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

Public Document 



No. 12 



Ctie Commontoealtl) of Q^a0$ac|)u$ettiB! 



REPORT 



ATTORNEY GENERAL 



FOR THE 



Year ending November 30, 1933 




Public Document No. 12 



Ctie Commontoealti) of e^atsatbusctte 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1933 




Cf)e Commontoealtt) of ^a00ac|)U0ett0 



Department of the Attorney General, 
Boston, January 17, 1934. 

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, 1933. 

Very respectfully, 

JOSEPH E. WARNER, 

Attorney General. 



Cf)e Commontoealtl) of g^a00acl)U0ett0 



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. 
Sybil H. Holmes. 

Chief Clerk. 
Louis H. Freese. 

Cashier. 
Harold J. Welch. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Year. 

General appropriation for 1933 $101,034 60 

Appropriation for small claims 5,000 00 

Appropriation under St. 1931, c. 458 4,000 00 



$110,034 60 



Expenditures. 

For salary of Attorney General $7,200 00 

For salaries of assistants $40,871 11 

For salaries of all other employees 19,514 80 

For legal services in Dominion of Canada . . . 583 18 

For sheriffs' fees, court stenographers, witness fees and 

all other special services 16,865 13 

77,834 22 

For law library $739 18 

For office expenses and travel 3,641 04 

For court expenses 1,222 93 

5,603 15 

For small claims 4,760 31 

Total expenditures $95,397 68 



Cije Commontoealtli of q^a$0ac|)u$ett0 



Department of the Attorney General, 
Boston, January 17, 1934. 



To the Honorable Senate and House of 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 the year ending 
November 30, 1933, to the number of 8,303, are tabulated below: 



Corporate franchise tax cases ..... 

Extradition and interstate rendition .... 

Land Court petitions ....... 

Land-damage cases arising from the taking of land: 

Department of Public Works .... 

Department of Mental Diseases .... 

Department of Conservation .... 

Department of Correction ..... 

Metropolitan District Commission 

Metropolitan District Water Supply Commission 
Miscellaneous cases ....... 

Petitions for instructions under inheritance tax laws 
Public charitable trusts ...... 

Settlement cases for supf>ort of persons in State hospitals 

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 .......-• 

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

Disposed of .......... 24 

Now pending .......... 21 



2,071 

147 

46 

415 

2 

1 

2 

114 

43 

618 

48 

324 

14 



4,413 
45 



6 P.D. 12. 

THE DEPARTMENT OF THE ATTORNEY GENERAL. 

The Department of the Attorney General performs those services which, by 
common law or by statute, are the duties of the Attorney General as the chief law 
officer, in all civil and criminal matters affecting the Commonwealth. 

The Attorney General: Jurisdiction. 
hi Criminal Matters. 

In criminal matters the function of the Attorney General is prosecution of crime; 
it is not the detection of crime nor the apprehension of the criminal, wliich are the 
functions of the police. 

By statute, ^ the Attorney General is required to "take cognizance of all violations 
of law." 

By "\nolations", necessarily, is meant such alleged violations, composing mis- 
demeanors, but chiefly felonies, as may be evidenced by facts which it is the duty 
and responsibility of the police first to secure to enable cognizance. By "cogni- 
zance "is meant the taking notice of such -violations, so e\'idenced, as are, by statute, 
within the duties and means of the Attorney General or District Attorneys, - or 
both, to prosecute, effected by the institution and conduct of prosecutions for such 
violations. 

In Civil Matters. 

In civil matters, except in matters in which some statute provides that counsel 
may be employed by some particular commission or board, the Attorney General 
is the sole officer authorized to represent the Commonwealth. 

I. Administration of Laws for Prosecution of Crime. 

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

By statute ^ the Attorney General may call upon the District Attorneys to assist 
him and to act for him in respect to the performance of any duties imposed upon 
him, except those required to be performed by him personally. ^ As, for the ad- 
ministration of criminal law, the Commonwealth has been di\dded into districts and 
provision made therefor, by special creation in each district, of the offices of Dis- 
trict Attorney,'' and as the Attorney General may effect criminal proceedings gener- 
ally only to such extent as funds may be appropriated and authorized, ' in practice, 
through legislative imphcation, the functions of prosecution, apart from those 
required to be had by the Attorney General personally or when present, are per- 

■ G. L., c. 12, § 10. 

2 Northern District (Middlesex), Warren L. Bishop, Wayland. 

Eastern District (Essex), Hugh A. Cregg, Methuen. 

Southern District (Nantucket, Dukes County, Barnstable and Bristol), William C. Crossley, Fall 
River. 

Southeastern District (Norfolk and Plymouth), Edmund R. Dewing, Wellesley. 

Middle District (Worcester), Edwin G. Norman, Worcester. 

Western District (Hampden and Berkshire), Thomas F. Moriarty, Springfield. 

Northwestern District (Hampshire and Franklin), Joseph T. Bartlett, Greenfield. 

Suffolk District, William J. Foley, Boston. 
» G. L., c. 12, §27. 
* G. L., c. 12, §§ 12, 13. 



P.D. 12. 7 

formed ordinarily by the District Attorneys and their assistants; and the function 
of the Attorney General, in the active superintendence and management of all 
criminal cases ordinarily occurring in any district, is exercisable only in instances 
where "exigencies of public welfare", as determined by him, require intervention^ 
or supersession. 

The practice of discretionary trial by the Attorney General of all capital cases ^ 
was discontinued two decades ago, for many reasons. 

With respect to prosecutions by grand jury indictments, the powers of the Attor- 
ney General and the District Attorney are alike, except that there may be a special 
grand jury summoned to hear, consider and report on such matters as the Attorney 
General may present, upon "a certificate that pubhc necessity requires such action, 
signed by the chief justice of the superior court." ^ 

Conferences of the Attorney General, District Attorneys and Assistants. 

The Attorney General and the District Attorneys held four conferences and a 
special conference of the District Attorneys and their assistants, not onl}^ for the 
consultations prescribed by statute, ^ but for the purpose of action toward prosecu- 
tion of all reported violations of the banking laws and toward legislation by the 
General Court, then in session, to enable prosecution of acts not then unlawful and 
to enable greater unity of action between law enforcement agencies in the suppres- 
sion of prevalent crime.* 

' Commonwealth v. Kozlowsky, 238 Mass. 379. 

^ G. L., c. 12, § 6. 

3 G. L., c. 277, § 2A. 

* The March conference recommended changes in the banking laws (Senate Bill No. 419): (1) to enable 
the Commissioner of Banks to make audits as well as examinations of banks; (2) to require the Commis- 
sioner to report violations of laws by savings banks and trust companies and any other banks; (3) to 
prohibit any bank official from receiving any profit, except in certain instances, from transactions involving 
his duties; (4) to prohibit changes in collateral security held in savings departments of trust companies 
or the making of loans or investments from such funds unless first approved by the investment committee, 
or made in compliance with rules first adopted by such committee, with the approval of the Commissioner; 
(5) to prohibit loans by savings banks upon the stock or bonds of ordinary business corporations in excess 
of 80 per cent of the value as fixed by the investment committee (now St. 1933, c. 334); (6) to enable 
prosecution of persons, other than bank officials, causing violations of banking laws. 

The June conference recommended a program for crime suppression, copies of which recommendations 
were sent to the Governor, the President of the Senate and the Speaker of the House of Representatives, 
as follows: 

1. That every District Attorney will immediately aid in the capture and return to other States of all 
gangsters and racketeers seeking refuge here. 

2. That when heinous crime occurs in a district, the District Attorney should be immediately notified 
by the police. 

3. That heinous crime shall be presented at once to a grand jury, if sitting, and wiU be tried immediately. 

4. That police departments use all authority in the pursuit and arrest of a criminal fleeing beyond the 
bounds of a municipality. 

•5. That the police department of any city or town shall aid the police of any other city or town on re- 
quest for such aid by the chief of such department. 

6. That measures be effected to enable every police department in the State to be notified immediately 
whenever a heinous crime has been committed and the perpetrator is at large. 

7. That measures be effected for notifying every police department in the State when the department 
of any one municipalit5- learns of the con)ing or of the presence ol notorious criminals in any part of the 
Commonwealth. 

5. Ttiat if the presence of gangsters in any locality becomes known, police dep.artments shall immediately 
take action; and that investigation be made to consider what measures, if any, may be taken for the en- 
abling of the police to hold persons known to be dangerous characters and known to be criminally disposed 
so that they cannot be at large and commit heinous crimes. 

9. That every police department, where possible, be equipped with radio, so that all departments shall 
be linked up to enable immediate notice of the escape of a criminal and his apprehension. 



8 P.D. 12. 

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

Mr. Bishop (Middlesex) reports that in Middlesex County there are pending 50 
felonies and 81 misdemeanors; that the jail is clear except for those defendants 
who are charged with murder; that an arson ring was broken up after pleas of 
guilty during the trial and sentences of imprisonment; that a drive against gambhng 
and slot machines has stopped their wide operation in the district; that 7 collection 
agency rackets have been crushed; that perpetrators of the "Gift Family" scheme, 
wherein some mysterious benefactor would return 50 per cent on any investment 
within three months, were sentenced to long-term imprisonment; that a "used car 
buying racket", advertising the purchase of used cars for cash but paying only a 
small amount in cash with balance in worthless checks and notes, ended with the 
imprisonment of its operators; that a racket, whereby persons pretending that for 
a sum paid by an accused they could "fix" a case with the District Attorney's 
office, ended with long-term sentences; that a conviction with a year's sentence 
in the House of Correction and from four to six years in the State Prison was the 
first severe sentence in the Commonwealth for infractions of law ha\dng to do with 
banks; that there has been co-operation with the Special United States Assistant 
Attorney General, designated to prosecute cases arising out of the Federal National 
Bank of Boston, and involving affairs with the Inman Trust Company, to enable 
Federal prosecution; that a brutal assault upon an attorney, in revenge for acts 
done by him as a trustee in bankruptcy, was penalized by State Prison sentences of 

10. That discussions be had with the heads of police departments to ascertain to what extent a central 
clearing house of information and the use of the finger-print system and other means of identification may 
be utilized and rendered more immediately available to the police departments of the several cities and 
towns. 

11. That chambers of commerce and associations of businesses and trades make known to the Attorney 
General any hazards of trade through the demands of racketeers for money. 

12. That study be made to effect uniformity in the decisions of all courts in the imposition of fines and 
imprisonment. 

13. That study be made to ascertain to what extent persons charged with crime secure advantages, legal 
and otherwise, as against the rights of the people. 

14. That investigation be made to ascertain to what extent there is uniformity in the rules and practices 
of the various police departments, and to ascertain to what extent any further measures may be required 
to encourage and to sustain all police service. 

15. That the punishment for the crime of kidnapping accompanied by attempt to extort be increased 
to life imprisonment. 

16. That no professional criminal, gangster or racketeer be released on parole. 

17. To persist in these efforts until every gangster has been exterminated and future invasion by them 
is rendered impossible, so that legitimate business and the lives of our people shall not be subjected to the 
gun of the gangster and the rule of the racketeer. 

The September conference pledged support of the proposed Federal measures for crime suppression and 
co-operation with the United States Department ol Justice. 

The December conference noted that the apprehension of bandits is the problem of police agencies, and 
advocated any measures to enable the placement of every facility at the disposal of such agencies; pledged 
rigorous prosecution of violations of the liquor laws and urged licensing boards to decline to grant licenses 
before investigation of any criminal records of applicants, and resolved upon recommendations submitted 
in the report. 

After adopting resolutions, the conference adjourned in respect to the memory of Winfield M. Wilbar, 
late of Brockton, and District Attorney for the Southeastern District. 

i List of capital cases and disposition is appended. 



P.D. 12. 9 

seven to ten years and fifteen to eighteen years ; that in 3 ^ murder cases convictions 
were obtained, but appeals are pending in higher courts. 

Mr. Cregg (Essex) reports that all triable cases on the criminal docket were dis- 
posed of; that 5 cases of murder, occurring between February 15 and August 15, 
were disposed of before August 20; that there was an unexpended balance. 

Mr. Crossley (Nantucket, Dukes, Barnstable and Bristol) reports that there are 
no criminal cases pending in the counties of Dukes County and Nantucket; only 40 
in Bristol and 10 in Barnstable; that in the County of Dukes County 10 cases were 
disposed of (5 felonies and 10 misdemeanors) ; in Nantucket, 20 cases (5 felonies 
and 15 misdemeanors) ; in Bristol, 1,480 cases (616 felonies and 864 misdemeanors) ; 
and in Barnstable, 150 cases (60 felonies and 90 misdemeanors); that in April, at 
New Bedford, there were convictions in 3 ^ first degree murder cases, all in three 
weeks; that in Barnstable, on June 24, after two weeks' trial, there was a comac- 
tion for a kidnapping, which occurred May 2d, with the maximum sentence of 
twenty-four to twenty-five years in the State Prison.' 

Mr. Dewing* (Norfolk and Pljinouth) reports that in Norfolk there are 34 
felonies and 122 misdemeanors pending for trial;* that in Plymouth County 26 
felonies and 152' misdemeanors are pending for trial ;^ that in furtherance of the 
purpose of prosecuting those who have gone bail more than the statutory five times 
in a year, indictments have already been obtained;* that despatch of justice is 
exemplified in the recent Brookline holdup, where defendants were indicted for 
armed robbery, and in twenty-four days were arrested and sent to jail for long 
terms; that arson cases have been vigorously pressed, with convictions. 

Mr. Norman (Worcester) reports that there are 1 felony ' and 40 misdemeanors 
pending for trial; that 304 felonies and 486 misdemeanors were disposed of; and 
that in the one indictment which was for first-degree murder, the defendant was 
committed for mental incapacity. 

1 Cases of Annie Wita (convicted of second degree murder of her husband by pouring gasoline over him 
and setting him on fire; sentenced to life imprisonment; appeal pending in the Supreme Judicial Court). 

Snyder and Donnellon (exceptions of defendants, involving question of constitutional right to be present 
at the view taken by the jury overruled by the Supreme Judicial Court, and the question was argued in the 
United States Supreme Court by the Attorney General; decision Jan. 8, 1934, sustaining the decision of 
the Supreme Judicial Court) . 

2 The cases of Louis Gwizdowski (appeal to the Supreme Judicial Court; conviction in second degree 
upheld). 

Anthony F. Ladish and Walter Watkins (conviction in second degree; imposition of sentence of life 
imprisonment) . 

Arthur B. Manchester (conviction in first degree; commutation of sentence of death to life imprison- 
ment). 

'May 2, Margaret ("Peggy") McMath kidnapped. 

May 6, two defendants apprehended, charged with the crime of kidnapping; May 8, brought before 
District Court in Provincetown, grand jury specially convened, and defendants indicted; subsequent trial 
at a special session of the Superior Court; one defendant acquitted, the other convicted. 

* Mr. Wilbar deceased Sept. 29, 1933, after having served as District Attorney for eleven years. Mr. 
Dewing qualified Oct. 11, 1933. 

' This does not include 7 felonies and 57 misdemeanors pending for sentence. There were 122 indict- 
ments brought in by the December (1933) grand jury which were disposed of in three weeks' trial, with 
the exception of about 8. 

» The number of pending misdemeanors includes 79 cases arising out of the controversies on the cran- 
berry bogs. 

' This does not include 17 felonies and 37 misdemeanors pending for sentence. It is expected that the 
February (1934) term at Plymouth will effect a normal condition of the misdemeanor list. 

' Some defendants went bail anywhere from eight to eighteen times within a year. 

• The principal witness was in England, and the case, therefore, could not be tried. 



10 P.D. 12. 

Mr. Moriarty (Hampden and Berkshire) reports that armed robberies have been 
checked in the district; that convictions were obtained in nearly every case of 
armed robbery and burglary, and in one capital case; that a drive against gambUng 
and slot machines resulted in practical clearance of these operations in the district; 
that, in one such case, 39 defendants were arrested and pleaded guilty, and machines 
of a value of $5,000 were confiscated; that there have been con^^ctions in large scale 
fraudulent lotteries; and that the condition of the criminal docket is such as to 
permit readiness for trial and disposition of cases as they occur. 

Mr. Bartlett (Hampsliire and Franklin) reports that in Hampshire there are no 
felony cases pending and few misdemeanors on appeals from the district courts; that 
in Franklin there are but one-fifth as many appeals, and that both dockets may be 
early cleared; that after trials involving violations of automobile laws with death 
or injuries, for wilful and malicious attempts to burn buildings, for larceny and 
steahng in certain mortgage investment transactions, there were convictions and 
sentences; that there were two ^ capital cases, resulting in first-degree verdicts. 

Mr. Foley (Suffolk) reports that there are but 500 cases pending in this busy 
district, as compared with 1,000 a year ago. 

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 revocation 
of license on failure to satisfy judgments recovered, and for conformity to rules estab- 
lished by the Superior Court. "^ 

This recommendation was made last year. Though surety companies may fail 
to satisfy judgments, they may not be prohibited from continuing to act as bonds- 
men. 

2. That when a person qualifies as surety by real estate in bail cases involving felony 
a lien shall be recorded against the real estate until the case is finally disposed of or 
until the court otherwise orders. 

This recommendation has been repeatedly made. Prosecution for disposing of 
or encumbering the real estate during pendency does not compensate the Common- 
wealth for defeat of the bail. 

3. That surety companies organized under the laws of other States shall retain voith 
the Department of Insurance adequate reserves in this Commonwealth to cover their 
liability on bail bonds. 

There have been cases where, after forfeiture, bails proved worthless in conse- 
quence of insolvency of such foreign companies and of action by the State where 
organized.' 

4. That where real estate is offered on bail bonds, the signature of the consort of the 
owner thereof be required in order that dower and curtesy rights shall not interfere with 
the foreclosure of the same. 

5. That provision be made permitting the county treasurer to bid in property on bail 
bonds at a sheriff's sale after scire facias proceedings; 

' Cases of Edward Stanisiewski, H.ampshire County; Harry Clay Bull, Franklin County. 
2 Effected by striking out. in G. L. (Ter. Ed.) c. 276, § 61B, line 28, the words "surety companies or to." 
' If the change suggested in the note under paragraph 1 is made, this may be made the subject of a rule 
of the Superior Court. 



P.D. 12. • 11 

That provision be made as to the holding and disposing of such property by the county, 
to the end that forfeited bail may be more easily collected; 

That provision be made for service by publication upon absent defendants upon the 
issuance of scire facias process, so that judgment may be obtained and execution levied 
against the property even in the event the surety and the principal are not to be found 
within the jurisdiction; 

That, in the event of foreclosure of mortgages on property, entirely extinguishing the 
equity, and, in instances where it is not possible or feasible to proceed against real 
estate or other property pledged as bail, or where service may not be obtained, provision 
be made for the filing of scire facias cases by the court, pending ultimate location of 
parties involved, or a final disposition of the case, to avoid repetition of issuance of new 
orders of notice to no purpose; 

That professional bondsmen and others be prohibited from procuring other property 
owners to serve as sureties for customers of such bondsmen and from charging a fee 
therefor. 

6. That the entire code of criminal procedure be revised so that the rights of the people 
be equal or paramount to the rights of the individual. 

Conferences 1 of the Attorney General and Every Public Police Agency 
IN THE Commonwealth. 

In furtherance of the discharge of responsibility of the Attorney General for 
cognizance of all violations of law, several conferences were had, primarily, to con- 
sult to secure common action by such agencies in their respective jurisdictions 

' On June 28 a conference was called by the Attorney General to which the heads of every public police 
agency in the Commonwealth were invited, and at which the Commissioner of Public Safetj-, the Captain 
of the Metropolitan District Police, the Police Commissioner of the city of Boston, and the chiefs of the 
police departments of many of the cities and towns in the Commonwealth were present. 

This conference was called for the purpose of enabling consultation and deliberation of all law enforce- 
ment officers, charged with the responsibility of detecting crime and of apprehending criminals, with the 
chief law officer, charged with the general responsibility of their prosecution, to the end that activities might 
be undertaken in concert by such police agencies for the protection of the lives and property of the people 
by riddance and exclusion of gunmen and racketeers and of general prevalent criminal conditions, and to 
the end that measures be considered for perfecting unity and celerity of efficient action by the several 
separate agencies in such detection of crime and apprehension of criminals, whereby prosecutions could 
ersue. 

Certainty of prosecution may be no effective deterrent to crime if there be no certainty of detection of 
crime and of arrest of criminals and of acquiring of evidence. The Attorney General urged immediate 
action to the end that, as the sources of income sustaining the racketeer and gangster come not only 
from robbing of persons and looting of stores and from systematized extortion, but greatly from profits in 
the operation of gambling slot machines and pools, there might be suppression, by arrest and by confisca- 
tion, of such lucrative sources of supply, and that, aside from the fact that such machines and pools were 
illicit, there might be blotted out a spectacle of social injustice, whereby the lawless were living without 
working while the law abiding were lacking work for honest living. 

The conference pledged common action. It urged study by persons having to do with the prosecution 
of crime and with crime control procedure, having to do with correction of crime, imprisonment, probation 
and parole, and having to do with crime prevention affected by social, economic, domestic and general 
conditions. It urged financial support by the people of the cities and towns for the maintenance of suf- 
ficient police personnel and adequate equipment. It appointed a committee for proposal of a means for 
co-ordinating the various police agencies. 

Among other measures of general pertinence, the following suggestions were made as promotive of im- 
proved police service and as deterrents to crime: 

(a) Extension of radio and teletype. 

(6) Imprisonment for a long term of years for threatening witnesses. 

(c) That members of the police department be not dismissed except for cause, and in the event employ- 
ment is temporarily dispensed with, they be retained in good standing. 

{d) That chiefs of police having had a certain period of service be placed under civil service. 



12 P.D. 12. 

against the menace of crimes of violence and for riddance of any gambling pro- 
moters, gangsters and racketeers commorant therein; secondarily, to propose 
measures which, by legislative sanction, would enable the units of the State Police, 
of the Metropolitan District Police, and of the police departments of the individual 
35 cities and 316 towns to co-operate effectively for the protection of the lives and 
property of the people from armed banditry through the creation of some single 
responsible authority, without surrender of the prerogatives of any one unit over 
its routine affairs; and further, to stress the importance of the maintenance, unim- 
paired in personnel or in equipment, of all existing departments, modernized by 
radio and teletype acconamodation, to meet the exactions of present-day police 
protection. 

(e) That, though G. L. c. 41, § 99, enables use of police of other cities, arrangement be effected to en- 
able more frequent use. 

(/) That manufacture and possession of machine guns, submachine guns and bombs be prohibited except 
for and by police officers. 

(0) That Congress be petitioned to prohibit interstate shipment of machine guns, submachine guns, etc. 
(ft) That there be change in the law relating to misappropriation of automobiles, either increasing the 

penalty or providing that the taking of an automobile shall be larceny instead of misappropriation. 

(i) That any person engaged in an illegal occupation or who bears an evil reputation, and with illegal 
purpose consorts with thieves or criminals or frequents unlawful resorts, shall be guilty of disorderly con- 
duct. 

0') That there be public prosecutors to present the government's case in district and municipal courts 
as in the Superior Court. 

(k) That there be arrangement by some mode whereby there may be uniformity in sentences for and 
disposition of similar offences in all courts. 

On July 22 the Legislature made provision, upon special message of His Excellency the Governor for 
the creation of a commission to investigate relative to the prevalence of crime and means for the suppres- 
sion thereof. 

On October 5 the Attorney General appealed to the chiefs of the several cities and towns, and upon their 
invitation, in consequence of a series of bank and payroll robberies in the Metropolitan district (September 
28, South Station mail robbery; October 1, Everett department store; October 2, Brookline Trust; Oc- 
tober .3, Somerville payroll; October 4, W'est Medford payroll and murder), for immediate consultation as 
to similarity in commission of these crimes; for immediate charting of city and town ways and blocks, 
having banks or treasure, to enable barricades to prevent escapes; for immediate conference with all busi- 
ness, amusement and banking houses for devising greater protective devices and for co-operation between 
them and the police. 

On October 19, the adjourned conference voted to recommend, as a means for enabling co-ordinative 
and contemporaneous action bj' all police agencies in the Commonwealth, the following: 

1. That there be a standing Grand Police Council, consisting of the head of every police agency in the 
State, the chairman to be designated by the Governor, to meet at such times as called together by an 
advisory commission, for consultation and for discussion on matters relating to crime. 

2. That there be an Advisory Commission on Police Affairs of five persons, the chairman to be designated 
by the Governor, one member to be the Commissioner of Public Safety, four members to be appointed by 
the Governor, of whom three shall be responsible officers of police departments of any city or town in 
Massachusetts. 

That this commission have power — 

(1) To call meetings of the Grand Council of Police for advice and consultation. 

(2) To recommend definite measures relating — 

(a) To adoption of uniform practices and of improved practices in any particular community; 
(6) To establishment of police schools; 

(c) To creation and use of a central service for identification of criminals, and dissemination of impor- 
tant information to all police departments to enable immediate concerted action; 

(d) To installation of devices and methods for detection and apprehension of criminals, and of gunmen 
and racketeers in particular; 

(e) To use of any department to aid another or the Commission; 

(/) To aiding smaller communities in the event such be without an established police force; 

(ff) To ascertaining all the facta in event of occurrence of serious crime and of escape of the criminal 
undetected. 

(.h) To formulation of methods whereby co-ordinated and co-operative activities may be conducted 
simultaneously by police departments of the now 316 separate towns and 35 separate cities. 

3. To report to the Governor yearly on December first, and at such other times as he may require. 



P.D. 12. 13 

The Status of the Agencies in the Commonwealth provided for Law En- 
forcement THROUGH the DETECTION OF CrIME AND APPREHENSION OF THE 

Criminal. 

Law enforcement, as effected by and dependent upon detection of its violation, 
and upon apprehension of violators, is the responsibility neither of the Attorney 
General nor of the District Attorneys. It is the responsibiUty of the police. 

Law enforcement, as effected by and dependent upon prosecution of violations, 
triable in the Superior Court, is the responsibility of both the Attorney General 
and the District Attorneys. 

Law enforcement, as effected by and dependent upon detection of crime and 
apprehension of criminals, is had by the various police agencies, namely, the indi- 
vidual police departments in the several cities and towns with respect to their own 
areas, the State Pohce with respect to the Commonwealth generally, and the Metro- 
politan District PoUce with respect to the metropolitan area, and by sheriffs, to 
some extent, in their own counties. 

The police departments of the cities and towns are confined to their own areas. 
They are responsible solely to whatever political administration may be in charge 
of local governmental affairs. In personnel, equipment, competency and activity 
they are necessarily representative of the conmiunity, creating and maintaining 
them, in the enforcement of law in such communities upon the attitude of the politi- 
cal administration of local government, and upon the capacity of the local police 
officials and membership. Neither the Governor, as chief magistrate, endowed with 
native concern for the welfare of the people, nor the Attorney General, as chief 
officer supposedly endowed with the concern of crime suppression, nor the District 
Attorney, charged with concern of prosecution of crime within his district, has any 
direction or control of the affairs of any police department in an}^ community. 

The existence, prevalence or absence of crime in any community is the concern of 
the police department in, and indirectly of the people of, such community. 

As now constituted, the police department of any city or town is no more subject 
to response to the direction, order or request of a State officer charged with the 
responsibility of prosecuting crime than is a fire department of such city or town. 

It is apparent, therefore, that no agency may cope with crimes of violence and 
predatory crimes single-handed.^ It is also evident that, as the several cities and 
towns maintain at their own expense their own local departments, their direction, 
control and management may not be more efficiently and justly and wisely accom- 
phshed by some single State official or board. But it is also evident that the people 
of the entire Conunonwealth have as much concern in the presence of dangerous 
criminals in the State as have the inhabitants of any single community where they 
may perpetrate some single crime, and that officials of the Commonwealth charged 
with responsibility for preservation of law and order, protection of life and property, 
and of law enforcement by prosecution should have avail to the uses of departments 
in cities and towns for concerted action to discharge such responsibility. Without 

' My predecessor, the Honorable Jay R. Benton, first advanced the unification of the police departments 
of Metropolitan Boston, extension of radio broadcast, central criminal identification bureau, in 1926 (Pub. 
Doc. No. 12 (1926), p. 11). 



14 P.D. 12. 

system and responsibility and means it is idle to imagine that there may be expedi- 
tious and effective capture of vicious armed criminals. ^ 

A Recommendation. 

