Public Document
No. 12
Cbe Commontoealtf) ot g^a00acbu0ett$
REPORT
ATTORNEY GENERAL
Year ending November 30, 1934
Public Document No. 12
Cbe Commontoealtl) o( d^assactusme
REPORT
ATTORNEY GENERAL
FOR THE
Year ending November 30, 1934
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Cfte Commontoeaiti) oC gia00acftu0etts
Department of the Attorney General,
Boston, January 16, 1935.
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, 1934.
Very respectfully,
JOSEPH E. WARNER,
Attorney General.
Cfje Commontuealtf) of ^a$mt\)\x^tm
DEPARTMENT OF THE ATTORNEY GENERAL,
State House.
Attorney General.
JOSEPH E. WARNER.
Assista7its.
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.
John Laurence Hurley.*
Jennie Loitman Barron.*
Chief Clerk.
Louis H. Freese.
Cashier.
Harold J. Welch.
Resigned December 31, 1933.
Appointed January 1, 1934.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Fiscal Year.
Generalappropriationforl934(St. 1934, c. 162) $91,567 00
Balances brought forward from 1933 appropriation .... 619 05
Appropriations for small claims:
St. 1934, c. 162 $5,000 00
St. 1934, c. 384 1,000 00
Appropriations under St. 1931, c. 458:
St. 1934, c. 162 $4,000 00
Extraordinary expense fund 2,500 00
6,000 00
),500 00
Advertising unclaimed savings bank deposits (St. 1934, c. 162) . . 15,000 00
$119,686 05
Expenditures.
For salary of Attorney General $7,066 67
For salaries of assistant., 37,558 31
For salaries of all other employees 19,596 73
For sheriffs' fees, court stenographers, witness fees and all other special
services 7,754 12
For law library 726 47
For office expenses and travel 3,996 74
For court expenses 778 43
For small claims 5,910 74
For claims under St. 1931, c. 458 5,143 00
Total expenditures $88,531 21
Balance $31,154 84
^t)t CommonUjealtf) of Q0a00acl)usett0
Department of the Attorney General,
Boston, January 16, 1935.
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, 1934, to the number of 8,510 are tabulated below:
Corporate franchise tax cases ......... 2,458
Extradition and interstate rendition ........ 105
Land Court petitions ........... 51
Land-damage cases arising from the taking of land:
Department of Public Works ........ 466
Department of Mental Diseases ........ 2
Department of Conservation ........ 1
Department of Correction ......... 1
Metropolitan District Commission ....... 106
Metropolitan District Water Supply Commission ..... 44
Miscellaneous cases ........... 603
Petitions for instructions under inheritance tax laws ..... 52
Public charitable trusts .......... 318
Settlement cases for support of persons in State hospitals .... 32
All other cases not enumerated above, which include suits to require the filing
of returns by corporations and individuals and the collection of money
due the Commonwealth ......... 4,217
Indictments for murder, capital cases ........ 54
Disposed of . . . . . . . . . . .42
Now pending .......... 12
P.D. 12.
THE DEPARTMENT OF THE ATTORNEY GENERAL.
Its Functions in General.
The Functions of the Office of Attorney General.
The legal service of the Department of the Attorne}' General embraces both
criminal and civil functions. ^
a. With Respect to AdministratioJi of Criminal Matters.
Criminal functions are involved by reason of pro\'isions in several statutes re-
quiring the Attorne}^ General to take cognizance of all violations of law, ^ authoriz-
ing him to call upon the District Attorneys to perform services in criminal matters
not required by law to be performed by the Attorney General personal!}', ^ and
to proceed in certain criminal and other matters therein stated.^
h. With Respect to Administration of Civil Matters.
Civil functions are involved by reason of the recognized custom of three centu-
ries, endowing the Attorney General with authority to represent the collective
people in asserting or resisting encroachment upon their collective legal rights,*
by reason of provisions in statutes,^ in general, vesting him with the authority
and duty of representing the Commonwealth in every legal transaction wherein it
or its officials are a party ^ and wherein judges of the courts are named respond-
ents;* in particular, 9 requiring the rendition of other services of wide nature;
and, by reason of other statutes,^" requiring him to serve upon certain boards in
1 Cml functions in the conduct of the legal matters of a government partake of the service of a Solicitor
General, while, as in the Federal government, criminal functions are the service of the Attorney General.
Mass. Const, art. 9, c. 2, § 1, provides for the office of Solicitor General, but the Legislature has not created
it. The work of the office of the Attorney General in this State, therefore, fuses the services native to both
offices, and is dominantly that of a Solicitor General.
2 G. L. (Ter. Ed.) c. 12, § 10.
5 G. L. fTer. Ed.) c. 12, § 27.
* Several statutes relating principally to matters referred to him by departments.
' Seeking determination of the legal right to the exercise of office by rival officials and of use or appro-
priation of common public property by private individuals, or appearing in proceedings anywhere in
matters affecting the welfare of the collective people.
« G. L. (Ter. Ed.) c. 12, § 3.
' The Legislature, however, in creating several departments, commissions and boards, has specifically
provided that they may have legal counsel, presumably for the reason that the necessity for instant
advice, to enable rendition of service to the people in the multitude of matters under their juris-
diction, as a practical matter precludes resort to the office of the Attorney General for sanction of every
transaction. The Attorney General, however, advises and represents such departments in matters affect-
ing any department as a whole.
8 Embracing every form of litigation in the State and Federal courts; approval of the legal form of
every document, contract, lease, release, bond, rule and regulation of the twenty departments; approval
of titles to land taken by eminent domain or purchase; and the rendition of opinions to the Legislature
and its committees, and to such departments and officials.
' Approval of all by-laws enacted by towns; approval of accounts of public administrators — in that
for lack of heirs unexpended balances escheat to the Commonwealth; suits in behalf of cities and towns
against collectors and bondsmen for uncollected taxes or for taxes collected and unaccounted for; appli-
cation of charitable trusts to purposes of donors; settlement of claims under $1,000 against the Com-
monwealth where the claimant has no remedy at law; investigation of matters specially ordered by the
Legislature; determination of the form of questions appearing upon the ballot and of initiatives and refer-
enda.
'" Such as boards determining existence of emergency in municipalities to enable expenditures in excess
of statutory limits; supervising the administration of certain towns; grading of milk, etc.
P.D. 12. 7
an administrative or quasi-judicial capacity and to make recommendations ^ for
amendment to and proper and economical administration of the laws.
I. Administration of Criminal Matters.
1. Aspect of Criminal Matters to which Administration Applies.
Crime is violation of Federal, State and municipal laws. Its suppression and
control, apart from private agencies, are subject to Federal and State agencies,
each several in number. In this Commonwealth the agencies are those for preven-
tion, detection, apprehension, prosecution and, upon conviction, correction of
criminals. The first are agencies, public and private, such as the police, probation
officers and welfare agencies; the second and third are the pohce. State and munic-
ipal; the fourth are the police and attorneys for complainants in the district courts
and the Attorney General and the District Attorney's in the Superior Court; and
the fifth are the court, probation officers and welfare agencies.
It will be seen that before prosecuting agencies may begin prosecution,
the agencies for prevention, detection and apprehension must perform their re-
sponsibilities. ^ In general, they are of two groups, State and municipal. The
former is composed of the State Police and the MetropoUtan District Police; the
latter, of 355 separate autonomous police departments numbering some 11,000
men, with efficacy over local crimes to such extent as their equipment, personnel
and efficiency permit and as public desire for law enforcement impels. Neither
the Attorney General nor a District Attorney nor an}'- person in the State govern-
ment has direction or control over them, although in some quarters the contrary
is erroneously assumed, and it is also erroneously assumed that the Attorney
General and the District Attorneys are chargeable with responsibility for the pres-
ervation of the public peace as well as prosecutions for its breach everywhere.^
2. Prosecution of Crime is the General Aspect to -utiich Administration
Applies.
The only relation which the Attorney General and the District Attorneys have
with the suppression of crime is its prosecution.
Prosecution of crime is had in the district courts where misdemeanors principally
are prosecuted, and in the Superior Court where felonies and appealed misdemean-
ors are prosecuted.
1 G. L. (Ter. Ed.) c. 12, § 11.
2 With respect to rampancy of crime by persons unknown, and of unsolved murders, it is obvious that
neither the Attorney General nor the District Attorneys have any responsibility; that it is entirely the
responsibility of the police.
3 It is asserted, for instance, that the authority given to the Attorney General to call a special grand
jury (G. L. (Ter. Ed.) c. 277, § 2A) charges him with responsibility for prevalence of crime anywhere
unsuppressed by local police, — such as lotteries, horse-room pools, slot machines, bootlegging and gam-
ing, — in that it endows him with power to summon members of a community before it to extract from
them evidence as to violations of law. The facts are that a special grand jury has no more efhcacy than
a regular grand jury; that there is no excuse for requesting a special grand jury if a regular grand jury
is available; that a special grand jury may not be summoned, even if requested, unless the Chief Justice
of the Superior Court certify that "public necessity" requires it; that, unless evidence has been obtained
for presentation to it, the request for a special grand jury to further an attempt to ferret evidence out of
members of a community in the hope of discovering somebody against whom an indictment can be found
for something is unjustified; that the purpose of a special grand jury is to enable, in an emergency, des-
patch in the presentation of indictments when exigencies preclude resort to a regular grand jury; that,
otherwise, the application for a sitting of a special grand jury is a spectacular gesture and cannot serve
as a control of crime in substitution for direct control by the police.
8 P.D. 12.
3. Of Such Aspect, Prosecution in the Superior Court is its Scope.
In so far, therefore, as the Attorney General ^ and the District Attorneys have
to do with the matter of crime, it will be seen that they have no responsibility to
detect and apprehend criminals and no authority over the police, municipal or
State, in their responsibility to detect and apprehend criminals and to maintain
the public peace, other than to bring to the attention of such police officials any
crimes of which they are cognizant; that their responsibilit)^ is to prosecute crime;
that they have no duty or responsibility to prosecute the class of crimes presentable
in the district courts, except capital offences, and that their responsibility is con-
fined to the Superior Court in the preparation and presentation of cases of alleged
felonies and of misdemeanors appealed from the district courts. To such extent,
therefore, as prevalence of crime is attributable to lack of fear of detection and
arrest, it remains the problem of perfecting the agency of the police ; to such extent
as prevalence is attributable to lack of fear of successful prosecution in the district
courts, it remains the problem of perfecting prosecution there.
4. Modes of Administration to Effect Prosecutions: by Co-operative
Action with District Attorneys; by Action of the Attorney General
Independently.
Administration is effected by co-operative action with the District Attorneys
in prosecution of matters wherein statutes authorize the Attorney General to call
upon any District Attorney or by independent action of the Attorney General
to prosecute, wherein the statutes enable or exact such independent prosecution.
(1) Administration by Co-operative Action with District Attorneys.
All violations of law arising in the district of any District Attorney, when brought
to the attention of the Attorney General, are, as a matter of routine, referred to the
District Attorney for prosecution, as the statutes provide that the District Attorney
shall appear for the Commonwealth in all cases unless the Attorney General inter-
change such duties and unless personally present.
Although the Attorney General - may at any time assume personal control of any
criminal proceedings undertaken by a District Attorney, it is not, and never has
been, the custom for him to do so, for many reasons.^
1 I have repeatedly called to the attention of the Legislature the fact that the Department of the At-
torney General has no facilities whatever for investigation and expense of prosecution of general crime,
and to the fact that it is entirely dependent upon the Department of Public Safety for assistance; that
such department is not in the slightest degree obligated to render such assistance; that such assistance
as it may render is dependent upon exigencies of its routine business and extent of appropriations, and
that the Attorney General has no jurisdiction with respect to extermination of local criminal prevalence.
The Legislature has repeatedly denied the Attorney General facilities, jurisdiction and appropriations.
2 G. L. (Ter. Ed.) c. 12, § 27.
3 As the Legislature has divided the Commonwealth into eight districts (G. L. (Ter. Ed.) c. 12, § 12)
for prosecution in the Superior Court of crimes occurring in each district, and has created the office of
District Attorney, with Assistant District Attorneys in each district, and as, primarily, the duty of a Dis-
trict Attorney is solely prosecution; as any general assumption by the Attorney General of prosecutions
in criminal matters throughout the Commonwealth would unnecessarily duplicate the work of the Dis-
trict Attorneys; as the Attorney General's Department is charged with responsibility for all civil legal
work of the Commonwealth; as any venture on the part of the Attorney General to assume personal
charge of such criminal matters would result in corresponding inattention to civil matters; as assumption
of personal prosecution of any matter logically within the jurisdiction of a District Attorney would occa-
P.D. 12. 9
a. Conferences with District Attorneys and Assistant District Attorneys.
Pursuant to a program adopted during my incumbency, I have held conferences
with the District Attorneys ^ and their Assistants every ninety days, with prime
purpose, not only of furthering co-operation, but of attaining quick prosecution as
soon as arrests are made, to the end that in so far as it has been contended that
swift justice is a potent deterrent to crime, it may not truthfully be said that any
prevalence of crime in Massachusetts is, in the slightest degree, attributable to
delay by the District Attorneys or the Attorney General in prosecution after arrest,
nor to such congestion of the criminal dockets as would force District Attorneys
to bargain with defendants for lighter terms, for easy riddance of accumulated cases.
In consequence of persistence in this program, we have demonstrated, in instance
after instance, that conviction for heinous crime was but a matter of days after
commission and arrest; that dockets are now so cleared that, in general, all triable
cases are currently reached and disposed of;^ and, upon the statistics of number
of arrests, as index that general crime has decreased. ^ The record of the District
Attorneys with respect to attaiimient of these results is indisputable, and in so
far as crime control is effected by immediate prosecution after arrest, is unassail-
sion unjustified reflection upon the capacity of the District Attorney (see Crime Commission Report
Senate 125, 1934, p. 114, to same effect); and as the Legislature has declined, by appropriation or other-
wise, to provide facilities for such general assumption of such prosecution by the Department of the At-
torney General, it has been the practice that prosecution of all matters, other than capital cases up to
twenty years ago, and matters solely chargeable to the Attorney General, should be had by the District
Attorneys, and not by the Attorney General personally. Twenty years ago, by custom, the Attorney
General conducted all murder trials. Since that time the great mass of civil legal business of the State
has so increased as to exact all his attention, and as the District Attorneys, elected by the people, have
demonstrated their capacity to prosecute such cases, the practice of such prosecution by the Attorney
General has been abandoned. It was also a contemporaneous procedure for capital cases to be heard by
three judges of the Superior Court. As such procedure was changed, by reason of exigencies precluding
the use of three judges, similarly the custom of prosecution of such cases by the Attorney General was
abandoned. Indeed, the resumption of such custom in any or all cases would cause comment as to the
competency of a District Attorney to conduct them, and, also, unless resumed in all capital cases, its
resumption in some and not in others would cause comment. At the present time there are thirteen capital
cases pending. It is obvious, if there be expectation, by reason of that cu.stom, that the Attorney General
should conduct all murder cases, that not only would his entire time be consumed in such prosecution, to
the exclusion of the innumerable civil matters entirely dependent upon him for decision and action, but
that, in order to arrange for these trials in sequence, delay in the disposition of the capital cases would
ensue.
1 G. L. (Ter. Ed.) c. 12, § 6.
2 In 1933, 19,931 cases were handled; in 1934, 20,447. There was an increase of 672 cases of drunken-
ness.
3 Eliminating drunkenness, there were 5,180, or 6.7 per cent, fewer arrests in 1934 than in 1933; for
drunkenness, 83,658 arrests in 1934, 67,096 in 1933, an increase of 16,562, or 24.7 per cent; a total of
155,335 arrests in 1934; of 143,953 in 1933; an increase of 11,382, or 7.9 per cent, in 1934.
For offences against the person, 5,846 arrests in 1934, 6,202 in 1933, a decrease of 5.7 per cent. For
robbery, 16.4 per cent decrease in arrests.
For offences against property, 11,824 arrests in 1934, 12,289 in 1933, a decrease of 3.8 per cent.
For offences against public order (including drunkenness), 137,665 in 1934, 125,462 in 1933, an increase
of 21.4 per cent in nonsupport cases; decrease of 53 per cent in violations of the liquor laws; decrease of
9.4 per cent in violations of the motor vehicle laws; decrease of 24.4 per cent in sex offences (excluding
those classed under offences against the person).
Mr. Frank Loveland, Director of Research for Prevention of Crime in the Department of Correction,
to whom I am indebted for compilation of these statistics, and to whom I express my appreciation for
his intelligent service in criminal statistics, says: "If statistics on arrest are any indication of crimes
committed the comparison for 1933 and 1934 indicates a gradual dechne in the commission of the more
serious offences, or those against the person and property, and a significant increase in drunkenness, vio-
lation of the gaming and lottery laws and nonsupport."
This compilation is appended.
10 P.D. 12.
able and, indeed, unsurpassed by any comparable State. The standard will un-
doubtedly be maintained. This record is an accomplislmient for which each and
every District Attorney and his staff is entitled to great credit, and one achieved
during my administration of criminal justice, which is a source of great personal
pride. However much or little comment be appropriate as to delay of justice in
trials in civil actions, it is not pertinent to trials in criminal actions.
b. Reports of District Attorneys os to Administration in Each District. '
For Middlesex, Mr. Bishop reports that of cases against 653 persons charged
with felonj" and against 910 persons charged with misdemeanors, not more than
25 for felony and 89 for misdemeanors will remain undisposed of December 31,
1934, including 3 first-degree murder cases. -
For Essex, Mr. Cregg reports that the dockets are clear, as usual; that the cost
of administration this j^ear was the lowest in fifteen years; and that most unusual
incidents occurred in some trials. ^
For the four southern counties, Mr. Crossley reports that, in Bristol, 137 cases,'*
including 1 murder, ^ pending, and 494 felonies and 740 misdemeanors were disposed
of; in Barnstable, 10 cases pending, and 33 felonies, including 1 murder, ^ and 132
misdemeanors disposed of; in Dukes County, 1 case pending, and 5 felonies and 5
misdemeanors disposed of; and in Nantucket, no cases pending, and 5 felonies and
5 misdemeanors disposed of.
. For Norfolk and Plymouth, Mr. Dewing reports that, in Norfolk, of 109 pending
felonies, including 3 murder indictments, 21 have been tried, and of 155 misde-
meanors, 78 haA^e been tried, and that a succeeding sitting will dispose of the others ^
(a comm.endable condition of the docket, considering the interruption to routine
spring business caused by his long and able trial of the Millen cases, of such conse-
quence to the people); that, in Plymouth County, of 39 felonies and 35 misde-
meanors, ail have been disposed of. He observes an increase in manslaughter cases
resulting from operation of motor vehicles and in appealed "pool" operations. He
urges insistence, in the Superior Court, upon the same sentence imposed by a lower
court, as one effective means of curbing pool rackets, and advocates publicity to
warn the people against a new form of racket — the oil royalties racket.
1 Northern District (Middlesex), Warren L. Bishop.
Eastern District (Essex), Hugh A. Cregg.
Southern District (Nantucket, Dukes County, Bristol and Barnstable), William C. Crcssley.
Southeastern District (Norfolk and Plymouth), Edmund R. De-wing.
Middle District (Worcester), Edwin G. Norman.
Western District (Hampshire and Franklin), Joseph T. Bartlett.
Suffolk District, AVilliam J. Foley.
= No. 12734 (Walsh), No. 12324 (Penta, Ventura, Orlando, DeVito), and No. 12323 (Taylor).
3 One, which is perhaps without precedent in the country, was in the trial of two men, liable to extreme
penalties, during the course of which District Attorney Cregg discovered evidence refuting evidence preju-
dicial to them previously given to him, and upon his own initiative and pursuant to the ideals of true
prosecution, moved for their discharge, thus exemplifying the Massachusetts ideal of justice, as equally
cjuick to protect private rights as to avenge public wrongs.
* 22 with defendants unapprehended; 13 defaulted.
5 Indictment for second-degree murder (DiCiccio) for trial February, 1935.
6 On indictment for murder (Kari) plea of manslaughter accepted, with sentence of 7 to 10 years in
State Prison.
' Though by the December, 1934, sitting, 61 additional felonies and 105 appealed misdemeanors were
brought in, only 6 felonies, including a murder indictment set for trial in January, and but a few misde-
meanors, are undisposed of.
P.D. 12. 11
For Worcester, Mr. Norman reports all 'triable cases (1,132) disposed of, ^ includ-
ing 6 first-degree murders.
For Hampden and Hampshire, Mr. Moriarty reports that the dockets in both
counties permit immediate trial of any case that may arise; that, in Hampden, 4
murder trials were disposed of, and that all misdemeanors were disposed of at a
special sitting; and that there were no acquittals in crimes of force and violence.
For Hampshire and Franklin, Mr. Bartlett reports that all triable cases were dis-
posed of; that in Hampshire, only 7 felonies ^ and 3 misdemeanors^ are pending;
that, in Franklin, although 7 felonies * are pending, there are no triable felonies, and
only 5 misdemeanors;* 1 homicide ^ disposed of, and 1 murder as yet unsolved.
For Suffolk, Mr. Foley reports that the number of untried and undisposed of
cases is the lowest in years; that there are 3 capital cases for trial,^ and that suc-
cessful prosecutions have had most salutary effects.*
c. Indictments for Capital Crime and Their Disposition.
The record and status of indictments for capital crime reported to the Attorney
General under the statute' is appended.
(2) Administration by Action of the Attorney General Independent
OF THE District Attorneys.
The criminal matters ^\^th which the Attorney General deals primarily are
recited in the statutes,^" chiefly, violations of laws reported to him by the head of
an}'^ department having jurisdiction over the administration of such laws.
a. Action relating to General and Particidar Violations of Law.
To recount the incidents of such independent action taken b}^ the Attorne}' Gen-
eral in such matters, pursuant to the dictates of such statutes, is ob\dously impos-
sible. In so far as independent action in criminal matters is invoked b}^ the general
statutes providing that he shall take cognizance of all violations of law, every com-
plaint anywhere was immediately referred for investigation and arrest to the De-
partment of Pubhc Safety, the only agency the Attorney General may utiUze, and,
if the evidence so warranted, prosecutions followed. In crime of great public con-
1 17 cases were disposed of under the recent law (G. L. (Ter. Ed.) c. 263, § 4A, added by St. 1934,
c. 358) enabling arraignment of persons charged with crime not punishable by death, upon waiving of
indictment by a grand jury; in the murder cases, 3 were found not guilty, 2 by reason of insanity and
1 found guilty of manslaughter.
- 2 companion cases for armed robbery; 3 companion cases for arson, where all defendants are serving
sentences for other crimes; 2 cases where defendants have already pleaded guilty and await sentence.
3 2 for liquor, 1 for vagrancy.
* 5 against the same defendant, with pleas, continued for sentence; 1 plea of guilty, but defendant
serving sentence for another crime; and 1 in the Supreme Judicial Court.
5 Ready for trial, 3 entered since last sitting of court.
6 James Suriano, Hampshire (indicted for murder, tried for second-degree, plea of manslaughter
accepted during trial).
' 1 case tried, but jury disagreed; in second, indictment returned in 1924, but prisoner returned to
this jurisdiction only five months ago; and in third, indictment returned in 1933, but prisoner not appre-
hended until November of this year.
8 Prosecution for jury bribing, with State Prison sentence; for arson, highly commended by the State
Fire Marshal.
9 G. L. (Ter. Ed.) c. 212, § 7.
'1 The Department of Public Utilities, violations of the Sale of Securities Act; the Commissioner of
Banks, of banking; the Commissioner of Insurance, of insurance; the Secretary of State, of corrupt
practices; the Governor and Council, relating to parole, pardons, extradition of fugitives; and custo-
dians, with respect to habeas corpus proceedings.
12 P.D. 12.
cern, during search for defendants, the Attorney General was in constant contact
with the Department of Pubhc Safety and its most efficient detective and poUce
units, ' — upon which the Attorney General is obliged to depend, - — and, during
trial, with the prosecuting District Attorney, to extend such instant supplementary
aid in furthering and securing conviction as contingencies might require. In
furtherance of the Federal campaign against crime, the Attorney General was
among the first to extend to the Attorney General of the United States his offer
of every facility at his disposal.
b. Action relating to Violations of Bankirig Laivs.
Among the particular criminal matters, with the conduct and prosecution of
which the Attorney General is primarily concerned, those relating to the status of
violations of banking laws were paramount. ^
Some of these were violations of Federal law, and the Attorney General co-
operated in their prosecution by the Department of Justice. One of the other
1 I gratefully acknowledge the splendid services of John Stokes and Joseph Ferrari.
2 As the Legislature, through lack of legislation and lack of appropriation, has denied the Attorney
General other facilities.
" Under the statute, which required prosecution forthwith, the particular matters in three banks upon
which the Commissioner of Banks, in 1932, reported specifically, were immediately referred to the appro-
priate District Attorneys; the Medford Trust Company, to District Attorney Bishop; the Industrial
Trust Company, to District Attorney Foley; and the Salem Trust Company, to District Attorney Cregg.
Prosecutions followed.
There were matters in the data not specifically reported, the determination of the nature of which
became contingent upon necessary further investigation, relating to other banks, particularly closed
banks in the Federal National Bank chain. After their determination, any contemplated action had to
regard three considerations, namely, maintenance of confidence in banks which had not been closed —
which might be shattered by precipitate action against officers of closed banks; recovery, as far as possible,
for depositors, of their moneys which had been dissipated; and prosecution to secure punishment of those
responsible for the predicament.
Maintenance of confidence in solvent banks was imperative; restoration to depositors of their losses
in closed banks by civil and administrative action was of no less vital social and economic importance
than prosecution; and prosecution was essential though incapable of effecting the restitution of a dollar.
The vast volume of data, affecting all the transactions in the various banks, required such examination,
for determination of their criminal and civil aspects, for assembling of facts, for maintenance of civil suits,
and for prosecution in each case, as to preclude the possibility of precipitate criminal action. This process
thus satisfied the first consideration — - maintenance of public confidence in solvent banks, and enabled
the second — substantial restoration to depositors in closed banks and their reorganization and reopen-
ing — by civil proceedings, by administrative action of the Commissioner of Banks through liquidating
processes, resort to supplementary financial measures and institution of civil suits.
In 23 banks, with 350,000 depositors and $108,000,000 deposits, during a two-year period, over 50 per
cent — $63,195,000 — has been returned (and $5,645,000 additional will be payable in December, 1934).
Of the relative salutary merits in each of the three considerations, the conduct and service of the At-
torney General contributed to the consummation of the first two, — confidence in solvent banks and
substantial restoration to the depositors in closed banks. With respect to the third — prosecution — ob-
viously all alleged violations of State banking laws by any one of the banks in the Federal National chain,
involved transactions by such bank with some other bank or banks in the same chain, and presented a
composite problem not to be met successfully by isolated State proceedings. Obviously, also, they in-
volved transactions with the parent Federal Bank, which made the problem more composite, since the
parent bank was a Federal Bank, and it was not within the jurisdiction of this Commonwealth to investi-
gate or supervise its alleged operations. The Federal Department of Justice met the impasse to success-
ful State prosecution of all these integral matters by instituting, in 1932, prosecutions of those in the Fed-
eral Bank. In deference to the request of the United States Special .\ssistant Attorney General in charge
of the Federal prosecution, as well as to practical considerations, and to the end that such prosecution
might not be deterred by simultaneous and scattered prosecutions of separated matters in different dis-
tricts, which would occasion use of much of the same evidence, and that, in all the civil proceedings for
recovery of money for the depositors, data might be immediately accessible, all active criminal prosecu-
tions by the State were allayed.
To such extent as consideration and determination of these matters by the Federal Department was
a factor, their recent conclusion no longer interposes such proceedings by the State as the experience there
may support.
P.D. 12. 13
violations was successfully prosecuted by the office of the Attorney General,
with penalty heavier than had ever been previously imposed anywhere in the State
for violation of our banking laws. ^
c. Extradition.
There were 105 extradition cases; 25 requests from other States, to which 17
fugitives were returned ; 84 requests from this State to other States, from which 79
were returned, including 32 charged with desertion, non-support or neglect of ^^ife
and children.
5. General Observations upon Criminal Matters.
The population of this State is 4,249,614. Though the agencies for community
peace and capture of criminals are now separated into independent units, the very
fact that the lives and property of such myriads are safeguarded speaks great praise
of our police, State and municipal, — the first line of defence. My esteem for their
courage and fidelity has been increased from experience during mj' tenure, and will
excite constant response to measures for greater justice to them and to their depend-
ents. The fact that general crime is decreasing and that \'icious crime is factional
speaks laudation of the general disposition of Massachusetts to law observance.
Crime and measures for its more effective control are subjects of no less major
importance than economics, though minor in public interest. Just as, in matters
of health, though it may peril the whole race, crusades against contagion com-
mandeer only those who have suffered its scourge; so, crusades against crime recruit
only those racked by its ravage. Though, in 1934, decimation by driven death
censused the population of Florida, Rowe and Otis combined, highway safety
campaigns can enlist only the corps of the careful, so crime control can enroll only
the contingent of the dutiful, notwithstanding the blare of banditry, bank robbery
and bribery.
That such phenomenon exists is not the fault of the people. It tokens the tragic
truism, "What's everybody's business is nobody's." It exists because of the com-
plexity of the subject of crime and its control — too great for casual comprehension;
because of the variety of its aspects — too numerous for random understanding;
because of futility of complete effective control by reform in one aspect without
accompanying reform in others; because of frequent defeat of ideal proposals;
because of the bitter controversies which any proposal -evokes, ^ however ideal;
' Industrial Bank and Trustt Company. — Trial July, 193-1. Indictments for violation of banking
laws and G. L. (Ter. Ed.) c. 266, § 74, for wilful and unauthorized use by an officer of this corporation
of its name to obtain money upon its credit for his own use or benefit; defendants found guilty; sentenced
to 1 year in common jail and a fine of $2,000 and sentence of additional year in the former; and sentence
to State Prison for 3 to 5 years in the latter. Several indictments are still pending. The company was
closed March 19, 1931, with 13,923 savings accounts of modest amounts aggregating $1,626,139, and
1,314 accounts of the small business man subject to check, aggregating $653,861, which, it appeared,
had been affected by the conduct of the persons convicted.
2 For instance, the suggestions and recommendations of the Special Crime Commission (Senate No.
125, 1934) dealing principally with the agencies of detection and apprehension, of prosecution and of cor-
rection, because of opposition to each were, in the main, all rejected. The nature of some of its sugges-
tions was as follows:
With respect to detection and apprehension, centralization of all police departments under State control.
With respect to prosecution, appointment of the Attorney Genera! by the Governor; confinement of
the Attorney General to criminal matters; possible appointment of District Attorneys by the Governor;
appointment of a public prosecutor in the office of the Attorney General; elimination of the grand jury
in certain cases, if not entirely; division of the district courts into four circuits; curtailment of appeals
from district to Superior Court.
With respect to correction, a more discriminate mode in the selection of probation officers; a State-
wide system of probation; a more discriminating mode in selection and service of jurors.
14 P.D. 12.
because of large concern for crimes of violence and little for vice, — like lotteries
and slot machines, though both are forbidden; and because criminal conduct can-
not be corrected while, in civil conduct, injustices of greatest proportions continue
uncorrected. Endeavor for more effective control should persist, though the moral
aspects enlist, as has been demonstrated, the active interest of but a fraction. The
economic and social aspects have tremendous relation to restoration of industry
and employment, to utilization of wealth for legitimate service to societ}^, and to
the hastening of the new order for social justice — more dependent for its establish-
ment upon the exemplification of honest and equitable principles than legislative
prescription.
Consequently, progress toward more effective control will be slow. It will require
patience and will depend largely upon the incentive of public opinion, ' but no realm
offers greater opportunity for social service.
The status of crime and the effectiveness of its control in the United States are
not comparable ^ to any other country, though writers, to our disparagement, would
so represent. Status of crime and effectiveness of control is afTected by our dual
system of government, the Federal and that of forty-eight sovereign States. Not
only do these separated jurisdictions complicate control of crime, but every trial
for a State crime is complicated by questions which a defendant may raise under
two Constitutions, the Federal and the State. Recently, Congress not only
strengthened control over crime against the Federal government, but, by confer-
ences' and otherwise, furthered co-operation between States and between States
1 For instance, so long as, in any community, it is not generally considered unjust that legitimate tax-
paying business struggles to exist, while illegitimate business of selling slot machines and gambling de-
vices flourishes; so long as it is not generally considered an economic waste, in the wanton diversion of
money from patronage of legitimate business, to allow absentees to drain it of the earnings of its workers;
80 long as it is not considered gross class privilege to let unmolested gambhng-slot-machine interests
"short change" victims in a deal of one chance in nine hundred, while honest merchants are kept under
espionage; so long as it is not considered socially harmful to an individual to throw away wages needed
for subsistence in patronizing pool rackets that gyp 549 out of every 550, — just so long will there be no
incentive whatever to suppress this form of vice. (See Crime Commission Report (Senate, No. 125, 1934),
pp. 88-95.)
2 For instance, the area of Great Britain is not larger than New England, New York State and part of
New Jersey, and the population of the Dominion of Canada is not twice that of Massachusetts alone.
' At the National Crime Conference in Washington, to be held December 10-13, the Attorney General
will be represented by Assistant Attorney General Jennie Loitman Barron, for presentation, in his behalf,
of the following resolution:
" Whereas, In many jurisdictions in many States, the control over criminal conditions, and the capture
and arrest of criminals is local and exclusive; and
" Whereas, It is necessary to combat lawlessness and organized dangerous banditry, and to capture
and arrest the criminal, either in the act or in the flight; be it
"Resolved, That this National Conference on Crime call the attention of the various police agencies
throughout the several States to the necessity for the creation of an administrative police agency within
each State, systematizing all police departments so that there may be a co-ordination of all police activi-
ties, town, city, county and State; that said co-ordination, while preserving the identity and autonomy
in local administration, will at the same time enable their co-operation with the State and with each other,
for common action and defence against organized crime; be it further
" Resohed, That in pursuance of said recommendation, this National Conference on Crime recommend
the following as a means for enabling co-ordinative and contemporaneous action by all police agencies:
"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 desig-
nated by the Governor, one member to be the Commissioner of Public Safety, four members to be ap-
pointed by the Governor, of whom three shall be responsible officers of police departments of any city or
town in the State.
P.D. 12. 15
and the United States. There has been real progress, then, by bettering this
instance of ineffectiveness of crime control.
But major responsibihty for the control of crime must always remain that of a
State. This means, therefore, that to secure greater effectiveness, the effectiveness
of the agencies responsible for such control, namely, the agencies for prevention of
crime and for detection, apprehension, prosecution and correction of criminals,
must be perfected. Each agency has a whole category of aspects, and therefore
our only hope for achievement must depend ultimately upon the intensive and
intelligent efforts and proposals of persons devoted to problems peculiar to each
agency and upon the conjoint labors of all. Thus, the first invokes the church,
school, press, medicine, recreational and vocational units, and youth movements;
the second and third, the police; the fourth, the bar; and the fifth, the penologist
and psychiatrist.
Already we have many studies and suggestions. However perfect the measures
for prosecution and correction may be, they do not function until after commission
of crime and detection and apprehension of the criminal. Moreover, estimating
the relative force of each, it appears that fear of detection and capture, rather than
of prosecution and conviction, is the greatest deterrent to crime. The list of bandit-
ries, holdups, robberies and of escapes through systematized and organized action
is daily mounting. Consequently, if not for other reasons, measures to perfect
these agencies have rightful precedence in any program.
I later recommend legislation for perfecting these agencies and others.
Malevolence is never mitigated by meagre measures, but, in the final analysis,
no amount of legislation may lave the land of malevolence. Nor, in my opinion,
is poverty prone to pravity, for I have observed more probity in the poor than in
the opulent. The ultimate of benevolence in life is the regenerative power of spirit-
ual precept in individual life.
II. Administration of Civil Matters.
In brief, this service is legal or administrative and applies to every legal civil
matter of whatever nature, transacted by any officer of the Commonwealth or
wherein the Commonwealth is an interested party, or wherein the rights of the col-
lective people are affected, and applies to matters of varying nature recited in stat-
utes and resolves, for administration by the Attorney General. This service
entailed 8,510 matters.
"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 approved 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 im-
portant 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 gun-
men and racketeers in particular.
"(f) 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.
" io) To ascertainment of all facts 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 separate towns and separate cities.
"3. To report to the Governor yearly."
16 P.D. 12.
1, Services in Legal Matters Occasioning Litigation in the Courts.
"Cases tried, argued or conducted."^
A. Cases Decided During the Year.
(1) In the Federal Courts.
(a) United States Supreme Court.
There were two cases. ^
{b) United States Circuit Court of Appeals.
One tax case;^ the Commonwealth was sustained.
(c) United States District Court.
Two bills in equity and two petitions for habeas corpus;^ all dismissed.
(2) In the State Courts.
(a) Supreme Judicial Court.
There were 8 cases ;^ 15 petitions for habeas corpus; the Commonwealth sus-
tained in all. Five cases related to taxes and one to constitutionality. In 7 writs
1 G. L. (Ter. Ed.) c. 12, § 11.
2 Downey and Gallegher v. Hale, 291 U. S. 662. Ex parte Poresky, 290 U. S. 30, petition for writ of
mandamus dismissed; constitutionality of compulsory automobile insurance law sustained.
3 Commonwealth v. Trustee in Bankruptcy of E. E. Gray Co. That a corporation which did business
throughout one year was subject to the Massachusetts corporation excise tax, although it ceased to do
business and was petitioned into bankruptcy prior to the date in the following year when the tax was
assessable; and that such tax was provable in bankruptcy.
* For release from State Prison; against the Governor and the Attorney General.
