(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

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

Public Document No. 12 



Cl)e Commontoeaiti) of ^a00aci)U0ett0 



REPORT 



OF TBB 



ATTORNEY GENERAL 



Year ending November 30, 1935 




Public Document 



No. 12 



Cfje Commontoealtj) of 0^a00aci)ui5etti8; 



REPORT 



i 



Ao;^' 



ATTORNEY GENERALs 



Year ending November 30, 1935 - d? 



% 







S^TlLimRYOFMllSSftCHOIEW 

jm 1^ 1936 



OrFlCljLLB 



Cfje Commontoealtl) of ^m$ac\^mtm 



Department of the Attorney General, 
Boston, January 15, 1936. 

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, 1935. 



Very respectfully, 



PAUL A. DEVER, 
Attorney General. 



1^55-3? 
C{)e Commontuealtf) of ^a00acl)U0ett0 



DEPARTMENT OF THE ATTORNEY GENERAL. 
State House. 



Attorney General. 
PAUL A. DEVER. 



Assistants. 
James J. Ronan. 
Henry P. Fielding. ^ 
Roger Clapp. 
Charles F. Lovejoy. - 
John S. Derham. 
Arthur V. Sullivan. 
Edward McPartlin. 
Maurice M. Goldman. 
Walter W. O'Donnell. 
John Patrick Connolly. 
Jennie Loitman Barron. ' 
Raymond H. Fa\'reau. * 
James J. Bacigalupo. 
Donald R. Simpson. 
GoLDA Richmond Walters. * 

Chief Clerk. 
Louis H. Freese. 

Cashier. 
Harold J. Welch. 



' Appointed January 31, 1935. * Appointed July 17, 1935. 

* Resigned July 16, 1935. s Appointed September 3, 1935. 

' Resigned August 31, 1935. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Tear. 

General appropriation for 1935 $132,230 00 

Balance brought forward from 1934 appropriation .... 556 47 

Appropriation for small claims 10,000 00 

Appropriation under G. L. (Ter. Ed.) c. 12, § 3B . . . . 14,000 00 

$156,786 47 

Expenditures. 

For salary of Attorney General $8,000 00 

For salaries of assistants 55,324 64 

For salaries of all other employees 32,376 14 

For sheriffs' fees, court stenographers and all other special services . 25,010 22 

For law library 902 83 

For office expenses and travel 8,950 51 

For court expenses (includes witness fees charged to incidentals, 

$151.64) 1,804 37 

For small claims 9,958 31 

For claims under G. L. (Ter. Ed.) c. 12, § 3B 11,365 55 

Total expenditures $153,692 57 

Balance $3,093 90 



Cfte Commontoealtli of ^a0sac!)usetts 



Department of the Attorney General, 
Boston, January 15, 1936. 

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, 1935, to the number of 8,540, are tabulated below: 



Corporate franchise tax cases .... 

Extradition and interstate rendition 

Land Court petitions ...... 

Land-damage cases arising from the taking of land: 

Department of Public Works 

Department of Mental Diseases 

Department of Conservation .... 

Department of Correction .... 

Metropolitan District Commission . 

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

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

Settlement cases for support of persons in State hospitals 

All other cases not enumerated above, which include suits to require the filing 

of returns by corporations and individuals and the collection of money 

due the Commonwealth ......... 

Indictments for murder, capital cases . . . 

Disposed of . . . . . . . . . . .19 

Now pending .......... 11 



1,852 

133 

38 

371 

2 

1 

1 

55 

49 

427 

53 

350 

26 



5,152 
30 



6 P.D. 12 

Corrupt Practices in Elections. 

It is my sincere opinion that one of the great menaces to truly responsive 
democratic government is the inordinate and increasingly large expenditures 
made necessary in political campaigns. The demands of the electorate, the 
competition with candidates who have large sums of money at their disposal, 
and the modern inventions for the dissemination of propaganda, all combine to 
cause the expenditure of funds by a candidate for public office totally dispropor- 
tionate to the proprieties of an election. 

The demand for heavy campaign expenditures by parties and candidates, 
however legitimate the objects for which they are incurred, often makes tempting 
the offer of contributions from those who have a special interest to serve. To 
the end that the contributions of special interests might be effectually prevented, 
I believe that the State should assume every legitimate campaign and election 
expense. 

I therefore recommend that an official campaign bulletin of information to the 
voters, together with a so-called sample ballot, should be supplied by the State, 
giving the duly nominated candidates of each political party an impartial oppor- 
tunity for statements regarding the qualifications and the issues which they are 
attempting to present to the public. I also believe that there should be ample 
provision, at public expense, for meeting places for the discussion of political 
principles and issues, and that there are several other items of necessary cam- 
paign expenditure which might well be assumed by the Commonwealth. 

I am persuaded that the adoption of a program calHng for the strict prohibition 
of other than legitimate expenditures and the assumption by the Commonwealth 
of the costs of legitimate political activity would ultimately be in the interest of 
a genuine economy. I am free to admit that the program which I suggest is one 
which should not be hastily adopted. It should have the study and consideration 
of students of government, combined with the knowledge of those who have 
spent years in active political life. 

I therefore recommend to the General Court the appointment of a recess com- 
mission to study the general subject of the conduct of pofitical campaigns, with 
power to recommend to the succeeding General Court such proposals as they 
feel practicable and pertinent in the premises. 

Law Enforcement against Criminals. 

The fact -gathering agencies upon whose skill, integrity and diligence the At- 
torney General and the several District Attorneys must in most cases predicate 
action, are the local, metropolitan and State police and detective forces. Unless 
a lawbreaker or felon is apprehended and the net of evidence woven about him, 
the Attorney General and the District Attornej^s are powerless. It is the primary 
duty of police agencies to apprehend the criminal and gather the facts of his con- 
nection with the commission of the crime charged, in all instances. Then the 
prosecuting agencies and the courts can fulfill their full duty in the interests of 
justice, and consequently in the public interest. The great majority of our people 
are in word, deed and conduct law-abiding. The bandit, the gangster, the 
racketeer, and other more or less organized violators of law, are, fortunately^ 
but a relatively small minority. But they are a pressing danger. They must 



P.D. 12. 7 

be fought, and fought with means and methods of crime detection at least equal 
in abilitj^ and efficiency' to their own. We cannot permit the poison of the law- 
breaking activities of these parasites on society, or the corruption of their anti- 
social and calloused greed for money and underworld power to challenge and 
impair the integrity of our institutions and the morality of our people. Geo- 
graphical or other barriers and obstacles, which needlessly interfere with public 
officers in answering the challenge of criminals, should be removed. While it is 
recognized that certain fundamental rights woven into our organic law as safe- 
guards of liberty must not be disturbed, yet common sense dictates that society 
must by every reasonable means outwit and outgeneral the criminal and bring 
him to swift and certain justice. Modern inventions have given him a mobility 
and a deadly danger not only to the property, but to the life of the citizen. The 
condition thus created must be met by sensible and practical means. 

There was passed by the Seventy-third Congress of the United States, in June, 
1934, an act "granting the consent of Congress to any two or more States to 
enter into agreements or compacts for co-operative effort and mutual assistance 
in the prevention of crime and for other purposes" (U. S. Stat, at L. pt. 1st, 
c. 406). I have given the most careful study to this timely and progressive con- 
gressional sanction with reference to the objects sought to be attained in law 
enforcement. The possibility it unfolds for crime detection, prevention and 
punishment is highly important for the well-being of the Commonwealth, the 
great mass of whose people desire it to be the abiding place of right living, right 
thinking, good order and decency. I am convinced that this congressional act 
should be translated into action, and recommend that suitable legislation be 
adopted giving it force and effect. It is hardly conceivable that adjoining sister 
States would lag behind our Commonwealth in this matter of crime detection, 
apprehension and law enforcement. 

Licensing the Carrying of Firearms. 

There should be established a central authority, under some department of 
the Commonwealth, wliich central authority should have the exclusive function 
of finally approving all applications for licenses to carrj^ pistols or revolvers. 
There are now by far too manj^ agencies throughout the Commonwealth em- 
powered by law with full authority to grant such licenses. It would appear that 
there are more than 2,000 persons possessing this authority. This system has 
resulted in abuse, wliich is the natural result of widely scattered authority. It 
is a system which challenges the peace and good order of the Commonwealth, 
and tends to smooth and make easy the path of the gumnan and the gangster. 
I strongly urge legislation making pro\'ision for a central authorit}^ for the final 
approval of all applications to carry pistols and revolvers, and making the further 
provision that all existing licenses heretofore granted expire by operation of law 
on a day certain, wliich said day certain shall be uniform throughout the Com- 
monwealth. This is a reform which I have long advocated. It is encouraging to 
note that in principle it has been endorsed by the Commissioner of Public Safety, 
the Police Commissioner of Boston, and other persons in touch with the problem 
of crime suppression. 



8 P.D. 12. 

Defaults in Criminal Cases. 

Unnecessary delay and obstruction of justice occur more or less frequently 
where defendants charged by indictment or complaint with criminal f)ffences 
fail to appear, and default when their cases are called in court for trial or other 
disposition. 

The mo\'ing purpose in such failures to appear in court may be to avoid ha\'ing 
the case tried before a particular judge, to gain delay for some other purpose, or 
to elude justice entirely. 

I am convinced that this is a situation which can be met by legislation making 
it a felony to knowingly and intentionally default in court where the crime charged 
is a felony, and making it a misdemeanor to knowingly and intentionallj^ default 
in court where the offence charged is a misdemeanor. 

In making this recommendation I do so with the approval of the several Dis- 
trict Attorneys of the Commonwealth. 

Criminal Prosecutions. 

During the year there were instituted by the Department of the Attorney 
General several criminal prosecutions of major importance, several of which 
have been concluded in the courts. Soon after coming into office, there was called 
to my attention the matter of the extensive fraudulent financial operations of 
Dill & Co., Inc., and the Investors Trading Corporation, each company affiliated 
with the other. 

The ramifications of this gigantic fraud and the criminal acts connected there- 
with extended into practically every county in the Commonwealth. In this 
investigation it was discovered that a sworn statement of holdings in the port- 
folio of the Investors Trading Corporation had been filed at various periods 
with the Securities Division of the Department of PubHc Utilities. The alleged 
holdings of the Investors Trading Corporation, as disclosed by this sworn state- 
ment, approximated half a milUon dollars. Shares of stock in the Investors 
Trading Corporation, predicated upon the alleged holdings of sound securities, 
had been sold in large quantities to persons throughout the Commonwealth by 
Dill & Co., Inc. The purchasers of stock in the Investors Trading Corporation 
were, for the most part, elderly persons, many of them women, who could ill 
afford to lose the money and other properties invested in this fraud. 

It was found upon investigation that Dill & Co., Inc., and its president had 
been made the custodians of the properties and security holdings of the Investors 
Trading Corporation, and that the statement of portfolio holdings of Investors 
Trading Corporation filed with the Securities Division was utterly false and 
fraudulent. 

This fact should have been disclosed upon the slightest diligent inquiry by re- 
sponsible public officers. Many of the purchasers of stock in the Investors Trad- 
ing Corporation relied upon the assurance contained in the statement filed with 
the Securities Division that the company into which they were buying possessed 
approximately half a million dollars' worth of assets, when in fact it possessed 
practically nothing, all assets, so far as they ever existed, having been dissipated 
by Dill & Co., Inc., the promoting company, through its president. 

Under the direction of the Attorney General the president of Dill & Co., Inc., 
was promptly indicted by the Grand Jury of Suffolk County on a number of crim- 



P.D. 12. 9 

inal charges. To several indictments he pleaded guilty, and upon recommendation 
of the Attorney General the court sentenced him to a substantial term in State 
Prison. 

The case just recited characterizes the type of fraud which has been perpetrated 
with more or less variation upon credulous persons, many of them aged and in- 
firm, seeking to better their incomes, who parted, not only with their money but 
with securities of established standing and credit and dividend-paying power, 
and received nothing in return therefor but pieces of paper representing worthless 
stock of no value whatsoever. 

The fact that the Attorney General in the past year has undertaken several 
criminal prosecutions is in no sense a reflection upon any District Attorney. It 
is due in the main to the State-wide character of the criminal acts concerned in 
certain cases, and the desire of the Attorney General to bring about an effective 
co-ordination of all agencies in the Commonwealth for the prevention, as well as 
the prosecution, of crime. 

Fraudulent Business Practices. 

Several conclusions of principal importance have been reached after a year of 
intensive study relative to fraudulent business practices, and more particularly 
fraudulent business practices in connection with the promotion and sale of stocks, 
bonds and other securities. These several conclusions are summarized as follows, 
and are embodied in this report as recommendations: 

1. The Securities Division of the Department of Public Utilities should be 
transferred to the Department of Banking and Insurance, and made a di\Tision 
of that Department. 

2. The Attorney General sliould be given authority to institute injunctive pro- 
ceedings in the Supreme Judicial Court or in the Superior Court, at his election, 
whenever he believes and finds from evidence satisfactory to him that any per- 
son, partnership, corporation, company, trust or association has engaged in, 
is engaged in, or is about to engage in, fraudulent practices in connection with 
the promotion, sale or distribution of stocks, bonds or other securities, including 
oil and mineral deeds or leases, and any interest therein, with the end in view of 
enjoining such person, partnership, corporation, company, trust or association 
from continuing such fraudulent practices or engaging therein, or doing any 
act or acts in furtherance thereof, and with the further end in view of enjoining 
permanently the sale or offering for sale to the public within the Commonwealth, 
as principal, broker or agent, or otherwise, any securities issued or to be issued 
which are concerned in said fraudulent practices. "Fraud" and ''fraudulent 
practices", as contemplated in this recommendation, include those defined in 
G. L. (Ter. Ed.), c. IIOA, as amended by St. 1932, c. 290, § 2 (g). 

3. It should be made a misdemeanor for any broker or salesman to make a 
representation, either orally or in writing, directly or indirectly, to a prospective 
customer, for the purpose of inducing the sale of any securitj', that the securitj^ 
has been qualified under the Sale of Securities Act of the Commonwealth, with- 
out disclosing to the customer at the time of making such representations that 
the qualification of the security does not e\'idence its economic value. 

4. The Sale of Securities Act of the Commonwealth (G. L. [Ter. Ed.], c. llOA, 
as amended by St. 1932, c. 290) should be further amended so as to define pre- 



10 P.D. 12. 

cisely as securities coming within the scope of the provisions of the act, oil and 
mineral deeds and leases, and any interest therein or royalty therefrom. 

5. To effectivel}^ administer the provisions of the legislation recommended as 
to injunctive proceedings, and to more effectively conduct inquiries in relation 
to violations of the Sale of Securities Act of the Commonwealth, the Attorney 
General should be empowered to summons before him, or before an Assistant 
Attorney General deputized by him in writing, witnesses and books, papers, 
documents, writings and memoranda for the taking of testimony and for exam- 
ination and inquiry, under the pains and penalties of perjury. 

6. For the further prevention of fraud, where a statement of portfolio holdings 
of securities is filed with the Securities Division, it shall be the duty of the director 
of that Division to ascertain the existence of such securities by physical inspection 
made by some officer responsible to him, who shall file in the records of the Divi- 
sion a sworn memorandum in writing in relation to his findings. 

Delays in the Administration of Justice. 

Delaj^s in the administration of justice necessarily and inevitablj' breed a dis- 
respect for justice and for law. This applies with equal force to the civil as well 
as to the criminal branch of the law. When a case is heard on the facts and merits, 
or argued on points of law, it is intolerable that months and sometimes years 
elapse before the rendering of decision or opinion. There is no valid excuse for 
a continuance of this condition; yet it is regretfully impressive that the condition 
exists. Its existence is particularly true with reference to certain district court 
judges. A remedy for this evil should be adopted. It may be noted that a for- 
ward step in the prompt administration of justice was taken in this Common- 
wealth by the passage of the so-called Fielding Act (St. 1934, c. 387). This act 
gives district courts exclusive original jurisdiction of actions of tort arising out of 
the operation of motor vehicles. In a large percentage of the district courts of 
the Commonwealth this act has operated with commendable and encouraging 
results. It has tended in no small measure toward a speedier administration of 
justice. But the increased and continued successful operation of this valuable 
piece of legislation is dependent upon the quality and character, as well as upon 
the fairness, impartiality and industrj^, of the district court judges assigned to 
hear the cases, and the promptness with which they render decisions and opinions. 

Delays in the rendering of decisions and opinions in all classes of cases have 
crystallized into a long-continued, regrettable practice, and to such an extent as 
to constitute a great public abuse. I therefore recommend the enactment of a law 
making it obligatory upon the clerk of each of the seventy or more district courts 
throughout the Commonwealth to cause to be posted in a public place, on a bul- 
letin board in the office of each clerk of court, at stated periods, — say at least 
once a month, — a list of cases held by judges in their respective courts for 
decision or opinion. All cases where decision has not been rendered should be so 
posted by the clerks where thirty days have elapsed from final hearing, giving the 
date when the case was taken under advisement by the court. This notice should 
also be posted in the judges' lobby and in the public corridor of each district court, 
giving the name of each case delayed for decision or opinion in that court beyond 
a period of thirty days, together with the name of the judge having the same under 
advisement. 



P.D. 12. 11 

I believe that such a mandatory practice would, through the sanction of pro- 
fessional and public opinion, operate as an instrument to reform the condition to 
which I allude. However, should it appear after a fair trial that results do not 
follow, I would be willing to suggest a more drastic remedy. 



Amendment of Laws relating to Savings Banks. 

The laws relating to savings banks should be amended by providing that no 
executive or administrative officer, or member of the board of investment of 
such banks, should act as counsel therefor. 

The mutual savings banks of Massachusetts are quasi-public institutions. 
They should not be used as instruments for unconscionable private gain. When 
a prospective mortgagor applies for a mortgage, the bank counsel who is to 
charge the mortgagor for legal services rendered should not have within his 
power as an officer of the bank a voice in the granting or the denial of the mort- 
gage. The possession of such power has too often served as a deterrent to protest 
at the amount charged allegedly for legal services. There have been called to 
the attention of the Department instances of fees so charged, which lend color 
to a conclusion that the fees in fact constituted inducements to the officer of 
the bank. 

This is especially true in the instance of mortgages for a large amount, where 
the size of the loan serves as a flimsy defense, but because it does serve as a 
defense it makes more difficult the plight of the small home owner who seeks a 
renewal of a mortgage only to find that available funds are used to finance mort- 
gages which are a source of profit to the officer of the institution. 

Boston Port Authority. 

The Department of the Attorney General participated in twelve cases and 
proceedings before various tribunals on matters concerning ocean and rail freight 
rates, storage charges, charges for handling, and other accessorial services affect- 
ing the movement of water-borne traffic through the Port of Boston and other 
ports of the Commonwealth. 

The Port of Boston since 1920 has been laboring under a handicap, in that 
ocean rates are now equalized to all United States North Atlantic ports, and the 
rail differentials on traffic moving to and from interior points in favor of Phila- 
delphia, Baltimore and Norfolk, which were originally intended to offset the 
higher ocean rates to these ports, now result in higher through ocean and rail 
charges by way of the Port of Boston. This and some other discriminatory prac- 
tices indulged in by the rail carriers serving New York, Philadelphia, Baltimore 
and Norfolk have been assailed during the past year by the Department in 
conjunction with the Boston Port Authority. 

The Department of the Attorney General, co-operating with practically every 
port of the United States, with the exception of New Orleans, appeared in con- 
nection with H. R. Bill 300G, 74th Congress, and S. Bill 874, 74th Congress, 
which were designed to correct the situation existing, whereby "a port" was 
not "a locality", as a result of the decision of the United States Supreme Court. 
This legislation was enacted into law, thereby giving ports an opportunity for 
protection from undue preference and prejudice. 



12 P.D. 12. 

The prosperity of this Commonwealth is dependent upon the prosperity of 
its individual cities and towns. The Port of Boston is the concern of the Com- 
monwealth of Massachusetts. The present decrease from one and one quarter 
milhon tons of export trade during the ten-year period prior to the war to less 
than one-quarter of a million tons in recent years is a matter of grave concern 
to the entire State. 

"While the Port Authority of Boston is a State board, its only meagre means 
of support is the city of Boston. I believe that the worth-while work which it is 
doing should be assisted financially and the scope of its activities enlarged by the 
Commonwealth. I therefore recommend a comprehensive study by a recess 
commission of the functioning and problems of the Boston Port Authority. The 
commission might also consider the advisability of transferring the operation of 
the waterfront terminals of the Commonwealth to the Boston Port Authority. 
I am persuaded that such a recess commission would recommend legislation 
which would facilitate the protection and development of the commerce of the 
Port of Boston and other ports of the Commonwealth. 

The Division of Collections. 

Shortly after my induction into office I established within the Department 
a separate division to be known as the Division of Collections. 

It was my belief that by the establishment of this Division, systematic effort 
would be made for the collection of money owed the Commonwealth, chiefly for 
the board of patients in the various institutions of the Commonwealth. The 
establishment of such a division necessarily demanded an increase in the budget- 
ary requirements of the Department. In making the request for such an increase, 
I stated to the committee on ways and means of your Honorable Body that it 
was my opinion that if such provision were made, at least twice the amount col- 
lected in the previous fiscal year could be collected, due to the establishment of 
such a division. 

I am pleased to report that during the fiscal year 1935 this Division collected 
$162,272.24. This sum is nearly four times the amount collected during the 
previous year, namely, $46,822.33. This does not take into consideration the 
sum of $11,092.22 which has been collected as a result of the activity of this 
Division, but which was paid directly to the several departments of the Com- 
monwealth. 

Land Damage Petitions. 

It seems to have been the policy of this Department in recent years, in cases 
growing out of petitions for the assessment of damages for land taken by the Com- 
monwealth, to await action by the petitioners for the trial of those cases. 

This year all petitions for the assessment of damages for land taken, unless 
there has been some extraordinary reason for delay, have been marked by the 
Department for trial, and this will result in either the trial or disposition of cases 
which have for a long time been drawing 4 per cent interest against the Common- 
wealth upon the value of the land taken. 

I doubt the wisdom of a policy which allows cases of this character to drag, as 
interest is constantly running against the Commonwealth. Furthermore, the 
public improvement usually involved in the taking of land by the Commonwealth 



P.D. 12. 13 

results in the improvement of the neighborhood, and juries, upon a view taken 
several years later, are apt to get a wrong impression of the value of the land at 
the time of the taking. 

Representation of the Commonwealth by Other than the Department 
of the Attorney General. 

It has been mj' contention that the office of the Attorney General should repre- 
sent the Commonwealth in all cases involving litigation. ' Without any reflection 
upon the professional capacity of those involved, I have indicated that the serv- 
ices of certain counsel are no longer necessary, and that the Department of the 
Attorney General would assume the prosecution of several cases. 

For instance, a Special Assistant Attorney General was appointed to represent 
the Commonwealth in Federal court proceedings arising out of the so-called 
Millen-Faber case. This work was successfully assumed by the Department. 
In the Davis tax case the estate of the late William Flaherty has a claim for a 
substantial sum for ser\dces rendered in obtaining a judgment, upon which 
nothing has as yet been collected, and the collection of the judgment was in the 
hands of other outside counsel, who has been dismissed. The Metropolitan Dis- 
trict Water Supply Commission has expended in recent years more than $50,000 
for the retention of outside counsel, whose work has been assumed by this De- 
partment. In the so-called Billboard Cases, a Special Assistant Attorney General 
was receiAing a salary of $3,000 a j'ear. This relationship was discontinued, and 
the work has been assumed by this Department. There are several other instances 
of like nature, in each of which this Department now represents the Common- 
wealth. 

The adoption of the policy to which I have referred has necessarily increased 
the work of the Department. The full-time services of two Assistant Attorneys 
General are needed to represent the Metropolitan District Water Supply Com- 
mission in the trial of petitions arising out of the taking of land incident to the 
construction of the new Metropolitan District Water Supply reservoir in Western 
Massachusetts. 

Charitable Bequests and Trusts. 

Under the law the Attorney General is the protector of the rights of the pubUc 
in relation to charitable bequests and trusts created by will. 

At the outset of my incumbency, I was surprised to learn that there had never 
been a complete and accurate check upon the disposition of the income of chari- 
table trusts and charitable bequests. Some trustees have made yearly reports 
to the Department of the Attorney General; others have made reports to the 
Probate Courts having original jurisdiction of the estates; and a surprisingly 
large number have made reports to neither. 

The extent of the failure to make reports is well illustrated by citing three 
matters which have recently come to the attention of the Department. The 
first had to do with a fund estabUshed to conduct a home for aged persons who 
were resident in a certain city. This fund, which consisted of real estate, was 
established nineteen years ago, and the first report submitted by the trustees 
was within the past few months, as a result of the investigation by this Depart- 
ment. The second case had to do with a trust created for the purpose of expend- 



14 P.D. 12. 

ing the money to purchase fuel for needy persons. The trustee died, and the 
executor of the trustee's estate desired to have the estate released from liability 
under the bond filed by the trustee with the Probate Court at the time of his 
appointment. Upon investigation it was found that for a period of more than 
twelve years the trustee had never made a report of income received and dis- 
bursements made under the trust. The third case concerned a trust created in 
1927, which involved several hundred thousand dollars, its purpose being to 
create a recreation center. No steps had been taken for the appointment of a 
trustee, nor had there been anything constructive done towards carrying out the 
purposes of the trust created under the wiU. The Department has had new 
trustees appointed and the trust fund turned over to them. The matter is now 
being followed out in accordance with the bequest as set forth in the will. 

The second reason for the extensive examination and survey of public chari- 
table bequests and trusts which this Department is now making is to ascertain 
the existence of any income from a trust or any fund which is not being used, 
and which could be used, to alleviate somewhat the tax burden of the cities and 
towns in relation to the welfare expenses of such cities and towns. At the present 
time it is unknown whether or not such sums exist, but it is expected that upon 
the completion of the survey sums will be found which can be used for this pur- 
pose and which today are lying dormant in banks and are not being put to the 
use which was the express wish of the benefactor. Owing to the fact that there 
is a large amount of detail work involved in setting up the system needed for a 
constant check upon these charitable trusts and bequests, and that no such 
survey has been made before this time, the completion of the work will take 
considerable time and money, but it is expected that the results obtained \\ill 
adequately compensate the time and effort involved. 

To the end that this Department might keep in touch with the management 
of public charitable trusts, I recommend that legislation be enacted whereby 
notice shall be given by the court to all named beneficiaries of public charitable 
bequests, as set forth in any will filed in court, and further, that similar notice be 
given to the Attorney General of the Commonwealth. 

Unauthorized Practice of Law. 

The steadily increasing number of lay agencies practicing law has been the 
concern of the General Court and of the Supreme Judicial Court of the Com- 
monwealth. By chapter 346 of the Acts of 1935, the Legislature provided that, 
upon the petition of the Attorney General, acts constituting unauthorized prac- 
tice of law might be brought to the attention of the Supreme Judicial Court or 
the Superior Court, which have concurrent jurisdiction in equity to restrain such 
conduct. The Supreme Judicial Court, on January 30, 1935, rendered an opinion 
to the Honorable Senate, wherein was clearly set forth the right of the judicial 
department of government to deal with persons other than those admitted to 
the Bar who i)ractice law. 

The combination of the legislative enactment and the Opinion of the Justices 
of the Supreme Judicial Court constituted a mandate to this Department to 
institute a comprehensive inquiry and investigation into the affairs of every 
agency so operating in violation of law within the Commonwealth. 



P.D. 12. 15 

Legal Aid Societies. 

It should be noted that the Supreme Judicial Court stated "the gratuitous 
furnishing of legal aid to the poor and unfortunate without means in the pursuit 
of any cix-il remedj^, as a matter of charity, . . . does not constitute the practice 
of law." See Opinion of the Jxistices, January 30, 1935. 

It clearly follows that legal aid societies, coming as the}' do under the foregoing 
class, may continue as heretofore, and that no legislation is necessary to give 
them such right. 

Collection and Adjustment Agencies. 

An investigation into the affairs of everj^ collection agency operating in the 
Commonwealth revealed that unscrupulous collection agencies, by their improper 
practices, have been collecting more than a million dollars a year in false charges, 
fictitious costs, and other expenses, which have been saddled on the backs of 
debtors, chiefly among low-salaried people. 

In some instances constables have been working in co-operation with these 
collection agencies. In other cases they simply gave a badge to an employee, 
with which to hound people and scare them into pacing not onlj' their legitimate 
bills but exorbitant fees. Letters were sent to debtors outlining the dire catas- 
trophe which would befall them through the operation of the judicial system 
if their demands were not met. Communications wherein the most exaggerated 
and distorted ^'iews, statements and descriptions were made of judicial procedure 
and process, and of their operation and effect upon a distressed and harassed 
debtor, were constantly sent. Tlireats of attachment of wages, — likely to lead 
to loss of employment, — seizure of property and the like, were all set forth with 
a detailed description of their merciless effectiveness. Forms simulating court 
process were both used and sold in blocks to those firms desiring an effective 
method of collection. Instruments and printed forms purporting to emanate 
from the court, bearing a facsimile of State and court seals, were constantly used 
to mislead the debtors into a belief that they were from the court, as a warning 
of the consequences of their failure to heed the demands of these operators. 
Debts originally for a small smn would ultimately result in the execution of a 
mortgage on furniture and other property of the debtors, which otherwise was 
exempt from attachment or levy, in a sum increased by 100 per cent to 1,000 
per cent. Many agencies would institute outlawed and fraudulent actions at 
law, well knowing that by their continued, steady and regular practices they 
would force the debtors to pay even an unjust bill rather than face the conse- 
quences of court action or possible loss of emploj-ment. Hundreds of mortgages 
and assignments of life policies, salaries and the like were secured by false and 
fraudulent representations that the debtors were omy signing an agreement to 
pay their just debt. 

Groups of collection agencies have combined against small business men, 
threatening bankruptcy or coercing them into making an assignment for the 
benefit of creditors. The effectiveness of collection agencies comes from their 
brutal and " hard-boiled " tactics, using our judicial system to justify their ex- 
istence and practices. The latest method of extortion is for collection agencies 
to tlireaten and in fact to advertise "accounts for sale" in newspapers and 
circulars, and thus hold an unfortunate debtor up to shame and ridicule among 
his friends and neighbors, regardless of whether or not the debt is actually due. 



16 P.D. 12. 

These agencies not only victimized the debtors, but have withheld moneys actu- 
ally collected as trustee for their customers or creditors, and have refused to pay 
over, under one pretense or another, their usual excuse being that the account 
was "withdrawn"; thus they are entitled to be paid as if actually collected, and, 
in some cases, at a still higher rate. 

Indictment and prosecution may follow in some cases, but obviously this could 
not remedy the existing conditions. The Department therefore, with a view of 
eliminating a manifestly evil condition, investigated 282 agencies, resulting in the 
Department filing with the Supreme Judicial Court — 

163 informations invoking a remedy to protect the courts and the public; 
99 companies are no longer in business (foreign corporations having no place 

of business in Massachusetts or bond filed with the State Treasurer, 

companies not occasioning legal action); 
20 companies pending in the Department for further investigation; making 

a total of 

282 

Of the 163 informations filed with the Supreme Judicial Court — 

96 were enjoined from conducting collection agencies; 

3 have gone out of business after informations were filed and before trial; 

1 was enjoined from conducting a collection agency, and appealed to the 
full court; 

1 was dismissed, as the respondent was deceased; 

1 is awaiting decision before a master; 
1 1 are assigned for trial before masters ; 
50 are pending in the Supreme Judicial Court, awaiting trial or assignment. 

Six large foreign collection agencies which filed bonds with the State Treasurer 
to operate collection agencies have had their bonds ordered cancelled by our 
Department. 

It should not be assumed that all collection agencies engaged in the reprehen- 
sible practices which I have outlined above. There were some which conducted 
their affairs in a businesslike and humane manner. However, because their acti\a- 
ties constituted the unauthorized practice of law they are subject to restraint by 
the judicial department of government. 

I recommend that legislation be enacted to prevent the advertising of "accounts 
for sale" by newspapers and circulars, wherein the names and addresses of the 
creditors and debtors and the amounts and nature of action are listed. 

Automobile and Protective Associations. 

The Department's attention has been directed to some thirty-four so-called 
automobile and protective associations, operating in this Commonwealth, which 
charge their members yearly dues for various privileges. In soliciting their mem- 
bership these associations offer to furnish the members with certain services of 
their "legal department" in connection with the ownership and operation of 
automobiles. They engage in other general activities, such as legislative effort to 
improve the traffic and road conditions, the marking of highways, the furnishing 



P.D. 12. 17 

of information as to roads and road conditions, and the like. These "legal de- 
partments" consist of various attorneys who are engaged in general practice and 
who devote to this service only such of their time as is necessary. They are in 
most cases paid per case. When matters in which they are consulted by members 
result in suit or other legal proceedings they are also entitled to charge such 
members their usual and customary fees. 

With few exceptions these so-called associations are nothing more than instru- 
mentalities through which certain lawyers have been able to secure business, 
contrary to the rules of the court and the canons of legal ethics. In some cases 
they give a small premium policy, together with certain emblems, and publish a 
periodical, which seems to be their method of constant solicitation to procure 
professional employment for their lawyers. These associations, with practically 
no exception, are nothing more than cloaks for the indirect solicitation of law mat- 
ters, constituting an imposition and fraud upon the court, in that they solicit 
claims which are law matters and which sohcitation the lawyers would be pro- 
hibited from doing by the canons of legal ethics. 

During the j'^ear there was instituted an inquiry into, and an investigation of, 
the affairs of every automobile and protective association operating in this Com- 
monwealth. The Department, with a view to eliminating these unlawful condi- 
tions, investigated some thirty-four cases, from which group — 

18 informations invoking a remedy to protect the courts and the public were 

filed with the Supreme Judicial Court; 
12 associations are no longer in business — companies not occasioning action; 
4 are pending in our Department under further investigation; making a total 

of 

34 

Of the 18 cases in which informations were filed wath the Supreme Judicial 
Court — 

6 associations have been enjoined from conducting a "legal department" in 

connection with their operation; 
1 case was tried before a single justice of the Supreme Judicial Court and 

reported to the full court; 
1 was tried before a single justice and is awaiting decision; and 
10 are pending in the Supreme Judicial Court awaiting trial or assignment. 

Small Loan Agencies. 

The purpose of G. L. (Ter. Ed.), c. 140, § 96, is to protect a borrower from 
paying an excessive rate of interest on loans of S300 or less. Small loan agencies 
advertise to hold themselves out as bonded, Hcensed and under the supervision 
of the Dopartment of Banking and Insurance. 

When the wage earner, driven by lack of the necessaries of life, or in a similar 
genuine emergency, must borrow money, he goes to a licensed small loan agency, 
believing it entirely under the regulatory supervision of the Commonwealth. 
The cu-cumstances under which the loan is needed are such that interest charges 



18 P.D. 12. 

become a secondary consideration, as compared to the emergenc}^ requiring such 
a loan. With a view to defeat and evade the purpose of the so-called Small Loan 
Statute, a loan is made for $301, thereby enabling the operators of the licensed 
small loan agency to charge any rate of interest. The borrower does not know 
that where a loan of $301 or more is made, the agency is no longer under the 
regulatory supervision of the Department of Banking and Insurance, and maj^ 
charge any rate of interest, depending on what the traffic will bear. 