I recommend, therefore, that all heads of all public police agencies comprise a 
Grand Council of Police whereby conferences may be held for deliberation in police 
affairs; that an advisory and executive police council be created, serving under the 
Governor, composed of the Commissioner of Public Safety, the Captain of the 
Metropolitan District Police, and the heads of three city or town police departments, 
to be appointed by the Governor, whereby, under direction of the Governor, such 
Council may effect or prepare plans for the orderly installation or employment of 
radio and teletype services, for the co-ordinating of the several police agencies for 
concerted action against roving criminals, and shall report to the Governor, upon 
his request, for investigation of existence or commission of serious crime anywhere 
in the Commonwealth, and shall perform such other duties as the Legislature may 
prescribe. 

I recommend that all police be removed from politics, and that tenure, after 
qualification, be for life, or automatically under civil service, after a period of police 
service, subject to immediate removal and disqualification from any further public 
service, upon findings by a justice of a court, upon petition of tax-payers, of cor- 
ruption or incompetence or infidelity. 

As I regard lack of fear of capture as much a factor in the disposition to crime as 
any lack of fear of conviction, I deem that a primary objective in any program for 
crime control should be to perfect the law enforcement agencies for the detection 
of crime and apprehension of criminals as much as law enforcement agencies for 
prosecution and correction of crime through revised codes for trial, for conviction, 

' The imperativeness of action is visualized by recitation of heinous crimes, mostly in daylight, many 
yet without clue, occurring in so short a period as the last four months. 
Sept. 4 Holdup in a Scituate restaurant. 

14 $100,000 jewelry robbery in Worcester Railroad Station 
IG Somerville paymaster waylaid. 

23 Hijacking a truck in Cambridge and seizing $6,500 of goods. 
28 South Station mail robbery — $2,600. 
Oct. 2 Brookline Trust Company — $20,000 robbery and flight in busiest thoroughfare after disarm- 
ing policeman responding to alarm. 

3 Somerville Laundry — $600 cash register robbery and holdup of employees. 

4 West Medford milk concern — $1,800 payroll seized at pistol point. 

5 Somerville company's woman cashier attacked, mistaking first lesser payroll trip for larger 

second trip. 
8 Worcester Theatre — $4,500 robbery, after disarming police guard and forcing manager at 

gunpoint to open safe. 
14 Brookline wholesaler — $4,896 holdup in automobile at street curb. 

21 Cambridge company — $1,037 robbery and murder ot owner carrying money from bank to 
company. 
Nov. 4 Maiden chain store collector — $360 holdup. 

5 Roxbury concern — $2,300 safe robbery after holdup of watchman. 
10 North Easton First National Bank — $10,000-$20,000 robbery. 
13 Attempt to crack safe of Bromfield Street, Boston, concern. 
17 $700-$S00 payroll holdup at Boston factory of same concern. 

21 Revere company's plant superintendent held up in automobile conveying $800 from bank. 
Dec. 1 Boston, South End, concern — messenger in automobile robbed of $2,895 payroll. 

4 Quincy Trust Company, WoUaston Branch — $20,000 robbery. 
13 Turners F.alls, Crocker National Bank —$25,000 robbery. 

22 Roxbury clothing concern's treasurer robbed of $13,518 payroll. 
Jan. 2 Lynn Theatre safe robbery and murder. 



P.D. 12. 15 

for confinement and for punishment, the proposals for which in the laudable report 
of the Crime Commission, are too voluminous to permit detailed comment. 

In the last analysis, the morals of a community will be no greater, no stronger 
than the character of the individuals composing it. The great pillars of human 
happiness, "the firmest props of the duties of men and citizens", must ever be, as 
was said by Washington — religion and morahty. 

II. Administration of Laws for Civil Business. 

Not only by reason of the volume of the civil legal matters of the Commonwealth 
and all its officers, departments and divisions, which is increasing annually and 
which exacts the attention of the legal staff, whose number, compensation and facih- 
ties conform to legislative will, but by reason of the maintenance of the offices of 
District Attorneys and their assistants, for prosecutions, and of consequent les- 
sened legislative provision for personal conduct and super\'ision by the Attorney 
General of all criminal matters, the services rendered by the department may be 
characterized as of the nature of those rendered by a Solicitor General rather than 
as services in criminal matters, such as are assignable to the sole attention of an 
Attorney General in some other jurisdictions. 

Litigation. 

1. Cases Decided During the Year. 
a. In the Federal Courts. 

United States Supreme Court. 

United States Circuit Court of Appeals. 

United States District Court. 

There was one case in the United States Supreme Court. ^ There were two cases 
in the United States Circuit Court of Appeals, ' and one case in the United States 
District Court. ^ 

' Snyder v. Commonwealth of Massachusetts. Appeal of Herman Snyder from decision of the Supreme 
.ludicial Court (Mass. Adv. Sh. (1933) 809; 185 N. E. 376), afBrming conviction for first degree murder 
returned in Superior Court for County of Middlesex, and holding that a defendant has no constitutional 
right to accompany a jury on a view; that the determination as to whether or not the defendant should so 
accompany the jury in person rests within the sound discretion of the presiding justice. 

2 Commonwealth of Massachusetts v. Meehan, Trustee in Bankruptcy, (Nov. 1933), which overruled the 
United States District Court and held that the Commonwealth is entitled to prove against a bankrupt 
corporation an excise tax measured by the business done for the period preceding the bankruptcy, although 
the return was not due and the tax was not assessable until a date subsequent to the bankruptcy. 

Crawford v. Hale, 65 Fed. (2d) 739. Petition for certiorari denied. 

' Poresky v. Ryan et at. (54 Sup. Ct. Rep. 3). United States S\ipreme Court dismissed appeal asking 
mandamus to the judge of the United States District Court to call to his assistance two other judges to 
hear application for injunction against the Governor, the Attorney General and the Registrar of Motor 
Vehicles in enforcement of the motor vehicle compulsory liability insurance (G. L. (Ter. Ed.) c. 90) as 
deprivation of constitutional right to use of roads, after the judges had, on their motion, dismissed the 
Governor and the Attorney General as improperly joined parties and dismissed the bill against the Regis- 
trar for reasons. 



16 P.D. 12. 

b. In the State Courts. 

Supreme Judicial Court. 

Six cases invoked decision of the full court. In all, the Commonwealth was sus- 
tained. Th^j relate to a variety of topics, principally taxation. ^ 

2. Cases Pending November 30, 1933. 
a. In the Federal Courts. 
United States Supreme Court. 
There is one case now pending.^ 

United States Court of Claims. 

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

' Taxation. 

Harvard Trust Company v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1933) 1899. 
That the statutes of Vermont did not establish a situs bo as to exempt a trustee resident in Massachu- 
setts, but appointed in Vermont, from payment of a tax due upon income accumulated for unascertained 
persons. 

Commissioner of Banks v. Highland Trust Company, Mass. Adv. Sh. (1933) 965. That taxes due th« 
Commonwealth from a trust company in liquidation are not preferred claims. 
Civil Service. 

City of Haverhill v. Commissioners of Civil Service, Mass. Adv. Sh. (1933) 1341. That the appointment 
of the Director of Hospitalization was subject to ci\'il service laws. 
Other Matters. 

Sampson et als. v. Treasurer and Receiver General (3 cases), Mass. Adv. Sh. (1933) 361. Dismissing peti- 
tions for mandamus against the Treasurer and Receiver-General and certiorari against the Metropolitan 
District Commission, arising out of assessments by the Treasurer and Receiver-General against the town 
of Weymouth resulting from its admission into the South Metropolitan Sewerage District. 

Christian et als. v. Secretary of the Commonwealth, Mass. Adv. Sh. (1933) 969. Dismissing petition for 
mandamus to require Secretary to issue to the petitioners certain blanks to be used by them in obtaining 
signatures to a referendum petition on St. 1933, c. 76, entitled "An Act abolishing the division of smoke 
inspection in the Department of Public Utilities and relative to the abatement of smoke in the city of 
Boston and vicinity." 

Harding v. Commonwealth, Mass. Adv. Sh. (1933) 1259. Dismissing appeal from affirmation by a 
single justice, on a petition for a writ of error, of the judgment of the Superior Court in general imposition, 
collectively, of not more than eight nor less than five years in State Prison, on a conviction, on two out 
of three counts for larceny, and on three further counts for receiving stolen goods, where, in view of the 
fact that the record disclosed no restitution and disclosed previous convictions for similar crimes, it was 
wrongly contended that G. L. (Ter. Ed.) c. 266, § 60, permitted a five-year maximum only, and that § 61 
exempted from State prison on a first conviction with restitution. 
Single Ju.Hice. 

Hartshorn v. Board of Optometry. Decision to the effect that misrepresentations in advertising by regis- 
tered optometrists constitute fraud and deceit in practice and may be the basis for suspension or revoca- 
tion of license. 

Attorney General v. Selectmen of Williamslown (to effect payment of soldiers' relief to a veteran). After 
auditor's hearings and hearings before two justices of the Supreme Judicial Court, power to enable the 
Attorney General to secure payment of soldiers' relief was effected by passage of St. 1933, c. 323, amend- 
ing G. L. c. 115, § 18. 

Defence of judiciarj' on writs of error (8). 

Successful defence of institutions on petitions for release on habeas corpus (16). 
Superior Court. 

Among many dispositions, by special authorization of St. 1933, c. 331, was the case of Treasurer and 
Receiver General v. County of Middlesex, upon payment of $30,000 (40 per cent ol claims) after approval 
of certain officials, in three suits for recovery of support of Middlesex County patients at Rutland State 
Sanatorium. 

= Downey and Gallegher v. Hale, 67 Fed. (2d) 208. Petition for certiorari pending. 

» Commonwealth of Massachusetts v. United States. Whether United States has right to impose excises 
in connection with the manufacture of articles purchased by a State or subdivision thereof. 



P.D. 12. 17 

b. In the State Courts. 

Supreme Judicial Court. 

A few cases relating to different matters await decision. ^ 

c. In the Superior, Probate, Municipal and District Courts. 
The cases were of the usual type.^ 

III. Statutory Services. 

Of the great number of varying services, required by many statutes, which com- 
prise the routine of the department, a few only are here noted. 

1. Small Claims. 

Under the act^ enabling settlement by the Attorney General of certain claimS' 
upon finding of damages under $1,000, 81 claims were filed, and 42 were approved, 
with a total award of $4,760.31. Of the 42, 29 came from accidents with State- 
owned vehicles; 5 from defects in State-owned property; and 8 from miscellaneous 
causes. The appropriation for the purpose is but $5,000. 

A somewhat similar question arises in connection with the processing tax now imposed by the United 

States. The burden of this tax is reflected in the price of the goods, and the Commonwealth, so far as it 

purchases articles subject to the tax, in fact bears the burden. Protest to imposition of this tax, upon 

goods which the Commonwealth must purchase for its institutions, has been asserted by this department. 

' Taxation. 

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

Sayles v. Tax Commissioner. Whether a refund under a covenant in a corporate bond to reimburse the 
holder for income taxes paid is taxable as "interest" under the Massachusetts income tax statute. 

Newton Building Company v. Tax Commissioner. Whether a leasehold interest held by a domestic 
corporation in foreign real estate is deductible as "real estate" in determining the corporate excess under 
the Massachusetts corporation excise tax statute. 

Brady v. Tax Commissioner. Whether petitioner is entitled to a refund of taxes paid on gasoline alleged 
to have been used otherwise than upon the highways of the CommoDwealth. 
The Billboard Cases. 

These are 15 cases by bills in equity, brought in the Supreme Judicial Court by 23 persons and corpo- 
rations engaged in the outdoor advertising industry, 13 cases are known as "The Commonwealth Case" 
(General Outdoor .Advertising Co. Inc. et ale. v. Department of Public Works, Division of Highways), "The 
Concord Case" (General Outdoor Advertising Co. Inc. et als. v. Samuel Hoar el als.) and "The Chevrolet 
Sign Case" (Charles I. Brink v. Department of Public Works, Division of Highways); they were referred 
to a master, who filed original and supplemental reports, to which the complainants filed voluminous ob- 
jections and moved to recommit; May 22, 1933, single justice of the Supreme Judicial Court, by inter- 
locutory decree, denied motion; May 24, Commonwealth moved confirmation of master's reports and for 
entry of final decrees; May 25, complainants appealed to the full court from decree denying their motion; 
June 23, without decision upon Commonwealth's motion or complainants' appeal, cases were reserved by 
another justice for full court; very extensive briefs had to be prepared; cases were argued before the full 
court by special assignment for three days (November 20 to 22, inclusive), and await decision. 
Other Matters. 

Taunton Grade Crossing Abolition Case. A petition of an acceptance corporation to intervene as a 
party was denied in the Superior Court and the case, reported to the full court, awaits early argument. 

2 These comprise litigations in the Superior Court; 58 petitions in equity for enforcement of claims of liens 
against State contracts; proceedings in special commissions; alterations of bridges in Pittsfield, Bernard- 
ston, Uxbridge, Hinsdale, Rowley, Oxford, Wellesley and Chelmsford; defence of the Commonwealth in 
land damage suits (increasingly large number filed by reason of largo number of building projects recently 
undertaken; entry at rate of 20 to 30 in some months to 50 in others; total of approximately 577 suits 
pending; 103 cases settled and 34 cases tried and disposed of; trial may average two or three weeks and 
so attention to these cases is constant) ; defence of Commissioner of Banks. 

3 St. 1924, c. 395. 



18 P.D. 12. 

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

Under the statute ^ providing for defence of State employees when sued for per- 
sonal 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 numerous 
actions. 

3. Public Charitable Trusts. ^ 

Although there have been the customary occasions for recourse to cy-pres, no case 
of singular importance has arisen and the amounts involved have not been large. 

4. Public Administrators. 

Public administrators ^ paid into the treasury of the Commonwealth the sum of 
$32,821.92 as escheats in estates to which heirs or next of kin could not be found. 
There are now 54 active public administrators, and they have held relatively very 
few of these estates for more than a year, and then for valid reasons. 

5. Services Required by the Legislature.* 

These comprise membership on various commissions and required considerable 
attention. 

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. ^ 

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

7. Applications for Renditions; Petitions for Writs of Error. 

There were 147 requests; 40 by other States (2 refused); 64 by Massachusetts, 
of which 43 were for persons charged with non-support and desertion (2 refused). 

There were 8' petitions for writs of error, all of which were successfully defended. 

There were several habeas corpus cases; two reached the United States Supreme 
Court. i» 

» G. L. c. 12, § 3, amended by St. 1931, c. 458, § 1. effective Sept. 10, 1931. 

»G. L. c. 12, §8. 

•49 public administrators report estates in process of settlement; 3 report no estates outstanding; 
actual cash on hand of $280,974.47 in 208 separate estates. 

*To pass upon municipal emergencies and approve loans (G. L. (Ter. Ed.) c. 44, § 8 (9)). 

To pass upon and approve renewal of certain temporary revenue loans by cities and towns (St. 1932, 
C. 303; St. 1933, c. 3). 

To pass upon emergency appropriations by the city of Boston (St. 1933, c. 159). 

To investigate as to State assistance to veterans in acquiring farms and homes (Res. 1933, c. 7). 

To investigate the advisability of licensing contractors and builders and relative to certain matters re- 
lating to contracts for and the employment of persons on public works (Res. 1933, c. 33). 

To investigate certain questions relative to granite and foundry industries and the problem of industrial 
disease generally (Res. 1933, c. 43). 

Member of Advisory Commission for Mashpee (St. 1932, c. 223). 

Member of Milk Regulation Board (St. 1932, c. 305). 

Member of board of appeal on milk and cream dealers' licenses (St. 1933, c. 338). 

Delegate to convention for nomination of persons for election as delegates to act upon the Eighteenth 
Amendment to the United States Constitution (St. 1933, c. 132). 
» 22 closed, 33 pending. 

• Examined as to form 29 leases. 

'375 contracts — 194 related to food supplied to various State institutions. 

* 1,060 deeds have been examined, 828 for the Department of Public Works for highway purposes, 38 
for the Department of Conservation for forestry purposes. 

•One of these went to the full court (.Commonwealth v. Harding, Mass. Adv. Sh. (1933) 1259). 
^* Crawford v. Hale, writ of certiorari denied; and Downey and Gallegher v. Hale, still pending. 



P.D. 12. 19 

IV. Observations. 

In the range of such civil and criminal matters as are by statute under the atten- 
tion of the Attorney General, inequities have been observed which, through opera- 
tion of law or of social system, I deem inimical to the people in the enjoyment of 
equality in their right to hve, to earn, to possess and to pursue happiness, suffi- 
ciently and securely, under liberty and social justice, some of which are mentioned 
for consideration of and alleviation by the General Court. 

1. To establish the equity of the people against certain privileges of gamblers 
and illicit traffickers. 

a. That money seized in gambling raids and lotteries be forfeited to the State. ^ 

There appears to be no legal authority ^ for disposition of money seized by police in 
gambling raids, except its return to a claimant, for the reason that the statute ' relat- 
ing to forfeiture proceedings authorizes destruction of articles in the event there is no 
claimant, and that, as money cannot be lawfully destroyed, there is no alternative ex- 
cept return to the claimant, though he may be adjudged guilty of gaming. It is an 
anomaly that a gaming house proprietor, though there be destruction of his gambling 
implements, should smugly retain his booty. The people should not be powerless to 
make a gambler forfeit his illicit gains. 

b. That the penalty for violation of gaming laws be increased. 

A fine of fifty dollars cannot be expected to deter gambling enterprises, wheeling 
thousands of dollars.* 

c. That the provisions of law, designating the officials authorized to issue search 
warrants in various cases, be made uniform, * so that there may be clarity as to the power 
of justices of the peace with authority to issue criminal warrants and to issue search 
warrants for gambling raids. 

The wording of the laws authorizing the issuance of search warrants for articles used 
in forbidden acts is as variant as is the number of statutes relating to such acts — for 
example, hquor, gambhng, equipment, fighting birds, fish and game and narcotics. 
Lack of uniformity occasions doubt as to what officials have authority to issue war- 
rants. Recently it was disputed that a justice of the peace, authorized to issue criminal 
process, had authority to issue warrants for gambling and liquor. St. 1933, c. 376 (§ 42 
of new G. L. c. 138), specifically provided power for hquor raids. 

2. To establish the equity of the people against certain privileges of dealers in 
securities. 

a. That banks and bank officials be prohibited from engaging in the business of 
selling securities. 

Last year I recommended that the business of banking and the business of selling 
securities or otherwise dealing in securities be completely divorced one from the other. 

1 This may be effected by amendment of G. L. (Ter. Ed.) c. 276, §§ 1, 7. 

' Attorney General v. Justices of the Municipal Court of the City of Boston, 104 Mass. 456. 

«G. L. (Ter. Ed.) c. 276, §§ 1, 7; money seized in raids is held by the officer for evidence, and after 
determination of the case, for which it is used as evidence, it must be returned to the claimant or disposed 
of, under the provisions for unclaimed evidence, which, so far as they apply to the State Police, are con- 
tained in G. L. (Ter. Ed.) c. 147, § 6A to § 6D, and so far as they apply to local police, in G. L. (Ter. Ed.) 
0. 135, § 7 to § 11. 

' Some $7,600 seized in the Casa Madrid raid. There must be pro^^3ion for forfeit of such sums to the 
treasury of the people. This may be accomplished by amending G. L. (Ter. Ed.) c. 271, § 23, and G. L. 
C.276, § 1, cl. 11, and § 5. 

•This may be accomplished by changing G. L. c. 276, $ 1, and G. L. c. 271, § 23. 



20 P.D. 12. 

This has been accompHshed in relation to national banks by the Banking Act of 1933. 
I recommend that similar provisions be passed relating to banks under the jurisdiction 
of this Commonwealth. 

b. That tipster sheets and other ■publications advising relative to the investment in or 
purchase of securities be brought under the jurisdiction of the Director of Securities. 

I have in past years advocated that tipster sheets be regulated. Many fraudulent 
stock promotions are conducted through financial services and publications or by tele- 
phone or telegraph campaigns inaugurated from this State. At the present time only 
a registered broker or salesman may sell securities. This provision should be extended 
to every one who is engaged in the business of advising relative to investment in or 
purchase of securities, and I so recommend. 

3. To establish equity of the people against certain privileges of collection 
agencies. 

o. That collection agencies be regulated and licensed. 

Many collection agencies have resorted to unscrupulous and improper practices in 
the conduct of their business. For the protection of agencies, which conduct their 
business in a legal and proper manner, as well as for the protection of debtors and those 
who entrust the collection of moneys to collection agencies, I again recommend that 
every person engaged in the business of collecting moneys for others be required to be 
licensed. 

b. That the use of documents designed to imitate court process be prohibited. 

Debtors and persons not subject to any liabilities have been put in fear through use 
of documents, demanding payment or satisfactions, which are designed to create the 
impression that such documents are issued pursuant to the authority of some court or 
other tribunal of this Commonwealth, whereas, in fact, they carry no such authority. 
This practice should be prohibited, and I again so recommend. 

4. To establish the equity of the people in their earnings against certain pri\'i- 
leges of their attachers. 

a. That the lairs relating to attachment of wages be reformed to enable retention by 
workers of sufficient wages to maintain existence. 

Under the present law, wages for personal services are exempt in the amount of 
twenty dollars, or in the amount of ten dollars if the claim against the wage earner is 
one for necessaries. 

I recommend that this exemption be raised to twenty dollars, out of the wages for 
each calendar week. 

I also recommend that in every trustee writ, the employer be directed to pay over to 
the employee such exempted amount when due. 

I also recommend a penalty against persons issuing writs for the attachment of wages 
in cases where debtors have no wages not exempt from attachment in the hands of the 
trustee. In too many cases attachments of wages are made when the creditor well 
knows that there are no wages in the hands of the employer not exempt from attach- 
ment, and purposes purely to harass the emploj'ee by placing him in danger of dis- 
charge by his employer because of the annoyance. 

5. To enable cities and towns to designate qualification of persons for plumbing 
permits. 

That cities and towns be authorized to pass ordinances or by-laws limiting the issu- 
ance of plumbing licenses to master plumbers. 



P.D. 12. 21 

G. L. (Ter. Ed.) c. 142, § 13, does not appear to enable cities and towns to pass ordi- 
nances and by-laws providing that plumbing permits be issued to master plumbers 
only. 

I recommend such legislation so to permit and to validate any and all ordinances and 
by-laws previously passed to this effect. 

6. To enable prosecution of forgeries upon nonaination papers. 

That the persons procuring signatures upon nomination papers be required to certify 
under oath that the signatures procured are genuine to the best of their knowledge and 

belief. 

Similarity in handwriting on nomination papers has created suspicion that the sig- 
natures thereon have not been authentic, and investigation and prosecution have been 
disenabled, through lack of means of identification of persons circularizing or filing such 
papers. 

I recommend that some measure of responsibility for the genuineness of signatures 
on nomination papers be placed upon the persons procuring such signatures, by requir- 
ing signature to each paper and declaration under oath that the signatures are genuine 
to the best of his knowledge and belief. 

7. To establish the equity of the people against risks of loss of saWngs in banks. 
That a State system of deposit insurance be instituted by the Mutual Savings Central 

Fund, Inc., for the protection of depositors in savings ba?iks of the Commonwealth. 

In August 1 I proposed a system of savings deposit insurance for the mutual savings 
banks of Massachusetts, and separation of such banks from membership in the Federal 
Reserve System and from participation in the Federal Deposit Insurance Fund, and I 
also sponsored this proposal before the Special Commission on Banking. I now so 
recommend. My reasons, among others, in support thereof are as follows: 

1. The savings banks of Massachusetts have had a remarkable record. The combined 
losses of all savings banks, closed between 1843 and 1931, have been less than two and 
a half millions of dollars. During the recent banking debacle only two of our mutual 
savings banks fell into the possession of the Commissioner of Banks. Both have re- 
organized and reopened and the losses to depositors minimized. The deposits of this 
proven sound savings bank system should not be subjected to the burden of guaran- 
teeing deposits of banks throughout the length and breadth of the country, which the 
crisis proved fundamentally less sound. 

2. The savings banks of Massachusetts are mutual institutions. No profits are 
taken from them by stockholders. All profits are utilized for the payment of interest 
to depositors or for the establishment of reserves for possible future losses. This mutual 
system should not be associated, through a joint deposit insurance fund, with com- 
mercial banks primarily operated for the profit of stockholders. 

3. The Federal Deposit Insurance Fund will ultimately insure deposits of large 
amounts. The amount which any one person may have on deposit in any one mutual 
savings bank is limited. No savings bank should be part of any deposit insurance sys- 
tem to help insure deposits in another bank of an amount greater than the savings bank 
itself is authorized to accept. 

4. Membership in the Federal Deposit Insurance System necessitates membership 
in the Federal Reserve System. I think that the mutual savings banks of Massachu- 
setts do not need the facilities offered to members of the Federal Reserve System; that 
expenditures for such membership are needless, and are, consequently, an unnecessary 
burden on the depositors. 

' Before the National Convention of the Attorneys General at Grand Rapids, Aug. 29, 1933. 



22 P.D. 12. 

5. The Mutual Savings Central Fund, Inc., may be adequately equipped to effect 
such a State-wide deposit convenience system for the mutual savings banks of Massa- 
chusetts, which would incidentally enable them more easily to compete with banks 
which advertise insurance to depositors through the Federal Deposit Insurance System. 

8. To enable institution by the Attorney General of investigations for prosecu- 
tions of violations of criminal laws and institution of proceedings for violation 
of laws against combinations, agreements and unlawful practices in restraint of 
trade, or for the suppressing of competition or the undue enhancement of the price 
of articles or commodities in common use. 

The power of the Attorney General is specifically limited in its exercise to the extent 
of sums appropriated by the General Court. In all investigations of violations of crim- 
inal laws, the Attorney General is confined, by reason of limited funds, to such exercise 
as the excellent detective division of the Department of PubUc Safety may be at liberty 
to render, but the Attorney General should be enabled, in matters requiring immediate 
action or extended inquiry, or employment of persons having specialized knowledge, to 
proceed expeditiously. That the public interest may be effectively safeguarded against 
such criminal operations and unlawful practices, I recommend and urge adequate 
financial provisions for securing of data and evidence to support the cause of the people ; 
power without means is empty. 

9. To enable relief of home owners with mortgages subject to foreclosure. 

It must be realized that co-operative banks are carr5'ing $32,000,000 and the savings 
banks $81,000,000 in their foreclosure accounts. All the former, of course, affects 
homes; of the latter, about 70 per cent. I deem that the maintenance of the home-own- 
ing or home-acquiring class — victims of economic vicissitudes — is more calculated 
to the security of the State than the immediate enforcement of mercenary-motivated 
agreements, and I believe, from the tragic index recited, that stays are warranted. 

10. To enable preservation of husbandry, farming and dairying native to Massa- 
chusetts. 

As the farming industry is second largest in the Commonwealth, its size, number of 
persons engaged, investment, and the fact that it is naturally indigenous to the State 
argue defence against invasion and distribution of products disrupting and destroying 
it. The home market, so readily accessible, would also become vassal to distant herds 
and herders immune from our inspection. By nature, tillage of the soil and husbandry 
for the sustenance of mankind have prime claim to protection and encouragement by 
all legislative bodies. 

11. To enable the subsistence and care of workers incapacitated from gaining 
livelihood through diseases contracted in occupations contributive to the common 
wealth of society. 

A system cannot survive, which throws into wastage the toiler, diseased in work con- 
tributive, through actual creation of goods, to the common wealth of society and pros- 
perity of the State. Incapacitj^, incurred in industry in the production of commodities 
necessary for the existence, comfort and commerce of the State, justly may claim 
beneficent measures from society, immune from risks in health-jeopardizing processes 
for the creation of society's common wealth. 

In this era of aspiration for social justice, the charter of all our liberties — the 
Constitution of the United States — is marvellously according, through its in- 



P.D. 12. 23 

herent power of adaptation, the enablement of its attainment. America shall 
evolve the ideal of Liberty and Justice for all. 

" A land of settled government, 
A land of just and old renown 
Where Freedom slowly broadens down 
From precedent to precedent." 

Conclusion. 

A Recommendation. 

I repeat my recommendation that the pro\isions of G. L. (Ter. Ed.) c. 31, be 
extended to Louis H. Freese, chief clerk for forty-three years, and to Harold J. 
Welch, cashier for thirty years, so that there may be continuance to the Common- 
wealth of their conspicuous and rare service. 

An Appreciation. 

To the Assistant Attorneys General, to all others associated in the Department, 
to the District Attorneys and their assistants, to the members of the police, State 
and municipal, I express gratitude for the measure of service this department has 
endeavored to render the people. 

