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

Public Document No. 12 



Ctie Commonbiealtt) of egassacbusetts 



REPORT 



ATTORNEY GENERAL 



FOR THE 



Year ending November 30, 1931 




Public Document 



No. 12 



Cije CommonUJcaltJ) of ^assacftusettg 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1931 




/o ^ B - 5 r 



4(Li2^,1^,©.Eo^ 



Cfte Commonttiealtl) of 0^as0acl)U0ett$ 



Department of the Attorney General, 
Boston, January 20, 1932. 

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, 1931. 

Very respectfully, 

JOSEPH E. WARNER, 

Attorney General. 



C!)e Commontoealtj) of ^a00acl)U0etts 



DEPARTMENT OF THE ATTORNEY GENERAL, 
State House. 



Attorney General. 
JOSEPH E. WARNER. 



Assistants. 



Roger Clapp. 
Charles F. Lovejoy. 
Emma Fall Schofield. ^ 
Edward T. Simoneau. 
Stephen D. Bacigalupo. 
George B. Lourie. 
Louis H. Sawyer. 
Edward K. Nash. 
David A. Foley. 
Donald C. Starr. 
Sybil H. Holmes.- 

Chief Clerk. 
Louis H. Freese. 

Cashier. 
Harold J. Welch. 



Resigned December 17, 1930. 
■ Appointed December 29, 1930. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Year. 

General appropriation for 1931 $103,000 00 

Appropriation for small claims 5,000 00 

Supplemental appropriation 15,041 67 

Balances brought forward 4,241 08 



$127,282 75 



Expenditures. 

For salary of Attorney General $8,000 00 

For law library 618 65 

For salaries of assistants 47,770 14 

For salaries of all other employees . . 21,720 09 

For legal and special services 14,431 44 

For office expenses and travel 4,640 50 

For court expenses 1,552 93 

For small claims . 4,994 85 

For publication of opinions of the Attorneys General . . . 3,543 17 

Total expenditures $107,271 77 



Cl)c Commonttiealti) of ^a00aci)u$ett0 



Department of the Attorney General, 
Boston, January 20, 1932. 

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, 1931, to the number of 8,724 are tabu- 
lated below: 

Corporate franchise tax cases 1,239 

Extradition and interstate rendition 295 

Land Court petitions 118 

Land-damage cases arising from the taking of land : 

Department of Public Works 121 

Department of Mental Diseases 6 

Department of Conservation 1 

Department of Correction 3 

Metropolitan District Commission 54 

Metropolitan District Water Supply Commission 15 

Miscellaneous cases 762 

Petitions for instructions under inheritance tax laws 52 

Public charitable trusts 245 

Settlement cases for support of persons in State hospitals .... 6 
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 5,763 

Indictments for murder, capital cases 44 

Disposed of 33 

Now pending 11 



6 P.D. 12. 

THE DEPARTMENT OF THE ATTORNEY GENERAL. 

The work of the Department comprises the administration of certain 
criminal and of all civil legal matters affecting the Commonwealth and 
every department of State government. The former is effected by the 
Attorney General and the eight district attorneys^ with their assistants; 
the latter by the Attorney General and his staff of ten assistants. 

I. ADMINISTRATION OF JUSTICE BY PROSECUTION FOR CRIME. 

When a crime has been committed the machinery for securing justice 
requires several operations. Detection and identification of the criminal 
must first be had; next his apprehension; then prosecution; and, if guilty, 
correction by fine or imprisonment. The first two are functions of the 
pohce, the last is the function of penal, probation and other officers. 
Prosecution for lesser crimes, called misdemeanors, is had in district and 
municipal courts, and for graver crimes, called felonies, in the Superior 
Court. In the broad field of prevention and suppression of crime and law 
enforcement, the offices of the Attorney General and of the district at- 
torneys have to do only with that phase which deals with prosecution, 
and then only of such crimes (felonies or misdemeanors appealed from the 
lower courts) as are tried in the Superior Court, 

Except for prosecution of certain violations of law specially charged to 
the Attorney General by statute, prosecution for crime is the duty of the 
district attorney in whose district it occurs. The district attorneys, 
elected by the people of their several districts are the special agencies 
for this function. They and their assistants confer with the Attorney 
General four times a year. The common purpose this year has been 
prompt despatch of business. It has been said that one factor in the 
prevalence of crime is the calculation of the criminal on congested dockets, 
enabling delay to his advantage. In Massachusetts prevalence may not 
be so attributable, for the records of the district attorneys instance swift 
trials and practical clearance of triable cases from their dockets. 

Mr. Bishop (Middlesex) reports that 585 cases were pending on Novem- 
ber 30 (263 felonies and 327 misdemeanors). In 311 of these cases, how- 
ever, defendants have not yet been apprehended. One capital case is 
awaiting trial. Arrangements were effected for disposition of all triable 
felonies and misdemeanors in the month of December, assuring practical 
clearance of the docket for the beginning of 1932. 

Mr. Cregg (Essex), that no case remained at the termination of any 

1 Northern District, Warren L. Bishop, Wayland. 
Eastern District, Hugh A. Cregg, Mcthuen. 
Southern District, William C. Crosslcy, Fall River. 
Southeastern District, Winfield M. Wilbar, Brockton. 
Middle District, Edwin G. Norman, Worcester. 
Western District, Thomas F. Moriarty, Springfield. 
Northwestern District, Joseph T. Bartlett, Greenfield. 
Suffolk District, William J. Foley, 



P.D. 12. 7 

sitting of the court except by order of the court. He cites one instance 
where a serious crime was committed and there was indictment, trial and 
sentence, all within six days. 

Mr. Crossley (Barnstable, Dukes, Bristol, Nantucket), that he has 
disposed of approximately 2,000 cases during the year, and that about 
250 cases of felonies and misdemeanors, covering the four counties, are 
now pending. (These include cases where the defendant has been already 
defaulted or where he has not yet been apprehended.) Six murders have 
been committed in the district since July. Celerity of justice was evi- 
denced here, when, in November, exactly seventeen days after a robbery 
at gunpoint and fracturing of the skull of the victim, two defendants were 
apprehended, indicted and sentenced to State Prison, one for life and the 
other for eighteen to twenty years. 

Mr. Wilbar (Norfolk and Plymouth), that all dockets are current cases — 
6 felonies and 25 misdemeanors in each county. 

Mr. Norman (Worcester), that, as of November first, 42 cases were 
pending (14 felonies, in which 5 have already pleaded guilt, and 28 mis- 
demeanors, in which 19 have already pleaded guilt). 

Mr. Moriarty (Hampden and Berkshire), that there were pending on 
November 30 in Hampden County 127 cases, of which 11 were felonies, 
including a capital case, and the balance misdemeanors; in Berkshire, 
50 cases, 9 of which were felonies; that substantially all the indictments 
returned in the year ending November 30 will be disposed of within thirty 
days. 

Mr. Bartlett (Franklin and Hampshire), that in Franklin County there 
are practically no cases for trial and at the next term only one felony and 
misdemeanor for sentence; and in Hampshire County only 3 felonies and 
4 misdemeanors, with trials pending. Evidence of despatch of justice was 
exampled here when defendants were apprehended the very day of their 
crime, indicted the next, and four days later sentenced to from three to 
five years in State Prison. 

Mr. Foley (Suffolk), that in this district, where the large population 
causes a constant reception of cases, and their number and classification 
not to be of helpful recitation, he has by continuous prosecutions in con- 
current sessions effected clearance of every case capable of disposition. 

The list of capital cases in detail is annexed, page 24. 

Recommendations of the District Attorneys. 

1. That trial of criminal cases he expedited by providing that in a case where 
a defendant may elect to waive a jury trial such defendant must exercise such 
waiver within three days after entry of complaint on appeal or three days 
after arraignment on indictment. 

St. 1929, c. 185, amending G. L., c. 263, § 6, provided that defendants 
in criminal cases other than capital, might elect under certain circum- 



8 P.D. 12. 

stances to be tried by the court instead of by a jury by filing a waiver of 
right to jury trial "when called upon to plead, or later." If there might 
be early exercise of such election, the disposition of cases would be facili- 
tated. Such requirement may be effected by amending said section by 
striking out, in the tenth line, the words "when called upon to plead, or 
later and" and by inserting the words "within three days after entry of 
complaint on appeal in the superior court or within three days from ar- 
raignment on indictment or thereafter upon motion in writing with the 
consent of the district attorney any time," and by striking out the words 
", but not, however, unless all the defendants, if there are two or more, shall 
have exercised such election before a jury has been impanelled to try any 
of the defendants," and by inserting the words, "If, however, there are 
two or more defendants involved in the same complaint or indictment the 
right to elect to waive trial by jury shall depend upon the unanimous 
election of the defendants so involved." 

2. That date of returns from clerks of courts of standing of criminal busi- 
ness he changed from September 30 to November 30. 

Unless statistics can be made serviceable the value of their compilation 
is negligible. When out of date before they are assembled, or if classifica- 
tions are inappropriate, they are capable of gross misinterpretation, and 
may be cited to prove anything. Upon statistics pubhc opinion and 
legislation are based. They ought, therefore, to be as accurate, as con- 
temporaneous and as uniform in data and in basis of crime index as possible. 
Our statutes require clerks of courts to make returns to the Secretary of 
State of the civil and criminal business of the Superior Court as of June 
30,^ and to the Commissioner of Correction "of all criminal cases com- 
menced in the superior court, and of all criminal cases entered therein on 
appeal during " the year ending September 30.^ These two sets of criminal 
statistics are compiled within three months of each other; the second set 
portrays the status two months prior to the termination of the State's 
departmental year and three months before the end of the regular calendar 
year. A considerable number of cases is usually disposed of at sittings of 
the court in October and November. Changing the date from Septem- 
ber 30 to November 30 to conform with the end of the State's fiscal year 
would more understanding^ portray the annual registry of criminal busi- 
ness in volume and disposition. 

To effect such change strike out the word "October" in the first line 
of G. L., c. 124, § 8, and insert the word "December," and strike out the 
word "September" in the fourth line and insert the word "November." 

Uniformity of returns, in data and classification, is being effected by 
careful study, and through administrative agencies, which does not require 
the invocation of legislation. 

1 G. L., c. 221, § 24, amended by St. 1927, c. 64, St. 1928, c. 163. 
' G. L., c. 124, § 8. 



P.D. 12. 9 

II. ADMINISTRATION OF CIVIL BUSINESS. 

Of the great number of cases in which consideration by courts, Federal 
or State, was requisite, only those with final termination already had or 
to be had in the highest courts are noted. 

A. Cases Decided During the Year. 

In the Federal Courts. 

1. United States Supreme Court. 

2. United States District Court. 

3. Interstate Commerce Commission. 

The contentions of the Commonwealth were wholly sustained in the 
only two cases requiring recorded decisions before these two courts V 
and partially in the only one proceeding before the Commission. ^ 



' Slate of Connecticut v. Commonwealth of Massachusetts. After almost continuous proceedings since it 
was begun January 3, 1928, the United States Supreme Court, on February 24, 1931, dismissed the bill of 
complaint of Connecticut to prevent Massachusetts from using the waters of the Ware and Swift Rivers 
for imperative water supply of the people of Boston and the Metropolitan District, — a case of major 
importance both in assuring source of pure water to the population and in assuring public works approxi- 
mated at $65,000,000. 

2 Btankenburg v. Commonwealth. The United States District Court dismissed petition for writ of habeas 
corpus for release from jail to which the petitioner had been committed by order of a probate court for 
contempt by obstructing justice through the commission of fraud in attempting to defeat a certain will. 
Later attempt to appeal was refused. (Previous to commitment to jail, after decision in 272 Mass. 25, 
upholding the probate court in adjudging contempt, writ for certiorari was denied by the United States 
Supreme Court March 2) (283 U. S. 819). 

3 Ex parte 103 (petition of the railroads for rate increases). Upon authority of the Governor, this de- 
partment opposed, as representing the Commonwealth, the application of the rail and water carriers for 
a general 15% increase in all rail and rail-water interstate and international freight rates and charges. 
The Interstate Commerce Commission denied the application October 16, 1931. (Assistant Attorney 
General Starr appeared at hearings in Portland, Maine, and in Washington, D. C.) 

The Commission recognized the weakened confidence in railroad securities due in part to the inability 
of some of the carriers to meet fixed charges under present conditions and in part to the industrial situa- 
tion, with which the transportation systems of the country are inextricably bound up, and which, if not 
averted, might further disturb an "already tremendously shaken financial situation." The Commission 
suggested an alternative plan, as a temporary measure only, for certain specified rate increases allowable 
upon acceptance by the carriers and on submission by them of a detailed working plan by December first. 
In brief, the plan provided for applying the proceeds of the increased rates; part for aid to carriers unable 
to meet their interest charges; the balance, if any, to be returned to the contributing carriers from time 
to time in proportion to their contributions. Increased rates were expressly denied upon commodities 
such as staple agricultural and mill products, cotton in bales, cotton linters, noils and regins, hogs, logs 
and other commodities which are transported into the Commonwealth in considerable quantities. 
The allowable increases are on commodities such as coal, pulp wood, lumber, box, crate and cooperage 
materials, and products of mines (increase of $3 a car) ; pig iron, petroleum, rough, finished and artificial 
stone (an additional $6 a car) ; certain fruits and vegetables, gasolene, lubricating oils and brick (increased 
charge of one cent per hundred pounds). The Commission stated that its plan is "designed to avoid im- 
posing burdens on industry which cannot reasonably be borne under present conditions . . . and to 
disturb business conditions as little as possible by preserving very generally existing rate relations." The 
contention of the Commonwealth for preservation of existing rate relations so vital to our people and to 
our industries, therefore, was sustained in some degree, and since the Commission indicates that such was 
its prime concern in making the recommendations, the intervention, by authority of Governor Ely, mini- 
mized the certain serious effect upon our industries, which the schedules originally proposed would have 
caused. 



10 P.D. 12. 

In the State Courts. 

1. Supreme Judicial Court. 

Sixteen cases invoked decision of the full court. In 14 the Common- 
wealth was sustained. They relate to a considerable number of topics — 
initiative and referendum, ^ taxation,'- liability of towns to the Common- 
wealth for support in State institutions of minors settled in such towns, ^ 
powers of departments,* and others. ^ 

1 Yo7it V. Secretary of the Commonwealth, Mass. Adv. Sh. (1931) 1059. Dismissed a mandamus to com- 
pel Secretary of State to cause referendum on St. 1931, c. 122, act providing a program for the accelera- 
tion of State highway and building construction, and for temporary financial relief to cities and towns by 
the issue of short-term notes and proceeds of an increase in the gasolene tax. 

2 First National Bank, Trustee, v. Tax Commissioner, Mass. Adv. Sh. (1931) 667. That gains from sales 
by a trustee under a revocable trust might, for income tax purposes, be determined on the basis of cost 
to the creator of the trust. 

Kirwin v. Attorney General, Mass. Adv. Sh. (1931) 753. That a valid charitable trust had been created 
by the residuary clause under a certain will and that the power of appointment to charities, left to the 
executors by name, could be exercised by an administrator with the will annexed. 

Central Trust Co. v. Howard, Mass. Adv. Sh. (1931) 849. That the fact that a bank had filed a waiver 
under the special provisions of St. 1930, c. 214, does not prevent the collection of a tax previously assessed. 

Worcester County National Bank v. Commonwealth, Mass. Adv. Sh. (1931) 1003. Affirmed decree of a 
probate court that a trust fund given by a man to his wife in consideration of marriage, the principal of 
which is payable only after his death, is taxable under the inheritance tax laws. 

Thomson Electric Welding Co. v. Commoiiwealth, Mass. Adv. Sh. (1931) 1107. That royalties received 
from patents must be included as income in determining the corporation excise tax; that this requirement 
is not unconstitutional. 

DeBlois V. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1931) 1763, to abate a tax 
assessed to trustees of a real estate trust upon the net income of the trust derived from rents for the use 
and occupation of real estate, on the ground that it was improperly assessed as an income tax and was in 
reality a real estate tax, and that taxation of the receipts as income would result in double taxation. 

Lee Higginson Safe Deposit Company v. Commonwealth, Mass. Adv. Sh. (1931) 1773. That bonds are 
not deductible as "real estate" in determining the value of a corporation's franchise taxable under G. L., 
c. 63, § 53 et seq., although such bonds are secured by a mortgage of Massachusetts real estate held by a 
trustee for the bondholders. 

3 Treasurer and Receiver General v. Inhabitants of the Town of Bourne, Mass. Adv. Sh. (1931) 995. That 
a town is liable for the support of a minor settled therein at the Massachusetts Hospital School if the father 
is financially able to pay for his support, and that the Commonwealth may proceed at its election either 
against the town or against the parents. 

* Standard Oil Co. v. Commissioner of Public Safety, Mass. Adv. Sh. (1931) 227. That it could not be 
ruled that a certain appellant from the local licensing authorities to the State Fire Marshal was not a 
"person aggrieved", there being evidence upon which it might have been found that appellant's property 
might be subject to fire hazard. 

Goldberg v. Commissioner of Civil Service, Mass. Adv. Sh. (1931) 337. Dismissed a petition to compel the 
Civil Service Commissioner to authorize reinstatement of a laborer who had become separated from the 
service by long-continued illness. 

Timmins v. Civil Service Commissioners, Mass. Adv. Sh. (1931) 1447. That the Civil Service Commis- 
sioners had power to hold an open competitive instead of a promotional examination, at least when so re- 
quested by the appointing power, and where only one applicant had presented himself for a promotional 
examination. 

Ott V. Board of Registration in Medicine, Mass. Adv. Sh. (1931) 1855. Reversed the decree of the board 
revoking the petitioner's registration because of its failure to allow the petitioner proper cross-examination 
•of the complaining witnesses. 

Ganim's Case, Mass. Adv. Sh. (1931) 2063. Sustained the findings of the Industrial Accident Board, 
in a workmen's compensation case, of no liabihty upon the Commonwealth as an employer. 

5 Old Colony Crushed Stone Co. v. Cronin et al., Mass. Adv. Sh. (1931) 1529. In a bill in equity to en- 
force a creditor's lien, against the security held by the Commonwealth for payment by the contractor and 
subcontractors for labor performed or furnished and for materials used or employed by virtue of the terms 
of a contract, where a bank intervener claimed moneys due under said contract assigned to it by the con- 
tractor as collateral security for a note, and where, after notice of said assignment, the Commonwealth, 
ignoring same, paid the contractors the sums purported to be covered by the assignment, and where, on 
appeal by the bank, the Commonwealth set up the provision in its contract prohibiting the assignment 
of any money payable under the agreement or of the contractor's claim thereto without the previous 



P.D. 12. 11 

B. Cases pending November 30, 1931. 

1. In the Federal Courts. 

United States Circuit Court of Appeals. 

There are two extradition cases which were tried in the United States 
District Court and later in the United States Circuit Court of Appeals, 
and which await decision.^ 

2. In the State Courts. 
Supreme Judicial Court. 
Nine cases ^ relating to taxes and departmental powers await decision; 

written consent of the commission executing the contract, it was held that "the payments . . . did not 
operate as a waiver of the provisions in the contract as to assignments of money payable under the con- 
tract"; that the provision against assignment "is a valid agreement binding upon the parties and upon 
any one undertaking to assert rights thereunder"; that "as the provision in the contract was valid and the 
assignment was unenforceable against the Commonwealth, the payment to the contractors after notification 
of the assignment was a discharge of its obligation under the contract." 

Hilton V. Hopkins, Mass. Adv. Sh. (1931) 717. 

Bahan v. Treasurer and Receiver General, Mass. Adv. Sh. (1931) 1S27. 

Both cases related to appointment of an administratrix, alleging existence of heirs, in place of the pub- 
lic administrator, who had been appointed, and discovery that the alleged heirs were not in fact heirs. 
In the former case, it was held that the probate court might not revoke the appointment of the adminis- 
tratrix, in the absence of fraud, in order that the public administrator might reassume administration. 
In the latter, on motion of the Treasurer and Receiver General to dismiss the appearance of the alleged 
heirs from the docket (so that the money might come to the Commonwealth's treasury), it was held that 
the probate court could properly determine whether or not persons were true heirs at any later stage of 
the proceedings, although having passed upon the heirship at an earlier stage. (Some $10,000 had been 
misappropriated, but was recovered from the surety company, which, after deduction of expenses, escheats 
to the Commonwealth.) 
Single Justice. 

Arute Bros. Inc. v. Lieutenant Governor and Executive Council. Dismissed mandamus to require the 
Executive Council (which had refused to approve a contract because of non-residence) to approve or dis- 
approve a contract with the Department of Public Works for construction of a State highway in Randolph. 

Coleman Bros. Inc. v. Commissioner of Public Work.-<. Dismissed petition for mandamus to Commis- 
sioners to award a contract. 

1 Lee Gim Bor v. Joseph L. Ferrari; Enftery ex rel. Huie Fong v. Thomas E. Bligh. 

2 Hultman v. Civil Service Commissioner. Whether members of the Boston police department, who have 
been suspended, may be reinstated without approval of the Civil Service Commissioner. 

Grant v. Department of Public Utilities. Whether a service charge for gas is permissible under the 
statutes. 

Hornblower et al. v. Tax Commissioner. Whether a certain distribution of stock on reorganization is 
taxable as a dividend or as a sale. 

First National Bank, Trustee, v. Tax Commissioner. Whether a trustee of a Vermont estate, resident 
here, may constitutionally be required to pay a tax on account of income payable to a Massachusetts 
beneficiary. 

Ness V. Tax Commissioner. Whether one having left the Commonwealth and being in itinere to his new 
home on January first is subject to the Massachusetts income tax for the preceding year. 

Ruth E. Madden, executrix and trustee, v. Charles J. Madden et als. Whether decree of the probate court 
that it was not the duty of a trustee to make payments to the guardian of an inmate for the board and 
support of his ward at a State hospital should stand. 

Davis V. Commissioner of Corporations and Taxation. Whether or not, under G. L., c. 65, § 13, where 
a trust has been created, the income payable to the settlor for life, with remainder in fee to B and B pre- 
deceases the life tenant, leaving by will the remainder to C, the tax is based upon the value of the remain- 
der as of the date of death of B or of the settlor. At the death of B the remainder interest was valued at 
about $145,000 and at death of settlor approximately $228,000, on which value the Commissioner of Cor- 
porations and Taxation assessed a succession tax, which determination of value was sustained by the 
Board of Tax Appeals and by the probate court. 

Worcester Bank & Trust Co. v. Commissioner of Corporations and Taxation. Whether or not decision by 
a probate court which upheld the Commissioner of Corporations and Taxation in assessing a tax upon a 
charitable trust where there was a possibility that a charity might eventually be carried outside of the 
Commonwealth, was proper. 



12 P.D. 12. 

seven have already been argued. The so-called Billboard Cases ^ (25 
cases consolidated into one case) are now before a master. 

Dunn V. Civil Service Commissioner. Whether a leave of absence granted to a poUce officer under civil 
service constituted a "separation from the service" as those words are used in the Civil Service Rules. 

1 At the State election of November 5, 1918, there was approved by a vote of 193,925 to 84,127 Article 
L of Amendments to the Constitution, which provides as follows: 

"Advertising on public ways, in public places and on private property within public view may be regu- 
lated and restricted by law." 

Pursuant to this power, the Legislature enacted St. 1920, c. 545. The statute required the Division of 
Highways of the Department of Public Works to "make regulations for the proper control and restriction 
of billboards and other advertising devices on public ways or on private property within public view of 
any highway, public park or reservation . . ." It provided that the Division should, before establishing 
or amending its rules or regulations, "hold duly advertised public hearings in the city of Boston and else- 
where in the commonwealth as it deems necessary or expedient"; also that cities and towns might further 
regulate and restrict the advertising devices within their limits, subject to the approval of the Division. 
It exempted from the operation of the statute and regulations thereunder signs advertising or indicating 
the person occupying the premises or the business transacted thereon, or advertising the property itself 
as for sale or to let, as well as signs on the property of or used by common carriers. 

Pursuant to the statute the Division of Highways promulgated rules on December 20, 1920; later 
superseded by other rules becoming effective July 1, 1921. In August and September, 1923, two public 
hearings were held on the subject of a proper regulation of outdoor advertising, as well as of the economic 
importance of the business. On January 24, 1924, the Commissioners promulgated a new set of rules and 
regulations, affecting between 75% and 90% of all outdoor advertising signs then existing in the Com- 
monwealth by requiring either their removal or their relocation in order to comply with the new limita- 
tions as to size of structures and distance from public ways, parks and other public places. Among the 
restrictions thus imposed were the provisions that no advertising devices should be permitted to be 
located nearer than 50 feet to a public way, nor nearer than 100 feet if of an area of more than 32 square 
feet, nor nearer than 300 feet if larger than 25 by 12 feet, and that no advertising device would be per- 
mitted "near certain public ways where, in the opinion of the division, having regard to the health and 
safety of the public, the danger of fire, and the unusual scenic beauty of the territory, signs would be par- 
ticularly harmful to the public welfare." 

In June, 1925, bills in equity were brought in the Supreme Judicial Court for Suffolk County by a large 
number of outdoor advertising interests, including General Outdoor Advertising Co., Inc., O. J. Gude Co., 
Thomas Cusack Co., Old Colony Advertising Co., John Donnelly & Sons, Springfield Advertising Co., 
R. C. Maxwell Co., Seeley & Company, Inc., Connors Poster Adv. Co., The Kimball System, Inc., F. H. 
Birch Co., Riley Advertising Ser\nce, Maurice Callahan & Sons, Donnelly Co. of Worcester, Hathaway 
Advertising Co., Fall River Poster Adv. Co., Lawler Bros. Poster Adv. Co., Woonsocket Poster Adv. Co., 
Standish-Barnes Co., Newburyport Poster Adv. Co., Lowell Poster Adv. Co., Lawrence Poster Adv. Co., 
Cloughly Sign Co., and Buchholz Company, against the Commissioners of Public Works praying that they 
be enjoined from proceeding against the complainants in any way under the rules and that all of the rules 
and regulations be declared unconstitutional. The court granted a temporary injunction against any 
interference with the plant and business of the complainants, which is still in force, and the cases, having 
been consolidated into one for convenience, were referred to a master, who heard the parties and their 
evidence on 114 days and took a view of advertising devices in different parts of the Commonwealth, 
travehng approximately 1,000 miles with counsel for that purpose. The master filed his report on June 2, 
1931. To this the Commonwealth had no objections. But objections and a motion to recommit were 
filed by the complainants, the outdoor advertising interests. Lengthy hearings were held in August 
before Mr. Justice Pierce of the Supreme Judicial Court, and in September the report was recommitted 
by the Justice to the master. 

Extensive hearings have been held before the master since, and he is now engaged in preparing with 
the assistance of counsel a supplemental report in accordance with the decree of recommittal. 

The issue involved is of nation-wide interest and importance. As the issue is the constitutionality of the 
statute and of the regulations, it is of the very essence that every material fact be presented to the court. 
With a record, as voluminous as is the record in these cases, and where twenty-five parties have attacked 
the validity of the statute, it is inevitable that it will take time to comply with the recent decree of the 
court, however persistent the .\ttorney General may be in continuing plea and effort for determination of 
the issue. 

The assistant attorney general who conducted the case for the Commonwealth continues to conduct it 
as a special assistant; an assistant attorney general is also devoting all of his time to the case. The Com- 
monwealth has never failed to be ready. The protraction of the case, however, appears to discount the 
right of the sovereign people to a determination of their will, thus disputed by these interests. Suffice 
to say that the Constitutions of Massachusetts and of the United States ensure to every person assertion 
and patient consideration of alleged constitutional rights regardless of partisan viewpoint. 



P.D. 12. 13 

III. STATUTORY SERVICES. 

Of the great number of varying services, required by many statutes, 
which comprise the department's routine, a few only are here noted. 

1. Small Claims. 

Under the act ^ enabling settlement of certain claims by the Attorney 
General upon finding of damages under $1000, 98 claims were filed, and 
32 were approved with a total award of $4,994.85. Of the 32 claims 17 
were the result of collisions with state-owned vehicles; the others arose 
out of defects in property of the Commonwealth, loss at State institu- 
tions, and other miscellany. Sixteen were rejected. Fifty are still pend- 
ing. The appropriation for the purpose is but $5,000. 

2. Defense of State Employees in Certain Suits against Them. 

Under the statute just effective ^ (G. L., c. 12, § 3, amended by St. 
1931, c. 458, § 1) requiring the Attorney General to defend State employees 
sued for personal injuries arising out of accidents while driving state-owned 
cars in the course of their duty and for payment of judgments up to 
$5,000, two suits have already been brought. 

3. Public Charitable Trusts. 

The principal consideration with respect to a charitable trust is the 
application of the trust to purposes most nearly like the original purpose in 
the event it may not longer be carried out according to its exact terms. 
Fourteen charitable trusts invoked such consideration this year. ' 

By St. 1931, c. 42, every trustee, incorporated or unincorporated, 
holding in trust property for the use of charitable purposes, whether such 
trust was created by will or inter vivos, must file reports yearly with the 
Department of Public Welfare. Corporations and well known welfare 
organizations can be reached for questioning. The statute does not indi- 
cate the mode of discovery of a trust created inter vivos, and where an 
individual is trustee. 

4. Public Administrators. 

The 57 public administrators in the Commonwealth filed their first and 
final accounts in 573 cases, with escheats to the Commonwealth from 
179 of $116,664.74. One pubUc administrator filed 325 of these accounts, 
with 122 of the paid escheats, amounting to $73,246.82. 

1 St. 1924, c. 395. 

2 September 10, 1931. 

' Of these, the most important was that of the Andover Theological Seminary, where, as a result of the 
decision of our court {Trustees of Andover Theological Seminary v. Visitors of the Theological I nstitution in 
Phillips Academy in Andover, 253 Mass. 256) that the Andover Theological Seminary could not merge 
with Harvard University, the seminary was closed for six years because the professors resigned, owing to 
their inability to subscribe literally to the doctrines of the Andover creed as understood in the early part 
of the nineteenth century, relief from the restrictions was decreed by the Supreme Judicial Court at nisi 
prius by modification which enabled Andover Seminary to retain its identity though joined with the 
Newton Theological Institution. 



14 P.D. 12. 

Court action was taken against two public administrators. Eight pub- 
lic administrators have no cases pending. The rest have 347 cases out- 
standing, with cash in hand of approximately $400,485.30. It is impossible 
to say how much of this, if any, will eventually escheat to the State, as 
the time for administration has not expired and the existence of heirs, 
claims of creditors, administration charges, etc., have not yet been de- 
termined. 

5. Institution of Prosecution for Alleged Violation of Banking Laws on 
Report of the Commissioner of Banks. 

G. L., c. 167, § 5, provides that the Attorney General shall forthwith 
institute prosecutions on report of the Commissioner of Banks. Prose- 
cutions were instantly instituted on receipt of reports, by invoking the 
service of the district attorney in whose district alleged violations 
occurred. 

6. Services Required by the Legislature. 

Services required by House Order relative to procedure in committal 
and discharge of alleged insane persons; ^ by Resolve relative to codifica- 
tion of laws relating to marine fisheries; - and by Resolve relative to ad- 
visability of providing means for facilitating reference to special laws 
relating to any particular city, town or other political subdivision of the 
Commonwealth by tables of changes, indices or otherwise.^ 

7. Industrial Accident Cases; Approval of Contracts, Deeds and Titles. 
The Department represented the Commonwealth in 36 contested claims 

for workmen's compensation made by employees of the Commonwealth 
under the provisions of G. L., c. 152, as amended; appeared in the Superior 
Court in the matter of 16 petitions and numerous intervening petitions to 
enforce liens against the security obtained on contracts as provided in 
G. L., c. 30, § 39, as amended; and filed 2 bills in the Superior Court in 
the nature of interpleader. 

There has been an appreciable increase in the number of contracts 
submitted to the Department for examination and approval as to form 
this year over the number submitted a year ago, as well as in the number 
of deeds and releases submitted for examination and approval as to form 
and title. 

8. Appearances for Departments in Petitions for Release from Their 

Custody. 

Only 3 of the 40 petitions for discharge were granted. 

' Assistant Attorney General Bacigalupo. 

' Assistant Attorney General Starr. 

• Assistant Attorney General Simoneau. 



P.D. 12. 15 

9. Applications of Other States for Return of Fugitives from Justice; 
Application of the Commonwealth for Return from Other States 
of Persons here charged with Offenses. 

There were 57 applications of other States. After examination, hearing 
and report 53 were found to be in proper form. The Commonwealth made 
238 applications to other States and the return of 234 fugitives for trial 
here was effected. Of these 101 persons were brought back on charges of 
desertion, non-support and neglect of wife and children. 

10. Opinions. 

Such opinions as are deemed to be of general interest are annexed. 

IV. OBSERVATIONS. 

In the course of consideration of matters of wide range either peculiar 
to this Department or to some one of the other nineteen departments of 
State government it serves, occasion for observations is afforded. 

1. That the recommendations in the excellent report of the special cojnmis- 
sion for rendering questions upon the ballot understandable, based in part on 
recommendations of the Attorney General in his last annual report, be given 
favorable action. 

Unless action be taken at this session, submission to the people of a 
constitutional amendment enabling simplification cannot be had before 
1936, and it cannot function before 1938. 

2. That the question of abolition of the death penalty be given study. 

3. That jury service for women in trials of civil cases be reconsidered. 

4. That with respect to settlement of small claims, the Legislature determine 
a policy as to recognition by the Attorney General of claims for property dam- 
age, as it has for personal injuries, occasioned by highway defect or by military 
operations. 

Claims arising out of accidents caused by defects in State highways, 
and resulting in property damage, have been rejected for the reason that 
the Legislature has indicated a policy of reimbursement solely for personal 
injuries. (G. L. c. 81, § 18.) Counties, cities and towns are now liable 
for bodily injuries and property damage sustained by persons while travel- 
ing on ways. (G. L., c. 84, § 15.) 

Similarly, the National Guard has authority to settle claims for property 
damage but not claims for personal injuries (G. L., c. 33, as amended by 
St. 1924, c. 465). Claims with proof of property damage, presented under 
section 140 to the Adjutant General, have been necessarily denied, and on 
subsequent presentation to the Attorney General under the Small Claims 
Act were rejected because of the limitation of the statute. 



16 P.D. 12. 

5. That the Legislature consider the creation of the position of title examiner 
in the Department to effect economy. 

Bills submitted during eight months by department heads for exami- 
nation of real estate titles and service incident thereto, for the payment 
of which it has been the practice to make provision in appropriations for 
land takings, have averaged approximately $1,600 per month. This 
recommendation was made several times by my predecessors. 

6. That provision be made for impartial examination and report by experts 
as to real estate values in land damage or betterment cases. 

Trial of cases against the Commonwealth discloses an amazing variance 
in the values of real estate in the opinion of experts — as low as $5,000 
and as high as $100,000 on the same parcel sometimes appears. 

The various real estate exchanges realize the danger of excessive verdicts 
from such testimony, since the consequent taxable burden must be borne 
by real estate. They are making a commendable effort to eliminate vari- 
ances of opinion as to land values whose extremes appear incredible to 
lay judgments. 

Similar variances in medical testimony as to sanity or insanity of persons 
charged with crime and as to injuries compensable under the Industrial 
Accident Laws were remedied by enactment of measures for impartial 
examination. 

If expert evidence is to be offered, it would seem fair that a general 
statement as to the values to be set by the experts should be filed pre- 
liminary to trial and that, if the variances were considerable, engage- 
ment of impartial experts be authorized. 

7. That the word "pauper^' be stricken out in the election laws. 

G. L., c. 51, § 1, provides that "every citizen twenty-one years of age 
or older, not being a pauper or person under guardianship," etc., "may 
have his name entered on the list of voters. ..." The ilse of the word 
" pauper " has been abandoned in laws relating to public welfare and pub- 
lic aid, and its retention gives rise to uncertainty and doubt. The change 
can be effected by striking out the word and inserting such description as 
the Legislature may deem appropriate. 

8. That section 3 of article XLVI of the Amendments to the Constitution 
be amended so that payments may be made under the Old Age Assistance 
Act to institutions privately controlled, caring for persons eligible to receive 
such pension, as well as to privately controlled institutions caring for the 
deaf, dumb and blind, now permitted. 

Aid under the Old Age Assistance Act is furnished to certain people sev- 
enty years of age or over who need assistance and who are possessed of cer- 
tain qualifications. In a number of cases these old people are in privately 
controlled charitable institutions. They have been in them for a number 



P.D. 12. 17 

of years, and due to management and facilities are cared for and sup- 
ported therein at much less expense to the State or the municipality than 
elsewhere. 

It has been brought to my attention that municipalities and the Com- 
monwealth doubt legality of payments to such persons because of resi- 
dence in such homes, and do not aid them lest the payments be deemed 
in aid of the institutions. Consequently, if any of such persons are to be 
aided, they must move to private homes, with less contentment, and 
with greater expense to a municipality than there would have been had 
they been allowed to remain where they were. 

The doubt is occasioned by the operation of section 2 of said article 
XLVI, which prohibits public money from being expended in aid of in- 
stitutions not publicly owned and controlled, and because the provisions of 
section 3, while exempting privately controlled hospitals, infirmaries and 
institutions for the deaf, dumb and blind from the operation of the 
amendment, do not exempt privately controlled charitable homes caring 
for and supporting elderly persons entitled to the benefits of the Old 
Age Assistance Act. 

Removal of this doubt may be effected by a constitutional amendment,^ 
extending to private institutions for aged persons the present authoriza- 
tion for expenditures of public moneys to private institutions for the 
deaf, dumb and blind. 

9. That when a person qualijies as surety in hail cases involving felony by 
real estate a lien shall he recorded against the real estate until the case is 
finally disposed of or until the court otherwise orders. 

This recommendation was made by one of my predecessors. Jay R. 
Benton, in 1926, and has been repeated since. Prosecution for disposing 
of or encumbering the real estate during pendency does not compensate 
the Commonwealth for defeat of the bail. 

10. That the so-called thrift accounts, such as Christmas, vacation and tax 
clubs, he segregated from other accounts so that by contract depositors may 
receive the same when completed, unhazarded by invocation of restrictions 
applicable to general deposit and drawing accounts. 

Recent inability of subscribers to Christmas clubs to make withdrawals 
after faithful compliance with agreements for deposit, because of invo- 
cation authorized by present statutes, of requirement of ninety days' 
notice for withdrawal of general deposits, occasions this suggestion. 

11. That hanks he prohibited from engaging in general brokerage business 
in securities and from selling to trusts or estates within their co?itrol securi- 

1 " Nothing herein contained shall be construed to prevent the Commonwealth, or any political division 
thereof, from paying to privately controlled hospitals, infirmaries, institutions for the deaf, dumb and blind, 
or institutions wherein are persons eligible to receive old age assistance, not more than the ordinary and reason- 
able compensation for care or support actually rendered or furnished by such hospitals, infirmaries or in- 
stitutions to such persons as may be in whole or in part unable to support or care for themselves." 



18 P.D. 12. 

ties in which they have an interest as principal, broker or underwriter, and 
that an officer of the hank he prohibited from becoming an officer of any corpo- 
ration engaged in the business of buying and selling securities. 

It seems to me that banks and trust companies have become engaged 
in pursuits foreign to their original purpose, such as deahng in securities 
and in the administration of estates and trust properties, and that banks 
and trusts should be restricted to their primary purpose. 

Crisis has demonstrated the general strength of savings banks. The 
quicker commercial banking is divorced from the opportunity of specu- 
lative ventures the better. Not to precarious economic vicissitudes, but 
to the sins of avarice and cupidity of some in high banking circles, who 
control managers of smaller banks, is directly traceable the plight of 
depositors in some of the closed banks throughout the country. The 
predicaments are man made. Bitter is the experience, but if vital truth 
and principle are realized and established, the experience will not have 
been in vain, though restitution of its material wastage may not be 
effected. 

12. That hanks be prohibited from drawing wills and legal documents 
which have nothing to do with hanking. 

There is no reason why a bank, any more than any other institution, 
should enjoy prerogatives peculiar to the legal profession. Every man 
a job and each man his own. 

13. That the protection of the Sale of Securities Act be extended to include 
in "securities" the term "investment contract." 

There are enterprises for investment purposes whose offerings are so 
phrased that in strict legal sense they do not come within the definition of 
"security," in G. L., c. IIOA, § 2 (c). Adding the words "investment 
contract," would bring them under regulation of the act. 

14. That the recodification and revision of the entire law relating to the 
sale of securities he prosecuted to completion. 

The Legislature recognized this need two years ago, when it directed 
the Department of Public Utilities to conduct an investigation and to 
report its recommendations for revision, improvement, codification and 
specification of the laws regulating the sale of securities. This report was 
made to the Legislature last year and was considered by the Committee 
on Banks and Banking, together with recommendations of the Attorney 
General, and various bills introduced by individuals during a lengthy 
series of hearings. Considerable time was spent by the Attorney General 
and the Director of the Division of Securities in studying the draft act 
proposed by the Department of Public Utilities. 

Massachusetts, in 1921, was one of the first States to enact so-called 
"Blue Sky" legislation. It has not been changed to any appreciable extent 



P.D. 12. 19 

since. The past ten years have been marked by many changes in the 
business of selhng securities. We should meet the changes which have 
been wrought in the security business during that period. It is vitally 
necessary that the laws relating to the sale of securities be revised and 
brought up to date. 

15. That the rights of the Director to suspend or revoke the license of a 
registered broker he extended to cover illegal sales of securities as well as fraudu- 
lent sales of securities without the necessity of a conviction in court. 

No security may be sold unless notice of intention to sell is filed with 
the Department of Public Utihties and the requested information is 
furnished. If, however, a registered broker sells without such compliance, 
his registration can not be revoked by the Director unless or until he has 
been convicted of a violation of the Sale of Securities Act in court. "Con- 
viction" as used in this chapter has been construed to mean final convic- 
tion after appeal, so that if a broker is convicted in the lower court and 
takes an appeal to the Superior Court, his registration can not be revoked 
until after a trial and conviction in that court. 

16. That no advertisement relating to the sale of a security may he inserted 
in any periodical, publication, market bulletin or tipster sheet except by a 
registered broker, and that no one, other than a registered broker, be permitted 
in any way publicly and generally to disseminate information and advice 
relating to securities. 

A present day evil is the dissemination of fraudulent, misleading 
information relating to securities. The so-called tipster sheets have aided 
the marketing of worthless securities or the market manipulations 
of speculators and market operators. The Director may revoke or 
suspend the license of persons who are registered with the Department of 
Public Utilities as brokers. If not so registered, there is no effectual means 
of regulation. It is most difficult to show that the person providing the 
information so benefits by the exploitations as to prove conspiracy. 

The Director of the Sale of Securities Division should be given un- 
equivocally and definitely the power to deal with the registration of a 
broker who practices fraud or deception in promoting securities, by giving 
advice to the general public concerning their value. Such power would 
not prevent the giving of advice to individuals but would prevent general 
and public dissemination of information, except by a registered broker, 
by any means whatsoever, whether through a newspaper, market bulletin, 
tipster sheet, circularization by letters or telegrams, or radio broadcasting. 
Until the right to advise or give general information regarding securities 
is limited to persons over whom there is an element of control, through 
revocation or suspension of licenses for wrongful use, the practice of broad- 
casting false and misleading information can not be effectively curbed. 



