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SJC-12769

KEVIN RICHARDSON, SECOND1 vs. THE UPS STORE, INC., & another.2

Suffolk. April 9, 2020. - October 28, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, 

& Kafker, JJ.3

Notary Public. Statute, Construction.

Certification of a question of law to the Supreme Judicial 

Court by the United States District Court for the District of 

Massachusetts.

Orestes G. Brown for the plaintiff.

Joseph R. Palmore, of the District of Columbia, for the 

defendants.

Michael Walsh, for Walsh & Walsh LLP, amicus curiae, 

submitted a brief.

 

1 Individually and on behalf of all others similarly 

situated.

2 J&V Logistics LLC.

3 Chief Justice Gants participated in the deliberation on 

this case prior to his death.
2

BUDD, J. In this case we have been asked by the United 

States District Court for the District of Massachusetts whether 

G. L. c. 262, §§ 41 and 43, Executive Order Nos. 455 (03-13) and 

455 (04-04), or the codification of such orders within G. L. 

c. 222, limit the fees that a notary public may charge for any 

and all notarial acts to no more than $1.25. The question 

arises in connection with a lawsuit brought by the plaintiff,

Kevin Richardson, II, alleging that the defendants, The UPS 

Store, Inc., and J&V Logistics LLC, the franchise owner, 

overcharged him for notary services. We conclude that the $1.25 

fee cap set forth in G. L. c. 262, § 41, applies only to a

particular notarial act known as "noting," i.e., a step in the 

process of protesting a dishonored negotiable instrument, and 

that the meaning of that section has not been expanded, either

by statute or executive order, to include all notarial acts.4 

And aside from § 41 there currently are no statutes or executive 

orders that cap fees for any other notarial act.

Background. We recite the undisputed facts relevant to the 

certified question. The plaintiff used the services of a notary 

public at the subject UPS store to notarize documents signed by 

the plaintiff or his wife various times between 2012 and 2016. 

On at least three occasions, the plaintiff was charged a total 

 

4 We acknowledge the amicus brief submitted by Walsh & Walsh 

LLP.
3

of ten dollars per service, including $1.25 for the notarization 

and $8.75 for clerical fees.

In August 2016, the plaintiff filed suit against the 

defendants in the Superior Court, alleging violations of G. L. 

c. 262, § 41, and G. L. c. 93A. The defendants removed the case 

to the United States District Court for the District of 

Massachusetts under the Federal Class Action Fairness Act of 

2005, where the plaintiff moved for class certification of 

present and former purchasers of notarization services from the 

defendants for the period between August 30, 2012, to the date 

of judgment, and alleging $5.9 million in damages. The 

defendants opposed class certification and moved to certify to 

this court the question whether § 41 applies to all notarial 

acts as the plaintiff contends. The District Court certified 

the question regarding the scope of § 41, and denied the 

plaintiff's motion for class certification with leave to renew 

within fourteen days of our opinion on this matter.

The certified question5 put to this court asks:

"Does [G. L. c. 262, § 41 or 43,] proscribe fees in excess 

of $1.25 for notarization of a document where the notarial 

act at issue is unrelated to the protest of a bill of 

exchange, order, draft or check for non-acceptance or nonpayment, or of a promissory note for non-payment and what, 

if any, impact do Executive Order Nos. 455 (03-13) and 455 

(04-04) and the codification of Executive Order No. 455 

 

5 The original certified question, which made reference only 

to G. L. c. 262, §§ 41 and 43, was expanded to include Executive 

Order No. 455 and G. L. c. 222 in the inquiry.
4

(04-04) as [G. L. c. 222] in 2016 have on the question of 

whether [G. L. c. 262, § 41 or 43,] proscribe such fees?"

For reasons explained infra, we answer the question "no," G. L. 

c. 262, §§ 41 and 43, do not proscribe fees for acts unrelated 

to the protest of a negotiable instrument, and neither Executive 

Order Nos. 455 (03-13) and 455 (04-04) nor G. L. c. 222 has any

impact on our interpretation of §§ 41 and 43.

