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Report of the attorney general for the year ending .. (1945) online

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ized the then Commissioners on Fisheries and Game and their deputies to
arrest any person whom they found violating any of the game laws.

Said section 89 stems directly, in like mannin-, from St. 1909, c. 362, § 1,
which in its provisions material to the instant matter is similar to section
89 and empowers and requires public officers in charge of reservations
and lands held for public use, as in section 89, "to enforce" the provisions



70 P.D. 12.

of said chapter 362, which provisions were, as I have pointed out, similar
to those now appearing in section 89.

In 1920 Attorney General Allen, in an opinion to the Department of
Conservation, with which I concur (V Op. Atty. Gen. 628), held that
while St. 1909, c. 362, placed upon those in charge of public lands the duty
of preventing any killing of game within the boundaries of such lands,
whether such killing was or was not done in violation of the game laws, the
duty of enforcing the general game laws on such lands still rested upon
the officers of the Division of Fisheries and Game.

The fact that R. L., c. 91, § 4, and St. 1909, c. 362, have been reenacted
by amendment of the game laws from time to time and their provisions con-
solidated in the reenactment of G. L. (Ter. Ed.) c. 131, in 1941, does not
show an intent upon the part of the Legislature to alter their meaning.
It is rather to be presumed that the Legislature intended to employ them
with the meaning which they originally had. Great Barrington v. Gibbons,
199 Mass. 527, 529. Maiii v. County of Plymouth, 223 Mass. 66, 69.
Commonwealth v. Bralley, 3 Gray 456, 457.

Accordingly, I advise you that the officers of the Division of Fisheries
and Game, referred to in G. L. (Ter. Ed.) c. 131, § 18, as amended, have
the power and the duty of enforcing the game laws on the public lands, in-
cluding those of the Quabbin Reservoir under the control of the Metro-
politan District Commission, and have the right to enter upon such lands
when necessary for the purpose of such enforcement.
Very truly yours,

Clarence A. Barnes, Attorney General.



Constitutional Law — Incompatibility of Offices of Representative and
Member of Governor's Council.

April 30, 1945.

Hon. Frederick B. Willis, Speaker of the House of Representatives.

Dear Sir: — I am in receipt from you of the following communication:

"Will you please advise the members of the House of Representatives
if Carl A. Sheridan who was elected yesterday as Councillor in the 3rd
Councillor District by the House of Representatives and the Senate may
continue to serve as a Representative in the General Court in addition to
discharging his duties as a Councillor, provided he accepts only one salary
— that of Councillor."

I advise you that in my opinion the acceptance by the Representative,
to whom you refer, of the office of member of the Governor's Council and
his qualification as such a Councillor will, as a matter of law, act as a
resignation of his seat in the House of Representatives.

The Constitution of the Commonwealth, chapter II, section III,
provides :

"Article I. There Jshall be a council for advising the governor in the
executive part of the government, ..."

Such council is beyond all doubt a part of the executive department of
the government of this Commonwealth, and as such the exercise of its



P.D. 12. 71

powers is restricted by Article XXX of Part the First of the Constitution,
which reads:

"In the government of this commonwealth, the legislative department
shall never exercise the executive and judicial powers, or either of them;
the executive shall never exercise the legislative and judicial powers, or
either of them; the judicial shall never exercise the legislative and execu-
tive powers, or either of them : to the end it may be a government of laws
and not of men."

It was said bj^ one of my predecessors in office (I Op. Atty. Gen. 233)
that Article 30 of the Declaration of Rights has no application to an indi-
vidual member of the Legislature; that "the limitations of the individual
members of the several departments are carefully guarded by other por-
visions in the Constitution, to wit, c. 6, art. 2, and Amendments, art. 8.
The specific prohibitions contained in the articles quoted would be plainly
unnecessary if art. 30 of the Declaration of Rights was intended to apply
to individuals rather than to departments."

The opinion was to the effect that a senator might lawfully hold the office
of a member of the then Board of Education, which was assumed to be
an office in the executive branch of the government, and was not stated to
be of such a nature by rea^n of its duties as to make it incompatible with
the office of a senator. • '

With this opinion I concur; but it does not follow that because the Con-
stitution has not specifically prohibited the holding of two particular offices
by one incumbent, a single incumbent may occupy both, if the offices are
of such a nature as to be incompatible.

The Constitution has in said chapter VI, article II, and Arnendments,
article VHI, set forth in detail specific provisions prohibiting incumbents
of various offices of the Commonwealth from holding other designated
offices. None of these relate to members of the Executive Council, except
as they prohibit a judge of the Supreme Judicial Court or a judge of pro-
bate from accepting a seat in the Council and prohibit a Councillor from
accepting the office of either of such judges.