5 Brady v. Henry F. Lang, Mass. Adv. Sh. (1934) 201. That petitioner for a refund under G. L. (Ter.
Ed.) c. 64 A, § 7, of part of gasoline taxes which he had paid was not entitled to a refund for such portion
as had not been used on the highways of the Commonwealth, where the petitioner could not show with
accuracy what portion was so used.
Newton Building Company v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1934) 417.
That a corporation may not deduct as real estate in determining its corporate excess for purposes of the
excise tax the value of a leasehold interest held by it in land in another State.
Sayles v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1934) 625. That refunds paid
by corporations to holders of bonds, under a covenant to reimburse the holder for Massachusetts income
taxes on the interest from the bonds, is taxable as interest.
Trustees of Boston University v. Commonwealth, Mass. Adv. Sh. (1934) 709. Overruling exceptions of
Commonwealth in award of damages for land takings.
Tirrell v. Commissioner of Corporations and Taxation, Mass. Adv. Sh. (1934) 1689. That certain income
received by a Massachusetts resident from a trustee in another State was taxable at 6 per cent under
G. L. (Ter. Ed.) c. 62, § 11, and not at 1)4 per cent as an annuity under § 5 (a)
Lowell Co-operative Bank v. Co-operatice Central Bank et al., Mass. Adv. Sh. (1934) 1555. Constitu-
tionality of Central Co-operative Bank Law sustained.
Miles V. Commonwealth, Mass. Adv. Sh. (1934) 2081. Overruling exceptions of the Commonwealth
in award of damages for injuries caused by fall of a tree on a State highway.
Treasurer and Receiver General v. Sheehan, executor of estate of Catherine Arnold. That Commonwealth
may recover under G. L. c. 123, § 96, from estates of deceased kindred for the support of inmates in State
institutions. This decision enables recovery of substantial sums now and in the future.
P.D. 12. 17
of error, several mandamuses, and in questions upon referenda, before a single
justice, the Commonwealth was sustained. Innumerable injunctions.
(6) Superior Court.
As plaintiff, principally suits against corporations, counties, municipalities,
estates and individuals relating to collections ^ and restraints; ^ for damage to State
property; as defendant, suits for land damages, ^ for defects in highways,* for
injuries caused by State cars,^ and for controversies in contracts.^
(c) Probate Courts.
In estates, for moneys due the Commonwealth; in appointments of guardians,
for State wards; in probate of wills without survi\nng spouse or known heirs, for
protecting interests of the State and of deceased's relatives,^ the Attorney General
is cited in certain cases where wills are offered for probate.
(d) District Courts.
Various matters, including libels for forfeiture of boats under the Marine Fish-
eries Law.*
B. Cases Pending November 30, 1934.
(1) In the Federal Courts.
(a) United States Court of Claims.
A suit * to recover taxes paid by the Commonwealth to the Federal government.
1 For income taxes; penalties for delays; fees; goods sold by State institutions; concessions at parks;
board and care of persons in State schools; hospitals and institutions; damage to any State property,
armories, forests, piers, etc.
2 For trespass; usurpation of State lands; for nonconformance to statutes regulating particular busi-
nesses and societies.
5 These suits have never been surpassed in volume, caused by prodigious public works projects, and
have exacted assignment of Assistant Attorneys General for such sole purpose, never before required, to
the burden of routine cases; 84 were tried, 108 settled.
* G. L. (Ter. Ed.) c. 81, § 18.
s G. L. (Ter. Ed.) c. 12, § 3B, a duty added in 1931.
5 Controversies as numerous as the volume of contracts, caused by such projects unique in their novelty
of Federal features heretofore not factors.
' G. L. c. 192, § lA, a duty added in 1934 by c. 113. 51 wills examined. Validity of will contested
in one trial.
8 4 in Fall River, 1 in Barnstable, 1 in Salem, and 1 in Hingham.
» 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; tobacco
bought by the Commonwealth for use in State institutions.
18 P.D. 12.
(2) In the State Courts.
(a) Supreme Judicial Court.
There are 13 cases pending, 11 have already been argued; 3 relate to taxes; * the
others- to miscellaneous matters.
(6) Superior and Probate Courts.
Routine suits, mounting in number, relating to miscellaneous matters.^
1 Argued.
State Street Trust Co. v. Tax Commissioner. Whether an income tax valid.
Bryant, Executor, v. Tax Commissioner. Whether an income tax vahd.
Atlantic Lumber Co. v. Commonwealth. Whether a corporate excise tax valid.
Tax Commissioner v. Thayer Bradley Co. Scope of jurisdiction of Board of Tax Appeals in a case that
had been removed to it, under the statute, from the Supreme Judicial Court.
2 Merchants Casualty Co. v. Justice of the Superior Court. Certiorari to review decision of a justice of
the Superior Court.
Smith V. Springfield. Whether city laborer removed without fault under Civil Service Law entitled to
vacation provided for by the statute.
Crossman et als.. Petitioners. Grade crossing abolition in Taunton.
Town of Mount Washington v. Secretary; Wright v. Secretary. Questions on steel trap referendum.
Maker el al. v. Commonwealth. Exceptions of the Commonwealth in award of damages by a board of
referees appointed by the Supreme Judicial Court for areas flooded by the Swift River Valley project.
Barry v. Kennedy. Appeal by defendant, claiming "extras" against the Commonwealth, from decree
and order denying motion to recommit a master's report on a petition to enforce a lien in a road contract.
The Billboard Cases — the most important of all cases — were argued for three days in November,
1933. There has been a long period of litigation. The question involved is the right of the people to regu-
late the placement of billboards by the regulations promulgated in 1920 and 1921 by the Department of
Public Works pursuant to a statute enacted in 1920 (c. 545) under Mass. Const., art. 6, ratified by vote
of the people in 1918; these cases were begun before my tenure, but at no time has the Commonwealth
permitted delay in any stage of the cases. They are five consolidated bills in equity, begun June, 1925,
enjoining the Commissioner of Public Works from enforcing the rules on the ground of unconstitution-
ality of the rules and of the statute authorizing them: "The Commonwealth Case" (13 cases — General
Outdoor Advertising Co., Inc. et als. v. Department of Public Works); "The Chevrolet Sign Case" (Charles
I. Brink v. Department of Public Works); and the "Concord Case" {General Outdoor Advertising Co., Inc.
et als. V. Samuel Hoar et als.). Report of master June 2, 1931; recommitted September, 1931; supple-
mental report filed August, 1932; motion to recommit argued August, 1932; denied May 22, 1933, by
a single justice. May 24, moved to confirm master's report and entry of final decrees; May 25, com-
plainants appealed from denial of motion to recommit; June 23, cases reserved for Full Court; argued
November, 1933. Many months elapsed while matters were under consideration by master and courts.
These 23 outdoor advertising parties were represented by ablest counsel. Meantime they maintained
their boards. The cases were assigned to the then Assistant Attorney General James S. Eastham, who
continued as Special Assistant Attorney General to represent the State in their progress, after his resigna-
tion from the regular staff and after denial by the Legislature of any provision for filling the vacancy.
Probably of all pending cases, this is the one case where my office, on behalf of the plain people, with
meagre means, has fought might and influence. As this report goes to press, the decision is received
supporting the Commonwealth.
Not Argued.
Crane v. Commonwealth. Appeal by plaintiff from finding for the Commonwealth in an action for alleged
extra work under a building construction contract.
Commonwealth v. Benesch et als. Exceptions by defendants in a case where defendants had been found
guilty on indictments of conspiracy to steal and conspiracy to violate the Sale of Securities Act, prose-
cuted by the Attorney General, wherein about $4,000,000 stock was fraudulently sold to the general
public.
' 424 land damage suits alone.
Appeals (2 by the Commonwealth) in 5 industrial accident cases from single member and from the
Board on review.
Commonwealth v. Edgar B. Davis. Perhaps the most important pending in the Superior Court. Bill
in equity to apply assets of defendant in the hands of others to satisfy an execution taken out against
him after the Supreme Judicial Court (284 Mass. 51) had overruled his exceptions to proceedings in an
action of contract, tried in the Superior Court, for recovery of an income tax and in which a Suffolk County
jury returned a verdict for the Commonwealth. Judgment is in the sum of $535,008.53. •
P.D. 12. 19
2. Services in General Legal Matters not Occasioning Litigation.
(a) Contracts and Leases. ^
The number of contracts for approval as to form greatly increased, occasioned
by the public works projects. A large number related to Federal-aided projects,
involving new considerations; many of them, dependent upon action in Washing-
ton, were received, while commencement of work was imminent, and required in-
tensive concentration after hours and week-ends to rush corrections, by various
forwarding agencies, to safeguard the State and to secure all rights to workers, in
order that not a single searcher for work or a single day's pay be delayed on a
single job.
(6) Titles.
Increased purchases and takings of land swelled the number of titles forwarded
for approval. -
(c) Forms of Documents.
Conformance to Federal aid requirements and new type of projects occasioned
extensive redrafts of many existing forms as well as drafts of new ones.
{(i) Legislative Service.
While the Legislature was in session, aid in drafting bills, compilation of data,
advice to representatives and senators, was constant.
(e) Opinions.
The written opinions are annexed. ^
3. Services in Matters Affecting the Commonwealth Occasioning Con-
duct before Various Tribunals.
(a) The Interstate Commerce Commission.
This* was a protest against grant of increase of freight rates petitioned for by
the railroads in New England and trunk line territory. The Commonwealth had
standing in that it is a shipper. The estimated cost to the State, of this increase
in the price of transportation of commodities is $200,000. The tenor of the pro-
test was that increase was unnecessary, in that vast revenues are available by
charging for services of various kinds now maintained by the railroads for favored
sliippers — the cost of which is absorbed into general operating expenses and
1 575 contracts; 111 releases; 38 leases.
2 Though the Legislature has placed responsibility upon the Attorney General to approve all titles,
it has denied him the facilities for search, upon which his approval must be based. The several depart-
ments acquiring land assume the prerogative of selection of their own examiners, whose abstracts are then
submitted to the Attorney General. In two preceding years I have pointed out to the Legislature the
economy and rightfulness of centralization of facihties, with consequent uniformity in and complete library
of abstracts, but the Legislature denied. Approved (382 titles.
« As required by G. L. (Ter. Ed.) c. 12, §§ 9, 11.
• Ex parte No. 115. Before the Interstate Commerce Commission. The hearing was assigned for
December 4. The contention of the Attorney General was that the railroads had revenue available by
imposing charges as they do at Boston, charges for services in handling wood pulp, now gratuitously
maintained at Baltimore and Portland; charges for dockage and lighterage, now gratuitously extended
to shippers at New York; charges for many incidental services, now gratuitously extended in freighting
at coastal points, between car and ship, from which they might derive revenue as they do in freighting
at interior points between car and vehicle on land; charges for many services now tendered steamship
lines gratuitously and at great cost to the railroads.
20 P.D. 12.
assessed upon all shippers. The protest, though appearing to be in opposition to
the railroads, was in fact in aid of both the Commonwealth and of the railroads;
of the former, by fighting increased levies upon the taxpayers for transportation
of food and fuel for humanitarian care of the sick and infirm; of the latter, by
disclosing sources of revenue to enable more work and wages for employees and
more dividends for investors.
(6) The United States Shipping Board.
The Commonwealth, joined by Boston and the Port Authority, filed a com-
plaint^ demanding termination of discrimination against the Port of Boston by
some 96 steamship lines in denying to shippers at the Port of Boston the free time
after cargo discharge and free storage extended to sliippers at the Port of New
York, — a discrimination calculated to the ruin of the Port tlu-ough divergence
of all shipping to New York, to the deprivation of opportunity for work and wages,
and to the vassalage of the people to vested interests.
4. Statutory Service Occasioning Conduct, Legal, Administrative or
Otherwise, as required by Respective Statutes.
1 . Legal Services.
(a) In Due Application of Charitable Trust Funds.
There were 318 occasions for consideration of these trust funds.
(6) For Securing to the State Treasurer Escheats from Estates Administered by Public
Administrators.
Estates of persons who decease, without will or heirs, possessed of property,
are administered by public administrators, and, after payment of debts, are escheat
to the Commonwealth.
It is erroneously assumed that the Attorney General has jurisdiction over public
administrators in their conduct and management of estates. In fact, the sole
relationship of the Attorney General to such administrators is derived from the
statute - requiring him to represent officials of the Commonwealth, and from the
statute'' providing that the State Treasurer shall be made a party to a petition
for administration and be notified of all subsequent proceedings. Any noncon-
formance to law is the responsibility of a District Attorney, but his cognizance
of it is dependent upon notification by a Register of Probate.^
My suggestions for semblance of system in substitute for such slack arrange-
ment have been too frequently denied for repetition, but the occasion for improve-
ment remains.
The sum of $20,137.68 was escheated to the Commonwealth; 9 public adminis-
trators report no estates pending; 45 report 270 pending; and actual cash of
$224,057.78; a total of 955 matters concerning such estates.
1 Commonwealth of Massachusetts, City of Boston and Boston Port Authority v. Brockelbank, Cunard
Lines el als.
2 G. L. (Ter. Ed.) c. 12.
' G. L. (Ter. Ed.) c. 194. § 4.
* G. L. (Ter. Ed.) c. 194, § 16.
P.D. 12. 21
(c) Services in Behalf of Cities and Towns against Sureties of Tax Collectors. ^
This is a service from which the Commonwealth derives nothing, and which
cities and towns may perform for themselves, but do not. It is invoked by the
Commissioner of Corporations and Taxation on his reference to the Department
of all uncollected taxes or, if collected, unaccounted for, two years after the date
of their warrants. It requires constant concern for the clearance of arrears.
Eleven suits are now pending.
(d) Settlement of Small Claims. ^
For relief of legislative attention to resolves for payment of claims, the Attorney
General was authorized to settle all claims for injuries and damages under S1,000,
for any cause for which the Legislature has not authorized the State to be
sued; that is, claims provable in court, like other claims, if a statute permitted.
The Attorney General is empowered, therefore, to make awards as a court
on legal considerations only. Award upon moral and equitable considera-
tions — since it is disposition of the money of the taxpaj^ers — is the sole right
of the Legislature and not the prerogative of any one person. So that settlement
of claims in excess of $1,000 and awardable on moral and equitable considerations
is solely the province of the I^egislature by enactment of resolves. If awards by
the Attorney General are to be expected upon such considerations, the statute
should so authorize, and the appropriation should be increased.
(e) Service ' in Defence of State Employees in Suits for Injuries from Automobile
Accidents.
Numerous actions under the statute providing defence of State emploj^ees sued
for personal injuries arising out of accidents while driving State-owned cars in
the course of duty and for payment of judgments up to 85,000 were disposed of,
with payments aggregating 15,143.
(/) Industrial Accident Cases.
A service,* recently imposed, and no adequate faciUties provided, for repre-
sentation of the State in cases of injured State employees claiming compensation.
Reports have mounted to 100 a month. The ser\ace safeguards the State and
employees and sees that there is due provision for hospital and medical bills.
(g) Approval of Town By-Laws.^
By-laws become valid on approval by the Attorney General. The by-laws,
zoning maps and regulations of 158 towns were passed upon.
(/t) Approval of Rides and Regulations of Various Departments.
New rules and modifications of old rules were occasioned by creation of new
commissions and amendatory powers of old.
1 G. L. (Ter. Ed.) c. 58, § 8.
2 G. L. (Ter. Ed.) c. 12, § 3A. There were 119 claims filed, 47 approved, with a total award of $5,900.74.
Of the 47 approved, 29 were for accidents with State-owned vehicles; 10 from defects in State-owned
property, and 8 from miscellaneous causes.
» G. L. (Ter. Ed.) c. 12, § 3B.
* St. 1933, 0. 315.
» G. L. (Ter. Ed.) c. 140, § 2.
22 P.D. 12.
(i) Service to the Legislature.
While the Legislature was in session, service in drafting and advising upon
bills for legislative members and in rendering data to legislative committees was
extensive.
There were three investigations ordered. ^
(j) Grade Crossing Abolition.
Aside from other service in certain proceedings, tliis service pertains to appor-
tionment of costs as member of a board. ^
2. Administrative Services.
(a) Service on Administrative and Semi-Judicial Boards. '
Membership on various boards exacted much personal time in hearings, \'isita-
tions and conferences from other official duties.
(6) Service for F. E. R. A. and Other Authorities.'^
This service was voluntarily and personally assumed, as no statute is pertinent.
III. Suggestions and Recommendations.
The Attorney General is authorized to make "suggestions and recommendations
as to the amendment and the proper and economical administration of the laws, "^
as well as suggestions and recommendations relative to matters concerning which
he has advised the Legislature or the Governor and Council. This provision
logically finds satisfaction in suggestions for clearance of ambiguities and techni-
calities in existing statutes, as revealed by examination and experience; but I
have conceived the office of Attorney General to be more than that of an attorney,
1 As to pollution by institution sewerage (Res. 1934, c. 27).
As to sanitary conditions around Lake Quinsigamond (Res. 1934, c. 32).
As to sewerage disposition in the South Essex Sewerage District (Res. 1934, c. 49).
2 G. L. c. 159, § 70; St. 1934, c. 357.
' 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 the advisability of licensing contractors and builders and relative to certain matters
relating to contracts for and the employment of persons on public works (Res. 1933, c. 33).
To approve emergency loans to meet extraordinary expenditiures made on the request of County Com-
missioners.
Member of Advisory Commission for Mashpee (St. 1932, c. 223).
Member of Milk Regulation Board (St. 1932, c. 305; St. 1933, c. 273; G. L. c. 94, § 13).
Member of board of appeal on milk and cream dealers' licenses (St. 1933, c. 338).
Access to Great Ponds, G. L. c. 91, § ISA.
Commission on Obsolete Documents (G. L. c. 30, § 42).
An Assistant Attorney General as member of the Millville Finance Commission (St. 1933, c. 341, §§ 1-8)
(Mr. Simoneau).
An Assistant Attorney General as member of Appeal Board on Automobile Compulsory Insurance
(G. L. c. 261, § 8) (Mr. Clapp).
* Under the N. R. A., legal opinion on all town notes must be given by the Director of Accounts; on
notes sold within the Commonwealth, the legal opinion of an attorney in the Director's ofBce is accepted;
on notes sold outside the Commonwealth, the opinion of the Attorney General is required.
To secure Federal grants upon projects, certain certificates of an "acting attorney" were required by
the Federal Emergency Administration of Public Works. In order to facilitate the securing of these
grants and to save expense for legal service, I assumed the capacity as such "acting attorney."
» G. L. (Ter. Ed.) c. 12. 5 11.
P.D. 12. 23
prosecutor and solicitor, faithfully and ably rendering legal service in all matters
affecting the Commonwealth.
I have endeavored to create and develop an added concept, — deri\ang its vital
substance, not in statutes, but in the native majesty of its constitutional office, —
that of a militant tribune of the people and champion of popular rights, in advo-
cacy of measures repelling patrician oppression, and in action protecting from
assail the rights of the commons to enjoyment of life, hberty and the pursuit of
happiness and to equality of opportunity for such enjoyment. ^ The Attorney
General, therefore, is not only capacitated by the statute to make recommenda-
tions as to "amendments" to existing laws and as to "proper and economical
administration of the laws," but is capacitated by \'irtue of his constitutional
office to make recommendations in any realm of social justice. -
1 There have been proposals, particularly to enable the so-called short ballot, as well as to conform to
an alleged similarity with the Federal structure, that the Attorney General be appointed by the Governor.
Never ought such proposal be adopted. There is no analogy whatever between the State and Federal
offices. Under the Federal Constitution the office of Attorney General is not a constitutional one; it is
a creature of Federal statute. The office of the Attorney General in the Commonwealth is the one and
only office with power to represent the people in matters affecting their fundamental rights set forth in
the charters of their liberties, the Constitution of the Commonwealth and the Constitution of the United
States. It is the one and only office which interposes between the arbitrary will of officials of the govern-
ment and the people; for it is the office designated to advise the various officials of the Commonwealth
as to the legality of their conduct in relations with the people. It is the Attorney General who must ap-
pear in the courts and justify himself in the event any person is aggrieved by official conduct advised by
him. As no legal counsel for such officials other than the Attorney General can be recognized in the courts,
his becomes the one and only tongue which by silence or sound may suffer or summon the sole security
of the people against wrongs. Never should such security become spoil. Never should the office of the
Attorney General be beholden to any one person for favored enjoyment. The Attorney General is the
servant of the plain people, and should forever be held answerable to them and to none other. Forsaking
of this" principle surrenders its sovereignty for sacking.
- Recommendations in prior years are examples —
In 1928 Clarification and unification of all proceedings relating to children and domestic relations.
Clarification of laws relating to plumbing.
Recording of automobile conditional sales to avoid futile litigation.
Increase of penalty for killing fowl by poison.
Empowering the Attorney General to summon witnesses.
Institutional care for drug addicts, apart from criminal process.
Regulating overnight camps.
Regulating sale of narcotics.
In 1929 Abbreviation of initiative and referendum questions on the ballot.
Study for general tax reform.
Creating Board of Tax Appeals.
Relief of motor vehicle owners in excise taxes, by fixing year of manufacture as year for valua-
tion and by abatements on change of ownership.
Greater recourse by the courts to psychiatric information in civil as well as in criminal pro-
ceedings.
Compulsory automobile insurance for damage to property as well as injuries to the person.
Making "false swearing" a misdemeanor, eliminating necessity of materiality for proof of
perjury.
Police instruction, standardization of police pay, uniformity in personal equipment, respectable
quarters, and installation of police devices for interstate and intrastate contacts.
Protection of poultry owners against thieves.
Supervision of foreign charitable corporations collecting relief in Massachusetts.
In 1930 Maintenance of accounts by organizations soliciting charities on the street, open to inspection
by Department of Public Welfare.
Power of police officers to arrest without warrant a person operating a naotor vehicle while under
the influence of intoxicating liquors, whether such persons have license to operate in his pos-
session or not.
Training schools for police officers.
Restoration of benefits to widows and dependents and children of call firemen.
Simplification of initiative and referendum questions.
Filing of bonds by brokers and salesmen to indemnify against losses through fraud
Filing of detailed information as condition precedent to sale of securities.
24 p.D. 12.
A. Recommendations Capacitated by Statutes.
1. In "proper and economical administration of the laws."
a. In Criminal Matters.
(1) In the control of crime by detection or apprehension.
(a) That there he an annual conference of every public -police agency for con-
sultation for control of criminal activities.
In 1933, I summoned a conference of every public police agency in the State
for consultation as to measures for co-operation and for co-ordination of their
several facilities. This conference proposed a measure for such co-ordination;
it opposed unification and consohdation of the several departments under State
control. I recommend that legislation enable an annual pohce conference^ for
considering the furthering of mutual efforts in the common cause of suppression
of crime.
Prohibiting brokers from pledging, other than as collateral for bank loans, stock of purchasers
on part payment, to prevent dumping of the stock for market manipulation to the ruin of
the purchaser.
Regulation of " Investment Trusts."
In 1931 Creation of Title Examiner in Department of the Attorney General.
Impartial examination and report by experts as to land valuations in suits for land damages.
Elimination from the election law of the word "pauper."
Payment of old age assistance to all persons entitled thereto, whether or not inmates of insti-
tutions.
Protection of Christmas, vacation and tax club accounts by exemption from restrictions appli-
cable to general deposit accounts.
Prohibiting banks from engaging in general brokerage business in securities and from selling to
trusts and estates, within their control, securities in which they are interested, and prohibiting
officers of banks from becoming officers in corporations engaged in selling securities.
Prohibiting banks from drawing wills and performing legal services, listing "investment con-
tracts" as "securities."
Prohibition of tipster sheets by forbidding advertisements by other than registered brokers.
Requiring agents and brokers dealing in compulsory automobile insurance to keep records,
accessible to the Commissioner of Insurance.
In 1932 Banking reforms and remedying defects.
Extending time for accommodating home owners by co-operative banks.
Enabling co-operative banks to affiliate with the Home Loan Bank.
Exempting violation of traffic regulations from records of crime.
Protection of the people by restriction on collection agencies.
Abolition of right to arrest any person for mere failure to pay costs in service of tax bills.
Control of holding companies under the Department of Public Utilities.
Licensing of cattle and milk dealers.
Right of labor for greater equality of work with wealth produced by it.
Increased penalty for the crime of kidnapping.
In 1933 Forfeiture to the State of all money seized in gambling raids.
Prohibition of imitating court processes and legal papers.
Exemption of wages from attachment up to $20, and no attachment until after court order.
State system of savings bank deposit insurance.
Stays of foreclosure of mortgages on homes.
Encouragement to Massachusetts farmers and dairymen.
Permanent provision for workers incapacitated from gaining livelihood through diseases con-
tracted in occupations.
' This may be accomplished by an act authorizing the Attorney General to call such conference, and
authorizing the heads of every public police agency to attend.
P.D. 12. 25
(b) That there be co-ordination of State and municipal facilities for capturing
criminals.
1 recommend the creation, as proposed by chiefs of pohce in 1933, of a com-
mission for co-ordination of State and municipal facihties for detection and appre-
hension of criminals. '
(c) That Massachusetts make compacts with all other New England States and
New York State for co-operation in capture and prosecution of criminals.
To enable planned co-operation between this Commonwealth and the other
New England States and New York, I recommend interstate compacts under the
provisions of the Congressional Interstate Compact Bill. -
(2) In the control of crime by correction.
(a) That there be study for creation of a tribunal for imposition and disposition
of penalties to effect their purposed efficacy for correction of crime, by eliminating
variances of sentence for similar offences and by utilizing social data.
As one means for more effective control, by more scientific and uniform mode
of imposition and termination of penalties, purposed for deterrence to crime, for
protection of the people by confinement of the criminally disposed, and for cor-
rection of offenders through rehabilitation, I recommend a study toward, or the
creation of, some tribunal — either of the courts or of the courts and lay persons,
> This may be effected by enactment as follows:
An Act relative to Concerted Action for Capture of Criminals by Co-ordination of Police Facilities.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
Section 1. Chapter one hundred and forty-seven of the General Laws, as appearing in the Tercen-
tenary edition thereof, is hereby amended by adding at the end of section thirty-one thereof the following
new section: —
Section 31 A. There shall be an advisory and executive council of police, serving under the governor,
which shall consist of the commissioner of public safety, the captain of the metropolitan district police,
and three members of police departments of cities and towns of the commonwealth appointed by the
governor for terms of three years, with the advice and consent of the council. The council shall be author-
ized to recommend uniform practices of administration, forms of blanks and records, to prepare and effect
plans for the orderly installation or employment of radio and teletype service as may be, to co-ordinate
all police facilities in the commonwealth for concerted action in the detection of crime and the capture
of criminals, and to report to the governor upon his request for investigation of existence or commission
of crime anywhere in the commonwealth.
The members of the council, other than such as may be in the employ of the commonwealth, shall be
allowed the necessary expenses incurred in the performance of their duties, subject to the approval of the
governor and council, to be paid from the treasury of the commonwealth.
Section 2. After the effective date of this act the governor, with the advice and consent of the council,
shall appoint three persons, who shall be heads of the police departments of cities or towns, to serve as
members of the advisory or executive council of police, of whom one shall serve for the term of one year,
one for the term of two years, and one for the term of three years as the governor may designate. Upon the
expiration of their respective terms their successors shall be appointed as hereinbefore provided.
2 Though the Attorney General may prepare for such compacts upon bis own initiative, by negotiating
with the Attorney General of another State, and by later submitting a draft to the Legislature for con-
sideration, it appears to me to be wiser that the Attorney General be authorized to prepare such compact,
so that he may be definitely informed by the Legislature as to the character and extent of matters which
it might ultimately approve, and to the end that not only may he have assurance that his efforts for an
interstate compact are agreeable, but that he may have knowledge of the exact matters concerning which
to negotiate; such as the matter of summoning witnesses in other States essential to prosecution in this;
or witnesses in this State essential to prosecution in others; right of our officers to arrest in other States
persons fleeing from Massachusetts; right of officers of any State to arrest in this State persons fleeing
to Massachusetts, and reciprocal service in the use of all criminal memoranda.
26 P.D. 12.
aided by psychiatrists — for imposition and termination of such penalties and
toward modification of existing penal provisions to harmonize therewith.
(3) In the control of crime by prevention.
(a) That there he a study for rewards for jury service and for selection and assign-
ment of jurors, to effect its purposed efficacy, by impartial and intelligent judgments.
In the phase of prevention, as one means for more effective control, through
further perfecting the efficacy of juries which were purposed to establish justice
by intelligent and impartial judgments, I recommend study toward recognition
of the merits of jury service in civil and criminal cases, through added accommoda-
tions and rewards to jurors, and through selective assignment processes and other
measures, entailing less inconvenience and less likelihood of importunity by
partisans.
h. In Civil Matters.
(1) Effecting clarification in statutes and constitution.
(a) That the mode of incumbency in the office of associate county commissioner
be more definitely provided.
At present the statute ^ forbids the election of a county commissioner and an
associate county commissioner from the same city or town, and provides, in the
event there are candidates for both offices from the same city or town, that the
one receiving the most votes shall be elected. It thus may happen that a candi-
date for associate county commissioner receiving the highest number of votes
for that office may have more votes than a candidate for county commissioner,
resident of the same city or town, receiving more votes than any other candidate
for the office of county commissioner but less in total than the votes received by
the candidate for associate county commissioner. In this event, the associate is
declared elected and the election of the county commissioner is thrown to a candi-
date from another city or town who in fact may have received but few votes.
The primaries further complicate this statutory election, for in the event candi-
dates for both offices run on two tickets, conceivably there may be more than one
candidate for county commissioner and more than one candidate for associate
county commissioner, all from the same city, upon one ticket, and hke candidates
upon another ticket. Under the strict terms of the statute, which forbid two
incumbencies from the same city and prescribe that the one poUing the most
votes be elected, the nomination of candidates for both offices upon one ticket
would be denied, for the reason that even if both received more votes than their
opponents on the other ticket, only one could qualify.
The statute prescribes a mode for fiUing vacancies in event of disqualification,
so caused, to office of associate county commissioner, but none for vacancies so
caused in the office of county commissioner. Conceivably, therefore, at a pri-
mary, a candidate upon one party ticket for associate county commissioner from
a certain city or town may receive more votes than a candidate upon the same
ticket for county commissioner from the same city, and the party would be thus
left \vithout a candidate for county commissioner for lack of pro\ision for sub-
» G. L. c. 54, § 158.
P.D. 12. 27
stituting some candidate of the party resident in some other city or town. Further-
more, in event that the other part}'' should nominate its candidate and he should
be from the same city, the lack of representation at the election would be resented
by the other party, even though the predicament had been accomplished by
original multiplicity of their own candidates for the two offices and by casting a
vote for their candidate for associate county commissioner heavier than for their
candidate for county commissioner.
Under the statute and pecuhar contingencies, the contest for the office of county
commissioner becomes, not a simple rivalry between candidates, but a rivalry
with any contestants for the office of associate county commissioner, resident in
the same city, to disqualify one or the other by polhng the most votes, with
frequent paradoxical results of the rejection of a candidate for the major office
who had defeated other candidates for it, and of election of a candidate to the
minor office who received but a pittance of the votes cast.
I suggest legislative consideration of a mode for incumbency to the offices of
county commissioner and of associate county commissioner, for nomination and
elections, for filling vacancies and for representation of both parties by candidates
for both offices at both primaries and elections. I suggest the appointment of
associate county commissioners ^ as a mode of avoiding experienced predicaments.
(b) That the form of questions and descriptions of laws appearing upon the
ballot be simplified.
The form of questions is prescribed by the Constitution, ^ which appears simple
enough, but which in practice is most confusing. In brief, the form is, "Shall a
law (insert description) approved or disapproved by the General Court (insert
the vote thereon) be approved?" Two events occasion the confusion: first, the
proposal of a law intricate and voluminous, requiring such length and detail of
prescribed description as to cause too concentrated thought for easy comprehen-
sion of the law and for accuracy in answering the question, so suspended ; second,
proposal of repeal of a law, requiring, by the prescribed description and form of
the question, such a double negative as to jeopardize any answer.
The nature of description of laws is prescribed by the Supreme Judicial Court. '
It must be (1) "an impartial statement of the dominant and essential provisions
so that thereby they (the voters) may obtain an accurate conception of its many
characteristics"; (2) "a fair portrayal of the chief features of the proposed law
in words of plain meaning"; (3) "complete enough to convey an inteUigent idea
of the scope and import"; (4) "not clouded by undue detail nor yet so abbrevi-
ated as not to be readily comprehensible"; (5) "free from any misleading state-
ment, whether of amphfication, of omission or of fallacy"; (6) "contain no parti-
san coloring"; (7) "in every particular fair to the voter"; (8) so "that inteUigent
and enlightened judgment may be exercised by the ordinary person in deciding
how to mark the ballot."
In event of proposed laws, often containing many sections and subsidiary pro-
visions, and of constitutional amendments, the sheer necessity of narration of all
' A bill has been filed.
2 Mass. Const. Amend. XLVIII, "The Referendum," III. Form of Ballot.
3 Horton v. Attorney General, 269 Mass. 503.
28 P.D. 12.
the dominant and essential provisions of itself precludes even the first require-
ment, — brevity.
Suggestions for simplification previously advanced, both by me and by the
Secretary of State, were not adopted. Experience has since demonstrated a
demand for simplification. ^
(2) Effecting protection of the people by preservation of their homes against
loss for nonpayment of taxes.
(a) That study be made for enactment of further measures enabling home owners
to redeem their homes taken for nonpayment of taxes and to retain their homes now
under hazard through the demand - for payment of taxes in 1935 earlier than usual.
Under the statute^ which authorized the State to loan money to cities and
towns prior to July 1, 1935, on tax titles taken or purchased by such cities or
towns, payable on redemption, .$15,190,283.11 was loaned. The notes are renew-
able annually. Though $4,399,283.11 has been repaid and is an index presumably
of the capacity of home owners to redeem, there is $10,791,171.28 outstanding.
The present mode of redemption ^ provides for an initial payment of 50 per cent
of the tax for which the property was taken, together with costs, charges, fees and
interest due at the time of payment; and, before the time of petition for fore-
closure (two years from the date of taking), the balance, and a first instalment of
not less than 50 per cent of each year's taxes which may have been added to the
tax title account, and a second instalment of their balance. Upon such payment
the foreclosure of the equity of redemption may be extended one year.* In the
event that foreclosure be imminent, namely, two years from date of taking, there
would have to be very substantial payments on account of the tax for wliich the
land was taken and of the interim taxes, in order to obtain an extension of one
year beyond the original time for foreclosure. I believe the large amount of out-
standing taxes indicates an inabihty which urges immediate action for more
remedial means for redemption, both in instalment percentages and in time of
payment, — such as instalments of 25 per cent, and if the taxes for which land
was taken were paid in full, an extension of time before the three-year limit ex-
pired for payment of such taxes as were added to the account, and an extension
of the same time for redemption from individuals as from a city or town. Under
the statute the payment of taxes in 1935 begins in July. As this demand will
come so shortly after payment of the taxes assessed for 1934, or after payment of
arrears, it is obvious that hardship will ensue. I direct attention to the circum-
stance and urge measures which, after study, may be best calculated for alle\aation.
1 This could be effected in the Constitution by changing the form of question thus: "Shall an amend-
ment to the Constitution or law be approved which provides (abbreviated description)?" Inasmuch as
every voter receives a pamphlet describing the law in full and the arguments for and against it, an abbrevi-
ated description would suffice to identify such law. Simplification could also be effected by changing
the provision in the Constitution which requires that the description of a law upon the ballot shall be
the same as the description printed on blanks for signatures on initiative petitions and referenda.
2 St. 1933, 0. 254.
» St. 1933, c. 49.
< St. 1933, c. 325, § 10.
' G. L. c. 60, § 65.
P.D. 12. 2&
(3) Effecting protection of the people by preservation of their competence against
the extortion of monopohes.
(a) Thai the Attorney General have power to prosecute as well as to restrain any
person effecting a monopoly in articles of common use, or preventing competition and
the free pursuit of any lawful business. ^
Although the Attorney General is authorized- to proceed civillj^ to restrain
monopohes, and though restraint, if ordered, operates as a forfeit for past conduct^
tlirough prohibition of future business, he is not authorized to proceed criminally.
Such authorization, and hea\'y penalties, as well, should be provided for protection
of the people.
(&) That the Attorney General have poiver to restrain as well as to prosecute for
particular acts, persons discriminating in the sale of commodities for the purpose of
destroying the business of a competitor or combining with others for the purpose of
destroying the business of any one and of causing a monopoly.
Although the Attorney General is authorized ^ to prosecute criminally for dis-
criminations and combinations, he is not authorized to proceed to restrain any
business so engaging in the practice. Though forfeiture of business privilege
ensues on conviction, yet contingency of conviction and lapse of prior time enable
continuance in the interim. Restraint would be more salutary.
(4) Effecting protection of the people by preservation of their savings against.
loss in banks.
(a) That insurance of deposits in savings banks and of shares in co-operative-
banks be made permanent.
Last year I recommended insurance of bank deposits, which I had advocated
as early as August, 1933, at the Convention of the Attornej^s General of the United
States at Grand Rapids. Legislation ensued* and administration of sa\'ings bank
deposit insurance was placed in the Mutual Sa\'ings Central Fund, Inc.,* and of
share insurance^ in the Co-operative Central Bank,^ the existence of both of which
will terminate, under provisions of the acts creating them, in about two years.
The duration of the Mutual Savings Central Fund, Inc., ends five years from the
date of its incorporation, March 2, 1932. Its purpose was the creation of an
agency capable of advancing liquid funds to any member bank by way of loan.
It was adopted as the administrative agency of the deposit insurance fund. The
Co-operative Central Bank was designated the administrative agency of the
share insurance fund. By virtue of its existence, the shareholders in three small
1 This may be accomplished by amending G. L. c. 93, § 2, by adding: "Violation of any provision of
this section shall, if the offender is an individual, be punished by a fine of not less than five hundred nor
more than five thousand dollars or by imprisonment for not less than one month nor more than one year,
or both; or, if the offender be a corporation, by a fine of five thousand dollars."
