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cises control or proprietorship of it." Ante. p. 359; Commonwealth v. Kimball, 105 Mass. 465, 467.
The opinion above expressed is, however, not to be construed as holding that duly licensed individuals may not lawfully form a partnership for the purpose of establishing or keeping such a hospital. In other words, while your Board is, in my opinion, not authorized to recommend for license a partnership, but must limit its recommendations to individuals, the law does not appear to forbid the formation of a partnership by individuals, each of whom is a duly qualified physician, and each of whom has been deemed suitable to establish and keep such a hospital by your Board, and each of whom has been duly licensed as an individual for such work.
WATER SUPPLY VOTE.
A town which has accepted by a two-thirds vote an act authorizing it to supply itself and inhabitants with water, may incur indebtedness therefor only by compliance with the provision of R. L., c. 27, § 8, which requires a vote of two-thirds of the voters present and voting at a town meeting to authorize incurring indebtedness for such purpose.
Statistics. 1912 August 15
You have requested my opinion as to "whether a town To the Deputy which accepts by a two-thirds vote an act authorizing it to Bureau of supply itself and inhabitants with water may incur debt therefor without being required to comply with the provisions of R. L., c. 27, § 8, which makes necessary a two-thirds vote in order that it may incur debt for such a purpose," and you have informed me orally that your inquiry is made with a special reference to the town of Merrimac, which, by St. 1903, c. 281, was authorized to supply itself and its inhabitants with water. Section 6 of that act is as follows:
Said town may, for the purpose of paying the necessary expenses and liabilities incurred under the provisions of this act, issue from time to time bonds, notes or scrip to an amount not exceeding ninety thousand dollars. Such bonds, notes or scrip shall bear on their face the words, Town of Merrimac Water Loan, and shall be payable at the expiration of periods
not exceeding thirty years from the date of issue, shall bear interest, payable semi-annually, at a rate not exceeding four per cent per annum, and shall be signed by the treasurer of the town and countersigned by the water commissioners hereinafter provided for. Said town may sell such securities at public or private sale, or pledge the same for money borrowed for the purpose of this act, and upon such terms and conditions as it may deem proper: provided, that such securities shall not be sold for less than the par value thereof.
Section 14 is as follows:
This act shall take full effect upon its acceptance by two thirds of the legal voters of the town of Merrimac present and voting thereon at a legal meeting called for the purpose within three years from its passage; but the number of meetings so called in any one year shall not exceed three; and for the purpose of being submitted to the voters as aforesaid this act shall take effect upon its passage.
Your question would seem to be answered by the application of the principles stated in an opinion rendered to your department July 7, 1911, in reply to a closely similar question.
The vote of the town to accept St. 1903, c. 281, is not to be construed as a vote to issue bonds, notes or scrip. It is merely an acceptance of the legal authority to issue bonds, notes or scrip for the purposes of the act at such later time or times as it shall in accordance with law vote to exercise that authority. In the exercise of that authority the town must follow the statutory requirements. So far as St. 1903, c. 281, prescribes the details of such issue it is to be followed; in other respects the general law must control. The special act does not state whether the vote to issue bonds, notes or scrip shall be a majority or a two-thirds vote. The matter is, therefore, governed by the provisions of R. L., c. 27, § 8, which requires, that debts shall be incurred only in the case of a town, by "a vote of two thirds of the voters present and voting at a town meeting,” and in the case of a city, by a vote "of two thirds of all the members of each branch of the city council."
It is provided by R. L., c. 27, § 21, that where a city accepts, by a vote of two-thirds of the legal voters, an act to supply it
with water a "vote of the majority of the members of each branch of the city council" shall be sufficient to authorize the issue of bonds. By implication, it appears from this provision of law that a vote merely to accept the act is not sufficient to authorize the issue of bonds, and that the issue of bonds must be authorized by a subsequent vote of the city or town. It also appears by implication from this provision of the statutes that in cases not within this exception a two-thirds vote is necessary to authorize such an issue of bonds. There is no provision of law authorizing a town which has accepted such an act to issue bonds on a vote of less than two-thirds of the voters present and voting at a town meeting.
Your question is, therefore, to be answered in the negative.
