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CORPORATION - PURPOSE
The Commissioner of Corporations has no authority to approve the incorporation of certain persons for the purchase of waste, undeveloped or partially developed lands with a view to their development and sale, such purpose being forbidden by St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, § 1, that "three or more persons may associate themselves . . . with the intention of forming a corporation under the general laws for any lawful purpose . . . except to buy and sell real estate."
In a letter of Jan. 21, 1909, you have requested my opinion To the as to whether or not you have authority to approve the incor- of Corporaporation of certain persons for purposes as follows:
tions. 1909 January 21.
To buy and make waste, undeveloped and partially developed land into useful property; to survey and divide the same into building lots and roads, to build factories thereon and sell, or develop a manufacturing business in the same, or improve it in any other way; to accept pay therefor in stocks, or mortgages. To sell houselots for cash, or on land contracts, or bonds. To establish parks and pleasure grounds on the same, and to make, vend, buy and sell any and all kings of manufactured articles and to do any and all other things necessary or convenient to carry out the general purposes specified, so far as the same shall not conflict with the laws of the Commonwealth.
The provision of the statute upon the subject is clear and definite. St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, provides as follows:
Three or more persons may associate themselves by a written agreement of association with the intention of forming a corporation under the general laws for any lawful purpose which is not excluded by the provision of section one except to buy and sell real estate.
Among the purposes of the proposed corporation is the purpose to buy and sell real estate, which is obviously not a purpose for which incorporation is permitted by the statute.
In my opinion, therefore, you are quite correct in your ruling to the effect that you had no authority to approve of the incorporation proposed for the purposes described.
To the State Board of Health.
1909 January 22.
BOARDS OF HEALTH-CAUSES OF SICKNESS CONTAGIOUS
A local board of health may, under its general authority conferred by R. L., c. 75, if in fact a contagious disease as a cause of sickness is found in a school, or if such board has reasonable and proper grounds for believing that a contagious disease may be found therein, enter such school and make all necessary examinations in the premises, and, if pupils suffering from contagious diseases dangerous to the public health are found, may remove such pupils to a hospital or quarantine station, but, in the absence of any reasonable grounds for believing that contagious disease existed in a school, such board or its agents would have no authority to enter therein for the purpose of making an examination of the physical condition of the pupils in attendance.
State inspectors of health, acting under their general powers as defined in St. 1907,
c. 537, § 3, providing that such inspectors "shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district," would not be authorized to enter a school or hospital for the purpose of making a physical examination of individual pupils or patients.
You require my opinion upon the question "whether a local board of health, or its agents, acting under its general powers in investigating causes of sickness within its town and removing or preventing the same, has authority to enter public schools for the purpose of detecting causes of sickness, and, in case of discovery of infection in a pupil, to exclude such pupil from the school, and to make such further quarantine regulations as it may in case of disease in a house for the protection of the public."
I assume that your inquiry is directed to the exercise by local boards of health of the general powers conferred upon such boards, with respect to causes of sickness, by R. L., c. 75, § 65, which is as follows:
The board of health shall examine into all nuisances, sources of filth and causes of sickness within its town, or on board of vessels within the harbor of such town, which may in its opinion be injurious to the public health, shall destroy, remove or prevent the same as the case may require and shall make regulations for the public health and safety relative thereto and relative to articles which are capable of containing or conveying infection or contagion or of creating sickness which are brought into or conveyed from its town, or into or from any vessel. Whoever violates any such regulation shall forfeit not more than one hundred dollars.
and that your inquiry is further limited to the authority of a local board of health, where contagious diseases have been found actually to exist, to enter a school and discover whether or not such disease is actually present among the pupils attending such school. If it be further assumed that entries into such school for purposes involving an examination of the physical condition of the scholars therein are based upon reasonable grounds for believing that cases of sickness, which are in fact and effect causes of sickness, exist in such school, I am of opinion that local boards of health have the necessary power in the premises. Where sources of sickness actually exist, the powers of local boards of health are broad and comprehensive. See Belmont v. New England Brick Co., 190 Mass. 442; Stone v. Heath, 179 Mass. 385. And such powers are not weakened where the causes of sickness are cases of contagious disease so numerous as to form an epidemic. See Oliver v. Gale, 182 Mass. 39, 40. Chapter 75 of the Revised Laws itself contains provisions for dealing with diseases dangerous to the public health, and gives to a local board of health the power to remove or to quarantine a person suffering from a disease of that character. See sections 42, 43, 44 and 45.
