Number 10 July 22, 1975

Number 10 July 22, 1975 Charles J. Dinezio Executive Director State Building Code Commission 141 Milk Street Boston, Massachusetts 02109 Dear Mr. Dinezio: You have requested my opinion relative to an apparent conflict between the State Building Code, which was promulgated pursuant to Chapter 802 of the Acts of 1972, and the provisions of the so-called "Tenement Housing Acts," G.L. c. 144 and c. 145. Chapter 144 deals with tenement houses in cities other than Boston and Chapter 145 applies to tenement houses in towns. Both statutes require local acceptance before becoming effective. Your request does not enumerate specific instances in which the building code and tenement housing acts conflict. Instead you have stated that "there are few matters covered by Chapters 144 and 145 which are not in conflict with the State Building Code." You have asked me to give my opinion as to whether "in all cases of conflict . . . the State Building code takes preced- ence over the Tenement Housing Acts in cities or towns which have adopted them." The Code was not intended to repeal or pre-empt Chapters 144 and 145. Therefore, I am of the opinion that no conflict exists between the Code and P.D. 12 81 the statutes cited and that both are fully operative. I reach this conclusion by applying three standard rules of statutory construction. The first rule is that when two statutes are alleged to be inconsistent with each other, whether in whole or in part, they are to be construed harmoni- ously if possible. See Goldsmith v. Reliance Insurance Company, 353 Mass. 99 (1969). Only where the two statutes cannot be reconciled, will one statute give way to the other. I am of the opinion that the acts in question can both be given effect. The purpose of the tenement housing acts was not to create a comprehensive code but was instead to establish minimum standards for tenement houses. Section 4 of Chapter 144 provides (in language substan- tially similar to that contained in Section 5 of Chapter 145): This chapter shall be held to provide the minimum requirements adopted for the health and safety of the community. Nothing in this chapter shall be construed as prohibiting any city from enact- ing from time to time supplementary ordinances imposing fur- ther restrictions, but no city authority shall have power to mini- mize, avoid or repeal any provision of this chapter. While the tenement housing act merely establishes minimums, and even then only for multiple unit residential real estate, the State Building code provides a comprehensive set of construction rules. Because I am con- strained to interpret the statutes harmoniously, I conclude that, to the extent practicable, tenement houses must conform to both the general requirements of the Code and the specific requirements of Chapters 144 and 145. Where the requirements differ, the stricter of the two must be met. The second rule I have applied is that the implied repeal of one statute by another is not to be lightly inferred. To hold that the State Building code supersedes the tenement housing acts would be the equivalent of a statement that Chapter 802 of the Acts of 1972 repealed those acts. No section of Chapter 802 explicitly repeals them, and I find no implied repeal of the tenement acts in Chapter 802. The doctrine of implied repeal is not a favored doctrine. The test of its applicability is whether the earlier statute is so repugnant to and inconsistent with the later enactment that both cannot stand. In re Gregoire, 355 Mass. 399 (1969). A system whereby multiple unit residences are subject to two sets of regulations does not necessarily amount to repugnancy and inconsistency. The two bodies of regulation could well be mutually reinforcing. In the absence of any specific allegations of repug- nancy, I decline to invoke the doctrine of implied repeal. The third maxim of statutory construction which leads me to the conclu- sion that Chapters 144 and 145 continue in effect is the rule that the expres- sion of one thing is the exclusion of another. See General Electric Co. v. Commonwealth, 329 Mass. 661 (1953); Richard T. Green Co. v. City of Chelsea, 149 F.2d 927 (1st Cir. 1947). In enacting Chapter 802 the Legisla- ture expressly repealed more than fifteen sections of General Laws Chapter 143 which dealt with the inspection and regulation of buildings. The subject matter of Chapters 143, 144 and 145 is substantially the same, and there is a natural association of the ideas contained in those statutes. Thus, if the Legislature had intended to repeal Chapters 144 and 145 it could have done so explicitly, not by implication. I therefore conclude that there is no legisla- 82 P.D. 12 tive intent to repeal Chapters 144 and 145 manifested in Chapter 802 of the Acts of 1972. Section 75 of Chapter 802 of the Acts of 1972 (as amended by Section 20 of the Acts of 1974) which states that all "... by-laws and ordinances of cities and towns or any special acts in conflict with the State Building Code shall cease to be effective . . ." does not require a contrary result. The acceptance of a statute is accomplished by G.L. c.4, § 4 and is neither a by- law, ordinance, or special act. For the foregoing reasons, I conclude that there is no overall conflict between the statutes. Very truly yours, FRANCIS X. BELLOTTI Attorney General