Resolved, That the opinion of the Attorney-General be requested on the following point of law: Whether in case of the investigation of a State official or board or the hearing of charges preferred against same, it is lawful for said official or board to employ counsel at the expense of the Commonwealth. R. L., c. 7, § 1, reads as follows: The attorney general shall appear for the commonwealth, the secretary, the treasurer and receiver general, the auditor of accounts and for state boards and commissions in all suits and other civil proceedings in which the commonwealth is a party or interested, or in which the official acts and doings of said officers are called in question, in all the courts of the commonwealth, except upon criminal recognizances and bail bonds; and in such suits and proceedings before any other tribunal when requested by the governor or by the general court or either branch thereof. All such suits and proceedings shall be prosecuted or defended by him or under his direction. . . . All legal services required by such officers, boards, commissions and commissioner of pilots for the harbor of Boston in matters relating to their official duties shall be rendered by the attorney general or under his direction. This statute put an end to the practice which previously had prevailed to some extent among State boards and commissions of employing private counsel in public matters at the expense of the Commonwealth. McQuesten v. Attorney-General, 187 Mass. 185. R. L., c. 7, § 9, provides that the Attorney-General If in his opinion the interests of the commonwealth so require, may, with the approval of the governor and council, employ additional legal assistance. The entire responsibility, therefore, for suits and proceedings, at all stages of their progress, rests upon the Attorney-General, who may, with your approval, if in his opinion the interests of the Commonwealth require, employ such additional assistance as he may deem necessary. It has been suggested that it would be improper for the Attorney-General to appear for the officers of a board or commission at an investigation before you, in which their official acts and doings were called in question, or to have any direction as to the defence of the same; but it seems that if it would be improper for the Attorney-General to appear in such a case, then it would be improper that the money of the Commonwealth should be expended for that purpose, and that such officers should be required to defend themselves without assistance from the Commonwealth. I am therefore of opinion that the officers of such boards and commissions have no right to employ private counsel at the expense of the Commonwealth in case of an investigation of charges made against them. CHARITABLE OR BENEVOLENT CORPORATIONS AUTHORITY TO INCREASE HOLDINGS OF REAL OR PERSONAL PROPERTY. Corporations specially chartered for charitable or benevolent purposes may, without express legislative authority, increase the amount of real or personal property held by them, in accordance with the provisions of R. L., c. 125, § 8, that any such corporation may hold real and personal estate to an amount not exceeding $1,500,000. Quære, as to the effect of R. L., c. 125, § 12, providing that any such corporation formed before July 27, 1874, upon compliance with the requirements of such section, may accept the preceding sections of such chapter, and thereupon "shall have the powers and privileges and shall be subject to the duties and liabilities of corporations formed under said sections." To the Combe Mercantile The committee on mercantile affairs ask my opinion as to whether Senate Bill No. 15 and House Bill No. 320 should passed, or whether the desired object can be obtained under general laws. They are similar in character and authorize the holding of additional real and personal estate by the Association for the Relief of Aged and Destitute Women in Salem and the Gwynne Temporary Home for Children. In the case of the former, its status as a charitable corporation has already been considered and established by an opinion of the AttorneyGeneral, dated Feb. 14, 1906, and, so far as appears from the evidence submitted, the Gwynne Temporary Home for Children is a similar institution, incorporated for a charitable or benevolent purpose. See Chamberlain v. Stearns, 111 Mass. 267; New England Theosophical Society v. Boston, 172 Mass. 60. Either of these institutions may, therefore, without further mittee on Affairs. 1906 March 20. legislation, increase the amount of real or personal property held by it to that specified in section 8 of chapter 125 of the Revised Laws, which is as follows: Any corporation organized under general or special laws for any of the purposes mentioned in section two and under sections thirteen to sixteen, inclusive, may hold real and personal estate to an amount not exceeding one million five hundred thousand dollars, which shall be devoted to the purposes set forth in its charter or agreement of association, and it may receive and hold, in trust or otherwise, funds received by gift or bequest to be devoted by it to such purposes. I am aware of the provisions contained in R. L., c. 125, § 12, providing that a corporation formed before the twenty-seventh day of July in the year 1874, under the provisions of any statute, for any of the purposes mentioned in section 2, may accept the provisions of the preceding sections upon compliance with the requirements of section 12, upon which "such corporation shall have the powers