Respectfully submitted, 

JOSEPH E. WARNER, 

Attorney General. 



24 P.D. 12. 

Details of Capital Gases. 

1. Disposition of indictments pending Nov. 30, 1932: 

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, 19.32; 
arraigned Sept. 14, 1932, and pleaded not guilty; trial October, 1932; verdict of 
guilty of murder in the first degree; thereupon sentenced to death by electrocution; 
Sept. 7, 1933, commutation of sentence to life imprisonment. 

Northwestern District (in charge of District Attorney Joseph T. Bartlett). 
Florence M. Williamson. 

Indicted in Hampshire County, October, 1932, for the murder of William L. Wil- 
Hamson, at Northampton, on Oct. 23, 1932; arraigned Oct. 25, 1932, and pleaded 
not guilty; March 6, 1933, entry of nolle prosequi as to so much of said indictment 
as charged murder in the first or second degree; trial March, 1933; verdict of 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, February, 1932, 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; there- 
upon sentenced to State Prison for life; July 7, 1933, entry of nolle prosequi as to 
Blanchette. 

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; thereupon sen- 
tenced to death by electrocution; April 29, 1933, commutation of sentence to im- 
prisonment for life. 

Arthur B. Manchester. 

Indicted in Bristol County, November, 1932, for the murder of Arthur Pelletier and 
Marilla Pelletier; arraigned Dec. 1, 1932, and pleaded not guilty; trial April, 1933; 
verdict of guilty of murder in the first degree; thereupon sentenced to death by 
electrocution; Oct. 6, 1933, commutation of sentence to imprisonment for life. 

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; trial 
March, 1933; verdict of guilty of manslaughter; thereupon sentenced to jail for 
eighteen months. 

2. Indictments found and dispositions since Nov. 30, 1932: 

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

Tony Buffa, alias, Edward Cullen and Joseph Scrow, alias. 

Indicted March, 1933, for the murder of Francis V. Quinn, at Lynn, on Feb. 15, 1933; 

arraigned March 20, 1933. and each pleaded not guilty; trial July. 1933; verdict 

of guilty of murder in the second degree as to each; thereupon sentenced to State 

Prison for life. 



P.D. 12. 25 

Jessie Burnett Costello. 

Indicted March, 1933, for the murder of William J. Costello, at Peabody, on Feb. 17, 
1933; arraigned March 20, 1933, and pleaded not guUty; trial July and August, 
1933; verdict of not guilty. 

William A. Hooper. 
Indicted March, 1933, for the murder of William Lewey, at Nahant, on Jan. 30, 1933; 
arraigned March 20, 1933, and pleaded not guilty; March 24, 1933, retracted former 
plea and pleaded guilty to manslaughter, which was accepted; thereupon sentenced 
to State Prison for not less than six years nor more than seven years. 

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

L. Bishop). 
Bernard Evans. 
Indicted November, 1933, for the murder of William Manning, at Wilmington, on 
Oct. 27, 1933; Nov. 9, 1933, entry of no/Ze prosequi as to so much of said indictment 
as charged murder in the first or second degree; arraigned Nov. 16, 1933, and entry 
of a plea of not guilty to manslaughter was ordered by the court; indictment placed 
on file. 

Michael Fontana. 
Indicted January, 1933, for the murder of Salvatore Mamolo, at Cambridge, on Dec. 
23, 1932; arraigned Jan. 6, 1933, and pleaded not guilty; March 13, 1933, retracted 
former plea and pleaded guilty to manslaughter, which was accepted; thereupon 
sentenced to State Prison for not less than seven years nor more than ten years. 

Robert B. Jonah. 

Indicted January, 1933, for the murder of Charles A. Jonah and Amanda E. Jonah, 
at Newton, on Dec. 15, 1932; arraigned Jan. 19, 1933, and pleaded not guilty; 
Feb. 16, 1933, retracted former plea and pleaded guilty to murder in the second 
degree, which was accepted; thereupon sentenced to State Prison for life. 

Fortunato Scire. 

Indicted July, 1933, for the murder of Charles Bevalacqua, at Woburn, on July 21, 
1933; arraigned Aug. 4, 1933, and pleaded not guilty; Nov. 20, 1933, entry of nolle 
prosequi as to so much of said indictment as charged murder in the first degree. 

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

Indicted in Plymouth County, June, 1933, for the murder of Joseph Silipo, at Hing- 
ham, on May 13, 1933; arraigned June 23, 1933, and pleaded not guilty; June 20, 
1933, entry of nolle prosequi as to so much of said indictment as charged more than 
murder in the second degree. 

Southern District (in charge of District Attorney William C. Crossley). 
Walter Waitkins and Anthony Ladish. 
Indicted in Bristol County, February, 1933, for the murder of Charles Hibbert; ar- 
raigned Feb. 21, 1933, and each pleaded not guilty; trial April, 1933; verdict of 
guilty of murder in the second degree as to each; thereupon sentenced to State 
Prison for life. 

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

Foley). 

John T. O'Donnell, alias, Frank Karlonas, alias, James A. Scully, alias, and John 
J. Burke, alias. 
Indicted April, 1933, for the murder of Charles Solomon, on Jan. 24, 1933; O'Donnell, 
Karlonas and Burke arraigned May 9, 1933, and Scully on Oct. 25, 1933, and each 



26 P.D. 12. 

pleaded not guilty; trial June, 1933, as to O'Donnell, Karlonas and Burke; ver- 
dict of not guilty; trial December, 1933, as to Scully; verdict of not guilty. 

3. Pending indictments and status: 

Eastern District (in charge of District Attorney Hugh A. Cregg). 
Clifton W. Cunningham. 

Indicted September, 1933, for the murder of Shirley Anne Cunningham, at Beverly, 
on Aug. 26, 1933; committed to the Bridgewater State Hospital for observation 
Sept. 18, 1933. 

Middle District (in charge of District Attorney Edwin G. Norman). 
Achilea Legor, alias. 

Indicted December, 1932, for the murder of Arthimisi Legor, at Worcester, on Dec. 2, 
1932; arraigned Dec. 21, 1932, and pleaded not guilty; Feb. 15, 1933, adjudged 
insane and committed to the Bridgewater State Hospital. 

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

L. Bishop). 

James Deshler and Marshall J. Bowles. 

Indicted November, 1933, for the murder of Adolph Sommers, at Cambridge, on 
Oct. 20, 1933; Deshler arraigned Nov. 10, 1933, and Bowles on Nov. 13. 1933, and 
each pleaded not guilty. 

Nellie Dyczheski. 
Indicted June, 1933, for the murder of Eugene, Chester and Irene Dyczheski, at 
Framingham, on May 25, 1933; July 17, 1933, committed to Westborough State 
Hospital. 

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; 
Snyder and Donnellon each pleaded not guilty, and entry of a plea of not guilty 
was ordered by the court as to Garrick; trial May, 1932, as to Snyder and Don- 
nellon; verdict of guilty of murder in the first degree as to each; appeal dismissed 
by Supreme Judicial Court of Massachusetts [Mass. Adv. Sh. (1933) 809]; petition 
for certiorari pending before Supreme Court of the United States; indictment as 
to Garrick pending. 

Annie Wita. 

Indicted September, 1933, for the murder of Anthony Wita, at Cambridge, on Sept. 10, 
1933; arraigned Sept. 15, 1933, and pleaded not guilty; trial October, 1933; ver- 
dict guilty of murder in the second degree ; thereupon sentenced to the Reformatory 
for Women for life; exceptions, claim of appeal and assignment of errors pending. 

Northwestern District (in charge of District Attorney Joseph T. Bartlett). 
Harry Clay Bull. 
Indicted in Franklin County, August, 1933, for the murder of Albert C. Jordan, at 
Greenfield, on Aug. 7, 1933; arraigned Aug. 21, 1933, and pleaded not guilty; trial 
October, 1933; verdict of guilty of murder in the first degree; thereupon sentenced 
to death by electrocution within the week beginning Feb. 4, 1934. 

Ruth E. Compton. 
Indicted in Franklin County, August, 1933, for the murder of Mabel A. Grogan, at 
Warwick, on July 27, 1933; committed to a hospital for the insane for observation. 

Edward T. Stanisiewski. 
Indicted in Hampshire County, October, 1933, for the murder of Timothy L. Diggine, 
at Amherst, on Oct. 11, 1933; arraigned Oct. 17, 1933, and pleaded not guilty. 



P.D. 12. 27 

Southeastern District (in charge of District Attorney Edmund R. Dewing). 
John Bowen and John Daley. 
Indicted in Norfolk County, April, 1933, for the murder of Harry Riddell, at Quincy, 
on Nov. 1, 1932; arraigned April 26, 1933, and each pleaded not guilty; Bowen 
later retracted former plea and pleaded guilty to murder in the second degree; 
thereupon sentenced to State Prison for Hfe; May, 1933, trial of Daley; disagree- 
ment of the jury. 

Louise E. Hoist. 
Indicted in Norfolk County, September, 1933, for the murder of Albert S. Hoist, at 
Medway, on April 25, 1933; Nov. 28, 1933, committed to the Foxborough State 
Hospital for observation. 

James H. Kelley. 

Indicted in Norfolk County, December, 1932, for the murder of Francis W. Finch, at 
Randolph, on Sept. 15, 1932; Dec. 14, 19.32, committed to Bridgewater State Hos- 
pital for observation. 

Ahmed Osman and Alley Osman, alias. 
Indicted in Norfolk County, April, 1933, for the murder of Nellie Keras, at Norwood, 
on Dec. 25, 1932; arraigned April 24, 1933, and each pleaded not guilty; trial May, 
1933; verdict of not guilty as to Alley Osman, and verdict of guilty of murder in 
the first degree as to Ahmed Osman; motion for new trial denied June 1, 1933; 
June 23, 1933, assignment of errors filed; Nov. 29, 1933, rescript "Judgment on the 
verdict." 

Southern District (in charge of District Attorney William C. Crossley). 
Frank Dombzalski and Louis Gwizdoski. 

Indicted in Bristol County, November, 1932, for the murder of John Roselowitz; 
arraigned Dec. 1, 1932, and each pleaded not guilty; trial April, 1933, as to Gwiz- 
doski; verdict of guilty of murder in the second degree; motion for new trial and 
assignment of errors pending; July 7, 1933, entry of nolle prosequi as to Domb- 
zalski. 

Sufiolk District (in charge of District Attorney William J. Foley). 
Nicholas Porazzo, alias. 
Indicted April, 1933, for the murder of Michael Richardi, on Jan. 1, 1933; arraigned 
May 4, 1933, and pleaded not guilty. 



28 P.D. 12. 

OPINIONS. 



Teachers — Tenure — City of Pittsfield. 

St. 1932, c. 280, renders ineffective the provisions of G. L. c. 71, § 41, 
and part of those in section 42 with relation to the pubKc school- 
teachers of Pittsfield. 

Dec. 2, 1932. 

Dr. Payson Smith, Commissioner of Education. 

Dear Sir : — You have asked my opinion as to the effect produced 
upon the tenure of office of teachers duly appointed in the public schools 
of the city of Pittsfield by the terms of St. 1932, c. 280. 

Prior to the enactment of said St. 1932, c. 280, which embodies a char- 
ter for the city of Pittsfield, the tenure of teachers in said city was governed 
by the provisions of G. L., c. 71, §§ 41 and 42, which read as follows: — 

''Section 41. Every school committee, except in Boston, in electing a 
teacher or superintendent, who has served in its public schools for the 
three previous consecutive school years, other than a union or district 
superintendent, shall employ him to serve at its discretion; but any 
school committee may elect a teacher who has served in its schools for 
not less than one school year to serve at such discretion. 

Section 42. The school committee may dismiss any teacher, but in 
every town except Boston no teacher or superintendent, other than a 
union or district superintendent, shall be dismissed unless by a two thirds 
vote of the whole committee. In every such town a teacher or superin- 
tendent employed at discretion under the preceding section shall not be 
dismissed unless at least thirty days prior to the meeting, exclusive of 
customary vacation periods, at which the vote is to be taken, he shall 
have been notified of such intended vote, nor unless, if he so requests, 
he shall have been given a statement by the committee of the reasons 
for which his dismissal is proposed; nor unless, in the case of a teacher, 
the superintendent shall have given the committee his recommendations 
thereon. Neither this nor the preceding section shall affect the right of 
a committee to suspend a teacher or superintendent for unbecoming con- 
duct, or to dismiss a teacher whenever an actual decrease in the number 
of pupils in the schools of the town renders such action advisable. No 
teacher or superintendent who has been lawfully dismissed shall receive 
compensation for services rendered thereafter, or for any period of lawful 
suspension followed by dismissal." 

St. 1932, c. 280, § 37, however, reads, as far as applicable, referring to 
the school committee : — 

"Said committee shall annually appoint, but not of their own number, 
a superintendent of schools and such other subordinate officers, teachers 
and assistants, including janitors of school buildings as it may deem neces- 
sary for the proper discharge of its duties. ..." 

Said St. 1932, c. 280, § 37, provides in effect that teachers shall be 
appointed only for terms not in excess of one year. This provision is 
entirely inconsistent with the terms of G. L., c. 71, relative to an election 
of a teacher "to serve at its" (the school committee's) "discretion," as 
the quoted words are used in said chapter 71, sections 41 and 42. As used 
in said sections 41 and 42 the phrases "serve at its discretion," "to serve 



P.D. 12. 29 

at such discretion" and "employed at discretion" connote emploj-ment 
not for a period with a fixed and definite maximum length, but for an 
indefinite period. Hence, the provisions of said G. L., c. 71, §§41 and 42, 
with relation to the tenure of teachers who are chosen to serve at dis- 
cretion, have no application to teachers appointed annually, as those 
functioning under the newly adopted charter of Pittsfield are to be. In 
other words, the terms of said section 41 and at least the second sentence 
of said section 42, are rendered ineffective as to the teachers of Pittsfield 
by the passage and adoption of said St. 1932, c. 280, when it becomes 
fully effective as described in its section 46. 

Teachers have no such vested interest in the tenure of their ofiices 
that the same may not be altered or destroyed by an act of the Legis- 
lature, so that teachers elected prior to the passage of said chapter 280 
will be in no different case than others after the act becomes effective 
in this respect. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — Life Policy — Lapses. 

Addition to the face amount of a policy provided by a policy may by the 
terms of the policy itself be made unavailable after a lapse for non- 
payment of premium. 

Dec. 2, 1932. 

Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — (1) You have informed me that you have before you for 
approval or disapproval a certain policy form of a domestic life insurance 
company, and that to aid you in the discharge of your duty in this matter 
you desire my opinion upon the following question of law: — 

"May a domestic life insurance company lawfully provide in a policy 
of life insurance that is subject to section 144 of chapter 175 of the General 
Laws that the face amount of the policy shall be increased annually by a 
certain percentage of the premiums previously paid by the insured thereon, 
but that the amount of the paid-up insurance granted under such a policy 
shall not subsequently be increased annually by the addition of a propor- 
tionate part of the amounts by which the original face of the policy would 
have been increased if it had remained in force?" 

You advise me that the particular portion of the policy form, as to the 
propriety of which you are in doubt, reads: — 

" 'If the death of the insured should occur while this policy is in force 
under its original premium paying conditions ... a sum equal to twenty- 
five per cent of previous premiums paid . . . plus interest compounded 
annually at three and one-half per cent on such twenty-five per cent from 
the respective anniversary premium dates hereunder to the end of the 
policy year in which death occurs, shall be payable as an addition to the 
face amount of this policy. If this policy lapses no further additions shall 
be made to the sum insured.' " 

And you state the particular matter connected therewith, which has made 
your decision as to your appropriate action difficult for you, to be: — 

"A question has arisen as to the legality of said Provision B in so far 
as it provides that the amounts by which the face amount of the policy 



30 P.D. 12. 

is to be increased shall not be available after the policy has lapsed for 
non-payment of the premium thereon." 

The holder of a policy of life insurance issued by a domestic life insur- 
ance company is entitled among other benefits by the provisions of G. L. 
(Ter. Ed.), c. 175, § 144, to paid-up insurance "payable at the same time 
and on the same conditions as in the original policy." The mode for deter- 
mining the amount of the paid-up policy is set forth in said section 144 
and I assume, since you do not advise me to the contrary, that the said 
policy form does not differ therefrom in any other particulars than those 
found in the quoted portion of the policy form. There is no statutory 
prohibition of the insertion in the original policy of insurance of a pro- 
vision that such additions to the face amount of the policy, as are set 
forth in the portion of the instant form above quoted, may not be dis- 
continued after a lapse of the policy. 

If such a provision were not contained in the original policy it could 
not be enforced upon the holder of a paid-up policy after a lapse. To do 
so would be to construe the paid-up policy as something other than paid-up 
insurance "payable at the same time and on the same conditions as in 
the original contract." It does not follow, however, that an original 
policy providing for the cessation of such additions to the face of the 
policy as are mentioned in the quoted portion of the form may not be 
made, nor can such provisions of an original policy be taken to be a waiver 
by the insured of any of the provisions of said chapter 175, which waiver 
would be void by virtue of section 22B of said chapter 175, for the right 
to payment under the peculiar conditions contained in the quoted portion 
of the form inures to the assured not by virtue of any statute, but flows 
solely from the contract itself. See Orr v. Prudential Insurance Co., 274 
Mass. 216-217. 

I answer your first question, above set forth, in the affirmative. 

(2) The second question which you have propounded in your com- 
munication does not deal with any matter before you and is purely hypo- 
thetical. I must therefore respectfully decline to answer it. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Division of the Blind — Blind Workmen — Furnishing Medical Attention. 

Dec. 8, 1932. 
Dr. Payson Smith, Commissioner of Educatiori. 

Dear Sir : — You have asked my opinion with relation to blind men 
employed by the Commonwealth through the Division of the Blind, as 
workmen in the workshop maintained by said division, as follows: — 

"I respectfully request your opinion as to whether under the provisions 
of section 23, chapter 69 of the General Laws the Division of the Blind 
may supply the necessary medical attention for any blind workman in 
said shop who may be injured in the course of his employment." 

G. L. (Ter. Ed.), c. 69, § 23, reads as follows: — 

"The director may ameliorate the condition of the blind by devising 
means to facilitate the circulation of books, by promoting visits among 
the aged or helpless blind in their homes, by aiding individual blind per- 
sons with money or other assistance, or by any other method he may 



P.D. 12. 31 

deem expedient; provided, that he shall not undertake the permanent 
support or maintenance of any blind person." 

I am of the opinion that under the terms of said section 23 you have 
authority to supply the necessary medical attention for any blind work- 
man who may be injured in the course of his employment. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Conservation — Fish and Game Warderis — Transfer. 

A fish and game warden may be transferred from one district to another 
with no change in character of duties or in compensation without 
violating G. L., c. 31, § 43. 

Dec. 8, 1932. 

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

Dear Sir : — You have requested my opinion in a letter as follows : — 

"In the Division of Fisheries and Game of this Department, it has been 
customary to transfer fish and game wardens from one district to another 
when the needs of the service required such action. 

Such a transfer does not involve a change in duties or compensation, 
but merely change in the location in which the warden performs his work. 

We have recently had an objection raised on the point that such trans- 
fers within the warden force without the approval of the wardens trans- 
ferred were in violation of section 43 of chapter 31 of the General Laws 
(Ter. Ed.) This section includes the phrase 'or without his consent trans- 
ferred from such office or employment to any other'. 

It is our contention that the transfer of a warden from one district to 
another with no change in duties or compensation is not contrary to the 
provisions of the section above referred to and that the wardens may be 
transferred under such circumstances to any part of the Commonwealth. 

We maintain the same contention in regard to Game Culturists and 
Fish Culturists who work at Game Farms and Fish Hatcheries and believe 
that they also can be transferred from one game farm or fish hatchery to 
another, provided there is no change in duties or compensation. 

I would respectfully request your opinion in regard to these matters." 

In my opinion, your contention as set forth in your letter is correct. 
A transfer such as you describe as merely "from one district to another 
with no change in duties or compensation" does not cause an officer or 
employee of the Commonwealth to be "transferred" from the "office or 
employment" which he holds to another, as the quoted words are used 
in G. L. (Ter. Ed.), c. 31, § 43, which reads: — 

"Except as otherwise provided in this chapter, every person holding 
office or employment in the classified public service of the commonwealth, 
or of any county, city or town thereof, shall hold such office or employ- 
ment and shall not be removed therefrom, lowered in rank or compensa- 
tion or suspended, or without his consent transferred from such office or 
employment to any other, except for just cause, and for reasons speci- 
fically given him in writing within twenty-four hours after such removal, 
suspension, transfer or lowering in rank or compensation. 

If within three days thereafter, the person sought to be removed, sus- 
pended, lowered or transferred shall so request in writing, he shall be 



32 P.D. 12. 

given a public hearing in not less than three nor more than fourteen days 
after the filing of the request, by the officer or board whose action affected 
him as aforesaid, and he shall be allowed to answer the charges preferred 
against him, either personally or by counsel, and shall be notified, in 
writing within three days after the hearing, of the decision of such officer 
or board. In default of such hearing, said person shall forthwith be 
reinstated. A copy of said reasons, notice, answer and decision shall be 
made a matter of pubHc record in the department." 

Upon the facts as you set them forth there is no transfer from the office 
or in the employment which the public servant holds, but a mere change 
in the place where he performs the duties of his office or of his employ- 
ment; and there is no prohibition against such a change made without 
the officer's or employee's consent in the administration of the work of a 
department contained in the said chapter 31, section 43. 

It is obvious that in carrying on the work of a State department trans- 
fer of workers from one locality to another may be necessary, and there 
is nothing in the said chapter 31, section 43, which indicates a legislative 
intention to forbid such practice under the conditions set forth in your 
letter. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Director of Standards — Treasury — License Fees. 

Out of each fee for a hawker's and pedler's license one dollar should be 
paid into the treasury of the Commonwealth and the balance may 
be retained by the Director of Standards until the time for payment 
thereof to the appropriate city or town. 

Dec. 19, 1932. 

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

Dear Sir: — Your Commission has requested my opinion as to whether 
the Director of Standards is required to pay into the treasury of the Com- 
monwealth money received by him for certain licenses fees under G. L., 
c. 101, § 22. 

This statute provides for the granting by the Director of hawkers' and 
pedlers' licenses and for the payment to the Director of fees therefor 
scheduled according to the population of the towns in which such ficenses 
are to be exercised. The statute states: — 

"The director shall retain one dollar for every city and town named 
in each of the above described licenses, and shall pay over to the treasurers 
of the respective cities and towns at least semi-annually the balance of 
said fees so received." 

Article 125 of the Rearrangement of the Constitution is as follows: — 

"All money received on account of the commonwealth from any source 
whatsoever shall be paid into the treasury thereof. 

No moneys shall be issued out of the treasury of this commonwealth, 
and disposed of (except such sums as may be appropriated for the redemp- 
tion of bills of credit or treasurer's notes, or for the payment of interest 
arising thereon) but by warrant under the hand of the governor for the 
time being, with the advice and consent of the council, for the necessary 
defence and support of the commonwealth; and for the protection and 



P.D. 12. 33 

preservation of the inhabitants thereof, agreeably to the acts and resolves 
of the general court." 

In my opinion, the one dollar portion to be retained out of the fees is 
"received on account of the commonwealth," and such sums should, in 
accordance with the provisions of the Constitution above referred to, be 
paid into the Treasury. The balance of the fees, however, is in a different 
class. This balance is collected by the Director for the benefit and account 
of the cities and towns. The statute imposes upon the Director the duty 
of paying it over to the cities and towns, and the times and amounts of 
such payments, subject to the qualification that payments must be at 
least semi-annually, are for the Director to determine. It would seem, 
therefore, that the Director was entitled to keep the money in his control. 
In my opinion, the sums payable to the cities and towns are not "received 
on account of the commonwealth," within the meaning of the Constitution. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

County Commissioners — Sheriff — House of Correction. 

County commissioners may approve bills for the equipment with furniture 
of quarters for a sheriff as keeper of a house of correction. 

Dec. 19, 1932. 

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

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

"In connection with the auditing of county accounts, the Director of 
Accounts would like to be advised as to the extent to which he may ap- 
prove bills on account of the purchase of furniture and household equip- 
ment for the quarters occupied by the sheriff as master and keeper of the 
jail and house of correction. 

This statute states that the sheriff as master and keeper of the jail and 
house of correction shall be entitled to rent. The question has arisen as 
to whether the term ' rent ' is broad enough to permit the county commis- 
sioners to furnish and equip, by the purchase of furniture and other house- 
hold equipment, the quarters occupied by the sheriff as master and keeper 
of the jail and house of correction." 

G. L. (Ter. Ed.), c. 37, § 17, provides: — 

"The salaries of sheriffs shall be paid by their respective counties and 
shall, except as hereinafter provided, be in full compensation for all services 
rendered both as sheriff and as master or keeper of the jail or house of cor- 
rection. If a sheriff elects to act as master or keeper of the jail or house of 
correction and resides thereat, he shall be entitled to rent, heat and fight, 
and such subsistence as he may desire out of the regular subsistence rations 
purchased for prisoners. The sheriff of Dukes and of Nantucket county 
may, in addition to his salary, retain to his own use the fees received by 
him for service of process." 

G. L. (Ter. Ed.), c. 126, § 8, provides: — 

"The county commissioners in each county, except Dukes, shall at the 
expense of the county provide a house or houses of correction, suitably 



34 P.D. 12. 

and efficiently ventilated, with convenient yards, workshops and other 
suitable accommodations adjoining or appurtenant thereto, for the safe 
keeping, correction, government and employment of offenders legally 
committed thereto by the courts and magistrates of the commonwealth 
or of the United States." 

If the county commissioners maintain quarters to be occupied by the 
sheriff, free of rental, as master and keeper of the jail and house of cor- 
rection, such quarters may well be considered a part of the "house or 
houses of correction . . . and other suitable accommodations," as those 
words are used in said chapter 126, section 8, and if their equipment with 
furniture and other household goods of a like nature is, as a matter of 
fact, necessary to make such quarters proper for the sheriff and his family 
to live in, the purchase of such equipment when necessary is not an im- 
proper expenditure of money. The fact that said G. L., c. 37, § 17, spe- 
cifically provides that the sheriff shall be entitled to "rent, heat and light" 
and certain designated subsistence does not impliedly forbid the furnish- 
ing of the quarters provided for him and his family so that they shall be 
suitable to live in with reasonable convenience. I do not think that the 
intention of the Legislature was to provide that only quarters, bare of 
proper household furniture, should be maintained for the sheriff, in view 
of the language of G. L. (Ter. Ed.), c. 126, § 8, with relation to the furnish- 
ing of "suitable accommodations" in connection with houses of correc- 
tion. See II Op. Atty. Gen. 613, 614. 

Just what furniture or equipment is necessary for the furnishing of 
such suitable accommodations provided for the sheriff as keeper and his 
family, and what is unnecessary or excessive, are questions of fact to be 
passed upon in the first instance by the county commissioners, and there- 
after by the Director of Accounts in the pursuance of his duties; they are 
not questions of law nor are they within the province of the Attorney 
General to determine. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

State Farm — Superintendent — Medical Director. 

The superintendent of the State Farm may appoint and remove the 
medical director of the Bridgewater State Hospital. 

Dec. 27, 1932. 
Dr. A. W. Stearns, Commissioner of Correction. 

Dear Sir : — In a recent communication you have requested my 
opinion upon the following matter : — 

"The present superintendent of the State Farm is anxious to receive 
an opinion as to whether or not, under the statutes, he has the privilege 
of displacing the present incumbent of the position of medical director 
and appointing one of his own choice. 

He also wishes to know if the discharge of the present medical director 
requires the approval of the Commissioner of Correction." 

The superintendent of the State Farm is authorized to appoint the 
medical director of the Bridgewater State Hospital, with the approval of 
the Commissioner of Correction. 



P.D. 12. 35 

G. L. (Ter. Ed.), c. 125, § 48, reads as follows: — 

"The Bridgewater state hospital shall be part of the state farm, and 
the superintendent thereof shall, with the approval of the commissioner, 
appoint a physician as medical director. The medical director shall have 
the care and custody of the inmates thereof and govern them in accord- 
ance with regulations approved by the commissioner." 

Such medical director is a subordinate officer of the State Farm and 
holds office at the pleasure of the superintendent of the State farm. 
G. L. (Ter. Ed.), c. 125, § 4, reads 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. Appointments in 
the prison camp and hospital, state prison colony and state farm shall 
be subject to the approval of the commissioner." 

