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table; and the annual salaries of the clerk of the courts, county commissioners and county treasurer, in full for all services performed by them, for each county in a class, shall be as therein specified, payable by the said county in monthly instalments.
Then follow nine classes, A, B, C, D, E, F, G, H and I, of which classes A and D may be taken as examples.
Class A. Counties having a population of less than fifteen thousand, to wit, the counties of Nantucket and Dukes County; salaries: - Clerk of the courts, six hundred dollars; commissioners (Nantucket, none), four hundred dollars; treasurer (Nantucket, none), three hundred dollars.
Class D. Counties having a population of from sixty thousand to ninety thousand, to wit, none; salaries:- Clerk of the courts, twentyfour hundred dollars; commissioners, twenty-two hundred dollars; treasurer, eleven hundred dollars.
The precise question upon which you desire to be advised is whether or not the county treasurer, upon being satisfied by official information of the result of the latest census, is authorized to pay to the clerks of the courts, the county commissioners and to himself as county treasurer, salaries under the next higher class in any case where the census shows that a county has gained sufficiently in population to be taken from the class below and placed therein.
The act to which you refer forms one of five statutes passed in 1904; the other four being chapter 452, "An Act to establish the salaries of registers of deeds and assistant registers of deeds;" chapter 453, "An Act to establish the salaries of the justices, clerks and assistant clerks of certain police, district and municipal courts;" chapter 454, "An Act to establish the salaries of the chief justice, associate justices, clerks and assistant clerks of the municipal court of the city of Boston;" and chapter 455, "An Act to establish the salaries of the judges, registers and assistant registers of probate." Chapter 452, relative to the salaries of registers of deeds and assistant registers of deeds, provides, in section 1, that "registers of deeds shall receive annual salaries based upon the following scale," and
establishes three classes, A, B, and C. In section 2 it was provided that
The salaries of registers of deeds and assistant registers of deeds hereinbefore specified shall be readjusted in January, nineteen hundred and six, and every five years thereafter, upon the basis of the average yearly receipts of the respective registries for the five preceding years, in accordance with the classification set forth in section one.
Chapter 455 was substantially similar in form, providing, in section 1, that
Judges, registers and assistant registers of probate shall receive from the treasury of the commonwealth annual salaries based upon the following scale. If the amount in any case comprised in the first two classes exceeds an even hundred number of dollars by a sum less than fifty dollars, the excess shall be deducted; and if the excess is fifty dollars or more a sum shall be added sufficient to make the excess an even hundred dollars.
Section 2 provides:
Salaries of judges, registers, and assistant registers of probate shall be readjusted in the year succeeding each national or state census, in accordance with the classification set forth in section one.
Both of these statutes contain express provision for readjustment at regular periods upon the basis of population or receipts of money.
Chapters 451 and 453, which establish classes according to population, contain no such provision for readjustment, and do not refer to the State or national census, or to any other official determination of the population upon which the divisions are to be based. They both purport to establish salaries, and not to establish divisions by which the salaries are to be determined from time to time.
Chapter 451 has been several times amended. St. 1905, c. 179; St. 1906, cc. 276, 290; St. 1907, c. 253; St. 1910, c. 537; and see St. 1907, c. 145, § 2; St. 1909, c. 232. But none of these amendments is of much assistance in determining the question now under consideration. In the case of chapter 453,
however, a statute which in form is substantially like chapter 451, the amendments are more instructive. Thus, in St. 1905, c. 165, it is provided that
The police court of Lowell, being a court the judicial district of which has, and has had since the twenty-fifth day of April in the year nineteen hundred and four, a population of more than one hundred thousand, shall be included in class B as defined in section one of chapter four hundred and fifty-three of the acts of the year nineteen hundred and four, entitled "An Act to establish the salaries of the justices, clerks and assistant clerks of certain police, district and municipal courts"; and the salaries of the justice, special justices, clerk and assistant clerk of the police court of Lowell shall be those which are established by said chapter for the courts included in the said class B, to be so allowed from the first day of July in the year nineteen hundred and four.
And in St. 1908, c. 323, which, in like terms, transferred the police court of Lawrence from Class D, where it was placed by chapter 453, to Class C, such transfer was made by reason. of an increased population which entitled it to be so transferred. See also St. 1906, c. 325. Of more significance than either of these, however, is St. 1905, c. 339, which provided for a specific readjustment after the taking of the decennial census of the year 1905, to be "effected in each case by the county treasurer of the county concerned, in accordance with the provisions of said chapter [St. 1904, c. 453]; and, beginning with the first day of January in the year nineteen hundred and six, the said salaries shall be paid according to the said readjustment." And finally, in St. 1910, c. 501, it was provided, in section 1, that
The salaries of the justices, clerks and assistant clerks of the district, police and municipal courts, other than the municipal court of the city of Boston, and the classes into which said courts are distributed, when the population of the judicial district of each of said courts as ascertained by the last preceding national or state census permits it, shall be so readjusted, by the officer paying the salary, as to correspond with the classes and salaries provided for by chapter four hundred and fifty-three of the acts of the year nineteen hundred and four, and acts in amendment thereof and in addition thereto. Payment of salaries so readjusted shall begin on the first day of July of the year in which said census is taken.
To the State Board of Health. 1911 March 7.
The obvious purpose of this statute was to establish a method by which the salaries of the officers included within the provisions of St. 1904, c. 453, might be readjusted in accordance with the schedules of salaries contained in that chapter without further recourse to the Legislature, and furnishes the strongest evidence that without such additional provision the Legislature did not deem that the statute as originally enacted authorized such readjustment. Since St. 1904, c. 451, is in form substantially similar to chapter 453, I can see no reason why the construction given to the latter chapter should not apply to the former, and I must, therefore, advise you that in my opinion further legislative authority is required before the county treasurer may lawfully pay increased salaries to the clerks of the courts, the county commissioners and the county treasurer upon the basis of an increased population of the county concerned.
STATE BOARD OF HEALTH SOURCES OF WATER SUPPLY-
R. L., c. 75, § 133, as amended by St. 1907, c. 467, § 1, providing in part that the State Board of Health "may make rules and regulations to prevent the pollution and to secure the sanitary protection of all such waters as are used as sources of water supply," and "may delegate the granting and withholding of any permit required by such rules or regulations to state boards and commissions and to selectmen in towns and to boards of health, water boards and water commissioners in cities and towns, to be exercised by such selectmen, boards and commissions . . . ; and upon complaint of any person interested said board shall investigate the granting or withholding of any such permit and make such orders relative thereto as it may deem necessary for the protection of the public health," does not authorize the State Board of Health, upon petition of certain inhabitants of a town requesting such Board to cause suitable rules and regulations to permit fishing in certain reservoirs artificially constructed and now owned and used as a source of water supply by such town, to require the water and sewer board thereof to issue permits for fishing, since the regulation of boating or fishing or of any use of such reservoirs which does not directly relate to the preservation of the purity thereof is for such town to establish.
By a communication dated February 25 you seek my opinion upon certain questions respecting the rights of the State Board of Health in the matter of a petition which has been entered