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

Public Document 



No. 12 



Ct)e Commontoealtf) of 6|^a00act)U0ett0 



REPORT 



ATTORNEY GENERAL 



Year ENDING November 30, 1932 



^ 




Public Document 



No. 12 



C|)e Commontueaitt) of ^a00act)U0etti8f 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1932 




"U^.KjeM^u P,Q,Qiy^ru. 



KjsM/^ 



€:'bt Commontoealtf) of ^a00acf)U0ett0 



Department of the Attorney General, 
Boston, January 18, 1933. 

To the Honorable Senate and House of Representatives. 

I have the honor to transmit herewith the report of the Department for the 
year ending November 30, 1932. 

Very respectfully, 

JOSEPH E. WARNER, 

AttoTJiey General. 



Ci)e Commonloealtl) of ^a$i8iac|)U!8iett!Bi 



DEPARTMENT OF THE ATTORNEY GENERAL, 
State House. 



Attorney General. 
JOSEPH E. WARNER. 



Assistants. 
Roger Clapp. 
Charles F. Lovejoy. 
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 March 31, 1932. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 

For the Fiscal Year. 

General appropriation for 1932 $99,000 00 

Appropriation for small claims 4,000 00 

Appropriation under St. 1931, c. 458 5,000 00 

Supplemental appropriation 4,000 00 

Balances brought forward 10,946 04 



[22,946 04 



Expenditures. 

For salary of Attorney General $8,000 00 

For law library 430 25 

For salaries of assistants 42,333 33 

For salaries of all other emploj^ees 20,805 50 

For legal and special services 22,166 33 

For office expenses and travel 3,052 69 

For court expenses 1,526 77 

For small claims 3,966 80 

For damages by state-owned cars 3,735 50 

Total expenditures . $106,017 17 



Clje Commontoealtl) of ^a$0acf)usetti8! 



Department of the Attorney General, 
Boston, January 18, 1933. 

To the Honorable Senate and House oj Representatives. 

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

The cases requiring the attention of this Department during tlie year ending 
November 30, 1932, to the number of 8,780 are tabulated below: 

Corporate franchise tax cases ......... 2,720 

Extradition and interstate rendition ........ 249 

Land Court petitions ........... 107 

Land-damage cases arising from the taking of land : 

Department of Public Works ........ 249 

Department of Mental Diseases ........ 3 

Department of Conservation ......... 3 

Department of Correction ......... 1 

Metropolitan District Commission . . . . . . . .114 

Metropolitan District Water Supply Commission ..... 18 

Miscellaneous cases ........... 668 

Petitions for instructions under inheritance tax laws ..... 48 

Public charitable trusts .......... 300 

Settlement cases for support of persons in State hospitals .... 9 

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 ......... 4,256 

Indictments for murder, capital cases ........ 35 

Disposed of . . . . . . . , . . .20 

Now pending .......... 15 



() P.D. 12. 

THE DEPARTMENT OF THE ATTORNEY GENERAL. 
The Attorney General. 

The Attorney General, elected by the suffrage of the whole Commonwealth for 
the term of two years, is the people's law officer, charged with the administration 
of laws for the prosecution of crime against the Commonwealth and for the pro- 
tection of the people collectively and of the Commonwealth and all its officers and 
departments in civil matters. 

His Jurisdiction: Criminal, CmL. 

The jurisdiction of the Department in this Commonwealth comprises the ad- 
ministration of laws as to certain criminal and all civil legal matters affecting the 
Commonwealth. The former is effected by the Attorney General with his staff or 
with or through the agency of any or all of the eight district attorneys ^ with their 
assistants; the latter solely by the Attorney General and his staff of nine assistants. 

I. Administration of Laws for Prosecution of Crime. 

Mode of its Exercise: By the Office Itself; By Offices of the District 
Attorneys. 

The jurisdiction of the Attorney General in criminal matters is that of criminal 
law administration, — not of criminal law enforcement, which is the function of 
the police. 

The jurisdiction of this administration is confined primarily to prosecutions in 
the Superior Court, and to prosecution of persons indicted by a grand jury for a 
felony, and of persons found guilty of a misdemeanor by a municipal or district 
court, who have appealed to the Superior Court. 

It is exercised by the Attorney General, who — obhged to take cognizance of 
all violations of law,- and having powers in any district possessed by a district 
attorney in his own district — may, in the Superior Court, personally prosecute 
any felony, ' or in any appropriate municipal or district court * such of those mis- 
demeanors, in particular, as offend the administration of a State department ; ^ 

I Northern District, Warren L. Bishop, Wayland. 
Eastern District, Hugh A. Cregg, Methuen. 
Southern District, WiUiam C. Crossley, 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, Boston. 

2 G. L. (Ter. Ed.) c. 12, § 10. 

3 Action was had by the Attorney General in certain stock frauds. In the summer of 1930 certain 
so-called stock frauds were disclosed. Investigation revealed transactions of a radius over the Common- 
wealth too extensive for the attention of any one district attorney. Though the functions of the Attorney 
General are primarily civil administration, criminal jurisdiction was exercised. After intensive inquiry 
and preparation, necessarily requiring time, action followed. Prosecution was had either by the office 
directly (a) or by reference to the appropriate district attorney (6). 

(a) Conviction in Brotherhood Coal Company case; jail sentence and fines. Conviction in New England 
Investment Trust, Inc., case; jail sentences and fines. 

(6) Conviction in Page & Shaw case; District Attorney Bishop. 

« Prosecutions for departments in municipal courts of Boston and Roxbury District, with conviction 
and sentence (3). 

' Indictment for larceny (military aid); indictment for discharging factory waste into Aberjona River; 
company fined $200, individual cases filed. 



P.D. 12. 7 

or, unless a statute requires prosecution solely by his office, he may cause prosecu- 
tion by reference to the district attorney in whose district the felony or misde- 
meanor occurred. ^ District attorneys are elected by the suffrage of their respec- 
tive districts for a term of four years. As their offices have to do principally with 
criminal and not ci\'il matters, and as each is specially equipped for intensive and 
competent attention to such matters (through their creation and provision by the 
General Court for the particular functions of prosecution) and as the office of the 
Attorney General has to do primarily with civil and not criminal matters, and as 
its general engagement in prosecutions, diverse in nature and location, would 
unnecessarily duplicate the work of the district attorne5^s, — prosecution of \'iola- 
tions of law, of which the Attorney General is obliged to take cognizance, is gen- 
erally effected, as provided by law,^ through appropriate district attorneys as part 
of the greater volume of business they originate or conduct independent of the 
Attorney General. 

Conferences of the Attorney General, District Attorneys and Assistants. 
The Attorney General and the district attorneys held four conferences, as usual. 
At the last quarterly meeting the district attorneys presented reports as to the 
administration of criminal law in their respective districts, and proposed recom- 
mendations for legislation. 

Account of Administration of Criminal Law by District Attorneys as to 
Each District.^ 

Mr. Bishop (Middlesex), whose district is considered the largest in population 
plus area, for which reason criminal business is quite constant, reports that all 
felonies and misdemeanors pending November 30, where defendants had been 
apprehended, will be practically cleared by December 31, though current interim 
entries will necessarily show triable cases pending on that date ; that a first degree 
murder conviction was obtained within two months from date of the murder.* 

Mr. Cregg (Essex) reports that he has disposed of 1,730 cases this year — 100 
more than in 1931; that every case listed on each of the dockets for the three sit- 
tings of the court in that district has been and will be disposed of at the respective 
sitting if disposition is possible; that by greater care in preparation and assign- 
ment of time for appearance of witnesses, this number of dispositions has been 

1 Action by the Attorney General for violations of banking laws, on report of the Commissioner of 
Banks, was had by instituting "forthwith" proceedings for prosecution, by reference to District Attor- 
neys Bishop, Cregg, Norman and Foley. 

2 G. L. (Ter. Ed.) c. 12, § 27. 

3 List of capital cases and disposition is appended. 

* Appeal pending. Trial by Assistant District Attorney Frank G. Volpe disclosed a series of unusual 
incidents, wherein circumstances and action of police and prosecutor's office presented the difficulties 
confronting agencies of government and disclosing exercise of talents always expected but infrequently 
lauded: — a bullet, shell from a .32 automatic and a murdered man on the floor of a gasoline station 
April 9 were sole evidences of the deed and the doer; discovery three weeks later by the Boston poUce of 
a .32 automatic; its identification with the shell by the State ballistic expert; arrest of two users of the 
room where found; chance identification in Philadelphia, through magazine picture relating to another 
matter, of a third person, with alias, posing as a seaman, whose whereabouts were unknown, having dis- 
appeared two days after the murder; flight by police by plane and return in a few hours with such person; 
friendly association of the three revealed through work of detectives and prosecutor; locating, twenty- 
one days later, one of the first two in California, where he had gone meantime after disappearance con- 
sequent to release from House of Correction on charge other than of murder, of which he was not then 
suspect; piecing together the incidents; ten-day trial; verdict, after dehberation of fifty-five minutes, 
of murder in first degree of the two of the three who had disappeared. 



8 P.D. 12. 

effected at a saving in expense of $20,000 during his tenure; that following the 
burning of property to defraud an insurance company, indictment, ten-day trial, 
conviction and sentence to State Prison for five to eight years was had, — all 
within fifty-two days of the day of the burning; that in another case of like nature, 
where the act was committed two months before a criminal sitting, the defendant 
at such sitting was indicted, tried, convicted and began ser\'ing sentence in twenty- 
nine days; and that an attacker of young high school girls was arrested, arraigned, 
tried and convicted, all by the twelfth day after the attack. 

Mr. Crossley (Nantucket, Dukes, Barnstable and Bristol) reports, as to Nan- 
tucket, 5 cases pending; as to Dukes, 7; as to Barnstable, 14, with 2 murder cases 
disposed of, one of first degree and the other of manslaughter; as to Bristol, 282, 
plus 4 capital cases (1 already tried, with conviction in first degree but appealed, 
and 3 just indicted); and final disposition, requiring special session, of 3 murder 
cases, involving 6 defendants (resulting in life imprisonment of 4, acquittal of 1, 
and State Prison for the other) ; that 3 bank robbers began State Prison sentences 
after arrest, indictment, trial and conviction, in less than a month and a half from 
day of robbery. ^ 

Mr. Wilbar (Norfolk and Plymouth) reports as to Norfolk that at the time of 
the last criminal sitting in October there were less than 50 cases pending and 1 
murder case, with prospect of the lightest grand jury list at the convening Decem- 
ber 5; as to Plymouth, no murder cases and about 50 cases pending at the close 
of the sitting in November, which include a number ^ where, after convictions 
already had, sentence is contingent upon certain matters, and that the docket is 
so cleared that, with a few felonies awaiting trial, the misdemeanors ma}^ be dis- 
posed of with expedition. 

Mr. Norman (Worcester) reports a decrease last year in cases pending as of 
September 30, ^ but likelihood of increase over last year of cases as of December 31 ; 
a larger number of burning cases than usual; increase in number of grand jury 
hearings; that as recently as December 31 four out-of-state savings bank robbers 
were sentenced to State Prison on the twenty-third day after breaking into a bank, 
binding the watchman and with loaded revolvers forcing the treasurer to open the 
vault.'' 

Mr. Moriarty (Hampden and Berkshire) reports that there are but 148 misde- 
meanors, 14 indictments for felonies and 1 murder case pending in Hampden, 
some of which have accrued since the last court sitting in October; 40 misdemeanors 
and 7 felonies in Berkshire, some likewise accruing since the last court sitting in 
July. This indicates that all current cases have been tried as they arose and 
readiness to try without postponement any and all cases as they may arise. In 
Berkshire, in February, a first degree murder, which had been pending three years 

1 Robbery, October 17; arrested, November 8; indicted in November; trial, five days; praise is due 
to the police of Taunton, where the robbery occurred, to the police of Stoughton, where the robbers were 
caught, and to the State Police. 

- Eleven cases. 

' Statistical year of reports from the clerks of the Superior Court ends September 30. The new unit 
basis is the defendant rather than the case, for such appears to be a better basis for indexing crime. Al- 
though several defendants may often be included in one case, a nimiber of cases may only relate to one 
defendant. 

* Prompt action by a member of the State police brought about capture after flight to Connecticut 
and shift at State line to Connecticut car. Robbery, November 29; indictment, December 14; sentence, 
December 21. 



P.D. 12. 9 

because of the concealment of the defendant, was disposed of, immediatel}' on his 
apprehension, on plea of guilt to second degree murder. In the space of the same 
thirty days gang safe crackers were indicted, tried, convicted and sentenced, and 
armed robbers began serving time in State Prison after indictments, trials and 
convictions. 

Mr. Bartlett (Hampshire and Franklin) reports, as to Franklin County, that 
though 18 misdemeanors and only 3 felonies, and as to Hampshire, 35 misdemeanors 
and 7 felonies, are listed as pending, ^ they include those tried and awaiting sen- 
tences, - or tried and appealed to the Supreme Judicial Court, ^ and those early 
terminable by matters already effected, and those* from district courts entered 
since the last criminal sitting. ^ 

Mr. Foley (Suffolk, with a population of 879,536) reports that for the first time 
in many years no murder case is pending; that, aside from a number in one group, 
fewer cases are pending than in any previous year; that the crime of arson ap- 
pears to have been more prevalent but convictions were obtained in nearly all 
cases ; that, in a kidnapping case,® by immediate action a racket was stopped at its 
inception. 

Recommendations of the District Attorneys and Attorney General. 

1. That surety companies, acting as bail bondsmen, shall be no longer exempt from 
the statute requiring registration of professional bondsmen, and providing for revo- 
cation of license on failure to satisfy judgments recovered, and for conformity to rules 
established by the Superior Court. '' 

If a professional bondsman fails for thirty days to satisfy in full a judgment 
recovered on a bond, his registration may be revoked by a justice of the Superior 
Court. Surety companies are not now regulated as professional bondsmen, and 
are not subject to control by the Superior Court. Some surety companies have 
failed to satisf}'' judgments, yet are not prohibited from continuing to act as 
bondsmen, and, in some instances, professional bondsmen, whose registration has 
been revoked, act as their agents. 

2. That certified copies of criminal records shall be furnished to district attorneys, 
police officers or their agents, without charge.^ 

By present practice the Commonwealth collects for and then charges these 
costs to itself through the different offices. 

1 Dec. 31, 1932. 

* Two hundred and fourteen. 
' Three. 

* Thirteen. 

5 Two grand jury investigations related to conduct of officials of a certain town and of an official of 
the Interstate Mortgage Trust Company, a Kansas corporation doing business in Massachusetts, with 
Subsequent trials and convictions (appeal pending). 

8 In exactly forty-nine days from the time of kidnapping, defendants were in State Prison, due to 
creditable work of the police of Boston and of Hull and of the District Attorney and his office. 

On the evening of October 11, Herman Rutstein was kidnapped in the rear of his home in Dorchester; 
October 16, place of concealment in Nantasket located; special session of Grand Jury immediately called; 
November 24, kidnappers indicted, charged with kidnapping and robbery; November 28, trial begun. 
Assistant District Attorney Frederick T. Doyle prosecuting; November 29, defendants pleaded guilty 
and sentenced to twenty to thirty years in State Prison. 

' Presented by District Attorney Foley. Effected by striking out, in G. L. (Ter. Ed.) c. 276, § 61B, 
hne 28, the words "surety companies or to." 

8 Presented by District Attorney Bishop. Add at the end of G. L. (Ter. Ed.) c. 262, § 5. 



10 P.D. 12. 

3. That defendants shall signify election of trial without jury ivithin ten days after 
they are called upon to plead upon an indictment or complaint. ^ 

This measure will result in great saving, by not requiring the maintenance of 
the jury panel, in the event a defendant should make up his mind to ask for a 
jury waived trial. If the defendant is to make the decision, it would appear that 
he may do so at one time as well as at another, and that a period of ten days after 
pleading to indictment or complaint would afford reasonable opportunity. 

4. That the credibility of the witness may be impeached by introducing in evidence 
his record relating to a crime where there had been a verdict of guilt or a plea of guilty 
and a suspended sentence or term of probation imposed. - 

If, to discredit a witness in a criminal case, it is proper, as now, to show his 
previous conviction of crime where sentence has been imposed, with fine or impris- 
orunent, it ought to be no less proper to show conviction with suspended sentence 
or probation. If previous conviction of crime is deemed of importance in consid- 
ering reliance on testimony, it is refinement to say that the word of a person who 
has been convicted of crime is acceptable if, after his conviction, — often on his 
own plea of guilt, — his sentence was suspended or he was placed on probation, 
while the word of another person is not if he was imprisoned or fined. It is difficult 
to see why a witness, previously convicted, should be discredited by his record 
if sentence had been imposed, and another witness should not be if sentence had 
not been imposed. 

5. That in trials of two defendants, where one has been indicted as principal and 
the other has been indicted as an accessory in separate indictments relating to a single 
chain of circumstances, one defendant may not elect to waive and the other elect not to 
waive jury trials, thus necessitating two separate trials, one with a jury and the other 
by the court, but that both defendants must elect so to waive before any hearing may be 
held by the court without jury, as is now the case when the two defendants are named 
as principal and accessory, respectively, in a single indictment.^ 

The statute enables waiver of jury trial by a defendant but not unless all defend- 
ants, if more are named in the same indictment, have waived. But in the event 
defendants are named in separate indictments for different charges relating to the 
same common act, separate trials ensue, and each has the privilege of waiving and 
being tried by the court and not by a jury. There appears to be no particular 



1 Presented by District Attorney Bishop. Amend G. L. (Ter. Ed.) c. 263, § 6, as amended by St. 1929, 
c. 185, § 1, by striking out the words "when called upon to plead, or later and before a jury has been im- 
panelled to try him upon such indictment or complaint," and substituting therefor: — within ten days 
after he is called upon to plead upon such indictment or complaint. 

2 Presented by District Attorney Bartlett. Amend G. L. (Ter. Ed.) c. 233, § 21, by inserting after 
the word "crime", in the first line, the words: — or the record showing that he was found guilty or pleaded 
guilty to the commission of a crime and as a result thereof a suspended sentence or a term of probation 
was imposed, — and by inserting after the word " imposed ", in the fifth line, the words : — and the record 
showing that he was found guilty or pleaded guilty to a complaint or indictment alleging that he committed 
a misdemeanor and upon which he was given a suspended sentence or placed on probation, shall not be 
shown for such purpose after five years from the date the suspended sentence was imposed or probation 
ordered, — and by inserting after the word "imposed", in the tenth line, the words: — and the record 
showing that he was found guilty or pleaded guilty to a complaint or indictment alleging that he com- 
mitted a felony, and upon which he was given a suspended sentence or placed on probation shall not be 
shown for such purpose after ten years from the date on which the suspended sentence was imposed or 
probation ordered. 

3 Presented by District Attorney Foley. Amend G. L. (Ter. Ed.) c. 263, § 6, by striking out the comma 
and inserting after the word "more", in the thirteenth hne, the words: — named in that indictment, 
or all defendants in all other indictments arising out of the same single chain of circumstances. 



P.D. 12. 11 

reason that defendants should enjoy greater privilege from the circumstance of 
being named in separate indictments than when named together. Moreover, this 
privilege enables the spectacle of a principal testifying, in his trial, to the guilt of 
the accessory and to his own innocence, and, in the trial of the accessory, testifying 
to the accessory's innocence, resulting in the acquittal of both. 

Remarks on Current Comment on Crime. 

It is lamented that crime is not being reduced to a minimum. 

If solely an expression of regret that crime is not less, it is a lament which has 
often been repeated since sin began. Lips and ears until sin ceases will utter and 
hear the same. 

If intended as an expression that crime is not being reduced by agencies capable 
of reducing it, the generality of the lament, without specification, wails woe to no 
purpose. Not woes but ways to prevent merit attention. 

The lament acknowledges some minimum below which crime may not be 
reduced. If so, no human agency may eradicate it. How is a minimum to be 
rated and determined? What acts are included in the word "crime"? Is vice — 
gambhng, for instance? What is the particular form of crime, not now being 
reduced, which can be reduced? What is taken as data for index and estimate of 
amount of crime which may be reducible? What are the modes of control, not 
now being exerted or not now being effectively exerted, which can be exerted to 
reduce it? What particular item or items, in the various factors that relate to 
crime, are not now provided for or wisely provided for, which will, if so provided 
for, effect the reduction to a minimum? Is it in Massachusetts, in some other 
State, or in the nation generally that there is reducible crime? 

In the first place, there is no definite present means of obtaining accurate infor- 
mation as to the existence, prevalence and nature of acts, which, ha\'ing been 
designated by statute as felonies and misdemeanors, are crimes. Without trial 
and conviction, either in the district court or the Superior Court, an act cannot 
even be said to be in fact criminal, much less its nature particularized. Even 
accumulation of statistics, ^ from every one of the police departments of the thirty- 
five cities and three hundred and sixteen towns, of cases reported to them but 
where circumstances disenabled prosecution, would not furnish an accurate index 
— for the reason that such cases were not judicially determined. Of the number 
judicially determined in the district, municipal and Superior Courts, to count 
convictions only as crimes is to discount discharges as not instances of predisposi- 
tion to crime and to characterize the proceedings as having been instituted upon 
mere supposition. Even an increase in convictions may be as consequent to addi- 
tional, more successful or intensive measures therefor as to increased prevalence 
of crime. Citation of imprisonments is no more than registry of that type of pun- 
ishment. The minimum voiced in the lament is unascertainable. 

There are many factors involved in the subject of crime: legislation — ■ by which 
alone acts are or are not criminal; criminal disposition — born, bred, acquired or 
incited; detection of crime; apprehension of the criminal; prosecution; correc- 
tion; crime prevention. 

Legislation makes acts crimes by setting up penalties for doing them. The 
great complexity of the present day — multiplying the relations of man with man 

1 Statistics as to crimes known to the police are not compiled in Massachusetts, 



12 P.D. 12. 

and employing devices and novel schemes — occasions the need for restraining 
measures. As the category of interdependence of social life increases, necessarily 
there is increase in the list of acts legislatively defined as criminal. A new statute 
or a change in an existing statute may greatly enlarge the number of crimes by 
reciting acts, thereafter committed, theretofore law^ful. It is not and never has 
been, as has been assumed by some, the purpose of criminal law legislation to 
make persons moral and to prevent all crime, but to provide a penalty, to remedy 
TVTongs and to prevent excess crime. If all persons practiced the moralities and 
social justice, there would be no need of legislation. 

Detection necessitates the securing of evidence of identification and commission 
of the crime; it involves adequacy of means and equipment to detect crimes if 
unknown, and, if known, to prevent escape and to secure arrest. This is the task 
of the police, as enabled by provisions of statutes, ordinances and by-laws. 

Prosecution requires presentation of evidence for complaint or for grand jury 
indictment and trial, in the procedure prescribed by the Legislature; and convic- 
tion is dependent, among other things, upon appearance and responsiveness of 
witnesses and standards of conduct in the community of prosecution, as reflected 
by judges and jurymen. The prosecution of misdemeanors is the task of the local 
police in the municipal and district courts, and the prosecution of felonies and 
misdemeanors appealed to the Superior Court is the task of the eight district 
attorneys and the duty of the Attorney General in certain cases. This factor in- 
volves personnel. But until there has been detection and apprehension there can 
be no prosecution. 

Correction is enforcement of disciplinary measures, designed to restrain and 
correct perverted conduct of the convicted, and, through exemplification of the 
enforcement, to prevent or deter manifestation by others. This is the task of the 
Legislature in providing the form of discipline, of the judiciary in pronouncing it, 
and of the probation and penal officers in administering it. It necessitates the 
enactment of measures best calculated to reform ^ or cure convicted persons and to 
repress disposition to and engagement in criminal conduct. 

Prevention of crime involves not only these factors but everything that relates 
to the formation of and temptation to criminal conduct. Home; school; church; 
social agencies; wholesome amusement; clinics for detecting social delinquencies 
and for rehabilitation; informal agencies for arbitration, outside of law, where loss 
of favorable opinion of social, fraternal, group or business associates is the penalty; 
devices for protection of life and property against temptation to or enablement of 
crime; measures for protection of neglected children and of juveniles before the 
courts, — all have to do with crime. 

To lament that crime is not being reduced to a minimum is a lament that cata- 
logues, even as sparsely sketched, items, personnels and conditions so innumerable 
that it voices the inclusive responsibihty of every member of society to allay it. 

1 If imprisonment, by the fixation of a period of years, has, as part of its purpose, the reformation of a 
criminal, I am unable to understand upon what basis various terms of years have been prescribed in the 
statutes for various crimes as calculable and effectual measures to accomplish the correction of persons 
committing the different crimes; nor to understand how it can be determined in advance, for the impos- 
ing of imprisonment for any years so fixed, that reformation of the convicted person will be or will have 
been effected upon the day terminating the period. In so far as reformation is one of the purposes of 
imprisonment, I cannot reconcile the present mode of fixing legal limitations with its reformative appli- 
cation to any individual; scientific inquiries for determining a reformation, as basis for date of release, 
may, at least, claim consistency, — assuming that by the exploitation of the human mind penitence and 
reform can be discoverable and reliable. 



P.D. 12. 13 

Concluding Observations. 

1. That mercenary crimes which, in their worst forms, are murder for money 
and reign-of-terror rackets, exacting, with tlireat of injury to person and family or 
destruction of property, tribute for immunity from molestation, from milkmen, 
laundrymen, cargo and draymen, businesses, large and small, have not as yet 
gained organized foothold in Massachusetts. 

2. That, as I believe that means of quick get-aways, good chances for escape 
and lack of fear of identification consequent therefrom, detection and arrest have 
as much to do with daring crime as any other factors, stern, resolute and efficient 
measures for detection, apprehension and eradication should be given prime con- 
sideration. 

3. That in the face of this form of brigandage, every agency, and particularly 
the local police, having responsibility in contending with it should be encouraged 
by measures effecting better equipment and system, linking up every municipality 
by radio and teletype paraphernalia, maintenance of necessary personnel, greater 
unity for co-operative efforts of forces, now individualized in thirty-five cities and 
three hundred and sixteen towns, and power of arrest, anywhere in the Common- 
wealth, of bandits fleeing beyond municipal and town boundaries. 

4. That elimination or curtailment of efficient and necessary existing protective 
police agencies, whereon duties other than poUcing have already been imposed, 
cannot but afford the underworld easier opportunity to set up the supergovern- 
ment it has maintained elsewhere. 

5. That inasmuch as certain measures for social rehabilitation — which it is 
contended should be substituted for the present measures of penal and other dis- 
cipline, on the ground that they neither deter second offenders from recommission 
of offences, nor first offenders from commission — can possibly only affect those 
who have been apprehended and convicted, and inasmuch as I think the regenera- 
tive value of tints of orchid, soft mauve and saffron on chamber walls of the hei- 
nous, and of the resocializing value of de luxe conveniences for dainty foot sprays, 
sparing the effort of the vicious from full shower, as palliatives for freedom's for- 
feit, have not yet been practicably demonstrated; and inasmuch as I think no 
thug, killer, gangster or racketeer would be made more hesitant by knowledge of 
selective and sensitized measures for his rehabilitation, if caught — I think the 
first duty is to the tax-paying public for capture of criminals, before proposing or 
extending expensive experimentation for their uncertain reformation, dependent 
upon capture and conviction. 

6. That the proposal for the abolition of the grand jury ^ (which could be effected 
only by constitutional amendment) is rash. If proposed as an economy measure, 
in that prosecutors may effect the same work on their own complaint, it is a pro- 
posal that a great fundamental of hberty, - which safeguards the rights of the 
individual citizen^ from public accusation before probable cause through indict- 
ment, is not worth its price. If proposed as a measure for reduction of crime, in 
that prosecutors would be enabled to institute proceedings more rapidly for immedi- 
ate judicial determination, it is a proposal too puerile for speculation. 

7. That it should be borne in mind that, in this Commonwealth of 4,249,614 

1 Jones V. Robins, 8 Gray, 329, 345. 

2 Jones V. Robins, supra. 

3 Commonwealth v. Harris, 231 Mass. 583; Opinion of the Justices, 232, 601; Lebowitch, Petr., 235 
Mass. 357. 361; Attorney General v. Pelletier, 240 Mass. 264, 309. 



14 P.D. 12. 

population, the good vastly outnumber the evil-minded; that, after a general 
analysis of incidents in cases of the current year, the incident of unemployment 
appears not to be appreciable, evidencing the sound moral fibre of the great rank 
and file; and that, if there be lamentation for evil, there may be laudation for the 
preponderant good; that if present penalties and disciplinary modes for control 
have been devised, in part, on the supposition that knowledge of such would 
repress manifestation of criminal disposition, it should be borne in mind that, as 
deterrents upon the censused evil-minded, they are partially calculable, but upon 
the uncounted good, they are wholly incalculable. 

8. That citation of larger enumeration of youth in criminal experiences is not 
to be taken as general condemnation of youth, for the enumeration of youth in 
all human experiences is larger than formerly, and, by greater activities in es- 
pousal of the moralities, youth maintains a ratio to be taken as commendable; 
and that, until society adopts measures^ best considered as means to protect 
neglected children and juveniles before courts it may not be said that maturity 
has fully minimized the hazards to youth. 

9. That in so far as speedy prosecution is said. to be a factor in reducing crime — 
in that fear of conviction through immediate trial is a deterrent — the district 
attorneys (by punctual attention to clearance of dockets, by readiness to try cur- 
rent cases as the}^ arise, by pendency only of cases where defendants have not been 
apprehended and are incapable of prosecution, by demonstration, instanced in 
every district, of coniictions measured in space of days after crimes) have faith- 
fully and commendably performed their services toward the reduction of crime, 
have recognized the obligations they owe to their electorate, and have proven that 
speedy administration of criminal justice does not happen in England alone. 

II. Administration, of Civil Business. 

Of the great number of cases in which consideration by courts. Federal and 
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. 

1, In the Federal Courts. 

United States Circuit Court of Appeals. 
United States District Court. 

There were no cases in the United States Supreme Court, and the matters in the 
District Court and the Circuit Court of Appeals were of a character usually heard 
there. ^ 

■ I endorse, as I did in 1931 and 1932, the recommendation, among others, of the Special Commission 
to Investigate the Laws relative to Dependent Children, which is as follows: That the definition of "neg- 
lected child" be broadened to include a child neglected through feeble-mindedness of the parent; that 
after determination by a coiu-t that a child has been neglected, its custody, pending appeal, should be 
as ordered by the court; that trial of a parent for neglect and of neglected children may be at one time 
in the Juvenile Court and not in two separate trials; that trial of appealed cases of neglected children 
shall be heard by the Superior Civil Court without jury. 

2 Defence of the Commonwealth in United States District Court on rendition proceedings (6); ap- 
pealed to United States Circuit Court of Appeals (1); protecting labor and materialmen from restraining 
order cutting off their rights. 



P.D. 12. 15 

2. In the State Courts. 
Supreme Judicial Court. 

Twelve cases invoked decision of the full court. In nine the Commonwealth 
was sustained. They relate to a variety of topics, principally taxation. ^ 

B. Cases peistding November 30, 1932. 

1. In the Federal Courts. 

United States Court of Claims. 

There is a suit seelpng to recover taxes paid upon tobacco bought by the Com- 
monwealth for use in State institutions. ^ 

1 Taxation. 

First National Bank, Trustee, v. Tax Commissioner, Mass. Adv. Sh. (1932) 947. That a resident trustee, 
although under a foreign trust, is taxable for income paid to a Massachusetts beneficiary. 

Ness V. Tax Commissioner, Mass. Adv. Sh. (1932) 1037. That a person who has abandoned his home 
in this Commonwealth, and who is, on January first, in itinera to a new home in another State is still 
an inhabitant of this Commonwealth within the meaning of the income tax statute. 

Davis V. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1932) 1415. That in a trust 
created under G. L. c. 65, § 13, by a settlor (providing for payment of income to settlor for life and re- 
mainder in fee to B, where remainderman predeceased the life tenant settlor and had willed the interest 
to C) , the Commissioner of Corporations and Taxation properly assessed a succession tax upon the value 
of the remainder interest as at the time of the death of the settlor rather than the value at the time of 
the death of the remainderman B ($145,000). 

J. G. McCrory Co. v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1932) 1579. That 
the Commissioner of Corporations and Taxation was not authorized by G. L. c. 63, §§ 30-33, inclusive, 
to disregard a corporation return of a Massachusetts corporation and to compute the tax on the pro- 
portionate parts of the consolidated net income and of the consolidated net assets, shown on the consoli- 
dated Federal tax return of the parent corporation, a New York corporation, which did no business in 
Massachusetts. 

Ruth E. Madden, executrix and trustee, v. Charles J. Madden et als., Mass. Adv. Sh. (1932) 1611. That 
under the income tax statute as it existed prior to amendment in 1931, the value of rights was to be figured 
as part of the cost of stock subscribed for in determining the amount of gain resulting from a subsequent 
sale of such stock. 
Other Topics. 

Hornblower v. Tax Commissioner, 278 Mass. 557. That a certain distribution of stock in a new corpora- 
tion constituted a dividend in liquidation rather than a sale or exchange. 

Leach v. State Fire Marshal, Mass. Adv. Sh. (1932) 125. That insertion by the Fire Marshal of certain 
conditions in a decision that no fire hazard would result from the granting of a license by local authorities 
to store petroleum products was not beyond the powers of the Fire Marshal. 

Police Commissioner of Boston v. Commissioner of Civil Service, Mass. Adv. Sh. (1932) 549. That sus- 
pended members of the Boston Police Department may not be reinstated without approval of the Civil 
Service Commission. 

Grant v. Department of Public Utilities, Mass. Adv. Sh. (1932) 653. That it is not unlawful under exist- 
ing statutes for a gas or electric company to include a service charge as an element of its rate schedule. 

Lexington v. Commonwealth, Mass. Adv. Sh. (1932) 1153. That a statute providing for settlement 
because of service in army or navy was not retroactive. 

Daniel Dunn v. Civil Service Commissioners, Mass. Adv. Sh. (1932) 1205. That leave of absence granted 
to a police officer under civil service constitutes a "separation from the service" as those words are used 
in the Civil Service Rules. 

Power v. Board of Examiners of Plumbers, Mass. Adv. Sh. (1932) 1891. Reversing decision of Board 
of Examiners of Plumbers in siispending license of petitioner. 
Single Justice. 

Defence of judiciary on writs of error (4). 

Commissioner of Banks v. Berardini et al. Petition for receiver of private banks. Receiver appointed. 

Ryba v. Sheriff of Hampden County (2 cases). Habeas corpus. 

In first, writ issued; in second, petition denied. 

Successful defence of institutions on petitions for release on habeas corpus (25), 

2 Commonwealth of Massachusetts v. United States. 



16 P.D. 12. 

2. In the State Courts. 
Supreme Judicial Court. 
A few cases relating to different matters await decision. ^ 

3. Superior, Probate, Municipal and District Courts. 
Cases were of usual type. ^ 

1 Taxation. 

Commissioner of Banks v. Commonwealth. Whether taxes due from a trust company, of which the Com- 
missioner of Banks has taken possession, are to be preferred in liquidation. 

Tirrell v. Tax Commissioner. Whether certain income is taxable as an annuity or as income from a 
trust. 

Harvard Trust Company v. Tax Commissioner. Whether the petitioner as trustee under a foreign will 
is liable for taxation of certain income. 

Federal National Bank v. Commonwealth. Whether the petitioner is entitled as assignee to a certain 
sum of money retained under a contract under which it was expressly provided that the contractor should 
not, either legally or equitably, assign any money payable thereunder. 
Other Matters. 

Defence of the judiciary on writ of error, and one certiorari. 

Dunn V. Civil Service Commission. Whether a certain person was entitled to veteran's preference under 
civil service. 

Harding v. Commonwealth. Writ of error. 
Single Justice. 

Boston, Worcester & New York St. Ry. Co. v. Commissioner of Public Works et al. Bill in equity arising 
out of revocation of location of railway in city of Newton and towns of Wellesley, Natick and Framingham. 

Attorney General v. Blagden et al. Mandamus to compel selectmen of town to give relief to a veteran. 

Sampson v. Treasurer (mandamus). 

Sampson v. Metropolitan District Commission (certiorari). 

Admission of town of Weymouth into South Metropolitan Sewerage District. 

The billboard cases (25 consolidated bills in equity, enjoining the Commissioners of Public Works from 
enforcing rules adopted in 1920 and 1921, regulating outdoor advertising, on grounds of unconstitutionality 
of both rules and St. 1920, c. 545, authorizing them) began in June, 1925. The report of the master to 
whom they were referred was filed June 2, 19.31, and by order of a justice of the Supreme Judicial Court 
was, on motion of the petitioners and against objection of the Commonwealth, recommitted in Septem- 
ber, 19.31, for further hearings and findings. The master filed a supplemental report of 93 pages in the 
Supreme Judicial Court the latter part of August, 1932. much in substantiation of the original report. 

At the request of the Commonwealth, made immediately upon the filing of the supplemental report, 
Chief Justice Rugg assigned the case for hearing before Mr. Justice C. H. Donahue. The outdoor ad- 
vertisers again filed voluminous objections to the supplemental report, — as they had to the original 
report, — and again moved to recommit the report to the master. These objections and this motion 
were argued at length in the Supreme Judicial Court on September 7 and 8, 1932, before a justice who 
has them under consideration, pending which the future course of the cases may not now be ventured. 