The said superintendent may therefore remove such medical director 
for any cause which in the exercise of his sound judgment and discretion 
renders such action necessary for the good of the Commonwealth's insti- 
tutions in his charge, and if such subordinate officer is unfaithful or in- 
competent or uses intoxicating liquor as a beverage the superintendent's 
duty is to remove him forthwith. 

G. L. (Ter. Ed.), c. 127, § 12, reads as follows: — 

"An officer of the state prison who holds his place at the pleasure of 
the warden, or an officer or employee of the state prison colony, Massa- 
chusetts reformatory, reformatory for women, prison camp and hospital 
or state farm who holds his place at the pleasure of the superintendent, 
who is unfaithful or incompetent, or who uses intoxicating liquor as a 
beverage, shall be forthwith removed by him." 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Hunting — Deer — Artificial Light — Rifle. 

Dec. 31, 1932. 
Hon. William A. L. Bazeley, Commissioner of Conservation. 

Dear Sir: — You have asked my opinion upon two questions, "in 
view of possible cases pending." If a determination of these questions is 
necessarily involved in proceedings before the courts it will ultimately be 
for judicial decision. 

For your assistance in prosecuting such cases I will advise you to the 
effect that, in my opinion, no offense is committed under G. L. (Ter. Ed.), 
c. 131, § 104, by a person hunting with the aid or use of an artificial light, 
if such person does not in fact take a mammal as a result of such aid or 
use. It is also my opinion that an owner or occupant of land hunting a 
deer "which he has reasonable cause to believe has damaged or is about 
to damage crops," as set forth in section 108 of said chapter 131, is not 
forbidden by the terms of section 109 of said chapter 131 to hunt such 
deer with a rifle, and may do so lawfully, but that he is prohibited by 
said section 104 from killing such a deer by the aid or use of an artificial 
light. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



36 P.D. 12. 

Hunting and Fishing Licenses — Payment of Fees — Town Clerks. 

Dec. 31, 1932. 

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

Dear Sir : — You have asked my opinion upon the following questions 
relative to the performance of your duties under G. L. (Ter. Ed.), e. 131, 
§ 11, in auditing the record books relative to hunting and trapping li- 
censes kept by city and town clerks under the provisions of said section 11. 

(1) "Section 11, chapter 131 of the General Laws, as amended, requires 
that city and town clerks pay to the Division of Fisheries and Game all 
moneys received by them for various licenses sold in accordance with the 
provisions contained in section 6 of this chapter. Is a city or town clerk 
responsible personally to the Division of Fisheries and Game in account- 
ing for moneys received from the sale of such licenses in cases where he 
has deposited his funds in a bank that may close before he has made his 
remittance in accordance with the above mentioned section?" 

There may be circumstances under which a city or town clerk cannot 
be said to be personally liable for the funds described in your questions 
when deposited in a bank. An examination of all the facts surrounding 
any particular instance of such a deposit would be necessary to a deter- 
mination as to such liability. This is a determination of mixed questions 
of law and fact which it is not within your authority to make. For the 
purpose of your audit the amount of such funds may be treated in the 
first instance as due to the Division of Fisheries and Game from the clerks 
who received the same. 

(2) Your second question reads : — 

"Is a city or town clerk personally responsible in accounting to the 
Division of Fisheries and Game in cases where he has sold hcenses to non- 
residents for an amount that is less than that required by law — chapter 
131, section 8, Acts of 1930 as amended by chapter 263, Acts of 1931?" 

I answer this question in the affirmative. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Public Health — Milk — Analyses as Public Records. 

Jan. 13, 1933. 
Dr. George H. Bigelow, Commissioner of Public Health. 

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

"Will you kindly inform me whether or not the analyses of samples of 
milk obtained by milk inspectors, local boards of health, or by this de- 
partment are the private property of the board or department, to be used 
for its own information and to be given out or withheld at its own discre- 
tion, provided that the results of the analyses are sent to the persons 
from whom taken as provided by statute." 

An examination of the applicable statutes reveals no requirement by 
which such analyses or the results thereof, to which you refer, are required 
to be given to any person other than such persons as are specifically men- 
tioned in the statutes as entitled to a return of the results of such analyses. 
Certain official publications of the department with relation to the analy- 
ses of adulterated articles of food are required by G. L., c. Ill, § 25, to 



P.D. 12. • 37 

be made at stated periods, but those I assume are of a different type from 
the analyses referred to in your letter. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Commissioner of Correction — Deputies — Term of Office. 

The Commissioner has power to appoint and remove two deputy com- 
missioners, subject to the approval of Governor and Council. 

If not sooner removed, the deputies' terms end with that of the Commis- 
sioner who appointed them, but they may hold over until their 
successors are quahfied. 

Jan. 19, 1933. 

Hon. Francis B. Sayre, Commissioner of Correction. 

Dear Sir : — You have addressed to me the following communication : — 

'*! should appreciate it if you would advise me whether or not G. L., 
c. 27, § 2, gives the Commissioner of Correction the privilege of appointing 
two deputies of his own selection. And if so, does section 2 require the 
approval of the Governor and Council of his action in removing the deputy 
commissioners who have been appointed by a preceding Commissioner." 

G. L. (Ter. Ed.), c. 27, § 2, reads: — 

"The commissioner may, with the approval of the governor and coun- 
cil, appoint and remove two deputy commissioners, and, with like ap- 
proval, fix their compensation. The deputy commissioners shall perform 
such duties as the commissioner shall prescribe, and he may designate 
one of them to discharge the duties of the commissioner during his absence 
or disability." 

1. The Commissioner of Correction has the power to appoint two 
deputies of his own selection, by virtue of G. L. (Ter. Ed.), c. 27, § 2, 
subject, however, to the approval of the Governor and Council. During 
his term of office he may remove such deputies whom he has so appointed, 
if such removal has the approval of the Governor and Council. 

2. The terms of office of the two deputy commissioners appointed 
under said section 2, if they are not sooner removed, end with that of the 
Commissioner who appointed them. After the term of the Commissioner 
who appointed them has ceased, they remain in their official positions 
only until their successors are appointed by a new Commissioner and 
qualified. The appointment and qualification of their successors auto- 
matically ends their respective connections with their positions. If the 
Commissioner so appoints, with the approval of the Governor and Coun- 
cil, successors to such deputies and they qualify, no removal of such 
deputies has been made by the Commissioner, as the word "removal" is 
used in said section 2. 

3. If, however, the Commissioner does in fact remove such deputies 
during the period of their hold-over, before their successors are appointed 
and qualified, an approval of such an actual removal must be given by 
the Governor and Council before the removal becomes effective. 

The general principles of law applicable to your questions were laid 
down by the Supreme Judicial Court in Opinion of the Justices, 275 Mass. 
575, 579, with particular relation to the first deputy auditor but with 
controlling effect in the instant matter. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



38 P.D. 12. 

Prisoners — Employment — Licenses. 

An inmate of the State Prison Colony may by direction of the prison 
authorities operate without a Hcense a steam shovel in an industry 
established at the colony. 

Jan. 20, 1933. 

Hon. Francis B. Sayre, Commissioner of Correction. 

Dear Sir : — You have requested my opinion as to whether or not an 
inmate of the State Prison Colony who holds a fourth-class license can 
operate a steam shovel while serving his sentence. 

The provisions of law which relate to the emplojmient of prisoners in 
industries at the State Prison Colony are contained in G. L. (Ter. Ed.), 
c. 127, § 51, which provides, in part, as follows:—^ 

"The commissioner and the warden of the state prison, the superin- 
tendent of the Massachusetts reformatory, reformatory for women, prison 
camp and hospital, state prison colony or state farm, keepers or masters 
of jails and houses of correction, shall determine the industries to be 
established and maintained in the respective institutions under the con- 
trol of said officers. The prisoners in said institutions shall be employed 
in said industries under regulations which shall be established by the 
commissioner; . . . ." 

The provisions relative to licensing of operators of steam shovels are 
contained in G. L. (Ter. Ed.), c. 146, §§ 46-49, inclusive. 

The Legislature has entrusted the employment of inmates in industries 
at the State Prison Colony to the Commissioner and the superintendent 
of the State Prison Colony subject to regulations established by the Com- 
missioner. I assume from the tenor of your letter that the use of a steam 
shovel is to be in connection with an industry established under the terms 
of the statute, and that it is an industry, directly connected with property 
of the Commonwealth itself, in which inmates of the State Prison Colony 
are employed. In carrying out such employment on the property of the 
State Prison Colony the Commissioner and the superintendent act as 
agents of the Commonwealth and are exercising domination over property 
of the Commonwealth. The general law made for the regulation of citi- 
zens in regard to the operation of steam shovels must, under general 
principles of statutory interpretation, be held to be subordinate to the 
special statute placing in the Commissioner and the superintendent the 
complete jurisdiction over the establishment and maintenance of industries 
and the employment of inmates therein at the State Prison Colony. No 
such 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 licensing officials authority to control 
or interfere with the reasonably necessary efforts of the Commissioner 
and the superintendent to perform their duties as agents of the Common- 
wealth. Teasdale v. Newell & Snowling Construction Co., 192 Mass. 440, 
443; I Op. Atty. Gen. 290; II ibid. 56 and 399; V ibid. 49 and 109; 
Attorney General's Report, 1932, p. 86. 

In my opinion, therefore, it is not necessary for an inmate of the State 
Prison Colony to have a license to operate a steam shovel before being 
employed in that capacity in an industry at the State Prison Colony. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 39 

Civil Service — Brookline Contagious Hospital — Superintendent. 

Feb. 2, 1933. 
Hon. Paul E. Tierney, Commissioner of Civil Service. 

Dear Sir : — You request my opinion as to whether the position of 
superintendent of the BrookHne Contagious Hospital is exempted from 
classification under civil service by Civil Service Rule 4, which exempts 
from classification "the superintendents, and deputy superintendents of 
penal, reform and charitable institutions not specifically included by 
statute." I understand that there is no statute providing for the inclusion 
of the position here in question. The question then is whether the hos- 
pital is "a charitable institution" within the meaning of the rule. In my 
opinion it is. According to the information furnished me, substantially 
all the patients pay nothing. The fact that charges are occasionally made 
to patients who can afford to pay is immaterial. See McDonald v. Mas- 
sachusetts General Hospital, 120 Mass. 432. 

Accordingly, I advise you that the position here in question is not 
under civil service. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Physician — Registration — Qualifications — Certificates. 

Intervening vacations are not to be counted in computing the time of a 
course of instruction necessary to a degree in a medical college at- 
tended by an applicant for registration as a physician. 

The validity of a physician's registration does not depend upon whether 
he was qualified to be examined if he in fact secured a certificate of 
registration, though the same may be revocable. 

Feb. 6, 1933. 

Board of Registration in Medicine. 

Gentlemen: — You request my opinion (1) as to whether the phrase 
"a full four years' course of instruction of not less than thirty-six weeks 
in each year," as used in G. L., c. 112, § 2, is to be construed as meaning 
that there must be offered thirty-six weeks of actual instruction during 
each year; and (2) whether, if the first question is answered in the affirm- 
ative, certificates of registration which may in the past have been granted 
by the Board to graduates of medical schools which did not in fact give 
thirty-six weeks of actual instruction are invalid, so that legislation is 
necessary to validate them. 

Said section 2 reads, in part, as follows : — 

"Applications for registration as qualified physicians, signed and sworn 
to by the applicants, shall be made upon blanks furnished by the board of 
registration in medicine, herein and in sections three to twenty-three, 
inclusive, called the board. Each applicant, who shall furnish the board 
with satisfactory proof that he is twenty-one or over and of good moral 
character, that he possesses the educational qualifications required for 
graduation from a public high school, and that he has received the degree 
of doctor of medicine, or its equivalent, either from a legally chartered 
medical school having the power to confer degrees in medicine, which 
gives a full four years' course of instruction of not less than thirty-six 
weeks in each year, or from any legally chartered medical school having 
such power, if such applicant was, on March tenth, nineteen hundred and 



40 P.D. 12. 

seventeen, a matriculant thereof, shall, upon payment of twenty-five 
dollars, be examined, and, if found qualified by the board, be registered as 
a qualified physician and entitled to a certificate in testimony thereof, 
signed by the chairman and secretary." 

Said section further provides : — 

"The board, after hearing, may revoke any certificate issued by it and 
cancel the registration of any physician convicted of a felony; or, after 
hearing, may revoke any certificate issued by it and cancel for a period 
not exceeding one year, the registration of any physician, who has been 
shown at such hearing to have been guilty of . . . aiding or abetting in 
any attempt to secure registration, either for himself or for another, by 
fraud; ..." 

Your first question I answer in the affirmative. The statute seems 
unambiguous. The thirty-six weeks referred to must be weeks of instruc- 
tion. Intervening vacation periods are not to be included. 

As to your second question, the certificates of registration referred to 
are not, in my opinion, invalid. According to the terms of the statute, 
the right to registration depends upon the examination and not upon the 
question of qualification to take the examination. That question has been 
previously presented and determined. The two things are distinct. The 
validity of a physician's registration does not, in my opinion, depend 
upon whether he was in fact qualified to be examined. He furnished 
proof which satisfied the Board that he was entitled to be examined, and 
that was all that he was required to do. This view is confirmed by the 
fact that the statute further provides for revocation of certificates by the 
Board after hearing, for certain stated causes, including fraud in securing 
registration. This shows that it was intended that a registration once 
issued should be valid until revoked. 

Accordingly, in my opinion, no legislation is necessary in order to 
legalize the certificates of registration to which you refer. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement System — Election — Former Employee. 

A person who has been retired from the public service may not vote at 
the election of a member of the State Board of Retirement. 

Feb. 7, 1933. 

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

Dear Sir : — You request my opinion as to whether a former State 
employee who has been retired under the retirement system is entitled 
to vote at the election of a member of the State Board of Retirement. 

It is provided by G. L. (Ter. Ed.), c. 10, § 18, that one member of the 
Board shall be "elected by the state retirement association established 
under section two of chapter thirty-two from among their number ..." 
Said section 2 provides: — 

"There shall be a retirement association for the employees of the com- 
monwealth, including employees in the service of the metropolitan district 
commission, organized as follows: ..." 



P.D. 12. 41 

This provision, so far as it goes, restricts membership in the association 
to "employees," and I find nothing elsewhere in the act which seems to 
affect or change this result. 

"Employees" are defined in section 1 as — 

"persons permanently and regularly employed in the direct service of 
the commonwealth or in the service of the metropolitan district commis- 
sion, whose sole or principal emploj-ment is in such service." 

A person who has been retired does not come within this definition of 
employees, and is accordingly, in my opinion, not a part of the associa- 
tion, within the meaning of said section 2, and is not entitled to vote for 
a member of the Board under G. L. (Ter. Ed.), c. 10, § 18. 
Ver}' truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Payment of Wages — Contractors. 

Feb. 23, 1933. 

Hon. George W. Knowlton, Jr., Senate Chairman, Committee on Public 

Service. 

Dear Sir: — You have requested me on behalf of your committee to 
give my opinion as to the constitutionality of House Bill No. 1054, if 
enacted into law. 

The proposed measure is entitled "An Act relative to the emploj^ment 
of mechanics, teamsters, chauffeurs and laborers on public works," and 
amends sections 26 and 27 of G. L., c. 149. 

The Supreme Judicial Court recently held in Commonwealth v. Daniel 
O'ConneWs Sons, Inc., 281 Mass. 402, that section 26, so far as it pur- 
ports to make it a crime for a contractor on public works to pay "less 
than the prevailing rate of wages for a day's work in the same trade or 
occupation in the locality," is unconstitutional upon the ground of in- 
definiteness. The proposed act (by amendment to section 27) contains 
the same prohibition, but with added changes and qualifications. A 
significant change is that a violation of the prohibition is no longer, at 
least in the first instance, a crime. Instead, provision is made in the case 
of a dispute for an investigation b}^ the Department of Labor and Indus- 
tries and a determination by that department of what is the customary 
and prevailing rate of wages in the locality. After such determination the 
contractor is made criminally liable for paying less than the amount so 
determined; but the proposed act, unlike the present statute (section 26), 
does not purport to impose any criminal liability prior to such determina- 
tion. In addition, the proposed act defines the terms "customary and 
prevailing rate of wages" and "locality," which were held in the O'Connell 
case to be indefinite. The question to be investigated and determined by 
the department seems to be fixed with a sufficient degree of definiteness. 
For these reasons the objections raised in the O'Connell case do not, in 
my opinion, apply. I think the act is constitutional. 
Very truly yours, 

Joseph E. Warner, Attorney General. 



42 P.D. 12. 

Forfeitures — Motor Vehicles — Liquor Law. 

An automobile forfeited as a container or implement for the illegal sale 
of liquor is to be sold only under order of a court. 

Feb. 28, 1933. 

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

Dear Sir: — You request my opinion as to how automobiles seized 
as containers or implements of sale of liquors contrary to law and in the 
possession of the State Police should be kept or disposed of. You also 
ask what, if any, change has been made in the law relating to this matter 
since January 1, 1927. 

Prior to a final court order of forfeiture or return the officer making the 
seizure of an automobile should "securely keep the same" until such 
final action by the court. This was the law on January 1, 1927, and still 
is (G. L., c. 138, §§ 61, 64; G. L. (Ter. Ed.), c. 138, §§ 61 and 64). 

As to disposition after a final order of forfeiture, the statutory provi- 
sions affecting motor vehicles were changed by St. 1929, c. 329. Prior 
to this statute the law was as follows : If the court determined a motor 
vehicle to be a vessel in which liquor was "contained" (G. L., c. 138, 
§§ 61 and 64), the statute provided that such vessel, like the intoxicating 
liquor contained therein, should be forwarded upon written order of the 
court to the Commissioner of Public Safety, who should either destroy 
such vessel or cause it to be sold, according to which course "in the judg- 
ment of the Commissioner" was for the best interests of the Common- 
wealth, the proceeds of the sale to be paid into the treasury of the Com- 
monwealth (G. L., c. 138, § 69, as amended by St. 1923, c. 329; cf. E. J. 
FitzunUiam Co. v. Commonwealth, 258 Mass. 103; VIII Op. Atty. Gen. 
525). If a motor vehicle were determined by the court to be an implement 
of sale, the statute provided that it should be disposed of in the manner 
provided for the forfeiture and disposition of intoxicating liquors, i.e., 
forwarded to the Commissioner under the provisions of section 69; but 
with the added proviso that the court might order the destruction or sale 
of the property by any officer qualified to serve criminal process, the 
proceeds of a sale to be paid to the county (G. L., c. 138, § 71). It appears, 
therefore, that these statutory provisions required a forfeited automobile 
to be destroyed or sold, either by order of the court under section 71, or 
by determination of the Commissioner of Public Safety where such auto- 
mobile had been forwarded to him b}^ order of the court under the pro- 
visions of section 69. 

By St. 1929, c. 329, special provision was made for the disposition of 
forfeited motor vehicles as distinguished from other containers or imple- 
ments of sale. This act provides, by amendment of G. L., c. 138, § 68, 
that where a motor vehicle has been held to be a container or implement 
of sale contrary to law the court "shall, unless good cause to the contrary 
is shown, order a sale," the net proceeds to be turned into the treasury of 
the Commonwealth. Section 71 was also amended by providing that 
"the provisions of this section shall not apply to a motor vehicle if seized 
and held to be an implement of sale as aforesaid, hut the disposition of 
such a motor vehicle shall be governed by the provisions of section sixty- 
eight." Thus section 69, providing for the forwarding of a forfeited 
automobile to the Commissioner for disposition by him either by destruc- 
tion or sale, became inoperative. As the law now stands the disposition 



P.D. 12. 43 

of a forfeited automobile is governed solely by the provisions of section 
68, as amended, i.e., such automobile is to be sold under order of the 
court. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

State Boxing Commission — Members' Traveling Expenses. 

An appointive member of the State Boxing Commission is not entitled 
to reimbursement for expenses of travel between his home and the 
Commission's office. 

March 9, 1933. 

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

Dear Sir: — You request my opinion as to whether, under G. L., c. 22, 
§ 12, an appointive member of the State Boxing Commission is entitled 
to expenses incurred in traveling between his home and the office of the 
Commission in the State House. 

Said section 12 provides that the State Boxing Commission shall consist 
of the Commissioner of Public Safety, ex officio, as chairman, and of two 
appointive members; that the appointive members shall receive such 
salaries, not exceeding $3,500 each, as the Governor and Council shall fix. 
The section then provides: "The members shall receive their traveling 
expenses necessarily incurred in the performance of their duties, and the 
commission shall be allowed such sums for clerical assistance as the gov- 
ernor and council may approve." 

In my opinion, the Legislature did not intend the phrase "traveling 
expenses necessarily incurred in the performance of their duties" to 
include the expense incurred by a member in getting from his home to the 
office of the Commission, or in returning home again. It is not usual to 
allow such expenses, and in the absence of clear language to the contrary 
the statute should not be construed as providing for such an allowance. 
The words used in the statute do not seem to me to evince an intent that 
such expenses should be paid. It may well be contemplated that the 
members of the Commission might be required to travel to different 
places in the State in the performance of their duties, and, in my opinion, 
it is to such traveling expenses that the statute refers. Moreover, this 
view is in accord with an opinion given some years ago by one of my 
predecessors in connection with a similar statute (I Op. Atty. Gen. 199). 

Accordingly, I answer your question in the negative. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Licenses — Steam Boilers and Engines — Engineers. 

A certain type of steam turbine engine may be operated without the 
direction of a licensed engineer. 

March 13, 1933. 

Mr. John H. Plunkett, Director, Division of Inspection, Department of 
Public Safety. 

Dear Sir : — You request my opinion as to whether a certain type of 
steam turbine engine can be operated except under the direction of a 
licensed engineer. G. L., c. 146, § 46, provides, in part: — 



44 P.D. 12. 

''No person shall have charge of or operate a steam boiler or engine 
or its appurtenances, except boilers and engines upon locomotives, motor 
vehicles, boilers and engines in private residences, boilers in apartment 
houses of less than five apartments, boilers and engines under the juris- 
diction of the United States, boilers and engines used for agricultural 
purposes exclusively, boilers and engines of less than nine horse power, 
and boilers used for heating purposes exclusively which are provided with 
a device approved by the commissioner limiting the pressure carried to 
fifteen pounds to the square inch, unless he holds a license as hereinafter 
provided." 

Section 48 provides, in part : — 

"A steam turbine engine shall be rated at less than nine horse power 
when the external diameter of the steam supply pipe does not exceed one 
and three fourths inches, at fifty horse power when it exceeds one and 
three fourths inches and does not exceed three and one half inches, and 
at one hundred and fifty horse power when it exceeds three and one half 
inches and does not exceed five inches." 

The engines in question are to be used in place of electrical motors for 
providing the motor power necessary to operate a vacuum pumping 
system in connection with steam heating apparatus. The boilers which 
supply the pressure for operating these engines are solely boilers used for 
heating purposes exclusively and which are equipped with an approved 
device hmiting the pressure to 15 pounds to the square inch, as provided 
for in section 46. It seems to be agreed that in fact no additional danger 
can be involved in using the engines in connection with such boilers. The 
difficulty arises from the fact that the steam supply pipe of these engines 
exceeds 1^4 inches in external diameter, and so, under the terms of section 
48, gives the engine a rating in excess of 9 horse power, and thereby may 
seem to put them in a class for which a, licensed engineer is required under 
the provisions of section 46. However, in my opinion, section 46 is not 
to be construed as applying to engines used solely in connection with 
boilers which are themselves regulated by the statute. In the cases where 
the section regulates engines it regulates the boilers as well. The phrase 
in each case is "boilers and engines." It is provided that no engineer is 
required for boilers used for heating purposes exclusively which are pro- 
vided with a device approved by the Commissioner limiting pressure 
carried to 15 pounds. The boiler, or source of the power, being thus 
approved, there seems no reason for regulating an engine used solely in 
connection therewith; and the statute does not, in my opinion, purport 
to do so. 

The framers of the law, so far as it limits the horse power of a steam 
engine, seem to have been concerned only with operating pressure, for 
no regulation was made of other kinds of engines. Thus gasoline engines, 
Diesel engines, etc., could be used in connection with the low pressure 
heating boilers here in question, however great the horse power of such 
engines might be. There appears to be no reason why steam engines 
getting their pressure solely from such boilers should not equally be used; 
and, as before stated, I think the statute need not and should not be 
construed as prohibiting such use. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 45 

Motor Vehicles — Taxes — United States Reservations. 

Automobiles customarily kept on United States reservations are not 
liable to an excise tax. 

March 14, 1933. 
His Excellency Joseph B. Ely, Governor of the Commonwealth. 

Sir : — You request my opinion as to the taxability, under the existing 
laws of the Commonwealth, of registered automobiles owned by the 
United States Army personnel quartered within Fort Devens and other 
military reservations under the exclusive jurisdiction of the United States. 

G. L. (Ter. Ed.), c. 60A, § 1, provides that ''there shall be assessed and 
levied in each calendar year on each motor vehicle registered under the 
provisions of chapter ninety and customarily kept within the common- 
wealth, for the privilege of operating such motor vehicle upon the high- 
ways during such year, an excise tax upon the value thereof, ..." 

The statute by its terms imposes an excise only in respect to the use of 
automobiles which are "customarily kept within the commonwealth." 
The reservations to which you refer as being within the exclusive juris- 
diction of the United States cannot be said to be "within the common- 
wealth," as these words are used in the statute. 

If, therefore, the automobiles to which you refer are "customarily 
kept" on the reservations, the statute makes no provision for a tax. 
Whether they are so kept involves questions of fact, which, of course, I 
cannot determine. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

State Prison Colony — Disposition of Receipts from Labor. 

The receipts from labor at the State Prison Colony are to be dealt with 
in the same manner as in other penal institutions under G. L., c. 127, 
§71. 

March 16, 1933. 

Hon. Francis B. Sayre, Commissioner of Correction. 

Dear Sir : — You request my opinion as to whether the provisions of 
section 71 of G. L., c. 127, relating to the accounting for and disposition 
of receipts from prison labor, are applicable to the State Prison Colony. 

Although the State Prison Colony is not named with the other institu- 
tions enumerated in section 71, which are "the state prison, the Massa- 
chusetts reformatory, the reformatory for women, the prison camp and 
hospital and the state farm," yet, in my opinion, the provisions of that 
section are made applicable to the State Prison Colony by G. L., c. 125, 
§ 41E, which provides: — 

"All provisions of law applying generally to the institutions under the 
control of the department of correction shall apply to the state prison 
colony." 

The same sections of chapter 127 (§§ 51 et seq.) which provide for the 
establishment and conduct of prison labor in the institutions named in 
section 71 apply specifically to the State Prison Colony as well. The 
State Prison Colony being thus grouped with the other institutions in 
the Sections providing for the conduct of prison labor, it certainly must 
have been intended, in the absence of some provision to the contrary, 



46 P.D. 12. 

that the receipts from such labor at the State Prison Colony should be 
handled in the same way as the receipts from the other institutions with 
which it is grouped. There is no reason for a differentiation. It seems 
likely that the failure, at the time of the establishment of the State Prison 
Colony (St. 1927, c. 289), to amend section 71 so as to include in terms 
the State Prison Colony was due to a supposition that the enactment of 
section 41E of G. L., c. 125 (St. 1927, c. 289, § 1), would take care of the 
matter, and, in my opinion, said section 41E is to be construed as having 
that effect. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Civil Service — Teachers — Exemptions. 

"Playground Workers" of the city of Boston are to be classed as "public 
school teachers," so as to be exempted from the civil service laws as 
regards appointment. 

March 27, 1933. 

Commissioners of Civil Service. 

Gentlemen: — You request my opinion as to whether "playground 
workers" of the city of Boston, who perform services by virtue of St. 1907, 
c. 295, are "public school teachers" within the meaning of G. L., c. 31, 
§ 5, which exempts from civil service the selection or appointment of 
"public school teachers." 

The statute to which you refer (St. 1907, c. 295) reads as follows: — 

"Section 1. The school committee of the city of Boston, within the 
limit of the appropriations for such purposes made by it as hereinafter 
authorized or under existing authority of law, shall, during the summer 
vacation and such other part of the year as it may deem advisable, or- 
ganize and conduct physical training and exercises, athletics, sports, 
games, and play, and shall provide proper apparatus, equipment and 
facilities for the same in the buildings, yards and playgrounds under the 
control of said committee, or upon any other land which it ma}^ have the 
right to use for this purpose. 

