Court: APPEALS COURT OF MASSACHUSETTS
Citation: 18 Mass. App. Ct. 17
Parties: MURRY G. SIMON & others1
vs. STATE EXAMINERS OF ELECTRICIANS.
County: Suffolk
Hearing Date: December 17, 1982
Decision Date: April 23, 1984
Judges: PERRETTA, ROSE, & DREBEN, JJ.
A regulation of the State Examiners of Electricians requiring that all electrical work on fire and burglar alarm systems be performed by licensed electricians was validly adopted under G. L. c. 141, Section 1. [21-26] ROSE, J., dissenting. General Laws c. 141, Section 7, which provides that "companies incorporated for the transmission of intelligence by electricity" shall not be subject to regulation under c. 141, afforded no exemption to a group of plaintiffs engaged in the business of installing and maintaining alarm systems. [27-28]
CIVIL ACTION commenced in the Superior Court on March 10, 1975.
The case was heard by Hayeck, J., a District Court judge sitting under
statutory authority.
John P. Graceffa, Assistant Attorney General, for the defendant.
Anne L. Berger (Judith A. Kelley with her) for the plaintiffs.
Peter J. Gagne, for Electrical
Contractors Association of Greater Boston, amicus curiae, submitted a brief.
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1 American District Telegraph Company,
Andrew J. Crotty, Jr., Fred Tapper (installers and maintainers of burglar, fire
and smoke alarm systems for commercial and residential properties); the
Massachusetts Alarm Association, Inc. (an organization formed "to promote
uniform standards for the burglar, fire and smoke alarm industry and to offer
assistance and advice to the public in such matters"); and the
Massachusetts Security Contractors Association (a nonprofit corporation engaged
in improving business conditions of those persons involved in installing and
maintaining burglar, fire, and smoke alarm systems).
Page 18
PERRETTA, J. The plaintiffs, a group of individuals, corporations, and trade
unions involved in the business of installing, maintaining, and servicing
burglar and fire alarm systems within the Commonwealth, brought an action in
the Superior Court as a direct judicial challenge (see G. L. c. 30A, and G. L.
c. 231A) to Rule 2.2 of the Rules and Regulations of the Board of State
Examiners of Electricians of the Commonwealth of Massachusetts (1974) (board).
See now 237 Code Mass. Regs. 4.02(3) (1981). That rule requires that only
licensed electricians "engag[e] in or work[ ] at the business of
installing wires, conduits, apparatus, fixtures or other appliances for
carrying or using electricity for light, heat, or power purposes, fire alarm
and all signal work requiring the use of wire for transmission."
The plaintiffs contend: (1) that they are outside the scope of the licensing
requirements set forth in G. L. c. 141, Section 1, because their systems are
not for "light, heat or power purposes" and such requirements cannot
be enlarged by the board through use of its rulemaking authority; and (2) that
because alarm systems convey information, installation of such systems is
exempt from the board's regulation by reason of G. L. c. 141, Section 7, a
section providing that c. 141, Section 1, is inapplicable to the "work of
companies incorporated for the transmission of intelligence by
electricity."
The trial judge concluded that Section 1 was not applicable to the plaintiffs
and that, even if it were, the plaintiffs would be exempt from its coverage by
Section 7. A judgment entered declaring that the regulation "is invalid in
its application to each of the plaintiffs" and permanently enjoining the
board from enforcing, civilly or criminally (see G. L. c. 141, Section 5), the
regulation against any of the plaintiffs.
We conclude that the regulation is valid, that it is consistent with the
purpose of Section 1, and that the plaintiffs are not within the scope of the
exemption claimed under Section 7. We do not, however, determine the
applicability of the regulation to the individual plaintiffs because the record
is inadequate for such purpose.
Page 19
I. FACTS.
A stipulation of agreed facts was filed by the parties and incorporated by the
trial judge in his findings of fact. The parties also presented three
witnesses, but the trial judge made no additional findings based upon their
testimony.
General Laws c. 141, Section 1, as amended by St. 1943, c. 308, provides, in
pertinent part:
"No person, firm or corporation shall enter into, engage in, or work at
the business of installing wires, conduits, apparatus, fixtures or other
appliances for carrying or using electricity for light, heat or power purposes,
unless such person, firm or corporation shall have received a license and a
certificate therefor, issued by the state examiners of electricians and in
accordance with the provisions hereinafter set forth."
Pursuant to its rule making authority under Section 2 of the statute,2 the board promulgated the disputed regulation,
which substantially tracks the language of Section 1, with the major exception
of the emphasized additional phrase:
"All persons, firms and corporations entering into, engaging in or working
at the business of installing wires, conduits, apparatus,
fixtures or other appliances for carrying or using electricity for light, heat,
or power purposes, fire alarm and all signal work
requiring the use of wire for transmission, within the Commonwealth of
Massachusetts shall be governed by the applicable provisions, now or hereafter
in force, of all general and special laws; all rules and regulations made and
promulgated pursuant to the provisions of any such law; and in respect to all
matters not therein expressly provided shall be governed by the standards set
forth in the 1981 Massachusetts
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2 General Laws c. 141, Section 2,
provides in pertinent part that "[t]he state examiners of electricians, in
this chapter called the examiners, may make necessary rules for the proper
performance of their duties."
Page 20
Electrical Code, 527 CMR: 12.00 and as may be from time to time amended, for
Electrical Wiring and Apparatus as Rules and Requirements for Electrical Wiring
in Massachusetts as adopted by this Board on June 22, 1981."
With these provisions in mind, we turn to the facts set out in the parties'
stipulation. "All modern burglar alarm systems and approximately fifty
percent of all fire alarm systems are connected to a power supply by means of a
plug-in transformer. The remaining systems are hard wired to a power supply
but, when hard wiring is necessary, it is done by a licensed electrician"
(emphasis supplied).