2 Superior Court. 

Litigations in Superior Coiwt (among which were 49 petitions in equity chiefly relating to enforcement 
of claims of lien against State contracts), proceedings in special commissions, alterations of bridges in 
Ipswich, Groton, Bernardston; defence of the Commissioner of Banks; defence of the Commonwealth 
in land damage suits; final decrees on petitions to enforce claims of lien pending at beginning of year 
and not included in foregoing figure (7). 
Probate Court. 

Estate of Eva March Tappan. Probate Court of Worcester sustained the Commissioner of Corporations 
and Taxation and dismissed petition for abatement of tax assessed by him upon a gift to a trust company 
in trust for the education, in a certain college, of girls resident in Worcester County, and, if there should 
be an insufficient number of such girls so deserving, then, in the discretion of the trust company, for girls 
resident in or outside Massachusetts, which gift the trust company contended was exempt from taxation 
under G. L. c. 65, § 1. 

Estate of Emily A. Briggs. After argument before Probate Court of Middlesex, a tax was paid which 
had been assessed by the Commissioner of Corporations and Taxation under G. L. c. 65, § 1, on the death 
of the two joint tenants of securities under a will, upon one-half the value accruing to the survivor. 

Successful defence of institutions on petitions for release and discharge in probate and district courts 
(10). 



P.D. 12. 17 

III. Statutory Services. 

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

1. S77iall Claims. 

Under the act^ enabhng settlement by the Attorney General of certain claims 
upon finding of damages under $1,000, 81 claims ^ were filed, and 40 were ap- 
proved, with a total award of $3,966.80. Of the 40, 24 came from accidents with 
State-OAvned vehicles; 10 from defects in State-owned property; and 6 from 
miscellaneous causes. The appropriation for the purpose is but $5,000. 

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

Under the statute^ providing for defence of State employees when 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, there have been 
6^ actions requiring this service. 

3. Public Charitable Trusts. 

There has been an unusual number of petitions concerning the duties of trustees 
of charitable trusts and the application of unusable funds to purposes nearest 
that of the donor.* 

4. Public Administrators. 

Public administrators^ paid into the treasury of the Commonwealth the sum of 
$43,448.08 as escheats in 57 estates to which heirs or next of kin could not be 
found. There are now 56 active public administrators, and 2, whose terms have 
expired, still have cases in process of settlement. 

5. Services Required by the Legislature. 
Membership on commissions — 

To investigate governmental activities in the town of Mashpee and on board, 
provided in consequence thereof, to direct the affairs of the town;^ 

To investigate certain annual payments by the Commonwealth to certain towns 
on account of the construction of certain additions to the metropolitan water 
system ; * 

To pass upon existence of emergencies in municipalities and to approve loans 
therefor, 9 and for the renewal of certain temporary revenue loans by cities and 
towns; ^° and on — 

1 St. 1924, c. 395. 

2 Ten denied; 31 pending. 

3 G. L. (Ter. Ed.) c. 12, § 3, amended by St. 1931. c. 408, § 1, effective September 10, 1931. 
^ Four settled; 1 tried in district court; 1 pending in Superior Court. 

5 In the Supreme Judicial Court, before a single justice, and the full court and in various probate courts. 
Examples are application of funds, left in 1905 to build or endow a Home for the Aged, and insufficient 

for the purpose. Application of funds left in trust with income to wife, with power to appoint recipients 
by will, to which power she did not specifically refer in her will, lacking which, certain specific public 
charities, asserting their interest as beneficiaries, were sustained by the Probate Court of Worcester County, 
and an appeal is pending. Estate of Alfred S. Pinkerton. 

6 The public administrators report (except 3, who failed to report) 342 estates in process of settlement; 
actual cash on hand November 30, 1932, $284,468.07; relatively few are more than a year old; a few 
ten or twelve years, obliged to be kept open for various reasons. 

' Res. 1932, c. 1. 
8 Res. 1932, c. 13. 
» G. L. (Ter. Ed.) c. 44. § 8 (9). 
10 St. 1932, c. 303. 



18 P.D. 12. 

The Milk Regulation Board, i 

The office drafted form of legislative enactment ^ of 1932, which revised the 
Blue Sky Law in considerable entirety and incorporated new provisions, as had 
been recommended by the Attorney General in report of 1931, and recommended 
by the Director of the Division of Securities and others. 

6. Industrial Accident Cases; Approval of Contracts, Deeds and Titles. 
Appearance in claims (under G. L. c. 30, § 39, as amended) for workmen's com- 
pensation by employees of the Commonwealth (41).^ 

Requirements for examination of leases * and contracts ^ have increased, and of 
deeds® notably. 

7. Applications of Other States for Return of Fugitives from Justice; Application of 

the Commonwealth for Return from Other States of Persons Here Charged with 

Offences. 
There were 249 requisition papers submitted to the Department for examination 
and report. Of these, 48 were applications of other States and 201 were appHca- 
tions of the Commonwealth on other States. There were 21 hearings conducted 
on request of counsel and by direction of His Excellency the Governor. Of the 
201 applications made by the Commonwealth, 88 were on charges of desertion, 
non-support or neglect of wife and minor children. 

8. 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 govern- 
ment it serves, occasion for observations is afforded, and I submit them for dis- 
position by the General Court. 

1. As to the protection of the rights of the people against ruthless exploitation 
by banks, and for measures enabUng the common people to enjoy and to share in 
the benefits which accrue from the common wealth. 

That for the protection of depositors, so-called thrift accounts in comynercial hanks 
and trust companies he segregated; and that commercial hanks he prohihited from 
conducting savings or thrift accounts. 

That the Commissioner of Banks he authorized to remove from office officers or direc- 
tors of hanking institutions persisting in violating hanking laws or in continuing 
unsafe and unsound policies and practices. 

That an officer of a hanking institution he prohihited from being an officer of any 
corporation or participant in any husiness engaged in the sale of securities. 

That hanks he prohihited from engaging in the sale of securities. 

1 St. 1932. c. 305. 

2 St. 1932, c. 290. 

' Conferences in 12 cases; hearings in 29; 6 hearings on review. In one case record filed in Superior 
Court, but later settled by agreement. 

* One hundred and eighty-seven leases; 176 approved, 38 related to fishing rights in the Squannacook 
River. 

' Four hundred and thirty-eight contracts; 189 related to food supplied for the various State insti- 
tutions. 

« In 1930, a normal year, for the Department of Public Works, 195; this year, 917; and 40 for other 
departments. 



P.D. 12. 19 

That banks be prohibited from engaging in any business other than the depositing 
of money and the making of loans on proper collateral and the ordinary commercial 
credits. 

The welfare of the people in all things is paramount to the rights of any group or 
class in any thing. The right to engage in legitimate enterprise may never be denied, 
but no right exists in any individual or individuals to further such enterprise for private 
enrichment at loss to the people. The wealth of banks is the wealth of the people, 
though in the custody of bankers, and the people have right to demand that the power 
of money and its possession shall not be used by such custodians to their detriment 
and disadvantage. 

That, in cases where accommodation by co-operative banks has been extended to 
unemployed home owners for periods not longer than two years under St. 1931, c. 865, 
§ 33, the directors may have authority to renew or extend such extensions for like 
periods. ^ 

As any accommodation, made pursuant to the statute, is likely to be terminating 
in 1933, and as the conditions, — for the alleviation of which said statute was enacted, 

— continue, it appears that provision for such further accommodation is needful. 

That co-operative banks be enabled to become affiliated with the Home Loan Bank 
by provisions permitting them to invest in the capital stock of and to rehypothecate 
mortgages to the Home Loan Bank. 

Under the laws of the Commonwealth as at present in force, the co-operative banks 
of this Commonwealth may not take advantage of the facilities of the Home Loan 
Bank in this district, designed at the last session of Congress to serve — much like the 
Federal Reserve System in rediscounting certain types of loans for commercial banks 

— as a rediscounting agency for banks making certain types of mortgages on small 



That for the protection of home owners, purchasing homes through co-operative 
banks or by mortgage to savings banks, in default through economic conditions and 
having a record of regidarity in paijments and dues prior to such conditions, the Com- 
missioner of Banks may determine whether financial status, offered to such home 
owner as excuse for not extending the time of the mortgage, as authorized by St. 1931, 
c. 365, is i?i fact true. 

Though the statute was enacted for the benefit of home owners, the co-operative 
banks may decline to extend such benefit upon representation of a bank, which the 
home owner may not verify, that conditions disenable extension. The Commissioner 
of Banks may verify the fact. 

2. As to protection of the rights of the people against classification as criminals 
for \dolations of traffic laws. 

That, as violations of traffic regulations do not involve moral turpitude, they be no 
longer classified as misdemeanors and cited as a criminal record unless they include 
other offences, such as intoxication or endangering life and property, and that arrange- 
ments be effected, either by statutory provision or by the court itself, for a special session 
for disposition of such cases exclusively. 

That the law of the road requiring vehicles proceeding in the same direction and 

I Amend St. 1931, c. 365, § 33, by adding at the end of the first paragraph the sentence: — The directors 
shall have power to renew or extend such accommodation for periods not longer than two years. 



20 P.D. 12. 

overtaking another to drive to the left of the middle of the traveled portion of the way 
he modernized. ^ 

Since the enactment of G. L. c. 89, § 2, at a time when the width of existing roads 
could only accommodate two vehicles, it has been common to build roads capable of 
accommodating more than two vehicles proceeding in the same direction. To require 
vehicles on such roads to drive to the left of the middle of the traveled portion of the 
way before overtaking another vehicle defeats the purpose of modern construction for 
the effectual separation of traffic moving in opposite directions, and its non-observance 
may constitute a technicality in any litigation detrimental to the automobile driver. 

3. As to protection of the rights of the people against certain harassing prac- 
tices of bill collection agents to the abuse of creditors and debtors. 

That, to 'protect debtors from unscrupidous hill collectors, to secure to creditors the 
prompt payment of sums collected, and to safeguard honest collection agencies from 
disreputable practices, the business of collection agencies he licensed and regidated by 
a more effective system. ^ 

At present the only prerequisite for conducting a collection agency is the filing of a 
bond with the State Treasurer, conditioned upon payment to creditors of moneys 
collected. If the moneys are not so paid, the creditor is put to the expense of litigation 
to recover on the bond by suit in the name of the State Treasurer. Meantime such 
collector may continue such practice of withholding collections from other creditors. 

Debtors have been intimidated by notices, designed, by use of facsimiles of State 
and court seals and legal forms, to create the belief that they are legal summonses and 
court decrees, when, in fact, they are spurious. Debtors have been fraudulently and 
wrongfully induced to sign mortgages and assignments of life interests on representa- 
tion that they were merely signing notes in payment of their debts. Clauses harmful 
to the debtor, have been inserted after a signature has been obtained. Criminal prose- 
cution may follow, but conviction does not afford redress to the debtor, and, despite it, 
such collector may continue in business. 

The creation of a licensing body, with right to entertain and hear complaints against 
collection agencies, and with right to suspend and revoke licenses, will protect the 
debtor, secure the creditor, by the turning over to him of moneys which have been 
collected for his account, and safeguard honest collection agencies, with assurance of 
honest business practices and of the confidence of the people. 

Such licensing and regulation of collection agencies appropriately may be under the 
jurisdiction of the State Treasurer, with an additional deputy, whose service, by reason 
of income from fees, would entail no additional expense to the Commonwealth for its 
administration. 

4. As to protection of the rights of the people against deprivation of liberty, 
by summary arrest and imprisonment, for inability to pay, in full and on demand, 
personal property taxes plus interest and fees of constables, or for refusal to pay 
assessed taxes for which a taxpayer is not liable. 

That summary arrest and imprisonment for non-payment of personal property 
taxes plus fees of constables be abolished and civil proceedings substituted. ^ 

The system of summary arrest and imprisonment of persons, unable to pay taxes — 
assessed for poll, old age assistance, personalty and motor vehicle charges — plus fees 

1 This may be accomplished by substituting for G. L. o. 89, § 2, provision to the effect that "the driver 
of a vehicle passing another vehicle traveling in the same direction shall drive a safe distance to the left 
of the said other vehicle; and, if the way is of sufficient width for the two vehicles to pass, the driver of 
the leading one shall not wilfully obstruct the other." 

2 A bill to accomplish this has been filed by me. 

' A bill to accomplish this has been filed by me and the Automobile Owners League. 



P.D. 12. 21 

run up by constables for services, necessary and unnecessary, ought to be abolished. 
The jailing of a person for inability or refusal to pay a constable's fee in addition to the 
tax is intolerable. These fees oftentimes exceed the amount of the tax three and four 
fold. The municipality does not receive them; only the constables benefit. Imprison- 
ment, therefore, is not for failure to pay taxes but chiefly for failure to pay constables 
their compensation. No longer should any man have power summarily to put another 
behind the bars for inability, failure, or, even, refusal, to pay him dollars. 

The system enables arrest for refusal to pay taxes, even if facts demonstrate that 
the person is not liable for the amount of the tax or for any tax. Arrest first, and 
explanation, abatement or adjustment afterwards — all at the taxpaj'er's annoyance 
and expense — is the code. Offer to pay in instalments and tender of part payment, 
with definite assurance of full satisfaction, and even honest misunderstanding of proc- 
esses, will not avoid hauHng a man off the street and clamping him behind the bars. 
Moreover, a person assessed taxes or municipal charges is entitled to know on the face 
of the tax bill the exact items for which he is taxed, the date upon which such taxes are 
due, the penalties and consequences of failure applicable to assessments for realty, 
personalty, water, sewer and other municipal charges — for want of all of which he is 
obliged to inquire at town and municipal offices and meantime is subjected to hazards 
of which he is unaware. 

We long ago abolished arrest in legal proceedings for collection of personal debts, 
and adopted the more just, more rational and effective system of first examining 
debtors relative to their liability and ability to pay, and ordering the mode of payment. 

I recommend the application of this principle as a means of collecting taxes and 
constables' fees. 

5. As to protection of the rights of the people to an accurate, understandable 
portrayal of the finances of corporations offered to them as inducements for in- 
vestments, and against the fraud of "tipster sheets." 

That corporate statements, presented to the public as bases of financial and business 
condition for purposes of information to stockholders and inducement to investment, 
be required to be more uniform and understandable, and under standardized account- 
ing, with date of statement of condition clearly expressed, accompanied by the infor- 
mation, in the event such statement is offered for the purpose of inducing investments, 
whether or not such statement accurately reflects the condition of the company on the 
date of offer. 

6. As to protection of the rights of the people to an assured recovery from 
stock promoters when fraud has been adjudicated. 

That, to safeguard the public further from fraudulent sale of securities, bonds shall 
he required of brokers and salesmen as a condition precedent to issuance of licenses 
to them by the Department of Public Utilities, reciting as one condition that, if it is ad- 
judicated, either in a civil or a criminal proceeding, that the purchase of stock has been 
procured by fraud or misrepresentation, the purchaser may have recourse to the se- 
curity for the amount of the loss in the event that the broker or salesman does not meet it. 

In criminal proceedings, all that the prosecutor may do is to prosecute the crime; 
but prosecution cannot recover any loss. If a person desires to engage in such busi- 
ness, as between him and the purchaser, the burden should be his. 

7. As to protection of the rights of the people in natural resources and their 
uses and services. 

That full control of holding companies operating in the power utility field and of 
all companies dealing in utilities be vested in the Department of Public Utilities, 
covering organization of such companies, supervision of all contracts between holding 



22 P.D. 12. 

companies and their operating companies, issue of securities to the public, regulation 
oj accounts, regulatory measures as to rates, charges and services to consumers, and 
measures determinable of combination and control of utility company in holding com- 
panies. 

8. As to the protection of the right of the people, particularly farmers and dairy- 
men, against fraud and hardship by practices of cattle and milk dealers. 

That cattle dealers be licensed. 

Though the civil law gives a remedy to the farmer by suit for breach of warranty 
of soundness or qualities of animals sold, it is at expense and annoyance of litigation 
to which he should not be subjected. As farmers who are practiced upon are generally 
without means for such recourse, they are practically at the mercy of such dealers. 
A system of licensing under the Division of Animal Husbandry would be self-sustain- 
ing, through receipt of fees, and would be a deterrent to such abuses. 

That milk dealers be licensed. 

The experience of dairymen, encountering hazards of season and economic conditions 
exacting utmost courage, ought not to be at jeopardy of continued practices of some 
of those collecting and distributing the milk produced by them. 

9. As to the rights of the people in the arrangement of quarters for the conduct 
of their public business by State departments; against taxation for expenses of 
litigation fees in cases concerning their Commonwealth; against added taxation 
for records of deeds inaccurately titled; against adjudication involving the Com- 
monwealth without its appearance; and for measures further enabling return of 
fugitives from justice. 

That the law relating to the authority of any State department, commission or board 
to procure quarters or occupy premises outside the State House or other building owned 
by the Commonwealth and the execution of leases therefor be made uniform. ^ 

There is no present authority as to the form of tenancy by the different State de- 
partments, commissions or boards, of other than State-owned property; and when 
leases are authorized the period for such is not prescribed. Uniformity in such author- 
ization is desirable, and, in my opinion, the power to lease will result in a saving to the 
Commonwealth of rental costs. 

That the Commonwealth and the counties be not required to pay entry fees for litiga- 
tion in any of its courts. ^ 

G. L. (Ter. Ed.) c. 262, § 4, relieves payment of fees in the Supreme Judicial and 
Superior Courts. But entry fees in the district courts are not fees of clerks but of the 
courts. 

That the fee for recording a deed ivithout accurate reference to title be greater than for 
recording a deed with such title. 

For revenue to offset damage to books uselessly searched, and to encourage greater 

1 For St. 1924, c. 356, now G. L. (Ter. Ed.) c. S, § lOA, substitute a provision to the effect that any 
State department, commission or board, after appropriation has been made for the payment of rent for 
the current year, may procure quarters or occupy premises outside of the State House or other building 
ow-ned by the Commonwealth, subject to the approval of the Superintendent of Buildings and of the 
Governor and Council; that the executive or administrative head of any such department, commission 
or board, in the name and behalf of the Commonwealth, may execute a lease or leases of any such quar- 
ters or premises for a term or terms not exceeding five years each; but that no such lease shall be valid 
until approved by the Superintendent of Buildings and by the Governor and Council. 

2 Amend G. L. (Ter. Ed.) c. 262, § 2, by providing that no entry fee ia civil actions in such courts shall 
be required of the Commonwealth or of a county. 



P.D. 12. 23 

accuracy in conveyancing, enuring to the benefit of persons interested in the real 
estate, particularly in the accuracy of taxes assessed thereon. 

That the rights of the Comrnonivealth may not be determined in any case arising 
under the Workmen's Compensation Act until the Attorney General has been given an 
opportunity to pass upon the points of law involved. ^ 

There is no present provision for the consideration of the legaUty of claims against 
the Commonwealth before agreements for payment have been made by the depart- 
ments concerned, whereby any right of defence may be foreclosed. 

That a uniform act to secure the attendance of witnesses in criminal cases be enacted 
enabling extradition of any important witness in a serious case from a place any- 
where within one thousand miles of the court in which his testimony is needed, if the 
State of such place has a similar law. 

Common effort is being made by passage in the several States of such uniform act. 

10. As to protection of the rights of the people against solicitation for charities 
which keep no accounts. 

That for the protection of the public from appropriation of funds, solicited from 
them for charitable or political purposes, other than as solicited, — and particularly 
by u7iincorporated groups and by persons or groups unidentified with some known and 
responsible charitable agency, — accounts of all receipts and expenditures be required 
to be kept, which, on complaint by a donor, may be exhibited to and examined by any 
court before which such a complaint may be made. 

11. As to protection of the right of the people for safeguard in the exercise of 
suffrage. 

That when recounts of State offices are petitioned for in localities, the names of 
petitioners shall first be certified to be names of voters.^ 

That there be stricter regulations for responsible custody and preservation from 
destruction of marked ballots. 

That there be provision requiring identification, by name and address, of every 
person taking out and filing a nomination paper, accompanied by name and address 
of the person who has circulated each paper filed. 

That whenever recounts are demanded, every candidate for the office shall be season- 
ably notified^ to enable expression of his desire for the count on his candidacy, and, if 

1 Effected by adding a new section, section 69A, in G. L. (Ter. Ed.) c. 152, to the effect that no com- 
pensation shall be paid by the Commonwealth under this chapter without the previous written consent 
of the Attorney General, or an order of the Department or any member thereof, and that no such order 
of the department or a member thereof shall be entered until the Attorney General has been given an 
opportunity to appear and be heard in behalf of the Commonwealth. 

2 In State-wide recounts, the statute requires certification that the aggregate thousand names of peti- 
tioners are names of voters; not so as to the ten petitioners in towns or city wards (50 in Boston). Insert 
in G. L. (Ter. Ed.) c. 54, § 135, sixth line, after the word "clerk" the words: — city or town clerk or 
registrars of voters shaU forthwith certify thereon the number of signatures which are names of voters 
in said ward or town. 

3 Every candidate for an office shall have the right to be present and to have recount of votes cast for 
him, if a recount is petitioned by or for another candidate without necessity of safeguarding his interests 
by preparing or filing a petition for recount of such votes. Insert in G. L. (Ter. Ed.) c. 54, § 135, fifty- 
sixth hne, after the word "candidates" the words: — whose names appear on the ballot for the ofEce in 
question may be, — and in the sixtieth line, after the word "candidate" the words: — whose name 
appears on the ballot for the office in question. 

Every candidate for an office concerning which recount is petitioned for by or for another for such 
office ought to have three days' notice of the recount. Insert in G. L. (Ter. Ed.) c. 54, § 135, fifty-fifth 
line, after the word "give" the words: — three days. 



24 P.D. 12. 

so expressed, to enable his reipresenlation at such recount, if not in person, by a person 
lawfully designated by him. ^ 

12. As to the protection of the rights of the people toward equality of labor and 
wealth. 

That the rights of labor, asserted after many years of struggle, and measures, at- 
tained in pursuance thereof, designed for the recognition of the principle — to be ulti- 
mately achieved — of rightful equation of work with wealth, produced by it, for others 
without their toil, never be retracted. 

13. As to the rights of the people to institute new or to modify present social, 
economic and political systems best exemplifying the American concept of equality 
in the enjoyment of life, liberty and the pursuit of happiness avowed in the Declara- 
tion of Independence and principled in the Constitutions of the United States 
and of Massachusetts. 

That, in a modified way and in practice there has been a redistribution of capital, 
effected — 

By expenditure in Massachusetts in 1932 of about $1^0,000,000 to about 400,000 
persons, dependent upon organized assistance; 

By transfer of title to property of about $6,000,000 to municipal governments for 
taxes and to mortgagees through foreclosures; 

By imminency of other transfers to municipalities for non-payment of taxes; 

By unemployed home owners who, though unable to pay, by reason of present title 
to real estate are denied welfare aid; 

By those owners of real estate, who — because of loss of rent from unemployed ten- 
ants whom they are obliged by municipalities to shelter without any allowance upon 
tax bills — have not enough revenue to pay taxes; and — 

By engagement of banks in the management of businesses and properties through 
foreclosed mortgages; and — 

As the coining of times, better or worse, will be too late to avert pending losses to the 
unfortunate which the fortunate will salvage; and — 

As there can be no permanent order without rearrangements enabling the common 
people, upon whom the burden falls heaviest in adversity, to share the benefits of pros- 
perity; 

The people have the right, as set forth in Article VII of the Declaration of Rights, 
to gcvernmental measures best promotive of happiness, in the making of which the 
Constitutions of the United States and of Massachusetts liberally enable adaptations 
of the capitalistic system., without violation or destruction of its essence and with pres- 
ervation of freedom of the individual, for the realization of the concept of that body 
politic, designed by the founders of Massachusetts, — a Common Wealth. 

Conclusion. 

A Recommendatiox. 

The chief clerk, Louis H. Freese, has rendered faithful, efficient and inteUigent 
service for forty-two years. The present cashier, Harold J. Welch, has served 
twenty-nine years with unimpeachable integrity, accuracy and fidelity. While 
successive Attorneys General have consecutively appointed them, their tenure 

1 Every candidate should have right to witness the recount, not at a distance outside the rail, but at 
each table. Insert in G. L. (Ter. Ed.) c. 54, § 135, sixty-first line, after the word "recount" the words: — 
at each table where a recount of the ballots affecting such candidate is being held. 



P.D. 12. 25 

and services to the Commonwealth ought not to be at hazard of political fortune, 
I may not conclude without a recommendation, affording me great pleasure, that 
removal of these two shall be subject to the provisions for removal of persons 
under G. L. (Ter. Ed.) c. 31. 

An Appreciation. 

To the Assistant Attorneys General, to all others associated in the Department, 
to the district attorneys, and to the members of police. 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. 



26 P.D. 12. 

Details of Capital Cases. 

1. Disposition of indictments pending Nov. 30, 1931: 

Northern District (Middlesex County cases: in charge of District Attorney 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 dismissed June 3, 1932, for want of prosecution. 

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; April 6, 1932, nolle 
prosequi as to both, because of a new indictment. 

Southeastern District (in charge of District Attorney Winfield M. Wilbar). 

Clarence H. ElUs. 

Indicted in Plymouth County, October, 1931, for the murder of Thomas A. Mars- 
land, at Carver, on Oct. 4, 1931; Feb. 8, 1932, entry of nolle prosequi as to so much 
of said indictment as charged murder in the first degree; arraigned Feb. 11, 1932, 
and pleaded not guilty; trial June, 1932; verdict guilty of manslaughter; there- 
upon sentenced to State Prison for not less than seven years nor more than nine 
years. 

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

Indicted in Bristol County, February, 1919, for the murder of Annie Brown; ar- 
raigned Nov. 20, 1931, and pleaded not guilty; trial April, 1932; verdict of guilty 
of murder in the second degree; thereupon sentenced to State Prison for life. 

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; trial February, 1932; ver- 
dict of not guilty as to Vaillancourt; March 10, 1932, Canuel retracted former 
plea and pleaded guilty to murder in the second degree, which was accepted ; there- 
upon sentenced to State Prison for life. 

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; trial April, 1932; verdict of not 
guilty. 

Samuel Gallo. 

Indicted January, 1929, for the murder of Joseph Fantasia on June 11, 1927; ar- 
raigned 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 tiial September, 1930; verdict of guilty of murder in the first degree; there- 
upon sentenced to death by electrocution; Oct. 17, 1931, motion tor new trial 
allowed; third trial July, 1932; verdict of not guilty. 

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

Joseph Pulara. 

Indicted in Berkshire County, July, 1929, for the murder of Lucey Pulara, at Pitts- 
field, on Jan. 25, 1929; arraigned July 14, 1931, and pleaded not guilty; trial 
January, 1932; verdict of guilty of murder in the second degree; thereupon sen- 
tenced to State Prison for life. 



P.D. 12. 27 

John Siano. 

Indicted in Hampden County, December, 1922, for the murder of Nicholas Napoli, 
at East Longmeadow, on Sept. 18, 1922; arraigned Feb. 18, 19.31, and pleaded 
not guilty; trial May, 1932; verdict of not guilty by order of court. 

2. Indictments found and dispositions since Nov. 30, 1931: 

Eastern District (Essex County case: in charge of District Attorney Hugh A. Cregg). 
Charles W. Carroll. 

Indicted September, 1932, for the murder of Sarah F. Hanlon, at Lynn, on Aug. 13, 
1932; committed to Bridgewater State Hospital Oct. 11, 1932. 

Middle District (Worcester County cases: in charge of District Attorney Edwin G. 

Norman). 
Roy A. Martin. 

Indicted August, 1932, for the murder of Pearl Ethier Moran, at Spencer, on Aug. 
11, 1932; arraigned Aug. 26, 1932, and pleaded not guilty; trial October, 1932; 
verdict of guilty of murder in the second degree; thereupon sentenced to State 
Prison for life. 

Thaddeus Zakrzewski. 

Indicted August, 1932, for the murder of Walter Witkowski, at Worcester, on June 
28, 1932; arraigned Aug. 26, 1932, and pleaded not guilty; Oct. 6, 1932, retracted 
former plea and pleaded guilty to murder in the second degree, which was accepted; 
thereupon sentenced to State Prison for life. 

Northern District (Middlesex County cases: in charge of District Attorney Warren 

L. Bishop). 
William Irving Brown. 
Indicted January, 1932, for the murder of Richard B. Wilson, at Newton, on Dec. 
28, 1931; arraigned Jan. 5, 1932. and pleaded not guilty; trial February, 1932; 
verdict of guilty of murder in the second degree; thereupon sentenced to State 
Prison for life. 

Caroline Conley. 
Indicted February, 1932, for the murder of an infant child, at Waltham, on Jan. 17, 
1932; arraigned Feb. 3, 1932, and pleaded not guilty; Feb. 3, 1932, nolle prosequi. 

Southeastern District (in charge of District Attorney Winfield M. Wilbar). 
Joseph E. Bamforth. 

Indicted in Plymouth County, February, 1932, for the murder of Irene Bamforth, 
at Bridgewater, on Nov. 11, 1931. The defendant was an inmate of the Bridge- 
water State Hospital, where the homicide took place, and is still confined there. 

Edwin O. Wood. 

Indicted in Norfolk County, September, 1932, for the murder of E. Wright Sargent, 
at Plainville, on April 17, 1932; arraigned Sept. 9, 1932, and pleaded not guilty; 
Sept. 26, 1932, retracted former plea and pleaded guilty to manslaughter, which 
was accepted; thereupon sentenced to State Prison for not less than three years 
nor more than five years. 

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

Sylvester N. Fernandes. 

Indicted in Barnstable County, April, 1932, for the murder of John Alves, at Barn- 
stable, on Dec. 23, 1931; arraigned April 8, 1932, and pleaded not guilty; trial 
April, 1932; verdict of guilty of murder in the first degree; thereupon sentenced 
to death by electrocution, which sentence was carried out Aug. 12, 1932. 

Manuel G. Fontes. 
Indicted in Barnstable County, October, 1932, for the murder of Manuel Fernandes 
and Julia V. Fontes, at Falmouth, on Oct. 17, 1932; arraigned Oct. 21, 1932, and 



28 P.D. 12. 

pleaded not guilty; Oct. 26, 1932, retracted former plea and pleaded guilty to 
manslaughter as to each indictment; plea accepted; thereupon sentenced to two 
and one-half years in the house of correction at Barnstable. 

3. Pending indictments and status: 

Northern District (Middlesex County cases: in charge of District Attorney Warren 

L. Bishop). 
Chin Kee. 

Indicted September, 1932, for the murder of Sam Lee, at Melrose, on Aug. 24, 1932; 
arraigned Sept. 14, 1932, and pleaded not guilty; trial October, 1932; verdict of 
guilty of murder in the first degree; motion for new trial and claim of appeal 
pending. 

James T. Garrick, Herman Snyder and John A. Donnellon. 

Indicted April, 1932, for the murder of James M. Kiley, at Somerville, on April 9, 
1931; Garrick and Snyder arraigned April 6, 1932, and Donnellon on May 2, 1932, 
and each pleaded not guilty; trial May, 1932, as to Snyder and Donnellon; ver- 
dict of guilty of murder in the first degree as to each; claim of appeal of each pend- 
ing; indictment as to Garrick pending. 

Lero}^ B. SkilUngs. 

Indicted June, 1931, for the murder of Catherine Skillings, at Dracut, on May 22, 
1931; arraigned June 10, 1931, and pleaded not guilty; June 12, 1931, committed 
to Danvers State Hospital for observation. 

Northwestern District (in charge of District Attorney Joseph T. Bartlett). 
Herman E. Barnes. 



Indicted in Franklin County, November, 1932, for the murder of Nellie E. 

at Charlemont, on Sept. 14, 1932; committed to a hospital for the insane for 
observation. 

Florence M. Wilhamson. 
Indicted in Hampshire County, October, 1932, for the murder of William L. Wil- 
liamson, at Northampton, on Oct. 23, 1932; arraigned Oct. 25, 1932, and pleaded 

not guilty. 

Southern District (in charge of District Attorney William C. Crossley). 
Louis C. Blanchette, John H. West and Clifford R. Wordell. 

Indicted in Bristol County for the murder of Elizabeth T. Head; arraigned Feb. 8, 
1932, and each pleaded not guilty; trial March, 1932, as to West and Wordell; 
verdict of guilty of murder in the second degree as to both; thereupon sentenced 
to State Prison for life; indictment as to Blanchette pending. 

Roland G. Bousquet. 

Indicted in Bristol County, February, 1932, for the murder of Edward E. Gobin, 
at Attleboro, on Jan. 20, 1932; arraigned Feb. 8, 1932, and pleaded not guilty; 
trial March, 1932; verdict of guilty of murder in the first degree; April 8, 1932, 
motion for new trial denied; claim of appeal pending. 

Frank Dombzalski and Louis Gwizdoski. 
Indicted in Bristol County, November, 1932, for the murder of John Roselowitz; 
not yet arraigned. 

Arthur B. Manchester. 
Indicted in Bristol County, November, 1932, for the murder of Arthur Pelletier and 
Marilla Pelletier; not yet arraigned. 

Western District (in charge of District Attorney Thomas F. Moriarty). 
Mary Walence. 
Indicted in Hampden County, September, 1932, for the murder of Paul Walence, at 
Holyoke, on July 11, 1932; arraigned Oct. 6, 1932, and pleaded not guilty. 



P.D. 12. 29 

OPINIONS. 



Retirement Systems — County — Employees. 

Persons employed in the county hospital of Worcester County are not 
county employees, within the meaning of G. L. c. 32, § 20. 

Persons employed in county agricultural schools are countj^ emploj^ees, 
under certain circumstances, within the meaning of G. L. c. 32, § 20. 

Dec. 16, 1931. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir : — You have requested my opinion upon the following ques- 
tion of law in connection with the duties imposed upon you by G. L. c. 32, 
§§ 34 and 36, as amended, with relation to county retirement systems: — 

"Are persons employed in the service of the county hospital of Worcester 
County, created under G. L. c. Ill, §§ 78 and 79, employees of said county, 
under G. L. c. 32, §20?" 

I answer your question in the negative. 

G. L. c. 32, § 20, as amended, defines the word "employees," as used in 
said chapter 32 with relation to county retirement systems, as follows: — 

'"Employees', any persons permanently and regularly emploj^ed in the 
direct service of the county whose sole or principal emploj^ment is in sucK 
service, ..." 

The statute specifically providing for the tuberculosis hospital of 
Worcester County, St. 1928, c. 368, which was duly accepted, in its title 
and first section reads : — 

"An Act authorizing the County of Worcester to raise and expend Money 
for the Purpose of providing a Tuberculosis Hospital for the Worcester 
County Tuberculosis Hospital District. 

Section 1. For the purpose of providing a tuberculosis hospital for 
the Worcester county tuberculosis hospital district under the provisions 
of sections seventy-eight to ninety, inclusive, of chapter one hundred and 
eleven of the General Laws, the county commissioners of said county may 
raise and expend a sum not exceeding six hundred thousand dollars sub- 
ject to the provisions of said sections." 

Moreover, you state in your letter that the hospital to which you refer 
is a "tuberculosis hospital" "maintained by a district." 

In Peck's Case, 250 Mass. 261, the Supreme Judicial Court has discussed 
at length the nature of hospitals provided under the provisions of G. L. 
c. Ill, §§ 78-90, inclusive, like the one under consideration, and has held 
that a laborer employed in such a hospital was not the employee of the 
county in which it was maintained but of the county commissioners acting 
as trustees for a tuberculosis hospital district, so that liability under the 
Workmen's Compensation Act for an injury to such employee did not fall 
upon such county. In that opinion the court calls attention to the fact 
that in relation to the emploj^ees of a similar hospital, known as the Nor- 
folk County Tuberculosis Hospital, it was assumed that an act of the Leg- 
islature was necessary to give employees at similar institutions the same 
rights in the Norfolk County Retirement Association that employees of 
the county had under G. L. c. 32. 



30 P.D. 12. 

In an opinion by one of my predecessors in office (VIII Op. Atty. Gen. 
407), with which I concur, it was determined that the treasurer of such a 
hospital as is the subject matter of your inquiry was not an employee of 
the county so that his salary as county treasurer included compensation 
for services rendered as treasurer of such hospital. 

The opinion of another of my predecessors in office given to the then 
Insurance Commissioner, January 19, 1922 (VI Op. Atty. Gen. 379), which 
appears to hold that employees of the then existing Norfolk County 
Tuberculosis Hospital were members of the county retirement associa- 
tion, is not of weight in determining the question now before me, because 
it was assumed in that opinion, without a determination upon the point, 
that the hospital therein referred to was in fact a county institution. 

I am therefore of the opinion that persons employed in the sei-vice "of 
the county hospital of Worcester County," referred to in your question, 
which hospital is, as you state in your letter, a "tuberculosis hospital" 
"maintained by a district," and described in the title of St. 1928, c. 368, 
establishing the institution, as a "tuberculosis hospital for the Worcester 
County Tuberculosis Hospital District," are not employees of the said 
county, within the meaning of the word "employees" as defined in G. L. 
c. 32, § 20, as amended. 

You have also asked me a second question : — 

"Are persons employed by the board of trustees for aid to agriculture, 
created under G. L. c. 128, § 40, employees of the county, under G. L. 
c. 32, §20?" 

