Number 11. November 12, 1976

Number 11. November 12, 1976 Dr. William E. Perrault Executive Director Massachusetts State Lottery Commission 15 Rockdale Street Braintree, Massachusetts 02184 Dear Dr. Perrault: You have requested my opinion regarding the following question: Does Section 38 of Chapter 10 of the General Laws require that an organization have been in existence as a "[fraternal] organiza- tion organized under the provisions of Chapter 180" for five years prior to its application for a Beano license, or is it enough that the organization be organized under Chapter 180 at the time the license is granted so long as the organization has been in existence for at least five years? I am of the opinion that as long as a fraternal organization is organized under the provisions of G.L. c. 180 at the time it applies for a beano license and has been in existence for at least five years immediately prior to the date of its application, it may be granted a license under the pro- vision of G.L. c. 10, §38. My reasons are as follows. G.L. c. 10, §38, describes several types of organizations which can apply for and obtain a license from the State Lottery Commission to con- duct the game of beano. 1 All of the organizations are compatible with the purpose of §38, which is to provide "funds to be used exclusively for educational, charitable and religious purposes." See 1973 H. Doc. No. 7156. Specifically, a "fraternal organization organized under the provisions of chapter one hundred and eighty [of the General Laws]," which your question to me concerns, meet this statutory purpose: Chapter 180 governs the incorporation and existence of corporations devoted to charitable and certain other purposes (see G.L. c. 180, §§1 et seq.); by requiring that a domestic fraternal organization be organized under its provisions, the Legislature has ensured that any funds provided by beano will be used only for the purposes G.L. c. 10, §38, is intended to advance. Compare G.L. c. 180, §4. iG.L. c. 10, §38, reads, in relevant part, as follows: Any fraternal organization having chapters or branches in at least one other New England state, or any fraternal organization organized under the provisions of chapter one hundred and eighty, any religious organization under the control of or affiliated with an established church of the Common- wealth and any veterans' organization incorporated or chartered by the Congress of the United States or listed in clause (12) of section five of chapter forty, any volunteer, non-profit fire company or similar organization furnishing public fire protection, any voluntary association for promotion of the interests of retarded children, the Boston Firemen's Relief Fund, any volunteer, non-profit organization furnishing a pubiic ambulance service, and non-profit athletic associations, desiring to operate or conduct the game commonly called beano, or substantially the same game under another name, in connection with which prizes are offered to be won by chance, may upon application to the state lottery commission be granted a license to conduct said game in a city or town which has voted to allow granting of licenses for the operation, holding or conducting of said game therein; provided, that the application of such organization is in the case of a city, other than the city of Boston, approved by the majority of the city council and approved by the mayor, in a town by the board of selectmen, and in the city of Boston by the licensing board for said city; and provided further, that such organization has been in existence for at least five years immediately prior to the date of making application for such license. P.D. 12 105 By its direct terms, the statutory language "any fraternal organization organized under the provisions of chapter one hundred and eighty," appears to demand only that such an organization be incorporated under that chapter at the time it applies for a beano license; the language does not look to the status of the organization in the past. There is however, a proviso at the end of the first paragraph of §38 which requires all of the organizations referred to previously in that section to have "been in existence for at least five years prior to the date of making application for [a beano] license." It is the relationship of this provision to the earlier statutory description of a fraternal organization that forms the basis of your opinion request. The proviso must be read as a limitation or restriction on the right of the several specific types of organizations mentioned in §38 to apply for and receive beano licenses. 2 See, e.g., Sears v. Child, 309 Mass. 337, 345- 346, (1941); Attorney General v. City of Methuen, 236 Mass. 564, 573 (1921). However, it is a cardinal rule of statutory interpretation that " 'where a provision general in its language and objects, is followed by a proviso . . . the proviso is to be strictly construed, as taking no case out of the provision that does not fall within the terms of the proviso, the latter being understood as carving out of the provision only specified exception, within the words as well as within the reason of the former.' " Opinion of the Justices, 254 Mass. 617, 620 (1926) (quoting from Endlich, Interpre- tation of Statutes, page 742). Strictly construing the proviso at the end of the first paragraph of §38, I have concluded that this clause does not prohibit a fraternal organization organized under the provisions of G.L. c. 180 for less than five years from receiving a beano license as long as it has had a bona fide existence in some other form of organization for the five years immediately preceding its license application. The five year "existence" requirement of the pro- viso appears to represent a legislative effort to insure that an organization not be created for the sole and immediate object of holding beano games. Such a purpose would not be further aided, however, by requiring in addition that the organization be organized under G.L. c. 180, for five years. Indeed, such a construction of the proviso would be contrary to the stated purpose of §38 as a whole to "provide forthwith funds to be used exclusively for educational, charitable and religious purposes" (emphasis supplied). 1973 H. Doc. No. 7156, supra. A construction of statute that is contrary to its stated intent should not be adopted. See, e.g., Common- wealth v. Lamb, 365 Mass. 265 (1974). Very truly yours, FRANCIS X. BELLOTTI A ttornev General -See also the penultimate clause of §38. first paragraph, which sets forth another qualification on an organization's ability to obtain a beano license. 106 P.D. 12