There are attached to the stipulation excerpts, including a diagram, from Hahn,
Modern Electronic Security Systems (1976), which the stipulation states
"fairly describe the essential elements and functions of a typical burglar
alarm system." A second attachment to the stipulation is a hand drawn
diagram (of unidentified origin) labelled "Typical Fire Alarm
System," which the parties stipulate "fairly represents the essential
elements and functions of a typical fire alarm system."3 There are also, according to the undisputed testimony in
the record,
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3 It appears from these attachments to
the stipulation that a "typical burglar alarm system" consists of the
following: a control unit connected to a power supply and standby power supply,
the former connected to a 120 volt (AC) "Input"; "space
detectors," "perimeter detectors," and "remote key switch
stations," having the capability of transmitting signals over wire into
the "security control" unit; a "local alarm bell" or
"local alarm siren" which can be activated by signals over wire from
the "security control" unit; and a "reversing telephone
relay," "automatic telephone dialer," or "McCulloh
Circuit," having the capability of placing a telephone call to an
answering service or control security station when activated by signals over
wire from the "security control unit."
A "typical fire alarm system" appears to function in a substantially
similar manner. A control unit connects to a power source (115 Volts AC or
"Plug In Transformer output twelve volts"); various smoke detectors,
thermostats, and "manual pull stations," having the capability of
transmitting signals over wire into a "Fire Alarm Control" unit; and
horns or sirens which can be activated by signals over wire from the control
unit. The control unit also has the capacity to transmit an alarm signal over
wire to a central alarm station, city fire department, or "master
box."
Page 21
more sophisticated fire alarm systems which can perform various mechanical
functions, such as automatically operating elevators or reversing ventilation
systems to expel smoke from a building.
Collectively, the plaintiffs install all of the described systems. Their
argument is that they do not fall within the licensing requirements of G. L. c.
141, Section 1, because their alarm systems do not use electricity for purposes
of the end products of light, heat, or power. Although the alarm systems,
according to the parties' stipulation, draw upon electricity to supply power to
the systems, the plaintiffs contend that they are outside the scope of G. L. c.
141, Section 1, because: "Burglar, fire and smoke alarms do not have heat
or light as a purpose. . . . Nor is power an end product, as the signals given
out by alarm equipment are not power." They contend that to bring their
activities within the control of the board is to enlarge the scope of Section
1, which must be done by legislative, rather than rule making, authority.
The board argues that the statutory phrase "light, heat or power" is
inclusive and general and does not refer to "end-products." It
contends that the alarm systems utilize electricity for power purposes and
that, therefore, the systems must be installed by licensed electricians.4 II. THE STATUTE.
The board's interpretation of c. 141, Section 1, as giving it the authority to
require licensed electricians to install burglar and fire alarms is entitled to
"respect." White Dove, Inc. v. Director of the Div. of Marine
Fisheries, 380 Mass. 471, 477 (1980). "Although the usefulness of
regulations should not be overrated, their importance is never greater than
where, as here, an agency must interpret a legislative policy which is only
broadly set out in the governing statute." School Comm. of Springfield v.
Board of Educ., 362 Mass. 417, 442 (1972). See
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4 The board has been joined in its
position by the Electrical Contractors Association of Greater Boston
(association). A single justice of this court granted the association leave to
file a brief as an amicus curiae. Mass.R.A.P. 17, 365 Mass. 864 (1974).
Page 22
also Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844,
850 (1977); Massachusetts Organization of State Engineers & Scientists v.
Labor Relations Commn., 389 Mass. 920, 924 (1983).
Since the meaning of the term "power" is not immediately apparent, we
must construe the phrase "light, heat or power purposes," in light of
the history of the statute, which dates from St. 1915, c. 296, and its relation
to other statutes touching upon the same subject matter. See generally
Commonwealth v. Welosky, 276 Mass. 398, 403 (1931); McCarthy v. Rogers, 295
Mass. 245, 249 (1936); Nichols v. Commissioner of Corps. & Taxn., 314 Mass.
285, 291 (1943). The obvious intent of the Legislature in enacting what is now
c. 141, Section 1, has been, since 1915, to require that electrical work be
performed by licensed electricians. See Maria v. State Examiners of
Electricians, 365 Mass. 551, 554 (1974).
We do not think it consistent with that intent to read "light, heat or
power purposes" as words of limitation. Rather, we view them as a
shorthand expression for the most common uses of electricity at the time of the
statute's enactment. Interpretations of the words "light, heat or
power" as used in 1915 support this conclusion. The term "power"
was construed broadly in Commissioner of Corps. & Taxn. v. Springfield, 321
Mass. 31 (1947). In that case the court made clear, at least for purposes of
construing a 1916 corporate franchise tax statute, that the distribution of
electricity for purposes of power included furnishing electricity "for
such purposes as operating a radio, a toaster, a refrigerator or some other
household article." Id. at 37.5 A
1913 legislative report issued pursuant to a
-------------------------
5 In rejecting an argument by the
Commissioner of Corporations and Taxation that two companies "incorporated
for the purpose of furnishing light and power by electricity and heat"
were power and not electric light companies within the meaning of the relevant
statute, the court pointed out that nothing appeared in the report accompanying
the original statute or in the 1916 statute itself, "indicating that an
electric light company which sold electricity for power was not to be regarded
as an electric light company. It was a matter of common knowledge that electric
light companies were furnishing electricity for power; and although the amounts
furnished for this purpose have greatly increased, especially with reference to
ordinary household equipment, so that it is highly improbable that there is a
single electric light company furnishing electricity for illumination which
does not also furnish electricity for such purposes as operating a radio, a
toaster, a refrigerator or some other household article, and although [the
statute] has been amended, . . . the phrase `electric light . . . companies'
has remained unchanged, and this must be taken to mean that the Legislature was
satisfied that this phrase included a company that was distributing electric
energy not only for the purpose of illumination but also for power."