G. L. c. 128, § 40, as amended by St. 1931, c. 301, § 22, is as follows: — 

"In each county, except Suffolk and except counties maintaining vo- 
cational agricultural schools, there shall be an unpaid board of nine 
trustees to be known as trustees for county aid to agriculture. The 
county commissioners of each such county shall annually appoint three 
trustees, qualified as hereinafter provided, to serve for three years from 
April first of the year of appointment, and shall fill any vacancy in said 
board for the unexpired term. All of said trustees shall be residents of 
the county where they are appointed, one shall always be a county com- 
missioner of said county, and four so far as is possible shall be taken from 
the directors, chosen as provided in the following section, of such cities 
and towns as have appropriated funds toward carrying out sections forty 
to forty-five, inclusive. The accounts of the trustees shall be audited by 
the director of accounts in the manner in which other county accounts 
are audited under general law. The trustees shall annually submit to 
the county commissioners a report for the previous year with a statement 
of receipts and expenditures in such form and at such time as is required 
by them, and they shall cause the said report to be printed as a part of 
their regular annual report." 

The other sections of said chapter 128 applicable to the said trustees 
read : — 

"Section 41. Choice of the directors mentioned in the preceding 
section shall be made in such towns at the annual town meeting at which 
the appropriation is made, or at the next succeeding annual meeting 
when the appropriation is made at a special meeting, and in such cities, 
by the mayor, not later than fifteen days following the vote authorizing 
the appropriation. The directors shall serve for such terms as the mayor 
in cities and the voters in towns shall determine. 



P.D. 12. 31 

Section 42. The trustees may receive on behalf of the county and 
apply to the purposes of sections forty to forty-five, inclusive, money 
appropriated therefor by the general court for any county or by any 
town, or by the federal government, and may control the expenditure 
thereof either solely or in conjunction with representatives or agents of 
the commonwealth or of the United States, or of any department, com- 
mission, board or institution created under the statutues of this com- 
monwealth or under an act of congress. The trustees may enter into 
agreements, arrangements or undertakings with any such departments, 
commissions, boards and institutions relative to extension work with 
adults and with boys and girls in agriculture, home making and country 
Hfe. 

Section 43. The trustees shall maintain one or more agents or in- 
structors in agriculture, homemaking and country life, who shall meet 
the residents of the county individually and in groups for the purpose of 
teaching and demonstrating better practice in agriculture and home- 
making, the benefits to be derived from co-operative efforts, better methods 
of marketing farm products and the organization of communities to build 
up country life. 

Section 44 (as amended). The trustees shall annually prepare and 
submit to the county commissioners, not later than the first Wednesday 
in December, a budget containing detailed estimates of all sums required 
by them for carrying out sections forty to forty-five, inclusive, during the 
ensuing year. The county commissioners shall include in their annual 
estimate of county expenses to be appropriated by the general court and 
raised by the annual county tax levy at least one half of such sums as they 
deem necessary to carry out said purposes." 

I answer this question in the affirmative. 

The foregoing provisions of the statute indicate a legislative intent to 
create a system of agricultural aid which shall be an integral part of county 
administration. Appropriations are to be for the benefit of the whole 
county, and though cities and towns may contribute to the expenses and 
thereby secure representation on the board of trustees, yet the work of 
the board is to be carried on for the county as a whole, the county commis- 
sioners are to appoint the members, one of the county commissioners is to 
be a member of the board, the accounts of the trustees are to be audited 
in the manner in which "other county accounts are audited," and the 
trustees are to report annually to the county commissioners and to sub- 
mit to them their budget. At least one half of the sum deemed necessary 
to carry out the purposes for which the board of trustees was created is 
to be raised by the annual county tax levy. 

Since such part of the burden of maintenance of agricultural schools 
and other aids to agriculture in a county as is to be paid by the county, 
under the terms of the instant statute, is to be borne by the county as a 
whole, it would seem as a matter of law that persons employed by the 
said board are in the direct service of the county, within the meaning of 
G. L. c. 32, § 20, as amended, and, if their sole or principal employment 
is in such service, they are, in my opinion, to be included in the county 
retirement system. 

Very truly yours, 

Joseph E. Waener, Attorney General. 



32 P.D. 12. 

Insurance — Broker — Exemption from Fee — Navy Service. 

Service by a sailor of the United States Navy in the occupation of Vera 
Cruz in 1914 does not constitute service in the navy "in time of war 
or insurrection." Dec. 22, 1931. 

Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — You have asked my opinion as to whether a certain 
apphcant for an insurance broker's hcense under G. L. c. 175, § 166, as 
amended, is exempt from paying the fee prescribed for such Hcense by 
said section 166, on the ground that the apphcant in question was a mem- 
ber of the naval forces of the United States who participated in the occu- 
pation of Vera Cruz, Mexico, in 1914. 

G. L. c. 175, § 167A, as amended, enacted in its original form by 
St. 1924, c. 450, § 12, reads as follows: — 

"No fee for a license under section one hundred and sLxty-six or one 
hundred and sixty-seven shall be required of any soldier, sailor or marine 
resident in this commonwealth who has served in the army or navy of the 
United States in time of war or insurrection and received an honorable 
discharge therefrom or release from active duty therein, if he presents to 
the commissioner satisfactory evidence of his identity." 

Before the amendment of said section 166 in 1924 the foregoing exemp- 
tion was contained, in substance, in said section 166 itself, as applicable to 
those applying for licenses under the provisions of that section. 

The meaning of the phrase "in time of war," as so used in relation to 
exemption from the payment of the fee required by section 166, was 
considered at length in an opinion of one of my predecessors in office 
given to the then Commissioner of Insurance on May 22, 1923 (VII Op. 
Atty. Gen. 172), with which opinion I concur. It was held therein that 
service by an applicant as a member of the Massachusetts National 
Guard in the military service of the United States during the punitive 
expedition into Mexico in 1916 did not constitute service in the army or 
navy of the United States "in time of war," within the meaning of the 
words "in time of war" as used in said section 166 before amendment, 
because the United States was not at that time, as a matter of law, en- 
gaged in war with Mexico, 

The principles upon which such opinion was based apply with equal 
force to the instant matter. 

The power to declare war rests with Congress, under U. S. Const., 
art. I, § 8. 

A consideration of the address to the Senate and House of Represent- 
atives made by President Wilson on April 20, 1914, and of the debates 
in both bodies that followed thereafter (Cong. Rec, vol. 51, pt. 7, pp. 
6909-7015), shows conclusively that the President did not ask Congress 
to declare war upon Mexico, with the de facto government of which country 
we had not for some time been in ordinary diplomatic relations, but that 
he merely asked for an expression of approval of the means which he, as 
the commander in chief of the army and navy, had adopted and intended 
to adopt to seek amends for certain indignities which had been committed 
against the United States by some of the various factions which were then 
engaged in a struggle for ascendancy in Mexico. 

The joint resolution passed by Congress on April 22, 1914, after the 
receipt of said address, specifically disclaims an intention "to make war 
upon Mexico." Such resolution, approved April 22, 1914, reads as follows: 



P.D. 12. 33 

"(No. 10.) Joint Resolution justifying the Employment by the President of 
the Armed Forces of the United States. 

In view of the facts presented by the President of the United States in 
his address dehvered to the Congress in joint session on the twentieth day 
of April, nineteen hundred and fourteen, with regard to certain affronts 
and indignities committed against the United States in Mexico : Be it 

Resolved by the Senate and House of Representatives of the United States 
of America in Congress assembled, That the President is justified in the 
employment of the armed forces of the United States to enforce his demand 
for unequivocal amends for certain affronts and indignities committed 
against the United States. 

Be it further resolved, That the United States disclaims any hostility to 
the Mexican people or any purpose to make war upon Mexico." 

No further declaration by Congress was made in the premises. 

The naval occupation of Vera Cruz appears to have begun on April 21, 
1914, by virtue of orders issued by the President, and lasted until April 
30, 1914, when the occupation of Vera Cruz was transferred to the army, 
which continued it until the final evacuation on November 23, 1914 (New 
International Year Book, 1914). 

It is evident that neither before nor during the occupation of Vera 
Cruz in 1914 did the Congress of the United States declare war upon 
Mexico. 

I am of the opinion that participation by a sailor of the navy of the 
United States in the occupation of Vera Cruz was not service "in time of 
war or insurrection," as those words are used in said G. L. c. 175, § 167A, 
as amended, so as to entitle an applicant who formerly served as such a 
sailor to the exemption provided for by said G. L. c. 175, § 167A, as 
amended. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — Policy — Conversion into New Policies. 

Under G. L. c. 175, § 139, a life insurance company may convert an insur- 
ance policy into more than one new policy, at the request of the 
assured. 

Jan. 9, 1932. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir : — You have asked my opinion upon the following question 
of law : — 

"Does the provision of G. L. c. 175, § 139, that a life company may 
exchange, alter or convert any policy of life or endowment insurance for 
or into 'any policy' authorize such a company, in view of G. L. c. 4, § 6, 
cl. Fourth, to exchange, alter or convert any such policy for or into more 
than one policy?" 

G. L. c. 175, § 139, as amended, reads as follows: — 

"Any life company may, at the request of the pohcy holder, exchange, 
alter or convert any policy of life or endowment insurance issued by it 
for or into any policy conforming (a) with the laws in force when said 
first mentioned policy was issued, if the rewritten policy bear the date 
thereof, or (6) with the laws in force when said exchange, alteration or 
conversion is effected, if the rewritten policy bear a then current date; 



34 P.D. 12. 

provided, however, that if such rewritten poHcy bears the date of said 
original policy, the amount of insurance under said rewritten policy shall 
not exceed the amount of insurance under said original policy or the 
amount of insurance which the premium paid for the original policy 
would have purchased if the rewritten policy had been originally applied 
for, whichever is the greater. Nothing in section one hundred and twenty 
shall be construed to prohibit the exchange, alteration or conversion of 
policies of life or endowment insurance under this section, and sections 
one hundred and twenty-three and one hundred and thirty shall not apply 
to the issue of any policy rewritten under authority of this section." 

G. L. c. 4, § 6, cl. Fourth, provides: — 

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

Fourth, Words importing the singular number may extend and be 
applied to several persons or things, words importing the plural number 
may include the singular, and words importing the masculine gender may 
include the feminine and neuter." 

An examination of said section 139, as amended, and earlier enact- 
ments upon the same subject, as well as a consideration of general prin- 
ciples of the law of insurance, convinces me that there are no sound con- 
siderations which would make the application of the rule for statutory 
construction with regard to words ''importing the singular number," set 
forth in said G. L. c. 4, § 6, cl. Fourth, when apphed to the word "pohcy" 
wherever used in said G. L. c. 175, § 139, as amended, to denote a contract 
of insurance which replaces an earlier contract, either ''inconsistent with 
the manifest intent of the law-making body or repugnant to the context 
of" G. L. c. 175, as amended, either as regards said section 139, as amended, 
or the chapter as a whole. 

Accordingly, I am of the opinion that the words "any policy," as used 
in said section 139, as amended, with relation to a policy for which another 
is to be exchanged or converted, may extend and be applied to more than 
one policy, and I answer your question in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Auditor of the Commonwealth — Duties — Prison-made Goods. 

The Auditor of the Commonwealth is not charged with the duty of deter- 
mining whether prices at which prison-made goods are sold are in 
conformity with the wholesale prices of similar merchandise. 

Jan. 25, 1932. 
Hon. Francis X. Hurley, Auditor of the Commonwealth. 

Dear Sir: — In connection with the performance of your duty to 
audit the accounts and records of the State Prison, as to which you state 
that "it is necessary to ascertain the correctness of the computations 
purporting to show the distribution of the excess profits to the prisoners 
in accordance with the provisions of St. 1928, c. 387," and that "the size 
of the distribution depends on the amount of the 'excess profits,' so called, 
and this in turn hinges to a great extent on the selling prices set on the 



P.D. 12. 35 

merchandise, as the majority of the customers are provided by law," 
you have asked my opinion in the following language : — 

"If there is any responsibility devolving upon the Auditor of the Com- 
monwealth to determine whether or not the prices at which goods are 
offered for sale are in conformity with the wholesale prices of similar mer- 
chandise; and whether or not the Auditor is entitled to rely upon the 
figures set forth in the sales catalogue issued by the Department of Cor- 
rection." 

G. L. c. 127, § 58, provides as follows: — 

"The price of all articles and materials supplied by the prisons to the 
commonwealth, counties, cities and towns shall conform as nearly as 
may be to the wholesale market rates for similar goods manufactured 
outside of the prisons. Any difference of opinion in regard to price may 
be submitted to arbitration in the manner provided in section fifty-five." 

G. L. c. 127, § 55, reads as follows: — 

"Annually in September the commissioner shall issue to the officers in 
charge of the offices, departments and institutions named in section fifty- 
three a descriptive hst of the styles, designs and qualities of said articles 
and materials. Any difference between the prison officials and the offices, 
departments or institutions in regard to styles, designs and qualities shall 
be submitted to arbitrators, whose decision shall be final. One of said 
arbitrators shall be named on behalf of the prison by the commissioner, 
one by the principal officer of the other office, department or institution 
concerned, and one by agreement of the other two. The arbitrators 
shall be chosen from the official service, and shall receive no compensa- 
tion for performance of any duty under this section; but their actual and 
necessary expenses shall be paid by the prison or office, department or 
institution against which their award is given." 

G. L. c. 127, § 67, reads as follows: — 

"Goods manufactured in any of the institutions named in section fifty- 
one shall, with the approval of the commissioner, be sold by the warden, 
superintendent, master or keeper thereof at not less than the wholesale 
market price prevailing at the time of sale for goods of the same descrip- 
tion and quality. The proceeds of such sales shall be paid by the pur- 
chasers to the respective institutions from which the goods are delivered." 

The duty of fixing the prices of prison-made articles so that they shall 
conform as nearly as may be to the wholesale market rates for similar 
goods manufactured outside the prisons appears to rest upon certain 
designated prison officials, subject to the approval of the Commissioner of 
Correction, and further subject to correction by arbitrators who may 
be established under said sections 55 and 58, "whose decision shall be 
final." Nowhere in the statutes does there appear to have been authority 
vested in the Auditor to review the correctness of prices so fixed for the 
sale of prison-made articles. 

As I stated in an opinion to you, dated June 10, 1931 (Attorney Gen- 
eral's Report, 1931, p. 94), — 

" Inasmuch as the duties of the Auditor have been left undefined and 
unenumerated by the framers of the constitutional amendments . . ., 
he is not required to perform any duties which have not been laid upon 
him by the Legislature." 



36 P.D. 12. 

G. L. c. 11, § 12, as amended by St. 1923, c. 362, § 16, quoted at length 
in my said opinion of June 10, 1931, in effect gives to the Auditor only the 
authority to make audits, and such authority, as I stated in said opinion, 
''does not import power to make a complete and independent investiga- 
tion of conditions which might be disclosed in the course of an examination 
of accounts." 

The foregoing considerations apply to the instant matter, and I must 
advise you that there is no responsibility devolving upon the Auditor to 
determine whether or not the prices at which prison-made goods are 
offered for sale are in conformity with the wholesale prices of similar 
merchandise; and that if "the sales catalogue issued by the Department 
of Correction," to which you refer, purports to set up such prices in the 
manner indicated by G. L. c. 127, §§ 55, 58 and 67, you are entitled to 
rely upon it for the purpose of auditing prison accounts, including those 
which set forth the distribution of excess profits to prisoners. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Auditor of the Commonwealth — Duties — Teachers' Retirement Board. 

The Auditor of the Commonwealth has the duty of auditing the accounts 
of the Teachers' Retirement Board. 

Jan. 27, 1932. 
Hon. Francis X. Hurley, Auditor of the Commonwealth. 

Dear Sir: — You have asked me the following question with relation 
to auditing accounts of the Teachers' Retirement Board, in view of the 
enactment of St. 1930, c. 238: — 

"If, as a result of this legislation, the Auditor is required to audit the 
accounts of the Teachers' Retirement Board, as indicated by St. 1923, 
c. 362, § 16, or if St. 1930, c. 238, relieves him of the necessity of making 
an audit of the accounts of this Board." 

The duties of the Auditor, so far as applicable to the instant matter, 
are set forth in G. L. c. 11, § 12, as amended by St. 1923, c. 362, § 16, 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 subject 
at any time to such examination as the governor and council or the general 
court may order. Said department shall comply with any written regu- 
lations, consistent with law, relative to its duties 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. 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." 



P.D. 12. 37 

The Teachers' Retirement Board, estabhshed by G. L. c. 15, § 16, to 
manage the teachers' retirement system set forth in G. L. c. 32, as amended, 
falls within the meaning of the words "offices ... of the common- 
wealth," as used in said G. L. c. 11, § 12, as amended, and is therefore 
subject to audit by the Auditor unless, as you suggest in your letter, the 
effect of the amendment of G. L. c. 32, § 34, by St. 1930, c. 238, is such as 
to render it no longer subject to an audit. 

The amendment of G. L. c. 32, § 34, by St. 1930, c. 238, added "the 
retirement system for teachers" to the other retirement systems which 
had previously been mentioned in said G. L. c. 32, § 34, as subject to con- 
trol and oversight by the Commissioner of Insurance. 

Said G. L. c. 32, § 34, as so amended, reads: — 

"The commissioner of insurance shall prescribe for the state retirement 
system, the retirement system for teachers and for each county, city and 
town retirement system one or more mortalitj^ tables, and fix the rates of 
interest to be used in connection therewith, and rtiay later modify such 
tables or prescribe other tables to represent more accurately the expense 
of such retirement systems, or may change the rates of interest and deter- 
mine the application of such changes. He shall also prescribe and super- 
vise methods of bookkeeping of their retirement associations. 

The commissioner or his agent shall at least once every year thoroughly 
inspect and examine the affairs of each such retirement association to 
ascertain its financial condition, its ability to fulfil its obligations, whether 
all the parties in interest have complied with the laws applicable thereto, 
and whether the transactions of each board of retirement have been in 
accordance with the rights and equities of those in interest. Each such 
retirement system sh^ll be credited, in the account of its financial condi- 
tion, with its investments having fixed maturities upon which the interest 
is not in default at amortized values, and its other investments at a 
reasonable valuation. 

For the purposes aforesaid, the commissioner or his agent shall have 
access to all the securities, books and papers of such retirement systems, 
and may summon and administer oath to and examine any person rela- 
tive to the financial affairs, transactions and condition of the retirement 
system. The commissioner shall preserve in a permanent form a full 
record of the proceedings at such examination and the results thereof. 
Upon the completion of such examination, verification and valuation, the 
commissioner shall make a report in writing of his findings to the board, 
and shall send a copy thereof to the governor and council, the county 
commissioners, the city council or the selectmen, as the case may be." 

The provisions of said section 34, as amended, do not specifically deprive 
the Auditor of the authority which he has under G. L. c. 11, § 12, as 
amended, "to make a careful audit of the accounts" of said Board, nor 
do such provisions deprive him of such authority by implication. 

The authority given to the Commissioner of Insurance by said section 
34, as amended, over the activities of the teachers' retirement system, 
though broad in scope, does not require him to make an audit of the 
accounts of the said Board, as the word "audit" is commonly under- 
stood. The Commissioner's duties of inspection and examination required 
by said section 34 might be carried out, within the meaning of said sec- 
tion 34, without a careful audit of the accounts of the said Board, as the 
word "audit" is ordinarily understood. St. 1910, c. 619, § 8, originally 
provided, in a form substantially the same as now employed in said sec- 



38 P.D. 12. 

tion 34, for the supervision and inspection of the financial condition of 
various retirement systems, and this enactment was continued in force 
by subsequent statutes. It would seem that if the Legislature had in- 
tended to exclude the accounts of the boards managing the retirement 
systems mentioned in G. L. c. 32, § 34, to which the teachers' retirement 
system has since been added, from being subject to audit by the Auditor 
of the Commonwealth, it would have so stated in the amendment of 
G. L. c. 11, § 12, by St. 1923, c. 362, § 16, in which it restated the duties 
of the Auditor, and specifically excluded certain departmental accounts 
from his power to audit. 

I am of the opinion that the Auditor is not relieved by the 1930 amend- 
ment of G. L. c. 32, § 34, from the duty of making an audit of the accounts 
of the Teachers' Retirement Board. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Sealers of Weights and Measures — Tenure. 

A sealer of weights and measures appointed in a town having a popula- 
tion of over 10,000 retains his status as under civil service even if 
the population falls below such figure after his appointment but 
during his incumbency. 

Jan. 28, 1932. 
Hon. Paul E. Tierney, Commissioner of Civil Service. 

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

"Under G. L. c. 31, § 4, all sealers of weights and measures in towns 
of over 10,000 inhabitants are included within the classified civil service 
by the rules of the Civil Service Commissioners. Therefore, in the town 
of Palmer, which had a population of over 10,000 by the census of 1925, 
the sealer was classified under civil service. By the United States census 
of 1930 Palmer dropped to 9,577 inhabitants, and is, accordingly, now a 
town of under 10,000 inhabitants. The question arises: Does the sealer 
in a town having a population of over 10,000 lose his civil service rating 
when the population of the town drops to less than 10,000?" 

G. L. c. 31, § 4, as applicable to sealers of weights and measures, reads, 
in part, as follows : — 

"The following, among others, shall be included within the classified 
civil service by rules of the board : 

All sealers and deputy sealers of weights and measures in towns of over 
ten thousand inhabitants and in cities whether such officers are heads of 
principal departments or not, and also the inspectors of standards in 
the service of the commonwealth; 

It was not, in my opinion, the intent of the Legislature, as expressed 
in said section 4 and as read in connection with the whole of said chapter 
31, relative to civil service, to provide that an incumbent who was ap- 
pointed to the office of sealer of weights and measures after the enactment 
of statutes which granted to him the protection of the civil service laws, 
in a town which had a population of over 10,000 at the time of such ap- 
pointment, should lose such protection while he held such office, irrespective 
of any change in the population. 



P.D. 12. 39 

If, however, a vacancy occurs in the office of sealer of weights and 
measures of a town, and it then appears from the latest census that the 
population of such town has fallen below the 10,000 which it previously 
had, the position is not then to be treated as governed by the civil service 
laws, and the appointment of a new incumbent and his tenure of office 
will not be subject to the provisions of such laws, or the rules and regula- 
tions made thereunder. 

Yours very truly, 

Joseph E. Waener, Attorney General. 

Department of Labor and Industries — Minors — Dangerous Trades. 

Authority of the Department of Labor and Industries to determine that 
trades are sufficiently dangerous to minors under sixteen or eighteen 
to justify their exclusion therefrom, defined. 

Jan. 28, 1932. 

Hon. Edwin S. Smith, Commissioner of Labor and Industries. 

Dear Sir : — You have asked my opinion upon several questions 
relative to the authority of your department to determine that trades, 
processes of manufacture and occupations are sufficiently dangerous to 
minors under sixteen or eighteen to justify their exclusion from such 
trades, processes and occupations. 

There are certain general considerations based upon the statute law 
which, if observed, will indicate the answers to your various questions 
without the necessity of my replying to each of them individually. 

Your department's authority to make the determinations in question 
is derived from, and is limited in its scope by, the provisions of G. L. 
c. 149, § 63, which reads: — 

"The department may, after a hearing duly held, determine whether 
or not any particular trade, process of manufacture or occupation, in which 
the employment of minors under the age of sixteen or eighteen is not 
forbidden by law, or any particular method of carrying on such trade, 
process of manufacture or occupation, is sufficiently dangerous or is suf- 
ficiently injurious to the health or morals of minors under sixteen or 
eighteen to justify their exclusion therefrom. No minor under sixteen 
or eighteen shall be employed or permitted to work in any trade, process 
or occupation thus determined to be dangerous or injurious to such minors, 
respectively." 

In certain particular trades, processes of manufacture and occupations 
the employment of minors under sixteen has been absolutely prohibited 
by law, and the prohibition appears to extend to every method of carry- 
ing on such trades, processes and occupations. These are set forth in 
G. L. c. 149, § 61, lines 1-24. Since the Legislature has so completely dealt 
with said trades, processes and occupations, your department has no 
authority to make determinations with regard to them nor to any par- 
ticular method of carrying them on, either as to minors under sixteen or 
eighteen. 

As to the employment of minors under sixteen in connection with 
freight elevators, the Legislature, in G. L. c. 149, § 61, lines 24-27, has 
not attempted to make an absolute prohibition with respect to the em- 
ployment of minors under sixteen, extending to every method of working 
upon freight elevators, but has confined itself to prohibiting the employ- 



40 P.D. 12. 

merit of such minors in three specific forms of work only, connected with 
freight elevators. The language used is as follows: — 

"No such minor shall be employed or permitted to operate, clean or 
repair a freight elevator.'^ 

Since the Legislature does not purport in this enactment to deal with 
every method of working on freight elevators, your department has 
authority to make determinations with relation to other specific methods 
of work or employment on freight elevators, if there be any such, for 
minors under sixteen, but its determinations in this respect must be 
directed to particular, designated methods of work or employment not 
mentioned in the statute. 

In like manner the authority of your department to make similar 
determinations with regard to the trades, processes or occupations in 
which minors under eighteen are employed, or the methods of carrying 
on such trades, processes or occupations, is limited to those trades, proc- 
esses or occupations which in their entirety have not already been de- 
clared by the Legislature to be forbidden to minors under either sixteen 
or eighteen for employment. These are enumerated in G. L. c. 149, § 62. 

If a trade, process or occupation in its entirety has been forbidden by 
the Legislature for the employment of minors of either of the two classes 
mentioned in said sections 61 and 62, namely, (1) minors under sixteen, 
or (2) minors under eighteen, such employment has been "forbidden by 
law," within the meaning of those words as used in said section 63, and 
your department has no authority to make detemiinations with regard 
thereto. If a trade, process or occupation has been forbidden by the 
terms of said section 61 for the employment of a minor under sixteen, 
that indicates a legislative intent that a minor above the age of sixteen 
is permitted to be employed therein — an intention which may not be 
destroyed by departmental action. 

No authority is given to your department to make determinations 
with regard to employments dangerous to minors except in so far as such 
employment relates to two definite classes of minors, that is to say, (1) 
those under sixteen, and (2) those under eighteen. The department has 
no authority to carve out of either one of these classes, created by the 
Legislature, any new class established on an age basis different from 
those age bases, sixteen and eighteen, specified in the statute, for particular 
determination as to employment hazards. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Eminent Domain — Public Utility Com-pany — Mill Act — Commonwealth. 

A public utility company has no right to take nor to flood land leased 
to the Commonwealth and on which the Commonwealth has an option 
to purchase. 

Feb. 2, 1932. 

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

Dear Sir: — You request my opinion "as to whether or not a public 
utility company would have the right to take hy eminent domain a tract 
of land which had been leased to the Commonwealth with the option 
of ultimate purchase." 

It is a settled principle of law in this Commonwealth that land ap- 
propriated to one public use cannot be diverted to another public use 



P.D. 12. 41 

inconsistent therewith without plain legislation to that end. Higginson 
V. Treasurer and School House Commissioners oj Boston, 212 Mass. 583; 
By field v. Newton, 247 Mass. 46. 

Your letter, however, sets forth, as to the possibihties which you have 
in mind, that the power company may erect a dam on its own land and 
thereby flood land farther up the stream, which is land leased to the 
Commonwealth and on which the Commonwealth has an option to pur- 
chase. It has been decided in this Commonwealth that this right to 
erect a dam and flood land farther up the stream is in effect by virtue of 
the Mill Act (G. L. c. 253), and not by virtue of a power under eminent 
domain. Otis Co. v. Ludlow Mfg. Co., 186 Mass. 89; S. C, 201 U. S. 140; 
Duncan v. New England Power Co., 225 Mass. 155; Dickinson v. New 
England Power Co., 257 Mass. 108. The Mill Act, in much the same form 
as it is now, has long been the law in this Commonwealth. Its history 
and development are traced in Otis Co. v. Ludlow Mfg. Co., 201 U. S. 
140. In the early industrial development of the Commonwealth the 
flooding caused by the erection of dams sometimes interfered with the 
use of the highways. In Commonwealth v. Stevens, 10 Pick. 247, the 
court, when discussing public rights that were interfered with by flooding, 
said : — 

"The mischief intended to be guarded against was the expense and 
vexation arising from a multitude of actions for damages to be brought 
by private owners of land. All the detailed provisions of the acts, go to 
show that such was the intent of the framers; and there being no provi- 
sion made for an indemnity to the public, it seems manifest, that no 
encroachment on the public rights was intended to be sanctioned." 

See also Inhabitants of Andover v. Sutton, 12 Met. 182, 186. 

Because of this decision there were later enacted provisions which now 
appear as sections 33 to 38 of G. L. c. 253, by which a dam may be erected 
provided the highway is raised. These provisions are designed to provide 
for the damage which would be caused to the public by interference with 
the use of the highway from flooding. Cheshire v. Adams & Cheshire 
Reservoir Co., 119 Mass. 356. 

While I can find no decision directly on this question in this Common- 
wealth, it seems to me, from the reasoning in the cases, that there is no 
right under the law to flood lands belonging to the public and which are 
devoted to public use. Commonwealth y. Stevens, 10 Pick. 247; Andover v. 
Sutton, 12 Met. 182; Howes v. Crush, 131 Mass. 207; Proprietors of Mills 
V. Commonwealth, 164 Mass. 227; Boston & Maine R.R. v. Hunt, 210 
Mass. 128. 

It is my opinion, therefore, that a public utility company would not 
have the right to flood land leased to the Commonwealth, and on which 
the Commonwealth has an option to purchase, without first securing 
permission by legislative act to flood such land. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



42 P.D. 12. 

Retirement — Employees of the Commonwealth — Superintendent of the 

Massachusetts Nautical School. 
The superintendent of the Massachusetts Nautical School is required to 
retire at the age of seventy. ' 

Feb. 17, 1932. 
Dr. Payson Smith, Commissioner of Education. 

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

"Captain Armistead Rust, USN, Retired, commanding the School- 
ship USS 'Nantucket' and superintendent of the Massachusetts Nautical 
School, will be seventy years of age on July 12, 1932. He receives a salary 
from the State of Massachusetts of $3,500 a year, and has been in the 
employ of the State and in charge of the schoolship since July, 1919. His 
services have been unifonnly and thoroughly satisfactory. He is a cap- 
tain on the retired list of the United States Navy and served through the 
Spanish-American War and the World War. He has not contributed to, 
and has never been connected with, the Retirement Association of the 
State. The physical and mental condition of Captain Rust is excellent. 

I would respectfully request an opinion as to whether Captain Rust 
can be continued in employment by the State after July 12, 1932, on which 
date the schoolship will be abroad on its summer cruise." 

The present superintendent of the Massachusetts Nautical School, 
appointed under the provisions of G. L. c. 74, § 49, is, in my opinion, one 
of the employees of the Commonwealth, as the word "employees" is 
defined in G. L. c. 32, § 1, as amended. 

It has been suggested that the present incumbent of the office is not 
one of such employees because he is, as stated in your communication, 
"a captain on the retired Hst of the United States Navy." The fact that 
he is a captain on such retired list in no way affects his status as an em- 
ployee of the Commonwealth. If he were an officer in the active service 
of the United States, assigned for duty under the direction of officials of 
the Commonwealth, his status would not be that of an employee; but as 
to a retired officer the case is otherwise. 

Officers upon the retired list of the navy, while subject to being recalled 
into active service of the United States in time of war or national emer- 
gency, are not subject to such recall in time of peace, without their consent. 
U. S. Comp. Stat., Title XV, § 2653C. Unless actually brought back into 
the active service of the United States, such retired officers are as much 
in civil life as any other person, as far as regards their entering the service 
of the Commonwealth. If such retired officers accept a position in the 
service of the State, they are subject to all the provisions of law governing 
such position. 

I am informed that the principal duty of said superintendent consists 
in the command of the USS "Nantucket." This vessel is a naval craft, 
and is furnished to the Commonwealth, as I am advised, by the Federal 
government by virtue of an act of Congress (36 Stat, at L., pt. 1, 1353; 
March 4, 1911), for use in connection with said Nautical School. By the 
terms of said act the President of the United States may detail officers 
on the active list of the navy to serve as superintendent or instructors in 
such schools, but, although such assignments have at times in the past 
been made, no such officers are now so assigned, as I am advised. It is 
also true that when the said superintendent acts as commander of the 
said vessel he owes certain duties, with relation to the same and to its 
equipment, to the Federal government, as the owner of such vessel; and 



P.D. 12. 43 

in connection with such duties may at certain times be subject to orders 
of the Federal authorities. Nevertheless, these considerations do not 
alter the fact that as such superintendent he is in the service of the Com- 
monwealth and is paid by it alone. 

It appears from your communication that the present incumbent of the 
superintendency will be seventy years of age on July 12, 1932, and that 
he was over fifty-five when he entered the service of the Commonwealth. 

G. L. c. 32, § 2, as amended, establishing the State Retirement Association, 
provides, in that portion applicable to the said incumbent, as follows : — 

"Except as provided in paragraph (3) all other persons who enter the 
service of the commonwealth hereafter shall, upon completing ninety 
days of service, become thereby members of the association, except that 
such persons over fifty-five shall not be allowed to become members of the 
association, and no such person shall remain in the service of the common- 
wealth after reaching the age of seventy." 

There are no provisions in paragraph (3), referred to in said portion of 
section 2, which are applicable to the said incumbent. 

I am informed that in 1918 the Nautical School had as a superintendent 
a person over the age of seventy. The propriety of that situation was not 
apparently questioned by any one at that time, but the occurrence estab- 
lishes no proper precedent and cannot have the effect of altering the effect 
of the law applicable to the instant matter. 

It follows that the said incumbent, being a person who was over fifty- 
five upon entering the service of the Commonwealth, although not eligible 
to membership in the Retirement Association, must, nevertheless, hke all 
the persons referred to in the quoted sentence of said section 2, to which 
class of persons the said incumbent belongs, leave the service of the Com- 
monwealth "after reaching the age of seventy." 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Assistant Deputy at the Massachusetts Reformatory — Ap- 
pointment. 
The appointment of an assistant deputy at the Massachusetts Reforma- 
tory is subject to the applicable provisions of the civil service law. 

Feb. 19, 1932. 
Dr. A. W, Stearns, Commissioner of Correction. 

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

"I beg to refer you to G. L. c. 125, § 6, and respectfully request an opin- 
ion as to whether or not the superintendent of the Massachusetts Reform- 
atory has authority to make an appointment to the position of assistant 
deputy." 

I answer you to the effect that, in my opinion, the superintendent of 
the Massachusetts Reformatory has the right to designate for temporary 
service as "assistant deputy" one of the persons who are officers of that 
institution, as the word "officers" is employed in G. L. c. 125, subject, 
however, to such provisions of the civil service law (G. L. c. 31), and rules 
made in connection therewith, as are applicable. 

G. L. c. 125, § 6, as amended by St. 1931, c. 301, § 94, reads: — 

"The warden of the state prison or the superintendent of the Massa- 
chusetts reformatory or reformatory for women may designate for tempo- 



44 P.D. 12. 

rary service one of the officers of the institution as assistant deputy. He 
shall perform duties assigned by the warden or superintendent, and in 
the absence of the deputy warden or deputy superintendent shall perform 
the duties of that officer." 

G. L. c. 125, § 4, reads: — 

''All subordinate officers and employees in the several institutions shall 
be appointed by the warden or superintendent thereof and hold office 
during the pleasure of said warden or superintendent. Appointments in 
the prison camp and hospital and state farm shall be subject to the ap- 
proval of the commissioner." 

It is to be specially noted in connection with G. L. c. 125, § 4, that G. L. 
c. 31, § 4, as amended, the civil service law, provides: — 

"The following, among others, shall be included within the classified 
civil service by rules of the board: 

Instructors in the state prison and the Massachusetts reformatory, and 
all other employees in said institutions having prisoners under their 
charge; 

In my opinion, the position of assistant deputy at the Massachusetts 
Reformatory, designated for temporary service under G. L. c. 125, § 6, 
as amended, is not a public office but rather an employment, and the in- 
cumbent is not a public officer but one of the "employees" of said reform- 
atory, in the sense in which the word "employees" is used in said G. L. 
0. 31, § 4, as amended. It follows that such assistant deputy, as an em- 
ployee, is within one of the classes of persons specifically included within 
the classified civil service, since he does not fall within any of the excep- 
tions to the general provisions of said G. L. c. 31, § 4, as amended, which 
are set forth in other provisions of said chapter 31. 

The position of said assistant deputy, as provided for in the statute, 
appears to lack many of the attributes which have been held to go toward 
making the holder of a governmental place a public officer as distinguished 
from a pubhc employee. The tenure of the position is temporary, lacking 
in any degree of permanence; the duties, in part at least, are such as 
may be assigned to the holder by his superior officer; the holder receives 
no compensation; the holder is the incumbent of another position which 
necessarily is that of a subordinate reformatory official, the importance, 
independence and dignity of which latter place do not appear to be such 
as to bear the indications of public office but rather of public employment. 

Numerous criteria are resorted to in determining whether a person is 
an officer or a public employee, although no single one is necessarily con- 
clusive. The nature of the duties, the method apparently presented for 
their performance, the end to be attained, the character of the power to 
be conferred, and the whole surroundings of the position are all to be con- 
sidered in arriving at a determination. 

All these considerations compel me to the opinion that the incumbent 
of the position under consideration is an "employee," whose appointment 
by you is governed by the civil service rules which may apply to a position 
of the somewhat unusual character of this one. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 45 

Civil Service — Labor Service — Failure to register. 

Failure of an appointee in the labor service of the Commonwealth to 
register, if caused by explicit negativing of the requirement of regis- 
tration by the Department of Civil Service, does not defeat the pro- 
tection of the civil service laws applicable to such appointee. 

Feb. 25, 1932. 
Hon. Paul E. Tierney, Commissioner of Civil Service. 
Dear Sir : — You have written me as follows : — 

"Civil Service Rule 35, paragraph 4, which pertains to the labor divi- 
sion, provides as follows: — 

'Whenever the Commissioner shall be unable to fill a requisition, he 
may authorize (under the statute) the employing officer to make the 
selection. The persons so selected shall register before employment.' 