20 P.D. 12. 

17. That a commission representative of all groups he established to review 
and study the regulation of investment trusts and report its findings and 
recommendations to the Legislature. 

The past decade has witnessed a wide-spread and rapid growth of the 
type of financial institution which was httle used prior to this period — 
the investment trust or corporation. The earher investment trusts were 
mainly of the so-called management type and were sponsored in many 
instances by the leading banks and brokerage houses in the country. The 
stock in such trusts was sold to the general public chiefly upon the repre- 
sentation of the organizers and managers and their advertised ability to 
profit to the maximum from the general rise in security values. There 
were and are some trusts of the management type, which were and are 
properly, honestly and efficiently managed. The practically unlimited 
control over the fund of many trusts, however, was greatly abused by the 
managers. Gross and unreasonable profits were made by some of the 
trust managers and so-called insiders. These trusts were made the re- 
ceptacles for unloading vast amounts of unsalable securities owned or 
controlled by the managers of the trust or persons affiliated with them. 
Little or no information regarding the trusts was given to the stockholders. 
Their financial statements usually selected some date of greatest activities, 
oftentimes some months prior to the appeal for investment, though it was 
known at the time of appeal that the structure had vastly changed during 
the interim. To escape barefaced fraud these statements would carry a 
sufficient number of asterisks for small print subnote explanations of the 
purposely heavy typed emblazoned items on which they intended the 
investor should rely. 

Experience in investment trusts and trusteeships during the present 
episode has revealed the weakness of those which have not been con- 
servatively conducted. Investors, doubting their own judgment, turned 
to investment trusts in the belief that they were getting a diversified in- 
vestment; that the companies selected would be sound; that the trustees 
would use every precaution to keep a careful check on the affairs of the 
operating companies. They supposed that a "trust" would assure the 
degree of care and prudence commonly expected from a handler of trust 
funds. Unfortunately, tragic facts did not support the supposition. 

I believe that few, if the facts were known, had an advisory staff of 
statisticians to warn trustees as to the soundness of investments. Some 
investment trusts have seen the evil consequent to the appalling losses 
occasioned by such lack and are now advertising such equipment as a 
feature. If investment trusts are to pose as sound, prudent and expert 
investment houses, they should be required to have the equipment to 
justify such role. 

The Legislature recognized the possibility of evils and sought in some 
measure to prevent them. In 1929 it authorized the Director of the Sale 



P.D. 12. 21 

of Securities Division to require the filing of complete and adequate in- 
formation. This act was not sufficiently comprehensive to provide an 
adequate check upon the activities of investment trusts. 

More recently there has arisen in the security world a new type of 
investment trust or corporation, the so-called fixed or semi-fixed type. 
This type of investment trust was created with the intention of ehminating 
the evil of misuse of managerial authority of the earlier type of trust. 
The securities which may be purchased with the trust funds are speci- 
fically set forth in the trust indenture and the changes and conditions 
under which the securities may or should be sold are also so specifically 
provided. The chief advantage claimed by these trusts is that diversifi- 
cation of investment by a person of small means is permitted. The pro- 
visions of the 1929 act cover this type of investment trust as well as the 
management type but regulate only the rendition of necessary informa- 
tion. There are now no provisions whatever relating to the structure of 
these trusts. 

All institutions, other than investment trusts, to which the funds of the 
general pubHc are widely entrusted are subject to strict supervision by the 
State. Trust companies, savings banks, credit unions, and small loan 
agencies are all under the direct supervision of the Commissioner of Banks. 
Insurance companies, both stock and mutual, are under the direct super- 
vision of the Commissioner of Insurance. The amount of moneys of the 
general pubhc entrusted to investment trusts has steadily grown so that 
it is now comparable to that entrusted to banks or insurance companies. 
Many jurisdictions have passed laws or created agencies within the State 
government to regulate investment trusts and specifically prescribe many 
of the features of such institutions. Such regulations prescribe the amount 
of loading permitted to be included in the price of the securities of such 
investment trusts, the method of making distributions, limitations upon 
the dealings by such trusts in their own stock, and regulate other features 
of such investment trusts. In my opinion the entire subject of further 
regulation of investment trusts is one that merits extended study, con- 
sideration and action by the Legislature, and the only way in which it 
may be had intelligently, comprehensively and wisely is by a commission. 

18. That the matter of regulation of the -practice of short selling also he 
referred for exhaustive study to such a commission representative of all in- 
terests involved. 

Last year I earnestly recommended legislation prohibiting the lending 
to short sellers stock bought and sold for customers' accounts, and nar- 
rated the method by which purchasers of stock on part-payment plan were 
ruthlessly exploited. The president of the New York Stock Exchange has 
vigorously defended short selhng. It has been as vigorously denounced by 
many leading economists and financiers. The United States Senate has 



22 P.D. 12. 

taken cognizance of the situation in the resolution of Senator Capper 
promising, there, the rigorous investigation it deserves. 

19. That if there is to he a special commissioyi for consideration of milk 
regulations, such commission should consider the extent to which administra- 
tive practices fail to conform to the statutes and in what respects, if any, the 
statutes should he revised in conformance with these practices. 

For example, it is not customary to require retail dealers in milk to 
obtain permits for sale or delivery of milk from local boards of health, 
although G. L., c. 94, § 43, in terms, requires every "dealer in milk" to 
obtain such permit before selling the same. 

A part of the phraseology ^ of G. L., c. 94, § 15, has been recited as 
evidence of the legislative intent to empower local boards of health to 
establish grades or classifications of milk other than those already estab- 
lished by statute or by the Department of Public Health, although, in 
my opinion, there was no such legislative intent. The elimination of cer- 
tain words- would remove such ambiguity. 

20. That there he restored the liahility, removed in 1931, upon officers of 
husiness corporations for false material representations in statements or reports 
to the Commissioner of Corporations which they ''on reasonable examination 
could have known to he false. ^^ 

St. 1931, c. 313, § 1, amending G. L., c. 156, was passed to relieve officers 
from injustice or liability for errors in items of the statement despite sub- 
stantial accuracy of the whole statement.^ In giving this relief the statute 
also relieved officers, who would have been held liable under the former 
statute, from responsibility for misrepresentations which, on reasonable 
examination, they would have known were false. This responsibility was 
created in 1911. Under a decision,'* interpreting a statutory provision 
substantially the same as now appears in the present statute, the officers 
escaped liability if they were "men whose time was fully occupied with 
other business" and if the facts at time of misstatement had "escaped their 
recollection" although if they "had given the matter consideration, they 
would have remembered" the facts misstated. 

Certificates of condition are for the information of the public and the 
public have right to the truth. 

21. That agents and hrokers dealing in compulsory automohile insurance 
he required to keep hooks and records prescrihed hy the Commissioner of In- 
surance, to which the Commissioner or other puhlic officials charged with the 
responsihility of protecting the puhlic shall have access. 

The recent collapse of three companies dealing in automobile insurance, 
requiring receiverships and entailing losses to those insured in them and 

1 "the name of the grade as it is determined by such board." 

^ "as it is determined by such board." 

« United Oil Co. v. Eager Transportation Co., Mass. Adv. Sh. (1930) 2281. 

* Felker v. Standard Yarn Co. et ah., 150 Mass. 264 (1889). 



P.D. 12. 23 

to injured persons records a pitiful story. The activities of the third 
company more or less succeeded to those of the others. Practices, whether 
lawful or not, put in hazard that protection against losses purposed by the 
compulsory insurance law. One of these companies acquired a charter of 
an old Massachusetts mutual company which, by reason of its age, was 
exempted from the amount now required to be in a company's treasury 
in paid-in premiums before starting business. Instead of $100,000 only 
$50,000 was required. This is an example of how schemes may be effected 
"within the law." The insureds appear to have been passed along from 
one company to the other with resultant confusion as to which company, 
if any, carried the supposed coverages. Denial was made by each company 
of coverages in face of the fact that premiums were paid to someone pur- 
porting to represent some one' of them. Some of the agents and brokers 
appear to have been identified with more than one company in such manner 
as to suggest community of enterprise. They appear in some instances to 
have conducted business by pocket transactions. The victims who suf- 
fered most grievous treatment were the taxicab operators of whom, by 
reason of the nature of their business, it was easiest to take advantage. 
Government regulation of private business should be avoided as much as 
possible, but where ruthless practices prevail in matters where the people 
are required to encounter them their only recourse for protection is to their 
government. 

CONCLUSION. 

To the Assistant Attorneys General, to all others associated in the 
department, to the District Attorneys, members of pohce. State and 
municipal, upon whose fidelity, ability and co-operation depends the entire 
administration of the office of Attorney General, I express gratitude. 

Respectfully submitted, 

JOSEPH E. WARNER, 

Attorney General. 



24 P.D. 12. 

DETAILS OF CAPITAL CASES. 

1. Disposition of indictments pending Nov. 30, 1930: 

Eastern District (Essex County cases: in charge of District Attorney- 
Hugh A. Cregg). 
Daniel Manzeiu. 

Indicted September, 1916, for the murder of Yousefka Manzeiu, at Peabody, 
on Aug. 28, 1916; arraigned June 5, 1931, and pleaded not guiltj-; trial 
June, 1931; verdict not guilty by reason of insanity; thereupon committed 
to the Danvers State Hospital for life. 

Bernardo S. Thompson. 

Indicted September, 1930, for the murder of Katherine E. Wight, at Saugus, 
on July 16, 1930; arraigned Sept. 22, 1930, and pleaded not guilty; May 26, 
1931, retracted former plea and pleaded guilty to murder in the second degree, 
which was accepted; thereupon sentenced to State Prison for life. 

Middle District (Worcester County case: in charge of District Attorney 
Edwin G. Norman). 
Leon Trudeau. 

Indicted 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 dismissed; 
thereupon sentenced to State Prison for life. 

Northern District (Middlesex County cases: in charge of District Attorney 
Warren L. Bishop). 
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; motion 
for new trial and assignments of error denied and exceptions overruled; 
thereupon sentenced to death by electrocution, which sentence was carried 
out Oct. 22, 1931. 

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 allowed Feb. 14, 1931; March 6, 1931, retracted former plea and 
pleaded guilty to manslaughter, which was accepted; thereupon sentenced 
to State Prison for not less than ten years nor more than fifteen years. 

Raymond C. Oliver. 

Indicted April, 1930, for the murder of Mito Christo, at Natick, on March 14, 
1930; arraigned March 24, 1931, and pleaded not guilty; Oct. 27, 1931, 
nolle prosequi. 



P.D. 12. 25 

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 and assignments of error denied; thereupon sentenced to death by 
electrocution; July 1, 1931, sentence commuted by Governor and Council to 
imprisonment at the State Prison for life. 

Southeastern District (in charge of District Attorney Winfield M. 

Wilbar). 
Thomas G. Healey. 

Indicted in Norfolk 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; June 1, 1931, nolle prosequi. 

Paul Hurley. 

Indicted in Norfolk County, September, 1930, for the murder of Joseph P. 
O'Brien, at Brookline, on Aug. 3, 1930; arraigned April 6, 1931, and pleaded 
not guilty; trial June, 1931; verdict of guilty of murder in the first degree; 
thereupon sentenced to death by electrocution, which sentence was carried 
out Sept. 15, 1931. 

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

Indicted August, 1930, for the murder of Lucy Minasian on Aug. 3, 1930; ar- 
raigned Aug. 11, 1931, and pleaded not guilty; Dec. 2, 1931, retracted former 
plea and pleaded guilty to manslaughter, which was accepted; thereupon 
sentenced to State Prison for not less than ten years nor more than twenty 
years. 

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, Fung 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; thereupon 
sentenced to death by electrocution; June 3, 1931, sentence commuted by 
Governor and Council to imprisonment at the State Prison for life. 

2. Indictments found and dispositions since Nov. 30, 1930: 

Eastern District (Essex County case: in charge of District Attorney 
Hugh A. Cregg). 
Russell B. Noble. 

Indicted May, 1931, for the murder of Clara E. Ellis, at Haverhill, on Feb. 26, 
1931; arraigned May 25, 1931, and pleaded guilty to murder in the second 
degree; plea accepted; thereupon sentenced to State Prison for life. 



26 P.D. 12. 

Middle District (Worcester County case: in charge of District Attorney- 
Edwin G. Norman). 
Hany Harrison. 

Indicted August, 1931, for the murder of Samuel Hakala, at Winchendon, on 
June 9, 1931; arraigned Aug. 28, 1931, and pleaded not guilty; Nov. 2, 
1931, retracted former plea and pleaded guilty to manslaughter, which was 
accepted; thereupon sentenced to State Prison for not less than eighteen 
years nor more than twenty years. 



Northern District (Middlesex County cases: in charge of District At- 
torney Warren L. Bishop). 

Salvatore Colledanchise. 

Indicted May, 1931, for the murder of Esther Colledanchise, at Somerville, on 
April 18, 1931; arraigned May 8, 1931, and pleaded not guilty; May 20, 
1931, committed to Bridgewater State Hospital until further order of the 
court. 

Edward A. Nolan. 

Indicted December, 1930, for the murder of James Nolan, at Everett, on Nov. 
12, 1930; arraigned Dec. 2, 1930, and pleaded not guilty; Jan. 23, 1931, 
retracted former plea and pleaded guilty to manslaughter, which w^as accepted; 
thereupon sentenced to the house of correction for eighteen months. 

Leroy B. Skillings. 

Indicted June, 1931, for the murder of Catherine Skillings, at Dracut, on May 
22, 1931; June 12, 1931, committed to the Danvers State Hospital until 
further order of the court. 

Frank Sortini. 

Indicted September, 1931, for the murder of Severino Mercurio, alias, at Lexing- 
ton, on Sept. 11, 1931; arraigned Sept. 24, 1931, and pleaded not guilty; 
trial November, 1931; verdict of not guilty. 

John D. Wall, John J. Oliver and Walter Sousa. 

Indicted March, 1931, for the murder of Evangelista L. Bagni, at Somerville, 
on Feb. 24, 1931; arraigned March 19, 1931, and each pleaded not guilty; 
trial April, 1931; verdict as to each, guilty of murder in the second degree; 
thereupon sentenced to State Prison for life. 

Vito Michael Zarrilli. 

Indicted September, 1931, for the murder of Michael J. L. Lancelotta, at 
Cambridge, on Aug. 31, 1931; arraigned Sept. 18, 1931, and pleaded not 
guilty; Oct. 22, 1931, retracted former plea and pleaded guilty to man- 
slaughter, which was accepted; thereupon sentenced to State Prison for not 
less than ten years nor more than fifteen years. 



P.D. 12. 27 

Paul Zaverchenko, alias. 

Indicted February, 1931, for the murder of Mary Zaverchenko, at Cambridge, 
on Jan. 15, 1931; arraigned Feb. 5, 1931, and pleaded not guilty; March 3, 
1931, retracted former plea and pleaded guilty to manslaughter, which was 
accepted; thereupon sentenced to State Prison for not less than seven years 
nor more than ten years. 

Southeastern District (in charge of District Attorney Winfield M. 

Wilbar). 

James F. Tevlin and William A. Callahan. 

Indicted in Plymouth County, February, 1931, for the murder of Riscala G. 
Khoury, at Brockton, on Sept. 17, 1930; March 27, 1931, nolle prosequi as 
to both, because of insufficient evidence to convict. 



Southern District (in charge of District Attorney WiUiam C. Crossley). 

Louis Ramos. 

Indicted in Bristol County, in November, 1931, for the murder of John D. 
McKinnon; committed to the Bridgewater State Hospital for observation 
Nov. 16, 1931. 

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

Abraham Goldenberg. 

Indicted January, 1931, for the murder of Lillian Franks, on Jan. 9, 1931; 
arraigned Jan. 22, 1931, and pleaded guilty; March 30, 1931, retracted former 
plea and pleaded guilty to murder in the second degree, which was accepted; 
thereupon sentenced to State Prison for life. 

William Paananen. 

Indicted June, 1931, for the murder of Marciano Caggiano, on April 15, 1931; 
June 30, 1931, committed to the Bridgewater State Hospital as insane. 

Orrin L. Taylor, alias. 

Indicted February, 1931, for the murder of Theodore Chychuk, on April 26, 
1927; arraigned March 3, 1931, and pleaded not guilty; April 3, 1931, re- 
tracted former plea and pleaded guilty to murder in the second degree, which 
was accepted; thereupon sentenced to State Prison for life. 

. Michael J. Walsh. 

Indicted October, 1931, for the murder of Honora A. Walsh, on Sept. 18, 1931; 
arraigned Oct. 23, 1931, and pleaded not guilty; Nov. 19, 1931, adjudged 
insane and committed to the Bridgewater State Hospital. 



28 P.D. 12. 

Western District (in charge of District Attorney Thomas J. Moriarty). 

Jesse H. Oilman. 

Indicted in Hampden County, September, 1931, for the murder of Carrie 
Oilman, at Springfield, on June 3, 1931; arraigned Oct. 6, 1931, and pleaded 
not guilty; Dec. 2, 1931, retracted former plea and pleaded guilty to murder 
in the second degree, which was accepted; thereupon sentenced to State 
Prison for life. 

Lucjen Ochocki, alias. 

Indicted in Hampden County, May, 1931, for the murder of Mike Krol, at 
Westfield, on May 1, 1931; arraigned May 18, 1931, and pleaded not guilty; 
June 26, 1931, retracted former plea and pleaded guilty to murder in the 
second degree, which was accepted; thereupon sentenced to State Prison for 
life. 

3. Pending indictments and status: 

Northern District (Middlesex County cases: in charge of District At- 
torney Warren L. Bishop). 

Wilfred F. Dart. 

Indicted September, 1931, for the murder of Charles J. Bernard, at Newton, 
on July 13, 1931; arraigned Sept. 15, 1931, and pleaded not guilty; trial 
November, 1931; verdict of guilty of murder in the second degree; thereupon 
sentenced to State Prison for life; claim of appeal pending. 

James T. Garrick and Edward Consalvi. 

Indicted May, 1931, for the murder of James M. Kiley, at Somerville, on April 9, 
1931; arraigned Oct. 22, 1931, and each pleaded not guilty. 



Southeastern District (in charge of District Attorney Winfield M. 

Wilbar). 
Clarence H. Elhs. 

Indicted in Plymouth County, October, 1931, for the murder of Thomas A. 
Marsland, at Carver, on Oct. 4, 1931; not yet arraigned. 

Southern District (in charge of District Attorney William C. Crossley). 

William Brown. 

Indicted in Bristol County, February, 1919, for the murder of Annie Brown; 
arraigned Nov. 20, 1931, and pleaded not guilty. 

John Canuel and Luke Vaillancourt, alias. 

Indicted in Bristol County, November, 1931, for the murder of Marie Ann 
Gauthier; arraigned Nov. 20, 1931, and each pleaded not guilty. 



P.D. 12. 29 

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

Indicted August, 1931, for the murder of Wadislaw Filipiak, on Nov. 28, 1931; 
arraigned Sept. 11, 1931, and pleaded not guilty. 

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; thereupon sentenced to death by electrocution; Oct. 17, 1931, motion 
for new trial allowed. 

Western District (in charge of District Attorney Thomas F. Moriarty). 
Joseph Pulara. 

Indicted in Berkshire County, July, 1929, for the murder of Lucey Pulara, at 
Pittsfield, on Jan. 25, 1929; arraigned July 14, 1931, and pleaded not guilty. 

John Siano. 

Indicted in Hampden County, December, 1922, for the murder of Nicholas 
Napoli, at East Longmeadow, on Sept. 18, 1922;^ arraigned Feb. IS, 1931, and 
pleaded not guilty; Oct. 8, 1931, admitted to bail on own recognizance. 



30 P.D. 12. 

OPINIONS. 



Department of Education — Veteran's Child — Reimbursement of Expenses. 

Room rent paid by a veteran's child may, under some circumstances, 
be the subject of reimbursement as an expense of such child as a 
student, under St. 1930, c. 263. 

Dec. 3, 1930. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked me the following question in relation 
to the provisions of St. 1930, c. 263, which provides reimbursement for 
various expenses incidental to the higher education of the children of 
certain veterans: — 

"I am writing to inquire if in your opinion we could allow reimburse- 
ment towards board in the case of a boy who lives at home." 

The applicable sections of said chapter 263 read thus: — 

"Section 1. The commonwealth, acting through the department 
of education, may contribute toward the expenses of the higher edu- 
cation of any child, resident in the commonwealth and not under sixteen 
years and not over twenty-two years of age, whose father entered the 
military or naval service of the United States from Massachusetts in the 
world war and was killed in action or died from other cause as a result of 
such service, between April sixth, nineteen hundred and seventeen and 
July second, nineteen hundred and twenty-one. 

Section 2. Any child who is eligible under the provisions of the pre- 
ceding section shall, upon becoming a student in any state or county 
educational institution or other educational institution approved in 
writing by the commissioner of education, be entitled to reimbursement 
by the commonwealth, in an amount not to exceed two hundred and fifty 
dollars in any year, for expenses for tuition, board and room rent, trans- 
portation, books and supplies necessary or incidental to his pursuit of 
study at any such state or county educational institution and for expenses 
for the above-named items except tuition in any other educational insti- 
tution approved as aforesaid. Such reimbursement shall be made to such 
child, or his guardian if any, on the presentation of vouchers therefor 
approved by the said commissioner." 

I am of the opinion that if the room rent for which reimbursement 
is considered is such as the child may legally be required to pay and does 
pay and the rental is actually necessary as an incident to the pursuit of 
his studies, reimbursement may properly be made. 

In each case the Commissioner must find the facts to be substantially 
as I have stated above before determining that reimbursement is due. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Department of Education — Towns — Transportation of School Children. 
The Department of Education has authority to determine the necessity 

of transportation of a school child to a town other than that of his 

residence. 
The authority to determine how much it shall pay towards the board 

of a school child in another town is vested in the school committee of 

the town of residence. 



P.D. 12. 31 

Dec. 4, 1930. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked my opinion upon the following ques- 
tions, which require an interpretation of G. L., c. 71, § 6, as amended 
by St. 1930, c. 48. The questions are as follows: — 

"1. Does the second sentence of section 6, 'Such a town shall also, 
through its school committee, provide, when necessary, for the trans- 
portation of such a pupil at cost up to forty cents for each day of actual 
attendance, and it may expend more than said amount,' give the Depart- 
ment of Education the right to decide when transportation is necessary? 

2. Under the last sentence in the first paragraph of section 6, 'When- 
ever, in the judgment of the department, it is expedient that such a pupil 
should board in the town of attendance the town of residence may, 
through its school committee, pay toward such board, in lieu of trans- 
portation, such sum as the said committee may fix,' may the department 
require the town to pay the same minimum charge as for transportation? 

3. Under the amendment to section 6 provided by St. 1930, c. 48, 'If, 
however, the distance between a pupil's residence and the school he is en- 
titled to attend under this section exceeds three miles, the town may, 
when necessary, be required by the department to expend for transporta- 
tion for such pupil a sum up to eighty cents in all for each day of attend- 
ance,' can the department require a town to expend for board in lieu of 
transportation a sum up to eighty cents for each day of attendance?" 

G. L., c. 71, § 6, as amended by St. 1930, c. 48, reads as follows: — 

"If a town of less than five hundred families or householders, according 
to such census, does not maintain a public high school offering four years 
of instruction, it shall pay the tuition of any pupil who resides therein 
and obtains from its school committee a certificate to attend a high school 
of another town included in the list of high schools approved for this 
purpose by the department. Such a town shall also, through its school 
committee, provide, when necessary, for the transportation of such a 
pupil at cost up to forty cents for each day of actual attendance, and it 
may expend more than said amount. If, however, the distance between 
a pupil's residence and the school he is entitled to attend under this sec- 
tion exceeds three miles, the town may, when necessary, be required by 
the department to expend for transportation for such pupil a sum up to 
eighty cents in all for each day of attendance. The department shall 
approve the high schools which may be attended by such pupils, and it 
may, for this purpose, approve a public high school in an adjoining state. 
Whenever, in the judgment of the department, it is expedient that such 
a pupil should board in the town of attendance the town of residence may, 
through its school committee, pay toward such board, in lieu of transpor- 
tation, such sum as the said committee may fix. 

If the school committee refuses to issue a certificate as aforesaid, appli- 
cation may be made to the department, which, if it finds that the educa- 
tional needs of the pupil in question are not reasonably provided for, may 
issue a certificate having the same force and effect as if issued by the said 
committee. The application shall be filed with the superintendent of 
schools of the town of residence, and by him transmitted forthwith to the 
department with a report of the facts relative thereto." 

1. The answer to your first question is in the affirmative, provided that 
the school committee has refused to issue the certificate mentioned in the 



32 P.D. 12. 

first sentence, and provided that application has been made to your de- 
partment. The second paragraph of section 6, as amended, provides that 
the department in that case may issue such a certificate having the same 
force and effect as if issued by the school committee. It would, indeed, 
be futile to give the department power to issue a certificate without the 
power to arrange for the transportation of the pupil to the school. The 
school committee could nullify the certificate by the simple expedient of 
saying that transportation was not necessary. Surely the Legislature 
never intended any such incongruous result as that. 

If the matter of a certificate to attend a high school in another town is 
properly before your department, then your department has power under 
the statute to determine for itself whether or not transportation is neces- 
sary. 

2. Inasmuch as the statute does not require a minimum charge for 
transportation, it is difficult to answer your question as worded. The 
department has power to compel the school committee to spend not more 
than eighty cents a day for transportation, if the school the pupil is to 
attend is more than three miles away, which is a maximum sum, not a 
minimum. If the pupil boards in the town where the school is located, 
it is the duty of the town to pay towards the board such sum as the school 
committee, in its discretion, may fix. The town does not pay the whole 
board ; it is only required to pay towards it, and the amount is left to the 
committee, not to the department. In my opinion, the power of the de- 
partment ends with deciding that it is expedient that the pupil should 
board where the school is located. 

3. I answer your third question in the negative. If the pupil is living 
at home, the department can compel the town to spend up to eighty cents 
a day for transportation; but, as stated in answer to question 2, if the 
department decides that the pupil should board where the school is located, 
then it has nothing to say as to the amount the town shall contribute 
towards the board. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Trackless Trolley Cars — Operators — Registration — License. 

Certain trackless trolley cars are required to be registered and their 
operators licensed, under G. L., c. 90, as amended. 

Dec. 4, 1930. 
Hon. Frank E. Lyman, Commissioner of Public Works. 
Dear Sir: — You have written me as follows: — 

" The Boston Elevated Railway Company is planning to experiment 
with so-called 'trackless trolleys,' and in connection with this proposition 
I would like your opinion on the following question: — 

Is a vehicle operated by the system known as 'trolley motor' or 'track- 
less trolley,' under the authority of G. L., c. 163, a motor vehicle operated 
in the manner and for the purposes set forth in G. L., c. 159, § 45, and a 
motor vehicle which must be registered and the operator of which must 
be licensed under G. L., c. 90?" 

The Attorney General does not pass upon questions of fact, but I as- 
sume, from information which I have received, that a vehicle which is 



P.D. 12. 33 

used as a trackless trolley car, though it derives its motive power from 
electricity transmitted by an overhead wire, is of a somewhat different 
construction from the vehicle commonly known as a trolley car, which is 
run upon rails. I am of the opinion that such a vehicle, adapted for 
operation under G. L., c. 163, is a "motor vehicle" within the definition 
of G. L., c. 90, § 1, as finally amended by St. 1930, c. 332, § 1, which 
reads as follows : — 

" 'Motor vehicle', automobiles, semi-trailer units, motor cycles and all 
other vehicles propelled by power other than muscular power, except 
railroad and railway cars and motor vehicles running only upon rails or 
tracks." 

A trackless trolley car is not explicitly within the enumerated exceptions 
of those motor vehicles which are not included within the definition of 
"motor vehicles" as used in said chapter 90. It is not, upon the factual 
assumption which I am constrained to make, a "railway" car, as that 
word is commonly used. It is treated as something different therefrom in 
the language of the legislative enactments relative to "trackless trolley- 
motor" or "trackless trolley" systems. The provisions of G. L., c. 163, 
concerning trackless trolley companies have in substance been in existence 
since 1916, and at no time has the Legislature in framing definitions of the 
words "motor vehicles" specifically indicated any intention to exclude 
trackless trolley cars from the scope of such definitions. That trackless 
trolley cars may be operated by street railway companies does not, in 
my opinion, make them "railway cars," as those words are used in the 
definition of "motor vehicles" in G. L., c. 90, § 1, as amended. 

G. L., c. 163, "Trackless Trolley Companies," in its applicable portion, 
reads as follows: — 

"Section 2. Any corporation organized as provided in this chapter, 
and any domestic street railway company may, as hereinafter provided, 
transport for hire passengers ... by the system known as trolleymotor 
or trackless trolley, and may build, equip, operate and maintain vehicles 
for such transportation, . . . and the authorities having jurisdiction 
over such public ways may grant permits for the operation of the said 
vehicles over such ways, and for the erection of poles, wires and other 
necessary structures within, over or under such public ways in the manner 
and to the extent provided by law for the granting of locations to street 
railway companies." 

Section 6 contains provisions relative to the securing of permits for 
operation in the public ways by companies operating trackless trolleys. 
Such trackless trollej^s, being motor vehicles, may, under certain circum- 
stances, fall within the provisions of G. L., c. 159, § 45, as amended, and 
its provisions applicable to licenses and permits must then be read in 
connection with the terms of G. L., c. 163, § 6, relative to the same subject, 
so that as far as possible their context may make an harmonious whole. 

It is apparent from the foregoing considerations which I have set forth 
that trackless trolley cars are to be registered and their operators licensed 
under G. L., c. 90, as amended. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



34 P.D. 12. 

Massachusetts Industrial Commission — Expenses — Advertising. 

The Massachusetts Industrial Commission has no authority to expend 
money for advertising space. 

Dec. 16, 1930. 

Hon. E. Leroy Sweetser, Commissioyier of Labor and Industries. 

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

"A question has arisen as to whether, under St. 1929, c. 357, the statute 
by which the Massachusetts Industrial Commission was established and 
its duties defined, the Commission has authority to enter into contracts 
involving the expenditure of public funds for the purchase of advertising 
space, except as such space may be represented by books, maps, charts 
and pamphlets which it seems especially authorized to prepare, print and 
distribute. 

Under the statute would the Commission be empowered to make ex- 
penditures for advertising space in newspapers or magazines?" 

The applicable portions of St. 1929, c. 357, establishing the said Com- 
mission, read: — ^ 

" Sectio7i 9 A. There shall be in the department a commission for the 
promotion and development of the industries and industrial, agricultural 
and recreational resources of the commonwealth, to be known as the Massa- 
chusetts industrial commission, in this and the two following sections 
called the commission. . . . 

Section 9C. The commission may conduct researches into industrial 
and agricultural conditions within the commonwealth, and shall seek to 
co-ordinate the activities of unofficial bodies organized for the promotion 
of the industrial, agricultural and recreational interests in the common- 
wealth, and may prepare, print and distribute books, maps, charts and 
pamphlets which in its judgment will further the purpose for which it is 
created, and, on behalf of the commonwealth, may accept contributions 
and, subject to the approval of the governor and council, may expend 
the same and also may expend such sums as may be appropriated by the 
general court to carry out the purpose of this and the two preceding 
sections." 

In my opinion, the Legislature has not indicated in said chapter 357 an 
intent to authorize the said Commission to expend the public funds for 
"advertising space in newspapers or magazines," or to make contracts 
looking towards such expenditure. The words of the statute empowering 
the Commission to "prepare, print and distribute books, maps, charts and 
pamphlets" do not appear to me to be susceptible of an interpretation 
which would include authority to pay for "advertising space," as those 
words are ordinarily used. 

Very truly yours, 

Joseph E. Warner, Attorney General.^ 



P.D. 12. 35 

Boiler Inspection — Certificate — Revocation. 

Lapse of time will not bar the exercise of the power to revoke a certificate 
of competency to inspect boilers if the holder made a wilfully false 
statement in his application for such certificate. 

Dec. 16, 1930. 

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

Dear Sir: — You have asked my opinion as to whether or not a cer- 
tificate of competency to inspect boilers may be revoked, after nine years 
from the date of its being given, by reason of untrue statements made by 
the holder upon his application for such certificate. 

G. L., c. 146, § 59, reads as follows: — 

"A certificate of competency to inspect boilers shall be revoked and a 
license as engineer or fireman or operator of hoisting machinery shall be 
suspended or revoked for incompetence or untrustworthiness of the holder 
thereof. A wilfully false statement in the application shall be sufficient cause 
for revocation at any time. If a certificate or license is lost or destroyed a 
new certificate shall be issued without examination upon satisfactory proof 
thereof." 

To warrant revocation of said certificate for the reason set forth in your 
letter it must appear that the application contained a statement which 
was in fact "false" and which was also "wilfully" made by the applicant. 

The statute specifically states that such a statement "shall be sufficient 
cause for revocation at any time." There appears to be no other legisla- 
tive enactment which controls or limits the phrase "at any time" as used 
in said section 59, nor any "statute of limitations," such as is mentioned 
in your letter, which prevents the exercise of the authority to revoke for 
the cause referred to after the passage of nine years. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Department of Education — Transportation — Residence of School Child. 

Under G. L., c. 71, § 68, a municipahty cannot be required to transport to 
school children residing upon land ceded to the United States. 

Dec. 26, 1930. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked my opinion as to whether the city of 
Gloucester may be required by your department to furnish transportation 
to school, under the provisions of G. L., c. 71, § 68, for the children of the 
keeper of the Eastern Point light station, who reside at such station. 

You have advised me that the distance from the children's residence to 
the public school in Gloucester, which the children would attend, is more 
than two miles. It is plain from the applicable language of G. L., c. 71, 
§ 68, which is as follows : — 

"Every town shall provide and maintain a sufficient number of school- 
houses, properly furnished and conveniently situated for the accommoda- 
tion of all children therein entitled to attend the public schools. If the 
distance between a child's residence and the school he is entitled to attend 
exceeds two miles, and the school committee declines to furnish transporta- 
tion, the department, upon appeal of the parent or guardian of the child. 



36 P.D. 12. 

may require the town to furnish the same for a part or for all of the dis- 
tance." 

that, under ordinary circumstances, your department would have the right 
to require such transportation. You direct my attention particularly to 
the fact that the children's place of residence is upon land of the United 
States, which I am informed is used for lighthouse purposes by the Federal 
government and was purchased in fee from the owner by the United States 
in 1829. Jurisdiction of said land was ceded to the United States by St. 
1831, c. 45, and by R. S. (1836), c. 1, § 2. The language used by the Legis- 
lature in ceding jurisdiction is such as to vest jurisdiction in the United 
States as long as the land is used for the purpose of keeping a lighthouse or 
erecting a monument thereon, with concurrent jurisdiction reserved to the 
Commonwealth only for the service of civil and criminal process. 

The reservation of concurrent jurisdiction in the Commonwealth being 
no greater, it is plain from the language of the Supreme Judicial Court in 
Opinion of the Justices, 1 Met. 580, as that is supplemented by the com- 
ments thereon contained in the opinion in Newcomb v. Rockport, 183 Mass. 
74, that the municipality in question is not required under the existing 
circumstances to provide school facilities for these particular children. 
It follows that the municipality cannot be required by your department to 
furnish transportation for them. See VI Op. Atty. Gen. 593. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Federal Prohibition Act — State Police Officers — Arrest without a Warrant. 

State police officers, as such, have no authority to arrest without a warrant 
persons violating any provision of the Federal Prohibition Act. 

Upon the repeal of the "Baby Volstead Act," so called, no authority is 
derived from G. L., c. 138, § 75, as amended, to arrest without a war- 
rant for transporting, distributing or delivering alcoholic beverages. 

Dec. 29, 1930. 
Gen. A. F. Foote, Commissioner of Public Safety. 

Dear Sir: — I am in receipt of a request for an opinion as to the powers 
of State police officers in the enforcement of certain laws relating to the 
liquor traffic. 

I. 

You ask first whether the words "police officer or constable, in his city 
or town," contained in G. L., c. 138, § 75, as amended by St. 1923, c. 435, 
are to be construed as including members of the State police " so as to allow 
the said State police officers the use of this chapter in the prosecution of 
offenders thereof." 

G. L., c. 138, § 75, as amended, reads as follows: — 

"A mayor, alderman, selectman, deputy sheriff, chief of police, deputy 
chief of police, city marshal, deputy or assistant marshal, police officer or 
constable, in his city or town, or, in the county of Dukes or Nantucket, 
the sheriff anywhere within his county, may without a warrant arrest any 
person whom he finds in the act of illegally selling, transpoi'ting, distribut- 
ing or delivering intoxicating liquor, and seize the liquor, vessels and imple- 
ments of sale in the possession of such person, and detain them until war- 
rants can be procured against such person, and for the seizure of said liquor, 



P.D. 12. 37 

vessels and implements, under this chapter. Such officers shall enforce 
or cause to be enforced the penalties provided by law against every person 
who is guilty of a violation of any law relative to the sale of intoxicating 
liquor of which they can obtain reasonable proof." 

Although the phrase "in his city or town" might seem to limit the 
meaning of the preceding words to police officers or constables of the 
various cities or towns, it should be noted that this phrase first appeared 
in the earlier form of the statute in 1855 (St. 1855, c. 215, § 13), before 
the creation of the State poHce. It is now provided by G. L., c. 147, § 2, 
that — 

"The state police shall have and exercise throughout the common- 
wealth the powers of constables, except as to service of civil process, and 
of police officers." 

I am accordingly of the opinion that State police officers have and may 
exercise the same powers as, by G. L., c. 138, § 75, as amended, are given 
to police officers and constables. 

The form of your first question, however, indicates some misunderstand- 
ing as to the full effect of this section 75, which constrains me to point 
out that the section itself creates no offense. 

Section 75 has existed in this exact form since 1904, at least save for 
the amendment of St. 1923, c. 435, which extended the exercise of the powers 
therein bestowed to the sheriffs of Dukes and Nantucket Counties. The 
section bestowed powers and imposed duties. The particular powers 
which were bestowed upon the public officials therein named were the 
powers of arrest without a warrant, of seizure of liquor, vessels and im- 
plements of illegal sale, and of detention thereof until warrants could be 
procured. Any of such officials were therein authorized to exercise the 
power — namely, to arrest without a warrant — upon finding any person 
in the act of illegal sale, transportation, distribution or delivery of in- 
toxicating liquor. The duties imposed upon them were those of enforcing 
and causing to be enforced penalties provided bj^ law against persons 
guilt}^ of violation of any law relative to sale of intoxicating liquor. The 
section did not constitute as illegal the selling, transporting, distributing 
or delivering of intoxicating liquor. It merely granted powers to enable 
proceedings against persons committing acts pertinent to acts which had 
been or were to be made illegal by other State laws. As pointed out, this 
law has existed in practically the same form for twenty-six years, fifteen of 
which were before the adoption of the Eighteenth Amendment. It par- 
ticularly related, therefore, to such sale, transportation, distribution 
and delivery of intoxicating liquors as were then or should thereafter by 
State law be made illegal. The fact that the power to seize was confined 
to seizure of implements for sale indicates that the acts of transportation, 
distribution and delivery of liquors so recited, and for which power to 
arrest without a warrant persons found performing such acts was be- 
stowed, related to transportation, distribution and delivery of liquors 
intended for illegal sale. The particular transportation alluded to was 
that which was an offense under R. L., c. 100, § 48. This section provided 
that — 

"No person shall bring any spirituous or intoxicating liquor into a city 
or town in which licenses . . . are not granted, with intent to sell it 
himself or to have it sold by another, or having reasonable cause to be- 
lieve that it is intended to be sold in violation of law; ..." 



38 P.D. 12. 

The recital of the acts of "transporting, distributing or dehvering" 
intoxicating liquor, in said G. L., c. 138, § 75, is a continuation of hke 
recital in the law forerunning section 75 (R. L., c. 100, § 86), wherein such 
recital was intended to be applied to effect the enforcement of said R. L., 
c. 100, § 48, in the protection of no-Hcense communities from the intro- 
duction of intoxicating liquors contrary to law. Section 48, however, 
was repealed by the recodification of the law in 1921, by G. L., c. 282, 
though the recodification retained the particular recital in section 75 of 
chapter 138. No other law was thereafter in existence prior to December, 
1924, specifically prohibiting the transportation of intoxicating liquors. 

It is to be noted that G. L., c. 138, § 75, contemplates that, on arrest 
without a warrant of any person found in the act of illegally selling, trans- 
porting, distributing or delivering intoxicating liquor and seizure of liquor, 
vessels and implements of sale, there be detention "until warrants can 
be procured against such person, and for the seizure of said liquor, ves- 
sels and implements, under this chapter '' (italics mine). As there is now 
no State law prohibiting transportation, it is obvious that no warrant 
therefor can be procured "under this chapter," namely, G. L., c. 138. 
Consequently, upon an arrest or seizure for such act a State police officer 
would be unable thereafter to procure a warrant, and would be a tres- 
passer. See Kent v. Willey, 11 Gray, 368 (1858). 

In December, 1924, G. L., c. 138, § 2A (the "Baby Volstead Act"), 
became effective. It created new offenses, namely, the acts of manufac- 
turing, transporting, importing and exporting intoxicating liquor without 
a Federal permit. This law has now been repealed, and these acts are 
no longer offenses under the State law. Whether or not the creation of 
the offense of transporting as one of the offenses recited in this law en- 
larged the words "transporting, distributing or delivering intoxicating 
liquor /or illegal sale/' in G. L., c. 138, § 75, during the life of the law, so 
as to include transportation of liquor without a Federal permit and irre- 
spective of its purpose, the situation today with respect to the powers of 
arrest without a warrant, seizure of implements for sale, and detention 
of implements until issuance of warrants, and with respect to the exercise 
of such powers as to persons found in the act of illegal sale, transportation 
or delivery of liquor for sale, under G. L., c. 138, § 75, as amended, is as 
it was after the repeal of R. L., c. 100, § 48, and prior to the effective date 
of the so-called "Baby Volstead Act." 

Therefore, since the only specific act of those named in the clause of 
section 75 authorizing action without a warrant which is now an offense 
against the laws of this Commonwealth is that of illegally selling intoxicat- 
ing liquor, the only powers which may be exercised by the State police 
under said clause pertain to said act, and are, namely, those of arresting 
without a warrant any person found in the act of selling intoxicating liquor 
illegally (that is, in violation of section 2 of said chapter 138), of seizing 
the liquor, vessels and implements of sale in the possession of such person, 
and of detaining them "until warrants can be procured against such person, 
and for the seizure of said liquor, vessels and implements, under this chap- 
ter." Furthermore, that it was the legislative intent to confine the powers 
recited in section 75 to the enforcement of the laws of this Commonwealth 
is apparent from the provision that the officer an-esting and seizing there- 
under shall detain the objects of the arrest and seizure until warrants can 
be procured "under this chapter." Consequently, it is my opinion that 
the word "illegally" in the fourth line of section 75 is to be construed as 
meaning "illegally by the laws of this Commonwealth." 