2 G. L. (Ter. Ed.) c. 93, § 3.
' G. L. (Ter. Ed.) c. 93, § 12.
* St. 1934, c. 43.
6 St. 1932, c. 44.
« St. 1934, c. 73.
' St. 1932, c. 45.
30 P.D. 12.
banks, members of the Central Bank, ■will be reimbursed for the entire amount
represented by their shares which they otherwise would have lost in toto.
Provisions should be enacted to continue the existence of both these agencies
to enable the permanency of insurance of deposits in savings banks and of shares
in co-operative banks.
(5) Effecting protection of the people by preservation of their livelihood against
diversion elsewhere of the industry and commerce of the Commonwealth
upon which they depend.
(a) That the Boston Port Authority be strengthened to capacitate it as a recog-
nized, vital and major activity of the Commonwealth, by bestowal of powers and juris-
diction, beyond its present concerns, to all matters essential for promoting policies
for the industry and commerce of the whole Commonwealth.
The Boston Port Authority ^ is a city board, although two members are ap-
pointed by the Governor. The prosperity of the Port is not solely the concern of
Boston. Indeed, it is more the concern of the whole Commonwealth. Since its
establishment, four years ago, this Authority has fought valiantly to further the
prestige of the Port. Traffic has steadily diminished. This is not due to con-
temporary events. The decline was first noted twenty years since. This decline
and untoward trade practices by carriers are graphed in noticeable relation. Ob-
\dously confinement of this Authority to the physical area and properties of the
Port itself isolates it from the very sources from which sustenance must come.
The control and management of Commonwealth Pier and terminal properties of
the Commonwealth and of Boston might be transferred to this Authority, the
revenues derived therefrom be made available for improvement of the Port; the
cost either in part or in whole be borne by the State; and the present powers be
broadened to enable it to fight practices of carriers by sea and land now devastat-
ing it, and to mobilize the forces of Massachusetts for industrial and commercial
aggression.
B. Recommendations Capacitated by the Constitution.
1. As to "the natural essential and inalienable rights ... of enjoying and
defending their . . . liberties."
a. That no man be deprived of his liberty by summary arrest and imprisonment,
to secure paijment of personal fees for serving bills for real and personal taxes, and
to secure payment of such taxes; and that civil proceedings be substituted^
Though previously recommended and denied, I again urge its adoption. I
deem that no man should have right to jail another to secure for himself pay-
1 St. 1929, c. 229.
2 This may be accomplished by enactment of the following:
An Act prohibiting Arrest and Commitment for Non-Payment of Taxes and of Service Fees and provid-
ing for Payment of Such Taxes and Fees through Civil Proceedings.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by authority of the
same, as follows:
Section 1. Section thirty-four A of chapter sixty of the General Laws, as appearing in the Tercen-
tenary edition thereof, is hereby amended by inserting after the word "if" in the third line the words: —
P.D. 12. 31
ment of personal fees for serving legal process. The collection of debts by jailing
was banned long since and this rehc of barbarism should hkewise be. Triple fees
for triple technical items, though for a single service, are sometimes exacted. Men
may be dragged from the workshop and run into jail, though in fact the amount
of tax be illegal and excessive, and though no tax may be due.
b. That study be made for enactment of laws protecting the right of the people to
pursue any legitimate business, free from compulsion, effected by any person or com-
bination of persons, by trade practices, whether or not jmrposing monopoly; and of
laws declaring such trade practices to be against public policy.
Usually the destruction of competition is for the purpose of effecting a monopoly.
Such destruction for such effect is already proliibited. But destruction of busi-
ness is oftener purposed for mere ehmination of a competitor, no monopoly result-
ing. Often conformance to the will of another, by threat and power of trade
recrimination and reprisal, — and not destruction, — is purposed. Suitable pro-
visions for relief and remedies against such trade practices by individuals, singly
or in combination, may best be drafted, after study.
2. As to "the natural essential and inahenable right of . . . seeking and ob-
taining their . . . happiness."
a. That natural resorts be made available to the common people by dedication of
tracts of shore for their enjoyment.
The common people have equal right with all others to happiness by enjoyment
of the natural resources and resorts of the Commonwealth. Private possession
of vast stretches of shore now excludes the general public. The right of all the
people to obtain happiness by such enjoyment may be equalized b}^ purchase or
takings of appropriate sites.
, in case of an assessment on land, the land is not sold or taken therefor within two years from the first
day of October in the year of assessment, or if, — so as to read as follows: — Section 3JfA. A person shall
not be committed to jail for non-payment of a tax, nor shall a person so committed be fvirther detained
therein, if, in case of an assessment on land, the land is not sold or taken therefor within two years from
the first day of October in the year of assessment, or if he gives to the collector or to the officer charged
with the service of the collector's warrant a bond running to the collector sufficient in amount to cover
the amount of the tax and all interest and other charges and fees which are or may become due thereon,
conditioned to pay the same to the collector or officer within thirty days thereafter or within such
further time as the collector or such ofiScer may fix, and with such surety or sureties as the collector
or officer or a master in chancery may approve. A person shall not be committed for such non-payment
until he has been given a reasonable time to procure such a bond.
Section 2. This act shall apply to unpaid taxes heretofore or hereafter assessed.
32 P.D. 12.
IV. Conclusion.
No man should forget that credit for success is not entirely his but others,
without whose help he could have attained nothing. So in the administration of
the office of Attorney General, its merit is due to every one of those who, with
greatest courtesy, abihty and fidelity, have rejoiced in establishing the popularity
and prestige of the office of the People's Attorney General. To the Assistant
Attorneys General ^ I express my gratitude. The innumerable letters of com-
mendation from departments and officials, for service in Utigation or otherwise,
evidence the cordiality of relations, which it has been my policy to maintain, and
their competency of service; the decisions ^ of the Supreme Judicial Court, sus-
taining the Commonwealth in four out of every group of five cases, evidence their
learning in the law.
The other members ^ of the department have been equally zealous in furthering
the common service to the people, and with great pride and praise, I thank them.
1 To Mr. Roger Clapp, executive throughout my administration, for his care and counsel, his logic,
maturity of judgment, and soundness in law.
To Mr. Charles F. Lovejoy, for his acumen and erudition, and for his intensive application to and solu-
. tion of problems, intricate and abstruse, rarely unsustained by our highest court.
To Hon. Edward T. Simoneau, for his deliberation and skill in adjustment of all municipal matters
and for his able conduct of cases, enriched by legislative, executive and judicial service, as Senator, Special
Justice, Mayor and city solicitor.
To Mr. Stephen D. Bacigalupo, for his diplomacy in dealing with difficult matters, his liaison with the
office of His Excellency, and for successes in the Federal and State courts.
To Mr. George B. Lourie, for his ingenuity and alertness, his zeal and success in many varied assign-
ments and confidential missions, equally capable in court as in conference.
To Miss Sybil H. Holmes, for her capable representation of the Commonwealth in trials and in hear-
ings, accuracy of law, and perfect performance in every responsibility.
To Mr. David A. Foley, for his rare resourcefulness, no less able in defence than in prosecution of causes,
both criminal and civil, ever mihtant to uphold the prestige of the Commonwealth.
To Mr. John L. Hurley, for his meticulous attention to matters of great variance; his assiduity and ability
at all times displayed with great merit in the department and in the courts.
To Mrs. Jennie Loitman Barron, for her utter diligence, persistence and legal wisdom, whereby, in
civil and criminal matters of major importance, respect for law was enhanced by favorable verdicts and
findings for the Commonwealth, establishing precedents.
Three Assistant Attorneys General have been elevated to the Judiciary during my incumbency, evi-
dencing the high talent of the department and reflecting honor upon me and the department, — Hon.
Edward T. Simoneau, Mrs. Emma Fall Schofield and Mrs. Jennie Loitman Barron.
2 From June 14, 1928, to January 16, 1935.
^ To Mr. Louis H. Freese, chief clerk, for his thoroughness in supervision of the thousand daily details
of department routine and of details in proceedings against corporations and businesses; a career punc-
tiliously pursued as a public servant for forty-four years in this department, with unsurpassed fidelity.
To Mr. Harold J. Welch, cashier, for his methodical and precise keeping of finances of the department,
with peer nowhere; incomparable as an exacter of accounts, in a service to the State of thirty-one years
without blemish.
To Miss Alice G. Brinn of the stenographic corps, who at great sacrifice to herself, bore the additional
burden as my secretary throughout the six years of my tenure, I express my gratitude for her devotion,
efficiency and service.
To all the members of the stenographic corps for their co-operation, excellence of work, thoroughness
of detail and service of the highest order.
To Mr. Alexander D. Robinson, for his devotion to duty that knew no cessation; as aide to all Attor-
neys General since the time of the Honorable Hosea Knowlton.
To Mr. James J. Kelleher, for his reliableness in every task; for his scholarship in legal search; never
failing once to meet expectations in services rendered as layman and lawyer.
To Miss Marion Higgins, for her superlative operation of the telephone.
P.D. 12. 33
The representatives of the press ' have ever been courteous and accurate in
report.
So I conclude a service which had, as sole client, the Commonwealth. ^
b. Prospect.
The period of my tenure was contemporaneous with the cataclysm caused by
world economic convulsion. The episodes were characterized by despair in the
then existing order, by decry of want in the midst of plenty, and by rightful
demand by those who had earned it for distribution of wealth, much of it amassed
by absentees at no effort, physical, manual or mental.
Forgetful of the fact that foremost place among nations had been achieved by
the initiative of the individual and by the form of government guaranteeing it,
denunciation of the dislocations went so far as to censure every fundamental
of the whole fabric, political, social and economic, and to deride the Constitution
of the United States, from which all our greatness came, as a document favoring
privileged classes, fostering the obsolete philosophy of want in wealth, and frus-
trating the future.
Forgetful, too, of the fact that foremost place had been achieved under the
conscience of the Constitution, denunciation of daring measures to meet distress
went so far as to fetish the letter of the Constitution while ignoring its spirit.
Such forswearing of heritage was as rash as such fervor for form was idolatrous.
But bruits have beatified the spirit of the Constitution. Those who mistook
means for misfortune now perceive our plights were made by man and not by
its mandate. Those who mistook meaning for measures now perceive its mind
as well as its mold. Under it we see the transcendence of the puissance of the
people and the practice of its pristine purpose.
The first words of the first article are the substance of that purpose — equality
and liberty of all men through birthright to seek and obtain happiness, to enjoy
and defend their lives and liberties, and to acquire, possess and protect their
property.
Early was developed rehgious, political and intellectual liberty by separation
' To the members of the State House reportorial staff, for their courtesy and consideration, and par-
ticularly to the liaison officer between the staff and the department, Mr. Daniel O'Connor, for his repor-
torial accuracy and conduct that never broke a confidence.
2 Though no statute prohibits the Attorney General from engaging in legal practice, other than as
counsel or attorney for either party in a civil action depending upon the same facts involved in such prose-
cution or business (G. L. c. 12, § 30), I have, from the day of incumbency, denied myself any private
legal practice and have refused to render any private legal service to any one anywhere or to accept from
any one any money or valuable consideration, and have not had association or identification with any
person concerned with any affair of State, and, particularly, with any persons or attorneys through whom
the disposition of legal transactions could be effected through the Attorney General. Every political
campaign was conducted at my personal expense and without contributions or expenditures in my per-
sonal behalf by any one, other than a few small items, and without subterfuge to a personal campaign
committee. I have never permitted any vested interest to contribute to any nomination or election. I
have never accepted any publicity, activity or service whatever from a single vested interest, for the reason
that, in politics, a favor is exacted for every favor given. I have never accepted money or value for any
addresses or services. All to the end that I might be in fact the people's Attorney General, free to act
without fear or favor and beholden to no one but the people for honor.
To help relieve the burden of taxation, I have administered the office with strictest economy, despite
the tremendous increase of business since 1925. This year the expense was less than $400 more than it
was nine years ago, namely, $88,531.21. Attendance at annual conventions of the Attorneys General,
dues for membership in the Association, maintenance of clippings, and expense of official attendance at
functions have all been met by me personally.
34 P.D. 12.
of church from State, by suffrage and by universal education. Until there be
social and economic hberty, the legacy of liberty lapses at birth. The flesh of no
man was foreordained to fetter the freedom of his fellows. Freemen have right
to live as well as to be born free. Child labor and minimum wage laws struck at
the social shackles of sabotage, but we still see the spectacle of the dwindle of
wages as work grows harder and more disagreeable, where the producer of wealth
gets the least of it. So long as there be one soul enslaved, the struggle for social
and economic security shall seethe.
All men have a right to subsistence. Tliis postulates that all men have right to
means for subsistence and right to security of opportunity to subsist. If the enter-
prise of social relations does not provide it, the State must.
I believe, therefore —
That as all men are born free and equal, they have right to live free and equal.
That all men have inalienable right to subsistence, to means for it, and to
security of it.
That man-made misery has no place in the world.
That mortal good and not mercenary gain must have supremacy.
That the bondage of man by bondage of money must be broken.
That no man has right to wield wealth to another's woe.
That man has right to cure of his body not conditioned upon the degree of his
competence.
That man has right to care of his body in indigency and infirmity.
That youth have right to higher education.
That no youth of talent should be denied the yearning of his nature by State
prescription of a preliminary education therefor which poverty precludes.
That for every man there be a job and for every man only liis own.
That as between men and materials in war, materials must be nationalized
before men are mobilized.
That labor produces all wealth, and rewards should be in ratio to efforts and
to hazards.
That no less is social and economic liberty ; and no less is the conscience of the
covenant of the Constitution.
As the Constitution was much the creature of the legal profession, through
whose ser\dce,more than that of any other, the structure of our nation was originated
and reared, so the bar, whose chief law office I have been pri\ileged to occupy,
understanding the \atal forces at work and holding the ideals of social justice and
liberty to be the true aims of our Constitutions, Federal and State, and seeing their
fated fulfilment in the substance and scope of these charters of our liberties, will
exalt its mission, as from ancient days, and "broadening down from precedent to
precedent" will commode the new order and consummate these ideals.
As 'the faithful na\igator sailing the uncharted and ominous sea came to safe
bourn, with the celestial star for guidon, so, equally faitliful, with the Constitu-
tion for guidon, shall we come securely to altruistic discoveries no less epochal in
1942 than in 1492.
" Old stars do not fade
Nor do alien planets rise,
Whereby man may safely venture
'Neath new skies."
P.D. 12. 35
As we survey the momentous future, teeming with hfe and action, toward
which we are so rapidly and daily swept forward, summoning all to allegiance to
the one Flag, we accept the chaEenge of the mystic generations, who in their day
engloried America with religious, political and intellectual liberty, and we dedicate
ourselves to the daj^ of deliverance from social and economic capti\'ity, "visioned
by the fathers, destined through the ages for our Repubhc — brightest credential
among nations — in her full exaltation of the rights of the people to the enjoy-
ment of "life, liberty and the pursuit of happiness."
And all nations shall call you blessed: for you shall be a delightsome land, saith the
Lord of Hosts. (Malachi III: 12.)
Respectfully submitted,
JOSEPH E. WARNER,
Attorney General.
36
P.D. 12.
Appendix.
Arrests in Massachusetts Cities for Twelve Months ending September 30,
1934 AND 1933.
Class I. — Crimes Against the Person
Assault .....
Manslaughter ....
Murder .....
Robbery, assault to rob and attempt
Other offences ....
Total
Class II. — Crimes Against Property
Breaking, entering and larceny
Fraud, cheating and false pretenses
Larceny .....
Stealing ride and evading fare
Using motor vehicle without authority
Other offences ....
1934
1933
4,468
4,681
172
153
37
66
627
750
542
552
5,846
6,202
2,368
2,355
219
342
6,007
6,271
484
717
614
618
739
756
1,373
1,230
Total
11,824
12,289
Class III. — Crimes Against Public Order, etc.
Drunkenness .........
Gaming and lottery laws, violation .....
Idle and disorderly (including disturbing peace, etc.)
Liquor laws, violation .......
Motor vehicle laws, violation ......
Narcotic drug laws, violation ......
Nonsupport .........
Sex offences (including offences against chastity, decency and
morality) .........
Traffic rules and regulations, violation .....
Tramps, vagabonds, vagrants ......
Weapons, carrying ........
Other offences .........
Total 137,665
Aggregate ........
Automobile registrations for twelve months ending September
30, 1934 and 1933 951,201
83,658
67,096
3,076
2,413
1,783
1,776
1,418
3,016
19,814
21,861
166
151
4,553
3,751
2,043
2,701
10,556
11,690
1,126
1,760
305
397
9,167
8,850
137,665
125,462
155,335
143,953
925,982
P.D. 12. 37
Details of Capital Cases.
1. Disposition of indictments pending Nov. 30, 1933:
Middle District (Worcester County cases: in charge of District Attorney Edwin G.
Norman).
Raki C. Burzuker, alias.
Indicted October, 1933, for the murder of Retzep Idriz, at Worcester, on Oct. 8, 1933;
arraigned Feb. 8, 1934, and pleaded not guilty; trial May, 1934; verdict of guilty
of manslaughter; thereupon sentenced to State Prison for not less than three years
nor more than five years.
Achilea Legor, alias^
Indicted Decembei, 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 Bridgewater State Hospital; Dec. 11, 1933, ordered to
trial; trial June, 1934; verdict of not guilty by reason of insanity; thereupon sen-
tenced to Bridgewater State Hospital for life.
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 Sommer, at Cambridge, on Oct.
20, 1933; Deshler arraigned Nov. 10, 1933, and Bowles on Nov. 13, 1933, and each
pleaded not guilty; Oct. 9, 1934, entry of nolle prosequi as to Bowles; trial of Desh-
ler October, 1934; verdict of not guilty.
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 Donnellon; verdict
of guilty of murder in the first degree as to each; appeal dismissed by Supreme Ju-
dicial Court of Massachusetts (282 Mass. 401) ; petition for certiorari before Supreme
Court of the United States affirmed judgment of the Massachusetts courts and es-
tablished the principle that the defendant has no constitutional right under the
Fourteenth Amendment to the Constitution of the United States to 'be physically
present with the jury at the time of the taking of a view in a criminal case (291 U. S.
97) ; thereupon both sentenced to death by electrocution, which sentence was carried
out Feb. 22, 1934; Garrick later pleaded guilty to manslaughter, which was accepted;
thereupon sentenced to State Prison for not less than eighteen years nor more than
twenty years.
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;
verdict of guilty of murder in the second degree; thereupon sentenced to the Reforma-
tory for Women for life; Dec. 20, 1933, motions for new trial denied; claim of appeal,
claim of exceptions and assignment of errors overruled.
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, which sentence was carried out Feb. 22, 1934.
38 P.D. 12.
Edward T. Stanisiewski.
Indicted in Hampshire County, October, 1933, for the murder of Timothy L. Digging,
at Amherst, on Oct. 11, 1933; arraigned Oct. 17, 1933, and pleaded not guilty;
trial December, 1933; verdict of guilty of murder in the first degree; thereupon
sentenced to death by electrocution; April 25, 1934, commutation of sentence to
imprisonment for life.
Southeastern District (in charge of District Attorney Edmund R. Dewing).
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 pleaded not guilty; trial May, 1933;
disagreement of jury; new trial January, 1934; Jan. 11, 1934, verdict of not guilty
by direction of court.
Ahmed Osman.
Indicted in Norfolk County, April, 1933, for the murder of Nellie Keras, at Norwood,
on Dec. 25, 1932; arraigned April 24. 1933, and pleaded not guilty; trial May, 1933;
verdict of guilty of murder in the first degree; Nov. 29, 1933, rescript "Judgment
on the verdict" on claim of appeal; thereupon sentenced to death by electrocution,
which sentence was carried out Jan. 23, 1934.
Southern District (in charge of District Attorney William C. Crossley).
Louis Gwizdoski.
Indicted in Bristol County, November, 1932, lor the murder of John Roselowitz;
arraigned Dec. 1, 1932, and pleaded not guilty; trial April, 1933; verdict of guilty
of muider in the second degree; Dec. 29, 1933, rescript "Judgment on the verdict"
on claim of appeal; thereupon sentenced to State Prison for life.
Western District (in charge of District Attorney Thomas F. Moriarty).
Stanley Zelenski.
Indicted in Hampden County, May, 1924, for the murder of Zofia Czupek, at Chicopee,
on April 2, 1924; arraigned May 26, 1924, and pleaded not guilty; March 4. 1925,
committed to Bridgewater State Hospital for observation ; Jan. 26, 1934, ordered to
trial; trial March, 1934; verdict of not guilty by reason of insanity; June 25, 1934,
rescript "Judgment on the verdict" on claim of appeal; thereupon sentenced to
Bridgewater State Hospital for life.
Joseph Zygarowski.
Indicted in Hampden County, September, 1923, for the murder of Salomeja Zygarow-
ski, at Chicopee, on July 7, 1923; Oct. 17, 1923, committed to Bridgewater State
Hospital for observation; Dec. 11, 1933, ordered to trial; arraigned Jan. 5, 1934,
and pleaded not guilty; trial March, 1934; verdict of noi guilty by leason of in-
Banity; thereupon sentenced to Northampton State Hospital for life.
2. Indictments found and dispositions since Nov. 30, 1933:
Eastern District (Essex County cases: in charge of District Attorney Hugh A. Cregg).
Louis Berrett and Clement F. Molway.
Indicted January, 1934, for the murder of Charles Fredeiick Sumner, at Lynn, on Jan.
2, 1934; arraigned Jan. 15, 1934, and each pleaded not guilty; tiial February, 1934;
verdict of not guilty by direction of the court.
P.D. 12. 39
Middle District (Worcester County cases: in charge of District Attorney Edwin G.
Norman).
Joseph B. Colella.
Indicted May, 1934, for the murder of Onorio Greco, at Worcestei, on Jan. 19, 1934;
arraigned June 4, 1934, and pleaded not guilty; trial June, 1934; verdict of not
guilty.
Edward A. Cote.
Indicted January, 1934, for the murder of Viola Cote, at Worcester, on Nov. 23, 1933;
arraigned Jan. 25, 1934, and pleaded not guilty; Feb. 8, 1934, retracted former plea
and pleaded guilty to murder in the second degree, which was accepted; thereupon
sentenced to State Prison for life.
Patrick Doyle.
Indicted January, 1934, for the murder of Nellie Doyle, alias, at Clinton, on Dec. 2,
1933; arraigned Jan. 24, 1934. and pleaded not guilty; trial February, 1934; verdict
of not guilty by reason of insanity; thereupon sentenced to Worcester State Hospital
for life.
Angelo Ghenes.
Indicted October, 1934, for the murder of James Gam v as, at Fitchburg, on July 30,
1934; arraigned Nov. 8, 1934, and pleaded not guilty; trial November, 1934; ver-
dict of not guilty.
George H. Sexton.
Indicted May, 1934, for the murder of Andrew Soderholm, at Athol, on Feb. 1, 1934;
arraigned May 23, 1934, and pleaded not guilty; trial June, 1934; verdict of not
guilty.
Clifford B. Smith.
Indicted October, 1934, for the murder of Phyllis Smith, at Athol, on Sept. 27, 1934;
died from self-inflicted wounds before arraignment.
Northern District (Middlesex County cases: in charge of District Attorney Warren
L. Bishop).
Samuel J. Catino.
Indicted March, 1934, for the murder of Alice G. Porter, at Medford, on Feb. 20, 1934;
arraigned March 12, 1934, and pleaded not guilty; trial October, 1934; verdict of
not guilty.
William M. E. Gannon.
Indicted April, 1934, for the murder of Edward Cohen, at Everett, on April 5, 1934;
arraigned April 9, 1934, and pleaded not guilty; May 22, 1934, retracted former plea
and pleaded guilty to manslaughter, which was accepted; thereupon sentenced
to State Prison for not less than three years nor more than six years.
Mitchell J. Gondek.
Indicted November, 1934, for the murder of Paul A. Caouette and Alice S. Caouette,
at Lowell, on June 8, 1934; arraigned Nov. 5, 1934, and pleaded not guilty; trial
December, 1934; verdict of not guilty by reason of insanity; thereupon committed
to Danvers State Hospital for life.
Frank O'Neal, alias.
Indicted March, 1934, for the murder of Adolph Sommer, at Cambridge, on Oct. 20,
1933; arraigned March 14, 1934, and pleaded not guilty; March 15, 1934, entry of
nolle prosequi.
40 P.D. 12.
George Sarnie, Samuel Livingston and Thomas F. Flanagan, alias.
Indicted February, 1934, for the murder of Adoiph Sommer, at Cambridge, on Oct.
20, 1933; arraigned Feb. 13, 1934, and each pleaded not guilty; March 15, 1934,
entry of nolle prosequi as to each.
Nick Taddeo.
Indicted December, 1933, for the murder of Paul Flagg, at Wilmington, on Dec. 9,
1933; arraigned Dec. 14, 1933, and pleaded not guilty; Feb. 27, 19.34, retracted
former plea and pleaded guilty to manslaughter, which was accepted; thereupon
sentenced to State Prison for not less than twelve years nor more than fifteen years.
Northwestern District (in charge of District Attorney Joseph T. Bartlett).
James Suriano.
Indicted in Hampshire County, June, 1934, for the murder of Dominic Frederico, at
Ware, on April 20, 1934; arraigned June 5, 1934, and pleaded not guilty; Oct. 24,
1934, retracted former plea and pleaded guilty to manslaughter, which was ac-
cepted; thereupon sentenced to the house of correction for two and one-half years.
Southeastern District (in charge of District Attorney Edmund R. Dewing).
Manuel Barros.
Indicted in Plymouth County, February, 1934, for the murder of Gladys Banks, at
Carver, on Nov. 24, 1933; arraigned Feb. 21, 1934, and pleaded not guilty; June
13, 1934, retracted former plea and pleaded guilty to murder in the second degree,
which was accepted; thereupon sentenced to State Prison for life.
Everett H. Lester.
Indicted in Norfolk County, April, 1934, for the murder of Frank Yuchon, at Brookiine,
on Feb. 9, 1934; arraigned April 9, 1934, and pleaded not guilty; trial October, 1934;
verdict of not guilty by direction of court.
Constance Simons.
Indicted in Norfolk County, December, 1933, for the murder of an unnamed, new-born
infant, at Wellesley, on May 24, 1933; arraigned Dec. 11, 1933, and pleaded not
guilty; Dec. 27, 1933, retracted former plea and pleaded guilty to manslaughter,
which plea was accepted ; thereupon sentenced to the house of correction for eighteen
months.
rSouthern District (in charge of District Attorney WilUam C. Crossley).
Jalmar Karhinen, alias.
Indicted in Barnstable County, April, 1934, for the murder of Anna Karhinen; ar-
raigned April 17, 1934, and pleaded not guilty; Oct. 11, 1934, 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.
Suffolk District (Suffolk County cases: in charge of District Attorney Wilham J.
Foley).
Francis E. Bennett.
Indicted February, 19.34, for the murder of Victoria David, on Feb. 18, 1934; arraigned
Feb. 26, 1934, and pleaded not guilty; March 19, 1934, retracted former plea and
pleaded guilty to murder in the second degree, which was accepted; thereupon
sentenced to State Prison for life.
Alfred Melchin and Joseph Moulcivitch, alias.
Indicted March, 1934, for the murder of John J. O'Donoghue, on Feb. 19, 1934; ar-
raigned March 14, 1934, and each pleaded not guilty; April 20, 1934, each retracted
P.D. 12. 41
former plea and pleaded guilty to manslaughter, which pleas were accepted ; thereupon
Melchin sentenced to State Prison for not less than ten years nor more than fifteen
years, and Moulcivitch sentenced to the Massachusetts Reformatory for eight years.
3. Pending indictments and status:
Northern District (Middlesex County cases: in charge of District Attorney Warren
L. Bishop).
Claude Taylor.
Indicted October, 1934, for the murder of Stanley J. Watson, at Littleton, on Aug. 23,
1934; arraigned Oct. 17, 1934, and pleaded not guilty.
Julio Ventura, Aniello Orlando, James Penta and Angelo DeVito.
Indicted October, 1934, for the murder of Luigi Girgo, at Wilmington, on Oct. 3, 1934;
arraigned Oct. 11, 1934, and each pleaded not guilty.
Southeastern District (in charge of District Attorney Edmund R. Dewing).
Murton Millen, alias, Irving Millen, Abraham Faber, alias, and Norma Millen.
Murton and Irving Millen and Faber indicted in Norfolk County, February, 1934, for
the murder of Forbes A. McLeod and Francis O. Haddock, at Needham, on Feb. 2,
1934, and Norma Millen indicted as accessory after the fact of both murders; ar-
raigned March 10, 1934, and each pleaded not guilty; trial April, 1934, of Murton
and Irving Millen and Faber; verdict of guilty of murder in the first degree as to
each; July 17, 1934, motions of Murton and Irving Millen to set aside verdict and
for a new trial denied; claim of appeal and assignment of errors of Murton and
Irving Millen and Faber pending; trial June, 1934, of Norma Millen; verdict of
guilty of being accessory after the fact of murder; thereupon sentenced to the house
of correction for one year.
Suffolk District (Suffolk County cases: in charge of District Attorney Wilham J.
Foley).
James J. Coyne, alias, and John J. Moore.
Indicted April, 1933, for the murder of Charles Solomon, on Jan. 24, 1933; Coyne
arraigned March 22, 1934, and Moore Nov. 14, 1934, and each pleaded not guilty;
May 18, 1934, Coyne retracted former plea and pleaded guilty to manslaughter,
which was accepted; thereupon sentenced to State Prison for not less than ten
years nor more than twenty years; Moore awaiting trial.
Nicholas Porazzo, alias.
Indicted April, 1933, for the murder of Michael Richardi, on Jan. 1, 1933; arraigned
May 4, 1933, and pleaded not guilty; trial January. 1934; jury disagreed; awaiting
second trial.
Western District (in charge of District Attorney Thomas F. Moriarty).
Alexander Kaminski and Paul Wargo.
Indicted in Hampden County, December, 1933, for the murder of Merritt W. Hayden,
at Springfield, on Oct. 22. 1933; arraigned Jan. 5. 1934, and each pleaded not guilty;
trial February, 1934; verdict of guilty of murder in the first degree as to Kaminski,
and verdict of guilty of murder in the second degree as to Wargo; thereupon Wargo
was sentenced to State Prison for life, and Kaminski was sentenced to death by elec-
trocution within the week beginning Jan. 20, 1935.
Arm and Santaniello,
Indicted in Hampden County, September, 1934, for the murder of Lena Resigne, at
Springfield, on Aug. 12, 1934.
42 P.D. 12.
OPINIONS.
Metropolitan District Commission — Contract — Payment.
Funds raised by an issue of bonds or notes authorized by a statute for the
expenses of a particular construction project may not be used to pay
expenses of another project authorized by a separate act.
Dec. 2, 1933.
Metropolitan District Commission.
Gentlemen : — You request my opinion as to whether funds raised by
the issue of notes or bonds under St. 1928, c. 240, and St. 1930, c. 398, may
be used in settlement of a claim by a contractor arising in connection with
work authorized under St. 1928, c. 384, the balance of the fund raised
under said chapter 384 being insufficient to make the settlement.
St. 1928, c. 384, authorizes the Commission to do certain work for the
disposal of sewerage from the towns of Canton, Norwood, Stoughton and
Walpole, and provides for an issue of bonds, not exceeding an amount
named, to meet the expenditures of carrying out the provisions of the act.
St. 1928, c. 240, authorizes the Commission, by section 1, to construct
a gravity drainage system for certain sewers in the city of Quincy, and,
by section 3, to expend $150,000 "for the purposes of section one"; and
provides for a note issue, not exceeding said sum, "To meet the expenditures
authorized by section three."
St. 1930, c. 398, authorizes the Commission to construct a sewer connec-
tion for the town of Braintree, and provides for the issue of bonds, to an
amount not exceeding $600,000, "To meet the expenditures necessary in
carrying out the provisions of this act."
In my opinion, the Commission has no authority to use money raised
under St. 1928, c. 240, or St. 1930, c. 398, except for the purpose specified
in each act, i.e., to meet expenditures incurred thereunder. A payment
from funds raised under said chapter 240 or chapter 398 to meet an expendi-
ture incurred under another act, namely, St. 1928, c. 384, cannot, in my
opinion, properly be made.
Very truly yours,
Joseph E. Warner, Attorney General.
Trust Company — Reorganization — Preferred Stock.
"Reorganization" as used in St. 1933, c. 112, §§ 1 and 6, defined. The
minimum capital stock of a trust company required by G. L. c. 172,
§§14 and 18, may consist in whole or in part of preferred stock.
Dec. 12, 1933.
Hon. Arthur Guy, Commissioner of Banks.
Dear Sir : — You have requested my opinion on certain questions
involving the reorganization of a Massachusetts trust company under St.
1933, c. 112, and the issue of preferred stock pursuant to said chapter.
1. Your first question is as follows: —
" Is a reorganization of a trust company, approved by me in accordance
with St. 1933, c. 112, § 1, and involving —
(a) A reduction of capital stock to correct an existing impairment;
P.D. 12. 43
(6) The obtaining of additional capital; and
(c) The charge-off of certain depreciation or admitted losses or the
creation of reserves for certain assets of doubtful value —
a 'reorganization' within the meaning of section 6 of said chapter 112, so
that a trust company so reorganizing may authorize and issue preferred
stock in compliance with the provisions of said section?"
Section 1 of said chapter 112 provides: —
"Whenever in the opinion of the commissioner of banks, hereinafter
called the commissioner, any trust company, organized under general or
special laws, requires reorganization and a plan for reorganization here-
under has been approved by him as fair and equitable to all depositors,
creditors and shareholders thereof and as being in the public interest, such
plan may be carried out under and subject to the provisions of this act,
but nothing herein shall preclude a reorganization in any other manner
authorized by law. Any plan so approved shall become effective upon
such approval, except that if it involves a reduction of amounts due de-
positors and other creditors it shall become effective as provided in section
two."
The authority to issue preferred stock is contained in section 6 of said
chapter, which is as follows : —
"Any trust company reorganizing under this act or resuming business
under section twenty-three of chapter one hundred and sixty-seven of
the General Laws or section eighty-eight of chapter one hundred and
seventy-two of the General Laws, with the approval of the commissioner
and if authorized by vote of stockholders owning a majority of the shares
of stock thereof outstanding and entitled to vote, at a meeting duly called
for the purpose, may issue participating certificates, and preferred stock
of a par value of not less than ten dollars per share, in such amount or
amounts and in such classes, for cash or such other good and valuable
consideration and subject to such provisions, preferences, voting powers,
restrictions or qualifications as shall be approved by the commissioner, and
such a trust company may make such amendments in its agreement of
association or articles of organization, if any, as may be necessary for any
such purpose; but in the case of any newly organized trust company
which has not yet issued capital stock, the requirement of vote of stock-
holders shall not apply but in such case a vote of a majority of the incor-
porators shall be required. Any or all classes of such preferred stock or
certificates provided for herein may be set up upon the books of such
trust company in such manner and in such amounts as the commissioner
may approve."
In order to answer your question the meaning of "reorganization" and
"reorganizing," as those words are used in said sections 1 and 6 of said
chapter 112, must be determined.
The term "reorganization" does not necessarily imply the formation of
a new corporation to take over and carry on the business of an existing
corporation. The formation of a new corporation is a usual part of indi-
vidual and particular reorganizations but it is not a necessary element in
a reorganization. A "reorganization" is defined in Webster's New Inter-
national Dictionary as ''the reconstruction or rehabilitation of a corporation,
especially a railroad, usually effected compulsorily by a receivership and
foreclosure." In discussing "reorganization" the court, in the case of
De Blois V. Commissioner of Internal Revenue, 36 Fed. (2d) 11, 13, said: —
44 P.D. 12.
"Insolvent corporations are ordinarily either reorganized or liquidated.
In liquidation, creditors and stockholders get cash. In reorganizations,
however effected, they get new securities, or else sell their rights. Whether
court proceedings of any kind are found to be a necessary or e.xpedient
means of effecting a reorganization, are, for present purposes, a distinction
without a difference. So, also, is the question whether the old security
holders are required to make payments in cash in order to share in the
securities of the successor corporation. The essential fact is that the right
to share arises from a reorganization; ..."
Any reconstruction or rehabilitation of a corporation which is insolvent
or of a corporation with impaired capital, when the maintenance of an
unimpaired capital is made by statute an essential requirement for its
continued existence, as is the case with trust companies in Massachu-
setts (see G. L. [Ter. Ed.] c. 167, § 22), is a reorganization. It is not
material whether such reorganization is effected through the medium of
a new corporation or through utiHzing and retaining the old corporate
structure.
The language of the first sentence of section 1 of said chapter 112 makes
it clear that such a reorganization need not involve the reduction of amounts
due depositors and other creditors.
It is therefore my opinion that the reconstruction and rehabilitation of a
trust company involving, as stated in your first question, "a reduction of
capital stock to correct an existing impairment, the charge-off of certain
losses, the creation of reserves for certain assets of doubtful value, and the
obtaining of additional capital" is a reorganization or a reorganizing within
the meaning of such words as employed in sections 1 and 6 of St. 1933,
c. 112.
My answer to your first question is, accordingly, in the affirmative.
2. Your second question is as follows : —
"May the minimum capital stock of a trust company, required by G. L.
c. 172, § 18, consist in part, and the stock required by section 14 of said
chapter, for the qualification of directors, consist in whole or in part, of
preferred stock authorized and issued pursuant to section 6 of St. 1933,
c. 112?"
St. 1933, c. 112, § 6, provides, in part, that —
"Any or all classes of such preferred stock or certificates provided for
herein may be set up upon the books of such trust company in such manner
and in such amounts as the commissioner may approve."
