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Full text of "Report of the attorney general for the year ending .."

Public Document 



No. 12 



Cfte Commontoealtl) of e^asmtbmtm 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1929 




Public Document No. 12 



Clje Commontocaltj) of agassatbusetts 



REPORT 



(iii.: ATTORNEY GENERAL 



Year ending November 30, 1929 " >| 







C!)e Commontoealtf) of gia00acf)u$etts 



Department of the Attorney General, 
Boston, January 15, 1930. 

To the Honorable Senate and House of Representatives. 

I have the honor lo transmit herewith the report of the Depart- 
ment for the year ending November 30, 1929. 

Very respectfully, 

JOSEPH E. WARNER, 

Attorney General. 






Ci)e Commontoealtfe of Q^assacfjusetts 



DEPARTMENT OF THE ATTORNEY GENERAL, 
State House. 



Attorney General. 
JOSEPH E. WARNER. 



Assistants. 



Franklin Delano Putnam. 
Roger Clapp. 
Charles F. Lovejoy. 
Emivl-'l Fall Schofield. 
Gerald J. Callahan. 
James S. Eastham. 
R. Ammi Cutter. 
Edward T. Simoneau. 
Stephen D. Bacigalupo. 
George B. Lourie. 
Louis H. Sawyer. ^ 

Chief Clerk. 
Louis H. Freese, 

Cashier. 
Harold J. Welch. 



1 Appointed May 1, 1929. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Year. 

General appropriation for 1929 $106,000 00 

Appropriation for small claims 5,000 00 

Supplemental appropriation 3,000 00 

Special attorney for electric light rates cases 25,000 00 



$139,000 00 



Expenditures. 

For salary of Attorney General $8,000 00 

For law library 555 05 

For salaries of assistants 47,126 99 

For salaries of all other employees 19,803 46 

For legal and special services 10,694 78 

For office expenses and travel 4,927 31 

For court expenses 2,810 36 

For small claims ' . . . . 1,888 22 

For publication of opinions 4,420 31 

For special attorney for electricj^light rates cases 20,000 00 

Total expenditures $120,226 48 



Cfje Commontoealti) of g^a00acf)U0etts 



Department of the Attorney General, 
Boston, January 15, 1930. 

To the Honorable Senate and House of Repi'esentatives. 

Pursuant to the provisions of section 11 of chapter 12 of the 
General Laws, I herewith submit my report. 

The cases requiring the attention of this Department during the 
year ending November 30, 1929, to the number of 10,125 are tabu- 
lated below: 

Corporate franchise tax cases 1,656 

Extradition and interstate rendition 273 

Grade crossings, petitions for abolition of 55 

Land Court petitions 132 

Land-damage cases arising from the taking of land: 

Department of Public Works 76 

Department of Mental Diseases 8 

Department of Conservation 1 

Department of Public Health 3 

Department of Correction 3 

Metropolitan District Commission 62 

Metropolitan District Water Supply Commission 15 

Miscellaneous cases 947 

Petitions for instructions under inheritance tax laws 48 

Public charitable trusts 275 

Settlement cases for support of persons in State hospitals . . . . 15 
All other cases not enumerated above, which include suits to require the 
filing of returns by corporations and individuals and the collection of 

money due the Commonwealth 6,525 

Indictments for murder, capital cases 31 

Disposed of ,20 

Now pending 11 



I. ADMINISTRATION OF CRIMINAL JUSTICE SUPERVISED 
BY THE ATTORNEY GENERAL. 

It is the duty of the Attorney General to "take cognizance of all viola- 
tions of law . . . affecting the general welfare of the people ..." In any 
criminal proceedings undertaken as a result of such cognizance, the district 
attorneys may assist him, and under his direction act for him. (G. L., c. 
12, § 10.) 

The district attorneys appear for the Commonwealth in the Superior 
Court in all cases arising within their respective districts, and "aid the 
attorney general in the duties required of him, and perform such of his 
duties as are not required of him personally." (G. L., c. 12, § 27.) 

The administration of criminal justice, therefore, is effected in general 
either through the office of the Attorney General or the offices of the district 
attorneys in prosecution of violations of law, with which, by statute, he is 
primarily charged, or effected through the offices of the district attorneys 
in prosecution of violations of law arising in their several districts, with 
which, by statute, they are primarily so charged. 

The fourteen counties of the Commonwealth are divided into eight dis- 
tricts with district attorneys, as follows: 

Western (Berkshire and Hampden Counties), Charles R. Clason. 
Northwestern (Hampshire and Franklin Counties), Charles Fairhurst. 
Middle (Worcester County), Charles B. Rugg. 
Northern (Middlesex County), Robert T. Bushnell. 
Eastern (Essex County), William G. Clark. 
Suffolk (Suffolk County), WilUam J. Foley. 

Southeastern (Norfolk and Plymouth Counties), Winfield M. Wilbar. 
Southern (Bristol, Barnstable, Dukes and Nantucket Counties), William C. 
Crossley. 

In so far as law enforcement is effected by prosecutions of violations 
of law in the Superior Court, these eight district attorneys and the 
Attorney General are the sole units upon which the people must rely. 
Law enforcement primarily in the various cities and towns lies within 
the purview of the district and municipal courts and city and town 
oflficers; the measure of its aggressiveness must depend for its stimulus 
upon the genuineness of community sentiment. 

The mere number of undisposed of cases upon a criminal docket is 
entitled to little significance; as, for example, it records every defend- 
ant not yet in custody; already found guilty by verdict or plea but 
awaiting sentence; on probation; complying with orders of court as 
to payments; insane; under observation for insanity; defaulted; booked 
after last court sitting. Nor can mere numbers be taken as sole index 
to determine increase or decrease of crime or of criminals. Every so- 
called "count" in an indictment is a "case." Several counts in an 



P.D. 12. 7 

indictment may but relate to the various aspects of a single crime. A 
verdict on a single count may eliminate all the others. Several ''cases" 
may apply to but one individual. 

The sum total of cases is not a fair standard of increase or decrease of 
criminality, as such total necessarily includes both the misdemeanor and 
the felony. Felony alone leads to state prison. (G. L., c. 274, § 1.) A 
sober gauge of criminality is the prevalence of felony. 

Nor is the number of pending triable cases of itself a basis for true 
comparison either as to the efficiency or zeal of a district attorney. In 
some districts criminal sittings are had more often and more continu- 
ously than in others, affording greater facility for hearing and disposition 
of cases. In two counties the sitting of the Superior Court, in each, is a 
mixed session for the transaction of both civil and criminal business, 
which, of course, curtails opportunity for disposition of felonies; and in 
one of these there has been no court sitting since April, particularly for the 
disposition of misdemeanors. 

Some districts are bounded in a single county and have a single trial 
docket; others have two or more counties, with intercepted court sessions. 
The districts vary also in character. The Northern is considered largest 
in population plus area; Suffolk, most constricted in area and congested 
in population, had, this year, 40 per cent of the State's criminal business; 
the Southern is the rangiest, with Bristol County, urban and rural; 
Barnstable, doubly coast bordered, stretching more than seventy miles; 
old Nantucket, sea girt; and the County of Dukes County, the Isle of 
Marthas Vineyard. Lack of uniformity makes comparison impossible. 

The dockets disclose disposal of 17,534 cases, and in general, that there 
are pending but four triable murder cases, not a great number of felonies, 
nor an unusual number of misdemeanors; that both felonies and mis- 
demeanors have been tried without delay; that appellants from lower 
courts have not benefited by appeals; that the criminal dockets are not 
congested; that district attorneys are now ready to prosecute at once 
violations as they shall arise; that the violators of law in this Common- 
wealth can find no comfort in any reliance upon a congested docket 
either to delay trial or to barter the riddance of a case for a plea to a 
lesser offense. We challenge historians to show any period in comparable 
annals of the Bay State when criminal justice has been swifter or surer 
than it is today. 

In capital cases the statute already requires that, whenever a person is 
held in custody on indictment by a grand jury, the State be ready to 
prosecute at the sitting of the court next after six months from the date of 
indictment. (G. L., c. 277, § 72.) Another statute prescribes precedence 
for trial of felonies and liquor violations. (G. L., c. 212, §§ 24-29; St. 1926, 
c. 228.) But let it be particularly noted that in all districts the trial of a 
felony invariably is had at the sitting of the court immediately subsequent 
to the indictment. 



8 P.D. 12. 

Moreover, the use of district court judges sitting in the Superior Court 
to hear misdemeanor cases, begun in 1923, has proved of great value. So, 
congestion of the criminal docket has almost vanished and clearance has 
been promoted, with a logical and subsequent specialized attention to both 
groups, thereby facilitating and particularizing misdemeanor dispositions 
as well as assuring more careful and thorough trial of those on appeal. 
This procedure has demonstrated the futility of frivolous appeals. 

In the Western District, Mr. Clason reports that there are 63 cases pend- 
ing in Berkshire and 190 in Hampden. Of the 63 cases in Berkshire, ex- 
cluding secret indictments and defendants on probation, there are but 35 
pending triable cases — all misdemeanors, principally appeals from the 
lower court since the last sitting of the Superior Court in July, with pros- 
pect of disposition at the January sitting in 1930; that, of the cases dis- 
posed of in that county during the current year, approximately a third 
were those arising since January 1, 1929; that the oldest pending cases 
are a non-support from 1927 and only 9 from 1928 (4 of which are bails) ; 
that as to the 190 cases pending in Hampden, the misdemeanors concern 
but 54 defendants, the felonies but 3; that on January 1, 1929, the number 
of cases pending was less than half the number pending January 1, 1927; 
and that by January 1, 1930, there will be about one-fifth of this half; 
that the trial of the last murder case in this county was on October 1, 1928, 
within five months from the date of indictment, obtained at the very first 
sitting of the grand jury after commission of the murder. 

In the Northwestern District, Mr. Fairhurst reports that the Hamp- 
shire County docket affects 60 defendants; 5 felonies, with plea of guilty 
in 1; no court sitting since April for disposition of misdemeanor balance; 

1 murder case, with sanity not yet determined; in Franklin County, 

2 felonies, and 4 misdemeanors. 

In the Middle District, Mr. Rugg reports 14 criminal cases pending 
in Worcester County, with pleas of guilty in 8; none of murder, man- 
slaughter, or robbery; that, in the only two capitals occurring and tried 
in the last two years, conviction in one was had two months after arrest 
of the accused, and in the other, three months after commission of the 
murder; that in the four years, January 1, 1920, to January 1, 1924, 
the number of docketed cases nearly doubled; that there has been a 
steady annual reduction since, so that, although January, 1929, showed 
shght increase over January, 1928, the number then pending was only 
300 more than in January nine years before. 

In the Northern District, Mr. Bushnell reports that in Middlesex 
County there are no murder cases pending; that all cases were 
disposed of in the arduous ten months of court sittings. 

In the Eastern District, Mr. Clark reports only one murder case pend- 
ing, with defendant under observation; that the felony docket is in better 
condition than ever before; that in this district there are five trial justices 
whose jurisdictions are so limited that many misdemeanors, usually dealt 



P.D 12. 9 

with by district courts, require grand jury proceedings, augmenting mis- 
demeanor totals. 

In the Suffolk District, Mr. Foley reports that there are but two triable 
murder cases pending, murders committed in September and October 
last; that in five others, he awaits arrest of defendants in three and res- 
toration to sanity in two; that of total pending cases, those prior to Jan- 
uary 1, 1928, involve but seven defendants not yet in custody, or sane; 
that the total is less than half that of January, 1929, which was then the 
lowest recorded; that during his administration one trial for murder was 
had within sixty-seven days from the date of murder, and no murder trial 
has been had later than seven months after the date of murder, including 
indictment and apprehension. 

In the Southeastern District, Mr. Wilbar reports that in Norfolk and 
in Plymouth counties no triable murder case pending; that in the other 
capital cases, insanity or question of sanity prevents trial; in Plymouth 
County but one felony pending (polygamy), and not more than four 
larcenies ; that the current total in the district is about the same as in 1928, 
with a slight decrease in cases for prosecution of liquor violations. 

In the Southern District, Mr. Crossley reports no capital case pending 
in the four counties; few felonies of magnitude; that in Barnstable County 
the misdemeanor list is low; in Nantucket County, two misdemeanors; 
in Dukes County, two misdemeanors, and a recent indictment for assault 
to murder and charges for robbery undisposable until the next court ses- 
sion in April; that in Bristol County, for one example, in the current year, 
five defendants were apprehended, indicted, convicted and sentenced, four 
of them receiving long sentences, on charges arising out of a robbery at 
gun point, — all within sixteen days. 

Recommendations of District Attorneys. 

The recommendations of the district attorneys in which I concur are 
as follows: 

1. That there be revision and clarification of the criminal statutes, to 
the end that they may be carefully harmonized; that this be done by a 
learned commission of wide practical experience in the criminal law, 
appointed by the Governor; that a final report be required not earlier 
than the second General Court from the date of its appointment; that 
it may recommend substantive changes and repeal of obsolete and archaic 
laws. 

The learned Judicial Council is chiefly, if not principally, concerned 
with procedure. Though a special commission under Res. 1923, c. 34, 
made investigation "relative to the criminal law," its constructive report 
stated that substantive changes were not within the scope of its authority, 
and that, even if they had been, such fundamental changes could not be 
sufficiently formulated in the few months designated in the resolve. 



10 P.D. 12. 

Certain private 'agencies have recently undertaken to study some aspects 
of the substantive and procedural criminal law in force in Massachu- 
setts. Notable among these investigations now in progress is that of 
the Harvard Law School Committee, authorized by the President and Fel- 
lows of Harvard College to make use of certain of the resources of the 
Milton Fund for this purpose. This investigation, which was first under- 
taken some two years ago, has not yet been terminated by a formal 
report. The fact that the committee has been at work so long indicates 
the amount of time needed to obtain and digest the statistics essential 
to a comprehensive report. Despite the fact that any commission 
appointed by the Governor will presumably have at its disposal the 
work of various private agencies, including that of the Harvard Law 
School Committee, it will be necessary, in my opinion, to give to the 
commission at least two years in which to gather and compile informa- 
tion and data, and probably a further period in which to prepare adequate 
and well-considered recommendations. 

2. That police officers may have the same powers, which investigators 
and examiners appointed by the Registrar of Motor Vehicles have, to arrest 
persons operating motor vehicles while under the influence of intoxicating 
liquor. As the law now is, a police officer cannot arrest a person upon such 
charge without a warrant, if the person has his license to operate in his 
possession, unless such person is drunk or is a suspicious person, in which 
event he may be arrested on the respective charges. 

The power of officers to make arrests without warrant for violations of 
laws relating to motor vehicles is found in G. L., c. 90, as amended by St. 
1921, c. 349, which provides for the arrest of "any person operating a 
motor vehicle on any way who does not have in his possession a license to 
operate motor vehicles granted to him by the registrar, and who violates 
any statute, by-law, ordinance or regulation relating to the operation or 
control of motor vehicles; ..." The power of investigators or examiners 
appointed by the registrar to make arrest without warrant is also defined 
therein, namely, to make arrest of "any person operating a motor vehicle 
while under the influence of intoxicating liquors, irrespective of his pos- 
session of such a license." 

G. L., c. 90, § 21, as amended by St. 1921, c. 349, should be so amended 
that the powers of a police officer may specifically include power to make 
arrest of "any person operating a motor vehicle on any way while under 
the influence of intoxicating liquor or drugs," and who "otherwise" vio- 
lates any statute, etc. 



P.D. 12. 11 

II. ADMINISTRATION OF CIVIL BUSINESS. 

Cases of Interest wherein the Attorney General appears for the 
Commonwealth. 

A. CASES DECIDED DURING THE YEAR. 
1. In the Supreme Court of the United States. 

Ex parte Worcester County National Bank, 270 U. S. 347. This case 
involved the construction and the constitutionahty of certain portions of 
the so-called MacFadden bill amending the National Banking Act, au- 
thorizing the direct consolidation of State trust companies with national 
banks under the charter of a national bank involved in the merger. The 
Supreme Judicial Court of Massachusetts (263 Mass. 444) had decided 
that the Federal act purported to authorize the consolidated national 
bank to succeed without any new appointment by the court to the 
executorship trust and other fiduciary positions held by the absorbed 
State trust company under appointments of Massachusetts probate courts, 
and that, if this was the will of Congress, the act was unconstitutional as 
interfering with the reserved power of the State to regulate the admin- 
istration and probate of estates of deceased persons who last dwelt within 
the Commonwealth. 

The case arose upon the petition of the consolidated national bank to 
file an account as executor in an estate in which the absorbed trust com- 
pany had originally been appointed. The case, although involving no 
large amount of money, raised a very important principle of constitutional 
law in which the State had a decided interest from the standpoint of main- 
taining the integrity of its probate courts from interference by the Federal 
government. The Attorney General requested leave of the Supreme Court 
of the United States to file a brief as amicus curiae, which was granted. 
The court, departing from its usual custom, also granted leave to this 
department to present an oral argument. The case was argued by Hon. 
Newton D. Baker for the appellants and by Assistant Attorney General 
Putnam for the Commonwealth. Oral argument was made. The Su- 
preme Court affirmed the decree of the Massachusetts court upon grounds 
which, as is disclosed by the printed record, were first suggested in the 
brief of the Attorney General. 

2. In the Federal Courts. 

Rate Cases. 

The electric light rate cases brought by the Worcester Electric Light 
Company and the Cambridge Electric Light Company, and referred to as 
pending in my report of last year, were ended during the present year by 
entries of decrees in the United States District Court sustaining the con- 
tention of the Commonwealth. The lower rates ordered by the Department 
of Public Utilities thus remain in effect. 



12 P.D. 12. 

3. In the Supreme Judicial Court. 

(a) Tax Cases. 

Beside one tax case ^ in the Supreme Court of the United States, this 
department has represented the Commonwealth in seventeen cases before 
the full bench of the Supreme Judicial Court, involving important points 
in the construction of our corporation and legacy tax acts, and in five cases 
before a single justice. In all but one ^ of the eleven ^ tax cases decided by 
the Supreme Judicial Court of the Commonwealth, the contentions of the 
Commonwealth have been sustained. 

(6) Other Cases. 

In the eleven cases involving constitutionality of statutes,* charitable 
trusts,^ validity of departmental acts,^ the Commonwealth was sustained. 

' Macallen Company v. Commonwealth, 264 Mass. 396; reversed by the Supreme Court of the United 
States, suh nom. Macallen Company v. Massachusetts, 279 U. S. 620. 

2 Henry B. Cabot et als., Executors, v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 
1239, held that a receipt in full given by the Commissioner of Corporations and Taxation prevents the 
Commissioner from later making an additional assessment where the net estate of a Massachusetts decedent 
is increased due to a rebate of a Federal estate tax previously allowed as a deduction by the Commissioner 
in computing the Massachusetts inheritance tax. 

' Hood Rubber Co. v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 1747, sustained 
the construction of G. L., c. 63, § 36, adopted by the Department of Corporations and Taxation since the 
enactment of the statute. 

Anna W. Wolbach v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 1757, sustained 
an income tax upon interest paid to the relatives of a deceased partner by the surviving partners. 

Charles F. Ayer v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 2195, sustained an 
income tax imposed upon dividends received by the taxpayer from a joint stock company organized under 
the laws of Michigan for the purpose of conducting mining operations in that State. 

Edith C. C. Ames v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 2247, sustained 
the action of the Commissioner of Corporations and Taxation in denying a refund of certain taxes paid by 
the taxpayer "on account" of a legacy tax. 

Harold S. Coolidge et al.. Trustees, v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 
1831, is mentioned subsequently in this report. 

Queens Run Refractories Co. v. Commonwealth, Mass. Adv. Sh. (1930), sustained the contention of the 
Tax Department that the complainant company was "doing business" within the meaning of G. L., c. 63, 
§32. 

Essex Theatres Co. v. Commonwealth, Mass. Adv. Sh. (1928) 1967, sustained the minimum excise on 
certain corporations provided in G. L., c. 63, § 32A. 

George A. Bacon v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 747, sustained 
an income tax imposed upon an annuity received by a taxpayer under the provisions of G. L., c. 62, § 5. 

Mary J. Follett v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1929) 917, sustained 
the tax imposed upon a liquidating dividend received by the taxpayer. 

Boston Safe Deposit & Trust Co. v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1029) 
1233, sustained the validity of a Massachusetts succession tax upon a trust created inter vivos without 
the absolute power of revocation; the trust provided for the payment of the income to X during her hfe, 
and upon her death the principal of the trust back to the settlors if living, and if not living over to grand- 
children of the settlors. 

* Commonwealth v. Kresge Co., Mass. Adv. Sh. (1929) 1205, held that St. 1926, c. 321 (regulating sale 
of eyeglasses), was constitutional; and upheld conviction for violation thereof. 

Bauer v. Civil Service Commission, Mass. Adv. Sh. (1929) 2399, upheld constitutionality of G. L., c. 31, 
§ 23 (in the Veteran's Preference Act), and dismissed petition for mandamus to compel the commissioner 
to certify the name of a non-veteran who had received the highest examination mark, but whose name had 
been given by the commissioner an inferior position on the eligible hst. 

' Arthur H. Brooks v. Caroline A. Pierce et als., Mass. Adv. Sh. (1929) 357, sustained the contention of 
the Attorney General that under a particular will a charitable gift to a class of unknown persons took 
precedence over arrears in annuities to beneficiaries named in the will. 

« Selectmen of Topsfield v. Department of Public Utilities, Mass. Adv. Sh. (1929) 945, sustained validity 
of an order granting a right to locate transmission lines across certain public ways. 



P.D, 12. 13 

4, In Other Courts of the Commonwealth. 

(a) Eminent Domain Cases. 

In eminent domain cases, commonly known as "land damage" cases, 
the Commonwealth takes the land of individuals for a public purpose, 
such as the construction of highways and state institutions. An award is 
always made to the owner of the land for his damage sustained by the 
taking. If dissatisfied with the amount of the award, each owner may 
appeal to a jury for assessment of damages. In every case assessment 
necessarily is against the Commonwealth. However, in a great majority, 
satisfactory verdicts were obtained. Many others have been settled upon 
terms mutually agreeable to the petitioners and to the Commonwealth. 

(b') Other Cases. 

In 10 tax cases before the Superior Court, and in numerous hearings in 
connection with legacy tax matters before the Probate Court, the depart- 
ment was successful in upholding the tax or contention, in major measure. 

B. CASES PENDING NOVEMBER 30, 1929. 

1. In the United States Supreme Court. 

(a) Interstate Controversy. 

The State of Connecticut v. the Cofnmonwealth of Massachusetts. For 
the purpose of providing an adequate water supply for the Metropolitan 
District, St. 1926, c. 375, and St. 1927, c. 321, respectively, authorized 
the diversion of a small quantity of water from the Ware and Swift rivers 
which otherwise would flow into the Connecticut River through this 
Commonwealth and thence into Connecticut. 

The State of Connecticut, late in 1927, filed a bill in equity against 
•this Commonwealth in the Supreme Court of the United States seeking 
to enjoin the diversion, alleging that, in the event this enterprise is car- 
ried out, the State of Connecticut and its citizens will suffer serious 
injury due to the diminution of the flow of the Connecticut River in 

Norton v. Attorney General. 

Same v. Secretary of the Commonwealth (decided Dec. 30, 1929, while this report is in press). 

Dismissed petitions to quash Attorney General's certificate of an initiative measure and for mandamus 
to restrain Secretary of the Commonwealth from transmitting such measure to the General Court. 

Brest V. Commissioner of Insurance. 

Nichols V. Same, 

Casassa v. Same (decided Jan. 8, 1930). 

Sustained demurrers of the respondent to each of the bills petitioning review of rates made by the Com- 
missioner of Insurance for compulsory motor vehicle insurance. 

Wallace, Petitioner, Mass. Adv. Sh. (1928) 2071, denied petition for a writ of habeas corpus and sustained 
the executive warrant. 

Delia Dwyer v. Keniston et al. (decided Jan. 1930), dismissed petition for mandamus against the Metro- 
politan District Commission to grant entrance into premises from a boulevard. 



Nine cases, already argued, have not yet been decided. 



14 P.D. 12. 

that State. This department filed an answer in behalf of the Common- 
wealth and the case is now pending in court. 

The Secretary of War approved the Ware River project so far as its 
effect on navigation was concerned on March 14, 1928. Similar approval 
of the Secretary of War was obtained with reference to the diversion 
from the Swift River on May 11, 1929. Subsequent to the action upon 
the Ware River project, the State of Connecticut filed a motion in the 
Supreme Court of the United States seeking to join the Secretary of War 
and the Chief of Engineers as parties defendant in the pending case, and 
to enjoin them from giving approval to the Swift River diversion, and to 
compel them to revoke the action upon the Ware River diversion. A 
brief was filed by this Commonwealth in opposition to that motion, and 
after consideration by the court the motion was denied. 

The State of Connecticut has very recently filed a motion seeking to 
have the answer filed by this Commonwealth dismissed, and also a motion 
to have certain portions of the answer stricken out in the event that the 
entire answer is not dismissed. A brief has been filed by this Common- 
wealth in opposition to those motions, and the motions are now pending 
before the court. Oral argument upon the motions will take place on 
January 20, 1930. 

Upon motion of Massachusetts, the court recently appointed Charles W. 
Bunn, Esq., of Minnesota as Special Master to hear the case and report 
to the court. In the event that the court decides adversely to Connecticut 
upon the pending motions, it is expected that hearings before the master 
will commence shortly thereafter. 

This case is of the utmost importance to this Commonwealth. Upon it 
depends an adequate water supply for the Metropolitan District and an 
undertaking estimated at $65,000,000. The State of Connecticut has left 
no stone unturned to upset this project, and has taken advantage of every 
possible legal avenue of attack. Thus the Commonwealth has successfully 
opposed the only issue which has been decided by the Supreme Court so 
far, and every effort will be made to carry the entire case to a successful 
conclusion. 

Bentley W. Warren, Esq., who was appointed Special Assistant Attorney 
General to conduct the case for the Commonwealth of Massachusetts, is 
being assisted by Assistant Attorneys General Callahan and Cutter. 

(6) Tax Cases. 

In Harold J. Coolidge et al., Trustees, v. Commissioner of Corporations and 
Taxation, decided September 13, 1929, the court affirmed the constitu- 
tionality of a Massachusetts succession tax on the property passing by a 
trust instrument which was executed inter vivos on July 29, 1907, before the 
enactment of the taxing statute, and wherein no power of revocation was 
reserved, and in a later assignment of which, in 1917, no beneficial interest 



P.D. 12. 15 

was retained in the settlors. The decision is important in its stressing of 
the succession aspect of the Massachusetts tax, and the importance of the 
determination of whether or not the succession is dependent in any way 
upon the death of the settlors. 

Federal questions having been raised in the Massachusetts courts, ap- 
peal to the United States Supreme Court is now pending. 

Willcutts, Collector of Internal Revenue, v. Bunn (U. S. Sup. Ct., Oct. 
Term 1929, No. 535). In this case this department has recently moved 
for and obtained leave to file a brief as amicus curiae. The lower Federal 
courts decided that the Federal government could not impose an income 
tax upon the gain derived from the sale of municipal securities issued by 
subdivisions of the State of Minnesota. For many years Massachusetts, by 
the provisions of G. L., c. 62, § 5 (c), has imposed an income tax upon the 
gain derived from the sale of Federal government bonds. A decision in 
the pending United States Supreme Court case will to all intents and pur- 
poses decide the validity of a tax long imposed by Massachusetts. At the 
request of Commissioner Long, therefore, this Department has by its 
brief sought to support the argument to be made by the Solicitor General 
of the United States in behalf of the tax imposed by the Federal govern- 
ment upon the gain from the sale of the Minnesota bonds. 

2. In the Supreme Judicial Court. 
Billboard Cases. 

The billboard litigation is a consolidation of various bills in equity 
brought in the Supreme Judicial Court by the General Outdoor Advertising 
Company, the O. J. Gude Company, Edward C. Donnelly and John Brink 
against the Commissioners of Public Works, with which has been heard 
the bill in equity brought by the General Outdoor Advertising Company 
against the selectmen of the town of Concord. The John Brink case 
involves the Chevrolet sign on Beacon Hill. All the cases involve the 
constitutionality of the 1924 rules and regulations of the Department of 
Public Works for the control and restriction of billboards, signs and other 
advertising devices, under G. L., c. 93, §§ 29-33, as amended, and under 
Amendment L of the Massachusetts Constitution. 

The complainants' case was finished in 1928. During the present year 
the preparation and presentation of evidence, on behalf of the respondents, 
and the rebuttal evidence by the advertising companies consumed almost 
the entire time of Assistant Attorney General Eastham, to whom the case 
had been assigned. In addition to five days spent on a "view" of the 
main highways of the Commonwealth by counsel and the master, there 
were forty-nine court days of hearings and seven days of argument. The 
record in the case contains 8,564 pages of testimony, between five and six 
thousand exhibits, and registers the total number of one hundred and 
sixteen court days. 



16 P.D. 12. 

It is expected that the arguments will be completed before the master, 
Frank H. Stewart, Esq., by December 26, 1929, and his report to the 
Supreme Judicial Court of the Commonwealth ready during the early part 
of 1930. 

III. STATUTORY SERVICES OF INTEREST. 

1. Settlement of Small Claims against the Commonwealth. 

Since the period covered by my last annual report 34 claims have been 
presented against the Commonwealth under St. 1924, c. 395; 20 were 
approved, with a total expenditure of $2,742.52; 11 were rejected; 3 are 
still pending. 

Of these claims 58 per cent was for damages occasioned by the operation 
of State automobiles. 

2. Interstate Rendition. 

There is great need for a uniform method of interstate rendition. The 
essential elements are now covered by the Constitution of the United 
States and Federal statutes enacted thereunder. Except as to certain 
minor details, which are left to the States, the Federal law is supreme and 
binding upon all States equally, and it is, of course, uniform in its applica- 
tion in the entire country. No State may constitutionally enact a statute 
which in any way conflicts with, adds to, or modifies the requirements set 
forth in the Federal law. 

The chief difficulty is lack of thorough understanding of the law by 
oflficials charged with its administration. The governor of a State must, 
under the law, return to a demanding State a fugitive who is found within 
his State provided — 

1. That a set of papers is duly received, authenticated by the governor 
of the demanding State, containing a copy of an indictment or affidavit, 
sworn to before a magistrate, charging the fugitive with having committed 
a crime within the demanding State. 

2. That the governor of a State in which the fugitive is found is satisfied 
that the person is in fact the person so charged with the crime and named 
in the papers. 

3. That the governor of the State, in which the fugitive is found, is satis- 
fied that the person is a fugitive from justice. Under the law a person is a 
fugitive from justice if he was in the demanding State at or about the time 
the crime is alleged to have been committed, and if he is subsequently 
found in the asylum State. 

4. That the request for the return of the fugitive is made in good faith 
on the part of the officials of the demanding State. 

If these elements all appear, a governor, upon whom a request is made, 
must, under the law, return the fugitive; and other considerations, however 
important they may seem to him, must be entirely disregarded. 

In certain cases executives of other States, it would seem, refuse to 
honor the request of the Governor of this Commonwealth for the return 



P.D. 12. 17 

of a prisoner on grounds other than those of law. The law provides no 
method of compelling a governor to comply with his duty in these cases, 
nor is there any appeal in case he refuses to do so. Although his right to 
refuse to honor a requisition is closely limited, nevertheless his power to 
do so is supreme and unlimited. There is nothing that the General Court 
of Massachusetts may do to correct the faulty administration of this 
matter in other States. In this Commonwealth requisitions from other 
States are treated in strict conformity with the law. 

The weakness in the law of rendition, as pointed out above, is that there 
is no method of compeUing a governor to return a fugitive in a proper 
case, and many governors, more or less naturally, confuse their legal right 
to refuse rendition with their power to refuse. In a proper case the gov- 
ernor's duty arises from a clear mandate in the Constitution of the United 
States and in the Federal statutes enacted thereunder. The duty is none 
the less mandatory even though no method is provided to compel a gov- 
ernor to perform his duty. Indeed, the obligation in some respects thereby 
becomes greater. 

The rendition of fugitives from justice is an important phase of the 
administration of law in this country and Commonwealth. A full and 
complete understanding of the law by the governors of the States will do 
more than any other thing to place its administration on a basis which 
conforms to the law. 

3. Quo Warranto (at Relation of Insurance Department). 

At the relation of the Commissioner of Insurance, under the provisions 
of G. L., c. 175, § 6, as amended, a petition was filed against the Bristol 
Mutual Liability Insurance Company which the Commissioner believed 
to be insolvent. The matter was heard by the Supreme Judicial Court 
and a permanent injunction restraining the company from doing business 
was almost immediately issued, and a receiver was appointed by the court 
to settle its affairs and to protect the interests of policyholders and 
creditors. 

4. Charitable Trusts. 

The duties of the Attorney General to "enforce the due application of 
funds given or appropriated to public charities within the commonwealth" 
and to prevent "breaches of trust in administration thereof" (G. L., c. 12, 
§ 9) both entail, first, supervision of the administration of funds by func- 
tioning charities, and second, recommendation to the courts for use of 
trust funds, non-functioning because original purposes have become 
impracticable or impossible of execution. 

The first involves on the part of the Attorney General approval of all 
trustees' accounts of all charitable trusts (such approval is now made 
prerequisite by the judges of the several probate courts for allowance of 
such accounts), and investigation and approval of successors to trustees 



18 P.D. 12. 

resigned or deceased. Current experience, noting misappropriation of trust 
property, suggests that probate courts require all trustees of charitable 
funds, or at least the treasurer of each board of trustees, to provide bond 
for the faithful performance of duties, and that sole charge and custody 
of the funds be not delegated to any one member of a board. 

As to the second, there have been many cy pres proceedings. I mention 
two or three of interest. 

Charles A. Reade Fund. 

Experience of a long period of years in effort to carry out literally the 
desires of the donor for scientific lectures demonstrated such insufficient 
interest and consequent impracticable use of the fund that, through pro- 
ceedings initiated by the Attorney General, supported by the officials of 
the city of Salem, a decree was entered by the Superior Court of the County 
of Essex allowing the income of this fund for free musical concerts, with 
scientific features, for the inhabitants of the city of Salem. Radio broad- 
cast of the first concert enabled other citizens of Massachusetts to share 
the benefits of this gift. 

Massachusetts Total Abstinence Society. 

Proceedings have been commenced for appHcation of the funds of this 
society, a charitable corporation, idle through death of interested leaders 
and other incidents. 

National Sailors' Home. 

The trustees of this home, a charitable corporation, which for sixty years 
has maintained a home in Quincy for former members of the United States 
Navy, sought permission of the Supreme Judicial Court to discontinue 
maintenance of any home and to utilize the funds at their disposal in other 
modes. The allowance of this petition was opposed by the Attorney 
General in the belief that the need for such an institution in our Common- 
wealth had not ceased. Continuance of this home for our sailors, provision 
for more suitable facilities, and readjustment of the personnel of the board, 
with added representation for naval veterans, are the present endeavors 
of the Attorney General. 

5. Estates under Public Administration. 

As estates wherein there are no heirs are payable to the Treasurer of 
the Commonwealth (G. L., c. 190, § 3, cl. 17), the State is a party in 
interest, occasioning supervision by the Attorney General over public 
administrators in investigation and approval of their accounts and 
appearance in courts in determination of genuineness of alleged heirship 
of those claiming estates. 



P.D. 12. 19 

In a current case, through the action of this department, a claimant 
to an estate was found guilty of perjury in the jurisdiction in which he 
dwelt, with subsequent sentence of imprisonment. 

6. Proceedings to enforce the Regulations of the Department of Public 

Safety. 

G. L., c. 148, § 26, requires the Attorney General to enforce regulations 
of the Department of Public Safety relative to blasting with explosives. 

Consequent to certain regulations of the Department of Public Safety, 
proceeding is now pending in the Superior Court for the County of Essex 
for prevention of certain blasting operations alleged to be to the detri- 
ment of the inhabitants of the town of Swampscott. 

7. Service to Special Recess Commissions: Special Reports. 

Assistant Attorney General Cutter assisted the Special Recess Tax 
Commission in the legal work connected with its duties, and devoted 
much of several months to this work. 

At my designation. Assistant Attorney General Callahan served as a 
member of the Special Recess Commission to study Laws relating to 
Plumbing (Res. 1929, c. 16) and of the Commission to survey and revise 
the Game and Inland Fish Laws (Res. 1929, c. 34). 

The investigations, requested by the General Court, as to certain claims 
(Res. 1929, c. 46) and as to removal, repair and maintenance of bridges 
over certain locations of the Southern New England Railroad Corpora- 
tion and former location of the Hampden Railroad Corporation (Res. 
1929, c. 42) were conducted by Assistant Attorney General Simoneau, 
designated by me as authorized in the resolves. " • 

8. Industrial Accident Cases; Proceedings against the Commonwealth 
under the Provisions of G. L., c. 30; Approval of Contracts and 
Titles. 

The department represented the Commonwealth at 18 hearings before 
the Industrial Accident Board and at 6 conferences in cases arising under 
the Workmen's Compensation Act (G. L., c. 152), providing for com- 
pensation to laborers, workmen and mechanics employed by the Com- 
monwealth, who receive personal injuries arising out of and in the course 
of their employment. 

The department also prepared or passed upon 475 contracts as to 
form; 29 leases, 5 easements; and 185 deeds as to both legal form and 
title. 

Under G. L., c. 30 § 39, as amended, relating to certain liens against 
security for the construction of public works, 10 cases have been concluded 
and 12 are still pending. 



20 P.D. 12. 

9. Corrupt Practices. 

Either at the relation of the Secretary of State, for non-observance of 
law in the filing with him of returns relative to elections, or upon rep- 
resentation of other parties claiming such violations, the activities of 
certain persons and organizations with reference to corrupt practices in 
elections, other than in cities or towns, were investigated. One investi- 
gation, after prosecution, resulted in the imposition of a penalty of $1,000 
on a certain company for expenditure of moneys contrary to the law, and 
a less penalty on a defendant treasurer of an organization, working in 
conjunction with that company, for causing an incorrect return to be 
filed. 

10. Opinions. 

Opinions of interest are annexed. 

IV. CERTAIN CONSTITUTIONAL FUNCTIONS REQUIRED OF THE 
ATTORNEY GENERAL IN PERSON. 

Initiative Measures. 

The time for filing initiative measures with the Secretary of State 
begins on the first Wednesday of a September and ends with the first 
Wednesday of a following December. Before a measure may be so filed 
it must first be presented to the Attorney General and be certified by 
him as in proper form, as not containing anything excluded from initia- 
tives by the Constitution and correct in certain other respects. Upon 
presentation to him, petitioners may require him to act, — either to 
certify or to refuse to certify, — or, with his permission, withdraw the 
measure. Upon a certification, parties opposed to a measure may bring 
proceedings in an attempt to quash the Attorney General's certificate 
and to prevent the Secretary of State from printing blanks for additional 
signatures. Upon a refusal to certify, if petitioners feel refusal is arbi- 
trary and that the proposed measure is in fact within the Constitution, 
they have equal right to bring proceedings to force him to certify. As the 
date for filing measures with the Secretary of State begins the first 
Wednesday of a September, it behooves petitioners, if they expect benefit 
of the full period of the succeeding ninety days allotted in the Constitu- 
tion for the obtaining of signatures, to present proposed initiatives before 
and not after the day when the ninety days have begun to run. Sub- 
jected, as he may be, to review by the Supreme Judicial Court for any 
errors in certification, the responsibility of the Attorney General is too 
great for hurried consideration of measures, frequently covering many 
typewritten pages. 

There were seventeen initiatives presented this year relating to five 
different subjects: one to strike out G. L., c. 138, § 2A (the so-called 
"Baby Volstead"); one to prohibit certain steel traps; six to set up a 



P.D. 12. 21 

State fund for automobile insurance; three to add to the Public Bequest 
Fund; and six to set up a workmen's compensation fund. 

Of the seventeen measures presented, four were certified; four were 
withdrawn [three by Mr. Frank A. Goodwin and others to establish a 
fund for automobile compulsory insurance and one by the American 
Federation of Labor (Massachusetts branch) to establish a workmen's 
compensation fund]. The Attorney General refused to certify the other 
nine, and assigned reasons therefor. 

Measures Certified. 