These practices have caused a great amount of suffering and hardship to many 
Unfortunates, whose misfortune is their need for ready cash, and have thus sup- 
plied the opportunity for others to obtain usurious interest charges. The De- 
partment investigated eight cases involving these practices, where partial relief 
was afforded the borrowers. 

I recommend that legislation be enacted — 

1. To prevent a small loan agency from engaging in any activity other than the 
so-called small loans business, and from making loans other than in accordance 
with G. L. (Ter. Ed.), c. 140, §§ 96-111, inclusive. 

2. To raise the amount of $300 to $1,000, as defined in G. L. (Ter. Ed.), c. 140, 
§§96 and 110, as the business of making small loans. 

3. To provide for legal services for the victims of unlawful practices by loan 
agencies, and that payment for such services be made bj^ the loan agency, in 
accordance with a method similar to the provisions of G. L. (Ter. Ed.), c. 140, 
§97. 

Banks and Trust Companies. 

The Department has concerned itself with the alleged unauthorized practice 
of law by the banks and the trust companies of the Commonwealth. 

I called a conference of the representatives of the Massachusetts Bar Asso- 
ciation, The Law Society of Massachusetts, and the several County Bar Associa- 
tions. As a result of this conference, a subcommittee of five was appointed to 
formulate a program of procedure to deal with this particular aspect of the prob- 
lem of unauthorized practice of law. It will be generally agreed that hasty and 
iU-conceived action against financial institutions might lead to a loss of confidence 
in them on the part of the public, which would prove harmful to the financial 
structure of the Commonwealth. It therefore is a prudent course to make ade- 
quate preparation for any effort along this line. 

The trust companies of the Commonwealth hold in trust more than one biUion 
dollars of assets. That thej^ have a legal right so to do is clear. It is also clear that 
in dealing with these assets they have no right to perform legal services or to render 
legal advice. The problem presents a difficulty, however, in that in this field of 
activity an exact definition of what is the practice of law cannot be drawn which 
can be rigidlj^ applied to all cases. There is a hazy line of demarcation which sepa- 
rates the practice of law from other activities which are legitimate business func- 
tions to be exercised by a bank through its trust officers. It is the hope of the 
Department that an agreement may be reached which will solve these difficulties 
of definition. However, the law in this regard is in its formative stage. Judicial 
effort should be made to obtain precise definitions. The public interest will be 
clearly served by confining the banker to banking activities and leaving the 
practice of the law to duly admitted members of the Bar. 



P.D. 12. 19 

Lowell Gas Light Company Case. 

The Lowell Gas Light Company was for nearly eighty-two years a very suc- 
cessful and prosperous organization. It was created by Massachusetts men and 
financed by Massachusetts capital. It was conducted as a separate independent 
entity, willing to rise or fall on its own merits. 

In 1929 a group of outside financiers bought the Lowell Gas Light Company 
from its ^Massachusetts owners. They organized the American Commonwealth 
Power Associates, a Massachusetts trust, because the laws of the Commonwealth 
require that Massachusetts public utilities shall be held only by Massachusetts 
institutions. 

In the background of this American Commonwealth Power Associates was the 
usual holding company, known as the American Commonwealth Power Corpora- 
tion. The issuance of the $1,500,000 notes in the name of the Lowell company 
was presumably for the purpose of making extensions to the plant of the Lowell 
company. The money, however, went to the holding company and the parent 
company for the purpose of buying, among other things, new power plants in 
foreign States. The parent company went into the hands of a receiver, and the 
Lowell company was compelled to pay the notes. 

In ^-iew of the fact that the persons adversely affected by the issuance of these 
notes were the minority stockholders of the Lowell Gas Light Company, our 
office conducted an investigation, resulting in full restitution to both the minority 
stockholders and the company itself. 

Official Opinions. 

The Department has rendered one hundred and thirty-seven written opinions. 

An Appreciation. 

In conclusion, I desire to express my sincere appreciation of the loyalty, indus- 
try and ability of those who shared with me the responsibilities of the chief law 
office of the Commonwealth. The several Assistant Attorneys General, the office 
personnel, and all the co-operating agencies have manifested commendable 
willingness to serve to the best of their talents the people of Massachusetts. 



Respectfully submitted, 



PAUL A. DEVER, 

Attorney General. 



20 P.D. 12. 

Details of Capital Cases. 

1. Disposition of indictments pending Nov. 30, 1934: 

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; May 8, 1935, retracted 
former plea and pleaded guilty to manslaughter, which was accepted; thereupon 
sentenced to the house of correction for one year. 

Northwestern District (in charge of District Attorney David H. Keedy). 

Charles Macules, alias. 

Indicted in Hampshire County, February, 1929, for the murder of George Chepules, 
at Amherst, on Dec. 20, 1928; arraigned Feb. 25, 1929, and pleaded not guilty; 
June 19, 1930, committed to Bridgewater State Hospital; May 25, 1935, returned 
as recovered; Aug. 22, 1935, taken to Norfolk Prison Colony because of illness, and 
died there Sept. 12, 1935. 

Southeastern District (in charge of District Attorney Edmund R. Dewing). 

Murton Millen, alias, Irving Millen and Abraham Faber, alias. 

Indicted in Norfolk County, February, 1934, for the murder of Forbes A. McLeod, 
at Needham, on Feb. 2, 1934; arraigned March 10, 1934, and each pleaded not 
guilty; trial April 16, 1934, to June 9, 1934; verdict of guilty of murder in the first 
degree as to each; appeal as to each dismissed by the Supreme Judicial Court Feb. 
14, 1935 (Adv. Sh. [1935] 475) ; second appeal of Murton Millen and Ir-ving Millen 
dismissed by the Supreme Judicial Court April 18, 1935 (Adv. Sh. [1935] 1087); 
petition of Murton Millen and Irving Millen for writ of certiorari to the Circuit 
Court of Appeals for the First Circuit, and motion for leave to proceed further in 
forma paxiperis denied by the Supreme Court of the United States {Millen v. Capen, 
Sheriff, 292 U. S. 639) ; petition of Murton Millen for writ of certiorari to the United 
States Circuit Court of Appeals for the First Circuit denied by the Supreme Court 
of the United States (55 S. Ct. 650) ; petition ot Irving Millen for wTit of certiorari 
to the United States Circuit Court of Appeals for the First Circuit denied by the 
Supreme Court of the United States (55 S. Ct. 650) ; petition of Murton Millen and 
Irving Millen for writ of certiorari to the Superior Court in and for the County of 
Norfolk, Commonwealth of Massachusetts, denied by the Supreme Court of the 
United States (55 S. Ct. 924) ; petition of Abraham Faber for writ of certiorari to 
the Superior Court in and for the County of Norfolk, Commonwealth of Massa- 
chusetts, denied by the Supreme Court of the United States (55 S. Ct. 924) ; during 
the pendency of proceedings respites were granted Murton Millen, Irving Millen 
and Abraham Faber by the Governor and Council on April 24, 1935, for a period of 
six days from April 28, 1935, to and including May 4, 1935, and on May 1, 1935, 
from May 4, 1935, to and including June 5, 1935; the sentence of death pronounced 
by the Superior Court for Norfolk County as to Murton Millen, Irving Millen and 
Abraham Faber on Feb. 26, 1935, was carried into e.xecution on June 7, 1935. 

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

Foley). 
John J. Moore. 

Indicted April, 1933, for the murder of Charles Solomon, on Jan. 24, 1933; arraigned 
Nov. 14, 1934, and pleaded not guilty; trial May, 1935; verdict of not guilty. 



P.D. 12. 21 

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; second 
trial February, 1935; verdict of not guilty. 

Michael J. Walsh. 

Indicted October, 1931, for the murder of Honora A. Walsh, on Sept. 18, 1931; ar- 
raigned Oct. 23, 1931, and pleaded not guilty; Nov. 19, 1931, adjudged insane and 
committed to Bridgevvater State Hospital; Jan. 17, 1935, restored to sanity and 
ordered to trial; April 15, 1935, retracted former plea and pleaded guilty to man- 
slaughter, which was accepted; thereupon sentenced to State Prison for not more 
than twenty years and not less than fifteen years. 

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

Alexander Kaminski, alias. 

Indicted in Hampden County, December, 1933, for the murder of Merritt W. Hay- 
den, at Springfield, on Oct. 22, 1933; arraigned Jan. 5, 1934, and pleaded not guilty; 
trial February, 1934; verdict of guilty of murder in the first degree; thereupon 
sentenced to death by electrocution within the week beginning Jan. 20, 1935; Jan. 
16, 1935, respite to and including Feb. 16, 1935; Feb. 4, 1935, motion for new trial 
denied; sentence carried out Feb. 19, 1935. 

Armand Santaniello. 

Indicted in Hampden County, September, 1934, for the murder of Lena Resigne, at 
Springfield, on Aug. 12, 1934; arraigned Dec. 27, 1934, and pleaded not guilty; 
trial March, 1935; verdict of guilty of manslaughter; thereupon sentenced to State 
Prison for not more than ten years and not less than six years. 

2. Indictments found and dispositions since Nov. 30, 1934: 

Middle District (Worcester County cases: in charge of District Attorney Owen A. 

Hoban) . 
Martin Dudeck. 

Indicted August, 1935, for the murder of Sophie Dudeck, at Southbridge, on July 11, 
1935; arraigned Sept. 6, 1935, and pleaded not guilty; trial September, 1935; 
verdict of not guilty by reason of insanity; thereupon committed to Bridgewater 
State Hospital for life. 

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

L. Bishop). 
John Evangelista. 

Indicted April, 1935, for the murder of Francis A. Veinot, at Woburn, on March 30, 
1935; arraigned April 5, 1935, and pleaded not guilty; May 28, 1935, retracted 
former plea and pleaded guilty to manslaughter, which was accepted; thereupon 
sentenced to State Prison for not less than ten years nor more than fifteen years. 

Edmund J. Walsh. 

Indicted December, 1934, for the murder of Isaiah McLain, at Maiden, on Nov. 12. 
1934; arraigned Dec. 6, 1934, and pleaded not guilty; trial March, 1935; verdict 
of guilty of manslaughter; thereupon sentenced to State Prison for not less than five 
years nor more than seven years. 



22 P.D. 12. 

Southeastern District (in charge of District Attorney Edmund R. Dewing). 

Clifford C. Spokesfield. 

Indicted in Norfolk County, December, 1934, for the murder of Marie Spokesfield, at 
Westwood, on Sept. 22, 1934; arraigned Dec. 10, 1934, and pleaded not guilty; 
trial March, 1935; verdict of not guilty. 

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

Foley). 
Anthony Cognato. 

Indicted April, 1935, for the murder of Jacob Cohen, on March 6, 1935; arraigned 
April 22, 1935, and pleaded not guilty; trial November, 1935; verdict of not guilty. 

Frank Trani. 

Indicted May, 1935, for the murder of John Jannoni, alias, on May 10, 1935; ar- 
raigned May 28, 1935, and pleaded not guilty; trial June, 1935; during the trial 
retracted former plea and pleaded guilty to manslaughter, which was accepted; 
thereupon sentenced to State Prison for not more than twenty years nor less than 
twelve years. 

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

Elario Bordoni. 

Indicted in Hampden County, May, 1935, for the murder of James Parrotti, at Wil- 
braham, on Feb. 4, 1935; arraigned May 24, 1935, and pleaded not guilty; Oct. 7, 
1935, retracted former plea and pleaded guilty to manslaughter, which was ac- 
cepted; thereupon sentenced to State Prison for not more than five years and not 
less than three years. 

Alexander Lemanski. 

Indicted in Hampden County, September, 1935, for the murder of Mary Lemanski, 
at Chicopee, on May 17, 1935; arraigned Sept. 26, 1935, and pleaded not guilty; 
Oct. 14, 1935, retracted former plea and pleaded guilty to murder in the second 
degree, which was accepted; thereupon sentenced to State Prison for life. 

3. Pending indictments and status : 

Middle District (Worcester County cases: in charge of District Attornej' Owen A. 

Hoban). 
Newell P. Sherman. 

Indicted August, 1935, for the murder of Alice D. Sherman, at Sutton, on July 20, 
1935; arraigned Aug. 26, 1935, and pleaded not guilty; trial September, 1935; 
verdict of guilty of murder in the first degree; claim of appeal pending. 

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

L. Bishop). 
Julius Darish. 

Indicted April, 1935, for the murder of Albert E. Gilbert, at Everett, on April 5, 1936; 
arraigned April 16, 1935, and pleaded not guilty. 

Frank DiStasio and Anthony DiStasio. 

Indicted May, 1935, for the murder of Daniel Crowley, at Hudson, on May 6, 1935; 
arraigned May 9, 1935, and each pleaded not guilty; trial October, 1935; verdict 
of not guilty by order of the court as to Anthony DiStasio, and verdict of guilty of 
murder in the first degree as to Frank DiStasio; motion for new trial and claim of 
appeal pending. 



P.D. 12. 23 

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; trial January, 1935; 
verdict of guilty of murder in the second degree as to each; thereupon each sen- 
tenced to State Prison for life; motion for new trial and claim of appeal pending 
as to each defendant. 

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

Harold C. Look. 

Indicted in the County of Dukes County, September, 1935, for the murder of Knight 
Owen, at Tisburj-, on Sept. 12, 1935; arraigned Oct. 10, 1935, and entry of a plea 
of not guilty ordered by the court. 

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

Foley). 
Miller F. Clark, alias. 

Indicted January, 1935, for the murder of Ethel Zuckerman, on Dec. 20, 1933; ar- 
raigned Jan. 17, 1935, and pleaded not guilty; trial March, 1935; verdict of guilty 
of murder in the first degree; thereupon sentenced to death by electrocution within 
the week beginning Jan. 12, 1936. 

Ralph Pacini, alias. 

Indicted May, 1935, for the murder of Clara Pacini, alias, on April 2, 1935; defendant 
an inmate of Boston State Hospital. 

Forrest K. Wells. 

Indicted August, 1935, for the murder of Helen Wells, alias, on July 15, 1935; ar- 
raigned Oct. 11, 1935, and pleaded not guilty. 



24 P.D. 12. 

OPINIONS. 



Licenses — Business of receiving Deposits of Money for Transmission to 
Foreign Countries — Bond. 

The Commissioner of Banks may require a new bond to be given before 
the renewal of a hcense under G. L. (Ter. Ed.) c. 169, § 1, in any 
year. 

Jan. 21, 1935. 

Hon. Henry H. Pierce, Commissioner of Banks. 

Dear Sir: — I am in receipt of a communication from you in relation 
to a requested renewal of a license to carry on the business of receiving 
deposits of money for the purpose of transmitting the same or equivalents 
thereof to foreign countries, as described in G. L. (Ter. Ed.) c. 169, § 1. 

Such a license is issued "for a period of one year" (c. 169, § 3). As a 
prerequisite to receiving such a license, the licensee must give a bond 
with a surety company approved by the Commissioner of Banks. Other 
modes of securing such a bond are authorized by the statute, but inas- 
much as a bond with sureties is offered, as you inform me, by the licensee 
as to whose renewal you inquire, I confine myself to a discussion of such 
type of bond only. The bond "shall be conditioned upon the faithful 
holding and transmission of any money . . . which shall have been 
delivered to" the person engaging in the business "for transmission to a 
foreign country ..." (c. 169, § 2). A copy of such a bond, executed by 
the particular licensee to whom you refer in your comnmnication and by 
a surety company, dated March 24, 1925, is annexed to your letter as the 
one now offered to you by the applicant for renewal of the license. This 
particular bond appears to have been approved by the then Deputy 
State Treasurer and the then Commissioner of Banks, on April 24, 1925. 

You inform me that this same bond has continued to be treated as 
sufficient under the statute since its date of approval, and that the license 
of the principal has been renewed yearly upon application; that the h- 
cense will expire on or about January 22, 1935; and that an application 
for its renewal, upon the basis of the old bond as previously approved, 
is now before you. 

With relation to the bond which the licensee is to furnish, said section 3 
of chapter 169 further provides that it shall not be accepted "until it has 
been first examined and approved by the commissioner and unless also 
approved by the state treasurer . . . Upon notice of such approval by 
the state treasurer, the commissioner shall issue a license ..." These 
acts were all done, as has been said, at the time of the issuance of the first 
license in 1925. 

It is probable that the bond as required by the statute and the bond 
given by the instant licensee remain in effect as long as the principal con- 
tinues to engage in the specified business, and for a further period described 
in said section 3, so that, under ordinary circumstances, it is not improper 
to treat the original bond, as first approved, as a sufficient security upon 
which to base the issuance of subsequent annual licenses, as you tell me 
has been done heretofore, and it could at any time be enforced against 
principal and surety. 

Nevertheless, this point is not necessarily determinative of the course 
of action which may be followed in regard to the exigencies of the existing 



P.D. 12. 25 

situation concerning tliis application for a renewal of a license, as you 
have set them before me in your communication. 

You have advised me that the surety has recently "purported to termi- 
nate liability upon its surety bond," and that a controversy has developed 
between the principal and surety as to whether the surety is still bound, 
and, in effect, that the surety is prepared to deny liability upon this bond 
if now it should be sued thereon. If such be the facts, permission to the 
licensee to continue business upon no other security than the present 
bond, repudiated bj' the surety, would scarcely afford adequate protec- 
tion to such of the public as might do business with the licensee. Since 
the officers of the Commonwealth have now in fact notice that the surety 
repudiates liability, it is certainly their duty to refuse to accept for another 
year an obligation which can perhaps be enforced only by a long and 
expensive resort to the courts. Such a bond cannot furnish that certain, 
speedy and adequate protection which depositors in this particular sort of 
private banking business, for the most part persons of relatively small 
means, are entitled to, and which it was obviously the intent of the Legis- 
lature to provide for. 

Because a State Treasui'er and a Commissioner of Banks approved and 
accepted a bond almost nine years ago, it does not follow that such bond 
is necessarily approved and accepted now when it is offered, as security 
for a new annual license, by one "continuing to engage ... in the busi- 
ness of receiving deposits of money for the purpose of transmitting the 
same." 

The present State Treasurer and the present Commissioner of Banks 
have the authority at the present time, upon the instant application for 
a new license for the coming year, to signify their disapproval of this 
surety and of this bond with relation to the application for a new license. 
If in the exercise of their judgment they should now withhold approval, 
no license could properly be issued on January 22nd unless another ac- 
ceptable bond or security was furnished by the applicant for a license. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Probationary Period — Promotion. 

The rule relative to service of a probationary period does not apply to serv- 
ice rendered by an employee upon promotion to a new position. 

Jan. 22, 1935. 
Hon. James M. Hurley, Commissioner of Civil Service. 

Dear Sir : — You request my opinion as to whether Civil Service Rule 
18, section 1, providing for a six months' probationary period, applies in 
cases of promotion. 

The rule reads as follows : — 

"No person appointed in the official or labor division shall be regarded 
as holding office or employment in the classified public service until he has 
served a probationary period of six months." 

In an opinion rendered to your department on February 8, 1923, by one 
of my predecessors in office, it was ruled that the civil service rule provid- 
ing for a probationary period of six months applied only to original appoint- 
ments under civil service; and it was pointed out that if the rule applied 



26 P.D. 12. 

to promotions a civil service emploj'ee could accept a promotion only by- 
sacrificing for a period of six months the protection given him by the Civil 
Service Law against removal except for cause. VII Op. Atty. Gen. 37. 
Moreover, the rule providing for a probationary period formerly applied, 
by its terms, only to "original appointment" (see the rule as cited in Mc- 
Donald V. Fire Engineers of Clinton, 242 Mass. 587, 589) ; and doubtless 
the rule as it now reads is intended to mean the same thing. 

There is nothing inconsistent with the opinion of the Attorney General 
above referred to and McDonald v. Fire Engineers of Clinton, 242 Mass. 
587. The rule there in question referred to "original appointment for per- 
manent employment," and the original appointment of the petitioner in 
that case to permanent employment was the appointment in question, 
namely, as a permanent fireman. Moreover, subsequently to that decision 
G. L. c. 48, § 36, then before the court, was amended (St. 1923, c. 109) by 
providing that in towns promotion from the call department to the per- 
manent fire force should be "without any probationary period." 

Nor is there anything necessarily inconsistent with the said opinion of the 
Attorney General and the recent case of Buckley v. Mayor of North Adams, 
to which you refer me, decided by a single justice of the Supreme Judicial 
Court. That was a case where a fireman was appointed, without certifi- 
cation, from the reserve to the permanent force, and then dismissed without 
a hearing. The decision of the single justice dismissing the petition was 
probably based upon the ground that the appointment, having been made 
without certification bj^ the Civil Service Commissioner, was invalid, as 
not in accordance with G. L. (Ter. Ed.) c. 31, § 19A (St. 1932, c. 146), 
which provides that appointments shall be made "upon certification by the 
commissioner from the list of members of the reserve force of firemen." 
It was unnecessary, therefore, to pass upon the question as to whether, if 
the petitioner had been validly appointed to the permanent force, he would 
have had to serve a probationary period, under the civil service rules. 

In my opinion, the ruling of the Attorney General above referred to is 
correct, and I adhere to it. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Licenses — Sale of Methyl Alcohol — Agent — Association. 

An association of garage owners may buy, for resale, methyl alcohol 
through its secretary; and if its secretary is in fact acting as the 
agent of the members of the association, he may distribute to them 
severally without himself having a license to sell. 

Jan. 22, 1935. 

Dr. Henry D. Chad wick. Commissioner of Public Health. 

Dear Sir: — You request an opinion as to the requirement of a license 
to sell methyl alcohol by either the secretary or the association referred 
to in the following circumstances. 

You inform me that there is an association composed of garage owners; 
that when these individual garage owners desire to buy methyl alcohol 
they transmit an order therefor to the secretary of this association, to- 
gether with a check in payment therefor; the secretary then transmits 
the order to a wholesale chemical supply house, with which he has made 
a contract in behalf of each member of the association ; that this chemical 



P.D. 12. 27 

supply house has been furnished by the secretary with a Hst of the mem- 
bers of the association ; that on receipt of orders from the secretary the chem- 
ical house ships the goods directly to the member who ordered the same 
and receives payment therefor from the secretary, who pays the supply 
house after deducting a commission as agreed upon between the supply 
house and the association. 

The question to be determined is whether the secretary or the associa- 
tion is acting as owner of the alcohol or merely as an agent of the pur- 
chasing garage owner. 

If the secretary or the association, in operating under this arrangement, 
possesses title, which is then transferred to the garage purchaser, then a 
license to sell the product is required. If, on the other hand, the relation- 
ship of the association or its secretary is merely that of agency, then no 
license is necessary. 

Your letter does not disclose the terms of the contract made by the 
secretary, acting as agent of the individual garage owners, with the supply 
house. While the Department of Public Health would not be bound by 
this agreement, and would not thereby be prevented from showing the 
true relationship existing between the parties, yet the contract would be 
material in determining the rights of the parties between themselves, and 
in disclosing the situation in which each stood to the other. However, 
sufficient appears upon which to pass an opinion. 

The fact that the secretary handles the financial features of each trans- 
action would not prevent him from acting as agent of the purchasers; 
neither would the fact that the goods are shipped directly from the supply 
house to the garage owner. It is apparent that the secretary acts as the 
agent of disclosed principals in his relation to the supply house, and, in 
the absence of any provisions to the contrary in the agreement made by 
the secretary with the supply house, the latter could sue and collect from 
the individual garage owners for the goods sold and delivered to such 
owners upon orders furnished by the secretary. The commission deducted 
is either compensation to the secretary for his services or goes into a com- 
mon fund for the benefit of the members of the association. Indeed, the 
whole plan is suggestive of a co-operative buying agreement by which 
certain trade advantages are secured and such association's funds are 
held by agents of its participating members rather than vendors. 

Even though the statute applies to a person engaged in the business of 
manufacturing, buying, selling, transporting, importing or exporting or 
dealing in methyl alcohol or wood alcohol, so called (see G. L. [Ter. Ed.] 
c. 94, § 303 A), yet an individual agent is not required to have a license if 
one has been secured by his principal, any more than an individual sales- 
man selling such products would be required to have a license if his 
employer had one. 

Consequently, I am of the opinion that no license is required from 
either the secretary or the association in continuing to conduct the above- 
described arrangement. 

Very truly yours, 

Paul A. Dever, Attorney General. 



28 P.D. 12. 

Licenses — Alcohol — Local Boards of Health. 

All licenses granted during 1934, by municipal boards of health, for the 
sale of methyl alcohol or denatured alcohol ceased to be effective on 
January 1, 1935. 

Jan. 22, 1935. 

Dr. Henry D. Chadwick, Commissioner of Public Health. 

Dear Sir: — You inform me that the board of health of one of our 
large cities has refused to issue new licenses for the sale of wood alcohol, 
as it contends that such licenses issued in 1934 by that board would not 
expire until April 30, 1935; and you request an opinion as to the expira- 
tion date of such licenses. 

For a number of years prior to the enactment of St. 1933, c. 376, boards 
of health were authorized to grant licenses for the sale of methyl alcohol 
and denatured alcohol, which licenses expired on the thirtieth day of 
April following the date of their issuance. G. L. (Ter. Ed.) c. 138, § 35. 
This licensing authority was continued in the various boards of health 
by the provisions of G. L. (Ter. Ed.) c. 138, § 72, inserted by St. 1933, 
c. 376. Under this last-mentioned chapter all licenses and permits issued 
thereunder were to expire on the last day of the calendar year in which 
they were issued (see G. L. [Ter. Ed.] c. 138, § 23, inserted by St. 1933, 
c. 376), except that licenses then in effect should "continue to have full 
force and effect for the term for which issued, unless sooner revoked by 
the authority issuing the same." St. 1933, c. 376, § 5. 

It is therefore clear that all licenses issued prior to the adoption of this 
last-mentioned act expired not later than April 30, 1934, and that since 
January 1, 1934, all licenses thereafter issued could not continue in force 
later than the thirty-first day of December of that calendar year. 

G. L. (Ter. Ed.) c. 138, § 72, inserted by St. 1933, c. 376, under which 
licenses for the sale of both methyl alcohol and denatured alcohol were 
issued by the various boards of health, was repealed by St. 1934, c. 372, 
§ 1. Thereafter, the power to grant licenses for the sale of denatured 
alcohol was given to the local licensing authorities and to the Alcoholic 
Beverages Control Commission. G. L. (Ter. Ed.) c. 138, § 76, inserted 
by St. 1934, c. 372. 

The authority, however, to issue licenses for the sale of methyl alcohol 
was retained in the various boards of health and in the Department of 
Pubhc Health. G. L. (Ter. Ed.) c. 94, §§ 303A and 303B, inserted by St. 
1934, c. 372. Upon the enactment of said chapter 372, licenses granted 
for the sale of denatured alcohol and those issued for the sale of methyl 
alcohol all expired on the thirty-first day of the following December, 
although such licenses were then issued by different boards. 

It is manifest that after September 27, 1934, the sale of denatured 
alcohol was not authorized by any licensee of a board of health. One 
who held an effective license at the date last mentioned, and which, but 
for the passage of St. 1934, c. 372, would continue in effect until Decem- 
ber 31, 1934, cannot complain that the term of his license was shortened 
by an act of the Legislature subsequent to the date of the issuance of his 
license. His license was a mere personal privilege granted to do what 
otherwise would be unlawful. The license was simply a means adopted 
by the Legislature, in the exercise of the police power, to regulate the sale 
of an article, in the interest of the public health and safety. The recipient 



P.D. 12. 29 

of such a license did not, by virtue thereof, secure any contractual rights. 
He had merely a permit whose tenure always depended upon the chance 
that it might he modified, restricted or eliminated if the Legislature deter- 
mined that the existence of such licenses was detrimental to the public 
good. 

It is familiar law that licenses governing the regulation of a trade or 
business may be abolished bj^ the Legislature before the expiration of the 
period for which they were originally granted. The granting, however, 
of any such license cannot prevent the Legislature from enacting all 
reasonable laws for the common good, and to effect such changes in the 
conduct of any business as the exigencies of the public welfare may 
demand. 

I am therefore of the opinion that all licenses granted during 1934, by 
boards of health of the various cities and towns, for the sale of either 
methyl alcohol or denatured alcohol were not effective later than Janu- 
ary 1, 1935, and that in no case can any such hcenses issued prior to the 
date last mentioned be held to be still in full force and effect. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Licenses — Sale of Methyl Alcohol — Local Boards of Health. 

Local boards of health were under a duty to issue new licenses for the sale 
of methyl alcohol, after January 1, 1935. 

Jan. 23, 1935. 

Dr. Henry D. Chadw^ick, Commissioner of Public Health. 

Dear Sir: — You have advised me that a local board of health has de- 
clined to issue a new license to any applicants for a license for the sale of 
methyl alcohol under the provisions of G. L. (Ter. Ed.) c. 94, §§ 303A - 
303E, as inserted by St. 1934, c. 372, apparently upon the ground that 
such applicants hold licenses to sell meth}'! and denatured alcohol pre- 
viously issued to them on April 30, 1934; and you ask my opinion as to 
the effect of amendments to the General Laws affected by the amending 
statute, St. 1934, c. 372, with relation to the necessity for the issuance of 
new licenses to such applicants after December 31, 1934. 

Prior to 1933, local boards of health were authorized to issue licenses for 
the sale of methyl alcohol and denatured alcohol to certain persons, such 
licenses to expire on April thirtieth of each year. G. L. (Ter. Ed.) c. 138, 
§§34 and 35. Said chapter 138 was stricken from the General Laws and a 
new chapter 138 inserted in its place by St. 1933, c. 376, § 2. This new 
chapter 138 provided, in section 72, that local boards of health might 
annually grant to persons who applied therefor licenses for the sale of 
methyl alcohol or denatured alcohol, and that the State Department of 
Public Health might also grant certain licenses with relation to such alco- 
hols. 

The amending statute, said chapter 376, provided, in section 5, that all 
licenses theretofore issued under the authority of the old chapter 138, and 
in effect immediately prior to the taking effect of the new act, should con- 
tinue to have full force and effect for the term for w^hich they were origi- 
nally issued; so that hcenses granted in April, 1933, expired on April 30, 
1934. But it w^as provided bj^ the new chapter 138 that all licenses granted 
under this chapter, unless otherwise provided therein, should expire on the 



30 P.D. 12. 

thirty-first day of December of the year of issue. Therefore, a Hcense issued 
or renewed in April, 1934, being then, since the said new act had become 
effective, a Hcense granted under chapter 376, expired by express provision 
of the statute on December thirty-first of the year of its issue, which would 
be 1934. 

Accordingly, it became necessary that new licenses should be issued in 
January, 1935, or thereafter, to persons desiring to deal in methyl alcohol; 
and provision for such licenses was established by an amendment to G. L. 
(Ter. Ed.) c. 94, by St. 1934, c. 372, which provided that a local board of 
health might issue licenses for the sale of methyl alcohol to qualified appli- 
cants, and that the Department of Public Health might likewise issue simi- 
lar licenses applicable to use anywhere within the Commonwealth. St. 
1934, c. 372, became effective on September 27, 1934, and under its provi- 
sions it is the duty of local boards of health to issue licenses for the sale of 
methyl alcohol to proper persons, and it is likewise the duty of the Depart- 
ment of Public Health to take similar action when required. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Attorney General — Opinions — Municipal Authorities. 

Jan. 29, 1935. 

Hon. Richard R. Flynn, Commissioner of State Aid and Pensions. 

Dear Sir : — You have written me relative to the use by the Boston 
soldiers' relief department of the Social Service Index, and request my 
opinion as to whether or not such use constitutes a violation of G. L. (Ter. 
Ed.) c. 40, § 51. There were inclosed with your letter copies of two letters, 
— one from the soldiers' relief commissioner of Boston to you, asking that 
you obtain an opinion from me; and the other setting forth an opinion 
rendered to the said commissioner by the then acting corporation counsel 
of Boston. 

This department has no authority whatever to advise heads of munici- 
pal departments in matters of entirely local concern and pertaining solely 
to the administration of some city or town office. This has always been the 
established policy of this department. Consequently, I must decline, as I 
respectfully do, to comply with your request. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Building — Licensed Premises — Vessel. 

A floating vessel tied to a wharf is not a public building, within the mean- 
ing of G. L. (Ter. Ed.) c. 143, § 1. 

Jan. 30, 1935. 
Hon. Paul G. Kirk, Commissioner of Public Safety. 

Dear Sir: — You desire my opinion in the following matter: — 

"I respectfully request your opinion as to whether or not a floating 
vessel tied to a wharf and licensed by the city as a dine-and-dance hall, to 
which the pubHc is admitted, comes within the definition of 'pubHc build- 
ing' as defined by G. L. (Ter. Ed.) c. 143, § 1, and therefore requires a 
certificate of occupancy from this department." 



P.D. 12. 31 

A floating vessel, even if tied to a wharf, does not fall within the defini- 
tion of "pubhc building" set forth in G. L. (Ter. Ed.) c. 143, § 1, which 
reads : — 

'"PubHc building', any building or part thereof used as a public or 
private institution, schoolhouse, church, theatre, special hall, public hall, 
miscellaneous hall, place of assemblage or place of public resort." 

A floating vessel is not a "building," which latter word is construed in 
law as denoting a structure built where it is to stand or affixed to the soil. 
Bouvier's Law Dictionary; Small v. Parkway Auto Supplies, Inc., 258 
Mass. 30, 33; Rouse v. Catskill, etc., Steamboat Co., 59 Hun (N. Y.) 80; 
Southwestern Bell Tel. Co. v. Drainage District, 247 S. W. (Mo.) 494, 495. 
I therefore answer your question in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Attorney General — Opinions — Hypothetical Question. 

Feb. 14, 1935. 

Brig. Gen. Charles H. Cole, Chairman, State Racing Commission. 
Dear Sir: — You have asked my opinion upon the following matter: — 

"There has been much agitation and many newspaper reports about this 
question: 'Is it legal to build within fifty miles of another track, though 
the other track is located in another state?' 

Therefore, to clarify this question, we would like a statement from you 
stating your interpretation." 

It would appear from your letter that there is not before you any appli- 
cation for a license for a horse racing meeting, nor any other similar matter 
upon which your Commission is required to take action. The long-con- 
tinued practice of this department and the precedents set by my predeces- 
sors in office indicate, what is undoubtedly the correct rule of law, that it 
is not within the province of the Attorney General to determine hypo- 
thetical questions which may arise, as distinguished from questions rela- 
tive to actual states of fact set before the Attorney General, upon which 
states of fact public officials are presently required to act; nor is it the 
duty of the Attorney General to attempt to make general interpretations 
of statutes or of the duties of officials thereunder, except as such interpre- 
tations may be necessary to guide them in the performance of some im- 
mediate duty. See I Op. Atty. Gen. 275; II ibid. 100; III ibid. 425; 
Opinion of the Attorney General to the Commissioner of Correction, 
February 8, 1935 (not published). 

The members of this department are always at your service for consulta- 
tion and assistance with reference to the work of your Commission, but for 
the foregoing reasons I may not properly, in a formal opinion, comply with 
the request contained in your letter. 

Very truly yours, 

Paul A. Dever, Attorney General. 



32 P.D. 12. 

Teachers' Retirement System — Public School — Private Academy. 

Feb. 18, 1935. 

Dr. Payson Smith, Chairman, Teachers' Retirement Board. 