Said section 6 also provides that said preferred stock may be issued —
"subject to such provisions, preferences, voting powers, restrictions or
qualifications as shall be approved by the commissioner, and such a trust
company may make such amendments in its agreements of association or
articles of organization, if any, as may be necessary for any such purpose."
In view of the above-mentioned powers of the Commissioner in reference
to determining the nature of preferred stock to be issued, he may provide
that such preferred stock shall be capital stock within the meaning of G. L.
c. 172, § 18, and that ownership of said preferred stock may make the
holder thereof a "stockholder of record holding unpledged stock" within
the meaning of the terms "stockholders" and "stock" as used in section
14 of said chapter 172.
P.D. 12. 45
The provision in the last sentence of section 7 (a) of said chapter 112, to
the effect that "the words 'common stock' or 'capital stock', as used in
this act, shall not include preferred stock or certificates issued under this
act," by its very terms limits the meaning of the words "common stock"
and "capital stock" only as used in that particular statute, and does not
affect the meaning of those words as used in sections 14 and 18 of G. L.
c. 172.
My answer to your second question is in the affirmative.
3. Your third question is as follows: —
"Is any notice to or assent by depositors or other creditors of a trust
company required in connection with a reorganization under St. 1933,
c. 112, which does not involve a reduction of amounts due depositors
and other creditors, as provided by section 2 of said chapter?"
The last sentence of section 1 of said chapter 112 provides that any plan
approved by the Commissioner, as provided in said section, shall become
effective upon such approval, "except that if it involves a reduction of
amounts due depositors and other creditors it shall become effective as
provided in section two." The only provisions for notice to depositors and
other creditors contained in said chapter 112 are found in section 2 of said
chapter, which deals throughout with the procedure for reorganization
involving a reduction of the amounts due depositors and other creditors.
It seems clear from the express language of section 1 that no notice to de-
positors or other creditors is required by said chapter 112 in the case of a
plan for reorganization which does not involve such reduction.
I therefore answer your third question in the negative.
4. Your fourth question is as follows: —
" Is any notice to or assent by the owners of . . . subordinated deposits
who voluntarily accept preferred stock in exchange for their deposits, or
any action by the Supreme Judicial Court, required under these circum-
stances?"
This question is in effect the same as your third question, but in connec-
tion therewith you have in your communication set forth the following
facts upon which you predicate this particular inquiry: —
"Certain trust companies have as part of their deposit liability so-called
'subordinated deposits,' voluntarily made by directors, stockholders or
other parties interested in the welfare of such trust companies, pursuant
to agreements that the ordinary deposit liabilities of such trust companies
may be paid in priority to such subordinated deposits. The owners of such
subordinated deposits have agreed or will agree to accept preferred stock,
issued pursuant to section 6 of G. L. c. 112, in exchange for such subor-
dinated deposits. In each such case a plan for reorganization including
such exchange has been or will be submitted to me under said chapter 112
for my approval as fair and equitable to all depositors, creditors and share-
holders and as being in the public interest."
As stated above, St. 1933, c. 112, § 1, provides that a reorganization
shall be effective upon the approval of the Commissioner unless "it involves
a reduction of amounts due depositors and other creditors," in which case
the provisions of section 2 relative to notice apply. This proviso at the
end of section 1 apphes only to cases where there is a pro rata reduction
of the claims of all creditors and/or depositors. It does not apply to a case
46 P.D. 12.
where a few individual depositors or creditors voluntarily agree to release
their deposits or credit liabilities and accept preferred stock in exchange
therefor. No depositor or creditor can be forced to accept any reduction
of his claim in a reorganization under said section 1. If, however, the pro-
posed reorganization does not involve the requiring of any depositor or
creditor to reduce his claim without his consent or against his desire, the
reorganization may be consummated under the provisions of section 1 of
said act, and the provisions of section 2 of said act are not applicable.
I therefore answer your fourth question in the negative.
As applicable to all your questions, it is apparent that the intent of the
Legislature in enacting said chapter 112 was to give therein a broad mean-
ing to the word "reorganization" which we have been discussing, for the
circumstances surrounding its enactment, as disclosed by its title and pre-
amble (in which latter formula it is expressly declared to be an emergency
law required by the present banking emergency) indicate that the Legisla-
ture meant to provide a flexible means for the restoration to sound con-
dition of trust companies suffering from the consequences of the severe
decline in values which preceded and accompanied the banking emergency
— notably insolvency and impaired capital.
In order to make as easy as possible the carrying into effect of the pro-
visions of this emergency law, it seems plain that the Legislature intended
to make notices to creditors or depositors of any contemplated reorganiza-
tion an essential prerequisite to action only when the interests of such
creditors or depositors were to be adversely affected by the terms of such
reorganization, and did not contemplate the giving of notice in connection
with a reorganization such as is suggested by your question.
Very truly yours,
Joseph E. Warner, Attorney General.
Licenses — Sale of Lacquers containing Wood or Denatured Alcohol.
Licenses mentioned in G. L. (Ter. Ed.) c. 138, § 72, as inserted by St.
1933, c. 376, § 2, include those for the sale of lacquers, etc., containing
wood alcohol or denatured alcohol, and the Department of Public
Health has the duty of licensing all retail dealers in such commodities
irrespective of the former issue of local licenses under G. L. (Ter. Ed.)
c. 138, § 34.
Dec. 14, 1933.
Dr. Henry D. Chadwick, Commissioner of Public Health.
Dear Sir: — You have asked my opinion in connection with G. L.
(Ter. Ed.) c. 138, § 72, as inserted by St. 1933, c. 376, § 2, upon two matters.
1. The first matter as to which you inquire is in substance this: Do the
licenses mentioned in said section 72 include licenses for the sale of lac-
quers, etc., containing either wood alcohol or denatured alcohol?
I assume from the context in which this query appears in your communi-
cation that the "lacquers, etcetera," to which you refer, contain more than
three per cent of the alcohols mentioned in said section 72 and are prepara-
tions used for manufacturing or commercial purposes, and, as would seem
obvious, are not intended for beverages.
G. L. (Ter. Ed.) c. 138, § 72, as amended, reads as follows: —
"The board of health of a city or town may annually grant to persons
who apply therefor licenses for the sale or dealing therein, within such city
P.D. 12. 47
or town, of methyl alcohol or wood alcohol, so called, or denatured alcohol,
or any preparation used for manufacturing or commercial purposes which
contains more than three per cent of any of the said alcohols, and is intended
for use other than as a beverage. The fee for such a license shall be one
dollar. A registered pharmacist may make such sales without such a
license. The state department of public health may annually grant to
persons who apply therefor licenses for the manufacture, sale or dealing
therein, within the commonwealth, and for the importation into and expor-
tation from the commonwealth, of any of such alcohols or preparations,
the fee for which shall be one hundred dollars. Licenses shall be granted
under this section only if it appears that the appUcant is a proper person
to receive the same."
It is plain from reading the foregoing enactment that the preparations
as to which licenses are required, under the terms thereof, comprehend, as
set forth explicitly, any preparation used for manufacturing or commercial
purposes which contains more than three per cent of methyl alcohol or
wood alcohol or denatured alcohol.
Under the assumption of fact which I have made, based upon the text
of your communication, as above set forth, I answer your first question
in the affirmative.
2. The second inquiry in your communication reads : —
"Will you kindly inform me if, under this statute, it is necessary for this
department to license all retail dealers in these articles even should such
dealers possess local licenses to sell wood alcohol, denatured alcohol or
preparations used for manufacturing or commercial purposes containing
more than three per cent of these alcohols?"
Under said G. L. c. 138, § 72, as amended, the duty and power of licens-
ing the manufacture of the alcohols and preparations referred to in said
section devolve upon your department alone. That is a phase of the traffic
in the said alcohols and preparations as to which local boards of health no
longer have any licensing authority. Irrespective of the fact that prior to
the enactment of said St. 1933, c. 376, such authority was vested in them
by G. L. c. 138, § 34, the passage of the statute under consideration has
deprived them thereof and given such authority to your department
exclusively.
Local boards of health still have authority, under the instant statute,
to license the sale of, and the dealing in, the alcohols and preparations
which were formerly the subject of said G. L. c. 138, § 34 (now done away
with), and are now the subject of G. L. c. 138, § 72, as amended, within
their respective cities and towns.
Your department has now been given, by the last sentence of said G. L.
c. 138, § 72, as amended, the power to license such sales and dealings
"within the commonwealth."
In order that the provisions of said section 72 may be given a reasonable
interpretation as a whole, it must be borne in mind that the intention of
the Legislature, as expressed in said section 72, was, as is to be gathered
from the wording of said section, to provide for State-wide licenses, which
might be granted by your department and which would make unnecessary
the issuance of local licenses, duplicating, as to any given locality, the
authority given by the State-wide licenses issued by your department.
Similarly, where a person received and desired only a license from a local
board of health, hmited to a specific city or town, it was not contemplated
48 P.D. 12.
that a further hcense should issue from your department in order that such
person might sell and deal in the specified commodities in such city or town.
It is not to be supposed that the Legislature intended such a duplication
of licenses, especially in view of the setting up of such widely different fees
for the two kinds of licenses. All licensees for the importation and expor-
tation of the aforesaid alcohols and preparations are to be licensed by
your department alone.
The foregoing statements as to the meaning of the statutory provisions
to which you refer fully answer your second inquiry.
Very truly yours,
Joseph E. Warner, Attorney General.
Commissioner of Banks — Trust Company — Resumption of Business.
A trust company permitted resumption of business by the Commissioner,
under G. L. (Ter. Ed.) c. 167, § 23, with removal of previously imposed
conditions, may issue preferred stock under St. 1933, c. 112, § 6.
Dec. 19, 1933.
Hon. Arthur Guy, Commissioner of Banks.
Dear Sir: — You have requested my opinion upon the following
question : —
''Is the resumption of business in full by a trust company, previously
taken into possession by the Commissioner of Banks under G. L. (Ter.
Ed.) c. 167, § 22, and which later was permitted to resume business in part
under authority vested in the Commissioner of Banks by G. L. (Ter. Ed.)
c. 167, § 23, and the complete removal of all conditions, restrictions and
limitations and the discontinuance of all rules and regulations imposed by
the Commissioner of Banks on such trust company in connection with such
partial resumption of business, a 'resumption of business' within the mean-
ing of section 6 of St. 1933, c. 112, so that a trust company so resuming
business may authorize and issue preferred stock in compliance with the
provisions of said section?"
In my opinion, the resumption of business in full by a trust company
previously in the possession of the Commissioner of Banks, which has been
operating under drastic conditions, restrictions and limitations imposed by
the Commissioner of Banks, clearly is a "resumption of business" within
the meaning of said term as used in St. 1933, c. 112, § 6, so that said trust
company may authorize and issue preferred stock in compliance with the
provisions of said section. I accordingly answer your question in the
affirmative.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 49
Hours of Labor for Women and Children — Public Service — Hotels.
Employers engaged in the hotel business are engaged in "public service,"
as those words are used in G. L. (Ter. Ed.) c. 149, § 56, with relation
to working hours for women and children.
Dec. 27, 1933.
Hon. Edwin S. Smith, Commissioner of Labor and Industries,
Dear Sir : — You request my opinion as to whether a hotel is engaged
"in pubHc service," within the meaning of those words as used in section
56 of G. L. (Ter. Ed.) c. 149, which limits with the following proviso the
hours of labor for women and children : —
"In cases of extraordinary emergency or extraordinary public require-
ment, this section shall not apply to employers engaged in public service
or in other kinds of business in which shifts may be required as hereinbefore
stated; but in such cases no employment in excess of the hours hereby
authorized shall be considered as legalized until a written report of the
day and hour of its occurrence and its duration is sent to the department,"
In my opinion, the words "in public service" as used in this particular
statute were intended by the Legislature to include the hotel business, a
business in the maintenance of which the public is interested. It will be
noted that the exemption applies only "in cases of extraordinary emer-
gency or extraordinary public requirement," and that these terms are
limited in meaning by the definition of "extraordinary emergency" given
in section 1 of chapter 149, namely, "danger to property, life, public safety
or pubhc health."
Very truly yours,
Joseph E. Warner, Attorney General.
Commonwealth — Sale of Lands — Departmental Funds.
The proceeds received by a department for the authorized sale of land of
the Commonwealth may not be disbursed by the department but
must be paid over to the State Treasurer.
Dec. 29, 1933.
Hon. Samuel A. York, Commissioner of Conservation.
Dear Sir: — You have requested my opinion in the following communi-
cation : —
"Under G. L. (Ter. Ed.) c. 132, § 34A, 'the commissioner, with the
approval of the governor and council, and after a public hearing, may sell
or exchange any land acquired by the Commonwealth under section thirty
or thirty-three. . . . '
I should like to know, first, whether or not in the case of the sale of any
land purchased for State forests the proceeds resulting from such sale would
be available to this department for reinvestment, or must such money be
turned into the State treasury.
Second, if the money must be turned into the State treasury, is legisla-
tion required to make that sum available to this department?
I am considering at this time the possible sale or transfer of certain
State forest land, and such sale or transfer would depend entirely upon
whether or not the proceeds from such sale or transfer would be available
to this department for reinvestment."
50 P.D. 12.
The proceeds received by you from the sale of land of the Common-
wealth are not immediately available for disbursement by your department
but are required to be paid over to the State Treasurer. In order that
equivalent amounts of money might be made available for the authorized
expenditures of your department thereafter, in addition to sums already
provided, a legislative appropriation would be necessary. See G. L. (Ter.
Ed.) c. 29, §§ 2, 18, 20; c. 30, § 27.
Very truly yours,
Joseph E. Warner, Attorney General.
Milk — Foreign Substance — Vitamin D Concentrate.
Under G. L. (Ter. Ed.) c. 94, § 19, a concentrate of cod-liver oil and cotton-
seed oil may not be added to milk offered for sale for the purpose of
introducing vitamin D in the milk.
Jan. 8, 1934.
Dr. Henry D. Chadwick, Commissioner of Public Health.
Dear Sir: — You have asked my opinion as to whether the sale of milk
to which has been added a vitamin D concentrate prepared from cod-liver
oil may be sold in this Commonwealth, in view of the provision of G. L.
(Ter. Ed.) c. 94, § 19, which reads: —
"No person shall sell any milk to which any foreign substance has been
added."
I confine my opinion to the third method of producing vitamin D in
milk, which you set forth in your communication to me and as to which
your inquiry relates. Upon the facts which you have set forth there is by
this method actually added to milk to be sold a concentrate which —
"differs little in appearance, color, viscosity, etc., from cottonseed oil, the
menstruum in which the actual cod-liver oil concentrate is dissolved. It
possesses no fishy taste or odor. . . .
At the dairy the concentrate is finely dispersed in milk in the proportions
of 1 pound of concentrate to 6,000 quarts of milk. The addition is made
prior to pasteurization. . . .
The finished product differs in no way perceptible to the senses from
untreated milk .... not only is the cod-liver oil concentrate added to
the milk, but also cottonseed oil. This material is added in concentrations
of 1 to 24,000."
It is apparent from all the above and the other facts relative to the con-
centrate which you have set forth in your letter that the residual of the
various processes through which cod-liver oil is passed, dissolved in cotton-
seed oil, is a "foreign substance" which is added to milk, as the words
"foreign substance" are used in said G. L. (Ter. Ed.) c. 94, § 19, and that
consequently the milk to which it has been so added may not be sold under
the provision of said section 19 above set forth.
"Substance" is defined in the Century Dictionary as "any kind of cor-
poreal matter." Certainly, the concentrate described by you is a kind of
corporeal matter. It is obviously foreign to the substance known as milk.
It is immaterial that the concentrate is not injurious. Commonwealth v,
Schaffner, 146 Mass. 512.
It cannot well be said that milk to which the concentrate has been added
has lost its character as milk. The low concentrations of which you have
P.D. 12. 51
written, 1 to 24,000, and the lack of easily ascertainable change in the sub-
stance of the milk, of which you have also written, cannot be said as a
matter of law to produce a new admixture which is not itself milk. Upon
the facts as you have stated them it would not appear as a matter of law
that a change wrought in milk by the addition of the concentrate is com-
parable to the changes wrought which turn milk into butter, cheese, ice
cream or condensed milk.
By reason of the foregoing considerations I am of the opinion that, upon
the facts as you have set them out in your communication to me, by the
mingling of the given concentrate with milk the resulting admixture is
still milk, and milk to which a foreign substance has been added.
Very truly yours,
Joseph E. Warner, Attorney General.
Minors — Employment in Broadcasting — Mercantile Establishment.
Minors may not be employed or permitted to work in broadcasting in a
store, nor in a dancing exhibition in a broadcasting studio where
there is an audience.
Jan. 16, 1934.
Hon. Edwin S. Smith, Commissioner of Labor and Industries.
Dear Sir: — 1. You request my opinion as to whether the employment
by a commercial broadcasting company of children under fifteen "in
dancing, singing, playing musical instruments, recitations, and possibly
in radio plays" is a violation of G. L. (Ter. Ed.) c. 149, § 104.
Said section 104 reads as follows : —
"No person shall employ, exhibit or sell, apprentice or give away, a child
under fifteen, for the purpose of employing or exhibiting him in dancing
on the stage, playing on musical instruments, singing, walking on a wire
or rope, or riding or performing as a gymnast, contortionist or acrobat in a
circus, theatrical exhibition or in any public place, or cause, procure or
encourage such child to engage therein; but this section shall not prevent
the education of children in vocal and instrumental music or dancing or
their employment as musicians in a church, chapel, school or school exhibi-
tion, or prevent their taking part in any festival, concert or musical exhibi-
tion upon the special written permission of the aldermen or selectmen.
Whoever violates this section shall be punished by a fine of not more than
two hundred dollars or by imprisonment for not more than six months."
I assume, from the inclusion of dancing in your question, that there is an
exhibition of some sort in the broadcasting room. If so, there would, in
my opinion, be a violation of section 104 as to dancing, playing on musical
instruments and singing. Whether or not the performance is a "theatrical
exhibition" within the meaning of those words as used in section 104, in
any event I think it would be an exhibition in a "public place," within the
meaning of the statute. As to dancing, the exact conditions are not stated
in your question, but I think that the words "on the stage" (inserted by
St. 1898, c. 394) are not to be construed in such a narrow sense as to render
the statute inappHcable to a dancing exhibition given in a broadcasting
room or studio. As to recitations or taking speaking parts in plays, section
104 does not appear to prohibit this.
If it be assumed that there are no spectators present in the broadcasting
room and that the conditions there are in fact such that the room cannot
52 P.D. 12.
be properly described as "any public place," the performance would not
seem to violate the terms of section 104.
2. You also request my opinion as to whether it is a violation of G. L.
(Ter. Ed.) c. 149, § 60, for a department store on Saturday afternoons to
use the services of children under fourteen in broadcasting either from
the store or from a commercial broadcasting studio located elsewhere,
under an arrangement by which any child in the community is invited to
perform, but not more than once, and the only compensation offered is in
the form of prizes for such children as are voted to have given the best
performance, the purpose of the performance being to advertise the mer-
cantile establishment.
Said section 60 reads as follows : —
"Except as provided in section sixty-nine, no person shall employ a
minor under fourteen or permit him to work in or about or in connection
with any factory, work shop, manufacturing, mechanical or mercantile
establishment, barber shop, bootblack stand or establishment, public
stable, garage, brick or lumber yard, telephone exchange, telegraph or
messenger office, or in the construction or repair of buildings, or in any
contract or wage earning industry carried on in tenement or other houses.
No such minor shall be employed at work performed for wage or other
compensation, to whomsoever payable, during the hours when the public
schools are in session, nor, except as provided in section sixty-nine, shall
he be employed at work before half past six o'clock in the morning or after
six o'clock in the evening."
Where the broadcasting is done from the store, it seems clear that there
is a violation of section 60. Whether or not the children are employed,
within the meaning of the statute (cf. Commonwealth v. Griffith, 204 Mass.
18), they are, in my opinion, permitted to work, within the meaning of the
statute {Commonwealth v. Hong, 261 Mass. 226; Commonwealth \. Griffith,
204 Mass. 18), in or about a mercantile establishment (G. L. [Ter. Ed.]
c. 149, § 1). Where, however, the broadcasting is done from a commercial
broadcasting station not connected with the store, section 60 does not, in
my opinion, cover the case.
"Mechanical establishments" are defined in section 1 of G. L. (Ter.
Ed.) c. 149, as "any premises, other than a factory as above defined, where
machinery is employed in connection with any work or process carried on
therein."
"Mercantile establishments" are defined in the same section as "any
premises used for the purposes of trade in the purchase or sale of any goods
or merchandise, and any premises used for a restaurant or for publicly
providing and serving meals."
A conmiercial broadcasting station as such does not appear to fall
within these definitions, nor is it describable as any of the other places
listed in section 60.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 53
Alcohol — Sales by Pharmacist — Sundays.
A registered pharmacist may sell alcohol as such on Sundays and holidays
for use as a drug or medicine if he has a certificate of fitness, but may
not so sell alcoholic hquors.
Jan. 16, 1934.
Board of Registration in Pharmacy.
Gentlemen: — You request my opinion upon the following questions: —
"1. Can a registered pharmacist sell alcohol on Sundays and holidays:
(a) if he has a certificate of fitness from this Board; (6) if he has a liquor
license from the local licensing authorities?
2. Do sales of alcohol have to be recorded in the Uquor book provided
for by sections SOD and 30E of G. L. (Ter. Ed.) c. 138, as inserted by
St. 1933, c. 376, § 2?
3. Is there any limitation as to the quantity of alcohol a registered
pharmacist may sell?" ,
1. G. L. (Ter. Ed.) c. 138, § 29, as inserted by St. 1933, c. 376, § 2, pro-
vides that a registered pharmacist who holds a certificate of fitness "may
sell alcohol, and, upon the prescription of a registered physician, (1) alco-
holic liquors other than wines and malt beverages, (2) malt beverages,
and (3) wines." In the same section it is provided that —
"The words 'alcoholic liquor' and 'alcoholic liquors', as used in this
and the eight following sections, are hereby defined to mean any Uquor
intended for human consumption and containing one half of one per cent
or more of alcohol by volume at sixty degrees Fahrenheit."
Section 30 A of G. L. c. 138, as amended, provides that a registered
pharmacist may be licensed by the local licensing authorities "to sell
alcoholic liquors for medicinal, mechanical or chemical purposes without
a physician's prescription, except on Sundays or legal holidays."
G. L. (Ter. Ed.) c. 136, § 5, prohibits all manner of business on Sundays;
and section 6 specifies exceptions upon the application of section 5, among
which is included "the retail sale of drugs and medicines, or articles ordered
by the prescription of a physician, or mechanical appliances used by phy-
sicians or surgeons."
The restriction contained in said section 30A as to sales on Sundays and
holidays has no application to the sale of alcohol, which, as appears from
said section 29, is something different from alcohohc Uquor. In my opinion,
a druggist, if he has a certificate of fitness, may sell alcohol on Sundays
and holidays, provided the alcohol sold on Sunday is sold for use as a drug
or medicine. See Commonwealth v. Marzynski, 149 Mass. 68; Common-
wealth V. Goldsmith, 176 Mass. 104.
2. Sales of alcohol do not have to be accompanied by a certificate as
provided for in section 30D, nor recorded in a book as provided for in
section 30E. These two sections apply only to sales of alcoholic liquor by
a Ucensee under section 30A.
3. There does not appear to be any limitation imposed by the statutes
upon the quantity of alcohol which may be sold by a druggist authorized
to seU under section 29.
Very truly yours,
Joseph E. Warner, Attorney General.
54 P.D. 12.
Constitutional Law — Alcoholic Beverages — Sales — Aliens.
Provisions of G. L. (Ter. Ed.) c. 138, § 26, as inserted by St. 1933, c. 376,
§ 2, forbidding sales of alcoholic beverages by aliens are constitutional
and enforceable unless in conflict with an existing treaty between the
United States and a foreign government.
Jan. 23, 1934.
Alcoholic Beverages Control Commission.
Gentlemen: — You request my opinion upon the following questions: —
"1. May an alien obtain a license for the sale of alcohoHc beverages, or
a vehicle permit for the transportation thereof, under G. L. (Ter. Ed.)
c. 138, as inserted by St. 1933, c. 376, § 2, notwithstanding the provisions
of section 26 of G. L. c. 138, as amended?
2. May an alien act as manager or representative of any business li-
censed to sell alcoholic beverages, or be employed therein to sell, serve
or dehver any alcoholic bevei^ges, under the provisions of G. L. (Ter. Ed.)
c. 138, as amended, notwithstanding the provisions of section 31 of G. L.
c. 138, as amended?
3. Does the fact that the alien is in this country under the provisions
of the Treaty of Commerce and Navigation, entered into between the
United States of America and the Kingdom of Italy on February 26, 1871,
affect in any way his right to obtain a license or permit or to be employed
in any such Hcensed business?
4. How should an alien who claims to have come to this country under
the provisions of the said treaty show competent and satisfactory evidence
that he has done so, in order to entitle him to obtain a license or permit or
to be employed in any such licensed business?"
G. L. (Ter. Ed.) c. 138, § 26, as inserted by St. 1933, c. 376, § 2, provides,
in part: —
"No license for the sale of alcohohc beverages and no vehicle permit for
the transportation thereof shall be issued to any person who is not, at the
time of his application therefor, a citizen of the tjnited States, . . .
No provision of this chapter shall impair any right growing out of any
treaty to which the United States is a party."
Section 31 of G. L. c. 138, as amended, provides, in part: —
"No person, except a citizen of the United States, shall be emploj^ed to
sell, serve or deliver any alcoholic beverage."
A provision in the treaty between the United States and Italy (as quoted
in Heim v. McCall, 239 U. S. 175, 193) is as follows: —
"'The citizens of each of the high contracting parties shall have liberty
to travel in the States and Territories of the other, to carry on trade, whole-
sale and retail, to hire and occupy houses and warehouses, to employ
agents of their choice, and generally to do anythfng incident to, or neces-
sary for trade, upon the same terms as the natives of the country, sub-
mitting themselves to the laws there established.'"
The provisions above referred to in sections 26 and 31 are constitu-
tional. Commonwealth v. Hana, 195 Mass. 262, citing Trageser v. Gray,
73 Md. 250. Patsone v. Pennsylvania, 232 U. S. 138. Accordingly,
I answer your questions 1 and 2 in the negative, subject to the qualifica-
tion that the restrictions imposed by said sections do not conflict with
P.D. 12. 55
an existing treaty with a country of which an ahen, whose rights are in
question, is a subject.
The question remains whether the restrictions imposed by sections 26
and 31 conflict with the treaty with Italy. The provisions of this treaty
have been considered by the Supreme Court of the United States in
Patsone v. Pennsylvania, 232 U. S. 138, and Heim v. McCall, 239 U. S.
175. See also Lubetich v. Pollock, 6 Fed. (2d) 237. These decisions seem
to require a ruling that the restrictions in question, imposed by the Legis-
lature in connection with the control of intoxicating liquor, are not in
conflict with the treaty. Accordingly, I answer your third question in
the negative.
In view of my answers to your first three questions it seems unneces-
sary to answer the fourth.
Very truly yours,
Joseph E. Warner, Attorney General.
Drug Store — Employee — Apprentice — Stockholder.
Jan. 26, 1934.
Board of Registration in Pharmacy.
Gentlemen : — You request my opinion upon the question as to whether
an unregistered stockholder in a corporation operating a drug store can,
under G. L. (Ter. Ed.) c. 112, § 30, be employed in any capacity in the
store.
Said section 30 reads as follows : —
"Except as provided in section sixty-five, whoever, not being registered
under section twenty-four or corresponding provisions of earlier laws, sells
or offers for sale at retail, compounds for sale or dispenses for medici-
nal purposes drugs, medicines, chemicals or poisons, except as provided in
sections thirty-five and thirty-six, shall be punished by a fine of not more
than fifty dollars. This section shall not prohibit the employment of
apprentices or assistants and the sale by them of any drugs, medicines,
chemicals or poisons, provided a registered pharmacist is in charge of the
store and present therein ; nor shall it apply to any unregistered co-partner
or unregistered stockholder in a corporation doing a retail drug business
who was actively engaged in the drug business on May twenty-eighth,
nineteen hundred and thirteen."
In my opinion, an unregistered stockholder may work in the store in
the manner set forth in the statute, as an apprentice or assistant, but in
no other capacity, unless he comes within the exception noted in the last
six lines, and as to that, the provision concerning his having been "actively
engaged in the drug business" refers to having taken part in the manage-
ment or direction of such a business.
Very truly yours,
Joseph E. Warner, Attorney General.
56 P.D. 12.
Commissioner of Banks — Administrative Powers — Closed Banks.
The Commissioner has power to estabUsh a central organization for the
supervision of banks in his possession.
Jan. 30, 1934.
Hon. Arthur Guy, Commissioner of Batiks.
Dear Sir : — You have requested my opinion upon the following
questions : —
"1. Has the Commissioner of Banks authority under G. L. (Ter. Ed.)
c. 167, with or without the approval of the Supreme Judicial Court, to
establish a central organization for the supervision of banks in his possession
under said chapter 167, and to apportion the expenses incident thereto
among the specific banks involved?
2. Are the funds coming, into the possession of the Commissioner of
Banks as a result of such apportionment "money received on account of
the commonwealth," within the meaning of section 1 of Mass. Const.
Amend. LXIII and of G. L. (Ter. Ed.) c. 30, § 27, and thus to be paid into
the State treasury?"
Referring to your first question, the Commissioner of Banks, in my
opinion, has the authority to establish this so-called central organization,
under the broad administrative powers vested in him, when in possession
of closed banks, by the various provisions of G. L. (Ter. Ed.) c. 167.
G. L. (Ter. Ed.) c. 167, § 24, provides, in part, as follows: —
"Upon taking possession of the property and business of such bank, the
commissioner may collect moneys due to the bank, and do all acts neces-
sary to conserve its assets and business, and shall proceed to liquidate its
affairs as hereinafter provided. ..."
Section 26 of said chapter provides, in part, as follows: —
"... The commissioner may procure such expert assistance and advice
as he considers necessary in the liquidation and distribution of the assets
of such bank, and he may retain such of the officers or employees of the
bank as he deems necessary. The commissioner shall require from a special
agent and from such assistants such security for the faithful discharge of
their duty as he deems proper."
Section 30 of said chapter provides as follows : —
"The compensation of the special agents, counsel, employees and assist-
ants, and all expenses of supervision and liquidation, shall be fixed by the
commissioner, subject to the approval of the supreme judicial court for the
county where the principal office of such bank is located, on notice to such
bank, and, upon the certificate of the commissioner, shall be paid out of the
funds of the bank in his hands."
In view of the number of banks at present in the possession of the Bank
Commissioner, it appears to be an economically sound practice to conduct
the general supervision and liquidation of the affairs of these banks under a
central organization, utilizing a single group of expert employees, counsel
and assistants, rather than singly. This procedure appears to provide a
more effective supervision and a considerable saving of expense.
You have informed me that in the case of each individual bank in your
possession the Supreme Judicial Court has entered the following decree : —
P.D. 12. 57
"This cause came on to be heard at this sitting upon the petition of the
Commissioner of Banks, and waiver of notice thereon, and was argued by
counsel and thereupon, upon consideration thereof, it is ordered, adjudged
and decreed that the petitioner, as he is Commissioner of Banks, be and
he is hereby authorized and empowered to pay out of the funds of the re-
spondent in his hands the routine expenses incident to the conduct of the
affairs of and the supervision and hquidation of said respondent in his
possession, and from time to time to pay to agents and counsel serving the
respondent, reasonable amounts on account of compensation for services
rendered and expenses incurred, said payments to be subject to confirma-
tion by the court and final compensation to be subject to the approval of
the court before payment thereof, all as more fully set forth in the petition."
By virtue of the provisions of G. L. (Ter. Ed.) c. 30 and of this decree
you have, in my opinion, the authority to apportion the expenses of the
so-called central organization among the several banks receiving services
therefrom, provided that the expenses thus apportioned to each specific
bank are fixed by you and are confirmed by the court in conformity with
the decree referred to above.
I accordingly answer your first question in the affirmative.
Referring to your second question, the funds received by the so-called
central organization by virtue of assessments or apportionments levied
upon the individual banks, in my opinion, remain the property of the said
banks in the possession of the Bank Commissioner to the same extent as if
the Bank Commissioner held these funds as being in possession of each
individual bank. These assessments or apportionments are in the nature
of an advance to an agency created by the Bank Commissioner, for the pur-
pose of supervision and liquidation of banks in his possession, to cover
proper charges and expenses chargeable to each individual bank. Such
funds are not "money received on account of the commonwealth," within
the meaning of Mass. Const. Amend. LXIII, § 1, and the provisions of
G. L. (Ter. Ed.) c. 30, § 27.
I accordingly answer your second question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
Constitutional Law — Intoxicating Liquor — Importation — Citizen.
The provisions of G. L. (Ter. Ed.) c. 138, §§ 2 and 18, as inserted by
St. 1933, c. 376, § 2, are unconstitutional in so far as they purport to
prohibit all importation of intoxicating liquor by a citizen of Massa-
chusetts for his personal use and that of his family and guests.
Feb. 1, 1934.
Alcoholic Beverages Control Commission.
Gentlemen : — You have in effect asked my opinion as to whether a
citizen of Massachusetts, who has not a wholesaler's or importer's hcense
to import, may legally import intoxicating hquor for his own personal use
and that of his family and guests, in view of the provisions of G. L. (Ter.
Ed.) c. 138, §§ 2 and 18, as inserted by St. 1933, c. 376, § 2.
Said section 2 provides : —
"No person shall manufacture, with intent to sell, sell or expose or keep
for sale, transport, import or export alcoholic beverages or alcohol, except
as authorized in this chapter; ..."
58 P.D. 12.
Said section 18, after providing for the issuance of licenses to sell as
wholesalers and importers, further provides : —
"In order to ensure the necessary control of traffic in alcoholic beverages
for the preservation of the public peace and order, the shipment of such
beverages into the commonwealth, except as provided in this section, is
hereby prohibited."
No provision is made in the statute for permitting such a citizen of this
Commonwealth to import liquor for his personal use, purchased from a
dealer in aTiother State or abroad, and such importation is prohibited by
the provisions of sections 2 and 18 above quoted.
The question is whether these provisions of the statute are unconstitu-
tional as being an unauthorized interference with interstate commerce.
The regulation of commerce among the several States and with foreign
countries is a power vested solely in the Congress of the United States
(U. S. Const, art. I, § 8).
If these provisions which are restrictions upon interstate commerce
may be upheld, it can only be under the so-called Webb-Kenyon Act or
under the Twenty-first Amendment to the United States Constitution.
It is clear that prior to the enactment of the Webb-Kenyon Law these
restrictions would have been unconstitutional. In Scott v. Donald, 165
U. S. 58, it was held that (p. 101) —
"... when a State recognizes the manufacture, sale and use of intoxicat-
ing liquors as lawful, it cannot discriminate against the bringing of such
articles in, and importing them from other States; that such legislation
is void as a hindrance to interstate commerce and an unjust preference
of the products of the enacting State as against similar products of the
other States."
See also Vance v. W. A. Vandercook Co., 170 U. S. 438.
The Webb-Kenyon Act, 37 U. S. Stat, at L., pt. 2d, c. 90 (p. 699), enacted
March 1, 1913, is as follows: —
"An Act divesting Intoxicating Liquors of Their Interstate Character in
Certain Cases.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the shipment or transporta-
tion, in any manner, or by any means whatsoever, of any spirituous,
vinous, malted, fermented, or other intoxicating liquor of any kind, from
one State, Territory or District of the United States, or place noncontiguous
to but subject to the jurisdiction thereof, into any other State, Territory
or District of the United States, or place noncontiguous to but subject to
the jurisdiction thereof, or from any foreign country into any State, Terri-
tory, or District of the United States, or place noncontiguous to but sub-
ject to the jurisdiction thereof, which said spirituous, vinous, malted, fer-
mented, or other intoxicating liquor is intended, by any person interested
therein, to be received, possessed, sold, or in any manner used, either in the
original package or otherwise, in violation of any law of such State, Terri-
tory, or District of the United States, or place noncontiguous to but sub-
ject to the jurisdiction thereof, is hereby prohibited."
This statute does not purport to delegate to the States the power to
prohibit importation of liquor; but itself prohibits importation in cases
where such liquor is intended to be received or used contrary to the State
laws. The Webb-Kenyon Act, accordingly, seems to furnish the Com-
P.D. 12. 59
monwealth of Massachusetts with no authority to enact the provisions
against importation here in question.
Moreover, the purpose of the Webb-Kenyon Act was to aid the so-
called dry States in enforcing prohibition, or "to prevent the immunity
characteristic of interstate commerce from being used to permit the re-
ceipt of liquor through such commerce in States contrary to their laws,
and thus in effect afford a means by subterfuge and indirection to set
such laws at naught." Clark Distilling Co. v. Western Maryland Ry. Co.,
242 U. S. 311, 324. It was not the purpose of the act to enable a State,
whose law permits the general sale and use of intoxicating liquor, to
restrict interstate commerce in such liquor. The provisions of the Mas-
sachusetts statute here in question are inserted in a statute passed for
the purpose of authorizing, instead of prohibiting, the sale of intoxicating
liquor. These provisions permit a citizen to purchase foreign-made liquor
for personal use from a dealer within the State, but prohibit commerce
between such a citizen and a dealer in another State or country. This
is in conflict with the law as stated by the United States Supreme Court
in Scott V. Donald, above referred to. The Webb-Kenyon Act did not
have the effect of repealing all the law relating to interstate commerce.
It changed that law only to the extent necessary for the purposes in
view. Adams Express Co. v. Kentucky, 238 U. S. 190, 199. That being
so, the statement of the law above quoted from Scott v. Donald, in my
opinion, still stands. Under that statement the provisions in the Massa-
chusetts statute prohibiting importation are invalid.
