QJornpU Kam ^rlynnl IGibratH LminnnJ^S'^S" "n'veralty Library KFM2830.T4S 1856 Thomas' town officer : 3 1924 024"686'63'o' Cornell University Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024686630 THOMAS' TOWN OFFICER. A DIOEST OF THE LAWS OF MASSACHUSETTS IN RELATION TO THE POWERS, DUTIES AND LIABILITIES AMD av TOWN OFFICERS; WITH THE NECESSAEY FORMS. NEW EDITION, SEVISED, COREECTED, AND BROUGHT DOWN TO THE PRESENT TIME, B Y DWIGHT FOSTER AND JAMES E. ESTABKOOK, COUNSELLORS AT LAW. WORCESTER: PUBLISHED BY ENOS DORR & CO. 18 5 6. 7? ///33A Entered according to the act of Congress, in the year 1856, by ENOS DORR & Co., In the Clerk's Office of the District Court of Massachusetts. PKINTBD BY HENRY J. HOWLAND, WORCESTEE. A tf!RT l^*> The last edition of this Book was published in 1 849, Many new laws have been passed since that time, to some extent inconsistent with existing ones, which nevertheless were left unrepealed unless by implication. In such instances, the editors have published both provisions, without undertaking to express their own opinions upon questions of difficulty and delicacy. It is hoped the work will continue to be regarded a convenient and trustworthy manual for those engaged in the administration of town affairs. CONTENTS. Towns . - . 13 Powers of Towns 13 Town Meetings - . . 19 Town Officers, and their Election - - - 23 Assessors _ -i 27 Assessment of Taxes . 31 I. Persons and property subject to, or exempted from taxation 31 n. When and to whom property shall be assessed 37 ni. Mode of assessing taxes 45 Discount on and abatement of Taxes - 57 AUOTIONEEKS 60 CoLLECTOKs of Taxes 63 CoiiLEOTioN of Taxes - 66 Constables - .84 Elections 93 I. Qualification of voters 93 n. Meetings for Elections 98 ni. Mode of conducting Elections - - 99 IV. Election and returns of elections of State Officers 106 v. Election and returns of elections of County Officers 111 VI, Election and returns of Elections of Representa- tives to Congress and Presidential Elector 119 Pence Viewers and Fences - 123 Field Drivers and Impounding and distraining Cattle 132 FiKE Department - 140 I. Enginemen - 140 II. Firewards 145 III. Incorporated Fire departments 147 Health, Board of 151 Measurement, Inspection &c., of certain articles of Mer- chandize - - - 167 I. Wood, Bark and Charcoal - 167 II. Anthracite, Bituminous or Mineral Coal 171 ni. lumber and Timber - - 172 Yt CONSENTS. IV. Shingles and Claptoards and Marble IT'S" v. Hoopa and Staves - - l^S VI. Upper Leather - 180 VU. Beef - - - - - 181 VIII. Wheat, Corn, ©rain- and Meal, - - 182 Pabishes - - - - 184 Poor - - - 198 I. Overseers of Poor - - - - 198- n. Settlement of Paupers - - 203 TTT- Support of Paupers - - - 217 IV. Lunatic paupers - ■' 237 Schools - - -' 2i4 I. What Schools to be supported by Towns 244 n. School books and studies ----- 247 HI. School Commfttee - - - - 249 IV. State Scholarships - - .-261 V. School Districts -' - 265 VL Union School Districts -- 282 VII. High School Districts - - 284 VIII. Contiguous School Districts in'adjoiuing Towns 285 IX. School Returns and distribution of School Fund 287 X. General Provisions - 292 SfiLEOTMEN" - - 296 I. Duties of Selectmen as to Jurors - 297 n. Duties of Selectmen as to Spendthrifts and insane persons - BOS' in. Duties of Selectmen under laws concerning the manufacture and sale of spirituous and in- foxicating. liquors - - 31 1 IV. Duties of Selectmen in erecting and maintaining Guide-posts - 314 V. Duties of Selectmen in the perambulation of Town lines , - . 316 VI. Duties of Selectmen as to Common sewers ajid drains 319' VII. Duties of Selectmen as to binding Orphan children 323 "^in. Duties of Selectmen as to offensive trades, The^ atrical Exhibitions, &c. - .325- IX. Duties of Selectmen as to Oysters and Shell fish in certain towns - - 332' X. Duties of Selectmen as to Hay Scales 335 XL Duties of Selectmen as to the keeping of gunpow- der and guncotton - - . 337 CONTKNTS. ■ VII XII. Duties of Selectmen as to dealers in second hand articles - - - - 339 XIII. Power of Selectmen as to reeognizanoe of Towns 340 XIV. Duties of Selectmen in laying out town and pri- vate ways 340 XV. Duties of Selectmen under the Militia Laws 352 XVr. Duties of Selectmen concerning hawkers and pedlars 358 XVII. Duties of Selectmen as to railroads 363 XVIII. Other duties of Selectmen 367 Purveyors of Highways and repair of Highways 371 Town Clerk 382 I. General Duties 382 II. Duties of Town Clerks under Laws relating to marriage 391 in. Duties of Town Clerks as to returns of births, marriages and deaths - - 393 Town Treasurer - 397 Weights, Measures and Balances 400 WOBK-HOUSES - 407 Appendix — forms - i THE TOWN OFFICER. TOWNS. POWERS OF TOWNS. from raising, borrowing or expending money for illegal pmposefl. 11. Towns may make by-lawH. 32. To be approved by Court of Com- mon Pleas. 13. The Supreme Court can not re- viee their discretion. 14. If not reasonable, void. 1 5. Binding on aU persons coming within the town. 1(J. To be published, 17. Authority of cities to make by- laws. 18. Towns may make by-lawB ree- pecting the keeping of dogs. 19. Towns may suspend the opera- tion of certain laws relative to the kill- ing of birds. 20. Other powers of towns. 1. Towns to be bodies corporate as heretofore. 2. Towns may sue and be sued. 3. Towns may hold property, make contracts, Ac. r y . 4. Towns niay fjrant money for toirn schools, the poor, and other ne- cessary charges. 5. The Statute not an enumeration of objects lor which towns may raise money. 6. Kule to 'detennine what are neo- Hsory charges. 7. Enumeration of necessary char- ges. 8. Townsnotbound.even byexpress votes, for contracts not within the scope of corporate objects. 9. Illustration of the rule. 10. How towns may be restrained 1. The inhabitants of every town shall continue to be a body corporate, with all the powers heretofore exercised by towns, and subject to all the duties to which they have heretofore been liable. E. S. c. 15, § 8. 2. The inhabitants of towns, in their corporate capadty, may sue and be sued in the manner prescribed by law, and may appoint all necessary agents and attorneys in that be- half, lb. § 10. 3. Towns shall have power to hold real estate, for the public uses of the inhabitants, and to convey the same, either by vote of the inhabitants, or by a deed of their committee or agents ; to hold personal estate, for the pub- lic uses of the inhabitants, and to alienate and dispose of 2 14 TOWN OFFICEK. the same by vote or otiierwise ; to hold real and personal estate, in trust, for the support of schools, and for the pro- motion of education, within the limits of the town ; to make any contracts, which may be necessary and convenient for the exercise of their corporate powers, and to make any orders for the disposal or use of their corporate property, which they may judge necessary or expedient for the in- terest of the inhabitants, li. §11. 4. Towns shall have power, at any legal meeting, to grant and vote such sums of money as they shall judge necessary for the following purposes, that is to say, For the support of town schools : For the support and maintenance of the poor : For burial grounds ; and For all other necessary charges arising within the same town. lb. § 12. 5. It seems very clear that the above statement was not intended to be an enumeration of objects and purposes for which towns may raise money, but the expression of a few leading and prominent objects, by way of instance, and a general reference to others, under the term " other neces- sary charges." 12 Pick. 230. 23 Pick. 76. 6. To bring any appropriation within the description of necessary town charges, it must be for the execution of some corporate power, the performance of some corporate duty, or the enjoyment of some corporate right as estab- lished by law, or by long usage. 23 Pick. 76. In relation to usage, the Supreme Court remark in the same case, that it is not a casual or occasional exercise of a power, by one or a few towns, which will constitute such a usage ; but it must be a usage, reasonable in itself, gen- eral among all towns of like situation, as to settlement and population, and of long continuance. 23 Pick. 79. 1. Some of these charges, besides those for the support of the poor, schools, and for burial grounds, are — TOWNS. 15 The payment of municipal officers. 13 Mass. 279. The support of such actions as towns may be parties to. Ih. The making and repair of townways, causeways and bridges. R. S. c. 24, § 68. i.-. 2.3, § 1. The making and repair of highways within the town. Ih. c. 24, § 73. The erection and maintenance of guide posts. Ih. c. 25, §28. The erection of town houses, and market houses, for the use of the town. 13 Mass. 274. 23 Pick. 71. 5 Met. 40. The erection of alms houses, and work houses, i?. S. c. 16, §1. The erection of hospitals for the reception of persons having diseases dangerous to public health. Ih. e. 21, § 35. The inoculation of inhabitants with the cow pox. Jh. c. 21, § 45. The establishment of a quarantine ground. lb. c. 21, §27. Bounties on the destruction of noxious animals. Ih. c. 55, § 3. The maintenance of watch within the town. Ih. c. 17, §7. Provision for the extinguishment of fires, including the purchase and repair of engines, and other fire apparatus — the compensation of engineers, firewards, and engine men. 19 Pick. 485. 3 Met. 163. The construction of reservoirs for water to supply fire engines. 3 Met. 163. The indemnification of owners of buildings destroyed to stop fire in certain cases. R. S. c. 18, § 7. 8 Met. 462. The indemnification of its officers against liabilities in- curred in the bona fide discharge of their duties, even 16 TOWN OFFICER. thougt they tave exceeded their legal rights and authori- ty. 7 Pich. 18. 18 Pick. 566. The equipment of poor soldiers, and other expenses in- ciirred by the discharge of duties, imposed on towns by the Militia Laws. R. S. c. 12, § 27. Stat. 1837, c. 240, § 10, 11. Providing armories for volunteer companies. Stat, 1840, c. 72, § 20. The purchase of Hay scales, and Standard Weights and Measures. H. S. c. 28, § 95. lb. c. 30, § 8. The maintenance of one or more Pounds, lb. c. 18, § 19. The support of one or more Public Clocks. 12 Pick. 227. The payment of rewards oiFered by Selectmen, for secur- ing persons charged with crime. Stat. 1840, c. 75. The establishment and maintenance of Public Libraries. Slat. 1851, c. 305. The writing and publication of Town Histories. Stat. 1854, c. 429. 8. Corporations can only exercise their powers over their respective members, for the accomplishment of limited and well defined objects. And a town in its corporate capa- city, will not be bound, even by the express vote of the majority, to the performance of contracts, or other legal duties not coming within the scope of the objects and pur- poses for which they are incorporated. 23 Pick. 75. 1 Met. 284, 287. 11 Pick. 396. 13 Mass. 212. 16 Mass. 48. 9. To give an illustration of the foregoing rule. A town has no aiithority to raise money to aid in the con- struction of a road which by law is to be made at the ex- pense of the County ; and, consequently, a tax laid by the town, for the purpose of collecting the money, is illegal and void. 11 Pick. 396. See also 13 Mass. 272. TOWNS. 17 10. Whenever any city or town shall have voted to raise by taxation, or. by pledge of its credit, or to pay over from moneys in its treasury, any sum or sums of money, for any other purpose, or purposes, than those for which it may have the legal right and power so to do, the Supreme Ju- dicial Court shall have power, upon the suit, or petition, of any inhabitants, not less than ten, of such city or town, liable to be taxed therein, briefly setting forth the cause of complaint, to hear, and finally determine in equity all such cases ; and any justice of said court may, as well in vaca- tion as in term time, issue an injunction, and make all such orders and decrees as may be necessary or proper to restrain or prevent any violation or abuse of said legal right and power of such city or town, until the final de- termination of such causes by the Supreme Judicial Court ; and no order or decree of said court, or of any justice thereof, shall be discharged or invalidated on account of want of jurisdiction in said court or justice. Stat. 1847, C.37. 1 1 . The inhabitants of any town in this Commonwealth, shall have power and authority to make all by-laws that may be necessary to preserve the peace, good order, and internal police of their respective towns : or for directing and managing their prudential afiairs, and they may annex suitable penalties, not exceeding twenty dollars for any one breach thereof, to be recovered by complaint, before any justice of the peace for the county in which the ofience may be committed, and to enure to such uses as the towa may direct. R. S. c. 15, § 13. Stat. 1847, c. 166. 12. The by-laws must be approved by the Court of Common Pleas for the county, and must not be repugnant to the laws of the Commonwealth, lb. 13. The Supreme Court have no jurisdiction to revise the judgment of the Court of Common Pleas in reference to by-laws. 3 Ouih. 336. 2* 18 TOTVN OFl-ICEE. 14. These by-laws, if reasonable, have as full force as if made by tbe legislature, and wbether reasonable or not, is a question of law for the Court. If unreasonable they are void. 3 Piclc. 473. 6 Pick. 191. 1 Met. 135. 15. The by-laws duly made by any town shall be bind- ing upon all persons coming within the limits thereof, as well as upon the inhabitants of such town. R. S. c. 15, «. 14. 16. All by-laws made by any town shall be published in one or more news-papers printed in the county where such town is situated. lb. § 15. » 17. The city council of any city shall have power and authority to make all by-laws, not inconsistent with the laws of the Commonwealth, that may be necessary to pre- serve the peace, good order, and internal police of the city, and may annex suitable penalties, not exceeding twenty dollars for any one breach thereof, to be recovered by com- plaint before any police court in such city, or any justice of the peace in a city where no police court is established. Stat 1847, c. 262. 18. The inhabitants of any town and city council of any city, may make such by-laws concerning the licensing, reg- ulating and restraining of dogs, going at large, as they shall deem expedient, and may affix any penalties, not ex- ceeding ten dollars for any breach thereof: providing that no such by-law shall extend to any dog, not owned or kept in such town, and that no person shall be obliged to pay more than two dollars, annually, for any license grant- ed under the provisions of this section. JR. S. c. 58, § 10. Stca. 1850, c. 245. All money received for the licenses in any town, shall be paid to the Treasurer for the use of the town. i6. § 11 . 19. Towns may suspend by vote, in whole, or in part, the operation of the second and third sections of the fifty- third chapter of the Revised Statutes, and of Statutes TOWNS. 19 1855, chapter 197, in relation to the preservation of cer- tain useful birds. R. S. c. 53, § 4. Stat, 1855, c. 197. The vote to suspend must be passed at the annual meet- ing, and for a term of time not exceeding one year. lb. 20. The other powers and duties of towns will be found under the titles of the officers, on whom their execution devolves. TOWN MEETINGS. I and qualified may sign warrants, &c, 11. Meetings may be adjourned. 12. Town meetings to be proved by records, nuless, &c. 13. The voting of persons not legal- ly authorized, not to vitiate proceed- ings. 14. At what town meetings moder- ators shall preside. 15. At what the selectmen. 1 6. Choice of moderator. 17. His powers and duties. 18. No person shall speak without leave of the moderator. 19. Disorderly cof'duct in town meet- ings, how prevented and punished. 20. Moderator may administer oatht of oflSce. 21. Meetings for elections. 1. When to be held. 2. Warrant shall issue for all meet- ings. 3. The same warrant may include two or more meetings. 4. Warrants need not have seal. 5. Contents of warrants. 6. Same subject. 7. Selectmen shall insert in war- rants any subject requested by ten vo- ters, 8. If selectmen refuse to call a meet- ing, one may be called by a justice of the peace. 9. If a major part of the selectmen die, resign, &c., the rest may call meet- ings. 10. In case of failure to elect a fall board, or if a part refuse to act, or omit to be qualified, the selectmen chosen 1. The annual meeting of each town shall be held in the month of March or April ; and other meetings shall be held at such other times as the selectmen shall order, i?. S, c. 15, § 18. The annual meeting may be held in the month of Feb- ruary in any town which, at a legal meeting notified there- for, shall vote so to do. Stat. 183*7, c. 52. That towns may avail themselves of the above provision, a change would seem necessary in the third and fourth sections of chapter third in the Revised Statutes, regular- ting the return of tax bills by collectors and the making out and posting up of lists of voters by selectmen. E. S. c. 3, § 3, and 5. 20 TOWN omcER. 2. Every town meeting shall be held in pursuance of a warrant under the hands of the selectmen, directed to the constables or some other persons, appointed by the select- men for that purpose, who shall forthwith notify such meeting, in the manner which shall have been ordered by the by-laws, or by any vote of the town. H. S. c. 15, § 19. Where the warrant was signed by one selectman only, " by order of the selectmen," the meeting -was held to be illegal, and its proceedings void. 6 Met. 340. 3. The selectmen may, by the same warrant; call two or more distinct town meetings for distinct purposes. lb. §20. 4. Warrants for town meetings need not have seals an- nexed to them. B. S. c. 15, § 19. 10 Mass. 105. 5. The warrant shall express the time and place of the meeting, and the subjects to be there acted upon ; and nothing acted upon shall have any legal operation, uidess the subject matter thereof shall have been inserted in the warrant for calling the meeting. H. S. c. 15, § 21. 6. To render valid a vote of a town granting money for any particular object, it is not necessary that the warrant for the meeting should state specifically, that the inhabit- ants will be called to act on the question of granting mon- ey for that purpose, if the subject to be acted on is dis- tinctly stated, and it is one which will be likely to require a grant of money. 9 Pick. 97. 21 Pick. 68. 7. The selectmen shall insert in the warrant all subjects, which may, in writing, be requested of them by any ten or more voters of such town. S. S. c. 15, § 22. 8i. If the selectmen of any tovni shall unreasonably re- fuse to call a meeting, any justice of the peace of the county, upon the application of ten or more legal voters of the town, may, if he shall think proper, call such meeting, by a warrant under his hand, directed to the constables of the TOVfNS. 21 town, if any there be, and otherwise, to any of the persons applying therefor, directing them to summon the inhabit- ants qualified to vote in town affairs, to assemble at ths time and place and for the purpose expressed in the war- rant". Ih. § 23. 9. If by reason of death, resignation, or removal from town, a major part of the selectmen originally chosen in any town shall vacate their ofSco, those who remain in of- fice shall have the same power to call a town meeting, as the whole number first chosen would have had. lb. § 24. 10. Whenever any town at their annual meeting, shall fail to elect a full board of selectmen, or whenever a part of the selectmen chosen shall refuse to act, or omit to be qualified according to law, the selectmen or selectman cho- sen and qualified, may sign warrants for town meetings until a full board shall be elected, and any town may, at a meeting held subsequently to the annual meeting, elect selectmen to fill any vacancy which may exist in the board. Stat. 1855, c. 8. 11. Any town meeting may be adjourned from time to time, and to such place, within the town, as the meeting shall determine, lb. § 25. 12. If it appears of record that a town meeting was reg- ularly called and held, and officers chosen, without any objection on account of deficiency in warning, any anterior irregularity provable only by parol, cannot vitiate the choice of any officers had at such meeting. 1 Pich. 113. 13. If persons should vote, not legally authorised, with- out being challenged, it would not vitiate the proceedings. 3 Pich. 243. 14. At all the town meetings, except those held for the election of governor, lieutenant governor, senators, repre- sentatives in the general court, representatives in Congress, electors of president and vice-president of the United States, and county commissioners, a moderator shall be first cho- sep. lb. § 26. 22 TOWN orriCEE. 15. At all meetings for tte election of governor, lieuten- ant governor, senators, representatives m the general court, representatives in Congress, electors of president and vice- president of the United States, and county commissioners, the selectmen shall preside. Con. c. 1, § 2, art. 2. lb. c. 2, §1, art. 3. 76. c. 2, § 2, art. 1. R.S.c.5,%6. Ih. c. 6, § 3. lb. § 16. R. S. c. 14, § 17. 1 6. During the election of a moderator, the town clerk, if present, shall preside ; and if there shall be no town clerk in office, or he shall be absent, the selectmen shall preside ; and the town clerk and selectmen, respectively, shall, in such case, have all the powers, and perform all the duties of a moderator. R. S. c. 15, § 27. 17. The moderator shall preside in the meetings, for which he is chosen, and shall regulate the business and proceedings thereof ; he shall decide all questions of order, and shall make public declaration of all votes passed ; and when any v6te so declared by him, shall, immediately upon such declaration, be questioned by seven or more of the voters present, he shall make the vote certain by polling the voters, or dividing the meeting, unless the tovm shall, by a previous vote, or by their by-laws, have otherwise provided. /6. § 28. ' 18. No person shall speak in the meeting, before leave first obtained of the moderator, nor while any other person is speaking by his permission ; and all persons shall be si- lent at the request of the moderator. lb. § 29. 19. If any person shall conduct himself in a disorderly manner, and after notice from the moderator shall persist therein, the moderator may order him to withdraw from the meeting, and on his refusal may order the constables or any other persons to take him from the meeting and con- fine him in some convenient place, until the meeting shall be adjourned ; and the person so refusing to vidthdraw, shall, for such offence, forfeit a sum not exceeding twenty dollars to the use of the town. lb. § 30. TOWNS. 23 20. The moderator of any town meeting may, in open meeting, administer the oaths of office to any town officers chosen thereat. 21. For provisions in relation to meetings for elections, see title "Elections." TOWN OFFICERS, AND THEIR ELECTION. 1. What town officers to be chosen. 2. What town officers to be sworn. 3. What town oflacers to be chosen by written ballots. 4. " Written " inclndes printing. Ac. 6. Peo^ty for neglecting to choose selectmen or asessors. 6. In case of such neglect, commis- Bioners may apptjnt assessors. 7. Commissioners may appcint aa- sessors, when assessors and selectmen chosen by any town do not serve. 8. Officers to be appointed by select- men. ^ 9. Town clerks to give rotice to per- sons ele'jted that they may be sworn. 10, Penalty-for not taking the oath of office. 11. Persons elected to any town of- fice in which oath is not required, to be summoned to appear before lown clerk and declare acceptance. Penalty for neglect. 12. Any town office to be deemed vacant if person elected does not file certiQcate of oath or declaration of ac- ceptance witbin seven days. 13. Town offices va<^ted by removal from town. 14. Vacancies may be filled by a new choice. 15. No person obliged to eerve two years successively in the eame office. 16. Town officers embezzling town property giiilty of larceny. 1 . At the annual meeting, every town shall choose from among the inhabitants, the following town officers, wha shall serve during the year, and until others shall be cho- sen and qualified in their stead, that is to say : A town clerk, who, if present, shall be sworn to the faithful discharge of his duty, either by the moderator of the meeting, or by any justice of the peace. Three, ^re, seven or nine selectmen : Three or more assessors, and if the town shall deem it expedient, three or more assistant assessors : Three or more overseers of the poor : A town treasurer : A school committee of three, Rre or seven persons : One or more surveyors of highways ; Constables, who shall also be collectors of taxes, unless Other persons shall be specially chosen collectors : 24 TOWN OFFICER. Measurers of wood and bark, unless tte town shall au- thorize the selectmen to appoint them : Sealers of leather," and all other usual town officers. R. S. c. 15, § 33. 2. All the town officers, designated by name in the pre- ceding section, except the overseers of the poor, tything- men and the school committee, shall be sworn to the faithful discharge of the duties of their respective offices. Ih. 3. The election of town clerks, selectmen, assessors, school committees and town treasurers, and also of the moderator of the meetings held for the choice of town officers, shall be by written ballots ; and the election of all other town officers shall he in such mode as the meet- ing shall determine. R. S. c. 15, § 34. The election of all constables of towns, shall hereafter be by written ballots. Stat. 1851, c. 94, § 3. 4. The word " written," includes printing, engraving, lithographing, or any other mode of representing words and letters. R. S. c. 2, § 6. 5. Every town which shall neglect to make choice of selectmen or assessors, shall forfeit a sum not exceeding five hundred nor less than one hundred dollars, as the county commissioners of the county, in which such town is, shall order. R. S. c. 1^, § 35. 6. In case of such neglect to choose selectmen or asses- sors, the county commissioners may appoint three or more assessors for such town. Jb. § 37. 7. "Whenever neither the assessors nor the selectmen, chosen by any town, shall accept the trust, or, having ac- cepted it, shall not perform the duties thereof, the county commissioners may'appoint three or more suitable persons, within the county, to be assessors of taxes, for such town ; and the assessors so appointed, shall have the like powers, and be subject to the like duties, and receive the like TOWNS. 25 compensation, as assessors chosen by the town. Ih. § 36. 8. The selectmen of each town shall, in the month of March or April, annually, appoint the following town of- ficers, unless the inhabitants themselves, at their annual meeting, shall choosejthem, namely ; One sealer of weights and measures ; and any other number, which the inhabitants shall, at their annual meet- ing, vote to have appointed. As many measurers of fire-wood and bark, (whose fee* shall be also established by the selectmen,) as the inhab- itants shall at their annual meefing determine : The selectmen of every town, which has town scales, for the weighing of hay, shall appoint one or more persons to have the superintendence of the hay scales belonging to their town. lb. 38. 9. After the election or appointment of any town ofii- cers, who are required to take an oath of office, the town derk shall forthwith make out a list, containing the names of all such officers, as shall not have been sworn by the moderator, and a designation of the offices to which they are chosen, and deliver the same, with his warrant, to a constable, requiring him, within three days, to summon each of the officers, so chosen, to appear and take the oath of office, before the town clerk, within seven days after such notice ; and the constable shall, within seven days, make return of the warrant to the town clerk, lb, 39. 10. li any person so chosen, and summoned, and not exempted by law from holding the office, to which he is elected, shall not, within seven days, take the oath of office, before the town clerk, he shall, unless the office to which he is chosen shall be that of constable^ or some other for which a different penalty is provided, forfeit the sum of five dollars to the use of the town ;. provided, always that every such person, who shall take the oath of office 3 26 TOWN OFFICEE. before a justice of the peace, and file "a certificate tiereofi under tte hand of sncli justice, witli the town clerk, with- in the said space of seven days, shall be exempted from said penalty, lb. 40. 11. All persons elected, or appointed to any town ofiice, in which an oath of ofiice is not required shall be sum- moned in the manner provided in the thirty-ninth section of the fifteenth chapter of the Kevised Statutes, in the case of ofiicers, who are required to take an oath, and shall be required to appear before the town clerk, and de- clare their acceptance or refusal of such office, or to file a declaration in writing thereof, with the town clerk, with- in seven days after such notice, and the town clerk shall make a record of such acceptances and refusals and any persons so elected or appointed and summoned and not exempted by law from holding the office to which he is elected, who shall neglect to declare his acceptance as aforesaid, shall forfeit the sum of five dollars to the use of the town. Stat. 1853, c. 283. 12. Whenever any person elected and appointed to any town office, and duly summoned shall in case an oath of office is required, neglect to take such oath before the town clerk, and to file with the town clerk a certificate of his having taken such oath before a justice of the peace within seven days after notice as aforesaid, or in case such oath is not required, shall neglect to declare his acceptance as aforesaid within seven days after such notice, or shall within seven days after such notice declare his refusal of guch office, such office shall be deemed thereby to be va- cated and the town may fill sucli vacancy by a new choice at any other legal meeting. 1853, c. 283, § 2. 13. Every person, removing from a town in which he held a town office, shall be deemed thereby to have vaca- ted such office. Ih. 41 . 14. Whenever there shall be a vacancy in any town ASSESSOBS. 27 office, by reason of non-acceptance, death, removal, insan- ity or other disability of any person chosen to office, the town may fill such vacancy, by a new choice at any other legal meeting. lb. 42. 15. No person shall be obliged to serve in the same of- fice two years successively. lb. 43. 1 6. If any town, city, or county officer in this com- monwealth shall embezzle or fraudulently convert to his own use, or shall fraudulently take or secrete, with intent to convert to his own use any money, note, bUl, obligation or security, or any other effects, or property belonging to, or in possession of said town, city, or county, he shall be deemed by so doing to have committed the crime of lar- ceny, and shall upon conviction thereof be punished in the same manner as is now provided by the one hundred and twenty-sixth chapter of the Revised Statutes, in cases of embezzlement by bank officers. 1855, c. 487. ASSESSORS. 1. To 'he choBPn by ballot, and sworn. 2. Form of oath. Duties of assiatant assessors. To be Bwoin, renalty if assessors neglect to take Assessors responsible only for fi- 10. Toprepare lists of perBons liable to be enrulled in militia. 11. Persons l-able. 12. Persons exempt. 13. Penally for not giving informa- tion to. 14. Lists to be returned to town clerks. 15. Eeturns to be made by asseBSora to school ciimmittee. 16. Other powers and duties of aa- 3. 4. 5. oatb. 6. 4elity. 7. Not liable for acciilentally assess- ing person not an inha,bitant. 8. Comiiensaiion cf assessors. S. Additional allowance. 1 . Assessors are to be chosen by written ballot, and to be sworn. R. S. c. 15, § 33, 34. 2. The assessors' oath of office, shall be in substance as follows : You, being chosen assessors, or an assessor (as the case may be) for the town of , for the year ensu- ing, do swear, that you will impartially, according to your best skill and judgment, assess and apportion all such tax- 28 lOWl* OFFICES. es, as you may, during that time, be directed to assess, and that you will faithfully discharge all other duties of said office. R. S. c. 15, § 55. 3. In all towns, where assistant assessors are or may be chosen, they shall, in their respective wards or districts, assist the assessors, in taking a list of the ratable polls, in estimating the value of the real and personal estate, in said wards or districts, and in Hiaking out lists of persons, qualified to vote at elections in said towns. lb. § 56. 4. Assistant assessors shall be sworn to the faithful dis- charge of the duties of their office, lb. 5. If any assessor after having notice of his election, shall neglect to take the oath of office, he shall forfeit to the use of his town, a sum not exceeding fifty dollars, to be recovered by indictment, lb. 57. 6. The assessors shall not be responsible for the assess- ment of any tax, in any town, parish, religious society, or school district, for which they are assessors, when such tax shall have been assessed by them, in pursuance of any vote for that purpose, certified to them by the clerk or other proper officer of such town, parish, religious so- ciety or school district ; but they shall, in such case, be responsible only for the want of integrity and fidelity on ■their own part. R. S. c. 7, § 44. 7. Under the preceeding section, the supreme court has held that assessors, conducting themselves with fidelity and integrity, in assessing a tax in pursuance of a vote, duly certified to them, were not responsible for accident's :ally assessing a person not an inhabitant of the town, and not liable to be taxed. While acting within their ^.ppro-. priate sphere, they have the same protection and immuni^ .ties which judicial officers have. 21 Pick. 382. Under the provision of the statute of 1823, c. 138, § 5, the decision was otherwise. 4 Pick. 399. 15 Pick. 44, 8. Each assessor shall be paid by his town the sum gf ASSKS80S8. 29 one dollar and a half a day, for every wkole day, that lie shall be ' employed in that service, together with such other compensation as the town shall allow. S. S. c. 7, §45. ^/aM855, c. 224. 9. Where a town votes that its assessors shall be al- lowed a certain gross sum for their service during the year, they are not entitled under the preceding section, to one dollar a day in addition to , the sum thus voted, unless it appears from the terms of the vote, that such was the intention of the town. But they are entitled to the com- pensation of one dollar a day, although it exceeds the sum voted by the town, and if the sum voted exceeds the stat- ute compensation, they, are entitled to such sum. 3 Met. 431. 10. It ia the duty of the assessors to prepare annually a list of all persons living within their respective limits liable to be enrolled in the militia. Slat. 1840, c. 92, § 3. 11. Every able bodied white male citizen, resident with- in this Commonwealth, who is or shall be of the age of eighteen years, and under the age of forty-five years, ex- cepting persons enlisted into volunteer companies, persons absolutely exempted by law, idiots, lunatics, common drunk- ards, vagabonds, paupers, and persons convicted of any infamous crime in this or any other State, shall be en- rolled in the militia. lb. § 1. 12. The persons absolutely exempted are the vice-pres- ident of the United States, the officers, judicial and exec- utive, of the government of the United States, the mem- bers of both houses of Congress, and their respective of- ficers, all custom house officers with their clerks, all post- masters, post officers, post riders, and stage drivers who are employed in the care and conveyance " of the mail of the United States, all ferry-men, employed at any ferry on the post road, all inspectors of exports, all pilots, and all 3* so TOWN OFFICBB. mariners actually employed in tlie sea service of any citi- zen or merchant within the United States. Justices of the supreme judicial court and court of com- mon pleas. Judges of the municipal court and of probate. Registers of probate and of deeds. Sheriffs. All officers who have held, or may hereafter hold, com- missions in the army or navy of the United States, for the term of five years. All officers who have held, or may hereafter hold, com- missions in the militia in this or any other State of the United States, for the term of five years, or who have been or shall be hereafter superseded and discharged, or who have held, or shall hereafter hold, commissions in any corps, at the time when it is disbanded, and all staff offi- cers, whose offices shall have or may become vacant by the discharge of their commanding officers. Ministers of the gospel, of every denomination. The superintendents, other officers, and assistants, em- ployed in or about any department of the Massachusetts general hospital, in Boston and Charlestown, and in the State lunatic hospital at Worcester, during the time of such employment. The officers and guards employed at the State prison in Charlestown, and in any of the jails and houses of correc- tion in the Commonwealth. E. S. e. 12, § 1 & 73. Persons of the religious denomination of Quakers or Shakers. Stat. 1841, c. 106, § 7. 13. Every keeper of any tavern or boarding house, and every master and mistress of any dwelling house, shall upon application of the assessors within whose? bounds such house is situated, or of any persons acting under them, give information of the names of aH persons residing in such house, and liable to enrollment or to do militaiy ASSESSMENT OF TAXES. 31 duty ; and every such person, so liaHe, shall, upon the like application, give his name and age ; and if any such keep- er, master, mistress, or person aforesaid, shall refuse to give such information, or shall give information whichis false, he or she shall forfeit and pay twenty dollars. Stat. 1840, c. 92, § 2. H. S. c. 12, § 103. 14. The assessors shall, in the month of May annually, return the list or lists of the names of persons liable to be enrolled, to the town clerk. Stat, of 1840, c. 92, § 3. Stat, of 1843 c. 93, § 7. 15. It shall be the duty of the assessors of the several towns and cities in this Commonwealth, to ascertain, in the month of May of each year, the number of persons between the ages of five and fifteen years in their respec- tive towns or cities, and report the same to the school com- mittee of said towns or eifies, on or before the first day of October following. Stat. 1855, c. 15. 16. For other powers of assessors, see titles, " assess- ment of taxes," " collectors," and " collection of taxes," " schools," and " school districts," " surveyors of high- ways," and " fire departments." ASSESSMENT OF TAXES. 1. PERSONS AND PROPERTY SUBJECT TO, OR EXEMPTED FROM TAXATION. 1. Foil tax on persons between 20 and 70 years of age. 2. Persons between those ages ex- empted. 3. This exemption may be waived. 4. Persons over 70 years of age lia- ble to poll tax nnder Stat, of 1844. 6. Object of Statute. 6. Persons over 70 years of age ex- empted. 7. AH property subject to taxation, except, &c. 6. Keal estate. 8). Personal estate. 10. Taxation of Income. 11. Taxation of railroad stock, held by hank, as collateral security. 12. Persons and property exemp- ted—property of the United States, and Commonwealth. Except real es- tate mortgaged to it and in its posses- sion for breach of condition— Plats when flUed up by a rail roa4 compar ny, are not exempt— Properly of cer- tain institutions, if, 40.— Blinker HiQ Monument — Household furniture, Ac. —Churches, Tombs, Cemeteries— Sal- aries of U. S. officers— Stocks of 0. 8. — Cattle, &c. — Indians — Polls and estates of persons unable to pay- Property of School districts. Property of incorporated agricultural societies. Personal property of widows or un- married females. Portion of the cap- 32 TOWN omCEE. ital stock of banking corporations or- ganized under tlie general act of 1851. 1 3. Polls and estates of persons re- siding on lands ceded to U. S. 14. Property of Western Bail Eoad Corporation. 15. Personal estate of Mutual PSre Insurance Companies under certeJn conditiuns. 1. A poll tax shall be assessed upon every male inhab- itant of this Commonwealtli, between the ages of fwenty and seventy years, whether a citizen of the United States, or an alien, except persons now exempt by law from taxa- tion. Slat, of 1843, c. 87. 2. The persons exempted from the poll tax by law, are ; 1st. All Indians. 2nd. Those who by reason of age, infirmity and pover- ty, may, in the judgment of the assessors, be unable to contribute towards the public charges. R. S. c. 7, § 1&5. 3. This exception was intended as a benefit to those who by reason of age, infirmity, or poverty are unable to contribute, and one which if they so elect they may waive ; and in such case it would not be in the power of the as- sessors to omit them in the assessment, or abate their tax- es agMnst their consent, with a view to affect their elective franchise, or for any other purpose. 11 Pick. 543. 5 Met. 594. 4. As to persons over seventy years of age, the provi- sion of the statute is as follows : A poll tax shall be as- sessed upon every male inhabitant of the Commonwealth, above the age of seventy years, excepting ^aitper* and per- sons under guardianship, whether a citizen of the United States, or an alien, in the manner heretofore provided by law. Stat, of 1844, c. 145. 6. -This statute seems to have been passed in conse- quence of the opinion expressed by the Supreme Court to the House of Representatives, " that persons over sev- enty years of age are no more entitled on that account than any other persons to vote without the actual pay- ment of a tax, though not liable to a poll tax. See 5 Met. 691. ASSESSMENT OF TAXES. 6. Tiie only classes expressly excepted, are paupers and, persons under guardianship, neither of whicli can exercise the elective franchise, whether taxed or not. The word "pauper" has a precise technical meaning, designating persons receiving aid and assistance from the public under the provisions made by law for the support and mainte- nance of the poor. It does not include persons who may be exempted from taxation for their age, infirmity, or pov- erty, under the discretionary authority given to the asses- sors. 11 Pick. 540. In relation to the polls of persons over seventy years of age, the Legislature woidd seem to have left no discretion with the assessors*. The polls of persons under guardianship, and under sev- enty years, are not exempted from taxation. £. S. c. 7, 7. All property, real and personal, of the inhabitants of this State, not expressly exempted by law, shall be sub- ject to taxation. Ji. S. c. 7, § 2. 8. Real estate shall, for the purposes of taxation, be construed to include aU lands within this State, and all buildings and other things erected on, or affixed to the same. lb. § 3, 9. Personal estate shall, for the purpose of taxation, be construed to include aU goods, chattels, moneys and effects, wheresoever they may be, all ships and vessels, whether at home or abroad, all moneys at interest, due the persops to be taxed, more than they pay interest for, and all other debts due to them more than they are indebted for, all public stocks and securities, stocks in turnpikes, bridges, and all monied corporations, whether within or without the State, and also incon;e from any profession, trade oj o Bnch Beeros to be the necessary concln&ioD, from the language of the etatoto a^ 1844, though the reason of the dlstihctiou ia not so obvious. 84 Town OFFICEE. employment, or from an annuity, unless th.e capital of such annuity stall be taxed in this State ; and all other property returned in the last preceding valuation, for the purpose of taxation. Ih. § 4. 10. Income, from any profession, trade or employment, shall not he construed to be personal .estate, for the pur- poses of taxation except such portion of said income as shall exceed the sum of six hundred dollars per annum, provided, however, that no income shall be taxed which is derived from any property or estate which is the subject of taxation. Stat. 1849 : c. 149. 11. A bank cannot legally be taxed for rail road stock, pledged to it as collateral security for a debt. 10 Met. 334. J 2. The following persons and property are exempt from taxation : The property of the United States and of the Common- wealth. B. S. c. 7, § 5. Any real estate of which the Commonwealth may be in possession, under a mortgage for a breach of any of the conditions therein named, shall be liable to taxation. Stat. 1853, 0. 122. The flats lying between the channels of Charles and Miller's rivers, outside of the location of the road of the Boston and Maine Railroad Extension Company, and filled up by the said company — pursuant to the authority given by iSifa^. 1845, c, 224, § 1, 'for the location of engine- houses and wood-houses and other purposes for the use of their road, and used, when so filled up, exclusively for such purposes, are not exempt from taxation. 8 Gush, 237. The personal property of all literary, benevolent, chari- table and scientific institutions, incorporated within this Commonwealth, and such real estate belonging to such in- stitutions, as shall actually be occupied by them, or by ASSESSMENT OP TAXES. 33 the officers of said institutions, for the piirposes for which they were incorporated, lb. The president and fellows of Harvard college, having built a dwelling house on land of the corporation, within the college yard, and leased the same to one of their pro- fessors, to be occupied by him as a residence for himself and his family, at an annual rent, — It was held, that this was not an occupation of the real estate of the college by one of its officers, within the exemption from taxation provided by the Eev. Statutes, e^. 7, § 5, clause 2 : other- wise, -if the building had been built for one of the pro- fessors, or officers of the college, and had been occupied by him, with the permission of the college, and without having any estate therein, or paying any rent therefor. 2 Cush. 611. The Bunker Hill Monument. lb. The household furniture of every person, not exceeding one thousand dollars in value ; and also his wearing ap- parel, farming utensils, and mechanic's tools necessary for carrying on his business, lb. All houses of religious worship, and the pews and fur- niture within the same, (except for parochial purposes.) lb. Whenever any building is appropriated in part only to the purposes of public worsMp, and in part to other pur- poses, the owners of such building shall be taxed for the value of all parts of such building not so appropriated to the purpose of public worship. 1 Met. 538. Stat, of 1841, c. 127. All tombs, and rights of burial. R. S. c. 7, % 5. Cemeteries owned by corporations duly organized for that purpose. Stat, of 1841, c. 114, § 7. The pay, salary, or official emoluments of officers of the United States. 16 Peter's Rep, 435. Stocks issued for loans made to the United States. 3 PeUrs, 449. 36 lOWN OFFICEB. All mules, torses, and neat cattle less than one year old ; and all swine and sheep less than six months old. £. S. c. 7, § 5. The polls and estates of all Indians. lb. The polls and estates of persons, who by reason of age, infirmity and poverty, may, in the judgment of the asses- sors, be unable to contribute towards the public charges. lb. All property belonging to common school districts, the income of which is appropriated to the purposes of edu- cation. Stat, of 1843, c. 85. The property, both real and personal, of all agriculural societies, which are now or may hereafter be incorporated. Stat. 1851, c. 215. No tax shall hereafter be assessed upon the personal property of any widow or unmarried female, or female minor, (whose father is deceased,) which was not received by gift, legacy, devise, or inheritance, provided, that the whole estate, real or personal, of such persons, whose per- sonal property is so exempted from taxation, does not ex- ceed in value the sum of five hundred dollars, exclusive of property exempted from taxation by existing laws of this State. Stat. 1855, c. 355. No banking corporation organized under " an act to au- thorize the business of Banking," passed in 1851, shall be taxed upon that part of its capital stock, invested and transferred to the auditor in pursuance of the seventh section of said act ; provided, however, that the proportion of the capital of any bank thus exempted from taxation shall in no case exceed three foiirths of said capital. Stat. 1852, c. 336. 13. Persons who live on lands purchased by or ceded to the United States, for navy yards, forts and arsenals, and when there is no other teservation of jurisdiction to the state ttian thsst of a right- to serve citil and criminal ASSESSMENT OF TAXES. 37 process on sucli lands, are not liable to be assessed for their polls and estates to state, county and town taxes in sucb towns. Opinion of Judges^ 1 Met. 580. 14. Tbe Western Rail Eoad Corporation are not liable to be taxed for the land not exceeding ^yQ rods in width, over which they were authorized to lay out their road, nor for buildings and structures erected by them thereon, if such buildings and structures are reasonably incident to the support of the road or to its propej and convenient use for the carriage of passengers snd property — such as houses for the reception of passengers, engine houses, car houses and depots for the convenient reception, preserva- tion and delivery, of merchandize carried on the road. 4 Met, 564. 15. Mutual Fire Insurance Companies are not liable to taxation for personal estate, invested in their corporate names and held by them for the purposes of their incor- ation. 7 Cush. 600. CL WHERE AND TO WHOM PEOPEKTT SHALL BE ASSESSED. 1. Poll tax aESPBsed where person is inhabitant, on the first of Miiy. Construction of ihe word inhahiU ant. 3, 4. 5. 6. 7. cbip. Domicil of taxation. Kules for detei mining domioL Poll tax of minors. FerBongil property of minors. Of other yei sons under guardian- Person liable in one town can- not he asseesed in another, even if he consent. 9. ehips or veEsels or tiorBes used for transportation of passengers, where taxed. 10. Other pereonal estate irith cer- tain exceptions taxable where owner is Inhabitant. 11. Case of a taxable psrson in any town on the first day of May, denying hia residence iherein, and ref^isinp to ■tate to the assessors where he consid- crB it to be &.c. IS. Personal property taxable in oth- er places than where owner is an in- habitant, viz : 1, Stock in trade, man- ufacturing, Ac. 2. Machinery employed in manufactures. 3. Horses, Ac. kept in tovi ns where owners do not reside :— 4. Personal property of persons under guardianship :— 5. or held in trust:— ^ deposited to accumulate : — 1, in hands of executors, Ac. undistributed:— 8. Property held as a ministerial fund. 13. Personal property mortgaged, Ao, taxed to holder. 14. Partners may he jointly asBesEed for joint stock in trade. 15. Keal estate where taxed. 16. Mortgaged real estate where taxed. 17. Contribution between landlord and tenant. 18. Water for mill puriwsee. 19. Keal estate of any person deceased, may be asEessed to heirs, &c., jointly, until notice given of dlTision : one lia- ble for the whole, with right to contri- bution. 38 TOWN orncEK. 20. Real estate of persons deceased | upou the personal estate of deceased where title is in dispute. persons, before the appointment of aa 21. Mode of enforcing taxes assessed | administrator or executor. 1 . The poll tax shall be assessed upon each taxable per- son in the town where he shall be an inhabitant on the first of May in each year. S. JS. c. 7, § 6. 2. The word " inhabitant," as used in the statutes, may be construed to mean a resident in any city or town. B. S. c. 2, § 6. So in our State constitution, the word resident is used a.ssynonjmov.synth. inhabitant. S:e Con. c. 1, §2. Art, 2, c. 1, § 3. Art. 4, c. 2, § 1. Art. 2, c. 6, § 2. Art. 1, Sf Jrt Sd, of amendments. 3. Questions of residence, inhabitancy, or domicil (for although not in all respects precisely the same, they are nearly so, and depend upon much the same evidence,) are among the most difficult presented for adjudication in courts of law. To a manual like this, the town officer will not took for a minute and elaborate discussion of the subject. We thought it well to state a few general, well settled rales, the careful application of which will enable him to settle many of the questions that arise. When the facts are complicated and conflicting, his safe course is to resort to legal counsel. 4. I. That place is the domicil of a person in which his habitation is fixed without any present intention of remov- ing therefrom. 10 Mass. 488, 501. Story's OonjUct of Laws, 41. Eneyc. Am. Domicil. By this rule two things must concur to constitute a legal domicil, first, residence, secondly, the intention of making it the home of the party ; there must be the fact and the intent. Ih. II. Every person must have a domicil somewhere. 23 Pick. 170. ni. A man can have only one domicil for taxation at one and the same time. lb. "WHERE AND TO WHOM PKOPEETY, &C. 39 IV. Every person tas a domicil of Ms origin, which he retains till he acquires another. Jb. 1 Met. 242. lb. 250. 3 Met. 199. V. A new domicil having been acquired is in like man- ner retained. lb. 10 Pick. 77, 98. VI. A domicil once fixed is not lost by absence for any purpose of a temporary nature with the intention of re- turning. Story G'j7i. of Laws, 42. 1 Met. 250. 5 Pick. 370. 10 Pick. 98. VII. If a person removes to another place with an in- tention to make it his permanent residence, it becomes in- stantaneously his place of domicil. Story, 45, 46. Whether a person removing from one town to another intends to change his residence, is a question of fact and not of law. 4 Oush. 190. VIII. Residence in a place to produce a change of dom- icil must be voluntary. If therefore it be by constraint or by arrest or by imprisonment, the antecedent domicil re- mains. Story's Con. of Laws, 46. IX. The place where a married man's family resides is generally to be deemed his place of domicil. Story's Con. of Laws, 45, 46. 5. All minors, liable to taxation, shall be taxed for their polls, in the towns where the parents, masters, or guardi- ans, who have the control of the persons of such minors, may reside ; and if any such minors shall have no parents, master or guardian vnthin this state, he shall be personally taxed for his poll, as if he were of full age. R. S. c. 7, §6. 6. All personal property belonging to minors urider guardianship shall be assessed to the guardian in the town where the minor may reside and have his home. Stat. 1855, c. 106. 7. The poll tax, of every other person under guardian- 40 TOWN OFFICEH. ship, shall be assessed to Hs guardian, in tlie town where the guardian is taxed for his own poll. lb. 8. A person liable to be taxed for his poll and personal estate in one town, cannot be legally asssssed for them in another, nor if he consent to such assessment is he bound to pay the tax. 12 Pick. 7. 9. All ships or vessels, at home or abroad, and all horse* employed in stages or other vehicles, for the transportation of persons, shall be taxed to the owners in the towns where' they reside. Slat. 1839, c. I&9, § 2. 10. All other personal estate, whether within or without this state, shall, except in the cases enumerated in the fol- lowing section, be assessed to the owner in the town where' he shall be an inhabitant on the first day of May. H. S. e. 7, § 9._ 1 1 . Whenever any taxable person, being in any town, of this Commonwealth on the first day of May in each year, shall, when called upon by the assessors of said town, deny his legal residence therein, and refuse to state to said assessors where he considers his legal residence to be, he shall, for the purpose of taxation, be deemed to be an in- habitant of said town, and his taxes shall be there assessed ;' but if said person shall, when thus called upon, deny his residence in said town, and designate another town as hia legal, residence, it shall be the duty of the assessors of said first-named town to notify the assessors of the town thus designated, and such notice shall authorize said last-named assessors to tax said person as an inhabitant of the town thus designated : provided, that nothing herein contained shall exempt said person from his liability to the payment of any tax legally assessed upon him in the town of hia legal domicil. Slat. 1850, c. 278. 12. The excepted cases mentioned in the preceding seci tion are the following, namely : First, All stocks in trade, including stock employed in "VVHEKE AND TO 'WHOM: PBOPEKTY, &C. 41 the business of manufacturing, or of any of th.e meclianie arts, in towns wittin the State, other than where the own- ers reside, shall be taxed in those towns, if the owners hire or occupy manufactories, stores, shops or wharves therein, whether the said stocks in trade, or the goods, wares and merchandize or other property composing or forming a part of the same, are within said towns on the first day of May, of the year when the tax is made, or elsewhere. St. 1839, «- 139, § 1. The owner of goods, wares, and merchandize, living in one town, and doing business in another, where he has a privilege in a counting room, and has goods stored, but does not otherwise hire or occupy any store, shop, or wharf, is not liable, within the provisions of the R. S. c. 7, § 10, c. 1, and St. 1839, c. 139, § 1, to taxation for such goods, in the town where he so does his business. 4 Oash. 543. Secondly, All machinery employed in any branch of manufactures belonging to any person or persons or to any corporation, shall be assessed in the city, town, or place where such machinery may be situated or employed. H. S. c. 7, § 10. lb. c. 2, § 6. S(. 18.37, c. 86. In assessing the stockholders, for their shares in any manufacturing corporation, therq shall first be deducted, from the value thereof, the value of the machinery and real estate, belonging to such corporation. H. S. c. 7, § 10. Manufacturing corporations are not taxable for their per- sonal property except for their machinery. Such property is to be assessed to the owners of shares in the stock of such corporations. 4 Met. 181, 186. Thirdly, All horses, except those mentioned in the eighth section, mules, neat cattle, sheep and swine, kept through- out the year, in towns other than where the owners reside, shall be assessed to the owners in the towns where they are kept. B. S. c. 7, § 10. 4* 42 Toww orricEK. Fourthly, All personal property belongiag to minors under guardiansHp, shall be assessed to the guardian in the town where the minor resides and has his home : and the personal property of aU other persons under guardian- ship, shall be assessed to the guardian, in the town where the ward is an inhabitant. lb. St. 1855, c. 106. Fifthly, All personal property, held in trust by any ex- ecutor, administrator, or trustee, the income of which is to be paid to any married woman or other person, shall be as- sessed to the husband of such married woman, or to such other person, respectively, in the town of which" he is an inhabitant ; but if such married woman, or other person, reside out of the State, the same shall be assessed to said executor, administrator or trustee, in the town where he resides. lb. Sixthly, Personal property, placed in the hands of any corporation or individual, as an accumulating fund, for the future benefit of heirs or other persons, shall be assessed to the person for whose benefit the same is accumulating, if within the State, otherwise to the person so placing it, or his executors or administrators, until a trustee shall be appointed to take charge of such property, or of the in- come thereof. lb. Seventhly, , The personal estate of deceased persons, which shall be in the hands of their executors or adminis- trators and not distributed, shall be abfc-;r--;'l to the execu- tors and administrators, in the town wx-eii ie deceased person last dwelt, until they shall give notice to the asses- sors, that the estate has been distributed and paid over to the parties interested therein, lb. 4 Cush. 12. Eighthly, All property held by any religious society, as a ministerial fund, shall be assessed to the treasurer of such society ; and if such property consists of real estate, it" shall be taxed in the town where such property lies ; and if it consists of personal property, it shall be taxed WHEBE AND TO WHOM PROPEKTT, &C. 43 in the to^vn, where such society usually told their meet- ings, lb. 13. When personal property is mortgaged or pledged, it shall for the purposes of taxation, be deemed the proper- ty of the party who has the possession. Ih. § 11. 14. Partners in mercantile or other business, whether residing in the same or different towns, may be jointly taxed, under their partnership name, in the town where their business is carried on, for all the personal property employed in such business ; and if they have their busi- ness in two or more towns, they shall be taxed in those several towns, for the proportions of property employed in such towns respectively : and, in case of being so jointly taxed, each partner shall be liable for the whole tax. lb. §13. 15. All taxes on real estate, shall be assessed in the town where the estate lies, to the person, who shall be either the owner or in possession thereof, on the first day of May. lb. § 7. Any person who shall have his residence in the city of Boston on the first day of January, shall, on the first day of May following, be taxed in that city, notwithstanding he may have removed therefrom before the first day of May ; and no person so taxed shall be liable to assessment for his personal property in any other city or town on the first of May in the same year. Stat 1852, c. 301. 16. In cases of mortgaged real estate, the mortgagor shall for the purpose of taxation be deemed the owner, until the mortgagee shall take possession, after which the mortgagee shall be deemed the owner, lb. 17. When a tenant, paying rent for real estate shall be taxed therefor, he may retain, out of his rent, the one half of the taxes paid by him ; and when a landlord is as- sessed for such real estate he may recover the one half of the taxes paid by him and his rent, in the same action against 44 TOWN OFFICEE. his tenant ; unless there be an agreement to the contrary . lb. § 8. ■ 18. Water power, for mill purposes, not used, being merely a capacity of land for a certain mode of improve- ment, cannot be taxed independently of the land. 22 Pick. 22. Where a dam extended across a river, the thread of which was the dividing line between the two towns, but the water power created thereby was applied exclusively to mills situated in one of the towns, — it was held, that the water power was not subject to taxation in the other town. lb. 19. The undivided real estate of any deceased person may be assessed to the heirs or devisees of such person, without designating any of the heirs or devisees by name, until they shall have given notice to the assessors of the division of the estate, and the names of the several heirs or devisees ; and each heir or devisee shall be liable for the whole of such tax, and shall have a right to recover of the other heirs or devisees their respective proportions thereof when paid by him. R. S. c. 7, § 12. 20. Whenever, at the time of assessment of any tax, the right or title to the real estate of any person deceased shall be doubtful or unascertained by reason of any litiga- tion concerning the will of such deceased person, or the validity thereof, the said real estate may be assessed in general terms to the estate of such person deceased ; and said tax shall constitute a lien upon the land so assessed, which lien may be enforced by the sale of the same, or any part thereof, in the manner now, by law, provided for enforcing such liens for taxes on real estate. Stat. 1847, c. 226. 21. All taxes assessed upon the personal estate of any deceased person, before the appointment of an administra- tor or executorthereof, if otherwise legal, shall be enforced MODE OF ASSESSING TAXES. 45 against said estate and the representative thereof, after an executor or administrator shall have been appointed, in the same manner as if an administrator or executor had been appointed when said assessment was made. Stat. 1855, c. 234. m. MODE OP ASSESSING TAXES. 1. l^rprrty llaMe to taxation Ehall be assejsi d at its lair dfh value. 2. Af-seEsors shall Bubscrilie itnd take oalh. 3. Tenalty for taking false rath. 4. AFFCSSfisto f.'i\o ndticc to bring in lists of polls said pror ov\y, 5. " may Verify lists by the oath of the paity. 6. " eha'l make a valuation. 7. " Ehull ri ceive lists us a true Tahiation, unless, 8 c. 8. At-sessors ehall make rn eBtimate, when liets are not bn'U^htin. 9. Such esiimate condusive, unless, &c. 10. AsFPFsors to a^pepF per'^ons liable at time of la^t annual asFeffwent, on application made seven days before any eleilion. 11. Plate, county and town taxes may be irc'ndfd in one aes* sf mi nt. 32. County ti.x, how granted and ap- porlicneiL - 13. Amount of each town how ascer- tained. 14. State treasurer to send tux war- rants to theiifl'P, whenever a State tax Is to be assesfcd. 15. Penalty if afse-EFors neglect to pbey tirasurer's \\arTRrt. 16. When rsssFsors neglect, 4c., com- missicnris mry api o'nt. 17. Liability of trwrs P-rnotehnoE- Ing astei-sore, afier ^van^ant ftxra treas- wer. 18. Eules of asFesfment. of Ftate lax aame as of town ard county taxes. 19. County and city taxes in Boston, how a'^sefscd. 20. One sixth sliall be nes'serd on pol'B, jjrovidtd, Ac, theresidue en prop- erly. 21. AsFrFsors may ar'd fire per cent. for convenience r-f afpnrtionni' nt. 22. Abp'feois to depoBiia crpy of the valuation in their < fl^ce. 2-^. Contents of the valuatirn :— 1. Irhabitarts' estates:— 2, non-resident owners' cBtates, 24. Assessors to prepare tax lists ftif collectoir — foim of tax lists. 2o. As-CFFors to commit lists to col- lectors with wurian,. 26. Warrant valid if signed by majoi^ ity. 27. Conti nts of warrant— no seal re- quisite. 28. If no collector, lists, wiih war. rant, to be given to shtriti" or bis dep- uty. 29. Constables tn be collectors if no coll* ctoi sale chosen. 3i'. When wari-ant is lost, new one may issue. 31. Mjijority pf assessr-rs may act, rs. Oniissi<-n to lax perscne or ( state, through accident, &.c., dues not make lax void, 33. Inclusion of persons not liable, does not make vo.d the tax as to oihers. S4. If an assessment be i lb gal, ihe tax may be rc-assi sscl. If oiice legally aesesi-id, the re-a^seseniont void. 35 Sejaiate real esUitcs belonging to ihe si-me owner, to be separately valued and assessed, Ac, 36. Tax void, if from the valuation of a preceding year, *c, 11. After assesspaent has been made 9,nd committed for collet ti< n, as6es'-0!» lannnt assess any person to mal-e him a voter except as" belt re ici ried in § 10. £8. Cashiers of bfmks, ; nd clerks of oth> r corjioratious. ta make returns to a-^sesfors of the nrmts of owni-rs of shares, with the number and v^lupof ihe ^harps. c9. Coiporations named in the act of 1843, eh. 98 to n-akp n turns to at-feBr sms of names nf st" ckholderp. numiiera of f^han B .belon^iing to each, capital ttock, &c. 40 Penalty for reghctirg to makd such returns or foi making i'alse reiumg, 41 Eei t aMntr clause. 42. Eetuinf ma^e by certain corpor-- atiot'sto as^estois tu state maiket yaj- ue of shares. 46 TOWN OFFICER. 43. Aqueduct corporatioas to make fiimilar return, Bimilar penalties. 44r. Amount of stock held by banks &c., as collateral security to be returned annually to assessors of towns &c., where the borrowers reside. 45. Penalty for shareholders' fraudu- lent transfer for purpose of avoiding taxation. 46. Sehoool district taxes. 1 . All property liable to taxation in this Commonwealth shall be assessed at its fair cash value. St. 1853, c. 319. 2. The assessors or other persons empowered to assess the taxes in any town or city in this Commonwealth, shall subscribe and take the following oath at the close of the valuation list : — " We, (the asssssors, or mayor and aldermen, or county commissioners, as the case may be,) of , do hereby solemnly swear that the foregoing list is a full and true list of the names of all persons known to us, who are liable to taxation in , (here insert the name of the town or city,) during the present year, and that the real and personal estate contained in said list, and assessed upon each individual in said list, is a full and accurate assessment upon all the property of each individual, liable to taxation, at its full and fair cash value, according to our best knowledge and belief." 3. If any person shall wilfully and designedly make and subscribe any false oath, mentioned in this act, he shall be liable to the pains and penalties of perjury, Stat. 1853, c. 319. 4. Before proceeding to make any assessment, the as- sessors shall give seasonable notice thereof, to the inhabi- tants of their respective towns, at any of the meetings, or by posting up in their towns, one or more notifications, in some public place or places, or by some other sufficient manner ; and such notice shall require the inhabitants to bring in to the assessoj-s, within a time therein specified, true lists of all their polls and estates, both real and per- sonal, not exempted from taxation. S. S. c. 7, § 19. 6. The assessors may, in all .cases, reqiure any person bringing in such a list, to make oath that the same is true ; MODE or ASSESSING TAXES. 47 which oath may be administered by either of the assessors. lb. § 20. 6. The assessors of each town shall, at the time appoint- ed, make a valuation of all the estates, real and personal, subject to taxation therein, lb. § 21. 7. The assessors shall receive, as the true valuation of the property of each individual, the list, if any, brought in by him according to the provisions of this chapter, unless he shall, on being thereto required by the assessors, refuse to make oath that the same is true. lb. § 22. The lists of estates, real and personal, which the inhab- itants of towns are required to present to assessors, before an assessment of taxes is made, is not intended to contain a statement of the estimated value of the property, and if the list contains a statement of the value, such statement is not by R. S. c. 7, § 22, conclusive on the assessors ; but they are to exercise their own judgment in estimating the value of the property. 12 Met. 211. 8. If any person shall not have brought in such list, the assessors shall ascertain, as nearly as possible, the particu- lars of his personal estate, and of the real estate in his , possession or occupation, as owner or otherwise, and make an estimate thereof, at its just value, according to their best information and belief, lb. § 23. 9. Such estimate shall be entered in the valuation, and shall be conclusive upon all persons, who shall not season- ably have brought in lists of their estates, unless they can show a reasonable excuse for the omission, lb. § 24. 10. When any person shall hereafter give notice in writing to the assessors of any city or to^rD. in this Com- monwealth, accompanied by satisfactory evidence that he was at the time of the last annual assessment of taxes in in said city or town, an inhabitant thereof, and liable to pay a poll tax, and shall furnish, under oath, true lists of his polls and estate, both real and personal, not exempted 48 TOWN OITICEE. from taxation, it shall bo the duty of said asssssors to as- sess such person for his poll and estate, if any estate he have, in the same manner they would have done if a list of his poll and estate had been duly given in to said as- sessors ; and the tax thus assessed against said person shall by said assessors be entered in the tax list of the collector of such city or town, and it shall be his duty to collect and pay over the same, at the time when and to the persons specified in the warrant of the assessors ; 'pro- vided, the application aforesaid shall be made at least seven days prior to the day of any election. Slat. 1852, c. 169. 1 1 . The assessors may include, in the same assessment, their state, county, and town taxes, or any two of them, whenever they shall think it convenient, lb. § 25. 12. The county tax is granted by the legislature and apportioned among the towns by the county commission- ers, according to the last state valuation. R. S. c. 14, § 33. 13. The amount of the county tax to be assessed in each town, will be ascertained from the warrant of the county treasurer. Yet if the tax be duly granted and apportioned, the as- sessment of it would be valid, although made without any warrant from the county treasurer. 20 Pick. 4, 18. So with a state tax without warrant from state Treasur- er, lo. 14. Whenever a state tax shall be required to be as- sessed, the treasurer shall send his warrants, for the assess- ing thereof, to the sheriffs of the several counties, who- shall immediately transmit the same to the assessors, to whom they are directed. R. iS. & 7, § 14. 15. If any assessors shall neglect to obey the warrants, received by them from the treasury of the Commonwealth, for the assessing of any tax upon the inhabitants or estates of their town, every one so neglecting, shall forfeit a sum not exceeding two hundred dollars. lb. § 17. MODE or ASSESSING TAXES. 49 16. When the assessors of any town shall neglect to as- sess any tax, as mentioned in the preceding section, the commissioners in the respective counties, shall forthwith appoint other suitahle persons, to assess such tax, accord- ing to the warrant of the treasurer ; and the persons so appointed, shall take the same oath, and perform the same duties, and he liahle to the same penalties, as are provided in the case of assessors of towns. Ih. § 18. 17. If any town shall, for five months after receiving a warrant from the treasurer of the Commonwealth, for as- sessing a state tax, or the warrant, order, or notice from lawful authority, for the apportionment of any county tax, neglect to choose assessors, and to cause the assessment thereof to be certified, as the law requires, the town so neglecting shall be liable to an action of debt, for the re- covery of the amount of such tax, at the suit of the treas- urer of the state, or of the county respectively. Ih. c. 8, §87. 18. State taxes are to be assessed in the same manner as county and town taxes, with the addition of such fur- ther rules as may be prescribed in the acts laying such taxes. Ih. c. 7, § 16. 19. In the city of Boston, all taxes, assessed for city or county purposes, may be assessed separately, as county taxes, and as city taxes, or under the denomination of city taxes only, as the city council shall from time to time di- rect. Ih. § 26. 20. The assessors shall assess upon the polls, as nearly as the same can be conveniently done, one sixth part of the whole sum. to be raised ; provided the whole poU tax, assessed in any one year, upon any individual, for town and county purposes, except highway taxes, shall not ex- ceed one dollar and fifty cents ; and the residue of said whole sum to be raised shall be apportioned upon proper- ty. Ih. § 27. 5 50 TOWN OFFICES. 21. The assessors may add, to the amount of any tax to be assessed, such a sum, not exceeding five per cent, of the same, as any jfractional divisions of the said amount may render convenient, in the apportionment thereof. Ih. §28. The provision of the above section is not interfered with, by the act of 1852, c. 169, § 2. 22. The assessors shall make a list of the valuation and the assessment thereon, and shall, before the taxes assessed are committed for collection, deposit the same, or an attested copy thereof, in their office, or, if there be no office, then with thsir chairman, for public inspection, lb. § 29. 23. The first part of said list shall exhibit the valuation and assessment of the polls and estates of the inhabitants- assessed ; and it shall contain, in separate columns, the following particulars, to wit : The names of the inhabitants assessed ; and opposite to their names. The number of proUs. The amount of their poll tax. The description of their real estate. The true value of their real estate. The reduced value of their real estate. The tax assessed on such real estate. The description of their personal property. The true value of their personal property. The reduced value of their personal property. The tax on their personal property. The sum total of each person's tax. The second part of said list shall exhibit; the valuation and assessment of the estates of non-resident owners ; and it shall contain, in sepEgrate columns, the following partic- ulars, to wit : The names of the non-resident owners of the property assessed, or such description of them as can be given. MODE OF ASSESSING TAXES. 51 Their places of abode, if known. The description of their estate. The true value of such estate. The reduced value of such estate. The tax thereon. lb. § 30. 24. The assessors shall prepare a tax list to be commit- ted to the collectors. The list shall be in substance as follows 4 Names. No. of Polls. Poll Tax. Tax -on Estate. Tax OB Personal Property. Total Time ■when pd. NON^SEBIDENTB. Names. Places of abode, if known. Tax. Ih. § 31. 25. The assessors shall, within a reasonable time, com- smit the said tax list, with their warrant, under their hands, ito the collector for collection. 75. § 32. Tax list must accompany the warrant, though it need saot be actually annexed. 13 Met. 93. 26. The warrant, if signed by a majority only of the assessors, is valid. 19 Pich. 436, 442. 27. The warrant of the assessors shall specify the duties of the collector, as prescribed by law, in the coUeetion of taxes, and the times when, and the persons to whom, the same shall be paid in by the collector, and it shall be ■substantially in the form heretofore used, except that it ■shall not be required to be under seal. R. S. c. § 33. 28. If there be no collector, the assessors shall commit 52 TOWN OFFICBB. the tax lists, with their warrant, in the form prescribed in the preceding section, to the sheriff or his deputy, whose duty it shall be to collect such taxes. lb. § 34. 29. Constables are to be collectors of taxes, when either the town does not choose collectors, or those chosen do not serve. It is therefore only when there shall be no. nonstable or collectors, that tax lists are to be committed fey the assessors to the sheriff of the county or his deputy. B. S. c. 16, § 79. When the town treasurer is appointed collector of taxes he may appoint deputies with the powers of collectors, or he may issue a warrant to the sheriff or his deputy, or any constable of the town, directing them to distrain the prop- erty or take the body of any person who may be delin- quent in the payment of taxes, and proceed in like man- ner as collectors are required to do. £. S. c. 15, § 60, 61. See also title Collectors. 30. When any warrant, issued for the collection of taxes, by the assessors of any town or parish, shall be lost or destroyed, the assessors of the same place may issue a new warrant therefor, which shall have the same force and effect as the original warrant. Art. of Amendment, § 51. 31. If one of three assessors, after notice, refuse to at- tend and act in assessing a tax, the other two may proceed without him. E. S. c. 2, § B. 21 Piek. 82. 19 Pick. 442. 32. The omission to tax any person, or any polls or es- tates, through accident, error of judgment or mistake of law, does not render the tax void, or invalidate it in regard to other persons. 5 Mass. 547. 5 Pick. 498. 21 Pick. 81, 82. lb. 97. 4 Met. 699. 33. If the assessors include in the assessment, persons not liable to be taxed, the tax may be enforced against those rightfully included. 5 Pick, 498, MODE OF ASSESSING TAXES- 53 34. If tte assessment of a tax be illegal and void, it may be re-assessed, but if it be once legally assessed, and a warrant issued for its collection, a re-assessment ■will be illegal and void. 15 Mass. 144. 5 Pick. 490. 7 FiclL 25. 35. Where separate and distinct real estates belong to ±be same owner, they are to be considered as distinct sub- jects of taxation, and must be sep3,rately valued and as- sessed ; and each, estaie is subject to a lien for the payment of that portion only of the owner's tax, which shall be as- sessed on such particular estate. 13 Pick. 492. One who is liable to be taxed in a city or town for real and personal property, cannot maintain assumpsit against the city or town, to recover back any part of a tax as- sessed upon and paid by him on the ground that the asses- sors in their valuation list, assessed certain lots of land separately, which should have been assessed together, and assessed other lots as one estate* which should have been assessed separately. 8 Oush. 55. 36. A tax would be void, if made from the valuation and invoice of a preceding year. Or if the giants for two successive years are brought into one tax, or if two successive taxes are founded upon one valuation. lb. I Pick. 140. 37. After any general assessment of a tax has been made by the assessors of a town, and committed to the proper officer for collection, and before another tax is committed to the assessors to assess, they have no author- ity to assess a poll or other tax on any person for the pur- pose of enabling him to vote at an election ; (except as before provided in section 10,) nor is any person, on the payment of a tax so assessed upon, qualified to vote, ac- cording to the third article of amendment of the constitu- tion. 18 Pick. 575. 38. For the purpose of taxation, it shall be the duty of 5* 54 TOWN OPFICEK. the cashiers of the several banks, the clerks of the several railroad corporations, and the clerks of all insurance com- panies (except mutual insurance companies,) and the clerks of manufacturing, bridge, turnpike, and canal corporations, in this Commonwealth, annually, between the first and tenth day of May, to make returns in person or by mail, to the assessors of every city or town in this Common- wealth, in which any shareholder in such corporation may reside, in manner following, viz : The return shall state the name of each owner residing in such town, with the number of shares belonging to each, on the first day of May, of that year, and the par value of such shares. Stat. 1843, c. 98, § 1. Every clerk of any manufacturing corporation, in the return required to be made by him, shall state the whole amount of the capital stock of such corporation, and the amount of real estate and machinery which was assessed to the said corporation in the last assessment of the city or town where such corporation is situated. Stat. 1845, e. 190. 39. It shaU be the duty of all the corporations named in the first section . of the ninety-eighth chapter of the laws of the year eighteen hundred and forty-three, an- nually, between the first and tenth day of May, to make .return by mail, or otherwise, to the assessors of every city or town in this Commonwealth, in which any shareholder in such corporation may reside, the name of each owner residing m such city or town, with the number of shares belonging to such stockholder, on the first day of May of that year, and the par value of such shares, and shall also state the whole amount of the capital stock of such cor- poration, and the amount of real estate and machinery which was last assessed to said corporation, in the city or town where the place of business of said corporation is situated. Stat. 1850, c. 308. Stat. 1855, c. 466. MODE OF ASSESSING TAXES. 56 40. If any one of said corporations shall refuse or neg- lect to make such, returns, or shall make any false returns, such corporation, so offending, shall forfeit, for every such offence, a sum not leas than fifty dollars, nor more than one thousand dollars, to the use of any city or town in which any such shareholder may reside, to be recovered by action of debt, in the name of the treasurer of said city or town, in any court of competent jurisdiction. § 2. 41 . All provisions of law, requiring such returns to he made by the clerks or other officers of said corporations, are hereby repealed. But nothing in this act contained shall affect any action now pending, or any right or cause of action, existing when this act shall take effect. Stat. 1850, c. 308, § 3. 42. In addition to the statement now required by the ninety-eighth chapter of the statutes, passed in the year eighteen hundred and forty-three, and the three hundred and eighth chapter of the statutes, passed in the year eighteen hundred and fifty, to be made by certain corpor- ations therein named, in their returns to the assessors of taxes, such return shall further contain a statement, ac- cording to the best knowledge and belief of the officer making them, of the cash market value of all shares named in such returns at the time of making the same. 1833, c. 33. 43. For the purposes of taxation, it shall be the duty of all aqueduct corporations in this Commonwealth, an- nually, between the first and tenth day of May, to make returns to the assessors of every city or town in the Com- monwealth, in which any shareholder in such corporation may reside, in the manner provided for the returns of banks and other corporations, by the first section of the ninety-eighth chapter of the statutes of the year one thou- sand eight hundred and forty- three, and the three hundred and eighth chapter of the statutes of the year one thon- 56 TOWN OrFICEE, sand eight hundied and fifty; which returns shall also contain a statement, according to the hest knowledge and belief of the officer making such return, of the cash market value of all shares named in such return ; and any aqueduct corporation which shall refuse or neglect to make such returns, or shall wilfully falsify the same, shall be liable to the same penalties as are provided in section second of chapter three hundred and eight of the statutes of the year one thousand eight hundred and fifty ; and any shareholder, who shall fraudulently transfer any share in any aqueduct corporation, for the purpose of avoiding taxation, shall be liable to the same penalties as are pro- vided by the third section of chapter ninety-eight of the statutes of the year one thousand eight hundred and forty- three. 1853, c. 78. 44. It shall be the duty of the cashiers of the several banks, the treasurers of the several savings institutions, and the clerks of all insurance companies, in this Common- wealth, annually, between the first and tenth day of May, to make returns, in person or by mail, to the assessors of every city and town in this Commonwealth, in which any borrower of money, on the collateral security hereinafter mentioned, shall -reside, in manner following, viz : The return shall state the number of shares of corporate stock, of any and all kinds, held by such corporation as collat- eral security for the debt or liability of each person residing in such city or town, on the first day of May, in that year, giving the name of such person, the number of shares, the denomination of such stock, and the par value there- of, if known to such officer making the return. Stat. 1849, c. 110. 45. If any shareholder shall fraudulently transfer any share in either of the corporations mentioned in the first section of this act for the purpose of avoiding taxation, he shall forfeit one half of the par value of the shares thus DISCOUNT ON, AND ABATEMENT OF TAXES. 57 transferred, to be recovered in any court of competent ju- risdiction, by the treasurer of the city or to^vn in which such shareholder may reside ; one half of the amount so recovered for the use of the town, and the other half for the use of the person or persons furnishing the necessary evidence in the case. lb. § 3. 46. For rules in relation to the assessment of the taxes of School Districts, in addition to those above stated, see " School Districts.''^ DISCOUNT ON, AND ABATEMENT OF TAXES. 1. Towns may allow discount. 2. Assessors to post up rates of dis- count, if allowed. 3. Seasonable abatements may be made by assessors, &c. 4. Costs which have arisen before abatement, to be paid. 5. If assessors refuse to abate taxes, the party may complain to the county commissioners, £c. 6. Complaint to Conunissioners the only remedy for a person liable to be taxe^, who is overrated. 7. Otherwise if not a resident. 8. Dedsion of Commissioners final. 9. No abatement allowed, unless a list has been brought in, Ac. 10. Exhibition of a plan or oral refer- ence to a former list insufficient. 1 1 . Ko abatement shall be made until a list has been filed with the assessors, subscribed and sworn to. 12. Penalty for taking false oath. 13. Abatements to be applied for within six months. 14. If tax has been paid, amount of abatements to be allowed out of the town treasury. 15. Tarty entitled to certificate of his abatement. 1 . Any town may, at their annual meeting, allow a dis^ count of such sums, as they may think expedient, to those persons who shall make voluntary payment of their taxes, within such periods of time, as the town shall prescribe for that purpose : and in such case the collectors shall make such discount accordingly. B. S, c, 7, § 35, 2. When a discount shall be allowed, as provided in the preceding section, the assessors shall, at the time of com- mitting their warrant to the collector, post up, in one or more public places within the town, notice of the rates of discount. lb. § 36. 3. Any person, aggrieved by the taxes assessed upon him, niay apply to the assessors for an abatement thereof ; and, if he shall make it appear to them, th^t he is taxed 58 TOWW OFFICBE. at more than Ms just proportion, they shall make a reason- able abatement to him ; and they may for this purpose ex- amine upon oath, (which may be administered by either of thera,) the person so applying, and any witnesses whom he or they may see fit. lb. § 37. 4. If any legal costs shall have accrued, before making any such abatement, as is herein provided for, the person applying for the abatement, shall, notwithstanding, pay such costs. Ih. § 36. 5. If the assessors shall refuse to make an abatement to any person, he may make complaint thereof to the county commissioners, and if upon the hearing of such complaint, it shall appear that the complainant is over-rated, the said commissioners shall make such, abatement of his taxes, as they shall deem reasonable ; provided, that the party aggrieved shall, in all cases, file his complaint with the clerk of the commissioners, within one month after the refusal of the assessors to allow an abatement. lb. § 39. 6. If a person be over-rated by the assessors of the town where he resides, and is liable to be taxed, whether the excess is caused by including in the valuation property of which he is not owner, or that for which he is not liable to be taxed, his only remedy is by application for abate- ment. 6 Pich. 98. 7 Cush. 273. 7. But if a person owning real estate in a town where he does not reside is assessed in such town for his poll and personal estate, as well as his real estate, he is not obliged, for redress, to appeal as for over-taxation, but, having paid the tax, may recover it back in assumpsit from the town. 12 Pick. 7. 8. The judgment of the county commissioners upon-a complaint for the abatement of a tax is a judicial act, upon a subject of which they have final jurisdiction, and in which the exercise of their discretion cannot be revised by any other tribunal. DISCOUNT ON, AND ABATEMENT OF TAXES. 59 If they err in matters of law, a writ of certiorari lies. 19 Pich. 298. 9. No person shall have any abatement made, by the commissioners, unless he shall have brought in a list of his estate to the assessors, or shall show good cause for not having so done, and unless he shall, if required by the assessors, have made oath to the truth of the same. R. S. c. 7, § 40. 10. Exhibition of a plan of real estate or oral reference to a former list is insufficient, nor is the fact that the as- sessors are satisfied without a list equivalent to the bring- ing in of one. 6 Cush. 477. 11. No abatement shall be made of the taxes assessed upon any individual, untU he shall have filed with the assessors a list subscribed by him of his estate, liable to taxation, and made oath that it is a full and accurate list of the same, according to his best knowledge and belief. Stat. 1853, c. 319, § 3. 12. If any person shall wilfully and designedly make and subscribe any false oath mentioned in this act, he shall be liable to the pains and penalties of perjury. Stat. 1853, c. 319, § 4. 13. No abatement shall be allowed to any person, un- less he shall have made application therefor, within six months after the date of his tax bill. lb. § 41. 14. Any person, who shall have an abatement made, shall, if his tax has been paid, be reimbursed out of the treasury of the town, to the amount of the abatement al- lowed, together with all charges, except the legal costs, provided for in the fourth section. lb. § 42. 15. Every person, whose tax shall be abated, shall be entitled to a certificate thereof Jfrom the assessors' or clerk of the commissioners, or other proper officer. lb. § 43. 60 TOWN OFIICEK. AUCTIONEERS. county real or personal estatpe on the premiBee. 11. Acts concerning auctioneers not to extend to hawkers and pedlers. 12. Tenants answera'bleiftheypermit unlicensed sales in their premises. 13. Sales by sherio; executors, &g. excepted. 14. Licenses to be in force one year only. 15. An auctioneer cannot delegate his power. 16. Duties on sales at auction abol- ished. 1. To be licensed by selectmen. 2. *' by commissioners, if se- lectmen refuse or neglect, &o. 3. To give bond to State Treasurer. 4. To keep an account of sales. 5. Penalty for selling without license. 6. May sell in any town within his county. 7. Penalty for receiving goods from minors and servants. 8. Penalty for selling their own goods by night. 9. Forfeiture of property offered for sale at auction, by person not licensed. 10. Auctioneer may sell out of his 1. The selectmen of any town may, by writing under their hands, license, for the term of one year, one or more suitable inhabitants of such town, to be auctioneers with- in the same ; and each person receiving such license shall pay to the selectmen, for their use, the sum of two dollars. The selectmen shall record every license, so granted, in a book so kept by them for that pui-pose. jff. S. c. 29, § 1 and 2. 2. If the selectmen shall unreasonably refuse or neglect, .after application made to them in writing, to license any person applying, such person, after giving fourteen days notice to them, and also giving them bonds to pay all costs in the case, may apply to the county commissioners of his county, who, on hearing the parties, may license the person so applying, if they shall judge it reasonable. lb. § 3. 