Dear Sir: — You request my opinion upon the application of the law- 
relative to the teachers' retirement system, now embodied in G. L. (Ter. 
Ed.) c. 32, as amended, which in its original form went into effect, by virtue 
of St. 1913, c. 832, on July 1, 1914, as it concerns teachers who are or have 
been employed in the Punchard Academy at Andover. 

By an opinion of a former Attorney General, rendered August 6, 1924, 
it was determined that the Punchard Academy was then a "public school." 
VII Op. Atty. Gen. 500. 

By an opinion of a former Attorney General, rendered May 28, 1934, 
you were told that it was within your province and a part of your duty, in 
view of matters before you for your consideration, to determine as a matter 
of fact, guided by certain principles of law which were set forth, the date 
between 1902 and 1924 at which the Punchard Academy became a "public 
school." Attorney General's Report, 1934, p. 86. With these opinions 
I concur. 

You now advise me that you have in effect made a determination that 
the Punchard Academy became a "public school on January 1, 1910," 
and has remained such since that date. I assume that your finding of 
fact in this respect, which you state to have been based on evidence before 
you, was correct. 

In view of this determination on your part, you now ask my opinion 
upon the law applicable to the following questions, which relate to cases 
actually before you for determination in administering the Teachers' 
Retirement Law. 

1. Your first question reads: — 

"Are teachers now employed in the public schools of Massachusetts 
(irrespective of their present place of employment), who were employed 
in Punchard Academy at any time between September, 1914, and August 
6, 1924, required to pa}^ the omitted assessments which should have been 
deducted for the retirement fund, with interest on these assessments to 
the date of payment, in the following cases: 

(a) If the teachers had no service prior to July 1, 1914? 

(h) If the teachers had service in the public schools of Massachusetts 
prior to July 1, 1914, and voluntarily joined the Retirement Association 
before entering the academy?" 

It is obvious that since the Punchard Academy is to be taken to be a 
public school since January 1, 1910, it is to be treated since that date as 
any other pubHc school would be, and the rights and obligations, relative 
to the teachers' retirement system, of those who are or have been teachers 
in said academy are to be governed by the same principles of law that are 
applicable to teachers in any of the public schools of the Commonwealth. 
The fact that certain teachers have since January 1. 1910, been connected 
with the said academy cannot in any manner entitle them to the applica- 
tion of any different rules of law from those which apply to all other public 
schoolteachers in connection with the teachers' retirement system. 

Teachers who entered the service of the Punchard Academy between 
September, 1914, and August 6, 1924, became, by virtue of that fact, mem- 
bers of the Retirement Association, if they had had no previous service as 



P.D. 12. 33 

teachers in any public school prior to July 1, 1914. If they had had such 
previous service before June 30, 1914, they became members of the Retire- 
ment Association before entering the academy, if they had made applica- 
tion in writing for that purpose before September 30th; and if they had 
not made such application before September 30th they became members 
if they made it thereafter and paid an amount equal to the total assess- 
ments, together with regular interest thereon, that they would have paid 
if they had joined before September 30, 1914. St. 1913, c. 832, § 3; G. L. 
(Ter. Ed.) c. 32, § 7. 

With either of these classes, however, the members are required to keep 
up the payment of assessments after they have once become members of the 
association. The fact that such payments have not been demanded of 
them does not relieve them of the obligation of payment. I assume that, 
by reason of the uncertainty as to the status of the Punchard Academy, 
no assessments had been paid by any of the teachers for periods covered 
by their service in such academy before August 6, 1924. Nevertheless, as 
is now apparent, the laws relative to the retirement system were applicable 
to them while at the academy, and whatever assessments were not paid 
during the time of their connection with the academy should now be made 
up. This principle of law was enunciated at considerable length in an 
opinion of a former Attorney General, with which I concur. VIII Op. 
Atty. Gen. 606 (1). 

Accordingly, I answer your first question in the affirmative, as regards 
both (a) and (6). 

2. Your second question reads: — 

"Teachers who were employed in Punchard Academy between January 
1, 1910, and July 1, 1914, who had no other service in Massachusetts prior 
to July 1, 1914, were required to join the Retirement Association in Septem- 
ber, 1924, or if they left the academy prior to September, 1924, to enter 
a Massachusetts public school, membership was required at that time. 
As these teachers should have been given the option of joining the Retire- 
ment Association (the Department of Education having recently ruled 
that Punchard Academy has been a public school since 1910), shall they 
now be permitted to terminate their membership and withdraw the amount 
to their credit? 

If they wish to continue their membership, are they required to pay the 
omitted assessments for service in the academy between July 1, 1914, and 
August 6, 1924, with interest to the date of payment?" 

In view of the fact that the teachers whom you mention in this question 
were entitled to have given them an opportunity to elect whether they 
would or would not become members of the Retirement Association, the 
simplest principles of fair dealing, since a contrary action is not specifically 
required by the statute law, require that they now be permitted to termi- 
nate their membership and withdraw the amount to their credit, if they so 
desire. If, however, they now elect to remain in the association, the same 
principles of law, outlined in my answer to your preceding question, are 
applicable, and they must now pay up omitted assessments for periods of 
service in the academy, with interest. VIII Op. Atty. Gen. 606 (2). 

I answer your second question in the affirmative, as to both parts. 

3. Your third question, as regards both its inquiries, reads: — 

"Teachers who were employed in the public schools of Massachusetts 
prior to July 1, 1914, who were employed in the Punchard Academy at 



34 P.D. 12. 

any time between July 1, 1914, and August 6, 1924, and who voluntarily 
joined the Retirement Association after August 6, 1924, were not required 
to pay assessments for their service in the academy prior to August 6, 1924. 

Are these teachers required to pay the omitted assessments, with inter- 
est, if they wish to continue their membership? 

If it is required that the omitted assessments, with interest, shall be 
paid in order to continue their membership, and as they joined with the 
understanding that these assessments were not due, shall they now be per- 
mitted to terminate their membership and withdraw the amount to their 
credit?" 

The same principles of fair dealing, to which I have alluded in my answer 
to your second question, impel me to say that the teachers referred to in 
this third question should be permitted to terminate their membership in 
the association if they wish, and withdraw the amount of payments stand- 
ing to their credit. If, on the other hand, they wish to continue member- 
ship, they must, like those teachers referred to in the second question, pay 
up all omitted assessments, with interest. This answers the two queries 
contained in your third question. 

4. In view of my previous answers, your fourth question does not re- 
quire any specific response. 

5. In view of the fact that the opinion heretofore referred to, VIII Op. 
Atty. Gen. 606, stated that "a teacher may not be granted a retiring al- 
lowance before the amount due the retirement fund has been paid in full," 
your fifth question does not call for an answer. Where assessments are 
eventually paid, services rendered at Punchard Academy will be entitled 
to the same credit as services rendered at any other public school, after 
January 1, 1910. 

If it be thought by your Board that payment at the present time or in 
the near future of large amounts of back assessments, which should have 
been required in small amounts over a long period but were not so required 
by reason of lack of information as to the provisions of the applicable 
statutes, on the part of your Board, works a hardship, request might prop- 
erly be made by your Board, on behalf of the teachers, for legislation tend- 
ing to mitigate the difficulties inherent in the existing situation. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Racing Commission — Licenses — Race Track. 

A license may be issued for a racing meeting to be held at a track within 
fifty miles of a race track outside the Commonwealth. 

Feb. 19, 1935. 

Brig. Gen. Charles H. Cole, Chairman, State Racing Commission. 

Dear Sir: — You have advised me that your Commission has before 
it for action applications for licenses for several horse racing meetings, 
each of which racing meetings, if licensed, is to be conducted at a race 
track within fifty miles of another race track located entirely outside the 
Commonwealth. 

You inquire in effect as to whether, in my opinion, you may properly 
issue a license for any of such horse racing meetings, regardless of the fact 



P.D. 12. 35 

that each of such meetings is to be conducted at a place which is within 
fifty miles of a race track situated entirely outside the Commonwealth. 

I answer your inquiry to the effect that the fact that a horse racing 
meeting is to be conducted at a race track within fifty miles of a race track 
outside the Commonwealth is not of itself sufficient to prevent your Com- 
mission from licensing such a racing meeting. 

The appUcable provision of G. L. (Ter. Ed.) c. 128A, § 3 (h), as inserted 
by St. 1934, c. 374, § 3, reads: — 

"No licenses shall be issued to permit running horse racing meetings 
to be held or conducted, except in connection with a state or county fair, 
at the same time at more than one race track within the commonwealth, 
nor at any time at a race track located within fifty miles of another race 
track, one mile or more in circumference." 

That the words "another race track" in the foregoing section refer to 
a track within, and not outside, the Commonwealth is, in the first instance, 
to be gathered from an application to the words of said section of the 
definitions of "racing meeting" and of "race track," as estabhshed by the 
Legislature in section 1 of said G. L. (Ter. Ed.) c. 128A, which section 
is as follows : — 

"Terms used in this chapter shall, unless the context otherwise requires, 
be construed as follows : — 

' Racing meeting ' shall include every meeting within the commonwealth 
where horses or dogs are raced and where any form of betting or wagering 
on the speed or ability of horses or dogs shall be permitted, but shall not 
include any meeting where no such betting or wagering is permitted even 
though horses or dogs or their owners, are awarded certificates, ribbons, 
premiums, purses, prizes or a portion of gate receipts for speed or ability 
shown. 

'Race track' shall include the track, grounds, auditorium, amphi- 
theatre and/or bleachers, if any, and adjacent places used in connection 
therewith, where a horse or dog racing meeting may be held." 

If, then, by the terms of the foregoing definitions a "racing meeting" 
is "one within the commonwealth" and a "race track" is a track where 
"a horse or dog racing meeting may be held," it follows that the race track 
referred to in said section 3 (h) as "another race track" must be a track 
within the Commonwealth. The definition says that "race track" means 
a track "where a horse or dog racing meeting may be held," and a "racing 
meeting" is defined as a "meeting within the commonwealth." Obvi- 
ously, a racing meeting may not be held at a track not within the Com- 
monwealth; so that "race track" whenever used in the statute, unless 
"the context otherwise requires," means a race track within the Com- 
monwealth. 

There is nothing in the context of the particular portion of the statute 
contained in section 3 (h), nor in the statute itseK, which requires that 
any construction of the words "race track " prefixed by the word "another " 
should be other or different than that definitely prescribed by the Legis- 
lature in said section 1. 

Indeed, it appears from the provisions of the statute that it was the 
intent of the General Court, among other things, to promote the pubhc 
welfare by limiting the number of racing meetings which might be held 
simultaneously in Massachusetts. It is not to be assumed that the Gen- 
eral Court was attempting to legislate with regard to the use of tracks 



36 P.D. 12. 

and the conduct of racing outside the territory of the Commonwealth. 
Furthermore, it cannot well be doubted that, had it been the intention 
of the Legislature to make prohibitions as to the use of Massachusetts 
licenses in relation to places situated or events occurring outside its juris- 
diction, it would have so stated in plain and unequivocal language; and 
if it had intended that the definitions set forth in said section 1 should 
not apply to words used in said section 3 (h) it would have so said. Had 
such been its intention, it, obviously, would have used after the phrase 
in said section 3 (h), "within fifty miles of another race track," the words 
"whether within or without the commonwealth," or some similar expres- 
sion, so as to cause the construction of the words "racing meetings" and 
"race track" to be different from that required by the definitions of said 
section 1. The Legislature has not done this. 

If it was also the intent of the Legislature, among other things, as it 
seems to have been in enacting the provisions of the statute under dis- 
cussion, to promote the public welfare by protecting licensees against 
ruinous competition due to the issuing of too many licenses, its statutory 
phraseology cannot properly be interpreted so as to place prohibitions 
upon licensees of Massachusetts for the benefit of persons not licensees, 
who conduct racing meetings or maintain tracks entirely outside the 
Commonwealth. It cannot properly be supposed that the General Court 
would enact legislation discriminating against licensees of this Common- 
wealth for the benefit of persons conducting business in other States, so 
as to give to such persons whose business is in other States a virtual 
monopoly of the racing business in various wide areas of Massachusetts. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Licenses — Fuel Oil — Appeal — State Fire Marshal. 

The State Fire Marshal has no authority to consider an appeal from the 
granting of a license for the keeping of fuel oil, under G. L. (Ter. Ed.) 
c. 148, § 13, which is not filed within ten days from the date of the 
order granting such license. 

Feb. 19, 1935. 
Mr. Stephen C. Garrity, State Fire Marshal. 

Dear Sir: — You state that on March 1, 1933, a license was granted 
by the board of street commissioners of the city of Boston, approved by 
the mayor, to the White Fuel Corporation for the keeping, storage and 
sale of fuel oil, under G. L. (Ter. Ed.) c. 148, § 13; and that on March 31, 
1933, a written appeal was filed with you from the granting of said license. 
You request my opinion as to whether said appeal may properly be heard 
by you. 

Said section 13 provides that a person aggrieved by the granting of a 
license under said section may, "within ten days after the granting 
thereof," appeal to the Marshal. Section 31 of said chapter 148 also 
provides that any person aggrieved by any act, order or decision of any 
person acting under authority derived from said chapter (except section 5) 
may appeal to the Marshal, and that such appeal "shall be filed with the 
marshal not later than ten days following the act, order or decision appealed 
from." 

There is no statutory provision giving you authority to consider an 
appeal not filed with you in accordance with the requirements above 



P.D. 12. 37 

referred to. Inasmuch as, according to your statement, the so-called 
appeal was not filed with you within ten days following the granting of 
the license, you have no jurisdiction to consider it. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Commission — Licenses — Town — Census. 

A return made by the selectmen of a town to the Secretary of the Com- 
monwealth, as to the population of the town, is not to be adopted by 
the Alcoholic Beverages Control Commission as a correct statement 
of such population, in applying the provivsions of G. L. (Ter. Ed.) 
c. 138, § 17, if it differs in its figures from those of the last preceding 
census as compiled by the Secretary of the Commonwealth. 

Feb. 25, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You state that the selectmen of the town of Ipswich, 
in connection with taking the State census in the present year, have re- 
turned, under oath, to the Secretary of the Commonwealth a statement 
showing the population of that town to be in excess of the population shown 
by the last preceding State or national census. G. L. (Ter. Ed.) c. 138, 
§ 17, fixes the number of licenses to be granted for the sale of alcohohc 
hquor in a city or town according to "population" units. You request my 
opinion as to whether the number of licenses to be granted by the town 
of Ipswich is to be determined by the population as shown by the last pre- 
ceding census or by the return now made by the selectmen to the Secretary 
of the Commonwealth. 

By G. L. (Ter. Ed.) c. 4, § 7, cl. Forty-first, "population" is defined as 
"population as determined by the last preceding state or national census." 

Mass. Const. Amend. LXXI, adopting article XXI, provides, in part: 

"In the year nineteen hundred and thirty-five and every tenth year 
thereafter a census of the inhabitants of each city and town shall be taken 
and a special enumeration shall be made of the legal voters therein." 

G. L. (Ter. Ed.) c. 9, § 9 (as amended by St. 1934, c. 127), provides for 
the appointment by the Secretary of the Commonwealth of a State census 
director, to act under the direction of the Secretary of the Commonwealth. 

Section 7 of G. L. (Ter. Ed.) c. 9 (as amended by St. 1934, c. 25, § 2), 
reads as follows : — 

"In nineteen hundred and twenty-five and every tenth year thereafter, 
the mayor of every city and the selectmen of every town shall cause a 
census to be made of the inhabitants of their respective cities and towns 
residing therein on January first, on forms provided by the secretary, and 
in accordance with his instructions, and shall return the same under oath 
to the office of the secretary on or before June thirtieth following, together 
with a sworn statement of the total of such census. In making such census 
the services and facilities of the assessors and police of a city or town shall 
be available to the mayor of such city or the selectmen of such town. The 
secretary may in his discretion verify any such census in such manner as 
he deems advisable, and for this purpose may inspect the records of any 
citj'' or town and call upon the mayor or selectmen for such further infor- 
mation as he desires. From the returns so made, with such amendments 



38 P.D. 12. 

as the secretary may find necessary to correct any errors or omissions 
therein, he shall compile the census of inhabitants of each city and town 
required by Articles XXI and XXII of the amendments to the constitu- 
tion, and may publish the results thereof in such form as he may deter- 
mine." 

Inasmuch as this section provides that the Secretary of the Common- 
wealth shall "compile the census" of inhabitants of each city and town 
from the returns, "with such amendments as the secretary may find neces- 
sary to correct any errors or omissions therein," it is my opinion that the 
census cannot be said to be complete until compiled by the Secretary of 
the Commonwealth, and that the return made by the selectmen of the town 
of Ipswich cannot, prior to compilation by the Secretary of the Common- 
wealth, be used as a determination of the population of the town in apply- 
ing the provisions of G. L. (Ter. Ed.) c. 138, § 17. See, also. In re Sewer 
Assessment for Passaic, 54 N. J. L. 156, 161; Wolfe v. City of Moorhead, 
98 Minn. 113. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Veterans' Preference — Service. 

March 1, 1935. 

Hon. James M. Hurley, Commissioner of Civil Service. 

Dear Sir : — You request an opinion as to whether a certain man is 
entitled to veterans' preference under G. L. (Ter. Ed.) c. 31, § 21. It 
appears that the person referred to was an enlisted man in the United 
States Navy during the period from December 14, 1922, to April 10, 1928; 
that he was honorably discharged; and that he has been awarded the 
Yangtze Service Medal. 

His services in the navy during the above-mentioned years were not 
during the time of war or insurrection. In the next place, one is not en- 
titled to veterans' preference who has served in the armed forces of the 
United States other than during the time of war or insurrection, unless he 
has received the Congressional Medal of Honor. The Yangtze Service 
Medal is not the medal referred to in the section above cited, and, conse- 
quently, is not sufficient to entitle him to the benefits of the section above 
referred to. 

I am therefore of the opinion that he does not come within the definition 
of those persons entitled to veterans' preference under said section 21. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Plumbing — Licenses and Permits — Commonwealth. 

The provisions of G. L. (Ter. Ed.) c. 142, with relation to the licensing 
of plumbers and the procuring of permits to do plumbing work, have 
no application in connection with buildings owned or occupied by 
the Commonwealth. 

March 1, 1935. 

Mr. Michael Zack, Director of Registration. 

Dear Sir : — You request an opinion as to whether or not the provi- 
sions of G. L. (Ter. Ed.) c. 142, "relative to the licensing of plumbers and 



P.D. 12. 39 

the procuring of permits to do plumbing work are applicable to plumbing 
done in State-owned buildings." You further call my attention to sec- 
tions 11 and 13 of said chapter 142 as seeming "to indicate that no excep- 
tion was contemplated in favor of State-owned buildings." 

An opinion bearing somewhat directly on the question presented by 
you has alreadj^ been rendered by one of my predecessors, under date of 
July 11, 1932, to the Commissioner of Agriculture, to the effect that the 
provisions of the last-mentioned chapter do not apply to a building being 
erected by a State commission. Attorney General's Report, 1932, p. 86. 
I am satisfied with that opinion. In the next place, it is clear that there 
is an exception in section 11 as to buildings owned or occupied by the 
Commonwealth, in that plumbing is to be inspected only in such buildings 
for the construction, alteration or repair of which permits are required, and 
it is clear that no permit for doing any such work is required of the Com- 
monwealth, by the express provisions of G. L. (Ter. Ed.) c. 143, § 3. 

I am therefore of opinion that the provisions of said chapter 142 have 
no application to buildings owned or occupied by the Commonwealth. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Dentist — Registration — A nnual Fee — Commonwealth. 

March 4, 1935. 
Mr. Michael Zack, Director of Registration. 

Dear Sir : — You request my opinion as to whether or not a dentist 
employed full time by the Commonwealth and/or a city or town must 
pav an annual registration fee. 

G. L. (Ter. Ed.) c. 112, § 44, provides: — 

"Every registered dentist when he begins practice, either by himself 
or associated with or in the employ of another, shall forthwith notify the 
board of his office address or addresses, and every registered dentist prac- 
ticing as aforesaid shall annually, before April first, pay to the board a 
license fee of two dollars." 

It is clear that before commencing practice every dentist must be reg- 
istered, and thereafter every registered dentist while actually engaged 
in the practice of his profession must pay an annual fee at the time and 
in the amount prescribed by the above-mentioned statute. 

Moreover, there is nothing in the statute exempting a dentist employed 
by the Commonwealth or by a city or town from its provision relative to 
annual registration. 

I am therefore of the opinion that such a dentist comes within the provi- 
sions of the statute above cited, and must be registered and pay an annual 
fee in the manner therein mentioned. 

Very truly yours, 

Paul A. Dever, Attorney General. 

National Guard — Town — Target Practice — Transportation. 

March 11, 1935. 

Lt. Col. Porter B. Chase, Adjutant General, E.vecutive Officer. 

Dear Sir: — You advise me that the town of Wakefield "makes a 
yearly appropriation for target hire of the unit stationed in that town at 



40 P.D. 12. 

the rifle range at Camp Curtis Guild; . . . that the town is wilUng to 
pay transportation to and from the range in addition to target hire, but 
that it does not feel that it has authority to do so under the statute." 

The statute referred to is G. L. (Ter. Ed.) c. 33, § 37. 

It is not the duty of the Attorney General to advise town officei's, either 
directly or indirectly, as to the exercise of their authority, nor as to the 
powers and obligations of towns as such ; nor are such officers bound by any 
such advice which the Attorney General may give. I know of no provi- 
sion of the statutes which explicitly or impliedly authorizes towns to 
appropriate money for the transportation of members of the Militia or the 
National Guard to or from such "suitable grounds for parade, drill and 
small arms practice" as are provided and maintained by the selectmen. 

It has been held by one of my predecessors in office that the duty to 
provide suitable grounds for the designated purpose carries with it, by 
necessary implication, the duty to provide thereon targets and other 
structures reasonably necessary for the use of the grounds (I Op. Atty. 
Gen. 63) ; but the principle of such opinion cannot reasonably be extended 
to include the furnishing of transportation. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Auditor — Duties — Lowell Textile Institute. 

March 18, 1935. 

Hon. Thomas H. Buckley, Auditor of the Commonwealth. 

Dear Sir : — You request advice relative to the right of your depart- 
ment to audit the accounts of the Textile Co-operative Society of the 
Lowell Textile Institute, and I advise you as follows. 

In a letter from the president of the school to this department, dated 
March 4, 1935, he says, in statement No. 4: — 

"The profits derived have accumulated into a fund, the income from 
which has been used to help worthy students in defrajdng in part their 
school expenses." 

Upon due investigation of the facts, and in view of the above informa- 
tion received from the president, and an examination of the statute, namely, 
G. L. (Ter. Ed.) c. 11, § 12, it would seem that your department has a 
right to audit the accounts, as from the facts it would appear that this 
organization may be described as an "activity," as set forth in the above- 
mentioned section. 

Very truly yours, 

Paul A. Dever, Attorney General. 

National Guard — Compensation for Injuries — Federal Service. 

Compensation may be awarded to an officer for injuries received while 
attending a Federal school of instruction under orders of his superiors. 

March 21, 1935. 

Brig. Gen. William I. Rose, The Adjutant General. 

Dear Sir: — You have asked my opinion, in effect, as to whether or 
not a military board of inquiry, acting under G. L. (Ter. Ed.) c. 33, § 69, 



P.D. 12. 41 

is authorized to award compensation to a certain officer of the National 
Guard (which is part, at least, of the organized Volunteer Militia of Massa- 
chusetts) who in 1926 was injured in the course of his duties while at a 
school of instruction maintained by the United States War Department, 
which National Guard officers were permitted by Federal authorities to 
attend. 

Under the provisions of the National Defense Act the United States 
disburses payment and various allowances itself to such officers while they 
are at such a school, and also provides medical attendance for them if 
injured durino; their course of studies, but does not award them compensa- 
tion for disability due to injuries so received. U. S. C. A., Title 32, §§ 64, 
65, 145 and 146. 

You advise me that the officer in question was attending such a school 
of instruction upon specific orders issued by the Commander-in-Chief 
of the Militia of this Commonwealth, through the appropriate subordinate 
officers, so that such attendance was in the line of duty as a member of the 
organized Volunteer Militia or of the National Guard of Massachusetts. 

An officer so attending a Federal school of instruction in peacetime, 
even when his compensation while there is paid by the United States, does 
not lose his status as a member of the Volunteer Militia of this Common- 
wealth, although subject temporarily to the orders and discipline of the 
United States Army. 

G. L. (Ter. Ed.) c. 33, § 69, in its first sentence provides: — 

"A member of the volunteer militia who shall, when on duty or when 
assembled therefor under sections seventeen, twenty-five, twenty-six, 
one hundred and twenty-three, one hundred and thirty-five and one 
hundred and eighty-one, receive any injury by reason of such duty or 
assembly, or who shall without fault or neglect on his part be wounded 
or disabled, or contract any sickness or disease, while performing any such 
lawfully ordered militia duty, incapacitating him from pursuing his usual 
business or occupation, shall, during the period of such incapacity, receive 
compensation to be fixed by a board appointed to inquire into his claim, 
not exceeding in amount the pay plus ration allowance provided for by 
this chapter and actual necessary expenses for care and medical attend- 
ance." 

The particular types of duty, performance of which entitles the militia- 
man to compensation for injury, as set forth in the above-quoted section, 
are of two classes, — (1) those customarily performed with units of the 
service within the jurisdiction of the Commonwealth, described in sec- 
tions 17, 25, 26, 123 and 135 of said chapter 33; and (2) those duties of 
all other sorts which a member of the Militia may properly render not only 
with a unit but individually, and not only within the Commonwealth 
but outside it, in conjunction with the Federal forces or otherwise, under 
directly prescribed terms and conditions of duty set forth by the Com- 
mander-in-Chief himself, mentioned in section 181 of said chapter 33, 
which reads : — 

"The commander-in-chief may prescribe the terms and conditions 
under which, and the types of duty for which, officers and enlisted men 
shall be entitled to receive compensation, transportation, subsistence or 
other allowances and emoluments." 

The officer in question, as you inform me, was specifically ordered by 
the Commander-in-Chief, through his proper subordinate officers, to 



42 P.D. 12. 

perform individually the particular type of duty in which he was engaged 
at the time of his injury, and the Commander-in-Chief, in the special 
order, prescribed the terms and conditions under which such type of duty 
was to be performed. Such duty was one of the forms of "other duty 
under orders of the commander-in-chief" specifically referred to in G. L. 
(Ter. Ed.) c. 33, § 138 (d), wherein special provision is made for the rate 
of pay therefor, with the express condition that such rate of pay does 
not apply where, as in the instant case, "payment is made therefor from 
federal funds." 

It has long been the public policy of Massachusetts to award compensa- 
tion for injuries received in the line of duty to members of its Volunteer 
Militia, and it would indeed be a surprising thing had the Legislature 
manifested an intention to exclude from the benefits resulting from such a 
policy those members of the Militia who performed special duties in- 
dividually at the direct orders of the Commander-in-Chief. That it was 
not the intention of the General Court to work such an exclusion is mani- 
fest from the insertion of a reference to said section 181 in the text of said 
section 69. 

That no double payment for services rendered should unfairly result 
from the application of section 181 has been carefully guarded against 
by the Legislature in enacting the terms of said section 138 (d) above 
referred to. Inasmuch as the Federal government does not grant com- 
pensation for injuries to members of the National Guard under the cir- 
cumstances of the instant case, no double award for such injuries could 
result. 

Accordingly, I answer the question contained in your communication 
to the effect that a military board has authority to award compensation for 
injuries occurring to the designated officer, under the facts which you have 
disclosed to me, by reason of the inclusion in said section 69 of a reference 
to said section 181 rather than by its reference to said section 17. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Utilities — Telephone Locations — Interstate Business. 

A foreign telephone company may carry on intrastate business together 
with interstate business over locations granted to domestic companies. 

March 22, 1935. 

Hon. Henry C. Attwill, Chairman, Department of Public Utilities. 

Dear Sir: — You request an opinion "as to whether the carrying on 
of intrastate business, in connection with its interstate business, by the 
New England Telephone and Telegraph Company, over locations granted 
to domestic telephone and telegraph companies, is a violation of law 
within the purview of G. L. (Ter. Ed.) c. 159, § 39." 

The section referred to in your inquiry provides : — 

"If in the judgment of the department any common carrier violates'or 
neglects in any respect to comply with the provisions of any law, and after 
written notice by the department continues such violation or neglect, or 
neglects to make returns as required by law, or to amend the same when 
lawfully required so to do, the department shall forthwith present the 
facts to the attorney general for action." 



I 



P.D. 12. 43 

A telephone and telegraph company is a common carrier, and so within 
the sweep of this statute by virtue of the provisions of G. L. (Ter. Ed.) 
c. 159, § 12, cl. (d), and therefore, at least in so far as its domestic busi- 
ness is concerned, is subject to the supervision and control expressly 
conferred by the last-mentioned section. 

In the case of Mentzer v. New England Tel. & Tel. Co., 276 Mass. 478, 
483, the court said : — 

"The transmission of intelligence by electricity is a business of a public 
character, to be exercised under reasonable public regulation subject to 
the same general principles as govern transportation of goods or passengers 
by common carriers." 

Your inquiry was discussed in an opinion rendered by a former Attorney 
General in 1926 to the then Governor (VIII Op. Atty. Gen. 1), in which 
it was said that the State had "power" to exclude foreign corporations 
from the use of its public ways in "intrastate commerce," although the 
State had no power to interfere with the conduct of an interstate business 
by such a corporation. The fact that the same corporation is at the same 
time engaged in both interstate and an intrastate business will not pre- 
vent it from having those activities dealing entirely with the latter kind 
of business come within the supervision and regulation of local authorities. 
Barroios v. Farnum's Stage Lines, Inc., 254 Mass. 240; Interstate Busses 
Corp. V. Holyoke St. Ry. Co., 273 U. S. 45; Boston & Maine R.R. v. Arm- 
hurg, 285 U. S. 234. 

Such regulations, however, even if confined entirely to a domestic 
aspect of the corporate business, will not be sustained if they in fact result 
in placing an undue burden upon the interstate business of the corpora- 
tion. Judson Freight Forwarding Co. v. Commonwealth, 242 Mass. 47; 
Western Union Tel. Co. v. Foster, 247 U. S. 105. 

Whether the foreign and local business done by the New England 
Telephone and Telegraph Company of New York is so intrinsically con- 
nected that the validity of any order for the separation of one from the 
other would depend not only upon the nature of the order, but princi- 
pally upon its effect on the interstate business of the company. We have 
not sufficient facts to determine if such an order would result in a direct 
and material interference with the operation of its interstate business, 
and so we can only lay down the governing principle of law. 

It is clear that our statutes do not prohibit a foreign telephone company 
from doing business in this Commonwealth, as was pointed out with an 
ample citation of authorities in the previous opinion of my predecessor. 
While a domestic company engaged in furnishing telephone and telegraph 
service is not free to cease exercising its franchise for the benefit of the 
public so long as it retains its charter, yet there is nothing in our law that 
prevents such a domestic company from permitting the use of its facilities 
and equipment by another company for the operation of an interstate 
business, provided, of course, that the domestic company is not thereby 
prevented from doing the business for which it was chartered. 

The locations granted to the domestic company were not a mere per- 
sonal right which would prohibit the company from sharing in the use 
of such locations with another company that was engaged in an inter- 
state business. The assignment of such locations has been at least im- 
pliedly recognized by our court. Postal Telegraph Cable Co. v. Chicopee, 
207 Mass. 341, 343. 



44 P.D. 12. 

There is nothing in our statutes that prohibits a foreign company from 
doing interstate business in this State. It is not unlawful for such a cor- 
poration to engage in intrastate telephone and telegraph business within 
the Commonwealth. Ellis v. American Telegraph Co., 13 Allen, 226, 231. 
I see no reason why a foreign corporation has not the same right to make 
permissive use of a location granted to a domestic corporation that another 
domestic corporation or a foreign corporation engaged in interstate com- 
merce has. 

I am therefore of the opinion, on the facts set forth in your letter, that 
the carrying on of intrastate business together with an interstate business 
by a foreign corporation over locations granted to domestic companies 
constitutes no violation of G. L. (Ter. Ed.) c. 159, § 39. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Hunting and Fishing — Public Ways — Posted Land. 

March 23, 1935. 
Hon. Samuel A. York, Commissioner of Conservation. 

Dear Sir: — You have asked my opinion ''as to whether or not the 
officers of the Division of Fisheries and Game should proceed to stop hunt- 
ing or fishing" within the boundaries of public ways where the adjoining 
land is posted. 

I am not aware of any statute which specifically forbids hunting or fish- 
ing in open seasons within the boundaries of public ways as such, except 
as G. L. (Ter. Ed.) c. 131, § 101, as amended, forbids the discharge of any 
firearm upon "any state or paved highway" for the purpose of hunting, 
which offense the said Division may prosecute. 

Inasmuch as in most public ways an easement of travel has alone been 
taken by the condemning authorities, a member of the public has no right, 
where this is the case, as against the owner of the fee, to use the way for 
hunting or fishing even within its boundaries. Such use by a member of 
the public, however, gives rise only to a trespass as against such owner, for 
which the latter may enforce civil remedies. 

Land in which an easement of travel has been taken and which has been 
laid out and used by the public as a way cannot be said to be "private 
land," within the meaning of G. L. (Ter. Ed.) c. 133, § 123, which makes 
hunting and fishing on private land which has been posted a criminal 
offense ; and if the hunting or fishing is entirely confined within the bound- 
aries of the public way, no criminal offense is committed. This does not 
mean, however, that a person may stand within the boundaries of the 
pubhc way and shoot at game which is upon adjoining posted land or, so 
standing, cast a line into waters on such posted land or running underneath 
a bridge in such way for the purpose of taking fish. To do so is not to con- 
fine the acts of hunting or fishing entirely within the boundaries of the pub- 
lic way, but is as much fishing or hunting on private posted land as if the 
hunter or fisher had himself actually walked into or upon such private land, 
and constitutes an offense under said G. L. (Ter. Ed.) c. 131, § 123, as 
amended, which the said Division may properly prosecute. 

Even if hunting or fishing be entirely confined within the boundaries of 
a pubhc way, the hunting of certain animals and birds is forbidden at any 
time, anywhere, by various statutes; and as to the hunting of such animals 



P.D. 12. 45 

and birds or as to hunting and fishing out of season or by unlawful means 
or in any unlawful manner, the said Division maj^ properly prosecute. 

The foregoing considerations will, I think, entirely answer your ques- 
tions as to what the said Division should do relative to stopping hunting 
and fishing on public ways. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Judicial Functions — Impartiality — Member of a Quasi-judicial Board. 

It is not in accordance with concepts of right and justice that a member 
of a board which exercises judicial functions should hear and deter- 
mine a cause in which a member of his own law firm appears as counsel 
for one of the litigants. 

March 25, 1935. 

His Excellency James M. Curley, Governor of the Commonwealth. 

Sir: — You state that you are "desirous of ascertaining the propriety 
of a member of the State Board of Tax Appeals sitting on a case where a 
member of his own law firm appears in behalf of an applicant." 