There seems to be nothing inconsistent with this view in Clark Dis-
tilling Co. V. Western Maryland Ry. Co., supra, or in any other case which
has come to my attention. In the Clark Distilling case the State statute
prohibited the manufacture or sale of intoxicating Hquor within the
State and the transportation of liquor within the State, and the receipt
and possession of liquor so transported. The prohibition, as the court
points out, was upon acts performed within the State, and in no way
was more burdensome upon interstate than upon intrastate commerce.
Nor, in my opinion, is the situation changed by the Twenty-first
Amendment to the United States Constitution. Section 2 of the amend-
ment is as follows : —
"The transportation or importation into any State, Territory, or Pos-
session of the United States for delivery or use therein of intoxicating
liquors, in violation of the laws thereof, is hereby prohibited."
This provision, although more concise, is in substance and form the
same as the Webb-Kenyon Act. Like the Webb-Kenyon Act, the amend-
ment does not purport to delegate to the States the power to prohibit
imports but itself imposes such prohibition in the cases specified, namely,
where the delivery or use within a State is in violation of the laws thereof.
The purpose of the amendment is no different from that of the Webb-
Kenyon Act. The reason for inserting the provision in the Constitution
was to remove the protection afforded the so-called dry States by the
Webb-Kenyon Act from the hazard of legislative change.
In reference to the meaning of the Webb-Kenyon Act the United
States Supreme Court has said, in Adams Express Co. v. Kentucky, 238
U. S. 190, 199: —
"It would be difficult to frame language more plainly indicating the
purpose of Congress not to prohibit all interstate shipment or transporta-
tion of liquor into so-called dry territory and to render the prohibition of
60 P.D. 12.
the statute operative only where the liquor is to be dealt with in violation
of the local law of the State into which it is thus shipped or transported.
Such shipments are prohibited only when such person interested in-
tended that they shall be possessed, sold or used in violation of any law
of the State wherein they are received. Thus far and no farther has
Congress seen fit to extend the prohibitions of the act in relation to in-
terstate shipments. Except as affected by the Wilson Act, which permits
the state laws to operate upon liquors after termination of the transpor-
tation to the consignee, and the Webb-Kenyon Act, which prohibits the
transportation of liquors into the State to be dealt with therein in vio-
lation of local law, the subject-matter of such interstate shipment is left
untouched and remains within the sole jurisdiction of Congress under
the Federal Constitution."
This statement of the United States Supreme Court in construing the
Webb-Kenyon Act seems equally applicable to the constitutional amend-
ment, which is cast in the same form as the act and was drafted for the
same purpose.
In my opinion, the provisions against importation contained in sec-
tions 2 and 18 of G. L. (Ter. Ed.) c. 138, as inserted by St. 1933, c. 376,
§ 2, are invalid in so far as they prohibit all importation of intoxicating
liquor by a citizen of Massachusetts for his personal use and that of his
family and guests, inasmuch as they violate the provisions of the Federal
Constitution with relation to interstate and foreign commerce.
Very truly yours,
Joseph E. Warner, Attorney General.
Insurance — Policy — Approval.
The Commissioner has no authority to approve a policy, supplementary
to a life policy, which provides for additional special benefits to the
holder consequent upon the death of the insured.
Feb. 2, 1934.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir : — You have laid before me a contract of insurance called
"Child's Protection Supplementary Policy" and have advised me in
effect that heretofore it has not been your practice to approve similar
supplementary contracts, "on the ground that the approval of such con-
tracts does not seem to be authorized by the statutes." You have asked
me if, in my opinion, you are authorized to approve the said "supple-
mentary policy."
I am of the opinion that the practice which you state you have been
following is correct, and that you are not authorized to approve the
instant "supplementary policy."
The power of the Commissioner of Insurance to approve poHcies sup-
plementary to original life policies is contained in G. L. (Ter. Ed.) c. 175,
§ 24, which section reads: —
"Any life company, whether or not it is authorized to transact acci-
dent and health insurance under clause sixth of section forty-seven, may
provide in its policies of hfe, group life or endowment insurance, issued in
compliance with this chapter, for the payment of an accidental death
benefit consisting of a larger amount if death is caused by accident than
if it results from other causes, and may incorporate therein or in its annuity
P.D. 12. 61
or pure endowment contracts, issued in like compliance, provisions for
the waiver of premiums or for the granting of special benefits in the event
that the insured, or either of them, or the holder, as the case may be,
becomes totally and permanently disabled from any cause. Such provi-
sions shall state the special benefits to be granted thereunder, the cost
thereof to the insured or to the holder and shall define what shall consti-
tute total and permanent disability. The consideration for any benefits
granted under this section shall be stated separately in the policy or
contract.
Any such company may, in conjunction with and supplementary to
any- policy of life, group life or endowment insurance or annuity or pure
endowment contract, issue a separate policy providing solely for any or
all of the benefits permitted by this section. No such separate policy 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, unless
before the expiration of said thirty days he shall have approved the form
of the policy in writing; nor if the commissioner notifies the company in
writing, within said thirt}^ days, that in his opinion the form of the policy
does not comply with the laws of the commonwealth, specifying his reasons
therefor; provided that such action of the commissioner shall be subject
to review by the supreme judicial court.
The provisions of section one hundred and eight shall not apply to any
policy of life, group life or endowment insurance or annuity or pure en-
dowment contract or separate policy or contract providing for any or all
of the benefits permitted by this section."
This power of approval is limited by said section to the approval of
supplementary policies "providing solely for any or all of the benefits
permitted by this section" (said section 24). The benefits permitted by
the said section are enumerated in the first paragraph thereof and consist
of (1) payment of an accidental death benefit consisting of a larger amount
if death is caused by accident than if it results from other causes, and (2)
waiver of premiums or granting of special benefits consequent upon the
total and permanent disablement of the insured or the holder of the
original policy.
The benefits provided by the instant supplementary contract consist
not in a waiver of premiums or in other payments or benefits consequent
upon total and permanent disablement, but consist in a waiver of premiums
consequent upon death. "Death" and "total and permanent disablement,"
as those words are used in G. L. c. 175, are not synonymous.
G. L. (Ter. Ed.) c. 175, § 132, relative to the approval of policies, con-
tains no grant of authority to you which would authorize your approval
of the instant "supplementary policy," and I find no other provision of
the statutes which would do so.
Very truly yours,
Joseph E. Warner, Attorney General.
Department of Labor and Industries — Rules — Municipal Building.
Feb. 14, 1934.
Hon. Edwin S. Smith, Commissioner of Labor and Industries.
Dear Sir: — You request my opinion as to whether sections 2 (1) and
3 (1) of the rules of the Department of Labor and Industries, relating to
62 P.D. 12.
structural painting, apply to painting done by a city hospital, through
one of its employees, upon a building occupied by it.
Said sections of the rules are as follows : —
"Section 2. (1) No person or firm shall employ any person in any
structural painting operation in connection with which any rigging is used
unless a written statement, containing a list of all rigging so used, has been
filed with the Department within the year ending on the date of such
operation."
"Section 3. (1) Every person or firm employing one or more persons
in any structural painting operation in connection with which any rigging
is used shall employ at least one person qualified as a painter's rigger by
having satisfactorily passed an examination prescribed by the Department,
unless the employer or a member or officer of such firm is so qualified."
In my opinion, these rules have no application to the specific work to
which you refer, inasmuch as the same is being carried on by a city hospital.
Very truly yours,
Joseph E. Warner, Attorney General.
Hours of Labor — Contract — Federal- Aided Projects.
The eight-hour per day restriction in G. L. (Ter. Ed.) c. 149, § 30, embodied
in a contract with the Commonwealth, must be observed by con-
tractors even if the work is subject to the National Industrial Recovery
Act.
Feb. 15, 1934.
Emergency Public Works Commission.
Gentlemen : — You request my opinion as to whether laborers em-
ployed under contracts made by the Commonwealth in connection with
projects under the National Industrial Recovery Act and St. 1933, c. 365,
may work for ten hours per day, not exceeding thirty hours per week, pro-
vided that such hours "meet with the approval of the Federal authorities."
G. L. (Ter. Ed.) c. 149, § 30, restricts the services of all laborers, workmen
and mechanics employed by any contractor upon any works of the Com-
monwealth to eight hours in any one day and to forty-eight hours in any
one week, except in cases of extraordinary emergency; and a provision so
restricting the hours of labor has been inserted in the contracts to which
you refer.
Section 206 of the Industrial Recovery Act provides that all contracts
let for construction projects shall contain a provision that "so far as practi-
cable and feasible, no individual directly employed on any such project
shall be permitted to work more than thirty hours in any one week"; and
a provision to the same effect, prescribed by the Federal Emergency
Administration of Public Works (created by the President of the United
States under authority of section 201 A of the Industrial Recovery Act),
reads as follows : —
"(6) Thirty-hour week. — Except in executive, administrative, and su-
pervisory positions, so far as practicable and feasible in the judgment of
the Government Engineer, no individual directly employed on the proj-
ect shall be permitted to work more than 30 hours in any 1 week: Pro-
vided, That this clause shall be construed to permit working time lost
because of inclement weather or unavoidable delays in any 1 week to be
made up in the succeeding 20 days.
P.D. 12. 63
This provision shall for the purposes of this contract supersede the
terms of any code adopted under title I of the National Industrial Re-
covery Act."
This provision has also been inserted in the contracts to which you
refer.
In my opinion, the eight-hour per day restriction imposed by G. L.
(Ter. Ed.) c. 149, § 30, and incorporated as a term of the contracts is
effective and must be observed by the contractors. The Federal govern-
ment has neither by statute nor by rules promulgated by the Federal
Emergency Administration of Public Works made any provision incon-
sistent therewith.
It is provided in section 2 of St. 1933, c. 365, that —
"Such projects, so approved, shall be carried out in all respects subject
to the provisions of said Title II (of the National Industrial Recovery
Act) and to such terms, conditions, rules and regulations, not incon-
sistent with applicable federal laws and regulations, as the commission
may establish, with the approval of the governor, to ensure the proper
execution of such projects."
I understand from your reference to "the approval of the Federal
authorities" that you mean merely that some representative of the Fed-
eral government overseeing the work is willing that the contractor should
employ men for ten hours per day. I do not understand that any regu-
lation has been adopted by the Federal Emergency Administration of
Public Works supplementing the thirty-hour week provision, above re-
ferred to, in respect to hours of labor per day, or that your Commission
has established any rule permitting employment for ten hours.
Of course, if an extraordinary emergency is found to exist requiring
ten hours per day labor on some particular contract, the eight-hour
restriction contained in G. L. (Ter. Ed.) c. 149, § 30, is by the terms of
that section inapplicable. I do not understand from your question that
either the Federal authorities or your Commission considers that such
an emergency exists.
Very truly yours,
Joseph E. Warner, Attorney General.
Contract for Public Work — Bond — Preferences.
Under the terms of the bond given to secure contracts for public work
laborers and materialmen are given priority in action thereon.
Feb. 23, 1934.
Emergency Public Works Commission.
Gentlemen : — You have submitted to me copies of the following : —
Letter dated January 31, 1934, to all State engineers, signed Harold L.
Ickes, Administrator;
Form of labor bond referred to in said letter of January 31, 1934; and
Letter of February 14, 1934, to you from Harold R. Gow, State En-
gineer P. W. A., by Frank E. Lenane, Executive Assistant.
You request my opinion as to whether or not the bond required with
State contracts for construction is written primarily for the benefit of
laborers and materialmen and gives them the first right of action on
the bond.
64 P.D. 12.
In the letter of February 14, 1934, from Mr. Gow, quoting, in part,
from a letter received by him from the Administrator's office at Wash-
ington, "If the bond usually required is written primarily for the benefit
of laborers and materialmen, giving them the first right of action on the
bond, a separate labor bond need not be written," Mr. Gow concludes:
"Therefore it will be necessary for the contractor to furnish a separate
labor bond."
I respectfully disagree with that conclusion of the State Engineer
P. W. A., and am of the opinion that a bond in the form of the bond now
accompanying our State contracts does give the first right of action to
laborers and materialmen. My opinion is based upon the conclusion of
the court in the case of J . H. McNamara Inc. v. McGuire, 254 Mass. 589.
In that case claims against the contract were filed by various laborers
and materialmen. The bond was sufficient to pay those claimants in
full if the city was not permitted to enforce a claim which it had under
the same bond, but the amount was insufficient in a large amount if the
city shared and had priority. The amount also was insufficient if the
city and the lienors shared pro rata in the amount recovered. The deci-
sion in that case reads, in part, as follows (p. 594) : —
"There has been a breach of the bond. The question is, to whose
benefit the recovery enures. The Legislature cannot have intended that
the person upon whom it placed the duty to secure 'sufficient security'
for the payment 'for labor performed or furnished and materials used'
should be permitted so to use that security for his own benefit as to ren-
der it insufficient for the payments for labor and material. The law will
not permit it. Where the law requires one person to obtain security for
the benefit of others, that person cannot himself share in it until those for
whom he is bound to obtain it have had the full benefit intended to be
secured to them.
The city contends that it cannot be responsible if its officials take
security which proves to be insufficient. This is aside from the point. The
point is that the city cannot render what has been obtained as security
under the statute insufficient by taking so much for itself that the re-
mainder falls short of satisfying the statutory beneficiaries.
The decision in Friedman v. County of Hampden, 204 Mass. 494, that
lienors took precedence of any assignment by the contractors, supports
this position.
The decree, therefore, is right in so far as it determines that the surety
is liable to the claimants, and that the latter take priority to the city in
their claims against the surety."
Very truly yours,
Joseph E. Warner, Attorney General.
City — Sale of Firearms — License.
A license to purchase a revolver is not required in connection with the
sale of such a firearm to a municipality.
Feb. 24, 1934.
Brig. Gen. Daniel Needham, Commissioner of Public Safety.
Dear Sir: — You have asked my opinion upon the following question
relative to the purchase of revolvers by a municipality: —
p. D. 12. 65
"An opinion is requested as to the right of a municipahty to purchase
firearms under the following conditions:
A municipality purchases a revolver at a store, not to be given to any
particular individual, but to become the general property of the town.
One such revolver was purchased by the chairman of a board of selectmen.
Is such a purchase and sale in violation of G. L. (Ter. Ed.) c. 140, §§ 121-
131B, inclusive?
... Of course, a city or town cannot be given a license to carry, and
therefore it would appear that the only authority for the purchase in
question would be under the wholesale clause of section 121. ..."
A sale of a revolver to a city or town is not a sale at "wholesale," within
the meaning of the last sentence of G. L. (Ter. Ed.) c. 140, § 121, which
excepts sales so made from the regulations upon sales of firearms con-
tained in sections 122-129 of said chapter 140. A municipality as such
has no power to engage in the business of buying firearms for the purpose
of resale; which purpose is of the essence of a "wholesale" transaction,
as the words are used in said section 121.
Chapter 140 provides, by sections 122-131A, inclusive, for the issuance
of a license to sell firearms, including revolvers, one of the conditions of
which is that the licensee will not sell to a person who has not a permit to
purchase; and also provides for the granting of a licensie by designated
authorities to a "person" to purchase, provided such "person" is one
qualified to be granted also a license to carry a revolver, the issuance of
which under certain conditions is provided for.
No mention is made in our statutes relative to sales of revolvers or other
firearms to cities or towns. Such municipalities are not comprehended by
the use of the word "person" or "persons" in the said sections. There
appears to be no prohibition upon the sale of revolvers to such municipali-
ties by licensed dealers. It would seem that the conditions of the license
to sell, prescribed in section 123 of said chapter 140, have no application
to sales to municipalities, in so far as their requirements are inapplicable
to a transaction with a customer of such a type.
The Legislature may well have thought that the exercise of the police
power, as set forth in the above-mentioned sections, was not such as should
properly be extended to cities and towns, which, as political subdivisions
exercising some measure of the sovereign power, should not be restricted
in the purchase of necessary weapons for civic protection. In any event,
the General Court has not in any of our statutes employed language denot-
ing an intention to subject such municipal bodies to those regulations
which it, exercising the police power of the Commonwealth, has imposed
upon individuals with relation to the purchase of revolvers.
Very truly yours,
Joseph E. Warner, Attorney General.
Pharmacist — Alien — Alcoholic Beverages.
A registered pharmacist who is an alien may sell alcoholic beverages upon
prescription only.
March 5, 1934.
Hon. James M. Hurley, Commissioner of Civil Service.
Dear Sir: — You request my opinion upon the following question: —
"Can a druggist who was registered previous to the law requiring that a
registered pharmacist be a citizen, and who is still an alien now conducting
66 P.D. 12.
a drug business, be issued a certificate of fitness under G. L. (Ter. Ed.)
c. 138, § 30, as inserted by St. 1933, c. 376, § 2?"
G. L. (Ter. Ed.) c. 112, § 24, provides that a person who desires to do
business as a pharmacist may be examined by the Board of Registration
in Pharmacy and, if found quaUfied, shall be registered as a pharmacist
and shall receive a certificate of such registration. By an amendment to
said section 24, made in 1924 (St. 1924, c. 53), it is provided that —
"No certificate shall be granted under this section unless the applicant
shall have submitted evidence satisfactory to the board that he is a citizen
of the United States."
G. L. (Ter. Ed.) c. 138, § 29, as inserted by St. 1933, c. 376, § 2, provides
that a registered pharmacist who holds a certificate of fitness under section
30 may use and sell alcohol and, upon prescription, sell alcohoUc liquors.
Section 30 reads, in part, as follows: —
"The board of registration in pharmacy may, upon the payment of a
fee of not more than five dollars by a registered pharmacist who desires to
exercise the authority conferred by section twenty-nine, issue to him a
certificate of fitness, which shall not be valid after one year from its date,
stating that in the judgment of said board he is a proper person to be in-
trusted with such authority and that the public good will be promoted by
the granting thereof. ..."
An alien who was registered prior to the amendment of 1924 is a "reg-
istered pharmacist," and therefore under the terms of section 30 of said
chapter 138, as amended, the Board seems to be authorized to issue to
him a certificate of fitness, provided that in the judgment of the Board
he is a proper person and the public good will be promoted.
This conclusion does not appear to be affected by the provisions of
sections 26 and 31 of said chapter 138, as amended. Section 26 provides
that no "license" for the sale of alcoholic beverages shall be issued to
any person who is not a citizen of the United States. Although section
26 would prevent a registered pharmacist who is not a citizen from ob-
taining a license to sell without a prescription (such as a registered phar-
macist who is a citizen may obtain under section 30A), it does not affect
the right of a registered pharmacist to sell only upon prescription, because
section 29 authorizes him to do that without a license, provided he has a
certificate of fitness. Section 31 provides that no person except a citizen
shall be "employed" to sell, serve or deliver any alcoholic beverages. I
do not understand that your question refers to a registered pharmacist
who is employed by any one, and, accordingly, section 31 has no appli-
cation.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 67
Insurance — Reduction of Par Value of Shares of a Company — Certificate.
The Commissioner of Insurance may not approve a certificate of the
proceedings of an insurance company reducing the par value of
shares under G. L. (Ter. Ed.) c. 175, § 71, when such reduction was
authorized as of a date prior to the meeting granting such author-
ization.
March 7, 1934.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir: — In a recent communication to me you have set forth the
text of G. L. (Ter. Ed.) c. 175, § 71, which, in its appUcable parts, reads
as follows : —
"Any company may, upon a vote of a majority of the stock repre-
sented at a meeting legally called for that purpose, reduce its capital
stock by decreasing the number of the shares thereof, or by reducing the
par value of its shares to an amount not less than five dollars without
changing the number thereof; . . . Within ten days after such meeting,
the company shall submit to the commissioner a certificate setting forth
the proceedings thereof, the method of reduction and the amount thereof
and of the assets and liabilities of the company, signed and sworn to by
its president, secretary and a majority of its directors. If the commis-
sioner finds that the reduction is made in conformity to law and that it
will not be prejudicial to the public, he shall endorse his approval thereon
and, except as hereinafter otherwise provided, upon fifing the certificate,
so endorsed, with the state secretary and paying a fee of twenty-five dol-
lars for the filing thereof, the company may transact business upon the
capital as reduced, and the commissioner shall, upon payment of the fee
prescribed by section fourteen, issue his certificate to that effect. . . ."
With relation thereto you have advised me of the following facts : —
"A domestic company has submitted to the Commissioner a certificate
setting forth the record of a stockholders' meeting called for the purpose
of reducing the par value of its shares. This meeting was held February
21, 1934, and the said stockholders at that meeting voted to reduce the
par value of the shares as of December 30, 1933. It appears from the
record filed with me that this reduction in the par value of the com-
pany's shares has been made in conformity with the law unless the fact
that it was made on February 21, 1934, as of December 30, 1933, does
not conform to the statute. The company requests my approval of the
proceedings in accordance with the statutory provision above men-
tioned."
You ask my opinion in connection with such facts upon the following
question of law : —
"Is the Commissioner of Insurance authorized to approve the certifi-
cate setting forth the proceedings reducing the par value of the shares
of a corporation under said section 71 as of a date prior to the day upon
which the stockholders voted to make such reduction?"
I answer your question in the negative. The entire context of said
section 71 indicates an intention on the part of the Legislature that the
finding of the Commissioner that the stock reduction "is made in con-
formity to law and that it will not be prejudicial to the pubUc" and his
68 P.D. 12.
subsequent endorsement of the proceedings of the company, predicated
upon such finding, shall be a prerequisite to the transaction of the busi-
ness of the company upon the basis of a reduced capital. To permit a
company to reduce its capital stock now, to be effective as of some past
date, and to require the approval of the Commissioner nunc pro tunc is
not within the meaning of section 71 as enacted by the General Court.
Such a course to some extent would virtually annul the safeguards which
the Legislature has deliberately thrown about the doing of business on a
reduced capital.
Very truly yours,
Joseph E. Warner, Attorney General.
Insurance — Optional Annuity Settlements — Policy.
The Commissioner of Insurance may not approve a policy form which
provides an option for payment of a life policy as an annuity without
setting forth a table showing the amounts of the annuity payments.
(See Metropolitan Life Ins. Co. v. Commissioner of Insurance, Mass.
Adv. Sh. [1935] 363.)
March 19, 1934.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir: — You have advised me of the following facts: —
"The Metropolitan Life Insurance Company has filed for my approval
in accordance with the provisions of G. L. (Ter. Ed.) c. 175, § 132, a pohcy
form containing the following clause:
'Option 4. (Annuity Settlement.) By the payment of a life annuity
under any form of single payment life annuity issued by the company at
the date such life annuity settlement is elected. The amount of annuity
shall be such as the amount retained by the company will purchase on the
basis of the net rates corresponding to the gross rates in effect for similar
forms of annuity at the time the option is elected. If this option is elected
prior to the time any amount is payable under the terms of this policy, a
copy of the election form will be furnished by the company for attachment
to this policy. Such election form will contain a description of the annuity
elected and a table of rates for such form of annuity.'
In its letter accompanying the policy the company states: —
'This option provides for the election of a fife annuity under any form
of single payment life annuity issued by the company at the date such
annuity settlement is elected, on the basis of the net rates corresponding
to the gross rates in effect for similar forms of annuity at the time the
option is elected. Since the rates at which the annuity is to be purchased
do not determine until the option is elected, which time may be a good
many years after the policy is issued, it is impossible to show a table of
these rates in the policy. In the case of the proposed new option, it is
merely the purpose to give the insured or beneficiary the opportunity to
select other options which may be more advantageous or which may better
suit the individual needs at some future time than the options for which
tables are set out in the policy. It is manifestly impracticable to include
tables showing every option which the company may be willing to offer.
The advantage to the insured specifically in having this Option 4 in the
contract is that it provides a wide range of selection and sets forth in
advance that such options may be obtainable at net rates, rather than
P.D. 12. 69
the gross rates which would be charged a purchaser other than a policy-
holder or his beneficiary electing an annuity under this option. The basis,
therefore, by which the amount payable under any option may be deter-
mined is estabhshed in advance, but when the option is elected and it is
provided that the proceeds of the policy shall be (are) payable as an
annuity, a table of the annuity payments will be attached to the policy.'"
With relation to the foregoing you have asked me as follows : —
"Is the Commissioner of Insurance authorized to approve a policy
containing the aforesaid option?"
I answer your question in the negative.
G. L. (Ter. Ed.) c. 175, § 132, provides that no policy of life insurance
shall be issued which does not contain the following clause : —
" 10. In case the proceeds of a policy are payable in instalments or as
an annuity, a table showing the amounts of the instalments and annuity
payments."
It is stated that the instant policy does not, in relation to the annuity
above set forth, in which it is payable, contain any "table showing the
amounts of the . . . annuity payments." The mere fact that such pay-
ments cannot feasibly be so shown, as set forth in the letter of the insur-
ance company to you, does not afford an excuse for failing to comply with
the specific mandate of the Legislature in this respect. It would appear
from the context that one object of writing the provisions of said clause 10
of section 132 into the statute law was to make certain that the assured
would have before him, in advance of a choice of elections to convert, in
convenient form an absolute statement of just what in the way of an
annuity he could exchange his policy for. To give such information to
him after instead of before his exercise of his election is an entirely differ-
ent matter, and fails to comply with either the letter or the spirit of the
applicable statute.
Very truly yours,
Joseph E. Warner, Attorney General.
Motor Vehicle Registration — Heir.
One to whom title to an automobile has not been transferred from the
administrator of an estate, although he may be entitled so to receive
it, has not yet become "an owner" in such sense that he can properly
register the motor vehicle in his own name, even if he has acquired
actual possession of it.
March 22, 1934.
Hon. Frank E. Lyman, Commissioner of Public Works.
Dear Sir : — You have requested my opinion upon the following ques-
tions of law based on facts which you have set forth, as follows: —
"The owner of a registered motor vehicle dies intestate and the vehicle
is operated without registration for the balance of the year under the
provisions of the fourth paragraph of G. L. (Ter. Ed.) c. 90, § 2, . . .
At the beginning of the following year, no administration having been
applied for, the vehicle is registered by a member of the immediate family
of the deceased, who is sole heir, or who holds releases from the only
other surviving members of the immediate family to all property of the
70 P.D. 12.
deceased, the purpose of the procedure being to avoid the trouble and
expense of administering a small estate, in many cases consisting of only
the motor vehicle in question and a few personal belongings.
Is such heir the 'owner' of the motor vehicle, within the meaning of
that word as used in the first paragraph of G. L. (Ter. Ed.) c. 90, § 2,
which reads, in part, as follows: —
'Application for the registration of motor vehicles and trailers may be
made by the owner thereof.'"
Although the word "owner" as used in said section 2 has been con-
strued by the Supreme Judicial Court broadly, so as to include not only
the holder of the legal title to a motor vehicle but also others who have
acquired what the court calls a "special property" in a motor vehicle,
such as bailees, mortgagees in possession, and vendees under conditional
contracts of sale (see Harlow v. Sinman, 241 Mass. 462; Downey v.
Bay State St. Ry. 225 Mass. 281; Hurnanen v. Nicksa, 228 Mass. 346;
Temple v. Middlesex & Boston St. Ry. Co., 241 Mass. 124), nevertheless
the court has not construed the word so broadly as to cover one who has
not lawfully acquired at least some "special property" interest in the
vehicle. An interest, special or general, in the property of a deceased can
be lawfully acquired only by transfer from a legal representative of his
estate; that is, an executor or administrator. The "heir," as described
in your statement of facts, had not so acquired any interest in the motor
vehicle formerly belonging to the deceased. He had at most only an
expectancy or hope that if there had been an executor or administrator,
and if all conditions and the rights of creditors had been favorable thereto,
such legal representative might have transferred the ownership of the
vehicle to him. Such a hope or expectancy, with relation to a motor
vehicle, cannot well be said to make the possessor thereof an "owner"
of such vehicle, under any reasonable interpretation, however broad, of
the word "owner" as used in the instant statute.
I answer your question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
Department of Public Utilities — Broker's Registration — Revocation.
Registration of a broker under the Sale of Securities Act may be revoked
by proof that he has made false representations in connection with
his sales of stock to persons in New Hampshire.
March 28, 1934.
Hon. Henry C. Attwill, Chairman, Department of Public Utilities.
Dear Sir : — You request my opinion as to the right of your Commis-
sion to revoke the registration of a broker under the following circum-
stances.
Prior to the hearing before the Director of the Securities Division the
broker was notified that evidence would be offered on five specified grounds,
of which the first two were that the broker had failed to furnish informa-
tion as required and that he had sold in the Commonwealth stock not
qualified to be sold, and of which the last three were in substance that the
broker had made misrepresentations of material facts, had failed to disclose
material facts, and had made representations and predictions as to the
future not made honestly and in good faith. The Director made no find-
P.D. 12. 71
ings upon the last three specifications but found that the first two were
sustained, and revoked the registration. The broker claimed a public
hearing before a majority of the members of the Commission, in accord-
ance with the provisions of section 13 of the Sale of Securities Act (G. L.
[Ter. Ed.] c. IIOA, as amended by St. 1932, c. 290). At this hearing
evidence upon all five specifications was introduced. After hearing this
evidence the Commissioners were of the opinion that the first two speci-
fications were not sustained. Your first question, as I understand it, is
whether, assuming that the evidence is sufficient to sustain one or all
of the last three specifications, the Commission has power to affirm the
order of the Director revoking the registration.
In my opinion, the Commission has such power. Said section 13 pro-
vides that at a hearing before a majority of the members "any evidence
relevant to the subject matter involved in the proceedings . . . may be
introduced"; and also that the Commission shall "reconsider and review
the said subject matter." These provisions seem to show that the matter
is to be heard by a majority of the Commission de novo; and that the
fact that the Director made no finding upon a certain specification does
not bar the Commissioners from affirming an order revoking a registra-
tion, if the evidence before the Commissioners upon that specification
is sufficient to justify a revocation.
Your second question is whether the evidence presented to the Com-
missioners under specifications 3 to 5 was sufficient. You state that there
is evidence to show that the broker solicited and obtained orders for the
purchase of stock by persons in New Hampshire; that the stock was
transferred into the purchasers' names in New York and transmitted to
them in New Hampshire; that in making such solicitations the broker
sent or caused to be sent to the prospective purchasers bulletins which
contained representations of the broker and which were not made hon-
estly and in good faith by him; that the broker also in telephone conver-
sations from his office here to the prospective purchasers in New Hampshire
made false representations of material facts in order to induce them to
purchase the stock; and that there is no evidence that the broker circu-
lated the bulletins in this Commonwealth or made false representations
to purchasers who were in this Commonwealth.
I assume that the Sale of Securities Act does not purport to require
the registration of a broker who has a place of business in this Common-
wealth from which he conducts solely an interstate business. Section 9
requires registration only for persons who "sell any security within this
commonwealth." But the question here is solely of the authority of the
Commission to revoke the registration or license to do an intrastate busi-
ness. This depends upon the construction to be given to section 12,
which provides that if "any registrant is or has been conducting his busi-
ness as broker or salesman in a fraudulent manner, or in a manner which
if continued would result in fraud," the Commission may revoke his reg-
istration. It is also provided in section 2 (e) that the word "broker"
"shall include" every person "who in this commonwealth engages . . .
in the business of selHng securities." It is, of course, arguable that the
phrase "his business as a broker" must be construed as referring only to
that part of a broker's business which is intrastate, and as to which he is
required to be registered. But in view of the purpose of the provision
requiring registration, namely, to prevent dishonest brokers from doing
business here, I cannot believe that it was the intent of the Legislature
so to limit the power of the Commission to revoke a registration. Dis-
72 P.D. 12.
honesty in connection with a broker's interstate transactions certainly
bears upon his fitness to conduct intrastate transactions. An appHcant
for original registration must demonstrate to the Commission that he is
"of good moral character and of sufficient qualifications to engage in the
business proposed" (section 9). Certainly, if the Commission refused to
grant a license to an applicant upon evidence that his transactions as a
broker had been dishonest, no vahd objection could be raised upon the
ground that such transactions had been solely interstate. Clearly, the
Commission ought to have the power to revoke a registration upon simi-
lar evidence, and I have no doubt that the Legislature intended that it
should have. In my opinion, it is not impossible to construe the words
"his business as broker," as used in section 12, as covering a broker's
interstate as well as his intrastate business; and for the reasons above
stated I should not construe this section otherwise unless I felt absolutely
constrained by the language of the statute to do so.
It is accordingly my opinion that if your Commission is convinced by
the evidence before you that the broker has made false representations
in connection with his sales to persons in New Hampshire, as stated, you
have authority to revoke his registration.
Very truly yours,
Joseph E. Warner, Attorney General.
Retirement System — Probation Officer — Clerk of Court Pro Tern . — Court
Officer.
A probation officer who has rendered full service in his court during a
period of twenty consecutive years, but who has occasionally served
as a court officer, may be retired at the age of seventy.
April 6, 1934.
Hon. Henry F. Long, Commissioner of Corporations and Taxation.
Dear Sir: — You have asked my opinion, with relation to the retire-
ment of a probation officer, upon the following question: —
". . . whether a probation officer who has in fact rendered full service
in his court during a period of twenty consecutive years, but who has
during at least a part of that period, by direction of the justice, served as
a court officer and has received additional compensation for such service
as a court officer, can be retired at the age of seventy under the provisions
of G. L. (Ter. Ed.) c. 32, § 75."
G. L. (Ter. Ed.) c. 32, § 75, reads as follows: —
"Any probation officer or assistant probation officer whose whole time
is given to the duties of his office, shall, at his request, be retired from
active service and placed upon a pension roll by the court upon which it
is his duty to attend, with the approval of the county commissioners of
the county in which the court is situated; provided, that he is certified
in writing by a physician designated by such court to be permanently
disabled, mentally or physically, for further service by reason of injuries
or illness sustained or incurred through no fault of his in the actual per-
formance of his duty as such officer. Any such probation officer or assist-
ant probation officer who has faithfully performed his duties for not less
than twenty consecutive years, and who is not less than sixty, shall be
P.D. 12. 73
retired at his request without the aforesaid certification. Such probation
officer must be retired upon attaining the age of seventy."
In an opinion rendered by a former Attorney General, VI Op. Atty.
Gen. 315, 318, to which you refer, it was held that the positions of clerk
of court pro tern, and of probation officer of the same court are not in-
compatible and may be held by one person, who may receive compensa-
tion for both types of service.
Inasmuch as the two offices mentioned were both properly held by
the same person, it could not well be said under such circumstances that
such person had ceased to give his whole time to his duties as probation
officer, in the sense in which the words "whose whole time is given to
the duties of his office" are used in said section 75.
The same considerations would, in my opinion, apply to a person who
held the position of a court officer of a juvenile court "by direction of
the justice" of such court while continuing also, and coterminously, to
perform, as you state, "all the duties of an assistant and juvenile proba-
tion officer."
There is nothing in the opinion of another former Attorney General,
IV Op. Atty. Gen. 576, to which you also refer, inconsistent with this
view or with that expressed in VI Op. Atty. Gen. 315, for the former was
predicated upon the fact that a certain probation officer had not given
his whole time to the duties of his office but had spent a portion of it in
the private practice of law.
Upon the facts which you have stated I answer your question to the
effect that such a probation officer as you refer to may be retired at the
age of seventy.
Very truly yours,
Joseph E. Warner, Attorney General.
Insurance — Foreign Fraternal Benefit Society — Issuance of Annuity
Contracts.
A foreign fraternal benefit society transacting business on the lodge sys-
tem may be admitted to do business in Massachusetts when it pro-
vides in its constitution and by-laws for the issuance to its members
of annuity contracts.
April 11, 1934.
Hon. Merton L. Brown, Commissioner of Insurance.
Dear Sir: — You have asked my opinion upon the following question
of law : —
"May a foreign fraternal benefit society transacting business on the
lodge system be admitted to this Commonwealth when it provides in its
constitution and by-laws for the issuance to its members of annuity
contracts?"
The applicable statute, G. L. (Ter. Ed.) c. 176, § 41, reads, in part, as
follows : —
"No foreign society shall transact any business in the commonwealth
without a licence from the commissioner. Every such society applying
for such a license shall file with the commissioner a duly certified copy of
its charter or articles of association; a copy of its constitution and by-
74 P.D. 12.
laws, certified bj^ its secretar}^ or corresponding officer; a power of attor-
ney to the commissioner, as provided in the following section; a statement
of its business, on oath of its president and secretary, or corresponding
officers, in the form required by the commissioner, duly verified by an
examination made by the supervising insurance official of its home state
or other state satisfactory to the commissioner; a copy of its certificate
of membership; a certificate from the proper official of its home state,
territory, district or country that the society is legally organized; and
the society shall show that the benefits are provided for by periodical or
other payments by persons holding similar contracts, and that its assets
are invested in accordance with the laws of the state or country where it
is organized, and that it has the qualifications required of domestic so-
cieties on the lodge system incorporated under this chapter; . . . Upon
compliance with these requirements, such foreign society shall be en-
titled to a license to transact business in the commonwealth until July
first following, and such license shall, upon compliance with this chapter,
be renewed annually, but in all cases to terminate on July first following;
except that it shall continue in full force and effect until the new license
is issued or refused. For every such license or renewal the society shall
pay to the commissioner twenty dollars."
I assume from the general tenor of your communication that the society
referred to in your question has done all the acts required b}^ said sec-
tion 41 as prerequisites to obtaining a license, and that "it has the quali-
fications required of domestic societies on the lodge system." If this be
so, it is immaterial, as far as the issuing of a license to it under said sec-
tion 41 is concerned, that it has by its constitution and by-laws, in addi-
tion to "the qualifications required of domestic societies," the power to
make annuity contracts with its members. If it possesses the qualifica-
tions treated as essential by the statute, the fact that it also possesses
other qualifications and powers in respect to making contracts does not,
of itself alone, by the terms of our statutes nor by any implication there-
from, bar it from receiving the license specified in said section 41 and
from being thereby admitted to the Commonwealth (see I Op. Atty.