3. Each auctioneer shall give 'a bond, in a reasonable penalty, with sufficient sureties, to the treasurer of the Commonwealth, with condition to pay all auction duties, required by law, to the treasurer of the Commonwealth, and also that he shall, in all things, well and truly con- form to the laws relating to auctions : which bonds shall be taken by the persons who granted the license, and be by them duly transmitted to the treasurer of the Common- AtrCTIONEEBS. 61 wealth, witli an indorsement of their approval thereon. Ih. § 6. 4. Every licensed auctioneer shall keep a fair and par- ticular account of all goods and chattels sold hy him, of the persons of whom the same were received, and of the names of the persons to whom the same shall have been sold. lb. § 5. 5. If any person, not licensed and qualified as an auc- tioneer, shall sell or attempt to sell any real or personal estate whatsoever, by way of public auction, he shall be deemed guilty of a misdemeanor, and shall be punished by a fine not exceeding five hundred dollars, for every ofience. lb. § 7. 6. An auctioneer duly licensed may sell in any town within his county. Stat. 1837, e. 233. 7. If any person, Kcensed as aforesaid, shall recEive for sale by auction, any goods from any minor or servant, knowing him to be such, or shall sell by auction any of his own goods before sunrise or after sunset, he shall forfeit to the use- of the town a sum not exceeding two hundred dollars, for each ofience. lb. § 4. 9. If any person, not being licensed as an auctioneer in any town, shall sell or ofier for sale, by auction, in such town, any goods or chattels, he shall forfeit the said goods and chattels to the use of such town ; and the same may be seized by the selectmen of such town and libelled, ac- cording to the provisions of the one hundred and eigh- teenth chapter of the Revised Statutes concerning the seiz- ing and libelling of forfeited goods. lb. § 9. 10. It shall be lawful for any person or corporation having real or personal estate in any city or town in this Commonwealth, to be sold by public auction, to employ, for the purpose of making such sale, any wictioneer duly licensed under the provisions of the twenty-ninth chapter of the Revised Statutes. And any ajictioneer so employed. 6 62 TOWN OFFICEK. is hereby authorized to sell such real or personal estate upon the premises where the same may be situated, al- though it may be without the limits of the county in which he resides, or has his license ; any thing in said twenty-ninth chapter to the contrary notwithstanding, -f. 1 1 . Nothing contained in this act, or in an act entitled, " an act concerning auctioneers," passed in the year one thousand eight hundred and thirty-seven, shall be con- ■ atrued as. authorizing, or in any way empowering, hawkers and pedlars, or other itinerant traders, who may now hold, ' or may hereafter hold, an auctioneer's license, to sell, or to expose for sale, by public auction, any goods, wares, or merchandice whatever, in any other city or town than in the one from whose authorities such license was obtained ; and there only in such place or places as shall be express- ly described or set forth in said li^nse. iSita*. 1852, c.1 15. 12. The tenants or occupants of any house or store, hav- ing the actual possession and control of the same, who shall knowingly permit any person to sell any real or per- soiial estate by public auction, in their said house or store, or in any apartment or yard appurtenant to the same, con- trary to the provisions of this chapter, shall forfeit to the use of the town, a sum not exceeding five hundred dollars. Ih. § 10. 13. Nothing in this chapter shall extend to sales made by sheriffs, deputy sheriffs, coroners, constables, collectors of taxes, executors, administrators, guardians, or any other person required by law to sell any real or personal estate by public auction. Ih. § 11. 14. No license granted as aforesaid shall remain in force for more than one year from the date thereof. Ih. §12. 15. An auctioneer cannot delegate his power to sell by auction, but he may employ another person to use the hammer, and make the outcry, under his'immediate..direc- COILECTOHS OF TAXES. 63 tion and supervision; nor will his occasional absence dur- ing the sale, subject his servant to the penalties of the statute against selling by auction without a license. 1 9 Pick. 482. 1 6. Hereafter no tax or duty shall be imposed on any sale by auction. Stat. 1852, c. 139. COLLECTORS OF TAXES. 1. How choBen. 2. To be Bwom. 3. Form of oath. 4. To give bonde to the town. 5. Constable to be collectors, when, Soe. 6. Town treasurer may be collector and may appoint deputies. 7. His power and duty as collector. 8. Towns may authorize collectors to make use of the powers conferred on town treasurers when acting as collec- tors. 9. Collectors to keep list of persons paying taxes and to give receipts. 10. To return lists to selectmen twice a year. 11. "What delivery of return sufficient 12. Penalty for neglect and false re- turn. 13. Compensation and fees of oollec- tora. 14. Temporary collectors may be ap- pointed by selectmen. ' ' 15. And by assessors to complete col- lections. I 16. Putting up collection of taxes at auction. 1 . Collectors may be cliosen in sitcli a maimer as the ■. meeting shall determine. As however the treasiirer is. to be chosen hy ballot, whenever the town vote to unite the offices, treasurer and collector, they must elect by ballot. R. S, c. 15, § 33, 34, 60. 2. Collectors must be sworn to the faithful discharge of the duties of their office. Ih. § 33. 3. The following form of oath -will answer for this and all cases where officers are to be sworn only to the faithful discharge of the duties of their office- You, (name of person,) having been elected (name of office,) for the town of (name of town,) for the year ensu- ing, solemnly swear that you will faithfully discharge the duties of that office. So help you God. lb. 4. Every collector shall give bond to the town, in such sum as the selectmen shall require, and with sureties to 64 froWN oiTicBfi. their satisfaction, for the faithful discharge of the duties of his office. Ih. § 80. 5. In case the persons chosen by a town as collectors shall refuse to serve in that office, or if no choice shall be made of such officers, the constables of the town shall be collectors of taxes. lb. § 78. 6. The inhabitants of any town may, at any meeting, appoint their treasurer collector of taxes ; and he may then appoint, under him, such deputies as may be necessary, who shall give such bonds for the faithful discharge of their duty, as the selectmen shall think proper ; and the said collector and his deputies shall have the same powers, as are vested in collectors of taxes. Ih. § 60. 7. Any town treasurer, being appoicted collector, may issue a warrant to the sheriff of the county, or his deputy, or to any constable of the same town, directing them to distrain the property, or take the body of any person who may be delinquent in the payment of taxes, and to proceed therein, in like manner, as collectors are required to do, in the like cases. Ih. § 61. 8. Any town in this Commonwealth may, at any meet- ing duly notified for that purpose, by their vote, authorize and empower the collector or collectors of taxes to use any and all means of collecting the taxes committed to him or them to collect, which may now be lawfully used by town treasurers when acting as collectors. Stat. 1850, c. 57. 9. The collectors of state and county taxes, in eacli -town, shall keep an accurate account of the names of all persons from whom they shall have received payment of any state or county tax, and of the time of such payment ; and, upon request, shall deliver, to the person making the payment, a receipt, specifying his name and the time of such payment ; and such receipt shall be admitted as pre- sumptive evidence thereof. R. S. c. 3, § 2. 10. The said collectors, whether the time for which they COI-LECTOES OF TAXES. 65 were respectively ctosen shall have expired or uot, shall, twice in each year, namely, once in the month of Februa- ry, not more than twenty days nor less than fifteen days before the first Monday in March, and once in the month of October, not more than twenty days nor less than fif- teen days before the second Monday in November, return to the selectmen of their respective towns, an accurate list of all persons . from whom they shall have received payment of any state or county tax, subsequently to the time appointed for making their last preceding return. iS. §3- 1 1 . Any collector who shall neglect to make such re- turn, as is required in the preceding section, shall forfeit the sum of one hundred dollars, for every such neglect ; and any collector, who shall make a false return, in re- spect to any part of such list, shall forfeit the sum of twenty dollars for every name, in respect to wMeb he shall have made a felse return. lb. § 4. 12. It is not necessary that the list should be delivered to the selectmen at a meeting of the board ; a delivery to one of them is sufficient. The list is to remain with the selectmen for their use, and must not be taken away again by the collector. 7 Pick. 286. 13. Every collector shall be paid such compensation for his services as his town shall determine. R. S. c. 8, § 47. For fees of collectors for the execution of any process, see title " Collection of Taxes." 14. Whenever the office of town treasurer, or the office of collector of taxes, in any town in this Commonwealth, shall be vacant by reason of death, removal, sickness, or other cause, or whenever such treasurer or collector shall be prevented from perfijrming the duties of his office, the selectmen of such town may appoLat in writing under 6* 66 TOWN OPFICEE. their hands, a town treasurer or collector of taxes pro tem- pore, who shall hold his office until another is chosen in his place, and shall be sworn and give bonds for the faith- ful discharge of the duties of his offi,ce, in the same man- ner as town treasurers and collectors of taxes are now re- quired to do. Stat. 1838, c. 43. 15. Assessors have also the power in certain cases to appoint persons to complete the collection of any tax ; but not to fill a vacancy in the office of collector of taxes. See title Collection of taxes, 16. As some of our towns still continue the custom of putting up the office of collector of taxes at auction, it may be well to remind them that the Supreme Court, in a late case, intimated the opinion that if the terms of the vendue are such that the highest bidder should at all events obtain the appointment, without regard to his fitness or qualifications, it would be difficult to sustain the election. 20 Pick, 418, 429. COLLECTION OF TAXES. 1. CoUectorB to collect taxes accord- ing to warrant. 2. Warrant when BUfHcient. '3. Collectors to complete collections. .4. Demand to be made before dis- training. 5. I'arty claiming abatement must produce certificate of asBCBBors — Liable to pay fees and costs. 6. Errors in names not to defeat col- lection of taxes. 7. Collectors may demand aid : pen- alty for neglecting. 8. Distress and sale to pay taxes; except of certain goods. 9. Distress how long kept ; how ad- vertised and sold. 10. Sale may be adjourned once. 11. Surplus to be returned to owner on demand. 12. Sale of distress after the limited time renders the collector a trespasser. IS. Distress cannot be made after the decease of the person taxed. 14. If the collector become himself the purchager, the sale is voidable. 15. After neglect to pay for fourteen d^s, party may be imprisoned. 16. In cases of doubtful credit, taxes may be collected forthwith. 17. Taxes assessed to insolvent debt- ors not recoverable as preferred claims. 18. Copy of warrant. &c,, to be left with the jailor. 19. Persons, imprisoned for non-i>ay- ment of taxes, how discharged. 20. Collectors and assessors to be notified ; and they may appear as the creditors. 21. Collectors, when liable to pay the taxes and prison charges. 22. When persona remove from col- lector's precinct, without paying, collec- tor may himself forthwith collect. 23. Or may Issue his warrant to sher- iff. (&c., for that purpose, 24. Where persons remove, die or marry, without paying, collector may maintain action in his own name. 25. What constitutes sufficient re- moval. COIilECTION OP TAXES. 67 26. JPor tax npon the estate of persons deceased, collector may be executor, &c 27. Tazea assessed upon personal es- tate of deceased person, before appoint- ment of executor may be enforced ;^ter one is appointed. 28. Action for taxes maintainable only when given by statute. 29i la such actions, no interest can be recovered, 30. Shares of stockholders in corpor- ations, may be sold for neglect or refu- sal to pay taxes. 31. Seizure of shares,— how made. 32. Recording officer of company to make known shares held by person taxed. 33. Sale of shares seized, — how made. 34. Recording officer to give new cer- tificates to purchaser. 35. Case of persons who are not own- ers of the real estate taxed to them. 36. Demand where necessary. 37. Taxes to be a lien on real estate for two years and until alienation. 38. Sale of real estate for taxes, not to affect rights of persons not taxable for, mortgagee liable for taxes, &c 39. Supreme court to have equity ju- lisdiction. 40. Separate real estates belonging to the same owner, how to be consid- ered. 41. Tax assessed to non-resident owner of real estate, how may be col- lected. 42. What demand sufficient. 43. "What demand necessary, where non-resident has an attorney in town. 44. What necessary where tax is to be collected by distraining and selling goods. 45. Where demand is made on attor- ney, collector to wait two months. 46. Resident mortgagee of real estate, when entitled to have payment of tax demanded of him, before sale for non- payment. 47. Non-resident mortgagee, when entitled to have payment demanded of him. 48. Affidavit ofcollector, Ac, evidence of demand on attorney. 49. Affidavit of posting notifications, to be evidence, if recorded, &c. 50. Sales of real estate, how adver- tised by collectors. 51. Contents of advertisement. 52. Where name of the town has been changed. 53. Notices to be also posted up In some public place in the precinct of^the collector and on the premises. 54. Sale by auciion of su^cient, Ac. 55. Sale, how made where the real estate cannot be divided without inj ory. 56. Collector may adjourn the sale, but not more than seven days in the whole. 57. Deed to be given to the purcha- ser. — Contents of deed. 58. Owner may redeem within two years. 59. How estate sold may be redeemed when purchaser cannot be found in the town, &c., of which he is demanded as resident. 60. Real estate, sold for taxes may be redeemed after the expiration of two years, in certain cases. 61. Any person having a lawful title to such real estate, may redeem at any time within two years after actual no- tice of the sale. 62. Duty of town treasurer in sucb case. 63. What to be deemed evidence that purchaser cannot be found. 64. Where no collector is chosen, the sheriff or his deputy, shall collect taxes. 65. Their duty in such case. 66. Fees for collecting. 67. Liabilities of towns where col- lectors nrglect to pay over. 68. LiabUity of collectors for such neglect. 69. If collector die before cpmpleting his collections, assessors may appoint one. 70. Collectors may be removed in certain cases, by assessors. 71. On the death, or removal of a col- lector, his lists to be delivered over to the assessors. 72. Deficiency in state or county tax, how supplied. 73. Collectors to be credited witii abatements, &c. 74. Collector to exhibit accounts. 75. Penalty for not exhibiting. 76. Liability of collectors. 77. Not liable for mis-doings of as- sessors. 78. Not responsible for regularity of the town meeting, &c. 79. Fees; for levying a tax by dis- tress ; for selling real estate, when de- linquent is committed to jail. 1. Every collector of taxes, and every constable, receiv- ing any tax list and warrant from the assessors, shall pro- 68 TOWN OFFICEB. ceed to collect the taxes therein mentioned, according to the warrant, H. S. c. 8, % 1. 2. A warrant to the collector of taxes, signed hy a ma- jority of the assessors, is valid. 19 Pich. 436. Where the only defect in a warrant, issued by asses- sors, to a collector of taxes, was an omission to direct him to sell distrained goods within seven days, it was held he was justified by such warrant in distraining goods and selling them in seven days, according to law. 1 Met. 328. 3. Every collector shall complete his collection of the taxes committed to him, notwithstanding his term of of- fice shall have expired, before completing the same ; ex- cept in the cases where he shall be removed from ofiice by the assessors. S. S. c 8,. § 2. 4. The collector shall, before distraining the goods of any person for his tax, demand payment thereof, from such person, if to be found wi,thin his precinct : which demand shall be made, either of the party personally, or at the place of his usual abode. Jb. § 3. 5. If any person shall claim the benefit of an abate- ment, he shall exhibit to the collector demanding his taxes, a certificate of such abatement, from the assessors or other proper officer ; and he shall be liable to pay all costs and officers' fees, incurred before he shall have exhibited such certificate. lb. § 4. 6. If, in the assessors' list, or in their warrant and list committed to the collectors, there shall be an error in the name of any person taxed, the tax assessed to him may, notwithstanding such error, be collected of the person, in- tended to be taxed, provided he is taxable, and can be identified by the assessors. lb. § 5. See 6 Met. 470. 7. Any collector, when resisted or impeded in the exer- cise of his office, may require any suitable person to aid him therein ; and if such person shall refuse to render ,-8uch aid, he shall forfeit to the use of the town where the COLIECTION OP TAXES. C9 offence is committed, a sum not exceeding ten dollars. Ih. § 6. 8. If any person shall refuse or neglect to pay his tax, the collector shall levy the same by distress and sale of his goods, excepting the goods following, namely : The tools or implements necessary for his trade or occu- pation : beasts of the plough necessary for the cultivation of his improved lands ; military arms, utensils for house keeping necessary for upholding Kfe, and bedding and ap- parel necessary for himself and family. Ih. § 7. 9. The collector shall keep the goods distrained, at the expense of the owner for the space of four days, at the least, and shall, within seven days after the seizure, sell the same by public auction, for the payment of the tax and the charges of keeping and of the sale, having given notice of such sale, by posting up a notification thereof, in some public place in the town, forty-eight hours at least before the sale. lb. § 8. A collector of taxes who distrains goods may post a notification of the sale thereof before the expiration of four days after the seizure. 13 Met. 94. 10. The collector may, if he see fit, once adjoiim such sale, for a time not exceeding three days ; in which case, he shall forthwith give notice of such adjournment, by posting up a notification thereof, at the place of sale, when he makes such adjournment. Ih, § 9. 11. If the distress shall be sold for more than the tax, and the charges of keeping the distress and making the sale, the collector shall return the surplus, to the owner, upon demand, with an account in writing, of the sale and charges. Ih. § 10, 12. If a distress for non-payment of taxes, be sold by the collector, after the expiration of the time limited fOr making such sale, the delay renders the collector a tres- passer ah initio (froni the beginning) and an action of tro- 70 TOWN OFFICEE. Ter will lie against Mm in favor of tlie owner of the goods sold, althougli no demand thereof be made before the com- mencement of the action, the tortious taking of personal property being a conversion. 14 Pick. 356. 13. A distress for the non-payment of a tax cannot be made after the death of the person on whom the tax is as- sessed. 9 Met. 504. 14. Where at a sale of goods for the non-payment of taxes, the collector of taxes himself becomes the purchaser, it was held that such sale was voidable, at the election of the owner of the goods. 14 Pick. 356. 16. If any person shall refuse or neglect, for fourteen days after demand thereof be made, to pay his tax, and the collector cannot find sufficient goods, upon which it may be levied, he may take the body of such person and commit h^m to prison, there to remain, until he shall pay the tax and charges of the commitment and imprisonment, or shall be discharged by order of law. JR. S. c. 8, ^ 11. 16. When the credit of any person taxed shall be con- sidered doubtful by the assessors, they may order the col- lector forthwith to compel payment by distress or impris- onment, whether the tax be made payable immediately, or at a future day, or by instalments, or otherwise. lb. § 12. 17. Taxes assessed upon the estates of insolvent debt- ors, and unpaid at the time of the assignment, other than taxes assessed by the Commonwealth, shall not be recov- ered as preferred claims. Stat. 1850, c. 218. 18. When the collector shall commit any' person to prison he shall give the keeper of the prison an attested copy of the warrant with a certificate thereon, under the hand of the collector, setting forth the sum, which such person is to pay as his tax, with the cost of taking and committing him, and, that upon his having neglected pay- ment fpr fourteen days, or otherwise, as the case may be, and for want of goods whereof to make distress, he has taken his body. lb. § 13, COIIECTION OF TAXES. 71 19. When any person, who is committed to prison for the non-payment of taxes, shall be unable to pay the same with the incidental charges, he shall be entitled to his dis- charge, in like manner as is provided for the discharge of prisoners conmiitted on execution for debt in the ninety- eighth chapter of the Kevised Statutes. Act of Amend- ment, § 1. 20. The notice required in such case to be given to the creditor, shall be given to the assessors of the place where the tax was assessed, and to the collector by whom the party was committed ; and the said assessors and collector, or any of them, may appear as creditors to oppose the dis- charge of the prisoner, and may do all things in relation to the proceedings, which a creditor might do by force of the said ninety-eighth chapter. lb. § 1. « 21. When any person, committed for the non-payment of taxes, shall be so discharged, the collector shall be lia- ble to pay the tax, with the charges of imprisonment, un- less he shall have arrested and committed the party within one year after the tax was committed to him to collect, or unless he shall be exonerated therefrom by the town or parish to which the tax is due. lb. § 1 . He will not, however, be liable for his support while in jail. 3 Met. 152. 22. When any person shall, after the assessment of a tax upon him, remove out,of the precinct of the collector without paying his tax, the collectot may demand payment thereof, wherever such person may be found ; and in de- fault of payment, the collector may forthwith proceed to collect the tax by making a distress, or by commitment of such person to the prison of the county where he may be found. S. S. c. 8, § 14. 23. Or he may issue his warrant to the sheriff of the county or his deputy, or to any constable of the town where such person may be found, directing them to dia- 72 TOWN OPFICBB. train the property or take th.e body, and to proceed therein in like manner as collectors are required to do in the like cases. Stat. 1842, c. 34. 24. When any person, who is taxed, shall remove as aforesaid, or shall die, or being an unmarried woman, shall be married, before payment of the tax, the collector may, in his own name, maintain an action of debt or assumpsit) in like manner as for his own debt, and he may, for that purpose, in like manner, have a process of foreign attach- ment against any trusteee of such person, as provided in the one hundred and ninth chapter of the Revised Stat- utes. E. S. c. 8, § 15. 25. Leaving the precinct of the collector, with the in- tention of returning at the expiration of six months, was held to be such a removal while thus absent, as would au- thorize the collector to maintain an action in his own name to recover the payment of a tax duly assessed, before such change of residence. 23 Pick. 235, 240. 26. A collector of taxes may sue in his own name, for any tax lawfully assessed upon the personal estate of any deceased person, and maintain his action against the execu- tor, or general or special administrator. Stat. 1848, c. 235. 27. All taxes assessed upon the personal estate of any deceased person, before the appointment of an administra- tor or executor thereof, if otherwise legal, shall be enforced against said estate and the representative thereof, after an executor or administrator shall have been appointed, in the same manner as if an administrator or executor had been appointed when said assessment was made. Stat. 1852, c. 234. 28. No action can be maintained to compel the pay- ment of taxes, except in the cases in which an action is expressly given by the Statutes. 6 Mass. 44. 8 Met. 393. COLLECTION OF TAXES. 73 29. In such an action the collector will not be entitled to recover any interest on the taxes committed to him, 9 Mass. 324. 30. Any share or interest of any stockholder in any corporation that is or may be incorporated under the au- thority of this Commonwealth, may be seized and sold for the neglect or refusal of such stockholder to pay his taxes. Stat. 1846, c. 195, § 1. 31. Such seizure may be made by leaving with the clerk, treasurer, or cashier of the company, or if there be no such officer, with any officer or person who has at' the time the custody of the books and papers of the corpora- tion, an attested copy of the warrant, with a certificate thereon, under the hand of the collector, setting forth the sum which such stockholder is to pay as his tax, and that, upon his neglect or refusal to pay said tax, he has seized •said share or interest. Stat. 1846, c. 195, § 2. iB. S. c. 90, § 36. 32. The officer of the company who is appointed to keep a record or account of the shares or interests of the stockholders therein, shall, upon the exhibiting to him of said vs^arrant, be bound to give a certificate of the number of shares or amount of the interest held by the person taxed. Stat. 1846, c. 195, § 4. E. S. c 97, § 39. lb. c. 90, § 38. 33. The sale of such share or interest shall be made in the manner and subject to the rules prescribed by law for the sale of goods by collectors of taxes in like cases. Stat. 1846, c. 195, § 3. 34. An attested copy of the warrant and of the return thereon, shall, within fourteen days after the sale, be left with the officer of the company, whose duty it may be to record tranfers of shares ; and the purchaser shall thereup- on be entitled to a certificate or certificates of the shares bought by him, upon paying the fees therefor, and for re- 7 74 TOWN OFPICEK. cording tte transfer. Stat. 1846, c. 195, § 4. R. S. e. 97, § 40. 35. When any person stall be taxed for real estate in Ws occupation, but of wHch be is not tbe owner, tbe col- lector, after demand of payment, may levy tbe tax by dis- tress and sale of any cattle, steep, torses, swine, or otter stock, or any produce of said estate, belonging to tte own- er ttereof, wtict, within nine montts after suet assessment is committed to him, stall be found upon tte premises, in tte same manner, as if suet stock or produce were tte property of tte person so taxed. iZ. aS. c. 8, § 16. 36. No demand need be made as provided in tte preced- ing section, if tte person, on whom tte tax is assessed, stall tave resided wittin tte precinct of tte collector, at the time of tte assessment, and stall subsequently re- move therefrom, and remain absent three montts. lb. § 1 7. 37. Taxes assessed on real estate shall constitute a lien thereon, for two years after ttey are committed to the col- lector ; and may, together with all incidental costs and ex- penses, be levied by sale thereof, if the tax is not paid within fourteen days, after a demand of payment made either upon the person taxed, or upon any person occu- pying the estate ; such sale to be conducted in the manner hereinafter stated, for tte sale of lands of non-resident pro- prietors, for non-payment of taxes ; but netting in ttis section stall restrain tte collector from selling any real es- tate for taxes after ,tte said term of two years stall tave elapsed, unless suet estate staU tave been alienated in the mean time. lb. § 18. 38. No sale of any real estate, for taxes, shall affec:> tte rigtts of any person not taxable tterefor, provided that any mortgagee, upon taking possession of said real estate by force of his mortgage, stall be liable to pay all taxes tten due, and tte costs and expenses of any sale that stall have taken place. St. 1849, e. 213, § 1. COLIiECTION 01" TAXES. 75 39. In all cases of sales of real estate for tte pay- ment of taxes, the supreme judicial court shall have full equity powers. Ih. § 2. Stat. 1849, c. 213. 40. Where separate and distinct real estates belong to the same owner, they are to be considered as distiact sub- jects of taxation, and must be separately valued and as- sessed; and each estate is subject to a lien for the pay- ment of that portion only of the owner's tax which shall be assessed on such particular estate. 1 3 Pick. 492. 41. When any lax on real estate shall be assessed to any non-resident owner thereof, the collector may, at his election, collect such tax of the said owner, in like manner as in the case of a resident owner, or he may collect the same by the sale of such real estate, in the manner here- inafter stated. R. S. c. 8, § 19. 42. A demand, by a collector, of payment of a tax as- sessed on a non-resident, who has no agent or attorney within the Commonwealth, is sufficient to justify a subse- quent seizure and sale of his goods, if such demand be made at his last and usual place of abode, in the town where he is taxed. 1 Met. 328. 43. If any non-resident owner of real estate, shall, pre- vious to the assessment of any tax, have given a written authority to some inhabitant of such town, as his attorney, to pay the taxes imposed on such estate, and su<;h author- ity shall have been filed with,- or recorded by, the clerk of such town, the demand of- payment shall be made upon such attorney ; otherwise no demand need be made of pay- ment of taxes assessed on the real estate of non-resident owners. B. S. c. 8, § 20. 44. If he wish to collect the tax by distEainihg and sel- ling goods, and not by a sale of the real estate, a demand would seem to be hecessary. See 1 Met, 328, § 30 of the title. 76 lOWN OFFICER. ■ 45. In case of a demand, made upon the attorney of a non-resident owner, as is required in the thirty-nintli sec- tion, the collector shall not proceed to advertise the sale of the lands, until after two months from the time of such demand. £. S. c. 8, § 21. 46. If any mortgagee of real estate, situated in the city or town of which he is resident, shall, previous to the as- sessment of any tax, have given a written notice to the clerk of such city or town, that he holds a mortgage on such real estate, which notice shall contain a description of the estate which is held hy him, as mortgagee, it shall be the duty of the collector, on all sales hereafter made, before proceeding to sell the same for non-payment of taxes assessed thereon, to demand payment of said taxes, of such mortgagee in the manner provided in the thirty-fifth sec- tion of this title. Slat. 1848, c. 166, § 1. 47. If any non-resident mortgagee of real estate shall appoint an attorney, with the authority, and for the pur- poses, named in the thirty-ninth section of this title, in re- gard to non-resident owners, and such authority shall have been filed with, or recorded by, the clerk, as provided in said section, demand of payment shall be made of such attorney before said estate shall be sold for non-payment of taxes. lb. § 2. 48. The aifidavit of any disinterested person, or of the collector, who shall make such sale as provided, being taken before a justice of the peace, and recorded by the clerk of the town where the land lies, before any sale is made, and stating the demand of payment of tax, the per- son of whom, and the time and manner in which it was made, shall be admitted as competent evidence of the de- mand. H. S. c. 8, § 22. 49. The affidavit of any disinterested person, taken be- fore a justice of the peace, of the posting up of notifica- tions of the sale of land, by any collector or other ofiicer •COLLECTION OF TAXES, 77 for payment of taxes, shall be admitted as competent evi- dence of the fact of notice, upon any trial on the validity of such sale ; provided, thdt such affidavit, made upon one of the original advertisements, or upon a. copy of one of them, be filed and recorded in the registry of deeds of the county vrhere the land lies, within six months after such sale. 75. § 23. 60. The collector shall give notice of the time and place of sale of any real estate taken for taxes, by an advertise- ment thereof, three weeks successively, in some newspa- per of the county where the real estate lies, if there be any such newspaper, and if not, then a newspaper printed in any adjacent county ; the last publication of which ad- vertisement shall be at least one week before the time of sale. lb. § 24. 51. The advertisement, required in the preceding sec- tion, shall state the names of the owners, if known to the collector, with the amount of tax assessed on their lands respectively, a substantially accurate description of the rights, lots, or divisions, of the real estate to be sold, and, where the owners are not so known, the advertisement shall state the amount of the taxes on the several rights, lots, or divisions, of the real estate to be sold as aforesaid. lb. § 25. Stat. 1848, C.-166, § 3. 4 Oush. 265. 52. When any real estate, to be sold under the provisr ions of this chapter, is situated in any town, the name of which shall have been changed by law, within three years next preceding the sale, the collector shall, in his adver- tisement and notices of the sale, designate such town by its former and also its present name. JR. S. c. 8, § 27. 53. The collector shall also post up a notice, similar to that required by the two preceding sections, in some con- venient and public place, in his precinct, three weeks be- fore the time of sale, and also on the premises by him ad- vertised to be sold for non-payment of taxes : provided. 78 TOWN orriCEE. any part of sucli premises shall be bounded by any street, lane, court, or public highway. lb. § 27. Stat. 1848, c. 166, § 4. 54. If no person shall appear to pay the taxes, at the time and place appointed for the sale of real estate, taken for taxes, the collector shall sell, by public auction, so much of the real estate, as shall be sufficient to discharge such taxes and all necessary intervening charges. R. S. c. 8,' § 28. 55. If in the opinion of the collector, any parcel of real estate cannot be conveniently divided, and a part thereof be set oif, without injury to the residue, he may, as he shall judge to be most for the public interest, either take and sell the rents and profits of the whole parcel, by public auction, for such term of time, as shall be sufficient to dis- charge the tax thereon, with necessary intervening charges, or he may sell the whole of the land itself, and, after first satisfying such taxes and charges, shall pay over the resi- due of the proceeds of the sale to the owner of the estate, upon demand. lb. § 29. 56. The collector may adjourn his sale from day to day, not exceeding seven days in the whole ; and he shall give notice of every such adjouriunent by a public declaration thereof, at the time and ■place previously appointed for the sale. lb. § 30. 57. The collector shall execute and deliver to the jpur- chaser a deed of the real estate, or of the rents and profits sold : which deed shall state the cause of sale, the price for which the estate, or rents and profits were sold, on whom the demand for the tax was made by him, the places in the town or city where notices were posted, the newspaper in which the advertisement of such sale was published, and the place of residence of the grantee ; and if the real estate shall have been sold, shall convey, sub- ject to the right of redemption, provided for in the next COLLECTION OP TAXES. 79 section, all the right and interest, -which the owner had therein, at the time when the same was taken for his taxes. Such deed, in order to be valid and effectual, shall be re- corded within thirty days from the day of sale. H. S. c. 8, § 31. Stat. 1848, c. 166, § 5. 58. The owner of real estate, sold for payment of taxes, or his heirs or assigns, may at any time within two years , from the day of sale, redeem the estate sold, by paying or tendering to the purchaser, his heirs or assigns, the sum paid by him, with ten per cent, interest and all necessary intervening charges ; and, when the rents and profits shall he sold for payment of taxes, the same may be redeemed at any time within the said two years, in the manner pro- vided, in the seventy-third chapter of the revised statutes, for the redemption of rents and profits taken on execution. R. S. c. 8, § 32. 59. If upon reasonable search, the purchaser of any real estate sold for non-payment of taxes cannot be found in the town or city of which he is described in the collec- tor's deed as resident, then the owner of such real estate may redeem the same, in the manner prescribed by the preceding section, on paying to the treasurer of the town or city where such real estate is situated, the amount spec- ified in said section. Stat. 1848, u. 166, § 6. 60. When real estate is sold for the non-payment of taxes, it may be redeemed in the cases hereinafter speci- fied, notwithstanding the expiration of two years from the day of sale. . 1st. When no person is named in the tax list, as the owner or occupant of the premises, they being taxed as belonging to persons unknown. 2d. When the person, who is named in the said list, is merely a tenant or occupant of the premises, and not the rightful owner thereof. 80 TOWN orriCEB. 3d. When there is any error in the name of the person intended to be taxed. Stat. 1850, c. 98. 61. In the cases before mentioned, the estate maybe redeemed by any person having a lawful title thereto, at at any time -within two years after he shall have had actual notice of the sale ; provided, that his title to the premises is such, that he might have recovered the same, if no such sale had been made, Stat. 1850, c. 98, § 2. 62. It shall be the duty of the treasurer to receive such money, when paid to him, as aforesaid ; and to give to the person paying the same,' a certificate of such payment, specifying the estate on which the tax was originally as- sessed ; and such certificate may be recorded in the regis- try of deeds, with a note of reference from such record to the collector's deed ; and, when so recorded, shall have the efiect to release and discharge all the right and title acquired under the collector's deeds. It shall also be the duty of such treasurer to hold all money, which may be received by him by virtue of the foregoing provision, for the use and benefit of the person entitled thereto ; and to pay over the same on reasonable demand. Ih. § 7. 63. The affidavit of any disinterested person, taken be- fore a justice of the peace, of the search made under the fifty-fifth section, shall be admitted as competent evidence of the facts therein stated, provided such afiidavit shall be made and filed in the registry of deeds within ninety days from the time when said search shall have been completed, Ih. § 8. 64. When any town shall neglect to choose a collector, the sheriff of the county or his deputy shall collect the taxes assessed therein. R. S. c. 8, § 33. See Collectors, 8, 65. When the tax list and warrant of the assessors shall be committed to the sheriff", or his deputy, he shall, forthwith, post in some public place, in the town assessed, an attested copy of such tax list and warrant ; and shall COLLECTION OP TAXES. 81 make no distress for any tax, till after thirty days from the time of posting up such copy. lb. § 34. 66. If any person shallpay his tax on such list, within the thirty days mentioned in the preceding section, the of- ficer shall receive for his fees, five per cent, on the sum assessed ; but if any tax shall remain unpaid after the said thirty days, the officer shall proceed to collect the same, by distress or imprisonment, in the same manner as collectors are required to proceed in the like cases ; and the officer may also levy his fees for service and travel, in the collec- tion of each person's tax, as in other cases of distress and commitment. Ih. § 35. 67. If any collector of taxes shall neglect to pay, with- in the time required by law, such sums of money as ought by him to be paid to the state treasurer or county treasur- er, the town, by which such collector was appointed, shall be liable for such sums, to be recovered in an action of debt, at the suit of the treasurer of the state, or of the county respectively. lb. § 37, 38. ' 68. If any collector shall neglect seasonably to pay any state or county tax committed to him, whereby the town shall be compelled to pay the same, or shall neglect sea- sonably to account for and pay in any town tax committed to him, the town may recover the amount thereof, with all damages sustained through such neglect, with interest, by an action on his official bond, if any shall have been given, and if none, by an action for money had and received. lb. 44. 69. If any collector shall die before completing his col- lection of any tax committed to him, the assessors may ap- point some suitable person to complete the collection, who shall receive a reasonable compensation, to be paid by the town, and they may commit the same tax list to him with their warrant accordingly ; and such person shall have the same power and duties, and be under the same liability as other collectors are. lb. § 39. 82 TOWN OFFICEK, 70. If any collector shall become insane, or otherwise in the judgment of the assessors, unable to discharge his duty, or shall abscond, or shall remove, or, in the judgment of the assessors, shall be about to remove from the town, or shall refuse, on demand, to exhibit to the selectmen or assessors his accounts of collections, the assessors may re- move him from office, and appoint "another collector, as in the case of the death of the collector. Ih. § 40. See Collectors, 5. 71. In case of the death or removal from office of any collector, it shalf be the duty of his executors or adminis- trators, and of all other persons, into whose hands any of his unsettled tax lists may come, forthwith to deliver the same to the assessors, lb. § 41. 72. If, in consequence of the collector's failing, vsdth- out his own default, to collect any tax, there shall be a deficiency of the amount due on any state or county tax, it shall be supplied by the collector, from the proceeds of the collection of town taxes, if any, in his hands ; and, if he have none, by the town treasurer, on the written requi- sition of the collector. lb. § 42. 73. The collector shall be credited with all sums abated j»apcording to law, and with the amount of taxes assessed %pon any person who has been committed to prison within ' one year from the receipt of the tax list by the collector, and has not paid his tax, and also with any sums, which the town may see fit to abate to him, due from persons who shall have been committed after the expiration of one year. lb. § 43. 74. Every collector, shall once in every two months, if required, exhibit to the selectmen, and, where there are no selectmen, to the assessors, a true account of all moneys received on the taxes committed to him, and produce the treasurer's receipts, for all money paid into the treasury by bim. Jb. § 45. COLLECTIOK OF TAXES. 83 75. If any collector shall neglect so to exHbit Hs ac- counts, he shall forfeit to the use of his town the sum of two and a half per cent, on the sums committed to him for collection. lb. § 45. 76. It is a well settled rule of law that executive officers are not liable to actions for the regular execution of pre- cepts sufficient in point of form, and coming from an au- thority having jurisdiction of the subject. 13 Mass. 282, 283. Ih. 288. 19 Pick. 436. 77. This rule applies to collectors. In every case with- in the power of the assessors to decide, their warrant jus- tifies the collector, and he is holden to execute it ; for he does not incur the penalty of their misdoings, or wrong estimates. 10 Mass. 119. 13 Mass. 282, 283. 78. Nor is he responsible for the regularity of the town meeting or the validity of the votes of the meeting at which the tax is granted. 19 Picl\ 436, 440. 79. Fees* for levying a tax of distress for any sum not exceeding one hundred dollars, are four cents for every dollar ; all above one hundred dollars, and not exceeding two hundred dollars, two cents for every dollar ; and for all above two hundred dollars, one cent for every dollar ; necessary travel one way, four cents a mUe. R. S. c. 122, § 5. And all actual expenses necessarily incurred in keeping the goods distrained and in making the sale. P. S. c. 8, § 8 «fe 10. 1 Pick. 177. For selling real estate for the payment of taxes, the same rate of poundage, the same travel, and all necessary inter- vening charges. P. S. c. 8, § 27 & 31. ^No fees are expressly pravided by law for collectors ; but the Ke- vised Statutes direct that in all cases not expressly provided for by law, the fees of all public officers, for any official duty or service, shall be at the same rate as then prescribed in the one hundred and twenty second chapter, for the like services. R. S. e. 122, § *!. The like services are those of the Sheriff. See S. S. c. 122, § 6. 84 TOWN OFPICEK. Where the delinquent is committed to jail, the collector would be entitled to the same poundage and travel. 4 Mass. ill. He would also charge for the copy of the warrant left with the jailor, at the rate of, twelve cents a page. B. S. c. 122, § 5. Page, used as a measure of computation, means two hun- dred and twenty-four words. Ih. § 22. CONSTABLES. 1. Nature of the office. I 2. How chosen and ewom. j 3. Penalty for refusing to serve as ' constable. 4. If person elected constable shall " not declare his acceptance &c., a new choice to be made. 5. If he refuses to take the oath, town treasurer shall prosecute. 6. Persons exempted from being con- Btables. 7. To be collector of taxes, when, 8. Constables must serve warrants of treasurers, when collectors. 9. Constables to notify persons elect- ed to office. 10. Constables shall serve writs, war- rants, &G. 11. Constables may serve notices of petitions to general court &c. 12. Constables may serve writs in I)ersonal actions, and also any process of replevin, where the damages or sub- ject matter does not exceed one hun- dred dollars. 13. Constable not competent to serve civil process until he has given bond. 14. "When so requirpd not obliged to serve. 15. ** may serve writs where their towns, Sec, are parties. 16. *' may serve process in unincorporated places annexed, Ac. 17. ** may convey persons or property taken to the jail, &c., out of their town. 18. " may arrest and confine persons for disturbing town meetings. 19. " must execute, warrant from coroners. 20. " mual make returns of the same. 21. Penalty for not executing and re- turning such warrants. 22. When any jurors fail to appear, how constable should complete the number. 23. Warrant of coroner, to constables of what town may be directed. 24. Constables to serve venire for jurors on selectmen, &c. 25. " to summon jurors. 26. Venire issued in term time when sei-ved, &c. 27. Penalty for neglect of duty. 28. Constables exempt from serving as jurors. 29. The office of Justice of the peace is not incompatible with that of con- stable. 30. May apprehend offenders in cases of felony, Ac, without warrant. 31. Where affray takes place in his presence, may keep the parlies in cus- tody till it is over. 32. May demand the assistance of others, when. 33. Where affray is past cannot arrest without warrant. 34. How long constable may imprison a felon, after arresting him. 35. May break open doors to take a felon. 36. Cannot without warrant, arrest except, Ac. 87. Constables to complain of the breaches of certain laws. 38. Justices of the peace may com- mand the assistance of constables, Ac, for suppressing riots, Ac. 89. What offenders constables Ac, may arrest without written warrant. 40. Selectmen may appoint special constables. 41. Fees of constables. 42. Police officers and their powers and tenure of office. 43. Police officers for the city of Bos- ton ineed not be sworn. 1. The office of constable is eitker ministerial, in obey- C01fSTABI.ES. 85 ing warrants and other precepts, or is original, as a con- servator of tlie peace at the conunon law. The ministerial duties of constables include, first, the service of writs, warrants and other processes from courts of law, in which, to a certain extent, he has concurrent powers with the sheriff; and secondly the execution of processes issiiing from the municipal authorities or having relation to municipal business. We shall confine our- selves under this title to the duties of constables as town officers, with a brief notice of their authority at common law as conservators Of the peace. In the execution of pre- cepts from the courts they are governed by the same rules as the sheriff or his deputies. Instructions so fuU and minute as an officer would require who wishes to do that business securely and accurately, would require too large a space in our manual. Any other would be of little value.* 2. Constables are to be chosen by written ballots and sworn to the faithful discharge of the duties of office. See town officers and their election. § 1, 2, 3. 1851, c, 94, § 3. 3. Any person chosen to the office of constable, not be- ing exempted from serving therein, and being able in per- son to execute the same, who shall refuse to take the oath and to serve in such office, shall forfeit to the use of the town the sum of twenty dollars, c. 15, § 66. 4. Every person, chosen- to the office of constable, shall, if present, forthwith declare his acceptance or refusal of the same ; and in case he shall not declare his acceptance, the town shall proceed to a new election, until some one shall accept the office and take the oath. lb. § 67. 5. Any person, who shall be present in town meeting, and declare his refusal to serve in the office of constable. * See Hartshorn's New England Sheriff, for a full and accurate digest of the laws on this subject. 8 86 TOWK orricEK. or who shall neglect, for the space of seven days, after being summoned, to take the oath of office, and shall not pay the fine aforesaid, shall be prosecuted therefor by the treasurer of such town. Ih. § 68. 6. No person, who is in commission for any office in this state or of the United States, or who is a minister of the gospel, or a member of the council, senate, or house of representatives, or who has been a constable or collector of taxes, of any town, within seven years next preceding, shall be obliged to accept the office of constable. Ih. § 69. 7. Constables are to be collectors of taxes, when the town does not choose persons to that office, or when those chosen refuse to serve. \lh. § 33. 8. Constables shall execute all warrants from the town treasurer, who shall also be appointed collector, requiring them to collect taxes due, or to distrain the property or take the body of any delinquent in the payment of the same. Ih. § 61. 9. Constables shall serve all warrants and other process,- es, lawfully directed to them by the selectmen of their town, for notifying town meetings or for other purposes. lb. § 70. See Town meetings, § 2 & 8. Also the warrant of the clerk, directing them^to summon town officers chosen, to appear and take the oath of office. lb. § 39. See Town Officers and their Election. § 9. 10. And all writs, and warrants and other processes to them directed by the judges of probate, county commis- sioners, and justices of the peace. R. S. c. 83, § 11, c. 84, § 3, c. 85, § 30. 1 1 . Constables may serve notices of petitions to the gen- ' eral court, subpoenas, and notices to take depositions. S. S. e. 2, § 9, c. 94, § 2, 18. 12. Any constable, who shall have been duly appointed for any city or chosen for any town of this Commonwealth, and who shall have given bonds in the manner hereinafter CONSTABLES. 87 set forth, may serve, within his own city or town, any writ, or other process, in any personal action, in which the damages shall not he laid at a greater sum than one hundred dollars, and also any process of replevin in which the suhject matter shall not exceed in value one hundred dollars. Stat. 1851, c. 94, § 1. 13. No constahle shall be competent to serve any writ or execution, in any civil action, until he shall have given to the city or the inhabitants of the town, for which he may have been appointed or chosen, a, bond with sureties, to the satisfaction of the mayor and aldermen of the city or the selectmen of the town, in a sum not less than five hundred dollars, with condition for the faithful performance of his duties, as constable, in the service of all civil pro- cesses which may be committed to him, and shall have caused the same, with the requisite approval certified thereon, to be filed ia the office of the clerk of such city or town ; and it shall be the duty of the said clerk to note upon the bond the time when the same was so filed, and any person injured by any breach of the condition of said bond, may at his own expense, institute a suit thereon in the name of said inhabitants and prosecute the same to final judgment and execution. Stat. 1845, c. 70, § 1. Stat. 1851, c. 94, § 2. 14. No constable of whom such bonds shall be required, shall be competent to serve any civil process, till such bond shall be duly executed, approved, and filed in the town clerk's office, and no person of whom such bond shall be required as aforesaid, shall be liable to any fine for the non-accepta'nce of the office of constable. Jb. § 4. 15. Any constable may serve any such writ or process as described in the preceding section, and any warrant or other process in criminal cases, in which his town, parish, or religious society or school district is a party, or inter- ested, lb. § 72. 88 TOWK OFFICEE. 16. When any unincorporated place is annexed to any town for the purpose of taxation, the constables of such, town shall have and excercise, in such unincorporated place, the same powers as if the same were a part of their town. 76. § 74. 17. Every constable may, in the execution of a warrant or writ duly directed to him, convey, beyond the limits of his own town, as well any prisoners, as things, in his cus- tody under such process, either to the justice who issued it, or to the common jail or house of correction of the county of which such constable is an inhabitant. Ih. § 75. 18. Constables under the directions of the presiding officers, must arrest and confine persons conducting them- selves in a disorderly manner at town meetings. Ih. § 30. See " Town Officers," § 19. 19. Any constable receiving a warrant from a coroner, must forthwith execute the same by summoning six good and lawful men of the county to appear before such coroner at the time and place mentioned in the warrant. R. S. c. 140, §2. 20. At such time the constable must repair to the place where the dead body is and make return of his warrant to the coroner, and of his doings thereon under his hand, lb. § 3. 21. Any constable, who shall unnecessarily neglect or fail to execute or return such warrant, shall forfeit the sum of ten dollars : which forfeiture may be recovered to the use of the county, with costs of suit, by action of debt, or on the case, to be brought by the coroner. Ih. § 3. 22. If the six jurors returned shall not all appear, the constable, if so ordered by the coroner, shall return ju-- rors, from the by-standers, to complete the number, Ih. § 4. 23. The warrant of the coroner may be made to the constable of the town where the dead body is, or of one of the adjoining towns, lb. § 2, CONSTABLES. 89 Tte auttority of the constable under tte warrant, it •will be seen, extends beyond tbe town of wMcb be is the officer. 24. It is the duty of a constable upon the receipt of a " venire " for jurors, to serve the same vrithout delay on the selectmen and town clerk. JR. S. c. 95, § 15. 25. He shall also, four days at least before the time when the jurors are required to attend, summon each per- son who is drawn, by reading to him the venire, with the indorsement thereon of his having been drawn, or by leav- ing at his place of abode a written notification, of his hav- ing been drawn, and also of the time and place of the sit- ting of the court, at which he is to attend, and shall make a return of the venire, with his doings thereon, to the clerk, before the opening of the court from which it was issued, lb. § 17. 13 Met. 325. 26. When however, venires shall issue in term time, they shall be served and returned on such days as the court shall direct. 75. § 18. 27. If by any neglect of the constable in discharging his duties, the jurors to be returned from any place, shall not be duly drawn and summoned to attend the court, he shall pay a fine not exceeding twenty dollars, to be im- posed by the same court, to the use of the county in. which the ofience is committed, lb. § 39. 28. Constables are exempt from serving as jurors. lb. ^2. 29. The office of justice of the peace is not incompat- ible with that of constable, according to the constitution and laws of this Commonwealth. 2 Gush. 577. For the law in relation to the drawing of jurors, see title '-' Duties of Selectmen as to Jurors." 30. At common law, by the original and inherent power which the constable possesses, he may apprehend the of- fender in case of felony, and other aggravated or capital 8* 90 TO"WN OFFICEB. offences, committed in his view, by virtue of his office, and without warrant. Davis's Justice, 38. 31. Where an affray takes place in his presence, he may either keep the parties in his custody till it is over, or he may carry them immediately before a magistrate. lb. 32. He has power to demand the assistance of others, when in the execution of his office for the preservation of the peace, or for the apprehending and securing any per- son for the breach thereof, or for any other criminal cause. lb. andR. S. c. 15, § 77. 33. If the affray be past, and there is no danger of death, the constable cannot arrest the offender without a warrant from a justice of the peace. Davis's Justice, 38. 34. When a felony has been committed, it is agreed that a constable mr y arrest and imprison the felon, till he can be conveniently conveyed to a justice of the peace, or to the common jail. lb. 35. And it is also agreed that he may break open doors to take the felon, if he be in the house, and the constable's entry is denied after demand and notice that he is a con- stable — and the reason is, that he is ex officio, a conserva- tor of the peace, and is not only permitted, but by law enjoined, to take a felon ; and if he omits his duty in this respect, he is punishable for such neglect. But there must be_ a felony done, and the constable must " be ascertained " of the fact. lb. 38 & 39. 36. But in general, a constable cannot, any more than any other individual, of his own accord and without war- rant, justify the arrest of a supposed offender, upon suspi- cion of his guilt, unless he can show that a felony has been committed, and the reasonableness of the suspicion that the party arrested is guilty. Ib.- 37. Constables shall take due notice of, and prosecute for all violations of, the laws respecting the observance of CONSIABLES. 91 tte Lord's day, and of tte laws to prevent profane swear- ing, and the laws against gaming. H. S. c. 16, § 76. 38. The statutes provide that every justice of the peace may, as a conservator of the peace, upon view of any affray, riot, assault, or battery, within his county, without any warrant in writing, command the assistance of every sher- iff, deputy sheriff, and constable, and of all other persons present, for suppressing the same and for arresting all who are concerned therein. H. S. c. 85, § 27. 39. Also, that any constable, or any other person by his order, may apprehend all rogues and vagabonds, and all idle and dissolute persons, who go about begging ; all persons who use any juggling or unlawful games or plays ; conamon pipers, and fiddlers ; stubborn children, runaways, common drunkards, common night walkers, pilferers, and all lewd, wanton, and lascivous persons, in speech or be- havior ; common railers and brawlers, and persons who neglect their calling or employment, misspend what they earn, and do not provide for themselves, or for the support of their families ; all persons who shall sell any spirituous or fermented liquor without license, in the open air, in any booth or other temporary building, and all other idle and disorderly persons, found in any street, highway, or other public place, in the night time, committing any of the of- fences or disorders before mentioned, without a written warrant, and may keep such persons in custody in any convenient place, not more than twenty-four hours, Sundays excepted, at or before the expiration of which time, every such person shall be broxight before a justice of the peace, or police court, i?. »S^. c. 113, § 6 & 7. 40. The selectmen of any town in this Commonwealth, or a majority of the same, are empowered to appoint, for a term not exceeding ten days, special constables, whenever they shall deem it necessary so to do, in order to preserve the public p:;ice ; and all constables so appointed ehall be 92 TOWK orFICBE. sworn to the faithful discharge of their duties, and shall, for the time heing, have and exercise the same powers as other constables, so far as relates to preserving the public peace and the service and execution of criminal processes within the towns respectively where they belong, and any such criminal process may be directed to them accordingly. Stat. 1842, c. 37. 41. The fees of Constables are — For serving a venire, twenty-five cents, and for travel to the place of return, at the rate of 4 cents a mile, to be paid out of the county treasury. For summoning the jurors upon a coroner's inquest, and attendance thereon, at the rate of ninety cents a day, to be paid out of the county treasury. E. S. c. 122, § 8. For service of writs, warrants, executions, subpcenas or other legal processes, the same fees as are allowed to sheriffs for like services. See B. S. c. 122, § 5 & 8. For fees for collection of taxes, see title " Oollection of Taxes," § 61. 42. The mayor and aldermen of the several cities, and the selectmen of the several towns, in this Commonwealth, may, from time to time, appoint such police officers for their respective cities and towns as they may judge neces- sary, with all or any of the powers of constables, except the power of serving and executing any civil process. And the said police officers shall hold their offices during the pleasure of the mayor and aldermen, and selectmen, by whom they are respectively appointed. Stat. \%5\,c. 162. 43. The law does not require that a police officer for the city of Boston, appointed pursuant to statute 1838, c. 123, should be sworn to the faithful discharge of the duties of his office,- and therefore a party indicted for as- saulting such police officer, and obstructing him in the discharge of the duties of his office, cannot defend by showing that he had never been sworn. 12 Met, 233. EXECTIONS. 93 ELECTIONS. I. QUALIFICATIONS OF VOTERS. 1. For town, county and state offl- i from being over seventy years of age. cers and representatives to Congress, 2. For presidential electors. 3. For voters on the question wheth- er town "wiU send representatives to the general court. 4. Analysis of provisions. 5. Payment of tax sufBcient, a.lthoagh illegally assessed. 6. li" paid by another when suflB- cient. 7. Definition of word resident. 8. Persons residing on lands ce^ed to U. S. not entitled to vote. 11. What is to be understood by ex- emption from taxation. 12. Selectmen to make out and poet up lists of voters. 13. Selectmen to he in session for se- curing evidence of qualifications, and to give notice thereof. 14. Sessions where voters exceed one thousand. 15. At such sessions to correct lists of voters. 16. Names of naturalized citizens not to be entered on voting lists with- Persons exempted from assess- | out production of naturalization papers, ment on account of age, poverty or in- 17. Penalty for giving false answer flrmity. to selectmen at such seBsions. 10. Persons exempted from poll tax \ 1. Every male citizen of twenty-one years of age and upwards, (excepting paupers and persons under guardian- ship,) who shall have resided within the state one year, and within the town in which he may claim a right to vote, six months next preceding any election of town, county ox state officers, or of representative to congress, and who shitU have paid, by himself or his parent, master or guar^ dian, any state or county tax, which shall, within two years next preceding such election, have been assessed upon him in any town of this state ; and also every citizen, who shall be by law exempted from taxation, and who shall jn all other respects be qualified as above mentioned, shall have a right to vote in all such elections ; and no other person shall be entitled to vote in such elections. R. S, c. 3, § 1. The provision of the Revised Statutes is the same with that of the third article in the amendments of the Consti* tution, except that it extends the qualifications there re^ quired, to voters, for town and county officers, and for representatives in Congress. See Amendments, Art. 3. 2. Tlie qualifications for voting for electors Qf President 94 TO'VyW OFFICEK. and Vice President of the United States are the same. R. S. c. 6, § 13. 3. The same also, for voting on the question, -whether any town -will send representatives to the general court, and on all questions, relating to the number of represen- tatives, that such town will send. R. S. c. 5, § 2. 4. By an analysis of these provisions, we find that the qualification of voters are — I. Gender — Males only voting. II. Citizenship. — This may result from birth, or be gained under the naturalization laws of the United States. III. Age. — The attainment of majority. IV. Not being under guardianship, nor supported at the public charge. V. Residence in the state, £or one year and that next preceding the election. VI. Residence in the town for the space of six months, and that next preceding the election. VII. The payment of a tax by himself, master, or guar- dian, or exemption from taxation by law. The tax paid must have been ; — 1. A state or county tax. 2. It must have been assessed within two years next preceding the election. 3. It must have been a,ssessed in some town in this state. No persons are exempted by law from taxation withia the meaning of the constitutional provision. See R. S. c. 7, § 5. 11 Pic/e. 538. 5 Met. 591. 5. The payment of a state or/iounty tax, assessed within two years, by one in other respects a qualified voter is sufiicient, although the tax was illegally assessed. 5 Met. 162. 6. So if the tax is paid for him by another, without his previous authority, if he recognizes the act, and repays or promises to repay, on the ground that the person paying acted as his agent. lb, ELECTIONS. 95 7. The word resident as used in our State constitution is synonymous witli inhabitant. To " remove all doubts concerning the word inhabitant," the constitution declares that " every person for the purpose of electing, &c., shall be considered as an inhabitant in that town where he dwelleth or hath his home." See 5 Met. 588, 1 Ante, page 35. For rules to determine questions of residence or domicil, See Ante, pages 35 & 36. 8. Persons residing on lands purchased by or ceded to the United States for navy yards, forts, and arsenals, and when there is no other reservation of jurisdiction to the state than that of a right to serve civil and criminal pro- cess on such lands, do not, by residing on such lands, acquire any elective franchise as inhabitants of such to^^Tis. 8 Mass. 77. Opinion of the Judges, 1 Met. 580. 9. Persons having the requisite qualifications as to age and residence, but who have been, for two entire years, exempted from taxation by town assessors, either by being omitted to be assessed, or by abatement of the tax as being unable by reason of age, infirmity or poverty, to contribute towards the public charges, are not entitled to vote. Opin- ion of the Judges, 11 Pick. 538. 5 Met. 594. If such exemption has not extended to two years, and if the persons in question have paid any tax assessed with- in two years, although exempted the last year, such persons have a right to vote. Ih. But it is not in the power of the assessors to omit any persons in the assessment, or to abate their taxes, against their consent. lb. 10. So under the provisions of the Revised Statutes, c. 7, § 1, and the Statutes of 1843, c. 87, exempting persons over seventy years of age from the payment of a poll ta^ (repealed by Statutes of 1844, c. 145,) the judges were of opinion, that persons who have the requisite qualifications 96 loWN orncEK. as to residence, but who have been exempted from taxation, on account of their poverty, two successive years before their arrival at the age of seventy years, were not entitled to vote, under the third article of the amendments to the constitution. 5 Met. 591. 1 1 . The judges say, in the same opinion, that it is the liability to taxation, not the want of taxable property, which distinguishes citizens generally, from citizens ex- empted by law from taxation. The exemption by law contemplated by the constitution, is an exemption from all taxation, without any distinction between a poll tax and any other tax. Jb. 595. 12. The selectmen shall, at least ten days before the first Monday of March, and at least ten days before the second Monday of November annually, make out correct alphabetical lists of all the persons, qualified to vote for the several officers, to be elected at those periods, respec- tively, and shall, at least ten days before the said elections, cause such lists, respectively, to be posted up in two or more public places, in their respective towns. JR. S. c. 3, §5. 13. The selectmen shall be in session, at some conven- ient place, for a reasonable time, within forty- eight hours next preceding all meetings for the elections of any of the officers aforesaid, for the purpose of receiving evidence of the qualifications of persons claiming a right to vote in such elections, and of correcting the lists of voters ; and such session shall be holden. for one hour at least on the day of such election, and before the opening of the meet- ing ; and notice of the time and place of holding the said sessions, shall be given by the selectmen, upon the lists posted up as aforesaid. lb. § 6. 14. In any town, where the number of qualified voters shall exceed one thousand, such session of the selectm,en shall be holden on the day immediately preceding the meet- MEETINGS rOE ELECTIONS. 97 ing, and for as much longer time, previous to said day, as tte selectmen shall judge necessary, for the purpose afore- said ; and when the day, immediately preceding such meet- ing, shall be Sunday, then such session shall be holden on the Saturday next preceding. Ih. § 7. 15. At the meetings provided for in the last two sections, the selectmen shall revise and correct the lists of voters, and shall place thereon the name of any person known to them, or shown to be qualified to vote in such elections, and shall erase therefrom the name of any person known to them, or shown not to be qualified to vote therein. Stat. 1839, c. 42, § 4. The provision of the last section shall not apply to any city. Stat. 1839, c. 165, § 3. 16. Whenever the authorities of any city or town shall make up the list of legal voters of said city or town, they shall, before putting upon said list the name of any nat- uralized citizen, require such person to produce for their inspection his papers of naturalization, and shall be sat- isfied that such person has been duly and legally natural- ized, except that they need not require the production of said papers by any person after they shall have once ex- amined and passed upon the same. Stat. 1855, c. 416. 17. If any person shall give a false name or any false answer to the selectmen, when in session for correctihg lists of voters, he shall forfeit the sum of thirty dollars for each ofl'ence. R. S. c. 3, § 8. TOWN OFFICES. 11. MEETINGS FOR ELECTIONS. 1. "When to be opened. 2. Not to be held on days designated by law for military duty. 3. For election of state officerB, on what days to be held. 4. Adjouniment for choice of repFe- sentatives. 5. For election of representatives to congress and presidential electors when to be held. 6, For election of county officers when. 7. For election of governor and sen- ators must be warned seven days before election. 8. For election of Fepresentatives how warned. 9, Selectmen to give notice of mode of voting and of time of opening the polls. 1 . All meetings for tlie election of governor, lieutenant governor, senators and representatives of the Common- ■wealth, electors of president and vice president of tlie United States, or of representatives to Congress, may be opened as early as nine o'clock in the forenoon of the day of election, and shall be opened at two o'clock in the afternoon. St. 1841, c. 70. 2. No meeting for the election of state, county or town officers, or of electors of president and vice president of the United States, or of representatives in congress, shall be held on any day, on which the militia of the Common- wealth are by law required to do military duty. i?. S. c. 4, § 1. 3. The meeting for the choice of governor, lieutenant governor, counsellors, senators and representatives, shall be held on the Tuesday next after the first Monday in November, annually ; but in case of a failure to elect representatives on that day, a second meeting shall be holden for that purpose on the fourth Monday of the same month of November. Am. of Gon. 1855, art. 2. 4. The Constitution does not admit of an adjournment of the second meeting for the choice of representatives, which it provides for being held on the fourth Monday of November, to a day beyond such fourth Monday. Opin- ion of the Judges, 23 Pick. 647. 5. Meetings for the choice of representatives in Congress and electors of president and vice president of the United MODE OF CONDTJCTING ELECTIONS. 99 States are also to be held on tte Tuesday next after the first Monday in November. Stat. 1848., c. 35. U. S. Stat. 1845, In case of no choice in a representative district, or of a vacancy occurring in the representation, meetings will be held on such days as the executive precept shall direct. lb. § 647. 5 6. County oiBcers are to be voted for as follows, viz : — The treasurer at the annual meeting ; the register of deeds at the annual meeting and once in five years ; the county commissioners on the first Monday of April and once in. three years. See " Election of County officers." 7. Meetings for the election of governor, lieutenant gov- ernor and senators must be warned seven days at least, before the day of election. See and compare Constitution, c. 1, § 2, Art. 2, e. 2, § l.Art. 3. Amendments of Same, Article 10. 8. Meetings for the election of representatives in the general court, shall be notified by the selectmen of each town, in the manner legally established in such town, for calling other tovTn meetings. -K. S. c. 5, § 5. 9. The selectmen must give notice in their warrants for meetings for the election of state officers, of presidential electors and of representatives in Congress, whether said officers shall be voted for on one ballot, or at the same time on separate ballots, also of the time or times when the polls for the choice of the several officers shall be opened. See " Mode of conducting Elections.''' § 7, 8. la MODE OF CONDUCTING ELECTIONS. 1. Who are to preside at elections. 2. Presiding officers to have lists of voters. 3. At .certaiQ elections no vote to be reeeived till the name of the voter Is checked upon the list. 4. J^t others selectmen may cheek names if they see fit. 5. Ballots to designate persons vo- ted for, except Ac. 6. At certain elections no vote to he received miless presented open and un- folded. 100 TOWN OFFICER. 18. Penalty fof aiding or abetting il- legal voting. 19. " for disorderly conduct at elections. 20. Selectmen when not answerable for refusing to receive votes. 21. Selectmen may strilce names from list, even after opening of meeting. 22. Moderator shall receive votes of persons on the list— may refuse all others. 23. Penalty on selectmen for neglect of duty. 24. Liability for refusing votes of qual- ified voters. 25. Mode of determining result of elections. 26. Plurality of votes to elect. 27. So where more than one to be chosen. 28. Election valid though illegal votes are received. 7. Governor, &e., may be voted for on one ballot or separate ballots. 8. Selectmen to give notice in war- rant of mode of voting. 9. "Warrants to spedfy times when polls shall be opened. Polls how long to be kept open. 10. Provisions as to opening and clos- ing polls in choice of representatives. 11. Provisions of last two sections not to apply to cities. 12. Every vote to be deposited by voter in person. 13. Votes for state officers, presiden- tial electors, representatives in Congress may be sealed or open : what votes to be rejected in counting. 14. Commonwealth to provide envel- opes. 15. Penalty for voting if not qualified. 16. " for giving in more than one ballot. 17. " for giving false answers to presiding officers. 1. At all meetings for the election of governor, lieuten- ant governor, senators, representatives in tlie general court, representatives in congress, electors of president and vice president of tlie United States, and county commissioners^ the selectmen shall preside. Con, c. 1, § 2, art. 2. lb. c. 2, § 1, art 3. lb. c. 2, § 2, art. 1. H. S. c. 5, § 6. lb. c. 6, § 3. lb. § 16. E, S. c. 14, § 17. At all others a moderator. R. S. c. 15, § 26. 2. The selectmen, moderator, or town clerk, at any meeting held for the election of town or other officers, shall be provided with a complete list of the persons quali- fied to vote at such election, and no person shall vote at any election whose name shall not have been previously placed on such list. R. >S'. c. 4, § 3. 3. At the election for > governor, lieutenant governor, senators and representatives of the Commonwealth, electors of president and vice president of the United States, or of representatives in congress, or at any election, for select- men and town clerk, of any town, or for mayor, aldermen or common council of any city, no vote shall be received until the name of the person offering the same shall have been found upon the list, and checked by the presiding MODE OF CONDUCTING ElECTIDNS. \ \ ofiLcers, or by some one appointed by them, tberefor. 1839, c. 42, § 5. 4. No person sball vote at any election till the presiding officer shall have had an opportunity to find the voter's name on the list. But at elections other than those men- tioned in the preceding section, the law does not require the presiding officers to check the names of voters, but leaves it to their discretion. R. S. u. 4, § 3. Stat. 1839, c. 42, § 5. 5. All votes and ballots for governor, lieutenant gov- ernor, senators, and representatives of the Commonwealth, and representatives in Congress, whether deposited in the ballot bos in a sealed envelope or not, shall clearly indi- cate, in print or writing, the office for which each person voted for is designed ; and no vote which does not so in- dicate it, shall be counted ; provided, however, that in all trials for the choice of representatives to the General Court or to Congress, when no other officer is voted for, the office need not be indicated in print or in writing. Stat. 1854, c. 59. 6. No vote shall be received at the elections mentioned in the third section unless the same be presented for de- posite in the ballot box open and unfolded. The provision of the statute does not, in terms, apply to other elections. St. 1839, c. 42, § 5. 7. The governor, lieutenant governor, senators, and rep- resentatives of the Commonwealth, electors of president and vice president of the United States, and representatives to Congress, may be voted for on one ballot, or at the same time on separate ballots. St. 1839, c. 42, § 1. 8. The selectmen of the several to^vns, and the mayor and aldermen of the several cities, shall decide whether said officers shall be voted for on one ballot or at the same time on separate ballots, and shall give notice thereof in the warrant calling the meeting. Stat. 1841, c. 70, § 1. 9* 102 TOWN OFFICEE. The statute of 1841 leaves in force the provision of the revised statutes requiring that at the elections of senators, each voter shall give in his vote on one ballot, for a num- ber of persons, not exceeding the number of persons to be chosen. R. S. c. 4, § 5. Also the provision relating to electors of president and vice president of the United States. Ih. c. 6, § 15. 9. The warrant for notifying a meeting for voting for the officers mentioned in the sixth section, shall specify the time or times when the polls for the choice of the sev- eral officers shall be opened ; and the same shall be kept open at least two hours, and for such longer time as a majority of the voters present shall by vote direct. Stat. 1839, c. 42, § 2. 10. When a town, having a right to choose and voting to choose more than one representative to the general court, shall elect to choose them separately, the provisions con- tained in the preceding section, prescribing the time of opening and closing the polls, shall apply only to the choice of the first representative to be thus chosen ; and in any case of balloting for a representative to the general court, if no person is elected on the first ballot, the said provisions shall not apply to any subsequent balloting for such representative on the same day : provided, that in no case shall the polls at such elections be opened after five o'clock in the afternoon of said day. Stat. 1839, c. 42, § 3. St. 1843, c. 94. Stat. 1844, c. 78. 1 1 . The provisions of the last two sections do not apply to cities. Stat. 1839, § 3. 12. No vote shall be received by the presiding officer at any of the elections provided for in this chapter, unless deposited in the ballot box by the voter in person. £. S. c. 4, S 4. 13. All votes and ballots for governor, lieutenant gov- ernor, senators, and representatives of the Commonwealth, MODE OF CONBrCTING ELECTIONS. 103 electors of presideiit and vice" president of the United States, and representatives in Congress, may be deposited in the ballot box in a sealed envelope, or without any en- velope, at the option of each voter ; and if in any case more than one vote or ballot is found in any one envelope, bearing the name of the same person for the same oifice, all but one vote or ballot shall be thrown out ; and if two or more votes or ballots be found in one envelope bearing the names of different persons for the same office, all such votes and ballots shall be rejected ; and any envelope found to contain only a blank shall not be counted as a vote or ballot. 14. Self-sealing envelopes of uniform size and color bearing the emblematic seal of the Comjnonwealth shall be furnished at the expense of the State, (as heretofore in accordance with the provisions of a law passed in the year eighteen hundred and fifty-one,) to all persons who may desire, at any election hereinbefore specified, to deposit their ballots therein, and no other envelopes shall be used at the polls. Stat. 1853, c. 36. 15. If any person, knowing himself not to be a qualified voter, shall, at any election, wilfully give in a vote, for any officer to be then chosen, he shall forfeit a sum not exceeding one hundred dollars, for each offence. lb. § 6. 16. If any voter shall knowingly give in more than one ballot, at any one time of balloting, at any election, he shall forfeit a sum not exceeding one hundred dollars. Ih §7. 17. If any person shall wilfully give any false answer to the selectmen or moderator, presiding at any election, he shall forfeit, for each offence, a sum not exceeding one hundred dollars, lb. § 8. 18. If any person shall wilfully aid or abet any one, who is not legally qualified, in voting or attempting to 104 - TOWN OFFICER. vote at any election, he shall forfeit a sum not exceeding fifty dollars, for every such, offence. Jb. § 9. 19. If any person shall he disorderly in any meeting held for any election mentioned in this chapter, he shall forfeit a sum not exceeding twenty dollars. lb. § 10. 20. The selectmen, in case they shall have duly entered on said list of voters, the names of all persons who shall have heen returned to them hy the collectors, shall not be held answerable for any omission in said list, nor for re- fusing the vote of any person whose name is not borne thereon, unless the person whose name may have been so omitted, shall, before offering his vote, furnish them vrith sufficient evidence of his having the legal qualifications of a voter at such meeting, and shall have requested them to insert his name on said list. S. S. c. 3, § 9. 21. Selectmen have authority even after the opening of a -town meeting to strike from the list of voters the name oj' a person who is not a legal voter. 5 Met. 162, 168. 22. The moderator of any town meeting shall receive the votes of all persons whose names are borne on the list of voters, as certified by the selectmen ; and he shall in no manner be held answerable, for refusing the vote of any person whose name is not on the said list. B. S. c. 3, §10. 23. If any selectman, or other town or city ofiicer, shall wilfully neglect or refuse to perform any of the duties re- quired of them respecting elections, by the above provis- ions, they shall, severally, for each offence forfeit a sum not exceeding two hundred dollars. H. S. c, 2, § 11. 24. The selectmen are liable for refusing the vote of one legally qualified, even if' that refusal is the result of an honest mistake and error of judgment. 11 Mass. 350. 12 Pick. 485. 23 Pich. 309. Yet in an action where the municipal ofiicers acted in good faith, and the object was to settle a really doubtful MODE OF CONDTJCTIlirG EJECTIONS. 105 right, the jury would take care to give slight damages. 12 Pick. 487. A voter who is challenged at the polls, caimot maintain an action against the selectmen for refusing to receive his vote, if they do not act wilfully or maliciously, hut under a mistake into which they are led by his conduct, which was likely to mislead them into a belief, that he had aban- doned his claim to a right to vote. 5 Met. 162. 25. In order to determine the result of any election in this Commonwealth, the whole number of persons who voted at such an election, shall first be ascertained, by counting the whole number of separate ballots given in ; and in all returns of elections, the whole number of ballots given in, shall be distinctly stated ; but blank pieces of paper shall not be counted as ballots. R. S. c. 4, § 13. 26. In all elections hereafter holden for the choice of town, city, or county officers by the people, the person receiving the highest number of votes shall be declared elected. Stat. 1854, c. 39, § 1. 27. Whenever two or more persons are to be elected to the same office, the several persons to the number required to be chosen having the highest number of votes shall be declared elected. Stat. 1854, c. 39, § 2. 28. It is not a valid objection to an election, that illegal votes were received, if they do not change the majority. A majority of legal voters who choose to vote, always con- stitute an election. "Whenever electors are present and do not vote at all, they virtually acquiesce in the election. When a majority expressly dissent, but do not vote, the election by the minority is good. 21 Pich. 148, 154. 106 TOWN OFFICER, IV. ELECTION AND RETURNS OF ELECTIONS OP STATE OFFICERS. ' 9. Apportionment of Representatives. 10. Towns may be fined fornot choos- ing representatives. 11. Penalty for choosing when not entitled thereto. 12. Votes for, by whom received, sorted, counted, &c. 13. Penalty on selectmen for giving certificate of election of representative in general court, not in accordance with declaration of vote in town meeting. 14. Election to be recorded. 15. Eepresentatives elected, to be no- tified. 16. Certificate of election to be sent to the secretary's ofiice. 17. Form of ceflificate. 18. Return on certificate. 19. Penalty on oflacerB for neglect of their duties. 1. Return of votes for Governor. 2. Lieutenant governor. 3. Senatorial Districts. 4. Return of votes for Senators. 5. Mayor and Alderman and city _ clerk to examine returns of ward offi- cers of cities. Errors how corrected. Returns not to be rejected when num- ber of votes 4c., can be ascertained. 6. Secretary of Commonwealth on receiving returns of town elections un- sealed, to notify returning officers who shall make and transmit copy of their record, sworn to and sealed up. Returns not to be rejected for certain informal- ities. 7. Number of votes to be written in words. 8. Returns how kept at secretary's office. 1. GoTERNOR. — The town clerk, in the presence and witli the assistance of the selectmen, shall, in open town meeting, sort and connt the votes, and form a list of the persons votedfor governor, with the number of votes for each person against his name ; and shall make a fair record of the same in the town books, and a public declaration thereof in the meeting ; and shall in the presence of the inhabitants, seal up copies of the said list, attested by him and the selectmen, and transmit the same to the sheriff of the cotmty, thirty days, at least, before the first Wednesday of January, ^r the selectmen may cause returns of the same to be made to the office of the secretary of the Com- monwealth, seventeen days, at least, before the said first Wednesday of January. See Con. c. 2, § 1, Art, 3. Amendments of same, Art. 10. H. S. c. 5, % 1, 2. L. GoTERNOR. — The declaration and return of votes for Lieutenant Governor, shall be in the same manner, but the list made and sealed up separately.' Oon, c. 2, § 2, Art. 1. E. S. c. 5, § 1. 3. Senators. — The several senatorial districts now ex- isting, shall be permanent. The senate shall consist of forty menibers ; and the year one thousand eight hundred ELECTIONS &C. OF STATE OFEICESS. 107 and forty, and every tenth year thereafter, the governor and council shall assign the number of senators to be chosen in each district, according to the number of inhabitants in the same. But, in all cases at least one senator shall be assigned to each district. Amendments of Con. Art. 13. 4. The selectmen of the several towns shall receive the votes of all the inhabitants of snch towns present and qualified to vote for senators, and shall sort and count them in open town meeting, and in presence of the town clerk, who shall make a fair record in presence of the se- lectmen, and in open town meeting, of the name of every person voted for, and of the number of votes against his name ; and a fair copy of this record shall be attested by the selectmen, and the town clerk, and shall be sealed up, directed to the secretary of the Commonwealth for the time being, with a superscription, expressing the piurport of the contents thereof, and delivered by the town clerk of such towns, to the sheriff of the county in which such town lies, thirty days, at least, before the first Wednesday of January annually ; or it shall be delivered into the Sec- retary's office, seventeen days, at least, before the said first Wednesday of January. See Con. c. 1, § 2, Art. 2. Amendments, Art. 10. 5. It shall be the duty of the mayor and aldermen and the clerk of ep,ch city in the Commonwealth, to examine, as soon as may be after any election, the returns made by the retui-ning officers of each ward in such city, of the results of the election in said ward ; and if any manifest error shall appear therein, in the form of the return, the the mayor and aldermen shall forth-with give notice to said ward officers of the error or deficiency in the form of said return ; and it shall be the duty of said ward officers forthwith to make a new and additional return, under oath, in conformity to the truth in the case, which additional .return, whether made upon such notice, or by the officers 108 iUVYn UJ! J!lUJ!i±t. of any ward without such notice, shall be received by the mayor and aldermen or clerk of said city, at any time before the expiration of the day next preceding the day on which, by law, they are required to make their returns, or to declare the results of said election in said city ; and all the original and additional returns so made shall be examined by the mayor and aldermen, and shall be made part of their returns of the results of such election. And in counting the votes in any election, no returns shall be rejected where the whi-le number of votes given for any officer or representative voted for, and the whole number of votes given for each candidate voted for, can be ascer- tained from such returns. S'at. 1852, c. 209, § 1. 6. When returns of elections from any town are received at the office of the Secretary of the Commonwealth, not sealed up as by law required, the secretary shall forthwith give notice thereof, to the returning officers of said town : and upon the receipt of said notice, said returning officers shall make a copy of their record of the votes cast at said election, and shall make oath to the correctness of said copy; and shall transmit the same to the said secretary, sealed up as is required by law in the case of the original returns. And if, upon the opening of said copy of the record by the governor and council, by the legislature, or by any person or persons duly authorized to open the returns and count the votes, the original return shall be found in substantial conformity with the copy of the record returned as aforesaid, then said original return shall not be rejected because of the informality before mentioned ; provided, that said copy of the record shall have been re- ceived by the said secretary before the expiration of the day next preceding that on which, by law, the returns of said election are to be opened, and the votes counted. atat. 1852. c. 209, § 2. 