P.D. 12. 39 

The scope of the section has not been enlarged by reason of the enact- 
ment of Federal laws relative to sale of intoxicating liquor so as to include 
cases of sale in violation of Federal law, by the provision that "Such 
officers shall enforce or cause to be enforced the penalties provided by law 
against every person who is guilty of a violation of any law relative to the 
sale of intoxicating liquor of which they can obtain reasonable proof." 
This one of the several provisions in section 75 was enacted first in sub- 
stantially the same form in St. 1876, c. 162, § 14, and took the place of the 
provision of St. 1869, c. 415, § 57, which read: "The several officers afore- 
said shall enforce or cause to be enforced the penalties provided in this 
chapter, against every person guilty of any violation thereof of which they 
can obtain reasonable proof." St. 1869, c. 415, which confined enforce- 
ment of penalties to those provided therein, was by St. 1876, c. 162, ex- 
tended to enforcement of penalties for violations provided or to be pro- 
vided in other chapters. It is to be noted again that the violations of law, 
for the enforcement of penalties for which the duties were imposed, were 
confined to those of any law relative to sale, and that consequently violation 
of Federal laws relating to aspects or forms of liquor traffic other than sale 
are excluded at once from argument. It is my opinion that, just as the 
quoted provisions of the act of 1869 and of the act of 1876 referred only to 
enforcement of penalties for violations of laws of this Commonwealth/, so 
this provision now embodied in section 75 is confined to cases of such viola- 
tions and to violations of State law relating to sale, and is therefore not to 
be construed as conveying power or authority to enforce any Federal 
statute relating to liquor traffic. 

II. 

Your second question is as to "what is the power of a State police officer, 
under the Federal Constitution, who in the course of his duty either on the 
highway or in a raid comes upon a load of liquor in a vehicle or a liquor 
manufacturing still?" 

A. I shall assume that you wish to know of all powers vested in the 
State police in such circumstances, from whatever authority they may 
arise, and shall treat the question first in its aspect of involving violations 
of the National Prohibition Act. 

(1) As to what powers are given by the terms of the National Prohibition 
Act itself, I would refer you to an opinion rendered August 14, 1924 (VII 
Op. Atty. Gen. 506), by one of my predecessors in office. Honorable Jay 
R. Benton, to the then Commissioner of Pubhc Safety, with the reasoning 
and conclusion of which I concur. This opinion reads, in part, as follows : — 

"You request my opinion whether under section 26 of the Volstead Act, 
so called, members of the State police are given authority to seize vehicles 
in which intoxicating liquors are being transported and to arrest the person 
in charge thereof. 

The Act of October 28, 1919, c. 85, title II, § 26, called the 'National 
Prohibition Act,' provides, in part, as follows: — 

' When the commissioner, his assistants, inspectors, or any officer of the 
law shall discover any person in the act of transporting in violation of the 
law, intoxicating liquors in any wagon, buggy, automobile, water or air 
craft, or other vehicle, it shall be his duty to seize any and all intoxicating 
liquors found therein being transported contrary to law. Whenever intoxi- 
cating liquors transported or possessed illegally shall be seized by an officer 
he shall take possession of the vehicle and team or automobile, boat, air 



40 P.D. 12. 

or water craft, or an}' other conveyance, and shall arrest any person in 
charge thereof . . . .'" 

And on page 508 : — 

"It . . . seems to me that Congress by the use of the words ' any officer 
of the law,' in section 26 of the act, conferred power only on Federal officers 
and did not authorize State officers to act thereunder. . . . 

I am accordingly of the opinion that members of the State police, as such, 
have no authority or power to act under the National Prohibition Act. The 
police, however, are private citizens also, and, as such, may exercise such 
powers in apprehending violators of the Federal law as are shared by them 
in common with all other citizens." 

The Supreme Court of the United States, in Gamhino v. United States, 
275 U. S. 310 (1927), likewise arrived at the conclusion that the term "any 
officer of the law," used in section 26 of the National Prohibition Act, 
referred only to Federal officers, thus settling that question conclusively. 
No other provision of the National Prohibition Act purports to confer 
authority on State police officers, so that State police officers, as such, are 
not given any authority by the terms of the National Prohibition Act. 

There should not be lost sight, however, of the terms of U. S. Rev. Stat., 
§ 1014, which are incorporated into the National Prohibition Act by sec- 
tion 2 thereof, and which empower certain State officials to issue process 
for the apprehension of offenders against the laws of the United States. 
This statute reads : — 

"For any crime or offense against the United States, the offender may, 
by any . . . judge of a supreme or superior court, . . . mayor of a city, 
justice of the peace, or other magistrate, of any State where he may be 
found, and agreeably to the usual mode of process against offenders in 
such State, ... be arrested and imprisoned, ... for trial before such 
court of the United States as b}^ law has cognizance of the offense." 

It has been decided in Goulis v. Judge of District Court, 246 Mass. 1 
(1923), that a State magistrate is not required to act under these pro- 
visions, but may act at his option, and cause an arrest to be made accord- 
ing to the methods usually emploved in this Commonwealth. Likewise 
it was said in VII Op. Atty. Gen. 506, 507: — 

"It is well established that while Congress may confer power upon 
State officers, which the latter may exercise or not in their discretion, 
unless prohibited by State legislation, Congress cannot lawfully compel 
them to act. . . . Even if the statute specifically empowered members 
of the State police to act, they could refrain from exercising the powers 
so granted if they so desired." 

A State police officer has, then, such power as he may derive from any 
process which may issue under U. S. Rev. Stat., § 1014. The procedure, 
involving, even supposing the magistrate chooses to act, the making of a 
complaint, the issuance of a warrant thereon, and then a hearing to de- 
termine whether there is just cause for holding the accused for trial before 
the Federal court, would not be effective in most cases of transportation, 
owing to the time necessarily consumed in following it. But any power 
of a State police officer with relation to violations of the National Prohi- 
bition Act other than that derived from process issued under U. S. Rev. 
Stat., § 1014, just referred to, must find source, if at all, outside the terms 
of the act itself. 



P.D. 12. 41 

(2) Since the rendering of the opinion of the former Attorney General 
referred to above and of the decision in Gamhino v. United States, supra, 
the character of certain violations of the National Prohibition Act has 
been changed by an act of Congress which constitutes them felonies. This 
act of Congress (Act of March 2, 1929, c. 473; 45 Stat, at L., Pt. 1, 1446), 
otherwise known as the Jones Act, reads as follows: — 

"Be it enacted hy the Senate and House of Representatives of the United 
States of America in Congress assembled. That wherever a penalty or 
penalties are prescribed in a criminal prosecution by the National Pro- 
hibition Act, as amended and supplemented, for the illegal manufacture, 
sale, transportation, importation, or exportation of intoxicating liquor, 
as defined by section 1, Title II, of the National Prohibition Act, the 
penalty imposed for each such offense shall be a fine not to exceed $10,000 
or imprisonment not to exceed five years, or both: Provided, That it is 
the intent of Congress that the court, in imposing sentence hereunder, 
should discriminate between casual or slight violations and habitual sales 
of intoxicating liquor, or attempts to commercialize violations of the law. 

Sec. 2. This Act shall not repeal nor eliminate an}^ minimum penalty 
for the first or any subsequent offense now provided by the said National 
Prohibition Act." 

U. S. Comp. Stat. (1918), § 10509, provides: — 

"All offenses which may be punished by death or imprisonment for a 
term exceeding one year shall be deemed felonies." 

Thus, the manufacture, sale, transportation, importation and exporta- 
tion of intoxicating liquor in violation of the National Prohibition Act 
now constitute felonies under the laws of the United States. 

Mass. G. L., c. 274, § 1, defines "felony" in the following terms: — 

"A crime punishable by death or imprisonment in the state prison is 
a felony. All other crimes are misdemeanors." 

Mass. G. L., c. 125, § 11, provides that the State Prison shall be the — 

"general penitentiary and prison of the commonwealth where all male 
persons convicted of crime in a court of the commonwealth or in any court 
of the United States and sentenced bj' them according to law to solitar}' 
imprisonment and confinement in the state prison at hard labor shall be 
securely confined and employed at hard labor; ..." 
This section, first enacted by St. 1805, c. 113, existed in substantially the 
same form when St. 1852, c. 37 (now G. L., c. 274, § 1), was passed, and 
it might at first glance appear that the Legislature in enacting the latter 
statute intended to include within the definition of "felony" certain crimes 
against the United States. 

The provisions of Mass. G. L., c. 274, § 1, were first enacted by St. 
1852, c. 37, in pursuance of an order of the Senate directing the Committee 
on the Judiciary "to consider the expediency of defining 'felony' by 
statute." Previously, in June, 1851, one Stephen Carey had been tried 
in Cambridge for the murder of a station-house keeper, who was also a 
peace officer, whom Carey, in resisting arrest by him, had killed. Whether 
the killing amounted to murder or only to manslaughter depended upon 
whether the arrest was lawful or unlawful, and the court stated the com- 
mon-law rule that the arrest would not have been lawful unless the crime 
proved or suspected were a felony. In the opinion of the court, found in 
12 Cush. 246, Shaw, C.J., said (p. 252): — 



42 P.D. 12. 

"This is the old estabhshed rule of the common law, adopted and 
acted upon in this commonwealth, by which courts of justice are bound 
to be governed, until altered by the legislature; that anciently there was 
a broad and marked distinction between felony and misdemeanor, the 
former being attended at common law with forfeiture of all the offender's 
goods; that by the statutes of this commonwealth, and especially by the 
revised statutes, the line of distinction between felonies and misdemeanors 
was in a great measure obliterated, and in many instances the law regarded 
as misdemeanors offences of a greater moral turpitude than many felonies, 
yet it had not changed the rule in question; though perhaps it might be 
more wise in the legislature to make the rule in question applicable to 
offences measured by a different standard of aggravation, as by being 
punishable in the state prison, or otherwise." 

In pursuance of the Senate order above referred to, the Committee on 
the Judiciary on February 3, 1852, filed the following report : — 

"Felony, according to the common law, is defined, any offence which 
occasions a forfeiture of lands or goods. As such a forfeiture never takes 
place in this Commonwealth, the only way in which we can determine 
whether an offence is a felony or not, is by ascertaining whether the law 
of England made it so. The question is not a merely speculative one, 
because the right of officers and private persons to make arrests without 
warrant can only be determined by deciding whether the crime com- 
mitted was a felony. This is often a question of great practical importance. 
And as some offences not now felonious, are intrinsically more criminal 
than others which are, and as few officers have any means of judging, in 
many cases which actually occur, what is the legal character of the act 
committed, it seems important that a definition be given as a guide to 
them and others. In a recent trial for murder, in Middlesex County, the 
question, whether the prisoner's offence was murder or manslaughter, 
depended entirely on the decision of the question, whether the act which 
he was suspected of having committed was a felony or not, and conse- 
quently whether the officer whom he killed, was justified in attempting 
to arrest him without a warrant. 

Your committee, therefore, report the accompanying bill, which defines 
the word 'felony' in such a manner, that every one can understand it. 

S. E. Sewall, 
For the Committee. 

An Act to define 'Felony.' 
Be it enacted, etc., as follows: 

Any crime which now is or hereafter may be punishable by death, or 
imprisonment in the state prison, shall be considered felony; and no 
other crime shall be so considered." 

The act recommended by the report was approved in substantially the 
same form on March 15, 1852, as section 1 of St. 1852, c. 37. 

As appears from the report of the Committee on the Judiciary quoted 
above, the committee and the General Court in considering and enacting 
St. 1852, c. 37, were clearly confronted with the significance of the statute 
in its relation to the right to arrest without a warrant; and although the 
legislation arose from the need, then made evident, of clarifying the basis 
of justification for arrest without a warrant, it is nevertheless my opinion 



P.D. 12. 43 

that the General Court attempted to bring about such a clarification 
only in so far as such justification might rest upon the felonious character 
of a crime as imposed by the laws of this Commonwealth, and only by 
defining the limits of felony by the law of this Commonwealth. The 
General Court did not attempt to impose a felonious quality upon of- 
fenses against the United States, as such, or to adopt any classification 
of crimes which might be employed by the Congress, so that the mere 
fact that an offender against a Federal law may be incarcerated in our 
State Prison does not render his crime a felony by the law of this Com- 
monwealth. In this view of the scope of the statute it is not necessary 
for me to consider whether such an adoption would have been unconsti- 
tutional as to acts subsequently made felonies by Federal enactment. 
See Opinion of the Justices, 239 Mass. 606 (1921). 

By common law a private person is justified in arresting for a felony 
without a warrant, but only in cases of the actual guilt of the party ar- 
rested. Rohan v. Sawin, 5 Cush. 281 (1849). "But as to constables, and 
other peace-officers, acting oflficially, the law clothes them with greater 
authority, and they are held to be justified, if they act, in making the 
arrest, upon probable and I'easonable grounds for believing the party 
guilty of a felony," even although it afterwards appear that no felony has 
been committed. Rohan v. Sawin, supra, and cases cited; Commonwealth 
V. Carey, 12 Cush. 246, 251 (1853). 

The greater protection afforded to officers of the law in the premises is 
said in 2 Hale, P.C, page 85, to be given — 

"1. Because they are persons more eminently trusted by the law, as 
in many other acts incident to their office, so in this. 

2. Because that they are by law punishable, if they neglect their duty 
in it." 

Thus, this wider protection cloaks and justifies peace officers in the per- 
formance of the duties resting upon them as such officers — duties for 
the non-performance of which they would be punishable as derelict — or, 
in the words of the court in Rohan v. Sawin, supra, they are clothed with 
the greater authority when "acting officially." If no such duty exists, 
then, even assuming without discussion that the rule justifying arrest 
without a warrant for a felony may include Federal felonies, a State police 
officer in arresting without a warrant for a violation of the National Pro- 
hibition Act would not be "acting officially," and so would be acting 
without the justification of any power vested in him as a peace officer. I 
have already stated that no authority is vested in State police officers, 
as such, by the National Prohibition Act, and have quoted with approval 
from VII Op. Atty. Gen. 506, 507, the opinion that Congress cannot, even 
if it attempt to do so, lawfully compel State officers to act. 

Therefore, State police officers would rest under such a duty as to give 
rise to the wider protection given to peace officers only if such duty were 
imposed upon them by some law, common or statutory, of this Common- 
wealth. I find no statute or decision in this Commonwealth clearly im- 
porting such a duty, and believe that the interference with personal liberty 
and deprivation of property which it would import is not to be lightly 
found by implication. It is therefore my opinion that whatever may be 
the powers or duties of private citizens in the premises, or of State police 
officers in their capacity as private citizens, it is no part of the official 
duties of the State police officers of this Commonwealth without a war- 
rant to an-est a person or to search for or to seize any of his property 



44 P.D. 12. 

upon reasonable or probable grounds to believe that such person has sold, 
transported, imported or exported intoxicating liquor, or is in the process 
of committing any of these acts, in violation of the National Prohibition 
Act. To be sure, among the oaths administered to every State police 
officer for qualification is an oath to support the Constitution of the 
United States. This oath is administered in the same form to every 
officer of the Commonwealth, and does not of itself impose a duty to en- 
force a Federal enactment, such as the National Prohibition Act, which 
itself authorizes only Federal officers to act thereunder. 

B. I come now to a consideration of that aspect of your second 
question which involves possible violations of the laws of this Common- 
wealth. I have pointed out that Mass. G. L., c. 138, § 75, does not pro- 
hibit yer se the transportation of alcoholic beverages, and that R. L., 
c. 100, § 48, forbidding introduction of intoxicating liquor into no-hcense 
cities and towns, was repealed. On November 2, 1920, after the National 
Prohibition Act went into effect, there was approved by the people an 
act which had been proposed by initiative petition, namely, St. 1920, 
c. 630, which created a class of certain non-intoxicating beverages. These 
beverages were defined as those containing not less than one-half of one 
per cent nor more than two and three-fourths per cent of alcohol, and 
their sale, without license, was prohibited. See Mass. G. L., c. 138, § 2, 
which reads as follows : — 

"No person shall sell, or expose or keep for sale, spirituous or intoxi- 
cating liquor or certain non-intoxicating beverages, except as authorized 
by this chapter." 

Section 10 of St. 1920, c. 630, authorized the granting of licenses for 
the sale of these "certain non-intoxicating beverages" by cities and towns 
which had voted to grant such licenses, and directed the aldermen or 
selectmen to cause an annual vote to be taken upon the question of li- 
cense. By St. 1925, c. 33, the Legislature provided that all provisions 
requiring aldermen or selectmen to cause a vote to be taken upon the ques- 
tion of license should cease to be in effect during such period as the sale 
of certain non-intoxicating beverages should be in violation of Federal law. 
All other provisions regarding the issuance of licenses for the sale of bever- 
ages containing not less than one-half of one per cent nor more than two 
and three-fourths per cent were left intact; and it is my opinion that 
these remaining provisions do not permit — because they cannot permit — 
a sale of any beverage containing more than one-half of one per cent of 
alcohol in this Commonwealth. See National Prohibition Cases, 253 
U. S. 350 (1920). 

The sections of Mass. G. L., c. 138, however, which provide for the en- 
forcement of section 2 relate only to cases of spirituous or intoxicating 
liquors; that is, beverages containing more than two and three-fourths 
per cent of alcohol. Section 59 provides that "the delivery of intoxicat- 
ing liquor in or from a building" shall, in certain circumstances, be prima 
facie evidence that such delivery is a sale. Section 61 provides for the 
issuance of a search warrant upon a complaint that there is belief and 
reason to believe that spirituous or intoxicating liquor is being kept for 
sale, and for the search under such warrant and the seizure of "such 
liquor, the vessels in which it is contained and all implements of sale and 
furniture used or kept and provided to be used in the illegal keeping or 
sale of such liquor." Likewise, section 81 of chapter 138, section 14 of 



P.D. 12. 45 

chapter 139 and the other provisions of law relating to nuisances refer 
only to intoxicating liquors; that is, with a content of more than two and 
three-fourths per cent of alcohol, and when sold or exposed or kept for 
sale. 

On December 4, 1924, there became law an additional statute, known 
popularly as the "Baby Volstead Act," which had been approved on May 
9, 1923, but was suspended in operation by the filing of two referendum 
petitions. This law (Mass. G. L., c. 138, § 2 A) read as follows: — 

"No person shall manufacture, transport by air craft, water craft or 
vehicle, import or export spirituous or intoxicating liquor as defined by 
section three, or certain non-intoxicating beverages as defined by section 
one, unless in each instance he shall have obtained the permit or other 
authority required therefor by the laws of the United States and the regu- 
lations made thereunder." 

Thus, in addition to the provisions already existing prohibiting the sale 
and the exposing or keeping for sale of all beverages containing more than 
one-half of one per cent of alcohol, the further acts of manufacture, trans- 
portation, importation or exportation of such beverages, regardless of 
whether accompanied by a sale or by an intention to sell, were made un- 
lawful by the laws of this Commonwealth. 

On December 4, 1930, in accordance with the will of the people as 
expressed at the last election, the "Baby Volstead Act" cea.sed to be of 
effect. No other section of our laws in relation to alcoholic beverages was 
at that time voted on, however, so that from December 4, 1930, the statu- 
tory situation has been and is substantially the same as before the effective 
date of the section which then became inoperative. 

From the foregoing it is clear that State police officers have power under 
our laws to act in certain cases wherein they come "upon a load of liquor 
in a vehicle or in a liquor manufacturing still," since any sale or exposing or 
keeping for sale of intoxicating liquors is still illegal just as it was before the 
passage and during the effectiveness of the "Baby Volstead Act." 

G. L., c. 138, § 61, to which I have already referred, provides that upon 
due complaint that "spirituous or intoxicating liquor ... is kept or 
deposited ... in a store, shop, warehouse, building, vehicle, steamboat, 
vessel or place, and is intended for sale contrary to law," a warrant may 
issue, if there is probable cause, authorizing a search for and a seizure of 
"such liquor, the vessels in which it is contained and all implements of sale 
and furniture used or kept and provided to be used in the illegal keeping or 
sale of such liquor." 

Commonwealth v. Certain Intoxicating Liquors, 253 Mass. 581 (1925), 
arose upon a complaint alleging the keeping of certain intoxicating liquors, 
that is, beverages containing more than two and three-fourths per cent of 
alcohol, for sale. A search warrant issued and certain liquors were seized, 
"together with the vessels containing them, a Reo truck as an implement 
of sale or container, and certain other articles." The jury found that the 
truck was used, kept or provided to be used as an implement of sale or a 
container in the illegal keeping or sale of said liquors. The Supreme Judicial 
Court, remarking that the evidence before the jury was not before it, said 
that it was unable to say that the evidence did not justify the finding. 

Commonwealth v. Certain Intoxicating Liquors, 258 Mass. 85 (1927), 
arose upon a complaint for the forfeiture of four gallons of liquor "in four 
metal containers and vehicle to wit: Ford automobile ..." The Su- 



46 P.D. 12. 

preme Judicial Court held that the evidence was insufficient to warrant a 
forfeiture, but said (p. 87) : — 

"Circumstances may exist which would render an automobile liable to 
forfeiture under our statutes." 

And, on page 88: — 

"Such transportation may often, perhaps usually, accompany the intent 
to sell the liquor contrary to law. It is conceivable that such transportation 
may not be accompanied by a purpose to sell the intoxicating liquor con- 
trary to law, although as a practical matter it may be of infrequent occur- 
rence. But there may be such instances. See Street v. Lincoln Safe Deposit 
Co. 254 U. S. 88, 98, and Corneli v. Moore, 257 U. S. 491, 497. Doubtless 
slight evidence of intent to sell might be enough, in conjunction with illegal 
transportation of intoxicatmg liquor, to prove an intent to sell it contrary 
to law. 'The place, time and circumstances, and the mode in which it is 
kept,' together with other relevant facts touching the transaction, well 
might afford proof of such intent. Fisher v. McGirr, 1 Gray, 1, 38, 39. 
The adoption of the Eighteenth Amendment to the Constitution of the 
United States and the enactment of various statutes to enforce the same 
may give to simple possession of intoxicating liquor and to transportation 
of it contrary to law, in connection with other circumstances, a different 
and more sinister significance in connection with prosecutions for crime 
under such laws than theretofore." 

It is thus settled that in some cases an automobile or vehicle containing 
liquor may be searched and forfeited upon a warrant duly issued, although 
in the absence of further decided cases upon this point it cannot be said 
with certainty just what facts will support such a forfeiture. 

To summarize my conclusions: State police officers have no authority 
by virtue of the terms of the National Prohibition Act to enforce its pro- 
visions, nor have State police officers, as such, any power at common law 
to arrest without a warrant for any violations of the National Prohibition 
Act, even such violations as were constituted felonies by the Jones Act. 
Certain State magistrates may, however, if they choose, issue process for 
the apprehension of violators of any Federal act, and State police officers 
have, of course, the powers derived from such process. 

The powers, then, as such, of a State police officer, who, in the language 
of your question, "in the course of his duty either on the highway or in a 
raid comes upon a load of liquor in a vehicle ..." are — 

1. If there is transportation or possession, such powei's as he may 
derive from any warrant issued in accordance with the provisions of 
U. S. Rev. Stat., § 1014, for a violation of the National Prohibition Act. 

2. If there is exposing or keeping for sale and the liquor contains more 
than two and three-fourths per cent of alcohol, to apply for a warrant 
under Mass. G. L., c. 138, § 61, for a violation of section 2 of the same 
chapter. 

There is no authority, by virtue of his office, to arrest without a war- 
rant in any of the foregoing circumstances. 

You ask also what are the powers of a State police officer who "in a 
raid comes upon a load of liquor in ... a liquor manufacturing still." 
You do not state the occasion or authority for the raid, but, assuming 
that such officer lawfully comes to where he finds liquor in a still, his 
powers are — 

] . If there is possession or manufacture, such as he may derive from 



P.D. 12. 47 

any warrant issued in accordance with the provisions of U. S. Rev. Stat., 
§ 1014, for a violation of the National Prohibition Act. 

2. If there is exposing or keeping for sale and the liquor contains more 
than two and three-fourths per cent of alcohol, to apply for a warrant 
under Mass. G. L., c. 138, § 61, for a violation of section 2 of the same 
chapter. 

3. If he then find a person in the act of selling liquor in violation of 
Mass. G. L., c. 138, § 2, to arrest and seize without a warrant and proceed 
in accordance with the provisions of Mass. G. L., c. 138, § 75. 

I might suggest, also, the possible application of our laws relating to 
nuisances, as to which I believe you are familiar (Mass. G. L., c. 138', 
§§ 81 and 82; c. 139, §§ 14-20, inclusive). 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Pensions — Prison Employees — ^^ Injury." 

As used in G. L., c. 32, § 46, as amended, the word "injury" is limited 
to an injury caused by external force. 

Dec. 29, 1930. 

Hon. Charles P. Howard, Chairman, Commission on Administration and 

Finance. 

Dear Sir : — You have asked my opinion as to the proper interpreta- 
tion to be put upon G. L., c. 32, § 46, as amended, which provides for the 
pensioning of prison employees. You have informed me that, as Chair- 
man of the Commission on Administration and Finance or in your capacity 
as Budget Commissioner, you have actual duties relative to the particular 
instance of a contemplated pension which you lay before me, as to which 
you are immediately required to take official action, and that my advice 
is essential to enable you correctly to perform such actual duties in the 
premises. Assuming this to be so, I am rendering you my opinion for 
your guidance. 

The particular point involved in your request is as to the precise mean- 
ing of the word "injuries" in the phrase "permanently disabled by injuries 
sustained in the performance of his duty," as used in said section 46, as 
amended, which reads as follows: — 

"The commissioner of correction may, with the approval of the governor 
and council, retire from active service and place upon a pension roll any 
officer of a state prison, the Massachusetts reformatory, the prison camp 
and hospital, the state farm, the reformatory tor women or any jail or 
house of correction, or any person employed to instruct the prisoners in 
any prison or reformatory, as provided in section fifty-two of chapter one 
hundred and twenty-seven, or any other employee of the state prison, the 
Massachusetts reformatory or the prison camp and hospital, who has 
attained the age of sixty-five and who has been employed in prison service 
in the commonwealth, with a good record, for not less than twenty years; 
or who, without fault of his own, has become permanently disabled by in- 
juries sustained in the performance of his duty; or who has performed 
faithful prison service for not less than thirty years; provided, that no 
officer of any jail or house of correction shall so be retired except upon 
the recommendation of the sheriff and county commissioners of the county, 
except in the county of Suffolk, where the recommendation as to the 



48 P.D. 12. 

officers of the jail shall be made by the sheriff and the mayor of Boston, 
and, as to the officers of the house of correction, by the institutions com- 
missioners and the mayor of Boston; and provided, that no such officer, 
instructor or employee shall be retired unless he began employment as 
such in one of the above named institutions, or as an officer or instructor 
in one of those named in the following section, on or before June seventh, 
nineteen hundred and eleven. The word 'officer', as used in this and the 
two following sections, shall extend to and include prison officer, correc- 
tion officer and matron." 

The facts in the instant case upon which you inform me that you are 
required to act, as I understand them, are as follows: A prison officer 
has reached the age of sixty-one and has completed twenty-seven years of 
service — thus, under section 46, not being entitled to a pension unless 
he is permanently disabled by injuries sustained in the performance of 
his duties. As to this, his physicians state that he is permanently dis- 
abled from service but that his condition has been "precipitated by the 
constant and continued nervous strain of his duties at the reformatory." 
The question which you are considering, then, is: Is this nervous condi- 
tion an "injury," within the terms of said section 46? 

In my opinion, the word "injuries," as employed in said section 46, 
cannot be interpreted to include such a disorder as you have specified. 
The Legislature, in G. L., c. 32, has laid down a comprehensive system of 
pensions for the various classes of employees in the service of the Com- 
monwealth or its subdivisions, with varying requirements as to each class. 
Thus, for example, under section 43 school-teachers of any city or town 
other than Boston may be pensioned if they are incapacitated for useful 
service and have been in the service for twenty-five years. Under section 
44 school janitors must have reached the age of sixty and have given 
twenty-five years of service, and must be physically incapacitated. Under 
sections 49 to 53, inclusive, veterans of the civil war need only be inca- 
pacitated for active dut}^, with varying qualifications as to prior service. 
The same is true as to veterans of the Spanish and world wars, under 
sections 56 to 58. Justices of the Supreme Judicial and Superior Courts 
must have given fifteen years' service and have become disabled for the 
full performance of their duties by reason of illness or otherwise (§ 62). 
State and metropolitan police officers must have become physically or 
mentally incapacitated by injuries sustained in the actual performance 
of their duties (§§68 and 69). Scrub women must have reached the age 
of sixty, with at least fifteen years' service, and have become physically 
or mentally incapacitated for labor, or, if less than sixty, the incapacity 
must be caused by reason of injury sustained in the performance of duty 
(§ 74). Under section 75 probation officers must be permanently disabled 
mentally or physically by reason of injuries or illness sustained in the 
performance of their duties (§ 75). Laborers, if under sixty, must have 
become physically or mentally incapacitated for labor by reason of an 
injury sustained in performance of duty. (See § 77.) Under section 80 
firemen must be permanently disabled mentally or physically by injuries 
sustained or illness incurred in the performance of their duties. 

There seems to be no clear indication of the legislative intent involved 
in these various qualifications among the different classes of employees. 
Thus, the only ones of whom it is specifically provided that they may be 
pensioned for illness incurred in the performance of their duties are pro- 



P.D. 12. 49 

bation officers, firemen and judges of the higher courts; but despite the 
lack of unity shown in the scheme of pensions, it is apparent that the 
Legislature did not mean that the word "injury" should include illness. 

In my opinion, the word "injury" in said section 46 is used as mean- 
ing an injury caused by some external force, and the officer in question 
is not entitled to a pension. I do not mean to imply by this opinion that 
a nervous breakdown caused by an injury sustained by external force 
should not entitle an officer to a pension. When a question upon such 
facts arises it will be the proper time to decide it. 

In rendering this opinion I am not unmindful of the fact that the Su- 
preme Judicial Court, in defining the word "injury" as used in the Work- 
men's Compensation Act and as used in poHcies of accident insurance, 
has treated various diseases as being injuries. See, for example, H. P. 
Hood & Sons v. Maryland Casualty Co., 206 Mass. 223, where it was held 
that glanders, caught by a hostler cleaning up a stable, was a bodily 
injury. See also Mooradjian's Case, 229 Mass. 521, where it was held 
that a physical impact is not an essential prerequisite to a personal injury, 
under the Workmen's Compensation Act. These cases, however, are not 
controlling in interpreting the word "injuries" as used in an act relative 
to pensions. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Commissioner of Public Safety — State Police — State Prison Colony. 
State police may not be used as guards at the State Prison Colony. 

Dec. 29, 1930. 
Dr. A. Warren Stearns, Commissioner of Correction. 

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

"Very soon now it is expected that we shall be ready to house the in- 
mate population of the State Prison Colony within the wall, and we 
hope very much to be able to utilize a detachment of State police for the 
purpose of guarding the wall. 

Enclosed is a complete report from the superintendent of the institu- 
tion of the plans contemplated, and I write to ask if there is any legal 
objection to the same." 

The report which you have annexed to your letter outlines a plan by 
which detachments of the State police, from the unit commonly known 
as the constabulary, would be transferred from the direction of the Com- 
missioner of Pubhc Safety and placed under the "exclusive direction" 
of the superintendent of the State Prison Colony, and used for periods 
of months as wall guards for such colony. 

The Attorney General does not pass upon questions of fact nor upon 
the expediency of schemes for the work of the various departments. 
In relation to the report which you have laid before me, however, and in 
answer to the question in your letter, I am constrained to say that, in 
my opinion, the suggested plan appears to be directly contrary to the 
intent of the Legislature as indicated in the various statutes concerning 
the State constabulary and prison officers and employees. The suggested 
plan appears to me to be one wholly without warrant under our existing 
laws, as it contemplates the use of the State constabulary for a purpose 
and in a manner unauthorized by statute. 



50 P.D. 12. 

I note a few only of the specific points applicable to the proposed plan, 
a consideration of which enters into the general conclusion which I have 
expressed: The Commissioner of Public Safety is without authority to 
divest himself and his subordinate officers of their plain duty of immedi- 
ate direction and control of the men under their command; the Com- 
missioner of Public Safety has no power to delegate his authority in rela- 
tion to such men to the officials of another department; the Legislature 
has already provided appropriate means and methods for the employment 
of necessary guards in the Department of Correction, and has not indi- 
cated an intention to confuse the duties of the State constabulary with 
those of prison officials; nor has the Commissioner of Correction, or 
those in his department, been given any authority by the General Court 
to direct or command individuals or units of the State constabulary. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Sporting or Trapping License — Conviction — Revocation. 

The holder of a sporting or trapping license who is found guilty of a vio- 
lation of the fish and game laws, and does not appeal, has his license 
rendered void even if his case is placed on file or he is placed on pro- 
bation. 

Jan. 9, 1931. 

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

Dear Sir: — You have called my attention to the provisions of G. L. 
c. 131, § 13, as amended by St. 1930, c. 393, § 2, as they relate to sporting 
or trapping licenses. 

Said section 13, as amended, reads as follows: — 

"... Every license issued under said sections five to twelve, inclu- 
sive, held by any person convicted of a violation of any provision of this 
chapter, shall be void, and shall immediately be surrendered to the officer 
securing such conviction. The officer shall forthwith forward such void 
licenses to the director. No person shall be given a license under author- 
ity of said sections during the period of one year from the date of his con- 
viction as aforesaid, and any such license so issued shall be void and shall 
be surrendered on demand of any officer authorized to enforce this chap- 
ter. No fee received for a license made void under this section shall be 
returned to the holder of such license." 

You have requested my opinion upon the following questions: — 

"1. If a defendant is found guilty of a violation of the fish and game 
laws and his case is placed on file, is his sporting or trapping license re- 
voked by said section? 

2. If a defendant is found guilty of a violation of said laws and is placed 
on probation for a definite or indefinite period, is his license revoked? 

3. If a defendant is found guilty and a fine is imposed which is suspended 
for a definite or indefinite period, is a sporting or trapping license held by 
such person revoked?" 

I note that in each of your questions it is stated, with relation to the 
facts therein severally contained, that the defendant was "found guilty." 

Inasmuch as by the terms of the instant statute the deprivation of the 
privileges of a license must rest alone upon the conviction of the licensee. 



P.D. 12. 51 

your questions resolve themselves into an inquiry as to the meaning of the 
words "convicted " and "conviction " as used in this enactment. 

The words "conviction" and "convicted" are used in our statutes with 
at least two different meanings, as has been pointed out by our Supreme 
Judicial Court. The first meaning may be described as technical and nar- 
row, limited to a condition where a final judgment has been imposed. The 
second meaning may be described as the more common and broader, 
denoting a condition or state where there has been an establishment of 
guilt. 

In Commonwealth v. Gorham, 99 Mass. 420, 422, the court said : — 

"The term 'conviction' is used in at least two different senses in our 
statutes. In its most common use it signifies the finding of the jury that 
the prisoner is guilty ; but it is very frequently used as implying a judgment 
and sentence of the court upon a verdict or confession of guilt." 

In Munkley v. Hoyt, 179 Mass. 108, 109, the court said: — 

"The word 'conviction' is used in at least two different senses in our 

statutes." 

In Mariano v. Judge of District Court, 243 Mass. 90, 92, the court said: — 

"Conviction ordinarily means a conclusive establishment of guilt. It 
imports that the question of guilt has been adjudicated and is not open to 
further inquiry as of right by the person convicted." 

I am of the opinion that, as used in the instant statute, relative to loss of 
a license, the words " convicted " and "conviction " are used in their broader 
sense and mean a conclusive establishment of guilt; that is, a verdict or 
finding of guilty. In mj^ opinion, it was the intention of the Legislature to 
provide that a verdict or finding of guilt by a competent tribunal should be 
the determining factor for the voiding of a license, and that the Legislature 
did not intend by the employment of the words in question that there must 
be a final judgment in a technical sense in a criminal case against the licensee 
before the license should become void. 

(1) In consequence of these considerations I am impelled to answer 
your first question in the affirmative. 

Upon the facts as you have presented them the defendant has been 
"found guilty," and I assume from the nature of the case, as you have 
briefly outlined it, that no appeal is pending. There has, then, been a 
"conclusive establishment of his guilt." It is immaterial, as I view the 
matter, whether the court has postponed the possibility of further action 
by filing the case or has proceeded to pronounce sentence. 

I am aware that this conclusion is contrary to the opinion expressed upon 
a similar question by one of my predecessors in office'in V Op. Atty. Gen. 
401, 402. I do not concur in said opinion, first, because it appears to have 
been based upon a misconception of the facts in the case of Commonwealth 
V. Kiley, 150 Mass. 325, upon the authority of which it purports to rest; 
and, second, because its conclusions appear to have been already virtually 
overruled by an opinion of former Attorney General Benton, VII Op. Atty. 
Gen. 513. 

(2) I answer your second question also in the affirmative. 

Although the action of a court in placing upon probation a person already 
found guilty of an offense is not a final judgment nor necessarily a final 
disposition of the matter, nevertheless, since such a finding has been made, 
the defendant may, as in the case of placing upon file after finding or ver- 



52 P.D. 12. 

diet, be said to have been convicted, within the meaning of G. L., c. 131, 
§ 13, as amended. 

(3) I likewise answer your third question in the affirmative. 

The imposition of a sentence, with no appeal therefrom, upon a defend- 
ant after he has been found guilty of an ofTense is a conclusive establishment 
of guilt. The suspension of the sentence does not leave the inquiry as to 
guilt still open for adjudication. The suspension, as has been said by the 
Supreme Judicial Court, "is for the advantage of the person convicted," 
and it would seem that in the case of a suspended sentence there has been 
a conviction, within the meaning of said G. L., c. 131, § 13, as amended. 
See Mariano v. Judge of District Court, 243 Mass. 90. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Pension — Retirement Association — Period of Service. 

Service rendered by an employee prior to eligibility as a member of the 
Retirement Association is not to be deemed "active service," within 
the meaning of G. L., c. 32, § 5. 

A member reinstated in said association is not deemed to have broken 
the continuity of such service by a previous withdrawal. 

Jan. 27, 1931. 

Hon. Charles F. Hurley, Chairman, State Board of Retirement. 

Dear Sir: — Your Board requests the opinion of the Attorney Gen- 
eral on the following question: Shall the Board, in computing a pension 
(prior pension) under section 5 {2) C (b) of G. L., c. 32, include any period 
of temporary service, under the provisions of lines 45 to 57, inclusive, of 
section 1 of said chapter? 

Lines 45 to 57, inclusive, of section 1 read as follows: — 

"Any member of the association who shall have withdrawn from the 
service of the commonwealth or metropolitan district after June first, 
nineteen hundred and twelve, on being re-employed in such service within 
two years, may be reinstated in said association in accordance with such 
rules for reinstatement as the board shall adopt, and when so reinstated 
the period of such withdrawal shall not operate to break the continuity 
of service, but shall not be counted as service. All periods of active service 
for the commonwealth or metropolitan district rendered prior to June 
first, nineteen hundred and twelve, by members of the association shall he 
a part of their continuous service, and for the purpose of computing the ac- 
cumulation for the pension for such service, regular interest as defined in 
this section shall be allowed for all periods that are to be counted as 
service." 

Section 5 (3) C (b), as amended, reads, in part, as follows: — 

"Pensions based upon prior service. Any member of the association 
who reaches the age of sixty and has been in the continuous service of 
the commonwealth for fifteen years or more immediately preceding and 
then or thereafter retires or is retired, any member who completes thirty- 
five years of continuous service and then or thereafter retires or is retired, 
and any member retired under section two (8), shall receive, in addition 
to the annuity and pension provided for by paragraphs (2) B and {2) 
C (a) of this section, an extra pension for life as large as the amount of the 



P.D. 12. 53 

annuity, computed under paragraph (2) B (a) of this section, and the 
pension, to which he might have acquired a claim if the retirement sys- 
tem had been in operation at the time when he entered the service, and if 
accordingly he had paid regular contributions from that date to June first, 
nineteen hundred and twelve at the same rate at which his contributions 
were first made and if such contributions had been accumulated with 
regular interest ; ..." 

It is stated in the above-quoted paragraph that a member of the associ- 
ation shall receive, upon retirement, an "extra pension," for life, as large 
as the amount of the annuity and the pension to which he might have 
acquired a claim if the retirement system had been in operation at the 
time when he entered the service. When he entered the service he could 
not have acquired a claim, for, had the retirement system been in opera- 
tion, he could not have been a member, as he had a temporary rating. See 
VIII Op. Atty. Gen. 20. You note the provision in section 1 that all 
periods of active service prior to June 1, 1912, shall be part of continuous 
service. As the member would not have been eligible to become a mem- 
ber, the question whether the period of service rendered prior to June 1, 
1912, was "active service," within the meaning of these words as used in 
this statute, is immaterial. 

Your second question reads as follows : — 

"Does the aforesaid quoted paragraph, i.e., section 1, lines 45 to 57, 
mean that a member may resign after thirteen years of service, and, upon 
reinstatement in the service within two years from the date of resignation, 
reinstate his membership in the Retirement Association, in accordance 
with rules adopted by the Board, and, after two more years of service, 
making a total of fifteen years — if he is then sixty years of age — request 
retirement under the provisions of section 2 (4), with the total aforesaid 
service, as one who has 'fifteen years of continuous service immediately 
preceding the date of retirement?'" 

Lines 45 to 57 of section 1, to which you refer in this question and as 
applicable to the case you recite, provide that "any member . . . who 
shall have withdrawn from the service of the commonwealth . . . after 
June first, nineteen hundred and twelve, . . . may be reinstated . . . 
and when so reinstated the period of such withdrawal shall not operate 
to break the continuity of service, but shall not be counted as service." 
This question must be answered in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Manufacture of Textile Goods — Employment of Women. 

The employment of women after certain hours, in the manufacture of 
textile goods, is not forbidden to women doing work which consti- 
tutes finishing rather than manufacturing of such goods. 

Feb. 4, 1931. 

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

Dear Sir : — I am in receipt of your request for an opinion as to whether 
persons employed on certain work and under certain conditions are to be 
considered as being employed in "the manufacture of textile goods," 
within the meaning of G. L., c. 149, § 59. The facts and question are set 
out in your letter as follows : — 



54 P.D. 12. 

"A manufacturer manufactures greige cotton cloth. Greige is a name 
applied to cotton cloth after the process of weaving has been completed, 
but before the cloth is otherwise finished. 

It is customary for the manufacturer to have this cloth finished in its 
finishing plant or to sell it in the greige state to converters. Converters is 
a name applied to dealers who purchase greige goods and either sell the 
same to the trade in the greige state or after having the same finished. 

The question is: Where cotton cloth in the greige state is sold by the 
manufacturer thereof to a converter, and the converter, who may then 
move the goods if he chooses or have the same finished by the manufac- 
turer, elects to have the goods finished in the manufacturer's print works 
at a price agreed upon by the converter and the management of the print 
works, the print works being an entirely separate establishment but 
owned by the manufacturer, in view of the definitions of 'manufacturing 
establishments' and of 'print works' in G. L., c. 149, § 1, are women en- 
gaged in the various processes of finishing these goods in the manufac- 
turer's print works, such as bleaching, trimming, folding, etc., employed 
in 'the manufacture of textile goods,' within the meaning of G. L., c. 149, 
§ 59, which provides as follows: 'No person, and no agent or officer of a 
person, shall employ a woman over twenty-one in any capacity for the 
purpose of manufacturing before six o'clock in the morning or after ten 
o'clock in the evening, or in the manufacture of textile goods after six 
o'clock in the evening.'" 