1. The initiative containing the following measure: "Chapter 138 of 
the General Laws is hereby amended by striking out section 2A, inserted 
by chapter 370 of the Acts of 1923," certified September 4. Section 2A 
forbids — unless in each instance with permit or other authority required 
therefor by the laws of the United States and the regulations made 
thereunder — the (1) manufacture; (2) transportation by (a) air craft, 
(h) water craft or (c) vehicle; (3) importation or (4) exportation of spir- 
ituous or intoxicating liquor, namely, (1) beverages containing more than 
2^ per cent of alcohol by weight at 60° Fahrenheit; (2) distilled spirits; 
and (3) certain non-intoxicating beverages, namely, those containing not 
less than 3^ and not more than 2% per cent of alcohol by weight at 60° 
Fahrenheit. 

2. The initiative, presented September 16 and certified September 24, 
contained a measure to amend G. L., c. 131, by inserting a new section 
numbered 59 A, which related to the use of traps for capture of certain 
fur-bearing animals. 

3. The fourth petition of Mr. Goodwin and others, presented October 
28 and certified November 1. Three preceding petitions, presented by 
the same petitioner and others, were withdrawn. The first petition was 
presented September 23 and withdrawn October 2; the next, presented 
October 7, was withdrawn October 16, and the third, October 23. 

4. The fourth petition of the American Federation of Labor, "An Act to 
establish a fund for workmen's compensation," presented November 27 
and certified November 29. Of its three prior petitions, the Attorney 
General refused to certify the first on September 5; on the second, pre- 
sented more than seven weeks later (October 29), petitioners requested at 
a hearing on November 1 no action be taken; the third, presented two 
weeks later (November 19), the Attorney General refused to certify on 
November 21, and assigned reasons. 

Uncertified Measures. 
Two petitions (purporting to contain measures to create a State fund 
under the administration of a commission for the compulsory insurance 
of motor vehicles registered in the Commonwealth) ; the first (presented 



22 P.D. 12. 

September 19) was refused September 25; the second (presented October 
29), refused October 31; with reasons assigned therefor. 

Three (purporting to contain measures to provide "that certain money- 
escheating to the Commonwealth shall be added to the so-called Public 
Bequest Fund"); the first (presented July 31) was refused September 9; 
the second (presented October 17) was refused October 18; the third (pre- 
sented October 29) was refused October 30; with reasons assigned therefor. 

Two (purporting to establish a workmen's compensation fund) by 
petitioners other than the American Federation of Labor were refused, 
with reasons. 

Descriptions of the measures certified were furnished to the Secretary 
of State by the Attorney General after petitioners had filed them with 
the Secretary, for, as pointed out in Brooks v. Secretary of State, 257 Mass. 
91, a description is "not made until after" a petition is filed. 

Petitions for mandamus against the Secretary of State and for certio- 
rari to quash the certificate of the Attorney General were brought Novem- 
ber 3 to prevent the transmission to the Legislature of the certified initi- 
ative measure (the fourth petition of Mr. Goodwin) for the establishment 
of a State fund for automobile insurance. ^ 

V. GENERAL OBSERVATIONS. 
1. Power of Attorney General relative to Investigations. 

In my last report I pointed out that the Attorney General has no 
power in any independent inquiry to summon witnesses and examine 
them under oath for the ascertainment of facts to effect thorough in- 
vestigation of matters, civil as well as criminal, concerning the public 
peace, public safety and public welfare, with responsibility for which he 
is popularly charged. I renew recommendation for grant of such power, 
if such investigations are desired. 

2. Recording Automobile Conditional Sales to avoid Futile Litigation. 

I renew my suggestion that conditional sales of motor vehicles be 
recorded with the Registrar of Motor Vehicles. I believe that litigation 
resulting from disputes with reference to ownership, sales, attachments 
and liens, by resort to a central office, can be minimized. 

3. Continuation of Commission Studying Proceedings relative to Chil- 

dren and Domestic Relations. 

In my last report I recommended the appointment of a commission 
to make a thorough study of these matters. Such a commission was 
appointed. The work has proved too extensive for a final report. I 
recommend that it be continued. 

■ The Supreme Judicial Court sustained the action of the Attorney General as this report goes to press. 



P D. 12. 23 

4. Continued Study of General Tax Revision. 

The Special Recess Commission on Taxation has prepared an exhaustive 
report dealing mainly with the major problems now arising in connection 
with State taxation. With the general policies of taxation this depart- 
ment has nothing to do, but its work is much affected by provisions in 
the structure of the statute law concerning taxation, voluminous, inter- 
related and intricate. Comprehensive revision demands long and careful 
study. I favor its continuance. 

5. For a New Board of Tax Appeals. 

One portion of the very comprehensive report of the 1929 Special Recess 
Tax Commission has a very definite relation to the work of the Attorney 
General as representing the Commissioner of Corporations and Taxation 
in litigated matters of taxation. The commission proposes the estab- 
lishment of a board of tax appeals, consisting of three members appointed 
by the Governor with the consent of the Council, solely on the basis of 
their qualification to perform their duties. At present, appeals from the 
decisions of the Commissioner of Corporations and Taxation are heard 
either by one of the many courts of the Commonwealth (depending upon 
the nature of the tax) or by the board of appeals from decisions of the 
Commissioner of Corporations and Taxation. That board consists of 
three State officers, who have many other heavy administrative duties 
to perform for the Commonwealth. A board of tax appeals should be 
an impartial body ; there should be no possibility that any citizen seeking 
a tax abatement could have any feeling that the board is biased in favor 
of the Commonwealth. With State officials, having other duties to per- 
form for the Commonwealth, acting as members, this possibility is not 
wholly absent, although an examination of the statistics of cases decided 
by the present board shows that the board has granted abatements about 
as frequently as it has denied them. 

The tax laws of Massachusetts are growing in volume and in complexity. 
This is probably the inevitable result of the complicated structure of 
modern business and of the economic life of the community. Problems 
of taxation are now dealt with principally by specialists, and a board of 
tax appeals should be composed not only of persons who are tax specialists 
but of members who have a very thorough business and legal training. 
There is absolutely no certainty that any one of the three gentlemen who 
serves upon the present board ex officio will be a lawyer, and even less 
certainty that he will have a specialized knowledge of the Massachusetts 
tax statutes. I hope this proposal will receive favorable consideration. 



24 P.D. 12 

6. Just Provisions to relieve Motor Vehicle Owners by Amendment to 
the New Motor Vehicle Excise Tax Law. 

The administration of the new motor vehicle excise (G. L., c. 60A), 
which supplants the old local personal property tax upon motor vehicles, 
has resulted in much recourse to this department, particularly with 
respect to those provisions relating to persons who transfer motor vehicles 
during the calendar year. 

This law should be amended — 

(1) To make it certain that the year of actual manufacture or assem- 
bling of the motor vehicle is taken as the year upon which the value of 
the privilege taxes is measured. 

(2) To provide a fair abatement of the tax paid early in the year by 
one who transfers or turns in his car during the year. 

At my direction, such suggestions were presented to the Special Recess 
Tax Commission, and I hope such remedial amendments will be favored. 

In passing, I must commend Mr. Henry F. Long, Commissioner of 
Corporations and Taxation, who, by a very liberal and sensible con- 
struction of the provisions of G. L., c. 60A, in his departmental regula- 
tions, averted litigation which otherwise would have arisen under this 
statute. 

7. Readjustment in State Taxation of National Banks. 

The 6-3 decision of the Supreme Court of the United States in the Mac- 
alien case (supra), in which this office represented the Commonwealth, 
was a blow to the method now in force in Massachusetts of taxing na- 
tional banks, as well as in the States of California, Oregon and New York. 
The case itself did not involve a national bank, but dealt with the taxa- 
tion of a domestic business corporation, part of the excise upon which 
was measured in much the way that the excise upon national banks is 
measured. The court held that the excise was invalid to the extent that 
it was measured by the net income derived from tax-exempt Federal and 
State obligations. 

By a parity of reasoning, the excise levied upon national banks would 
likewise be held invalid. Inasmuch as a very large proportion of the 
gross income of national banks is derived from tax-exempt bonds, the 
loss to the State tax revenue will be materially greater. The situation 
will be in part obviated if the Legislature adopts the recommendations 
for the taxation of corporations and banks about to be presented to the 
General Court by the Special Recess Tax Commission. 

Any substantial increase in the amount of revenue obtained by the 
States from the taxation of national banks can come only through an 
amendment of the act of Congress under the authority of which the 
States are permitted to impose excises upon national banks. (U. S. Rev. 
Stat. § 5219.) 



P.D. 12. 25 

It is generally conceded by authorities on constitutional law, and by 
tax lawyers who have studied the question, that the solution of the 
national bank tax problem by legislation, adopted by Massachusetts in 
1925 and by California, New York and Oregon at a later date, is definitely 
overturned by the Macallen case. The States must give up any thought of 
increasing the amount of revenue received from national banks through 
the inclusion of interest from tax-exempt bonds within the gross income 
of the banks upon which the net income measure of the excise is computed. 
Those who are studying the question are directing their efforts towards 
obtaining a new solution of the problem. 

It is hoped that some arrangement, agreed to both by the banks and by 
the interested States, may be reached for a bill to be presented to Congress 
which has the approval of all parties to the controversy. In the mean- 
time, and in the event such amendments are presented, the members of 
Congress from this Commonwealth should be apprised of the exigency 
confronting this State and the attitude of the legislative bodies with 
respect thereto solemnly expressed. 

8. Vigilance in Safeguarding State Probate Practice and State Banks 
from Federal Encroachment. 

The decision of the Supreme Court of the United States in the case of 
Ex parte Worcester County National Bank, elsewhere referred to in this 
report, raises an interesting question of the relation between the powers 
of the Federal government to forward the interests of its fiscal agencies, 
the national banks, and the powers of the States with respect to the 
administration of estates in their probate courts. 

It seems altogether likely that, in these days of governmental encourage- 
ment of bank consolidations, particularly at a time when the Federal 
government is doing all that lies within its power to encourage consolida- 
tions under national bank charters, further attempts will be made by 
Congress to give trust powers to national banks which will tend to infringe 
upon the power of the probate courts of the Commonwealth to control 
in every detail the administration, of decedents' estates. 

If Congress further relieves national banks, doing trust business, from 
the control of State probate courts with respect to such trust business, 
it will result not only in an interference with the proper operation of the 
probate courts, but will tend to give to national banks a distinct advantage 
in competition with State banks and trust companies doing a similar trust 
business. 

How far Congress has constitutional power to relieve national banks, 
acting as trustees under State court appointments, from State court 
regulation is still perhaps an open question. The Worcester County 
Natio7ial Bank case (279 U. S. 379) leaves the point undecided. It would 
seem, however, that the eagerness on the part of national banking author- 



26 P.D. 12. 

ities that consolidations take place without complicated transfers should 
not be allowed to outweigh the important principle, laid down in this 
Commonwealth from the earliest times, that the estates of deceased 
persons within this Commonwealth are to be administered under the 
most rigid court supervision, so that the interests of widows and orphans 
in the estates of their relatives may be fully protected from careless, 
negligent, or dishonest administration. Consolidations unquestionably 
must take place. Banks should be free to consolidate under national 
charters under easy and simple provisions of statute law. It is perfectly 
possible, however, to permit them to do this and at the same time leave 
to the probate courts fully as complete control of the estates in which 
banks that are parties to a consolidation are acting in fiduciary capacities 
as the court has over any other estate. 

I suggest, therefore, that every new legislative proposal introduced 
into Congress be carefully inspected to make sure that the powers of the 
State over its probate courts are not interfered with in any embarrassing 



9. Greater Recourse by the Courts to Commitments for Treatment of 

Drug Addicts than Use of Imposition of Penalties. 

The disposition of drug addicts has, indeed, as much a medical aspect 
as a criminal one. Sentence and fine do not correct offenders; witness, 
invariable repetition. I advocate use by the courts of provisions en- 
acted in 1909 (c. 504) for commitment for treatment rather than first 
use of sentence and fine. 

10. Greater Recourse by the Courts to Psychiatric Information in Civil 

as well as Criminal Proceedings afforded by Present Provisions 
of Law. 

G. L., c. 123, § 99, authorizes any court to request the Department of 
Mental Diseases to assign a member of a State hospital medical staff to 
make a mental examination "of any person coming before any court." 
No fee is chargeable under this section. Although, under this provision, 
service may be rendered not only to the criminal but to the probate and 
civil courts, only 2.3 cases were referred to the Department of Mental 
Diseases in 1929. Its purpose was to enable courts to determine the 
mental condition of persons coming before them. Recourse to such 
service, available and free, would give added assurance against penal 
commitment of persons suffering from mental disease or defect, as well 
as added assurance of treatment for the mental trouble which caused 
the commission of the offense rather than imprisonment for a stated 
period of time, effecting no cure. Provision for psychiatrists, designated 
to serve the courts in defined districts, is worthy of consideration. 



P.D. 12. 27 

11. Provision assuring Availability to the Court, before Trial or Dis- 

position of Capital Cases and Second Offenses, of Psychiatric 
Information now by Law required to be filed in Court by the De- 
partment of Mental Diseases. 
Whenever a person is indicted by a grand jury for a capital offense, or 
for any offense more than once, or has been previously convicted of felony 
(G. L., c. 123, § lOOA; St. 1921, c. 415), notice is given to the Depart- 
ment of Mental Diseases, which, after examination, — had to determine 
mental condition or defect affecting criminal responsibility, — files a report 
with the clerk of the trial court. There is no requirement as to time for 
making such examination, or for filing such report, or for contingency of 
trial and disposition upon such report. About 213^ per cent of the total 
number of persons examined under these provisions since 1921 was found 
to have mental conditions affecting criminal responsibility. If eight years 
of psychiatric examination has shown that penal restraints could not 
affect the reform or correction of one-fifth of capital and second offenders, 
future dispositions should be aided by a positive requirement that such 
examinations should be made and report thereon be available to the court 
at the earliest possible moment. 

12. Consideration of Measures enabling Property Damage Insurance, 

to obviate Claims therefor under the Guise of Claims for Personal 
Injuries, and providing Protection for Injured Persons in Cases of 
Insolvency of Insurers of Persons Liable to Such Injured Persons. 

Irrespective of the extent to which claims for personal injuries are made 
as a result of automobile collisions, where no actual personal injuries have 
been suffered and the claims are put forward merely for the purpose of 
recovering from an insurance company an amount sufficient to cover the 
property damage sustained by the claimant's automobile, many such false 
claims would be obviated by requiring the statutory form of compulsory 
automobile liability policy to cover property damage as well as personal 
injury. In so far as this may be accomplished and rates fixed upon an 
accurate basis, I suggest its consideration. 

The insolvency or bankruptcy of insurance companies carrying com- 
pulsory automobile insurance leaves the very persons, who by the statute 
were intended to be adequately protected, without protection. I favor 
legislation designed to afford protection to such persons, whereby there 
may be solvent resources from which they may be indemnified when 
injured by automobiles. 

13. Regulation of "Overnight" Camps. 
I renew my recommendation of last year for general legislation regu- 
lating "overnight" camps in registration of guests for identification 
purposes. 



28 P.D. 12. 

14. Literary and Dramatic Censorship. 

Last year I called attention to the general unrest within the Common- 
wealth over the method of censoring literary and dramatic productions, 
and suggested that a special recess commission, with representation from 
all groups interested in the subject, be appointed to investigate the whole 
situation. In view of the fact that the unrest to which I referred last year 
has not in any way diminished, but on the contrary has considerably 
increased, I i-enew this recommendation. 

The principal change in the law sought by those advocating a modifi- 
cation of the so-called censorship provisions of the General Laws deals 
with G. L., c. 272, § 28, which reads in part: 

Whoever imports, prints, publishes, sells or distributes a book, pamphlet, 
ballad, printed paper or other thing containing obscene, indecent or impure 
language, . . . shall be punished . . . 

A bill has been proposed which recommends that the word "contain- 
ing" be changed to "which considered as a whole is." 

The idea of any amendment of G. L., c. 272, § 28, is to make sure that 
books, for the sale of which persons shall become subject to trial on crim- 
inal charges, should be judged not by any isolated passage, as under the 
present law, but by the effect and tendency of the book as a whole to 
corrupt the morals of the community. I believe that some such change 
in the statute should be enacted. The precise wording of any amendment 
is purely a legislative problem. I believe that a book which is really 
objectionable would be as effectively banned under the proposed amend- 
ment, as under the present law. 

Anything which savors of censorship calls for a rather nice adjustment 
between the desire to have complete freedom of the press, in accordance 
with our constitutional traditions, and the desire to protect the morals of 
youth from contaminating influences. Probably no statute will ever be 
framed which will by its own terms establish a hard and fast definition of 
obscenity applicable to all possible cases which may come before the 
courts. 

All that such a statute can lay down is a standard of reasonable con- 
duct. An alleged violation of such standard will be determined in view 
of all the circumstances surrounding any particular case. My thought is 
that a solution of this perplexing problem, affecting, as it does, literature 
and art, publishers, booksellers, the press, the theatre, the public library, 
science and medicine, the church and the public, can be appropriately 
reached only by a most careful study of the situation, undertaken in an 
intelligent spirit of co-operation and forbearance. 



P.D. 12. 29 

15. Suggestion that "False Swearing" be a Misdemeanor obviating 
Necessity of Proof of Materiality of Testimony Necessary in Prose- 
cution for Perjury. 
G. L., c. 268, § 1, defines perjury. Materiality of the testimony is an 
essential element of the crime. It must be proved. Prevarication in 
testimony in trials is not easily met by this provision for prosecution of 
perjury. Whether or not the testimony be material to the issue, it should 
be the truth. I suggest consideration of enactment of a law that ''a 
person who in a proceeding in the course of justice, wherein he is lawfully 
required to depose the truth, wilfully and knowingly testifies or certifies 
falsely in regard to any matter or states in his testimony any matter 
to be true which he knows to be false, shall be guilty of a misdemeanor, 
namely, false swearing." 

16. Enabling Measures for Local Police Forces. 

In the enforcement of law, dependent upon many agencies as they relate 
to its many aspects, namely, detection, apprehension, prosecution, correc- 
tion and prevention of crime, local police are the ''first line." 

Criticism should not be hasty until an urban community has itself first 
made provision for its competent discharge in meeting increasing exactions 
of the day. Voluntary efforts for self improvement and the merit of local 
police service call for encouragement, either by legislation or by provision 
in municipalities, as may be best designed to effect it; for instruction, 
with tests in all phases of modern-day, active police work, either by at- 
tendance at a school or by a local or district instructor; for a numerical 
force sufficient to protect a community properly, considering population, 
territory and incidents; for standardization of pay; for uniformity in 
providing personal equipment; for quarters, respectable and dignified; 
and for installation of latest devices for intrastate and interstate contacts. 

17. New Court House. 

I add my solicitation for construction of a new Court House in Boston, 
a vital and necessary factor for furtherance of the general administration 
of justice. 

18. Greater Protection of Poultry Owners against Thieves. 

The penalty for breaking and entering, with intent to commit larceny, 
or for entering without breaking any building or enclosure kept for poultry 
is a fine of not more than $500 or imprisonment in the house of correction 
for not more than two years. (G. L., c. 266, § 22.) I advocate the naming 
of a specific minimum penalty, and suggest consideration of measures 
regulating by license those dealing with poultry owners, and the trans- 
portation of poultry over highways between sunset and sunrise. The 



30 P.D. 12. 

heavy losses, estimated at $40,000, this year, emphasize the urgency of 
consideration of measures for greater protection of poultry owners from 
thieves. 

19. For the Protection of the Commonwealth against Liability for In- 

juries or Damages in Construction of Ways, not State Highways, 

authorized by Special Acts. 
G. L., c. 81, § 18, provides that the Commonwealth shall not be liable for 
injuries sustained by travelers caused by State highway defects "during 
the construction, reconstruction or repair of a state highway." Occa- 
sionally, special acts authorize the Department of Public Works to con- 
struct ways not laid out as State highways. To remove all question of 
liability of the Commonwealth for injury or damages during such con- 
struction, either the special acts should in each case be so worded that the 
general provision remains clearly applicable to the particular way, or a 
new section in G. L., c. 81, be enacted, to the effect that the Common- 
wealth shall not be liable for any injury or damages sustained during the 
construction, reconstruction or repair of any way for the construction, 
improvement or repair of which money has been appropriated by the 
General Court. 

20. To minimize Litigation arising out of Petitions for Access, for 
Commercial Uses, to Premises abutting Metropolitan Boulevards. 

The Metropolitan Parks System was intended to combine the features 
of health, recreation and beauty with opportunities for safe and un- 
impeded use by the traveling public not inconsistent therewith. 

Demands for the development of property abutting the boulevards for 
business uses effecting consequences which the Commission deemed in- 
consistent with the design of the system, have resulted and will result in 
much controversy and litigation for direct access to the boulevards, even 
in cases of access already existing from the same properties to the same 
boulevards, on side streets. 

If the same powers to regulate the use of abutting property, as are en- 
joyed by local municipal authorities, were vested in the Commission, 
recourse to adjudication by the courts would be minimized, and I suggest 
its consideration. 

21. Supervision of Foreign Charitable Corporations. 

To engage in charity, all one has to do is to start collecting. Any 
individual, or group of individuals, or society, or unincorporated organi- 
zation may collect for or conduct a charity without any regulation by 
law. Any seven or more, if a majority be inhabitants of this Common- 
wealth, may petition to become a charitable corporation, under G. L., 
c. 180, § 1. If so incorporated and the personal property of the corpora- 



P.D. 12. 31 

tion is such as that recited in the statute (G. L., c. 180, § 12), whereby 
it is exempt from taxation, written report to the Department of Public 
Welfare is required, showing purpose, receipts and expenditures, whole 
and average number of beneficiaries, and such other information as the 
department may require. This is the State's sole provision for statutory 
control over persons conducting charities. If incorporated as a "church," 
even this provision does not apply. An organization, incorporated vmder 
the laws of another State, may engage in charity work in this Common- 
wealth without any regulation or supervision whatever. 

Inquiries by this department into certain "charities" disclosed that 
their "workers" or collectors received half the alms and the "cause" 
whatever remained after the cost of "support" of the '"organization." 
How common this practice may be I do not know. I hesitate to recom- 
mend enactment of laws encroaching upon personal freedom to engage in 
the relief of humanity, and thus impose upon worthy charities regulations 
designed to correct its abuse by unscrupulous persons who themselves 
appear to be the principal recipients of "relief." However, there is no 
reason why foreign charitable corporations should not be subject to the 
same laws as our own, and I recommend legislation effecting this. 

22. Determination of Policy as to v/hether Certain Expenses incurred 

in Extradition Proceedings shall be borne by the Commonwealth 
or by the Particular County in Behalf of which a District Attorney 
applies to the Governor that he demand the Executive Authority 
of Another State to return Fugitive. 

Traveling expenses of district attorneys and their assistants, except in 
Suffolk County, are payable by the Commonwealth. (G. L., c. 12, § 23.) 
Expenses of any agent appointed, after application for the arrest of a 
fugitive is complied with, are payable by the county where the proceed- 
ings are pending, or in whole or in part by the Commonwealth, as the 
Governor may direct. (G. L., c. 276, § 15.) Frequently an assistant 
attorney general furthers the demand of the Governor in proceedings in 
other States, both in hearings before Executive authorities and before 
courts. Though such service is rendered in presentation of the Gover- 
nor's demand, yet in fact it is performed for the county for which demand 
was made. It should be determined by the General Court whether 
expenses so incurred are hereafter to be paj^able by the county or by the 
Commonwealth. 

23. Publication of Another Volume of the Opinions of the Attorneys 

General. 

In my judgment, there is sufficient public interest to warrant the 
publication of Volume VIII of the Opinions of the Attorneys General. 

I recommend appropriation of a sufficient sum of money for this 
purpose. 



32 P.D. 12. 

24. Uniform Laws. 

I favor earnest consideration of all measures proposed by the Commis- 
sion for Uniform State Laws, especially those with regard to crime and 
extradition. 

CONCLUSION. 

The foregoing record notes but a few of the varied and comprehensive 
services of this department, too numerous even to list, which statutes 
yearly supplement. And as to such services, only those particular matters 
are mentioned as are thought informative. 

To the zeal, assiduity and ability of the Assistant Attorneys General, 
individually and collectively, and to the competency and fidelity of all 
the members of the office staff, the Attorney General acknowledges the 
accomplishments of the administration of the department. 

Respectfully submitted, 

JOSEPH E. WARNER, 

Attorney General. 



P.D. 12. 33 

DETAILS. 

1. Disposition of indictments pending Nov. 30, 1928: 

Northern District (in charge of District Attorney Robert T. 

Bushnell). 

Frederick Hinman Knowlton, Jr. 

Indicted in Middlesex County, April, 1928, for murder of Marguerite Isabelle 
Stewart, at Concord, on March 30, 1928; arraif^ned April 11, 1928, and 
pleaded not guilty; trial June, 1928; verdict of guilty of murder in the first 
degree; motions for new trial denied and exceptions overruled; sentence 
thereupon; carried out May 14, 1929. 

Eastern District (Essex County cases: in charge of District 
Attorney WiUiam G. Clark). 

George Metaxatos. 

Indicted September, 1927, for murder of Hassen Abrams, at Peabody, on Feb. 
17, 1927; arraigned Oct. 4, 1927, and pleaded not guilty; trial February, 
1928; verdict of guilty of murder in the second degree; motiojj for new trial 
filed and allowed Feb. 28, 1928; nolle prosequi Dec. 3, 1928. 

George Elmer Harrison Taylor, alias. 

Indicted September, 1927, for the murder of Stella Pomkala, at SaUsbury, on 
June 5, 1927; arraigned Oct. 4, 1927, and pleaded not guilty; trial October, 
1927; verdict of guilty of murder in the first degree; motions for new trial, 
claim of appeal and assignments of error denied; sentenced on Jan. 25, 1929; 
carried out March 6, 1929. 

Suffolk District (Suffolk County cases: in charge of District 
Attorney William J. Foley). 

Mary E. Fitzgibbons. 

Indicted May, 1928, for the murder of Eleazar G. Saunders on April 21, 1928; 
arraigned Dec. 4, 1928, and pleaded not guilty; trial February, 1929; verdict 
of not guilty by reason of insanity; committed to the Boston State Hospital 
for Ufe. 

Harry Lamb and Ung Hong Yen, alias. 

Indicted November, 1928, for the murder of Ley Wey Kin on Oct. 16, 1928; 
arraigned Jan. 7, 1929, and pleaded not guilty; trial February, 1929; verdict 
of not guilty as to each defendant. 

Antonio Selvitella. 

Indicted June, 1928, for the murder of Santa Zona on April 20, 1928; arraigned 
Feb. 4, 1929, and pleaded not guilty; trial February, 1929, during which he 
retracted former plea and pleaded guilty to murder in the second degree, 
which was accepted; defendant thereupon sentenced to State Prison for life. 



34 P.D. 12. 

Charles Trippi, alias. 

Indicted November, 1928, for the murder of Frederick Pfluger on Nov. 11, 1928; 
arraigned Nov. 15, 1928, and pleaded not guilty; trial January, 1929; verdict 
of guilty of murder in the first degree; defendant's claim of appeal and assign- 
ments of error denied July 1, 1929; sentenced Sept. 13, 1929; Nov. 14, 1929, 
respite of execution of sentence to and including Nov. 29, 1929, granted by 
the Governor and Council; sentence carried out Dec. 3, 1929. 

Middle District (in charge of District Attorney Charles B. Rugg). 
Joseph R. Dogil. 

Indicted in Worcester County, October, 1928, for the murder of Cosimo Milyaro, 
at Clinton, on Dec. 1, 1928; placed on file by order of the court May 28, 1929, 
as defendant then serving sentence of not less than eighteen years nor more 
than twenty-five years for robbery. 

Southern District (in charge of District Attorney William C. 

Crossley). 
Henri LeBrun, alias. 

Indicted in Bristol County, November, 1928, for the murder of Thomas 
Campeau; arraigned Nov. 21, 1928, and pleaded not guilty; retraction of 
former plea, and plea of guilty to manslaughter accepted by the Common- 
wealth Feb. 13, 1929; sentence thereupon to State Prison for not less than 
seven years nor more than ten years. 

2. Indictments found and dispositions since Nov. 30, 1928: 

Northern District (Middlesex County cases: in charge of District 
Attorney Robert T. Bushnell). 

Arthur J. Manning. 

Indicted January, 1929, for the murder of Mary A. Lee, at Somerville, on 
Dec. 23, 1928; arraigned Jan. 11, 1929, and pleaded not guilty; defendant 
retracted former plea and pleaded guilty to simple assault, April 15, 1929; 
plea accepted; sentence thereupon to the house of correction at Cambridge 
for the term of fifteen months. 

John Onashuck. 

Indicted June, 1929, for the murder of Walter Popluski, at Cambridge, on 
May 30, 1929; arraigned June 5, 1929, and pleaded not guilty; defendant 
retracted former plea and pleaded guilty to simple assault, June 12, 1929; 
plea accepted; sentence thereupon to the house of correction at Cambridge 
for the term of one year. 

Thomas J. Panetta. 

Indicted June, 1929, for the murder of Dominick Simonetti, at Cambridge, on 
May 30, 1929; arraigned June 5, 1929, and pleaded not guilty; retracted 
former plea and })leaded guilty to manslaughter, June 19, 1929; plea ac- 
cepted; sentence thereupon to State Prison for a term of not less than twelve 
years and not more than twenty years. 



P.D. 12. 35 

John J. Sheehan. 

Indicted September, 1929, for the murder of Patrick McGagh, at Lowell, oa 
July 22, 1929; arraigned Sept. 5, 1929, and pleaded not guilty; trial Decem- 
ber, 1929, verdict of not guilty by reason of insanity; thereupon committed 
to the Danvers State Hospital for life. 

Suffolk District (in charge of District Attorney Wilham J. Foley). 
George W. Taylor. 

Indicted in Suffolk County, May, 1929, for the murder of James Talbot on 
April 7, 1929; arraigned May 29, 1929, and pleaded not guilty; retracted 
former plea and pleaded guilty to manslaughter, Oct. 15, 1929; plea accepted; 
sentence thereupon to State Prison for not more than ten years and not less 
than seven years. 

Southeastern District (Norfolk County cases: in charge of Dis- 
trict Attorney Winfield M. Wilbar). 

Joseph Bellamo and Jerry Bellamo, alias. 

Indicted April, 1929, for the murder of Peter Terrazzini, at Needham, on Jan. 
29, 1929; Joseph Bellamo arraigned Dec. 13, 1929, and pleaded guilty to 
manslaughter; plea accepted; sentence thereupon to State Prison for a 
term of not less than twelve years and not more than fifteen years; Jerry 
Bellamo discharged by the court at the suggestion of the District Attorney, 
Dec. 13, 1929. 

Octave Robillard. 

Indicted December, 1928, for the murder of Loretta Froment, at Bellingham, 
on Sept. 21, 1928; arraigned April 1, 1929, and pleaded not guilty; retracted 
former plea and pleaded guilty to murder in the second degree, April 25, 1929; 
plea accepted; sentence thereupon to State Prison for life. 

Middle District (Worcester County cases: in charge of District 
Attorney Charles B. Rugg). 
Thomas Cooper. 

Indicted May, 1929, for the murder of Eliza Jane Brown, at Lunenburg, on 
Sept. 4, 1928, and for the murder of WilUam Stuart, at said Lunenburg, on 
Oct. 11, 1928; arraigned Aug, 26, 1929, and pleaded not guilty to both counts; 
retracted former plea and pleaded guilty to manslaughter on both counts, 
Nov. 6, 1929; plea accepted; thereupon sentence on each count to two years 
in the house of correction at Worcester. 

Annie Kondrot, alias. 

Indicted October, 1929, for the murder of Ellen Kondrot and Lillian Japalowski, 
at Worcester, on Sept. 28, 1929; found insane by the court Nov. 5, 1929; 
thereupon committed to the Worcester State Hospital. 



36 PD. 12. 

3. Pending indictments and status: 

Northwestern District (in charge of District Attorney Charles 

Fairhurst). 
Charles Macules, alias. 

Indicted in Hampshire County, February, 1929, for the murder of George 
Chepules, at Amherst, on Dec. 20, 1928; arraigned Feb. 25, 1929, and pleaded 
not guilty; committed to the Bridgewater State Hospital for observation, 
May 1, 1929. 

Eastern District (in charge of District Attorney William G. Clark). 
George Breton. 

Indicted in Essex County, June, 1929, for the murder of Caroline Breton, at 
Methuen, on June 7, 1929; arraigned Jime 17, 1929, and pleaded not guilty; 
committed to the Danvers State Hospital for observation, Oct. 7, 1929. 

Suffolk District (Suffolk County cases: in charge of District 
Attorney William J. Foley). 
Rocco Cassaro, and Carmelo Garufo as accessory before the 
fact. 

Indicted November, 1929, for the murder of Salvatore Alabiso on Oct. 27, 1929; 
not yet arraigned; defendants' motions pending. 

Gangi Cero. 

Indicted June, 1927, for the murder of Joseph Fantasia on June 11, 1927; 
arraigned July 6, 1927, and pleaded not guilty; trial November, 1927; verdict 
of guilty of murder in the first degree; motion for new trial and assignments 
of error, and claim of appeal and assignments of error denied; thereupon 
sentenced to death by electrocution during the week beginning Nov. 4, 1928; 
respites of execution of sentence to Dec. 9, 1928, Jan. 8, 1929, Feb. 7, 1929, 
and April 8, 1929, granted by the Governor and Council; motion for new 
trial on the ground of newly discovered evidence allowed March 22, 1929. 

James F. Doyle. 

Indicted March, 1929, for the murder of Mary F. Doyle on Feb. 11, 1929; 
adjudged insane and committed to the Bridgewater State Hospital. 

Samuel Gallo. 

Indicted January, 1929, for the murder of Joseph Fantasia on June 11, 1927; 
arraigned Jan. 11, 1929, and pleaded not guilty; trial February, 1929; verdict 
of guilty of murder in the first degree; motion for new trial allowed March 22, 
1929. 

Leong Sang, alias, and Ung Hong Yun, alias, as accessory 
before the fact. 

Indicted August, 1929, for the murder of Yee Toon Wah on Aug. .5, 1929, 
Sang arraigned Sept. 5, 1929, and pleaded not guilty; Yun arraigned Aug. 12; 
1929, and pleaded not guilty. 



P.D. 12. 37 

Southeastern District (in charge of District Attorney Winfield M. 

Wilbar). 
Wallace Allan Graham. 

Indicted in Norfolk County, December, 1928, for the murder of Janet Graham, 
at Quincy, on Sept. 9, 1928; arraigned April 16, 1929, and pleaded not guilty; 
committed to the Bridgewater State Hospital for observation, April 16, 1929. 

Christopher E. Cullen. 

Indicted in Plymouth County, February, 1929, for the murder of Cora J. Cullen, 
at Hingham, on Jan. 25, 1929; arraigned March 14, 1929, and pleaded not 
guilty; committed to the Bridgewater State Hospital for observation, April 17, 
1929. 



3S P.D. 12. 

OPINIONS. 

Voting — Public Policy Act — Instructions to Legislators. 

A vote upon a question of public policy relating to the repeal of the 
Eighteenth Amendment to the Constitution of the United States is 
governed by G. L., c. 53, §§ 19-22, as amended. 
If such a question receives a majority of all the ballots cast at the elec- 
tion in which it is voted upon, and a majority of the ballots actually 
cast in relation to the particular question are in the affirmative, the 
result is to be construed as an instruction to a member of the 
Legislature. 

Dec. 1, 1928. 
His Excellency the Governor, and the Honorable Council. 

Gentlemen: — From your recent communication to me I gather the 
following facts: At the State election held in November there was sub- 
mitted to the voters in a senatorial district of this Commonwealth a 
question of public policy relating to the repeal of the Eighteenth Amend- 
ment to the Constitution of the United States. The vote thereon in that 
district resulted as follows: Affirmative votes, 18,242; negative votes, 
11,320; other ballots cast by voters who did not vote on that particular 
question, 10,339 — making the total number of ballots cast in that dis- 
trict 39,901. You ask me whether G. L., c. 53, §§ 19-22, inclusive, apply 
to that particular question, and if so, whether the vote above described 
constitutes an instruction to the senator from that district. 
Mass. Const., pt. 1st, art. XIX, is as follows: — 

"The people have a right, in an orderly and peaceable manner, to 
assemble to consult upon the common good; give instructions to their 
representatives, and to request of the legislative body, by the way of 
addresses, petitions, or remonstrances, redress of the wrongs done them, 
and of the grievances they suffer." 

G. L., c. 53, § 19, as amended by St. 1925, c. 97, so far as material, is as 
follows : — 

"On an application signed by twelve hundred voters in any senatorial 
district, . . . asking for the submission to the voters of that senatorial 
. . . district of any question of instructions to the senator . . . from 
that district, and stating the substance thereof, the attorney general 
shall upon request of the state secretary determine whether or not such 
question is one of public policy, and if such question is determined to 
be one of public policy, the state secretary and the attorney general shall 
draft it in such simple, unequivocal and adequate form as shall be deemed 
best suited for presentation upon the ballot. Upon the fulfilment of the 
requirements of this and the two following sections the state secretary 
shall place such question on the official ballot to be used in that sena- 
torial . . . district at the next state election." 

G. L., c. 53, §§ 20 and 21, deal only with the signing and fifing of appli- 
cations by registered voters, and have no bearing on the question asked 
by you. 

G. L., c. 53, § 22, is as follows: — 

"No vote under the three preceding sections shall be regarded as an 
instruction under article nineteen of the bill of rights of the constitution 



P.D. 12. 39 

of the commonwealth, unless the question submitted receives a majority 
of all the votes cast at that election." 

The question of public policy relating to the repeal of the Eighteenth 
Amendment to the United States Constitution, which question is referred 
to in your letter, was the subject of litigation in our Supreme Judicial 
Court recently, and that court held, in the case of Thompson v. Secretary 
of the Commonwealth, 265 Mass. 16, in substance, that it was a question 
of instructions under G. L., c. 53, § 19, as amended by St. 1925, c. 97. 
In answer to the first part of your question, therefore, I am constrained 
to advise you that G. L., c. 53, §§ 19-22, inclusive, apply. 

The next part of your question is, in substance, whether the result of 
the vote shown above is such as to constitute an instruction to the senator 
from the district in which the vote was had. 

It is necessary under G. L., c. 53, § 22, in order that a vote shall be 
regarded as an instruction, that "the question submitted" shall receive 
a majority of all the votes cast at that election. I am of the opinion 
that by the phrase "a majority of all the votes cast at that election" the 
Legislature meant to say "a majority of all the ballots cast at that elec- 
tion." If the word "votes" were to be interpreted as meaning simply 
votes actually cast for or against the particular question, the section 
would be almost meaningless, because, except in the case of an actual 
tie vote, there would always be a majority one way or the other on the 
question submitted. I believe that the Legislature intended that a vote 
on a question of public policy should not be deemed an instruction to 
the senator unless at least fifty per cent of the voters who went to the 
polls in that district cast votes for or against the question. The number 
of voters who went to the polls in the senatorial district in question, as 
shown by the total number of ballots cast, was 39,901, and fifty per cent 
of that figure is 19,951. The total number of votes in that district, both 
affirmative and negative, which were cast on the question submitted, 
was 29,562, or more than a majority of all the ballots cast at the election. 
I am therefore of opinion that the vote in that district is to be "regarded as 
an instruction under article nineteen of the bill of rights of the consti- 
tution of the commonwealth," and inasmuch as the affirmative votes on 
the question were 18,242 and the negative votes were 11,320, I am of 
the opinion that the senator from that district was instructed to vote 
in favor of a resolution seeking the repeal of the Eighteenth Amendment 
to the Constitution of the United States. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Public Health — Consent of Department — Taking by Local Authorities — 
Water Supply. 

The Department of Public Health is not limited to approving or dis- 
approving a proposed taking as a whole, under G. L., c. 40, § 41, 
but it does not possess authority to limit such a taking to a specified 
time. 

Dec. 3, 1928. 

Dr. George H. Bigelow, Commissioner of Public Health. 

Dear Sir: — You have requested my advice relative to proposed ac- 
tion by your Department under the provisions of G. L., c. 40, § 41. 
You state in your letter to me as follows : — 



40 P.D. 12. 

"The water commissioners of the town of Weymouth, acting under the 
provisions of G. L., c. 40, § 41, have requested the approval by this De- 
partment of the purchase or taking by right of eminent domain, for the 
protection of the waters of Weymouth Great Pond, which is the water 
supply of the town of Weymouth, of certain parcels of land described in 
a vote taken at the annual town, meeting held March 5, 1928. 

