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In cases in which statutes were found to be manifestly defective or imperfect, or in which their construction was doubtful or ambiguous, we have endeavored in such notes to submit a method of remedying the defect or ambiguity in so far as it involved no question of expediency or policy.
In the performance of their task, the commissioners encountered the same difficulties and were obliged to determine the same kinds of questions as were pointed out in the reports of previous similar commissions.
The report which is herewith presented is divided into 227 chapters, which is an increase of only 3 chapters over the Public Statutes. It contains 1,904 pages, excluding the chapter of express repeals, as against 1,248 pages in the Public Statutes, excluding the corresponding chapter. This increase of 656 pages indicates the amount of space into which the legislation of nineteen years, covering approximately 6,000 pages in the annual blue books, has been compressed.
Of these chapters, seventeen are upon subjects which have not appeared in any previous revisions, viz. : chapter 19, — Of the Civil Service; chapter 28, — Of Public Parks and Playgrounds; chapter 34, — Of the Manufacture and Distribution of Electricity by Cities and Towns; chapter 45, — Of the Nautical Training School; chapter 47, — Of State Highways; chapter 76, – Of the Registration of Physicians, Surgeons, Pharmacists and Dentists; chapter 83, — Of the Protection of Infants and the Care of Pauper Children ; chapter 84, — Of the State Board of Charity ; chapter 88, — Of the Massachusetts State Sanatorium ; chapter 116, — Of Safe Deposit, Loan and Trust Companies ; chapter 117,- Of Mortgage, Loan and Investment Companies; chapter 119, — Of Fraternal Beneficiary Corporations ; chapter 120, — Of Assessment Insurance; chapter 121, — Of Gas and Electric Light Companies; chapter 126, — Of Foreign Corporations; chapter 128, — Of the Registration and Confirmation of Titles to Land; chapter 144, — Of the Settlement of Estates of Absentees.
In a few instances we have considered it to be our duty to call the attention of the legislature to questions affecting the constitutionality of certain statutes.
Among these is St. 1894, c. 444, § 4, which, almost in the language of Pub. Sts., c. 26, § 13, authorizing a court or trial justice to hold an inquest, authorizes the state fire marshal to hold an inquest. At common law, as well as under the statutes cited in the note to chapter 32 of our report and under other statutes of the commonwealth, inquests have always been regarded as judicial investigations, and the authority to hold them has been vested in judicial officers. As judicial officers cannot constitutionally exercise executive powers, and as executive officers cannot constitutionally exercise judicial powers, it would seem that either the earlier provisions were, or the existing provisions are, unconstitutional. The subject is discussed more at length in the note to chapter 32. A draft of substitute provisions for holding fire inquests has therefore been submitted, which, it is believed, will obviate possible constitutional objections to the existing law, and which will be in harmony with other statutes of the commonwealth without impairing the efficiency of the state fire marshal's department.
Another such act is St. 1897, c. 447, which authorizes the appointment of an executor of the will or an administrator of the estate of an absentee who may, in fact, be alive. Such appointment, if made without actual notice to the absentee, has been adjudged by the supreme court of the United States to be void and in violation of the constitution of the United States. The consequences of such an appointment, if adjudged to be void, might be very serious, and a draft is submitted (c. 144) which, it is believed, will accomplish the desirable purpose sought to be attained by the act of 1897, and avoid the objections which were sustained in Scott v. McNeal, 154 U. S. Rep. 34.
The combination of the Public Statutes and subsequent legislation has necessitated more or less rearrangement and reclassification of the matter of the Public Statutes. An example of this is in the draft of the practice act, Pub. Sts., c. 167. The provisions of this chapter have heretofore been carried forward from their original enactment in St. 1852, c. 312, with but little change and with few additions; but it has been found that much legislation subsequent to 1882, as well as some provisions of other chapters of the Public Statutes which hitherto, apparently from a desire to preserve the practice act substantially in its original form, had been placed elsewhere, properly belong with this chapter, and have accordingly been transferred to it.
There are numerous provisions in the Public Statutes and in subsequent statutes which confer jurisdiction in equity upon the supreme judicial court over matters which are not cognizable under the general principles of equity jurisprudence. In Baldwin v. Wilbraham, 140 Mass. 459, decided after the enactment of St. 1883, c. 223, which conferred jurisdiction in equity upon the superior court, concurrent with the supreme judicial court, it was held that the act of 1883 did not confer upon the superior court certain special powers which were possessed by the supreme judicial court, and which were not within the general jurisdiction of a court of equity. One of these was contained in Pub. Sts., c. 27, § 129, by which, upon petition of ten taxable inhabitants of a town, the supreme judicial court might restrain a town from an illegal expenditure of money. Jurisdiction of this particular subject, as well as of others, was extended by St. 1891, c. 293, to the superior court. In drafting such provisions, the general rule laid down in Baldwin v. Wilbraham has been followed, except in cases to which, from the subject matter or from subsequent legislation on kindred subjects, it seems now to be inapplicable.
