which I think you are not required to make and which probably would not bind the Commonwealth if made. The company, under the statute, must see to it that a legal and effectual cancellation and surrender of the note is made before December 1, 1893, failing which, its charter stands repealed. It appears to me, therefore, that all questions of the regularity and sufficiency of the proceedings to effect the cancellation and surrender in accordance with the statute are their questions and not

yours.

I have called Mr. Chandler's attention to the points above noted, and understand from him that steps will be taken to properly cover them and any others which may be discovered, if any, before filing the papers. But in my opinion your position and duty in the case, now and hereafter, are only as I have above stated.

St. 1893, c. 413, applies to new editions of histories originally published before the passage of the act, if such new edition contains a substantial amount of new and valuable matter, and if it also fulfils the other requirements of the act.

Secretary.

In compliance with the request of the Executive Council to To the be advised upon the question whether St. 1893, c. 413, entitled 1893 "An Act to authorize the purchase of historical works relative December 6. to the services of Massachusetts volunteers during the late civil war," applies to new editions of histories originally published before the passage of the act, I have to say that, in my opinion, the act may be construed to include a new edition of a previously published history, if such new edition contains a substantial account of new and valuable matter, and if it also fulfils the other requirements of the act. The purchase of copies by the Commonwealth is in every case within the control of the Governor and Council and the Secretary, who are to determine whether the history in question fulfils all the requirements of the act, without which the purchase is not to be made.

To the

Secretary. 1893

December 20.

A label or trade-mark may be filed and recorded under St. 1893, c. 443, notwithstanding it consists of several words or devises on separate pieces of paper, or is described as a "label and trade-mark." The rules, regulations and forms prescribed by the Secretary under § 6 relate only to the filing, and not to the form of the label, etc. It is the duty of the Secretary to see that the label, etc, as presented is not in such form as to be mistaken for one previously recorded. The rights of parties as to the form of labels, etc., are to be determined by the courts.

I have your request to be advised upon an application for filing certain labels or trade-marks, under St. 1893, c. 443, whether, in the case of a label or trade-mark consisting of two or more distinct parts, on separate pieces of paper, each part must be treated as a separate label or trade-mark, and whether a paper described by the applicant as a "label and trade-mark" should under the law be described either as a label or as a trade-mark and not as both.

1. In my opinion the Secretary of the Commonwealth has neither the duty nor the power to prescribe, nor, with a single exception mentioned below, to interfere with the form of the label or trade-mark itself. He is to take it as presented by the applicant, who must take the risk of filing the labels, etc., in such form as may be proper and sufficient in the judgment of the courts, which must eventually determine the matter if any question is raised, to secure the protection of the law. The applicant may have a right to treat a combination of several words or devises on separate pieces of paper, to be affixed to one bottle, box or package, as one label or trade-mark, although the word or device on either piece of paper by itself might be incapable of forming a valid label or trade-mark under the law. It must be left to the courts to determine such rights. The Secretary can neither enlarge nor abridge them by any rule or regulation of his office. The rules, regulations and forms which the Secretary is authorized by § 6 to prescribe are only "for the filing" of the labels, trade-marks, etc., and cannot extend so far as to interfere with or control the form of the labels, etc., themselves as the parties choose to present them. The duty of the Secretary appears to be only to see that such

rules, regulations and forms as he may prescribe "for the filing" are complied with, and that the label, trade-mark or advertisement offered for filing conforms to all the requirements of § 4.

The exception above referred to is this: By the last clause of § 4 it is clearly the duty of the Secretary to pass upon the question whether the label, trade-mark or advertisment offered for record might reasonably be mistaken for one previously recorded. This question he must determine in the first instance, leaving the applicant, if aggrieved by his decision, to such remedy as the courts may afford.

The statute appears to be similar in some respects to the patent laws of the United States, under which an applicant files such description, specifications, etc., as he chooses, and the courts eventually determine, as they must here, whether and how far he has secured the protection of the law.