The framers of our Constitution evidently realized that every citizen 
had a right to be protected in the enjo^nnent of his life, Hberty and property 
and to secure a remedy under the law for any injuries or wrongs which he 
might receive in his property, person or character, and they appreciated 
that the establishment of such rights would be of no avail unless they 
could be enforced and safeguarded, and, to that end, they provided in the 
Bill of Rights (art. XXIX) that — 

"It is essential to the preservation of the rights of every individual, his 
life, liberty, property, and character, that there be an impartial inter- 
pretation of the laws, and administration of justice. It is the right of 
every citizen to be tried by judges as free, impartial, and independent as 
the lot of humanity will admit. ..." 

No one ought to be permitted to perform a judicial function "whose 
character is not unblemished and above reproach. His mind ought always 
to be open to the truth and susceptible to every right influence flowing 
from the evidence" (Dittemore v. Dickey, 249 Mass. 95, 99, 100), and those 
charged with the performance of judicial duties "should be deeph- solici- 
tous not only to be impartial but to avoid every appearance of bias. They 
should be clear and fair in all their motives, and do nothing to give ground 
for inferences that they are not proceeding with a just regard for all the 
rights involved. A high standard of integrity and propriety in all their 
conduct is essential to performance of the trust reposed in them." A^a- 
tional Fire Ins. Co. v. Goggin, 267 Alass. 430, 436, 437. 

There is, however, nothing in our law expressly prohibiting a member 
of a law firm from presiding at a hearing conducted by another member 
of the same firm. Yet, even if the presiding officer conducts himself fairly 
and impartially and arrives at a right decision, the judicial system ought 
not to be impaired by a tribunal attempting to decide a controversy where 
the judge and one of the counsel are associates in the same legal firm. 
Such conduct is open to just criticism. It is subversive of all fundamental 
concepts of right and justice. It tends to bring the judicial system into 
reproach and disrepute, and warrants strong condemnation. The fact 



46 - P.D. 12. 

that a just decision might have been obtained is no justification for a 
procedure which is highly improper and should be no longer tolerated. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Banking — Co-operative Bank — Federal Savings and Loan Association — 
' Constitutional Law. 

A State co-operative bank may convert itself into a Federal savings and 
loan association, under Federal law, without any enabling State statute. 

March 27, 1935. 
Hon. Henry H. Pierce, Commissioner of Banks. 

Dear Sir : — You request my opinion as to whether a co-operative 
bank, organized under the laws of this Commonwealth, has the right to 
convert itself into a Federal savings and loan association without express 
statutory power having been granted by the Legislature of this Com- 
monwealth. 

The Federal Home Loan Bank Act was enacted by Congress on July 
22, 1932. This act provided for the establishment of District Federal 
Home Loan banks. It provided (§§4 and 24) that any building and loan 
association, savings and loan association, co-operative bank, homestead 
association, insurance company, or savings bank, meeting the qualifi- 
cations prescribed in the act, might become a member of the Federal 
Home Loan bank for its district, through subscription to stock m such 
Home Loan bank; and as a member might, under the terms and condi- 
tions stated, obtain advances from such Home Loan bank (§ 10). 

By a statute of this Commonwealth (St. 1933, c. 46, § 2; G. L., c. 170, 
§ 56, as enacted by St. 1933, c. 144) co-operative banks were authorized 
to become members of the Federal Home Loan Bank for the District of 
New England, and to invest in the amount of stock in such Federal bank 
necessary for membership. 

By Act of Congress, June 13, 1933, the Federal Home Loan Bank 
Board was authorized, by section 5 (a), to incorporate Federal savings 
and loan associations, in order "to provide local mutual thrift institutions 
in which people may invest their funds and in order to provide for the 
financing of homes." Under section 5 (i) of the act. Congress authorized 
a member of a Federal Home Loan bank to convert itself into a Federal 
savings and loan association. This section read as follows: 

" (i) Any member of a Federal Home Loan Bank may convert itself 
into a Federal Savings and Loan Association under this Act upon a vote 
of its stockholders as provided by the law under which it operates; but 
such conversion shall be subject to such rules and regulations as the 
Board may prescribe, and thereafter the converted association shall be 
entitled to all the benefits of this section and shall be subject to examina- 
tion and regulation to the same extent as other associations incorporated 
pursuant to this Act." 

By amendment, April 27, 1934, section 5 (i) was made to read as 
follows : — 

"Section 5 (i). Any member of the Federal Home Loan Bank may 
convert itself into a Federal Savings and Loan Association under this Act 
upon the vote of 51 per centum or more of the votes cast at a legal meet- 



P.D. 12. 47 

ing called to consider such action; but such conversion shall be subject 
to such rules and regulations as the Board may prescribe, and thereafter 
the converted association shall be entitled to all the benefits of this Act 
and shall be subject to examination and regulation to the same extent 
as other associations incorporated pursuant to this Act." 

If Congress has the implied authority to provide for the incorporation 
of Federal savings and loan associations in order to provide "local mutual 
thrift institutions," as set forth in the Act of June 13, 1933, section 5(a), 
an authority similar to the power which Congress possesses to incorporate 
national banks {McCulloch v. Maryland, 4 Wheat. 316) — which must be 
upon the theory that the functions performed by such associations as 
instruments of the Federal government are so vital as to justify Congress 
in regulating the existence of such associations completely and prevent- 
ing competition therewith — the settled doctrine of the Massachusetts 
courts, which permits State banks to convert themselves into national 
banks b}^ authority of Congress alone without enabling State legislation, 
is applicable to the present situation, and the conversion of a co-operative 
bank which is a member of a Home Loan bank into a Federal savings 
and loan association will be considered lawful by our courts. Worcester 
County National Bank, Petitioner, 263 Mass. 444, 450; 279 U. S. 347. 

In the absence of authoritative judicial decision to such effect, I cannot 
say that the Federal statute creating Federal savings and loan associa- 
tions is unconstitutional, as an act outside the implied powers of Con- 
gress. If the act be constitutional — and I must give weight to a pre- 
sumption in favor thereof — it follows that a co-operative bank may 
become a Federal savings and loan association under authority of Con- 
gress, and, accordingly, I answer your question in the affirmative. 

I am not unmindful of the fact that the Supreme Court of Wisconsin 
in State v. Hopkins Street Buildmg & Loan Assn., 257 N. W. 684 (Decem- 
ber 11, 1934), held that said section 5 (i) of the Act of Congress, as amended 
April 27, 1934, did not authorize a building and loan association incor- 
porated in Wisconsin to convert itself into a Federal savings and loan 
association without enabling State legislation. In the opinion in said 
case, however, the Supreme Court of Wisconsin specifically repudiated the 
doctrine heretofore enunciated by the Supreme Judicial Court of Massa- 
chusetts, already pointed out herein, that a State bank could change its 
organization to that of a Federal bank upon Federal authority alone, and 
held that the law of Wisconsin upon such point was estabhshed as being 
exactly contrary to that of Massachusetts. This being so, the Wisconsin 
court would of necessity arrive at a different result in passing upon the 
question at issue than would a court in this Commonwealth. 

I prefer, however, to rest my opinion upon the last-mentioned decision 
of our own Supreme Judicial Court, permitting a State bank to convert 
itself into a national bank without any specific legislative authority of the 
State, and feel that the conclusion which is herein reached is but a logical 
extension of the governing principles therein enunciated, applied to our 
co-operative bank system. 

Very truly yours, 

Paul A. Dever, Attorney General. 



48 P.D. 12. 

Banking — Home Owners' Loan Corporation Bonds — Investment — The 
Co-operative Central Bank.' 

The bonds of the Home Owners' Loan Corporation are "obhgations of the 
United States" in which The Co-operative Central Bank may invest. 

March 27, 1935. 
Hon. Henry H. Pierce, Commissioner of Banks. 

Dear Sir: — You have asked my opinion as to whether the bonds of 
the Home Owners' Loan Corporation are "obhgations of the United 
States," within the meaning of the quoted words as they are employed 
in St. 1932, c. 45, § 7, with relation to The Co-operative Central Bank, 
established by said chapter, said section 7 reading, in its apphcable part, 
as follows : — 

"The resources of the central bank shall be invested only in obligations 
of the United States and of the commonwealth, or in loans to member 
banks under conditions herein provided." 

The bonds of the Home Owners' Loan Corporation, as to which you 
inquire, are issued by said corporation under the direct authority of an 
Act of Congress (Home Owners' Loan Act of 1933, as amended), which 
provides for the creation of such corporation [section 4 (a)] as "an instru- 
mentality of the United States," and for the issue of such bonds by the 
corporation, with the approval of the Secretary of the Treasury. The 
Act of Congress further provides [section 4 (c)] that: — 

"Such bonds shall be fully and unconditionally guaranteed both as to 
interest and principal by the United States, and such guaranty shall be 
expressed on the face thereof, and such bonds shall be lawful investments, 
and may be accepted as security, for all fiduciary, trust, and public funds, 
the investment or deposit of which shall be under the authority or control 
of the United States ..." 

The members of the Federal Home Loan Bank Board are directors of 
such corporation, and its capital stock is subscribed for under the terms 
of the Act by the Secretary of the Treasury on behalf of the United States. 
The bonds in question are exempted by the terms of the Act from taxation 
by the States. It may well be that the relation of the Home Owners' 
Loan Corporation as an instrumentality of the Federal government to 
such government itself is so close that the bonds are, in whatever form 
issued, to be regarded solely as obligations of the United States. In the 
absence of authoritative judicial decision upon the point, however, I do 
not pass upon this point nor base my opinion upon any assumption that 
such is the law. 

Even though the bonds be regarded as direct obligations of the corpora- 
tion, nevertheless they are contingent obligations of the United States, 
the nature and terms of which are particularly outlined in said section 4 
(c) of the Act in the following words : — 

"In the event that the Corporation shall be unable to pay upon demand, 
when due, the principal of, or interest on, such bonds, the Secretary of the 
Treasury shall pay to the holder the amount thereof which is hereby 
authorized to be appropriated out of any moneys in the Treasury not 
otherwise appropriated, . . ." 



P.D. 12. 49 

The purpose of the Legislature in enacting the quoted provisions of 
section 7 of said chapter 45 was to provide for the safety of the investments 
of the central bank. Bonds of an instrumentahtj^ of the United States 
containing provisions for the direct payment of the principal and interest 
thereon to the holder, upon the inability of the corporation to pay, by the 
United States itself, without the necessity for further appropriation or 
grant of authority, would appear to be on a parity, as regards safety of 
investment, with securities directly issued by the United States. Such 
bonds so issued, with the exact terms of the liability which the United 
States itself agrees to assume expressed on their face, are obligations of 
the United States, though the United States may never become liable to 
discharge its obligation to the holders. 

I am of the opinion that this form of obligation of the United States 
as represented by the bonds of the said corporation, itself an instrumen- 
tality of the United States, is such as to bring the said bonds within the 
meaning of said St. 1932, c. 45, § 7, as "obligations of the United States" 
in which The Co-operative Central Bank may properly invest. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Old Age Assistance — Institutional Residents. 

Mass. Const. Amend. XLVI does not prohibit legislation enabling old 
age assistance to be paid to residents of institutions which them- 
selves may not be supported by public funds. 

April 1, 1935. 

Hon. James G. Moran, President of the Senate. 

Dear Sir : — The Clerk of the Senate has transmitted to me the fol- 
lowing order: — 

"ORDERED, That the Senate request the opinion of the Attorney Gen- 
eral as to whether the provisions of law relative to old age assistance 
may constitutionally be amended in such manner as to authorize the 
granting of such assistance to aged inmates in certain institutions that 
may not constitutionally receive financial aid from the public treasury." 

There has not been laid before me any specific measure which it is 
proposed to enact to carry out the general legislative purpose suggested 
in the foregoing order. 

The existing legislation (G. L. [Ter. Ed.] c. 118 A) relative to old age 
assistance does not, in my opinion, forbid giving necessary aid under all 
circumstances to aged persons themselves, even if they happen to reside 
in institutions for whose support public moneys may not be appropriated 
under Mass. Const. Amend. XLVI, irrespective of the fact that said 
statute contains the words: "Such assistance shall, wherever practicable, 
be given to the aged person in his own home or in lodgings or in a board- 
ing home, and it shall be sufficient to provide such suitable and dignified 
care." 

In my opinion, new legislation, if it should be thought necessary, clari- 
fying the existing statutory law for the purpose of making evident beyond 
all doubt the legislative intent in this respect would not be unconstitu- 
tional if drawn in such form as to make plain that assistance is to be 
rendered only to individuals as such, irrespective of their place of abode. 



50 P.D. 12. 

The justification, however, for the validity of such legislation rests 
entirely and exclusively upon the direct aid immediately furnished to the 
individual recipient, to be used by him for his sole and personal benefit. 
Any systematic distribution of relief which has for its object or effect the 
aid of any of the institutions mentioned in the amendment must be con- 
sidered as contrary to the Constitution and as utterly illegal. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Member of Local Licensing Board — Engaging in I 

Business. 

April 1, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You state that a member of a local licensing board 
owns a controlling interest in a newspaper publishing corporation which 
publishes liquor advertisements, and that in another instance a member 
holds a minority interest in such a corporation and is also said to solicit 
such advertisements. You request my opinion as to whether such persons 
are acting in violation of the provisions of G. L. (Ter. Ed.) c. 183, § 4 
(St. 1933, c. 376), which provides that a member of a local licensing 
board "shall not be engaged, directly or indirectly, in the manufacture 
or sale of alcohoHc beverages," and that "if any member of said board 
engages directly or indirectly in such manufacture or sale, his office shall 
immediately become vacant." 

Evidently neither publishing corporation was formed for the purpose 
of enabling the license commissioner to circumvent the provisions of the 
cited section. In any event, there is nothing in your letter to indicate 
that either or both of these corporations are really individuals, who happen 
to be members of a licensing board, doing business in corporate form, or 
that the corporations are merely cloaks to conceal conduct which other- 
wise might come within the interdiction of the sections now in question. 
The publication of liquor advertisements was incidental to the ordinary 
and usual conduct of the publishing business, and such pubhcations 
give rise to nothing of a sinister or suspicious nature. There is always 
.a presumption of fair dealing, and there is nothing set forth in your 
communication that will warrant one in inferring that the pubhcations 
were not made in good faith. 

The mere publication by a newspaper of advertisements concerning 
sales of Hquor by retail concerns, in the ordinary course of business, and 
in which concerns the advertising company has no proprietary interest, 
does not make a stockholder in the latter compa.ny a participant in any 
sales that may result from such advertisements, even though, theoretically 
at least, the stockholder may share in increased profits due to the insertion 
of such advertisements in newspapers in which he has a beneficial interest 
as stockholder. Neither do we believe that the publication of such adver- 
tisements could in any way be held to constitute the publishing company 
as engaging, either directly or indirectly, in the sale or manufacture of 
alcohohc beverages; much less could it be said that a stockholder in such a 
publishing company should be held to be so engaged simply on account of 
his relation as a stockholder in the publishing company. In other words, 
there must be a closer approximation to the business whose goods are 
advertised in order to bring a stockholder in the company so advertising 



P.D. 12. 51 

these goods within the sweep of the statute. Commonwealth v. Peaslee, 
177 Mass. 267; Begley v. O'Neill, 281 Mass. 164. 

The question whether the solicitation of advertisements or the other 
acts referred to would constitute "cause" for removal by the mayor under 
G. L. (Ter. Ed.) c. 138, § 5, or other statutory provisions, is not here 
involved. The jurisdiction of your Commission under section lOB, to 
declare vacant the office of a member of the licensing board in case the 
local authority fails to act, e.xists only if such member "engages directly 
or indirectly in the manufacture or sale of alcoholic beverages." 

I am therefore of the opinion that the matters contained in your com- 
munication do not show a violation of any of the sections therein enu- 
merated. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Pharmacist — Employee. 

A sale of alcohol may lawfully be made by an unregistered employee of a 
registered pharmacist, in the absence of the pharmacist, if the latter 
has authority to sell. 

April 5, 1935. 

Mr. Michael Zack, Director of Registration. 

Dear Sir: — You request my opinion as to whether a sale of alcohol 
may be lawfully made by an unregistered employee of a registered phar- 
macist who has authority to sell alcohol under G. L. (Ter. Ed.) c. 138, 
§ 29, as amended, at any time when the employer is not present in the store. 

There is nothing in G. L. (Ter. Ed.) c. 138, which prohibits a person, who 
is authorized thereunder to sell, from making a sale by and through an 
employee at his place of business at a time when he is not personally present. 
The question is not affected by G. L. (Ter. Ed.) c. 112, § 30, providing that 
no person not registered as a pharmacist shall sell for medicinal purposes 
drugs, medicines, chemicals or poisons, and which further provides that 
sales of drugs, medicines, chemicals or poisons may be made by appren- 
tices or assistants if a registered pharmacist is "in charge of the store and 
present therein." This section refers only to the sale of those things 
for which authority may be obtained by registration under chapter 112. 
Alcohol is not one of them. The sale of alcohol is regulated by chapter 138. 

Accordingly, I answer your question in the affirmative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Flag — Placing Words on the Flag — Veterans' Organizations. 

April 6, 1935. 
His Honor Joseph L. Hurley, Lieutenant Governor. 

Dear Sir: — You have requested my opinion relative to the placing of 
certain words upon flags of the American Legion. 

I am of the opinion that the words used in G. L. (Ter. Ed.) c. 264, § 5, 
"but a flag belonging ... to a post or department of The American 
Legion," which, with the other words employed in connection therewith, 
authorize the placing of certain words upon such a flag, are not to be con- 
strued so narrowly as to have application only to the colors of such a post 



52 P.D. 12. 

or department, but are equally applicable to any flag owned by such an 
organization and to flags of such organization used to decorate graves. 

The purpose of the statute is, as has been pointed out in an opinion of 
one of my predecessors in office (IV Op. Atty. Gen. 470), "to prohibit the 
misuse of the national and state flags. It should be interpreted in the light 
of this purpose with a view to increase respect for our flags, and, if possible, 
not in such a manner as to restrict the proper use of the flags or to reduce 
the statute to an absurdity. It apparently seeks to prohibit . . . insults 
to the flags; . . . their use as part of any form of advertising, ..." 

The exception to the general prohibition of the statute with regard to 
placing words upon flags is broad enough to justify the use of all the author- 
ized words upon the designated kinds of flags large enough to receive them, 
but does not preclude the use of some only of the authorized words upon 
smaller flags belonging to the designated organizations. 

Very truly yours, 

Paul A. Dever, Attorney General. 



St. 1935, c. 90, applies to cities as well as to towns, and to clerical employees 

as well as to laborers. 



Civil Service — Temporary Emergency Unemployment — Cities and Towns. 

clerical employe^ 

April 13, 1935. 
Hon. James M. Hurley, Commissioner of Civil Service. 

Dear Sir: — You request my opinion (1) as to whether St. 1935, c. 90, 
applies to cities as well as to towns; and (2) whether said act permits the 
employment of clerks, stenographers, etc., as well as persons "classified in 
the labor service." 

The act reads as follows: 

"An Act relative to Temporary Emergency Funds in Towns. 

During the calendar years nineteen hundred and thirty-five and nineteen 
hundred and thirty-six any town may by two thirds vote appropriate 
money to be set apart and administered as a general unemployment relief 
fund, for expenditure by or under the direction of the boards and officers 
in charge of town departments, subject to the approval of a board of ad- 
ministration consisting of such town officers ex officiis as the town shall by 
its vote determine, for the construction, improvement, or repair of public 
ways, public parks, sewerage and water supply systems, municipal build- 
ings and other municipal works or undertakings, wherebj^ employment 
may be afforded citizens of the town who shall be determined, in such 
manner as the town shall by its vote, prescribe to be in need thereof, or for 
the purchase or hire of materials, supplies and equipment and the employ- 
ment of labor for the furtherance of, or as the contribution of the town to, 
any federal unemployment relief project undertaken or to be undertaken 
within the town. 

In any town which has estabUshed a reserve fund under the provisions of 
section six of chapter forty of the General Laws, the finance or appropriation 
committee, if the town has such a committee, or, if it has not such a com- 
mittee, the selectmen may make transfers therefrom to an appropriation 
made for the aforesaid purpose if the unexpended balance thereof, with 
other available funds, is insufficient therefor." 



P.D. 12. 53 

G. L. (Ter. Ed.) c. 4, § 7, provides: — 

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

Clause Thirty-fourth of said section 7 provides: — 

"'Town', when applied to towns or officers or employees thereof, shall 
include city." 

G. L. (Ter. Ed.) c. 40, § 1, provides in part: — 

"Except as otherwise expressly provided, cities shall have all the powers 
of towns and such additional powers as are granted to them by their charter 
or by general or special law, and all laws relative to towns shall applv to 
cities." 

G. L. (Ter. Ed.) c. 39, § 1, provides in part: — 

"Except as otherwise provided by law, city councils shall have the powers 
of towns; boards of aldermen shall have the powers, perform the duties 
and be subject to the Uabilities of selectmen, ..." 

The purpose of St. 1935, c. 90, would seem to apply to cities at least as 
much as to towns. It cannot be said that an intention that it should not 
apply to cities "clearly appears" (G. L. [Ter. Ed.] c. 4, § 7, cl. Thirty- 
fourth) ; and it is, therefore, my opinion that the act does apply to cities. 
It is immaterial that the Civil Service Act (G. L. [Ter. Ed.] c. 31) provides 
(section 1) that "town," as therein used, shall not include city. The act 
here in question is no part of G. L. (Ter. Ed.) c. 31, nor is its primary pur- 
pose to affect in any way the laws of civil service. 

As to your second question. The first part of paragraph 1 of the act 
refers only to "employment" in connection with the enterprises therein 
specified. In my opinion, the character of the employment is immaterial, 
provided the work done by the employee is connected with, and essential 
to, the enterprises specified. The last part of the first paragraph, relating 
to the furtherance of Federal unemployment relief projects, refers to the 
"employment of labor." Although the terms "labor" and "laborers," 
under civil service classification and under some statutes, would not include 
clerks or stenographers (White's case, 226 Mass. 517), yet it is my opinion, 
in view of the purposes of the statute here in question, that the words "em- 
ployment of labor" are not here used in any restricted sense, and that they 
may include the employment of clerks and stenographers if such employ- 
ment is necessary for the performance of the work referred to. See Com- 
monwealth V. John T. Connor Co., 222 Mass. 299. 

Very truly yours, 

Paul A. Dever, Attorney General, 

State Milk Control Board — Milk — Ice Cream — Contracts. 

April 13, 1935. 

Hon. James O'Brien, Chairman, State Milk Control Board. 

Dear Sir : — The administrator of the Milk Control Board has re- 
quested the opinion of the Attorney General upon two questions of law. 
I am assuming, for the purpose of this letter, that the request for my 
opinion is in fact made by your Board, though the request does not 
indicate that such is the case. A long Hue of practice followed by my 



54 P.D. 12. 

predecessors in office for many years, and by myself, requires that re- 
quests for official opinions on questions of law shall be signed by the 
chairman of the board or commission which propounds them. The 
Attorney General may not be required to give opinions on such questions 
to individual members of boards or commissions or to their appointees. 

I. You ask my opinion with relation to St. 1934, c. 376, as follows: — 

"Your opinion is respectfully requested as to whether or not this act 
applies to milk sold to a milk dealer and subsequently used by him, or 
any other dealer, in the manufacture of ice cream, or in the manufacture 
of cream to be ultimately used in the manufacture of ice cream." 

It is specifically stated in section 20 of said chapter 376 that the "act 
shall not apply to cream to be used for manufacturing purposes, includ- 
ing the manufacture of . . . ice cream ..." 

If, at any given time, in the course of its passage from its source to its 
ultimate consumer it can be said of any particular quantity of milk, as 
defined in section 3 of said chapter 376, that as a matter of fact it is 
"cream to be used" in "the manufacture of ice cream," beginning at 
such time the provisions of the statute will be inapplicable to it. Irre- 
spective of whose hands the milk or cream may be in at such given time, 
the question of fact is determinable by a consideration of the true intent 
of the then owner, taken in connection with all the surrounding cir- 
cumstances. 

II. You have also asked my opinion as to whether contracts be- 
tween milk dealers and their customers, covering prices of milk and 
cream, which contracts were made prior to the effective date of St. 1934, 
c. 376, are suspended when their provisions are contrary to the minimum 
schedule of resale prices "recognized by the Milk Control Board" after 
said chapter 376 became operative. 

The Milk Control Board is given authority by said chapter 376 to 
establish minimum prices for the sale and resale of milk, and sale or 
resale below such prices is forbidden. If such prohibition is to be taken 
as applicable to milk sold under existing contracts entered into prior to 
the effective date of said chapter 376, the obligation of such contracts 
is certainly impaired by this legislation. Nevertheless, "all contracts are 
to be taken as made subject to modification or impairment incidental to 
the legitimate exercise of the police power of the state." 

The language of section 1 of said chapter 376 sets forth the conditions 
which, in the opinion of the Legislature, made its enactment necessary 
for the promotion of the general welfare and the public health. As inci- 
dental to the accomplishment of these purposes, minimum price charges 
were established and made effective by appropriate provisions, and are 
as applicable to pre-existing contracts as to future ones. In view of the 
solemn declarations of the Legislature as to the necessity of this legisla- 
tion for the designated purposes under "emergency conditions," in the 
absence of authoritative or judicial pronouncement adverse to the valid- 
ity of the terms of the instant statute I cannot say that its provisions 
are not a valid exercise of the police power, and, accordingly, I must 
conclude that the terms of contracts executed prior to the effective date 
of said chapter 376, in so far as they are in conflict with minimum price 
provisions created by virtue of the authority of this statute, may not 
now be considered enforceable. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 55 

Sentence — State Farm — Massachusetts Reformatory. 

One under sentence to the State Farm or the Massachusetts Reformatory, 
for desertion, may, under an indeterminate sentence, be held for more 
than a year. 

April 16, 1935. 

Hon. Richard Olney, Chairman, Board of Parole. 

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

"The Board of Parole would appreciate an opinion in regard to the 
following: — 

G. L. (Ter. Ed.) c. 279, § 36, provides: 'In imposing a sentence of im- 
prisonment in the state farm, the court or trial justice shall not fix or limit 
the duration thereof. Whoever is sentenced to the state farm for drunken- 
ness may be there held in custody for not more than one j^ear, and if so sen- 
tenced for any other offence may be there held in custody for not more 
than two years.' 

G. L. (Ter. Ed.) c. 273, § 1, limits the sentence for nonsupport to a 
'fine of not more than two hundred dollars or by imprisonment for not 
more than one year, or both.' 

(a) Can a man sentenced to the State Farm for nonsupport be held in 
custody longer than one year, not including time to be served for fine? 

(6) Can a man sentenced to the Massachusetts Reformatory or any 
other institution for nonsupport be there held in custody longer than one 
year, not including time to be served for fine?" 

In addition to the provisions of G. L. (Ter. Ed.) c. 279, § 36, which 
you have set forth as above, with relation to sentences to the Massachu- 
setts Reformatory, sections 32 and 33 of said chapter 279 read as follows : — 

"Section 32. The court imposing a sentence of imprisonment in the 
Massachusetts reformatory shall not fix the term thereof unless it exceeds 
five years, but shall merely impose a sentence of imprisonment therein; 
but prisoners may be received and held therein who have been sentenced 
thereto by a court of the United States for a fixed or limited term. 

Section 33. Whoever is sentenced to the Massachusetts reformatory 
for larceny or for any felony may be held therein for not more than five 
years unless sentenced for a longer term, in which case he may be held 
therein for such longer term; if committed to said reformatory as a delin- 
quent child he may be held therein for not more than two years; if sen- 
tenced to said reformatory for drunkenness he may be held therein for 
not more than one year; if sentenced to said reformatory for any other 
offence he may be held therein for not more than two years." 

Although G. L. (Ter. Ed.) c. 273, § 1, as above noted, provides for a 
possible specific sentence by a judge, after a conviction for nonsupport, 
of a term of imprisonment limited to one year, nevertheless, if the judge, 
instead of awarding a sentence for a fixed term of years, desires to avail 
himself of the indeterminate sentence, so called, he may sentence the de- 
fendant under either said section 32 or section 36, in which case the de- 
fendant may be held at either institution to which he may have been so 
sentenced for not more than two years. 

That the apparent inconsistencies in the General Laws, in relation to 
prescribed sentences for a specific term and indeterminate sentences, "are 



56 P.D. 12. 

not," in reality, "contradictory and incompatible, but constitute a con- 
sistent frame of law" was pointed out by the Supreme Judicial Court in 
Piatt V. Commonivealth, 256 Mass. 539, 543, and the principles governing 
the opinion which I have expressed were enunciated and the history of 
the applicable legislation was discussed at length in VIII Op. Atty. Gen. 
596. 

I answer the questions (a) and (h) in your communication in the affirma- 
tive. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Common Victualler — License. 

April 25, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You state that a certain inn holding a common vic- 
tualler's hcense, but holding no license for the sale of alcoholic beverages, 
inserts in advertisements of dinners served by it the statement, ''You 
may bring your own Hquor," and permits persons dining at the inn to 
serve themselves with liquor which they have brought there. You re- 
quest my opinion as to whether the local licensing board, which has granted 
the victualler's license, has power to revoke that license if the inn, after 
notice from such board to discontinue, persists in the practice of adver- 
tising as stated or in permitting the drinking of liquor as stated. 

G. L. (Ter. Ed.) c. 140, § 9, provides in part: — 

"If a licensee at any time conducts his licensed business in an improper 
manner, the licensing authorities, after notice to the licensee and reason- 
able opportunity for a hearing, may upon satisfactory proof thereof sus- 
pend or revoke his license." 

Section 2 of this chapter, which provides for the granting of licenses 
(which licenses expire on December thirty-first of each year, St. 1934, 
c. 171, § 1), also provides that the licensing authorities shall not be required 
to grant a license "if, in their opinion, the public good does not require it." 

The determination of the question of whether the holder of a common 
victualler's license is conducting his business "in an improper manner" 
is largely a question of fact, to be determined by the licensing authorities 
in each case, after consideration of all the facts bearing upon the question. 
I cannot pass upon this question of fact. It is, however, my opinion that 
if the licensing authorities in the case referred to by j^ou should determine, 
after hearing, that there were circumstances making it improper or against 
the public good for a common victualler to invite or permit the public to 
drink alcoholic beverages upon the premises covered by the license, such 
a finding would be sustained. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 57 

Civil Service — Disabled Veteran — Proofs of Disability. 

A disabled veteran may present proof of his disability even after he has 
passed examinations or been classified in the public service, and so 
become entitled to the statutory preference. 

April 29, 1935. 

Hon. James M. Hurley, Commissioner of Civil Service. 

Dear Sir: — You have advised me that, under the practice of your 
department, veterans of two classes who were in fact disabled and might, 
I assume, have fulfilled all the necessary requirements of G. L. (Ter. Ed.) 
c. 31, § 23, to establish their disability for purposes of preference in the 
civil service, have not been allowed to file claims for "disabled veterans' 
preference," and that your department has refused to enter such veterans 
on your records as "disabled veterans." 

The two classes to whom you refer are, as you state: — 

"1. Those persons who were permanent employees prior to the World 
War, obtained a leave of absence from their positions to participate in 
the World War, received ratings by the United States Government as dis- 
abled veterans, and were subsequently reinstated to their former positions. 

2. Persons rated as disabled veterans by the United States Government 
and in the employ of a town which, since the passage of G. L. (Ter. Ed.) 
c. 31, § 23, has accepted the provisions of the Civil Service Law." 

I gather from your letter that the refusal of your department extended 
to a declination of the right to present the evidence necessary under said 
section to establish the status of a "disabled veteran," and that your de- 
partment was led to adopt such a course by reason of a conclusion of law 
that, because the veterans in the two classes mentioned had not had oc- 
casion to "pass examinations" since their employment after the World 
War, they could not, irrespective of what might be the facts, be regarded 
or classified by vour department as "disabled veterans." 

The first portion of G. L. (Ter. Ed.) c. 31, § 23, reads: — 

"The names of veterans who pass examinations for appointment to any 
position classified under the civil service shall be placed upon the eligible 
lists in the order of their respective standing above the names of all other 
applicants, except that any such veterans who are disabled . . . shall be 
placed ahead of all other veterans on such eligible lists . . ." 

The section contains detailed requirements as to the proof of disability 
which must be presented by veterans before they can be treated as "dis- 
abled veterans" and entitled to the terms of the sections peculiarly favor- 
able to them, and it has been held in McCabe v. Judge of the Distinct Court, 
277 Mass. 55, that until such proof had actually been submitted to your 
department a veteran was not entitled to the preference of a disabled 
veteran. The court, however, did not say that such a veteran might not 
present such proof and be so classified at any time after his return from 
service and after the act became effective. 

Alerel}^ because section 23 begins with the words "The names of vet- 
erans W'ho pass examinations," does not indicate an intent by the Legisla- 
ture that veterans who had already passed examinations and were in 
pubHc service when section 23 became effective as to them might not 
present their claims and proofs and be thereafter classified as "disabled 
veterans." 



58 P.D. 12. 

The words "veterans who pass examinations" were merely intended 
to identify those veterans who by reason of successful examinations be- 
came entitled to the benefits of the Civil Service Act. The words are 
purely descriptive of a class, and have no special relation to those who 
pass in the future as distinguished from those who have successfully joined 
the same class in the past. The words were so used to describe veterans 
under the civil service system in the prior statutes, the last of which, 
Gen. St. 1919, c. 150, § 2, by amendment in St. 1922, c. 463, was altered 
to provide the exception in favor of disabled veterans as it stands now in 
the statute. 

It follows that all present employees now classified as veterans by rea- 
son of their service and because they gained appointments under the 
civil service by virtue of some examinations of the civil service system 
should be afforded an opportunity to claim and file proof of such disability 
as will entitle them to be classified as "disabled veterans" under said 
section 23, and, having done so, they should be so classified by your de- 
partment. They should not be deprived of their opportunity to secure 
classification which the court has said is essential to their receiving the 
intended preferential treatment. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Alcoholic Beverages Control Commission — Local Licensing Board — 

License. 

Prior to the actual issuance of a license it may be canceled, even after a 
vote granting it, by another vote of the same board. 

May 1, 1935. 

Alcoholic Beverages Control Commission. 

Gentlemen: — You state the following facts: — 

On January 25, 1935, the board of selectmen of the town of Salisbury, 
the licensing authorities (G. L. [Ter. Ed.] c. 140, §§1 and 2), voted to 
grant to an applicant a common victualler's license, to expire December 
31, 1935 (G. L. [Ter. Ed.] c. 140, § 4; St. 1934, c. 171, § 1). On that 
date a certificate evidencing such license was signed by the board and 
deposited with the town treasurer. On March 15th the then board of 
selectmen (only one of whom was a member of the board prior to March 
12th) voted that said license be canceled. At this time the applicant 
had not paid the license fee or received the certificate. On March 28th 
the applicant called at the treasurer's house and, in the absence of the 
treasurer, paid the fee of five dollars (G. L. [Ter. Ed.] c. 140, § 2) to 
the treasurer's wife and received from her the certificate. On February 
23rd the local licensing authorities purported to issue to the applicant 
a license to sell alcoholic beverages to be drunk on the premises covered 
by said common victualler's license. 

On March 29th, your Commission, being under the impression that 
the person in question was the holder of a common victualler's license 
and was thereby eligible to be licensed to sell alcoholic beverages (G. L. 
[Ter. Ed.] c. 138, § 12), voted to approve the alcoholic beverages license 
(G. L. [Ter. Ed.] c. 138, § 12). 



