Number 4 August 9, 1972

Number 4 August 9, 1972 Henry Clay, Esquire Executive Secretary Governor's Council State House Boston, Massachusetts 02133 Dear Mr. Clay: You have requested my opinion concerning a second pro tanto award for an eminent domain taking made by the Commonwealth's Depart- ment of Public Works. From the facts recited in your letter, it appears that on June 16, 1971 the Department approved a pro tanto award for a taking in the City of Peabody. That award, which included apportioned taxes and interest, totalled $55,582.72. On June 24, 1971, the Department's order of taking was recorded with the Essex County Reg- istry of Deeds (Book 5777, page 309), and thereafter, on August 19, 1971 the award was accepted by the property owners. Because the Massachusetts Department of Community Affairs did not approve the relocation plan for the project for which the taking was made until June 1971 and because the original appraisals were made dur- P.D. 12 47 ing the period September through November of 1970, the Department of Public Works determined that a review of the original appraisals was in order. That review resulted in two new appraisals, and. on April 12, 1972, the Department of Public Works voted an increase of $11,000.00 over and above the original pro tanto award. Payment of that sum is now before the Council for its approval, and you ask, on behalf of the Council, whether the second payment may be made in the light of the provisions of G. L. c. 79, § 6. For the reasons stated hereinafter, I con- clude that approval and payment of a second pro tanto award would vio- late section 6, and I answer your question in the negative. General Laws, c. 79, § 6 provides in part: "Such award [a pro tanto award] may be amended by said board of officers at any time prior to the payment thereof by reason of a change in ownership or value of said property before the right to damages therefor has become vested or for other good cause shown." (Emphasis supplied.) In the instant case, an amendrhent to the award could have been made by the Department "at any time prior to the payment thereof," which date was August 19, 1971. On that date, the Department's power to amend was lost, and the Department could not at a subsequent time take administrative action based on the evidence of change of value dis- covered as a result of the two new appraisals on November 18, 1971 and February 2, 1971. What I have said does not leave the original owners without a remedy should they have a valid claim to additional damages. General Laws, c. 79, § 14 provides that even in the face of an award under section 6, a party "may petition for assessment of such damages to the superior court of the county in which the property taken or injured was situated." Very truly vours, ROBERT H. QUINN Attorney General Numbers August 21, 1972 Mrs. Helen C. Sullivan Director of Registration Leverett Saltonstall Building 100 Cambridge Street Boston, Massachusetts 02202 Dear Mrs. Sullivan: The State Examiners of Electricians, through you, have requested my opinion whether the inspector of wires appointed by a city or town pur- suant to G. L. c. 166, § 32, must be a licensed master or journeyman electrician. For the reasons expressed herein, I answer your question in 48 P.D. 12 the affirmative with respect to individuals appointed by a city and those appointed by towns which have accepted the provisions of G. L. c. 31 relating to civil service. With respect to wire inspectors appointed by towns which have not accepted the provisions of said chapter 31,1 an- swer your question in the negative. General Laws, c. 141, § 1, provides in part: "No person, firm or corporation shall enter into, engage in, or work at the business of installing wires, conduits, ap- paratus, fixtures or other appliances for carrying or using electricity for light, heat or power purposes, unless such per- son, firm or corporation shall have received a license and a certificate therefor ..." (Emphasis supplied.) Said section defines a master electrician as one having a regular place of business who, by the employment of journeymen, learners and ap- prentices, performs the work of installing wires, conduits, apparatus, fixtures and other appliances for light, heat or power purposes. "Jour- neyman electrician" is defined as a person qualified to perform electrical work. Section 3 of c. 141 declares that the master electrician's license shall be known as "Certificate A," and the journeyman's license as "Certifi- cate B." Subdivision (1) of said section provides that Certificate A shall be issued to any person engaging in the business of installing electrical wires or appliances; however, the possession of said certificate does not entitle the holder individually to perform the work, but rather entitles him to conduct business as a master electrician. Subdivision (2) provides that Certificate B shall be issued to any person passing the examination given by the State Examiners of Electricians, and authorizes the holder to engage in the occupation of a journeyman electrician. It appears, therefore, that the Legislature, desiring to preserve and protect the pub- he safety, requires a master's license of one engaging in the electrical business and hiring others to do the work, and a journeyman's license of those hired to do the work. General Laws, c. 166, § 32, which provides for the