HOURS OF LABOR CITIES AND TOWNS ACCEPTANCE OF
St. 1911, c. 494, providing in section 1 that "the service of all laborers, workmen and mechanics, now or hereafter employed... by any city or town which has accepted the provisions of section twenty of chapter one hundred and six of the Revised Laws, or of section forty-two of chapter five hundred and fourteen of the acts of the year nineteen hundred and nine, . . . is hereby restricted to eight hours in any one calendar day," is not in force in cities and towns which have not accepted the provisions of R. L., c. 106, § 20, or of St. 1909, c. 514, § 42, but which had accepted the provisions of St. 1899, c. 344, a corresponding provision of an earlier law.
You have requested my opinion as to whether chapter 494 of the Acts of 1911 is applicable to and in force in cities and towns which have not accepted the provisions of section 20 of chapter 106 of the Revised Laws or of section 42 of chapter 514 of the Acts of 1909, but which had accepted the provisions of chapter 344 of the Acts of 1899, a corresponding provision of an earlier law.
Section 1 of said chapter 494 of the Acts of 1911 is in part as follows:
The service of all laborers, workmen and mechanics, now or hereafter employed by the commonwealth or by any county therein or by any city
To the Chief
of the Dis
1912 August 15.
or town which has accepted the provisions of section twenty of chapter one hundred and six of the Revised Laws, or of section forty-two of chapter five hundred and fourteen of the acts of the year nineteen hundred and nine, or by any contractor or subcontractor for or upon any public works of the commonwealth or of any county therein or of any such city or town, is hereby restricted to eight hours in any one calendar day,
In my opinion this inquiry must be answered in the negative. In section 20 of chapter 106 of the Revised Laws it is provided that such laws should be applicable to cities and towns which had accepted the provisions of that section, "or the corresponding provisions of earlier laws." Chapter 514 of the Acts of 1909, which prohibited requesting or requiring, etc., any employee to work more than eight hours in any one day, omitted the foregoing phrase which had been contained in said section 20 of chapter 106 of the Revised Laws, providing only that it should apply to cities which had accepted the provisions of section 20 of chapter 106 of the Revised Laws and section 42 of said chapter 514 of the Acts of 1909. In chapter 494 of the Acts of 1911, in which the word "permit" was added to the previous provisions of the act of 1909, it is also provided that the act shall apply to cities and towns which had accepted the provisions of said section 20 of chapter 106 of the Revised Laws or of section 42 of chapter 514 of the Acts of 1909. It appears clear, therefore, that in order to have chapter 494 of the Acts of 1911 in force in any city or town, it must appear that such city or town has accepted either the provisions of section 20 of chapter 106 of the Revised Laws or section 42 of chapter 514 of the Acts of 1909.
The earlier provisions of law were less stringent than the more recent legislation hereinbefore cited, and it appears to me to have been the intent of the Legislature, when they made the law more drastic and added the recent provisions to the general law making eight hours a legal day's work, to require cities and towns to accept the provisions of these more recent enactments. As this is a penal statute, and so must be strictly construed, I am of opinion that the act in question is not in force in such cities and towns as are covered by your inquiry.
The provisions of St. 1911, c. 751, which establishes a system for the compensation of employees for personal injuries received in the course of their employment, are not applicable to the Commonwealth as an employer in its various departments nor to direct employees of the Commonwealth.
You have requested my opinion as to whether, under the To the State provisions of St. 1911, c. 751, known as "the workmen's com- Education. pensation act," the Massachusetts Board of Education is re- August 19. quired to insure teachers, janitors, engineers, working students and others employed to do work about the grounds and shops of certain educational institutions within the jurisdiction of the Board, such, for example, as the normal schools. The Massachusetts Agricultural College, to which you refer in your letter, is not strictly a State institution, and I will, therefore, confine myself to answering the question with reference to those institutions in which the persons referred to are employed directly by the Commonwealth.
While in the words of the Supreme Judicial Court of the Commonwealth, "the act in question involves a radical departure in the manner of dealing with actions or claims for damages for personal injuries received by employees in the course of their employment from that which has heretofore prevailed in this Commonwealth" (209 Mass. 607), it is not, in my opinion, to be considered as involving a radical change in the law as to what shall constitute claims or causes of action against the Commonwealth or in the law prescribing the manner of the prosecution of such claims.
The Commonwealth, since it is sovereign, may be impleaded in its own courts only by its clearly expressed consent, and claims against the Commonwealth may be prosecuted only in the manner and upon the terms assented to by the Commonwealth by clear legislative enactment.
The statute in question is not by express provision made applicable to the Commonwealth, and its provisions as to the administration of the law are not consistent with an intention.