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Section 44 of chapter 590 of Statutes of 1908 provides that
No president, treasurer, member of a board of investment or officer of such corporation charged with the duty of investing its funds shall borrow or use any portion thereof, be surety for loans to others or, directly or indirectly, whether acting individually or as trustee holding property in trust for another person, be an obligor for money borrowed of the corporation; . . .
It was the obvious purpose of the Legislature, in St. 1908, c. 520, § 2, to make the investment or loan of deposits in the savings department of a trust company subject to the same regulations and restrictions that are applicable to the investment or loan of deposits in savings banks, and one of these restrictions is that no member of a board of investment or investment committee shall borrow or use any of such deposits, or be surety for loans made to others than himself. It follows, therefore, in my opinion, that a member of a board of investment of a trust company cannot legally be an endorser on a personal note for money loaned by such company to any
LABOR LAWS - MERCANTILE OR MANUFACTURING ESTABLISH-
ROOM AND FOOD SALESROOM.
An establishment which maintains a lunch room, and also a food salesroom from which supplies are sent to other lunch rooms maintained by the same establishment at other places and lunches are sent to be served at certain high, Latin and normal schools, the receipts of such food salesroom being a little over one eighth of the total receipts, is not, by reason of the maintenance of such food salesroom, excluded from the definition of "mercantile establishment" in St. 1909, c. 514, § 17, that such establishment "shall mean any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly providing and serving meals," and is not, therefore, a "manufacturing establishment," defined by the same section as "any premises, room or place used for the purpose of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part of an article."
Chief of the
You have requested my opinion as to whether the New Eng- To the land Kitchen, so called, maintained by the Women's Educa- District Police. tional and Industrial Union of Boston, is a manufacturing or a November 6.
mercantile establishment within the meaning of those terms as used in the laws relating to labor. The facts, I understand, are these: At the New England Kitchen, which is situated on Charles Street, there is a lunch room and a food salesroom. From this place is sent the food which the Union serves for lunches at the high, Latin and normal schools. From it also are sent supplies to the place of business of the Union on Boylston Street, where are maintained three lunch rooms, with a common kitchen, and a food salesroom. Receipts from sales of food at the food salesroom of the New England Kitchen constitute about one ninth of the total receipts of the New England Kitchen, and a little over one-eighth of such total receipts exclusive of supplies sent to Boylston Street. You state that "it is to be noted that the establishment in question [by which I infer that you refer to the New England Kitchen and not to the Union's place of business on Boylston Street] may be considered principally as a restaurant; also that it is a general custom in restaurants to sell such foods as are served therein to persons desiring to use the same off the premises." St. 1909, c. 514, § 17, contains the following definitions of "manufacturing establishments" and "mercantile establishments" as those terms are used in the laws relative to the employment of labor:
"Manufacturing establishments" shall mean any premises, room or place used for the purpose of making, altering, repairing, ornamenting, finishing or adapting for sale any article or part of an article.
"Mercantile establishments" shal mean any premises used for the purposes of trade in the purchase or sale of any goods or merchandise, and any premises used for the purposes of a restaurant or for publicly providing and serving meals.
The labor laws contain distinct provisions applicable to "manufacturing establishments" and to "mercantile establishments." See, for example, St. 1909, c. 514, § 47, and § 48, as amended by St. 1911, c. 484, § 1. The definitions must therefore be regarded as mutually exclusive. If an establishment is within one of the definitions it is not within the other. The
New England Kitchen is, on your statement, to be "considered principally as a restaurant." A restaurant is in express terms within the definition of "mercantile establishments." It is, therefore, immaterial that but for such express inclusion it might be considered as within the definition of "manufacturing establishments." I infer that your inquiry is as to whether the fact that the New England Kitchen maintains a food salesroom excludes it from the definition. As you have stated, the sale at a restaurant of food to be used off the premises is a usual practice, and one which must be taken to have been in the mind of the Legislature when it defined "mercantile establishments" as including restaurants. The receipts from sales at the food salesroom of the New England Kitchen are a comparatively small part of the total receipts of the establishment; in other words, the food salesroom is incidental to the lunch. room, or restaurant. Without attempting to state precisely where the line is to be drawn, I advise you that in my opinion, from the facts stated, the New England Kitchen is not by reason of its maintaining a food salesroom excluded from the definition of "mercantile establishments." It is a mercantile rather than a manufacturing establishment.