7. The Revised Statutes direct that the number of votes ELECTIOHS &C. Or STATE OmCEES. 109 for each person, in the above returns, shall be written in ■words, at length against the names. jR. »S. c. 4, § 1 . 8. They also direct that when the lists of votes for gov- ernor, lieutenant governor, and senators shall be received at the office of the secretary, the seals thereof shall not be broken, but the same shall be kept as they are received, until delivered by him to the two branches of the general court, or to the executive authority, lb. It would seem, therefore, that the returns for governor and lieutenant governor, ought also to have a " siiperscrip- tion expressing the purport of the contents,'' otherwise the secretary would be unable to distinguish them from other papers sent to his office. 9. Repeesentatives. — The members of the house of representatives shall be apportioned in the following man- ner: every town or city containing twelve hundred inhabi- tants, may elect one representative ; and two thousand four hundred inhabitants shall be the mean increasing number which shall entitle it to an additional representative. Amendment of Con. Art. 13. Every town containing less than twelve hundred inhab- itants, shall be entitled to elect a representative as many times, -n-ithin ten years, as the number one hundred and sixty is contained in the number of the inhabitants of said town. Ih. Such towns may also elect one representative for the year in which the valuation of estates within the Comnion- wealth shall be settled. Ih. 10. The house of representatives shall have power from time to time to impose fines upon such towns as shall neg- lect to choose and return members to the same, agreeably to the constitution. Con. c. 1, § 3, Art. 2. 11. If any town shall elect and return a representative to the general court, when it shall not be constitutionally entitled thereto, or shall elect and return a greater number 10 110 TOWN OFriCEE. of representatives than it shall be constitutionally entitled to, such towns shall, for each representative, so unconsti- tutionally elected and returned, forfeit a sum not exceed- ing three thousand dollars, at the discretion of the court, before which conviction may be had. B. S. c. 5, § 4. 12. The selectmen, at the meeting for the choice of rep- resentatives, shall openly receive, sort and count the votes given by the qualified voters present, and shall forthwith publicly declare who are the persons elected. lb. § 6. 13. No selectman of any town in this Commonwealth shall give a certificate of election to any person voted for as a representative to the General Court, which certificate shall not be in accordance with the declaration of the vote in open town meeting, at the time when the election so certified took place, under a penalty of three hundred dollars. Stat. 1852, c. 282. 14. The election shall be recorded in the town records, together with the whole number of votes given in, and the names of all the persons, for whom they were given. lb. § 7. 15. The selectmen, within three days after such elec- tion, shall, either by a constable of the town, or by some other person thereto specially authorized by them, give notice of the choice to the representatives elected. /6. § 8. 16. A certificate and return of such election shall be given under the hands of the selectmen present, and shall be delivered into the office of the secretary of the Com- monwealth, or such election shall be certified by the said selectmen to the house of representatives, to their accept- ance, on or before the first Wednesday in January of every year. lb. 17. The certificate of such election shall be, in substance, as follows, to wit : Commonwealth of Massachusetts, county of . Pur- suant to a law of this Commonwealth, the qualified voters ELECTION &C. OP COtTNTT OFFICERS. Ill of tte town of , in town meeting, on tlie day of , instant, for the choice of representatives in the general court, did elect , being an inhabitant of •said town, to represent them in the general court, to be holden on the first Wednesday of January next. Dated ' at , the day of , in the year one thou- Selectmen of sand eight hundred and . Ih. § 9. \ 18. Tlie certificate aforesaid stall have a return thereon, signed by the constahle or other person specially author- ized to give such notice, and stating, that notice of the choice was given to the person therein mentioned to be elected, and that said person was summoned to attend the general court accordingly. Ih, § 10, 19. If any selectman, or other town or city officer, shall wilfully neglect or refuse to perform any of the duties re- quired of him under the provisions of this title, he shall forfeit a sum not exceeding two hundred dollars. StaL 1848, c, 240. V. ELECTION AND RETURNS OF ELECTIONS OF COUNTY OFFICERS. I. Commissioners to be chosen. 5. Time and manner of election, — refcums, how made. 3. If no choice, a new election to he had. 4. Vacancies, how to be filled, when the whole are not chosen. 5. County eommiesion ers to he di- vided into three classes. 6. Commissioners now in office to be divided into classes by lot. 7* One eommissioDer to be chosen each year at time of election of gov- pernor. 8. Chairman to be chosen annually. 9. Special eommissioners now in office to hold until 1856. 10. Time of election and tenure of office of special commission ers. . II. Plurality of votes to elect. 12. Time of meeting of board of ex- aminers. 13. In case of a failure on the second trial, to be appelated by the executive. 14. Two special commissioners. 15. Vacancies by death, -Ac. 16. CommisBioners to be of different towns, except, &c. 17. Commissioners to hold office for three years, and may be re-elected. 18. Provision for Suffolk and Nan- tucket. 19. Meeting for choice of commis- sioners in Barnstable, 20. Election of county treasurers. 21. Cities to vote for register Of deeds and county treasurer in March or April. 22.- At the election of county treas- urer, the votes shall be counted in open town meeting. Ac 112 ■rows' OFFICEE. 23. County treasurers and registers of deeds to be chosen in November every three years. 24-. Counting, recording and certifying uf votes. 25. Kesult of election how determinedi 26. Limitation of term of office' of present registers of deeds. 27. New elections of registers, when to be ordered. 28. Conunission^rB to fUrnish blank?. 1 . In each of the- co-unties, except Suffolk and Nantuck- et, there shall be three county commissioners, who shall be elected as provided in the following section. R. S. c. 14, § 16. 2. On the first Monday of April, in the year one thou- sand eight hundred and thirty eight, and e^'ery third year thereafter, in the several towns of. each county, except Suffolk and Nantucket, there shall be a meeting of the in- habitants, for .the choice of county commiss-ioners ; and at such meeting, the qualified voters of each town shall bring in their written votes on one ballot for three county com- missioners, being all inhabitants of different towns in the county ; and the selectmen shall, in open town meeting, sort and count the votes and the ballots, and make public declaration thereof; and the town clerk shall enter intc the town records the names of all the persons voted for and the number of votes for each, and the whole numbe; of ballots, and shall, within seven days after such election transmit a copy of such records, signed by the selectmei and attested by himself, and sealed up in open town meet- ing, to the clerk of the court of common pleas, who shal transmit the same to the board of exaiminers. Jb. § 17. 3. If, in any county, there shall not be ^ choice of the three commissioners, the board, of examiners shall forth- with issue their warrant to the selectmen of eg-ch town in such county, requiring thero., on a day therein mentioned, which shall be within twenty days ?,fter the issuing of said warrant, to call a. meeting of the inhabitants of their town^ to elect as many commissioners as shall be necessary to complete the number required for the county ; and the said examiners shall furnish the said selectnaen witb ^ complete- ELECTION &C. OF COrNTY OITICEKS. 113 list of the names of all tlie persons who shall at the first choice have received more than twenty five votes, and shall not have been then elected. Ih. § 19. 4. The selectmen of each town, in obedience to the said warrant, shall call a meeting of the inhabitants of their town, and shall lay before them the result of the first choice, as reported to them by the said examiners : and thereupon, the qualified voters aforesaid in such town shall bring in their votes, on one ticket, for the number of com- missioners then to be chosen ; and the like proceedings, in relation to the election and returns thereof, shall be had on the votes thus given, as are required to be had at the first choice of said commissioners; and the said examiners shall, within eight days after such second choice, examine the returns made to them, and forthwith give written notice of their election to the persons then chosen. lb. § 20. 5. The county commissioners now in ofittce in the sev- eral counties, except in Sufiblk and Nantucket, shall be divided into three classes : those of the first class shall hold their ofiices until the day of the next annual election of governor, and until successors shall be chosen and qual- ified in their stead, and no longer ; those of the second class shall hold their offices until the day of the annual election of governor in the year one thousand eight hun- dred and fifty-five, and until successors shall be chosen and qualified in their stead, and no longer ; those of the third class shall hold their offices until the day of the annual election of governor, in the year one thousand eight hundred and fifty-six, and until successors shall be chosen and qualified in their stead. St. 1854, c. 77, § 1.' 6. It shall be the duty of the county commissioners in each of said counties, within sixty days after this act shall take effect, to determine, by lot, to which one of the said classes each member of their board shall belong; they shall cause a record to be made of such determination ; 10* 114 TOWN OFriCBE. and shall, witHn thirty days after such determination, cause an attested copy of said record to be published once, in each newspaper printed in said county. § 2. 7. At the next annual election of governor, and at such annual election in each year thereafter, in each of the counties except Suffolk and Nantucket, there shall be one county commissioner chosen in the manner prescribed in the fourteenth chapter of the Revised Statutes for the election of county commissioners, except so far as such manner is changed by this act ; such commissioner not to be an inhabitant of the same tov?n as either of the com- missioners remaining in office ; and every commissioner so chosen shall hold his office for the term of three years, and until a successor is chosen and qualified in his stead. §3. 8. The county commissioners in each county shall here- after choose a chairman of their board by ballot, annually, at their first meeting after the annual election. § 4. 9. The special commissioners now in office shall hold their offices until the annual election of governor in the year one thousand eight hundred and fifty-six, and until successors shall be chosen and qualified in their places. § 5. 10. At the annual election in the year one thousand eight hundred and fifty-six, and each third year thereafter, in each of the counties except Suffolk and Nantucket, there shall be two special commissioners elected, in the manner provided in this act, for the election of county commissioners, said special commissioners not to be in- habitants of the same town, or of the same town as either of the county commissioners, excepting in the county of Dukes ; and such special commissioners shall hold their offices for the term of three years, and until successors shall be chosen and qualified in their places. § 6. 11. In aU elections of county commissioners and spec- ial commissioners, the person having the highest number ELECTION &C. OE COUNTY OFEICEES. 115 of votes and being otherwise qnalified shall be declared to be elected ; but, in case two oi more persons shall have an equal number of votes, by reason of which neither ,of such persons shall be elected, another election shall be ordered in the manner provided by the fourteenth chapter of the Revised Statutes. § 7. 12. In all future elections of county commissioners and special commissioners, the board of examiners in the sev- eral counties whose duty it is to examine the returns of votes, shall meet and discharge the duties required by law as to such elections, on the first Wednesday of the month next succeeding the election of any such officers. Stat. 1855, c. 3. 13. In case of a failure on the second trial in any coun- ty to elect one or more of the county commissioners, the board of examiners for said county shall report to the sec- retary of the Commonwealth the result of the election, and the same facts which by law they are required to report to the selectmen of the towns in such county ; and the governor shall then proceed, by and with the advice of the executive council, to appoint such a number of county commissioners for such coimty as may be necessary to complete the number of commissioners for such county required by law, such appointment to be confined to those persons not elected, who shall have had the greatest num- ber of votes, being at the same time twice the number of commissioners to be appointed. Stat. 1841, c. 107, § 1 &2. 14. In each of the counties, in which county commis- sioners are to be chosen, there shall also be two special commissioners, who shall be chosen at the same time and in the same manner with the said county commissioners. E.S.c. 14, §21. In case of a failure to elect special commissioners on a second trial, they are to be appointed by the executive in 116 TOWN OFFICEB. tte same manner as county commissioners. Stat. 1842, c. 50. 15. Any vacancy, in the office of tte county commis- sioners, or special commissioners, by death., resignation, or otherwise, may be filled in the manner prescribed for the elections of those officers ; and such vacancy shall be filled at any time, when the said board of examiners shall think it expedient, and shall issue their- warrant thereof ; and each person, chosen to fill such vacancy, shall hold the office for the residue of the term, for which his prede- cessor was elected. B. S. c. 14, § 22. 16. Of the said county commissioners, and special com- missioners, in all the counties except Dukes county, not more than one shall be chosen from the same town ; and in case more than one county commissioner, or special commissioner, from the same town, shall have a majority of the ballots, the person having the largest number, shall be declared to be elected. 15.' § 23. 1 7. The said county commissioners and special commis- sioners, except such as may be chosen to' fill vacancies, shall hold their respective offices for the term of three years, and until others shall be chosen and qualified in their places : and the same persons may be re-elected from term to term. lb. § 24. 18. In the county of Suffolk the Mayor and Aldermen of Boston, and in the county of Nantucket the Selectmen of Nantucket, are to discharge the duties of county com- missioners. H. S. c. 14, § 29, & 30. 19. The inhabitants of the several towns in the county of Barnstable shall hereafter hold their meetings for the choice of county commissioners, on such day during the month of February, not less than eight days before the second Monday of March, as shall be determined by the selectmen of such towns for the time being ; and the meet- ElECTION &C. OF COUKTT omCEES. 117 ings of the board of examiners for said county shall be held on the second Monday of March. Slat. 1840, c. 1. 20. There shall be chosen annually, at the annual meet- ings of the several towns, in each county, except SufFolk- and Nantucket, by written votes of the quali^ed voters, a suitable person, being resident in the same county, to be the county treasurer. E. S. c. 14, § 43. 21. The mayor and aldermen of any city in this Com- monwealth, the inhabitants of which are required by law to vote for register of deeds and county treasurer, shall cause meetings to be held for such purpose, any time dur- ing the months of March or April, according to the pro- visions of law relating to the election of said officers. Stat. 1851, c. 24. 22. At the election of county treasurer, the votes shall be sorted, in open town meeting, by th« moderator thereof and the town clerk ; the names of the persons voted for, and the number of votes which each person had, shall be recorded by the clerk in the town records, and an attested copy of such record shall be transmitted, under seal, to the county commissioners, at their next ensuing meeting, there to he opened and compared with the like returns froni the other towns of such county ; and the person, who shall thereupon be found to have the majority of the said votes, and who shall accept the said office, shall be declared to be the county treasurer. II. § 44. 23. At the annual election in November, in the year eighteen hundred and fifty-five, and every third yes^r there-, after, there shall be chosen, by the qualified voters of the several towns and cities in each county, (except Sufiblk and Nantucket,) a suitable person, being a resident of the county for which he is chosen, to be the treasurer of such county, and another suitable person in each county to be register of deeds therein. Stat. 1855, c. 92, § 1. §4, At said elections the votes shall be sorted and count' 118 TOWN OFI'ICEE. ed by the selectmen of the towns, and by the wardens and ward clerks of the cities, in open town and ward meeting, and public declaration made thereof at such meetings. The names of all persons voted for, and the number of votes received by each person, and the title of the office for which he is proposed, shall be entered by the town clerks in the town records, and by the ward clerks in the ward records, in words at length ; and the said ward clerks shall forthwith deliver to the city clerks certified copies of such records, who shall forthwith enter the same in the city records. The said town and city clerks shall, within ten days from the day of said election, transmit, under seal, attested copies of the records so by them made to the county commissioners of their respective counties. § 2. 25. It shall be the duty of the county commissioners to meet on the first Wednesday of January next succeeding each election as aforesaid, and examine the returns so trans- mitted to them ; and the persons who shall thereupon be found to be legally chosen, and who shall be otherwise qualified, shall be declared to be the county treasurer and register of deeds, and shall hold their respective offices for the term of three years, and until others are chosen and qual- ified in their stead. And in case no person shall be found to be elected, by reason • of two persons having an equal number of votes for either of said ofiices, the commissioners shall proceed according to the provisions of the forty-sixth section of the fourteenth chapter of the Revised Statutes. §3. 26. The registers of deeds for the several counties now in office shall hold their offices until others are chosen and qualified in their stead, in pursuance of the provisions of this act, but no longer. § 5. 27. Whenever a vacancy shall happen in the office of register, or in case no choice shall be made at any trial, ELECTION &:C. OF KEPKESENTATIVESj &C. 119 the commissioners shall forthwith issue notices to the sev- eral towns of the county, or registry district, respectively directed to the selectmen of such towns, and requiring them to notify a meeting of the legal voters of their towns, for the purpose of electing a register, and such notice to the selectmen shall prescribe the day and hour when such meetings shall be held, and the time and place of making returns to the said commissioners of the number of votes and the names of the persons voted for ; provided that the time of making such returns shall never exceed thirty days from the date of such notices. lb. 107. 28. It shall be the duty of the county commissioners of the several counties, previous to the month of March, an- nually, to furnish the clerks of the several towns in their respective counties, blank returns in due form, for the re- turn of the elections of all county officers which are to be elected by the people that year. Stat. 1841, c. 126. VI. ELECTION AND PvETUUNS OF ELECTIONS OF REPRE- SENTATI\^ES TO CONGKESS, AND PRESIDENTIAL ELECTORS. 1. State divided into eleven congres- 1 8. Proceedings when vacancies hap- sional diBtrictg, ! pen. CongreBBional districts. 3. Representatives in Congress to be chosen biennially. 4. Selectmen to seal up and trans- mit the votes ta the sheriff or secretary. 5. Representatives in Congress to be choseu by plurality of votes. 6. When two or more have equal and highest number of votes new elec- tion to be had. 7. Proceedings in case there is no choice. Choice of electors of President and Vice President when to take place. 10. Names of all the electors to be on one ballot, Ac. 11. Selectmen to preside. — List of votes to be certified. 12. Time andmannerof transmitting the votes. 13. All duties of town officers in elec- tion of governor, Ac, to be observed in the election of electors. — Penalties. 1. For the purpose of electing representatives in the twenty eighth Congress of the United States, and in each subsequent Congress, until otherwise provided by law, the Commonwealth shall be divided into eleven districts, each of which shall elect one representative, being an inhabi- 420 TOWN OFFICEK. tant of tte same district, in the manner now provided by law. Slat. 1852, c. 143. 2. For tte cities and towns comprising the different congressional districts. See Stat, li 62, c. 143. 3. The selectmen of the several towns shall, in the man- ner directed by law for holding elections therein, cause the inhabitants of said towns, duly qualified to vote for repre- sentatives in the general court, to assemble on the Tuesday next after the first Monday in November, to give in their votes for representatives in congress ; and at such meetings, the selectmen shall preside, and shall, in open town meet- ing, receive, sort, and count the votes, and shall form a list of the names of the persons voted for, with the number of votes for each person, written in words at length, against his name ; and the town clerk shall make a record thereof. B. S. c. 6, § 3. 4. The selectmen shall, in such meetings, malce public declaration of the perso:^ voted for, and of the number of votes given for each ; and shall in open town meeting, certify and seal up the said lists, and shall express, on the outside thereof, the district in which the said votes were given, and transmit the same, within three days after the election, to the sheriff of the county ; and the said sheriff shall transmit the same to the office of the secretary of the Commonwealth, within seven days thereafter ; or the said selectmen may themselves transmit the same to the said ,ofRce within ten days after the election ; an9, in case of a vacancy in the office of sheriff in any county, the select- men of the several towns therein shall return such lists to the secretary's office, within the said term of ten days. 11. § 4. 5. In all elections heSreafter holden for the choice of representatives in the Congress of the United States, the person receiving the highest number of _ votes shall be de- clared elected ; and the governor shall forthwith transmit ELECTION &C. or EEPEESENTATIVES, &C. 121 to such person a certificate of sucli clioice, signed by tlie governor and countersigned by tbe secretary. Stat. 1854, c. 70. 6. In case two or more persons, in any congressional district, shall have an equal and the highest number of votes, no person shall be deemed to be elected ; and another election shall be • ordered, as provided in the sixth chap- ter of the Revised Statutes, lb. § 2. 7. In case of no choice in a congressional district, the governor shall cause precepts to issue to the selectmen of the several towns, within such district, directing them to cause the qualified electors of their respective towns, to as- semble on the day appointed in such precept, to give their votes for a representative in congress ; and the said precept shall he accompanied with a list of all the persons voted for in such district, who shall have received as many as fifty votes according to the next preceding return, and shall show the number of votes for each of such persons ; and the same proceedings shall be had thereon, and the same returns made in all respects, as before directed ; and the like proceedings shall be repeated, as often as occasion may require. Jb. § 6. 8. When any vacancy shall happen in the representation of this Commonwealth in congress, the governor shall cause precepts to issue, for a new election in the congres- sional district, where such vacancy exists ; and the like proceedings in all respects shall be thereon had, from time to time, as are provided for the election of representatives. I'j. § 7. 9. The selectmen of the several towns shall, in the man- ner prescribed by law for notifying town meetings, cause the inhabitants of their respective towns, qualified to vote for representatives in the general court, to assemble on the Tuesday next after the first Monday of November of the year when the election of president and ■^'ice president is 11 ^ 122 TOWN orriCEB. to be made, and give in their votes for the whole number of electors to which this commonwealth may be then enti- tled, lb. § 14. Siat. 1848, c. 35. 10. The names of all the electors to be so chosen, shall be written on each ballot ; and each ballot shall contain the name of at least one inhabitant of each congressional district into which the Commonwealth shall be then divi- ded ; and against the name of each person, on every such ballot, shall he designated the congressional district to which he belongs. 75. § 15. 1 1 . The selectmen shall preside at all meetings held for the choice of electors aforesaid, and shall in open town meeting receive, sort, count and declare the votes given in ; and the same shall be recorded by the town clerks, respectively, and exact lists thereof shall be made and certified by the selectmen and clerk. Ih. § 16. 12. The mayor and aldermen of the several cities, and selectmen of the several towns in the Commonwealth, shall within three days next after the day of any election of electors of president and vice president of the United ' States, held by virtue of the laws of this Commonwealth, or of the United States, deliver, or cause to be delivered the lists of votes therefor, sealed up, to the sheriff of the county in which said election is held, and the sheriff shall within four days after receiving said lists, transmit the same to the office of the secretary of the Commonwealth, or the said mayor and aldermen or the selectmen may, and when the office of sheriff is vacant, he or they shall themselves transmit the said lists to the said office within seven days aftet the election, and all votes not so trans- mitted shall be rejected. Stat. 1844, c. 167, § 1. 13. All laws in force, in relation to the duties of town officers and voters, in the election of governor, counsellors, senators and representatives of this Commonwealth, shall, as far as the same may be applicable, apply, and be in FENCE VIEWEBS AND lEKCES. 123 force, in regard to the meetings and elections to be held, and the returns to be made, under the provisions of this chapter, respecting the choice of electors of president and vice president of the United States ; and the like penalties shall be incurred for the violation thereof. li. S. c. 6, §24. FENCE VIEWERS AND FENCES. 1. Fence viewers, how chosen and 4^iialifiecL 2. Penalty P-r neglect of duty, 3. Fees of fence viewers. 4. ^VhaL is a legal fence. 5- Adjoining occupants shall main- tain partition fences equally. 6. Partition fences to be kept in good repair throughout the year, unless, 4c. 7. Proceedings when a party neg- lects, such fence, "* 19. When a water fence is necessary, how made. 20. What is not a water fence. 21. When lands have been occupied without partition fences, a division may be made. 22. Same subject. 23. When one party lays open en- closed lands, the other may purchase a right in partition fence. 24. When unenclosed lands are after- wards enclosed, ic, the party benefit- ed shall pay, Ac. 25. The liability attaches immedi- ately, 26. Same subject. 27. Fence viewers, whence taken, when partition fences are on town lines. 28. Fences to be maintained conform- ably to agreement of parties or assign- ment of fence viewers, by owners, their heirs, and assigns. 29. But one party may lay his lands common, by giving notice. 30. A party may be bound by pre- scription to maintain fence. Ac, 31. The statutes respecting fences, do not affect contracts or rights between parties, exieting independently of the statutes. 33. Where a party may sustain tres- pass against the owner of adjoining landsw 33. Apportionment of fence around general fields. 34. Recwd of suuh ajiportionment to be made, and how. 35. Proprietors who do not improve, not obliged to maintain fence. 36. Expense of apportioning said fence, how borne. 37. Proceedings when any part of fence assigned is deficient. 38. Party neglecting to repair, liable to double damages. 39. Liability to repair, in case of sud- den destruction, &c,. of fences. 1. Fence viewers' are to be chosen at tlie annual meet- ing, in such mode as the meeting shall determine, and are 124 TOWN OFFICEE. to be sworn to the faithful discharge of the duties of their office. E. S. c. lo, § 33 & 34. 2. Any fence viewer, duly chosen and sworn, who shall, when requested, unreasonably neglect to view any fence, or to perform any other duties required of him in this chapter, shall forfeit the sum of five dollars to the use of the town, and moreover be liable for all damages to the party injured. Ih. c. 19, § 17. 3. Each fence viewer shall be paid, by the person em- ploying him, at the rate of one dollar a day, for the time he shall be so employed ; and if said person shall neglect to pay the same, within thirty days after the service shall have been performed, each of the fence viewers may recover, in an action of the case, double the amount of such fees ; and each of them may be a witness for or against the other. Ih. § 18. 4. All fences, four feet high and in good repair, consist- ing of rails, timber, boards, or stone walls, and all brooks, rivers, ponds, creeks, ditches and hedges, or other things which shall be considered equivalent thereto, in the judg- ment of the fence viewers within whose jtuisdiotion the same shall lie, shall be deemed legal and sufficient fences. lb. § 1. 5. The respective occupants of lands enclosed with fen- ces, shall keep up and maintain partition fences, between their own and the next adjoining enclosures, in equal shares, so long as both parties continue to improve the same. lb. § 2. 6. All partition fences shall be kept in good repair throughout the year, unless the occvipants of the lands on both sides shall otherwise agree. lb. § 8. 7. In case any party shall neglect or refuse to repair or rebuild any partition fence, which, of right, he ought to maintain, the aggrieved party may complain to two or more fence viewers of such town, who, after due notice to each FENCE VIEWEBS AND FENCES. 125 party, shall proceed to survey tlie same, and if ttey shall determine that the fence is iasufficient, they shall signify the same, in writing, to the delinquent occupant of th^ land, and direct him to repair or rehuild the same, within such time as they shall judge reasonable, not exceeding fifteen days ; and if the fence shall not be repaired or re- built accordingly, it shall be lawful for the complainant to make or repair the deficient fence. lb. § 3. 8. When any deficient fence, built up or repaired by any complainant, as provided in the preceding section, shall be adjudged sufficient, by two or more of the fence viewers, and the value thereof, together with their fees, ascertained by a certificate under their hands, the complain- ant shall have a right to demand, either of the occupant or owner of the land, where the fence was deficient, double the sum so ascertained ; and in case of neglect or refusal to pay the sum so due, for one month after demand made, the complainant may recover the same, with interest at one per cent, a month, in an action for money laid out and expended. lb. § 4. 9. When a division fence was partly in one town and partly in another, and notice was given by fence viewers to one of the parties, of the deficiency of the fence, but without statjng in what town the portion of the fence ad- judged by them to be deficient was situated, or in what capacity they acted ; it was held that the notice was insut ficient, and that the plaintiflT could not recover according to the provisions of the preceding section. 15 Pick. 123. 10. An o^ccupant of land who is bound to maintain a fence between his own and an adjoining enclosure, may place half of a fence, of reasonable dimensions, on the land of an adjoining owner ; and he may cut half of a ditch, on the land of such owner, where a ditch is proper for a partition fence. 2 Met. 180. 11. An agreement between tenants, making a division 11* 126 TOWN OITICEB. of the fence, each one mutually undertaking to repair his part, will not authorize one tenant, who had made or re- paired the fence of the other, on his refusal, to recover of him double the expense, as in the case of an assignment by fence viewers pursuant to the statute ; but his remedy is on the agreement. 6 Mass. 90. 12. Before the appraisement provided for in the eighth section shall be made, notice should be given to the party whose fence has been repaired, of the time and place of the appraisement of such fence by the fence viewers ; and if such notice is not given, the action for damages cannot be maintained. 14 Pick. 276. 11 Met. 496. 13. When any controversy shall arise, about the rights of the respective occupants in partition fences, and their obligation to maintain the same, either party may apply to two or more fence viewers of the towns where the lands lie, who after due notice to each party, may in writing assign to each his share thereof, and direct the time within which each party shall erect or repair his share of the fence, in the manner before provided ; which assignment, being recorded in the town clerk's office, shall be binding upon the parties, and upon all the succeeding occupants of the lands ; and they shall be obliged always thereafter to maintain their respective parts of said fence. R. S. c. 19, §5. 14. In case any party shall refuse or neglect to erect and maintain the part of any fence assigned to ^him by the fence viewers, the same may be erected and maintained by any aggrieved party, in the manner before provided ; and he shall be entitled to double the value thereof, ascertained in the manner aforesaid, and to be recovered in like man- ner. Ih. § 6. 12 Met. 195. 15. When, in any controversy that shall arise between adjoining occupants, as to their respective rights in any partition fence, it shall appear to the fence viewers, that TENCE VIEWEKS AND FENCES. 127 either of tlie occupants had, before any complaint made to them, voluntarily erected the whole fence, or more than his just share of the same, or otherwise become proprietor thereof, the other occupant shall pay, for so much as may be assigned to him to repair or maintain, the value thereof, to be ascertained and recovered in the manner provided in this chapter. lb. § 7. 16. When lands of different persons, which are required to be fenced, are bounded up6n or divided from each other, by any river, brook, pond or creek, which, of itself, in the judgment of the fence viewers, is not a sufficient fence, and it is in their opinion impracticable, without unreason- able expense, for the partition fence to be made in such waters, in the place where the true boundary line is, if, in such case, the occupant of the land on one side shall re- fuse or neglect to join with the occupant of the land on the other side, in making a partition fence, on the one side or the other, or shall disagree respecting the same, then two or more fence viewers of the town or towns wherein such lands lie, on application to them made, shall forthwith view such river, brook, pond or creek. 76. § 9. 17. If the fence viewers shall determine the same not to answer the purpose of a sufficient fence on the true bound- ary line, they shall, after giving notice to the parties to be present, determine how, or on which side thereof, the fence shall be set up and maintained, or whether partly on the one side and partly on the other side, as to them shall appear just, and shall reduce such their determination to writing. Ih. 18. If either of the parties shall refuse or neglect to make and maintain his part of the fence, according to the determination of the fence viewers, the same may be made and maintained, as is before provided in this chapter, and the delinquent party shall be subject to the same costs and charges to be recovered in like manner. Ih. 128 TOWN omcEE. 19. When a water fence, or fence running into the water, is necessary to be made, the same shall he done in equal shares, unless otherwise agreed by the parties ; and, in case either party shall refuse or neglect to make or main- tain the share to him belonging, similar, proceedings shall be had, as in other cases of the like kind, respecting other fences before mentioned. Ih. § 14. 20. A partition fence on land that is covered, a part of the year, with the waters of an artificial mill pond, but is used and occupied as pasture or mowing land, is not a water fence within the meaning of the last four sections. 11 Met. 496. 21. W^s^ ^"^-y lands, belonging to two persons in sever- alty, shall have been occupied in common, without a par- tition fence between them, and one of the occupants shall be desirous to occupy his part in severalty, and the other occupant shall refuse or neglect, on demand, to divide the line where the fence ought to be built, or to build a suffi- cient fence on his part of the line, when divided, the party desiring it may have the same divided and assigned, by two or more fence viewers of the same town, in the man- ner provided in this chapter ; and the fence viewers may, in writing, assign a reasonable time, having regard to the season of the year, for making the fence. lb. § 10. 22. If the occupant complained of shall not make his part of the fence, within the time so assigned, the other party may, after having made up his own part of the fence, make up the part of the other, and recover double the ex- pense thereof, together with the fees of the fence viewers^ in the manner provided in this chapter, lb. 23. When one party shall cease to improve his land, or shall lay open his enclosure, he shall not take away any part of the partition fence belonging to him, and adjoining to the next enclosure, provided the owner or occupant thereof will allow and pay therefor so miuk cis two or more FENCE VIEWEES .VXD FENCES. 129 fence viewers shall, in WTiting, determine to be the reason- ■ able value of such partition fence. lb. §11. 24. Whenever anj- land, which has lain unenclosed, shall afterwards be enclosed, or shall be used for depasturing, the occupant or owner thereof shall pay, for one half of each partition fence, standing upon the line between the same land and the land of the enclosures of any other oc- cupant or owner, the value thereof, to be ascertained, in writing, (in case they shall not agree between themselves,) by two or more of the fence viewers of the same town, wherein such partition fence stands. Ih. § 12. 25. The liability of the owner or occupant of land which has lain un'enclosed, on enclosing or depasturing the same to pay for the one half of a partition fence under the Rev. Stat. c. 19, § 12, attaches immediately upon such enclosing or depasturing. 1 (Msh. 11. 26. In case such occupant or owner, after the value has been so ascertained, shall neglect or refuse, for thirty days after demand made, to pay for one half of the partition fence, the proprietor of the fence may maintain, in form aforesaid, an action for such value, and the costs of ascer- taining the same. lb. 27. In all cases where the line, upon which a partition fence is to be made, or to be divided, is the boundary line of one or more tovms, or partly in one town and partly in another town, a fence viewer shall be taken from each town. lb. § 13. 28. In all cases where a division of fence, between the owners of improved lands, has been or shall be made, either by fence viewers, or by an agreement in writing between the parties, recorded in the office of the clerk of the town wherein such lands are situate, the several owners of such lands, and their heirs and assigns, forever, shall erect and support said fence, agreeably to such division. lb. § 15. 29. But if any person shall lay his lands cojnjnon, and 130 TOWN OFFICER. determine not to improve any part of the same, adjoining the fence that may have been divided as aforesaid, and shall give six months' notice of his determination to all the adjoining occupants of land, he shall not be required to keep or-support said fence, during the time that his lands shall so lie common and unimproved, lb. 30. Prescription to fence is allowed at common law, as resulting from an original grant or agreement, the evidence of which is lost by lapse of time. Prescription may be proved by ancient usage. 6 Mass. 97. A man may be bound by prescription to maintain a fence for the benefit of another, as well as himself. 5 Pich. 505. 31. The laws respecting fences do not interfere with contracts or rights existing independently of the statute. 2 Dane's Ah. 660. 5 Pick. 505. The object of the statute was to establish the rights and obligations of tenants of adjoining occupied closes, re- specting the making and maintaining of partition fences ; the rights of persons not having any interest in either of the adjoining closes, remain unaffected by the statute, and are to be defined and protected by the common law. 6 Mass. 98. 32. When a party is not bound, by prescription, agree- ment, or assignment of fence viewers, to ma;intain a fence between his land and that of an adjoining owner, he may maintain an action of trespass quare clausum f regit, against the adjoining, owner, when cattle escape into his land. The common law on this point is not altered by the statutes of this commonwealth. 4 Met. 589. 33. When several distinct lots or pieces of land are en- closed or fenced in one common field, or when all the pro- prietors of such lands shall agree to enclose them in that manner, the whole fence enclosing such general field shall, so far as it may be found convenient, be apportioned among TENCE VIEWERS AND EENCES. 131 the proprietors, according to tlie number of acres teld and cultivated, or otherwise used, by each one. E. S. c. 43, § 20, 28. 34. The part, to be maintained by each proprietor, shall be set out and assigned to him, by any two or more fence viewers, unless the proprietors shall agree on an apportion- ment of the fence among themselves ; and in all cases, the proportion of fence, so assigned to each proprietor, shall be recorded by the clerk in the books of the proprietors, and, where there is no such clerk, the said record shall be made by the clerk of the town in which such general field is situated. lb. § 28. 35. If any proprietor of land in such general field shall decline to cultivate his land, or to use it for pasturing, for the growth of wood, or otherwise, he shall not be required to maintain any part of the fence, nor to pay any tax or assessment on account of his land, so long as he shall de- cline to cultivate or use it as aforesaid. lb. § 29. 36. The expense of apportioning the fence, and also of makiiig and maintaining such part thereof as cannot be conveniently and justly assigned to any one proprietor, shall be borne by all the proprietors who are liable to be taxed, in proportion to their respective interests ; and the part assigned to each proprietor shall be made and main- tained by himself, so long as he shall use his part of the said general field of pasturing, planting, mowing or other- wise. 75. § 30. 37. If the part of the fence assigned to any proprietor shall become deficient, and if he shall not repair it within three days after notice of such deficienc)', given to him by a fence viewer of the town, it may be repaired by any other of the said proprietors ; and such repairs may be exam- ined by any two or more fence viewers, and if adjudged by them to be sufficient, they shall ascertain and determine the cost of the repairs, and make a statement thereof, and 132 TOWN OFFICEK. of the amount of tlieir fees, in writing, undor tlisir haads. lb. § 31. 38. The person making such repairs may demand, of the proprietor who was bound to make toe same, or of the tenant holding under him, double tho cost of the repairs and of the fees of the fence viewers, ascertained as afore- said ; and if the same is not paid within one month after notice and demand thereof, he may recover the same in an action on the case. lb. § 32. 39. If any part of the fence shall be suddenly blown down, or carried away by any flood or tempest, at a time when the crops of grain or grass in the field shall be there- by exposed to immediate destruction or injury, the proprie- tor, to whom that part of the fence was assigned, shall be bound to repair the same within twenty four hours after notice thereof given to him by a fence viewer ; and if he shall fail so to do, the fence may be repaired by any other proprietor, and such proprietor may recover double the cost of the repairs and fees, in the s-ams manner as is pro- vided in the preceding section, lb. § 33. FIELD DRIVERS, AND IMPOUNDING AND DIS. TRAINING CATTLE, 1. Field Drivers, how chosen and qualified. 2. Duty of field drivers to lake up cattle. 3. Fees of field drivers and pound keepers to be paid by owners. 4. Pound keepers to provide for beasts. 0. Fees of pound keepora. 6. Field drivers can impound cattle going at large on Sunday. 7. Turnpike road is a highway within the meaning of the statute. 5. Fees of field drivers. 9. Towns to maintain pounds. 10. Penalty on towns for neglecting to maintain pounds. 11. Pound keepers to be appointed. 12. Damages may be recovered against owners for injury done by 13. Same subject. 14. The owners of a close not obliged to fence except, &c. 15. Public cannot turn cattle upon highway to graze. 16. Beasts, distrained for doing dam- age, to be impounded- 17. Person distrtiining to state his demand. 18. Field drivers in certain cases need not leave memorandum. 19. Others neglecting it become tres- passer ab initio. 20. Beasts, not to be delivered, until all costs and charges are paid. 21. Notice to be given to the owner or keeper. 22. Person commencing action against field driver within twenty four hours after tbey are impounded waives the required notice. FIELD DEIVEaS, &C. 133 28. Notice need not state the hour of the day -when they were impounded. It is no objection to the notice that the field driver's name is signed by another person if it is done at his request. Notice to the owner that the cattle were at large, on the pubUc highway, is prima facia evidence that they were so., 24. Actual notice by the owner of the impounding of his cattle, is not equiva- lent to the required written notice. 25. TVhere owner cannot object to want of notice. 26. Notices in certain cases to be posted up. 27. Notices in certain cases to be published. 23. The sum due to the owner how to be determined. 29. Same subject 30. If not paid, the beasts to be sold. 31. Sale, made less than twenty four hours after appraisement, is void. 32. Proceeds of sale, how disposed of. 33. Beasts escaped or rescued may ba retaketi. 34. Penalty for rescuing beasts dis- trained. 3d. The legality of a distress to bo tried by an action of replevin. 1. Field drivers are to be ctosen at tlie annual meeting in such, mode as the meeting shall determine, and are to be sworn to the faithful discharge of the duties of their <)ffice. R, S.c. 15, § 33 & 34. 2. Every field driver, within his town, shall take up, at any time, any swine, sh^ep, borses, asses, mules, goats or neat cattle, going at large in the public highways, or town ways, on common and unimproved lands, and not under the care of a keeper, and shall forthwith impound them in the town pound, and, for any such cattle or beasts, so going ■at large on the Lord's day, the field driver or any other inhabitant of the town may recover, by an action of debt, for eaeb beast, the same amount of fees, which the field driver is entitled to receive for the like beasts, when dis- trained and impoimded. lb. c. 19, § 22. 3. The pound keeper shall not deliver to the owner any beasts so impounded, until the owner shall pay him his fees and the expense of keeping the beasts, and also the fees due to the field drive*, which latter, when received, lie shall pay to the field driver. lb. c. 113, § 3. 5- OusL 265. 4. The pound keeper shall furnish any beasts, impound- ed by any field driver, with suitable food and water, so. long as they are detained in his custody. lb. § 1. 5. The pound keeper shall be entitled to four cents per head for all animals impounded, but if more than ten sheep > 12 . 13i4 TOWN OPFICTEK. are taken up at tlie same time, the fees for all above that number shall be two cents per head. Ih. § 2. 6. A field driver is authorized to impound cattle so going at large on Sunday, the action of debt to which the owner is subjected being only a cumulative remedy. 2S Pich. 251. 7. A turnpike road is a highway within the meaning of the law restraining cattle. 4 Pieh. 258-. 12 Met. 198. 8. The field driver shall be entitled to fifty cents per head for all horses, asses, mules and neat cattle, and ten cents per head for all sheep, goats and swine, so distrained by him ; but if more that ten sheep are taken up at the same time, the fees for all above that number shall be only five cents per head. B. jS. c. 113, § 2. 9. Each town shall, at its own expense, and in such places therein as the inhabitants shall direct, maintain one or more sufiicient pounds, in which swine, sheep, horses, asses, mules, goats and neat cattle may be restrained and kept. Ih.c. 19, § 19. 10. Every town that shall, for the space of three months, neglect to maintain a sufiicient pounds shall forfeit the sum of fifty dollars, to the use of the commonwealth. Stat. 1848, § 272. 1 1 . Each town shall annually appoint a suitable person, to be the keeper of each pound therein, and in such mode as the town meeting shall determine. Ih. § 21. 12. When any person is injured in his land, by sheep, swine, horses, asses, mules, goats or neat cattle, he may recover his damages in an action of trespass against the owner of the beasts, or by distraining the beasts doing the damage, and proceeding therewith as hereinafter directed. lb. § 4. 18 Pich. 422. 13. If the beasts shall have been lawfully on the ad- joining lands, and shall have escaped therefrom in conse- quence of the neglect of the person who has suffered the PIEIB DRIVEES, &C. 185 idamage, to maintain Ms part of the division fence, tKe owner of the beasts shall not be liable for such damage. lb. 14. The owner of a close is not obliged to fence but against the escape of cattle lawfully in the adjoining ground ; and if all his fence be insufficient, yet if the cattle do not escape into his close -through the insufficient fence, but are turned in or escape through a deficient fence of an intermediate close not belonging to him, he may lawfully distrain the cattle doing damage. 6 Mass. 90. 1-5. The public have no rights in a hi^way but a right to pass and repass thereon. They -cannot therefore turn their cattle thereon, for the piu-pose of grazing. And if cattle on the highway for the purpose of grazing escape into the adjoining land, the owner of the land may main- tain trespass, or distrain, although the land was unfenced. 16 Mass. 33. The owner of the land, however, takes the hazard of cattle lawfully passing the road, running upon his land, and casually and " snatchingly," again-st the will of the driver, devouring his crops. 16 Mass. 33, 1% Pick. 422, 16. The beasts so distrained for doing damage shall be impounded either in the town pound, or in some suitable place, under the immediate care and inspection of the per- son who distrained them, and he shall furnish them with suitable foQd;and water, so long as they remain impounded, R. S. e. 118, % 5. 17. If the beasts are impounded, in the town pound, the distrainer shall leave with the pound keeper a memo- randum in writing, under his hand, stating the cause of impounding, and the sum that he demands from the owner, for the damage done by the beasts, and also for the daily charges of feeding them ; and if they are impounded in any other place, he shall give a like memorandum to the owner of the beasts, if demanded by him. 7i. § 6. 18.. A field driver who impounds beasts for going at 136 TOWK OFFICEK. large on a public higtway is not bound by Rev. Stat, c, 113, § 6 to leave with the pound keeper a memorandum, stating the cause of tbe impounding, and the sum that he demands from the owner. 12 Met. 198. 19. One taking up beasts doing damage on his land and delivering them to the pound keeper as cattle taken doing damage, becomes a trespasser ab initio by failing to leave with the pound keeper the memorandum required by law. 1 3 Met. 407. 20. The pound keeper, when the beasts are in his cus- tody, shall not deliver them to the owner, until the owner shall pay him his fees, together with the sum so demand- ed by the distrainer, for the damages and charges aforesaid, and the expense of advertising the beasts if they are ad- vertised, and all other legal costs and expenses. lb. § 7. 21. When beasts are impounded, the person impound- ing, shall within twenty-four hours thereafter give notice in writing, to the owner or the person having the care of them, if known, and living within six miles from the place of impounding, which notice shall be delivered to the party, or left at his place of abode, and shall contain a descrip- tion of the beasts, and a statement of the tinje, place and cause of impounding. 22. When the owner of cattle that are impounded by a field driver for going at large contrary to law commences an action of replevin against the field driver within twenty- four hours after they are impounded, he waives the notice which the Rev. Stat. c. 113, § 8, require the field driver to give him, and cannot rely in support of his action on the want of such notice. 12 Met. 118. 23. The notice which a person who impounds beasts is required by Rev. Stat. c. 113, § 8 to give to the owner of them, within twenty-four hours, need not state the hour of the day when they were impounded. It is no objection to the notice required to be given by FIELD DB.IVBBS, &C. 137 a field driver to the owner of impounded cattle that the field driver's name is signed hy another person if it be done at the -field driver's request. A notice given by a field driver, to the owner of cattle that they are impounded for going at large on the public highway, is prima facie evidence that they were so at large and puts on the owner the burden of proving the contrary. 12 Met. 198. 24. Actual knowledge by the owner of beasts impound- ed, of the impounding thereof, is not equivalent to the written notice required by the Rev. Stat. c. 113, § 8. 7 Oush. 355. 25. If the owner of cattle replevy them within twenty- four hours after they have been impounded, he cannot af- terwards object that no notice of such impounding was given him in conformity to the preceding section. 23 Pick. 251. 26. If there is no person entitled to notice according to the provisions of the preceding section, the person im- pounding the beasts shall, within forty-eight hours there- after, cause to be posted in some public place in each of any two adjoining towns, if within four miles from the place where they were taken, a written notice, containing a description of the beasts, and a statement of the time, place and cause of impounding. 26. § 9. 27. If the value of the beasts shall exceed thirty dollars, and if no person shall appear to claim them, within seven days after the day of impounding, a like notice shall be published three weeks successively, in some public news- paper, if there is any published within twenty miles from the place of impounding, the first publication to be within fifteen days after the day of impounding. lb. 28. If the owner or keeper of the beasts shall be dissat- isfied with the claim of the person impounding them, he may have the amount for which he is liable ascertained and determined by two disinterested and discreet persons, 12* 138 TOWN OFFICEE. to be appointed and sworn for that purpose, by a justice of the peace, or by the town clerk ; and the sum so deter- mined by them shall be received, instead of the sum de- manded by the person who impounded the beasts, and they shall thereupon be delivered to the owner or keeper there- of, lb. § 10. 29. If the sum, for which the beasts are impounded and detained, shall not be paid within fourteen days after no- tice of the impounding shall have been given as before di- rected, or after the last publication of such notice in a newspaper, the person who impounded them shall apply to a justice of the peace, or to the town clerk, and obtain a warrant to two disinterested and discreet persons, to be appointed and sworn by the justice or town clerk, and the persons so appointed shall ascertain and determine the sum due from the owner or keeper of the beasts, for the damages, costs, and expenses, for which they are impound- ed and detained, including a reasonable compensation for their own services. lb. § 11. 30. If the sum so found to be due shall not be forthwith paid, the person who impounded the beasts, shall cause them to be sold by auction, in the town where they are impounded, first advertising the sale, by posting up a notice thereof, twenty-four hours beforehand, at some public place in the same town. lb. § 12. 31. Under the provisions contained in the two preced- ing sections, it was held that where a beast impounded by a field driver was sold twenty minutes before the expiration of twenty-four hours from the time when the appraisement was completed, the sale was invalid, and the field driver a trespasser, ah initio, although more than twenty-four hours had elapsed from the time of posting up the advertisement ; and that it was immaterial in such case, whether any ac- tual injury had been sustained by the owner of the beasts, FIEID BHITEB.S, &C. 139 in consequence of tMs neglect of duty on tte part of the field driver or not. 21 Pick. 55. 32. The proceeds of such sale, after paying all the said damages, costs and expenses, with the charges for adver- tising and selling the beasts, shall be deposited in the treasury of the town, for the use of the owner of the beasts, in case he shall substantiate his claim thereto within two years from the sale. R. S. c. 113, § 13. 33. If any beasts, that have been lawfully distrained, or impounded, shall escape or be rescued, the pound keeper, field driver, or other person who distrained them, may, at any time within seven days thereafter, retake the beasts, and hold and dispose thereof, as if no such escape or res- cue had taken 'place, lb. § 14. 34. If any person shall rescue any beasts, lawfully dis- trained or impounded, for any cause whatever, he shall be liable in an action on the case, to be brought by any per- son injured, to pay all damages which such person shall have sustained thereby, and all the fees and charges, that shall have been incurred before the rescue ; and he shall moreover forfeit a sum not less than five, nor more than twenty dollars, to be recovered by complaint, before a justice of the peace or police court. 7J. § 15. 5 Gush. 267. 35. The defendant in any action brought for rescuing beasts distrained or impounded, shall not be allowed to allege or give in evidence the insufficiency of the fences, or any other fact or circumstance, to show that the distress or impounding was illegal ; but if there is any such ground of objection to the proceeding, of which he is entitled to avail himself, he may have the advantage thereof, in an action of replevin. lb. § 16. 140 TOWN OmCEB. FIRE DEPAETMENT. I. ENGINEMEN. * 1. How appointed. S. Number to each engine. 3. Hook and ladder men, &e., tol>e appointed. 4. Selectmen to appoint enginemen to private engines. 5. If selectmen refuse, county com- missioners may appoint. 6. Enginemen to live near engines. 7. " may be removed_for negli- gence in discharge of duty. 8. Enginemen exempted from cer- tain duties. 9. "to meet in the month of May to choose officers and make bylaws. 10. Enginemen to meet monthly Ac • 11. " who have served a yeart to have allowance from their towns. 12. Commanding officers of Engines, Ac, to make out and certify lists of en- ginemen for assessors — assessors to ex- amine and certify listB to town treas- urer — treasurer to pay, — remedy if he ref\ises. 13. Penalty for refusing to make cer- tificate, or making a false one. 14. The three preceding sections not to apply, unless adopted by towns. 15. Penalty for iiijuring fire engines. 1. The selectmen of such towns, as are or may te pro- vided with, one or more fire engines, shall, if they judge it expedient, appoint a number of suitable persons, as provided in this chapter, for enginemen ; who shall con- tinue in said office during the pleasure of the selectmen. S. S. c. 18, § 9. 2. The public fire engines in the several towns shall be manned by the number of persons and in the manner here following : to each common fire engine, there shall be ap- pointed a number not exceeding thirty men ; and to each hydraulion, or suction fire engine, a number not exceeding forty-five men ; and whenever said suction engines shall be suffered to go out of repair, and be used as common engines only, the said number of forty-five men shall be reduced to the number of thirty ; but this provision shall not affect the right, now existing in any city or town, to have a greater number of enginemen appointed, than is herein prescribed, lb. § 10. 3. The selectmen may, in their discretion, select from the enginemen, any number for each engine in their respec- tive towns, whose duty it shall be,, under the direction of the firewards, to attend fires with axes, fire-hooks, fire-sails and ladders, and to do such farther duty, as the said select- PIKE BEPAKTMENT. 141 men shall firom time to time prescribe ; and they shall be entitled to all the exemptions and privileges contained in this chapter. Ih. § 11. 4. Whenever the proprietors of any engine shall apply to the selectmen of a town, in which the said engine is owned, setting forth that they are desirous that the same should be employed for the benefit of the town, the select- men may appoint enginemen in the same manner, with the same privileges, and subject to the same regulations, as in the case of engines belonging to the town ; and in case the said proprietors shall not agree upon the place in which such engine shall be kept, such place shall he determined by the selectmen. lb. § 14. 5. If the selectmen, when applied to as provided in the preceding section, shall refuse or delay, for the space of fourteen days, to appoint enginemen for any such engine, the said proprietors may apply therefor in writing to the county commissioners of their county ; giving notice in writing to said selectmen, seven days at least before the sitting of said commissioners, that the aforesaid select- meijr may appear and show cause, if any they have, why said enginemen should not be appointed ; and if sufficient cause should not be shown by said selectmen, the said commissioners may appoint such a number of enginemen, as is directed in this chapter, for each public engine. rb. § 15. 6. The enginemen appointed as provided in the two pre- ceding sections, shall, if such can he obtained, be persons who live at or near the place where the engine is kept ; and said enginemen shall enjoy all the privileges and ex- emptions, to .whieh other enginemen are, or may hereafter be by law entitled. lb. § 16. 7. If any engineman shall, in the opinion of the select- men, be negligent in the duties required of him, the select- men shall, upon sufficient evidence thereof, discharge him, 142 TO'WN OFTICEE. and appoint another engineman in his stead. Ih. § 18. See Firewards, 6. 8. "When any member of a volunteer company shall be afterwards appointed an engineman, or member of the fire department, it shall not vacate his 'enlistment, but, during its continuance, shall exempt him from duty. R. S. c. 12, § 2. Upon ceasing to be an engineman, the liability of a member of a volunteer company to do his duty in such company revives, if his term of enlistment has not expired, nor is this liability affected by his enlisting vsrhile so ex- empted in another volunteer company, and receiving a non- commissioned officer's warrant therein. 3 Pich. 226. If one, while an engineman, enlists into a volunteer company, he waives his right of exemption from duty. 14 Mass. 37. All members of the fire department in the city of Bos- ton, shall be exempted from serving as jurors; and all en- ginemen and members of the fire departments in other towns shall be exempted by their respective towns, by vote at any legal town meeting. R. S. c. 95, § 3. Enginemen are also exempted from serving as constables. R. S. c. 18, § 17. 9. The enginemen of each engine shall meet in the month of May annually ; and at such meeting, shall choose a foreman, or director, and a clerk of the said engine, and establish such ri;iies and regulations, respecting their duty as enginemen, as shall be approved by the selectmen, and shall not be repugnant to the laws of the Commonwealth ; and they shall annex penalties thereto, not exceeding ten dollars, winch may be recovered by the clerk of said en- ginemen. Ih. § 12, 10. The respective companies of enginemen, nominated and appointed as aforesaid, shall meet together once a month, and oftener, if necessary, for the purpose of exam» FIKE DEPARTMENT. 143 ining the state of the engine to which they belong, and the appendages of the same, and to see that the said engine is in good repair, and ready for use ; and the said enginemen shall, by night smd by day, under the direction of the fiie- wards, use their best endeavors to extinguish, without delay, any fire that may happen in the same town or the vicinity thereof, lb. § 13. 11. All persons duly appointed enginemen for any fire engine, and all persons duly appointed members of the fire department established in any town, and who shall have done duty as such, for the space of one year preced- ing the first day of May, in each year, shall be entitled to receive from the treasurers of their respective towns, a sum eqxial to the poll tax to the state, county and towns (exclusive of highway taxes,) which may have been paid by such persons, or by their parents, masters, or guardians. lb. § 19. 12. The chief engineer, or the ofiicer who holds by law the first ofiice in any fire department, and the foreman or commanding officer of each fire engine, in any town, where no fire department is established by law, on or before the first day of May, in each year, shall make out and certify, to the assessors of their respective towns, a list of all per- sons in their department and companies respectively, who, through the year preceding, have performed all the duties therein required by law ; and the assessors shall, within ten days thereafter, examine said lists, and certify to the treasurers of their respective towns the amount to be paid to each person named therein; and the said treasurers shall, after deducting all taxes due from the persons so named, pay the same to them, or, if minors, to their parents, masters, or guardians ; and upon refusal of the treasurer to pay, the persons entitled may severally have an action for money had and received, to recover the same from such towns ; but no town shall be liable as aforesaid, unless the 144 TOWN orricEE. list above prescribed shall tave been duly certified, and retiu-ned to tbe assessors of such town, in the manner aforesaid. lb. § 20. 13. If any chief engineer or other officer, required to make a certificate to the assessors, as provided in the pre- ceding section, shall wilfully refuse to make such certifi- cate, he shall forfeit to the use of each person, whose name ought to have been so certified, a sum not exceeding five dollars ; and if such engineer or other officer shall make a false certificate in such case, he shall forfeit to the use of the town a sum not exceeding fifty dollars nor less than twenty dollars. lb. § 21. 14.' The provisions of the three preceding sections shall not take efiect in any town or city, until the same shall be adopted and approved by the town, at their annual town meeting, or by the city council of such city ; and when such approval shall be revoked by the town, at any annual meeting, or by the said city council, the said provisions shall cease to have effect in such town or city, respectively. Ih. § 22. 15. If any person shall wantonly or maliciously break or injure any fire engine, or.the apparatus thereto belonging, he shall be punished by a fine not exceeding five hundred dollars, or by imprisonment not exceeding two years, and be further ordered to recognize, with sufficient surety or sureties, for his good behavior, during such term of time as the court shall order. lb. § 23. FIEEWAItDS. 145 IL FIREWAKDS. 1. How to be chosen. 2. Penalty for not refusing or ac- cepting. 3. Firewards Bhall attend at fires. 4. Firewards, selectmen, Ac, may order buildings pulled down to prevent the spreading of the fire. 5. One 'director cannot lawfully ex- ercise the authority conferred upon fire- wards. 6. Firewards, &c., may command as- sistance. 7. " may give orders to en- ginemen and others, ^c. 8. Owners of buildings, when to be indemnified. 9. Embezzling property at fire, lar- ceny. 1 . The inlialDitaiits of each, town, at their annual meet- ing, may elect such a number of suitable persons, to he firewards therein, as shall be deemed necessary. ^. S. c. 18, §1. 2. Eaoli person, so elected shall have notice thereof, forth.- ■with, and shall, within three days after such notice, enter ■with the town clerk, his acceptance or refusal of the said office ; and if any person, after such notice, shall neglect to enter his acceptance or refusal as aforesaid, he shall, unless excused by the town, forfeit the sum of ten dollars, and the town may elect another in his place. lb. § 2. 3. When a fire shall break out in any town, it shall be the duty of the firewards immediately to repair to the place of such fire, and to carry with them a suitable staff or badge of their office. lb. § 3. 4. The firewards, who shall be present at the place in-, immediate danger from any fire, or any three of them, and,, where no firewards are appointed, the selectmen present, or in their absence, two or more of the civil officers pres- ent, or in their absence, two or more of the chief military officers of said town present, shall have power to dii-ect the pulling down, or demolishing of any such house or build- ing as they shall judge necessa,ry to he pulled down or de- molished, in order to prevent the further spreading of the fire, lb. § 4, 5. One director cannot lawfully exercise the authority conferred upon firewards by the Rev. Stat. ch. 18, § 3 & 4. 6 Oush. 269. 13 146 TOWN OFFICEE. 6. During the, continuance of any fire, the said fire-wards or other officers, respectively, may require assistance for extinguishing the same, and for removing any furniture, goods or merchandize, from any building on fire or in danger thereof ; and may appoint guards to secure the same, and may also require assistance, for pulling down, or demolishing any house or building, when they shall judge it necessary : and may suppress all tumults and dis- order at such fire. lb. § 5. 7. The said firewards, selectmen, or other officers, shall have authority to direct and appoint the stations and oper- ations of the enginemen, with their engines, and of all other persons, for the purpose of extinguishing the fire ; and if any person shall refuse or neglect to obey any such order, he shall forfeit, for each offence, a sum not exceed- ing ten dollars. Ih. § 6. '8. In case the pulling down or demolishing of any house or building, by direction of the firewards or other officers aforesaid, shall be the means of stopping the said fire ; or if the fire shall stop before it come to the same, then every owner of such house or building shall be entitled to recov- er a reasonable compensation therefor fcbm the town ; but when the building, so pulled down or demolished, shall be that in which the fire first began and broke out, the owner thereof shall receive no compensation therefor. II. § 7. 9. In any such case of fire, if any person shall purloin, embezzle, convey away, or conceal any furniture, goods or chattels, merchandize or efiects of the inhabitants, whose houses or buildings shall be on fire or endangered thereby, and shall not within two days, restore or give notice there- of to the owner, if known, or, if unknown, to one of the firewards or selectmen of the town, the person so ofiend- ing shall be deemed guilty of larceny, lb. § 8. INCOEPORATED PIRE DEPARTMENTS. 147 ni. INCORPORATED FIRE DEPARTMENTS. 1. Fire companies must be author- ized in writing by selectmen. 2. Penalty for joining imanthorized company. 3. Act subject to acceptance by towns. 4. Organization. 5. Fire departments may be estab- lished by selectmen. 6. Selectmen, to appoint engineers, and fill^juancies. 7. Or^raiaation of engineers. 8. Engineers to have powers of fire- wards — to ap,point enginemen, Ac. 9. Organization of enginemen, &ca their by-laws, &c. 10. Privileges, duties, &c, of engin- eers, Ac. H. Engineers to have care of engines, and other fire apparatus. 12. Engineers to make roles, as to carrying fire, lighted matches, &c., in strreets, &c. Other general powers, as to preventing, &c., fires. 13. Future acts establishing fire de- partments not to takfc efiect tSl accept- ed by towns. Provisional repeal. 1. No association, society or club, organized as firemen, shall be allowed in any town in tbis Commonwealth, ex- cept by tbe ^written permission of tbe selectmen of sucb towns. Stat,'\S55,ch. 161. 2. Any person joining, belonging to, or assembling witb any sucb association, society or club, existing without such permission, shall be deemed guilty of a misdemeanor, and shall be punished by fine not less than five dollars nor more than one hundred dollars, or by imprisonment in the house of correction for a term not exceeding three months. §2. 3. TMs act shall not be in force in any town until twenty days after the inhabitants thereof at a legal meet- ing, shall have adopted the same by vote. § 3, Stat. 1855, ck. 161. 4. Whenever any fire department shall hereafter be au- thorized to be established in any town, it shall be organ- ized in the manner herein set forth, and the members thereof shall be governed by the provisions, and subject to the liabilities, and may exercise the powers, hereinafter con- tained. Slat. 1839, ch. 188, § 1. 5. The selectmen of any to^ynin this Commonwealth are hereby authorized to establish a fire department in their respective towns in the manner and according to the pro- visions prescribed in an act to regulate fire departments, passed on the ninth day of April, in the year one thousand 148 TOWN orriCEE. eiglit hundred and thirty-nine ; and wten so established, the several members, and all the oificers and companies ap- pointed by them, and the several towns in which fire de- partments may be established under this act, and the in- habitants thereof, shall be subject to all the duties and lia- bilities, and be entitled to all the privileges and exempt- ions, specified in said act of eighteen hundred and thirty- nine, so far as the same relates to them respectively. Stat. 1855, ch. 128. 6. The selectmen of any such town shall, in the month of April annually, appoint for their fire department as many engineers as they may think expedient, not exceed- ing twelve, who shall hold their oifices for one year from and after the first day of May next succeeding, and until others are appointed in their stead. And the selectmen may fill all vacancies which may occur in said offices. 7 b. §2. 7. The selectmen, immediately after the said appoint- ment, shall, issue a notice to each of said engineers, to meet at such time and place as shall be designated in such notice ; at which meeting, the said engineers shall choose a chief engineer, a clerk, and such other officers as they may deem necessary for their complete organization. lb. §3- 8. The said engineers shall have and exercise the same powers, in relation to the extinguishment of fires, which firewards may by law have and exercise ; and they shall exercise all the powers, and perform all the duties, in rela- tion to tbe nomination and appointment of enginemen, which selectmen now by law are required to exercise and perform. And they may appoint such, number of men to the engines, hose, hook, ladder, and sail carriages, and to constitute fire companies for the securing of property, when endangered by fire, as they may think expedient ; provided, that the number of men appointed to ejich hy- INCOBPORATED FIEE DEPAB.TMENTS. 149 draulion, or suction fire engine, shall not exceed fifty ; to each common engine, thirty-:^e ; to each hose-cairiage, five ; to each hook and ladder and sail carriage, twenty- five ; and to each fire company, twenty-five men. Ih. § 4. 9. The said engiae, hose, hook and ladder, and sail carriage men, and said fire companies, may organize them- selves into distinct companies, may elect the necessary officers and establish such rules, regulations and by-laws, as may be ' approved by the board of engineers, and may annex penalties to the breach of the same, not exceeding ten dollars in any case ; and the same may be sued for and recovered by the clerk of the company, and shall be appropriated to the use of the company ; provided such rules, regulations and by-laws, shall not be repugnant to the constitution or laws of this Commonwealth. Ih. § 5. 10. The said engineers, and all persons appointed by them as herein provided, shall be subject to the same du- ties and liabilities, and be entitled to the same privileges and exemptions, as enginemen may by law be subjected and entitled to, when appointed by selectmen. Ih. § 6. 11. The board of engineers shall have the care and su- perintendence of the public engines, hose, fire-hooks, lad- der carriages, and ladders, in their respective towns, to- gether with the buildings, fixtures and appendages, thereto belonging, and all the piimps, reservoirs for water, and all apparatus owned by the towns and used for extinguishing fires, and shall cause the same to be kept in repair, and, when worn jout, to be replaced, and, from time to time, shall make such alterations therein, and additions thereto, as they shall deem necessary ; provided, such alterations, additions or repairs shall not in any one year, exceed the sum of one hundred dollars, unless the town shall have authorized a larger appropriation. Ih. § 7. 12. The board of engineers established according to the provisions of this chapter in any town, may, at any meet- 13* 150 ing tliereof, establish sucli rules and regulations as they may judge proper, to proMbit or regulate tie carrying of fire, fire-brands, lighted matches, or other ignited materials, openly in the streets or thoroughfares of such town, or such parts thereof as they may designate, or to prohibit any owner or ocupant of any building within such town, or such part thereof as the said board may designate, from erecting or maintaining any defective chimney, hearth, oven, stove or stove-pipe, fire-frame or other fixture, de- posite of ashes, or any mixture or other material, which may produce spontaneous combustion, or whatever else may give just cause of alarm, or be the means of kindling or spreading fires. And they may also, from -time to time, make and ordain rules, ordinances and regulations for their own government, and for the conduct of citizens pres- ent at any fire, and may annex penalties for the breach of any such rules, ordinances and regulations, not exceeding twenty dollars for any one breach thereof; and the SMne may be prosecuted for, and recovered, by the chief engin- eer, in his own name ; and all penalties, so recovered, shall be appropriated by the engineers to the improvement of the fire apparatus of the town ; provided, that such rules, ordinances and regulations, shall not be repugnant to the constitution or laws of this Commonwealth, and they shall not be binding until approved by the inhabitants of the town, in legal meeting held for the purpose, and published in the manner in which the town shall direct. lb. § 8. 13. No act hereafter passed, establishing a fire depart- ment in any town, shall take efiect, until it is accepted and approved by the inhabitants of such town, at a meeting held for the purpose. And when such fire department shall be established, subject to the duties and liabilities, and with the powers and privileges, and- governed by the provisions of this chapter, all laws inconsistent with the HEALTH, BOAKD OF. 151 provisions of tHs chapter, or with. the provisions of the act establishing such fire department, shall be repealed so far as they may apply to such town. /A. § 9. HEALTH, BOARD OF. 1. Every town except, &o., may choose a board of health. 2. Powers of city councils in rela- tion to public health. 3. How such powers may be exer- cised, ^^c. 4. Physician to the board of health. 5. Compensation of physician, &c. ^ 6. Eoard of health to make regula- tions as to nuisances, Ac. 7. " may make provi- sion as to infected articles. 8. " may make regu- lations as to interments, &c. 9. Cities and towns to provide burial grounds. 10. New burial grounds not to be es- tablished without permission in cities. 11. Nor in towns. 12. Penalty for unlawful burials. 13. Powers of boards of health. 14. Notice of penalties established by boards of health. 15. Appeal to C. C. P. fl-om order of boardB of health, closing tomb. Ac. 16. Deficiency or desecration of burial ground, how punished. 17. Burial groimd not to be closed without notice. 18. Act to take immediate effect, ap- peal in past cases. Tombs on private land. 19. Notice of their reg^olations to be published. 20. Board of health to examine into nuisances, &c. 21. Nuisances, how, and by whom to be removed, penalty for neglect. 22. Notice to remove nuisance, how served, &c. 23. Proceedings when order is not complied with, expenses of, by whom paid. 24. Board of health to remove the occupants of any cellar Ac, occupied as a dwelling house, which is unfit for the purpose, and a cause of nuisance or sick- ness either to the occupants or the public 25. Expenses of removing nuisance, how recovered. 26. When a party is convicted of a nuisance, &c. 27. Court of common pleas may issue Injunctions In cases of nuisance. I 28. How board of healths may make compulsory examination of premises, when refused, Ac. 29. Board may grant permits for the removal of infected articles or sick per- sons. 30. Board may remove inlfected per- sons to a separate house, &c. 31. If the infected persons cannot be removed, others may he, &c. 32. Persona may be stationed on bor- ders of other States, to examine, &c. 33. Any two justices may issue war- rants to remove sick persons. 34. One justice may issue warrant to secure infected articles. 35. Justices may take up houses, stores, Ac, for safe keeping of goods, Ac. 86- Officers, may break open houses, shops, Ac, and command aid. 37. Expenses to be paid by owners of goods, Ac. 38. Towns shall make compensation for houses, &c., and for services im- 39. Eemoval of prisoners attacked with disease in jail. 40. Eetum of removal to be made to the court — such removal shall not be an escape. 41. Towns may estabhsh a, quaran- tine. 42. Two or more towns may establish common quarantine ground. 43. Board of health may establish the quarantine of vessels. 44. Quarantine regulations to extend to all persons and all goods, &c. 45. " " to be bind- ing on all persons after public notice.- 46. Vessels to be ordered to quaran- tine ground. 47-. Penalty, if master, seamen, &c., refuse to make answer on oath, &c. 43. Quarantine expenses to be paid by person or owner. 49. Hospitals for the small pox, may be provided by towns. 50. " " to be under the orders of the board of health. 51. <• • ' not to be established within one hundred rods of houses in an adjoining town, unless, Aa 152 TOWN OFMCElt. 52. Physicians and others, in hospitals, to be subject Jo board of health. 53. Hospital shall be immediately provided, when ^the small pox breaks out unexpectedly. 54. When selectmen shaJl give notice by suitable signals. 55. Penalty on physicians and others, for violating regulations. 68. Every house holder to give notice of small pox in his family. 57. Penalty on physicians, for not giving notice of small pox, <&c. 58. Towns may provide for inocula^ tion of inhabitants, and defray expenses. 69. Fines &c., to whom to enure and how recovered. 1 . Every town respecting wHcli no provision is made by any special law, for ctoosing a board of health, may, at their annual meeting, or any other meeting legally warned for the purpose, choose a board of health, to con- sist of not less than three, nor more than nine persons ; or they may choose one person to be a health officer ; and, in case they shall not choose any board of health or health officer, the selectmen shall be the board of health. S. S. e. 21, § 1. 2. All the powers vested in, and the duties prescribed to, boards of health of towns, by the general laws, shall be vested in, and prescribed to, city councils of cities, in ease no special provision to the contrary is made in such laws themselves, or in the special laws applicable to any particular city. Stat. 1849, c. 211, § 1. 3. The powers and duties above named, may be exer- cised and carried into effect by city councils, in any man- ner which they may prescribe, or through the agency of "any persons to whom they may delegate the same, notwith- standing a personal exercise of the same, collectively or individually, is prescribed in the instance of towns, as above referred to. And city councils are hereby author- ized to constitute either branch, or any committee of their number, whether joint or separate, the board of health for all, or for particular purposes, within their own cities. Sifai. 1849,c. 211, § 2. 4. Every board^of health may appoint a physician to the board, who shall hold his office during their pleas- ure. 75. § 3. 5. The board of health shall establish the salary or HEALTH, BOAED OF. 153 other compensation of suoh physician, and shall regulate all fees and charges of every person, employed by them in the execution of the health laws and of their own regula- tions, lb. § 4. 6. The board of health shall make such regulations re- specting nuisances, sources of filth and causes of sickness, within their respective towns, and on board of any vessels in their harbors, as they shall judge necessary for the pub- lic health and safety ; and if any person shall violate any such regulation, he shall forfeit a sum not exceeding one hundred dollars. Ih. § 5. 7. The said board shall also make such regulations, as they may judge necessary for the public health and safety, respecting any articles which are capable of containing or conveying any infection or contagion, or of creating any sickness, when such articles shall be brought into or con- veyed from their town, or into or from any vessel ; and if any person shall violate any such regulations, he shall for- feit a sum not exceeding one hundred dollars. lb. § 6. 8. The said board shall also make all regulations, which they may judge necessary for the interment of the dead, and respecting burying grounds in their towns. lb. § 7. 9. Each city and town in the Commonwealth shall provide one or more suitable places for a burial ground, vrithin which the bodies of persons dying within their re- spective limits may be interred. St, 1855, c. 257, § 1. 10. No land other than that now used or appropriated in any city in this Commonwealth for the purpose of a burial ground, shall be used by any person or persons for the burial of the dead, unless permission is granted by the mayor and aldermen of such city. Stat. 1855, c. 257, §2. 11. No land other than that now used or appropriated in any town in this Commonwealth for the purpose of a 154 TOWN OFFICEK. burial ground, shall be used by any person or persons for the burial of the dead, unless permission is granted by the town. Stat. 1855, c. 257, § 3. 12. For every interment made in violation of sections two and three of this bill, the owner or owners of the land so used shall forfeit not less than twenty dollars, nor more than one hundred dollars, to be recovered by indict- ment for the use of the city or town in which interment is made ; but this section shall be of no effect until such city or town shall have complied with the sixth section of this act. Stat. 1855, c. 257, § 4. 13. Boards of health in any town or city in thi« Com- monwealth, shall have the power to establish such penal- ties for the violation of any regulations for the interment of the dead, and respecting burying grounds made by said boards under authority of the seventh section of the twenty-first chapter of the Revised Statutes, as they may think proper. ' And the board of health of any city or town is hereby authorized to forbid the use of tombs by undertakers as places of deposit for bodies' committed to them for burial, for the purpose of speculation : provided, however, that no one penalty for any one violation shall ex- ceed one hundred dollars. Stat. 1855, c. 257, § 5. 14. The same notice shall be given of any penalties established under authority of the foregoing section as is prescribed for giving notice of the regulations for the in- terment of the dead and respecting burial grounds, in the eighth section of the twenty-first chapter of the Revised Statutes ; and such notice of such penalties shall be deem- ed legal notice to all persons. St. 1855, c. 257, § 6. 15. Whenever the board of health in any town or city of this Commonwealth shall order any burial ground, tomb or tombs, or cemetery, to be closed which has heretofore . been established, approved or used, and forbid the same to be thereafter used for the purpose of inta-njent, any HEALTH, BOAED OF. 155 person or persons owning any tomb or tombs tberein, ag- grieved or injured by such order, may appeal from tbe decision or action of the said board of bealth. — notice of sueb appeal to be given to the said board of -healtb four- teen days previous to the entry of the appeal in court ; and said appeal must be entered, within six months from the date of the publishment of the order of said board of health, in the court of common pleas which may be hold- en in the county in which such^ burial ground, tomb or tombs, or cemetery, may be situated : provided, that the order of said board of health shall be obeyed until a legal decision on such appeal shall be obtained. Said appeal shall be tried in regular course and before a jury of said court ; and in case the jury shall find that any of the tombs so closed in said burial ground or cemetery were not a nuisance and were not injurious to the public health at the time said tombs, burial ground, or cemeterj', were so closed, then the judgment of the court shall be given to rescind the order of the board of health so far as it covers or relates to the tomb or tombs, cemeteries or burial grounds, which were found not to be a nuisance or injuri- ous to public health ; and the costs of such appeal shall in such cases be paid out of the treasury of the town or city in which such tomb or tombs, burial grounds or ceme- tery, lie, and execution therefor shall issue in favor of the appellant or appellants. But if the verdict of the jury shall sustain the order of the board of health, then an ex- ecution shall issue for double costs against 'the appellant or appellants, in favor of said board of health, but for the benefitof such town or city. Stat. 1856, c. 257, § 7. 16. Any person or persons who shall wrongfully deface or injure any public or private burial ground, or any walls, fences, monuments, trees, plants, walks, or other appurte- nances thereto, or throw any rubbish or offensive matter into, or commit any nuisance within any such burial jgg TOWN OFFICEE. ground, or in any wise desecrate or disfigure the same, shall be liable for ever)' sucb trespass to a penalty of not less than five, nor more than one hundred dollars, to be recovered by complaiut before any justice of peace or police court, within whose jurisdiction the offence may have been committed, or by indictment before any court competent to try the same ; and one half of said penalty shall go to the Commonwealth, and the other half to the county in which the offence may have been committed ; and it shall not be necessary to prove the title to the land in order to sustain the prosecution, but proof of use and occupancy for the purposes of a burial ground shall be sufficient. St. 1855, c. 257, § 8. 17. No burial ground, tomb or cemetery, shall be closed by order of the board of health of any city or town for a longer time than one month, except after notice given to at least one owner of each of the tombs intended to be closed, or, in case of burial grounds or cemeteries, to three proprietors, if there be so many, of the time and place of the hearing upon the question of closing the same ; and such notice shall also be published in two newspapers printed in the county, if there be so many, for two weeks preceding said hearing. St. 1865, c. 257, §9. 18. This act shall take effect from and after its passage : provided, however, that where any burial ground, cemetery or tomb, has been closed by the order of any board of health since January first, eighteen hundred and fifty-three, the appeal may be claimed as herein set forth any time within six months next after the passage of this act ; but nothing in the foregoing sections of this act shall prevent the inhabitants of any town in this Commonwealth from using or erecting a tomb upon their own land for the exclusive use of their own family. St. 1855, c. 257, § 10. 19. Notice shall be given, by the board of health, of all HEALTH, BOA.ED OF. 157 regulations made by them, by publisbing the same in some newspaper of their town, or, where there is no such news- paper, by posting them up in some public place of the town ; and such notice of said regulations shall be deemed legal notice to all persons. li. § 8. 