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annual State elections for periods of five years. The statute provides for the filling of vacancies, in general, by election at the annual State election following the vacancy. Its present form is as follows (R. L., c. 11, § 277) : —
Upon a failure to choose a district attorney, clerk of the courts, register of probate and insolvency or sheriff, the governor shall cause precepts to be issued to the proper officers, directing them to call meetings of the voters on the day appointed therein, for the election of such officer.
Upon a vacancy by removal or otherwise in any of the above-named offices, he shall in like manner cause precepts to be issued for an election to fill such vacancy at the next annual state election for which precepts can be seasonably issued.
... Upon a vacancy in the office of clerk of the courts in any county, or of the clerk of the supreme judicial court in the county of Suffolk, the justices of said court may appoint a clerk who shall hold the office until a clerk is elected and qualified.
Upon a vacancy in the office of a clerk of the superior court in the county of Suffolk, the justices of said court may appoint a clerk.
The first question is, whether in the last two clauses of this section a distinction is made in the manner of filling the vacancy in the office of the clerk of the Superior Court and the manner of filling a vacancy in the office of clerk of the Supreme Judicial Court in Suffolk County. This part of the section appears in the Public Statutes as follows (P. S., c. 159, § 7):
If a vacancy occurs in the office of clerk of the courts in any county, or of the clerk of the supreme judicial court in the county of Suffolk, the justices of said court or a majority of them may appoint a clerk, who shall hold the office until the next annual election, or until another is elected or appointed in his stead. Upon a vacancy in the county of Suffolk in the office of a clerk of the superior court, the justices of that court shall in like manner appoint a clerk for a similar term.
In my opinion there is no intention manifested in the compilation of this statute into the section of the Revised Laws above quoted to change the provisions of the Public Statutes. A vacancy in the office of a clerk of the Superior Court is to be filled in the same manner as a vacancy in the office of clerk of the Supreme Judicial Court in Suffolk County. See also St. 1890, c. 423, §§ 190, 250; St. 1893, c. 417, § 218; St. 1898, c. 548, § 315.
The remaining question is, whether the clerk of the Superior Court of Suffolk County for civil business is a "clerk of the courts," within the fair meaning of this statute. If not, there is no authority for issuing a precept for an election to fill a vacancy
in his office, and the vacancy must be filled at the next quinquennial election.
In each county other than Suffolk there is one officer who is clerk of both the Supreme Judicial Court and the Superior Court. He has always been designated as "clerk of the courts." In Suffolk County there are three clerks, one for each of the three county courts; each is clerk of one of the courts and is a clerk of the courts; no one of them is, to speak with the utmost strictness, "clerk of the courts."
It may be argued that the Legislature has distinguished between the ancient and well-defined office of "clerk of the courts" and the special offices in Suffolk County of more restricted jurisdiction and authority, namely, the clerk of the Supreme Judicial Court and the two clerks, the one upon the civil and the other upon the criminal side of the Superior Court; that in the former case a specific provision has been made for a special election, while in the latter case such specific provision has been omitted.
Since, however, the phraseology of the Revised Laws is open to different meanings, and no reason can be suggested why the Legislature should have intended such a distinction in the manner of filling vacancies in Suffolk County, it is proper to trace the history of this statute, in order to discover what the intention of the Legislature is.
Throughout the several codifications of the statute, including the General Statutes of 1860, the same ambiguity of language is present, but in the original enactment of 1856 the meaning is clear that a vacancy in Suffolk County is to be filled exactly as in the other counties.
St. 1856, c. 173: —
SECT. 2. At the annual election in November, in the year one thousand eight hundred and fifty-six, and at the annual election in November of every fifth year thereafter, the legal voters of the several cities and towns in each county, excepting in the county of Suffolk, shall choose by ballot for their respective counties, a clerk, who shall act as clerk of the supreme judicial court, and the court of common pleas, within and for the county for which he shall be chosen; and at the same time the legal voters of the county of Suffolk shall choose by ballot for said county of Suffolk, a clerk of the supreme judicial court, a clerk of the superior court, and a clerk of the municipal court of said county.
SECT. 9. In case a vacancy shall, from any cause, occur in the office of any of the clerks of courts herein before mentioned, the judges of the said several courts, or a majority of the same, may appoint a suitable person to fill such office, who shall hold the same until the annual election in November next thereafter, or until another is chosen or ap
pointed in his stead; and at said annual election next thereafter, an election by ballot shall be had, to fill said office for such unexpired term as may exist, in the same manner as is hereinbefore provided for the election of said clerks.
These sections, together with the amendment of St. 1859, c. 196, § 9, making a civil and a criminal division of the Superior Court in Suffolk County, were codified in the General Statutes of 1850, as follows (Gen. St., c. 10):
SECT. 3. In the year eighteen hundred and sixty-one and every fifth year thereafter, there shall be elected by the voters in the county of Suffolk, a clerk of the supreme judicial court for said county, and two clerks of the superior court for said county, one for the civil, and one for the criminal, business, and by the voters in each of the other counties a clerk of the courts for the county, who shall act as clerk of the supreme judicial court, the superior court, and the county commissioners. Such clerks shall hold their offices for five years from the first Wednesday of January following their election, unless sooner removed as provided by law.