On March 17, 1923, under the authority of the then Commissioner of 
Civil Service, letters concerning authorization to appoint certain persons 
in the labor service were sent out to the various appointing powers in the 
Commonwealth, . . . 

The question now arises: Are these persons holding office or employ- 
ment in the classified public service of the Commonwealth, and entitled 
to the rights and privileges of the provisions of G. L. c. 31, and amendments 
thereto?" 

You annexed to your communication a copy of the letter of March 17, 
1923, sent "under the authority of the then Commissioner of Civil Service" 
to various appointing authorities in the Commonwealth. The letter was 
signed by the Director of the Labor Bureau, and reads as follows: — 

"Inasmuch as there appear to be no persons eligible for certain posi- 
tions in your department, you are hereby authorized to appoint any per- 
son or persons at your discretion to fill vacancies in all Labor Service 
positions in your department, the salary of which is not more than 
This authority is to be continued in force until further notice from this 
Bureau, 

Under chapter 31 of the General Laws preference in appointment should 
be given to veterans as defined therein if any can be found qualified for 
the work and willing to accept. 

If non-citizens are appointed, their employment can be allowed only 
until such time as an eligible fist of citizens is estabhshed, when, in ac- 
cordance with the law, names must be certified from that list and non- 
citizens must be discharged. 

All appointments made under authority of this letter must be reported 
to this Bureau within twenty-four hours from date of same, the report to 
include date of appointment, name, address, date of birth, and whether or 
not the appointee is a citizen of the United States, and a veteran as de- 
fined by chapter 31 of the General Laws, together with the position to 
which he or she is appointed and the salary. 

This authority cancels anj^ and all previous letters of authority given 
to your department for Labor Service appointment. Appointees need 
not register with this Bureau." 

The case of each person holding employment in the labor service of 
the Commonwealth, to which he or she was appointed by one of the 



46 P.D. 12. 

appointing officials who acted in relation thereto b}^ reason of his receipt 
of the letter of March 17, 1923, must, of course, be dealt with as affected 
by all the particular facts and circumstances surrounding it. No general 
rule can be laid down which will necessarily be determinative of all cases 
alike. What these facts and circumstances which affect individual cases 
may be, I, of course, have no knowledge at the present moment. 

For your guidance, however, let me state that I am of the opinion that 
in any case where it appears that a person was appointed, in reliance upon 
such letter, to a position in the labor sei'vice by one of the appointing 
authorities to whom the letter of March 17, 1923, was addressed, the 
person so appointed cannot be said to be outside the classified public 
service and not entitled to the protection given employees by G. L. c. 31, 
merely because such person did not register with your department (in 
view of the explicit statement in said letter negativing the necessity for 
registration), nor because the appointing authority did not give the 
information requested in said letter to your department, nor because 
such person was not certified by your department for the employment 
given him. 

As was said by the Supreme Judicial Court in Munds v. Superintendent 
of Streets of New Bedford, 264 Mass. 242, 245: — 

"The purpose of the civil service law to protect employees in the labor 
service . . . should not be defeated by setting up an innocent omission 
of the employee brought about by the authority which is seeking his 
discharge." 

Nor, in my opinion, should it be defeated by an omission on the part 
of the appointing authority to report data required by your department, 
nor by a failure on the part of your department to certify appointment 
when made by an appointing authority acting under the terms of said 
letter of March 17, 1923. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Norfolk State Prison Colony — Officers and Employees. 

The officers and employees of the Norfolk State Prison Colony are not 
under the civil service law. 

March 4, 1932. 

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

Dear Sir : — You request my opinion as to whether or not subordi- 
nate officers and employees of the Norfolk State Prison Colony may be 
classified under civil service. 

The State Prison Colony was established by St. 1927, c. 289. It is 
plain from a reading of the act that the institution thereby created is 
entirely separate and distinct from the State Prison. The provision 
regarding the appointment and tenure of the officers and employees of 
the institution is found in section 4 of St. 1927, c. 289, which is as follows: — 

"All subordinate officers and employees in the several institutions 
shall be appointed by the warden or superintendent thereof and hold 
office during the pleasure of said warden or superintendent. Appoint- 
ments in the prison camp and hospital, state prison colony and state 
farm shall be subject to the approval of the commissioner." 



P.D. 12. 47 

The force and effect of the provision "and hold office during the pleas- 
ure of" have been considered and discussed by myself and my prede- 
cessors in a number of opinions. These opinions are reviewed at con- 
siderable length in an opinion which I gave to your predecessor in office, 
dated December 18, 1929 (VIII Op. Atty. Gen. 643). These opinions 
have repeatedly held that such a provision is inconsistent with civil serv- 
ice regulations. Therefore, unless there are other statutes which over- 
come the effect of such a provision, civil service regulations do not apply 
to officers or employees who hold office during the pleasure of the appoint- 
ing officer. 

While said section 4 provides for the appointment and tenure of sub- 
ordinate officers and employees of certain penal institutions, in addition to 
the State Prison Colony, the section must be read in connection with 
G. L. c. 31, § 4, as amended by St. 1924, c. 197, and as finally amended by 
St. 1930, c. 34. The section provides, in part, as follows: — 

"The following, among others, shall be included within the classified 
civil service by rules of the board : 

Instructors in the state prison and the Massachusetts reformatory, 
and all other employees in said institutions having prisoners under their 
charge ; 

This section definitely places certain employees of the State Prison 
and the Massachusetts Reformatory under civil service. I believe that, 
carrying out the provisions of this section, Civil Service Rule 4 includes 
these employees within the classification therein specified, class 17 of 
said Rule 4 being described as follows: — 

"Watchmen, gatemen, and guards in the public parks and ferries; 
turnkeys, watchmen, and all other persons doing police duty in the parks, 
public grounds, prisons, houses of detention, reformatories, and in all 
other pubhc institutions, places and departments not otherwise included 
under these rules." 

Since there is no statutory provision that the officers or employees of 
the State Prison Colony shall be included within the classified civil service, 
as in the case of the instructors and certain employees at the State Prison 
and the Massachusetts Reformatory, the question whether or not they 
may be so included must be controlled entirely by the words "and hold 
office during the pleasure of," as used in said section 4 of St, 1927, c. 289. 

Following the opinion cited earlier, I am therefore of opinion that the 
officers and employees of the Norfolk State Prison Colony may not be 
included within the classified civil service by rules of the Civil Service 
Commissioners. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



48 P.D. 12 

Department of Conservation — Forest Wardens — Fines — Expenditures 
under Supervision of Selectmen. 

Forest wardens have no authority to collect fines or expenses incurred as 
a result of fires illegally set; and all fines imposed by the courts must 
be spent by the wardens, under the supervision of the selectmen, 
for the purposes set forth in G. L. c. 48, § 24. 

March 7, 1932. 
Hon. W. A. L. Bazeley, Commissioner of Conservation. 

Dear Sir : — I am in receipt from you of the following letter : — 

"I desire an opinion on the provisions of section 24 of G. L. c. 48. That 
section provides for the receipt and expenditure of fines received under 
sections 11 and 13 of chapter 48 and under section 9 of G. L. c. 266. 

We have a large number of cases where a person violates section 13, 
in the setting and maintaining of a fire without first procuring a permit 
from the forest warden, and in many cases the fire has gone beyond the 
control of the person causing it, thereby requiring the services of the 
forest warden and hio men and causing the town considerable expense to 
extinguish it. Has the forest warden a right to accept from such person 
the actual expense caused the town in the extinguishment of such fire, or 
should the person be taken into court and a fine imposed? 

G. L. c. 48, § 24, further provides for the expenditure of such fines by 
the forest warden and under the supervision of the selectmen. Have the 
selectmen a right to reappropriate and expend through' the forest warden 
such funds after they have been turned over to the town treasurer and 
become a part of the town receipts?" 

G. L. c. 48, §§ 11 and 13, as amended, set forth in their essence penal 
enactments providing fines for the performance of, or failure to perform, 
certain acts in connection with fires. Such fines can only be imposed by 
courts of competent jurisdiction, after a trial upon complaints duly filed. 
No forest warden, himself, has any authority whatsoever to ask for any 
sum of money, nor to accept such, from any person who has committed 
any offense under said sections. 

The applicable portion of G. L. c. 48, § 24, as amended, reads as 
follows : — 

"Money appropriated by a town under section eleven of chapter forty, 
for the prevention of forest fires, and all fines received under sections 
eleven, thirteen and twenty-six of this chapter and section nine of chap- 
ter two hundred and sixty-six shall be expended by the forest warden, 
under the supervision of the selectmen, in trimming brush out of wood 
roads, in preparing and preserving suitable lines for back fires, or in other 
ways adapted to prevent or check the spread of fire; or such town may 
expend any portion of such money in taking by eminent domain such 
woodland as the selectmen, upon recommendation of the forest warden, 
consider expedient to prevent forest fires. . . ." 

Under the provisions of this section no forest warden has authority to 
pay over any of the moneys referred to in said section 24 except under 
the supervision of the selectmen of a town and for the specific purposes 
named in said section 24. He has no right to give any of such moneys to 
the local operators of a telephone exchange, as, it is indicated by a com- 
munication which you have laid before me, one forest warden has done. 



P.D. 12. 49 

All moneys appropriated by a town, under G. L. c. 40, § 11, for the 
prevention of forest fires, and money paid in to the town treasurer by 
the clerk of a court from fines received by him, are required, by G. L. 
c. 48, § 24, to be expended by the forest warden, under the supervision of 
the selectmen of such town, for the purposes designated in said section 
24; and it is the duty of the selectmen to see that all such moneys re- 
ceived by the town treasurer are available for such expenditure by the 
forest warden. 

The foregoing statements of the law cover the subject matter of all 
the questions contained in your letter, and it is not necessary for me to 
answer them severally. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Trust Company — Savings Department — Borrowing — Pledging 

Securities. 

A trust company has authority to borrow money in its savings depart- 
ment and to pledge as security the assets of such department, if 
the loan is to be at all times segregated for the payment of the de- 
positors in the savings department. 

March 9, 1932. 
Hon. Arthur Guy, Commissioner of Banks. 

Dear Sir : — You have asked my opinion upon the following question 
of law : — 

"Has a trust company chartered under the provisions of G. L. c. 172, 
authority to borrow money in its savings department and to pledge as 
security therefor the assets of the savings department?" 

In view of the fact that you have certain duties in connection with 
any bank or trust company, which duties are described in G. L. c. 167, 
§ 5, as follows: — 

"If, in the opinion of the commissioner, a bank or its officers or trustees 
have violated any law relative thereto, he may forthwith report such 
violation to the attorney general, who shall forthwith, in behalf of the 
commonwealth, institute a prosecution therefor. If, in the opinion of the 
commissioner, such bank is conducting any part of its business in an 
unsafe or unauthorized manner, he shall direct in writing that such 
unsafe or unauthorized practice shall be discontinued; and if any such 
bank refuses or neglects to comply with any such direction of the com- 
missioner, or if, in the opinion of the commissioner, a trustee or officer of 
such bank has abused his trust, or has used his official position in a man- 
ner contrary to the interests of such bank or its depositors, or has been 
negligent in the performance of his duties, the commissioner may, in 
case of a savings bank, forthwith report the facts to the attorney general, 
who may, after granting a hearing to said savings bank, trustee or officer, 
institute proceedings in the supreme judicial court, which shall have 
jurisdiction in equity of such proceedings, for the removal of one or more 
of the trustees or officers, or of such other proceedings as the case may 
require; or the commissioner may, in case of any bank, after giving a 
hearing to the directors or trustees thereof, either report to the share- 
holders thereof, or, with the written consent of a board composed of the 
state treasurer, the attorney general and the commissioner of corpora- 



50 P.D. 12. 

tions and taxation, publish such facts relative thereto as in his opinion 
the public interest may require." — 

and inasmuch as you advise me that action such as is outlined in your 
question is contemplated at the present time by a trust company, it would 
seem that an answer to your question will presently be necessary to guide 
you in the performance of the duties referred to. This being so, I do not 
regard your question as merely hypothetical, but one that is addressed 
to the ascertainment of my opinion upon a question of law, the answer 
to which will enable you to perform your said duties in a proper manner. 
I answer your question, therefore, for the purpose of guiding you in the 
performance of such duties. 

It is to be noted that no provision appears in the statutes which specifi- 
cally empowers a trust company "to borrow money in its savings depart- 
ment and to pledge as security therefor the assets of the savings depart- 
ment," as the quoted words are used in your question. Nevertheless, 
G. L. c. 172, § 6, provides for the formation of trust companies as cor- 
porations, "with all the powers and privileges and subject to all the duties, 
restrictions and liabilities set forth in all general laws relating" to cor- 
porations. G. L. c. 156, § 4, subdivision (d), confers upon corporations 
the power "to make contracts, incur liabilities and borrow money on 
its credit and for its use." 

There is no specific provision of the statutes which forbids a trust com- 
pany to borrow money and to pledge in connection therewith, in the 
manner described in your letter, assets of the savings department. Savings 
banks, which in their nature resemble in many respects the savings de- 
partments of trust companies, are specifically authorized by G. L. c. 168, 
§ 3, to borrow money and pledge assets. Said section 3 provides: — 

"If necessary to pay its depositors, such corporation may, by vote of 
its board of investment, borrow money, and may pledge, as security 
therefor, its bonds, notes or other securities. A copy of the vote of the 
board of investment shall be sent forthwith to the commissioner." 

Savings banks are not incorporated under the provisions of G. L. c. 156, 
as trust companies may be by virtue of G. L. c. 172, § 6, and therefore do 
not derive power to borrow and pledge from any of the provisions of 
G. L. c. 156, as do trust companies. It was therefore necessary, if it was 
the intent of the Legislature that savings banks were to be permitted to 
borrow money and to pledge securities, to manifest the legislative intent 
by a special enactment, which it did in the measure now incorporated 
in the General Laws as chapter 168, section 3. The enactment of said 
section 3 is an expression of a legislative determination that borrowing 
upon securities held for the benefit of depositors, such as might be expected 
to use a savings bank, is a proper proceeding. For what it is worth, such 
determination is not without some effect in construing powers vested in 
a trust company with relation to borrowing upon securities held for the 
sole benefit of depositors in a savings department, who in many obvious 
respects may well be thought to resemble the kind of depositors using 
savings banks; both sets of depositors being persons whose deposits are 
safeguarded by many stringent statutory provisions not applicable to the 
deposits made in commercial banking institutions or in purely commercial 
departments of banks and trust companies. 

The operation of a savings department of a trust company is regulated 
by the terms of G. L. c. 172, §§ 60-72. No express authority to borrow 



P.D. 12. 51 

for, or to pledge securities of, a savings department, nor any express denial 
of such authority, is set forth in said sections, and no expression of a 
legislative intent with relation to any such implied authority, or to any 
implied prohibition of such actions, is to be found therein unless it hes in 
section 62, which reads: — 

"Such deposits and the investments or loans thereof shall be appro- 
priated solely to the security and payment of such deposits, shall not be 
mingled with the investments of the capital stock or other money or prop- 
erty belonging to or controlled by such corporation, or be liable for the 
debts or obligations thereof until after the deposits in said savings de- 
partment have been paid in full. The accounts and transactions of said 
savings department shall be kept separate and distinct from the general 
business of the corporation." 

"The assets of the savings department," to which you refer in your 
question as being the subject of pledge, I assume to be bonds, stocks or 
notes in which deposits made in the savings department of a trust com- 
pany have been invested, under the provisions of G. L. c. 172, § 61, and 
which are referred to in the phrase in said section 62 as "such deposits 
and the investments or loans thereof." 

No special authority to borrow upon the pledge of the said bonds, 
stocks or notes can fairly be implied from the provisions of said section 62. 
But under the general power given to a corporation by G. L. c. 156, § 4, 
subdivision (d), to "incur liabiHties and borrow money on its credit and 
for its use," I am of the opinion that such authority to borrow upon the 
pledge of said bonds, stocks or notes in which the monej^ in the savings 
bank department has been invested, for the use and benefit of the depos- 
itors of said department alone, is vested in the proper officers of the trust 
company, unless it can be said that section 62 itself contains an implied 
denial or withholding of such authority. The general power to borrow 
on credit, which carries with it the power to pledge securities, embraces 
the lesser power to borrow for, and pledge securities of, the savings 
department. 

The possibility of such an implied denial or withholding of authority 
by the terms of section 62 is suggested by the wording of the section in 
the following regard : — 

"Such deposits and the investments or loans thereof . . . shall not 
be mingled with the investments ... or other money belonging to or 
controlled by such corporation, or he liable for the debts or obligations 
thereof until after the deposits in said savings department have been paid in 
full" 

In my opinion, the foregoing words, as used in said section 62, do not 
by implication prohibit the borrowing of money upon the pledge of se- 
curities which are investments of the moneys deposited in the savings 
department of a trust company. The words merely forbid the application 
of the said securities or their proceeds to any purpose, except the pay- 
ment of deposits in the savings department, until after such deposits 
have all been paid in full. The intent of the Legislature, as expressed in 
said words, was to forbid the allocation of any part of the investments or 
proceeds thereof, derived from moneys deposited in the savings depart- 
ment, to the payment of any general creditors of the company, or of any 
of the depositors of the commercial department. I am of the opinion 



52 P.D. 12. 

that no implication is derived from said words with relation to borrowing 
on the credit of the securities of the savings department or to pledging the 
same for the purpose of paying depositors of the savings department. 
The intent of the Legislature in framing section 62 in this regard has been 
pointed out by the Supreme Judicial Court in its opinion in Commissioner 
of Banks in re Prudential Trust Co., 244 Mass. 64, and I do not think a 
further intent to prohibit borrowing and pledging can properly be inferred 
from said section 62. 

The court in that case said, at page 76 : — 

''The final clause, to the effect that these assets shall not be liable for 
general debts until after the deposits in the savings department have 
been paid in full, is the equivalent of saying that, after such deposits have 
been paid in full, then the remainder of the assets of the savings depart- 
ment shall be available for payment of general debts and obhgations of 
the trust company. It is a provision which hardly can be operative except 
in liquidation." 

The precise question of law raised by your inquiry has not been directly 
passed upon by the Supreme Judicial Court. Commissioner of Banks v. 
Cosmopolitan Trust Co., 240 Mass. 254, the case of a company in liquida- 
tion, was before the Supreme Judicial Court. The trust company in 
liquidation had, while a going concern, "through its officers, pledged 
mortgages and other securities, assets of the savings department . . . 
as collateral security upon its notes given for loans, the -proceeds of which 
were used ivholly in its commercial department." The court said, in speak- 
ing of these securities which had been pledged (p. 259) : — 

''The securities of the savings department, which were pledged by the 
trust company as security for a loan used hy its commercial department, 
were trust property . . . Under general principles of law governing the 
administration of trusts, as well as under the express terms of St. 1908, 
c. 520, § 3, now G. L. c. 172, § 62, it was a gross breach of duty for the 
. . . Trust Company to pledge these trust securities for the benefit of the 
commercial department." 

It is possible to infer, from this language as used by the court, that it 
would not have held it to be a breach of duty to pledge such trust securi- 
ties for the benefit of the savings department, of which alone they were 
assets. 

Of course, at all times the proceeds derived from any borrowing for, 
or pledging of securities of, the savings department of a trust company 
must be kept absolutely separate and distinct from funds pertaining to 
the commercial department of such company and from any other of the 
funds of such company, and must be used only for the benefit of depositors 
of the savings department. 

I am not unmindful of the fact that the trust company, as such, will be 
the borrower of the money, that the debt incurred will be, strictly speaking, 
its own and not that of the savings department, as such; but if the inten- 
tion be at all times to apply the proceeds of the loan to the pajmient of the 
depositors of the savings department, and it is, in fact, so applied, I am 
of the opinion that the securities of the savings department pledged for 
the repayment of the loan at some future time cannot fairly be said to be 
"liable for the debts or obligations" of the corporation before the deposits 
in the savings department have been paid in full, within the meaning of 
the provisions of said section 62. Literally, the loan may be a debt or 



P.D. 12. 53 

obligation of the corporation, but, being a debt or obligation incurred 
solely for the benefit of the savings department, it is not, in my opinion, 
such a debt or obligation of the corporation as was intended by the Legis- 
lature to be comprehended in the words ''debts or obhgations thereof," 
as used in said section 62. 

Therefore, in view of the foregoing considerations and upon the assump- 
tion that the proceeds of the contemplated loan are at all times kept 
segregated for the payment of depositors in the savings department, 
I answer your question in the affirmative. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement System — Basis for Assessments on Teachers — Salaries. 
The Teachers' Retirement Board should base its assessments for the 
annuity fund on the full salary established for a teacher, irrespective 
of any sum paid to such teacher or any deduction made from such 
salary, by a town, except when a teacher has made an agreement 
with the town to serve for a designated period without salary. 

March 11, 1932. 
Dr. Payson Smith, Commissioner of Education. 
Dear Sir : — You have asked my opinion as follows : — 
''In many places the teachers are assisting the community where they 
are employed by making contributions to the city or town. These con- 
tributions have been made in different ways, and the Retirement Board 
would like your opinion as to the salary which should be used as a basis 
for assessments to the annuity fund in the following three cases : 

1. If the teachers agree to contribute to the town a percentage of their 
salaries, as, for example, ten per cent, and each teacher receives from the 
town each month two checks, one for ten per cent of his monthly salary 
and the other check for ninety per cent of his monthly salary minus the 
assessment due the annuity fund, it being understood that the check for 
the ten per cent of his monthly salary is to be endorsed back to the 
town upon its receipt by the teacher, shall the assessment for the annuity 
fund be based on the full salary or on ninety per cent of the teacher's 
salary? 

2. If the teachers agree to contribute to the town a percentage of their 
salaries, as, for example, ten per cent, and each teacher receives each 
month a check for only ninety per cent minus the assessment due the 
annuity fund, shall the assessment for the annuity fund be based on the 
full salary or on ninety per cent of the teacher's salary? 

In some of these cases the pay rolls are being made out as follows : 

Name of Monthly 10% due 5% due Balance due 

Teacher. Salary. Town. Annuity Fund. Teacher. 

3. If the teachers agree to serve for a certain period during the school 
year without pay, should the Retirement Board receive the full annual 
assessment which each teacher would have paid if he had received his 
full salary, or shall the assessment for the annuity fund be based only on 
the amount received by each teacher?" 

G. L. c. 32, § 9 (2), as it relates to the annuity fund of the retirement 
system for teachers, provides : — 

"The annuity fund shall consist of assessments paid by members and 
interest derived from investments of the annuity fund. Each member 



54 P.D. 12. 

shall pay into the annuity fund, by deduction from his salary in the man- 
ner provided in section twelve (5), such assessments upon his salary as 
may be determined by the board." 

G. L. c. 32, § 12 (5), referred to in said section 9 (2), reads: — 

"The school committee of each town shall, as directed by the board, 
deduct from the amount of the salary due each teacher employed in the 
public schools of such town such amounts as are due as contributions to 
the annuity fund as prescribed in section nine, shall send to the treasurer 
of said town a statement as voucher for such deductions, and shall send 
a duplicate statement to the secretary of the board." 

You have informed me that the rate of assessment upon teachers' 
salaries has been set at five per cent by the Retirement Board. 

The word "salary," as used in said section 9 (2), means the compen- 
sation which each of the teachers affected by the statute is entitled to 
receive as a matter of law. If a teacher, of his own free will, makes a 
contribution from his salary of any amount or any percentage thereof, 
the manner in which he pays or causes such amount or percentage to be 
paid out of his salary — whether by a direct payment by himself from the 
total amount of his salary or by a deduction therefrom made with his 
consent by the body or person making payment to him — is immaterial 
to a determination by the Retirement Board of the amount of his salar3\ 
His "salary," as the word is used in the instant statute, is still the total 
amount of the compensation which he is by law entitled to receive, and 
such total amount is not to be considered as lessened by any sums which 
he may himself expend or deduct, or may authorize to be spent or de- 
ducted, therefrom for some purpose designated by him, even if such 
purpose be a contribution to the treasury of the town in which he teaches. 

(1) I answer your first question to the effect that the Retirement 
Board should base its assessment on the full salary to which the teacher 
is entitled by law, regardless of any sum paid therefrom to the town by 
or on behalf of the teacher, with his consent. 

(2) I answer your second question to the effect that the Retirement 
Board should base its assessment on the full salary to which the teacher 
is entitled by law, regardless of any deduction made by a town from the 
amount so due, with the express consent of the teacher, provided the 
amount so deducted is intended by the teacher as a contribution from his 
full salary to be applied to some purpose, even if such purpose be the re- 
plenishment of the town's treasury. 

(3) If a teacher, instead of voluntarily making a contribution for some 
purpose from a salary due him under the law, enters into an agreement, 
oral or written, by which he contracts to serve for a designated period 
without salary, it cannot be said that for such period named in the agree- 
ment he is receiving or is entitled to receive any salar3\ The annual 
salary which he would, in the absence of such agreement, have received 
is reduced by the amount which has been released by contract for the 
said designated period, and which, accordingly, he has not been entitled 
to as a matter of law. 

The manner in which the town pay rolls are made out, as referred to 
in your letter, has no real bearing upon the determinations to be made by 
your Board. It is quite likely that such pay rolls do not state the facts in 
relation to the salary cuts or contributions with such a degree of accuracy 
as to indicate to the Board the precise nature of such facts as they relate 
to the character of a particular deduction from a teacher's salary. It is 



P.D. 12. 55 

for the Board to determine, in any case before it, just what the true facts 
are concerning the nature of the teacher's cut or contribution, and then 
to apply the proper principles of law to the facts as found by them. 

In view of these considerations, I answer your third question to the 
effect that the Retirement Board should base the assessment on the 
amount actually received by the teacher during the year. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

County Commissioners — Authority — Lease. 

A board of county commissioners has authority to lease a building for 
district court purposes. 

March 15, 1932. 

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

Dear Sir: — You have requested my opinion in the following letter: — 

"In connection with the work of auditing countj^ accounts by the Divi- 
sion of Accounts, I respectfully ask to be advised as to whether a board 
of county commissioners may lease a building for district court purposes 
for a period of ten years. 

The particular matter involved is a lease running for ten years from 
January 1, 1932, at an annual rental of $1,900, this rate being considerably 
in excess of the amount paid for the same quarters during the preceding 
years. This lease is far in excess of the $800-contract provision set 
forth in the statutes. 

I would like to be advised, therefore, whether or not the contract for 
the period specified is permitted by general law, and whether the Director 
of Accounts is authorized to approve payment of bills on account of the 
lease, which calls for monthly expenditures, in the aggregate, in excess 
of S800." 

I am of the opinion that a board of county commissioners has authority 
to lease a building for district court purposes. 
G. L. c. 34, § 3, reads as follows: — 

"Each county shall provide suitable court houses, jails, houses of cor- 
rection, fireproof offices and other public buildings necessary for its use, 
and suitable accommodations for district courts, except that the county 
of Dukes need not provide a house of correction, and that Boston shall 
provide necessary public buildings for Suffolk county." 

In specific terms the foregoing section directs the county, which in 
this regard acts through its board of county commissioners, to "provide 
. . . suitable accommodations for district courts." This direction is 
additional to another direction in the same statute requiring them to 
"provide suitable court houses." Earlier provisions of statutes upon the 
same subject, now codified in G. L. c. 34, § 3, have specifically authorized 
the hiring or renting of accommodations for district courts (R. L. c. 20, 
§ 6; St. 1890, c. 440, § 11; St. 1891, c. 70), and I am of the opinion that 
the direction to provide suitable accommodations for district courts im- 
pliedly grants power to rent or lease such accommodations. 

G. L. c. 34, § 17, as amended by St. 1922, c. 383, reads: — 

"All contracts exceeding eight hundred dollars in amount made by 
the commissioners for building, altering, furnishing or repairing public 
buildings, or for the construction or repair of pubhc works, or for the 



56 P.D. 12. 

purchase of supplies, shall be in writing and shall be filed with said com- 
missioners or their clerk, and a copy of each such contract shall be filed 
in the office of the county treasurer. All changes in or additions to, or 
agreements for extras under, such contracts shall also be in writing and 
be so filed. All such contracts shall be made after notice inviting bids 
therefor has been posted for at least one week in a conspicuous place in 
each county building where the commissioners have an office and has been 
advertised at least three times in a newspaper, if any, published in the 
city or town wherein the public building, bridge, highway or public work 
or institution to be supplied in accordance with the contract is or is to be 
situated ; otherwise in any newspaper of general circulation in the county. 
The commissioners shall in each case make and file with the county treas- 
urer a sworn certificate of such posting and advertising, but in an emer- 
gency, to the existence of which they shall certify upon the orders to the 
county treasurer for the payment of bills, they may contract for repairs 
without such posting or advertising. All bids shall be publicly opened in 
the presence of the commissioners and recorded in their records. No 
contract made in violation of this section shall be valid against the county, 
and no payment thereunder shall be made. The commissioners may, 
however, repair county buildings or other pubhc works by day work, if 
in their judgment, expressed in a vote, the best interests of the county so 
require; but no bill therefor in excess of eight hundred dollars shall be 
paid by the county treasurer unless, upon or with the bill, the clerk of the 
commissioners has certified that such vote is entered upon their records." 

A lease is not one of the forms of contract mentioned in said section 
17, and the provisions therein relative to advertising and other forms of 
procedure, together with a limitation on the amount of the contracts 
referred to in said section 17, are not apphcable to the lease mentioned 
in your letter. 

You are therefore, in my opinion, other things being equal, authorized 
to approve payment of bills on account of such a lease as is described in 
your question, even if the lease calls for monthly expenditures in excess 
of $800. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Police Matrons. 

Police matrons in cities having a population of over 30,000, except Boston, 
are not within the classified civil service. 

March 23, 1932. 

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

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

"Are pohce matrons in cities having a population of over 30,000, ex- 
cept Boston, within the classified civil service?" 

I answer your question in the negative. 

The appointment and tenure of office of police matrons are set forth in 
G. L. c. 147, §§18 and 19, which are a codification of older statutes deal- 
ing with the subject, none of which, however, preceded St. 1884, c. 320, 
which established the civil service system substantially as we know it 



P.D. 12. 57 

today. An opinion of one of my predecessors in office to the then Civil 
Service Commissioner (VI Op. Atty. Gen. 152), deahng with matrons 
at tlie house of detention in the city of Boston, sets forth principles of 
law which are applicable to the instant matter. 

The provisions of G. L. c. 147, §§18 and 19, are of such character, 
with regard to the appointment and removal of police matrons in cities 
having a population of over 30,000, as to be inconsistent with the appHca- 
tion of the civil service laws to them. The Legislature, having made 
such provisions with general civil service laws in existence, must be held 
to have intended that the matrons to whom such provisions applied were 
not to be included within the general civil service laws. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Trust Comyany — Savings Department — Borrowing — Pledging Securities 
— Repayment of Prior Loan. 

A trust company has authority to borrow in its savings department and 
to pledge securities of such department for the purpose of repaying 
an existing loan secured by assets of such department if said existing 
loan was made for and apphed to the payment of depositors of the 
savings department. 

March 25, 1932. 
Hon. Arthur Guy, Commissioner of Banks. 

Dear Sir: — In a communication dated March 24, 1932, you have 
asked my opinion upon the following question of law: — 

"Has a trust company chartered under the provisions of G. L. c. 172, 
authority to borrow money in its savings department, and to pledge as 
security therefor the assets of the savings department, for the purpose of 
repaying existing loans secured by assets of the savings department?" 

March 7, 1932, you requested my opinion upon the following ques- 
tion : — 

"Has a trust company chartered under the provisions of G. L. c. 172, 
authority to borrow money in its savings department and to pledge as 
security therefor the assets of the savings department?" 

I answered your question of March 7, 1932, in the affirmative, and 
stated that such answer was based "upon the assumption that the pro- 
ceeds of the contemplated loan are at all times kept segregated for the 
payment of depositors in the savings department" {ante, p. 49). 

In that opinion I made it plain that the authority of a trust company 
to pledge the assets of its savings department as security for a loan was 
limited to loans which were intended to be applied for the benefit of the 
savings department alone, and to be used in such department only for the 
purpose of paying depositors of said department. It was made clear 
therein that only when the loan was to be negotiated for such special 
purpose, beneficial to the savings department, was there authority to 
pledge such assets. It was not said that a loan intended for the general 
benefit of the savings department, by application in any or all means 
capable of producing such benefit, was of such a character that it might 
be secured by a pledge of savings department securities, under authority 
vested in the officers of the company. 



58 P.D. 12. 

Moreover, it was explicitly stated that a loan upon the pledge of such 
securities must at all times be kept, and presumably used when necessary, 
"for the payment of depositors in the savings department." 

I am of the opinion, however, that a repayment of an existing loan, 
made for and applied, when necessary, to the payment of depositors in the 
savings department, which is a mere refunding of the original loan, in 
which one note of the trust company is given in lieu of another, though 
possibly to a different lender, and the assets, in effect, still continue as a 
pledge for money borrowed for the payment of depositors, partakes to 
such an extent of the character of the original loan that it may be said 
to be made for the purpose of paying depositors, and so the new pledging 
of the securities will be within the scope of the authority of the officers 
of the trust company. 

I therefore answer your present question, as contained in your com- 
munication of March 24th, in the affirmative. 

It has been suggested, however, by a letter sent to you from the Recon- 
struction Finance Corporation, that if the proceeds of a loan for which 
assets of a savings department have been pledged, though intended for 
the payment of depositors in said department, have in fact nbt been used 
for such purpose but have been expended, in whole or in part, for other 
purposes, authority to pledge the assets of said department for a new 
loan to refund the old might no longer exist in the officers of the tmst 
company. 

I am of the opinion that, under the circumstances described in the 
foregoing paragraph, the officers of the trust company would not have 
authority to pledge the assets of the savings department as security for 
a new loan intended to be applied to the repayment of the old. If the 
proceeds of the original loan have been used for purposes not inuring to 
the benefit of the savings department, or if they have been used for a 
purpose beneficial to the savings department other than the payment of 
depositors, by such transactions, and by the negotiation of a second loan 
to repay the first, the officers would, in effect, be repledging the assets for 
money borrowed for a purpose disconnected from the payment of deposi- 
tors. Such a course would be a colorable pretext for borrowing money 
and pledging assets for some purpose other than the single purpose of 
paying depositors, which alone gives authority to the officers to pledge 
such assets. 

Very truly yours, 

Joseph E. Warner, Attorney General, 

Civil Service — Police Commissioner for the City of Boston — Employees. 

Employees of the Police Commissioner for the City of Boston, appointed 
under St. 1906, c. 291, § 8, as well as pohce officers, are not employees 
of the city of Boston. 

April 15, 1932. 

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

Dear Sir: — I am in receipt from you of the following letter: — 

"It has been expressly decided in the case of Phillips v. Boston, 150 
Mass. 491, 494, that police officers of the city of Boston are State employees, 

I respectfully request your opinion as to whether all other employees 
under the Police Commissioner for the City of Boston are State or city 



P.D. 12. 59 

employees. This would include police chauffeurs, clerks, stenographers, 
signalmen, electricians, maintenance men, laborers, janitors, etc." 

In the case of Phillips v. Boston, 150 Mass. 491, 494, the Supreme Judi- 
cial Court said, with relation to a policeman of the city of Boston appointed 
by the then Board of Police Commissioners, which, like the present Com- 
missioner, was appointed by the Governor, — 

"There was no contract, properly speaking, between himself (the 
pohceman) and the city of Boston, by which it had engaged to pay his 
salary. He was essentially a State officer, appointed to preserve its peace 
and to execute its laws as well as the ordinances of the city. He was not 
an officer of the city. After the reorganization of the police force, in 
October, 1878, such an officer was not appointed by the city, or by any 
of its governing boards, nor was he removable by them. Upon the city 
was imposed by law the duty of paying these officers, although they were 
not controlled by it, as the Legislature held this to be a proper mode of 
distributing the public burden. With the plaintiff's removal, neither the 
city nor any of its officials had anything to do." 

Concerning the employees to whom you refer in the second paragraph 
of your letter, who are, I assume, appointed by the Police Commissioner 
under St. 1906, c. 291, § 8, by which he is given authority, among other 
things, to "employ such clerks, stenographers and other employees as 
he may deem necessary for the proper performance of the duties of his 
office," such employees, although not "officers" like poHcemen (Sims v. 
Police Commissioner, 193 Mass. 547, 549), are in a similar situation with 
relation to their employment to that of the policemen. They are em- 
ployees of the Police Commissioner and not of the city of Boston, and, 
since the Police Commissioner is himself an officer of the Commonwealth, 
they may well be said to be State employees rather than city employees. 
Although their salaries are paid by the city of Boston, like that of a police- 
man, this fact is not an expression of legislative determination that such 
employees shall be employees of the city, for, as the Supreme Judicial 
Court has said, the duty of paying them, although they were not con- 
trolled by the city, has been placed upon the city, "as the Legislature 
held this to be a proper mode of distributing the public burden." 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Reinstatement of Employee — Conviction. 

G. L. c. 31, § 17, prohibiting the appointment or employment of a person 
within one year after his conviction of crime, applies to the rein- 
statement of an employee separated from the service. 

April 20, 1932. 
Hon. Paul E. Tierney, Commissioner of Civil Service. 