Commissioner of Corps. & Taxn. v. Springfield, 321 Mass. at 37 (emphasis
supplied).
Page 23
resolution to revise the laws of the Commonwealth pertaining to the
manufacture and transmission of gas and electricity again shows a broad use of
the term "power" and that the words "light,"
"heat" and "power" were used interchangeably with the term
"electricity." The report pointed out that some statutes referred to
sale of gas and electricity for "light and heat," some for
"light, heat or power," some spoke of sale of "electric
light," others of "electricity." 1913 House Doc. No. 1925, at
13. After citing the "lack of uniformity" in the array of statutes,
the report explained that "electric light and electric power"
companies were not defined, that both classes of companies sold electricity,
and stated, "`Light,' `heat,' and `power'" as used in the statutes
"are but varied manifestations of the same thing. Its identity is not
affected by the use which the purchaser may perhaps make of it." Id. at
14.6
We thus conclude from these contemporaneous interpretations of the words
"light, heat, or power," that although they are arguably redundant
when viewed with the hindsight of technological
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6 We are not unmindful that G. L. c.
166, Section 30, first adopted in 1890 (see St. 1890, c. 404, Section 1),
speaks in terms of wires designed to carry "light and power current"
(later to include heat, see St. 1899, c. 337, Section 1) and wires not so
designed. The nature of any distinction existing in c. 166, Section 30, and its
historical predecessors, however, becomes apparent, in our view, in R. L. c.
122, Sections 1 through 30 (1902), and it is not based upon wires carrying
light, heat and power and wires carrying "other" electrical products.
Rather, the distinction rests on whether the wires were installed by electrical
companies or telephone and telegraph companies. See also G. L. c. 166, Sections
21, 22A, and 25. Nor is there anything in G. L. c. 143 which detracts from our
analysis. As we read that chapter, although telephone and telegraph company
employees need not be licensed electricians under G. L. c. 141, Section 1, by
reason of Section 7 of that chapter, we see nothing in G. L. c. 143 which
exempts such company employees from compliance with the electrical code
promulgated under G. L. c. 143, Section 3L.
Page 24
advancement,7 they were just different
ways of phrasing the common uses of electricity.
The fact that the board did not promulgate the present regulation until 1974
does not, in our view, minimize the weight to be given the board's
interpretation of Section 1. See Federal Trade Commn. v. Bunte Bros., 312 U.S.
349, 352 (1941). We think it inappropriate to infer that the board's nonaction
between 1915 and 1974 was the result of a deliberate interpretation of Section
1 in a manner contrary to that taken in 1974. It is equally plausible that the
1974 regulation was a "carefully considered interpretation," issued
in response to the circumstances supported in the record, namely that alarm
systems have become more and more sophisticated. See 2A Sands, Sutherland
Statutory Construction Section 49.05, at 239 (4th ed. 1973). The board
"may decline to exercise its full potential jurisdiction." Brooks v.
Architectural Barriers Bd., 14 Mass. App. Ct. 584, 589 (1982). The broad grant
of power conferred upon the board by reason of c. 141, Sections 1 and 2,
permits it to consider changing conditions and "necessarily implies a
range of authority for establishing priorities for enforcement of the general
legislative policy." 14 Mass. App. Ct. at 588.
We are also influenced by the fact that another agency, the Board of Fire
Prevention Regulations, has interpreted language identical to c. 141, Section
1, to permit regulation of burglar and fire alarms by that agency. General Laws
c. 143, Section 3L, as amended through St. 1977, c. 64, Section 1, provides
that the board shall "make . . . regulations relative to the installation,
repair and maintenance of electrical wiring and electrical fixtures used for
light, heat and power purposes." The Board of Fire Prevention Regulations
has regulated "outside wiring for fire alarm and burglar alarms," 527
Code Mass. Regs. 12.00, art. 800-1 (1981) since 1951, just one year after its
enabling statute
-------------------------
7 Because, as previously noted, we
view Section 1 as a "legislative policy which is only broadly set
out," School Comm. of Springfield v. Board of Educ., 362 Mass. at 442,
thereby requiring that the board's interpretation be given deference and great
weight, it is not enough for the plaintiffs to show that Section 1 might
arguably lend itself to the construction which they urge. See Consolidated
Cigar Corp. v. Department of Pub. Health, 372 Mass. at 855.
Page 25
was enacted. See St. 1950, c. 617. Thus, there is a consistent,
long-standing administrative interpretation of the phrase in question by
another agency dealing with the same or almost the same subject matter. See
Cleary v. Cardullo's, Inc., 347 Mass. 337, 343 (1964); School Comm. of
Springfield v. Board of Educ., 362 Mass. 417, 441 n.22 (1972); Devlin v.
Commissioner of Correction, 364 Mass. 435, 439 (1973). We note that there is no
justification in the statutory language for the distinction made by the dissent
between high and low voltage wiring. We also note that were we to adopt the
plaintiffs' construction of the phrase "light, heat or power
purposes," i.e., distinct, limited end products of electricity, we would
render meaningless the exemption set out in G. L. c. 141, Section 7, for
telephone and telegraph companies. (See part IV of this opinion, infra.)
In view of all these considerations, we reject the plaintiffs' contentions as
to the construction of the statute. III. THE REGULATION.
In their brief the plaintiffs correctly concede that "the purpose of the
enabling legislation was to protect the health and safety of the public."