20. The board of health shall examine into all nuisances, sources of filth, and causes of sickness, that may, in their opinion, be injurious to the health of the inhabitants within their town, or in any vessel within the harbor of such town, and the same shall destroy, remove or prevent, as the case may require. 75. § 9. 21. Whenever any nuisance, source of filth, or cause of sickness, shall be found on private property, within any city, the board of health, or health ofiicer, shall order the owner, or occupant thereof, to remove the same, at his own expense, within twenty-four hours, or such other time as they shall deem reasonable, after notice served, as pro- vided in the succeeding section ; and if the owner, or oc- cupant, shall neglect so to do, he shall forfeit a sum not exceeding twenty dollars, for every day during which he shall kno%vingly permit such nuisance or cause of sickness to remain after the time prescribed, as aforesaid, for the removal thereof. Stat. 1849, c. 21.1, § 3. 22. The order mentioned in the last section shall be- communicated by a written notice, served personally upon the owner or occupant, or their authorized agent, by any person competent to serve a notice in a civil suit ; or such notice may be left at the owner, occupant or agent's last and usual place of abode, if the same be known, and is mthin the State ; and if the owner or agent's residence is unknown, or without the State, the premises being unoc- cupied, then such notice may be served by posting up the same on the premises, and by advertising in one or more public newspapers, in such manner, and for such length 14 log TOWN OFFICE'Ri of time as tlie "board of health, or health officer, shall deeais expedient. Stat. 1849, c. 211, § 4. 23. If the owner or occupant shall not comply with the order above mentioned, the board of health may cause the said nuisance, source of filth, or cause of sickness, to be removed, and all expenses, incurred thereby, shall be paid by the said owner or occupant, or by such other person as shall have caused or permitted the same, if said owner or occupant, or such other person, shall have had actual no- tice from the board of health of the existence of said nui- sance, source of filth, or cause of sickness. Stat. 1849, c. 211, §6. 24. Whenever the board of health of any city or town shall be satisfied, upon due examination, that any cellar, room, tenement or building, occupied as a dwelling place, within such city or town, is unfit for that purpose, and a cause of nuisance or sickness, either to the occupants or to the public, such board of health may issue a notice in writ- ing, to such persons, or any of them, requiring them to remove from, or quit such cellar, room, tenement, or build- ing, within such time as the said board of health may deem reasonable. And if the person or persons so noti- fied, or any of them, shall neglect or refuse so to remove and quit, within the tirne mentioned, it shall be lawful for such board of health to remove them forcibly, and to close up such cellar, room, tenement, or building, and the sanae shall not be again occupied as a dwelling place, without the consent in writing, of the board of health, under a penalty of not less than ten, nor more than fifty dollars, to be recovered by Indictment of the owner or owners, if tliey shall have knowingly permitted the same to be so occu- pied. Stat. 1850, c. 108. 25. All expenses incurred by any town or city in the removal of nuisances, or for the preservation of the public health, and which are recoverable of any private HEALTH, BOARD OF. 159 person or corporation by virtue of any provisions of law, may be sued-for and recovered in action of debt, before any court, having jurisdiction of tbe amount damaged. Stat. 1849, c. 211, § 6. 26. When any person sball be convicted, on an indict- ment for a common nuisance, that may be injurious to the public health, the court may, in their discretion, order it to be removed or destroyed, at the expense of the defendant, under the direction of the board of health of the town, where the nuisance is found. Ih. § 12. 27. The court of common pleas, or any of the justices thereof, in term time or vacation, may, in all cases, either before or pending a prosecution for a common nuisance, affecting the public health, issue an injunction to stay or prevent the same, until the matter shall be decided by a jury or otherwise. Ih. § 13. 28. Whenever the board of health shall think it neces- sary, for the preservation of the lives or health of the in- habitants, to enter any land, building or vessel within their town, for the purpose of examining into, and destroying, removing or preventing any nuisance, source of filth, or cause of sickness, and shall be refused such entry, any member of the board may make complaint under oath, to any justice of the peace of this county, stating the facts of the case, so far as he has knowledge thereof, and such justice may thereupon issue a warrant, directed to the sher- iff or either of his deputies, or to any constable of such town, commanding them to take sufficient aid, and, being accompanied by any two or more members of said board of health, between the hours of sunrise and sunset, to repair to the place where such nuisance, source of filth, or -cause of sickness complained of, may be, and the same to destroy, remove or prevent, \inder the directions of such members of the board of health. 75. § 14. 29. The board of health may grant permits for the re- 160 TOWN OFFICEE. moval of any nuisance, infected article or sick person, witMn tte limits of their town, when they shall think it safe and proper so to do. 75. § 15. 30. When any person coming from abroad or residing in any town in this state, shall be infected, or shall lately before have been infected, with the plague or other sick- ness, dangerous to the public health,* the board of health of said town, shall make effectual provision, in the man- ner which they shall judge best, for the safety of the in- habitants, by removing such sick or infected person to a separate house or otherwise, and by providing nurses, and other assistance and necessaries ; which shall all be at the charge of the person himself, his parents, or master, if able, otherwise at the charge of the town to which he be- longs ; and in case such person is not an inhabitant of any town, then at the charge of the Commonwealth. Stat. 1837, c. 244, § 1. Stat. 1848, c. 119. 2 Gush. 62. 31. If the infected person cannot be removed, without danger to his health, the board of health shall make pro- vision for him, as directed in the preceding section, in the house in which he may be ; and in such case, they may cause the persons in the neighborhood to be removed, and may take such other measures as they shall judge necessa- ry, for the safety of the inhabitants. R. S. c. 21-, § 17. Stat. 1838, c. 158. 32. The board of health of any town near to, or border- ing upon, either of the neighboring states, may appoint, by writing under their hands, suitable persons to attend at any place, by which travelers may pass from infected places in other States ; and the persons so appointed, may exam- ine such passengers, as they may suspect of bringing with them any infection, which may be dangeraus to the public o By the statute of 1848, ch. 119, bo much of the statute of 1837, eh. 244, sec- tion 1 and 2, as relates to the small pox, is repealed. The provisions of statute 1837, ch. 44, thus modified, are embraced in eeotiona 30 and 53 of this title. HEALTH, BOARD OF. 161 health, and if need bej may restrain them from traveling, untU licensed thereto by the board of health of the town, to which such person may come ; and any passenger, com- ing from such infected place, who shall, without license as aforesaid, travel within this State, unless it be to return by the most direct way to the State from whence he came, af- ter he shall be cautioned to depart by the persons appoint- ed as aforesaid, shall forfeit a sum not exceeding one hundred dollars. H. S. c. 21, § 18. 33. Any two justices of the peace may, if need be, make out a warrant, directed to the sheriff of the county, or his deputy, or to any constable, requiring them, under the di- rection of the board of health, to remove any person affec- ted with contagious sickness, or to impress and take up convenient houses, lodging, njirses, attendants, and other necessaries, for the accommodation, safety and relief of the sick. 75. § 19. 34. Whenever, on the application of the board of health, it shall be made to appear to any justice of the peace, that there is just cause to suspect that any baggage, clothing or goods, of any kind, found within the town, are infected with the plague, or any other disease, which may be dan- gerous to the public health, such justice of the peace shall, by warrant, directed to the sheriff or his deputy, or to any constable, reqtiire him to impress so many men, as said justice shall judge necessary to secure such bag- gage, clothing or other goods, and to post said men as a guard over the house or place, where such baggage, clothing or other goods shall be lodged ; which guard shall take effectual care to prevent any persons removing or com- ing near to such baggage, clothing or other goods, until due enquiry shall be made into the circumstances thereof. Jb. § 20. 35. The said justice may also, by the same warrant, if it shall appear to him necessary, require the said officers, 14* 162 TOWN OPriCEE. under the direction of said board of health, to impress and take up convenient houses, or stores, for the safe keeping of such baggage, clothing or other goods ; aind the board of health may cause them to be removed to such houses or stores, to be otherwise detained, until they shall, in the opinion of the said board of health, be freed from in- fection. 76. §21. 36. The said officers, in the execution of such -warrant, shall, if need be, break open any house, shop, or other place mentioned in said warrant, where such baggage, clothing or other goods shall be ; and they may require such aid as shall be necessary to effect the execution of the warrant ; and all persons shall, at the command of either of the said officers, under a penalty not exceeding ten dollars, assist in the execution of the warrant. Ih. § 22. 37. The charges of securing such baggage, clothing or other goods, and of transporting and purifying the same, shall be paid by the owners thereof, at such rate anrd pri- ces as shall be determined by the board of health. Ih. §23. 38. Whenever the sheriff or other officers shall impress or take up any houses, stores, lodging, or other necessa- ries, or shall impress any men, as provided in this chapter, the several parties interested shall be entitled to a just compensation therefor, to be paid by the town in which such persons or property shall have been so impressed. lh.% 24. 39. Whenever any person, confined in any common jail, house of correction, or work house, shall be attacked with any disease, which, in the opinion of the physician of the board of health, or of such other physician as they may consult, shall be considered dangerous to the safety and health of the other prisoners, or of the inhabitants of the town, the board of health shall, by their order in writing, direct the removal of such person to some hospital, or oth- HEALTH, BOAKD 'OF. 163 er place of safety, there to be provided for and securely kept, so as to prevent tis escape until their further order ; and if such person shall recover from the disease, he shall be returned to the said prison or other place of confine- ment, lb. § 25. 40. If the person so removed, shall have been commit- ted by the order of any court, or under any judicial pro- cess, the order for his removal, or a copy thereof, attested by the presiding member of said board of health, shall- be returned by him, with the doings thereon, into the ofiice of the clerk of the'touit from which the process was issued for committing such prisoner ; and no prisoner, removed as aforesaid, shall be considered as having thereby committed an escape. Ih. % 26. 41. Any town may establish a quarantine ground in any suitable place, either within or without its own limits ; provided that if such place be without its limits, the assent of the town within whose limits it may be established, shall be obtained therefor, lb. •§ 27. 42. Any two or more towns may, at their joint expense, establish a quarantine ground for their common use, in any suitable place either within or without their limits ; provided that if such place shall be without their limits, they shall obtain the assent of the town withia whose limits such place may be. Ih. § 28. 43. The board of health in each seaport town may, from time to time, establish the quarantine, to be performed by all vessels arriving within the harbor of such town ; and may make such quarantine regulations as they shall judge necessary for the health and safety of the inhabitants. a. § 29. 44. The quarantine regulations so established, shall ex- tend to all persons, and all goods and efiects, arriving in such vessels, and to all persons who may visit or go on board of the same. lb. § 30. 164 TO"WN OFriCEE. 45. The quarantine regulations aforesaid, after notice thereof shall have been given, in the manner before pro- vided, shall be observed by all persons ; and any person who shall violate any such quarantine regulations, shall forfeit a sum not less than five dollars, nor more than five hundred dollars. Ih. § 31. 46. The board of health, in each seaport town, may, at all times, cause any vessel arriving in any such port, when such vessel or the cargo thereof shall, in their opinion, be foul or infected, so as to endanger the public health, to be removed to the quarantine ground, and to be thoroughly purified, at the expense of the owners, consignees, or per. sons in possession of the same ; and they may also cause all persons, arriving in or going on board of such infected vessel, or handling such infected cargo, to be removed to any hospital under the care of said board of health, there to remain under their orders. Ih. § 32. 47. If any master, seaman or passenger, belonging to any vessel, on board of which any infection may then be, or may have lately been, or suspected to have been, or which may have been at, or which may have come from, any port where any infectious distemper prevails, that may endanger the public health, shall refuse to make answer on oath, to such questions as may be asked him, relating to such infection or distemper, by the board of health of the town to which such vessel may come, (which oath any member of said board may administer,) such master, sea- man or passenger, so refusing, shall forfeit a sum not ex- ceeding two hundred dollars ; and, in case he be not able to pay said sum, he shall sufier six months imprisonment. lb. § 33. 48. All expenses incurred on account of any person, vessel or goods, under any quarantine regulations, shall be paid by such person, or the owner of such vessel or goods, respectively. lb. § 34. HEALTH, BOAKD OF. 165 49. The inhabitants of any town may establish, within the same town, and be constantly provided with, one or more hospitals for the reception of persons having the small pox, or other disease which may be dangerous to the public health. lb. § 35. 50. All such hospitals shall be subject to the orders and regulations of the board of health, or a committee of such town, appointed for that purpose. lb. § 36. 51. No such hospital shall be established within one hundred rods of any inhabited dwelling house, situated in any adjoining town, without the consent of such adjoining town. lb. § 37. 52. When any hospital shall be so established, the phy- sicians, the persons inoculated or sick therein, the nurses, attendants, and all persons who shall approach or come within the limits of the same, and all such furniture or other articles as shall be used or brought there, shall be subject to such regiilations as may be made by the board of health, or the committee appointed for that purpose. lb. § 39. 53. When any disease dangerous to the public health, shall break out in any town, the board of health thereof, shall immediately provide such hospital or place of recep- tion for the sick and infected, as they shall judge best for their accommodation and the safety of the inhabitants ; and such hospitals and places of reception, shall be subject to the regulations of the said board of health, in the same manner as herein before provided for established hospitals ; and the said board of health may cause such sick and in- fected persons to be removed to such hospitals or places of reception, unless the condition of the sick or infected per- son be such as not to admit of his removal without danger to his health ; in which case the house or place where such person shall remain shall be considered as an hospital, to every purpose aforesaid ; and all persons residing in, or in 166 TOWN OFFICES. any way concerned with the same, shall be subject to the regulations of the said board of health, as before provided. Stat. 1837, c. 244, § 2. Stat. 1848, c. 119. 54. When any disease dangerous to the public health, is found to exist in any town, the selectmen and board of health shall use all possible care to prevent the spreading of the infection, and to give public notice of infected places to travelers, by displaying red flags at proper distances, and by all other means which in their judgment shall be most effectual forthe common safety. R. S. c. 21, § 41. Stat. 1838, c. 158. 65. If any physician or other person, in any of the hos- pitals or places of reception before mentioned, or who shall attend, approach or be concerned with the same, shall vio- late any of the regulations lawfully made in relation there- to, either with respect to himself, or his or any other per- son's property, the person so offending shall, for each of- fence, forfeit a sum not less than ten nor more than one hundred dollars. Jb. 42. Stat. 1838, c. 158. 56. When any householder shall know that any person within his family is taken sick of the small pox, or any other disease dangerous to the public health, he shall im- mediately give notice thereof to the selectmen or board of health of the town in which he dwells ; and if he shall refuse or neglect to give such notice, he shall forfeit a sum not exceeding one hundred dollars. E. S. c. 21, § 43. Stat. 1838, c. 158. Stat. 1840, v. 39. 57. When any physician shall know that any person whom he is called to visit, is infected with the small pox, or any other disease dangerous to the public health, such physician shall immediately give notice thereof to the se- lectmen, or board of health of the town in which the dis- eased person may be ; and every physician, who shall re- fuse or neglect to give such notice, shall forfeit for each offence a sum not less than fifty nor more than one hun- dred dollars. lb. § 44. MEAStrKEMENT, &0. Or MEBCHANDIZE. 167 58. Eacli town may, at any meeting, make suitable pro- vision for the inoculation of the inhabitants with the cow pox, under the direction of the board of health of each town, or of a committee chosen for that purpose ; and they shall raise all necessary sums of money, to defray the ex- penses of such inoculation, in the same manner as other town charges are paid. lb. § 45. ,59. All fines and forfeitures incurred under the general laws, or the special acts, applicable to any town or city, or the ordinances, by-laws, and regulations of any town or city relating to health, shall enure to the use of such town or city, and may be recovered by complaint in the name of the treasurer, or any police officer, before any justice of the peace of the county, or police court of the city, in which the offence may have been committed, lb. § 7. St. 1854, c. 87. 5 Gush. 408. MEASUREMENT, INSPECTION &c., OF CERTAIN ARTICLES OF MERCHANDIZE. I. WOOD, BARK AND CHARCOAL. 1. Appointment of wood and bark measurers. 2. DimensionB of cord wood. 3. ,City governments may regulate inspection of bark. 4. Penalty for selling wood and bark not measured. 5. Bark need not be measured under certain circumstances.- 6. Fees of measurers. 7. Wood brought in by water bow measured. 8. Carters to have tickets, &c. 9. Dimensions Ac, of charcoal bas- kets, tubs or measures. 10. Dimensions of charcoal boxes, bins or cans. 11. Penalties for using illegal meas- ures. 12. Mayor and aldermen and select- men to appoint persons to seize illegal measures. 13. Forfeitures recoverable before justice of the peace or police court. 1. The selectmen of each town shall, in the month of March or April, annually, appoint as many measurers of fire-wood and bark, as_ the inhabitants shall at their annual meeting determine, unless the inhabitants themselves at such annual meeting shall choose them ; and every such measurer so appointed or chosen shall be sworn to the 168 Towx omcEE. faithful discharge of the duties of his office. R- S. c. 15, § 33, § 38. 2. All cord wood exposed to sale shall be either four feet, three feet, or two feet long, including half the carf ; and the wood heing well and close laid together, shall measure in quantity equal to a cord of eight feet in length, four feet in width, and four feet in height. Ji. S. c. 28, § 200. 3. The government of any City of this Commonwealth, which by a vote of its city council shall adopt this act, may establish ordinances and regulations, with suitable penalties, for the inspection, survey, admeasurement, and sale of bark, for fuel or manufacturing purposes, brought by land or by water into said city for sale, whether the same shall be exposed for sale in ranges or upon any cart or other vehicle ; and said city may also provide for the appointment of such surveyors, inspectors, and other offi- cers, as may be necessary to carry into effect said ordinan- ces, and may establish their fees of office ; provided, how- ever, that no one penalty for any one violation shall ex- ceed the sum of five dollars. Stat. 1854, c. 361. 4. If any fire-wood or bark, exposed to sale in any market, or upon any cart or other veliicle, shall be offered for sale before the same shall have been measured by a public measurer of wood and bark, and a ticket thereof signed by him delivered to the driver, certifying the quan- tity of wood which the load contains, the name of the driver, and the town in which he resides, the driver and ovnier of such wood or bark shall, for each load thereof, severally forfeit the sum of five dollars to the use of the county where such wood or bark shall be so offered for sale. lb. § 201. St. 1853, c. 4. . 5. Bark lying on the owner's land in the country need not be measured by a public measurer before it is offered for sale. 7 Cush. 371. MEASTTKEMBNI, &C. 01" MEaCHASTDIZE. 169 6. The measurers of wood and bark in any town shall be entitled to sucb fees for their services, as the selectmen of such town shall establish ; and the said fees shall, in each ease, be paid to the measurer, by the driver, and shall be repaid by the purchaser. lb. § 202. 7. All cord wood, brought by water into any town for sale, and landed, shall be measured by a measurer, sworn as aforesaid ; and for that purpose, the wood shall be, corded and piled by itself in , ranges, making up in height what shall be wanting in length, and being so measured, a ticket shall be given to the purchaser, who shall pay the stated fees fdr such service. Ih. § 203. 8. Each wharfinger, carter or driver, who shall convey any firewood or bark from any wharf or landing place in any town, shall be furnished by the owner or seller of such wood or bark, with a ticket certifying the quantity which the load contains, and the name of the driver ; and if any firewood or bark shall be conveyed as aforesaid, without such ticket accompanying the same, or if any driver shall refuse to produce and show such ticket on demand, to any measiu-er duly sworn as aforesaid, or to give his consent to have the same measured, or if such tickets shall certify a greater quantity of wood or bark than the load contains, in the opinion of the measurer aforesaid, after measuring the same, the driver and owner of such wood or bark shall for each load thereof, forfeit the sum of five dollars, to the use of the town where the ofienee shall be committed ; provided, nevertheless, that nothing contained in this chap- ter shall be construed to extend to any person who shall transport or cart, or cause to be transported or carted, fcom any wharf or landing place to his own dwelling house or store, any cord wood or bark which he shall have pur- chased on such wharf or landing place, or shall have land- ed thereon upon his own account. lb. § 204. 9. From and after the first day of July next, in the sale of 15 170 TOIVir OFFICEK. charcoal, all baskets, tubs, or measures, used in measuring' the same, except as hereinafter provided, shall be of a cylindrical form, and of the following dimensions in the inside thereof, to wit ; nineteen inches in diameter in every part thereof, and eighteen inches and one tenth of an inch in depth, measured from the highest part of the bottom thereof; which basket, tub, or measure shall be deemed to be of the capacity of two bushels, and shall be filled level full ; and every such basket, tub, or measure shall be sealed by a sealer of the town or city in which the per- son using the same shall usually reside or do business. Stat. 185a, e. 306, § 1. 10. It shall further be lawful, in the sale of charcoal, to measure the same in boxes, bins, or cans, of the follow- ing capacities, to wit ,; of five bushels, ten bushels, twenty bushels, thirty bushels, forty bushels, or fifty bushels, such boxes or bins being first lawfully sealed as aforesaid ; and five thousand one hundred and thirty-two cubic inches shall be deemed equal to two bushels, or the level basket or tub described in the preceding section. Stat. 1853, c. 306, § 2. 11. Every person who shall measure any charcoal sold or oflFered for sale in any basket, tub, box, bin, vessel, or measure, other or of less dimensions than herein described, for such measures respectively, or not sealed as herein pro- vided, unless by special agreement of the purchaser and seller, shall forfeit a sum not exceeding one dollar for each amount of two bushels of charcoal so measured or pre- tended to be measured, one half to the use of the city or town where the offence shall be committed, asd the other half to the complainant ; and such basket, tub, bin, vessel, or measure shall be destroyed. Stat. 1863, c. 305, § 3. 12. The mayor and aldermen of any city, or the select- men of any town, shall appoint one'or more suitable per- sons to seize and destroy all baskets, tubs, boxes, bins. A.NXHKACITE, BIT'tTMINO'O-S, OB MINEEAL GOAL. 171 vessels, or measures, used for measuring charcoal, not in accordance with the provisions of this act, and also to prosecute all persons who shall oifend against the said provisions. Stat. 1853, c. 305, § 4, 13. All forfeitures mentioned in the preceding sections of this act may he recovered before any justice of the peace or Police Court; and any interest which the town or city where such justice may reside, or in which such Police Court may he established, may have in or in respect to such penalty or forfeiture, shall not disqualify such jus- tice or Police Court from acting in oases arising under this act. Stat. 1853, c. 305, § 5, II. ANTHRACITE, BITUMINOUS, OR MINERAL COAL. 1. Coal to be sold by weight except &c., 2000 pounds to be a ton. 2. Weighing and certificate thereof. 3. Sellers oi coal not to be weighers. 4. Penalty. 5. Appointment, removal, and fees Of weighers. 1. All anthracite, bituminous or mineral coal, when sold in quantities of five hundred pounds or more, except by the cargo, shall be sold by weight, and two thousand pounds avoirdupois shall be the standard for the ton by which the same shall be weighed and sold. Stat. 1855, c. 138. 2. On or before the delivery of such coal so sold, it shall be the duty of the seller thereof to. cause the same to be weighed by a sworn weigher of the town or city in which the same shall be sold or delivered, and a certificate of the weight thereof, signed by the weigher, shall be de- livered to the buyer or his agent, at the time of the deliv- ery of such coal. Ih. 3. No person engaged in the business of selling coal, shall act as a weigher under the preceding section, lb. 4. Any person who shall offend against the provisions of either of the foregoing sections of this act, shalP, for 172 TOWN OFFICEB. each, and every offence, forfeit the sum of thirty dollar.-;, one-half thereof to the use of the complainant, and the other half to the use of the town or city where the offence shall be committed. lb. 5. The board of aldermen of the city of Boston, and the mayor and aldermen of any other city, and the select- men of any town in this Commonwealth, are hereby au- thorized and required to appoint one or more persons to be weighers of such coal, who shall be sworn to the faith- ful discharge of their duties, and shall be removable at the pleasure of the said board of aldermen, mayor and al- dermen, or selectmen, and shall be entitled to such fees for their services under this act as may be ordered by the board of aldermen, mayor and sddermen, or selectmen, appointing said weighers, which fees shall be paid by the seller. Jb. III. LUMBER AND TIMBER. 1. Towns to choose surveyors of lumber. 2. Their duty. 3. Quality and denominatloii of pine hoards and planks. 4. t' of pine joists. 5. " of spruce boards, &c: 6. " of ash, maple, &.c. 7. " of timber, except, &c. 8. " of mahogany and cedar. 9. Hewn and sawed timber, how sur- veyed, and sold. 10. Contentfi of boards, Ac, to be plainly marked. , 11. Boards, &c., to be sold according ti) marks. 12. Pees. 13. Penalty for fraud and for delay of surveyor. 14. Boards, &c., not Ui be sold or pur- chased unless surveyed, except, . § 13. See 8 Met. 513. 14. A husband is always liable to support his wife, if he is of ability to support her ; and the town furnishing relief to her m.ay immediately call upon him without re- sorting to the town where his settlement is, the remedy being cumulative. 14 Mass. 227.' 15. In an action for expenses incurred in relief of a per- son, it is competent to prove that if the person so relieved was not a pauper, he was in distress under such- circum- stances as to require immediate aid from the plaintiffs. 11 Pick. 459. 16. A recovery in such civil action shall bar the town, against which it shall he had, from disputing the settlement of such pauper with the town so recovering, in any future action brought for the support of such pauper. R. S. c. 46, § 14. 17. When any person shall be supported in any town other than that in which he has his settlement, the town that is liable for his support shall not, in any case, be re- quired to pay therefor more than at the rate of one dollar a week ; provided the town that is liable for the support of the pauper shall cause him to be removed, within thirty days from the time of receiving legal notice that such sup- port has been furnished. lb. § 15. 18. The provision in the foregoing section does not ap- ply to the case of the removal of a pauper after his decease, though before burial. 13 Met. 198. 19. The actual removal of a pauper by the town in 19* 222 TOWN OFFICEE. wMcli lie has a settlement within thirty days after legal notice of relief being furnished him by another town, is a condition precedent which must be strictly performed, in order to exempt the former town from a greater expense than one dollar per week. Where the pauper was so sick that he could not be removed with safety, it was held the town affording relief had a right to recover the amount of its expenses reasonably incurred. 7 Pick. 155. See also 4 Pich. 45. 20. In computing the thirty days notice provided for in the preceding section, the day on which notice is received is to be excluded. 8 Gush. 371. 21. A town is not liable to pay a charge for the trouble of overseers, in providing for a pauper in another town. 11 Mass. 327. 22. The overseers of the poor of each town shall also relieve, support, and employ all poor persons, residing or found in their towns, having no lawful settlements within this state, and in case of their decease, shall decently bury them ; the expense whereof may be recovered of their kin- dred, if they have any, chargeable by law for their support in the manner hereinbefore provided ; otherwise it shall be paid out of the treasury of the Commonwealth, as herein- after provided. R. S. c. 46, § 16. 23. Upon complaint of the said overseers of any town, any justice of the peace may, by warrant directed to, and to be executed by, any constable, or any other person therein designated, cause such pauper to be sent and con- -veyed, at the expense of the state, by land or water, to any other state, or to any place beyond sea, where he be- longs, if the justice thinks proper, and if he may be con- veniently removed ; but if he cannot be so removed, he may be sent to, and relieved and employed in, the house of correction or workhouse, at the public expense. Ih. § 17. 24. Every town shall be held to pay any expense, which. SrPPOST OP PATJPEKS. 223 shall \>e necessarily incurred, for the relief of a pauper, hy any person, who is not liable by law for his support, after notice and request made to the overseers of the said town, and until provision shall be made by them. lb. § 18. 25. In order to entitle a person to recover it is necessary that he should have given the notice required by statute, and it is not enough that the overseers had reasonable no- tice, by their having heard that the pauper had not been removed from the plaintiffs, but had remained with and been supported by him. 4 Gtish. 200. 26. Under the Statute of 1793, c. 59, § 13, towns were liable to their own inhabitants only ; under the revised stat- utes, they are liable to any person after due notice and re- quest. See 7 Met. 214. But towns are liable only for expenses incurred in the support of paupers found, or residing in the town. 8 Met. 492. 27. It is no defence to an action, brought by an inhab- itant against his town, that some individual is liable to support the pauper. 15 Mass. 289. 28. A verbal notice and request to the overseers of the poor to provide for a destitute person is sufficient. 15 Mass. 286. 29. The said overseers may, in all cases, send a writ- ten notification, stating the facts relating to any person actually become chargeable to their town, to one or more of the overseers of the place, where his settlement is sup- posed to be, and requesting them to remove him, which they may do by a written order, directed to any person therein designated who is hereby authorized to execute the same. B. S. c. 46, § 19. 30. If such removal is not effected by the last mention- ed overseers, within two months after receiving such no- tice, they shall, within said two months, send a written answer, stating therein their objections to the removal of 224 TOWN orriCEK. tke pauper, signed by one or more of them, to one or more of the overseers, requesting such removal ; and if they shall fail so to do, the overseers, who requested the removal of the pauper, may cause him to be removed to the said place of his supposed settlement, by a written or- der directed to any. person therein designated, who is here- by iuthorized to execute the same ; and the overseers of iiie town, to which the pauper is so sent, shall be obliged to receive and provide for him, and their town shall be U- abls for the expenses of his support and removal, to be re- cc-vared by an action by the town incurring the same, and shall be barred from contesting the question of settlement with the plaintiffs in such action. lb. % 20. 31. The notification and answer, mentioned in the two preceding sections, may be sent by mail ; and such notifi- cation or answer, directed to the overseers of the poor of the town, intended to be notified or answered, (the postage being paid and endorsed thereon,) shall be deenied a suf- ficient notice and answer, and shall be considered as de- livered to the overseers, to whom it is directed, at the time when it is received in the post office of the town, to which it is directed, and in which the said overseers reside. I b. §21. 32. The notification, if signed by one of the overseers and purporting to be by order of the whole, or if signed by a majority, will be sufficient. 6 Mass. 501. 8 Mass. 104. 4 Met. 433. 33'. Where an action has been commenced for' the re- covery of the expenses incurred,in the support of a pau- per, a second action cannot be maintained for the recovery of expenses subsequently incurred in the support of the same pauper, without a new notice, although the first ac- tion be pending when the second is commenced. 4 Pick. 358. 34. But an answer to an insufficient notice will be con- STTPPOET OP PAirPEES. , 225 sidered as a waiver of tlie deficiency, if no objection is taken on that account. 10 Pick. 22. 4 Met. 438. 12 Mass. 307. Ih. 262. 16 Mass. 102. 9 Met. 587. 35. The inhabitants of unincorporated places, who are or shall be required to assess taxes upon themselves to- wards the support of government, or for defraying the char- ges of any county, shall be vested with the like powers and be under the same obligations, so far as relates to the relief and support of poor persons falling into want or dis- tress, or who may be in need of immediate assistance with- in such places respectively, as towns may have or be sub- ject to ; and the like proceedings shall be had in such cases, by or against such places, as may be had by or against towns. Stat. 1837, c. 178, § 1. The assessors of such unincorporated places shall be l^eld to perform all the duties, and shall have all the pow- ers of overseers of the poor of towns, for the purpose of carrying into effect the foregoing provisions. Ih. § 2. 36. If any person shall bring into and leave any poor and indigent person in any town of this state, wherein such pauper is not lawfully settled, knowing him to be poor and indigent, and with intent to charge such town with his support, he shall forfeit a sum not exceeding one hundred dollars for any such offence. H. S. c. 46, § 24. 37. The penalty stated in the 33d section of title Sup- port of Paupers, for bringing into and leaving any poor and indigent person in any town of this State, wherein such pauper is not lawfully settled, knowing him to be poor and indigent, and with intent to charge such town with his suppport, shall be forfeited to the use of, and may be sued for and recovered by, the town intended to be so charged. Stat. 1849, c. 66. 38. If any master or other person, having charge of any vessel, shall therein bring into, and land, or sjjffer to be landed in, any place within this state, any person, before 226 TOWN OFFICEB,. that time convicted, in any other state or in any foreign country, of any infamous crime, or any for whicli he hath been sentenced for transportation, knowing of such con- viction, or having reason to suspect it, or any person of a notoriously dissolute, infamous and abandoned life and character, knowing him to be such, he shall, for every such offence, forfeit a sum not exceeding five hundred dollars. Ih. § 25. 39. In all actions and prosecutions founded on the pro- visions of the forty-sixth chapter of the revised statutes, included under this title " Support of Paupers," the over- seers of the poor of any town, or any person, by writing undei^ theu- hands appointed, shall and-may appear, prose- cute or defend the same to final judgment and execution, in behalf of such town. -ZS. § 26. 40. No male person over the age of twelve years, while of conipetent health to labor, shall be considered a state pauper, and entitled to support as such. Ih. § 30. 41. By statute 1852, chapter 275, provision was made for the erection of three State almshouses which pursuant to said act have been erected, one at Monson in the county of Hampden, one at Bridgewater in the county of Plym- outh, and one at Tewksbury in the county of Middlesex. Since the completion of these buildings, the several cities and towns in the Commonwealth . have a right to send to one of said institutions, to be maintained at the public expense, all paupers not having a settlement within the Commonwealth who are receiving support from, or who may fall into distress in said cities or towns ; that is to say, the cities and towns in the counties of Suffolk, Middlesex, or Essex may send such persons to the institution establish- as aforesaid in the county of Middlesex ; the cities and towns in the counties of Norfolk, Bristol, Plymouth, Barn- stable, Nantucket, or Dukes county, to the institution established as aforesaid in the county of Plymouth, and strppoET or PAUPERS. 227 the remaining cities and towns in the Commonwealth to the institution estahlished in the county of Hampden. Stat. 1852, c. 275, see. 3. 42. The counties which have heretofore sent State pau- pers to Monson shall hereafter be divided as follows, yiz : The counties of Worcester, Norfolk and Hampden shall send all State paupers that are not in the following sec- tions assigned to the State pauper school, to the State almshouse at Bridgewater, and the counties -of Hamp- shire, Franklin and Berkshire shall send all State pau- pers not assigned to said State pauper school, to the State alms house atTewksbury. Stat. 1855, c. 412, sec. 3. 43. The State almshouse situated in the town of Mon- son shall be, and is hereby, set apart for the purposes of a State pauper school ; and all the children in the other State almshouses, and all who shall be hereafter entitled to be received into said institutions under the provisions of the preceding section, between five and sixteen years of age, shall be removed to, and received into, said State pau- per school -at Monson : provided, however, that the super- intendents and inspectors of the respective State alms- houses shall not so remove any children as above whom they judge to be non compos mentis, but they shall, at their discretion, recommend orphan children who may be under five years of age, and in cases of unusual privation of privileges they may recommend children upwards of sixteen years of age, to be received, to enjoy the ad- vantages of said pauper school ; they shall likewise at their discretion retain any children of the above-described ages a reasonable length of time, to give their parents or other relatives an opportunity to make provision for their maintenance and education ; but they shall not be so de- tained for a longer period than two months, nor shall this provision apply to any one who is received the second time. Stat. 1855, c. 412. 228 TOWN OFFICEIli 44. The superintendent and officers of said institution stall be appointed as heretofore, special regard being bad to their moral and intellectual fitness for the training and ed- ucation of youth ; they shall be entitled to the compen- sation, and possess all the powers, heretofore enjoyed by the officers of the State almshouses, and they shall be sub- ject to all the duties heretofore imposed : provided, that such privileges, powers and duties do not conflict with any of the provisions of this act. A limited number of able-bodted females may be se- lected from the adult inmates of the other institutions to do the work in said school : provided, always, that care shall be taken to select those who are morally and intel- lectually most suitable to be associated with children, and that, when it can be done consistently, the mothers of pu- pils shall be selected. § 2. 45. No city or town shall receive any payment or allow- ance from the Commonwealth for the expense of support- ing any such pauper, incurred more than thirty days after the issuing of proclamation of the former arrangements. Stat.l'Ubi, C.275, § 4. • 46. The governor, with the advice and consent of the council, shall appoint a superintendent of each of said in- stitutions, whose salary shall be one thousand dollars per annum, and who shall receive no other compensation or perquisite for his services, excepting the right to reside with his family in the building under his care ; and it shall be his duty to receive all paupers sent as aforesaid with a proper certificate from the mayor of the city, or one of the overseers of the poor of the town, from which they may be so sent, and to provide for them under such rules and regulations as shall be established in the manner hereinafter provided. Stat. 1352, c. 275, § 6. 47. If any inmate of either of said institutions, above the age of sixteen years, shall leave the same without the SUPPOUT OP PAtrPEES. 229 consent of the inspectors thereof, and shall, within one year from the time of such leaving, he found within any city or town of the Commonwealth soliciting public or pri- vate charity, he shall, upon complaint and proof thereof before any Police Court or justice of the peace, be punished by confinement to hard labor in the house of correction for the county within which he shall be so found for a term not exceeding three months. Stat. 1852, c. 275, § 9. 48. Whenever either of the pauper establishments here- inbefore mentioned shall be full of inmates, the superin- tendant thereof shall report the fact to the inspectors of such establishment, who shall then, under the direction of the governor, distribute the paupers who cannot be receiv- ed into the establishment under their charge, among the other State pauper establishments, in such manner as, shall be most convenient. Stat. 1853, c. 352, § 3. 49. If in any city or town there shall be remaining any State paupers after the State institutions for their reception are full, such State paupers shall be placed in the district poorhouses, and such city or town shall receive payment for them from the treasury of the Commonwealth. Stat. 1853, c. 352, §4. 50. The board of commissioners of alien passengers shall have authority to allow the city of Boston to send sick State paupers to Rainsford Island, so far as there may be accommodation thereat not inconsistent with the provisions of section eleven of an act entitled " An Act in relation to Paupers having^ no Settlement in this Commonwealth," pas- sed in 1852. Stat. 1853, c. 352, §5. 51. No city or town shall have a right to send "to either of the State pauper establishments any lunatic, who, by reason of his insanity, would be dangerous to be at large. And if any inmate of such establishment shall become such » lunatic, the inspectors thereof may apply to two 20 230 TOWN orricER. justices of the peace, and of the quorum, for the county in which such institution is situated, who shall have the same power and authority in all respects, in regard to such application, and the commitment of such lunatic to either of the State lunatic hospitals, as judges of probate now have in regard to lunatics furiously mad ; provided, however, that it shall not be necessary to give notice of such application to the officers of any town or city ; and the expense of supporting such pauper in such hospital shall be charged to and paid by the Commonwealth. Stat. 1854, c. 437. 52. Whenever, by reason of the several State pauper establishments being full, any city or town shall be un- able to obtain admission for any State pauper, whom they may wish to send to the same, such city or town shall take charge of such pauper until notified by the superintendent, to whom application for such admission shall have been made, that such pauper can be received therein. And it shall be the duty of such superintendent to give such no- tice from time to time, by letters sent through the mail, to such towns and cities as have made application for the ad- mission of State paupers, as the means of receiving them shall arise ; having regard, in so doing, to the priority of . such applications. Stat. 1854, c. 437, § 2. 53. The governor, by and with the advice and consent of the council, shall appoint at least one member of each of the several boards of inspectors of the State pauper es- tablishments annually. Stat. 1854, c. 437, § 3. 54. Upon the complaint of the trustees of the several State lunatic hospitals, the county commissioners of the several counties, the inspectors of the several State pauper establishm.ents, or the overseers of the poor of any town or city, for the removal of any State pauper, under their charge, who is a lunatic, justices of the peace shall have the suppoBT or PAUPEUS. 231 same powers as are given by the seventeenth section'of the forty-sixth chapter of the Revised Statutes, in respect to the removal of paupers to any other State, or to any place beyond sea. Stat. 1854, c. 437, § 4. 55. Tliat each city and tovi'n shall be allowed for the expense of transporting each and everj^ State pauper to the State almshouses, five cents for each mile of the dis- tance from said city or town to said institution, to be paid from the treasury of the Commonwealth, upon the certifi- cate of the superintendent of the institution where such pauper shall be received. Stat.- 1855, c. 151. 56. Each city and town shall receive for the support of such State paupers as are unable to be removed to the State almshouses, by reason of sickness or other disability, such reasonable allowance as the inspectors of the institu- tion to which said paupers would be committed if under no disEtbility, shall deem to be just, to be paid from the treasury of the Commonwealth, upon the certificate of the inspectors of said institution ; provided, that no city or town shall have the benefit of this section, unless such city or town shall have duly notified the superintendent of said institution of the siomess or other disability of any pauper or paupers, and that it is the intention of said city or town to claim said allowance from the date of their said notice. Stat. 1855, c. 151, § 2. 57. Whenever the operation of the existing provisions of law in relation to poor and indigent persons may cause a separation of husband and wife by reason of one of the parties having a legal settlement in some town in the Commonwealth, the other not having a settlement in the Commonwealth, both parties may be supported at the town almshouse where such pauper has a legal settlement, and the expense of the person chargeable to the State, shall be paid by the State. Slat. 1855, c. 17?, 232 TOWN OFFICEE. 58. The account for such expenses shall be audited by the Inspectors of the State Almshouse |;o which such pau- per would otherwise belong, and shall be allowed by them, reference being had to the expense of supporting such per- son at the State Almshouse, if there committed. Stat. 18,55, c. 172, § 2. 59. The overseers of the poor of the several towns iu this Commonwealth, and the directors of the house of in- dustry in the city of Boston, shall, on or before the third Wednesday in November, of each year, make out and re- turn to the secretary of this Commonwealth, a statement of the paupers in said town, having referencer to the con- dition of the poor for the year ending on the first day of said month ; which return shall contain true and correct answers to the following enquiries, viz : What number of persons have been relieved or supported as paupers during the year in your town ? Of these how many have a legal settlement in your town, or elsewhere in this Common- wealth? How many State paupers does your town sup- port ? How many of these are foreigners ? How many of the foreigners are from England and Ireland ? Have you an almshouse ? What number of acres of land is at- tached to your almshouse ? What is the estimated value of your almshouse establishment ? What number of per. sous have been relieved in your almshouse during the year ? What is the average number supported in almshouse r What is the average weekly cost of supporting each pau- per in almshouse ? What number of persons in your alms- house who are unable to perform any kind or amount of labor ? What is the estimated value of all labor performed by paupers in your almshouse ? How many persons do you aid and support out of almshouse? What is the av- erage weekly cost of supporting paupers out of almshouse? How many does your town support or relieve who are in- StrpPOET OF PATJPEUS. 233 sane ? How many do you relieve or support wlio are idiots ? What proportion of your paupers, in your opinion, have been made dependent by intemperance in themselves, or those who ought to have been their supporters ? What number of your foreign paupers have come in to this Com- monwealth within one year ? What is the total net amount of expense of supporting or relieving paupers in your town for one year, including interest on your almshouse estab- lishment ? What amount does your town receive from treasury of this Commonwealth towards the support of State paupers ? What number of persons relieved or sup- ported as paupers duripg the year in your town, have be- come paupers by reason of insanity and idiocy ? What is the number of children in your town or city, under four- teen years of age, who are supported at the public charge, and what is the name, age, and sex of each child so sup- ported ? And the secretary of this Commonwealth, shall in the month of September annually, furnish the overseers of the, poor of each town with a blank form of return, which shall contain in substance the foregoing interroga» tories. Stat. 1837, c. 194, § 1. Stat. 1841, c. 116, § 1. Stat. 1844, c. 146. Stat. 1848, c. 247, 60. If the overseers of the poor of any town in this Commonwealth, or the directors of the house of industry in the city of Boston, shall refuse or neglect to make the return as aforesaid, they shall forfeit a sum not exceeding one hundred dollars, to be recovered by indictment in any court of competent jurisdiction. St. 1837, c. 194, § 3. 61. Upon the death of any pauper, who, at the time of his decease, shall be actually chargeable to any town with- in this Commonwealth, the overseers of the poor of such town may take into their possession all the personal prop- erty belonging to such pauper. And if no administration shall be taken upon the estate of such pauper within thir- 20* 234 TOWN OFFICEE. ty days after Ms decease, the said overseers may sell so much of the said property as may he necessary to repay the expenses incurred for such pauper. And if any part of such property shall be withheld from the said overseers, they shall have the same remedy for the recovery of such ■property, or the value thereof, that an administrator of the estate of the said pauper might have in like case. St. 1837, c. 54. 62. Whenever the overseers of the house of correction in any county shall certify that any sum is due the keeper thereof for the support and employment of any person who has not sufficient estate to pay the same, and such person shall have no parent, master, or kindred, liable by law to maintain him, the same may be demanded and re- covered of the town wherein he shall have his lawful set- tlement, and upon refusal or neglect to make payment, for the space of thirty days after the same shall have been de- manded, in writing, of any overseer of the poor of the town liable by law therefor, the said master or keeper, at any time within two years after his account shall have been so certified, and not afterwards, may commence and main- tain his action at law for the same, against the town so liable. S. S. c. 143, § 16. 63. When any convict, discharged from the state prison, or from any jail or house of correction, having no legal settlement in this Commonwealth known to the warden, keeper, or master thereof, shall be at the time of his dis- charge incompetent, by reason of age, infirmity, or disease, to support himself by labor, such warden, keeper, or mas- ter shall cause him to be removed to one of the State almshouses, provided for by the two hundred and seventy- fifth chapter of the acts passed in the year eighteen hun- dred and fifty- two ; the expense of which removal shall be certified to the auditor of the Commonwealth, upon whose SUPPOBT OP PATTPEBS. 235 approval thereof the same shall be paid out of the treas- ury. Stat. 1853, c. 388. 64. If, after such removal, it shall appear to the in- spectors of the almshouse, to which such discharged con- vict is removed, that he has a legal settlement in this Com- monwealth, the said inspectors shall cause him to be re- moved to the place of his legal settlement, the inhabitants of which place shall be liable to refund to the Common- wealth all the expenses incurred in behalf of such discharged convict, from the time of his discharge from the state prison, jail, or house of correction ; to be recovered by a suit, to be instituted by the attorney general, in the name of the Commonwealth, in any court competent to try the same. Stat. 1853, c. 388, § 2. 65. Any convict, who, at the legal expiration of the term of his imprisonment, is in a condition, from bodily infirmity or disease, to render his removal as aforesaid impracticable, shall be provided for and receive such treat- ment, in the state prison, jail, or house of correction, as the exigency of the case may require, until he is in a con- dition to be removed, according to the provisions of the first section of this act. Stat. 1853, c. 388, § 3. 66. Each city and town shall be allowed for transporting State paupers to the State almshouses, the regular fare of the public conveyances where such conveyances may be available, and in such cases as they cannot be so conveyed they shall be allowed the actual expense incurred and no more. And this provision shall apply to children as well as adults, so that in no case any city or town shall draw money from the State except to reimburse them for expen- ses actually incurred. Stat. 1855, c. 445, § 1. 67. In case there shall be any person or persons falling into distress in any city or town, who cannot be removed by reason of sickness or other disability La the opinion of 236 TOWN OFFICES. the officers in such city or town as may have such duty to perform, they shall notify the superintendent of the alms- house where such person or persons are entitled by law to be received, and he shall, if he deems it expedient, re- quest the attending physician of said almshouse to visit said person or persons, and if in his opinion said person or persons cannot be safely or properly removed, then the city or town providing for said pauper or paupers shall be entitled to a sum not exceeding three dollars per week for the board of said paupers, but if, in the opinion of said physician, said paupers may be safely and properly removed, he shall so direct, and they shall be removed to the said almshouse. Stat. 1855, c. 445, § 2. 68. The inspectors of the several State almshouses shall have the same powers respectively, in relation to the pau- pers who are now or may hereafter become inmates of the same, and their property, if they have any, or any prop- erty left by them in case of their decease, as are by law vested in towns and in the overseers of the poor in towns in reference to those paupers who are in any way sup- ported or relieved by towns ; and said inspectors in carry- ing into effect said powers, shall follow the same modes of proceeding as are jprescribed for towns and overseers of the poor in towns in like cases, and may institute and prosecute suits and other legal proceedings when necessary for the above purpose, in the same manner as towns and overseers of the poor in towns are authorized to do in like cases. Stat. 1855, c. 445, § 3. 69. If any pauper having a legal settlement in any city or town in the Commonwealth shall become an inmate of either of the State almshouses, such city or town shall be liable to the Commonwealth for the expense incurred for such pauper at such almshouse, in like manner as one town is liable to another town in like cases, and the same XtTNATIC PA.TJPEIIS. 237 measures shall be adopted by the inspectors of tie State almshouses respectively, in regard to notifying towns so liable, the removal of such pauper and the recovery from to'n-ns of expenses incurred for such pauper at the alms- house, as are prescribed for towns in like cases. Stat. 1855, c. 445, § 4. 70. The kindred of paupers who are liable by law to towns for expenses in supporting such paupers, shall, in like manner, be liable to the Commonwealth for any ex- pense incurred for such paupers at either of the State almshouses, and the inspectors of the State almshouses respectively are hereby authorized to adopt the same meas- ures and institute and prosecute the like legal proceedings for the recovery of such expenses of the kindred so liable, as are prescribed for towns in like cases. Stat. 1855, c. 445, § 5. IV. LUNATIC PAUPERS. 1. Commitment of Innatics flirionsly mad. 2. Judges- committing to certify the place of reBidence of the lunatic. 3. Selectmen tro be notified of the application for commitment. 4. Pauper lunatics may be committ- ed by overseers of the poor with con- sent of trustees — at what rates to be supported. 5. Expenses for supporting lunatics, by whom to be paid, and how recovered. 6. Eemedy of towns, if lunatic had a settlement in some other town in this state. 7. Provision for removing incurable lunatics from the hospital; terms and mode of removal. 8. Provisions for recommitment of those who are not comfortably sup- ported. 9. Trustees of Hospitals may remove patients to the towns of their residence, when they cease to be dangerous. 10. Fees of Judges of Probate on complaints for commitments of lunatics to the state lunatic hospital established. - H. Fees of Judge of Probate of Wor- cester for hearing applications for dis- charge from the hospital. 12. Lunatics may be removed to Jails or houses of correction when Hospital isflilL 13. Lunatics confined in jails &c., may be removed by order of the gov- ernor. 14- Sheriff to execute such order. 15. In such cases towns liable for their support. 16. Provision for persons insane but not furiously mad. 17. Towns liable for their support in certain cases. 1. The judges of probate in tlie several counties, except Suffolk, and in tliat county, the judge of the municipal court, may commit to the hospital any lunatic, who in their 238 TOWN OFrlCEE. opinion is so furiously mad, as to render it manifestly dan- gerous to tte peace and safety of the community, that he should be at large. S. S. c. 48, § 6. The judges of probate in the several counties of the Commonwealth shall have the same authority to commit lunatic Indians,^ resident within their respective counties, to the State Lunatic Hospital, as they now have in regard to other persons. Stat. 1852, c. 44. At any time when the Municipal Court of the city of Boston is not in session, the Judge of Probate in the county of Suffolk may take jurisdiction of lunatics furi- ously mad, in either of the towns of Chelsea, North Chel- sea, and Winthrop, in the county of Suifolk, and commit any such lunatic to the State Lunatic Hospital at Worces- ter, any thing in the sixth section of the forty-eighth chapter of the Revised Statutes to the contrary notwith- standing; provided, that no lunatic from either of said towns shall be committed to said hospital by said judge of probate, until after the selectmen of the town from which said lunatic is to be removed are notified, that they may be heard upon the subject. St. 1853, c. 93. In case of the absence, sickness, or death of the judge of probate of any county in this Commonwealth, except the county of Sufiblk, any justice of the supreme judicial court, or of the court of common pleas, may commit to the State Lunatic Hospital any lunatic furiously mad, in such county, in the same manner and upon the same pro- ceedings as are now provided by law for the commitment of lunatics to said hospital by judges of probate. Stat, 1839, c. 149, § 3. When any person, held in prison on a charge of having committed an indictable offence, shall not be indicted by the grand jury, by reason of insanity, or when any person having been indicted, shall be acquitted by the jury by LUNATIC PATTPESS. ^ 239 reason of insanity, if the discharge or going at large of such insane person shall be deemed manifestly dangerous to the peace and safety of the community, the court may order him to be committed to- the state lunatic hospital. R. S. c. 136, § 15. lb. c. 137, § 12. 2. In all cases the judges of probate and the judge of the municipal court, respectively, shall certify in what town the lunatic resided, at the time of his commitment, and the judges of the supreme judicial court, and the court of common pleas, respectively, shall certify in what town he resided at the time of the arrest, in pursuance of which he was held to answer before those courts ; and such cer- tificate shall for the purposes hereinafter stated, be conclu- sive evidence of his residence. 3. Any person, who shall apply for the commitment of any lunatic, under the above provisions, shall first give notice, in writing, to any one or more of the selectmen of the town, or to the mayor of the city, where such lunatic resides, of his intention to make such application ; and satisfactory evidence, that sueh notice has been given, shall be produced to the said judges, respectively, at the time of making such application. iJ. /S. c. 48, § 7. 4. Any lunatic, who is supported as a town pauper, may, with the consent of the trustees, be committed to the hospital, by the overseers of the poor of the town, and shall be kept for a sum, which shall not in any case exceed the actual expenses of his support ; and the trustees may also, in their discretion, receive into the hospital, for a less sum, any poor persons suffering under recent insanity, whether supported or not by any town or city. Ih. § 8. 5. The expenses of the hospital, for the support of all lunatics committed by any of the j udicial ofiicers mention- ed above, or by virtue of a proclamation of the governor, or by a resolve of the legislature, or by two justices of the 240 TOWK OPPICEE. peace and of tte quorum, shall be paid by tbe 'town ,iii wbicb said lunatics had their residence at the time of their com- mitment, unless in cases where other sufficient security, to the satisfaction of the trustees, shall have been taken for such support; and if any town or city shall neglect or re- fuse to pay whatever sum rflay be charged and due, accord- ing to the by-laws of the hospital, on account of the sup- port of any such patient at the hospital, or for the removal of any patient, whom the trustees are authorized bylaw to remove, for the space of thirty days after the same shall have been demanded, by the treasiirer, in writing, of the selectmen of the town, or of the mayor and aldermen of ^ the city liable therefor, the same may be recovered, for the use of the hospital, in an action to be brought in the name of the treasurer, against such delinquent town, in which action the declaration may be in a general indebitatus as- sumpsit, and judgment shall be rendered for such a sum as shall be found due, with interest from the time of the demand thereof made as aforesaid, i?. »§'. c. 48, § 9. *Si?. 1837, c. 228, § 7. If it shall be made to appear that the lunatic for whom payment is demanded, has no settlement within this Com- monwealth, the town of his residence shall not be liable for the expense incurred on his account. Stat. 1837, c. 288, § 7. 6. Every town, which shall p%y any expenses for the support or removal of any lunatic, under the provisions of the preceding section, shall have the like right and reme- dies, to recover such sums, with interest and costs, as if such expenses had been incurre.d in the ordinary support of the lunatic. B. S. c. 48, § 10. Whenever any lunatic or insane person shall be com- mitted to the State Lunatic Hospital, from any town where- in he has not a legal settlement and such town shall pay LUNATIC PAtrPEKS. 241 the expense of his support at said iospital, such town may recover from the town in which he has a legal settlement,, the full amount of all expenses so paid to said hospital. Stat. 1841, c. 77, 7. Either of the justices of the supreme judicial court, or of the court of common pleas, at any term held within and for the county of Worcester, or the judge of probate of said county, may on application in writing for the dis- charge from said hospital of any lunatic who shall have remained there a sufficient time to make it appear that he is incm-able, cause such lunatic to be delivered to the agents of any town in which he may have his legal settlement, or to the friends of such lunatic, when, in the opinion of either of saidjustices, orof said judgeof probate, it would not be to the injury of the person so confined, and when it shall be made to appear that such person would be com- fortably and safely provided for, by any parent, kindred, friend, master, or guardian, or by any town or city in which he may have a legal settlement. Stat. 1839, c. 149, § 1. 8. If at any time after the discharge of an incurable lu- natic, as above provided, it shall be made to appear, on complaint by any person under oath, to the judge of pro- bate for the county in which such lunatic has his legal set- tlement, or shall be placed, that he is not comfortably sup- ported, or that the public safety is endangered by him, it shall be the duty of said judge to order his recommitment to said hospital. lb. § 2. 9. The Trustees of the Hospital may remove any idiot or other patient to the town, where the judge or court com- mitting him shall certify that he resided, whenever, in the opinion of the trustees, he shall cease to be dangerous, within the intent of the law, and shall not be susceptible of mental improvement, by remedial treatment at the hos- pital ; provided, that such town, after reasonable notice, 21 r Shall keep a record book, record their votes, &c. and deliver It to their successors. 25. Who to prescribe form of regis- ters — duty of teachers in regard to them. 26. Compensation of Committees. 27. In cities and towns where the school committee is required by law to be elected in the months of February, Marcli ur April, term of office extended for certain purposes beyond the year. 28. The prudential school cimimittee duly chosen in March and authorized to contiact with teachers cannot inter- ibre with a teacher engaged by the gen- eral school committee of the preceding year for the entire winter term &c. 29. Duty of committees in relation to records of births. 3:). Committees to prosecute for breaches of certain provisions of law. 31. Statute of 1836, ch. 245, § 1, how construed—said statute and present act not to apply to children coming into state until after six months residence. 32. Penalty for violation of act. 33. Children to be sent to school twelve weeks in each year. . 34. Penalty for neglect to send. 35. School committee to inquire into cases of neglect and report. 36. What are suflBcient excuses for not sending. 37. Treasurer of town or city to pros- ecute. 38. Towns Ac. authorized to make by-laws relative to children not attend- ing or absenting themselves from school . 39. Persons to be appointed to make complaints of a breach of such by-laws. 40. Truant children Ac. may at dis- cretion of justice instead of being fined be committed to any institution of in- struction &c. 41. Children fined may in default of payment be committed to institution of instruction .tc, or if unable to pay may be discharged. 42. If not 80 discharged shall be dis- charged lite poor convicts. 43. Powers of justices Ac, in unfin- ished cases to continue under immedi- ate reappointment. 44. Jurisdiction of oflfeoces may be vested by city ordinance in Police Court. 45. Truant children Ac. instead of being fined may be committed to any institution of instruction Ac. for not more than two years. 46. Act to take efiect on acceptance by city council. 1. The several cities and towns in this Commpnwealth, by an ordinance of the city government in said cities, or by a vote of the qualified voters of said towns in legal town meeting, may annually require the school committee to appoint a superintendent of public schools, to have the care and supervision of said schools, under the direction and control of said school committee ; the salary of such super- intendent to be fixed as the city government of said cities, or the inhabitants of said towns, at a legal meeting shall direct ; and in every city and town in which such super- intendent shall be appointed the school committee shall receive no compensation unless otherwise provided for by the city governments of said cities, or by a vote of said town. Stat. 1854, c. 314. 2. Every city in this Commonwealth whose act of in- -SCHOOL COMMITTEE. 251 corporation has already provided, or shall hereafter pro- vide, for the choice of a superintendent of schools, shall he exempt from the operation of this act. Stat. 1854, c. 314, § 2. 3. The inhahitanta of every town shall, at their annual meeting, choose, by written ballots, a school committee, consisting of three, five, or seven persons, who shall have the general charge and superintendence, of all the public schools in such town. R. S. c. 23, § 10. 4. Whenever vacancies occur in the school committee of any town or city in this Commonwealth, or when, from any cause, any member or members are unable to act, the remaining member or members of said committee, together with the selectmen of said town, or the mayor and alder- men of said city, shall have power to fill vacancies in said committee; and the school return, signed by a majority of the committee thus constituted, shall be equally valid as if signed by a majority of the committee as originally chosen. Stat. 1851, c. 309. -5. Any town, containing more than four thousand in- habitants, may choose an additional number, not exceeding six, on such committee. Ih. § 12. 6. In any town, containing five hundred families, and in which a school shall be kept for the benefit of all the inhabitants, the school committee, chosen under the pre- ceding sections, shall perform all the like duties, in rela- tion to such school, the house where it shall be kept, and the supply of all things necessary therefor, which the pru- dential committee of a school district may perform in such district. /&. § 11. 7. The school committee shall select and contract with the teachers for the town and district schools ; provided, however, that the teachers for the town and district may be selected and contracted with by the prudential commit- tee as heretofore, whenever the town shall so determine. lb. § 2. 252 TOWN officeh. 8. The teactier of any public school shall be entitled to receive Ms or her wages on demand at the expiration of each quarter, and to receive the amount of vrages due upon the close of said teacher's term of service, or upon the close of any single term, whether said term be of a longer or shorter period than one quarter, or twelve school weeks. Stat. 1855, c. 126. 9. The power conferred on school committees by St. 1838, c. 105, § 2 to select and contract with the teachers for the town and district schools includes the power to fix the compensation to be paid them and to bind th'; town to pay the same. 4 Gush. 599. 10. The school committee shall require full and satis- factory evidence of the good moral character of all instruct- ors, who may be employed in the public schools in their town, and shall ascertain, by personal examination, their literary qualifications and capacity for the government of schools. B. S. c. 23, § 13. 11. All school teachers shall hereafter be examined in their knowledge of the elementary principles of physiology and hygiene, and their ability to give instructions in the same. Stat. 1850, c. 229, § 2. 12. Every instructor of a town or district school shall obtain, of the school committee of such town, a certificate in duplicate of his qualifications, before any payment is made to such instructor on account of his services. Ih. §14. 13. The duplicate certificate of the school committee of the qualifications of teachers, required by the fourteenth section of the twenty-third chapter of the Revised Stat- utes, to be furnished to the treasurer, shall hereafter be deposited with the selectmen of the several towns of the Commonwealth. jSifaJ. 1850, c. 115. 14. The school commitee of any town is authorized to dismiss from employment any teacher in such town, when- SCEOOL COMMITTEE. 253 erer the said committee may think proper, and from the time of such dismissal such teacher shall receive no further compensation for services rendered in that capacity. ■»S'lf. 1844, e. 32. 15. The school committee shall determine the number and qualifications of the scholars, to be admitted into the school, kept for the use of the whole town, as aforesaid, and visit such school, at least quarter yearly, for the pur- pose of making a careful examination thereof, and of ascer- taining that the scholars are properly supplied with books .; and they shall, at such examination, inquire into the regu- lations and discipline of the school, and the habits and proficiency of the scholars therein. £. S. c, 23, § 15. 16. Any child unlawfully excluded fi-om public school instruction in this Commonwealth, shall recover damages therefor in action on the case to be brought in the name of said child, by his guardian or next friend in any court of competent jurisdiction to try the same against the city or town by which such public school instruction is sup- ported. Stat. 1845, c. 214. 17. In determining the qualifications of scholars to be admitted into any public school or any district school in this Commonwealth, no distinction shall be made on ac- count of the race, color or religious opinions of the appli- cant or scholar. Stat. 1855, c. 266. 18. Any child who, on account of his race, color or re- ligoius opinions, shall be excluded from any public or - district school in this Commonwealth, for admission to which he may be otherwise qualified, shall recover dam- ages therefor in an action of tort, to be brought in the name of said child by his guardian or next friend, in any court of competent jurisdiction to try the same against the city or town by which such school is supported. Stat. 1855, c. 256, § 2. 19. In filing interrogatories for discovery in any such 22 254 TOWN OFFICEE. action, the plaintiff may examine any number of the sctool commitee, or any otter officer of tte defendant city or town, in the same manner as if lie were a party to the suit. Stat. 1855, e. 256, § 3. 20. Every pexson belonging to the school committee, under whose rules or directions any child shall be exclufel from such school, and every teacher of any such school shall on application by the parent or guardian of any sucb child, state ia writing the grounds and reasons of sucb exclusion. Stett. 1855, c. 256, § 4. 21. Th€ general school committee of the city of Bos- ton, have power under the constiiution and laws of thi* Commonwealth to make provisions for tlte instruction of colored children in separate schools, established exclusively for them, and to prohibit their attendance upon other schools-. 5' Gush. 19&. 22. The general school eoMEmittee of a city or town have power under the laws of this Commonwealth, in order to maintain the purity and discipline of the public schools, to exclude therefrom a child whom they deem to be of as licentious and immoral character, although such character is not manifested by amy acts of licentiousness or immor- ality within the school. 8 Cush. 160. 23. The school committee, or some one or more of them, shall, for the purposes aforesaid, visit each of the district schools in their town, on some day during the first or sec- ond week after the opening of such schools, respectively, and also on some day during the two weeks preceding the closing of the same ; and shall also, for the same pur- poses, visit all the schools kept by the town, onee a month, without giving previous notice thereof to the instructors. lb. § 16. 24. The school committee in each town shall be pro- vided with a record book, in which all votes, orders, and proceedings of the committee shall be duly recorded, and SCHOOL COMMITTEE. 255 said record shall be delivered over by the committees, at the expiration of the year, to their successors in office. Stat. 1838, c. 105, §3. 25. Instead of the school registers, in book form, now transmitted to school committees, the Secretary of the Board of Education is hereby required to transnut regis- ters in such form as the said board shall prescribe ; and no school teacher shall be entitled to receive pajrment for his or her services, until the register of his or her school, properly filled up and completed, shall be deposited with the school committee, or with such person as they may ■designate to receive it. Stat. 1849, c. 209. 26. The members of the school committees, except in *he city of Boston, shall be paid by their respective towns, one doUar each per day for the time they shall be actually employed in discharging the duties of their office, together with such additional compensation as the town may allow. lb. § 4. Stat. 1838, c. 105, § 4. 27. In every city and town in the Commonwealth, in ^which it is required by law that the school committee shall be elected in the month of February, March or AprU, the school committee of the year preceding such election, shall continue to hold their office, and to discharge the duties thereof, notwithstanding the election of successors, until ■the winter terras of the several schools shall have closed, and until the certificate, return, and report, as hereinafter provided, shall have been by them made and transmitted to the office of the Secretary of the Commonwealth ; pro- vided, however, that, in regard to the examination of teach- ers for the summer schools, the visitation of those schools, and all other duties, except the making and transmitting of the said documents, the term of office of the new com- mittee shall be held to commence immediately after their election to the same. Stat. 1846, c. 223, § 1. 28. The prudential school committee of a school die- •lot TOWIf OPFICEB. trict duly chosen ia March and authorized to contract with teachers, cannot interfere with a teacher engaged by the general school committee of the preceeding year under Stat. 1846, c. 223, § l,for the entire -winter term, and if they close against a teacher so engaged, the school house in which he is accustomed to keep bis school, such general school committee may forcibly break open the school house and reinstate the teacher. 8 Gitsh. 191. 29. The school committee of each city or town shall, annually in the month of May, ascertain from actual inquiry or otherwise, all the births which have happened within such city or town, during the year next p'eceding the first day of said May, together with the date of the birth, the place of birth, the name of the child, (if it have any,) the sex of the child, nanie and surname of one or both of the parents, occupation of the father, residence of the parents, and shall make an accurate return thereof to the clerk of such city or town, on or before the last day of said May ; and the said school committee, or other person authorized by them to malce such returns, shall be entitled to receive from the treasury of such city or town, five cents for each and every birth so rerturned. See St. 1844, § 1 & 2. 30. It is the duty of the school committee, to prosecute all breaches of the provisions of the following section. St. 1842, c. 60, § i. 31 . The meaning of the first section of the act passed oin the sixteenth day of April, in the year one thousand eight hundred and thirty-six, entitled, " an act to provide for the better instruction of youth employed in manufacturing establishments," is hereby declared to be, that no child, un- der the age of fifteen years, shall be employed in any man- ufacturing establishm.ent, unless such child shall have at- tended some public or private day-school, where instruc- tion is given by a teacher, qualified according to the first section of the twenty-third chapter of the Revised Stat- SCHOOL OOMMITDfiE. 26? "tites, at least one term of eleven weeks, of the twelve months next preceding the time of such employment, and for the same period during any and every twelve months in which such child shall be so employed ; but the provisions •of this act, and of the act above-named, shall not apply to any child who shall have removed into this Commonwealth from any othra: state or country, until such child shall have resided six months within this Commonwealth. St. 1849, •c. 220, § 1. 33. The owner, agent, or superintendent of any manu- facturing establishment, who shall employ any child in .such establishment, contrary to the provisions of this act, shall forfeit a sura not exceeding fifty dollars for each of- fence, to be recovered by indictment, to the use of common schools in the towns respectively, where said establish- ment may be situated. St. 1849, c. 220, § 3. 33. Every person who shall have any child under his control between the ages of eight and fourteen years, shall ■send such child to some public school within the town ot city in which he resides, during at least twelve weeks, if the public schools within such town or city shall be so long kept, in each and every year during which such child shall be under his control, six weeks of which shall be consecutive. St. 1832, c. 240, § 1. 34. Every person who shall violate the provisions of the first section of this act, shall forfeit to the use of such town or city, a sum not exceeding twenty dollars, to be recovered by complaint or indictment. St. 1852, c. 240, §2. 35. It shall be the duty of the school committee in the several towns or cities in this commonwealth, with the ex ception of the city of Boston, where the duty shall devolve upon the truant officers to inquire into all cases of viola- tion of the first section of this act, and to ascertain of the persons violating the same the reasons, if any, for such 22* 258 TOWN OFFiCEK. violation, and they shall report such cases, together witli such reasons, if any, to the treasurer of such town or city, in their annual report ; but they shall not report any cases such as are provided for by the fourth section of this act. St. 1852, c. 240, § 3. St. 1855, c. 309. 36. If, upon inquiry by the school committee, it shall appear, or if, upon the trial of any complaint or indictment under this act, it shall appear that such child has attended some school not in the to-wn or city in which he resides, for the time required by this act, or has been otherwise furnished ^vith the means of education for a like period of time, or has already acquired those branches of learning which are taught in common schools, or if it shall appear that his bodily or mental condition has been such as to prevent his attendance at school, or his acquisition of learning for such a period of time, or that the person hav- ing the control of such child is not able, by reason of pov- erty, to send such child to school, or to furnish him with the means of education, then such person shall be held not to have violated the provisions of this act. St. 1852, c, 240, § 4. 37. It shall be the duty of the treasurer of the town ov city to prosecute all violations of this act. aS'^. 1852, c. 240, § 5. 38. Each of the several cities and towns, in this Com- monwealth, is hereby authorized and empowered to make all needful provisions and arrangements concerning habit- ual truants, and children not attending school, without any regular and lawful occupation, growing up in ignorance, between the ages of six and fifteen years ; and, also, all such ordinances and by-laws, respecting such children, as shall be deemed most conducive to their welfare, and the good order of such city or town ; and there shall be an- nexed to such ordinances, suitable penalties, not exceed- ing, for any one breach, a fine of twenty dollars : provided. SCHOOL COMMITTEE. 259 that said ordinances and by-laws shall be approved by the court of common pleas for the county, and shall not be repugnant to the laws of the Commonwealth. Stat. 1850, c. 294. 39. The several cities and towns, availing themselves of the provisions of this act, shall appoint, at the annual meetings of said towns, or annually by the mayor and aldermen of said cities, three or more persons, who alone shall be authorized to make the complaints, in every case of violation of said ordinances or by-laws, to the justice of the peace, or other judicial officer, who, by said ordi- nances, shall have jurisdiction in the matter, which per- sons, thus appointed, shall alone have authority to carry into execution the judgments of said justices of the peace, or other judicial officer. Stat. 1850, c. 294, § 2. 40. Any minor between the ages of six and fifteen years, convicted under the provisions of an act entitled " an act concerning truant children and absentees from school," passed in the year one thousand eight hundred and fifty, of being an habitual truant, or of not attending school, or of being without any regular and lawful occupation, or growing up in ignorance, may, at the discretion of the justice of the peace or judicial officer having jurisdiction of the case, instead of the fine mentioned in the first sec- tion of said act, be committed to any such institution of instruction, house of reformation, or suitable situation, as may be provideH. for the purpose under the authority given in said first section, for such time as such justice or judi- cial officer may determine, not exceeding one year. Stat. 1852, c. 283. 41. Any minor convicted of either of said offences, and sentenced to pay a fine as provided in the first section of the act to which this is in addition, may, in default of pay- ment thereof, be committed to said institution of instruc- tion, house of reformation, or suitable situation provided 260 xotVn officSk. as aforesaid, or to the county jail, as provided in case of non-payment of otter fines. And upon proof that said minor is unable to pay said fine, and has no parent, guar- dian, or person chargeable with his support, able to pay the same, he may be discharged by said justice or judicial ofKcer, whenever he shall see fit. Stat. 1852, c. 283, § 2. 42. If any person so convicted be not discharged as aforesaid, he s(hall be discharged according to the provisions of the third section of the one hundred and forty-fifth chapter of the Revised Statutes. Stat. 1852, c. 283, § 3. 43. The powers of the justice of the peace or judicial officer, under this act and the act to which this is in addi- tion, in all unfinished cases shall continue under any re appointment to the same ofiice, provided there be no inter- val between the expiration and reappointment to said office. Stat. 1852, c. 283, § 4. 44. Any city in this Oommonwealth may, by ordinance, give jurisdiction of the ofiences arising under the several laws relating to truant children and absentees from school to the justices of the Police Court of such city. Stat. 1853, c. 343. 45. Any minor between the ages of six and sixteen years, convicted under the provisions of an act entitled "An Act concerning Truant Children and Absentees from School,'' passed in the year one thousand eight hundred and fifty, of being an habitual truant, or of not attending school, or of being without any regular and lawful occu- pation, or of growing up in ignorance, may, at the discre- tion of the justice of the peace or judicial ofiicer having jurisdiction of the case, instead of the fine mentioned in the first section of said act, be committed to any such institution of instruction, house of reformation, or suitable situation, as may be provided for the purpose under the authority given in said first section, for such time as such STATE SCHOLAESHIPS. 261 justice or judicial officer may determine, not exceeding two years. St. 1853, c. 343, § 2. 46. This act shall take effect in any city, as soon as it may be accepted by the city council of said city, by con- current vote of the two branches thereof. Stat. 1853, c. 343, S 3. IV. STATE SCHOLARSHIP,?. i. Forty-eight State Bcholarships established. 2. Commonwealth to be divided by hoard of education into forty sections. 6, Allowance to Bueb Bcholars at any college in the Commonwealth. 7. Vacant scholarships how filled. Allowance to such scholars at- 3. Selection of Scholars. tending State Normal schools. 4. Same Subject. 5. Times of meeting for making se- lections. Scholars to teach in public schools or forfeit glOO a year. 10. Appropriation for purposes of this act. 1. Forty-Eight State scholarships are hereby established, to aid in educating and training young men 'for the office of principal teacher in the high schools of the Common- wealth, ^itai!. 1853, c. 193. 2. Each county in the Commonwealth shall, in the year one thousand eight hundred and fifty-four, again in the year one thousand eight hundred and sixty-one, and every ten years thereafter, be divided by the board of education, according to its population as determined by the last pre- ceding census, as equally as may be conveniently done, in- to as many sections as such county is entitled to senators in the General Court, except Duke's county and Nantucket, which shall form one section, and all the sections shall be arranged by said board into four classes, of ten each, each of which classes of sections shall be entitled, alter- nately, once in every four years thereafter, beginning in the year one thousand eight hundred and fifty-four, to one scholarship for each of it£ sections ; an"d the year- in whicli each class of sections is to be entitled to scholarships sha,ll be designated by the boajd of education by lot, and notice 262 TOWX OFFIOEK. thereof shall he given by the secretary of the board through the mail, to the school committee of each town in such class. 3. The school committee of every town, in each class of sec- tions, may, in the year designated as aforesaid, recommend, as candidates for scholarships,one or more young men,inhab- itants of their town, who, in their opinion, and in the opinion of a competent teacher, to be certified in writing to the board of education, will be well fitted for college at the commence- ment next succeeding, and the board of education, togeth- er with the senator or senators for the time being, who shall reside within the limits of any section of such class, shall, in the ra.anner hereinafter provided, select from the candidates so recommended, one in each section whom they shall judge most deserving and most likely to tecome use- ful as a teacher, who, when selected, shall be the scholar for such section. If no senator shall reside within the limits of any particular section, the board of education shall make the selection for that section, and in case any section in such class shall have no candidate suitable to be selected as aforesaid, his place may be filled by said board from the other candidates, recommended as aforesaid, from other sections of the same class ; and if from a deficiency of candidates possessing the prop- er qualifications, in any class of sections, less than ten scholars be selected therefrom as aforesaid, the board may complete the number from the State at large ; and the se- lection shall be made, in that case, after a careful examina- tion as to scholarship, conducted by the board of educa- tion. 4. If, after selection of ten scholars from any class of ' sections, there shall be other candidates from, such class recommended as aforesaid, who shall be considered by the board of education as possessing the requisite qualifi- cations, said board may select therefrom two addi- tional scholars, and in default of such candidates from STATE SCHOI,AB.SHIP&. 