appointment of wire inspectors and prescribes their duties, provides in part: "A city shall, by ordinance, designate or provide for the appointment of an inspector of wires, and a town shall pro- vide by vote or by by-law for the appointment by its select- men of such an inspector . . . Such inspector shall supervise every wire over or under streets or buildings in such city, town or district and every wire within a building designed to carry an electric light, heat or power current; shall notify the person owning or operating any such wire whenever its at- tachments, insulation, supports or appliances are improper or unsafe, or whenever the tags or marks thereof are insufficient or illegible; shall, at the expense of the city or town, remove every wire the use of which has been abandoned, and every wire not tagged or marked as hereinabove required, and shall P.D. 12 49 .v('(^ that (ill laws a ml rci^iiUidoiLs relative to wires are strictly enforced ..." (Emphasis supplied.) There is no express requirement in section 32 that the individual ap- pointed pursuant to said section be a licensed master or journeyman electrician. It should be noted that it was not until St. 1945, c. 529, that towns were required to appoint wire inspectors. Prior to the enactment of that statute, the words "inspector of wires" were stated to mean "the selectmen" in those towns which did not have a wire inspector.' Obvi- ously, a selectman would not necessarily be an individual experienced in electrical matters. Had the Legislature intended to narrow by statute the class of individuals from which a town could appoint a wire inspector, it would have so stated. Moreover, the duties imposed by c. 166, § 32 upon a wire inspector do not entail the installation of "wires, conduits, apparatus, fixtures or other appliances for carrying or using electricity for light, heat or power purposes." The power of a wire inspector to "remove" abandoned wires or wires not properly tagged or marked does not, in my opinion, constitute that type of electrical work for which a master's or journeyman's license is required. However, notwithstanding the foregoing, a city or town is required to appoint a master or journeyman electrician as its inspector of wires if said position is subject to the laws of the Commonwealth relating to civil service. General Laws, c. 31, § 12B provides: "No applicant for the position of inspector of wires shall be certified by the director of civil service for such position un- less he shall first have had issued to him, under the provisions of section three of chapter one hundred and forty-one, 'Cer- tificate A" or 'Certificate B'." Thus, the resolution of your question depends upon whether or not the position of inspector of wires is a civil service position. At this point it is necessary to separate your question so as to distinguish between wire inspectors appointed by cities and those appointed by towns. Paragraph one of G. L. c. 31, § 47, provides: "'This chapter shall he in force with respect to the official and labor service in all cities of the conunonwealth of one hundred thousand or more inhabitants, whether or not such cities have accepted this chapter or corresponding provisions of earlier law. This chapter shall he in force in all cities of the commonwealth of less than one hundred thousand inhabit- ants with respect to the official service and shall be in force with respect to the labor service in cities of less than one hundred thousand inhabitants which have accepted the cor- responding provisions of earlier laws or accept the pertinent ' Simihii liingu.ige iippe;iis in cxisunj; ^lilHltc^ noluiih\t;indinj; § 32 which icqiiircs wire inspcclois. See. e.g.. c. 166. § 50 P.D. 12 provisions of this chapter by vote of the city council." (Em- phasis supplied.) It is clear from c. 31, § 47, that with respect to "official service" the provisions of chapter 31 are applicable to all cities of the Commonwealth whether or not said cities have accepted the provisions of the chapter. "Official service" is defined in c. 31, § 1 as "positions placed in such service under the rules of the commission." I have been advised by the Commission that the position of inspector of wires has been designated as official service.^ In the light of c. 31, §§ 12B and 47, and the Commission's designation of the position of inspector of wires as "offi- cial service," I conclude that wire inspectors appointed by cities must be either licensed master or journeymen electricians. Whether or not an individual appointed by a town must be a licensed master or journeyman electrician depends upon whether the town has accepted the provisions of chapter 31. On this point, I need only refer you to the second paragraph of c. 31, § 47, which sets forth the manner in which towns accept the provisions of chapter 31. Finally, with respect to those towns which have not accepted the pro- visions of chapter 31,1 conclude that the individual appointed as wire inspector need not be a licensed master or journeyman electrician. It should be emphasized that this opinion does not authorize a wire inspec- tor to perform electrical work without a license, but rather only indicates my opinion that the duties of a wire inspector as set forth in c. 166, § 32 do not constitute electrical work for which a license must be obtained. Very truly yours, ROBERT H. QUINN Attorney General