P.D. 12. 59 

You request my opinion upon the following questions: — 

"1. Whether the license was legally granted to the applicant in ques- 
tion by vote of the board of selectmen on January 25, 1935, giving the 
applicant the right to possession of the said license before payment of 
the fee therefor to the town treasurer. 

2. Whether the vote of the new board of selectmen on March 15, 
1935, as appeared by the records of the selectmen, purporting to cancel 
the common victualler's license voted by the former board of selectmen, 
actually terminated the license. 

3. If the payment of the license fee of five dollars by the applicant to 
the wife of the town treasurer, the giving of a receipt for said sum by 
the treasurer's wife to the applicant, and the delivery to the applicant of 
the license itself signed by the former board of selectmen, gave to the 
said applicant a legal right and title to the common victualler's license, 
notwithstanding the vote of March 15, 1935, duly recorded on the records 
of the selectmen." 

The mere vote of the board of selectmen on January 25, 1935, grant- 
ing a common victualler's license was not tantamount to a license, 
and it did not give the proposed licensee any right, title or interest in 
the license for which she had applied. The selectmen, in acting as a 
licensing board, were not the agents or servants of the town, but were a 
statutorj^ board created by law and selected by the Legislature as a 
convenient mode of carrjdng out an important governmental function. 
McGinnis v. Medway, 176 Mass. 67; Brown v. Nahant, 213 Mass. 271. 

Relative to the issuance of a license for the sale of intoxicating liquor, 
it has been held that "the authority granted by the license arises upon 
the issuing of the written license, and not upon the vote granting it, or 
on the completion of the instrument by the signatures of the mayor and 
city clerk." Commonwealth v. Welch, 144 Mass. 356. 

"We are of opinion that a license granted under the Pub. Sts. c. 100 
is the paper issued to the licensee, and not the vote under which the 
paper is issued." Commonwealth v. Cauley, 150 Mass. 272, 275. 

It is apparent, therefore, that the license could not become effective 
until it had been issued bj^ delivery either to the person named therein 
as licensee or to his agent. Prior to that moment the license was merely 
executory and could, therefore, be canceled at the pleasure of the grant- 
ing authority. 

The licensee, however, claims it became effective when she paid the 
statutory fee and received the license from the wife of the town treas- 
urer on March 28, 1935. It is apparent, however, from the facts stated 
in your communication that on March 15, 1935, the new board of select- 
men which had been elected on March 12th voted to cancel the license 
which the preceding board of selectmen had voted to grant. If the 
action of the new board was effective, then, of course, the town treasurer 
was without any authority whatever to deliver to the licensee a license 
which had been previously canceled. 

While your letter discloses a change in the personnel of the board of 
selectmen, it is settled law that such a statutory board has always been 
considered as a continuing body and that the new board had a right to 
continue and conclude the unfinished legislative functions undertaken by 
the preceding members of this board. Taintor v. Mayor of Cambridge, 
192 Mass. 522; /eo v. City Council of Springfield, 241 Mass. 340. 



6d P.D. 12. 

Where a licensing board had been removed subsequent to April first and 
an entirely new board appointed, then the latter board had the right to act 
upon an application filed on April first with the old board. Although the 
court afterwards decided that the removal of the old board was illegal, yet 
it was stated that the license granted by the new board "was good, at least 
so long as the new board was in office." It is clear that if the new board of 
selectmen could grant a license upon an application filed with the preced- 
ing board, it could act upon any other matters pertaining to the granting or 
refusal of such licenses, including the power of canceling a license which had 
never become effective. Taher v. New Bedford, 111 Mass. 197, 199. 

The license in question, being entirely executory prior to the time it was 
received by the apphcant, could be canceled by the licensing board at any 
time prior to its valid delivery to the licensee. If the new licensing board 
thought the interests of the public required such a cancellation, it undoubt- 
edly had power to do so. If the old board had been continued in office, it 
likewise would have such authority and could without notice or opportunity 
of being heard cancel a license which had never been issued. If the old 
board thought it had made a mistake in the issuance of this license, it was 
free to cancel it before its issuance and the succeeding board had similar 
powers in the premises. Waucantuck Mills v. Magee Carpet Co., 225 Mass. 
31; Rollins v. Salem, 251 Mass. 468; Jamnhack v. Aamunkoitto Temper- 
ance Soc, Inc., 273 Mass. 45. 

The provision of G. L. (Ter. Ed.) c. 140, § 9, for the revocation or suspen- 
sion of a common victualler's license has no application to the present case. 
This section deals entirely with licenses which have become effective and 
are actually outstanding. In the case under consideration, at the time the 
license was delivered to the applicant it had no vitality, and, as a matter of 
fact, never became an effective license. 

Whether the applicant knew on March 28th, at the time the license was 
delivered, that the licensing board had canceled this license on March 15, 
1935, does not appear from your communication. The applicant's knowl- 
edge or lack of knowledge in this respect becomes immaterial. 

It is unnecessary to determine the validity of votes of municipal boards 
relative to contractual rights and determine whether or not a vote once 
taken in this respect could be rescinded before any notice thereof had 
been given to the party affected because no contractual rights of the appli- 
cant are involved, as the rights of such a licensee never rise higher than a 
mere privilege or permission. No contractual or vested rights were in- 
volved or impaired by the cancellation of the license. Burgess v. Mayor 
and Aldermen of Brockton, 235 Mass. 95. 

I am therefore of the opinion that the vote of January 25, 1935, to issue 
a common victualler's license was lawfully rescinded by vote of the select- 
men on March 15, 1935, and that thereby the certificate of Hcense delivered 
to the apphcant on March 28, 1935, was of no force or effect. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 61 

Parole — Eligibility — Sentences. 

A prisoner, sentenced for a crime committed while he is already serving an 
earlier sentence, will, unless the second sentence is ordered by the 
court to take effect "from and after" the expiration of the first sen- 
tence, be eligible for parole at the expiration of the minimum term 
under his second sentence. 

May 2, 1935. 

Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — In effect you ask my opinion as to whether two sentences 
for criminal offenses, the later of which is for a crime committed while the 
prisoner is serving time under the earlier, are to be added together or 
whether the second sentence starts on the date of the mittimus in the 
later case, and how the applicable rule of law affects the working of the 
parole law. 

G. L. (Ter. Ed.) c. 279, §§ 8 and 8A, read as follows: — 

"Section 8. A convict upon whom two or more sentences to imprison- 
ment are imposed may be fully committed upon all such sentences at the 
same time, and shall serve them in the order named in the mittimuses upon 
which he is committed ; but when fine and imprisonment are named in one 
of the sentences the prisoner shall always be committed upon the term 
sentence first. 

Section 8A. For the purpose only of determining the time of the tak- 
ing effect of a sentence which is ordered to take effect from and after the 
expiration of a previous sentence, such previous sentence shall be deemed 
to have expired when a prisoner serving such previous sentence shall have 
been released therefrom by parole or otherwise. Nothing in this section 
shall be construed to alter or control any provision of section one hundred 
and thirty-one or one hundred and forty-nine of chapter one hundred and 
twenty-seven." 

Unless a second sentence is ordered by the presiding judge to take effect 
"from and after" the expiration of an earlier sentence, it will start from the 
date of the mittimus issued with relation to such second sentence. Thus 
it will be served, for at least a part of its term, concurrently with the first 
sentence. 

In relation to eligibility to parole under the terms of G. L. (Ter. Ed.) 
c. 127, § 133, the prisoner will be entitled to a permit to be at hberty, other 
conditions necessary therefor existing, when he has served a term equal to 
the aggregate of the minimum terms of the two sentences. 

It is immaterial that the prisoner has already been granted a permit to 
be at liberty upon the attainment of the minimum prescribed portion of his 
first sentence and has been returned to his original place of confinement. 
He still has the right to "apply for a permit to be at liberty" "when he 
has served a term equal to the aggregate of the minimum terms of the" 
two sentences. 

That, in the instance to which you direct my attention, will be at the 
expiration of the minimum term under his second sentence, since on the 
facts stated he has already passed the date of the expiration of the minimum 
term under his first sentence. The two sentences are served concurrently, 
though they are not necessarily coterminous. 

Very truly yours, 

Paul A. Dever, Attorney General. 



62 P.D. 12. 

Constitutional Law — Boston Elevated Railway Company — Powers of 

Trustees. 

The Legislature cannot control the performance of the duty entrusted to 
the trustees of the Boston Elevated Railway Company to determine 
the character and extent of the service and facilities furnished, except 
in the legitimate exercise of the police power. 

May 4, 1935. 

House Committee on Ways and Means. 

Gentlemen: — You have asked my opinion with relation to House 
Bill No. 1789, as amended, upon four questions. 
House Bill No. 1789, as amended, reads: — 

"Section 1. The Boston Elevated Railway Company is hereby 
directed to provide motor bus transportation from Cleary square in the 
Hyde Park district of the city of Boston to the Hyde Park-Dedham bound- 
ary line. The fare to be charged persons using the transportation facili- 
ties provided for hereunder between said terminals or intervening points 
shall not exceed five cents; provided, that persons transferring at said 
Cleary square, after having paid a fare of ten cents between said terminals 
or between said Cleary square and any other point on the system of said 
company, shall be entitled to the usual free transfer privileges. 

Section 2. Said company, in providing transportation as required 
hereunder, is hereby exempted from the provisions of chapter one hundred 
and fifty-nine A of the General Laws, so far as they require the obtaining of 
a license for such transportation from the city council of said city of Boston 
and a certificate of public convenience therefor from the department of 
public utilities." 

Your questions are : — 

" 1. In view of the provisions of Spec. St. 1918, c. 159, and amendments 
thereto, relating to the public management and operation of the properties 
of the Boston Elevated Railway Company, is it constitutionally com- 
petent for the General Court to direct said railway company to provide 
transportation as provided in said bill? 

2. In view of said provisions, is it constitutionally competent for the 
General Court to regulate and fix fares of said railway company as pro- 
vided in said bill? 

3. Is it constitutionally competent for the General Court to authorize 
said railway company to operate motor vehicles for the carriage of persons 
for hire without obtaining a certificate of public convenience and necessity 
as required by G. L. (Ter. Ed.) c. 159A, so far as such operation affects 
any route or routes over which such transportation is being furnished 
by a carrier to whom such a certificate has been granted? 

4. Would said bill, if enacted into law, be violative of any provision 
of the Constitution of the United States or of this Commonwealth?" 

1 and 2. Spec. St. 1918, c. 159, entitled "An Act to provide for the 
public operation of the Boston Elevated Railway Company," provides in 
section 18 as follows: — 

"... None of the provisions of this act shall be construed to constitute 
a contract binding upon the commonwealth other than the provisions 
which define the terms and conditions under which, during the period of 
public management and operation, the property owned, leased or operated 



P.D. 12. 63 

by the Boston Elevated Railway Company shall be managed and operated 
by the said trustees, and the provisions of section thirteen, which pro- 
visions shall constitute a contract binding upon the commonwealth. . . ." 

Section 2 of said chapter 159 provides: — 

"Said board of trustees, hereinafter called the trustees, shall manage 
and operate the Boston Elevated Railway Company hereinafter called 
the company, and the properties owned, leased or operated by it, for a 
period of ten years, commencing on the first day of the month next after 
their appointment and qualification, and, subject to the provisions of 
this act, shall take and have possession of said properties in behalf of the 
commonwealth during the period of public operation, and, for the purposes 
of this act, shall, except as is otherwise provided in this act have and may 
exercise all the rights and powers of said company and its directors, and, 
upon behalf of said company, shall receive and disburse its income and 
funds. They shall have the right to appoint and remove in their dis- 
cretion the president, treasurer and clerk of the corporation, and all officers 
of the company other than the board of directors. They shall have the 
right to regulate and fix fares, including the issue, granting and withdrawal 
of transfers, and the imposition of charges therefor, and shall determine the 
character and extent of the service and facilities to he furnished, and in these 
respects their authority shall be exclusive and shall not be subject to the 
approval, control or direction of any other state board or commission. 

In the management and operation of the said company and of the prop- 
erties owned, leased or operated by it, as authorized by this act, the trustees 
and their agents, servants and employees shall be deemed to be acting as 
agents of the company and not of the commonwealth, and the company 
shall be liable for their acts and negligence in such management and opera- 
tion to the same extent as if they were in the immediate employ of the 
company, but said trustees shall not be personally liable. A majority 
of the board shall constitute a quorum for the transaction of business, 
and the action of a majority of those present at any meeting shall be 
deemed the action of the trustees. 

Nothing herein contained shall be held to affect the right of the com- 
monwealth or any subdivision thereof to tax the company or its stock- 
holders in the same manner and to the same extent as if the company had 
continued to manage and operate its own property." 

My predecessors in the office of Attorney General have repeatedly held 
that the provisions in Spec. St. 1918, c. 159, relating to the right of the 
trustees to regulate and fix fares and to determine the character and extent 
of the services and facilities to be furnished constituted a contract between 
the Commonwealth and the company, which could not be impaired without 
violating U. S. Const., art. I, § 10, and that various bills which would 
impair such contractual rights would be unconstitutional if enacted into 
law. VI Op. Atty. Gen. 396; VII ibid. 11 and 331. See also V Op. 
Atty. Gen. 409. It has been specifically said in VII Op. Atty. Gen. 18, 
that the provisions of a bill establishing a five-cent fare were clearly in 
derogation of the grant of power under such contractual rights, and would, 
therefore, be unconstitutional unless such provisions were accepted by the 
parties to the contract through vote of stockholders of the railway. VI 
Op. Atty. Gen. 396, 398. 

It has also been pointed out that the duty entrusted to the trustees to 
determine the character and extent of the service and facilities to be fur- 



64 P.D. 12. 

nished cannot be controlled by the Legislature except in the legitimate 
exercise of its power to secure the public safety, health and morals. VII 
Op. Atty. Gen. 11 and 331. 

With these expressions of opinion by my predecessors in office I am 
in accord. 

The same general view of the nature of the instant statute as a contract 
has been expressed by the Supreme Judicial Court in Boston v. Treasurer 
and Receiver General, 237 Mass. 403, 413. 

I therefore answer your first two questions in the negative. 

3. Your third question, being predicated upon the assumption that a 
bill, merely permissive in its terms, was before you for consideration, is 
hypothetical in character, since the measure which you have laid before 
me purports to be mandatory rather than permissive. Were it permissive, 
I could not well say that the mere fact that by its terms the Boston Ele- 
vated Railway Company is not required to obtain a license and a certificate 
of public convenience before providing motor bus transportation over 
the streets, as are other common carriers, would of itself render the meas- 
ure, if enacted, unconstitutional. It may be that the unique mode of 
operating the Boston Elevated Railway Company by public trustees, 
under the peculiar provisions of Spec. St. 1918, c. 159, would be a substi- 
tute for the governmental oversight, given through license and certificate, 
which might justify the General Court in the exercise of a reasonable 
judgment in placing the Boston Elevated Railway Company, although 
only a single carrier, in a classification of its own which might fairly en- 
title it to relief from the regulations imposed upon other carriers operating 
under very different conditions. 

4. With relation to the measure which you have submitted to me, how- 
ever, I am of the opinion that, if enacted into law, it would be pronounced 
unconstitutional if it came before our courts for their consideration. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Bonds — Electric Companies — Consolidation — Savings Bank Investment. 

May 6, 1935. 
Hon. H. H. Pierce, Commissioner of Banks. 

Dear Sir: — You request my opinion as to whether G. L. (Ter. Ed.) 
c. 168, § 54, cl. Sixth A (8), is to be construed as applicable to the bonds 
of the Androscoggin Electric Corporation. 

Said section 54 provides for investment by savings banks in securities 
thereafter specified. Clause Sixth A refers to bonds of electric and gas 
companies as therein described, with provisos, included in which are, — 
" (1) The gross operating revenue of the corporation . . . shall be not 
less than one million dollars for its fiscal year immediately preceding" the 
time of the savings bank investment; "(4) For the period of five j^ears 
immediately preceding the time of making any investment authorized by 
this clause, the officially reported net earnings available for interest 
charges of such corporation, as shown by its annual reports or other sworn 
statements to the municipal, state or federal authorities shall have been 
equal to at least twice the interest charges for the same period on the cor- 
poration's total outstanding funded debt"; and ''(8) If, during any of 
the periods mentioned in this clause, such corporation has been consoli- 



P.D. 12. 65 

dated by purchase or otherwise, the aggregate operating figures of the 
corporations so consoHdated, exckisive of inter-companj^ charges, shall be 
sufficient for the purpose of this clause." , 

You state that the Androscoggin Electric Corporation was formed in/ 
February of the present year by the consolidation of three corporations;; 
that the last fiscal year of each of these corporations ended December 31,1 
1934, and that reports for that year, as referred to in clause Sixth A (4),1 
have been filed, as have reports for four or more preceding years. These 
last five reports show, as I understand it, net earnings of at least twice thai 
interest charges as required by said subdivision (4). The gross operating' 
revenue of none of the consolidated corporations for the last year amounted 
to a million dollars [clause Sixth A (1)], but the aggregate gross operating 1 
revenue is over that amount. 

It would seem that it must have been the intent of subdivision (8) to 
authorize an investment under the circumstances here in question. The 
companies consolidated have met the requirements of subdivision (4) for 
a preceding five-year period. The bonds of any one of the consolidated 
companies would at the present time be an authorized investment, ac- 
cording to the reports of this five-year period, so far as subdivision (4) is 
concerned. The aggregate gross operating revenue of the companies now 
consolidated for the preceding year exceeds the amount specified in sub- 
division (1). • 

The purpose of subdivision (8) seems clear. Apart from it, no bonds 
issued by a consolidating company could become a legal investment until 
such consolidating company had itself done business for five years. The 
purpose of subdivision (8) is to avoid that result by providing that the 
requirements of the preceding subdivisions may be met by taking "the 
aggregate operating figures of the corporations so consolidated." 

The difficulty here arises from the fact that subdivision (8), taken liter- 
ally, refers only to a consolidation occurring "during any of the periods 
mentioned in this clause." You state that your department has construed 
the phrase "period of five years" as used in subdivision (4) as meaning 
fiscal 3'^ears ; that this period and the period of the preceding year, referred 
to in subdivision (1), which is expressly defined as "fiscal year," seem to 
be the only "periods mentioned" [subdivision (8)] in clause Sixth A; and 
that therefore your department has taken the position that subdivision (8) 
is inapphcable in the present case because the consohdation did not occur 
during one of the "periods mentioned." 

According to the practice of your department, as I understand it, if 
the consohdation in the present case had occurred, say, in December, 
1934, an investment in the bonds of the consolidated company would be 
authorized, provided the returns of the companies consohdated for the 
five fiscal years ending December 31, 1934, met the requirements of sub- 
division (4), for in that case the consolidation would have been made 
within one of the periods mentioned in clause Sixth A; and you raise no 
question but that that result would be proper. But so far as the security 
of the investment is concerned the situation here is the same as if the 
consolidation had occurred in 1934. It can hardly have been the inten- 
tion of the statute that an investment should be authorized in one case 
and not in the other. There is no reasonable ground for a distinction. 
Unless the words of subdivision (8) absolutely require a different construc- 
tion, that subdivision is not to be construed in a way which would be 
inconsistent with the legislative intent. In my opinion, the words of 



66 P.D. 12. 

subdivision (8) do not require such a construction. The "time of making 
any investment" is a time mentioned in subdivision (4). It is the time 
fixed by subdivision (4) for determining what reports are to be used. It 
may be said to mark the end of a period. Without doing undue violence 
to the words used in subdivision (8), they may be construed as appHcable 
to the present case; and, in view of what I beheve to be the plain intent 
of that subdivision, I so construe them. 

Accordingly, it is my opinion that the fact that the consolidation here 
in question did not occur until the present year does not in itself make it 
impossible to establish the bonds as an authorized investment for savings 
banks at the present time. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages Coritrol Commission — Local Licensing Board — License 

— Sundays. 

The action of a local licensing board prohibiting all sales on Sundays is of 

no force. 

May 15, 1935. 

Alcoholic Beverages Control Commission. 

Gentlemen: — You state that the hcensing commission of Somerville, 
with a view to preventing the sale of alcoholic beverages on Sunday by 
holders of common victualler's licenses, inserted in the form of applica- 
tions for alcoholic beverages licenses for 1935, questions as to whether 
the apphcant would "prefer" to make sales on Sunday from one p.m. 
until eleven p.m., and on week days only from eleven a.m. until eleven 
P.M., or, in the alternative, to make no sales on Sunday but instead to 
sell on week days from eight a.m. until midnight, or eleven forty-five p.m. 
on Saturday. Some of the applicants expressed in their applications a 
preference for one alternative and some for the other. None of the licenses 
issued, however, purported to impose as a term of the license the prefer- 
ence expressed in the appHcation. The only condition expressed in the 
license was that it should be "subject to the laws of the Commonwealth 
. . . and the rules and regulations of the licensing authorities." Each 
licensee had been issued a common victualler's license for the year 1935, 
under the provisions of G. L. (Ter. Ed.) c. 140, § 2. These common victual- 
ler's licenses were unrestricted in terms, and presumably authorized the 
licensees to do business as common victuallers for seven days in the week. 
On January 2, 1935, all licensees were notified, as a result of a vote of the 
licensing authorities made on December 26, 1934, that no sales of alco- 
holic beverages should be made on Sundays. All the licenses had been 
issued prior to this notice of January 2, 1935, and, so far as appears, prior 
to the vote of December 26, 1934. Upon the protest of various Hcensees 
a pubhc hearing upon the question of Sunday sales was held by the hcens- 
ing authorities on March 11, 1935, and on that day the licensing authori- 
ties voted not to change their vote of December 26, 1934. The Hcensees 
were notified of this decision on March 12th. On March 25th some of these 
licensees petitioned the licensing authorities to permit them to sell alco- 
holic beverages on Sunday. These petitions were on that date denied; 
and some of these petitioners, who had also been objectors in the matter 
heard on March Uth, appealed on March 29th to your Commission. 



P.D. 12. 67 

You request my opinion upon the following questions : — 

"1. Have the local licensing authorities the power to make regulations 
concerning the sale of alcoholic beverages by common victuallers, licensed 
to sell the same, by limiting the hours of sale to less than the minimum 
hours set forth in the fifth paragraph of G. L. (Ter. Ed.) c. 138, § 12, as 
amended? 

2. Is this Sunday restriction of the sale of alcoholic beverages by com- 
mon victuallers conducting restaurants, licensed for seven days in each 
week, and also hcensed to sell alcoholic beverages to be drunk on the prem- 
ises, without any restrictions stated in their beverages licenses as to the 
number of days in each week on which such alcoholic beverages may be 
sold in said restaurants, as hereinbefore set forth, in violation of the rights 
of the licensees under the said fifth paragraph of G. L. (Ter. Ed.) c. 138, 
§ 12, as amended? 

3. Did the six applicants hereinbefore named, by reason of their failure 
to file appeals within five days from January 2, 1935, the date of the notice 
issued by the Somerville commission, hereinbefore mentioned, waive their 
right to hearing before the Alcoholic Beverages Control Commission? 

4. If your answer to question 3 is in the affirmative, did the applicants 
hereinbefore named have the right to appeal to the Alcoholic Beverages 
Control Commission on March 29, 1935, which was within five days after 
March 26, 1935, when they received notice of the denial of the petition 
hereinbefore mentioned?" 

Section 12 of G. L. (Ter. Ed.) c. 138, as amended, provides in part: — 

"The hours during which sales of such alcoholic beverages may be made 
by any licensee as aforesaid shall be fixed by the local licensing authorities 
either generally or specially for each licensee; provided, that no such sale 
shall be made on any day between the hours of two and eight o'clock ante 
meridian and that, except as provided in section thirty-three, no such 
licensee shall be barred from making such sales on any day after eleven 
o'clock ante meridian and before eleven o'clock post meridian, and that 
no tavern shall be kept open on any day after eleven o'clock post meridian." 

Section 33, as amended, provides in part: — 

"No holder of a tavern license shall sell any alcoholic beverages on Sun- 
days, no other licensee under section twelve shall sell any such beverages 
on Sundays between the hours of two o'clock ante meridian and one o'clock 
post meridian. ..." 

Section 64 provides in part: — 

"The licensing authorities after notice to the licensee and reasonable 
opportunity for him to be heard by them, may modify, suspend, revoke or 
cancel his license upon satisfactory proof that he has violated or permitted 
a violation of any condition thereof, or any law of the commonwealth." 

Section 67 provides in part : — 

"Any applicant for a license who is aggrieved by the action of the local 
hcensing authorities in refusing to grant the same or by their failure to act 
within the period of thirty days limited by section sixteen B, or any one 
who is aggrieved by the action of such authorities in suspending, cancel- 
ling, revoking or declaring forfeited the same, may appeal therefrom to the 
commission within five days following notice of such action or the expira- 
tion of said period, and the decision of the commission shall be final : . . ." 



68 P.D. 12. 

The local licensing authorities have purported by vote to forbid Sunday 
sales. If a licensee fails to accede to that vote, the local licensing author- 
ities may or may not attempt to revoke his license, upon the alleged ground 
that he has permitted a violation of a condition thereof (section 64). If 
they do revoke a license on the ground that the licensee has not complied 
with the vote, the licensee will then be "aggrieved by the action," and will 
then have a right of appeal to your Commission under section 67, and the 
question of the effect and validity of the vote will then be presented to 
your Commission. At present, however, that question is not before you. 
In fact, your communication does not disclose any real question lawfully 
before your Commission requiring its decision, because, as will hereafter 
appear, the action of the licensing board is not sufficient basis upon which 
to predicate an appeal even if it were seasonably taken. 

It is apparent, however, that a decision upon the merits of the questions 
presented is desired by everybody, and, without intending to establish a 
precedent, we pass to a determination of those questions. 

The licensing board is a statutory body possessing only the powers con- 
ferred upon it by law. Manifestly, this local board cannot act under the 
authority by law imposed upon it. Rules and regulations of a subordinate 
board beyond the sweep of an enabling act have no force or validity. Com- 
monwealth V. Maletsky, 203 Mass. 241 ; Commonwealth v. Hayden, 211 Mass. 
296; Commonwealth v. McFarlane, 257 Mass. 530. 

The statute authorizes the sale of alcohoHc beverages on Sundays by 
holders of restaurant hcenses, except that no sale shall be made from two 
o'clock in the morning until one o'clock in the next afternoon. There is 
nothing else contained in our statutes restricting the hours during which 
sales by such licensees may be lawfully made. Restaurant licenses are held 
commonly by persons who are also the holders of common victualler's 
licenses, which permit them to conduct their places of business on every 
day, including Sunday. It is clearly the intent of the Legislature that 
restaurant licensees should be permitted to sell alcoholic beverages on Sun- 
days, except during the hours above mentioned (section 33). The action 
of the licensing board prohibiting all sales by licensees on Sundays is not 
warranted by law and is, consequently, of no force or effect. 

While it may be that a license amounts to only a privilege or permission 
to do something which might otherwise be unlawful, and while it is true 
that a license is neither a contract nor property in which a hcensee has any 
vested interest {Burgess v. Mayor and Aldermen of Brockton, 235 Mass. 
95, 100), yet it is also true that such a privilege granted and continued by 
virtue of a statute cannot be restricted or destroyed by a local regulation 
unless the power to do so is delegated to the local authorities. Burke v. 
Holyoke Board of Health, 219 Mass. 219, 221; Greene v. Mayor of Fitchburg, 
219 Mass. 121; Cawley v. Northern Waste Co., 239 Mass. 540. 

The vote of the licensing board on December 26, 1934, did not constitute 
a refusal to grant a license or suspension, cancellation, revocation or for- 
feiture of an existing license, neither did the vote of March 25, 1935; con- 
sequently, there can be no appeal under section 67. The matters referred 
to are still within the jurisdiction of the Hcensing board, as the appeal is 
wholly ineffectual, and, consequently, there is no pending matter before 
your Commission. Bowler v. Palmer, 2 Gray, 553; Morse v. O'Hara, 247 
Mass. 183. 

I am therefore constrained to answer your first and second inquiries in 



P.D. 12. 69 

the negative, and also your third inquiry, on the ground that there was 
nothing that the licensees could waive. No answer to your fourth inquiry 
is necessary. 

Very truly yours, 

Paul A. Dever, Attorney General. 

South Essex Sewerage Board — City of Peabody — Member of Board. 

May 16, 1935. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 
Dear Sir: — You have written me as follows: — 

"In connection with the certification of district notes, the Director of 
Accounts is desirous of obtaining your opinion on the following question 
of law : — 

St. 1925, c. 339, provides for the establishing of the South Essex Sew- 
erage District. Section 2 of said act creates the South Essex Sewerage 
Board. Under the statute, this board now consists of 'the city engineer 
of Salem, the city engineer of Peabody and the commissioner of public 
works of Beverly,' together with a fourth member to represent the town 
of Danvers and a fifth member appointed by the Governor. (See also St. 
1927, c. 36, § 2.) 

Recently the city of Peabody abolished the office of city engineer and 
various other offices, and has created in their stead a department of pub- 
lic works. . Will you kindly inform me as to the effect of this ordinance 
on the makeup of the South Essex Sewerage Board." 

St. 1925, c. 339, § 2, reads, in its applicable part: — 

"The city engineer of Salem, the city engineer of Peabody, the com- 
missioner of pubhc works of Beverly, the engineer acting as county en- 
gineer for the county of Essex, and the chief engineer of the department 
of public health of the commonwealth shall be members of said board, 
ex officiis." 

The ordinance adopted by the city council of Peabody, which I assume 
has been properly enacted, abolishes the office of city engineer but cre- 
ates a department of public works and gives to the commissioner thereof 
"all the powers" of, and the duty to perform all the obligations of, the 
former offices of "city engineer," among other offices. This being so, 
the position of member of the South Essex Sewerage Board, formerly 
filled by the "city engineer of Peabody," is now properly filled by the 
commissioner of the department of public works of that city. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Armory — Use for Nonmilitary Purposes — Game of Beano — License. 

Before an armory may be used for nonmilitary purposes, in which a 
game of beano is carried on, a municipal license for the holding of 
such game must first be obtained under G. L. (Ter. Ed.) c. 271, 
§22A. 



70 P.D. 12. 

May 16, 1935. 
Brig. Gen. William I. Rose, The Adjutant General. 

Dear Sir : — You have advised me that an armory is to be used by a 
military unit for certain nonmihtary purposes, under that part of G. L. 
(Ter. Ed.) c. 33, § 48 (a), which provides: — 

"MiHtary units stationed in an armory may, at any time when it is 
not in use for mihtary purposes, use such armory without charge for 
social activities, or athletics, subject only to rules and regulations pro- 
mulgated by the military custodian of such armory and approved by 
the governor and council." 

You also state that the object is to raise funds for such unit, and that 
part of the social activities to be provided consists in the conducting of a 
game of beano. 

You inquire whether, when a game of beano is so conducted in an 
armory, the proceeds of the charges for admission to, and/or participa- 
tion in, such game being devoted entirely to a civic purpose, a license 
under G. L. (Ter. Ed.) c. 271, § 22A, as inserted by St. 1934, c. 371, must 
be obtained from municipal authorities for the conducting of such game. 

It has been repeatedly held in opinions of my predecessors in office, in 
which I concur, that when persons, under the provisions of G. L. (Ter. 
Ed.) c. 33, §§ 48-50, are using armories for certain nonmihtary purposes 
authorized by said section 48, duly approved by designated military 
authorities of the Commonwealth, it is not necessary for them to obtain 
licenses from municipal authorities, even if the use of the armory in- 
cludes such forms of entertainment as, if conducted elsewhere, would 
require such hcenses from municipal authorities, under the terms of G. L. 
(Ter. Ed.) c. 140, §§ 181 and 182. See Attorney General's Report, 1933, 
p. 47, and opinions there cited. 

The municipal licenses required by said chapter 140, sections 181 and 
182, and those heretofore considered in this connection by Attorneys 
General, all relate, however, to things inherently lawful. 

The game of beano, conducted as I understand it is to be in the instant 
case, namely, with a charge and prizes awarded by chance, is inherently 
unlawful, under the provisions of G. L. (Ter. Ed.), c. 271, § 7, with relation 
to lotteries. 

By an amendment to G. L. (Ter. Ed.) c. 271, enacted by St. 1934, 
c. 371, it was provided that no one conducting such a game of beano should 
be prosecuted, provided (1) that the proceeds are devoted solely to certain 
purposes, among others a civic purpose, and (2) that the game be con- 
ducted under a license to be granted by municipal authorities, and upon 
such terms and conditions as such authorities may prescribe. 

The first of these conditions is complied with in the instant case; unless 
the second (the municipal license) is also complied with, the persons con- 
ducting the game become liable to criminal prosecution. Without this 
municipal license, conducting a game of beano is a criminal offense. The 
license is of a different character than the licenses issued under said chapter 
140, sections 180-182, for activities lawful in themselves. This particular 
license is a prerequisite to the prevention of prosecution for the game of 
beano, which is, as such, an illegal game. 

St. 1934, c. 371, § 22A, reads as follows: — 

"Nothing in this chapter shall authorize the prosecution, arrest or con- 
viction of any person for conducting or promoting, or for allowing to be 



P.D. 12. 71 

conducted or promoted, a game of cards commonly called whist or bridge 
or the game commonly called beano, or substantially the same game under 
another name, in connection with which prizes are offered to be won by 
chance; provided, that the proceeds of the charges for admission to, 
and or participation in, such game are donated solely to charitable, civic, 
educational, fraternal or religious purposes; and provided, further, that 
said game called beano, or substantially the same game under another 
name, is conducted under a license hereby authorized to be granted by 
the mayor of the city or the selectmen of the town in which such game 
is to be conducted, and upon such terms and conditions as the mayor or 
selectmen may prescribe." 

Use of an armory for the promotion of a game illegal in itself, for the 
conduct of which criminal prosecution may be commenced, is outside the 
enumerated various uses permitted by said chapter 33, section 48, which 
various uses must be assumed to have been intended by the Legislature to 
be lawful in themselves. 

While the general licensing authority of municipalities, such as is de- 
scribed in said chapter 140, sections 181 and 182, does not extend over 
properties peculiarly within the control of the Commonwealth, it was not, 
however, the intent of the Legislature to permit the use of armories for any 
acts unlawful in themselves and subject to criminal prosecution against 
the promoters. The promoting or conducting of a game of beano is a 
use unlawful in itself, for which the promoter is liable to prosecution unless 
he has obtained a municipal license such as is described in said section 22A. 

The principles of law applied to other forms of municipal licenses in 
relation to activities in armories, in the prior opinions to which I have 
referred, have no application to the license required by said section 22 A, 
without which a game of beano may not be conducted in an armory, for 
the reasons which I have set forth. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Railroad — Eminent Domain — Public Pur-pose. 

A certain bill providing for the taking of the bed and tracks of a railroad 
engaged in interstate carriage would be unconstitutional, if enacted. 

May 20, 1935. 

Hon. Albert F. Bigelow, Chairman, House Committee on Ways and Means. 

Dear Sir: — Your Committee has requested my opinion as to the 
constitutionahty, if enacted into law, of the following measure. House 
No. 1785: 

"An Act authorizing the Acquisition of Certain Railroad Rights between 
the' North and South Stations in Boston. 