Thus, by well established law, "we must apply all rational presumptions in
favor of the validity of the administrative action and not declare it void
unless its provisions cannot by any reasonable construction be interpreted in
harmony with the legislative mandate." Consolidated Cigar Corp. v.
Department of Pub. Health, 372 Mass. at 855. Quite simply, the question is
whether the regulation is "reasonably related to the purposes of the
enabling legislation." Mourning v. Family Pub. Serv., Inc., 411 U.S. 356,
369 (1973). See Consolidated Cigar Corp. v. Department of Pub. Health, 372
Mass. at 855; Levy v. Board of Registration & Discipline in Medicine, 378
Mass. 519, 524 (1979); Coonamesset Inn v. Chief of the Falmouth Fire Dept., 16
Mass. App. Ct. 632, 635 (1983).
As in Coonamesset, at 636, it is here also "readily apparent that [c. 141,
Section 1] does not address comprehensively all of the matters that may come
within its scope." However, there was testimony on a point we think
obvious: that the improper installation of wire conduits could cause fire and
electrical shock. We need go no further to conclude that the regulation is
reasonably related to the enabling statute.
By their complaint the plaintiffs sought and obtained a determination that the
regulation "is invalid in its application to each of" them. "In
a challenge under G. L. c. 30A, Section 7, to a regulation, the plaintiff must
prove its case in the judicial proceeding [citations omitted]." Grocery
Manufacturers of America, Inc. v. Department of Pub. Health, 379 Mass. 70, 81
(1979). The parties' stipulation does not satisfy the heavy burden that the
plaintiffs must meet to entitle them to a declaration that the regulation is
invalid in its application to them.
Both at trial and on appeal, the thrust of the plaintiffs' argument has been
that the regulation is inapplicable to them because their systems produce
signals rather than light, heat, or power.8 They have not prevailed with that argument in this court.
That the regulation might be applied to alarm systems not reasonably within the
comprehension of c. 141, Section 1, is a question which must await a more
focused attack and better record. All that has been shown here is that
collectively the plaintiffs install all the previously described alarm systems.
We will not ignore the plaintiffs' burden of proof or the need for the board's
expertise concerning any given system in order to declare which system
installed might not "require the use of wires for transmission," as
that regulation is construed in harmony with c. 141, Section 1. We determine
only that the regulation is not invalid on its face and that the plaintiffs are
not entitled to a declaration of the invalidity of the regulation as applied to
them. Our holding does not preclude any further litigation by these plaintiffs
on the issue of the applicability of the regulation to any particular system
claimed to be outside the scope of the statute and regulation.
-------------------------
8 From our examination of the record,
which includes the transcript of trial and lobby conferences, we think that the
judgment entered by the trial judge rests upon his agreement with the
plaintiffs' argument in general and not upon any particular determinations as
to the methods of installation and operation of the various individual alarm
systems.
Page 27
IV. THE EXEMPTION.
The plaintiffs also claim (and the trial judge agreed and concluded) that even
if Section 1 and the regulation were applicable to them, they are exempt
therefrom by reason of Section 7.
General Laws c. 141, Section 7, provides in pertinent part: "[Chapter 141]
shall not apply . . . to the work of companies incorporated for the
transmission of intelligence by electricity in installing, maintaining, or
repairing wires, apparatus, fixtures or other appliances used by such companies
and necessary for or incident to their business, whether or not such wires,
conduits, apparatus, fixtures or other appliances are on its own
premises." Section 7 has remained unchanged since its adoption by St.
1915, c. 296, Section 7.
The plaintiffs claim the benefits of Section 7 on the basis that "[t]he
fundamental purpose of all [alarm] systems is to transmit or communicate, by
means of the wires and other devices installed, the fact that an intruder is on
the premises or that there is a fire, or smoke, on the premises . . . . [T]he
purpose is to convey specific intelligence to persons in the vicinity or who
are specifically monitoring the system." The plaintiffs read the exemption
as applying to all information transmitted by electricity.
The board, on the other hand, argues that the words "transmission of
intelligence by electricity" refer to the telephone and telegraph (see
Commonwealth v. Boston, 97 Mass. 555, 559 [1867]; Pierce v. Drew, 136 Mass. 75,
76 [1883]; New England Tel. & Tel. Co. v. Boston Terminal Co., 182 Mass.
397, 398 [1903]) and that the exemption applies only to telephone and telegraph
companies.
In construing the statutory exemption contained in Section 7, we note that the
telephone and telegraph have been described as modes of transmitting
intelligence. See Pierce v. Drew, 136 Mass. at 81; Mentzer v. New England Tel.
& Tel. Co., 276 Mass. 478, 483 (1931). While the phrase "transmission
of intelligence" has come to embrace other modes of communicating
information, the term still is generally used within the telecommunications
industry. See, e.g., First Data Corp. v. State Tax Commn., 371 Mass. 444, 445,
448 (1976); Westinghouse
Page 28
Bdcst. Co. v. Commissioner of Rev., 382 Mass. 354, 357-358 (1981). See also
e.g., KAOK-CATV, Inc. v. Louisiana Cable T.V., Inc., 195 So.2d 297, 300 (La.
App. 1967); Waterville v. Bartell Tel. TV Syss., 233 A.2d 711, 717 (Me. 1967);
White v. Ann Arbor, 406 Mich. 554 (1979). Cf. Owl Protective, Co. v. Feinberg,
3 App. Div. 2d 340, 344-345 (N.Y. 1957), where the Supreme Court stated that
"[b]ecause a burglar may involuntarily telegraph his unlawful entrance
over a leased wire, it does not follow that either the owner of the protected
establishment, or the burglar alarm company, is engaged in the telegraph
business."