The Department, in accordance with the requirements of G. L., c. 40, 
§ 41, gave a hearing upon the proposed taking, at its office, on November 
20th, after notice. 

It appears that, while the town has given the water commissioners 
authority to secure all of the lands in question, it is not the intention of 
the town authorities to acquire all of this land at the present time but 
to acquire only those lots which are hkely soon to be developed for build- 
ing or upon which buildings or structures exist which are a menace to 
the water supply or likely to become so. The region about Great Pond 
contains already a considerable number of dwelling houses, and it seems 
likely that the population will increase more or less rapidly in the future, 
the effect of which will inevitably cause deterioration in the quality of 
the water of Great Pond. 

Considering the circumstances, the Department would probably be 
justified in approving the taking of the lands in question if they were to 
be taken at the present time. The question arises whether it is reasonable 
under the circumstances for the Department to approve the taking of 
these lands after having been advised that the takings may extend over 
a period of ten years, more or less. 

A second question is: Has the Department authority to limit the tak- 
ings to a specified date or within a specified period of years? 

There is a third question, and that is: Whether the owner of a piece 
of land, the taking of which has been approved by this Department but 
not carried out by the town, can recover damages for injury to the land 
for the purposes of sale, provided damage can be proven?" 

G. L., c. 40, § 41, is as follows: — 

"Towns and water supply and fire districts duly established by law 
may, with the consent and approval of the department of public health, 
given after due notice and a hearing, take by eminent domain under chap- 
ter seventy-nine, or acquire by purchase or otherwise, and hold, lands, 
buildings, rights of way and easements within the watershed of any pond, 
stream, reservoir, well or other water used by them as a source of water 
supply, which said department may deem necessary to protect and pre- 
serve the purity of the water supply. All lands taken, purchased or other- 
wise acquired under this section shall be under the control of the board 
of water commissioners of the town or district acquiring the same, who 
shall manage and improve them in such manner as they shall deem for 
the best interest of the town or district. All damages to be paid by a 
town or district by reason of any act done under authority hereof may 
be paid out of the proceeds of the sale of any bonds authorized by law 
to be issued by such town or district for water supply purposes or from 
any surplus income of the water works available therefor. A town may 
also make a contract to contribute to the cost of building, by any other 
town situated in the watershed of its water supply, a sewer or system of 
sewers to aid in protecting such water supply from pollution." 



P.D. 12. 41 

The matter of giving consent and approval to the proposed taking is 
one which rests solely in the exercise of sound discretion by your Depart- 
ment. It may give or withhold its consent and approval upon a consider- 
ation of any facts which are before it. It may give its approval to the 
taking of any part of the realty which is proposed to be taken, and may, 
if it deems proper, withhold such approval from the taking of any part 
which it deems not necessary for the protection or preservation of the 
water supply. The Department is not limited to approving or disapprov- 
ing of the proposed taking as a whole. It lies within the authority of 
the Department to withhold its approval from the proposed taking if it 
is satisfied that the same is to be made at a subsequent period and it is 
not satisfied that a taking, at a later period than the present time, can 
be determined by it now to be necessary for the protection and preser- 
vation of the water supply as indicated in the statute. 

I am of the opinion that the Department does not possess authority 
under the statute "to limit the takings to a specified date or within a 
specified period of years." 

In view of the opinions which I have already expressed, an answer to 
your third question is not required. 

Very truly yours, 

Joseph E, Warner, Attorney General. 

Constitution — Treasurer and Receiver General — Vacancy in Office. 

When a Treasurer and Receiver General who has been elected Lieutenant- 
Governor takes the oath qualifying him for the latter office, he auto- 
matically vacates the former office. 

Dec. 5, 1928. 

Hon. William S. Youngman, Treasurer and Receiver General. 

Dear Sir: — You ask my opinion as to whether you cease to be Treas- 
urer and Receiver General on taking the oath of office as Lieutenant- 
Governor on Wednesday, January 2, 1929. 

So much of Mass. Const. Amend. LXIV, § 1, as is material is as follows: — 

"The governor, lieutenant-governor, councillors, secretary, treasurer 
and receiver-general, attorney-general, auditor, senators and represen- 
tatives, shall be elected biennially. The governor, lieutenant-governor and 
councillors shall hold their respective offices from the first Wednesday in 
January succeeding their election to and including the first Wednesday in 
January in the third year following their election and until their successors 
are chosen and qualified. . . . The terms of the secretary, treasurer and 
receiver-general, attorney-general and auditor, shall begin with the third 
Wednesday in January succeeding their election, and shall extend to the 
third Wednesday in January in the third year following their election and 
until their successors are chosen and qualified." 

Mass. Const., pt. 2nd, c. VI, art. II, in so far as material to the question 
asked by you, is as follows: — 

"No governor, lieutenant-governor, or judge of the supreme judicial 
court, shall hold any other office or place, under the authority of this 
commonwealth, except such as by this constitution they are admitted to 
hold, . . ." 



42 P.D. 12. 

The third Wednesday in January, 1929, which marks the end of your 
term of office as Treasurer and Receiver General, falls on January 16th. 
The first Wednesday in January, 1929, which will mark the first day of 
your term of office as Lieutenant-Governor, falls on January 2nd. 

I find nothing in the Constitution of Massachusetts, or in the amend- 
ments thereto, which permits the Lieutenant-Governor to hold the office 
of Treasurer and Receiver General, and I am therefore of the opinion that 
under Mass. Const., pt. 2nd, c. VI, art. II, you wall, on taking the oath 
of office as Lieutenant-Governor on January 2, 1929, automatically cease 
to be Treasurer and Receiver General. 

I am confirmed in this opinion by the reasoning adopted by one of my 
predecessors in an opinion rendered on February 19, 1917, to the Joint 
Committee on Constitutional Amendments (V Op. Atty. Gen. 20, 22-23), 
to the effect that the Governor, Lieutenant-Governor and justices of the 
Supreme Judicial Court could not, while occupying their respective offices, 
also sit as delegates in the Constitutional Convention, because the position 
of delegate to said convention was a place under the authority of the 
Commonwealth. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Metropolitan District Water Supply Commission — Taxes — Payments. 

Under St. 1926, c. 375, the Commonwealth should pay to a town wherein 
lands have been purchased for the purpose of protecting the purity 
of the Ware River an amount equal to that which the town would 
receive for taxes upon the average of the assessed value of the lands, 
exclusive of structures, for the three years last preceding the purchase, 
reduced by prior abatements. 

Dec. 6, 1928. 
Metropolitan District Water Supply Commission. 

Gentlemen : — You have informed me that the Metropolitan Dis- 
trict Water Supply Commission has acquired by purchase certain lands, 
together with the structures thereon, in the town of Rutland for the 
purpose of protecting the purity of the waters of the Ware River, to be 
diverted for a water supply under the provisions of St. 1926, c. 375. You 
have asked my opinion as to whether, under the provisions of G. L., 
c. 59, § 6, the Metropolitan District Water Supply Commission should 
pay to the town of Rutland an amount equal to that which the town 
would receive upon the average of the assessed values of such land, 
including buildings or other structures thereon. 
G. L., c. 59, § 6, provides as follows: — 

"Property held by a city, town or district, including the metropolitan 
water district, in another city or town for the purpose of a water supply, 
the protection of its sources, or of sewage disposal, if yielding no rent, 
shall not be liable to taxation therein; but the city, town or district so 
holding it shall, annually in September, pay to the city or town where it 
lies an amount equal to that which such city or town would receive for 
taxes upon the average of the assessed values of the land, which shall 
not include buildings or other structures except in the case of land taken 
for the purpose of protecting the sources of an existing water supply, for 
the three years last preceding the acquisition thereof, the valuation for 
each year being reduced by all abatements thereon. Any part of such 



P.D. 12. 43 

land or buildings from which any revenue in the nature of rent is received 
shall be subject to taxation. 

If such land is part of a larger tract which has been assessed as a whole, 
its assessed valuation in any year shall be taken to be that proportional 
part of the valuation of the whole tract which the value of the land so 
acquired, exclusive of buildings, bore in that year to the value of the 
entire estate." 

The above section expressly applies to property held bj'- the jNIetro- 
politan Water District. G. L., c. 4, § 7, par. 36, provides that "water 
district" shall include "water supply district." It follows that section 6 
apphes to property held by the Metropohtan Water Supply District. 

It is provided that property held by a district in another city or town 
for the purpose of a water supply or for the protection of its sources 
shall not be liable to taxation if it yields no rent. I am informed that 
the property in question yields no rent. The property is held for the 
purpose of a water supply and to protect the sources thereof, it having 
been acquired in connection with the Ware River project for the purpose 
of furnishing an adequate water supply for the metropolitan district. 
It follows, therefore, that the property is not liable to taxation in the 
city or town where it lies. 

Said section 6 further provides that if no taxes are payable on the 
property the district shall pay to the city or town where it lies a certain 
amount defin?d by said section, based upon the average of the assessed 
values of the land, which shall not include buildings or structures except 
in the case of land taken for the purpose of protecting the sources of an 
existing water supply. As to the land itself, clearly this method of pay- 
ment applies in the present case. Buildings and other structures are not 
to be included in the assessed value of the land, unless the land is taken 
for the purpose of protecting an existing water supply. There is at pres- 
ent no existing water supply at this place, and it follows, therefore, that 
buildings and structures in this area are not to be included in the assessed 
value which forms the basis for the payment to the city or town in lieu 
of taxes. 

The result is that the Commission should pay to the town of Rutland 
an amount equal to that which the town would receive for taxes upon 
the average of the assessed values of the land, not including buildings 
or other structures thereon, for the three years last preceding the acqui- 
sition thereof, the valuation for each year being reduced by all abate- 
ments thereon. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Registration — Certified Public Accountant — Change of Business Name. 

The addition of the words "& Co." to that of a duly certified public ac- 
countant, where the accountant has not in fact created a partnership 
or a corporation, does not violate the provisions of G. L., c. 112, 
§ 87E, relative to registration. 

Dec. 6, 1928. 

Mr. W. F. Craig, Director of Registration. 

Dear Sir : — You have asked my opinion as to whether an individual 
named John Jones, duly certified as a certified public accountant under 



44 P.D. 12. 

the laws of Massachusetts, may do business under the name of "John 
Jones & Co., Certified Pubhc Accountants." 

G. L., c. 112, § 87E, provides as follows: — 

"No person, not registered under the provisions of section eighty-seven C 
or corresponding provisions of earlier laws, shall designate himself or 
hold himself out as a certified public accountant. No partnership unless 
all of its members are registered under said provisions, and no corporation, 
shall use the words 'certified public accountant' in describing the part- 
nership or corporation or the business thereof; . . ." 

As long as there is no corporation or partnership, there can be no ob- 
jection to John Jones doing business under the above name. The use of 
the words "& Co." does not constitute John Jones, who is the sole owner, 
a partnership. These words do not necessarily imply that a partnership 
exists, as it is perfectly proper for an individual to use the words "& Co." 
after his name. See Crompton v. Williams, 216 Mass. 184. There is no 
violation of the provisions of section 87E disclosed, although it may well 
be that the individual should file with the city or town clerk the business 
certificate required by G. L., c. 110, § 5. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Division of Metropolitan Planning — Jurisdiction. 

The jurisdiction of the Division of Metropohtan Planning under St. 1923, 
c. 399, as amended, extends to any town added by the Legislature to 
the north or south metropolitan district. 

Dec. 7, 1928. 

Hon. Henry I. Harriman, Chairman, Division of Metropolitan Planning. 

Dear Sir: — You have asked my opinion as to whether St. 1928, c. 384, 
adds the towns of Norwood, Stoughton and Walpole to the district to be 
covered by your Division with respect to the investigations and recom- 
mendations provided for in St. 1923, c. 399, as amended by St. 1924, c. 354, 

At the time of the passage of St. 1923, c. 399, it was, obviously, the 
intent of the Legislature to make the jurisdiction of the Division of Met- 
ropolitan Planning, with respect to transportation service and facilities, 
co-extensive with the jurisdiction exercised by the Metropolitan District 
Commission over the north and south metropoHtan sewer districts and the 
metropolitan parks district. 

I am of the opinion that the jurisdiction of your Division extends auto- 
matically to any town which is added by the Legislature to either the 
north or south metropolitan sewer district, and that, consequently, the 
towns of Norwood, Stoughton and Walpole are now a part of the district 
to be covered by your investigations and recommendations under the 
statutes above mentioned. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Department of Conservation — Governor — Killing Deer. 

Neither the Governor nor the Commissioner of Conservation has the 
power to restrict or prohibit the killing of deer during the open season ; 
except that the Governor may so act when it shall appear to him 
that by reason of extreme drouth there is danger of forest fires. 



P.D. 12. 45 

Dec. 10, 1928. 
Hon. William A. L. Bazeley, Commissioner oj Conservation. 

Dear Sir: — You have asked my opinion as to whether or not the 
Governor of the Commonwealth, the Commissioner of Conservation or 
any other official has the right to restrict or prohibit the shooting of deer 
within the open season prescribed by G. L., c. 131, § 63, as amended by 
St. 1928, c. 215, other than on reservations held by and under the con- 
trol of the Commonwealth. 

Said section 63 provides as follows : — 

"Any person duly authorized to hunt in the commonwealth may, be- 
tween sunrise of the first Monday of December and sunset of the second 
following Saturday, hunt, pursue, take or kill by the use of a shotgun, a 
wild deer, subject to the following restrictions and provisions: No person 
shall, except as provided in the preceding section, kill or have in possession 
more than one deer. No deer shall be hunted, taken or killed on land 
posted in accordance with section seventy-nine, or on land under control 
of the metropolitan district commission, or in violation of any city or- 
dinance or town by-law, or in any state reservation subject to section 
sixty-eight except as provided therein. No person shall make, set or use 
any trap, salt lick or other device for the purpose of ensnaring, enticing, 
taking, injuring or kilHng a deer. Whoever wounds or kills a deer shall 
make a written report, signed by him, and send it within twenty-four hours 
of such wounding or killing, to the director, stating the facts relative to 
the wounding or killing. Violations of this section shall be punished 
by a fine of not more than one hundred dollars." 

Assuming that a person qualifies, he is entitled to a sporting license 
which permits him to take and kill deer within the open season as described 
in said section 63. Section 63 provides that no deer shall be hunted, taken 
or killed on land posted in accordance with section 79, or on land under 
control of the Metropolitan District Commission, or in violation of any 
city ordinance or town by-law, or in any State reservation subject to 
section 68, except as provided therein. Every person properly holding 
a sporting hcense has the right, under the section, to hunt and kill deer 
on all other lands, provided it is not in violation of any city ordinance or 
town by-law. The Commissioner has no power to modify or to limit the 
right to hunt on such other lands. 

G. L., c. 131, § 29, as amended by St. 1925, c. 249, provides that the 
Governor, with the advice and consent of the Council, may suspend the 
continuance of any or all open seasons established by this chapter when- 
ever it shall appear to him that by reason of extreme drouth there is danger 
of forest fires resulting from hunting, trapping, fishing or other cause. It 
will be seen that the power of the Governor under this section is limited 
to cases in which it appears to him that such danger exists, and it is, of 
course, for him to decide whether in any given instance there is such 
danger. 

A city or town may by ordinance or by-law prohibit the taking and 
kiUing of deer during this season, but if this is not done a person holding 
a license as above stated may exercise the rights conferred by section 63. 
If it is deemed advisable to confer upon the Governor or the Commissioner 
the power to suspend the open season on deer, such power should be given 
by the Legislature. 

I therefore advise you that the Commissioner has no power to prohibit 



46 P.D. 12. 

the taking and killing of deer during the open season established by the 
Legislature. I further advise you that the Governor has no power to 
suspend the continuance of said open season except as indicated above. 
The open season may be suspended by no other body except a city council 
or board of selectmen in any given city or town. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitution — Treasurer and Receiver General — Vacancy in Office. 

When a Treasurer and Receiver General who has been elected Lieutenant- 
Governor takes the oath qualifying him for the latter office, he auto- 
matically vacates the former office. 

Two suitable persons are to be appointed in such a contingency to take 
custody of valuables in the treasury. 

Dec. 11, 1928. 

His Excellency Alvan T. Fuller, Governor of the Commonwealth. 

Sir : — You desire the opinion of this Department with respect to 
certain questions which may arise incident to the ending of Mr. Young- 
man's term as Treasurer and Receiver General on the beginning of his 
term as Lieutenant-Governor. 

Under Mass. Const. Amend. LXIV it is provided that "the governor, 
lieutenant-governor and councillors shall hold their respective offices from 
the first Wednesday in January succeeding their election to and includ- 
ing the first Wednesday in January in the third year following their 
election and until their successors are chosen and qualified." 

I am advised by the Secretary of the Commonwealth that the practice 
is for the new Governor and Lieutenant-Governor to take their respective 
oaths of office on the Thursday next following the first Wednesday in Jan- 
uary, which this year will be January 3rd. Under the same amendment the 
term of the Treasurer and Receiver General and the term of certain 
other State officers ''shall begin with the third Wednesday in January 
succeeding their election and shall extend to the third Wednesday in 
January in the third year following their election and until their suc- 
cessors are chosen and qualified." Mr. Youngman's term as Treasurer 
and Receiver General would normally end, therefore, on the third Wednes- 
day of January, 1929, which will be January 16th; but Mr. Youngman 
has been elected to the office of Lieutenant-Governor, and in the normal 
course of events would take the oath of office as Lieutenant-Governor 
on Thursday, January 3rd, thus creating a vacancy in the office of 
Treasurer and Receiver General. 

Mass. Const. Amend. XVII provides, in part, that, "in case the office 
... of treasurer and receiver-general . . . shall become vacant, from 
any cause, during an annual or special session of the general court, such 
vacancy shall in like manner be filled by choice from the people at 
large." The words "in like manner" refer to an election by joint ballot 
of the senators and representatives in one room. 

Mass. Const. Amend. LXIV further provides that "the terms of sen- 
ators and representatives shall begin with the first Wednesday in January 
succeeding their election and shall extend to the first Wednesday in 
January in the third year following their election and until their suc- 
cessors are chosen and qualified." The incoming Legislature, therefore, 
comes in on Wednesday, January 2nd, and on that day the Senate and 



P.D. 12. 47 

House organize, and the annual session referred to in Mass. Const. Amend. 
XVII thereupon begins on that day. Therefore, at the time Mr. Young- 
man, on Thursday, January 3rd, takes the oath of office as Lieutenant- 
Governor, and thereafter automatically ceases to be Treasurer and 
Receiver General, the filling of that vacancy in the office of Treasurer 
and Receiver General is one that must, under Amendment XVII, above 
quoted, be filled by an election by the two houses of the Legislature on a 
joint ballot. 

G. L., c. 10, § 12, provides as follows: — 

"Upon a vacancy in the office of state treasurer, the state secretary, 
with two suitable persons appointed by warrant of the governor, shall, 
after notice to the former treasurer, . . . and to his sureties or one of 
them, or to such of them as are within the commonwealth, seal up and 
secure, in their presence if they attend, all money, papers and other 
things supposed to be the property of the commonwealth ..." 

And the same chapter contains further provisions as to what the Secre- 
tary of the Commonwealth and the two suitable persons shall thereafter 
do by way of making an inventory of money and securities and other 
things and for the exchanging of receipts with the new Treasurer and 
Receiver General. 

My conclusions are that Mr. Youngman, b}- taking the oath of office 
as Lieutenant-Governor on January 3rd, will thereby automatically vacate 
the office of Treasurer and Receiver General; that the Legislature will 
then be in session, and, under the Constitution, will have the power of 
filling the office of Treasurer and Receiver General by an election, and 
that, pending such election, it will be the duty of the Secretary of the 
Commonwealth and two suitable persons to be appointed by Your Ex- 
cellency to take custody, after certain formalities, of all the money, 
papers and other things supposed to be the property of the Common- 
wealth in the office of the Treasurer and Receiver General, and to retain 
them until a new Treasurer and Receiver General shall have been quali- 
fied. Your Excellency should be prepared, therefore, to appoint under 
your warrant two suitable persons to act seasonably with the Secretary 
of the Commonwealth. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — Stock Company — Dividends. 

Policyholders may participate in dividends of stock companies of insurance 
other than life insurance. 

Jan. 2, 1929. 
Hon. Merton L. Brown, Commissioner of Instance. 

Dear Sir: — My opinion is requested upon the following question: — 

"Is it lawful for a stock insurance company, other than a life com- 
pany, to pay or allow dividends to policyholders under policies issued in 
this commonwealth, or is the payment or allowance thereof prohibited 
by G. L., c. 175, §§ 182 and 184?" 

I assunie from the facts stated in your letter that the privilege or right 
to participate in dividends declared by the stock insurance company to 
whom you refer is set forth in the policy itself. 



48 P.D. 12. 

That general participation by policyholders in dividends of stock com- 
panies is not a violation of the prohibitions against rebates and consid- 
erations, contained in sections of the statutes regulating insurance (now 
embodied in G. L., c. 175, §§ 182-184, as amended), was held in an 
opinion of one of my predecessors in office (IV Op. Atty. Gen. 503), with 
which I concur. The amendments made in the various statutes regu- 
lating the insurance business since such opinion was written do not evi- 
dence any legislative intent to make such participation unlawful. The 
particular reference to participation in the savings, earnings or surplus 
of mutual insurance companies without specification in the policy, in- 
serted in the statutes since the writing of said opinion (G. L., c. 175, 
§ 184, as amended), does not, in my opinion, affect the legality of par- 
ticipation in the dividends of a stock company specified in the poHcy 
when such participation is not in its nature a "special advantage" with 
regard to any particular policyholder or holders, as the words "special 
advantage" are construed in said opinion of one of my predecessors in 
office. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Police Commissioner for the City of Boston — Traffic Sig7is — Expense. 

Expenses of erection and maintenance of traffic signs in Boston fall upon 
the police department. 

Jan. 3, 1929. 

Hon. Herbert A. Wilson, Police Commissioner for the City of Boston. 

Dear Sir: — You have asked me to advise you upon the following: — 

"The exact question in issue is whether in Boston the Police Com- 
missioner or the Board of Street Commissioners or the Department of 
Public Works of the Commonwealth has the authority and duty to place 
signs, markings, etc., after they have been authorized by ordinance or 
by-law and approved by the Department of Public Works." 

Traffic signs and markings made necessary by ordinance regulation or 
by law of the city of Boston or its officials, and approved by the Depart- 
ment of Public Works of the Commonwealth, are not required by law 
to be placed or paid for by said Department. St. 1928, c. 357, authorizes 
the said Department to erect and maintain such signs and markings on 
certain highways, and if these be in fact erected and maintained by said 
Department the expense thereof should be borne by it, but the expense 
of such signs and markings upon such highways, or upon other highways, 
erected or maintained thereon by any city or town with the approval of 
the said Department, is not required to be borne by the said Department. 

As to the allocation of the expense of the erection and maintenance of 
signs and traffic markings to be erected by the city of Boston, with the 
approval of the said Department, as between the Police Commissioner 
and the Street Commissioners of Boston, I am of the opinion that such 
expense should be paid as expenses of the police department, and that 
the Police Commissioner has the authority and duty of placing such 
signs and markings as are necessary to enforce the regulations, ordinances 
and by-laws which have been made and approved with relation to street 
traffic. St. 1908, c. 447. 

I am not unaware of the limitations to the extent to which opinions 
and advice should be given to the Police Commissioner for the city of 



P.D. 12. 49 

Boston by the Attorney General (see VII Op. Atty. Gen. 735), but I 
consider that your question so far involves a consideration of the duties 
of the Commissioner under the statutes governing his office as to require 
an expression of my opinion thereon. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Department of Labor and Industries — Common Drinking Cups and Towels 

— Rules. 

The Department of Labor and Industries may make rules and regula- 
tions relative to common drinking cups and towels in certain places, 
under G. L., c. 149, § 113, but not under § 6. 

Jan. 5, 1929. 

Gen. E. Leroy Sweetser, Commissioner of Labor and Industries. 

Dear Sir: — You have asked my opinion as to whether the Depart- 
ment of Labor and Industries has the legal power, under G. L., c. 149, 
§ 6, to make rules and regulations prohibiting the use of a common drink- 
ing cup and a common towel in factories, workshops and mercantile 
establishments. Said section 6 provides as follows: — 

"It shall investigate from time to time employments and places of 
employment, and determine what suitable safety devices or other reason- 
able means or requirements for the prevention of accidents shall be 
adopted or followed in any or all such employments or places of employ- 
ment; and also shall determine what suitable devices or other reasonable 
means or requirements for the prevention of industrial or occupational 
diseases shall be adopted or followed in any or all such employments 
or places of employment; and shall make reasonable rules, regulations 
and orders applicable to either employers or employees or both for the 
prevention of accidents and the prevention of industrial or occupational 
diseases." 

Section 1 of said chapter 149 contains the following definition: — 

'"Industrial disease' or 'occupational disease', any ailment or disease 
caused by the nature or circumstances of the employment." 

Industrial or occupational diseases, as defined above, are those arising 
from the pecuhar nature of the employment, and do not include diseases 
that are communicable to other persons by reason of the use of a common 
drinking cup or common towel. Diseases communicated to others by 
the use of such cup or towel are not incidental or peculiar to the employ- 
ment but are of a nature that may be communicated by such use without 
reference to the nature or circumstances of the employment. It follows 
that, under section 6, the Department has no power to make the rules 
and regulations under consideration. 

However, I am of the opinion that the Department, under the author- 
ity of G. L., c. 149, § 113, may make reasonable rules and regulations 
prohibiting the use of the common drinking cup or common towel in any 
factory, workshop, manufacturing, mechanical or mercantile establish- 
ment. Said section 113 provides as follows: — 

"Every factory, workshop, manufacturing, mechanical and mercantile 
establishment shall be well hghted, well ventilated and kept clean and 



50 P.D. 12. 

free from unsanitary conditions, according to reasonable rules and regu- 
lations adopted by the department with reference thereto." 

In order to keep such places clean and free from unsanitary conditions, 
it is clearly reasonable to prohibit the common drinking cup and common 
towel, both of which are universally recognized to be unsanitary and 
dangerous to public health. The Department will be acting well within 
the scope of this section if it makes the rules and regulations under 
consideration. 

Section 106 of said chapter 149 provides as follows: — 

"All industrial establishments shall provide fresh and pure drinking 
water to which their employees shall have access during working hours. 
Any person owning, in whole or in part, managing, controlling or super- 
intending any industrial establishment in which this section is violated 
shall, on the complaint of the local board of health, the selectmen of a 
town or an inspector, be punished by a fine of one hundred dollars." 

This section, contained in the chapter dealing with Labor and Indus- 
tries, indicates that the question of supplying fresh and pure drinking 
water to employees in any industrial establishment is clearly one for the 
attention of the Department of Labor and Industries, and adds weight 
to the conclusion that the Department may make the rules and regula- 
tions above referred to. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Department of Public Safety — Forfeited Automobiles — Sales. 

The Department of Public Safety may sell automobiles forfeited and 
forwarded to it under an order of court. 

Jan. 9, 1929. 

Gen. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You have asked me to advise you on the following mat- 
ter: — 

"Inquiry has been made regarding the status of cases concerning two 
automobiles forfeited to the Commonwealth but with suits brought 
against the State to recover. One concerns a Ford coupe forfeited July 6, 
1927; the other concerns a Ford coupe forfeited on October 28, 1927. 

We have these cars in our possession and desire to dispose of them, our 
facilities for storage being very limited and the cars not improved by not 
being used." 

I am unable to find any provision of law permitting actions against the 
Commonwealth to recover, after forfeiture bj^ "authority of the court or 
trial justice," implements of sale or furniture used or kept and provided 
to be used in the illegal keeping or sale of intoxicating liquor. 

"Under our system of jurisprudence the Commonwealth cannot be 
impleaded in its own courts except with its consent." Glickman v. Co7n- 
monwealth, 244 Mass. 148. 

Suits brought to recover automobiles forfeited would be futile gestures 
on the part of the petitioners. 

In the case of E. J. FitzwiUiam Co., Inc. v. Commonwealth, 258 Mass. 
103, 107, the court said : — 



P.D. 12. 51 

"Proceedings for the forfeiture of an automobile, because of its con- 
nection with the illegal sale or keeping for sale of intoxicating liquor under 
statutes already cited, are proceedings in rem. The principle of the 
statute is that the container of the intoxicating hquor or the implements 
of sale used or kept to be used in connection with the illegal sale or keeping 
for sale of such liquor, themselves constitute a subject liable to offend 
against the public welfare notwithstanding the innocence of the owner. 
The things themselves are primarily treated as the offender. The intent 
of the person in actual control may in some circumstances be enough to 
determine the guilt of the articles against which the complaint for for- 
feiture is pending." 

G. L., c. 138, § 71, provides that implements of sale and furniture seized 
and forfeited shall be disposed of in the manner prescribed in G. L., c. 
138, § 69, for the disposition of intoxicating liquor. Said section 69, as 
amended by St. 1923, c. 329, provides, in part, that if, "in the judgment 
of the commissioner it is for the best interests of the commonwealth to 
sell the same, he shall cause the same to be sold." 

I am of the opinion that you may sell automobiles forfeited and for- 
warded to the Department of Public Safety by an order of court, if you 
deem a sale to be for the best interests of the Commonwealth. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Board of Retirement — State Employees — Age. 

A member of the State Retirement Association, sLxty years of age, who 
has been in the service of the Commonwealth over fifteen years 
immediately preceding request for retirement, and whose retirement 
is requested by the head of his department, has an absolute right to 
retire, and must retire at seventy. Between those ages the Board 
of Retirement has the right to exercise its discretion relative to such 
retirement. 

Jan. 9, 1929. 

State Board of Retirement. 

Gentlemen : — I have been requested by the former Treasurer and 
Receiver General, while Chairman of the State Board of Retirement, to 
advise you in relation to your powers and duties under G. L., c. 32, § 2 
(4), as amended, upon the following matter in connection with an 
employee of a State department : — 

"The Board of Retirement wishes your opinion as to whether it is the 
meaning and intent of the law that this Board is obliged to retire a State 
employee when demand is made by the head of the department for his 
retirement, as it is in this case, and when it is insisted upon by the head of 
the department despite the objection of the employee, as it is in this case." 

That portion of the said section applicable to your inquiry reads as 
follows : — 

"Any member who reaches the age of sixty and has been in the con- 
tinuous service of the commonwealth for a period of fifteen years imme- 
diately preceding may retire or be retired by the board upon recommen- 
dation of the head of the department in which he is employed, or, in case 



52 P.D. 12. 

of members appointed by the governor, upon recommendation of the 
governor and council, and any member who reaches the age of seventy 
must so retire." 

The jurisdiction of your Board under said subsection to deal with the 
retirement of a member employed in a department exists (1) when the 
member has reached the age of sixty and has been in the continuous serv- 
ice of the Commonwealth for a period of fifteen years immediately pre- 
ceding an application for retirement, and (2) when a recommendation 
for the member's retirement is presented to you by one who is in fact the 
head of a department in which such member is employed. See IV Op. 
Atty. Gen. 105. Such a member, after attaining the age of sixty, has an 
absolute right to retire, if he desires to do so, without the necessity for any 
action on the part of your Board, and must retire at seventy. 

Between the ages of sixty and seventy such a member may bd retired by 
your Board when it has jurisdiction over the matter by reason of the 
existence of the facts already referred to, irrespective of the desire of the 
member. A decision relative thereto rests with your Board, and I am of 
the opinion that your Board is not obliged to retire such a member merely 
because a recommendation for retirement is transmitted to it by the 
proper official, but that the instant statute gives to the Board authority 
to act in its sound discretion upon such recommendation. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — S7nall Loans Law — Installment Notes. 

Plans for the payment of insurance upon notes payable by the purchasers 
do not relate to loans under G. L., c. 140, §§ 96-114. 

Jan. 17, 1929. 
Hon. Roy A. Hovey, Commissioner of Banks. 

Dear Sir: — You have requested my opinion in the following com- 
munication : — 

"The opinion of your Department is respectfully requested as to 
whether two plans for financing automobile and fire insurance premiums, 
where the amounts are $300 or under, come under the scope of G. L., 
c. 140, §§ 96-114, inclusive. 

The plan marked ' A ' has to do with the financing of automobile liability 
insurance premiums, and the plan marked 'B' has to do with fire insur- 
ance premiums." 

The plans referred to in your letter as "A" and "B" appear to be, 
respectively, (a) a promissory note, payable in the installments indicated 
on its face, to secure payment of premium upon a policy or policies of 
automobile insurance issued through the office of the payee by insurance 
companies for which the payee is an agent, with authority to the payee 
to cancel the policy or policies in the name of the maker if default is 
made in any of the specified payments in the note; and (b) a similar note 
to secure payment of premium upon a policy or policies of fire insurance. 

I am of the opinion that the plans to which you refer, as evidenced by 
the face of the notes which you have submitted, do not relate to "loans," 
within the meaning of G. L., c. 140, §§ 96-114, but are in the nature of 



P.D. 12. 53 

agreements for the extension of credit for policies of insurance actually 
purchased by the maker of the notes, and as such are not within the 
purview of said G. L., c. 140, §§ 96-114. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Acceptance of Statute by a Town — Vote of Inhabitants. 

Acceptance of an act by vote of the inhabitants of a town is made by a 
vote at a town meeting. 

Jan. 19, 1929. 

Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You have asked my opinion in the following communi- 
cation : — 

"St. 1928, c. 406, entitled 'An Act to permit certain sports and games 
on the Lord's Day,' by section 2 amends G. L., c. 136, § 21, and provides 
as follows : — 

'In any city which accepts sections twenty-one to twenty-five, inclu- 
sive, by vote of its city council and in any town which accepts said sec- 
tions by vote of its inhabitants, it shall be lawful to take part in or wit- 
ness any athletic outdoor sport or game on the Lord's day between the 
hours of two and six in the afternoon as hereinafter provided.' 

Your opinion is respectfully requested as to whether the phrase *by 
vote of its inhabitants' means the vote of a town on an official ballot or 
in open town meeting. 

In a town which has a representative form of town government does it 
mean that the representatives will represent the inhabitants so far as to 
permit them to vote on the question, or should the question appear on 
the official ballot to be voted on by the inhabitants?" 

G. L., c. 4, § 4, reads as follows: — 

"Wherever it is provided that a statute shall take effect upon its 
acceptance by a city or town, such acceptance shall, except as otherwise 
provided in such statute, be, in a city, by vote of the city council or, in 
a town, by vote of the inhabitants thereof at a town meeting." 

The phrase used in St. 1928, c. 406, as to its acceptance in any town 
"by vote of its inhabitants" does not indicate an intention that the vote 
shall be taken in a manner other than that set forth in G. L., c. 4, § 4, 
which provides for a "vote of the inhabitants ... at a town meeting." 

G. L., c. 54, § 104, is not apphcable to a vote upon the acceptance of 
statutory provisions, for reasons set forth in Moloney v. Selectmen of 
Milford, 253 Mass. 400, 403-404. 

The adoption of a representative form of town government does not, 
in my opinion, so alter the relations of the inhabitants of a town to its 
town meeting as to make necessary a construction of the words "by vote 
of its inhabitants," as used in the instant statute, as expressing a legis- 
lative intent that the requisite vote should be by official ballot at the 
polls and not by the town meeting. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



54 P.D. 12. 

Trust Company — Trust Funds — Commercial Funds — Mingling. 

An investment of a group of trust funds by the trust department of a 
trust company in a mortgage loan or group of loans, in which the 
funds of the commercial department of the trust company are also 
invested, is improper. 

Jan. 21, 1929. 

Hon. Roy A. Hovey, Commissioner of Banks. 

Dear Sir : — You have requested my opinion as to the propriety of 
the investment of certain trust funds by trust companies authorized to 
act in a fiduciary capacity. You state the following facts : — 

A trust company suggests that it proposes to have all real estate mort- 
gages owned by the company transferred to the trust department to form a 
pool of mortgages. Thereupon participation certificates in such pool or 
fund would be issued to the various trust estates in which the trust com- 
pany, by its trust department, was acting in a fiduciary capacity. Any 
excess interests in the pool not absorbed by the trust department for its 
trust estates would be held by the commercial department of the bank. 
The result of such an arrangement would be a constant participation by 
the commercial department of the trust company in the fund or pool 
through the ownership by the commercial department of trust participation 
certificates. 

You state that under the proposed scheme this form of investment 
would be used not onlj^ for small amounts of trust estates which could not 
otherwise be advantageously invested, but would also be made the primary 
form of investment for the funds of all trust estates held by the bank. 
The propriety of such investment of trust funds by trust companies and 
national banks doing business as fiduciaries within Massachusetts must 
be considered in two aspects : — 

1. How far does the statute law applicable to trust companies and to 
national banks acting as fiduciaries, respectively, permit or prohibit such 
investment? 

2. How far may any fiduciary acting under appointment by a court of 
equity or subject to the control of a court of equity make such an invest- 
ment properly under the principles of equity applicable to the adminis- 
tration of trust estates? 

A. Statute Law Relating to Trust Companies. 
G. L., c. 172, §§ 49, 52-54 and 59, read as follows: — 

"Section 49. Every such corporation acting under any pro\asion of 
the following section or section fifty-two shall have a trust department in 
which all business authorized by said sections shall be kept separate and 
distinct from its general business. 

Section 52. Such corporation may be appointed executor of a will, 
codicil or writing testamentar}^, administrator with the will annexed, ad- 
ministrator of the estate of any person, receiver, assignee, guardian, 
conservator or trustee under a will or instrument creating a trust for the 
care and management of property, under the same circumstances, in the 
same manner, and subject to the same control by the court having juris- 
diction of the same, as a legally qualified individual. Any such appoint- 



P.D. 12. 55 

ment as guardian shall apply to the estate and not to the person of the ward. 
Such corporation shall not be required to receive or hold property or money 
or assume or execute a trust under this section or of section fifty without 
its assent. 

Section 53. Every such corporation may invest the funds or assets 
which it may receive and hold under the preceding section in the same way, 
to the same extent, and under the same restrictions as an individual hold- 
ing a similar position may invest such funds or assets. 

Section 54. Money, property or securities received, invested or loaned 
under the provisions of sections fifty to fifty-two, inclusive, shall be a 
special deposit in such corporation, and the accounts thereof, shall be 
kept separate. Such funds and the investment or loans thereof shall be 
specially appropriated to the security and payment of such deposits, shall 
not be mingled with the investments of the capital stock or other money 
or property belonging to such corporation, or be liable for the debts or 
obligations thereof. 

Section 59. A person creating a trust may direct whether money or 
property deposited under it shall be held and invested separately or in- 
vested in the general trust fund of the corporation; and such corpora- 
tion acting as trustee shall be governed by directions contained in the will 
or instrument under which it acts." 

In my opinion, sections 53 and 54, above quoted, effectually prohibit 
such an investment as that suggested in your request for an opinion, and 
I respectfully advise you that such an investment of trust funds by the 
trust department of a Massachusetts trust company in a mortgage loan 
or group of such loans, in which the funds of the commercial department 
of the bank are also invested, would be manifestly improper. The situa- 
tion which you suggest, when analyzed, amounts to little more than this: 
A trust company desires to pool the real estate mortgage loans made by 
it and to issue against such loans participation certificates to the trust 
accounts held by it, in the proportion in which funds of such trusts are 
used in making such loans. At the same time the commercial department 
will receive participation certificates in the pool mortgage loans in pro- 
portion to its interest in those loans. The participation certificate device 
is really, in substance, not different from a bookkeeping arrangement by 
which the bank indicates upon its own records the proportion in which 
its trust accounts and its commercial department have made a loan to 
strangers in the name of the bank upon the security of real estate mort- 
gages. In my opinion, such an investment of trust funds was intended to 
be prohibited by the sections to which I have referred, and this conclusion 
is to some extent reenforced by the language of the Supreme Judicial 
Court in the cases in which it has construed the sections quoted. Com- 
monwealth-Atlantic National Bank, petitioner, 249 Mass. 440, 447^48, 
approved Atlantic National Bank, petitioner, 261 Mass. 217, 219; Worcester 
County National Batik, petitioner, 263 Mass. 444; cf. Campbell v. Commis- 
sioner of Banks, 241 Mass. 262, 265. 



56 P.D. 12. 

B. The Situation with Resided to National Banks acting as Fiduciaries in 
Massachusetts in accordance with a License granted by the Federal 
Reserve Board under the Provisions of Code of Laws of the U. S., 
Title 12, § 2J^8 (k). 