and privileges and be subject to the duties and liabilities of corporations formed under said sections." It does not appear that either of the corporations above referred to, although both were incorporated before 1874, has acted under this section, but I am of opinion that upon consideration of the history of this legislation it cannot be construed to affect them. Gen. Sts., c. 32, which treated of corporations of the character of those under consideration, was repealed by St. 1874, c. 375, which substantially re-enacted its provisions. It seems, however, that the Legislature, fearing that by such repeal the corporate existence of corporations organized under the repealed statute might have been terminated, enacted in St. 1875, c. 49, § 2, a provision which declared that by the act of the preceding year existing corporations were not to be affected, and further providing, lest this enactment should be ineffective, that all such corporations, however organized, might be included within the provisions of the later statute upon acceptance thereof in the manner prescribed. In United Hebrew Association v. Benshimol, 130 Mass. 325, the court held that St. 1875, c. 49, was to be construed as a continuance of St. 1874, c. 375, and in nowise affected the existence of corporations previously organized. It is contended that, as the St. of 1874 contained no reservation, it operated to destroy all corporations created under the provisions of the General Statutes; and that the explanatory declaration in the statute of the next year could not restore their rights. But it is plain that the St. of 1874 was not passed for the purpose of affecting the rights of corporations already organized. The repeal of a general corporation law cannot be construed, in the absence of express provisions, as intended to repeal the charters of corporations formed under it, especially where the manifest purpose of the repealing act is to substitute a new law, extending the provisions of the old, and perfecting its details, but not changing its general policy. It is a familiar rule of construction that when statutes are repealed by acts which substantially retain the provisions of the old laws, the latter are held not to have been destroyed or interrupted in their binding force. "In practical operation and effect they are rather to be considered as a continuance and modification of old laws than as an abrogation of those old, and the re-enactment of new ones." Shaw, C. J., in Wright v. Oakley, 5 Met. 400, 406. Notwithstanding this decision, the section, although enacted for a specific purpose, has been retained upon the statute books. Its express language purports to give to a corporation acting under its provisions only what such corporation already enjoyed, viz., the powers and privileges and the duties and liabilities of corporations organized under the provisions of law previously in force. This they already had, and for that reason I am of opinion that the present question is not in anywise affected by the provisions of section 12. If, however, any doubt may arise upon this point, it is certainly true that if otherwise entitled to be included under the provisions of chapter 125, the acceptance by any society of the provisions of such act, as prescribed in section 12, would entitle such society to all the rights and privileges and subject it to all the duties of that chapter, without action upon the part of the Legislature. In any event, therefore, it would seem that no legislation is necessary in the case of the two charitable organizations above referred to. To the Super- Moths. 1906 March 22. GYPSY AND BROWN-TAIL MOTHS-OWNER OF REAL ESTATE The word "lands" as used in St. 1905, c. 381, § 6, providing that where the owner or owners of real estate fail to destroy the eggs, pupæ or nests of the gypsy or brown-tail moths, the city or town within which such real estate is situated "shall, subject to the approval of said superintendent, destroy the same, and the amount actually expended thereon, not exceeding one half of one per cent of the assessed valuation of said lands, . . . shall be assessed upon said lands," includes any buildings which may have been erected thereon. My opinion is requested by you on the construction to be given the portion of paragraph 3 of section 6 of chapter 381, Acts of 1905, which reads as follows: . If the owner or owners shall fail to destroy such eggs, pupæ or nests in accordance with the requirements of the said notice, then the city or town, acting by the public officer or board, .. shall, subject to the approval of the said superintendent, destroy the same, and the amount actually expended thereon, not exceeding one half of one per cent of the assessed valuation of said lands, as heretofore specified in this section, shall be assessed upon said lands. You desire to be informed whether the word “lands” as used in this section is to be interpreted as including or excluding the buildings thereon. The following statutes may prove of assist ance. R. L., c. 8, § 5, provides that: In construing statutes the following words shall have the meaning herein given, unless a contrary intention clearly appears: Eighth, The words "land," "lands" and "real estate" shall include lands, tenements and hereditaments, and all rights thereto and interests therein. R. L., c. 12, § 3, provides that: Real estate for the purpose of taxation shall include not only all land within the commonwealth but also all buildings and other things erected on or affixed to the same. |