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Under the provisions of this clause are we to understand that there must be one licensed fireman who operates the appurtenances of a boiler, and who is allowed one helper, who may be unlicensed, to operate any appurtenances of a boiler or boilers, and also that an unlimited number of coal shovelers may also be employed, whose duty solely consists in putting coal under the boiler in a large boiler plant?

In my opinion with reference to the first inquiry, your suggestion of a possible construction that the owner or user of a steam boiler, who had employed a person not licensed for the period of one week, might be forever after prohibited from taking advantage of the provision of section 78 in that regard, would be a most unreasonable construction. Taking said section 78 in connection with section 79, which provides that

If such steam engine or boiler is found to be in charge of or operated by a person who is not a duly licensed engineer or fireman and, after a lapse of one week from such time, it is again found to be operated by a person who is not duly licensed, it shall be deemed prima facie evidence of a violation of the provisions of the preceding section

It is obvious that this provision was intended for emergencies, so that a person in the exercise of good faith, and in an unavoidable emergency, might be allowed one week in which to provide himself with a licensed person within the requirements of the law. The object of the provision would not be accomplished if the right therein given is exhausted by its operation for one week and then forever prohibited.

With reference to the second inquiry, the question seems to be practically governed by an opinion of Attorney-General Knowlton, II Op. Atty.-Gen. 62. I am of the opinion that within the limits of your inquiry there must be one licensed person, either fireman or engineer, who operates the appurtenances of a boiler, and who is allowed one helper who may be unlicensed. There may also be an unlimited number of coal shovelers, whose duty consists solely in putting coal under the boiler. It was ruled in said opinion of Attorney-General Knowlton "that licenses are not required for mere laborers, whose duties require no skill and involve no responsibility."

To the House
Committee on

Since that opinion the statute has been changed so that it provides that it shall be unlawful for any person to have charge of or to operate the appurtenances of a boiler as well as the boiler or engine itself. This does not, in my opinion, change the conclusion reached by Attorney-General Knowlton. I know of no use of the word "appurtenances" which would include coal within that term. Coal shovelers or coal hoisters, or other persons performing duties of mere laborers with reference to the coal used in the operation of boilers, are not in my opinion operating any appurtenances thereof.

CONSTITUTIONAL LAW POLICE POWER COMPETITION
PURPOSE TO INJURE OR DESTROY BUSINESS OF A RIVAL
DISCRIMINATION LOWERING OF PRICES IN ONE LOCALITY
BY A PERSON, FIRM, ASSOCIATION OR CORPORATION EN-
GAGED IN BUSINESS IN SEVERAL LOCALITIES "UNFAIR
DISCRIMINATION."

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The purpose to injure or destroy the business of a rival by competition is not illegal.

A proposed act providing that "any person, firm, association or corporation ..
engaged in the production, manufacture or distribution of any commodity
in general use, that shall intentionally, for the purpose of destroying the
business of a competitor in any locality, discriminate between different
sections . . . of this Commonwealth, or between purchasers, by selling such
commodity at a lower rate for such purpose in one section . . . than is
charged in another section . . . shall be deemed guilty of unfair discrimina-
tion, which is hereby prohibited and declared unlawful", in effect renders
unlawful all competition in any locality entered into for the purpose specified
by a person, firm, association or corporation carrying on business in more
than one such locality.

The prohibition in such proposed act is not limited to discrimination entered
upon maliciously or for the purpose of destroying the business of competitors
in order to create a monopoly or for any other illegal purpose, and therefore
discloses no sufficient distinction between the acts of discrimination pro-
hibited and other acts of discrimination or competition not prohibited to
justify such prohibition as a valid exercise of the police power.
Such proposed act, therefore, if passed, would be unconstitutional and void.

On behalf of the Committee on Bills in the Third Read

Third Reading. ing you have submitted for my consideration a proposed

1912 April 23.

bill entitled "An Act to prohibit discrimination in the sale

of commodities," and requested my opinion upon its constitutionality.

The first section of the bill in question is as follows:

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Any person, firm, association or corporation, foreign or domestic, doing business in the commonwealth of Massachusetts and engaged in the production, manufacture or distribution of any commodity in general use, that shall intentionally, for the purpose of destroying the business of a competitor in any locality, discriminate between different sections, communities, towns or cities of this commonwealth, or between purchasers, by selling such commodity at a lower rate for such purpose in one section, community, town or city than is charged for said commodity by the vender in another section, community, town or city in the commonwealth, after making due allowance for the difference, if any, in the grade or quality and in the cost of transportation, shall be deemed guilty of unfair discrimination, which is hereby prohibited and declared unlawful.