Discussion. 1. Scope of G. L. c. 262, § 41. In 

determining the scope of § 41, "[o]ur analysis begins with the 

statutory language, the principal source of insight into 

[l]egislative purpose" (quotation and citation omitted). Dental 

Serv. of Mass., Inc. v. Commissioner of Revenue, 479 Mass. 304, 

306 (2018). Section 41 provides:

"The fees of notaries public shall be as follows: For the 

protest of a bill of exchange, order, draft or check for 

non-acceptance or non-payment, or of a promissory note for 

non-payment, if the amount thereof is [$500] or more, one 

dollar; if it is less than [$500], fifty cents; for 

recording the same, fifty cents; for noting the nonacceptance or non-payment of a bill of exchange, order, 

draft or check or the non-payment of a promissory note, 

seventy-five cents; and for each notice of the nonacceptance or non-payment of a bill, order, draft, check or 

note, given to a party liable for the payment thereof, 

twenty-five cents; but the whole cost of protest, including 

necessary notices and the record, if the bill, order, 

draft, check or note is of the amount of [$500] or more, 

shall not exceed two dollars, and if it is less than 

[$500], shall not exceed one dollar and fifty cents; and 

the whole cost of noting, including recording and notices, 

shall in no case exceed one dollar and twenty-five cents"

(emphasis added).
5

The plaintiff contends that § 41 limits the fees that notaries 

public are permitted to charge for any notarial act to $1.25. 

In support of this interpretation, he points to the last 

sentence in § 41, which states: "[T]he whole cost of 

noting . . . shall in no case exceed one dollar and twenty-five 

cents." We are not convinced.

By its plain language, § 41 applies to fees charged by 

notaries public in connection with the act of "protesting" the 

nonpayment of a negotiable instrument. A protest is a series of 

notarial acts in which a notary public prepares a certificate of 

dishonor verifying that a negotiable instrument, such as a check 

or promissory note, was dishonored by nonacceptance or 

nonpayment. See G. L. c. 106, § 3-505 (b). The certificate is 

used to recover the money owed. See G. L. c. 106, §§ 3-503 (a), 

3-505 (b). Although this process rarely is used in modern 

times, it was a common procedure in 1836, when the law was first 

passed. R.S. (1836), c. 122, § 16.6 Section 41 enumerates a 

 

6 General Laws c. 262, § 41, is the current codification of 

a statute that was originally enacted in 1836 as R.S. (1836), 

c. 122, § 16. Since its enactment in 1836, the statute has 

undergone multiple revisions as the Legislature periodically 

recompiled its statutes. See R.S. (1836), c. 122, § 16; G.S. 

(1860), c. 157, § 13; P.S. (1882), c. 199, § 21; R.L. (1902), 

c. 204, § 31; G. L. c. 262, c. 41 (1921). The final clause, 

providing that "the whole cost of noting, including recording 

and all notices, shall in no case exceed one dollar and twentyfive cents," was introduced in 1839, and has remained unchanged 

since. See St. 1839, c. 93, § 1.
6

variety of fees associated with discrete notarial acts within 

the process of protesting, including two separate fee caps that 

limit the "whole cost of protest" to two dollars if the 

negotiable instrument is worth $500 or more, and $1.50 if the 

negotiable instrument is worth less than $500.

The statute does not define "noting"; thus, it is to be 

"construed according to the common and approved usage of the 

language." G. L. c. 4, § 6, Third. At the same time, however, 

"technical words and phrases and such others as may have 

acquired a peculiar and appropriate meaning in law shall be 

construed and understood according to such meaning." Id. See 

Anderson v. National Union Fire Ins. Co. of Pittsburgh PA, 476 

Mass. 377, 382 (2017).

The plaintiff argues that "noting" should be broadly 

defined according to various dictionary definitions of the verb 

"to note" and that the phrase "the whole cost of noting" refers 

to all notarial acts, thereby limiting the fee for all notarial 

acts to $1.25. However, there is ample evidence, including the

unique context and use of the term in § 41, that it is used as a 

term of art, limited in meaning and application.

