Public Document No. 12
^bt Commontoealtl) of Massachusetts
REPORT
ATTORNEY GENERAL
FOR THE
Year ending November 30, 1930
Cl)e CommonUjealtjb of ^a^mthn^tm
Departme.,t of the Attorney General,
Boston, January 21, 1931.
To the Honorable Senate and House of Representatives.
I have the honor to transmit herewith the report of the Depart-
ment for the year ending November 30, 1930.
Very respectfully,
JOSEPH E. WARNER,
Attorney General.
Cf)e Commontueaitt) of aia00aci)usett0
DEPARTMENT OF THE ATTORNEY GENERAL,
State House.
Attorney General.
JOSEPH E. WARNER.
Assistants.
Franklin Delano Putnam.
Roger Clapp.
Charles F. Lovejoy.
Emma Fall Schofield.
Gerald J. Callahan. ^
James S. Eastham. ^
R. Ammi Cutter.^
Edward T. Simoneau.
Stephen D. Bacigalijpo.
George B. Lourie.
Louis H. Sawyer.
Edward K. Nash.*
David A. Foley.^
Donald C. Starr.s
Chief Clerk.
Louis H. Freese.
Cashier.
Harold J. Welch.
1 Resigned December 31, 1929.
^ Resigned January 15, 1930.
3 Resigned March 14, 1930.
♦ Appointed January 1, 1930.
6 Appointed January 16, 1930.
6 Appointed March 19, 1930.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Fiscal Year.
General appropriation for 1930 $107,000 00
Appropriation for small claims 5,000 00
Supplemental appropriation 34,000 00
Publication of opinions of the Attorneys General 4,000 00
$150,000 00
Expenditures.
For salary of Attorney General ■ . . . $8,000 00
For law library 558 25
For salaries of assistants 47,643 83
For salaries of all other employees 20,990 00
For legal and special services ' . . . 27,575 45
For office expenses and travel 6,097 57
For court expenses 14,687 17
For small claims 4,410 36
Total expenditures $129,962 63
Cfje Commontoealtl) of ^a00acJ)U0ett0
Department of the Attorney GENBR.Ui,
Boston, January 21, 1931.
To the Honorable Senate and House of Representatives.
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, 1930, to the number of 9,731 are tabu-
lated below:
Corporate franchise tax cases 1,207
Extradition and interstate rendition 339
Land Court petitions 103
Land-damage cases arising from the taking of land :
Department of Public Works 91
Department of Mental Diseases 5
Department of Conservation 1
Department of Correction 3
Metropolitan District Commission 60
Metropolitan District Water Supply Commission 7
Miscellaneous cases 1,090
Petitions for instructions under inheritance tax laws 47
Public charitable trusts 291
Settlement cases for support of persons in State hospitals . . . . 13
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 6,440
Indictments for murder, capital cases 34
Disposed of 25
Now pending 9
P.D. 12.
I. ADMINISTRATION OF CRIMINAL JUSTICE.
The functions of the office of the Attorney General embrace both the
civil and criminal fields. The Attorney General is the legal adviser of
the Governor, the Legislature, all the departments and every state official,
in matters relating to the official business of the Commonwealth. He is
also the attorney for the Commonwealth, its departments, officers and
commissions, in all litigations, whether in the state or federal courts. As
the chief law officer of the Commonwealth, he takes cognizance of all
violations of the law affecting the welfare of the people and acts for the
Commonwealth in the preparation and scrutiny of all its legal affairs.
The scope of the authority of the Attorney General is coincident with
that of the district attorneys, and, as chief law officer, he may call upon
them to co-operate with him in the prosecution of such cases and to per-
form such acts relating to criminal matters as by law he is not required
to prosecute or perform himself. (G. L., c. 12, §§ 20, 27.)
Misdemeanors are tried by district courts; misdemeanors appealed
therefrom and felonies are tried by the Superior Court. The Attorney
General and the eight district attorneys are designated by law to prose-
cute crime in the Superior Court.
The administration of the district attorneys ^ has been uniformly notably
efficient, as reflected by the present excellent status of their dockets, which
reveal activity and preparedness of the Commonwealth for expeditious
trial of crimes — an objective of the conference and plans of the Attorney
General and district attorneys two years ago. These dockets, too, are an
index of the prevalence of crime itself.
In the Western District, comprising the two counties of Berkshire and
Hampden, District Attorney Clason reports achievement this year of
clearance of the criminal docket of every triable case, with 10 felonies
and 23 misdemeanors now pending because circumstances prevent dis-
position. As to the felonies, disposition was prevented by continuing
imprisonment of 4 defendants under former sentences, and by absence
of witnesses or inability to secure arrest of defendant in others. As to the
misdemeanors, pleas have already been received in 7 cases, and in the
others early disposition may be expected upon completion of payments
under court orders, restitution of moneys, trials upon their civil aspects,
and completion of sentences now being served for other offenses.
In the Northwestern District, comprising the two counties of Franklin
and Hampshire, District Attorney Fairhurst so accompHshed clearance
' Western District (Berkshire and Hampden Counties), Charles R. Clason.
Northwestern (Hampshire and Franklin Counties), Charles Fairhurst.
Middle (Worcester County), Edwin G. Norman.
Northern (Middlesex County), Robert T. Bushnell.
Eastern (Essex County), William G. Clark.
Suffolk (Suffolk County), William J. Foley.
Southeastern (Norfolk and Plymouth Counties), Winfield M. Wilbar.
Southern (Bristol, Barnstable, Dukes and Nantucket Counties), William C. Crossley.
P.D. 12. 7
of the dockets of both counties that there are no felonies pending, and in
Hampshire County, aside from a few suits on recognizance, but 1 misde-
meanor, and in Frankhn County but 6. These latter cannot be disposed
of because of the adjournment of the court. In Hampshire County
alone, during these four years, he returned to the county treasury of his
appropriation for criminal work approximately $50,000.
In the Middle District (Worcester County) District Attorney Norman
reports 17 felonies and 29 misdemeanors.
In the Northern District (Middlesex County) District Attorney Bush-
nell reports 374 cases pending. Of the 155 felonies, defendants have not
been apprehended in 62, and a plea of guilty has been made in 1. Of the
219 misdemeanors, unapprehended defendants account for 82, and pleas
of guilty, for 17. There were 5 capital cases pending, but trial has been
had in 2. ^
In the Eastern District (Essex County) District Attorney Clark, the
learned, able and experienced dean of our prosecutors, is voluntarily re-
tiring after eleven years of service, and leaves the docket in an excellent
condition, with very few felonies and comparatively few misdemeanors.
There is 1 homicide case pending, which it is expected will be disposed of
at the coming session.
In the Suffolk District (Suffolk County) District Attorney Foley dis-
posed of all murder cases, and no defendant is awaiting trial. One hun-
dred and sixty felonies and 855 misdemeanors are pending.
In the Southeastern District, comprising the two counties of Norfolk
and Plymouth, District Attorney Wilbar reports 11 felonies, 25 misde-
meanors from Pl3anouth; 6 felonies, 18 misdemeanors from Norfolk.
The defendant has not yet been apprehended in the pending capital case.
In the Southern District, comprising the four counties of Bristol, Barn-
stable, Dukes and Nantucket, District Attorney Crossley reports a total
of 591 cases pending, and of these 509 are in Bristol. Of the 195 felonies,
40 are pending for the reason that they have arisen since court sittings,
56 because defendants have not been apprehended, while 12 have de-
faulted. Of the 402 misdemeanors, 30 have arisen since court sittings;
in 32, defendants have not been apprehended, and 33 have defaulted.
Hence the actual condition of the criminal docket at the last court sittings
prior to November 30th showed but 87 felonies, 286 misdemeanors in
Bristol; 18 misdemeanors in Barnstable; 2 misdemeanors in Nantucket;
and 1 in Dukes. Varying circumstances prevented trial in many cases,
while the fact of division of the entire Hst into four counties naturally
prevents intensive disposition of cases in any one county.
The list of capital cases in detail is annexed (page 29).
Freedom from congestion in our criminal dockets makes it indisputably
apparent that in Massachusetts the criminal may not profit through the
' Since November 30, the remaining 3 capital cases have been tried; 111 felonies and 187 misdemeanors
disposed of.
8 P.D. 12.
traditional law's delays. Our system of procedure (begun in 1923) whereby
judges of the district court, sitting in the Superior Court, hear misdemean-
ors, and judges of the Superior Court are free to hear felonies, has proved
its efficacy in facilitating and expediting justice.
General increase in crime, if such be alleged, may not be charged to
inactivity of courts, prosecuting officers, or to congested dockets here in
Massachusetts.
From the report of the district attorneys, there has been no general
increase in crime, nor any signal increase in any particular crime. Of
serious offenses, embezzlement — theft of money with which one has
been entrusted — is slightly more apparent. Of the lesser offenses, auto-
mobile violations account for any numerical increase.
All of this plainly testifies that the average citizen of Massachusetts is
both law respecting and law observing.
Nor has a single complaint been received of "racketeering" — that is,
the exaction of tribute from trades or businesses for immunity from
destruction of property or from interference with business.
Freedom from this predatory invasion is both to the credit and vigi-
lance of our police, and to a healthy public sentiment unwilling to toler-
ate or countenance infamous tribute for honest Hvelihood.
Recommendation of the District Attorneys.
The recommendation of the district attorneys is as follows:
The penalty for breaking and entering a building, ship or vessel in the
nighttime, with intent to commit a felony, is not more than twenty
years in the state prison (G. L., c. 266, § 16), and for breaking and enter-
ing in the daytime or entering in the nighttime without breaking and
putting in fear any person lawfully therein, not more than ten years
(c. 266, § 17).
The district attorneys suggest as an alternative jail imprisonment for
not more than two and one half years.
This recommendation is occasioned by experience in disposition of
cases where defendants are young. This amendment enables the court
to exercise a discretion with respect to such defendants.
P.D. 12. 9
II. ADMINISTRATION OF CIVIL BUSINESS.
A. Cases Decided During the Year.
1. In the Supreme Judicial Court.
Decisions were received in four ^ cases relating to the validity of taxes
imposed by the Commonwealth, and in seven ^ cases relating to mis-
cellaneous subjects.
B. Cases Pending November 30, 1930.
1. In the United States Supreme Court.
(a) Interstate Controversy.
The State of Connecticut v. Commonwealth of Massachusetts. During
the months of February, March and April, of this year, hearings were
held in Boston and in Hartford before Hon. Charles W. Bunn, of St.
Paul, Minnesota, Special Master appointed by the Supreme Court of the
United States to pass upon the pending water controversy between
Connecticut and Massachusetts. A very large amount of engineering
testimony was introduced before the Special Master dealing with the
effect of the proposed diversion of certain of the head waters of the Ware
River and the Swift River for the purpose of supplj-ing the Metropolitan
District with drinking water. Connecticut contended that the diversion
would so diminish the flow of the Connecticut River in Connecticut as
to injure navigation, to affect agriculture adversely, to increase the pol-
lution of the river, and to destroy fish life and water power.
The Special Master found that Connecticut would not in any way be
substantially injured by the Massachusetts project and filed a report
with the Supreme Court, toward the end of May, advising and recom-
mending that a decree be entered dismissing the bill brought by Con-
necticut, without prejudice. His recommendations and the report itself
were entirely favorable to the position taken by Massachusetts.
Connecticut, thereupon, alleged seventy-five exceptions to the report
1 Allen V. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1930) 1799, held that only so
much of the gain on the sale of rights was taxable as represented the difference between the sale price
and the value of the rights on the day they were received by the taxpayer.
Hutchins v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1930) 1749, held invalid a
tax upon a Massachusetts resident, one of three trustees appointed under the will of a non-resident by a
probate court in another state, upon income received by him as such trustee and accumulated for the
benefit of unascertained remaindermen. The other two trustees were not residents of Massachusetts.
Although the statute directed the Commissioner to impose this tax, the court held that its imposition
to the extent assessed by the Commissioner was beyond the jurisdiction of Massachusetts and refused
to apportion the tax because the statute made no provision for such apportionment.
Dodge v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1930) 2153, held that a dividend
declared by a foreign corporation (Pullman Company) to a resident of Massachusetts, during the process
of the reorganization of that foreign corporation, is taxable as a dividend under G. L., c. 62, § 1, and is
not to be treated as a transfer of stock during the reorganization under G. L., c. 62, § 5, cl. (c). (About
$250,000 in taxes was involved in this decision, and this amount was saved to the Commonwealth.)
Williams et al.. Trustees, v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1930) 1527,
held that the petitioners, trustees of a real estate trust, were, in making income tax returns, entitled to
deduct from gains derived from the sale of certain real estate, the taxes paid on all the real estate held by
them, plus five per cent of the assessed value of such real estate.
2 Blankenburg v. Commonwealth, Mass. Adv. Sh. (1930) 1485, on writ of error from conviction of
10 P.D. 12.
of the Special Master and an argument before the Supreme Court of the
United States upon these exceptions took place on January 5, 1931.
Exhaustive briefs have already been filed by each side covering all
phases of the controversy.
(6) Tax Cases.
Harold J. Coolidge et al., Trustees, v. Commissioner of Corporations
and Taxation ^ involves the constitutionality of a Massachusetts succes-
sion tax upon property passing in 1925 to children of the settlors under
a trust instrument, executed in 1907, when there was no tax upon the
same; the trust instrument being irrevocable and, by a later assignment,
no beneficial interest being retained in the settlors.
2. In the Supreme Judicial Court.
There are 33 cases pending, some of which have already been argued;
23 are grouped in the Billboard Cases; 5^ concern taxation; the others'
involve various matters.
Blankenburg for criminal contempt growing out of conspiracy to defraud the estate of the late Lotta
Crabtree, held that the probate court has power to punish one for contempt of court in committing perjury.
Scott V. Commissioner of Civil Service, Mass. Adv. Sh. (1930) 1471. One who enlisted and served in the
United States Navy after the armistice but before the signing of the treaty of peace is not a veteran within
the Veterans' Preference Act.
Merrymount Co. v. Metropolitan District Commission, Mass. Adv. Sh. (1930) 1731. Talking of peti-
tioner's land under eminent domain proceedings held valid.
Dugdale v. Board of Registration in Medicine, Mass. Adv. Sh. (1930) 179. Decision of board revoking
petitioner's registration held valid.
Mayor of Lynn v. Commissioner of Civil Service, Mass. Adv. Sh. (1929) 2399. Veterans' Preference Act
held constitutional.
Rawding v. State Fire Marshal, Mass. Adv. Sh. (1930) 1577, held that the Fire Marshal, in passing
upon an application for a permit to store inflammable compounds outside the metropolitan district, can
consider only the question of fire hazard.
Sullivan v. Judges of the Superior Court, Mass. Adv. Sh. (1930) 1143, held where petitioner, by writ
of prohibition sought to enjoin the justices of the Superior Court from proceeding to examine the mental
condition of a petitioner appearing in an action of tort before a justice of the Superior Court, that G. L.,
c. 123, § 99 (providing for examination of mental condition of certain persons), applied to parties in civil
proceedings and was not confined to persons charged with offenses.
• Argued December 8, 1930.
2 Worcester County National Bank, executor under the will of Herbert I. Wallace, v. Commissioner of Cor-
porations and Taxation. Whether or not the conveyance of property to take effect on death of grantor
in consideration of marriage is a bona fide transfer for such full consideration as to bring the property
within an exemption in the inheritance tax law. Argued.
Boston Safe Deposit <& Trust Co. v. Long. Whether interest accrued prior to a testator's death and
received by his e.xecutor is taxable as income.
Central Trust Company v. Howard. Whether the Commonwealth is restrained by the provisions of
St. 1930, c. 214, from collecting certain taxes from the complainant.
Thomson Electric Welding Company v. Commonwealth. Whether the plaintiff corporation is entitled
in the determination of its excise tax to have deducted from its net income the amount received from
royalties from United States patents.
First National Bank of Boston, Trustee, v. Long. Whether gains resulting from sales by a trustee
under a revocable trust can be determined for income tax purposes on the basis of cost to the donor.
3 Kerwin, adm. d. b. n. c. t. a., v. Attorney General el al., concerning a certain charitable bequest under a
will. Where power to designate the charities was vested in five executors, whether the surviving executor
under the will had power to designate the charities, and if so, whether he made a proper designation.
Argued December 5, 1930.
Standard Oil Company of New York v. Commissioner of Public Safety. Whether the person, appealing
to the State Fire Marshal from the decision of the Board of Street Commissioners granting a license, is a
"person aggrieved" and so has a right to appeal.
P.D. 12. 11
The most important are the so-called Billboard Cases, testing the
validity of certain rules and regulations of the Department of Public
Works relating to location and size of billboards.
Hearings before the master were closed December 26, 1929, under a
day to day order urged by the Commonwealth. Exhaustive analysis
of the testimony has followed. The immediate phase of these cases
concerns proceedings relating to contents of the master's report recently
drafted. Much detail must precede formal presentation of the final re-
port to the court.
III. STATUTORY SERVICES OF INTEREST.
1. Small Claims.
St. 1924, c. 395, provides that claims against the Commonwealth, where
there is no statutory authority for prosecuting them by suit, or other
mode of redress provided by law, may be presented to the Attorney
General, and, if he finds damages under $1,000, the claims may be paid.
If the damages exceed $1,000 the facts are reported to the Legislature.
Fifty-six claims were presented under this act, of which 26 were approved,
after investigation or hearing, and $4,460.86 was paid to the claimants;
10 were rejected; 20 are still pending. Of the 26 claims paid, 15 (58 per
cent) arose out of collisions with state-owned cars; the rest were for in-
juries arising out of defects in state-owned property; for losses of personal
property at state institutions; and for various causes.
2. Election Inquests.
G. L., c. 55, § 40, provides that in all cases where a justice of a district
court holds an inquest to inquire into alleged violations of law relating
to corrupt practices in connection with primaries, caucuses or elections,
"the attorney general, the district attorneys, or some person designated
by them, shall attend the inquest and examine the witnesses." There
were only two inquests this year, and an Assistant Attorney General was
designated to conduct the examination in both.
3. Public Charitable Trusts.
When money or property has been left in trust for some charitable
purpose of public rather than private benefit, the Attorney General repre-
sents the public in all cases where such a trust exists. This involves ex-
amination of all petitions by charities for permission to sell property sub-
Ott V. Board of Registration in Medicine. Petition to reverse an order of the board revoking the peti-
tioner's registration.
McGoldrick v. Commissioner of Civil Service. As to the right of the Mayor of Somerville to appoint the
petitioner in charge of the municipal employment bureau without certification from the Civil Service
Commissioner.
Goldberg v. Commissioner of Civil Service. Whether the petitioner has become separated from the service
so that he cannot be reappointed without the approval of the Civil Service Commissioner.
12 P.D. 12.
ject to a trust, or to dissolve and transfer assets to another corporation
upon the same charitable purposes; examination of accounts of trustees;
rendition of assistance to the court in the matter of appointment of new
trustees for charitable purposes; participation in litigation affecting any
bequest to Massachusetts charities.
It also involves proceedings for application of the cy pres doctrine, that
is, when a trust can no longer be carried out according to its exact terms,
proceedings are taken for the purpose of determining the application and
use of the trust in a way most nearly like the original.
One of the outstanding pending proceedings is the petition of the Trus-
tees of the Andover Theological Seminary seeking authority to affiliate
with the Newton Theological Institution. Since a decision of the Supreme
Judicial Court, reported in 253 Mass. 256, that the Andover Theological
Seminary could not affiliate with Harvard, under the terms of the founders
of the trust, Andover Theological Seminary has ceased to operate. The
question in htigation concerns in particular the so-called ''Andover Creed",
formulated in 1808, and requires, among other things, determination of
existence of an institution continuing to subscribe, or having a faculty
subscribing, to such creed, or an institution subscribing to a creed most
nearly like it.
Another important case related to the amalgamation of the First Parish
Unitarian Church in Walpole, the Methodist Episcopal Church of Wal-
pole and the Walpole Congregational Church into the United Church of
Walpole, whereby their united financial resources effect a strong church.
4. Administration of Estates by Public Administrators.
When a person dies leaving an estate, the estate must be administered
by someone. When such a person dies without a will and without any
known heirs, the law provides for the administration of the estate by a
public administrator under bond, and that all the estate, after payment
of debts and expenses, shall be payable to the state treasury. The only
notice to the Commonwealth of public administration cases, is by service
upon the Treasurer and Receiver General of the petition for appointment
and the allowance of final accounts.
If, after pubhc administration has been granted, representations are
made to the probate court that there are known heirs, administration
is granted, upon proper petition without notice to the public adminis-
trator or to the Treasurer and Receiver General, and the administrator
appointed supersedes the public administrator.
The law requires that public administrators render an account at the ex-
piration of one year from the date of appointment. In the event an estate
has been closed by the public administrator and the money has been paid
into the state treasury, an heir may, within six years thereafter, petition
for administration and upon appointment the Treasurer and Receiver
General shall repay to him such money. (G. L., c. 194, §§ 14 and 15.)
P.D. 12. 13
Public administrators are appointed by the Governor for a term of
five years. The law designates the number to be appointed in each county,
and there are now 54 in the entire State.
1 have made an extensive examination to ascertain the number of
estates in process of administration by public administrators, the aggre-
gate value of the estates, the value of estates remaining unclosed after
the expiration of two years from the date of grant of administration, the
occasion for failure to close estates, and sufficiency of the bonds to cover
the value of estates administered by each administrator. Replies were
received from all public administrators, except one. ^
There are 470 cases in process of administration by pubhc adminis-
trators, with balances outstanding of $480,785.82. Of these, 182 are of
more than tw^o years' standing, with balances of $132,804.46. Of these
182 estates, there are 37 with balances of $43,737.90, in which insolvency,
determination of claims against or in favor of the estate, or existence of
heirs, prevented closing within that period. This leaves 145 estates more
than two years old, with reported assets of $89,064.56, which, after de-
duction of administration expenses and allowance of final accounts, are
eligible for escheat to the state treasury; of these 145, one public admin-
istrator had 121 in process of administration, with assets of $69,974.37.^
All are covered by a sufficient bond.
Forty-one estates await appointment of public administrators in suc-
cession to two pubhc administrators recently deceased, who had been
administering them.^
Under the provisions of G. L., c. 194, § 2, a public administrator may
file a special bond in each case, or a general bond covering all his estates,
for faithful administration. Fifteen public administrators filed general
bonds. All five in Suffolk County did so. Five general bonds are for
less sums than the total assets in estates accumulated since such bonds
were filed.* These bonds ranged from $2,000 to $5,000, and represented
' Frank H. Snow, Franklin County, whose term expired July 29, 1930.
2 Frank Leveroni, Suffolk County. As this report is filed, 69 of the 121 have since been closed, and
$30,056.40 has been paid into the treasury; so that of the $s9,G64.56 in process of administration in the
Commonwealth, the amount eligible for escheat from all public administrators is $59,008.16, minus ad-
ministration expenses.
3 James J. McCarthy, Suffolk County, 34 estates.
W. Frederic Da\ns, Middlesex County, 7 estates.
* Essex County.
Guy Newhall general bond $2,000 00
assets 2,717 71
Archie N. Frost general bond $3,000 00
assets 11,795 24
Worcester County.
A. Z. Goodfellow general bond $2,000 00
assets 15,962 59
E. Bert Johnson general bond $2,500 00
assets 11,173 16
Harry J. Meleski general bond $5,000 00 •
assets 14,748 15
14 P.D. 12.
assets from $2,717.71 to $15,962.59. All the other pubhc administrators,
namely, thirty-nine, filed a special bond in each estate. As pubHc ad-
ministrators, acting under general bonds, must file "an account", namely,
a list of all their estates having balances, once each year, the probate
judges have all the information regarding administrations in their own
courts, and might have exacted, if they had deemed it requisite, increases
in these general bonds.
Approval of amount of bond and grant of administration under an
adequate bond rest with the probate judges. Requirement of a special
bond for each estate would eliminate the possibility of existence of as-
sets in cumulative estates in excess of the original general bond.
I therefore recommend repeal of G. L., c. 194, § 2, lines 5-36, providing
for a general bond.
G. L., c. 194, § 16, provides that district attorneys shall proceed against
public administrators who neglect to return an inventory, settle an ac-
count or perform other duties in relation to an estate, and insure pay-
ment of all balances to the Treasurer where there are no heirs. The
Attorney General should have hke power. There is no provision of law,
however, whereby either district attorneys or the Attorney General may
be informed of those cases where accounts have not been filed, or, if filed,
have not been presented to the court for allowance. As the situation
now is, unless public administrators file general bonds and comply with
the laws applicable to such cases, requiring them to render an accounting
each year, it is impossible to determine from the court records how many
cases a public administrator has, unless the names of the estates are
known.
I recommend legislation requiring a register of probate to report to
the district attorney for the district where the administrator received his
letters, and also to the Attorney General, all cases in which accounts
are due or filed, but not presented to court for allowance, and to index
all public administration cases under the names of the various public
administrators, so that information regarding such cases may be speedily
ascertained.
I renew the recommendation in my report of 1928 that in a case where
a pubhc administrator has already been appointed notice of petitions
for administration by alleged heirs be given to the public administrator
concerned and to the Treasurer and Receiver General; that it be made
discretionary with the probate court to permit the public administrator
already appointed to continue to act if such continuance of service would
best meet the public interest and the welfare of the estate. As the law
now stands, under G. L., c. 194, § 7, no notice need be given to the pub-
lic administrator, or to the Treasurer or to the Attorney General, when,
after grant of public administration, alleged heirs seek administration.
In one case, upon petition, alleged heirs had their nominee appointed,
and it later was learned that the petitioners were not heirs at all. As
P.D. 12. 15
the Commonwealth receives estates of persons dying without will or
without known heirs, the Commonwealth ought to be informed of those
cases wherein, after grant of public administration, persons alleging
themselves to be heirs, seek the estate, that it may have at least oppor-
tunity to ascertain the legitimacy of the claim of heirship.
5. Extradition and Rendition of Fugitives from Justice.
There were 265 requests for the return of fugitives from justice referred
to this department for examination, hearing and report during the past
year.
Of these, 48 were requests from other States for the return of fugitives
under arrest in this Commonwealth; and 217 were requests for the return
of persons who had committed crimes in this Commonwealth and had
subsequently fled to other jurisdictions, including 128 persons charged
with desertion, non-support and neglect of wife and children. The return
of every person wanted for crimes committed in this Commonwealth
was secured through this department, with the exception of 3.
The sixth report of the Judicial Council (pp. 43-45) discusses the latest
uniform extradition act. Members of the Judicial Council conferred with
this department relative to such act. I concur in the Council's recom-
mendations.
I particularly urge enactment of the provisions in sections 4 and 6 of
the suggested draft act. (Report of Judicial Council, pp. 54 and 55.)
They constitute material changes in our present law. The other sections
of the proposed act are desirable legislation. They are in the nature of
codification of the existing law as established and followed in Massachu-
setts-by judicial decision and practice.
Section 4 of the draft act specifically embodies the provisions of 1930,
House Document 68, § 16. It provides for the rendition of a defendant
who has intentionally committed an act within this Commonwealth,
which has resulted in a crime in another State, and who is, therefore, not
technically a fugitive from justice from that State, and that the rendi-
tion of such person be made discretionary with the Governor, and not
mandatory, as are the provisions of the present rendition law in respect
to fugitives from justice.
In some States, notably New York, before submitting the uniform ex-
tradition act for consideration by the Legislature, the scope of this pro-
vision was further enlarged by providing for discretionary rendition from
State A to State B of any person who has intentionally committed an act
in State A, resulting in crime in State B, and who has subsequently fled
to the jurisdiction of State A, where he has been found and arrested.
The proposed draft would provide for a rendition only in case the fugi-
tive is found in State C. The provision as proposed in New York is de-
sirable from a practical standpoint. The addition of the words "or in a
16 P.D. 12.
third state" after the words "an act in this commonwealth", in section 4,
Hnes 4 and 5, of the draft act, so enlarges its scope.
Section 6 of the draft act embodies the provisions of 1930, House Docu-
ment 68, § 20 D. It provides that any officer qualified to serve criminal
process may arrest without a warrant a fugitive from another State
"upon reasonable information that the accused stands charged in a court
of another state with a crime punishable by death or life imprisonment."
I believe that this provision extends a protection to police officers of this
Commonwealth which is very desirable, and concerning which there is
uncertainty in our present law. (See Scott v. Eldridge, 154 Mass. 25, 27.)
It will greatly facihtate the arrest of persons within this Commonwealth
who have committed serious crimes in other jurisdictions. Other reasons
appear in the report of the Judicial Council (pp. 48 et seq.).
Governor Roosevelt of New York vetoed the uniform extradition act
on the ground that its provisions do not grant police officers power to
make arrests without a warrant upon reasonable information that the
accused stands charged with felony in another State. I am in accord with
the view as expressed by him. The draft act proposed follows the uniform
act and limits the power to make arrests without warrants to crimes
"punishable by death or life imprisonment." In this Commonwealth a
police officer may arrest without a warrant upon reasonable inform-ation
in all felony cases. If it is desirable to make the power of police officers
to make arrests without warrants for felonies committed outside of the
Commonwealth co-extensive with their powers in regard to acts com-
mitted within the Commonwealth, substitution of the word "felony"
for the words "crime punishable by death or life imprisonment", in sec-
tion 6 of the draft, will accomplish it.
6. 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 16 hearings before
the Industrial Accident Board and at 8 conferences in cases arising under
the Workmen's Compensation Act (G. L., c. 152), providing for compen-
sation to laborers, workmen and mechanics employed by the Common-
wealth, who receive personal injuries arising out of and in the course of
their employment.
The department also prepared or passed upon 480 contracts, 35 leases
and 8 easements as to form; and 195 deeds as to both legal form and title.
Under G. L., c. 30, § 39, as amended, relating to certain Hens against
security for the construction of public works, 15 cases were closed; 16 are
pending. Under G. L., c. 258, § 1, 3 cases arising out of contracts with
the Commonwealth for the construction of public works were concluded.
P.D. 12. 17
7. Service rendered to Special Recess Legislative Commission.
Under authority of chapter 28 of the Resolves of 1930, which directed
a revision, simphfication and codification to be made of the laws of the
Commonwealth relating to marine fisheries, including shellfish, I appointed
Assistant Attorney General Donald C. Starr to serve as a member of the
Commission undertaking this work.
In addition to the general laws relating to this subject, there is a large
number of special enactments, extending from the early days of the Bay
Colony to the present time. These are being collected and indexed, and
made more readily accessible for reference. This will not only result in
greater efficiency in the enforcement of regulatory provisions, but will also
provide for the guidance and consequent protection of those deriving gain
and livelihood from the shellfish and free-swimming fish industries.
8. Opinions.
Opinions of interest are annexed.
V. GENERAL OBSERVATIONS.
1. That the Attorney General may have Power to Summon Witnesses.
I have in my last two reports pointed out that the Attorney General
has no power in an independent inquiry to summon witnesses, examine
them under oath, or require the production of records, that he may effect
a thorough investigation of matters, civil as well as criminal, concerning
the pubhc peace, public safety and public welfare. An attorney general,
devoid of this authority, may not accomplish a vigorous and searching
investigation for the ascertainment of facts in matters actually affecting
the weKare of the people, as, for instance, fraudulent claims under the
compulsory insurance act or violations of the "Sale of Securities Act."
I therefore renew my recommendation that such power be granted.
2. Clarification of the Law authorizing the Summoning of Witnesses
in Certain Criminal Proceedings.
G. L., c. 218, § 37, and c. 233, § 1, authorize the summoning of wit-
nesses in criminal proceedings. As to whether district courts have the
power thereunder to compel the attendance of witnesses before them after
complaint but before the issuance of process, a varying practice indicates
some doubt. In order that this doubt may be resolved, I recommend
that the General Laws be amended to set forth clearly their authority.
18 P.D. 12.
3. Regulations enabling Some Measure of Information concerning Any
Organization engaged in the Solicitation of Charity, as to its
Collectors and Use of the Moneys collected.
To minimize the exploitation of funds collected on the streets from the
public, for charitable purposes, I recommend legislation that such organ-
izations be required to keep true records of the names and addresses of
all solicitors or collectors employed by them and the amounts collected and
expended, together with the nature of the expenditures; and that such
records be open to inspection by the Departments of Public Welfare of
the State or cities and the selectmen of the towns, at any time.
4. Relative to Power of Police Officers to arrest Persons for Operating
while under the Influence of Liquor.
I renew the recommendation made by me last year that the poHce
officers 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 on such charge without a
warrant if the person has his license to operate in his possession. An in-
vestigator or examiner appointed by the Registrar of Motor Vehicles has
the authority to make an arrest for such a violation, "irrespective" of
whether or not the operator has with him his license to operate the motor
vehicle.
A bill introduced in the Legislature at the last session granting this
additional power to police officers failed of passage during one of the
final stages.
I recommend, therefore, an amendment of G. L., c. 90, § 21, as amended
by St. 1921, c. 349, enabling a police officer to make an arrest of "any
person operating a motor vehicle on any way while under the influence of
intoxicating liquor or drugs," or who otherwise violates any statute, etc.
5. Extent to which there were Proceedings under the Baby Volstead Act.
The "Baby Volstead Act," so called (St. 1923, c. 370), prohibiting
the manufacture, transportation, importation and exportation of in-
toxicating liquor without a federal permit, was enacted by the Legis-
lature of 1923 and approved by the Governor on May 9, 1923.
The operation of this act was suspended by the filing of referendum
petitions, and it was submitted to the voters at the state election of
November 4, 1924. On that date the act was approved by them and be-
came effective December 4, 1924.
On November 4, 1930, the "Baby Volstead Act" was repealed by
P.D. 12. 19
the voters of the Commonwealth, and the repeal became effective on
December 4, 1930.
During the six years of the hfe of this act it appears from such in-
formation as could be obtained from sixty-one of the seventy-three dis-
trict courts, that proceedings were commenced in 4,670 cases alleging
illegal manufacture, in which 3,750 defendants were found guilty; and
proceedings were commenced in 3,303 cases alleging illegal transportation
(including 10 for importation), in which 2,672 defendants were found
guilty.
No court was able, however, to give exact data for the full six-year
period.
An opinion has been rendered by the Attorney General to the Com-
missioner of Public Safety as to the powers of the state pohce under
existing law with respect to arrests and seizure for violation of the state
and federal law relating to the liquor traffic.
The repeal of the Baby Volstead Act leaves the state liquor law (G. L.,
c. 138) substantially as it was between January, 1921 (when the Gen-
eral Laws were codified) and December 4, 1924, the date when the Baby
Volstead Act became effective.
6. Relative to Establishment of Schools for Training of Police Officers.
Some thought should be given to the improvement of the method of
investigation and detection of crime so that the number of crimes which
are unsolved and the number of criminals who avoid being apprehended
and convicted will be reduced. Crime commissions have been appointed
in various States to make a study of this matter. The opinion has been
advanced that this condition is in no small measure due to the fact that
the law-breaker makes use of the most modern methods, while the police
officers have not had the benefit of any special training in the prevention
and detection of crime.
I believe that this condition would be remedied materially if police
officers from different cities and towns in the Commonwealth had the
opportunity to attend a school established by the State, where special
instruction in the matter of prevention and detection of crime might be
had. I recommend legislation enabling members of the police force to
receive this instruction.
7. Amendment of St. 1925, c. 330 (relating to Construction of the "South-
ern Artery"), extending Certain Privileges in the Land taken for
Such Artery to Cities and Towns coursed by it.
St. 1925, c. 330, as amended, authorized the Department of Public Works
to take land for certain ways, with title in the Commonwealth, though it
provided they should be city ways. This is anomalous. It also provided
20 P.D. 12.
that the department should construct the ways. In the event that a city
should desire to build a sidewalk, the walk must be built on state-owned
land, unless the way be constructed to the full width of land taken. Other
odd situations have resulted. Senate Bill No. 437, 1930, amending St.
1925, c. 330, § 7, was designed, in part, to harmonize original provisions of
§ 7 with facts disclosed by experience. I recommend consideration of
Senate Bill No. 437, 1930.
8. A Commission to consider the Establishment of Domestic Relations
or Family Courts.
I endorse the recommendation of the Commission on Child Welfare that
a special commission be created to consider the estabhshment of courts of
family or domestic relations. Such matters are now heard in different
courts or in different sessions of the same court, according to their nature.
They should be heard as much as possible by a single court. Measures in
this regard should be considered by the Legislature only after special and
careful study by a commission appointed for the purpose.
9. Restoration of Benefits Lost to Unmarried Widows and Dependent
Children of Call Firemen through Operation of Certain Pro\isions
of St. 1930, CO. 182 and 241.
St. 1930, c. 241, amending G. L., c. 32, § 89, after providing the amount
of benefits payable to unmarried widows and to minor and incapacitated
children, contains this limitation :
The total amount of all such annuities shall not exceed the annual rate of com-
pensation received by such deceased person at the date of his death. . . .
Prior to the passage of chapter 241 and of chapter 182 of the Acts of 1930,
which said chapter 241 amended, it was possible for the dependents of a
call fireman, killed or dying from injuries received in the performance of
his duty, to receive a payment of $2,500 from the Commonwealth under
G. L., c. 48, § 83, and to receive in addition an annuity not to exceed $300
per year under G. L., c. 32, § 88, as amended, — provided that said section
88 had been accepted by the city or town from which the payment was to
be made. These benefits were lost, however, on the passage of said chapters
182 and 241 because of certain provisions contained in sections 2 and_^3 of
said chapter 182. In their place were substituted the benefits of^tsaid
chapter 241, with the limitation recited above, which were necessarily less,
because the work of call firemen is part-time employment and the annual
rate of compensation in a large number of cases does not exceed $40 per
year.
It would appear that this was done through inadvertence. I recommend
that chapter 241 of the Acts of 1930 be amended so that the payment to the
P.D. 12. 21
dependents of a call fireman, and of a call policeman if likewise affected,
killed under the circumstances recited therein, shall be the same as the
payment to the dependents of a permanent fireman, or permanent poHce-
man, of the same grade or performing the same duties.
10. Amendments to the State Constitution enabling Simplification
Both in the Description of Measures and the Form of Questions
presented to the Voters.
Art. XLVIII, The Initiative, II, "Initiative Petitions," § 3 (relating
to the mode of originating initiative petitions), provides substantially as
follows: — (1) that a petition for a proposed measure must be signed by
ten qualified voters and (2) submitted to the Attorney General and (3)
certified by him to be in proper form for submission to the people, and
(4) filed with the Secretary, and (5) that the Attorney General shall pre-
pare a description of the measure and (6) that the Secretary of the Com-
monwealth shall prepare blanks for the obtaining of the necessary twenty
thousand signatures of qualified voters, and (7) that the Secretary shall
print at the top of each blank a description of the proposed measure as such
description will appear on the ballot. Similar procedure is required by Art.
XLVIil, The Referendum, III, "Referendum Petitions," § 3 (relating to
mode of petitioning for the suspension of a law and a referendum thereon),
and § 4 (relating to petitions for referendum on an emergency law or a
law the suspension of which is not asked for). Both sections have a
provision that, after such petitions have been signed by ten qualified
voters and filed with the Secretary of the Commonwealth, the Secretary
shall provide blanks and shall print at the top of each blank a description of
the proposed law as such description will appear on the ballot.
In Art. XLVIII, General Provisions, III, "Form of Ballot," it is
provided that each proposed amendment to the Constitution, and each
law submitted to the people, shall be described on the ballot by a descrip-
tion, and that in the form of the question, in the case of an amendment to
the Constitution or of a proposed law, the following words shall be
used : —
Shall an amendment to the constitution (or law) (here insert description, and
state, in distinctive type, whether approved or disapproved by the general court,
and by what vote thereon) be approved?
General Provisions, IV, "Information for Voters," provides that the
Secretary of the Commonwealth shall cause to be printed and sent to each
registered voter the full text of every measure, a statement of the votes of
the General Court on the measure, and a description of the measure.
Thus it will appear that there must be a description of the proposed law
(1) on the blanks for the securing of the signatures and (2) upon the
22 P.D. 12
ballot and (3) in the information sent to the voters. The Constitution
specifically requires that the description on the blanks and the descrip-
tion on the ballot shall be the same. The Supreme Judicial Court has
stated that —
It would seem to be rational to infer that the purpose of the requirement that
a description of the proposed law. be printed on the initiative petition blanks,
pro\dded by the Secretary of the Commonwealth to be signed by the requisite
twenty thousand qualified voters, is that such signers may have before their ej'-es
and in their minds when deciding whether to sign the petition an impartial state-
ment of the dominant and essential provisions of the proposed law so that thereby
they may obtain an accurate conception of its main characteristics.
The Constitution requires, as stated therein and as interpreted by the
Supreme Judicial Court, that "the description must be printed on the
ballot." The nature of this description, as expressed by the Supreme
Judicial Court, must be
a fair portrayal of the chief features of the proposed law in words of plain mean-
ing, so that it can be understood by the persons entitled to vote. ... It must
be complete enough to convey an intelligible idea of the scope and import of the
proposed law. It ought not to be clouded by undue detail, nor yet so abbreviated
as not to be readily comprehensible. It ought to be free from any misleading
tendency, whether of amplification, of omission, or of fallacy. It must contain no
partisan coloring. It must in every particular be fair to the voter to the end that
intelligent and enUghtened judgment may be exercised by the ordinary person in
deciding how to mark the ballot. The provisions of said art. 48 touching the de-
scription are mandatory and not simply directory. They are highly important.
There must be compliance with them.