SECT. 10. If on the days aforesaid there is a failure to elect a districtattorney, clerk of the courts, register of probate and insolvency, sheriff, or commissioner of insolvency, in any district or county, the governor shall by proclamation declare such failure and order a new election to be had on such day as he shall appoint, and shall continue so to order such elections until a choice is effected.
SECT. 13. If a person elected to either of the offices mentioned in section ten is removed therefrom, or otherwise vacates the same, an election to fill such office for the remainder of his term shall be ordered by the governor, and shall be had on the Tuesday next after the first Monday of November.
The difficulty arises from the fact that section 13 refers to a vacancy in one of the offices mentioned in section 10, in which the phrase is "clerk of the courts," instead of section 3, which enumerates specifically the three clerks in Suffolk County as well as the clerks in the other counties. This reference to a vacancy in the office of a clerk of the courts was not, in my opinion, an intentional exclusion of the clerks of the Suffolk County courts. By using the general phrase "clerk of the courts" the compilers do not intend thus to change the provisions of the statute of 1856. My opinion is strengthened by the fact that the commissioners. who compiled this revision, in their note upon this chapter, commented upon a change which they made in section 13, and were silent as to any alteration of meaning in this respect.
Their note is as follows:
Sect. 13. The act of 1856, chapter 173, provides for appointments to fill vacancies, and that the persons appointed shall hold until the annual election in November next thereafter, or until another is chosen or appointed. It then provides that an election shall be had to fill the vacancy at "the said annual election thereafter." As a vacancy may occur so near the time of the annual election that it would not generally be known, the commissioners have provided that the vacancy shall be filled at the time of the annual election without confining it to the next one, and that warrants therefor shall be issued.
Very truly yours,
I therefore advise Your Excellency that it is your duty, under the statutes, to cause a precept to be issued for an election to fill this vacancy at the next annual State election for which such precept can be seasonably issued.
I am, with great respect,
HERBERT PARKER, Attorney-General.
Marine Insurance Automobile.
An automobile may, within the provisions of R. L., c. 118, § 29, be insured against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland navigation and transportation, whether such automobile is being transported upon a railroad car or a vessel, or upon its own wheels.
Ост. 8, 1904.
Hon. FREDERICK L. CUTTING, Insurance Commissioner.
DEAR SIR: Your letter of August 24 requests my opinion whether an insurance company, domestic or foreign, authorized to transact the business of marine insurance in this Commonwealth, may issue a policy of insurance on an automobile, under a marine form of policy instead of on the Massachusetts standard form of fire insurance policy.
Section 29, chapter 118 of the Revised Laws provides that a company duly authorized to transact the business of marine insurance may "insure upon the stock or mutual plan vessels, freights, goods, money, effects, and money lent on bottomry, or respondentia, against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland navigation and transportation."
The Legislature has prescribed no standard form of marine insurance policy. The form used by the company in question provides as follows:
Touching the adventure and perils which the said company is contented to bear and take upon itself in this voyage, they are of the seas, fire, barratry of the master (unless the insured be an owner of the ves
sel) and of the mariners, and all other losses and misfortunes which have or shall come to the damage of the said property or any part thereof, to which insurers are liable by the rules and customs of insurance in Boston, subject to the conditions and provisions contained or referred to by clauses in this policy.
To the marine form of policy is attached a rider insuring the automobile within the limits of the United States, including while in building, on road, ferry or inland steamer, or on a coastwise steamer bound from a United States port to a United States port, covering loss or damage to the automobile caused by fire, also covering, while on board railroad cars, against the risk of fire and derailment of the cars only, and while on board steamers against marine perils only (including fire).
I am of opinion that an automobile may be thus insured against the perils of the sea and other perils usually insured against by marine insurance, including risks of inland navigation and transportation, whether the automobile is being transported upon a railroad car, a vessel, or upon its own wheels.
Very truly yours,
HERBERT PARKER, Attorney-General.
Charles River Basin Commission-Removal of Craigie Bridge — Taking.
Under the provisions of St. 1903, c. 465, providing that the Charles River dam, the construction of which is authorized thereby, "shall occupy substantially the site of the present Craigie bridge, which shall be removed by the commission," the Charles River Basin Commission is not required to make a taking of the existing bridge before proceeding with its removal.
Ост. 8, 1904. Hon. HENRY S. PRITCHETT, Chairman, Charles River Basin Commission. DEAR SIR-Your letter of September 23 requests my opinion as to whether or not it will be necessary for you to make a taking of Craigie bridge across the Charles River in order to carry out the work which you are authorized to do by St. 1903, c. 465. Section 3 of that act provides that the Charles River dam “shall occupy substantially the site of the present Craigie bridge, which shall be removed by the commission." Craigie bridge is a portion of the public highway, and as it now exists was built by commissioners under St. 1873, c. 199, the expense thereof being paid equally by the cities of Boston and Cambridge. The expense of maintenance is also shared equally by those cities. St. 1898, c. 467, § 14.
St. 1903, c. 465, § 3, provides that the Charles River dam shall