Section 2. The said committee shall use for the purposes aforesaid 
such of the playgrounds, gymnasia or buildings under the control of the 
park commission of said city as the school committee may deem suitable 
therefor, and may equip the same therefor, such use to be subject however 
to such reasonable regulations and conditions as the park commission may 
prescribe; provided, also, that such use shall not extend to any playground, 
gymnasium or building under the control of the park commission which 
said commission shall by vote approved by the mayor declare to be unsuit- 
able for such use. 

Section 3. Appropriations for the above-named purposes shall be 
made by the school committee in the same manner in which it makes 
appropriations for the support of the public schools, and the total amount 
of the appropriations which said committee is authorized by law to make 
is hereby increased for the current financial year of the city by two cents 
upon each one thousand dollars of the valuation on which the appropria- 
tions of the city council are based, and by two cents additional, or four 
cents in all, for each subsequent year; but the amount of said increase 
shall be appropriated solely for the purposes mentioned in this act. 

Section 4. This act shall take effect upon its passage." 



P.D. 12. 47 

You do not state the duties of those to whom you refer as "playground 
workers." The act of 1907 is entitled "An Act to enlarge the powers of the 
school committee of the city of Boston in respect to physical education." 

Section 306 of the rules and regulations promulgated by the school 
committee, entitled "Rules of the School Committee and regulations of 
the public schools of the city of Boston," reads, m part, as follows: 

"1. Teachers in playgrounds and teachers of athletics shall consist of 
teacher coaches, teacher managers, supervisors of playgrounds, play 
teachers, first assistants in playgrounds, assistants in playgrounds, assist- 
ants in sand gardens, and teachers of dramatics and story-telling. There 
shall be as many teachers of these ranks as the School Committee may 
authorize." 

I assume that the persons to whom your question refers are in fact 
engaged in teaching. The only question, then, is whether they are "pub- 
lic school teachers" within the meaning of section 5 of the civil service act. 

In my opinion, said section 5 is to be construed as including the teachers 
here in question. It is true that under some statutes the term "public 
schools" has a limited meaning, which would not include the activities 
here involved. Thus in Commonwealth v. Connecticut Valley St. Ry. Co., 
196 Mass. 309, the statute requiring street railway companies to trans- 
port at a lower rate "pupils of the public schools," was construed as 
limited to schools which are part of our system of compulsory education. 
(This statute has since been amended to include public evening schools 
and vocational schools. G. L., c. 161, § 108.) But the question here is 
the construction of the phrase as used in the civil service exemption 
statute. In my opinion, it is the intention of that statute to give pubHc 
school committees free choice in the matter of selecting teachers to carry 
out the educational work of such committees. Physical education, under 
the terms of St. 1907, c. 295, is part of the work of the school committee 
of the city of Boston. The same reason seems to exist for exempting 
from civil service the selection of teachers for this work that exists in 
connection with the selection of other teachers. Moreover, to construe 
the words "pubhc school" as used in the civil service statute as having 
the limited meaning given those words in the statute before the court in 
Commonioealth v. Connecticut Valley St. Ry. Co., supra, would have the 
effect of bringing within civil service the selection and appointment of 
many other teachers than those here in question. The appointment of 
all these teachers, including the teachers appointed under St. 1907, c. 295, 
has hitherto been regarded as exempt from civil service. 

In my opinion, section 5 of G. L., c. 31, is not to be construed as requir- 
ing a change in this practice. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Armories — Entertainments — Licenses. 

Licenses from municipal authorities are not required for entertainments 
lawfully given in State armories. 

March 30, 1933. 
Brig. Gen. John H. Agnew, The Adjutant General. 

Dear Sir : — You have in effect asked my opinion as to whether persons 
using State armories, under the provisions of G. L. (Ter. Ed.), c. 33, 



48 P.D. 12. 

§§ 48-50, for certain nonmilitary purposes authorized by said section 48, 
duly approved by designated military authorities of the Commonwealth, 
must obtain licenses from municipal authorities if the use includes such 
forms of entertainment as, if conducted elsewhere, would require such 
licenses under the terms of G. L. (Ter. Ed.), c. 140, §§ 181 and 182. 

I answer your inquiry to the effect that licenses from municipal authori- 
ties are not required under the designated conditions. 

The custody and control of armories are vested in the Commonwealth 
and exercised by its authority through commissioners and other officers 
of the Commonwealth. The statutes with relation to the use of armories 
by persons for nonmilitary purposes [said G. L. (Ter. Ed.), c. 33, §§ 48-50] 
purport to make all appropriate regulations for their use. The statutes 
do not provide for the application of the General Laws concerning the 
licensing of certain entertainments by municipahties to such use. 

It follows that, since the specific subject of the regulation of the non- 
military use of armories has been apparently dealt with in full by the 
Legislature, without provision being made for the application of the 
general licensing authority of municipal authorities to such use of armory 
properties peculiarly within the control of the Commonwealth itself, it 
was not the intent of the Legislature in the enactment of statutes with 
relation to such use of armories to permit activities authorized by officials 
of the Commonwealth therein to be burdened by the licensing powers of 
local officials (IV Op. Atty. Gen. 537). The principle of law applies 
equally to an authorized use of an armory for nonmilitary purposes, 
whether such use be carried into effect by members of the National Guard 
or by nonmilitary persons. (See VI Op. Atty. Gen. 72; VIII ibid. 139.) 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Labor — Minors — Em-ployment Certificates. 

Employment certificates with relation to minors under sixteen are not 
required in connection with private domestic service and service on 
farms. 

April 10, 1933. 

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

Dear Sir: — You have requested my opinion in a communication 
which, in part, reads as follows: — 

"Section 65 of chapter 149 of the General Laws states in part: 
'No person shall employ a minor under sixteen or permit him to work 
in, about or in connection with any establishment or occupation named 
in section sixty, or for which an employment certificate is required, for 
more than six days in any one week, or more than forty-eight hours in any 
one week, or more than eight hours in any one day, or, except as provided 
in section sixty-nine, before half past six o'clock in the morning, or after 
six o'clock in the evening. . . . ' 

In section 86, chapter 149 of the General Laws occurs the sentence — 
'Children between fourteen and sixteen employed in private domestic 
service or service on farms shall be required to secure a special certificate 
issued by the superintendent of schools covering such employment. 

The purpose of this letter is to request an opinion from you as to whether 
section 65, in its reference to occupations ' for which an employment cer- 



P.D. 12. 49 

tificate is required' would cover service on farms for children between 
fourteen and sixteen. 

In connection with this inquiry, I would like to call your attention to 
the definition of employment in section 1 of chapter 149, which reads as 
follows : 

'Employment', any trade, occupation or branch of industry, any par- 
ticular method or process used therein, and the service of any particular 
employer; but it shall not include private domestic service or service as 
a farm laborer. ' " 

The term "special certificate," as used in section 86 in more than one 
instance, is not synonymous with "employment certificate," as used in 
section 65 and described in detail in section 87 of said chapter 149. See 
VII Op. Atty. Gen. 422. 

It follows, then, that "private domestic service" and "service on 
farms" do not fall within the occupations for which an "employment 
certificate is required" of minors under sixteen, as described in said section 
65, and the prohibitions relative to the hours of emplojTnent set forth in 
said section 65 have no relation to such minors in "private domestic 
service" and in "service on farms." 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Reclamation Board — Mosquito Control — Expenditures. 

New petitions for the same local plans for mosquito control need not be 
filed each year by municipal officers. 

April 10, 1933. 

Dr. Arthur W. Gilbert, Commissioner of Agriculture. 

Dear Sir : — I am in receipt from you of the following communi- 
cation : — 

"Chapter 307 of the Acts of 1932, approved on June 7, 1932, made an 
appropriation of $130,000 for carrying out mosquito control projects in 
accordance with chapter 112 of the Acts of 1931, in Item 245-b. This 
item states that no expenditure shall be made in a city or town unless 
a petition from the mayor or selectmen is received and approved by the 
State Reclamation Board. 

Chapter 89, 1933, approved March 23, makes a further appropriation 
of $75,000 for the same work. A copy of Item B, as it appears in the act, 
is attached hereto. Presumably it is desired that this work start rather 
promptly. Petitions were made by the municipal authorities of several 
cities and towns under the 1932 act, and in several instances the work 
was not completed. 

I desire your opinion as to whether or not the petitions filed in con- 
nection with Item 245-b of chapter 307 of the Acts of 1932 can be con- 
sidered as petitions under the provisions of Item B of chapter 89 of 1933." 

I am of the opinion that if a petition from a mayor or selectmen for 
mosquito control work has been made and approved in 1932 by the State 
Reclamation Board, money appropriated by St. 1933, c. 89, may be 
expended for such work in the same manner that it may be expended 
upon work as to which such petitions from municipal officers are filed 
subsequent to the passage of said St. 1933, c. 89. 



50 P.D. 12. 

The plan for mosquito control work, originated by St. 1931, c. 112, is 
a single and continuing scheme during the unemployment emergency. 
The fulfillment of specific local plans for such work, once approved by 
the Board, would appear to be a part of the whole undertaking. The 
appropriation of money from year to year by the Legislature for carry- 
ing out the undertaking as a whole would not seem to necessitate the 
filing of new petitions each year by municipal officers for the same local 
plans for the said work, nor does the language of St. 1933, c. 89, read in 
connection with the enactments of 1931 and 1932 appear to limit the 
expenditure of money appropriated for the general purposes of the whole 
undertaking merely to new local plans for such work petitioned for in 
1933, but to include such local plans for such work as have been pre- 
viously so petitioned for and approved but not yet completed. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Motor Vehicles — Tax — United States Reservation. 

An automobile customarily kept on a United States reservation is not 
subject to an excise tax. 

April 21, 1933. 

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

Sir : — Your Excellency has requested me to express an opinion on cer- 
tain correspondence addressed to Your Excellency by the Major General 
of the United States Army commanding the First Corps Area, with rela- 
tion to the collection of an excise tax on registered automobiles owned by 
the United States army personnel. 

On March 14, 1933 (ante, p. 45), I transmitted to Your Excellency 
a written opinion relative to the law apphcable to such a situation as is 
outhned by your correspondent, and stated therein that, if automobiles 
owned by the United States army personnel are "customarily kept" on 
the United States reservations, the statute, G. L. (Ter. Ed.), c. 60A, § 1, 
made no provision for a tax thereon. I also stated that whether such 
automobiles were so kept in any given case was a question of fact. 

The mere fact that such an automobile was used during the greater 
part of the day outside the reservation, as set forth in the correspondence, 
would not of itself be sufficient to warrant a determination that such an 
automobile was not "customarily kept" on a United States reservation, 
if the further fact appeared, as suggested by your correspondent, that 
such automobile was customarily "housed" or garaged at night on a 
United States reservation where the owner thereof was quartered. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Railroads — Directors — Common Management of Two or More Railroads. 

April 25, 1933. 
His Excellency Joseph B. Ely, Governor of the Commonwealth. 

Sir : — You request me to give you an opinion as to the advisability of 
repeal of the laws preventing a director of any other railroad from being 
a director of the Boston and Maine Railroad or a director of the New York, 
New Haven and Hartford Railroad Company, which has been suggested 



P.D. 12. 51 

to you in a letter, a copy of which you enclosed, addressed to Your Excel- 
lency by J. J. Pelley, president of the New York, New Haven and Hart- 
ford Railroad Company. 

The basis of this suggestion is representation that a common manage- 
ment of the Boston and Maine and New Haven properties would be in 
the public interest by the elimination of unnecessary expense, in line with 
the trend toward co-ordinative railroad effort as expressed, President 
Pelley says, by the New England Railroad Committee in its report to 
the Governors of the New England States in May, 1931, and in the report 
of the National Transportation Committee (the Coolidge Committee, 
so called), and that a common management could be promoted or effected 
by permitting directors of any other road to be directors in the Boston 
and Maine and in the New Haven and in both. 

The specific suggestion is repeal of Spec. St. 1915, c. 380, § 25, and c. 383, 
§ 7 (which prohibited interlocking railroad directorates). 

The ability to express any opinion as to the advisability of repeal of 
these two statutes must necessarily be predicated upon an extensive 
study, whereby one may determine whether there should be abrogation 
of this form of railroad management control which has been exercised 
for eighteen years, and whether interlocking directorates would effect 
the economies, which it is represented to you, will ensue therefrom, and 
whether, as a matter of policy, even though immediate economies would 
be effected, it would be wise to restore interlocking directorships without 
assurance that there will be a restoration of those practices and dire 
consequences from which the people decreed emancipation in these statutes. 

At the moment of receipt of your communication, congressional action 
had been invoked along proposals which seemed to indicate a vast change 
in the structure of railroad operations, and these proposals have thus 
become added incidents in the ascertainment of the efficacies so repre- 
sented to be attainable, to enable any calculation as to the advisability 
of repeals. 

In brief, section 25 of Spec. St. 1915, c. 380, and section 7 of Spec. St. 
1915, c. 383, were inserted by the Legislature in furtherance of a program 
of reorganization of the railroad companies constituting the Boston and 
Maine Railroad system and of supervision of the New York, New Haven 
and Hartford Railroad Company, which Governor Walsh proposed as 
remedy, as he described, of a "deplorable condition" arising from rail- 
road mismanagement. 

To what extent these sections, prohibiting interlocking directorates, 
were not so integral a part of the entire legislation adopted to effect such 
program and its present continuance, as to be now safely excised there- 
from, is dependent upon the extent which directors, if now released from 
this restriction, may so conduct themselves as to cease perpetrations 
which caused, in part, the disasters with which Governor Walsh so saga- 
ciously dealt. 

However, I present to you the origin of the legislation, which includes 
the sections, repeal of which is asked, in order that you may be more 
fully acquainted with its occasion. 

Spec. St. 1915, c. 380, reorganized and consolidated the railroad com- 
panies constituting the Boston and Maine system. The original draft of 
this statute was prepared and submitted to the Legislature by Marcus P. 
Knowlton, Henry P. Day, Charles P. Hall, James L. Doherty and Frank 
P. Carpenter, trustees under a decree of the District Court of the United 
States for the Southern District of New York, to represent the interests 



52 P.D. 12. 

of the New York, New Haven and Hartford Railroad Company, the 
Boston Railroad Holding Company and the Boston and Maine Railroad. 
The original draft did not contain the provisions now found in section 25 
of said chapter 380, but they were inserted in the bill during its passage. 
Just prior to its submission to the Legislature, Governor Walsh sent the 
following message to the General Court : — 

"In my address to the General Court on January 7th I called your 
attention to the pressing need of legislation to enable the Boston and 
Maine Railroad to readjust its relations with the subsidiary Unes leased 
and operated by it, and thereby to relieve its shareholders from an in- 
tolerable situation and to avert the disintegration of the system harmful 
alike to the public and the leased company. 

The trustees of the railroad will shortly present to you a request for 
such enabling legislation as they consider desirable and practicable; and 
I urge upon you the great importance of giving their recommendations 
your immediate and careful attention." 

Spec. St. 1915, c. 383, was an act relative to the capitalization of the 
New York, New Haven and Hartford Railroad Company and the further 
supervision of said company by the Commonwealth. This act was under 
consideration by the Legislature at the same time as chapter 380. Chapter 
380 was approved on June 1, 1915, and chapter 383 was approved on 
June 4, 1915. The original draft of chapter 383 did not contain the pro- 
visions now found in section 7 but they were inserted during its passage. 

It is quite apparent that the insertion of section 25 in chapter 380 and 
section 7 in chapter 383 was the result of the insistence of Governor Walsh 
that the Legislature take definite steps to remedy the intolerable situation 
which existed in this State with respect to the two railroad systems. 
Governor Walsh very forcefully presented to the Legislature the situation 
which existed at that time, and I quote from his address to the General 
Court delivered on January 8, 1914: — 

"Our railroad problems continue to be of the most engrossing and 
pressing importance. The loss to our investors resulting from a decade 
of lawlessness and mismanagement on the part of those who have, for 
their own ends, gained and kept control of the New York, New Haven & 
Hartford Railroad is nothing less than a public calamity. ... 

One critical problem — the present condition of the Boston & Maine 
Railroad — calls for present discussion. Prior to the New Haven domi- 
nation of the Boston & Maine it had had an unbroken record of good 
dividend payments for more than seventy years. It had weathered suc- 
cessfully the storms of nearly three-quarters of a century, — more than 
half the life of the nation and of the Commonwealth, including the great 
Civil War, two foreign conflicts and many financial panics. Within ten 
years its capital stock has paid 7 per cent in dividends and sold above 
$190 per share. A confiding public then regarded its securities as sound 
and as safe as a government bond. Within three years it could borrow 
money at 4 per cent. Today it is pajang no dividend, not even on its 
preferred stock. Its common stock now sells at about $40. It cannot 
without difficulty borrow money on any terms. Its stockholders are 
threatened with the loss of their entire investment. Its service is crippled 
for lack of money and credit. It is unable to do its part in our port develop- 
ment, for which nine millions of public money has been provided. 



P.D. 12. 53 

The Cause. — This deplorable condition, menacing alike to investors 
and to the general pubhc, is attributable to three main causes : — 

First. — The system itself was built up in direct disregard of sound 
business principles; it is organically unsound. It is overweighted with 
fixed charges for rentals of the leased lines, some of them much inferior 
in value and earning capacity to that of the lessee company. These leases 
create obligations, equivalent, for most practical and business purposes, 
to debenture bonds. This leasing by one company of more than twenty 
other companies has thrown a risk and burden upon the stockholders of 
the leasing company which was for years not realized. 

Second. — Organically unsound, the revenues of this railroad have also 
been improperly, if not fraudulently, diminished by certain wasting and 
parasitic contracts, notably those made with the American Express Com- 
pany and the Pullman Company, obtained from the Boston & Maine 
management under circumstances which suggest at least a legal fraud. 
Thus revenues that ought to have been collected and applied to the main- 
tenance and improvement of the railroad properties and to the pajinents 
of dividends to its stockholders have been diverted for the benefit of 
these controlling or partially controlling interests. 

Third. — To make a bad situation still worse, within the past three 
years, since the New Haven has taken open control of the Boston & 
Maine, it has accumulated a floating debt of some S27,000,000. This 
debt has mainly grown out of investments in the stocks of leased and 
affiliated companies, the purchase of which at the prices actually paid 
and with the financial resources that the managers of this road had at 
their command indicates recklessness and imprudence. 

Nothing is clearer than that the present condition of the Boston & 
Maine Railroad is due to the form of its financial structure and to the 
incompetence and unfaithfulness of its past management. 

The Remedy. — The control of the Boston & Maine by the New Haven 
is held by the national administration to be obnoxious to the Sherman 
act, and the Federal Department of Justice intends through the courts to 
enforce the wholesome provisions of that law, unless the necessity of 
court proceedings is avoided by the speedy voluntarj^ separation of the 
two systems. This complete and immediate divorce demanded by the 
national government is equally demanded by the sound public policy of 
this Commonwealth. 

There is now a settled and definite consensus of opinion in favor of 
the immediate and complete separation — in fact and not merely in form 
— of these two railroad systems; and, contemporaneously, for a thorough 
reorganization of the Boston & Maine system, which shall be just alike to 
the ratepaying public and to the holders of the securities involved. . . . 

There is no spirit of confiscation in Massachusetts. The owners of the 
securities of public utility corporations may rely on being permitted to 
draw a full and fair return upon all capital honestly and prudently in- 
vested in the public service. But so long as our public utilities are privately 
owned, that private ownership must assume and bear the responsibility of 
management and also pay the penalty for mismanagement. The Com- 
monwealth may and does regulate, both for the benefit of the ratepayer 
and to some degree for the benefit of the investor; but regulation is not 
management, and the main responsibility for the soundness of the invest- 



54 P.D. 12. 

ment rests and must continue to rest upon the management chosen by 
the stockholders. 

Such reorganization as will reduce the proportion of fixed charges and 
put the railroad into the control of a management competent and faithful 
to the interest of its own stockholders or to the public is a condition 
precedent to legislative help and to public favor of any sort. 

I repeat and emphasize : both nation and State insist upon an immediate 
divorce of the Boston & Maine from the New Haven and a contempo- 
raneous reorganization of the Boston & Maine; that a larger part of the 
responsibility for that reorganization rests and must rest upon the owners 
of the stock of the leased lines; that if these owners should fail in the 
immediate, efficient performance of their duty, serious disaster to them 
and to the public at large is to be expected. 

As the representative of the great public interest, I call upon all these 
owners to face now the real truth, to remember that they are, in a broad 
sense, trustees, not merely for themselves and for the stockholders, but 
for the whole Commonwealth. 

While, as I have said, it is for the owners to devise a just and sound 
form of reorganization, it may be found expedient if not necessary to 
charter a new corporation in which the stock of the leased roads should 
be merged with those of the Boston & Maine, — the bonds of all the 
consolidating corporations being assumed by the new company, — so 
that the result shall be a railroad corporation organized substantially in 
accordance with the traditionally sound theories of Massachusetts rail- 
road finance. The Commonwealth can and will aid in a wise plan of 
reorganization, with enabling legislation so framed as effectually to guard 
both our investors and our general public from a recurrence of the mis- 
management and the evils of the past. 

If those who ought to lead in the task of rehabilitating this railroad do 
not rise to their opportunity and dutj^ the Commonwealth is not without 
recourse. The great middle classes which have suffered such losses in 
their savings from the mismanagement of the public service corporations 
by private interests, and have suffered such a loss in their earning power 
from the extortion of monopolies created by these same interests, are no 
longer blind to the pretensions of private ownership. They have seen so 
much vulgar graft where they once thought they saw only respectability, 
they have seen so much mediocrity and downright incompetence in places 
which Tpsbj princely salaries, that the glamor and pretence of it all is 
gone. ... 

Let me repeat, there must be no delay. Massachusetts cannot and will 
not see her industries crippled, her development checked, her investors 
robbed by a continuance of such railroad mismanagement as has marked 
the past few years. If the parties in interest avail themselves at once of 
the opportunity of reorganization on just and fair terms, any enabling 
legislation reasonably desired I shall gladly recommend; but if they fail 
in the prompt and efficient performance of that dut}^, it will then be the 
plain duty of the Commonwealth to take drastic and effective action to 
protect itself, its industries, its savings institutions and its citizens from 
further loss due to incompetent or unfaithful railroad management." 

Very truly yours, 
I Joseph E. Warner, Attorney General. 



P.D. 12. 55 

Labor — Veterans' Preference — Contractors. 

Under G. L. (Ter. Ed.), c. 149, § 26, where the force of laborers is to be 
reduced a veteran is to be given preference as to retention in the 
service. 

April 27, 1933. 

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

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

"In reducing to a smaller group the number of mechanics, teamsters 
and laborers than previously needed on the project coming within the 
provisions of section 26, chapter 149 of the General Laws, is the contractor 
required to give preference to veterans who are qualified to do the work 
over other citizens of the Commonwealth by retaining the veterans on 
the job and discharging the citizen?" 

Said G. L. (Ter. Ed.), c. 149, § 26, reads 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 therewith 
for such construction, addition to and alteration of public works, prefer- 
ence 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 teamsters 
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 altera- 
tion 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." 

In my opinion, the term "in the employment," as used in this section, 
refers to continuation in employment as well as to original employment. 
Accordingly, where the force employed is to be decreased, and the ques- 
tion arises whether a veteran or a nonveteran doing the same class of 
work is to be discharged, the veteran must be retained. See Ransom v. 
Boston, 192 Mass. 299. 

You also request my opinion as to whether the provision in said section 
26, to the effect that no town need give preference to nonresident veterans 
over citizens, applies to cities, and also whether the provision applies to 
contractors engaged upon public works of a town. 

The word "towns," as here used, includes cities, just as it does when 
used in the first part of the section, G. L., c. 4, § 6, cl. 34th. • 



56 P.D. 12. 

Also, in my opinion, the provision in question applies not only to cities 
and towns but to "persons contracting therewith for such construction." 
The proviso as to towns, appearing in the latter part of the section, was 
enacted at the same time with the provision for veterans' preference 
appearing in the first part of the section. Gen. St. 1919, c. 253. The 
two parts are to be read together. Although the words "or by persons 
contracting therewith for such construction," as used in the first part, 
are not repeated in the proviso, they are, in my opinion, applicable to it. 
This construction is in accord with what I think must have been the 
legislative intent. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Civil Service — Conviction. 

Under G. L., c. 31, § 17, the word "conviction" applies to a case where 
a fine has been imposed after a plea of nolo contendere, and to a case 
where there has been a finding of guilty, imposition of a jail sentence, 
or a fine and a suspension of sentence or of pajinent. 

May 1, 1933. 

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

Dear Sir : — You request my opinion as to whether the provision in 
G. L., c. 31, § 17, to the effect that no person shall be appointed or em- 
ployed under civil service within one year after his "conviction" of any 
crime, is applicable (1) where a fine has been imposed after a plea of nolo 
contendere, (2) where there has been a finding of guilty, an imposition of 
a jail sentence, and a suspension of the sentence, and (3) where there has 
been a finding of guilty, an imposition of a fine, and a suspension of pay- 
ment of the fine. 

(1) A number of opinions have been rendered over a period of years 
to the effect that the word "conviction," as used in statutes not dis- 
tinguishable in purport and effect from the statute here in question, 
applies to a case where a fine has been imposed after a plea of nolo con- 
tendere. II Op. Atty. Gen. 276; III ibid. 72; V ibid. 401; opinion to 
the Secretary of the Massachusetts Highway Commission, September 3, 
1908 (not published). In White v. Creamer, 175 Mass. 567, the court 
says: "We do not doubt that a sentence imposed after a plea of nolo 
contendere amounts to a conviction in the case in which the plea is entered." 
See Olszewaki v. Goldberg, 223 Mass. 27. Accordingly, I answer your 
first question in the affirmative. 

(2) and (3). I answer your second and third questions in the affirma- 
tive. There is none the less a conviction because the sentence is suspended. 
See Mariano v. Judge of District Court, 243 Mass. 90. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 57 

Labor — Veterans' Preference — Eight-Hour Law. 

A town availing itself, under G. L. (Ter. Ed.), c. 117, § 2, of the services 
of men who are receiving support from it is not employing laborers 
within the meaning of G. L., c. 149. Therefore, as to such men, 
provisions as to veterans' preference and the eight-hour law do not 
apply. 

May 4, 1933. 

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

Dear Sir: — You request my opinion as to the effect and bearing of 
sections 26 and 30 of G. L., c. 149, upon the use on public works of the 
services of persons supported through the departments of public welfare 
of cities and towns. 

G. L. (Ter. Ed.), c. 117, § 2, is as follows: — 

"The board of public welfare shall have the care and oversight of all 
such poor and indigent persons so long as they remain at the charge of 
their respective towns, and shall see that they are suitably relieved, sup- 
ported and employed in the infirmary, or in such other manner as the 
town directs, or otherwise at the discretion of the board. Said board 
may remove to the infirmary children suffering destitution from extreme 
neglect of dissolute or intemperate parents or guardians, except as other- 
wise provided." 

Section 26 of G. L., c. 149, provides that "in the employment of" 
laborers, as in the construction of public works, preference shall be given 
to veterans and citizens. 

Section 30 of said chapter limits the service of laborers "employed by 
. . . towns" accepting this section to eight hours per day or forty-eight 
hours per week. 

Certain towns, you inform me, are using upon the construction of 
public works the services of men who are receiving support from the 
welfare departments, and who are put to work under the provisions of 
G. L. (Ter. Ed.), c. 117, § 2, above cited. I assume that these men do 
not receive wages for their work, but receive merely the support from the 
welfare departments which they would be receiving if they were not 
working. I assume, also, that the making use of their services upon 
the particular piece of work in question is with the authority of the 
town. 

Your questions are, as I understand them, (1) whether a veteran, for 
instance, who wishes to be hired as a laborer upon the work and paid 
wages therefor, is entitled under said section 26 to employment, notwith- 
standing the fact that there are men receiving support from the welfare 
department who can be put to work without wages under G. L. (Ter. Ed.), 
c. 117, § 2; and (2) whether the eight-hour law is apphcable to the services 
of men put to work by the welfare department under said chapter 117. 

In my opinion, these questions must be answered in the negative. A 
town avaihng itself, under G. L. (Ter. Ed.), c. 117, § 2, of the services of 
men who are receiving support from it is not employing laborers within 
the meaning contemplated by G. L., c. 149. This last chapter refers 
to labor for which wages are paid. Section 26 specifically provides that 
the wages of mechanics and teamsters shall not be less than the prevailing 
rate. This section, and also section 30, have, in my opinion, no reference 



58 P.D. 12. 

to, and in no way control or regulate, labor performed under G. L. (Ter. 
Ed.), c. 117, § 2. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Marriage — Conflict of Laws — Invalidity. 