There are other sections which define offences, provide for their prosecution and prescribe penalties, but in view of the conclusion hereinafter stated it is unnecessary to refer to them in detail.

The bill is undoubtedly designed to invoke the police power to prohibit a discrimination in prices between different localities in the Commonwealth, or between purchasers in different localities, where prices have been lowered in one locality for the purpose of destroying the business of a competitor in such locality, and in effect to render unlawful competition in a single locality entered into by a person, firm, association or corporation carrying on business in more than one locality. Like discrimination, induced by any other purpose or motive, is not illegal.

The fundamental question presented by the inquiry of the committee is, therefore, whether the definition of unfair discrimination in the section of the bill above quoted is grounded upon a reasonable distinction with reference to other forms of discrimination or competition so as to permit a valid exercise of the police power in the premises.

As above stated, discrimination is "unfair," and therefore prohibited, only when it arises from a lowering of prices in a

given locality "intentionally, for the purpose of destroying the business of a competitor;" but since in the conduct of business competition, which gives to one what it takes from another, must inevitably result in the destruction in whole or in part of the business of a rival, the specified purpose, to a greater or less extent, is inseparable from all competition. In itself, moreover, the purpose to injure the business of a rival by competition is not illegal. Martell v. White, 185 Mass. 255, 260; Plant v. Woods, 176 Mass. 492, 501; Bowen v. Matheson, 14 Allen, 499. And see Commonwealth v. Hunt, 4 Met. 111, 134. And this is true even where the injury sought to be accomplished is the destruction of the business and the consequent ruin of a competitor. Martell v. White, supra, p. 261. It follows, therefore, that neither the act of discriminating nor the purpose which brings the act within the prohibition of the bill, if separately considered, is illegal. On the contrary, the public policy of the Commonwealth has recognized and justified competition in business and has expressly declared that every contract, agreement or combination which restrains or prevents competition in the supply or price of any article or commodity is against public policy and is illegal and void. St. 1908, c. 454. See Vegelahn v. Guntner, 167 Mass. 92; Commonwealth v. Hunt, 4 Met. 111, 134.

The police power extends to all matters which affect the lives, limbs, health, comfort and welfare of all in their persons and property (Commonwealth v. Bearce, 132 Mass. 542, 546) and the Legislature may enact "such reasonable regulations as they may judge necessary to protect public and private rights, and to impose no larger restraints upon the use and enjoyment of private property, than are in their judgment strictly necessary to preserve and protect the rights of others." Commonwealth v. Alger, 7 Cush. 53, 102.

There are, however, limitations upon this power. Thus, in O'Keeffe v. Somerville, 190 Mass. 110, the court, in speaking of the regulation of the ordinary transactions of business (in this case the imposition of an excise tax upon the selling or

giving of trading stamps in connection with the sale of articles, which was held invalid), said, at page 114:

One of the reasons why these methods are allowable is found in the familiar principle that constitutional liberty means "the right of one to use his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation." The restrictions upon conduct which may be imposed in the exercise of the police power include everything that may be necessary in the interest of the public health, the public safety or the public morals, and they include nothing more. These doctrines have often been discussed and elaborated, and it is unnecessary to consider them at length in this

case.

To constitute the bill now before me a proper exercise of the police power, therefore, it must appear that the public health, the public safety or the public morals require protection against competition when it takes the form of a discrimination in the price of a commodity between localities or purchasers in different localities which is unnecessary where competition does not result in such discrimination. The right primarily protected is the right of the competitor in a locality against which the discrimination is directed to be free from competition, a right which does not exist at common law (Walker v. Cronin, 107 Mass. 555; Martell v. White, 185 Mass. 255), and which contravenes the established public policy of the Commonwealth. Such being the purpose and effect of the bill submitted to me, I am constrained to say that in its present form it discloses no sufficient distinction between the acts prohibited and other forms of competition which the law not only permits but encourages, and that in my opinion, if enacted, it would not constitute a valid exercise of the police power.

Legislation, substantially like the bill now before your committee, has been twice considered by courts of last resort. In State v. Drayton, 82 Nebr. 254, a statute almost identical in terms was upheld upon the ground that it "was enacted for the purpose of supplying a defect in the anti-trust laws of the State," upon an information charging that the defendant "did

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