Number 6 August 5, 1970

Number 6 August 5, 1970 Honorable Nathan Chandler Commissioner of Ai^ricultnre State Office Building 100 Cambridge Street Boston. Massachusetts 02202 Dear Commissioner Chandler: You have requested my opinion with respect to certain questions aris- ing from the enactment of St. 1969, c. 807 which inserted a new para- graph (g) in G. L. c. 128, § 2. The statute is intended to promote the breeding of thoroughbred horses within the Commonwealth by authoriz- ing the Department of Agriculture to award cash prizes to breeders of qualifying Massachusetts bred thoroughbred horses who win first, sec- ond, or third prize in horse races conducted within the Commonwealth. In your letter you state that certain portions of G. L. c. 128, § 2(g) are "not clear and there is a difference of opinion as to the intent of the law." You have therefore posed the following questions for resolution: ''(•) Does the five per cent prize mentioned in G. L. c. 128, § 2(g) refer to the prize offered by the track or the prize which the breeder of the horse receives from the Department of Agriculture? "(2) Is the five per cent prize awarded to the owner of the stallion who sired the winning horse to be given to the owner at the time ot the winning of a race or to the owner at the time of conception? "(3) Is a foal that is dropped in the Commonwealth, but not conceived in the Commonwealth, considered to be a Massachusetts bred horse and eligible for a prize?'" 42 P.D. 12 Your first and second questions require an interpretation of G. L. c. 128, § 2 which provides, in pertinent part: "The department [of agriculture] . . . shall have power — •k 'k -k "k -k "(g) To aid in the promotion, development and encourage- ment of the breeding of thoroughbred horses, by offering as a prize to the breeder of a Massachusetts bred thoroughbred horse, a cash prize equal to twenty per cent of the first, sec- ond, or third prize according to the position in which said horse officially finished in a horse race conducted in the commonwealth, and a further prize of five per cent of the prize awarded said horse to the owner of the stallion which sired said horse, provided said stallion stands in the commonwealth."' (Emphasis supplied.) The answer to your first question turns on the meaning of the word "prize" as that word is used in G. L. c. 128, § 2(g). It is a familiar canon of statutory construction that where a word occurs twice or more in the same statute its meaning and scope remain unchanged. Booma v. Bigelow-Sanford Carpet Co., 330 Mass. 79, 82; Marcus v. Street Com- missioners of Boston, 252 Mass. 331, 334-335. The word "prize" is first used in G. L. c. 128, § 2(g) in reference to the award made to the breeder of a winning Massachusetts bred thoroughbred horse by the Department of Agriculture. It is my opinion that the five per cent prize in question is a "further prize" and refers to the prize awarded by the Department of Agriculture to the breeder of a Massachusetts thoroughbred horse. Your second question requires a determination of who is an "owner" and thereby entitled to the five per cent prize referred to supra. The Supreme Judicial Court, in discussing the word "owner," has stated: "The word is one of flexible meaning depending upon other language of the particular statute in which it is employed and the puipose and aim of the statute. It varies from an absolute proprietary interest to a mere possessory right." Animal Res- cue League v. Bourne's Assessors, 310 Mass. 330, 333. When an owner sells a stallion which has sired a Massachusetts bred thoroughbred horse, he no longer has a proprietary interest or a posses- sory right in that stallion. The new owner acquires all incidents of own- ership, including, in my opinion, the right to the five per cent prize re- ferred to in G. L. c. 128, § 2(g). Finally, you ask whether a horse which is not conceived within the Commonwealth is eligible for the prize referred to in G. L. c. 128. § 2(g) as a "Massachusetts bred thoroughbred horse." In this connection, I note that the statute makes reference to the place of conception of a qualifying horse as follows: "The stallion shall have been based in the commonwealth at the time of the conception of said foal to the aforemen- tioned mare." G. L. c. 128, § 2(g) (3). P.D. 12 43 There is no language in the statute that can be construed as requiring that conception take place in the Commonwealth. The effect of requiring that conception occur within the Commonwealth would be to supply an additional qualification which the Legislature failed to provide either in- tentionally or unintentionally. In that regard it is a well-established rule of statutory construction that "if the omission was intentional, no court can supply it. If the omission was due to inadvertence, an attempt to supply it . . . would be tantamount to adding to a statute a meaning not intended bv the legislature." Boxlston Water Dist. v. Tahunto Regional Sch. Dist/, 353 Mass. 81. It is therefore my opinion that the statute cannot be construed to re- quire that a horse be conceived in this Commonwealth in order to qual- ify for a prize. Thus, a foal that is dropped in the Commonwealth but not conceived in the Commonwealth, may be considered a Massachu- setts bred horse and eligible for a prize under G. L. c. 128, § 2(g). Very truly yours, ROBERT H. QUINN Attorney General