A marriage between uncle and niece, valid where performed, will be recog- 
nized in this State, where the parties to such marriage have not left 
the Commonwealth for the purpose of entering into it. 

May 8, 1933. 

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

Sir: — Your Excellency has asked my opinion as to the questions of 
law raised by a letter from the United States Secretary of State. 

The letter raises the question as to whether persons occupying the 
relation to each other of uncle and niece, who have been married in Italy, 
could be prosecuted in Massachusetts for incest or other similar crime 
if they came here to reside; and whether, if they so came, their marriage 
would be recognized as valid in Massachusetts. 

Although a marriage between two persons so related is prohibited by 
G. L., c. 207, §§1 and 2, and provision is made for the prosecution of the 
parties to such a marriage under G. L. (Ter. Ed.), c. 272, § 17, neverthe- 
less, such marriages, in view of the fact that the validity of the marriage 
contract is recognized by our courts as governed by the law of the place 
where the marriage is contracted — subject only to the exceptions, — 
(1) marriages which are deemed contrary to the law of nature as generally 
recognized in Christian countries, and (2) marriages which the Legis- 
lature of the Commonwealth has declared shall not be allowed any validity 
because contrary' to the policy of our own laws — are treated here as 
valid and the parties thereto are not liable to criminal prosecution. 
Within the second class of exceptions to the general rule noted there fall 
marriages made in a foreign jurisdiction contrary to our laws by a person 
residing and intending to continue to reside in this Commonwealth, for 
the purpose of avoiding the prohibitions of the marriage laws of the 
Commonwealth (G. L., c. 207, § 10). 

A marriage between uncle and niece has not been treated in this Com- 
monwealth as being contrary to the law of nature and so within the first 
exception noted. Indeed, such marriages were not void but only voidable 
under the law of England, at least prior to 1835. 

Assuming that the law of the foreign country, where the marriage under 
consideration was contracted between parties actually therein, made 
valid such marriage, in spite of the stated relationship of the parties, 
such marriage will be recognized in this State and the parties will not be 
liable to prosecution for incest in this Commonwealth. Sutton v. Warren, 
10 Met. 451; Commonwealth v. Lane, 113 Mass. 458; see Commonwealth 
V. Ashey, 248 Mass. 259. 

The situation would be otherwise if the uncle, who had made his resi- 
dence in Massachusetts with the purpose of continuing it here, "had 
proceeded abroad with the intention of marrying his niece and bringing 
her into the Commonwealth as his wife," as phrased in the letter of the 
Secretar}^ of State, for, in such an event, the uncle, at least, would be 
liable to prosecution under said G. L., c. 207, § 10, and G. L. (Ter. Ed.), 



P.D. 12. 59 

c. 272, § 17, and the marriage would not be recognized as valid in Massa- 
chusetts. Levy V. Downing, 213 Mass. 334. 

Of course, it goes without sajang that if such a marriage is not valid 
under the laws of the foreign country in which it was performed neither 
is it valid in Massachusetts. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Insurance — Life Policy — Forms — Reinstatement. 

Evidence of insurability under G. L. (Ter. Ed.), c. 175, § 132, par. 11, 
is limited to evidence of the condition of the person upon whose life 
the policy is written. 

The words "holder of a policy" and "insured" are not synonymous. 

May 18, 1933. 
Hon. Merton L. Brow^n, Commissioner of Insurance. 

Dear Sir: — You have set forth certain facts and have asked my 
opinion with relation to the application to them of G. L. (Ter. Ed.), 
c. 175, § 132, as amended, as follows: — 

"The Equitable Life Insurance Company of Iowa has filed a form of 
a policy of life insurance with the commissioner under said section 132, 
which contains the following provision: 

'This policy, if not previously surrendered for cash, and if the extended 
term insurance has not expired, may be reinstated at any time within 
three years after the due date of any premium in default, upon furnishing 
evidence satisfactory to the Company of the insurability of the insured 
and, if the waiver of premium benefit is contained in the policy, of the 
insurability of the original beneficiary, together with the payment of all 
premium arrears with interest from the due date of unpaid premiums at 
six per cent per annum, and the pa^nnent or reinstatement of all indebted- 
ness existing against the policy at the time of such default with accumu- 
lated interest at six per cent per annum.' 

This form of policy insures the life of a minor person upon an applica- 
tion made by his father, who is the contracting party with the insurance 
company and who is described in the policy as the 'original beneficiary.' 
It further provides that in the case of the total and permanent disability 
of the original beneficiary, the company will waive the pa\niient of further 
premiums on the policy." 

G. L. (Ter. Ed.), c. 175, § 132, in its appHcable parts, provides: — 

"No policy of life or endowment insurance . . . shall be issued or 
delivered in the commonwealth until a copy of the form thereof has been 
on file for thirty days with the commissioner, . . . nor shall such policy, 
... be so issued or delivered unless it contains in substance the follow- 
ing: ... 

11. A provision that the holder of a policy shall be entitled to have 
the policy reinstated at any time within three years from the date of 
default, unless the cash surrender value has been duly paid or the exten- 
sion period has expired, upon the production of evidence of insurability 
satisfactory to the company and the payment of all overdue premiums 
and any other indebtedness to the company upon said policy, with interest 
at the rate of not exceeding six per cent per annum or, at the option of 
the company, with interest as aforesaid compounded semi-annually." 



60 P.D. 12. 

Your specific questions are as follows : — 

"1. Does the provision of said section 132 that the holder of a policy 
shall be entitled to have it reinstated upon the production of evidence 
of insurability satisfactory to the company refer to the person whose life 
is insured, or, is a beneficiary named in the policy who makes the contract 
with the company and with whom there also is a contract of insurance 
embodied in the policy, also a 'holder' within the meaning of said pro- 
vision? 

2. May the commissioner of insurance under said section 132 lawfully 
approve a form of life policy that is payable to a beneficiary who makes 
the contract on behalf of the insured with the company, and providing 
that upon the disability of the beneficiary certain benefits shall accrue 
to the insured, if it provides that it may be reinstated upon evidence of 
insurability of the person insured and of such beneficiary satisfactory to 
the company?" 

(1) The words "holder of a policy" and "insured" are not synonymous. 
By holder of a policy is meant the person who enters into the contract 
with the company, becoming liable for the premiums. In the case of a 
person who insures the life of another for his own benefit, as does the 
maker of the policy to which you have referred, such person is the "holder 
of the policy" as such phrase is used in said G. L. (Ter. Ed.), c. 175, 
§ 132, par. 11. 

(2) It has been held in prior opinions of the Attorney General (VIII 
Op. Atty. Gen. 482; Attorney General's Report, 1931, p. 124) that the 
word "insured," as used in G. L., c. 175, § 24, and in section 123, is limited 
in meaning to the person upon whose life the policy is written and does 
not include a beneficiary of such a policy, even though such beneficiary 
has a subsidiary contract of insurance with relation to himself embodied 
in the policy. It follows that the phrase "evidence of insurabihty," as 
used in G. L. (Ter. Ed.), c. 175, § 132, par. 11, is limited to evidence of 
the condition of the person upon whose life the policy is written, and 
does not embrace that of a beneficiary. I therefore answer your second 
question in the negative. 

If the writing of policies such as j-^ou have described is a desirable form 
of insurance, the Legislature might by appropriate and unequivocal 
language provide that beneficiaries of the sort to which you have referred 
should supply evidence of insurability before reinstatement of policies, 
but such a requirement cannot be read into the law in the absence of an 
expression of legislative intent in this regard. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

State Treasurer — Deposits — Stockholder-^ s Liability. 

The State Treasurer may assent to a plan for reorganization of a trust 
company in which the Commonwealth is a depositor. 

Where the Commonwealth is trustee of a fund containing bank stock 
liable to assessment it would appear equitable that a proper propor- 
tion of the assessment should be paid. 

May 18, 1933. 

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

Dear Sir : — You state that the Commonwealth has a deposit in the 
Worcester Bank and Trust Company, which is now closed, and you 



P.D. 12. 61 

request my opinion as to whether you have authority to assent to a plan 
of reorganization under which the Commonwealth will receive an unre- 
stricted checking account, in a national bank to be organized, of forty 
per cent of the deposit and a certificate for the balance, entitling it to 
dividends resulting from the sale of stock in the national bank and from 
the sale of the trust company's assets, as is specifically set forth in a 
prospectus of the proposed plan of reorganization. 
G. L. (Ter. Ed.), c. 29, § 34, provides: — 

"The state treasurer may deposit any portion of the public moneys 
in his possession in such national banks, or trust companies, lawfully 
doing business in the commonwealth, as shall be approved at least once 
in three months by the governor and council; ..." 

In my opinion, if you consider it for the best interests of the Common- 
wealth as a depositor that it assent to the plan of reorganization, you 
should, in view of the provisions of G. L., c. 29, § 34, ask for the approval 
of the Governor and Council, and, upon obtaining such approval, you 
may assent to the plan. 

You also request my opinion as to your authority to compromise an 
assessment of stockholder's liability. You state that 20 shares of stock 
in the Worcester Bank and Trust Company stand in the name of the 
Treasurer and Receiver General, in trust for the Lyman and Industrial 
Schools, and that the Commissioner of Banks has demanded of you the 
payment of $400, or the par value of said 20 shares, as a stockholder's 
liability necessary to pay the debts of the trust company. The proposed 
plan of reorganization, approved by the Commissioner of Banks, pro- 
vides an opportunity for stockholders to compromise, subject to quah- 
fications therein stated, their liability by a payment of seventy-five per 
cent of the assessment. 

This stock is held by you in the Lyman fund, so called, under the pro- 
visions of G. L. (Ter. Ed.), c. 10, § 15, which reads as follows: — 

"The state treasurer may receive from the trustees of Massachusetts 
training schools the principal of the various trust funds conveyed or 
bequeathed to the said trustees for the use of any institution of which 
they are trustees; and upon the request of said trustees he shall pay out 
the income of all such funds, and such part of the principal as may be 
subject to the control of said trustees, in such manner as the trustees may 
direct, subject to any condition affecting the administration thereof 
The state treasurer may also receive from said trustees the unclaimed 
money paid over under section twenty-three A of chapter one hundred 
and twenty which shall be held by him as two separate funds, one to 
consist of money belonging to former male wards of said trustees the 
income of which shall be expended as directed by the said trustees for 
the purpose of securing special training or education for or otherwise 
aiding and assisting their meritorious male wards, and the other to consist 
of money belonging to former female wards of said trustees the income 
of which shall be expended for their female wards in the same manner 
and for the same purposes as above provided for their male wards. Upon 
certificate of the comptroller that a claim thereto satisfactory to him shall 
have been established and approved in writing by the attorney general, 
the state treasurer shall pay to any former ward, or to his legal repre- 
sentatives in case of his death, the amount of money held for his benefit 
and paid over to the state treasurer under said section twenty-three A 
without any accumulations accruing thereto after such payment over, 



62 P.D. 12. 

out of the principal of the fund in which the money so claimed was held 
as aforesaid. The said funds, if in cash, shall be invested safely by the 
state treasurer, or, if in securities, he may hold them in their original 
form or, upon the approval of the governor and council, sell them and 
reinvest the proceeds in securities which are legal investments for the 
commonwealth sinking funds. He shall be held responsible for the faith- 
ful management of said trust funds in the same manner as for other funds 
held by him in his official capacity." 

G. L. (Ter. Ed.), c. 120, § 1, reads as follows: — 

''The trustees of the Massachusetts training schools, in this chapter 
called the trustees, shall be a corporation for the purpose of taking, hold- 
mg and investing in trust for the commonwealth, subject to section fifteen 
of chapter ten, any grant or devise of land or any gift or bequest made 
at anj^ time for the use of any institution of which they are trustees and 
they shall succeed to and retain the rights, powers and duties formerly 
held or acquired by the board of trustees and treasurers of the state reform 
and state industrial or state primary schools except as provided in said 
section." 

There may be some question as to the assessability of this stock so 
held, but it seems at any rate equitable that the Commonwealth should 
assume its share of the liability which it has imposed upon stockholders 
in its trust companies. The amount involved is not large. In my opinion, 
you should seek the approval of the trustees, and, having obtained it, 
compromise the claim as proposed by paying $300 from cash in the Lyman 
fund. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Citizenship — Registration of Voters — Certificate. 

A certificate of derivative citizenship is of the same effect as "papers of 
naturalization" referred to in G. L. (Ter. Ed.), c. 51, § 45. 

May 24, 1933. 

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

Dear Sir: — You have set forth the provisions of G. L. (Ter. Ed.), 
c. 51, § 45, relative to applications for registration as voters of naturalized 
citizens, and of the Federal laws (45 U. S. Stat, at L., 1515), concerning 
persons who claim to have derived United States citizenship through 
the naturalization of a parent. With relation thereto you have asked 
my opinion in the following language : — 

"Will you kindly inform me whether, in your opinion, a certificate of 
derivative citizenship is sufficient for production as papers of naturaliza- 
tion or whether it is necessary to amend our present law to permit same." 

I am of the opinion that a certificate of derivative citizenship issued 
under the applicable provisions of the Federal laws above referred to, 
which is declared by such laws to "have the same effect as a certificate 
of citizenship issued by a court having naturalization jurisdiction," falls 
within the meaning of "papers of naturalization" as those words are used 
in said G. L. (Ter. Ed.), c. 51, § 45. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 63 

Citizens Domiciled — Marital Status. 

May 29, 1933. 
Hon. Edwin S. Smith, Commissioner of Labor and Industries. 

Dear Sir: — You request my opinion "on what steps are necessary 
for a person coming from another State to qualify as a citizen of the 
Commonwealth in order to take advantage of the preference requirements 
accorded citizens on public works, as set forth in G. L., c. 149, § 26." 

You also request my opinion as to whether "a married man and an 
unmarried man, citizens of the United States, coming from outside the 
State, go through different procedures to qualify as citizens of Massachu- 
setts." 

G. L., c. 1, § 1, provides: — 

"All persons who are citizens of the United States and who are domi- 
ciled in this commonwealth are citizens thereof." 

"Domiciled in this commonwealth" means to have their home in this 
Commonwealth. A man can be domiciled only in one place. Whether 
a man living in Massachusetts is domiciled here depends upon whether 
he has in fact in his mind the decision of making his home here. This is 
a question of fact which it is often very difficult to ascertain. The fact 
that he lives here is not enough to make him a citizen. Nor is the fact 
that he says his home is here conclusive. Other facts may indicate that 
his home is really elsewhere. On the other hand, it is not necessary that 
he live here any length of time in order to become domiciled here, and so 
a citizen, provided he has in truth decided that his home is here. 

As to your second question, there is no difference in the procedure of 
becoming a citizen, whether a man is married or unmarried. However, 
his status in this respect, and particularly the question of whether his 
family, if he have one, is living here or elsewhere, has a bearing, together 
with other things, upon the question of his actual intent. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Sunday Laws — Games — Amusements — Licenses. 

June 7, 1933. 
Gen. Daniel Needham, Commissioner of Public Safety. 

Dear Sir : — You request my opinion as to whether licenses to main- 
tain certain enterprises or amusement parks on Sunday, granted by a 
mayor or selectmen under the provisions of section 4 A of G. L., c. 136, 
are required to be submitted to the Commissioner of Public Safety for 
approval, as are licenses granted under section 4 of said chapter. 

Section 4 reads as follows : — 

"Except as provided in section one hundred and five of chapter one 
hundred and forty-nine, the mayor of a city or the selectmen of a town 
may, upon written application describing the proposed entertainment, 
grant, upon such terms or conditions as they may prescribe, a license to 
hold on the Lord's day a public entertainment, in keeping with the char- 
acter of the day and not inconsistent with its due observance, to which 
admission is to be obtained upon payment of money or other valuable 
consideration; provided, that no such license shall be granted to have 



64 P.D. 12. 

effect before one o'clock in the afternoon, nor shall it have effect unless 
the proposed entertainment shall, upon application accompanied by a 
fee of two dollars, have been approved in writing by the commissioner of 
public safety as being in keeping with the character of the day and not 
inconsistent with its due observance. Any such license may, after notice 
and a hearing given by the mayor or selectmen issuing the same, or by 
said commissioner, be suspended, revoked or annulled by the officer or 
board giving the hearing." 

Section 4A was added by St. 1933, c. 150. It reads as follows: — 

"The mayor of a city or the selectmen of a town, upon written applica- 
tion therefor, and upon such terms and conditions as they may prescribe, 
may grant licenses for the maintenance and operation upon the Lord's 
day at amusement parks or beach resorts, so called, in such city or town, 
of any enterprise hereinafter described, for admission to which or for the 
use of which a payment of money or other valuable consideration may or 
may not be charged, namely: — Bowling alleys; shooting galleries re- 
stricted to the firing therein of rifles, revolvers or pistols using cartridges 
not larger than twenty-two calibre; photographic galleries or studios in 
which pictures are made and sold; games approved by the state depart- 
ment of public safety; and such amusement rides, so called, riding devices 
or other amusement devices as may lawfully be operated therein on secular 
days. Any licensee hereunder may distribute premiums or prizes in con- 
nection with any game or device lawfully maintained and operated by 
him under authority hereof." 

The phrase "approved by the state department of public safety" as 
used in section 4A must be construed, in my opinion, as applicable only 
to the "games" referred to in said section, and as inapplicable to the 
other forms of amusement specifically enumerated, namely, bowling 
alleys, shooting galleries, photographic galleries and amusement rides. 
The provision as to games is separated by semicolons from the provisions 
referring to the other forms of amusement enumerated, and is placed, 
moreover, neither at the beginning nor at the end but in the midst of the 
list enumerated. As the statute is drawn, it must, in my opinion, be 
construed as permitting the hcensing of bowling alleys, shooting galleries, 
photographic galleries and amusement rides independently of any deter- 
mination that such amusements are in keeping with the character of the 
day. No such condition is expressed, and I do not see how it can be 
implied. As to "games," the approval of "the state department of public 
safety" is expressly required. This, in my opinion, is to be construed as 
meaning such approval as is provided for in section 4 for the licensing of 
public entertainments, namely, approval of the game by the Commis- 
sioner, in writing, as in keeping with the character of the day, upon appli- 
cation accompanied by a fee of two dollars. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



P.D. 12. 65 

Fish and. Game — Director — Oyen Season. 

The Director of the Division of Fisheries and Game is not authorized 
to declare an open season on pheasants for any territory less than a 
county nor with relation to certain classes of citizens. 

June 15, 1933. 

Hon. Samuel A. York, Commissioner of Conservation. 

Dear Sir : — In a recent communication you have set forth the text 
of G. L. (Ter. Ed.), c. 131, § 90, which is as follows:— 

"The director may declare an open season on pheasants in any county 
where such open season seems advisable, and may make such rules and 
regulations relating to bag limit, time and length of open season and 
varieties to be iaken, and all other matters connected with such open 
season as he may deem necessary or expedient." 

and in relation thereto have asked my opinion as follows : — 

''I would respectfully request your opinion as to whether or not the 
Director of the Division of Fisheries and Game in his discretion is author- 
ized by said section 90 to promulgate regulations which might grant 
different hunting seasons or increased bag limits to those landowners who 
do liberate artificially propagated pheasants at their own expense on 
private lands." 

Said chapter 131, § 90, which is the applicable statute, does not author- 
ize the Director of the Division of Fisheries and Game to declare an open 
season on pheasants for any territory less than that embraced in a county 
nor to create open seasons of varying length for particular classes of 
citizens. Nor does the power to make rules and regulations given such 
Director by said section 90 authorize him to establish rules and regula- 
tions which shall give to a certain class of citizens alone, whether land- 
owners or others, special privileges as to bag limits or other matters in 
connection with the hunting of pheasants. 

The Legislature has not indicated any intent to create special privileges 
in this respect for the benefit of landowners who "liberate artificially 
propagated pheasants," nor has it delegated power to the said Director, 
under the guise of rule making authority, to create classifications of this 
nature of citizens who are not to be subject to rules and regulations binding 
on others relative to hunting pheasants. 

If it is desired to secure for landowners who liberate on private land 
pheasants artificially propagated, special privileges in hunting such birds, 
resort should be had to the General Court. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

State Forests — County Commissioners — Approval of Plans. 

It is not necessary to obtain the approval by county commissioners for 
the construction or alteration of a dam by the Department of Con- 
servation in a State forest. 

July 3, 1933. 

Hon. Samuel A. York, Commissioner of Conservation. 

Dear Sir : — You have requested my opinion as to whether or not 
it is necessary for the department to procure approval of plans by county 



66 P.D. 12. 

commissioners for a dam to be constructed in a State forest under the 
jurisdiction of your department. 

The provisions of law relating to State forests are contained in G. L. 
(Ter. Ed.), c. 132, § 31, which reads as follows: — 

"Section 31. Lands acquired under section thirty or thirty-three 
shall be known as state forests, and shall be under the control and man- 
agement of the forester. Lands acquired by purchase for experiment 
and illustration in forest management and for reforestation under the 
provisions of chapter four hundred and seventy-eight of the acts of nine- 
teen hundred and eight and amendments thereof, or of the corresponding 
provisions of later laws, as to which the period limited for repurchase by 
their original owners, or their heirs or assigns, in accordance with said 
provisions shall have expired without such repurchase, shall also be known 
as state forests and shall be under the control and management of the 
forester to the same extent as if acquired under section thirty. He shall 
reforest and develop such lands, and may, subject to the approval of the 
commissioner and advisory council of the department of conservation, 
make all reasonable regulations which in his opinion will tend to increase 
the public enjoyment and benefit therefrom and to protect and conserve 
the water supplies of the commonwealth." 

The provisions relative to the approval of plans for the construction 
or alteration of a dam are contained in G. L. (Ter. Ed.), c. 253, § 44, which 
reads as follows : — 

"Section 44. A reservoir, reservoir dam or mill dam shall not be 
constructed or materially altered until plans and specifications of the 
proposed work have been filed with and approved by the county com- 
missioners of the county where it is situated. Said commissioners shall 
retain and record such plans and specifications and shall inspect the work 
during its progress; and if at any time it appears that the plans and 
specifications are not faithfully adhered to, they may appoint an inspector 
to be constantly engaged at the expense of the owners in the supervision 
of the work. Upon a refusal of the owners or of their agents to adhere 
to said plans and specifications, said inspector may order the discon- 
tinuance of the work. This and the six following sections shall not apply 
to small dams, constructed for irrigation or for other purposes, the break- 
ing of which would involve no risk to life or property, nor to standpipes 
or tanks, nor to a dam where the area draining into the pond formed 
thereby does not exceed one square mile, unless the dam is more than 
ten feet in height above the natural bed of the stream at any point or 
unless the quantity of water which the dam impounds exceeds one million 
gallons." 

The Legislature has entrusted the management of State forests to the 
State Forester, subje^ct to such control as is exercised by the Commis- 
sioner and Advisory Council of the Department of Conservation. In 
carrying out construction on the property of the Commonwealth in State 
forests the officials of the Department of Conservation act as agents of 
the Commonwealth, and are exercising dominion over property of the 
Commonwealth. The general law made for the regulation of citizens in 
regard to the construction and alteration of dams nmst, under general 
principles of statutory interpretation, be held to be subordinate to the 
special statute placing in officials of the Department of Conservation 
complete jurisdiction over the management of State forests. No provision 



P.D. 12. 67 

to the contrary is to be found in the apphcable statute. It is not to be 
assumed that in the absence of such a special provision the Legislature 
intended to give to local officials vested with a certain power of approval, 
somewhat similar in effect to a licensing power, authority to control or 
interfere with the reasonably necessary efforts of the officials of the De- 
partment of Conservation to perform their duties as agents of the Com- 
monwealth. See Teasdale v. Newell & Snowling Construction Co., 192 
Mass. 440, 443; I Op. Atty. Gen. 290; II ibid. 56 and 399; V ibid. 49 
and 109; opinion to the Commissioner of Correction, dated January 20, 
1933 (ante, p. 38). 

In my opinion, therefore, it is not necessary for the officials of the 
Department of Conservation to procure an}^ approval of plans for the 
construction or alteration of a dam on property of the Commonwealth 
included in a State forest. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Statutes — Time of Taking Effect. 

July 13, 1933. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir : — In a recent letter you have written me as follows : — 

"Chapter 307 of the Acts of 1933 was passed to be enacted June 29, 
1933. I understand it was forwarded to the Governor at Westfield. On 
the bill appears the approval by the Governor on July 1, 1933. The bill 
was received in the office of the Secretary of the Commonwealth on July 
7. 1933. I am informed by one of the secretaries to the Governor that 
the Governor approved it on July 1st and that it was placed in storage 
in a vault for safe-keeping until its return to me. 

Will you kindly advise me whether this act became effective July 1, 
1933, by approval of the Governor or July 7, 1933, by operation of law\" 

The answer to your question is governed by the terms of Mass. Const., 
pt. 2d, c. I, § 1, art. II, the applicable parts of which read: — 

"No bill or resolve of the senate or house of representatives shall be- 
come a law, and have force as such, until it shall have been laid before 
the governor for his revisal; and if he, upon such revision, approve thereof, 
he shall signify his approbation by signing the same. But if he have any 
objection to the passing of such bill or resolve, he shall return the same, 
together with his objections thereto, in writing, to the senate or house 
of representatives, in whichsoever the same shall have originated; who 
shall enter the objections sent down by the governor, at large, on their 
records, and proceed to reconsider the said bill or resolve. . . . 

And in order to prevent unnecessary delays, if any bill or resolve shall 
not be returned by the governor within five days after it shall have been 
presented, the same shall have the force of a law." 

The bill to which you refer became law and effective as of the date of 
its approval by the Governor, under the facts as you have set them forth. 
The intent of the framers of the Constitution in this regard was to provide 
that a bill passed by the two houses of the Legislature should become a 
law when signed by the Governor unless he returned the same to the 
Legislature unapproved. The second paragraph of said article II was 



68 P.D. 12. 

intended to apply to bills as to which the Governor had not signified his 
approbation by signing within five days of presentation. Seven Hickory 
V. Ellery, 103 U. S. 423. 

Yours very truly, 

Joseph E. Warner, Attorney General. 

Retirement System — Computation of Pension — Employment. 

An employee of the Commonwealth is not to be entitled to be credited 
with the time spent prior to present employment as an assessor for 
a city. 

July 19, 1933. 

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

Dear Sir: — You have asked me in effect as to whether, in computing 
the pension of an employee of the Commonwealth about to be retired at 
the age of seventy, he should be credited with time spent, prior to ap- 
pointment to his present position, as an assessor of taxes for a city. 

My answer is in the negative. An assessor of taxes for a city is a public 
officer of a municipahty; he is not "in the direct service of the Common- 
wealth" so as to be an "employee" of the Commonwealth, as the quoted 
words are used in the Retirement Act [G. L. (Ter. Ed.), c. 32]. That 
such an assessor is a public officer of a municipality is made plain by the 
opinion of the Supreme Judicial Court in Walker v. Cook, 129 Mass. 577, 
and Welch v. Emerson, 206 Mass. 129. It was pointed out by the court 
in the former opinion that an assessor was not a "servant" of a munici- 
pality, but it does not follow from that fact that he is a servant of the 
Commonwealth or in its service, as the word "service" is used in the 
Retirement Act. The court in said opinion points out specifically that 
it is distinguishing between those who are agents or servants of a munici- 
pality and those who are public officers. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Intoxicating Liquors — Licenses — Termination. 

July 24, 1933. 

Hon. William E. Hayes, Chairman, Alcoholic Beverages Control Com- 
mission. 

Dear Sir : — You state that the town of Shelburne at the special 
election of June 13th of this year voted "No" upon the question "Shall 
licenses be granted in this city (or town) for the sale therein of wines and 
malt beverages?" (St. 1933, c. 120, § 18); that prior to that date certain 
licenses had been issued (under the provision of section 19 of said chap- 
ter), such licenses purporting to be for the term of one year, and that 
license fees had been paid therefor. You request my opinion as to whether 
the right of such licensees to sell terminated with the vote of the town of 
June 13th, or whether such right continues for the term stated in the 
Ucenses. 

Section 18 of the statute reads as follows: — 

"The state secretary shall cause to be placed on the oflficial ballot used 
in the cities and towns at each biennial state election the following ques- 



P.D. 12. 69 

tion: — 'Shall licenses be granted in this city (or town) for the sale therein 
of wines and malt beverages?' 

