In the language of R. L., c. 8, § 5, above quoted, the words "land," "lands" and "real estate" are apparently used as synonymous, and as including the buildings, inasmuch as the term "hereditament" is defined by Bouvier as Things capable of being inherited, be it corporeal or incorporeal, real, personal or mixed, and including not only lands and everything thereon, but also heirlooms and certain furniture which by custom may descend to the heirs, together with the lands; and the term "tenement" as Everything of a permanent nature which may be holden. House, or homestead. Property held by tenant. The word "land" has been construed to include under the statute an undivided interest therein held by a tenant in common. Leavitt v. Cambridge, 120 Mass. 157, 159. From the foregoing statutes and definitions I think it is clear that, in the absence of language, in the act of 1905 indicating clearly a contrary intention, the word "lands" must be taken to include buildings, and the question, therefore, is whether such a contrary intention clearly appears. I am of opinion that not only does no such intention clearly appear, but that it does not appear at all. The words "as heretofore specified in this section," in the clause under discussion, refer to the earlier provision that "the mayor of every city and the selectmen of every town shall . . . cause a notice to be sent to the owner or owners. . . of every parcel of land therein which is infested with said moths." The lands referred to, therefore, are the parcels of land infested with moths; and the term "parcel of land" is the term to be interpreted. If this is considered to exclude buildings, it would follow that no notice need be sent to and no action taken by persons whose buildings, but not whose lands, were infested. Such can hardly have been the intention of the Legislature. Throughout the act the following words descriptive of real estate are used: "estate," "real estate," "real property,' "land," "property," "private property," "parcel of land," "lands," "premises" and "private estates." They are apparently used somewhat indiscriminately, and to interpret the words "lands," in every case, to exclude buildings, would lead to many incongruities. I can see no more reason for so interpreting it in the clause under discussion with respect to the assessed valuation than in several other places where it appears. Moreover, there seems to be no object in excluding the assessment of buildings, under the act, as it is common knowledge that the gypsy moth is very apt to build its nest on buildings as well as on trees. In fact, I am informed by you that clearing buildings of the nests of gypsy moths forms a considerable part of your work. Had the Legislature intended to distinguish between land, as such, and the buildings thereon, it could easily have done so, for I find among the bills upon this subject presented to the Legislature of 1905, House Bill No. 644, in which a distinction was made between "house lots," "farm land" and "waste land," and which contained the proviso that "no owner shall pay more than one half of one per cent of the assessed value of said house lot, nor more than twenty-five dollars for farm land, nor more than fifty dollars for such work on any one estate in any one calendar year." The report upon this bill was "leave to withdraw," by the committee to which it was referred. The fact that this distinction was not adopted in the bill as finally passed, indicates that the Legislature did not desire to differentiate between the various sorts of real estate. Although it is true that the form prescribed for the use of assessors in assessing taxes (R. L., c. 12, § 58) has separate columns for the description and valuation of buildings and land, and these distinctions are actually made by the assessors, I do not think these facts are material in connection with this statute; for not only is the tax assessed on the real estate as a whole (R. L., c. 12, § 68), but also it has been indicated that the purpose of the classification above referred to is purely statistical. See Hamilton Manufacturing Co. v. Lowell, 185 Mass. 114, at p. 117, where Knowlton, C.J., says: Land and the buildings upon it are ordinarily parts of the same real estate, and they cannot be separated for the purpose of collecting taxes. Although for statistical purposes they are at first valued separately, their aggregate worth, limited by their value in use together, constitutes the valuation of the entire real estate for the purpose of taxation. I am therefore of opinion that the phrase "not exceeding one half of one per cent of the assessed valuation of said lands, as heretofore specified in this section," should be interpreted to mean the assessed valuation of the lands with the buildings thereon. TOWN SCHOOL COMMITTEE - AUTHORITY TO DRAW ORDERS The school committee of a town may, in the performance of the duties imposed Board of Your letter of March 20 requests my opinion upon the fol- To the State lowing specified questions: 1. Is it within the rights of a school committee to draw orders directly upon the town treasury, without the intervention of the selectmen, for the payment of bills contracted for the support of schools, and is the treasurer under obligation to honor such orders? 2. Does the existence of a town by-law forbidding the treasurer to pay out any money, except upon orders drawn by the selectmen, affect the rights of the school committee in this regard? R. L., c. 42, relating to public schools, in section 27 provides that the school committee shall have the general charge and superintendence of all the public schools, industrial schools, evening schools and evening high schools. Section 28 provides that it — shall select and contract with the teachers of the public schools, etc. 1906 March 22. Section 34 provides that it shall direct what books shall be used in the public schools, etc. Section 35 provides that it shall, at the expense of the town, purchase text books and other school supplies used in the public schools, and, subject to such regulations as to their care and custody as it may prescribe, loan them to the pupils of such schools free of charge, etc. Section 37 provides that it shall, at the expense of the town and in accordance with appropriations therefor previously made, procure apparatus, reference books and other means of illustration. It will be seen that the powers conferred upon the school committee in any city or town are very broad, and that they may contract with the teachers whom they desire to employ, and by such contract bind the town to pay the compensation determined upon. So in Batchelder v. the City of Salem, 4 Cush. 599, the court said: By this statute, the committee has the power, absolutely and unconditionally, to agree upon the salaries of the teachers. There is no power given to any other men, or body of men, to contract with the teachers, and this power is given by the statute, and not by the town or city. In this case it was held that the school committee might bind the town to pay to the teachers selected the amount of compensation agreed upon. So in Charlestown v. Gardner et al., 98 Mass. 587, it was said that: The power given to the school committee to contract with teachers necessarily implies and includes the power to determine their salaries. So under St. 1826, c. 143, providing that "the school committee of each town shall procure class-books at the expense of the town and to be paid for out of the town treasury," it was held in Hartwell v. Littleton, 13 Pick. 229, that the school committee might either buy the books on the credit of the town, or might themselves pay for them, and so make themselves creditors of the town. In view of these cases, which beyond doubt establish the power of a school committee to make expenditures for the purposes specified in the statutes and in connection with the duties therein imposed upon them, which the city or town for which they act will be bound to pay, I am of opinion that such committee may draw orders directly upon the town treasury, and that the selectmen have no power or authority in the premises to refuse such orders; and I think this is true notwithstanding that there may be in existence a town by-law which forbids the town treasurer to pay out money upon orders other than orders drawn by the selectmen. No by-law which is in contravention of a general statute can be valid (see Commonwealth v. Wilkins, 121 Mass. 356); and the clear effect of such a by-law as is referred to would be to limit and circumscribe the statutory powers of the school committee, and, in effect, to make them subordinate to and under the immediate direction of the selectmen, a result not contemplated by the statutes. MARINE INSURANCE - AUTOMOBILE LOSS BY COLLISION. The owner of an automobile may not, under the provisions of R. L., c. 118, § 29, relating to insurance against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland navigation and transportation, be insured against loss caused by the collision of such automobile with another object, or against liability for damage caused thereby to other property. Insurance 1906 You ask my opinion upon the question whether a "collision To the clause" insuring the owner of an automobile, whereby the Commissioner. owner is insured against loss to the automobile caused by a April 2. collision with another object, and also against liability for damage caused by the automobile to other property through a collision, is permissible in this Commonwealth under a marine policy. |