It therefore is seen that the description appearing on the ballot is that
description printed on the blanks for obtaining the necessary twenty
thousand signatures. Such description on the blanks must satisfy not
only the Court's ruUng of (1) "an impartial statement of the dominant
and essential provisions of the proposed law so that thereby they (the
signers when deciding whether to sign the petition) may obtain an accu-
rate conception of its main characteristics ", but also (to qualify as a descrip-
tion on the ballot) must be (2) "a fair portrayal of the chief features of the
proposed law in words of plain meaning," (3) "complete enough to convey
an intelhgible idea of the scope and import of the proposed law," (4) "not
clouded by undue detail, nor yet so abbreviated as not to be readily com-
prehensible," (5) "free from any misleading tendency, whether of am-
plification, of omission, or of fallacy," (6) containing "no partisan color-
ing," (7) '*in every particular fair to the voter, to the end (8) that intelli-
gent and enhghtened judgment may be exercised by the ordinary person
in deciding how to mark the ballot."
A legislator has before him the full context of a proposed law or a consti-
tutional amendment for examination of those details upon which oftentimes
P.D. 12. 23
his vote as to the whole measure depends. I assume it was the purpose of
the Constitutional Convention, in providing that such a description as set
forth above should appear on the ballot, that the voter should Hkewise
know the details upon which his exercise of judgment should depend, since
by his vote he would himself be performing the functions of a legislator.
But the mere fact that a voter is confronted in a booth with a recital of
details prevents him from observation and consideration of their effect.
The use in the description of any words, capable of misconstruction, or use
of an abbreviated form, might give rise to legal proceedings testing whether
the description complied in all respects with the requirements prescribed
by the Supreme Judicial Court. In the event it should be found, in such
proceedings, that the description had not so complied, the initiative and
referendum measures, after all the labor of their petitioners, might fail.
The use of terms identical with those in the text of a proposed law, while
designed to meet the requirements and thus safeguard the law, has a de-
terring effect upon voters as to a complete reading of the description.
In the event that the proposed amendment or law is lengthy, the
description, to comply with the requirements, cannot possibly be brief.
For instance, a constitutional amendment appearing on the ballot this year,
providing for at least five changes, necessitated not only recitation of the
changes but a recitation of the conditions sought to be changed. Even then
the voter was not fully enlightened thereby because the reasons for the
changes and their practical effect could not be set forth, since these could
not appear as a description. Furthermore, as Art. XLVIII, General Pro-
visions, IV (providing that the Secretary of the Commonwealth circularize
information to the voters), does not provide, in the case of constitutional
amendments, for any statement similar to that provided in case of meas-
ures, no explanatory statement concerning an amendment could be set
forth therein.
Again, initiative petitions for proposed measures filed for certification,
often contain as many as seventy sections. It will at once be seen that a
proposed measure of seventy sections, together with subsidiary provisions,
cannot be described briefly, for, in doing so, some detail might be omitted,
which, upon litigation contesting its validity, might be found to have been
necessary.
Hence, change is necessary whereby a recitation of the general substance
of a measure may be substituted for a detailed description.
A description by title might well suffice in some cases. Yet a title might
be such that, though true, if the contents of the measure were made more
fully known, the voter would not approve it. Again, in limiting a descrip-
tion to a title, it might be that all the purposes of the provisions could not
be merged therein. Moreover, when petitioners present an initiative they
attach a title. Such title may be "easily susceptible of being misunder-
stood." The Supreme Judicial Court has found one to have been so. The
recitation of a title used by the petitioners may, as a matter of law, render
24 P.D. 12.
the description "defective." Consequently, if a description be by title, it
should be one which the drafter of the description may formulate.
Voters receive information by circular of the full text of every proposed
constitutional amendment and of every measure. Consequently, all that
need appear on the ballot is a description sufficient to enable the voter to
identify any particular amendment or measure. This may be accomplished
by a title or by a description of its general substance.
The difficulty with this solution is that the description 'printed on the
ballot must he the same as that printed on the blanks for securing the necessary
twenty thousand signatures. At the time of securing these signatures, of
course no information has been circularized. If a description by title or of
general substance be permitted for description on the ballot, it might be
that it would not satisfy the requirement prescribed for a description on
the blanks, namely,
that signers may have before their eyes and in their minds when deciding whether
to sign the petition an impartial statement of the dominant and essential provisions
of the proposed law so that thereby they may obtain an accurate conception of
its main characteristics.
Hence it appears that either the Constitution must be changed so that the
description on the blanks need not be the same as on the ballot, or, if the
same, that the description on the blanks may be likewise by title or by
general substance.
Another cause of confusion is the form required by the Constitution in
which the question must be put. The form is —
Shall an amendment to the constitution or law (here insert description, and
whether approved or disapproved by the general court, and by what vote) be
approved?
The question is suspended to the end. I believe it would be clearer if the
form were:
Shall a law, approved (or disapproved) by the general court, and (by what vote) ,
be approved, which is entitled or provides (here insert description or title or both) .
I think that a description should not be limited to a title, nor to a descrip-
tion of its general substance, but should enable use of either or both, as the
drafter of the description may deem sufficient or necessary.
11. Relating to Matters having to do with the Sale of Securities.
(a) Investigation of Sale of Page & Shaw Stock.
As a result of numerous complaints received at this office in May, I
conducted an extensive investigation into the methods employed by
P.D. 12. 25
certain officials of the company, promoters and salesmen, in the sale of
the stock of the Page & Shaw Co., Inc., of Cambridge, Mass.
This investigation was conducted with the assistance of and in coopera-
tion with the state police. As a result two of the principal participants
in the stock-selHng campaign were arrested at Springfield on May 21,
1930. I referred the evidence secured to District Attorney Robert T.
Bushnell, for the Northern District, where the transactions had occurred,
and most commendable vigorous prosecution quickly followed.
(6) Further Regulation of the Sales of Securities.
1. That brokers and salesmen file bonds for indemnification against
losses through fraud.
The Department of Public Utihties grants permits to brokers to engage
in the sale of stock. I recommend that a bond to the State, in an amount
satisfactory to the department, be required, as well, for the indemnifi-
cation of any purchaser of stock, in the event of any fraud in any sale of
stock; and that no person shall sell any stock until he has filed such an
indemnification bond.
2. That representations as to stock include statements oral and written.
G.L., c. 266, § 92, already has provisions prohibiting the making of
certain statements tending to give a less or greater apparent value to
shares, bonds and assets other than they possess. I recommend amend-
ment further defining such statement as one either "oral or written,"
and defining an exaggerated statement, as one exaggerated "in whole
or in part." This may be accomphshed by inserting the words "oral or
written" after the word "statement" in the third line; and the words
"in whole or in part" after the word "exaggerated" in the eighth line.
3. That inquirers of the De-partment of Public Utilities for information
as to certain securities may receive such information without personal visit
to the department.
G. L., c. 110 A, § 10 (a) provides that the Department of Public Utili-
ties shall keep open to public inspection "all information received by
the commission concerning securities found by it to be fraudulent."
This information should be made applicable to inquiries by mail; facili-
ties for rendering such service to the people should be provided.
4. That those e tig aged in selling securities shall file further detailed in-
formation.
G. L., c. IIOA, § 4, sets forth the information requisite to be filed with
the department. This information is limited; for instance, subsection
(6) requires statement only as to the state or sovereign power under which
the corporation is organized. Certified copy of the articles of incorpora-
tion, association and trust and every amendment when and as made
should be required.
26 P.D. 12.
5. That the act he amended so as to include '' investment contracts."
In G. L., c. IIOA, § 2 (c), the definition of "security" does not include
an "investment contract." Enterprises, known to be for investment
purposes, but whose offerings are so phrased that in a strict legal sense
non "securities" are sold, are thus excepted. For instance, there are
"ranching service contracts," under which persons buy a certain number
of animals and the ranch enterprise agrees to designate and set aside the
animals for breeding purposes, with a charge of a certain per cent of the
number of offspring as compensation for raising them.
6. That the Department of Public Utilities he given specific authority to
investigate complaints against persons who are not registered as well as those
who are.
Some uncertainty exists as to whether or not it is properly within the
jurisdiction of the Department of Public Utilities to investigate complaints
of violations of the Sale of Securities Act in cases where a person against
whom a complaint is made is not a registered broker or salesman under
the provisions of G. L., c. llOA, § 8.
I recommend that the Department of Public Utilities be given specific
authority to investigate such cases and to move, though no complaints
have been made, to ascertain whether unregistered persons ought to be
registered. This may be done by amending G. L., c. llOA, § 11 (d).
7. That stock of purchasers from brokers, upon which there has heen only
a part cash payment, may not he pledged by brokers other than as collateral
for loans from banks, thus preventing possible release of such stock for stock
market manipulation.
It is my belief that certain practices in stock exchange transactions have
resulted in as great losses to the people as swindles, and that these prac-
tices are permitted to continue by purchasers of stock, through ignorance
of their existence and effect.
A purchaser of stock, through a broker, on part cash pajrment, receives
a memorandum of the sale, describing the stock, price, amount, tax and
commission. On such a memorandum is universally printed a notice.
This notice recites the terms of understanding on which the actual purchase
or sale is contemplated.
Among other terms are these :
that all securities carried to secure your account may be used by us when neces-
sary for deliveries in the usual course of business or loaned or pledged by us either
for the sum due thereon or for a greater sum and either separately or together
with other securities, and that all such securities shall be considered by you as
remaining subject to our control. All securities so carried may be bought or sold
at public or private sale without notice when necessary for our protection. . . .
This language appears innocent. The purchaser naturally assumes
that, as he has made but part payment on the stock, these terms are to
enable the broker, by use of the stock as collateral, to borrow the balance
P.D. 12. 27
from a bank, rather than tie up his own capital. These very terms, as
they do not stipulate that the stock may be pledged or loaned only to a
bank, enable the perpetration, as I believe, of most nefarious transactions,
to the great damage of the purchaser, of holders of like stock, and to the
great harm of the people. I believe the recitation of these terms enables
uses which are indefensible.
In order to push the price of any stock down, manipulators throw as
much stock into the market as possible. They do this so they may buy
it for themselves at low prices, and sell later on. Such manipulators
search for available stock. The stock, for which the purchaser has made
part payment, is available. The manipulators get the stock from the
broker, held under the terms recited in the memorandum, pledge it to
him as collateral for loan of the cash balance due. Incidentally, I believe
it to be the general practice that the manipulator charges no interest on
this loan. He is indeed well repaid by the favor of use of the stock.
Meanwhile the purchaser continues to pay interest to the broker on his
balance due. The manipulator dumps the stock into the market and
reduces the market price of the stock. Thus, through uses permitted by the
terms, so innocent in appearance, the purchaser is undone, all the holders
of similar stock suffer reverses through the fall in price; business condi-
tions are disturbed through the havoc caused, and the people suffer loss
of employment on construction work of enterprises handicapped or wrecked
through loss of capital. The irony of it all is that the purchaser's own
stock has been used to lessen its value, and that, by his own assent, he
has enabled such use.
It may be that the dumping of stock on the market may serve to check
an excessive inflation of prices. When stocks are on the rise I do not
believe the operation has material effect. It appears to be done mostly
when stocks are on the decline. Whether the operation itself be justified
as a natural incident to supply and demand, the purpose of the manipu-
lators, in coralling the stock from the brokers, is selfish greed. But for
the terms, the use of which enables this operation, these depredations
would be greatly handicapped. It is high time, and particularly now,
that the people show whether they or these manipulators are masters.
I recommend legislation prohibiting this practice; that no member or
firm in the exchanges, nor any one in their behalf, shall be permitted to
loan their customers' stock other than as bank collateral; that the notice
on the memorandum shall expressly so stipulate; that the Department of
Public Utilities may deny all privileges to brokers who do so; that the
customer, in case his stock is loaned, other than as bank collateral, may,
in event of loss to him through loan other than as bank collateral, recover
such loss.
8. That certain provisions for regulating '^Investment Trusts^' he con-
sidered.
(a) That "Investment Trust" shall include investment trusts of the
28 P.D. 12.
fixed, semi-fixed, general management, and restricted management types,
trading companies, management companies, holding companies, and finance
companies, provided it shall appear —
(1) They have a portfolio of their own and invest and reinvest their own funds
as part of their business; and
(2) Issue shares in themselves for sale to the pubUc, in "warrant", "syndicate",
"intermediate" form or "free" shares, which are transferable upon issuance or at
a future time.
(6) That investment trusts with a capital structure of SI, 000,000 or
over, and with subscribers over 100 in number shall be incorporated.
(c) That such trusts shall not trade in their own shares.
(d) That such trusts shall purchase their own shares of original issu-
ance only for the purpose of retirement and then at not more than asset
value.
(e) That the operating management consist of not less than five trustees
or directors.
(/) That there shall be no ownership control of investment trusts by
other trusts or corporations or persons subservient to other trusts or
corporations.
(g) That the managing of the investment trust's portfolio (by con-
tract or otherwise) shall not be by persons outside the trust organization.
(h) That there shall not be payment of dividends in cash or scrip out
of capital or return of capital.
(i) That there shall not be payment of dividends when insolvent at
the time of computation for such payment.
0) That deviation by officers, trustees and/or directors, from the re-
strictions and limitations set out in the declaration of trust, certificate
of incorporation or by-laws, causing financial loss to the shareholders,
shall be subject to penalty as well as civil liability.
Conclusion.
I express my appreciation to the Assistant Attorneys General for their
faithful and able service, to all others associated with me in the work of
the department for their loyalty and efficiency, and to the district
attorneys, the state police and police of the cities and towns for their
splendid co-operation.
Respectfully submitted,
JOSEPH E. WARNER,
Attorney General.
P.D. 12. 29
DETAILS.
1. Disposition of indictments pending Nov. 30, 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 June 17, 1929, and pleaded not guilty;
committed to the Danvers State Hospital for observation, Oct. 7, 1929; trial
January, 1930, verdict of not guilty by reason of insanity; thereupon com-
mitted to Bridgewater State Hospital for life.
Northern District (Middlesex County cases: in charge of District
Attorney Robert T. Bushnell).
Gerard Capello, alias.
Indicted December, 1929, for the murder of Edward C. Ross, at Cambridge, on
Sept. 29, 1925; arraigned Jan. 27, 1930, and pleaded not guilty; nolle prosequi
May 19, 1930.
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; June 19, 1930, committed to Bridgewater State Hospital.
Southeastern District (in charge of District Attorney Winfield M.
Wilbar).
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; Feb. 27, 1930, adjudged insane and committed to Bridgewater State
Hospital.
Southern District (in charge of District Attorney William C. Crossley).
Charles F. Lewis.
Indicted in Bristol County, February, 1927, for the murder of Charles Walker;
arraigned June 18, 1930, and pleaded not guilty; adjudged insane, and there-
upon committed to the Bridgewater State Hospital for life.
SufEolk 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;
Rocco Cassaro arraigned Jan. 2, 1930, and pleaded not guilty; trial January,
1930; verdict of not guilty as to Cassaro; Carmelo Garufo arraigned Jan. 21,
1930, and pleaded not guilty; Jan. 30, 1930, motion for directed verdict of
not guilty allowed as to Garufo.
30 P.D. 12.
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 groimd of newly discovered evidence allowed March 22, 1929;
second trial September, 1930; verdict of not guilty.
James F. Doyle.
Indicted March, 1929, for the murder of Mary F. Doyle on Feb. 11, 1929;
adjudged insane and committed to the Bridge water State Hospital.
2. Indictments found and dispositions since Nov. 30, 1929 :
Eastern District (in charge of District Attorney William G. Clark).
Paul Smith, George A. Leet and Earl R. Baker.
Indicted in Essex County, January, 1930, for the murder of William J. Fendall,
at Saugus, on Jan. 2, 1930; Paul Smith arraigned Jan. 20, 1930, and George
A. Leet and Earl R. Baker arraigned Jan. 27, 1930, and each pleaded not
guilty; March 12, 1930, Paul Smith and Earl R. Baker retracted former
pleas and pleaded guilty to murder in the second degree; pleas accepted;
sentenced thereupon to State Prison for life; April 8, 1930, nolle prosequi as
to George A. Leet.
Northern District (Middlesex County cases: in charge of District At-
torney Robert T. Bushnell).
Carmine Cavaretta.
Indicted February, 1930, for the murder of Antonio Gallo, at Newton, on
Jan. 22, 1930; arraigned Feb. G, 1930, and pleaded not guilty; trial March,
1930, during which he retracted former plea and pleaded guilty to man-
slaughter, which was accepted; thereupon sentenced to State Prison for
not less than eighteen years nor more than twenty years.
Nick Mazzo.
Indicted June, 1930, for the murder of Carmen Damelio, at Cambridge, on
June 20, 1930; arraigned July 3, 1930, and pleaded not guilty; later
retracted former plea and pleaded guilty to manslaughter; plea accepted;
sentenced thereupon to State Prison for not less than seven years nor more
than ten years.
Charles F. Nickerson.
Indicted September, 1930, for the murder of Etta TowTisend, at Reading,
on June 16, 1930; arraigned Sept. 8, 1930, and pleaded not guilty; Nov,
14, 1930, retracted former plea and pleaded guilty to manslaughter; plea
accepted; sentenced thereupon to State Prison for not less than three years
nor more than five years.
P.D. 12. 31
Southeastern District (in charge of District Attorney Winfield M.
Wilbar).
Manuel Fernandes.
Indicted in Plymouth County, February, 1930, for the murder of Julia Pina,
at Wareham, on Oct. 14, 1929; arraigned Feb. 12, 1930, and pleaded guilty
to murder in the second degree; plea accepted; sentenced thereupon to
State Prison for life.
George Nardi.
Indicted in Plymouth County, February, 1930, for the murder of Donato
Nardi, at Brockton, on Jan. 14, 1930; arraigned June 11, 1930, and pleaded
guilty to manslaughter; plea accepted; Sentenced thereupon to one year
in the house of correction.
Southern District (in charge of District Attorney WilHam C. Crossley).
Albert LaPlante.
Indicted in Bristol County, June, 1930, for the murder of Anna N. LaPlante,
at Dartmouth, on May 24, 1930; arraigned June 25, 1930, and pleaded
not guilty; found not guilty by reason of insanity, and on June 25, 1930,
committed to the Bridgewater State Hospital for life.
Suffolk District (Suffolk County cases: in charge of District Attorney
William J. Foley).
Herbert F. Joyce.
Indicted January, 1930, for the murder of Margaret Joyce on Dec. 16,
1929; arraigned Feb. 13, 1930, and pleaded not guilty; Feb. 25, 1930, re-
tracted former plea and pleaded guilty to murder in the second degree;
plea accepted; sentenced thereupon to State Prison for life.
Louis Kratter.
Indicted December, 1929, for the murder of Louis Gorin on Nov. 5, 1929;
adjudged insane and committed to the Bridgewater State Hospital.
Garabad Minasian.
Indicted August, 1930, for the murder of Lucy Minasian on Aug. 3, 1930;
adjudged insane and committed to Bridgewater State Hospital.
Moe Newman.
Indicted January, 1930, for the murder of Samuel Reinstein on Sept. 13, 1929;
arraigned Feb. 18, 1930, and pleaded not guilty; trial November, 1930;
verdict of not guilty.
James Threadgill.
Indicted February, 1930, for the murder of James J. Troy on Jan. 13, 1930;
arraigned Feb. 7, 1930, and pleaded not guilty; trial March, 1930; verdict
of guilty of murder in the second degree; thereupon sentenced to State
Prison for life.
32 P.D. 12.
3. Pending indictments and status:
Eastern District (in charge of District Attorney William G. Clark).
Bernardo S. Thompson.
Indicted in Essex County, September, 1930, for the murder of Katherine E.
Wight, at Saugus, on July 16, 1930; arraigned Sept. 22, 1930, and pleaded
not guilty; Sept. 22, 1930, committed to Danvers State Hospital for ob-
servation.
Middle District (in charge of District Attorney Edwin G. Norman).
Leon Trudeau.
Indicted in Worcester County, May, 1930, for the murder of Cecelia Trudeau,
at Webster, on Feb. 22, 1930; arraigned May 21, 1930, and pleaded not
guilty; trial June, 1930; verdict of guilty of murder in the second degree;
claim of appeal pending.
Northern District (Middlesex County cases: in charge of District At-
torney Robert T. Bushnell).
Joseph Belenski, alias.
Indicted September, 1930, for the murder of Wincenty Stefanowicz, alias, at
Stow, on May 25, 1930; arraigned Sept. 8, 1930, and pleaded not guilty;
trial November, 1930; verdict of guilty of murder in the first degree; claim
of appeal pending.
John Furtado.
Indicted November, 1930, for the murder of Antonia Furtado, at Cambridge,
on Oct. 19, 1930; arraigned Nov. 6, 1930, and pleaded not guilty; trial
December, 1930; verdict of guilty of murder in the first degree; motion for
new trial and claim of appeal pending.
Joaquim Pita Soaris.
Indicted March, 1930, for the murder of Angelina Rodrigues, at Lowell, on
March 2, 1930; arraigned March 26, 1930, and pleaded not guilty; trial
May, 1930; verdict of guilty of murder in the first degree; motion for new
trial denied; claim of appeal pending.
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.
Thomas G. Healey.
Indicted in Norfollv County, September, 1930, for the murder of Joseph P.
O'Brien, at Brookline, on Aug. 3, 1930; arraigned Sept. 15, 1930, and
pleaded not guilty; released on bail Dec. 16, 1930.
P.D. 12. 33
Suffolk District (Suffolk County cases: in charge of District Attorney
William J. Foley).
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; second trial September, 1930; verdict of guilty of murder in the first
degree.
Leong Sang, alias, and William Fung, 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, Fimg on March 28, 1930, and Yun on Aug. 12,
1929, and each pleaded not guilty; trial April, 1930; verdict of guilty of
murder in the first degree as to Sang, and verdicts of not guilty as to Fung
and Yun; Sang's motion for new trial and claim of appeal denied.
34 P.D. 12.
OPINIONS.
Small Loans — Licenses — Mode of Doing Business.
It is a question of fact for the determination of the Commissioner of
Banks whether a corporation, however organized or operating, en-
gages in the business of making small loans, as described in the ap-
plicable statute. If it does so engage in such business, it must be
licensed.
Dec. 16, 1929.
Hon. Roy A. Hovey, Commissioner of Banks.
Dear Sir: — You have asked my opinion as to whether the business
of making loans in the amount of three hundred dollars or less, as carried
on in the following manner, requires a license under G. L., c. 140, § 96.
You have described the manner in which the business is done as follows : —
"A corporation contemplates the issue of ten thousand shares of pre-
ferred stock, par value $10.00, and ten thousand shares of common stock,
no par value, to be offered for public sale at $20.00 per unit of two preferred
shares and one common share. The plan has secured the tentative ap-
proval of the Department of Public Utilities, Sale of Securities Division.
The purpose of the corporation is to lend money at the maximum legal
rate of interest for the specialized purpose of purchasing fuel for home
consumption. Repayment is to be made in weekly installments. The
mechanics of the loan will be in the form of an order of the corporation
upon the person selling the fuel, to whom payment will be made directly."
I am of the opinion that the mode in which a corporation is organized,
or the particular purpose for which its loans of three hundred dollars or
less are to be used, or the fact that the money which is borrowed is by
agreement with the borrower paid to a third person for the former's
benefit, as described by you in your letter, is immaterial to a determination
of whether or not such corporation is required to be licensed under said
section 96. Irrespective of the foregoing facts relative to the mode and
manner in which a corporation carries on its operations, if, as a matter of
fact, it directly or indirectly engages "in the business of making loans of
three hundred dollars or less, and if the amount to be paid on any such
loan for interest and expenses exceeds in the aggregate an amount equiva-
lent to twelve per cent per annum upon the sum loaned," as set forth in
said section 96, it is required to be licensed.
If you determine, as a matter of fact, that a corporation engages in the
business described in section 96, as above quoted, it is your duty to see
that such a corporation is Hcensed, or that the proper authorities are re-
quested to institute a prosecution against it under the provisions of said
section 96.
Very truly yours,
Joseph E. Warner, Attorney General.
Civil Service — Superintendent of Construction in the Department of School
Buildings in Boston — Deputy Superintendents.
The position of superintendent of construction in the department of
school buildings in Boston is not within the provisions of the civil
service laws.
The positions of deputy superintendents in said department are within
the provisions of the civil service laws.
P.D. 12. 35
Dec. 18, 1929.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir : — You have requested my opinion upon the following matter
now before you for consideration : —
"I respectfully request your official opinion as to whether or not the
position of superintendent of construction, created by St. 1929, c. 351,
§ 2, is under civil service."
The statute to which you refer, St. 1929, c. 351, in its pertinent parts
reads as follows : —
"The department of school buildings of the city of Boston is hereby
established and shall be under the charge of a superintendent of construc-
tion who shall be elected by the board of commissioners and shall serve at
the pleasure of said board. His salary shall be established by said board
of commissioners, with the approval of the school committee, but shall not
exceed twelve thousand dollars per annum. He shall make a written re-
port to the mayor, to the school committee and to the board of commis-
sioners annually or oftener as the mayor, or the school committee or the
board of commissioners may require and in such manner and detail as
may be required."
You have called my attention to the fact that in section 1 of said statute,
with relation to the member of the board of commissioners of school build-
ings who is to be appointed by the mayor, it is specifically stated that he
shall be so appointed "without approval by the civil service commis-
sioners." It does not seem to me that the existence in the statute of this
provision, with relation to the appointment of a commissioner who is to
serve for a term of years fixed by the act, is significant as to the legislative
intent in relation to the provisions of section 2 as to the position of the
superintendent of construction, who is to be elected by the board of com-
missioners and "shall serve at the pleasure of said board." As no power
of removal of the said commissioner before the expiration of his statutory
term was vested by the statute in any one, the same considerations would
not necessarily apply to such commissioner with regard to civil service as
might apply to a superintendent whose removal by the appointing body was
particularly authorized.
It has been held by several of my predecessors in office that, where
power to remove a State employee or official is specifically vested in an
appointing body, such official is not within the provisions of the civil service
law and the regulations made thereunder.
In considering the provisions of the act creating the South Essex Sewer-
age Board, concerning employees, St. 1925, c. 339, § 3, which reads, in
part, as follows: —
"Said board shall from time to time appoint or employ such engineers,
experts, agents, officers, clerks and other employees as it may deem neces-
sary, shall determine their duties and compensation, which shall be paid
by the district, and may remove them at pleasure." —
a former Attorney General said (VII Op. Atty. Gen. 719, 720) : —
"The fact that the statute gives to the board the power to remove the
various employees named therein at its pleasure indicates that it was not
the intention of the Legislature that the board or its employees should be
subject to the requirements of the laws relative to civil service."
36 P.D. 12.
In considering the status of certain matrons at the house of detention in
the city of Boston, as affected by the civil service law, the applicable
statute being St. 1887, c. 234, § 3, wherein it was provided, among other
things, that such matrons "shall be appointed to hold office until removal,
and . . . may be removed at any time by said board by written order
stating the cause of removal," another of my predecessors in office said
(VI Op. Atty. Gen. 152, 155): —
"The strongest indication, however, that it was not intended that these
positions should be within the classified service is contained in the pro-
vision that the appointees ' shall be appointed to hold office until removal,
and they may be removed at any time by said board by written order
stating the cause of removal.' If they were appointed under civil service
they could not be removed at any time by the appointing board merely
upon a written order stating the cause of removal.
For the foregoing reasons I am of the opinion that the act of 1887, so far
as it relates to the chief matron and assistant chief matron, falls within the
exceptions to the general rule, which requires that a special act shall be
held to be subject to the provisions of a general law previously enacted,
and that these two positions are therefore not within the classified service."
Again, in an opinion relative to the position of an assistant register of
probate, appointed under St. 1921, c. 42, the then Attorney General said
(VI Op. Atty. Gen. 334, 335) : —
"An equally strong indication that the position of assistant register is
not within the civil service rules is contained in the provisions that, after
being appointed by the judges of probate, an assistant register shall hold
office for three years unless sooner removed by the judges. If assistant
registers were under civil service, they could not be removed at any time
during tenure of office by the appointing power, but would be subject to
removal only in compliance with the provisions of G. L., c. 31, § 43, which
is the section containing the provisions as to the removal of persons in the
classified public service of the Commonwealth."
And again, in the same opinion (VI Op. Atty. Gen. 334), with relation to
the position of clerk in the Probate Court for Suffolk County, as to which
the provisions of the apphcable statute, G. L., c. 217, § 28, were as follows: —
"The register for Suffolk county may, subject to the approval of the
judges of probate for said county, appoint a clerk and may remove him at
pleasure." —
it was said (p. 336) : —
"In the case of the Suffolk clerk, he may be removed at pleasure, and
this, in my opinion, takes him out of the civil service classification."
The words of the instant statute, that the said superintendent of con-
struction "shall serve at the pleasure of the board," indicate an intention
on the part of the Legislature to vest in the appointing power authority to
remove an incumbent of the instant office in the same way as is indicated
by the provisions of the statutes passed upon by my predecessors in office,
with whose conclusion I agree.
I am not unmindful of the language used in the opinion of the Supreme
Judicial Court in Robertson v. Coughlin, 196 Mass. 539. In that opinion
the court was considering a situation which had actually been created by a
particular mode of exercising the power of removal at pleasure, adopted
P.D. 12. 37
by a certain board. The court does not say in its opinion that another
mode of exercising the power of removal at pleasure might not have been
adopted by the board having the power of appointment and removal, and
it cannot be assumed that the commissioners appointed by the instant
statute will use their power in the precise mode which was adopted by the
board in Robertson v. Coughlin, supra. It cannot be said in advance of
action by the board of commissioners of school buildings that the words
"shall serve at the pleasure of the board" do not vest such power of re-
moval in that body as to place the position of superintendent of construc-
tion outside the action of the civil service laws or regulations.
As to the positions of deputy superintendents, provided for in St. 1929,
c. 351, § 4, there do not appear to be any provisions of the instant statute
which render the civil service law and the rules made thereunder inappli-
cable to them.
Very truly yours,
Joseph E. Warner, Attorney General.
Metropolitan Transit District — Powers of Trustees to borrow Money.
The trustees of the Metropolitan Transit District are authorized to bor-
row money temporarily, and to issue notes for the same, for the
purpose of providing funds for the payment of certain expenses when
no other funds are available for the purpose.
Dec. 30, 1929.
Trustees of the Metropolitan Transit District.
Gentlemen : — You request my opinion as to whether you are author-
ized, under St. 1929, c. 383, temporarily to borrow money, and issue notes
of the district therefor, in order to provide funds for certain current ex-
penses, such as office rental, stenographic service, etc., there being no funds
available to meet such expenses.
By section 1 of the act the district is given the power "of contracting
and doing other necessary acts relative to its property and affairs." Sec-
tion 2 provides that "the affairs of the district shall be managed by a
board of five trustees;" and that "the trustees may from time to time
appoint and at pleasure remove a clerk, treasurer and such agents and
employees for the district as they may deem necessary, and may determine
their duties and their compensation, which shall be paid by the district;
shall cause at all times accurate accounts to be kept of all expenditures
of the funds of the district; and shall make an annual report, containing
an abstract of such accounts, to the general court and to the metropolitan
transit council. . . . Except as herein otherwise provided, they shall have
full authority to represent the district, to have the care of its property
and the management of its business and affairs, . . ."
It may be assumed that the expenses to which you have reference are
deemed by the trustees to be necessary for the proper management of the
affairs of the district.
There being no funds now available for these expenses, the trustees have,
in my opinion, power to issue temporary notes of the district for the pur-
pose of providing such funds. Section 10 of the act contains the following
paragraph : —
"The trustees, in behalf of the district, may temporarily borrow money
and issue notes of the district therefor in anticipation of the issue of bonds,
or of receipts from taxation, or of income to be received, or to provide for
38 P.D. 12.
the payment of any obligations when due, for which funds are not avail-
able. No purchaser of such bonds or lender upon such notes shall be
bound to see to the application of the money paid or loaned."
The expenses to which you refer, when incurred, will become obligations
for the payment of which no funds will, unless now borrowed, be available.
In my opinion, the words of section 10, above quoted, are to be construed
as authorizing the issuance of temporary notes for the purpose of providing
such funds.
The money with which to pay the notes may, in my opinion, be ob-
tained by the trustees through the means set forth in section 12 of the act,
which provides that on or before June 15th of each year the trustees shall
certify to the State Treasurer the estimated amount required for the cur-
rent expenses of the district, "and shall also certify the amount required
to meet any lawful obligations of the district for which payment is not
otherwise provided"; and that the State Treasurer shall apportion such
amounts among the cities and towns of the district, collect such amounts
in the same manner as other State taxes assessed upon said cities and
towns, and pay over the amounts so collected to the district.
Very truly yours,
Joseph E. Warner, Attorney General.
Great Pond — Ice Company — Exclusion of Public.
An ice company, by marking out certain areas for ice cutting on a great
pond of twenty acres, may not exclude the public from the use of
such pond or such areas for fishing or skating.
Jan. 3, 1930.
Hon. William A. L. Bazeley, Commissioner of Conservation.
Dear Sir : — You have asked my opinion upon the following question : —
"On a natural great pond of twenty acres and upwards, can an ice
company mark off an area (after the ice has formed) and thereafter ex-
clude the public, such as fishermen and skaters, from going on said area?"
The subject of great ponds, and public rights therein and access thereto,
was considered at great length in an opinion rendered to you by one of
my predecessors in office. See VII Op. Atty. Gen. 262.
There has never been any judicial decision with relation to the precise
question you ask, but, without entering upon an exhaustive discussion of
the matter, I am of the opinion that neither an ice company nor anyone
else may mark off a portion of ice which is formed upon a great pond of
twenty acres and upwards and thereafter exclude the public, such as
fishermen and skaters, from such area, in the absence of specific legislation
or ancient grant.
As was said in the opinion of my predecessor before referred to, in con-
nection with great ponds : —
"Fishing, fowling, boating, bathing, skating . . . and the cutting and
taking of ice, are public rights which are free to all persons so far as they
do not interfere with the reasonable use of the ponds by others or with
the public right, except in cases where the Legislature has otherwise
directed."
It does not appear to me that the rights of an ice company which has
marked out certain areas of ice, and done nothing else, are superior to those
P.D. 12. 39
of other members of the general pubhc using the pond for fishing or skating,
and I therefore do not think that such uses by the general public may be
interfered with by such an ice company.
Very truly yours,
Joseph E. Warner, Attorney General.
Board of Dental Examiners — License — Suspension.
The Board of Dental Examiners has authority to suspend the license of
a dentist who violates any of the provisions of G. L., c. 112, § 44.
Jan. 4, 1930.
Mr. William F. Craig, Director of Registration.
Dear Sir: — You request my opinion as to whether the Board of
Dental Examiners has the right, under G. L., c. 112, § 61, to suspend the
authority to practice dentistry of one who has failed to comply with G. L.,
c. 112, § 44, as amended.
Said section 61 empowers the Board to suspend a license or authority
to practice if it appears to the Board that the holder of such certificate,
registration, license or authority "is insane, or is guilty of deceit, mal-
practice, gross misconduct in the practice of his profession, or of any
offence against the laws of the commonwealth relating thereto."
Section 44, as amended, reads as follows: —
"Every registered dentist when he begins practice, either by himself or
associated with or in the employ of another, shall forthwith notify the
board of his office address or addresses, and every registered dentist
practicing as aforesaid shall annually, before April first, pay to the board
a license fee of two dollars. Every registered dentist shall also promptly
notify the board of any change in his office address or addresses and shall
furnish such other information as the board may require. The board shall
publish annually complete lists of the names and office addresses of all
dentists registered and practicing in the commonwealth, arranged alpha-
betically by name and also by the towns where their offices are situated.
Every registered dentist shall exhibit his full name in plain readable
letters in each office or room where his business is transacted."
The provisions of section 44 relate to the practice of the profession of
dentistry; and by section 52 a penalty of fine or imprisonment is imposed
for violation of any of those provisions. Violation of any of the provisions
of section 44 is accordingly an offence against the laws of the Common-
wealth relating to the practice of the profession, and therefore the Board
has authority to act under the terms of section 61.
Very truly yours,
Joseph E. Warned, Attorney General.
Pension — Veteran — Soldiers' Home.
A veteran who is a member of the Soldiers' Home and also in its service
may receive, upon retirement from such service, a pension based
solely on his weekly wage.
Jan. 7, 1930.
Trustees of The Soldiers' Home in Massachusetts.
Gentlemen: — You have asked my opinion whether the provisions of
St. 1920, c. 204, are to be so construed as to entitle a member of The
40 P.D. 12.
Soldiers' Home in Massachusetts to a retirement pension, as provided for
in said statute, when said member also worked at the Home on a weekly-
salary.
I assume from your communication that the person seeking a pension
is a veteran of the Civil War, although you do not so state. If so, he is
otherwise qualified to be retired on a pension, provided that the fact that
he was a member of the Home and received free board and lodging does
not preclude him.
St. 1920, c. 204, now G. L., c. 32, § 51, provides as follows: —
"A veteran of the civil war who has been in the service of the soldiers'
home in Massachusetts for fifteen years, if incapacitated for active service,
may be retired by the trustees of the home, with the consent of the gov-
ernor and council, at one half the average rate of compensation paid to him
during the two years immediately preceding his retirement."
This section is a part of the system of pensions paid to veterans of the
Civil War, Spanish War and World War who have been in the service of
the Commonwealth or Soldiers' Home for a certain length of time and
who have become incapacitated for further service. (See G. L., c. 32,
§§49-60.)
The statute specifically states that a veteran who has been in the service
of the Home a certain time and has become incapacitated for further
service may be retired upon a pension, and makes no exception militating
against a veteran in the service of the Home who is also a member of the
Home and receiving free board and lodging. If the Legislature had meant
such veterans to have been excluded from the veterans' pension it would
have been an easy matter to have said so in the statute.
Presumably, as a member of the Home the veteran was entitled to his
free board, lodging and support. See act of incorporation, St. 1877, c. 218,
where it is stated that —
"Said trustees may receive, hold, manage . . . for the purpose of main-
taining in this Commonwealth a home for deserving soldiers and sailors
and such members of their families as said trustees may deem proper, and
under such conditions and regulations as said trustees may from time to
time prescribe."
See also Resolves of 1883, c. 27.
The fact that the veteran, a member of the Home, was employed by the
trustees in the capacity of janitor at a weekly wage for over fifteen years
brings him squarely within the purview of the statute, and the trustees
may retire him on a pension, calculated on the basis set forth in St. 1920,
c. 204.
Such compensation is to be based solely on the weekly wage paid in
cash, and must not take into account the value of his board and lodging.
St. 1922, c. 341, § 2, allowing additional compensation based on the value
of board and lodging provided to the veteran, does not apply to pensions
paid under G. L., c. 32, §§ 49-60, which includes St. 1920, c. 204. See
VII Op. Atty. Gen. 646; VI Op. Atty. Gen. 571; V Op. Atty. Gen. 634;
and III Op. Atty. Gen. 128 and 141.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 41
Department of Public Safety — Boiler Inspection — Certificate.
A certificate as a boiler inspector does not authorize the holder to inspect
for any company other than the one requesting the issuance of such
certificate, although another certificate may be issued upon the request
of a second company; but no certificate may issue upon a request
by two companies jointly.
Jan. 8, 1930.
Gen. Alfred F. Foote, Commissioner of Public Safety.
Dear Sir: — You request my opinion (1) as to whether a certificate of
competency as a boiler inspector, issued in connection with a request by
one insurance company, authorizes the holder to inspect for another com-
pany also; (2) whether the Department may issue two certificates to the
same person upon separate applications made in connection with two
different companies; and (3) whether the Department may issue a cer-
tificate upon a single application to inspect for two different companies
who join in the request accompanying the application.
I answer your first question in the negative. The statute, G. L., c. 146,
§ 62, provides for "a certificate of competency to inspect steam boilers
for the company which requested the examination." Such a certificate
cannot authorize inspection for some other company. Section 15 fobids
acting as an inspector for an insurance company without a certificate of
competency "under section sixty-two."
As to your second question, I see no reason why an applicant is dis-
qualified from receiving a certificate to inspect for a given company because
he has previously obtained a certificate to inspect for another company.
The Department, in my opinion, has authority to issue more than one
certificate to the same man.
I answer your third question in the negative. Said section 62 further
provides: "The certificate shall remain in force during his employment by
the company unless sooner revoked." Although words in the singular
number may be construed as plural, yet such a construction here would
lead to comphcations which I think were not intended.
Very truly yours,
Joseph E. Warner, Attorney General.
Department of Education — Contract — Employment of Labor.
A contract between the Department of Education and Harvard College
for the sale of steam and electricity need not contain provisions of
G. L., c. 149, § 34, with relation to the employment of labor.
Jan. 8, 1930.
Dr. Payson Smith, Commissioner of Education.
Dear Sir : — You have requested my opinion as to whether or not the
provision in regard to the employment of labor, referred to in G. L., c. 149,
§, 34, should be included in a proposed contract to be made between the
Department of Education and the Trustees of Harvard College for the
purchase by the former of steam and electricity from the power plant of
the Harvard Medical School, for use in the new building of the Massa-
chusetts School of Art.
G. L., c. 149, § 34, reads as follows: —
42 P.D. 12.
"Every contract, except for the purchase of material or supplies, to
which the commonwealth, or any county or any town which has accepted
section twenty of chapter one hundred and six of the Revised Laws, is a
party, involving the employment of laborers, workmen or mechanics,
shall contain a stipulation that no laborer, workman or mechanic working
within the commonwealth, in the employ of the contractor, sub-contractor
or other person doing or contracting to do the whole or a part of the work
contemplated by the contract, shall be requested or required to work more
than eight hours in any one day, and every such contract not containing
this stipulation shall be null and void."