When § 41 was enacted in the mid-1800s, "noting" commonly 

was known as a step in the process of protesting the failure to 

honor a negotiable instrument. See F.M. Hinch, John's American

Notary and Commissioner of Deeds Manual § 442, at 281 (3d ed. 
7

1922). It refers to a notary's act of initialing, dating, and 

briefly describing the stated reason for the failure to honor a 

negotiable instrument as a precursor to issuing a formal 

certificate of protest. See A.E. Piombino, Notary Public 

Handbook: Principles, Practices & Cases, National Edition 177 

(1996) (defining "note of protest" as "brief written statement 

of the fact of a protest, signed by the notary public on the 

bill, which will be transcribed into proper form at a later 

time"); J.O. Skinner, A Book of the Laws of Washington Relating 

to Notaries Public 234 (1911) ("The 'noting' of a bill is merely 

a preliminary step to the protest . . ."). Black's Law 

Dictionary likewise refers to "noting" in its definition of 

"protest," describing it as "[a] notary public's written 

statement that, upon presentment, a negotiable instrument was 

neither paid nor accepted" and stating that this process is also 

termed "initial protest" and "noting protest." Black's Law 

Dictionary 1479 (11th ed. 2019).

By noting the protest, notaries could date certificates

when they were received, making it easier to comply with time 

restrictions associated with protesting. See Bailey v. Dozier, 

47 U.S. 23, 29 (1848) ("if the bill has been duly presented for 

acceptance, or payment, and dishonored, and a minute made, at 

the time, of the steps taken, which is called noting the bill, 

the protest may be drawn up in form afterwards, at the 
8

convenience of the notary"); Allen v. Merchant's Bank of N.Y., 

22 Wend. 215, 242 (N.Y. 1839) (when protesting foreign bill, 

sufficient to "note the protest on the day of demand, and it may 

be drawn up in form at a future period" [citation omitted]).

Various courts, including this one, referred to "noting" in 

this context in the 1800s. See Opinion of the Justices, 150 

Mass. 586, 588 (1890) (recognizing "noting and extending of 

marine protests" as one of principal acts of notaries public 

within Commonwealth). See also Bailey, 47 U.S. at 29; Smith v. 

Roach's Ex'r, 46 Ky. 17, 19 (1846); Allen, 22 Wend. at 242; Bank 

of the Ohio Valley v. Lockwood, 13 W. Va. 392, 432-433 (1878). 

Thus, we conclude that "noting" as it appears in § 41 is used as 

a term of art rather than as the broader definition of the verb 

"to note," as in "to make a brief written statement."7 See 

Black's Law Dictionary 828 (1st ed. 1891).

 

7 Even if we were to adopt the nontechnical definition of 

"noting" as "mak[ing] a brief written statement," as discussed 

infra, the subject matter of the statute dictates that we limit 

the scope of this general term to protests only. Section 41 

sets fees for "the protest of a bill of exchange, order, draft 

or check for non-acceptance or non-payment, or of a promissory 

note for non-payment," "recording the same," "noting the nonacceptance or non-payment of a bill of exchange, order, draft or 

check or the non-payment of a promissory note," "each [such] 

notice . . . given to a party liable for the payment thereof," 

and "the whole cost of protest," before using the general phrase 

"the whole cost of noting." G. L. c. 262, § 41. Because all of 

the other acts enumerated in § 41 are unambiguously related to 

the process of protest, "noting" must likewise refer, at its 

broadest, to brief written statements made in the course of a 

protest.
9

Other rules of statutory construction also point to this 

result. The canon of noscitur a sociis counsels that terms must 

be read within the context of the statute in which they appear. 

"[A] general term in a statute or ordinance takes meaning from 

the setting in which it is employed. The literal meaning of a 

general term in an enactment must be limited so as not to 

include matters that, although within the letter of the 

enactment, do not fairly come within its spirit and intent." 

People for the Ethical Treatment of Animals, Inc. v. Department 

of Agric. Resources, 477 Mass. 280, 287-288 (2017), quoting 

Kenney v. Building Comm'r of Melrose, 315 Mass. 291, 295 (1943). 