Even assuming that c. 141 is penal in nature by reason of Section 5, see Maria
v. State Examiners of Electricians, 365 Mass. at 554, and that the exemption
Section 7 must, therefore, be broadly construed, cf. Wood v. Commissioner of
Correction, 363 Mass. 79, 81 (1973), we cannot interpret Section 7 so that it
is "stretched by enlargement of signification to comprehend matters not
within the principle and purview on which they were founded when originally
framed and their words chosen." Commonwealth v. Welosky, 276 Mass. at
401-402. We conclude that the exemption applies to the transmission of
intelligence by telephone, telegraph, and similar or analogous
instrumentalities. The plaintiffs' burglar, fire, and smoke alarm systems may
well transmit informative signals, noise, light, or any combination thereof,
but they do not convey that type of intelligence comprehended by the exemption
set out in Section 7. V. CONCLUSION.
The judgment in its present form is vacated, and the matter is remanded to the
Superior Court for the entry of a new judgment declaring that the regulation is
valid and that the plaintiffs are not exempt from the operation of G. L. c.
141, Section 1, by reason of c. 141, Section 7.
So ordered.
ROSE, J. (dissenting). I respectfully dissent from the majority opinion. The
board has promulgated a regulation excessively
Page 29
broad in scope, purporting to require an electrician's license for
"fire alarm and all signal work requiring the use of wire for
transmission," and has exceeded its authority in doing so. The
installation of fire and burglar alarm systems, insofar as it involves
installation of wires or other apparatus used only for the purpose of
transmitting low voltage, limited current electrical signals, does not fall
within the definition of wiring and equipment for "carrying or using
electricity for light, heat and power purposes," as that phrase appears in
G. L. c. 141, Section 1. Such work is thus beyond the scope of the board's
regulatory authority.
Since G. L. c. 141, Section 1, is not permissive but mandatory, the majority
opinion, interpreting that section to authorize the challenged regulation,
appears to have the effect of requiring a licensed electrician to install any
appliance, equipment, or wiring, which simply plugs into a standard household
outlet. Even the installation of wires connecting intercom, paging, or public
address systems would seem to require a licensed electrician, under the
reasoning of the majority.1 The
Legislature could not have intended a result so contrary to common sense in
adopting G. L. c. 141, Sections 1-2. Moreover, quite aside from driving some of
the plaintiffs out of business, the result which the majority reaches will
impose a significant cost without corresponding benefit upon the public.
The use of electricity for the purpose or intended result of transmitting a
limited current electrical signal is a use separate and distinct from the use
of electricity for the purpose or intended result of producing heat, light, or
power. Other statutory provisions in the Commonwealth recognize the distinct
nature of those uses.2 The board's
contrary contention that the
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1 According to the testimony of the
board's only witness, burglar and fire alarm systems, doctors' register
systems, nurses' call systems, paging systems, intercom systems, and telephones
all fall into the same category of electrical work.
2 See G. L. c. 166, Section 21, as
appearing in St. 1951, c. 476, Section 1 (regulating companies
"incorporated for the transmission of intelligence by electricity or by
telephone, whether by electricity or otherwise, or for the transmission of
television signals, whether by electricity or otherwise, or for the
transmission of electricity for lighting, heating or power, or for the
construction and operation of a street railway or an electric railroad . .
."); G. L. c. 166, Section 22A, as appearing in St. 1969, c. 884, Section
1 (defining regulated "poles and overhead wires" to include those
"used or useful in the transmission of intelligence by electricity or
otherwise, or for the transmission of television signals, whether by
electricity or otherwise, or for the transmission of electricity for lighting,
heating or power, or for the construction or operation of a street railway or
an electric railroad . . ."). See also 527 Code Mass. Regs. Section 12.00,
art. 725-1 (1981) (a regulation promulgated by the Board of Fire Prevention
Regulations, stating that certain "signaling[] and power limited circuits
. . . are characterized by usage and electrical power limitations which
differentiate them from light and power circuits . . ."). Statutory
provisions enacted by the Legislatures of other States have also recognized the
distinct nature of those uses. See N.Y. Gen. City Law Section 20 (McKinney
1968) (defining "master electrician" as person or entity who or which
installs, alters or repairs "any electric wires or wiring apparatus,
fixtures and other appliances used or to be used for the transmission of
electricity for light, heat or power, or signaling system where more than fifty
volts is required for its operation").
Page 30
transmission of signals over wire constitutes the "use of electricity
for heat, light and power purposes" is belied by the board's own
regulation: the board has deemed it necessary to add the words "fire alarm
and all signal work requiring the use of wire for transmission" to the
statutory language in order to bring the plaintiffs' work within the ambit of
the regulation. Plainly, the board did not consider the statutory language
alone sufficient to establish the requirement of an electrician's license for
"fire alarm and all signal work."
In promulgating a regulation with such broad and inseverable language, the
board has swept in matters both inside and outside of its scope of authority. I
would not dispute the board's authority to regulate certain aspects of the
plaintiffs' work (e.g., hard wiring [direct connection] with a power source).
Indeed, the plaintiffs themselves do not appear to contest the board's
authority to require an electrician's license for hard wiring since, by their
own stipulation, the plaintiffs always have a licensed electrician do any
necessary hard wiring. However, the board does not have authority under G. L.
c. 141, Sections 1 and 2, to require an electrician's license for the
installation of low voltage, limited current signaling systems, not unlike
telephone
Page 31
or intercom systems,3 which connect
with a power source by means of a plug placed in a preexisting household
outlet. Thus the portion of the regulation at issue purporting to regulate such
installations is on its face beyond the scope of the board's authority and was
properly declared invalid by the Superior Court judge.
