Number 10. July 25, 1967

Number 10. July 25, 1967. Honorable Kevin H. White, Secretary of the Commonwealth Dear Secretary White: — You have asked for my opinion on whether you should accept for filing under G. L. c. 1 80 the Articles of Organization of a corporation to be known as Fraternal Order of Eagles, John Adams Aerie, No. 1 180, the stated purposes of which are: "To unite fraternally for mutual benefit, protection, improve- ment, social enjoyment and association, generally all persons of the Caucasian race, of good moral character, who believe in a Su- preme Being; to inculcate the principles of Liberty, Truth, Justice and Equality; to perpetuate itself as a Fraternal Organization, and to provide for its government, as the laws, by-laws, rituals, or other organization rules and regulations may from time to time provide. Said Aerie being incorporated in conformity with, sub- ject to and under the jurisdiction and control of the laws of the Fraternal Order of the Eagles." (Emphasis supplied.) You state that: ". . . It would seem that public policy would dictate that the Com- monwealth of Massachusetts would have a right to question whether or not a charter should be issued to an organization with a purpose clause as set forth in their articles of organization. Past court decisions, however, regarding the functions of the Secretary of State's Office would seem to indicate that this office cannot re- fuse to issue a charter to this organization." Assuming that all the requirements for incorporation have been satisfied, it is my opinion that your understanding of the law is correct. General Laws c. 1 80, § 2 provides that corporations organized under that chapter shall, among other requirements, be formed in the manner prescribed in and sub- ject to G. L. c. 1 56, §11, which provides: "The articles of organization and the agreement of association shall be submitted to the secretary who shall examine them and who may require such amendment thereof or such additional in- formation as he deems necessary. If he finds that the provisions of law relative to the organization of the corporation have been complied with, he shall endorse his approval on the articles. Thereupon, the articles shall, upon payment of the fee provided by section fifty-three, be filed in the office of the state secretary." (Emphasis supplied.)* It is settled that the approving authority under G. L. c. 156, § 31 has only an administrative function to perform. As stated in Arnold v. Commis- sioner of Corporations and Taxation, 327 Mass. 694, 701 : "The duties imposed upon the commissioner [now the Secre- tary of State] by G. L. (Ter. Ed.) c. 1 56, § 11, are not discretion- ary but are limited to the administrative function of certification according to law." "St. l'J62, c. 750, <; 17 amended this section to its present form hy substituting the Secretary of State for the Commissioner of Corporations and Taxation as the approving authority. 52 P.D. 12 This limitation has been held to preclude the approving authority from withholding his approval because of his personal opinion of the undesirabil- ity of the proposed organization. Elmer v. Commissioner of Insurance, 304 Mass. 194, 197. in relation to corporations organized under c. 180, when you receive a report from the Commissioner of Public Welfare approving the articles of organization and containing findings of fact as to the purposes of the corporation, the present need therefor and the suitability of the appli- cants, you "shall accept the findings of fact. . . ." G. L. c. 1 80, § 6. Thus there is no room for you to substitute your own judgment for that of the Commissioner. I have considered the possible application of the Civil Rights Act of 1964, 42 U.S.C. § 2000(a), et seq., as well as the provisions of our G. L. c. 272, § 92A. The first of these statutes, however, does not extend to a pri- vate club or other establishment not in fact open to the public, except to the extent that the facilities of such establishment are made available to the cus- tomers or patrons of an establishment that is a place of public accommoda- tion. 42 U.S.C. § 2000(a) (e). General Laws c. 272, § 92A is similarly lim- ited in scope. Nor does the United States or Massachusetts Constitution, as thus far interpreted by the highest courts, prohibit the chartering of a pri- vate club or similar institution having membership limitations of the kind in question. Accordingly, however understandably offensive the restriction in the Ar- ticles of Organization before you may be, it is my opinion that under exist- ing law, if you have received from the Commissioner of Public Welfare the required approval and findings of fact, and if the other requirements for or- ganizing a corporation under c. 1 80 have been satisfied, you must approve the proposed articles of organization pending before you. Very truly yours, Elliot L. Richardson, Attorney General Number 1 1. July 25, 1967. Honorable Charles N. Collatos, Commissioner of Veterans' Services Dear Commissioner Collatos: — You have requested my opinion re- garding your rights and obligations as Commissioner of Veterans' Services in a matter before the Governor and Council. You state that "The Commissioner of Veterans' Services for the City of Somerville' granted benefits in excess o£ the standard budget, and reim- bursement was denied under Section 6, Chapter 115" of the General Laws which states in pertinent part: ". . . The Commissioner [of Veterans' Services of the Common- wealth of Massachusetts] may decide upon the necessity of the amount paid in each case, and may allow any part thereof which he deems proper and lawful. . . ." The Somerville agent then requested a hearing before the Governor and Council. The position of Commissioner of Veterans' Services for the C ity of Somerville is similar to that commonly known as Veterans' Agent in other communities. P.D. 12 53 You further state that "Although there is no authority in the statutes to permit a hearing in such a situation, one was scheduled. Two members of the Commissioner's staff did attend to explain the matter and to request a dismissal. The Council, through one of its members, requested a personal appearance of the Commissioner to personally explain the Directives that are promulgated and issued." In concluding your letter, you request my opi- nion as to your "position and attendance in a matter that is not properly be- fore the Council and one in which [you] have sole powers and discretion under the law." It is my understanding that you did, however, appear before the Council and that the matter in question was disposed of without formal action of any kind by the Council, thus rendering the circumstances outlined in your re- quest for my opinion moot and hypothetical. In an opinion dated February 14, 1935, Attorney General Paul A. Dever defined the settled practice relative to the issuance of formal opinions by the Attorney General. He said: "The long-continued practice of this department and the prece- dents set by my predecessors in office indicate, what is undoubt- edly the correct rule of law, that it is not within the province of the Attorney General to determine hypothetical questions which may arise, as distinguished from questions relative to actual states of fact set before the Attorney General, upon which states of fact public officials are presently required to act; nor is it the duty of the Attorney General to attempt to make general interpretations of statutes or of the duties of officials thereunder, except as such interpretations may be necessary to guide them in the perform- ance of some immediate duty." Attorney General's Report ( 1 935) p. 3 1 . Attorney General Dever concluded with a statement as applicable to the Department of the Attorney General today in 1 967 as it was in 1 935: "The members of this department are always at your service for consultation and assistance with reference to the work of your Commission, but for the foregoing reasons I may not properly, in a formal opinion, comply with the request contained in your let- Very truly yours, Elliot L. Richardson, Attorney General