(Act of Dec. 23, 1923, chap. 6, § 11, 38 Stat, et al. 264, as amended by Act of Sept. 26, 
1918, chap. 177, § 2, 40 Stat, et al. 968.) 

In view of the length of the statute above referred to it is not here 
quoted, but therein it is provided, in part, as follows: — 

"National banks exercising any or all of the powers enumerated in this 
subsection {k) shall segregate all assets held in any fiduciary capacity 
from the general assets of the bank . . . 

Funds deposited or held in trust by the bank awaiting investment shall 
be carried in a separate account and shall not be used by the bank in the 
conduct of its business unless it shall first set aside in the trust department 
United States bonds or other securities approved by the Federal Reserve 
Board." 

The section generally gives to national banks holding the permit 
authorized by the section the power to act as trustee, or in other fidu- 
ciary capacities, in competition with state banks and trust companies, 
where such power is granted to state banks. There is no indication in 
the section that a national bank performing the duties of a fiduciary, 
under appointment of a state court or subject to the provisions of state 
law as to the administration of trusts, is not in every respect as fully 
subject to the control of the court or to the provisions of the state law in 
the administration of such trusts as a trust company or an individual 
acting in a similar fiduciary capacity. This question was expressly left 
undecided b}^ the Supreme Judicial Court in the case of Commonwealth- 
Atlantic National Barik, petitioner, 249 Mass. 440, 447. The reasoning 
of Worcester County National Bank, petitioner, 263 Mass. 444, and the 
cases therein cited, however, is clearly to the effect that a national bank 
acting as a fiduciary appointed by a state court is, with respect to the 
administration of the estate and trust committed to it, subject to the 
control of the court in the same way that an individual or state trust 
company would be if carrying out the same trust. It therefore becomes 
pertinent to discover whether the general principles of equity governing 
the administration of trust estates would permit such an investment by 
a trustee administering a trust or other fiduciary obligation subject to 
the control of a court of this Commonwealth. 

C. The General Principles of Equity Applicable to Such Investments. 

It is well settled that it is the duty of trustees holding distinct trust 
funds to segregate them. They cannot ordinarily be invested together 
and the net income prorated to the beneficiaries. Lannin v. Buckley, 
256 Mass. 78, 82. The situation now under consideration even more 
strongly calls for the application of the rule requiring the complete sep- 
aration of trust funds from funds owned by the trustee individually, 
because of the fundamental principle that a trustee, apart from his proper 
compensation as such trustee, should not in any respect have any pecu- 
niary interest in the administration of his trust. See, for example, 
Buliivant v. First National Bank of Boston, 246 Mass. 324, 334. Wither- 
ington v. Nickerson, 256 Mass. 351, 357. 



P.D. 12. 57 

The arrangement concerning which you have requested this opinion 
clearly involves the minghng of trust assets and commercial assets of 
the trust company in such a way as to create a very decided intermingling 
of personal interest with that of the bank as fiduciary. In the absence 
of clear authorization in the trust instrument under which the fiduciary 
is acting, such a mingling of interest would not, in my opinion, be proper 
for a trustee, whether an individual or a corporation acting by appoint- 
ment from a Massachusetts court or subject to the general control of a 
Massachusetts court of equity. 

Nothing in this opinion should be construed as advising that it is im- 
proper for a trust department of a trust company to permit two or more 
of the trust estates held by it to participate in the whole of a single loan 
secured by mortgage, by use of the participation certificate device. That 
question has not been considered and no opinion is hereby expressed 
thereon. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



Banking — Deposits in Two Names — Joint Accounts. 

A joint account in which the word "and" joins the names of the de- 
positors falls within the provisions of G. L., c. 167, § 14. 

An account in a savings bank doing life insurance business, payable to 
the insured and after his death to a beneficiary, is not a joint account. 

Jan. 22, 1929. 
Hon. Roy A. Hovey, Commissioner of Banks. 

Dear Sir: — You have requested my advice upon certain questions 
relative to deposits made in the names of two persons. 

The apphcable statute, G. L., c. 167, § 14, reads as follows: — 

"When a deposit is made in any bank, in the names of two persons, 
payable to either, or payable to either or the survivor, such deposit, or 
any part thereof, or interest or dividend thereon, if not then attached 
at law or in equity in a suit against either of said persons, may be paid to 
either of said persons, whether the other be living or not, and such pay- 
ment shall discharge the bank making such payment from its obligation, 
if any, to such other person or to his legal representatives for or on 
account of such deposit." 

You state that deposits such as are referred to in the statute are some- 
times made in the following form : — 

"John Doe or Mary Doe 
Payable to either or the survivor." 

And at other times are written as follows : — 

"John Doe and Mary Doe 
Payable to either or the survivor." 

Your first question, which relates to such forms, is: — 

"Can the joint account in which the word 'and' joins the names of 
the depositors be construed as a joint account within the meaning of 
G. L., c. 167, § 14?" 



58 P.D. 12. 

I answer this question in the affirmative. 

Inasmuch as in each instance which you cite the words "payable to 
either or the survivor" appear, it is immaterial whether the word "or" 
be used with the two names or the word "and." In each instance the 
form used sufficiently expresses an intention to make a deposit of the 
kind which falls within the meaning of the statute, and to which all the 
terms of the statute are applicable. Were the phrase "payable to either 
or the survivor" not employed in the second form, the two forms which 
you have set forth would not have a precisely synonymous meaning. 

You have set forth a form said to be used in designating deposits in 
savings banks which act as agents for savings bank life insurance. This 
form reads : — 

"John Doe or Mary Doe 

Payable to the insured during his 

or her life. 

Payable to the survivor in the event 

of death." 

Your question with relation to this form is: — 

" Can this account be construed as a joint account within the meaning of 
section 14, since it is not payable to either except on the death of one?" 

I answer your question in the negative, inasmuch as the deposit is 
payable to the insured depositor alone during his life. 

Your third question with relation to the form of deposit last mentioned 
is: — 

"Can the bank, upon the death of the insured, pay this account to other 
than his or her estate?" 

A deposit made in the said form is not such a deposit as is governed 
by said G. L., c. 167, § 14, and the provisions thereof have no application 
to it. The question, as between the bank and its depositors with relation 
to a construction of the precise character of the ownership of the deposit, 
created by the said form, would seem to be one primarily for judicial 
determination. In the absence of such a determination I do not express 
an opinion upon this question, which is not one which relates directly to 
the discharge of your functions as Commissioner. 

Your fourth question is : — 

"Can the bank loan to one of the parties of a so-called joint account 
(John Doe or Mary Doe, payable to either or the survivor) without the 
consent of the other?" 

G. L., c. 168, as pointed out in your letter, provides in some of its sec- 
tions that a savings bank may loan money to a depositor upon the pass 
book as collateral security. 

In Marble v. Treasurer and Receiver General, 245 Mass. 504, the court 
stated that a deposit such as you describe in your fourth question is not 
strictly a joint tenancy nor is it an estate by the entirety, where the de- 
positors are husband and wife, because of the express terms of the deposit 
that either one of the depositors may withdraw any part or the whole of 
the fund on his single receipt or order, and thereby terminate the tenancy 
without the consent of the other. This right violates the essential char- 
acter of a true joint tenancy. The estate created by such a deposit is at 
most analogous to a joint tenancy but is not a joint tenancy in the ac- 
curate meaning of those words. 



P.D. 12. 59 

There exists a contract between the bank and the depositors that the 
bank will pay the whole or any part of the deposit as agreed upon. 

Whether an implied contract by the bank to loan to one of the depositors 
also exists, under the peculiar circumstances surrounding such a deposit, 
has not been considered by our Supreme Judicial Court. If there were a 
true joint tenancy in the deposit, no one of the owners might cumber the 
same by pledging it. Such a pledging would amount to a severance of 
the joint tenancy, and it would therefore be improper for a savings bank 
to make such a loan. Whether or not such a deposit is so analogous to 
a joint tenancy that a pledge by one of the depositors would be improper 
as against the other, has not been passed upon by the court. These ques- 
tions are primarily for judicial determination, and relate particularly to 
the relations between a savings bank and its depositors, under the terms 
of a contractual arrangement between them. In the absence of judicial 
determination of the points which I have noted, I do not express an opinion 
upon your fourth question, which, like the third, is not one relating 
directly to the discharge of your functions as Commissioner. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Taxation — Life Insurance Policy — Change of Beneficiary. 

The proceeds of a life insurance policy in which the insured reserves the 
right to change the beneficiary, and which is payable after the death 
of the insured to a beneficiary named in the policy, are not subject 
to an inheritance tax. 

Nor are the proceeds of such a policy subject to tax if the insured has not 
reserved the right to change the beneficiary. 

Jan. 22, 1929. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir : — You have requested my opinion on the following ques- 
tions : — 

"Are the proceeds of a life insurance policy in which the insured has 
reserved the right to change the beneficiar}^, which policy is payable after 
the death of the insured to a beneficiary named in the policy, subject to 
inheritance tax in Massachusetts under the laws now in effect? 

Are the proceeds of a life insurance policy subject to tax if the insured 
has not reserved the right to change the beneficiary?" 

Our Massachusetts succession tax statute does not mention life insurance 
policies specifically. The only words of the statute which might be said 
to include life insurance pohcies taken out by the insured upon his life 
and payable to other beneficiaries than his own estate are the words in 
G. L., c. 65, § 1, as amended, — ''property . . . which shall pass . . . 
by . . . gift . . . made or intended to take effect in possession or enjoyment 
after his death (the death of the donor)." The Massachusetts Supreme 
Judicial Court has held that these words of the succession tax statute, 
properly construed, do not include life insurance policies, and that the 
proceeds of life insurance policies are not subject to an inheritance tax in 
Massachusetts. Tyler v. Treasurer and Receiver General, 226 Mass. 306. 

It is my opinion that the recent United States Supreme Court decision 
in Chase National Bank v. United States, 278 U. S. 327, may be distin- 
guished from the decision in Tyler v. Treasurer and Receiver General, 226 
Mass. 306. 



60 P.D. 12. 

In the Chase National Bank case the United States Supreme Court 
was considering the Federal estate tax law, which specifically provides that 
the gross estate of the decedent, for taxation purposes, shall include life 
insurance policies taken out by the decedent upon his own life and made 
payable to other beneficiaries than his own estate. The United States 
Supreme Court was thus considering a tax upon the right to transfer, and 
held that the reserved power in the insured to change the beneficiary gave 
the insured a power of control which might properly be made the subject 
of a transfer tax. By inference it would seem that even in the United 
States Supreme Court, in a case where the Federal estate tax is involved, 
the proceeds of a life insurance policy would not be subject to a transfer 
tax if the insured has not reserved the right to change the beneficiary. 
The language of the decision strongly suggests that a life insurance policy 
payable to a beneficiary other than the estate of the insured may properly 
be considered a gift to take effect in possession or enjoyment after the 
death of the insured, and to hold that a life insurance policy is a gift 
from the insured to the beneficiary. 

The Tyler case was decided in 1917. It is a case which turns upon the 
construction of a State statute. The Massachusetts court is not bound 
by the opinion of the United States Supreme Court as to the construction 
of a State statute. A State court construction of a State statute is final. 
In this case the court said that a life insurance policy made payable by 
the insured to a beneficiary other than his estate "does not by fair in- 
tendment come within the descriptive words of the statute as 'property 
. . . which shall pass . . . by . . . gift . . . made or intended to take 
effect in possession or enjoyment after the death of the grantor.'" 

It seems clear, therefore, that the cases can be distinguished by reason 
of the construction of the statutes involved; and until the Massachusetts 
succession tax statute specifically includes life insurance policies of this 
nature within its terms, it is my opinion that a succession tax upon such 
insurance policies will not be sustained by our Massachusetts court. 

The answer to the first question must therefore be in the negative, and, 
a fortiori, the answer to the second question must also be in the negative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



Constitutional Law — Stock of Trust Company held by Other Banking 
Organizations. 

A proposed law penahzing a trust company, by liquidation, for the hold- 
ing of more than a certain per cent of its stock by certain organiza- 
tions, would, if enacted, be unconstitutional as drawn. 

Feb. 13, 1929. 

Hon. Henry L. Kincaide, Senate Chairman, Committee on Banks and 

Banking. 

Dear Sir: — Your committee has asked my opinion relative to the 
constitutionality, if enacted into law, of House Bill No. 613, which reads 
as follows : ^ 

"Chapter one hundred and sixty-seven of the General Laws is hereby 
amended by inserting after section twenty-two the following new section: — 



P.D. 12. 61 

Section 22A. Whenever it shall appear to the commissioner of banks 
that more than ten per cent of the capital stock of any trust company is 
held, owned, or controlled, directly or indirectly, by any other trust 
company or by any banking association organized under the laws of 
the United States of America, or by any corporation, association, or 
trust directly or indirectly owned, controlled, or affiliated with such other 
trust company or banking association, the commissioner of banks shall 
notify the holder of such capital stock to divest itself thereof within 
thirty days from the date of such notice, and in the event of failure so to 
do, the commissioner of banks shall take possession forthwith of the 
property and business of such trust company more than ten per cent 
of the capital stock of which is so held, owned, or controlled, and retain 
possession of such trust company and liquidate its affairs in the manner 
herein provided." 

The proposed act in effect penalizes a trust company, by the drastic 
measure of enforced liquidation, not for anj^ unlawful or improper action 
of such company but solely because of the failure of some other body 
(not under the control of the trust companjO to comply with an order of 
the Commissioner of Banks. Such a provision, on its face, is so arbi- 
trary and unfair as to give rise to grave doubts as to its validity, if en- 
acted, under the due process clause of the Fourteenth Amendment to the 
Constitution of the United States. Whether the main objects of the 
proposed act could be accomplished by legislation which would consti- 
tute a valid exercise of the police power by the General Court, and more 
particularly of the reserved right to amend and repeal the charters of 
domestic corporations, I do not need to advise. The act, as printed 
above, is so indefinite, uncertain and vague in the standards of conduct 
which it lays down, either for the guidance of individuals investing in the 
stock of a trust company or for the direction of the activities of the Com- 
missioner of Banks, that it would certainly be, for that reason alone, in 
contravention of the due process clause of the Fourteenth Amendment to 
the Federal Constitution. What constitutes control "directly or indi- 
rectly," within the meaning of the act, is in no way definitely set forth. 
A corporate purchaser of stock of a Massachusetts trust company, if this 
bill were enacted, would have no basis for determining whether its pur- 
chase (if it involved more than ten per cent of the stock of the trust 
company) would cause the eventual dissolution of the trust company, 
thereby endangering the purchase as an investment. The only criterion 
by which the vahdity of the purchase could be gauged would be a guess as 
to the way in which the Commissioner of Banks would regard the corpo- 
ration's relations with all or any of its banking connections. Because of 
the absence of any standard which an ordinary man could by his general 
knowledge apply with reasonable certainty to his proposed conduct, the 
proposed bill is, in my opinion, unconstitutional. Connolly v. General 
Construction Co., 269 U. S. 385, 391, and cases there cited; Cline v. Frink 
Dairy Co., 274 U. S. 445, 457; cj. Nash v. United States, 229 U. S. 373, 376. 
Despite grave doubts upon other grounds as to the validity of the whole 
method provided by the proposed bill for carrying out its purpose, I limit 
my opinion to the single ground of unconstitutional indefiniteness. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



62 P.D. 12. 

Motor Vehicles — Compulsory Motor Vehicle Insurance — Express 
Business. 

Motor vehicles owned by express companies are excepted from the appli- 
cation of the compulsory insurance act. 

Feb. 16, 1929. 

Hon. Frank E. Lyman, Commissioner of Public Works. 

Dear Sir: — You request my opinion as to whether motor vehicles 
owned by a corporation engaged in the express business, and, so far as 
the statutes provide, under the supervision of the Department of PubKc 
Utilities, are outside of the application of the compulsory insurance act. 

That act provides (G. L., c. 90, § lA): — 

"No motor vehicle or trailer, except one owned by a person, firm or 
corporation for the operation of which security is required to be furnished 
under section forty-six of chapter one hundred and fifty-nine, or one 
owned by any other corporation subject to the supervision and control 
of the department of public utilities or by a street railway company 
under public control, or by the commonwealth or any political subdivi- 
sion thereof, shall be registered under sections two to five, inclusive, 
unless the application therefor is accompanied by a certificate as defined 
in section thirty-four A." 

The question is whether the fact that the jurisdiction of the Department 
of Public Utilities over express companies appears to be somewhat limited 
takes the case out of the words of the statute above quoted. 

The provisions conferring jurisdiction upon the Department of Public 
Utilities are contained in G. L., c. 159, § 12, which reads as follows: — 

"The department shall, so far as may be necessary for the purpose of 
carrying out the provisions of law relative thereto, have general supervision 
and regulation of, and jurisdiction and control over, the followiug services, 
when furnished or rendered for public use within the commonwealth, 
and all persons, firms, corporations, associations and joint stock associ- 
ations or companies furnishing or rendering any such service or services, 
in sections ten to forty-four, inclusive, collectively called common carriers 
and severally called a common carrier: 

(a) The transportation or carriage of persons or property, or both, 
between points within the commonwealth by railroads, street railways, 
in this chapter called railways, electric railroads, trackless trolleys and 
steamships, including express service and car service carried on upon or 
rendered in connection with such railroads, railways, electric railroads, 
trackless trolleys or steamships. 

(6) The carriage of passengers for hire upon motor vehicles as provided 
in sections forty-five to forty-nine, inclusive, of this chapter and section 
forty-four of chapter one hundred apd sixty-one, but only to the extent 
provided in said sections. 

(c) The operation of all conveniences, appliances, facilities or equip- 
ment utilized in connection with, or appertaining to, such transportation 
or carriage of persons or property or such express service or car service, 
by whomsoever owned or provided, whether the service be common 
carriage or merely in facilitation of common carriage. 

(d) The transmission of intelligence within the commonwealth by 
electricity, by means of telephone lines or telegraph Unes or any other 



P.D. 12. 63 

method or system of communication, including the operation of all con- 
veniences, appliances, instrumentalities, or equipment appertaining 
thereto, or utiHzed in connection therewith." 

G. L., c. 159, § 33, provides: — 

"Every person doing an express business upon either a railroad or 
railway in the commonwealth shall annually transmit to the department 
a return on oath of his doings setting forth copies of all contracts made 
during the year with other persons doing a transportation or express 
business upon any railroad or railway in the commonwealth, and shall 
give complete information in reply to the questions presented in the form 
for such return which shall be prescribed by the department. A person 
neglecting to make such return or, if defective or erroneous, to amend it 
within fifteen days after a request so to do shall forfeit twenty-five dollars 
for each day during which such neglect continues." 

Even if it were assumed that the Department, under chapter 159, has 
no supei^vision and control over express service except so far as it is ren- 
dered upon railroads or steamships, it would be difficult to say that the 
words of section lA of chapter 90 are inapplicable, for those words apply 
to the corporation and not to the service. But, in fact, it seems that the 
supervision and control of the Department over express companies is 
not so confined [see G. L., c. 159, §§ 12 (c) and 33], and, in practice, the 
Department requires companies rendering returns under section 33 to 
give such information as cost and repairs of motor trucks. 

In my opinion, the motor vehicles in question are excepted from the 
application of the insurance act by the express terms of section lA. 
Youns very truly, 

Joseph E. Warxer, Attorney General. 

Constitutional Law — Savings Bank Life Insurance — Statutory Limitations. 

The Legislature may, without violating constitutional provisions, limit 
the amount of the hazard which savings banks as an entire group 
may venture upon lives of insureds. 

Feb. 21, 1929. 

Hon. C. Wesley Hale, Senate Chairman, Committee on Insurance. 

Dear Sir: — The Committee on Insurance, through you, has asked 
my opinion upon the following matter relating to savings bank life 
insurance : — 

"Would the limitations, as proposed in document known as Senate 
132, if enacted into law, violate any constitutional right of the citizens 
of this Commonwealth, and how, if at all, would your opinion differ if 
the life insurance limitation were changed from five thousand dollars to 
ten thousand dollars, the amount available at the present time?" 

The proposed bill. Senate No. 132, is entitled "An Act relative to the 
amount of insurance which savings and insurance banks may pay upon 
the death of the insured," and reads as follows: — 

"Section 1. Section ten of chapter one hundred and seventy-eight 
of the General Laws is hereby amended by adding at the end thereof the 
following: — Provided, that the maximum amount of insurance which 
may be issued to any one person by five or more such banks shall not 



64 P.D. 12. 

exceed in the aggregate five thousand dollars, exclusive of dividends or 
profits, and the maximum yearly payments to any one person under 
annuity contracts issued by five or more such banks shall not exceed 
four hundred dollars. 

Section 2. This act shall take effect upon its passage." 

The writing of policies of insurance and annuity contracts is a business 
so clothed with pubhc interest that it may be regulated by the Legis- 
lature for the public welfare, under its general police power, in a wide 
variety of ways. Almost all such reasonable regulations interfere with 
perfect freedom of the exercise of the right to make contracts, both as 
to the individual insured and the insurer, but as a proper exercise of the 
police power such interference does not violate the constitutional guaran- 
tees of State constitutions or of the Federal Constitution. Such regula- 
tions, to be constitutional, must not be arbitrary or unreasonable. 

The doing of an insurance business by savings banks was first author- 
ized by the Legislature in 1907, and the manner and mode of conducting 
such business by these banks is regulated and Hmited in a wide variety 
of ways by enactments now embodied in G. L., c. 178, as amended. The 
system laid down by the Legislature heretofore for the conduct of the 
business by these banks differs in many particulars from that under 
which insurance companies are permitted to carry on business under 
the provisions of G. L., c. 175, as amended. 

Among other regulations provided in G. L., c. 178, as amended, for 
the conduct of the business by savings banks, section 10 of said chapter 
now provides the following : — 

"No savings and insurance bank shall write any policy binding it to 
pay more than one thousand dollars, exclusive of dividends or profits, 
upon the death of any one person, except for such amount, if any, as it 
may be bound to pay upon the death of such person under an employees' 
group policy, nor any annuity contract binding it to pay in any one year 
more than two hundred dollars, exclusive of dividends or profits." 

The existing law thus limits the amount which any savings bank may 
hazard upon a single risk, either by way of a policy of insurance or a 
contract of annuity. The proposed bill limits the amount of the hazard 
which the savings banks engaged in this business, as an entire group, 
may venture upon a single risk. If such limitation be necessary to pro- 
tect the interests of those seeking this particular form of insurance, as 
well as the insurers, as a provision making for the solvency of the in- 
surers and the safety of the funds to which the insureds are to look for 
payment upon their contracts, it could not well be said that a legislative 
measure establishing such a hmitation was unreasonable or arbitrary. 
The determination of the amount of such hmitation best adapted to 
secure such solvency, if fixed by the sound judgment of the Legislature 
at either of the figures mentioned in your communication, could not, in 
view of the exercise of the judgment of the Legislature, be said to be 
arbitrary or unreasonable. 

Whether such limitations as are created by the proposed bill are reason- 
able for accompHshing the purpose which I have above referred to is for 
the determination of the General Court. If it so determines, I cannot 
say that such a bill, if enacted into law, would be unconstitutional. 
Very truly yours, 

Joseph E. Warner, Attorney General 



P.D. 12. 65 

Retirement System — Penal Institutions Officer — Duration of Service. 

The Commissioner of Correction may retire and place on the pension 
roll a penal institutions officer entitled to such retirement under 
G. L., c. 32, § 46. 

Feb. 23, 1929. 

Mr. Edward C. R. Bagley, Deputy Commissioner of Correction. 

Dear Sir: — You have sent me the following communication: — 

"I respectfully refer you to an opinion rendered by a former Attorney 
General, dated May 12, 1919, relative to the retirement status of a man 
employed at the Massachusetts Reformatory. This man will attain the 
age of seventy on January 27, 1929, and has been advised by the Board 
of Retirement that he must leave the service of the Commonwealth on 
that date. 

In the light of the opinion above referred to will j^ou be kind enough to 
advise me whether this man is entitled to be retired under the prison 
officers' retirement law, G. L., c. 32, § 46, or is ineligible to any retire- 
ment allowance, as assumed by the Board of Retirement." 

You have also submitted to me certain correspondence, from which I 
assume the facts to be that the person referred to in your letter was first 
employed at one of the State penal institutions from June 1, 1890, until 
January 5, 1907 ; that he then resigned and was absent from the service 
until re-employed in such an institution on May 10, 1915, and that when 
so re-employed in 1915 he was over fifty-five j'^ears of age. 

There can be no question but that the person referred to has been, 
since attaining the age of sixty-five, eligible to retirement from the service 
and to have his name placed upon a pension roll, with the approval of 
the Governor and Council, under the provisions of G. L., c. 32, §§ 46^8, 
as amended, which relate peculiar^ to prison employees. It is specifi- 
cally provided in section 47 that in computing the twenty 3-ears of service 
for the Commonwealth, which render a prison employee eligible to the 
pension mentioned in section 46, all the time which he has served in the 
penal institutions of the State shall be counted, irrespective of whether 
such service was continuous or not. An opinion of one of my prede- 
cessors in office, rendered to you May 12, 1919 (not published), relative 
to a similar case, makes this plain; but such opinion did not hold that 
because an employee or officer of a penal institution was eligible for re- 
tirement under the particular provisions now embodied in G. L., c. 32, 
_§§ 46-48 • (formerly St. 1908, c. 601, as amended), he was also entitled, 
in addition to such pension, to receive a retiring allowance, or that he 
was eHgible to be a member of the State Retirement Association if over 
fifty-five years of age at the time of his last re-entry into the service of 
the Commonwealth. Moreover, it has been held in an opinion of a 
former Attorney General (V Op; Atty. Gen. 456) that where an em- 
ployee has ceased by voluntary retirement to hold a position in the serv- 
ice of the State and subsequently re-enters it, his term of service, for the 
purposes of obtaining the benefits of the retirement system, begins with 
the date of his re-employment, and that, as the continuity of his service 
has been broken by his resignation, the term of his prior employment is 
to be disregarded by the Board of Retirement. 

The first plan for a comprehensive retirement system for the em- 



66 P.D. 12. 

ployees of the Commonwealth was enacted by St. 1911, c. 532, and after 
a series of amendments it was consohdated in G. L., c. 32, with other 
provisions relative to pension systems for certain classes of employees, 
enacted by other statutes, among which were the provisions for em- 
ployees in penal institutions, contained in St. 1908, c. 601, as amended. 
Employees such as those in penal institutions, as the law now stands, 
are, when eligible to the benefits of the State retirement law, given the 
advantage of an option between retiring under the general provisions of 
the retirement law or under those applicable to their particular class. 
V Op. Atty. Gen. 634. Their eligibility to the advantages of the general 
retirement system is governed by the provisions applicable directly 
thereto, and particular provisions of those sections of the statutes which 
relate to ehgibility to special pension funds do not control or govern 
their eligibility to the benefits of the general retirement system. 

The person to whom you refer in your letter re-entered the service of 
the Commonwealth in its penal institutions in 1915. He was then over 
fifty-five years of age. Having attained such age he was not then ehgible 
to membership in the State Retirement Association or entitled to the 
benefits of the retirement system in that respect. St. 1911, c. 532, § 3 (2), 
as amended, now G. L., c. 32, § 2 (2) and (3). He was, however, as I 
have pointed out, eligible to the benefits of the pension provided for 
penal institution employees by St. 1911, c. 608, now G. L., c. 32, §§ 46-48. 

He was also subject to the provisions of St. 1911, c. 532, § 3, as 
amended, now G. L., c. 32, § 2 (2), to the effect that "no such person 
(employee) shall remain in the service of the Commonwealth after reach- 
ing the age of seventy." 

This provision of chapter 32 applies, as part of the comprehensive 
scheme for the regulation of the retirement of persons in the service of 
the Commonwealth, to all such persons ahke, irrespective of whether or 
not they are entitled to the advantage of a pension. 

The provisions of G. L., c. 32, are intended to, and do, forbid a person 
employed by the Commonwealth from remaining in the service after 
reaching the age of seventy (see opinion rendered the Commissioner of 
Pubhc Works March 19, 1921, not published), with the exception of 
those persons mentioned in G. L., c. 32, § 2 (3), namely, an "officer 
elected by popular vote" or "any employee who is or will be entitled to 
a non-contributory pension from the commonwealth." Admittedly, the 
person in question does not fall within the exception extended to elective 
officers nor does he fall within the second exception. It cannot be said 
that under the provisions of G. L., c. 32, §§ 46-48, "he is or will be 
entitled to a non-contributory pension." The pension provided for by 
section 46 is non-contributory, but it cannot presently be said that he 
"either is or will be entitled" thereto within the meaning of said 
chapter 32, section 2 (3). It is optional with the Commissioner of Cor- 
rection to retire him from service and place him upon a pension roll, 
and the act of the Commissioner in this respect is subject to the approval 
of the Governor and Council (see V Op. Atty. Gen. 634). 
Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 67 

Motor Vehicles and Trailers — Length — Permits. 

No commercial motor vehicle with an extreme over-all length of twenty- 
eight feet may be operated upon a State highway without a special 
permit. 

Groups of vehicles having altogether an over-all length of twenty-eight 
feet do not require a special permit. 

Feb. 23, 1929. 
Hon. Frank E. Lyman, Commissioner of Public Works. 

Dear Sir: — You have directed my attention to G. L., c. 90, § 19, 
which, as finally amended by St. 1927, c. 72, reads as follows: — 

''No commercial motor vehicle, motor truck or trailer, the outside 
width of which is more than ninety-six inches or the extreme over-all 
length of which exceeds twenty-eight feet, shall be operated on any way 
without a special permit so to operate from the board or officer having 
charge of such way, or, in case of a state highway or a way determined 
by the department of pubhc works to be a through route, from the com- 
missioner of pubhc works. The aforesaid dimensions of width and length 
shall be inclusive of the load." 

You have asked my opinion as to its interpretation in connection with 
the issuing of the special permits. 

Gen. St. 1919, c. 252, §§2 and 3, which was the original act deahng 
with the subject matter of said section 19; was as follows: — 

"Section 2. The Massachusetts highway commission, as to state 
highways, and the county commissioners, as to county highways, may 
likewise grant permits under this act. 

Section 3. Any person violating any provision of this act, or of the 
terms of any permit granted hereunder, shall be punished by a fine of 
not more than one hundred dollars for each offence." 

The provisions of said Gen. St. 1919, c. 252, were originally embraced 
in G. L., c. 90, § 19, in substantially the same terms, in the following 
words : — 

"No commercial motor vehicle, motor truck or trailer, the outside 
width of which is more than ninety-six inches or the extreme over-all 
length of which exceeds twenty-eight feet, shall be operated on any way, 
except that such a vehicle exceeding twenty-eight feet may be operated 
when a special permit so to operate is secured from the superintendent 
of streets, selectmen, or local authorities, having charge of the repair 
and maintenance of highways in the several cities and towns, or in the 
case of state highways, from the commissioner of pubhc works, and in 
the case of other highways, from the county commissioners having juris- 
diction thereof; provided, that the combined length of such a vehicle 
and trailer or trailers, or of two or more such vehicles fastened together 
in series, with or without trailers, may exceed twenty-eight feet, but in 
no event shall such combined length exceed sixty-five feet. All of the 
aforesaid dimensions shall be inclusive of the load." 

The words of the proviso as contained in said section 19 were omitted 
when it was amended by St. 1925, c. 180, § 1, which read as follows: — 

"Section 1. Chapter ninety of the General Laws is hereby amended 
by striking out section nineteen and inserting in place thereof the fol- 



68 P.D. 12. 

lowing: — Section 19. No commercial motor vehicle, motor truck or 
trailer, the outside width of which is more than ninety-six inches, shall 
be operated on any Avay. No commercial motor vehicle, motor truck or 
trailer, the extreme over-all length of which exceeds twenty-eight feet, 
shall be operated on any way without a special permit so to operate 
from the board or officer having charge of such way, or, in case of a way 
determined by the department of public works to be a through route, 
from the commissioner of public works. The aforesaid dimensions of 
width and length shall be inclusive of the load." 

Nor have the words of the proviso been restored by subsequent 
legislation. 

It follows, then, from the wording of G. L., c. 90, § 19, as it noAv stands 
amended, that any commercial motor vehicle, motor truck or trailer, the 
extreme over-all length of which exceeds twenty-eight feet, may not be 
operated, without a special permit from you as Commissioner of Pubhc 
Works, upon a State highway or a way determined to be a through 
route, and the necessity for such a permit is not removed by the fact 
that such a vehicle is fastened together with others, irrespective of what 
the combined length of all the vehicles may be. Nor does a single vehicle, 
of the types mentioned in the statute, which is not itself over twenty- 
eight feet in length require a special permit for operation even if it be 
fastened together with other vehicles, all of which together have a 
length of over twenty-eight feet. Nor does a group of vehicles fastened 
together, none of the units of which exceeds twenty-eight feet in length, 
require a special permit. 

Very truly yours, 

Joseph E. Waener, Attorney General. 



Fire Marshal — Licenses and Permits — City Council. 

Licenses and permits under G. L., c. 148, § 31, as amended, and Hcenses 
under G. L., c. 148, § 14, as amended, may be issued by a head of 
the fire department and a city council, jointly, if they have been 
designated for that purpose by the Fire Marshal. 

Feb. 25, 1929. 

Gen. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir : — You have asked my opinion relative to delegation of 
authority by the Fire Marshal to issue hcenses and permits under G. L., 
c. 148, § 31, as amended, and to issue Hcenses under G. L., c. 148, § 14, 
as amended. Your question reads as follows: — 

"The question upon which your opinion is desired is: Can a designation 
be made by the Marshal including the city council and the head of the 
fire department to grant such licenses, so that one document only will be 
required?" 

Section 14 provides for the issuance of permits by the Marshal "or by 
some official designated by him for that purpose." Section 31 provides 
for delegation by the Marshal to "the head of the fire department or to 
any other designated officer" in a city or town in the metropolitan 
district. 

The terms "official" and "officer," as used in these two sections, are, 
in my opinion, to be construed as including the plural. See G. L., c. 4, 



P.D. 12. 69 

§ 6, cl. 4th. In Foss v. Wexler, 242 Mass. 277, the delegation was to the 
mayor and the board of street commissioners, and no question was raised 
on this point. 

Nor do I think that the use of the word "or" in section 31 exckides 
the possibihty of delegation to a head of the fire department and some 
other official jointly. The word "or" may be given a conjunctive as 
well as disjunctive meaning, and should be so construed here, for cer- 
tainly it was not intended that, although a delegation might be made 
to any two other officials jointly, the head of the fire department could 
be designated only in the event that he should, act alone. Nor could it 
have been intended that the power to make a joint delegation, including 
the head of the fire department, should be different under section 31 
from what it is under section 14. 

I am not certain what is meant by the last part of your question, viz. : 
"so that one document only will be required." If by "document" you 
refer to notice of the designation, I would say that written notice of the 
designation must be given to the head of the fire department and also 
to the city council. If you refer to the license or permit issued by the 
officials designated, there not only may be, but should be, only one docu- 
ment issued by the head of the fire department and the city council 
jointly. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Food — Fish — Cold Storage — Adveriisinq. 

The provisions of G. L., c. 94, § 78, as to advertisements, do not require 
that cold storage fish shall be designated as such, but they do forbid 
representation of the commodity as fresh fish. 

The word "fish," as used in St. 1928, c. 40, § 1, includes all forms of 
fish and shellfish and Crustacea. 

Feb. 25, 1929. 

Hon. William A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You have asked my opinion as to whether or not, in 
advertising or other forms of publicity, cold storage fish must be so 
designated as to distinguish it from fresh fish. 

G. L., c. 94, § 78, is as follows: — 

"No person shall sell, offer or expose for sale fish which have been held 
in cold storage, without notice to purchasers that such fish have been so 
held, nor without the conspicuous display of a sign marked ' Cold Storage 
Fish'; nor shall any person represent or advertise or sell cold storage 
fish as fresh fish." 

G. L., c. 94, § 74, as amended by St. 1922, c. 17, § 1, provides, in part, 
as follows : — 

"All fresh food fish before being offered for sale or placed in cold storage 
shall be graded as follows : — 

No person shall represent, sell, offer for sale or advertise fresh or frozen 
fish of any grade under any but the truthful and correct name and grade 
or corresponding term for such fish." 

The words "advertising or other forms of publicity," as used in your 
question, may be somewhat ambiguous, and you may mean to include in 



70 P.D. 12. 

these words some specific case in which it would be possible to construe 
the form of publicity as an offer; in which case, of course, notice that the 
fish offered has been held in cold storage is required by the statute. An 
advertisement, however, in the sense in which that word is commonly 
used, will usually be construed by the courts, not as an offer, but as an 
invitation for offers. See Williston on Contracts, § 27. And, in anj^ event, 
it is clear that the word "advertise," as used in the two sections of ther 
statute above quoted, is used as distinct from "offer." Assuming, then, 
as I must, that your question refers only to advertisements or forms of 
publicity which are not in law offers, I answer your question in the 
negative. 

The requirement of section 78 as to advertisements is merely that cold 
storage fish shall not be represented as fresh fish. An advertisement of 
fish, without more, is not a representation that it is fresh fish', as dis- 
tinguished from cold storage fish. Nor is there anything in section 74 
which leads to a different result. The words "name" and "grade" have 
no reference, as the preceding part of section 74 clearly shows, to any 
distinction between fresh and cold storage fish. 

You also ask my opinion as to whether or not the word "fish," as used 
in St. 1928, c. 40, § 1, includes all forms of fish, such as fresh, frozen, 
cold storage, salted, pickled or otherwise preserved, and all shellfish and 
Crustacea. Said section, amending G. L., c. 94, § 82, makes it criminal 
to sell for food purposes fish which is unwholesome or unfit for food. I 
think that shellfish and Crustacea were intended to be, and well may be, 
included under the term "fish" as used in this statute. Provisions relat- 
ing to these types are contained in G. L., c. 130, entitled "Fisheries." 

See also Weston v. Sam.psoji, 8 Gush. 347. Nor do I think that this 
statute makes any distinction as between fresh fish and fish that is salted, 
pickled or preserved. The purpose of the statute, namely, to guard against 
the sale of impure food, applies to all equally. According!}^, I answer 
your second question in the affirmative. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



Trust Company — Increase of Capital Stock — Stockholder. 

Stockholders of trust companies may, under G. L., c. 172, § 18, as 
amended, and G. L., c. 156, §§ 41 and 44, authorize an increase of 
capital stock under such terms and in such manner as the directors 
or officers may determine. 

^Iarch 22, 1929. 

Hon. Roy A. Hovey, Commissioner of Banks. 

Dear Sir: — You have asked my opinion as to whether stockholders 
of a trust company have power under the terms of G. L., c. 172, § 18, as 
amended, to authorize its board of directors or officers to dispose of an 
increase of capital stock under such terms and in such manner as the 
board or officers may determine. 

G. L., c. 172, § 18, as amended by St. 1926, c. 239, as it relates to the 
increase of capital stock by trust companies, reads as follows: — 

"Any such corporation maj^, subject to the approval of the commis- 
sioner, increase its capital stock in the manner provided by sections 
forty-one and forty-four of chapter one hundred and fifty-six." 



P.D. 12. 71 

G. L., c. 156, §§ 41 and 44, read as follows: — 

"Section 41. Every corporation may, at a meeting diil}^ called for 
the purpose, by the vote of a majority of all its stock, or, if two or more 
classes of stock have been issued, of a majority of each class outstanding 
and entitled to vote, authorize an increase or a reduction of its capital 
-stock and determine the terms and manner of the disposition of such 
increased stock, or authorize such terms and manner of disposition to be 
determined in whole or in part by the board of directors or officers of 
the corporation, may authorize a change of the location of its principal 
office or place of business in this commonwealth or a change of the par 
value of the shares of its capital stock, or may authorize proceedings for 
its dissolution under section fifty of chapter one hundred and fifty-five. 
Such injcreased stock may in whole or in part be disposed of without 
being offered to the stockholders. Any corporation having authorized 
shares with par value may, at a meeting duly called for the purpose, by 
the vote of a majority of all its stock, or, if two or more classes of stock 
have been issued, of a majority of each class outstanding and entitled 
to vote, including in any event a majorit}^ of the outstanding stock of 
each class affected, change such shares or any class thereof into an equal 
or greater number of shares without par value, or provide for the ex- 
change thereof pro rata for an equal or greater number of shares without 
par value ; provided, that the preferences, voting powers, restrictions and 
qualifications of the outstanding shares so changed or exchanged shall 
not be otherwise impaired or diminished without the consent of the 
holders thereof. 