Dear Sir : — You request my opinion as to whether the prohibition 
contained in G. L. c. 31, § 17, to the effect that no person shall be "ap- 
pointed or employed" in any position within one year after his conviction 
of crime, extends to a case of "reinstatement" of an employee who has 
become separated from the service. I assume, from your statement, that 
in the case before you there has in fact been a separation from the service. 

In my opinion, the statute does apply. The statute makes no distinc- 
tion between reinstatement and appointment. That distinction in terms 



60 P.D. 12. 

is made in the rules, which provide that "an appointing officer may rein- 
state," with the consent of the Commissioner of Civil Service, one who 
has been separated from the service (Rule 23, par. 3). But this distinc- 
tion in terms, subsequently made in the rules, does not alter the fact that 
a so-called reinstatement is in substance and effect an appointment, 
within the proper meaning of that term as used in the statute. It is the 
fining of a vacancy by "an appointing officer" (Rule 23, par. 3). 

Moreover, the purpose of the statute (section 17) is in accord with 
this construction, for it would seem to apply to the case of what the rules 
term "reinstatement" no less than to the case of original appointment. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Co-operative Banks — Investments — Bonds of the Boston Metropolitan 

District. 

Bonds of the Boston Metropolitan District are a legal investment for 

co-operative banks. 

May 5, 1932. 
Hon. Arthur Guy, Commissioner of Banks. 

Dear Sir : — In a recent communication with relation to investments 
for co-operative banks you have set forth the following facts : — 

"The Boston Metropohtan District, as created by St. 1929, c. 383, 
amended by St. 1932, c. 147, comprising fourteen cities and towns, has 
issued as of March 1, 1932, $24,000,000 of bonds, maturing serially from 
March 1, 1933, to March 1, 1966. This constitutes the total funded 
debt incurred by said district as such." 

You have asked me the following question as to the law applicable 
thereto : — 

"In connection with the foregoing, your opinion is respectfully re- 
quested upon the following question : — 

In computing the net indebtedness of the district for the purposes of 
G. L. c. 168, § 54, should the funded debt of the cities and towns com- 
prising the district be taken into consideration, or am I correct in assum- 
ing that for said purposes the total debt of the Boston Metropolitan 
District is, at the present time, $24,000,000, represented by the amount 
of said issue of bonds?" 

Investments for co-operative banks are limited by the following statu- 
tory provisions : — 

G. L. c. 170, § 23, which reads, in part, as follows: — 

"The directors may invest any unsold or surplus funds in any of the 
securities named in the second clause of section fifty-four of chapter 
one hundred and sixty-eight, ..." 

G. L. c. 168, § 54, cl. Second, provides, in part, as follows : — 

"Deposits and the income derived therefrom shall be invested only as 
follows : 

Second. . . . 

(c) In the bonds or notes of an incorporated district in this common- 
wealth whose net indebtedness does not exceed five per cent of the last 
preceding valuation of the property therein for the assessment of taxes." 



P.D. 12. 61 

I am of the opinion that in computing the net indebtedness of the 
Boston Metropohtan District to ascertain whether such "net indebted- 
ness does not exceed five per cent of the last preceding valuation of the 
property therein for the assessment of taxes" — in order to determine 
whether the bonds of said district are a legal investment for co-operative 
banks, under G. L. c. 168, § 54 — the funded debt of the cities and towns 
comprising the district need not be taken into consideration, but only the 
indebtedness of the district itself. This being so, upon the facts as you 
have set them forth the bonds of the said district would appear to be a 
legal investment for co-operative banks. 

The district is a corporate body politic created by St. 1929, c. 383. Its 
name was changed by St. 1932, c. 147, from "Metropohtan Transit Dis- 
trict" to "Boston Metropolitan District." St. 1929, c. 383, § 1, relative 
to the creation of the district, provides : — 

"The territory within and the inhabitants of the following cities and 
towns, to wit: Arlington, Belmont, Boston, Brookhne, Cambridge, Chel- 
sea, Everett, Maiden, Medford, Milton, Newton, Revere, Somerville and 
Watertown, shall constitute a district or incorporated municipality, and 
for the purposes of this act are made a body politic and corporate under 
the name of the metropolitan transit district, hereinafter called the dis- 
trict, with power to take and hold property, sue and be sued in law and 
equity, to prosecute and defend in all actions relating to the property 
and affairs of the district, and of contracting and doing other necessary 
acts relative to its property and affairs ; and said territory and inhabitants 
shall be jointly and severally hable for the debts and obhgations thereof. 
Said district shall have a corporate seal. Process may be served upon 
the treasurer of the district as hereinafter provided. 

The real estate of the district, with the exception of that used for tun- 
nels, subways, stations, transfer areas, rapid transit lines and their appur- 
tenances, shall be subject to taxation by the city or town in which it is 
located in the same manner and to the same extent as if privately owned." 

Under section 10 of said chapter 383, as amended, the trustees of the 
district have authority to issue and sell bonds; and I assume, from your 
communication, that the bonds which are the subject of your inquiry 
were in all respects properly issued. 

There is nothing in the statutes which specifically indicates an inten- 
tion on the part of the Legislature that the debts of municipal units 
within the district shall be added to the debts of the district itself in 
computing the net indebtedness of the district. 

In the absence of an expression of specific intention on the part of a 
legislative body that debts of cities and towns within a district, which 
have a separate existence as political subdivisions, are to be included as 
part of the debt of the district, the ordinary rule of law in the United 
States is to the effect that such debts of cities and towns, which are sonie- 
times referred to as overlapping debts, are not within a proper definition 
of "debts" or "indebtedness" of the district with relation to statutory 
or constitutional debt limitations. Levy v. McClellan, 196 N. Y. 178; 
LipTyert v. School District, 187 Wis. 154; Tuttle v. Polk, 92 Iowa, 433; 
Kennebec Water District v. Waterville, 96 Me. 234; Wilso7i v. Board, 133 
111. 443; Russell v. Middletown, 101 Conn. 249. 

Nor does there appear to be any different principle of law to be applied 
to the interpretation of the words "net indebtedness" of "an incorpo- 



62 P.D. 12. 

rated district in this Commonwealth," as those words are used, with 
relation to investments for co-operative banks, in G. L. c. 168, § 54, cl. 
Second, (c). 

There is no particular definition of "net indebtedness," as those words 
are employed in section 54, clause Second, (c), contained in said chapter 
168. Said section 54, clause Second, (g), contains a definition of "net 
indebtedness," but by its terms the definition is applicable to those words 
only as they are employed in subdivisions (d), (e) and (/) of said clause, 
and consequently has no effect in construing the words as they are used 
in said subdivision (c). It is necessary, therefore, to apply, by way of 
definition of the words, the general mode of statutory definition set forth 
in G. L. c. 4, § 7, which is as follows: — 

"In construing statutes the following words shall have the meanings 
herein given, unless a contrary intention clearly appears : 

Twentieth, ' Net indebtedness ' shall mean the indebtedness of a county, 
city, town or district, omitting debts created for supplying the inhabit- 
ants with water and other debts exempted from the operation of the 
law limiting their indebtedness, and deducting the amount of sinking 
funds available for the payment of the indebtedness included." 

Since the definition set forth in said section 7 does not expressly in- 
clude overlapping debts of cities and towns in a district, within the mean- 
ing of "net indebtedness" "of a . . . district," there appears to be no 
intent upon the part of the Legislature to depart from the ordinary prin- 
ciple of law referred to, and to include overlapping debts of cities and 
towns as part of the definition of net indebtedness of a district. 

Section 54, clause Second, (c), itself, employs the words "incorporated 
district" in such a manner as would tend to show an intention on the 
part of the Legislature to indicate that the corporate obligor, the dis- 
trict, rather than any or all of its component parts, was the body whose 
debt was to be looked to. 

In the act estabhshing the MetropoHtan Transit District, St. 1929, 
c. 383, § 10, the separate character of the district from that of its com- 
ponent parts is made clear by a provision setting forth the separation of 
the debts of the district, as such, from those of cities and towns therein, 
as follows : — 

"Indebtedness incurred under the provisions of this act shall not be 
included in determining the statutory limit of indebtedness of any of 
the cities or towns constituting the district." 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Labor — Hours of Work — " Textile Goods." 

The spinning of cotton or worsted yarns does not constitute the manu- 
facture of textile goods, with relation to the limitations of working 
hours provided by G. L. c. 149, § 59. 

May 7, 1932. 

Hon. Edwin S. Smith, Commissioner of Labor and Industries. 

Dear Sir : — You have asked my opinion as to whether the spinning 
of cotton or worsted yarns constitutes "the manufacture of textile goods," 
within the meaning of G. L. c. 149, § 59, which reads as follows: — 



P.D. 12. 63 

"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. Whoever 
violates any provision of this section shall be punished by a fine of not 
less than twenty nor more than fifty dollars." 

I assume that such yarns are spun from raw or partially prepared 
material, and that the process of spinning fairly falls within the meaning 
of the word "manufacture" in the instant statute. "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 suit- 
able forms for use," as stated in Commonwealth v. Green, 253 Mass. 458. 

Nevertheless, I am of the opinion that yarns which are so manufac- 
tured are not "textile goods," within the meaning of said statutes. The 
words "textile goods," as used in earlier statutes similar to G. L. c. 149, 
§ 59, have been held by former Attorneys General to be synonymous 
with "textile fabrics," and the noun "textile" to be used to denote "a 
fabric which is woven or may be woven — a fabric made by weaving;" 
and these interpretations indicate that there is a distinction to be made 
between the words "textile fabrics" and "textile materials." Ill Op. 
Atty. Gen. 126; opinion rendered State Board of Labor and Industries, 
April 24, 1919 (not published). Yarn is undoubtedly a textile material, 
but it is not a textile fabric or textile goods, as the latter words are used 
in the instant statute. Fabric, in its common modern use, means a 
product farther advanced in manufacture than yarn, which has merely 
been spun. The word has been defined as follows : — ■ 

"Anything manufactured; in modern use, only, cloth that is woven 
or knit from fibers, either vegetable or animal; manufactured cloth; a 
textile fabric; as, silks, or other fabrics." (Webster's Dictionary.) 

"A woven or felted cloth of any material or style of weaving; anj^thing 
produced by weaving or interlacing; distinctively called textile fabric." 
(Century Dictionary.) 

Accordingly, I advise you that the spinning of yarn alone, without 
performing further work with such yarn, does not of itself constitute 
"the manufacture of textile goods," within the meaning of G. L. c. 149, § 59. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Ohligation of Contract — Municipal Bonds. 

A proposed measure is unconstitutional because detrimentally affecting 
vested rights of bondholders by lessening established security for 
payment. 

May 13, 1932. 
To the Honorable Senate. 

Gentlemen: — I respectfully submit this answer to the question con- 
tained in an order adopted by the Honorable Senate on May 10, 1932. 

The question relates to the constitutionality of a pending bill (H, 
1404), entitled "An Act relative to street and other traffic improvements 
in connection with the construction of a vehicular tunnel between Boston 
proper and East Boston." This bill amends in several particulars St. 
1929, c. 297. 



64 P.D. 12. 

The question is directed specifically to the point whether section 2 of 
the bill, if enacted, would alter the contractual obhgations of the city of 
Boston with respect to bonds already issued under the authority of St. 
1929, c. 297, and in the hands of investors. 

St. 1929, c. 297, § 8, authorizes the city of Boston to "issue and sell 
. . . bonds of the city, ... to an amount not exceeding sixteen milhon 
dollars" for ''terms not exceeding fifty years," and provides for the estab- 
lishment of a sinking fund for the payment of said bonds. It further 
provides : — 

"There shall annually be paid into such fund from tolls and charges 
or otherwise as hereinafter provided such sum at least as is necessary to 
provide for the payment of the principal of all such bonds at the expira- 
tion of fifty years from their respective dates; . . . Upon and after the 
completion of the tunnel as aforesaid there shall also be paid into said 
fund the proceeds received from any sales or leases under section four 
and the balance of the proceeds of any bonds previously issued hereunder 
and no longer required for construction purposes. 

All tolls, rents, percentages, compensation and other charges received 
for any use of the tunnel shall be used by the treasurer of the city only 
to meet the operating costs and, subject to the provisions of section 
twelve, the excess in any year of such tolls and charges over operating 
costs shall be paid into said fund." 

It is provided by section 10 of St. 1929, c. 297, that, — 

"In addition to the full credit of the city, so much of all receipts from 
tolls and charges for or on account of the use of the tunnel as are required 
to be expended, by the provisions of this act, for the payment of the prin- 
cipal and interest of the bonds issued under section eight, as and when 
the same become due and payable, are hereby pledged to such payment; 
and said provisions are hereby declared to constitute contracts between 
the city and the holders of said bonds within the meaning of section ten 
of Article I of the constitution of the United States, and a recital thereof 
shall appear on the face of said bonds." 

Section 2 of House Bill 1404 provides for the issuance of $3,000,000 
additional bonds, for terms not exceeding thirty years, and that the 
sinking fund provision of St. 1929, c. 297, § 8, shall also apply to such 
additional bonds. The effect of this change is to lessen the security of 
the bondholders who purchased and hold bonds of the original $16,000,000 
issue, and to that extent impairs the contract rights of the holders of said 
bonds. Contract rights have vested in said bondholders, and the Legis- 
lature has no power to alter such contract rights to the detriment of those 
who dealt with the city of Boston upon the faith of the authority granted 
by the Legislature to that city. To prevent such character of injustices 
was one of the reasons that U. S. Const., art. I, § 10, denied to the States 
the power of impairing the obligation of legal contracts. Brooklyn Park 
Com. V. Armstrong, 45 N. Y. 234, cited with approval in Mount Pleasant 
V. Beckwith, 100 U. S. 514, 533; Hubert v. New Orleans, 215 U. S. 170; St. 
Louis Union Trust Co. v. Franklin- American Trust Co., 52 Fed. (2d) 431. 

Accordingly, I must answer your question in the negative; but I am of 
the opinion that said bill with appropriate amendments will be constitu- 
tional if enacted into law. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 65 

Counties — Retirement System — Clerk of District Court. 

A clerk of a district court is an employee of a county, within the meaning 

of G. L. c. 32, § 20. 
Such clerk must retire at the age of seventy. 

May 27, 1932. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir : — You request my opinion upon the following question : — 

"Is a clerk of a district court appointed by the Governor, with the 
advice and consent of the Council, under G. L. c. 218, § 8, an employee of 
the county, within the meaning of G. L. c. 32, § 20, as amended, or are 
the provisions of said section 20 inapplicable to a person appointed by 
the Governor, with the consent and advice of the Council?" 

Such clerk is an employee of the county, within the meaning of said 
section 20. This section expressly defines the term "employee" as in- 
cluding "any officials or pubhc officers whose compensation is paid by 
the county, whether employed or appointed for a stated term or otherwise." 

The case of O'Connell v. Retirement Board of Boston, 254 Mass. 404, to 
which you refer, and in which it was held that public officers do not come 
within the term "employees," as used in the statute there in question, is 
inapplicable. After that decision, and in view of it, the statute here 
involved was amended in order to bring public officers within the definition. 
St. 1926, c. 378. The fact that the appointment was made by the Gov- 
ernor, with the advice and consent of the Council (G. L. c. 218, § 8), is 
immaterial. The clerk is paid by the county (G. L. c. 218, § 74), and so 
comes within the words of G. L. c. 32, § 20, above quoted. 

[You will note that my answer is confined to your question. I express 
no opinion as to whether some particular clerk is a member of the retire- 
ment system. That depends upon other statutory provisions, and upon 
facts as to which I am not informed. Thus G. L. c. 32, § 22 (2), provides: 
"Persons over fifty-five who enter the service of the county after the 
establishment of the system shall not be allowed to become members, 
..." Also St. 1926, c. 378, making public officers eligible members of the 
retirement system, apparently provides (section 3) that certain public 
officers theretofore in the service might join or not at their election.] 

You also ask the following question : — 

"If your answer to the preceding question is that said section 20 applies 
to a clerk of a district court appointed under G. L. c. 218, § 8, is such a 
clerk required by G. L. c. 32, § 22 (4), to retire upon reaching the age of 
seventy years and prior to the expiration of the term of five years for 
which he was appointed as aforesaid?" 

If the clerk be a member of the system he must be retired upon reaching 
the age of seventy, under the provision of said section 22 referred to in 
your question, which provides that "any member who reaches the age of 
seventy shall so retire." That this provision prevails over the provision 
for a five-year term (G. L. c. 218, § 8) seems settled by Goodale v. County 
Commissioners, 277 Mass. 144. 

Yours very truly, 

Joseph E. Warner, Attoriiey General. 



66 P.D. 12. 

Fraternal Benefit Society — Lord's Day — Meetings. 

A vote of the governing body of a fraternal benefit society passed on the 
Lord's Day is not invalid because taken upon such day. 

June 3, 1932. 
Hon. Arthur E. Linnell, Acting Commissioner of Insurance. 

Dear Sir : — You have asked me the following question of law : — 

"Is a vote by the members of the supreme legislative or governing body 
of a domestic fraternal benefit society approving a merger or transfer, 
under G. L. c. 176, § 12, valid if the meeting of such body at which the 
vote is taken is held in this Commonwealth on Sunday?" 

I answer your question in the affirmative. 

The applicable provision of our statutes with relation to work done on 
Sunday is G. L. c. 136, § 5, which reads as follows: — 

"Whoever on the Lord's day keeps open his shop, warehouse or work- 
house, or does any manner of labor, business or work, except works of 
necessity and charity, shall be punished by a fine of not more than fifty 
dollars." 

A domestic fraternal benefit society differs from many societies and 
organizations in that it is not, from its very nature, carried on for pecuniary 
gain, but, under the terms of the statute which defines and regulates it, 
it is a society "organized and carried on solely for the mutual benefit of 
its members or their beneficiaries, and not for profit, . . . which makes 
provision for the payment of death or disability benefits." G. L. c. 176, 
§ 1. The taking of a vote by the members of the governing body of such 
a society approving a merger of the society with another organization, 
under G. L. c. 176, § 12, is not such an act of business as, in the language 
of the Supreme Judicial Court in Bennett v. Brooks, 9 Allen, 118, 120, 
"may be deemed to be an employment or calling carried on for purposes 
of gain or profit," since the society itself is not carried on for purposes of 
gain or profit. 

The principles laid down in Bennett v. Brooks, 9 Allen, 118, and Donovan 
V. McCarty, 155 Mass. 543, and the language used in the opinions of the 
Supreme Judicial Court in these cases, in differentiating between acts 
which may legally be performed on the Lord's Day and those which may 
not, control the interpretation of the law as it applies to the facts con- 
tained in your question, and lead plainly to the conclusion that the acts 
to which you refer in such question may be valid even if performed on 
the Lord's Day, because they do not partake of the nature of "labor, 
business or work," as those words are u.sed in G. L. c. 136, § 5. See People 
V. Young Men's &c. Soc., 65 Barb. (N. Y.) 357; McCabe v. Fr. Matthew 
Soc, 24 Hun. (N. Y.) 149; In re Daughters of Israel &c. Soc, 210 N. Y. S. 
541; Pepin v. Soc. St. Jean, 24 R. I. 550. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 67 

County Retirement Systems — Court and Probation Officers. 

Court officers of district courts and of the Supreme Judicial and Superior 
Courts are employees of a county, within the meaning of G. L. c. 32, 
§ 20, and are members of the retirement systems. 

Probation officers of the district, municipal and juvenile courts of Boston 
are employees of a county, but not those of the Superior Court. 

June 7, 1932. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — You have requested my opinion upon certain questions 
of law concerning the relation of certain court officers and probation 
officers to the county retirement systems. 

Your first question is : — 

''Are court officers of district courts, appointed under G. L. c. 218, § 61, 
employees of the county, within the meaning of G. L. c. 32, § 20, as 
amended?" 

G. L. c. 32, § 20, as amended, with relation to county retirement sys- 
tems defines "employees" as follows: — 

'"Employees', any persons permanently and regularly employed in the 
direct service of the county whose sole or principal employment is in such 
service, except teachers employed in any day school conducted under 
sections twenty-five to thirty-seven, inclusive, of chapter seventy-four, 
and also any officials or public officers whose compensation is paid by 
the county, whether employed or appointed for a stated term or other- 
wise, except, in counties other than Worcester, an official or public officer 
elected by the people." 

Salaries of court officers in district courts are paid by the respective 
counties in which such courts are estabhshed. G. L. c. 218, § 74; § 84, 
as amended. 

Such officers, therefore, seem to fall within the definition of "em- 
ployees" stated in G. L. c. 32, § 20, above quoted, and I answer your 
first question in the affirmative. 

Your second question is : — 

"Are court officers of the Supreme Judicial and Superior Courts, ap- 
pointed under G. L. c. 221, § 70, employees of the count j^, within the 
meaning of G. L. c. 32, § 20, as amended?" 

The court officers referred to in your question are appointed in the 
manner set forth in G. L. c. 221, § 70, as amended, which reads: — 

"The sheriffs of Suffolk, Middlesex and Worcester counties may each 
appoint, subject to the approval of the justices of the superior court, 
officers for attendance upon the several sessions of the superior court in 
their respective counties, as follows: 

For Suffolk, not exceeding four for each session for civil business held 
with juries; three for each session held without juries; and six for the 
session for criminal business; said officers shall be interchanged between 
the several sessions so as to secure as nearly as may be equal service by all. 

For Middlesex, twelve for civil or criminal business, who shall, when 
required by the sheriff, attend the sessions of the supreme judicial or 
probate court when not in attendance on the superior court. 



68 P.D. 12. 

For Worcester, for civil or criminal business, such number as may be 
necessary, who shall also attend upon the sessions of the supreme judicial, 
probate and insolvency and land courts. 

Each of said officers shall give to the sheriff appointing him a bond 
with sufficient sureties, in the sum of fifteen hundred dollars, for the 
faithful performance of his duties. They shall have the authority of con- 
stables to serve venires for jurors and the processes of said courts, and in 
Worcester county to summon witnesses; and they shall be paid by the 
county their actual expenses necessarily incurred in making such services." 

The compensation of such officers is provided for by G. L. c. 221, § 75, 
as last amended by St. 1931, c. 301, § 41, and is to be paid by the respective 
counties in which the courts in which they serve are sitting. 

I answer your second question in the affirmative. 

Your third question reads : — 

"If you answer the preceding question in the affirmative, is it mandatory 
that court officers of the Supreme Judicial and Superior Courts join the 
county retirement system provided for by said chapter 32, or are they 
exempted therefrom by virtue of the provisions of section 66 of said chapter 
32?" 

G. L. c. 32, § 22 (3), provides that no "employee who is or will be en- 
titled to a pension from any county for any reason other than membership 
in the association may become a member." 

G. L. c. 32, § 66 (as amended by St. 1923, c. 407, § 3) and § 67, read as 
follows : — 

"Section 66. Any court officer of the supreme judicial or superior court 
who, in the judgment of the sheriff of his county, is disabled for useful 
service in either of said courts, and who is certified by a physician, desig- 
nated by the sheriff, to be permanently incapacitated, either mentally or 
physically, by injuries sustained through no fault of his own, in the actual 
performance of his duty in said court, and any court officer of either of said 
courts who has performed faithful service in either or both of said courts 
for not less than twenty years, and who in the judgment of the sheriff of 
his county is incapacitated for further service in said courts, shall, if the 
sheriff so requests, with the approval of a majority of the justices of the 
court in which he serves, be retired, and shall annually receive a pension 
equal to one half of the compensation received by him at the time of his 
retirement. 

Section 67. Pensions granted under the preceding section and all ex- 
penses connected therewith shall be paid by the commonwealth and the 
several counties to the same extent and in the same proportion as the 
salaries of the pensioners were paid at the time of their retirement." 

The pensions here provided for are contingent. It has been ruled by 
this department that the words "is or will be entitled" are inappHcable to 
such pensions. V Op. Atty. Gen. 634; VIII ibid., 547. I adhere to these 
earlier opinions, and advise you that the court officers referred to are not 
exempted from the retirement system by reason of the provisions of said 
section 66. 

Your fourth and fifth questions read : — 

"Are probation officers appointed under G. L. c. 276, § 83, employees 
of the county within the meaning of section 20 of said chapter 32, as 
amended? 



P.D. 12. 69 

If you answer the preceding question in the affirmative, is it mandatory 
that probation officers join the county retirement system provided for by 
said chapter 32, or are thev exempted therefrom by virtue of the provisions 
of G. L. c. 32, §§ 75 and 76?" 

G. L. c. 276, § 83, is 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 necessarj^ 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 ap- 
pointed shall hold office during the pleasure of the court making the ap- 
pointment. The compensation of each probation officer appointed by the 
superior court shall be fixed bj^ that court and by it apportioned from time 
to time among the counties wherein said officer performs his duties. . . ." 

It would seem that probation officers of the district courts and of the 
municipal and juvenile courts of the city of Boston are officers whose 
compensation is paid by the county, and so are "employees," under the 
terms of section 20. As to the probation officers of the Superior Court, 
the provision for service in different counties and for apportioning the 
compensation among different counties presents a difficulty. In my 
opinion, however, an officer so emploj^ed by different counties is eligible 
for membership in the retirement system of each of the counties by which 
his compensation is paid. This result seems to be in accord with the 
terms of section 20. Also, it is by analogy in accord with the legislative 
intent as to pensions, as to which provision is made that if a probation 
officer "is employed by more than one county" his pension shall be paid 
"by the counties by which his salary is paid, and in the same propor- 
tion." G. L. c. 32, § 76. 

As to your fifth question, G. L. c. 32, §§75 and 76, are as follows: — 

"Section 75. Any probation officer or assistant probation officer whose 
whole time is given to the duties of his office shall, at his request, be re- 
tired from active service and placed upon a pension roll by the court 
upon which it is his duty to attend, with the approval of the county 
commissioners of the county in which the court is situated; provided, 
that he is certified in writing by a phj^sician designated by such court to be 
permanently disabled, mentally or physically, for further service by reason 
of injuries or illness sustained or incurred through no fault of his in the 
actual performance of his duty as such officer. Any such probation officer 
or assistant probation officer who has faithfully performed his duties for 
not less than twenty consecutive years, and who is not less than sixty, 
shall be retired at his request without the aforesaid certification. Such 
probation officer must be retired upon attaining the age of seventy. 

Section 76. Every person retired under the preceding section shall 
receive an annual pension equal to one half of the compensation received 
by him at the time of his retirement, to be paid by the county employing 
him, or, if he is employed by more than one count}^, by the counties by 
which his salary is paid, and in the same proportion." 

The pension provided for in the first part of section 76 is contingent, 
and, as I have previously stated, the possibility of receiving it does not 



70 P.D. 12. 

debar from membership in the Retirement Association. The pension, 
however, provided for one who has had twenty consecutive years of 
service is not contingent, and may well render ineligible one who in fact 
is in a position to receive it. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Director of Animal Industry — Tuberculin Test — Reimbursement. 

Acts of an owner of cattle may disentitle him to reimbursement for cattle 

slaughtered. 

June 7, 1932. 

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

Dear Sir: — You request my opinion as to whether the statutory pro- 
visions making reimbursement by the Commonwealth for slaughter of 
cattle reacting to the tuberculin test dependent upon the fact that the 
owner has not, "in the opinion of the director, by wilful act or neglect, 
contributed to the spread of bovine tuberculosis" (G. L. c. 129, § 12A 
and § 33, as amended), should be construed as meaning contributed at 
any time, or should be limited to acts or conditions connected with the 
cattle tested. 

In my opinion, the statutory provision above quoted is not limited. 
According to the words of the statute, and I think according to its intent 
also, the compensation is not to be paid if the owner has at any time 
contributed to the spread of tuberculosis. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement System — Teachers' Annuity Fund — Repayment by Employee. 
Duty of a member of the retirement system to make a repayment discussed. 

June 9, 1932. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You ask my opinion on the following facts: A man was 
employed by the Commonwealth at the Gardner State Colony from 1912 
to February 26, 1917, and was a member of the State Employees' Retire- 
ment Association. On March 1, 1917, he entered the service of the Bristol 
County Agricultural School, and, not understanding that the Bristol 
County Agricultural School came under the teachers' retirement law, he 
informed the State Employees' Retirement Board that he was not enter- 
ing the public schools, and received a refund from the State Employees' 
Retirement Board, amounting to $232.54. Your specific questions are as 
follows: — 

"Is it necessary for this man to pay to the teachers' annuity fund the 
$232.54 which he withdrew from the State Employees' Retirement Asso- 
ciation; and, also, is it necessary that he be required to pay the in- 
terest which would have been credited to his account on the $232.54 
from 1917?" 

The refund made in 1917 by the State Employees' Retirement Board 
to the man above referred to was made in error. This amount should 
have been transferred to the teachers' annuity fund. The applicable 



P.D. 12. 71 

statute at the time of this refund was Gen. St. 1915, c. 197, amending 
St. 1911, c. 536. This act provides, in section 1, that, — 

''Members of the retirement association, estabhshed by chapter five 
hundred and thirty-two of the acts of the year nineteen hundred and 
eleven, as amended, who enter the service of the pubhc schools shall 
have the full amount of their contributions, together with such interest 
as shall have been earned thereon, transferred by the treasurer of the 
commonwealth to the annuity fund established by paragraph (2) of this 
section, and these amounts shall thereby become a part of their assess- 
ments." 

The annuity fund referred to is the teachers' annuity fund. 

Section 3 of Gen. St. 1915, c. 197, provides for the occasions when re- 
funds from the State Employees' Retirement Association may be made, 
and reads, in part, as follows: — ■ 

"Should a member of the association cease to be an employee of the 
commonwealth for any cause other than death, or to enter the service of 
the public schools as defined by paragraph (5) of section one of chapter 
eight hundred and thirty-two of the acts of the year nineteen hundred and 
thirteen, before becoming entitled to a pension, there shall be refunded to 
him. . . ." 

St. 1913, c. 832, § 1 (5), referred to in said Gen. St. 1915, c. 197, § 3, 
defines "public school" as follows: — 

"'Public school' shall mean . . . and also any day school conducted 
under the provisions of chapter four hundred and seventy-one of the acts 
of the year nineteen hundred and eleven." 

The Bristol County Agricultural School was created under authority of 
St. 1912, c. 566. Section 3 of said act provides: — 

"Any school established under this act shall be established and main- 
tained as an approved school, subject to the provisions of chapter four 
hundred and seventy-one of the acts of the year nineteen hundred and 
eleven, and of any amendments thereof, ..." 

It therefore appears that the Bristol Count}^ Agricultural School is a 
public school, within the meaning of that term as used in Gen. St. 1915, 
c. 197, §§1 and 3, and therefore the $232.54 paid into the State Employees' 
Retirement Association by said employee should have been transferred to 
the teachers' annuity fund when he left the service of the Commonwealth 
to enter the employ of the Bristol County Agricultural School, and should 
not have been refunded to him. 

In rendering this opinion I am not unmindful of the fact that in 1924 
the Legislature provided that teachers in the Bristol County Agricultural 
School, the Essex County Agricultural School and the Norfolk County 
Agricultural School shall be deemed to have been public school teachers, 
within the meaning of G. L. c. 32, §§ 6-19, inclusive, during the entire 
time they shall have been employed as teachers in said school. See St. 
1924, c. 281. This act was based upon recommendation No. 4 contained 
in the annual report of the Department of Education submitted to the 
General Court on November 26, 1923, in which it was set forth "that the 
Retirement Board placed too broad an interpretation upon the member- 
ship requirements of the law, and that the county agricultural school 
teachers have been enrolled in error." 



72 P.D. 12. 

It appears from the survey of legislation set forth in this opinion that 
the interpretation excluding employees of the Bristol County Agricultural 
School from the benefits of the teachers' annuity fund was erroneous, and 
that therefore St. 1924, c. 281, in so far as it sought to vahdate the inclu- 
sion of said employees in said system, was unnecessary. 

On July 2, 1929, I rendered an opinion to you which held that teachers 
must pay back assessments and interest thereon which had not been de- 
ducted from their pay, through error, before being granted a retirement 
allowance. That opinion (VIII Op. Atty. Gen. 606) read, in part, as 
follows : — 

"I am informed that in certain cases deductions have not been made 
and that several teachers who, under the law, are required to be members 
of the Association have not paid, either by deduction or otherwise, any 
sums into the annuity fund. In view of the fact that both membership 
and payments are mandatory under the statute, I am of the opinion that 
it is necessary that such teachers pay into the fund an amount equal to 
that which they would have paid had the deductions been properly made." 

It was also stated in that opinion that, — 

"Such a teacher must pay the interest which would have been credited 
on the unpaid assessments, so that he will have to his credit in the fund 
the same amount which he would have had if he had regularly paid the 
assessments as provided by law." 

In my opinion, the same principles which require the payment into the 
teachers' annuity fund of assessments which were not deducted because of 
an error, with interest thereon, apply to the payment into the teachers' 
annuity fund of the S232.54 erroneous refund in question, and I accordingly 
answer both your inquiries in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Savings Banks — Investments — Railroad Bonds. 

In determining whether a railroad has paid dividends in cash to its stock- 
holders, of an amount required by statute, during a fiscal year, the 
time of actual payment to the stockholders is the date to be con- 
sidered with relation to the legality of its bonds for investment. 

June 14, 1932. 
Hon. Arthur Guy, Commissioner of Banks. 

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

"In determining whether a railroad corporation has paid dividends in 
cash to its stockholders in an amount equal to at least four per cent upon 
all its outstanding capital stock during the fiscal year, is it necessary to 
consider the payment of the dividend — 

(a) As of the date it is charged to the income account of the corpora- 
tion; or 

(6) As of the date the dividend is actually received by the stockholder?" 

You state that this question applies to the investment by savings banks 
in bonds of railroads described in G. L. c. 168, § 54, cl. Third, par. (e) (3) ; 
and you further state as follows : — 



P.D. 12. 73 

"Certain railroads pay dividends quarterly. The time of declaring the 
dividend and the actual payment thereof to stockholders varies. One 
railroad, for instance, closes its books on the last day of January, April, 
July and October of each year, and the dividends declared are payable 
to stockholders on the following April 1, July 1, October 1 and January 1, 
respectively. The stockholders of this railroad during 1931 actually re- 
ceived dividends amounting to four and one-half per cent on both the 
preferred and common stocks, but the dividend that was received by the 
stockholders January 1, 1931, of one and one-half per cent, was declared 
as of the last day of October, 1930, and was charged to the 1930 income 
account. The corporation's accounts will show that dividends amount- 
ing to only three per cent were declared for the year 1931, because the 
January 1931 dividend was charged against the October 1930 earnings, 
and the railroad failed to declare the regular October 1931 dividend." 

The law above referred to, being G. L. c. 168, § 54, cl. Third, par. (e) (3), 
as amended, is as follow^s: — 

"Deposits and the income derived therefrom shall be invested only as 
follows : 

Third. . . . 

(e) In the mortgage bonds, as described in any of the following sub- 
divisions of this clause, of any railroad corporation incorporated under 
the laws of any of the United States: 

Provided, that during each of the five fiscal years of such railroad cor- 
poration preceding the date of such investment — 

(3) Such railroad corporation shall have paid in dividends in cash to 
its stockholders an amount equal to at least four per cent upon all its 
outstanding capital stock." 

I assume, from the form of your question, that the fiscal year of the 
railroad in question coincides with the calendar year. If this assumption 
be correct, the sole question for determination is whether during 1931 
the railroad "paid in dividends in cash to its stockholders an amount 
equal to at least four per cent upon all its outstanding capital stock." 
If the dividend paid on January 1, 1931, is taken into consideration in 
determining the amount of dividends paid to stockholders during the 
fiscal year, then four and one-half per cent has been paid, and the bonds 
are still "legals"; but if it cannot be counted as a payment made during 
the fiscal year 1931, because charged to 1930 income, then the dividends 
paid during the fiscal year 1931 amount to only three per cent — with 
the consequent disqualification of the bonds. 

In my opinion, the statutory qualification laid down for railroads outside 
of New England means exactly what it says, — that the dividend must 
have been paid during the fiscal year, and that it is of no concern whether 
it was charged to a prior income account. Your question presupposes a 
requirement that the railroad in question must have earned at least four 
per cent upon all its outstanding stock for each of the five fiscal years 
preceding the date of investment. Undoubtedly this was so prior to St. 
1908, c. 590, which was a codification, revision and amendment of the 
laws relative to savings banks. In the Revised Laws, for instance, chapter 



74 P.D. 12. 

113, section 26, clause third, occur the requirements for investments in 
railroad bonds. Paragraph (a) allowed investments in first mortgage 
bonds of New England railroads which earned and paid dividends of at 
least three per cent for the prior two years; paragraph (c) allowed invest- 
ments in Massachusetts railroads which had paid a dividend of at least 
five per cent per annum for two years; paragraphs (d) to (A-), inclusive, 
allowed investments in certain railroads regardless of their dividend his- 
tory. Clause fourth, paragraphs (c) and (d), allowed investments in a 
group of railroads provided they had earned and paid dividends of at least 
four per cent for ten years prior to investment. It will be noticed that 
for all railroads except those incorporated in Massachusetts the dividends 
not only had to be paid but they had to be earned in a given year. The 
reason there was no requirement that Massachusetts railroads earn their 
dividends must have been because the railroads had been long established 
and had an excellent reputation of many years' standing; and furthermore, 
their returns to the Commissioner of Corporations and Taxation, or the 
corresponding officer at the time, could readily be checked. That the 
Legislature was not unmindful of the prosperity of Massachusetts railroads 
is shown by the report of the committee authorized to suggest changes in 
savings bank laws, appointed under the provisions of chapter 24 of the 
Resolves of 1907. See Legislative Documents, 1908, vol. 6, No. 1280, at 
p. 24, where the committee reports as follows, after dividing railroad bonds 
into three groups, namelj^, — (1) Massachusetts railroads, (2) New Eng- 
land railroads, and (3) other railroads: — 

"In providing for the admission of the bonds of railroads operating in 
any of the United States they have felt it necessary to make much stricter 
requirements than in the case of railroads in New England, where railroad 
conditions are more established. Severe tests have therefore' been pro- 
vided for both the corporation and the bonds themselves. 