It has previously been held by one of my predecessors in office, in an
opinion rendered to the Massachusetts District PoHce on March 25, 1912
(not published), in which opinion I concur, that a contract by a company
to supply gas to a pohtical subdivision was a contract for material and
supplies within the provisions of the then applicable statute. See also
III Op. Atty. Gen. 73.
I am of the opinion that the instant contract, which is one for the sale
of steam and electricity, is likewise such a contract for material or sup-
plies, and that under the foregoing terms of said G. L., c. 149, § 34, it is
not required to contain the provisions set forth in said statute relative to
the conditions of labor of those employed under its terms.
Very truly yours,
Joseph E. Warner, Attorney General.
Towns — Appropriations — Mosquito Control.
Since the passage of St. 1929, c. 288, towns have authority, both under
such statute and under the powers conferred upon local boards of
health prior thereto, to appropriate money for mosquito control.
Jan. 8, 1930.
Dr. Arthur W. Gilbert, Commissioner of Agriculture.
Dear Sir: — You have asked my opinion as to whether towns may
appropriate money, for the purpose of eradicating mosquitoes, in any
other way than that outlined in St. 1929, c. 288. That statute, amend-
ing G. L., c. 252, provides for the eradication of mosquitoes under the
direction of the reclamation board; and also provides that cities and
towns may initiate the proceedings therein described, where it appears
that the public health, safety or convenience will be promoted, and may
appropriate money for such purposes (§2). St. 1929, c. 288, also amends,
by section 6 thereof, G. L., c. 40, § 5, by providing that towns may ap-
propriate money "for the improvement of low lands and swamps and the
eradication of mosquitoes, as provided in chapter two hundred and fifty-
two."
You state that towns have in the past appropriated mone}^ for mos-
quito control, to be expended by the local boards of health. Presumably,
such expenditure has been made under G. L., c. Ill, § 132, which reads
as follows: —
"Land which is wet, rotten or spongy, or covered with stagnant water,
so as to be offensive to residents in its vicinity or injurious to health, shall
be deemed a nuisance, which the board of health of the town where it lies,
upon petition and hearing, may abate in the manner provided in the seven
P.D. 12. 43
following sections; but if the expense of abatement will exceed two thou-
sand dollars, such abatement shall not be made without a previous ap-
propriation therefor."
Perhaps, also, the money has been expended under other appHcable
statutory provisions.
In my opinion, whatever powers the towns had to act through their
local boards of health prior to the enactment of St. 1929, c. 288, they still
have. Said act of 1929 has no effect other than to give a town a right to
proceed under G. L., c. 252, as amended; it in no way affects existing
powers of local boards of health as set forth in G. L., c. Ill, § 132, or
in any other sections.
Very truly yours,
Joseph E. Warner, Attorney General.
Corrupt Practices — Political Committee — Initiative Petition.
The term "political committee" can be said to apply to a committee
organized to favor or oppose an initiative measure only after such
measure has passed through all the stages precedent to its being laid
before the voters.
Jan. 13, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You have requested my opinion on the two following
matters : —
"First: Is an organization formed for, or carrying on, activities to pro-
mote the success or defeat of a question which might later be submitted
to the voters as the result of an initiative petition, pursuant to Mass.
Const. Amend. XLVIII, considered a political committee under G. L.,
c. 50, § 1?
Second: If the reply to the first question is in the affirmative, when
would such organization begin to function as a committee, and when
should it file the names of its officers, as provided in G. L., c. 55, § 4?"
The words "political committee" are defined in G. L., c. 50, § 1, as
amended by St. 1928, c. 212, § 1, as follows: —
"^Political committee' shall apply only to a committee elected as pro-
vided in chapter fifty-two, except that in chapter fifty-five it shall also
apply, subject to the exception contained in section thirty-eight thereof,
to every other committee or combination of five or more voters of the com-
monwealth who shall aid or promote the success or defeat of a political party
or principle in a public election or shall favor or oppose the adoption or
rejection of a question submitted to the voters.''
From the wording of said statute it will be seen that with relation to a
question which may be submitted to the voters as the result of an initiative
petition, which is the particular subject matter of your inquiries, a com-
mittee favoring or opposing such a question does not fall within the
statutory definition of a "political committee," and hence is not subject
to the statutory regulations governing "political committees," which are
to be found in G. L., c. 55, as amended, until the subject matter of its
activities is a "question submitted to the voters."
44 P.D. 12.
It is necessary to determine in what sense the Legislature used the term
"submitted to the voters" in the particular statute, and from its context
I am of the opinion that they used it as meaning qualified or ready for
submission.
There is no provision in Mass. Const. Amend. XLVIII for the sub-
mission to the voters of a measure to be proposed by initiative petition
until after six separate and distinct enumerated conditions have been
complied with. Only after they have been fulfilled does the constitu-
tional mandate require such submission, in the following language: —
"then the secretary of the commonwealth shall submit such proposed law
to the people at the next state election."
To construe the word "submitted" in the instant statute as referring
to the physical presentation of the question of the adoption of the pro-
posed law to the voters on election day would be to rob the enactment
of all meaning, for the functions of a committee such as is referred to in
your letter are virtually at an end when the voters go to the polls. A
similar mode of construction, applied to the words of the instant statute
"in a public election," would likewise render meaningless the provision
relative to a form of committee referred to in said section immediately
before the form of committee now under consideration. It is a general
principle of the law of statutory construction that acts of the Legislature
should be construed, if possible, so as to give them force and effect, and
if more than one significance may reasonably be attached to the language
used, and a literal construction will make a statute absurd and of no
effect, the latter construction should not be followed.
After the six conditions precedent to the perfecting of an initiative
measure have been completed, the duty devolves upon the Secretary to
submit the same to the voters. I am of the opinion that at such time,
namely, that of the completion of all the conditions precedent to the
exercise of the Secretary's ministerial duty of laying the proposed law
before the voters, the question involved can be said to be "submitted to
the voters," as those words are used in the instant statute, in view of the
context and obvious import of the measure. At that time the term "po-
litical committee" can be said to apply to a committee which comes into
existence then, or has previously been constituted, to favor or oppose the
adoption or rejection of the question whether or not the measure proposed
by initiative petition shall become a law.
Very truly yours,
Joseph E. Warner, Attorney General.
State Hospitals — Support of Inmate — Guardian.
Recovery for the price of support furnished an inmate of a State hos-
pital may be enforced against such inmate's funds in the hands of a
guardian.
Jan. 13, 1930.
Dr. George M. Kline, Commissioner of Mental Diseases.
Dear Sir: — You have asked my opinion as to whether a guardian of
an insane woman in an institution for the insane, who has a husband
living, can be compelled to pay for the support of his ward from her own
estate.
P.D. 12. 45
The material parts of the pertinent statute, G. L., c. 123, § 96,
as amended, read as follows: —
"The price for the support of inmates of state hospitals, . . . shall be
determined by the department at a sum not exceeding ten dollars per
week for each person, and may he recovered of such persons or of the hus-
band, wife, father, mother, grandfather, grandmother, child or grandchild
if of sufficient ability. ... A married woman shall be subject to the
said liability as though sole. Such action shall be brought by the attorney
general in the name of the state treasurer.
Any person making payment for such support may recover the same,
by suit in equity . . . from any person primarily liable for such support,
or may have the amount so paid apportioned among those who are not
primarily liable, in proportion to their respective abihty to pay, and may
recover such apportionment.
Any guardian or conservator of such an inmate who, having property
of his ward in his possession or control exceeding two hundred dollars in
value, fails to pay, within three months after receipt of any bill therefor,
for his support at the rate determined by the department, shall, upon
application of the attorney general, forthwith be removed."
The foregoing provisions confer upon the Commonwealth the right to
recover for the price of her support from a female inmate of a State hos-
pital personally. A proper action to recover against her may be brought
by the Attorney General. Recovery upon the execution may be enforced
against the funds of the inmate in the hands of the guardian. Further-
more, it is provided in the third paragraph of said section 96, above set
forth, that it is the duty of the guardian to pay for such support of his
ward in the State hospital, irrespective of whether or not a suit be brought,
under penalty of his removal from office.
The application of the property of an insane ward by the guardian to
the payment of her support in a State hospital, as called for by the terms
of G. L., c. 123, § 96, is especially provided for by G. L., c. 201, § 25,
which reads as follows: —
''The guardian or conservator of a married woman shall not, except as
provided in section ninety-six of chapter one hundred and twenty-three,
apply the property of his ward to the maintenance of herself and her
family while she is married, unless he is thereto authorized by the probate
court on account of the inability of her husband suitably to maintain
her or them, or for other cause which the court considers sufficient."
As I have already pointed out by reference to the statute, suits to
recover for the price of support are to be begun by the Attorney General
at the instance of the State Treasurer.
Very truly yours,
Joseph E. Warner, Attorney General.
Division of Fisheries and Game — Wardens — Right to search Boats with-
out a Warrant — Arrest.
Wardens have the right to search without a warrant boats in coastal
waters, where there is reason to believe that fish or game unlawfully
taken may be found therein, and may arrest without a warrant, upon
such a boat, a person found violating fish or game laws.
46 P.D. 12.
Jan. 15, 1930.
Hon. William A. L. Bazeley, Commissioner of Conservation.
Dear Sir: — You request my opinion as to the right of wardens of
the Division of Fisheries and Game without a warrant to board boats
within the harbors or coastal waters of the Commonwealth for the purpose
of making search for suspected violations of fish and game laws, and for
making arrests for violations of said laws. I understand that the question
arises particularly in connection with violations of law by lobster fisher-
men. Lobsters are included within the designation of "fish," as used in
G. L., c. 130, §§ 5 and 6. See V Op. Atty. Gen. 589, 590.
The right to search any boat without a warrant, where there is reason
to believe that fish or game unlawfully taken may be found, is expressly
given by G. L., c. 130, § 6, as amended, which reads as follows: —
"The director, supervisor, a warden, deputy or state police officer,
may search any boat, car, box, locker, crate or package, and any building,
where he has reason to believe any game or fish unlawfully taken or held
may be found, and may seize any game or fish so taken or held, which
shall be disposed of in such manner as the director deems for the best in-
terests of the commonwealth; provided, that this section shall not au-
thorize entering a dwelling house, or apply to game or fish passing through
this commonwealth under authority of the laws of the United States."
I assume, of course, that your question relates to search in coastal waters
which are within the jurisdiction of the Commonwealth, and does not
relate to fish passing through the Commonwealth under authority of the
United States. See Commonwealth v. Peters, 12 Met. 387; Commonwealth
V. Manchester, 152 Mass. 230; Commonwealth v. Breakwater Co., 214
Mass. 10.
The right to arrest without a warrant any person found violating any
of the fish or game laws is given by G. L., c. 130, § 5, as amended, in the
following words : —
"The director, supervisor, wardens, deputies, state pohce and all
officers qualified to serve criminal process may arrest without a warrant
any person found violating any of the fish or game laws, except that
persons engaged in the business of regularly dealing in the buying and
selling of game as an article of commerce shall not be so arrested for having
in possession or selling game at their usual place of business."
G. L., c. 130, § 4, as amended, gives to the wardens of the Division of
Fisheries and Game the power, referred to in G. L., c. 130, § 5, as amended,
and G. L., c. 91, § 58, of serving criminal process, in the following lan-
guage : —
"The director, supervisor, wardens and deputies shall have and exer-
cise throughout the commonwealth, for the enforcement of the laws re-
lating to fish, birds, mammals, game and dogs, all the powers of con-
stables, except the service of civil process, and of pohce officers."
Apparently, additional authority for arrest might, as regards rivers,
harbors, bays or sounds, if necessary, be found under G. L., c. 91, § 58,
which reads: —
"Any officer quaUfied to serve criminal process may, within his juris-
diction, arrest without a warrant any person found in the act of com-
P.D. 12. 47
mitting a misdemeanor in or upon any of the rivers, harbors, bays or
sounds within the commonwealth."
Presumably, a warden would, in the ordinary case, desire to board a
boat in the first instance for purposes of search under the power con-
ferred by said section 6; and, being on the boat, he might then, under said
section 5 or under G. L., c. 91, § 58, make an arrest of any person he
found violating the law. But, on any view, I see no reason why a warden
may not arrest a person found violating the fish or game laws on a boat as
well as anywhere else. I should suppose that the laws relative to fish
could hardly be effectively enforced otherwise.
Yours very truly,
Joseph E. Warner, Attorney General.
Civil Service — City Employees — Examinations.
The Commissioner of Civil Service has no power to authorize the ap-
pointment of city employees not under civil service to positions
under civil service, subject to non-competitive examination, when
there are persons upon a list of suitable eligibles for such positions
who have taken a competitive examination.
Jan. 15, 1930.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir: — You request my opinion as to whether you may author-
ize the appointment of certain city employees, who are not now under
civil service, to positions under civil service, subject to non-competitive
examination, notwithstanding the fact that you have an eligible list of
applicants for such positions estabhshed after competitive examination.
G. L., c. 31, § 15, reads as follows: —
"No person shall be appointed to any position in the classified civil
service except upon certification by the commissioner from an eligible list
in accordance with the rules of the board; but if there is no suitable
eligible list, or if the commissioner is unable to comply with a requisition
in accordance with the rules of the board, the commissioner, subject to
section twenty-five, may authorize a provisional appointment or may au-
thorize the appointing officer or board to select a suitable person who
shall be subjected to a non-competitive examination, such provisional
or non-competitive appointment to be subject to the rules of the board.
Within five days after the certification of persons for appointment or em-
ployment the commissioner shall make a record of the persons so certi-
fied. If the appointing officer rejects all the persons certified he shall so
notify the commissioner."
The statute expressly provides that all appointments must be made
from an eligible hst, where there is a suitable one. You state: "There is
a long list of eligibles to fill each of these positions, established after com-
petitive examination." I assume that you find no reason for holding
that such list is not suitable.
I must therefore advise you that you have no power to authorize the
appointments in question.
Yours very truly,
Joseph E. Warner, Attorney General.
48 • P.D. 12.
Department of Public Safety — Storage of Film — License.
A license and permit are required under the provisions of G. L., c. 148,
§ 14, for the storage of nitro cellulose X-ray film by the trustees of a
county hospital.
Jan. 28, 1930.
Mr. John W. Reth, State Fire Marshal.
Dear Sir: — You request my opinion (1) as to whether the trustees
of a county hospital come within the scope of section 3 of the regulations
of the Department of Public Safety governing the storage and use of nitro
cellulose X-ray film; and (2) whether the granting of licenses and permits
to store such film is governed by section 14 of G. L., c. 148, as amended.
Said section 3 of the regulations reads as follows: —
"No person shall keep, store or sell any nitro cellulose X-ray film in
any city or town outside the Metropolitan District in this Common-
wealth without a license from the board of aldermen of a city or the select-
men of a town and a permit from the head of the fire department."
I answer your first question in the affirmative. I see no reason for
doubting that the phrase "no person," as used in said regulations, in-
cludes the trustees of a county hospital.
As to your second question, section 14 of G. L., c. 148, provides that
no building shall be used for the keeping or storage of any of the articles
named in section 10 without a license and permit obtained as therein
provided. Said section 10 provides that the Department of Public Safety
may make rules and regulations for the storage, use or other disposition of
explosives or inflammable fluids and compounds; and may prescribe the
materials and construction of buildings to be used therefor. It appears,
therefore, that apart from the requirements of section 3 of the regulations,
the storage of X-ray film is prohibited by the statute unless a license and
permit be obtained in accordance with the statutory requirements. Sec-
tion 3 of the regulations seems merely confirmatory of the statute.
I am therefore of the opinion that a license and permit are required
under the provisions of said section 14 of G. L., c. 148; and that the
license and permit referred to in section 3 of the regulations are a license
and permit as provided for in said section 14 of the statute.
It is to be further noted that a license and permit to store X-ray film,
when obtained under section 14 of the statute, are subject to the various
restrictions contained in the regulations of the Department. A recital to
that effect might well be inserted in the license and permit.
Yours very truly,
Joseph E. Warner, Attorney General.
Department of Public Works — Cape Cod Canal — Telephone Cables.
The Department of Public Works has authority to grant licenses for
telephone cables to be laid in the Cape Cod Canal which do not
interfere with the exercise of the powers of the Federal government in
such canal.
Jan. 28, 1930.
Hon. Frank E. Lyman, Commissioner of Public Works.
Dear Sir: — You have asked my opinion in the following communica-
tion : —
P.D. 12. 49
''The Department of Public Works has received a petition from the
New England Telephone and Telegraph Company of Massachusetts for
license to lay and maintain a submarine cable in and across the Cape Cod
Canal in the town of Bourne. In this connection the question of the
jurisdiction of this Board over the tidewaters of the canal, has been raised,
particularly in view of the acquisition of this waterway by the Federal
government.
Licenses for cables and other structures in the Cape Cod Canal have
been issued by this Department and by its predecessors in authority, but
none have been granted since the canal became the property of the United
States. The Commissioners will much appreciate the receipt of an opin-
ion from you regarding the matter of jurisdiction."
In the first instance, it would appear that general authority to license
and prescribe the terms for construction of telephone cables in tidewater
below the high-water marks on each side of the Cape Cod Canal was
vested in your Department by the provisions of G. L., c. 91, § 14, as
amended by St. 1927, c. 106, and under the amendments to G. L., c. 16,
made by St. 1927, c. 297, with relation to the organization of your
Department.
The acquisition of the Cape Cod Canal by the Federal government
changes to some extent the precise manner in which your authority in the
aforesaid matters may be exercised.
The sale of the Cape Cod Canal to the United States was authorized
by the United States River and Harbor Act, section 2, approved January
21, 1927. Thereafter, as I am advised, the Federal government acquired
by purchase the property of the Cape Cod Canal Company and the land
which is covered by the waters of the canal.
It does not appear that the purpose of such purchase is within those
named in G. L., c. 1, § 7, as to which jurisdiction is ceded to the United
States by the terms of said G. L., c. 1, § 7, nor does it appear that the
General Court has in any other manner ceded jurisdiction over the lands
purchased.
Nevertheless, it has been held that the United States may by purchase
acquire title to lands within a State without the consent of the State.
When so acquired, however, the jurisdiction of the United States does not
oust that of the State, which still remains complete and perfect. Yet,
while the United States holds such lands, they are exempt from State
control when such State control would destroy or impair the effective
use of such lands for the use of the general government for which they
have been acquired. As was said by the Supreme Court of the United
States in Fort Leavenworth R.R. Co. v. Lowe, 114 U. S. 525, 539, with
relation to Federal lands acquired without the specific consent of the
State wherein they lay: —
"Their exemption from State control is essential to the independence
and sovereign authority of the United States within the sphere of their
delegated powers. But, when not used as such instrumentalities, the
legislative power of the State over the places acquired will be as full and
complete as over any other places within her limits."
See also VII Op. Atty. Gen. 230; Newcomb v. Rock-port, 183 Mass. 74.
I am advised that the lands and waters forming the Cape Cod Canal
are at the present time being used by the Federal government as instru-
mentalities of its sovereign authority. If it be a fact that the laying of
50 P.D. 12.
cables in or under the canal is an act which has a tendency to interfere with
the exercise of such authority by the United States, then your Depart-
ment has no authority to facihtate such interference by granting a license
for such act.
The Attorney General does not pass upon questions of fact. It would
appear to be a pure question of fact whether or not the laying of a cable
in the canal would interfere with the operations of the Federal government
therein when dredging or otherwise working in or utilizing the canal.
That is a question of fact which must be resolved in the negative before
your Department should attempt to grant such a license as is asked for or
to proceed in the matter, and it is a question for your Department to
determine in the first instance.
I make this suggestion, which your Department may find helpful in
dealing with petitions such as the one referred to in your communication,
namely, that your Department should require the production by the
petitioner of a certificate from the United States engineers or other au-
thorities in direct charge of the management of the canal to the effect
that the license requested by the petitioner would not, in their judgment,
tend to interfere with the proper performance of the duties of the United
States in operating and maintaining said canal.
Yours very truly,
Joseph E. Warner, Attorney General.
Medical Examiner — Authority — Removal of a Dead Body.
A medical examiner has no authority to order the removal of a dead body
from one town to another prior to his issuance of a certificate as to
the cause of death.
Feb. 8, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You have requested my opinion upon the following ques-
tion of law : —
"Has a medical examiner, under the provisions of G. L., c. 38, § 6, which
provides that 'he shall forthwith go to the place where the body lies and
take charge of the same,' authority to order the removal of a body from
the place where the body lies to another town within his county, without
the permit required by G. L., c. 114, § 45?"
G. L., c. 38, § 6, reads as follows: —
"Medical examiners shall make examination upon the view of the dead
bodies of only such persons as are supposed to have died by violence. If
a medical examiner has notice that tihere is within his county the body of
such a person, he shall forthwith go to the place where the body hes and
take charge of the same; and if, on view thereof and personal inquiry into
the cause and manner of death, he considers a further examination neces-
saiy, he shall upon written authorization of the district attorney, mayor
or selectmen of the district, city or town where the body lies, make an
autopsy in the presence of two or more discreet persons, whose attendance
he may compel by subpcL'na. Before making such autopsy he shall call
the attention of the witnesses to the appearance and position of the body.
He shall then and there carefully record every fact and circumstance
tending to show the condition of the body and the cause and manner of
death, with the names and addresses of said witnesses, which record he
P.D. 12. 51
shall subscribe. If a medical examiner or an associate examiner con-
siders it necessary to have a physician present as a witness at an autopsy,
such physician shall receive a fee of five dollars. Other witnesses, except
officers named in section fifty of chapter two hundred and sixty-two, shall
be allowed two dollars each. A clerk may be employed to reduce to
writing the results of a medical examination or autopsy, and shall re-
ceive two dollars a day.
The medical examiner may, if he considers it necessary, employ a
chemist to aid in the examination of the body or of substances supposed
to have caused or contributed to the death, and he shall receive such com-
pensation as the examiner certifies to be just and reasonable."
From the terms of this statute no specific authorit}' is given to the
medical examiner to remove a dead bod}^ from the town where it lies.
The phrase "he shall forthwith go to the place where the body lies and
take charge of the same" cannot of itself be construed to give him such au-
thority. Nor is he given such authority by any other statute of which I
am cognizant.
Moreover, from a consideration of other provisions of the instant
statute and those deahng with the same topic which have previously
been enacted, it would appear that the intention of the Legislature was
to provide that a dead body should not be removed by the medical ex-
aminer from the town where it lies. The general subject matter of the
instant statute was first enacted by St. 1877, c. 200, entitled "An Act to
abolish the office of coroner and to provide for medical examinations and
inquests in case of death by violence." The provisions of this early statute
in regard to the duties of medical examiners upon the view, as contained
in section 8 thereof, are embodied in G. L., c. 38, § 6, and the statute con-
tained nothing tending to show a legislative intent to authorize the re-
moval of a dead body from the town where it lay. In fact, the provisions
of said G. L., c. 38, § 6, that "and if, on view thereof and personal inquiry
into the cause and manner of death, he considers a further examination
necessary, he shall, upon written authorization of the district attorney,
mayor or selectmen of the district, city or town where the body lies,
make an autopsy," seem to indicate a general intent that the body should
not be removed from the place where it lies, nor did the provision of G. S.,
c. 175, which regulated the earlier practice under coroners, whose func-
tions were transferred to the medical examiners in 1877, contain provi-
sions authorizing the removal of a dead body from the town where it lay.
Indeed, sections 2 and 3 of said chapter 175, providing that the warrant
for the coroners' jury should summon the jurors to appear at a designated
town, and that the constable serving the same should return the sum-
mons "to the place where the dead body is," indicate in their entire con-
text a general intent that there should be no grant of authority to remove
the body from one town to another, in the same manner as G. L., c. 38,
§6.
Subsequent to the passage of said St. 1877, c. 200, relative to the duties
of the then newly created medical examiners, the Legislature passed St.
1878, c. 174, entitled "An Act to provide for the more accurate registra-
tion of vital statistics" (now embodied in G. L., c. 114, § 45, as amended by
St. 1927, c. 48), which provides as follows: —
"No human body shall be buried, or removed from any city or town,
until a proper certificate has been given by the clerk or local registrar of
52 P.D. 12.
statistics to the undertaker or sexton, or person performing the burial,
or removing the body. This certificate shall state that the facts required
by chapter twenty-one of the General Statutes have been returned and
recorded; and no clerk or local registrar shall give such- certificate or
burial permit until the certificate of the cause of death has been obtained
from the physician, if any, in attendance at the last sickness of the de-
ceased, and placed in the hands of said clerk or local registrar: ... In
case of death by violence, the medical examiner attending shall furnish
the requisite medical certificate. Any person violating the provisions
of this section shall be punished by a fine not exceeding twenty-five
dollars."
The main purpose of this statute, namely, the keeping of accurate vital
statistics, was made effective by the provision contained therein that no
certificate to remove a body from a city or town, upon which alone such
removal could be made, might be issued by the city or town authorities
until a certificate of the cause of the death had been filed with them; and
in case of death by violence this certificate was to be furnished by the
medical examiner. The furnishing of the certificate of the cause of death
by the medical examiner in cases of death by violence was thus made a
prerequisite to the issuing of a certificate of removal or the actual removal
of a dead body.
The terms of the instant statute, G. L., c. 114, § 45, as amended by St.
1927, c. 48, which I forbear to quote at length, embody the general scheme
relative to vital statistics set forth in said St. 1878, c. 174, and contain
nothing which increases the authority of the medical examiner in relation
to the removal of dead bodies from one city or town to another beyond
what it was under the statute of 1878.
Very truly yours,
Joseph E. Warner, Attorney General.
Constitutional Law — Trust Funds — Legislative Powers.
The Legislature cannot usurp the powers of the judiciary over funds
held by trustees for charitable purposes.
Feb. 18, 1930.
A. B. Casson, Esq., Chairman, House Committee on Bills in the Third
Reading.
Dear Sir: — You ask my opinion "as to whether or not House Bill
No. 76, entitled 'An Act ratifying certain acts of the Trustees of the Eames
Ministerial Fund in Holliston and changing the name of said corporation
to Endowment Trustees of the First Congregational Church of Hollis-
ton,' would, if enacted into law, with the amendments made by the House
of Representatives, be constitutional."
House Bill No. 76, as amended by the House of Representatives, pro-
vides : —
"Section 1. The name of the Trustees of the Eames Ministerial Fund
in Holliston, incorporated by an act approved February twenty-fourth,
eighteen hundred and twenty-nine and entitled 'An Act to incorporate
the trustees of the Eames Ministerial Fund in Holliston,' is hereby changed
to the Endowment Trustees of the First Congregational Church of Hollis-
ton.
P.D. 12. 53
Section 2. Said trustees shall be elected by the members of the First
Congregational Church of Holliston, and at the first election thereof under
the provisions of this act, one shall be elected for one year, one for two
years, one for three years, one for four years and one for five years, and
thereafter, as the term of any member expires, his successor shall be
elected for the term of five years. Any such trustee may be removed from
office only upon vote of the members of said church and any vacancy exist-
ing among the number of said trustees shall be filled for the unexpired
term by said members. The term of office of said trustees now in office
shall terminate upon the election of trustees under the provisions of this
act.
Section 3. Said trustees may, in addition to the powers and duties
conferred and imposed upon them by the provisions of the act mentioned
in section one of this act, receive, hold and invest all funds and property
which have been or shall be conveyed, bequeathed or devised to the trus-
tees of the Eames Ministerial Fund in Holliston, the Endowment Trustees
of the First Congregational Church of Holliston or to the First Congre-
gational Church of Holhston in accordance with the terms of such gift,
bequest or devise.
Section 4. All acts of said trustees of the Eames Ministerial Fund in
Holliston in receiving and administering gifts of Susan V. Littlehale and
Thomas E. Andrews, in so far as they may have been in excess of authority,
and the election of all persons heretofore acting, or purporting to act, as
said trustees, are hereby ratified and confirmed."
The Trustees of the Eames Ministerial Fund in Holliston was incorpo-
rated by St. 1828, c. 74, approved February 24, 1829, and was empowered
to "receive, secure, invest and hold, all monies or other property, or estate,
given and bequeathed to the Town of Holliston by Aaron Eames, late of
said Holliston, deceased, in and by his last will and testament, the same
having been given and bequeathed as above mentioned, upon the special
trust and confidence, that the principal thereof should be put on interest,
and safely secured as a permanent fund for the support of the Gospel, and
the interest and income of the same faithfully applied to the maintenance
of a Minister in said town of Holliston." Said corporation was given full
power and authority "to make and ordain all necessary regulations and
by-laws for their own government, and the security and management of '
said fund," consistent with law, such regulations and by-laws to be sub-
ject to approval by the town of Holliston at a duly constituted regular or
special town meeting.
Authority was also given to the town of Holliston to remove from office
any trustee who because of age or other incapacity was considered in-
competent to discharge the duties of that trust, and to fill all vacancies in
said board of trustees. The Legislature, by section 5 of the act, reserved
the right to alter, annul or repeal, at its pleasure, and at any time, powers
given in said act.
Section 1 of House Bill No. 76 provides for the change of the name of
the corporation from the "Trustees of the Eames Ministerial Fund in
Holliston" to the "Endowment Trustees of the First Congregational
Church of Holliston"; and section 2 of said bill provides for a change in
the method of the election of trustees. Under the original act no definite
term during which said trustees were to serve as such was established. A
trustee, once chosen, could serve during the rest of his life, unless removed
by the town meeting of Holliston, because, by reason of his age or other
54 P.D. 12.
incapacity, he was deemed incompetent to perform and discharge the
duties of said trust.
All vacancies in said board of trustees were required to be filled by the
town meeting of said town. Said House Bill No. 76 fixes the terms of office
of the trustees, and provides for their election by the members of the First
Congregational Church of said town. The power to enact such legislation
is within the rights reserved by the Legislature under St. 1828, c. 74, § 5,
and within the power of the Legislature "to control its cities" and towns
"in their public affairs and in their administration of public charities by
controlling the selection of the officers or agents to whom these are to be
entrusted." Ware v. Fitchburg, 200 Mass. 61, 67, 72.
Section 3 of said House Bill No. 76 is apparently intended to accomplish
three purposes:
1. To enlarge the powers of the corporation so as to authorize it to
receive, hold, invest and manage as trustee property or funds other than
those which it was empowered to receive, hold, invest and manage by the
original act of incorporation.
2. To effect by legislative act a transfer to said corporation of the legal
title of the property and funds now held by it ultra vires.
3. To effect by legislative act a transfer to said corporation of the legal
title of the funds or property now held by other parties, namely, the En-
dowment Trustees of the First Congregational Church of Holliston and
the First Congregational Church of Holliston.
So much of the provisions of this section as are intended to carry out
the first purpose would be constitutional. Fellows v. Miner, 119 Mass.
541. That portion of said section by which it is designed to carry out the
second and third purposes would be unconstitutional, because its effect
will be to transfer the legal title of such funds or property given, be-
queathed or devised to said corporation subsequent to the passage of
St. 1828, c. 74, and also to transfer the legal title of the funds or property
held by the associations or corporations mentioned therein. The Legis-
lature may enlarge the capacity of the corporation so as to permit it to
receive, hold and invest funds which said corporation now holds ultra
vires, but legislative authority cannot, however, in and of itself, effect a
valid transfer of the legal title of said funds or property. In my opinion,
a judicial decree is required effectually to transfer to said corporation the
legal title of such funds or property now held by it ultra vires; but no such
transfer may be decreed by the court until the General Court has en-
larged the powers of said corporation so as to enable it to hold such prop-
erty. Fellows V. Miner, supra. The Legislature cannot by legislative
fiat transfer the legal title to property or funds held by a charitable cor-
poration or trustees of a public charity to another charitable corporation
or to other trustees. This is purely a judicial function, to be performed
by the courts in appropriate proceedings. Canj v. Bliss, 151 Mass. 364.
In my opinion, if section 3 of said House Bill No. 76 were enacted into
law in its present form, it would be unconstitutional.
Section 4 of said House Bill No. 76 provides for: —
1. The ratification and confirmation of the acts of the trustees in re-
spect to receiving and administering certain gifts and bequests in so far
as such acts may be in excess of authority.
2. The ratification and confirmation of the election of all persons who
have been acting or purporting to act as trustees.
So much of the provisions of this section as effects the first purpose
P.D. 12. 55
outlined above is unconstitutional. Certain rights may have accrued
to innocent third persons because of the acts of the trustees. Whether or
not such rights have accrued is a subject matter for judicial determination.
The General Court cannot by general ratifying provisions divest the courts
of their power to make this determination. Mass. Const., p.t. 1st, art.
XXX.
So much of the provisions of said section 4 as would ratify and confirm
the election of the trustees of said corporation would be constitutional.
Ware v. Fitchhurg, 200 Mass. 61.
In my opinion, if said section 4 were enacted into law in its present
form, it would be unconstitutional.
Yours very truly,
Joseph E. Warner, Attorney General.
Municipalities — Constables — Shellfish.
G. L., c. 130, § 152, does not authorize the appointment of constables for
the specific purpose of enforcing the laws relative to shellfish.
Feb. 20, 1930.
Hon. William A. L. Bazeley, Commissioner of Conservation.
Dear Sir: — You ask my opinion as to whether G. L., c. 130, § 152,
in providing for the enforcement of the shellfish laws, contemplates the
appointment of additional constables, or merely the designation of con-
stables, already duly elected or appointed, to enforce said laws.
G. L., c. 130, § 152, provides: —
. "The mayor of a city or the selectmen of a town may designate one or
more constables for the detection and prosecution of any violation of the
laws of the commonwealth relative to shellfisheries. Such constables may
arrest without a warrant any person found violating such laws, and detain
him until a warrant for arrest for such violation may be applied for; and
may seize any boat or vessel used in such violation, and her tackle, apparel,
furniture and implements, which shall be forfeited."
The foregoing statute does not authorize the appointment of constables
by the mayor of a city or the selectmen of a town for the specific purpose
of detecting and prosecuting violations of the laws relating to shellfisheries.
Provision is made elsewhere in the General Laws for the election or ap-
pointment of constables. See G. L., c. 41, §§ 1 and 91A. The duties of
constables, generally, are defined in G. L., c. 41, §§ 92-95. The words
"may designate one or more constables," as used in said statute, are to
be construed to mean to select one or more constables who have been
regularly elected or appointed to that office.
In my opinion, G. L., c. 130, § 152, does not contemplate the appoint-
ment of additional constables, but, rather, provides that the mayor or
selectmen shall select constables, who have been regularly appointed or
elected, to enforce the shellfish laws.
Yours very truly,
Joseph E. Warner, Attorney General.
56 P.D. 12.
Settlement — Loss — Naval Reserve.
One enrolled in the United States Naval Reserve may lose his settlement,
for purposes of military aid, after a period of five years' absence
from the State following his discharge from the service.
March 3, 1930.
Mr. Richard R. Flynx, Commissioner of State Aid and Pensions.
Dear Sir : — You request my opinion relative to the settlement of a
man formerly in the United States Naval Reserve, the question being as
follows : —
"Did this man lose his legal settlement in Massachusetts by being over
five years absent from the Commonwealth, from February 25, 1919, when
released from active service, to April 26, 1926; or did actual absence from
the State begin on September 30, 1921, when he was discharged from the
United States Naval Reserve Force?"
Your letter sets forth the following facts: —
"A Massachusetts resident enrolled in the United States Naval Re-
serve, December 13, 1917, and reported for active duty February 8, 1918;
he was relieved from active duty February 25, 1919, and honorably discharged
from the United States Naval Reserve Force on September 30, 1921.
Between February 25, 1919, and September 10, 1921, he had no actual
service in the United States Navy. He was recalled for active duty on
September 10, 1921, as a naval reservist, relieved from active duty Septem-
ber 24, 1921, and honorably discharged September 30, 1921.
When this man was relieved from active duty February 25, 1919, he
went to work as a civilian employee at the United States Naval Hospital,
New London, Connecticut, as an electrical machinist, where he stayed
until December, 1919, and then took up a business in New London, Con-
necticut, and continued in business until he came to Massachusetts, April
26, 1926.
At the time of this man's acceptance for service he was a resident of
Revere, Massachusetts, and would thereby, under the provisions of G. L.,
c. 116, gain a military settlement in that city to entitle him to considera-
tion under the military aid and soldiers' relief laws, provided his legal
settlement has not been defeated by five years' absence from Massachu-
setts after his discharge from the service."
I assume from these statements that the question of settlement arises
in determining whether this man is to be considered as coming within
the first or the third class of recipients of military aid, as defined in G. L.,
c. 115, § 10, as amended, which reads as follows: —
"The recipient of military aid shall belong to and have the qualifica-
tions of one of the four following classes:
First class. Each person of the first class shall have his settlement in the
town aiding him; shall have served as a soldier, sailor or nurse in the
manner and under the limitations prescribed in the first class of section
six; shall have been honorably discharged or released from active duty in
such United States service and from all appointments and enlistments
therein; . . .
P.D. 12. 57
Third class, Each person of the third class shall have all the quahfica-
tions of persons of the first class except settlement, and shall have been a
continuous resident of the commonwealth during the three years last
preceding his receipt of military aid and shall be a resident of the town
granting the aid."
I draw the further assumption, from the statements contained in your
letter, that this man acquired a settlement in Revere by his enrollment
in the Naval Reserve on December 13, 1917, and his later service.
G. L., c. 116, § 1, cl. 5, as amended, provides: —
"Legal settlements may be acquired in any town in the following manner
and not otherwise:
Fifth, A person who enlisted and was mustered into the mihtary or
naval service of the United States, as a part of the quota of a town in the
commonwealth under any call of the president of the United States during
the war of the rebellion or any war between the United States and any
foreign power, or who was assigned as a part of the quota thereof after
having enlisted and been mustered into said service, and his wife or widow
and minor children, shall be deemed thereby to have acquired a settlement
in such town ; and any person who would otherwise be entitled to a settle-
ment under this clause, but who was not a part of the quota of any town,
shall, if he served as a part of the quota of the commonwealth, be deemed
to have acquired a settlement, for himself, his wife or widow and minor
children, in the place where he actually resided at the time of his enhst-
ment. Any person who was inducted into the mihtary or naval forces
of the United States under the federal selective service act, or who en-
listed in said forces in time of war between the United States and any
foreign power, whether he served as a part of the quota of the common-
wealth or not, or who enlisted and served in said forces during the PhiUp-
pine insurrection, and his wife or widow and minor children shall be
deemed to have acquired a settlement in the place where he actually re-
sided in this commonwealth at the time of his induction or enlistment.
He would, therefore, with regard to mihtary aid, come within the first
class as set forth in G. L., c. 115, § 10, as amended, unless he had lost his
settlement because of the provisions of G. L., c. 116, § 5, as amended.
Said section 5 provides as follows : —
"... The settlement existing on August twelfth, nineteen hundred
and sixteen, or any settlement subsequently acquired, of a person whose
service in or with the army, navy or marine corps of the United States
qualifies him to receive aid or relief under the provisions of chapter one
hundred and fifteen, and the settlement of his wife, widow until she re-
marries, father or mother, qualified by his service to receive relief under
said chapter one hundred and fifteen, shall not be defeated, except by
failure to reside in the commonwealth for five consecutive years or by the
acquisition of a new settlement."
The determination of the question as to when the absence from the
State began, for the purpose of losing a settlement, depends upon the
status of the naval reservist following his release from active duty, and
whether he remained in New London, Connecticut, with the settled in-
58 P.D. 12.
tention of choosing his place of residence with the object of making it his
home. Whately v. Hatfield, 196 Mass. 393.
The status of this man immediately following his release from active
duty was that of a civilian, except that he could be recalled into active
duty in time of war or national emergency. United States v. MacDonald,
265 Fed. -695; United States v. Warden or Keeper of Naval Prison, 265
Fed. 787. He had the right to take up such civihan em.ployment as he
chose and to make his home where he wished. This he could have done
then just as freely as before his entry into the Naval Reserve. In the
language used in United States v. MacDonald, supra, "so far as he was
concerned, the time of war was ended," subject, however, to the possi-
bility that he might be recalled in case of war or a national emergency.
I would advise, therefore, that this man lost his legal settlement, as
the five-year period began to run immediately following his release from
active duty in the Naval Reserve on February 25, 1919.
Very truly yours,
Joseph E. Warner, Attorney General.
Counties — State Officers and Employees — Traveling Expenses.
G. L., c. 6, § 10, relative to traveling expenses of officers or employees
of the Commonwealth, is not applicable to such expenses of an officer
of the State Police traveling on county business.
March 6, 1930.
Hon. Charles P. Howard, Chairman, Commission on Administration
and Finance.
Dear Sir: — You request my opinion as to whether an officer of the
State Police, assigned at the request of a district attorney to travel out-
side the State on county business and at county expense, must previously
obtain authority from the Governor, imder the provisions of G. L., c. 6,
§ 10, which reads as follows: —
"The governor may appoint state officers as delegates to represent
the commonwealth at such conventions as may be held in any part of the
United States for the purpose of considering questions of charity, reform,
statistics, insurance and other matters affecting the welfare of the people.
Their necessary expenses may be paid from such appropriations as the
general court may make for the travehng and contingent expenses of
such officers. No officer or employee of the commonwealth shall travel
outside the commonwealth at public expense unless he has previously
been authorized by the governor to leave the commonwealth, and in ap-
plying for such authorization the officer or emploj^ee shall specify the places
to be visited and the probable duration of his absence."