Section 44. If an increase in the total number of the capital stock 
of any corporation shall have been authorized by vote of its stockholders 
in accordance with section forty-one, the articles of amendment shall 
also set forth — (a) the total amount of capital stock already authorized ; 
(6) the amount of stock already issued for cash payable bj^ instalments 
and the amount paid thereon; and the amount of full paid stock already 
issued for cash, property, services or expenses; (c) the amount of addi- 
tional stock authorized; (d) the amount of such stock to be issued for 
cash, property, services or expenses, respectively; (e) a description of 
said property and a statement of the nature of said services or expenses, 
in the manner required by section ten." 

The statute which first provided for increase of capital stock of trust com- 
panies, St. 1905, c. 189, was couched in the following language: — 

" A trust companj^ maj^ subject to the approval of the board of com- 
missioners of savings banks, increase its capital stock to the maximum 
amount allowed by section five of chapter one hundred and sixteen of the 
Revised Laws, in the manner provided for the increase of capital stock 
of business corporations under the provisions of chapter four hundred 
and thirty-seven of the acts of the year nineteen hundred and three, 
and of acts in amendment thereof, relative to the increase of capital 
stock; provided, hoivever, that no such stock shall be issued by anj^ trust 
compan}^ until the par value thereof shall be fully paid in in cash." 

Provision is made in the General Laws for a mode of disposition of 
increased capital stock with reference to corporations not subject to 
G. L., c. 156, when no other provision is made by law with relation 
thereto. This is contained in G. L., c. 155, § 20, and reads as follows: — 



72 P.D. 12. 

"If a corporation, not subject to chapter one hundred and fifty-six, 
increases its capital stock and no other provision therefor is made by law, 
its directors shall forthwith give written notice thereof to each stock- 
holder who was such at the date of the vote to increase, stating the 
amount of the increase, the number of shares or fractions of shares of 
the new stock which such stockholder is entitled to take, and the time, 
not less than thirty daj's after the date of such vote, within which such 
new stock shall be taken; and, within said time, each stockholder may 
take at par his proportion of such new shares, according to the number of 
his shares at the date of such vote to increase. If, at the expiration of 
said time, any shares remain untaken, the directors shall sell them by 
public auction for the benefit of the corporation at not less than the par 
value thereof." 

I am of the opinion that it was the intent of the Legislature, in pro- 
viding by G. L., c. 172, § 18, as amended, that a trust company might 
increase its capital stock "in the manner provided by" G. L., c. 156, 
§§ 41 and 44, to make applicable to such company the provisions of said 
sections 41 and 44, not only as they refer directly to the method of in- 
creasing stock but as they refer to the manner of distributing or disposing 
of the same. The terms and manner of disposition are such an integral 
part of an increase of stock that a reference to increase of capital stock 
in the "manner provided" in sections 41 and 44 would seem, in the ordi- 
nary use of words, to include both, as set out in the designated sections. 
It follows that the terms of G. L., c. 155, § 20, are not applicable to in- 
crease of stock by a trust company, for which provision is made by law 
under said G. L., c. 156, §§ 41 and 44, incorporated by reference in G. L., 
c. 172, § 18, as amended. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Division of Animal Industry — Rules — Poultry — Animals. 

G. L., c. 129, § 2, does not give authority to the Division of Animal 
Industry to make rules as to giving certificates as to the condition 
of poultry or animals. 

March 27, 1929. 

Hon. William A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You ask my opinion as to the validity of certain pro- 
posed rules of the Division of Animal Industry, one set relating to a 
disease of poultry known as salmonella pullorum, and the other to a 
disease of cattle known as Bang bacillus. 

The proposed rules provide, in substance, that if an owner elects to 
submit his flock or herd to certain blood tests in a laboratory approved 
by the Director, and if such tests show freedom from the disease in ques- 
tion, and if the owner further observes certain requirements as to care 
and maintenance, the Division will issue to him a certificate that his 
flock or herd is free of the disease in question. 

The power of the Division to make rules is set forth in G. L., c. 129, 
§ 2, as follows : — 

"The director may make and enforce reasonable orders, rules and 
regulations relative to the following: the sanitary condition of neat cat- 
tle, other ruminants and swine and of places where such animals are kept; 



P.D. 12. 73 

the prevention, suppression and extirpation of contagious diseases of 
domestic animals; the inspection, examination, quarantine, care and 
treatment or destruction of domestic animals affected with or which have 
been exposed to contagious disease, the burial or other disposal of their 
carcasses, and the cleansing and disinfection of places where contagion 
exists or has existed. No rules or regulations shall take effect until 
approved by the governor and council." 

Nothing therein confers power to issue certificates, and such power 
cannot, in my opinion, be implied. The Legislature has specifically pro- 
vided in section 20 that inspectors shall issue certificates in certain cases, 
but section 20 gives no authority for the procedure proposed. Moreover, 
it would appear that under the proposed rules the Division would have 
no first-hand knowledge of the fact which it undertook to certify. The 
blood tests are not made by the Division, nor is any provision made for 
the Division to ascertain the existence of the other facts which are sup- 
posed to exist in order to make a certificate proper. 

As to the proposed set of rules relating to poultry, there is, in my 
opinion, an additional reason why they are invalid. The words "domes- 
tic animals," as used in G. L., c. 129, § 2, do not, I think, include poultry. 
The Division of Animal Industrj^ succeeded to the powers of the Depart- 
ment of Animal Industry (Gen. St. 1919, c. 350, § 40), which succeeded 
to the powers of the Board of Cattle Commissioners and the Cattle 
Bureau (St. 1912, c. 608). The Cattle Bureau was given the powers of 
the Board of Cattle Commissioners (St. 1902, c. 116). The power of the 
Board of Cattle Commissioners to make rules is expressed in P. S., c. 90, 
§ 13, as follows: — 

"When such commissioners make and pubhsh any regulations con- 
cerning the extirpation, cure, or treatment of animals infected with or 
which have been exposed to any contagious disease, such regulations shall 
supersede those made by mayors and aldermen and selectmen; and 
mayors and aldermen and selectmen shall carry out and enforce all orders 
and directions of the commissioners to them directed." 

The authority here given to the Cattle Commissioners is over the same 
subject matter referred to in section 1 of said chapter 90, in the following 
words: "The mayor and aldermen of cities and the selectmen of towns, 
in case of the existence in this commonwealth of the disease called pleuro- 
pneumonia among cattle, or farcy or glanders among horses, or any other 
contagious or infectious disease among domestic animals, shall cause" 
the animals to be segregated, etc. It would seem that the term "domestic 
animals," as here used, was not intended to include poultry. This view 
is confirmed by the words of section 7, which provide that "they may 
cause every animal infected with any such disease, or which has been 
exposed thereto, to be forthwith branded upon the rump with the letter P ". 
There is nothing in subsequent statutes tending to show that the term 
"domestic animals" was intended to be given a new meaning which 
might confer on the Cattle Commissioners the power or duty of passing 
rules affecting poultry. This is further confirmed, moreover, by the 
failure to include any poultry disease in the list of contagious diseases 
enumerated in R. L., c. 90, § 28 (St. 1911, c. 6). 

Furthermore, it is to be noted that in a number of instances the Legis- 
lature has used the term "birds or poultry" in addition to "animals," so 
indicating that the word "animals" is not sufficiently inclusive. Thus in 
G. L., c. 180, § 2, "for encouraging the raising of choice breeds of domes- 



74 P.D. 12. 

tic animals and poultry"; in G. L., c. 131, § 2, ''preservation of birds 
and animals"; in G. L., c. 130, § 2, "the laws relating to fish, birds, 
mammals and game." I do not mean to intimate that there may not 
be statutes in which the word "animals" may be construed as including 
birds or poultry; but, in my opinion, it is not so to be construed in G. L., 
c. 129, § 2. 

Yours very truly, 

Joseph E. Warner, Attorney General. 



Public Safety — Compressed Air Tank — Operation of Pneumatic 
Machinery. 

A compressed air tank used merely for starting in initial motion one 
piston of a Diesel engine is comprehended within the meaning of 
G. L., c. 146, § 34, relative to tanks for the storing of compressed 
air. 

March 28, 1929. 
Gen. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You have asked my opinion upon the following matter: — 

"Whether a compressed air tank setting in initial motion one piston 
of a Diesel engine may be considered as operating pneumatic machinery 
as specified in the law." 

You have advised me of the following facts in connection therewith : — 

"The method of using the compressed air contained in the tank is as 
follows : 

For the purpose of starting the engine in the first instance, the com- 
pressed air contained in the tank is applied to a cylinder of the engine, 
compressing the air therein to a temperature of approximately 500 de- 
grees Fahrenheit. A portion of oil at this instant is injected into the 
cylinder, the heat igniting the oil and causing combustion and explosion. 
The expansion of this cylinder compresses the next in a similar manner, 
and so on. The tank is used for the sole purpose of starting the engine. 
This method has been used for more than twenty-five years, but not to 
any considerable extent until about 1914, since which time these engines 
and tanks have been gradually coming into considerable use in place of 
steam engines." 

The pertinent provisions of the statutes are as follows, G. L., c. 146, 
§34:- 

"No person shall install or use, or cause to be installed or used, any 
tank or other receptacle, except when attached to locomotives, street or 
railway cars, vessels or motor vehicles, for the storing of compressed air 
at any pressure exceeding fifty pounds per square inch, for use in operat- 
ing pneumatic machinery, unless the owner or user thereof shall hold a 
certificate of inspection issued by the division, certifying that the said 
tank or other receptacle has duly been inspected within two years, or 
unless the owner or user shall hold a pohcy of insurance upon the said 
tank or other receptacle issued by an insurance companj^ authorized to 
insure air tanks within the commonwealth, together with a certificate of 
inspection from an insurance inspector who holds a certificate of com- 
petency described in section sixty-two." 



P.D. 12. 75 

The Attorney General does not pass upon questions of fact, but if, as 
would appear from the statements in your letter, the motive power of 
the Diesel engine is not compressed air, the mere fact that compressed 
air from tanks is used in the initial process of starting the engine would, 
in my opinion, not be sufficient so that it could be said that a tank em- 
ployed solely for the purpose of furnishing compressed air for such start- 
ing purposes was a tank for the storing of compressed air "for use in 
operating pneumatic machinery," within the meaning of the statute. 
The mere starting of machinery whose motive power thereafter is not 
pneumatic cannot fairly be said to be comprehended bj'' the employment 
of the words "use in operating pneumatic machinery. ^^ The words "oper- 
ating" and "starting," as the former is used in the statute, are not synon- 
ymous. The intent of the Legislature, as expressed in the words of the 
statute, appears to be to provide for the adequate safeguarding of tanks 
storing compressed air which were to be used for something more than 
brief periods. 

Yours very truly, 

Joseph E. Warner, Attorney General. 



Constitutional Law — Water Supply — Cities. 

The Legislature may constitutionally redistribute the burdens assumed 
under an agreement between different cities relative to a water 
supply. 

April 11, 1929. 

Committee on Water Supply. 

Gentlemen: — You request my opinion as to whether House Bill No. 
932, entitled "An Act relative to water supply for the cities of Salem and 
Beverly," would, if enacted, be constitutional. 

St. 1913, c. 700, § 3, provides that the payment of certain expenses 
incurred in connection with a joint water supply for Salem and Beverly 
should be apportioned two-thirds and one-third. The proposed bill 
amends this section by changing the apportionment to three-fourths for 
Salem and one-fourth for Beverly. 

The argument that this proposed change is unconstitutional is based 
upon the contention, made in behalf of the city of Salem, that by action 
taken by the two cities under earlier statutes, which permitted Beverly 
to acquire a one-third interest in the water supply of Wenham Lake, a 
contract was created between the two cities which binds Beverly to 
bear one-third of the burden of providing and maintaining a joint water 
supply, and that the change proposed in the present bill impairs the 
obligation of that contract. 

By St. 1864, c. 268, Salem was authorized to take, and did take, for the 
purpose of a water supply, Wenham Pond, in Wenham and Beverly, and 
certain lands and water rights in connection therewith. By section 15 
of said act towns upon the line of works, including Beverly, were entitled 
to a reasonable use of the water upon paying an equitable compensation 
therefor. See also St. 1869, c. 380; St. 1877, c. 144. 

By St. 1885, c. 294, Beverly was authorized to supply itself with water, 
and for that purpose to draw directly from Wenham Pond so much of 
the waters thereof and of the waters which flow into and from the same 
"as it may require." By section 10 it was provided that upon the estab- 
hshment of independent works by Beverly, the town should pay to Salem 



76 P.D. 12. 

on(>-third of the expense theretofore sustained by Salem in connection with 
securing and preserving the water supply in Wenham Pond and also one- 
third of the expenses thereafter incurred by Salem at Beverly's request 
in securing and preserving the purity of the waters of said pond ; and upon 
the payment by Beverly of one-third of the expense theretofore incurred, 
Salem should record a declaration of trust in or concerning "said lands, 
water rights and easements," declaring that "one undivided third part 
of the same is held in trust" for Beverly, and that Beverly is entitled 
"to the beneficial enjoyment of said one undivided third part thereof." 
Beverly paid the one-third, and Salem in 1888 recorded the declaration 
of trust, as provided for by the statute (Essex Deeds, book 1217, page 128). 

By section 11 of said act of 1885, it was further provided that the town 
of Beverty may draw from said pond "such water as it may require," 
without compensation to the city of Salem; but that if for any reason 
the supply in said pond were "insufficient to supply the needs of said 
city and its inhabitants and of said town and its inhabitants," there- 
after, "so long as the supply remains insufficient as aforesaid, said town 
shall take from said pond only so much water as shall bear the same 
proportion to the water taken by said city from said pond as the number 
of inhabitants of said town bears to the number of the inhabitants of 
said city." 

By St. 1893, c. 364, Salem was authorized, for the purpose of providing 
an additional water supply for Salem and Beverly, to take certain addi- 
tional waters and to convey them into Wenham Lake; and by section 10 
it was provided that upon payment by Beverly of one-third of the ex- 
pense, Salem should record a declaration of trust, declaring that one 
undivided third thereof was held in trust for Beverly and that Beverly 
is entitled to the beneficial enjoyment of the same. It is my understand- 
ing that such taking was made, that Beverly made the payment and that 
Salem filed the declaration of trust. 

St. 1913, c. 700, created the Salem and Beverly Water Supply Board. 
By section 4 said board was authorized, for the purpose of providing for 
the supply for Salem and Beverly, to acquire waters from the Ipswich 
River, and to construct works and acquire other rights in connection 
therewith; and section 5 provided that such propertj^ and rights should 
vest in Salem and Beverly "as tenants in common in the proportion 
named in section three hereof" — i.e., in the proportion of two-thirds 
and one-third. Payment of expenses so incurred by the board was to be 
made from a fund, established by section 16, which was created from 
the proceeds of the issuance of bonds and notes by Salem and by Beverly 
as requested by the board, "provided, that at no time shall said city 
(Beverly) be requested to issue said bonds or notes to an amount greater 
or less than one-half the amount so requested in the case of the city of 
Salem" (§14). 

As to expenses incurred by the board in maintenance, care and opera- 
tion, it is provided by section 19 that these shall be paid by the respec- 
tive cities from current revenues derived from water rates or taxation, in 
the proportion named in section 3 — i.e., two-thirds and one-third, for a 
term of five years; but that every five years thereafter the board shall 
determine the proportion, subject to right of appeal to the Superior Court. 

Section 3 of said act of 1913, which the present bill aims to amend by 
changing the proportion from two-thirds and one-third to three-fourths 
and one-fourth, reads as follows: — 



P.D. 12. 77 

"All expenses, liabilities and damages incurred by said board in carry- 
ing out the purposes of this act shall be paid, except as hereinafter pro- 
vided, by said cities in the proportion of one third by the city of Beverly 
and two thirds by the city of Salem, and payment shall be made in the 
manner provided in section seventeen from the fund established by 
section sixteen hereof." 

The proposed amendment effects no change in the proportion of owner- 
ship in any property heretofore acquired, nor does it involve any read- 
justment of payments already made. Neither does it affect in an}^ way 
the existing liability of the two cities for care and maintenance, either of 
property now owned in common or hereafter to be acquired, for that is 
determined by section 19 of the act. The sole effect, therefore, of the 
proposed change would be to impose a different allocation of the expense 
in the event that the board shall hereafter acquire additional property 
or construct additional works, as, for instance, a new reservoir at Put- 
namville, to which you refer. 

If the Legislature decides that, as to this, justice requires a different 
apportionment of expense from that which has previously been applied 
in connection with the joint water supply of the two cities, I can see no 
constitutional objection to the enactment of a law to that effect. The 
fact that in the case of this proposed reservoir at Putnamville the water 
will presumably be drawn from there into Wenham Lake, does not, in 
my opinion, alter the case, especially since the right of the respective 
cities to draw water from Wenham Lake is not fixed by any apportion- 
ment, except in the unusual event of a shortage. (St. 1885, c. 294, § 11.) 
Under ordinary circumstances the right of the city of Beverly is to draw 
such water "as it may require" (St. 1885, c. 294, §§ 2 and 11), and the 
right of the city of Salem is no doubt the same. 

Moreover, the Legislature has very broad powers in making read- 
justments of the rights and property of municipal corporations. In 
Mount Hope Cemetery v. Boston, 158 Mass. 509, 521, the court said: — 
"Upon the division of counties, towns, school districts, public property 
with the public duty connected with it is often transferred from one 
public corporation to another public corporation." As the court in this 
case and in manj^ others points out, the question is very different from 
that involved where the rights of individuals or quasi-pubhc corporations 
are concerned. 

In Scituate v. Weymouth, 108 Mass. 126, 131, the court said: — "It was 
an exercise of the authority of the legislature to distribute public burdens 
and duties. It is clear that, under the same constitutional power, it had 
the right to change the law and redistribute these public burdens, if from 
a change of circumstances or other reason it deemed it just and proper 
so to do." 

See also Cambridge v. Lexington, 17 Pick. 222; Attorney General v. 
Cambridge, 16 Gray, 247; Turners Falls Fire District v. Millers Falls Water 
Supply District, 189 Mass. 265; City of Boston, petitioner, 221 Mass. 468; 
Opinion of the Justices, 234 Mass. 612, 616; Selectmen of Brookline, 
petitioners, 236 Mass. 260. 

Indeed, the Legislature, by the act of 1913 here under consideration, 
has by section 19 apparently made provision for changing the distribu- 
tion of the burden of care and maintenance from two-thirds and one- 
third to such proportion as the board should, after a five-year term, 



78 P.D. 12. 

decide to be proper; and the constitutionality of that provision seems 
not to have been questioned. 

I would suggest, however, that House Bill No. 932 seems inadequate 
to effect the change intended, for the reason that payments are to be 
made from the fund, and section 14 of said act of 1913 would still pro- 
vide that Beverly's contribution to the fund should be one-half that of 
Salem. If, therefore, the Legislature desires to change the allocation, 
section 14 and perhaps other sections of the act should be amended, in 
addition to section 3. 

You also ask whether the city of Salem now has the legal right to take 
an unlimited quantity of water from Wenham Lake, which would prevent 
the city of Beverly from taking one-third of the water of said lake for 
water supply purposes. The answer to this question depends upon 
whether Beverly requires one-third of the water. As already stated, 
either city has the right to take as much as it requires, except in the event 
of a shortage, when the right is limited as provided in St. 1885, c. 294, § 11. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Charitable Trust Funds — Cy Pres. 

An act is an unconstitutional invasion by the Legislature of the judicial 
function if it attempts to alter a trust agreement relative to the appli- 
cation of funds for a charitable purpose. 

April 11, 1929. 

J\Ir. Elmer L. McCulloch, House Chairman, Committee on Towns. 

Dear Sir : — You have asked my opinion as to whether House Bill 
No. 737 would, if enacted into law, be constitutional. The act authorizes 
the Trustees of the School Fund in the Town of Hopkinton, a corporation 
organized under the provisions of an act approved June 17, 1820, to 
transfer and convey all its property to the town of Hopkinton, which, 
acting through its school committee, shall receive and apply said funds 
upon the same trusts as those upon which said trust funds and property 
are now held. The act further provides that the corporation shall there- 
upon be dissolved. 

The act of 1820 creates the present trustees as a corporation for the 
purpose of holding and applying certain funds for school purposes. Those 
funds were apparently originally provided by certain public spirited in- 
habitants interested in the schools of the town, and the act of 1820 
created a method of administering the fund, which method I assume to 
have been in conformity with the donors' wishes. The persons interested 
in the present act were not able definitely to trace the original source 
and history of this fund, and a somewhat limited investigation by this 
office has not aided materially. The question is therefore treated as if 
there was, prior to 1820, a gift for charitable uses to be administered for 
the purposes and in the manner described by the act of 1820. 

If the act is unconstitutional, it is because of one or more of the following 
reasons : — 

1. It impairs the obligation of the contract between the State and the 
corporation. 

2. It impairs the obligation of the contract between the corporation 
and the donor or donors of the fund. 

3. It is an attempted exercise of the judicial power by the Legislature. 



P.D. 12. 79 

1. The Legislature may not alter or repeal the charter of a corporation 
issued prior to 1831 without' its consent. The present act, however, is 
dependent upon the assent of the corporation, and therefore cannot be 
said to be objectionable on the first ground. 

2. It has repeatedly been held that a gift to a charitable corporation 
constitutes a contract between the corporation and the donor, and that 
any act impairing this agreement violates the Constitution of the United 
States. It is very probable that this act, dissolving the corporation by 
whom the trust is administered and causing the funds to be turned over 
to the town, may be contrary to the wishes and intent of the donor. It 
is not unlikely that the donor intended and desired that the management 
of the fund should be left in the hands of private persons rather than 
public officers, who might be influenced by political and personal motives. 
Assuming that the act of 1820 expresses the intent of the donor or donors 
of this fund, I am of the opinion that the constitutionalit}^ of this act 
would be open to grave doubt upon this ground. 

3. Any material change in the objects of a charity or the agents by 
whom it is to be administered must be made by the courts, and then 
only if the original purposes are impossible or impracticable; further, 
the court must also find a dominant or general charitable intent on the 
part of the donor which is consistent with the contemplated changes. 
This action on the part of the court is generally referred to as the applica- 
tion of the cy-pres doctrine, and is exclusively a judicial function. Gary 
Library v. Bliss, 151 Mass. 364; Opinion of the Justices, 237 Mass. 
613, 617. 

The Legislature has a somewhat vaguely defined power over charitable 
trusts held by municipalities, and may authorize the conversion of real 
estate into personalty in certain cases, but beyond this, action in any 
given case which alters the original gift must be had by the judicial de- 
partment. The court, in the case of Ware v. Fitchburg, 200 ]\Iass. 61, 
decided that the Legislature had power to determine by statute who 
should be the agent of the city to administer a charitable fund left to it ; 
the case does not hold that the Legislature may change the trustee or 
terminate a charitable corporation, and no case has come to my attention 
where this was properly done by the Legislature. 

It follows that the act, in so far as it attempts to alter the trust agree- 
ment, is an unconstitutional invasion by the Legislature of an exclusively 
judicial function. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Public Health — Local Board of Health — Inspector — Appointment. 

A city manager, in lieu of a mayor, has the duty to nominate an inspector 
of slaughtering to the Department of Public Health, but the approval 
of such nomination by the Department alone constitutes the appoint- 
ment of the person so nominated. 

April 18, 1929. 

Dr. George H. Bigelow, Commissioner of Public Health. 

Dear Sir : — You have asked my opinion upon the following ques- 
tion : — 

"Will you kindly inform me whether or not the city charter of Fall 
River removes from the board of health of Fall River the right to make a 



so P.D. 12. 

iiouiination to tliis Department of a person for the position of slaughter- 
ing inspector, and, after such nominee has been approved, the right to 
make the appointment?" 

You have advised me in connection with your inquiry that you have 
received the following communication from the city manager of Fall 
River: — 

"April 6, 1929. 

George H. Bigelow^ M.D., Commissioner of Public Health, State House, 
Boston, Massachusetts. 

Dear Sir : — The local board of health has recommended the appoint- 
ment of Edward F. Carey, V.S.. as inspector of slaughtering for the city 
of Fall River. 

I do hereby notify you that under the present cit}^ charter it is manda- 
tory for all appointments to be made by the city manager. Therefore I 
have on this date appointed Edward F. Carey, V.S., to said position. 
Respectfully yours, 

Edward F. Harrington, 

City Manager J' 

The government of the city of Fall River is now carried on under 
Plan D, as set forth in G. L., c. 43, §§ 79-92. Under this plan it is pro- 
vided that there shall be a "city manager" (§ 89), and he is given the 
authorit3% among other things, to "appoint and remove all heads of 
departments, superintendents and other employees of the city" (§ 90). 

G. L., c. 43, §§ 79-92, providing for a special plan of city government, 
were not intended by the Legislature to override other existing provisions 
of the General Laws relative to appointments. 

G. L., c. 129, § 15, provides as follows: — 

"The mayor in cities, except Boston, and the selectmen in towns shall 
annually, in March, nominate one or more inspectors of animals, and 
before April first shall send to the director the name, address and occu- 
pation of each nominee. Such nominee shall not be appointed until 
approved by the director. In cities at least one such inspector shall be 
a registered veterinary surgeon." 

As has been said with relation to animal inspectors generally, in an 
opinion given to the Commissioner of Conservation by my immediate 
predecessor in office (Attorney General's Report, 1928, pp. 69, 70): — 

"Section 15 places an affirmative duty upon mayors and selectmen to 
nominate inspectors, and provides that the nominee shall not be appointed 
until approved by the Director of Animal Industry." 

Approval of nominations of such inspectors as are termed inspectors of 
slaughtering rests with the Department of Pubhc Health instead of with 
the said Director, by virtue of the terms of G. L., c. 94, § 128, which are 
as follows : — 

"For the purposes of sections one hundred and nineteen, one hundred 
and twenty-five to one hundred and twenty-seven, inclusive, and one 
hundred and forty-seven, said inspectors shall be appointed and com- 
pensated, and may be removed, in the manner provided for inspectors 
of animals, under sections fifteen to seventeen, inclusive, of chapter one 
hundred and twenty-nine, except that in respect to such first named 
inspectors, local boards of health and the department of public health 



P.D. 12. SI 

shall perform the duties and exercise the authority imposed by said 
sections upon the aldermen or selectmen and upon the director of animal 
industry, respectively, as to inspectors of animals." 

"First named inspectors," in said section, as appears by reference to 
the earlier sections of the same statute, are what are commonly termed 
inspectors of slaughtering, and as to them the Department of Public 
Health exercises a power of approving their nominations similar to that 
given to the Director with relation to other inspectors. 

G. L., c. 94, § 126, refers to "an inspector appointed by the local board 
of health" as one who performs duties with relation to slaughtering. 
This may give rise to some confusion, which appears to result from the 
codification of the General Laws in 1921. Prior to such codification 
R. L., c. 90, § 12, had provided that "the mayor and aldermen in cities" 
should nominate inspectors of slaughtering. As the local boards of 
health were given authority to perform the duties of aldermen, they 
exercised a part, at least, in the power to appoint such inspectors. As 
the laws stand since the enactment of the General Laws, the power to 
nominate such inspectors is vested by said G. L., c. 129, § 15, in the 
mayors of cities. 

Although the power of appointing the employees of cities under Plan D 
(G. L., c. 43, §§ 90, 91), has been taken from the mayor and vested in 
the city manager, there is not such repugnancy between G. L., c. 43, 
§§ 90 and 91, and G. L., c. 129, § 15, as works an implied repeal of the 
latter section or renders it inapplicable to the cities operating under said 
plan. 

Although it is true that the mode of appointing inspectors has been 
transferred by said Plan D from the mayor to the manager, yet this 
difference does not involve a material variation from the procedure out- 
lined in G. L., c. 129, § 15. The duty now rests upon a city manager, in 
lieu of a mayor, to make a nomination of an inspector of slaughtering to 
the Department of Public Health. Even though the naming of a person 
for such a position be called an appointment by the city manager, it is in 
effect only a nomination and is to be treated as such, and is subject to 
the approval of the Department. When the Department's approval has 
been given to the appointment of the person named, then, and not before 
then, the appointment msiy be validly made by the city manager. See 
Attorney General's Report, 1927, p. 155. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



Civil Service — Labor Service — Rules. 

The Commissioner of Civil Service is bound to provide rules for the 
registration and certification of laborers in Springfield, and these 
rules do not need to be approved by the municipality. 

April 18, 1929. 

Hon. Elliot H. Goodwin, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion upon the three following 
questions : — 

" (a) Is the application of the rules governing the laboi- service, as 



82 P.D. 12. 

established by the Commission, with the approval of the Governor and 
Council, mandatory for the city of Springfield? 

(6) If not, is action required by the Civil Service Commission in fram- 
ing a new rule to be submitted to the Governor and Council? 

(c) Is such action in any way subject to consideration or approval by 
the authorities of the city of Springfield? " 

G. L., c. 31, § 3, provides: — 

"The board shall, subject to the approval of the governor and council, 
from time to time make rules and regulations which shall regulate the 
selection of persons to fill appointive positions . . . and, except as other- 
wise provided in section forty-seven, the selection of persons to be em- 
ployed as laborers or otherwise in the service of the commonwealth and 
said cities and towns. Such rules shall be of general or limited applica- 
tion, shall be consistent with law ..." 

Said section 47 referred to in section 3 is as follows : — 

"This chapter shall continue in force in all the cities of the common- 
wealth and in all towns of more than twelve thousand inhabitants which 
have accepted corresponding provisions of earlier laws, and shall be in 
force in all such towns which hereafter accept it by vote at a town meet- 
ing. The provisions of this chapter and the rules established under it 
relative to employment of laborers designated as the 'labor service' shall 
not be in force in any city of less than one hundred thousand inhabitants, 
which has not heretofore accepted the corresponding provisions of earlier 
laws, until said provisions are accepted by the city council." 

The provision in section 47 above quoted, that rules relative to em- 
ployment of laborers shall not be in force in any city of less than 100,000 
inhabitants is not intended to grant perpetual exemption from the rule 
making power, under said section 3, to any city which had such a popula- 
tion at the time of the enactment either of the General Laws or of the 
original statute containing a similar provision in 1896 (St. 1896, c. 449, 
amending St. 1884, c. 320). All cities in the Commonwealth have been 
at all times since the passage of said St. 1896, c. 449, subject to the gen- 
eral terms now embodied in said section 3, and when any one of them 
reaches a population of 100,000 the provisions and rules established under 
said section 3, relative to employment of laborers, become applicable 
to such a city. See St. 1884, c. 320, § 2. 

Civil Service Rule 32, section 3, provides as follows: — 

"The Commissioner shall provide for the registration and certification 
of laborers in the service of the Metropolitan District Commission and 
the city of Boston, and in other cities to which the labor rules are or 
may become applicable. The Commissioner may appoint persons to be 
registration clerks in such other cities." 

Inasmuch as the city of Springfield now has a population in excess of 
100,000, said Rule 32, section 3, is now applicable thereto, and from the 
terms of said Rule 32, section 3, it appears that it is mandatory upon 
the Commissioner to provide for the registration and certification of 
laborers in said city. 

I therefore answer your question (a) in the affirmative. 

This answer precludes the necessity of making a specific reply to your 
question (6). 



P.D. 12. 83 

The approval and acceptance of any particular laws is not made by 
the statutes a prerequisite to the establishment of rules relative to the 
employment of laborers in cities of over 100,000 inhabitants. I therefore 
answer your question (c) in the negative. 

Yours very truly, 

Joseph E. Warner, Attorney General. 



Governor and Council — State House — Radio Equipment. 

The Governor and Council have the authority to approve the erection 
of a part of a radio equipment used by the Department of Public 
Safety upon the roof of the State House. 

April 29, 1929. 

To His Excellency the Governor and the Honorable Council.^ 

Gentlemen : — You have requested to be advised as to the authority 
of the Governor and Council to grant their approval to the erection of a 
steel tower to support an antenna, which is a part of the radio equipment 
used in the pohce work of the Department of Public Safety, upon the 
roof of the rear of the State House, such erection having been asked for 
by the Commissioner of said Department. 

I am of the opinion that such an erection ma}'^ properly be made if it 
meets with the approval of the Governor and Council. 

G. L., c. 8, § 6, as amended by St. 1923, c. 362, § 10, provides, with 
relation to the authority of the Superintendent of Buildings, as follows : — 

''He shall direct the making of all repairs and improvements in the 
state house and on the state house grounds. All executive and adminis- 
trative departments and officers shall make requisition upon him for any 
repairs or improvements necessary in the state house or in other buildings 
or parts thereof owned by or leased to the commonwealth and occupied 
by said departments or officers. Such repairs or improvements shall be 
made only upon such requisition signed by the head of the department 
or office. This section shall not apply to state institutions or officers 
thereof." 

G. L., c. 8, § 9, is, in part, as follows: — 

"The superintendent shall, under the supervision of the governor and 
council, have charge of the care and operation of the state house and its 
appurtenances." 

The erection of the steel tower may be said to fall within the terms of 
section 6 as an improvement in the State House, and I assume from 
the communication which you sent me that a requisition for the same, 
signed by the Department of Public Safety, has been made upon the 
Superintendent. 

Inasmuch as the intent of the Legislature in enacting said section 9 
was, obviously, to provide that the Governor and Council should have 
direct charge of the State House and its appurtenances, their approval 
should be given to the making of this contemplated improvement under 
the direction of the Superintendent of Buildings. 
Yours very truly, 

Joseph E. Warner, Attorney General. 



S4 P.D. 12. 

Motor Vehicles — ^^ Right to operate" — Revocation. 

The right to operate a motor vehicle without ever having received a hcense, 
allowed by G. L., c. 90, § 10, as amended, maj^ be revoked by the 
Registrar of Motor Vehicles, and any unlicensed operation thereafter 
may be punished. 

May 8, 1929. 

Hon. Frank E. Lyman, Commissioner of Public Works. 

Dear Sir : — You have asked my opinion as to the interpretation of 
certain portions of the statutes concerning the operation of motor vehicles 
in the following communication : — 

"I am requested by the Registrar of Motor Vehicles to secure an 
opinion as to the exact meaning or effect of the suspension of the right 
of any person to operate motor vehicles in the Commonwealth of Massa- 
chusetts, under G. L., c. 90, § 22, and whether that person may be prose- 
cuted under section 23 of said chapter." 

The pertinent portions of the statutes are quoted below. 

G. L., c. 90, § 10, as amended by St. 1923, c. 464, § 4, provides: — 

"No person shall operate a motor vehicle upon any way unless licensed 
under this chapter, except as is otherwise herein provided ; but this section 
shall not prevent the operation of motor vehicles by unlicensed persons if 
riding xoith or accompanied by a licensed operator, excepting only persons 
who have been licensed and whose licenses are not in force because of 
revocation or suspension, persons whose right to operate has been sus- 
pended by the registrar, and persons less than sixteen years of age; but 
such licensed operator shall be liable for the violation of any provision 
of this chapter, or of any regulation made in accordance herewith, com- 
mitted by such unlicensed operator; provided, that the examiners of 
operators, in the employ of the registrar, when engaged in their official 
duty, shall not be liable for the acts of any person who is being examined. 
During the period within which a motor vehicle of a non-resident may be 
operated on the ways of the commonwealth in accordance with section 
three, such vehicle may be operated by its owner or by his chauffeur or 
employee without a license from the registrar if the operator is duly 
licensed under the laws of the state in which he resides, or has complied 
fully with the laws of the state of his residence respecting the licensing 
of operators of motor vehicles; but if any such non-resident or his chauf- 
feur or employee be convicted by any court or trial justice of violating 
any provision of the laws of the commonwealth relating to motor vehicles 
or to the operation thereof, whether or not he appeals, he shall be there- 
after subject to and required to comply with all the provisions of this 
chapter relating to the registration of motor vehicles owned by residents 
of the commonwealth and the licensing of the operators thereof. A record 
of the trial shall be sent forthwith by the court or trial justice to the 
registrar. This section shall apply to the operation of all vehicles pro- 
pelled by power other than muscular power, except railroad and railway 
cars, road rollers, and motor vehicles running only upon rails or tracks." 

G. L., c. 90, § 22, as amended by St. 1923, c. 464, § 6, provides: — 

"The registrar may suspend or revoke any certificate of registration 
or any license issued under this chapter, after due hearing, for any cause 
which he may deem sufficient, and he may suspend the license of any 



P.D. 12. 85 

operator or fhe certificate of registration of any motor cycle in his dis- 
cretion and without a hearing, and may order the Hcense or registration 
certificate to be dehvered to him, whenever he has reason to beheve that 
the holder thereof is an improper or incompetent person to operate motor 
vehicles, or is operating improperly or- so as to endanger the public : and 
neither the certificate of registration nor the license shall be reissued 
unless, upon examination or investigation, or after a hearing, the registrar 
determines that the operator should again be permitted to operate. The 
registrar, under the same conditions and for the same causes, may also sus- 
pend the right of any person to operate motor vehicles in the commonwealth 
under section ten until he shall have received a license from the registrar." 

G. L., c. 90, § 23, as finally amended by St. 1927, c. 267, § 2, provides: — 

"Any person convicted of operating a motor vehicle after his license to 
operate has been suspended or revoked or after notice of the suspension 
of his right to operate a motor vehicle without a license has been issued by 
the registrar and received by such person or by his agent or employer 
and, prior to the restoration of such license or right to operate or to the issuance 
to him of a new license to operate, and any person convicted of operating 
or causing or permitting any other person to operate a motor vehicle 
after the certificate of registration for such vehicle has been suspended 
or revoked and prior to the restoration of such registration or to the 
issuance of a new certificate of registration for such vehicle, shall, except 
as provided by section twenty-eight of chapter two hundred and sixty- 
six, be punished for a first offence by a fine of not less than fifty nor more 
than one hundred dollars or by imprisonment for not more than ten 
days, or both, and for any subsequent offence by imprisonment for not 
less than ten days nor more than one year, and any person who attaches 
or permits to be attached to a motor vehicle a number plate assigned by 
the registrar to another vehicle, or who obscures or permits to be obscured 
the figures on any number plate attached to any motor vehicle, or who 
fails to display on a motor vehicle the number plate and the register 
number duly issued therefor, with intent to conceal the identity of such 
motor vehicle, shall be punished by a fine of not more than one hundred 
dollars or by imprisonment for not more than ten days, or both." 

The proper construction of the statutes with relation to the subject 
matter of your inquiry will ultimately be one for judicial determination, 
but for your guidance and that of the Registrar of Motor Vehicles I state 
that my opinion is that "the right of any person to operate motor vehicles 
in the Commonwealth under section ten until he shall have received a 
license from the registrar," mentioned in the last sentence of G. L., c. 90, 
§ 22, refers to the right to operate accorded by G. L., c. 90, § 10, to (1) 
unlicensed persons riding with or accompanied by a licensed operator 
who are not within the classes of persons specifically excepted from the 
enjoyment of such right by said section, and (2) non-residents, unlicensed 
in this Commonwealth, under certain circumstances set forth in said 
section. Any of such persons who operates a motor vehicle after his right 
to operate, as defined above, is suspended by the action of the Registrar, 
under said section 22, may be prosecuted under the provisions of said 
section 23. 

In other words, the right to operate, referred to in the last sentence of 
said section 22, is the right to operate without ever having received a 
license, and when such right is lost by the action of the Registrar further 



86 P.D. 12. 

unlicensed operation of any sort, whether the specific kind enjoyed under 
the particular "right" or not, pending restoration of such right, subjects 
the person to the penalties appropriate for such offence set forth in said 
section 23. A similar interpretation is to be applied to the words "after 
his right to operate without a license has been suspended," as used in 
G. L., c. 266, § 28, as amended by St. 1926, c. 267, § 1, reading as follows: — 

"Whoever steals an automobile or motor cycle, or receives or buys an 
automobile or motor cycle knowing the same to have been stolen, or 
conceals any automobile or motor cycle thief knowing him to be such, 
or conceals any automobile or motor cycle knowing the same to have 
been stolen, or takes an automobile or motor cycle without the authority 
of the owner and steals from it any of its parts or accessories, or without 
the authority of the owner operates an automobile or motor cycle after his 
right to operate without a license has been suspended or after his license to 
operate has been suspended or revoked and prior to the restoration of 
such right or license to operate or to the issuance to him of a new license 
to operate, shall be punished by imprisonment in the state prison for not 
more than ten years or imprisonment in jail or house of correction for 
not more than two and one half years." 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Commissioner of Correction — Officer — Pension. 