Two points are presented by your question: (1) Whether the doing of 
the work described by you and under the circumstances set forth is to be 
considered manufacturing, and therefore comprehended within the mean- 
ing of the word "manufacture" as used in G. L., c. 149, § 59; and (2) if 
this process is manufacturing, is it the manufacture of textile goods? 

1. Both before and after the process of finishing is worked upon the 
cloth in the case stated by you, the product is cotton cloth. You state, 
however, that before it is finished it has the distinctive name "greige," 
and I am informed that after being finished it is called "print." Web- 
ster's dictionary gives one definition of the noun "print" as "the printed 
cloth." The test of manufacture set forth in Anheuser-Busch Brewing 
Assn. V. United States, 207 U. S. 556, is, — "There must be transformation; 
a new and different article must emerge, 'having a distinctive name, char- 
acter or use.'" The word "manufacture" is defined in I Op. Atty. Gen. 
209, as "the production of articles for use from raw or prepared materials 
by giving these materials new forms." It also has the meaning of "to 
work, as raw or partly wrought materials into suitable forms for use," as 
stated in Commonwealth v. Green, 253 Mass. 458. The principle involved 
in the question of whether the finishing of greige cloth, as described in your 
letter, is manufacturing is much the same as that in Lee v. Templeton, 6 
Gray, 579, where palm-leaf hats, received in an imperfect state, were put 
through the process of bleaching, pressing and dressing. This process was 
referred to as being a process of manufacture. Another expression used 
to describe such processes is "each being a step in manufacturing." Riter- 
Conley Mfg. Co. v. Aiken, 203 Fed. 699. Surely, the change in the case 
we are considering is as great as that discussed in Marks v. United States, 
196 Fed. 476, where by certain processes crude opium was manufactured 
into smoking opium. 

Applying these principles, I would say that it appears from your letter 
that this cotton cloth in the greige state is either prepared material or 



P.D. 12. 55 

partly wrought material which, upon being finished in the manufacturer's 
print works, is given a new form or is worked into a suitable form for use, 
as well as being transformed into a new and different article having a 
distinctive name, character or use. The process of finishing, therefore, 
would be included within the meaning of the word "manufacture." 

2. The second point raised by your question, whether the process of 
manufacture described in your letter is the "manufacture of textile goods," 
however, is governed by the principles of law set forth by one of my pred- 
ecessors in office in an opinion to the Commissioner of Labor, dated 
April 24, 1919 (not printed), with which I concur, and which I am ad- 
vised has been followed consistently since that date in the rulings of your 
department. I quote this opinion in full. 

"You have requested my opinion as to the exact meaning of the words 
'textile goods,' found in section 51 of chapter 514 of the Acts of 1909, and 
also as to whether or not bleaching, dyeing, finishing, printing and yarn 
converting is to be considered 'the manufacture of textile goods.' 

Section 51 of chapter 514 of the Acts of 1909 provides in part as fol- 
lows : ' . . . No person, and no agent or officer of a person or corpora- 
tion engaged in the manufacture of textile goods, shall employ a woman 
or a minor before six o'clock in the morning or after six o'clock in the 
evening. . . .' 

The exact meaning of the words 'textile goods' was given by this de- 
partment in 1907. The Honorable Dana Malone said, in an opinion at 
that time, — 

'The word "textile" as an adjective is defined to be "of or pertaining 
to weaving. Woven, or capable of being woven; formed by weaving: as, 
textile fabrics; textile materials, such as wool, flax, silk, cotton." The 
term "textile fabrics," which may be regarded as synonymous with the 
words "textile goods," as used, . . . has been defined to include those 
fabrics woven, as carpets, or capable of being woven or formed by weav- 
ing, and the noun "textile" to be a fabric which is woven or may be 
woven, — a fabric made by weaving. See Wood v. Allen, 111 la. 97, 
100.' (See III Op. Atty.-Gen. 127.) 

Accordingl}^, if bleaching, dyeing, finishing, printing and yarn convert- 
ing is done as a part of and connected with the manufacture of fabric by 
weaving, an establishment where this process is emploj'ed must be held 
to come within the terms of the statute. Otherwise, your question is to 
be answered in the negative." 

The Attorney General does not pass upon questions of fact, but it 
appears from your letter that in the particular instance of manufacturing 
as to which you inquire the process of weaving has been completed and 
the. various processes of finishing are entirely independent of and apart 
from the making of the fabric by weaving. This being so, consistently 
with the foregoing opinion of 1919 I am constrained to hold that G. L., 
c. 149, § 59, which prohibits the employment of women after six o'clock 
in the evening in "the manufacture of textile goods," does not apply to 
the employment of women in the doing of the work described in your 
letter in the manner and under the conditions set forth therein. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



56 P.D. 12. 

Department of the Auditor of the Commonwealth — Employees — Civil 

Service. 

Appointments of employees by the Auditor of the Commonwealth, under 
G. L., c. 11, § 6, as amended, are governed by the civil service rules. 

Feb. 19, 1931. 

Hon. Francis X. Hurley, Auditor of the Commonwealth. 

Dear Sir: — I am in receipt from you of a request for an opinion, which 
reads, in part, as follows : — 

"Will you kindly give me an opinion as to whether or not the Department 
of the State Auditor is governed by the rules and regulations of the Depart- 
ment of Civil Service and Registration. May I call your attention to St. 
1923, c. 362, § 15, the first sentence whereof reads: 'The state auditor may 
appoint and remove such employees as the work of the department may 
require, and fix their compensation.'" 

Inasmuch as you direct my attention specifically to St. 1923, c. 362, § 15, 
amending G. L., c. 11, § 6, which deals with employees generally in your 
department, I confine myself to a consideration of the question of whether 
or not your department is governed in relation to such employees by the 
rules and regulations of civil service. Said St. 1923, c. 362, § 15, reads as 
follows: — 

"The state auditor may appoint and remove such employees as the work 
of the department may require, and fix their compensation. Said em- 
ployees shall be organized in two divisions, namely, the division of receipts 
and the division of disbursements. The employees in the division of re- 
ceipts shall be qualified to check actual receipts." 

It has been held in former opinions of Attorneys General that appointive 
positions in the government of the Commonwealth are presumptively under 
civil service, and that, in order to hold that such positions are not subject 
to civil service, it must appear that they were specifically exempted, or it 
must be apparent, from the context of the statute creating the positions or 
providing for the appointment to or removal from said positions, that it 
was the intention of the Legislature that said rules and regulations should 
not apply to these positions. Attorney General's Report, 1930, p. 115. 
See IV Op. Atty. Gen. 619; VI Op. Atty. Gen. 152. 

The question, then, is whether the words "appoint and remove employees 
as the work of the department may require," as used in the instant statute, 
disclose a legislative intent to exempt such employees from the provisions 
of the civil service rules and regulations. 

It has been held that a legislative intent that civil service rules and regu- 
lations should not apply might properly be found to exist from the use in 
certain statutes, relative to particular branches of the public service, of such 
expressions as "serve at the pleasure of the board," "may remove them at 
pleasure" and "shall be appointed to hold office until removal and may be 
removed at any time by written order stating the cause of removal." VI 
Op. Atty. Gen. 152; 334. VII Op. Atty. Gen. 719. If a removal can be 
made at the pleasure of a board or appointing body, plainly that is incon- 
sistent with the rules of civil service. Likewise, when the removal can be 
made "at any time by written order stating the cause of removal," a 
method is set up for the removal that is wholly at variance with the method 
provided by the civil service rules and regulations. 



P.D. 12. 57 

In the instant statute, as amended, however, the words "may appoint 
and remove such employees as the work of his department may require" 
do not show any intent that a removal may be made in a manner other than 
that which the rules of civil service contemplate. The power to appoint 
and remove, limited merely "as the work of the department may require," 
is perfectly consistent with the rules and regulations of civil service being 
applicable. This particular statute might, with no conflict or inconsistency 
with its other terms, have been worded, — "may appoint and remove in 
accordance with existing laws, rules and regulations such employees as the 
work of the department may require," without enlarging its meaning as it 
now reads. A legislative intent to place the positions mentioned in said 
section 6 of the instant statute, as amended, outside the scope of civil 
service rules and regulations does not appear from the context. 

I am of the opinion, therefore, that appointments made or to be made 
under G. L., c. 11, § 6, as amended by St. 1923, c. 362, § 15, should be made 
in accordance with the rules and regulations of the Department of Civil 
Service and Registration. The special provisions relative to certain ex- 
aminers in your department, made by St. 1920, c. 428, and St. 1921, c. 380, 
relate only to particular employees appointed in 1920, and are not as to 
such employees controlled by the terms of said section 6, as amended. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Department of the Auditor of the Commonwealth — Duties of Employees — 

Qualifications. 

Employees of the Auditor of the Commonwealth are not required to be 

qualified to inspect or examine the quality of commodities. 

March 4, 1931. 
Hon. Francis X. Hurley, Auditor of the Commonwealth. 

Dear Sir: — I am in receipt of your request for m}^ opinion as to the 
meaning of the words "actual receipts," as used in G. L., c. 11, § 6, as 
amended by St. 1923, c. 362, § 15. This section, as amended, reads as 
follows : — 

"The state auditor may appoint and remove such employees as the 
work of the department may require, and fix their compensation. Said 
employees shall be organized in two divisions, namely, the division of 
receipts and the division of disbursements. The employees in the divi- 
sion of receipts shall be qualified to check actual receipts." 

An examination of this section discloses that it does not outline the 
work of the department nor the duties of the employees of the depart- 
ment. Such work and duties are outlined by G. L., c. 11, § 12, as amended 
by St. 1923, c. 362, § 16, which is as follows: — 

"The department of the state auditor shall annually make a careful 
audit of the accounts of all departments, offices, commissions, institu- 
tions and activities of the commonwealth, including those of the income 
tax division of the department of corporations and taxation, and for said 
purpose the authorized officers and employees of said department of the 
state auditor shall have access to such accounts at reasonable times and 
said department may require the production of books, documents and 
vouchers, except tax returns, relating to any matter within the scope of 
such audit. The accounts of the last named department shall be subject 



58 P.D. 12. 

at any time to such examination as the governor and council or the gen- 
eral court may order. Said department shall comply with any written 
regulations, consistent with law, relative to its duties made by the gov- 
ernor and council. This section shall not apply to the accounts of state 
officers which the director of accounts of the department of corporations 
and taxation is required by law to examine. The department of the state 
auditor shall keep no books or records except records of audits made by 
it, and its annual report shall relate only to such audits." 

The plain meaning of section 12, as amended, is that the Department 
of the Auditor of the Commonwealth shall make a careful audit of all 
departments, offices, commissions, institutions and activities of the Com- 
monwealth, except such as are expressly exempted in the statute. Sec- 
tion 6 of this chapter, as amendecl, should therefore be read in conjunc- 
tion with section 12, as amended. It would then appear that the words 
"disbursements" and "receipts" have the usual meaning given to them 
in accounting, "disbursements" meaning the payment of money by the 
Commonwealth and "receipts" meaning the payment of money to the 
Commonwealth. The provision, then, that there shall be two divisions 
in the Department of the Auditor of the Commonwealth, one a division 
of disbursements and the other a division of receipts, would mean that 
the division of disbursements would check the accounts showing the pay- 
ments approved and authorized by the various departments; and the 
other, the division of receipts, would check the accounts showing the 
actual receipt of money taken in by the various departments. 

It would follow, therefore, that the words "actual receipts," as used 
in the sentence "The employees in the division of receipts shall be quali- 
fied to check actual receipts," mean actual payments taken in by the 
various departments, offices, commissions, institutions and activities of 
the Commonwealth. I am confirmed in this view by the fact that the 
duty of examining the accounts and demands against the Common- 
wealth, while formerly that of the Auditor, under G. L., c. 11, § 7 (see 
Opinion of the Justices, 13 Allen, 593), with the repeal of this section and 
the enactment of St. 1923, c. 362, § 1, was transferred to the Comptroller, 
and that all the duties formerly placed upon the Auditor, except such 
only as relate to the making of audits, have been withdrawn from him 
by the provisions of said St. 1923, c. 362. I am of the opinion, therefore, 
that the words "check actual receipts," as used in the instant statute, 
do not refer to inspection or examination of the quality of commodities 
purchased by or for the various subdivisions of the administrative forces 
of the Commonwealth. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement System — Elective Officers of Worcester County — Statute. 

If an elective officer in Worcester County is permitted by the Legislature 
to hold office after he becomes seventy years of age, he will be entitled 
to the benefits of the retirement system when his term of office ends, 
if he then be over seventy. 

March 6, 1931. 

Albert Bullock, Esq., House Chairman, Committee on Pensions. 

Dear Sir : — You inform me that the Committee on Pensions requests 
answer to the following question: If the officers of Worcester County 



P.D. 12. ' 59 

should serve out the remainders of their terms of office as proposed in 
Senate Bill No. 80, would they then be entitled to a pension, should the bill 
become a law, in that they would be over seventy years, beyond the age set 
when pensions, as provided by law, are payable. 

The elective officers of Worcester County are included among the persons 
who may become members of the retirement system in Worcester County. 
St. 1926, c. 378, § 1. 

It is provided by G. L., c. 32, § 22 (4), that — 

"Any member who reaches the age of sixty and has been in the con- 
tinuous service of the county for fifteen years immediately preceding may 
retire, or be retired by the board upon recommendation of the head of the 
department in which he is employed, and any member who reaches the age 
of seventy shall so retire." 

The proposed bill (Senate No. 80) provides: — 

"Any incumbent of a county office in the County of Worcester shall, 
irrespective of age, be entitled to hold office for the remainder of the term 
to which elected." 

It will be noted that the provision regarding retii'ement is not that a 
member shall be retired when seventy years of age, but, rather, that any 
member who reaches the age of seventy shall so retire. The proposed 
statute allows such officers to hold office for the remainder of the term for 
which they were elected. These officers, therefore, at the end of their term 
will have reached seventy if they are over that age. They will then be 
entitled to the payments provided for by the provisions of the retirement 
act upon their retiring at the end of the term for which they are elected. 

My answer, therefore, is in the affirmative. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Clerks of Court — Naturalization — Returns. 

Clerks of court must make returns to the Secretary of the Commonwealth 
relative to naturalization, as prescribed by G. L., c. 220, § 19. 

March 10, 1931. 

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

Dear Sir : — You have asked my opinion as to whether or not it is 
necessary for the clerk of each court to make return of the name, age, 
occupation and residence of every person naturalized, as provided in G. L., 
c. 220, § 19, which reads as follows: — 

"The clerk of each court shall annually, on or before February first, 
make to the state secretary a return of the name, age, occupation and resi- 
dence of every person naturalized prior to the preceding January first, the 
date of the naturalization and the names and residences of the witnesses. 
Such returns shall be preserved by the secretary in a form convenient for 
reference." 

You write that you are asking this because at least one of the clerks of 
court is of the opinion that this law only applied prior to 1906, "when the 
Federal government took over naturalization procedure." In his letter, 
which you forwarded to me, he states, in part : — 

"An examination will disclose that section 19 was originally section 5 of 



60 P.D. 12. 

St. 1885, c. 345, and, therefore, was passed at a time when the Common- 
wealth had and exercised naturahzation jurisdiction." 

He then quotes the following from the case of County of Berkshire v. 
Cande, 222Mass. STi- 
'^It cannot be assumed that St. 1908, c. 253 (disposition of fees), was 
intended to apply to naturalization as treated in R. L. 166, §§14 to 18 (now 
chapter 220). Those sections were enacted when naturalization fees were 
under the control of the State Legislature and became suspended when the 
Congress acted loithin its jurisdiction touching the same subject.' " 

U. S. Const., art. I, § 8, conferred upon Congress the power "to establish 
an uniform rule of naturalization." That power was first exercised by U. S. 
Stat, at L., c. 3, of 1790, since which time the Federal government has 
continued to exercise its power in naturalization proceedings. 

By the act of 1906, referred to in the letter to you, Congress acted upon 
the subject of naturalization fees, which had formerly been left for regula- 
tion by the several States. Mass. R. L. (1902), c. 166, § 18, dealt with the 
subject of naturalization fees. That section was omitted from our General 
Laws of 1921. R. L., c. 166, § 17, however, was re-enacted in the General 
Laws and is now section 19 of chapter 220, concerning which you write and 
which I have set forth above. 

The Federal statute (U. S. Comp. St. 1918, §§ 4351-7) relating to natural- 
ization does not purport to deal with the relations of a State officer with 
the State. It merely confers the right upon certain State courts to act in 
naturahzation proceedings. The Legislature of any State may prohibit its 
courts from exercising that right, as was done in Massachusetts by St. 
1855, c. 28, § 1, which reads: — 

"It shall not be lawful for any court established by the laws of this com- 
monwealth, or for any clerk thereof, to receive or entertain any primary or 
final declaration or application, made by or on behalf of any alien, to be- 
come a citizen of the United States, or to receive any registry of an alien, 
or to entertain jurisdiction for the naturalization of aliens." 

Or it may authorize the courts to act under the power granted by Congress, 
as has been done by our General Laws (c. 220, § 15) : — 

"The supreme judicial court and the superior court shall have jurisdic- 
tion to naturahze aliens resident within their respective judicial districts in 
the manner set forth in the federal laws relative to naturalization." 

In regard to the general intent of Congress not to interfere with the 
relations of a State with its own officers under a naturalization statute, the 
Supreme Court of the United States, in Mulcrevy v. San Francisco, 231 
U. S. 669, 674, said: — 

"The act does not purport to deal with the relations of a state officer with 
the State. To so construe it might raise serious questions of power, and 
such questions are always to be avoided. AVe do not have to go to such 
lengths. The act is entirely satisfied without putting the officers of a State 
in antagonism to the laws of the State — the laws which give them their 
official status." 

Since, as I have said, the Federal statute does not by its terms restrict 
or make incompatible with other duties the making of returns by clerks of 
State courts to designated State officials, the State Legislature may require 
from its clerks of court such additional information in regard to naturaliza- 



P.D. 12. 61 

tion, not in conflict with the Federal statute, as it may from time to time 
see fit. 

I am therefore of the opinion that it is necessary for the clerk of each 
court, as provided in G. L., c. 220, § 19, annually, on or before February 
first, to make to you a return of the name, age, occupation and residence 
of every person naturalized prior to the preceding January first, the date 
of the naturalization and the names and residences of the witnesses. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — Liability Insurance Com'pany — Defense of Actions. 

A liability insurance company is not authorized to defend an action which 
relates to a liability not covered by a policy. 

March 11, 1931. 

Hon. ^NIerton L. Browx, Commissioner of Insurance. 

Dear Sir : — You have in a communication to me set forth the follow- 
ing facts : — 

''A certain insurance company licensed to transact liabilit}^ insurance 
under said clause Sixth (G. L., c. 175, § 47, cl. 6th), as amended, defends 
or agrees to defend actions of tort brought against dentists, physicians or 
surgeons insured by it under what is called a malpractice liabilit}^ policy, 
although said actions may be based on alleged criminal acts of the insured, 
against legal liability for which the company is not permitted under section 
3 of said chapter 175 to insure. The company pays the costs of defending 
the action through counsel employed by it, but it does not pay or agree 
to pay any judgment which may be rendered against the insured in such a 
case." 

In connection with said facts you have asked my opinion as follows : — 

"Do the provisions of G. L., c. 221, §§46 and 47, as amended, permit 
an insurance company authorized to transact liability insurance under the 
Second, Fifth, Sixth or Eighth clauses of G. L., c. 175, § 47, as amended, 
to engage in the general practice of the law, or to defend or to agree to 
defend any and all civil actions begun against anj- person other than itself, 
irrespective of whether or not such actions are brought on account of a liability 
against which such person is insured under a liabilit}' policy issued under 
any one of said clauses?" 

If a contract of insurance into which a compan}- enters is not one which 
it is authorized to make, such contract is not valid, and the company may 
not lawfully act thereunder in so far as it is not valid. 

The question which you have put before me assumes, by its phraseology, 
that the contract to which it refers insures against hazards as to which the 
company issuing it is not authorized to insure, and your statement of facts 
as to which the question relates also assumes, by its terms, that the agree- 
ment of the insurance company and the acts done in pursuance thereof 
relate to a hazard or hazards "for which the company is not permitted 
under section 3 of said chapter 175 to insure." 

In the form in which your question stands I must answer it in the 
negative, for the provisions of G. L., c. 221, §§ 46 and 47, exempting liabil- 
ity insurance companies from a general prohibition against the practice of 
law by corporations, do not enlarge the authority of an insurance company 



62 P.D. 12. 

to make contracts not authorized by the provisions of G. L., c. 175, as 
amended, nor to perform acts in pursuance of such unauthorized con- 
tracts, the making of which is expHcitly forbidden by G. L., c. 175, § 3, as 
amended. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Officers — Municipalities — Appointment — Tenure of Office. 

Public officers in general hold office until their successors are qualified. 
The appointing authority vested in a mayor is an executive power, and 

a statutory provision for its exercise is mandatory. 
The authority to confii-m an executive appointment must be exercised 

within statutory limitations by the body on whom it is conferred. 

March 12, 1931. 

Hon. Chester W. Allen, Senate Chairman, Committee on Cities. 

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

"A. Whether or not there now exists by statute law or judicial deci- 
sion any limitation upon the time which an appointed office holder can 
continue to hold his office and perform the duties thereof after his term 
of office has expired?" 

An answer to this question can only be given after an extended search 
of the judicial decisions and an examination of the charter provisions of 
the several cities in the Commonwealth, and acts in amendment thereof 
or in addition thereto, and of the ordinances of said cities. The time 
within which this opinion is required does not permit such a search or 
examination. Many statutes provide in substance that a person ap- 
pointed to a particular office shall hold such office until his successor is 
appointed or elected and qualified. Generally, it may be said that a 
person appointed to an office may hold such office until his successor is 
appointed and qualified. This seems to be in the interest of the public 
business. Were it otherwise, occasions might arise where a particular 
office would close as a result of failure to appoint or elect a successor. 
Great inconvenience to the public would result thereby. 

"B. Is the appointing power granted to a mayor, as provided in 
G. L. c. 43, § 60, an executive function? Does the provision that certain 
department heads 'shall be appointed by the mayor' imply any obliga- 
tion on the mayor to make appointments to such office?" 

G. L. c. 43, § 58, provides, in part: — 

"There shall be a mayor, elected by and from the qualified voters of 
the city, who shall be the chief executive officer of the city. ..." 

See also G. L. c. 43, §§ 48 and 74. 

Section 87 of said chapter (Plan D) provides: — 

"The mayor shall be the official head of the city." 

In Dooling v. Fitchhurg, 242 Mass. 599, 601, the court said: — 

"The form of city charter known as Plan B, establishes a city govern- 
ment whose chief officer is the mayor, and whose legislative powers are 
lodged in the city council. G. L. c. 43, §§ 58, 59. Numerous sections of 



P.D. 12. 63 

this chapter disclose the plain aim to centralize executive authority and 
administrative responsibility in the mayor and to confine the city council 
to legislative functions." 

In Murphy v. Webster, 131 Mass. 482, 488, the court said: — 

''The power to appoint and the power to remove oflEicers are in their 
nature executive powers. . . . The mayor is the chief executive of the 
city and has the exclusive power of nomination." 

I therefore answer the first question in this paragraph in the affirmative. 

My answer to the second question is that the provision in said section 
60 that "all heads of departments and members of municipal boards . . . 
as their terms of office expire, shall be appointed by the mayor" is man- 
datory. A duty is thus imposed upon the mayor to appoint, and, upon 
his failure, he can be ordered to do so by writ of mandamus. 

"C. In said section 60, where it is provided that heads of certain 
departments 'shall be appointed by the mayor, subject to confirmation 
by the city council,' is the intent and purpose of that provision that the 
power to appoint may be nuUified or made void through a continued 
refusal to confirm the appointment so made? 

Can there be any limitation on the exercise of the power to confirm 
granted under this section? 

Can there be an abuse of the right granted the city council to confirm? 

If an abuse of the provision to confirm could be maintained at law, 
would it be sufficient cause for the limitation of the power to confirm?" 

If the word "intent" in the first question in this paragraph is used in 
a non-technical sense, I answer your question in the affirmative; if it is 
used in a technical sense, my answer is in the negative. The provisions 
of said section 60, herein quoted, signify the application of sound judg- 
ment by the city council upon the qualifications of a person appointed 
to a particular office. They require the exercise of faculties of criticism 
and discrimination. They denote positive sanction of the council to an 
appointment of the mayor before such appointee may enter upon the 
discharge of the duties of the office to which he has been appointed. It 
is the duty of the council to act in good faith upon a pending nomination 
and others that may be made. 

I answer the second question in this paragraph in the affirmative. It 
is within the authority of the Legislature to impose any limitation it sees 
fit upon the exercise of the power to confirm. Under Plan A form of city 
charter (G. L. c. 43, §§ 46-55, inclusive) "all department heads and mem- 
bers of municipal boards . . . shall be appointed by the mayor without 
confirmation b\^ the city council." 

I answer the third question in the affirmative. Abuses may arise in any 
given case. 

The fourth question in this paragraph needs no reply, as I have indi- 
cated that the Legislature has power to impose limitations, and the suf- 
ficiency of the cause for such imposition is not involved. 

"D. Does 'subject to confirmation by the city council' mean or intend 
that it shall be impossible for the mayor to fill vacancies in the office of 
heads of departments without the approval of the majority of the city 
council under any and all circumstances?" 

The answer to this question is covered by the answer to the first ques- 
tion in paragraph C. 



64 P.D. 12. 

"E. Could a continued refusal of the majority of the city council to 
confirm an appointee of the mayor, or a series of appointments made 
during a number of years, be held to defeat the intent and purpose of 
G. L., c. 43, and amendments thereto, wherein the intent is clear that the 
mayor, as chief executive of a city, is to be held responsible for the con- 
duct of all its departments?" 

Unless it is made to appear in an appropriate judicial proceeding that 
the city council has not acted in good faith, it is my opinion that the 
"continued refusal of the majority of the city council to confirm an ap- 
pointee of the mayor, or a series of appointments made during a number 
of years," cannot be held to defeat the intent and purpose of chapter 43; 
that, as stated by you, the mayor is to be held responsible for the conduct 
of all departments of a city. The mayor is the executive head of a city, 
and even if the city council refuses to confirm his appointment, or ap- 
pointments, to a particular office, the holder of such office, pending the 
appointment and qualification of his successor, is subordinate to the 
mayor and is subject to his lawful commands. The mayor's responsi- 
bility for the conduct of all departments of the city is not relaxed in any 
sense because of the refusal to confirm a particular appointee. 

"F. If the appointment of a head of a department is held to be an 
executive function, may not this power of confirmation, when exercised 
for the sole purpose of maintaining in office a head of a department for a 
number of years, become the assumption of an executive function by the 
city council, at least in so far as in its operation it may, in fact, make of 
the office holder the appointee of the city council?" 

The confirmation by the city council of an appointment of a mayor is 
a quasi executive function. If by the foregoing question you mean "the 
exercise of the appointing power by the city council," it cannot be said 
that such action in any sense "becomes the assumption of an executive 
function by the city council." The duties of the mayor and city council 
are distinct. Neither can exercise the powers of the other. Dooling v. 
Fitchhurg, supra. 

"G. May the Legislature enact legislation of a general character to 
define or limit the provision, wherever it may appear in our General Laws, 
that certain appointments are to be made subject to confirmation by a 
legislative branch of a municipal government?" 

I answer the foregoing question in the affirmative. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Department of Mental Diseases — Purchase of Land — Options. 

A department may make small payments for options for land, in anticipa- 
tion of a future appropriation, from money already appropriated for 
expenses incidental to the selection of a site for a school. 

March 30, 193 L 
Dr. George M. Kline, Commissioner of Mental Diseases. 

Dear, Sir: — You request my opinion as to whether St. 1930, c. 115, 
§ 2, item 534, requires that, — " (1) the whole site (for a new school for the 
feeble-minded) be bought for the ,$50,000 already appropriated; and (2) 



P.D. 12. 65 

if not, whether the Commonwealth can make small payments on agree- 
ments or options, whereby the property will be held for not less than one 
year, in anticipation of a further appropriation being made by the Legisla- 
ture sufficient to take up the amounts covered by the agreements." 

Said chapter 115 is the general appropriation act of 1930. Section 1 of 
that chapter reads as follows: — 

"To provide for the maintenance of the several departments, boards, 
commissions and institutions, of sundry other services, and for certain 
permanent improvements, and to meet certain requirements of law, the 
sums set forth in section two, for the several purposes and subject to the 
conditions therein specified, are hereby appropriated from the general fund 
or revenue of the commonwealth unless some other source of revenue is 
expressed, subject to the provisions of law regulating the disbursement of 
public funds and the approval thereof, for the fiscal year ending November 
thirtieth, nineteen hundred and thirty, or for such other period as may be 
specified." 

Section 2, item 534, under the general heading "Service of the Depart- 
ment of Mental Diseases," reads as follows: — 

"New School for Feeble-minded: 
For expenses incidental to the selection of a site and the purchase of land 
or options thereon for a new school for the feeble-minded, a sum not 
exceeding fifty thousand dollars $50,000.00" 

You have submitted to me, for consideration in connection with the 
questions raised by you, a copy of your letter of January 25, 1930, to the 
Chairman of the Commission on Administration and Finance outlining the 
program of your department "for additional provisions for the care and 
treatment of the feeble-minded over the period of the next five years," 
which letter further states, in part : — 

" It cannot be expected that a site for the fourth school for feeble-minded 
can be acquired, if an appropriation is made available for the purpose, in 
less than one year, but, inasmuch as the development of such an institution 
must be a gradual one, the department contemplates this development 
along the same lines as was followed at the Belchertown State School, 
namely, maintaining during the first years of construction this future 
institution for feeble-minded as a colony, presumably of the Walter E. 
Fernald State School. 

Within a five-year period, as the department views the development of 
this future fourth school for the feeble-minded, it is believed that the sum 
of $1,000,000 should be set aside in the five-year program." 

Upon inquiry from your department I am informed that "the fourth 
school for feeble-minded," referred to in your said letter of January 25, 
1930, is the same as the "new school for feeble-minded," referred to in St. 
1930, c. 115, §2, item 534. 

Upon consideration of the first question submitted by you, I am of the 
opinion that the provisions of the act of 1930, above quoted, do not require 
that the whole site for the new school for the feeble-minded be bought for 
the $50,000 already appropriated. 

Upon consideration of the second question submitted, I am of the 
opinion that the Commonwealth can make small payments on agreements 
or options, such payments, in my opinion, being "expenses incidental to 
the selection of a site and the purchase of land or options thereon," within 



66 P.D. 12. 

the meaning of the act, whereby the property will be held for not less than 
one year in anticipation of a future appropriation being made by the 
Legislature sufficient to take up the amounts covered by the agreements. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Blasting — Permits. 

Legislation providing a mode of classification of persons entitled to per- 
mits for blasting, not based upon a substantial distinction among 
those seeking such permits, is unconstitutional. 

April 27, 193L 
Hon. Malcolm L. Bell, Senate Chairman, Committee on Public Safety. 

Dear Sir: — You have requested my opinion as to the constitution- 
ality, if enacted into law, of the provisions of Senate Bill No. 429, being 
"An Act providing for the local control of blasting operations," as well 
as the amendment thereto which was submitted therewith. 

Senate No. 429 amends G. L., c. 148, § 9, as appearing in St. 1930, 
c. 399, § 1, by adding the following provision: — 

"and may therein provide for the issuance and revocation of permits by 
the head of the fire department or other municipal board or officer author- 
izing the use of dynamite and other explosives in blasting rock, stone 
and other substances, and prohibiting such use except in pursuance of 
such a permit in full force and effect." 

It also amends said chapter 148 by striking out section 21 as it appears 
and inserting in place thereof the following: — 

"The superior court shall have jurisdiction in equity, upon the peti- 
tion of the commonwealth or of a city or town, to enforce the laws of 
the commonwealth, the regulations of the department, and the ordinances 
and by-laws of a city or town, relative to the blasting of rock, stone or 
other substance with any explosive." 

In my opinion. Senate No. 429 is constitutional. 

The present laws delegate to cities and towns the right to regulate 
the subject matter of said section 9 by by-laws and ordinances not in- 
consistent with rules and regulations formulated by the Department of 
Public Safety. The addition to said section 9 proposed by Senate No. 
429 adds a provision that said by-laws and ordinances may provide for 
the issuance and revocation of permits. This clearly authorizes cities 
and towns to provide a system of permits as a means of enforcing said 
by-laws and ordinances. There is some doubt under the present law 
whether or not such right is included in the bare authorization to enact 
ordinances and by-laws. This change is clearly constitutional. 

Senate No. 429 amends said section 21 by giving the Superior Court 
jurisdiction in equity to enforce ordinances and by-laws enacted by cities 
and towns in pursuance of the authority vested in them by said section 9. 
This change merely provides a remedy for the enforcement of such ordi- 
nances and by-laws as are enacted in conformity with the provisions of 
said section 9, and is clearly constitutional. 

The amendment to Senate No. 429 submitted therewith provides for 
an addition to section 9, as proposed in Senate No. 429, as follows: — 



P.D. 12. 67 

"Provided, however, that any person aggrieved by the granting or 
refusal to grant a permit required by any ordinances or bj^-laws adopted 
under the authority of this section or by the revocation or failure to re- 
voke such permit, may appeal from such action to the fire marshal, and 
may appeal from the decision of the fire marshal to the superior court, 
for a determination whether such original action in granting or refusing 
to grant or in revoking or in refusing to revoke such permit is reasonable 
under all the circumstances, and until the determination of such appeal 
a person who has been regularly engaged in blasting rock, stone and 
other substances for a period of at least three years prior to the passage 
of this act, shall be entitled to continue such blasting, subject, however, 
to all provisions of law applicable thereto. Such appeal shall be filed 
within ten days of the decision appealed from, and the appellants shall 
be given a speedy hearing by the fire marshal and by the superior court." 

The first part of this proposed amendment provides for an appeal from 
the decision of the municipal officer empowered by Senate No. 429 to 
grant permits to the Fire Marshal and a further appeal from the Fire 
Marshal to the Superior Court. This change merely provides procedure 
for appeal, and is clearly constitutional. 

The last part of the proposed amendment provides that if a decision 
adverse to an applicant is made by a municipal officer, under the authority 
conferred upon him by virtue of Senate No. 429, on the question of the 
issuing or revocation of a permit, and if the applicant takes an appeal 
to the Fire Marshal under the provision in the first part of the proposed 
amendment, and subsequently to the Superior Court, the applicant may 
be permitted to continue blasting operations pending this appeal until a 
final determination, provided that said applicant is "a person who has 
been regularly engaged in blasting rock, stone and other substances for a 
period of at least three years prior to the passage of this act." This pro- 
vision grants a special privilege to a particular class. Whether or not 
this classification violates the constitutional guaranty contained in the 
Fourteenth Amendment to the Constitution of the United States, as to 
equal protection under the laws, depends upon whether or not said classi- 
fication is reasonable and material and is based on substantial distinc- 
tions with reference to the subject matter. 

In my opinion, the said classification is not based on a substantial 
distinction with reference to the subject matter, and the last part of the 
proposed amendment is therefore unconstitutional. 

The municipal board and the Fire Marshal, on appeal, in considering 
the question of granting or revoking a permit for blasting must neces- 
sarily take into consideration many matters, including not only the 
capacity and ability of the applicant to conduct blasting but also the 
nature of the blasting operations for which said permit is sought, and 
the locality in which said blasting is to be performed. If the facts, upon 
which is based the creation of a class to receive a benefit which is denied 
to others, tend to show a substantial distinction which may reasonably 
be drawn between classes subject to the operation of the law, a mode of 
classification based upon such facts may be reasonable and proper. If 
such facts do not tend to show that such a distinction may reasonably be 
so drawn, the creation of a class to receive particular exemptions or bene- 
fits is an unreasonable, and so an unconstitutional, measure. 

In regard to the subject matter of the instant legislation, if the only facts 
upon which the municipal officers and Fire Marshal were to base their rul- 



68 P.D. 12. 

ings as to the grant or revocation of a permit were the experience, abihty 
and character of the appHcant, a classification based upon the length of 
such actual experience might be reasonable and material and is founded 
on a substantial distinction between those within the scope of the statute. 
But, as has been pointed out, there are other facts in addition to those 
relating to experience, ability and character of the applicant upon which 
the said officers must base their rulings, and the single consideration of 
length of actual experience bears no relation to their determination, and 
of itself alone no controlling influence upon the finding which is ulti- 
mately to be made. If it is undesirable that blasting should be conducted 
in a certain locality, it is immaterial whether the applicant has been in 
business for three years, ten years or ten days. In my opinion, there- 
fore, the last part of the proposed amendment is unconstitutional. See 
Fountain Park Co. v. Hensler, (Ind.) 155 N. E. 465, 50 A. L. R. 1518; 
Wijeth V. Board of Health, 200 Mass. 474; State ex rcl. Kempinger v. 
Whyte, (Wise.) 188 N. W. 607, 23 A. L. R. 67. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



Civil Service — Municipalities — Persons receiving Support. 

without p 
rvice. 

May 13, 1931. 



Persons receiving support, employed by municipalities without pay, un- 
der G. L., c. 117, I 2, are not under civil service. 



Hon. Paul E. Tierney, Commissioner oj Civil Service. 

Dear Sir: — You state that persons receiving support from cities and 
towns under G. L., c. 117, § 1, are performing labor for such cities and 
towns under the provisions of section 2 of said chapter, and you request 
my opinion as to whether this involves any violation of the civil service 
law. 

In my opinion, the civil service law applies only to the employment of 
labor under contract. Among other considerations it may be noted that 
the remedy given by the civil service statute against illegal employment 
is to stop the pay of the person so employed (G. L., c. 31, § 38). The 
persons here in question are not receiving any pay. They receive no 
consideration for the work which they do. The support which they are 
receiving they are entitled to anyway (G. L., c. 117, § 1). Section 2 of 
the statute (G. L., c. 117) authorizes the city or town to make use of their 
services. 

Of course, if in any case a trade is made with a person who is not other- 
wise entitled to receive, and is receiving, support under chapter 117, by 
which such support is to be given in consideration of work done, that 
would be in fraud of civil service and it would be your duty to interfere. 
I do not understand that your question refers to such a case. 
Yours very truly, 

Joseph E. Warner, Attorney General. 



P.D. 12. 69 

Commissioner of Public Safety — State Fire Marshal — Explosives — Rules. 

The duty to make rules and regulations relative to explosives rests upon 
the Fire Marshal, under G. L., e. 148, as amended. 

May 13, 1931. 

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

Dear Sir : — Yyu request my opinion upon the following questions : — 

" (1) Is it the duty and responsibility of the Commissioner of Public 
Safety, acting for the department, to make the rules and regulations re- 
quired by the provisions of G. L., c. 148? 

(2) In the event that no rules and regulations are submitted to the 
Commissioner of Public Safety by the State Fire Marshal in accordance 
with G. L., c. 148, § 10, what is then the duty of the Commissioner?" 

G. L., c. 148, § 9, as amended by St. 1930, c. 399, reads, in part, as 
follows : — 

"The department shall make rules and regulations for the keeping, 
storage, use, manufacture, sale, handling, transportation or other dis- 
position of gunpowder, dynamite, crude petroleum or any of its prod- 
ucts, . . ." 

Section 10 of said act is as follows: — 

"The marshal shall submit to the commissioner rules and regulations 
required to be made by the department under any of the provisions of 
this chapter and shall, upon request of the commissioner, so submit rules 
and regulations which the department is authorized to make hereunder, 
and the same shall take effect, subject to section thirty-seven of chapter 
thirty, when approved by the commissioner and by the governor and 
council, and on such dates as the governor and council may fix." 

The Department of Public Safety is under the "supervision and con- 
trol" of the Commissioner, who is the "executive and administrative 
head of the department." Gen. St. 1919, c. 350, §§ 99 et seq.; G. L., 
c. 22, §§ 1 and 3. There is "in the department" a "division of fire pre- 
vention under the charge of a director to be known as state fire marshal." 
Gen. St. 1919, c. 350, § 101; G. L., c. 22, § 3. The Fire Marshal is ap- 
pointed by the Governor (G. L., c. 22, § 4). 

Section 104 of Gen. St. 1919, c. 350, which created the department, is 
as follows: — 

"The director in charge of the fire prevention division shall, under the 
supervision of the commissioner, perform the duties of the fire prevention 
commissioner for the metropolitan district, whose office is abolished hereby, 
and shall also have the powers and perform the duties of the district 
police and of the deputy chief of the detective and fire inspection depart- 
ment of the district police under the provisions of chapter four hundred 
and thirty-three of the acts of nineteen hundred and four, and acts in 
amendment thereof and in addition thereto, relative to the keeping and 
storing of inflammable fluids and combustible compounds and of the dis- 
trict police under the provisions of chapter thirty-two of the Revised 
Laws and acts in amendment thereof and in addition thereto. The said 
director shall submit to the commissioner rules and regulations under the 
said acts, and such rules and regulations shall take effect subject to the 
provisions of chapter three hundred and seven of the General Acts of nine- 



70 P.D. 12. 

teen hundred and seventeen, when approved by the commissioner and by 
the governor and council, and on such dates as they may fix." 

It therefore appears that the power of making rules relative to explo- 
sives was vested in the Fire Marshal, such power to be exercised "under 
the supervision of the commissioner," and such rules to become effective 
only when "approved" by the Commissioner and the Governor and Coun- 
cil. That part of said section 104 which provided for the submission of 
rules by the Fire Marshal appears in the General Laws as section 11 of 
chapter 148. It is also provided in section 10 of said chapter of the Gen- 
eral Laws that "the department" may make rules and regulations relative 
to explosives. This last provision is, in my opinion, not to be construed 
as transferring from the Fire Marshal to the Commissioner any power 
that the Fire Marshal had under section 104 of the 1919 act. The words 
"the department" in said section 10 of G. L., c. 148, mean the department 
through its Division of Fire Prevention. The same words as used in 
section 9 of the 1930 act are to be construed in the same way. 

Accordingly, I answer your first question in the negative. In my 
opinion, the Commissioner not only is under no duty, but has no power, 
to make rules upon the subject in question. I think it clear that it was 
not contemplated that any rules on this subject should be made which 
are not satisfactory to the Fire Marshal. 

In reference to your second question, it is plainly the duty of the Fire 
Marshal, at any rate in the absence of any valid and existing rules, to 
draw up and submit rules to the Commissioner for his approval. The 
act of 1930 makes this compulsory, even if it were not so under the earlier 
law. St. 1930, c. 399, §§ 9 and 10; cf. G. L., c. 148, § 10. The Fire 
Marshal functions "under the supervision of the commissioner." Gen. 
St. 1919, c. 350, § 104. (Although this provision does not appear in this 
express form in the General Laws, I think it clear that it was not intended 
by the consolidation to change the law in this respect, and the provisions 
which do appear in G. L., c. 22, §§1 and 3, namely, that the depart- 
ment shall be under the "supervision and control" of the Commissioner, 
and that the Commissioner shall be the "executive and administrative 
head of the department," cover the case.) If there are no rules such as 
are "required to be made" under the provisions of the act of 1930 (c. 399, 
§ 10), it is clearly the duty of the Fire Marshal within a reasonable time 
to prepare and submit such rules, and if he does not do so he is not per- 
forming his duty. 

