should not be deducted from the value of the shares constituting the capital stock of the corporation. The provisions of the codification, which took effect on the thirtieth day after June 12, 1909 (R. L., c. 8, § 1), are to be construed as continuations of existing statutes (section 26). Such codification is not to be presumed to have changed the law unless the intention clearly appears. Wright v. Dresser, 140 Mass. 147, 149. The commission which reported the codification expressly disclaim any intention to change the law (report of the Commission on Taxation, January, 1908, pp. 12, 79), and the same construction can reasonably be given to the law as codified as was given to the earlier law. It is, therefore, unnecessary for me to express an opinion as to which law governs, since, in my judgment, under either law the value of the stocks and bonds referred to is not to be deducted. To the Bank CORPORATION NAME OR TITLE CONTAINING THE WORDS "BANK" OR "BANKING." The provisions of St. 1909, c. 491, § 4, amending St. 1908, c. 590, § 16, that no person, partnership, corporation or association, except co-operative banks, savings banks and trust companies incorporated under the laws of this Commonwealth, and such foreign banking corporations as were doing business therein and were subject to the examination or supervision of the Bank Commissioner on June 1, 1906, should thereafter "transact business under any name or title which contains the word 'bank' or 'banking,' as descriptive of said business," are applicable to a corporation organized prior to the passage of such act. I have your letter of the 19th inst., in which you request my opinion as to whether or not it is in violation of chapter 491 of the Acts of 1909 for any corporation chartered by this Commonwealth prior to the passage of said act to continue to use the words "bank" or "banking" in connection with its business. Your reference is to section 4 of the act cited, which amends St. 1908, c. 590, § 16, by adding at the end thereof the words: "Nor shall any person, partnership, corporation or association except co-operative banks incorporated under the laws of this commonwealth and corporations described in the first sentence of this section hereafter transact business under any name or title which contains the words 'bank' or 'banking,' as descriptive of said business." The corporations described in the first sentence of the section are "savings banks and trust companies incorporated under the laws of this commonwealth," and "such foreign banking corporations as were doing business in this commonwealth and were subject to examination or supervision of the commissioner on June first, nineteen hundred and six." This statute is in the nature of a police regulation for the prevention of fraud. Its purpose is evidently to prevent persons, partnerships, corporations and associations other than those under the supervision of the Bank Commissioner from holding themselves out as banks or banking institutions. It is intended that any one dealing with a corporation which transacts business under a name or title containing the words "bank" or "banking" shall have the assurance that he is safeguarded in such dealing by provisions of law and by State supervision. This purpose wholly fails if the prohibition in the statute under consideration be construed as not applying to corporations formed prior to its enactment. The language of the statute, apart from other considerations, indicates that the Legislature meant that the prohibition should apply to corporations, whenever formed. If the Legislature had intended it to apply only to corporations formed after its enactment, it could readily have said so. If this had been the intention, the prohibition, in the case of corporations, would naturally have been against incorporation rather than against the transaction of business under such name or title. The prohibition, as applied to corporations, is the same as applied to persons, yet no one would suggest that the prohibition as to persons applied only to those commencing business after the passage of the act. The history of the statute, so far as it is of any assistance, leads to the same conclusion. The statute was passed at the instance of the Bank Commissioner, who recommended legislation prohibiting the doing of business under such name or title "by organizations not incorporated under banking or trust company laws of this Commonwealth." There is here no suggestion of a limitation to corporations afterward formed. The hardship caused by the statute, construed in this manner, is not unreasonably severe. A change in the name of a corporation may readily be effected. See St. 1903, c. 437, § 40. Of course the name has a value which would be destroyed by a change, but to require a change in name imposes no greater hardship upon the corporation than upon a person, partnership or association. At any rate, the hardship is no greater than the Legislature may properly impose under a police regulation. No constitutional rights are invaded. These considerations lead me to the conclusion which I have stated, — that the prohibition in the statute applies to the corporations not expressly excepted therefrom, regardless of the time of formation. INSANE PERSON GUARDIAN PETITION TO SELL REAL ESTATE NOTICE. To the State November 1. 