With relation to certain employees of the Department of Correction 
only "officers" may be retired on a pension, and a prehminary de- 
termination as to whether an applicant for a pension is an officer 
must be made by the Commissioner. 

May 17, 1929. 
Hon. Sanford Bates, Commissioner of Correction. 

Dear Sir: — You ask my opinion on the following question: — 

"A man, employed at the Reformatory for Women since January, 1894, 
under various titles but doing practically the same kind of work, largely 
disciplinary cases with the inmates, has asked for a ruling as to whether 
or not he is eligible for retirement under the prison officers' retirement 
act, G. L., c. 32, § 46. He contends that while he has not been hsted as 
an officer of the institution he has in fact been the only disciplinary officer 
there since his appointment, and therefore should be eligible for retire- 
ment as an officer." 

G. L., c. 32, § 46, as amended by St. 1921, c. 403, and St. 1926, c. 343, 
§ 7, provides: — 

"The commissioner of correction may, with the approval of the gov- 
ernor and council, retire from active service and place upon a pension 
roll any officer of the state prison, the Massachusetts reformatory, the 
prison camp and hospital, the state farm, the reformatory for women or 
any jail or house of correction, or any person employed to instruct the 
prisoners in any prison or reformatory, as provided in section fifty-two 
of chapter one hundred and twenty-seven, or any other employee of the 
state prison, the Massachusetts reformatory or the prison camp and 
hospital, who has attained the age of sixty-five and who has been em- 
ployed in prison service in the commonwealth, with a good record, for 
not less than twenty years; or who, without fault of his own, has become 



P.D. 12. 87 

permanently disabled by injuries sustained in the performance of his 
duty; or who has performed faithful prison service for not less than 
thirty years; . . . and provided, that no such officer, instructor or em- 
ployee shall be retired unless he began employment as such in one of the 
above named institutions, or as an officer or instructor in one of those 
named in the following section, on or before June seventh, nineteen hun- 
dred and eleven. The word 'officer', as used in this and the two follow- 
ing sections, shall extend to and include prison officer, correction officer 
and matron." 

It is clear that the only employees of the Reformatory for Women 
eligible for a pension under the foregoing statute are officers, which term 
includes "prison officer, correction officer and matron," and instructors. 

In an opinion of a former Attorney General, dated February 24, 1914 
(not published), in which he had occasion to consider St. 1908, c. 601, as 
amended by St. 1911, c. 673 (the original statute providing for the retire- 
ment and pensioning of officers and instructors and other employees in 
penal institutions of the Commonwealth), he defined the word "officer," 
as used therein, to mean "those persons who are employed to, and who as 
a regular part of their duties do, have charge either of all or a definite 
number of persons committed to prison, jail or reformatory by legal 
process." 

St. 1921, c. 403, enlarged the scope of the law relative to retiring and 
pensioning all prison officers by defining the word "officer" to include 
"prison officer, watchman and matron." The term "watchman" was 
stricken out by St. 1926, c. 343, § 7, and the words "correction officer" 
were substituted. The additions and elisions made by these statutes do 
not, in my opinion, alter the definition quoted above. 

In a later opinion of another Attorne}^ General (V Op. Atty. Gen: 227) 
it was said, in speaking of said definition: — 

"This seems to me to be an appropriate definition of the term, and, in 
my opinion, it should be emploj^ed in determining who are officers in the 
prison service, within the meaning of the statute under consideration. . . . 

If an employee is appointed and carried on the pay roll as an officer, 
that fact may, pri7na facie, entitle him to the benefits of this statute, 
though it is not conclusive. Calling a clerk an officer, of course, cannot 
make him such. Nor does the fact that an employee may occasionally, 
as an incidental part of his work, have some supervision over a few of 
the prisoners who are assigned to work in his department make him an 
officer. It must be a regular and substantial part of his duty to have 
charge and control of prisoners in order to bring him within the definition 
of prison officers to which I have referred. Thus, the engineers, assistant 
engineers and stewards or cooks cannot, in my opinion, be regarded as 
officers merely because prisoners are from time to time assigned to work 
in their departments under their direction. Again, persons appointed as, 
and in the main performing the duties of, clerks are not officers unless in 
addition they perform substantial duties of the character indicated in 
this definition of prison officers." 

It would seem, therefore, that this resolves itself into a question of 
fact in each individual case, and whether or not a person is an officer 
must be determined b}- the Commissioner of Correction before such 
person can be pensioned. 

Yours very truly, 

Joseph E. Warner, Attorney General. 



88 P.D. 12. 

Marriage and Divorce — Records — Corrections. 

City or town clerks' records of marriages may not be expunged but may 

be corrected. 
The validity of a marriage is not determined by the records of a city or 

town clerk. 
Decrees of nullity as to marriages are not required to be filed with city 

or town clerks. 

May 23, 1929. 
Hon. Frederic W. Cook, Secretary of the Conwionwealth. 

Dear Sir: — You have requested my opinion upon the following 
questions : — 

"1. Can the record of a marriage which is subsequently annulled by 
decree of court, or voided without a decree of divorce or other legal proc- 
ess as provided in G. L., c. 207, § 8, be expunged from the record books 
of a city or town clerk or registrar? 

2. If such record cannot be expunged and such marriage stands as a 
matter of record, must either party to such marriage, in making written 
notice of intention of another marriage, state that such subsequent mar- 
riage is his or her second marriage? 

3. Must a copy of the decree, if any, be filed with the notice of intention 
of marriage?" 

1. There do not appear to be any provisions of the statutes which 
provide for the expunging of records of a marriage kept by city or town 
clerks. Correction of such records may be accomplished, however, in 
the manner described in G. L., c. 46, § 13, as amended by St. 1925, c. 281, 
§ 2, which reads as follows : — 

"If the record relating to a birth, marriage or death does not contain 
all the required facts, or if it is claimed that the facts are not correctly 
stated therein, the town clerk shall receive an affidavit containing the 
facts required for record, if made by a person required by law to furnish 
the information for the original record, or, at the discretion of the town 
clerk, by credible persons having knowledge of the case. If a person 
shall have acquired the status of a legitimate child by the intermarriage 
of his parents and the acknowledgment of his father, as provided in sec- 
tion seven of chapter one hundred and ninety, the record of his birth 
may be amended or supplemented hereunder so as to read, in all respects, 
as if such person had been reported for record as born to such parents in 
lawful wedlock. For such purpose, the town clerk shall, if satisfied as 
to the identity of the persons and the facts, receive an affidavit executed 
by the parents or by either if the other is dead, setting forth the material 
facts. Unless the marriage is recorded in the records in the custody of 
such clerk, such affidavit shall be accompanied by a certified copy of the 
record thereof. He shall file any affidavit submitted under this section 
and record it in a separate book kept therefor, with the name and resi- 
dence of the deponent and the date of the original record, and shall there- 
upon draw a line through any incorrect statement, or statements, sought 
to be amended in the original record, without erasing them, shall enter 
upon the original record the facts required to correct, amend or supple- 
ment the same and forthwith, if a copy of the record has been sent to 
the state seci-etary, shall forward to the state secretary a certified copy 
of the corrected, amended or supplemented record upon blanks to be 



P.D. 12. 89 

provided by him, and the state secretary shall thereupon correct, amend 
or supplement the record in his office. Reference to the record of the 
affidavit shall be made by the clerk on the margin of the original record. 
If the clerk furnishes a copy of such record, he shall certify to the facts 
contained therein as corrected, amended or supplemented, and shall 
state that the certificate is issued under this section, a copy of which shall 
be printed on every such certificate. Such affidavit, or a certified copy 
of the record of any other town or of a written statement made at the 
time by any person since deceased required by law to furnish evidence 
thereof, may, in the discretion of the clerk, be made the basis for the 
record of a birth, marriage or death not previously recorded, and such 
copy of record may also be made the basis for completing the record of 
a birth, marriage or death not containing all the required facts." 

Under the foregoing provisions the city or town clerk is not required 
to initiate action for the correction of marriage records, nor are there 
any special requirements relative to such corrections in relation to mar- 
riages which have been recorded but which are void. 

With relation to the facts which are required to be recorded by said 
clerks to make up such marriage records, it is provided by G. L., c. 46, § 1, 
as follows : — 

"Each town clerk shall receive or obtain and record in separate col- 
umns the following facts relative to births, marriages and deaths in his 
town : 

In the record of marriages, date of record, date of marriage, place of 
marriage, name, residence and official station of the person by whom 
solemnized, names and places of birth of the parties married, residence 
of each, age and color of each, the number of the marriage (as first or 
second) and if previously married, whether widowed or divorced, the 
occupation of each and the names of their parents, and the maiden names 
of the mothers. If the woman is a widow or divorced, her maiden name 
shall also be given." 

If a marriage which has been recorded under the terms of said chapter 
46, section 1, is a void marriage, an affidavit containing facts showing 
that it is void, accompanied by a certified copy of a decree of nullity 
entered by a court of competent jurisdiction under the provisions of 
G. L., c. 207, § 14, if any such there be, although not required, might well 
be made "by a person required by law to furnish the information for the 
original record or at the discretion of the town clerk by credible persons 
having knowledge of the case," and the clerk would be required to re- 
ceive it. Such affidavit would then be filed bj^ the clerk in the manner 
described in said G. L., c. 46, § 13, as amended. The clerk would then 
make such corrections, amendments, references and supplements on and 
in the original records as said section 13 requires. 

If this be done the void character of the marriage will appear of record, 
and confusion with relation thereto in the future will be obviated. A 
city or town clerk, however, as I have said, has no authority to "ex- 
punge" the record of a marriage. 

2. I answer j^our second question in the negative. The validity or 
invalidity of a marriage is not determined by the records of a city or 
town clerk relating to such a marriage. If a ceremony has not resulted in 
a valid marriage, a subsequent marriage of either of the parties to such 



90 P.D. 12. 

ceremony is a first marriage as to him or her, irrespective of what appears 
upon the records of a city or town clerk concerning the facts connected 
with the first ceremony. See in this connection VII Op. Atty. Gen. 728. 

3. I answer your third question in the negative. The fihng of a copy 
of a decree of nulhty, either in connection with a correction of a record 
of a marriage subsequently shown to have been void, or with a notice 
of intention of marriage subsequent thereto, would tend to make records 
in the offices of city and town clerks more accurate, but such filing is not 
required by the terms of any statute. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Milk — Misbranding — Prosecution. 

Misbranding of milk by the use of the word "Guernsey" on a container 
when the milk is not from Guernsey cattle and is inferior to the 
product known as Guernsey, mav be prosecuted. 

May 23, 1929. 

Dr. George H. Bigelow, Commissioner of Public Health. 

Dear Sir : — You have asked my opinion as to whether misbranding 
of milk by the use upon the container of the word "Guernsey" in con- 
nection with milk, when the milk is inferior to the product known as 
Guernsey milk and not in fact obtained from Guernsey cattle, may be 
prosecuted under the provisions of G. L., c. 94, § 187. I am of the 
opinion that it may be so prosecuted. 

The general definition of food, in section 1 of said chapter 94, is broad 
enough to cover milk. The specific sections of chapter 94, which deal 
with improperly labeling milk, such as sections 18 and 19, relate to mis- 
leading names applied to grades and qualities of milk different in char- 
acter from those comprehended in the definition of "misbranded," as 
used in said section 187. 

As originally enacted, that portion of G. L., c. 94, entitled "Adultera- 
tion and misbranding of food and drugs," contained in section 185 an 
exclusion from the operation of the ten following sections of various 
commodities, including milk and cream. 

By St. 1921, c. 486, § 26, section 185 was repealed, and there is now 
no specific statutory limitation of the words "article of food" or "food" 
as used generally in section 187. Of course, the ultimate decision of 
your question is one for judicial determination in relation to any par- 
ticular prosecution which may be started. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Laborers — Contracts — Public Works — Payments. 

Contractors engaged in the construction or repair of any water or electric 
light works, pipes or lines may not contract with their workmen to 
pay less often than once a week. 

May 24, 1929. 

Gen. E. Leroy Sweetser, Commissioner of Labor and Industries. 

Dear Sir: — You have asked my opinion as to whether it is legal for 
a contractor who is doing work for the Commonwealth to pay less often 
than weekly such of his employees as may request in writing to be paid 
in a different manner. 



P.D. 12. 91 

The law pertinent to the question is contained in G. L., c. 149, § 148, 
as most recently amended by St. 1925, c. 165. There is no restriction 
in this respect upon contractors doing work for the Commonwealth as 
such. The section, however, does apply to contractors engaged in certain 
enumerated types of work, among which is ''the construction or repair 
of any . . . water or electric light works, pipes or lines." The company 
to which your letter refers is apparently engaged in the construction of 
the works in connection with the taking of the Swift and Ware rivers, 
and therefore would come under the prohibition contained in the statute. 

In my opinion, a company engaged in any of the types of work enu- 
merated in the statute must pay its employees weekly, and may not 
avoid this duty by contract with the employee or otherwise. That part 
of the section which permits payment to be made in a different manner, 
if the employee in writing so requests, applies only to cases involving 
employment by the Commonwealth or a county, city or town, and cannot 
be construed to apply to employees of private companies, whether they 
are or are not doing work for the Commonwealth. It follows, therefore, 
that your question should be answered in the negative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Dejpartment of Public Health — Investigation — Barbers. 

Under a resolve of the Legislature the Department of Public Health has 
authority to investigate barbering wherever practiced. 

June 10, 1929. 

Dr. George H. Bigelow, Commissioner of Public Health. 

Dear Sir: — You have asked my opinion relative to the duties of 
your Department under Resolves of 1929, chapter 43, in the follovv'ing 
language : — 

"Chapter 43 of the Resolves of 1929, recently passed, directs this De- 
partment to investigate the matter of barbering in the Commonwealth. 
In defining what constitutes 'barbering,' singeing, dj^eing and various 
manipulations of and applications to the face are mentioned. Such pro- 
cedures are practiced in so-called beauty parlors. I should like to know 
whether, in your opinion, this definition of 'barbering' extends the scope 
of our investigation to this latter type of establishment." 

Resolves of 1929, chapter 43, reads as follows: — 

^'Resolved, That the department of public health is hereby authorized 
and directed to investigate the need, as a health measure, for establishing 
a board of registration of barbers or otherwise regulating the practice of 
barbering. For the purposes of the investigation, a barber shall be con- 
strued to be an}^ person who, for hire, shaves or trims the beard, cuts the 
hair, gives facial or scalp massage or facial or scalp treatment with oils, 
creams or other preparations, or singes or shampoos the hair or applies 
any hair tonics or dyes to the hair of any person and who is not a regis- 
tered physician or a registered embalmer; and the performance of any 
such service shall be construed as practising barbering. In connection 
with its investigation the department shall consider the subject matter of 
house document numbered one hundred and eighty-one of the current 
year, and shall make such examination of the sanitary condition of bar- 
bering establishments and the practices of barbers as it deems necessary. 



92 P.D. 12. 

Said department shall report to the general court its findings and its recom- 
mendations, if any, together with drafts of such legislation as may be 
necessary to carry its recommendations into effect, by filing the same 
with the clerk of the house of representatives not later than the first 
Wednesday of December in the current year. Said department may ex- 
pend for the aforesaid purpose such sum, not exceeding three thousand 
dollars, as may hereafter be appropriated by the general court." 

Bj^ the terms of this resolve your investigation is to be directed to a 
determination of the need, as a health measure, for establishing a board 
of registration of barbers, or otherwise regulating the practice of barber- 
ing, and j^ou are also directed to consider the subject matter of House 
Document No. 181, dealing with the same subject, and in connection 
therewith to make such examination of the sanitary condition of barber- 
ing establishments and the practices of barbers as your Department may 
deem necessary. A definition of "barber," for the purpose of the investi- 
gation, is set forth in the resolve. There is no definition of "barbershop" 
or of "beauty parlor" contained in the resolve. 

You have authority, and it is your duty under this resolve, to investi- 
gate the practice of barbering, as defined in the resolve, in whatever place 
such barbering may be practiced. In so far as it may be carried on in 
beauty parlors, the practice of barbering there is properly subject to your 
investigation; and it is possible that the relation of the general type of 
business conducted in the beauty parlor to barbering, as this affects the 
sanitary condition of the latter, may require your investigation. 

You have no authority under this resolve to investigate beauty parlors 
as such, but whenever the practice of barbering, as defined in the resolve, 
is carried on therein that practice and the surroundings which affect it 
may well be considered by you. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Corporations — Fee — Certificate of Change in Stock. 

The fee under G. L., c. 156, § 54, as amended, is to be figured at one cent 
per share for additional shares without par value. 

June 11, 1929. 

Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You request my opinion as to the fee to be charged for 
filing a certain certificate relating to a change in authorized stock of a 
certain corporation. 

The certificate, or articles of amendment, in question provides for the 
issuance of 6,000 shares of common stock without par value, in addition 
to 6,000 shares without par value originally authorized and now outstand- 
ing, and also provides for the retirement of 3,000 shares of preferred stock, 
which you state to have a par value of $100. 

G. L., c. 156, § 54, as amended by St. 1928, c. 360, § 2, reads as 
follows : — 

"The fees for filing and recording the following certificates shall be as 
follows: 

For filing and recording a certificate providing for an increase of capital 
stock with par value, one twentieth of one per cent of the amount by which 
the capital is increased; but not in any case less than twenty-five dollars. 



P.D. 12. 93 

For filing and recording a certificate providing for a change of shares 
with par value to shares without par value, whether or not the capital is 
changed thereby, one cent for each share without par value resulting from 
such change, less an amount equal to one twentieth of one per cent of the 
total par value of the shares so changed; but not in any case less than 
twenty-five dollars. 

For filing and recording a certificate providing for an increase in the 
number of shares without par value, whether or not the capital is changed 
thereby, one cent for each additional share; but not in any case less than 
twenty-five dollars." 

You state that the attorney for the corporation contends that the net 
result of the transaction in question is a reduction of capitalization, and 
that therefore the fee should be $10.00, as provided in section 55 for cer- 
tificates other than those covered by section 54. 

But in determining whether an increase of capitalization is effected, 
shares without par value are to be treated as having a par value of $100 
(see V Op. Atty. Gen. 570), and therefore the present transaction results 
in a net increase rather than in a reduction. 

Furthermore, under the amendment of 1928, above quoted, the fee in 
the case of additional shares without par value does not appear to be 
dependent upon a net increase in capitalization being effected. In the 
case of shares without par value the law as it previously existed (see 
Commonwealth v. United States Worsted Co., 220 Mass. 183; G. L., c. 
156, § 54) has been changed by the amendment of 1928. The reduced 
fee of one cent per share is expressly made independent of the question 
"whether or not the capital is changed thereby." It is clear that the 
transaction in question, involving, as it does, the issuance of additional 
shares without par value, comes within the provisions of section 54, as 
amended. 

It might be questioned whether the certificate comes under the provisions 
of paragraph 3 or of paragraph 4 of section 54, as amended. You assume 
in your letter that it comes under the fourth paragraph, if under either, 
and I think that that assumption is correct. Paragraph 3 refers to "a 
change of shares with par value to shares without par value"; and it can- 
not be said of the present transaction that any outstanding stock of par 
value is being changed to stock without par value. The new stock is to be 
issued for cash; it is not to be exchanged for the preferred, which is retired. 

The present certificate provides for an increase in the number of shares 
"without par value," and therefore comes within paragraph 4. It may 
seem that the corporation should receive a deduction on account of the 
preferred stock retired, and that the fee should be figured only upon net 
increase of capitalization, as would have been done under section 54 be- 
fore the amendment. That would make the fee $30.00. Or perhaps it 
may be thought that a deduction should be given at the rate of five cents 
per share upon the stock retired, as is provided in paragraph 3. That 
would make the deduction $150, and therefore make the fee the mini- 
mum of $25.00. But, in my opinion, under the words of paragraph 4 
the fact that the preferred stock is being retired can have no bearing upon 
the amount of the fee, which is to be figured upon the increase in the 
number of shares without par value. If the Legislature had intended the 
fee under paragraph 4 to be based upon the amount by which the capital 
is increased, it would have said so, as it did in connection with paragraph 
2; or if it had intended to give a deduction because of a retirement of 
other stock, it would have said so, as it did in connection with paragraph 3. 



94 P.D. 12. 

In my opinion, therefore, the fee in the present case must be figured 
at one cent per share for the additional 6,000 shares without par value, 
that is, $60.00. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Agriculture — Retailer of Seeds — Name. 

The name of the retailer of agricultural seeds must appear on every 
package of seeds, however put up. 

June 12, 1929. 

Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — You ask my opinion on certain questions relative to 
G. L., c. 94, as amended by St. 1927, c. 274, in the following language: — 

"G. L., c. 94, §§ 261A, 261B, 261C and 261E. require that the name and 
address of the vendor be shown on containers of agricultural seeds or 
mixtures of agricultural seeds. The question arises as to who the vendor 
of the agricultural seeds is when there has been a sale of such seeds in the 
Commonwealth. Many of the seeds that are sold have the name and 
address of the wholesaler on the package, and a large amount of seeds 
that are sold have the name and address of the wholesaler on the tag 
fastened to the large container from which the seeds are sold in smaller 
packages. 

It is the contention of many of those who have been requested to ap- 
pear with reference to reported violations of our seed law that the name 
and address of the wholesaler satisfies the law as to the requirement for 
the name and address of the vendor of such seeds or mixtures. Your 
opinion is therefore requested as to who is the vendor in the sale of agri- 
cultural seeds or mixtures thereof in the State of Massachusetts. 

Sections 261A, 261B and 261C indicate that agricultural seeds or mix- 
tures of agricultural seeds shall have affixed thereto in a conspicuous 
place on the exterior of the container of such seeds or mixtures a plainly 
written or printed tag or label with a statement in the English language 
of certain required information. The question has arisen as to the inter- 
pretation of the word 'container.' . . . 

This Department is interested in the interpretation of the word 'con- 
tainer.' . . . The question of importance, therefore, is whether or not 
the word ' container ' refers to the package that is handed over the counter 
to the vendee in a sale of agricultural seeds or mixtures thereof." 

G. L., c. 94, as amended by St. 1927, c. 274, § 2, provides: — 

"Section 261A. Every lot of agricultural seeds of ten pounds or more, 
except as otherwise provided in sections two hundred and sixty-one B to 
two hundred and sixty-one L, inclusive, shall have affixed thereto, in a 
conspicuous place, on the exterior of the container of such agricultural 
seeds, a plainly written or printed tag or label in the English language, 
stating: 

(f) Name and address of the vendor of such agricultural seed." 

Sections 261B, 261C and 261E, added to G. L., c. 94, by St. 1927, 
c. 274, § 2, contain similar provisions with reference to the information 
to be written or printed on the tag or label to be affixed to the container. 

Section 261L, added to said chapter 94 by the 1927 statute, provides: — 



P.D. 12. 95 

"Whoever sells, offers or exposes for sale, any lot of agricultural seeds, 
or mixtures of agricultural seeds, without complying with the require- 
ments of sections two hundred and sixty-one A to two hundred and sixty- 
one K, inclusive, or falsely marks or labels such agricultural seeds or 
mixtures thereof or vegetable seeds, or impedes, obstructs or hinders the 
commissioner of agriculture or any of his duly authorized agents in the 
discharge of the authority or duties conferred or imposed by any pro- 
vision of said sections, shall be punished by a fine of not more than five 
hundred dollars." 

G. L., c. 4, § 6, provides: — 

"In construing statutes the following rules shall be observed, unless 
their observance would involve a construction inconsistent with the mani- 
fest intent of the law-making body or repugnant to the context of the 
same statute: 

Third, Words and phrases shall be construed according to the common 
and approved usage of the language; but technical words and phrases 
and such others as may have acquired a peculiar and appropriate mean- 
ing in law shall be construed and understood according to such meaning." 

I am of the opinion that the words "container" and "vendor," as 
used in the statute above quoted, are to be given their ordinary meaning. 
The word "container" means a package of any description capable of 
holding the various seeds described in the statute. Said package may be 
in the form of a box made of wood, tin, cardboard, fibre, etc., or it may 
consist of a paper bag ordinarily used in retail stores. The word "vendor," 
as used in said statute, must be construed to mean a person, firm or cor- 
poration which actually sells within the Commonwealth the seeds de- 
scribed in the statute. 

The statute applies equally to producer, wholesaler or distributor and 
retailer of agricultural seeds if he engages in business in this Common- 
wealth. The tag or label required to be affixed to the container must 
have written or printed thereon all of the information required by this 
statute. This applies to the retailer who sells the seeds within the Com- 
monwealth, notwithstanding the fact that the seeds which he sells may 
have been put up in packages by the producer, wholesaler or distributor 
doing business within or without the Commonwealth, and that tags or 
labels bearing the name and address of such wholesaler, producer or dis- 
tributor are plainly printed in the English language and affixed to said 
containers. In other words, the name of the retailer must appear on 
every package of seeds whether the seeds are contained in packages put 
up by the producer, wholesaler or distributor or put up in a "paper bag 
package." This contention is clearly supported bv the last paragraph of 
St. 1927, c. 274, § 2 (G. L., c. 94, § 261L). 
Yours very truly, 

Joseph E. Warner, Attorney General. 



96 P.D. 12. 

Election Commission of Lowell — Appointment of Clerk — Civil Service. 

An appointment of a clerk by the election commission of Lowell is not 
under the Civil Service Rules. 

June 24, 1929. 
Hon. Elliot H. Goodwin, Commissioner of Civil Service. 

Dear Sir: — You request my opinion as to whether the appointment 
of a clerk by the election commission of the city of Lowell is within the 
civil service. 

The appointment is made under St. 1920, c. 154, § 4, which provides 
that the election commission ''may employ such persons as they may 
deem necessary in the performance of their duties: provided, however, 
that among the persons so employed after the passage of this act, the 
two dominant political parties shall at all times be equally represented." 

In my opinion, the provision which makes party affiliation a qualifica- 
tion leads to the conclusion that the appointment was not intended to be 
within the civil service. G. L., c. 31, § 10, provides: 

"No question in any examination shall relate to political or religious 
opinions or affiliations, and no appointment to a position or selection for 
employment shall be affected by them." 

The Civil Service Commission, therefore, has no official means of know- 
ing which, if any, of the persons whose names appear upon its list are 
eligible for the appointment. Moreover, even if it did know, it could 
not make a selection for certification, for it is required to certify names 
in the order of standing upon the eligible hst. G. L., c. 31, §§ 15 and 23; 
Civil Service Rule 16. The civil service laws and rules do not fit the case 
in question. 

This conclusion is confirmed by the fact that the appointment of assist- 
ant registrars by the election commission of Boston, under St. 1913, 
c. 835, § 80, which provided, similarly to the statute now in question, 
that the two leading political parties should be equally represented in 
appointments, was recognized as not within the civil service; and also 
by the fact that when the Legislature, by St. 1920, c. 305, placed such 
appointments by the Boston commission within the civil service it was 
thought necessary at the same time to alter the civil service law to fit 
the situation, which was done by providing in section 2 of the 1920 statute 
that an applicant must file with the Civil Service Commission a certificate 
of party enrollment. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Medical Examiner — Absence — Associate. 

Absence of a medical examiner sufficient to authorize an associate examiner 
to perform his duties is not restricted to absence from the Common- 
wealth of the former official. 

June 25, 1929. 

Hon. Charles R. Clason, District Attorney for the Western District. 

Dear Sir: — It was held by one of my predecessors in office, in an 
opinion given to the medical examiner in the Third Bristol District, dated 
April 11, 1917 (not published), that actual absence of a medical examiner 



P.D. 12. 97 

from his district was not required in order to authorize associate medical 
examiners to act. It was pointed out that "the administration of the law 
in relation to medical examiners ordinarily requires prompt action, and 
therefore the determination of when the associate medical examiner should 
act in place of the medical examiner must depend upon the facts arising 
in each case." 

G. L., c. 38, § 2, reads: — 

"Associate examiners in the other counties" (exclusive of Suffolk) 
"shall, in the absence of the medical examiners or in case of their in- 
ability to act, perform in their respective districts all the duties of medical 
examiners." 

Apparently my predecessor, in construing the Revised Laws, where 
similar language was used, felt, as I do, that there might be situations, 
other than the actual absence of the medical examiner from the district, 
in which the associate was authorized to perform the former's duties. I 
think that section 16 of said chapter 38, with relation to the duties of the 
associate examiners, should be construed, in the light of section 2, with 
the meaning which I have indicated. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Supervisor of Public Records — Custody — Rules. 

The Supervisor of Public Records has authority to approve specifications 
of a safe for the preservation of records, and may make rules relative 
thereto. 

June 27, 1929. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir : — You have asked my opinion as to whether or not the 
Supervisor of Pubhc Records is authorized to establish or approve speci- 
fications of fireproof safes or vaults to be used for the safe-keeping of 
public records, and also to promulgate rules and regulations for the manu- 
facture, construction and use of such fireproof safes or vaults. 

G. L., c. 66, § 1, provides as follows: — 

"The supervisor of public records . . . shall take necessary measures 
to put the records of the commonwealth, counties, cities or towns in the 
custody and condition required by law and to secure their preserva- 
tion. . . ." 

Section 1 1 of said chapter 66 provides as follows : — 

"Officers in charge of a state department, county commissioners, city 
councils and selectmen shall, at the expense of the commonwealth, county, 
city or town, respectively, provide and maintain fireproof rooms, safes 
or vaults for the safe-keeping of the public records of their department, 
county, city or town, other than the records in the custody of teachers of 
the public schools, and shall furnish such rooms with fittings of non- 
combustible materials only." 

While this last section imposes a duty upon the various officers to keep 
pubhc records in fireproof safes or vaults, I am of the opinion that under 
section 1 the Supervisor of Public Records has authority to determine what 
is a proper fireproof safe or vault, and that such safe or vault must cor- 



98 P.D. 12. 

respond with specifications which he may approve. Section 1 gives him 
the power to secure the preservation of such records and to see to it that 
they are kept in the custody and condition required by law. This duty 
imposed by this section cannot be successfully carried out unless the 
Supervisor has the power to decide and determine the specifications of 
such a safe or vault. If, in his opinion, a safe or a vault is not fireproof 
or otherwise proper, it is my opinion that it may not be used for the 
keeping of public records. I do not believe that the Supervisor may 
approve specifications of manufacturers or can in any way determine 
questions arising out of the manufacture of these safes or vaults, as his 
only concern is their use as a container for public records. 

Under section 1 he also has the power to promulgate reasonable rules 
and regulations concerning the use and construction of such safes or vaults, 
as this obviously is one of the ''necessary measures" to secure the preser- 
vation of the records. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Sentence — State Farm — Indeterminate Sentence. 

A prisoner committed to the State Farm may be held in custody for 
two years under an indeterminate sentence. 

June 28, 1929. 
Dr. A. Warren Stearns, Cornmissioner of Correction. 

Dear Sir: — You have addressed the following communication to me, 
setting forth certain facts relative to a person committed to the State 
Farm : 

"A person was committed to the State Farm May 8, 1929, from the Dis- 
trict Court in Maiden, for the offence of 'refusing to work while an inmate 
of a city home,' under G. L., c. 117, § 22, which specifically states that 
the sentence shall be for one year. 

G. L., c. 279, § 36, states: 'In imposing a sentence of imprisonment at 
the state farm, the court or trial justice shall not fix or limit the duration 
thereof.' 

Said section 36 also states : ' Whoever is sentenced to the state farm for 
drunkenness may be there held in custody for not more than one year, 
and if so sentenced for any other offence may be there held in custody 
for not more than two years.' 

In view of the above two apparent inconsistencies in the law, and in 
view of the ruling of the Supreme Court in Piatt v. Commonwealth, 256 
Mass. 539, I write to ask you for an opinion as to whether this man's 
maximum sentence should be one year or two years for the above offence." 

I assume, for the purposes of this opinion, although you do not defi- 
nitely so state, that the sentence of the judge in the District Court was a 
sentence for an indefinite period to the State Farm, and that the judge 
did not himself in the sentence attempt to fix a definite period for such 
confinement. I gather from your communication that the sentence was 
imposed under the provisions of G. L., c. 117, § 22, which reads as fol- 
lows: — 

"Whoever refuses or neglects to perform any labor required of him under 
the two preceding sections, or who, while performing such labor, wilfully 



P.D. 12. 99 

damages any property of the town requiring the same, shall be punished, 
in Suffolk county by imprisonment in the house of correction for not more 
than one year, and in other counties, in the house of correction or at the 
state farm for a like term." 

The original enactment, which is now embodied in said section 22, is 
St. 1895, c. 445, § 3, which reads as follows: — 

"Whoever refuses or neglects to perform any labor required of him as 
aforesaid, or while performing such labor wilfully damages any property 
of the city or town requiring the performance of such labor, shall on con- 
viction thereof by any court or magistrate having jurisdiction of the offence 
be punished by imprisonment not exceeding one year in the house of cor- 
rection or at the state farm, or, in the county of Suffolk, in the house of 
correction or house of industry." 

This statute of 1895 was incorporated in the Revised Laws as section 
24 of chapter 81, as follows: — 

"Whoever refuses or neglects to perform any labor required of him 
under the provisions of the two preceding sections, or while performing 
such labor wilfully damages any property of the city or town requiring 
the same, shall be punished, in the county of Suffolk, by imprisonment 
in the house of correction for not more than one year, and in other counties, 
in the house of correction for a hke term, or at the state farm." 

Subsequent to the enactment of said statute of 1895, St. 1898, c. 443, 
was enacted, which, in section 1, reads as follows: — 

"When a convict is sentenced to the state farm the court or trial jus- 
tice imposing the sentence shall not fix or hmit the duration thereof. 
Whoever is so sentenced for drunkenness may be held in the custody of 
said state farm for a term not exceeding one year, and whoever is so sen- 
tenced for any other offence may be held in such custody for a term not 
exceeding two years." 

Section 4 of said chapter 443 provides as follows : — 

"All acts and parts of acts inconsistent with this act are hereby 
repealed." 

Said St. 1898, c. 443, § 1, is now embodied in G. L., c. 279, § 36, which 
is as follows : — 

"In imposing a sentence of imprisonment at the state farm, the court 
or trial justice shall not fix or limit the duration thereof. Whoever is sen- 
tenced to the state farm for drunkenness may be there held in custody 
for not more than one year, and if so sentenced for any other offence may 
be there held in custody for not more than two years." 

At the time of the imposition of the sentence to which you refer in your 
communication, under the terms of said G. L., c. 279, § 36, the judge 
could not impose any sentence to the State Farm except an indeterminate 
one, under which a person convicted of a crime other than drunkenness 
might be held in custody for a term not exceeding two years. The judge 
might have adopted the alternative course of a sentence to the house of 
correction for one year, but if he elected to sentence to the State Farm 
the sentence was governed by the provisions of said G. L., c. 279, § 36, 
the original terms of which were enacted in 1898, and which in that year 



100 P.D. 12. 

superseded the terms of St. 1895, c. 445, § 3, which contained the original 
of the provisions of said section 22. 

It is provided in G. L., c. 281, § 2, that: — 

"The provisions of the General Laws, so far as they are the same as 
those of existing statutes, shall be construed as a continuation thereof and 
not as new enactments." 

The provisions of R. L., c. 81, § 24, and of G. L., c. 117, § 22, above 
referred to, indicate that they were clearly intended as a continuation of 
the original enactment of the statute of 1895, and the effect of the statute 
of 1895 had long since been altered by the enactment of said St. 1898, 
c. 443, already referred to, wherein the provisions for indefinite sentence 
to the State Farm were incorporated and all earlier acts repugnant thereto 
were repealed. The present provisions of the General Laws (c. 117, 
§ 22) continue the effect of the provisions of the statute of 1895 as they 
existed subsequent to the passage of St. 1898, c. 443, and are to be read 
with a consideration of the language used in both of such statutes. 

It was said by the Supreme Court in Moulton v. Commonwealth, 215 
Mass. 525, 527: — 

"If, however, an earlier statute is repugnant to the subsequent act the 
presumption is, that the latter statute is intended as the final expression 
of the legislative will, and the former statute is necessarily repealed by 
implication." 

Moreover, it is a general principle of statutory interpretation that a 
body of laws enacted at one time, as were the General Laws, is to be con- 
strued so as to constitute, so far as practicable, an harmonious entity. 
Brooks V. Fitchburg & Leominster St. Ry. Co., 200 Mass. 8. And the 
Supreme Judicial Court, in Piatt v. Commonwealth, 256 Mass. 539, 543, 
has said : — 

"The history of legislation shows that the General Court in compara- 
tively recent years has established the indeterminate sentence to exist 
alongside the definite sentence as to many offences. The underlying 
design of the indeterminate sentence is to subject the offender to reforma- 
tive influences, to rescue for useful citizenship one started on a criminal 
career and thus enable him to assume right relations with society. It is 
manifest that the bringing back to upright conduct of one embarked 
upon evil courses cannot commonly be easily or quickly accomplished. 
Time is required for the operation of physical, industrial, mental and moral 
training and education essential to the work of reclamation of human 
beings. 

There have been superimposed by the Legislature, upon its statutes 
requiring sentences for specifically defined terms of incarceration upon a 
finding or verdict of guilty as to misdemeanors like the present, the newer 
statutes relative to the indeterminate sentence. These several provisions 
are not contradictory and incompatible, but constitute a consistent frame 
of law. It has been left to the court to determine on the evidence in each 
case whether the purely punitive sentence for a specified period, or the 
indefinite sentence with a reformative purpose even though invoking 
longer restraint, is better for the common welfare." 

If, as I have said, the trial judge in pronouncing sentence had desired 
to avail himself of that portion of the law which permitted a definite 
sentence of one year, he might have done it by a sentence to the house of 



P.D. 12. 101 

correction. If he elected to adopt the use of the indefinite sentence, as 
he apparently did, he could not set the term thereof (G. L., c. 279, § 36), 
and by the provisions of said G. L., c. 279, § 36, which control the limits 
of the indeterminate sentence, the prisoner committed thereunder may be 
held in custody for not more than two years. 
Yours very truly, 

Joseph E. Warner, Attorney General. 



Marriage Records — Certificate — Death Records — Diseases. 

The date of a certificate of the filing of intention of marriage should be 

the date of its issue. 
Diseases which are the cause of a death should be entered upon the death 

records of municipal clerks and the Secretary of the Commonwealth. 

June 28, 1929. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You have asked my opinion upon certain questions of 
law relative to various sets of facts which you have set forth in a letter 
to me. 

Your first question is as follows : — 

"G. L., c. 207, § 28, provides that 'on or after the fifth day from the 
filing of notice of intention of marriage . . . the clerk or registrar shall 
deliver to the parties a certificate,' and that 'if such certificate is not 
used it shall be returned to the office issuing it within six months after 
it is issued.' 

Some clerks mail the certificate on the fifth day after the intention has 
been filed, dating the certificate on that date. Other clerks do not date 
the certificate until it is called for, in some cases several months (possibly 
years) after the date of filing the notice of intention. 

What is to be considered the date a certificate is issued?" 

G. L., c. 207, § 28, reads as follows: — 

"On or after the fifth day from the fifing of notice of intention of mar- 
riage, except as otherwise provided, the clerk or registrar shall deliver 
to the parties a certificate signed by him, specifying the date when notice 
was filed with him and all facts relative to the marriage which are required 
by law to be ascertained and recorded, except those relative to the person 
by whom the marriage is to be solemnized. Such certificate shall be 
delivered to the minister or magistrate before whom the marriage is to be 
contracted, before he proceeds to solemnize the same. If such certificate 
is not used, it shall be returned to the office issuing it within six months 
after it is issued." 

I am of the opinion that the date on which a certificate is issued is the 
date of its delivery to the parties referred to in the said section. The 
date written upon the certificate by the clerk may well be considered 
prima facie evidence of the date of such delivery, but it would appear 
to be the proper course for the clerk or registrar to follow to date the 
certificate upon the day of delivery. 

Your second question is as follows : — 

"If a city or town clerk or the Secretary of the Commonwealth has 
received facts relative to a death, giving gonorrhoea or syphilis as the 



102 P.D. 12. 

disease or cause of death, is he prohibited from entering such facts in 
the record of death and from subsequently issuing a certificate containing 
said facts?" 

G. L., c. 46, § 1, relative to facts to be recorded by city and town clerks, 
in its pertinent parts reads as follows : — 

"Each town clerk shall receive or obtain and record in separate columns 
the following facts relative to births, marriages and deaths in his town: 

In the record of deaths, date of record, date of death, name of deceased, 
sex, color, condition (whether single, widowed, married or divorced), 
supposed age, residence, occupation, place of death, place of birth, names 
and places of birth of the parents, maiden name of the mother, disease or 
cause of death, defined so that it can be classified under the international 
classification of causes of death ..." 