That it shall have the highest credit is assured by the requirement: — 

(1) That it shall have paid cash dividends equivalent to four per cent 
on all its outstanding stock for a period of ten years, showing that its 
business is steady and profitable. 

(2) That its interest and rental charges shall not for ten years have con- 
sumed more than twenty per cent of its gross earnings, — a proportion 
sufficiently small to render the margin of profit over operating expenses 
not likely to be seriously impaired by a sudden decrease in the gross 
earnings. This test assures a comfortable surplus, and bars out the 
bonds of a railroad which is straining its resources and perhaps neglecting 
the maintenance of its property in order to pay dividends." 

In accordance with this report St. 1908, c. 590, was passed, in which 
railroad bonds were divided into three groups, Massachusetts railroads, 
New England railroads and other railroads. See St. 1908, c. 590, § 68, 
el. Third, pars, a, b and e. Under this law Massachusetts raih-oads, in 
order to have their bonds "legals," were required to have paid in divi- 
dends in cash not less than four per cent per annum on their outstanding 
stock for five years, and New England railroads the same; and other rail- 
roads were required to have paid in cash for ten years four per cent on 
their outstanding stock and to have had gross earnings for that period 
not less than "five times the amount necessary to pay the interest payable 
upon its entire outstanding indebtedness, the rentals of all leased lines, 
and the interest on all the outstanding indebtedness of railroads controlled 
and operated which is not owned by said corporation." 



P.D. 12. 75 

These requirements have remained substantially the same down to the 
present date. See G. L. c. 168, § 54, as amended. By St. 1931, c. 346, 
§ 1, the ten-year requirement was lowered to five years. 

There cannot be the slightest doubt but that the Legislature, with due 
consideration, abolished the requirement that "other railroads" need not 
have earned the dividend during a particular fiscal year as long as it was 
paid, and as long as their gross earnings complied with G. L. c. 168, § 54, 
cl. Third, par. (e) (4). If the dividend did not have to be earned in 1931, 
it is immaterial that the dividend paid on January 1, 1931, was charged 
to 1930 income account. 

My opinion is further borne out by the fact that under section 54, 
clause fourth, street railways must earn and pa}^ their dividends; under 
clause fifth telephone companies must have paid dividends and had a 
gross income of at least ten million dollars for five years; under clause 
sixth gas, electric or water companies must have had net earnings of a 
certain amount for a certain length of time but need not have paid divi- 
dends; and under clause sixth A (inserted by St. 1926, c. 351, § 1), rela- 
tive to public service companies, by subdivisions (1) and (4) the gross 
earnings must have been so much and net earnings so much, with no re- 
quirement that dividends be paid. 

It is well estabhshed law that in the absence of statutes preventing the 
practice dividends may be paid even though there is no net income in a 
particular year, as, for instance, out of surplus; or even, in peculiar cir- 
cumstances, in the exercise of a wise discretion by the directors, out of 
money borrowed for that purpose, where the net earnings have been spent 
in permanent improvements. 55 A. L. R., p. 39, and cases cited. See 
Morse v. Boston & Maine R.R., 263 Mass. 308, for the general rule that 
dividends may be paid out of earnings or surplus. Even if there are net 
earnings and a surplus, the directors cannot be compelled to pay a divi- 
dend {Joslin V. Boston & Maine R.R., 274 Mass. 551), provided they 
act in good faith. See also 55 A. L. R., p. 8; 76 A. L. R., pp. 886 et seq. 

The criterion laid down by the statute is simply that dividends in cash 
to an extent at least of four per cent be paid during five fiscal years next 
preceding the year of investment, and it is immaterial out of what funds 
the dividends are paid, provided, however, that for the same period the 
gross earnings have equalled at least five times enough to pay the interest 
on the outstanding indebtedness, in accordance with G. L. c. 168, § 54, 
cl. Third, par. (e) (4). 

Answering your specific question, therefore, in determining whether a 
railroad corporation has paid dividends in cash to its stockholders in an 
amount equal to at least four per cent upon all its outstanding capital 
stock during the fiscal year, the payment of the dividend should not be 
considered as of the date it is charged to the income account but as of the 
date it is actually paid to the stockholders. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



76 P.D. 12. 

Credit Unions — Pledge of Securities — Limitation of Withdrawals — Debts. 

The directors of a credit union may pledge securities of the union to secure 

a loan to the union. 
Money so borrowed may be paid to withdrawing members. 
Money so borrowed must be repaid, if there is a liquidation, before dis- 
tribution of assets to stockholders. 

June 16, 1932. 
Hon. Arthur Guy, Commissioner of Banks. 

Dear Sir: — You have requested my opinion upon three questions of 
law relative to credit unions formed under G. L. c. 171, as amended. 
Your first question reads : — 

"Has the board of directors of a credit union authority to pledge the 
securities and resources of the credit union as security for borrowing for 
or in behalf of such credit union?" 

Credit unions are corporations authorized by G. L. c. 171, as amended, 
and are organized under said chapter 171 and the provisions of G. L. c. 172, 
§§ 7-11, relative to the incorporation of trust companies, as far as the 
provisions of said chapter 172 are applicable. These credit unions do not 
derive power to borrow money or pledge assets from the terms of G. L. 
c. 172, made applicable to them, for it is only by virtue of the provisions 
of section 6 of said chapter 172, which is not made apphcable to credit 
unions by said chapter 171, that trust companies formed under said chap- 
ter 172 gain any authority to borrow or pledge, as pointed out in my 
opinion to you dated March 9, 1932 (ante, p. 49). However, G. L. c. 171, 
by section 16 as amended, itself vests in the directors a specific power to 
borrow money in behalf of the credit union by the following language of 
G. L. c. 171, § 16, as amended by St. 1926, c. 273, § 16: — 

"The board of directors, with the approval of the commissioner, may 
borrow money for and in behalf of the credit union." 

There is nowhere in G. L. c. 171, as amended, any prohibition upon the 
pledging of securities or assets of a credit union to secure a loan of bor- 
rowed money, and no expression of a legislative intent as to any implied 
prohibition of such pledging. In the absence of any such prohibitions in 
an applicable statute, the power to borrow money for the benefit of a 
corporation carries with it the implied power to pledge securities of such 
corporation to secure the loan, as stated in my said opinion to you of 
March 9, 1932. 

"The securities and resources of the credit union," to which you refer 
in your first question as being the subject of pledge, I assume to be bonds, 
stocks or notes in which the deposits of members, made under section 5 of 
said chapter 171, have been invested in accordance with section 21 of said 
chapter 171, as finally amended by St. 1926, c. 273, with the accumulations 
thereon. 

I answer your first question in the affirmative. 

Your second question reads : — 

"The second paragraph of G. L. c. 171, § 28, regulates the payment of 
withdrawals, and reads, in part, as follows: 

'The amounts paid in on shares or deposited by members who have 
withdrawn or have been expelled shall be paid to them, in the order of 
withdrawal or expulsion, but only as funds therefor become available and 
after deducting any amounts due from such members to the credit union.' 



P.D. 12. 77 

Question: Is a limitation imposed thereby which restricts withdrawal 
payments to funds accumulated from current receipts, or may such with- 
drawals be paid from the proceeds of a loan or loans?" 

It does not appear that the available funds mentioned in said section 
28, whose provisions, in substance, were contained in section 26 prior to 
amendment by St. 1926, c. 273, were intended to be limited to funds ac- 
cumulated from current receipts. There is no express mention of such a 
limitation in G. L. c. 171, as amended, and it does not appear to have 
been the intent of the Legislature to create one by implication. Since the 
amendment of G. L. c. 171, by St. 1926, c. 273, the authority of the di- 
rectors to borrow money is not restricted, as it was, before such amend- 
ment, by the terms of section 13 (as section 13 then stood), to borrowing 
money solely "for the purpose of lending to members," but the directors 
now have authority to borrow "for and in behalf of the credit union." 
Money so borrowed would appear to be available for the discharge of 
sums payable by a credit union to withdrawing or expelled members. 

Your third question reads : — 

"Section 29 of chapter 171 prescribes the procedure to be followed in 
the event of the voluntary liquidation of a credit union, and reads, in 
part, as follows: 

'A committee of three shall thereupon be elected to liquidate the assets 
of the corporation under the direction of the commissioner, and each share 
of the capital stock, according to the amount paid thereon, shall be en- 
titled to its proportional part of the assets in liquidation after all deposits 
and debts have been paid; . . .' 

Question: Does money borrowed by a credit union under the provisions 
of section 16 constitute a debt which must be satisfied, in case of the liqui- 
dation of the affairs of a credit union, before any distribution of its assets 
is made to depositors or to shareholders?" 

No distinction is made, nor can it be implied from the language of G. L. 
c. 171, as amended, between a debt due for money which a credit union 
has borrowed and any other debt which it may have contracted, with 
relation to preference in payment. 

I answer your thixd question to the effect that in the liquidation of a 
credit union money borrowed constitutes a debt which must be satisfied 
before any distribution of its assets is made to shareholders; but it is not 
required by the provisions of G. L. c. 171, as amended, that such a debt 
should be satisfied before the payment of "deposits." 
Yours very truly, 

Joseph E. Warner, Attorney General. 

License — Lubricating Oil — Stores — Explosives. 

A store is not required to obtain a license to sell lubricating oil which is 
not inflammable or explosive. 

June 20, 1932. 
Gen. Alfred F. Foote, Commissioner of Public Safety. 

Dear Sir : — You request my opinion as to whether stores keeping 
lubricating oil for sale are required to obtain a Hcense, under G. L. c. 148, 
§ 13, as amended by St. 1930, c. 399. 
This section provides : — 



78 P.D. 12. 

"No building or other structure shall, ... be used for the keeping, 
storage, manufacture or sale of any of the articles named in section nine, 
except fireworks, firecrackers and torpedoes, unless the local licensing 
authority shall have granted a license therefor after a public hearing, ..." 

G. L. c. 148, § 9, as amended by St. 1930, c. 399, provides that the de- 
partment shall make rules for the keeping or sale of the following articles, — 

"gunpowder, dynamite, crude petroleum or any of its products, or ex- 
plosive or inflammable fluids or compounds, tablets, torpedoes or any 
explosives of a like nature, or any other explosives, fireworks, firecrackers, 
or any substance having such properties that it may spontaneously, or 
acting under the influence of any contiguous substance, or of any chemical 
or physical agency, ignite, or inflame or generate inflammable or explosive 
vapors or gases to a dangerous extent, ..." 

The argument of the stores, to the effect that no license is required, is, 
that although lubricating oil is a product of crude petroleum it is in fact 
neither inflammable nor explosive, and therefore does not fall within the 
intended scope of chapter 148, which is entitled "Fire Prevention." It 
is not for me to attempt to determine whether the oil to which you refer 
is or is not inflammable or explosive. My opinion must be limited to the 
question of whether the statute requires a license, assuming that the oil 
is not inflammable or explosive. 

The provision, now contained in said section 9, for regulating the use of 
crude petroleum or any of its products as such was first enacted in 1904. 
Prior to that time cities and towns had authority to make regulations 
relative to the storage and sale of "camphene or any similar explosive or 
inflammable fluid" (R. L. c. 102, § 94), and of gunpowder or other ex- 
plosive (R. L. c. 102, §§ 93, 97 and 98). There was also a statute pro- 
viding that no building could be used for the storage, keeping, manufac- 
ture, or refining of "crude petroleum or any of its products" without a 
license (R. L. c. 102, § 114); but there was no provision for regulating the 
storage or sale of any products of crude petroleum except so far as they 
might be inflammable or explosive fluids or compounds. By St. 1904, 
c. 370, the power to regulate the "keeping, storage, use, manufacture, or 
sale of gunpowder, dynamite, or other explosive and inflammable fluids" 
was transferred from the cities and towns to the Fire Marshal's depart- 
ment of the District PoHce (§1). It was also provided (§ 2) that the Fire 
Marshal's department might make regulations for the keeping, etc., of 
"gunpowder, dynamite, or other explosives, crude petroleum or any of its 
products, or other inflammable fluids"; and section 3 provided that no 
building should be used for the keeping, etc., "of any of the articles named 
in section two" without a license. The provision requiring licenses for 
the use of buildings (now § 13 of G. L. c. 148) was thus made co-extensive 
with the provision for making regulations (now § 9 of G. L. c. 148). The 
transposition of the words "crude petroleum or any of its products" from 
the provision relating to the use of buildings to the provision relating to 
regulations was merely incidental to that change. In my opinion, it was 
not intended in any way to increase the number of those things which 
were subject to regulation. Neither was it intended to give to the Fire 
Marshal's department the power to make rules relating to something not 
involving a fire hazard. Cj. Eawdiyig v. Fire Marshal, 272 Mass. 307. 
It may be noted that the use of the words "or other inflammable fluids," 
following the reference to petroleum or any of its products, is confirmatory 



P.D. 12. 79 

of this view. In the hght of this history it is possible, I think, to construe 
the words "crude petroleum or any of its products" (as they now appear 
in section 9 of G. L. c. 148) as being confined to such products as retain 
some of the inflammable or explosive qualities of crude petroleum, and, if 
possible, this construction should be placed upon the words, for, accord- 
ing to my understanding, there are (and doubtless were in 1904 when the 
change above noted was made) a number of products of crude petroleum, 
such as paraffin wax (for jelly glasses), paraffin candles, vaseline, albolene 
(a liquid vaseline used in various sprays, nose drops, and other medicines), 
and various mineral oils, which are not regarded as in any sense inflam- 
mable or explosive, within the meaning of said section 9, and which are 
sold in drug stores and other stores everywhere. To require a license in 
all these cases would seem to involve a burden which I believe was never 
intended by the Legislature. The practice has always been, as I under- 
stand it, not to require hcenses in these cases. This long continued 
practice, especially if antedating the act of 1904, is of importance in 
construing the act. 

I therefore advise you that section 13 of G. L. c. 148 does not require 
that a store obtain a license to sell lubricating oil, provided it is agreed 
that such oil is in fact not an inflammable or explosive. If such oil is 
inflammable or explosive, then a license is required, irrespective of the 
amount kept or the manner of keeping, for the statute bases no exception 
upon these considerations. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

State Treasurer — Issue of Notes — Appropriation. 

Certain notes may not be issued, lacking legislative authority for pay- 
ment, without appropriation. 

June 22, 1932. 

Hon. Charles F. Hurley, Treasurer and Receiver General. 

Dear Sir : — You request my opinion as to whether, if the remaining 
amounts authorized by St. 1931, cc. 236 and 268, are borrowed in 1932, 
you should ehminate any maturity in 1932 and distribute equally the 
amount borrowed under chapter 236 through the years 1933 to 1936, 
inclusive, and the amount borrowed under chapter 268 through the years 
1933 to 1935, inclusive. 

Chapter 268 is entitled "An Act providing a two year program for the 
acceleration of building construction, in order to alleviate the present 
unemployment emergency, to be financed by the issue of four year notes." 
Section 3 of said act reads : — 

"For the purposes of this act, the state treasurer, upon the request of 
the department heads having charge of construction authorized hereby, 
shall borrow on the credit of the commonwealth such sums, not exceeding, 
for any particular work of construction aforesaid, the amount authorized 
hereby to be expended therefor, and not exceeding, in the aggregate, two 
million seven hundred fifty-nine thousand dollars, as may from time to 
time be required, and may issue notes of the commonwealth, carrying such 
rates of interest as the state treasurer may fix, with the approval of the 
governor and council. Such notes shall be payable not earlier than one 
year after the effective date of this act nor later than November thirtieth, 



80 P.D. 12. 

nineteon hundred and thirty-five, and their maturities shall be so arranged 
that the payments of principal on account of such notes in each of the 
four fiscal years ending November thirtieth, nineteen hundred and thirty- 
five will be equal, as nearly as may be. Such notes shall be signed by the 
state treasurer, approved by the governor and countersigned by the 
comptroller. All sums necessary to meet payments of principal and 
interest on account of said notes shall be paid from the general fund or 
ordinary revenue of the commonwealth." 

Chapter 236 is entitled "An Act providing for continuing and acceler- 
ating the development of the State Prison Colony, and authorizing the 
issue of notes therefor." Section 2 is in the same form as section 3 of 
chapter 268, except that the last maturity is made 1936 instead of 1935. 

The question arises solely because of the fact that the legislative session 
has ended without any appropriation having been made for the payment 
of notes to be issued under these acts and maturing in 1932, items pro- 
viding for such appropriations having been vetoed. 

In my opinion, no notes may properly be issued maturing in 1932. 
Without an appropriation, the Treasurer would have no authority to 
pay them. G. L. c. 29, § 18, provides: — 

"Except as otherwise provided, no money shall be paid by the com- 
monwealth without a warrant from the governor drawn in accordance 
with an appropriation then in effect, ..." 

It does not appear that it has been "otherwise provided" that the 
notes here in question may be paid without an appropriation. The 
authorization of the issue cannot in itself amount to a provision that the 
notes may be paid without appropriation. Nor is the authority to pay 
without an appropriation to be found in the provision that, — "All sums 
necessary to meet payments of principal and interest on account of said 
notes shall be paid from the general fund or ordinary revenue of the 
commonwealth." If the Legislature had intended that payments be 
made without an appropriation it could easily have said so in unam- 
biguous language, and would hardly have failed to say so. Moreover, 
the Legislature has itself, by making appropriations under these statutes, 
given recognition to the necessity. It is implicit in the authority given 
by chapters 236 and 268 to issue notes that there be at least a prospect 
of an appropriation to take care of them. The. issue is subject to other 
not inconsistent provisions of law. 

The question remains whether, under these circumstances, authority 
may be found in the acts to make maturities begin in 1933. It may be 
argued that the provision that the maturities in the years specified shall 
be equal "as nearly as may be" would authorize such a course, in view of 
the fact that under existing circumstances no notes maj- be made payable 
in 1932. But, in my opinion, the words quoted were inserted solely in 
view of the probability that the amount borrowed might not be exactly 
divisible among the years specified. It is the plain purpose of the acts 
that the burden of paying the notes should not be deferred to the future, 
except to the limited extent stated. It is certain that the Legislature 
intended that the year 1932 should bear its share of the burden. In my 
opinion, therefore, you have no authority to borrow the amount required 
upon notes of which the earliest maturities are fixed in 1933. 

I have answered your question. I would add, however, that, in my 
opinion, the difficulty may be partly met by borrowing only that portion 



P.D. 12. 81 

of the amounts required which is allocable to 1933 and the succeeding 
years, and by distributing the maturities of the amounts so borrowed 
equally among those years. The Treasurer is authorized to borrow such 
sums, not exceeding the maximum stated, as are requested by the heads 
of the departments. If, therefore, you take the amount requested by a 
department head, and deduct the amount attributable to 1932, I see 
nothing inconsistent with the intent of the acts in borrowing the balance 
and dividing the maturities among the years specified, beginning with 
1933. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement System — Teacher — Length of Service. 

Mode of calculating length of a teacher's service, under G. L. c. 32, 
§ 10 (8), discussed. 

June 27, 1932. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir : — I am in receipt of a communication from you which reads, 
in part, as follows: — 

"The Board has before it the case of a teacher who is permanently dis- 
abled, whose service has been as follows: Greenfield, September, 1911, to 
June, 1912; and Springfield, September, 1912, to date. 

She has had the following periods of absence: February 7, 1921, to 
June 30, 1921; and December 10, 1931, to date. 

Although she has been absent since December 10, 1931, there was an 
allowance for sick leave through Januar}^, 1932, and we received her regu- 
lar assessments from Springfield for the months of December, 1931, and 
January, 1932. 

In your opinion, has this teacher the twenty years of service required 
for retirement on account of permanent disability, under G. L. c. 32, § 10 
(8)?" 

G. L. c. 32, § 10 (8), is the applicable statute, and reads as follows: — 

''Any member of the association whose employment by the common- 
wealth and service in the public schools amount to twenty or more j^ears, 
the last five years of which are consecutive, and who, before attaining the 
age of sixty, becomes permanently incapable of rendering satisfactory 
service as a teacher by reason of physical or mental disability, may, with 
the approval of the board, be retired by the employing school committee 
or other employer as provided in paragraph (1)." 

Whether a period of absence by a teacher from his employment is a 
severance of his "service in the public schools," as the quoted words are 
used in said paragraph (8), is largely a question of fact, depending upon a 
variety of circumstances which may assist in determining the nature and 
character of the absence. For that reason no general rule of law in this 
respect can be stated which may be applied to determine the effect of all 
absences alike. The facts relative to particular instances of absence must 
be known and considered before a determination can be made, as a matter 
of law, as to how, if at all, the period of an absence of a school-teacher 
from his employment will affect the computation of his total period of 
service in the public schools. 

I must confine myself, therefore, to answering the above question 
which you have addressed to me in your communication, and must refrain 



82 P.D. 12. 

from attempting to express an opinion upon certain general inquiries 
which you have made relative to absences of teachers, with regard to 
which no specific facts are set forth. 

With reference to the particular question before me, based upon the 
facts as you have stated them in the above-quoted portion of your com- 
munication, I am of the opinion that the teacher referred to has had 
"service in the public schools amounting to twenty or more years," and 
that she may be retired under the provisions of said paragraph (8). 

The period of twenty years' service in the public schools, demanded 
by the statute as a prerequisite to retirement under said paragraph (8), 
is not required to be a consecutive period. It is therefore immaterial in 
this instance, in computing the teacher's total period of service, whether 
her absence from February 7, 1921, to June 30, 1921, was such an absence 
that the time involved therein should or should not be taken into account 
in computing such total period; for, since she entered the service in 
September, 1911, this teacher, leaving out of account the time from 
February 7, 1921, to June 30, 1921, had served nineteen years, ten months 
and twenty days up to December 10, 1931, when her second absence 
began. As to this second period of absence, you state that the facts are 
that it was occasioned by illness, that the school committee which em- 
ployed the teacher, in its discretion, paid her salary throughout Decem- 
ber, 1931, and January, 1932, and that during those two months retire- 
ment assessments were deducted in the usual course. From these facts 
it is proper to draw the inference that the teacher's absence during the 
latter part of December, 1931, and the whole of January, 1932, was not 
such an absence as removed her from her employment, though not phys- 
ically present at her school, and therefore did not interrupt her ''service 
in the public schools." This being so, her total period of such service, 
beginning in September, 1911, assuming that it ended with the close of 
January, 1932, and was reduced by the time between February 7, 1921, 
and June 30, 1921, was twenty years and ten days. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Transient Vendor — License — Agent. 

Mode of determining whether a corporation is a transient vendor under 

G. L. c. 101, discussed. 
The agent of a corporation, and not the corporation itself, is to receive 
the license for transient vending. 

June 30, 1932. 
Mr. Francis Meredith, Director of Standards. 

Dear Sir: — In a recent letter you have set forth the following facts: — 

"A domestic corporation engages floor space in an established depart- 
ment store for the purpose of conducting therein the retail sale of gro- 
ceries, by its agent, commencing business subsequent to April first of 
the current year." 

You have asked my opinion in relation to the law applicable thereto 
in the following two questions : — 

"G. L. c. 101, § 1, as amended, provides as follows: 
'"Transient vendor" for the purposes of this chapter shall mean and 
include any person, either principal or agent, who engages in a tempo- 



P.D. 12. 83 

rary or transient business in the commonwealth, either in one locahty or 
in travehng from place to place selling goods, wares or merchandise. 

"Temporary or transient business" for the purposes of this chapter 
shall mean and include any exhibition and sale of goods, wares or mer- 
chandise which is carried on in any tent, booth, building or other struc- 
ture, unless such place is open for business during usual business hours 
for a period of at least nine months in each year.' 

Does such person come within the provisions of the statutory defini- 
tion of section 1, as above quoted, as said business will not be conducted 
during the usual business hours for a period of at least nine months in 
this calendar year; or does the fact that he may be the agent of a cor- 
poration, foreign or domestic, exempt him from the provisions of the 
law?" 

Whether or not a person is a transient vendor, within the meaning of 
section 1 of G. L. c. 101, as amended, is primarily a question of fact, to 
be determined by an examination of all the material circumstances con- 
nected with his engagement in a particular business. The Attorney Gen- 
eral does not pass upon questions of fact. 

As a matter of law, however, the fact that such an agent is an agent for 
a corporation does not place him outside the definition of "transient 
vendor" as above set forth. In view of the opinion of the Supreme Ju- 
dicial Court in Commonwealth v. Newhall, 164 Mass. 338, it must be as- 
sumed that a corporation is included within the meaning of the word 
"person" in the definition contained in said G. L. c. 101, § 1, by virtue 
of the provisions of G. L. c. 4, § 7, cl. Twenty-third; and that therefore 
its agent is likewise included within such definition, and when conducting 
a "temporary or transient" business is himself within the requirements 
of the statute relative to being licensed. 

These requirements are to be found in section 3 of said chapter 101, as 
amended, which section provides:- — 

", . . It shall not authorize more than one person to sell goods, wares 
or merchandise as a transient vendor either by agent or clerk or in any 
other way than in his own proper person, but a licensee may have the 
assistance of one or more persons in conducting his business who may 
aid him but not act for or without him." 

As a matter of law it is immaterial, in determining whether the business 
engaged in by the agent is a "temporary or transient" business, as those 
words are used in said section 1, that, as you state in your said questions, 
the business in which the said agent engaged "will not be conducted during 
the usual business hours for a period of at least nine months in this calendar 
year." 

In my opinion, the words "nine months in each year," as used in the 
definition of "temporary or transient business," in said section 1, do not 
denote a calendar year. 

I am aware that it is provided in G. L. c. 4, § 7, that, — 

"In construing statutes the following words shall have the meanings 
herein given, unless a contrary intention clearly appears: 

Nineteenth, . . . 'year', a calendar year." 

It clearly appears, however, from the context of the instant statute 
that the Legislature did not intend that the word "year" should, as used 



84 P.D. 12. 

in said section 1 of G. L. c. 101, have the meaning of calendar year. To 
have intended that it should have such meaning would have been to create 
a purely arbitrary rule by which a permanent business established subse- 
quent to April first in any year would have been classified as a temporary 
or transient business during the first nine months of its existence ; and the 
person conducting it would have been obliged to pay a license fee for such 
period, although such business was not in fact temporary. To have 
enacted a measure having such a meaning would have been in effect as 
arbitrary a use of legislative power as an endeavor to make white black 
by legislative fiat. It is not to be presumed that the General Court acted 
in such a manner in framing the instant statute; it is rather to be con- 
strued in such a fashion, if possible, as will give it a reasonable and fair 
meaning. That a reasonable meaning in connection with the purpose of 
the whole statute was intended by the Legislature is made plain by the 
fact that in G. L. c. 101, § 3, as amended, the General Court has provided 
that the license which is to be issued to the transient vendor "shall expire 
one year Jrom the date thereof." If the Legislature had intended that 
the word "year," as employed in section 1, should have the meaning of 
calendar year, they could not have done otherwise than provide that the 
license to conduct the business should expire at the close of the calendar 
year in which it was issued; instead of which, they have plainly stated 
that it shall expire one year from the date of issue — a provision totally 
at variance with an intent to define transient business as a business carried 
on for a period of at least nine months in a calendar year. The true 
meaning of the phrase employed in said section 1 is that a temporary or 
transient business is one that is not carried on for at least nine months in 
each year of the business' existence. So that, if the business begins on 
June 1, 1932, in order not to fall within the category of a temporary or 
transient business it must be kept open for at least nine months prior to 
June 1, 1933. In like manner, the local or town license provided for by 
section 5 of said chapter 101, as amended, is not limited to a period wdthin 
the calendar year of its issue, but may be in force under its terms from 
May 1 of 1932, to April 1 of 1933, for example. 

The instant statute is not a tax statute. It purports to be, and is, 
passed under the police power of the Commonwealth for the purposes, as 
was said in Commonwealth v. Newhall, 164 Mass. 338, 340 — 

"of preventing and punishing fraud in sales by itinerant vendors, and an 
examination of the statutes makes it appear that such is their real design, 
and that the provisions for State and local licenses are merely incidental 
means of compensating the State and the localities in which the itinerant 
vendors ply their business for the expenses of necessaiy State and local 
supervision." 

This being so, the idea of a possible intent on the part of the Legislature 
to employ "year," in said section 1, as meaning calendar year, in spite of 
the other obvious evidences of a contrary intent already noted, is further 
negatived. 

Again, in Commonwealth v. Crowell, 156 Mass. 215, 216, the court said, 
with relation to an earlier form of the instant statute substantially 
similar in all material respects : — 

"The object of the statute would seem to be to protect the public from 
the imposition liable to be practised upon it by itinerant vendors who are 
not hawkers or pedlers because hiring, leasing, or occupying a building for 



P.D. 12. 85 

their business, but who sell temporarily or transiently in one place, or in 
travelling from place to place, goods, wares, or merchandise, and who 
might naturally be supposed to be free, to some extent at least, from the 
restraints and influences inducing fair and honest dealing which apply to 
persons established permanentl}^ in trade in a given locality. The statute 
applies to residents and non-residents, and is not, as we construe it, de- 
signed or calculated to prevent fair and free competition, but only to pro- 
tect the public against fraud, and to place the traffic under what the 
Legislature, having regard to the character of the business, deems whole- 
some restraints. It comes within what is termed the police power, and 
stands on the same ground as the acts relating to hawkers and pedlers, 
auctioneers, pawnbrokers, and others, of which there are numerous ex- 
amples." 

The fact to which you allude in your said questions, namely, that a 
domestic corporation "engages floor space in an established department 
store" for the purpose of having its agent engage in its business in such 
space, is not, as a matter of law, determinative of the question of whether 
or not the business carried on in such space is "temporary and tran- 
sient" or permanent. Such fact is merely important if it aids, in con- 
nection with all the other surrounding circumstances, in determining the 
ultimate question of fact for decision, namely, whether the person en- 
gaging in the particular business under consideration is a transient ven- 
dor. Nor is the fact that a domestic corporation may have a permanent 
place of business elsewhere than in such space itself determinative of the 
said ultimate question of fact, for the Supreme Judicial Court has said, 
in Cotnmonwealth v. Crowell, 156 Mass. 215, 217: — 

"A party may be engaged in selhng temporarily or transiently in one 
city or town, while having a permanent place of business in another. 
So far as he is engaged in selling temporarily or transiently, he comes 
within the prohibition of the statute, without any regard to the fact 
that he is also carrying on an established and permanent business else- 
where. Whether his whole business is selling temporarily or transiently, 
or whether he does it more or less frequentl}^ in connection with a per- 
manent business at a fixed place or places, does not matter. He comes 
in either case within the statute." 

It is apparent from the foregoing language of the court that it is not 
the place or nature of the general business of the corporation which is 
of primary importance, but rather the nature of the particular business 
in a given town in which it is engaging, and which is under consideration, 
which must be examined in order to determine the latter's permanent or 
transient character and the permanent or transient character as a vendor 
of the person engaging in such locahzed business. 

You have also asked my opinion upon a third question, as follows: — 

"Can a license be issued to a corporation rather than to the individual 
who may be conducting the business in behalf of the corporation?" 

G. L. c. 101, § 3, as amended, with relation to the Hcense which is to 
be issued to a transient vendor, provides : — 

"... Such license shall contain a copy of the application therefor and 
of any statements required under section seven, and shall not be trans- 
ferable. It shall not authorize more than one person to sell goods, wares 



86 P.D. 12. 

or merchandise as a transient vendor either by agent or clerk or in any 
other way than in his own proper person, but a hcensee may have the 
assistance of one or more persons in conducting his business who may 
aid him but not act for or without him." 

The Hmitations placed upon the authority conferred upon the licensee 
by the license are of such a character that a corporation could, from its 
nature, not act in compliance therewith. Such license, therefore, cannot 
be issued to a corporation. The agent, however, who engages in the 
temporary or transient business of such a corporation can and must be 
hcensed. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Commonwealth — Buildings — Inspection — Licenses. 

Laws relative to the inspection and licensing of plumbing and wiring 
have no application to a building of the Commonwealth placed under 
the full jurisdiction of a Commission while under construction. 

July 11, 1932. 

Hon. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir: — You have in effect requested my opinion upon the ques- 
tion of whether buildings erected by the Commonwealth on the grounds 
of the Brockton Agricultural Society, under the provisions of St. 1931, 
c. 413, are subject to inspection and licensing by the local plumbing and 
wire inspectors of the city of Brockton. 

St. 1931, c. 413, provides that "such sums as may be appropriated 
therefor by the general court" may be expended "for the purpose of 
constructing a suitable and adequate state building upon the grounds 
now owned by the Brockton Agricultural Society in the city of Brockton," 
this expenditure to be "under the direction of the chairman of the com- 
mission on administration and finance and the commissioner of agricul- 
ture"; and "all contracts for the construction of said building shall be 
subject to approval by the governor and council." 

G. L. c. 142, contains the law in respect to supervision of plumbing. 
It provides, in section 11, that, — 

"Said inspectors of plumbing shall inspect all plumbing in process of 
construction, alteration or repair for which permits .are granted within 
their respective cities and towns." 

Section 13 provides that each city and town shall adopt regulations or 
by-laws, which shall provide that "no plumbing shall be done, except 
to repair leaks, without a permit first being issued therefor, upon such 
terms and conditions as such cities or towns shall prescribe." 

The duties of wire inspectors are contained in G. L. c. 166, § 32, which 
provides, in part : — 

"A city shall, by ordinance, designate or provide for the appointment 
of an inspector of wires . . . Such inspector shall supervise every wire 
over or under streets or buildings in such city or town and every wire 
within a building designed to carry an electric light, heat or power cur- 
rent; shall notify the person owning or operating any such wire whenever 



P.D. 12. 87 

its attachments, insulation, supports or appliances are improper or unsafe, 
or whenever the tags or marks thereof are insufficient or illegible; shall, 
at the expense of the city or town, remove every wire the use of which 
has been abandoned, and every wire not tagged or marked as herein- 
before required, and shall see that all laws and regulations relative to 
wires are strictly enforced." 

The Legislature has entrusted the construction of the buildings in ques- 
tion to your Commission, subject to the approval of plans by the Governor 
and Council. In carrying out such construction your Commission acts 
as the agent of the Commonwealth, and is exercising domination over 
property of the Commonwealth. The general law made for the regula- 
tion of citizens in regard to the inspection and licensing of plumbing and 
wiring must, under general principles of statutory interpretation, be held 
to be subordinate to the special statute placing in your Commission 
complete jurisdiction over the construction of these buildings and the 
regulation of the use of this State property, unless there is express provi- 
sion to the contrary. No such special provision to the contrary is to be 
found in the applicable statute. It is not to be assumed that, in the 
absence of such a special provision, the Legislature intended to give to 
the local licensing or inspecting officials authority to control or interfere 
with the reasonably necessary efforts of your Commission to perform its 
duty as the agent of the Commonwealth. Teasdale v. Newell & Snowling 
Construction Co., 192 Mass. 440, 443; I Op. Atty. Gen. 290; II ibid. 56 
and 399. 

I accordingly answer your question in the negative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Notes issued hy the State Treasurer — General Revenue — Payment without 
Appropriation. 

Under St. 1931, cc. 236 and 268, providing for the issuance of notes to be 
signed by the State Treasurer, approved by the Governor and counter- 
signed by the Comptroller, to be repaid out of general revenue, it is 
not necessary, prior to the issuance of such notes, that the Legis- 
lature should have appropriated money for their repayment. It is 
sufficient that there should be a prospect of an appropriation, and, 
assuming such prospect, the Comptroller may properly countersign 
said notes. 

Aug. 3, 1932. 
Hon. Walter S. Morgan, Comptroller. 

Dear Sir : — Certain notes issued by the Treasurer, with the approval 
of the Governor and Council, under St. 1931, cc. 236 and 268, have been 
presented to you to be countersigned, as required by said acts. These 
notes are payable November 30th of this year, and represent the portion 
of the total amounts to be borrowed properly allocable to the present 
year, under the provisions of said acts. 

You request my opinion as to whether you have authority to counter- 
sign these notes, in view of the fact that no appropriation was made in 
the general appropriation act of this year for the payment of these notes, 
and that the Legislature has been prorogued. 
Section 3 of said chapter 268 reads : — 



88 P.D. 12. 

"For the purposes of this act, the state treasurer, upon the request of 
the department heads having charge of construction authorized hereby, 
shall borrow on the credit of the commonwealth such sums, not exceeding, 
for any particular work of construction aforesaid, the amount authorized 
hereby to be expended therefor, and not exceeding, in the aggregate, two 
million seven hundred fifty-nine thousand dollars, as may from time to 
time be required, and may issue notes of the commonwealth, carrying 
such rates of interest as the state treasurer may fix, with the approval of 
the governor and council. Such notes shall be payable not earlier than 
one year after the effective date of this act nor later than November 
thirtieth, nineteen hundred and thirty-five, and their maturities shall be 
so arranged that the payments of principal on account of such notes in 
each of the four fiscal years ending November thirtieth, nineteen hundred 
and thirty-five will be equal, as nearly as may be. Such notes shall be 
signed by the state treasurer, approved by the governor and counter- 
signed by the comptroller. All sums necessary to meet payments of 
principal and interest on account of said notes shall be paid from the 
general fund or ordinary revenue of the commonwealth." 