The last sentence in the above statute was added by St. 1920, c. 253,
by the passage of a bill presented by the Supervisor of Administration.
This bill, as stated in the Supervisor's report, was presented "in the in-
terests of a stricter accounting of expenditures for travel outside of the
Commonwealth on the part of State officials and employees, and in order
to prevent any abuse of special privileges that may be granted to them."
I am of the opinion that the term "pubhc expense" should be construed
as applying solely to disbursements from the treasury of the Common-
P.D. 12. 59
wealth, and that the statute is inapphcable to the case of an officer en-
gaged on county work at county expense.
The words "public expense" and the words "officer or employee of the
commonwealth" are used in close juxtaposition, and seem naturally to
refer to an expense of the Commonwealth. Moreover, this construction
seems in accord with the intent of the act as expressed in the Supervisor's
report. Careful provision for the supervision of such county expenses
as you refer to had been made prior to the enactment of St. 1920, c. 253,
and is to be found in G. L., c. 12, § 24, which provides for payment by a
county, upon certification of the district attorney and upon approval of
the auditor of Suffolk County, or of the county commissioners or a justice
of the Superior Court in other counties.
Yours very truly,
Joseph E. Warner, Attorney General.
County Commissioners — Hospital District — Tuberculosis.
The county commissioners of Middlesex County should make payments
for a tubercular patient in a certain hospital under stated circum-
stances.
March 12, 1930.
Dr. George H. Bigelow, Commissioner of Public Health.
Dear Sir: — You ask my opinion as to whether the county commis-
sioners of Middlesex County are responsible, under the provisions of St.
1928, c. 385, for hospital care and support of a person suffering from tu-
berculosis and residing in a town within a hospital district, as defined in
G. L., c. Ill, § 78, who is admitted to a hospital with which arrangements
have been made by the Department of Public Health, and whose admis-
sion was made upon application or with the approval of the board of
health of the town where such person resides, as required by said St. 1928,
c. 385, "irrespective of whether or not said person has a settlement within
the hospital district"; and you submit the following facts: —
" A woman was admitted on June 22nd to the Burbank Hospital in Fitch-
burg from the town of Shirley on application signed by the board of health
of that town, as required by the chapter referred to (St. 1928, c. 385).
Responsibility was recognized by the county commissioners and the sum
of S324.66 was paid to the hospital for her care. Under date of November
29th the chairman of the county commissioners wrote the Burbank Hos-
pital that there was no settlement within the Commonwealth, and that
they were no longer liable and were forwarding to the Commonwealth
the bills for money due and for money already paid."
The statutory provisions pertinent to your inquiry are G. L., c. Ill,
§§ 78 and 79, as amended by St. 1924, c. 501, § 1, and c. 500, § 1, re-
spectively, and St. 1928, c. 385.
G. L., c. Ill, § 78, as amended by St. 1924, c. 501, § 1, requires the
county commissioners in each county of the Commonwealth to provide
"adequate hospital care for all persons residing in towns having less than
one hundred thousand population as determined by the last national
census, within the boundaries of their respective counties and suffering
from tuberculosis, who need such hospital care and for whom hospital
provision does not already exist."
60 P.D. 12.
G. L., c. Ill, § 79, as amended by St. 1924, c. 500, § 1, provides, in
part, that a "contract, entered into before September first, nineteen
hundred and twent3^-five, and approved by the department after a
petition made to it and a pubhc hearing thereon, between the county
commissioners of any two or more counties for the express purpose
of supplying within a reasonable time, as provided in the conditions of
approval of the department, and guaranteeing adequate hospital pro-
vision for tubercular patients coming under section seventy-eight, shall be
deemed satisfactory compliance with said section for such counties or
sections of counties as are designated in the contract," and provision is
made therein for the renewal of said contracts. Said section also pro-
vides: —
"The county commissioners of any county may in Hke manner and
subject to the foregoing provisions relative to renewal contract with the
department, for a term of not more than three years. . . . Any such con-
tract with the department shall be deemed satisfactory compliance with
section seventy-eight."
St. 1928, c. 385, provides: —
"Section 1. The department of public health may arrange for the
admission, care and treatment, ... at any institution within the com-
monwealth approved by the department, of persons sufTering from pul-
monary tuberculosis who are residents of any of the cities or towns
comprising the territory of the Worcester County or Middlesex County
tuberculosis hospital district . . . , and such arrangements shall be deemed
to be satisfactory compliance with the provisions of sections seventy-
eight to ninety, inclusive, of chapter one hundred and eleven of the Gen-
eral Laws requiring adequate hospital care for such persons.
Section 2. The provisions of sections eighty-eight and ninety of said
chapter one hundred and eleven shall apply to all persons admitted to any
institution under authority of section one, except that the application for
any such admission shall be made or approved by the board of health of
the city or town in which such person resides, and that the charge for the
support of any such person shall in the first instance be paid by the trus-
tees of the tuberculosis hospital district in which such city or town is
located. . . ."
Subsequent to the passage of St. 1924, c. 500, § 1, the county com-
missioners of Middlesex County entered into a contract with the De-
partment of Public Health, of which contract I have personal knowledge
and take official cognizance, pursuant to the authority of said St. 1924, c.
500, § 1, and which terminated by operation of law on December 1, 1928.
Early in 1928 it was seen that there could not be a compliance by the
county commissioners of Middlesex County with so much of the provisions
of G. L., c. Ill, §§ 78-90, inclusive, as relates to the maintenance of a
hospital, and St. 1928, c. 385, above cited, was passed to enable said county
commissioners to provide adequate hospital care and treatment for per-
sons suffering from tuberculosis and residing in said district, pending
legislative authority to obtain funds for the erection and equipment of a
tuberculosis hospital for said county of Middlesex.
Nowhere in G. L., c. 116, §§ 78-90, inclusive, and amendments thereto,
does it appear that the admission of a patient to a hospital maintained
by a tuberculosis district, or to a hospital or institution with which a con-
P.D. 12. 61
tract has been made by one county with another, or by a county with the
Department of PubHc Health, or to a hospital or institution with which
arrangements have been made by the Department of Public Health, is
conditioned upon a person having a legal settlement in the Common-
wealth. The only condition, other than that a person is suffering from
tuberculosis and is in need of hospital care, upon which admission to any
such hospital depends, is that such person reside in a town within a tu-
berculosis hospital district.
In my opinion, the words "reside" and ''residing," as used in the fore-
going statutes, mean "domicil." In Wilbraham v. Ludlow, 99 Mass. 587,
592, the court, in defining the term "domicil," stated: —
''Our own adjudged cases sufficiently establish the rule that one who is
residing in a place with the purpose of remaining there for an indefinite
period of time, and without retaining and keeping up any animus rever-
tendi, or intention to return, to the former home which he has abandoned,
will have his domicil in the place of his actual residence."
And in Winans v. Winans, 205 Mass. 388, 391, the court said: —
"In order to acquire a domicil both the fact and the intent must con-
cur. Actual residence and the intention to remain either permanently
or for an indefinite time without any fixed or certain purpose to return
to the former place of abode are required to constitute a change of domi-
cil. The length of the residence is immaterial provided the other elements
are present and found to exist. A day, or an hour, it has been said, will
suffice for the acquisition of a domicil."
A person can acquire a legal settlement only in the manner provided
by G. L., c. 116, § 1. The word "reside," as used in said G. L., c. 116,
§ 1, means domicil. Stoughton v. Cambridge, 165 Mass. 251; Palmer v.
Hampden, 182 Mass. 511; Whafely v. Hatfield, 196 Mass. 393. VII Op.
Atty. Gen., 341, 342. A person may have a domicil in a city or town and
at the same time have a legal settlement elsewhere, or he may have a
domicil in a city or town and have no known settlement in the Common-
wealth.
Under the provisions of St. 1928, c. 385, the legal settlement of a person
suffering from tuberculosis is not a factor to be considered before such
person can be admitted to an institution with which arrangements have
been made by the Department of Public Health, nor is it a factor to be
considered in determining the primary liability of the county commis-
sioners of Middlesex County to pay for the care and support of such
patient.
If the Legislature had intended that the admission of a person to such
a hospital or institution, or that the primary liability to pay for the care
and support of such person therein, was to be predicated upon his legal
settlement, it would have used appropriate language to express that
intent.
If a person residing in Middlesex County and suffering from tubercu-
losis has been admitted to a hospital or institution with which arrangements
have been made by the Department of Public Health, and the applica-
tion for his admission has been made or approved by the local board of
health, "the charge for the support of any such person shall in the first
instance be paid by the trustees of the hospital district (county com-
missioners) in which said city or town is located." St. 1928, c. 385, § 2.
02 P.D. 12.
This provision of the statute (St. 1928, c. 385, § 2) is precise and certain
in expression, and no reason appears why it should not be given its plain
and ordinary meaning. It means that the trustees of the tuberculosis
hospital district (county commissioners) shall be directly liable to said
hospital or institution for the care and support of such person.
In the instant case, it does not appear in the facts presented by you
that the patient resided in the town of Shirley when she was admitted
to the Burbank Hospital. The presumption arises, however, that she
did have a residence in said town at that time. She was admitted therein
upon the appKcation of the local board of health, and payments for her
care and support at said hospital were made by the county commissioners
of Middlesex County from the date of her entering said hospital to Octo-
ber 1, 1929. The refusal of the county commissioners to make further
payments was not based on the non-residence of the patient in Shirley,
but was based on the fact, if such is fact, that the patient had no known
settlement in this Commonwealth.
In my opinion, the reasons given by the county commissioners of
Middlesex County for their refusal to make further payments to the Bur-
bank Hospital for the care and support of said patient are not, as a matter
of law, sufficient, and the commissioners are not relieved of the obhgation
imposed by St. 1928, c. 385.
Yours very truly,
Joseph E. Warner, Attorney General.
Cream — Grades — Label.
Only a seller of cream under the designation of "Cream," without the
qualifying adjectives used in St. 1929, c. 267, § 2, is required to
state on the label the percentage of milk fat therein.
March 15, 1930.
Dr. Arthur W. Gh.b-eut, Co7nmissio7ier of Agriculture.
Dear Sir: — You request my opinion as to whether St. 1929, c. 267,
requires a seller of all grades of cream, as they are classified, to state on
the label the percentage of milk fat contained therein.
Portions of sections 1 and 2 of said statute pertinent to your inquiry
are as follows : —
"Section 1. Chapter ninety-four of the General Laws is hereby
amended by striking out section twelve and inserting in place thereof
the following: — Section 12. . . . The Massachusetts legal standard for
cream or ungraded cream shall be cream which upon analysis is shown
to contain not less than sixteen per cent of milk fat. The Massachusetts
legal standard for the grades to be known as light cream, medium cream,
heavy cream and extra heavy cream shall be cream which upon analysis
is shown to contain not less than sixteen, twenty-five, thirty-four and
thirty-eight per cent, respectively, of milk fat.
Section 2. Said chapter ninety-four is hereby further amended by
striking out section twenty-one and inserting in place thereof the follow-
ing:— Section 21. No person, . . . shall sell, expose for sale, or have
in his custody or possession with intent to sell, cream not bearing, upon
a label, ... a statement of one of the following designations conforming
to the legal standard for the particular grade or kind as set forth in sec-
P.D. 12. 63
tion twelve: 'Light Cream', 'Medium Cream', 'Heavy Cream', 'Extra
Heavy Cream', 'Ungraded Cream', or ^ Cream' together with the -percent-
age of milk fat contained therein which shall be not less than sixteen per
cent. . . ."
Because of the omission of a comma after the word "Cream" in sec-
tion 2, it is my opinion that the phrase which follows applies only where
the substance is sold under the label of "Cream," and that it is not neces-
sary for a dealer who uses on his labels one of the other designations to
specify also the percentage of milk fat contained. It was apparently
thought by the Legislature that the titles other than "Cream" were
sufficiently specific in themselves.
Very truly yours,
Joseph E. Warner, Attorney General.
Insurance — Service Contract — Funeral Insurance.
A contract to provide funerals for the contractee and his family, at a
designated cost, with a reduction for the first funeral, is a contract
of insurance.
March 19, 1930.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir: — You have asked my opinion as to the character of a
service contract, so called, issued by the Metropolitan Funeral Plan, In-
corporated, a copy of which you have set forth in a letter containing the
following i-equest : —
"The question occurs whether this contract is one of insurance or life
insurance within the statutory definition contained in G. L., c. 175, §§ 2
and 118.
I accordingly request that you kindly inform me whether in your
opinion this contract constitutes insurance within either of the aforesaid
sections."
In my opinion, the contract to which you have directed my attention
does constitute a contract of insurance within the meaning of both sec-
tions 2 and 118 of G. L., c. 175, as amended.
G. L., c. 175, § 2, reads as follows: —
"A contract of insurance is an agreement by which one party for a
consideration promises to pay money or its equivalent, or to do an act
valuable to the insured, upon the destruction, loss or injury of something
in which the other party has an interest."
The pertinent part of G. L., c. 175, § 118, as amended, reads as follows: —
"Definition of Life Company. All companies doing business in the
commonwealth under any charter, compact, agreement or statute of this
or any other state, involving the payment of money or other thing of
value to families or representatives of policy and certificate holders or
members, conditioned upon the continuance or cessation of human life
. . . shall be deemed to be life companies."
The principles applicable to a determination of the question which
you have raised relative to the instant contract were followed in an opinion
by former Attorney General Herbert Parker rendered to your depart-
G4 P.D. 12.
ment in connection with a contract similar in general character, though
differing slightl}- in details, to the one now before me. II Op. Atty. Gen.
480. The then Attorney General in said opinion held that a burial asso-
ciation having membei's who paid premiums, and to whom it agreed to
furnish funerals for themselves and members of their families at an esti-
mated cost, was a life insurance company within the meaning of R. L.,
c. 118, § 65, which was similar in its terms to those of said G. L., c. 175,
§ 118, as above set forth.
The corporation selling the contract now before me agrees, for a pay-
ment of fifty dollars, to furnish funerals for the purchaser and various
members of his family or dependents at a designated cost, and further
agrees to the reduction of the designated cost of the first funeral by the
amount of thirty dollars.
This contractual arrangement, whereby the contracting corporation
promises to do acts valuable to the individual contracting party and
those claiming under him, upon the loss of lives in which the individual
has a direct interest, for a consideration of fifty dollars, falls squarely
within the definition of a contract of insurance as set forth in said sec-
tion 2. The corporation doing the business incident to said contract, per-
formance of which on its part is conditioned upon the cessation of human
life, comes within the definition of a life company as set forth in said
section 118, as amended.
The intention shown by the instant contract appears to be to provide
insurance for the contracting individual and designated members of his
family, in consideration of a payment, against certain losses, to wit:
funeral expenses over and above the thirty dollars mentioned in the con-
tract in one instance, and over and above the agreed estimate in all in-
stances, consequent upon death. The contract does not purport to be one
for personal services; it is in many features analogous to a contract rela-
tive to hospital service, held to be a policy of insurance in an opinion of
former Attorney General Jay R. Benton (VII Op. Atty. Gen. 567).
Very truly yours,
Joseph E. Warner, Attorney General.
Taxes — Collector — Uncollected Taxes.
A municipal tax collector is not relieved of all hability for uncollected
taxes by the commitment of his lists to his successor in office.
March 21, 1930.
Hon. Henry F. Long, Commissioner of Corporations and Taxation.
Dear Sir: — You have asked my opinion on the following questions: —
1. If a collector who is paid by a fixed salary is not re-elected or re-
appointed to office and his lists covering the uncollected taxes are com-
mitted with the warrant of the assessors to his successor in office, is he
thereby relieved of all liability for such uncollected taxes?
2. If a collector of taxes of a city or town succeeds himself in office,
can the board of assessors make a legal recommitment to him, as his own
successor in office, of his uncollected taxes as shown by his lists on his
original commitment?
P.D. 12. 65
I.
G. L., c. 59, § 55, provides as follows: —
"The warrant shall specify the duties of the collector as prescribed by
law in the collection of taxes, the times when and the person to whom he
shall pay them, shall be substantially in the form heretofore used, and
need not be under seal."
A portion of the form of warrant now in use reads as follows : —
"You are hereby required to levy and collect . . . dollars which is the
whole amount assessed .... And you are to complete and make up an
account of the collection of the whole sum of . . . dollars, it being the
whole amount hereby committed to you, and transmit and pay over the
same in the manner provided by law to , Esq., Treasurer of
said town, or to his successor in office, on or before the day of
A.D. 19..."
G. L., c. 60, § 13, as amended by St. 1926, c. 65, § 2, provides as fol-
lows : —
"The collector shall, before the commitment to him of any taxes of
any year, give bond for the faithful performance of his duties in a form
approved by the commissioner and in such sum . . ."
The form of bonds now in use and approved by your Department pro-
vides that the collector "shall faithfully perform all the duties of said
office as required by law." The bond represents the agreement between
the city or town and the collector and his or her surety or sureties. It is
the basis upon which action is brought for the non-performance of the
duties imposed upon the collector by the provisions of law or any man-
date made in accordance with law, such as the directions contained in
the collector's warrant. Upon failure to perform any of those duties the
collector is responsible. "The bond of a collector is undoubtedly for
each year." (Sandwich v. Fish, 2 Gray, 298.) In Amherst Bank v. Root,
2 Met. 522, it was stated: —
"Where a bond is given for the faithful performance of the duties of an
office that is, by the law or usage by which it is created, limited to the
term of one year, such bond is available only as security against viola-
tions of duty happening within that year." See also Richardson School
Fund V. Dean, 130 Mass. 242.
In accordance with G. L., c. 60, § 17, as amended by St. 1923, c. 128,
§ 4, the duty of enforcing the collection within a definite time is placed
upon the collector of taxes. Said section 17, as amended, provides: —
"If any tax, betterment or special assessment remains unpaid fourteen
days after demand therefor, the collector, in the case of any tax, better-
ment or special assessment upon real estate, within one year from October
first in the year of assessment, and, in case of any other tax, within two
years from said October first, shall collect the tax, together with all in-
cidental charges and fees, in the manner provided by law."
He must, then, collect within this time and, in accordance with G. L.,
c. 60, § 2, turn over this money to the treasurer. His bond is the contract
guaranteeing that this will be done. The only excuse for not doing this is
the one recognized by G. L., c. 60, § 95. That section provides: —
GO P.D. 12.
"The collector shall be credited with all sums abated; with the amount
of taxes assessed upon any person committed to jail for non-payment of
his tax within one year from the receipt of the tax list by the collector,
and who has not paid his tax; with any sums which the town may see fit
to abate to him, due from persons committed after the expiration of a
year; with all sums withheld by the treasurer of a town under section
ninety-three; and with the amount of the taxes and charges where land
has been purchased or taken by the town for non-payment of taxes. When
a collector is credited with the amount of taxes assessed upon any person
committed to jail for the non-payment of his tax, who has not paid his
tax, said collector shall also be paid and credited with the fees and charges
which have become a part of said taxes and to which he or the officer
acting under his warrant is entitled."
If the tax collector fails to collect these taxes and turn over the money
to the treasurer in accordance with the warrant and these provisions of
the statute, except in so far as he is excused by section 95, his liability
and the liability on the bond are absolute, and there is no provision that
hability is to be relieved by the commitment of the uncollected balance to
his successor in office.
In Colerain v. Bell, 9 Met. 499, the principle is laid down that, where a
tax collector is removed from office and the uncollected balance is com-
mitted to his successor, he is relieved from liability only to the amount
of this uncollected balance which is later collected by his successor. This
principle appears to be recognized in Winthrop v. Soule, 175 Mass. 400.
Sound legal reasoning would seem to make this same principle applicable
regardless of whether the term of a collector expired because of his re-
moval or because of his failure of election or of appointment. Your first
question is accordingly answered in the negative.
II.
G. L., c. 60, § 97, as amended by St. 1923, c. 128, § 5, reads as follows: —
"Except as provided in section nine, if a collector ceases to hold the
office of collector for any reason other than because of the expiration of
the term of office of a collector who is not paid by a fixed salary and his
failure to be reappointed or reelected, all his accounts, records and papers,
except his warrant, which relate to the assessment and collection of taxes
in his town shall, forthwith after an audit thereof has been made by a
competent accountant, be deposited by him, or his executor or adminis-
trator, or any other person into whose possession they may come, with
the assessors of such town, who thereupon shall turn over his uncollected
tax lists to his successor; together with their warrant, which shall cover
the uncollected accounts of the original commitment as shown on said
lists and shall also turn over all his accounts, records and papers so de-
posited with them, except said lists, to the clerk of said town. If the
collector is his own successor, he shall complete the collection of the
taxes as a part of the duties of his new term of office and not as a part of
the duties of his former term of office."
For the purposes of your question the following words, which relate to
a collector who is not paid by a fixed salary, may be ehminated, —
"other than because of the expiration of the term of office of a collector
who is not paid by a fixed salary and his failure to be reappointed or re-
P.D. 12. 67
elected." This section specifically provides for the deposit by the collector
of all his books, etc., ''except his warrant," with the assessors, who shall
thereupon "turn over the uncollected tax lists to his successor, together
with their warrant." The warrant is the authority of the collector. Un-
der G. L., c. 60, § 9, the collector is required to deposit his warrant with
the clerk of the town at the end of three years. That section, as amended
by St. 1923, c. 128, § 1, provides: —
"When all the taxes which have been committed to a collector have
been collected or abated, or, in any event, at the end of three years from
the date of their commitment to him, he shall deposit with the clerk of
the town where he held such office all his accounts, records and papers,
including his warrant, which relate to the assessment and collection of
such taxes, if not required by section ninety-seven to deposit them sooner
with the assessors of such town."
There appears to be no provision for the deposit or return of his warrant
sooner than three years after the commitment, except in the case of a
completed collection or collection and abatement.
G. L., c. 60, § 15, provides as follows: —
"The collector shall, unless removed from office or unless his tax list
has been transferred to his successor, complete the collection of the taxes
committed to him, notwithstanding the expiration of his term of office."
The last sentence of G. L., c. 60, § 97, reads as follows: —
"If the collector is his own successor he shall complete the collection
of the taxes as a part of the duties of his new term of office and not as a
part of the duties of his former term of office."
Upon the completion of the term of office of a collector who succeeds
himself, he is already in possession of a warrant empowering him to col-
lect the taxes originally committed to him. The phraseology "complete
the collection of the taxes" means that he is to carry on this work which
is not yet finished. There is in his case no provision for a new commit-
ment. No further authority is necessary. G. L., c. 60, § 15. If we
accept the conclusion that the recommitment to a collector who succeeds
himself is not necessary and that it is not provided for by any express
provision of law (G. L., c. 60, § 97, as amended), the question will now
be whether, under these circumstances, this authority to recommit could
be exercised by the board of assessors as fairly implied or incidental to
the powers expressly granted. I am of the opinion that, a method having
been provided to complete the collection, there is no occasion to read
into the statute authority as fairly incidental to other powers expressly
granted. Heard v. Pierce, 8 Gush. 338; Providence & Worcester R.R. Co.
V. Norwich & Worcester R.R. Co., 138 Mass. 277. Accordingly, I therefore
answer your second question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
Civil Service — Health Officer — Laboratory Consultant — City of
Springfield.
The health officer of the city of Springfield is exempt from civil service
rules.
The laboratory consultant of said city is not so exempt.
68 P.D. 12.
March 26, 1930.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir: — You have requested my opinion as to whether the posi-
tions of health officer and laboratory consultant under the board of health
of the city of Springfield are exempt from the civil service rules, under
G. L., c. 31, § 5.
These two positions are authorized by the city council of the city of
Springfield in an ordinance passed December 30, 1929, the pertinent
words of which are as follows : —
"The board of health shall . . . appoint a health officer, not a mem-
ber of the board, who shall perform all such duties as may be required by
said board. It may appoint a laboratory consultant who shall perform all
such medical and sanitary duties as may be required by said board.
Appointments of health officer and of laboratory consultant shall be sub-
ject to confo-mation by the city council. The health officer shall attend
the meetings of the board, shall cause to be made under his supervision
all bacteriological examinations, and shall perform such other duties as
may be prescribed by ordinance. In case of the prevalence or impending
of any infectious or contagious disease within the city he shall give to the
mayor or either board of the city council such advice and assistance as
may be required by any of them."
The pertinent part of section 5 of G. L., c. 31, is as follows: —
"No rule made by the board shall apply to the selection or appoint-
ment of any of the following:
. . . officers whose appointment is subject to confirmation by the ex-
ecutive council, or by the city council of any city."
If the health officer and the laboratory consultant are officers of the
city of Springfield, within the meaning of G. L., c. 31, § 5, whose appoint-
ments are subject to confirmation by the city council, then these appoint-
ments need not be made under the civil service rules.
The answer to your question can be made only by determining whether
the health officer and the laboratory consultant are officers, as the term
"officer" is used in the statute. This depends largely upon the duties to
be performed and the tenure of office. See Attorney General v. Tillinghast,
203 Mass. 539. "A city council could not evade the statute by providing
that a mere employee should be either elected or confirmed by the city
council," and by calling him an officer. See Attorney General v. Tillinghast,
supra, page 542. The rules laid down in that case are as follows: —
"The holder of an office must have entrusted to him some portion of
the sovereign authority of the State. His duties must not be merely,
clerical, or those only of an agent or servant, but must be performed in
the execution or administration of the law, in the exercise of power and
authority bestowed by the law. ... A public officer is one ' whose duties
are in their nature pubHc, that is, involving in their performance the
exercise of some portion of the sovereign power whether great or small,
and in whose proper performance all citizens irrespective of party are in-
terested, either as members of the entire body politic or of some duly
established subdivision of it.' Morton, J., in Attorney General v. Drohan,
169 Mass. 534, 535. ...
P.D. 12. 69
Other important tests are the tenure by which a position is held,
whether its duration is defined by the statute or ordinance creating it, or
whether it is temporary or transient or for a time fixed only by agreement ;
whether it is created by an appointment or election, or merely by a con-
tract of employment by which the rights of the parties are regulated;
whether the compensation is by a salary or fees fixed by law, or by a
sum agreed upon by the contract of hiring."
Applying these tests to the position of health officer, it is apparent that
the health officer is an officer subject to confirmation by the city council,
and is therefore exempt from the civil service rules. The health officer is
required to be appointed, and he has important duties of a public nature
to perform. He must attend the meetings of the board, he is required to
cause to be made under his supervision all bacteriological examinations,
and in case of the prevalence or impending of any infectious disease he
must render such advice and assistance to the mayor or either board of
the city council as may be required by them. Note, too, that by section 4
of the ordinance his tenure of office is for three years, and he may only
be removed within that time by the board for cause and with the approval
of the city council. No mere emploj^ee could render these duties and be
removable only for cause. It is my opinion that the health officer of the
city of Springfield is an oflfiicer exempt from the civil service rules, under
section 5 of G. L., c. 31.
As to the other position, the board of health '^may appoint a laboratory
consultant who shall perform all such medical and sanitary duties as may
be required by said board." Not a word is said in the ordinance about
any other duties he is to perform, nor is anything said concerning his
tenure of office. He is a mere employee of the board, and is apparently
meant to assist the health officer in his detail work. The board, further-
more, is not obliged to appoint a laboratory consultant, but if it does, his
appointment is subject to confirmation by the city council. As I have
pointed out, however, confirmation by the city council is not sufficient to
exempt the position from the rules of the civil service. The position, to
be exempt, must also be an office.
Under the rules as laid down in the Tillinghast case, cited above, it is
my opinion that the laboratory consultant is a mere employee, as dis-
tinguished from an officer, and hence is not exempt from the civil service
rules, under section 5 of G. L., c. 31. See also I Op. Atty. Gen. 72; III
Op. Atty. Gen. 129; and Robertson v. Commissioner of Civil Service, 259
Mass. 447, 449, and cases there cited.
Very truly yours,
Joseph E. Warner, Attorney General.
Civil Service — Veteran — Preference.
A veteran is not entitled to preference in selection, under G. L., c. 31,
§23 or §24.
A disabled veteran is entitled to preference in being retained in employ-
ment, under G. L., c. 31, § 23.
March 29, 1930.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir: — You request my opinion as to certain questions of law
relating to veterans' preference, referred to in certain correspondence. I
70 P.D. 12.
assume from reading the correspondence that the questions as to which
you request my opinion are as follows : —
(1) Is a veteran, other than a disabled veteran, entitled to preference
in selection (as well as in certification), under G. L., c. 31, § 23?
(2) Is a veteran entitled to preference in selection in the labor service,
under G. L., c. 31, § 24?
(3) Is a disabled veteran who has been given a position in the classified
service, under section 23, entitled to preference in being retained at work,
when, through lack of work or other cause, it is necessary to suspend
some one in the class?
I am constrained by an opinion of the Supreme Judicial Court, rendered
in the case of Corliss v. Civil Service Commissioners, 242 Mass. 61, to an-
swer the first two questions in the negative.
In that opinion, the court said (p. 64) : —
"It is obvious that the statute contains no provision which compels the
appointment and employment of a veteran. While he is given prefer-
ence on the certified lists submitted by the civil service commission, it
seems apparent that the statute leaves to the appointing power the right
to exercise his discretion in selecting an appointee therefrom."
As established by that case, the only preference to which any veteran
was entitled in seeking appointment to a classified position, under section
23 as it then stood, was a preference in certification; and the court said
that the same is true as to veterans registering for employment in the
labor service, under section 24. Although by St. 1922, c. 463, said section
23 has been amended as to disabled veterans by a provision that "a dis-
abled veteran shall be appointed and employed in preference to all other
persons, including veterans," yet said section 23, so far as it apphes to
veterans who are not disabled, stands as it did when before the Supreme
Court in the Corhss case. Section 24, relating to the labor service, has
not been changed in any respect since the Supreme Court's decision. An
opinion substantially to the same effect as this was rendered to the Com-
missioner of Civil Service by one of my predecessors under date of July
26, 1926 (VIII Op. Atty. Gen. 135).
As to your third question, although it is true that, in some instances,
under civil service statutes the word "employment" has been used in
connection with the word "appointment" for no other reason probably
than that the word "appointment" seemed applicable only to selection
for office, yet in the statute now in question it is my opinion that the use
of the word "employed," particularly in connection with the conjunction
"and," indicates an intent that the preference shall extend to continuation
in employment as well as to original selection. Accordingly, I answer the
third question in the aflEirmative.
Very truly yours,
Joseph E. Warner, Attorney General.
Optometrist — Practice of Medicine — "Doctor."
No specific provision of law gives to a registered optometrist the right to
use the title of "doctor."
April 7, 1930.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir: — You have asked my opinion, for the benefit of the Board
of Registration in Optometry, upon the following question: —
P.D. 12. 71
"Has a person duly registered as an optometrist in this Commonwealth
the right to use the prefix 'doctor' before his name, provided he also
uses the qualifying word 'optometrist' after the name or in connection
therewith?"
It does not appear what, if any, matter is now before said Board re-
quiring its action, with relation to which the question is asked. Under
long-established practice the Attorney General does not give opinions of
law upon purely academic questions or hypothetical cases.
For the guidance of the said Board the Attorney General, however, calls
attention to the opinion of the Supreme Judicial Court in Commonwealth
V. Houtenhrink, 235 Mass. 320, wherein the court, in passing upon certain
evidence which it said warranted a finding that the defendant held him-
self out as a practitioner of medicine, contrary to provisions of law now
embodied in G. L., c. 112, § 6, as amended, said (p. 324): —
"The use of the words 'Doctor of Ophthalmology' on his (the defend-
ant's) sign and billheads bears some indication of holding himself out as
a practitioner of medicine."
It would seem that the use of the word "optometrist" in qualifying
the word "doctor" might, under certain circumstances, likewise fail to
prevent the word "doctor" from being an indication that the user held
himself out as a practitioner of medicine. My attention has not been
directed to any provision of our statutes which specifically gives to a
registered optometrist the right to use the word "doctor."
• Very truly yours,
Joseph E. Warner, Attorney General.
Division of Registration — Boiler Inspection — Prosecutions.
Prosecutions against persons who violate the laws relative to the sale of
boilers may be prosecuted, in municipalities where there are no in-
spectors of plumbing, by any official charged with the duty of prose-
cuting offenses against the Commonwealth.
April 7, 1930.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir : — You have asked my opinion upon two questions which
have arisen, as I am informed, in connection with a matter actually before
the Division of Registration in your Department.
Your questions read as follows : —
"1. Are sections 17, 18 and 19 of G. L., c. 142, appHcable to every city
and town in the Commonwealth?
2. The last three Hues of section 19 read as follows: — 'The inspectors
of plumbing within their respective cities and towns shall cause this and
the two preceding sections to be enforced.' If these sections apply to
every city and town in the Commonwealth, who would enforce the law in
the towns where there are no plumbing inspectors and no plumbing
regulations?"
G. L., c. 142, §§ 17, 18 and 19, read as follows: —
"Section 17. No range boiler shall be sold or offered for sale unless
its capacity is plainly marked thereon in terms of Massachusetts stand-
72 P.D. 12.
ard liquid measure, and with the maker's business name, in such manner
as to be easily identified.
Section 18. No copper, iron or steel pressure range boiler, plain or
galvanized, or other vessel or tank in which water is to be heated under
pressure, shall be sold or offered for sale without having stamped thereon
the maker's guarantee that it has been tested to not less than two hun-
dred pounds hydraulic or hydrostatic pressure to the square inch, together
with the maximum working pressure at which it may be installed. And
no such boiler, or other vessel or tank in which water is to be heated un-
der pressure, shall be installed if the working pressure is greater than
forty-two and one half per cent of the guaranteed test pressure marked
thereon by the maker.
Section 19. Whoever sells or offers or exposes for sale any range
boiler not marked or stamped as provided in the two preceding sections,
or which is falsely marked as having a capacity which is greater by seven
and one half per cent than its true capacity, or who marks or causes the
same to be marked with such false capacity, shall be punished by a fine
not exceeding fifty dollars. The inspectors of plumbing within their re-
spective cities and towns shall cause this and the two preceding sections
to be enforced."
These sections, though now embodied in G. L., c. 142, which is entitled
"Supervision of Plumbing," were enacted in their original form by Gen.
St. 1916, c. 154, an enactment separate and distinct, and by its provisions
unconnected with any laws relative to plumbing. The act was obviously
intended by the Legislature to be of state-wide application. The last
sentence of section 19, as it now appears, was not contained in said statute
of 1916 but was added to the earlier enactment by an amending statute,
Gen. St. 1917, c. 39, § 2. The effect of this latter statute was not to limit
the state-wide application of the measure but to place the duty of prose-
cution of offenses under the act upon the holders of certain designated
official positions.
I am of the opinion that, when in any given locality such official posi-
tions have not been created or do not now exist, the provisions of sections
17, 18 and 19 may be enforced by appropriate procedure under section 19
by any official who may properly prosecute offenses against the Common-
wealth. As a practical matter, such a prosecution, if instituted in the
district courts, might well be undertaken by a member of the State PoHce.
Very truly yours,
Joseph E. Warner, Attorney General.
Civil Service — City of Somerville — Employment Commission.
The commissioner and assistant commissioner of employment in Somer-
ville are within the terms of the laws relative to civil service.
April 7, 1930.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir : — You have requested my opinion upon the question of
whether the present employment commissioner of the city of Sornerville,
in charge of the men's division of the municipal employment service, and
the assistant commissioner, in charge of the women's division thereof, are
heads of a principal department of said city, and as such exempt from the
P.D. 12. 73
civil service laws and rules, under the provisions of G. L., c. 31, § 5, as
amended by St. 1923, c. 130. Said section 5 reads as follows: —
"No rule made by the board shall apply to the selection or appoint-
ment of any of the following:
Judicial officers; officers elected by the people or, except as otherwise
expressly provided in this chapter, by a city council; officers whose
appointment is subject to confirmation by the executive council, or by
the city council of any city; officers whose appointment is subject to the
approval of the governor and council; officers elected by either branch of
the general court and the appointees of such officers; heads of principal
departments of the commonwealth or of a city except as otherwise pro-
vided by the preceding section; directors of divisions authorized by law
in the departments of the commonwealth; employees of the state treas-
urer appointed under section five of chapter ten, employees of the com-
missioner of banks, and of the treasurer and collector of taxes of any city;
two employees of the city clerk of any city; public school teachers; secre-
taries and confidential stenographers of the governor, or of the mayor of
any city ; clerical employees in the registries of probate of all the counties ;
police and fire commissioners and chief marshals or chiefs of police and of
fire departments, except as provided in section forty-nine, and such others
as are by law exempt from the operation of this chapter."
The charter of the city of Somerville (St. 1899, c. 240) makes no pro-
vision for the establishment of a municipal employment service. It con-
tains particular provisions relative to the establishment of a considerable
number of designated departments. The board of aldermen had author-
ity, however, to create a new department (see Attorney General v. Tilling-
hast, 203 Mass. 539, 545-6), and I assume, for the purposes of this opinion,
without passing upon the point, that it had authority to establish a de-
partment of the character indicated by the name "Municipal Employ-
ment Service," and that said board did establish such service as a depart-
ment by an order passed on January 9, 1930, which you have placed before
me, although the name "department" was not specifically given to the
service thereby established. This order reads: —
"City of Somerville
In Board of Aldermen, Jan. 9, 1930.
Ordered: — That a Municipal Employment Service be established in
this city in connection with a recommendation of His Honor, Mayor
John J. Murphy, in his inaugural address January 6, 1930, and a com-
munication from His Honor dated January 9, 1930.
It is understood that the expense of this service is to be approximately
$7,500 a year, and will employ a commissioner, assistant commissioner
and other clerical assistants as needed, and for which an appropriation
will be recommended at a later date.
A true copy of an order approved Jan. 11, 1930.
Attest :
Norman E. Corwin,
City Clerk r
I also assume that by the terms of this order the board of aldermen
created the positions of commissioner and assistant commissioner of such
new department, and that from information given me, by appointment of
the mayor, confirmed by actions of said board, one Ercolini was made
'-t , P.D. 12.
such commissioner and one McGoldrick was made assistant commis-
sioner. The appointments as made by the mayor read as follows : —
"January twenty-three
1930.
To the Honorable, the Board of Aldermen.
Gentlemen: — I hereby appoint, subject to confirmation by your Hon-
orable Board, Erminio Ercolini as Employment Commissioner in the
Municipal Employment Bureau at a salary of $3,000 per year.
Respectfully,
John J. Murphy,
Mayor."
"January 23, 1930.
To the Honorable, the Board of Aldermen.
Gentlemen: — I hereby appoint, subject to confirmation by your
Honorable Board, Mary E. McGoldrick as Assistant Commissioner in
charge of Women's Division, Municipal Employment Service at a salary
of $2500 per year.
Very truly yours,
John J. Murphy,
Mayor."
I am of the opinion that the language of such order and appointment
indicates that the commissioner is the head of the new department, and
that there was not an appointment of two co-equal commissioners. It
follows that the position of assistant commissioner is not that of the
head of a department, and hence is not exempt, for that reason, from the
apphcation of the civil service law.
Though the commissioner be the head of said department, that fact
alone will not relieve the position from the requirements relative to civil
service, unless said department is a "principal" department, as that word
is used in G. L., c. 31, § 5, as amended. From the information which has
been furnished me relative to this employment service, and after a con-
sideration of the inaugural address of the present mayor of Somerville of
January 6, 1930, in this respect, his communication to the board of alder-
men of January 9, 1930, and the order of the latter body of January 9,
1930, I am of the opinion that this newly created department is not a
"principal" department of the city of Somerville, within the meaning of
said section 5. (See Robertson v. Commissioner of Civil Service, 259 Mass.
447; Attorney General v. Trehy, 178 Mass. 186; Attorney General v. A71-
drew, 206 Mass. 46.)
Although it may well be that the said commissioner and assistant
commissioner are officers rather than employees of the city, their appoint-
ment is not subject to the approval of a city council, and hence they do
not fall within the exemption from the civil service laws provided in said
section 5 for officers whose appointment is to be so approved. Approval by
a board of aldermen is not the equivalent for such purpose of approval
by a city council. Attorney General v. Douglass, 195 Mass. 35.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 75
Commissioner of Civil Service — Municipalities — Laborers.
It is the duty of the Commissioner of Civil Service to enforce the dis-
missal of non-citizen laborers of a municipality, under G. L., c. 31,
§§ 19 and 37.
April 16, 1930.
Hon. Elliot H. Goodwin, Commissioner of Civil Service.
Dear Sir: — You state that certain non-citizens are emploj^ed in the
labor service of the city of Springfield; that you have a list of citizens
eligible for such employment; and that complaint has been made to you
by a citizen of said employment of non-citizens. You request my opinion
as to whether you are required to take steps to enforce the dismissal of
such non-citizens and the appointment in their places of citizens from the
eligible list.
In my opinion, the statute expressly requires you to take such steps.
G. L., c. 31, § 19, provides: —
"In all work of any branch of the service of the commonwealth, or of
any city or town therein, citizens of the commonwealth shall be given
preference."
Section 37 of said chapter provides: —
"On complaint by any citizen of the commonwealth of the employment
of a non-citizen when there is a list of eligibles existing, the commissioner
shall take steps to enforce the dismissal of such non-citizen and the ap-
pointment in his place of a person from the ehgible list."
You call to my attention the fact that the labor service of the city of
Springfield was classified on September 16, 1929, and that all laborers
then employed, including some or all of the non-citizens whose employ-
ment is now in question, were then entered upon the records of your
Department as properly employed under civil service (Rule 30, § 2). I
do not see that this fact in any way aids the non-citizens. The word
"employment" in this statute (section 37) clearly refers to a continuation
in employment and not to the act of appointment. It is true that a
question might be raised as to whether the statute is retroactive. That
question was expressly left open by the court in Lee v. Lynn, 223 Mass.