The provisions of G. L., c. Ill, § 119, are as follows: — 

"Hospital, dispensary, laboratory and morbidity reports and records 
pertaining to gonorrha?a or syphilis shall not be public records, and the 
contents thereof shall not be divulged by any person having charge of 
or access to the same, except upon proper judicial order or to a person 
whose official duties, in the opinion of the commissioner, entitle him to 
receive information contained therein. Violations of this section shall 
for the first offence be punished by a fine of not more than fifty dollars, 
and for a subsequent offence by a fine of not more than one hundred 
dollars." 

These provisions do not relate to the public records relative to deaths 
which are required to be kept by city and town clerks, under G. L., c. 46, 
or by the Secretary of the Commonwealth, and their prohibitions have 
no application to such records. 

I therefore answer your second question in the negative. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Massachusetts Agricultural College — Trustees — Expenditures — 
Committee. 

No person not a member of the board of trustees of the Massachusetts 
Agricultural College may be appointed to serve on a committee of 
that body to deal with expenditures. 

June 29, 1929. 

Mr. R. W. Thatcher, President, Massachusetts Agricultural College. 

Dear Sir: — You ask my opinion on the question of whether or not 
G. L., c. 75, § 5, "gives the trustees of the Massachusetts Agricultural 
College the right to appoint a committee to authorize expenditures con- 
sisting of others than members of this Board." 

G. L., c. 75, § 5, provides: — 

"Expenditures for maintenance shall be authorized by the trustees or 
by their duly appointed committee. The expenditure of special appropri- 
ations shall be directed by such trustees, and shall be authorized and 
accounted for as are appropriations for maintenance." 

Prior to May 31, 1918, the Massachusetts Agricultural College was a 
public charitable corporation organized for educational purposes by vir- 



P.D. 12. 103 

tue of St. 1863, c. 220, and amendments thereof. By said statute the 
Legislature reserved certain rights, among which was the right to alter, 
limit, annul or restrain the powers vested in said corporation. See III 
Op. Atty. Gen. 308; 460. 

By Gen. St. 1918, c. 262, the Legislature exercised the right reserved 
in said St. 1863, c. 220, and dissolved the corporation, and the Com- 
monwealth took over said college, thenceforth to be maintained as a 
State institution under the name of "Massachusetts Agricultural College." 
Gen. St. 1918, c. 262, also prescribed the powers and duties of the trustees, 
and in section 4 provided : — 

"All expenditures for the maintenance of the institution shall be 
authorized by a majority of the trustees, or by a majority of a duly 
appointed committee of the trustees. . . . The expenditure of special 
appropriations shall be under the direction and control of the trustees, 
and shall be accounted for in the same manner as appropriations for 
maintenance." 

In the rearrangement and consolidation of the General Laws the present 
language of the statute was adopted, but the elisions made by the com- 
missioners in charge of said rearrangement do not affect the original 
intent of the Legislature. 

I am of the opinion that the words "or by their duly appointed com- 
mittee" are to be construed to mean "or by a majority of a duly ap- 
pointed committee of the trustees," and that the trustees of the Massa- 
chusetts Agricultural College have not "the right to appoint a committee 
to authorize expenditures consisting of others than members" of the 
board of trustees. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Auditor — Civil Service — Veteran. 

A veteran appointed to the Auditor's office under St. 1920, c. 428, and 
St. 1921, c. 380, when not, as a matter of fact, employed under the 
civil service law, may be removed without a hearing. 

July 1, 1929. 
Hon. Alonzo B. Cook, Auditor of the Commonwealth. 

Dear Sir: — You request my opinion as to whether a veteran appointed 
and employed in your Department under St. 1920, c. 428, and St. 1921, 
c. 380, is entitled to a hearing in the event of your discontinuing his 
employment. 

In my opinion, he is not. Said chapter 380 provides for the continued 
employment of the employee in question "notwithstanding any civil 
service rules to the contrary." Moreover, it is my understanding that 
the employee in question was not originally appointed and never has 
been employed under the civil service law. This being so, he cannot 
avail himself of G. L., c. 31, § 26, which provides that no veteran shall 
be reinoved except after hearing, for that statute has been construed as 
applying only to veterans appointed under the civil service law. Ayers v. 
Hatch, 175 Mass. 489; Bates v. Selectmen of Westjield, 222 Mass. 296; VII 
Op. Atty. Gen. 90. 

Yours very truly, 

Joseph E. Warner, Attorney General. 



104 P.D. 12. 

Joint Special Committee — Clerk of a Senate Committee — Wages or 

Salary. 

The clerk of the Senate Committee on Rules and assistant to the Presi- 
dent of the Senate may not, while drawing his salary for such posi- 
tion, receive compensation for work as secretary of a joint special 
committee. 

July 2, 1929. 

His Honor William S. Youngman, Chairman, Committee of the Executive 
Council on Finance, Accounts and Warrants. 

Dear Sir : — You have asked my opinion upon the following question : — 

"Eugene W. Mason was employed as clerk of the Senate Committee 
on Rules and assistant to the President of the Senate for the year 1929, 
at an annual salary of $3,000. The joint special committee created by 
order of the Legislature to investigate civil service laws, rules, etc., under 
date of June 25, 1929, have advised His Excellency the Governor and the 
Honorable Council that they desire to employ Eugene W. Mason for 
special legislative work as secretary of their committee, at a compensation 
not to exceed $1,000, payable at the rate of $150 a month, dating from 
July 1, 1929. 

The Committee desires to know whether the Council may legally 
approve the proposed payments to Eugene W. Mason for the special 
legislative work above described." 

I am advised that Mr. Mason's duties as clerk of the Senate Committee 
on Rules and assistant to the President of the Senate do not cease with 
the prorogation of the annual session of the Legislature, but that he is 
still discharging the same and will be required to continue to do so, espe- 
cially in relation to those pertaining to his work as assistant to the Presi- 
dent of the Senate, throughout the current year, although they are not 
sufficient in amount fully to occupy his time during regular working hours, 
at least between i\i\y 1st and December 1st; and that Mr. Mason's 
salary is an annual salary, paid to him monthly throughout the year, 
and not in full at the close of the regular annual session of the General 
Court. Mr. Mason's situation in these respects does not resemble that of 
a member of the General Court, and the considerations relative to the 
latter in regard to a salary paid for services in another official capacity 
rendered after prorogation, as set forth in VI Op. Atty. Gen. 220, are not 
applicable to him. 

Both sums which Mr. Mason would receive for his various forms of 
work, if the compensation as secretary of the joint special committee, 
referred to in your communication, were allowed him, would be payable 
out of the treasury of the Commonwealth. 

G. L., c. 30, § 21, provides: — 

' ' A person shall not at the same time receive more than one salary 
from the treasury of the Commonwealth." 

There is undoubtedly sometimes a distinction between a salary and 
compensation, as when the latter word is used as a synonym for wages. 
This difference has been pointed out and defined in an opinion of one of 
my predecessors in office (V Op. Atty. Gen. 700), in which I concur, and 
from which I quote as follows: — ' 



P.D. 12. 105 

"It is not necessary to quote authorities in defining what is meant by 
the word 'salary' other than to point out that it is Hmited to compensa- 
tion estabhshed on an annual or periodical basis and paid usually in 
installments, at stated intervals, upon the stipulated per annum com- 
pensation. It differs from the payment of a wage in that in the usual 
case wages are established upon the basis of employment for a shorter 
term, usually by the day or week, or on the so-called 'piece work' basis, 
and are more frequently subject to deductions for loss of time." 

Under this definition the payment which Mr. Mason would receive 
as secretary of the said joint special committee, as described in your 
communication, would be a salary. It would not be compensation on a 
per diem basis paid for the limited time in which he was engaged on the 
special work of said committee. There can be no doubt but that the sum 
of S3, 000 which Mr. Mason receives as clerk of the Senate Committee on 
Rules and assistant to the President of the Senate is a salary. 

The facts as you have set them forth in your communication and as 
you have advised me regarding them do not appear to bring this matter 
within the principles relative to overtime work, as set forth in V Op. 
Atty. Gen. 697 and 699. See also II Op. Atty. Gen. 309. 

Accordingly, I am constrained to advise you that the proposed pay- 
ment to Mr. Mason for work for the said joint special committee, in the 
form in which it is now presented, should not, as a matter of law, be 
approved by your Committee. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Teachers^ Retirement Law — Assessments — Failure to deduct Assessments 

seasonably. 

Teachers must pay back assessments and interest thereon before being 
granted a retiring allowance. 

July 2, 1929. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked my opinion as to four questions, which 
are listed below: — 

"1. If the assessments required by section 9 (2) of the retirement law 
(G. L., c. 32) are not deducted from the salary of a teacher who is subject 
to the law, is it necessary that the omitted assessments be paid by the 
teacher if the teacher is in the service of the public schools of Massachu- 
setts, serving either in the city or town where the deductions were not 
made or in some other city or town? 

2. If it is necessary that a teacher pay assessments in error omitted, 
is it also necessary that the teacher pay the interest which would have 
been credited on the omitted assessments, so that the teacher will have to 
his credit in the retirement fund the same amount which he would have 
had if the assessments had been paid in the regular manner as provided 
by section 12 (5) ; or, if the payment of interest is not required, is the 
payment of interest permissible? 

3. If it is necessary that a teacher pay assessments in error omitted, 
either with or without the interest on said assessments, can the teacher 
be granted a retiring allowance before the amount due the retirement 
fund has been paid in full? 



106 P.D. 12. 

4. Is the following rule adopted by the Retirement Board at a meeting 
held September 29, 1925, in accordance with the provisions of the retire- 
ment law: 

'If a school committee shall neglect to deduct from the salary of a 
teacher the assessments required by law, the amount due the annuity 
fund shall be paid in one sum by the teacher, or in equal monthly install- 
ments over a period of not exceeding five years, provided that the monthly 
installments shall not be less than the regular monthly assessment and 
they shall be deducted from the salary of the member by the employing 
school committee as directed by the Retirement Board.'" 

1. In my opinion, a teacher who is subject to the law must pay into 
the retirement fund all payments required b}^ law which have not been 
deducted by the proper authorities. G. L., c. 32, § 7, defines who are 
members of the Teachers' Retirement Association, and makes member- 
ship in certain cases mandatory. Your question assumes that the teacher 
under consideration is subject to the law, and the teacher must therefore 
become a member of this Association. Section 9 of said chapter 32 
requires that each member shall pay into the annuity fund certain assess- 
ments, which are to be deducted from his salary. Section 12 (5) of said 
chapter 32 provides that the school committee of each town shall, as 
directed by the Board, deduct from the amount of the salary due each 
teacher employed in the public schools of such town such amounts as are 
due as contributions to the annuity fund, as prescribed in section 9. 

I am informed that in certain cases deductions have not been made 
and that several teachers who, under the law, are required to be mem- 
bers of the Association have not paid, either by deduction or otherwise, 
any sums into the annuity fund. In view of the fact that both member- 
ship and payments are mandatory under the statute, I am of the opinion 
that it is necessary that such teachers pay into the fund an amount equal 
to that which they would have paid had the deductions been properly 
made. 

2. I am of the opinion that such a teacher must pay the interest which 
would have been credited on the unpaid assessments, so that he will 
have to his credit in the fund the same amount which he would have had 
if he had regularly paid the assessments as provided by law. It is to be 
noted that section 7 (3) of said chapter 32, as amended by St. 1927, 
c. 173, provides that in certain cases a teacher may become a member of 
the Association by paying an amount equal to the total assessments, 
together with regular interest thereon, which he would have paid if he 
had joined on September 30, 1914. This section is dealing with the case 
of a teacher who, as far as unpaid assessments are concerned, is in exactly 
the same position as the teacher about whom you inquire in your second 
question; and if the law requires that a teacher described in said section 
7 (3) must pay regular interest, it would seem to follow logically that a 
teacher of the type about whom you inquire should also pay that interest. 
Further, it is only equitable that a teacher who has during the past years 
had the use of the money should pay a fair rate of interest upon it, so that 
he will be in approximately the same position as the teacher who has 
complied with the law and from whose salary installments have been 
deducted. 

3. In my opinion, a teacher may not be granted a retiring allowance 
before the amount due the retirement fund has been paid in full. The 
law contemplates that only teachers who have complied with the law 



P.D. 12. • 107 

relative to the payment of installments shall receive the retiring allow- 
ance. Section 7 (3) of said chapter 32, as amended, provides that certain 
teachers who are not compelled to become members of the Association 
may become such members if they so wish. With reference to the pay- 
ment by such teachers of back installments, the paragraph provides that 
the teacher shall become a member of the Association when the total 
amount due on account of back assessments and interest has been accumu- 
lated in the annuity fund. Such a person is not enrolled as a member 
until the entire amount of back assessments is paid. Logically, the situ- 
ation would seem to be similar in the case of a teacher who is compelled 
to become a member of the Association with reference to the right to 
receive the benefits thereof. There is no statute covering the exact point 
at issue, and the law most nearly applicable is that above cited. The 
whole theory and purpose of the law, as indicated throughout, is to confer 
its benefits upon teachers only when they have completely complied with 
its provisions, and if a teacher has not paid the full amount due at a 
given time it does not seem consistent with the purpose of the law that 
he should be permitted to receive its benefits. The mere fact that a 
school board or committee has failed to deduct from a teacher's salary 
the amounts due from time to time, as required by law, does not in any 
way alter the situation. The amounts are due regardless of whether or 
not the school board performs the mechanical details of deducting them. 
4. In my opinion, the rule adopted on September 29, 1925, is within 
the power of the Board. Section 8 (2) of said chapter 32 provides that 
"the board may make by-laws and regulations consistent with law." 
In my opinion, it is well within the scope of the power of the Board to 
enact the rule referred to, although as to its desirability I, of course, 
make no comment. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — Fraternal Organizations — Certificates. 

A final certificate may not be granted to a fraternal organization, under 
G. L., c. 176, which has already made contracts for the payment of 
death or disability benefits or has made such contracts or payments 
for death before the provisions of G. L., c. 176, § 8, have been 
complied with. 

July 3, 1929. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — You have sent me a letter which, in part, is as follows: — 

"G. L., c. 176, §§ 6-9, inclusive, regulate the formation and author- 
ization of domestic fraternal benefit societies. Section 8 provides, in part, 
that no such society shall incur any liability except for advance payments 
made by applicants for membership, nor pay or allow any death or dis- 
ability benefits until it has performed certain acts, and that upon the 
presentation of satisfactory evidence that the society has complied with 
all the provisions of said chapter, the Commissioner shall issue to the 
society a certificate to that effect. 

A certain society in the process of formation has received a preliminary 
certificate under said section 8 but has not received the final certificate 
required under said section. It has complied with all the requirements of 
section 8 but it or its incorporators have in fact made contracts for the 



108 P.D. 12. 

payment of death or disability benefits or have paid such benefits contrary 
to the foregoing prohibition of said section. It now apphes for a final 
certificate." 

You request my opinion upon the two following questions relative to 
the matters which you have set forth: — 

"1. Is the Commissioner precluded as a matter of law from granting 
a final certificate to a society, under said section 8, which has fulfilled 
all the requirements of said section 8 but which has admittedly made 
contracts for the payment of, or has paid, death or disabihty benefits 
contrary to said section, on the ground that the society has not complied 
with all the provisions of said chapter 176? 

2. If you answer the preceding question in the negative, is the society 
as a matter of right entitled, on the facts set forth in the preceding ques- 
tion, to receive a final certificate in such circumstances, or is the issue 
thereof discretionary with the Commissioner?" 

I answer your first question in the affirmative. 

G. L., c. 176, § 8, provides, with relation to an unincorporated fraternal 
benefit society, the incorporators of which have held their first meeting, 
that — 

"The commissioner shall then furnish the incorporators of any such 
society, if on the lodge plan, with a preliminary license, authorizing 
it to solicit members for the purpose of completing its organization. It 
shall collect from each applicant the amount of not more than one peri- 
odical benefit assessment or payment, in accordance with its tables of 
rates as provided by its constitution and by-laws, and shall issue to every 
such applicant a receipt for the amount so collected. But no such society 
shall incur any liability other than for such advance payments, nor issue 
any benefit certificate, nor pay or allow, or offer or promise to pay or 
allow, to any person any death or disability benefit until actual bona fide 
applications for death or disability benefit certificates, as the case may 
be, have been secured from at least five hundred persons, and all such 
applicants for death benefits shall have been regularly examined by 
legally qualified practicing physicians, and certificates of such examina- 
tions have been duly filed and approved by the chief medical examiner 
of the society; nor until there shall be established ten subordinate lodges 
or branches, in which said five hundred apphcants have been initiated; 
nor until there has been submitted to the commissioner, on oath of the 
president and secretary or corresponding oflacers of such society, a list 
of the said applicants, giving their names, addresses, date of examina- 
tion, date of approval, date of initiation, name and number of the 
subordinate branch of which each applicant is a member, amount of 
benefits to be granted, and rate of regular payments or assessments, 
which for societies offering death benefits shall not be lower for death 
benefits than those required by the National Fraternal Congress Table 
of Mortality as adopted by the National Fraternal Congress August 
twenty-third, eighteen hundred and ninety-nine, or any higher standard 
at the option of the society, with an interest assumption not higher 
than four per cent per annum; nor until it shall be shown to the 
commissioner, by the sworn statement of the treasurer or corresponding 
officer of such society, that at least five hundred applicants for death 
benefits have each paid in cash one regular payment or assessment as 
herein provided, and the payments in the aggregate shall amount to at 



P.D. 12. 109 

least twenty-five hundred dollars, all of which shall be credited to the 
mortuary or disability fund on account of the applicants, and no part of 
which may be used for expenses. Such advance payments shall, during 
the period of organization, be held in trust for the applicants, and if the 
organization is not completed within one year as hereinafter provided, 
shall be returned to them. The commissioner may make such examina- 
tion and require such further information as he deems advisable; and 
upon presentation of satisfactory evidence that the society has complied 
with all the provisions of this chapter, he shall issue to the society a 
certificate to that effect." 

In addition to the information contained in your letter, you have 
advised me that the incorporators of the society as to which your inquiries 
are particularly addressed have both made promises to pay death and 
disability benefits and have paid such benefits before actual bona fide 
applications for certificates had been secured from at least five hundred 
persons, and have actually in fact paid death benefits before the medical 
examinations required by the said statute had been made and certificates 
thereof filed. 

If the explicit provisions of said section 8 have been violated in the 
ways above described, it cannot be said that the society has complied 
with all the provisions of chapter 176, and, accordingly, satisfactory 
evidence of comphance with the provisions of said chapter, upon which 
the issuance of the certificate mentioned in said section 8 is predicated, 
cannot be before the Commissioner so as to require him to issue such 
certificate. 

Moreover, payment of benefits before receipt of the Commissioner's 
certificate, which can from the nature of the case be made only from 
''advance payments," as those words are used in said section 8, has 
prevented the society from a compliance with that provision of section 8 
which requires that advance payments "shall, during the period of organ- 
ization, be held in trust for the applicants," to be returned if the organ- 
ization is not completed. 

My answer to your first inquiry precludes the necessity of answering 
your second question. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Public Welfare — Minor Children — Settlements. 

After a divorce, when the children of a marriage have a settlement within 
the Commonwealth, derived from their mother, they will not lose it 
if the father has no settlement in the Commonwealth. 

July 11, 1929. 

Hon. Richard K. Conant, Commissioner of Public Welfare. 

Dear Sir: — You have asked my opinion in a communication which 
reads as follows : — 

" I respectfully request your opinion whether or not three minor children, 
who now live in Athol, have a legal settlement within the Commonwealth. 
The father of the children was granted a decree of divorce which becomes 
absolute on July 21, 1929, and the court awarded the custody of the three 
children to him. He was born in Wisconsin May 8, 1894, and has never 
resided in any town in Massachusetts long enough to gain a legal settle- 



no P.D. 12. 

ment. The mother of the three children was born in Erving, Massachu- 
setts, February 4, 1902, and she admittedly has a legal settlement in that 
town." 

I assume that your question relates to the settlement as of the time, 
July 21st, when the decree of divorce becomes absolute. G. L., c. 116, § 1, 
cl. Third, reads: — 

"Legitimate children shall follow and have the settlement of their father 
if he has one within the commonwealth, otherwise they shall follow and 
have the settlement of their mother if she has one; if the father dies during 
the minority of his children they shall thereafter follow and have the 
settlement of the mother. Upon the divorce of the parents the minor 
children shall follow and have the settlement of the parent to whom the 
court awards their custody."" 

The provision in the above-quoted section in regard to divorce was 
added by St. 1911, c. 669. Under R. L., c. 80, § 1, cl. Second, which con- 
tained only what is now the first part of the section of the General Laws 
above quoted, the children in the case in question would clearly, because 
of the divorce, not lose their settlement in the town of Erving. In my 
opinion, the terms used in the provision added by the act of 1911 cannot 
properly be construed as changing the result. The word "settlement" 
must mean settlement within this Commonwealth; and since in the case 
in question the father, to whom custody is given, has no settlement within 
the Commonwealth, the provision has, by its terms, no application. The 
provision does not purport in terms to change the law in a case where the 
parent to whom custody is given does not have a settlement, and, in my 
opinion, no such meaning can be read into it. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Physician — Certificate of Registration — Town. 

A physician must present his certificate of registration to the city or town 
clerk of each city or town in which he establishes an office. 

July 16, 1929. 
Mr. William F. Craig, Director of Registration. 

Dear Sir: — You request my opinion as to whether it is necessary, 
under G. L., c. 112, § 8, for a physician to record his certificate of regis- 
tration with the city or town clerk "each time he establishes a new business 
address." 

Said section 8 provides, in part: — 

"No person shall enter upon, or continue in, the practice of medicine 
within the commonwealth until he has presented to the clerk of the town 
where he has, or intends to have, an office or his usual place of business, 
his certificate of registration as a physician in the commonwealth." 

I assume that your question refers to a case where a physician, who has 
recorded his certificate in one town, moves to or opens an office in another 
town. There seems to be nothing in the statute to require a new record 
where the physician takes a new business address within the same town. 
The statute, in my opinion, requires the certificate to be recorded in 
each town in which the physician establishes an office. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. Ill 

Insurance — Life Policies — Incontestability — Forms. 

A clause eliminating hazards of aviation from the coverage of a life policy 
may not be disapproved upon that ground alone. 

Aug. 8, 1929. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — You have asked my opinion, in the first portion of a 
written communication, upon several questions relative to the interpre- 
tation and application of the incontestability provision concerning policies 
of life insurance embodied in G. L., c. 175, § 132, cl. 2. You have directed 
my attention particularly to certain forms of riders or endorsements in- 
tended to be attached to life policies, as to which your approval has been 
requested and which are before you for consideration. 

The first two questions which you have propounded in relation to this 
portion of your communication are not limited in their scope to the forms 
of riders as to which you are now required to act, but are general in their 
nature and deal with possible and hypothetical states of fact which may 
or may not be called to your attention in the future and which are not 
necessarily governed by precisely the same principles of law as are appli- 
cable to the specific problems which arise upon the matters now actually 
before you for determination. I therefore do not at the present time deem 
it incumbent upon me to answer your questions numbered I, 1 and 2. 

I. 

You advise me in your communication as follows : — 

''I. Certain life insurance companies have filed with me, and have 
requested me to approve, under said section 132 and section 192 of said 
chapter 175, certain forms of riders or endorsements which they propose 
to attach to forms of life or endowment policies to be issued in this Com- 
monwealth, said policy forms having been duly approved by the Commis- 
sioner under said section 132 and containing the provision required by 
clause 2 of said section 132. 

These forms of riders or endorsements read as follows : — 

'(1) Death as a result of service, travel or flight in any species of air- 
craft, except as a fare-paying passenger, is a risk not assumed under this 
contract; but, if the Insured shall die as a result, directly or indirectly, 
of such service, travel or flight, the Company will pay to the beneficiary 
the reserve on this contract. 

(2) Death or disability resulting directly or indirectly from being in, 
on or about or operating or handling any vehicle or mechanical device for 
aerial navigation or in falling therefrom or therewith is a loss not assumed 
under any of the terms of this Policy ; but in the event of such death the 
Company will pay to the beneficiary the amount of the reserve on this 
Policy. 

(3) In the event of the death of the Insured within a period of ten years 
from the date of issue of this policy resulting directly or indirectly from 
travel, service or flight in any species of aircraft, the Company's liability 
under this contract shall be limited to the reserve guaranteed by the 
policy.' " 

With relation to the foregoing you have asked me the following ques- 
tions: — 



112 P.D. 12. 

"3. May the Commissioner, under G. L., c. 175, §§ 132 and 192, as 
amended, lawfully approve any form of policy of life or endowment in- 
surance, except an industrial policy, containing in substance the provisions 
required by clause 2 of said section 132 and the provisions of the forms of 
riders or endorsements set forth in I, supra, and numbered (1) and (2), 
or the form of the said riders or endorsements for attachment to the afore- 
said forms of poHcies? 

4. May the Commissioner, as aforesaid, lawfully approve any such form 
of policy containing in substance the provisions required by said clause 
2 and the provisions of the form of rider or endorsement set forth in I, 
swpra, and numbered (3), or the form of the said rider or endorsement for 
attachment to the aforesaid forms of policies?" 

I am also advised that one of your predecessors in office has at some 
time in the past approved riders similar to one of the three forms described 
in your letter, so that there would not appear to be an established depart- 
mental interpretation of the incontestable clause of G. L., c. 175, § 132, 
cl. 2, adverse to the approval of such riders. 

G. L., c. 175, § 132, cl. 2, as amended, reads as follows: — 

"A provision that the policy shall be incontestable after it has been in 
force during the lifetime of the insured for a period of two years from its 
date of issue except for non-payment of premiums or violation of the con- 
ditions of the policy relating to military or naval service in time of war and 
except, if the company so elects, for the purpose of contesting claims for 
total and permanent disability benefits or additional benefits specifically 
granted in case of death by accident." 

G. L., c. 175, § 192, as amended, in its pertinent parts is as follows: — 

"All provisions of law relative to the filing of policy forms with, and the 
approval of such forms by, the commissioner shall also apply to all forms 
of riders, endorsements and applications designed to be attached to such 
policy forms and when so attached to constitute a part of the contract." 

The incontestabilit}^ of the policy as provided for in said section 132, 
clause 2, precludes a defense that the contract made between the parties 
is not vahd and binding. It does not preclude a defense that the subject 
matter of a claim is outside the scope of the contract as written. It does 
not enlarge the coverage of the contract, neither does it of itself determine 
the risk or hazard which the parties to the contract elect to include therein. 

The policy with its rider or endorsement constitutes the contract of 
insurance made between the parties, and where the risk of aviation haz- 
ards is limited in, or eliminated from, such contract the fact that the con- 
tract as made is incontestable in no way tends to make illegal the terms 
of the agreement as written by the mutual consent of the parties in the 
policy and endorsement. 

It cannot fairly be said that because the statute sets forth certain ex- 
ceptions to incontestability of a policy no contract may be made which 
by the mutual agreement of insured and insurer lessens the extent of the 
coverage by removing those connected with aviation from the scope of 
coverage. 

The riders or endorsements with relation to aviation, set forth above as 
(1), (2) and (3), do not appear to be contrary to any provisions of law, and 
I answer your questions I, 3 and 4, in the affirmative. 



P.D. 12. 113 

11. 

You have advised me in your communication as follows : — 

"II. Certain life insurance companies are issuing in this Common- 
wealth a form of industrial life policy which contains a provision that the 
policy — 

'shall be incontestable after it has been in force during the lifetime of 
the Insured, for a period of two years from the date of issue, except for 
nonpayment of premiums, fraud or misstatement of age'; 

and further provisions which read as follows : — 

'If, (1) the Insured is not alive or is not in sound health on the date 
hereof; or if (2) before the date hereof, the Insured has been rejected for 
insurance by this or by any other company, order or association, or has, 
within two years before the date hereof, been attended by a phj'sician for 
any serious disease or complaint, or, before said date, has had any pul- 
monary disease, or chronic bronchitis or cancer, or disease of the heart, 
liver or kidneys, unless such rejection, medical attention or previous dis- 
ease is specifically recited in the "Space for Endorsements" on page 4 in a 
waiver signed by the Secretary; or if (3) any Policy on the life of the In- 
sured hereunder has been previously issued by this Company and is in 
force at the date hereof, unless the number of such prior Policy has been 
endorsed by the Company in the "Space for Endorsements" on page 4 
hereof (it being expressly agreed that the Company shall not, in the ab- 
sence of such endorsement, be assumed or held to know or to have known 
of the existence of such prior Policy, and that the issuance of this Pohcy 
shall not be deemed a waiver of such last mentioned condition), then, in 
any such case, the Company may declare this Policy void and the liability 
of the Company in the case of any such declaration or in the case of any 
claim under this Policy, shall be limited to the return of premiums paid 
on the Policy, except in the case of fraud, in which case all premiums will 
be forfeited to the Company.' " 

In relation thereto you have asked me this question : — 

"5. May the Commissioner, under said section 132, as amended, law- 
fully approve a form of industrial life policy containing the provision for 
incontestability and the other provisions set forth in II, supra, or should 
such a form of policy be disapproved, as a matter of law, on the ground 
that any condition, a violation of which, existing prior to the expiration 
of the period of time specified in said provision for incontestability and 
continuing or occurring, thereafter, relieves the company from liability, 
is repugnant to the provision for incontestabilitj^?" 

G. L., c. 175, § 132, does not require the insertion of a clause as to in- 
contestability in a policy of industrial insurance. 

An incontestable clause is a part of the industrial life policy under 
consideration, but various provisions are introduced into the contract by 
which the insurer may avoid liability. In each instance the exceptions 
to the incontestability of the contract, introduced into the policy, relate 
to facts, circumstances or events prior to, and in some instances leading 
up to, the making of the contract. Such exceptions would be plainly repug- 
nant to a statutory requirement that such policies should contain an in- 
contestable clause, such as is required for the life policies, which have 
previously been considered. In this instance, however, the incontestable 



114 P.D. 12. 

clause, modified by the exceptions, constitutes, when read in connection 
with each other, a term of the pohcy fixed by agreement of the insured 
and insurer which is not contrary to any provision of law governing the 
form of industrial policies. 

I therefore answer your fifth question in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



State Hospital — Gardner State Colony — Superintendent — Inmates. 

A superintendent of a State hospital or colony has authority to allow 
patients to leave the grounds, under proper supervision, for short 
periods, under conditions beneficial to their health. 

Sept. 7, 1929. 

Dr. George M. Kline, Commissioner of Mental Diseases. 

Dear Sir : — You have asked my opinion relative to the authority 
and liability of the superintendent of the Gardner State Colony in a 
communication as follows : — 

"Your opinion is respectfully requested on certain questions raised by 
Dr. Charles E. Thompson, Superintendent of the Gardner State Colony. 

He states that a short while ago after sending a number of patients to 
attend a circus at Fitchburg he became concerned as to possible legal 
liability should injuries occur to them. Inasmuch as this procedure is 
one that might arise in any institution, the Department feels that the 
subject is of sufficient importance to ask for an opinion on certain specific 
questions. 

(1) Has the superintendent authority legally to allow a group of pa- 
tients to leave the confines of an institution temporarily for recreation, 
entertainment or similar purpose? 

(2) What liability, if any, attends a superintendent or other oflficial in 
authority sending a patient or group of patients temporarily away from 
the confines of an institution for recreation, entertainment or similar 
purpose should injury occur to them, or should such patients injure 
persons or property? 

(3) Is the State liable legally in such a case?" 

1. I answer your first question in the affirmative. The Gardner State 
Colony is an institution under the control of your Department, listed 
under G. L., c. 123, as a State hospital to which insane persons may be 
committed. The authority to act, in the exercise of a wise discretion, 
for the benefit of such insane persons, vested in the Department and in 
its superintendents of State hospitals, is necessarily very broad. I cannot 
say, as a matter of law, that such a superintendent is not acting within his 
implied authority in allowing a group of patients, whose condition is such 
that they may reasonably be expected to receive benefit therefrom, to 
leave the confines of a State hospital for a short period of recreation or 
entertainment, when properly supervised and guarded. Of course, in 
any given instance the facts connected with each individual patient's 
well-being and safety must be considered by a superintendent. 

2. Your second question asks for a somewhat general statement of law 
without reference to any specific facts. Speaking broadly, an official in 
charge of patients of a State hospital may be liable individually for acts 



P.D. 12. 115 

of negligence on his part which are the direct cause of injury to such 
patients or to the person or property of others. In taking action in rela- 
tion to the care of his patients such official is bound to exercise such 
reasonable care as may properly be expected of a person occupying such 
a position of responsibility, having regard especially to the mental 
characteristics of those under his care. 

3. The Commonwealth cannot be sued in its own courts for injuries 
or damages sustained by persons through the negligence of officials such 
as you describe in your letter. Claims with relation to such injuries or 
damages might, under certain circumstances, which it is not necessary 
for me to attempt to describe in detail, require the disbursement of money 
by the Commonwealth. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Citizenship — Registration of Voters. 

The burden of proving citizenship is upon a person applying for registra- 
tion as a voter. 
The registrars of voters are to determine the question of citizenship upon 
such proof. 

Sept. 23, 1929. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You ask my opinion on the following question: — 

"Have registrars of voters or election commissioners authority to 
register as a voter in this Commonwealth a person whose only right to 
citizenship is derived through naturalization of husband or father, upon 
presentation of certificate of naturalization of such husband or father, or 
must such person present a certificate obtained after application of said 
section 33 (45 Stat, at L., pt. I, p. 1512)?" 

You state in your communication that — 

"In the case of a wife, or a child who was a minor at the time of natu- 
ralization of his parent, and who is otherwise qualified to register, it is 
the present practice, I believe, of registrars of voters and election com- 
missioners to require the production for inspection of the papers of the 
husband or parent. Such papers in late years bear the names of wife and 
minor children"; and that "the new form to be used for certificate of 
naturalization does not contain any blank for statement of wife or minor 
children, and election officials are apprehensive and in disagreement 
concerning proof of citizenship to be required." 

The laws of the United States conferring citizenship upon minor chil- 
dren of naturalized parents are found in the United States Code, Title 8, 
chapter 1, sections 7 and 8, as follows: — 

"Section 7. The children of persons who have been duly naturahzed 
under any law of the United States, or who, previous to the passing of 
any law on that subject, by the Government of the United States, may 
have become citizens of any one of the States, under the laws thereof, 
being under the age of twenty-one years at the time of the naturalization 
of their parents, shall, if dwelling in the United States, be considered as 
citizens thereof; and the children of persons who now are, or have been, 
citizens of the United States, shall, though born out of the limits and 



116 P.D. 12. 

jurisdiction of the United States, be considered as citizens thereof. 
(R. S. § 2172.) 

Section 8. A child born without the United States of ahen parents 
shall be deemed a citizen of the United States by virtue of the naturaliza- 
tion of or resumption of American citizenship by the parent, where such 
naturalization or resumption takes place during the minority of such 
child. The citizenship of such minor child shall begin at the time such 
minor child begins to reside permanently in the United States. (Mar. 2, 
1907, c. 2534, § 5, 34 Stat. 1229.)" 

In passing upon these statutes the Circuit Court of Appeals, Second 
Circuit, in United States ex rel. Patton v. Tod, 297 Fed. 385, said: — 

"We have a simple sj^stem under which each statute confers rights in 
two different situations. Under R. S. U. S. § 2172 (U. S. C, Title 8, 
c. 1, § 7, above quoted), a foreign-born minor child dwelling in the United 
States at the time of the naturalization of the parent automatically 
becomes an American citizen. Under section 5 of the Act of March 2, 
1907 (U. S. C, Title 8, c. 1, § 8, above quoted), a foreign-born child, not 
in the United States when the parent is naturalized, becomes a citizen 
only from such time as, while still a minor, it begins to reside perma- 
nently in the United States." 

A person claiming to be a citizen by virtue of the naturalization of his 
parent can establish that fact, it seems to me, by producing substantial 
proof of his minority at the time of naturalization of the parent and that 
he was either dwelling in this country at that time or that he began to 
reside permanently in the United States during his minority. 

The law^ relative to citizenship of a wife of a naturalized person, prior 
to Act of Congress approved September 22, 1922, provided (Rev. Stat. 
1874, § 1994) : — 

"Any woman who is now or may hereafter be married to a citizen of 
the United States and who might herself be lawfully naturalized, shall be 
deemed a citizen." 

A similar act has been construed in Kelly v. Owen, 7 Wall. 496, 498, to 
confer — 

"The privileges of citizenship upon women married to citizens of the 
United States, if they are of the class of persons for whose naturali- 
zation the previous acts of Congress provide. The terms 'married,' or 
'who shall be married,' do not refer, in our judgment, to the time when 
the ceremony of marriage is celebrated, but to a state of marriage. They 
mean that, whenever a woman, who under previous acts might be natu- 
ralized, is in a state of marriage to a citizen, whether his citizenship existed 
at the passage of the act or subsequently, or before or after marriage, she 
becomes, by that fact, a citizen also." 

Rev. Stat. 1874, § 1994, was repealed by Act of Congress approved 
September 22, 1922. The repealing statute expressly provides that 
citizenship acquired thereunder "shall not terminate." See U. S. C, 
Title 8, c. 9, § 368. 

G. L., c. 51, § 44, provides, in part: — 

"The registrars shall examine on oath an applicant for registration 
relative to his qualifications as a voter." 

This statute places the burden of proving citizenship upon the person 



P.D. 12. 117 

applying for registration. It does not prescribe the manner in which the 
proof shall be established. The sufficiency of such proof is to be deter- 
mined by the registrars in each individual case. 

The prevailing practice of the registrars, in cases where applicants for 
registration claim citizenship by virtue of the naturalization of a parent 
or husband, of requiring the production by the appUcant of the naturaliza- 
tion certificate of the parent or husband, is one way in which the question 
of citizenship of the applicant may be determined. 

Another way in which the question may be determined is by the produc- 
tion by the applicant of a "certificate of citizenship" issued by the Com- 
missioner of Naturahzation under section 9 of the Act of March 2, 1929 
(45 Stat, at L., pt. I, p. 1512), which section provides as follows: — 

"Any individual over twenty-one years of age who claims to have 
derived United States citizenship through the naturalization of a parent, 
or a husband, may, upon the payment of a fee of $10, make apphcation 
to the Commissioner of Naturalization, accompanied by two photographs 
of the applicant, for a certificate of citizenship. Upon obtaining a certifi- 
cate from the Secretary of Labor showing the date, place, and manner of 
arrival in the United States, upon proof to the satisfaction of the com- 
missioner that the applicant is a citizen and that the alleged citizenship 
was derived as claimed, and upon taking and subscribing to, before a 
designated representative of the Bureau of Naturalization within the 
United States, the oath of allegiance required by the naturalization laws 
of a petitioner for citizenship, such individual shall be furnished a certifi- 
cate of citizenship by the commissioner, but only if such individual is at 
the time within the United States. In all courts, tribunals, and public 
offices of the United States, at home and abroad, of the District of Colum- 
bia, and of each State, Territory, or insular possession of the United 
States, the certificate of citizenship issued under this section shall have 
the same effect as a certificate of citizenship issued by a court having 
naturahzation jurisdiction." 

An examination of the legislative history of the Act of March 2, 1929 
(45 Stat, at L., pt. I, p. 1512), leads me to believe that Congress did not 
intend that all persons claiming citizenship through the naturalization of 
a parent or husband should be required to secure a "certificate of citizen- 
ship" to entitle them to the privileges of native born or naturalized 
Americans. I believe that until and unless the Legislature of the Com- 
monwealth, by legislative act, requires the production of a "certificate 
of citizenship" issued under said Act of March 2, 1929, to establish 
citizenship for the purposes of registration as voters, the registrars of 
voters or election commissioners cannot require an applicant for registra- 
tion to procure such a "certificate of citizenship" if the citizenship of 
such applicant can be proved in any other manner. I am therefore of 
the opinion that registrars of voters or election commissioners have 
authority to register as a voter in this Commonwealth a person whose 
only right to citizenship is derived from naturalization of husband or 
parent, upon presentation of a certificate of the naturahzation of such 
husband or parent, if they are satisfied that citizenship was derived in 
that manner; and if, in their judgment, the proof offered is not sufficient, 
they may require a "certificate of citizenship," but they cannot arbi- 
trarily require the production of such certificate in all cases. 
Yours very truly, 

Joseph E. Warner, Attorney General. 