263 Buch classes, they may select such additional scholars from the State at large, in the manner provided for that case in the third section of this act. All candidates shall be persona of irreproachable moral character, free from ^ly considerable defect of sight or hearing, in good health,, and of a healthy constitution. 5. Meetings shall be held at the office of its secretary by the board of education, and the senators of the respective sections aforesaid, at such times, in the month of June next, and in the month of March in each year, thereafter, as the board shall appoint, of which its secretary shall give due notice, at which meetings the selections hereby required to be made by the board and such senators, shall be made. The selections to be made by the board alone may be made at the same time, or at other times in the same year. 6. Any scholar, so selected, may be educated at either of the colleges now established by law within this Com- monwealth, which he and his friends may select, and the board of education shall pay to him at the end of each year of his college course, not exceeding four years, the sum of one hundred dollars, provided he shall pro- duce, from the president, for the time being, of such col- lege, a certificate that he has been, during the year, feithr ful in his studies, exemplary in his deportment, and that he ranks in scholarship, among the first half of his class. 7. If any scholarship shall become vacant during the term for which its scholar was selected, the vacancy may be filled in the manner provided by this act for the original se- lection, and the board of education shall take all the meas- ures necessary for the filling of such vacancy in the manner aforesaid. 8. If any such scholar, after leaving college, shall de- sire to attend one of the State Normal Schools, he shall be allowed the sum of twenty-five dollars for each term. 264 TOWN orncEK. not exceeding two, during wtich lie shall attend such school, to be paid to him by the board of education, upon his producing from the' principal master of such school a certificate of attendance, and of his faithful and exem- plary performance of the requirements of such school ; provided, however, that such allowance be made only out of any unexpended balance of the funds provided by this act. 9. Any scholar who shall have enjoyed the bounty of the Commonwealth in the manner provided by this act, shall teach in the public schools of the Commonwealth a term of time equal to that for which he shall have received such bounty ; and in case he shall fail so to teach, if in competent health, he shall pay to the treasurer of the Commonwealth, at the rate of on6 hundred dollars a year for the time he shall fail so to teach, with interest thereon from the end of his college course, which may be recovered by the treasurer in an action at law ; and, when received, shall be added to the appropriation made by this act,and ap- plied to the same purposes ; provided, that such scholar shall be under no obligation to make such payment, if he shall prove, to the satisfaction of the board of education, that his failure so to teach has arisen from his inability to find employment. 10. The sums of twelve hundred dollars for the year commencing July first, one thousand eight hundred and fifty-four, twenty-four hundred dollars for the year com- mencing July first, one thousand eight hundred and fifty- five, thirty-six hundred dollars for the year commencing July first, one thousand eight hundred a,nd fifty-six, and forty-eight hundred dollars annually thereafter, are hereby appropriated for the accomplishment of the purposes of this act, under the direction of the board of education ; the said sums to be deducted from the proceeds of the public lands or the school fund, according to the provisions SCHOOL DISTKICTS. 265 of tlie act of the year one thousand eight hundred and forty-six, chapter two hundred and nineteen ; and the gov- ernor, upon the requisition of the board of education, shall draw his warrants therefor. IV. SCHOOL DISTRICTS. 1. To be corporattiona for certain purposes. 2. Same Sabject. 8. Formation oC in each town, i. Restriction as to redistrietlng. 5. Constmction of Stat. 184&, c. 206. 6. ProceedingB when a town divided into school districts shall abolish the SE^e. 7. Proceedings where district school houses are erected at the common ex- l>ense of the town. 8. Provisions of former law extend- ed to lands and property connected and used with school houses. 9. School districts to be discon- tinued at discretion of school committee unless town vote otherwise. 10. Towns have no power to alter Umits of districts, Ac. 11. May do it to a certain ex- t-ent. 12. What power given to towns to define limits. 13. How districts must be consti- tuted. 14. Power conferred on towns to de- termine, limits of school district, how executed. 15. Can not form a portion of a town into a school district. 16. When parol evidence is admis- sible to show, &C., and what inference may a jury draw. 17. Prudential committee in each district. 18. Vacancy in prudential commit- tee may be filled by school district at regular meeting. 19. When districts may choose their prudential committees. 20. Prudential committees agents for town. 21. The prudential committee man chosen by a school district pursuant to a vote of the town not liable to the district for money received out of the treasury of the towns. 22. Prudential committee how chosen by the districts. 23. Under the general article in a warrant for an annual town meeting, towns can authorize school districts to choose prudential committee. 24. Additional members of pruden- tial committee can be chosen at ah adjourned meeting of the district. 25. A majority of a prudentijj, com- mittee may lawfully do official acts. 26. School district bound by the acts of its prudential committee, though the vote under which they act- ed, was not passed at a legal meeting. 27. Clerk shall be chosen and sworn, who shall keep records, &c. 28. Clerk of a school district once duly sworn can continue to act without again taking the oath upon his re-elec- tion. 29. Clerk of a school district diit of ofBce cannot amend his records. * 30. School district can act only in its corporate capacity, &c. 31. Acts done at a meeting of a school district illegally called can not bind it, &c. 32. Clerk may act as such, though he has removed into an adjoining dis- trict. 33. Districts may raise money for the erection of houses and other pur- poses. 34. Same subject. 35. What fkcts, warrant a jury in finding an acceptEince and ratification by the district of the acts of a building committee. 36. School districts may raise money for the purchase of school libra- ries, Ac. 37. Clerk liable only for want of integrity ; district, for illegality in as- sessing taxes. 38. Selectmen, to determine the places for school hoxises, in case, &c. 39. If prudential committee is not chosen, town committee shall perform his duties. 40. Towns may provide school houses, &o., at common expense. 41. Where personal and real es- tate may be taxed. 266 TOWN OrFICEIL. 42. JnhabitaDt of a school district removing therefrom before it votes to raise money for a certain purpose not liable to be taxed for It, although, Ac, 43. Property in manufacturing cor- porations, where taxed. 44. Non residents' estate where taxed. 45. Assessment, when invalid. 46. All lands of any non-resident, to be taxed in one district. 47. School taxes assessed in same manner as town taxes. 48. Money voted to be raised by district, by whom may be asaessedl 49. Certificate of clerk to the vote not necessary. 50. Hme for assessment only di- rectory to the assessors. 51. Power of assessors in case of an illegal assessment. 52. Vote for raising money to repair or bnild school-house may be rescind- ed. 53. Under what circumstances, building committee not able to recover from the district,money paid out ot their own flinds. 54. When assessment may be made. 55. What valuation to be used. . 56. Certificate of district clerk that money was duly voted, binding on town officers. 57. Persons set off to another dis- trict after assessment, liable to pay tax. 58.. Certain omissions of assessors do not make tax void. 59. What property exempt from taxation. 60. . Assessors to issue warrants to collectors. 61. Money raised, to be at the dis- posal of committees. Q2. Assessors no authority to assess a tax exceeding the sum voted. 63. Inhabitant of a school district who has paid a tax illegally assessed, can recover the amount. 64. The fact that the sum so re- ceived is no more than his due pro- portion of t .e amount necessary to pay the debts c the district is no defence. 65. Co? ectors to have same power as in case of town taxes. 66. Treasurers, to have like powers, as in case of town taxes. 67. Assessors, Sec, to have same compensation as in case of town taxes. 68. tA^seSBors may abate, as in town taxes. 69. If Inhabitants of district rei\ise to raise money, the town may or- der it. 70. If districts neglect to establish schools, town committee may do it. 71. Selectmen or prudential com- mittee may issue warrants for district meetings. 72. Manner of warning meetings. 73. The districts may direct the mode of calling meetings. 74. School district meetings may be warned in all cases in the manner pre- scribed by the E. S. ch. 23, § 46 and 47, notwithstanding the mode of warn- ing may be particularly prescribed. 75. Under what special circumstan- ces the warrant, and warning of the meeting are valid. 76. Clerk authorized by vote of the district to caU and warn annual meetings — cannot call and warn any other under that vote. 77. If the Inhabitants of a school district prescribe the mode of warning future meetings, the mode so pie- scribed must be pursued. 78. The clerk under a vote that the clerk warn all fhture meetings in said district, has no authority to &Jl a meet- ing. 1 Every scLooi district shall be a body corporate, so far as to prosecute and defend in all actions, relating to tbe property or affairs of the district. H. S. c. 23 § 57. 2. They shall also have power, as a corporation, to take and hold, in fee simple or otherwise, any estate, real or personal, which has been, or may be given to, or pur- chased by them, for the supporting of a school or schools in the district. 73. § 58. 3. The inhabitants of every town may, at any town meeting, to be called for that purpose, divide their town SCHOOL DISIBICIS. 26V Into school districts, and determine the limits of sucli dis- tricts ; or they may, if they think it expedient, carry into effect the provisions of this chapter, without forming suet districts. Ih. § 24. 4. No town shall be districted anew, for school purpose's, so as to change the taxation of lands of proprietors into districts, usii-g different school houses, oftener thaii once in ten years. Stat. 1849, c. 206. 5. The preceding section shall be so construed that such districtiiig anew may occur once at any lime within the ten years next subsequent to the passage of the said act. Stat. 1851, c. 303. 'Q. Any town of this Commonwealth, that has been di- vided into school districts, the inhabitants of which may think it expedient to abolish said districts, shall be author- ized to take possession of the district school houses in the following manner — an appraisement shall be made, by the direction of the town, of the value of the school houses ; a tax shall then be levied suf&cient for the erection of new school houses in all the districts; and to each district shall be remitted a proportion of the tax equal to the "value of its house. Stat. 1850, c. 286. 7. Any town that has been divided into school districts the inhabitants of which shall desire so far to alter their district system as to provide for the erection of school houses in all the districts, at the common expense of the town, shall be authorized to proceed in the manner pro- vided in the preceding section. Stat. 1850, c. 286, § 2. 8. The provisions of an act entitled " an act concerning district school houses," passed in the year one thousand eight hundred and fifty, shall apply equally to the lands connected with said school houses, and the apparatus and other property owned by the districts, and used for school purposes. Stat. 1852, c. 199. ■9, in each town in this Commonwealth, which is now 268 TOWN OFPICEE. or may be hereafter divided into districts for schools, such districts shall be discontinued at the discretion of the school committee ; unless the inhabitants of the town, at their annual meeting for the choice of town officers next following the first of January, eighteen hundred and fifty- four, and as often as once in three years thereafter, shall vote to continue the same ; and the care and management of all the schools therein shall devolve upon said school committee, until the town, id a subsequent annual meet- ing, shall otherwise direct. StcU. 1S53, c. 163. 10. But towns have no power to alter the limits of a school district, so far aa to destroy the corporation, with- out its consent, nor so as to annul or impair any contract made with such corporation. 5 Pick, 32S. 1 1 . Yet a town may alter the limits of districts, so far as may be consistent with their preservation as bodies cor- porate, lb. 15 Pick. 35. 12. The power given to a town to determine and define the limits of school districts, can be executed only by a geographical division of the town. Where in attempting to define a school district, the town directed that certain persons named should compose ^;he district (the probable intention of the town that the" lands occupied by those persons should form the district not being expressed in the town records) it was held that the limitation of the district was merely personal and •therefore invalid. 1 Pick. 106. 12 Pick. 206. 7 Jifet. 219. 13. The districts must be so constituted, as to include afl. the inhabitants of the town : so that where a town after defining an east and west district, proceeded to direct -that certain individuals by name should have liberty to send their children to schools in adjoining towns, the districting was held to be invalid. 12 Pick. 206. 14. The power conferred by law on towns to determine ;and define the limits of school districts, can only be exe- SCHOOL DIST&I'CIS. 2B9 cuted by^a geographical or territorial division . 4 Cmh .250. 15. The inhabitaats of a town are not authorized by law to form a portion thereof into a school district, leav- ing all the rest of the town not districted. 4 Cush. 251. 16. Where there is no record of the establishment of school districts in a town, parol evidence is admissible to show that the inhabitants of such town living within certain specified limits, have been known and recognized and have acted in all respects as a school district for many years, and from such evidence a jury may infer that such dis- trict had a legal origin, and was legally established provided the whole town was in like manner laid out into districts by territorial or geographical divisions. 4 Gush. 487. 17. Every town, which is or may be divided into schoo' districts, shall, at their annual meeting, in addition to the school committee for the town, choose one person, resident in each school district, to be a committee for that district, and to be called the prudential committee ; who shall keep the school house of such district in good order, at the ex- pense of the district ; and, in case there be no school house, provide a suitable place for the school of the district, at the expense thereof; provide fuel, and all things necessary for the comfort of the scholars therein ; select and contract •with a school master for the district ; and give such infor- mation and assistance to the school committee of the town, as may be necessary to aid them in the discharge of the duties required of them. B. S. c. 23, § 25. See § 4. 18. Whenever the office of prudential committee of any school district in this Commonwealth shall become vacant by reason of the resignation, removal or death of that officer, such vacancy may be filled by the school district in which such vacancy occurs at any meeting called for that purpose in accordance with sections forty-six, forty-seven and forty- eight of the twenty-third chapter of the Revised Statutes. St. 1855, c. 451. 23* 270 TOWN OFFICEK. 19. Whenever a town stall determine that teachers shall be selected and contracted -with by the prudential commit- tees of the several districts, such town or district may elect three persons as a prudential committee, who shall perform all the duties provided for in the above section. Stat. 1839, c. 137. 20. The prudential committee of a school district, in hiring an instructor for the district school, acts as the agent of the town, and the instructor's remedy for his wages is an action against the town. 11 Pick, 260. 21. The prudential committee man of a school district chosen by the district, pursuant to a vote of the town is not liable to the district for money received by him out of the treasury of the town which had been raised by the town and appropriated by it to the support of the school in such district and placed to the credit of the district upon the town treasurer's books. 7 Gush. 478. 22. In any town, which shall so determine, the said pru- dential committee may be chosen by the inhabitants of the several school districts, to which they respectively be- long, in such manner as the district may direct. R. S. e. 23, § 26. 23. Under an article in a warrant for an annual tovrai meeting, to choose all such town officers as the law directs, the town may lawfully pass a vote authorizing the several school districts to choose their prudential committees. 12 Met. 29. 24. A school district after having chosen one person as prudential committee, at its annual meeting and adjourned, may choose additional members of such committee at the adjourned meeting. 12 Met. 199. 25. A majority of a prudential committee of a. school district may lawfully do official acts, especially after a re- fusal of the minority to meet with them. 12 Met. 99. 26. A school district by vote instructed its pruientiai SCHOOL DISTKICTS. 271 committee to prosecute for trespasses, that have been, or in future may be committed by breaking into the school houses of the district, and the committee employed an attorney to commence several actions of trespass which he commenced and prosecuted accordingly, and he afterwards sued the district for his fees and disbursement in those actions, and it was held that the district was bound by the acts of the committee, and that the attorney was entitled to recover although the said vote of the district was not in pursuance of any article in the warrant for the meeting at which it was passed. 12 Met. 99. 27. The inhabitants of each school district, qualified to vote in town affairs, shall choose a clerk, who shall be sworn to the faithful disci large of the duties of his office, by the moderator, in open meeting, or by any justice of the peace, and who shall make a fair record of all votes, passed at any meeting of the district, and certify the same when required, and who shall hold his office until another shall be chosen and sworn in his stead. Ih. § 27. 28. A clerk of a school district who is once duly sworn into office and is afterwards chosen clerk but is not again sworn, is qualified to act as clerk by virtue of the Rev. Stat. c. 23, § 27, which provide that he shall hold his office until another shall be chosen and sworn in his stead. 12 Met. lOS. 29. A clerk of- a school district after he is out of office, and another is chosen and sworn in his stead, cannot amend the district records. 12 Met. 105. 30. A school district can act only in its corporate capac- ity, and can bind itself only by acts authorized by legal votes passed at a district meeting regularly called. 12 Met. 105. 31. A meeting of a school district J which the clerk of the district had no authority to call and warn, was called ajjd warned by hini at the request of A/ a member of the dis- 272 TOWN OFFICEE. trict who attended the meeting and made a written offer to lease to the district on certain terms a parcel of his land for the site of a school house, and the district voted to accept the offer. A. afterward refused to execute the lease, and the district brought a bill in equity against him, to enforce specific performance of his agreement. Held that A. was not estopped to deny the legality of the meet- ing, that the (district by reason of the illegality of the meeting was not bound by its vote, that the agreement for the want of mutuality did not bind A. and that the bill could not be maintained. 12 Met. 105. 32. Where the clerk of a school district removed into an adjoining district, but within the same town, and an- other was chosen in his stead but not sworn, it was held that the first continued competent to act as clerk. 21 Pick. 75. 33. The said inhabitants may, at any meeting called for that purpose, raise money for erecting or repairing school houses in their respective districts ; for purchasing or hiring any buildings to be used as school houses, and land for the use and accommodation thereof ; for purchasing fuel, furni-' ture, and other necessary articles for the use of schools ; they may also determine, in what part of their respective districts such school houses shall stand, and may choose any committee to carry into effect the provisions aforesaid ; and they may also, by the prudential committee of the district, select, contract with, and employ, an instructor for each school in the district. Ih. R. S. c. 23, § 28. 34. When a school district accepted the proposals of a builder, to erect a school house for a certain sum, with liberty to build a public hall over the same, as the build- er's property, he allowing the district to have the use of the hall free of charge for meetings of the district, and for examination of the schools &c., and the house was so built ; it was held that the district had not exceeded its SCHOOL DlSTElCTS. 273 authority, and that a tax was legally assessed to pay for the house. 6 Met. 498. 35. Where a school district appointed three persons a committee to build a school house two of whom, the third refusing to act, built a house, where all the schools of the district were afterwards kept and all meetings of the inhab- itants of the district held, and on which the notices of such meetings by a vote of the district were posted, it was held that on these facts a jury were warranted in find- ing such a ratification and acceptance, by the district, of the doings of the two acting members of the conunittee as would render the district liable to pay them for the house. 4 Cush. 494. 36. The inhabitants of any school district, in any city or town, and of any city or town not divided into school dis- tricts in this Commonwealth, may, at any meeting called for that purpose, raise money for the purchase of libraries, and necessary school apparatus, in the same manner as school districts may now raise money for erecting and re- pairing school houses ig their respective districts. Stat. 1849, c. 81. 37. The clerk of a school district shall be answerable only for want of integrity on his own ^ part ; and, if he shall certify truly, to the assessors of the town, the votes of the district, for raising by a tax any sum of money, the district shall be liable, in case of any illegality in the pro- ceedings, which may have been had, in relation to raising such money. B. S. e. 23, § 29. 38. If at any meeting of the legal voters of any school district they cannot determine by a vote of two thirds of the voters present and voting thereon where to place their school house, the selectmen of the town, to which the district be- longs, upon application made to them, by the committee appointed to build or procure the school house, or by five or more of the legal voters of the district, shall determine 2*74 TOWN otrtciES. ■where such school house shall he placed. Ih. § 30 Stat. 1852. c. 119. 39. In all cases, where a prudential committee shall not hd chosen for any school district, the school committee of the town shall perform all the duties of the prudential comniiftee thereof, lb. § 31. 45. "the inhabitants of every town may, if they shall think it expedient, carry into effect the provisions of the twenty eighth section, at the common expense of the town, so far as relates to providing school houses for the several school districts of the town ; and the town in such case may, al any legal meeting, raise money and adopt all other proper measures for this purpose, lb. § 32. 41. In raising and assessing inohey in the several scliool districts, every inhabitant of the district shall be taxed, in the district in which he lives, for all his personal estate, and for all the real estate which he holds in the town, be- ing under his own actual improvement ; and all other of his real estate, in the same town, shall be taxed in the district in which it lies. 75. § 33. 42. An inhabitant of a school district who removes therefrom before the district votes to raise' money for the purpose of erecting or repairing a school house, is not liable to be taxed for that purpose, although he was a member of the district on the first day of May next be- fore the vote was passed. 12 Met. 178. 43. In the assessment of all taxes, pursuant to the forty- first section, all real estate and machinery, belonging to any manufacturing establishment whether incorporated or not, shall be taxed In the school districts where the same are situated; and in assessing the shares in such corporation, for the like purposes, the value of said ma- chinery and real estate shall be first deducted from the value of such shares, lb. § 34. Stat. 1850, c. 301. 44. Whenever the real estate of a non-resident owner SCOKOOL DISTEICTS. 275 shall be taxed to such, owner, it may be taxed in such, dis- trict as the assessors of the town shall determine ; and the said assessors, before they assess a tax for any district shall determine in which district the lands of any such non-resident shall be taxed, and certify in writing their determination to the clerk of the town, who shall record the same ; and such land, while owned by any person, resident without the limits of the town, shall be taxed in such district accordingly, until the town shall be districted anew. Ih. § 35. 6 Met. 512, 546. 45. Where the assessors neglected to comply with the above provisions it waf held that the assessment was in- valid, and that an inhabitant of the district might avail himself of such defect. 14 Pick. 362. 46. All the lands, within any town, owned by the same person, not living therein, shall be taxed in the same dis- trict. R. S. c. 23, § 36. 47. The assessors of the town shall assess, in the same manner as town taxes are assessed, on the polls and estates of the inhabitants of each school district, and on all lands liable to be taxed therein, as aforesaid, all moneys voted to be raised by the inhabitants of such districts, for the purposes aforesaid ; and aiich assessment shall be made within thirty days after the clerk of the district shall cer- tify to said assessors the sum voted by the district to be raised. 76. § 37. 48. In the construction of the statute of 1799, ch. 66, sect. 2, the provision of which on this subject is the same as the above, the court held as follows : — Moneys voted to be raised by a school district may be assessed by assessors chosen after such vote. 3 Mass. 23 . 49. It is not necessary that such vote be certified by the district clerk, to the assessors in oifice at the time the vote passed ; but it may be certified to the assessors which shall be chosen afterwards. lb. 276 TOWN OFPICEK. 50. Nor is it necessary that tke assessors make the as- sessment wi:hin thirty days from the date of the certificate of the district clerk ; for, although they are directed so to do by the statute, yet as there are no negative words re- straining them from making the assessment afterwards, the naming of the time for the assessment must be considered as directory to the assessors, and not as a limitation of their authority. Ih. 21 Pick. 75. 51. If the assessors make an illegal assessment, and is- sue their warrant to collect the money, they may revoke their doings, and make a new assessment and issue a new warrant, without a second certificate from the district clerk ; or if their ofiice should expire before making such new assessment, or if they sh uld neglect or have no time to make any assessment, .he district clerk may make a second certificate to their successors, who may make the assessment. 3 Mass. 230. 52. A school district, after having voted to raise money for building or repairing a school house, may at a legal meeting at any time before the assessment, rescind their vote ; and then the assessors, after regular notice, will have no authority to make the assessment. Ih. 53. A school district voted to build a school house and appointed a committee to contract with an individual to build it. Subsequently the district voted to rescind its votes, notified the contractor of the fact and forbid him to proceed to execute the contract, the contractor notified the committee that he should abandon the contract unless they became personally responsible to him. After they had bound themselves individually to pay for the house, the contractor built it according to the contract and the com- mittee paid him out of their own funds. In an action by the committee against the district for the money so paid it was held that the plaintifis were not entitled to recover, although the prudential committee of the district had SCHOOL DISIHICIS. 277 ■caused the house so TDuilt to be occupied f'oT the purposes «f a school for the district. 2 Oash. 419. 54. If a school-district vote that the money, raised by them for the purpose of building or repairing a school house, shall be paid within a certain time, the assessors anay, notwithstanding such vote, make the assessm.ent after the expiration of the time of payment expressed in the vote ; for the power of fixing the time of payment is not given to the district, but to the assessors, who are to limit it in their warrant. 3 Mass. 230, 55. It is not necessary to notify the inhabitants to bring in lists of their polls and estates, nor for the assessors to make a new valuation, but the taxes may be made in ref- erence to the town taxes for the same year. 5 Pick. 323. 56. The town officers are bound by the certificate of the district clerk, that the money was duly voted ; and they are not to inquire into the regularity of the proceedings of the district. 14 Mass. 315. 5 -Pick. 323. 57. If after a tax has been assessed, part of the district should be set off to another district, the inhabitants of that part will still be held liable to pay the tax, the debt being fixed by the assessment. 5 Pich. 323. 58. A tax assessed upon the inhabitants of a school dis- trict is not rendered void by the omission of the assessors, through misinformation, mistake of fact, or error of judg- ment, to assign the real estate of one or more non-resident owners to any school district. 6 MeL 498. 59. All property belonging to common school districts, the income of which is appropriated to the purposes of education, is exempted from taxation. St. 1843, c. 85. 60. The said assessors shall make a warrant, substan- tially in the form heretofore used, except that a seal shall not be required thereto, directed to one of the collectors of the town, to which such district belongs, requiring him to collect the tax so assessed, and to pay the same to the • 24 27s XOWK OPFICEK. treasurer of the town, witHn a time to be limited in the warrant ; and a certificate of tEe assessment stall he made by tbe assessors, and delivered to the said treasurer, i?, S. c. 23, § 38. 61. The money so collected and paid shall be at the dis- posal of the committee appointed by the district, to be by them applied to the building or repairing of school houses, or to the purchase of buildings, to be used as school houses, or to the purchase of land, for the sites of school houses, as before provided, and according to the votes or directions- of the inhabitants of the district. lb. § 39. 62. Under a vote to raise the sum of $250 assessors) have no authority to assess a tax of $285,01. 3 Gush. 567. 63. The inhabitants of a school district, having voted to raise a sum of money for building a school house, and the same having been subsequently assessed upon the in- habitants and collected and paid by the collector into the town treasury, was paid over by the treasurer of the town to a building committee appointed by the district. The assessment thus made being illegal and void, it was held that an inhabitant of the district, who had paid the tax so assessed against him to the collector, might recover the amount in an action for money had and received against the school district. 3 Gush. 567. 64. It is no ground for retaining a tax illegally assessed by a school district against an inhabitant who has paid the same, that thp sum so received of him was only his due proportion of the amount necessary to discharge the debts of the district, and. for payment of which the district might have legally raised a suiHcient sum. 3 Gush. 567. 65. Every collector, in collecting such tax, shall have the same powers, and proceed in the same manner, "as is by law provided in collecting town taxes. Ih. § 40. 66. The treasurer of any town, to whom a certificate of SCHOOL DISTBIOTS. 279 the assessment of a district tax shall be transmitted as aforesaid, shall have the like authority, to enforce the col- lection and payment of the money, so assessed and cer- tified, as in the case of moneys raised by the to^vn, for the use of the town. lb. § 41. 67. The assessors, treasurer and collector shall have the «ame compensation, respectively, for -assessing, collecting and paying out all moneys, assessed for the use of a school district, as is allowed by the town, for the like services in respect to town taxes, lb. § 42. 68. Tlie assessors of the several towns shall have the same power to abate the tax, or any part thereof, assessed •on any inhabitant of a school district, as they have to •abate any town taxes, lb. § 43. 69. Whenever a meeting of the inhabitants of any school idistrict shall be called, for the purpose of raising money, and a majority of the voters present shall be opposed to the raising of the money, any five inhabitants of such school district, who pay taxes, ma,y make application in writing to the selectmen of the town, in which the school district is situated, requesting them to insert, in their war- rant for the next town meeting, an article, requiring the opinion of the town, relative to the expediency of raising such moneys as were proposed in the warrant for said dis- trict meeting ; and if the majority of the voters, present in such town meeting, shall think the raising of any of the sums oi money, proposed in said warrant, to be neces- sary and expedient, they may vote such sum as they shall think necessary for the said purposes, and the same shall be assessed on the polls and estates of the inhabitants of such district, and be collected and paid over in the manner before provided. lb. § 44. They may also empower the selectmen of the town, or the school committee, or may choose any committee, to earry into effect the vote, if the inhabitants of the school 280 lOwk oFPrcEE, district shall neglect or refuse to choose sucii ocmmittee, Stat. 1848, c. 274. TO'. If any schooi district shall neglect or refuse to es- tablish a school and employ a teatsher for the same, the- ' school committee of the- town may estaiblish such school anct employ a teacher therefor, as theprudeirtial committee- might have dene. J^. S. e. 23, § 4S. 71. The selectmen of the several towns, divided into- school districts as aforesaid, and the prudential committee- of every such district, upon- application made ^to them,, respectively, in writing, by three or more residents- in any district, who pay taaces, shall issue their -warraait, directed! to one of the persons making such applica-tion, requiring; him to warn the inhabitants of such district, qualified ta vote in town affairs, to meet at such time and place in the same district, as shall be expressed in thfr warranto lb. § 46. 72. The warning aforesaid" shall be given seven diays at least before the tinw appointed for the meeting, aaid shall he either by personal notice to every inhahitanit of the- district, qualified to vote in town affairs, or by leaving, at his last and usual place of abode; a writtea notification,, expressing therein the time, place, and purpose of the meeting, unless the district shall prescribe another mode of warning their meetings.^ Ih. § 47. 73> Every school district may, at any regular meeting, having an article in the waa-rant for that purpose, prescribe the mode of warning all futm-fe meetings of the district ; and th«y may also direct by whom and in- what manner such meetings shall be called. lb. § 48. 74. Notwithstanding any school district may have, afe any regular meeting having am article in the warrant for that purpose, prescribed the mode of waarning all future- meetings of the district, and directed by whom, or in what manner such meetings, shall be called, or made either of SCHOOL DISTRICTS. 281 such regulations, it shall nevertheless be lawful that all school district meetings be hereafter called and warned in the manner prescribed by the forty-sixth and forty-seventh sections of the twenty-third chapter of the Revised Stat- utes. Stat. 1850, c. 213. 75. A school district passed the following vote or by- law. The annual meetings of the district shall be called by the prudential committee, and warned by the clerk, who shall cause a copy of the warrant to be published in a certain newspaper printed in the town, and shall also post a copy of' the same in four different public places within the limits of the district, and the prudential committee shall call the annual meeting of the district, on the Sat- urday evening following the annual town meeting in March. The clerk signed and issutjd a warrant not under seal for ■an annual district meeting on the Saturday evening des- ignated in said vote or by-law by order of the prudential committee (which order was oral) and made thereon the following return. In pursuance of the above warrant I have warned the legal voters of the district (naming it) as prescribed by the by-laws to attend and act upon the business therein named J. A. G. district clerk. Held that the warrant for the meeting and the warning of the meet- ing were valid. 12 Met. 99. 76. The records of a school district showed that the district voted to authorize theu' clerk to call and warn their annual meetings. Held that the clerk was not there- by authorized to call and warn any other than the annual meetings, and that other meetings must be called by the selectmen or prudential cogimittee according to the pro- visions of the Rev. Stat. c. 23, § 46. Held also that parol evidence was inadmissible to prove that the real vote of the district was to authorize the clerk to call and warn all district meetings. 12 Met. 105. 77. If the inhabitants of a school district, in pursuance 24* ©f the authority conferred upon them by the Rev. Stat, e. 23, § 48, prescribe the mode of wai-ning future meetings^ the mode so prescribed must be pursued so long as the" vote therefor remains unrescinded, and meetings cannot- ■ a/fterwaids be called in the manner specified in §§ 46 and 47 even though the ofiicers of the district refuse or neglect to pursue the mode prescribed. 2 Gush. 419. 78. The elerk of a school, district under a vote that, future meetings be notified by posting up notices thereof at certain specified places, and " that the clerk warn all fu- ture meetings in said district," has no authority to call ai meeting,- but only t& notify and warn a meeting, called by competent authority. 8 Cush. 592.- V. UNION SCHOOL DISTRieiS. 1. FurpoBe and manner of forming ttoton dlBtric^. 2. Corporate powers of stfchdistrictal 3. Manner of calling and warning meetingB. 4. Clerk to be cbosen and sworn ; bis duties, and tenure of office. 5. Power of districts as to raising money to build, Ac.-, school houses, &c. Provision as to location of houses, ancf choice of committee. 6. Who shall be prudential commit- tee of Buch districts ; their powers. 7. Such committee to determine ages, &c., of pupils, and the proportion of money to be expended subject to vote- of district. 8. Town committee's power, &c., to extend to union districts^ 1 . Any two or more contiguous school districts may as- sociate together and form a union district, for the purpose of maintaining a union school to be kept for the benefit of the older children of such associated districts, if the inhabitants of each of said districts shall, at legal meetings called for that purpose, agree to form such union by a votes of two thirds of the legal -voters of each dis-trict present and voting therein. Stat. 1839, c. 56, § 2. 2. Every union district thus formed shall be a body cor- porate, with the corporate powers of other school districts. in relation to prosecuting and defending suits at law, and holding real and personal property, and shall be called by UNIOX SCHOOL DISTRICTS. 283 such name as said district at its first meeting shall deter- mine. Stat. 1838, c. 189, § 2. 3. The first meeting of such union district shall be called in such manner, and at such time and place, as may be agreed upon by the associated districts respectively, by a vote of the same, at the time of forming the union ; and the union district may, from, time to time thereafter, pre- scribe the mode of calling and warning the meetings there- of, in like manner as other school districts may do, and may also determine at what time its annual meetings shall be held. 7 J, § 3. 4. Such union district, at the first meeting thereof, shall choose, by ballot, a clerk, who shall be sworn in the same manner and shall perform the same duties as are prescribed in relation to the clerks of other school districts, and shall hold his office until another shall be chosen in his stead. Ih. § 4. 5. Such union district may, at any legal meeting called for that purpose, raise money for erectihg, purchasing, renting and repairing any building to be used as a school house for the union school aforesaid, and purchasing or renting land for the use and accommodation thereof; also, for purchasing fuel, furniture, and other' necessary articles for the use of said school, and in assessing and collecting a tax or taxes for the above purposes, the like proceedings shall be had as are prescribed by law for other school dis- tricts ; said district may also determine where said school house shall stand, and in case the location thereof should not be so determined by said district, the same shall be referred to the selectmen of the town, in the same manner as is provided in the case of other districts ; said district may choose any committee to carry into effect the provi- sions aforesaid. Ih. § 5. 6. The prudential committees of the respective districts, forming the union district, shall, together, constitute the 284 TOWN OFFICER. prudential committee of said district, who shall have all the powers, and discharge all the duties, in relation to said school and the school house of said district, as are prescrihed to other prudential committees in relation to the schools and school houses in their respective districts. Ih. § 6. 7. The prudential committee of the union district shall also determine the ages and qualifications of the children of the associated districts, who may attend the union school, and shall also determine what proportion of the money, raised and appropriated by the town for each of the dis- tricts composing the union district, shall be appropriated and expended in paying the instructor or instructors of the union school; subject, however, in both the above cases, and in all other matters relating to said school, to any vote, of said union district that may be passed at any legal meet- ing thereof; provided, however, that the schools in each of the associated districts shall continue to be maintained in the same manner as if this act had not been passed. lb. §7. 8. The school committee of the town in which such union district may be located, shall have the same powers, and perform the same duties, in relation to such union school, as are prescribed to them in relation to other dis- trict schools. Ih. § 8. VI. HIGH SCHOOL DISTRICTS. 1. Adjacent towns may unite to form a high school district. 2. School cummittees from such towns to elect one ft-om each hoard to form the committee for such school 8. Such committee to determine the location of the school-house, d^a 4. Towns to be assessed for ex- penses according to their proportion of the county tax. 1. Any two adjacent towns, not having more than two thousand inhabitants each, may form one high school dis- trict for establishing such a school as is contemplated in COXTIGirorS sflHOOL DISTRICTS. &C. 285 the fifth section of the twenty-third chapter of the revised statutes, whenever a majority of the citizens of each town, in meetings cailed for that purpose shall so determine. Stat. 1848, c. 279, § 1. 2. The school committees of the two towns so united, shall elect one from each of their respective hoards, and the two so elected shall form the committee for the man- agement and control of such school, with all the powers conferred upon school committees and prudential com- mittees. 76. § 2. 3. The committee provided for in the foregoing section, shall determine the location of such school house as shall be authorized to be built by the towns forming such dis- trict, or authorize the location of such school alteniately in the two towns, whenever the towns shall not determine to erect a house for its permanent location. lb. § 3. 4. In the erection of any schoolhouse, for the permanent location of such school, and in the support and mainten- ance of the same, and in all incidental expenses attending the same, the proportions to be paid by each town, unless otherwise agreed upon, shall be according to the propor- tions of such towns in the county tax. lb. § 4. VII. CONTIGUOUS SCHOOL DISTRICTS IN ADJOINING TOWNS. 1. Contiguous diBtricts of adjoiuiBg towns, may unite themselves into one. 3. No such union to be formed without consent of the districts and towns. 3. United districts may again be separated, 4. First and other meetings of united districts, how called. 5. Prudential committee to be chosen. 6. Moneys raised, to be in pro- portion, A.C. 7. Moneys to be assessed by asses- sors of respective towns. 8. School committee of adjoining towns, to officiate alternately, &c. 9. Children living far from school in town- of residence may attend school in a^oining town, on such terms, &c. 1 . Where two or more contiguous school districts, in ad- joining towns, are too small to maintain schools advantage- ously in each, such districts may, if they. see fit, unite and 28(5 TOWN Oi'FlVHii. form one district, with all the powers and privileges, and subject to all the liabilities, which now are, or hereafter may be, allowed or prescribed in regard to ^hool districts. S. Ji. c. 23, § 49. 2. No district shall be so united, unless the inhabitants of each shall, at legal meetings called for the purpose, agree thereto ; nor unless the respective towns shall, at legal town meetings called for the purpose, assent to the same ; and when any such vote shall be passed by any school district, the clerk thereof shall forthwith send a certified copy of said vote to the clerk of his town. lb. § 50. 3. Whenever tbe voters in such united district shall, at any legal meeting called for the purpose, deem it expedi- ent to separate, and again form two or more districts, they may do so, first obtaining the consent of the respective towns. '/J. § 51. 4. The first meeting of such united district sjiall be call- ed in' such manner as may be agreed upon by the respec- tive districts, at the time of forming the union ; and the united district may, from time to time thereafter, perscribe the mode of calling and warning the meetings, in like man- ner as other school districts may do. Ih. § 52. 5. Such district at the first meeting, and annually there- after, shall choose a prudential committee, who shall re- ceive and expend the money, raised and appropriated in each town, for said united district, and shall possess all the powers and discharge all the duties, allowed or pre- scribed to the prudential committees of other districts. lb. § 53. 6. The inhabitants of every such united district shall, at the time of voting to raise such moneys, determine the amount to be paid by the inhabitants in each town, which shall be in proportion to their respective polls and estates ; and the clerk of the district shall certify such vote to the assessors of each of the said towns, lb. ^ 54. SCHOOL KETUHNS, &C. 287 7. All moueys, duly voted to be raised by any such united district, shall be assessed, by the assessors of the respective towns, upon the polls and estates of the'inhab- itants of the district, and collected in the same manner, that taxes are assessed and collected in other school dis- tricts. Ih. § ^b\ 8. The respective school committees of the towns, irom which such united district is formed, shall discharge the duties of school committees for the district is alternate years, commencing with the most ancient towns, lh.% 56. 9. Children living remote from any public school in the town in which they reside, may be allowed to attend the public schools in any adjoining town, under such regula- tions, and on such terms as the school committee of said adjoining towns may prescribe ; and the school committees are authorized to pay out the appropriations of money raised for the support of schools, in aid of such children. Stat, 1855, c. 78. Vni. SCHOOL RETURNS AND DISTRIBUTION OF SCHOOL FUND. 1. School Committee to make re- ' 9. Where Bchool committees become port. 2. To make returns to the secretary of state. 3. Form of blanks, Ac, to be pre- scribed by Board of Education. 4. Secretary to send blanks, registers, abstracts and reports, as soon as maybe to clerk of towns, Ac. 5. Duty of town clerk, &c., as to distributing, of school committee, of district clerks and prudential com- mittee. 6. School Committee can not main- tain trespass for the taking of registers from them, 7. School Committee to ascertain and return certificate under oath of the sum raised for the support of schools, Ac. 8. School Committees to return the amount of money received from the school fimd. reduced in number remaining mem- bers empowered to make returns. 10. Failure to make school re- ports or returns to be notified by secretary of Commonwealth to school committee or town clerk. 11. Informal reports or returns to be returned to committee for correction, 12. Reports and returns to be re- ceived in May, deducting ten per cent from sdlowanceto town. 13. Income of committee may be withheld in case of forfeiture of in- come of school ftmd through their neglect. 14. Secretary and treasurer to appor- tion income of school funds among towns, that return certificate according, &c. 15. School fimd to accumulate until it amounts to $1,500,000. 1. The school committees shall annually make a de- 288 TOWN oiricjsK. tailed report of the condition of tlie several public schools in their respective cities and towns, which report shall contain such statements and suggestions in relation to such schools as the said committees shall deem necessary or proper to promote the interests thereof ; and a certified copy of such report shall be transmitted by said commit- tees to the office of the secretary of the Commonwealth, on or before the last day of April. Said report shall also be deposited in the office of the clerk of the city or town, and shall either be read in open town meeting, in the month of February, March or April, or, at the discretion of the school committee, shall be printed for the use of the inhabitants. Stat. 1838, c. 105, § 1. Stat. 1846, c. 233, § 4. 2. The school committees of the several towns and of the city of Boston shall, on or before the first day of No- vember, in each year, make official returns, to the secre- tary of the Commonwealth, of all the public schools in such towns and city, respectively, whether such schools are kept for school districts, or for the common benefit of all the inhabitants. R. S. c. 23, § 62. 3. The form of the blanks, and the inquiries to be an- swered shall be prescribed by the Board of Education ; and the school committees shall fill the blanks and answer the inquiries contained in such form. B. S. e. 23, S 64. Stat. 1838, c. 105, § 5. Stat. 1841 c. 17, § 4. 4. It shall be the duty of the secretary of the Board of Education to send the blank forms of inquiry, the school registers, the abstract of school returns, and the annual report of the board of education, and that of its secretary, to the clerks of the several towns and cities of the Com- monwealth, as soon as may be after they are ready for dis- tribution. Stat. 1850, c. 41. 5. It shall be the duty of the clerk of each of the sev- eral cities or towns to deliver the blank forms of inquiry, SCHOOL BElrKKS, &c. 289 and the registers, when the same shall be received by him, to the school committee ; it shall also be his duty to de- liver one copy of the said abstract and reports to the sec- retary of the school committee of the city or tovni, to be by him carefully kept for the use of the said committee^ and handed over to his successor in office ; and also two additional copies of said reports, for the use of said com- mittee ; — and further, it shall be the duty of the clerks of the several cities or towns to deliver one copy of the said reports to the clerk of each of the sghool districts in the respective cities or towns, to be by him deposited in the district school library, if there be one ; and if not, to be by him carei illy kept for the use of the prudential com- mittee, the I sachers, and the inhabitants of the district, during b^i Continuance in office, and then to be handed over t' jis successor ; and, in case the city or town shall not bi districted, the said reports shall be delivered to the scho A committee, and so placed by them that they shall be accessible to the several teachers, and to the citizens ; and they shall be deemed to be the property of the town or city, and not of any officer, teacher or citizen thereof. Siat. 1849, c. 65, § 2. 6. The school committee of a town have no such prop- erty in the school registers required by law to be kept as will enable them to maintain trespass for the taking of the same out of their possession. 3 Cush. 549. 7. The school committee of each city and town shall in each year, as soon as may be after the first day of May, ascer- tain and make a certificate thereof, under oath, of the sum raised by the city or town for the support of schools, including only the wages and board of teachers, fuel for the schools, and care of the fires and school room dirring said year, and shall transmit the same to the secretary ^of the Commonwealth, on or before the last day of the following April ; which certificate shall be in the following 25 290 TOWN OFFICEK. form to wit r We the school committee of , do cer- tify, that said town raised the sum of dollars for the support of common schools for the said year, including only the wages and board of teachers, fuel for the schools and care of the fires and school rooms. :} School Committee. ss. On this day of personally appeared the above named school committee of , and made oath that the above certificate by them subscribed is true. Before me, , Justice of the Peace. Stat. 1841, c. 17, § 1. Stat. 1846, c. 23, § 2. Stat. 1855, c. 15, §23. 8. In addition to the returns required of school committees, by the twenty-third chapter of the Revised Statutes, such committees shall hereafter be required to state the sum or sums of money received from the school fund by their several towns and cities respectively ; and also to specify the purposes to which such sums may have been appropriated. Stat. 1850, c. 179. 9. Whenever, in consequence of vacancies occurring in the school committee of any city or town in this Common- wealth, after the date of the warrant for the annual town meeting for the election of their successors, or the inabili- ty, arising after the said date, of any of the members of said coinmittee to act, such committee shall be reduced to a minority of its original .number, the remaining members of said committee shall be competent to make the returns required to be made and transmitted to the office of the Secretary of the Commonwealth ; and such returns shall be accompanied by a certificate of the person or persons so making them, setting forth the existence of such va- cancies or disabilities, and the time when the same arose. Stat.- 1849, c. 144. SCHOOX BETXJBNS, &C. 291 10. When the school committee of any city or town in this Commonwealth shall fail to make the reports and returns now required by law, or either of them, within the time prescribed, viz., on or before the last day of April in each year, the secretary of the Commonwealth, to whose office such reports and returns are to be forwarded, shall forthwith notify the committee, or otherwise the clerk of the said city or town shall immediately cause the same to he transmitted to the secretary. Stat. 1855, c. 93. 11. When any report or return shall be found inform- al or incorrect, the secretary shall forthwith return the same to the committee for their further action, with no- tice of the errors or omissions to be corrected or supplied. Stat. 1-853, c. 93, §2. 12. All returns or reports which may have been de- layed, or which are returned by the secretary for the cor- rection of such errors or omissions as would have pre- vented their acceptance originally, shall be received by Mm Lf returned to his office during the month of May : provided, however, that in all such cases there shall be de- ducted the sum of ten per cent, from the whole amount which such city or town would have otherwise received. Stat. 1855, c. 93, § 3. 13. Any city or town may withhold such compensation as the school committee of such city or town, are by law authorized to receive, if such to\vn or city shall have for- feited its own portion of the income of the school fund, through the failure of such committee to comply with the provisions of the foiu-th section of this title. Stat. 1848, c. 173. 14. The income of the Massachusetts School Fund to the first day of June in each year, except the sum of two hundred and forty dollars, appropriated to the support of schools among the Indians, shall be apportioned by the secretary and treasurer, and paid over by the treasurer, on 292 TOWU OI'I'ICES. tke tenth, day of July, to the treasurers of the several cities and towns, for the use of the common schools therein, ac- cording to the number of persons therein JDetween the ilges of five and fifteen ; provided, however, that no such aippor-' tionment shall be made to any city or town which shall have failed to Lomply with any of the provisions of St. 1846, c. 223, given under this title, or which shall not have raised by taxation, for the support of schools, includ- ing only the wages and board of teachers, and fuel for the schools and care of the fires and school houses during the said year, a sum equal at least to one dollar and fifty cents, for each person between the ages of five and fifteen, be- longing to said city • or town, on the first day of May of said year. Stat. 1846, c. 223, §5. »Sifaif. 1849, c. 117, § 206. Stat. 1855, c. 23. 15. The provision in the thirteenth section of the eleventh chapter of the Revised Statutes, limiting the school fund to one million of dollars, is hereby repealed, and the said fund is hereby allowed to accumulate, accord- ing to the provisions of the said section, until it shall amount to a sum not OKceeding one million five hundred thousand dollars. St. 1851, c. 112. IX. GENERAL PROVISIONS. 1. Duties of instructors in colleges, &c. 2. Duty of ministers and town offi- cers. 3. Forfeiture, if towns neglect to raise money for schools ; and how ap- propriated. 4. School committee, &c , to receive and appropriate sums forfeited. 5. Provisions not to alfect funds, &c. of corporations for supporting schools. 6. Land may be taken for school houses, when, <$c. 7. Towns may take land to enlarge school house lots. 8. Limitation of forty square rods not to mclude laud on which to place hnildings. 9. Provisions of act of 1848, ch. 237, extended. 10. Owner of land may have j ury to revise proceedings. 1 . It shall be the duty of the president, professors, and tutors of the University at Cambridge, and of the several colleges, and of all preceptors and teachers of academies. GENEEAl PSOYISIONS. 293 and all other instructors of youth, to exert their hest en- deavors, to impress on the minds of children and youth, committed to their care and instruction, the principles of piety, justice, and a sacred regard to truth, love to their country, humanity and universal henevolence, sohriety, in- dustry, and frugality, chastity, moderation and temperance, and those other virtues, which are the ornament of human society, and the basis upon which a republican constitution is founded ; and it shall be the duty of such instructors to endeavor to lead their pupils, as their ages and capacities will admit, into a clear understanding of the tendency of the above mentioned virtues to preserve and perfect a re- publican constitution, and secure the blessings of liberty, as well as to promote their future happiness, and also to point out to them the evil tendency of the opposite vices. R. S. c. 23, § 7. 2. It shall be the duty of the resident ministers of the gospel, the selectmen, and the school committees, in the several towns, to exert their influence, and use their best endeavors, that the youth of their towns shall regularly attend the schools established for their instruction, lb. §8. 3. If any towns shall refiise or neglect to raise money for the support of schools, as required by R. S. c. 23, such town shall forfeit a sum, equal to twice the highest sum, which had ever before been voted for the support of schools therein ; and, if any town shall refuse or neglect to choose a school committee to superintend said schools, or to choose, for the purposes mentioned in said chapter, prudential committees in their several districts, when it is the duty of the town to choose such prudential committee, such town shall forfeit a sum not less than one hundred dollars, which shall be'paid into the treasury of the county; and one fourth thereof shall be for the use of the county, and three fourths thereof shall be paid by the county treas- 25* 294 TOWN OFFICES. urer to the school comiAittee of such town, if any, and if not, to the selectmen of the town, for the support of schools therein. lb. § 60. 4. Every such school committee, or board of selectmen, shall forthwith receive, from the treasurer of the county> any money so payable to them, and shall apportion and appropriate the same, to the support of the schools of such town, in the same manner it should have been appropriated, if it had been regularly -raised by the town for that purpose. lb. § 61. 5. Nothing contained in R. S. c. 23, shall affect the right of any corporation, which is or may be established in any town, to manage any estate or funds, given or obtained for the purpose of supporting schools therein, or, in any wise, to affect any such estate or funds ; but such corporate powers and such estate and funds shall remain, as if these provisions had not been enacted, lb. § 59. 6. Whenever a suitable place shall have been designated by any town or school district, for the erection of a school house and necessary buildings, agreeably to the provisions of the title " School Districts," and the owner of the land shall refuse to sell the same, or shall demand therefor a price which, in the opinion of ^the selectmen, is unreasona- ble, the said selectmen, with the approbation of the town, may proceed to select at their discretion a school house lot, and lay out the same, not exceeding in quantity forty square rods, and to appraise the damages to the owner of such land, in the same way and manner as is provided for laying out townways and appraising damages sustained thereby ; and, upon payment, or tender of payment, of the amount of such damages, by the town or district designat- ing such school house lot, to the owner thereof, .the said land shall be taken, held, and used; for the purpose for which it is designated. St. 1848,,c. 237, § 1. 7. The provisions of the two hundred aod thirty-seventh GENEEAL SROYISIONS. 295 chapter of the acts of the year one thousand eight hundred and forty-eight, are hereby so far extended that land may be taken, under the provisions of the said act, in the mode and subject to the remedies in said act contained, for the pur- pose of enlarging any school house lot ; provided that the area of such school house lot, including the land so taken> shall not thereby exceed in quantity forty square rodss -Sif. 1851, c. 186. 8. The quantity of land that may be taken for a school house lot in the discretion of the selectmen of any town, with the approbation of said town, is hereby extended to so much as it may be necessary to cover with the build- ings, in addition to the forty square rods prescribed in the act passed May 1, l848j chapter 237. St. 1853, c. 347. 9. The provisions of the act authorizing towns to take lands for school houses, passed on the first day of May, in the year eighteen hundred and forty-eight, are hereby ex- tended so as to embrace all cases in which the selectmen shall have determined where a school house is to be placed, in pursuance of the provisions of the thirtieth section of the twenty third chapter of the Revised Statutes. Stat. 1«53, c. 149. 10. Whenever the owner of such land shall feel aggriev- ed by the selection and location of such lot, and the damages awarded, he shall be entitled to have the matter of com- plaint tried by a jury, which may be applied for within one year after the location of such lot, and shall be ordered, accordingly by the county commissioners ; and the jury shall have the power to change the location, and assess the damages, and the proceedings shall, in all respects, be con- ducted in the same manner as is provided in cases or dam- ages by laying out highways ; and if the damages shall be increased, or the location be changed, by the jury, the damages and all charges shall be paid by the town or dis- trict for whose benefit the lot is selected, otherwise the 296 TOWN OITICEE. charges, wMch. may arise on such application, shall be paid by such applicant. And the land so taken shall be held and used for no other purpose than that contemplated in this act, and shall revert to the owner, his heirs or as- signs, upon the discontinuance thereon, for one year, of such school as is now, or may hereafter be, required of the town or district by law. Ih. § 2. SELECTMEN. 5. Penalty for acting before taking the oath of office. 6. Vacancies, occasioned hy failure to elect, or refusal to act, how flUed. 7. Limitation on the authority of se- lectmen. 1. How chosen and qualified. 2. To be assessors of taxes if others are not chosen, and to talce assessors' oath. 3. To be overseers of the p^oor if others are not chosen. 4. TolDC the board of health if others are not chosen. 1 . The Selectmen are to be chosen at the annual meet- ing, by written ballots, and to be sworn to the faithful dis- charge of the duties of their office. See ante pp. 22 & 23. 2. Selectmen are to be assessors of taxes when other persons are not specially chosen to that office, and shall take the assessors' oath. E. S. c. 15, §§ 52 & 53. 3. Selectmen are to be overseers of the poor when other perscJns are not chosen to the office. Ih. § 52. 4. In case a town shall not cboose any board of health or health officer, the selectmen shall be the board of health. R. S. c. 21, § 1. • 5. Every person, elected to the office of selectman of any town, who shall enter upon the performance of the duties of his office before taking the oath of office, shall forfeit to the use of his town, a sum not exceeding one hundred dollars for each offence. R. S. c. 15, § 54. 6. Whenever any town at their annual meeting shall fail to elect a full board of selectmen, or whenever a part of the selectmen chosen shall refuse to act, or omit to be qualified according to law, the selectmen, or selectman i)XrTiES of SELECTMEN AS TO JTTEOES. 29*7 chosen and qualified may sign warrants for town meetings until a full board shall be elected ; and any town may, at LL meeting held subsequently to the annual meeting, elect selectmen to fill any vacancy which may exist in the board* Stat. 1855> c. 8* 7. Selectmen have no authority by virtue of their office merely, to make a contract in behalf of a town, for the hiring of a building for the purpose of holding town meet- ings in it. 12 Met. 26. I. DUTIES OF SELECTMEN AS TO JUKORS. 1. Qualifications of jurors. 2. Persons exempted from serving. 3. Selectmen to prepare lists of per- sons qualified. 4. Lists, subject to approval and al- teration by the town. 5. Lists of jurors to be posted up ten days. 6. City councils to have the same pow- er of revision as towns. 7 . Names to be put into a box. 8. Name of a person convicted, Ac. to be withdrawn. 9. Jurors to be selected by drawing their names. 10. Names, when and how to be drawn. 11. When grand jurors are drawn at the same time with jurors for trials. 12. May be drawn in town meeting. 13. Date of each draft to be indorsed on the ballot. 14. No person liable to serve more than once in three years. 15. Clerks to issue writs of venire 16. Jurors to be equally apportioned. 17. Venires, how distributed and served. 18. Jurors, at what time to be drawn, 19- Jurors to be summoned and venire returned by con stable. 20. Additional venires may be issued in term time. 21. Fines on jurors neglecting to at- tend. 22. Special provisions for Nantucket and Dukes county. 23. Not less than fifteen nor more than twenty jurors to be returned, Ac. 24. Jurors how obtained in Duke's county when the inhabitants of any town therein are disqualified. 25. Fines on officers and others for neglect. 26. Same in cases of highways, mills, &c. 27. Punishment for fraud in drawing jurors, 28. Jury for alteration of highways or estimation of damages occasioned by laying out the same. 29. Meaning of three nearest towns. 30. Notice to jurors need not be served by constable. 31. Penalty for non-attendance. 32. Jury to assess damages for flow- ing lands and laying out turnpikes and rail roads. 33. Jury on commitments to State Lunatic Hospital. 34. Jury on discharge of incurable lunatics, &c 35. Jury on commitment of lunatics not furiously mad. 36. Before justices of peace Ac, jury of six to be summoned on demand of either party. 37. Oath of jtuy. Foreman. 38. Manner of trial. 39. Sherifi* or constable to attend trial. His compensation. 40. Talesman. 41. R. S. c. 95 extended to such trials. 42. Fees of jurors and of oflScers to be paid by county. 43. Fees of justice. 44. Exemption of Jurors. 45. Fees of Jurors. 1 . All persons who are qualified to vote in the choice 298 TOWN orFiCEfi. of representatives in the general court,, shall be liable to be drawn as jurors, except as is hereinafter provided. R. S. c. 95, § 1. 2. The following persons shall be exempted from serv- ing as jurors, to wit : The governor, lieutenant governor, members of the council, secretary and treasurer of the Commonwealth, all judges and justices of any court, except justices of the peace, all county and special commissioners, clerks of courts, registers of probate, and registers of deeds, sheriffs and their deputies, cQEP.ners, constables, and criers of the courts, marshals d|.~TOeMJnited States and their deputies, and all other offic^i-M'^the United States, counsellors and attorneys at law, settled ministers of the gospel, offi- cers of colleges, and preceptors and teachers of incorporated academies, practising physicians and surgeons regularly licensed, cashiers of incorporated banks, and constant fer- rymen, and all persons who are more than sixty-five years old. Ih. § 2. No member of the Senate or of the House of Repre- sentatives, or the officers of either of those branches shall during the session of the general court, be required to perform the duty of a juror. Slat. 1838, c. 21. All members of the fire department, in the city of Boston, shall be exempted from serving as jurors ; and all engine men and members of the fire departments, in other towns, may be exempted by thflir respective towns, by vote at any legal town naeeting. B,. S. c. 95, § 3. All members of the active volunteer militia shall be en- titled to exemption from duty as jurymen, in all cases by pleading and proving the fact, by their own oath in court, or by leaving a certificate of the fact, duly certified by the commanding officer of the company, or any general, or field officer of the line or staff, vdth the authorities of the town, or city, in which they reside, who may be entrusted DUTIES OP SELECTMEK AS TO JTTBOBS. 299 ■with the drawing of jurymen ; and said authorities shall upon receipt of such certificate exclude the name of such active members from tlie jury box. Stat. 1849, c. 218, § 8. The members of the ancient and honorable Artillery Company shall be exempted from jury duty. Stat. 1851, c. 204. 3. The selectmen of each town shall prepare a list of such inhabitants of the town, not exempted as aforesaid, as they shall think well qualified to serve as jurors, being persons of good moral character, of sound judgment, and free from all legal exceptions, which list shall include not less than one for every one hundred inhabitants of the town, and not more than one for every sixty inhabitants, computing by the then last census. Ih. § 4. 4. The list, when so prepared, shall be laid before the town, and the town may alter it, by adding thereto the names of any persons liable to serve, or by striking any names therefrom, lb. § 5. 5. The lists shall be c refully prepared and revised once in each year, and posted up in public places in the town or city, by the selectmen or mayor and aldermen of the towns or cities for which they are prepared, ten days, at least, before they are to be submitted to them for revision and acceptance. Stat. 1855, c. 167, § 1. 6. The lists of jurors now required to be prepared by the mayor and aldermen of cities, shall be submitted to the respective city councils, and they shall have thesame power to revise and accept them that belongs to towns. Stat. 1855, c. 167, § 2. 7. The select«ien shall cause all the names, borne on the said list, to be written, each on a separate paper or ballot, and shall roll up or fold the ballots, so as to re- semble each other as much as possible, and so that the name written thereon shall not be visible on the outside ;' 300 TOWN OFFICEE. and ttey shall place the ballots in a box, to be kept by the town clerk for that purpose, lb. § 6. 8. If any person, whose name is so placed in the jury box, shall be convicted of any scandalous crime, or be guilty of any gross immorality, his name shall be with- drawn from the box by the selectmen, and he shall not be returned to serve as a juror. Ih. § 7. 9. All jurors, whether required to serve on a grand jury, or a traverse jury, or by force of the laws relating to high- ways or mills, or any other occasion, except a coroner's inquest, shall be selected by drawing balloia from the said box, and the persons, whose names are borne on the ballots, so drawn, shall be returned to serve as jurors. /&. §8. 10. When any jurors are to be so drawn, the town clerk and selectmen shall attend at the clerk's office, or at some other public place appointed for that purpose, and if the town clerk is absent, the selectmen may proceed without him ; and the ballots in the jury box shall be shaken and mixed together, and one of the selectmen shall openly draw therefrom as many ballots-, without seeing the names written thereon, as shall be equal to the number of jurors required ; and if any person so drawn is exempted by law, or is unable, by reason of, sickness, or absence from home, to attend as a juror, or if he shall have served as a juror in any court, within three years then next preceding, his name shall be returned into the box, and another shall be drawn in his stead. 7 J. § 9. 11. Whenever grand juJors shall be drawn at the same time with jurors for trials, the persons, whose names are first drawn, to the number of grand jurors required, shall be returned as grand jurors, and those afterwards drawn shall be the jurors for trials. R. S. c. 136, § 3. 12. Any town may, at a legal meeting, order that all ' drafts for jurors in such town, shall be made in open town DUTIES OP SELECTMEN AS TO JTJBOKS. 301 meeting, in wMch. case, the draft shall be made by the selectmen, in the manner prescribed in the preceding sec- tion, except that it shall be done in a town meeting, to be notified and warned, in such ' manner as shall be ordered by the town, or otherwise prescribed by law. S. S. c. 95, § 10. 13. When any person is drawn and returned to serve as a juror in any court, the selectmen shall indorse on the ballot the date of the draft, and shall then return it into the box, and whenever there is a revision and renewal of the ballots in the box, the selectmen shall transfer to the new ballots the date of aU the drafts, made within three years then next preceding. lb. § 11. 14. No person shall be liable to serve as a juror in any court oftener than once in three years, but he shall not be exempted by reason of having been drawn, unless he shall actually attend and serve as a juror, in pursuance of the draft. J6. § 12. 15. The clerks of the several courts shall, in due season before every term, or at such other times as the respective courts shall order, issue writs of venire facias for jurors, and shall therein require the attendance of the jurors, on such day of the term as the court shall order, lb. § 13. 16. The clerks, in issuing the venires, shall have regard to the number of inhabitants in the several towns, and shall require from each town a number of jurors, as nearly as may be in proportion to their respective numbers, so as to equalize as far as possible the duty of serving as ju- rors, lb. § 14. 17. The venires shall be delivered to the sherifi" of each county, and by him transmitted to a constable in each of the towns to which they are respectively issued, and they shall be served by the constable without delay on the se- lectmen and town clerk ; and if the town shall have or- dered that jurors shall be drawn in open town meeting, the 26 302 TOWN OFFICBE. selectmen shall cause a town meeting to be warned for that purpose. lb. § 15. 18. The meeting for drawing jurors, whether the draft be made in town meeting, or before the selectmen and town clerk only, shall be held not less than seven days and not more than twenty-one days, before the day when the jujors are required to attend. Ih. § 16. 19. The constable shall four days at least before the time when the jurors are required to attend, summon each person who is drawn, by reading to him the venire, with the indorsement thereon of his having been dravra, or by leaving at his place of abode a written notification of his having been dr4wn, and also of the time and place of the sitting of the court, at which he is to attend, and shall make a return of the venire, with his doings thereon, to the clerk, before the opening of the court from which it was issued. lb. § 17. 20. Nothing contained in the preceding sections shall prevent any court from issuing venires in term time, for additional jurors, whenever it shall be found necessary, for the convenient despatch of their business ; in which case, the venires shall be served and returned, and the jurors shall be required to attend, on such days as the court shall direct. iJ. § 18. 21. If any person, duly drawn and summoned to attend as a juror in any court, shall neglect to attend, without any sufficient excuse, he shall pay a fine not exceeding forty dollars, which shall be imposed by the court, to which the juror was summoned, and shall be paid into the county treasury. 75. § 19. 22. The inhabitants of the counties of Nantucket and Dukes county .shall be liable to be drawn and to serve as jurors, once in every two years ; and the lists of persons, liable to serve as jurors in the several towns in Dukes county, may include one for every thirty of the inhabitants thereof respectively. lb. § 38. BtrllES OF SELECTMEN AS TO JUBOES. 303 23. The clerk of the court of common pleas for the county of Dukes, shall issue at the time required by law writs of venire facias for not less than fifteen nor more than twenty three grand jurors to be returned to that court. And the grand jurors so summoned and attending and not less than twelve in number shall perform the duties of the grand jury for said county. Stat. 1840', c. 74. 24. In any suit now pending, or which may hereafter be brought in the county of Dukes, wherein the inhabit- ants of any town in said county are disqualified by law from acting as jurors, any justice of the Court of Com- mon Pleas in which such action may be pending, as well in term sime as in vacation, may issue an order to the clerk of said court to issue writs of venire facias, for a suf- ficient number of jurors to try such causes, from any town whose inhabitants are not so disqualified ; and the clerk shall issue his venire facias accordingly Stat. 1852, c. 75. 25. When by a neglect of any of the duties required in this chapter, to be performed by any of the officers, or per- sons herein mentioned, the jurors, to be returned from any place, shall not be duly drawn and summoned to attend the court, every person guilty of such neglect shall pay a fine not exceeding twenty dollars, to be imposed by the same court, to the use of the county in which the ofience is committed, lb. § 39. 26. If such neglect shall occur with regard to any jurors who may be required to serve on any other occasion than as jurors in the supreme judicial court, the court of com- mon pleas, or the municipal court, the sherifi" or other of- ficer, before whom the jurors were required to appear, shall make known the fact to the court of common pleas, then next to be held in the same county, and the court after due examination and a hearing of the parties who are charged, shall impose the fine. 75. § 40. 27. If -any town clerk, selectman, mayor, alderman, or 304 TOWN OFFICEB, clerk of the city of Boston, shall be guilty of any fraud, either by practising on the jury box previously to a draft, or in drawing a juror, or in returning into the box the hame of any juror which has been lawfully drawn out, and drawing or substituting another in his stead, or in any other way in the drawing of jurors, he shall, on conviction thereof, be punished by a fine not exceeding five hundred dollars, to be paid to the use of the county in which the ofi'ence is committed. Ih. § 41. 28. The twenty-fourth chapter of the revised statutes provides that any party aggrieved by the doings of the commissioners either in laying out, altering or discontinu- ing any highway, or in the estimation of his damages oc- casioned thereby, may have a jury to determine the mat- ter of his complaint. The ofiicer who receives the war- rant for a jury shall, in writing, require of the selectmto of the three nearest towns not interested in the question, (if there be so many in the county,) to return a number of jurors, not less than two, nor more than six, from any one town, unless in case of necessity ; and the jurors shall he drawn, summoned and returned, as in other cases, ex- cepting that the jurors need not be summoned more than twenty-four hours before the time appointed for their at- tendance. R. 5'. e. 24, §§ 13 & 19. 29. The " three nearest towns not interested," means the three towns nearest to the town in which the land lies over which the highway is laid out. 13 Met. 316. 30. It is not necessary that notice to jurors who are drawn to assess damages caused by the laying out of a high- way or rail road should be served by a constable, such no- tice may be served by the officer to whom the warrant for summoning a jury is directed. 13 iWei. 316. , 31. If any person so summoned as a juror shall fail to attend, without r-ufficient cause, he shall pay a fine not ex- ceeding ten dollars, at the discretion of the court, to DTITIES OP SELECTMESr AS TO JTTEOIIS. 305 which the verdict shall be returned, to be pasid into the county treasury. Ih. § 20. 32. Jurors for assessing damages for flowing lands, and laying out turnpike and rail roads, are to be drawn, summoned and returned, in the same manner as jurors, for assessing damages in laying out highways, and jurors are required to attend under the same penalty. R. S. c. 116, § 13. 33. The Judges authorized by the forty-eighth chapter of the revised statute^, and the statutes of 18'39, c. 149, to commit lunatics to the State lunatic hospital whenever request for that purpose shall be made by the person com- plained against, shall issue a warrant to the sheriif or any deputy of the sheriff, in their respective counties, directing the sheriff or deputy to summon a jury of six lawful men, to hear and determine the question whether the per- son complained against is so furiously mad as to render it manifestly dangerous to the peace and safety of the com- munity that such person should be at large. The Jurors shall be selected in equal numbers from the tovsm in which the trial shall be had, and one adjoining town, or from two adjoining towns, as the judges aforesaid respectively shall direct, and the same proceedings shall be had in selecting and empannelling said jury, as in cases of juries summoned to determine complaints as to high- ways ; provided, that in the counties of Suffolk and Nan- tucket all the jurors may be taken from the same town. Slat. 1837, c. 228, § 112. See, also, § 25 of this title, and %\of title " Lunatic Paupers." 34. On a petition for the discharge of a lunatic from the state hospital as incurable, or his recommitment under the provisions stated in the seventh and eighth sections of the title " Lunatic Paupers," any person interested in the questions of discharge or recommitment, may have a jury of six lawful men to determine the same, selected andsum- 26* 306 TOWN OFFICER. moned as is required in the preceding section. Stat. 1839, c. 149, § 1 & 2. 35. Upon an application to two justices of tlie peace, one of wtom shall be of the quorum, for the confinement of a lunatic not furiously mad, the person complained against may have a jury of six lawful men, to determine the question of his insanity selected in the manner stated in section 28. Stat. 1836, c. 223. Stat. 1838, c. 73, § 1 & 2. See, also, § 12 of title " Lunatic Paupers." 36. Either party to any civil action wherein the debtor damage demanded exceeds twenty dollars, and all actions of replevin wherein the property alleged to be detained doesi not exceed in value one hundred dollars, before any jus- tice of the peace or justice of any Police or Justice's Court, may, on the return day of the writ, demand a trial by jury, and the justice shall thereupon issue a writ of venire facias, directed to the sheriff of the county or any of his deputies, or any constable of the town or city, in which the court is held, requiring the attendance of six jurors from the said town or city, at such place in said town or city, and at such day and hour as he may think best, not exceeding twenty-one days from the date of the said writ of venire facias, and the same proceedings shall be had in regard to drawing and summoning jurors as in other cases, except that it shall be sufficient to summon the jury two days be- fore the trial, and the jury so summoned may try any number of cases before the said justices, but shall not be detained more thaij fourteen days, except to finish a ease commenced within that time, and judgment shall be en- tered according to the verdict of the jury. Stat. 1852, c. 314, § 2. 37. The jury shall consist of six persons, who shall be sworn by the justice and empanelled, and shall then choose a foreman by ballot. Stat. 1852, c. 314, § 3. 38. The trial by jury shall be had before the justice, in DUTIES OF SELECT^iES AS TO JTTEOB.S. 307 the same manner, as nearly as may be, as trials are now had before the Court of Common Pleas and Supreme Ju- dicial Court. Stat. 1852, c. 314, § 4. 39. A sheriff or constable shall always attend jury tri- als before a justice, and said officer shall attend on the jury when they retire to make up their verdict, and his fees shall be one dollar a dfty for his attendance, and such other sum, not exceeding two dollars a day, for the use of rooms to hold the court in, as he may have to pay, to be allowed by the justice. Stat. 1852, c. 314, § 5. 40. When, by reason of challenge or otherwise, a suf- ficient number of jurors, duly drawn and summoned, can- not be obtained for the trial of any cause, the justice shall cause jurors to be returned from the bystanders or the town to complete the panel, which jurors shall be re- turned by the sheriff or constable Stat. 1852, c. 314, §6. 41. The provision of chapter ninety-five of the Re- vised Statutes, so far as applicable, shall extend to jurors and trials before justices of the peace and justices of Po- lice Courts. Slat. 1852, c. 314, § 7. 42. The fees of the jurors, under this act, shall be one dollar and twenty-five cents for every day's attendance, and six cents for every mile's travel out and home ; and ths same, as well as the fees of the officer who summons the jury and attends on the court, including the charge for rooms to hold the court in, shall be certified by the justice or h?s clerk, and paid by the county treasurer. Stat. 1852, c. 314, § 8. 43. The justice who tries any case where there is a trial by jury, if not paid by a salary, shall receive for the trial of each case one dollar and fifty cents from the plain- tiff, which sum shall be taxed in the bill of costs. Stat. 1852, c. 314, § 9. 44. No person shall be exempted from serving on a jury 308 TOWN OFPICEE. in tte Supreme Judicial Court or Court of Common Pleas, in consequence of his having served as a juror before any justice of the peace, or in any Justices' or Police Court ; and no person shall be compelled to serve as a juror be- fore any justice of the peace or Justices' or Police Court more than twenty-four days in any year. Stat. 1852, c. 314, §10. 45. The fees of jurors are as follows : to each person attending as a grand juror or traverse juror, in any court except before a justice of the peace, or police court, two dollars a day for his attendance, and eight cents a mile for his travel out and home ; and to each person attending as a juror, before a sheriff or coroner, or on any other occa- sion prescribed by law, one dollar and twenty-five cents a day for his attendance, and six cents a mile for his travel out and home. R. S. c. 122, § 10. Stat. 1855, c. 120. II. DUTIES OF SBLECTMEN AS TO SPENDTHRIFTS AND INSANE PERSONS. 1. ConBtruction of the words, " in- sane person," and " spendthrift." 2. Gruardlan of spendthrift, how ap- pointed. 3. Objectoftheappointmenlof guar- dian. 4. Fourteen days notice to be given to spendthrift. 5. Contracts of the spendthrift pend- ing and proceedings taken void. 6. Power and duty of the guardian of a spendthrift. 7. Guardian of an insane person, how appointed. 8. Power and duty of such guar- dian. 9. Expenses of the insane person or spendthrift in opposing. 10. Assessors ^ act instead of select- men in certaijn cases. 11. Commiiment of lunatic paupers to hospital. 1. The words "insane person," are intended to include every idiot, non compos, lunatic and distracted person, and the word " spendthrift," is intended to include every one who is liable to be put under guardianship on account of excessive drinking, gaming, idleness, or debauchery ; and these words shall be so construed in all the provisions re- lating to guardians and wards. S. S. c. 79, § 34. 2. When any person by excessive drinking, gaming, DUTIES OF SELECTMEN, &C. 309 idleness or deiiaiichery of any kind, shall so spend, waste or lessen his estate, as to expose himself or his family, to want or suffering, or to expose the town to charge or ex- pense, for the support of himself or his family, the select- men of the town of which such person is an inhabitant, or in which he may reside, or upon which he is or may become chargeable, may present a complaint to the judge of probate, setting forth the facts and circumstances of the case, and praying to have a guardian appointed for him. Ih. § 11. Stat. 1846, c. 249. 3. Where the selectmen, having filed a complaint for the appointment of a guardian, relinquished the proceedings in consideration of a bond and mortgage given them by the spendthrift with condition to indemnify the town from expense on account of himself and his family, it was held that the bond and inortgage were void ; for the object of the appointment of guardian to a spendthrift, is to restrain him from a course of vicious excesses by taking from him the means of indulging in them, and thus to save both him- self and family, from distress and ruin, as well as to save the town from the expense of their support. 12 Pick. 152. 4. The judge of probate shall cause notice to be given to such supposed spendthrift, of the time and place ap- pointed for hearing the case, not less than fourteen days before the time so appointed ; and if, after a full hearing, it shall appear to the judge that the person complained of comes within the description contained in the second sec- tion, he shall appoint a guardian of his person and estate, with the powers and duties hereinafter specified. R. S. c. 79, § 12. 5. After the order of notice has been issued, the com- plainants may cause a copy of the complaint, with the or- der of notice, to be filed in the registry of deeds for the county ; and if a guardian shall be appointed upon such 310 lOWN OFFICEE. application, all contracts excepting for necessaries, and all gifts, sales, or transfers of real or persor.al estate, made by such spendthrift, after such, filing of the complaint in the registry of deeds, and before the termination of the guar- dianship, shall be null and void. /S. § 13. 6. A guardian to a spendthrift, is to have the manage- ment of all his ward's estate, and the care and custody of his person. Ih. § 13. 