Gen. 1; U. S. Fidelity & Surety Co. v. Linehan, 70 N. H. 395), although
under our laws it will not be permitted to exercise such greater powers
in respect to making annuity contracts within the Commonwealth.
I accordingly answer your question in the affirmative.
Very truly yours,
Joseph E. Warner, Attorney General.
Schoolhouses — City of Boston — Janitors — Custodians.
Assistants to the custodians of schools in the city of Boston are "labor-
ers" or "workmen" as these words are used in the apphcable statute,
but they are employees of the custodians and not employees of the
city, so that the provisions relative to hours of work contained in
G.'L. (Ter. Ed.) c. 149, §§ 30 and 31, do not apply to them.
April 11, 1934.
Hon. Edwin S. Smith, Commissioner of Labor and Industries.
Dear Sir: — You request my opinion as to whether "assistants" to
custodians, referred to by you as "janitors," in schoolhouses of the city
of Boston are subject to sections 30 and 31 of G. L. (Ter. Ed.) c. 149,
restricting work as therein specified to eight hours per day.
P.D. 12. 75
A "custodian" is appointed for each school by the schoolhouse custo-
dian, subject to the approval of the school committee (School Committee
Rules, §§ 125, 126, cited School Doc. No. 10—1929, p. 18), and is paid
by the city according to a schedule of compensation for custodians (School
Doc. No. 9 — 1930). Custodians have general supervision of the school
premises, and their duties as to sweeping and cleaning the buildings and
grounds, tending to the heating, etc., are set forth in detail in the regu-
lations for custodians (School Doc. No. 10 — 1929). Custodians are
allowed a specified number of "assistants" to do the manual work in-
volved (School Doc. No. 8 — 1929, p. 5). These assistants are paid by
the custodians out of the pay received by the custodians from the city;
and the regulations refer to them as being "employed by" the custo-
dians, and being "their employees" (School Doc. No. 10 — 1929, pp. 7, 19).
I assume that these assistants are "laborers" or "workmen" within
the meaning of these words as used in sections 30 and 31 of G. L. (Ter.
Ed.) c. 149 {White's Case, 226 Mass. 517) ; but these sections apply only
to laborers and workmen "employed by" the city, or "by any contractor
or subcontractor for or upon any public works of" the city. The assist-
ants here in question are not, in form at any rate, employed by the city;
and the provision of the rules of the . school department purporting to
make them employees of the custodians has, I am informed, been recog-
nized in the administration of the Civil Service Law. These assistants
are not in fact employed under civil service. Nor can a custodian be
said to be a "contractor . . . for or upon any public works of" the city.
He is an officer or employee of the city whose duty is to take care of
certain property belonging to the city.
Accordingly, I answer your question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
Department of Correction — Penal and Reformatory Institutions.
Institutions under the control of the Department of Correction are not
required to abide by the conditions in G. L. (Ter. Ed.) c. 142, in
connection with the alteration of plumbing.
April 13, 1934.
Hon. Frederick J. Dillon, Commissioner of Correction.
Dear Sir : — You have requested my opinion as to whether or not the
institutions under the control of the Department of Correction are re-
quired to abide by the conditions laid down in G. L. (Ter. Ed.) c. 142,
in connection with the alteration of plumbing fixtures in the said insti-
tutions. The particular case referred to deals with the Reformatory for
Women, at Sherborn.
By virtue of the provisions of G. L. (Ter. Ed.) c. 125, the management
and direction of the State penal and reformatory institutions are placed
under the general supervision of the department and the particular super-
vision of the head of each institution. G. L. (Ter. Ed.) c. 125, § 33, in
providing for the Reformatory for Women reads, in part, as follows : —
"The superintendent . . . shall have the management and direction
of the reformatory, its servants and employees and all its affairs, except
as otherwise provided."
G. L. (Ter. Ed.) c. 142, contains the law in respect to supervision of
plumbing. It provides in section 11 that —
76 P.D. 12.
". . . said inspectors of plumbing shall inspect all plumbing in process
of construction, alteration or repair for which permits are granted within
their respective cities and towns."
Section 13 of said chapter 142 provides that each city and town shall
adopt regulations or by-laws which shall provide that "no plumbing shall
be done, except to repair leaks, without a permit first being issued there-
for, upon such terms and conditions as such cities or towns shall prescribe."
The Legislature has intrusted the management and direction of all
affairs of State penal and reformatory institutions to the Department of
Correction and its officers. In carrying out such management and direc-
tion the officers of the department act as the agents of the Common-
wealth, and are exercising domination over property of the Common-
wealth. The general law made for the regulation of citizens in regard to
the inspection and licensing of plumbing must, under general principles
of statutory interpretation, be held to be subordinate to the special
statute placing in your department complete jurisdiction over the man-
agement and direction of these institutions and the regulation of the use
of this State property, unless there is express provision to the contrary.
No such special provision to the contrary is to be found in the applicable
statute. It is not to be assumed that in the absence of such a special
provision the Legislature intended to give to the local licensing or in-
specting officials authority to control or interfere with the reasonably
necessary efforts of the officers of your department to perform their duty
as agents of the Commonwealth. Teasdale v, Newell <Sc Snowling Con-
struction Co., 192 Mass. 440, 443; I Op. Atty. Gen. 290; II ibid. 56 and
399; Attorney General's Report, 1932, p. 86.
I accordingly answer your question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
Trapping — Poison.
The use of capsules containing poison, made to be affixed to steel traps,
is not in violation of the law.
April 16, 1934.
Hon. Sumner A. York, Commissioner of Conservation.
Dear Sir : — You request my opinion as to whether the use of certain
capsules or metal tubes containing calcium cyanide, made to be affixed
to steel traps, is a violation of G. L. (Ter. Ed.) c. 131, § 103, which pro-
vides that —
"Whoever places poison in any form whatsoever for the purpose of
killing any mammal or bird shall be punished . . ."
According to the claim of the manufacturer of the capsules an animal
caught in the trap will immediately bite into the capsule, which is clamped
onto the free jaw of the trap, and this will liberate a gas which will kill the
animal.
An argument has been made, in behalf of those who desire that the use
of the capsules be permitted, that an animal caught in a trap is no longer
ferae naturae but is the property of the trapper. But however that may
be, section 1 of said chapter 131 defines "mammals" as "wild or un-
domesticated mammals"; and, in my opinion, these words are incapable
P.D. 12. 77
of being construed in a sense which will make them cease to be applicable
to an animal the instant it is caught in a trap.
I answer your question in the affirmative.
Very truly yours,
Joseph E. Warner, Attorney General.
Pharmacist — Alcoholic Beverages — Transportation — Licenses.
A druggist licensed to sell alcoholic beverages is entitled to obtain a trans-
portation permit, and he may transport such beverages; but he may
not lawfully transport alcoholic beverages prior to the execution of the
certificate of the purchaser, provided for in G. L. (Ter. Ed.) c. 138,
§ 30E, as inserted by St. 1933, c. 376, § 2.
April 18, 1934.
Board of Registration in Pharmacy.
Gentlemen: — You request my opinion —
1. As to whether a druggist licensed to sell alcoholic beverages may
obtain a transportation permit under section 22 of G. L. (Ter. Ed.) c. 138,
as inserted by St. 1933, c. 376, § 2, and may make deliveries thereunder;
and
2. Whether, assuming that a druggist has such a transportation permit,
he may lawfully transport for delivery alcoholic beverages upon order,
notwithstanding the certificate of the purchaser, provided for in section
30E of said chapter 138, as inserted by St. 1933, c. 376, § 2, has not pre-
viously been executed, if the druggist or his agent takes the book referred
to in section 30E, of which the certificates are a part, to the place of de-
livery for execution by the purchaser there.
1. Section 15 of said chapter 138, as inserted by St. 1933, c. 376, § 2,
provides generally for the granting of licenses for the sale of alcoholic
beverages not to be drunk on the premises. ,
Section 22 provides: —
"Licensees for the sale of alcoholic beverages may transport and deliver
anywhere in the commonwealth alcoholic beverages lawfully bought by or
lawfully sold by them, in vehicles operated under the control of them-
selves or of their employees; provided, that the owner of every such vehicle
shall have obtained for such vehicle from the commission a vehicle permit
for the transportation of alcoholic beverages."
Section 29 of said chapter 138, as amended, provides for the sale upon
prescription by registered pharmacists who hold certificates of fitness, and
also provides : —
"Nothing in this chapter shall disquahfy a registered pharmacist from
being licensed under section fifteen, provided that he sells no cooked food
to be consumed on the premises; but a hcense issued to a druggist under
said section shall not be included in computing the number of licenses that
may be granted in any city or town as provided in section seventeen."
Section 30A of said chapter 138, as amended, provides that a registered
pharmacist may be "hcensed by local licensing authorities to sell alcohoUc
liquors for medicinal, mechanical or chemical purposes without a physi-
cian's prescription, ..."
Section 30B provides: —
78 P.D. 12.
"No license for the sale of alcoholic liquors, except as provided in the
preceding section or as permitted in section twenty-nine, shall be granted
to retail druggists."
I assume that the license to which your question refers is one issued under
section 30A. In my opinion, a druggist holding such a license is one of
the "licensees" referred to in section 22, and therefore entitled to obtain
a transportation permit and to transport thereunder.
2. Section 30E requires every retail pharmacist licensed under section
30 A to keep a book in which he shall enter, "at the time of every such sale,
the date thereof, the name of the purchaser, the kind, quantity and price
of said liquor, the purpose for which it was sold, and the residence by street
and number, if any, of said purchaser."
Section 30D provides that no retail pharmacist licensed under section
30A shall "sell alcoholic liquor . . . except upon the certificate of the
purchaser, which shall state the use for which it is wanted, and which shall
be immediately cancelled at the time of sale in such manner as to show
the date of cancellation."
The form of certificate is set forth in section 30E and reads: "I wish
to purchase and I certify ..."
Section 32 provides that all sales under said section 15, where trans-
portation and delivery are required, shall be made only upon orders
actually received at the licensed place of business prior to the shipment
thereof.
Section 30F provides : —
"The book, certificates and prescriptions provided for in the two pre-
ceding sections shall at all times be open to the inspection of the board of
registration in pharmacy, the local licensing authorities, to the inspection
of the aldermen, selectmen, board of public welfare, sheriffs, constables,
poUce officers and justices of the peace."
Section 15 provides: —
"Any sale of such beverages shall be conclusively presumed to have
been made in the store wherein the order was received from the customer."
In the case put in your question the druggist would be transporting
liquor which had not been sold — for there can be no legal sale prior
to the signing of the certificate by the prospective purchaser — for the
purpose of making a sale elsewhere than at his store. In my opinion,
such procedure is contrary to the intent of the statute as disclosed in
the sections above cited. Especially it is to be noted that such procedure
involves removing the book from the store, which is inconsistent with
the requirement of section 30F that it shall at all times be open to in-
spection.
Accordingly, I answer your second question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 79
Retirement System — Accidental Injury — Death — Pension.
April 18, 1934.
Hon. Charles F. Hurley, Chairman, State Board of Retirement.
Dear Sir: — You have requested my opinion upon the proper inter-
pretation of G. L. (Ter. Ed.) c. 32, § 2 (9) and (10), in the following con-
nection : —
"A short time ago the Board retired an employee for permanent acci-
dental injury, under paragraph (9) of G. L. c. 32, § 2, and this employee
recently died and the widow is now seeking a pension under paragraph
(10) of said section.
The Board desires your opinion upon the question of whether a pension
may be granted under paragraph (10) to the widow of a former member
who was retired by the Board under paragraph (9)."
Assuming that the employee, the former member of the retirement
system, to whom you refer, died from injuries received while in the dis-
charge of his duty, I am of the opinion that his widow is entitled to the
pension described in said paragraph (10), irrespective of the fact that
such employee had been in receipt of the retirement allowance provided
by said paragraph (9) for one found to have been permanently incapaci-
tated.
G. L. (Ter. Ed.) c. 32, § 2 (9) and (10), reads as follows: —
"(9) Any member who is found by the board, after examination by
one or more physicians selected by the board, to have been permanently
incapacitated, mentally or physically, by injuries sustained through no
fault of his own while in the actual performance of his duty, from the
further performance of such duty, may be retired, irrespective of age and
of his period of service, and shall receive yearly payments as follows:
(a) an annuity at his age nearest birthday, as provided by section five
(3) B; (b) such a pension from the commonwealth that the sum of the
annuity under section five (2) B (a) and the pension shall equal one half
the annual salary received by him at the time when the injury was re-
ceived. Except as otherwise provided, a person retired under this para-
graph shall not receive from the commonwealth any other sum by way of
annuity, pension or compensation. In case of emergency, a retired officer
or inspector of the department of public safety or a retired permanent
member of the metropolitan district police may be called upon by the
proper authority for such temporary active duty as such officer or in-
spector is able to perform, and there shall be paid to him for such service
the difference between the rate of full pay and the rate of pension received
by him. Application for disability retirement hereunder shall be made
in writing within two years after the date of the applicant's last salary
payment, and pension and annuity payments granted under this para-
graph shall be payable only from the date of receipt by the board of such
application. The board may require re-examinations from time to time
of any member of the association pensioned under this paragraph or under
paragraph (8), and if the disability or incapacity is found no longer to
exist the pension shall cease and there shall be refunded to such member
such sum, if any, as the board finds then remaining to his credit in the
annuity fund.
(10) If any member is found by the board to have died from injuries
received while in the discharge of his duty, and leaves a widow, or if no
80 P.D. 12.
widow any child or children under the age of sixteen, a pension equal to
the retirement allowance to which such member would have been entitled
under paragraph (9) had he been permanently incapacitated shall be paid
to such widow so long as she remains unmarried, or for the benefit of such
child or children so long as he or any one of them continues under the
age of sixteen. A person receiving a pension under this paragraph shall
not receive from the commonwealth any other sum by way of annuity,
pension or compensation."
The provisions of paragraphs (9) and (10) were added to the law rela-
tive to the retirement system in 1921 (St. 1921, c. 487, §§ 4, 5), and to-
gether set forth a method of providing for members and their dependents,
respectively, when such members are injured in the course of the per-
formance of their duty so seriously as to be totally incapacitated or killed.
If a member is totally incapacitated, the amount of his retirement allow-
ance and the method of dealing with it are regulated by paragraph (9).
If a member is killed, paragraph (10) in effect extends the benefits of the
retirement system laws so as to afford protection to his widow and orphans
by a general pension scheme applicable to them. The language of para-
graph (10) does not indicate an intent to exclude from this general scheme
for the protection of such widows and orphans those whose husbands or
fathers have received some benefit from the provisions of paragraph (9)
by way of a retirement allowance. The phrase used in paragraph (10)
to indicate the amount of the pension, namely, ''equal to the retirement
allowance to which such member would have been entitled under para-
graph (9) had he been permanently incapacitated," while more aptly
describing the amount of such pension in those cases where the husband
dies before receiving a total incapacity retirement allowance, is, never-
theless, descriptive of such amount in any case, and does not negative
the intent of the Legislature to provide a general scheme for the care of
widows and orphans of members of the system killed by injuries received
in the line of duty.
Very truly yours,
Joseph E. Warner, Attorney General.
Workmen's Compensation — Municipalities — E. R. A. Projects.
A municipality is without authority to appropriate and pay public moneys
for workmen's compensation insurance for those working under the
Emergency Relief Administration program.
April 20, 1934.
Hon. Joseph W. Bartlett, Chairman, Emergency Finance Board.
Dear Sir : — You have requested an opinion on the following ques-
tion : —
"The city of Revere has borrowed money from the Commonwealth
under St. 1933, c. 307. It is incumbent upon our Board to approve or
disapprove all appropriations for enterprises not covered in the 1933
budget.
We have been asked to approve in the city of Revere an order appro-
priating $6,000 for industrial compensation accident insurance, said sum
to be raised from the tax levy of the current year. This is to cover men
working on the Emergency Relief Administration program, so called,
their compensation being paid, as I understand it, by the Federal govern-
P.D. 12. 81
ment and the materials which they use in their work being paid for by the
city of Revere.
In your opinion is an appropriation for this purpose within the legal
powers of the city government of Revere?"
For your guidance in the performance of your duties I advise you that
I am of the opinion that, since the Legislature has not specifically au-
thorized payment of compensation for the results of accidents to those
working under the Emergency Relief Administration program, a munici-
pality is without authority to appropriate and pay public moneys for such
a purpose.
The provisions of the Workmen's Compensation Act (G. L. [Ter. Ed.]
c. 152) do not provide for payment of such compensation to anyone but
an "employee." An ''employee" is defined in said act as a person under
a contract of hire. As I understand the situation in relation to those
working under said program, no contract of hire, express or implied,
exists between a municipality and one working under said program upon
material paid for by such municipality, he himself receiving his pay from
the Federal government. The worker is not an employee of the munici-
pahty within the meaning of G. L. (Ter. Ed.) c. 152, § 1 (4), which reads: —
"'Employee', every person in the service of another under any con-
tract of hire, express or implied, oral or written, except masters of and
seamen on vessels engaged in interstate or foreign commerce, and except
one whose employment is not in the usual course of the trade, business,
profession or occupation of his employer. Any reference to an employee
who has been injured shall, when the employee is dead, also include his
legal representatives, dependents and other persons to whom compen-
sation may be payable."
Hence there is no duty upon the municipality to pay the worker com-
pensation and no authority so to do under said chapter 152 (see Greene's
Case, 280 Mass. 506). In the absence of any enabling statute specifically
providing for an appropriation and payment by a municipality for such
form of compensation to this particular class of workers, I am constrained
to answer your question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
Pharmacist — Certificate of Fitness — Revocation.
Either the Board of Registration in Pharmacy or a local licensing board
has the power to revoke a certificate of fitness under G. L. (Ter. Ed.)
c. 138, § 30, as inserted by St. 1933, c. 376, § 2.
April 25, 1934.
Board of Registration in Pharmacy.
Gentlemen : — You have requested an opinion on the following
question : —
"A certain licensing board revoked the certificate of fitness of a drug-
gist, under authority of G. L. (Ter. Ed.) c. 138, § 30, as inserted by St.
1933, c. 376, § 2. Can the Board of Registration in Pharmacy act as an
appeal board and reverse that decision?"
G. L. (Ter. Ed.) c. 138, § 30, as inserted by St. 1933, c. 376, § 2, pro-
vides as follows : —
82 P.D. 12.
"The board of registration in pharmacy may, upon the payment of a
fee of not more than five dollars by a registered pharmacist who desires
to exercise the authority conferred by section twenty-nine, issue to him
a certificate of fitness, which shall not be valid after one year from its
date, stating that in the judgment of said board he is a proper person
to be intrusted with such authority and that the public good will be
promoted by the granting thereof. The board and the local licensing
authorities may, after giving a hearing to the parties interested, revoke
or suspend such certificate for any cause which they may deem proper,
and such revocation or suspension shall revoke or suspend all authority
conferred by section twenty-nine."
The effect of this section is to grant to both the Board of Registration
in Pharmacy and the local licensing authorities the right to revoke a cer-
tificate of fitness granted to a pharmacist under the provisions of said
section 30. This power of revocation may be exercised by either authority
independently of the other. The meaning and effect of this section might
perhaps have been clearer if the word "or" had been used in that section
instead of the word "and." Under the decisions of the Supreme Judicial
Court it has often been held that in order to give effect to the plain intent
of a statute or the plain intent of parties to a written instrument the word
"or" may be read as "and," and vice versa. Litchfield v. Cudworth, 15
Pick. 23, 27; Central Trust Co. v. Howard, 275 Mass. 153, 158. See also
Dumont v. United States, 98 U. S. 142, 143, and Manson v. Dayton, 153
Fed. 258.
In my opinion, it was the intent of the Legislature to give the power of
revocation to either the Board of Registration in Pharmacy or the local
hcensing authorities, and not to require the unanimous action of both
authorities acting as a unit.
I accordingly answer your question in the negative.
Very truly yours,
Joseph E. Warner, Attorney General.
Secretary of State — Delegates to a Political Convention — Vacancies.
April 26, 1934.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You have asked my opinion, to aid you in the perform-
ance of your duties, upon a question of law relative to statutory inter-
pretation, as follows: —
"G. L. (Ter. Ed.) c. 53, § 53, as amended by St. 1932, c. 310, § 19,
provides: — 'If there is a tie vote for delegates to a convention, such
vacancy shall be filled by the delegates elected from the district, except
that, if no delegate is elected, or if the delegates elected fail to make a
choice within ten days, the vacancy shall be filled by the state committee.' "
I am of the opinion that the words "the district" as used in the quoted
statute mean the ward or town for which the delegates referred to by
you were nominated, and not a senatorial district.
G. L. (Ter. Ed.) c. 53, § 54, as amended by St. 1932, c. 310, § 21, pro-
vides, in its pertinent parts, with relation to a pre-primary convention: —
"Such convention shall consist of the delegates elected at the party
primary . . . The number of delegates shall be one from each ward and
P.D. 12. 83
town and one additional for every fifteen hundred votes, or major frac-
tion thereof above the first fifteen hundred votes cast at the preceding
biennial state election in such ward or town for the political party candi-
date for governor."
It is apparent from the foregoing that the district for which each dele-
gate is nominated is either a ward or a town. When an existing political
district, other than the one for which the delegates are respectively nomi-
nated, is mentioned in the said act it is specifically referred to by its
accepted designation, as in the phrase in section 22 of St. 1932, c. 310,
amending G. L. (Ter. Ed.) c. 53, § 53: "Delegates shall be seated in
groups by senatorial districts."
St. 1932, c. 310, § 12, amending G. L. (Ter. Ed.) c. 53, § 44, provides,
with relation to nomination papers such as are filed for delegates to party
conventions : —
''Such papers for all other offices to be filled at a state election, and for
members of committees and delegates to conventions, shall be signed by
a number of voters equal in the aggregate to five voters for each ward or
town in the district or county, but in no case shall more than two hun-
dred and fifty be required."
It is to be remembered that this provision refers not only to prospective
delegates but to various other prospective officers as well. If it related
only to delegates it would be meaningless, on account of its reference to
a "county." The language of this section is modified and made plain
by G. L. (Ter. Ed.) c. 53, § 46, which deals with the certification of the
nomination papers provided for by said section 44, and therein we find
the meaning of the word "district" as used in said section 44 elucidated
and set forth as "the district for which the nomination is made," and,
as is apparent from an examination of said section 54, as amended, "the
district for which the nomination is made" is either a ward or a town.
Accordingly, it is plain, from a reading of the said three sections (44, 46
and 54) together, that the Legislature, by the use of the word "district"
without any modifying adjective, intended to indicate, when it was em-
ployed in said chapter 310 with relation to delegates to a convention,
the district for which delegates are nominated — that is, a ward or a
town, as the case may be.
Very truly yours,
Joseph E. Warner, Attorney General.
Insurance — Constitutional Law — Agent's Commissions.
April 30, 1934.
Hon. Philip Sherman, Chairman, House Committee on Bills in the Third
Reading.
Dear Sir: — Your committee has addressed to me the following com-
munication : —
"The Committee on Bills in the Third Reading of the House requests
your opinion in writing as to whether or not House Bill No. 155, entitled
'An Act to provide that no agent shall be charged with a decrease or
deduction from his commission or salary on industrial life insurance poli-
cies lapsed after being paid on for five years,' would, if enacted into law,
be constitutional."
84 P.D. 12.
The text of the said act reads : —
"Chapter one hundred and seventy-five of the General Laws is hereby
amended by adding after section one hundred and seventy-six the fol-
lowing new section: — Section 176 A. On policies of industrial life insur-
ance upon which premiums were paid for five years or more and surren-
dered to the company for a cash value or paid up insurance or extended
insurance or lapsed for non-payment of premiums the agent shall not
be charged with a decrease for said premium and no deduction shall be
made from his commission or salary." »
Assuming that this measure may be construed as relating only to
policies to be written in the future, I am of the opinion that its consti-
tutionality would be sustained by the courts.
As was' said in II Op. Atty. Gen. 264, 266: —
"In the exercise of the police power conferred by the Constitution,
many laws limiting the right of citizens in the making of contracts, and
even prohibiting certain contracts, have been enacted by the General
Court and sustained as constitutional by the Supreme Judicial Court."
The business of insurance has been held to be so charged with a public
use that the Legislature may regulate it in a vast number of particulars,
for the purpose of promoting the general welfare and the prevention of
fraudulent and other practices tending unnecessarily to increase the
burdens borne by the insuring public, under the guise of the police power,
and in so doing may restrict and control the contracts made by the in-
surer. The exercise of such power is, of cour.se, subject to the limitation
that it must not be arbitrarily employed and must be used in a manner
which bears some reasonable relation to the accomplishment of the
appropriate aim of legislation, namely, the promotion of the general
welfare through the proper conduct of the insurance business. Although
the relation of the proposed prohibition upon the right of the insurer and
its agent to enter into a certain kind of contract, in regard to limitations
upon the latter's compensation for risks procured, to the promotion of
the general welfare through the proper conduct of the insurance business
appears remote, I cannot say that the Legislature, in determining, by the
passage of the proposed measure, that there was such a relation, would
be plainly acting in an arbitrary or an unreasonable fashion.
The use of the word "were" in the sixth line of the proposed measure
might tend to give the impression that the Legislature intended the same
to apply to compensation of agents upon policies already written, as to
which the contracts, express or implied, with relation to such compensa-
tion between the agents and their companies had long before been made.
If such is the intent with which the measure is enacted into law, it will be
unconstitutional in so far as it relates to such pre-existing contracts.
Rights acquired and vested by contracts are protected from destruction
by legislation by U. S. Const, art. I, § 10, which denies to the States the
power of impairing the obligation of legal contracts.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 85
Department of Correction — Prison Labor — Sales.
May 10, 1934.
Hon. Frederick J. Dillon, Commissioner of Correction.
Dear Sir: — With relation to G. L. (Ter. Ed.) c. 127, § 67A (as added
to the General Laws by St. 1932, c. 252), you have asked my opinion in
connection with the following facts : —
"Under this act the department is desirous of ascertaining whether or
not the jails and houses of correction of this State could solicit work for
the caning and repairing of chairs from private families and societies. In
doing this work the institution would charge for the materials and labor
of repairing the articles and furniture, returning them to their owners.
The statute states that 'Whoever sells or offers for sale,' and we are de-
sirous of knowing whether or not the caning and repairing of furniture
would be in conflict with this statute."
Said section 67A makes it a criminal offense to sell or offer for sale goods,
wares or merchandise "manufactured, produced or mined, wholly or in
part, by convicts or prisoners" except when sold at retail on the premises
of the institution where they are manufactured. Transactions such as you
describe, which would apparently consist only in repairing and reseating
chairs already belonging to persons or societies and redelivering the same,
for a consideration, would not constitute "sales," or arrangement therefor,
nor "offers for sale," so as to be criminal offenses within the meaning of
said section 67A.
Nevertheless, I feel that I should point out in this connection that the
various sections of said G. L. (Ter. Ed.) c. 127, which deal with the labor
of prisoners do not appear to make provision for, or authorize the solici-
tation of orders for, the performance by prisoners of the type of work
to which you refer; and in the absence of specific legislative authoriza-
tion it may well be doubted whether your department has any power to
undertake the same.
Very truly yours,
Joseph E. Warner, Attorney General.
Workmen's Compensation — Trustee — Foreign Insurance Company —
Deposits.
May 23, 1934.
Hon. Joseph A. Parks, Chairman, Industrial Accident Board.
Dear Sir : — You have requested my opinion as to the following three
questions : —
"1. What is the scope of the term 'trustee' as that term is used in G. L.
(Ter. Ed.) c. 152, § 62?
2. What is the character of the deposit made with the trustee under said
section 62?
3. In what manner is said deposit to be held and employed by the said
trustee, and what are the rights and duties of said trustee in respect to such
deposit?"
G. L. (Ter. Ed.) c. 152, § 62, provides as follows: —
"Every such foreign insurance company shall, within five days after its
withdrawal from the transaction of business in the commonwealth or after
86 P.D. 12.
the revocation of its license issued by the commissioner of insurance or of
his refusal to renew it, deposit with a trustee to be named by the depart-
ment an amount equal to twenty-five per cent of its obligations incurred
or to be incurred under workmen's compensation policies issued to em-
ployers in the commonwealth; and within thirty days after such with-
drawal, revocation of or refusal to renew a license, such company shall
deposit with said tmstee an amount equal to the remainder of such obliga-
tions incurred or to be incurred, the amount of which obligations shall be
determined by the department. The amount so deposited shall be avail-
able for the payment of the said obligations of the company to the same
extent as if the company had continued to transact business in the com-
monwealth, and the trustee so receiving said deposit shall pay such obliga-
tions at the times and in a manner satisfactory to the department."
Under the provisions of this section and the customary procedure as
heretofore followed in such matters the Department of Industrial Accidents
has directed the time and manner of disbursement of funds deposited in
accordance with the provisions of said section. The "trustee" has acted
solely as a depositary of the funds and disbursing agent under the direc-
tion of the department.
In my opinion, therefore, the answers to your questions are as follows: —
1. The term "trustee" as that term is used in G. L. (Ter. Ed.) c. 152,
§ 62, does not connote a trustee within the full legal meaning of that term,
but merely a depositing and disbursing agency acting under the direction
of the department.
2. The deposit made under the provisions of said section 62 constitutes
a trust fund, to be disbursed by the trustee only under and in accordance
with the direction of the department.
3. The deposit is to be held by the trustee and disbursed by it in accord-
ance with the directions of the department. The trustee has no duties
other than to carry out the directions of the department.
Very truly yours,
Joseph E. Warner, Attorney General.
Retirement System — Public School — Punchard Academy.
The duty of determining when a given institution first became a public
school rests upon the Teachers' Retirement Board, and is to be
determined as a question of fact, having regard to certain essential
principles of law.
May 28, 1934.
Dr. Payson Smith, Chairman, Teachers' Retirement Board.
Dear Sir: — Your Board has asked me to inform it as to my opinion
"as to the date on which the Punchard Academy first became a public
school, for the purposes of the Teachers' Retirement Law."
The Attorney General does not pass upon questions of fact. The duty
of coming to a determination as to the date with which you are con-
cerned rests upon your Board alone. The principles of law which will
aid you in coming to such determination are set forth in an opinion of one
of my predecessors in office, VII Op. Atty. Gen. 500. In such opinion
it was held that upon certain facts, then actually before the Attorney
General and assumed by him to be true, the Punchard Academy, so
P.D. 12. 87
called, was a "public school" on August 6, 1924. At just what date the
academy lost the character of a private school, which it originally pos-
sessed, and became a "public school" was not decided therein, nor do
there appear to have been facts before the then Attorney General which
would have enabled him to decide that point had it been relevant to the
inquiry before him, nor have I such facts before me now. They are to be
found by your Board.
From those facts which were before the then Attorney General in
1924, and upon which the said opinion was predicated, it may be assumed
by you in making your decision that the character of a "pubhc school,"
which would be sufficient to entitle its teachers to be members of the
Teachers' Retirement Association, had not been acquired as a matter of
law by the academy before 1902 at the earliest.
If you find that in 1902, or at some later date, for the first time the
trustees of the academy exercised no more control over the administra-
tion of the affairs of the school than they were exercising in 1924, and did
not thereafter increase their exercise of authority, then you will be war-
ranted as a matter of law in deciding that at such time the academy first
became a "public school" within the meaning of the Teachers' Retire-
ment Act.
What purport to be complete records of the trustees' official actions as
far back as 1913 have been shown me by counsel for the teachers. They
appear to indicate that, at least since 1913, the trustees have abandoned
in favor of public administration the exercise of any real power of control
over the institution. If, in view of any other circumstances which may-
become known to you, you find that such was the fact, you will be justi-
fied, in accordance with the principle of law laid down in the said opinion
of 1924, in deciding that in 1914 the academy became a "public school."
If, upon a consideration of all the surrounding circumstances, 3^ou find
that similar conditions existed in any other year subsequent to 1901, you
will be justified by the same principles in deciding that in such year the
school first became a "public school."
Very truly yours,
Joseph E. Warner, Attorney General.
Motor Vehicles — Registrar — Standard of Fitness — Foreign States.
June 1, 1934.
Hon. Frank E. Lyman, Commissioner of Public Works.
Dear Sir : — You have asked my opinion in effect as to whether or
not it would be within the authority of the Registrar of Motor Vehicles
to determine that the State of Rhode Island "prescribes and enforces
standards of fitness for operators of motor vehicles substantially as high
as those prescribed and enforced by this Commonwealth," as those words
are used in G. L. (Ter. Ed.) c. 90, § 10, in view of the fact that in said
State a road test is required of applicants for operators' licenses, as you
write, "only in those cases in which the Registrar of Motor Vehicles of
Rhode Island feels that such a test is necessary in view of the inexperi-
ence or physical or mental capacity of the applicant."
You advise me that —
"It has been the opinion of the Registrar that in order to justify such
a determination by him the nonresident State must require all appli-
88 P.D. 12.
cants for operators' licenses to submit to an examination, including a
road test."
I assume that the said opinion of the Registrar has been formed, in
part at least, because in this Commonwealth a satisfactory road test is
required as evidence of fitness of applicants for licenses to operate motor
vehicles.
I cannot say as a matter of law that the Registrar has not properly
exercised the authority vested in him in arriving at this opinion.
The Legislature has laid upon him alone the duty to determine whether
in any given instance the standards of fitness for operators, as prescribed
and enforced in another State, are "substantially as high" as those in
this Commonwealth. Such determination is a decision upon a question
of fact. In the absence of manifest absurdity or error in the conclusion
to which the Registrar comes, which does not appear in his instant opinion,
and in the absence, as here, of any suggestion of arbitrariness or lack of
good faith, the soundness of the opinion or determination of fact at which,
in the exercise of his discretion and judgment, he has arrived cannot
properly be impugned by the Attorney General.
Very truly yours,
Joseph E. Warner, Attorney General.
Department of Education — School Nurses — Qualifications.
June 15, 1934.
Dr. Payson Smith, Commissioner of Education.
Dear Sir: — You have asked my opinion as to whether your depart-
ment may "establish certain standards of professional training and other
qualifications which school nurses must possess in order to be eligible for
appointment in those towns that receive aid under the provisions of part
II of chapter 70 of the General Laws."
G. L. (Ter. Ed.) c. 70, § 17, provides: —
"No town shall receive any payment under Part II of this chapter,
unless it has complied, to the satisfaction of the department of education,
with all laws relating to the pubhc schools."
G. L. (Ter. Ed.) c. 71, § 53, provides: —
"The school committee shall appoint one or more school physicians and
nurses, shall assign them to the public schools within its jurisdiction, shall
provide them with all proper facilities for the performance of their duties
and shall assign one or more physicians to the examination of children
who apply for health certificates required by section eighty-seven of chap-
ter one hundred and forty-nine, but in cities where the medical inspection
hereinafter prescribed is substantially provided by the board of health,
said board shall appoint and assign the school physicians and nurses. The
department may exempt towns having a valuation of less than one mil-
lion dollars from so much of this section as relates to school nurses."
The duty of appointing school nurses has been placed by the Legisla-
ture upon the school committees or the boards of health, and they are
entitled to exercise their discretion and sound judgment in selecting such
nurses. The opinion of your department is not to be substituted for, or
made controlling of, the discretion and judgment of the local authorities.
Your department has no authority to make rules or regulations upon the
P.D. 12. 89
subject of the selection or appointment of school nurses nor to estabhsh
standards of eligibility for such nurses which are to govern the local officials
in the discharge of their duty.
It is true, however, that under said G. L. (Ter. Ed.) c. 70, § 17, your
department must be satisfied that the local officials have complied with
the provisions of said chapter 71, section 53, before the town in which
such officials function may receive payments mentioned in said chapter 70,
Part II. An appointment by local officials to the position of school nurse
of a person so lacking in qualifications that she could not fairly be said
to be a "nurse" in any reasonable sense of that word, having regard to
the usual characteristics of training and experience which are ordinarily
denoted by such word, might well be held in a particular instance by your
department not to be such an appointment as constituted a satisfactory
compliance with the law in this respect, and so might furnish a proper
reason for withholding payments under said section 17. Your depart-
ment may not properly hold that there has been no compliance with the
law in this regard, satisfactory to it, merely because of a difference of
opinion with local authorities as to the qualifications of an appointee, but
can do so correctly only when the appointment falls so far short of
adequacy that no reasonable person, knowing all the facts of which the
department may be aware, could say that there had been a bona fide ful-
fillment of the intent of the Legislature in providing that school children
should have the benefit of the services of "nurses" — that is, nurses in
fact not merely in name.
Very truly yours,
Joseph E. Warner, Attorney General.
Departme7it of Education — Training of the Blind — Advanced Instruction.
July 2, 1934.
Dr. Payson Smith, Commissioner of Education.
Dear Sir: — You have requested my opinion as to the authority of the
Department of Education to continue as pupils in the Perkins Institution
young men and women who are taking courses outside the school, some
more advanced than those offered at the Perkins Institution, when these
pupils have been sent to such institution by your department, under and in
accordance with G. L. (Ter. Ed.) c. 69, § 26.
The pertinent statute, G. L. (Ter. Ed.) c. 69, §§26 and 27, provides as
follows : —
"Section 26. The department may, upon the request of the parents
or guardians and with the approval of the governor, send such deaf and
such blind persons as it considers proper subjects for education, for a term
not exceeding ten years, to the American School, at Hartford, for the Deaf,
in the state of Connecticut, to the Clarke School for the Deaf at Northamp-
ton, to the Horace Mann School at Boston, to any other school for the
deaf in the commonwealth, as the parents or guardians may prefer, or to
the Perkins Institution and Massachusetts School for the Blind, as the
case may be, and, upon like request and with like approval, it may con-
tmue for a longer term the instruction of meritorious pupils recommended
by the principal or other chief officer of the school which they attend. With
the approval of the governor the department may, at the expense of the
commonwealth, make such provision for the care and education of children
who are both deaf and Wind as it may deem expedient. No such pupil
90 P.D. 12.
shall be withdrawn from such institutions or schools except with the con-
sent of the authorities thereof or of the department; and the expenses of
the instruction and support of such pupils therein, actually rendered or
furnished, including their necessary traveling expenses, whether daily or
otherwise, but not exceeding ordinary and reasonable compensation there-
for, shall be paid by the commonwealth; but the parents or guardians of
such children, who are able wholly or in part to provide for their support
and care, to the extent of their ability may be required by the department
to reimburse the commonwealth therefor.