Whereas, The deferred operation of this act would tend to defeat its 
purpose, therefore it is hereb}^ declared to be an emergency law, necessary 
for the immediate preservation of the public safety and convenience. 

Be it enacted by the Senate and House of Representatives in General Court 
assembled, and by the authority of the same, as follows: 

The department of public works is hereby authorized and directed to 
acquire by purchase or eminent domain all rights and interests in the rail- 
road bed and tracks on the street level of Atlantic avenue and Commercial 



72 P.D. 12. 

street between the North and South stations in the city of Boston. Said 
department shall thereupon cause said tracks to be removed. All rights 
and interests acquired by the commonwealth hereunder shall be there- 
upon conveyed to the city of Boston." 

I am advised that the railroad bed and tracks on the street level of 
Atlantic Avenue are those of the Union Freight Railroad Company. This 
railroad, through a series of leases, as I am informed, has since 1893 been 
operated by the New York, New Haven & Hartford Railroad Company 
and is in substance a part of the Boston terminal of the New York, New 
Haven & Hartford Railroad Company. It is used by the latter road in 
the course of interstate commerce. 

The Union Freight Railroad Company was incorporated by St. 1873, 
c. 342, and its locations set forth therein, subject to amendment; and 
originally, and as most lately amended by St. 1930, c. 92, it had a loca- 
tion for single or double track for freight haulage by railroad, in such 
portions as may be necessary for its purpose, in Atlantic Avenue, among 
other streets. I am informed that the roadbed and tracks on Atlantic 
Avenue constitute a substantial part of its entire line. The method of 
operating the railroad under the present system of control, so far as it 
relates to interstate commerce, is described in Boston Wool Trade Assoc. 
V. Director General, 69 Interstate Com. Comm. Rep. 282, and the obliga- 
tions and privileges of the railroad in its relation to State authorities in 
Boston V. Union Freight R.R. Co., 181 Mass. 205; and McDonald v. Union 
Freight R.R. Co. 190 Mass. 123. 

The entire subject of the regulation and operation of railroads engaged 
in interstate traffic has been taken over by the Federal government, 
under the Commerce Clause of the United States Constitution (U. S. 
Const, art. I, § 8), and is governed and controlled by U. S. C. A., Title 49, 
Interstate Commerce Act. Under section 1, paragraph 18 of Title 49, it is 
provided that no such carrier "shall abandon all or any portion of a line 
of railroad or the operation thereof unless and until there shall first have 
been obtained from the commission a certificate" of public convenience. 

This being so, a State cannot, as would be done by the instant proposed 
measure, destroy a substantial part of the line of a railway carrier so as 
to render it difficult or impossible for it to carry out those duties which 
may devolve upon it as a part of the railroad system of the United States, 
and which it is required to perform by said Code, Title 49, pars. 1-41 (see 
Kansas City So. Ry. Co. v. Kaw Valley Drainage Dist. 233 V. S. 75, 78). 

To take by eminent domain so great a part of the location of a railroad 
as is indicated in the instant measure is virtually to cripple or destroy it 
and to take away its franchise. A State may not so interfere with an in- 
strument of interstate commerce. 

Even if the rights and interests of the railroad in the bed and tracks 
on the street level of Atlantic Avenue may be acquired by purchase, under 
the bill, with the approval of the Interstate Commerce Commission, 
which approval would be an essential prerequisite of a purchase, the bill 
would-still be unconstitutional in its present form, for it cannot be gathered 
therefrom that such rights and interests would be acquired and paid for 
to effectuate a public purpose, for which alone public money may be 
spent. Their subsequent conveyance, provided for in the bill, to the city 
of Boston could not well be taken as indicating any such public purpose, 
for a municipality has no power to make use of rights and interests which 
can be effectuated only by the operation of a railroad. The bill might in 



P.D. 12. 73 

this respect be clarified by a legislative declaration therein that the au- 
thorized purchase was for highwaj^ purposes, to make available the use 
of all of Atlantic Avenue in the city of Boston for the traveling public. 

This measure as now drawn, if enacted into law, would not be consti- 
tutional under the provisions of either the Federal or State Constitutions. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Power of Legislature — Nuisance. 

A proposed bill which declares that the use of property owned by two par- 
ticular corporations is a nuisance, and provides for an abatement, 
would be unconstitutional if enacted into law. 

June 5, 1935. 

Hon. Albert F. Bigelow, Chairman, House Committee on Ways and Means. 

Dear Sir: — The House Committee on Ways and Means inquires 
whether House Bill No. 1803, if enacted into law, would be unconstitu- 
tional. 

The Legislature is authorized by the Constitution (pt. 2d, c. I, § I, 
art. IV) "to make, ordain, and establish all manner of wholesome and 
reasonable orders, laws, statutes and ordinances ... as they shall judge 
to be for the good and welfare of this commonwealth." 

Under this grant of authority many laws have been enacted protecting 
the health and safety of the people, especially in limiting the use of prop- 
erty in certain respects deemed to be injurious to the public. It is well 
established that the Legislature may within certain limits restrict the 
uses to which property may be put. Sawyer v. Davis, 136 Mass. 239; 
Rideout v. Knox, 148 Mass. 368, 372; Miller v. Norton, 152 Mass. 540, 546. 

The limitations on the power of the General Court to determine and 
order the abatement of nuisances have been settled as each specific case 
has arisen, and definite limits for the exercise of such authority have 
never been fixed by our Supreme Court. Bacon v. Boston, 154 Mass. 100, 
102; Commonwealth v. Parks, 155 Mass. 531. 

The landowner, however, has certain rights incidental to his proprie- 
tary interests which must be respected and cannot be taken away with- 
out compensation. Commonwealth v. Alger, 7 Cush. 53, 85. Lentell v. 
Boston & Worcester St. Ry. Co., 202 Mass. 115, 119. 

The proposed legislation, however, in my opinion, is violative of the 
terms of the Federal and the State Constitution. It selects property 
owned by two corporations in a certain district, and not only attempts 
by a legislative fiat to adjudicate that the use made of the property con- 
stitutes a nuisance, but it attempts to go further and order the abate- 
ment of a nuisance in one of two ways. There is, however, no such au- 
thority in the Legislature to deal with real estate in the manner proposed. 
Belmont v. New England Brick Co., 190 Mass. 442; Durgin v. Minot, 203 
Mass. 26. Accordingly, I answer your question in the affirmative. 

Very truly yours, 

Paul A. Dever, Attorney General. 



74 P.D. 12. 

Constitutional Law — Workmen's Compensation — Compulsory Insurance. 

A bill requiring that every policy insuring an employer against liability 
for injury to employees must contain insurance under the provisions 
of the Workmen's Compensation Law would not be unconstitutional, 
if enacted. 

June 6, 1935. 

Philip Sherman, Esq., Chairman, House Committee- on Bills in the Third 

Reading. 

Dear Sir : — You request my opinion as to the constitutionality of 
House Bill No. 1292, entitled "An Act to safeguard and extend the Work- 
men's Compensation Law by making void other employee insurance 
contracts." 

This bill provides for inserting in G. L. (Ter. Ed.) c. 152, the Workmen's 
Compensation Law, a section, to be numbered 54, reading as follows : — 

"Every contract or agreement hereafter entered into the purpose of 
which is to insure an employer in whole or in part against liability on 
account of injury or death of an employee, other than a domestic servant 
or a farm laborer, shall be void unless it also insures the payment of the 
compensation provided by the workmen's compensation law." 

Under our Workmen's Compensation Law an employer is not compelled 
to take out workmen's compensation insurance. He has a right, if he so 
elects, to rely upon his defense in an action at law. Opinion of the Jus- 
tices, 209 Mass. 607; Young v. Duncan, 218 Mass. 346; Gillard's Case, 244 
Mass. 47, 54. He would, however, still have this right to elect under the 
proposed law. The bill in question seeks to restrict the kind of insurance 
that he may obtain, and to say to the employer that if he does become 
insured, then whatever contract of insurance he purchases shall contain 
therein the provisions of G. L. (Ter. Ed.) c. 152, our Workmen's Com- 
pensation Law. 

The crucial objection to such legislation is to determine whether or not 
it unduly restricts the freedom of contract as guaranteed by both the State 
and the Federal Constitution. 

The specific agreements mentioned in the bill are undoubtedly con- 
tracts of insurance, as defined by our law. G. L. (Ter. Ed.) c. 175, § 2. 
The Legislature has broad regulatory powers over insurance companies, 
either through the exercise of the police power or by virtue of granting 
charters to domestic companies or in prescribing the conditions upon which 
foreign companies are allowed to do business in this Commonwealth. In- 
surance business has always been considered as so invested with a public 
interest as to promote legislative control and supervision, within certain 
well-established limits. New York Life Ins. Co. v. Hardison, 199 Mass. 
190; Opinion of the Justices, 251 Mass. 569. 

The ultimate aim of the proposed legislation might be more effectively 
accomplished if an amendment were added thereto prohibiting any insur- 
ance company authorized to do business in this Commonwealth from 
entering into any contract of insurance with any employer for the protec- 
tion of the safety of his employees unless the policy afforded protection 
to such employees in accordance with our Workmen's Compensation Law. 

The right to contract is a fundamental right resting upon constitutional 
guaranties, but it "is subject to such reasonable restraints as the common 



P.D. 12. 75 

good or the general welfare may require." Adair v. United States, 208 
U. S. 161, 174. 

The General Court, in the interests of promoting the public welfare by 
furnishing adequate relief to injured employees or to their dependents in 
case of death, and by requiring the assumption of loss due to personal in- 
juries or death, to be paid by the employers, is authorized to pass such 
legislation as it may deem necessary to secure a more equitable adjust- 
ment of losses incurred through accidents in industry. In the exercise of 
the police power, the General Court undoubtedly has the right to eliminate 
common law defenses; to put the expense of loss due to accidents upon the 
employer; to prescribe a scale of damages to be paid to injured employees; 
to set up and maintain a commission to administer such a system of law; 
and to provide for an adequate system of insurance; and, as a practical 
matter, to make it more desirable for an employer to accept the Work- 
men's Compensation Law than to rely upon his rights under the common 
law. 

We think the intent of the Massachusetts Legislature in framing our 
present Workmen's Compensation Law w^as to have but two classes of 
employers, — those who accepted the benefits of this act and those who 
did not. An elaborate system of insurance was provided for those who 
had accepted the act. There were no provisions therein for insurance 
against some risks and not against others. No scheme of partial coverage 
was promulgated. The employer either had insurance to the full extent 
mentioned in the compensation act or his rights were to be determined 
under the common law, as modified by the act. 

We think it clear that the Legislature, for the reasons more fully dis- 
cussed in the cases hereinafter cited, has the right to require an employer 
who voluntarily accepts the compensation act to furnish insurance in 
accordance with this act. 

The Federal Employers' Liability Act contained a provision prohibiting 
the making of agreements by those engaged in interstate commerce which 
in any way limited the liability imposed upon the railroads by the act. 
In Second Employers^ Liability Cases, 223 U. S. 1, 52, it was stated: — 

"If Congress possesses the power to impose that liability, which we here 
hold that it does, it also possesses the power to insure its efficacy by pro- 
hibiting any contract, rule, regulation or device in evasion of it." 

The pertinent principles governing the right conclusion of the question 
now propounded have been settled in many decisions of the United States 
Supreme Court, and it has been uniformly held that the Legislature has 
sufficient control over not only insurance but especially over the relations 
between emplo3'ers and emploj^ees, particularly from the aspect of the 
public interest, and that it may impose certain burdens upon the em- 
ploj^ers for the benefit of the employees, and thus promote the common 
welfare. Hawkins v. Bleakly, 243 U. S. 210; Mountain Timber Co. v. 
Washington, 243 U. S. 219; Middleton v. Texas Power & Light Co., 249 
U. S. 152; Arizona Employers' Liability Cases, 250 U. S. 400; Cudahy 
Co. V. Parramore, 263 U. S. 418. 

The validit}^ of the Workmen's Compensation Act of New York (L. 1913, 
ch. 816, now ch. 67 of the Consolidated Laws) was challenged upon nu- 
merous substantial grounds. That legislation contained a provision that 
"every contract or agreement of an employer the purpose of which is to 
indemnify him from loss or damage on account of the injury of an em- 



76 P.D. 12. 

ployee by accidental means, or on account of the negligence of such em- 
ployer or his officer, agent or servant, shall be absolutely void unless it 
shall also cover liability for the payment of the compensation provided 
by this chapter" (§ 54, cl. 4). There is a striking similarity between that 
clause and the phraseology of the proposed bill. The New York act was 
upheld by a well-reasoned opinion. While it is true that no special or 
specific attack was made upon the clause last cited, yet it is equally true 
that the entire act, including the clause in question, was sustained. Under 
such circumstances, it can hardly be said that the integrity of that clause 
was merely a question "lurking in the record." It is also difficult to con- 
ceive, in view of the eminence of counsel and the formidable character of 
the attack made, that anything worth while was overlooked. New York 
Central R.R. Co. v. White, 243 U. S. 188. 

The Legislature has power to prescribe the standard form of insurance 
policies. New York Life Ins. Co. v. Hardison, 199 Mass. 190, and may 
prescribe the extent of coverage and the risks included, Opinion of the 
Justices, 251 Mass. 569. We see no substantial difference between requir- 
ing compulsory insurance for the protection of travelers than we do in 
the right of the Legislature to protect employees and to prescribe a sys- 
tem of industrial insurance that will provide an adequate system of relief 
at the expense of industry and forbid them and their dependents from 
becoming pubfic charges. 

Accordingly, I am of the opinion that the proposed bill, if enacted into 
law, would not be unconstitutional. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Taxation — Taxes on Profits made from Real Prop- 
erty taken or bought hy the Commonwealth. 

A bill permitting the rate of taxation of profits derived from the taking 
or purchase of real property by the Commonwealth to be at a differ- 
ent rate from taxation of profits on other classes of property would 
not, if enacted into law, be unconstitutional. 

June 7, 1935. 

Philip Sherman, Esq., Chairman, House Committee on Bills in the Third 

Reading. 

Dear Sir : — Your committee has asked my opinion as to the consti- 
tutionality, if enacted into law, of House Bill No. 2084, entitled "An Act 
relative to the income taxation of gains from certain transactions in real 
property," which reads as follows: — 

"Chapter sixty-two of the General Laws is hereby amended by insert- 
ing after section seven, as appearing in the Tercentenary Edition, the 
following new section : — Section 7 A . Gains accruing to a person from 
the taking by eminent domain or purchase by the commonwealth, or by 
any political subdivision thereof, of real property for public purposes, 
provided such person acquired the same by purchase within a period of 
one year prior to such taking or purchase, shall be taxed at the rate of 
seventy-five per cent. Income received under this section shall, in case 
such damages or price was paid by a county, city, town or district, be 
remitted by the state treasurer to such county, city, town or district; 
otherwise it shall be retained by the commonwealth." 



P.D. 12. 77 

A tax on income derived from real estate is undoubtedly a tax on real 
estate. Pollock v. Farmers^ Loan & Trust Co., 157 U. S. 429, 581; Opin- 
ion of the Justices, 220 Mass. 613, 623, 624; DeBlois v. Commissioner of 
Corporations and Taxation, 276 Mass. 437, 439. All property taxes prior 
to the adoption of Mass. Const. Amend. XLIV were required to be pro- 
portional and reasonable, in accordance with the constitutional mandate 
(c. I, § I, art. IV) wherein "full power and authority are hereby given 
and granted" to the General Court "to impose and levy proportional and 
reasonable assessments, rates, and taxes, upon all the inhabitants of, and 
persons resident, and estates lying, within" the Commonwealth. Opiyiion 
of the Justices, 266 Mass. 583, 585. This provision required each citizen 
to contribute to the common burden in the ratio that the value of his 
property bore to the total value of all the property upon which the tax 
was laid. Such a basis for taxation was predicated upon the principle 
that the benefit which each person derives from the government has direct 
relation to the amount of property he possesses and enjoys under its 
sanction and protection. Oliver v. Washington Mills, 11 Allen, 268, 275; 
Opinions of the Justices, 195 Mass. 607, 613, and 220 Mass. 613, 618. 
A tax based upon one rate for realty and another rate for personalty, or 
which permitted different rates for personalty, was deemed to be viola- 
tive of this constitutional mandate. Opinion of the Justices, 208 Mass. 
616; Perkins v. Westwood, 226 Mass. 268. 

Mass. Const. Amend. XLIV was adopted and ratified by the people in 
November, 1915. It provided that — 

"Full power and authority are hereby given and granted to the gen- 
eral court to impose and levy a tax on income in the manner hereinafter 
provided. Such tax may be at different rates upon income derived from 
different classes of property, but shall be levied at a uniform rate through- 
out the commonwealth upon incomes derived from the same class of 
property." 

The previously existing limitation that property taxes should be pro- 
portional and reasonable was removed in so far as a proportional levy 
was involved. The amendment, however, substituted the requirement 
that the tax should be uniform instead of being proportional. 

The tax, however, must still be reasonable. There are many who 
believe that awards in eminent domain cases are excessive in many 
instances and far above the real market value as determined by the 
various boards of assessors, which are bound under the sanctity of their 
official oath to fix "the fair cash value," which has been construed to be 
the fair market value. See Massachusetts General Hospital v. Belmord, 
233 Mass. 190. Accordingly, the same identical standard of fair market 
value was the measure to be employed by both juries and assessors. 
Experience, however, shows that the valuations made by juries are usu- 
ally higher than those fixed by assessors. It was probably with this 
thought in mind that the provision was made for tentative takings, so as 
to protect municipalities from this tendency of jurors. See St. 1929, 
c. 380. In the next instance, at least the Legislature has the right to 
determine the rate at which a tax is to be assessed, and its determina- 
tion that the rate so fixed is a reasonable one is entitled to great weight 
with the Supreme Judicial Court, whose settled practice is to uphold 
the validity of a legislative act unless it is clear that it is contrary to 
constitutional provisions. Commonwealth v. S. S. Kresge Co., 267 Mass. 
145, 148; Kneeland v. Emerton, 280 Mass. 371, 383. However, there is 



78 P.D. 12. 

no place in our law for any confiscatory system of taxation or for "spoli- 
ation under the guise of exerting the power of taxing." Dane v. Jackson, 
256 U. S. 589, 598. 

With some hesitation, we think that the rate of seventy-five per cent, 
as provided by the proposed bill, may be deemed to be reasonable. 

In the absence of any limiting statute, the grant of power to classify 
includes the right not only to select the subjects of taxation but to de- 
termine the basis upon which such classification shall be made. If the 
principle applied affords a reasonable and just ground for the division of 
persons and property and bears a fair and substantial relation to the 
object of the legislation, then such a taxing scheme is valid. Any classifi- 
cation resting on a real difference is sufficient. BelVs Gap R.R. v. Penn- 
sylvania, 134 U. S. 232; Michigan Central R.R. Co. v. Powers, 201 U. S. 
245; Northwestern Mutual Life Ins. Co. v. Wisconsin, 247 U. S. 132; 
Ohio Oil Co. V. Conway, 281 U. S. 146; Tax Commissioners v. Jackson, 
283 U. S. 527. 

If, however, such classification is capricious, fanciful and arbitrary, or 
not predicated on real, substantial distinctions, or if the taxing power is 
exercised in the spirit of prejudice or favoritism, then such a scheme 
is contrary to the Fourteenth Amendment to the United States Consti- 
tution and to the pertinent amendment to our State Constitution. Mis- 
souri V Dockery, 191 U. S. 165; Cook v. Marshall County, 196 U. S. 261, 
274; Kansas City So. Ry. Co. v. Road Improvement District, 256 U. S. 
658; Louisville Gas Co. v. Coleman, 277 U. S. 32; Concordia Fire Ins. 
Co. v. Illinois, 292 U. S. 535. 

There is, however, a broader power of classification given to State 
Legislatures in matters of taxation than in many other fields of legisla- 
tion. A strictly correct mathematical classification is practically im- 
possible, although highly desirable, and the courts recognize that within 
reasonable bounds the Legislature may make those "discriminations 
which the best interests of society require." Citizens^ Telephone Co. v. 
Fuller, 229 U. S. 322, 331; Keeney v. New York, 222 U. S. 525; Stehhins 
v. Riley, 268 U. S. 137. 

Mass. Const. Amend. XLIV limits the Legislature to a tax which is 
both reasonable and uniform. Knights v. Treasurer and Receiver General, 
237 Mass. 493, 495. 

This constitutional mandate requires that "such tax may be at differ- 
ent rates upon income derived from different classes of property, but shall 
be levied at a uniform rate throughout the commonwealth upon incomes 
derived from the same class of property." The rate given in the proposed 
legislation is uniform and no inequality exists in that respect. Opinion 
of the Justices, 266 Mass. 583. In accordance with the amendment, an 
elaborate statutory system has been established, setting forth certain 
classifications of income taxable property with their respective rates of 
tax, and also deductions and exemptions. G. L. (Ter. Ed.) c. 62. This 
chapter, however, makes no provision taxing income derived from real 
estate, and no return is required to be filed in so far as rents are con- 
cerned. It is clear, however, that the word "income" is of sufficient 
significance to include not only rent but also any profits that may be 
acquired by a sale of the realty. Tax Commissioner v. Putnam, 227 Mass. 
522, 526, and that the Legislature, if it sees fit, might tax such income. If 
such procedure would result in double taxation, on the theory that a 
tax on income is really a tax on property, then the present bill could be 
readily amended by providing for a deduction from the tax due on an 



P.D. 12. 79 

income basis of the amount levied, assessed and collected upon a fair cash 
value of the property in accordance with G. L. (Ter. Kd.) cc. 59 and 60. 

The instant amendment permits the rate fixed for incomes derived from 
property to be higher than those on incomes derived from other sources. 
Profits derived from the purchase or taking of real estate by the public 
may, we think, be reached for income tax purposes although no provision 
is made to tax the profits arising from voluntary sales to private individuals. 
Public necessity and convenience require the acquisition of private prop- 
erty for public purposes. The exigencies of the public requiring certain 
parcels of realty ought not to be commercialized. The profits of real 
estate operators in securing unilateral options, binding only on the owners 
of property which they beheve will be taken, for the purpose of securing 
unconscionable profits through jury awards, should be curbed and ter- 
minated. The real occasion for the securing of such options is not merely 
the purchase of the real estate which, incidentally, the purchaser never 
intends to enjoy, but to secure a chance to bring a lawsuit for land damages. 
In fact, the latter is a predominating motive for securing such options in 
nearly every case. It is clear that the public welfare will be promoted 
by the elimination of those who speculate in such transactions to the great 
detriment of the public treasury. 

There is no constitutional requirement that, if the State tax profits 
derived from property purchased or taken by the public, it must tax profits 
from all sales or transfers of real estate, including those made to private 
individuals. Keeney v. New York, 222 U. S. 525; Citizens^ Tel. Co. v. 
Fuller, 229 U. S. 322, 332; Concordia Fire Ins. Co. v. Illinois, 292 U. S. 535. 

The impartial application of the same amounts and methods, resulting 
in the law operating equally and uniformly upon all persons under similar 
circumstances, so that all members of the same class receive like treatment, 
satisfies the rule of equality in so far as taxation is concerned. Kentucky 
Railroad Tax Cases, 115 U. S. 321, 337; Schlesinger v. Wisconsin, 270 U. S. 
230; Ohio Oil Co. v. Conway, 281 U. S. 146, 160. 

The present amendment was the result of a new theory prevailing in 
fixing another basis for taxation than upon the former principle of valua- 
tion of the property tax, and to substitute therefor a system that will 
place the burden upon the citizen to such extent in accordance with his 
ability to pay. Opinion of the Justices, 270 Mass. 593, 599, 600. If that 
principle is to be applied to the rate mentioned in the present bill, it then 
is apparent that there is no such disparity between the burden imposed and 
the benefits received so great as to amount to a palpable inequality or to 
indicate a classification not resting upon a rational basis. 

The words of the amendment are not to be given an entire or restricted 
interpretation, but are to be understood in their common and ordinary 
signification, especially where, as here, we are concerned with the exercise 
of one of the great prerogatives of a sovereign power. Raymer v. Tax 
Commissioner, 239 Mass. 410; Attorney General v. Methuen, 236 Mass. 
564, 573. 

Even though the resulting tax may be both unequal and disproportion- 
ate, yet it is valid and permissible under the instant amendment if it is 
reasonable and uniform. Knights v. Treasurer and Receiver General, 237 
Mass. 493, 495; Opinion of the Justices, 266 Mass. 583. 

I am therefore of the opinion that the proposed bill, altered as above 
indicated, would not be unconstitutional if enacted into law. 

Very truly yours, 

Paul A. Dever, Attorney General. 



80 P.D. 12. 

Municipalities — Authority — Appropriations — Gratuities. 

Municipalities have no power to appropriate and pay money as for 

gratuities. 

June 10, 1935. 

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

Dear Sir : — You have requested my opinion relative to the validity 
of St. 1935, c. 130. 
This act provides: — 

"The city of Somerville may appropriate such sums, not exceeding, in 
the aggregate, fourteen thousand dollars, for use of the school savings 
bank of said city in paying to each depositor in such bank a sum equiva- 
lent to that part of the amount standing to his credit on the pass book 
issued to him by said city which was deposited by said school savings 
bank in the Somerville Institution for Savings on or before February 
second, nineteen hundred and thirty-two. All dividends received by or 
on behalf of said city on account of deposits made in said institutions for 
savings in the name of 'school savings bank city of Somerville' shall be 
paid forthwith into the treasury of said city." 

The object of this legislation is apparently to save the school children 
of Somerville from any loss on their deposits made in the Somerville Institu- 
tion for Savings, which is now in process of liquidation by the Commis- 
sioner of Banks, and to transfer any loss of these depositors to the city of 
Somerville. The situation presents a hardship to school children who can, 
undoubtedly, ill afford to bear any such loss in their deposits, no matter 
how meagre they might be, and will probably shake the confidence of 
these children in the lessons of thrift and economy which were evidently 
instilled into their minds by their teachers, and which resulted in their 
making the deposits in question. The case presents a real hardship and 
warrants genuine sympathy. The validity of the legislation, however, 
must be measured by a different standard. 

It is familiar law that money raised by taxation constitutes a public 
fund, which can only be expended for public purposes. While there has 
been a tendency to include within the sweep of public purposes awards to 
certain persons who have rendered valuable and faithful public service, on 
the theory that such expenditure essentially promotes the public welfare 
and that aid to a particular individual is merely incidental, as "the public 
welfare alone must be the ground, as it is the only legal justification, for 
this kind of payment," Opinions of the Justices, 175 Mass. 599, 602, and 
240 Mass. 616, yet, where the predominating purpose of the enactment 
demonstrates that the payments required to be made are not "anj-thing 
else than 'mere gratuities or gifts to individuals,'" Opinion of the Justices, 
211 Mass. 608, 615, or "where the only pubhc advantage is such as may be 
incident and collateral to the relief of a private citizen," Opinion of the 
Justices, 175 Mass. 599, 602, 603, then it is clear that the General Court has 
no power to enact such legislation. " Municipahties have no power to 
appropriate money as gratuities to any persons, no matter how strongly 
public sympathy may be moved in their favor." Whittaker v. Salem, 216 
Mass. 483; Lowell v. Boston, 111 Mass. 454; Alead v. Acton, 139 Mass. 341. 

Accordingly, I am of the opinion that St. 1935, c. 130, transcends the 
power of the General Court and is invalid. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 81 

Alcoholic Beverages Control Commission — Licenses — Local Licensing 

Board — Appeal. 

One not licensed as a common victualler cannot sustain an appeal from the 
refusal of a local licensing board to grant him a license to sell alcoholic 
beverages. 

Only applicants for a license to sell alcoholic beverages have a right of 
appeal under G. L. (Ter. Ed.) c. 138, § 67, as amended. 

June 21, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You seek my opinion relative to the interpretation of 
certain provisions of G. L. (Ter. Ed.) c. 138 (as appearing in St. 1933, 
c. 376, § 2, as amended), and you ask two questions: — 

"1. Does the wording of the first sentence of section 67 permit an appli- 
cant who does not possess a common victualler's license the right to appeal 
to this Commission for an alcoholic beverage license? 

2. Does the wording which says, 'Any applicant for a license who is 
aggrieved by the action of the local licensing authorities in refusing to grant 
the same, etc.,' mean any license of any nature in connection either with the 
right to sell food as a common victualler or alcoholic beverages, or even 
entertainment?" 

In connection with the foregoing questions you submit certain facts as 
pertinent to your inquiry. From an examination of the facts it appears 
that an appellant to your Commission, claiming to be aggrieved by the 
action of local licensing authorities, had made application in the early part 
of 1934 to the local licensing authorities for a license to sell wines and malt 
beverages at certain premises where he was at the time of his application 
duly licensed as a common victualler. This application for license to sell 
wines and malt beverages was denied by the local licensing authorities on 
April 12, 1934. On Maj^ 1, 1934, the appellant applied to the local licensing 
authorities for a renewal of his license as a common victualler. The local 
licensing authorities, apparently overlooking a statutory change with 
reference to the date of expiration of licenses of common victuallers, granted 
to your appellant a common victualler's license on June 4, 1934, which said 
license, under its express terms, was to extend to April 30, 1935. Under a 
change in the statutory law of the Commonwealth provision had been 
made that all licenses as common victuallers shall expire on the same date 
in each year, namely, December thirty-first (St. 1934, c. 171). On Decem- 
ber 28, 1934, the appellant again applied for a license to sell wines and malt 
beverages. This application was denied by the local licensing authorities, 
the reason assigned by them for such denial being that the appellant had 
not advertised his application in a newspaper. Upon appeal to your Com- 
mission from the action of the local licensing authorities this appeal was 
denied on April 5, 1935, without prejudice, the reason assigned for such 
denial being the fact that the appellant had failed to advertise his applica- 
tion. 

The business of being a common victualler is regulated and licensed under 
G. L. (Ter. Ed.) c. 140 (as amended by St. 1933, c. 92, and St. 1934, c. 171). 
Before the amendment by St. 1934, c. 171, licenses of common victuallers 
expired on April thirtieth of each year. Such licenses could be granted in 
other months than April, but the date of expiration in all cases would 
remain as April thirtieth next following the date of the granting of a license. 
G. L. (Ter. Ed.) c. 140, § 4. Cheney v. Coughlin, 201 Mass. 204. 



82 P.D. 12. 

Under the provisions of St. 1934, c. 171, amending G. L. (Ter. Ed.) 
c. 140, § 4, the date of expiration of all licenses of innholders and com- 
mon victuallers was made coterminous with the date of expiration of all 
licenses for the sale of alcoholic beverages, namely, December thirty-first 
of each year. This act bore the emergency preamble and was approved 
by the Governor on April 27, 1934. 

The words "common victualler" have been defined to mean the keeper 
of a restaurant or public eating house. "Because of the nature of the 
business, the keeper of such a place must be licensed by the proper au- 
thorities, and is required by statute at all times to be provided with 'suit- 
able food for strangers and travellers,' and to have 'upon his premises the 
necessary implements and facilities for cooking, preparing and serving 
food for strangers and travellers.'" G. L. (Ter. Ed.) c. 140, §§ 2, 5 and 6. 
Commonwealth v. Meckel, 221 Mass. 70, 72. 

G. L. (Ter. Ed.) c. 138 (St. 1933, c. 376, § 2), defines a restaurant as a 
"space, in a suitable building, leased or rented or owned by a person 
holding a duly issued and valid license as a common victualler under the 
provisions of said chapter one hundred and forty, and provided with ade- 
quate and sanitary kitchen and dining room equipment and capacity for 
preparing, cooking and serving suitable food for strangers, travelers and 
other patrons and customers, and in addition meeting and complying 
with all the requirements imposed upon common victuallers under said 
chapter one hundred and forty." 

G. L. (Ter. Ed.) c. 138 (St. 1933, c. 376, § 2), provides: "A common 
victualler duly licensed under chapter one hundred and forty to conduct 
a restaurant . . . may be licensed by the local licensing authorities . . . 
to sell to travelers, strangers and other patrons and customers . . . 
such beverages to be served and drunk, in the case of a hotel or restaur- 
ant licensee," in dining rooms and other places designated within the 
compass of the statute. 

On the facts stated by you in your communication the inference is 
drawn that when the applicant sought a license to sell wines and malt 
beverages, on December 28, 1934, he was duly licensed as a common 
victualler. That license, however, as common victualler expired by 
operation of law on December 31, 1934, and at the time of the appeal on 
January 2, 1935, and at the time your Commission denied his appeal on 
April 5, 1935, he was not entitled as a matter of law to a license to sell 
wines and malt beverages, because it appears that he was not licensed after 
December 31, 1934, as a common victualler. 

It is clear from the foregoing that a common victualler licensed under 
G. L. (Ter. Ed.) c. 140, as amended, is one of a class to which a license 
may be granted under the sanction of G. L. (Ter. Ed.) c. 138, as amended, 
to sell alcoholic beverages. To be eligible to a license to sell alcoholic 
beverages in a restaurant, the applicant must show that he is duly li- 
censed as a common victualler under the provisions of G. L. (Ter. Ed.) 
c. 140, as amended. 

In view of all of the foregoing I answer your two questions as follows : — 

Interpreting your first question as relating exclusively to the facts set 
forth in your communication, my opinion is that if an applicant for a li- 
cense to sell alcoholic beverages in a restaurant was denied such a license 
by the local licensing authorities, and if upon his appeal to j^our Commis- 
sion it appeared that such appellant was not licensed as a common vict- 
ualler, the only course you could validly take would be to dismiss the 
appeal, as you would have no jurisdiction to act otherwise in the premises. 



P.D. 12. 83 

In answer to your second question, my opinion is that the words "any 
applicant for a license" must be interpreted to mean any applicant for a 
license to sell alcoholic beverages. Only applicants for licenses author- 
ized by the terms of G. L. (Ter. Ed.) c. 138, as amended, come within the 
sweep of the language quoted from section 67 of that chapter. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages Control Commission — License — Bankruptcy — 

Assignee. 

Liquor licenses do not constitute property passing to a trustee in bank- 
ruptcy. 

Authority may be given to operate the business, until the end of the li- 
censed period, to a receiver, trustee or assignee. 

July 3, 1935. 

Alcoholic Beverages Control Com,mission. 

Gentlemen: — You request an opinion on the following matters: — 

"1. If bankruptcy proceedings should ensue, would the receiver or 
trustee in bankruptcy have the right to continue to conduct the licensed 
business under the license issued for such manufacture or sale of alcoholic 
beverages? 

2. If the receiver or trustee in bankruptcy has no right to carry on the 
licensed business for the manufacture or sale of alcoholic beverages, or if 
such receiver or trustee chooses not to carry on the licensed business, 
what becomes of the license? Does it belong to the licensee and may it 
continue to be exercised by him, either on the licensed premises or, by 
virtue of an approved transfer, on some other premises? 

3. If such licensee should make an assignment for the benefit of credi- 
tors, would the assignee for the benefit of creditors have the right to 
carry on the licensed business? If not, would the licensee still own the 
license, and might he continue to conduct the business under it, either by 
some arrangement on the licensed premises or by an approved transfer 
on some other premises? 

4. Has the receiver or trustee in bankruptcy the right to continue the 
conduct of the business to the end of the license year, or must he dispose 
of the business and assets of the licensee as early as practicable in the 
winding up of the licensee's business?" 