Section 2 of said chapter 236 is in the same form as section 3 of chapter 
268, except that the last maturity is made 1936 instead of 1935. 

In an opinion dated June 22nd of this year {ante, p. 79) I advised the 
Treasurer that he would have no authority to pay notes issued under 
these acts without an appropriation, and that, accordingly, he should not 
issue notes for the present year unless "there be at least a prospect of an 
appropriation to take care of them." 

The Treasurer has since been informed that a special session of the 
Legislature is to be called for the purpose, among others, of making pro- 
vision for the payment of these notes at maturity, and, accordingly, he 
has determined that there is a prospect of an appropriation being made, 
and has issued the notes. I am officially informed that such a session is 
to be called. Under these circumstances, I cannot say that the Treasurer 
is not authorized to issue the notes. It is true that the acts provide that 
the principal and interest shall be paid from "the general fund or ordinary 
revenue of the commonwealth." But I am advised by the Treasurer 
that the notes will be so paid. I must assume that there is reasonable 
ground for his expectation. The Treasurer is directed by the acts to 
borrow such sums upon the request of the department heads "as may 
from time to time be required" to finance the work referred to. The 
money, as I am informed, is required now. In my opinion, the provision 
that the notes shall be paid from the general fund or ordinary revenue is 
not to be construed as meaning that no appropriation for the notes may 
be made except at the regular session of the Legislature. The require- 
ment might conceivably not be anticipated at that time. 

Accordingly, I advise you that, in my opinion, you may properlj^ counter- 
sign the notes. 

Very truly yours, 

Joseph E. Waener, Attorney General. 



P.D. 12. 89 

Purchasing Bureau — Supplies, Office Furniture, Etc. — Armories. 

Approval by the Governor for the purchase of supphes, office furniture, 
equipment, etc., for a pubHc building constructed under authority of 
a special act, is not needed, as authority for such purchases, by virtue 
of G. L. c. 30, §§ 51 and 52, is vested in the purchasing agent. 
Contracts for the purchase of supplies, office furniture and equipment for 
armories require the approval of the Governor, by virtue of G. L. 
c. 6, § 17. 

Aug. 3, 1932. 
Brig. Gen. John H. Agnew, The Adjutant General. 

Dear Sir: — You have requested my opinion as to whether or not, 
under the provisions of a section appearing in various acts making ap- 
propriations for maintenance of various departments, boards, etc., of the 
Commonwealth, reading as follows, — 

"No payment shall be made or obligation incurred under authority of 
any special appropriation made by this act for construction of public 
buildings or other improvements at state institutions until plans and 
specifications have been approved by the governor, unless otherwise pro- 
vided by such rules and regulations as the governor may make." — 

it is necessary for a department to obtain prior approval of the Gov- 
ernor to purchase supplies, office furniture and equipment for a building 
constructed under authority of a special appropriation. 

In my opinion, it would be unnecessary for a department to obtain 
prior approval of the Governor under that section before purchasing 
supplies, office furniture or equipment. In this connection, I call your 
attention to G. L. c. 30, §§51 and 52, added by St. 1923, c. 362, § 52, 
which read as follows : — 

"Section 51. All materials, supplies and other property, except legis- 
lative or military supplies, needed bj^ the various executive and adminis- 
trative departments and other activities of the commonwealth shall be 
purchased by or under the direction of the purchasing bureau in the 
manner set forth in the following section, and sections twenty-two to 
twenty-six, inclusive, of chapter seven. Said bureau shall be furnished 
with such general supply appropriations, in addition to its departmental 
supply accounts, as may be necessary in order to place blanket contracts 
or advance orders and thereby take advantage of favorable market con- 
ditions. 

Section 52. No supplies, equipment or other property, other than for 
legislative or military purposes, shall be purchased or contracted for by 
any state department, office or commission unless approved by the state 
purchasing agent as being in conformity with the rules, regulations and 
orders made under section twenty-two of chapter seven. Such approval 
may be of specific or blanket form at the discretion of the state purchasing 
agent." 

You further state that, in view of the fact that the section first above 
quoted is similarly worded each year and specifies "construction . . . 
or other improvements," it has been contended that the quoted words 
apply only to actual construction or additions to existing buildings and 
do not apply to the movable contents thereof, such as furniture, supplies, 
etc. I am of the opinion that the statute is properly so construed; but 
would point out that an authorization for the construction of public build- 
ings or other improvements at State institutions, or the appropriation 



90 P.D. 12. 

therefor, would not carry with it the right to contract for furniture, sup- 
pHes and the hke, but that additional authority would be required to 
make such purchases. 

G. L. c. 33, § 40, as amended by St. 1924, c. 465, provides that the 
Armory Commissioners shall erect, furnish and equip certain armories, 
but G. L. c. 6, § 17, as amended by St. 1931, c. 452, § 2, provides that the 
Armory Commissioners and certain other officers "shall serve under the 
governor and council, and shall be subject to such supervision as the gov- 
ernor and council deem necessary or proper"; so that, in my opinion, any 
contract made by the Armory Commissioners for the purchase of supplies, 
office furniture or equipment for a building constructed by them should 
have the approval of the Governor and Council. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Corporations — Shares ivithout Par Value — Par Value Shares — Fees. 

If a corporation having shares without par value cancels such shares and 
issues shares with par value instead, the capital remaining the same, 
the minimum fee, under G. L. c. 156, § 55, is payable, rather than a 
fee based upon an increase of capital stock, under G. L. c. 156, § 54. 

Aug. 3, 1932. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir : — You state that a corporation having shares without par 
value proposes to cancel such shares and issue shares with par value in- 
stead, the capital of the corporation remaining the same; and you request 
my opinion as to whether a fee based upon an increase of capital stock 
should be demanded under section 54 of G. L. c. 156, or whether only 
the minimum fee provided for in section 55 is payable. I do not under- 
stand that your question relates in any way to the validity of the pro- 
posed issue. 

Said section 54, as amended by St. 1928, c. 360, § 2, is as follows: — 

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

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

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

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

In the present case, if any fee were collectible under this section it 
would be under the first paragraph. But the increase referred to in this 
paragraph is an increase in "capital," i.e., in the capital assets of the 
corporation. Hood Rubber Co. v. Commonwealth, 238 Mass. 369. Cf. last 



P.D. 12. 91 

paragraph of section 54. Here, however, the capital remains the same. 
No excise is, therefore, assessable under section 54, and the only fee col- 
lectible is the minimum fee provided for under section 55. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Weekly Payment of Wages — Post-office Building on Government Land — 

Jurisdictio7i of the Commonwealth. 
G. L. (Ter. Ed.) c. 149, § 148, which provides for the weekly payment of 
wages, has no application to a contractor engaged in the erection of 
a post-office building within the limits of a city, upon land owned by 
the United States, because said building is not within the jurisdic- 
tion of the Commonwealth, o io moo 

Sept. 12, 1932. 

Hon. Edwin S. Smith, Commissioner of Labor and Industries. 

Dear Sir: — You request my opinion as to whether G. L. (Ter. Ed.) 
c. 149, § 148, providing for the weekly payment of wages, applies to a 
contractor engaged in the erection of a post-office building within the 
limits of one of our cities, upon land owned by the United States. 

Said section 148 provides : — 

"Every person engaged in carrying on in a city, a hotel or club, and 
every person engaged in carrying on within the commonwealth a theater, 
moving picture house, dance hall, factory, workshop, manufacturing, 
mechanical or mercantile establishment, mine, quarry, railroad or street 
railway, or telephone, telegraph, express, transportation or water com- 
pany, or in the erection, alteration, repair or removal of any building or 
structure, or the construction or repair of any railroad, street railway, 
road, bridge, sewer, gas, water or electric light works, pipes or lines, and 
every contractor engaged in the business of grading, laying out or caring 
for the grounds surrounding any building or structure, shall pay weekly 
each employee engaged in his business, and every person employing 
musicians, janitors, porters or watchmen shall pay weekly each such 
employee, the wages earned by him to within six days of the date of said 
payment if employed for six days in a week or to within seven days of 
the date of said payment if employed seven days in the week, ..." 

As the statute is drawn, the obligation of a contractor is made to de- 
pend solely upon the erection of, or doing work upon, a building within 
the Commonwealth. This means a building within the jurisdiction of the 
Commonwealth. Mitchell v. Tibbetts, 17 Pick. 298. The land in question 
is owned by the United States Government. You do not state when or 
how the land in question was acquired. I do not consider, therefore, the 
possible effect of any special reservation which might perhaps be the 
basis for argument that jurisdiction which would cover the regulation of 
labor was retained by the Commonwealth. Apart from some such special 
reservation, the Commonwealth has no jurisdiction. G. L. (Ter. Ed.) 
c. 1, § 7; Mitchell v. Tibbetts, 17 Pick. 298; Opinion of the Justices, 1 Met. 
580; Newcomb v. Rockport, 183 Mass. 74; Surplus Trading Co. v. Cook, 
281 U. S. 647. 

Accordingly, it is my opinion (with the possible quahfication above 
stated) that the statute, G. L. (Ter. Ed.) c. 149, § 148 does not apply to 
the case stated by you. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



92 P.D. 12. 

Labor — Public Work — Contractor — Hours of Work. 

G. L. (Tcr. Ed.) c. 149, § 33, does not permit a contractor for public work 
to require employees to work forty-eight hours during the first five 
days of the week, except as qualified by the statutory provision 
relative to a Saturday half holidav. 

Sept. 12, 1932. 

Hon. Edwin S. Smith, Commissioner of Labor and Lridustries. 

Dear Sir : — You request my opinion as to whether section 33 of G. L. 
(Ter. Ed.) c. 149, permits a contractor for a public work to require em- 
ployees to work forty-eight hours during the first five days of the week, 
provided that no work is required on Saturday. 

Said section 33 reads as follows : — 

"It shall not be a violation of section thirty or thirty-one if, in the event 
of a Saturday half holiday being given to a laborer, workman or mechanic, 
his hours of labor upon other working days are increased sufficiently to 
make a total of forty-eight hours for his week's work." 

I answer your question in the negative. Section 30 of said chapter 149 
prohibits work of "more than eight hours in any one day." This is quali- 
fied by section 33 to the extent of permitting extra work to make up for 
a deficiency of a forty-eight-hour week caused by a Saturday "half holi- 
day," but it is qualified only to that extent. 

You also request my opinion as to whether a violation of G. L. (Ter. 
Ed.) c. 149, § 30, is involved in requiring a mechanic, who has worked 
forty-eight hours during the week, to repair his steam shovel on Saturday 
afternoon. 

Section 30 provides : — 

"The service of all laborers, workmen and mechanics now or hereafter 
employed by the commonwealth or any county therein or any town 
which, by vote of the city council, or of the voters at a town meeting, 
accepts this section or has accepted section one of chapter two hundred 
and forty of the General Acts of nineteen hundred and sixteen, or by any 
contractor or sub-contractor for or upon any public works of the com- 
monwealth or of any county therein or of any such town is hereby restricted 
to eight hours in any one day and to forty-eight hours in any one 
week. ..." 

You ask whether the repair work referred to is to be construed as 
service "for or upon public works." 

I assume that the steam shovel referred to is being used in connection 
with the public work, and that the repairs are being made with a view to 
its further use in such work. 

In my opinion, the work to which you refer is in violation of the statute. 
The words "for or upon any public work" are descriptive of the con- 
tractor rather than of the laborer. Cf. St. 1911, c. 494. There seems to 
be no qualification of the nature of the work done by the laborers referred 
to other than the implied qualification that the work is in furtherance of 
the contract. Cf. IV Op. Atty. Gen. 443, 445. The work here in question 
was being done, I assume, in furtherance of the contract. It is imma- 
terial whether the laborer's work consists in using his tools or in repairing 
them. That section 30 contains no such qualification as is suggested by 
your question is further confirmed by the provisions of section 34, which 



P.D. 12. 93 

provide that the public contracts there referred to shall contain a stipula- 
tion that no laborer "working within the commonwealth, in the employ 
of the contractor," shall be required or permitted to work more than 
forty-eight hours a week. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

District Attorneys — Traveling Expenses — County. 

Certain travehng expenses of district attorneys are properly chargeable 

to a county. 

Sept. 19, 1932. 
Hon. Walter S. Morgan, Comptroller. 

Dear Sir: — You request my opinion as to whether any travehng 
expenses of district attorneys may be paid by the county for the benefit 
of which they were contracted. 

G. L. (Ter. Ed.) c. 12, §§ 23 and 24, provide as follows: — 

"Section 23. Except in the Suffolk district, and except as otherwise 
provided in section twenty-four of this chapter and in section fifteen of 
chapter two hundred and seventj^-six, district attorneys and assistant 
district attorneys shall receive for traveling expenses necessarily incurred 
in the performance of their official duties such sums as shall be approved 
by a justice of the superior court, to be paid by the commonwealth. 

Section 24. A district attorney, in the name of any county in his 
district, may contract such bills for stationery, experts, travel outside of 
the commonwealth by witnesses required by the commonwealth in the 
prosecution of cases, for necessary expenses incurred by himself or by 
officers and others under his direction in going outside of the common- 
wealth for the purpose of searching for or bringing back for trial persons 
under indictment in said county, and for such other expenses as may in 
his opinion be necessary for the proper conduct of his office in the investi- 
gation of or preparation and trial of criminal causes; and all such bills 
shall be paid by the county for the benefit of which they were contracted 
upon a certificate by the district attorney that they were necessarily 
incurred in the proper performance of his duty, and upon approval of the 
auditor of Suffolk county if the bills were incurred for said county, other- 
wise upon the approval of the county commissioners or of a justice of the 
superior court." 

On April 7, 1924, one of my predecessors in office rendered an opinion 
to the Commissioner of Corporations and Taxation (VII Op. Atty. Gen. 
393) that all travehng expenses of district attorneys "necessarily incurred 
in the performance of their official duties are to be paid by the Common- 
wealth and not by the county." Since the date on which that opinion 
was submitted, the statute therein referred to, G. L. c. 12, § 24, has been 
amended (St. 1930, c. 210, § 2) so as to include within the scope of bills 
to be contracted by district attorneys at the expense of the county "neces- 
sary expenses incurred by himself or . . . others under his direction in 
going outside of the commonwealth for the purpose of searching for or 
bringing back for trial persons under indictment in said county." This 
amendment was made pursuant to a recommendation contained in my 
annual report for the year ending November 30, 1929 (p. 31). 

The effect of this amendment is to render traveling expenses of district 
attorneys incurred "in going outside of the commonwealth for the purpose 



94 P.D. 12. 

of searching for or bringing back for trial persons under indictment in 
said county" properly chargeable to the county for whose benefit said 
traveling expenses were incurred. All traveling expenses of district attor- 
neys other than those included within the scope of St. 1930, c. 210, § 2, 
must still be paid in accordance with the provisions of G. L. (Ter. Ed.) 
c. 12, § 23. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Civil Service — City of Haverhill — Inspector of Plumbing. 

The power of appointment of an inspector of plumbing in the city of 
Haverhill is vested in the board of health of said city. 

Sept. 19, 1932. 

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

Dear Sir: — You have requested my opinion as to whether the power 
of appointment of an inspector of plumbing in the city of Haverhill is 
vested in the inspector of buildings or in the board of health. 

R. L. c. 103, § 5, contained the following provisions relative to the ap- 
pointment of an inspector of plumbing: — 

" The inspector of buildings of each city and town which is subject to the 
provisions of this chapter, if he has control of the enforcement of the 
regulations relative to plumbing or, if he has not such control, the board 
of health, shall, within three months after the acceptance of the provisions 
of this chapter, appoint one or more inspectors of plumbing, ..." 

R. L. c. 103, § 7, provided, in part, as follows: — 

"Each city, except Boston, the city council of which accepts the pro- 
visions of this section or has accepted the corresponding provisions of 
earlier laws and each town of five thousand inhabitants or more, or which 
has a system of water supply or sewerage, shall by ordinance or by-law 
prescribe regulations for the materials, construction, alteration and in- 
spection of all pipes, tanks, faucets, valves and other fixtures by and 
through which waste water or sewage is used and carried; and shall pro- 
vide that such pipes, tanks, faucets, valves or other fixtures shall not be 
placed in any building in such city or town, except in accordance with 
plans approved by the inspector of buildings, if he has control as provided 
in section five, or if he has not such control, by the board of health; ..." 

The city of Haverhill, acting under the authority of R. L. c. 103, passed 
ordinances providing for the construction and inspection of plumbing. 
Chapter XXXIV, Municipal Ordinances of the City of Haverhill, part I, 
section 1, provides as follows: — 

"The Inspector of Plumbing, appointed by the Board of Health ac- 
cording to law and subject to the provisions of Section Three of Part 
Three of Chapter Three of these Ordinances, shall have all the powers, 
rights and privileges, perform all the duties, and be subject to all the 
liabihties of such inspector as defined by law or ordinance; he shall devote 
all his time to the duties of his office, and shall receive such compensation 
therefor as the Board of Health may, subject to the approval of the Mu- 
nicipal Council, determine and provide." 



P.D. 12. 95 

The provisions of R. L. c. 103, §§5 and 7, were not amended or changed 
in any manner material to the present inquiry until the recodification of 
the General Laws in 1921. The corresponding sections of R. L. c. 103, 
§§ 5 and 7, are now G. L. (Ter. Ed.) c. 142, §§ 11 and 13. 

G. L. (Ter. Ed.) c. 142, § 11, provides, in part, as follows: — 

"The said inspector of buildings, if any, otherwise the board of health, 
of each city and town, shall, within three months after it becomes subject 
to sections one to sixteen, inclusive, appoint from the classified civil service 
list one or more inspectors of plumbing ..." 

G. L. (Ter. Ed.) c. 142, § 13, provides, in part, as follows: — 

"Each city, except Boston, and each town which has five thousand in- 
habitants or more or which has a system of water supply or sewerage, shall 
by ordinance or by-law prescribe regulations for the materials, construc- 
tion, alteration and inspection of all pipes, tanks, faucets, valves and other 
fixtures by and through which waste water or sewage is used and carried; 
and shall provide that such pipes, tanks, faucets, valves or other fixtures 
shall not be placed in any building in such city or town, except in accord- 
ance with plans approved by said inspector of buildings, if any, otherwise 
by the board of health; ..." 

G. L. (Ter. Ed.) c. 142, § 6, provides, in part, that, — 

"The examiners shall forward to the board of health of each town, or to 
the inspector of buildings having control of the enforcement of regulations 
relative to plumbing in such town, the names and addresses of all persons 
in such town to whom such licenses have been granted." 

Where sections 11 and 13 delegate powers to "said inspector of build- 
ings, if any," the words "said inspector of buildings" refer to "the in- 
spector of buildings having control of the enforcement of regulations 
relative to plumbing in such town" described in section 6. If there is not 
in any town an inspector of buildings vested with said control by ordi- 
nance or by-law, there is no "inspector of buildings," within the meaning 
of that term as employed in sections 11 and 13, and the power of appoint- 
ment of an inspector of plumbing in such town vests in the board of 
health, under the provisions of said section 11. 

It is obvious that, under the original provisions of R. L. c. 103, § 5, the 
power of appointment of a plumbing inspector in the city of Haverhill 
vested in the board of health. 

The recodification of the General Laws is not to be construed as effecting 
substantive changes in existing law unless a clear intention is expressed. 
Mackintosh, Petitioner, 246 Mass. 482; By field v. Neivton, 247 Mass. 45, 
56. In my opinion, the provisions of G. L. (Ter. Ed.) c. 142, §§11 and 13, 
are substantively identical with those of R. L. c. 103, §§5 and 7 (in so far 
as material to the present inquiry). 

In my opinion, therefore, the power of appointment of an inspector of 
plumbing in the city of Haverhill is vested in the board of health of said 
city. 

Yours very truly, 

Joseph E. Warner, Attorney General. 



96 P.D. 12. 

State Retirement Association — Members — Resignation on Seventieth Birth- 
day — Refund of Contributions. 

A member of the State Retirement Association, who must be retired at 
age seventy, may resign on his seventieth birthday, and his contri- 
butions shall thereupon be refunded. 

Sept. 22, 1932. 

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

Dear Sir: — You request my opinion as to whether a member of the 
State Retirement Association may, on his seventieth birthday, resign and 
obtain a refund of his contributions, under G. L. (Ter. Ed.) c. 32, § 5 
(2) A (c). 

Said section provides that should a member "resign from the service 
of the commonwealth at any time after he is eligible for retirement," the 
money contributed by him shall be refunded, with interest, upon demand 
by him and upon filing a waiver to all claims for pension and annuity. 

Section 2 (4) of the chapter provides that any member who reaches the 
age of sixty after fifteen years' continuous service "may retire or be re- 
tired by the board", and that "any member who reaches the age of seventy 
must so retire." 

As I understand it, if this member had resigned the day before and had 
asked for a refund no question would be raised. The question now arises 
because of the provision in section 2 (4) that "any member who reaches 
the age of seventy must so retire." You query whether, in view of this 
provision of the statute, the member was not already retired at the time, 
and so not in a position to resign; but you state: — 

"It has been the policy of the Board to allow a member to receive salary 
on his seventieth birthday and to retire as of the close of business on said 
day. We have not considered that a member must terminate active 
service on the day immediately prior to his seventieth birthday so that his 
pension instead of the salary would be paid for his seventieth birthday." 

According to the policy of your Board, as stated by you, the member 
had not been retired, and would not be until the end of his seventieth 
birthday. His pension had not begun to run; he was still being paid as 
in the service of the Commonwealth. Since he was still, in fact, in the 
service, he could resign from it. It would be inconsistent for your Board 
to hold otherwise. 

In my opinion, the member should be granted the refund which he seeks. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Motor Vehicles — Towing Disabled Motor Vehicles — Registration — 
Operation. 

Towed automobiles, being towed by fiexible connection or by a crane 
raising the front end or by a rigid towbar, if actually disabled, ai'e 
not being operated, as that word is used in G. L. (Ter. Ed.) c. 90, § 9. 

Sept. 28, 1932. 
Hon. Frank E. Lyman, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion as to whether or not 
motor vehicles being towed under certain sets of conditions, which you 
have outlined, are being "operated," as that word is used in G. L. (Ter. 
Ed.) c. 90, § 9. 



P.D. 12. 97 

The first set of conditions which you outline is that in which a motor 
vehicle is being "towed by means of a flexible connection, in such a man- 
ner as to require the presence of an operator in the towed vehicle to op- 
erate the steering mechanism and the brakes." The second set of con- 
ditions which you outline is that where "the front end of the towed vehicle 
is lifted clear of the ground by a crane or other device." The third set of 
conditions is that in which a motor vehicle is towed "by means of a rigid 
towbar, which also controls the steering mechanism of the car being towed. 
The two cars, towing car and towed car, are operated by means of this 
linkage as one unit and are under the control of one driver." 

I assume that under each of the sets of conditions which you have set 
forth the car that is being towed is, in its existing state, incapable of pro- 
ceeding under its own motive power. 

In Norcross v. B. L. Roberts Co., 239 Mass. 596, the Supreme Judicial 
Court, in considering a statute which was a forerunner of the instant 
section [section 9 of G. L. (Ter. Ed.) c. 90] and which provided that "no 
person shall operate any motor vehicle . . . upon . . . any way, . . . 
unless . . . registered," held that an unregistered motor cycle which was 
incapable of going under its own power and was being pushed by its 
owner over the highway to a repair shop six miles away was not being 
operated so as to come within the prohibition of the statute. The court 
said: "The plsuntiff was no more operating the machine, within the 
contemplation of the statute, than if he had been conveying it in a wheel- 
barrow." 

If pushing a disabled motor cycle over the highway by hand is not 
operating it, within the meaning of this form of criminal statute, it is dif- 
ficult to understand how pulling a disabled motor vehicle over the high- 
way by another car can be deemed operating the motor vehicle. Nor if 
a person who pushes and guides a disabled motor cycle does not by such 
acts operate, within the meaning of the statute, it is equally as difficult to 
comprehend how the person who sits in a disabled towed automobile and 
merely steers and brakes it can be said to operate the latter. It would 
seem that the verb "operate" in any of its parts, as used in the instant 
statute, relates to action capable of causing a non-disabled motor vehicle 
to progress over the highway in some manner other than by propulsive 
power applied by some person or another vehicle. 

In each of the other cases in which our Supreme Judicial Court has con- 
sidered the meaning of the verb "operate" as applied to motor vehicles 
or motor cycles, in various sections of G. L. c. 90, the vehicle involved has 
been one capable of being driven under its own power, and in each the 
intentional doing of an act connected with the mechanism, by a person 
within the vehicle, has made possible the movement of the vehicle with- 
out the application of any external force other than gravity, except in 
the instance of stops for brief inspection or minor repairs. The construc- 
tion of the verb "operate" in its various parts has always been considered 
by the Supreme Judicial Court in relation to what may be called "live" 
cars; that is, cars capable of immediately or shortly proceeding under 
their own power. The opinions in such cases have no real application to 
the question which you have asked me concerning motor vehicles which 
do not come within the description of "live" cars. Commonwealth v. 
Henry, 229 Mass. 19; Reynolds v. Murphy, 241 Mass. 225; Common- 
wealth V. Clarke, 254 Mass. 566; Commonwealth v. Uski, 263 Mass. 22; 
Cook V. Crowell, 273 Mass. 356; Jenkins v. North Shore Dye House, Inc., 
277 Mass. 440. 



98 P.D. 12. 

The opinion of the court in Norcross v. B. L. Roberts Co., supra, appears 
to be based upon conditions of fact sufficiently analogous to those which 
you have set forth in your question to go far towards establishing a basis 
for an answer to your question. 

Moreover, G. L. (Ter. Ed.) c. 90, § 9, the controlling statute, reads as 
follows : — 

"No person shall operate any motor vehicle or draw any trailer, and the 
owner or custodian of such a vehicle shall not permit the same to be op- 
erated upon or to remain upon any way except as authorized by section 
three, unless such vehicle is registered in accordance with this chapter 
and carries its register number displayed as provided in section six, and, 
in the case of a motor vehicle, is equipped as provided in section seven, 
except that any motor vehicle or trailer may, if duly registered, be oper- 
ated or remain upon any way between the hours of twelve o'clock noon on 
December thirty-first of one year and twelve o'clock noon on January first 
of the following year if it carries its register number of either year displayed 
as provided in section six, and except that a tractor or trailer may be op- 
erated without such registration upon any way for a distance not exceed- 
ing one half mile, if said tractor or trailer is used exclusively for agricultural 
purposes, or for a distance not exceeding three hundred yards, if such 
tractor or trailer is used for industrial purposes other than agricultural 
purposes, for the purpose of going from property owned or occupied by the 
owner of such tractor or trailer to other property so owned or occupied; 
but violation of this section shall not constitute a defence to actions of 
tort for injuries suffered by a person, or for the death of a person, or for 
injury to property, unless it is shown that the person injured in his person 
or property or killed was the owner or operator of the motor vehicle the 
operation of which was in violation of this section, or unless it is shown 
that the person so injured or killed, or the owner of the property so in- 
jured, knew or had reasonable cause to know that this section was being 
violated. A motor vehicle or trailer shall be deemed to be registered in 
accordance with this chapter notwithstanding any mistake in so much of 
the description thereof contained in the application for registration or in 
the certificate required to be filed under section thirty-four B as relates 
to the engine, serial or maker's number thereof." 

Inasmuch as G. L. (Ter. Ed.) c. 90, § 9, provides that "no person shall 
operate any motor vehicle . . . unless . . . registered . . . and ... is 
equipped as provided in section seven," and as section 7 provides that 
"every motor vehicle operated" shall be provided with brakes, with a 
muffler, with a horn, with approved lamps, and shall have the lamps, 
both front and back, lighted at certain hours, these latter provisions 
having no apparent application to disabled towed cars, I am of the opinion 
that the terms of said section 9 were intended by the Legislature to apply 
to "live" cars, not to cars which were incapable of being moved on the 
highway by their own power. See Musgrove v. Siudehaker Co., 48 Utah, 
410. 

Identification by registration plates on the vehicle which is in fact 
moving the towed car would seem to furnish sufficiently adequate infor- 
mation as to the source of responsibility to any one injured by the move- 
ments of the towed vehicle. 

Accordingly, I answer your question to the effect that none of the towed 
cars to which you have referred, assuming that none of them is capable 



P.D. 12. 99 

of moving by means of its own power, under the conditions which you 
have set forth in your communication, is being operated, as that word is 
used in G. L. (Ter. Ed.) c. 90, § 9. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Secretary of the Department of Industrial Accidents. 

The position of secretary of the Department of Industrial Accidents is 
subject to the civil service law. 

Oct. 3, 1932. 

Hon. Chester E. Gleason, Acting Chairman, Department of Industrial 

Accidents. 

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

"On behalf of the Industrial Accident Board, I respectfully request an 
expression of your opinion whether the position of secretary of the Depart- 
ment of Industrial Accidents, authorized by G. L. (Ter. Ed.) c. 24, § 4, 
is subject to civil service rules and classification." 

G. L. (Ter. Ed.) c. 24, § 4, which relates to the appointment of a sec- 
retary of your department, reads: — 

"The salaries and expenses of the department shall be paid by the 
commonwealth. The department may appoint and remove a secretary. 
It shall also be allowed such sums as may annually be appropriated by 
the general court for clerical service and traveling and other necessary 
expenses. Its records shall be kept in its office." 

The office of such secretary is not included within any of those classes 
which are specifically exempted from the operation of the civil service 
laws by G. L. (Ter. Ed.) c. 31, § 5, or other statute. 

Although by G. L. (Ter. Ed.) c. 24, § 4, your department is given 
authority to "appoint and remove" a secretary, that fact alone does not 
indicate an intent upon the part of the Legislature to place the office of 
such secretary outside the provisions of law applicable generally to the 
officials and employees of the Commonwealth under an established sys- 
tem of civil service, as set forth in G. L. (Ter. Ed.) c. 31. 

As was said in an opinion given by the Attorney General to the State 
Auditor, February 19, 1931 (Attorney General's Report, 1931, p. 56): 

"It has been held in former opinions of Attorneys General that ap- 
pointive positions in the government of the Commonwealth are presump- 
tively 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 creat- 
ing the positions or providing for the appointment to or removal from 
said positions, that it was the intention of the Legislature that said" 
civil service "rules and regulations should not apply to these positions." 

In that opinion it was held that the words "may appoint and remove 
such employees as the work of the department may require" do not show 
any legislative intent that a removal may be made in any other manner 
than that which the rules of civil service contemplate. It is equally true 
that such words do not show any legislative intent that an appointment 



100 P.D. 12. 

may be made in any other manner than that which the rules of civil serv- 
ice contemplate. 

The same principle of interpretation expressed in said opinion applies 
with equal force to the words relative to appointment and removal in 
G. L. (Ter. Ed.) c. 24, § 4. A power to "appoint and remove," not quali- 
fied by other phrases, is perfectly consistent with the rules and regula- 
tions of civil service which are applicable, and a grant of such power 
merely in these words does not disclose a legislative intention that the 
law and the rules and regulations relative to civil service shall not apply to 
an office or to the manner in which it is to be filled. 

Accordingly, I am of the opinion that the position of secretar}^ of the 
Department of Industrial Accidents is subject to the provisions of the 
civil service law and to the rules and classifications duly made thereunder. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Domestic and Foreign Mutual Insurance Companies — "Guaranty Fu?id" 
— "Guaranty Capital." 

G. L. (Ter. Ed.) c. 175, § 90C, providing for a "guaranty fund," applies 

only to domestic mutual insurance companies. 
A foreign mutual insurance company cannot engage in fidelity and surety 
business without first establishing a "guaranty capital," as required 
by G. L. (Ter. Ed.) c. 175, § 151, cl. Second (3) (b), and cannot rely 
upon a guaranty fund. 

Oct. 7, 1932. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir : — • In a recent communication you advise me as follows : 
"The Lumbermen's Mutual Casualty Company and the Security 
Mutual Casualty Company, incorporated as mutual insurance companies 
under the laws of Illinois, and authorized by their charters to transact 
the kinds of business described in G. L. (Ter. Ed.) c. 175, § 47, cl. Fourth, 
have applied to the department for a license to transact business under 
said clause Fourth. 

These companies have, by a vote of their directors, set aside a portion 
of their net surpluses as, or in the nature of, a permanent fund, which 
they describe as a 'guaranty capital fund.'" 

You have asked my opinion on the following questions of law : — 

"1. Do the provisions of G. L. (Ter. Ed.) c. 175, § 90C (enacted by 
St. 1931, c. 242), apply only to domestic mutual insurance companies? 

2. If you answer the preceding question in the affirmative, is the fund, 
above described as 'guaranty capital fund,' established by the two afore- 
said foreign mutual companies a 'guaranty capital,' within the meaning 
of G. L. (Ter. Ed.) c. 175, § 151, cl. Second (3), or does said clause Second 
(3) require that a foreign mutual company proposing to transact business 
under clause Fourth of section 47 of said chapter 175 have a guaranty 
capital similar in form and structure to that described in section 79 of 
said chapter 175 and required of a domestic mutual company transacting 
business under said clause Fourth by section 90B of said chapter?" 

1. G. L. (Ter. Ed.) c. 175, § 90C (added by St. 1931, c. 242, § 1), pro- 
vides as follows : — 



P.D. 12. 101 

"Any mutual company empowered by subdivision (e) of section fifty- 
four to transact the kinds of business set forth in the fourth clause of 
section forty-seven, which has not established a guaranty capital under 
section ninety B as required by said subdivision (e) and which has net cash 
assets, computed on the basis fixed by sections ten to twelve, inclusive, of 
not less than two million dollars may, in lieu of establishing a guaranty 
capital as aforesaid, if previously authorized by a vote of its policyholders 
at any meeting and with the written approval of the commissioner, 
segregate a portion of its net cash assets to an amount of not less than two 
hundred thousand nor more than five hundred thousand dollars and con- 
stitute said amount a guaranty fund. 

Any such fund shall be maintained so long as the company transacts 
business under said clause fourth, shall be invested as provided by this 
chapter for the investment of the capital stock of domestic stock com- 
panies, and shall not be reduced or dissolved except with the written 
approval of the commissioner. 

The said fund shall be applied solely to the payment of claims under 
policies or contracts issued or executed under said clause fourth, but only 
in case the company has exhausted its assets, exclusive of uncollected 
premiums. 

No company with such a guaranty fund which ceases to transact busi- 
ness shall divide among its policyholders any of its assets or guaranty 
fund, until it shall have performed or cancelled all obligations under its 
policies and contracts. 

Any company whose guaranty fund aforesaid is less than five hundred 
thousand dollars may, subject to the provisions of this section, from time 
to time increase it to an amount not exceeding said sum; provided, that 
no such increase shall be made unless the net cash assets of the company, 
computed as aforesaid, inclusive of the amount of such fund, amount to 
at least two million dollars at the time the increase is made." 

The vital words of the foregoing statute with respect to your first ques- 
tion are: "Any mutual company empowered by subdivision (e) of section 
fifty-four to transact the kinds of business set forth in the fourth clause 
of section forty-seven, ..." 

Said section 54 (e) provides as follows : — 

"No domestic mutual company shall transact any other kind of busi- 
ness than is specified in its charter or agreement of association, except that 
it may in addition transact the kinds of business specified below by refer- 
ence to the several clauses of section forty-seven, as follows: 

(e) Any one or more of the fourth, fifth, sixth, seventh, eighth, ninth, 
tenth, twelfth and thirteenth clauses, if authorized to transact business 
under any one of said clauses, provided that before transacting business 
under any such additional clause, other than the fourth, it shall have net 
cash assets over all its liabilities, computed on the basis fixed by sections 
ten to twelve, inclusive, of not less than one hundred thousand dollars for 
each additional clause, which net cash assets shall be maintained as long 
as it transacts business under such additional clause; and provided 
further, that before transacting business under the fourth clause, it shall 
have a fully paid-up guaranty capital as provided in section ninety B or 
a guaranty fund as provided in section ninety C, and net cash assets, so 
computed, exclusive of said capital or fund, of not less than one hundred 



102 p.D. 12. 

thousand dollars. Any mutual company transacting business under this 
clause may accumulate and maintain the net cash assets required here- 
under in addition to the amount permitted by section eighty. The provi- 
sion of section twenty-one that a mutual boiler company may insure in a 
single risk an amount not exceeding one fourth of its net assets shall not 
apply to any mutual company transacting business under this clause." 

Said section 47, clause Fourth, provides as follows: — 

"Companies may be incorporated under and subject to the provisions 
of this chapter for the following purposes : — 

Fourth, (a) To guarantee the fidelity of persons in positions of trust, 
private or public, (6) to act as surety on official bonds and for the per- 
formance of other obligations, (c) to guarantee or insure to the holders 
thereof the payment of the principal of, or interest on, bonds, notes or 
other evidences of indebtedness and to insure against loss or damage 
arising from any default in the payment of such principal or interest, 
and (d) to insure a bank, banker, investment broker, banking association 
or corporation against any loss of bills of exchange, notes, profits, bonds, 
securities, evidences of indebtedness, deeds, mortgages, documents, cur- 
rency or money, except against the loss thereof during marine trans- 
portation or while being transported by a common carrier." 

The language of the sections referred to in said section 90C (St. 1931, 
c. 242, § 1) is clear, and no further discussion seems to be required to 
show that said section 90C applies only to domestic mutual companies 
authorized to do a surety or fidelity business, so called. 

I answer your first question in the affirmative. 