7. When the relations or friends- of any insane person, or the selectmen of the town, of which such person is an inhabitant, or in which he resides, shall apply to the judge of probate to have a guardian appointed for- him, the judge shall cause notice to be given to the supposed insane per- son of the time and place appointed for hearing the ease, not less than fourteen days before the time so appointed ; and if, after a full hearing, it shall appear to the judge that the person in question is incapable of taking care of himself, the judge shall appoint a guardian of his person and estate, lb, § 9 . 8. The powers of the guardian of an insane person are the same as those of the guardian of a spendthrift. Ih. § 10. 9. When a guardian shall be appointed for an insane person, or a spendthrift, the judge sliall make an allowance, to be paid by the guardian, for all reasonable expenses in- curred by the ward in defending himself against the com- plaint. Ih. § 14. 10. When any insane person, or any person liable to be put urfder guardianship, as a spendthrift, shall reside on lands not included within any incorporated town or city, all the acts authorized or required to be done, respecting , the guardianship' of such person, by the selectmen, shal\ and may be done by the assessors of the district or tract of land, on which such person resides, if there be any such assessors, and if not, by the selectmen of the oldest ad- joining town in the same county. Ih. § 15. DTTTIES OF SELECTMEN, &C. 811 1 1 . When an application is made for the commitment of a lunatic to the state hospital under the provisions of chap- ter forty-eight of the revised statutes, notice in writing of the intention to make such application must be given to one or more of the selectmen of the town where such lunatic resides. B. S. c. 48, § 7. m. DUTIES OF SELECTMEN UNDER LAWS CONCERNING THE MANUFACTURE AND SALE OF SPIEITOUS AND INTOXICATING LIQUORS. i. Persons illegally selliog &c. to be arrested without warrant and detained with liquors, vessels, &c., until warrants can be procured. Duty of ofBcers. 5. Duty of officers -to seize liquors kept or sold at places of public gather- ing, arrest keeper and make complaint. 1. Appointment, salary .tc of town agents. 2. Agents to be fiimished with cer- tillcate of authority and to give bond. Form of bond. 3. County Commissioners, Mayors, Selectmen to revoke authority of persons breaking their bonds, and put bonds in suit. 1. The selectmen of any town, and the mayor and alder- men of any city, on the first Monday of May annually, or as soon thereafter as may be convenient, may appoint some suitable person or persons, as agent or agents of such city or town, to purchase spiritous or intoxicating liquors, and to sell the same at some central or convenient place or places within said city or town, to be used in the arts, or for medicinal, chemical, and mechanical purposes, and no other ; and every such agent shall receive such fixed and definite salary, not dependent in amount upon the sales, for his services, as the board appointing him shall prescribe, and shall, in the sale of such liquors, conform to such rules and regulations as the selectmen or mayor and aldermen aforesaid shall prescribe for that purpose ; and every such agent shall hold his situation for one year from the time of his appointment, unless sooner removed by the board which appointed him, as he may be, at any time, at the pleasure of said board : provided, that the selectmen of every tovm 312 TOWN OFFICEE. containing not less than one thousand inhabitants, and the mayor and aldermen of every city, shall appoint at least one such agent every year, under the penalty of for- feiting the sum of one hundred dollars for peglecting to make such appointment for tlje space of tnree months after they have entered upon their respective offices, to be recov- ered in an action of tort brought in the court of common pleas by any person who may sue for the same, one-half for his own benefit, the other half for the benefit of the commonwealth. ^55!. 1855, c. 215, § 5. 2. Every agent, appointed as aforesaid, shall receive a certificate from the mayor and aldermen or selectmen by whom he may be appointed, authorizing him, as agent of such city or town, to purchase intoxicating liquors to be used in the arts, or for medicinal, chemical and mechanical purposes only, and to sell the same for such purposes, and no other, at such place within their respective town or city as by them shall be deemed suitable, which place shall be designated with precision in said certificate ; but such cer- tificate shall not be delivered to the person so appointed until he shall have executed and delivered to said board a bond, with two good and sufficient sureties, in the sum of six hundred dollars, in substance as follows : — . Know all men that we, , as principal and and , as sureties, are hclden, and stand firmly bound to the inhabitants of the town of , (or city as the case may be,) in the sum of six hundred dollars-, to be paid unto them, their successors or assigns, to which payment we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , A. D. . The condition of this obligation is such, that, whereas the above bounden has been duly appointed an agent for the town (or city) of to purchase intoxicating liquors, and to sell the same within, for, and on account of said DUTIES OP SELECTMEN, &C. 313 town, (or city,) to be used in the arts, or for medicinal, chemical and mechanical purposes, and no other, until the day of , A. D. , unless sooner removed from said agency : Now, if the said shall, in all respects, conform to the provisions of law relating to the business for which he is appointed, and to such ndes and regula- tions as now are, or shall from time to time be established by the hoard making the appointment, then this obliga- tion to be void, — otherwise to remain in full force. Stat. 1855, c. 215, § 8. 3. Whenever complaint shall be made to the county commissioners of any county, or to the mayor and alder- men of any city, or to the selectmen of any town, that a breach of the conditions of the bond, given by any person authorized by them to purchase and sell, or to manufacture and sell intoxicating liquors, has been committed, they shall notify the person complained of; and if upon a hear- ing of the parties it shall appear that any breach of such bond has been committed, they shall revoke and make void his authority, and shall, at the expense and for the use of their county, city or town, cause the bond to be put in suit in any court proper to try the same, or they may put such bond in suit without said complaint, notice or hearing. Stat. 1855, c. 215, § 14. 4. Any mayor, alderman, selectman, sheriff, deputy sher- iff, chief of police, or deputy chief of police, city marshal, deputy or assistant marshal, police officer, constable or watchman, in his city or town, may without a warrant, arrest any person or persons whom they may find in the act of illegally selling, transporting, or distributing intoxi- cating liquors, and seize the Kquors, vessels, and imple- ments of sale in the possession of said person or persons, and detain them in some place of safe keeping until war- rants can be procured on complaint made for the trial of said person or persons, and for the seizure of said liquor, 27 314 TOWN OFriCEE. vessels and implements, under the provisions of this act ; and it shall be the duty of the several officers aforesaid to enforce the penalties provided in this act, or cause them to be enforced, against every person who shall be guilty of any violation thereof of which they can obtain reasonable proof. St. 1855, c. 2l5, § 13. 5. It shall be the duty of any mayor, alderman, select- man, city marshal, or deputy marshal, sheriff, deputy sheriff, police officer, or constable, if he shall have infor- mation that any intoxicating liquors are kept or sold in any tent, shanty, hut, booth, stall, or similar place for selling refreshments in any public place on or near the grounds of any cattle show, agricultural exhibition, military muster, or any public occasion of any kind, to seize such liquor and the vessels in which it is contained, and ari'est the keeper or keepers of such place, and take them forthwith, or as soon as may be, before some justice of the peace, or police court, with the liquor and vessels so found and seized, and to make complaint for the arrest and trial of such person or persons, and for the seizure and confisca- tion of such liquors, according to the provisions of this act. Stat. 1855, e. 215, § 31. IV. DUTIES OF SELECTMEN IN ERECTING AND MAINTAIN- ING GUIDE POSTS. 1. Towns to ereet and maintain guide posts. 2. tenalty if selectmen do not an- nually report to the town where posts ought to be maintained. 3. Penalty on towns for not deter- mining places for guide posts. 4. Description of guide posts and where to be erected. 5. Penalty if towns or selectmen neglect to erect guide posts. 6. Penalty (br de&cing guide boards. 1. Every town shall erect and maintain guide posts, on the highways and other ways within the town, at such places as shall be necessary or convenient for the direction of travellers, in the manner hereinafter provided. S. S. e. 25, § 28. DUTIES OF SELECTMEN, &C. 315 '2. The solectmen of each town shall submit to the in- habitants, at every annual meeting, a report of all the pla- ces in which guide posts are erected and maintained with- in the town, ani of all places, at which, in the opinion of the selectmen, they ought to be erected and maintained ; and if the selectmen of any town shall neglect or refuse to make report as aforesaid, they shall severally forfeit the sum of ten dollars. Ih. § 29. 3. Upon the report of the selectmen, made according to the provisions of the preceding section, tiie town shall de- termine the several places, at which guide posts shall be erected and maintained, and a record thereof shall be made in the town records ; and if any town shall neglect or re- fuse to determine said places, and to cause a record there- of to be made as aforesaid, such town shall forfeit the sum of five dollars, for every month during which they shall neglect or refuse so to do ; and in such case, upon any trial for not erecting or maintaining guide posts, reported to be necessary or convenient by the selectmen, such tovsoi shall be estoped from alleging that snch guide posts were not necessary or convenient, lb. § 30. 4. At each of the places determined by the town, as provided in the preceding section, there shall be erected a substantial post of not less than eight feet in hight, near the upper end of which shall be placed a board or boards, and upon each board shall be plainly and legibly painted or othervrise marked, the name of the next town or place and such other to^vn or place of note, as the selectmen shall think proper, to which each of such roads may lead, together with the distance or number of miles to the same ; and also the figure of a hand, with the forefinger thereof pointing towards the towns or places, to which the said roads lead ; provided nevertheless, that the inhabitants of any town may, at the annual meeting, agree upon some suitable substitute for said guide posts. lb. § 31, 316 TOWN OFFICEE. 5. Every town, which shall neglect or refuse to erect and maintain guide posts, or some suitable substitutes therefor, in the manner provided in this chapter, shall for- feit annually the sum of five dollars, for every guide post which they shall so neglect or refuse to maintain, lb. ^ 32. 6. Every person who shall wilfully and maliciously break down, injure, remove or destroy any monument erected for the purpose of designating the boundaries of any town, or of any tract or lot of land, or any tree marked for that purpose, or shall so break down, injure remove or destroy •any mile stone, mile board or guide board, erected upon :any highway or other public way, turnpike or railroad, or shall wilfully or maliciously deface or alter the inscription on any such stone or board, or shall wilfully or maliciously mar or deface any building, or any sign board, or shall •extinguish any lamp, or break, destroy or remove any lamp, or any lamp post, or any railing or posts, erected on any bridge, side walk, street, highway, court or passage, shall be punished by imprisonment in the county jail, "not more than six months, or by a fine not exceeding fifty dollars. lb. § 33. Oh. 126, § 43. DUTIES OF SELECTMEN IN PERAMBULATION OF TOWN LINES. 1. Bounds 'of towns, to remain as now established. 2. Ferambulations and renewal of boundaries, every Ave years, 3. Notice of perambulation to ad- joining towns. — Penalty for neglect to give notice. 4. Bound-stones to be erected ex- cept, &o. 5. Perambulation of bounds ' be- tween towns and unincorporated pla- ces. 6. " of towns adjoining otlier states 7. Penalty for neglect of selectmen. 1. The boundary line of every town shall remain as- now established. i2. iS". c. 15, § 1. 2. There shall be a perambulation of the boundary DUTIES or SELECTMEN, &C. 317 lines between towns, and the lines shall be run and the marks renewed, once in five years, by two or more of tte selectmen of each, town, or such substitutes as they shall in writing appoint for that purpose ; and the proceedings ia the case, after every such renewal, shall be recorded in the town records of the respective towns. Ih. § 2. 3. Previously to any perambulation, the selectmen of the most ancient of the contiguous towns shall give ten days notice, in writing, to the selectmen of the adjoining town, of the time and place -of meeting for such perambulation ; and the selectmen, who shall neglect their duty in giving notice, or in attending, either personally or by their sub- stitutes, shall severally forfeit the sum of twenty dollars, to the use of the town whose selectmen shall perform their duty. Ih. § 3. 4. The selectmen of the contiguous towns shall cause to be erected, at the joint and equal expense of such townsj permanent monuments to designate their respective boun- dary luies, at every angle thereof, except where such Unes are bounded by the ocean or by some permanent stream of water ; and the said m.onuments shall be of stone well set in, and at least four feet high, from the surface of the ground ; and the initial letter of the respective names of said contiguous towns shall be plainly and legibly cut there- on ; provided, however that it shall not be necessary to erect a new monument in any place, where any permanent stone monument already exists, of two feet in height, above the surface of the ground. 7 J. § 4. 6. The selectmen of every town, bordering upon any unincorporated place, shall, once in every five years, give notice to the assessors of such unincorporated place, of their intention to perambulate the lines, between their said towns and places respectively ; and, upon such notice, the said assessors shall perform all the duties, required of se- lectmen in the like case, and be subject to all the penal- 27* 318 TOWN OrFICEK. ties, to be recovered and appropriated in tte same manner, as selectmen in the like case, are subject to. lb. § 5. 6. The selectmen of the several towns of this state, bordering on any other state, in all cases, where the lines between such other states and this state are settled and established, shall, once in every five ye^rs, give notice to the selectmen or other proper municipal ofiicers of such towns in such other states, as adjoin the respective towns of this state, above mentioned, of their intention to per- ambulate the lines between their adjoining towns ; and in all cases where such state lines are now in dispute, such perambulations of the lines between the towns in this state and the adjoining towns of such other states, shall be made, once in every five years, after such state lines shall be settled and established, and, if such notice and propo- sal shall be accepted by the oflScers to whom it is made, a perambulation shall be made of the boundary lines of such towns in the same manner, as between towns in this state ; provided, however, that no boundary, erected by the authority of this state and any such adjoining state, shall be moved by the said selectmen or other municipal officers. Ih. § 6. 7. Any selectman, who shall neglect or refuse to cause the monuments to be erected as aforesaid, or to give notice to the selectmen or other proper municipal officers of towns, in the adjoining states, or to perambulate, if the last-mentioned selectmen or officers consent thereto, shall forfeit the sum of twenty dollars to the use of his county. Jh, § 7. DUTIES OP SELECTMEN, &C. 319 VI. DUTIES OF SELECTMEN AS TO COMMON SEWERS AND DRAINS. 1. Highways, Btreeta, Ac, not to be dug up to lay draina, &:c., without con- sent of the selectmen. 2. Drains, ic, how to be constmcted. 3. FeiBons benefited, to share the expense of making drains, repairing, &c. 4. Same subject. 5. Persons benefited, and refusing to pay their proportions, shall pay double the amount. 6. Notice to be given before opening any drain. 7. Provisions not to affect agree- ments of parties. 8. Selectmen, &c., authorized to lay and repair main drains. Drains to be property of town or city in which they have been or shall be laid. 9. Proprietors of particular drains, that are entered into main drains, to be assessed to pay towu, £c., part of the expense of main drains. 10. Assessments to be a lien for one year, on the real estate assessed, which may be sold for non-payment. 11. Provisions for appeal by persons aggrieved by assessmente. 12. Towns and cities may be charged with part of the expense of main drains. 13. TVhen to take effect. 1 . If any person shall dig or break up tlie ground in any tigWay, street or lane, in any town, for the laying, altering or repairing of any drain, or common sewer, with- out the consent of the selectmen, in writing, he shall for- feit the sum of Ave dollars for each offence, to the use of the town, to be recovered by the treasurer thereof. JR. S. c. 27, § 1. 2. All drains and common sewers, wMch stall hereafter be made or repaired in any street or highway, shall be substantially made or repaired with brick or stone, or with such other materials, and in such manner, as the select- men of the town shall permit or direct, lb. §-2. 3. When any person shall, by the consent and under the direction of the selectmen, at his own charge, make and lay any common sewer or main drain, for the benefit of himself and others, who may think fit to join therein, every person, who afterwards shall enter his particular drain into the same, or by any mote remote means shall receive any benefit thereby, for the draining of his cellar or land, shall pay to the owners of such common sewer or main drain, a proportional part of the charge of making and repairing the same, to be ascertained by the selectmen of the town, and certified under their hands ; saving 320 TOWN OFFICEB. always to tlie party aggrieved by any such determination, a right to appeal to the county commissioners. Ih. § 3. 4. When any common sewer or main drain shall be stopped or gone to decay, so that it shall be necessary to open the same, in order to repair it, or to remove such stoppage, all the persons who shall be benefited by such repair or removal of obstructions, as well those who do not as those who do, cause such repairs to be made or ob- struction to be removed, shall pay to the person incurring the expense, their proportional parts thereof, to be ascer- tained and certified by the selectmen as aforesaid ; saving to the party aggrieved an appeal as provided in the pre- ceding section. 7S. § 4. 5. Every person so required to pay his proportional part of the expense of making or repairing any drain or com- mon sewer, shall have notice of the sum, and of the per- son to whom the same is to be paid ; and if he shall not pay the same within seven days after such notice, to the person authorized by the selectmen to receive it, he shall be held to pay double the amount certified by the select- men as aforesaid, with all expenses arising from such neg- lect ; and the person so authorized by the selectmen may recover the said double amount and expenses, in an action in his own name for money laid out and expended. Ih. § 5. 6. Any person, who shall have occasion to open a com- mon sewer or main drain, in order to clear and repair the same, shall, seven days at least before he begins to open the same, give notice to all parties interested, by advertis- ing in such manner as the selectmen may direct, that such parties may, if they think proper, object thereto, and state their objections in person, or in writing to the selectmen ; and if the selectmen shall judge the objections reasonable, the parties making the same shall not be held to pay any part of such expenses ; but if they do not make their ob- jections as aforesaid to the selectmen, within three days DrTIES OP SELECTMEN, &C. 321 after such notice, or if the objections shall not be adjudged reasonable, the selectmen shall, in writing, under their hands, give liberty to the persons applying, to open such common sewer or main drain, and to clear and repair the same ; and all persons interested therein shall pay their proportions as before provided. lb. § 6. 7. Nothing contained in the above provisions shall in any manner affect any covenants or agreements among the proprietors of such drains or common sewers, lb. § 7. 8. The selectmen of the several towns, and the mayor and aldermen of the several cities in the Commonwealth, may lay, make, maintain and repair all main drains or com- mon sewers in their respective towns and cities ; and all the main drains or common sewers which have heretofore been or which may hereafter be constructed by any town or city, shall be taken and deemed to be the property of such town or city. Stat. 1841, c. 115, § 1. 9. Every person who may hereafter enter his particular drain into any main drain or common sewer so constructed as aforesaid, for the draining of his cellar or land, or in obedience to the by-laws or ordinances of the town or city, or who, by any more remote means, shall receive any ben- efit thereby, for draining his cellar or land, shall pay to (he town or city a proportional part of the charge of mak- ing and repairing such main drain or common sewer, to be ascertained and assessed by the selectmen in case of towns, and by the mayor and aldermen in case of cities, and by them certified, and notice thereof given to the party to be charged, or his tenant or lessee, lb. § 2. 10. And all assessments so made shall constitute a lien on the real estates assessed, for one year after they are laid, and may, together with all incidental costs and ex- penses, be levied by sale thereof, if the assessment is not paid within three months after a written demand of pay- ment, made either upon the person assessed, or upon any 322 TOWN OFFICER. person occupying the estate ; such sale to be conducted in like manner as sales for the non-payment of taxes. lb. § 3. 11. Any person, who may deem himself aggrieved by any such assessment, may, at any time within three months from receiving notice thereof, appeal to the county com- missioners, or if the case arise in the city of Boston or in the town of Chelsea, to the court of common pleas, which court, in such case, shall appoint three disinterested per- sons, who may be inhabitants of Boston or other town, to settle and assess the share to be charged to such person ; and the said county comm.issioners and referees may ex- amine the parties and any other person, on oath, touching the matter submitted to them, and shall settle and deter- mine the proper amount of charge or assessment; and the said referees, in the case of the city of Boston or the town of Chelsea, shall make return of their doings to the said court of common pleas, and in all cases the decision of said county commissioners and of said referees shall be final ; and in case the assessment made by the selectmen or mayor and aldermen shall not be reduced on such ap- peal, the town or city shall recover costs, but otherwise shall pay coots : provided, however, that in all cases of an appeal as aforesaid, the appellant, before entering it, shall give one month's notice in writing to the selectmen, or mayor and aldermen, of his intention to appeal, and shall therein particularly specify the points of his objection to the assessment made by them, to which specification he shall be confined upon the hearing of the appeal. lb. § 4. 12. Nothing contained in this title shall prevent any town or city from providing, by by-law or ordinance, or otherwise, that a part of the expense of constructing, main- taining and repairing main drains or common sewers shall be paid by such town or city ; and in the city of Boston, not less than one quarter part of such expense shall be paid by said city, and shall not be charged upon those DITTIES OF SELECTMEN, &C. 823 using tlie said main drains or common sewers. iJ. § 5. 13. The provisions contained in the five preceding sec- tions shall not take eiFect in any city or town, nntil they shall have heen accepted by the legal voters of any town, at a meeting called for that purpose, or by the mayor and aldermen, and common council of any city. Ih. § 6. vn. DUTIES OP SELECTMEN AS TO BINDING ORPHAN CHILDREN. 1. Minors how bound. 2. '* how bound when under fourteen years. 3. Minors how bound when abovo fourteen, 4. The insertion of the name of a minor above fourteen in the attestation clause and his execution of ttie instru- ment not sufHcient. 5. To be bound by indenture of two parts. 6. One part to be kept for the minor. 7. Money, Ac, paid I>y any master to be for the use of the apprentice. 8. Apprenticeship discharged by the death of the master. 9. Minor may be bound to a mistress. iO. Selectmen to enquire into the treatment of children bound out with their approbation. 11. In case of neglect or misconduct of master may file complaint Ac. 12. Not liable to cost unless (fee. 1 . All children, under the age of fourteen years, may be bound as apprentices or servants, until that age, and all minors, above the age of fourteen years, may be bound as apprentices or servants, females to the age of eighteen years, or to the time of their marriage within that age, and males to the age of twenty-one years, in the manner prescribed in the eightieth chapter of the Revised Stat- utes. R. S. c. 80, § 1. 2. Children, under the age of fourteen years, may be bound by their father, or in case of his death or incompe- tency, by their mother, or by their legal guardian, and if illegitimate, they may be bound by their mother ; and if they have no parent competent to act, and no guardian, they may bind themselves, with the approbation of the selectmen of the town where they reside. Ih. § 2. 3. Minors above the age of fourteen years, may be bound in the same manner, provided, that when they are 324 TOWN OFFICEK. bound by tbeir parent or guardian, the consent of the mi- nor shall be expressed in the indenture, and testified by his signing the same. Ih. § 3. 4. The insertion of the name of a minor above the age of fourteen years in the attestation clause of an instrument purporting to be an indenture of apprenticeship, and the execution of the instrument by such minor, are not a suf- ficient expression of the consent of the minor to make the instrument a valid indenture of apprenticeship &c. 6 Gush. 417. 6. No minor shall be bound as aforesaid, unless by an indenture of two parts, sealed and delivered by both par- ties ; and when made with the approbation of the select- men, their approbation shall be certified in -writing, signed by them, upon each part of the indenture. Ih. § 4. 6. One part of the indenture shall be kept for the use of the minor, by his parent or guardian, when executed by them respectively ; and when made with the approba- tion of the selectmen, it shall be deposited with the town clerk, and be safely kept in his office for the use of the minor. Ih. § 5. 7. All considerations, of money or other things, paid or allowed by the master, upon any contract of service or apprenticeship, made in pursuance of these provisions, shall be paid or secured to the sole use of the minor thereby bound. lb. § 9.' 8. No indenture of apprenticeship or service, made in pursuance of this chapter, shall bind the minor after the death of his master, but the apprenticeship or service shall be thenceforth discharged, and the minor may be bound out anew. Ih. § 24. 9. Any indenture of apprenticeship or service, made in pursuance of this chapter, by or in beLalf of a minor, may be made either with a woman or a man, and all the foregoing provisions shall apply as well to mistresses as to masters. II. § 25. DUTIES OF SELECTMEN, &C. 325 10. It is the duty of tlie selectmen to inquire into the treatment of children bound with their approbation or that of their predecessors in office, and to defend them from all cruelty, neglect, and breach of contract on the part of their masters. lb. § 10. 11. In case of such misconduct or neglect of the mas- ter, a complaint may be filed by the selectmen in the court of common pleas in like manner as may be done by over- seers of the poor. Ih. § 11. See ante, pp. 172, 173, 174. 12. If the complaint shall not be maintained, the select- men will not be liable to cost unless it shall appear that the complaint was made without any just or reasonable cause. Ih, § 13. Vm. DUTIES OF SELECTMEN AS TO OFFENSIVE TRADES THEATRICAL EXHIBITIONS, &c. 1. To assign places for offensive trades. 2. To assign places for livery stable in maritime towns. 3. Penalty for unauthorized erection or use of stables Ac, bowling alleys-- Injunctions. 4. Act subject to acceptance by city or town. 5. No furnELce for melting iron, or for the making of glass, or steam engine for planing Ac, or in which any other fuel than coal is used, to be erected or used, until license be first granted. 6. Mayor and aldermen or select- men to prescribe rules &c. as to furna- ces or engines heretofore erected or in use ia certain cases. 7. Engine or furnace hereafter erect- ed without license, to be deemed a com- mon nuisance. 8. Proceedings on application for a license for such engine or fUmace. 9. Persons aggrieved by any order under the sixth section may apply to the C. C. P. for a jury, Ac. 10. This act not to be in force in any town or city unless first adopted by the inhabitants. 11. Mayor and aldermen or selectmen may examine steam engines and pro- hibit their use if unsafe. 12. Power of abatement and removal . 13. Power of selectmen with regard to booths used for unlawful purposes or muster fiilds, cattle show grounds, Ac. 14. License from mayor Ac, or se- lectmen to pawn brokers. 15. Form of license. 16. Penalty on unlicensed business. 17. Act may be suspended by city coun cil. Subj ect to acceptance by towns. 18. Burnt, dilapidated, or dangerous buidings adjudged nuisances, aft^r no- tice, may be disposed of by order of may- or Ac. or selectmen. 19. Powers of mayor Ac, or select- men to abate such nuisances. 20. Appeal from order of mayor Ac, to C. C. P. 21. Act subject to acceptance by towns and cities. 22. Power of mayor Ac, or selectmen to license shows Ac, to revoke or sus- pend such licenses. 23. Penalty for exhibiting Ac, with- out a license. 24. Penalty for getting up, promoting Ac, masked balls Ac 1 . Tbe selectmen of every town, and tbe mayor and al. dermen of the city of Boston, respectively, when they shall 28 326 ib-WN OFJicEE. judge it necessary, shall, from time to time, assign pertain places for the exercising of any trade or employment, offen- sive to the inhabitants, or dangerous to the public health; and they shall forbid the exercise of either of them in places not so assigned ; and all such assignments shall be entered in the> records" of the town or city ; and they may be revoked, when the town or city officers shall think proper. B. S. e. 21, § 47. 2. If any person shall occupy or use any building what- ever, in any maritime town, for the business or employ- ment of keeper of a livery stable, except in such parts of the town a& the selectmen thereof shall direct, he shall forfeit a sum not exceeding fifty dollars, ibr every month, during which he shall so occupy or use such building, and in the like proportion for a longer, or shorter time. £. S.c. 58. § 4. Stat.'l&5S, e. 49. 3. If any person shall erect, occupy or use any build- ing, in any city or town, for a stable for more than four horses, or for a bowling alley, except in such parts of such city as the mayor scai aldermen thereof, or of such town as the selectmen thereof shall direct, he shall forfeit a sura not exceeding fifty dollars for every month he shall so occupy or use such building, and in the like proportion for a longer or shorter time. And the supreme judicial court, or any one of the justices thereof, either in term time or vacation, may issue an injunction to prevent such erection, occupancy or use, without such direction. Stat. 1851, c. 319. 4. The provisions of the preceding section shall not be in force in any city unless the city coujacil thereof, nor in any town unless the inhabitants thereof, at a legal meeting shall by vote have adopted the same before the twenty-third of February 1854. Stat. 1863, c. 362. 5. No furnace for the melting of iron (or for the mak- ing of glass, St. 1846, c. 96,) or stationary Steam Engine DUTIES OF SELECTMEN, &C. 327 designed for use in any mill for the planing or sawing of boards, or turning of wood in any form,or when any other fu- el than coal is used to create steam, shall hereafter be erected, or put up to be used, in any .city or town of this Common- wealth, unless the Mayor and Aldermen of such city, or selectmen of such town, shall have previously granted li- cense therefor, designating the place where the building or buildings shall be erected in which such steam engine, or furnace shall be used, the materials and construction there- of, and such other provisions and limitations as to the height of flues, and protection against fire, as they shall judge necessary for the safety of the neighborhood ; such license to be granted on written applications to be record- ed in the records of such city or town. Stat. 1845, c. 197, §1. 6. Whenever the mayor and aldermen of any city, or the selectmen of any town, after due notice in writing to the owner of such steam engine or furnace heretofore erected or in use and a hearing of the matter, shall adjudge the same to be dangerous or a nuisance to the neighborhood, they may make and record an order, prescribing such rules, restrictions, and alterations, as to the building in which such steam engine or furnace is constructed or used, the construction and height of its smoke flues, or other pro- visions as they shall deem the safety of the neighborhood to require, and it shall be the duty of the city or town clerk to deliver a copy of such ord;r to a constable who shall serve such owner with an attested copy thereof, and make return of his doings thereon to said clerk, within three days from the delivery thereof to him. Stnt. 1845, c. 197, § 2. 7. Any svich engine or furnace hereafter erected with- out license, made and recorded as aforesaid in section first sljall be deemed,and taken to be a common nuisance, with- Qut any other proof thereof thq,n proof of its use ; and any 328 TOWN OFFICER. steam engine or furnace used contrary to tiie provisions of section second of this act shall be taken and deemed to be a common nuisance. Stat. 1845, c. 197, § 3. 8. Whenever application shall be made for license as aforesaid, the mayor and aldermen of any city or selectmen of any town, shall assign a time and place for the consid- eration of the same, and shall cause public notice thereof to be given at least fourteen days beforehand, in such man- ner, as said mayor and aldermen or selectmen may direct, and at the expense of the applicant, in order that all per- sons interested may be heard before the granting of a li- cense. Stat. 1845, c. 197, § 5. 9. Any owner of a steam engine or furnace aggrieved by any such order as provided in the sixth section, upon application to the court of common pleas, or to any jus- tice thereof in vacation, may appeal to a jury to review their decision ; and for the proceedings upon such an ap- plication, see the aotitself Stat. 1845, c. 197, § 6, 7 & 8. 10. This act shall not be in force in any town or city, unless the inhabitants of the town or the city council of the city shall adopt the same at a legal meeting of said inhabitants or city council called for that purpose. Stat. 1845, c. 197, § 10. 1 1 . The mayor and aldermen of any city and the se- lectmen of any town, or any person by them authorized may, after notice to the parties interested, examine any steam engine in such city or town, and for that purpose may enter any house, shop, or building, and if after such examination it shall appear probably that the use of such engine is unsafe, they may issue a temporary order to suspend the use thereof ; and then after giving the parties in- terested, so far as they may be known, an opportunity to be heard, if they shall adjudge such steam engine unsafe, or defective, or unfit to be used, they may pass a perma- nent order prohibiting the use thereof until it shall be ren- KITTIES OF SELECTMEN, &C. 329 dered safe, and if such steam engine shall be used after the passage of such temporary order until the final adjudi- cation thereon, or after such final adjudication and order until it shall be rendered safe, contrary to either of such orders and after notice thereof, the owner or person having charge thereof, to such engine shall be deemed, and taken to be a common nuisance without any other proof thereof than its use. Stat. 1852, c. 191. 12. Said mayor and aldermen and selectmen shall have the same power and authority to abate and remove any such steam engine or furnace erected or used contrary to the foregoing provisions, as are given to the board of health in the tenth and eleventh sections of the twenty-first ■chapter of the Revised Statutes. Stat. 1845, c. 197, § 4. Stat. 1852, c. 191, § 2. 13. The selectmen of any town, upon complaint made to them, under oath, that the complainant has reason to be- lieve, and does believe, that any booth, shed, or other temporary erection, situated within one mile of any mus- ter-field, cattle-show ground, or other place of public gathering, is used and occupied for the sale of spirituous or fermented liquors, or for the purpose of gaming for money, or other property, may, if they consider the com- plaint well founded, order the owner or occupant thereof to vacate and close the same immediately : and if the owner or occupant shall refuse or neglect so to do, the said selectmen may, forthwith, abate such booth, shed or other temporary erection, as a nuisance, and pull down or otherwise destroy the same, in any manner they may choose, or through the agency of any force, civil or mili- tary, which they may see fit to employ. Stat. 1850, c. 291. 14. The mayor and aldermen of any city, and the se- lectmen of any town, may license such persons as they deem suitable to carry on the business of pawn prokers,-with- 28* 330 TOWN OFFICEE. in their respective cities or towns. Stat. 1855, c. 121, § 1. 15. The licenses to such persons shall designate the place where the business is to he carried on, and contain such conditions and restrictions as may be prescribed by the ordinances and by-laws of the city or town wherein the same are granted, and shall continue in force for one year, unless sooner revoked. Such license may be revoked at any time. Stat.1855, c. 121,§ 2. 16. No person, unless licensed as aforesaid, shall carry on said business, or be concerned therein ; nor shall any person, so licensed, carry on such business, or be concerned therein in any other place or manner than as is designated in his license, or after notice to him that said license has been revoked, under the penalty of a fine not ex- ceeding fifty dollars for every offence. St. 1855, c. 121, §3. 17. The city council of any city may suspend or dis- pense with the provisions of this act, so far as the same apply to such city : provided, that no offence committed, and no penalty incurred before such suspension shall take ef- fect, shall be affected thereby ; and the provisions of this act shall not extend to any tovsno, unless the inhabitants thereof shall, at a legal meeting, adopt the same. St. 1855, 0. 121, § 4. 18. Whenever the mayor and aldermen of any city, or the selectmen of any town, after due notice in writing to the owner of any burnt, dilapidated or dangerous build- ing, and after a hearing of the matter, shall adjudge the same to be a nuisance to the neighborhood, or dangerous, they may make and record an order prescribing what dis- position or alteration shall be made thereof, or such other provisions as they shall deem necessary ; and thereupon it shall be the duty of the city or town clerk to deliver a copy of such order to a constable, who shall serve such owner with an attested copy thereof, and make return of DUTIES OP SELECTMEN, &C. 331 his doings thereon to said clerk forthwitli. Stat. 1855, c. 469, § 1. 19. The mayor and aldermen of any city, or the se- lectmen of any town, shall have the . same power and au- thority to abate and, remove any such nuisance as are giv- en to the board of health in the tenth and eleventh sec- tions of the twenty-first chapter of the Revised Statutes. St. 1855, c. 469, § 2. 20. Any owner aggrieved by any order passed under the provisions of the eighteenth section upon application to the court of common pleas, or to any justice thereof, in va- cation may obtain a jury to review their decision ; and for the proceedings upon such an application, see the act itself. Stat. 1855, c. 469, § 3, 4, 5. 21. This act shall not be in force in any town or city, unless the inhabitants of the town, or the city council of the city, shall adopt the same at a legal meeting of said inhabitants or city council called for that purpose. Stat. 1855, c. 469, § 6. 22. The mayor and aldermen of any city, or the select- men of any town, may license all theatrical exhibitions, public shows, public amusements, and exhibitions of every description, to which admission is obtained upon payment of money, or the delivery of any valuable thing, or by any ticket or voucher obtained for money, or any valuable thing, upon such terms and conditions as they shall think reasonsble ; and they may revoke or suspend the same whenever there shall appear to them to be sufficient cause for such revocation or suspension. Stat. 1849, c. 231, §1. 23. Any person who shall oifer to view, or shall set up, set on foot, maintain or carry on, or shall publish, or oth- erwise assist in or promote any such exhibition, show or amusement, as mentioned in the preceding section, without a license as therein specified, shall be punished by a fine 332 TOWN OFFICEB. not exceeding five hundred dollars for each offence. Stat. 1849, c. 231, § 2. 24. Any person who shall get up and set on foot, or cause to be published, or otherwise aid in getting up and promoting any masked ball, or other public assembly, at which the company wear masks, or other disguises, and to which admission is obtained upon payment of money, or the delivery of any valuable thing, or by any ticket or voucher obtained for money, or any valuable thing, and shall be punished by a fine not exceeding five hundred dollars ; and, for a repetition of the offence, by imprisonment in the common jail, or house of correction, not exceeding one year. Stat. 1849, u. 231, § 3. IX. DUTIES OF SELECTMEN AS TO OYSTERS AND SHELL FISH, IN CERTAIN TOWNS. 1. Penalty for unlawfully taking oysters. Ac. 2. Selectmen may give perm,its. 3. Selectmen to license the planting &c,, of oysters in Hats and creeks, & c, for not more than twenty years. 4. License to describe the flats, &c., BO appropriated and to be recorded. 5. Fees for license and recording. 6. Penalty for taking, &c.. any other shell fish in certain towns. 7. When vessels with oysters, &c., on board, may be seized, 8. The prohibitions as to the shell flsh, not to extend to Indians, &c. 9. Provisions as to the town of Chatham. ' 10. Penalty Jiow recovered, Ac. 1 . No person shall take any oysters from their beds, or destroy them, or wilfully obstruct their growth therein, in any part of this state, except as is provided in the following section'; and every person, who shall otherwise take, destroy, or obstruct the same, shall forfeit, for every bush- el of oysters, (including the shells,) so taken or destroyed, the sum of two dollars. H. S. c. 55, § 11. 2. The selectmen of any town, wherein oyster beds shall be, may give permits, in writing, to any person, to take oysters from their beds, at such times, in such quantities, and for such uses, as the said selectmen siia' 1 think reason- able, and shall express in their said permits ; and every DUTIES OF SELECTMEN, &C. 333 inhabitant of sucli town, without such permit, may take oysters from such beds therein, for the use of his family, from the first day of September to the first day of June, annually. Ih. § 12. 3. The selectmen of any town may by writing under their hands, grant a license for a term of time not more than twenty years, to any person or persons inhabitants of such town, to plant, grow and dig oysters upon, and in any flats and creeks in such town at any place where there is no natural oyster bed, provided that such license shall not im- pair the private rights of any person, or materially obstruct the navigable waters of any creek or bay. St. 1848, c. 152, §1. 4. All licenses so granted shall contain a description by metes and bounds of the flats and creeks so appropriated, and shall be recorded by the town clerk on the records of such town, before they shall be of any force or validity. Stat. 1848, c. 152, § 2. 5. Every person receiving such license, shall pay to the selectmen so granting it two dollars for their use, also to the town clerk for recording such license, the sum of fifty cents. Stat. 1848, c. 152, § 5. 6. If any person shall take any other shell fish from their beds, or destroy them, or wilfully obstruct their growth therein, in any of the towns of Maiden, Medford, Charlestown, Rochester, Wareham, Hingham, Plymouth, Sandwich, Barnstable, Yarmouth, Eastham, Dennis, Well- fleet, Chatham, Nantucket, Edgartown, Tisbury, Dartmouth, Westport, Freetown, Fall River, Swanzey, New Bedford, Fairhaven, Somerset, Berkley, Brookline, Braiutree, Wey- m.outh, Chelsea, Brewster, Essex, Hull, Kingston, or Fal- mouth, except as is hereinafter excepted, the person, so of- fending, shall forfeit for every bushel of siyih other shell fish, including the shells thereof, the sum of one dollar ; provided, the selectmen of each of the said towns may, at 334 IQWN oi'i'icER. all times, give permits in writing, to any person, to take sucli other shell fish from their beds in said towns, at such times, in such (Quantities, and for such uses, as the said se- lectmen shall deem reasonable, and shall express in their permit; and every inhabitant of each of the said towns, without such permit, may take such other shell fish from such beds therein, for the use of his femily, lb. -^ 13. Stat. 1838, c. 110. Stat. 1840, c. 9. Siat.. 1843, c. 10. Stat. 1839,' c. 84. 7. If any vesselj boat, or craft shall be found within the limits of .any town, and not owned therein, with any oys- ters on board, taken in such town' without such permit, or within the limits of any of the towns, mentioned in the preceding section, and not owned therein, with other shell fish on board, taken in such town without such permit, any inhabitant of any town, wherein such vessel, boat, or craft, shall so be found trespassing, may seize and detain the same, not exceeding fojty eight hours, in order that the same, if need be, may, in that time, be attached or arrested by due process of law, to satisfy the said fines and forfeit- ures, with costs ; provided, however, that if the owner or master of any such vessel, boat or craft, shall, before the prosecution is instituted for the same, pay such forfeiture to the treasurer of the town, in which the same shall be ili- curred, such vessel, boat or craft, with the efi'eots therein, shall be discharged. S. S. c. 55, § 14. 8. Nothing contained in sections one, two, six and seven, shall be construed to deprive any native Indians of the privilege of digging shell fish for their own consumption, or to prevent any fisherman from taking any quantity of shell fish, which he may want for bait, provided it do not exceed seven bushels, including their shells, at any one time. lb. § 15. 9. No fisherman or any other person shall take, from the towns of Chatham and Nantucket any shell fish, for DITTIES OF SELECTMiJN, &C. 335 bait or other use, except clams and a shell fish, commonly known by the name of horse-feet ; and no quantity, ex- ceeding seven bushels of clams, including the shells, or one hundred of said horse-feet, shall be taken in one week, for each vessel or craft, nor in any case without a permit being first obtained from the selectmen of the town. Ih. § 16. Stat. 1850, c. 6, § 2. 10. All the said fines and forfeitures shall enure to the use of the town wherein the offence shall be committed, and may be recovered, by indictment or on complaint be- fore any justice of the peace, in the county where the of- fence was committed. lb. § 17. cies. 7, Duties. Fees, 44a of tQBpectoTS. 8. Penalty for selling bundle hay not inspected. X. DUTY OF SELECTMEN AS TO HAY SCALES. 1. Weighers of hay to be appointed, i mayor &c. or selectmen. 2. Their duty. j 6. Removal of and filling of vacan- 3. May be removed. i. Penalty for setting up hay scales without authority. 5. Inspectors of bale or bundle, hay to be appointed in cities and towns by 1 . The selectmen of each town, and the mayor and al- dermen of any city may, from time to time, appoint, for a term not exceeding one year, some person or persons to have the superintendence of the hay scales belonging to such town or city, who shall weigh hay ofiered for sale in such town or <:ity, and any other article ofifered to be weigh- ed. B. S. c. 28, § 95. 2. The persons so appointed shall conform to all such rules and regulations, as shall be established by the select- men or city council, respectively, concerning the said hay scales, a.nd the compensation or fees for weighing hay and other articles. lb. § 96. 3. The, said selectmen or city council, respectively, may remove any weigher of hay, and fiU any vacancy that may occur from death or otherwise. Jb. § 97. SS6 TOWN OTFICEE. 4. If any person, not appointed as aforesaid, shall set up any hay scales in any town or city, for the purpose of weigh- ing hay, or other articles, he shall forfeit the sum of twen- ty dollars a month, so long as the same shall be continued, to be recovered by an action of debt, and appropriated to. the use of said town or city ; provided, however, that this and the three preceding sections shall not apply to any town, which shall not adopt the same, and shall cease to operate in such town, when the town shall so determine. lb. 98. 6. The mayor and aldermen of each city and selectmen of each town in this Commonwealth in which bale or bun- dle hay is sold may, on the petition of ten or more legal voters of such city or town, annually appoint one or more persons as inspectors of bale or bundle hay, who shall be sworn to the faithful discharge of the duties of their office. Stat. 1847, c. 246, § 1. 6. Said mayor and aldermen, and selectmen respectively, may remove any inspector so appointed, and fill any vacan- cy that may occur from death or otherwise. Stat. 1847, e. 246, § 2. 7. For the Duties, Fees, &c. of the Inspectors, see a,ct itself, sections 3, 4, 5, 6. 8. Any person who shall sell any bale or bundle hay in any city or town in this Commonwealth where an inspector is appointed, as required by this act, which has not been inspected and weighed as herein provided, shall forfeit for each bale or bundle so sold two dollars, to be recovered in any court proper to try the same, one half to the complain- ant and the other half to the city or town in which such sale shall have been made, provided, that no inspection under this act shall be made where the vendor and vendee shall certify in writing to the inspector that they object to an inspection, Stat. 1847, c. 246, § 7. DTJTIES OF SELECTMEN, &C. 337 XI. DUTY OF SELECTMEN AS TO THE KEEPING OF GUN- POWDER AND GUN COTTON. 4. Gun cotton. 5. May license sale of rocfeets, Ac. 6. May license firing the same. 7. Towns and cities anthoiized to regulate the stora^ and saJe of cam- phene and other Infiamable mixtures. 1. Towns may order how gunpowder ehaJl t)e Icept within the town. 2. Justices to i&sue warrants for searching places where gunpowder is unlawfully kept. 3. Penalty for unlawfially keeping gunpowder. 1. The inhabitants of every town may order, that no gunpowder shall be kept in any place, within the limits of such town, unless the same shall be well secured in tight casks or canisters ; and that no gunpowder, above the quan- tity of fifty pounds, shall be kept or deposited in any shop, store or other building, or in any ship or vessel, which shall be within the distance of twenty-five rods, firom any other building or wharf ; that no gunpowder, above the quantity of twenty-five pounds, shall be kept or deposited in any shop, store or other building, within ten rods of any other building ; and that no gunpowder, above the quantity of one pound, shall be kept or deposited in any shop, store or other building, within ten rods of any other bxiilding in such town, unless the same be well secured in copper, tin or brass canisters, holding not exceeding five pounds each, and closely covered with copper, brass or tin covers. R. S. c. 58, §*. 2. Upon complaint made to any justice of the peace, by either of the selectm.en or firewards of any tovm, that he has probable cause to suspect, and doth suspect, that gun- powder is deposited and kept within the limits of the town, contrary to law, such justice may issue his warrant, direct- ed to either of the constables of such town, ordering him to enter any shop, store or other building, or vessel, speci- fied in said warrant, and there to make diligent search for the gunpowder, suspected to have been deposited or kept as aforesaid, and to make return of his doings to said jus- tice forthwith. Ih. § 8. 29 338 TOWN OITICEE. 3. If any person shall commit either of the offences mentioned in the two preceding sections, he shall forfeit a sum not exceeding twenty dollars, to the use of the town, to be recovered by complaint before any justice of the peace ; provided, that the four preceding sections shall not extend to any manufactory of gunpowder, nor in any case to prevent the transportation of gunpowder through any town, or from one part of any town to another part thereof, lb. § 9. 4. The inhabitants of any town, and the government of any city in this Commonwealth, may order that no gun- cotton, or other substance prepared, like it, for explosion, shall b© kept within the limits of such town or city, ex- cepting under the regulations and penalties thait are now applicable by law to gunpowder ; and, if it shall be con- sidered necessary for public safety, they may restrict the quantity to be so kept to one fifth of the weight of gun- powder allowed by law in each case provided for. Stat. 1847, c. 51. 6. If any person shall have in his possession, with intent to sell, or shall offer for sale, or shall sell, or give away, any of the fireworks called rockets, crackers, squibs or serpents, vnithout first having obtained the license of th& selectmen of the town, he shall, for every such Sffence, for- feit a sum not exceeding ten dollars, to the use of the town in which the offence shall have been committed. lb. §5. e. If any person shall have in his possession, with intent to set fire to, or shall set fire to any rocket, cracker, squib or serpent, or shall throw any lighted rocket, cracker, squib or serpent, within any town, without the license of the se- lectmen, he shall, for every offence, forfeit a sum not ex- ceeding ten dollars, to the use of the tovm in which the offence shall have been committed. 76. § 6. 7. Th-e inhabitants of any town, and the city council of DUTIES or SELECTMEN, &C. 339 any city, in this Commonwealth, may make and adopt such rules and regulations in relation to the storage and sale, within the limits of such town or city, of campheue, or any similar explosive or inflammahle fluid, as they mav deem reasDnablc, and may annex penalties to any breach of such rules and regulations, not exceeding twenty dol- lars for any one oiTence. Stat. 1850, c. 16-5, XH. DOTY OF SELECTMEN AS TO DEALERS L\ SECOXD HAXD AETIOLES. 1. License may be granted to -deal in old and second hand articles. 2. Place of dealing to be designat- ed ; conditions and term of lieense. 3. Penalty for dealing in sncli arti- cles n ithout license, or at places not designated. i. City council may suspend the provisions of this title ; provisions not to take effect in tofvns antdl adopted in town meeting. 1. The mayor and aldermen of any city, and the select- men of any town, may license such persons as they deem •suitable to be keepers of shops for the purchase, sale, or "barter of junk, old metals, or of any second-hand articles, and to be dealers therein. Stat. 1839, c. 53, § 1. 2. The licenses to such person shall designate the place where the business is to be carried on, and contain such conditions and restrictions as may be prescribed by the or- dinances and by-laws of the city or town wherein the same are granted, and shall continue in force for one year unless sooner rsYoked. Ih. § 2. 3. No person unless licensed .as aforesaid, shall keep any shop for the purchase, sale, or barter of the articles as aforesaid, or be a dealer therein ^ nor shall any person, ■so licensed, keep such shop, or be a dealer in said articles in any other place or manner than as is designated in his license, or after notice to him that said li-cense has been re- voked, under the penalty of a sum not exceeding twenty •dollars fcr every offence, to be recovered by complaint in «ny police court, or by indictment in any court of record 340 TOWN orricEK. in the county where such oifence may be committed. Ih. §3. 4. The city council of any city may suspend or dispense with the preceding provisions so far as the same apply to such city ; provided, that no offence committed and no penalty incurred before such suspension shall take eifect, shall be affected thereby ; and the preceding provisions shall not extend to any town unless the inhabitants thei'e- of shall, at a legal meeting, adopt the same. lb. § 4. Xin. POWER OF SELECTMEN AS TO RECOGNIZANCE OF TOWNS. 1. Selectmen may authorize per- 1 2. Surety not required in such rec- sons to enter into recognizances in be- ognii2;ance. half of the town. t 1 . When any city or town shall be required to enter in- - to recognizance, the mayor and aldermen of the city, or the selectmen of the town, may by an order or vote au- thorize any person to enter into the recognizance in the name and behalf of the city or town, and such recogniz- ance shall be binding on the city or town,and on the inhab- itants thereof, like any other contract lawfully made by such corporation. Art. of amendment, § 88. 2. No surety shall be required in any recognizance of a city or town. Ih. § 89. XIV. DUTIES OF SELECTMEN IN L.\YING OUT TOWN AND PRIVATE WAYS. 1. Selectman may lay out iovm ways and private ways. 2. Authority of selectmen limited, to roads having their termini within the town. 3. Notice to he given by selectmen, before laying out. &c. i. Owner of land , to have time to 5. Effiict of not removing -within time allowed. 6. Time may be extended by jury, . 24, § 66. It is no objection to the exercise of the authority by a town, that the road to be laid out will be as much used by the inhabitants of other places, or by strangers who may have occasion to pass on it, as by those for whose use it was declared to be established ; for the real utility of a road to any town may consist less in the actual passing and repassing through it, by the inhabitants of the town, than 342 TOWN OFFICEH. in facilitating the intercourse of strangers or inhabitants of other towns with them. 6 Mass. 7. 2. The authority conferred upon selectmen by section first, is limited to roads having their termini within the town, but it is no objection that the road is intended as one link in a chain of continuous roads ; that it is for the convenience of the inhabitants only from its connection with some great thoroughfare ; and that when established, it will be for the use of the public generally, as well as of the inhabitants of the town in which it is situated. 7 Oush. 394. 3. No such town way or private way shall be laid out or altered unless, seven days at least previously thereto, a written notice of the intention of the selectmen of the town to lay out or alter the same, shall be left by them, or by their order, at the usual place of abode of the owners of the land, over which such way is proposed to be laid out or altered, or unless such notice be delivered to such owner in person, or to hi? tenant or authorized agent ; provided, that if the owper shall have no such place of abode in the town, and no tenant or authorized agent therein known to the selectmen, or if, being a resident in the town, he shall not be known as such to the selectmen, then such notice shall be posted up in some public place in the town, seven days at least before laying out such way. B. S. c. 24, § 67. 4. When any town or private way shall be laid out, al- tered, or widened by selectmen or county commissioners, they shall, in their report or return thereof, allow the own- er of the land through which said way may pass, a reason- able time to take off bis trees, fences, and other property, which may obstruct the building of such way. Stat, of 1848, c. 98, § 1. 5. If said owner shall not remove the same within the time allowed for that purpose, he shall be deemed to have DUTIES OF SELECTMEN, &C. 343 felinquished his rigtt thereto, for the benefit of the town, if said way he a town way : and if said way be a private way, for the benefit of such person or persons as said se- lectmen or county commissioners shall determine. Ih. §2. 6. If a jury shall be ordered to assess the damages done by the location, alteration or widening of such way, they may extend the time for the owner of the land to remove his trees, fences, and other property, as aforesaid ; and if the owner shall neglect to remove the same within such extended time, he shall be deemed to have relinquished his claim thereto, as before provided. 7 J. § 3. 7. If any damage shall be sustained by any persons in their property, by the laying out, altering or discontinuing of any town way or private way, they shall receive such compensation as the selectmen shall determine ; which shall be paid by the town, if it is a town way, but if a private way, then by the persons for whose use it shall be so laid out, altered or discontinued ; unless the selectmen shall deem it reasonable in such case, that any part of it shall be paid by the town and the residue by the said per- sons ; and in case any person shall be'aggrieved by such determination of the selectmen, he may, upon application to the commissioners, have his damages ascertained by a jury, or, if he shall so elect, by a committee, to be appoin- ted by the said commissioners, in like manner as is pro- vided in respect to the recovery of damages for laying o ut highways. Ih. § 68. ^e R. S. c. 24. 8. No claim for damages sustained by any persons in their property, by any sach laying out or alteratons, shall be made, until the land over which such ways are located shall have been entered upon, and possession taken, for the purpose of constructing said ways or alterations : provided that when any person, claiming damages, shall have been put to any expense for injuries sustained by such proceed- 344 TOWN OFPICBK. ' ings tte selectmen aforesaid shall allow him full indemnity therefor, although his land may not have been so entered upon and possession taken as aforesaid ; and provided, further, that any party aggrieved by the estimate of said last named damages may have a jury to revise such esti- mate, in the same way and manner as is now provided in case of town ways and private ways. Stat. 1842, c. 86, § 1. Stat. 1847, c. 259, § 4. 9. No town way, or private way, which may have been laid out or altered by the selectmen, shall be established, until such laying out, or alteration, with the boundaries and admeasurements of the said way, shall have been re- ported to the town, and accepted and allowed, at some public meeting of the inhabitants, regularly warned and notified therefor, nor unless such laying out, or alteration, with the boundaries and admeasurements aforesaid, shall have been filed in the office of the town clerk, seven days at least before such meeting. R. S. c. 24, § 69. 10. A vote of a town that the selectmen shall lay out a particular town way, is unauthorized and improper ; it being the intention of the law that the selectmen should exercise their own discretion on the subject. 5 Piclc. 392. 11. No highway or town way shall be laid out or con- structed in, upon, or through, any enclosure used or ap- propriated for the burial of the dead, unless authority to that effect shall be specially granted by law, or the con- sent of the inhabitants of the town, where such enclosure is situated, shall be first obtained, under the penalty in this behalf provided in the one hundred and thirtieth chap- ter of the Revised Statutes. R. S. c. 24, § 69. 12. No highway or town way shall be laid out or con- structed in, upon, or through, such part of any enclosure, belonging to private proprietors, as may be used or appro- priated to the burial of the dead, unless th-j consent of such proprietors shall be first obtained therefor, lb. § 60. BtJTIES OF SELECTMEN, &C. 34S 13.* The selectmen of the several towns and the mayor and aldermen of the several cities of this Commonwealth, shall cause permanent stone hounds, not less than three feet long, — two feet of which, at least, shall he inserted in the earth, — to he erected at the termini and angles of all roads hereafter laid out by them, when practicable ; and when not practicable, a heap of stones, a living tree, a per- manent rock, or the corner of an edifice, may be a substi- tute for said stones. *S1;. 1848, c. 192. The provisions of the preceding section, are merely directory, and not necessary to he complied with in order to a valid location ; they more properly relate to acts to be done after the way is located ; and compliance therewith need not be stated on the record of the laying out of the road. 7 Gush. 395. 14. Whenever the county commissioners of the several counties, the selectmen of the several towns, and the mayor and aldermen of the several cities of the Common- wealth, shall neglect to comply with the provisions of the one hundred and ninety-second chapter of the acts of the year one thousand eight hundred and forty-eight, for the space of one month after being notified so to do by the owner of any land through which roads have been laid out since the passage of the, act aforesaid, or shall hereaf- ter be laid out, the town, if said road be a town road, the county, if the road be a county road, and the city, if the road be a city road, shall be liable to pay said land owner the sum of fifty dollars for each and every month that said neglect shall continue, to be recovered by said land owner, of said town, county or city, as the case may be, in an action of tort. St. 1855, c. 95. 15. Any town, at any meeting regularly called for that purpose, may discontinue any town way or private way lb. § 70. 16. If the selectnien of any town shall unreasonably 346 TOWN OFFICEK. refuse or neglect to lay out, or alter any such tcwn way or private way, when requested in writing by one or more of the inhabitants thereof, the commissioners, at any meet- ing within one year, on the application of any person ag- grieved, by petition in writing, may cause the said town way or private way to be laid out or altered ; and they shall ascertain the place and course of the way, and esti- mate the damages sustained by any person, by reason thereof, and the same, with all costs of the proceedings, shall be paid by the town, if it be a town way ; and if it be a private way, the damages and costs, or such part thereof, as the commissioners shall judge reasonable, shall be paid by the persons for whose use it is laid out or al- tered, and the residue, if any, shall be paid by the town. R. S. c. 24, § 71. 17. The omission of selectmen, to make a written re- port to the town of their alteration of a town way, on a written petition for an alteration, is such a refusal or i;eg- lect to alter as gives jurisdiction of the matter to the com- missioners. 9 Met. 423. 18. When selectmen refuse to lay out a way, and ap- plication is thereupon made to the county commissioners to lay it out, they have jurisdiction of such application and may proceed thereon, although the selectmen in the petition to them were requested to discontinue an old way (which they had no authority to do) as well as lay out a new one. ' 12 Met. 208. 19. When a town way has been regularly laid out by the selectmen, and approved by the town, it must be con- sidered as established ; and the surveyors or selectmen, acting as such, cannot be trespassers in making such road passable, although the year, during which an application may be made to the commissioners, had not elapsed. 6 Mass. 7. 20. If any town shall unreasonably refuse or delay to DUTIES OF SELECTMEK, &C. 347 approve and allow any town way, or private way, laid out or altered by tlie selectmen thereof, and to put tte same on record, any person aggrieved by such, refusal or delay, may within one year thereafter apply by petition in writing to the commissioners ; and the said commissioners may, unless sufficient cause shall be shown against such appli- cation, approve and allow of the way, as laid out or al- tered by the selectmen, and direct the said laying out or alteration and acceptance to be recorded by the clerk of such town, which shall have the like effect, as if accepted by the town and recorded. S. S. c. 24, § 72. 21. The commissioners may also, upon the application in writing of any person, aggrieved by the refusal of any town to discontinue a town way, or private way, and after due notice, and hearing all parties interested, order such way to be discontinued. lb. § 73. 22. "When any town way shall have been laid out or al- tered by the commissioners, it shall not, within two years thereafter, be discontinued or altered by the town ; and when any such way shall have been discontinued by the commissioners, the town shall not, within two years there- after, lay out the same again. 76. § 74. 23. No town shall, in any case, be permitted to contest the legality of any way, laid out by such town, and ac- cepted and recorded as above provided. lb. § 77. 24. Every town may at any legal meeting regularly no- tified for that purpose, vote to raise any sum of money, to be laid out for the making of highways and town ways, within such towns, as they may deem necessary ; and may, if they see fit, direct the same to be assessed in money on the polls and estates, real and personal, of the inhabitants, residents and non-residents, of their town, and to be col- lected as other town charges are by law assessed and col- lected, lb. § 78. 25. A town has no authority to raise money to aid iji 348 TOWN oFricEE. the construction of a road, wbich is by law to be made at the expense of the county. 11 Pick. 396. .26. When the location or alteration of a private way is desired in any town for the use of one or more persons not being inhabitants thereof, or when the location or al- teration of any private way is desired, lying partly in one town and partly in another, the county commissioners of the county or counties, where the way is prayed for, may cause such way to be located or altered, proceeding there- in, as is provided by law, in case where the selectmen of any town refuse to lay out any private way. Stat. 1837, c. 164. 27. No way heretofore opened and dedicated to the public use and not already become a public way, and no way hereafter opened and dedicated to the public use shall become chargeable upon any city or town, unless such ways sh'ill be laid out and established by such city or town, in the manner prescribed by the statutes of- this Commonwealth. Stat. 1846, c. 203, § 1. 28. It shall be the duty of the mayor and aldermen of each city, and of the selectmen of each town in this Com- monwealth, and they are hereby authorized and required, -whenever, and so" long as the public safety may demand it, to direct and cause the entrances of all the ways afore- said, entering on and uniting with any existing public way, to be closed up, or, by other sufficient means, to cau- tion the public against entering upon such ways. lb. § 2. 29. In case any city or town shall not close up the en- trances to the ways aforesaid, or give other sufficient no- tice that the same are dangerous, such city or town so neg- lecting, shall be liable for any damages arising from any defects therein, in the same manner as if such ways were duly laid out and established. 76. § 3. 30. When any street or way, which now is or hereafter shall be opened, in any city or town shall accept this act DITTIES OP SKLECTMEN, &C. 349 as hereinafter provided, over any private land, by the own- ers thereof, and dedicated to or permitted to be used by the public before such street or way shall have been ac- cepted and laid out according to law, it shall be the tiuty of the owners of the lots abutting thereon to grade such street or way at their own expense, in such manner as' the safety and convenience of the public shall, in the opinion of the mayor and aldermen of any city or selectmen of any town, require ; and if the owners of such abutting lots shall, after reasonable notice given by the said mayor and aldermen or selectmen, neglect or refuse to grade such street or way in manner aforesaid, or to close the same from public use, it shall be lawful for the said mayor and alder- men or selectmen to cause the same to be graded as afore- said, and the expense thereof shall, after due notice to the parties interested, be equitably assessed upon the own- ers of such abutting lots by the said mayor and aldermen or selectmen, in such proportions as they shall judge rea- sonable ; and all assessments so made shaU be a lien upon such abutting lands, in the same manner as taxes are now a lien upon real estate ; provided always, that noth- ing contained in this act shall be construed to affect any agreements heretofore ihade, respecting any such streets or ways as aforesaid, between such owners and any city or town ; provided, also, that any such grading of any street or way by the mayor and aldermen or selectmen, as afore- said, shall not be construed to be an acceptance of such street or way by any such city or town, and that the said grading of such street or way by any such owners, or on such notice or procurement of such mayor and aldermen or selectmen, shall not be construed to be a dedication to the public use of any such street or way, or any part thereof, by the owner or owners of the same. Stat. 1853, c. 315, § 1. 31. The mayor and aldermen of any city, or the select- 30 350 TOWN onrciss, men of any town, by wliicli this act shall be accepted, are hereby authorized to fix and establish the grade of any street or way mentioned in the first section of this act, before the same is actually graded as therein provided, or of any other street or way not legally accepted, and to- cause a plan of such grade to be deposited in the office of the clerk of such city or town ; and all those who im- prove the lots abutting on any such street or way, after the grade of it shall have been so established and recorded, shall in their improvements, either by building or other- wise, conform to said grade, and shall be entitled to no damages for the making of such street or way according to said grade, provided such street or way be actually made within two years after the grade thereof is estab- lished and recorded. The establishing and recording of the grade of any street or way as aforesaid shall not be considered an acceptance of such street or way by any city or town. Stat. 1853, c. 315, § 2. 32. No street or way mentioned in the first and second sections of this act shall be dug up, or in any way obstruct- ed in any part thereof, without the consent of the mayor and aldermen of the city, or the selectmen of the town, in which such street or way is situated. Stat. 1853, e. 315, § 3. 33. This act shall not take efiect in any city or town until it shall have been accepted by the city council of such city, or by the inhabitants of such town, at a legal meeting. Stat. 1853, e. 315, § 4. 34. It shall be lawful for any person owning or occupy- ing lands adjoining a highway or road, to construct a side- walk within such highway or road, and along the line of such land, indicating the width of such sidewalk by trees, posts or curbstones, set at reasonable distances apart, or by a railing erected thereto ; and where a sidewalk shall be so constructed, every person who shall ride, or drive a DUTIES 6]? SELECTMEN, &C. 351 torse or team upon and along the same, shall forfeit the sum of one dollar to the use of such owner or occupant, to be sued for in any court proper to try the same. Stat. 1849, c. 24, § 1. 35. This act shall not diminish or interfere with the au- thority of surveyors of highways, or any other authority that can he now legally eiercised over highway or roads ; nor shall it in any manner diminish the liability of any person for unreasonably obstructing highways or road's- Ih. Stat. 1849, c. 24, § 2. 36. This act shall not apply to cities. Stat. 1849, c. 24, § 3. 37. The mayor and aldermen of any city or the select- men of any town, by which this act shall be accepted, are hereby authorized to establish and grade sidewalks, in such city or town, in such streets as in their judgment the pub- lic convenience and necessity may require, and they shall have power to assess the abutters on said sidewalks, one- half the expense of the same, the residue to be paid by such city or town ; and all assessments so made shall be a lien upon said abutting lands in the same manner as taxes are now a lien upon real estate. Stat. 1855, c. 43, § 1. 38. No sidewalks constructed or graded in any city or town, shall be dug up, or in any way obstructed in any part thereof, without the consent of the mayor and alder- men of the city, or of the selectmen of the town in which such sidewalk is established. Stat. 1855, c. 43, § 2. 39. This act- shall not take effect in any city or town until it shall have been accepted by the city council of such city, or by the inhabitants of such town at a legal meeting. Stat. 1855, c. 43, § 3. 40. Sidewalks when a part of the public streets are to be kept in a safe and convenient state of repair for public jjse, and g, sidewalk should be so constructed and fitted 352 TOWN orFICEH, for use through its entire widtli as to be safe and conveni- ent, 3 Cusfi. 174. 41. The liability of a city or town, for an injury occa- sioned by a defect in a street or way is not varied or dis- charged, if the defect is occasioned by the exercise of the right of an adjoining owner of land to use the street or way for some private purpose, not inconsistent with the ■right of the public. 3 Gush. 174. XV. DUTIES OF SELECTMEN UNDER THE MILITIA LAWS. 1. Ccmmanding officers of compa- Tiies to retruro to the adjutant general ttie number of merabdrs present and absent, on days of inspection, training, jmd review. 2. Adjutant general to return to mayor and aldermen and Belectmen, 4phe number of men entitled to pay, ac- cording to such returns. 3. Commanding officers to make al- phabetical lists of members performing duty, and certify same to mayor and al- dermen and selectmen. 4. Cities and tuwns to pay for the military services, returned as above, and ■to be reimbursed by the Cummonwealtli upon making returns thereof to the ad- jutant general. 5. Penalty of neglect. 6. Compensation allowed to mem- bers of brigade bands. 7. Masters of bands to make returns ^of members performing duty to adju- tantgeneral ; — and commanding officers to ceitify the same. 8. Masters of bands to make alpha- betical lists of members performing duty, and certify same to mayor an'i al- dermen and selectmen who shall pro- vide for their payment. 9. Compensation of company oflflcerB and members. Provisions as to pay roll. 10. Mayor and aldermen and select- men to provide arrariries, expense to be paid by Commonwealth. 11. To make and transmit to adjutant general certificate of name of company and necessity of armory. 12. Board of commissioners to exam- ine alid audit claims for lent of aimor- ies. To file certificate of claims allowed AA ith truasurer of Commonwealth who sitall pay such claims. 13. Penal lies for making false certifl- I cates. 1. The commanding officer of every company raised at large shall, within twenty days after each of the days of inspection, training and review, required by law, make to the adjutant general a return of the number of men be- longing to his company, that appeared, armed, uniformed ■and equipped, and performed duty on any such day, to- gether with the number of men belonging to his company that were absent ; it being provided that not more than sixty-four in number shall be so returned as having done fiuch duty. St. 1845, c. 243, § 1. 2. The adjutant general shall, within ten days after the BTTTIES OF SELECTMEN, &C. 353 receipt of the last return provided for in tlie first section, make to tte mayor and aldermen of any city, and the select- men of any town, in which the company armory or place of assembling the company is situated, a return of the number of men, that, by the returns made to him under the first section, are entitled to the pay provided for in the section specifying the number of men returned under each parade, and the amounts respectively due therefor. Ih. § 2. 3. The commanding officer of every company raised at large, shall, after each of the days of inspection, training and review required by law, make out an alphabetical roll of the persons, not exceeding sixty-four in number, who shall have appeared, armed, uniformed and equipped, and performed duty in his cojnpany, on each of said days ; and, within twenty days, annually, after the last parade, shall, deliver the same, certified under his oath to be correct and true, to the mayor and aldermen of any city, or the select- men' of any town, in which the company armory, or place of assembling the company, is situated : provided, however, that s.uch roll shall contain the names of those persons only who have performed the duty required by law. Ih. § 3. 4. The mayor and aldermen of each city, and the select- men of each town, to whom the returns named in the pre- ceding sections are made, shall on or before the first day of November, annually, make out a complete list of all the persons who appear from said returns to be entitled to the bounty mentioned in the following section, and shall there- upon draw their warrants on their respective treasurers, di- recting them to pay the amount due to the persons named in said returns ; and the mayor and aldermen, and select- men aforesaid, shall return to the adjutant general, on or before the fifteenth day of January, annually, the lists of persons so to be paid, and the amount for which their re- spective warrants have been drawn ; and the adjutant gen- eral shall on or before the twenty-fifth day of January, an- 354 TOWK OFFIOEE. nually, ascertain from th.e returns made to him, tlie amount of money which will be necessary to pay the several cities and towns, and submit the same to the Governor of the Commonwealth, who is hereby authorized to draw his war- rant on the treasurer of the Commonwealth for the re-pay- ment of the sums advanced. Slat. 1844, c. 101, § 5. 5. Any city or town that shall neglect to n^ake return to the adjutant general, as is directed in the last section, shall forfeit its right to be reimbursed by the State. Stat. 1846, c. 243, § 10. 6. Each member of a brigade band shall be entitled to receive the sum of three dollars for each full day's service, •and one half that sum for each half day's service, rendered in obedience to an order from the commanding officer of the brigade to which such band may belong, it being pro- vided that such commanding officer shall not order out said band in full, or in sections thereof, more than three times, laking the parades of both, in any one year. 7. The master of every brigade band shall, within ten xlays after the parade thereof, or of any section thereof, made under order of the commanding officer of the brig- ade to which such band may belong, make to the adjutant general an alphabetical return of the names of the men who appeared in uniform and performed duty in such band ■on any such day, the last return to be made on or before •the tenth day of November, annually ; and the said return shall contain a certificate signed by the commanding officer, to whom said band, or any section thereof, was ordered to report itself for duty, setting forth that the duty was well and faithfully performed, in fault of which the members of such band, or of any section thereof, shall forfeit the pay provided for in the sixth section. Ih. % 5. 8. The master of each brigade band shall further make, after each day of the parade thereof, or of any section thereof, an alphabetical roll of the names of such members DUTIES OF SELECTMEN, &C. 355 of the band as appeared in uniform and performed duty as set forth in the sixth section, and, within twenty days after the last parade, shall deliver the same, certified under his oath to be correct, to the mayor and aldermen of any city, or the selectmen of any town, within which such master may reside, and the mayor and aldermen of such city, and the selectmen of such town, shall proceed to provide for the pay of such members, and for the reimbursement there- of on the part of the Commonwealth, in the same manner as is provided for in the case of members of the volunteer companies of the militia : provided, that the adjutant gen- eral shall have first certified to such mayor and aldermen, or such selectmen, that from returns made to him, it ap- pears that the members aforesaid have well and faithfully performed the duties required of them. lb. § 6. 9. Each and every ofiicer and member of the volunteer companies shall receive compensation for the military duty performed by them, as follows, viz : — For the May inspection, the sum of one dollar and fifty cents, and, for each day's duty in camp, the sum of two dollars and fifty cents per day ; the said sums to be com- puted upon the pay roll of each company, to be made out and certified by the commanding ofiicers of companies, as is now by law provided, and to be returned to the adjutant general s office, within ten days after the last day's duty, and by him examined and certified, and returned to the mayor and aldermen, or the selectmen of the several towns and cities, who shall, upon receipt thereof, pay over to the persons named therein the sums specified. And the pay rolls shall be returned, by the mayor and aldermen, or se- lectmen of the towns and cities, to the adjutant general's oflice, on or before the thirty-first day of December, annu- ally, to be by him presented, for allowance, to the govern- or as now by law provided, for the reimbursement of the same, from the state treasury. Stat. 1849, c. 218, § 7. S56 TOWN OPFICEK, 10. It shall be the duty of the mayor and aldermen of cities, and the selectmen of towns, in this Commonwealth, from time to time, to provide each and every company of cavalry, artillery, infantry, light infantry, and riflemen, within the limits of their respective cities and towns, — which are now or which may hereafter be duly organized un- der the laws of the Commonwealth, with suitable and proper armories or places of deposit for the safe keeping of their arms and equipments furnished to such company or com- panies, from time to time, by the adjutant general under the authority of law ; and the expense thereof shall be paid out of the treasury of the Commonwealth, in manner as hereinafter provided. Stat. 1853, c. 188, § 1. 1 1 . The said mayor and aldermen and selectmen shall annually, in either of the months of October or November, make out and transmit to the office of the adjutant gen- eral, verified by the oath or affirmation of two at least of said mayor and aldermen, or selectmen, a certificate or re- turn showing the name of each company furnished with an armory, and the amount paid or allowed for the rent or use thereof; and said certificate or return shall embrace also, in substance, as follows : That the armory or armories so furnished by sai4 mayor and aldermen, or selectmen, are such, and such only, as, in the opinion of a majority there- of, are necessary for the legitimate uses of such company or companies as an armory or armories, and that the value of the annual rent thereof, according to the value of real estate in the city or town wherein the same is or are lo- cated, is fully equal to the sum or sums paid or claimed therefor. St. 1853, c. 188, § 2. 12. The adjutant general, the treasurer, and receiver general, and the auditor of this Commonwealth, respect- ively, for the time being, shall constitute a board of com- missioners to examine and audit all accounts and claims for rent of armories made in pursuance of the provisions DUTIES OF SELECTMTEN, &C. 367 of this act ; and on or befure the first day of January in each year, it shall be the duty of the said board to examine the ^several returns and certificates mentioned in the pre- ceding section, and to institute such inquiries in relation thereto as they may deem expedient and proper, to cause the same to be corrected if necessary, and to allow such ac- counts and claims, either in whole or in part, as said com- missioners shall deem to be just, and in accordance with the true intent and meaning of this act ; provided, however, that in no case whatever shall there be allowed in payment for an armory for any one company a greater sum annually than three hundred dollars. And it shall be the further duty of the said board of commissioners to file in the office of the treasurer of the Commonwealth, within ten days after they shall have completed their said examination, a certificate signed by them, showing the sum and sums thus allowed, and the names of the respective companies for whose use the same was allowed, and the city or town to which such companies belong. And the said adjutant general shall thereupon immediately notify the said mayor and aldermen and selectmen of the sum and sums thus allowed ; and the amount thereof shall be paid by the treasurer to the said mayor and aldermen and select- men, respectively, on demand, in the same manner as is now provided by law for the reimbursement of sums paid out by them to the oflicers and members of the volunteer militia for military service. Stat. 1853, c. 188, § 3. 13. Any person or persons named or referred to in this act, who shall be guilty of making any false return or certificate, required by this act to be made under oath, as hereinbefore provided, vdth intent to defraud the Com- monwealth, shall be deemed to have committed the crime of perjury, and shall be punished therefor accordingly. And if, by reason of such false return or certificate, wil- fully made by the mayor and aldermen of any city, or the 358 TOWK OFFICER. selectmen of any town, or any one or more of them, there shall be paid out of the treasury of this Commonwealth to such city or town any sum or sums of money to which such city or town is not entitled according to the true in- tent and meaning of this act, the city or town so receiv-i ing the same shall he punished by a fine not exceeding four times the amount of money so received, to be recov- ered by indictment in any of the courts of this Common* wealth of competent jurisdiction. Stat. 1S53, c>, 188, § 4. XVI. DUTIES OF SELECTMEN, CONCERNING HAWKERS AND PEDLARS. li Hawkers, pedlars, petty chap-l 5. Sums payable for such licenaea. men, and other itinerant dealers, to be | 6. Keaident tax payers not to pay liceDsed, 2. Articles enumerated, -which may be sold by hawkers, Ac, without license ; — and power of cities and towns to restrain such sales. 3. Licenses to be granted by the sec- retary of the Commonwealth, upon the certificate of selectmen or mayors, as to the citizenship, resideace, aud good repute of the applicants. 4. Extent of such licenses,— sums to be paid to ttie treasurers of towns or cities therein mentioned,— and powers conferred thereby. city or town treasurer for license to sell goods. 7. Recnrds of licenses, — how and by whom to be made. 8. Sums paid for licenses, — to be- long to the state, or to the county, city, or town, receiving the same. 9. Name, residence, and number of license to be borne on the vehicle or parcels of person licensed ; and license to be exhibited to selectmen, Ac, when. demanded. 10. Acts concerning auctioneers not to extend to hawkers and pedlai'ft 1. From and after the first day of July next, every hawker, pedlar, or petty chapman, or other person, going from town to town, or from place to place^ or from dwelr ling-house to dwelling-house, in the same town, either on foot or with one or more horses, or othervase carrying for sale, or exposing to sale, any goods, wares or merchandise, or taking a residence in any town for that purpose, for a less time than one year, except as provided in the second section, or under a license, granted as hereinafter provided, shall forfeit a sum not exceeding two hundred dollars for every offence ; and nothing contained in this section shall be construed to restrain sales at public auction, according to law. Stat. 1846, c. 244, | 1, DUTIES OF SELECTMEN, &C. 359 2. Any person may gp about, as aforesaid, selling and exposing to sale, any fruits and provisions whatever, live animals, brooms, agricultural implements, fuel, newspa- pers, books, or pampMets, agricultural products of the United States, the products of his own labor or any labor of his own family ; but the sale of jewelry, wines, spirituous liquors, playing cards, indigo, and feathers, as aforesaid, is hereby prohibited : provided, if the city council of any city shall authorize the mayor and aldermen of such city, or the inhabitants of any town shall authorize the select- men of such town to restrain the sale, by minors, of any goods, wares or merchandise, the sale of which in the manner aforesaid, is permitted in this section, such mayor and aldermen, or selectmen, while such authority remains in force, may exercise in the premises, all the powers they are by law authorized to exercise in relation to theatrical exhibitions and public shows ; and any violation of such restraint, when the same shall be imposed by the regula- tions of said mayor and aldermen, or said selectmen, or any sale of the articles in question, without a license, where the same shall be required in exercise of the author- ity above granted, shall subject the persons guilty of the same to a penalty not exceeding ten dollars for every of- fence : provided, Jurther, that no such restraint imposed, or license granted, shall remain in force beyond the term of office, of those by whom the same was imposed or gran- ted, lb. § 2. 