A license to sell intoxicating liquor is a mere privilege, to be enjoyed 
during the term mentioned in the license, providing that the conditions 
and restrictions therein contained are complied with. A liquor license is 
a mere personal privilege revocable at will or, as expressed in the enabling 
act, it is "a, permit revocable at pleasure and without any assignment of 
reasons therefor" (G. L. [Ter. Ed.] c. 138, § 23, inserted by St. 1933, 
c. 376, as amended). Such a license continues only so long as the licensing 
authorities believe it is consistent with the public interests. They can 
be granted only to those found qualified to exercise the privilege therein 
conferred and who are found likely to observe the pertinent provisions of 
law. The inherent nature of such a grant does not render it an appropriate 
subject of traffic, barter or sale. In a sense, one of the essential elements 
of such a license is a certain degree of trust and confidence which is im- 
posed by a public board upon the licensee, and the licensing authorities 
are given full power to deny such a permit to one who, in their opinion, 



84 P.D. 12. 

is not qualified to receive it or, after it is granted, to one who has shown 
that he is guilty of a breach of trust in violation of the terms of his license. 

A liquor license is not so intrinsically connected with a business or the 
use of land that it can be said to become a part thereof, and, consequently, 
to pass as a transfer of the business or of the premises. Quinn v. Middle- 
sex Electric Light Co., 140 Mass. 109; Lowell v. Archamhault, 189 Mass. 
70, 72; General Baking Co. v. Street Cojyimissioners, 242 Mass. 194; Simon 
V. Meyer, 261 Mass. 178, 183. 

A liquor hcense being a mere personal privilege, issued because the 
licensee was found to be personally qualified, and subject to revocation 
if for any reason the person to whom it was granted was personally unable 
to continue in accordance with its terms, it is clear that such a privilege 
is neither assignable at common law nor transferable to a trustee in bank- 
ruptcy. Commonwealth v. Lavery, 188 Mass. 13, 14; Kennedy v. Welch, 
196 Mass. 592, 595. 

Strictly speaking, the personal representatives of a deceased licensee or 
his assignee or a trustee in bankruptcy can acquire no right, title or in- 
terest in a liquor license, as such. 

Under former enactments, the licensing authorities in a few cities in 
this Commonwealth have permitted a transfer of the license to third 
persons and have, by their conduct, considered the license a salable asset. 
Such a usage in this State is referred to in the case of Magullion v. Magee, 
241 Mass. 360, 367, where it appeared from the record that pocket hcenses, 
so called, "were currently worth about $12,000." This practice upon the 
part of the licensing authorities to permit what is virtually a sale of the 
license by the trustee in bankruptcy has been before the Federal court on 
numerous occasions, wherein it has been stated as settled law that liquor 
licenses, having been authorized and issued under the police power of the 
State, do not constitute property passing to the trustee in bankruptcy; 
but where it appears that such a license has a recognized value for transfer 
purposes, and that such a transfer is permitted by the licensing authori- 
ties, then the trustee in bankruptcy can recover the transfer value of such 
a Hcense. Fisher v. Cushman, 103 Fed. 860; In re Beahn, 212 Fed. 762. 

Whether there is a present custom or usage on the part of the licensing 
authorities permitting a transfer of a liquor license under the present law, 
we do not know. There is, however, a provision in our license laws wherein 
the licensing authorities may increase the amount of the license fee where 
it appears in either probate or bankruptcy proceedings that the license 
heretofore granted had ''acquired any monetary value in excess of the 
license fee" (§ 23). It may be that this provision was added on the as- 
sumption that the custom above referred to was to be continued under 
the present law. There is, however, another provision in the licensing 
act providing for the manufacture, keeping and sale of intoxicating liquor 
by a trustee in bankruptcy or by a common law assignee. This provision 
is found in G. L. (Ter. Ed.) c. 138, § 2 (as appearing in St. 1933, c. 376, 
as amended). This section was evidently passed upon the assumption 
that rights granted under a license were not transmissible or transferable. 

I am therefore of opinion that the right to conduct the licensed business 
does not pass to the receiver or trustee in bankruptcy or to the common 
law assignee; and that such officers may be authorized, under the pro- 
vision last above referred to, to continue the business, although in no case 
does the license pass as an asset of the estate. It would further seem that 
the license continues as a personal privilege of either the assignor or the 



P.D. 12. 85 

bankrupt, as the case may be, until the end of the licensed term, unless 
the licensing authorities may exercise the power imposed upon them by 
law and formally revoke the license. 

Very truly yours, 

Paul A. Dev^er, Attorney General. 

Secretary of the Commonwealth — Corporation — Illegal Purpose — Charter. 

A corporation formed for the purpose of acting for others in betting money 
on races is not entitled to the issuance of a charter. 

July 19, 1935. 

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

Dear Sir: — You request an opinion of me as to whether or not you are 
obliged to issue a charter for a corporation the purpose of which you state 
to be as follows : — 

"To receive money as agent from any and all persons for the purpose of 
betting the same according to the instructions of said persons, and for a 
consideration to bet said money on behalf of the person depositing the 
same and as his agent, at any race course where betting may be legal, 
either within the Commonwealth or without the same, said betting within 
the Commonwealth to be conducted in accordance with the provisions of 
chapter 374, Acts of 1934, and any acts in amendment thereof; to receive 
any moneys won on said betting on behalf of said persons, to do all things 
which may be necessary or convenient for the purpose of carrying out the 
aforesaid; to buy, sell, rent, lease, hold or otherwise deal in any real estate 
reasonably incidental to the carrying out of the aforesaid purposes, and to 
do any other business which any corporation may be organized to do under 
the provisions of chapter 156 of the General Laws of the Commonwealth of 
Massachusetts." 

The recent statute governing horse and dog racing in this Common- 
wealth expressly prohibits any form of gambling other than the so-called 
pari-mutuel or certificate method of wager, and, further, confines such 
wager to the place of the race meeting. This statute also makes the licensee 
of the meeting a custodian for the funds, and imposes upon him the duty to 
pay the winning patrons, after making certain specified deductions. 

It is unnecessary to determine whether the operation of the proposed 
corporation would be contrary to the spirit or letter of our statutes govern- 
ing horse and dog racing, because it is clear that the performance by a 
corporation of the aforesaid purposes, in the manner therein designated, 
would constitute a violation of G. L. (Ter. Ed.) c. 271, § 17, which definitely 
inhibits the doing by the corporation of the things above designated. 

I am therefore of the opinion that you are not legally obliged to issue a 
charter to enable a corporation to carry out the above-proposed purposes. 

Very truly yours. 

Paul A. Dever, Attorney General. 



86 P.D. 12. 

Alcoholic Beverages Control Commission — License — Population of a 

Town. 

Selectmen are authorized to grant a seasonal license for the sale of intoxi- 
cating liquor, under G. L. (Ter. Ed.) c. 138, §§ 12 and 15, if the popula- 
tion of their town, as of July 10, 1935, is as large as specified in sec- 
tion 17 of said chapter 138. 

July 24, 1935. 

Alcoholic Beverages Control Commission. 

Gentlemen : — You inform me that on November 6, 1934, the citizens 
of Charlemont voted "no" on the question of authorizing the granting 
of a license for the sale of intoxicating liquor for the calendar years 1935 
and 1936; and that, although the licensing authorities did not estimate 
prior to April 1, 1935, the temporary resident population as of July 10, 
1935, they now desire to issue a seasonal license. You request an opinion 
whether such failure to make said estimate of the temporary population 
deprives the board of selectmen of authority to issue a seasonal license. 

G. L. (Ter. Ed.) c. 138, § 17, as amended, in so far as now material, 
provides : — 

"In any city or town which has an increased resident population during 
the summer months, the local licensing authorities may make an estimate 
prior to April first in any year of such temporary resident population as of 
July tenth following, and one additional license, under section twelve to 
be effective from April first to October thirty-first, only, may be granted 
for each unit of one thousand, or additional fraction thereof, of such popu- 
lation as so estimated, and one additional license under section fifteen to be 
effective from April first to October thirty-first, only, may be granted for 
each population unit of five thousand or additional fraction thereof, of 
such population as so estimated." 

The selectmen of the town of Charlemont were authorized to hold a 
special town meeting in the current year to permit the inhabitants to vote 
anew on the question of issuing licenses for intoxicating liquors in the said 
town, and the result of the vote at the said special town meeting should 
have the same effect as if taken in the State election of the preceding 
November. 

It should be noted, in the first place, that this act did not become 
effective sooner than May 23, 1935, and that the town, in the preceding 
November, voted not to grant hcenses. There was prior to May 23, 
1935, no occasion for making an estimate of what the temporary popu- 
lation would be on the following July tenth. Moreover, the act last men- 
tioned expressly provided that the votes at the special town meeting, 
which could only, of course, be held subsequent to the effective date of 
the act, "shall have the same force and effect from and after said meet- 
ing as if taken at the last biennial state election." 

Accordingly, the licensing authorities could not be reasonably ex- 
pected to comply literally with the provisions of section 17 by making 
the estimate prior to April 1, 1935. The Legislature, however, did not 
intend that such an estimate should be made in the town of Charlemont 
at a time when the vote of November 6, 1934, was still binding on the 
town and when it was uncertain that any legislation would be enacted 
to permit a special town meeting. It is inconceivable that the Legisla- 
ture intended to give authority to the board of selectmen of Charlemont 
to grant licenses for the sale of intoxicating liquors by an act which, on 



P.D. 12. 87 

account of the last-mentioned provisions of section 17, could never during 
1935 become operative in that town. 

Barrenness of accomplishment must never be impiited to the legislative 
branch of our government. The authority of the board of selectmen as 
the licensing authority of the town of Charlemont to grant licenses, in- 
cluding seasonal licenses, is predicated on the result of the vote of June 6, 
1935, and the instant question now calling for decision must be decided 
as if this last-mentioned vote had been taken on November 6, 1934. 

It is familiar law that the time within which an act is prescribed to 
be performed by a municipal officer or board is usually directory only, 
and that statutes defining the time of performance are ordinarily con- 
strued as not imposing any limitation upon the authority of such officer 
or board. Consequently, the performance of the act at a time other 
than that designated in the statute has been held to be valid. Pond v. 
Negus, 3 Mass. 230. Williams v. School District, 21 Pick. 75. Russell 
V. Welliyigton, 157 Mass. 100. Rutter v. White, 204 :Mass. 59, 61. Ashley 
V. Three Justices, 228 Mass. 63. Trustees, Andover Seminary v. Visitors, 
Phillips Academy, 253 JNIass. 256. 

This riilgL jjf law has found frpg npnt appHcatio n in c ontested electi on 
cases. wTiere the tendencv of the cour t has been to declare the statutory 
provision s a^befa^ directory or pernri ,ssi\^ whenever reasonably p. ossible 
to~-do so. In "order hot to diselifranchise a voter or to nullify the ex- 
pressed will of the majority, likewise the vote of the town meeting of 
June 6, 1935, should be considered effective unless in violation of some 
mandator}^ provision of law. J ^ackmer v. Hildrefh, 181 Mass^ 29. Ray 
V. Registrars of Voters of Ashlami, 221 Mass. 223. Parrott v. Plunkett, 
268 Mass. 202. Swift v. Registrars of Voters of Quincy, 281 Mass. 271. 

The previous statutes governing the sale of intoxicating liquor pro- 
vided that the licensing board "may, in April, grant such licenses, to 
take effect on the first day of May following." R. L. c. 100, § 12. It has 
been expressly decided that the exercise of authority in April was not a 
condition precedent to the validity of the issuance of a Ucense, and that 
a license granted in May was effective. Cheney v. Coughlin, 201 Mass. 204. 

In principle the case last cited seems to govern the present situation. 
Both section 17 of said chapter 138 and St. 1935, c. 281, must be con- 
strued together to form, if possible, one harmonious legislative program. 
The Legislature, in enacting chapter 281, must have had in mind the pro- 
visions of said section 17. 

Accordingly, the time within which the board of selectmen, as the 
licensing authorities of the town of Charlemont, should make an esti- 
mate of the temporary population on the following July tenth is merely 
directory. In fact, they are better able now to make a more correct 
approximation of this temporary population than they were prior to 
April 1, 1935. 

If the applicant is willing to now accept and pay for a seasonal license, 
which must expire October thirty-first, he cannot complain that he did 
not have the use of his license during the entire period from April 1, 1935. 

I am therefore of the opinion that the selectmen of Charlemont are 
authorized to grant a seasonal license of the kind described in sections 
12 and 15 of chapter 138, provided the estimated population of the town, 
as of July 10, 1935, is sufficiently large to meet the numerical require- 
ments of said section 17. 

Very truly yours, 

Paul A. Dever, Attorney General. 



88 P.D. 12. 

Registration in Medicine — Applicant — Degree — Equivalent. 

July 24, 1935. 
Board of Registration in Medicine. 

Gentlemen: — There being a vacancy in the position of Director of the 
Board of Registration in Medicine, your Board, through its secretary, has 
in substance asked me to advise you as to whether you may accept a certain 
document signed by the dean of the medical faculty of a German university, 
— to the effect that one who is an applicant for registration as a physician 
in Massachusetts has passed his examinations in said university and that 
on the basis of such examinations he would be entitled to a doctor's degree 
in medicine, but that under a recent law of Germany such applicant can- 
not be given the degree by said university because he is a "non- Aryan", — 
as the "equivalent" of such degree, as the word "equivalent" is used in 
G. L. (Ter. Ed.) c. 112, § 2, in the following portion: — 

"Each applicant who shall furnish the board with satisfactory proof that 
... he has received the degree of doctor of medicine, or its equivalent, 
from a legally chartered medical school having the power to confer degrees 
in medicine, . . . shall be registered." 

The words "its equivalent," as used in said section 2 as quoted above, 
refer to the medical degree and not to the characterization of the medical 
course as of "four years of thirty-two weeks each," made later in the 
section, and I am of the opinion that as a matter of law you may, if it ac- 
cords with your judgment as to the facts, accept the said document, under 
the circumstances as to which you have advised me, as the equivalent of a 
degree of doctor of medicine. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Hunting — Cities and Towns — Regulation. 

July 25, 1935. 
Hon. Samuel A. York, Commissioner of Conservation. 

Dear Sir: — You have asked my opinion on the following questions: — 

"1. Can a city or town legally prohibit hunting within its limits, not- 
withstanding an open season prescribed by the Legislature? 

2. Can a city or town place restrictions upon hunting within its limits, 
in addition to those provided in the State laws by the Legislature, in the 
nature of requiring written or oral permission from landowners or public 
officials?" 

I answer both questions in the negative. 

The several cities and towns are agencies of the government, largely 
under the control of the Legislature. The powers and duties of cities and 
towns, except so far as they are specially provided for in the Constitution, 
are created and defined by the Legislature. The Legislature has from time 
to time conferred upon cities and towns power to make b3Maws for the 
direction and management of their prudential affairs, and for other well- 
defined purposes. See G. L. (Ter. Ed.) c. 40, § 21. The Legislature has 
from time to time also conferred upon cities and towns authority to make 
by-laws in addition to those authorized in said section 21 of chapter 40. 
It is unnecessary to enumerate them here. It is sufficient to say that the 



P.D. 12. 89 

Legislature has not conferred authority on cities and towns to regulate 
hunting within the Commonwealth or the subdivisions thereof. 

The right to regulate hunting within the Commonwealth rests wholly in 
the Legislature. Any attempt by a city or town to regulate hunting would 
be beyond the scope of authority conferred on cities and towns by the 
Legislature. 

Yours very truly., 

Paul A. Dever, Attorney General. 

Milk — Legal Standard — Solids — Fat. 

Prosecutions may be made under G. L. (Ter. Ed.) c. 94, § 37, if milk be 
below the legal standard, either as to solids or fat. 

July 31, 1935. 
Hon. Edgar L. Gillett, Commissioner of Agriculture. 

Dear Sir: — You have asked my opinion on the following question, to 
wit: Whether prosecution may follow, under G. L. (Ter. Ed.) c. 94, § 37, 
in cases where milk is found to be below the legal standard for milk solids 
and milk fat separately, or whether, in order to prosecute, it must be found 
to be below the standard in both respects. 

The word "and" when used in a criminal statute is construed as ''or" 
when the spirit and reason of the law require and justify it. While the 
words are not strictly interchangeable, they are regarded as convertible 
if the sense so requires, even in a criminal statute, where strict construc- 
tion usually prevails. 

The purpose of the statute in question is to secure to the public milk 
attaining a certain standard of purity and strength. It is intended to pro- 
tect the public from purchasing milk naturally deficient rather than milk 
which has been adulterated or milk from which cream has been removed. 

To construe the word "and" as used in the conjunctive sense would be 
to defeat the purpose of the statute, as it would permit the sale of milk 
below the standard in solids provided it was up to the standard in fat, and 
vice versa. 

In my opinion, the word "and" in this statute is used in the disjunctive 
sense, and, if milk is found to be deficient in either solids or fat, prosecution 
may follow. 

Yours very truly, 

Paul A. Dever, Attorney General. 

Labor — Weekly Wages — Private Charitable Institutions. 

Private charitable institutions, hospitals and banks come within the pro- 
visions of St. 1935, c. 350, relative to the payment of wages weekly. 

Aug. 6, 1935. 

Miss Mary E. Meehan, Acting Commissioner of Labor and Industries. 

Dear Madam: — You have requested my opinion as to "whether em- 
ployees in private charitable institutions, private hospitals and banks" 
come within the provisions of St. 1935, c. 350. I am of the opinion that 
they are included. 

G. L. (Ter. Ed.) c. 149, § 148, as amended by St. 1932, c. 101, § 1, 
which is the section that the new statute supersedes, limits the applica- 



90 P.D. 12. 

tion of the law pertaining to the payment of weekly wages to certain 
designated industries. The changes in the new section are sweeping, and 
it now applies to all industries with the exception of agricultural work 
and domestic service. The provision applicable to the departments, of- 
ficers, boards and commissions, employees, mechanics, workmen and 
laborers of the Commonwealth, providing for payment on other than a 
weekly basis when the employees themselves request in writing, is the 
only exception to the act. There is no provision exempting the institu- 
tions set forth in your communication; consequently, when St. 1935, c. 350,. 
becomes effective it will be necessary for them to pay weekly wages. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Emergency Finance Board — Loans on Tax Titles — Commonwealth. 

A loan to a municipality on a tax title, under St. 1933, c. 49, § 2, cannot 
be authorized until the collector's deed has been executed and 
recorded. 

Aug. 7, 1935. 

Emergency Finance Board. 

Gentlemen: — You have requested my opinion on the following- 
question : — 

"Whether the Emergency Finance Board can authorize a loan from the 
Commonwealth in a sum not exceeding the aggregate of the tax titles, 
taken or purchased in a city or town, recorded in their books as such, at 
a time when the tax collector's deeds have not been recorded with the 
registry of deeds." 

I am of the opinion that your Board cannot authorize a loan under such 
conditions. The statute in question, St. 1933, c. 49, § 2, contains the fol- 
lowing language : — 

"and the board may, if in its judgment the financial affairs of such city or 
town warrant, grant its approval to the borrowing as aforesaid, of speci- 
fied sums not at any time exceeding, in the aggregate, the total amount 
represented by tax titles taken or purchased by such city or town and held 
by it; . . ." 

The determining factor is the construction of the words "and held by 
it." Had the Legislature intended to confer upon cities and towns power 
to borrow money at the time of the taking or at the time of the purchase^ 
they could well have omitted the words "and held by it." I am of the 
opinion, however, that they contemplated something further to be done 
by the cities and towns. Titles based upon tax sales are closely scrutinized. 
Exact compliance with the provisions of the statute is necessary. 

G. L. (Ter. Ed.) c. 60, § 45, provides that the deed of the collector of 
taxes shall not be valid unless recorded within sixty days after the sale. 
This provision of the statute is clear; it is mandatory; it requires that 
the deed must be recorded within sixty days after the auction sale, and 
the collector's deed does not convey title unless this requirement is com- 
plied with. See the case of Wood v. Wilson, 256 Mass. 340. 

The acts necessary for the establishment of a good tax title in a munici- 
pality are many. It is unnecessary to enumerate them here. It is suf- 
ficient to say that the basis for the establishment of a good tax title is 
not complete until the collector's deed is recorded, and then only when 



P.D. 12. 91 

all other requirements of the statute are met with precision. A tax title 
is not held by the city or town until the collector's deed is duly executed 
and recorded, and, under the act, your Board cannot authorize a loan 
until this is done. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Sentence — Parole — Payment of Fine. 

An inmate of the State Prison may be held in custody after he has been 
given a permit to be at liberty by the Board of Parole subject to 
the payment, in the manner authorized by G. L. (Ter. Ed.) c. 127, 
§ 144, of a fine which was part of the original sentence. 

Aug. 9, 1935. 
Hon. Arthir T. Lymax, Commissioner of Correction. 

Dear Sir: — You ask my opinion relative to the right of the warden 
of the State Prison to hold an inmate of the State Prison in custody after 
he was given a permit to be at liberty by the Board of Parole subject 
to the payment of a fine which had been imposed by the court as a part 
of his sentence. As I interpret the facts set forth in your communication 
they are as follows: On November 10, 1932, a defendant was sentenced, 
for the crime of abortion, in the Superior Court at Boston to a term of 
two and one-half to four years in State Prison and to pay a fine of two 
hundred and fifty dollars. On May 9, 1935, he was given a permit to be 
at liberty by the Board of Parole on condition that the fine of two hun- 
dred and fifty dollars be paid. The prisoner has no money with which 
to pay the fine. Three months after the date of his permit to be at lib- 
erty, he being still held in custody, he was brought before the j\Iunicipal 
Court of the City of Boston, under the provisions of G. L. (Ter. Ed.) 
c. 127, § 146, to be discharged if unable to pay the fine because of lack 
of means. The clerk of the court refused to present the matter to a 
justice of the court for action, on the ground that G. L. (Ter. Ed.) c. 127, 
§ 146, had application only to prisoners confined in common jails and 
houses of correction, and that the court had no jurisdiction in the prem- 
ises. 

G. L. (Ter. Ed.) c. 272, § 19, under which the prisoner was sentenced 
to State Prison, provides that upon conviction of the crime of abortion, 
where the woman does not die in consequence thereof, the penalty shall 
be "by imprisonment in the state prison for not more than seven years 
and by a fine of not more than two thousand dollars." In the instant 
case the court imposed a sentence of not less than two and one-half years 
nor more than four years and a fine of two hundred and fiftj^ dollars. 
This fine is a part of the sentence. It is not separable from it. In im- 
posing sentence the court followed the requirements of the statute. 

G. L. (Ter. Ed.) c. 127, § 144, provides: — 

"A prisoner confined in a prison or place of confinement for non- 
payment of a fine or a fine and expenses shall be given a credit of fifty 
cents on such fine or fine and expenses for each day during which he shall 
be so confined, and shall be discharged at such time as the said credits, 
or such credits as have been given and money paid in addition thereto, 
shall equal the amount of the fine or the fine and expenses; and in such 



92 P.D. 12. 

case no further action shall be taken to enforce payment of said fine or 
fine and expenses." 

G. L. (Ter. Ed.) c. 127, § 146, as amended by St. 1932, c. 221, con- 
cerning the discharge of poor prisoners who are unable to pay fines, by 
the clear import of its terms relates only to prisoners confined in com- 
mon jails and houses of correction. 

I am therefore of the opinion that so long as the fine remains unpaid 
the warden of the State Prison is required, under the law, to hold the 
inmate in custody subject to the provisions of G. L. (Ter. Ed.) c. 127, 
§ 144, hereinbefore set forth. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Minimum Wage Commission — Authority — Public Employees — Private 

Employees. 

Under G. L. (Ter. Ed.) c. 151, the Commission has no authority with 
relation to employees of political subdivisions in the public service, 
nor of institutions under public control. 

Aug. 21, 1935. 

Miss Mary E. Meehan, Acting Commissioner of Labor and Industries. 

Dear Madam : — You inform me as to the creation of a wage board 
under the new chapter 151 of the General Laws, which was inserted by 
St. 1934, c. 308, and inquire whether it is "within the power and authority 
of the Minimum Wage Commission to approve and transmit to the Com- 
missioner, the Commissioner in turn to include within the scope of a 
directory order establishing minimum fair wage rate for women and 
minors . . ., employees in hospitals or other institutions established and 
maintained by the State, county or municipality, or maintained in whole 
or in part by contributions from State, county or municipal funds or by 
public or private donations and contributions." 

It has always been the law in this State that the Commonwealth can 
be impleaded in its own courts only in the manner and to the extent ex- 
pressly prescribed in the statutes. Nash v. Commonwealth, 174 Mass. 
335; McArthur Brothers Co. v. Commomvealth, 197 Mass. 137; Glickman 
V. Co77imonwealth, 244 Mass. 148. The chapter in question is utterly 
barren of the slightest indication of any legislative intent to include within 
its sweep employees of the Commonwealth. 

Employees of counties, cities and towns are in the public service. Stat- 
utes governing employees in general have usually been construed as not 
to include public employees, and where the latter class was included the 
Legislature has done so by appropriate phraseology. Sometimes this has 
been accomplished by legislation pertaining only to public employees. 
See II Op. Atty. Gen. 175; VII ibid. 145; VIII ibid. 585. 

Whether hospitals are supported by public or private donations and 
contributions is significant in determining the character of the institution. 
The pertinent inquiry always is as to whether or not a public board or a 
public official has the supervision and control of such an institution. If 
the management and administration is vested in a public board or a public 
official, then the institution is of a public nature, and its employees would 
be exempt from the provisions of the chapter in question. If, on the other 



P.D. 12. 93 

hand, the institution is under private administration and control, its em- 
ployees would come within the sweep of the chapter in question. VII Op. 
Atty. Gen. 145. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Works Department — Structures in Tidewaters — Licenses — 

Repairs. 

The Department of Public Works has authority to determine the safety 
of licensed structures in tidewaters^ and to require that they do not 
become a menace to the public using them; but may not determine 
and require a specific manner of making repairs. 

Aug. 21, 1935. 

Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir: — You request my opinion as to the authority of your de- 
partment to require owners of licensed structures in tidewaters to keep 
the same in good and safe condition, and especially as to the power of your 
department to compel such owners to repair the damage to the pile foun- 
dations caused by the destructive action of marine borers, so called. 

The proprietary interests in the locations of these structures was form- 
erly the subject of frequent litigation, but the rights of private individ- 
uals and the general public have now been well established. Since the 
colonial ordinance of 1641-47, title of the owner of the uplands extends 
to the low-water mark, except in cases where the distance between high- 
water mark and low-water mark is more than one hundred rods, and, in 
such cases, then for a distance of one hundred rods from the high-water 
mark. The said ordinance, besides making the aforesaid grant of the flats 
seaward from the high-water mark to the above extent, also reserved to 
the Commonwealth an easement in the interests of the public for the 
purpose of navigation, fishing and fowling. Commonwealth v. Alger, 
7 Cush. 53; Butler v. Attorney General, 195 Mass. 79; Jubilee Yacht Club 
V. Gulf Refining Co., 245 Mass. 60. 

The title of the littoral owner of the land between high-water mark 
and low-water mark is perfect, excepting only this dominant easement 
in the Commonwealth, by virtue of which the latter has extensive powers 
of regulation and control for the purpose of maintaining and enforcing 
this public easement. Attorney General v. Woods. 108 Mass. 436; Attorney 
General v. Jamaica Pond Aqueduct Corp., 133 Mass. 361; A'^. Wai-d Co. v. 
Street Commissioners, 217 Mass. 381. 

The legislative history of the supervision and control of the rights and 
interests of the general public in the foreshore has been so fully outlined 
and illustrated by an ample citation of authorities by my predecessors 
that it is now unnecessary to review the matter further. I Op. Atty. 
Gen., 418; lY ibid. 525. 

In so far as the structures in question extend beyond low-water mark, 
or, in any case, beyond the established harbor line, then in neither case 
is there any private proprietary interest in the location because the com- 
plete title thereto is in the Commonwealth. "The waters and the land 
under them beyond the line of private ownership are held by the State, 
both as owner of the fee and as the repository of sovereign power, with a 
perfect right of control in the interest of the public. The right of the 



94 P.D. 12. 

Legislature in these particulars has been treated as paramount to all 
private rights, and subject only to the power of the Government of the 
United States to act in the interest of interstate or foreign commerce." 
Home for Aged Women v. Commonwealth, 202 Mass. 422, 427. 

Tidewaters constitute public waterways, and any structure not au- 
thorized by law and which obstructs or interferes with the dominant 
easement of the public constitutes a public nuisance. Attorney General 
V. Woods, 108 Mass. 436; Fuller v. Andrew, 230 Mass. 139. 

If, because of the action of marine insects, the piling has become un- 
safe, your department is not required to await a collapse of the super- 
structure, but should, as soon a%it appears that the destruction is immi- 
nent, proceed to abate a situation which imperils the public safety and 
actually constitutes a pubhc nuisance. A decree preventing the threat- 
ened injury is the appropriate remedy. Attorney General v. Jamaica 
Pond Aqueduct Corp., 133 Mass. 361, 363; Hotel & Railroad News Co. v. 
Clark, 243 Mass. 317, 322. 

A licensee is protected only when he maintains his premises or con- 
ducts his business in compliance with the terms and conditions of his 
license. Murtha v. Lovewell, 166 Mass. 391; Strachan v. Beacon Oil Co., 
251 Mass. 479. The authority of your department does not end with the 
approval of the plans and the location. It has ample regulatory power 
to see that the owner does not permit the structure to become so dilapi- 
dated as to constitute a menace to the use by the public of the adjacent 
tidewaters. "If the thing granted was afterwards maintained in a man- 
ner so unreasonable and improper as to create a nuisance, a person in- 
juriously affected thereby would have a remedy at law or in equity." 
Sawyer v. Boston Elevated Ry. Co., 243 Mass. 469, 471; McCarthy v. 
Shaheen, 264 Mass. 90. 

You point out in your letter that cities and towns are not authorized 
to enact ordinances or by-laws regulating the construction of bridges, 
quays and wharves. This exemption appears in our present laws (G. L. 
[Ter. Ed.] c. 143, § 3) and has been carried through successive compila- 
tions of our statutes since the original enactment (St. 1872, c. 243). The 
reason for this exemption is clear. By St. 1866, c. 149, control over struc- 
tures in tidewaters was granted to the Board of Harbor Commissioners, 
and, by St. 1872, c. 236, power to issue licenses for the erection of such 
structures was given to this board. Consequently, jurisdiction over 
such structures having been given to such a board, it was the legislative 
intent to exempt them from further control by cities and towns. 

Your department has been given general care and supervision over 
the tidewaters and all structures therein, and is authorized to make such 
surveys, examinations and observations as it may deem necessary in the 
interests of the public welfare. It is manifest, from the power that is 
delegated to you, that if it appears that on account of the condition of 
any structure located in tidewaters a serious interference, in fact or immi- 
nently, results to the rights of the pubhc thereon, you are authorized to 
take proceedings to eliminate such a situation. The failure to keep the 
premises in a safe condition would warrant a revocation by you of the 
license by your department, if such a license was granted subsequent to 
1868, as provided for in G. L. (Ter. Ed.) c. 91, § 15. A remedy for for- 
feiture of the license, under the conditions therein mentioned, is provided 
for in section 16. 

The Supreme Judicial Court has jurisdiction in equity upon an infor- 
mation filed by the Attorney General, as provided for in section 57. This 



P.D. 12. 95 

remedy, however, is merely cumulative, and the Attorney General would 
have a right to bring an information to protect and enforce the public 
interests. Attorney General v. Woods, 108 Mass. 436; Attorney General v. 
Jamaica Pond Aqueduct Corp., 133 Mass. 361, 363, 364. 

In reply to your inquiry as to whether or not your department would 
have the right to order the owner of a wharf to make the same safe by 
adopting a specific method of repair, I wish to advise you that the only 
authority inherent in your department is to see that the premises are 
rendered safe, and that it is without power to determine the specific man- 
ner in which such repairs should be made. Belmont v. New England Brick 
Co., 190 Mass. 442; Durgin v. Minot, 203 Mass. 26. 

I am therefore of the opinion that your department has full authority 
to make a complete investigation to determine the stability and safety of 
any structure built over tidewaters; and that if the same is found unsafe 
and to constitute a threatening menace to the public in the beneficial use 
of the easement above mentioned, then you would have a right to proceed 
in the manner herein designated, or to report the facts to this department 
for the commencement and prosecution of appropriate proceedings. 

The jurisdiction of the Commonwealth is subject to the control of the 
United States in the interests of interstate and foreign commerce, but 
there is nothing here decided contrary to the governing Federal laws. 
U. S. C. A., Title 33, §§ 403, 404, 406. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages Control Commission — Local Licensing Board — Appeal. 

A motion to reconsider an unfavorable finding upon an application for a 
license, passed by a local licensing board more than five days after 
its original adverse finding, is void. 

Aug. 29, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You inform me that the licensing board of the city of 
Medford, on July 12th, refused to issue an alcoholic beverage license, and 
forthwith notified the applicant; that this board, on August 13, 1935, 
passed a motion to reconsider its action taken on July 12th, and, on 
August 19th, the applicant filed an alleged appeal with your Commission. 
You request an opinion as to whether a valid and effective appeal has 
been taken to your Commission from the aforesaid action of the Medford 
licensing board. 

The right to an appeal by one whose application for a liquor license 
has been denied by the local licensing authority is created, regulated and 
determined by the statute. The subject is devoid of any common law 
aspects. The Legislature furnished a remedy, recourse to which is predi- 
cated entirely upon taking the appropriate action within the time pre- 
scribed. The statute (G. L. [Ter. Ed.] c. 138, § 67) expressly provides that 
any applicant who is aggrieved by the action of the local licensing authori- 
ties "may appeal therefrom to the commission within five days." "Time 
has been made of the essence of the right, and the right is lost if the time 
is disregarded. The liability and the remedy are created by the same 
statutes, and the limitations and the remedy are, therefore, to be treated 
as limitations of the right." The Harrisburg, 119 U. S. 199, 214; McRae 
v. New York, New Haven & Hartford R.R. Co., 199 Mass. 418. 



96 P.D. 12. 

Furthermore, the statute having furnished a plain and adequate provi- 
sion relating to taking and perfecting an appeal, no other or different pro- 
ceeding is available to an appellant. The remedy thus provided is exclu- 
sive and not cumulative. Boston v. Edison Elec. III. Co., 242 Mass. 305; 
School Committee of Lowell v. Mayor of Lowell, 265 Mass. 353. 

Assuming, without deciding, that a vote granting an applicant leave to 
withdraw is a proper subject for reconsideration, Mansfield v. O'Brien, 
271 Mass. 515, yet the board could not reconsider a matter which, by a 
lapse of time, had ripened into a final conclusion. The action of the h- 
censing board on August 13th could not animate or vivify a matter which 
was then beyond any possible legal resuscitation. Hack v. Nason, 190 
Mass. 346; Riley v. Brusendorff, 226 Mass. 310; Thorndike, Petitioner, 
254 Mass. 256, 261. 

The licensing board is without any further authority to act on the 
application in question, and the applicant has lost his right to secure a 
review by your Commission. The proceedings came to a final termina- 
tion five days after the vote of the licensing authority granting leave to 
withdraw, and subsequent action by the licensing board is barren of any 
accomplishment. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Prisons — System of Compensation for Inmates — Discretion. 