66 Under the provisions of St. 1909, c. 504, § 102, that upon a petition of a guardian for license to sell property of a spendthrift or of an insane person a license to sell shall not be granted to such guardian unless 'seven days' notice of the petition therefor has been given to the overseers of the poor of the city or town in which the spendthrift resides, or to the state board of insanity in the case of an insane person," such notice, in the case of an insane person, is to be given only to the State Board of Insanity. R. L., c. 145, § 41, providing that a conservator shall give bond as required of guardians of insane persons, and making all provisions of law relative to the management, sale or mortgage of the property of insane persons applicable to such conservator, is not repealed by St. 1909, c. 504, §§ 99-102, inclusive, providing for the appointment of guardians for insane persons and spendthrifts, and is to be construed in connection with such statutes. You have requested my opinion as to the construction of St. 1909, c. 504, §§ 99, 100, 101 and 102, with reference to the following questions: First: must notice of guardian's petition for license to sell property of an insane person be given only to the overseers of the poor of the city or town in which said insane person resides, or to the said overseers and to the State Board of Insanity or only to the State Board of Insanity? Second: what effect does chapter 504, Acts of 1909, sections 99 to 102 inclusive, have upon Revised Laws, chapter 145, section 41, in regard to notices to be sent to the Board of Insanity? The sections of the statute referred to are as follows: SECTION 99. If the relatives or friends of an insane person, or the mayor and aldermen of a city or the selectmen of a town in which he is an inhabitant or resident, or the state board of insanity, apply to the probate court to have a guardian appointed for him, the court shall cause not less than seven days' notice of the time and place appointed for the hearing to be given to him and to the state board of insanity, except that the court may, for cause shown, direct that a shorter notice be given to him and to the said board; and if after a hearing the court finds that he is incapable of taking care of himself, it shall appoint a guardian of his person and estate. A copy of such appointment shall be sent by mail by the register to the said board. If in the opinion of the court additional medical testimony as to the mental condition of the person alleged to be insane is desirable, it may require such person to submit to examination, and may appoint one or more physicians, expert in insanity, to examine such person and report their conclusions to the court. Reasonable expense incurred in such examination, shall be paid out of the estate of such person, or by the county, as may be determined by the court. SECTION 100. Upon the petition of the mayor of a city, the selectmen of a town, the overseers of the poor of a city or town, the state board of insanity, or other person in interest, the court may, if it finds that the welfare of a minor, insane person, or spendthrift requires the immediate appointment of a temporary guardian of his person and estate, appoint a temporary guardian of such minor, insane person, or spendthrift, with or without notice, and may in like manner remove or discharge him or terminate the trust. A temporary guardian may proceed and continue in the execution of his duties, notwithstanding an appeal from the decree appointing him, until it is otherwise ordered by the supreme judicial court, or until the appointment of a permanent guardian, or until the trust is otherwise legally terminated. SECTION 101. No final account or discharge of a guardian of an insane person shall be allowed under the provisions of chapter one hundred and forty-five of the Revised Laws, unless at least seven days' notice of the petition therefor has been given to the state board of insanity. SECTION 102. A license to sell shall not be granted to the guardian of a spendthrift who resides in this commonwealth, or of an insane person, unless seven days' notice of the petition therefor has been given to the overseers of the poor of the city or town in which the spendthrift resides, or to the state board of insanity in the case of an insane person. Such notice may be served upon any one of said overseers or board. In my opinion, the statute, in section 102, provides that notice of a guardian's petition to sell property of an insane person who resides in this Commonwealth shall be given only to the State Board of Insanity. The provision as to notice to the overseers of the poor applies only to the case of a spendthrift. The language of the act seems to me clear, and the construction indicated is in accord with the general purpose of the act, to bring all matters relative to the care and support of the insane into the hands of State officials. In reply to the second question, my opinion is that since R. L., c. 145, § 41, has been neither repealed nor amended, it is to be construed as still in force and to be read with the statute above quoted. R. L., c. 145, § 41, is as follows: Such conservator shall give bond as is required of guardians of insane persons, and all provisions of law relative to the management, sale or mortgage of the property of insane persons shall apply to such conservator. Since St. 1909, c. 504, contains the present provisions of law relative to the management, sale or mortgage of the property of insane persons, the provisions of sections 99-102 are applicable to the cases of persons for whose property conservators have been appointed, and notice of petitions for the disposition of property in the hands of conservators must be given to the State Board of Insanity. While, however, this is in my opinion clearly the effect of the statutes as they stand, it would seem that the situation may have been the result of an oversight upon the part of the Legislature. St. 1909, c. 504, expressly provides that in the case of a spendthrift the guardian's notice shall be given to the overseers of the poor of the city or town where the spendthrift resides. The position of an aged person whose property is in the hands of a conservator is more nearly analogous to that of a spendthrift than that of an insane person, and as a matter of administration it would seem that the law should be so amended as to require the conservator to give notice of his petitions to the overseers of the poor rather than to the State Board of Insanity. |