3. The secretary of the Commonwealth may grant a license to go about selling and exposing to sale, any goods, wares and merchandise, not prohibited in the second section, to any applicant, who shall file in his office, a certificate, signed by a majority of the selectmen of any town, or the mayor of any city, in the Commonwealth, which certificate shall state that, to the best knowledge and belief of such mayor or selectmen, the applicant therein named, is a citi- 360 TOWN oFFicB-a. zen of the United States, and resides in such city or town, and is in good repute for morals and integrity. And the mayor or selectmen as aforesaid, before granting such cer- tificate, shall require every such applicant to make oath that he is a citizen of the United States, and is a resident of such city or town, which oath shall be certified by a justice of the peace and accompany the certificate. lb. § 3. 4. The secretary of the Commonwealth shall cause to be inserted, in every license, the names of such cities and towns as the applicant shall select, with the sum to be paid to the respective treasurers thereof, annexed, and shall re- ceive from the applicant one dollar for each city or town so inserted ; and every person so licensed, is hereby author- ized to sell, as aforesaid, any goods, wares or merchandise, not prohibited in the second section, in any city or town mentioned in his license, upon first tendering to the treas- urer thereof, the sum stated to be due ; and the treasurer of such city or town shall make a certificate on the face of the license, stating the sum so received. No license granted under this act shall be pleaded in bar to any com- plaint against the person licensed, if it be proved that he exposed to sale in any county, city or town mentioned in such license, any article not permitted or prohibited in the second section, prior to tendering to the treasurer thereof the sum required by this act, or in any county, city, or town, not mentioned in such license : provided, that this act shall not be construed to require any person so licensed, to pay the sum due to the treasurer of any county, city, or town, before he is prepared to trade therein. Ih. § 4. 5. Every person licensed under the foregoing sections, in addition to the sum payable to the secretary of the Com- monwealth, shall pay to the treasurer of each city or town, menioned in his license, the sums following : — For every town containing not more than one thousand inhabitants, according to the United States census, next preceding the DrTIES OF SELECTMEK, &C. 361 date of any license, three dollars. For every town con- taining more than one thousand and not more than two thousand inhabitants, six dollars. For every town -con- taining more than two thousand and not more than three thousand inhabitants, eight dollars. For every town con- taining more than three thousand and not more than four thousand inhabitants, ten dollars. And for every town containing more than four thousand inhabitants, the sum shall be increased, in addition to ten dollars, one dollar for every one thousand inhabitants, over four thousand con- tained therein : provided, that the sum to be paid to the treasurer of any city or town shall, in no case, exceed twenty-five dollars. lb. % 5. 6. Any person resident in any city or town, paying taxes upon his stock in trade and qualified to vote therein, may sell, and expose to sale, in such city or town, goods, wares or merchandize, upon obtaining license therefor, pursuant to the provisions of the two hundred and forty-fourth chap- ter of the act of the year one thousand eight hundred and forty-six, and shall not be required to pay to the treasurer of such city or town the sums prescribed in the fifth sec- tion of the act to which this act is in addition. Stat. 1851, c. 298. 7. The secretary of the Commonwealth shall keep a rec- ord of all licenses granted, with the number of each, the name and residence of the person licensed, and the counties, cities and towns mentioned therein, and also of all special state licenses. The treasurers of the counties, cities and towns, shall severally keep records of all licen- ses upon which the sums provided in this act have been paid, with the number of each, the name and residence of the persons licensed, and the sums received thereon, and all such records shall be open for public inspection. Ih. § 6. 8. All sums paid to the secretary of the Commonwealth under this act, shall be for the use of the Commonwealth ; 31 362 TdWN orricfiK. and all sums paid to the treasurer of any county, city, at town, shall be for the use of the county, city or town, so receiving the same. Any license granted under this act, upon proceedings had by the applicant, as provided in the third section, may be transferred by the secretary of the Commonwealth, and the person to whom such license is transferred, shall be liable, in all respects, as if he were the person originally licensed. lb. § 8. 9. Every person licensed as herein provided, shall post his name, residence, and the number of his license, in a conspicuous manner, upon his parcels or vehicle, and when- ever such license is demanded of him, by any selectman, justice of the peace, town treasurer, town clerk, constable or police officer, he shall forthwith exhibit it, and if he neg- lect or refuse to do so, shall be subject to the same penalty as if he were without a license, and this act, or a synopsis thereof, shall be printed on every license. lb. § 9. Stat. 1851, e. 298, § 2. 10. Nothing contained in the acts of 1837 and 1852 concerning auctioneers, shall be construed as authorizing, or in any way empowering hawkers and pedlars, or other itinerant traders who may now hold, or may hereafter hold an auctioneer's license, to sell or expose for sale by public auction any goods, wares or merchandize whatever, in any other city or town than in the one from whose authorities such license was obtained, and then only in such place or places as shall be expressly described or set forth in said license. Stat. 1852, c. 115, § 2. DUTIES OF SELECTMEN, &C. 363 XVnL DUTIES OF SELECTMEN AS TO RAILROADS. 1. Gates &c. shall be erected across a railroad if necessary. 2. Applications as to railroad cros- sing may be made by two inhabitants directly to railroad corporation. 3. Commissioners may alter location and construction of gates at railroad crossings. 4i Provision for application to county commissioners at th« expense of the prevailing party to decide whether the raising or lowering of a highway crossed by a railroad shall be m^e by the cor- poration which owns the railroad. 5. KaJlroads crossing any turnpike S.C. to be constructed so as to pass over or under the same. County Commis- sioners may authorize the crossing upon a level, Ac. G. Owners of railroads and steam- boats to publish semi-annual descrip- tive lists of unclaimed effects of passen- gers. 7. Articles remaining unclaimed six months after advertisement may be ex- amined by mayor and aldermen or se- leetmpTi and soM or ordered to be again advertised. 8. Proceeds of sales deducting expen- ses to be paid commonwealth. i. If the selectmen of any town, "wherein any turnpike, highway, townway (or travelled place, Stat. 1849, c. 222, § 2,) is crossed by any railroad upon the same level, are of the opinion that it is necessary for the public security that gates should be erected across the railroad, and that an agent should be stationed to open and close such gates whenever an engine passes, the said selectmen may in writ- ing request said railroad corporation to erect such gates and station an agent as aforesaid ; and if said corpor- ation shall neglect or refuse so to do, the said selectmen may apply to the county commissioners to decide upon the reasonableness of such request ; and if said commissioners after due notice and hearing the parties, shall decide that the erection of such gate, and providing such agent, are necessary for the security of the public, said railroad cor- poration shall comply with said decision, and shall pay the costs of the application, and if the said commissioners shall be of the opinion that the establishment of gates and an agent is not required as aforesaid, the said selectmen shall be liable to pay all the costs of the application. H. S. c. 39, § 81. 2. The application now required by law to he made by selectmen of towns to a railroad corporation, in the matter of a crossing by its railroad of any turnpike, highway, townwaj, or travelled place, may, when such crossing is 364 TOWN opriOEK. within the limits of the city of Boston, he made hy any two or more inhabitants of the said city, and if such rail- road corporations shall refuse or neglect to comply with the request of such inhabitants, as contained in their ap- plication, the said inhabitants may apply to the mayor and aldermen of Boston to decide upon the reasonableness of their request, and thereupon a hearing shall be had and a decision made in accordance with the eightieth section of the thirty-ninth chapter of the Revised Statutes, and the two hundred and twenty-second chapter of the acts of the year one thousand eight hundred and forty-nine. Stat. 1851, c. 317. 3. The county commissioners in the several counties are hereby empowered to alter the location and construction of railroad gates at crossings on the petition of any party, Avhenever, in their opinion, the better security of human life, or the convenience of the public travel, shall so re- quire. Stat. 1854, c. 401. 4. If the selectmen of any town, or the mayor and. al- dermen of any city wherein any turnpike, highway, town- way, (or travelled place, St. 1849, c. 222, § 2,) crossed by any railroad on a level therewith is situated, shall be of opinion that it is necessary for the security of the public that said turnpike, highway or townway should be raised or lowered, so as to pass over or under said railroad, said selectmen or mayor and aldermen may in writing request the corporation to which said railroad belongs to raise or lower said ways ; and if said corporation shall neglect or refuse so to do, said selectmen or mayor and aldermen m.ay apply to the county commissioners of the county, within which said town is situated, to decide upon the reasona- bleness of such request, and if said commissioners, after due notice and hearing of the parties, shall decide that the raising or lowering of said ways is necessary for the security of the public, said corporation shall comply with DTTTIES 01' SElECTMEir, &C. 365 said decision, and shall pay the costs of the application ; and if said commissioners shall be of opinion, that said alteration of said ways is not necessary, the said selectmen, or mayor and aldermen, shall be liable to pay the costs of the application ; and if said corporation shall unreasonably neglect or refuse to carry into effect the decisions of said commissioners, such selectmen or mayor and aldermen may proceed to do it, and may institute and prosecute to final judgment and execution in any court proper to try ' the same, an action of case against said corporation, and recover the amount of all charges, expenses, labor and services occasioned by making such alteration with costs of suit. Stat. 1842, c. 22. 5. Every rail road corporation which may hereafter con- struct a railroad across any turnpike, highway, townway, (or travelled place, St. 1849, c. 222, § 2,) shall construct it so as to cross over or under said turnpike, highway, town- way or travelled place, but the county commissioners of the county in which said crossing is situated, upon the application of the railroad corporation, or of the proprie- tors of the turnpike, or of the selectmen of the town, or mayor and aldermen of the city, after hearing the parties, may authorize the railroad corporation to construct said railroad upon a level with said turnpike, highway or town- way, and if they shall consider it necessary may require gates and an agent as is provided in the first section. Stat. 1846, c. 271. 6. Every railroad corporation, and the proprietors of every steamboat in this Commonwealth, engaged in the transportation of passengers, shall, once in every six months, on the first Monday of January and of July in each year, publish a descriptive list of all trunks, carpet bags, valises, parcels, and passengers' effects whatsoever, which may at any time have been left, and shall on such day remain unclaimed at any passenger station or office, 32* 366 TOWN OPPICEE. or otherwise in the possession of such corporation, or proprietors, or their agents. The said list to indicate all such specific marks as may serve to identify the same. And the said publication to be made in one newspaper, at least, in every county of the Commonwealth in which such railroad corporation or steamboat proprietors may have a passenger station or oifice. Stat. 1851, c. 147. 7. If, at the expiration of six months after such adver- tisement as aforesaid, any of the articles so advertised shall still remain unclaimed, then the railroad corporation or steamboat proprietors, in whose possession they may be, shall give notice to the mayor and aldermen of the city, or the selectmen of the town, in which, respectively, said articles may be ; and the said mayor and aldermen, or selectmen, shall cause the said articles to be examined, and may either order them to be sold at public auction, first advertising them in manner and place as aforesaid, or may, in their discretion, order the said articles, or any of them, to be again advertised, and to remain another six months before being sold. Stat. 1851, c. 147, § 2. 8. The proceeds of all articles thus sold, after deducting costs of storage, advertising, and other expenses, due to the railroad corporation or steamboat proprietors aforesaid, and also the costs of the said examination and sale, shall be paid over to the treasurer of the Commonwealth, for the use of the same. Stat. 1851, c. 147, § 3. DITTIES OF SELECTMEN, &C. 367 XIX. OTHER DUTIES OF SELECTMEN. 1. Selectmen may offer reward of not more than two hundred 'dollars for securing offenders. 2. Payment of the reward. 3. Mayor and aldermen or selectmen to grant licenses to keep Intelligence ofiBces. 4. Duties and powers of selectmen or mayor and aldermen as to location, construction, &c., of telegraphic lines. Company subject to written regulations of selectmen. Power of selectmen Ac, to alter location &c. 5. Damages of land owners how re- covered; persons aggrieved on appraisal, entitled to a jury. 6. Compensation of selectmen &e. 7. County commissioners, city govern- ments, and selectmen to provide for preseiTaiion of public records. 8. Same subj ect, copies of old records. 9. One county, city, or town may take copies of records of another. ■ 10. Penalties for non compliance with this act. 11. Police officers how appointed, their powers and tenure of office. 1. The selectmen of any town or the mayor and alder- men of any city are authorized whenever in their opinion the public good may require it to offer a suitable reward to be paid by such town or city, not exceeding two hun- dred dollars in any one case, to any person who shall in consequence of such offer secure any person charged with any capital crime, or other high crime, or misdemeanor, committed in any such town or city, and such reward shall be paid by the treasurer of such town or city upon the warrant of the selectmen, or mayor and aldermen. Stal. 1840, c. 75, § 1. 2. When more than one claimant shall appear and apply for the payment of the reward, the selectmen, or mayor and aldermen shall determine to whom the same shall be paid, and if to more than one person, in what proportion to each, and their determination shall be final and conclu- sive in law upon all persons whatsoever. Stat. 1840, c. 75, § 2. 3. The mayor and aldermen of any city, or the select- men of any town, may grant licenses for the term of one year to suitable persons to keep Intelligence Offices, and may revoke and annul the same whenever they may deem it expedient ; and they shall be entitled to have and re- cover for each license so granted the sum of one dollar and no more. St. 1848, c. 270, § 2. 368 TOWN OrFICEE. 4. The selectmen of any town, or mayor and aldermen of any city, through, which the lines of any telegraph company pass, shall give said company their writing spec- ifying where the posts may be located, the kind of posts that may be used, the' height at which and the places where the wires may be run, which writing shall be recorded in said town or city, and such company in building its line shall follow the regulations of such writing. After the erection of said telegraph lines, the said selectmen, mayor and aldermen, shall have the power of directing any alteration in the location and alteration of said posts, piers or abutments, and also in the height at which the wire, may run, having first given such company or its agents opportunity to be heard on such alteration, and such de- cision shall be recorded in the registry of said town or city. Slat. 1849, COS, § 3. 5. Any owner of real estate who shall consider himself damaged by such construction may apply to the selectmen of any town, or mayor and aldermen of any city, in which such lands lie, within three months after such construction, to assess and appraise this damage. The appraisers after being sworn shall on view make a just appraisal of the loss or damage to the applicant by reason of such con- struction, duplicates of which appraisal shall be made in writing signed by said appraisers, one copy of which shall be delivered to said applicant and the other to the com- pany or its agent on demand. Any person aggrieved by any such assessment is entitled to a jury, in which, case the proceedings shall be according to the E.. S. c. 24, § 76. Stat. 1849, c. 93, § 4. 6. The selectmen, mayor and aldermen shall receive for their services performed under the preceding section each the sum of two dollars per day. Stat. 1849, e. 93 § 5. 7. It shall be the duty of the county commissioners of the respective counties, the city government of cities and DUTIES OP SELECTMEN, &C. 369 the selectmen of tlie several towns, in this Commonwealth, to have all books of public record or registry, belonging to said counties, cities or towns, respectively, well and strongly bovmd, and other papers and documents duly filed and arranged in a careful and orderly manner, con- venient for examination and reference. They shall also provide, at the expense of the county, town or city, a suitable place for the safe keeping and preservation of the public records and other valuable documents, where they shall be deposited and securely kept. Stat. 1851, e. 161, §1. 8. It shall be the duty of the county commissioners of the respective counties, the city government of cities, and the selectmen of the several towns of the Commonwealth, to provide for the particular security and preservation of all the records of their respective counties, cities and towns ; and in cases where, from any cause, they have or may' become worn, mutilated or illegible, it shall be their duty to have a fair copy of such records seasonably taken, by competent and skilful transcribers, at the expense of the county, town or city, to be preserved in like manner as the originals, the same to be certified to be true copies from the originals, by the clerk of such county, city or town. Stat. 1851, c. 161, § 2. 9. The commissioners of any county, the mayor and aldermen of any city, or the selectmen or overseers of the poor of any town, in this Commonwealth, are hereby au- thorized, when the interest of such county, city or town shall so require, to have copies taken for the use of said county, city or town, by a skillful and competent hand, at the expense of the said county, city or town, of any orig- inal records, or parts of the same, or of any papers or documents in the legal custody of any other county, city or town, which copies shall be certified to be true copies by the clerk of the county, city or town, from which they 370 TOWN OFFICEK. are taken, and shall be subject to tbe like control, care and regulations, as the other records and files of the coun- ty, city or town, for whose use they are taken. Stat. 1851, c. 161, § 6. 10. Any county, city or town, neglecting or refusing to fulfil the requirements of this act, or any one of them, shall forfeit and pay for each ofience the sum of twenty dollars. Slat. 1851, c. 161, § 7. 1 1 . The mayor and aldermen of the several cities, and the selectmen of the several towns, in this Commonwealth, may, from time to time, appoint such police officers for their respective cities and towns as they may judge nec- essary, with all or any .of the powers of constables, except the power of serving and executing any civil process. And the said police officers shall hold their offices during the pleasure of the mayor and aldermen, and selectmen, by whom they are respectively appointed. St. 1 8 5 1 , c. 162. SUKVEYOKS OF HIGHWAYS, AND REPAIR OF HIGHWAYS. 1. Choice and qualificationB of sur- veyora. 2. Penalty for refusing to serve. 3. " for neglect of duty. 4. May be prosecuted for deficiency of highways, in case, &c. 5. Limits of sur '^eyors to be asign- ed hy selectmen or assessors. 6. Construction of the statute. 7. Highways to he kept in repair by towns. 8. If loss of life happen, through defect, Ac, the executors, Ac, may re- cover $10 JO. 9. Uamag-es recoverable for jnjurie^. through defect or want of repair ^of highway. 10. One travelling on Sunday not Jrom necessity or charity cannot main- tain an. action. H. An action ^cannot be maintained by a party who goes -.put. 'of the high- way because of the.defuct. 12. From" what^time town is re- sponsible for a defect in highway. 13. An action cannot be'maintained for damages caused by the obstruction, of thjB road by snow. 14. Obstructions in a highway though not in a travelled part are de- fects for which the town is liable. 15. Damages recoverable against a town are for injury to the person or property only. 16. Towns liable for roads be- ing witliout rails or barriers, Ac. 17. Towns liable for injuries oc- casioned by defects in roads, though the primary cause ■ of the injury is a '.pure accident. 18. In computing the twenty four hours the Lord's day is to be included. 19. City liable for damages to a person who receives injury by the fall ol awning projecting over the side- walk. 20. Eemedy of towns againSt rail- roads for damages recovered of the tovra for a defect in a highway within the I location of the railroad and for which I damages the railroad was liab|@. STTEVETOES OF HIGHWAYS. 371 21. "Weight of load on road not to exceed six tons . 22. Party liable, may tender Buf- flcient, &c. 23. Penalty on towns, for neglect, &c. 24. Fines imposed, to be appropria- ted for repairs. 25. If town, &c., has, within six years, made repairs, they shall not deny location. 26. Surveyors liable to towns for defioiencies, &c. 27. Towns pay all damages occas- ioned by repairs of ways. 28. Towns may regulate traveling over town bridges, in case, &c. 29. By laws in such case to be post- ed up. 30. Gates, rails, <£c., on highways and town ways may be removed. 31. Same subject. 32. Towns may raise money to be expended in labor and materials to repair highways. 33. Towns may raise highway tax- es in money. 34. Non-residents, how assessed for highway, 35. Surveyors of highways author- ized to remove all obstructions. 38. Surveyor, not to remove any fence, Ac., put np to prevent the spreading of diseases. 37. Surveyors shall not turn water courses so as to incommode, &c. 38. Half the tax to be expended before the first of July. 39. Money, how expended- 40. Surveyors to give notice of the times for working taxes. 41. Delinquents, to be returned to assessors, and their tax to be collected in money. 42. Surveyor's power when the sum voted is deficient, or not paid in. 43. If towns neglect to raise money, surveyors, with consent of selectmen, may repair at town's expense. 44. Surveyor cannot repair at his own expense aud charge towu, 45. Surveyors may be authorized to contract for repairing ways. 46. Surveyors may be authorized to collect taxes in money in case, &o. 47. Surveyors to exhibit tax bill and render account of moneys ex- pended. 48. Surveyors to pay over any surplus in their hands. 49. Penalty for any neglect to pay over. 1. Each town shall choose at the annual meeting in such manner as it shall determine, one more suitable per- sons to be surveyors of highways, who shall be sworn to a faithful discharge of the duties of office, i?. S. c, 15, §33. 2. If any person, chosen surveyor of highways, shall re- fuse to serve in that office, he shall forfeit to the use of his town, a sum not exceeding ten dollars ; but no person shall he obliged to serve in that office oftener than once in three years. lb. § 81. 3. Every surveyor of highways, who shall accept that trust and neglect the duties of his office, shall forfeit to the use of the town, the sum of ten dollars for each neglect, lb. § 82. 4. Any surveyor of highways may be prosecuted by in- dictment, for any deficiency in the highways within his lim- its, occasioned by his fault or neglect. lb. § 83. See 11 Met. 108. 372 TOWN OPrlCEE. 5. The selectmen or assessors of every town, having more than one surveyor of highways, shall annually, in writing, before the first day of May, assign to each sur- veyor the limits and divisions of the highways and town ways, to be kept in repair by him. S. S. c. 25, § 7. 6. In the construction of a similar provision in the stat- ute of 1796, ch. 58, sec. 4, the court held that the power of the surveyor did not result from this act of the select- men : that it merely "constituted him the sole judge of the duty to be performed within his limits ; whereas, if no limits were assigned, it might be necessary for all the sur- veyors to act together, or by the voice of a majority of them. The statute being merely directory, their powers did not depend upon its being executed. 1 Pick. 426. 7. All highways, town ways, causeways and bridges, within the bounds of any town, shall be kept in repair, at the expense of such town, where other sufficient provision is not made therefor, so that the same may be safe and convenient for travelers, with their horse^ teams and car- riages, at all seasons of the year. H. S. c. 26, § 1. 8. If the life of any person shall be lost, by reason of any defect or want of repair of any highway, town way, causeway or bridge, or for want of suitable rails on such way or bridge, the county, town or person, that is by law obliged to repair the same, shall be liable to a fine of one thousand dollars, to be recovered by indictment to the use of the executor or administrator of the deceased person, for the benefit of his heirs, devisees or creditors ; provided, that the said county, town or person, shall have had pre- vious reasonable notice of such defect or want of repair cf such way or bridge. lb. § 21. 9. If any person has heretofore received or suffered, or shall hereafter receive or suffer, any bodily injury, or any damage in hig prpperty, through any defect or vrant of re- pair, or of sufficient railing in Or upon any highway, town- SUETEfOKS OF aiGSWATS. STS %vay, causeway, or bridge, he may recover, in a special ac- tion of the case, of the county, town, or persons, who are by law obliged to repair the same, the amount of damage sustained thereby, if such county, town, or persons, had reasonable notice of the defect, want of repair, or of suf- ficient railing, or if the same had existed for the space of twenty-four hours previous to the occurrence of the- injury or damage. 10. A person who travels on the Lord's day neither from necessity or charity, cannot maintain an action for an injury received by him while so traveling, by reason of a defect in a highway which a town is obliged to repair. 10 Met. 363. 1 1 . An action against a town under this section, cannot be maintained by a party who goes out of the highway be- cause of the defect, and there receives an injury. 8 Met. 388. 12. The town becomes responsible for an injury occa- sioned by a defect in a highway from the time when the- way is opened for public travel, and it is no justification to the to-wn that such defect existed in the road as it was left by the commissioners. \Z Pick. 102. 21 Pick. 44. 13. An action cannot be maintained against a town for damages alleged to have been caused to the plaintiff by the obstruction of the road by snow by reason whereof he was prevented from traveling on the road. QOush. 141. 13 Met. 297. 14. Obstructions in a highway though not on a traveled part are defects, for injuries caused by which towns are responsible, whether placed there by the owner of the soil over which the highway is laid, or by others. 1 Oush. 443. 15. The damages recoverable against a town are for an injury'to the person or property only, and not merely on account of a risk or peril which causes fright and mental suffering. 1 Ckish. 451. 374 lOtTN OiTICEK. 16. A town will be liable for an injury occasioned by tbe want of a rail oi barrier, if sucli rail or barrier were necessary for the proper security of travelers and would bave prevented the happening of the injury complained of. 2 Cush. 600. 17. A town is lia;ble for an injury occasioned by a defect in a highway where the primary cause of the injury i^ a pure accident, provided the accident occurs without the fault or negligence of the party injured, and provided the injury would not have been sustained but for th6 defect in the highway. 2 Oush. 600. 18. In computing the time of twenty-four hours, during which a defect in a highway must have existed, in order to render a town liable for an injury occasioned thereby, the time of the Lord's day is to be included. 4 Oush. 243. 19. A city is liable to pay damages to a person who re- ceives an injury by the fall of an awning projected over the sidewalk of a street by the owner of a building, if the awning be dangerous to travelers for the space of twenty- four hours before the injury happeias. 13 Met. 292. 20. Whenever any party shall be injurted injhis person or property, by a defect in the highway, within the location of any railroad, and such party shall, upon a trial, recover of the town wherein such injury is received, damages there- for, such tovra. shall, in addition to the damages so recov- ered against them, be entitled to recover aU the taxable costs of the plaintiff and defendant in the same action, in a suit brought against the corporation owning such rail- road : provided, that such railroad corporation be liable for the damages aforesaid: and provided, also, that reasonable notice" shall have been given by such town to the railroad corporation, so that they might have defended the original action. Stat. 1851, c. 88. 21. No town or other corporation shall be liable for damages for any deficiency in their liighways or bridges^ sirsvETOKS or highways. 373 to any person wliose carriage and load thereoH stall exceed the -weiglit of six tons. Stat. 1838, c. 104. 22. If, before the entry of any action provided for in the ninth section, the defendant tender to the plaintiff the amount which he would be entitled to recover, together with all legal costs, and the plaintiff do not accept the same, and do not recover upon the trial more than the sum so tendered, the defendant shall recover his costs. R. S. e. 25, § 23. Stat. 1852, c. 140. 23. If any town shall neglect to repair any of the v,-ays or bridges, which it is by law obliged to keep in repair, or shall neglect to make the same safe or convenient, when incumbered with snow, such town shall be liable to pay such fine as the court, in its discretion, may order, li. §24. 24. All fines, imposed on any town, for deficiencies in the ways and bridges within the same, shall be appropriated to the repairing of such ways and bridges ; and the court, imposing any such fine, shall appoint one or more persons, to superintend the collection and application of the same to the purpose aforesaid ; anij every person so appointed shall make a return of his doings therein to the said court. 76. § 25. 25. If, on the trial of any indictment or action, brought to recover damages for an injury, received by reason of any deficiency or want of repair, in a highway, town way, cause- way or bridge, it shall appear that the county, town or per- son, against whom such suit is brought, has, at any time, within six years before such injury, made repairs on such way or bridge, it shall not be competent to such county, town or person to deny the location thereof 7S. § 26. 26. In case any town shall be sentenced to pay a fine, for a deficiency in the highways or town ways within the same, the surveyor, within whose limits suoh deficiency may be found, shall be liable to the town for the amount 376 lowu orpicEEi of such fine and all costs of tlie prosecution, to be recoV' ered by tbe town in an action of tbe case, provided sucb deficiency exist through the fault or neglect of such sur- veyor. R. S. c. 15, § 84- 27. When any owner of land, adjoining a highway or town way, in any, town or city, shall sustain any damage in his property by reason of any raising, lowering, or other act, done for the purpose of repairing such way, the said owner shall have compensation therefor, to be determined by the selectmen of the town^ or the mayor and aldermen of the city ; and if the owner shall be aggrieved by such determination of the selectmen or mayor and aldermen, he may have his damages ascertained by a jury, in like man-= ner as they are to be ascertained ia the case of laying out highways ; and they shall allow, by way of set-off, the ben- efit, if any, which the complainant may receive by reason of such alteration or repair. R. S. c. 25, § 6. The owner is not entitled to damages until the act of raising or lowering is done. 8 Met. 172. 28. Any town may, at any annual meeting, establish by- laws to prevent all persons from riding or driving horses, at a rate faster than a walk, over any bridge, within the limits of such town, which 3hall have cost not less than five hundred dollars ; and annex penalties not exceeding one dollar for any breach thereof, to be recovered in the name of the town treasurer ; but such by-laws shall first be ap- proved by the commissioners for the county in which such town .lies. lb. § 45. 29. No person shall be liable to any of the penalties in the preceding section, unless such town shall cause to be posted up and kept at each end of the said bridges in some conspicuous place, a board painted with a white ground, containing in black letters the substance of its said by-laws. Ih. § 46. 30. It shall be lawful for any person to take down and SXTETETOES OE HIGHWAYS. 377 remove any gates, rails, bars or fence, upon or across any highway, unless the same shall have been there placed, for the purpose of preventing the spreading of any disease, dangerous to the public health, or unless the same shall have been erected or continued by the license of the coun- ty commissioners for the same county, or of the selectmen of the town : and any person, so aggrieved by such taking down and removal, may apply to the said commissioners, or said selectmen, respegtively, who, if it shall appear that such gates, rails, bars or fence were erected by license as aforesaid, may order the same to be replaced. Ih. § 27. 31. If any gates, rails, bars or fence shall be upon or across any town way or private way, the same may be re- moved by the order of any justice of the peace of the coun- ty where such way is, unless the same shall have been there placed, for the purpose of preventing the spreading of any disease dangerous to the public health, or unless the same were erected or continued by license of the town or of the person for whose use such private way was laid out ; and any person, aggrieved by such removal, may ap- ply to the commissioners for the same coujxty ; and if upon examination, it shall appear that the same were erected or continued by license as aforesaid, the said commissioners shall order them to be replaced, lb. § 43. 32. Every town shall raise such sum of money to he ex- pended in labor and materials , on the highways and tovni- ways, as it shall determine to be necessary ; and the as- sessors shall assess the same on the polls and estates, real and personal, of the inhabitants, residents and non res- idents, as other town charges are assessed ; and shall de- liver to each surveyor a list of the persons within his lim- its, and the sums at which they are severally assessed. Ih. § 8. 33. Any town may vote to raise any sum of money, which such town may judge necessary, for making and 32* 878 TOWN OFFICEE. repairing the highways and townways within the same ; and may further order, that the same shall be assessed up- on the polls and estates of the inhabitants, residents, and non residents of their town, as other town charges are as- sessed, and the same shall be collected as other town taxes are collected, lb. § 9. 34. The lands of non resident proprietors shall be taxed for the making and repairing of highways, in the same manner as for other town taxes ; and upon default of pay- ment, the same proceedings shall be had, as are provided for the collection of other town taxes of such persons. lb. § 20. 35. Every surveyor of highways shall have full power (except as provided in the following section,) to cut down or lop off all trees and bushes, and to dig up and remove all stones, stumps, fences, gates, bars, enclosures, or other things, that shall in any manner obstruct or incumber any highway or town way, or hinder, incommode or endanger persons traveling thereon ; and when any such way is incumbered with snow, he shall also forthwith cause the same to be removed or so trodden down, as to make the way safe and convenient. lb. § 3. 36. No surveyor or other person shall remove or take down any fences, gates, or bars, placed on any highway or town way, for the purpose of preventing the spreading of any disease, which may be dangerous to the public health. lb. § 4. 37. No surveyor of highways shall, without the appro- bation of the selectmen first being had in writing, cause any water-course, occasioned by the wash of a highway or town way, to be so conveyed by the side of such way, as to incommode any person's house, store, shop, or other buildings, or to obstruct any person in the prosecution of his business ; and any person, aggrieved by the convejdng of such water-course, in the manner aforesaid, may com- STJBVEYOE.S Or HIGHTVATS. 379 plain to the selectmen, wto, on receiving such, complaint,' shall view the water-course complained of, and after due examination of the same, may direct the surveyor to alter the said water-course, in such manner as they shall de- termine, lb. § 5. 38. One half, at least, of the sums of money, granted hy any town, for repairing highways and town ways, shall he laid out and expended for that purpose, hefore the first day of July next after the same shall have been- granted. lb. §10. But by the statutes of 1847, ch. 254, this provision is so far repealed that any town, at a legal meeting called for that purpose, may determine at what time or times the money wanted by su.ch town, for repairing highways and town ways, shall be laid out and expended. Until •such action has been had by a town, it must be governed in its expenditure by the foregoing note. See Stat, of 1847, c. 254. 39. When any town shall, by vote, direct that a part of the money raised to be expended in labor and materials on the highways and town ways, shall be expended in the months of March or April, of the year succeeding that in which it is raised, the surveyors of highways chosen for the year in which such money is raised, are authorized and re- quired to expend the same, according to the directions of such vote : provided, that if the same is thus directed to be expended after the surveyors of highways, for such suc- ceeding year, are chosen and qualified, it shall be expend- ed by the surveyors having such tax committed to them, under the direction of the surveyors of such succeeding year, having charge .of the repairs of the highways and town ways in the district in which the same is to be thus expended. Stat. 18S9,c. 144^. 40. The surveyors shall (except where highway taxes are collected, as provided in the twenty-fourth section,) 380 TOWN OFFICEE. give reasonable notice, as directed by the town, to each person in his list, of the sum he has assessed to the high- ways and town ways ; and shall also give to the inhabitants, within the limits of his district, who may be assessed as aforesaid, seven days' notice of the times and places he shall appoint, (extraordinary casualties excepted,) for pro- viding materials and working on the highways and town ways ; and each inhabitant shall have an opportunity to work thereon, in person or by his substitute, or with his oxen, horses, cart and plow, at the prices which the town shall affix to such labor, to the full amount of the sum, at which he is assessed ; but if any person so assessed shall pay to the surveyor, in money, the sum assessed to him, the surveyor shall, according to his best judgment, carefully expend the sum so paid in repairing the said ways. B. 5'. c. 25, § 11. 41. The surveyor, at the expiration of his term, shall render to the assessors a list of svich persons, (if any,) as shall have neglected or refused to work out or otherwise pay their highway tax, when required by him, as provided in the preceding section ; and such deficient sums shall be placed by the assessors in a distinct column, in the next assessment of a town tax upon such delinquents, and col- lected like other town taxes, and paid into the town treas- ury. 76. § 12. 42. Whenever there shall be a deficiency either of la- bor or money, in the amount appropriated for the repair of highways and town ways, within the limits of any survey- or, or when the said amount shall not have been furnished or paid to the surveyor, so that he is unable to make such repairs, he may employ any persons to. make such repairs ; and the persons so employed shall be paid therefor by the town ; provided that the sum so expended, by any such surveyor, shall not exceed ten dollars, lb. § 13. His authority is to employ other persons to make such StJfiTEIfOES OF HlflHWAtS. 38l tepairs. Those persohs and not the surveyor may recov- er pay of the town for their labor. 9 Met. 522. 43 i If any town shall neglect to vote a sufficient sura of money, for the purpose of repairing the highways and townways, or shall not otherwise effectually provide there- for, each of its surveyors, first having obtained the con- sent of the selectmen for that purpose, in vnriting, may employ any persons to repair the said highways and town- ways, in their respeotivB districts, so that the same shall be safe and convenient for travelers, at all seasons of the year, and the persons so employed shall be paid therefor by said town. lb. § 14. 44. A surveyor of highways has no authority to repair a way at his own expense, and then to call upon the town for an indemnity ; and where a surveyor, before his limits were assigned, without consulting the other surveyors, re- paired a way, which upon the assignment did not come within his limits, it was held he was without remedy. 4 Pick. 149. 45. Every town may authorize their surveyors or any other person, to enter into contracts for making or re- pairing the highways or town ways within the same. S, S. c 25, f 15. 46. Every town may also empower their surveyors to collect all such taxes, as shall not be paid in labor or oth- erwise, within the time limited by law, or at such periods as may be agreed upon by the town ; and for that purpose, the assessors shall deliver to them warrants of distress, which shall be in substance like the warrants prescribed by law for collecting other town taxes; or they may deliver a warrant for collecting the deficiency in any highway tax to the collector, who shall then proceed to collect the same, in like manner as other taxes are by law to be collected, and shall pay over the same to the respective surveyors, who shall be held to account with the selectmen for tJie ex nenditure thereof, lb . § 16, 382 TOWN OPFICEB. 47. Every surveyor, wlio shall receive his tax bill, shall exhibit the same to the selectmen, on the first Monday of July annually, and also at the expiration of the term for which he shall be appointed ; and at those times, respec- tively, shall render an account of all moneys that have been expended by him on the highways and town ways ; and if he shall, in any such case, be guilty of any neglect, he shall for each offence forfeit a sum not exceeding fifty dollars, to be recovered by the said treasurer, to the use of the town. lb, % 19. 48. If any money shall remain unexpended in the hands of the surveyors, after the expiration of their office, they shall pay the same to the town treasurer. lb. § 17. 49. If any surveyor shall neglect to pay over such sums to the said treasurer, upon demand, the treasurer may re- cover the same in an action for money had and received, with twenty per cent, in addition thereto, to the use of the town. 75. § 18. TOWN CLERK. L GENERAL DUTIES. 1. How chosen and qualified. 2. Town clerk pro tempore when chosen. 3. Clerk to keep records. 4. Records of proprietors of town- ships and of common lands not other- wise disposed of to be deposited with clerk of city or town. 5. Copies of old records to be oertii^ fled by the clerk. 6. Where copies are taken iirom the records of another town they are to be certified to by the town clerk. 7. Penalty for non compliance. 8. In case of death, ^c, selectmen may appoint a clerk. 9. The clerk pro tempore to make a record of his own election. 10. To record all votes — 11. May make record of his own elec- tion. 12. When he received record. 13. To notify town officers of their elegtioQ. 14. Persons elected to any town office in which oath is not required to be sum- moned to appear beibre town clerk and declare acceptance. Penalty for neglect. 15. To administer oaths of office and make record of their administration. 16. Town clerks ^lay administer oaths to appraisers, &g. 17. To preside in the choice of a mod- erator. 18. To file copies of physicians' an shall be made of brass, steel, or iron, and, in all cases, the edges and bearings shall be of hardened steel or agate. The dry measures to be made, in form and dimensions, to conform to the aforesaid standard ; all to be proved, sealed, and marked, by said standard as aforesaid. Ih. § 8. 9. There shall be furnished to the treasurer of each county, and the treasurer of each city and town, in this Commonwealth, a complete set of the standard weights, measures and balances,Such as the treasurer of each county and the treasurer of each town is required to keep at the expense of such county, city or town respectively by the provision of the eighth section. Stat 1848, c. 332. 10. The treasurer of each county, and the treasurer of each city and town shall provide at the expense of such county, city and town respectively, some suitable place in their said counties, cities, or towns for the safe and suit- 404 TOWN OITICES. able keeping and preservation of said weights meas- ures and balances and all expenses attending tbe bor- ing, putting up, transporting, and depositing in tbeir des- tined locations said weights, measures and balances, shall be defrayed by the counties, cities and towns respectively. Stat. 1848, c. 332, § 2. 11.. The treasurer of each county and the treasurer of each city and town, shall have the care and oversight of said weights, measures and balances, and shall see that the same are kept in good order and repair, and in case they are lost, destroyed, or irreparably damaged shall replace the same by similar weights, measures and balances, and all expenses incurred under the provisions of this section shall be defrayed^by. the counties, cities and towns respect- ively. Stat. 1848,- c. 332, § 3. 12. If the treasurer of any county, city or town shall neglect to provide a suitable place to keep the said weights measures and balances, or shall neglect to keep them in good order or repair, or shall suffer them to be lost, dam- aged or destroyed through his neglect, contrary to the true meaning and intent of this act he shall forfeit the sum of two hundred dollars to be recovered by indictment- to the use of the Commonwealth. Stat. 1848, c. 332, § 4. 1 3. Every town and city treasurer shall once at least in ten years, at the expense of the town or city, have the town or city standards of weights, measures and balances, tried, adjusted and sealed, by the treasurer of the county, in which the town or city is situated,or by the treasurer of the Commonwealth or his deputy, and every town or city treasurer, who shall neglect to have the standards under his charge, sealed as herein provided shall forfeit to the use of the Commonwealth a sum not exceeding fifty dol- lars. St. 1848, c. 332, § 5. 14. The treasurer of the Commonwealth is herewith authorized and directed to furnish to the treasurer of each ■WEIGHTS, MEASURES, AND BALANCES. 405 town in. this Commonwealth, which has been incorporated since the year one thousand eight hundred and forty- eight, and for which the same has not already been furnish- ed, and also to the treasurer of each town that shall here- after be incorporated.a complete set of the standard weights, measures, and balances, such as was furnished to the then several towns, under authority of an act passed on the tenth day of May, one thousand eight hundred and forty-eight, to be cared for, kept in repair, adjusted and sealed, in the manner prescribed in said act : provided, that the cost of each set shall not exceed the sum of one hundred and fifty dollars. And the governor is hereby authorized to draw warrants accordingly. Staf. 1860, c. 295. 15. One or more suitable persons shall be annually ap- pointed in each town, to be sealers of weights and meas- urers for such town. R. S. c. 30, § 12. 16. The selectmen may remove from office any sealer of weights and measures in their town, and may fill all va- cancies occasioned by such removal or otherwise. lb. §13. 17. When any town shall vote to have more than one sealer of weights and measures, the treasurer of the town shall, at the expense thereof, procure and preserve the nec- essary additional seals, weights and measures before spec- ified ; so that each sealer in such town may have complete sets of the same. lb. § 14. 18. Every sealer of weights and measures shall receive of the town treasurer the said town standards and seal, and shall give him a receipt therefor, expressing the condition in which the same may be ; and he shall be accountable to the town for the due preservation of the same in the like condition, until he shall re -deliver them to the treas- urer, lb. § 16. 19. When any commodities shall be sold by the hundred 406 TO"wif orricEK. weight, it shall be understood to mean the net weight of one hundred pounds avoirdupois ; and all contracts con- cerning goods sold by weight shall be understood and construed accordingly. Ih. § 25. 20. Every public weigher of goods or commodities shall weigh the same, according to the provisions of the preced- ing section, and make the certificate accordingly. Jh. § 26. 21. Every public weigher, who shall offend against the provisions of the preceding section, shall, for every such, offence, forfeit to the use of the town a sum not exceeding ten dollars ; and every weigher of goods or commodities, appointed by any town, and every weigher of goods or com- modities, for hire or reward, shall be deemed and taken to be a public weigher, so far as relates to the provisions of this and the preceding section. -?&. § 27. 22. No person shall sell any salt, Indian corn, wheat, rye, buck-wheat, barley or oats, unless the quantity so sold be first weighed ; and in order to ascertain the mean or true weight, the vender shall weigh ten measures at least in every hundred bushels sold, five measures at least in every fifty bushels sold, and two measures at least in every less quantity than fifty bushels sold ; and a bushel of salt shall be deemed to be seventy pounds, a bushel of Indian corn or rye, fifty-six pounds, a bushel of barley or buck- wheat forty-six pounds, a bushel of oats thirty pounds, a bushel of wheat sixty pounds, as the standard weight and measure of the same in all purchases and sales thereof ; and every person, offending against the provisions of this section, shall, for every bushel of such salt and grain so sold, and in the like proportion for any greater or less quantity, forfeit the sum of two dollars, to be recovered in an action on the case to the sole use of any person who shall first prosecute therefor ; provided, that this section shall not be construed to extend to sales of any of the ar- ticles aforesaid, where the vender and purchaser shall appoint WOBK HOUSES. 407 a third person to measure or ascertain the weight or quan- tity of the same, or otherwise shall mutually agree thereon, nor to any sales of the articles aforesaid not exceeding ten bushels, where the purchaser shall not require the same to be weighed. B. S. c. 28, § 199. WORK HOUSES. 1. Towns may provide work housee, e fbohb who may be committed there- to 2. Punishment of drunkenness may be in workhouse instead of house of correction. 3. Directors, masters, Ac, of work bouses. 4. Overseers of poor to be directors, in case, &c. 5. Meetings of directors. 6. Towns may join in providing a work house in common. 7. Joint board of directors of such liouBes. 8. Each town to choose three of the directors. 9. If any town neglects to choose directors, the others to take the whole charge. 10. Quarterly and other meetings of the directors. 11. Board may choose moderator and clerk. 12. Board may make by-laws, &e. 13. Board may allow compensation to the master and assistants. 14. Compensation to master, &c.. to be paid by the towns interested. 15. Bemedy against towns neglect- ing to "pay. 16. .J^owns not to send more than their proportioo, in case. 17. Any town refusing to contribute to expenses, shall not use the work house. 18. Each town may furnish materi- als, &c, for the persons committed by its authority. 19. Masters to keep a register of persons committed, &c. 20. Controversies between the mas- ter and the overseers, how determined. 21. How persons duly committed may be discharged. 22. Persons committed, to he em- ployed — discipline. 23. Provision respecting foreigners committed. 24. Support of persons committed to work houses in certain cases. 25. Sum so allowed — how paid. 26. Profits and earnings, how to be appropriated. 37. Work houses may be discon- tinued. 38. Conatmction of this chapter. 1 . Any town may erect or provide a work liouse, for the employment and support of the following description of persons, that is to gay ; all poor and indigent persons that are maintained by, or receive alms from the town ; all per- sons, who, being able of body to work, and not having estate or means otherwise to maintain themselves, refuse or neglect to work ; all persona, who live a dissolute, va- grant life, and exercise no ordinary calling or lawful busi- ness ; and all such persons, as spend their time and prop- erty in public houses, to the neglect of their proper busi- ness, or, by otherwise misspending what they earn, to the 408 TOWN OFFICER. impoverisliment of themselves and their families, are likely to become chargeable to the town or to the Commonwealth. B. S. c. 16, § 1. 2. Any person who shall have become liable to impris- onment in the house of correction, upon a second convic- tion for the crime of drunkenness, as is provided in the eighteenth section of the one hundred and thirtieth chapter of the Revised Statutes, may be committed, at the discre- tion of the court or magistrate before whom he is convicted, to the workhouse, if any in the town or city where the offence was committed, instead of the house of correction. Stat. 1850, c. 263. 3. Every town, which has provided, or shall provide, a work house, may, at their annual meeting, choose three, iive, seven, or more directors of such work house, who shall have the inspection and government thereof, with power to appoint a master and all necessary assistants, for the more immediate care and superintendence of the per- sons received or employed therein, lb. ^i. 4. In all towns, where such directors of the workhouse shall not be specially chosen, the overseers of the poor shall be the directors thereof. 75. § 3. 5. The said directors, once in every month, and at other times, as occasion may require, shall hold meetings, for the purpose of determining the most eligible mode of dis- charging the duties of their office ; and, at their monthly meetings, they may make all needful orders and regula- tions, for the house under their charge ; and such orders and regulations shall be binding until the next town meet-' ing, and shall be submitted to such meeting, foi>'the con- sideration of the inhabitants, and if approved by them, the said orders shall remain in force until revoked by the town. lb. § 4. 6. Any number of towns, that shall so agree, may, at their joint charge and for their common use, erect or pro- WOKK HotrsEs. 409 ■vide a work house, for tte purposes before mentioned in tlais chapter, and may purchase land for the use of such house, io. § 5. 7. The ordering, governing, and repairing of any work house, erected or provided at the joint expense of two or more towns, and the appointing of a master, and necessary assistants, as well as the power of removing them from their respective offices aud trusts for misconduct, inca- pacity, or other sufficient cause, shall be vested in a joint board of directors, who shall, from year to year, be spec- ially chosen by tlJfe several towns, at their annual meeting. 76. § 6. 8. Each of the towns, jointly interested in any work house, shall choose three members of the board of direc- tors, provided for in the preceding section, unless all the towns so interested shall agree to choose a different num- ber ; and, in case of the death of any such director, or of his removal from the town for wnich he was chosen, the vacancy may be supplied by such town at any legal meet- ing, lb. § 7. 9. If any of the towns, jointly interested in any work house, shall neglect to choose their dii-ectors for said board, the directors, chosen by the other towns interested therein, shall have the whole charge'of said house. lb. § 8. 10. There shall be stated quarterly meetings of said joint board of directors, on the first Tuesday of the months of January, April, July, and October, to be held at the work house under their charge, for the purpose of inspect- ing the management and directing the business thereof; and meetings of the board may be called at any other time, by the overseers of the poor of any town interested in such house ; they giving notice of the time and occasion thereof to the other members of the board, in such man- ner as shall have been agreed upon, at any stated meeting thereof. 75. § 9. 11. The said joint board of directors, when duly assem- bled, may choose a moderator ; and, at their first general meeting, after their election, they shall appoint a clerk, who shall be sworn to the faithful discharge of his trust, and shall record all votes and orders of the said board. lb. § 10. 12. The said joint board of directors, at any general quarterly meeting, provided one half at least of all the mem- 410 TOWN orricEE. bers are present, shall have authority to make all reasona- ble orders and by-laws, not repugnant to the laws of the Commonwealth, for the ordering and regulating the work- house under their charge. Ih. § 11. 13. The said joint board of directors may also, at any such quarterly meeting, agree with the master and assist- ants, and order a suitable compensation for their services ; but all other matters, relating to any such work house, may be acted upon at any other meeting duly notified, pro- vided one third of the whole number of the board are present ; the doings of such last mentioiJbd meetings being subject, however, to be altered or revised at any general stated meeting. Ih § 12. 14. The yearly compensation of the master and assist- ants in any work house, jointly provided as aforesaid, (in addition to the allowance hereafter provided in this chap- ter for their services,) and also the expense of keeping the house in repair, shall be paid by the several towns inter- ested, in proportion to their state tax, at the time when the expense may have been incurred, or in such other propor- tion, as all the towns interested shall agree upon. lb. § 13. 15. If any town shall refuse or neglect to advance or re- imburse its proportion of the sums of money, mentioned in this title, after the same shall have been adjusted by the joint board of directors, the same may be recovered of such delinquent town, in an action to be brought by any per- son, whom the said board shall in writing appoint for that purpose. Ih. § 14. 16. No greater number of persons, belonging to any town shall be received into a work house, jointly provided as aforesaid, than such town's proportion of such house, when the receiving of them will exclude or be inconven- ient to such as belong to the other towns interested. Ih. § 15. 17. If any town jointly interested in any work house, shall refuse or neglect to provide its proportion of the necessary expenses of such house, or of the materials, im- plements, or other means of performing the work there re- quired according to its agreement, or to the directions of the said joint board of directors, such towns shall be de- prived of the privilege of sending any person thither, for so long time as it shall neglect or refuse to make such pro- yision. lb. § 16. 18. In addition to the proportion of expenses and other WOB.K HOTJSES. 411 things mentioned in the preceding section, to be furnished jointly by any towns, each of such towns may furnish such other materials, and implements and means of work, as the overseers of the poor of such town may choose, for the employment of any person committed to such house : and the master of the house shall receive such materials, im- plements and means of work, and keep them separate from those of the other towns, and shall be accountable to each town interested, as well for the cost, as for all profits and earnings, made by the labor of the persons committed to said ho\ise. Ih. § 17. 19. The master of each work house shall keep a regis- ter of the names of the persons committed, and of the towns to which they belong, with the time of their being received and discharged, and of their earnings respectively, to be submitted to the overseers of the poor of said towns, when they shall request it. lb. § 18. 20. All controversies, between the masters of each work house and the overseers of the poor of any town, respect- ing the accounts or other official doings of the masters, shall be determined by the directors of the house, at their general or quarterly meeting. Ih. § 19. 21. No person duly committed to the work house shall, within the time for which he was committed, be discharged, except by the police court, or the justice who made the commitment, or by the directors of the house at their gen- eral or quarterly meeting, or by the court of comanon pleas at any term held In the county where such house is, for good cause shown upon application for that purpose.* lb. § 20. 22. Every person committed to any work house shall, if able to work, be kept diligently employed in labor during the term of his commitment ; and in case he shall be idle and not perform such reasonable task, or stint, as may be assigned, or shall be stubborn and disorderly, .shall be pun- ished according to the orders and regulations established by the directors of such house. Ih. § 21. 23. "When any foreigner, or other person not having his legal settlement in any- town in this state, shall become idle or indigent, he may be committed to the work house '•'This provision, it is pi an, does not refer to paupers, but to idlers, vagabonds, &c. comTr.iUed to work houses by the courts or by jus- tices of the peace. 412 TOWN OFPICEK, provided for tte use of such town to be there employed, if able to labor, in the same manner, and subject to the same rules as the other persons there committed ; and the master of said house shall keep a true account of the charge of supporting such person, and shall exhibit the same once in every year to the General Court for allow- ance and payment ; credit being therein given for the amount of such person's earnings, lb. § 22. 24. Whenever any person not having a legal settlement within this Commonwealth, shall be committed to any work house by virtue of any law of this Commonwealth, for any cause for which such person might be committed to the house- of correction, there shall be allowed and paid for the support alid maintenance of such person, during the time of his commitment the same sum as would have l)een allowed and paid if such person had been com- mitted to the house of correction. Stat. 1846, c. 88. 26. The sum to be allowed and paid for the support of any person committed to any workhouse, as provided in the preceding section shall be paid to the overseers of such workhouse, in the same way and manner as is pro- vided in the one hundred and forty-third chapter of the Revised Statutes, for the payment of the expense of sup- porting and maintaining "persons committed to houses of correction. Stat. 1846, c. 88, § 2. 26. Of the profits and earnings from the work of per- sons committed to any work house, one third part shall be appropriated to the support of the master, in addition to such annual salary as the directors of the house may think fit to allow him ; and the other two thirds, together with the stock remaining on hand, shall be disposed of as the overseers of the several towns shall think proper, either to the use of their towns, or of the persons committed, or their families. lb. § 23. 27. Any work house may be discontinued or may be appropriated to any other use, whenever the town or towns interested shall decide that it is expedient, and shall deter- mine so to do. iJ. § 24. 28. Nothing contained in this title shall be construed to afi'ect any powers and privileges heretofore granted to any towns, or the overseers of the poor thereof, by an act specially relating to work houses erected in such towns. II. § 25, APPENDIX-FORMS. ASSESSORS. Notification to the inhabitants to bring in lists of their polls and estates. The inhabitants of the town of W — are hereby notified to bring in to the subscribers, assessors of said W — , on any day from to true lists of their polls and of all their estates both real and personal (not exempted from taxa- tion) of which they were possessed on the first of May instant A. B. ) Assessors of c. D. y w— W—, May 2, 1837. E. F. ) Rules for Assessing Taxes. Affix against every person's name the number of his polls and also a correct and descriptive list of his taxable property. Cast sis per cent upon each man's property, and carry out the result in the columns marked " reduced value." As there is no column for income, the value of everj/ person's income should be added to his personal estate. Let these several columns be correctly footed, in order to ascertain the total amount of polls and estates in the town. Of the Poll Taxes. One sixth part of the whole sum to be raised by any tax should be set upon the polls, as near as can be done conve- niently, unless it exceeds one dollar and fifty cents, upon an individual, in which case, that sum must be the poll tax, for city, town and county purposes, exclusive of the highway tax. Add together the town grant and the county tax, and di- vide the sum by 6. The quotient will be the sum to be assessed upon the polls ; divide this by the whole number of polls, and you have the tax upon each. II APPENDIX. Of the Apportionment upon the Estates. After subtracting the amount of the poll taxes from the gross amount of the money to be raised for the town and county, then apportion the balance upon the aggregate of property both real and personal, as contained in the totals of the columns marked " reduced value." EXAMPIE. The town of W. appropriates $5000 to defray town charges, and their county tax is $1650. They have 1050 polls; and the gross amount of their valuation (including real, personal and income) is $2,500,000. Six per cent, upon this sum gives $150,000 as their reduced valuation. 1. What sum is to be assessed upon a poll? 2. How much upon a reduced dollar in the valuation ? 3. What is the tax of .L. L. who has one poll, $30,000 in real, and $3000 in personal estate ? — Answer to first question. Town grant— 5,000 $ County tax 1,650 1050\ 1108,33 /'1,05. f on each 6x6650 /1050 ( I poll. y 1108,33 5833 5250 683 Answer to 2d question. 1050 polls at $1,05=$1102.50. Deduct this sum from 6650. 1102.50=5547.50. which is to be averaged upon the estates, thus : 150,000 : 5547,50 : : 1 : 003,69 That is, 8 cents 6 mills 450000 [and nine tenths of a mill [upon a dollar. 1047500 ^ 900000 1475000 1350000 125000 It will be perceived that the decimal might be pursued far- ther, but for practical purposes, we should assess 3 cents and APPENDIX. Ill 7 mills upon tho dollar which produces a fraction over the pre- cise sum of $2 50. Thus 150,000x003,7 i3=$5550.00. This fraction is called the overlaying, and it is usual to have it much larger. But in no case must it exceed five per cent, upon the tax. Multiply each man's reduced valuation by 003,7 and you have his tax. Answer to 3d question. What is the tax of L. L. ? — Real estate, $30,0i!0 at G per cent is=$1800. Personal, 3,000 reduces to 180 3,7 3,7 12600 5400 1260 540 $66,60| Real 6,66| 6,66 Personal 1.05 Poll $74.31 Total of tax. It is a more general method to follows : — form a scale or table a,s % 10,000 1000 % 100 $ 1,00 • $ 10,0 Cents 10 1 370,00 37,00 3,70 0,37 003,7 000,37 2 740 74,00 7,40 0,74 007,4 000,74 3 1110 111,00 11,10 1.10 011,1 001,14 4 1480 148,00 14,80 1.48 014,8 001,48 5 1850 185,00 18,50 1,85 018,5 001,85 6 2220 222,00 22,20 2,22 022,2 002,22 7 2590 259,00 1 25,90 2,59 025,9 002,59 8 2960 296,00 1 29,60 2,96 029,6 002,96 9 3330 333,00 1 33,30 3,3;; 033,3 003,33 To know L. L's tax on real, we find SIOOO pays 37.00 »800 29.60-1-66.60 on personal $100 3.70 $80 2.96-1-0.66 1 poll pays 1.05- -$74.31. IV APPENDIX. PAKISH TAXES. The principle is precisely the same as in town taxes. To the valuation should be added the amount of real estate owned by the parishioner, in every other town in the Com- monwealth , Warrant of Assessors to Collector. W. ss. To A. B. Collector of the town of W. in the • county of W , Greeting. In the ttame of the Commonwealth of Massachusetts you are hereby required by us the subscribers, assessors of said town, to levy and collect of the several persons named in the list herewith committed to you, and of each one his respective proportion therein set down of the sum total of such list, the sum of it being* this town's proportion of a tax of granted by the last general court of said Commonwealth for defraying the necessary charges and expenses of the county aforesaid, and a tax of — ■ — voted and agreed upon by the town aforesaid at a meeting legally held for that purpose, on the day of last for defraying the necessary charges and expenses thereof ; together with the sum of being the overlayings on said taxes, and also a further sum of for deficiencies in the highway taxes of the last year. And you are to eomplete and make up. an account of the collection of the whole sum, and transmit and pay over the same as follows — to wit — to A. C. Esq. treasurer of the county aforesaid, or his successor in that office, on or before the day of 1 next the sum of , to A, B. treas- urer of said town or his successor in that office, on or before the day of next, the sum of .t And if any person shall refuse or neglect upon demand by you made to pay the sum he is assessed in said list, you are to distrain the goods of such person to the value thereof, and the goods so distrained to keep at the expense of the owner for the space of four days at the least, and to sell the same within seven days after the seizure by public auction for the » If there are more collectors than one, say "apart of this town's proportion," &o. t Insert the day mentioned in the warrant from the county com- missioners. I Should the collector be treasurer, he may he directed to deposit the sums collected for town taxes, or hold them subject to the order of selectmen. APPENDIX. V payment of the tax and tho charges of keeping and of the sale ; first giving notice of such sale by posting up a notifica- tion thereof, in some public place in the town forty-eight hours at least before the sale. If the distress shall be sold for more than the tax and the charges of keeping the same and making the sale, you are to return the surplus to the owner on demand with an account in writing of the sale and charges. If any person shall refuse or neglect for fourteen days after demand thereof made to pay his tax, and you can- not find sufficient goods upon which it may be levied, besides tools OP implements necessary for his trade or occupation, beasts of the plow necessary for the cultivation of his improv- ed lands, military arms, utensils for house-keeping necessary .for upholding life, and bedding, and apparel necessary for himself and family, you are to take the body of such person and commit him to prison, there to remain until he shall pay the tax and charges of commitment, and imprisonment, or be otherwise discharged by order of law. Given under our hands by virtue of a warrant from the Commissioners of the county aforesaid, and the vote of said town passed on the day aforesaid, this day of in the year eighteen hundred and . A. B. c. D. y of E. F. ) W- » cts. County Tax Town Tax Overlaying Highway deficiencies The form of the tax list is given on page 51. Oeriifieate of the Assessment of County Tax to be returned to County Treasurer. Pursuant to a warrant from the County Commissioners of Worcester County, dated the day of in the year 183 We have assessed the polls and estates of the inhabitants of the Town of the sum of and have committed the lists thereof, to the Collector of said Town, viz : — ^to with warrant in due form of law, for collecting and paying in the same to TI APPENDIX. Treasurer of said County, or bis successor in office, on or before tbe* day of next, ensuing. In witness wbereof, we have bereunto set our bands, at this day of in tbe year 183 A. B. ] C. D. >- Assessors. B. F. ) Certificate of Assessment of Taxes to Selectmen, and Treasurer. To the Town Treasurer and to the Selectmen of tbe town ofS. We have assessed upon the polls and estates of tbe town of S tbe sums following, which we have committed to S. H. Collector of said town, with a warrant for collecting tbe same in- due form of law. State Tax, 214 : 75 N. W. ~| Assessors of County Tax, 14A -.14 L. ~ ' " Town Grant, 3200:00 M. Overlaying upon all the Taxes, 94 : 90 Highway deficiencies, 19 : 40 3314:30-;- f. W. 1 Assessors of Li. R. V the Town M. S J of S . 13669 : 19 5' , S^f. 1,18 Warrant of parish assessors to parish collector. W. ss. To A. B. Treasurer and Collector of taxes for the 2d parish of W. in said county, Greeting. In the name of the Commonwealth of Massachusetts, you are required to levy and collect of the several persons named in tbe list herewith committed unto yon, and of each one bis respective proportion therein set down, of the sum total of such list, it being a tax of- granted and agreed upon by said parish, at their meeting held for that purpose on tbe day of last by adjournment from the day of last, together with the sum of being tbe overlayings on said taxes, and you are to make up and complete an account of the whole of said sums and pay over tbe same to tbe asses- sors of said parish or.their order on or before the day of next. And if any person shall refuse or neglect to pay tbe sums so assessed, upon demand, you are to distrain the goods of " Insert the day in the warrant of the commissioners. APPENDIX. Til suoli person to the value thereof, and the distress so taken to keep, for the space of four days at the least, at the cost and charge of the owner , and to sell the distress so taken within seven days from the time of taking the same, by public auc- tion, for the payment thereof, and the charges of keeping, and of the sale ; first giving notice of such sale by posting up a notification thereof in some public place in said town, forty-eight hours at least, before the sale ; and if the distress shall be sold for more than the tax, and charges of keeping the distress and making the sale, you are to return the sur- plus to the owner upon demand, with an account in writing of the sale and charges. And if any person shall refuse or neglect, for fourteen days after demand thereof made, to pay his tax, and you cannot find sufiicieni goods, upon which it may be levied, besides the tools or implements necessary for his trade or occupation ; beasts of the plough necessary for the cultivation of his im- proved lands ; military arms, utensils for house-keeping nec- essary for upholding life, and bedding and apparel necessary for himself and family, you are to take the body of such per- son, and him commit unto the common goal of the county aforesaid, there to remain until he pay the same, and charges of commitment, or be otherwise discharged by order of law. Given under our hands by virtue of the vote of said par- ish, passed on the day of — ■■ — -last, this day of in the year of our Lord one thousand eight hundred and A. M. ) Assessors of the E. C. > parish in F. W. P. ) the town of W. Tax $3500,00 Overlayings 174,21 S.3674,21 Gommitmenl of the Highway tax to the. Surveyor of Highways. To A. B. one of the Surveyors of Highways of the town of W. The following is the bill of the highway taxes of the per- sons against whose names they are set, and which you are directed to have expended in work and materials upon the highways, tov.ii ways and bridges within the limits assigned to you l:y iue assessors or selectmen, as the case may be. Till APPENDIX. You are to give reasonable notice to each person hereia named of the sum he is assessed to highways and town ways, and also seven days' notice of the times and places you may appoint for providing materials and working on said highways and town ways in your district. You ai'e to cause one half at least of said sums to be ex- pended before the first day of July next. You are to ex- hibit this tax bill to the Selectmen on the first Monday of July and also at the expiration of your term of office, and at those times respectively to render an account of all moneys by you expended : — You will allow for work at the following rates — (insert the provisions of the vote of the town.) HIGHWAY TAX. No of I Poll I Tj , Polls. Tax. 1 ^^^^- Personal. Total. A. B.\ 1 1 : 55 1 9 : 70 5 :40 16 : 65 Given under our hands this day of 183 M. T.) L. R. [■ M. S.) of W. Forrn of Warrant to accompany the list when the Highway Surveyors are authorized by towns' to collect the Highway Taxes not worked out. W. ss. To A. B. a Highway Surveyor of the town of S. in the county of W , Greeting. In the name of the Commonwealth of Massachusetts ; you are required to collect of the several persons named in the list herewith committed to you, each one his respective pro- portion therein set down, of the sum of dollars, voted by the inhabitants of said town on the day of last, for repairing the highways, town ways and bridges in said town. You first having given reasonable notice to each person herein named of the sum he is assessed to highways and town ways, and also seven days' notice of the times and places you may appoint for providing materials and working on the highways and town ways within the limits of the district assigned to you by the assessors (or selectmen) for the present year. , You are to allow the several persons for work and labor APPENDIX. IX according to the vote of the town as follows to wit : (insert the provisions of the vote of the town) you are to cause one half of said sum at least to be expended as aforesaid on or before the first day of July next. And you are to exhibit this warrant, with your doing there- on, to the selectmen on the first Monday of July next, and also at the expiration of your term of office, and at those times respectively to render an account of all moneys by you expended on the highways and town ways. You are also to complete and make up an account of your collections of the whole sum on or before the day of . And if any person shall refuse or, &c (the conclusion is the same from this point as the warrant to collectors.) Given under our hands, this • — ' — day year A. B. " C. D. E. F. Notice to be posted by Assessors of discount on taxes. The assessors of the town of B. give notice that they have delivered to C. D. Collector of taxes, a correct list of the taxes, together with a warrant in due form of law for collect- ing the same, and that by a vote of the town, to all persons who shall voluntarily pay the collector at his office, a discount will be made on their taxes as follows : To such as pay within 30 days, per cent, within 60 days, per cent, within 120 days, per cent. J. S. ) Assessors of B , May — -, 18— X. Y. \ the town of Z. Q. ) B . Assignment of limits to Sighway Surveyors. To A. B. one of the Surveyors of Highways for the town of W. The limits of the district, the highways, town ways and bridges which are to be kept in repair by you for the present year, are as follows, to wit, (insert the hounds.) W , April , 18 . C." D: 1 Assessor_s of B. T. } APPENDIX. COLLECTORS. Form of Bond to be given by collector when he is also town treasurer. Know all men by these presents, that we, A. B. of W. in the county of W. and Commonwealth of Massachusetts as principal, and C. D., E. F. of said W. as sureties, are holden and firmly bound to said town of or its cer- tain attorney, in the sum of dollars, for the payment of which well and truly to be made, we bind ourselves and our heirs, executors and administrators firmly by these pres- ents. Sealed with our .seals and dated this — day of ■ in the year . The condition of this obligation* is such that whereas the said A. B. has been chosen Treasurer and Collector of Taxes for said town of W. for the current year, and has accepted those offices and been duly sworn to the discharge of their respective duties, now if the said A. B. shall as treasurer and collector as aforesaid, faithfully collect, account for, and pay over all the taxes which he shall be legally required to collect, and also with diligence and fidelity discharge all the other legal duties of the aforesaid offices, then this obligation shall be void, otherwise it shall remain in full force and virtue. A. B. (l. s.) Signed, sealed and delivered, CD. (l. s.) in presence of E. F. (l. s.j Advertisement of Lands to be sold for (he payment of Taxes. The proprietors of the following tracts of land in the town of S. in the county of W. are notified that the same are taxed in the tax list committed to the subscriber, the collector of taxes for said town of S. for the year eighteen hundred and as follows, John Doe — the dwelling-house occupied by him in the village of S. with about one acre of land — the store nearly opposite said house now occupied by II. and B. as a grocery store, with about an half acre of land. The amount of tax on the dwelling-house is six dollars and fifty cents, on the store four dollars anH twenty-five cents. *Eiohard Roe. And if no person shall appear to discharge said taxes on "The condition of the above bond may easily be altered to suit the case of collector when not treasurer. APPENDIX. XI or before the — day of next at — o'clock in the fore- noon (or afternoon) I shall proceed to sell at , {place of tale) by public auction, the following described portion of said real estate viz : being so much of said respectiye tracts as shall be sufficient to discharge said taxes and all necessary intervening charges. S- 184-. A. B. CoUector of S. CoUeclor's demand before advertising. Office of Collector of Taxes W , 185- Mr. I hereby demand of you the payment of dollars ioo that being the amouut of Tax assessed for the year 185- on the estate in this town, situated in Street, and by you. You are hereby notified that if said amount, together with the costs thereon, is not paid in within fourteen days from this date, the said estate will be sold at auction, pursuant to law. Collector of Taxes. DEED BT A COLLECTOR OF LAND SOLD FOR TAXES. COMMONWEALTH OF MASSACHUSETTS. To all persons to whom these Presents may come, I, Collector of taxes for the town of in the County and Commonwealth of Massachusetts, Send Greetikg : Whereas, The Assessors of Taxes of the town of have assessed A. B. of F . the sum of dollars and cents for Tax as owner of land in said town, in the list of assessments which they have committed to me to collect, and whereas, although I have demanded the said tax of the of said real estate, and have advertised the time and place of sale of the real estate whereon the said tax was assessed for the payment of said tax and the name of the owner of such real estate in the public newspapers printed in the City and County where said real estate lies, three weeks successively, the last publica- tion whereof was one week before the time appointed for the sale, and have also posted up a written notice of said time and place of sale and the name of the supposed owner of XII APPENDIX. the real estate, in three public and convenient places in said town of , to wit : and also on the premises hereinafter described, and prior to the day and hour of said sale caused a copy of such notice, attested by the affidavit of a disinterested person that he had so posted said notice, to be recorded in the Kegistry of Deeds for the County Therefore know ye, that I, the said Collector of Taxes as aforesaid, in consideration of dollars and cents to me paid for the discharging said tax and intervening charges by of in the County of and State of , the receipt whereof I do hereby acknowledge, do hereby give, grant, bargain, sell and convey unto the said the following described real estate, the same being the land taxed as aforesaid, to wit. The same having been struck 'off to said being the highest bidder therefor, at a sale by public auction, notified and held at on the day of in the year eighteen hundred and fifty To have and to hold the same, to , the said heirs and assigns, to their use and behoof forever ; subject to the right of redemption given by law to the owner thereof. In witness whereof, I, the said Collector as aforesaid, have hereunto set my hand and seal, this day^f in the year eighteen hundred and fifty Signed, sealed and delivered ) in presence of j ss. 185 Then the above named Collector of Taxes for the Town of acknowledged the, foregoing in- strument to be his free act and deed. Before me, Justice of the Peace. ) Collector of Taxes for J the town of Entered and recorded in Kegistry, Lib. Pol. APPENDIX. XIII Form of Account to be made where Golleclor sells a distress taken for the payment of Taxes. Account of the sale of a lot of Hay belonging to S. L. -■ of S. taken, distrained, and sold by me; for the payment of his taxes, in the bills committed to me to collect, for the year— . 26 cwt. Hay, sold to C. M. for 19,80 S. L.'s county and town Tax, Poll, 149 Real 6 40 Personal 3 30 $11 19 Charges, Trarel, 5 miles, ... 20 Commissions, at 4 per ct. 44 Carting the hay, ... 1 76 Weighing 25 Loading the hay, ... 50 Advertising and selling . 50 -3 69 16 88 Surplus money returned to S. L. $3 92 S 18—.' B. F. Collector of S. Certificate to be made upon the copy of a warrant to be given to the Keeper of a Prison, when a person^ is committed for Taxes. P , 18- I hereby certify, that is the sum -which A. B. now committed to prison, is to pay, as his proportion of the assessment within mentioned, and that upon his having neclected payment for fourteen days, and for want of goods whereof to make distress, I have taken his body. The cost of taking and committing is a. W. Collector. Form of Return to he furnished hy the Collector to the Se- lectmen to enable them to make a list of Voters. The following is an accurate list of all persons from whom I have received a state or ccmnty tax since the date of my last return. A.B. C. D. &c. E. F. Collector. XIV APPENDIX. CONSTABLES. The manner of notifying Town Meetings or Parish Meet' ings must he such as the town or Parish may order. The ■prober mode is to post up attested copies of the Warrant, and to preserve the original, to be returned to the Town Meetings, or Parish Meeting. Form of return on Warrant. ' W , ss. March — , 18 — . I have served the within warrant by posting up attested copies of the same at each of the public meeting-houses in said town, fourteen days before the time of holding this meeting. M. B. Constable of W. When any mode of notifying the meeting is prescribed by a town or parish, a compliance with that mode should be stated in the return. Notification to a person drawn as a Juryman. E. ss. To A. B. of B. You are hereby notified that on the day of instant, you was drawn to serve as a Juror, at the Court of Common Pleas, to-be holden at S. within and for said county, on the day of , and you are notified to attend said Court en the day of its sitting, at o'clock.* M. B. Constable of A. Return on a venire for the appointment of Jurors. Worcester, as. I notified the Selectmen and Town Clerk of said Town of to meet as within directed, and draw a Traverse Juror, to serve at the Court within named f and on the day of A. D. 185 , was drawn as such Juror ; and on the day of A. D. 185 , I summoned him to appear and attend the said Court accordingly. > Constable of I said Town. Fees, Service, $0 25 Travel, miles. "Ingert the day and honr stated in the venire^ APPENDIX. XV Constables will be particular to insert the date, in the blank returns, which should be the date of the drawing of the Jurors ; and the time when they were notified is of no consequence in the above return, if it appears to have been done four days previous to the sitting of their Court. The other duties of Constables, the forms of the returns, &c. being the same both in civil and criminal actions with those of Sheriffs, it has not been thought advisable to incum- ber this work with them. EiVGINBMEN. Appointment. The Selectmen of the town of B. hereby appoint A. B. C. D. E. P. «fcc. to be enginemen within said town, during the pleasure of the Selectmen, and they are to be attached to Engine No. 3. Given under our bands this day of 18 ) Selectmen \ofB Certificate to the Militia Officers. To Capt. The Selectmen of the town of B. hereby certify that the following persons who reside within your company bounds, have been duly appointed by us this day as Enginemen, within said town, viz. A. B. C, &e. ) Selectmen B. 18—. J of B. FENCE VIEWERS. Request of the owner of a lot of land to the Fence View- ers, to survey the fence between his land and an adjoining close. To N. W. and J. P. two Fence Viewers of the town of S. The fence between ray land and that of R. H. in said S. is insufficient : this is to request you to survey the same, and to direct him to repair or rebuild it. I. G. S. 18—. XTI APPENDIX. Notice to the adverse party. To K. II. of S. I. G. of said S. has complained to us, two of the Fence Viewers of said town, duly chosen and sworn, that the fence between his lot and yours adjoining, in S, is insufficient, and has requested us to survey said fence, that you may be directed, to repair the same. You are hereby notified that we shall proceed to the survey to-morrow at nine o'clock, A. M. S. 18—. N. W. ) Fence J. P. ) Viewers. Award of the Fence Viewers. To K. H. of 8. Having surveyed the fence between your enclosure and 4bat of I. Gr. in said S. which of right you ought to maintain, and having found said fence out of repair and insufficient — we hereby direct you to repair or rebuild said fence in days from the date hereof. S. , 18 — . N. W. ) Fence Viewers of J. P. j the Town of S. Appraisal of the said fence, huilt hy the complainant, when the occupant of the adjoining lot has neglected to comply with the directions of the Fence Viewers. The undersigned, two Fence Viewers of the town of S., •duly chosen and sworn, having heretofore surveyed a cer- tain fence, between the inolosure of I. Gr. and E.. H.