Section 27. The department shall direct and supervise the education
of all such pupils, and the commissioner shall state in his annual report
their number, the cost of their instruction and support, the manner in
which the money appropriated by the commonwealth therefor has been
expended, to what extent reimbursed, and such other information as he
deems important."
It is my opinion that "upon the request of the parents or guardians" of
minors who are blind, and with the approval of the Governor, your depart-
ment may send such persons to the Perkins Institution, and, in accordance
with section 27, the department "shall direct and supervise the education
of all such pupils." It may be that the Perkins Institution does not offer
courses of instruction appropriate or sufficiently advanced for the needs of
certain of these pupils. In such cases I deem it within the power of your
department, in the exercise of its discretion, to allow pupils who have been
so sent to and are living at the Perkins Institution, and who are under the
guidance and control of its principal and instructors, to take courses in
other institutions of learning.
Such discretion, however, must be exercised reasonably. The legisla-
tive intent was, I believe, to provide for care, supervision and education
of the blind at an institution particularly adapted for such purpose. The
statutes do not contemplate that the Perkins Institution and Massachu-
setts School for the Blind be made a mere conduit through which pupils
may be sent for education to other schools and universities at the expense
of the Commonwealth, but the statutes do not limit or circumscribe the
courses of instruction which may be given to blind pupils. It follows,
therefore, that if the control, care and superintendence of the pupils are
actually given by your department to the Perkins Institution, and the
instruction at other institutions is merely supplemental to that given at
said institution, and your department also performs its duty of supervising
and directing the education of such pupils, the legislative intent embodied
in the above-quoted statutes will not be violated.
Very truly yours,
Joseph E. Warner, Attorney General.
Alcoholic Beverages — Refusal of License — Authority of Commission.
The Alcoholic Beverages Control Commission has power to overrule the
decisions of the local licensing authorities in relation to denjdng
licenses under G. L. (Ter. Ed.) c. 138, § 12 or § 15, as inserted by
St. 1933, c. 376, § 2, and to order a Hcense to issue.
July 2, 1934.
Alcoholic Beverages Control Commission.
Gentlemen: — You state that in each of two towns a license to sell
alcoholic beverages under G. L. (Ter. Ed.) c. 138, § 12 or § 15, as inserted
P.D. 12. 91
by St. 1933, c. 376, § 2, was denied by the local licensing authorities, and
that each applicant duly appealed to the Commission in accordance with
section 67 of said chapter 138, as amended; that pending the disposition
of these appeals the local licensing authorities in each town have pur-
ported to grant a license (in one case conditional upon the result of the
appeal) to another applicant, which license, if added to the number pre-
viously issued plus the application pending on appeal to the Commission,
would make the total licenses exceed the number permissible under sec-
tion 17 of said chapter 138, as amended. You request my opinion as to
whether, under the circumstances, the Commission has power to overrule
the decisions of the local licensing authorities, and whether, in the event
of such action, the licenses subsequently granted by the local licensing
authorities would have to be regarded as invalid.
By section 67 of said chapter 138, as amended, when an application
has been denied by the local authorities the Commission is given full
power, on appeal by the aggrieved applicant, to order the license to issue.
Section 16A of said chapter 138, as amended, makes express provision
for protecting such an appellant from the possibility of having the quota
of licenses permissible under section 17 of said chapter 138, as amended,
exhausted pending the decision of the Commission on appeal. Section
16A reads: —
"If in any city or toM^n eighty per cent of the total number of licenses
permitted to be granted under section seventeen to any class of licensee
has been granted and there are applications for licenses pending before
the local licensing authorities or if there are pending before the commis-
sion appeals from refusals of the local hcensing authorities of such city
or town to grant licenses in such class, every such applicant and every
such appellant shall, for the purposes of said section, be deemed to have
been granted a license until his application or appeal has been dismissed."
It appears, therefore, that the Commission has authority to order the
issuance of licenses in the two appealed cases referred to, and that, if the
Commission has made or makes such orders, the licenses which the local
authorities purported to issue pending the appeals must be regarded as
invalid.
Very truly yours,
Joseph E. Warner, Attorney General.
Pharmacy — Registration of Store — Retail Drug Business.
It was not the intention of the Legislature that stores should be regis-
tered and permitted to be advertised to the pubHc as retail drug stores
when the applicants do not in good faith intend to fill or to be pre-
pared to fill ordinary prescriptions, and the Board of Registration
in Pharmacy may deny an application for registration and the trans-
action of the retail drug business solely upon the ground that the
applicant does not intend to have in stock the drugs for filling ordi-
nary prescriptions.
July 9, 1934.
Board of Registration in Pharmacy.
Gentlemen : — You request my opinion as to whether the Board of
Registration in Pharmacy has authority under G. L. (Ter. Ed.) c. 112,
§ 39, to deny an application to register a store for the transaction of the
92 P.D. 12.
retail drug business solely upon the ground that it appears that the appli-
cant does not intend to have in stock the drugs for filling ordinary pre-
scriptions.
Section 39 reads as follows : —
"The board shall, upon application made in such manner and form
as it shall determine, register a store for the transaction of the retail
drug business and issue to such person as it deems qualified to conduct
such store, a permit to keep it open; but no such registration shall be
made or permit issued in the case of a corporation unless it shall appear
to the satisfaction of the board that the management of the drug business
in such store is in the hands of a registered pharmacist. Such permit
shall expire on January first following the date of its issue, and the fee
therefor shall be five dollars."
Section 38 provides that no store shall be kept open or advertised or
represented as transacting a retail drug business unless it is registered
under section 39.
Section 37 defines "drug business," as used in sections 38 and 39, as —
"the sale, or the keeping or exposing for sale of drugs, medicines, chemicals
or poisons, except as otherwise provided in section thirty-five, also the
sale or the keeping or exposing for sale of opium, morphine, heroin, co-
deine or other narcotics, or any salt or compound thereof, or any prepa-
ration containing the same,- or cocaine, alpha or beta eucaine, or any
synthetic substitute therefor, or any salt or compound thereof, or any
preparation containing the same, and the said term shall also mean the
compounding and dispensing of physicians' prescriptions."
Although the construction of section 37 is perhaps not free from doubt
yet, in my opinion, it was not the intention of the Legislature that stores
should be registered and permitted to be advertised to the public as
retail drug stores when the applicants do not in good faith intend to fill
or to be prepared to fill ordinary prescriptions. The filling of prescrip-
tions is certainly regarded by the public as an important, if not the chief,
element in the transaction of "the retail drug business." An additional
reason for giving the term "retail drug store" a somewhat restricted
meaning is to be found in the fact that special and important privileges
relating to the sale of intoxicating liquors have been granted by the
Legislature to retail druggists. See G. L. (Ter. Ed.) c. 138, § 29 et seq.,
as added by St. 1933, c. 376, § 2. The construction of G. L. (Ter. Ed.)
c. 112, § 37, applied to section 39, as involving the compounding and
dispensing of physicians' prescriptions as an essential element, is con-
firmed by an examination of the legislative documents relating to the
enactment of said sections. St. 1913, c. 705. The last part of the defini-
tion, now contained in section 37, as presented in House Bill No. 2356
of 1913, read: "any preparation containing the same, or the compounding
and dispensing of physicians' prescriptions." The word "or" was stricken
out and the words "and the said terms shall also mean the compounding
and dispensing of physicians' prescriptions," as appearing in the final
enactment, were substituted.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 93
Pilot Commissioners — Incoming Steamers — Port of Boston — Port of
Lynn.
The Port of Lynn is a separate port from the Port of Boston, within the
meaning of G. L. (Ter Ed.) c. 103, § 25.
A vessel coming from a foreign port, bound for Lynn, which arrives first
at Boston and then proceeds to Lynn, is subject to compulsory pilot-
age, under said section 25, while so proceeding from Boston to Lynn.
July 30, 1934.
Commissioners of Pilots, Port of Boston.
Gentlemen : — You have requested my opinion as to whether steamers
arriving in Boston from a foreign port, which discharge part of their
cargo in Boston and then proceed to the Port of Lynn for discharge of
the remainder of their cargo, are subject to a charge for pilotage from
the sea to Boston, and to a similar charge for pilotage from Boston to
Lynn and from Lynn to sea.
The answer to your question depends upon a determination of whether
or not the Port of Lynn is a separate and distinct port from the Port of
Boston; for vessels, even on the completion of a voyage from a port out
of the Commonwealth, would be exempt from pilotage from Boston to
Lynn unless the ports of such places were separate and distinct. I am
of the opinion that it is a separate port, within the meaning of the ap-
plicable statutory enactment, G. L. (Ter. Ed.) c. 103, § 25, which reads: —
"Every pilot shall take charge, within the limits of his commission, of
any vessels, not exempt from compulsory pilotage by section twenty-
eight, and of vessels not bound from one port to another within the com-
monwealth, unless they are in the completion of a voyage from a port
out of the commonwealth."
In my opinion, a vessel coming from a foreign port, bound for Lynn,
which arrives first at Boston and then proceeds to Lynn, under the cir-
cumstances above described, is, during this latter part of its trip, com-
pleting a voyage from a port out of the Commonwealth, within the mean-
ing of said section 25. Such a vessel, during the last stage of its trip, is
subject to compulsory pilotage, under said section 25, since she is bound
from one port to another within the Commonwealth "in the completion
of a voyage from a port out of the commonwealth," and apparently
is not within any exemption contained in section 28 of said chapter
103. In proceeding from Boston to Lynn a vessel, under the described
conditions, has not merely shifted her berth within a single port. What
constitutes the Port of Boston is not determined by the boundaries set
up in said chapter 103, section 1, for what is called therein "District
One," which includes the "Harbor of Boston" and other places therein
noted which are not necessarily within the "Port of Boston" or within
the "Harbor of Boston," is not the same thing as the "Port of Boston,"
nor is the meaning of the term "Port of Boston" extended in its relation
to the provisions of said section 25 thereby, nor altered by Federal desig-
nations of "Boston Harbor" as that term is used in various of such
designations for different purposes. The Port of Lynn lacks various
characteristics which exist in connection with those ports, such as Wey-
mouth, Dorchester, Cambridge and Charlestown, which were referred to
by the Supreme Judicial Court, in 1845, in the decision of Martin v.
94 P.D. 12.
Hilton, 9 Met. 371, and which were therein said to be within the general
designation of Port or Harbor of Boston.
The rates of pilotage for the Port of Boston are specified in section 31
of said chapter 103. In section 3 of said chapter the rates for the entire
pilotage district known as "District One" are established on the same
basis as those set up in said section 31 for the Port of Boston, but no
inference can properly be drawn from this legislative enactment that the
Port of Boston is itself commensurate with said "District One" as such
district is described in detail in said section 1 of chapter 103.
Very truly yours,
Joseph E. Warner, Attorney General.
Minimum Wage Commission — Commissioner of Labor and Industries —
Decree — Order.
Aug. 27, 1934.
Miss Mary E. Meehan, Acting Commissioner of Labor and Industries.
Dear Madam : — You request my opinion as to whether, after the
effective date of St. 1934, c. 308, the Commissioner of Labor and Industries
will have power to enforce as a "directory order" or "mandatory order"
under said chapter a decree previously made by the Minimum Wage Com-
mission under G. L. (Ter. Ed.) c. 151; and/or whether the Minimum Wage
Commission will continue to have the same power which it now has to
enforce such a decree.
G. L. (Ter. Ed.) c. 151, as it now exists, provides that the Board of Con-
cihation and Arbitration (the Associate Commissioners of the Department
of Labor and Industries, G. L. [Ter. Ed.] c. 23, § 7) in performing the duties
required by said chapter shall be known as the Minimum Wage Commis-
sion (section 1) ; that upon final approval by the Commission, after pubhc
hearing, of the determination of a minimum wage for female employees in
a given occupation by a Minimum Wage Board (as constituted under said
chapter) the Commission shall enter a "decree" of its findings, and that
the Commission may thereafter publish the names of employers who it
finds are refusing to follow its recommendations (sections 4, 11).
Section 1 of St. 1934, c. 308, provides: —
"The General Laws are hereby amended by striking out chapter one
hundred and fifty-one, as amended, and inserting in place thereof the fol-
lowing new chapter : —
Under this new act, if the "commission," defined as the Associate Com-
missioners of the Department of Labor and Industries, accepts a report of
a wage board (constituted as provided in section 4) upon the establish-
ment of minimum fair wage rates for women and minors in an occupation,
and, after public hearing, approves it, the Commission shall transmit the
report to the Commissioner of Labor and Industries, who shall make a
"directory order" which shall define the minimum wage (section 10). If
the Commissioner believes that any employer is not observing "the pro-
visions of any order made by the commissioner under section 10" — that
is, a "directory order" — he may summon such employer to show cause
why his name should not be published as having failed to observe the pro-
visions of such order, and, after hearing, the "commissioner" may publish
the name of such employer (section 12). After a directory order has been
P.D. 12. 95
in effect nine months the Commissioner may, if he finds persistent vio-
lation, after hearing make such order "mandatory" (section 13). Any
employer paying less than the minimum wage under a "mandatory order"
shall be punished by fine or imprisonment (section 22).
Section 3 of said chapter 308 reads, in part, as follows : —
"This act shall not be construed to abrogate or invalidate any proceed-
ings hitherto taken or pending on its effective date under chapter one hun-
dred and fifty-one of the General Laws, as in effect immediately prior to
such date, or to alter or modify the effect of any decree or order made under
the provisions of said chapter as so in effect, but all such proceedings may
be completed in accordance with said chapter, and such decrees and orders
shall continue to be in full force and effect until expressly amended, modi-
fied or revoked in accordance with chapter one hundred and fifty-one as
revised by this act; ..."
In answer to your questions it is my opinion that —
1. The Commissioner has no power under section 12 of said chapter 308
to enforce a "decree" of the Minimum Wage Commission, because that
section expressly confines his power of enforcement to "any order made
by the commissioner under section 10," and the decrees of the Minimum
Wage Commission are not made under section 10.
2. Nor has the Commissioner power under section 13 to make a "de-
cree" of the Minimum Wage Commission "mandatory." The power under
section 13 to make an order mandatory applies, by the express terms of
section 13, only to directory orders; and directory orders are defined
(section 1) as orders the nonobservance of which may be pubhshed "as
provided in section 12," which, as before stated, applies only to orders
made "by the commissioner under section 10."
3. The Minimum Wage Commission will continue to have the same
power to enforce decrees heretofore made that it formerly had, until
directory orders affecting the same subject matter have been made by the
Commissioner after a report by a wage board appointed under said chapter
308. Section 3 of chapter 308 incorporates by reference, and so perpetuates
as to existing decrees, the provisions of the existing chapter 151 of the
General Laws. It expressly permits the completion of pending proceedings
"in accordance with said chapter" — that is, chapter 151 before the revi-
sion; also, by providing in the same connection that the decrees made under
said chapter shall continue in full force and effect until amended, modified
or revoked under chapter 308, the statute discloses a clear intent that the
Minimum Wage Commission shall continue to have the same power that
it now has to enforce such decrees.
Very truly yours,
Joseph E. Warner, Attorney General.
Commissioner of Conservation — Arbitration — Easement.
Sept. 14, 1934.
Hon. Samuel A. York, Commissioner of Conservation.
Dear Sir: — You state that the Director of the Division of Fisheries
and Game has been requested in a certain case to appoint an arbitrator
under section 46 of G. L. (Ter. Ed.) c. 131, and you ask my opinion as
to whether a proceeding under that section is necessary.
96 P.D. 12.
Said section 46 reads as follows : —
*'A pond other than a great pond, bounded in part by land belonging
to the commonwealth or to a county, city or town, shall become the ex-
clusive property of the other proprietors as to the fisheries therein only
upon payment to the state treasurer, or to the county, city or town treas-
urer, as the case may be, of a just compensation for their respective
rights therein, to be determined by three arbitrators, of whom one shall
be appointed by the director, one shall be an individual riparian proprietor
of said pond or an officer of a corporation which is such proprietor, and
one shall be the chairman of the county commissioners of the county
where the pond, or the largest part of the area thereof, is situated, if the
riparian proprietors include the commonwealth, or one or more counties,
or two or more cities or towns, or one or more cities and one or more
towns, or the mayor or chairman of the board of selectmen, respectively,
if only one city or town is such part proprietor."
Section 44 of said chapter provides: —
"Except as provided in the following section and in section fifty-one,
the riparian proprietors of any pond, other than a great pond, and the
proprietors of any pond or parts of a pond created by artificial flowing,
shall have exclusive control of the fisheries therein."
You state that the pond in question is not a great pond, and that the
fee in all the land bounding it is held by the corporation making the
request for arbitration, although a part of such land is used as a county
road and is subject to an easement of the county so to use it, the fee
being in the corporation referred to. The question is whether such ease-
ment makes the road "land belonging to ... a county," within the
meaning of said section 46.
In my opinion, this question must be answered in the negative. The
only right of the county is an easement to use the land in question as a
road. The easement has no connection with fishing rights, and does not
make the county one of the "proprietors as to the fisheries," within the
meaning of sections 46 and 44. The "land" cannot properly be described
as "belonging ... to a county," within the meaning of these words as
used in section 46, and therefore no arbitration under said section is proper
or necessary.
Very truly yours,
Joseph E. Warner, Attorney General.
Department of Public Works — Canal — Easement — Nuisance.
Sept. 20, 1934.
Hon. Frank E. Lyman, Commissioner of Public Works.
Dear Sir : — My opinion has been requested as to the following mat-
ter : —
"I am enclosing copies of reports ... [of engineers] relating to an
old canal owned by the Cummington Power Company, within the State
highway location in the town of Cummington, which is falling in in places
and creating a dangercwis condition.
I am requesting your advice as to what this department should do in
the matter."
P.D. 12. 97
In Commonwealth v. Surridge, 265 Mass. 425, 427, it is stated: —
"By the location of a highway an easement of passage is secured for
the pubhc with all incidental privileges thereby implied. The fee of the
land commonly remains in the owner, who may make any use of it not
inconsistent with the paramount right of the public. The easement of
passage for the public acquired by the layout of a highway includes
reasonable means of transportation for persons and commodities and
of transmission of intelligence. Whatever interferes with the exercise of
this easement is a nuisance, even though no inconvenience or delay to
public travel actually takes place."
In my opinion, the canal interferes with the exercise of the easement
of passage secured for the public under the layout order of the Massachu-
setts Highway Commission and has become a nuisance.
I advise you as follows : —
1. That there is no duty on the part of the Department of Pubhc
Works to repair or maintain the canal, or any part thereof.
2. That upon a proper application by the Cummington Power Com-
pany the department may grant a permit to make the required opening
in the State highway so as to enable that company to make repairs on
the canal and thereafter to maintain it upon such terms and conditions
as may be deemed to be in the best interests of the Commonwealth.
See G. L. (Ter. Ed.) c. 81, § 21.
3. That the department may request the Attorney General to institute
appropriate proceedings to abate the nuisance created by the canal.
Very truly yours,
Joseph E. Warner, Attorriey General.
Department of Public Health — Local Boards — Frozen Desseiis — License.
Sept. 26, 1934.
Dr. Henry D. Chadwick, Commissioner of Public Health.
Dear Sir: — You call my attention to St. 1934, c. 373, entitled "An Act
further regulating the manufacture and sale of frozen desserts and ice
cream mix," which act went into effect on June 29th; and in connection
therewith you request my opinion on the following questions: —
"1. Can a local board of health issae a license for the manufacture of
frozen desserts to any person in such business on June 29th for the period
between June 29, 1934, and March 1, 1935?
2. Can local boards of health, after March 1, 1935, issue hcenses for
periods of less than twelve calendar months but expiring on the March
1st following the date of application?
3. Must the permits granted by this department to extra-state manu-
facturers expire on March 1st?
4. If the answer to question 3 is in the affirmative, can the Department
issue permits for any period between June 29, 1934, and March 1, 1935?"
G. L. (Ter. Ed.) c. 94, § 65H, as inserted by section 1 of said chapter
373, provides that every person manufacturing within the Commonwealth
frozen desserts and ice cream mix "shall, during the month of February
in each year, file with the board of health of each town" in which he pro-
poses to manufacture "an application for a license" to manufacture such
products "for the year commencing with the following March first"; and
98 P.D. 12.
that any manufacturer without the Commonwealth who desires to sell
his product within the Commonwealth "shall apply to the department
[of public health]" for "a permit to sell," and that the department may
issue such a permit if satisfied, after inspection, that the plant is main-
tained in accordance with its rules and regulations.
The fact that these provisions state that manufacturers within the
Commonwealth shall apply in February of each year for a license to
manufacture frozen desserts and ice cream mix for the year commencing
the following March first, and the fact that the law itself did not become
effective until after February first of this current year, namely, on June
29th, — thereby obviously disenabling all possibility of applications by
manufacturers during Febniary and the issuance by local boards of licenses
for the year commencing March 1, 1934, — apparently are the occasions
of your first and second inquiries as to whether local boards of health have
power to hcense such manufacturers prior to March 1, 1935.
If it is to be assumed that manufacturers may not now be licensed,
merely for the reason that the annual date for application and for issuance
of licenses has already elapsed, it follows that, in the year 1935 and in all
subsequent years, boards may not license any manufacturer who does not
apply during the month of February and who may chance to apply at
some time during any year after the month of February has expired.
By such construction no manufacturer of frozen desserts and ice cream
mix, if in any February he was not established in such business, or if he
had not then even purposed to become so established at some time dur-
ing the year, could be licensed to engage in the business until March
first of the following year. This construction would deprive the indi-
vidual of liberty to establish himself at any time in this legitimate enter-
prise, even though he might be complying with every last rule and
regulation for the production and sale of frozen desserts and ice cream
mix.
The main intent of the Legislature in enacting the entire law was to
protect the health of the people. The fixation of the date for application
and for issuance of license — since such date in no way appears to have
any conceivable relationship to public health — was incident to the solici-
tude of the Legislature to facilitate its chief objective, in stating an orderly
and uniform mode whereby health agencies might more efficaciously
exercise those responsibilities imposed upon them by the law with respect
to manufacturers.
If it be assumed that recitation of the month of February for applica-
tion and of March first for issuance of licenses is bar to power of local
boards to license manufacturers now, and enforces such boards to wait
until March next so to do, it follows that the adoption of the emergency
preamble, which effected operation of the law almost instantaneously
rather than after the expiration of the usual ninety days, must be held of
sHght significance, since, upon such assumption, with respect to licensing
manufacturers it expedited nothing.
By such construction, although the adoption of the preamble may be
found consistent with legislative intent for immediate operation of the
law in its new provisions relating generally to frozen desserts and ice
cream mix, and other products, such as, among others, their ingredients,
the purposed efficacy of the law is peremptorily suspended, since it is
manifest that the means, which the Legislature indisputably set up to
accomplish its chief object by enactment of the new provisions, — namely,
function by local boards of health to license manufacturers, — is postponed.
P.D. 12. 99
Section 651 provides that a local board of health, if satisfied after in-
spection of the plant referred to "in an appHcation for a hcense," may
"grant to any suitable applicant therefor a license"; and that no person
shall manufacture within the Commonwealth "without a license," and
that no person manufacturing without the Commonwealth shall sell
within the Commonwealth "without a permit."
Although the "license," to which this provision refers and without
which manufacturers of frozen desserts and ice cream mix are forbidden
to engage in business, is a license issuable in the manner provided in
section 65H, the intent of the Legislature to safeguard the health of
the people by forbidding engagement in such business without license
is unmistakable; and the adoption of the preamble, for enablement of
instantaneous consummation of such intent, further emphasizes incre-
dulity that the Legislature sanctioned no action by local boards until
eight months after.
In my opinion, the provision in section 65H referring to the filing of
applications in February of each year is not to be construed as depriving
the local boards of health of power or authority under section 651 to
issue licenses upon applications filed at some other time; and, accord-
ingly, I answer your first two questions in the affirmative.
I answer your third question in the affirmative. Obviously, all licenses
of manufacturers within the Commonwealth expire March first. If manu-
facturers without the Commonwealth may apply for permits and receive
them, and if such permits may have force throughout the year from the
date of issuance, obviously, also, there is plain discrimination against
local manufacturers.
Although the provisions for requirement of a permit for manufacturers
without the Commonwealth appear in a paragraph separate from the
provisions requiring license of manufacturers within the Commonwealth,
and although the former omit to state any particular date for obtaining
such a permit and the latter do, yet it does not appear that such omission
in the former was intended to give the Department of Public Health
greater latitude in receiving applications from and in granting permits
to manufacturers without the Commonwealth than it afforded to local
boards of health in receiving applications from and in granting Hcenses to
manufacturers within the Commonwealth. The provisions relating to
permits expressly recite that "such permit shall be in lieu of the license
referred to in the first paragraph." Since such local manufacturers have
no privilege to engage in business after March first without a license, it is
inconceivable that the Legislature intended extension of a privilege to
manufacturers without the Commonwealth which it would deny to manu-
facturers within the Commonwealth, but that, by the use of the words
"in lieu of," it intended enjoyment of privileges under a permit to be
identical with those enjoyed under a license, and designed equality to all
manufacturers, both within and without the Commonwealth.
I answer your fourth question in the affirmative, to the effect that the
department may issue permits beginning at any date in 1934, and termi-
nating March 1, 1935.
Very truly yours,
Joseph E. Warner, Attorney General.
100 P.D. 12.
Commissioner oj Banks — Trust Companies — Statutes.
Sept. 28, 1934.
Hon. Arthur Guy, Commissioner of Banks.
Dear Sir : — You have asked my opinion upon the following question : —
"In view of the amendment to section 18 of G. L. (Ter. Ed.) c. 172, by
St. 1934, c. 349, § 12, effective June 29, 1934, may the minimum capital
stock of a trust company, required by said section 18, still consist, in
whole or in part, of preferred stock authorized and issued pursuant to
section 6 of St. 1933, c. 112, as amended, so long as said chapter remains
in force and effect?"
I answer your question in the affirmative.
It is a generally recognized rule of statutory interpretation that a gen-
eral act will not be taken to repeal a special act in so far as the latter
deals with specific matters touched upon by the former. Only when it
appears that the acts cannot be construed in such a way as will not make
them mutually inconsistent is there an exception to such rule.
St. 1933, c. 112, as amended by St. 1934, c. 3, is a special act. St. 1934,
c. 349, is a general act. The former is specifically applicable to such trust
companies as require reorganization and other changes, under its provi-
sions, during the life of the act, which was definitely limited to two years.
There is no necessary inconsistency in the application of the former to
the special class of trust companies to which it specifically relates, during
the two years of its life, and the enforcement of the latter, the general
act, as to those trust companies which were not in need of the assistance
provided by the former act, during the two years of its hfe.
There is no explicit repeal of the earlier statute contained in the later
one, nor is a statute "to be deemed to supersede a prior statute in whole
or in part in the absence of express words or clear implication." Inspector
of Buildings v. General Outdoor Advertising Co., Inc., 264 Mass. 85, 89. I
do not regard the acts as necessarily inconsistent, when construed as I
have suggested they should be. I cannot say that one has worked the
repeal of the other. I am confirmed in my view that it was not the in-
tent of the Legislature that there should be a repeal by implication by
the fact that I am advised that reorganization of those trust companies
which were the special object of the remedial legislation of the earlier
statute was for the most part begun prior to the enactment of the later
statute, something of which the Legislature must have been well aware,
and with the working out of which reorganizations, under the scheme set
up in the earlier statute, the General Court cannot be thought to have
intended to interfere when it passed the general law (St. 1934, c. 349) in
June of 1934.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 101
Division on the Necessaries of Life — Director — Department of Public
Utilities.
The Director of the Division on the Necessaries of Life has no authority
to sit jointly or concurrently with the Department of Public Utilities
for the purpose of passing upon contracts relating to the sale and
purchase of gas.
Oct. 8, 1934.
Miss Mary E. Meehan, Acting Commissioner of Labor and Industries.
Dear Madam: — You have laid before me a letter addressed to the
Director of the Division on the Necessaries of Life of the Department of
Labor and Industries, in which he is asked, by a party interested, to "sit
with the Utihty Commissioners in the hearing of the cases" — that is,
cases before the Department of Public Utilities relating to various con-
tracts for the production and distribution of gas by different companies
— "with concurrent jurisdiction conferred by the Acts of 1930 (chapter
410) creating your Division." You ask my opinion as to the authority
of the Department of Labor and Industries, under said chapter 410, to
investigate gas prices by the said Director through his sitting jointly or
concurrently with the Department of Public Utilities in the said hearing.
I am of the opinion that the Director of the Division on the Necessaries
of Life has no authority to sit jointly or concurrently with the Depart-
ment of Pubhc Utilities for the purpose of hearing and passing upon
contracts for the sale and purchase of gas, as to which the Department
of Public Utilities has been given jurisdiction by the statutes. The said
Director is not empowered so to sit, under any statute.
Long prior to the creation of the Commission on the Necessaries of
Life (Gen. St. 1919, c. 341) the Legislature had delegated to the Board of
Gas and Electric Light Commissioners, now the Department of Public
Utilities, the supervision of gas companies and the control of prices of gas
(R. L. c. 121, §§ 5, 35; G. L. [Ter. Ed.] c. 164, §§ 76, 94, 94A). It is^
perfectly clear that, in creating the Commission on the Necessaries of ^
Life, now a division of the Department of Labor and Industries, and in
delegating to the Director of said Division, by St. 1930, c. 410, now G. L.
(Ter. Ed.) c. 23, the power to "study and investigate the circumstances
affecting the prices of fuel," the Legislature did not intend to delegate
to him a jurisdiction to be exercised jointly or concurrently with the
Department of Public Utihties in hearing and determining cases concerning
the approval of contracts for the production and distribution of gas.
I am therefore constrained to advise you that the Director has no
authority to act as requested.
Very truly yours,
Joseph E. Warner, Attorney General.
Commissioner of Agriculture — Milk Dealers — Bonds and Securities.
Oct. 8, 1934.
Dr. Arthur W. Gilbert, Commissioner of Agriculture.
Dear Sir: — You have requested my opinion upon the following ques-
tions: —
"1. Shall all bonds or other security given by any milk dealer to satisfy
the requirements of G. L. (Ter. Ed.) c. 94, as amended by St. 1933, c. 338,
be deposited by the Commissioner with the State Treasurer?
102 P.D. 12.
2. Will the provisions of sections 42A, 42B and 42C of G. L. (Ter. Ed.)
c. 94, as inserted by St. 1933, c. 338, § 2, be satisfied by legally setting off
by a bank and holding in the bank bonds or deposits of a milk dealer,
in an amount adequate to protect Massachusetts producers of milk, when
such bonds or other security set off and held by the bank are satisfactory
to the Commissioner of Agriculture?"
1. I answer your first question in the affirmative, except as it may
apply to the bond with surety given under the provisions of section 42A
of G. L. (Ter. Ed.) c. 94, as inserted by St. 1933, c. 338, which bond is
described in section 42B of said chapter 94, as amended.
Said section 42B describes specifically what forms of security given to
the Commissioner for the purpose of obtaining a license under said sec-
tion 42A must be deposited by the Commissioner of Agriculture with the
State Treasurer, in the following language: —
"Any cash or collateral deposited under this section or under section
forty-two D shall be deposited by the commissioner with the state treas-
urer, ..."
The said bond with surety is an original undertaking and does not fall
within the meaning of "collateral deposited," as these words are used in
the quoted sentence. These words as so used refer to stocks, bonds or
personal property given to the Commissioner to secure payment of any
note given to him under the provisions of said section 42B in lieu of the
said bond with surety, or given in addition to any other security, under
the provisions of section 42D.
2. I answer your second question in the negative. The provisions of
said sections 42A, 42B and 42C with respect to the securities which the
Commissioner is authorized to accept all indicate that such securities
must be such as are capable of being deposited with him in the first in-
stance, and that they must be so deposited. "Collateral," after its initial
receipt by the Commissioner, must then be deposited by him with the
State Treasurer, under the provisions of said section 42B. Your second
question presupposes a situation where securities and collateral are allocated
or physically set apart for the purpose of making good, if necessary, the
owner's obhgations under G. L. (Ter. Ed.) c. 94, but are not deposited
with the Commissioner in the first instance nor capable of deposit by
him with the State Treasurer thereafter. So remote a control of securi-
ties by the Commissioner was not within the contemplation of the Legis-
lature in enacting the applicable statute.
Very truly yours,
Joseph E. Warner, Attorney General.
State Election — Ballot — Candidate — Withdrawal.
G. L. (Ter. Ed.) c. 53, § 13, is not to be construed as applying to a person
not nominated by a political party, and such a person may have his
name omitted from the ballot for the State election at his request.
Oct. 10, 1934.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir: — You state that Irma Rich, a candidate nominated for
the office of State Auditor, has presented her withdrawal; and you re-
P.D. 12. 103
quest my opinion as to whether, in view of the provisions of G. L. (Ter.
Ed.) c. 53, § 13, you are authorized to leave her name off the ballot for
the State election.
Said section 13, so far as material, reads as follows: —
"A person nominated as a candidate for any state, city or town office
may withdraw his name from nomination by a request signed and duly
acknowledged by him, and filed with the officer with whom the nomina-
tion was filed, within the time prescribed by section eleven for filing
objections to certificates of nomination and nomination papers."
Section 11 of said chapter fixes the time for filing objections as "in the
case of state offices within the seventy-two week day hours, . . . suc-
ceeding five o'clock in the afternoon of the last day fixed for filing the
certificate of nomination or nomination papers to which objections are
made." This time has now expired.
I understand that Irma Rich's nomination was made by nomination
papers, signed by not less than one thousand voters, under the provisions
of G. L. (Ter. Ed.) c. 53, § 6.
The statutory provisions referring to a time for withdrawals, now
contained in said section 13, were first enacted in St. 1888, c. 436, entitled
"An Act to provide for printing and distributing ballots at the pubhc
expense, and to regulate voting at state and city elections." Section 8
of that act provided that a person may cause his name to be withdrawn
from nomination by request filed with the Secretary of the Common-
wealth "ten days," or with a city clerk "five days," previous to the day
of election, "and no name so withdrawn shall be printed upon the bal-
lot." At that time there was no statutory provision for filling vacancies
so caused. It seems clear, therefore, that the original purpose of the
provision referring to a time for withdrawal was solely to avoid the print-
ing on the ballot of the name of a candidate who did not wish to be voted
for.
By St. 1893, c. 417, § 84, the reference to time of withdrawal, as to
State offices, was changed to "seventy-two hours succeeding five o'clock
of the last day fixed by law within which nomination papers may be
filed." By section 87 of the same act provision was made for filling a
vacancy in case a candidate nominated should cause his name to be "with-
drawn from nomination," namely, "by the political party or other per-
sons making the original nomination." This provision is now section 14
of G. L. (Ter. Ed.) c. 53. It would appear, therefore, that the change
above noted in reference to the time for withdrawal was connected with
the provision for filling vacancies, and was intended to provide time
for so doing.
Neither of the two purposes of the statute (section 13 of G. L. [Ter. Ed. ]
c. 53) above referred to will be interfered with in permitting Irma Rich to
withdraw her name. Her name, if withdrawn, will not be printed on the
ballot. And also, although it may be possible theoretically that, if her
withdrawal had been earlier, the thousand or more persons who signed
her nomination papers might have desired to nominate some one else in
her place, and might all have agreed upon one and the same substitute
and been ready and able to take the steps necessary for making a sub-
stitute nomination, that is a theoretical rather than a practical pos-
sibility; and it should carry no weight against the arguments to be ad-
vanced against presenting to the electorate the name of a candidate who
104 P.D. 12.
does not wish to be one. I cannot see how injustice is done to any one
if Irma Rich is permitted to withdraw her name; and, on the other hand,
the undesirabihty of having on the ballot the name of a candidate who
is seeking to withdraw is plain. See Elswick v. Ratliff, 166 Ky. 149;
Bordwell v. Williams, 173 Cal. 283, 285.
In my opinion, therefore, section 13 of G. L. (Ter. Ed.) c. 53, consider-
ing its purpose and spirit, is not to be construed as applying to a person
not nominated by a political party; and I accordingly advise you that
Irma Rich's name may be omitted from the ballot.
Very truly yours,
Joseph E. Warner, Attorney General.
Commissioner of Agricvlture — Milk Dealers — Bonds and Securities —
Licensee.
Oct. 10, 1934.
Dr. Arthur W. Gilbert, Commissioner of Agriculture.
Dear Sir: — You have asked my opinion upon the following ques-
tions: —
"1. Does the bond or other security filed with the Commissioner of
Agriculture under the provisions of section 42B of G. L. (Ter. Ed.) c. 94,
as inserted by St. 1933, c. 338, § 2, give the same financial protection to
producers of milk without the Commonwealth as it does to producers of
milk within the Commonwealth?
2. If verified claims from producers of milk without the Commonwealth
are filed with the Commissioner of Agriculture in accordance with the
provisions of section 42C of said chapter 94, as amended, will it be neces-
sary for the Commissioner to certify such amounts as due and payable
from the proceeds of any bond or collateral filed with the Department of
Agriculture?"
I answer both questions in the negative.