Section 41 sets a schedule of fees for particular notarial acts, 

all of which unambiguously refer to acts related to the process 

of protest. The final clause, setting a fee for "the whole cost 

of noting," takes its meaning from the rest of § 41, and 

therefore must also refer to a particular protest-related act, 

that is, the technical definition of noting an initial protest, 

discussed supra. Additionally, "[w]here the Legislature uses 

the same words in several sections which concern the same 

subject matter, the words must be presumed to have been used 

with the same meaning in each section" (quotation and citation 

omitted). Insurance Rating Bd. v. Commissioner of Ins., 356 

Mass. 184, 188-189 (1969). Section 41 uses "noting" twice in 

setting fee limitations. Its first use sets a fee limit of 
10

seventy-five cents for "noting the non-acceptance or nonpayment 

of a bill of exchange," firmly contextualizing "noting" as a 

notarial act within the scope of protest. Section 41 then uses 

"noting" within the clause at issue, limiting the "whole cost of 

noting" to $1.25. Due to the Legislature's repeated use of 

"noting" within § 41, we must presume that the Legislature 

intended to use the term consistently throughout the statute, 

and therefore interpret the second use of noting to be limited 

by the first.

We also must treat the Legislature's decision not to use a 

broad catch-all phrase such as "notarial act" at the end of § 41 

as intentional, and therefore cannot imply its meaning where the 

phrase was excluded. See Commonwealth v. Gagnon, 439 Mass. 826, 

833 (2003), quoting 2A N.J. Singer, Sutherland Statutory 

Construction § 46.06, at 194 (6th ed. rev. 2000) ("[W]here the 

legislature has carefully employed a term in one place and 

excluded it in another, it should not be implied where 

excluded"). The Legislature defines "notarial act," or 

"notarization," as "an act that a notary public is empowered to 

perform" in G. L. c. 222, § 1. Among other things, G. L. 

c. 222, discussed infra, sets forth rules and regulations for 

notaries public. See G. L. c. 222, §§ 15, 16, 22, 23. In 

contrast, § 41 excludes any mention of "notarial acts"

generally, and instead uses precise language throughout the 
11

section to regulate the steps of a protest. We must presume 

that had the Legislature intended the final clause in § 41 to 

limit fees for all notarial acts, it would have done so.

Finally, if we were to interpret the last mention of 

"noting" in § 41 as meaning all notarial acts so as to limit the 

fee for all notarial acts to $1.25, that would render other

parts of § 41 both ambiguous and meaningless, a result we 

eschew. See King v. Town Clerk of Townsend, 480 Mass. 7, 11 

(2018) (declining to "adopt an interpretation that renders the 

act ambiguous"); Phillips v. Equity Residential Mgt., L.L.C., 

478 Mass. 251, 258 (2017), quoting Adamowicz v. Ipswich, 395 

Mass. 757, 760 (1985) ("so long as it yields a 'logical and 

sensible result,' we do not interpret a statute so as to render 

any portion of it meaningless"); ROPT Ltd. Partnership v. Katin, 

431 Mass. 601, 603 (2000) (court may not interpret statutes to 

produce illogical result).

Interpreting "the whole cost of noting" to mean the cost of 

any notarial act would result in the final clause of § 41 

capping fees at $1.25 for all notarial acts, including the 

various acts of protest regulated in earlier clauses of § 41. 

This interpretation of the "whole cost of noting" creates direct 

conflict with the earlier clause that caps fees for the "whole 

cost of protest" at two dollars for negotiable instruments with 

a value of $500 or more and at $1.50 for negotiable instruments 
12

with a value under $500. Protest, as a notarial act, would be 

regulated both by the "whole cost of protest" clause with fee 

limits of two dollars or $1.50, and by the "whole cost of 

noting" clause, which sets a cumulative cap of $1.25 under this

interpretation. Defining "the whole cost of noting" as the cost 

of any notarial act renders the fee limits on the "whole cost of 

protest" meaningless because of the conflicting fee caps and 

creates ambiguity over which fee limitation applies when 

protesting negotiable instruments. We reject this 

interpretation, as it produces an illogical and contradictory 

result. See Commonwealth v. Rosado, 450 Mass. 657, 663 (2008), 

quoting ROPT Ltd. Partnership, 431 Mass. at 603 (rejecting 

interpretation that would "produce an illogical result").