Nevertheless, I am of the opinion that if the duties of the oflfices of a
Councillor and a member of the House of Representatives, such offices
being in the executive and legislative departments of the government,
respectively, are incompatible, they may not be occupied by the same
incumbent. See Opinion of the Justices, 307 Mass. 613, 620.

The House of Representatives is by constitutional provision the judge
of the qualifications of its own members (Const, c. I, § III, art. V). How-
ever, the acceptance of an office incompatible with one already held by
an officer works a resignation of the prior office. Commonwealth v. Hawkes,
123 Mass. 525, 529, 530.

In my opinion, the duties of the office of a member of the Executive
Council and that of a member of the House of Representatives are of such
a nature as to render the respective offices incompatible.

As has been said by the Supreme Judicial Court, the framers of our
Constitution, warned by experience of the dangers which had arisen "from
the vesting of incompatible powers in the same persons under the royal
government while this state was an English province, have made most
careful provision for separating the three great departments of govern-
ment" (Ca.se of Supervisors of Elections, 114 Mass. 247, 249), and as it has
been the endeavor of the people of Massachusetts since colonial times to



72 P.D. 12.

guard against the vesting of powers and duties of more than one branch
of the government in a single officer, the assertion of a right to hold offices
in more than one of such branches should always be subject to the most
careful scrutiny.

The duties of the governor of the Commonwealth as the chief executive
officer, having the power of veto and the authority to prorogue and adjourn
the Legislature and to call it together again (Const, c. II, § I, art. IV), are
plainly of such a nature as to render his office incompatible with that of
a member of the House of Representatives- even if the Constitution, c. VI,
art. II, had not prohibited him from holding another office.. The duties of
a councillor are those of an adviser of the governor (Const, c. II, § III,
art. I), and the advice and consent of the council, by legislative enactment,
have been made necessary for the performance of a wide variety of execu-
tive duties by the governor. In a remote but very real sense the councillor's
functions are similar to those of the "governor.

The members of the council share in the governor's power to prorogue,
adjourn and recall the Legislature, in that his power in such respect can
only be expressed when implemented by the advice of the council (Const,
c. II, §' I, art. V). The councillors are required to take their oath of office
''in the presence of the two houses of assembly." The representatives are
required to take their oath of office in the presence of five members of the
council (Const, c. VI, art. I). The Legislature divides the Commonwealth
into districts from which the individual councillors are to be chosen.
Vacancies in the council, when the General Court is in session, are filled by
the Legislature (Const. Amend, art. XXV). The salaries of the councillors
are fixed by the Legislature (G. L. (Ter. Ed.) c. 6, § 3).

These duties, some of which are required to be performed by repre-
sentatives and some by councillors, appear to me to be such that they may
not properly be performed by the same person, since the performance of
each of such duties would either affect the person himself in one or the
other of two capacities or might require him to act in different capacities
at one and the same time.

This being so, the two offices in question are, in my opinion, incom-
patible and may not be held simultaneously by one person.
Very truly yours,

Clarence A. Barnes, Attorney General.



Banks — Credit Unions — Acquisition of Shares of One Credit Union by

Another,

May 1, 1945.
Hon. F. Earl AVallace, Commissioner of Banks.

Dear Sir: — In a recent letter you have advised me as follows:

"The Lynn Police Credit Union, a corporation recently chartered under
General Laws, chapter 171, and now qualified and ready to commence
business, was organized and is now requested to assume the share liabilities
and acquire all of the assets of the Lynn (Mass.) Policeman's Federal
Credit Union, a credit union chartered under the Federal Credit L'nion
Act, U. S. C. A. Title 12, Sections 1751-1770. The members of the two
credit unions are or will be substantially the same. It is expected that all
of the assets of the Lynn (Mass.) Policeman's Federal Credit Union will



P.D. 12. 73

meet the statutory requirements governing investments of shares and
deposits of credit unions incorporated in this State."

In relation to the foregoing facts, you have asked my opinion upon the
following question :

"whether or not a credit union incorporated under General Laws, chapter
171, may assume and undertake to pay the share liabilities of a federally
chartered credit union and in the process purchase and acquire all of the
assets of such a credit union."

G. L. (Ter. Ed.) c. 171, § 10, in its apphcable part provides with regard
to the capital stock of a credit union as follows:

"... Shares of capital stock may be subscribed for and paid for in


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Online LibraryMassachusetts. Office of the Attorney GeneralReport of the attorney general for the year ending .. (1945) → online text (page 9 of 10)