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OPINIONS OF THE ATTORNEY-GENERAL.
or electric light poles on State highways. There are two sections which refer to the jurisdiction of the State Highway Commission, sections 11 and 21.
Section 11 provides:
Said commission shall keep all state highways reasonably clear of brush, shall cause suitable shade trees to be planted thereon if practicable, and may establish and maintain watering troughs upon said highways. No opening shall be made in any such highway nor shall any structure be placed thereon, nor shall any structure which has been placed thereon be changed or renewed, except in accordance with a permit from the commission, which shall exercise complete and permanent control over such highways.
Section 21 provides:
No state highway shall be dug up for laying or placing pipes, sewers, poles, wires or railways or for other purposes, and no tree shall be planted or removed or obstruction placed thereon, without the written permit of the highway commission, and then only in accordance with the regulations of said commission; and the work shall be done under the supervision and to the satisfaction of said commission, and the entire expense of replacing the highway in as good condition as before shall be paid by the persons to whom the permit was given or by whom the work was done; but a city or town may dig up such state highway without such approval of the highway commission in case of immediate necessity; but in such cases it shall be forthwith replaced in as good condition as before at the expense of the city or town. Said commission shall give suitable names to the state highways, and may change the name of any way which becomes a part of a state highway. They shall erect suitable guide posts at convenient points along state highways.
In a brief filed by counsel for the telegraph company, and annexed to the communication submitted by the State Highway Commission, it is contended that the use of the words "shall exercise complete and permanent control over such highways" is sufficient to vest in the commission the right and power to grant locations for telegraph or telephone poles upon State highways, independently of any action upon the part of the mayor and aldermen in the case of cities or of boards of selectmen in the case of towns.
I am of opinion, however, that a consideration of section 21, above quoted, shows conclusively that such was not the purpose of the Legislature and is not the effect of section 11. Section 21 clearly contemplates that the State Highway Commission, in the matter of the placing of pipes, sewers, poles or wires, shall act only in a supervisory capacity, and shall have no authority to grant original locations for telegraph or telephone poles independently of the local boards which are constituted the tribunals for that purpose under the provisions of St. 1906, c. 117. (See, also, 1 Op. Atty.-Gen. 317.) It follows, therefore, that the Massachusetts Highway Commission have no authority or jurisdiction to grant original locations for telephone, telegraph or electric light poles.
HOURS OF LABOR INSANE HOSPITAL DAY'S WORK-
St. 1906, c. 517, § 1, providing, in part, that "eight hours shall constitute a day's work for all laborers, workmen and mechanics now or hereafter employed by the Commonwealth, . . . but in cases where a Saturday half-holiday is given the hours of labor upon the other working days of the week may be increased sufficiently to make a total of forty-eight hours for the week's work," does not require a nine-hour wage, and does not prohibit the employment of laborers, workmen and mechanics by the Commonwealth for more than eight hours a day, when the contract for such employment is by the hour.
Such statute provides for an eight-hour day upon Sunday as well as upon other days
of the week for persons properly employed upon that day, and does not restrict the employment of persons required to work seven days a week to forty-eight hours.
If a half-holiday is given, it must be a Saturday half-holiday.
If the appropriations for the maintenance of the Worcester Insane Hospital are fixed for the year, the trustees of such hospital are not authorized to exceed the same to comply with the provisions of such chapter.
In your letter dated July 25, you state that the trustees of To the Trustees the Worcester Insane Hospital desire my opinion in regard Worcester to certain aspects of the so-called eight-hour law, passed at Hospital. the last session of the Legislature.
This act is chapter 517 of the Acts of 1906, and provides in its first section that:
Eight hours shall constitute a day's work for all laborers, workmen and mechanics now or hereafter employed, by or on behalf of the Commonwealth, or of any county therein, or of any city or town which has accepted the provisions of section twenty of chapter one hundred and six of the Revised Laws; but in cases where a Saturday half-holiday is given the hours of labor upon the other working days of the week may be increased sufficiently to make a total of forty-eight hours for the week's work.
To your questions I reply as follows:
1. Does the eight-hour law carry with it a nine-hour wage? It does not require a nine-hour wage.
2. Can laborers, workmen and mechanics in State institutions work more than eight hours per day, and if so, under what conditions?
In my opinion, laborers, workmen and mechanics working in State institutions may, if employed by State officials by the hour, work more than eight hours a day. St. 1906, c. 517, § 1, is similar in terms to the federal act of June 25, 1868 (15 Stat. 77), Rev. Sts., § 3738, which provides that "eight hours shall constitute a day's work for all laborers, workmen and mechanics who may be employed by or on behalf of the government of the United States.'