Attention is called to the schedule of general regulations for pilotage annexed to St. 1862, c. 176. Section 17 of the statute enacted that commissioners of pilots and certain other persons might recommend to the governor and council changes of the pilotage regulations, which, if approved and proclaimed in the manner therein provided, had the force of law. This section was repealed by St. 1869, c. 236; but, while it was operative, orders were adopted in compliance with its provisions, some of which are printed with the acts and resolves of 1864, p. 435 ; 1865, p. 851 ; 1867, p. 876. The section and orders adopted under it were held valid in Martin v. Witherspoon, 135 Mass. 175. This schedule has never been repealed, it being excepted in Pub. Sts., c. 224, from the repeal of the remainder of the act, and it was not reprinted with the Public Statutes because it was regarded as local and special; but, since it continues in force, as modified by said orders and by subsequent acts, it is worthy of consideration whether it and its amendments should not be made more accessible by being reprinted with the acts and resolves of the current year, or otherwise.
The violation of numerous penal statutes is punishable by imprisonment in jail, of others, by imprisonment in the house of correction, and of still others, by imprisonment either in the jail or house of correction. Inasmuch as by Pub. Sts., c. 215, § 3, and by St. 1882, c. 241, § 1, either place of imprisonment may be substituted for the other, the specific mention of the place of imprisonment has been omitted as superfluous and misleading in all cases in which the maximum sentence is under two and one-half years. If the length of the sentence equals or exceeds that period, which, by St. 1895, c. 504, is the length of the minimum sentence to state prison, the specification of the place of imprisonment has been retained in order to guard against the possibility of a sentence to state prison. In some penal statutes the maximum amount of the penalty has been unlimited. These, as well as statutes which have prescribed punishment in the state prison for periods which are shorter than the minimum period for which imprisonment therein is permitted by St. 1895, c. 504, have been indicated in the notes to the several chapters.
Changes of language have been necessary in combining different statutes upon the same subject, but great care has been taken not to change the meaning. We have also sought to avoid the use of such words in a series as might or might not be synonymous, such, for instance, as “ land,” “ real estate and 66 premises,” in which case, if the context admitted, the word " land” has been used uniformly.
The syllabus at the beginning of each chapter has been much condensed in order to economize space, and because it is believed that it is not often used and that the running side notes of the sections are generally relied upon for finding a particular provision.
The report has been divided into titles, chapters and sections, “upon the basis, plan and general form and method of the Public Statutes.” It is to be observed, however, that in the Revised Statutes of the United States and in the revisions of many other states the sections are numbered consecutively throughout. The expediency of adopting such consecutive method of numbering is submitted to the consideration of the legislature. It is believed that the objection to that method by the commissioners upon the revision of the statutes in 1836, that it has the practical inconvenience of employing very high numbers and thus multiplying the chances of error in one or more of the figures ” in citation, would be more than counterbalanced by the advantage of indexing by sections instead of by pages.
It has not been adopted in this report because, even if such method were in conformity with the provisions of the resolve quoted above, the addition or rejection of a section would derange the numbering of all the following sections.
In the interpretation of statutes, great assistance has been obtained by consulting earlier enactments from which existing provisions have been derived ; and, that this assistance may be available to those who examine the report, historical citations have been made in the margin of each section which trace it to its source. The most important decisions of the supreme judicial court upon the construction of the statutes have been cited through volume 176 of the Massachusetts reports. The opinions of the attorneygeneral have also been consulted and cited. These opinions have been found valuable and instructive, and are the only official interpretation of statutes which have not been construed by the court.
No statutes of the year 1901 have been included. The text of nearly all of this report was in type before they were passed, and the incorporation of a part of them only would leave the work incomplete.
It will be noticed that some recommendations in the notes have, as the result of legislation of 1901, been rendered superfluous; but such notes
were in type before the changes were made, and could not, for typographical reasons, well be omitted.
A chapter of express repeals of the acts which have been consolidated and arranged and a table of the disposition of the existing statutes in the report have been prepared.
Very valuable and faithful assistance has been rendered to the commission by John H. Peck, Esq., and by Miss A. M. Fickett. Various state officers have contributed important suggestions and aid in matters within their respective departments, and every facility has been promptly extended to us by the state printers.
FRANCIS W. HURD.
BOSTON, April, 1901.