For all of the reasons outlined supra, we conclude that the 

Legislature used "noting" as a term of art describing a specific 

step in the process of noting and did not intend for it to refer 

to all notarial acts.8

 

8 The plaintiff points to legislative history to support his 

interpretation of § 41. He contends that, in adding the "whole 

cost of noting" clause to § 41 in 1839, three years after the 

statute was enacted, the Legislature intended to insert a catchall fee for all notarial acts, as was present in two colonial 

laws regulating notary fees that predated § 41. See R.S. 

(1836), c. 122, § 16; St. 1839, c. 93, § 1. The first colonial 

regulation of notary public fees was enacted in 1650 and 

included a catch-all fee for "any kind of [writing] not hereby 

specially [provided] for." See 3 Records of the Governor and 

Company of the Massachusetts Bay in New England 210 (1854). By 
13

2. Section 43. The plaintiff argues that § 43, which 

governs the fees for official duties or services, confirms that 

the fee for any notarial act is capped at $1.25. This argument 

is misplaced. General Laws c. 262, § 43, provides: "The fees 

of public officers for any official duty or service shall, 

except as otherwise provided, be at the rate prescribed in this 

chapter for like services." The plaintiff apparently contends 

that § 43 applies the $1.25 fee limit set forth in § 41 to "like 

services," and that "like services" means all notarial acts. 

This argument presupposes that § 41 sets a $1.25 fee cap, which, 

as discussed supra, is an interpretation we reject.

The ordinary meaning of "like" is "[e]qual in quantity, 

quality, or degree; corresponding exactly," or "[s]imilar or 

substantially similar; of much the same nature." Black's Law 

Dictionary 1113 (11th ed. 2019). "Like services," then, refers 

to acts that are virtually identical to ones with fees 

prescribed in G. L. c. 262. Our interpretation of the precursor 

 

1713, a different fee schedule for notaries public had been 

established, including a similar catch-all provision for "other 

writings" on a per page basis. See P.L. (1713-1714), c. 4. 

However, the Legislature did not codify either of the colonial 

fee schedules when it enacted the statute at issue in 1836. 

Further, when the Legislature added the "whole cost of noting" 

clause in 1839, it did not adopt the catch-all language of the 

colonial acts, which referred to "any kind of [writing]" and 

"other writings"; instead, the Legislature used "noting," which, 

as discussed supra, is a term with a well-established technical 

meaning.
14

statute9 to § 43 is consistent with this view. In Howard v. 

Proctor, 7 Gray 128 (1856), a tax collector charged the 

plaintiffs a commission for costs related to the collector's 

seizure and sale of the plaintiffs' horse to recover unpaid 

taxes. Id. at 130, 132-133. Although no statute specifically 

prescribed the fees chargeable by a tax collector, we reasoned 

that, under the precursor statute to § 43, the tax collector was 

permitted to charge a fee equal to the statutory fee prescribed 

for the same act carried out by a sheriff. Id. at 132-133 ("The 

like services are those of the sheriff"). In Converse v. 

Jennings, 13 Gray 77 (1859), we concluded that a tax collector 

could not charge the statutory fee chargeable by a sheriff for 

executing a levy on real estate because the tax collector's 

action of stopping the sale of a property for nonpayment of 

taxes was not a "like service" to the sheriff's levy on a 

completed sale. Id. at 78. Howard and Converse effectuated our 

understanding that fees for "like services" means statutorily 

prescribed fees for the same services performed by a different 

 

9 The relevant statutory language was first enacted in 1836:

"In all cases, not expressly provided for by law, the fees of 

all public officers, for any official duty or service, shall be 

at the same rate as those prescribed in this chapter for the 

like services." R.S. (1836), c. 122, § 21. Over the subsequent 

decades, this statute was slightly revised as the Legislature 

recompiled its statutes. See G.S. (1860), c. 157, § 14; P.S. 