If a majority of the votes cast in a city or town in answer to the question 
are in the affirmative, such city or town shall be taken to have authorized, 
for the two calendar years next succeeding, the sale in such city or town, 
of wines and malt beverages, subject to the provisions of federal law and 
of this act." 

Section 19 provides, in part, that: — 

"Prior to January first, nineteen hundred and thirty-five, and pending 
the taking, in any manner authorized under this act, of the vote in any 
city or town on the question of granting licenses for the sale therein of 
wines and malt beverages, the granting of such licenses and the sale of 
wines and malt beverages under this act shall be authorized therein upon 
the filing with the city or town clerk of an order to that effect by the 
mayor of such city or the selectmen of such town, but not otherwise. . . ." 

It further provides for the taking of a vote in a special election if held 
prior to the next biennial State election ; and that — 

"Any vote on such question taken under this section shall have the 
same legal effect, for the period ending on December thirty-first, nineteen 
hundred and thirty-four, as a vote at a biennial state election under 
section eighteen." 

Section 13 provides, in part, that — 

"All Hcenses and permits, unless otherwise in this act provided, shall 
be for the term of one year from their respective dates of issue, subject, 
however, to cancellation or revocation within such term; . . ." 

Although the statute makes no express provision for the issuance of 
licenses for the indefinite term pending the taking of a vote under section 
19, or for the payment of a special fee for such an indefinite license, yet, 
in my opinion, it is the intent of section 19 that the licenses authorized 
thereunder shall expire upon the taking of a negative vote by a town. 

In my opinion, the licensees in question took their licenses subject to 
such a provision, and they are not now authorized to make sales thereunder. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Department of Public Health — Appeal — Refusal of License. 

July 25, 1933. 
Dr. George H. Bigelow, Commissioner of Public Health. 

Dear Sir : — You request my opinion as to whether upon an appeal to 
the Department of Public Health under section 41 of G. L. (Ter. Ed.), 
c. 94, the department should pass upon the reasonableness and validity 
of a regulation passed by a board of health of such town in a case where 
a license has been refused because of the existence of such regulation. 

Said section 41 is as follows: — 

"An inspector of milk in any town, for the purposes mentioned in the 
preceding section and subject to the regulations established by the board 
of health of such town, may grant licenses to suitable persons, and shall 
receive for each license so granted a fee of fifty cents for the use of such 
town, and all license fees collected by him shall be paid over monthly to 



70 P.D. 12. 

the town treasurer. Such licenses shall remain in force until June first 
following, unless previously suspended or revoked. An inspector of milk 
may declare any license granted by him suspended or forfeited upon a 
conviction of the licensee in any court of the commonwealth for violation 
of his license. If the applicant for a license fails to comply with any regu- 
lation of the board of health of the town where the application is made, 
a license may be refused until he has complied with such regulation; 
and a license granted under this section may be revoked at any time for 
failure to comply with any such regulation. If a license is so refused or 
revoked, an appeal may be taken to the department of public health, 
whose decision shall be final. Every inspector of milk shall annually 
during the month of June, and at any other time upon special request 
of the commissioner of agriculture, furnish to him a list of dealers holding 
licenses for the sale of milk, skimmed milk or cream who purchase the 
same directly from producers in the commonwealth. If any inspector 
revokes such a license or reinstates such a license previously revoked, 
he shall, within ten days after the effective date of such revocation or 
reinstatement, notify said commissioner in writing to that effect." 

A refusal of the license is wrongful if based solely upon an invalid regu- 
lation; and, in my opinion, under the statute in question it is the duty of 
the Department of Public Health, on appeal, to pass upon the validity 
of a regulation if that question is put in issue. 
Yours very truly, 

Joseph E. Warner, Attorney General. 

Veterans' Preference — Division of Smoke Inspection — Additional Service. 

Aug. 22, 1933. 

Hon. Henry C Attwill, Chairman, Department of Public Utilities, and 
Hon. Paul E. Tierney, Commissioner of Civil Service. 

Gentlemen: — You jointly request my opinion as to whether three 
disabled veterans who were appointed inspectors in the Division of Smoke 
Inspection subsequent to the enactment of St. 1930, c. 380, are entitled 
to be retained in preference to three other inspectors who had been em- 
ployed in the smoke inspection work of the department prior to the enact- 
ment of said chapter. 

By St. 1930, c. 380, a Division of Smoke Inspection in the department 
was created to enforce the provisions of St. 1910, c. 651, relative to smoke 
abatement, which were previously enforced by the department, and also 
to perform certain additional duties in relation to the issuance of permits, 
as provided by St. 1930, c. 412. Under said chapter 380 the Commission, 
in addition to those already employed by it in the woi'k of smoke inspec- 
tion, employed certain inspectors to serve in the Division of Smoke In- 
spection, as the Commission was authorized to do under said chapter. 
By chapter 76 of the acts of the present year the Division of Smoke Inspec- 
tion was abolished; chapter 412 of the Acts of 1930, imposing upon the 
division certain duties in addition to the enforcement of the act of 1910, 
was repealed; and it was provided that all functions relative to smoke 
abatement shall be performed by the Commission. In view of the fact 
that the duties of the department under said chapter 76 are less than 
were the duties of the division under chapters 380 and 412 of the Acts 
of 1930 and that the appropriation for smoke abatement made this year 



P.D. 12. 71 

(item 618a of chapter 174) is insufficient to pay all the employees pre- 
viously serving in the Division of Smoke Inspection, the smoke abate- 
ment work of the department under said chapter 76 must be performed 
with a smaller force than that previously serving in the division; and, 
accordingly, the department has notified certain of the employees that 
their services are no longer required. Among those so notified are three 
disabled veterans, employed by the Commission since the enactment of 
chapter 380 of the Acts of 1930, who contend that they are entitled to 
be retained in employment by virtue of the provisions of G. L., c. 31, 
§ 23, which provides that "A disabled veteran shall be appointed and 
employed in preference to all other persons, including veterans." 

In an opinion rendered March 29, 1930, to the Commissioner of Civil 
Service (Attorney General's Report, 1930, p. 69) I ruled that the above 
quoted provision of section 23 applied to continuation in employment as 
well as to original selection. Accordingly, it is my opinion that the three 
disabled veterans to whom you refer are entitled to be retained in preference 
to others engaged in the same class of work. 
Very truly 3'ours, 

Joseph E. Warner, Attorney General. 

Labor — Hours of Work — Authority of Commissioner of Labor and In- 
dustries. 

Aug. 24, 1933. 

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

Dear Sir: — You state that the Metropolitan District Water Supply 
Commission, having awarded a certain construction contract under St. 
1926, c. 375, requested the Commissioner of Labor and Industries that 
the contractor be allowed to employ labor for more than eight hours a 
day and more than forty-eight hours a week, this request being made in 
accordance with section 2 of said chapter, which provides, in part, that — 

"In contracts entered into by the commission for the construction of 
the works herein authorized, there may be inserted a provision that the 
commission or any contractor or sub-contractor for the commission may 
employ laborers, workmen and mechanics for more than eight hours 
in any one day and for more than forty-eight hours in any one week in 
such construction, when, in the opinion of the commissioner of labor and 
industries, public necessity so requires ..." 

You also state that in answer to said request the then Acting Commis- 
sioner of Labor and Industries wrote the Metropolitan District Water 
Supply Commission that — 

"It is my opinion as Acting Commissioner of Labor and Industries that 
public necessity requires that such construction be carried forward as 
rapidly as possible and in compliance with chapter 375 of the Acts of 
1926 and of chapter 321 of the Acts of 1927, I hereby approve the employ- 
ment of laborers, workmen and mechanics for more than eight hours a 
day and more than forty-eight hours in any one week on such construc- 
tion." 

The contract in question contains the following provision : — 

"No laborer, workman or mechanic working within this Common- 
wealth in the employ of the Contractor, subcontractor or other person 



72 P.D. 12. 

doing or contracting to do the whole or a part of the work contemplated 
by the contract shall be required or permitted to work more than eight 
hours in any one day or more than forty-eight hours in any one week, 
except in cases of extraordinary emergency. However, the Commission 
or the Contractor or any subcontractor contracting to do the whole or a 
part of the work contemplated by the contract may employ laborers, 
workmen and mechanics for more than eight hours in any one day and 
for more than forty-eight hours in any one week when, in the opinion of 
the commissioner of labor and industries, public necessity so requires." 

You request my opinion as to whether it is "within the power of the 
Commissioner of Labor and Industries to revoke the permission given 
this concern, if it appears to him that a 'public necessity' no longer exists 
requiring operation by this concern more than eight hours a day and 
forty-eight hours in the week." 

In my opinion, under the statutory provision above quoted the question 
of public necessity remains open at all times during the performance of 
the contract, and if the Commissioner is of the opinion at any time that 
no public necessity exists he has authority to terminate the permission 
previously given. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



irar of Motor Vehicles — Suspension of License — Bankruptcy. 

Discharge in bankruptcy is not of itself sufficient to require the Registrar 
to restore a license suspended under the provisions of G. L., c. 90, 
§22A. 

Aug. 25, 1933. 

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

Dear Sir: — You request my opinion as to whether under St. 1932, 
c. 304 (G. L., c. 90, § 22A), the Registrar of Motor Vehicles, who has in 
accordance with said section suspended a license to operate because the 
licensee has failed to satisfy in full a judgment against him in an action 
for property damage, is authorized to terminate such suspension or renew 
the license upon a discharge in bankruptcy obtained by such licensee. 
Said section provides that a suspension of a license thereunder shall not 
be terminated or the license renewed until the Registrar is satisfied that 
''said judgment has been fully satisfied or the judgment creditor has 
released or discharged the judgment debt." 

It cannot be said in this case that "the judgment creditor has released 
or discharged the judgment debt." The only question is whether through 
a discharge in bankruptcy a "judgment has been fully satisfied" within 
the meaning of these words as used in this statute. In my opinion, the 
judgment is not "fully satisfied" within the words of this statute by a 
discharge in bankruptcy. To rule otherwise would, I think, involve 
giving these words an unusual meaning. If suit were brought upon the 
judgment, plea in defence would be discharge in bankruptcy, not judg- 
ment satisfied. Also it is to be noted that the words "fully satisfied" are 
used in alternative clauses in the statute with the words "released or 
discharged," and thus apparently are differentiated. Moreover, to rule 
otherwise would, I think, be contrary to the spirit and intent of the statute. 



P.D. 12. 73 

An operator who is willing but unable to pay a judgment cannot have his 

license restored. Bankruptcy proceedings should not change the result. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

State Forests — Timber Production — Recreation. 

Aug. 29, 1933. 
Hon. Samuel A. York, Commissioner of Conservation. 

Dear Sir: — You request my opinion as to whether certain portions 
of the lands required for State forests under St. 1914, c. 720, St. 1920, 
c. 606, and G. L., c. 132, §§ 30 and 33, may be administered for "recrea- 
tion rather than strictly for timber production" or whether new legislation 
is necessary to authorize such procedure. 

In my opinion, legislation is necessary. The statutes under which the 
lands were acquired provide that they shall be used for forest cultivation, 
and contain no authority to use them for another purpose. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Marriage — Prohibition — Adopted Son. 

Sept. 13, 1933. 

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

Dear Sir: — You have written me as follows: — 

"Will you kindly give me your opinion as to whether, under the statutes, 
an adopted son is prohibited from marrying the daughter of his adoptive 
father when no degree of consanguinity exists." 

I am of the opinion that there is no prohibition under our statutes of a 
marriage such as you describe. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Division of Child Guardianship — Consent to Schick Test. 

Sept. 25, 1933. 
Hon. Richard K. Conant, Commissioner of Public Welfare. 

Dear Sir: — You have requested my opinion as to whether the Divi- 
sion of Child Guardianship can legally give consent for a Schick test and 
the toxin-antitoxin treatments for diphtheria to be given to minors, under 
its charge for various causes. 

In any instance where the "custody" of a minor has been properly 
vested in your department or in said division by a court of competent 
jurisdiction, your department or said division, if so authorized by the 
Commissioner, may properly, under justifying circumstances, give con- 
sent for such a test or treatments as you have mentioned for such a minor, 
and such consent should be sufficient for the purposes of the State Depart- 
ment of Pubhc Health. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



74 P.D. 12. 

Town — Assumption of Liability — Public Work. 

Oct. 9, 1933. 
Hon. Frank E. Lyman, Commissioner of Public Works. 

Dear Sir: — I am in receipt from you of the following communica- 
tion: — 

"The Department of Public Works encloses copies of a vote passed by 
the Town of Hull at a meeting held September 21, 1933, accepting the 
provisions of chapter 330 of the Acts of 1933, and a letter from the 
town counsel under date of October 4, and of an agreement executed by 
the selectmen to indemnify the Commonwealth against damages which 
may be caused by the work authorized by the statute. A copy of the 
statute is also enclosed. 

In similar cases, it has been the custom of the department to require a 
special vote at the town meeting assuming liability for damages and 
authorizing the selectmen to execute an indemnity bond. The Commis- 
sioners will much appreciate the receipt of an opinion from you as to 
whether the vote of the Town of Hull on September 21, covers the require- 
ments of the statute and is sufficient authorization for the bond of in- 
demnity executed by the selectmen." 

St. 1933, c. 330, in its apphcable part, provides : — 

"Section 1. Subject to the conditions herein imposed, the department 
of public works is hereby authorized and directed to place riprap for the 
purpose of protecting the shore at Stony Beach in the town of Hull from 
erosion by the sea. No work shall be begun until the town of Hull has 
assumed liability, in the manner provided by section twenty-nine of 
chapter ninety-one of the General Laws, for all damages that may be 
incurred hereunder, ..." 

The vote taken by the town of Hull, a copy of which you have trans- 
mitted to me, accepted the provisions of said chapter 330 and appro- 
priated the sum of $4,000 for such work, as required by other provisions 
of the said chapter 330, which I have not quoted. Said vote did not 
contain any words expressing any assumption of liability. 

G. L. (Ter. Ed.), c. 91, § 29, referred to in said chapter 330, reads as 
follows : — 

"A town may appropriate money for the improvement of rivers, har- 
bors, tide waters and foreshores within its jurisdiction, and the money so 
appropriated shall be paid to the state treasurer and be expended by the 
department for said purposes within the limits of such town; and the 
town may also assume liability for all damages to property suffered by 
any person by any taking of land, or of any right, interest or easement 
therein, within the town made by said department for the purposes here- 
inbefore authorized." 

The vote passed by the town as aforesaid does not indicate that the 
town of Hull "has assumed liability, in the manner provided by section 
twenty-nine of chapter ninety-one of the General Laws, for all damages 
that may be incurred," as provided as a condition precedent to the be- 
ginning of work by the Department of Public Works under the terms of 
chapter 330. An acceptance of said chapter 330 and an appropriation 
of money for its purposes do not necessarily include an assumption of 
liability for damages that may be incurred in pursuing the work pro- 



P.D. 12. 75 

vided for by said chapter. A specific assumption of liability in a vote 
of the town is contemplated by the wording of chapter 330, and such 
assumption has not yet, under the facts as you have set them forth, been 
made by the town. In the absence of such a vote there is no sufficient 
authorization from the town for the bond of indemnity executed by the 
selectmen, to which you refer in your communication. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Trustees — Funds — School. 

The board of trustees of a textile school may not delegate its powers to 

a bank. 

Oct. 9, 1933. 

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

Dear Sir: — You have written me as follows: — 

"In connection with the work of this office, an audit is being made of 
the accounts of the Bradford Durfee Textile School in Fall River, and 
during the progress of this work it was found that the trustees of this 
school have delegated certain of their powers in connection with trust 
funds, endowments, etc., to the B. M. C. Durfee Trust Company of Fall 
River. 

A copy of the agreement between the board of trustees and the bank 
is enclosed. 

In this respect, I respectfully ask whether or not the board of trustees 
has in its powers the right to enter into an agreement such as this." 

The trustees of the Bradford Durfee Textile School are appointed under 
the provisions of G. L. (Ter. Ed.), c. 15, § 21. Their duties are outlined 
in G. L. (Ter. Ed.), c. 74, §§ 42-46A. By section 43 the Board of Trustees 
of the Bradford Durfee Textile School is created "a corporation for the 
purpose of taking by gift, bequest or devise any real or personal property." 

With relation to trust funds, whether held by members or by a corpor- 
ation composed of individuals, every member is — 

"charged with the obligations of a trustee and must exercise as to every 
investment his best judgment and wise discretion. To make investments 
is fundamental, not merely administrative, in the administration of a 
trust. To be a manager of the fund involves the performance of personal 
duty, which as to investments to be made cannot be delegated to a com- 
mittee or an agent. In general the duties of a trustee cannot be dele- 
gated. They are personal. Determination to make an investment does 
not necessarily require the affirmative vote of all members of the cor- 
poration but it requires action by a majority with opportunitj^ and obli- 
gation, so far as reasonably practicable, for all to express their judgments." 

The above-quoted language, used by the Supreme Judicial Court in 
Boston V. Curley, 276 Mass. 562, indicates the nature of the duties of 
trustees who have been made a body politic. The general principles of 
our law require that such duties shall be discharged by trustees in any 
instance. While mere ministerial duties may at times be delegated, the 
outstanding duties of trustees, which require the exercise of judgment 
and discretion, including the investment of the trust funds and their 
safekeeping and administration in accordance with the provisions creat- 



76 P.D. 12. 

ing the trusts, cannot be so delegated. The agreement between the board 
of trustees of said school and the bank indicates such a delegation on 
the part of the trustees of the said school as is inconsistent with the per- 
formance of their duties as trustees. 

I am not advised as to the precise nature of the deeds of trust which 
established the various separate trust funds which are referred to in the 
said agreement, but they are referred to in said agreement as "funds . . . 
donated ... in trust for the use of the school and/or for the benefit of 
the students of the school." 

The general principles which I have outlined can scarcely fail to be 
apphcable to such trust funds in regard to the impropriety and invahdity 
of a delegation of essential powers of management and control of such 
funds by the trustees; and the agreement which you have sent me in 
relation to trust funds mentioned therein includes, among certain in- 
nocuous provisions, other provisions for the delegation of powers which 
should be administered by the trustees directly, and an abandonment 
of the immediate control of the investments of the trust funds, which at 
all times ought to be the direct business of the trustees, and any cor- 
porate body of which they may be a part, and are not proper subjects 
for delegation to a trust company in the manner provided in the said 
agreement. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Use of Public Money — Charitable Institutions. 

Mass. Const. Amend. XL VI prohibits the use of public money so that 
city water may not be furnished free of charge to certain described 
institutions. 

Oct. 13, 1933. 

Fall River Board of Finance. 

Gentlemen: — You have asked my opinion as to the constitutionality 
of section 4 of an ordinance of the city of Fall River, enacted November 
5, 1929, as amended September 27, 1932, and of a proposed amendment 
to said section 4 introduced into the city council September 26, 1933. 

I assume the fact to be that the charitable institutions mentioned in 
said section 4, as amended, are not publicly owned and under the e.xclusive 
control, order and superintendence of public officers or public agents 
authorized by the Commonwealth or Federal authority, or both, and that 
the schools described in the proposed amendment are schools wherein 
some denominational doctrine is inculcated, as well as (which appears 
from the words of the proposed amendment itself) not likewise so publicly 
owned and controlled. 

Said section 4, as amended, and the proposed amendment thereto 
require that the said institutions and schools "shall receive their supply 
of city water free of charge." 

Such provisions are beneficent in character, but the Mass. Const. 
Amend. XLVI, § 2, provides, in part: — 

". . . no grant, appropriation or use of public money or property or 
loan of public credit shall be made or authorized by the commonwealth 
or any political division thereof for the purpose of founding, maintaining 
or aiding any school or institution of learning whether under public con- 
trol or otherwise, wherein any denominational doctrine is inculcated, or 



P.D. 12. 77 

any other school, or any college, infirmary, hospital, institution, or edu- 
cational, charitable or religious undertaking which is not pubhcly owned 
and under the exclusive control, order and superintendence of public 
officers or public agents authorized by the commonwealth or federal 
authority or both, ..." 

These provisions, therefore, by express words forbid the use of public 
money for the purpose of aiding any school w^herein any denominational 
doctrine is inculcated or of aiding any charitable institution which is not 
publicly owned and under the exclusive control of public officers, either 
of Massachusetts or of the United States, or of both. 

I am obliged to advise you that if the charitable institutions recited in 
section 4 of the ordinance, as amended, are not publicly owned and are 
not under the exclusive control of such public officers, and that as the 
parochial schools are described, in the amendment, to be schools main- 
tained at private, not pubHc, expense, Mass. Const. Amend. XLVI forbids 
the use of any public money for aiding them; and consequently, that 
section 4 of the ordinance and the amendment contravene the Constitu- 
tion of Massachusetts. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Boston Elevated Railway — Legislative Authority. 

Oct. 28, 1933. 

Special Committee on Investigation of Certain Questions relating to the Boston 
Elevated Railway Company. 

Gentlemen: — You request my opinion upon the following questions: — 

''1. In the event of the acquisition of the properties of the Boston Ele- 
vated Railway Company by the Commonwealth or by the Boston Metro- 
politan District, either by eminent domain or under the option granted 
by St. 1931, c. 333, § 17, may the Legislature provide for the management 
and operation of such properties so as to ensure, for a certain period of 
time, immunity from legislative changes? 

2. If your answer to Question 1 is in the affirmative, in what manner 
may the Legislature so provide for the management and operation of 
such properties? 

3. In the event that said district acquires such properties as aforesaid 
under authority of legislation in which it is declared that the district 
shall have, hold and enjoy the same in its private or proprietary capacity 
for its own property and in which the terms and conditions of such man- 
agement and operation are defined, — would legislation thereafter enacted 
relative to such properties or their management or operation be effective 
without the consent of the district? 

4. If your answer to Question 3 is in the affirmative, to what extent 
may such properties or their management or operation be affected by 
such legislation, without the consent of the district? 

5. In the event that legislation is enacted establishing a board to have 
the management and operation of properties to be so acquired by said 
district and defining the terms and conditions of such management and 
operation, authorizing the issue of bonds and notes by the district to 
provide funds for such acquisition and providing that such legislation 
shall be incorporated by reference in the terms and conditions of such 



78 P.D. 12. 

bonds and notes and shall constitute an essential part of the contract or 
agreement of the district with the holders thereof and providing further 
that until all of said bonds and notes, together with interest thereon, 
shall have been paid in full, or a sum sufficient for such payment shall 
have been set aside and deposited in trust therefor, the composition of 
the board or the method of appointment or terms of its members shall 
not be changed by abolition of the board or otherwise, — would the 
Legislature be barred from making any such change until after such 
payment or provision for payment? 

6. In the event that legislation is enacted establishing a board to have 
the management and operation of properties to be so acquired by said 
district and defining the terms and conditions of such management and 
operation, authorizing the issue of bonds and notes by the district to 
provide funds for such acquisition and providing that such legislation 
shall be incorporated by reference in the terms and conditions of such 
bonds and notes and shall constitute an essential part of the contract or 
agreement of the district with the holders thereof and providing further 
that until all of said bonds and notes, together with interest thereon, shall 
have been paid in full, or a sum sufficient for such payment shall have 
been set aside and deposited in trust therefor, the powers and duties of 
the board shall not be diminished or abrogated except upon its petition 
or with its approval, — would the Legislature be barred from diminish- 
ing or abrogating any such power or duty except as aforesaid until after 
such payment or provision for payment? 

7. What would your answer be to Question 5 and Question 6 if there 
were incorporated in the legislation referred to therein a provision that 
the district shall have, hold and enjoy the properties to be acquired, in 
its private or proprietary capacity for its own property?" 

Leaving aside any element of impairment of contracts, such as you 
have inserted in your fifth and sLxth questions, and which I assume you 
intended to eliminate from the preceding questions, I answer your first 
question in the negative. In the event of the railway propertj^ becoming 
public property, its management is a matter for the Legislature from 
time to time to determine in the light of the then existing conditions. 

I answer your third question in the affirmative. In my opinion, the 
insertion of a provision that the district shall hold the property in its 
private or proprietary capacity would not affect the power of the Legis- 
lature to alter the provisions as to its management and control. The 
property would still be held for public use. See Higginson v. Treasurer, 
212 Mass. 583, 585; Boston v. Treasurer, 237 Mass. 403, 418. In any 
event a legislative change in the provisions as to the management and 
control of the property would not, in my opinion, deprive the district of 
its property in such sense as to put the matter beyond legislative control. 
See Broadhurst v. Fall River, 278 Mass. 167, 171. 

As to your fourth question, it is impossible for me to attempt to define 
the limits, if any, which might conceivably exist as to the power of the 
Legislature in the premises. Generally speaking, the power of the Legis- 
lature to alter the provisions as to management and control would, in 
my opinion, be very broad. 

I answer your fifth question in the affirmative. It is within the power 
of the Legislature in connection with the public acquisition of the prop- 
erty to contract, or to authorize the district as a governmental instru- 
mentality to contract, with those who loan funds for the acquisition of 



P.D. 12. 79 

the property as to its management and control pending the payment of 
the loans; and such contracts having been made, the Legislature cannot 
impair them. See Opinion of the Justices, 190 Mass. 605; ibid, 261 Mass. 
523, 552. 

I answer your sixth question in the affirmative upon the ground above 
stated. 

My answer to your fifth and sixth questions would not be changed by 
the insertion of the provision referred to in your seventh question. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Cities and Towns — Public Works Projects — Water Supply. 

St. 1933, c. 366, does not of itself give authority to a political subdivision 
to exercise an authority specifically reserved to the Legislature. 

Nov. 1, 1933. 

Joseph W. Bartlett, Esq., Chairman, Emergency Finance Board. 

Dear Sir: — Your recent communication requests my opinion upon 
the following question : — 

''The town of Sudbury desires to install a water installation system. 
There is no special Sudbury act authorizing the installation of such a 
system. Were we inclined to approve such a project, has Sudbury the 
right under existing law to install such a system?" 

I have also received a communication from Theodore N. Waddell, 
Secretary of the Emergency Finance Board, in which he states: — 

"Supplementing the letter of September 20th from Mr. Bartlett, Chair- 
man of the Emergency Finance Board, in regard to the right of the town 
of Sudbury to install a water supply system, I would state that the town 
early in July appointed a committee to conduct an investigation relative 
to installing a water system. From the information we have, it does not 
appear that there is any special act authorizing the town to install such 
a system or an act establishing a water district. 

The real inquiry of the Emergency Finance Board is whether or not 
chapter 366 of the Acts of 1933 gives us the power to grant enabhng 
authorit}' to the town for a water supply, or for the establishing of a 
water district, or to approve loans under chapter 366 of the Acts of 1933." 

The primary and only purpose of St. 1933, c. 366, as expressed in the 
emergency preamble thereto, is "to alleviate promptly conditions of 
widespread unemployment," and that statute enables "cities and towns 
and fire, water, light and improvement districts to secure the benefits 
provided by the National Industrial Recovery Act" passed by the Con- 
gress of the United States as a step toward the economic rehabilitation 
and stability of the nation. 

By section 2 of said St. 1933, c. 366, authority is conferred upon cities, 
towns and other political subdivisions specifically referred to in the title 
to "engage in any public works project included in any 'comprehensive 
program of public works' prepared under section two hundred and two 
of Title II of the National Industrial Recovery Act, but only in case such 
project is approved" by the Emergency Finance Board, as established by 
section 1, and the Governor; "and in case the proper federal authorities 



80 P.D. 12. 

have obligated the federal government to make a grant therefor of federal 
money under section two hundred and three of said title." 

In my opinion, so much of said section 2 as enables cities and towns 
"to engage in any public works project included in any 'comprehensive 
program of public works' " does not confer new or additional powers 
upon municipalities. That language must be construed in the light of 
the inherent and the general or special powers heretofore granted to munici- 
paHties or other political subdivisions to engage in public works or under- 
takings. Municipalities may not engage in any public works project 
unless such power is in force and effect at the time approval of the project 
is sought, notwithstanding anything included in said "comprehensive 
program of pubhc works" beyond such power. 

The powers and duties of the Emergency Finance Board are specifically 
defined: — 

1. To approve a project, provided it shall determine, amongst other 
things — 

(a) The necessity of the project. 

(b) The ability to finance such project. 

(c) The extent to which unemployment shall be relieved by carrying 
on the project. 

(d) The extent to which maintenance of the project, when completed, 
will increase or decrease annual expenditures and increase or decrease the 
tax burden. 

2. If approval is given to — 

(a) Establish "terms, conditions, rules and regulations, not incon- 
sistent with applicable federal laws and regulations, with the approval 
of the governor, to ensure the proper execution of such projects." 