In answer to your second question, I would say that if, in your opinion, 
the Fire Marshal is neglecting to perform his duty, it is your duty, as 
head of the department, to call that fact to his attention; and if this is 
insufficient, and if you are still of the same opinion, it is your duty to 
take some other course to compel the Fire Marshal to perform what you 
believe to be his duty. 

Yours very truly, 

Joseph E. Warner, Attorney General. 



P.D. 12. 71 

Municipalities — Reimbursement for Loss of Taxes on Forest Land. 

Towns are to be reimbursed for loss of taxes on lands purchased under 
G. L., c. 132, § 10, as amended, and such lands are not within those 
referred to in G. L., c. 132, § 33, as amended. 

May 19, 1931. 

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

Dear Sir:— You request my opinion as to whether St. 1931, c. 126, 
has the effect (1) of requiring reimbursement to towns for loss of taxes on 
lands heretofore acquired under section 10 of G. L., c. 132; and (2) of 
reducing by the amount of the land so acquired the amount authorized 
for acquisition under section 33 of said chapter. 

(1) Under St. 1908, c. 478, which was re-enacted as section 10 of G. L., 
c. 132 (and further amended by St. 1921, c. 271), land has been purchased 
by the Commonwealth for experiment and illustration in forest manage- 
ment and for reforestation, subject to the provision in said statutes that 
the owner may redeem within ten years. By G. L., c. 58, §§ 13 et seq., 
the Commonwealth is required to reimburse towns for loss of taxes on 
land owned by the Commonwealth and used for the purpose of a "state 
forest." It was provided by section 31 of G. L., c. 132, that lands ac- 
quired under section 30 "shall be known as state forests," and section 
33 (see St. 1930, c. 274) authorized the taking and holding "for state 
forests" of additional lands not exceeding 150,000 acres. Hitherto no 
reimbursement to towns has been required in connection with land pur- 
chased under section 10, because such land is not "state forests" within 
the meaning of that term as fixed bv the statutes above referred to. The 
recent statute to which you refer (St. 1931, c. 126, § 2) amends section 
31 of G. L., c. 132, by inserting the following provision: — 

"Lands acquired by purchase for experiment and illustration in forest 
management and for reforestation uncler the provisions of chapter four 
hundred and seventy-eight of the acts of nineteen hundred and eight 
and amendments thereof, or of the corresponding provisions of later laws, 
as to which the period limited for repurchase by their original owners, or 
their heirs or assigns, in accordance with said provisions shall have ex- 
pired without such repurchase, shall also be known as state forests and 
shall be under the control and management of the forester to the same 
extent as if acquired under section thirty." 

Also, section 5 of St. 1931, c. 126, provides as follows: — 

"All lands acquired by the commissioner of conservation under the 
provisions of said chapter four hundred and seventy-eight and its amend- 
ments or of the corresponding provisions of later laws, as to which the 
period limited for their repurchase by their original owners, or their heirs 
or assigns, in accordance with said provisions has not expired, shall con- 
tinue to be held and managed, subject to repurchase and reconveyance, 
as therein provided, but as the said period shall from time to time expire 
in respect to any parcel of land so acquired without repurchase and re- 
conveyance, said parcel shall become part of the state forests and shall 
be subject to section thirty-one of said chapter one hundred and thirty- 
two, as amended by section two of this act." 

Inasmuch as section 10 of G. L., c. 132, is one of the "amendments" 
of St. 1908, c. 478, it appears that henceforth there must be reimburse- 



72 P.D. 12. 

merits to towns in lieu of taxes on lands purchased under section 10 (or 
the earlier or later enactments), so far as the periods of redemption have 
or shall have expired, but not otherwise. 

(2) As to your second question, I advise you that lands purchased 
under section 10 do not go to reduce the amount of 150,000 acres author- 
ized to be acquired under section 33 (as amended by St. 1930, c. 274), 
because the amount so authorized by section 33 is "in addition to lands 
acquired under section thirty," and the lands in question were not ac- 
quired under section 30. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Board of Registration in Pharmacy — Registration — Department Store. 

A portion of a department store may be registered for the transaction of 
a retail drug business. 

May 20, 1931. 
Hon. Paul E. Tierney, Commissioner of Civil Service. 

Dear Sir: You have requested my opinion on the following question 
of law : — 

"1. The Board of Registration in Pharmacy is in receipt of an applica- 
tion for registration of a store for the transaction of the retail drug busi- 
ness, under the provisions of G. L. c. 112, § 39, from a person who desires 
to conduct a retail drug business in a portion of a department store which 
he has leased for that purpose. Is it permissible for the Board to grant 
such application?" 

In my opinion, a designated and defined portion of a department store 
is a "store," within the meaning of that word as used in G. L., c. 112, 
§ 39, and may be registered for the transaction of a retail drug business 
by the Board of Registration in Pharmacy. 

"Store" is defined in the Century dictionary as: "A place where goods 
are kept for sale, either at wholesale or retail." 36 Cyc. 1328. This 
definition has been followed in the case of Boston Loan Co. v. Boston, 
137 Mass. 332, 336, in which the court said: — 

"The later statutes intend to include in the description 'shop' or 'store' 
any building or room used for carrying on any trade or business adapted to 
be carried on in a building or room, and employing a stock in trade." 

In the case of Huckins v. City of Boston, 4 Cush. 543, the court, in con- 
sidering whether or not the plaintiff "hired or occupied stores," con- 
sidered merely the question whether or not he had in the place which he 
occupied goods or merchandise for sale, and did not take into considera- 
tion in its decision the fact that the plaintiff occupied only a portion of the 
place which the defendant contended was a store. The court in that 
case evidently considered the question of whether the plaintiff occupied 
the entire room or building or only a portion thereof immaterial in deter- 
mining whether or not the plaintiff was conducting a store. See also 
Commonwealth v. Whalen, 131 Mass. 419. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 73 

Hunting — Foxes — Running of Hounds. 
The running of foxhounds at any time of the year is not prohibited. 

May 20, 1931. 
Hon. William A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You have asked my opinion as to whether the running of 
foxhounds between April first and the following September first of any year 
is lawful. 

The law has established no close season with regard to foxes; that is, 
there is no specific prohibition in our statutes against the hunting or taking 
of them at any time of the year by a person licensed so to do. In view, 
however, of the provisions of G. L., c. 131, § 135, as added by St. 1930, 
c. 393, § 2, that "nothing in this chapter shall be construed to prohibit the 
training of hunting dogs, so called, between September first in any j^ear 
and the following April first," you have raised the question of whether the 
running of foxhounds within the period not covered by the statute just 
quoted may not be prohibited by implication. In my opinion, this statute 
has no prohibitory force: by its terms, it sanctions the ''training of hunt- 
ing dogs" from September first in any year to the following April first; by 
implication, it indicates that elsewhere in the chapter may be found some 
prohibitory provision or provisions applicable to some aspects of the train- 
ing of hunting dogs. 

In your letter you have directed my attention to the only provisions in 
the chapter which have such force, namely, those provisions of G. L., 
c. 131, § 1, as added by St. 1930, c. 393, § 2, which define the words ''hunt" 
and "hunting." These terms are defined in that section as including 
"pursuing, shooting, killing and capturing mammals and birds, and all 
lesser acts such as disturbing, harrying or worrying, or placing, setting, 
drawing or using any device commonly used to take mammals and birds, 
whether or not they result in taking; and . . . everj^ attempt to take and 
every act of assistance to any other person in taking or attempting to take 
mammals and birds." 

In my opinion, a person engaged solely in pursuing, shooting, killing or 
capturing a fox is not engaged in "hunting" such other mammals and birds 
as he may incidentally disturb, harry or worry. Clearly, every disturbing, 
harrying or worrying of a mammal or bird is not to be deemed a hunting of 
that creature, else the penalties of the statute might be invoked against 
persons who, however innocent of any intention to harm bird or beast 
or of any act having any connection with hunting in any ordinary 
sense, might inadvertently disturb one of their number. In ray opinion, 
such disturbing, harrying or worrying of mammals and birds as the Legis- 
lature intended to be included within the definition of "hunting" refeiTed 
to are such interferences of these kinds as are involved either in the direct 
pursuit of such creatures or in the doing of an act or part of a series of acts 
reasonably adapted to effectuate a taking of such creatures, whether or not 
such taking is or is intended to be fully consummated. 

My conclusion reveals a statutory situation similar to that which existed 
prior to St. 1927, c. 142, repealing G. L., c. 131, § 53, which provided, in 
part, that — 

"For the purpose of training hunting dogs which are duly licensed, no 
person duly licensed to hunt or trap shall be deemed guilty of a violation 
of the game laws forbidding the hunting or pursuing of wild birds or wild 



74 P.D. 12. 

quadrupeds by reason of the fact that he trains said dogs on said birds and 
quadrupeds between September first and March first, ..." 

The implication is clear that the Legislature which enacted the foregoing 
statute was of the opinion that, in the absence of the statute, the training 
of dogs on birds or quadrupeds might be found to be a violation even of 
game laws forbidding "hunting or pursuing"; but no such implication was 
conveyed as to training of dogs not so specifically directed against particu- 
lar creatures. 

To sum up: In the absence of any specific law prohibiting fox hunting, 
the running of foxhounds at any time of the year, whether or not in pursuit 
of foxes, provided they are not trained on other mammals or birds, is not 
contrary to law, even though while being so run they should incidentally 
disturb, harry or worry other creatures protected by the law from being 
hunted. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Metropolitan District Commission — Boston Traffic Commission — Traffic 

Control. 

Authority of two commissions relative to traffic control on Old Colony 
Boulevard defined. 

May 21, 1931. 

His Excellency Joseph B. Ely, Governor of the CommomveaUh. 

Sir : — You have requested me to advise you as to whether the Met- 
ropolitan District Commission or the Boston Traffic Commission is re- 
sponsible for traffic control at street crossings along the Old Colony 
Boulevard. 

The Old Colony Boulevard is the name given to a highway constructed 
in accordance with St. 1912, c. 699, which authorized the Metropolitan 
Park Commission to acquire land for and to construct certain parkways 
or boulevards, including one such "from a point at or near the crossing 
of Columbia road and the New York, New Haven and Hartford railroad, 
to a point near Neponset bridge in Boston, and from a point near Neponset 
bridge in Quincy to Quincy Shore reservation at Atlantic in the city of 
Quincy." From the form of your question I assume that your inquiry 
relates to that part of the boulevard between Columbia Circle, so called, 
near the crossing of Columbia Road and the New York, New Haven 
and Hartford railroad, and Neponset Bridge. 

The Metropolitan Park Commission, acting by virtue of the authority 
contained in the aforesaid statute and in exercise of its general powers, 
on December 23, 1914, made a taking of certain lands, over which it 
caused to be constructed the part of the Old Colony Boulevard which 
extends from Columbia Circle to Neponset Bridge. An examination of 
the order of taking, which was recorded with Suffolk Deeds, book 3856, 
page 241, reveals that the only way crossing the route of the boulevard, 
any part of which was included in the taking, was Conley Street ; that is, 
the Metropolitan Park Commission did not take any part of the follow- 
ing streets at the points where they crossed the boulevard route: Free- 
port Street, Victory Road (formerly Preston Street), Freeport Street (at 
its crossing with Tenean Street), Tolman Street, Redfield Street (formerly 
Copley's Highway) or Walnut Street. In each of these instances the 



P.D. 12. 75 

Commission took only up to the existing way which crossed the new 
route, but did not take any part of the way itself. I am informed that 
none of these crossings has since been taken by the Metropolitan Park 
Commission or by the Metropolitan District Commission, which, under 
Gen. St. 1919, c. 350, § 123, acquired all the rights, powers, duties and 
obligations of the Metropolitan Park Commission, which was at the same 
time abolished. 

By taking that part of Conley Street which crossed the route of the 
boulevard the Metropolitan Park Commission became vested with com- 
plete and exclusive care and control of the crossing, and became charged 
with the preservation of good order thereon, under St. 1894, c. 288, now 
incorporated substantially in G. L., c. 92, § 37, which provides that the 
Commission may make rules and regulations for the government and use 
of boulevards under its care. I refer with approval to an opinion of my 
predecessor in office. Honorable Herbert Parker, reported in II Op. Atty. 
Gen. 363, 367, relating to the effect of said St. 1894, c. 288. 

I have no question but that the Metropolitan District Commission, at 
the crossing of Conley Street, as at any other point where one of its bou- 
levards crosses another way and no inconsistent special arrangement for 
traffic control has been made by agreement with another bod}^, has the 
power to erect traffic control signals which would in the ordinary course 
have the effect of regulating to some degree traflfic on such way not under 
the direct control of the Metropolitan District Commission. Such ex- 
clusive control of a crossing would not violate the jurisdiction of the 
Boston Traffic Commission, as defined in section 2 of St. 1929, c. 263, 
under which the Commission was established. Said section 2 reads, in 
part, as follows: — 

"The (Boston traffic) commission shall have exclusive authority, except 
as otherwise herein provided, to adopt, amend, alter and repeal rules 
and regulations, not inconsistent with general law as modified by this 
act, relative to vehicular street traffic in the city, and to, the movement, 
stopping or standing of vehicles on, and their exclusion from, all or any 
streets, ways, highways, roads and parkwa3^s, under the control of the 
city, including rules and regulations designating any way or part thereof 
under said control as a through way . . . The commission shall have 
power to erect, make and maintain, or cause to be erected, made and 
maintained, traffic signs, signals, markings and other devices for the con- 
trol of such traffic in the city and for informing and warning the public 
as to rules and regulations adopted hereunder, . . . Nothing in this act 
shall be construed ... to modify or limit any power or authority of 
the metropolitan district commission ..." 

On the other hand, I am of opinion that the power of the Boston 
Traffic Commission, as given by the section just quoted, to make regu- 
lations relative to vehicular street traffic within its own jurisdiction, that 
is, on ways under the control of the city, is not less exclusive than the 
power of the Metropolitan District Commission over ways under its con- 
trol. Accordingly, at the crossings along the Old Colony Boulevard 
mentioned, except at Conley Street, the Boston Traffic Commission has 
the exclusive power to control traffic; that is, to regulate the movement, 
stopping, or standing of vehicles on, and their exclusion from, the ways 
crossing the boulevard, and to erect and maintain traffic signs and sig- 
nals in the exercise of this function. To be sure, the regulation of traffic 



76 P.D. 12. 

on these ways would unquestionably have the effect of modifying the 
movements of traffic on the boulevard by retarding from time to time 
its passage from the boulevard to these crossing ways; but this would 
involve, in my opinion, no modifying or limiting of the power or authority 
of the Metropolitan District Commission in the premises, which is con- 
fined to reservations and boulevards established by it. 

I should have been less willingly constrained to reach the foregoing 
conclusion had not the Legislature apparently contemplated possible 
conflicts of authority in such circumstances as have raised the present 
question, and suggested feasible means for a harmonious resolution of 
the confusion. For instance, G. L., c. 92, § 86, provides for the protec- 
tion and full validity of reservations and exceptions in favor of a mu- 
nicipality, contained in any taking of a public way by the Commonwealth 
for boulevard purposes in such manner that the public rights therein 
might otherwise be abridged. It authorizes the Commission to make 
grants, convey easements, enter into agreements, issue licenses, and gen- 
erally conclude arrangements to effectuate such protection; but provides 
that no such grant, agreement, license or arrangement shall be taken or 
held to "abrogate or abridge the control of the commission over the land 
included in said taking except as in said exceptions and reservations pro- 
vided, or the right of the commission to make rules and regulations for the 
government and use of any boulevard or crossway which may be laid out 
and maintained over said land or over any portion thereof, not incon- 
sistent with such exceptions and reservations." The intimation of this 
statute is that a feasible procedure in the laying out and construction of a 
boulevard across an already existing way might consist in a taking by 
eminent domain of that portion common to the way and to the boulevard 
route, excepting such rights and interests as were not necessary to the 
purposes of the Commission in the construction, maintenance, and con- 
trol of its project. 

If such a taking is made, the Commission may exercise the exclusive 
police control already referred to, or, in the alternative, may avail itself 
of the procedure authorized in G. L., c. 92, § 87, which reads, in part, as 
follows : — 

"The commission may transfer, for care and control, including police 
protection, any lands or rights or easements or interest in land held by it 
under section . . . thirty-five to any city, town, county, or local board of 
a city or town within the metropolitan parks district, with the consent of 
such city, town, county or board, and upon such terms and for such period 
as may mutually be agreed upon, and enter into an agreement with any 
such city, town," county or board for the joint care and control or police 
protection of such lands or rights therein, and also for laying out, con- 
structing and maintaining ways into or across any such lands; ..." 

Even if no taking is made of a crossing way, control of the crossing may 
be exercised by the Commission alone, or jointly by the Commission and 
a municipality or county, provided a mutual agreement to such end can 
be reached in accordance with that portion of G. L., c. 92, § 87, which 
reads — 

"Any city, town, or county, or any local board within the metropolitan 
parks district, may transfer, for care and control, including police pro- 
tection, any land, rights, easements or interest in land in its control, 
although the same be already a part of a pubhc way owned or controlled 



P.D. 12. 77 

by it, to the commission for such period and upon such terms as may mu- 
tually be agreed upon, and may enter into an agreement with the com- 
mission for the joint care and control, including police protection, of such 
land or public way." 

Very truly yours, 

Joseph E. Warxer, Attorney General. 

Public Health — Milk — Pasteurization — Grades. 

Pasteurized milk may not be sold under the designation "Grade A, Massa- 
chusetts Milk, Pasteurized." 

May 26, 1931. 
Dr. George H. Bigelow, Commissioner of Public Health. 

Dear Sir: — You request my opinion as to whether the designation 
"Grade A, Massachusetts Milk, Pasteurized" may properly be applied 
after pasteurization to milk which before pasteurization satisfied the re- 
quirements of G. L., c. 94, § 13, for "Grade A, Massachusetts Milk." 

All milk sold within the Commonwealth must comply with the Massa- 
chusetts legal standard set forth in G. L., c. 94, § 12, of a content of not less 
than 12 per cent of milk solids and not less than 3.35 per cent of milk fat, 
and must also satisfy such reasonable regulations as may have been made 
by the board of health of the city or town where it is sold. See G. L., 
c. Ill, §31. 

In addition to imposing these minimum requirements the Legislature has 
established two special grades or classifications, known as "Grade A, 
Massachusetts Milk" and "Grade A Milk." Milk, to be salable, need not 
be of either of these grades, which merely provide means by which the 
producer or seller of milk which is superior to that allowed by the legal 
standard, in certain respects, may represent that superiority to the con- 
sumer by the appropriate designation prescribed and allowed for that grade 
by the statute. Besides providing for these two grades the Legislature has 
provided, by G. L., c. 180, §§ 22-25, inclusive, for supervision of the produc- 
tion and sale of certified milk, so called, by medical milk commissions. 

The only one of these several categories, the limits of which are ques- 
tioned by your inquiry, is the grade or classification known as "Grade A, 
Massachusetts Milk," which was created by Gen. St. 1917, c. 256, § 1. 
This act created no other grade, but contained in section 4 certain anticipa- 
tory provisions to the effect that if any grade or classification of milk other 
than "Grade A, Massachusetts Milk" was established, permits for the sale 
of such milk should be granted and might be revoked in accordance with 
the provisions of the act in respect to "Grade A, Massachusetts Milk." 
The section contained the provision, now included in G. L., c. 94, § 18, 
that, — 

"Milk sold or kept or offered for sale or exchange under such a permit 
shall be marked with a label, . . . expressing the name of the grade as it is 
determined by the board granting the permit." 

Section 5 of the same statute declared illegal the sale or possession of milk 
purporting to be " of a grade established hereunder " without a permit. The 
use of this language in the statute might be taken to indicate that the Legis- 
lature intended the act to contain, in addition to the establishment of the 
grade specifically designated by its terms, an authorization for the estab- 
lishment of further grades without further legislative action; and an 



78 P.D. 12. 

examination of the original draft of the bill (see House No. 1965 of 1917) 
does, in fact, reveal an intention in the original proponent of the bill to 
grant, by section 1, just such authorization to the boards of health of cities 
and towns. Before the bill was enacted, however, this entire section 1 was 
stricken out, as well as certain clauses in other sections consistent with it. 
For example, in section 5 of the original bill the words "name of the grade 
as it is determined by the board establishing the grade" were changed to 
"name of the grade as it is determined by the board granting the permit." 
It is clear from these changes, in conjunction with the excision of the 
original section 1, that the provisions of Gen. St. 1917, c. 256, just dis- 
cussed — now found in G. L., c. 94, §§ 13, 14, 15 (as amended by St. 1924, 
c. 310, § 2) and 18 — contain no grant of authority to any person or board 
to establish grades of milk other than those established by statute. The 
only other grade which has been established by statute is, as I have said, 
"Grade A Milk." Justification for the sale of "Grade A, Massachusetts 
Milk, Pasteurized" cannot, therefore, be based upon a conception of it as 
a separate grade or classification deriving its validity from a determination 
of a local licensing authority. 

I am informed, however, that it is contended that milk designated as 
"Grade A, Massachusetts Milk, Pasteurized" may properly be sold, not 
as a separate grade but under a permit authorizing the sale of "Grade A, 
Massachusetts Milk," since there is no express prohibition in the statute 
against the pasteurization of "Grade A, Massachusetts Milk." This con- 
tention loses sight of the fact that the point at issue is not whether "Grade 
A, Massachusetts Milk" may be pasteurized, but whether, if it is pasteur- 
ized, it continues to be "Grade A, Massachusetts Milk," such as may be 
sold under a permit for that grade. 

The qualifications for "Grade A, Massachusetts Milk," found in G. L., 
c. 94, § 13, are that such milk be produced within this Commonwealth 
under cleanly conditions, and that — 

"in its raw state the bacteria count shall not average more than one hun- 
dred thousand per cubic centimeter, upon examination of five samples 
taken one each day, and each from a different lot of milk, on five consecu- 
tive days. When sold, kept or offered for sale or exchange, such milk 
shall be designated and marked by a label, cap or tag bearing the words 
'Grade A, Massachusetts Milk' in plain, legible, bold-faced type." 

In the first place, the words "in its raw state" are not indicative of a 
legislative expectation that the milk as "Grade A, Massachusetts Milk" 
might be found in some other state, such as a state of pasteurization. The 
plain meaning of the words "in its raw state," as used in their context, is 
that the Legislature intended that the bacteria count for the grade was not 
to be attained by pasteurization but must exist in the milk in ils raw state. 

Secondly, I find in the statutory provisions relating to the subject an 
intention to protect the consumer of milk by ensuring, so far as possible, 
that milk bearing a special designation, indicating a grade superior to 
milk which merely meets the legal standard, shall satisfy the qualifica- 
tions for that grade when, and whenever, it is offered for sale or exchange. 

Section 14 of G. L., c. 94, provides, in part: — 

"The board of health of a town, upon application of a person desiring 
to sell or exchange milk therein as 'Grade A, Massachusetts Milk', shall 
test, as provided in the preceding section, the milk produced or to be sold 
or exchanged by such applicant, and if upon such test the milk so pro- 



P.D. 12. 79 

duced or to be sold or exchanged by the appUcant is found to comply with 
the requirements of 'Grade A, Massachusetts Milk', such board shall 
issue without charge to the applicant a written permit to keep for sale, 
exchange or delivery, or to sell, exchange or deliver in such town, milk 
graded, designated and labelled under the preceding section as 'Grade A, 
Massachusetts Milk'. . . ." 

Section 18 of the same chapter provides : — 

"Whoever himself or by his agent sells, exposes for sale, or has in his 
custody or possession with intent to sell, milk purporting to be of a grade 
established under section thirteen . . . without having a permit so to do 
. . . shall be punished ... by a fine . . ." 

It is clear from these provisions that any person, whether producer or 
dealer, who sells milk purporting to be "Grade A, Massachusetts Milk" 
without a permit to sell the same becomes subject to the penalty pro- 
vided by the statute. He likewise becomes subject to the penalty if, 
having a permit, he sells milk purporting to be of this grade which is not 
wholty produced within the Commonwealth (§ 18). In addition to these 
penalties, as for criminal offenses, it is provided by section 14 that "a 
permit . . . may be revoked at any time upon written notice to the 
holder by the board issuing it, if milk offered by the holder for sale or 
exchange as so graded does not comply with said section" (§ 13). Revo- 
cation of the permit is the only penalty provided for the selling of graded 
milk having an illegally high bacteria count. 

A consideration of all these provisions together reveals an intention on 
the part of the Legislature that any person selling milk purporting to be 
"Grade A, Massachusetts Milk" must not only meet the requirements of 
section 13 to the satisfaction of the board of health to which he makes 
application for a permit, at the time that such board makes the test re- 
quired upon his application by section 14, but must at all times thereafter, 
while offering the milk for sale or exchange, maintain these requirements 
at peril of losing his permit under section 14. If it were sufficient that 
the milk should have complied with section 13 only at some stage in its 
production and not at all times while offered for sale or exchange as graded 
under section 13, the statute would not achieve the manifest intention of 
the Legislature to ensure that milk so graded, at the time when it reaches 
the consumer, shall comply with the specified requirements which dis- 
tinguish its special classification. Since pasteurized milk cannot, by its 
very nature, furnish a basis for an inspection as to the bacteria count of 
milk in its raw state, I am of the opinion that no pasteurized milk can 
properly be sold or offered for sale or exchange under a permit to sell 
"Grade A, Massachusetts Milk," and that if it is so sold or offered the 
permit of the person so selling or offering may be revoked, under the 
provisions of section 14. 

Pasteurized milk may be sold, of course, but not as milk of a grade 
which, as I have shown, the Legislature did not intend to include as a 
pasteurized product. It may be sold as ungraded milk, or, if of suf- 
ficient fat content and otherwise meeting the requirements established by 
the Department of Public Health under authority of the Legislature, as 
given by St. 1924, c. 310, as "Grade A Milk." This grade, although 
similar in designation to "Grade A, Massachusetts Milk," is different in 
many respects, one of which is the requirement that it be pasteurized. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



so P.D. 12. 

Civil Service — Veterans — Labor Service — Cities. 

Former employees in the labor service of a city, specifically mentioned 
in St. 1931, c. 319, as being entitled to preference in employment, 
are to have such preference over veterans. 

May 28, 1931. 

Hon. Paul E. Tierney, Commissioner of Civil Service. 

Dear Sir: — You have requested my opinion as to whether the men 
named in St. 1931, c. 319, are entitled to preference for employment in 
the labor service of the city of Cambridge over veterans, as mentioned in 
G. L., c. 31, § 24. 

G. L., c. 31, § 24, provides, in part, as follows: — 

"A veteran who registers for employment in the labor service of the 
commonwealth and of the cities and towns thereof, if found qualified, shall 
be placed on the eligible list for the class for which he registers ahead of 
all other applicants. The names of eligible veterans shall be certified for 
labor service in preference to other persons eligible according to the 
method of certification prescribed by the civil service rules applying to 
civilians." 

St. 1931, c. 319, provides that certain named individuals, "former em- 
ployees in the labor service of the city of Cambridge, who were removed 
therefrom in the year nineteen hundred and tw^enty-eight by order of 
the division of civil service, by reason of the fact that certain classifica- 
tion requirements under the civil service law were not complied with, 
shall, if duly registered as applicants for employment in the labor service 
of said city, be given preference for re-employment therein." 
• The nature of a civil service list has been described in an opinion ren- 
dered bv one of my predecessors in office as follows (VI Op. Atty. Gen. 
598, 599-600) : — 

"A place upon an established list ensures neither absolute nor relative 
rank, but is, on the contrary, held in continuing competition not only 
with those who in subsequent examinations achieve better competitive 
marks, but also with those to whom the Legislature accords a valid pref- 
erence by law." 

In my opinion, the Legislature, by St. 1931, c. 319, has accorded to the 
individuals named therein, if duly registered as applicants, a valid prefer- 
ence by law over all other appHcants for employment in the labor service 
of the city of Cambridge, including veterans. St. 1931, c. 319, discloses 
that the individuals named therein were removed from actual employ- 
ment because of circumstances in no way attributable to any act or 
omission on their part. It was the evident desire of the Legislature that 
in so far as possible these twenty-four named individuals should be re- 
stored to their former positions. To this end the act provided that they 
"be given preference for re-employment." This preference, so created 
by the Legislature, constitutes a preference for employment over all per- 
sons whose names are or may be placed on any eligible list for the labor 
service of this particular city, whether or not the names of such persons, 
because they are veterans, are "placed above the names of all other 
applicants" on such list. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 81 

Medical Examiner — Board of Health — Removal of a Dead Body. 

A medical examiner has no authority, under G. L., c. 38, § 6, to order the 
removal of a dead body from the town where it lies, without a permit 
from the local board of health. 

June 1, 1931. 

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

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

"Has a medical examiner authority to order the removal of a body 
from one city or town to another city or town before a permit for such 
removal has been issued by the board of health where the death occurred?" 

I answer your question in the negative. 

Under date of January 27, 1930, you requested my opinion on the 
following question : — 

"Has the 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?" 

That question I answered in the negative in my opinion of February 
8, 1930 (Attorney General's Report, 1930, p. 50). The reasons for my 
opinion as then given are set forth at length therein, and the same are 
applicable to the question which you now ask. Moreover, the provisions 
of G. L., c. 114, § 45, as amended, which I quote in part, preclude me 
from expressing any other than an opinion answering your question in the 
negative. G. L., c. 114, § 45, is as follows: — 

" ... no undertaker or other person shall bury or otherwise dispose 
of a human body in a town, or remove therefrom a human body which has 
not been buried, 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; . . . No such permit 
shall be issued until there shall have been delivered to such board, agent 
or clerk, as the case may be, a satisfactory written statement containing 
the facts required by law to be returned and recorded, which shall be 
accompanied, in case of an original interment, by a satisfactory certificate 
of the attending physician, if any, ... If death is caused by violence, 
the medical examiner shall make such certificate . . . The board of 
health or its agent, upon receipt of such statement and certificate, shall 
forthwith countersign it and transmit it to the clerk of the town for regis- 
tration. ..." 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Contract — Construction — Delivery of Power. 

A contract for the delivery of steam and electricity by Harvard College 
to the Commonwealth construed. 

June 2, 1931. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have requested my opinion as to the construction of 
certain clauses of an agreement between the President and Fellows of 



82 P.D. 12. 

Harvard College and the Commonwealth relating to the furnishing of 
steam, electricity and compressed air to the Massachusetts School of Art. 
The agreement provides for the delivery of the power by the college to 
steam mains, electric mains and pipe lines of the Commonwealth from 
a generating plant on the medical school property. Your question is 
whether, under the terms of the agreement, the Commonwealth is obli- 
gated to pay the whole or any part of the expenses incurred in connect- 
ing the generating plant and steam and electric mains of the college, as 
they existed at the time of the making of the agreement, with the con- 
duits of the Commonwealth at the property line of the college in Binney 
Street in Boston. 

It is part of the contention of counsel for the college that the provi- 
sions relating to the delivery of steam and electricity to the mains of 
the Commonwealth at the property line of the college in Binney Street 
(in particular, section 1 of article III and section 1 of article VI) have 
"no direct bearing on the payment for the connection built on the Col- 
lege property." I am of the opinion that these provisions, read in con- 
nection with the rest of the agreement, support my conclusion that it was 
not contemplated that the Commonwealth should pay for any connec- 
tions on the college property, although the absence of liabihty on the 
Commonwealth for the charges in question can be based upon other 
grounds. 

Section 1 of article III of the agreement provides that: — 

"The steam to be furnished by the College to the Commonwealth 
hereunder shall be delivered to the steam mains of the Commonwealth 
at the property line of the College in Binney Street, Boston, and the 
College shall have no responsibility for the transmission of the steam so 
delivered beyond the point where said steam mains cross said property 
line." 

Section 2 provides that: — 

"The Commonwealth shall construct . . . and . . . maintain and 
operate such tunnels, conduits, steam supply pipe lines and condensate 
return lines as may be necessary to obtain the steam from the steam 
mains of the College, and to return the condensate to the said steam 
mains." 

It is contended by the college that the steam mains thus referred to as 
those from which the steam was to be obtained and to which the con- 
densate was to be returned by the lines of the Commonwealth "natur- 
ally and necessarily were the mains existing at the date of the contract." 
The contention that this conclusion must follow from the language of 
the said section 2, on the theory that the words "the steam mains of 
the College" were not appropriate to designate mains not then existing, 
appears unsound in view of the use of the identical phrase in section 1 
in reference to "the steam mains of the Commonwealth at the property 
line of the College in Binney Street," which, I am advised, were likewise 
not in existence at the time of the execution of the contract. Also, in 
the corresponding provisions of article VI, section 2, relating to electric 
power, a similar phrase was employed to designate such electric mains 
of the college as were clearly not then in existence, namely: "The Com- 
monwealth shall construct . . . such conduits . . . etc., as may be nec- 
essary to obtain electricity at the delivery point from the electric mains of 
the College." It follows, therefore, that neither section 2 of article III 



P.D. 12. 83 

nor section 2 of article VI contains any undertaking on the part of the 
Commonwealth to construct or to pay for any installation on college 
property. 

It is noteworthy that in providing in article IV for the installation of 
steam meters, which were to be on college property and to be and re- 
main the property of the college, the drafters of the agreement recog- 
nized that in the absence of specific provision no implication would arise 
that the Commonwealth was to share in the cost. Accordingly, since 
such was the intention of the parties, it was specifically provided in said 
article IV that "the cost thereof (should) be divided equally between 
the parties thereto." It would seem clear that if there had been a simi- 
lar intention to divide the cost, or to impose upon the Commonwealth 
the whole cost, of much more extensive construction and installation on 
the property of the college, the agreement would have incorporated such 
intention in its terms. 

It was further specifically provided in said article IV that the records 
of the meters should at all times be accessible to the Commonwealth, as 
well as to the college, for checking and copying. No similar license is 
granted by the agreement to the Commonwealth to enter upon lands of 
the college for the maintenance and operation of tunnels, conduits, and 
supply and return hues on the property of the college, which would fur- 
ther indicate that the mains so to be maintained and operated were 
solely those not on property of the college, thus necessitating a construc- 
tion of the words "steam mains of the College," in section 2, that would 
include mains constructed after the execution of the agreement up to 
the property line. 

It is to be noted, also, that under the terms of section 1 of article III 
the responsibility of the college for the transmission of steam was to end 
at the property line. By section 2 the Commonwealth became obligated 
to maintain and operate the necessary supply and return lines to obtain 
steam from the mains of the college and to return the condensate to the 
same. To hold that the mains of the college thus referred to were only 
those in existence at the time of the making of the agreement would 
appear to be inconsistent with the undertaking of the college to be re- 
sponsible for the transmission of steam up to the property line. 

The provisions relating to electric service, some of which I have re- 
ferred to, are substantially similar to those relating to steam service, in 
the respects which are material to the question. My conclusion is, accord- 
ingly, the same as to the cost of both the steam and electric conduits 
and mains. 

To sum up briefly: The college has agreed to deliver steam and elec- 
tricity to the mains of the Commonwealth at the property line in Binney 
Street, but the Commonwealth has not undertaken to bear any part of 
the cost of whatever mains and conduits may have had to be constructed 
on college property to enable it to carry out its undertaking. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



84 P.D. 12. 

Constitutional Law — Municipalities — Taking — Use of Water. 

Neither the Fourteenth Amendment to the Constitution of the United 
States nor article X of the Declaration of Rights can be invoked to 
prevent a legislative change in existing laws which affects rights to 
the use of water under a contract made between two municipalities. 

June 10, 1931. 

Hon. Leverett Saltonstall, Speaker of the House of Representatives. 

Dear Sir: — You ask my opinion as to whether a bill, entitled "An 
Act relative to the supplying of water to the town of Southampton by 
the city of Holyoke," would, if enacted into law, be constitutional. 

The bill, if enacted, would amend St. 1896, c. 419 (an act to authorize 
the city of Holyoke to increase its water supply), by striking out section 
5 and inserting a new section in place thereof. 

St. 1896, c. 419, § 1, authorized the city of Holyoke, for the purpose of 
supplying its inhabitants with pure water for the extinguishment of fires 
and for domestic and other purposes, to "take by purchase or otherwise 
and hold the waters of the southwesterly branch of the Manhan river, 
at any point on said river not more than three thousand feet below the 
confluence of the Tucker and Manhan brooks, in the town of South- 
ampton, also the waters of Tucker and Manhan brooks and the springs 
connected therewith, and the water rights connected with such waters, 
and also all lands, rights of way and easements necessary for holding 
and preserving such water and for diverting and conducting the same 
into Ashley's and Wright's ponds, so-called, in said city of Holyoke, and 
also for conducting the same to any and all parts of said city." Section 5 
of said St. 1896, c. 419, provided as follows: — 

"The city of Holyoke shall, when constructing its pipe line through 
the town of Southampton, place a Y branch in said pipe line, not less 
than eight inches in diameter, at its own expense, at such point as may 
be designated by the selectmen of said town. If at any time thereafter 
the town of Southampton shall vote to construct a system of water works 
said town may connect its pipes with that of the city of Holyoke at the 
Y branch herein provided for, and draw from the pipe of the city of Hol- 
yoke, without expense to said town, such quantity of water as may be 
required by said town to supply its inhabitants with water for fire, do- 
mestic, and other purposes, except power, not exceeding one hundred 
and twenty-five gallons per day for each inhabitant." 

Said proposed bill provides that the following section be inserted in 
St. 1896, c. 419, in place of section 5 thereof: — 

"If at any time hereafter the town of Southampton shall vote to con- 
struct a system of water works the said town, for the purpose of supply- 
ing its inhabitants with water for fire, domestic and other purposes, 
except power, may connect its pipes with that of the city of Holyoke at 
a point in the town of Southampton designated by the selectmen of said 
town at the time of laying said pipe, and may draw free from the said 
pipe, without expense to the town, water to a quantity not exceeding 
gallons per day for each resident of premises supplied with water 
by said town, the total actual quantity to be so supplied free to South- 
ampton by the said city not to exceed million gallons. The said 



P.D. 12. 85 

town shall pay to said city for all water used in excess of million 

gallons annually at such rate and under such terms and conditions as 
shall be agreed upon by the boards of water commissioners of the munic- 
ipalities concerned, and in default of said agreement the rate, terms and 
conditions shall be determined by the board of public utilities." 

The General Court, in consideration of the rights and powers granted 
to the city of Holyoke by St. 1896, c. 419, imposed the conditions (in § 5 
thereof) that "when constructing its pipe line through the town of South- 
ampton" the said city should "place a Y branch in said pipe line, not 
less than eight inches in diameter, at its own expense, at such point as 
may be designated by the selectmen of said town," and that "if at anj^ 
time thereafter the town of Southampton shall vote to construct a sys- 
tem of water works said town may connect its pipes . . . and draw . . . 
such quantity of water as may be required by said town . . . not ex- 
ceeding one hundred and twenty-five gallons per day for each inhabitant." 
The city of Holyoke did construct a water system by virtue of the rights 
and powers conferred upon it by said St. 1896, c. 419, and did place a 
Y branch in its pipe line in said town of Southampton, in the place des- 
ignated by the selectmen of said town, for the purpose of supplying 
water to the inhabitants of said town in the event that it should vote 
to construct a system of water works. 

The town of Southampton, at its last annual town meeting, unanimously 
voted "to accept the water supply committee's report and authorize the 
selectmen to petition the General Court for permission and authority to 
borrow money and issue bonds to an amount not exceeding sixty thousand 
(60,000) dollars for the purpose of installing a water supply system." 
As a result of said vote a petition was filed with the General Court for 
such authority, and St. 1931, c. 339, was passed, authorizing the town of 
Southampton to make the desired loans and construct the proposed water 
supply system. 

The proposed bill was filed upon petition of the water commissioners of 
the city of Holyoke subsequent to the adoption of said vote by the town 
of Southampton. In effect, said proposed bill seeks to alter the amount 
of water which the town of Southampton may take, without expense, from 
the Y branch in the water system so constructed by the city of Holyoke. 

It is contended by the town of Southampton that St. 1896, c. 419, § 5, 
in view of the facts set forth above, constitutes a valid and binding con- 
tract, and that the proposed bill is unconstitutional in so far as it attempts 
to impair the obligations of said contract. U. S. Const., art. I, § 10. It 
is further contended by said town that the effect of St. 1896, c. 419, § 5, 
was to vest in the town of Southampton the right to take a certain definite 
quantity of water from so much of the water supply system of Holyoke 
as was constructed by said city under the authority of said chapter 419; 
that this right became the property of the town of Southampton in its 
private or proprietary capacity; and that the proposed bill effects a dep- 
rivation of property of the town without due process of law and without 
compensation, in violation of the Fourteenth Amendment to the Consti- 
tution of the United States. 

It is well established that any act of the Legislature which would affect 
the contract or property rights of any private citizen or private corpora- 
tion in the same manner as this bill affects the rights of the town of South- 
ampton would be in violation of the contract clause and the Fourteenth 
Amendment to the Constitution of the United States. Woodward v. 



so P.D. 12. 

Dartmouth College, 4 Wheat. 518; Boston & Lowell R.R. Corp. v. Salem 
& Lowell R.R. Co., 2 Gray, 1. 

It is also clear that, inasmuch as the contract or property rights of the 
town of Southampton arising by virtue of St. 1896, c. 419, § 5, relate to 
the ownership and conduct of a water supply system, they are held by 
said town in its strictly proprietary capacity. Woods v. Woburn, 220 
Mass. 416, 421; Pearl v. Revere, 219 Mass. 604, and cases there cited. 

It is also settled that the power of the Legislature, unrestrained by the 
contract clause or the Fourteenth Amendment to the Constitution of the 
United States, over the rights and property of municipalities held and 
used for "governmental purposes" cannot be questioned. Worcester v. 
Worcester Consol. St. Ry. Co., 196 U. S. 539; Mount Hope Cemetery v. 
Boston, 158 Mass. 509. 

The question presented, therefore, resolves itself to a determination of 
whether municipalities, holding contract or property rights in their pro- 
prietary capacity, are entitled to the same protection against impairment 
of the obligation of such contract rights or deprivation of such property 
rights by subsequent acts of the Legislature as is guaranteed to individuals 
or private corporations by the contract clause and the Fourteenth Amend- 
ment to the Constitution of the United States. 

The earlier decisions of the courts of many jurisdictions, including the 
Supreme Judicial Court of Massachusetts, held that municipalities are 
entitled to the protection of the contract clause and the Fourteenth 
Amendment to the Constitution of the United States as against subse- 
quent legislative acts impairing the obligations of their contracts and 
depriving them of property rights granted, made or held by them in their 
private or proprietary capacity. This question was before the Supreme 
Judicial Court of this Commonwealth in the case of Mount Hope Cemetery 
V. Boston, 158 Mass. 509. In that case, the matter before the court for 
decision was whether St. 1889, c. 265, which directed the transfer by the 
city of Boston of property held by it for cemetery purposes to a private 
corporation created by virtue of said act, was constitutional. In holding 
said act unconstitutional, the court said (pp. 513-519) : — 

"In the case before us, we have to determine whether the title of the 
city of Boston to the Mount Hope Cemetery is subject to legislative con- 
trol, and this involves an inquiry to some extent into the usages and laws 
in this Commonwealth relating to burying grounds, with a view of ascer- 
taining whether, in the ownership of such property, towns have heretofore 
been regarded or have acted merely as agencies of the State government. 