(1882), c. 199, § 23; R.L. (1902), c. 204, § 33; St. 1913, 

c. 611, § 16. It was renumbered as G. L. 262, § 43, in 1921, 

where it has remained with the relevant language unchanged.
15

type of official. See Simmons v. County of Suffolk, 230 Mass. 

236, 238 (1918) (applying same statutory standard of 

compensation to different justices and clerks for performing 

same "like" services).

Thus, read together with § 41, § 43 simply requires other 

officials who are authorized to provide the services described 

in § 41 to limit the fees for such services to those enumerated 

in § 41. For example, a "United States consul or vice consul" 

is also permitted to prepare a protest pursuant to G. L. c. 106, 

§ 3-505 (b). Section 43 requires a consul who provides that 

service to limit the fees charged to those set forth in § 41. 

Section 43 does not, by reference to "the rate prescribed in 

this chapter for like services," extend the $1.25 fee limit for 

the "whole cost of noting" in § 41 to all notarial acts. As 

discussed supra, "noting" a protest is a discrete notarial act. 

It is not a service "like" other notarial acts, such as 

notarizing a document or witnessing a signature. For these 

reasons, we conclude that § 43 has no impact on the scope or 

meaning of § 41.

3. Impact of subsequent executive orders and legislation 

on scope of § 41. The plaintiff additionally argues that, even 

if "noting" was used as a term of art when § 41 was passed in 

1836, by referencing § 41 in Executive Order No. 455, in effect 

the Governor altered the section so that the meaning of the 
16

phrase "the whole cost of noting, including recording and 

notices, shall in no case exceed [$1.25]" was no longer limited 

to protests but was extended to any notarial act.10 We do not 

agree.

In 2003, the Governor issued Executive Order No. 455, 

entitled "Standards of Conduct for Notaries Public," to provide 

contemporary guidelines regarding the proper duties and conduct 

of notaries public.11 See Executive Order No. 455 (03-13). The 

executive order provided notaries public with notice of what 

behavior constituted misconduct and would be considered by the 

Governor when deciding whether to appoint, reappoint, or remove 

a notary's commission. See Executive Order No. 455 (04-04), 

 

10 We note that in 2016, in addition to codifying 

substantial portions of Executive Order No. 455, the Legislature 

added §§ 16 and 19 to G. L. c. 222, which provide that notaries 

public cannot charge fees in excess of "the fee provided for in 

[G. L. c. 262, § 41,] or any other general or special law or 

executive order," and must tender services when such fee is paid

(emphasis added). See G. L. c. 222, §§ 16 (a) (vi), 19, 

inserted by St. 2016, c. 289, § 6. Thus, the Legislature has 

authorized the Governor to promulgate fee limitations for 

notarial acts, in addition to the Governor's constitutional 

authority over the appointment and removal of notaries public. 

See arts. 4 and 37 of the Amendments to the Massachusetts 

Constitution.

11 In 2004, the Governor issued a revised Executive Order 

No. 455, which made multiple revisions to the original order. 

Compare, e.g., Executive Order No. 455 (04-04), § 1, with 

Executive Order No. 455 (03-13), § 1. However, the relevant 

provisions of Executive Order No. 455 are identical in both 

orders. See Executive Order No. 455 (04-04), §§ 2, 6(a)(6), 7; 

Executive Order No. 455 (03-13), §§ 2, 6(a)(6), 7.
17

§ 1(a). With regard to § 41, it provided: "A notary public 

shall not perform a notarial act if . . . the notary public will 

receive as a direct result of the notarial act any commission, 

fee, . . . or other consideration exceeding in value the fees 

set forth in [G. L. c. 262, § 41] . . . ." Id. at § 6(a)(6). 

It similarly required that "[a] notary shall perform any 

notarial act described in this executive order for any person 

requesting such an act who tenders the fee set forth in [G. L. 

c. 262, § 41]," unless certain circumstances not relevant here 

are present. Id. at § 7.

