MURRY G. SIMON & others [Note 1] vs. STATE EXAMINERS OF ELECTRICIANS.

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, [Note 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

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." [Note 3] There are also, according to the undisputed testimony in the record,

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. [Note 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

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. [Note 5] A 1913 legislative report issued pursuant to a

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. [Note 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

Page 24

advancement, [Note 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

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

Page 26

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. [Note 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.

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. [Note Dissent-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. [Note Dissent-2] The board's contrary contention that the

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, [Note Dissent-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 shock [Note Dissent-4] 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

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. [Note Dissent-5]

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. [Note Dissent-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). [Note Dissent-7] However, these principles are principles of

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. [Note Dissent-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. [Note Dissent-9] Mellor v. Berman, 390 Mass. 275, 283 (1983).

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.