In view of all these considerations, the conclusion to which we have 
come is that the cemetery falls within the class of property which the 
city owns in its private or proprietary character, as a private corporation 
might own it, and that its ownership is protected under the Constitutions 
of Massachusetts and of the United States so that the Legislature has no 
power to require its transfer without compensation. Const, of Mass., 
Dec. of Rights, Art. X. Const, of U. S., Fourteenth Amendment." 

In the case of Spaulding v. Andover, 54 N. H. 38, the facts were as fol- 
lows: The Legislature of New Hampshire, by Laws of 1870, c. 12, and 
Laws of 1871, c. 3, had granted to the towns of that State the proceeds 
of certain bonds "to be devoted exclusively toward the reimbursement 
of the expenditures incurred by the town for war purposes during the 



P.D. 12. 87 

rebellion," and subsequently, by Laws of 1872, c. 26, had declared a por- 
tion of the proceeds of said bonds, which had been assigned to the town of 
Andover under the provisions of the Laws of 1870 and 1871, to "belong 
to and be the property of" certain individuals (those, namely, who, 
having been counted as part of the quota of the town, never received 
any bounty from the town). In holding chapter 26 of the Laws of 1872 
unconstitutional, the Supreme Court of New Hampshire said (pp. 55- 
56): — 

"In its pubhc character, the municipal corporation is subjected to the 
absolute control of state legislation, subject only to exceptional consti- 
tutional limitation. 'In its proprietary or private character,' says Judge 
Dillon, 'the theory is, that the powers of the legislature are supposed 
not to be conferred, primarily or chiefly, from considerations connected 
with the government of the state at large, but for the private advantage 
of the particular corporation, as a distinct legal personality; and as to 
such powers, and to property acquired thereunder, and contracts made 
with reference thereto, the corporation is to be regarded as quoad hoc, 
a private corporation, or, at least, not public, in the sense that the power 
of the legislature over it is omnipotent.' Dillon jMun. Corp., sec. 39. 

A constitutional act of legislation, which is equivalent to a contract, 
and is perfected, requiring nothing further to be done in order to its 
entire completion, is a contract executed. Whatever rights are thereby 
created, a subsequent legislature cannot impair. If the proviso, condi- 
tion, or limitation, enacted in 1872, had been engrafted upon or made a 
part of the reimbursement act, it would have been binding, and the town 
would take the benefits of the act, perhaps, with its burdens. Potter's 
Dwarris on Statutes 477. 



The law of 1872, declaring a portion of the fund which had been sol- 
emnly granted to the town of Andover to belong to and be the property 
of certain individuals, is invalid, as being contrary to that provision of 
the Federal constitution, art. 1, sec. 10, which declares that no state 
shall pass any law impairing the obligation of contracts." 

In the case of State ex rel. White v. Barker, 116 Iowa, 96, 57 L. R. A. 
244, the facts were as follows: The Legislature of the State of Iowa had 
"passed acts creating a board of waterworks trustees for cities of the first 
class, and authorizing the appointment of such board by the district 
court of the county in which such cities are located." Sioux City, prior 
to the passage of said act, "owned and operated its waterworks system." 
"The mayor (of Sioux City) made application to the district court of 
Woodbury county for the appointment of a board of trustees for the 
system, under the provisions of the acts of the legislature hitherto men- 
tioned," said trustees to take over the management of said water works 
system; and the District Court did appoint trustees upon said applica- 
tion. The Supreme Court of Iowa held that the act of the Legislature 
was unconstitutional, and that the trustees appointed by the District 
Court were unlawfully holding said positions and performing any duties 
thereunder. In its decision the court said (p. 251) : — 

"We have already called attention to the dual nature of municipal 
corporations, and have discovered that with respect to private and pro- 



88 P.D. 12. 

prietary rights and interests they are entitled to constitutional protec- 
tion. It is quite clear that the establishment and control of waterworks 
for the benefit of the inhabitants of the city is a matter that pertains to 
the municipality, as distinguished from the state at large. 

Having, then, a proprietary and private interest in its waterworks 
system, granted to it by the legislature, or incident to its power to acquire 
and hold property, the question recurs. May the management and con- 
trol of this property be taken out of its hands by the legislature, and 
invested in trustees appointed by the district court; especially where, as 
in this case, the trustees so appointed are in no respect responsible to 
the appointing power, and are not required to make reports thereto? 
We think not. If the city were a mere private corporation, it would 
need no argument to show that the. legislature could not take the man- 
agement of its property out of the hands of its officers and directors, and 
place it in the custody and control of officials, even if they be stockhold- 
ers, selected by persons who had no interest in the corporate entity, and 
who were in no manner responsible to those interested in the welfare of 
the organization. Such devestiture of property, or, what is the same 
thing, of its management and control, would be unconstitutional and void. 
The same rules have been applied to property held by a municipal cor- 
poration in its private and proprietary capacity." 

To the same effect, see Grogari v. San Francisco, 18 Cal. 590; Toivn of 
Milwaukee v. City of Milwaukee, 12 Wis. 93; Ellerman v. McMains, 30 
La. Ann. 190. 

The earlier decisions of courts of many jurisdictions, other than those 
cited above, hold that municipalities are not entitled to the protection of 
the contract clause or the Fourteenth Amendment to the Constitution 
of the United States against subsequent legislative acts impairing the 
obhgations of their contracts and depriving them of their property rights 
granted, made or held by them, either in their governmental or proprietary 
capacity. 

In Darlington v. Mayor of the City of New York, 31 N. Y. 164, the court 
entered into an exhaustive consideration and discussion of the law per- 
taining to the power of the Legislature in regard to the rights and prop- 
erty of a municipality (pp. 193-196) : — 

"City corporations are emanations of the supreme law making power 
of the State, and they are established for the more convenient govern- 
ment of the people within their limits. In this respect, corporations 
chartered by the crown of England, and confirmed at the revolution, 
stand on the same footing with similar corporations created by the legis- 
lature. Their boards of aldermen and councilmen and other officers 
are as truly public officers as the boards of supervisors, or the sheriffs 
and clerks of counties; and the property intrusted to their care and 
management is as essentially public property as that confided to the ad- 
ministration of similar official agencies in counties and towns. In cities, 
for reasons partly technical, and in part founded upon motives of con- 
venience, the title is vested in the corporate body. It is not thereby 
shielded from the control of the legislature, as the supreme law making 
power of the State. Let us suppose the city to be the owner of a parcel 
of land not adapted to any nnmicipal use, but valuable only for sale to 
private persons for building purposes, or the like. No one, I think, can 



P.D. 12. 89 

doubt but what it would be competent for the legislature to direct it to 
be sold, and the proceeds to be devoted to some municipal or other public 
purpose, within the city, as a court house, a hospital, or the like; and 
yet, if the argument on behalf of the defendants is sound, it would be 
the taking of private property for public use without compensation, and 
the act would be void. 

In the case of Woodward v. Dartmouih College (4 Wheat., 518), the particu- 
lar question was, whether the legislature of the State of New Hampshire was 
warranted in passing certain statutes, altering, in many important particu- 
lars, the charter of the corporation of Dartmouth College, and assuming 
to regulate the execution of its corporate franchises according to its views 
of public expediency. It was claimed by the college that this legislation 
was prohibited by the provision of the Constitution of the United States 
declaring the inviolability of contracts; and the answer to that claim was, 
that the college was a pubhc institution of the State of New Hampshire, 
and hence subject to the control of the law making power of that State. 
The main question, therefore, was, whether it was a private or public cor- 
poration. The judgment was, that, although it was, in a limited sense, 
public, as an artificial being existing by virtue of the laws, and in this 
respect partook of the pubhc character which belongs to all corporations; 
yet, when looking to the power of the State, it was to be regarded as a 
private corporation, such as a bank or manufacturing company. It is 
not important to point out the manner in which this conclusion was 
reached, as the case is here referred to only with a view to the distinction 
between the two classes of corporations and the authority of the legis- 
lature over them respectively. On behalf of the State of New Hamp- 
shire, it was argued that the prohibitorj^ provision of the Constitution 
should not be understood to comprehend the political relations between 
the government and its citizens ; or offices held within the. State for State 
purposes; or those laws concerning civil institutions which was said 
might change with circumstances, and be modified by act of the legis- 
lature. Chief Justice Marshall said, that the general correctness of these 
positions could not be doubted; and he added, 'that if the act of incor- 
poration be a grant of political power; if it create a civil institution to 
be employed in the administration of the government; or if the funds 
of the college be public property; or if the State of New Hampshire, as 
a government, be alone interested in its transactions, the subject is one 
in which the legislature of the State may act according to its own judg- 
ment, unrestrained by any limitation of its powers imposed by the Con- 
stitution of the United States.' But he held that, so far from this, the 
college was a private eleemosynary institution, the body corporate pos- 
sessing the whole legal and equitable interest, and possessing civil rights 
which were protected by the Constitution. Mr. Justice Washington 
said, 'that there were two kinds of corporations aggregate, viz., such as 
were for public government, and others of a private character.' 'The 
first,' he said, 'are those for the government of towns, cities, or the like, 
and, being for public advantage, are to be governed according to the 
laws of the land.' These, he said, were mere creatures of public institu- 
tion, created exclusively for public advantage. It would seem reason- 
able, he proceeds to say, that such a corporation may be controlled, and 
its constitution altered and amended by the government, in such man- 
ner as the public interest may require. Such legislative interference 



90 - P.D. 12. 

cannot be said to impair the contract by which the corporation was 
formed, because there is in reahty but one party to it; the trustees or 
governors of the corporation being merely the trustees for the pubhc, 
the cestui que trust of the corporation. (Story's Com. on the Const. ^ 
§ 1, p. 387; 2 Kent Com., p. 275.) The expression of Chancellor Kent, 
in the Commentaries, that where a municipal corporation is empowered 
to have and hold private property, such property is invested with the 
security of other private rights, is understood to mean only that it pos- 
sesses such rights against wrongdoers, and not that it is exempted from 
legislative control. These trustees or governors have no rights, interests, 
privileges or immunities which are violated by such interference." 

In the case of Trustees of Schools v. Tatman, 13 111. 27, the facts were 
as follows: The Legislature had passed an act directing the sale of a 
ferry franchise which it was alleged had been previously granted to the 
plaintiffs as officers of a school district. In holding this act constitutional, 
the court said (p. 30) : — 

"Franchises are creatures of the sovereign power, which it may grant 
or refuse at pleasure. Even if a franchise to keep a ferry on the sixteenth 
section had been granted to the trustees, it was competent for the legis- 
lature to revoke it. A grant of this character to a public corporation, 
may, at any time, be resumed by the State. It is not like the case of the 
grant of a franchise to an individual, or a private corporation. Public 
corporations are but parts of the machinery employed in carrying on 
the affairs of the State; and they are subject to be changed, modified, 
or destroyed, as the exigencies of the public may demand." 

In the case of East Hartford v. Hartford Bridge Co., 10 How. 511, the 
facts are as follows: The Legislature of the State of Connecticut had 
abrogated a franchise to maintain a ferry across the Connecticut River, 
which it had previously granted to the municipalities of Hartford and 
East Hartford. In declaring the act constitutional, the United States 
Supreme Court said (p. 534) : — 

"The grantees likewise, the towns being mere organizations for public 
purposes, were liable to have their public powers, rights and duties modi- 
fied or abolished at any moment by the legislature." 

To the same effect, see State of Maryland v. Baltimore & Ohio R.R. Co., 
3 How. 534; St. Louis v. Shields, 52 Mo. 351; Board of Education v. 
Aberdeen, 56 Miss. 518. 

In the recent case of Woods v. Woburn, 220 Mass. 416 (1915), the 
question of the constitutionality of a legislative act which impaired the 
contract rights of a municipality acting within its proprietary capacity 
was again discussed by the Supreme Judicial Court. In that case the 
court did not expressly hold that such act was unconstitutional, as in 
the case of Mount Hope Cemetery v. Boston, supra, but merely stated 
that "there would be grave doubt as to (its) constitutionality under 
the Fourteenth Amendment to the Constitution of the United States," 
and that the municipality "probably is entitled to all the protections" 
of the Constitutions of the United States and of this Commonwealth. 
The court said (p. 421) : — 

"There would be grave doubt as to the constitutionality under the 
Fourteenth Amendment to the Constitution of the United States of any 
statute which should undertake to annul such a contract as that here 



P.D. 12. 91 

under consideration. The city of Woburn owns and manages its sj^stem 
of water supply as a private commercial venture. Pearl v. Revere, 219 
Mass. 604, and cases there collected. A city or town doubtless owns 
property acquired for and devoted to a water supply in its strictly pro- 
prietary capacity. Mount Hope Cemetery v. Boston, 158 Mass. 509, 519. 
Higginson v. Treasurer tt School House Commissioners of Boston, 212 
Mass. 583. Worcester v. Worcester Consolidated Street Railway, 196 U. S. 
539. It thus probably is entitled to all the protections as to inviolability 
of its contracts undertaken in this connection which a private individual 
possesses under the Fourteenth Amendment, and can invoke its shield 
against legislation aimed to impair their validity. It cannot be pre- 
sumed in the absence of plain language to that effect that the Legislature 
would raise so serious a constitutional question by the enactment of 
any statute. But, without determining the constitutional question, as 
a matter of construction it must be held that none of the statutes enacted 
during the life of this contract applied to or affected it." 

The precise question at issue in this inquiry, namely, whether or not 
the contract clause and the Fourteenth Amendment to the Constitution 
of the United States prevent a State, through its Legislature, from en- 
acting laws which impair the obligations of a contract to which a munici- 
pality is a party, or which deprive a municipality of property held in its 
proprietary capacity, was decided by the Supreme Court of the United 
States in the recent case of City of Trenton v. State of New Jersey (May 
7, 1923), 262 U. S. 182. In that case the facts were as follows: The city 
of Trenton, as successor to a grant made by the State of New Jersey to 
a private corporation, conferring on said private corporation a perpetual 
right, unburdened by license fee or other charge, to divert all the water 
that might be required for the use of the said city or its inhabitants from 
the Delaware River, claimed the same rights possessed by its predecessor, 
and asserted that a subsequent act of the Legislature of New Jersey, im- 
posing a charge for water diverted in excess of a per capita maximum 
prescribed by said act, was unconstitutional in that it offended against 
the contract clause of the Constitution of the United States and took 
property owned by the said city, in its private or proprietary capacity, 
for public use without just compensation and without due process of 
law, in violation of the Fourteenth Amendment to the Constitution of 
the United States. The court held that the city could not invoke the 
contract clause or the Fourteenth Amendment, even assuming that the 
private corporation, its predecessor in title, might have done so if its 
rights had not passed to the city; that the power of a State over the 
rights and property of municipalities, whether held and used for govern- 
mental purposes or in a private or proprietary capacity, is unrestrained 
by the contract clause or the Fourteenth Amendment to the Constitu- 
tion of the United States; and that said contract clause and the Four- 
teenth Amendment imposed no constitutional restraints against the State 
in favor of its own municipality, even though it is acting as an organiza- 
tion to care for purely local needs in a private or proprietary capacity. 

In its opinion the court cited with approval the case of Mount Pleasant 
V. Beckwith, 100 U. S. 514, 524, in which it was held: — 

"Institutions of the kind, whether called cities, towns, or counties, are 
the auxiliaries of the State in the important business of municipal rule; 
but they cannot have the least pretension to sustain their privileges or 



92 P.D. 12. 

their existence upon any thing hke a contract between themselves and 
the legislature of the State, because there is not and cannot be any reci- 
procity of stipulation between the parties, and for the further reason 
that their objects and duties are utterly incompatible with every thing 
partaking of the nature of compact." 

In specifically discussing the distinction between a municipality acting 
in its governmental capacity and a municipality acting in its proprietary 
capacity, and in holding that such distinction furnished no grounds for 
the application of constitutional restraints, the court said (p. 191): — 

''The distinction between the municipality as an agent of the State for 
governmental purposes and as an organization to care for local needs in 
a private or proprietary capacity has been applied in various branches 
of the law of municipal corporations. The most numerous illustrations 
are found in cases involving the question of liability for negligent acts 
or omissions of its officers and agents. See Harris v. District of Columbia, 
256 U. S. 650 and cases cited. It has been held that municipalities are 
not liable for such acts and omissions in the exercise of the police power, 
or in the performance of such municipal faculties as the erection and 
maintenance of a city hall and courthouse, the protection of the city's 
inhabitants against disease and unsanitary conditions, the care of the 
sick, the operation of fire departments, the inspection of steam boilers, 
the promotion of education and the administration of public charities. 
On the other hand, they have been held liable when such acts or omis- 
sions occur in the exercise of the power to build and maintain bridges, 
streets and highways, and waterworks, construct sewers, collect refuse 
and care for the dump where it is deposited. Recovery is denied where 
the act or omission occurs in the exercise of what are deemed to be gov- 
ernmental powers, and is permitted if it occurs in a proprietary capacity. 
The basis of the distinction is difficult to state, and there is no established 
rule for the determination of what belongs to the one or the other class. 
It originated with the courts. Generally it is applied to escape difficul- 
ties, in order that injustice may not result from the recognition of tech- 
nical defenses based upon the governmental character of such corpora- 
tions. But such distinction furnishes no ground for the application of 
constitutional restraints here sought to be invoked by the City of Trenton 
against the State of New Jersey. They do not apply as against the State 
in favor of its own municipalities. We hold that the City cannot invoke 
these provisions of the Federal Constitution against the imposition of 
the license fee or charge for diversion of water specified in the state law 
here in question. In view of former opinions of this Court, no substan- 
tial federal question is presented. Pawhuska v. Pawhuska Oil & Gas 
Co., supra, and cases cited." 

The decision in the case of City of Trenton v. Neiv Jersey, 262 U. S. 
182, has been followed in numerous decisions of that court and of other 
courts, and the principle enunciated therein has been reaffirmed. See 
Puget Sound Power & Light Co. v. King County, 264 U. S. 22, 25; Risty 
V. Chicago, R. I. ci' Pac. Ry. Co., 270 U. S. 378, 390; Railroad Commis- 
sion V. Los Angeles Ry. Corp., 280 U. S. 145, 156. 

A further contention has been raised that this bill constitutes a dep- 
rivation of property rights of the town of Southampton held by it in its 
proprietary capacity, and that such deprivation is in violation of the 
Constitution of Massachusetts (Declaration of Rights, art. X). 



P.D. 12. 93 

The Supreme Judicial Court of Massachusetts has held in many cases 
that the rights and privileges conferred by the Constitution of Massa- 
chusetts are substantially the same as those conferred by the Fourteenth 
Amendment to the Constitution of the United States. 

In the case of Commonwealth v. Strauss, 191 Mass. 545, the defendant 
contended that the statute in question was "in conflict with the Four- 
teenth Amendment of the Constitution of the United States" and "in 
conflict with articles 1 and 10 of the Declaration of Rights in the Con- 
stitution of Massachusetts." In its decision in that case the court said: — 

"The rights relied upon under the Fourteenth Amendment to the Con- 
stitution of the United States, and under the Declaration of Rights in 
the Constitution of Massachusetts, are substantially^ the same, namely, 
the right of every person to his life, liberty and property, including free- 
dom to use his faculties in all lawful ways, 'to live and work where he 
will; to earn his livelihood by any lawful calling; to pursue any liveli- 
hood or avocation, and for that purpose to enter into all contracts which 
may be proper, necessary and essential to his carrying out to a successful 
conclusion the purposes above mentioned.'" 

In the case of Nelson v. Blinn, 197 Mass. 279, the court, in discussing 
the provisions of article X of the Declaration of Rights in the Constitu- 
tion of Massachusetts and the Fourteenth Amendment to the Constitu- 
tion of the United States, said : — 

"The appellant relies upon art. 10 of the Declaration of Rights, which 
guarantees to every individual protection in the enjoyment of his life, 
liberty and property, and upon the Fourteenth Amendment to the Con- 
stitution of the United States, which declares that no State shall deprive 
any person of life, liberty or property without due process of law. As 
applied to a case like the present, the prohibition in the amendment just 
referred to is as broad as the general provision in the Constitution of 
Massachusetts." 

See also Mount Hope Cemetery v. Boston, supra; Hyde v. Boston & 
Worcester St. Ry. Co., 194 Mass. 80; Attorney General v. Provident Insti- 
tution for Savings, 201 Mass. 23; Durgin v. Minot, 203 Mass. 26. 

It is therefore settled by decisions of the Supreme Judicial Court of 
this Commonwealth that the provisions of the Fourteenth Amendment 
to the Constitution of the United States and article X of the Declaration 
of Rights in the Constitution of Massachusetts are substantially similar 
with respect to the protection accorded against the deprivation of prop- 
erty without compensation. The decision of the Supreme Court of the 
United States in the case of City of Trenton v. New Jersey definitely 
established the principle that a municipality holding property in its pri- 
vate or proprietary capacity may not invoke the provisions of the Four- 
teenth Amendment to the Constitution of the United States as against 
the State. This results in a conflict of judicial opinion between the court 
of last resort of the United States and the Supreme Judicial Court of 
this Commonwealth. In so far as said conflict relates to the construc- 
tion of the Constitution of the United States, the decisions of the Su- 
preme Judicial Court of Massachusetts are no longer controlling. It 
would seem, in order that the construction and interpretation of similar 
constitutional provisions in the Constitution of the United States and in 
the Constitution of Massachusetts may be harmonious and consistent, 
that the Supreme Judicial Court, should the question again be presented 



94 P.D. 12. 

to it for determination, must hold that the provisions of article X of the 
•Declaration of Rights accord to a municipality holding property in its 
proprietary capacity no further rights or protection than is accorded to 
such municipality by the provisions of the Fourteenth Amendment to 
the Constitution of the United States. 

In my opinion, the proposed bill would be constitutional if enacted 
into law. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Auditor of the Commonwealth — Duties. 

The duties of the Auditor of the Commonwealth are to be fixed by the 
Legislature. 

Accounts of an institution which does not belong to the Commonwealth 
may not be audited. 

The Auditor has no authority to perform work which is not properly 
comprehended by the verb "to audit." 

The word "activities," as used in G. L., c. 11, § 12, is limited to units of 
the Commonwealth's service. 

The accounts of the Auditor's department are subject to scrutiny by the 
Governor and Council, and the Auditor is subject to written regula- 
tions made by them. 

June 10, 1931. 

Hon. Francis X. Hurley, Auditor of the Commonwealth. 

Dear Sir: — You have asked my opinion upon seven questions relat- 
ing to your duties as Auditor. 

"1. Whether or not the legislation of 1923 (St. 1923, c. 362), which 
purported to take away many of the powers of the Auditor's office, is 
constitutional." 

The position of Auditor was originally created by an act of the Legis- 
lature, St. 1849, c. 56. The office was provided for by Mass. Const. 
Amend. XVK, ratified in 1855. The qualifications for the office and 
the manner of election thereto were prescribed by the said article of 
amendment, and subsequently by Mass. Const. Amend. LXIV. With 
the exception of a provision for the Auditor's succession to discharge the 
duties of the Governor and Lieutenant-Governor when both of such 
offices are vacant (Mass. Const. Amend. LV), the Auditor's powers and 
duties are not prescribed by the Constitution. 

The Legislature, accordingly, may establish such powers and duties 
and may from time to time add to or subtract therefrom, so long as it 
does not alter the qualifications for the office or the manner of election 
thereto or the provision for succession. And the Legislature has so dealt 
with the office through a long series of enactments since the adoption of 
Mass. Const. Amend. XVII, ratified in 1855. 

The provisions of St. 1923, c. 362, which took away certain powers and 
duties previously vested by the Legislature in the Auditor or his depart- 
ment, do not appear, in so far as they dealt with such powers and duties, 
to have so exceeded the authority of the General Court in this respect 
that they can be said to be unconstitutional. 

"2. Are there any duties of the office other than those set forth in St. 
1923, c. 362, § 16?'' 



P.D. 12. 95 

Inasmuch as the duties of the Auditor have been left undefined and 
unenumerated by the framers of the constitutional amendments referred 
to, he is not required to perform any duties which have not been laid 
upon him by the Legislature. The Legislature, by the provisions of 
G. L., c. 11, § 12, as amended by St. 1923, c. 362, § 16, has provided for 
the performance of duties appropriate to his office. Authority to perform 
other services can be derived only from other legislative enactments 
granting it. 

"3. Under the 1923 legislation, which provides that the State Auditor 
shall annually make a careful audit of all departments, offices, commis- 
sions, institutions and activities of the Commonwealth, is it a duty of 
this office to audit the accounts of institutions like the Soldiers' Home in 
Chelsea, to which, I believe, the Commonwealth gives money each year?" 

G. L., c. 11, § 12, as amended by St. 1923, c. 362, § 16, reads as follows: — 

"The department of the state auditor shall annually make a careful 
audit of the accounts of all departments, offices, commissions, institutions 
and activities of the commonwealth, including those of the income tax 
division of the department of corporations and taxation, and for said 
purpose the authorized officers and employees of said department of 
the state auditor shall have access to such accounts at reasonable times 
and said department may require the production of books, documents 
and vouchers, except tax returns, relating to any matter within the scope 
of such audit. The accounts of the last named department shall be sub- 
ject at any time to such examination as the governor and council or the 
general court may order. Said department shall comply with any written 
regulations, consistent with law, relative to its duties made by the gov- 
ernor and council. This section shall not apply to the accounts of state 
officers which the director of accounts of the department of corporations 
and taxation is required by law to examine. The department of the state 
auditor shall keep no books or records except records of audits made by 
it, and its annual report shall relate only to such audits." 

It is specified by said statute that the accounts which are to be audited 
are those of "departments, offices, commissions, institutions and activi- 
ties of the Commonivealth." The accounts of an institution w^hich is not 
an institution of the Commonwealth itself nor of any of its departments 
are not to be examined. An audit may be made of money which "the 
Commonwealth gives," as you state, showing the disbursement of the 
same by the officials of the Commonwealth and its receipt by the prop- 
erly accredited beneficiary, but such a practice may not be enlarged so 
as to cover an audit of the accounts of the beneficiary. 

"4. Does the provision that the Auditor shall annually make a careful 
audit of the accounts of the institutions and activities of the Common- 
wealth carry with it the power to make a complete and independent 
investigation of conditions which might be disclosed in the course of an 
examination of the accounts?" 

I answer this question in the negative. Authority to audit, as the 
word "audit" is ordinarily used and as it is employed in G. L., c. 11, 
§ 12, as amended, does not import "power to make a complete and inde- 
pendent investigation of conditions which might be disclosed in the course 
of an examination of the accounts." 



96 P.D. 12. 

"5. What is the exact scope of the word 'activities' as used in the 
above-mentioned legislation? " 

As the word "activities" is employed in the context of G. L., c. 11, 
§ 12, as amended, it is limited to divisions or units of the Commonwealth's 
service expending or receiving moneys, of a like kind, though not neces- 
sarily included within the governmental subdivisions set forth in the 
same sentence immediately before it. 

"6. In the legislation of 1923 there is a sentence which reads, 'The 
accounts of the last named department shall be subject,' etc. What, in 
your opinion, did the Legislature mean by the words 'last named de- 
partment?'" 

The department referred to is the Department of the State Auditor. 
His department is the last named. The words immediately before the 
sentence containing the words "the accounts of the last named depart- 
ment" read, "and for said purpose the authorized officers and employees 
of said department of the state auditor shall have access to such accounts 
at reasonable times and said department may require the production of 
books, documents and vouchers, except tax returns, relating to any 
matter within the scope of such audit." 

"7. There is a sentence following the one above mentioned, which 
reads, 'Said department shall comply,' etc. What department, in your 
opinion, was meant in this sentence?" 

The department referred to is the Department of the State Auditor. 
The words "said department" follow immediately upon the sentence 
above referred to, which begins, "The accounts of the last named de- 
partment." 

I am confirmed in my opinion that the words "last named department" 
and "said department," specified in this and the foregoing question, 
refer to the Department of the State Auditor by the fact that section 
12 of G. L., c. 11, before the amendment of 1923, by its language made 
it perfectly clear that the Auditor's accounts were to be subject to an 
examination at the direction of the Governor and Council and that the 
Auditor was to comply with regulations of the Governor and Council. 
Although the Auditor is excused by the last sentence of said section 12, 
in its amended form, from keeping books or records, nevertheless it 
is apparent that the intent of the Legislature was that the Auditor's 
accounts should still be subject to scrutiny and that he should still be 
liable to regulation by the Governor and Council as much after the 
amendment as before. The meaning of the words in question is not so 
plain in their embodiment in the context of the section as amended ; but 
their meaning is clearly seen if we read them in connection with the 
section as it stood before amendment, the word "he" therein referring, 
by reference to the preceding section, as it then stood, to the State 
Auditor. Said section 12 of G. L., c. 11, before amendment was as 
follows : — 

"He shall annually examine the books, accounts and vouchers of the 
state treasurer. He shall at least once in each year, and oftener in his 
discretion, audit the accounts of all state departments, officers, commis- 
sions and institutions receiving money to be paid to the commonwealth. 
His own books and accounts shall he subject at any time' *o such examina- 
tion as the governor and council or the general court may order. He shall 



P.D. 12. 97 

comply with any written regulations, consistent with law, relative to the duties 
of his office made by the governor and council. This section shall not apply 
to the accounts of state officers which the director of accounts of the 
department of corporations and taxation is required by law to examine." 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement — Period of Service — Veteran. 

Under G. L., c. 32, § 57, as amended, a veteran who has been in the 
service of a city may add the period of such service to the period of 
service for the Commonwealth, in computing the total period which 
will render him eligible to retirement. 

June 13, 1931. 

His Excellency Joseph B. Ely, Governor of the Commonwealth. 

Sir: — Your Excellency has asked my opinion "as to whether or not 
a certain veteran employed in the Department of State Aid and Pensions 
is eligible for retirement under the provisions of G. L., c. 32, § 57." 

G. L., c. 32, § 57, as amended by St. 1923, c. 386, to which you refer, 
controls the matter. This section 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 sevice, at one half the regular rate of com- 
pensation paid to him at the time of retirement, and payable from the 
same source, if he is found by said authority to have become incapaci- 
tated 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." 

From the statute it will be seen that the payment of the pension lies 
in the discretion of the retiring authority, who in this instance is your- 
self, as specified by section 59 of said chapter 32. Before such discretion 
can be exercised in favor of the claimant the existence of certain condi- 
tions must be found, as a matter of fact, to exist, namely: (1) That the 
claimant is 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; (2) that the claimant has become incapacitated for active service; 
and (3) that he has a total income, as specified in section 57, of not 
exceding $500. 

The Attorney General does not pass upon questions of fact. These 
are for Your Excellency's determination. 

From the papers which were transmitted to me it would appear that 
the veteran seeking retirement had been in the service of the city of 
Peabody from March 23, 1921, to April 29, 1925, and in the service of 
the Commonwealth from March 24, 1925, to the date of his petition. 
The statute contemplates that service for the city may be added to service 
for the Commonwealth, to complete the total period of ten years of 
designated service, which is a necessary condition for receipt of the pen- 
sion. Various certificates furnished b}- the veteran appear to show the 
existence of the other conditions which entitle him to a pension. But the 



98 P.D. 12. 

weight to be given to this or any other evidence which may be submitted 
to you upon this point, and the ultimate conclusion to be based thereon, 
as well as the finding which may be made, rest with Your Excellency. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

South Metropolitan Sewerage District — Town of Weymouth — Acceptance 
of Statute by Town. 

The town of Weymouth is a member of the South Metropolitan Sewerage 
District by virtue of its acceptance of St. 1930, c. 419, at a town 
meeting, irrespective of the subsequent action of the voters of the 
town upon a referendum, so called, thereon. 

June 24, 1931. 

Hon. Davis B. Keniston, Commissioner, Metropolitan District Commis- 
sion. 

Dear Sir: — You ask my opinion whether "the town of Weymouth 
is now a member of the South Metropolitan Sewerage District," as pro- 
vided by St. 1930, c. 419, entitled ''An Act providing for the admission 
of the town of Weymouth to the South Metropolitan Sewerage District.'^ 

Under the provisions of St. 1930, c. 419, the territory of the town of 
Weymouth was admitted to the South Metropolitan Sewerage District, 
as defined in G. L., c. 92, § 1, and acts in amendment thereof and in 
addition thereto, subject to acceptance of said act as provided in sec- 
tion 6 thereof. Section 6 provides as follows: — 

"This act shall take effect upon its acceptance by a majority of the 
town meeting members of the town of Weymouth present and voting 
thereon at a meeting legally called for the purpose, not later than May 
first, nineteen hundred and thirty-one." 

The return of the town clerk of Weymouth to the Secretary of the 
Commonwealth, dated March 30, 1931, as required by G. L., c. 4, § 5, 
reads as follows: — 

"At the annual town meeting of the town of Weymouth, held on 
March 2, 1931 and by a legal adjournment to the 4th of said month, as 
provided for in the annual warrant, and all provisions of law having 
been complied with, a legal quorum being present, under article 31 of 
the warrant, reading as follows: 

'To see if the town will accept chapter 419 of the Acts of 1930.' 

Passed by a vote of 122 voting in the aflfirmative and 24 in the nega- 
tive, this vote was taken by a roll call of the town meeting members, 
present and voting. 

On March 10, 1931 a petition being signed by 153 voters of the town of 
which I as clerk of the board of registrars have certified that 148 names 
appear as voters of the town, was presented to the selectmen of the town, 
praying that this question be submitted to the voters at large, under 
the provisions of section 8 of chapter 61 of the Acts of 1921. The board 
of selectmen has voted to call a special meeting of the voters of the town 
to vote on this question, said meeting to be held on April 13, 1931." 

A subsequent communication to the Secretary of the Commonwealth 
from the town clerk of Weymouth, dated April 14, 1931, reads as fol- 
lows : — 



P.D. 12. 99 

"At a special town meeting of the inhabitants of the town of Wey- 
mouth, held on April 13, 1931, under a warrant duly signed by the select- 
men of said town, all provisions of law having been complied with, and 
held under the provisions of section 8 of chapter 61 of the Acts of 1921, 
upon the question: 

'Shall the town accept chapter 419 of the Acts of- 1930?' 
The result of the vote was — 

Yes 781 

No 1,852 

Blanks 1" 

The language of St. 1930, c. 419, § 6, quoted above, is clear. There can 
be no doubt of its meaning and of the intention of the Legislature, as 
therein expressed, that the effectiveness of the act depended solely upon 
the action of the "town meeting members of the town of Weymouth 
present and voting thereon at a meeting legally called for the purpose." 
There is no reservation or limitation on their action in this respect in 
the statute. Any action of the town meeting members thereon, affirma- 
J tive or negative, was to be final. The condition precedent to the effec- 
tiveness of the act, imposed by the Legislature, was executed when the 
town meeting members of the town of We3^mouth, at a meeting legally 
called for that purpose, took the action set forth in the return of the 
town clerk referred to above. The town of Weymouth became a member 
of the South Metropolitan Sewerage District at that time. 

It is claimed that the subsequent action of the voters of the town of 
Weymouth, as set forth in the communication received by the Secretary 
of the Commonwealth from the town clerk on April 14, 1931, herein- 
before referred to, nullifies the acceptance of the act by the town meeting 
members by virtue of the provisions of St. 1921, c. 61, §§ 5 and 8, which 
are as follows: — 

"Section 5. The articles in the warrant for every town meeting, so 
far as they relate to the election of town officers, and town meeting mem- 
bers, as hereinbefore provided, referenda, and all matters to be acted 
upon and determined by ballot, shall be so acted upon and determined 
by the voters of the town in their respective precincts. All other articles 
in the warrant for any town meeting shall be acted upon and determined 
exclusively by town meeting members at a meeting to be held at such 
time and place as shall be set forth by the selectmen in the warrant for 
the meeting, subject to the referendum provided for by section eight. 

Section 8. No measure passed at any representative town meeting, 
except a vote to adjourn or a measure appropriating or borrowing money 
for emergency purposes which shall contain a preamble specifying the 
facts constituting the emergency and requiring for its passage a separate 
vote of two thirds of the town meeting members present and voting 
thereon, shall become operative until after the expiration of five days, 
exclusive of Sundays and holidays, from the dissolution of the meeting. 
If, within said five days a petition, signed by not less than one hundred 
voters of the town, containing their names and addresses as appearing 
on the voting list is filed with the selectmen asking that the question or 
questions involved in such measure be submitted to the voters of the town 
at large, then the selectmen, after the expiration of five days, shall forth- 
with call a special meeting for the sole purpose of presenting to the voters 



100 P.D. 12. 

at large the question or questions so involved. The polls shall be opened 
at two o'clock in the afternoon and shall be closed not earlier than eight 
o'clock in the evening and all votes upon any questions submitted shall 
be taken by ballot, and a check list shall be used in the several precincts 
in the same manner as in the election of town officers. The questions 
submitted at the said town meeting shall be determined by vote of a 
majority of the voters at large voting thereon. The questions so sub- 
mitted shall be stated upon the ballot in the same language and form 
in which they were stated when presented to said representative town 
meeting by the moderator, and as they appear upon the records of said 
representative town meeting. If such petition be not filed within the 
said period of five days, the vote in the representative town meeting 
shall become operative and effective upon the expiration of said period," 

These provisions were not applicable to said St. 1930, c. 419. The 
vote of the town meeting members on the acceptance of said St. 1930, 
c. 419, was not a "measure," within the meaning of that word as used 
in section 8. As therein used, that word must be construed to mean 
those things which the town, acting by its town meeting members, may 
do under the general powers vested in towns, and such other votes of 
the town meeting members on any question under special laws which 
specifically provide for such referenda. The vote of the town meeting 
members on the acceptance of the act was not a proceeding under the 
general powers vested in towns; nor does it appear in said act, expressly 
or by implication, that final action upon the acceptance thereof was 
sought by the operation of the referendum provisions of St. 1921, c. 61. 

In my opinion, therefore, the town of Weymouth is now a member of 
the South Metropolitan Sewerage District. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Settlement — Domicil — Aid. 

The acquisition of a settlement cannot be predicated upon presence as 
a patient at a hospital in a particular city. 

June 29, 1931. 

Hon. Richard K. Conant, Commissioner of Public Welfare. 

Dear Sir: — You request my opinion in regard to the legal settlement 
of Joseph P. Connors upon the basis of the following facts: — 

"Has Joseph P. Connors a legal settlement? He was born in Nova 
Scotia in 1884 and had a legal settlement in Boston July 5, 1921, when 
he removed to Brookline with his wife and children. His wife has re- 
ceived aid, under the provisions of the General Laws, from the board of 
public welfare of Brookline since April 1, 1925. Mr. Connors has been 
supported by the city of Boston at its City Hospital, at public expense, 
during the following periods of time: November 11, 1924, to March 16, 
1925; March 11, 1926, to April 6, 1926; September 8, 1927, to April 9, 
1928." 

The statutory provisions pertinent to your inquiry are G. L., c. 116, 
§ 5, as most recently amended by St. 1926, c. 292, and as affected by 
St. 1927, c. 203, § 3. The provisions of said G. L., c. 116, § 5, are, in part, 
as follows: — 



P.D. 12. 101 

"Except as otherwise provided in this section, each settlement existing 
on August twelfth, nineteen hundred and eleven, shall continue in force 
until defeated under this chapter, but from and after said date failure for 
five consecutive years by a person, after reaching twenty-one years of 
age, to reside in a town where he had a settlement, shall defeat a settle- 
ment acquired under clause first of section one, . . . The time during 
which a person shall be an inmate of any almshouse, jail, prison, or other 
public or state institution, within the commonwealth or in any manner 
under its care and direction, or that of an officer thereof, or of a soldiers' 
or sailors' home whether within or without the commonwealth, shall not 
be counted in computing the time either for acquiring or defeating a 
settlement, except as provided in section two. . . ." 

A legal settlement in a city or town, once acquired, can be. defeated 
in two ways: (1) by the acquisition of a new settlement; and (2) by the 
"failure for five consecutive years ... to reside in a town where he had 
a settlement." Connors acquired no new settlement in Brookline because 
he has been receiving aid continually since April 1, 1925, and "no person 
shall acquire a settlement, or be in process of acquiring a settlement, while 
receiving relief as a pauper, unless, within two years after receiving such 
relief, he tenders reimbursement of the cost thereof to the commonwealth 
or to the town furnishing it." G. L., c. 116, § 2, as most recently amended 
by St. 1928, c. 155, § 9. 

The sole question at issue, therefore, is whether Connors' legal settle- 
ment in Boston was defeated by his failure to reside in Boston for five 
consecutive years. The word "reside," as used in statutes relative to 
settlement in this Commonwealth, means domicil. Stoughton v. Cam- 
bridge, 165 Mass. 251; Worcester v. Wilbraham, 13 Grav, 586; Wilbraham 
V. Ludlow, 99 Mass. 587, 591; Whately v. Hatfield, 196 Mass. 393. 

In the case of Whately v. Hatfield, supra, it was said: — 

"It often has been decided in the construction of our statutes relating 
to the settlement of paupers, and of those relating to taxation, that resi- 
dence for either purpose includes something more than mere physical 
presence. There must be on the part of the pauper, and of the taxpayer, 
the settled intention of choosing his place of residence with the object of 
making it his home." 

If Connors has failed to reside in Boston for five consecutive years, his 
legal settlement in Boston has been defeated; and if he "by such ab- 
sence (failure to reside) fails to acquire a settlement elsewhere, that cir- 
cumstance is immaterial. The statute must be construed in accordance 
with the intention of the Legislature as therein expressed." Layieshorough 
V. Ludloiv, 250 Mass. 99, 102. 

Connors has resided in Brookline since July 5, 1921. He has thus 
failed to reside in Boston since that date. It cannot be said that his 
presence in the City Hospital at Boston constituted a residence in this 
city so as to interrupt the continuity of his failure to reside in Boston, as 
it cannot be claimed that his presence there was with "the settled inten- 
tion of choosing" the City Hospital as "his place of residence with the 
object of making it his home." The only consideration to be accorded to 
this period of time during which he was a patient at this institution is 
that it should "not be counted in computing the time . . . for . . . de- 
feating a settlement." G. L., c. 116, § 5, as amended. Connors, there- 
fore, ceased to have a legal settlement in Boston upon the expiration of 



102 P.D. 12. 

the period of five years next succeeding the date he failed to reside in 
Boston, deducting from this computation the periods of time during which 
he was an inmate of the Boston City Hospital. As he has not during this 
period acquired a legal settlement in Brookline, he has no legal settlement 
in the Commonwealth at the present time. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Inspector of Apiaries — Right of Entry — Records. 

The Inspector of Apiaries has no right of forcible entry to a place where 

bees are kept. 
Records kept by the Inspector of Apiaries, under G. L., c. 128, § 37, are 

open to the inspection of the public. 

July 9, 1931. 

Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — 1. You have written me in relation to the Inspector of 
Apiaries as follows : — 

''The occasion has . . . arisen where an inspector has been refused 
admittance to a place where bees are kept. Before proceeding to dis- 
regard the protest of the landowner and enter upon the premises, your 
opinion is requested as to the rights of the Commonwealth in an instance 
of this kind." 

G. L., c. 128, § 36, provides: — 

"The inspector and his assistants shall have access to each place where 
bees, bee products or supplies or appliances used in apiaries are kept." 

The terms of this section, however, do not give to the said inspector 
a right of forcible entry for the purpose of gaining access to the place 
mentioned in the section. Section 38 of said chapter 128 provides: — 

"Whoever violates any provision of sections thirty-two to thirty-six, 
inclusive, shall be punished for the first offence by a fine of not more than 
ten dollars, for the second offence by a fine of not more than twenty-five 
dollars and for a subsequent offence by a fine of not more than fifty dol- 
lars." 

It would appear from the language of section 38, read in connection 
with section 36, that it was the intention of the General Court to make it 
an offence to prevent access by the inspector, as provided for in section 
36. Consequently, where such access is intentionally prevented, a crim- 
inal complaint under section 38 should be made in an appropriate district 
court against the person or persons who have so prevented the inspector 
from having the access designated by section 36. 

2. You have also written me as follows: — 

"A request has been made by a beekeeper to this department for per- 
mission to examine our records of apiary inspection. Your opinion is 
requested as to whether records of this kind are public records and open 
to indiscriminate inspection by any person desiring to review them. Has 
the Department of Agriculture authority to exercise discretion, and 
possibly restriction, in so far as this type of record, which deals with the 
number and location of diseased colonies of bees, is subject to examination 



P.D. 12. 103 

by persons, unless adequate reason is given relative to the need and use 
of such information?" 

G. L., c. 128, § 37, provides: — 

"The inspector shall keep a detailed record of the number and location 
of all apiaries visited by him or his assistants, the number and location of 
all colonies found diseased, the treatment thereof, and the expenditure 
incurred in the performance of the duties of his office. He shall report 
to the commissioner annually, and at such other times as he requests." 

G. L., c. 4, § 7, cl. 26th, as amended, defines "pubhc records," in part, 
as follows : — 

" 'Public records' shall mean any written or printed book or paper, 
any map or plan of the commonwealth, or of any county, city or town 
which is the property thereof, and in or on which any entry has been made 
or is required to be made by law, ..." 

By G. L., c. 128, § 37, the Inspector of Apiaries is required to keep a 
detailed record of certain definite things. There is no specific term of the 
statute which tends to show that such record is not to be open to the 
public. Such record, when placed upon paper, becomes a public record, 
under the foregoing definition of G. L., c. 4, § 7, cl. 26th, as amended, 
which embodies the general substance of the earlier definition contained 
in R. L., c. 35, § 5. 

G. L., c. 66, § 10, provides: — 

"Every person having custody of any public records shall, at reason- 
able times, permit them to be inspected and examined by any person, 
under his supervision, and shall furnish copies thereof on payment of a 
reasonable fee. In towns such inspection and furnishing of copies may 
be regulated by ordinance or by-law." 

Accordingly, it is the duty of the person having custody of the record 
made by the Inspector of Apiaries under G. L., c. 128, § 37, to permit the 
public to have access to it. Reports by the inspector relative to any other 
matters than those specifically enumerated in said section 37 are not such 
as he is required by law to make a record of, and are therefore not "public 
records" open to general inspection. If the inspector's records are con- 
tained only on cards, such as the sample w^hich you sent me, the public 
are entitled to see such cards. 

The facts which you have placed before me differ from those which 
were before certain of my predecessors in office, upon which they based 
opinions dealing with specific instances of papers and documents in con- 
nection with the status of such papers and documents as "public records." 
See VII Op. Atty. Gen. 8, and citations there noted. With such opinions 
I am in agreement ; but in the instant matter I am constrained to advise 
you that the records to which you have directed my attention are "public 
records." 

Yours very truly, 

Joseph E. Warner, Attorney General. 



104 P.D. 12. 

Division on the Necessaries of Life — Necessaries — Commodities — Ice 

Cream. 

Ice cream may be a commodity which is a necessary of life, so that cir- 
cumstances affecting the prices charged for it may be the subject of 
investigation by the Division on the Necessaries of Life. 

July 10, 1931. 

Mr. Herbert P. Wasgatt, Acting Commissioner of Labor and Industries. 

Dear Sir: — You have requested my opinion "as to whether or not 
the Division on the Necessaries of Life has authority under sections 9E, 
9F, and 9G of G. L., c. 23 (inserted by St. 1930, c. 410, § 3), to give hear- 
ings, to administer oaths, direct the attendance and testimony of wit- 
nesses and the production of books and documents and other papers 
relating to the charges made for ice cream." 

G. L., c. 23, as amended by St. 1930, c. 410, § 3, to which you direct 
my attention, provides, in part, with relation to the Division on the 
Necessaries of Life, as follows : — 

"Section 9E. The division shall study and investigate the circum- 
stances affecting the prices of fuel, gasoline and refined petroleum prod- 
ucts and other commodities which are necessaries of life." 

The Attorney General does not pass upon questions of fact. 

In an opinion by former Attorney General Jay R. Benton, VII Op. 
Atty. Gen. 244, in which I concur, the question of what commodities 
may, as matter of law, be deemed "necessaries of life" is considered at 
length, and the history of various enactments similar to the instant 
statute is reviewed. Without doubt "food" is a necessary of life. Ice 
cream is certainly a form of food, made from ingredients which are them- 
selves food. This is a matter of common knowledge, as is also the fact 
that the consumption of ice cream is so widespread throughout the Com- 
monwealth that in its more common forms, at least, it can scarcely be 
termed a luxury. It is not necessary for me to express an opinion as to 
whether or not a'l articles of food are to be considered as "commodities 
which are necessaries of life," within the meaning of said G. L., c. 23, 
§ 9E ; but for the purpose of aiding you in determining as a fact whether 
or not ice cream is one of such commodities, which determination of fact 
is to be made by you, I advise you that, as a matter of law, ice cream may 
be a commodity which is a necessary of life, so as to make "the circum- 
stances affecting the prices" charged for it a proper subject for study 
and investigation by the Division on the Necessaries of Life, under said 
section 9E. It follows that with relation to such study and investigation, 
if it be determined as a fact that ice cream is a necessary of life, the author- 
ity given to the said Division by G. L., c. 23, §§ 9F and 9G, may be 
exercised. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 105 

Probation Officers — Compensation — County Accounts. 

A probation officer's salary may be increased by the Superior Court 
although at the time of such increase there was a deficit in the appro- 
priation to which the salary was chargeable. 

July 30, 1931. 

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

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

" 1. Under G. L., c. 35, §§ 44-47, inclusive, can the Division of Accounts 
of this department approve the accounts of a county treasurer which 
show the payment of an increase in salary for an individual, which in- 
crease was granted at a time when there was an actual deficit in the appi'o- 
priation to which this salary was chargeable? This question arises in the 
case of a probation officer appointed under G. L., c. 276, § 83. 

2. If this individual has been retired under the provisions of G. L., 
c. 32, §§75 and 76, between January 1st and the date on which an appro- 
priation has been granted by the General Court (G. L., c. 35, § 34), can 
an increase be granted, after an appropriation has been made, which 
shall be retroactive and which will affect his retirement allowance?" 

I am advised that the probation officer to whom you refer and whose 
salary payment is now before you for consideration is a probation officer 
appointed by the Superior Court, and I confine myself to expressing an 
opinion in the premises solely upon such a probation officer, and do not 
attempt to answer your question in so far as it might appear to relate to 
probation officers appointed by inferior courts. 

As to the second question contained in your letter, I am informed that 
it is a purely hypothetical inquiry relating to no subject now before you 
for action, and, in accordance with the long-accepted practice of this 
department, I make no answer thereto. 

Probation officers are appointed under the provisions of G. L., c. 276, 
§ 83, which are as follows: — 

"The Superior court, the chief justice of the municipal court of the city 
of Boston, subject to the approval of the associate justices thereof, and 
the justice of each other district court and of the Boston juvenile court 
may appoint such male and female probation officers as they may re- 
spectively from time to time deem necessary for their respective courts; 
and if there is more than one probation officer in one court, one of 
such officers may be designated as chief probation officer. All officers so 
appointed shall hold office during the pleasure of the court making the 
appointment. The compensation of each probation officer appointed by 
the superior court shall be fixed by that court and by it apportioned from 
time to time among the counties wherein said officer performs his duties. 
In the municipal court of the city of Boston the chief justice of said court, 
subject to the approval of the associate justices thereof, and in other dis- 
trict courts and the Boston juvenile court, the justice thereof, shall fix 
the compensation of each probation officer appointed for such court, 
which compensation shall be subject to approval by the county commis- 
sioners and shall be paid by the county on vouchers approved respectively 
by the chief justice of the municipal court of the city of Boston or by the 
justice of such other district or juvenile courts." 



106 P.D. 12. 

It might be thought that the appointment of probation officers by the 
Superior Court and the payment of their salaries were prohibited by G. L., 
c. 35, §§ 32-34, inclusive, relating to county expenditures, which specif- 
ically provide as follows : — 

"Section 32. No county expenditure shall be made or liability in- 
curred, nor shall a bill be paid for any purpose, in excess of the appro- 
priation therefor, except as provided in the two following sections and 
in section fourteen. 

Section 33. If the appropriation for any purpose is insufficient to meet 
an expenditure required by law, the treasurer may, on the order of the 
county commissioners, pay the same from any money in the treasury. 
The commissioners shall place on their records a statement of all such 
payments with the reasons in detail therefor, and shall report fully and 
specifically thereon in their next annual report. 

Section 34. After December thirty-first and before the regular appro- 
priations have been made by the general court, the county commissioners 
and other officers authorized to incur liabilities payable by the county 
may incur liability at a rate of expenditure not in excess of that authorized 
for the same purpose for the preceding year, but not exceeding one half 
the last annual appropriation therefor. Payments therefor may be made 
from any unappropriated balance in the county treasury, to be charged 
to the regular annual appropriation when made. No new or unusual 
expense shall be incurred or permanent contract made, or salary increased 
until &n appropriation sufficient therefor has been made by the general 
court." 

In my opinion, however, the authority given by G. L., c. 276, § 83, to 
the Superior Court to appoint and to fix the salaries of probation officers 
is not limited by the terms of G. L., c. 35, §§ 32-34, inclusive, nor is it 
controlled by any other statutory provision. 

The history of legislation with respect to probation officers in the 
Superior Court shows that the Legislature intended to confer upon the 
court the power to appoint probation officers, to fix their compensation 
and to apportion such compensation among the counties where the officers 
perform their duties, with the sound discretion of the court as the only 
limitation upon its authority. Furthermore, that portion of G. L., c. 35, 
§ 34, referring to "new and unusual" expenses, which it might be sug- 
gested limits the power of the Superior Court in appointing probation 
officers, first appears in St. 1897, c. 128, § 2, whereas the power to appoint 
probation officers was first conferred upon the Superior Court by St. 1898, 
c. 511. It is not probable that the Legislature intended the subsequent 
statute to be limited by the prior one. 

Inasmuch as the Superior Court has been given by statutory provision 
this authority, which is an exercise of a judicial function (Catheron v. 
County of Suffolk, 227 Mass. 598), to fix the compensation of probation 
officers, the expenditure with respect to such compensation is one "required 
by law," as those words are used in G. L., c. 35, § 33. It is significant, as 
indicating a similar legislative interpretation of G. L., c. 276, § 83, to the 
effect that compensation of probation officers is an expenditure "required 
by law," within the meaning of those words as used in G. L., c. 35, § 33, 
that, in the enactment of an amendment to said chapter 35 by St. 1930, 
c. 400, § 5 (G. L., c. 35, § 56), classifying county salaries, offices and posi- 
tions, the office of probation officer (among certain other designated offices, 



P.D. 12. 107 

the salaries for which offices, with the exceptions of a single group, are 
created by statute and the payments of which salaries are plainly "re- 
quired by law") is exempted from classification by the County Classifica- 
tion Board. 

I am therefore of the opinion that the Division of Accounts can approve 
the payment by a county treasurer of an increase in salary for a probation 
officer of the Superior Court, although such increase was granted at a 
time when there was an actual deficit in the appropriation to which this 
salary was chargeable. 

Very truly yours, 

Joseph E. Warner, Attorneij General. 

Retirement System — Election — Workmen's Compeiisation. 

The Board of Retirement may retire an employee when the fact of his 
permanent incapacity has been established, if he has not exercised 
an election to take workmen's compensation therefor; and if there 
has been no such election the employee need not, as a condition of 
such retirement, refund payments received under workmen's com- 
pensation. 

July 31, 1931. 

Hon. Charles F. Hurley, Chairman, Board of Retirement. 

Dear Sir: — You request my opinion on the following set of facts: — 

"On November 4, 1922, a member of the Retirement Association, 
working as a fireman and night watchman, fell off a stepladder and broke 
his ankle, and was paid workmen's compensation covering a period from 
November 14, 1922, to April 19, 1923, at $16 per week, $360, and in addi- 
tion his hospital and medical expenses were paid. The employee agreed 
to the discontinuance of the compensation on the aforesaid date, and he 
was reinstated in the State service until compensation was renewed by 
agreement, covering a period from November 22, 1929, to December 23, 
1929, four and four-sevenths weeks at $16, $73.14, and he was again 
reinstated in the State service for less than one year. He has now applied 
to the Board for retirement for permanent incapacity, under G. L., c. 32, 
§ 2 (9), as amended." 

Your questions are as follows : — 

"1. May the Board retire the employee in the case cited above when 
the fact has been established that he is permanently incapacitated as a 
result of the injury in 1922? 

2. Has a person while receiving payments of workmen's compensa- 
tion any right to apply for retirement for permanent disability, provided 
he makes his application within two years from the date his name last 
appeared upon the pay roll? 

3. If a person has a right under question 2, and the Board of Retire- 
ment determines he may be retired for permanent incapacity, is the person 
required to refund the compensation previously paid or must he simply 
sign an agreement to discontinuance of compensation before pension pay- 
ments may be made to him?" 

The law applicable to this set of facts is to be found in G. L., c. 32, 
§ 2 (9), as amended, and § 2 (11) ; also in G. L., c. 152, § 73. These sections 
are as follows: — 



108 P.D. 12. 

G. L., c. 32, §2 (9) and (11): — 

" (9) Any member who is found by the board, after examination by 
one or more physicians selected by the board, to have been permanently 
incapacitated, mentally or physically, by injuries sustained through no 
fault of his own while in the actual performance of his duty, from the 
further performance of such duty, may be retired, irrespective of age 
and of his period of service, and shall receive yearly payments as follows: 
(a) an annuity at his age nearest birthda}^, as provided by section five 
(2) B; (b) such a pension from the commonwealth that the sum of the 
annuity under section five (^) B (a) and the pension shall equal one half 
the annual salary received by him at the time when the injury was received. 
Except as otherwise provided, a person retired under this paragraph shall 
not receive from the commonwealth any other sum by way of annuity, 
pension or compensation. In case of emergency, a retired officer or 
inspector of the department of public safety or a retired permanent mem- 
ber of the metropolitan district police may be called upon by the proper 
authority for such temporary active duty as such officer or inspector is 
able to perform, and there shall be paid to him for such service the dif- 
ference between the rate of full pay and the rate of pension received by 
him. Application for disabihty retirement hereunder shall be made in 
writing within two years after the date of the appHcant's last salary pay- 
ment, and pension and annuity payments granted under this paragraph 
shall be payable only from the date of receipt by the board of such appli- 
cation. The board may require re-examinations from time to time of any 
member of the association pensioned under this paragraph or under para- 
graph (8), and if the disability or incapacity is found no longer to exist 
the pension shall cease and there shall be refunded to such member such 
sum, if any, as the board finds then remaining to his credit in the annuity 
fund. 

(11) The word 'injuries', as used in paragraphs (9) and (10) of this 
section, shall mean any injury which is a natural and proximate result of 
an accident occurring in the performance and within the scope of duty 
and without fault of the member. The board may employ special exami- 
ners whenever, in its judgment, it is necessary to assist in determining the 
degree of disability under paragraph (8) or (9) of this section. The fee of 
each such examiner, not exceeding ten dollars in amount in any one case, 
shall be paid by the commonwealth. The decision of the board on the 
question of disability and retirement under said paragraph (8) or (9) 
shall be final. Payments under paragraph (10) shall not be made as of a 
date earlier than that of the receipt by the board of written application 
therefor, except that payments to a child of a deceased member shall date 
from the date as of which payments to his widow shall terminate." 

G. L., c. 152, §73: — 

"Any person entitled to receive compensation as provided by section 
sixty-nine from the commonwealth or from such county, city, town or 
district, who is also entitled to a pension by reason of the same injury, 
shall elect whether he will receive such compensation or such pension, 
and shall not receive both. If a person entitled to such compensation 
from the commonwealth or from such county, city, town or district receives 
by special act a pension for the same injury, he shall forfeit all claim for 
compensation; and any compensation received by him or paid by the 



P.D. 12. 109 

commonwealth or by such county, city, town or district which employs 
him for medical or hospital services rendered to him may be recovered 
back in an action at law. No further payment shall be awarded by vote 
or otherwise to any person who has claimed and received compensation 
under sections sixty-nine to seventy-five, inclusive." 

Under the provisions of law quoted above, the Board may retire any 
employee, provided (1) the Board finds that the employee is permanently 
incapacitated, mentally or physically, from the further performance of 
his duty, and that such permanent incapacity is the proximate result of 
injury sustained through no fault of his own, while in the actual perform- 
ance of his duty; (2) application for such disability retirement is made in 
writing within two years after the date of the applicant's last salary pay- 
ment; and (3) the employee has not, prior to the date of such application, 
exercised an election to receive compensation on account of permanent 
disability, under the provisions of G. L., c. 152. 

Payment of compensation to an employee under the provisions of G. L., 
c. 152, is material to the determinations of the Retirement Board only in 
so far as it may be construed as an election to receive such payment in 
lieu of pension. It is usual for the Industrial Accident Board, in the course 
of its determination of the amount of compensation award, to make a 
specific finding of fact as to whether the incapacity is total or partial. 
See G. L., c. 152, §§ 34 and 35. If the findings of fact of the Industrial 
Accident Board are such that they should be construed as determining that 
the employee is permanently incapacitated from the further performance 
of his duty, and the employee accepts compensation under such award 
and findings, this fact must be held to be an election to receive such com- 
pensation in lieu of pension, and, consequently, a waiver of his right to 
receive a pension under the provisions of G. L., c. 32. If the findings of 
the Industrial Accident Board do not constitute a determination that the 
employee is permanently incapacitated from the further performance of 
his duty, the receipt of compensation by the employee has no effect upon 
his rights under G. L., c. 32, § 2 (9). 

In my opinion, therefore, the answer to your first question is in the 
affirmative; the answer to your second question is in the affirmative 
unless the receipt of payments of workmen's compensation must be con- 
strued as an election to receive such payments in lieu of pension, as out- 
lined above; and the answer to your third question is that the employee 
need not refund the compensation previously paid before pension pay- 
ments may be made to him. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Registrar of Motor Vehicles — Fireman's Special License — Revocation. 

It is mandatory upon the Registrar of Motor Vehicles to revoke a fire- 
man's special license if he is the holder of another license as well, 
which has been revoked after conviction for operating while under 
the influence of intoxicating Hquor. 

July 31, 1931. 

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

Dear Sir : — You have asked my opinion upon the following question 
■of law: — 

"Is it mandatory for the Registrar to revoke the special license of a 



no P.D. 12. 

fireman, as well as to revoke the ordinary license issued by the Registrar, 
upon a conviction for driving while under the influence of liquor." 

G. L., c. 90, § 24, as amended, provides in its pertinent parts as follows: — 

"Whoever upon any way, or in any place to which the public has a right 
of access, operates a motor vehicle recklessly, or while under the influence 
of intoxicating liquor, . . . shall be punished by a fine ... or by im- 
prisonment ... A conviction of a violation of this section shall be 
reported forthwith by the court or magistrate to the registrar, who may 
in any event and shall, unless the court or magistrate recommends other- 
wise, revoke immediately the license of the person so convicted, . . . The 
registrar in his discretion may issue a new license to any person acquitted 
in the appellate court, . . . provided, that no new license shall be issued 
by the registrar to any person convicted of operating a motor vehicle 
while under the influence of intoxicating liquor until one year after the 
date of final conviction, if for a first offence, or five years after any sub- 
sequent conviction ..." 

G. L., c. 90, § 8, as amended, provides, with relation to license to oper- 
ate motor vehicles, as follows : — 

"Application for license to operate motor vehicles may be made by 
any person; ... A person to whom a license to operate motor vehicles 
has been issued, unless such license contains a special limitation or restric- 
tion, may operate any registered motor vehicle. Special licenses shall be 
issued to ojjerators of motor-propelled fire apparatus who are members of a 
municipal fire department. ..." 

G. L., c. 90, § 10, as amended, provides in part: — 

"No person shall operate a motor vehicle upon any way unless hcensed 
under this chapter, except as is otherwise herein provided; ..." 

The provision in said section 8 requiring the issuance of a special license 
to operators of motor-propelled fire apparatus who are members of a 
municipal fire department was inserted by St. 1921, c. 403. But G. L., 
c. 90, § 8, before such insertion, contained a provision that "special li- 
censes shall be issued to chauffeurs"; and section 24, as it was written 
before such insertion, provided, as now, for the revocation of "the license" 
of a person convicted of the offenses enumerated in said section 24. The 
requirement of a special license for a chauffeur was not repealed until the 
passage of St. 1923, c. 464, § 3. 

In the original act providing for licensing operators of automobiles (St. 
1903, c. 473) there was a provision (§ 4) that "special licenses for operat- 
ing automobiles or motor cycles for hire shall be issued," and section 9 of 
the same act (now embodied in G. L., c. 90, § 22) provided that "the 
commission may . . . revoke . . . the license issued to any person under 
section four of this act for any cause which it may deem sufficient." In 
St. 1906, c. 412, § 4, occurs the first provision making the revocation of "the 
license" mandatory after a conviction for driving under the influence of 
intoxicating liquor. It is apparent, then, that from the beginning of legis- 
lation upon the subject of licensing the operation of motor vehicles there 
has been more than one form of license which might be held by a single 
individual, yet, with relation to the revocation of the rights or privileges 
of the licensee his grant of rights or privileges in relation to operating 



P.D. 12. Ill 

upon the highways has been repeatedly referred to by the statutes in the 
singular as "the license." 

In G. L., c. 90, § 22, as now amended, the words "any hcense" and the 
words "the license" appear to have been employed by the Legislature as 
synonymous in the following sentence : — 

"The registrar may suspend or revoke any certificate of registration 
or any license issued under this chapter, after due hearing, for any cause 
which he may deem sufficient, and he may suspend the license of any 
operator ... in his discretion and without a hearing, and may order 
the license or registration certificate to be delivered to him, ..." 

The word "the" in statutory construction may, when the context 
appears to require it, be interpreted as referring to more than a single 
thing, when more than one are of the same general nature. Howell v. 
State, 164 Ga. 204; Noijes v. Children's Aid Soc, 70 N. Y. 481, 484. One 
of the definitions of "the" in the Century dictionary is as follows: — 

"A word used before a noun to indicate a species or genus: used in 
generalization." 

The foregoing considerations would seem to indicate an intention upon 
the part of the General Court that the words "the license," as used in 
said section 24, should comprehend all forms of particular hcenses held 
by an individual. 

There may be different forms of licenses relating to the various types of 
motor vehicles, but each of such special forms is, in its essential character, 
of the same general class or kind, namely, a grant of the right or privilege 
to operate motor-propelled vehicles upon the highways. The right or 
privilege to operate is the real subject matter of the grant to the individual, 
and the authority to revoke or suspend the license to operate is a bestowal 
of power to withdraw from the individual such right or privilege to operate 
upon the highway. The right or privilege is comprehensive, and in itself 
includes all forms of operation; and though by statutory provisions its 
exercise may be extended or limited in its application to different types of 
motor vehicles, yet, all such applications spring from the same right or 
privilege. (I use the expression "right to operate" in its general sense, 
and not within the limited significance specifically given to it in G. L., 
c. 90, §§ 3, 22 and 23, as amended.) 

It is apparent from the entire context of G. L., c. 90, as amended, that 
the revocation of the license to operate of a person who has been convicted 
of operating while under the influence of intoxicating liquor has been 
required by the General Court for the purpose of promoting public safety, 
and that the provisions of said section 24, which in mandatory terms 
require the Registrar to revoke the license of a person so convicted, indi- 
cate a legislative determination that public safety will be increased by 
forbidding, for a time, the operating of motor vehicles upon the highways 
by an individual convicted of such designated offence. It would be 
scarcely consistent with such a legislative determination to interpret the 
language used by the General Court in said section 24, wherein the Regis- 
trar is required to revoke the license of such a person to operate motor 
vehicles, as meaning that such a person, notwithstanding conviction, may 
still operate motor-propelled fire apparatus. 

Since the passage of St. 1930, c. 332, amending G. L., c. 90, as previously 
.amended, a motor-propelled fire apparatus falls within the definition of 



112 P.D. 12. 

"motor vehicles," as those words are used in G. L., c. 90, and a special 
license to operate such a piece of fire apparatus is a license to operate a 
motor vehicle, over which the Registrar has power of revocation under 
said section 24. 

I answer your question in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — Statutory Motor Vehicle Liability — Policy — Demerit System 
— Deductible Term. 

Consideration of a proposed demerit system and a system of deductible 
payments under the existing requirements for a statutory policy for 
motor vehicle liability insurance. 

Sept. 9, 1931. 

His Excellency Joseph B. Ely, Governor of the Commonwealth. 

Sir : — Your Excellency has requested my answer to the two questions 
which follow : — 

"1. Can a policy of insurance based on a demerit system be written 
under the existing automobile insurance law? 

2. Can a policy of insurance calling for the payment of the first $100 by 
the insuring party be written legally under the present insurance law? " 

1. The provisions of our statutes relating to compulsory liability insur- 
ance of motor vehicles do not specifically provide for any form of "de- 
merit system." There may, I assume, be various kinds of systems in 
connection with such insurance which might be included under the term 
"demerit." A system which, I am advised, has been frequently suggested 
in connection with proposed legislative changes in the present law involves, 
in a general way, a scheme by which the rates for premiums that insureds 
are required to pay to the insuring companies are to be fixed by the Insur- 
ance Commissioner at several different amounts, varying with the accident 
experience of the insureds. I assume, for the purposes of this letter, that 
Your Excellency has some such system as this in mind. Proposed legis- 
lation looking towards the creation of a system of this character was before 
the General Court this year but was not enacted into law. 

The Attorney General, following the practice long since established by 
his predecessors in office, does not undertake to pass upon questions of 
fact nor to express opinions upon the legality of undefined plans or schemes 
for administrative action, the details of which are not fully known to him. 
The duty of determining facts necessary to the fixing and establishing of 
such reasonable classifications and premium charges as are required by 
the Legislature for compulsory liability insurance upon motor vehicles, 
under the terms of G. L., c. 175, § 113B, as amended, rests upon the Com- 
missioner of Insurance. 

The law as it now stands embodied in said section requires the com- 
missioner to fix and establish "fair and reasonable classifications of risks 
and adequate, just, reasonable and non-discriminatory premium charges." 

It may be stated as a principle of law that the fixing or establishing of 
any premium charge which is not based solely upon a fair rate to the 
insurer for the hazard insured against, but includes also an amount added, 
either as a punitive measure or as a deterrent to negligence, which amount 
itself does not reflect with reasonable accuracy a fair payment for an 



P.D. 12. 113 

increased hazard, is not permissible under the provisions of said section 
113B or of any other provisions of existing law. Premium charges, which 
by the terms of the said section are required to be adequate and reason- 
able, become more than adequate for the payment of the insured, and 
arbitrary instead of reasonable, if an additional amount, not ascertained 
by the same mode of calculation, which results in the fixing of the original 
charge, be added to such charge as against said insureds. The following 
language, used in relation to a so-called "merit " rating plan for compulsory 
motor vehicle liability insurance by one of my predecessors in office, sets 
forth in a slightly different form the same general principle of law which 
I have expressed, and is equally applicable to a "demerit system" as to a 
"merit rating plan" (VIII Op. Atty. Gen. 115): — 

"If, as a matter of fact, it be possible to ascertain with reasonable 
accuracy from sufficiently reliable data that motor vehicle operators pos- 
sessing certain well defined attainments, experience and demonstrated 
skill in operation are, to a clearly defined extent, less hazardous risks than 
other operators, it could not well be said that a classification and schedule 
of premium charges, lower than for others, established by the Commis- 
sioner for cars driven solely by such operators, would be unreasonable or 
discriminatory. 

If, however, as a matter of fact, in the judgment of the Commissioner 
data is not available or experience is not tabulated in sufficient quantities 
to demonstrate with reasonable certainty the lessening in hazard to the 
insurer by the driving of cars by such persons instead of others, the adop- 
tion of such a classification, with incidental lower premium charges, would 
be unfair, unreasonable and discriminatory." 

I think that the foregoing considerations answer your first question, 
although it is impossible to furnish you an answer in a categorical form. 

2. My answer to Your Excellency's second question is in the negative. 
A proposed law providing for the issuance of a policy with a provision for 
a $100 deductible clause upon compulsory liability insurance for motor 
vehicles was before the Legislature this year but was not enacted. 

The existing statute with relation to compulsory liability insurance for 
motor vehicles does not permit the writing of a pohcy which calls for the 
payment of the first $100 by the insured instead of by the insurer. The 
"motor vehicle liability policy," which must be secured before a motor 
vehicle can be operated by owners who do not furnish a "motor vehicle 
hability bond" or make a deposit of cash in lieu thereof, is defined in 
G. L., c. 90, § 34A, as last amended by St. 1930, c. 340, § 1. In its perti- 
nent parts it reads as follows : — 

"'Motor vehicle liability policy,' a policy of liability insurance which 
provides indemnity for or protection to the insured and any person respon- 
sible for the operation of the insured's motor vehicle with his express or 
implied consent against loss by reason of the liability to pay damages to 
others for bodily injuries, ... to the amount or limit of at least five 
thousand dollars on account of injury to or death of any one person, . . ." 

It is apparent from the above-quoted words of said section 34A that it 
was the intention of the Legislature that an insurance company should 
bear the whole burden of loss devolving upon the owner of a motor vehicle 
to the full extent of five thousand dollars. It is equally apparent that the 
Legislature did not intend that, in case the insured's liability in a given 
instance amounted to one hundred dollars or less, the insurance company 



114 P.D. 12. 

was to pay nothing and the insured all the loss. There is no statutory- 
provision which vests authority in any official to vary the prescribed 
provisions of "the motor vehicle liability policy" so as to relieve the com- 
panies writing motor vehicle liability insurance of their obligations to pay 
losses in full. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement System — Counties — Officers — Age. 

An elective officer of Worcester County, who is a member of the retirement 
system, must retire at seventy. 

Sept. 12, 1931. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — You have asked my opinion upon the following question 
of law: — 

"Is a county commissioner of the County of Worcester, who has become 
a member of the retirement system of said county under Gen. St. 1919, 
c. 158, required by G. L., c. 32, § 22 (4), to retire from the service of said 
county at the age of seventy, and prior to the expiration of the term of 
four years for which he was elected under G. L., c. 34, § 4?" 

I answer your question in the affirmative. 

G. L., c. 32, § 22, as amended, in its pertinent parts, relative to members 
of the retirement system, reads as follows: — 

"Whenever a county shall have voted to establish a retirement system 
under section twenty-one, or corresponding provisions of earlier laws, a 
retirement association shall be organized as follows: 

(4) Any member who reaches the age of sixty and has been in the con- 
tinuous service of the county for fifteen years immediately preceding may 
retire, or be retired by the board upon recommendation of the head of the 
department in which he is employed, and any member who reaches the age 
of seventy shall so retire." 

Provisions similar to those above set forth in said clause (4) had been 
in effect under previous laws, now embodied in said chapter 32, since the 
passage of the original statute relative to county retirement systems (St. 
1911, c. 634). 

It is true that the general provisions relative to the formation, member- 
ship and administration of county retirement systems, as originally set 
forth in said St. 1911, c. 634, and finally embodied in G. L., c. 32, as 
amended, are peculiarly adapted to a system of which employees rather 
than elective officers are members. Nevertheless, a statute was enacted in 
1919 (Gen. St. 1919, c. 158) which provided for the inclusion of certain 
elective officers, namely, officers of the County of Worcester, in the county 
retirement system. Nor did such enactment make specific exemption of 
such officers who might become members of said system from the rule 
relative to compulsory retirement at the age of seventy, which, under the 
law as then in force, was applicable to all members of said system. Said 
Gen. St. 1919, c. 158, the law under which the official mentioned in your 
question joined the county retirement system, as you state in your letter, 
reads as follows : — 

"Officers of the county of Worcester elected by popular vote shall be 



P.D. 12. 115 

entitled to membership in the retirement association of said county, not- 
withstanding the provisions of paragraph three of section three of chapter 
six hundred and thirty-four of the acts of nineteen hundred and eleven, 
and all the provisions of said chapter and of acts in amendment thereof 
shall, except as is otherwise provided herein, apply to the said officers." 

As will be seen from the terms of the above statute, the officers of the 
County of Worcester elected by popular vote were not compelled to 
become members of the retirement system, but were entitled to that 
privilege if they cared to avail themselves of it. 

In the codification of the General Laws the provisions of said Gen. St. 
1919, c. 158, were embodied in c. 32, § 22 (3), and therein read as follows: — 

" No officer elected by popular vote, except in Worcester county, nor any 
employee who is or will be entitled to a pension from any county for any 
reason other than membership in the association may become a member." 

It has been suggested that the provisions of G. L., c. 32, § 91, in some 
manner modify the requirement of retirement at the age of seventy for 
elective public officers. Said section 91 reads as follows: — 

"No person while receiving a pension or an annuity from the common- 
wealth, or from any county, city or town, except teachers who on March 
thirty-first, nineteen hundred and sixteen, were receiving annuities 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." 

I am of the opinion that the provisions of said section 91 do not exclude 
members of the county retirement system who are also elective officers of 
Worcester County from the requirement of section 22 (4) compelling retire- 
ment at the age of seventy. The portion of said section 91 which relates 
to service in a public office was added to the laws relative to retirement 
systems by Gen. St. 1919, c. 80, shortly before the passage of the act 
which made elective officers of Worcester County eligible to membership 
in the retirement system. Having been passed before the enactment of 
the law relative to the elective officials of Worcester County, it has no 
tendency to show a legislative intent to modify the provisions of the 
existing county retirement system law in favor of such officials. 

The provisions of section 91, which made it possible for a person who 
is in receipt of a pension to receive in addition thereto a salary for service 
in a public office to which he has been elected by the direct vote of the 
people, necessarily assume that such person has already retired from the 
service of the Commonwealth or county, as the case may be, because 
otherwise he would not be in receipt of a pension. The only effect of sec- 
tion 91 is to provide that after retirement a pensioner may be elected to, 
and draw the salary incident to, an elective public office. As to whether 
or not he may be re-elected by popular vote to the same office from which 
he has been retired is immaterial as far as the question before me is con- 
cerned, and, accordingly, I do not express any opinion in regard thereto. 
Even if it be assumed that an official so retired from his elective office may 
be re-elected thereto by popular vote, it does not logically follow that 
such fact has any effect to show an intention on the part of the Legislature 
that he should not be required to retire at seventy, like all other members 



116 P.D. 12. 

of the county retirement system, because it does not necessarily follow 
from the fact that he may be so elected that he will inevitably be so elected. 
There is no inconsistency between the possibility of his being re-elected 
to an office and his being compelled to retire therefrom at a given age. 

The office of county commissioner is one whose term may be estab- 
lished and limited by the Legislature. The provision made by the Legis- 
lature for retirement at the age of seventy may, under certain circum- 
stances, be a limitation upon the term of the office of county commissioner. 
The office of county commissioner and the term thereof are therefore 
established and limited by the Legislature in such manner and to such 
extent by a maximum age provision as to incumbents. The present in- 
cumbent accepted the office so constituted and limited, and he cannot be 
heard to complain of the statute constituting and limiting the office; and 
since the term so constituted and limited is the term set up by the Legis- 
lature, it must be assumed that that was the term for which the electorate 
chose the particular official, who was incapable of serving for any other 
term by reason of the statutory provision concerning the age at which he 
must retire from his office. 

An analogous situation was considered by the Supreme Judicial Court 
in Attorney General v. Pelletier, 240 Mass. 264, 296. In the opinion in that 
case the court considered the nature of the office of district attorney, which 
is held subject to a particular mode of removal established by the Legis- 
lature; and the court laid down the principle that the elective officer took 
his office subject to its term being limited by an application of the statutory 
mode of removal, and that such statute relative to his removal involved no 
violation of any constitutional principle of State or Federal law. 

In determining the meaning of a statute, what is sometimes called legis- 
lative interpretation, expressed in or to be inferred from the terms of an 
act of the General Court bearing upon the statute under consideration, 
though subsequent thereto, is to be given some weight. Subsequent to 
the passage of Gen. St. 1919, c. 158, which is the original enactment of 
G. L., c. 32, § 22 (3), as I have previously stated, the Legislature, in 1920, 
by chapter 176 of the acts of that year, passed a law entitled "An Act 
relative to the retirement of certain officers of the County of Worcester," 
which reads as follows : — 

"Section 1. Any present incumbent of a county office in the county of 
Worcester, elected prior to the enactment of chapter one hundred and 
fifty-eight of the General Acts of nineteen hundred and nineteen, who has 
not become a member of the retirement association of said county, shall 
be entitled to become such a member at any time prior to July first, nine- 
teen hundred and twenty, and shall, irrespective of age, he entitled to hold 
office for the remainder of his present term of office. 

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

By the terms of the foregoing act the Legislature prescribed, par- 
ticularly and specifically, for the benefit of a certain individual elective 
officer of Worcester County, that he should have the privilege of remaining 
in office until the close of the term for which he had been elected, irrespec- 
tive of age. Clearly, the Legislature would never have passed such a 
statute if it had not interpreted its prior enactment (Gen. St. 1919, c. 158) 
as prescribing the compulsory retirement of elective county officers of 
Worcester County at the age of seventy. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 117 

Militia — Death of Member — Parents — Compensation. 

When a member of the Volunteer Militia is killed in the discharge of his 
duties, without fault, his parents are entitled, if he lived with them, 
to compensation at the rate of two-thirds of the deceased's pay plus 
ration allowance. 

Sept. 17, 1931. 

Brig. Gen. John H. Agnew, The Adjutant General. 

Dear Sir: — You have requested my opinion on the law relative to 
compensation payable upon the death, from injuries received in the 
service, of a member of the Volunteer Militia. You have set forth, in 
substance, the following facts: That one Thomas F. Guilfoil, of Worcester, 
was instantly killed by the accidental discharge of a machine gun on July 
22, 1931, while his organization was engaged in machine-gun practice at 
Camp Devens; that Guilfoil was sixteen years of age and still in school; 
that there was no evidence that he had ever in any way contributed to the 
support of his parents; and that he had never engaged in any gainful 
occupation, other than working around the house doing odd jobs for his 
father, for which his father paid him three or four dollars a week, but that 
he ran errands for neighbors and received an average of a dollar a week 
from that source. You ask, in effect, whether or not, under the provisions 
of G. L., c. 33, § 69, as amended, any compensation, and if so, how much, 
is due to the parents of said deceased. 

G. L., c. 33, § 69, as it was amended by St. 1927, c. 291, provides for 
compensation for members of the Volunteer Militia who have received 
injury in the course of their duties, without fault on their part, and, in 
case of death resulting therefrom, compensation to their dependents. The 
amount of such compensation and the persons entitled thereto are to be 
determined in accordance with the provisions of G. L., c. 152, § 1, cl. (3), 
and § 32, subject to § 31 of the same chapter. 

Said section 1, clause (3), defines the word "dependents." 

Said section 31, as amended, provides that if death results from the 
injury the insurer (in the instant case this would be the Commonwealth) 
shall pay those wholly dependent upon the employee for support a weekly 
payment equal to two-thirds of his average weekly wages. 

Said section 32, as amended by St. 1926, c. 190, provides that a parent 
is conclusively presumed to be wholly dependent for support upon a 
deceased employee, provided that the child is unmarried and under the 
age of eighteen years and was living with the parent at the time of the 
injury resulting in death. 

It is therefore immaterial to the present case whether or not the de- 
ceased ever contributed to his parents' support. The parents are con- 
clusively presumed to be wholly dependent upon him, providing he was 
living with them at the date of the injury resulting in his death. If he 
was only temporarily absent from home while attending camp, he would 
still be living with his parents at the time of his death, within the purview 
of this act. 

The next question, then, is how much should be paid to the parents. 

G. L., c. 33, § 69, as amended by St. 1927, c. 291, reads, in its pertinent 
parts, as follows : — 

"In case of death resulting from such injury, sickness or disease, com- 
pensation shall be paid to the decedent's dependents as determined in 
accordance with the provisions of clause (3) of section one of chapter one 



118 P.D. 12. 

hundred and fifty-two and section thirty-two of said chapter, in the 
amounts provided by, and otherwise subject to, the provisions of section 
thirty-one of said chapter; provided, that compensation to such de- 
pendents other than widows and children shall be based on the pay plus 
ration allowance hereinbefore mentioned, and that, for the purposes 
hereof, said board shall exercise all the powers given by said provisions of 
chapter one hundred and fifty-two to the department of industrial acci- 
dents." 

The question of what the deceased earned apart from his military duties 
is immaterial. The compensation should be based upon his pay plus 
ration allowance, in accordance with the provisions of said section 31 of 
chapter 152. Said section 31 provides that the compensation shall be 
two-thirds of the average weekly wages, not to exceed, however, ten 
dollars a week nor be less than four dollars a week, for a period of five 
hundred weeks, the total compensation, however, not to exceed four 
thousand dollars. It is a matter of fact peculiarly within the province of 
your board to determine the amount of said compensation as based upon 
his pay plus ration allowance. 

In view of the foregoing statutory provisions, the questions propounded 
in your letter, as to the probable earning capacity of the deceased in the 
future, had he lived, or the probable dependency of his parents in the 
future, are immaterial. 

You further inquire in your letter "whether or not the board is bound 
by the limitation in this section" (§ 33) "of chapter 152 for $100 for the 
reasonable expense of burial." 

The limit set on what may be paid for burial, under G. L., c. 152, § 33, 
as amended, is $150 and not $100. 

However, the provisions of G. L., c. 33, as amended, contain no pro- 
vision concerning the payment of burial expenses, nor do the terms of 
G. L., c. 33, § 69, as amended by St. 1927, c. 291, allow compensation to 
dependents to be based upon any sections of G. L., c. 152, as amended. 
Except section 1, clause (3), section 31 and section 32, none of the sec- 
tions of said chapter 152 provide for payment of burial expenses, which 
are mentioned only in section 33 of said chapter 152, and the provisions 
of this latter section are not included within those provisions of said chap- 
ter 152 under which your board may act by reference thereto contained 
in said G. L., c. 33, § 69, as amended. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

State Prison Colony — Swperintendent — Visitors — Search. 