ELECTION DEATH OF CANDIDATE ON MORNING OF ELECTION
Where a candidate for the office of clerk of the courts died on the morning of the day of the election, but as the fact of his death was not generally known and his name was upon the official ballot the highest number of votes was cast for him, there was a failure to elect, and the Governor should cause a precept to be issued for the election of such officer in accordance with the provisions of St. 1907, c. 560, § 306.
You have requested my opinion as to whether William C. To the
It appears that the name of Samuel Keniston was upon the official ballot as a candidate for such office and that the highest number of votes was cast for him. It further appears that said Keniston died on the morning of election day before the opening of the polls. It does not appear to what extent the fact of the death of said Keniston was known to the voters of the county, but it is not claimed by the said Nevin that such fact was generally known.
Upon these facts I am of opinion that said Nevin was not elected clerk of the courts for said county, but that there was a failure to elect. This view is supported by authority. Howes v. Perry, 92 Ky. 260; State v. Walsh, 7 Mo. App. 142; State v. Speidel, 62 Ohio St. 156. It is an application of the principle that where the person receiving the highest number of votes is ineligible there is a failure to elect, and the person receiving the next highest number is not elected. This rule seems to be common to England and America. In England, however, and in one or more States of the United States it seems that this rule does not apply where the voters at the time of the election have notice of the ineligibility. The weight of authority in America seems to be, however, that the fact of notice is immaterial. Bowker et al., Petitioners; Loring and Russell, Election Cases, 282, and note; Cooley, Const. Lim. (7th ed.) 931, 932; Dillon, Municipal Corporations (5th ed.), § 373, and note. I am aware of no authority which, in the absence of evidence that the fact of the death of said Keniston was generally known to the voters of Dukes County at the time of the election, would hold said Nevin to have been elected clerk of the courts. According to the weight of authority in this country he would not have been elected even if it appeared that the fact of the death of said Keniston was generally known.
Since there has been a failure to choose a clerk of the courts, St. 1907, c. 560, § 306, becomes applicable. This section provides that the Governor shall cause a precept to be issued for the election of such officer.
CITY OR TOWN - TUBERCULOSIS HOSPITAL-MAINTENANCE
The maintenance by a city or town of a tuberculosis ward or bed or beds in a private tuberculosis hospital or in a general city or town hospital does not fulfil the requirements of St. 1911, c. 597, § 1, which provides that "every city or town which establishes and maintains a tuberculosis hospital shall be entitled to receive from the commonwealth a subsidy of five dollars per week for each patient who is unable to pay for his support, or whose kindred bound by law to maintain him are unable to pay for the same."
You have submitted to me three inquiries relative to the To the construction of St. 1911, c. 597, entitled "An Act to encourage Hospitals for and promote the building and use of tuberculosis hospitals in December 4. cities and towns." This statute, in section 1, provides that
Every city or town which establishes and maintains a tuberculosis hospital shal be entitled to receive from the commonwealth a subsidy of five dollars per week for each patient who is unable to pay for his support, or whose kindred bound by law to maintain him are unable to pay for the same, but the city or town shall not become entitled to his subsidy unless, upon examination authorized by the trustees of hospitals for consumptives, the sputum of such patients be found to contain bacilli of tuberculosis, and unless the hospital be subject to the inspection of, and be approved by, said trustees.
Your inquiries are substantially whether or not a city or town is entitled to the subsidy above provided for (1) if it maintains in a private tuberculosis hospital a tuberculosis ward or bed or beds; (2) if it maintains a tuberculosis ward in a general city or town hospital, or a bed or beds for tuberculous patients in such hospitals; and (3) if it maintains a tuberculosis ward in a private general hospital or a bed or beds for tuberculous patients in such hospital.
I am of opinion that all three of these inquiries should be answered in the negative. The purpose of the statute is obviously as stated in the title, "to encourage and promote the building and use of tuberculosis hospitals;" or, in other words, to furnish an inducement to cities and towns to erect and