I cannot agree with the conclusion of the majority that the challenged
regulation, despite its sweeping scope, is valid because "reasonably
related" to the purpose of the enabling legislation, protecting public
health and safety. More is required to justify raising the concern of public
health and safety than the danger of a 12-volt shock4 or the danger posed by the insertion of a plug in an
electrical socket. I see no evidence that, by adopting c. 141, the Legislature
intended to invest the board with authority to regulate all electrical work
which could present any risk to public health and safety, no matter how
inconsequential the risk and no matter how remote the likelihood of realizing
that risk. In fact there is evidence to the contrary. The Legislature has twice
declined to adopt proposed amendments to c. 141 expanding the board's
jurisdiction. See note 5, infra.
I am not persuaded by the majority's discussion of the legislative history of
enactments other than the one before us. Cf. Commonwealth v. Brown, 391 Mass.
157, 162 (1984) (wherein the court stated, "We do not agree that the
intent of the Legislature in 1915, in enacting G. L. c. 43, Section 28
[governing bidding on public contracts], is revealed by statutes enacted many
years later when the range of legislative concern may well have expanded to
include . . . [matters] that were not the concern of the earlier
Legislature"). That discussion does not explain why signaling, certainly a
use of electricity well known in 1915 and probably the first common use of
electricity, was omitted from the phrase describing the type of wiring and
-------------------------
3 The board's only witness testified
that burglar and fire alarm systems are similar to telephone systems, both
using low voltage electricity.
4 Such a shock would be at most
"slight" even according to the testimony of the board's only witness.
Page 32
equipment for which the board was authorized to issue licenses under G. L.
c. 141, Sections 1 and 2. Heat, light, and power may indeed be "but varied
manifestations of the same thing": different employments of identical
electrical current, presenting identical risks. However, low voltage, limited
current signaling is not.
Nor am I persuaded that the interpretation which a different agency, the Board
of Fire Prevention Regulations, has attached to similar language appearing in a
different statute, G. L. c. 143, Section 3L, supports the majority's
construction of G. L. c. 141, Section 1. In the first place, the Board of Fire
Prevention Regulations has not promulgated regulations so broad in scope as the
one presently before the court. Its regulations apply to ". . . outside
wiring for fire alarm and burglar alarms and similar central station systems .
. ." (emphasis added). 527 Code Mass. Regs. Section 12.00, art. 800-1
(1981). However the words "outside wiring" might be defined, they are
plainly less inclusive than the words "fire alarm and all signal work
requiring the use of wire for transmission" appearing in the regulation at
issue. None of the regulations included in 527 Code Mass. Regs. Section 12.00,
art. 800 (1981), would apply to the typical burglar alarm system described in
the parties' stipulation. Secondly, to the extent regulations promulgated by
the Board of Fire Prevention Regulations purport to regulate the installation
of wiring and equipment used only for the purpose of transmitting low voltage
signals, those regulations do not appear to be authorized by G. L. c. 143,
Section 3L.5
-------------------------
5 This construction of G. L. c. 143,
Section 3L, would not necessarily cast doubt upon the authority of the Board of
Fire Prevention Regulations (established under G. L. c. 22, Section 14) to
promulgate rules relating to the fire safety of electrical wiring and equipment
applicable to the work done by the plaintiffs. See 527 Code Mass. Regs. Section
12.00, art. 800 (1981). The Board of Fire Prevention Regulations is charged
with the duty of promulgating a "comprehensive fire safety code." G.
L. c. 22, Section 14, as appearing in St. 1980, c. 462, Section 1. G. L. c.
148, Section 28, as appearing in St. 1982, c. 520. In carrying out that duty,
that board is required to promulgate regulations to, among other things,
"prevent or remedy any condition in or about any building, structure or
other premises . . . which may tend to become a fire hazard or to cause a
fire." G. L. c. 148, Section 28. Thus the Legislature has vested the Board
of Fire Prevention Regulations with broad authority to determine the
appropriate focus or subject matter of those regulations. Compare earlier
versions of G. L. c. 148, Section 28 (St. 1945, c. 710; St. 1980, c. 462,
Section 2), which allowed the board substantially less discretion. (It is
noteworthy that the discretion of the of State Examiners of Electricians has
not been similarly expanded.) Therefore, notwithstanding the presence of the
phrase here at issue in G. L. c. 143, Section 3L (expressly requiring the Board
of Fire Prevention Regulations to promulgate rules relating to the fire safety
of electrical wiring and equipment used for "light, heat, and power
purposes"), the court would not be constrained to conclude that
regulations applicable to the plaintiffs in the instant case promulgated by the
Board of Fire Prevention Regulations are beyond that board's scope of
authority. See Grocery Manufacturers of America, Inc. v. Department of Pub.
Health, 379 Mass. 70, 76 (1979) ("[s]pecific statutory authority to act in
a particular respect does not bar consistent action under general statutory
authority").
Page 33
Moreover, it is clear that much of the plaintiffs' work could not pose any
significant threat to public health or safety. The parties' stipulation
provides that "[a]ll modern burglar alarm systems and approximately fifty
percent of all fire alarm systems are connected to a power supply by means of a
plug-in transformer." Thus, the bulk of the systems installed by the
plaintiffs simply plug into an existing standard household outlet and, due to
the transformer, are powered by a low voltage, limited current of electricity.
