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the Governor forbidding him to veto a bill on a holiday, and I therefore assume that he may do so. As he may express his veto on a holiday, I am of the opinion that the better rule is to include the holiday as one of the five days allowed under the constitutional provision.

STATUTE PRESUMPTION OF LAWFUL PASSAGE - ADMINIS-
TRATIVE OFFICERS.

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The presumption arising from the proper custody and due authentication of an act of the Legislature that such act was passed in accordance with the requirements of the Constitution, should be regarded as binding upon administrative officers, and such act should be regarded by them as having "the force of a law."

1911

In behalf of the Civil Service Commission you request my To the opinion as to whether St. 1911, c. 119, which is entitled "An Commission. Act relative to qualifications for examination by the civil June 7. service commission," has the "force of a law." This act, after having passed both branches of the General Court, was "laid before the Governor for his revisal," and was by him returned to the House of Representatives, in which branch it originated, without his approval. Thereupon, as appears from the journal, a quorum being present, more than two-thirds of the members present but less than two-thirds of the entire membership (unless the members paired in favor be counted) agreed to pass it. Thereafter, it was sent to the other branch, and was approved by two-thirds of the members present. You seek advice as to whether upon these facts the act was legally passed; that is, whether the constitutional requirement for the passage of a bill over the Governor's veto, that twothirds of the Senate or House of Representatives, in which it originated, should agree to pass it (Const., Part II., c. 1, § 1, Art. II.), was complied with.

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The bill is now deposited with the Secretary of the Commonwealth, who, under the Constitution (Part II., c. 2, § 4, Art. II.), has the custody of the records of the Commonwealth. It bears the statements, signed, respectively, by the speaker of the

House and the president of the Senate, that it was passed to be enacted by those branches. It also bears the statement, signed by the speaker and by the clerk of the House, that the bill, "having been returned to the House of Representatives by His Excellency the Governor with his objections thereto in writing, is passed by the House of Representatives notwithstanding said objections, two-thirds of the members having voted in the affirmative;" and the statement, signed by the president and by the clerk of the Senate, that it "has been passed in concurrence by the Senate, the objections of His Excellency the Governor to the contrary notwithstanding, two-thirds of the members present having approved the bill." Said bill is, therefore, in the proper custody and duly authenticated, and is presumed to have been enacted in accordance with constitutional requirements. Whether such presumption can be overcome by reference to the legislative journals is a matter upon which the courts are not in agreement. The Supreme Court of the United States holds that a bill which is in proper custody and duly authenticated is conclusive evidence of its execution and valid enactment (Field v. Clark, 143 U. S. 649; Flint v. StoneTracy Co., 220 U. S. 107), and the same view is held by numerous State courts. Other State courts take a different view. Without expressing an opinion as to the view which is likely to be adopted by the Supreme Judicial Court of this Commonwealth when the case comes before it, I advise you that the presumption arising from proper custody and due authentica tion should be regarded as binding upon administrative officers, and that said act should be regarded by your commission as having the "force of a law." I do not, of course, intend by so advising you to imply that if the journals were referred to it would appear that the bill was not legally enacted. Upon careful consideration I have concluded that I ought not to express an opinion in answer to that inquiry.

CORPORATION-CHARTER-PURPOSE - HOLDING COMPANY-
ACQUISITION OF STOCK OF DOMESTIC STREET RAILWAY,
GAS AND ELECTRIC LIGHT CORPORATIONS.

Under the provisions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, § 7, that "three or more persons may associate themselves by a written agreement of association with the intention of forming a corporation under general laws for any lawful purpose which is not excluded by the provisions of section one except to buy and sell real estate," a corporation may be organized for the purpose "to buy and hold a majority of the shares of the capital stock of any street railway, gas and electric light companies organized under the laws of this commonwealth to do business within this commonwealth."

missioner of

1911

You request my opinion as to whether "a corporation may To the Combe organized under chapter 437 of the Acts of the year 1903 Corporations. for the following purpose: 'to buy and hold a majority of the June 9. shares of the capital stock of any street railway, gas and electric light companies organized under the laws of this Commonwealth to do business within this Commonwealth." "

It is well established in this Commonwealth that a corporation may be organized under the general laws for the purpose of acquiring the stock of other corporations under the provisions of St. 1903, c. 437, § 7, as amended by St. 1906, c. 286, which is as follows:

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Three or more persons may associate themselves by a written agreement of association with the intention of forming a corporation under general laws for any lawful purpose which is not excluded by the provisions of section one except to buy and sell real estate.