109, 113. The court said: —
"It is not necessary to determine whether the present statutes are so
retroactive as to require the discharge of faithful and efficient aliens in
service at the time of their enactment, or whether they relate only to the
future, see Hanscom v. Maiden & Melrose Gas Light Co., 220 Mass. 1 ; . . ."
But the statute (G. L., c. 31, §§ 19 and 37) was enacted in 1914 (St. 1914,
c. 600) ; and you do not state that any of the non-citizens whose employ-
ment is now in question were employed in their present positions prior to
that date. Even assuming that some of them were, it is no doubt true
that their present employment is not supported by any contract which
pre-existed the statute. Their employment was continued or renewed
after the enactment of the statute, and so became subject to it. (It is
unnecessary to consider what, if any, difference it would make if any of
the non-citizen employees here concerned had been employed in the
same positions under civil service prior to the enactment of the statute of
1914. See Ransom v. Boston, 192 Mass. 299. The positions here in-
76 P.D. 12.
volved were not under civil service until 1929.) There is therefore no
need of construing the statute of 1914 as having any retroactive effect in
order to apply it to the non-citizens whose employment is now in ques-
tion. It may be noted, however, that in an opinion rendered by one of
my predecessors (IV Op. Atty. Gen. 300) the statute was construed as
requiring the dismissal of non-citizens even though employed prior to its
enactment.
Yours very truly,
Joseph E. Warner, Attorney General.
Insurance — Domestic Fraternal Benefit Corporation — Life Members.
Life members of a domestic fraternal benefit corporation may be ex-
empted from annual dues by by-law.
April 23, 1930.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir: — You have asked my opinion upon two questions relative
to membership in a domestic fraternal benefit corporation which comes
within the provisions of G. L., c. 176, § 45.
You advise me that you have before you for your consideration the
action of the relief association of the Lynn fire department in paying
disability benefits to so-called life members; that these life members
were formerly firemen of the Lynn fire department, from the personnel
of which, I assume from your communication, the membership of the
association is entirely recruited; that they were formerly ordinary mem-
bers of the association, and that they have attained the status of life
members, so called, by virtue of a by-law of said association, which reads
as follows : —
''Any person having been a member of this Association for the term
of five successive years prior to January 20, 1907, may, upon apphcation
to the clerk, become a member for life and receive a certificate to that
effect and be exempt from yearly dues."
These so-called life members, you inform me, are now retired upon a
pension from the said fire department.
The questions which you have asked with relation to the foregoing
facts are as follows: —
"1. Can ex-members of a fire department, who are no longer in active
service, become life members of such a society and thereby become en-
titled to death, disability or permanent disability benefits without pay-
ment of yearly dues?
2. Does the law permit the adoption of a by-law establishing life mem-
bership in a society of this class, as above set forth, and can such life
members be beneficial members?"
I answer both your questions in the affirmative. I am not aware of
any specific statutory provision which forbids the creation of life mem-
bership in a domestic fi^aternal benefit corporation, such as the one under
consideration, by the enactment of a by-law such as that above set forth,
and I know of no general principle of law applicable to such an associa-
tion which would render such a by-law void under the existing facts con-
nected with the existence of the association, as you have set them forth.
P.D. 12. 77
Associations of the type under consideration have very broad powers of
self-government under G. L., c. 176, § 32, which is as follows: —
"Every society may, subject to this chapter, make a constitution and
by-laws for its government, admission of members, management of its
affairs, and the fixing and readjusting of the rates and contributions of
its members from time to time, and may amend its constitution and
by-laws, and it shall have such other powers as are necessary or inci-
dental to carry into effect its objects and purposes. The constitution and
by-laws may prescribe the officers and elected members of standing com-
mittees, who may be ex officiis directors or other officers corresponding
thereto."
There is no specific provision in the statutes which compels the with-
drawal from membership in associations of the type under consideration
of such members as have ceased to be regular employees of a municipal
fire department in which they functioned at the time they joined such an
association. Indeed, G. L., c. 176, § 4, expresses a legislative intent to
permit former municipal employees to be members of such associations.
This section reads as follows : —
"A corporation which limits its membership to the members of a par-
ticular fraternal beneficiary corporation, fraternity or religious denomina-
tion, or to the graduates of a designated professional or vocational school,
or to the employees or ex-employees of cities or towns or of the common-
wealth or of the federal government, or to the employees or ex-employees
of a designated firm, business house or corporation, or of any department
of a designated firm, business house or corporation, or to persons of the
same foreign extraction retaining common national interests and desig-
nation, or to persons of the same occupation, may be on the lodge system,
and if not on the lodge system shall be governed by a direct vote of its
members without the lodge system. A corporation not so limiting its
membership shall be on the lodge system, with a representative form of
government as defined in sections two and three."
It is to be noted that although life members in said association are ex-
empted from the payment of annual dues, the said by-law does not pur-
port to relieve them from the liability to pay assessments which may be
levied upon the members.
Very truly yours,
Joseph E. Warner, Attorney General.
City of Boston — Police Commissioner — Acting Commissioner.
If a vacancy exists in the office of Police Commissioner for the City of Bos-
ton, the Superintendent of Police, if not disqualified, becomes Acting
Commissioner.
May 6, 1930.
His Excellency Frank G. Allen, Governor of the Commonwealth.
Sir: — You have requested my opinion upon the following question of
law: —
"The Police Commissioner for the City of Boston having been removed
by the Governor, with the advice and consent of the Council, in accordance
with the provisions of St. 1906, c. 291, § 7, and that office having been duly
7S P.D. 12.
declared vacant, does the Superintendent of Police, or, in case of his absence
or disability, the next ranking officer, become Acting Police Commis-
sioner?"
St. 1906, c. 291, § 7, provides, in part, with relation to the appointment,
and removal, of the Pohce Commissioner for the City of Boston, as fol-
lows : —
"The governor, with the advice and consent of the council, shall appoint
a single police commissioner for the city of Boston, who shall be a citizen of
Boston and who shall have resided therein for at least two years immedi-
ately preceding the date of his appointment. Such police commissioner
shall not engage in any other business and shall be sworn to the faithful
performance of the duties of his office before entering upon the same.
Said police commissioner shall be appointed for a term of five years,
beginning on the first Monday in June, in the year nineteen hundred and
six, and shall hold his office until his successor is appointed and qualified,
and any vacancy occurring shall be filled by the governor, with the advice
and consent of the council, by an appointment for a term of five years.
Said police commissioner may be removed by the governor, with the
advice and consent of the council, for such cause as he shall deem sufficient.
Such cause shall be stated in his order of removal."
Section 11 of said chapter 291 provides: —
"The said police commissioner may at any time, subject to removal by
him at his pleasure, designate some member of the police force to be acting
police commissioner.
In case of the absence or disability of the police commissioner without
his having designated an acting commissioner, the superintendent of
police, or, in case of his absence or disability, the next ranking officer, or
where there are two such officers of equal rank, the senior officer in date of
appointment, shall be acting commissioner while such absence or disability
continues. An acting police commissioner shall receive no extra compensa-
tion for services as such."
You advise me that the Police Commissioner has been removed from
office, and I assume from your question that a vacancy now exists in such
office.
I am of the opinion that the words "in case of the absence or disability of
the pohce commissioner," as used in the second paragraph of said section
11, indicate a legislative intent to provide for the performance of the duties
of such Commissioner by a designated official, in the event of any cause
arising which might render the Commissioner unable to perform such
duties. The word "disability," as here used, has a broader meaning than
mere physical incapacity or other disablement of like character, with
"absence," and is not limited to the effect of mere bodily or mental ail-
ments but is employed as a comprehensive term sufficient to cover all dis-
qualifications, of which a total loss of authority and legal capacity to act
through removal is one.
It follows that under the terms of said St. 1906, c. 291, the Superintend-
ent of Police is now Acting Pohce Commissioner unless he be absent or
under a disability; in which latter case the next ranking officer, or, if there
be more than one of the next rank, then the senior of such in date of appoint-
ment, is the Acting Police Commissioner.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 79
Pension — Veteran — Officer.
A veteran of the Civil War who has held the position of assistant register of
probate for ten years prior to his election as register of probate is en-
titled to a pension under G. L., c. 32, § 49, as amended.
May 12, 1930.
His Excellency Frank G. Allen, Governor of the Commonwealth.
Sir : — You have requested my opinion relative to an application by
John D. Cobb for a pension under the provisions of G. L., c. 32, § 49, as
amended by St. 1921, c. 279.
The enactment in question reads as follows : —
"A veteran of the civil war in the service of the commonwealth, if inca-
pacitated for active duty, shall be retired from active service, with the
consent of the governor, at one half the rate of compensation paid to him
when in active service, to be paid by the commonwealth; provided, that
no veteran shall be retired under this section unless he shall have been in the
service of the commonwealth at least ten years. But if, in the opinion of
the governor and council, any veteran of the civil war, after five years in
said service, is incapacitated to such a degree as to render his retirement
necessary for the good of the service, he may so be retired. A veteran
otherwise qualified for retirement under this section, whose term of service
was for a fixed number of years which has expired, or whose office has been
abolished, shall be entitled to its benefits, without reappointment, from
the date of incapacitation, said date to be determined by the governor and
to be certified by him to the state auditor."
Mr. Cobb's application sets forth : —
"As a veteran of the Civil War, Captain, Company I, 35th Regiment,
Massachusetts Volunteers, U. S. Army, and having served twenty-five
years as assistant register and ten years as register of probate for the County
of Norfolk, I apply for a pension (one-half salary), which I understand is
the State retirement allowance (according to law) for one with the above
record.
It being more than fifteen years since my retirement from office in Ded-
ham (January, 1914), it is very fortunate that the legality of providing for
my case seems to be covered by G. L., c. 32, § 49, as amended by St. 1921,
c. 279.
Since such a pension can only be granted in response to my personal
application, and since I have reached my ninetieth year, it seems wise to
delay my petition no longer."
Accompanying your request is a letter from the Chairman of the Com-
mission on Administration and Finance which states that the records of the
Adjutant General's office estabhsh the fact that the appHcant is a veteran
of the Civil War and that the applicant held the appointive position of
assistant register of probate for the County of Norfolk for at least ten years
prior to 1904, in which year he was elected register, and was re-elected to
that office from time to time, so that he held the same over a period of ten
years subsequent to 1904. The salary of the said assistant register was
paid by the Commonwealth, he was appointed by the register, and he was
obviously in the service of the Commonwealth. See IV Op. Atty. Gen. 54.
80 P.D. 12.
It has been held by one of my predecessors in office, in an opinion given
on May 22, 1913 (IV Op. Atty. Gen. 54), with which I agree, that registers
of probate, being elective officers, are not within the intent of the Legisla-
ture in providing for pensions of this character, and that the benefits of
such pensions are limited to persons in the service of the Commonwealth
whose title to office arises only from appointment.
I am of the opinion, however, that the fact that an appointive officer has,
after concluding his services in the position held by appointment, served in
an elective office for one or more terms, does not deprive him of the benefits
of a pension provided in connection with the appointive office which he first
held.
Section 49, at least as to its last sentence, which is applicable to this
applicant, inures to his benefit, irrespective of the fact that his appointive
service ended prior to the passage of St. 1907, c. 458, which first set forth
provisions substantially those of said section 49.
I assume from the documents which you have laid before me that the
apphcant is incapacitated for active duty. If, as appears from the facts
submitted to me by the documents annexed to your request, the applicant
served as assistant register of probate for Norfolk County for at least ten
years, his term of service, as he was reappointed from time to time, was in
each instance for a fixed term of years, within the meaning of the instant
statute (see G. S., c. 119, § 11; P. S., c. 158, § 11; R. L., c. 164, § 17; G. L.,
c. 217, § 23), and he would seem to be "otherwise qualified" for retirement,
as the phrase is used in the last sentence of said section 49.
In view of the foregoing considerations, the applicant appears to be
entitled to the pension referred to in said section 49, based upon his service
and pay as an assistant register of probate for Norfolk County.
Very truly yours,
Joseph E. Warner, Attorney General.
Governor and Council — State House Grounds — Legislature.
The Legislature, and not the Governor and Council, is the proper author-
ity to approve the placing of a tablet upon a column within the
State House grounds.
May 13, 1930.
His Excellency the Governor, and the Honorable Council.
Gentlemen: — You request my opinion as to whether the Governor
and Council may lawfully approve a request to place a tablet upon a
granite column within the State House grounds.
G. L., c. 8, as amended by St. 1922, c. 146, provides: —
"No tablet, statue or other memorial of a permanent character shall be
placed in the state house without the approval of the general court.''
The word "in" may be broadly construed to effect the legislative in-
tent. I should have no difficulty in construing the statute above quoted
as prohibiting the placing of a tablet upon the outside of the building.
See Nash v. Webber, 204 Mass. 419, 423; Schaefer v. Houck, 171 N. Y. S.
146. Although there is, of course, more difficulty in construing the word
as equivalent to "in or about," still, in my opinion, that may be done,
if necessary to effect what appears to be the legislative intent; and I
P.D. 12. 81
think that the proposed action now in question is within the purport of
the statute.
In my opinion, appHcation should be made to the Legislature for ap-
proval.
Very truly yours,
Joseph E. Warner, Attorney General.
Credit Union — Officers — Bonds.
gi
»n.
May 16, 1930.
Each officer handling funds of a credit union must give a bond to the
directors, as such, and not to the union.
Hon. Roy A. Hovey, Commissioner of Banks.
Dear Sir : — You have asked my opinion in relation to a proposed
scheme for the bonding of officers of credit unions who handle funds of
such organizations.
You advise me in your letter as to facts in connection therewith as
follows: —
"Certain credit unions incorporated in this Commonwealth and doing
business under G. L., c. 171, have become members of the Credit Union
League of Massachusetts, an unincorporated organization. The league
is an organization whose purpose is to assist credit unions both in their
organization and establishment and in their operation. In this they per-
form a valuable service. All incorporated credit unions in this Common-
wealth, however, are not members of the Credit Union League. The
directors of the credit unions as such are not members of this league.
Chapter 171, which regulates the operation of credit unions, does not
recognize this organization.
The Century Indemnity Company of Hartford, Connecticut, through
one of its agents, is presenting a scheme in connection with the Credit
Union League of Massachusetts whereby it proposes to bond all officers
handling funds of all credit unions who are members of the league, or
as many as will enter into the arrangement, on a schedule form of bond,
binding itself to pay to the 'Credit Union League of Massachusetts or
any of its members,' listed in a schedule attached, as their interest may
appear as obligee, such losses as the obligee shall have sustained to the
amount of indemnity specified. Under the plan the league is to be
made custodian of the bond. The form of the contract is similar to what
is termed the ' statutory form ' furnished at the present time by the officers
individually. The arguments advanced in favor of such a bond by those
interested are, — more simplicity in handling and recording, both by the
credit union and the banking department, and a saving in the rate of
premium charged each credit union entering into the arrangement."
You have laid before me a copy of a bond which it is proposed to use
in connection with the said scheme, and you have also written in your
letter as follows : —
"Section 15 of said chapter 171 requires that the officers of credit
unions handling funds furnish bonds to the directors, which I have as-
sumed as meaning the directors of the credit union of which they are
officers. I have also assumed that under this section a director of a credit
union should be custodian of the individual bond. As the statute leaves
82 P.D. 12.
me somewhat in doubt, I respectfully request your opinion on the follow-
ing questions which arise : —
1. May others than directors of a certain credit union appear as obligee
of a bond furnished by an officer of the credit union handling funds?
2. May the officers of two or more credit unions be included in a sched-
ule form of bond, even if such bond names as obligee the several credit
unions whose officers are bonded thereunder?
3. May others than a director of a credit union be custodian of a bond
furnished by an officer of a credit union handling funds?"
G. L., c. 171, as amended by St. 1926, c. 273, provides in section 15
thereof as follows : —
" Election of Officers. Committees. Bonds.
The directors at their first meeting after the annual meeting shall elect
from their own number a president, one or more vice-presidents, a clerk,
a treasurer, a credit committee of not less than three members, an auditing
committee of three members, and such other officers as may be necessary
for the transaction of the business of the credit union, who shall be the
officers of the corporation and who shall hold office until their successors
are qualified, unless sooner removed as hereinafter provided. The offices
of clerk and treasurer may be held by the same person. No member of the
said board of directors shall be a member of both the credit and the audit-
ing committee unless the number of members of the credit union is less
than eleven. Each office?' handling funds of a credit union shall give bond
to the directors in such amounts and with such surety or sureties and condi-
tions as the com^nissioner may prescribe, and shall file with him an attested
copy thereof, with a certificate of its custodian that the original is in his
possession."
This statute is explicit in its provision that each designated officer of a
credit union shall give bond to the directors. The intent of the Legisla-
ture that such bond shall run to the directors of the union of which each
of such officers, respectively, belongs is manifest.
The bond which you have submitted to me, assuming that it is to be
so executed as to be the bond of the individual officers named in the
schedule annexed thereto, does not purport to run to the directors of the
several credit unions to which such officers respectively belong. On the
contrary, upon its face, it purports to run to the Credit Union League of
Massachusetts or any of its members listed in the annexed schedule, as
these interests may appear.
From the facts which you have set forth in your letter it is apparent
that the Credit Union League of Massachusetts is not a proper obligee of
such a bond, and that as credit unions as such, and not their directors, are
members of such league, the proposed bond does not run to the directors
of the several unions, as prescribed by the statute. A bond running to a
credit union is not a bond given to the directors of a credit union, within
the meaning of the instant statute.
It cannot be assumed that by the use of the word "directors," as desig-
nating the obligee of the required bond, the Legislature intended to com-
prehend a credit union as well. Various considerations may have actuated
the members of the General Court in giving expression to a legislative in-
tent that the directors rather than the union were to be the obligees, and
such intent could scarcely have been expressed in plainer language.
P.D. 12. 83
I am of the opinion that the proposed bond as submitted to me is not
such as should be given under section 15 of G. L., c. 171, as amended, by
the officers of credit unions handling funds thereof. As the proposed bond
which you have submitted to me is, as I am informed, the only one now
before you as to which you are required to signify your approval, and as
to which you have doubt concerning the propriety of its form, I do not
deem it necessary to answer your three questions specifically.
Very truly yours,
Joseph E. Warner, Attorney General.
Ways — City of Boston — State Highways.
That part of Northern Avenue constructed by the Commonwealth under
St. 1903, c. 381, is a highway of the city of Boston.
May 20, 1930.
Hon. Frank E. Lyman, Commissioner of Public Works.
Dear Sir: — You have requested my opinion as to whether that part
of Northern Avenue in the city of Boston which has been constructed by
the Commonwealth under the provisions of St. 1903, c. 381, across land of
the Commonwealth is a State or city highway.
I am of the opinion that the said part of Northern Avenue is a highway
of the city of Boston.
The terms of St. 1903, c. 381, which will be set forth in more detail here-
after, laid out as highways certain ways, shown on a plan which you have
submitted and which I am informed is identical with the one referred to in
St. 1903, c. 381, §§ 1 and 2, to be known as Sleeper Street and Northern
Avenue. Part of Northern Avenue so laid out extended over lands owned
by the Commonwealth; onlj^ a portion of this part has been constructed
in a manner approved by city officials. It is this portion alone in respect
to which an opinion has been requested. The status of the remaining por-
tion will, however, sufficiently appear from the considerations herein set
forth.
St. 1901, c. 507, contains substantially the same provisions as those in
question, except that it was to take effect upon acceptance by the city
council. The city council did not accept this act of 1901, and that of 1903
v/as then enacted to take effect upon its passage, May 25, 1903.
No construction under the act of 1903 appears to have been completed
by May 25, 1914, on which date the then commissioner of pubhc works of
the city of Boston wrote to the Directors of the Port of Boston the follow-
ing communication, of which you have informed me : —
"With reference to cleaning Northern avenue at the new docks, I beg to
say that inasmuch as the construction of this street is not yet completed,
it is not practicable for this department to attempt to clean it. I can only
suggest that until the completion of the street, your Commission arrange,
either directly or through the various contractors, to keep the street in such
condition as you may consider proper. When the street is completed, in-
cluding the track-work and the removal of material and other obstructions,
if you will kindly notify this department, we will again take charge of the
cleaning of the street."
I am advised that on December 10, 1914, the following letter was sent to
the commissioner of public works of Boston, presumably from the Directors
of the Port of Boston : —
84 P.D. 12.
"Under the provisions of chapter 507 of the Acts of 1901 the Directors
of the Port of Boston, as successors to the Board of Harbor and Land Com-
missioners, have completed the paving and regulating of Northern Avenue
across the land of the Commonwealth from the land of the New York,
New Haven and Hartford Railroad Company, a distance of about 1600
feet, the construction being in accordance with plans approved by you on
May 19, 1913."
The reference in the letter of December 10, 1914, to chapter 507 of the
Acts of 1901 is clearly an unintentional error; the reference should, of
course, be to chapter 381 of the Acts of 1903, as is recognized in the follow-
ing report of the engineer of the Department of Public Works of the Com-
monwealth, which you have laid before me : —
"In accordance with chapter 381 of the Acts of 1903, Northern Avenue
has been laid out and built from Atlantic Avenue easterly to about the
easterly limit of land leased to the Boston Fish Market Corporation, cross-
ing Fort Point Channel by a bridge and crossing lands of the New England
Railroad Company, the New York, New Haven and Hartford Railroad
Company and lands of the Commonwealth. Under the provisions of sec-
tion 3 of said chapter, the Directors of the Port of Boston in 1913 and 1914,
in compliance with plans approved May 19, 1913 by the Commissioner of
Public Works of the City of Boston, paved that portion of the avenue across
lands of the Commonwealth."
In this connection you have advised me in your communication that, —
"From time to time the city has repaved portions of the street and side-
walks and in connection therewith has required the Department to repave
the portion between the rails of tracks of the Commonwealth crossing the
Avenue, at the expense of the Commonwealth."
In writing this opinion I shall assume, then, that a portion of the layout
over Commonwealth land, namely, that referred to in the foregoing report
of the department engineer, has been constructed in accordance with plans
approved by an officer of the city who has succeeded to the rights and
duties of the city engineer sometime subsequent to February 1, 1911, and
that it has been and is being used for public travel.
St. 1903, c. 381, provides: —
"Section 1. Northern avenue is hereby laid out in the city of Boston
from Atlantic avenue near Oliver street easterly to Fort Point channel,
thence across said channel by a bridge, and thence across lands of the
. . . Railroad Company, and lands of the Commonwealth; ... as
shown on a plan in the office of the harbor and land commissioners, en-
titled, 'Plan of the Location of Northern Avenue from Atlantic Avenue
to and over the Lands and Flats of the Commonwealth at South Boston,
and of Sleeper Street from Congress Street to Northern Avenue, March,
1903 . . .'; reserving however to said railroad companies, their suc-
cessors and assigns, the right to lay and operate at grade two tracks
along and others across the land owned by them and included within said
Northern avenue, . . . substantially as shown on said plan; and reserving
to the Commonwealth and its assigns similar rights of laying two tracks
along and others across said avenue, in the lands owned by the Com-
monwealth and included within said avenue. Said avenue and street shall
he highways: provided, however, that the manner of constructing and
operating the railroad tracks in and across the same, and the highway
P.D. 12. 85
traffic and travel upon and other uses of Northern avenue shall be regu-
lated, and the location of the tracks along said avenue and street shall be
determined by the board of railroad commissioners, who, having due
regard to the intent and purpose hereof, shall in writing from time to
time prescribe the regulations, and may change or modify the same.
Section 2. The board of harbor and land commissioners shall forth-
with file in the registry of deeds for the county of Suffolk a copy of the
foregoing section, together with a duplicate of the plan described therein,
signed by the commissioners; and any person whose property is taken
for said avenue or street, and who is entitled to damages therefor, shall
have such damages paid by the city. . . .
Section 3. The railroad companies aforesaid shall, upon the filing
of the copies aforesaid, forthwith release to said city . . . their lands
included within said avenue . . . and the city engineer, in the name and
behalf of said city, shall forthwith thereafter construct said avenue from
Atlantic avenue to the land of the Commonwealth, and said Sleeper
street from said Congress street to said Northern avenue, and shall con-
struct said bridge ... in accordance with such plans and specifications
as shall be approved by the board of harbor and land commissioners;
and said board, in the name and behalf of the Commonwealth, shall
from time to time, in a manner approved by said city engineer, construct
the remainder of said avenue and any extensions thereof which may here-
after be made over the lands of the Commonwealth.
Section 4. The Commonwealth shall pay to said city from time to
time, as the work progresses, upon the order of the board of harbor and
land commissioners, the sum of two hundred and sixty thousand dollars
out of the Commonwealth's Flats Improvement Fund, established by
chapter two hundred and thirty-seven of the acts of the year eighteen
hundred and seventy-eight, and said city shall use the money so paid to
meet the expenses of taking lands and the expenses incurred by said city
engineer under authority of this act; and the treasurer of said city, from
time to time, on the request of the mayor, shall issue bonds of said city,
outside of its legal debt limit, to the amount required, retain the proceeds
thereof in its treasury, and pay therefrom the remainder of the expenses
incurred by said city engineer in carrying out the work required of said
city or of said engineer under authority of this act.
Section 5. Chapter five hundred and seven of the acts of the year
nineteen hundred and one is hereby repealed.
Section 6. This act shall take effect upon its passage."
The words ''said avenue and street shall be highways" occur in sec-
tion 1, and it is important to determine their meaning as employed in
relation to the context of the whole chapter. The use of the word "high-
ways" in this chapter will be seen to carry the meaning of a way opened
to public travel, as distinguished from a private way, and not in any
sense to indicate State highways in distinction from town or private ways.
The word is used here in introducing the proviso reserving certain rights
of regulation in derogation of an unrestricted public easement.
An examination of the provisions of the Revised Laws of 1902, which
delineate the legal background of the highway system in this Common-
wealth at the time the instant statute was passed, shows that it devotes
a separate chapter to "State Highways" (c. 47), whereas chapter 48,
entitled "Of the Laying Out and Discontinuance of Ways and of Damages
Caused by the Taking of Land for Public Uses," is divided into divisions
86 P.D. 12.
dealing with separate subjects, two of which are headed, respectively,
''Highways" and "Town Ways and Private Ways."
In 1835, in the case of Comvionwealih v. Boston, 16 Pick. 442, the court
said, at page 444 : —
"It is now considered, that the distinction between a town-way and
a highway, rather refers to the manner in which they are originally estab-
hshed, than to their legal character when estabhshed; that the pubhc
at large have the same beneficial use of a town- way as of a highway; that
it is equally the duty of the town to keep them in repair; . . ."
Furthermore, in every portion of chapter 47 in which a distinction be-
tween a State highway and a highway which is not such is important
and is sought to be made, the words "state highway" are employed; as
in section 6, providing that after the Commonwealth has laid out and
taken charge of a new or existing way it shall thereafter be a State high-
wa}^- and as in sections 7, 9, 10, 13 (providing for the Commonwealth's
liability for injuries from defects in State highways) and 14.
In any case, I am here concerned with the construction and effect of
a special act, which contains more than one clear indication of the Legis-
lature's intention that the layout shall at some time become a public way
for the maintenance and repair of which the city is to be responsible.
One such indication is the reservation to the Commonwealth of rights
to lay tracks along and across the avenue in the lands owned by the
Commonwealth; such a reservation would appear to be unnecessary if
the way were to be a State highway. St. 1903, c. 381, § 1.
Another manifestation of the intention is the provision that any con-
struction, even though across lands of the Commonwealth, shall be in a
manner approved by the city engineer. St. 1903, c. 381, § 3.
The distinction made in the statute between the portion of the layout
which is upon lands of the railroad and that portion which is upon lands
of the Commonwealth, as to the agency which was to perform the con-
struction, was undoubtedly made on account of the obvious impropriety
of delegating to a municipality the power to decide from time to time
upon the necessity of extending the construction over land of the State
which created it. Regarding the whole development in its entirety, then,
it would seem that had not a part of it extended over Commonw^ealth
land the whole project would have been placed in the discretion and
hands of the city engineer. This being the reasonable explanation of the
Commonwealth's part in the construction, there exists no other basis for
a contention that a State highway was intended.
It being clear, then, that the Legislature intended by St. 1903, c. 381,
to lay out a way for which the city should become responsible, the ques-
tion is whether the land laid out has yet taken on this character in whole
or in part.
In the first place, the adjudication that a way is of common convenience
and necessity does not by itself convert the way into a public way.
In Loker v. Damon, 17 Pick. 284 (1835), an action of trespass instituted
by the owner against one entering the part laid out, before construction,
the court said (p. 287): "It is not the magic of a judicial decree, that
converts forests and morasses into actual highways." See to the same
effect, — Bliss v. Deerfield, 13 Pick. 102 (1832) ; Dnmj v. Worcester, 21
Pick. 44 (1838); and Bowman v. Boston, 5 Cush. 1 (1849). That which is
necessary to be done before a way becomes a public way after construc-
tion is the opening for use. Commonwealth v. Boston & Lowell R.R. Corp.,
P.D. 12. 87
12 Cush. 254 (1853). A formal acceptance by the city is not necessary.
Durant v. Lawrence, 1 Allen, 125 (1861) ; and Bliss v. Deerfield, supra.
Bliss V. Deerfield, supra, was an action for injuries due to a defect in a
highway. By St. 1825, c. 171, the commissioners were required to finish
all roads to their acceptance, which they had not done in the particular
instance before the court. The road had, however, been constructed,
opened for public travel and used for such, and the town was held hable.
The court said (p. 109) : —
"What is evidence of the opening of the road for pubKc use, what con-
stitutes notice to the public, that those whose duty it is to make it con-
sider it finished and opened for use, the statutes on the subject have no-
where provided. It is then a fact to be proved by the acts, conduct and
declarations of those whose duty it is to finish and open it."
In Drury v. Worcester, supra, the town was held liable for a defect
after the road was actually opened to pubhc travel, although the town
had expressly refused to accept the way. In that case the court said
(p.49):-
"It follows . . . that whenever by positive act or tacit permission,
they (the town) suffer a highway to be opened to pubhc use, and to be
actually used by the public, the town becomes responsible for its safe
condition."
Apparently, suflScient tacit permission is found in a knowledge that the
way has been constructed and is being used for pubhc travel, coupled v/ith
a failure to take steps to notify the public of its lack of responsibility and
to close the way. The only specific act of acceptance, then, which must
be performed by the city in the instant matter is the approval by the
city engineer of the manner of construction, under section 3. Your De-
partment advises me that approval was obtained from the commissioner
of public works of the city of Boston, in whom were vested, by a city ordi-
nance of 1910 (c. 9), effective February 1, 1911, the rights and duties of
the city engineer, and who thus became the proper official to comply with
this provision.
It need scarcely be remarked that R. L., c. 48, § 92, providing that a
laying out shall be void as against the owner unless possession is taken
within two years, is in no way pertinent to the instant matter, since a
breach of this section can be availed of only by the owner [Pickford v.
Lynn, 98 Mass. 491 (1868)], and more particularly since the act of 1903
specifically provides for a departure from the general rule bj^ allowing the
construction to take place "from time to time." St. 1903, c. 381, § 3.
See also Commonwealth v. Boston, 16 Pick. 442, 446.
The only remaining question is that raised by the fact that only a por-
tion of the land laid out has been constructed. That a program of piece-
meal construction was contemplated is clear, as already pointed out; but
it might be contended that the intention was that, even though the layout
was to become a highway in charge of the city when completed, this result
was not to follow until the completion of the whole development. The
case of Commonwealth v. Boston, 16 Pick. 442 (1835), arose upon circum-
stances so similar to those before me as to provide an answer to this con-
tention. St. 1803, c. Ill, provided for the annexation to Boston of South
Boston and authorized the selectmen to lay out streets therein, and pro-
vided, also, that the city should not be obliged to complete the streets so
laid out sooner than they might deem it expedient. In pursuance of this
88 ■ P.D. 12.
authority the selectmen made a layout and constructed and opened some
of the streets so laid out, and an indictment against the city for failure
to maintain one of the streets so constructed and opened was sustained.
The court recognized the general law then in force requiring the imme-
diate construction and maintenance of any way laid out, but held that
the effect of the special proviso, that the selectmen should not be obliged
to complete the streets sooner than they might deem it expedient, was to
place entirely in the power of the town the authority to act and to declare
this expediency in regard to the whole, any part or none of the layout.
With specific importance for the instant case was the further decision of
the court that as soon as the requirements of construction, opening and
declaration of expediency were fulfilled as to any part of this layout, that
part became a public way for the maintenance of which the city was
responsible.
The converse of this proposition was applied in Bowman v. Boston,^ 5
Cush. 1 (1849), wherein the plaintiff was non-suited in an action for in-
juries sustained upon a part of the same layout under which Common-
wealth V. Boston, supra, arose, since, although some construction and travel
had taken place, the city had not declared that that specific portion
should become a completed way.
In summary, then: By St. 1903, c. 381, the Legislature made a layout
upon which it contemplated that final construction should take place
from time to time, and which it intended should at some time become, at
least in part, a pubhc way for the maintenance of which the city should
be responsible. I am of the opinion that upon the construction of any
portion of the layout in accordance with the statute, and its opening and
use for public travel under such circumstances as to leave no question
as to the city's notice thereof, such portion became such a public way,
rather than that such a result was to wait upon a construction of the
whole layout, which might never take place.
Very truly yours,
Joseph E. Warner, Attorney General.
Lord's Day — City or Town Clerk — Performance of Duties.
A city or town clerk is not under a duty to deliver on Sunday a certificate
of intention to marry.
May 27, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You have asked my opinion in the following communi-
cation: —
"Will you kindly advise me whether, under the provisions of G. L.,
c. 207, § 28, as amended by St. 1930, c. 51, and considered in connection
with St. 1930, c. 141, a city or town clerk is obliged to dehver certificates
of marriage intention on Sundays and hohdays when the fifth day falls
on a Sunday or a holiday."
In my opinion, a city or town clerk is not required to deliver certificates
of marriage intention on the fifth day after the filing of the notice of
intention when such day falls upon a Sunday or a legal holiday.
G. L., c. 207, § 28, as amended by St. 1930, c. 51, § 1, reads: —
"On or after the fifth day from the filing of notice of intention of mar-
riage, except as otherwise provided, but not in any event later than six
P.D. 12. 89
months after such fihng, 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 deliv-
ered 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 sooner used, it shall be returned to the office issuing it within six
months after the date when notice of intention of marriage was filed."
It is my opinion that the words "on or after the fifth day from the
filing of notice of intention of marriage . . . but not in any event later
than six months after such filing, the clerk or registrar shall deliver to the
parties a certificate" constitute a general mandatory provision requiring
the clerk or registrar to deliver the certificate on the fifth day, unless
some specific principle of law or the absence of a request operate to re-
lieve him from this duty. The words "but not in any event later than
six months after such filing" do not of themselves, I believe, so operate,
but only provide the maximum period of validity of a certificate.
G. L., c. 4, § 9, reads: —
"Except as otherwise provided, when the day or the last day for the
performance of any act, including the making of any payment or tender
of payment, authorized or required by statute or by contract, falls on
Sunday or a legal holiday, the act may, unless it is specifically authorized
or required to be performed on Sunday or on a legal holiday, be performed
on the next succeeding business day."
It is clear that this section will operate to relieve the clerk or registrar
from the duty of performing the act on the fifth day when it falls on a
Sunday or a legal holiday "unless it is specifically authorized or required
to be performed" on such a day; and I find no such specific authorization
or requirement in the law.
True, G. L., c. 207, § 19, contains the words: "in determining the fifth
day referred to in section twenty-eight, Sundays and holidays shall be
counted." These words, however, do not, in my opinion, constitute a spe-
cific authorization, much less a requirement, that the act be performed on
a Sunday or a holiday; they apply only to the manner of computing the
five-day period, and were in no manner designed to alter the legal sig-
nificance of the fifth day so as to create an obhgation to perform an act
on that day which would not otherwise have existed.
Very truly yours,
Joseph E. Warner, Attorney General.
Voter — Officers of the Navy — Residence.
A naval officer having a residence in the Commonwealth, other than the
United States Navy Yard, for one year, and for six months in a town,
may vote in such town.
May 28, 1930.
His Excellency Frank G. Allen, Governor of the Commonwealth.
Sir: — You have asked my opinion as to "whether or not the officers
in the Navy Yard can vote." I assume that only the matter of residence
is in question, and that these officers have all the other qualifications as
voters which are required in this Commonwealth.
90 P.D. 12.
The residence required is governed by G. L., c. 51, § 1, as amended by
St. 1922, c. 305: —
"Every citizen twenty-one years of age or older, not being a pauper or
person under guardianship, who can read the constitution of the common-
wealth in English and write his name, and who has resided in the com-
monwealth one year and in the city or town where he claims a right to
vote six months last preceding a state, city or town election, and who has
complied with the requirements of this chapter, may have his name en-
tered on the list of voters in such city or town, and may vote therein in
any such election or in any meeting held for the transaction of town
affairs. . . ."
The residence which is required by this statute cannot be acquired
merely by residence of nava^l officers in the Navy Yard.
Some years ago the opinion of the justices of the Supreme Judicial Court
(1 Met. 580) was asked as to the rights and duties of persons residing on
land purchased by, or ceded to, the United States for navy yards, arsenals,
dock yards, forts, lighthouses, hospitals and armories in this Common-
wealth. The question asked was: Are persons so residing entitled to elec-
tive franchise? The justices, in discussing this question, considered it as
intended to apply only to the larger and more important establishments,
such as the Navy Yard at Charlestov/n and the Arsenal in Springfield,
because the answer might be affected by the construction of the different
acts by which jurisdiction had been ceded by the Commonwealth to the
United States. The answer of the justices was: —
"We are also of opinion that persons residing in such territorj^ do not
thereby acquire any elective franchise as inhabitants of the towns in which
such territory is situated."
The reasoning of that opinion is to the effect that, the State having given
consent to the purchase of the territory by the United States, and there
being no other condition or reservation in the act granting such consent
but that of a concurrent jurisdiction of the State for the service of civil
and criminal process, persons residing within said territory did not acquire
the civil or political privileges, nor did they become subject to the civil
duties and obligations, of the town within which such territory was situ-
ated. The principle of law laid down in said opinion has been followed
and that opinion has been cited in several cases. Newcomh v. Rockpo7't,
183 Mass. 74; Beekman v. Hudson River West Shore Ry. Co., 35 Fed. 3;
Ex parte White, 228 Fed. 88; Fort Leavenworth R.R. Co. v. Lowe, 114 U. S.
525; McMahon v. Polk, 10 S. D. 296.
Though the said opinion of the justices was to the effect that persons
residing in the Navy Yard did not thereby acquire any elective franchise,
it may well be that certain naval officers residing in the Navy Yard may
come within the provisions of G. L., c. 51, § 50 (as amended by St. 1929,
c. 128) and § 51, which are as follows: —
"Section 50. Any soldier or sailor in the service of the United States
who had a legal residence in any city or town in the commonwealth at the
time of entering said service, but who by reason of his being in the army
or navy was absent from the city or town during the periods when sessions
for listing or assessing and for registration were held, may appear before
the city or town clerk in any city or town where such clerk is also a mem-
ber of the board of registrars, and, in any other city or town, before the
P.D. 12. 91
chairman of the board of registrars or board performing Uke duties therein,
during the regular office hours of such clerk or chairman and, in accordance
with this chapter, prove his qualifications as a voter under section one
and be registered, if he so appears not less than three days before the elec-
tion; but such registration shall be subject to the revision and acceptance
of the board.
Section 51. To every person registered under the preceding section the
registrars shall issue a certificate, similar to that provided for in section
fifty-nine, entitled 'Supplementary Registration: Soldier or Sailor', and
referring by chapter and section number to this and the preceding sec-
tion. Upon presentation of the certificate to the presiding officer at the
proper polling place, he shall have the same right to vote as any other
registered voter. After he has voted, the presiding officer shall attach
the certificate to the voting list and it shall be considered a part thereof,
and shall be returned to the registrars and preserved in accordance with
law."
If officers in the Navy Yard do in fact come within the provisions of
these sections of G. L., c. 51, they will be entitled to vote upon comply-
ing with the terms set out in said sections.
Furthermore, it is well-settled law that a person in the mihtary or naval
service may establish a residence or domicil at a place apart from that
at which he is stationed. It is also settled that such a person may change
his residence or domicil while in the service. Mooar v. Harvey, 128 Mass.
219; Ex parte White, 228 Fed. 88. If a residence so estabhshed or changed
has been of a duration of one year in the Commonwealth and six months
in the city or town where the naval officer wished to vote, this would be a
compliance with the statute in so far as the provision related to residence.
To sum up, assuming the possession of other qualifications except resi-
dence, I answer your question as follows: —
(a) A naval officer does not acquire the right to vote because of a resi-
dence at the Navy Yard.
(h) A naval officer, if he had a legal residence in any city or town in
the Commonwealth at the time of entering said service, even if by reason
of his being in the Navy he was absent from such city or town during the
periods when sessions for fisting or assessing and for registrations were
held, may vote in accordance with G. L., c. 51, § 50, as amended, and § 51,
upon compliance with the provisions of said sections.
(c) A naval officer, if he has a residence apart from the Navy Yard for
one year in the Commonwealth and for six months in the town where he
wishes to vote, may vote in said town.
Very truly yours,
Joseph E. Warner, Attorney General.
State Police Officer — Duties — Reward.
A State police officer may not accept a reward from the United States
Collector of Customs for information resulting in the arrest of a
violator of a Federal fiquor law.