According to a document published in 2003 by the Governor's 

legal counsel, entitled "Frequently Asked Questions and 

Clarifications: Executive Order 455 (03-13)," the primary 

purpose of Executive Order No. 455 was to prevent fraud, 

forgery, and other misconduct by notaries public.

Importantly, although Executive Order No. 455 referenced 

§ 41, the clear intent was to provide a mechanism to enforce

that section, not to interpret or modify it.12 See Frequently 

 

12 Earlier, in 1996, the Secretary of the Commonwealth 

published a brochure entitled "Guidelines for the Notary 

Public." Under the heading "What fees may a notary legally

charge?" the document provides:

"According to their fee statute [G. L. c. 262, § 41 (1986 

ed.)], notaries public may charge no more than one dollar 

and twenty-five cents ($1.25) for noting and recording a 

document and no more than two dollars ($2.00) for 
18

Asked Questions and Clarifications: Executive Order 455 (03-

13), supra ("Does the Executive Order change any statutes? No. 

If there is a statutory requirement in place, the Executive 

Order does not change that requirement").

In 2016, the Legislature enacted a sweeping reform in 

notary public law with the passage of St. 2016, c. 289, entitled 

"An Act regulating notaries public to protect consumers and the 

validity and effectiveness of recorded instruments". The 

statute significantly amended G. L. c. 222 and imposed the first 

significant regulations on the conduct of notaries public in 

decades. See, e.g., G. L. c. 222, §§ 13 (qualifications for 

appointment), 15 (listing notarial acts and prescribing forms 

for acknowledging signatures), 16 (prohibiting certain acts), 17

(prohibiting notaries from practicing law unless licensed 

attorneys), 21 (requiring specific language in notary public 

 

protesting commercial paper. As a notary, you are a public 

servant and should be available to perform a public service 

at a reasonable cost. Excessive charges could result in 

complaints to the Governor's Council."

The plaintiff contends that this publication indicates that the 

Secretary understood G. L. c. 262, § 41, as setting a $1.25 fee 

for "noting and recording" any document. However, this 

publication, like Executive Order No. 455, simply refers to 

§ 41; it does not purport to modify its meaning. Even more 

telling, the brochure admonishes notaries that they should be 

"available to perform a public service at a reasonable cost" and 

that "[e]xcessive charges could result in complaints to the 

Governor's Council." There would be no need for such warnings 

if § 41 set the fee for any notarial act at no more than $1.25.
19

advertisements in languages other than English). In doing so, 

the Legislature codified and replaced Executive Order No. 455's 

provisions referencing G. L. c. 262, § 41, by including G. L. c. 

222, §§ 16 and 19, which largely mirror the language of the 

order. See Executive Order No. 571 (Oct. 6, 2016) (repealing 

Executive Order No. 455, effective on same date on which St. 

2016, c. 289, went into effect).

Using virtually the same language as Executive Order No. 

455, G. L. c. 222, § 16 (a) (vi), prohibits a notary public from 

performing "a notarial act" for any fee "exceeding the maximum 

fees provided in [G. L. c. 262, § 41,] or any other general or 

special law or executive order." Section 19 provides that a 

notary public must perform "a notarial act" for any person 

tendering "the fee provided for in [G. L. c. 262, § 41,] or any 

other general or special law or executive order," subject to 

certain exceptions not relevant here. In turn, G. L. c. 222, 

§ 1, defines "notarial act" and "notarization" as "an act that a 

notary public is empowered to perform."

The plaintiff argues that the references to § 41 in §§ 16 

and 19 extend the $1.25 fee cap in § 41 to all notarial acts,

because G. L. c. 222 expressly defines "notarial act" to 

encompass any act performed by a notary public and §§ 16 and 19 

do not state that the fees set forth in § 41 are prescribed only 

for acts related to protest. However, merely referencing a 
20

previous statute by title and chapter does not suffice to amend 

or alter the meaning of the referenced statute.