- in said 3. and after having adjudged the same to be insufficient and illegal, did order and direct that the said K. H. should re- pair or rebuild the same within days from the date of our order, and the said ' R. H. not having com- plied with said order, the said I. G at his own proper costs and charge has repaired and rebuilt the same — and we now appraise the said fence at the sum of Dollars. — And we certify that our fees for attending that service are as follows : — For viewing said fence. For appraising the same. Paid us by the said I. G. N. W, J p > Fence Viewers^ S . , 18 APPENDIX. Notice of Fence Viewers on application of a party when the right of occupants in Partition Fence is in dispute. To . M. N. has represented to us tho subscribers, two of the Fence Viewers of the town of P. duly chosen and sworn, that a controversy has arisen between him and you, respect- your geveral rights in the partition fence between your land and his, {or the land occupied by him and you, at or, from , to , as the case may be,) and has made application to us on that account ; we do therefore hereby no- tify you, that we shall be at on the day of , at o'clock in the noon, to assign to each party his share of said fence, when and where you will attend if you think fit. Dated, 18— J. B. J. D. Award of Fence Viewers in last case. Whereas a controversy has arisen between A. B. of and C. D. of , about their respective rights in a par- tition fence in the line between their lands (or farms,} at , (or from to ) we the subscribers. Pence Viewers of the town of F. duly chosen and sworn, having, on the application of the said A. B (and after having given due notice to the said CD.) viewed the premises and duly considered the matter in dispute, have assigned, and do here- by assign to each of the said parties his share of said fence, as follows, viz. The said A. B. shall build and keep in repair, a good and sufficient fence from , or, from to And the said C. D. shall build and keep in repair a like fence on the other part of said line, viz, from to . And each par- ty is to erect (or repair,) his part of said fence within days from the date hereof. Given under our hands at said F. this day of 18—. J. B. J.D. XVIII APPENDIX. Notice of Fence Viewers on application of a party whose land is divided from another'' s hy a brook, river, pond, or creelc. To of M. N. of , has represented to us the subscribers, Fence Viewers of the town of P. that you refuse to join with him, (or, that you and he cannot agree, as the case may be) in making . a partition fence between your land and his, (or, between the lands occupied by him and you, the same being bounded or divided by a pond, river, brook, or creek, as the case may be) and has therefore made application to us to view the same, and determine thereupon ; we therefore hereby give you notice that we shall attend that service on the day of , at o'clock, when and where you will be present, if you see fit. Dated the day of 18 . J. B. J. D. Determination of Fence Viewers as to a Partition Fence on the lands of different persons, bounded or divided by ■a river, brook^pond, or creek. It has been represented to us, the subscribers, two of the Fence Viewers of the town of F. duly chosen and sworn, by A. B. of , whose land is bounded or divided from the land of C. D. (or, occupied by C. D.) that the said C. D. hath refused to join with him , {or, that they could not agree in making a partition fence, as the case may be,) and the said A. B. having applied to us to view the same and determine thereupon, we have, after giving due no- tice to the said CD. attended that service, and do determine, that the said pond, river, brook, or creek, does not answer the purpose of a sufficient fence, {or as the case m.ay be) and that it is impracticable to fence at the boundary line, we therefore determine that said fence shall be set up as fol- lows, viz. And that the said A. B. shall build and maintain , and the said C. D. shall build and /maintain . "* Given under our hands, this day of 18 . J. B. > y' Tv' V Fence Viewers. APPRNDIX, XIX Application to Fence Viewers, hy a party owning iand- which had been improved in common with another occupant, for a division of the same. To J. B. and J. D. two of the fence viewers of the town of P. C. D. and myself, having heretofore improved our lands in common, I am desirous to have a partition fence between my lot at and that of 0. D. (or now occupied by C. D.) and to improve my part in severalty, and he has re- fused,, (or neglected) to divide the line where the fence ought to be built : I do therefore request that you would divide the same, and assign to each party his share thereof, according to law. A. B. Dated ,18 . Notice of Fence Viewers to a party, on the application of another with whom he had improved in common, and is desirous to improve in severalty. To C. D. of A. B. of F. has represented to us, the subscribers. Fence Viewers of said town of F. that he is desirous of having a partition fence between his land at , and yours, which you have hitherto improved in common, and to improve his part in severalty, and that you refuse (or neglect) to divide the line where such fence ought to be built, and hath there- fore requested us to divide and assign the same. This is therefore to give you notice that we shall af^end that service at , on the ' day of , at of the clock in the noon, when and where you may be present, if you see fit. J. B. Dated the day of 18 J. D. Fence Viewer's assignment of a Division Fence between two persons who had before im^oved their lands in common. Whereas A. B. of F. hath represented to us, the sub- scribers, two of the Fence Viewers of said town, duly cho- sen and sworn, that he is desirous of improving in severalty, a certain parcel of land, [here describe the same] which he XX APPENDIX. bath hitherto improved in commoa with , (a certain piece, &B. belonging to CD.) and to have a partition fence between them, and that the said 0. D.) hath refused [or neg- lected] to divide the line where the fence ought to be built, and hath therefore requested us to divide the same, and to assign to each party his share thereof, according to law. We therefore having given due notice to the said C. D. have divided and assigned the said line, as follows,viz. The said A. B. shall build and maintain a fence on the line running from to And the said C. D. shall build and maintain a fence on the other part of said line, viz. from to . Atid the parties are to erect said fence in days from the date here- of. Given under our hands this day of 18 . J. B. J.D. Fence Viewers' appraisement of the valine of a Partition Fence. We the subscribers. Fence Viewers of the town of F. du- ly chosen and sworn, having been requested by A. B. to appraise his part of a partition fence, between his lands at , which have been under improvement, but which he now chooses to lay in common, and lands of have viewed the same, and do determine-the value of the same to be J. B. J. D. Dated day of 18 . Agreement between two parties owing contiguous lots to di- vide the fence between them without the intervention of Fence Viewers. This memorandum of an agreement made this day of in the year by and between T. H. B. of S. on the one part, and D. P. M. of S. on the other part, Wii- NBSSJBTH, That whereas there is a division fence needed on the line that divides the B. pasture of the said T. H. B. and N. lot of the said D. F. M. in said S. it is now agreed that the northerly half of said fence shall be ercttsd and sup- ported by said T. H. B. and the southerly half thereof by APPENDIX. XXI the said D. F. M. And this agreement being recorded in the office of the Town Clerk of the said town of S. shall be perpetually binding upon the several owners of the said lots, their heirs and assigns forever. Witness our hands and seals, the day and year aforesaid Sliest, T. 11. B. (l. s.) ^- -P- • D. F. M. (L. s.) - FIELD DRIVERS AND IMPOUNDING. Notice to he given when a beast" impounded is taken up doing damage, and the owner is known. S , May 18 . To Mr. W. of F. I have this day taken up and impounded, in the town pound under the care of R. II. pound keeper, one white horse belonging to you, found doing damage in the inclosu're of N. VV and for that cause said horse is impounded. D. N. Field Driver of the town of S. When taken up for running at large. S , May 18 . To Mr. W. of S. I have this day taken up and impounded, in the town pound under the care of R. H. pound keeper, one bay horse, belonging to you, found running at large, without a keeper, upon a public highway, within said town ; and for that cause said horse is impounded. D. N. Field Driver of S. Memorandum to be left with Pound Keeper. To R. H. keeper of the town pound, in the town of S. I have this day taken up and impounded, in the tcwn pound under your care, one whits horse, the property of W. F. of said 8. found doing damage in the enclosure of N. W. The damage demanded is and charges of feeding. D. N. Field Driver. S , 18 . If found at large, then say " found running at large without a keeper, upon the public highway f in said town." XXII APPENDIX. Notice (in case the owner is unknown) to be posted up in some public place within the town, and such adjoin- ing towns as are within four miles. Taken up this day, (doing damage in the enclosure of J. R.) and impounded in the town pound in P. one red Cow, with short horns, the owner of which is unknown. A. 15. Meld Driver. OVERSEERS OP THE POOR. Notice from the town of T. where a person is in Distress, to the town of S. where he is lawfully settled. To the Overseers of the Poor of the town of S. Gentlemen — S. R. and his wife, whose lawful settlement is in S. are now in this town, sick and in neeed of assistance. We have furnished them relief to the amount of dollars, which you are requested to pay, and to cause the removal of said paupers, as they are now the proper charge of your town. Yours, &e. T — , 18. ^ Overseers of the yPoor of the town Sof.T. A denial of Settlement, in answer to the above. To Overseers of the poor of the town of S. Gentlemen — Your letter of the — instant respecting the support of S. R. and wife, was duly received. Upon in- quiry, we are satisfied that this town is not the place of law- ful settlement of the said S. R. and wife. We cannot there- fore cause the removal, nor contribute towards their support. Yours with respect, S — 18 — I Overseer of the > Poor of the town Sof s. Complaint to a Justice of the Peace, and application for the removal of a Poor Person not belonging to the Com- monwealth, to another State, or to a place beyond the sea. To R B Justice of the Peace within and for the coun- ty of W. Complain B. T.,P. W. and S. M. Overseers of the Poor of the town of , that they have been obliged to pro- APPENDIX. XXtll Tide for the relief and support of one , a poor person aow residing in said town, who has no lawfiil settlement within this Commonwealth, but belongs to , and that the said still stand in need of relief, and will be of further expense to said town. They therefore pray that a warrant may be issued for removing the said to the said , according to the provisions of the statutes. Dated, &c. B. T. P. W. S. M. Complaint against the kindred of a paupe'-, to compel them to contribute towards his maintenance. To the honorable the Justices of the C. C. Pleas, to be held &c The inhabitants of the town of R. in the county of W. complain and inform the court, that A. B. of said R. labor er, is a poor and indigent person, and for a long time here- tofore has been wholly supported by the said town of R. at their proper charge, the said town of R. being the place of lawful settlement of said A. B.; and that they have expended, for the support and maintenance of the said A. B. within six months last past, the sum of , as by the bill of particulars hereto annexed, appears. And your Complainants would fur- ther inform this Court that C. B. and O. B. of S; in said county, yeoman, are kindred of said pauper, in the degree of children by consanguinity, being within the state, and of suf- ficient ability to Support said A. B. or to contribute to his maintenance. Wherefore your Complainants pray that this Court would assess and apportion the aforesaid sum of , expended by the said inhabitants of R. for the support of said A. B. to the time of exhibiting this complaint, upon the said C. B. and 0. B. in such proportions as the court may adjudge rea- sonable, according to their several ability — together with the costs of this complaint. And also that said court would assess and apportion up- on the aforesaid C. B. and 0. B. such further reasonable sums as may be expended for the support and maintenance of the said A. B. from the time aforesaid to the time of making said assessment. And also that this court would further assess and appor- XXIV APPENDIX. tion upon tBe said 0. B. and 0. B. such weekly sum as they shall judge sufficient for the future support of said pauper, to be paid quarterly to the inhabitants of the town of E.. afore- said, together with costs. Dated at E. aforesaid, this day of , in the year of our Lord The inhabitants of the town of R. by L. M. ^ Overseers of N. 0. Uhe poor of P. Q. } said town. Form of an Indenture for Overseers of the Poor tobind out the child of a poon- person. This indenture, made on the day of , by and between A. B. and C. Overseers of the Poor of the town of W. in the county of M. on the one part, and D. of said W. printer on the other part, Witnessetu. That the said overseers of the poor have bound and do hereby bind E. a minor son of F. a poor person, residing in said town, lawfully- settled therein, and having become actu- ally chargeable thereto, unto the said D. as an apprentice, to learn the art, trade, or calling of a printer, [or as servant, to be employed in any lawful work or labor,] and with him the said D. to serve from the day of the date hereof until the day of , when the said minor will be of the age of twenty-one years ; during all which time the said apprentice [or servant] his said master shall faithfully serve. And the said D. covenants, on his behalf, to teach and instruct, or cause the said apprentice [or servant] to be faith- fully taught or instructed in the aforesaid trade or calling, and during all said term the said D. shall provide for said ap- prentice [or servant] suitable boarding, lodging, clothing, nursing, attendance, and other necessaries, for his comfortable support in sickness and health. And the said D. shall also cause said minor to be taught to read, write and cypher {insert such other provisions for the henefU of the minor as thought reasonable ly overseers.) In witness whereof, the parties have hereunto set their hands and seals this day of in the year Signed, sealed and delivered, A. (l. s.) 1 p. in presence of us, B. (i. s.) i E. F. -. . . V , I. G. B. (1. s.) i C. (L. s.) f D. (x..s.)J verseers of the Poor, At-PKNDIi. XXT Form of a certificate to accompany an account against the Commonwealth, for the support of a State Pauper. Commonwealth of Massachusetts to the town of A. Dr. To the amount paid for the support and maintenance of P. Q. a State Pauper, as by the bill of particulars an- nexed, $34,00 And the Overseers of the poor of the said town of A. cer- tify that from the best information they can obtain, the said P. Q. was born in the proyince of Lower Canada, in the year 1755, that he came into this Commonwealth in the year 1777, that he resided at R. in the county of W. where he bought a small dwelling-house, on the 1st of April 1780, which he sold, January 10, 1786, when he left E. and resided in E. in the county of B. for seven years, without any estate of free- hold. And that the said P. Q. has never gained a settle- ment in any other town within this Commonwealth ; and that he has no kindred within the Commonwealth obliged by law to support him. And we further certify, that no part of this account is for the support of any male person over twelve years of age, of competent health to labor. Dated at A , this day of in the year 18 . G. H. ) Overseers of the I. J. >- Poor of the town L. M. ) of A. SELECTMEN. Form, of posting up the list of Voters. List of persons in the town of B. qualified to vote in elec- tions, for State, county and town officers, and for Kepresenta- tiyes to Congress, as made out by the Selectmen, the day of 18 . A.B. CD. The Selectmen give notice that they shall be in session for the purpose of correcting and revising the above list, at on Saturday, the day of next, from two o'clock to four o'clock P. M. And also for the space of one hour next preceding any town-meeting held for any of the elec- tions aforesaid, throughout the year. ) Selectmen of' S B . B . 18 . XXTI APPENDIX. Warrant for calling the annual Town Meeting. W. ss. To either of the constables of the town of W. in the county of W. Greeting. In the name of the Commonwealth of Massachusetts, yon are directed to notify the inhabitants of the town of W. qual- ified to vote in elections and in town afl^irs, to meet at the Town Hall in said W. on the day of next, at o'clock in the forenoon, then and there to act on the fol- lowing^ articles : — 1 . To choose a moderator te preside in said meeting. 2. To choose all necessary town officers for the year en- suing. 3. To hear the annual report of the selectmen, and act thereon. 4. To raise such sums of money as may be necessary to de- fray town charges for the ensuing year, and make appropria- tions of the same. 5. To determine the manner of repairing the highways, townways, and bridges, the year ensuing. 6. To bring in their votes for a County Treasurer. 7. To And you are directed to serve this warrant, by posting up attested copies thereof, at each of the public meeting-houses in the said town, fourteen days at least before the time for holding said meeting. Hereof fail not, and make due return of this warrant, with your doing? thereon, to the Town Clerk, at the time and place of meeting as aforesaid. Given under our hands, this day of , in the year one thousand eight hundred and ~ " Selectmen of W— A. B. ) C. D. ^ E. F.) Form of warrant for calling Town Meeting for voting for Governor, Sfc. To either of ike Constables, Sfe. In the name of the Commonwealth of Massachuetts, you are required to notify and warn the inhabitants of the town of W. qualified to vote in elections, to meet at the Town Hall, in W. on Tuesday, the day of November next, it being the Tuesday after the first Monday of said month, at of APPENDIX. XXTII the clock in noon, to bring in their votes to the Selectmen for a Governor and Lieutenant Governor of the Common- wealth, and for Senators, on one ballot, for the district of W. for the year ensuing. And you are directed to serve this warrant, by posting up attested copies thereof, at each of the public meeting-houses in said town, fourteen days at least before the time for hold- ing said meeting. Hereof fail not, and make due return of this warrant, with your doings thereon, to ourselves, i^t the time and place of meeting as aforesaid Given under our hands this day of , in the year one thousand eight hundred and W. E. ) Selectmen J. W. L. } of 0. C. ) W. If for the choice of a Representative to the General Court. 1. To determine the number of Representatives said town will cboose for the present year. 2. To cboose one or more Representatives to represent them in the General Court to be held at Boston, on the first Wednesday of Jatiuary-next. If for the choice of a Representative to Congress. To give in their votes for a Representative in the Congress of the United States, for the district. Return of votes for Governor, Sfc. At a legal meeting of the inhabitants of the town of in the county of and Commonwealth of Massachusetts, qualified by the constitution to vote for Governor and Lieu- tenant Governor, holden on the day of November, being the Tuesday after the first Monday of said month, in the year one thousand eight hundred and for the purpose of giving in their votes for Governor and Lieutenant-Governor of said Commonwealth, the votes given in were sorted, count- ed, and recorded; and a public declaration thereof made, a? XXVIII APPENDIX. is directed by the constitution; and were for the following persons. For Governor, E. E, one hundred M. M. one hundred Attest A. B ') C.,D, >■ Selectmen. E. P.) L. M., Town Clerk. The same form for return of votes for Lieutenant Governor, hut the returns should he kept separate. Return of votes for Senators. ' At a legal meeting of the inhabitants of the town of in the county of and Commonwealth of Massachusetts, qualified by the Constitution to vote for Senators, holden on the day of November, it being the Tuesday after the first Monday of said month, in the year one thousand eight hundred and for the purpose of giving in their votes for Senators for the district of the votes given in, were sorted, counted, recorded, and a public declaration thereof made, as by the Constitution is directed; and. were for the following persons ; — C. A. Seventy-five W. F. Seventy-five C. R. Seventy-four Attest A. B. ") C. D. >• Selectmen. B. F.) L. M., Town Clerk. For Oertificate of the Election of Representatives to the General Court, see page 101. Form for the return of Votes for Representatives to Congress. At a legal meeting of the inhabitants of the town of in the county of and Commonwealth of Massachusetts, <5[ualified as required by the Constitution to vote for Represen- tatives in the General Court, holden on th« day of November, being the Tuesday after the first Monday of said month, in the year one thousand eight hundred and for the purpose of giving in their votes for a Representative of the said Commonwealth in the Congress of the United APPENDIX. XXIX States, for the district ; votes for the following persons were given in, sorted, counted, recorded, and declaration thereof made, as by law directed, to wit : — J?or L. L. one hundred. For M. L. F. one hundred. A. B. ^ C D. J" Selectmen, E. P.) Attest L. M., Town Clerk. Return of Votes for County Commissioners. At a legal meeting of the inhabitants of the town of - in the county of and (Jommon wealth of Massachusetts, qualified to vote in elections, holden on the of November, in the year one- thousand eight hundred and , being the Tuesday after the first Monday of said month, for the purpose of voting for County Commissioner for said county, the votes given in were sorted, counted, recorded, and public declar- ation thereof made, and were for Commissioner, I. W. L. one hundred. Fo ir Special Commissioners, B. . D. one "hundred. E, . S. A. C. one B. ». F. hundred. >■ Selectmen. At test L. M. Town Clerk. Notice of Selectmen to perambulate Division lAnes between Towns. The Selectmen of th« town of F. to the Selectmen of the town of P. Gentlemen — The subscribers. Selectmen (or two of the Selectmen) of the town of F. being the most ancient of the said towns, hereby give notice, that we shall meet at , on the day of , at of the clock in the noon, to perambulate and run the lines between the said towns, and renew the marks, according to the law of the Commonwealth : when and where, and for which ser- vice, you are hereby requested to attend. Dated at said F. the day of in the year 18 . J. N. ") J. J. > Selectmen of ^.'^.) F. XXX APPENDEf. Appointment of one to perambulate Lines ietioeen Towns. To A. B. of We the subscribers, Selectmen of the town of F. by virtue of the law of the Commonwealth, do hereby nominate and appoint you to perambulate and run the dividing lines be- tween said town and the town of F. and renew the marks ; and you are to make returns of your proceedings into the Clerk's office of said town, as soon as you have completed this service. Given under our hands thig day of 18 . Selectmen of F. Form of a license for an Auctioneer, The Selectmen of the town of S. at a meeting this day held for that purpose, hereby license E. K. as an Auction- eer in said town for the year ensuing — he having given the .bonds required by the laws of the Commonwealth. Dated at B. this day of in the year 18 , A. B.) C. D. > Selectmen. E. F. ) Form of an approval on the Bond of an Auctioneer. The selectmen of the town of B. certify that they have .examined the within bond — that the sureties therein named are well known to them as persons of sufficient ability to re- .spond to the penalty thereof; and they hereby approve the- .same. B . ) > Selectmen of Form of Annual return to he made-hy the Selectmen. Report of the Selectmen, of the expenses of the town of sS , for -the year ending on the day of , 18 . Paid for abatement of taxes, S31 00 Assessors' wages, 78 70 Repairs of public buildings, 47 00 jinoculating for kine pox, 25 00 APPENDIX. XXXI Support of Schools, 800 00 Support of Poor, 39O 00 Recording births and deaths, 4 50 Perambulating town lines, 9 00 Collectors' Commissions, 37 00 Stationery, 4 50 Military equipments, 45 OO 1471 70 Paid towards a farm for support of poor, 1000 00 «2471 70 The Selectmen farther report that they have settled with the treasurer, and his account stands as follows : Dr. To balance on hand last year, 1 578 09 To amount of town grant, 3,200 00 To overlayings on all the taxes, 94 90 To highway deficiencies, 19 48 3,314 38 84,892 47 Gr. By amount of orders paid the Selectmen, 3,401 91 By do. paid the overseers of the Poor, ' 600 68 4,002 59 Balance in the Treasury, 889 88 Town orders outstanding, 650 00 Net balance in favor of the town, $239 88 All which is submitted. S . . 18 } Selectmen of Form of laying out a town ■way by Selectmen. We the subscribers, Selectmen of the town of B. have laid out for luc use of the said town a town way as follows; Beginning at a stake and stones on the northerly side of the road leading from J. P.'s to C. at land of D ; then through said D.'s land north twenty-five degrees east, one hundred rods, to land of E.: then continuing the same XXXII APPENDIX. course through laud of said E. forty rods, uutil it intersects the road aforesaid, to be three rods wide, and to lie on the easterly side of said course. And we agreed with the own- ers of the land over which said way passes, for their dam- ages, as follows ;— to the said D. forty dollars, to be paid by the said town of B. before said road is opened : and the said E. released all the damages for laying said way through his land. And we allowed the several owuers of the land aforesaid two months to take oflF the wood standing and growing thereon. Which said road is hereby reported to the town for their acceptance ; and when accepted and re- corded, is forever after to be known as a public town way. Dated at B. this . day of in the year 18 . I Selectmen of I B. SCHOOLS. Form of an application to the Selectmen for a School Dis- trict meeting, hy three or more residents paying taxes. To the Selectmen of the town of W. The subscribers, residents, paying taxes in district No. 8, within said town, hereby make application to you to is- sue your warrant directed to one of the subscribers, requir- ing him to warn the qualified voters of said School District to meet at such convenient time and place as you may ap- point, to act on the articles following : 1 . To choose a Moderator to preside in said meeting. 2. To choose a Clerk for said district. 3. To choose a prudential Committee-man for said district, pursuant to a vote of the town. 4. To see if the district will repair their school-bouse, and purchase necessary utensils for the same. 5. To vote such sums of money as may be thought suf- ficient for the foregoing purposes. 6. To prescribe the mode of warning future meetings of said district, and in what manner and by whom such meetings shall be called. W. B. W. 18 . S. B.- J. G. APPENDIX. XXxm Warrant on the foregoing Application. (l. s.) To S. B. one of the residents paying taxes (l. s.) making the above application. (l. b.) In the name of the Commonwealth of Massa- chusetts you arc required to notify and warn the inhabitants of School District No. 8, in the town of W. qualified to vote in town affairs, to meet at their schooLhouse in said town on . the day of inst. at o'clock P. M., then and there to act on the articles mentioned in the annexed application. And you are hereby directed to serve this warrant by notifying personally, every inhabitant of said District qual- ified to vote in town affairs, or by leaving at his place of abode, a written or printed notification, expressing the time, place and purposes of said meeting, seven days at least be- fore the time appointed for the same. Hereof fail not, and make return of this warrant with your doings thereon, to the said meeting, at the above time and place. And the Clerk who shall then and there be chosen and sworn, is directed to make a further return of the same to us at our Office. Given under our hands and seals this day of in the year -p' -p, ' I Selectmen of P. W. P. j ^■ Pursuant to the foregoing warrant, I have notified and warned the inhabitants of said school district to meet at the said time and place, and for the purposes mentioned in said warrant, by leaving at the place of abode of each of said inhabitants, a written notifixsation expressing the time, place, and purposes of said meeting, seven days before the time appointed for the same. S. B. Application to the Selectmen, when a majority of the dis- trict refuse to appropriate money for any of the pur- poses required.of a school district; to he made hy at least five residents paying taxes. To the Selectmen of the town of H. The school house in school district No. 8, in said town, requiring certain repairs, and being destitute of necessary utensils, which said repairs and utensils would in our opin- XXXIT APPENDIX. ion amount to the sum of one hundred dollars : an esti- mate of which has been submitted to said district, at a le- gal meeting of the inhabitants thereof, with a request that they would vote a gum necessary for said purpose, when and where a motion to that effect, was negatived by a majority of said district : Wherefore the subscribers, being residents in said district paying taxes, request that you would in- sert in the warrant for calling the next town meeting, an article requiring the opinion of the town, upon the expe- diency of making the appropriation of said purposes, and if in the opinion of the town, the same is expedient, we request that a sufficient sum be raised for those purposes, upon the polls and estates in said district. H , 18 . A. B. C. D. E. Application to the Selectmen, in ease the District do not agree where to place their school house. To the Selectmen of the town of W. The subscribers have been appointed by School District No. 8 in said town, to oversee the building of a new school house for said district, and as said district have not agreed where to set said house, application is hereby made to the Selectmen to determine the spot. W ,18 . >• Building Committee. The above application may he made hy Jive legal voters. Forms of certificate for Instructors of Schools. We certify that L. W. is qualified to instruct the highest public school required by law in this town, and he is here- by engaged to keep such school for the benefit of all the inhabitants of said town. C. A.) W , 18 . A. B. >• School Committee C. D. ) of the town of W. We certify that H. Gr. is qualified according to law, to in- struct the town school in District No. 2, for the ensuing sea- son. By order of the School Committee of W. W , 18 . C. A. Chiiirman. APPENDIX. XXXT We certify that Miss A. B. is qualified according to law, to instruct the town school in district No. 5, the ensuing sea- son. By order of the School Committee of W. C. C. B., SecretaiT. W , April, 18 . STJKVEYORS OF HIGHWAYS. Notification to a Person of his Highway Tax. To A. B. : — The amount of your taxes in the highway tax for the present year, committed to me by the Assessors of said town, is as follows : — Poll, 55 Eeal, 9 70 Personal, 3 40 Income, 2 $15 65. And you are hereby notified that I shall repair the road near the house of , on , at o'clock, when and where you may have opportunity to work out your highway tax, either in person or by substitute, with one pair of oxen or horses, a cart, a plow and other suitable tools. B , 18 . E. B., Surveyor. TOWN CLERK. Warrant of Town Clerk, to notify Town officers to take the oath hy law required. To J. B. one of the Constables of the town of P. [l.s.] " Greeting. The following is a list of those persons who were this day chosen into office, at a meeting of the inhabitants of said town, and of whom an oath is by law required, viz. You are hereby required, in the name of the Common- wealth of Massachusetts, within three days from the date hereof, to summon each of the said persons to appear be- fore me, clerk of said town, within seven days from the time yon shall give such notice, to take the oath by law prescribed to the office unto which they are respectively chosen. Hereof fail not, and make return of this warrant with your doings thereon, within seven days from the date hereof. XXXVl AtPENtllX. Given under my hand and seal, this day of in tte year 18 . A. B. Town Clerlj:. Blank forms of returns of marriages S^c, are to he fur- nished to towns hy the Secretary of the Gommonwealthi CertiflcSate of Marriage Between of aged years, by occupation a He was bom in and was the son of This will be his marriage And of aged years. She was born in and was the daughter of This will be her marriage. The Intentions of Marriage by the parties above-namecl were duly etitered by me in the records of the of ac- cording to law. Dated at this day of A. D. 185 Town Glerh. The parties above-named were joined in marriage at by me, this day of A. D. 186 'Attest. Raurn of a Birth. 1 hereby certify, as I am informed, that on the day of A. D. 185 , a child was born in at No. Street. The said child was the of and of his wife. The father is a by occupation, and he was born in The mother was born in The name given to the child is Informant. Dated at the day of A. D. 185 Return of a Death. I hereby certify, as T am informed, that on the day of A. D. 18 died, aged years, months, days, in at No. Street. Said person was a and, by occupation, a was born in and was the of The disease, or cause of death, was interred, or to' be interred,- in Informant. Dated, at the day of A. D. 18 Certificate of the Votes for County Treasurer. At a legal meeting of the inhabitants of the town of P . APPENDIX. XXXTir qualified by the constitution to vote for Representatives holden at said P. on the day of , in the year 18 , the said inhabitants gave in their votes for a county -treasurer , and the same being counted and sorted in the meeting by the moderator thereof, and town clerk, it appeared that there were — for J. M. votes — for B. L. votes. A true copy of record Attest, J. F., Clerk. Certificate of the Votes for Register of Deeds. At a legal meeting of the inhabitants of the town of P., qualified by the constitution to vote for Bepresentatives, hold- en at said P. on the day of , in the year 18 , the said inhabitants brought in their votes for Eegister of Deeds, and the same being counted and sorted by , who were cho- sen to count and sort the votes for that meeting, it appeared that the names of the persons voted for and the number of votes, were as follows, viz. for I. I. votes— E. F. — S. W. A true copy of record. Atte'st, J. F., Town Clerk. For returns of votes for State Officers and Gounty Gom- missioners, See forms for Selectmen. Notice to the Clerk, of Money or Chads found of the value of one dollar and upwards. On the day of , inst. I found [here insert a de- scription of the articles, and the place where founds the owner whereof is to me unknown. D. 18 . A. B. Notification to he posted. Found in the public highway in L. on the day of ^ inst. [here insert the articles, Sfc.'\ the owner whereof is to me unknown. ^- •^• D. 18 . Warrant of a Town Cleric for ascertaining the damages done hy Creatures taken up and impounded, {to he is^ sued at the request of the owners of such creatures. } To A. B. and C. D. of P. Gkbeting. You are hereby appointed and empowered faithfully and XXXVIU APPENDIX. impartially to estimate upon oatb, the damage done to E. F, by [here describe the creatures] which for that cause have been taken up by Gr. H. and impounded in the town pound, [or at whatever place they may he impounded.'] Given under my hand, this day of A. D. 18 . A. B., Totm Clerh. Warrant of a Town Olerh, for estimating the damages done hy creatures taken up and impounded, {to he is- sued on the application of the person who im- pounded them.) To A. B. and C. D. of P. Greeting. You are hereby appointed and empowered faithfully and impartially to estimate upon oath, the damage done to K. F. by \here describe the creatures] which for that cause have been taken up and impounded by G. H. \in such pound or in such place] also the costs and expenses of impounding, with a reasonable compensation for your own services. Given under my hand this day of 18 . A. B„ Town Clerk Warrant of a Town Olerk, appointing persons to appraise Lost Goods or Stray Beasts. To A. B, and C. D. both of P. in the county of C. (i,. s.) Greeting. You are hereby appointed and empowered to appraise upon oath, at the true value thereof in money, according to your best judgment * * * * found \and if it be a stray beast, add, and taken up] by E. F. of , who has entered, posted, and cried the same, as the law directs. And you are to make return of this warrant, and your do- ings thereon, into the town clerk's office of said P. within seven days from the date hereof. Given under my hand and seal the day of 18 . J. F., Town Clerk of P. I N^ID E X ABATEMENT OF TAXES. assessors may allow reasonable abatement, 68. •costs before abatements to be paid by person applying for, 58. if assessors refuseto abate, party may apply to county com- missioners, 08. complaint to commissioners the only remedy for person liable to be taxed -who is overrated, 58, otherwise if not a resident, 58. decision of commissioners final, 08. abatement not allowed unless a list has been brought in, Biris- scribed and sworn to, 69. penalty for taking false oath, 69. oral reference to a former list is sufficient, 59. to be applied for in six months, 59. if tax has been paid, to be allowed out of the town treasury, 59. party entitled to certificate of his abatement, 59. parishes may allow abatement, 192. assessors may abate school taxes, 279. ASSESSMENT OF TAXES.. persons subject to poll tax, 32, 33. property subject to taxation, 33. income how taxed, 34. poll and estate exempted from taxation, Si, 36, 36, 37. poll tax where assessed, 38. poll tax of minors where assessed, 39. railroad stock held by bank as collateral security howtaxed, 34. personal property of minors where assessed, 39. poll tax of persons under guardianship, 40. real estate where and to whom taxed, 43. personal estate where and to whom taxed, 40. personal estate taxable in places where owner is not an inhab- itant, 40, 41, 42. taxable person in any town on the first day of May denying his residence therein, and refusing to state to the assessors where he considers it to be, how taxed, 40. taxes assessed upon the personal estate of deceased persons before the appointment of an administrator or executor how enforced, 45. assessors to give notice to bring in lists of polls and property, 46. property liable to taxation shall be assessed at its fair cash value, 46. 456 INDEX. ASSESSMENT OF TAXES, (Continued.) assessors shall subscribe and take oatii at the close of valud- tion list, 46. penalty for taking false oath, 46. assessors may verify lists by the oath of the party, 46. shall make a valuation, 47. shall receive lists as true valuation, unless, &o. 47. shall make an estimate when lists are not brought in, 47. assessors to assess persons liable at time of last annual assess- ment on application made seven days before any election, 47, 48. corporations to make return to assessors of names of stock- holders, number of shares belonging to each capital stock, &c. 54. penalty for neglecting to make such returns or for making false returns, 55. returns to be made by certain corporations to state market value of shares, 65. aqueduct corporations similar returns, similar penalties, 55. amount of stock held by banks as collateral security returned to assessors where borrowers reside, 56. directors of corporations to make returns in certain cases, 48. estimate conclusive, unless, &c. 47. state, county, and town taxes may be included in one assess- ment, 48. county taxes how assessed, 48. one sixth to be assessed on polls, proviied, &c. 49. assessors may add 5 per cent, tot convenience of apportion- ment, 49. to deposit copy of the valuation in their ofSoe, 60. contents of the valuation, 50, 51. form of tax list, 61. assessors to commit lists to collectors with warrant, 61. warrant valid if signed by a majority, 61. • contents of warrant, no seal necessary, 5Jl. if there is no collector, warrant to be given to sheriff or his deputy, 51, 52. two assessors may proceed in certain cases, 62. when warrant is lost a new one may issue, 62. inclusion of persons not liable does ,not make void the tax as to others, 52. tax void if from the valuation of a preceding year, 63. accidental omission does not make void the tax, 62. re-assessment when legal, 53. separate real estates of the same owner, to be separately assess- ed, 53, assessment of parish taxes, See Parishes. of school ta^es, See School Districts. of state taxes, 48, 49. highway deficiencies of the preceding year how disposed of, 380. assessors to post up notices of discount on taxes allowed by towns, 57. cannot omit to tax persons against their consent, 96. INDEX. 457 ASSESSORS, iow cioseu and qualified, 27. form of oath, 27. penalty for neglect to take oath, 28. to obey warrant from state treasurer, 48. responsible only for want of integrity and fidelity, 28. compensation of, 29. commissioners may appoint in certain oases, 49. powers and duties of in the assessment of taxes, See Asoees- ment of Taxes. in the assessment of school taxes. See School Districts. power of as to books furnished by school committees, 248, 249. returns to be made by assessors to school committee, 31. may oppose the discharge of persons committed for non pay- ment of taxes, 70. to receive notice of their application fc(r discharge, 71. may order the coUeoter to compel payment of taxes, &o. 70. may remoTe collectors in certain cases, 82. if collector die, may appoint a new one, 81. to examine lists of enginemen and certify to town treasurer, 143. to assign limits to highway surveyors, 372. powers of as to highway taxes not paid within the limited time, 380. assistant assessors how chosen and qualified, 28. duties of assistant assessors, 28. duties of assessors under the militia laws 29, 30. duties of as to elections, see elections. forms for assessors, see appendix, \ — 9. AUCTIONEERS, to be licensed for a year only by selectmen, 60. to pay selectmen for license, 60. license of, to be recorded by selectmen, 60. may be licensed by commissioners, for a year only, if selectnwn unreasonably refuse, 60. to give bond to state treasurer ; condition of bond, 60. bond to be approved and sent to treasurer, by persona nho license, 60. may sell in any town within their county, 61. penalty on, for receiving goods from servants and minors, 61. for selling their own goods by night, 61. auctioneer may sell out of his county real or personal estate on the premises, 61. acts concerning auctioneers not to extend to hawkers and ped- lers, 62. auctioneer cannot delegate his power, 62. duties on sale at auction abolished, 63. for selling at auction without license, 61. tenants answerable if they permit unlicensed sales on their premises, 62. goods offered for sale at auction by persofts not licensed, for- feited, 61. COAL, how sold, 171. how weighed, 171, 172. CHARCOAL, how measured, 170, TV* 458 INDEX. COLLECTION OF TAXES, collectors to collect taxes according to warrant, 67, 68. to complete coUeotiona, though term of office has expired, 68. demand to be made before distraining, 68. parties claiming abatement must produce certificate of asses- sors, 68. party liable to pay costs and fees, 68. errors in names not to defeat collection of taxes, 68. collectors may demand aid — penalty for refusing, 68. if persons refuse or neglect to pay tax it may be leyied by dis- tress of goods, 69. goods excepted from distress, 69. distress how long to be kept, 69. how advertised and sold, 69. sale may be adjourned once, 69. notification of adjournment to be posted up at place of sale, 69. surplus to be returned to owner on demand, 69. sale after the limited times, renders collector a trespasser, 69, 70. if collector purchases, sale is voidable, 70. taxes assessed to insolvent debtors, not recoverable as preferred claims, 70. party may be imprisoned in certain cases, 70. copy of warrant to be left with jailor, 70. persona imprisoned may be discharged, 71. collectors and assessors to be notified of applications for dis- charge, 71. may appear and oppose, 71. collectors liable to pay tax and charges when, &o. 71. remedy if persons remove out of the collector's precinct with- out paying, 71. collectors may maintain actions of debt or assumpsit against persons removing, &c. 71, 72. taxes assessed upon personal estate of deceased persons before appointment of executor may be enforced after one is ap- pointed, 72. actions for taxes"maintainable only when given by statute, 72. cannot recover interest on taxes, 73. remedy of collector when a person is taxed for real estate in hia occupation of which he is not the owner, 7i. sale of stocks for taxes, 73. sale of real estate for taxes not to affect rights of person not taxable therefor, 74. in cases of sale of real estate for taxes, supreme court has full equity powers, 7o. taxes to be a lien on real estate two years and until alienation, lien on separate estates, 75. remedy of collector against non-resident owners of real estate, 76. demand of payment to be made on attorney or non-resident owner, if, &c. 75. ■Vhen such demand is made, collector to wait two months, 76. evidence of the demand of payment, what shall be competent, 76. INDEX. 459 COLLECTION OF TAXES, (^Continued.) demand of payment of mortgagee or his attorney, 76. evidence of posting notifications, what competent, 76. sales of real estate, how advertised, 77. contents of advertisement, 77. where name of town has been changed within three years, old and present names to be inserted, 77. similar notice of sale to be posted by collector, 77. if taxes are not paid, collector to sell sufficient to pay them and costs, 78. sale how made when estate cannot be divided without injury, 78. sale m.iy be adjourned but not over seven days in the whole 78. contents of deed to be given to purchaser, 78, 79. redemption when purchaser cannot be found, 79. owner may redeem within two years, 79. real estate sold for taxes may be redeemed after two years in certain cases, 79. any person having a lawful title to such real estate, may re- deem at any time within two years after actual notice of the sale, 80. when no collector is chosen, sheriff or his deputy shall collect, 80. duty of sheriffs in such case, 80. sheriff's fees for collecting, 81. liability of towns when collectors neglect to pay over, 81. on the death of collector list to be delivered over to assessors, 81. deficiency in state or county tax how supplied, 82. collectors to be credited with abatement, 82. COLLECTORS, how chosen and qualified, 63. to give bonds to the town, 63, 64. constables to be, when, &c. 64, town treasurers may be, 64. treasurers when collectors may issue warrants to distrain, &c. 64. collectors may be authorized by town to make use of the pow- ers conferred on treasurers when acting as collectors, 64. may be removed by assessors in certain cases. if collector dies or becomes insane, assessors may appoint a new one, 81. to exhibit accounts to selectmen — penalty for neglect, 82, 83. liability for neglect in paying over taxes, 81. in collecting taxes, 81. to keep account of all persons who pay taxes, 64. to give to persons paying receipts upon request, 64. to return lists of those who pay taxes twice a year to selectmen, 65. delivery of list to one of the selectmen sufficient, 66. penalty for neglect to make return, 65. for false return, 65. compensation of, 65. fees of, 77, 78. powers and duties of in collecting taxes. See Collection of Faxes. forms for collectors, Appendix, 10, 14. 460 INDEX. CONSTABLES, nature of the ofBoe, 84, 85. how chosen and sworn, 85, penalty for refusing to serve as, 86. persons exempted from being, 86. where persons elected do not declare their acceptance, new choice to be made, 85. if persons elected refuse to take oath, town treasurers may prosecute, 85, 8G. to be collectors of taxes, when, &c. 86. to execute warrants from selectmen and county commissioners, 86. to serve legal writs, &c., from justices of the peace, 86. may serve court writs where damages laid do not exceed 70 dol- lars, 87. constable not competent to serve civil process until he has given bond, when so required not obliged to serve, 87. may serve writs where their towns, &o. are parties, 87. of replevin to amount of 100 dollars, 87. powers of, in unincorporated places annexed to their towns, 88. may convey persons and property beyond their town, &o. 88. to serve warrants of treasurers, when collectors, 64. warrants of town clerk, 86. notices of petitions to the general court, 86. to search for gunpowder kept contrary to law, 337. to arrest disorderly persons in town meetings, 88. to execute warrants of coroners — penalty for neglect, 88. to serve venire for jurors without delay, 89. to summon jurors drawn four days before court, 89. penalty on for neglect, 89. of&ce of justice of the peace not incompatible with that of con- stable. to complain of breaches of certain laws, 90, 91. power of to act without warrant, 91. power of when an affray takes place in their presence, 90. may arrest^and keep in custody without warrant, rogues, vag- abonds, 91 . when an affray is over cannot arrest without warrant, 90. where a felony has been committed may arrest, &o., the felon, 90. may command aid — penalty for refusing it, 91. fees of, 92. special constables; 92. to make return on the certificate of election of representatives, 111. CULLERS OF HOOPS AND STAVES, 178. DISCOUNT ON TAXES, may be allowed by towns, 67. assessors to post up rates of, 67. DOMICIL, rules to determine, 38, 39, ELECTIONS. qualifications of voters at, 93, 94. persons exempted from taxation by assessors on account of age, infirmity, &o., not entitled to vote, 95. persons cannot be exempted against their consent, 9B. tNDEX. 461 ELlICTtONS, {Continued.) persons residing on lands ceded to the TJ. S. not entitled to vote, 95. collectors to make return of those who pay taxes, (Stb. — See Col- lectors. selectmen to post up lists of voters, 96. to be in session for correcting list, &c., 96. sessions where voters exceed one thousand, 96. penalty for giving false answers to selectmen at such sessions, 97 selectmen not answerable for refusing votes of persons not on lists unless, &c., 104. moderator may refuse the votes of all persons whose names are not on said list, lOt. liability of selectmen for refusing to receive votes of qualified voters, 104. not to be held on days designated by law for military duty, 98. meetings for election of (Jbvernor, &c. when to be opened, 98. who are to preside at elections, 100. presiding officers to have list of voters, and time to examine it, 101. votes to be deposited by voter in person, 102. penalty for voting if not qualified, 102. for giving in more than one ballot, 103. for giving false answers to presiding officers, 103. for aiding and abetting illegal voting, 103, lOi. for disorderly conduct at, 104. if selectmen neglect, &o. duty at, 10 1. mode of determining result of elections, 105. plurality of votes to elect, 105. to where more than one is to be chosen, 105. what officers may be voted for on one ballot, 101. selectmen to determine how votes shall be given in and give notice in warrant, 101. no person to vote in elections of Governor &c., until his name is found on list and checked, 101. votes to be presented open and unfolded, 101. votes at the different elections may be open or sealed, 103. what votes to be rejected when counting, 103. commonwealth to provide envelopes, 103. ballots to designate persons voted for, 101. forms of returns, See Appendix, of stale officers, meetings for when to be held, 98. when to be warned, 99. meetings for election of representatives to general court, how notified, 99. returu of votes for governor and lieutenant governor, 106. for senators, 106. votes for each person to be written in words at length against the name, 109. returns to have a superscription expressing the purport of the contents, 109. mayor, aldermen and city clerk, to examine returns of ward officers of cities, 107. 462 INDEX. ELECTIONS (Continued.) returns not to be rejected when number of votes &o., can be ascertained, 107, 108. errors how corrected, 107, 108. secretary of oofnmonwealth on receiving returns of town elec- tions unsealed to notify returning officers, 108. returning officers to make and transmit copy of their record sworn to and sealed up, 108. , returns not to be rejected for certain informalities, 108. representatives how apportioned, 109. penalty on towns for electing representatives when not entitled &o., 109. towns liable to fine in case of neglect to choose, 109. record of the election of representatives to be made, 110. - selectmen to give notice to persons elected, 110. to certify their election, 110. form of certificate, 110, 111. certificate to have a return of notice thereon. 111. penalty on selectmen for giving certificate not in accordance with the declaration of the vote, 110. of county officers. returns of commissioners' election how made, 112. time and manner of election, 112. if no choice,'new election to be had, 112. vacancies how to be filled when whole are not chosen, 113, 115. commissioners to be divided into three classes, 113. now in office to be divided into classes by lot, 113,111. one commissioner to be chosen each year at time of eledtion of governor, 114. chairman to be chosen annually, 114. special commissioners now in office to hold until 1856, 114. time of elections, tenure of office of special commissioners, 114. plurality of votes to elect, 115. time of meeting of board of examiners, 116.. choice of special commissioners, 116. vacancies by death, &c., how supplied, 116. commissioners to be of different towns except, 116. to hold offices for three years and may be re-elected, 116. election, of county treasurer, 117. of registers of deeds, 117. cities to vote for register of deeds, and county treasurer, in March and April, 117. at the election of county treasurer the votes must be counted in open town meeting, 117. county treasurer and registers of deeds to be chosen in Novem- ber every three years, 117. counting, recording and certifying of votes, 118. result of election how determined, 118. new elections of registers when to be ordered, 119. representatives to congress and presidential electors. state divided into eleven congressional districts, 119. representatives to be chnseu the Tuesday after the first Mon- day of November bienniallj, 120. INDEX. 463 ELECTIONS, (Cmlinued.) selectmen to preside at meetings for election of, &o., 120. to seal up and transmit votes to the sheriff or secretary of state, 120. to be chosen by plurality of TOtes, 120, 121. ■when two or more have equal highest number of votes, new elections to be had, 121. proceedings in case there is no choice, 121. when vacancies happen, 121. meetings for choice of electors how notified, 121. when to be held, 121. names of all the electors to be on one ballot, 122. selectmen to preside at meetings and certify lists of votes, 122. time and manner of transmitting vote, 122. laws relating to duties of town officers in other elections appli- cable to, 122, 123. of town officers. what town officers to be chosen at annual meeting, 23, 24. what officers to be chosen by written baUots, 24c. written includes printing &c., 24. what town officers to be sworn, 24. penalty on towns or neglect to choose selectmen or assessors, 5" i . commissioners miy appoint assessors in certain cases, 24. officers to be appointed by selectmen, 24, 25. persons elected^o bo notified that they may be sworn, 25. penalty for neglect to take oath, 25. when oath is not required to be summoned before town clerk to declare acceptance, 26. penalty for neglect, 26. town office to be deemed vacant if certificate of oath or declara- tion of acceptance is not filed within seven days, 26. offices vacated by removal from town, 26. vacancies how filled, 27. no person obliged to serve in same office two successive years, 27. ENGINEMEN, how appointed, 140. number of, to each enerine, 140. hook and ladder men to be appointed, 140, 141. to be appointed to private engines by selectmen, 141. if selectmen refuse, commissioners may appoint, 141. to live near engines, 141. may be removed for negligence in discharge of duty, 141, 142. when exempted from militia duty, 142. serving as jurors by vote of town, 142. serving as constables, 142. to meet in May to choose officers and make by-laws, 142. monthly, &c., 142, 143. to have allowance from towns, 143. commanding officers of engines to certify lists of, to assessors, 143. assessors to certify to treasurer, 143. treasurer to pay over — remedy if he refuses, 143. penalty on commanding officer for refusing to make certificate or making false one, 144. 464 , INDEX. ENGINEMEN, (Gontimed.) provisions not^ to take effect unless adopted by toirns, 144. penalty on, for disobedience to fircTrards, &o., 146. persons wantonly injuring engines to be punished, 144. FENCES AND FENCE- VIEWtERS, fence TieWers, how chosen and quaUfled, 123, 124. penalty on for neglect of duty, 124, fees of, 124. legal fence what shall be considered; 124. adjoining occupants to maintain partition fence equally, 124. proceedings when a party neglects, &c., 124, 125. remedy against party not repairing, &c., 125. not applicable where there is an agreement between parties, 125. notice of appraisement" by fence viewers t'o be given to adjoin- ing owner, 126. controversies about repairing, how determined, 126. compensation for repairing more than just share, 126, 127. how made when lands are bounded by water, 127. water fence when necessary, how made, 128. division may be made of lands occupied in common, 128. where one party lays open enclosed lands the other may pur- . chase his right in partition fence, 128. where unenclosed lands are afterwards enclosed, &c. the party benefited shall pay, &c., 129. fence viewers; whence taken, when partition»fence8 are on town lines, 129. fences to be maintained, conformably to agreement of pa/rties or- assignment of fence viewers, by owners, and their heirs and assigns, 129. one party may lay his lands common, by giving notice, 129, 130. party may be bound by prescription, to maintain fence, &c., 130. statutes respecting fences, do not affect contracts or rights be- tween parties, existing independently of the statutes, 130. apportionment of fence around general fields, 130, 131. proprietors who do not improve, not obliged to maintain fence, 131. expense of apportioning said fence, how borne, 131. proceedings, when any part of fence assigned is deficient, 131, party neglecting to repair liable to double damages, 132. liability to repair, in case of sudden destruction, &o. of fences, 132. FIELD DRIVERS AND IMPOUNDING. field drivers how chosen and qualified, 133. to take up cattle, 133. fees of field drivers, 134. towns to maintain pounds, penalty for neglect, 134. pound keepers to be appointed, 134. to provide for beasts impounded, 133. fees for pound keepers, 133. field drivers and pound keepers to be paiid by owners, 133. beasts doing'damage-may be distrained, and shall be impounded, 135. INDEX. 465 FIELD DRIVERS AND IMPOUNDING, (Gontimed.) person distraining, to state his demand, 135. in certain cases field driver need not leave memorandum, 135, 186. others neglecting it become trespassers ab initio, 136. person commencing action against field driver within twenty- four hours waives the required notice, 136. notice need not state the hour of the day, 136. field driver's name may be signed to the notice by another at his request, 137. actual notice is not equivalent to the required written notice, 137. where owner's fence is deficient he may distrain cattle not coming into his close through deficient fence, 135. owner may distrain cattle which were grazing on the highway and escaped into his close though his fence was deficient, 135. beasts not to be delivered, until all costs and charges are paid, 136. notice to be given to the owner or keeper, 136. or posted up, and published in a news-paper, in case, &c., 137. sum due from the owner, how to be determined, 137, 138. if not paid, the beasts to be sold, 138. proceeds how disposed of, 139. beasts escaped or rescued, may be retaken, 139. penalty for rescuing beasts distrained, 189. legality of a distress to be tried only by an action of replevin, 189. FIRES, buildings pulled down to prevent spreading of, 146. ■ embezzling property at, larceny, 146. FIRE DEPARTMENTS. fire companies must be authorized in writing by selectmen, 147. penalty for joining unauthorized company, 147. acceptance of towns necessary, 147. fire departments may be established by selectmen, 147. organization of fire departments, 147. selectmen to appoint engineers, &c., 148. organization of engineers, 148. powers of engineers in fire departments, 148. organization of enginemen, &o., 149. engineers to have care of engines, &B., 149. engineers to make certain rules, 149, 160. acceptance of towns in organizing fire departments, 160, 161. FIREWARDS, how chosen, 145. penalty for not refusing or accepting, 146. to attend fires, 145. may order buildings pulled down to prevent spreading of fire, 146. command assistance, 146. give orders to enginemen, &o., 146. one director cannot lawfully exercise the authority conferred upon firewards, 146. GUIDEPOSTS, See Sdectmin. E 466 INDEX. HEAXTH, BOARD OP.iowns may choose, 162.. powers of city councils in relation to public healtli, IS^j how such powers may he exercised, 162. physician to, 152. compensation of physician, 162, 163. to make regulations as to nuisances, &c., 153. may make provision as to infected articles, 163. may make regulations as. to interment, &c., 153. cities and towns to provide burial grounds, 153. new burial grounds not to be established wi&out permission, 153, 164. penalty for unlawful burials, 154. powers of boards of health, 164. notice of penalties established by boards of health, 154. appeal to 0. C. P. from order of board of health, 156. defacing or desecration of burial how punished, 156, 166. burial ground not to be closed without notice, 166. tombs on private land, 156. their regulations to be published, 156. to examine into nuisances, &c,,. 167. when nuisances are found on private property, to order owner to remove the same, 157. if the owner, &c. does not obey orders' of the board, then, &o. 167. notice to remove nuisance how served, 167, , proceedings when order is not complied with, 168. expenses of removing by whom paid, 168. , may remove the occupants of any cellar, &c., occupied as a dwelling house, 168. expenses of removing nuisance how recovered, 168, 169. when a party is convicted of a nuisance &o;, 169. court of common pleas may issue, injunctions in cases of nui- sance, 159. how board may make compulsory examination of premises, when refused, &c., 169. may grant permits for the removal of infected articles or sick- persons, 159, 160. may remove infected persons to a separate house, &o., 160. if the infected person cannot be removed, others may be &c. 1601 persons may be stationed on borders of other states, to exam" ine, &c., 160, 161. two justices'may issue warrants to remove sick persons, 161. one justice may issue warrant to secure infected articles, 161. justices may take up houses, stores, &o., for the safe keeping of goods, &o., 161, 162. ofBcers may break open houses, shops &c., and command aid 162. expenses to be paid by owners of goods, &o., 162. towns shall make compensation for houses, ifec, or services im- pressed, 162. removal of prisoners attacked with disease in jail, 162, 163. return of removal to be made to the court — such removal shall not be an escape, 163. |owns may establish a quarantine, 163. two or more towns may establish common quarantine ground, 163. INDEX. 467 HEALTH, BOARD OF, (Continued.) board of health may establish the quarantine of vessels, 163. quarantine regulations to extend to all persons and all goods, &c., 163. quarantine regulations 1o be binding on all persons after pub- lic notice, 164. vessels to be ordered to quarantine ground, 164. penalty, if master, seamen, &c., refuse to make answer on oath, &o., 164. <[uarantine expenses to be paid by person or owner, 164. hospitals for the emaU pox, may be provided by towns, 165. to be under the orders of the board of health, 165. not to be established within one hundred rods of houses in an adjoining town, unless &c., 165. physicians and others, in hospitals, to be subject to board of health, 165. hospital shall be immediately provided, wlien a dangerous dis- ease breaks out unexpectedly, 165, 166. selectmen and board of health, to give notice by suitable sig- nals, 166. penalty on physicians and others, for violating regulations, 166. every householder to give notice of small pox in his family, 166. penalty oh physicians, for not giving notice of small pox. Sec., 166. towns may provide far inoculation of inhabitants, and defray expenses, 167. all penalties forfeited to town, and recoverable by treasurer, 167. HIGHWAYS, See Selectmen and Surveyor! of Highaayt. JURORS, See Selectmen. LCTNATIC PAUPERS, See Paupers. MARRIAGES, See Town Clerk. MEASURERS OF WOOD, BARK, AND CHABCOAL, appointment of, 167. dimensions of cord wood, 168. city government may regulate inspection of bark. penalty for selling wood and bark not mearared, 168. fees of„169. bark need not be measured under certain circumstances, wood brought in by water how measured, 169. carters to have tickets, &c., 169. dimensions of charcoal baskets, 169, 170, dimensions of charcoal boxes, 170. penalty for using illegal measures, 170. forfeitures how recovered, 171. MILITIA. See Selectmen, 352. MODERATOR, at what town meetings to be cTiosen, 21. during the election of, town clerk shall preside, 22. powers and duties of, 22, no person shall speak without leave of, 22. may order persons conducting in a disorderly manner to with- draw, 22. on refusal may order constable to confine them till the adjourn- ment of the ineeting, 22. 468 INDEX. MODERATOR, {Continued.) may administer oaths of office, 23. to receive the votes of all persons whose names are on the lists certified by selectmen, 104. may refuse all others, 104. OVERSEERS OP THE POOR. See Poor. PARISHES, general powers of, 184, 185. rights heretofore existing continued, 185. capable of taking gifts for the purpose of supporting schools. may assess pews in meeting-house. must purchase pews of disseatiag owners at appraisal. membership of voluntary, 187. may regulate admission of members by by-laws, 187. members alone may vote in, 187. annual meetings for choice of officers when to be held, 188. what officers to be chosen, 188. meetings of how warned, 188. meetings at which money is raised mast be warned seven davs before held, 188. officers how chosen, 186. how sworn, 189, election powers and duties of moderator, 189. nothing to be acted upon unless inserted in the warrant for calling the meeting, 189. any matter to be inserted requested in writing by five or more qualified voters, 189. meetings may be called by a, justiee of the peace if assessors unreasonably reAise, 190. person chosen collector shall< declare his acceptance or refusal, 190. if he refuses a new choice to be made, — what to be eons^ere^ a refusal, 190. prudential affairs of how managed, 190. objects for which money may be raised, 190. provisions not to affect existing rights, 190, 191. mode of taxation where monies prescribed by act of incorpora- tion, 191. taxes of how assessed, 191. one withdrawing before the first of May not liable to be as- sessed, 191. members not liable to be taxed for property held as trustees, &e. may appoint their treasurers collectprs, 191, 192. may abate taxes for prompt payment, 192. taxes must be assessed according to the valuation of parish assessors, 192. taxes of, assessed according to valuation of town assessors, void, 192. parishes and religious societies may appoiiit trustees to hold trust funds, 192, may establish rules for the government of such trustees, 192, 193. unincorporated societies piay bold and pianage donations, 192, INDEX. 469 PARISHES, (Continued.) unincorporated societies may organize themselves, &c., 193. first meeting to be called by justice's warrant, 193. contents of warrant and proceedings thereon, 193. powers of societies so organized, 194. proprietors of churches, &c., may raise money for alteration, repairs, &o., 194. assessment and collection of such money, 194, 196. sale of pews by the treasurer, 195. afiSdarits of notice of sale made eyidenoe, 195. how proprietors meetings may be called, 196, 196. provisions not obligatory on parishes except, &c., 196, proprietors may taie down pews to alter churches, 196. mode of procedure, 196. parishes, &c., to have like power in such case, 196, 197. no compensation allowed to pew owner when a church is unfit for use, 197. when a pew is removed its value to be tendered to the owners, 197. liabilities of Parish assessors, 197. records of churches to be deposited with town clerk, 197,, 198. PAUPERS, SETTLEMENT OF. under provisions of the revised statutes, 205. married women to have settlement of their husbands, 205. it husbands have none, their own at time of marriage shall not be lost, 205. no matter where marriage was contracted if such as our laws recognize, 205. void marriage does not confer one, 205, 206. legitimate children to follow their father's, 206. where father has none, their mother's, 206. children of full age or female minors married do not follow settlement of parents, 206. exception as to idiots from birth, 208. minors acquire the new settlement of their mother though at the time they reside out of the commonwealth, 206. illegitimate children to follow that of mother at time of birth, 206, 207. gained by living three years on freehold estate, &c., 207. though the estate be under mortgage for its fuU value, 207. sufficient if title be apparently good, &c., living on an estate which one has in remainder not sufficient, 207 a person receiving aid from the town would not acquire a set- tlement under this rule, 207. person under guardianship would, 208. mortgagor occupying by leave of lessor for years of mortgagee does not acquire a settlement, 208. husband occupying for three years successively land assigned to his wife as dower obtains a settlement, 208. occupation of a freehold estate by grantor after fraudulent conveyance is not sufficient to gain a settlement, 208. occupation by grantee for three years gains a settlement though grantor had no title, 208. 470 INDKX, PAUPERS, SETTLEMENT OF, (Continued) occupation for three yeara successively does not where occu- pant has received aid from town, 208. support given by one town prevents a pauper acquiring a set- tlement in another, 208. by being assessed five successive years for an estate of $200, 209. construction of term estate, 209. not necessary that taxes should have been paid, 209. by serving for one year in certain town offices, 209. having been a settled and ordained minister, 209, 210. by legal vote of the town, 210. by an incorporation of an unincorporated place, 210. where to fall on division of towns, 210. when a new town is composed of parts of old (mes, 210, 211. gained by serving four years apprenticeship, &c., 211. by residence of ten years and payine taxes five years, 211. the residence must be uninterrupted, 211, 212. if in the ten years pauper calls for aid which is paid by town in which he is settled, it will prevent his gaining a settle- ment, 212. a parent does mot gain a settlement &c., where be receives money from the town to suj^ort his children, 212. assessment and payment of a tax under certain circumstances sufficient to gain a settlement, 212. it is not essential that the pauper had a fee or even freehold in the estate for which he was taxed, 212. a settlement is not if the person has the other requisites and the assessors omit to tax him from any cause, 213. the payment of a highway tax five years will suffice, 213. settlement is not gained by a person if in the ten years he is committed to gaol and receives relief as a pauper, 213. settlements under the repealed clause of the statute of 1798> ch. 34, 213. judicial expositions of that clause, 214. settlements prior to April 10th 1767, 214. by vote of the inhabitants, 215. under the warning out.laws, 215. repeal of warning out laws, 215. settlement from April 10th, 1767, to June 23d, 1789, gained only by vote of town, 215. settlements from June 23d, 1789, to the passage of the act of February 11th, 1794, 216,'216. provision for persons who have begun to acquire settlements, 216. old settlements to continue till new one acquired, 216. acquiring a settlement in another state does not cause the loss of a settlement in this, 216. persons residing on lands ceded to U. S. do not require settle- ment, 216. PAUPERS, SUPPORT OF, towns shall support their poor, 218. powers and duties of overseers relating to, 218. INDEX. 471 PAUPERS, SUPPORT OF, (ConUnued.) towns may provide almshonsea, 218, 219. kindred of poor if able to support them, 219. court of common pleas njay assess kindred for that purptse, 219. same court may also assess for future expenses, 219. and for costs of proceedings, 219. may order with which of such kindred pauper shall live, 220. course of proceedings in ahoTe complaints, 220. overseers of poor to provide for relief of strangers, 220, 221. how expenses of such relief may be recovered, 221. recovery of, shall bar the town against which had, ftom disput- ing settlement, &c., 221. towns removing paupers within thirty days liable for a dollar a week only for their relief, 221. does not apply to the case of the removal of a pauper after his decease, 221. in computing the 30 days the day upon which notice is received is to be excluded, 222. overseers to relieve and support paupers having no lawful set- tlement in tills state, 222. such paupers may be conveyed to the place where they belong, 222. towns liable to individuals, for relief of paupers after notice, 223. _ person in order to recover must have given the notice required by statute, 223. it is not enough that the overseers had reasonable notice, 223. paupers may be removed to places of settlement, 223. mode of proceeding in case of removals, 223, 224. notifications, &c. required may be sent by mail, 224. provision for paupers in unincorporated places, 225. penalty for leaving paupers in towns to which they do not belong with intent, &c. 225. penalty to enure to the use of the town, 225. penalty on shipmasters for landing convicts, &c. from other states, 226, 226. overseers of the poor, &c. may prosecute under the provisions of this title, 226. state paupers who not to be considered, 226. provision as to erection of state almshouses, 226. distribution of paupers from western counties, 227. state almshouse at Monson set apart for pauper schools, 227. appointment &c. of officers, 228. superintendent, his salary and duties, 228. punishment of inmates leaving without consent and found beg- ging, 228, 229. when either establishment is full paupers may be distributed among the others, 229. . provision for other establishment when the present are full, 229. commissioners may allow city of Boston to send sick state pau- pers to Rainsford Island, 229. provision for the S'ljri >it of paupers when almshouses are full at time of aj»|aica,tion, 230. 4?2 tSMi. PAUPERS, SUPPORT OF, {Continued.) inmates of state almshouses becoming iUsane how committed to Hospital, 229, 230. one inspector in each board to be appointed annually, 230. reduction of allowance to cities and towns for transportation of paupers, 231. allowance to cities and towns for state paupers Unable to be re- moved, 231. husband and wife one of whom is state pauper to be supported in the other's town of settlement, 231. auditing and allowance of accounts for such expenses, 232. pauper discharged convicts having no known settlement in state to be removed to state almshouses, 23i. to be removed to place of settlement when discovered, 236. place liable to commonwealth for expenses incurred, 235. Sonvicts too sick or infirm to be provided for, cities and toWng to be allowed only actual expenses of transportation, 235. cities and towns to be allowed for expenses ot providing for paupejs too sick to be removed, 235^ 236. inspectors to have the same powef s in case of death of paupers as towns and overseers of the poor, 236. towns liable for the expenses of their paupers at state alms' houses, 236, 237. liabilfiy of kindred of paupers for their expenses at state alms- houses, 237. returns to be made by overseers to secretary of state, 232, 233. overseers may take effects of deceased paupers, &c., 233, 234. support of paupers in the house of correction, 234. I/unatic paupers, commitment of when furiously mad to state hos- pital, 237, 238. judges committing, to certify the place of residence of, 239. selectmen to be notified of the application for commitment of, 239. ' may be committed by overseers of the poor with consent of trustees, 239. expenses for supporting how paid, 239, 240. towns paying to be reimbursed by the town of pauper's settle- ment, 240, 241. - discharge of incurable lunatics, 241. removal of those who cease to be dangerous, 241, 242. fees of Judges of Probate on complaints for commitments to the hospital, 242. fee of Judge of Probate of Worcester for hearing applications for discharge from the hospital, 242. , when hospital is full where removed, 242. lunatics confined in jails &c. removed by order of governor, 243. sheriff to execute the order, 243. lunatics not furiously ma 1, 243. POOR, OVEgSEERS OP, how chosen and qualified, 198. selectmen to be if others are not chosen, 198. may bind children of paupers, Sic., 198, 199. to what age and on what terms, 199. by indenture of two parts, one to be kept for minor, 199. INDEX. 473 POOR, OVERSEERS OP, {Continued.) consideratiouB to be for benefit of the minor, 199. to inquire into the treatment of children bound by them, 199. may file complaint in court of common pleaa for neglect. Sic. of master, 199, 200. proceedings of court on complaint, 200. master also liable to action on indenture, 200. by whom action may be brought, 200. action brought by overseers not to abate by death of any of them, 200, 201. money recovered in to be deposited in town treasury, &o., 201. minor may be discharged and bound anew, 201. master may file complaint, &c., 201. apprenticeship discharged by death of master, 201. minor may be bound to mistress, 201. may deliver up dead bodies to physiraans, &c., 202. body not to be given up if claimed by kindred, 202. physician to give bond, &c., 202, 203. to be informed by treasurers of savings bank, on written re- quest, of deposits to credit of paupers, 203. to be overseers of work houses if others are not chosen, See Work homa. to give or withhold approbation of the sale of real estate of spendthrifts under guardianship, 203. duties of, as to support of paupers, See Support of Paupers. POUND KEEPER. See Mdd Drivers and hnpotrnding. POUNDS. See F idd D rivers and Impourtding. REPAIR OF HIGHWAYS. See Surveyors of Bighways. SCHOOLS. State Scholarships, 261, towns may raise money &r, 246. for schools for adults, 246, 247. what to be supported by every town, 244. what by towns of one hundred families, 244. what by towns of one hundred and fifty families, 244. what by towns of five hundred families, 244, 245. additional school in towns of five hundred families, 245. towns containing less than eight thousand inliabitants exempt- ed on certain conditions, 245, 246. towns of less than five hundred families may establish addi- tional schools, 246. towns of less than five hundred families authorized to maintain such school, 246. qualifications of master where inhabitants exceed four thou- sand, 245. schools of 50 scholars to have female assistants, 246. school money not to be applied to sectarian schools, 247. SCHOOL COMMITTEE, to be chosen annually, 251. additional members of, in towns of more than 4000 inhabitants, 251. vacancies, how filled, 261. city or town may require school committee to appoint a super.. intendent, 250. 474 INDHX. SCHOOL COMMITTEE, (Continued.) school comiaittee then to receive no compensation, 251. duty of committee where school is kept for benefit of all the inhabitants, 2S1. to examine as to qualificatioiis of instructors, 252. school teachers must be examined in the elementary principles of physiology and hygiene, 252. duplicate certificate of qualifications to be deposited with seleot- inen, 262. shall select and contract with teachers, unless, &c., 261. teachers' wages to be paid at expiration of quarter or term, 262. committee can fix the compensation of teachers and bind the town to pay it, 262. can dismiss teaidiers, 252, 253. instructors, not to be paid unless the committee certify, &e., 252. pommittee to decide on admission of scholars into schools kept for the whole town, 253. remedy for the unlawful exclusion of a child from public school, 253. race, color, or religious opinions not to aflfect qualifications of scholars, 253. child excluded may recover damages, 253, interrogatories for discovery may be put to school committee, 263, 264. reasons for exclusion to be stated in writing on demand, 264. can exclude from the public schools children of a licentious and immoral character, 264. to visit all the district schools, 264. to keep a record of proceedings, 264, 266. who to prescribe form of registers, 255. duty of teachers in regard to them, 266. compensation of, 265. term of of&ce extended for certain purposes, 265. duties of, in relation to births, 266*. to prosecute breaches of statute in relation to education of children employed in factories, .256. instruction of youth employed in manufacturing establish- ments, 256, 267. does not apply to children coming into state until after six months residence, 267. penalty for violation, 257. children must be sent to school twelve weeks in each year, 267. penalty for neglect to send, 257. committee to inquire into cases of neglect, and report, 267, 258. sufficient excuses for not sending, 258. treasurers of town or city to prosecute. towns authorized to make by-laws relative to children not at- tending school, 258. persons appointed to complain of a breach of such by-law, 259. truant children may be committed to institution of instruction, 269. children fined may in default be committed, 259, 260, INDEX. . 475 SCHOOL COMMITTEE, (Contimud.) jurisdiction of such offences Tested in police conrt by city or- dinance, 260. authority of as to school books, 247. scholars to be supplied by their parents, &c., with the books prescribed, 248. books may be provided by school committee, 248. to be famished to scholars at expense of the town, 248. expense of books so supplied, to be taxed to parents, &c., 248, 249. if parents, &c, are unable to pay, such tax for books may be wholly or partially omitted, 249. books not to be bought, which favor any particular sect of christians, 249. school books and stationery may be famished at expense of city or town, 249. duties of instructors in colleges, &c., as to, 292, 293. of miuisters and town officers, 293. forfeiture if towns neglect to raise money for, and how ap- propriated, 293, 294. school committee to receive and appropriate sums forfeited, 294. provisions not to affect funds of corporations for support of schools, 294. school returns, 288. state school fond how apportioned among towns, 291, 292. no allowance to towns neglecting to make returns or raise cer- tain sum of money, 291. land may be taken for school houses, when, &c, 294, 295. owner may have jury to revise damages, 295, 296. SCHOOL DISTRICTS, may raise money for certain purposes, 272, 273. to be corporations for certain purposes, 266. may hold real and personal estate, 266. property of, exempted &om taxation, 277^ may raise money for district libraries, 273. formation of, 267, 268. provisions of law may be carried into effect without, 268. restriction as to redistricting, 267. oonstmction of the provi^on as to redistricting, 267. proceedings when town shall abolish school districts, 267. proceedings when district's school houses are erected at expense of town, 267. provisions extended to lands connected with school houses, 267 school districts discontinued at discretion of school committee , 267, 268. towns cannot alter limits of, so as to impair contracts, 268. division of town into, must be geographical, 268, 269. must be so made as to include all the inhabitants of town, 269. prudential committee of, may be chosen by towns, 269. by districts, when, &c., 270. vacancies how filled, 269. duties of prudential committee, 270. to be performed by town committee, when, &c., 274. 476 iNpBx. SCHOOL DISTRICTS, (Continued.) committee when hiring instructor acts as the agent of the town, 270. not liable to district for money received from the town treasury, 270. majority may lawfully do official acts, 270. additional members may be chosen at an adjourned meeting of district, 270. districts bound by its acts though the vote under which they acted was illegal, 270, 271. to choose a clerk, 271. duties of clerk, 271. clerk to be sworn, 271. to hold his office till another is chosen, 271. once duly sworn, can act without again taking the oath upon his re-election, 271. out of office cannot amend Ms records, 271. may act as such though he has removed into an adjoining district, 272. answerable only for want of integrity, 273. district liable for illegality of proceedings, 273. may determine location of school house, 272. where district cannot agree selectmen to determine, 273. provision relating to providing school-houses may be carried into effect at common expense Of the town, 274. taxes of, to be assessed in the same manner as town taxes, 275. assessment to be made within thirty days after sum is certified by clerk, 275. construction of this provision, 275. moneys raised may be assessed by assessors chosen after the vote, 276. illegal assessment may be revoked by assessors and new one made, 276. if new one is not made, clerk may certify to their successors who may make It, 276. if vote by district to raise money for building, &c. school house is rescinded, assessors cannot after notice make an assess- ment, 276. vote by district that money shall be paid within certain time not binding on assessors, 277. taxes may be made in reference to town taxes of same year. 277. town officers bound by -certificate of clerk, &o., 277. inhabitants being set off to another district will not free them from an assessment before division, 277. where real and personal estate is to be taxed, 274. real estate and machinery of corporations, 274. real estate of nonresident owners how taxed, 274, 276. all lands of, to be taxed in same district, 276. assessors to issue warrants to collectors, 277, 278. and to make certificate of assessment, 278. may abate as in town taxes, 279. have no authority to assess a tax exceeding the sum voted, 278. INDEX. 477 SCHOOL DISTRICTS, (Continued.) collectors and treasurer to have same power as in town taxes 278, 279. assessors, &c. to have same compensation as for like services in town taxes, 279. if districts refuse to raise money, town may do it, 279. selectmen and prudential committee may issue warrants for district meetings, 280. manner of warning meetings, 280. districts may direct the mode of warning and calling future meetings, 280. meetings may be warned in all cases in the manner prescribed in the statutes, notwithstanding the mode of warning may be particularly prescribed, 280, 281. if the inhabitants prescribe the mode, that mode must be fol- lowed, 281. clerk authorized to call and warn annual meetings, cannot call and warn any other, 281. clerk under a vote that the clerk warn all future meetings haa no authority to call meetings, 282. contiguous districts of adjoining towns may unite themselvei into one, 286, 286. no such union to be formed without consent of the districts and towns, 286. united districts may be again separated, 286. first and other meetings of united districts, how called, 286. prudential committee to be chosen, 286. moneys raised to be in proportion, &c., 286. to be assessed by assessors of respective towns, 287. school committees of adjoining towns, to officiate alternately, 287. children living far from school in town of residence may at- tend school in adjoining town or towns, &c., 287. union, purpose and manner of forming, corporate powers of, 282. manner of calling and warning meetings of, 283. clerk of, to be chosen and sworn, 283. duties and tenure of office of, 283. power of to raise money, 283. school houses of, 283. duties of prudential committee of, 283, 284. high school districts, 28t, 285. town committee, power of, to extend to, 284. SEALERS OF WEIGHTS AND MEASURES. See Weights and SELECTMEN, how chosen and qualified, 296. penalty for acting before taking oath of office, 296. to be assessors if others are not chosen and take assessor's oath, 296. to be overseers of the poor if others are not chosen, 296. vacancies how filled, 296, 297. limitation on authority, 297. to be board of Health if others are not chosen, 296. Duties of eespeoting elections. See Elections. " BNGiNEMEN. Sce Enginemen. V 478 INDEJt. SELECTMAN, (Continued.) to appoint, &o. auctioneers. See Auciioneerg. duty as to bond given by collector, 63, 6i. eoUectors to exhibit accounts to, 82. to appoint certain town officers, 26. to exert their influence that youth attend schools, 293. To determine location of school-houses when districts cannot agree, 273, 274. to select school-house lots', &a., 294. i may issue warrants for district meetings, 279, 280. duties of respecting town meetings. See Town Mtetings. Ditties of selectmen as to jveors. to prepare lists of Jurors, at least once in three years, 299. qualification of j urors, 297, 298. Ust to include not less than one for one hundred inhabitants, nor more than one for sixty, 299. persons exempted' from serving as j arors, 298, 299. lists to be laid before town for revision, 299. lists to be posted up ten days, 299. city councils to have same power of revision as towns, 299. names of persons om lists to' be put in a box, &c., 299, 300. names of persons oonviited oi crime, &c., to be withdrawn; 300. jurors how selected, 300. when grand jurors are drawn at same time as jurors for trials, 300. jurors may be drawn in open town meeting, 300, 301. date of draft to be indorsed on the ballot, 301. no person liable to serve oftener than once in three years, 301, meeting for drawing jurors, at what time to be held, 302. penalty for neglect of duty in drawing j urors, 303. before justices of peace jury of six to be summoned on demand of either party, &c., 306, 307. penalty for fraud in same, 303, 301. jurors summoned to determine questions of lunacy, 305. jurors on a petition for the discharge of a lunatic, 305, 306i jurors for alteration of highways, &c. how drawn, Sua., 304. jurors for assessing damages for flowing lands, &c.,how drawn 305. clerks of coiarts to issue venires for jurors, 301. venires to be served without delay on selectmen and town clerk 301, 302. selectmen to call town meeting if, &c., 302. special provisions as to Nantucket and Dukes county, 302, 303. fines on jurors neglecting to attend, 302. fees of jurors, 308. ■Doty op sedbotmen ab to' spendthrifts and insane persons 308 309, 310. ' ' construction of the w^rds " spendthrift " and " insajie person " 308. may present a complaint to' judge of probate when, &c., 309. Jnay file copy of the complaint in registry of deeds, 309. •ontracts &c. by spendthrift if guardian i* appoiatedj Toid when- copy is so filed, 310. INDEX. 47'9 SELECTMEN, (Continued.) duties of as to spendthrifts, &o. to be done by assessors of un- incorporated places, 310. to be notified of application for commitment of lunatics to the State Hospital, 311. duty of selectmen under the laws concerning the raanufaeture and sale of spiritaous and intoxicating liquors, 311, 314. appointment, salary &c. of town agent, 311, 312. agents to be furnished with certificate of authority and to give bond, 312. form of bond, 312, 313. to revoke authority of persons Ijreaking their bonds and put bonds in suit, 313. to arrest persons illegally selling without warrant, 313, 314. to seize liquors kept or sold at places of public -gathering, ar- rest keepers and make complaint, 314. Duties of selectmen as to guide posts. to report to town where guide posts ought to be erected, 315. penalty for neglect, &c., 315. towns upon said report, to determine places for erecting, 316. description of guide posts to be erected, 316. penalty on towns for neglect, &c., 316. for defacing guide posts, 316. Duties of selectmen as to town lines. two or more of, to perambulate town lines, 317. may appoint substitutes, 317. proceedings to be recorded in toWn records, 317. notice of perambulation to be given by those of most ancient town, 317. penalty o:i, for neglect in giving notice or attending, 317. to cause permanent monuments to be erected, &c., 317. duties of, where a town Jaorders on an unincorporated place, 317, 318. duties of, where a town adjoins towns of other states, 318. penalty for neglect of duty in such case, 318. Duties of, in laying out highways, &o., 340, 352. to lay out Mghways, town ways, &c. for the use of their towns, 341. notice to be given before laying out, 343. authority limited to roads having their termini within the town, 342. to give owners of land time to remove trees, .H4z. damages in laying out, &c. how awarded and paid, 343. effect of not removing within time, 342, 343. laying out with Ijouadaries, &c. to be filed in the office of town clerk, 344. and reported to and accepted by town, 344. town cannot direct the laying out of a particular way, 844._ highways and town ways not to be laid through burying grounds, 344. ■what amounts to a refusal, 346. stone bounds to be erected at angles, 345. penalty for not erecting bounds, 346. 480 INDEX. SELECTMEN, (Continued.) how recovered, 345. towns may discontinue town ways, 345. if selectmen unreasonably refuse, &c. to lay out, county com- missioners may, 346. commissioners may approve and accept town ways, &c. wnere towns refuse, 346, 347. commissioners may discontinue ways where towns refuse, 347. towns cannot discontinue ways laid out by commissioners with- in two years, 347, nor lay out again a way discontinued by them within two years, 347. towns cannot dispute legality of ways laid out, &c., 3+7. may raise money for maliing highways and town ways within their limits, 347. limitation of power, 347, 348. county commissioners may lay out town ways in certain oases, 348. ways dedicated to public use, not to become chargeable to towns except, &a., 348. selectmen to close up the entrances to such ways or give notice if public safety requires, 3 18. if not closed up or notice^'given, towns liable for defects, 348. private streets opened to use of public, to be graded at expense of abutters, 349. grading not to be construed dedication or acceptance, 349. grades may be established and recorded by selectmen, who do not thereby accept street, 349, 360. obstructions prohibited, 360. DtlTlES OF, AS TO COMMON SEWEKS AND DRAINS, 319, 323. drains, &o. not to be laid through highway, &c., without their consent, 319. to be constructed as they direct, 319. persons benefitted by making or repairing drains to share ex- pense of construction, 319, 320. such expense to be ascertained by'selectmen, 320. notice to be given before opening common drain, &c., 320, 321. provisions not to affect agreement of parties, 321. selectmen &c. authorized to lay and repair main drains, 321. drains to be property of town or city, &c., 321. proprietors of particular drains entered into main drains, to - be assessed, &o., 321. persons aggrieved by such assessment may appeal, 322. towns and cities may be charged with part of the expense of main drains, 322. provisions not to take effect until accepted by city or town, 323 Duties of in binding orphan childben, 323, — 325. minors how bound, 323. inserting the name of a minor above fourteen in the attestation clause, and his execution of the instrument not suffi- cient, 324. to be bound by indenture of two parts, 324. one part, to be kept for use of minor, 324, i INDEX. 481 SELECTMEN, (Conlinued.) money, &c., paid by master to be fqr use of apprentice, 32i. apprentioeship discharged by the death of the master, 324. minor may be bound to a mistress, 324. to inquire into the treatment of children bound out with their approbation, 325. m case of neglect or misconduct of master may file complaint, &c., 325. not liable to costs unless,