May 28, 1930.
Gen. Alfred F. Foote, Commissioner of Public Safety.
Dear Sir: — You request my opinion as to whether a State police
officer may accept an award of money which the United States Collector
92 P.D. 12.
of Customs is ready to pay because of information given by such police
officer to Federal officials, which resulted in the seizure by Federal officials
of certain liquor at East Brewster, Massachusetts, for violation of the
customs laws.
G. L., c. 147, § 3, reads as follows: —
"Any officer or inspector of the department who directly or indirectly
receives a reward, gift or gratuity on account of his official services shall
be punished by a fine of not more than one hundred dollars or by imprison-
ment for not more than three months, and shall also be discharged from
office. Any officer or inspector who fails to faithfully perform his duties
shall be immediately discharged from office."
It was seemingly the duty of the State pohce officer, in view of his in-
formation, to take steps to bring about the seizure of this liquor either
under the laws of the Commonwealth or under Federal laws. His failure
to act to bring about the seizure under the laws of the Commonwealth
could be excused only by his reporting his information to the Federal
officials. The report which he made was therefore made in the course of
duty. The acceptance of a reward for making such report would be, in
my opinion, a violation of the statute above quoted.
Yours very truly,
Joseph E. Warner, Attorney General.
State Employees — Veteran — Period of Service.
The time of military service of an employee in the Department of Cor-
rection cannot be added to his time as such employee, so as to bring
his total period of service as such employee up to ten years.
May 29, 1930.
His Excellency Frank G. Allen, Governor of the Commonwealth.
Sir: — You have requested an opinion in relation to a request for a
pension by an employee at the Concord Reformatory. You have sub-
mitted to me statements of facts, and documents relative thereto, pre-
sented by said employee and by the Chairman of the Commission on
Administration and Finance.
The question of law presented by the request and by the facts is simply
this: Has the said employee, a veteran, now incapacitated for active duty,
been in the service of the Commonwealth for a total period of ten years,
within the meaning of G. L., c. 32, § 57, as amended, so as to entitle him
to a pension under the terms of said G. L., c. 32, § 57, as amended?
I am of the opinion, upon the facts stated, that it cannot be said that the
employee has been in the service of the Commonwealth for such a period,
and that therefore he is not now entitled to a pension under G. L., c. 32,
§ 57, as amended by St. 1923, c. 386.
G. L., c. 32, § 57, as amended, reads as follows: —
"A veteran who has been in the service of the commonwealth or of
any county, city, town or district thereof, for a total period of ten years,
may, upon petition to the retiring authority, be retired, in the discretion
of said authority, from active service, at one half the regular rate of
compensation paid to him at the time of retirement, and payable from
the same source, if he is found by said authority to have become inca-
P.D. 12. 93
pacitated for active service; provided, that he has a total income, from
all sources, exclusive of such retirement allowance and of any sum received
from the government of the United States as a pension for war service,
not exceeding five hundred dollars."
The use of the words "for a total period of ten years," in the instant
statute, so differentiates its terms from those of G. L., c. 32, § 52, as to
indicate a legislative intent that the period of service need not be a con-
tinuous period, as was held by the Supreme Judicial Court to have been
the intended meaning of said section 52 with relation to the type of service
described therein (see Gray v. Salem, 258 Mass. 559). Nevertheless,
upon the facts stated, it does not appear that the veteran employee has
been in the service of the Commonwealth, within the meaning of said
G. L., c. 32, § 57, as amended, for even a total period of ten years. It
appears, rather, that said employee has been in such service, upon the
facts stated, at the longest, nine years and five months to the date of
May 15th.
It has been suggested in the correspondence annexed to your com-
munication to me that the period of the military service of said veteran
employee might be added to the said nine years and five months, so that
his period in the service of the Commonwealth might be figured to be ten
years. Such a course does not appear to be within the intent of the Legis-
lature in enacting the appHcable statute.
Said employee, to use his own words, "severed" his "connection with
the State to enter the United States Army June 5, 1917."
A special provision for the benefit of employees who leave the service
for the purpose of entering the Army was enacted by G. L., c. 31, § 27.
It provides for their reinstatement in their former positions. The employee
has had the benefit which he, as a veteran, was given by such provision.
I cannot, however, find that the effect of this statute was intended to
extend beyond the specific relief provided, so as to give to the military
service of an employee of the Commonwealth the additional character
of service of the Commonwealth, under G. L., c. 32, § 57; nor do I find
any other statute which effects this result.
Assuming all the facts laid before me to be as stated, the employee in
question will be entitled to a pension after the lapse of some seven months
from May 15th of this year.
Very truly yours,
Joseph E. Warner, Attorney General.
Securities — Sale on Installments — Security.
Under G. L., c. 174, it is not necessary that a company selling securities
on the installment plan shall provide security to the face value of
such securities.
May 29, 1930.
Hon. Roy A. Hovey, Commissioner of Banks.
Dear Sir : — You have written me, in part, as follows : —
"G. L., c. 174, deals with companies engaged in the business of issuing,
negotiating or selling bonds, certificates or obligations of any kind on the
partial payment or installment plan, and makes certain provisions for
the conduct of their business. Section 1 of the chapter exempts from the
requirements corporations which issue, negotiate or sell bonds, certificates
94 P.D. 12.
or obligations on the partial payment plan when such, at the time of issu-
ance, are secured by adequate property, real or personal.
In order properly to apply a test which determines whether or not a
corporation is subject to the requirements of this chapter, the question
has arisen as to the amount of security necessary to be exempt from,
and to avoid, violating this chapter; that is, whether the face amount of
the bond, certificate or obligation must be secured, or only the current
or net amount of the obligation of the issuing company to the holder."
You have asked my opinion in the following language: —
"We are in doubt as to the construction to be placed on the first sen-
tence of section 1 of chapter 174, and therefore respectfully request your
opinion as to whether it is necessary to secure the face amount of such
certificates sold, or only the net liability or obligation of the issuing com-
pany to the holder."
I answer your inquiry to the effect that it is not necessary, in order to
exempt a corporation from the requirements set forth in the first sentence
of G. L., c. 174, § 1, that the face amount of the certificates to which you
refer should be secured, provided the net liability or obligation of the in-
vestment company to the holder be secured by adequate property, real
or personal.
The investment of a purchaser in a bond or certificate paid for on the
installment plan is, from the very nature of the transaction, less than the
face value which may ultimately become, if he continues his payments,
the company's liability to him. The investor is adequately protected if
at all times the company's net liability to him is secured. To require the
company to provide security covering an amount which may never be
paid, and much of which will of necessity be paid only in the distant
future, would work no reasonable advantage to the investor and would
place so great a burden upon the company as to make the cai*rying on of
the business practically impossible. I do not gather an intention upon
the part of the Legislature to impose such a burden upon the business of
selling bonds and certificates, from the language of the first sentence of
said G. L., c. 174, § 1.
Yours very truly,
Joseph E. Warner, Attorney General.
Teachers' Retirement Law — Substitute Teachers — Vacation Schools.
A retired teacher, though not eligible to re-employment in that capacity,
may be employed as a substitute teacher for less than a full year and
as a teacher in a vacation school.
May 29, 1930.
Dr. Payson Smith, Commissioner of Education.
Dear Sir: — You have asked my opinion upon two questions relative to
the Teachers' Retirement Law.
1. As to substitute teachers. In this connection your letter reads as
follows : —
"It has come to the attention of the Board that in some cases school
committees employ substitute teachers on a per diem basis, the teacher
being appointed to serve for a definite period, in some cases the period of
employment being for three months, six months or a full school year.
P.D. 12. 95
On December 31, 1914, the Retirement Board received an opinion that
the law did not apply to substitute teachers employed on a per diem
basis.
On April 6, 1925, the Board received an opinion that a retired teacher
could not be re-employed as a regular teacher on an annual salary basis
but that he might be employed as a substitute, receiving salary on a per
diem basis.
The Retirement Board is not sure whether these opinions apply only to
short periods of substitute service on a per diem basis, or whether they
also apply to substitutes employed on a per diem basis who are appointed
with the understanding that they are to be regularly employed for sub-
stantial periods, such as three months, six months or a full school year.
If the previous opinions apply only to short periods of substitute service
on a per diem basis, what is the maximum period a teacher may be
appointed to serve without requiring membership, and the maximum
period a retired teacher may be employed on a per diem basis?"
In an opinion of one of my predecessors in office to you, dated Decem-
ber 31, 1914 (IV Op. Atty. Gen. 340), with which I concur, it is held
that the Teachers' Retirement Act of 1913 (St. 1913, c. 832) applied only
to teachers in regular salaried positions, with the single exception, stated
therein, that there are —
"substitute teachers in the Commonwealth who are duly elected as such
by the school boards, whose entire time throughout the school year is
devoted to teaching, and who are paid a regular salary. Substitute teach-
ers of the last-named class are, in my opinion, entitled to participate in
the retirement system, and may, of course, properly become members
of the retirement association. This ruling makes the act apply, as above
stated, only to teachers in regular salaried positions."
The principle enunciated in the above ruling is equally applicable under
the provisions of the present law relating to teachers' retirement, and
establishes that anything less than a full school year under the conditions
stated in your letter is not a long enough period to require membership in
the Teachers' Retirement Association.
You have set forth in the portions of your letter quoted above the
substance of an opinion rendered to you by a former Attorney General
on April 6, 1925 (VII Op. Atty. Gen. 630). I am of the opinion that
although, as held in the opinion of April 6, 1925, a retired teacher may
not be re-employed as a "teacher" but may be employed as a substitute
teacher, yet he may not be employed for a full school year as a substitute
of the class mentioned in the preceding paragraph. I think it is a fair
inference from the words used in G. L., c. 32, § 10, as amended, with rela-
tion to prohibition of re-employment — "retired from service in the public
schools" — not only (as was said in the opinion of April 6, 1925) "that
a teacher so 'retired' shall not be re-employed as a regular teacher on an
annual salary basis," but also that he shall not be re-employed even as a
substitute teacher under conditions such as would subject him to the
provisions of the retirement law.
2. As to retirement at seventy in relation to employment in a summer
school. In this connection your letter reads as follows: —
"The Board also voted to request your opinion as to whether or not a
member whose retirement at the age of seventy is required on August 8,
1930, may voluntarily retire on July 1, 1930, and serve as a regular teacher
93 P.D. 12.
in a summer school conducted by a school committee in Massachusetts
for the period July 7 to August 15, 1930. If this service is not permitted,
may the member defer his retirement until August 8th, when retirement
is required, and continue to serve in the summer school until August
15th?"
I assume that by "summer school," as used by you in the last above-
quoted extract from your letter, you refer to a vacation school, so called,
which falls within the provisions of G. L., c. 71, § 28, which reads: —
"The school committee may establish and maintain schools to be kept
open for the whole or any part of the summer vacation; but attendance
thereon shall not be compulsory or be considered as a part of the school
attendance required by law."
In G. L., c. 32, § 6, with relation to the provisions of said chapter 32
concerning the retirement system for teachers, the word "teacher" is
defined as follows: —
"'Teacher', any teacher, principal, supervisor or superintendent em-
ployed by a school committee or board of trustees in a public day school
in the commonwealth."
The words "pubhc school" are defined in said chapter in the following
manner: —
"'Public school', any day school conducted in the commonwealth
under the superintendence of a duly elected school committee, also any
day school conducted under sections one to twenty-four, inclusive, of
chapter seventy-four."
In a very narrow sense it might be said that the vacation school men-
tioned in said section 28 falls within the definition of "pubhc school" as
given in said section 6. I am of the opinion, however, that, read in the
light of the whole context of the Teachers' Retirement Law, as set forth
in G. L., c. 32, as amended, it was not the intent of the Legislature to
embrace a vacation school within the definition of "pubhc school." The
whole scheme of the teachers' retirement system is built upon the basis
of the normal school year, running from September to June, as applicable
to the teacher in the ordinary public school having such a term, with
the specific exception of teachers in training schools. There is no mode
provided in said chapter 32 by which teachers employed only in such
vacation schools, necessarily serving therein but a very small portion of
the year, could be brought within the designated plan set up in said
chapter 32, section 10, to receive benefits thereunder.
The first statute providing for the establishment of vacation schools,
St. 1899, c. 246, was in existence prior to the enactment of the original
laws creating the said retirement system. Had the Legislature intended
to extend the benefits of the retirement system to teachers in this class
of schools, it is only reasonable to suppose that the system would not have
been so established as to make their incorporation impossible. The fact
that it was so made indicates the legislative intent with which the said
definitions were framed, and it cannot well be said that vacation schools,
or teachers therein, respectively, are included within them.
Therefore, following the principles laid down in the opinion of the then
Attorney General of April 6, 1925, hereinbefore referred to, a teacher
retired under the terms of G. L., c. 32, as amended, may serve in a "vaca-
P.D. 12. 97
tion school"; and this being so, the date of the retirement of such a
teacher, which you refer to in your letter, becomes of no consequence.
Very truly yours,
Joseph E. Warner, Attorney General.
Trial Justice — Justice of the Peace — Expiration of Term.
A trial justice may not continue to perform the duties of his office after
his term has expired and before the appointment of his successor.
June 11, 1930.
His Excellency Frank G. Allen, Governor of the Commonwealth.
Sir: — My opinion is requested on the following question of law: —
"The term of office of the trial justice of Ludlow, Massachusetts,
expired on June 8, 1930. G. L., c. 219, § 4, provides, in part, that 'a trial
justice shall hold his office for three years from the time of his designation,
unless during that period he ceases to hold a commission as justice of the
peace or unless such designation and commission as trial justice is revoked.'
Is the trial justice authorized to continue to perform all the duties of
his office after his term has expired and until he has been renamed or his
successor has been appointed and qualified?"
I am of the opinion that a trial justice is not authorized to continue to
perform the duties of a trial justice after his term has expired, with the
exception of completing unfinished business already before him, which is
specifically provided for by G. L., c. 219, § 13. After his commission has
expired by lapse of time his powers do not continue to exist, pending his
reappointment or the appointment of his successor.
The history of the creation and existence of trial justices in Massachu-
setts indicates that they are in reality merely justices of the peace who are
in effect specially designated by the Governor to perform certain func-
tions by way of trying certain cases, and that there is no trial justice who
is a public officer, within the meaning of those words as used in G. L.,
c. 30, § 8.
It was pointed out by the Supreme Judicial Court in the case of Mead
V. Boivker, 168 Mass. 234, 235, that —
"trial justices are simply justices of the peace designated and commis-
sioned to try cases."
And in Maloney v. Piper, 105 Mass. 233, 234, the same court said: —
"By the existing statutes of the Commonwealth, all justices of the
peace have civil jurisdiction, and a certain number of them are designated
and commissioned to try criminal cases, and are styled trial justices."
It follows, then, that when the commission of a justice of the peace,
which has been given to him by the Governor to designate him as a trial
justice, expires, his authority to act in such a capacity is at an end.
Very truly yours,
Joseph E. Warner, Attorney General.
98 P.D. 12.
Extradition — Defective Delinquent — Parole.
A defective delinquent may be extradited upon the original complaint,
if not finally disposed of, though paroled by a State department to
which he has been committed.
June 11, 1930.
Dr. A. Warren Stearns, Commissioner of Correction.
Dear Sir: — You have asked my opinion as to the legality of extra-
diting persons paroled from the departments for defective delinquents
who have left the Commonwealth and whose recall has been ordered by
the Board of Parole.
U. S. Const., art. IV, § 2, provides, in part, as follows: —
"A person charged in any state with treason, felony, or other crime,
who shall flee from justice, and be found in another state, shall on demand
of the executive authority of the state from which he fled, be delivered
up to be removed to the state having jurisdiction of the crime."
G. L., c. 123, § 113, as amended by St. 1928, c. 333, provides as follows: —
"At any time prior to the final disposition of a case in which the court
might commit an offender to the state prison, the reformatory for women,
any jail or house of correction, the Massachusetts reformatory, the state
farm, the industrial school for boys, the industrial school for girls, the
Lyman school, any county training school, or to the custody of the depart-
ment of public welfare, for any offence not punishable by death or im-
prisonment for life, a district attorney, probation officer or officer of the
department of correction, public welfare or mental diseases may file in
court an application for the commitment of the defendant in such a case
to a department for defective delinquents established under sections
one hundred and seventeen and one hundred and twenty-four, or to a
department for the care and treatment of drug addicts, established by
the governor and council under authority of said sections. On the filing
of such an application the court may continue the original case from
time to time to await disposition thereof. If, on a hearing on an applica-
tion for commitment as a defective delinquent, the court finds the defend-
ant to be mentally defective and, after examination into his record,
character and personality, that he has shown himself to be an habitual
delinquent or shows tendencies towards becoming such and that such a
delinquency is or may become a menace to the public, and that he is not
a proper subject for the schools for the feeble-minded or for commitment
as an insane person, the court shall make and record a finding to the
effect that the defendant is a defective delinquent and may commit him
to such a department for defective delinquents according to his age and
sex, as hereinafter provided. If, on a hearing on an application for com-
mitment as a drug addict, it appears that the defendant is addicted to
the intemperate use of stimulants or narcotics, the court may commit
him to a department for the care and treatment of drug addicts if and when
such a department is provided."
Any defective dehnquent who, prior to his or her commitment to a
State department for defective delinquents, was before a court charged
with the commission of a crime, which charge was not finally disposed of,
may, if he or she has left the Commonwealth while on parole from such
P.D. 12. 99
a department, be asked for from another jurisdiction on extradition or
rendition proceedings after a recall from such parole has been ordered.
A request for such extradition or rendition must be based on the original
charge of the commission of a crime and not upon the commitment as a
defective dehnquent.
Very truly yours,
Joseph E. Warner, Attorney General.
Teachers' Retirement Law — Assessments — Pensions.
A part-time teacher in the service prior to 1925, who becomes a full-time
teacher in 1929, may become a member of the Retirement Associa-
tion by paying such assessments as she would have paid had she
become a member in 1914, and may be considered to have had five
consecutive years of service prior to retiring in 1930.
June 16, 1930.
Dr. Payson Smith, Commissioner of Education.
Dear Sir: — You have asked my opinion on the following questions: —
1. A teacher was regularly employed on a part-time basis from Septem-
ber, 1901, to July, 1929, and on a full-time basis from September, 1929,
to the present time. She is now sixty-two years old, and, having never
joined the Retirement Association, is desirous of joining in order to re-
ceive the benefits of the retirement fund. For what periods of service
must assessments be paid by the teacher, under section 7 (3) of the retire-
ment law, in order that she may be enrolled as a member of the Retire-
ment Association?
G. L., c. 32, § 7 (3), as amended by St. 1924, c. 263, § 1, and St. 1927,
c. 173, reads as follows: —
"Any teacher who entered the service of the public schools- before
July first, nineteen hundred and fourteen, who has not become a member
of the association, may hereafter, before attaining the age of seventy,
upon written application to the board, become a member of the associa-
tion by paying an amount equal to the total assessments, together with
regular interest thereon, which he would have paid if he had joined the
association on September thirtieth, nineteen hundred and fourteen. Such
a teacher may make appHcation for membership and accumulate in the
annuity fund in instalments, in accordance with such rules as the board
shall adopt, the amount due to join the association, he being enrolled a
member of the association when the total amount due on account of back
assessments and interest has been accumulated in the annuity fund; pro-
vided, that all instalments must be paid before the teacher is sixty years
of age. Until the full amount required for membership has been accumu-
lated, a teacher may at any time discontinue payments and withdraw his
total contributions with the regular interest thereon. If a teacher dies
before said full amount has been accumulated, his total contributions, with
regular interest thereon, shall be paid to the person or persons entitled,
as if constituting a sum due a deceased member, in accordance with
section thirty-three."
On March 29, 1915, the Attorney General ruled, in an opinion (not
published), that part-time teachers were subject to the provisions of the
100 P.D. 12.
retirement law. By St. 1925, c. 228, the definition of "teacher" was
changed so as to exclude part-time teachers from the operation of the
retirement law, and only full-time teachers are included since that act.
This act, however, had the important quahfication that it should not
"affect the rights of any person then enrolled as a member of the state
teachers' retirement association."
From the application of G. L., c. 32, § 7 (3), as amended, and the
opinion of the Attorney General above referred to we see that this teacher,
although a part-time teacher, can join the Teachers' Retirement Associ-
ation by paying an amount equal to the total of assessments, together
with interest thereon, which she would have paid had she joined the
association on September 30, 1914.
The only difficulty now is, does the operation of St. 1925, c. 228, pre-
clude the association from levying assessments from September 1, 1925,
until September, 1929, when she became a full-time teacher. If she had
joined the association on September 30, 1914, the fact that she was only
a part-time teacher would not have compelled her to cease from belong-
ing to the association when St. 1925, c. 228, became effective, for by the
terms of that act persons already members of the association could con-
tinue as members, although only as part-time teachers. Therefore, since
G. L., c. 32, § 7 (3), especially provides that any teacher may join the
association by paying such assessments, together with interest, as she
would have paid had she joined on September 30, 1914, the assessments
must be levied to include the period between September 1, 1925, and
September 1, 1929. If she had joined on September 30, 1914, St. 1925,
c. 228, would have had no effect, and it is my opinion that by the wording
of G. L., c. 32, § 7 (3), the fact that she joins now makes no difference.
2. Your next question is: Should this teacher, now a full-time teacher,
after joining the association and then retiring receive a pension as pro-
vided by G. L., c. 32, § 10 (4), or should she be considered to have had
five consecutive years of service preceding retirement and be entitled
to receive a pension computed under paragraph 5 of said section?
G. L., c. 32, § 10, (4) and (5), are as follows: —
" (4) Any member receiving payments of an annuity as provided in
paragraph (3) of this section, if not rendered ineligible therefor by section
fifteen, shall receive with each quarterly payment of his annuity an amount
from the pension fund, as directed by the board, equal to the quarterly
annuity payment to which he would be entitled if his annuity were figured
under clause (a) of paragraph (3) of this section.
(5) Any member who served as a regular teacher in the public schools
prior to July first, nineteen hundred and fourteen, and who has served
fifteen years or more in the public schools, not less than five of which shall
immediately precede retirement, on retiring as provided in paragraph
(1) or (2) of this section, shall be entitled to receive a retirement allow-
ance as follows: (a) such annuity and pension as may be due under para-
graphs (3) and (4) of this section; (b) an additional pension to such an
amount that the sum of this additional pension and the pension provided
in paragraph (4) of this section shall equal the pension to which he would
have been entitled under sections seven to nineteen, inclusive, if he had
paid thirty assessments based on his average yearly rate of salary for the
five years immediately preceding his retirement, at the rate of assessment
in effect at that time, and his account had been annually credited with
interest at the rate of four per cent per annum; . . ."
P.D. 12. 101
In my opinion, the ruling on the first question answers this; that is,
if assessments are levied for the period from September, 1925, down to
date, she must be assumed to have been a member of the association for
those five years, for all purposes.
Very truly yours,
Joseph E. Warner, Attorney General.
Municipality — City — Date of Establishment.
The date of acceptance by the voters of an act for the estabhshment of
a city is the date of such establishment.
June 19, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You ask my opinion as to what date is to be considered
the legal date of incorporation of a city, and you suggest that "there seem
to be three distinct dates under consideration in this question, as follows:
(1) The date of the approval of the act of the Legislature; (2) the date of
the acceptance of the act by the voters; and (3) the date when the new
form of government commences operation after acceptance by the voters."
As a matter of strict legal interpretation, the Legislature cannot and
does not incorporate cities, notwithstanding the use of the term "incor-
porate" in the titles to some legislative acts establishing cities and of the
term "charter" in legislative enactments and in the decisions of the courts
relating to matters affecting the several cities in the Commonwealth.
Mass. Const. Amend. II authorizes the General Court to "erect or con-
stitute municipal or city governments, in any corporate town or towns
in this commonwealth."
In an illuminating discussion of article II of the Amendments to the
Constitution the Supreme Judicial Court, in Hill v. Boston, 122 Mass. 344,
354, said: —
"The article does not speak of granting charters or acts of incorpora-
tion, but of 'erecting and constituting municipal or city governments;'
by the words 'in any corporate town or towns,' it clearly shows that the
towns are already corporations; and the powers and privileges to be
granted are such 'as the General Court shall deem necessary or expedient
for the regulation and government ' of the inhabitants. The article through-
out shows that the establishment of a city is deemed to be an act done
by the Legislature for the convenient and efficient administration of local
government, and not for the purpose of conferring any peculiar benefit
on the municipality or its inhabitants."
The word "incorporate," as used in connection with cities in this Com-
monwealth, must be construed to mean "erect," "constitute," or "estab-
lish." See titles to earlier acts establishing cities in this Commonwealth,
namely, — Boston (St. 1822, c. 110); Salem (St. 1836, c. 42); Roxbury
(St. 1846, c. 95) ; Cambridge (St. 1846, c. 109) ; New Bedford (St. 1847,
c. 60); and Worcester (St. 1848, c. 2).
I therefore advise you that the cities of the Commonwealth were never
incorporated as such, but were constituted or established cities for the
"convenient and efficient administration" of their local governments.
In direct reply to your communication, I am of the opinion that "the
date of acceptance of the act by the voters" is the legal date of the estab-
102 P.D. 12.
lishment of a city unless the General Court has clearly provided otherwise
in the legislative act authorizing the establishment of such city.
The General Court cannot constitutionally establish a city "unless it
be with the consent, and upon the application of a majority of the in-
habitants of such town, present and voting thereon, pursuant to a vote at
a meeting duly warned and holden for that purpose." (Mass. Const.
Amend. II.) See discussion in Attorney General v. Methuen, 236 Mass.
564. A legislative act passed for such purpose creates a plan for a new mode
of municipal administration in a town. Such act cannot become effective
until and unless a majority of the qualified voters of the town have given
their "consent" at the time and in the manner prescribed in said act.
Pending the adoption of the act establishing a city, the political status
quo of the town remains in force. Durant v. Lawrence, 1 Allen, 125.
The manner in which the affairs of the municipality are to be carried
on subsequent to the adoption of the new plan of municipal government
is provided in the act. In the "Act Establishing the City of Boston"
(St. 1822, c. 110) provision was made that all persons holding town office
at the time of the passage of the act should hold their offices until such
act went into effect and their successors were chosen and qualified. Sub-
sequent acts establishing other cities contained provisions. The act estab-
lishing the City of Gardner (St. 1921, c. 119), one of the most recent en-
actments of this nature, provided in section 2 that the "selectmen . . .
shall in general have the powers and perform the duties of the board of
aldermen in cities under the General Laws, . . . and the town clerk shall
perform the duties therein assigned to city clerks." It clearly appears
that it was the intent of the Legislature, in passing each of the acts men-
tioned above, that when the inhabitants of those towns had given their
"consent" to a change in the mode of municipal administration they im-
mediately thereafter became cities; and that the town officers holding
office at the time the change was made would, until the new system of
municipal administration was inaugurated, be city officials, pro tempore.
Yours very truly,
Joseph E. Warner, Attorney General.
Statute — Approval — Effective Date.
A statute, not an emergency law, excluded from the referendum takes
effect on the thirtieth day next after the day on which it is approved.
June 19, 1930.
Hon. Frank E. Lyman, Commissioner of Public Works.
Dear Sir: — You have asked my opinion upon the following question
of law : —
"Will you please inform the Department if St. 1930, c. 406, which places
the maintenance of the New Bedford-Fairhaven bridge on this Depart-
ment, is effective within thirty or ninety days from its passage?"
G. L. c. 4, § 1, provides as follows: —
"A statute enacted by the general court which is not subject to a refer-
endum petition shall take effect throughout the commonwealth, unless
it is otherwise expressly provided therein, on the thirtieth day next after
the day on which it is approved by the governor, or is otherwise passed
P.D. 12. 103
and approved, or has the force of law, conformably to the constitution.
An act declared to be an emergency law shall, unless otherwise provided
therein, take effect upon its passage."
The statute which you have called to my attention may not, in my
opinion, be made the subject of a referendum petition, since its provisions
fall within the matters specifically excluded from the scope of referendum
petitions by Mass. Const. Amend. XLVIII, The Referendum, III, inas-
much as its operation is restricted to "particular districts or localities of
the commonwealth," as those words are used in said amendment. The
applicable part of said amendment reads : —
"Section 2. Excluded Matters. — No law that relates to rehgion,
religious practices or religious institutions; or to the appointment, quali-
fication, tenure, removal or compensation of judges; or to the powers,
creation or abolition of courts; or the operation of which is restricted to a
particular town, city or other political division or to -particular districts or
localities of the commonwealth; or that appropriates money for the current
or ordinary expenses of the commonwealth or for any of its departments,
boards, commissions or institutions shall be the subject of a referendum
petition."
The instant law, St. 1930, c. 406, relates to the particular district or
locality between New Bedford and Fairhaven, and to so much only thereof
as constitutes the bridge over the Acushnet River.
This act has not been declared to be an emergency law and it is not ex-
pressly provided therein that it shall take effect at any other time than
the thirtieth day next after the day on which it is approved by the Gover-
nor, or is otherwise passed and approved, or has the force of law.
It follows then, from the provisions^of G. L. e. 4, § 1, that said St. 1930,
c. 406, which appears to have been ap'proved by the Governor on May 28,
1930, takes effect on the thirtieth day next after said May 28, 1930.
Very truly yours,
Joseph E. Warner, Attorney General.
Ways — Motor Vehicles — Pedestrians.
A pedestrian has a right to travel on the highways equal to that of the
operator of a motor vehicle.
June 26, 1930.
Governor's Committee on Street and Highway Safety.
Gentlemen : — For your guidance I desire to call your attention to
the case of Emery v. Miller, 231 Mass. 243, in which case two pedestrians
were walking to the left of the middle of a State highway and were struck
by an automobile, which in this instance came from behind them. The
court said that the pedestrians "had an indubitable right to be travelling
where they were."
It is a general principle of law in this Commonwealth, as laid down in
numerous decisions, that the pedestrian has a right to travel on the high-
ways of the Commonwealth equal to that of the operator of a motor
vehicle, but that, like the operator, he must use a reasonable degree of
care for his own safety and that of others.
The general principle applicable to pedestrians in the use of the high-
ways was laid down in Hennessey v. Taylor, 189 Mass. 583, and this has
been followed in a number of other cases. In each instance the pedes-
104 P.D. 12.
trian is required to use a reasonable degree of care for his own safety, but
under ordinary circumstances, where pecuhar facts do not exist which
require another mode of conduct, it cannot be said that a pedestrian is
neghgent merely because he is walking on the left side of the road as he is
proceeding.
Yours very truly,
Joseph E. Warner, Attorney General.
Voter — Party Enrollment — City Clerk.
A voter who is not enrolled in any political party may not have an en-
rollment established by appearance before a city or town clerk after
the primaries.
June 26, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You have asked my opinion whether, under the provi-
sions of G. L., c. 53, § 38, as amended by St. 1927, c. 110, a voter who is
not enrolled in any political party may appear in person before the city
or town clerk and have his enrollment established.
G. L., c. 53, § 38, as amended by St. 1927, c. 110, reads as follows: —
"No voter enrolled at a primary shall be allowed to receive the ballot
of any political party except that with which he is so enrolled; but he
may establish, change or cancel his enrolment by appearing in person
before the city or town clerk and requesting in writing to have his enrol-
ment changed to another party, or canceled, and such change or cancel-
lation shall take effect at the expiration of thirty days thereafter. No
voter enrolled as a member of one political party shall be allowed to re-
ceive the ballot of any other political party, upon a claim by him of ero-
neous enrolment, except upon a certificate of such error from the regis-
trars, which shall be presented to the presiding officer of the primary and
preserved as part of the records of such primary; but the political party
enrolment of a voter shall not preclude him from receiving at a city or
town primar}^ the ballot of any municipal party, though in no one primary
shall he receive more than one party ballot."
St. 1913, c. 835, § 111, contained substantially the same provisions as
G. L., c. 53. § 38. These provisions were repealed by St. 1914, c. 790, § 8,
which provides that the names of candidates for nomination of all political
parties be placed upon the same ballot, and that no party designations
appear upon the voting lists. Gen. St. 1916, c. 179, § 8, repealed St. 1914,
c. 790, § 8, and substantially re-enacted the provisions of St. 1-913, c. 835,
§ 111. The provisions of the present section are substantially the same
as Gen. St. 1916, c. 179, § 8.
In my opinion, the provisions of G. L., c. 53, § 38, as amended by St.
1927, c. 110, are not apphcable to a voter who has not already enrolled in
any political party. Provisions for the enrollment in a political party
of such a voter are set forth in G. L., c. 53, § 37, as amended. G. L.,
c. 53, § 38, as amended, provides that "he may establish, change or cancel
his enrolment by appearing in person before the city or town clerk and
requesting in writing to have his enrolment changed to another party or
canceled." The pronoun "he," in this sentence, refers only to a "voter
enrolled at a primary" under the provisions of G. L., c. 53, § 37, as
P.D. 12. 105
amended. The method of avaihng one's self of the provisions of G. L.,
c. 53, § 38, as amended, is by a request "in writing to have his enrohnent
changed to another party or canceled." Inasmuch as the request in writ-
ing, provided for in said section 38, relates only to a "change or cancella-
tion" of a party enrollment, the city or town clerk may not, under the
provisions of this section, "establish" a party enrollment which is other
than a "change or cancellation" of an existing party enrollment.
Yours very truly,
Joseph E. Warner, Attorney General.
Local Board of Health — Rules and Regulations — Penalties.
Where a penalty has been established by the Legislature, a local board
of health may not set up another by rules and regulations.
July 11, 1930.
Dr. George H. Bigelow, Commissioner of Public Health.
Dear Sir: — You have requested my opinion upon the following
questions in connection with rules and regulations of local boards of
health : —
"1. Under what statute should rules and regulations of a local board
of health be established?
2. Can a board of health fix a penalty for violation of its rules and
regulations?
3. If so, is it necessary for a board of health to fix a penalty in its
regulations?
4. If so, under what statute should the penalty covering the trans-
portation of garbage, for instance, be made?"
I.
You have stated in your letter: "The question has arisen as to the
authority of local boards of health to fix penalties for violation of their
rules and regulations."
In so far as your first three questions i-elate to the general subject as
above set forth in your letter, they are of such a character that I should
not attempt to answer them categorically.
For your guidance it is suggested with relation to your first question,
in its general aspect: G. L., c. Ill, as amended, contains several provi-
sions under which rules and regulations may be established by local boards
of health, and such rules and regulations may be so established under
any other statute, if such there be, which authorizes such action.
As to your second question in its general aspect: A board of health
may fix a penalty for violation of such of its rules and regulations as have
not already a penalty established for their violation by the Legislature,
provided power to establish a penalty, in the absence of the establishment
of one by the Legislature, has been authorized by some statutory provision.
As to your third question in its general aspect: It is obvious that if
a penalty is desired and there is no penalty prescribed by statute and a
local board of health is authorized to establish a penalty, it might be
well to do so, and it might be said that such action would be "necessary"
if the enforcement of a penalty by criminal procedure to secure punish-
ment of an ofiender were desired.
106 P.D. 12.
II.
You also state in your letter: "The particular question in point is in
connection with the transportation of garbage through one of the towns. '^
Treating your four questions as applicable to the particular subject
which you point out, I advise you as follows: —
G. L., c. Ill, § 31, as amended by St. 1924, c. 180, and § 31A, as added
by St. 1921, c. 358, § 1, read as follows: —
"Section 31. Boards of health may make reasonable health regula-
tions. All regulations made by boards of health under this chapter shall
be published once in a newspaper published in the town, and such publi-
cation shall be notice to all persons.
Section 31 A. Any person may remove or transport garbage, offal or
other offensive substances through the streets; provided that he shall
first register with the local board of health, the fee for which registration
shall not exceed two dollars; and provided, further, that he shall remove
and transport the material herein mentioned in accordance with such
reasonable rules and regulations as may be estabhshed by the said board."
Section 31 A is not a licensing law. It provides only for registration of
any person who removes or transports garbage, etc. It contains the
provision that such person shall "remove and transport the material
... in accordance with such reasonable rules and regulations as may
be established by the said board." No specific authority is given to boards
of health to make rules and regulations, with penalties, under section 31
or section 31 A, nor does section 31 A purport to give any additional power
to make rules and regulations relative to the removal and transportation
of garbage, etc., beyond those already possessed by such boards. Prior
to the enactment of said section 31 A boards of health had authority to
make rules and regulations concerning the removal and transportation of
garbage as sources of filth and causes of sickness, and there is no reason
to say that they have lost such authority by the enactment of section 31,
as amended, and section 31 A. See Wheeler v. Boston, 233 Mass. 275;
Lexington v. Miskell, 260 Mass. 544; Swansea v. Pivo, 265 Mass. 520;
VI Op. Atty. Gen. 280.
G. L., c. Ill, § 122, provides: —
"The board of health shall examine into all nuisances, sources of filth
and causes of sickness within its town, or on board of vessels within the
harbor of such town, which may, in its opinion, be injurious to the pubhc
health, shall destroy, remove or prevent the same as the case may require,
and shall make regulations for the public health and safety relative thereto
and to articles capable of containing or conveying infection or contagion
or of creating sickness brought into or conveyed from the town or into or
from any vessel. Whoever violates any such regulation shall forfeit not
more than one hundred dollars."
If rules and regulations for the public health and safety, relative to the
removal and transportation of garbage, be made under said section 122,
those rules and regulations must be observed by one who has been regis-
tered under the provisions of section 31, and for a violation thereof a
penalty has been established in said section 122 by the General Court.
Since such penalty has been so established for the violation of such rules
and regulations, no other one may be made by a local board of health.
P.D. 12. 107
As was said by the Supreme Judicial Court in Southhorough v. Boston &
Worcester St. Ry. Co., 250 Mass. 234, —
"When the Legislature has covered the whole subject there is no room
for the exercise of authority by local officers."
In my opinion, appropriate action may be commenced by a local board
of health for the recovery of the forfeiture provided for in G. L., c. Ill,
§ 122, in the event of a violation of a rule or regulation adopted by it
thereunder dealing with the subject of removal or transportation of
garbage (see Commonwealth v. E. E. Wilson Co., 241 Mass. 406).
Very truly yours,
Joseph E. Warner, Attorney General.
Great Pond — Fishing — Licenses.
A license for fishing must be obtained by one who desires to exercise
his right of fishing in a pond other than a great pond.
July 11, 1930.
Hon. William A. L. Bazeley, Commissioner of Conservation.
Dear Sir: — You request my opinion as to whether a person fishing
in a pond other than a great pond, with the consent of a riparian owner,
requires a license.
G. L., c. 131, § 5 (St. 1930, c. 393, § 2), requires a Hcense for fishing
"in any of the inland waters of the commonwealth." Section 44 provides
that "the riparian proprietors of any pond, other than a great pond, and
the proprietors of any pond or parts of a pond created by artificial flowing,
shall have exclusive control of the fisheries therein." "Great pond" is
defined in section 1 as "a natural pond the area of which is twenty acres
or more."
In my opinion, a license is required in the case you refer to. The words
"waters of the commonwealth," in section 5, are not to be construed as
applying only to great ponds of twenty acres or more. The natural mean-
ing of these words is not changed by the provisions of section 44. The
words "exclusive control," in section 44, refer to the right to exclude the
public; they do not confer upon the riparian proprietors the right to
permit fishing without a hcense. See VI Op. Attjr. Gen. 430; VII Op.
Atty. Gen. 608. (I assume that your question does not relate to a person
catching fish artificially propagated, or to a person owning land bordering
on the pond and used for agricultural purposes within the exception stated
in section 5.)
You also request my opinion as to whether a person such as described
in your previous question must comply with all laws relating to open sea-
son, number of fish to be taken, and size of fish. In mj^ opinion, such
laws must be complied with. I assume that there is no provision in any
of the laws to which you refer which limits their application. The phrase
"waters of the commonwealth" seems to be commonly used in such laws.
See VII Op. Atty. Gen. 608.
You also request my opinion as to whether the requirements as to
licenses, seasons, etc., apply to fishing upon ponds controlled by munici-
palities for water supplies, and where fishing is permitted. I answer this
question also in the affirmative. Such ponds are, in my opinion, "waters
108 P.D. 12.
of the commonwealth," within the meaning of that phrase as used in the
statutes in question.
You also request my opinion as to whether, where the Commonwealth,
county or town owns land bordering upon a pond other than a great pond,
the public may fish in such pond; and if so, whether the public is confined
to fishing from the shores of such publicly owned land, or may fish upon
any part of the pond, gaining access through such public land. In my
opinion, the public may fish on such a pond and on any part of it, assuming
that the owners of other lands bordering on the pond have not obtained
exclusive property by making a payment to the public in accordance with
the provisions of section 46, which state that "a pond other than a great
pond, bounded in part by land belonging to the commonwealth or to a
county, city or town, shall become the exclusive property of the other
proprietors as to the fisheries therein only upon payment to the state
treasurer, or to the county, city or town treasurer, as the case may be, of a
just compensation for their respective rights therein, to be determined by
three arbitrators."
Very truly yours,
Joseph E. Warner, Attorney General.
Retirement System — Pensioners of a City — Employment.
A legislative commission, half of whose expenses are to be paid by a city,
mav not employ a person who receives a pension from such city,
under G. L., c. 32, § 91.
July 14, 1930.
Hon. Nathaniel P. Sowle, Chairman, Special Commission Appointed
under Chapter 29 of the Resolves of 1930 and Chapter 4.8 of the Resolves
of 1929.
Dear Sir : — You have submitted the following question to me : —
"Can this Commis.sion legally employ and pay with funds of the Com-
monwealth, as authorized by the creative act, an engineer who has been
retired by the city of Boston and who receives a pension from said city?"