Inasmuch as the bond which is required of one buying milk or cream
from producers, as a prerequisite to a license to engage in such business
(G. L. [Ter. Ed.] c. 94, as amended by the addition of section 42A), is to
be fixed as to its amount by a consideration of the price paid by such
licensee to '^Massachusetts producers," it is plain that the intention of the
Legislature was to limit the protection of the bond to Massachusetts
producers. Otherwise an absurd situation would be created whereby the
amount of a bond, fixed as is the one in question by the probable amounts
which will become due to Massachusetts producers only, would be sub-
ject to the claims of foreign producers as well, and, in view of the manner
in which the amount was fixed, would almost inevitably be inadequate
to satisfy the amounts due to both classes of producers. The same con-
siderations would likewise be true with regard to the amount of cash or
collateral deposited by the licensee to secure possible future claims under
the provisions of the statute.
The applicable provisions of the statute (G. L. [Ter. Ed.] c. 94, as
amended by St. 1933, c. 338, adding to it sections 42A to 42K) are as
follows : —
"Section 42A. ... A license shall not be issued unless the applicant
shall execute and file ... a bond or other security satisfactory to the
commissioner. . . .
P.D. 12. 105
Section 42B. The bond required by the preceding section shall be
payable to the commissioner and shall be in a sum fixed by him. Said
sum shall be substantially equivalent to the total purchase price, as
determined by the commissioner, of milk and cream purchased by the
applicant from Massachusetts producers in the average period between pay-
ments by him to producers during the three months immediately preced-
ing the date of application for a license, plus ten per cent of such total
purchase price, or, if the applicant is not then operating any milk plant
or manufactory, shall be substantially equivalent to the total purchase
price, as estimated by the commissioner, of milk and cream to be so pur-
chased in the estimated average period between payments by the appli-
cant to producers during the period for which the license is to issue, plus
ten per cent thereof. Such bond shall be in a form prescribed by the com-
missioner and shall be executed by the applicant for a license and by a
surety company authorized to do business in this commonwealth. It
shall be upon the condition that the applicant, if granted a license, shall
faithfully comply with the provisions of this chapter applicable to milk
plants and manufactories, shall not give any cause for the revocation of
his license under section forty-two H and shall promptly pay all amounts
due to producers for milk or cream sold by them to him during the license
period for which the application is made. In lieu of such bond, the com-
missioner may accept a note of like amount payable to him, secured by
a mortgage of real estate or personal property, or both, or by a deposit
of cash or collateral with him. Any such mortgage, or note secured by
cash or collateral, shall be upon the same condition as is herein provided
for a bond. Any cash or collateral deposited under this section or under
section forty-two D shall be deposited by the commissioner with the state
treasurer, who shall hold the same subject to section forty-two C."
Since a statute is not to be interpreted so as to produce an absurd result
or one clearly repugnant to the intent of the Legislature as indicated by
the context of the statute as a whole, it is obvious that where the word
"producers" occurs in sections 42B and 42C, subsequent to the words
"Massachusetts producers" in the first part of said section 42B, it must
be taken to be synonymous with "Massachusetts producers."
The bond and security required of the licensee were not intended to be
for the benefit of foreign producers, nor to be available for the payment
of their claims.
Very truly yours,
Joseph E. Warner, Attorney General.
Department of Public Health — Approval of Certificate — Contamination —
Shellfish.
The Department of Public Health has authority to revoke an approval
given to the certificate of a board of health of another State relative
to the noncontamination of grounds outside the Commonwealth from
which oysters are taken and transported.
Oct. 22, 1934.
Dr. Henry D. Chadwick, Commissioner of Public Health.
Dear Sir: — You have asked my opinion as to whether your depart-
ment may withdraw or revoke an approval given by it to a certificate filed
by a health department of another State relative to the noncontamination
106 P.D. 12.
of grounds outside this Commonwealth from which oysters are taken and
transported into Massachusetts for consumption.
G. L. (Ter. Ed.) c. 130, § 74 (added by amendment made by St. 1933,
c. 329, § 2) reads as follows: —
"Section 74. No person shall transport, or cause to be transported,
into this commonwealth for consumption as food any shellfish taken or
dug from grounds outside the commonwealth, or sell, cause to be sold, or
keep, offer or expose for sale for consumption as aforesaid any shellfish so
taken or dug, unless there is on file in the department of public health a
certificate, approved by said department, in which the state board or
department of health or other board or officer having like powers of the
state, country or province where such grounds are situated states that such
grounds are free from contamination, and also a certificate approved as
aforesaid, in which such state board or department of health or other board
or officer having like powers states that the establishment and equipment
of the person shipping said shellfish into the commonwealth are in good,
sanitary condition, nor unless the container of such shellfish shall at all
times, while in such transportation, bear a label or tag legibly marked with
the name and address of the producer and of the shipper thereof and the
numbers of such certificates, and the name of the place where and the date
when taken, and absence of such label or tag so marked or failure to allow
such inspection shall be prima facie evidence of violation of this section;
provided, that the foregoing provisions relative to transportation shall not
apply to common carriers, their servants or agents. No such certificate
shall be approved by the department of public health which does not meet
the provisions of the laws, rules, regulations and requirements of the United
States as to interstate commerce in shellfish. A list of certificates shall be
filed with the supervisor. Whoever violates any provision of this section
shall be punished by a fine of not less than twenty nor more than fifty
dollars, or by imprisonment for not more than thirty days, or both. The
provisions of this section shall be enforced by the department of public
health, local boards of health and all officers qualified to serve criminal
process."
It is obvious from the context of said chapter 130, as it relates to shell-
fish, that it was the intent of the Legislature to guard as carefully as pos-
sible against danger to the public health from shellfish taken from areas so
contaminated that the oysters or clams dug therefrom were likely to spread
disease when eaten by our citizens; and it is also obvious that section 74
was enacted with the same paramount intent and that it is specifically
intended to prevent the importation of polluted shellfish from other States.
The mere filing of certificates by the departments of health of other
States, as to the purity of the areas and the conditions under which shell-
fish are obtained for the market, was not said by the Legislature to be
sufficient to warrant the admission of such shellfish into this Common-
wealth, but the approval of your department of such certificates was re-
quired by the General Court before their acceptance. This is not the case
of the grant of an irrevocable license. In view of the paramount intention
of the Legislature to protect the public health of our own citizens against
polluted shellfish, it is idle to think that, because the approval of your
department was once given to the certificates filed by foreign boards of
health, it was intended that such approval should have to stand indefinitely,
irrespective of changing conditions, and that your approval should protect
the introduction of shellfish likely to cause disease into Massachusetts from
P.D. 12. 107
sources which had become contaminated since the approval was originally-
given.
On the contrary, it is the duty of your department, if it believes, upon
evidence sufficient in its judgment to warrant the conclusion, that foreign
shellfish grounds have become contaminated or that the establishment and
equipment of a foreign shipper have become unsanitary, to revoke the
approvals previously given to the certificates of boards of health of other
States, to notify the shipper of such revocation, and, if the latter should
persist in transporting thereafter, to proceed against any offender by
criminal prosecution in the courts.
Protection of our people against danger to health is the purpose of the
statute under consideration, and all its terms must be construed so as to
accomplish that purpose most effectively, and no narrow interpretation
favorable to foreign shippers and dangerous to the health of our own citizens
is warranted.
Very truly yours,
Joseph E. Warner, Attorney General.
Illegal Parking — Disposition of Fines.
Oct. 27, 1934.
George B. Stebbins, Esq., Clerk, Municipal Court of the West Roxbury
District.
Dear Sir: — You have sent me the following communication: —
"Your opinion is respectfully requested as to the disposition of fines
and forfeitures received by clerks of municipal and district courts, under
the provisions of section 20A of G. L. (Ter. Ed.) c. 90, as added by St.
1934, c. 368, § 1.
Pursuant to St. 1934, c. 364, such fines are to be paid to the city or
town where the offense is committed, on and after December 1, 1934,
so that the question comes on their disposition in October and November,
1934.
It is a matter of importance to me to know whether I shall pay such
fines as I may receive as above, during October and November, to the
State Treasurer, as required by G. L. (Ter. Ed.) c. 90, § 34, or to the city
collector of Boston, as required by G. L. (Ter. Ed.) c. 280, § 2."
The Attorney General is not required by law to advise clerks of courts
with relation to the discharge of their duties, and such officials are not
bound by his opinion (I Op. Atty. Gen. 595). The matter with relation
to which you inquire is one as to which you must shortly act, and your
actions in this respect will necessarily be so closely connected with the
direct interests of the Commonwealth and its cities and towns that I am
setting forth, at your request, the opinion which I hold relative to the
subject matter of your inquiry.
G. L. (Ter. Ed.) c. 90, § 34, in its present form, which will remain in
effect until December 1st, at which time its repeal will be worked by
St. 1934, c. 364, provides: —
"The fees and fines received under the preceding sections, . . . shall
be paid . . . into the treasury of the commonwealth, ..."
Although G. L. (Ter. Ed.) c. 90, now contains section 20A, inserted
therein by St. 1934, c. 368, which deals with illegal parking in certain
108 P.D. 12.
particulars, and is now a section "preceding" said section 34, I am of
the opinion that fines paid for illegal parking are not "received" under
said section 20A but are received under and by virtue of G. L. (Ter. Ed.)
c. 40, §§21 and 22, and therefore are not governed as to their disposition
by said section 34 but are governed by the terms of G. L. (Ter. Ed.)
c. 280, § 2, which provides: —
"... A fine or forfeiture imposed by a district court or trial justice
shall, except as otherwise provided, be paid to the town where the crime
or offence was committed. . . ."
Illegal parking is not a violation of any section of G. L. (Ter. Ed.)
c. 90, for it does not appear in any part of said chapter 90 that the Legis-
lature has regulated the parking of motor vehicles, but it may be a viola-
tion of a local ordinance adopted by a city or town under authority granted
by the Legislature.
The enabling statute is G, L. (Ter. Ed.) c. 40, § 22, which provides as
follows : —
"Except as otherwise provided in section eighteen of chapter ninety
and subject, so far as applicable, to section two of chapter eighty-five
and sections eight and nine of chapter eighty-nine, a city or town may
make ordinances or by-laws, or the board of aldermen or the selectmen
may make rules and orders, for the regulation of carriages and vehicles
used therein, with penalties for the violation thereof not exceeding twenty
dollars for each offence; and may annually receive one dollar for each
license granted to a person to use any such carriage or vehicle therein.
Such rules and orders shall not take effect until they have been published
at least once in a newspaper published in the city, town or county."
The disposition of all penalties for the violation of ordinances, by-laws
and regulations of cities and towns is specifically provided for by G. L.
(Ter. Ed.) c. 40, § 21, wherein it is provided that they "may be recovered
by indictment or on complaint before a district court or trial justice,
and shall enure to the town or to such uses as it may direct.^'
Nowhere does it appear in G. L. (Ter. Ed.) c. 90, § 20A, inserted by
St. 1934, c. 368, expressly or by implication, that the Legislature in-
tended to repeal so much of G. L. (Ter. Ed.) c. 40, § 21, as might apply
to parking ordinances, by-laws, rules and regulations adopted by cities
or towns, or by city councils or selectmen.
Nor does it appear from said G. L. (Ter. Ed.) c. 90, § 20A, that the
Legislature intended itself to declare any act of parking an offense or that
it intended to do anything more than to provide a convenient means
whereby fines set up by the action of cities and towns, under said G. L.
(Ter. Ed.) c. 40, § 22, for parking offenses created as such by them under
said section might be collected. It cannot well be said that such fines
are "received under the preceding sections," those of G. L. (Ter. Ed.)
c. 90, prior to section 34, as the quoted words are used in said section 34.
It follows that fines and forfeitures imposed for the violation of ordi-
nances, by-laws, rules and regulations, made or promulgated by cities
and towns or city councils or selectmen, regulating the parking of motor
vehicles are to be disposed of in the same manner as are fines and for-
feitures imposed for violation of all other similar ordinances, by-laws,
rules and regulations, namely, by payment to the city or town where the
violation occurs.
Very truly yours,
Joseph E. Warner, Attorney General.
P.D. 12. 109
Alcoholic Beverages — Municipality — Licenses.
Nov. 9, 1934.
Alcoholic Beverages Control Commission.
Gentlemen: — You request my opinion "as to the effect of a tie vote
in any city or town on the question of granting hcenses for the sale of alco-
hohc beverages."
The vote is upon the question: ''Shall Hcenses be granted . . . ?"
G. L. (Ter. Ed.) c. 138, § 11, as inserted by St. 1933, c. 376, § 2. Said sec-
tion 11 further provides: —
"If a majority of the votes cast in a city or town in answer to question
one are in the affirmative, such city or town shall be taken to have author-
ized, for the two calendar years next succeeding, the sale in such city or
town of all alcoholic beverages, subject to the provisions of this chapter."
By the terms of the statute the sale of liquor can be authorized only if a
majority of the votes are in the affirmative. Accordingly, a tie vote cannot
have the effect of authorizing the sale.
Very truly yours,
Joseph E. Warner, Attorney General.
Trust Company — Officer — Dual Capacity.
The Commissioner of Banks has authority, under G. L. (Ter. Ed.) c. 172,
§ 14, as inserted by St. 1934, c. 349, § 8, to issue a permit to an officer
of a trust company to act as an officer in more than one other trust
company.
Nov. 13, 1934.
Hon. Arthur Guy, Commissioner of Banks.
Dear Sir: — You request my opinion as to whether, under G. L. (Ter.
Ed.) c. 172, § 14, as inserted by St. 1934, c. 349, § 8, you have authority to
issue a permit to an officer, director or employee of a trust company to act
as an officer, director or employee in more than one other trust company
or national banking association.
Said chapter 349 is entitled "An Act making certain changes in the law
relating to trust companies." Section 8 of that act (amending section 14
of G. L. [Ter. Ed.] c. 172), reads, in part, as follows: —
"... From and after January first, nineteen hundred and thirty-five,
no director, officer or employee of any such corporation shall be at the same
time a director, officer or employee of a corporation, other than a mutual
savings bank, co-operative bank, Morris Plan Company or credit union,
or a member of a partnership organized for any purpose whatsoever which
makes a business of making loans secured by stock or bond collateral or
shall at the same time be individually engaged in such business; provided,
that nothing in this section shall prohibit a director, officer or employee
of any such corporation from being at the same time an officer, director or
employee of another such corporation or national banking association, if,
in such case, there is in force a permit therefor issued by the commissioner,
who is hereby authorized to issue such permit if, in his judgment, it is not
incompatible with the public interest, and to revoke any such permit when-
ever he finds, after reasonable notice and opportunity to be heard, that the
public interest requires its revocation. ..."
no P.D. 12.
The question is whether the word "another," as used with "such cor-
poration [i.e., a trust company] or national banking association," is to be
construed as meaning one other, and only one, or as meaning any other.
The Century Dictionary states that the word "another" is "usually
written an other; . . . The uses are simply those of other with an preced-
ing."
To construe the statute as meaning that the Commissioner of Banks
should have power to permit service in one other trust company or national
bank, and only one, seems to me a very forced construction, and a construc-
tion that would not naturally occur to a person reading the statute. If the
Legislature had intended to restrict the power of the Commissioner of
Banks to issuing a permit for service in only one corporation, it would
naturally have said "one other" instead of "another." I am constrained
to advise you that your power to issue permits under said section 8 is not
restricted to one other corporation.
It will be noted that this construction in no way jeopardizes the interests
of the public, for an officer or employee of a trust company cannot serve
in any other trust company or national bank except with the permission
of the Commissioner of Banks, given after he has determined that such
service is "not incompatible with the public interest," and which permis-
sion, moreover, the Commissioner of Banks can at any time revoke.
Very truly yours,
Joseph E. Warner, Attorney General.
Commonwealth — Salaries — Restoration.
The salary reductions of officers and employees of the Commonwealth,
formerly provided for by statute, must be restored on December 1,
1934.
Nov. 19, 1934.
Hon. George E. Murphy, Commissioner and Comptroller.
Dear Sir : — You have asked my opinion as to whether the salary
reductions of officers and employees of the Commonwealth are to be
restored on December 1, 1934, in accordance with the provisions of St.
1933, c. 105, § 5. I advise you that such restoration is required by the
acts of the General Court.
The intent of the legislative enactments is clear upon this point, and
the mandate of the General Court is to be carried into effect by you and
all other officers concerned.
The first statute which provided for a temporary reduction in the regu-
lar rate of salaries (St. 1933, c. 105) contained an emergency preamble,
and it is obvious from its context that it was intended to effect such
reduction only for the limited period between its enactment and the end
of November, 1934. It is plain from its context that the legislative inten-
tion was to provide for the immediate payment of salaries as due at their
original or unreduced basis on and after December 1, 1934.
St. 1933, c. 105, § 5, provides: —
"The reduction in salaries provided for by this act shall be effective
only for the period beginning April first in the current year and ending
November thirtieth, nineteen hundred and thirty-four, except that the
reduction in salaries of the members of the general court shall be effective
as of the first Wednesday in January of the current year and shall continue
P.D. 12. Ill
only until the end of the legislative year of nineteen hundred and thirty-
four."
No contrary intent is indicated in St. 1933, c. 296, a statute making an
appropriation for certain increases in particular salaries; and St. 1934,
c. 194, an emergency measure for the partial restoration of the salary
reductions prior to December 1st, reiterates, by reference to the said
chapter 105, the intent of the General Court, unmistakably expressed,
that payment in full of salaries should be resumed December 1, 1934.
You have called my attention to G. L. (Ter. Ed.) c. 29, § 10, which
reads : —
"Officers or departments having charge or supervision of expenditures
in behalf of the commonwealth may continue expenditures in each year
at the rate authorized by appropriations for the preceding fiscal year,
until the general court makes an appropriation therefor or provides
otherwise."
I assume, since you have alluded to said section 10, that the rate author-
ized by appropriations for salaries for the present fiscal year is not a rate
sufficiently high to pay salaries at the original or unreduced rate. Even
if this be the fact, the provisions of the general law in said section 10,
with relation to continuing expenditures in each year at the rate author-
ized by appropriations for the preceding fiscal year, are to be read in con-
nection with the later acts of 1933 and 1934, above referred to, which
deal in a more minute and definite way with a particular and definite
phase of the general subject treated by said section 10.
It is a general principle of statutory interpretation that under such cir-
cumstances the earlier and later statutes are to be read together and
harmonized, with a view to giving efi"ect to a consistent legislative policy,
but, to the extent that there be any repugnancy between them, a later
statute dealing with the common subject matter in a definite, exphcit or
more particular manner will prevail over an earlier general statute. If
there be conflict between the earlier general law and the later and more
specific and particular statute, the latter is to be treated as creating an
exception to the earlier general statute.
It is plain that in enacting St. 1933, c. 105, and St. 1934, c. 194, it was
the intent of the General Court that the payment of salaries at the original
or unreduced rate after December 1, 1934, should have the effect of an
exception to the provisions of the general law as set forth in comprehen-
sive terms for the direction of officials by G. L. (Ter. Ed.) c. 29, § 10,
and that said chapter 29, section 10, should not obstruct the paramount
intent of the Legislature to restore salaries to their former amounts on
and after December 1, 1934.
Very truly yours,
Joseph E. Warner, Attorney General.
112 P.D. 12.
Registration in Medicine — Examination — Qualification — High School.
The words "public high school" in G. L. (Ter. Ed.) c. 112, § 2, as used
with relation to the qualification of an applicant for examination
for registration as a qualified physician, apply only to the ordinary
day high school referred to in G. L. (Ter. Ed.) c. 71, § 4, and do not
apply to evening high schools as authorized by G. L. (Ter. Ed.)
c. 71, § 19.
Nov. 23, 1934.
Mr. Michael Zack, Director of Registration, Department of Civil Service
and Registration.
Dear Sir : — You have requested my opinion as to the meaning of the
words "pubhc high school" as used in G. L. (Ter. Ed.) c. 112, § 2, second
sentence, and more particularly whether these words refer to a day high
school solely, or whether they are equally applicable to a night high
school.
The second sentence of section 2 of said chapter 112 reads: —
"Each applicant, who shall furnish the board with satisfactory proof
that he is twenty-one or over and of good moral character, that he pos-
sesses the educational qualifications required for graduation from a pub-
lic 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 seventeen, a matric-
ulant 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."
The provisions of law regulating the establishment and maintenance
of high schools are contained in G. L. (Ter. Ed.) c. 71, § 4, which reads as
follows : —
"Every town containing, according to the latest census, state or na-
tional, five hundred families or householders, shall, unless specifically
exempted by the department and under conditions defined by it, main-
tain a high school, adequately equipped, which shall be kept by a princi-
pal and such assistants as may be needed, of competent ability and good
morals, who shall give instruction in such subjects as the school commit-
tee considers expedient. One or more courses of study, at least four years
in length, shall be maintained in such high school and it shall be kept
open for the benefit of all the inhabitants of the town for at least one
hundred and eighty days, exclusive of vacations, in each school year,
unless specifically exempted as to any one school year by the department
because of epidemic or other emergency. Each high school maintained
by a town required to belong to a superintendency union shall be conducted
in accordance with standards of organization, equipment and instruction
approved from time to time by the department."
The provisions of law relative to the establishment and maintenance
of evening high schools are contained in G. L. (Ter. Ed.) c. 71, § 19, which
reads as follows: —
P.D. 12. 113
"Every city of fifty thousand inhabitants shall maintain annually an
evening high school, in which shall be taught such subjects as the school
committee considers expedient, if fifty or more residents, fourteen years
or over, competent in the opinion of the committee to pursue high school
studies, shall petition in writing for an evening high school and certify
that they desire to attend."
It is to be noted that the establishment of evening high schools is limited
to cities of over 50,000 inhabitants, whereas day high schools must be estab-
lished in every city or town having more than 500 families; and if the
city or town has less than 500 families, provisions are made for the grant-
ing of the opportunity for a high school education at the public expense in
schools maintained by other towns. See G. L. (Ter. Ed.) c. 71, §§ 5-10,
inclusive.
It is also to be noted that section 19, above quoted, contains no restric-
tions or limitations relative to the nature or extent of the courses to be
given at evening high schools, whereas said section 4, with relation to
the other kind of high schools, provides that "one or more courses of
study, at least four j^ears in length, shall be maintained in such high
school and it shall be kept open for the benefit of all the inhabitants of
the town for at least one hundred and eighty days, exclusive of vaca-
tions, in each school year."
In view of the varying requirements as to evening and day high schools,
as pointed out in the preceding paragraph, it is my opinion that the
words "public high school" as used in G. L. (Ter. Ed.) c. 112, § 2, apply
only to the ordinary day high school referred to in said G. L. (Ter. Ed.)
c. 71, § 4, and do not apply to evening high schools as authorized by
G. L. (Ter. Ed.) c. 71, § 19. No hardship is imposed by this construc-
tion, inasmuch as said G. L. (Ter. Ed.) c. 112, § 2, does not require gradu-
ation from a high school as a prerequisite to the taking of an examination,
but merely requires that the applicant shall possess "the educational
qualifications required for graduation from a public high school." If,
therefore, any particular evening high school actually provides for a course
of study comparable to that usually followed by a day high school, and
meets the requirements as to time, set forth in G. L. (Ter. Ed.) c. 71, § 5,
a student taking such course compHes with the requirements of G. L.
(Ter. Ed.) c. 112, § 2.
It would appear, therefore, that the previous practice of the Board,
as set forth in your request, whereby the Board accepts education in a
night high school only in so far as it is evaluated in terms of day high
school work, is a reasonable and proper procedure for the Board to follow.
Very truly yours,
Joseph E. Warner, Attorney General.
114 P.D. 12.
Department of Education — State Teachers College — Minor Child —
Resident.
A minor is not entitled to the privilege of instruction in a State Teachers
College, as a resident of Massachusetts, when the parents are resi-
dents of another State.
Nov. 24, 1934.
Dr. Payson Smith, Commissioner of Education.
Dear Sir : — You have asked my advice on the following matter : —
"Will you kindly advise me whether a minor child is entitled to the
privilege of instruction as a resident of Massachusetts in a State Teachers
College when her parents have been residents of the city of Albany, New
York, since May, 1934."
In connection therewith you have advised me as to the following facts: —
"The father of a student now registered at the State Teachers College
at North Adams moved from the city of Pittsfield, Massachusetts, to
Albany, New York, in May, 1934. He protests the payment of the tuition
fee for his daughter in the State Teachers College at North Adams on the
ground that he has paid a poll tax in Pittsfield and that his legal residence
is in Pittsfield until such time as he will be entitled to vote in Albany."
You inform me that the Department of Education has established a
rule concerning tuition fees for nonresident students at a State Teachers
College, which action has been taken, I assume, under the provisions of
G. L. (Ter. Ed.) c. 73, § 6.
I answer your question in the negative.
Said G. L. (Ter. Ed.) c. 73, § 6, provides as follows: —
"Upon payment of tuition fees the department may receive students
not residents of the commonwealth in state normal schools."
Ordinarily, as a matter of law, the residence of a minor child is that of
the parents. The determination of just where any given person has a
residence is often a matter of some difficulty. It is governed, in part, by
the intention of the person in question, and that intention is itself to be
determined by a consideration of various facts having in themselves some
tendency to prove what that intention is. The general principle of law
which is to be applied in any particular instance in determining whether
a certain person is a nonresident of Massachusetts may be stated as
follows: A nonresident of Massachusetts is one who makes his home at a
place outside the Commonwealth, with no present intention of removing
from such place. The place whereat such a person pays a poll tax might
be some evidence to be considered in determining whether his intention
were to make his home at the place outside Massachusetts where he now
stays, or whether he is intending to remain there only temporarily and
eventually to return to the Commonwealth. Such evidence would not
be entitled to much weight if, as here, the poll tax were levied and be-
came due prior to the person's removal. In any event, such a piece of
evidence would not be conclusive, and, in connection with other contrary
pieces of evidence which tended to show a present intent to live per-
manently at a place outside Massachusetts, would not of itself establish
the fact of residence in this Commonwealth.
In regard to a pupil at a State Teachers College, it is for you, in the
first instance, to determine under the general principles of law which I
P.D. 12. 115
have suggested where her place of residence is, and in doing so you will
necessarily determine where the residence of her parents is, she being a
minor.
You have stated in the last paragraph of your letter, with relation to
such pupil, that ''her parents have been residents of the city of Albany,
New York, since May, 1934." If that is your determination, arrived at
by a consideration of all the factors which I have indicated, your con-
clusion that the minor pupil was herself a nonresident of Massachusetts
would not be unreasonable.
Very truly yours,
Joseph E. Warner, Attorney General.
City of Lowell — Finance Commission — Appropriation — Lowell Textile
Institute.
The city of Lowell is obliged to make an appropriation for the current
fiscal year for the Lowell Textile Institute.
Nov. 28, 1934.
Lowell Finance Commission.
Gentlemen: — You have asked my opinion upon the following ques-
tion of law : —
"The Finance Commission of Lowell, a State board established by St.
1931, c. 411, requests your opinion as to whether or not the city of Lowell
is obliged by law to appropriate yearly the sum of $10,000 toward the
maintenance of the Lowell Textile Institute, which is also a State insti-
tution."
By a long line of opinions of the Attorneys General in relation to boards
and officers in like situation as your Commission, with regard to appoint-
ment and sphere of duties, it has become the settled practice of this de-
partment to give opinions to such boards and officers only upon the
specific and limited line of inquiry as to questions involving a construction
of statutes creating and governing such boards and officers. I doubt
whether I am required to advise your Commission as to your instant in-
quiry; nevertheless, I prefer to express an opinion for your guidance
with relation thereto, inasmuch as your inquiry is connected with the
administration of the finances of the Commonwealth as a whole, and
that I may beyond all question perform my full duty as an officer thereof,
even as to a matter where it may well be said that I am not required by
strict interpretation of the law to act.
Resolves of 1917, c. 85, is as follows: —
''Resolved, That there be allowed and paid out of the treasury of the
commonwealth from the ordinary revenue, to the trustees of the Lowell
textile school the sum of fifty thousand dollars for the maintenance of
said school from July first, nineteen hundred and seventeen to June
thirtieth, nineteen hundred and eighteen; the sum of sixteen thousand
eight hundred and twenty-five dollars for building construction and im-
provements, fifteen thousand eight hundred and twenty-five dollars of
which shall be used for adding a second story on Kitson hall, and the sum
of one thousand dollars for school grounds, including the approaches
thereto ; provided, that no part of this sum shall be paid until satisfactory
evidence has been furnished to the auditor of the commonwealth that an
116 P.D. 12.
additional sum of ten thousand dollars has been paid to the said trustees
by the city of Lowell, or has been received by them from other sources.
The city of Lowell is hereby authorized and directed to raise annually by
taxation and pay to said trustees such a sum of money, not less than ten
thousand dollars, as may be necessary to secure the amounts authorized
by this resolve which may be expended to provide for evening instruction
in the said school for residents of Lowell."
If this be read in connection with the appropriation bill of the current
year, St. 1934, c. 162, § 2, item 377, which is as follows: —
"For the maintenance of the Lowell textile institute, with the approval
of the commissioner of education and the trustees, a sum not exceeding
one hundred fifty-three thousand eight hundred and twenty-five dollars,
of which sum ten thousand dollars is to be contributed by the city of
Lowell, and the city of Lowell is hereby authorized to raise by taxation
the said sum of ten thousand dollars . . . $153,825.00"
it becomes plain that the Legislature of 1934, in making an appropriation
for the benefit of the Lowell Textile School, enacted the accompanying
authorization to the city to raise money in connection with the said ap-
propriation in a mandatory sense similar to that which was employed in
said Resolves of 1917, c. 85. The same course has been followed in ap-
propriation bills by Legislatures beginning with 1919.
Accordingly, I answer your question to the effect that so far as this
year is concerned the city of Lowell is obliged to make the appropriation
designated in said St. 1934, c. 162, § 2, item 377, for the institution therein
mentioned.
Very truly yours,
Joseph E. Warner, Attorney General.
Cities and Towns — Laborers — Vacation.
Nov. 28, 1934.
Miss Mary E. Meehan, Acting Commissioner of Labor and Industries.
Dear Madam: — You request my opinion as to the application, in
view of certain provisions now existing, of the provisions of G. L. (Ter.
Ed.) c. 41, § 111, as amended by St. 1932, c. 109, relating to vacations
for municipal laborers. This section provides for "an annual vacation of
not less than two weeks without loss of pay" to laborers "regularly em-
ployed" by a town.
The statute further provides : —
"A person shall be deemed to be regularly employed, within the mean-
ing of this section, if he has actually worked for a city or town for thirty-
two weeks in the aggregate during the preceding twelve months, not-
withstanding that he has ceased, otherwise than by voluntary withdrawal
or dismissal for cause in accordance with law, to be in the employ of such
city or town."
You state that owing to the strained financial condition of some cities
and towns the hours of laborers have been curtailed, so that they have
not worked more than perhaps three days a week, but have so worked
during more than thirty-two weeks; and you ask my opinion as to whether
such laborers are entitled to the vacation of two weeks provided for by
P.D. 12. 117
the statute. In my opinion, they are. They have remained, as I under-
stand it, regular employees in the labor service of the town, so far as the
town has any regular labor service. The fact that the work of all laborers
has been curtailed should not have the effect of depriving them of the
vacation privilege provided for by the Legislature.
You also ask my opinion as to what rate of pay these laborers should
receive during the two v/eeks' vacation period. In my opinion, it should
be the amount of pay which they are receiving at the time when the
vacation is declared, that is to say, the amount which they would receive
if they remained at work.
Very truly yours,
Joseph E. Warner, Attorney General.
118 P.D. 12.
INDEX TO OPINIONS
PAGE
Alcoholic Beverages Control Commission; authority; refusal of license . . 90
Municipality; licenses 109
Banks, Commissioner of; administrative powers; closed banks ... 56
Broker's registration; revocation 70
Conservation, Commissioner of; arbitration; easement; fishing rights . . C^^
Constitutional law; alcoholic beverages; importation; citizen .... 5/
Sales; aliens 54
Insurance; agent's commissions .83
Contract for public work; bond; preferences 63
Correction, Department of; control of penal institutions; local licensing
and inspecting authorities 75
Prison labor; sales 85
Drug store; employee; apprentice; unregistered stockholder .... 55
Registration of store 91
Education, Department of; school nurses; qualifications 88
Training of the blind; advanced instruction 89
Firearms; sale; municipality; license 64
Hours of labor; contract; Federal-aided projects 62
Women and children; public service; hotels 49
Insurance; agent's commissions 83
Foreign fraternal benefit society; issuance of annuity contracts ... 73
Optional annuity settlement; policy 68
Pohcy; approval 60
Reduction of par value of shares of an insurance company; certificate . 67
Labor and Industries, Department of; rules; municipal building; struc-
tural painting 61
Laborers; cities and towns; vacation 116
Lands acquired by the Commonwealth; sale; departmental funds ... 49
Licenses; sale of lacquers containing wood or denatured alcohol ... 46
Lowell, city of; finance commission; appropriation; Lowell Textile Institute 115
Medicine, registration in; examination; qualification; "public high school" 112
Metropolitan District Commission; contract; payment 42
Milk; foreign substance; vitamin D concentrate 50
Milk dealers; deposit of bonds and securities with the Commissioner of
Agriculture 101
Protection of producers of milk within and without the Commonwealth 104
Minimum Wage Commission; Commissioner of Labor and Industries; de-
cree; order 94
Minor; employment in broadcasting; mercantile establishment ... 51
Resident; instruction in a State Teachers College 114
Motor vehicles; illegal parking; disposition of fines 107
Registration; heir 69
Motor Vehicles, Registrar of; authority; standards of fitness for operators;
foreign States 87
Necessaries of Life, Director of Division on the; Department of Public
Utilities 101
Pharmacists; alcoholic beverages; sale; alien 65
Sales of alcohol as a drug or medicine; Sundays and holidays ... 53
Transportation; licenses 77
Certificate of fitness; revocation 81
Pilot Commissioners; incoming steamers; Port of Boston; Port of Lynn . 93
Political convention; delegates; vacancies 82
Public Health, Dcpartmcnit of; approval of certificate of board of health of
another State; slicllfish; contamination ^dS^
Frozen desserts; license; local board of health 97
P.D. 12. 119
PAGE
"Public high school"; interpretation 112
Public Utilities, Department of; broker's registration; revocation ... 70
Public Works, Department of; canal; easement; nuisance .... 96
Retirement system ; accidental injury; death; pension to widow of employee 79
Probation officer; clerk of court pro tem.; court officer .... 72
Salaries of officers and employees of the Commonwealth; restoration . .110
School nurses; qualifications 88
Schoolhouses; city of Boston; janitors; custodians 74
State election; ballot; candidate; withdrawal 102
Teachers' retirement system; public school; Punchard Academy ... 86
Trapping; poison 76
Trust company; officer; dual capacity 109
Reorganization; interpretation of statutes; preferred stock . . -42, 100
Resumption of business permitted by the Commissioner of Banks; pre-
ferred stock 48
Workmen's Compensation Act; municipalities; E. R. A. projects ... 80
Trustee; foreign insurance company; deposits .85
120 ' 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 delivery up and return of any offender
who has fled from the justice of this Commonwealth, must be made by the district
or prosecuting attorney for the county or district in which the offence was 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.
(d) That the person named as agent is a proper person, and that he has no
private interest in the arrest of the fugitive.
(e) If there has been any former application for a requisition for the same person
growing out of the same transaction, it must be so stated, with an explanation of
the reasons for a second request, together with the date of such apphcation, 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.
ig) That the application is not made for the purpose of enforcing the collection
of a debt, or for any private purpose whatever; and that, if the requisition applied
for be granted, the criminal proceedings shall not be used for any of said objects.
(h) The nature of the crime charged, with a reference, when practicable, to
the particular statute defining and punishing the same.
(i) If the offence charged is not of recent occurrence, a satisfactory reason
must be given for the delay in making the application.
1. In all cases of fraud, false pretences, embezzlement or forgery, when made
a crime by the common law, or any penal code or statute, the affidavit of the
principal complaining witness or informant that the application is made in good
faith, for the sole purpose of punishing the accused, and that he does not desire
or expect to use the prosecution for the purpose of collecting a debt, or for any
private purpose, and will not directly or indirectly use the same for any of said
purposes, shall be required, or a sufficient reason given for the absence of such
affidavit.
2. Proof by affidavit of facts and circumstances satisfying the Executive that
the alleged criminal has fled from the justice of the State, and is in the State on
whose Executive the demand is requested to be made, must be given. The fact
that the alleged criminal was in the State where the alleged crime was committed
at the time of the commission thereof, and is found in the State upon which the
requisition was made, shall be sufficient evidence, in the absence of other proof,
that he is a fugitive from justice.
3. If an indictment has been found, certified copies, in duplicate, must accom-
pany the application.
4. If an indictment has not been found by a grand jury, the facts and circum-
stances showing the commission of the crime charged, and that the accused perpe-
trated the same, must be shown by affidavits taken before a magistrate. (A notary
pubUc 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. 121
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 duphcate certified copies of the same, together
with the returns thereto, if any, must be furnished upon an appHcation. The
affidavit or affidavits should contain sufficient facts to make out a prima facie case
of guilt, and should not be a reiteration of the form of the complaint nor contain
conclusions of law.
5. The official character of the officer taking the affidavits or depositions, and
of the officer who issued the warrant, must be duly certified.
6. Upon the renewal of an application, — for example, on the ground that
the fugitive has fled to another State, not having been found in the State on which
the first was granted, — new or certified copies of papers, in conformity with the
above rules, must be furnished.
7. In the case of any person who has been convicted of any crime, and escapes
after conviction, or while serving his sentence, the apphcation may be made by
the jailer, sheriff, or other officer having him in custody, and shall be accom-
panied by certified copies of the indictment or information, record of conviction
and sentence upon which the person is held, with the affidavit of such person
having him in custody, showing such escape, with the circumstances attending
the same.
8. No requisition will be made for the extradition of any fugitive except in
compliance with these rules.
750. 5-35. Order 4591.
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