cities thereof and the selection of persons to be employed as laborers or otherwise in the service of the commonwealth and said several cities" (section 6), under rules prepared by the commission and approved by the Governor and Council, which include The classification of the positions and employments to be filled. Open competitive and other examinations to test the practical fitness of applicants. The filling of vacancies in and the selection of persons for public positions and employments in accordance with the results of such examinations, or in the order of application, or otherwise. Promotions, if practicable, on the basis of ascertained merit in the examination and seniority of service. A period of probation before an appointment or employment is made permanent. Preference to veterans in appointment and promotion. It is clear that in the performance of the duties required by the provisions of St. 1909, c. 486, § 10, hereinbefore quoted, the commission act in a special and limited capacity, under the authority of that section alone. They are not to be controlled by the general provisions relating to civil service, which are to be found in R. L., c. 19, and in the rules formulated thereunder. (See section 9.) The provisions of R. L., c. 19, § 5, therefore, have no application to the proceedings of the commission under St. 1909, c. 486, § 10. (2) R. L., c. 35, § 5, defined the words "public records" as follows: In construing the provisions of this chapter and other statutes, the words "public records" shall, unless a contrary intention clearly appears, mean any written or printed book or paper, any map or plan of the commonwealth or of any county, city or town which is the property thereof and in or on which any entry has been made or is required to be made by law, or which any officer or employee of the commonwealth or of a county, city or town has received or is required to receive for filing, and any book, paper, record or copy mentioned in the six following sections. The word "record" shall, in this chapter, mean any written or printed book, paper, map or plan. Speaking of this section, in an opinion dated Sept. 22, 1902 (2 Op. Atty.-Gen. 381), the Attorney-General stated that This legislative definition cannot be held to include within its intention every paper which an officer of the Commonwealth receives and files. It must be limited to such as he is required by law to so receive for filing. Any other construction must be prejudicial to the rights and interests of the Commonwealth or its officers, and, indeed, of parties or persons making communications with such officers. And see ante, p. 136. This section has been construed and this view has been confirmed in the case of Round v. Police Commissioner, 197 Mass. 218, where, at page 220, the court say: The petitioner contends that such a paper, returned to the Licensing Board, is a public record under the R. L., c. 35, § 5, because it is a paper which an officer of the city has received or is required to receive for filing. An examination of this section shows that it relates to books, papers and maps which are intended for the use of the public. We are of opinion that the returns by pawnbrokers are not papers received for filing. There are statutes which require that certain papers be filed in the office of the city or town clerk, or in some registry, for inspection by all persons interested. Such papers are "received for filing" within the meaning of the statute; but the statute as to returns by pawnbrokers makes no provision for filing. The licensing boards may preserve them in such a way as they choose. While the facts in the two cases are not identical, I am bound to follow the construction therein declared. To make any letter, paper or document in the possession of the Civil Service Commission a "public document" within the meaning of R. L., c. 35, § 5, therefore, the commission must have received or must be required to receive such letter, paper or document for filing under the terms of some particular statute. No such requirement is to be found in St. 1909, c. 486, § 10. The commission are broadly authorized to "make a careful inquiry into the qualifications of the nominee under such rules as they may, with the consent of the governor and council, establish," and, if their conclusion is favorable to such nominee, they are required to file with the city clerk a certificate to that effect. This inquiry is to be governed only by their discretion and by such rules as, with the consent of the Governor and Council, they may adopt for their own guidance. The rules so far adopted, which I have already quoted, do not in my opinion require the filing of any letter, paper or document by the commission. They do, in rule 3, require the mayor to forward to the commission "any and all correspondence, papers, petitions, recommendations and protests in his possession relating to the appointee," and they provide for the return of the same, after the commission have reached a decision, but this provision has no bearing upon like documents addressed to and received by the commission in the course of their inquiry, and, so far as it is material at all, suggests an intent that such matters should not be retained and filed by the commission. I am therefore constrained to conclude that the letters and other memoranda to which your inquiry is directed are not received for filing, and are not required to be filed, by any law which has been called to my attention. They are received by the commission in connection with the specific duties required by the provisions of St. 1909, c. 486, § 10, for the purpose of aiding the commission in the performance of those duties. The commission are not required to receive or to retain and preserve them; and they are retained and preserved, if at all, only for the information or convenience of the commission. Since they are not received and are not required to be received for filing, within the meaning of R. L., c. 35, § 5, they are not public records as defined in that section. (3) A member of the Legislature, as such, has no greater right to inspect letters or papers which are in the custody of the commission, but are not public records, than has any other member of the public, and his individual rights are to be measured by those of the public generally. To the VOLUNTEER MILITIA - ARMORY COMMISSION -CONSTRUCTION The duty of the armory commission, under the provision of St. 1908, c. 604, § 133, Relative to the construction of St. 1908, c. 604, § 133, as amended by St. 1909, c. 323, § 1, which, so far as material, is as follows: The armory commissioners shall rebuild, remodel or repair armories of the first class which have been injured or destroyed by fire, and may reconstruct, remodel, enlarge or otherwise improve existing state armories, if in their judgment the needs of the service demand it, subject to the approval of the commander-in-chief, and, in addition, shall construct armories, not exceeding three yearly, until the volunteer militia shall be provided with adequate quarters. you submit the following questions for my opinion: 1. Must the armory commission build any armories? 3. Must they build three each year? Assuming that to the first and second questions should be added the word "yearly," I understand your inquiry is in substance to require my opinion upon the duties of the commissioners with respect to the construction of armories in any given year. The duty of the commission seems to be plain. They are to construct armories . . . until the volunteer militia shall be provided with adequate quarters." The provision that they shall not construct more than three of such armories yearly is a limitation upon this duty. Except for this limitation the matter is in the discretion of the commission, and if they in good faith construct armories as rapidly as possible for the accommodation of the volunteer militia they are not required in any one year to begin the construction of either one, two or three new armories. I am of the opinion that the limitation above referred to means that the commission shall not have under construction in any one year more than three such armories. LICENSE KEEPER OF HOSPITAL FOR CARE OF INSANE AND Under the provisions of St. 1909, c. 504, § 24, that "the governor and council may, upon the recommendation of the state board of insanity, license any suitable person to establish and keep a hospital or private house for the care and treatment of the insane, epileptic, feeble-minded, and persons addicted to the intemperate use of narcotics and stimulants," a physician who is employed by the owner or owners of such hospital or private house as resident physician in charge, or who is on the staff of consulting physicians connected therewith, is not a suitable person to receive such license. Board of You have requested my opinion in regard to the provisions To the State of section 24 of chapter 504 of the Acts of the year 1909, Insanity. which is as follows: The governor and council may, upon the recommendation of the state board of insanity, license any suitable person to establish and keep a hospital or private house for the care and treatment of the insane, epileptic, feeble-minded, and persons addicted to the intemperate use of narcotics or stimulants, and may at any time revoke such license. No such recommendation shall be made unless the said board is satisfied that the person applying therefor is a duly qualified physician, as provided in section. thirty-two, and has had practical experience in the care and treatment of such patients. Any person owning or maintaining such a hospital or private house on the date of the passage of this act shall be entitled to maintain the same under the provisions of law in force at that time, except that every such hospital or house shall be subject to the visitation and supervision of the state board of insanity. Your specific inquiries are as follows: 1. Is a physician, who is employed by the owner or owners as resident physician in charge, on a salary or for a share in the profits, a proper person to be granted a license under this section? 1911 February 8. |