By section 1, as amended by St. 1910, c. 385, it is provided that the purposes excluded from its provisions are:

the purpose of carrying on the business of a bank, savings bank, cooperative bank, trust company, surety or indemnity company, or safe deposit company, or to corporations organized under general or special laws of this commonwealth for the purpose of carrying on within the commonwealth the business of an insurance company, railroad, electric railroad or street railway company, telegraph or telephone company, gas or electric light, heat or power company, canal, aqueduct or water company, cemetery or crematory company, or to any other corporations which now have or may hereafter have the right to take or condemn

land within the commonwealth, or to exercise franchises in public ways granted by the commonwealth or by any county, city or town; but, except as hereinbefore provided, the provisions of this section shall not be construed to prohibit the organization of a corporation under the provisions of this act for the purpose of carrying on any lawful business outside of this commonwealth.

The question is then presented whether the ownership of stock for purposes of investment or control is a lawful purpose under the foregoing provisions of law.

In and of itself the ownership of stock is undoubtedly a lawful purpose; and if expressly authorized, stock may be acquired and held for purposes of investment or bought and sold for purposes of profit. It is only when contrary to public policy as declared by express statute or by the principles of common law that such holding will become unlawful. Is such acquisition and ownership unlawful when the corporations to be controlled by means of the ownership of stock are not business corporations but public-service corporations, such as gas and electric light or street railway companies? I am aware of no provision of law which expressly forbids such ownership in the case of public-service corporations. It has been suggested that the organization of a business corporation to acquire the stock of or to control public-service corporations is in effect the organization of public-service corporations under the business corporation law (St. 1903, c. 437), which constitutes a violation. of so much of section 1 as provides that it shall not apply to the corporations enumerated, including street railway companies and electric light companies. In my opinion, however, this contention is disposed of by the language of the court in Pullman Car Co. v. Missouri Pacific Co., 115 U. S. 587, and in Peterson v. Chicago, Rock Island & Pacific Ry. Co., 205 U. S. 364, 391, where the court said:

It is true that the Pacific company practically owns the controlling stock in the Gulf company, and that both companies constitute elements of the Rock Island system. But the holding of the majority interest in the stock does not mean the control of the active officers and agents of the local company doing business in Texas. That fact gave the Pacific

company the power to control the road by the election of the directors of the Gulf company, who could in turn elect officers or remove them from the places already held; but this power does not make it the company transacting the local business.

This record discloses that the officers and agents of the Gulf company control its management. The fact that the Pacific company owns the controlling amounts of the stock of the Gulf company, and has thus the power to change the management, does not give it present control of the corporate property and business.

This conclusion, however, is based upon the assumption that the holding corporation is organized in good faith to conduct the business of acquiring and owning the stock specified, and is not a device or trick to avoid the consequences of illegal acts or to accomplish a purpose which would not be permitted to a public-service corporation.

The question whether the organization of a holding company for the purpose of acquiring the stock of and controlling a public-service corporation is against public policy as tending to create a monopoly is a more difficult one. Numerous cases in other jurisdictions have decided contrary to such organization. In this Commonwealth, however, it appears to be the established policy to restrict competition in the case of such publicservice corporations as gas and electric light companies and street railway companies, subject to regulation by the State. See Weld v. Gas and Electric Light Commissioners, 197 Mass. 556, 558. Indeed, it may be said that in this Commonwealth all public-service corporations are so supervised and controlled by the public authorities that there is no longer unrestricted competition, upon the theory that the rights of the public are better served by careful regulation than by unregulated competition.

In this Commonwealth, also, there appears to be no public policy opposed to the creation of holding companies, so called, even when they are for the purpose of holding the stock of public-service corporations. Thus, by St. 1909, c. 519, the Boston Railroad Holding Company was incorporated for the purpose "of acquiring and holding the whole or any part of

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