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To the
Civil Service
Commission.

1908 December 4.

The obvious intent of the statute is that the hunter shall not be able to get a greater advantage over the game which he is pursuing than he is able to obtain without the aid of a power boat or similar mechanical means.

In the case stated, the pursuit of the birds was begun when the hunter started from home; and, although the hunter has brought his power boat to a stop before shooting, and perhaps has completed the pursuit of the game by row boat, he has, nevertheless, pursued the birds with or by the aid of the power boat, and is therefore within the prohibitions of the statute.

CIVIL SERVICE EXEMPTION HEADS OF PRINCIPAL DEPART

MENTS OF A CITY CITY BOOKKEEPER.

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The office of city bookkeeper, established by the charter of the city of North Adams (St. 1895, c. 148), does not constitute the incumbent the head of any principal department in the governmental organization of such city, and, in the absence of other grounds for exemption, is within the operation of civil service rule VII., class 4, which includes "bookkeepers and persons doing similar work in the service of the Commonwealth and of any city thereof."

You inquire whether the office of city bookkeeper, established by the city charter of the city of North Adams (St. 1895, c. 148, §34), comes within civil service rule VII., class 4, "bookkeepers and persons doing similar work in the service of the Commonwealth and of any city thereof." You cite, as applicable to the office of bookkeeper, the following provisions, to be found in the city charter of North Adams, viz.:

SECTION 34. There shall be the following administrative officers, who shall be appointed by the mayor and who shall perform the duties by law and hereinafter prescribed for them, respectively, and such further duties not inconsistent with the nature of their respective offices as the city council may prescribe. . . . VIII. A city bookkeeper, who shall also be clerk of the board of public works, and shall keep the accounts of all the departments as herein otherwise provided. . .

SECTION 43. All city officers not hereinbefore mentioned shall perform such duties as are or may be from time to time prescribed by law, and such other duties, not inconsistent herewith or with general laws, as the council may from time to time prescribe.

SECTION 44. The administrative officers and boards above-named in this title, and all administrative officers and boards hereafter established by the city council and not coming within the department of any officer or board so above-named, shall have the power, except as herein otherwise provided, to appoint or employ and to remove or discharge, all officers, clerks and employees in their respective departments. Such appointments shall not be for any specified term but shall hold good until removal or discharge....

A city bookkeeper is obviously within the scope of the civil service law and rules, unless he is exempted by section 9 of chapter 19 of the Revised Laws, which provides as follows:

Judicial officers and officers elected by the people or by a city council, or whose appointment is subject to confirmation by the executive council or city council of any city, officers elected by either branch of the general court and the appointees of such officers, heads of principal departments of the commonwealth or of a city, the employees of the treasurer and receiver-general, of the board of commissioners of savings banks, and of the treasurer and collector of taxes of any city, two employees of the city clerk of any city, teachers of the public schools, the secretaries and confidential stenographers of the governor, or of the mayor of any city, police and fire commissioners and chief marshals, or chiefs of police and fire departments, shall not be affected as to their selection or appointment by any rules made as aforesaid; but, with the above exception, such rules shall apply to members of police and fire departments.

Although it is not specifically so stated, I assume that the city bookkeeper is not an officer whose appointment is subject to confirmation by the city council of North Adams, and that if exempted at all it is because he comes within the provisions exempting the heads of principal departments of a city. A department is defined to be "a distinct part of a governmental organization; a branch of government." Thus, in the Constitution of Massachusetts, article 30 of the Bill of Rights, the word "department" is applied to the legislative, judicial and executive powers. A principal department of a city is one of the several divisions of governmental organization into which the government of a city readily separates itself. Broadly speaking, those departments would be the executive, as represented by the mayor; the legislative, as represented by the city

council; and the administrative, as represented by administrative officers appointed by the mayor or elected by the city council. Undoubtedly, however, the statute had particularly in view certain principal and easily recognized divisions in the administrative department of a city; such as, for instance, the division relating to public works, the division including the care and maintenance of the poor, and certain other distinct fields for administrative activity. See Attorney-General v. Trehy, 178 Mass. 186.

Upon this definition it is obvious that the office of city bookkeeper, as established by the charter of the city of North Adams does not constitute the incumbent the head of any principal department of the governmental organization of the city, and, in the absence of other grounds for exemption, such officer would be subject to the civil service law and rules.

INSPECTION OF BUILDINGS - SANITATION AND VENTILATION
INSPECTION DEPARTMENT OF DISTRICT POLICE.

