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To the State Board of Health.
1908 July 9.
PROPRIETARY OR PATENT MEDICINES-LABEL
PART OF ORIGINAL PACKAGE PROSECUTION PUBLIC
St. 1906, c. 386, as amended by St. 1907, c. 259, providing in section 1 that "upon every package, bottle or other receptacle holding any proprietary or patent medicine... shall be marked or inscribed a statement on the label of the quantity or proportion of each of said substances contained therein," requires that the container of fractional parts sold from the original package by prescription shall be also marked with the prescribed label.
The provision of St. 1906, c. 386, § 6, as amended by St. 1907, c. 259, that the State
Board of Health shall not cause the prosecution of persons violating the provisions of such act "for the sale at retail or for the gift or exchange of any patent or proprietary medicine or food preparation containing any drug or preparation the sale of which is prohibited or restricted as aforesaid," until after public notice, is not applicable to sales of unlabeled quantities.
You request my opinion as to the construction to be given to St. 1906, c. 386, as amended by St. 1907, c. 259. Section 1 of the amended act, so far as it is material upon the questions presented, is as follows:
Upon every package, bottle or other receptacle holding any proprietary or patent medicine, or any proprietary or patent food preparation, which contains alcohol, morphine, codeine, opium, heroin, chloroform, cannabis indica, chloral hydrate, or acetanilid, or any derivative or preparation of any such substances, shall be marked or inscribed a statement on the label of the quantity or proportion of each of said substances contained therein. The size of type in which the names of the above substances shall be printed on the labels as above, shall not be smaller than eight point (brevier) caps: provided, that in case the size of the package will not permit the use of eight point cap type the size of the type may be reduced proportionately. The provisions of section nineteen of chapter seventy-five of the Revised Laws, so far as they are consistent herewith, shall apply to the manner and form in which such statements shall be marked or inscribed.
Section 3 prohibits the sale of any patent or proprietary medicine containing certain substances.
Section 4 prohibits the sale of certain drugs except under certain restrictions.
Section 5 exempts certain classes from the prohibitions of sections 3 and 4.
Section 6 is as follows:
Whoever manufactures, sells or offers for sale any medicine or food preparation in violation of the provisions of this act shall be punished by a fine of not less than five nor more than one hundred dollars. It shall be the duty of the state board of health to cause the prosecution of all persons violating the provisions of this act; but no prosecution shall be brought for the sale at retail, or for the gift or exchange of any patent or proprietary medicine or food preparation containing any drug or preparation the sale of which is prohibited or restricted as aforesaid, unless the said board has, prior to such sale, gift or exchange, given public notice in such trade journals or newspapers as it may select that the gift, exchange or sale at retail of the said medicine or food preparation would be contrary to law.
You state that a number of retail druggists have asked whether it is necessary for them, within the meaning of the above statute, to label with the prescribed label fractional parts sold from the original package by prescription; and they have pointed out the practical difficulty in carrying a stock of labels for the very large variety of patent medicines which they are obliged to sell.
It seems to me that the law requires the labeling of the container of fractional parts of the original package. The language of the act is very comprehensive, - "every package, bottle or other receptacle holding any proprietary or patent medicine." These words must be given their ordinary meaning, unless some reason appears for giving them a different meaning. If the Legislature had intended the act to apply only to original packages, it would have been easy so to limit the scope of the act. The words should also be interpreted in such a way as to carry out what appears to have been the intent of the Legislature. The most obvious and natural purpose of the act is the protection of all who are to buy the patent and proprietary medicines. It cannot have been the intent of the Legislature to protect only the druggists dealing in these medicines; and yet, if a fractional part of the original package is not to be marked, the public are no better informed as to the ingredients of what they are buying than they were before the passage of
the act, unless they take pains to ask to be shown the original package.
As to the second point, by section 6 the selling without label of patent or proprietary medicines in any quantity is made a distinct offence with a fixed penalty, and the offender is liable to a penalty upon the commission of the offence. The clause of the statute referring to prosecution after public notice refers to the sales prohibited and restricted by sections 3 and 4, which do not include and are not to be construed as connected with the sale of an unlabeled quantity.
PUBLIC OFFICER REGISTER OF DEEDS - OFFICIAL BOND.
A bond given by the register of deeds of a county to the county commissioners thereof, and running to such commissioners, does not satisfy the requirement of R. L., c. 22, § 7, that “each register shall give bond to the county for the faithful performance of his official duty, with such sureties and in such sum as the commissioners or mayor [in the county of Suffolk] respectively shall approve."