118 P.D. 12. 

Fire Marshal — Rules — Enforcement. 

It is the duty of both the State Fire Marshal and the local authorities to 
prosecute violations of regulations made under G. L., c. 148. 

Oct. 3, 1929. 
Gen. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir: — You state that certain persons in the city of Lynn are 
violating the regulations of the State Fire Marshal relative to the use of 
inflammable fluids and compounds in the manufacture of shoes, that the 
Marshal has delegated to the head of the fire department of said city "the 
carrying out of any lawful rule, order or regulation established by the Fire 
Marshal," that the city officials have taken the position that it is not their 
duty but the duty of the Fire Marshal to enforce the regulations, and 
that accordingly they are not prosecuting said violations. You request 
my opinion as to "whether it is the duty of the State Fire Marshal to 
execute and enforce" these regulations, "or whether it is incumbent upon 
the Lynn authorities to execute and enforce these regulations under the 
authority vested in them by the aforesaid delegation of power." 

The regulations in question are made under authority of G. L., c. 148, 
§ 30, which authorizes the Marshal, among other things, to inspect or 
regulate the keeping or use of inflammable fluids and compounds. Section 
31 of said chapter provides: — 

"The marshal may delegate the granting and issuing of any licenses or 
permits authorized by sections thirty to fifty-one, inclusive, or the carrying 
out of any lawful rule, order or regulation of the department, or any in- 
spection required under said sections, to the head of the fire department 
or to any other designated officer in any city or town in the metropolitan 
district." 

Acting under said section 31 the Marshal has delegated to the head of 
the fire department of the city of Lynn — 

"The right to issue any permit authorized by G. L., c. 148, §§ 30-51, 
inclusive, the carrying out of any lawful rule, order or regulation estab- 
lished by the Fire Marshal, and the right to make any inspection required 
under said sections." 

Section 51 of said chapter 148 imposes the penalty of a fine for violation 
of rules made under section 30. 

The regulations in question "have the force and effect of law." Guinan 
V. Famous Players-Lashj Corporation, Mass. Adv. Sh. (1929) 1297, 1305. 

In my opinion, it is the duty of both the State Fire Marshal and the local 
authorities to see to it that these violations of law are prosecuted. If it 
appears to the Marshal that the local authorities are failing to prosecute 
violations of law, it is his duty as a pubhc official to cause such violations 
to be prosecuted. The fact that the Marshal has delegated the carrying 
out of these regulations to local authorities does not deprive him of the 
power or free him from the duty of acting in cases where it becomes known 
to him that the local authorities are failing to act. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 119 

Fire Marshal — Municipalities — Ordinances — Fire Prevention. 

Cities and towns have no power to make ordinances regulating storage 
and use of explosives and inflammable fluids within the Metropolitan 
Fire Prevention District, but may regulate by ordinances for fire 
prevention in connection with the construction of buildings. 

Oct. 8, 1929. 

Special Commission for Investigation of the Laivs, Rules and Regulations 
relating to Fire Prevention.. 

Gentlemen : — You request my opinion upon the following questions : — 

"1. Ha,ve municipalities within the Metropolitan Fire Prevention Dis- 
trict authority to adopt ordinances, in addition to the rules of the State 
Fire Marshal and the Department of Public Safety, relating to fires and to 
fire prevention? 

2. Have municipalities outside the Metropolitan Fire Prevention Dis- 
trict authority to adopt ordinances, in addition to the rules of the State 
Fire Marshal and the Department of Public Safety, relating to fires and 
to fire prevention?" 

Under G. L., c. 143, § 3, everj^ city, except Boston, and every town 
accepting the statute is authorized, "for the prevention of fire," among 
other things, to regulate by ordinance or by-law "the inspection, materials, 
construction, alteration, repair, height, area, location and use of buildings 
and other structures." 

By G. L., c. 148, § 39, the Fire Marshal is given certain limited powers 
to make rules within the metropolitan district "relating to fires, fire pro- 
tection and fire hazard." By section 42 the Fire Marshal may require 
reports from heads of fire departments of violations "of ordinances, by- 
laws, rules or orders made by the various cities and towns, or by the Mar- 
shal, relating to fires, fire hazard and fire protection." The statute first 
cited, giving to cities and towns power to regulate as therein stated, is 
in full force and effect. It has not been abrogated by any delegation of 
authority to regulate given to the State Fire Marshal or to the Depart- 
ment of Public Safety, either within or without the metropolitan district. 
See Storer v. Downeij, 215 Mass. 273; Kilgour v. Gratfo, 224 Mass. 78. 

As to any ordinances or by-laws relating to the storage or use of ex- 
plosives or inflammable compounds, assuming that such ordinances or 
by-laws cannot be brought within the scope of G. L., c. 143, § 3, above 
referred to, a different question is presented. Under the Revised Laws 
cities and towns, in addition to the power given them to regulate, for the 
prevention of fire, the inspection, materials, construction, alteration and 
use of buildings and other structures (R. L., c. 104, § 1, now G. L., c. 143, 
§ 3), were authorized to adopt ordinances, by-laws and regulations rela- 
tive to the storage and sale of camphine or any similar explosive or in- 
flammable fluid (R. L., c. 102, § 94), and also to make certain orders rela- 
tive to storage of gunpowder and use of certain explosives (R. L., c. 102, 
§§ 89 and 91). 

But by St. 1904, c. 370, § 1, it was provided that — 

"The powers conferred on city councils of cities and selectmen of towns 
by chapter one hundred and two of the Revised Laws, to regulate the 
keeping, storage, use, manufacture or sale of gunpowder, dynamite or 



120 P.D. 12. 

other explosives and inflammable fluids, shall hereafter be exercised by the 
fire marshal's department of the district police." 

By section 5 it was provided that — 

"So much of chapter one hundred and two of the Revised Laws as is 
inconsistent herewith is hereby repealed." 

By St. 1914, c. 795, which created the office of Fire Prevention Com- 
missioner for the Metropolitan District, it was provided in section 3 that — 

"All existing powers, in whatever officers, councils, bodies, boards or 
persons, other than the general court and the judicial courts of the com- 
monwealth, they may be vested, to license persons or premises, or to grant 
permits for or to inspect or regulate or restrain the keeping, storage, use, 
manufacture, sale, handling, transportation or other disposition of gun- 
powder, dynamite, nitroglycerine, camphine or any similar fluids or com- 
pounds, crude petroleum or any of its products, or any explosive or in- 
flammable fluids or compounds, tablets, torpedoes, rockets, toy pistols, 
fireworks, firecrackers, or any other explosives, and the use of engines and 
furnaces described in section seventy-three of chapter one hundred and 
two of the Revised Laws, are hereby transferred to and vested in the 
commissioner." 

The power of the Department of Public Safety, as now constituted, to 
make rules, applicable outside of the metropolitan district, governing the 
storage or use of explosives or inflammable fluids or compounds is found 
in G. L., c. 148, § 10, which reads as follows: — 

"The department may make rules and regulations for the keeping, 
storage, use, manufacture, sale, handling, transportation or other dis- 
position of gunpowder, dynamite, crude petroleum or any of its products, 
or explosive or inflammable fluids or compounds, tablets, torpedoes or any 
explosives of a like nature, or any other explosives, and may prescribe the 
materials and construction of buildings to be used for any of the said 
purposes, except that cities and towns may by ordinances or by-laws 
prohibit the sale or use of fireworks or firecrackers within the city or town, 
or may limit the time within which firecrackers and torpedoes may be 
used." 

The power of the Marshal to make rules governing the storage or use of 
explosives or inflammable fluids and compounds within the metropolitan 
district is found in G. L., c. 148, § 30, in the following words: — 

"The marshal shall have within the metropolitan district the powers 
given by sections ten, thirteen, fourteen, twenty, twenty-one and twenty- 
two to license persons or premises, or to grant permits for, or to inspect or 
regulate, the keeping, storage, use, manufacture, sale, handhng, transpor- 
tation or other disposition of gunpowder, dynamite, nitroglycerine, 
camphine or any similar fluids or compounds, crude petroleum or any of 
its products, or any explosive or inflammable fluids or compounds, tab- 
lets, torpedoes, rockets, toy pistols, fireworks, firecrackers, or any other 
explosives, and the use of engines and furnaces as described in section one 
hundred and fifteen of chapter one hundred and forty; provided, that the 
city council of a city or the selectmen of a town may disapprove the grant- 
ing of such a license or permit, and upon such disapproval the permit or 
license shall be refused. In Boston certificates of renewal of licenses as 



P.D. 12. 121 

provided in section fourteen shall be filed annually for registration with 
the fire commissioner, accompanied by a fee of one dollar." 

In my opinion, the terms of these statutes must be construed as divesting 
cities and towns of any power which they previously had to regulate the 
storage and use of explosives or inflammable fluids as such. Such powers 
to make rules and regulations became vested in the Fire Marshal's de- 
partment of the District Police, or afterwards, within the metropolitan 
district, in the Fire Prevention Commissioner; and to these powers the 
Department of Public Safety (or the State Fire Marshal) has succeeded. 
Gen. St. 1919, c. 350, § 99. 

As before stated, however, cities and towns may still, under G. L., 
c. 143, § 3, by ordinances or by-laws regulate, for the prevention of fire, 
the construction and use of buildings and other structures. (It will also 
be noted that under G. L., c. 148, § 30, the power of the Fire Marshal to 
license within the metropolitan district is subject to the approval of the 
local authorities.) 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Motor Vehicles — Length — Ways. 

Motor vehicles and trailers when used for transportation of poles, and 
various single units having an over-all length, inclusive of load, 
of not more than 60 feet, may operate on any public way. 

Oct. 14, 1929. 
Hon. Frank E. Lyman, Commissioner of Public Works. 

Dear Sir: — You have asked my opinion concerning the interpreta- 
tion of G. L., c. 90, § 19, as amended, with relation to two questions 
which you have set forth as follows : — 

" (1) If the Department should decide to designate localities or ways, 
as provided in this act, will it be possible to limit any such way to a 33- 
foot vehicle, or will the act of designation automatically carry with it 
authority for the use of such ways by vehicles which, when loaded with 
poles, have an over-all length of 60 feet? 

(2) If no designation is made by the Department under the provisions 
of this act, can motor vehicles loaded with poles, having an over-all 
length of 60 feet, be legally operated on any way without the 'special 
permit' mentioned in the tenth line of this act?" 

G. L., c. 90, § 19, as amended by St. 1929, c. 313, reads: — 

"No motor vehicle or trailer, the outside width of which is more than 
ninety-six inches or the extreme over-all length of which is more than 
twenty-eight feet, shall be operated on any way without a special permit 
so to operate from the board or officer having charge of such way or, in 
case of a state highway or a way determined by the department of public 
works to be a through route, from said department; provided, that such 
width may be exceeded by the lateral projection of pneumatic tires bej^ond 
the rims of the wheels for such distance on either side of the vehicle or 
trailer as will not increase its outside width above one hundred and two 
inches; and provided, further, that the extreme over-all length of such a 
vehicle or trailer when used in localities or on ways designated by the said 
department may exceed twenty-eight feet but not thirty-three feet, and 



122 P.D. 12. 

that, when used for the transportation of poles or single units of lumber or 
metal, such length may exceed twenty-eight feet but not sixty feet, except 
as authorized by a special permit granted as aforesaid. The aforesaid 
dimensions of width and length shall be inclusive of the load." 

Before the enactment of the amending act, St. 1929, c. 313, G. L., c. 90, 
§ 19, as then amended by St. 1927, c. 72, was as follows: — 

"No commercial motor vehicle, motor truck or trailer, the outside 
width of which is more than ninety-six inches or the extreme over-all 
length of which exceeds twenty-eight feet, shall be operated on any way 
without a special permit so to operate from the board or officer having 
charge of such way, or, in case of a state highway or a way determined by 
the department of public works to be a through route, from the commis- 
sioner of public works. The aforesaid dimensions of width and length 
shall be inclusive of the load." 

Accordingly, the law as it stood before the passage of St. 1929, c. 313, 
prohibited the operation on any way of a commercial motor vehicle or 
trailer having an over-all length, inclusive of its load, of more than 28 
feet, without a special permit. 

The amendment of section 19 by St. 1929, c. 313, in its first clause 
establishes precisely the same general prohibition as to over-all length of 
all motor vehicles and trailers as had been set forth for commercial motor 
vehicles and trailers immediately prior thereto, and then sets up certain 
exceptions to the general prohibition of an over-all length, inclusive of 
load, in excess of 28 feet, and these exceptions are: First, as to such 
vehicles when used in localities or on ways designated by the Departm.ent 
of Public Works, in which instance the maximum length may be 33 feet; 
and second, as to such vehicles "when used for the transportation of poles 
or single units of lumber or metal," in which latter instance the maximum 
length may be 60 feet. 

I am of the opinion that the second exception noted above, in favor of 
such vehicles as are used for the designated transportation purposes, is 
not limited to such vehicles so used when run upon designated ways or in 
designated localities, but applies to them wherever used upon the ways 
throughout the Commonwealth. I am constrained to think that such 
w\as the intent of the Legislature as expressed by the words of St. 1929, 
c. 313, by reason of the fact that the word "that" immediately follows 
the word "and," in the twenty-second line of said chapter, indicating, in 
connection with the context, a separation of the provisions which immedi- 
ately follow it from those employed just before in relation to designated 
ways and localities. I am confirmed in this view by the further fact that 
the provisions of the exceptions concerning motor vehicles on "designated" 
ways state that their length "may exceed twenty-eight feet but not 
thirty-three feet," and that the language with relation to motor vehicles 
engaged in the designated transportation is that their length "may 
exceed twenty-eight feet but not sixty feet." If the exception with rela- 
tion to the last-named class of vehicles had been intended by the Legisla- 
ture to be limited by the provisions connected with use on designated 
ways, the wording used would not have been as above quoted but would 
naturally have been, — "may exceed thirty-three feet but not sixty 
feet." 

In accordance with the foregoing considerations I answer your first 
question to the effect that, irrespective of a designation of localities or 



P.D. 12. 123 

ways by your Department, motor vehicles and trailers, "when used for 
the transportation of poles and single units of lumber or metal," having 
an over-all length, inclusive of load, of not more than 60 feet, may oper- 
ate in any locality and upon any public way, designated or undesignated; 
and that you have no authority to limit the use of any public way what- 
soever to 33-foot vehicles to the exclusion of those not over 60 feet, used 
in said transportation. 

I answer your second question in the afhrmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Chief of Police of Leominster. 
The chief of police of Leominster is within the civil service law and rules. 

Oct. 23, 1929. 
Hon. Elliot H. Goodwin, Commissioner of Civil Service. 
Dear Sir: — You have asked me the two following questions: — 

"1. Did the passage of Gen. St. 1918, c. 291, § 22, legahze the act of 
the town of Leominster in accepting St. 1911, c. 468, and place the chief 
of police of that town within the civil service classification? 

2. If the answer to question number one is in the affirmative, does the 
fact that Leominster became a city on January 3, 1916, prior to the passage 
of the 1918 amendment, affect the situation?" 

You advise me that on March 3, 1915, the town of Leominster voted to 
accept the provisions of R. L., c. 19, § 37, and "at the same time," but I 
assume somewhat thereafter, the town voted to accept the provisions of 
St. 1911, c. 468, which in effect classified the chief of pohce of the town 
under the civil service. 

An opinion of one of my predecessors in office, to which you refer in your 
communication and with which I agree, was given the Civil Service Com- 
mission under date of March 21, 1917 (not published), and was to the 
effect that the town of Leominster did not by its votes of March 3,. 1915, 
so accept St. 1911, c. 468, as to place its chief of police within the classified 
service. 

The reason for the result arrived at by the opinion was that the town, 
by its first vote of March 3, 1915, accepted only the provisions of R. L., 
c. 19, § 37, and not the whole of said chapter 19, and that since by the 
terms of St. 1911, c. 468, as it then read, the acceptance b}^ a town of 
St. 1911, c. 468, was not effective unless it had previously accepted all the 
provisions of R. L., c. 19, the action of the town did not in the then existing 
state of the law constitute a valid acceptance of St. 1911, c. 468. 

After the said opinion was rendered, the Legislature enacted in 1918 
an amendment to said St. 1911, c. 468, namely. Gen. St. 1918, c. 291, § 22, 
which reads as follows : — 

"Section one of chapter four hundred and sixty-eight of the acts of 
nineteen hundred and eleven is hereby amended by inserting after the 
word 'of in the ninth line the words — section thirty-seven of, — and by 
inserting at the end thereof the words — as applied to the police force 
thereof, — so as to read as follows : — Section 1 . The provisions of chap- 
ter nineteen of the Revised Laws, entitled 'Of the Civil Service', and all 
acts in amendment thereof and in addition thereto, and the civil service 



124 P.D. 12. 

rules made thereunder, and all acts now or hereafter in force relating to 
the appointment and removal of police officers, shall apply to the super- 
intendent, chief of pohce or city marshal in all cities except Boston, and 
in all towns that have accepted, or may hereafter accept, the provisions 
of section thirty-seven of said chapter nineteen as applied to the police 
force thereof." 

This statute made applicable to cities and towns which had accepted 
said section 37 only, all acts then or thereafter in force relative to chiefs 
of police upon acceptance of the statute of 1911. The town had pre- 
viously voted to accept St. 1911, c. 468, but its vote was ineffectual as an 
acceptance only because said statute as it then stood required the accept- 
ance of the whole of R. L., c. 19, as a prerequisite to the acceptance of 
St. 1911, c. 468. The town had in fact prior to its vote on the accept- 
ance of the statute of 1911, voted to accept said section 37 of R. L., c. 19. 
The effect of the amendment of the statute of 1911 by Gen. St. 1918, 
c. 291, § 22, was to make effective the vote of the town accepting said 
statute of 1911, by reason of its acceptance of said section 37. In my 
opinion, the intent of the Legislature in amending St. 1911, c. 468, was 
to give to the amended section a retroactive effect to the e.xtent above 
set forth. 

You advise me that Leominster became a city January 3, 1916, that is, 
prior to the passage of Gen. St. 1918, c. 291, § 22. The fact that it was so 
incorporated prior to the enactment of Gen. St. 1918, c. 291, § 22, is im- 
material. The city of Leominster is the same municipal corporation as 
the inhabitants of the town of Leominster were. By being incorporated 
as a city the identity of the municipal corporation is not lost {Higginson v. 
Turner, 171 Mass. 586, 591), and the acceptance of R. L., c. 19, § 37, and 
of St. 1911, c. 468, by the town in 1915 is an acceptance of said chapters 
by the city of Leominster, within the meaning thereof, in view of the 
effect of Gen. St. 1918, c. 291, already noted. 

I answer your first question to the effect that the passage of Gen. St. 
1918, c. 291, § 22, had the effect of making R. L., c. 19, and all acts in 
amendment thereof and in addition thereto, and the civil service rules 
made thereunder, and all acts in force at the effective date of said chapter 
291 and thereafter enacted, relating to the appointment and removal of 
police officers, applicable to the chief of police of Leominster. 

I answer your second question in the negative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

IncompatihilUy of Offices. 

The positions of register of probate of Hampden County and special 
justice of the District Court at Holyoke may both be held by one 
person. 

Nov. 4, 1929. 

His Excellency Frank G. Allen, Governor of the Commonwealth. 

Sir : — You have requested my opinion upon the following question of 
law : — 

"On October 30, 1929, the name of Russell L. Davenport, Esquire, of 
Holyoke, was submitted for the position of register of probate for the 
County of Hampden. For your information Mr. Davenport at the 



P.D. 12. 125 

present time is special justice of the District Court at Holyoke. If 
the Executive Council confirms the nomination of Mr. Davenport for the 
position of register of probate on November 6th, will it be constitutional 
for him to hold the two offices mentioned at the same time?" 

Mass. Const., pt. 2nd, c. VI, art. II, and Mass. Const. Amend. VIII 
set forth certain offices not more than one of which may be held by a single 
individual, and certain other offices not more than two of which may be 
held by a single individual. Certain other offices are described which 
may not be held by members of the General Court. 

The positions of register of probate for Hampden Count}^ and special 
justice of the District Court at Holyoke are not so designated in the 
Constitution but that they may be held by one individual. There 
appears to be no provision of statutor}- law making it illegal for one 
person to hold both of these offices, and I consequently advise you that 
it will be constitutional for the person whom you name in j^our letter to 
retain his office as said special justice while holding also the position of 
said register of probate. 

Ver}^ truly yours, 

Joseph E. Warner, Attorney General. 

Director — Two Positions — Text Books. 

A person may not hold the position of principal of the Massachusetts 
School of Art and State Director of Art Education if he has a direct 
or indirect pecuniary interest in the books or school supplies used 
in public schools. 

Nov. 15, 1929. 
Dr. Payson Smith, Commissioner of Education. 

.Dear Sir: — You have asked my opinion as to the application of 
G. L., c. 15, § 5, as it affects the services of a person employed as principal 
of the Massachusetts School of Art and State Director of Art Education, 
in so far as such person may have a pecuniary interest in books or supplies 
used in the public schools. 

G. L., c. 15, § 5, in its pertinent parts, reads as follows: — 

"Except in the case of the teachers' retirement board, the division of 
public libraries, the division of the blind and institutions under the 
department, the commissioner may appoint such agents, clerks and other 
assistants as the work of the department may require, may assign them 
to divisions, transfer and remove them and fix their compensation, but 
none of such employees shall have any direct or indirect pecuniary interest 
in the publication or sale of any text or school book, or article of school 
supply used in the public schools of the commonwealth." 

You have advised me that a single person is employed by your Depart- 
ment under one title or description but with two distinct lines of work, 
with dissimilar duties: namely, first, as principal of the State school of 
art, which you tell me corresponds in general scope of administration to 
that of a State normal school, and, second, as Director of Art Education; 
and I am informed that the duties of this latter position are not unlike 
the functions usually discharged by the agents appointed under the 
provisions of said section 5, except that they are confined to promotion 
of a single branch of education only, — that of art. In your letter to me 



126 PD. 12. 

you have described the duties which such person performs as Director 
of Art Education as follows : — 

"He visits the various towns and cities of the Commonwealth for the 
purpose of conferring with art supervisors and school officials on their 
art programs in the public schools; addresses groups of people on art 
subjects; confers with art supervisors and school officials; and conducts 
regional conferences of art supervisors." 

If the duties of the person who bears the title of principal of the Massa- 
chusetts School of Art and State Director of Art Education were confined 
to the administration of the School of Art, the prohibition of said section 
5 would not be applicable to such a person, for the reasons set forth in 
an opinion of one of my predecessors in office rendered to you August 5, 
1924 (VII Op. Atty. Gen. 495), inasmuch as it appears plain that in the 
capacity of such a principal alone he would not be an agent of the Depart- 
ment appointed under the authority of said section 5, but rather would 
be appointed by virtue of G. L., c. 73, § 1, as amended by St. 1926, c. 6. 
But the duties of the person who bears the said title embrace also duties 
such as visiting cities and towns and doing other acts particularly pre- 
scribed for agents of the Board under earlier statutes, now embodied in 
said section 5 (P. S., c. 41, § 9; R. L., c. 39, § 9). 

It would seem that in his capacity as State Director of Art Education 
he is acting as an agent of the Department, within the meaning of said 
section 5, and, though called a director, his appointment would appear 
to be that of an agent, made by virtue of the provisions of said section 5, 
especially as no specific statutory authority exists relative to the director- 
ship of art education, and no division of art education which would require 
a director as its head appears, from what you have advised me, to be in 
existence. 

Since, then, the position in question is, in part at least, that of an 
agent appointed under G. L., c. 1.5, § 5, the incumbent is subject to the 
terms of said section relative to pecuniar}^ interest in books and supplies. 

Consequently, I am constrained to advise you that a person may 
not lawfully hold the position called principal of the Massachusetts 
School of Art and State Director of Art Education if he has "any direct 
or indirect pecuniary interest in the publication or sale of any text or 
school book or article of school supply used in the public schools of the 
Commonwealth." If, as a matter of fact, the two employments con- 
stitute one position, such a pecuniary interest would debar a person 
from holding the same. 

Yours very truly, 

Joseph E. Warnek, Attorney General. 



State Board of Retirement — Members — Probation. 

The Board has authority to make a by-law that an employee shall not 
be a member during a probationary period of employment nor until 
ninety days thereafter, and an employee has not the right to apply 
for retirement during such periods. 

Service of members is to be computed alone from the beginning of non- 
probationary employment by the Commonwealth. 



P.D. 12. 127 

Nov. 16, 1929. 
Hon. John W. Haigis, Chairman, Board of Retirement. 

Dear Sir: — You have asked my opinion upon the following ques- 
tions relating to the authority of the Board of Retii-ement : — 

"(1) Has the Board exceeded its authority in establishing a by-law 
that an employee shall not become a member during a period of proba- 
tionary employment? 

(2) Is it correct for the Board not to enroll a person until ninety daj's 
after he has completed a period of probationary employment? 

(3) Is it correct after the enrollment of an employee to include the 
probationary plus additional ninety days of service when computing his 
total period of continuous service for retirement benefits under the law? 

(4) Has an employee any rights under G. L., c. 32, § 2 (9), to apply 
to the Board for retirement during a probationary period of employment 
and the additional ninety days specified by the law?" 

G. L., c. 32, § 2, provides that — 

"There shall be a retirement association for the employees of the 
commonwealth." 

Section 1, as amended by St. 1922, c. 341, § 1, defines "employees," as 
the word is used in said chapter 32, as — 

"Persons permanently and regularly employed in the direct service of 
the commonwealth . . . whose sole or principal employment is in such 
service." 

G. L., c. 31, § 3, provides that the Civil Service Commissioners may 
make rules and regulations which shall regulate "the selection of persons 
to fill appointive positions in the government of the commonwealth," 
and that such regulations shall include — " {e) A period of probation 
before an appointment or employment is made permanent." You advise 
me that the Civil Service Commissioners have duly made a regulation 
providing a probationary period of six months in the classified service 
before an appointment or employment is made permanent. It is plain 
that a person while employed during a probationary period, whether 
his employment is under civil service or not, is not, from the very nature 
of such employment, a "permanent" employee of the Commonwealth; 
and that he was not, if under civil service, intended by the Legislature 
to be considered as one follows from the language of G. L., c. 31, § 3 (e), 
above quoted. 

The provision of G. L., c. 32, § 2 (2), that "persons who enter the 
service of the commonwealth hereafter shall, upon completing ninety 
days of service, become thereby members of the association," would seem 
to apply only to persons who enter the service of the Commonwealth 
as permanent employees, for such alone are eligible to membership in 
the association. It would therefore follow that a period of ninety days 
from the expiration of a probationary period of employment should 
elapse before an employee could be said to be a member of the association 
and entitled to the benefits thereof. 

Accordingly, I answer your first and second questions in the affirma- 
tive, and your fourth in the negative. 

The answer to your third question involves a consideration of other 
factors in addition to those affecting the answers to your other queries. 

G. L., c. 32, § 2 (4), as amended by St. 1925, c. 12, provides that — 



128 P.D. 12. 

"Any member who reaches the age of sixty and has been in the con- 
tinuous service of the commonwealth for a period of fifteen years immedi- 
ately preceding may retire." 

Paragraphs (5) and (8) contain similar references to "continuous" service 
with relation to periods entitling a member to retire. 

I am informed that it has been the practice of your Board to include 
the time of a probationary employment and the ninety days of employ- 
ment before a person gains membership in the association as parts of the 
period of continuous service mentioned in said paragraphs (4), (5) and 
(8). I am of the opinion that your departmental practice in this respect 
is correct. It appears from the definition of "continuous service" set 
forth in said section 1, above quoted, and from the absence of any pro- 
visions in said chapter 32 indicating an intention on the part of the Legis- 
lature to make the "continuous service" essential to retirement coinci- 
dent with continuous membership in the association, that continuous 
service is to be computed from the beginning of employment of a mem- 
ber by the Commonwealth and not from the beginning of his membership 
in the association. 

Ver}^ truly yours, 

Joseph E. Warner, Attorney General. 



Secretary of the Conimonwealth — Initiative Petition — Transmission to 
General Court. 

The Secretary of the Commonwealth must transmit a certified initiative 
petition, having the required number of signatures, to the General 
Court upon and not before its assembling. 

Nov. 26, 1929. 

Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You have asked my opinion as to your duty with rela- 
tion to the transmission to the General Court of an initiative petition, 
duly signed by the required number of qualified voters, which has been 
filed with you. Your request reads as follows: — 

"Will you kindly give me your opinion whether such petition must be 
transmitted to the Clerk of the House of Representatives upon the exact 
date of assembling of the General Court or whether it may be transmitted 
prior to that date?" 

The meaning of the applicable provision of the Constitution seems 
clear upon this matter. Mass. Const. Amend. XLVHI, The Initiative, 
//. Initiative Petitions, § 4, is as follows: — 

" Transmission to the General Court. — If an initiative petition, signed 
by the required number of qualified voters, has been filed as aforesaid, 
the secretary of the commonwealth shall, upon the assembling of the 
general court, transmit it to the clerk of the house of representatives, 
and the proposed measure shall then be deemed to be introduced and 
pending." 

This section of the Constitution places upon you the duty to transmit 
to the Clerk of the House of Representatives such an initiative petition 
at a fixed time, namely, "upon the assembhng of the General Court." 



P.D. 12. 129 

The time of such transmission is not left to your discretion, and I am 
of the opinion that you are not authorized to transmit the petition before 
the time designated in section 4. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Commissioner of Correction — Life Prisoner — Removal to State Prison 

Colony. 

The Commissioner of Correction may, in his reasonable discretion, remove 
a life prisoner from the State Prison to the State Prison Colony. 

Nov. 30, 1929. 
Dr. A. W. Stearns, Commissioner of Correction. 

Dear Sir: — In a recent communication to me you state: — 

"St. 1927, c. 289, § 1, states that 'the commissioner may remove to 
the state prison colony any prisoner held in the state prison,' etc. 

G. L., c. 265, § 2, provides that 'whoever is guilty of murder in the 
second degree shall be punished by imprisonment in the state prison for 
life.'' 

Before this Department orders the transfer of any life prisoners from 
the State Prison to the State Prison Colony I desire to ask your opinion 
as to the legality of the same." 

G. L., c. 265, § 2, provides: — 

"Whoever is guilty of murder in the first degree shall suffer the punish- 
ment of death, and whoever is guilty of murder in the second degree shall 
be punished by imprisonment in the state prison for life." 

G. L., c. 125, § 41B (St. 1927, c. 289, § 1), provides: — 

"The commissioner may remove to the state prison colon}'" any pris- 
oner held in the state prison who, in his judgment, may properly be so 
removed and may at any time return such prisoner to the state prison. 
Prisoners so removed shall be subject to the terms of their original sen- 
tence and the provisions of law governing parole from the state prison." 

The provisions of G. L., c. 265, § 2, standing alone, are mandatory, 
and the judge of the court in which a prisoner has been convicted of mur- 
der in the second degree must impose upon such person the sentence of 
imprisonment for life in the State Prison, and a sentence, so imposed, 
with certain exceptions, is required to be executed in the State Prison. 

St. 1927, c. 289, § 1, in my opinion, constitutes an exception to the 
mandatory provisions of G. L., c. 265, § 2. The words "any prisoner," 
as used in St. 1927, c. 289, § 1, are sufficiently broad to include prisoners 
serving life sentences. If the Legislature had intended to limit the re- 
moval of prisoners from the State Prison to the State Prison Colony to 
only those prisoners sentenced to that institution for a term of years, 
it would have used appropriate language to express that intent, as it did 
in the passage of St. 1898, c. 393, §§ 5 and 7, now G. L., c. 125, § 39, where 
it specifically provided that "such male prisoners, except those serving 
sentences for life in the state prison, . . . maj^ be removed from the state 
prison" to "the prison camp ... at West Rutland." 

The words "may properly be so removed" are to be construed to mean 
that any prisoner in the State Prison, except such prisonei's confined 



130 P.D. 12. 

therein in the manner and for the purposes provided by G. L., e. 279, 
§ 44, may be removed to the State Prison Colony if, in the judgment of 
the Commissioner, such prisoner, by his disposition and previous eon- 
duct, has shown that he will be amenable to the discipline at said State 
Prison Colony and will benefit by his removal thereto. 

I am of opinion that the Commissioner of Correction may remove a 
prisoner serving a life sentence in the State Prison to the State Prison 
Colony, provided that he is of the opinion that such prisoner may "prop- 
erly be so removed." 

Yours very truly, 

Joseph E, Warner, Attorney General. 



P.D. 12. 131 



INDEX TO OPINIONS. 



PAGE 

Agricultural seeds; retailer; name on package 94 

Animal Industry, Division of; rules; poultry; animals 72 

Banking; deposits in two names; joint accounts 57 

Barbers; investigation by Department of Public Health 91 

Certified public accountant; change of business name; registration . . 43 

Charitable trust funds; cy-pres doctrine 78 

Citizenship; registration of voters 115 

Civil service; chief of police of Leominster 123 

Clerk of election commission of Lowell; appointment 96 

Labor service; rules 81 

Veteran; Auditor of the Commonwealth 103 

Clerk of a Senate conomittee; secretary of a joint special commission; wages 

or salary 104 

Common drinking cups and towels; rules; Department of Labor and In- 
dustries 49 

Compressed air tank; operation of pneumatic machinery .... 74 
Constitution; Treasurer and Receiver General; vacancy in office . 41, 46 

Constitutional law; charitable trust funds; cy-pres doctrine .... 78 

Savings bank life insurance; statutory limitations 63 

Stock of a trust company held by other banking organizations ... 60 

Water supply; cities 75 

Corporations; certificate of change in stock; fee 92 

Correction, Commissioner of; life prisoner; removal to State Prison Colony . 129 
Deer, killing of, during open season; restriction by Governor or Commissioner 

of Conservation 44 

Education, Department of; employees; pecuniary interest in text books . 125 
Eighteenth Amendment; instructions by voters to legislators under public 

policy act 38 

Fish; cold storage; fresh; advertising 69 

Forfeited automobiles; sales by Department of Public Safety .... 50 
Governor and Council; approval of erection of radio equipment upon the 

roof of the State House 83 

Incompatibility of offices 124 

Initiative petition; transmission to the General Court by the Secretary of 

the Commonwealth 128 

Inspector of slaughtering; appointment by local board of health ... 79 

Insurance; fraternal organizations; certificates 107 

Installment notes; small loans law 52 

Life policies; incontestability; forms Ill 

Stock company; dividends 47 

Labor and Industries, Department of; rules as to common drinking cups and 

towels 49 

Laborers; contracts; public works; payments 90 

Lowell, election commission of; clerk; civil service 96 

Marriage and divorce; records; corrections 88 

Massachusetts Agricultural College; committee of trustees to authorize ex- 
penditures 102 

Medical examiner; absence; associate 96 

Metropolitan Planning, Division of; jurisdiction 44 

Milk; misbranding; prosecution 90 



132 P.D. 12. 



PAGE 



Motor vehicles; compulsory insurance act; express business .... 62 

Interpretation of "right to operate"; revocation 84 

Over-all length; trailers; permits; public ways 67, 121 

Physician; certificate of registration; presentation to city or town clerk . 110 
PubHc Health, Department of; inspector of slaughtering; appointment; 

local board of health 79 

Investigation of barbering 91 

Taking of land by local authorities for protection of water supply; consent 

of department 39 

Public policy act; instructions by voters to legislators; Eighteenth Amend- 
ment 38 

Public records; corrections by city and town clerks; marriage and divorce . 88 

Death records; diseases 101 

Marriage records; certificate of filing of intention 101 

Public Records, Supervisor of; rules; custody 97 

Public welfare; minor children; settlement 109 

Retirement system; certain employees of the Department of Correction; 

"officers" 86 

Members; probationary period 126 

Penal institutions officer; duration of service 65 

State employees; retirement ages 51 

Sentence; State Farm; indeterminate sentence 98 

State Fire Marshal; delegation of authority to a city council and the head of 

the fire department, jointly, to issue licenses and permits ... 68 

Enforcement of rules; local authorities 118 

Municipalities; ordinances; storage and use of e.xplosives and inflam- 
mable fluids; fire prevention 119 

State hospital; authority of superintendent to allow inmates to leave grounds 114 

Statute, acceptance of by a town; vote of inhabitants 53 

Taxation; assessments on land taken for protection of water supply; pay- 
ment by Metropolitan District Water Supply Commission ... 42 
Inheritance tax; life insurance policy; change of beneficiary ... 59 
Teachers' retirement law; assessments; failure to deduct assessments sea- 
sonably 105 

Traffic signs in Boston; expense 48 

Treasurer and Receiver General; vacancy in office 41, 46 

Trust company; increase of capital stock; stockholders 70 

Stock held by other banking organizations 60 

Trust funds; commercial funds; mingling ' 54 



P.D. 12. 133 



RULES OF PRACTICE 

In Interstate Rendition. 

Every application to the Governor for a requisition upon the executive 
authority of any other State or Territory, for the delivery up and return of 
any offender who has fled from the justice of this Commonwealth, must be made 
by the district or prosecuting attorney for the county or district in which the 
offence was committed, and must be in duplicate original papers, or certified 
copies thereof. 

The following must appear by the certificate of the district or prosecuting 
attorney : • — 

(a) The full name of the person for whom extradition is asked, together with 
the name of the agent proposed, to be properly spelled. 

(6) That, in his opinion, the ends of public justice require that the alleged 
criminal be brought to this Commonwealth for trial, at the public expense. 

(c) That he believes he has sufficient evidence to secure the conviction of 
the fugitive. 

(d) That the person named as agent is a proper person, and that he has no 
private interest in the arrest of the fugitive. 

(e) If there has been any former application for a requisition for the same 
person growing out of the same transaction, it must be so stated, with an 
explanation of the reasons for a second request, together with the date of such 
application, as near as may be. 

(/■) If the fiigilive is known to be under either civil or criminal arrest in the 
State or Territory to which he is alleged to have fled, the fact of such arrest 
and the nature of the proceedings on which it is based must be stated. 

ig) That the application is not made for the purpose of enforcing the collec- 
tion of a debt, or for any private purpose whatever; and that, if the requi- 
sition applied for be granted, the criminal proceedings shall not be used for any 
of said objects. 

(/i) The nature of the crime charged, with a reference, when practicable, 
to the particular statute defining and punishing the same. 

(i) If the offence charged is not of recent occurrence, a satisfactory reason 
must be given for the delay in making the application. 

1. In all cases of fraud, false pretences, embezzlement or forgery, when made 
a crime by the common law, or any penal code or statute, the affidavit of the 
principal complaining witness or informant that the application is made in good 
faith, for the sole purpose of punishing the accused, and that he does not desire 
or expect to use the prosecution for the purpose of collecting a debt, or for 
any private purpose, and will not directly or indirectly use the same for any 
of said purposes, shall be required, or a sufficient reason given for the absence 
of such affidavit. 

2. Proof by affidavit of facts and circumstances satisfying the Executive that 
the alleged criminal has fled from the justice of the State, and is in the State 
on whose Executive the demand is requested to be made, must be gfiven. The 
fact that the alleged criminal was in the State where the alleged crime was 
committed at the time of the commission thereof, and is found in the State 
upon which the requisition was made, shall be sufficient evidence, in the absence 
of other proof, that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in duplicate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and cir- 
cumstances showing the commission of the crime charged, and that the accused 
perpetrated the same, must be shown by affidavits taken before a magistrate. 



134 P.D. 12. 

(A notary public is not a magistrate within the meaning of the statutes.) It 
must also be shown that a complaint has been made, copies of which must 
accompany the requisition, such complaint to be accompanied by affidavits to 
the facts constituting the offence charged by persons having actual knowledge 
thereof, and that a warrant has been issued, and duplicate certified copies of 
the same, together with the returns thereto, if any, must be furnished upon an 
application. 

5. The official character of the officer taking the affidavits or depositions, and 
of the officer who issued the warrant, must be duly certified. 

6. Upon the renewal of an application, — for example, on the ground that 
the fugitive has fled to another State, not having been found in the State on 
which the first was granted, — new or certified copies of papers, in conformity 
with the above rules, must be furnished. 

7. In the case of any person who has been convicted of any crime, and escapes 
after conviction, or while serving his sentence, the application may be made by 
the jailer, sheriff, or other officer having him in custody, and shall be accom- 
panied by certified copies of the indictment or information, record of conviction 
and sentence upon which the person is held, with the affidavit of such person 
having him in custody, showing such escape, with the circumstances attending 
the same. 

8. No requisition will be made for the extradition of any fugitive except 
in compliance with these rules. 



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