Under the provisions of St. 1907, c. 537, § 5, and St. 1908, c. 369, the inspection department of the Massachusetts District Police has no jurisdiction over matters of sanitation or ventilation in buildings subject to inspection, other than to order changes in construction for ventilating or sanitary purposes, when the necessity therefor is reported to such department by the State Board of Health.

To the
Chief of the

By your letter of November 6 you require my opinion upon Massachusetts the question whether or not, under the existing laws, the in

Police.

1908 December 11.

spectors of factories and public buildings in the inspection department of the District Police are authorized or required to take any independent and initial action with respect to the inspection of ventilation and sanitary appliances in public buildings.

Under the provisions of R. L., c. 104, § 41, and c. 106, §§ 41-45, inclusive, all jurisdiction with respect to matters of sanitation and ventilation in public buildings was vested in the factory inspectors of the District Police. This authority was, however, specifically repealed by St. 1907, c. 537, § 5, which is as follows:

The state inspectors of health shall, under the direction of the state board of health and in place of the inspection department of the district police, enforce the provisions of section forty-one of chapter one hundred and four of the Revised Laws so far as said section provides that factories shall be well ventilated and kept clean, sections forty-one, forty-four and forty-seven to sixty-one, inclusive, of chapter one hundred and six of the Revised Laws, chapter three hundred and twenty-two of the acts of the year nineteen hundred and two, chapter four hundred and seventyfive of the acts of the year nineteen hundred and three, chapter two hundred and thirty-eight of the acts of the year nineteen hundred and five, and chapter two hundred and fifty of the acts of the year nineteen hundred and six; and the powers and duties heretofore conferred and imposed upon the members of said inspection department of the district police by section eight of chapter one hundred and eight of the Revised Laws in respect to the foregoing sections and acts, and in respect to all acts in amendment thereof or in addition thereto, and in respect to any other laws, are hereby conferred and imposed upon said state inspectors of health or such other officers as the state board of health may from time to time appoint: provided, however, that neither said board of health nor any inspector thereof shall have authority to require structural alterations to be made in buildings, but shall report the necessity therefor to the inspection department of the district police. Wherever in said provisions of law the words "inspector" or "inspectors" of factories and public buildings, "inspection department of the district police," "inspector" or "inspectors" of the district police, "district police," "factory inspector" or "inspectors," and "member" or "members" of the district police occur, they shall be taken to mean state inspector or inspectors of health. Wherever the words "chief of the district police" occur, they shall be taken to mean the state board of health.

While this section is inartificial and in some respects obscure as to construction, it is not necessary for the purposes of this inquiry to go beyond the express repeal of the sections of chapters 104 and 106 of the Revised Laws, above quoted. Upon the approval of this act, the duties and powers theretofore vested in the members of the inspection department of the District Police were transferred to and imposed upon the State inspectors of health, or such other officers as the State Board of Health might appoint.

St. 1907, c. 537, was in effect amended by St. 1908, c. 389, entitled "An Act to define the powers and duties of the in

spectors of factories and public buildings." Such inspectors were given the power to enter any building, structure or enclosure, for the purpose of examining the methods of prevention of fire, means of exits and means of protection against accidents; and they were further authorized to make investigations as to the employment of children, young persons and women, “except concerning health and the influence of occupation upon health." They may also enter any public building and public or private institution or schoolhouse, church, theatre, or other place of public resort, and make such investigations and order such structural or other changes as may be necessary in connection with the construction, occupation and heating appliances and conditions, but they are expressly forbidden to order changes for ventilating or sanitary purposes. The section then proceeds: "provided, however, that they may order structural changes for any purpose whenever the necessity therefor has been reported in accordance with the provisions of section five of chapter five hundred and thirty-seven of the acts of the year nineteen hundred and seven." The provision of St. 1907, c. 537, § 5, referred to, relates to notice from the State Board of Health, and has already been quoted.

It results, from this proviso, that, while the inspectors of factories have no powers to investigate, inspect or upon their own initiative order changes in methods of ventilation in buildings subject to their jurisdiction, it becomes their duty, upon report of the State Board of Health, to order such changes as may be deemed proper in the premises.

From a consideration of the statutes above referred to, it clearly follows that the only connection with matters pertaining to sanitation or ventilation which the inspection department of the Massachusetts District Police still retain is the single duty to order structural changes in buildings for ventilating and sanitary purposes when the necessity therefor is reported to the inspection department of the District Police by the State Board of Health.

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