It follows, therefore, that if in fact contagious disease as a cause of sickness is found in a school, or if a local board of health has reasonable and proper grounds for believing that such contagious disease may be found therein, such board has authority to enter such school and to make all necessary examinations in the premises, and if pupils suffering from contagious diseases dangerous to the public health are found therein, to remove them to a hospital or quarantine station, in accordance with the provisions of section 42 above referred to. Upon the other hand, however, I am of opinion that a local board of health has no greater powers with respect to investigating generally the state of health of the pupils in a school than such board would have with respect to any other individual; and that, in the absence of any reasonable ground to believe that contagious disease as a cause of sickness exists in any school, such board of health, or its agents, would have no authority to
enter upon the premises for the purpose of making an examination of the physical condition of the pupils in attendance at such school.
Your communication further inquires whether State inspectors of health, acting under their general powers as defined in St. 1907, c. 537, § 3, which provides that each State inspector of health "shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district," have authority to enter schoolhouses and hospitals for the purpose of obtaining such information. The State inspectors of health are appointed under the provisions of St. 1907, c. 537, which provides in section 3 that:
Every state inspector of health shall inform himself respecting the sanitary condition of his district and concerning all influences dangerous to the public health or threatening to affect the same; he shall gather all information possible concerning the prevalence of tuberculosis and other diseases dangerous to the public health within his district, shall disseminate knowledge as to the best methods of preventing the spread of such diseases, and shall take such steps as, after consultation with the state board of health and the local state authorities, shall be deemed advisable for their eradication; he shall inform himself concerning the health of all minors employed in factories within his district, and, whenever he may deem it advisable or necessary, he shall call the ill health or physical unfitness of any minor to the attention of his or her parents or employers and of the state board of health.
You do not, in this question, state the character of the information of which the health inspector is assumed to be in search. If such inspector desires to enter a school or hospital for the purpose of making a physical examination of individual pupils or patients, I am of opinion that the statute above quoted would not authorize him so to do. He has, however, the same right to enter a hospital or school that is possessed by any other individual in search of information, independent of statute. If the statute above quoted confers upon such inspector any right of entry into hospitals or schools, such right or authority must be found in the first clause of section 3, and
must be for the purpose of enabling the inspector to inform himself concerning the sanitary conditions of his district, which conceivably might include the sanitary condition or method of construction of either a hospital or a school, and such other information of like nature as might be deemed necessary or important. Upon the other hand, if the information which he seeks is to be gained by an examination of persons or of records of case in the custody of a hospital or school, or other similar information, I am of opinion that the statute does not contemplate the acquisition thereof as a matter of right, and does not confer authority upon the inspector to enter either a hospital or a school for any such purpose.
BOSTON & MAINE RAILROAD — EXTENSION OF LINE- CON-
The ownership and control of the Portsmouth Street Railway and the purchase of the Eastern Railroad Company, both corporations of the State of New Hampshire, by the Boston & Maine Railroad, were duly authorized by the Legislature of this Commonwealth, and such acquisition and control do not render the charter of the Boston & Maine Railroad liable to forfeiture under the provision of St. 1906, c. 463, part II., § 47, that "if a railroad corporation owning a railroad in this commonwealth and consolidated with a corporation owning a railroad in another state . . without authority of the general court, extends its line of railroad, or consolidates with any other corpora
tion, . . . the charter and franchise of such corporation shall be subject to
The acquisition and control of the Concord Street Railway and the extension of its line from Concord to Manchester, by the Concord & Montreal Railroad Company, was an acquisition and extension of a New Hampshire corporation of its own line, under proper authority from the State of New Hampshire, and such acquisition and extension do not render liable to forfeiture under the provision of law above cited the charter of the Boston & Maine Railroad, which operates the Concord & Montreal Railroad under a lease authorized by the Legislature of this Commonwealth.
On January 26 an order of the tenor following was adopted To the by the Honorable Senate:
1909 February 16.
Ordered, That the Attorney-General be requested to inform the Senate whether in his opinion the Boston & Maine Railroad Company, or any other railroad corporation owning a railroad in the Commonwealth and consolidated with a railroad in another State, has subjected itself to the