By said chapter 29 of the Resolves of 1930 your Commission, among
other matters, is authorized to —
"employ such engineers, experts and others as it may deem necessary,
and may expend for the purposes of this resolve such sum, not exceeding
two thousand dollars, as may be appropriated by the general court, in
addition to the unexpended balance of the amount appropriated for such
investigation by item six hundred and fifty-six h of chapter three hundred
and eighty-six of the acts of nineteen hundred and twenty-nine."
It is also provided, however, in said resolve as follows: —
"The city of Boston shall reimburse the commonwealth for one half
of the expense incurred under said appropriations."
With relation to a former employee of the city of Boston who is drawing
a pension from said city, such as the engineer referred to in your ques-
tion (and I assume that said engineer has received the first payment
upon his pension), G. L., c. 32, § 91, prohibits his receiving from said city
any pajTnent for service rendered to the city. G. L., c. 32, § 91, reads: —
P.D. 12. 109
"No person while receiving a pension or an annuity from the com-
monwealth, or from any county, city or town, except teachers who on
March thirty-first, nineteen hundred and sixteen, were receiving annui-
ties not exceeding one hundred and eighty dollars per annum, shall, after
the date of the first payment of such annuity or pension, be paid for any
service rendered to the commonwealth, county, city or town which pays
such pension or annuity, except for jury service or for service rendered
in an emergency under section sixty-eight, sixty-nine or eighty-three, or
for service in a public office to which he has been elected by the direct
vote of the people."
In view of the fact that the work which the Commission is to do under
the provisions of said resolves is obviously intended to be of benefit both
to the Commonwealth and to the city of Boston, and that the expenses
thereof are directed by the Legislature to be paid in equal parts by the
city and the Commonwealth, it would require a very strained construction
of said chapter 29 of the Resolves of 1930 to enable one to hold that a
former employee of the cit}^, although directly employed by 3^our Com-
mission, was not, while in such employment, rendering service to the city,
more especially as it would seem that one-half his compensation may be
required to be paid by the city.
G. L., c. 32, § 91, is a law of general application as regards its subject
matter, and in substance had been on our statute books for many years
before the passage of either of said resolves; and it is not reasonable to
believe that in passing the said resolves the Legislature was not mindful
of the said law, or intended to change its general terms by implication to
be made under an actually narrow interpretation of the terms of the
said resolves.
I am of the opinion that the employment by your Commission of the
retired, pensioned city employee to whom you refer in your communica-
tion is not one which you can lawfully make.
Very truly yours,
Joseph E. Warner, Attorney General.
Lord's Day — Sports — Amusements — License.
Miniature golf courses, golf ranges, airports and pony rides, to be oper-
ated on Sunday, are not to be hcensed under the Sunday Sports
Law, but, when operated on the Lord's Day, must be licensed as
"public entertainment," under G. L., c. 136, § 4.
July 28, 1930. '
Gen. Alfred F. Foote, Commissioner of Public Safety.
Dear Sir : — You request my opinion as to whether licenses under
G. L., c. 136, § 4 (as amended), are required for conducting on Sunday
certain amusement enterprises, which may be described as miniature
golf courses, golf driving ranges, airports and pony rides. The proprietors
of these establishments invite the public, upon pajmient of an admission
fee, to participate in the form of amusement provided.
The question is whether, if licensed, these activities are to be licensed
under section 4 of G. L., c. 136, or under the so-called Sunday Sports Law,
St. 1928, c. 406 (G. L., c. 136, §§ 21 et seq.).
Section 4 of G. L., c. 136, provides for licensing the conduct of any
"public entertainment" after one o'clock in the afternoon on Sunday,
110 P.D. 12.
provided the mayor of a city or the selectmen of a town and the Com-
missioner of Pubhc Safety find that such entertainment is in keeping with
the character of the day.
St. 1928, c. 406, makes it lawful (in cities and towns which have accepted
the act) to take part in or witness any "athletic outdoor sport or game"
on Sunday between two and six o'clock in the afternoon, provided a license
for the conduct of such sport or game is obtained from a city council,
with the approval of the mayor, or from the selectmen of towns. Ad-
mission fees may be charged.
In my opinion, the activities to which you refer are not of the class
embraced in the act of 1928. (See also St. 1920, c. 240; G. L., c. 136,
§§ 21 e^ seq.) They lack the element of contest, which I think is involved
in the words used in the act of 1928. In any event, to construe this act
as applicable would involve, in my opinion, an unnatural use of language,
and would achieve a result which was not intended. The enterprises
named in your question, therefore, cannot be conducted unless their
proprietors are entitled to obtain, and do obtain, licenses for conducting
them as ''public entertainment," under section 4 of G. L., c. 136.
Very truly yours,
Joseph E. Warner, Attorney General.
Insurance — Service Contract — Medical Service.
A contract to provide medical service for a given period, to a stated maxi-
mum amount in value, is a contract of service, not of insurance.
Sept. 8, 1930.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir : — You have requested my opinion as to whether a certain
contract of the Universal Medical Fund Company, wherein the contract
holder is to be provided by the company with medical service, is a con-
tract of insurance.
The definition of an insurance contract is given by G. L., c. 175, § 2,
as follows: —
"A contract of insurance is an agreement by which one party for a
consideration promises to pay money or its equivalent, or to do an act
valuable to the insured, upon the destruction, loss or injury of something
in which the other party has an interest."
It is to be noted that in the contract we are considering, in accordance
with the exact wording of this contract, the contract holder "is to be
provided by the Company with medical service not to exceed in amount
. . . SIOO.OO per annum, during the continuance of this Certificate."
It has long been accepted that a company may agree, for a considera-
tion, to furnish services for a definite period in the future. Such a con-
tract has been considered to be a contract of service rather than of in-
surance. There are opinions of several of my predecessors to that elfect.
See I Op. Atty. Gen. 544; II Op. Atty. Gen. 226; V Op. Atty. Gen. 206.
Your letter, however, states: —
"Under this contract the holder is entitled to be treated by any physi-
cian whom he may select and the corporation will reimburse him for the
cost thereof up to an amount not exceeding $100. per annum."
P.D. 12. Ill
Such an agreement as described by this statement is not an agreement
to furnish services, but, rather, one to reimburse the contract holder for
certain charges wliich he may be obhged to pay, and would be a con-
tract of insurance. I do not find any such provision for reimbursement
in the copy of the contract submitted. In this contract the provision is
for the furnishing of medical services.
I am therefore of the opinion that this contract is not a contract of
insurance, but, rather, a contract of service.
Very truly yours,
Joseph E. Warner, Attorney General.
Question of Public Policy — Submission to Voters.
A question as to instructions to a representative, relative to unemploy-
ment insurance, is a question of "pubhc policy."
Sept. 10, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You request me to consider an application for submis-
sion to the voters of the Si.xth Bristol Representative District at the next
State election of the following question of instructions to the representa-
tive from said district : —
"Shall the representative from this district be instructed to vote in
favor of part pay for the unemployed through a system of unemployment
insurance?"
Under the provisions of St. 1925, c. 97, you request me to determine
whether or not the aforesaid question is one of public policy.
I hereby determine that the said question is one of public policy.
Ver}^ truly yours,
Joseph E. Warner, Attorney General.
Question of Public Policy — Submission to Voters.
A question as to instructions to a representative relative to a legislative
request to the President and the United States Senate, relating to
the League of Nations, is one of "public pohcy."
Sept. 10, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You request me to consider an application for submis-
sion to the voters of the Twenty-first Middlesex Representative District
of the following question of instructions to the representative from said
district : —
"Shall Maiden's representative in the General Court be instructed to
vote to request the President and the United States Senate to enter into
full co-operation and membership in the League of Nations, with the ex-
planatory reservation that the United States shall not engage in war with
any nation, except by vote of Congress, as provided in the United States
Constitution, and such other reservations as they deem wise?"
The question involves steps to be taken by the duly elected representa-
tive of the aforesaid district to bring about the presentation of a resolu-
tion memorializing the President and Senate of the United States, with
112 P.D. 12.
the object of bringing the United States into full co-operation and mem-
bership in the League of Nations, with certain reservations.
A similar question was determined by one of my predecessors in office,
in a communication to you on September 9, 1926 (not published), to be
a question of pubhc pohcy, and I hereby determine the aforesaid instant
question to be one of public policy.
Very truly yours,
Joseph E. Warner, Attorney General.
State Highways — Municipalities — Through Way.
Under G. L., c. 89, § 9, as amended, a municipality may not designate any
part of a State highway as a "through way."
Sept. 17, 1930.
Hon. Frank E. Lyman, Commissioner of Public Works.
Dear Sir : — You have asked my opinion relative to the right of a city
or town to designate any part of a State highway as a through way.
The pertinent part of G. L., c. 89, § 9, as amended by St. 1928, c. 357, § 5,
is as follows : —
"For the purposes of this section, the department of pubhc works may
from time to time designate any state or other highway or part thereof as a
through way, and may after notice revoke any such designation ; and any
city or town may, with the approval of said department and while such
approval is in effect, designate any way or part thereof within its control
as a through way and may, after notice and like approval, revoke any such
designation."
In the original enactment of G. L., c. 89, § 9, the power to designate
through ways could only be exercised by the Division of Highways of the
Department of Public Works, and then only over State highways. The
amendment of 1928, however, extended the right of the Department of
Public Works to designate as through ways any highway or part thereof,
and gave to a city or town the right to designate as a through way any way
or part thereof under the control of the city or town. It is plain, therefore,
that the city or town is limited in the exercise of the power to such ways
as are under the control of that particular city or town.
When the Revised Laws were in effect, section 11 of chapter 47 expressly
provided with regard to State highways that the State department should
"exercise complete and permanent control over such highways." While
this particular provision was dropped from the statute in the codification
of the laws relating to highways, which was enacted as part I of chapter
344 of the General Acts of 1917, it was still apparent from the entire chapter
that the State department retained general control and supervision over
these ways. It is clear that now, under G. L., c. 81, and the amendments of
the various sections of this chapter, that a city or town has only limited
rights and obligations with regard to State highways (such as to exercise
police jurisdiction, to make necessary temporary repairs and, under certain
conditions, to care for snow removal on these highwaj^s), and that it has no
control over State highways, within the meaning of the word "control" as
used in said G. L., c. 81, § 9, as amended.
I therefore answer your question that the city or town has no power to
designate any State highway or part thereof as a through way.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. ■ 113
Jurors — Disability — Fees.
A juror excused from service on account of physical disability or illness is
not entitled to a fee except by special order of the court.
Sept. 19, 1930.
Hon. Henry F. Long, Commissioner of Corporations and Taxation.
Dear Sir: — You request my opinion as to whether the words ''statute
cause" as used in Rule 66 of the Superior Court, relating to fees of jurors,
apply to cases where jurors are excused on account of illness or physical
disability.
The provision in Rule 66 to which you refer is as follows : —
"Persons summoned as jurors, who are excused for any statute cause,
shall be entitled to their fees for travel and attendance ; but if excused for
any other cause or if service is deferred, it shall be on condition that no fee
shall be allowed where no service is rendered; unless, in any special case,
the court otherwise directs."
The only statutory exemptions from jury service are those set forth in
G. L., c. 234, § 1; and no exemption because of physical infirmity is there
provided for. The power of the court to excuse because of physical dis-
ability is a common-law power and not statutory.
It follows, therefore, that under Rule 66 no juror excused on account of
physica.1 disability is entitled to his fees unless the court makes an order
that he be paid.
Very truly yours,
Joseph E. Warner, Attorney General.
Divorce — Libellant — Remarriage.
A person from whom a divorce has been granted may not remarry within
two years even if the libellant dies within such period.
Sept. 24, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir : — You have asked my opinion as to whether or not a
person from whom a divorce has been granted in this Commonwealth
may marry again within the two-year period mentioned in the applicable
statute if the party to whom the divorce was granted has died between
the time the decree of divorce became absolute and the expiration of the
two-year period.
Inasmuch as the statute itself is silent as to the effect of the death of
the libellant within the two-year period, it is necessary to consider the
principles of law relating to the right of a Kbelee to remarry, and the
history of the legislation in Massachusetts relating to remarriage after
divorce.
The appHcable statute, G. L., c. 208, § 24, reads as follows: —
"After a decree of divorce has become absolute, either party may marry
again as if the other were dead, except that the party from whom the
divorce was granted shall not marry within two years after the decree
has become absolute."
So far as I am aware, the precise question which you propound has
never been determined by the Supreme Judicial Court of Massachusetts
nor by any court of last resort in any State which has a similar statute.
114 P.D. 12.
There are many reported cases, however, in which a Hbelee has married
again within the two-year period while a hbellant was still alive, and
such marriages have been held in Massachusetts to be void. Googins v.
Googins, 152 Mass. 533; Commonwealth v. Josselyn, 186 Mass. 186;
Murphy v. Murphy, 249 Mass. 552; and WWight v. Wright, 264 Mass. 453.
In these cases the court has treated as void marriages made in viola-
tion of the two-year inhibition, and has held that the good faith of an
innocent party to such marriage did not bring the same within the pro-
visions of G. L., c. 207, § 6, which, under other circumstances, would have
made it valid by reason of the good faith of the innocent party. \Vright
V. Wright, supra. The court has held that, although the innocent party
did not know of the impediment created by the prohibition of remar-
riage, made by force of the instant statute (G. L., c. 208, § 24), and though
the parties continued to live together as man and wife after the expiration
of the two-year period, the marriage could not be regarded as legal even
after such expiration of time, but was void.
It seems plain that the instant statute is in the nature of a penal statute
imposing a restraint on the guilty party to a divorce. The Supreme Ju-
dicial Court said, in Chase v. Chase, 191 Mass. 166, 167, speaking of R. L.,
c. 152, § 21, which immediately preceded G. L., c. 208, § 24, "the purpose
of the statute is to prevent the guilty party, after a divorce, from speedily
forming a new matrimonial alliance." This being so, it is of no conse-
quence that a libellant has died before the expiration of the two-year
period, as regards the restraint placed upon a libelee. That the public
policy of this Commonwealth, as expressed in legislative enactments, has
been to penalize the guilty party to a divorce is to be seen by reference to
the earlier statutes relating to the subject. Thus, St. 1841, c. 83, and
G. S., c. 107, § 25, forbade the guilty party to a divorce to contract another
marriage during the life of the libellant, without leave of the court, on
pain of being adjudged guilty of polygamy. In a prosecution for bigamy
under the latter statute, in Cojnmonwealth v. Lane, 113 Mass. 458, the
court held that the provisions of the latter statute did not create a per-
manent incapacity to marry again, like an incapacity arising from con-
sanguinity or affinity, but its terms were rather in the nature of the im-
position of a penalty, though a penalty to which it was impossible to give
extraterritorial operation. In Commonwealth v. Putnam, 1 Pick. 136, 139,
the court held that under St. 1784, c. 40, an earlier act virtually pi'ohibit-
ing remarriage by the guilty party to a divorce for adultery, a divorce
a vinculo resulted in a complete dissolution of the marriage tie in Massa-
chusetts "notwithstanding the restraints imposed upon the husband, he
being the guilty cause of the divorce." In West Cambridge v. Lexington,
1 Pick. 506, 508, Parker, C.J., said of this statute (St. 1784, c. 40): —
"The evident intent of the legislature was to punish a second marriage,
by a person who had been before married, the other party to such mar-
riage being ahve; excepting from the penalty of the statute only such as
had procured a divorce on account of the criminal conduct of the party
with whom they had been connected in marriage."
It is to be noted that under the earlier statutes the disability existed as
long as the libellant was alive, unless the court should grant permission
for the remarriage of the libelee, and that the penalty was to be imposed
only when the libelee was guilty of adultery. By St. 1881, c. 234, § 4, the
Legislature made a change in the law (embodied also in the instant statute)
and provided the present provisions, which imposed a penalty on the
P.D. 12. 115
libelee for two years instead of during the lifetime of the libellant, and
made it applicable to other causes for divorce in addition to adultery.
This appears to have been done in order to restrain the libelee from mar-
riage for a period of only two years from the entry of the final decree,
but as the period of restraint was shortened the Legislature made no pro-
vision for further curtailing it in the event of the death of the libellant.
In other words, where formerly the libelee could not marry again dur-
ing the lifetime of the libellant without leave of court, by the newer
statutes he was prohibited from remarrying for two years. The length
of time in which he could not remarry was by the newer statutes made a
certainty, as opposed to the previous uncertainty arising from the length
of time in which the libellant might live and the difficulty the libellant
might be put to in proving to the court at any given time that he was a
fit person to re-undertake the responsibilities of marriage. By such a
radical change in the law the Legislature made the death of the libellant
an immaterial factor, and imposed the two-year prohibition.
It is my opinion, therefore, that the death of the libellant within the
two-year period named in the instant statute does not entitle the libelee
to remarry before the expiration of such two-year period.
Very truly yours,
Joseph E. Warner, Attorney General.
Civil Service — Department of Public Utilities — Division of Smoke Inspec-
tion — Employees.
Employees in the Division of Smoke Inspection of the Department of
Pubhc Utilities are under civil service.
Oct. 6, 1930.
Hon. Henry C. Attwill, Chairman, Department of Public Utilities.
Dear Sir: — You request my opinion as to whether the authority of
the Commission under St. 1930, c. 380, to appoint inspectors, assistants
and other employees to serve in the Division of Smoke Inspection, is
subject to civil service. This statute provides: —
"The commission may employ such inspectors, assistants and other
employees to serve in said division as may be necessary."
In my opinion, appointments made under the authority of this statute
must be made under civil service. Appointive positions in the govern-
ment of the Commonwealth are presumptively under civil service. See
IV Op. Atty. Gen. 619; VI Op. Atty. Gen. 152.
There is nothing in said chapter 380 to indicate that the Legislature
intended to exclude from the general rule the positions referred to.
Very truly yours,
Joseph E. Warner, Attorney General.
Soldiers' Relief — Widow of a Veteran — Remarriage.
The widow of a veteran is not entitled to receive the benefits provided
by St. 1929, c. 340, after her remarriage.
Oct. 14, 1930.
Mr. Richard R. Flynn, Commissioner of State Aid and Pensions.
Dear Sir: — I am in receipt of your request for my opinion as to
whether or not on certain stated facts a woman applying for hospital aid
or home care, under St. 1929, c. 340, is to be considered the widow of a
116 P.D. 12.
veteran, and therefore entitled to receive such benefits. You state the
facts to be as follows : —
"This widow first married a Civil War veteran, who served in a Ver-
mont regiment during the Civil War between 1861 and 1865. The vet-
eran deceased on October 16, 1880. The widow again married a civilian
on December 21, 1889, and he died in Boston, April 16, 1917."
St. 1929, c. 340, provides: —
"Chapter one hundred and fifteen of the General Laws is hereby
amended by adding at the end thereof, under the caption, 'Hospital or
Home Care', the following new section: — Section 25. The commissioner
shall expend such sum as he deems necessary to provide special care in a
hospital or at home for persons who served in the army or navy of the
United States in the war of the rebellion and received an honorable dis-
charge from all enlistments therein, their wives and widows, who are in
need of such care and who were legally settled in a town of this com-
monwealth on January first, nineteen hundred and twenty-nine. The
amount expended by the commissioner under this section shall be paid
from such appropriation as may be made for the purpose. One half of
such expense shall be assessed, collected and paid over by the town of the
beneficiary's settlement to the state treasurer in the same manner and at
the same time as state taxes. The person charged with disbursing mili-
tary aid or soldiers' relief in each town shall, within three days of receiving
an application for relief under this section, notify the commissioner of
such application upon blanks approved by him. Any person charged
with such disbursement who refuses or unreasonably neglects to give no-
tice required by this section within the time and substantially in the
form herein required shall be punished by a fine of twenty-five dollars."
Webster's dictionary defines a widow as "a woman whose husband is
dead and who remains unmarried." The definition in Bouvier's law dic-
tionary of a widow is "an unmarried woman whose husband is dead."
In a number of States where the word "widow" has been defined by the
court, the definition follows closely that of W^ebster's dictionary and Bou-
vier's law dictionary. Inslee v. Rochester d' Syracuse R.R. Co., Inc., 213
N. Y. S. 6; Whittlesey v. Seattle, 94 Wash. 645; In re Application for
Support of Minor Children, 164 Iowa, 208.
In this Commonwealth it is estabhshed that a devise to a widow "dur-
ing her widowhood" will be terminated by her later marriage. Dole v.
Johnson, 3 Allen, 364; Loring v. Loring, 100 Mass. 341.
In Guardians of the Poor of Amershani v. Guardians of the Poor of Lon-
don, 20 Q. B. D. 103, it was decided that a child whose father had died
ceased to have a widowed mother when her mother married again.
In an opinion from this Department to your predecessor in office, under
date of August 19, 1909 (not published), the question of the meaning of
the word "widow" being then considered, it was stated "that her second
marriage ended once and for all her status as the widow of the soldier
husband, and that the status is not revived for any purpose by the death
of the second husband."
I am of the opinion, therefore, that on the facts stated the appli-
cant ceased to be the widow of a veteran upon her second marriage, and
that she is not ehgible to receive the benefits provided for by St. 1929,
c. 340. ,j , ,
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 117
Local Board of Health — Town Clerk — Burial Permits.
A town clerk has authority to issue burial permits in a town having no
elective board of health.
Oct. 16, 1930.
Dr. George H. Bigelow, Commissioner of Public Health.
Dear Sir : — You have asked my opinion on the following question :
In a town having no elective board of health is the town clerk empowered
to issue burial permits, or should burial permits only be issued by the
selectmen acting as a board of health?
The statute covering the issuance of burial permits is G. L., c. 114,
§ 45, as finally amended by St. 1927, c. 48. The pertinent provisions of
this statute are as follows : —
"No undertaker or other person shall bury or otherwise dispose of a
human body in a town . . . until he has received a permit from the board
of .health or its agent appointed to issue such permits, or if there is no
such board, from the clerk of the town where the person died."
The question resolves itself into a matter of interpretation as to the
meaning of the words "board of health" in this statute. In my opinion,
these words, "board of health," mean an elective board of health rather
than the board of selectmen acting as a board of health where the town
has made no provision for a board of health.
Every town in the Commonwealth must have a board of selectmen,
but it is not essential that each town shall have a board of health. G. L.,
c. 41, § 1, provides that if a town does not provide for a board of health
the selectmen shall act as a board of health. Therefore, if in that portion
of G. L., c. 114, § 45, as amended, quoted above, the words "board of
health" are interpreted so as to mean the board of selectmen acting as
a board of health, where the town has made no provision for a board of
health, then the language of the statute authorizing the town clerk to
issue burial permits if there is no board of health is meaningless, for, as
pointed out, there is always a board of selectmen which is to act as a
board of health when there is no elected board. A construction of the
words "board of health," as used in the portion of said section 45 quoted
above, which will give meaning to the whole of such portion is that of an
elective board of health. It will then follow from such construction that
where there is no elective board of health a town clerk has authority, as
such, to issue burial permits, and he will not need to be appointed agent
for that purpose by a board of selectmen acting as a board of health.
I am not unmindful of the terms of G. L., c. Ill, § 1, which provide
that "board of health," as used in that chapter, "shall include the board
or officer having like powers and duties in towns where there is no board
of health." This definition of "board of health" in chapter 111, by the
language of the act itself, is restricted solely to chapter HI and cannot
be carried over and made apphcable to chapter 114.
Upon the foregoing considerations I am constrained to advise you that
in a town having no elective board of health the town clerk has authority
to issue burial permits.
Very truly yours,
Joseph E. Warner, Attorney Geiieral.
118 P.D. 12.
Soldiers' Relief — Children of Veterans — Remarriage of Mother.
Children of a deceased veteran who had a settlement in this Commonwealth
are entitled to the benefit of soldiers' relief, under G. L., c. 115, §§ 17
and 18, even if their mother has been remarried to a man able to sup-
P""'' *''™- Oct. 16, 1930.
Mr. Richard R. Flynn, Commissioner of State Aid and Pensions.
Dear Sir: — You request my opinion as to whether or not under certain
stated facts children are entitled to receive soldiers' relief. The facts in the
question asked, as they appear in your letter, are as follows: —
''A widow of a legally settled veteran living in this State has been re-
ceiving soldiers' relief on the service of her husband during the World War.
This widow recently remarried a civilian, and claims soldiers' relief for the
support of the veteran's children under the age of 16. Under the provi-
sions of G. L., c. 115, §§ 17 and 18, are said children entitled to soldiers'
relief consideration for their support, whether or not the civilian husband
of the mother is financially able to support them?"
The pertinent part of section 17 of G. L., c. 115, as amended by St. 1927,
c. 308, provides: —
"If a person who served in the army or navy of the United States in the
war of the rebellion, in the army, navy or marine corps in the war with
Spain or the Philippine insurrection between April twentj^-first, eighteen
hundred and ninety-eight, and July fourth, nineteen hundred and two, or
in the army, navy or marine corps in the world war and received an honor-
able discharge from all enlistments therein, and who has a legal settlement
in a town in the commonwealth, becomes from any cause, except his own
criminal or wilful misconduct, poor and wholl}^ or partly unable to provide
maintenance for himself, his wife or minor children under sixteen years of
age or for a dependent father or mother, or if such person dies leaving a
widow or minor children under sixteen years of age, or minor children over
sixteen but under eighteen years of age who attend school or are inca-
pacitated for work, or a dependent father or mother without proper means
of support, such support as may be necessary shall be accorded to him or
his said dependents by the town where they or any of them have a legal
settlement; ..."
It is apparent that provision is made under this statute for these surviv-
ing children, they being under sixteen years of age. The status of these
children, in so far as the requirements of the statute are concerned, was not
changed by the later marriage of their mother. The stepfather is under no
legal obligation to support them. Coakley's Case, 216 Mass. 71. It would
follow, therefore, that it is immaterial whether or not the stepfather is
financially able to support them.
The purpose of the Legislature in enacting this statute was to provide
for the support of these children, should they need it, as a recognition of
the service rendered by their father to the Nation in time of need. IV Op.
Atty. Gen. 613.
I am of the opinion, therefore, that these children, if they are without
proper means of support, are entitled to the benefit of soldiers' relief, even
if their mother has married again and the financial condition of her husband
is such that he would be able to support them.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 119
Military Service — Discharge — Gratuity.
A former soldier who received an honorable discharge, but who re-enlisted
a,nd thereafter received an "undesirable discharge," is not entitled to
a gratuity under Gen. St. 1919, c. 283.
Oct. 17, 1930.
Hon. John W. Haigis, Treasurer and Receiver General.
Dear Sir : — You request my opinion as to whether a gratuit}^ under
Gen. St. 1919, c. 283, should be granted to an apphcant who enHsted in the
service September 10, 1914, received an honorable discharge September
9, 1918, re-enlisted September 10, 1918, deserted July 5, 1919, was given an
undesirable discharge August 31, 1927, and made application for the
gratuity on or about September 13, 1930.
Section 2 of the act, so far as is here material, provides that the gratuity
be paid to those "who served during the war." But this is qualif?ed by
section 5, which provides that "no person shall be eligible for any benefit
accruing under this act who . . . shall have received a dishonorable dis-
charge from the service of the United States."
The present apphcant seems to fall within this disqualification. Al-
though his discharge for desertion is termed in your letter an "undesirable
discharge," nevertheless it is, in my opinion, a dishonorable discharge
within the meaning of section 5. See V Op. Atty. Gen. 405. The fact that
this discharge was given subsequently to the passage of the act is imma-
terial. The words "shall have" in section 5 include the future. It seems
immaterial that the applicant had previously received an honorable dis-
charge, inasmuch as the statute expressly disqualifies one who has received
a dishonorable discharge.
Moreover, the discharge referred to by the statute seems to be a last or
final discharge. Thus in section 4 of the act, relating to time of filing appli-
cations, reference is made to applicants whose "final discharge from serv-
ice " is received after the passage of the act. (Cf. St. 1927, c. 206, abolishing
the time limit originally established.) The present applicant was in the
service at the time of the passage of the act (July 3, 1919), and it would
seem, therefore, that his right to make application could accrue under
section 4 only upon his final discharge from that service. That discharge,
when obtained, was dishonorable.
It is my opinion that the present applicant is not entitled to the gratuity.
Yours very truly,
Joseph E. Warner, Attorney General.
Insurance — Domestic Stock Company — Increase of Capital Stock.
A domestic stock insurance company ma,y not vote to increase its capital
stock simultaneously by a stock dividend and by an issue of addi-
tional stock for cash.
Such a company may make such an increase prior to an approval of its
certificate of issuance.
The holder of a certificate of stock representing an increase in capital
stock is a stockholder, and entitled to dividends.
Only one certificate of approval of an increase of capital stock may be
issued with relation to such increase.
An increase in capital stock may not be returned as paid-up capital in a
company's annual statement prior to its approval.
120 P.D. 12.
Oct. 17, 1930.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir : — You have in a letter to me set forth the following facts : —
"A domestic stock company . . . has voted to increase its capital un-
der said section 70, in part by declaring a stock dividend and in part by
issuing additional shares of stock for cash.
An examination of the company indicates that certain persons, who
have purchased some of the new shares for cash, have been voting at
meetings of the company and have received dividends thereon, although
the certificate of company required by said section has not been filed with
the Commissioner for his approval.
The said company has made application to the Commissioner that it be
permitted now to file with him for his approval under said section 70 a
certificate evidencing the issue of stock certificates to an aggregate amount
less than the full amount of the proposed increase and to file further cer-
tificates with him as additional shares of stock are issued."
You have asked me the following questions of law relative to such facts : —
"1. May a domestic stock insurance company under said section 70
vote to increase its capital stock simultaneously by both of the methods
permitted by said section, that is, may an increase of any amount be
effected in part by a stock dividend and in part by issuing additional
shares for cash?
2. May such a company lawfully issue stock certificates representing
the amount of the increase in its capital stock, in whichever mode it is
made, prior to the Commissioner's approval of the company's certificate
required by said section 70?
3. If certificates are issued prior to the filing of the said certificate
with the Commissioner and the endorsement of his approval thereon, —
(a) Is a holder of such certificates a stockholder, with all the rights and
privileges thereof, or simply a creditor?
(b) May the company lawfully pay dividends on shares issued as afore-
said?
4. May the Commissioner, under said section 70, in any case, lawfully
approve a certificate or certificates filed with him by the company show-
ing that shares of stock have been issued to an amount less than the
amount of the proposed increase, or does said section require or permit
the approval of one certificate, and that only after all the stock certifi-
cates covering the full amount of the proposed increase have been issued?
5. May such a company, in returning the annual statement required
by said section 25, include in the amount of its paid-up capital stock the
amount of any stock certificates issued by it in connection with an in-
crease of its capital stock, prior to the Commissioner's approval of the
company's certificate required by said section 70?"
1. The appHcable statute, G. L., c. 175, § 70, as amended by St. 1924,
c. 450, § 8, reads as follows: —
"Such company may issue pro rata to its stockholders certificates of any
portion of its Actual net surplus it may decide to divide, which shall be
deemed to be an increase of its capital to the amount of such certificates, or
such company may, at a meeting called thei'efor, vote to increase the amount
and 7iumber of shares of its capital stock, and to issue certificates thereof
P.D. 12. 121
when paid in full. If a company shall vote to increase its capital in the second
of the two ways set forth in this section, the directors shall fix the price,
not less than par, at which, and the time, not less than thirty days after
the date of such vote to increase, within which the new stock may be
taken by the stockholders. And the directors shall forthwith give writ-
ten notice to each stockholder who was such at the time of the vote to
increase, stating the amount of the increase, the number of shares or
fractions of shares of new stock that such stockholder is entitled to take,
the price at which and the time within which such new stock may be taken.
Within said time each stockholder may take, at the price fixed as afore-
said, his proportion of such new shares at the date of such vote to in-
crease. If at the expiration of such time any shares remain untaken, the
directors may sell the same for the benefit of the corporation in such
manner and for such price, not less than the price fixed as aforesaid, as
they may determine. In whichever mode the increase is made, the company
shall, within thirty days after the issue of such certificates, submit to the com-
missioner a certificate setting forth the proceedings thereof and the amount of
such increase, signed and sworn to by its president and secretary and a
majority of its directors. // the commissioner finds that the increase is made
in conformity to law, he shall endorse his approval thereon; and upon filing
such certificate so endorsed with the state secretary and the payment of a fee
of one twentieth of one per cent of the amount by which the capital is
increased for filing the same, the company may transact business upon the
capital as increased, and the commissioner shall, upon payment of the fee
prescribed by section fourteen, issue his certificate to that effect."
Prior to 1887, provisions for the increase of capital stock of a domestic
insurance company in substantially the first manner mentioned in the
instant statute were set forth in P. S., c. 119, § 62. Provisions for the in-
crease of capital stock in substantially the second manner mentioned in
the instant statute were likewise set forth in sections 70 and 71 of said
chapter 119. In each instance a certificate of the Commissioner was re-
quired with relation to the increase of capital stock made under either
of the two sections (§§62 and 70).
St. 1887, c. 214, repealed P. S., c. 119, and combined in one section (§ 36)
the provisions of P. S., c. 119, §§ 62, 70 and 71. This new section read: —
"Any such company may issue pro rata to its stockholders certificates of
any portion of its actual net surplus it may deem fit to divide, which shall
be deemed to be an increase of its capital to the amount of such certifi-
cates. And such company may, at a meeting called for the purpose, vote
to increase the amount and number of shares of its capital stock, and to
issue certificates thereof when paid for in full. In ivhichever mode the in-
crease is made, the company shall within thirty days after the issue of such
certificates submit to the insurance commissioner a certificate setting forth
the amount of the increase, and the facts of the transaction signed and
sworn to by its president and secretary and a majority of its directors. If
the commissioner finds that the facts conform to the law, he shall indorse
his approval thereof, and, upon filing such certificate so indorsed with the
secretary of the Commonwealth, and the payment of a fee of five dollars
for filing the same, the company may transact business upon the capital as
increased, and the commissioner shall issue his certificate to that effect."
St. 1894, c. 522, repealed said St. 1887, c. 214, but re-enacted section 36
of said chapter 214 in the language of said section 36, and began a new
122 P.D. 12.
paragraph with the words "in whichever mode," which continued to the
end of the chapter.
In the codification of the statutes made by the Revised Laws, St. 1894,
c. 522, was re-enacted in the following form, the word "and" connecting
the two modes provided for increasing capital stock, but with the words
"in whichever mode," applying to the making of the increase, being
changed to "however the increase is made."
R. L., c. 118, § 36, reads as follows: —
"Such company may issue pro rata to its stockholders certificates of any
portion of its actual net surplus it may decide to divide, which shall be
deemed to be an increase of its capital to the amount of such certificates,
and such company may, at a meeting called for the purpose, vote to increase
the amount and number of shares of its capital stock, and to issue certifi-
cates thereof when paid for in full.
However the increase is made, the company shall, within thirty days after
the issue of such certificates, submit to the insurance commissioner a certifi-
cate stating the amount of the increase and the facts of the transaction,
signed and sworn to by its president and secretary and a majority of its
directors. If the commissioner finds that the facts conform to the law he
shall indorse his approval thereof; and, upon filing such certificate so
indorsed with the secretary of the commonwealth and the payment of a
fee of five dollars for filing the same, the company may transact business
upon the capital as increased and the commissioner shall issue his certifi-
cate to that effect."
The provisions of R. L., c. 118, § 36, were re-enacted in St. 1907, c. 576,
§ 39, which repealed R. L., c. 118, but re-enacted without change the words
of the earlier section 36.
St. 1912, c. 396, amended said St. 1907, c. 576, § 39, by prescribing de-
tails as to the manner in which a company should proceed in increasing its
capital stock in the second manner provided for in the earlier statutes,
setting forth the whole section in a single section but retaining the word
"and" before the authorization of the use of the second manner of making
an increase, and retaining the v/ords "however the increase is made" with
relation to the duty of filing a certificate.
In the compilation of the statutes in the General Laws said section 39
appears in chapter 175 as section 70, and for the first time in the history of
this portion of the insurance laws the word "or" is substituted for "and"
before the description of the second manner of making an increase of capital
stock. The revision also substituted the phrase "in whichever mode the
increase is made," as used in said St. 1894, c. 522, for the phrase "how-
ever the increase is made," first employed in the codification of R. L.,
c. 118, § 36. No change apphcable to the questions before me was made
by the amendment of 1924.
I have reviewed the history of this legislation in part for the purpose of
ascertaining what light it throws upon the meaning of the word "or" as
used in the instant statute, which meaning must be ascertained in order to
answer your first question. The word "or" is sometimes used as "and" in
statutory enactments. It is not synonymous with "and" and is to be
treated as interchangeable with it only when the obvious sense requires it,
or when otherwise the meaning is dubious. In most instances the word
"or," in its common use and also ordinarily in accurate meaning, has a
disjunctive force. It marks an alternative and not a conjunctive. It indi-
P.D. 12. 123
cates one or the other of two or several persons, things or situations, and
not a combination of them. Commonwealth v. Keenan, 139 Mass. 193;
Galvin v. Parker, 154 Mass. 346; Dumont v. United States, 98 U. S. 142.
It is construed as having a different meaning only when the context and
the main purpose to be accomplished by all the words used seem to demand
it, as was said by the court in Gaynor's Case, 217 Mass. 86, 89, 90.
The change of "and" to "or" appears to have been made in the enact-
ment in question for the first time by the codification of the General Laws.
Such a change so made would not work a change in the construction of the
law when the legislation as to the relation of the two clauses of the measure
had been clearly shown by earlier enactments. There is no reason inherent
in the subject matter of the section why it should be construed as pro-
hibiting the simultaneous use of both means of capital stock increase.
That being so, and in view of the emploj^ment of "and" in the earlier
statutes, I am constrained to say that, as used in the instant section of the
statute, the word "or" has no disjunctive sense but is employed as though
it had the common meaning of "and."
I therefore answer your first question in the affirmative.
2. The statute itself recites that "in whichever mode the increase is made
the company shall within thirty days after the issue of such certificates, sub-
mit to the commissioner a certificate." The language of the statute com-
pels an affirmative answer to your second question.
3. A holder of a certificate, even before the approval of the Commissioner
given to a proposed increase in capital stock, is in the relation of a stock-
holder to the company and not that of a creditor, and I so answer your
question 3 (a).
The Legislature has not made the approval of the Commissioner a pre-
requisite to the issuing of certificates, but specially designates that such
approval is to be given after the issue.
The purpose of a statute such as this is the protection of the pubhc
against fraud through improper increases in stock or through ignorance of
the extent of capital stock. The purchasers of the certificates become stock-
holders; though, if the approval of the increase is denied by the Commis-
sioner, after such denial their status may change and they may then have
certain rights to recover money paid in, as against the company. Prior to
such event their status is not that of creditors but of stockholders. Bar-
rows V. Natchaug Silk Co., 72 Conn. 658; Bailey v. Tillinghast, 99 Fed. 801.
Inasmuch as the holders of the certificates for the stock as increased have
the status of stockholders, thej'^ are entitled to receive dividends on such
shares as they hold. If, however, the certificate of the Commissioner is
later denied as to the increase of stock, the certificate holder may then, as
between himself and the company, be liable to pay back the amount of such
dividends, his liability in that respect depending upon the existence of
various facts, which might differ in various cases. Reed v. Boston Machine
Co., 141 Mass. 454; Thompson on Corporations, vol. 5, 3661-6.
I therefore answer your question 3 (h) in the affirmative.
4. I am of the opinion that the legislative intent, as evidenced by the
language used in the instant statute, viewed with regard to its earlier
forms, is to treat each increase of capital stock as a single entity, though
made in either one or in two manners simultaneously, and to provide for
only one certificate of approval as to whatever issue, as a whole, is deter-
mined by the company to be made as an increase. The language of the
instant statute —
121 P.D. 12.
"In whichever mode the increase is made the company shall, within
thirty days after- the issue of such certificates, submit to the coimnissioner a
certificate setting forth the proceedings thereof and the amount of such
increase, ... If the commissioner finds that the increase is made in con-
formity to law, he shall endorse his approval thereon.'^ —
leads inevitably to the conclusion that the intent of the Legislature was to
require a single endorsement of approval by the Commissioner, covering
the entire issue of increased capital stock as voted by the company.
5. I answer your fifth question in the negative. However matters may
stand as between holders of certificates of shares voted to increase the
capital stock and the company prior to receiving the approval of the Com-
missioner, such approval is, by the terms of the statute itself, made a pre-
requisite to the transaction of business by the company itself "upon the
capital as increased." To include in an official annual statement of the
amount of paid-up capital stock of a company stock certificates issued in
connection with an increase of capital stock is a form of transacting business
upon the capital as increased, and one calculated to mislead the public, for
whose protection this statute was chiefly enacted, if the increase of capital
stock has not been already approved.
Very truly yours,
Joseph E. Warner, Attorney General.
Insurance — Burglary — Transportation.
A company authorized to insure against any risk or hazard of marine or
inland navigation or transportation insurance only may not insure
against burglary in an assured's residence; nor may the Commis-
sioner grant it a license so to insure, under G. L., c. 175, § 51 (g), as
amended.
Oct. 17, 1930.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir: — You have asked me in a recent communication the two
following questions relative to a domestic insurance company authorized
by G. L., c. 175, § 51, as amended, to transact the kinds of business set
forth in the first, second and eighth clauses of section 47 of said chapter
175, as amended.
"1. Is a domestic insurance company, authorized to transact business
under said clause second, permitted under any of the provisions thereof
to insure personal property against loss caused by any risk or hazard, in-
cluding loss caused by burglary in the insured's residence?