2. G. L. (Ter. Ed.) c. 175, § 151, provides, in part, as follows: — 

"No foreign company shall be admitted and authorized to do business 
until — 

Second, It has satisfied the commissioner that . . . (3), it has, if a 
mutual company, other than a life company, ... or (b), if it proposes 
to transact business under the fourth clause of said section forty-seven, 
a fully paid-up guaranty capital unimpaired on the basis fixed by sec- 
tions ten to twelve, inclusive, of not less than two hundred thousand 
dollars and net cash assets, so computed, exclusive of said guaranty 
capital, of not less than one hundred thousand dollars; ..." 

The foregoing provisions of law impose conditions to be observed by a 
foreign mutual company which proposes to do a fidelity or surety busi- 
ness [G. L. (Ter. Ed.) c. 175, § 47, cl. Fourth] before it can be admitted 
and /or authorized to do business in this Commonwealth, which condi- 
tions are that it shall have "a fully paid-up guaranty capital unim- 
paired ... of not less than two hundred thousand dollars and net cash 
assets, . . . exclusive of said guaranty capital, of not less than one 
hundred thousand dollars." 

The material words of said statute with respect to the matter under 
consideration are "guaranty capital." G. L. (Ter. Ed.) c. 175, § 79, 
authorizes a mutual company to be formed with, or an existing mutual 
company to establish, a guaranty capital, and sets forth, amongst other 
things, how said guaranty capital shall be established and when it shall 



P.D. 12. 103 

be applied. It shall be "divided into shares of one hundred dollars each 
and shall be applied to the payment of losses only when the company 
has exhausted its assets, exclusive of uncollected premiums." 

A guaranty capital, established as authorized by said section 79, is a 
security for the payment of losses after the company has exhausted its 
assets, exclusive of uncollected premiums. See Commonwealth v. Berk- 
shire Life Ins. Co., 98 Mass. 25. The provisions of said section apply to 
foreign mutual companies where the establishment of a guaranty capital 
is a prerequisite to admission to or authority to do business in this Com- 
monwealth, and also where the establishment of such guaranty capital 
is required before policies may be issued. 

Inasmuch as a foreign mutual company cannot be admitted to or au- 
thorized to do the kinds of business as set forth in said section 47, clause 
Fourth, until it has established a guaranty capital, it is, upon such ad- 
mission or grant of authority, authorized forthwith to issue policies. But 
such foreign company cannot substitute a "guaranty fund" for a guaranty 
capital as a condition for its admission to or authority to engage in the 
said kinds of business, because there is no statutory authority therefor. 
The creation of a guaranty fund, as authorized by section 90C, and the 
substitution thereof for a guaranty capital is a privilege to be enjoyed 
only by domestic companies. 

Section 90B of the same chapter provides : — 

"No policy shall be issued by a mutual company formed to transact 
business under the fourth clause of section forty-seven until it has estab- 
lished a fully paid-up guaranty capital of not less than two hundred 
thousand dollars, which shall be subject to the provisions of section 

seventy-nine . . ." 

In my opinion, this statute (§ 90B) applies to both domestic and foreign 
mutual companies engaged in the kinds of business named therein. In 
the case of a domestic company it cannot issue policies until it has estab- 
lished a guaranty capital or has created a guaranty fund in lieu of said 
guaranty capital, as authorized by section 90C. 

Nowhere in said chapter 175 is there authority for the creation of a 
"guaranty capital fund" such as said foreign mutual companies have 
established as a condition to secure authority to transact a fidelity or 
Surety business in this Commonwealth. Said chapter 175, as it applies 
to mutual insurance companies, provides only for the creation of a guar- 
anty capital and a guaranty fund. 

A guaranty capital can only be established by the issuance and sale of 
capital stock divided into shares of one hundred dollars each, so as to 
bring within the financial structure of said corporation new capital to be 
used as security for the payment of losses. A guaranty fund is established 
by a vote of the policy holders of a domestic mutual company, with the 
approval of the Commissioner, by the segregation of a portion of its net 
cash assets. In this instance no new capital is required, as in the case of 
the establishment of a guaranty capital. 

In my opinion, a foreign mutual company which proposes to engage in 
fidelity and surety business in this Commonwealth cannot be admitted 
and /or authorized to do so until a guaranty capital is j&rst established, 
which shall be used primarily as security for the payment of losses in- 
curred in this Commonwealth; and it cannot take advantage of the 
guaranty fund, as authorized in section 90C, because, as stated above, 
that is a privilege to be enjoyed only by domestic mutual companies. 



104 P.D. 12. 

The funds described in these certificates of the Lumbermen's Mutual 
Casualty Company and the Security Mutual Casualty Company of Chi- 
cago as a "guaranty capital fund" are not a guaranty capital, within the 
meaning of section 151, clause Second (3) (6). They amount to a segre- 
gation of a portion of the assets of those companies set aside and to be 
maintained unimpaired so long as said company shall be licensed to 
transact a fidelity or surety business in this Commonwealth. The funds 
so set aside are substantially similar to a guaranty fund as authorized b}^ 
section 90C. 

I answer the remaining part of your second question in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



City Infirmary — Charitable Institution — Civil Service Rules. 

A city infirmary is a "charitable institution," within the meaning of Civil 
Service Rule 4, class 1. 

If the board of public welfare of a city appoints a warden for an infirmary, 
whose duties are those of a superintendent, his position is not classi- 
fied under civil service laws, rules and regulations. 

Oct. 13, 1932. 
Hon. Paul E. Tierney, Commissioner of Civil Service. 

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

"Is the city infirmary of the city of Westfield a charitable institution, 
within the meaning of ' charitable institutions ' as set forth in Civil Service 
Rule 4, class 1? 

Is the position of warden of the city infirmary of the city of Westfield 
classified under civil service laws, rules and regulations?" 

You state: "The city of Westfield receives from time to time board or 
partial board for inmates; this is paid either by the inmate, friends, a 
city or town of settlement, or the State. G. L. (Ter. Ed.) c. 47, § 10." 

G. L. (Ter. Ed.) c. 47, to which you refer, provides (section 1) that a 
town may maintain an infirmary "for persons in need." It seems clear 
that such an infirmary is a "charitable institution," within the meaning 
of Civil Service Rule 4, class 1, and, accordingly, I answer your first 
question in the affirmative. 

As to your second question, you do not define the duties of the position 
and the manner of appointment of the warden, and in the absence of such 
information I cannot definitely determine whether he is a superintendent 
or deputy superintendent, within the meaning of these words as used in 
Civil Service Rule 4, nor whether he is excluded from civil service by any 
of the provisions of section 5 of G. L. (Ter. Ed.) c. 31. It is provided by 
G. L. (Ter. Ed.) c. 47, § 2, that the board of public welfare of a city having 
an infirmary shall be the directors thereof, and that they may "appoint 
a superintendent and assistants." If the board of public welfare of the 
city of Westfield appoints the so-called warden, under the authority con- 
ferred by said section 2, and he performs the duties of a superintendent or 
deputy superintendent, it would seem that his position is not classified 
under the rule to which you refer. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 105 

Minors — Minimum Wages — Females — Definition of "Minor." 

The word "minors", as used in section 3 of G. L. (Ter. Ed.) c. 151, is 

limited to female persons. 
The word "minors," as used in section 7 of G. L. (Ter. Ed.) c. 151, applies 

to both male and female persons. 
A minor, at common law, is any person under the age of twenty-one. 

Nov. 14, 1932. 
Hon. Edwin S. Smith, Commissioner of Labor and Industries. 

Dear Sir: — You request my opinion as to whether the word "minors," 
as used in G. L. (Ter. Ed.) c. 151, § 3, is limited to females. You also 
request my opinion as to whether the word is so Imiited in section 7, and 
also as to what is the age limit of minors, as that word is used in section 7. 

Section 3 provides for the determination by a wage board of the mini- 
mum wages suitable for a "female employee" and also for "learners and 
apprentices and for minors under eighteen." The word "minors," as 
here used, applies only to female minors. This follows from the fact that 
under the provisions of the two preceding sections a wage board is ap- 
pointed only as a result of an investigation by the Minimum Wage Com- 
mission, and such investigation is, by the terms of section 1, confined to 
"female employees." Also, no provision is made under section 2 for 
representation on the wage board of any employees other than "female 
employees." Since sections 1 and 2 apply only to female employees, 
section 3 is not to be construed as including any other class. 

Separate provision is made in section 7 for the determination of mini- 
mum wages of minors as a class. This section provides : — 

"The commission may at any time inquire into the wages paid to 
minors in any occupation in which the majority of employees are minors, 
and may, after giving public hearings, determine minimum wages suitable 
therefor. When the commission has made such a determination, it may 
proceed in the same manner as if the determination had been recom- 
mended to it by a wage board." 

The word "minors," as here used, applies to both male and female. 
In answer to your question as to the age limit of minors as referred to 
in this section, I would say that it is twenty-one years for male or female. 
That is the age of majority under the common law of this State. Sec- 
tion 7 is distinct from section 3, and the construction of the word 
"minors," as used in section 7, is not affected by the reference to "minors 
under eighteen" contained in section 3. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Veteran — Army Service. 

Prior participation in "active service" is not necessary to the creation of 
the status of a "veteran." 

Nov. 14, 1932. 
Hon. Paul E. Tierney, Commissioner of Civil Service. 

Dear Sir : — You request my opinion as to whether a certain appli- 
cant is entitled to veterans' preference under the civil service statute, in 
view of the facts set forth in his certificate of discharge, which you sub- 
mit with your request. 



100 P.D. 12. 

The term "veteran" is, in part, defined in the civil service statute as 
"any person who has served in the army, navy or marine corps of the 
United States in time of war or insurrection and has been honorably dis- 
charged from such service or released from active duty therein." G. L. 
(Ter. Ed.) c. 31, § 21. 

The certificate which you submit, dated December 21, 1918, is en- 
titled "Honorable Discharge from The United States Army." It describes 
the appHcant as a "Private Medical Enlisted Reserve Corps The United 
States Army." It states that the applicant is honorably discharged 
"from the military service" of the United States by reason of "services 
being no longer required." It recites that the applicant is thus discharged 
as a testimonial of honest and faithful "service." Under a heading en- 
titled "Enlistment Record" it is stated that the apphcant "enlisted" 
July 29, 1918; and that he was "serving in" first enlistment period at 
date of discharge. It is also recited that the applicant was "never in 
active service." 

According to this record the applicant has served in the army of the 
United States, and so brings himself within the words of G. L. (Ter. Ed.) 
c. 31, § 21, above quoted. This statute in terms imposes no limitation 
based upon the nature of the service. The words "or released from active 
duty therein" express an alternative to an honorable discharge. They 
seem to have been inserted in the statute because of the practice pre- 
vailing in the navy, as distinguished from the army, of granting a release 
from active service in advance of a discharge. Cf. VI Op. Atty. Gen. 
528; Gen. St. 1919, c. 14. 

In my opinion, the applicant in question is a "veteran," within the 
meaning of the civil service statute. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Fraternal Benefit Societies — Election of Officers hy Members — Representa- 
tive Form of Government. 

A fraternal benefit society the officers of which are elected directly by 
the members of the society, instead of by its supreme legislative or 
governing bodv, is deemed to have a representative form of govern- 
ment, within the purview of G. L. (Ter. Ed.) c. 176, § 3. 

Nov. 18, 1932. 
Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — You have advised me as to the following facts: — 

"The Lithuanian Alliance of America is a fraternal benefit society 
incorporated under the laws of the Commonwealth of Pennsylvania, and 
is licensed to transact business in this commonwealth as a foreign frater- 
nal benefit society, under G. L. (Ter. Ed.) c. 176, § 41. 

This society provides in its constitution and by-laws for a supreme 
legislative or governing body, known as the Supreme Assembly, which is 
elected as provided in G. L. (Ter. Ed.) c. 176, § 3. It also provides in 
its constitution and by-laws for the offices of supreme president, supreme 
vice-president, supreme secretary, supreme treasurer, two supreme trus- 
tees and supreme medical examiner. These officers comprise what is 
known as the Supreme Executive Board. 

The society has submitted to the Commissioner of Insurance an amend- 
ment to its constitution and by-laws, under which the aforesaid officers 



P.D. 12. 107 

of the society shall be elected directly by the members of the society and 
not by the Supreme Assembly, as at present." 

In order to determine your duty with relation to enforcing the provisions 
of G. L. (Ter. Ed.) cc. 175 and 176, as required by section 3A of said 
chapter 175, as they may concern the said fraternal benefit society, you 
have requested my opinion upon the following question of law : — 

"Does a fraternal benefit society have a representative form of govern- 
ment, as required by G. L., c. 176, § 3, if its constitution and by-laws 
provide that its officers shall be elected directly by its members and not 
by the supreme legislative or governing body of the society mentioned in 
said section 3?" 

G. L. (Ter. Ed.) c. 176, in its applicable parts, provides with relation 
to fraternal benefit societies : — 

"Section 3. Any such society shall be deemed to have a representa- 
tive form of government when it shall provide in its constitution and by- 
laws for a supreme legislative or governing body, composed of represent- 
atives elected either by the members or by delegates elected directly 
or indirectly by the members, together with such other members as may 
be prescribed by its constitution and by-laws; provided, that the elective 
members shall have not less than two thirds of the votes nor less than the 
number of votes required to amend its constitution and by-laws; and 
provided, further, that the meetings of the supreme or governing body 
and the election of officers, representatives or delegates shall be held as 
often as once in four years. The members, officers, representatives or 
delegates of a fraternal benefit society shall not vote by proxy." 

The mere fact that the executive and administrative officers of a fra- 
ternal benefit society are elected by direct vote of the members cannot, in 
my opinion, be said to indicate, of itself, that such a society does not have 
a representative form of government when, as in the instant case, the 
society has a "supreme legislative or governing body known as the Su- 
preme Assembly, which is elected as provided in section 3." Inasmuch 
as it provides by its constitution, as you inform me, such a "supreme 
legislative or governing body," it falls squarely within the statutory 
statement of what shall be deemed a representative form of government 
for a fraternal benefit society, irrespective of the mode of choosing execu- 
tive officers. Moreover, such constitutional provisions would appear to 
create a representative form of government, as these words are ordinarih^ 
used. It could not well be said that we did not possess a representative 
form of government in this Commonwealth, possessing, as we do, a Legis- 
lature composed of persons chosen from various political units, although 
our executive officers are elected not by the Legislature but by direct vote 
of the people. 

I answer your question in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



108 P.D. 12. 

Labor — Veteran — Preference — Contractor. 

A contractor on public work is not required by G. L. (Ter. Ed.) c. 149, 
§ 26, to discharge a non-veteran actually at work, to make room for 
a veteran subsequently seeking employment, where an opportunity 
was given for veterans to apply before the non-veteran was employed 
and none did so. 

Nov. 21, 1932. 

Hon. Edwin S. Smith, Commissioner of Labor and Industries. 

Dear Sir : — You request my opinion as to whether a contractor 
engaged in the construction of a building for the Commonwealth is required 
by G. L. (Ter. Ed.) c. 149, § 26, to discharge a non-veteran mechanic, 
who is actually at work on such building, in order to make room for a 
veteran applying for employment. I assume from your statement that 
no veterans were seeking the place, and that the contractor gave oppor- 
tunity for veterans to apply when the non-veteran mechanic was first 
employed. 

Said section 26 is as follows : — 

"In the employment of mechanics, teamsters and laborers in the con- 
struction, addition to and alteration of public works by the common- 
wealth, or by a county, town or district, or by persons contracting there- 
with for such construction, addition to and alteration of public works, 
preference shall first be given to citizens of the commonwealth who have 
served in the army or navy of the United States in time of war and have 
been honorably discharged therefrom or released from active duty therein, 
and who are qualified to perform the work to which the employment 
relates; and secondly, to citizens of the commonwealth generally, and, if 
they cannot be obtained in sufficient numbers, then to citizens of the 
United States, and every contract for such work shall contain a provision 
to this effect. The wages for a day's work paid to mechanics and team- 
sters employed in the construction, addition to or alteration of public 
works as aforesaid shall be not less than the customary and prevailing 
rate of wages for a day's work in the same trade or occupation in the 
locality where such public works are under construction or being added to 
or altered; provided, that no town in the construction, addition to or 
alteration of public works shall be required to give preference to veterans, 
not residents of such town, over citizens thereof. This section shall also 
apply to regular employees of the commonwealth or of a county, town or 
district when such employees are employed in the construction, addition, 
to and alteration of public works for which special appropriations are 
provided. Any person or contractor who knowingly and wilfully violates 
this section shall be punished by a fine of not more than one hundred 
dollars." 

The preference in employment on public work was first given to veterans 
in June of 1919 (Gen. St. 1919, c. 253), by adding a provision to that 
effect to the Citizens' Preference Act (St. 1904, c. 311, as amended). In 
the preceding month of that same session of 1919 the Legislature enacted 
a law providing for preference of veterans in civil service (Gen. St. 1919, 
c. 150). Under this act (c. 150) the preference which was given to veterans 
was preference in filling any existing vacancy in such service. As said 
chapter 253 followed chapter 150, and followed it by so short a time and 
was part of the same series of legislation in recognition of veteran service, 
and as no language appears in said chapter to distinguish the word "em- 



P.D. 12. 109 

ployment" as used therein or to reveal any intent that the character of 
employment thereunder should be other than "employment" as originally 
used, it would seem that the contingency, of providing preference for 
veterans by discharge at any time of non-veterans in cases other than 
civil service, had not occurred to the Legislature. Also, chapter 253 
[now G. L. (Ter. Ed.) c. 149, § 26], here in question, in providing for 
preference in employment used the word "employment" as applicable to 
all employers, whether "the commonwealth . . . or . . . town," or 
"persons contracting therewith," in the same sentence. If in "employ- 
ment" by the Commonwealth or town under civil service a veteran could 
not require the discharge of a non-veteran in order to create a vacancy, 
and if the word "employment," when applied to such a case, could not 
have meaning other than employment in case of vacancy, it follows that 
the term "employment," as used in G. L. (Ter. Ed.) c. 149, § 26, in the 
absence of express provision otherwise, must have the same meaning, 
whether the employer be Commonwealth, county, town or district, or 
persons contracting therewith, namely, employment in filling any existing 
vacancy. Moreover, there has been a lapse of thirteen years from its 
enactment, during which period such meaning has been uniformly applied 
to civil and non-civil service employment on public works, and during 
which period Legislatures have had opportunity, through sufficiency of 
time and currency of experiences, to legislate otherwise with respect to 
non-civil service employment on such works. Thus the Legislature made 
a common rule to be observed in employment on public works. 

In addition to legal reason, such rule may have been counseled by the 
practical one that variant interruptions of public work in process of con- 
struction, addition to or alteration, by discharge of non-veterans at any 
time upon application of veterans, could cause delay and financial loss 
which preference of veterans in filling vacancies could not. 

For such reasons I answer your question in the negative and upon the 
assumption that no veterans were seeking the place and that the con- 
tractor gave opportunity for veterans to apply when the non-veteran 
mechanic was first employed, — for the spirit of the law is that contractors 
for public work shall not by practices foreclose the right of veterans to 
original preference, as such work is the people's and the people have pre- 
scribed that the rights of their defenders to preference in such employ- 
ment shall precede those of any other persons in the Commonwealth. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

'^ Batch of Clams'' — Definition. 

The word "batch," as used in G. L. (Ter. Ed.) c. 130, § 84, means each 
separate lot, such as a barrel, basket, crate or bag. 

Nov. 21, 1932. 

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

Dear Sir : — You request my opinion as to the meaning of the word 
"batch," as used in the last sentence of G. L. (Ter. Ed.) c. 130, § 84. 

This section provides, in part : — 

"Whoever shall take or have in possession quahaugs or soft-shelled 
clams less than two inches in longest diameter to the amount of more 
than five per cent of any batch shall be punished by a fine of not less 
than three nor more than fifty dollars; . . ." 



no P.D. 12. 

You state that the department has construed the word "batch" as 
referring to each separate lot, such as a barrel, basket, crate or bag, but 
that it has been suggested that the word should be construed as meaning 
"the total quantity" on hand. 

It seems clear that the word must have been intended to mean some- 
thing different from the total quantity on hand, for otherwise its use 
would be superfluous. And that being so, it is difficult to see, as applied 
to those "who have in possession," what the word can have been intended 
to mean other than the amount segregated in one container. If the stat- 
ute referred only to those who "take," the word "batch" might well be 
construed as referring to the quantity taken by a single operation; that 
is, to one catch. And this would seem in accordance with the definition 
of the word given in Webster's New International Dictionary, which is: — 

"(1) The quantity of bread baked at one time; a baking: 

(2) A quantity of material destined for one operation, as of flour or 
dough for a baking or corn for a grinding: 

(3) A quantity of anything produced at one operation; a group or 
collection of persons or things of the same kind, or taken at a time; sort; 
lot; as, a batch of letters." 

But such a construction would practically nullify the statute so far as 
it applies to those who "have in possession," for it would be practically 
impossible to prove that the whole or any given part of a quantity on 
hand constituted a single catch; and this part of the statute may well be 
regarded as the more important, for, apart from it, it would be difficult 
in any case to obtain evidence sufficient to convict. The word "batch" 
is often used in common speech to refer to a segregated lot, as in the 
phrase "a batch of letters," quoted in the dictionary definition given 
above. 

In my opinion, the construction put upon the word by the department 
is correct. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Department of Public Safety — Steam Boilers — Licenses. 

G. L. (Ter. Ed.) c. 146, § 49, does not authorize the issuance of a license 
covering the operation of more than one plant owned by the same 
corporation. 
Said statute authorizes the issuance of two licenses to the same person 
for separate plants. 

Nov. 21, 1932. 
Gen. A. F. Foote, Commissioner of Public Safety. 

Dear Sir : — You request my opinion as to whether that part of 
G. L. (Ter. Ed.) c. 146, § 49, which provides for the granting of a special 
license to operate a steam plant authorizes the granting of a license to 
operate two separate plants owned by the same corporation. 

That part of said section 49 to which you refer reads as follows : — 

"Special licenses: A person who desires to have charge of or to operate 
a particular steam plant may, if he files with his application for such 
examination a written request signed by the owner or user of the plant, 
be examined as to his competence for such service and no other, and, if 
found competent and trustworthy, he shall be granted a license for such 
service, and no other; provided, that no special license shall be granted 



P.D. 12. Ill 

to give any person charge of or permission to operate an engine of over 
one hundred and fifty horse power, except that where the main power 
plant is run by water power exclusively during the major part of the time, 
and has auxiliary steam power for use during periods of low water, a special 
license may be issued to an applicant holding an engineer's license." 

The terms of this statute, which refer to operation of "a particular 
steam plant" and "a hcense for such service, and no other," make it im- 
possible, in my opinion, to construe the statute as authorizing the issu- 
ance of a license covering the operation of more than one plant. 

You also request my opinion as to whether said section 49 authorizes 
the granting of two licenses to the same person, to be exercised by him in 
separate plants. 

In my opinion, the statute authorizes this, if the licensing authority is 
of the opinion that it should be done. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Elections — Duties of Governor and Cowicil — Recounts — Sheriff of 
Bristol County. 

The duties of the Governor and Council in respect to the examination of 
election returns and the determination of persons elected are purely 
ministerial, and they have no power to go behind the returns to 
ascertain the true facts of an election. 

The Governor and Council have no right to staj^ their official declaration 
with reference to the office of sheriff of Bristol County pending liti- 
gation concerning the validity of the election to that office. 

Nov. 28, 1932. 
His Excellency the Governor, and the Honorable Council. , 

Gentlemen : — You have requested my opinion in the following two 
matters : — 

"First, as to the rights, if any, of the Governor and Council, in their 
canvass of the returns of the election, to go behind said returns; that is, 
whether the Governor and Council, in examining the returns and deter- 
mining who are elected, are vested with discretionary powers. 

Second, with relation to the protest of Edmond P. Talbot, sheriff of 
Bristol County, what right, if any, have the Governor and Council to grant 
the request for a stay set out in said petition?" 

The duties of the Governor and Council in respect to the examination 
of returns and the determination of persons elected are set forth in G. L. 
(Ter. Ed.) c. 54, §§ 115, 116 and 123, which provide as follows: — 

"Section 115. The state secretary shall lay before the governor and 
council the copies of the records of votes cast, with their seals unbroken. 
The governor with at least five councillors shall, as soon as may be, open 
and examine all such copies. They shall tabulate said votes and deter- 
mine who appear to be elected to the several offices, and what appears to 
be the result of the votes on any question or questions, and shall forth- 
with transmit to the state secretary an abstract of such tabulation and 
determination. The state secretary, upon application, shall furnish to 
newspapers copies of such abstract. In case of a state-wide recount under 
section one hundred and thirty-five, the state secretary shall in like manner 
lay before the governor and council the copies of the amended records 
received by him under said section, and the governor with at least five 



112 P.D. 12. 

councillors shall, if necessary, revise the aforesaid tabulation and deter- 
mination accordingly. 

Section 116. The governor shall, in the presence of at least five 
councillors, certify to the results of the examination of the copies of the 
records of the votes for governor and lieutenant governor, for councillors, 
for state secretary, state treasurer, state auditor and attorney general, 
and for senators, and shall issue his summons to such persons as appear 
to be chosen to said offices. The governor shall issue certificates of elec- 
tion to such persons as appear to be chosen to the offices of senator in 
congress, representative in congress, clerk of the courts, register of pro- 
bate and insolvency, sheriff and district attorney, which shall be counter- 
signed and transmitted by the state secretary. No certification shall be 
made or summons or certificate issued under this section until after five 
o'clock in the afternoon of the fifteenth day following a state election or, 
in case a state-wide recount is held in accordance with section one hun- 
dred and thirty-five, until- the tabulation and determination under the 
preceding section have been revised in accordance with the results of 
such recount. 

Section 123. If it shall appear to the governor and council, to the 
board of examiners, to the election commissioners or to the county com- 
missioners, that any copy of a record of votes examined by them is in- 
complete or erroneous, they may order a new copy of the records to be 
made and transmitted to them. Such new copy shall be transmitted by 
the city or town clerk within seven days thereafter, and if found to be 
correct and in conformity to the requirements of law, shall have the same 
force as a first copy." 

The duties of the Governor and Council in tabulating the votes are 
purely ministerial in character, and do not involve going behind the 
copies of the records of votes cast laid before them by the State Secretary. 

In an advisory opinion rendered to His Excellency the Governor and 
the Honorable Council of the Commonwealth of Massachusetts the Su- 
preme Judicial Court answered the following question in the negative 
(Opinion of the Justices, 136 Mass. 583) : — 

"It being the duty of the Governor and Council to transmit a certifi- 
cate of choice to the district attorneys and sheriffs who have been elected 
at any election duly held, in determining who is chosen, have the Governor 
and Council the power to examine and recount the ballots given in such 
elections in the several cities and towns, or either of them, in order to 
ascertain the true result thereof, the ballots having been sealed up and 
preserved according to the law by the clerks of the several cities and 
towns, within the counties and districts respectively, more than one per- 
son claiming an election to such office, and contesting the election of 
another person thereto before the Governor and Council?" 

The duties of the Governor and Council in relation to the examination 
of returns and determination of persons elected are of the same general 
nature as the duties of the board of examiners in relation to returns for 
county commissioners. G. L. (Ter. Ed.) c. 54, § 122. 

The Supreme Judicial Court, in the case of Luce v. Mayhew, 13 Gray, 
83, has discussed in detail the nature of the duties of the board of exam- 
iners. The principles set forth in that discussion are equally applicable to 
the Governor and Council (pp. 84-85) : — 



P.D. 12. 113 

" It is obvious, from an examination of these statutes, that the duties of 
the board of examiners are simply ministerial. By § 18, of c. 14 of the 
Rev. Sts., they are required to meet at a time specified, and to 'examine 
the returns of votes transmitted to them, and, if any person shall be 
found to have a majority of all the ballots,' to give the person elected writ- 
ten notice of his election. By subsequent statutes, the time of their 
meeting is changed, and a 'plurality' of votes is substituted for a 'ma- 
jority.' They are not made a judicial tribunal, nor authorized to decide 
upon the validity or the fact of the election, in any other mode than by an 
examination of 'the returns' made to them, according to law. They are 
not required or authorized to hear witnesses, or weigh evidence. They 
have no power to send for persons or papers. If one result appears upon 
the returns, and another is the real truth of the case, they can only act 
upon the former." 

G. L. (Ter. Ed.) c. 54, §§ 115 and 116, provide that the "governor with 
at least five councillors shall, as soon as may be, open and examine" the 
copies of records of votes cast, and "shall tabulate said votes and deter- 
mine who appear to be elected to the several offices," and "the governor 
shall issue certificates of election to such persons as appear to be chosen 
to the offices of . . . sheriff. ..." 

Any contest concerning a contested election in the courts of this Com- 
monwealth is a proceeding entirely independent of and divorced from 
the canvassing of votes by the duly authorized officers and the issuance 
of a certificate of election. It is not within the province of the bod}^ em- 
powered solely with the ministerial duty of canvassing the votes and is- 
suing certificates of election to consider any claims of contestants to the 
said office, which might properly be made the subject of appropriate 
litigation by the claimant. Luce v. Board of Examiners, 153 Mass. 108. 

In my opinion, the Governor and Council have no right, in their can- 
vass of the returns of the elections, to go behind said returns, and they have 
no right to stay their official declaration with reference to the office of 
sheriff of Bristol County pending the adjudication of any contested mat- 
ter in connection with the election to said office in the courts of the Com- 
monwealth. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Department of Education — Cities and Towns — Reimbursement for Adult 

Education. 
Reimbursement to cities and towns for adult education, under G. L. 
(Ter. Ed.) c. 69, §§ 9 and 10, must be confined to actual expenses of 
supervision and instruction. 

Nov. 29, 1932. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir : — You have asked my opinion with relation to the duties 
of 3^our department as they concern reimbursement to towns for expenses 
incurred under G. L. (Ter. Ed.) c. 69, §§9 and 10, in the following 
language : — 

"G. L. (Ter. Ed.) c. 69, §§ 9 and 10, provide reimbursement to cities 
and towns for one half the amount expended for supervision and instruc- 
tion in the use of English for adults unable to speak, read, or write the 
same, and in the fundamental principles of government and other sub- 
jects adapted to fit for American citizenship. 



114 P.D. 12. 

Heretofore, this legislation has been interpreted to include, besides 
salaries for instruction and supervision, such other items as clerical 
service, books and supplies, and advisory service in the preparation of 
first and second papers for citizenship; such advisory services being not, 
in many cases, for those who are enrolled for class instruction. 

Would the Department of Education be acting within the intent of the 
law in approving reimbursement to cities and towns only for salaries of 
supervisors and teachers in the subjects enumerated above, and for all 
or such part of the salaries of school supervisors as are actually charge- 
able to the supervision of class instruction in the subjects mentioned in 
the law providing for reimbursement?" 

G. L. (Ter. Ed.) c. 69, §§9 and 10, read as follows: — 

"Section 9. The department, with the co-operation of any town 
applying therefor, may provide for such instruction in the use of English 
for adults unable to speak, read or write the same, and in the funda- 
mental principles of government and other subjects adapted to fit for 
American citizenship, as shall jointly be approved by the local school 
committee and the department. Schools and classes established therefor 
may be held in public school buildings, in industrial establishments or in 
such other places as may be approved in like manner. Teachers and 
supervisors employed therein by a town shall be chosen and their com- 
pensation fixed by the school committee, subject to the approval of the 
department. 

Section 10. At the expiration of each school year, and on approval by 
the department, the commonwealth shall pay to every town providing 
such instruction in conjunction with the department, one half the amount 
expended for supervision and instruction by such town for said year." 

Formerly said section 10 read as follows : — 

"At the expiration of each school year, and on approval by the de- 
partment, the commonwealth shall pay to every town providing such 
instruction in conjunction with the department, one half the amount 
expended therefor by such town for said year." 

St. 1921, c. 484, amended said section 10 in its then form by striking 
out the word "therefor" and inserting in its place the words "for super- 
vision and instruction," leaving the section in the form in which we now 
have it (as quoted above) in the Tercentenary Edition of the General 
Laws. 

Whatever interpretation may have been placed upon the phraseology 
of said section 10 in its earlier form, as to the extent to which the Com- 
monwealth should reimburse towns for expenses incurred in carrying out 
the provisions of said section 9, it is made plain by the act of the Legis- 
lature in amending such phraseology and in employing the wording now 
to be found in said section 10, that it was the intent of the Legislature 
that reimbursement should not extend beyond the actual expenses of 
supervision and instruction. Such expenses would ordinarily embrace no 
more than compensation paid to teachers and supervisors for instruction 
given in the use of English, in the fundamental principles of government, 
and other subjects adapted to fit for American citizenship, as described 
in and given under the conditions set forth in said section 9. 

Accordingly, I answer your question in the affirmative. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 115 



INDEX TO OPINIONS 



PAGE 

Animal Industry, Director of; tuberculin test; reimbursement ... 70 

Armories; purchase of supplies and office furniture; approval by Governor 89 
Auditor of the Commonwealth; duties; accounts of Teachers' Retirement 

Board 36 

Prison-made goods 34 

Banks; co-operative banks; investments; bonds of the Boston Metropoli- 
tan District 60 

Savings banks; investments; railroad bonds 72 

"Batch of clams"; definition 109 

Civil service; assistant deputy at the Massachusetts Reformatory; appoint- 
ment 43 

"Charitable institution"; city infirmary; warden 104 

Inspector of plumbing of the city <jf Haverhill 94 

Labor service; failure to register 45 

Norfolk State Prison Colony; officers and employees 46 

Police Commissioner for the City of Boston ; employees .... 58 

Police matrons 56 

Reinstatement of employee; conviction 59 

Sealers of weights and measures; tenure 38 

Secretary of the Department of Industrial Accidents 99 

Veteran; army service 105 

Conservation, Department of; forest wardens; fines; expenditures under 

supervision of selectmen 48 

Constitutional law; obligation of contract; municipal bonds .... 63 

Corporations; shares without par value and with par value; fees ... 90 
County commissioners; authority to lease a building for district court 

purposes 55 

Credit unions; pledge of securities; limitation of withdrawals; debts . 76 

District attorneys; payment of traveling expenses; counties .... 93 
Education, Department of; reimbursement of cities and towns for adult 

education 113 

Elections; recounts; duties of Governor and Council; sheriff of Bristol 

County Ill 

Eminent domain; public utility company; Mill Act 40 

Fraternal benefit society; election of officers by members; representative 

form of government 106 

Meetings; Lord's Day 66 

Inspection of buildings of the Commonwealth while under construction; 

licenses 86 

Insurance; broker; exemption from fee; navy service 32 

Domestic and foreign mutual companies; "guarantv fund"; "guarantv 

capital" " .... \ 100 

Life insurance policy; conversion into new policies 33 

Labor; hours of work; public work; contractor; Saturday half holiday . 92 

"Textile goods" 62 

Veterans' preference 108 

Labor and Industries, Department of; minors; dangerous trades ... 39 

License; lubricating oil; stores; explosives 77 

Operation of steam boilers 110 

Transient vendor; agent 82 



116 P.D. 12. 

PAGE 

Minors; dangerous trades 39 

Minimum wages; females; "minor" 105 

Motor vehicles; towing disabled motor vehicle; registration; operation 96 
Public buildings; purchase of supplies and office furniture; approval by 

the Governor 89 

Retirement; county employees; clerk of a district court 65 

Court and probation officers 67 

Worcester County Tuberculosis Hospital; county agricultural schools . 29 
Employees of the Commonwealth; superintendent of the Massachusetts 

Nautical School 42 

State Retirement Association; members; resignation on seventieth birth- 
day; refund of contributions 96 

Teacher; basis for assessments; salary 53 

Length of service . ■ 81 

Teachers' annuity fund; repayment by employee 70 

Treasurer and Receiver General; issue of notes; payment without appro- 
priation 79, 87 

Trust company; savings department; borrowing; pledging securities . 49, 57 

Veteran; army service; civil service 105 

Wages; weekly payment; post-office building on government land; jurisdic- 
tion of the Commonwealth 91 



P.D. 12. 117 



RULES OF PRACTICE 

In Interstate Rendition. 

Every application to the Governor for a requisition upon the executive authority 
of any other State or Territory, for the deHvery up and return of any offender 
who has 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 : — 

(o) The full name of the person for whom extradition is asked, together wath 
the name of the agent proposed, to be properly spelled. 

(b) 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. 

Xd) That the person named as agent is a proper person, and that he has no 
private interest in the arrest of the fugitive. 

(e) If there has been any former application for a requisition for the same person 
growing out of the same transaction, it must be so stated, with an explanation of 
the reasons for a second request, together with the date of such application, as 
near as may be. 

(/) If the fugitive is known to be under either civil or criminal arrest in the 
State or Territory to which he is alleged to have fled, the fact of such arrest and 
the nature of the proceedings on which it is based must be stated. 

(g) That the application is not made for the purpose of enforcing the collection 
of a debt, or for any private purpose whatever; and that, if the requisition applied 
for be granted, the criminal proceedings shall not be used for any of said objects. 

(h) The nature of the crime charged, with a reference, when practicable, to 
the particular statute defining and punishing the same. 

(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 duplicate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and circum- 
stances showing the commission of the crime charged, and that the accused perpe- 
trated the same, must be shown by affidavits taken before a magistrate. (A notary 
pubhc is not a magistrate within the meaning of the statutes.) It must also be 
shown that a complaint has been made, copies of which must accompany the 



lis 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. C-'33. Order 7247.