The danger posed is no greater than that posed by a telephone, and probably
less than that posed by any ordinary household appliance which plugs into a
household outlet. Cf. 527 Code Mass. Regs. Section 12.00, art. 725-40 (for
certain "low energy" circuits, "conductor insulation is not
specified in . . . detail as reliance is placed on . . . power supplies which
limit voltage and current to safe values"). As the trial judge noted,
"[T]he use of very little current does make a difference." In stating
that "there was testimony on a point we think obvious: that the improper
installation of wire conduits could cause fire and electrical shock," the
majority fails to distinguish between very different types of wiring: ordinary
wiring, carrying a full current of electricity, connecting directly to a power
source, as opposed to low voltage wiring carrying a low voltage, limited
current of electricity connecting to a power source by means of a transformer
plugged into a preexisting standard household outlet. The majority also relies
on the heavily contradicted testimony of a single witness,
Page 34
who admitted having no recent experience in alarm installations, regarding a
matter on which the trial judge made no findings of fact.6
In reaching the conclusion that the portion of the regulation in question is
beyond the scope of the board's statutory authority, I am not unmindful of the
presumption of validity to which the regulation is entitled, see, e.g.,
Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855
(1977); White Dove, Inc. v. Director of the Div. of Marine Fisheries, 380 Mass.
471, 477 (1980), and the degree of deference to which the board's
interpretation of the statute it is charged with enforcing is entitled, see,
e.g., Grocery Manufacturers of America, Inc. v. Department of Public Health,
379 Mass. 70, 75, 85 (1979).7 However,
these principles are principles of
-------------------------
6 It should also be noted that
history indicates that the majority's public safety concern is without
foundation. The parties' stipulation of agreed facts contains the statements
that "no claims have ever been filed against any of the Plaintiffs
claiming any personal injuries or death or property damage as a result of their
assembly or installation of burglar and/or fire and/or smoke alarm equipment in
Massachusetts," and that "the Defendant Board has no records of
complaints of personal injury or death or property damage attributable to
faulty or defective assembly or installation of burglar and/or fire and/or
smoke alarm equipment in Massachusetts." The plaintiffs have all been in
the alarm installation business for substantial periods of time, ranging from
twenty-three to one hundred six years.
7 The degree of deference to which an
agency's interpretation of a statute is entitled is itself a question of
legislative intent. Ciampa v. Secretary of Health and Human Services, 687 F.2d
518, 526 (1st Cir. 1982). See Massachusetts Organization of State Engineers
& Scientists v. Labor Relations Commn., 389 Mass. 920, 924 (1983). Where
the Legislature has granted broad agency authority to deal with an entire area
of activity, the agency's interpretation of its statute is "especially
significant" and entitled to great weight. Massachusetts Organization of
State Engineers & Scientists v. Labor Relations Commn., supra. "Where
no such broad statutory grant exists, closer scrutiny of the authority of the
agency is required and has been applied." Grocery Manufacturers of
America, Inc. v. Department of Pub. Health, 379 Mass. 70, 75 (1979), and cases
therein cited. I do not consider the board to be possessed of a broad statutory
grant; thus I would give closer scrutiny to the board's construction of the
statute determining the scope of its authority. Cf. Grocery Manufacturers of
America, Inc. v. Department of Pub. Health, supra at 75-77; Morello v. Boston
Rent Control Bd., 14 Mass. App. Ct. 27, 32-33 (1982); Massachusetts Retired
Police & Firefighters Assn. v. Retirement Bd. of Belmont, 15 Mass. App. Ct.
212, 217 n. 7 (1983). Compare Warner Cable of Mass., Inc. v. Community Antenna
Television Commn., 372 Mass. 495 (1977); Rock v. Massachusetts Commn. Against
Discrimination, 384 Mass. 198, 206-208 (1981). I would further note that this
is not a case involving either consistent or contemporaneous agency
interpretation of a statute which would entitle the agency interpretation to
greater weight. See Cleary v. Cardullo's, Inc., 347 Mass. 337, 343 (1964); Casa
Loma, Inc. v. Alcoholic Beverages Control Commn., 377 Mass. 231, 235 (1979).
Moreover, although administrative power granted by the Legislature cannot lapse
through an agency's failure to exercise it, the hiatus of nearly sixty years
between the board's assumption of its duties and its first assertion of
jurisdiction over the plaintiffs is suggestive of a lack of authority.
"[J]ust as established practice may shed light on the extent of power
conveyed by general statutory language, so the want of assertion of power by
those who presumably would be alert to exercise it, is equally significant in
determining whether such power was actually conferred." Federal Trade
Commn. v. Bunte Bros., 312 U.S. 349, 352 (1941). See 2A Sands, Sutherland
Statutory Construction, Section 49.05, at 239 (4th ed. 1973). In this regard,
it is noteworthy that, according to the board's only witness, the average alarm
system has become far less dangerous in the last ten or twenty years due to the
advent of 12-volt and 24-volt systems. Thus, the board cannot argue that its
recent assertion of authority over alarm installations is in response to
increased danger in alarm systems. Counsel for the board at trial conceded that
"the technology, and indeed some of the plaintiff organizations, predate
the 1915 date of the statute."
Page 35
deference, not abdication. See Nickerson v. Ribicoff, 206 F. Supp. 232, 234
(1962). Cf. Finkelstein v. Board of Registration in Optometry, 370 Mass. 476,
478 (1976); Board of Educ. v. School Committee of Amesbury, 16 Mass. App. Ct.
508, 514 (1983). "The construction of the statute is a matter of law and .
. . the courts cannot be bound by an erroneous statutory construction by an
administrative body." McDonough v. Contributory Retirement Appeal Board,
15 Mass. App. Ct. 14, 15 (1982), citing Russo v. Director of the Div. of
Employment Security, 377 Mass. 645, 649 (1979); Johnson v. Martignetti, 374
Mass. 787, 790 (1978). See Treasurer and Receiver General v. John Hancock Mut.
Life Ins. Co., 388 Mass. 410, 423 n.25 (1983). Judicial deference to an
agency's attempt to extend its authority beyond statutory confines is
especially inappropriate when, as here, such an extension would be tantamount
to granting a legal monopoly to the trade group which the agency not only
regulates but from which its members are
Page 36
drawn.8 See Gellhorn, Abuse of
Occupational Licensing, 44 U. Chi. L. Rev. 6 (1976).