2. If you answer the preceding question in the negative, is the Com-
missioner authorized, under clause (g) of said section 51, to issue a special
license to such a company to insure such property against loss caused by
any risk or hazard, including loss caused by burglary in the insured's
premises?"
You further state in your communication as follows: —
"This company issues a form of floater policy covering furs, jewelry and
other personal property of the insured, or members of the family perma-
nently residing with the insured, against all risks of loss or damage during
'transportation or otherwise.' This policy is intended to insure against
loss caused by burglary in the insured's residence.
P.D. 12. 125
The company apparently contends that under the provisions of the
second clause of said section 47 it has the right to insure personal property
against loss caused by any risk or hazard or all risks or hazards.
Loss by burglary is insurable under clause twelfth of said section 47,
and under said section 51, as amended, a fire or marine insurance com-
pany may not transact business under said clause twelfth."
The first and eighth clauses of said section 47 have no application to
the questions which you have asked.
The pertinent portions of said section 47, as amended, read: —
"Second, To insure, (a) vessels, freights, goods, mone}^, effects, and
money loaned on bottomry or respondentia, against the perils of the sea
and other perils usually insured against by marine insurance; (b) against
risks of inland navigation and transportation; (c) in connection with
marine or inland navigation or transportation insurance on any property-,
against any risk or hazard whether to person or to propert}^ including
legal liability on account of loss or damage to either, arising out of the
construction, repair, operation, maintenance or use of the subject matter
of such primary insurance; . . ."
The words "against any risk or hazard," in clause (c), read in their con-
text, refer to any risk or hazard of marine or inland navigation or trans-
portation insurance. Loss caused by burglary in the insured's residence
has not in the past been treated by courts of authority as falling within
"perils usually insured against by marine insurance," and it cannot well
be said that the scope of such perils is enlarged by the use of the words
"marine or inland navigation or transportation insurance." See III Op.
Atty. Gen. 37, 42. I therefore answer your first question in the negative.
It has been held in an opinion of one of my predecessors in office (VII
Op. Atty. Gen. 426), with which I concur, that the provisions of G. L.,
c. 175, § 51 (g), as amended, which reads, in part, as follows: —
"Such other form or forms of insurance coverage not included in the
provisions of section forty-seven and not contrary to law as the commis-
sioner in his discretion may authorize and license and which shall be
transacted only upon such terms and conditions as he may from time to
time prescribe and upon payment of the fee prescribed by section four-
teen." —
do not empower the Commissioner of Insurance to authorize and license
an insurance company to transact forms of insurance not included in the
provisions of said section 47 when such forms are not otherwise lawful
for such company to engage in; and since you advise me that the com-
pany as to whose rights you inquire may not lawfully transact business
under said section 47, clause twelfth, as amended, which relates to bur-
glary insurance, I am constrained to advise you that the Commissioner
of Insurance has no authority to issue to it a special license to insure against
burglary.
Very truly yours,
Joseph E. Warner, Attorney General.
126 P.D. 12.
Eminent Domain — Easements of Light and Air — Land Adjoining State
House.
None of the abutting landowners on Bowdoin and Derne Streets, over-
looking the green space east of the State House, has an easement of
light and air therein.
Oct. 21, 1930.
Recess Commission on the Supreme Judicial Court Building.
Gentlemen: — You ask my opinion on the following questions: —
"Whether or not owners of laiid adjoining the State House grounds on
Derne and Bowdoin Streets would have further rights regarding light
and air if a building was erected on said State House grounds, because
of the possible dedication of said land as an open space; also whether or
not the Commonwealth might be held liable for further damages on such
account?"
In order to answer your questions thoroughly it was necessary to make
a complete title examination of the land comprised in the so-called open
space bounded by the State House on the west, Derne Street on the north,
Bowdoin Street on the east, and Mount Vernon Street on the south, to-
gether with a title examination of the land bordering on Derne Street and
Bowdoin Street overlooking the open space. The title search was com-
plicated by the fact that l5erne Street was not laid out until 1806, and
in the eighteenth century was known as a cow path to the top of Beacon
Hill. Also, in 1811 the top of Beacon Hill was removed, and that made
it extremely difficult to scale distances mentioned in old deeds and plans
from present landmarks.
As a result of this title search, we have found no easements of light and
air in favor of the estates on Bowdoin Street and Derne Street which over-
look the open space.
Easements of light and air can only be created by deed or covenant in
Massachusetts. No such easements can be acquired by prescription.
See Lipsky v. Heller, 199 Mass. 310. In that case the court said (p.
316): —
"But without express words a deed of land conveys no right to light
and air over other lands."
Brooks V. Reynolds, 106 Mass. 31, 32; Salisbury v. Andrews, 128 Mass.
336; Ladd v. Boston, 151 Mass. 585; Baker v. Willard, 171 Mass. 220.
If a grantor has said that an open space is not to be built over, or is to
be kept open by the abutters, or its existence as an open space is shown
to be absolutely necessary to afford light and air required for the enjoy-
ment of the surrounding premises, there is an easement of light and air
by implication. See Schwoerer v. Boylston Market Assn., 99 Mass. 285;
Attorney General v. Williams, 140 Mass. 329; Case v. Minot, 158 Mass.
577; Emerson v. Wiley, 10 Pick. 310; Brooks v. Reynolds, 106 Mass. 31.
There is no ground for creating an easement of light and air by impli-
cation in the present case, for in the first place the open space was, before
it was taken by the Connnonwealth for an open space, covered by build-
ings. The abutters on Bowdoin Street who overlook the open space de-
rive their title from Daniel D. Rogers, who at one time owned the whole
tract bounded by the State House on the west, Derne Street on the north,
Somerset Street on the east and Beacon Street on the south. When he
P.D. 12. 127
deeded property on Bowdoin Street his deeds reserve no easements of
light and air over his remaining property west of Bowdoin Street. There
is likewise nothing to indicate that the grantees acquired such an ease-
ment by implication.
The same holds good of the abutting landowners on Derne Street who
overlook the open space. As far as can be determined from old plans and
records of title, the land north of Derne Street was owned by one Robert
Turner, who held title through John Turner, who owned the land in
1665. Robert Turner is also the basic back title of Daniel D. Rogers, who
owned the land comprising the present open space. The various deeds
from Robert Turner down to Rogers disclose no easements of light and
air reserved for that portion of the grantor of land north of Derne Street.
Furthermore, even if there were any easements of light and air not
disclosed by our careful search, such easements would be wiped out by
the takings by the Commonwealth, in 1888 by virtue of St. 1888, c. 349,
and in 1892 by St. 1892, c. 404. By the terms of these acts there was a
one-year statute of limitations imposed upon persons who might be
aggrieved by the takings. If any persons had an easement of light and
air over the land now comprised in the open space, their easements were
cut off by the takings, and it is now too late for them to seek damages.
We now come to the question whether or not the abutting landowners
on Bowdoin and Derne Streets overlooking the open space have acquired
any easements, or rights in the nature of easements, of light and air in
the open space by virtue of St. 1892, c. 404. This act was entitled "An
Act to provide an open space on the east side of the State House Exten-
sion," and provided as follows: —
"Section 1. For the purpose of securing an open space around the
state house, the state house construction commissioners are hereby author-
ized, in the name and behalf of the Commonwealth, to take by purchase
or otherwise, within three months after the passage of this act, the whole
of the tract of land in the city of Boston, bounded north by Derne street,
east by Bowdoin street, south by Beacon Hill place, and west by the state
house."
It is to be noted that the Commonwealth had already acquired title to all
of this, with the exception of a parcel bordering on Bowdoin Street, by the
taking of 1888.
In my opinion, there was no dedication of this land by the Common-
wealth to public uses by the passage of this act. The purpose of the act
was to provide an open space around the State House, not to provide an
open space for the benefit of abutting landowners, or for the public at large.
The abutting landowners have no easement of light and air on this open
space by virtue of this act. Even if it could be held to be a dedication to
the public as an open space, it would be competent for the Legislature to
authorize a different public use by the exercise of its power of eminent
domain. See Codman v. Crocker, 203 Mass. 146. The grantors of the land
constituting this open space gave an unconditional fee to the Common-
wealth, and they cannot claim damages if it is no longer used for an open
space. The only conceivable way in which there could have been a dedi-
cation to the public as an open space would have been if the grantors,
instead of having had their land taken by eminent domain and thereafter
given confirmatory deeds, had banded together and offered this land to the
Commonwealth for that purpose, and the Commonwealth had accepted it
128 P.D. 12.
for that purpose. In that case the grantors would have an interest to see
that the original purposes were still being carried out, which they could
only be deprived of by eminent domain.
But where there has been a taking by virtue of a statute, as in this case,
for a public use, it is perfectly competent for the Legislature later to provide
that the land shall be used for an entirely different public use. See Boston
V. Brookline, 156 Mass. 172; Old Colony R.R. Co. v. Framingham Water
Co., 153 Mass. 561, and cases cited.
The only remaining question is : Have the abutting owners acquired by
prescription an easement of light and air over this open space, having
enjoyed it for more than twenty years. The answer is in the negative.
Easements of light and air cannot be gained by prescription in this Com-
monwealth. See Hamye v. Elia, 251 Mass. 465; Lipsky v. Heller, 199
Mass. 310; Tidd v. Fifty Associates, 238 Mass. 421; Keats v. Hugo, 115
Mass. 204.
In addition to the common law of Massachusetts prohibiting such pre-
scriptive rights, the Legislature has passed a statute prohibiting easements
of light and air by prescription. See G. L., c. 187, § 1.
You are therefore advised that no one of the abutting landowners on
Bowdoin and Derne Streets overlooking the open space to the east of the
State House has an easement of light and air therein, and that the Com-
monwealth would be liable in damages to no one if the Legislature should
provide for the erection of a building devoted to public uses on such open
space.
Very truly yours,
Joseph E. Warner, Attorney General.
Fish and Game Laws — Licenses — Convictions — Seizures.
Under G. L., c. 130, § 105, as amended, a second conviction for violation
of the fish and game laws does not deprive the defendant of his license
while an appeal is pending; nor, if he is convicted upon two com-
plaints for violations of law arising from one act or from two acts
committed at the same time, is he deprived of his license.
Although undersized shellfish or those taken from contaminated areas
may be seized, motor vehicles in which they are contained may not
be seized.
Oct. 28, 1930.
Hon. William A. L. Bazeley, Conunissioner of Conservation.
Dear Sir : — You have asked my opinion upon three questions relative
to the enforcement and administration of certain of the fish and game laws
of this Commonwealth.
1. Your first question is whether a person licensed to take lobsters, who
is twice within three 3^ears found guilty of a violation of the fish and game
laws but who appeals from the second finding, would be by law deprived
of his license before the final disposition of the case upon appeal.
G. L., c. 130, § 105, as amended by St. 1928, c. 21, reads, in part: —
"If a licensee under the preceding section" [which provides for the
granting of licenses to catch or take lobsters] "is convicted a second or
subsequent time within a period of three years of violation of the same
or a different provision of the fish and game laws he shall immediately
surrender his license to the ofl&cer who secured the second conviction,
P.D. 12. 129
and the license shall be void, and the licensee shall not receive another
such license until after the expiration of one year from the date of the
second conviction; ..."
Assuming that the disposition of the first offense in the case supposed
is a "conviction" under the principles about to be referred to, it is clear
that the license does not become void by reason of the second finding of
guilty unless the same is also a "conviction" within the meaning of said
section 105.
One of my predecessors in office, Hon. Henry A. Wyman, rendered an
opinion to the Commissioners of Fisheries and Game under date of Sep-
tember 22, 1919 (V Op. Atty. Gen. 401), with which I concur, which con-
tains a full discussion of the question with relation not only to the specific
case which you state but also to four other possible dispositions of com-
plaints by the lower court. This opinion related to the meaning of the
word "conviction" under Gen. St. 1919, c. 296, § 12, which provided, in
part : —
"The certificate of any person who shall be convicted of a violation of
any of the fish and game laws or of any provision of this act shall be void,
and his certificate shall immediately be surrendered to the officer who
secures such conviction, ..."
G. L., c. 130, § 105, as amended, does not differ from this statute in any
particular which would render the opinion referred to inappHcable to
your question. Attorney General Wyman said in his opinion (p. 403): —
"Your fifth question is whether a conviction is had, within the meaning
of this statute, where the defendant, pleading not guilty but being found
guilty in the lower court and fined, appealed to the Superior Court. This
question is, in my judgment, disposed of by an opinion rendered to the
State Board of Health under date of Feb. 25, 1914, to the effect that the
term 'conviction' in a similar statute implied a final judgment, and did
not apply while an appeal was pending from a lower court. IV Op. Atty.-
Gen. 157. It results from this that in the situation set forth in your fifth
inquiry the defendant cannot be considered as having been convicted
while his appeal is still pending."
I answer your first question in the negative.
2. Your second question is based upon the following stated case: A
person licensed under the fish and game laws is found at the same inspec-
tion to be violating two different provisions of those laws. Two separate
complaints are thereupon brought against him and are tried together.
He is convicted upon both complaints. You ask whether this hcensee
has then been convicted a "second or subsequent time," within the mean-
ing of G. L., c. 130, § 105, as amended.
In Tuttle V. Commonwealth, 2 Gray, 505 (1854), a defendant was found
guilty by the jury on three counts in an indictment, each of which charged
him with an illegal sale of intoxicating liquor under St. 1852, c. 322, § 7.
The court sentenced him to pay a fine on the first of the three counts, an
increased fine on the second count, and sentenced him to a fine and to
imprisonment on the third count, in the same manner as if there had been
three distinct convictions. It was held that this judgment was erroneous,
since, in order to sustain a penalty increased and aggravated by convic-
tion of a prior offense, the complaint upon which it is imposed must aver
the prior conviction.
130 P.D. 12.
In your question you do not state whether the two separate complaints
are brought at the same time or at different times; in view of the fact
that the offenses were committed on the same occasion, however, this
would be immaterial under the decision in Commonwealth v. Daley, 4 Gray,
209 (1855). It was held in that case that an indictment under St. 1852,
c. 322, § 7, which alleged a previous conviction of a similar offense, was
not supported without proof that the first conviction was before the com-
mission of the second offense. The said statute provided for an increased
penalty on a second conviction for an unlawful sale of liquor. The court
said, at page 211, that, interpreted literally, the language of the statute
would seem to justify the conclusion that it was necessary for the Com-
monwealth to prove only a previous conviction, without regard to the
time when the offense on which such conviction was had was committed;
but it was held that such a literal interpretation would contravene the
true intent and spirit of the statute, the sole object of which was to deter
persons from the repeated commission of similar offenses by imposing
additional and severer penalties for each successive violation of law. The
court said (p. 212): —
"The law. does not seek to take vengeance upon its violators. It strives
by its penalties to warn and hinder rather than to punish."
The court also said (p. 213): —
"It is no answer to this view to say, that if a party has twice violated
the law, he ought therefore to suffer the aggravated punishment without
regard to the time when the offences were committed. Such an argument
loses sight of the principle on which aggravated penalties are prescribed.
That principle is that the offender is first to incur the lighter penalty, and
be thereby subjected to the discipline which penal enactments are in-
tended to exert upon the violators of law, before he can be liable to incur
the more aggravated punishment."
This decision was followed and further discussed in Commonwealth v.
Richardson, 175 Mass. 202 (1900).
The principle so established applies to your second question, my
answer to which is therefore in the negative.
3. Your third question is whether a warden, upon discovering in a
motor truck or automobile either undersized or contaminated shellfish,
may seize and confiscate both the shellfish and the vehicle.
G. L., c. 130, § 152, provides that "constables may arrest without a
warrant any person found violating such laws, and detain him until a
warrant for arrest for such violation may be applied for; and may seize
any boat or vessel used in such violation, and her tackle, apparel, furni-
ture and implements, which shall be forfeited," and by G. L., c. 131, § 16,
as amended by St. 1930, c. 393, it is provided that wardens shall have and
exercise, for the enforcement of laws relating to fish, all the powers of
constables. In my opinion, however, the use of the word "vessel" in
G. L., c. 130, § 152, is confined to the sense of craft for navigation of the
water and so docs not include truck or automobile. Nor do I find else-
where in the laws of the Commonwealth any provision authorizing the
seizure or forfeiture of trucks or automobiles for the offenses named.
G. L., c. 131, § 18, as amended by St. 1930, c. 393, provides that the —
"director, supervisor, wardens, deputies or members of the state police,
may searcli any boat, vehicle, car, box, locker, crate or package . . .
P.D. 12. 131
where he has or they have reason to believe any fish . . . unlawfully
taken or held may be found, and may seize any fish ... so taken or held,
which shall be disposed of in such manner as the director deems for the
best interests of the commonwealth; provided, that this section shall not
apply to fish . . . passing through this commonwealth under authority
of the laws of the United States."
But no authority is given by this section to seize or confiscate any vehicle,
truck or automobile. The penalties for transporting or causing to be
transported shellfish taken from a contaminated area are set forth in
G. L., c. 130, § 138, as finally amended by St. 1929, c. 372, § 25, but here
again the Legislature has not provided for a seizure and forfeiture of a
vehicle in which such shellfish may be found.
Accordingly, I answer your third question to the effect that although
undersized shellfish or those taken from contaminated areas may be seized
and confiscated under certain circumstances, motor trucks or automobiles
in which they are contained may not be seized and confiscated.
Very truly yours,
Joseph E. Warner, Attorney General.
State Fire Marshal — Investigation of Fires — Discretion.
Under St. 1930, c. 399, the Fire Marshal must investigate all fires of sus-
picious origin, of which origin he has notice; and he may, in his
discretion, investigate any fire.
Oct. 30, 1930.
Gen. Alfred F. Foote, Commissioner of Public Safety.
Dear Sir: — You request my opinion as to whether reports of fires by
heads of fire departments to the Fire Marshal, under St. 1930, c. 399, § 2,
are ''for the purpose of enabling the Marshal to complete the investigation
of such fires."
Section 2 of said chapter is as follows : —
"Heads of fire departments in cities, towns or fire districts shall investi-
gate the cause and circumstances of every fire in their respective jurisdic-
tions by which property has been destroyed or damaged, especially to
ascertain whether it was caused by carelessness or design. They shall begin
such investigation forthwith after such fire, and if it appears to the official
making such investigation that the fire is of suspicious origin or is the result
of a violation of law, or if he is unable to determine the cause, he shall
immediately notify the marshal. All other fires by which a loss is sustained
shall, within forty-eight hours, excluding Sundays and holidays, be reported
in writing to the marshal. Reports required by this section shall be on
forms furnished by the department, and shall contain a statement of all
facts relating to the cause and origin of the fire that can be ascertained,
the extent of damage thereof, the insurance upon the property damaged,
and such other information as may be required. The marshal shall keep
in his office a record of all fires occurring in the commonwealth, with the
results of such investigations, and such records shall be open to public
inspection."
Section 3 is as follows : —
"The marshal shall investigate or cause to be investigated the circum-
stances of all fires of suspicious origin of which he has notice, and may
132 P.D. 12.
investigate or cause to be investigated the circumstances of any fire. For
such purpose the marshal, or some person designated by the commissioner,
may summon and examine on oath, administered by the marshal or such
person, any person supposed to know or have means of knowing any ma-
terial facts touching the subject of investigation. Such v/itnesses may be
kept apart and examined separately, and such examination shall be re-
duced to writing, and false testimony therein shall be perjury. Any justice
of a district court or of the superior court, upon application of the marshal
or person so designated, may compel the attendance of such witnesses and
the giving of such testimony in the same manner and to the sam.e extent
as before said court. If, upon such investigation, the marshal or person so
designated believes that the evidence is sufficient to charge any person with
crime, he shall make a complaint therefor, and shall furnish the proper
officers with the evidence and names of witnesses obtained by him. He
shall, when required, report to the commissioner of insurance his proceed-
ings and the progress in prosecutions instituted hereunder."
Section 8 is as follows : —
"The marshal shall report to insurance companies, to owners of property,
or to other persons interested in the subject matter of an investigation of
the cause and circumstances of a fire any information obtained by such
investigation which may in his opinion require attention from or by such
insurance companies, owners of property or other persons. He may also
report to the head of the fire department the results of any investigation into
fires of suspicious origin reported to him by such head as required by sec-
tion two."
It appears from these sections that a head of a fire department shall
forthwith begin an investigation of every destructive fire; and immedi-
ately notify the Marshal if it appears that (1) the fire is of suspicious origin,
or (2) is the result of a violation of law, or (3) if he is unable to determine
the cause; if no one of these three things appears, the fire shall be reported
in writing to the Marshal within forty-eight hours of its occurrence, exclud-
ing Sundays and holidays.
Under section 3 the Marshal is required to investigate fires of suspicious
origin of which he has notice; and has power, if he sees fit, to investigate
any fire. A distinction is thus drawn between a fire of which the Marshal
has notice that it is of suspicious origin and all other fires. As to the
latter, the Marshal may investigate or not as he sees fit.
As I understand your question I answer it in the affirmative.
Very truly yours,
Joseph E. Warner, Attorney General.
Warehouseman — License — Places of Business.
The license of a public warehouseman, given under G. L., c. 105, §§ 1-6,
does not permit him to operate a warehouse anywhere within the
Commonwealth but only in such city or town as is designated in
the license and covered by a bond.
Nov. 17, 1930.
His Excellency Frank G. Allen, Governor of the Commonwealth.
Sir: — You have asked me for an opinion relative to the law govern-
ing the licensing and bonding of public warehousemen, in connection with
a letter written to Your Excellency.
I am of the opinion (1) that the statutes require that a public ware-
P.D. 12. 133
houseman should receive a license as such specifically for each city or
town where he intends to operate, before he can do business therein;
(2) that a license cannot be issued which will permit the licensee to do
business generally in the Commonwealth, but that the hcense must be
confined to a single city or town; (3) that he must file a bond in connec-
tion with each hcense; and (4) that within a single city or town as to
which such license is issued the licensee is not limited to the operation of
one warehouse but may operate more than one therein, and is not re-
quired to give more than one bond as a condition precedent to doing
business in a single city or town.
Some confusion in an interpretation of the applicable statutory pro-
vision may at first sight appear to arise from the fact that in the codifica-
tion of the General Laws certain words were omitted in connection with
the laws governing warehousemen which had been employed in the ear-
lier statutes. I am of the opinion, however, that the omission of these
words does not indicate an intention upon the part of the Legislature to
change the meaning of the provisions of the law, in the respects which
I have noted, from what it was before the codification.
Prior to the codification of the General Laws in 1921, the applicable
portions of the statute, R. L., c. 69, stood in substantially the same form
and with the same meaning as the provisions of the earlier statutes upon
the subject of warehousemen, beginning with St. 1860, c. 206. They were
as follows : —
R. L., c. 69:
"Section 1. The governor, with the advice and consent of the coun-
cil, may license in any city or town suitable persons, or corporations estab-
lished under the laws of the commonwealth and having their places of
business within the commonwealth, to be public warehousemen. Such
warehousemen may keep and maintain public warehouses for the storage
of goods, wares and merchandise. They shall give bond to the treasurer
and receiver general for the faithful performance of their duties in an
amount and with sureties to be approved by the governor, and may ap-
point one or more deputies, for whose acts they shall be responsible. A
railroad corporation which is licensed as a public warehouseman shall not
be required as such to receive any property except such as has been or is
forthwith to be transported over its road or to give sureties on its bond.
Section 8. The secretary of the commonwealth shall, at the expense
of each warehouseman, give notice of his license and qualification, of the
amount of the bond given by him and also of the discontinuance of his
license by publishing the same for not less than ten days in one or more
newspapers, if any, published in the county or town in which the warehouse
is located; otherwise, in one or more newspapers published in the city of
Boston."
In 1921 the Legislature, in establishing the codification known as the
General Laws, repealed said R. L., c. 69, and re-enacted its subject mat-
ter contained in said sections 1 and 8 in the following form: —
G. L., c. 105:
"Section 1. The governor, with the advice and consent of the coun-
cil, may Hcense suitable persons, or corporations established under the
laws of, and having their places of business within, the commonwealth,
to be public warehousemen. Such warehousemen may keep and main-
134 P.D. 12.
tain public warehouses for the storage of goods, wares and merchandise.
They shall give bond to the state treasurer for the faithful performance
of their duties in an amount and with sureties approved by the governor,
and may appoint one or more deputies, for whose acts they shall be re-
sponsible. A railroad corporation licensed as a public warehouseman
shall not be required as such to receive any property except such as has
been or is forthwith to be transported over its road or to give sureties
on its bond.
Section 6. The state secretary shall, at the expense of each ware-
houseman, give notice of his license and qualification, of the amount of
the bond given by him and also of the discontinuance of his license by
publishing the same for not less than ten days in one or more newspapers,
if any, published in the county or town where the warehouse is located; other-
wise, in one or more newspapers published in Boston."
G. L., c. 105, § 1, differs from R. L., c. 69, § 1, in that the words "in
any city or town" are omitted. Nevertheless, G. L., c. 105, contains in
section 6 the same provisions that were in section 8 of the Revised Laws
relative to publication of notice of license and qualification of a ware-
houseman, which clearly indicate that since such notice is required to be
"published in the county or town in which the warehouse is located" the
license is not intended to grant authority to the licensee outside a single
municipality. This provision of G. L., c. 105, § 6, is utterly without
meaning if the omission from section 1 of the words "in any city or town"
is to be treated as altering the meaning of said section 1 so as to provide
for a state-wide license. In order to give a meaning to the whole of the
provisions of the re-enactment it is clear that the new section 1 of G. L.,
c. 105, must be interpreted as having the same meaning as R. L., c. 69,
§ 1. The omission of the words "in any city or town" from the first
section of the new statute is to be treated merely as the removal of words
considered as surplusage, and the re-enactment of the rest of the section
with such omission will receive the same interpretation as that which was
so plainly required by the older statute.
The provision for the giving of bond after license clearly appears to
apply to operation under a license applicable to a specific city or town,
and a bond is required before doing business in each city as to which a
warehouseman may be given a license, notice of which is to be published
in a newspaper, if any there be, in the county or town to which the license
specifically applies and in which the warehouse is to be licensed.
The questions which were propounded in the letter to Your Excellency
are as follows : —
"1. Does our license permit us to do business as public warehousemen
anywhere within the Commonwealth?
2. Is it necessary to file a bond for each location?
3. Would it not be within the power of Your Excellency and the Coun-
cil, in the event that a further bond is required from us, merely to in-
crease the size of our outstanding bond and not provide that a separate
bond shall be filed for each location?"
Under the opinion which I have expressed, the first of these questions
should be answered in the negative, the second in the affirmative and
the third in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. • 135
Insurance — Life Policy — Medical Examination.
Each new policy of life insurance issued to one already insured by a life
company must be preceded by a medical examination, under G. L.,
c. 175, § 123, as amended.
Nov. 17, 1930.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir : — In a communication to me you have set forth the follow-
ing facts relative to a form of life insurance policy filed with you for your
approval under G. L., c. 175, § 132, as amended: —
"The Penn Mutual Life Insurance Company has filed with me, under
said section 132, a form of life policy which provides that the company
will on the anniversary of said policy issue to the insured an additional
policy on the same plan of insurance as the original policy at the attained
age of the insured and at the company's premium rates in force, when
said additional policy is issued, that the first year's premium on the addi-
tional policy shall be equal to the first year's dividend on the original
policy and that the insurance under the additional policy shall be for such
amount as said dividend will purchase at said rates and age. The addi-
tional policy, it is proposed, is to be issued without a medical examination."
You advise me that you have disapproved the said form of policy on
the ground that it provides for the issue of a new, separate and inde-
pendent policy at a later date without a medical examination, contrary
to G. L., c. 175, § 123, as amended, and that in so doing you relied upon
an opinion of a former Attorney General rendered to you on October 31,
1925 (not published).
You have asked my opinion upon the following question of law : —
"Does G. L., c. 175, § 123, as amended, require that a life company,
prior to the issue of an additional life policy pursuant to a provision in
another life policy, previousl}^ issued by the company, for the automatic
issue of such additional life policy and the payment of the premiums
thereon by the application thereto of the dividends on the policy pre-
viously issued, give a prescribed medical examination to the person to
be insured under such additional life policy, if said person underwent
such an examination prior to the issue of the original policy?"
The answer to this question you must yourself have resolved in the
affirmative in forming your determination to disapprove the form of pol-
icy which was presented to you. I am of the opinion that the correct
answer to your question is, as you apparently decided, in the affirmative.
The opinion of one of my predecessors in office to a former Commis-
sioner of Insurance, dated October 31, 1925, with which I am in accord
and upon which you state that you relied in making your determination,
requires an affirmative answer to your question unless the provisions of
St. 1926, c. 93, enacted since said opinion was written, have worked a
change in the law applicable to the facts which you state to have been
in existence in relation to the policy form which j^ou had before you and
as to which your question relates. I am of the opinion that said St.
1926, c. 93, has not changed the law as set forth in said opinion as con-
cerns the facts which you have stated.
St. 1926, c. 93, by amending G. L., c. 175, § 139, has in substance made
the provisions of G. L., c. 175, § 123, as amended, which require a pre-
136 P.D. 12.
scribed medical examination of a prospective insured ninety days before
the issuance to him of a policy of life insurance — with certain exceptions
not applicable to the instant matter — inapplicable to the exchange, al-
teration or conversion of a policy of life insurance made at the request
of the insured.
Upon the facts of the instant matter, as you have stated them in that
part of your communication quoted above, the poHcy to be issued under
the terms of the original policy submitted to you is not given in exchange
for the original, is not an alteration of the original, is not a conversion of
the original into a new form. It appears to be, as you have set the facts
forth, a new policy, separate and distinct from the original, involving, as
I have said, not an exchange, not an alteration, not a conversion of the
original, though springing from a contractual right arising from the terms
of the original, but is a new policy, additional and distinct from the origi-
nal. It is therefore not one of those forms of policies as to which the pro-
visions of said section 123, as amended, relative to medical expenses, are
not to apply under the provisions of said section 139, as amended.
Very truly yours,
Joseph E. Warner, Attorney General.
Secretary of the Commonwealth — Interpretation of Statute — Purchase of
Publications.
The Secretary of the Commonwealth, under St. 1920, c. 413, as amended,
may not purchase certain volumes of House Journals if they contain
only journals for a single year.
Nov. 19, 1930.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You have asked me the following question relative to
your authority in purchasing House Journals published by the Massa-
chusetts Historical Society.
"St. 1922, c. 164, provides for the purchase of copies of such journals
reprinted in volumes covering three years, more or less. I respectfully
ask your opinion as to my authority to purchase such volumes if they
cover only one year."
St. 1922, c. 164, reads as follows: —
"An Act reducing the number of copies of the journals of the House of '
Representatives of Massachusetts Bay from seventeen hundred and fif-
teen to seventeen hundred and eighty to be purchased and distributed
by the State Secretary.
Section one of chapter four hundred and thirteen of the acts of nine-
teen hundnnl and twenty is hereby amended by striking out, in the ninth
line, the word 'five' and inserting in place thereof the word: — three, —
and also by striking out, in the twelfth line, the word 'twelve' and in-
serting in place thereof the word: — seven, — so as to read as follows: —
Section 1. Whenever the journals of the house of representatives of
Massachusetts Bay from seventeen hundred and fifteen to seventeen
hundred and eighty, inclusive, in volumes covering three years, more or
less, shall be reprinted accurately by the Massachusetts Historical Society,
in the manner and form of volume one, seventeen hundred and fifteen to
P.D. 12. 137
seventeen hundred and seventeen, inclusive, now in the press, and ap-
proved by the secretary of the commonwealth, the secretary shall pur-
chase from the society three hundred copies of the said journals at a
price not exceeding two dollars and fifty cents a volume, but in no year
shall there be expended more than seven hundred and fifty dollars; pro-
vided that if the copies are plated, the plates shall be subject to use by
the commonwealth."
The words "more or less," as applied to quantity, ordinarily connote
a slight or unimportant variation from the numeral which they follow.
They are sometimes used as if synonymous with "about." As used in
connection with the context of the whole of the instant statute it can
scarcely be said that the Legislature intended these words to mean a
variation from the minimum number stated therein which would permit
of the purchase of a volume containing the House Journals of only a single
year.
It is obvious that the greater the number of volumes purchased the
greater would be the amount spent by the Commonwealth, and that if
each volume were to contain only the journals of a single year instead
of two years, for example, the cost to the Commonwealth would be double.
It appears to have been the legislative intent, as expressed in both the
statute of 1920 and in the amendment of 1922, to provide for the purchase
of yearly journals bound together.
I am of the opinion that you may not purchase the volumes in question
if they cover only a single year. If items of expense make the publica-
tion of volumes containing more than a single year impracticable, resort
should be had to the General Court for the enactment of new legislation
appropriate to new conditions.
Very truly yours,
Joseph E. Warner, Attorney General.
Division of Animal Industry — Tuberculous Cattle — Payments.
Payment under St. 1924, c. 304, may be made to the person who was the
owner of a cow killed because of tuberculosis, if the animal has been
inspected within six months prior to the killing and was proved to
the Director to have been free from disease at the time of inspec-
tion, whether the claimant has owned such animal for sixty days
before such killing or not.
Nov. 19, 1930.
Hon. William A. L. Bazeley, Commissioner of Conservation.
Dear Sir: — You request my opinion as to whether or not payment
should be made under the provisions of St. 1924, c. 304, in the following
case : —
"On November 5, 1929, a cow . . . was shipped into Massachusetts
from New Hampshire on a certificate of health approved by the livestock
authorities of New Hampshire and accepted by this Division. This cow
was released and sold to a man by the name of Novin, by whom it was
retained until on or about January 17, 1930, when the animal was sold
to W. C. Slocum, of Dartmouth.
On February 15, 1930, the cow was quarantined by the inspector of
animals at Dartmouth and on February 22nd it was condemned and
killed by order of this Department, the post-mortem examination prov-
138 P.D. 12.
ing it to be affected with tuberoulosis. Mr. Slocum claims indemnity
amounting to $25.00 on this animal."
St. 1924, c. 304, provides as follows: —
"Section 12A. If, under section eleven, any cattle affected with
tuberculosis are killed, the full market value thereof at the time of con-
demnation, not exceeding twenty-five dollars each, shall be paid to the
owner by the commonwealth if such animal has been owned by him for
a period of not less than sixty days, and has been owned and kept within
the commonwealth for six consecutive months, both periods being next
prior to its kilhng, or if it has been inspected within said six months'
period and satisfactory proof has been furnished to the director, by cer-
tificate or otherwise, that it was free from disease on the date of such
inspection, and if the owner has not, in the opinion of the director, by
wilful act or neglect, contributed to the spread of tuberculosis."
St. 1924, c. 304, provides for payment to be made to the owner of cattle
affected with tuberculosis which are killed in the following two cases: (1)
"If such animal has been owned by him for a period of not less than sixty
days, and has been owned and kept within the commonwealth for six
consecutive months, both periods being next prior to its killing"; and
(2) "if it has been inspected within said six months' period and satis-
factory proof has been furnished to the director, by certificate or other-
wise, that it was free from disease on the date of such inspection."
In my opinion, the provision that cattle which are to be paid for must
be owned by the claimant for a period of not less than sixty days is ap-
plicable only to the first case, as set forth in the preceding paragraph, and
has no relation to a case where cattle have been inspected within the six
months' period prior to the killing and satisfactory proof has been fur-
nished to the Director that they were free from disease on the date of
inspection.
I assume from the context of your letter that the cow in question
had been so inspected within the said period, and that proof of freedom
from disease at the time of such inspection, satisfactory to the Division
of Animal Industry, had been furnished to such Division. If such be
the facts, payment to the person who was the owner at the time the ani-
mal was destroyed would be legal.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 139
INDEX TO OPINIONS
PAGE
Aiiima] Industry, Division of; payments to owner of tuberculous cattle . 137
Boiler inspection ; certificate 41
Prosecutions; inspectors of plumbing 71
Boston, Police Commissioner for the City of; acting commissioner . . 77
City; date of establishment 101
Civil service; Boston; superintendent of construction in the department of
school buildings; deputy superintendents 34
City employees; examinations 47
Employees of the Division of Smoke Inspection of the Department of
Public Utilities 115
Non-citizen laborers of a municipality; dismissal 75
Somerville; commissioner and assistant commissioner of employment . 72
Springfield; health officer and laboratory consultant 67
Veteran; preference 69
Clerks, city and town; duties; marriage certificates 88
Constitutional law; trust funds; legislative powers as to transfer of legal
title 52
Contract for material and supplies; clause as to employment of labor . . 41
Corrupt practices; " political committee " ; initiative petition .... 43
County commissioners; care and support of persons suffering from tuber-
culosis 59
Cream; grades; label 62
Credit unions; officers; bonds 81
Defective delinquent; extradition; parole 98
Dental Examiners, Board of; license; suspension . . . . . .39
Divorce; death of libellant within two-year period; remarriage of libelee . 113
Eminent domain ; easements of light and air; land adjoining the State House 126
Extradition; defective delinquent; parole 98
Film, storage of; license; county hospital 48
Fish and game laws; licenses; convictions; seizures 128
Fisheries and Game, Division of; wardens; right to search boats without a
warrant; arrest 45
Great pond ; exclusion of public by ice company 38
Fishing; license 107
Health, local board of; burial permits; issuance by town clerks . . . 117
Rules and regulations; penalties 105
House Journals; purchase by the Secretary of the Commonwealth . . 136
Insurance; burglary insurance; transportation 124
Domestic fraternal benefit corporation; life members 76
Domestic stock company; increase of capital stock 119
Funeral insurance; service contract 63
Life policy; medical examination 135
Medical service; service contract 110
Jurors; fees; disability 113
Labor, employment of; contract between Department of Education and
Harvard College for sale of steam and electricity 41
Non-citizen laborers of a municipality; dismissal 75
License; film, storage of, by county hospital 48
Fish and game laws; convictions; seizures 128
Fishing in a pond other than a great pond 107
140 P.D. 12.
License — Con . page
Miniatuiv ,<>;()lf courses, etc., to be operated on Sunday 109
Piou'istcnMl dentist; suspension bj'- Board of Dental Examiners ... 39
Small loans; corporation; mode of doing business 34
Telephone cables laid in Cape Cod Canal 48
Warehouseman; places of business 132
Marriage certificates; delivery by city or town, clerk when the fifth day falls
on Sunday or a legal holiday 88
Medical examiner; authority to order removal of a dead body ... 50
Metropolitan Transit District; powers of trustees to borrow money . 37
Military service; discharge; gratuity 119
Mosquito control; appropriations by towns 42
Optometrist; right to use the title of "doctor" 70
Pension; veteran; appointive position in the service of the Commonwealth
for at least ten years 79
Veteran; Soldiers' Home 39
"Pohtical committee"; interpretation 43
Question of public policy for submission to voters; membership of the United
States in the League of Nations Ill
Unemployment insurance Ill
Retirement system of a city; pensioner; employment by legislative com-
mission 108
Securities; sale on installments; security . .93
Settlement; loss; soldiers' relief 56
Shellfish, laws relative to; enforcement; constables 55
Small loans; license; corporation; mode of doing business .... 34
Soldiers' relief; children of a deceased veteran; remarriage of mother . . 118
Widow of a veteran; remarriage 115
State employee; veteran; period of service 92
State Fire Marshal; investigation of fires; discretion 131
State highways; designation as "through way" by municipality . . . 112
State hospitals; support of inmate; guardian 44
State House grounds; approval of tablet; Legislature; Governor and Council 80
State police officer; duties; reward 91
Statute; effective date 102
Sunday Sports Law; miniature golf courses, etc.; license 109
Taxes; municipal tax collector; liabiUty for uncollected taxes . ... 64
Teachers' Retirement Law; assessments; part-time teacher .... 99
Substitute teachers; vacation schools 94
Telephone cables to be laid in Cape Cod Canal; licenses granted by the De-
partment of Public Works 48
Towns; appropriations; mosquito control 42
Traveling expenses of State officers and employees on county Inisiness . . 58
Trial justice; expiration of term; justice of the peace 97
Trust funds; legislative powers as to transfer of legal title .... 52
Tuberculosis patients; care and support; payment by county commissioners . 59
Unemployment insurance; question of public policy for submission to voters . Ill
Veteran; deceased veteran; children; soldiers' relief 118
Disabled veteran; preference; civil service 69
Pension; appointive position in the service of the Commonwealth for at
least ten years 79
Soldiers' Home 39
State employee; period of service 92
Voter; naval officer; residence 89
Party enrollment; establishment; appearance before a city or town clerk . 104
Warehouseman; license; places of business 132
Ways; motor vehicles; pedestrians 103
Northern Avenue, Boston; State highways 83
P.D. 12. 141
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 dehvery 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 com-
mitted, 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.
id) 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 fugitive 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.
(g) That the application is not made for the purpose of enforcing the collection
of a debt, or for any private purpose whatever; and that, if the requisition applied
for be granted, the criminal proceedings shall not be used for any of said objects.
{h) The nature of the crime charged, with a reference, when practicable, to
the particular statute defining and punishing the same.
(/) 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 given. 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 circum-
stances showing the commission of the crime charged, and that the accused perpe-
trated the same, must be shown by affidavits taken before a magistrate. (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
142 P.D. 12.
requisition, such complaint to be accompanied by affidavits to the facts consti-
tuting 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 apphcation. The
affidavit or affidavits should contain sufficient facts to make out a prima facie case
of guilt, and should not be a reiteration of the form of the complaint nor contain
conclusions of law.
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 apphcation 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.
750. 4-31. Order 2046.
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