In the case of United States v. Martin, 94 U. S. 400, the United States Supreme Court had this act under consideration, and, speaking by Mr. Justice Hunt, said:
This was a direction by Congress to the officers and agents of the United States, establishing the principle to be observed in the labor of those engaged in its service. It prescribed the length of time which should amount to a day's work, when no special agreement was made upon the subject. There are several things which the act does not regulate, which it may be worth while to notice.
First. It does not establish the price to be paid for a day's work... Second. -The statute does not provide that the employer and the laborer may not agree with each other as to what time shall constitute a day's work.
We regard the statute chiefly as in the nature of a direction from a principal to his agent, that eight hours is deemed to be a proper length of time for a day's labor, and that his contracts shall be based upon that theory..
It is to be noticed that since this decision an act has been passed (Act of Aug. 1, 1892, chapter 352, 27 Stat. 340) relating to hours of labor of laborers and mechanics employed upon public works of the United States and of the District of Columbia, which expressly provides that it shall be unlawful to require or permit a laborer or mechanic to work more than eight hours in any calendar day.
The Massachusetts statute regulating the hours of labor has been construed by two of my predecessors. St. 1890, c. 375, provided that:
Nine hours shall constitute a day's work for all laborers, workmen and mechanics now employed or who may be employed by or on behalf of the Commonwealth of Massachusetts or any city or town therein; and all acts and parts of acts inconsistent with this act are hereby repealed.
On April 24, 1891, the Hon. Albert E. Pillsbury (1 Op. Atty.Gen. 10), then Attorney-General, advised the Governor that this statute did not prohibit the employment of labor in State institutions for more than nine hours a day, if such labor was contracted for and paid for by the hour.
By St. 1891, c. 350, this act was amended so as to apply to counties. By St. 1893, c. 406, it was provided:
All contracts hereafter made by or on behalf of the Commonwealth requiring the employment of manual labor shall provide that persons employed in the performance of such labor under any such contract shall not be required to work more than nine hours in each day, and that said nine hours shall constitute a day's work.
In St. 1894, c. 508, §§ 7 and 8, the provisions of St. 1890, c. 375, as amended, and St. 1893, c. 406, were substantially re-enacted. This act also provided a penalty for the violation of its provisions.
St. 1899, c. 344, § 1, provided that eight hours should constitute a day's work for laborers, workmen and mechanics employed by a city or town, and section 3 of that chapter, amended by St. 1900, c. 357, provided that this act should take effect only upon its acceptance by the city or town.
On May 14, 1900, the Hon. Hosea M. Knowlton, then Attorney-General, in an opinion, said:
St. 1894, c. 508, § 7, which provides that "Nine hours shall constitute a day's work for all laborers," etc., refers only to employment by the day. It does not and is not intended to prohibit the employment of labor by the hour, if the laborer is willing to be so employed.
If a laborer is told that he can only be employed upon his agreement to work more than nine hours per day at a given rate per hour, and accepts the employment upon such terms, such employment is an evasion of the law, but not, in my judgment, a violation of it. Being a penal law, it is to be construed strictly. A person so employed, however powerful the inducement, is, nevertheless, in contemplation of law, working voluntarily, and the case, so far as the statute is concerned, is the same as though no such threat were held out to him. Employment by the hour is not within the statute.
St. 1894, c. 508, §§ 7 and 8, and St. 1899, c. 344, as amended, appear as R. L., c. 106, §§ 19, 20 and 21, without substantial changes, and the same chapter contains a provision for penalty.
The present statute reduces the number of hours in a day's work for the Commonwealth or a county from nine to eight, with a provision that the number of hours may be increased if a Saturday half-holiday is given; otherwise, however, the law is not materially changed, and the statements quoted above from the opinion of my predecessor are, it seems to me, applicable to the law as it now stands, if the word "eight" be substituted for the word "nine."
3. What application has the act to laborers, workmen and mechanics whose duties ordinarily call for Sunday work?
The statute provides for an eight-hour day on Sunday as well as on other days of the week for persons properly employed on that day as well as on other days of the week.
4. In cases where the ordinary duties of laborers, workmen and mechanics require them to work seven days a week, does the law restrict their employment to a total of forty-eight hours, or does fifty-six hours in such cases constitute a week's work?
The law does not restrict the employment of persons required to work seven days a week to a total of forty-eight hours.