In my view, the court should not defer to the board's broad construction of the
phrase "heat, light and power purposes," as it appears in G. L. c.
141, Section 1, to include all uses of electricity, because that construction
renders the phrase superfluous. Cf. Morello v. Boston Rent Control Bd., 14
Mass. App. Ct. 27, 32 n.4 (1982). "None of the words of a statute is to be
disregarded, for they are the main source for the ascertainment of the
legislative purpose." Treasurer and Receiver General v. John Hancock Mut.
Life Ins. Co., 388 Mass. at 422. United States Jaycees v. Mass. Commn. Against
Discrimination, 391 Mass. 594, 602 (1984). See Commonwealth v. Brown, 391 Mass.
at 162. The board's construction of the phrase in question has the effect of
removing the phrase from the statute; with the phrase removed, the statute
would require the licensing of persons, firms and corporations which
"enter into, engage in, or work at the business of installing wires,
conduits, apparatus, fixtures or other appliances for carrying or using
electricity." This truncated version of the statute is not the version
which the Legislature enacted. Compare G. L. c. 164, Section 1(7), as amended
through St. 1982, c. 120, Section 3 (regulation of corporations "selling,
or distributing and selling, electricity within the Commonwealth . . .").
The task of amending a statute is solely the responsibility of the
Legislature.9 Mellor v. Berman, 390
Mass. 275, 283 (1983).
-------------------------
8 Indeed, the Electrical Contractors
Association of Greater Boston had an interest in the board's expansion of
authority significant enough to prompt it to file an amicus brief in this case.
See n.4 to the majority opinion.
9 It should be noted that on at least
two occasions, the Legislature has declined to amend the statute specifically
to include within the board's jurisdiction the installation of wires and
equipment using electricity for purposes other than heat, light, or power. See
1975 House Doc. No. 145 (allowing board to regulate installation of wires and
equipment "for carrying or using electricity for light, heat or power
purposes, or any other purposes . . ." [emphasis added]); 1973 House Doc.
No. 4143 (allowing board to regulate installation of wires and equipment
"for carrying or using electricity for light, heat, power, burglar alarm,
fire alarm, sprinkler alarm, x-ray equipment, communication systems and signal
systems . . ."). Although the failure of those two bills to pass might be
interpreted as a legislative judgment that such amendments were unnecessary
because the statute already conferred the broader jurisdiction on the board, it
is far more likely that the failure represents a legislative decision not to
expand the board's jurisdiction. See 2A Sands, Sutherland Statutory
Construction Section 48.18, at 224 (4th ed. 1973), citing Rea v. Aldermen of
Everett, 217 Mass. 427 (1914). The 1975 bill was sponsored by the board.
Page 37
In my view, the words "heat, light and power" must be read as
words of qualification or limitation, from which the court must necessarily
infer the existence and exclusion from c. 141 of other purposes for which
electricity might be used. Such a reading is consistent with the principle
that, as a penal statute, G. L. c. 141, Section 1, must be construed strictly
in determining the scope of its application, see Maria v. State Examrs. of
Electricians, 365 Mass. 551, 554 (1974); Commonwealth v. Brown, supra at 159,
and the principle that "a statutory expression of one thing is an implied
exclusion of other things omitted from the statute." County of Middlesex
v. Newton, 13 Mass. App. Ct. 538, 542-543 (1982), and authorities therein
cited. See Cawley v. Northern Waste Co., 239 Mass. 540, 542-544 (1921)
(implicitly approving portion of city ordinance promulgated in discharge of
city's duty under St. 1890, c. 404, Section 3 [see now G. L. c. 166, Section
32], to provide for appointment or designation of an officer to "supervise
. . . every wire within a building when such wire is designed to carry an
electric light or power current," providing that ordinance did not call
for inspection of electric bell system); Rep. A.G. Pub. Doc. No. 12, at 22-23
(1948) (wires and apparatus for transmission of television signals are not
installed or used for carrying or using "electricity for light, heat and
power purposes" within the meaning of G. L. c. 141, Section 7; nor do they
carry "an electric light, heat or power current" within the meaning
of G. L. c. 166, Sections 30-32). Cf. G. L. c. 166, Section 30 (prescribing,
among other things, insulation requirements for outdoor transmission wires,
where wire is "designed to carry an electric light, heat or power
current" and where "wire is other than a wire designed to carry an
electric light, heat or power current").
There is no rational way to sever any portion of the regulation's language or
otherwise whittle it down to preserve the
Page 38
board's assertion of authority with respect to some aspects of alarm
installation. Therefore, the question whether the board has the authority to
regulate other nonsignaling or higher voltage aspects of the installation of
alarm systems which could pose a threat to public safety, such as "hard
wiring" or the automatic control of ventilation systems, is not presently
before the court. Since the portion of the regulation at issue is on its face
beyond the scope of the board's authority under Section 1, there is no issue
with respect to the adequacy of the plaintiffs' development of the record below
which could preclude entry of judgment declaring that portion of the regulation
invalid. See G. L. c. 231A, Section 2; G. L. c. 30A, Section 7. I would affirm
the judgment of the Superior Court.
Because I would uphold the judgment of the Superior Court declaring the portion
of the regulation at issue invalid as beyond the board's authority under G. L.
c. 141, Section 1, I would not reach the question whether the plaintiffs' work
falls within the exemption for the transmission of intelligence by electricity
contained within G. L. c. 141, Section 7. Were I to reach that question, I
would not necessarily reach the result which the majority reaches.
Page 39
END OF DECISION