By their plain language, §§ 16 and 19 require a notary 

public to provide services after receipt of the appropriate 

fees, see G. L. c. 222, § 19, and prohibit a notary public from 

receiving payment in excess of the maximum fees, G. L. c. 222, 

§ 16 (a) (vi). Accordingly, these sections refer not only to 

§ 41, but also to the fees prescribed for a "notarial act" by 

"any other general or special law or executive order." G. L. 

c. 222, §§ 16 (a) (vi), 19. At the time the Governor issued 

Executive Order No. 455, G. L. c. 262, § 41, was the only 

statutory authority to prescribe fees chargeable by notaries 

public, and it remains so today. Nonetheless, the Legislature's 

inclusion of "any other" source of fee limits contemplates that 

if the Legislature enacts subsequent fee limits for notarial 

acts other than protests, §§ 16 and 19 will function to enforce 

those new limits as well. Thus, just like the executive order 

that preceded them, references to § 41 in §§ 16 and 19 simply 

enforce the fee limitations established in § 41 by establishing 

civil and criminal penalties for charging excessive fees for the 

services enumerated in § 41. See G. L. c. 222, § 18.

The plaintiff also contends that G. L. c. 222, § 23,

evidences the Legislature's implicit understanding that G. L. 

c. 262, § 41, limited fees for all notarial acts. Section 23 
21

prohibits charging any fee for certain notarial acts: 

"Notwithstanding [G. L. c. 262, § 41], no fee shall be charged 

by a notary public to notarize a signature on an absentee ballot 

identification envelope or other voting materials or on any 

application or claim by a United States military veteran for a 

pension, allotment, allowance, compensation, insurance or other 

veterans' benefit." Because § 23 forbids fees for specific acts

unrelated to protest "[n]otwithstanding" G. L. c. 262, § 41, the 

plaintiff argues that the Legislature must have understood § 41 

to regulate all notarial acts, not just protest-related ones. 

We have acknowledged that "[t]he use of such a 'notwithstanding' 

clause clearly signals the drafter's intention that the 

provisions of the 'notwithstanding' section override conflicting 

provisions of any other section." Attorney Gen. v. Commissioner 

of Ins., 450 Mass. 311, 319 (2008), quoting Cisneros v. Alpine 

Ridge Group, 508 U.S. 10, 18 (1993). However, the 

"notwithstanding" clause in § 23 does not change the complete 

absence of language in G. L. c. 222 purporting to extend the 

$1.25 fee limit in § 41 to all notarial acts. Further, 

regardless of the Legislature's understanding of the scope of 

§ 41, referencing the section in G. L. c. 222, or anywhere else,

does not and cannot have the effect of amending § 41 itself. 

That is, even if the Legislature passed G. L. c. 222 with the 

mistaken assumption that § 41 limits the maximum fees for all 
22

notarial acts, this would not broaden § 41's original scope. 

See Massachusetts Comm'n Against Discrimination v. Liberty Mut. 

Ins. Co., 371 Mass. 186, 194 (1976) ("[t]he views of a 

subsequent [Legislature] form a hazardous basis for inferring 

the intent of an earlier one" [citation omitted]).

Nothing in the language or legislative history of G. L. 

c. 222, §§ 16 and 19, or any other sections of c. 222, indicates 

that the Legislature intended to change the scope of the fee

structure prescribed by § 41.13

Conclusion. We answer the certified question as follows: 

No -- G. L. c. 262, §§ 41 and 43, do not proscribe fees in 

excess of $1.25 for notarial acts unrelated to the act of 

protest, and neither Executive Order No. 455 nor G. L. c. 222 

has any impact on our interpretation of either section.

The Reporter of Decisions is to furnish attested copies of 

this opinion to the clerk of this court. The clerk in turn will 

transmit one copy, under the seal of the court, to the clerk of 

the United States District Court for the District of 

Massachusetts, as the answer to the question certified, and will 

also transmit a copy to each party.

 

13 Of course, should there be a desire on the part of the 

Legislature or the Governor (by way of G. L. c. 222, § 19; see 

note 10, supra) to cap fees at $1.25 for all notarial acts, they

can do so directly, by way of statute or executive order,

respectively.