2. As to the second question, in my opinion the Secretary cannot assume that the same paper may not properly be described as both a label and trade-mark, nor require it to be described either as the one or the other, if the applicant chooses to describe it as both, as he may have a right to do under the law.

METROPOLITAN PARK COMMISSION, - EXPENSES.

The expenses of the Metropolitan Park Commission, specified in St. 1893, c. 407, §§ 1, 2, may be appropriated under that act, and are to be charged upon the fund of $1,000,000 thereby provided.

Auditor.

In reply to your request for my opinion whether an appro- To the priation is authorized by St. 1893, c. 407 for the salaries, office 1893 expenses and travelling expenses of the Metropolitan Park December 21. Commission for the ensuing year, estimated at $10,000, and if so, whether it is to be paid from the loan of $1,000,000 authorized by that act, or from other funds in the treasury, I have to say that if the estimate includes only such expenses as are expressly allowed by §§ 1 and 2, it is authorized by the act, and is to be charged upon the fund of $1,000,000 thereby provided. It is, of course, within the power of the Legislat

ure to make a special appropriation for the purpose, but the fund of $1,000,000 is expressly provided to meet the expenses incurred under the provisions of this act," of which the expenses of the commission are a part; and other provisions of the act have some tendency to indicate the intention of the Legislature that they should be charged upon this fund. A like provision in other recent legislation of similar character has received the same construction. The fact that these expenses were met by special appropriation last year has, under the circumstances, no tendency to indicate a purpose of the Legislature that they are not to be charged upon the general fund. The special appropriation of last year covered all purposes for which money was required under the act, and was undoubtedly made only for the reason that the general fund had not then become available.

To the

Civil Service

1893 December 22.

Under the civil service act rules may be made to include persons doing ordinary clerical work by the piece or quantity. The present rules may be construed to include such a case if there is an attempt to evade the law.

I have your request for my opinion whether a clerk in the Commissioners. water income department of Boston, whose duty is to make out and mail bills for water rates for a compensation of one cent each, agreed on with the head of the department, by which he earns about three dollars per day, is within the classified service, or whether the agreement for his services and the manner of compensation take the case out of the civil service act (St. 1884, c. 320) and the rules.

As to your suggestion of the claim that "the personal service rendered by the clerk under an agreement to pay by the piece is not an employment within the meaning of the civil service act and rules, but a contract engagement outside of the rules," I do not think such a distinction between an employment" and a contract engagement" can be maintained, at least in the present case. I have already said or intimated to the com

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missioners that in my opinion a case which the law intends to include is not to be taken out of it, nor taken from the class in which it belongs and put into another, merely by the form under which the person may be selected or engaged for the service, especially if such form is adopted for the purpose of evading the law.* The position of this clerk is a position of employment, in the sense of the statute, and the precise form of the contract of employment is immaterial. The case turns on the question whether a person working by the piece, whose compensation depends on the amount of work done, as distinguished from one who receives a fixed salary or compensation measured by time, is within the operation of the system.

I see no reason to doubt that the statute is broad enough to cover such cases, or that under it the rules may be extended, with the exceptions expressed in § 15, to all positions required to be filled by appointment, and all positions of employment, for labor or other service. The express exception of certain cases indicates the purpose of the Legislature to include all which are not so excepted.

But the statute also provides that the rules may be made from time to time, and may be given a general or limited application; and the question here is whether the present rules extend far enough to include this case; and this depends on the question whether the clerk is included within the description of Schedule A, class 1 or class 2, as a person whose annual compensation is at a rate less than $800" or "a person whose annual compensation is at the rate of $800 and over."

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This description might be construed to include a person regularly working by the piece, at least if his annual compensation could be so nearly determined beforehand as to make it certain whether he belongs in class 1 or class 2; and in a case of palpable evasion or attempt to evade the rules, perhaps it ought to be so construed. But I am informed that the rules have not heretofore been generally understood as extending to persons working by the piece or quantity; and as it is within the power of the commissioners to so extend them, if necessary or expedient, by an amendment, making it clear not only that

See page 72, ante.