Replying to your letter, in which you ask whether it is imperative that a bond of a register of deeds run to the treasurer September 29, of the county, or whether a bond given to the county commis
sioners is sufficient, I have to inform you that the statute applicable to the matter is R. L., c. 22, § 7, which reads as follows:
Each register of deeds, except in the county of Suffolk, shall be sworn before the county commissioners and, in the county of Suffolk, before one or more of the aldermen of the city of Boston. Each register shall give bond to the county for the faithful performance of his official duty with such sureties and in such sum as the commissioners or mayor, respectively, shall approve.
It is therefore necessary that to comply with the statute the bond in question should run to the county of Dukes County, and not to either the county commissioners or the county treasurer. I therefore must advise you that all public officials should be required to give bonds strictly complying with the
provisions of the above statute, and bonds not in statutory form should not be held by the supervising authorities to be sufficient or accepted as such.
SAVINGS BANKS AUTHORIZED INVESTMENTS
Bonds, coupon notes or other evidences of indebtedness of the New York, New Haven & Hartford Railroad Company, a corporation chartered by the laws of this Commonwealth, payable more than twelve months after the date of issue and issued prior to the passage of St. 1908, c. 620, in excess of the capital stock of such railroad corporation, which do not fall within any of the exceptions set forth in St. 1906, c. 463, part II., § 66, are issued in violation of the provision of such section that "a railroad corporation, unless expressly authorized by its charter or by special law, shall not issue bonds, coupon notes or other evidences of indebtedness payable at periods of more than twelve months after the date thereof to an amount which, including the amount of all such securities previously issued and outstanding, exceeds in the whole the amount of its capital stock at the time actually paid in;" and such bonds, coupon notes or other evidences of indebtedness not being "issued according to law," within the meaning of R. L., c. 113, § 26, cl. 3, h, are not legal investments for savings banks in this Commonwealth.
You request my opinion as to whether the issue of New To the Bank York, New Haven & Hartford Railroad Company 6 per cent. debenture bonds is a legal investment for Massachusetts savings banks.
R. L., c. 113, § 26, relating to savings banks, provides:
Deposits and the income derived therefrom shall be invested only as follows:
h. In the bonds and notes of the New York, New Haven and Hartford Railroad Company issued according to law, notwithstanding the existence on the twenty-first day of March in the year eighteen hundred and ninetysix of a mortgage indebtedness not then matured upon the whole or a part of the road of said company.
This provision was first enacted in St. 1896, c. 178. I am not aware that it has ever been passed upon by our Supreme Court or by the Attorney-General.
Section 65 of part II. of chapter 463 of the Acts of 1906, which provides for the determination by the Board of Railroad Commissioners of the reasonable necessity of any proposed issue of railroad stock, bonds or notes payable at periods of more than twelve months from date, contains also a provision that:
The provisions of this section shall not require the approval of the board of railroad commissioners to the issue of capital stock or bonds, or of coupon notes or other evidences of indebtedness as aforesaid, authorized by law of this commonwealth, the proceeds of which are to be expended in another state or country, or which are to pay for borrowed money expended in another state or country.
Section 66 provides that:
A railroad corporation, unless expressly authorized by its charter or by special law, shall not issue bonds, coupon notes or other evidences of indebtedness payable at periods of more than twelve months after the date thereof to an amount which, including the amount of all such securities previously issued and outstanding, exceeds in the whole the amount of its capital stock at the time actually paid in; but this limitation shall not apply to the issue of bonds for the purpose of paying and refunding at maturity bonds lawfully issued prior to the second day of June in the year eighteen hundred and ninety-seven; nor shall it apply to such of the bonds issued or to be issued under a mortgage as are deposited to retire at or before maturity bonds or other evidences of indebtedness previously issued and outstanding at the date of such mortgage, and as do not exceed the par value of the funded or other debt so to be retired; and such corporation shall not issue the securities specified in this section unless authorized by a vote of its stockholders at a meeting called for the purpose.
The fact that the excepting clause of section 65 is omitted from section 66 seems to indicate that the latter section was intended to apply to the issue of all evidences of indebtedness, payable at periods of more than twelve months, of railroads chartered by this Commonwealth, irrespective of the purposes for which the money raised by such issue is to be expended, whether in another State or country or in this Commonwealth. Section 66 provides that the amount, including the amount of all such securities previously issued and outstanding, with cer