(6) "Fix the terms of and rates of interest on the bonds, notes and 
other forms of written acknowledgment of debt issued hereunder in 
accordance with the applicable federal laws and regulations and subject 
to the approval of the proper federal authorities . . ." ^ 

The main function of the Board is to give approval to projects, without 
which approval such projects may not be undertaken. The word "ap- 
proval" has been judicially defined in Sirn-pson v. Marlborough, 2.36 Mass. 
210, 214, as follows: — 

"Approval implies favorable conviction manifested by affirmation con- 
cerning a specific matter submitted for decision. It does not import 
initiative. Approval ordinarily indicates the will to assent to an act 
done by someone else rather than the doing of that act. See, however, 
Clarke v. Fall River, 219 Mass. 580. It signifies the apphcation of sound 
judgment to a proposition emanating from another source and submitted 
for investigation. It requires the exercise of faculties of criticism and 
discrimination. It denotes positive sanction. It does not mean original 
and inventive construction in the first instance. On the other hand, it 
is not a mere perfunctory act. It imposes no mean responsibility. It 
carries power and duty of an effective nature. It is the word used in both 
the State and Federal Constitutions, in the charters of many cities and 
in R. L. c. 26, § 9, to describe the assent required by the chief executive 
before acts of the legislative department become operative. GalUgan v. 
Leonard, 204 Mass. 202. McLean v. Holyoke, 216 Mass. 62." 

Your Board is not invested with any powers other than those specifi- 
cally enumerated in the act (St. 1933, c. 366). Surely there is nothing 



P.D. 12. 81 

in that act which confers upon your Board, directly or by implication, 
such extraordinary power as to "grant enabling authority to the town 
for a water supply, or for the establishing of a water district." It would 
require pretty plain language to hold that the Legislature intended to 
empower your Board to grant authority to a political subdivision of the 
Commonwealth to exercise powers the granting of which it has, from the 
very inception of State government, reserved to itself, and to constitute 
and establish political subdivisions such as water districts. 

If we assume that no special legislation has ever been passed enabling 
the town of Sudbury to establish a water supply — and you state that 
from information which you have there is none — the town can establish 
a water supply system in the manner authorized b}- G. L. (Ter. Ed.), 
c. 40, § 38, which provides as follows : — 

"A town, by the action of its selectmen, ratified by a majority of its 
voters present and voting thereon at a town meeting at which the voting 
list shall be used, or a city, by two thirds vote of its city council, ratified 
by a majority of the voters thereof at an election called therefor, may, 
for the purpose of supplying water to its inhabitants, purchase of any 
municipal or other corporation the right to take water from its sources 
of supply or from its pipes; or may purchase its whole water rights, 
estates, franchises and privileges, and thereby become entitled to all its 
rights and privileges and subject to all its duties and liabilities; or may 
contract therewith for a suppty of water. All purchase money received 
under this section by a town owing a water debt shall be applied to the 
payment thereof." 

In that case, the town of Sudbury may incur indebtedness outside the 
debt limit, as provided in G. L. (Ter. Ed.), c. 44, § 8, cl. (3), which is as 
follows : — 

"Cities and towns may incur debt, outside the limit of indebtedness 
prescribed in section ten, for the following purposes and payable within 
the periods hereinafter specified : 

(3) For establishing or purchasing a system for supplying the inhabit- 
ants of a city or town with water, for the purchase of land for the pro- 
tection of a water system, or for acquiring water rights, thirty years." 

The statutes above quoted were originally enacted by St. 1870, c. 93. 
In discussing said St. 1870, c. 93 (Pub. St. c. 27, §§ 27 and 28), the Supreme 
Judicial Court, in its decision in S7nith v. Dedham, 144 Mass. 177, 178, 
said : — 

"These sections relate to supplying the inhabitants of a town with 
water, which does not come within the corporate powers of towns, and 
must be done by authority of statute. Under it, towns can supply water 
to their inhabitants for all purposes, mechanical, fire, and domestic, in 
the manner pointed out by the statute. To supply water to the inhabit- 
ants of a town means water for all uses for which it may legally be sup- 
plied, and not necessarily for the purpose of extinguishing fires. This 
statute makes provisions for purchasing rights to supply pure water to 
the inhabitants, for which the town may issue bonds in payment ..." 

But if the town of Sudbury proposes to obtain its water supply in any 
manner other than that stated above, such as, for instance, "to take 



82 p.D. 12. 

water for a water supply/' it is my opinion that it may not do so without 
specific legislative authority, and it must comply with the provisions of 
G. L. (Ter. Ed.), c. 3, § 5, to obtain such authority. 
Very tmly yours, 

Joseph E. Warner, Attorney General. 

Municipal Employees — Leaves of Absence — Separation from the Service. 

Nov. 9, 1933. 
Hon. James M. Hurley, Commissioner of Civil Service. 

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

"As to whether employees who are granted temporary leaves of absence 
with or without pay, for periods of one month or more, for reasons other 
than sickness, are to be regarded as separated from the service, and whether 
their reinstatement shall be subject to the provisions of G. L., c. 31, § 460, 
requiring my approval after hearing and also the approval of the city 
council of a city by vote. 

Also, as to whether the reinstatement of an employee who is absent as 
the result of an injury causing him pain and sickness and occurring while 
in the performance of his duty, and compensated on the injury roll under 
the Workmen's Compensation Act, during his absence, comes under the 
provisions of section 46C or 46D of the chapter (G. L., c. 31, as amended 
by St. 1933, c. 320)." 

It is impossible for me to answer your first question without all the 
facts being presented. The Supreme Court has said that the question 
of what period of absence shall constitute separation from the service 
"is left to be ascertained from all the material circumstances in each 
case as controversy may arise." Dunn v. Commissioner of Civil Service, 
279 Mass. 504, 509. 

As to your second question, it is my opinion that, assuming a separation 
from the service has occurred, such separation is "by reason of inability 
to work on account of sickness," within the meaning of section 46D of the 
statute, and that reinstatement may be made under that section. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Representative — Incompatihle Office. 

The office of deputy collector of internal revenue of the United States 
is incompatible with that of member of the House of Representatives 
of this Commonwealth. 

Nov. 14, 1933. 

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

Dear Sir: — I have received from you the following communication: — 

"The House Committee on Rules requests your opinion as to whether 
or not a member of the House of Representatives of this Commonwealth, 
elected for the political years 1933-1934, who was recently appointed a 
deputy collector of internal revenue of the United States, has a right to 
retain his seat as representative. 

In connection with the foregoing question the said committee desires 
to call to your attention VI Op. Atty. Gen. 358, and also Reports of Con- 
troverted Elections, 1780-1852 (Ed. 1853), pages 235 and 251. 



P.D. 12. 83 

Please see article VIII of the Amendments to the Constitution." 

The pertinent portion of Mass. Const. Amend. VIII provides as fol- 
lows : — 

"No judge of any court of this commonwealth, (except the court of 
sessions,) and no person holding any office under the authority of the 
United States, (postmasters excepted,) shall, at the same time, hold the 
office of governor, lieutenant-governor, or councillor, or have a seat in 
the senate or house of representatives of this commonwealth; ..." 

The relation of the office of deputy collector of internal revenue of the 
United States with the office of representative to the General Court was 
considered and passed upon by one of my predecessors in office in an 
opinion which you mention in your letter. VI Op. Atty. Gen. 358. I am 
entirely in accord with said opinion and it seems to govern the instant 
matter, so that it appears as a matter of law that the said deputy col- 
lector is a person holding an office under the authority of the United 
States, within the meaning of Mass. Const. Amend. VIII, and therefore 
holds an office incompatible with that of member of the House of Repre- 
sentatives. 

As was said by my predecessor in office : — 

"It seems that the acceptance of this Federal office does not in and of 
itself vacate the office of representative. The amendment provides that 
'the acceptance of such trust, by any of the officers aforesaid, shall be 
deemed and taken to be a resignation of his said office.'" 

In the present case the House may properly accept the "resignation" 
or declare the seat vacated, provided the representative who has been 
appointed a deputy collector has qualified as such. 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Constitutional Law — Representative — Incompatible Office. 

The receiver of a national bank holds an office incompatible with that 
of member of the House of Representatives of this Commonwealth. 

Nov. 14, 1933. 

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

Dear Sir : — I am in receipt from you of the following communica- 
tion : — 

"The House Committee on Rules requests your opinion as to whether 
or not a member of the House of Representatives of this Commonwealth, 
elected for the political years 1933-1934, who was recently appointed 
receiver of a national bank, has a right to retain his seat as representative. 
See article VIII of the Amendments to the Constitution." 

I am of the opinion that a member of the House of Representatives of 
this Commonwealth who was appointed receiver of a national bank, if he 
still retains such post, has no right as a matter of law to retain his seat 
in such body. 

Mass. Const. Amend. VIII, in its applicable part, provides: — 

"No judge of any court of this commonwealth, (except the court of 
sessions,) and no person holding any office under the authority of the 



84 P.D. 12. 

United States, (postmasters excepted,) shall, at the same tmie, hold the 
office of governor, lieutenant-governor, or councillor, or have a seat in 
the senate or house of representatives of this commonwealth; ..." 

Although the position of receiver under appointment of a State court 
has in some instances been said not to be an "office," since such position 
in the particular instances was the mere agency of a court alone and not 
of the sovereign power, yet it is the established law that the receiver of a 
national bank, who is appointed, not by a court but by the Comptroller 
of the Currency under the Federal statutes of the United States, holds 
an office under the authority of the United States. In re Chetwood, 165 
U. S. 443, and cases there collected; Auten v. United States National Bank, 
174 U. S. 125, 141; Gibson v. Peters, 150 U. S. 342; Baird v. Lefor, 52 
N. D. 155, and cases there collected; Price v. Abbott, 17 Fed. 506. 

It was the intention of the framers of Mass. Const. Amend. VIII to 
cover a deficiency which existed by reason of the lack of a definite state- 
ment as to what constituted incompatibility of offices, and the following 
language used by the framers of the amendment, "No person holding any 
office under the authorit}'^ of the United States," marks an intention to 
exclude all holders of offices of every character who were under the authority 
of the United States, irrespective of the magnitude or nature of the office, 
so long as it was a true office, with the single exception of those who held 
the office of postmaster. No other exceptions were indicated. 

In view of the fact that it has been repeatedly decided that the receiver 
of a national bank is an officer of the United States — that is, one holding 
a public office — it would seem plain that such an officer falls within the 
terms of our Constitution in respect to the incompatibility of State legis- 
lative office with that of office holding under the authority of the United 
States. 

The House is of course the judge of the qualifications of its own mem- 
bers. The acceptance and qualification as the holder of a Federal office 
by a representative of the General Court may be treated and acted upon 
by the House at its pleasure, so as to cause a vacancy in the seat of the 
person holding such office. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Insurance — Motor Vehicles — United States Reservations. 

The owner of an automobile regularly garaged in a United States reser- 
vation should pay a premium charge asked for a "car regularly 
garaged outside the State" in Territory XXII. 

Nov. 20, 1933. 

Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir : — You have addressed to me the following communica- 
tion : — 

"Certain automobiles which require insurance under the compulsory 
law are owned by residents of the Navy Yard and the U. S. Naval Hos- 
pital Reservation at Chelsea, and are principally garaged in these two 
places, respectively, which are known as Territories III and I in the classi- 
fications of risks and schedules of premium charges set up by me for the 
coming year. The reservations where these automobiles are principally 
garaged are within the exclusive jurisdiction of the United States. 



P.D. 12. 85 

On page 19 of the Massachusetts Automobile Manual it is provided 
that: — 

'Unless otherwise provided in this Manual any car regularly garaged 
outside of the State and owned by a resident of the State of Massachusetts, 
or by a non-resident . . . shall be charged the rate for Territory 22 for 
statutory coverage.' 

The question is before me for decision as to whether these automobiles 
owned and garaged as aforesaid, at the Navy Yard in Boston, and at the 
Naval Hospital in Chelsea, are to be charged the premium charges for 
Territories III and I, respectively, or whether they must as a matter of 
law be said to be garaged outside of Massachusetts and so should pay a 
premium charge corresponding to that for private passenger automobiles, 
of which type they are, in Territory XXII. 

I respectfully request your opinion upon the question of law raised by 
the above query." 

Inasmuch as you advise me that the motor vehicles under consideration 
are principally garaged at the U. S. Naval Hospital at Chelsea, and at the 
U. S. Navy Yard at Charlestown, respectively, places which are within 
the exclusive jurisdiction of the United States, they must each be con- 
sidered as falling within the meaning of a "car regularly garaged outside 
of the State," as those words are used in the mles promulgated by you 
with relation to the rates and classifications of compulsory motor vehicle 
liability insurance and set forth above in your reference to page 19 of the 
Massachusetts Automobile Manual. 

In an opinion given by me to His Excellency the Governor on March 
14, 1933 {ante, p. 45), I stated that automobiles which were customarily 
kept on reservations under the exclusive jurisdiction of the United States 
were not subject to an excise tax, which by the terms of the applicable 
statute was to be assessed and levied "on each motor vehicle customarily 
kept within the Commonwealth," because such automobiles kept on such 
reservations could not be said to be kept "within the Commonwealth," 
as those words were used in the applicable statute [G. L. (Ter. Ed.), 
c. 60A, § 1]. 

The considerations which caused me to give the foregoing opinion like- 
wise constrain me to advise you that under the said rule made by you 
as aforesaid each of these cars should be charged the rate set up by you 
in any j^ear for "a car regularly garaged outside the State," 
Very truly yours, 

Joseph E. Warner, Attorney General. 

Hours of Labor — Women — Seasonal Manufacturing. 

G. L., c. 149, § 56, gives the Department of Labor and Industries no 
authority to modify the provision for a nine-hour day. 

Nov. 21, 1933. 

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

Dear Sir: — You request my opinion as to whether section 56 of G. L., 
c. 149, "intends to give the Department of Labor and Industries authority 
to permit women to work more than nine hours a day in manufacturing 
operations which it may declare seasonal, or whether its authority and 
the intent of the statute merely extend to the provision in regard to the 
total weekly hours." 



86 P.D. 12. 

Said section 56, so far as material, reads as follows : — 

"No child and no woman shall be employed in laboring in any factory 
or workshop, or in any manufacturing, mercantile, mechanical establish- 
ment, telegraph office or telephone exchange, or by any express or trans- 
portation company, or in any laundry, hotel, manicuring or hair dressing 
establishment, motion picture theatre, or as an elevator operator, or as a 
switchboard operator in a private exchange, more than nine hours in any 
one day except that hotel employees who are not employed in a manu- 
facturing, mercantile or mechanical estabhshment connected with a hotel 
may be employed more than nine hours but not more than ten hours 
in any one day; and in no case shall the hours of labor exceed forty-eight 
in a week, except that in manufacturing establishments where the em- 
ployment is determined by the department to be by seasons, the number 
of such hours in any week may exceed forty-eight, but not fifty-two, 
provided that the total number of such hours in any year shall not exceed 
an average of forty-eight hours a week for the whole year, excluding 
Sundays and holidays; ..." 

In my opinion, the statute gives the department no authority to modify 
the nine-hour per day provision. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Fraternal Benefit Society — By-laws — Assessments. 

Nov. 22, 1933. 

Hon. Merton L. Brown, Commissioner of Insurance. 

Dear Sir: — You have advised me of the following facts relative to a 
certain foreign fraternal benefit society wliich you say is — 

"... doing business on the lodge system pursuant to the provisions of 
section 41 of chapter 176 of the General Laws. This society established 
a segregated class in June 1929. . . . 

This society was incorporated in the State of New York and its charter 
with respect to the segregated class above mentioned contains the fol- 
lowing provision: 

'Assessments and contributions paid by members in this class shall be 
segregated and maintained in a separate fund and shall be applicable only 
to death benefits due to beneficiaries of deceased members of this class, 
except that the Constitution or By-laws of the Society may provide that 
the rates to be paid by the members in this class shall include, in addition 
to the rates based upon the American Experience Table of Mortality, with 
an interest assumption of not higher than 4% per annum, nine cents per 
month for each $500,000 insurance, to be paid into a separate fund to be 
known as a Fraternal Fund, which fund may be used for the purpose of 
parang death benefits to beneficiaries of members holding certificates 
under the Post Mortem Plan; and provided further that any surplus in 
excess of one hundred and ten percent of the legal reserves required under 
the laws of the State and under the Constitution and Laws of the Society 
may also be used in payment of such benefits to beneficiaries of members 
holding certificates in the Post Mortem Plan.' 

This society through its proper ofiicers proposes to amend its by-laws, 
so as to provide as follows : — 



P.D. 12. S7 

'The rates provided for in this section include contributions to the 
Mortuary Fund of the segregated class (Class B), based upon the Ameri- 
can Experience Table of Mortahty and 4% interest assumption, and in 
addition thereto, 96 per month for each $500.00 insurance, as contribution 
to the Endowment Reserve Fund of Class A, to be used in the payment of 
death claims or other habilities occurring in the post-mortem assessment 
class (Class A) ; such contribution shall continue and shall be paid to the 
Fraternal Fund for the purpose here designated, so long as there shall 
remain any members in the group holding said form of certificates (post 
mortem Class A).' " 

In relation to the foregoing you have asked me the following questions: — 

"1. May the society operate in this Commonwealth under a by-law 
which permits it to assess members of the segregated class for the benefit 
of another class or classes? 

2. May the directors of a foreign fraternal society who are authorized 
by its charter to amend its by-laws make an amendment thereto which 
will authorize such society to transact business in the Commonwealth 
contrary to the provisions of our law relating to domestic societies?" 

G. L. (Ter. Ed.), c. 176, § 40, provides: — 

"If the stated periodical contributions of the members of any society 
subject to section thirty-nine are insufficient to pay all reported death 
and disability claims in full, and to provide for the creation and main- 
tenance of the funds required by its by-laws or by this chapter, additional 
contributions or additional, increased or extra rates of contribution shall 
be collected from its members to meet the deficiency, and the by-laws of 
the society shall so provide; and such bj^aws may provide that upon the 
written application or consent of the member his certificate may be 
charged with its proportion of any deficiency disclosed by valuation, with 
interest not exceeding five per cent per annum. 

In rerating its members or for the purpose of placing itself on a sounder 
financial basis, anj^ domestic society and anj^ foreign society now admitted 
to this commonwealth, if it be not in conflict with the laws of its domicile, 
may, if 'legally solvent' as defined in said section thirty-nine, establish 
by its constitution and by-laws a separate class of members who shall 
make mortuary contributions on the basis prescribed in section eight, to 
which class all new members who from time to time join the society shall 
be assigned, unless such new member or members shall otherwise elect, 
and all present members may at their option be transferred at the pre- 
scribed rate for such class. 

The mortuary contributions of such class shall be placed in a separate 
account and used only for the benefit of the members of that class or of 
their beneficiaries. In case of a society which has established such higher 
rate class whose contributions are held and used as herein set forth the 
'additional contributions' or 'extra rates' specified in this section shall be 
required only of the members of the class or classes respectively where the 
deficiencj^ in contributions is apparent, and each class shall provide for its 
own deficiency. Any class of a domestic society failing so to do shall be 
subject to the receivership provisions set forth in section thirty-six. If a 
society can show, by an annual valuation as hereinbefore provided, that 
it is accumulating and maintaining for all of its members who are not 
included in the separate class of members hereinbefore referred to the 
tabular reserve required by a table of mortality' not lower than the Na- 



88 P.D. 12. 

tional Fraternal Congress Table of Mortality as adopted at the National 
Fraternal Congress August twenty-third, eighteen hundred ninety-nine, 
and four per cent interest, and which has provided for stated periodical 
mortuary contributions based on said standard, then such society may 
abolish the segregation of members and funds hereinbefore required. A 
foreign society which has legally established such a class in its home state 
and whose constitution or by-laws require the segregation and use of the 
mortuary contributions of its members as herein set forth may be admitted 
to this commonwealth with respect to such class upon compliance with 
the laws of this commonwealth not in conflict with this provision." 

Upon examination of the original charter provisions which you have 
set forth as applicable to a "separate class of members," as those words 
are used in said section 40, and of the proposed amendment to the by- 
laws, which you have likewise set forth, it would appear that both are in 
contravention of the terms of said section 40, inasmuch as each, in differ- 
ent ways, makes provision for "mortuary contributions," as those words 
are used in said section 40, by "a separate class of members." part of 
which must or may be used for the benefit of the members of another class, 
in a rerating scheme. This form of use of "mortuary contributions" in a 
rerating scheme is forbidden to both domestic and foreign fraternal benefit 
societies by said G. L., c. 176, § 40. 

Accordingly, I answer both your questions, predicating my answer solely 
upon the facts which you have set forth in your communication and the 
law applicable to them, in the negative. 

Very truly yours, 

Joseph E. Warner, Attorney General. 

Retirement System — County Employees — Allowances. 

Under G. L., c. 32, §§ 20-26, the words "salary" or "wages" are not 
to be interpreted as including the idea of maintenance for employees. 

Nov. 24, 1933. 

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

Dear Sir: — You have written me a letter in which you state in effect 
that the County Personnel Board in working out the classification of 
county salaries, offices and positions under G. L., c. 35, §§ 48-56, has 
adopted a plan which seems to you to be at variance with the plan used 
by the Retirement Board in estimating retirement allowances of county 
employees. 

The plan which is used by the County Personnel Board, as you state, 
treats salary or wages and maintenance given to an employee as forming 
together the amount of his compensation. I think that this practice by 
the County Personnel Board is justified for the purposes of the classifica- 
tion of county salaries, offices and positions and is in harmony with G. L., 
c. 35, § 55. Justification for this is to be found, I think, in section 49, 
which reads, in part: — 

"Every office and position whereof the salary is wholly payable from 
the treasuiy of one or more counties, . . . shall be classified by the board 
in the manner provided by sections forty-eight to fifty-six, inclusive, and 
. . . shall be allocated by the board to its proper place in such classi- 
fication. . . . The word 'salary', as used in this section, shall include 
compensation, however payable; ..." 



P.D. 12. 89 

Although this definition of "salary" is appUed exclusively to the 
wording of said section 49 and is not extended to the remaining sections 
of said chapter 35, nevertheless I think the description of the offices and 
positions specified in section 49, in the light of the interpretation of the 
word "salary" in connection with them, indicates an intention on the 
part of the Legislature, with relation to maintenance as a part of salary 
or wages, which furnishes a foundation for the method which you say 
has been employed by the County Personnel Board in setting up the 
classifications. 

These considerations, however, do not apply to the interpretation which 
the Retirement Board must use in construing the provisions of the county 
retirement system law as set forth in G. L., c. 32, §§ 20-26. There is no 
special definition of "salary or wages" set forth in connection with county 
retirement systems, which includes maintenance as a part of salary or 
wages, and in the natural use of the words "salary or wages" maintenance 
is not embraced. The omission to so define "salary or wages" as embrac- 
ing maintenance, in the sections of chapter 32 with relation to the county 
retirement system, is in direct contradistinction to the definition of "salary 
or wages" which is set up by the same chapter, specifically in section 1, 
with relation to the State retirement system. There "salary or wages" 
is defined particularly as being "cash received for regular services to- 
gether with such allowance for other compensation not paid in cash as 
may be hereinafter provided." 

The omission of any similar definition in those sections of the same 
chapter which deal with county retirement systems would seem to leave 
the Retirement Board without any authority to treat "salary or wages," 
under the terms of the sections of chapter 32 dealing with the retirement 
system for counties, in any other manner than as possessing their usual 
or natural meaning, which does not include the idea of maintenance. If 
there be any injustice worked by the discrepancy between the effect of 
the wording of chapters 32 and 35, it might be remedied by further legis- 
lation. 

Very truly yours, 

Joseph E. Warner, Attorney General. 



90 P.D. 12. 

INDEX TO OPINIONS 



PAGE 

Armories; entertainments; licenses from municipal authorities ... 47 

Blind workmen; furnishing medical attention 30 

Boston Elevated Railway Company; legislative authority as to acquisition 

and management by the Commonwealth of properties of the company 77 
Child Guardianship, Division of; consent to Schick test to be given to a 

minor under its charge 73 

Cities and to\vns; public works projects; water supply 79 

Citizens domiciled; marital status 63 

Citizenship; registration of voters; certificate 62 

Civil service; "conviction" 56 

Superintendent of Brookline Contagious Hospital 39 

Teachers; playground workers; exemptions 46 

Constitutional law; Boston Elevated Railway Company; legislative 

authority 77 

Member of House of Representatives; incompatible office . . . 82,83 

Payment of wages; contractor on public works 41 

PubUc money; charitable institutions 76 

Statutes; time of taking effect 67 

"Conviction"; interpretation 56 

Correction, Commissioner of; appointment and removal of deputies; term 

of office 37 

County commissioners; bills for equipment of quarters for a sheriff as master 

of a house of correction; approval 33 

Plans for construction or alteration of a dam by Department of Conserva- 
tion; approval 65 

Fisheries and Game, Division of; authority of Director to declare an open 

season 65 

Wardens; transfer from one district to another 31 

Fraternal benefit society; by-laws; assessments 86 

Hawkers and pedlers; distribution of license fees by Director of Standards . 32 

Hunting by artificial light; deer; rifle 35 

Insurance; life policy; forms; reinstatement 59 

Lapses 29 

Motor vehicles; United States reservation 84 

Intoxicating liquors; licenses; termination 68 

Labor; eight-hour law; services of persons aided through public welfare 

departments 57 

Hours of work; authority of Commissioner of Labor and Industries; 

"public necessity" . . . • 71 

Women; seasonal manufacturing .85 

Minors; employment certificates 48 

Veterans' preference; contractors on public works 55 

Services of persons aided through public welfare departments ... 57 

License fees; hawkers and pedlers; distribution by the Director of Standards 32 

Hunting and fishing; towTi clerks 36 

Marriage; conflict of laws; invalidity 58 

ProhilDition; adopted son 73 

Milk; analyses by inspectors, etc.; public records 36 

Motor vehicles; forfeitures under laws relating to intoxicating licjuors . . 42 

Insurance; United States reservation 84 

License; suspension by Registrar; bankruptcy 72 

Taxes ; United States reservation 45, 50 

Municipal employees; leaves of absence; separation from the service . . 82 

Physician; qualifications for registration; certificate 39 

Prisoners; operation of steam shovel; license 38 



P.D. 12. 91 

PAGE 

Public Health, Department of; appeal; refusal of license 69 

Public money; use; charitable institutions 76 

Railroads; directors; common management of two or more railroads . . 50 

Retirement; computation of pension; employment 68 

County employees; allowances 88 

Retired State employee; right to vote at election of a member of the State 

Retirement Board 40 

Standards, Director of; distribution of Ucense fees paid by hawkers and 

pedlers 32 

State Boxing Commission; members' traveHng expenses 43 

State farm; authority of superintendent to appoint or remove medical 

director 34 

State forests; county commissioners; approval of plans for construction of 

a dam 65 

Timber production; recreation 73 

State Prison Colony; disposition of receipts from labor 45 

State Reclamation Board; mosquito control; expenditures .... 49 

State Treasurer; deposits; stockholder's Habihty 60 

Steam boilers and engines; engineers; Hcenses 43 

Sunday laws; games; amusements; licenses 63 

Teachers; tenure; city of Pittsfield 28 

Town; assumption of liability; public work 74 

Trustees of a textile school; delegation of powers to a bank; funds . . 75 

Veterans' preference; Division of Smoke Inspection; additional service . 70 

Laborers; contractors on public works 55 



92 P.D. 12. 



RULES OF PRACTICE 

In Interstate Rendition. 

Every application to the Governor for a requisition upon the executive authority 
of any other State or Territory, for the deUvery up and return of any offender 
who has fled from the justice of this Commonwealth, must be made by the district 
or prosecuting attorney for the county or district in which the offence was com- 
mitted, and must be in duplicate original papers, or certified copies thereof. 

The following must appear by the certificate of the district or prosecuting 
attorney: — 

(a) The full name of the person for whom extradition is asked, together with 
the name of the agent proposed, to be properly spelled. 

(6) That, in his opinion, the ends of public justice require that the alleged 
criminal be brought to this Commonwealth for trial, at the pubUc 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 directlj- 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 satisf3dng 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 dupUcate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and circum- 
stances showing the commission of the crime charged, and that the accused perpe- 
trated the same, must be shown by affidavits taken before a magistrate. (A notary 
public is not a magistrate within the meaning of the statutes.) It must also be 
shown that a complaint has been made, copies of which must accompany the 



P.D. 12. 93 

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 w^ho 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. 7-'34. Order 167.