The superintendent of the State Prison Colony may, in the exercise of a 
proper discretion, exclude all visitors not willing to submit to be 
searched; but he has no authority to search them without a warrant 
and without their consent. 

Sept. 22, 1931. 
Dr. A. Warren Stearns, Commissioner of Correction. 

Dear Sir: — You have requested my opinion upon a question which 
has arisen in connection with the administration of the State Prison 
Colony at Norfolk. In a letter to you the superintendent suggests a 
means by which possibility of the introduction of contraband might be 



P.D. 12. 119 

lessened, if not eliminated, namely, by the superintendent's making his 
permission to enter or visit the colony conditional upon the visitor's sub- 
mitting himself to search or in writing expressing himself as willing to be 
searched. You ask whether the superintendent may legally impose such 
a condition upon visitors, and whether, if so, it is proper to search the 
visitor after he has granted the permission; also, whether the superin- 
tendent "can search a visitor before entering the grounds, without his 
permission." 

My answer to the first two questions is in the affirmative, and to the 
third in the negative. 

The superintendent of the State Prison Colony is, by section 41C of 
G. L., c. 125, as added by St. 1927, c. 289, § 1, charged with the care, 
custody and control of all prisoners removed to the State Prison Colony. 
By virtue of this duty the superintendent has a large discretion in deter- 
mining what measures are necessary not only for the protection of the 
prisoners while they are under his control but also for their retention in 
that control. This power, correlative with his duty, is recognized in that 
provision of G. L., c. 127, § 37, which reads: — 

"He [the warden of the state prison] maj^ refuse admission to a person 
having a permit [from the commissioner or the warden] if such admission 
would be injurious to the best interests of the prison, ..." 

This provision I believe to have been made applicable to the State 
Prison Colony by G. L., c. 125, § 41E (added by St. 1927, c. 289, § 1), 
which provided: — 

"All provisions of law applying generally to the institutions under the 
control of the department of correction shall apply to the state prison 
colony." 

Even if no such statutory expression of the superintendent's power to 
exclude visitors existed, he would, in my opinion, be invested with such 
a power by virtue of his responsibility for the management of the colony 
and the custody of the prisoners. In Shields v. State, 104 Ala. 35 (1894), 
the court stated that a jailer, "if he apprehends injury to the jail or the 
introduction therein of things forbidden, or the instrumentalities of escape," 
may require whoever may seek admission into the jail to submit their per- 
sons to search. In my opinion, the keeper of a jail or prison would not be 
required to justify an exclusion of all visitors except such as would submit 
to search by showing that injury or danger was apprehended in each par- 
ticular case, but that it is sufficient that in his judgment such a rule apply- 
ing to all cases is reasonably necessary. 

If consent to be searched is given by a person, there is no question but 
that a search of that person, unless and until such consent be withdrawn, 
is proper. 

As to your third question, I beg to advise you that the superintendent 
has no power, without a warrant, to search a person upon suspicion that 
he may have upon his person articles which should not be introduced into 
the colony. If a person refuse to allow himself to be searched, the superin- 
tendent may refuse him admission, but may not search him. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



120 P.D. 12. 

Counties — Employees — Basis of Compensation — Classification. 

Consideration of the provisions for the classification of county employees 
under St. 1930, c. 400. 

Sept. 29, 1931. 
Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — In a written communication you have asked my opinion 
on three questions of law at the request of the County Personnel Board, 
which, through a reference on appeals that it is required to make to the 
Director of Accounts, has a certain connection with your department. 
The questions appear, from the facts stated in your communication, to 
have a direct bearing upon an appeal now before said board for its deter- 
mination, and I answer the questions for the guidance of the board in the 
performance of its duties. The questions are: — 

"1. Does St. 1930, c. 400, require the payment of all employees on a 
regular salary or wage basis to the exclusion of so-called 'piecework,' or 
the payment on the basis of a measured unit of product? 

2. If, previous to the effective date of St. 1930, c. 400, an employee 
had been employed on a 'piecework' basis, and if such employee had been 
permitted to work longer than the regular hours established for the trans- 
action of public business, thus increasing her gross earnings, would the 
employing officials and the County Personnel Board be required to con- 
sider such gross earnings as the minimum amount to which she will be 
entitled under the provisions of section 9 of said chapter 400? 

3. Under the provisions of chapter 400, section 9, above referred to, 
can the employing officials change the basis of compensation of an em- 
ployee from 'piecework' to a regular salary basis, and if so, is there any 
legal 'rate of pay,' as set forth in said section, below which her salary 
cannot be fixed?" 

St. 1930, c. 400, by section 5, amended G. L., c. 35, "by adding thereto, 
under the caption. County Personnel Board and Classification of 
County Salaries, Offices and Positions," nine new sections, numbered 
48 to 56, inclusive, and, by sections 7 to 9, inclusive, set forth certain 
provisions applicable to such classification. It is provided therein: — 

By section 48 of the amendment to G. L., c. 35, a County Personnel 
Board is estabhshed, the membership of which is to consist of three county 
commissioners, to be elected from among the various county commis- 
sioners of the Commonwealth in a designated manner. 

By section 49 "every office and position whereof the salary is wholly 
payable from the treasury of one or more counties, or from funds adminis- 
tered by and through county officials," with certain prescribed exceptions, 
shall be classified by the board, and every such office or position now 
existing or hereafter established shall be allocated by the board to its 
proper place in such classification. 

By section 50 "the director of accounts shall (a) prepare and submit to 
the board classification and compensatio7i plans, together with such rules 
for the administration thereof as he may deem proper ..." 

By section 51 "the board shall (a) pass upon and finally adopt and 
put into effect, with such modifications, changes and additions as it shall 
deem proper, the classification and compensation plans and rules for their 
administration proposed by the director of accounts under section fifty; 



P.D. 12. 121 

...(c) pass upon and finally determine appeals relative to classifica- 
tion, as provided in section fifty-two ..." 
By section 52: 

"The classification and allocation of offices and positions required to be 
classified and allocated by section forty-nine shall be according to their 
respective duties and responsibilities. The classification shall be estab- 
lished by specifications defining for each office or position or class of offices 
or positions the title, duties and responsibilities thereof. . . . 

Any incumbent aggrieved by the allocation or classification of his office 
or position may, in writing, appeal to the board. Such appeal shall be 
filed with the appellant's board of county commissioners, who shall for- 
ward the appeal to the board, accompanied by a report and their recom- 
mendations thereon. The board shall refer the appeal to the director of 
accounts, who shall investigate the merits thereof and report to the board. 
The board shall then finally determine the appeal after hearing all persons 
interested." 

By section 53 the duties of county commissioners with relation to the 
board and receiving and forwarding appeals under section 52 are enumer- 
ated. 

By section 54: 

"Newly elected or appointed officers or employees shall receive the 
minimum rate in the scale for the class to which the oflfice or position has 
been allocated; provided (1) that where a person already in the service 
is transferred or demoted, or a former officer or employee is reinstated to 
an office or position in the class, he shall enter the office or position at the 
rate which he last received, except that, if the rate received in the former 
office or position is higher than the maximum of the class, he shall receive 
the maximum rate; and provided (2) that the board, upon recommenda- 
tion of the proper county commissioners, supported by evidence of special 
fitness and exceptional circumstances satisfactory to them, may approve 
an entrance rate greater than the minimum rate; and provided (3) that 
less than the minimum rate may be paid in cases found by the board to be 
exceptional. ..." 

By section 55: 

"Except as otherwise expressly provided, all salaries established under 
the authority of sections forty-eight to fifty-six, inclusive, shall be in full 
compensation for all services rendered, and every officer or employee shall 
pay all fees and other moneys received directly or indirectly in the course 
of his pubhc employment, into the county treasury; provided, that 
nothing contained in said sections shall prevent the reimbursement of 
actual and other expenses necessary for the transaction of public business 
or the payment of overtime approved by the county commissioners, upon 
evidence of necessity therefor." 

By section 56 special provisions for performance of duties in Suffolk 
Count}^ and by special agencies in other counties are established. 

By section 7 of said chapter 400 it is provided that the Director of 
Accounts shall use, as a general basis for the initial classification and com- 
pensation plans which he is to submit to the board, the plans set forth in 
Appendix A of Senate Document 270 of 1930. 

By section 8 of said chapter 400 the effective date for the initial classi- 
fication and compensation plans and rates is set as January 1, 1931. 



122 P.D. 12. 

By section 9 it is provided : 

"Rates of pay of officers and employees subject to this act in effect 
immediately prior to the effective date of classification hereunder shall be 
adjusted to the classified rates of compensation provided under the 
authority of this act in accordance with the following plan: (a) the rate 
of pay of an officer or employee receiving on said date more than the 
maximum prescribed for the class to which he is allocated shall not be 
reduced so long as he is filling the same office or position and performing 
the duties thereof; (6) the rate of pay of an officer or employee who, on 
said date, is paid a rate between the minimum and the maximum of his 
class which does not correspond with any intermediate rate shall be 
adjusted as early as fiscal requirements permit to the next higher rate; 
and (c) the rate of pay of an officer or employee receiving on said date less 
than the minimum prescribed for a class may be increased in the discre- 
tion of the county commissioners of his county to the minimum rate of 
the class. The right of the incumbent of an elective county office to 
continue to receive compensation under the provisions of this section shall 
not be affected by his re-election." 

I assume, from the facts set forth in your communication, that the plan 
for classification and compensation for county offices and positions has 
been finally adopted and put into effect by the said board under section 
51. I understand, also, from the facts which you have set forth, that the 
appeal now before the board, upon which they are to make a determina- 
tion and with regard to which their questions relate, is that of an employee 
whose position, to which she has been allocated, is that bearing the title of 
senior typist, and that her salary in such position is the maximum appro- 
priate thereto as such salary has been established by the board under the 
compensation plan finally adopted by it. I assume, also, from the tenor 
of your communication, that the appeal is not based upon an alleged error 
in the allocation or classification of the position of the employee as that 
of senior typist, except in so far as the maximum salary of such position, 
established under the compensation plan, may be in conflict with the 
provisions of clause (a) of section 9 of said chapter 400 in its application 
to this particular employee, inasmuch as by allocation to the said position 
the employee's pay is reduced below that which the employee was receiv- 
ing before the plan went into effect. 

The provision giving an employee a right of appeal to the board is 
contained in section 52 of G. L., c. 35, as amended, and is: — 

"Any incumbent aggrieved by the allocation or classification of his 
office or position may, in writing, appeal to the board." 

It is to be noted that it is not perfectly clear that an appeal will lie by 
an employee whose position is properly classified but whose pay is claimed 
not to have been properly adjusted in accordance with the provisions of 
section 9; but I am of the opinion that the language of the statute with 
reference to the right of appeal, just quoted, is to be construed broadly, 
and that, inasmuch as the compensation plan and the adjustments of 
rates of pay are so closely bound up by the statute with the allocation and 
classification of positions, an alleged mistake which has been committed 
in regard to the established compensation of an individual, due to an 
alleged failure to make the adjustments required by section 9, may be a 
subject of appeal to the board, and that any error with relation thereto 
may be corrected by the board. 



P.D. 12. 123 

1. I answer your first question to the effect that it appears from the 
whole context of St. 1930, c. 400, read in connection with Senate Document 
numbered 270 of the year 1930, with its Appendix A, referred to in section 
7 of said chapter 400, that it was the intent of the General Court that a 
general scheme should be set up by which employees should be under a 
compensation plan which in the main required the payment of regular 
salaries. It cannot be said, however, that the intention of the Legislature, 
as expressed by the language used in said chapter 400, was to make an 
absolute prohibition of the classification of any positions having a com- 
pensation scheme based upon piecework, where peculiar situations existed 
making such classification and such payment by piecework necessary. 

In the formulation of a plan such as the Legislature has endeavored to 
provide for, it has necessarily left much discretion in the arrangement of 
details to the Director of Accounts and to the County Personnel Board, 
and when such discretion is properly exercised it certainly cannot be said 
in any instance that the establishment of a regular salary is forbidden by 
the terms of the act, nor can it be definitely said that under certain excep- 
tional circumstances the establishment of a classification of positions and 
a compensation plan bearing on such positions, establishing compensation 
on a basis of piecework or a system other than a salary, would necessarily 
be unreasonable. It would seem, however, that the establishment of 
salaries was the normal mode intended to be employed in putting into 
effect the compensation plan provided for by the General Court. 

2. I answer your second question in the negative. Although the pro- 
visions of section 9 in effect forbid the reduction in compensation of a 
county employee by reason of the classification of his position in a group 
which is entitled to a maximum compensation less than the compensation 
which such particular employee was receiving prior to the effective date 
of the plan, nevertheless, it is plain that the pay or compensation of em- 
ployees, which is dealt with by said chapter 400 (and the adjustments 
which are to be made in connection therewith), is to be paid for work per- 
formed during the regular hours established for the transaction of public 
business. It would follow from this that an employee who had been earn- 
ing under a piece system or under any other system money for overtime 
work, which money so received for overtime work brought his total pay- 
ments to an amount greater than the maximum set up for the class to 
which his position is allocated under the new plan, cannot complain if such 
maximum equals the amount which the same employee would have 
earned by piecework during the regular hours only. 

3. My answer to your third question is comprehended in my answers 
to the other two questions. In setting up the new plan and finally adopt- 
ing it, the board has authority to establish the compensation of an em- 
ployee within any classified position upon a salary basis, and the amount 
of compensation which an individual employee in such position is to be 
paid must equal the amount which said employee earned previously to 
the putting into effect of the new plan, under said chapter 400, during the 
regular hours established for the transaction of public business. 

In passing upon the appeal of an employee, the board will, of course, 
direct its attention to seeing that the employee's salary or compensation 
is set at an amount equal to that which he was receiving before the classi- 
fication for work performed during regular office hours, even if such amount 
exceeds the maximum established for the class in which the employee's 
position has now been allocated ; and in doing this the board will review 
all the facts relative to prior payments. If there be any error in the mode 



124 P.D. 12. 

of calculation adopted in the report from which the appeal is taken, you 
will, of course, correct it, so that the employee's compensation will be 
adjusted to exactly the proper amount which is fitting. 

The Attorney General does not, of course, pass upon the facts. Never- 
theless, I feel bound to call to your attention the findings made on page 3 
of the report from which the appeal is taken, which appear to be in an 
important particular mathematically incorrect. Under the old system the 
appellant worked 44 hours a week as compared with 383^ hours under the 
new system; so that the commissioners have stated that she formerly 
worked 14.28 per cent more hours than at present. In the next paragraph 
the commissioners state: "Since she now works 14.29 per cent fewer hours 
we subtracted 14.29 per cent from the amount of pay she received last year, 
arriving at the answer $1,672.28." Five and one-half hours, which is the 
difference between 44 hours and 383^ hours, is, indeed, 14.28 per cent of 
383^ hours, but the true basis of computation should be the number of 
hours which she formerly worked, namely, 44, of which 5J4 hours is but 
123^ per cent. The correction of this error would appear to entitle her to 
something like $34.89 more compensation than has been designated for 
her. Such mathematical computations, however, are peculiarly subjects 
for your board to pass upon. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Insurance — Endowment Policy — Insured — Beneficiary . 

Under G. L., c. 175, § 24, a child upon whose life a policy of insurance 
is written at the application and for the benefit of the father is the 
"insured." 

Oct. 7, 1931. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — ^ You have in a recent written communication set forth 
the following facts relative to certain proposed provisions of an endow- 
ment insurance policy of which your approval is required : — 

"A certain life insurance company authorized to transact business in 
this Commonwealth has filed a form of endowment policy under said 
section 132. 

It is proposed that this form of policy will be issued on the life of a 
minor child. The father of the child is to be named as beneficiary in the 
policy, the proceeds thereof being payable to the father upon the death 
of the minor prior to the expiration of the endowment period. The appli- 
cation for the policy is signed by the father, who is the contracting party 
with the company. 

The form of policy contains the following provisions : — 

'The . . . Company, hereby agrees to waive all subsequent premiums 
on the policy, continuing the insurance under the policy in full force and 
effect, the same as if premiums were being duly paid, if . . . (the father), 
hereinafter referred to as the original beneficiary, becomes totally dis- 
abled as hereinafter defined, or in the event of the death of the original 
beneficiary, provided such disability occurs prior to the anniversary of 
the said policy nearest to the 60th birthday of the original beneficiary.' 

The proceeds of the policy, that is, the face of the policy, are not pay- 
able to the child upon the death of the father." 



P.D. 12. 125 

Thereafter you state : — 

"The foregoing facts raise the following question of law upon which 
I respectfully request your opinion : Is the applicant for the policy or the 
beneficiary an 'insured/ within the meaning of said section 24? 

I may respectfully direct your attention to an opinion of the Attorney 
General dated July 26, 1928, which deals with a somewhat similar ques- 
tion in connection with section 123 of said chapter 175." 

The principle of law which governs the interpretation of the word "in- 
sured" in the policy provisions which you have quoted in your communi- 
cation is set forth in the opinion of one of my predecessors in office, to 
which you refer in your communication and with which I agree. VIII Op. 
Atty. Gen. 482. 

The first paragraph of G. L., c. 175, § 24, as amended, in which occurs 
the word "insured," as to the meaning of which you inquire, reads: — 

"Any life company, whether or not it is authorized to transact accident 
and health insurance under clause sixth of section forty-seven, may pro- 
vide in its policies of life, group life or endowment insurance, issued in 
compliance with this chapter, for the payment of an accidental death 
benefit consisting of a larger amount if death is caused by accident than 
if it results from other causes, and may incorporate therein or in its annuity 
or pure endowment contracts, issued in like cotnpliance, provisions for 
the waiver of premiums or for the granting of special benefits in the 
event that the insured, or either of them, or the holder, as the case may 
be, becomes totally and permanently disabled from any cause. Such pro- 
visions shall state the special benefits to be granted thereunder, the cost 
thereof to the insured or to the holder and shall define what shall con- 
stitute total and permanent disability. The consideration for any bene- 
fits granted under this section shall be stated separately in the policy or 
contract." 

The child mentioned in the instant policy, upon the hazard of whose 
life the policy is primarily written, is the "insured" referred to in said 
section 24. The child's father is a beneficiary and a contracting party, 
but since his life is not the principal subject of the policy he is not an 
"insured," as that word is used in said section 24. 

The word "insured," as used in section 123, as amended, of said G. L., 
c. 175, was defined in VIII Op. Atty. Gen. 482, 483, as follows: — 

"I am of the opinion that the word 'insured,' as used in G. L., c. 175, 
§ 123, as amended, refers only to the individual to whom a pohc}^ is issued 
insuring his life, and has no reference to the beneficiary of such policy, 
even though such policy contains contractual provisions, as in the instant 
matter to which you have called my attention, which may be said to con- 
stitute a contract of insurance with the beneficiary, within the meaning 
of G. L., c. 175, § 2. Such contract of insurance with the beneficiary is 
subsidiary to the principal contract of life insurance made between the 
company and the person on whose life the policy is written. Although 
the word 'insured' has had more than one meaning attached to it in the 
opinions of courts, under various circumstances, I am unaware of any 
instance in this Commonwealth in which the word, as used in a policy of 
life insurance, has been interpreted by the Supreme Judicial Court as 
meaning any one other than the person upon whose life a policy has been 
written, irrespective of who might be the applicant and beneficiary of 



126 P.D. 12. 

such policy. The word as commonly used in connection with life insur- 
ance refers to an individual whose life is the principal subject of a policy." 

Irrespective of any provisions of said section 123, other than those 
noted in the above quotation, which might tend to enforce the definition 
of the word "insured," as therein used, so as to exclude the father of a 
minor child, in like circumstances with the father referred to in your 
communication, from inclusion in the definition, the general principles 
set forth in the foregoing portion of the said opinion are applicable to the 
definition of the word "insured" as used in said section 24; and there 
being no terms of said section 24 which indicate an intent upon the part 
of the Legislature to use the word "insured" in any other than its com- 
mon meaning in connection with life insurance, described in the above- 
quoted portion of the said opinion, I answer your question in the negative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Trust Company — Small Loans — Supervision. 

A trust company engaging in the business of making "small loans," so 
called, is not required to obtain a license under G. L., c. 140, § 96, 
for the transaction of such business. 

Oct. 8, 1931. 

Hon. Arthur Guy, Commissioner of Banks. 

Dear Sir : — You have asked my opinion upon the following question 
of law : — 

"Is a trust company operating under chapter 172 and making loans of 
three hundred dollars or less, on which the interest and expenses exceed 
twelve per cent per annum, required by the provisions of chapter 140 to 
obtain a license from the Commissioner of Banks to make such loans?" 

As you have set forth in your communication, trust companies are 
authorized, under G. L., c. 172, § 33, to act as follows with regard to loans, 
namely: "... subject to the limitations of the following section, [to] 
advance money or credits, whether capital or general deposits, on real 
estate situated in the commonwealth and on personal security on terms 
to be agreed upon ..." (The following section above referred to, sec- 
tion 34, contains no limitation which affects your question.) 

With regard to a license for the making of small loans (and by the 
words "small loans," as used herein, I refer to loans of the character 
described in your question as above set forth), the provisions of G. L., 
c. 140, § 96, are as follows: — 

"No person shall directly or indirectly engage in the business of mak- 
ing loans of three hundred dollars or less if the amount to be paid on any 
such loan for interest and expenses exceeds in the aggregate an amount 
equivalent to twelve per cent per annum upon the sum loaned without 
first obtaining from the commissioner of banks a license to carry on the 
said business in the town where the business is to be transacted." 

I am of the opinion, however, that although the provisions of said sec- 
tion 96 apply in terms to all persons, nevertheless the Legislature did not 
intend to require a trust company to obtain the license mentioned therein 
as a prerequisite to making a loan of the character mentioned in said 



P.D. 12. 127 

section 96 or in your question. The reason for this conclusion is found 
in the history of the statutory enactments relating to small loans. 

St. 1908, c. 605, entitled "An Act to regulate further the business of 
making small loans," which repealed all earlier acts and parts of acts 
inconsistent therewith, specifically exempted, in section 6, from the neces- 
sity of first obtaining a license before carrying on the business of making 
small loans "national banks, all banking institutions which are under the 
supervision of the bank commissioner, and loan companies and loan asso- 
ciations established by special charter." Undoubtedly a trust company, 
as we now know it, fell within the description of banking institutions thus 
excepted. 

St. 1911, c. 727, repealed St. 1908, c. 605, and, among other things, 
established a supervisor of loan agencies, whom it authorized, in section 
20, to — 

"exercise all the powers in respect to the licensing and control of persons 
engaged in the business to which this act applies now conferred by statute 
upon the bank commissioner, the police commissioner of the city of Bos- 
ton, the mayor and aldermen or corresponding body in other cities, and 
the selectmen in towns." 

I find no statutory authority which was vested in the Bank Commis- 
sioner, at the time of the passage in 1911 of said chapter 727, with respect 
to the licensing of persons engaged in the business of making small loans. 
Moreover, since banking institutions were specifically exempted from 
the provisions of the prior law with relation to the licensing of loan agen- 
cies, by St. 1908, c. 605, there was no authority to license such banking 
institutions then existing in any of the other officers mentioned in said 
section 20 of St. 1911, c. 727. 

By the provisions of Gen. St. 1919, c. 350, pt. Ill, § 45, the offices of 
Bank Commissioner and of Supervisor of Loan Agencies, as they were 
then constituted, were abolished, and their functions, by this section and 
by section 49, devolved upon the Commissioner of Banks. Thus the 
power to issue licenses for the business of making small loans devolved 
directly upon the Commissioner of Banks, who was empowered by 
section 49 to appoint a deputy as Supervisor of Loan Agencies. St. 
1911, c. 727, and other statutes amending it in various particulars are 
now embodied in G. L. (1921), c. 140, § 96, but nothing has been added 
to or subtracted from the provisions of the earher statutes of 1908 and 
1911, to which I have referred, which indicates a legislative intent to alter 
the extent of the application of the provisions of St. 1911, c. 727, which, in 
my opinion, as I above set forth, were not intended to and did not require 
the issuance of a hcense to a trust company, as a banking institution, 
before such institution might engage in the business of making small loans. 

The Commissioner of Banks has, of course, under the terms of existing 
laws, oversight of trust companies, and may resort to the Supreme Judicial 
Court, if any of such companies engage in practices which are illegal, for 
appropriate action against any of those companies which do not carry on 
their business in accordance with law. G. L., c. 167, §§ 1, 6 and 22. This 
power so granted by the Legislature appears to have been intended by 
that body as a safeguard with relation to the business of making small 
loans, sufficient to make unnecessary the granting of particular licenses 
to trust companies for the doing of this kind of business. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



128 P.D. 12. 

County Commissioners — Duty of Approval — Employee. 

County commissioners may not properly approve the appointment of a 
"general secretarial stenographer" by a Probate Court. 

Nov. 2, 1931. 

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

Dear Sir: — On behalf of the County Personnel Board, with which 
you have such a connection as to make your request for an opinion from 
me on their behalf a proper one, you ask my opinion "as to the proper 
interpretation of G. L., c. 215, § 18, particularly as to whether, under said 
section 18, a general secretarial stenographer can be employed payable by 
the county." 

You have also advised me that, in a certain county, under the guise of 
the appointment of a stenographer a person has been appointed who, you 
say, "for the most part handles correspondence and performs clerical 
duties of a general secretarial nature. Occasionally she has taken simple 
testimony in uncontested cases in the Probate Court. Such work in court 
is incidental and does not constitute a major portion of her duties. In 
cases involving any degree of difficulty a regular court stenographer is 
habitually employed." 

As has been pointed out many times in opinions given by Attorneys 
General, it is not the function of the Attorney General to pass upon dis- 
puted questions of fact. 

I assume, for the purposes of this opinion, that the facts as you have set 
them forth are those found to e.xist by the County Personnel Board in 
regard to the particular position of stenographer now under consideration. 

G. L., c. 215, § 18, as amended by St. 1931, c. 301, § 24, reads as follows:— 

"At the trial of any issue of fact in a probate court the presiding judge 
may appoint a stenographer, who shall be sworn and shall attend the trial, 
or such part thereof as the judge may direct, and perform like duties and 
receive the same compensation therefor as a stenographer appointed by the 
superior court who is not on salary; and the sums so payable for his 
attendance at court and for any transcript of his notes or part thereof fur- 
nished to the judge by his direction shall be paid by the county upon the 
certificate of the judge. The judges of probate of any county, except 
Suffolk, may, subject to the approval of the county commissioners of such 
county, appoint a stenographer for the probate court of such county. The 
compensation and expenses of such stenographer shall be paid by the 
county." 

This section in its original form, which did not include the last two 
sentences as now set forth, was originally enacted by Gen. St. 1919, c. 
274, § 13, and was incorporated in the General Laws as section 18 of chap- 
ter 215. Said chapter 274 is entitled "Probate Courts," and a marginal 
note opposite section 18 reads, "Court may appoint stenographer to take 
testimony." The provisions for stenographic service in the Probate Court 
remained in this form until the enactment of St. 1923, c. 392, entitled "An 
Act authorizing judges of probate to appoint permanent court stenog- 
raphers," which struck out said section 18 as it had previously stood in 
G. L., c. 215, and substituted a new section 18, which read as follows: — 

"The judges of probate of any county may, subject to the approval of 
the county commissioners of such county, appoint and fix the compensation 



P.D. 12. 129 

of a stenographer for the probate court of such county. The compensation 
and expenses of such stenographer shall be paid by the county. At the 
trial of any issue of fact in a probate court the presiding judge may appoint 
a stenographer, who shall be sworn and shall attend the trial, or such part 
thereof as the judge may direct, and perform like duties and receive the 
same compensation therefor as a stenographer appointed by the superior 
court who is not on salary; and the sums so payable for his attendance at 
court and for any transcript of his notes or part thereof furnished to the 
judge by his direction shall be paid by the county upon the certificate of 
the judge." 

In enacting section 18 in the above amended form the provisions relative 
to the appointrnent by the judges of probate of any county of a stenographer 
for the Probate Court were first introduced into the statutory law. Against 
this section in the Acts of 1923 appears the marginal note, "Judges of pro- 
bate may appoint court stenographers." 

By St. 1924, c. 194, § 1, the said section 18, as amended by said St. 1923, 
c. 392, was again stricken out and re-enacted in the following form: — 

"At the trial of any issue of fact in a probate court the presiding judge 
may appoint a stenographer, who shall be sworn and shall attend the trial, 
or such part thereof as the judge may direct, and perform like duties and 
receive the same compensation therefor as a stenographer appointed by the 
superior court who is not on salary; and the sums so payable for his at- 
tendance at court and for any transcript of his notes or part thereof fur- 
nished to the judge by his direction shall be paid by the county upon the 
certificate of the judge. The judges of probate of any county, except Suffolk, 
may, subject to the approval of the county commissioners of such county, 
appoint and fix the compensation of a stenographer for the probate court 
of such county. The compensation and expenses of such stenographer shall 
be paid by the county." 

The only changes in the then existing law as made by this last amend- 
ment of 1924 were to place what had been the first two sentences of the 
section at the end thereof, and to except the judges of probate of Suffolk 
County from the provisions of the last two sentences as they now stand. 
Against section 18, as thus amended in 1924, is a marginal note applicable 
to all except the first two sentences, which reads, "Judges of probate may 
appoint court stenographers"; and a marginal note applicable to the last 
two sentences as they now stand, "Permanent stenographers." The last 
amendment of said section by St. 1931, c. 301, § 24, merely struck out the 
words "fix the compensation of," with relation to the stenographer men- 
tioned in the last two sentences of said section 18 as it now stands, and 
made no change in the act material to the matter before me. 

It is apparent from a consideration of these various enactments that it 
was the purpose of the Legislature to provide that when there was a trial 
upon an issue of fact in a Probate Court the presiding judge was to appoint 
a stenographer to perform the usual duties of a stenographer in the particu- 
lar matter then in hearing, and that it was also the intent of the Legisla- 
ture, as expressed in these various enactments, that the judges of probate 
in the various counties, except Suffolk, should appoint a permanent stenog- 
rapher, upon whom they might call for services as a stenographer at any 
time and might appoint as stenographer to take the testimony at any trial 
referred to in the section. It does not appear to have been the intention of 
the Legislature, in enacting what are now the last two sentences of said 



130 P.D. 12. 

section 18, to provide for the appointment by judges of Probate Courts of 
mere secretaries. 

Assuming the facts to be as you have set them forth, the duties of the 
particular position to which you refer in your letter do not appear to be 
those which are commonly performed by stenographers employed by 
courts in this Commonwealth. 

A "stenographer" is defined in Webster's New International dictionary 
as "one who is skilled in stenography; a writer of shorthand." "Stenog- 
raphy" is defined as "the art of writing in shorthand." 

A position, the principal duties of which are not those of writing in short- 
hand, does not seem to me to be that of a "stenographer," as the word is 
used in the instant statute, and, therefore, a position, the duties of which 
comprise only those described in your letter, does not properly exist under 
the instant statute. The character of the service required to be rendered 
by a pubhc servant is the primary test of the nature of the position to which 
such person is appointed rather than the designation of the position. I Op. 
Atty. Gen. 215, 218. 

I therefore answer your question to the effect that the county commis- 
sioners of a county may not properly give their approval to the appoint- 
ment of a "general secretarial stenographer" whose duties and work are 
of the character set forth in your letter. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Agriculture — Apples — Closed Package. 

A container for apples, without a cover but with cardboard partitions 
between layers, may be a "closed package," within the meaning of 
G. L., c. 94, § 1. 

Nov. 12, 1931. 

Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — You have asked my opinion as to whether or not a certain 
type of container for apples falls within the meaning of the words "closed 
package" as defined by G. L., c. 94, § 1. 

The definition framed by the Legislature in said section 1 is as follows: — 

"'Closed package' . . . shall mean a barrel, box or other container, 
the contents whereof cannot be sufficiently inspected without opening it." 

You state in your communication to me that the container as to which 
you inquire has no cover but has cardboard partitions between the layers, 
and after the faced or shown surface is removed it becomes necessary to take 
out the first cardboard partition before the layer of apples directly under- 
neath the cardboard can be sufficiently inspected. In fact, it becomes 
necessary to remove all cardboard partitions before the entire contents of 
the package can be sufficiently inspected. 

Upon the facts as you set them forth, and the Attorney General does not 
himself pass upon questions of fact, the contents of the container of which 
you write "cannot be sufficiently inspected without opening it." 

The verb "to open" is defined in the Century dictionary as follows: — 

"1. To make open; cause to be open; unlock, unfasten or draw apart 
or aside and thus afford access or egress, or a view of the interior parts; 
make accessible or visible by removing or putting or pushing aside what- 
ever blocks the way or the view." 



P.D. 12. 131 

The act of removing successive layers of material to disclose the contents 
of all but the upper layer of apples in a container is as much an "opening" 
of the container as the removal of a single top cover. If the manner in 
which a container is fashioned or equipped is such that without such "open- 
ing" the contents cannot be sufficiently inspected, the container is, in my 
opinion, a "closed package," within the definition given in G. L., c. 94, § 1. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Retirement System — Commissioner of Probation — Age. 

A Commissioner of Probation, appointed under G. L., c. 276, § 98, as 
amended, must retire at the age of seventy. 

Nov. 16, 1931. 

Hon. Charles F, Hurley, Chairman, Board of Retirement. 

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

"Whether or not the incumbent of the office of Commissioner of Pro- 
bation, as estabhshed by G. L., c. 276, § 98, as amended, is subject to com- 
pulsory retirement at the age of seventy, under the State Retirement Act." 

The office of Commissioner of Probation was created by St. 1929, c. 179, 
which amended G. L., c. 276, by striking out sections 98 to 100, inclusive, 
thereof and substituting for them new sections. The new sections relevant 
to the instant matter read as follows : — 

"Section 98. There shall be a board of probation of five persons, 
appointed by the chief justice of the superior court, one or more of whom 
may be justices of the courts. Said chief justice shall annually appoint one 
member of the board to serve for five years from the second Wednesday in 
July. A vacancy in the board shall be filled in the same manner for the 
unexpired term. Any member of the board may be removed by the chief 
justice. The board shall appoint a commissioner of probation as its executive 
officer, who shall hold office during its pleasure. He shall perform such duties 
as may be required of him by the board and shall receive such salary as it shall, 
subject to the approval of the governor a7id council, determine. The board shall 
be provided with suitable office accommodations, in the Suffolk county 
court house or elsewhere, and may employ such assistance as is needed to 
perform its work. The members of the board shall receive no compensation 
for services hereunder, but they and the commissioner shall be allowed the 
necessary expenses incurred in the performance of their official duties. 
The board may expend for the purposes for which it is established such 
sums as the general court may appropriate. 

Section 99. The board of probation shall prescribe the form of all 
records and of all reports from probation officers, and shall make rules for 
the registration of reports and for the exchange of information between the 
courts. It shall provide for such organization and co-operation of the 
probation officers in the several courts as may seem advisable. To promote 
co-ordination in the probation work of the courts, the board may call a 
conference of any or all of the justices of the district courts and the Boston 
juvenile court, or a conference of any or all of the probation officers and 
assistant probation officers, and a member of the board shall preside. With 
the approval of the board, the commissioner of correction or the depart- 
ment of public welfare may hold a conference with any or all of the pro- 



132 P.D. 12. 

bation officers to secure their co-operation in keeping trace of the where- 
abouts of persons who are at liberty from the prisons of the commonwealth. 
The traveling expenses of said justices or officers in attending any con- 
ference herein named shall be paid as the other expenses of the respective 
courts are paid." 

The nature of the State Retirement Association and its membership 
is set forth in G. L., c. 32, § 2, in the following provisions: — 

"There shall be a retirement association for the employees of the com- 
monwealth, including employees in the service of the metropolitan district 
commission, organized as follows: ..." 

The word "employees," as.used in said section 2, is defined in section 1 
of said chapter 32, as amended by St. 1922, c. 341, § 1, as follows: — 

" 'Employees', persons permanently and regularly employed in the 
direct service of the commonwealth or in the service of the metropolitan 
district commission, whose sole or principal employment is in such service." 

Certain of such "employees," that is, "persons permanently and regu- 
larly employed in the direct service of the commonwealth," are, however, 
excepted from the provisions of compulsory membership in the association 
by the statute itself, namely, officers "elected by popular vote" and "any 
employee who is or will be entitled to a non-contributory pension from 
the Commonwealth." G. L., c. 32, § 2 (3), as amended. Judicial officers, 
as those words are used in the Constitution, whether or not they receive 
a non-contributory pension, are also to be excepted, by reason of the con- 
stitutional provisions (Mass. Const., pt. II, c. Ill, art. I, as amended by 
art. LVIII) relative to their tenure of office, which would be infringed by 
the provisions of G. L., c. 32, as amended, with relation to compulsory 
retirement, if the terms of said chapter 32 were to be interpreted as appli- 
cable to such officers. Public officers or other employees whose appoint- 
ments are for short and definite terms are not so "permanently and 
regularly" employed as to fall within the statutory definition of "em- 
ployees," and so are not held to be members of the association. V Op. 
Atty. Gen. 547; VIII Op. Atty. Gen. 20; 304. 

The Commissioner of Probation does not fall within any of the ex- 
ceptions above noted; he is not an officer "elected by popular vote"; 
he is not an employee entitled to a non-contributory pension; nor is he 
appointed for a short and definite term, but upon such tenure that, in 
my opinion, he is "permanently and regularly" employed in the service 
of the Commonwealth. He is not, moreover, in my opinion, a judicial 
officer within the meaning of Mass. Const., pt. II, c. Ill, art. I, as 
amended, for it is apparent that in creating the office of Commissioner of 
Probation it was not the intent of the Legislature to provide for the 
appointment of a judicial officer, within the class of "judicial officers" 
referred to in Mass. Const., pt. II, c. Ill, art. I. This is apparent from 
the Legislature's having required by G. L., c. 276, § 98, as amended, that 
the Commissioner shall hold his office at the pleasure of the Board of Pro- 
bation, a requirement which is incompatible with the tenure of a "judicial 
officer" within the meaning of the constitutional provisions above noted. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 133 



INDEX TO OPINIONS 



Page 

Apiaries, Inspector of; right of forcible entry to a place where bees are kept; 

records 102 

Auditor of the Commonwealth; duties 94 

Employees; appointment; civil service 56 

QuaUfications; duties 57 

Boiler inspection; revocation of certificate ; false statement in application . 35 
Boston Traffic Commission; Metropolitan District Commission; traffic 

control 74 

Civil service; employees in the Department of the Auditor of the Common- 
wealth 56 

Labor service; preference in employment over veterans .... 80 
Persons receiving support from municipahties and employed by such 

municipalities without pay 68 

Clerks of court; annual returns relative to persons naturahzed ... 59 

"Closed package"; interpretation 130 

Constitutional law; Auditor of the Commonwealth; duties .... 94 

Classification of persons entitled to permits for blasting 66 

Contract between two municipalities for use of water 84 

Contract for delivery of power by Harvard College to the Commonwealth 

construed 81 

County commissioners; approval of appointment of a "general secretarial 

stenographer" by a Probate Court 128 

County employees; basis of compensation; classification 120 

Education, Department of; transportation of school children ... 30, 35 

Explosives; duty of State Fire Marshal to make rules and regulations . . 69 

Federal Prohibition Act; State police officers; arrest without a warrant . 36 

Fireman's special license; revocation by the Registrar of Motor Vehicles . 109 
Forest land; reimbursement to municipahties for loss of taxes . . . .71 

Foxhounds; training; hunting 73 

Icecream; investigation of prices by the Division on the Necessaries of Life . 104 

"Injury"; interpretation 47 

Insurance; endowment policy; "insured"; beneficiary 124 

Liability insurance company; defense of actions 61 

Statutory motor vehicle liability; demerit system ; deductible term . . 112 

License, sporting or trapping; conviction; revocation 50 

Massachusetts Industrial Commission; expenses; advertising .... 34 
Medical examiner; removal of a dead body without a permit from the local 

board of health 81 

Mental Diseases, Department of ; purchase of land; options .... 64 
Metropohtan District Commission; Boston Traffic Commission; traffic 

control 74 

Milk; pasteurization; grades 77 

Motor Vehicles, Registrar of; revocation of fireman's special hcense . . 109 
Necessaries of Life, Division on the; investigation of prices charged for ice 

cream 104 

Pharmacy, Board of Registration in; registration of portion of department 

store for transaction of retail drug business 72 

Probation, Commissioner of; compulsory retirement at age seventy . . 131 

Probation officers ; compensation; deficit in appropriation; county accounts 105 

Public health; milk; pasteurization; grades 77 



134 P.D. 12. 

Page 

Public officers; executive appointments; statutory limitations; tenure of 

office 62 

Public Safety, Commissioner of; State Fire Marshal; explosives; rules . 69 
Use of State police as guards at the State Prison Colony .... 49 
Retirement; Commissioner of Probation; compulsory retirement at age 

seventy 131 

Election of employee to take workmen's compensation; refund of payments 107 

Elective officers of Worcester County 58, 114 

Prison employees; "injury" 47 

Service prior to eligibility to membership in the Retirement Association; 

" active service " ; continuity of service 52 

Total period of employment by a city and by the Commonwealth; veteran 97 
School children ; transportation . . . . . . . . 30, 35 

Veteran's child; reimbursement for expenses incurred for education . . 30 
Settlement, acquisition of, by a patient in a city hospital . . . .100 

Small loans; trust company; license 126 

South Metropolitan Sewerage District; acceptance by the town of Weymouth 

of statute providing for admission to district 98 

State police officers; arrest without a warrant; Federal Prohibition Act . 36 
Use as guards at the State Prison Colony . . ... . .49 

State Prison Colony; authority of superintendent to search visitors . . 118 
Taxation; reimbursement to municipalities for loss of taxes on forest land . 71 

Tenure of office of public officers 62 

Trackless trolley cars; operators; registration; Ucense 32 

Volunteer Mihtia; death of member; compensation to parents . . .117 
Women, employment of, in the manufacture of textile goods .... 53 
Worcester County, elective officers of; retirement 58, 114 



P.D. 12. 135 



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 deUvery up and return of any offender 
who has fied 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. 

Jd) 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 appUed 
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. 

(i) If the offence charged is not of recent occurrence, a satisfactory reason 
must be given for the delay in making the application. 

1. In all cases of fraud, false pretences, embezzlement or forgery, when made 
a crime by the common law, or any penal code or statute, the affidavit of the 
principal complaining witness or informant that the application is made in good 
faith, for the sole purpose of punishing the accused, and that he does not desire 
or expect to use the prosecution for the purpose of collecting a debt, or for any 
private purpose, and will not directly or indirectly use the same for any of said 
purposes, shall be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying the Executive that 
the alleged criminal has fled from the justice of the State, and is in the State on 
whose Executive the demand is requested to be made, must be 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 duphcate, 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 
pubHc is not a magistrate withm the meaning of the statutes.) It must also be 
shown that a complaint has been made, copies of which must accompany the 



136 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 application. 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 application may be made by 
the jailer, sheriff, or other officer having him in custody, and shall be accom- 
panied by certified copies of the indictment or information, record of conviction 
and sentence upon which the person is held, with the affidavit of such person 
having him in custody, showing such escape, with the circumstances attending 
the same. 

8. No requisition will be made for the extradition of any fugitive except in 
compliance with these rules. 

750. 4-'32. Order 4285.