Aug. 30, 1935. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You request my opinion as to whether the provisions of 
G. L. (Ter. Ed.) c. 127, § 48A, being the wages to prisoners law, so called, 
require the establishment of the system therein enumerated in the dif- 
ferent penal institutions specifically mentioned in the section. 

It is clear, as the section itself expressly provides that "there may be 
established a system of compensation for its inmates," that the estab- 
lishment of the system is directory, depending entirely upon the judg- 
ment and discretion of those in charge as to whether or not it would be 
advantageous or otherwise to exercise the authority conferred upon them 
by the last-mentioned section, and either establish or withhold the estab- 
lishment of the system therein provided for. 

Very truly yours, 

Paul A. Dever, Attorney General. 

House of Correction — Prison Industries — Purchases. 

Purchases made by masters of houses of correction on account of prison 
industries are not required to be made by advertising for competi- 
tive bids or otherwise complying with the provisions of G. L. (Ter. 
Ed.) c. 34, § 17. 

Sept. 3, 1935. 

Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — You request my opinion as to whether or not purchases 
made by masters of houses of correction on account of prison industries, 
as authorized by G. L. (Ter. Ed.) c. 127, § 66, must be made in accord- 
ance with G. L. (Ter. Ed.) c. 34, § 17. 



P.D. 12. 97 

Under the first section above mentioned, keepers and masters of houses 
of correction are empowered to purchase tools, implements and materials 
required for use in manufacturing in such institutions and to obtain 
necessary machinery to replace worn, damaged or destroyed machinery, 
provided such purchases are made "under the supervision of the com- 
missioner, after estimates or requisitions, in such form as he shall require, 
are approved by him." 

If this section stood alone, a strong contention could be made that 
the general authority therein conferred must be exercised in the specific 
manner designated in G. L. (Ter. Ed.) c. 34, § 17. Adams v. County of 
Essex, 205 Mass. 189; Conners v. Lowell, 246 Mass. 279. The section, 
however, does not stand alone, because it is supplemented and supported 
by G. L. (Ter. Ed.) c. 128, § 72, which provides: — 

"... Bills for tools, implements, machinery and materials purchased 
by, and the salaries of persons employed in, the jails and houses of cor- 
rection under said sections shall be paid monthly by the county, upon 
schedules prepared and sworn to by the master or keeper and approved 
by the commissioner. The schedule of bills for tools, implements and 
machinery and of bills for materials and salaries shall be kept separate 
from each other and from the schedules of bills incurred for the main- 
tenance of the prison, reformatory, jail or house of correction." 

The Legislature could determine the method by which county e.xpendi- 
tures may be incurred, verified and paid even if the arrangement pre- 
scribed is different from that usually employed in the administration of 
county finance. County of Essex v. Newhuryport, 254 Mass. 232. 

The two sections last cited comprise adequate provisions for securing 
the necessary tools, implements, materials and machinery, and must be 
considered as independent and distinct from legislation regulating the 
awarding of contracts by county commissioners, as set forth in G. L. 
(Ter. Ed.) c. 34, § 17. Brooks v. Fitchburg d' Leominster St. Ry. Co., 
200 Mass. 8; Decatur v. Auditor of Peabody, 251 Mass. 82; School Com- 
mittee of Lowell V. Mayor of Lowell, 265 Mass. 353. 

I am therefore of the opinion that the purchase of the articles referred 
to in your communication may be accomplished without advertising for 
competitive bids or otherwise complying with the provisions of G. L. 
(Ter. Ed.) c. 34, § 17. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Water Supply Commission — Expenditures — 
Governor and Council — Approval. 

The right of the Commission to enter into contracts is subject to the 
limitation that amounts sufficient for the payment of the indebted- 
ness incurred must be approved by the Governor and Council. 

Sept. 11, 1935. 

His Excellency the Governor, and the Honorable Council. 

Gentlemen: — You advise me that at a recent meeting of the Gov- 
ernor and Executive Council the relation of the Governor and Council 
to the Metropolitan District Water Supply Commission was considered, 
especially in reference to St. 1926, c. 375, and St. 1927, c. 321, and that 



98 P.D. 12. 

it appeared that there was "some question as to whether or not it was 
necessary for the MetropoHtan District Water Supply Commission to 
obtain the approval of the Governor and Council before determining on 
the expenditures of money for projects, for contracts, and for settlement 
of claims in carrying out the provisions of said acts." You request my 
opinion as to the powers and duties of the Governor and Council rela- 
tive to such expenditures for the aforesaid purposes. 

The Metropolitan District Water Supply Commission was established 
by St. 1926, c. 375, for the purpose of securing an additional water sup- 
ply for the metropolitan water system, and for certain other cities and 
towns, by diverting into the Wachusett Reservoir the flood waters of 
the Ware River. The Commission was authorized to enter into con- 
tracts; to secure engineering, legal, clerical and other assistants; to take 
land and water rights by eminent domain; and to construct the neces- 
sary buildings, machinery, roads, conduits and aqueducts, and all other 
necessary appurtenances. This chapter, by section 8, specifically provides 
that — 

"For the purpose of carrying out the provisions of this act, the com- 
mission may expend such amounts, not exceeding in the aggregate fifteen 
milhon dollars, including the sum required to be paid by the city of 
Worcester under section twelve, as may, from time to time, be approved 
by the governor and council. To meet such expenditures, the state 
treasurer shall, from time to time, on the request of the commission and 
subject to such approval, issue bonds of the commonwealth to an amount 
not exceeding the sum of fourteen million dollars, ..." 

By St. 1927, c. 321, additional provisions were made for further devel- 
opment of a water supply from the Swift River. General powers and 
duties, similar to those conferred upon the Commission by St. 1926, 
c. 375, were granted under the terms of this last-mentioned chapter. 

In section 2 of said chapter 321 the Commission was expressly author- 
ized to "construct as a part of the metropolitan water system such aque- 
ducts, tunnels, dams, reservoirs and other works as in its opinion may 
be necessary for the additions, extensions and developments authorized 
by this act and all structures and appurtenances that in the opinion of 
the commission are desirable as incidental or complementary to such 
additions, extensions and developments." 

In section 4 the Commission was empowered to take the necessary 
lands and water rights by eminent domain; and, by section 7, the Com- 
mission may "either before a taking or afterward make such settlements 
as it may deem for the best interests of the commonwealth with any 
person or corporation having a valid claim under this act." 

Section 27 of this chapter contained the following provision: — 

"For the purpose of carrying out the provisions of this act, the com- 
mission may expend such amounts not exceeding in the aggregate fifty 
million dollars, as may from time to time be approved by the governor 
and council. To meet such expenditures, the state treasurer shall, from 
time to time, on the request of the commission and subject to such 
approval, issue bonds of the commonwealth to an amount not exceeding 
the sum of fifty million dollars, which shall be a further addition to the 
loans authorized by section eight of chapter three hundred and seventy- 
five of the acts of nineteen hundred and twenty-six, and by section six 
of chapter one hundred and eleven of the acts of nineteen hundred and 
twenty-seven." 



P.D. 12. 99 

Obviously, the two sections upon wHich you desire an opinion are 
section 8 of St. 1926, c. 375, and section 27 of St. 1927, c. 321. The 
phraseology of both is similar, and it is apparent that the legislative 
intent in enacting each was identical. 

The general authority thus conferred upon the Metropolitan District 
Water Supply Commission to carry out the provisions of both of these 
chapters, by making the necessary takings of lands and water rights and 
entering into contracts for the purpose of performing the work therein 
entrusted to it, was subject to the limitation that the expenditures 
thereby to be incurred must be approved by the Governor and Council. 

The members of this Commission are a statutory board having only the 
powers, duties and obligations expressly conferred upon them by the ena- 
bling acts by which the board was established and is maintained, its func- 
tions defined and its aims and purposes enumerated, together with only 
such other authority as is reasonably necessary and incidental to the full 
performance of the duties prescribed. The members of the Commission 
are public officers, and are not agents or servants of the Commonwealth. 
Adams v. County of Essex, 205 Mass. 189; Header v. West Newbury, 256 
Mass. 37. The requirement of such approval as is enumerated in sections 
11 and 27 is a condition precedent to the existence of any liability upon the 
part of the Commonwealth to pay those with whom the Commission has 
contracted. It is clear that the legislative aim in enacting both of these 
sections was to serve as a check to hasty or ill-advised action by a subordi- 
nate department, and to protect and safeguard public funds from unnec- 
essary or unwarranted expenditures. "The manifest purpose of these 
statutes is to put a limitation upon the wide power which otherwise officers 
of the city would possess to make binding contracts with reference to city 
work." Morse v. Boston, 253 Mass. 247, 252. Dyer v. Boston, 272 Mass. 
265, 274. 

The provisions in question are similar to those frequently found in city 
charters, which require certain contracts entered into by any municipal 
department to be in writing and to be approved by the mayor. United 
States Drainage & Irrigation Co. v. Medford, 225 Mass. 467; McGovern v. 
Boston, 229 Mass. 394; Bay State St. Ry. Co. v. Woburn, 232 Mass. 201. 

The legislative aim disclosed by the two sections in question is closely 
analogous to statutory provisions prohibiting the incurrence of a liability 
until a sufficient appropriation has been made therefor. Adams v. County 
of Essex, 205 Mass. 189; Breckwood Real Estate Co. v. Springfield, 258 
j\Iass. Ill; Dyer v. Boston, 272 Mass. 265. The nature of the duty to be 
performed by a body charged with the approval of the official act of another 
has been frequently set forth in the opinions of our court. 

A city was held not liable for the fees of an architect who had prepared 
plans at the request of the school committee, where the city charter pro- 
vided that the authority to erect schoolhouses was in the city council pro- 
vided the plans therefor were first approved by the school committee. 
After pointing out that the authority to erect a schoolhouse was vested in 
the city council, the court said (Simpson v. Marlborough, 236 Mass. 210, 
214): — 

"The general obligation and the main power rests with that body. There 
is, however, the limitation that no final action can be taken until the plans 
have been 'approved' by the school committee and the city council notified 
thereof in such manner that it may be made matter of formal public record. 
That is the full sweep of power conferred upon the school committee and 



100 P.D. 12. 

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

The approval of the Commissioner of Banks for an increase in the capital 
stock of a trust company, as provided for in G. L. (Ter. Ed.) c. 172, § 18, 
''implies the exercise of sound judgment, practical sagacity, wise discre- 
tion and final direct affirmative sanction." Cunningham v. Commissioner 
of Banks, 249 Mass. 401, 420. In Brown v. Newhuryport, 209 Mass. 259, 
266, it was held that a vote of the city council authorizing and directing the 
city treasurer, in anticipation of taxes, "to borrow from time to time with 
the approval of the committee on finance a sum or sums in the aggregate 
not exceeding $160,000" required the committee on finance to approve 
each and every loan before it could become a binding obligation upon the 
city. The characteristics of the nature of the duty thus imposed upon the 
finance commission and the requirements for its adequate and full per- 
formance were clearly set forth in these words : — 

"This is no simple matter, but involves a high degree of skill in order to 
determine the time and conditions under which most favorable rates of 
interest and discount may be secured in the light of the actual financial 
necessities of the city. It does not manifest an intention to confer a per- 
functory commission to be exercised once for all at the beginning of the 
year. That would be an idle ceremony, and would accomplish none of the 
results which the use of the language imports. The finance committee, as 
its name indicates and the ordinances of the defendant city provided, was 
the general legislative guardian of the financial affairs of the city. Ap- 
proval, in this connection, means that the members of the finance com- 
mittee, acting upon their official responsibilities and having in view the 
public welfare, shall investigate and sanction according to their own inde- 
pendent judgment, each separate borrowing made under the order. It 
implies reflection and sound business discretion as to each loan proposed. 
It did not confer a mere ministerial function, but imposed active and im- 
portant prudential obligations." 

A review of our decisions showing the essential qualifications of the 
conduct requisite to the due performance of a duty similar to that imposed 
upon the Governor and Council under the pertinent sections may be found 
in Leroy v. Worcester St. Ry. Co., 287 Mass. 1. 

This supervisory power resident in the Governor and Council cannot 
be held to be a direct interference with the powers conferred upon the 
Commission in the making of necessary contracts and in the adjustment and 



P.D. 12. 101 

settlement of land damages, Goddard v. Lowell, 179 Mass. 496, but merely 
regulates the methods which must be adopted and pursued to create a valid 
financial obligation against the Commonwealth. United States Drainage 
& Irrigation Co. v. Medford, 225 Mass. 467, 472. 

The Governor and Council cannot either directly or indirectly usurp 
the prerogatives granted exclusively by the Legislature to the Commis- 
sion. The public board entrusted with the duty of securing additional 
sources for a water supply is the Commission. That body is the only one 
that can make the necessary contracts, arising out of the performance of 
its public duties. No other officer or board has any authority whatever 
to contract in behalf of the Commonwealth on any matters already dele- 
gated to the sole jurisdiction of the Commission. In an analogous situa- 
tion relating to a municipality, it was said that "the mayor's power to 
act is limited to contracts which originate with the departments, the 
proper discharge of whose administrative functions renders the contract 
advisable or necessary." Commercial Wharf Cory. v. Boston, 208 Mass. 
482, 488. The right to approve is not the right to contract. Fiske v. 
Worcester, 219 Mass. 428. 

It may not be necessary in order to secure genuine affirmative action 
on the part of the Governor and Council that every proposed project, 
contract or damage settlement should be presented with a great mass of 
detail, but, on the other hand, it is prerequisite that the matter should 
be submitted with all the essential facts, in order that the Governor and 
Council should intelligently understand and comprehend the purpose for 
which public funds are to be expended. 

While there are instances where, in the absence of fraud, accident or 
mistake, a man is bound by action voluntarily taken, yet ignorance of the 
facts is an unsatisfactory basis upon which to predicate a binding obli- 
gation. But we are here dealing with the active administration of public 
funds by a public board. A vote by the inhabitants of a town, at a town 
meeting, in the absence of knowledge of the material facts is a mere nul- 
lity, Brown v. Melrose, 155 Mass. 587, and ratification without knowledge 
of the essential facts to which the vote relates is ineffectual, Header v. 
West Newbury, 256 Mass. 37. The Governor and Council, therefore, in 
the actual exercise of the responsibility imposed upon them have the un- 
doubted right to first satisfy themselves that they have before them all 
the salient features before concluding to grant or withhold their approval. 

The duty of the Governor and Council is not merely one of ratification 
of some previous action taken by the Commission because the action of 
the Commission was not unauthorized, but such could not ripen into a 
legal obligation against the Commonwealth unless funds for the payment 
therefor had been made available by the approval of the Governor and 
Council. The direct and specific approval of any particular project, con- 
tract or land settlement is not required, but the approval of a certain 
amount to be expended will not be justified unless the body whose sanc- 
tion is sought is convinced that the objects for which the expenditure is 
to be made are reasonable in amount, necessary in nature, and in further- 
ance of the public interest. The Governor and Council are not only 
charged with the obligation of securing funds for the use of the Commis- 
sion, by an issue of bonds from time to time, subject to their approval, 
but the proceeds from the sale of bonds cannot be expended without similar 
approval. 

The Commission is free to enter into contracts for the construction and 



102 P.D. 12. 

equipment of tunnels, aqueducts, reservoirs and other necessary works, 
for the settlement of damages arising from takings, and to have full 
charge and control over the various other matters entrusted to it, but 
always subject to the limitation that amounts sufficient for the payment 
of the indebtedness to be thereby incurred must be approved by the 
Governor and Council. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Wages — Weekly Payment — Employees — Salary. 

St. 1935, c. 350, relative to the weekly payment of wages, includes within 
its scope employees receiving salaries as well as those paid wages, 
other than executive and managerial officers to whom has been dele- 
gated a measure of the power of the employing entity itself. 

Sept. 11, 1935. 

Hon. Edward Fisher, Acting Commissioner of Labor and Industries. 

Dear Sir : — You ask my opinion as to the interpretation of St. 1935, 
c. 350, and you inquire whether under the first provision of the act "only 
persons earning wages, as distinguished from salaried employees, come 
within the scope of the first provision of the act." 

St. 1935, c. 350, radically changed the pre-existing statutoiy law, and 
is intended to include within its scope large classes of employees engaged 
in working for others for compensation in various occupations. In the 
interpretation of this statute (St. 1935, c. 350) the word "wages" is not 
to be construed in a narrow sense, as inclusive only of the earnings of 
those who render manual or mechanical labor or services. The statute 
concerns and includes within its sweep "every person having employees 
in his service." The legislative intention is not to be determined by any 
arbitrary or fanciful distinction between the words "wages" and "salary." 
The statute deals in the main with the matter of frequent and regular 
paymerit of earnings by employers to employees, and has relation to that 
large class of workers who depend upon their earnings for their sub- 
sistence and maintenance. While the statute under consideration does 
not relate to nor include within its scope the compensation of public of- 
ficers to whom has been delegated a measure of the sovereign power, nor 
the compensation of corporate officers or others in private enterprise to 
whom have been delegated like powers of executive and managerial func- 
tions, its plain intention is to bring about the more frequent and regular 
payment by employers to employees of the earnings of a large class who 
render personal services, whether in public or private employment. The 
plainly apparent object sought to be accomplished by the statute is not 
to be defeated by merely denominating the earnings of any class or classes 
of employees as "salary," nor by restricting the interpretation of the 
word "wages" as it appears in the statute. See Duggan v. Bay State St. 
Ry. Co., 230 Mass. 370, 374, and cases cited. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 103 

Schools — Display of the Flag — Class Rooms. 

The United States flag must be displayed in every schoolroom in which 
the daily sessions of the school are commenced. 

Sept. 13, 1935. 
Dr. Pavson Smith, Commissioner of Education. 

Dear Sir : — You state that it is the practice of many high schools for 
the pupils to meet in the assembly hall once each week for the opening 
exercises, and that on the other school days opening exercises are held by 
the respective classes in the various class rooms. You request an opinion 
of me as to whether this weekly meeting of the student body in the as- 
sembly hall, where the United States flag is displayed and saluted and 
the pledge of allegiance given, as prescribed by law, makes it unnecessary 
to have a flag displayed in each of the class rooms where the opening 
exercises are held on every day other than the day on which they are 
held in the assembly hall. 

G. L. (Ter. Ed.) c. 71, § 69, as amended by St. 1935, c. 258, in so far as 
pertinent, provides that — 

"A flag shall be displayed in each assembly hall or other room in each 
such schoolhouse where the opening exercises on each school daj' are 
held." 

It also provides a penalty for failure to have a flag so displayed for five 
consecutive days. 

The phraseology of the portion of chapter 258 above set forth is plain, 
direct and clear. It places a mandatory duty upon the school authorities 
to have a flag displayed in every schoolroom where the daily sessions 
commence, and the said provision is separate, apart and independent of 
the further provisions contained in the said chapter requiring the salute 
to the flag and the pledge of allegiance thereto. Duggan v. Baij State St. 
Ry. Co., 230 Mass. 370, 374; Dexter v. Dexter, 283 Mass. 327, 330. I 
can only interpret the language as used by the Legislature in ascertaining 
the intent of the framers of the law, and it is manifest that the flag must 
be displayed in every schoolroom in which the daily sessions of the school 
are commenced. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — License — Partner ship. 

Upon the death of a member of a partnership, neither the individual 
surviving partners nor the representative of the deceased has power 
to transfer an interest in such license to another. 

Sept. 17, 1935. 

Alcoholic Beverages Control Commission. 

Gentlemen: — You have asked my opinion upon the following matter 
of law: — 

"Whether or not, where a license was issued to a partnership and one 
of the partners dies, the estate of the deceased partner has any right in 
the license?" 



104 P.D. 12. 

You state: — 

"Our understanding of the law in the Commonwealth is that where 
one partner dies the surviving partner or partners close up the estate and 
have an accounting after liquidation. We do not think that the estate of 
a deceased partner has the right to transfer anything to a new partner 
who might desire to have a new name added to the license in place of the 
deceased partner." 

Your understanding of the law relative to partnership in relation to 
liquor hcenses, as you have set it forth, is substantially correct. I answer 
your question in the negative. 

The death of a partner acts as a dissolution of the partnership (Marlett 
V. Jackman, 3 Allen, 287), except under unusual partnership agreements 
which explicitly provide for the continuation of the firm as such after 
the death of a partner. Holcomhe v. CoTnmissioner of Corpoj-ations and 
Taxation, 245 Mass. 353; Stearns v. Brookline, 219 Mass. 238. 

Though the partnership be dissolved by death, there is a certain con- 
tinuity of interest which exists long enough to cover the period during 
which the other partners are discharging their duty of winding up the 
affairs, and the partnership license would protect them under such cir- 
cumstances. United States v. Glab, 99 U. S. 225; St. Charles v. Hackman, 
133 Mo. 634. 

The license, however, is the license of the partnership as such, and 
neither the individual partners nor their representatives after death have 
the power to assign or transfer any particular interest in such license to 
another. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Trustee of a Public Institution — Expenses — Reimbursement. 

Sept. 26, 1935. 
His Excellency James M. Curley, Governor of the Commonwealth. 

Sir : — You inform me that one of the trustees of the Belchertown 
State School expended $13.68 for a substitute in her teaching position 
in the Springfield schools for three afternoons, in order to enable her to 
attend a meeting of the board of trustees, and now seeks reimbursement 
from the Commonwealth of the aforesaid amount. You request an 
opinion from me on the validity of her claim. 

The governing statute (G. L. [Ter. Ed.] c. 19, § 6), relative to compen- 
sation of the trustees of this school, provides that "all the above trustees 
shall serve without compensation but shall be reimbursed for all expens.es 
incurred in the performance of their duties." 

The expenses that may be paid to trustees are specifically limited to 
those "incurred in the performance of their duties." Expenses for per- 
sonal comfort and convenience, which have nothing to do with the per- 
formance of their duty as members of the board of trustees of this school, 
are beyond the scope of the statute. Any expense other than that in- 
curred by a trustee in the course, and in consequence, of the discharge 
of his public duties cannot furnish the basis for a valid claim against the 
Commonwealth. In other words, the expense, to be allowable under the 
statute, must be incidental to the office itself, and not merely personal to 
an individual who happens to be a trustee. Official as distinguished from 



P.D. 12. 105 

personal expense is the guide and the rule of the statute. Cook v. County 
of Norfolk, 201 Mass. 257. Heublein v. New Haven, 75 Conn. 545. Dixon 
V. Shaw, 122 Okla. 211. 

The claim in question arose from the fact that the trustee is a teacher, 
and the expense incurred in the employment by her of a substitute 
teacher, so as to enable her to attend meetings of the trustees, is too re- 
mote and collateral to the performance of the duties of the trustees to 
come within the official expenses the payment of which is sanctioned by 
the statute above cited. 

I am therefore of the opinion that there is no warrant in law justifying 
the payment of the instant claim. 

Very truly yours, 

Paul A. Dever, Attorneij General. 

Teachers' Oath — Positions — Form — Time of Subscribing. 

(1) A teacher occupjdng more than one position is required to subscribe 

to more than one oath. 

(2) All teachers whose positions are not those of "professor" or "in- 

structor" should describe themselves in the form to be subscribed 
merely as "teacher." 

(3) No oath subscribed prior to October 1, 1935, is in compliance with 

St. 1935, c. 370. 

(4) St. 1935, c. 370, has no application to teachers in a "riding school" or 

a "school for beauty culture." 

(5) Temporary lecturers in schools or colleges, if they in fact teach, may 

be within the terms of St. 1935, c. 370. 

Sept. 27, 1935. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir : — You have asked my opinion upon the following questions 
concerning St. 1935, c. 370, in connection with various matters which 
have come before you for determination on your part in connection with 
your official duties. 

" (1) The law provides that a professor, instructor, or teacher must take 
the oath to 'discharge faithfully the duties of the position.' There are 
cases when a person serves as a teacher in two or more institutions. Must 
he take and subscribe to a separate oath in connection with each of the 
positions which he fills?" 

I answer your first question in the affirmative. The required oath is 
not limited to swearing allegiance to the Constitutions of the United States 
and the Commonwealth, but also applies to the faithful discharge of the 
duties of a particular position. It is required that a copy of the oath as 
subscribed shall be filed with the employer of the subscriber. It is appar- 
ent that it was the intent of the Legislature that as to each position an 
oath for the faithful performance of duties should be required as well as 
an oath to support the two Constitutions. 

" (2) The oath, as estabHshed in the law, provides for inserting the title 
of the position. Is it sufficient that the person designate himself as profes- 
sor, instructor or teacher, or should the position designated be that by 
which he is usually classified, such as head of the department, principal, 
lecturer, dean, etc." 



106 P.D. 12. 

I answer your second question in the affirmative. The General Court 
has, for the purposes of the instant statute, indicated an intention to 
mark out three classes of persons engaged in teaching, and no more. 
While all three classes might have been comprehended by the general 
word "teacher," the statute provides that when a member of the teach- 
ing profession is actually classified, by the institution which employs 
him, as a "professor" or as an "instructor," he shall so describe himself 
in taking and subscribing the required oath. Other titles or designations, 
except that of "teacher," are not specifically mentioned in the statute nor 
are they to be used under the terms of the act in connection with the oath. 
All teachers whose positions are not those of a "professor" or an "in- 
structor" in the institution to which they are attached should describe 
themselves simply as "teacher." 

"(3) I should like also to inquire what should be the attitude of the 
department with reference to cases where blanks filed indicate that the 
oath was taken prior to October 1, the effective date of the act. Should 
the department require that the oath be taken again after that date?" 

No oath prescribed by the statute should be treated as complying with 
its terms unless it is taken subsequent to September 30, 1935. As a general 
rule an act of the Legislature speaks for the future and as of the time 
when it takes effect, and not of the time when it was passed or of any 
day before it becomes effective. 

" (4) We have had several inquiries, one from a riding school and one 
from a school of beauty culture, asking if such institutions are required 
to file the oaths subscribed to by their various teachers. Does the law 
apply to all institutions designated as college or school, regardless of the 
type of instruction which is offered?" 

I answer your fourth question in the negative. With regard to the 
specific instances mentioned in your query, the statute does not apply to 
a "riding school" nor to a "school of beauty culture." 

"(5) It is customary in the institutions of higher learning for visiting 
professors to give one or more lectures at various times during the year; 
also, in the Division of University Extension in this department to em- 
ploy a lecturer from outside the State, oftentimes for but one lecture in a 
series. In such cases, should such persons be classed as instructors and 
the oath required?" 

This question is largely one of fact, which the Attorney General is not 
empowered to answer. For your guidance let me sa}- that if the purpose 
or intent of the lecture or lectures given in any instance is that of im- 
parting instruction to scholars, the lecturer employed by an institution 
of higher learning, as you state, would be a "professor, instructor or 
teacher" as the case might be, and "before entering upon the discharge 
of his duties" with the institution whose service he was "entering," as 
the quoted words are used in the instant statute, he should take and 
subscribe to the required oath. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 107 

Alcoholic Beverages — Wholesalers and Importers — Warehouse — License. 

Oct. 2, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You have asked my opinion upon the following ques- 
tions relative to the withdrawal, sale and delivery of alcoholic beverages 
from Federal bonded warehouses located in Massachusetts: — 

"1. May a nonholder of a Massachusetts wholesaler's and importer's 
license withdraw alcoholic beverages which he has stored in a Federal 
bonded warehouse located in Massachusetts and sell or deliver the same 
to the holder of a Massachusetts wholesaler's and importer's license? 

2. May a nonholder of a Massachusetts wholesaler's and importer's 
license store alcoholic beverages in a Federal bonded warehouse located 
in Massachusetts and withdraw such beverages for export sale or de- 
livery to the holder of a proper license issued by the licensing authori- 
ties of another State?" 

1. I answer your first question in the negative. I understand that my 
opinion is desired to aid you in giving information relative to the re- 
quired performance of your duties to the Federal Collector of Customs. 
The Attorney General does not give opinions to officers of the United 
States, who are to be governed by the interpretations of applicable law 
by the United States Attorney General and the United States Attor- 
neys, and the expression of my opinion to you in the instant matter is 
only for the purpose of guiding you in performing your duties in con- 
nection with certain duties in which you may have to act in some degree 
in conjunction or in co-operation with the Collector of Customs. 

With relation to entry into or withdrawal from a "Federal bonded 
warehouse," to which you allude, the laws of the United States are con- 
trolling. Sales or deliveries in Massachusetts, however, subsequent to 
such withdrawal are governed by the laws of the Commonwealth. Such 
sales or deliveries within Massachusetts of alcoholic beverages are not 
permitted to be made by unlicensed persons. Under the laws of this 
Commonwealth, embodied in G. L. (Ter. Ed.) c. 138, as appearing in 
St. 1933, c. 376, § 2, and as subsequently amended, only a licensed manu- 
facturer, w^holesaler or importer having a special permit granted under 
section 20 of said chapter 138 may transport alcoholic beverages from 
a place of storage to a place of business. No person other than a licensed 
wholesaler, manufacturer or importer has authority to sell such alcoholic 
beverages to one in possession of a manufacturer's, wholesaler's or im- 
porter's license. 

2. If the export sale or delivery to a duly licensed dealer in another 
State, to which you refer in j'our second question, be one consummated 
in the course of interstate commerce, as to which deposit in a "Federal 
bonded warehouse" be only a part and the transportation be by a com- 
mon carrier operating in interstate commerce under Federal laws, there 
are no prohibitions, such as you inquire about, upon the depositor in 
relation to withdrawal and disposition by reason of the laws of this 
Commonwealth. 

Very truly yours, 

Paul A. Dever, Attorney General. 



108 P.D. 12. 

School — Flag Salute — Penalty. 

Oct. 9, 1935. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — My opinion is desired upon the following matter: — 

"I have been requested by school authorities to advise them as to 
whether or not a penalty may be invoked by the school committee or other- 
wise in the case of a pupil who refuses to salute the flag as implied in the 
provisions of G. L. (Ter. Ed.) c. 71, as amended." 

G. L. (Ter. Ed.) c. 71, § 69, as amended by St. 1935, c. 258, reads: — 

"The school committee shall provide for each schoolhouse under its 
control, which is not otherwise supplied, flags of the United States of silk 
or bunting not less than two feet long, such flags or bunting to be manu- 
factured in the United States, and suitable apparatus for their display as 
hereinafter provided. A flag shall be displayed, weather permitting, on 
the school building or grounds on every school day and on every legal 
holiday or day proclaimed by the governor or the President of the United 
States for especial observance; provided, that on stormy school days, it 
shall be displayed inside the building. A flag shall be displayed in each 
assembly hall or other room in each such schoolhouse where the opening 
exercises on each school day are held. Each teacher shall cause the pu- 
pils under his charge to salute the flag and recite in unison with him at 
said opening exercises at least once each week the 'Pledge of Allegiance 
to the Flag'. Failure for a period of five consecutive days by the principal 
or teacher in charge of a school equipped as aforesaid to display the flag 
as above required, or failure for a period of two consecutive weeks by a 
teacher to salute the flag and recite said pledge as aforesaid, or to cause 
the pupils under his charge so to do, shall be punished for every such 
period by a fine of not more than five dollars. Failure of the committee 
to equip a school as herein provided shall subject the members thereof to 
a like penalty." 

The statute does not expressly make failure, neglect or refusal to salute 
the flag on the part of a pupil a criminal offense, and, consequently, pro- 
vides no penalty for such failure, neglect or refusal on his part. 

Failure, neglect or refusal by a pupil, when present at school, to salute 
the flag at the opening exercises on any school day, when properly di- 
rected or required so to do by a principal or a teacher having charge of 
him, may, however, warrant appropriate disciplinary measures against 
such pupil. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Soldier or Sailor — Eligibility for State Bonus — Discharge. 

Oct. 10, 1935. 
Hon. Charles F. Hurley, Treasurer and Receiver General. 

Dear Sir: — You request an opinion relative to the eligibility of a 
holder of a "bad conduct" discharge from the United States Navy to the 
bonus provided for by Gen. St. 1919, c. 283. I advise you that, in ray 
opinion, he is not entitled to such bonus. 

A "bad conduct" discharge from the United States Navy is a dishonor- 
able discharge, within the meaning of said act. 



P.D. 12. 109 

I quote as follows from the opinion of a former Attorney General (V 
Op. Atty. Gen. 406, 407), in which I fully concur: — 

"You also request my opinion as to whether men who actually entered 
the Federal service during the period specified in the statute, but who 
subsequently received discharges not declared by their terms to be either 
honorable or dishonorable, but specified to be given on account of bad 
conduct or some similar ground, are entitled to the benefits of this act. 

Section 5 of the statute provides in part as follows: — 

' No person shall be eligible for any benefit accruing under this act who 
(1) shall have received a dishonorable discharge from the service of the 
United States, . . .' 

In my judgment, this provision, when read in the light of the purpose 
of the act as declared in section 1, must not be strictly construed as re- 
ferring only to persons who receive discharges expressly declared by their 
terms to be dishonorable. It should, rather, in my judgment, be given 
a broader construction and be held to exclude from the benefits of the act 
all persons who did not receive an honorable discharge. It was the pur- 
pose of the statute, as declared in section 1, to recognize all services ren- 
dered in the army or navy bj^ citizens of Massachusetts 'to the full ex- 
tent of the demands made upon them and of their opportunity.' I cannot 
persuade myself that the services rendered by a man who so conducted 
himself as a member of the army of the United States that it became 
necessary to discharge him therefrom for misconduct were services of the 
character intended to be recognized. I am unwilling to assume that the 
General Court intended thus to reward any man who so failed to perform 
his duties that he was discharged for misconduct." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Regulations — Licensed Premises — Device for 

Gambling. 

Oct. 14, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You have written me as follows : — 

"This Commission has been requested to give an opinion concerning 
the use of a rotor-table in establishments that are licensed to sell alcoholic 
beverages. 

The table is glass-topped and is suitable for use as a serving table for 
beverages or food. It is also fitted up in the manner of so-called pin ball 
tables, wherein scores may be obtained, depending upon the pocket num- 
ber the balls fall into. There is nothing printed on the instructions that 
calls for any prize, merely tells how a larger score can be obtained, depend- 
ing upon the manner in which the balls are hit by the player. 

It is claimed by those interested that it is a game of skill, and that the 
manner in which the driver of the ball is handled is entirely dependent 
upon the player. 

We would like to have your opinion as to whether or not the use of these 
in Hcensed establishments is a violation of the Control Act or any of the 
regulations of said act." 

The provisions of the regulations established by your Commission, 
particularly Nos. 19 and 20, forbid that any form of gambHng be carried 



no P.D. 12. 

on upon licensed premises, whether hotel, restaurant, tavern or club. This 
includes the playing of any game, either with or without a machine, in 
which (1) some form of consideration is paid by the player or players for 
the opportunity of taking part, (2) a return of something of value is given 
by the machine, the proprietor of the premises, or by some of the players 
themselves to the winner, and (3) the determination of the winner is 
effected by chance. Whether any particular game as played comes within 
the above description is to be determined by an application of the prin- 
ciples thereof to all the known facts concerning it. 

The Attorney General does not pass upon questions of fact. The facts 
of which you have advised me, relative to the instant machine or game, 
are so meager as to give no opportunity for an expression of an opinion 
of law. 

If the game played with the suggested device be one which is used for 
gambling by the players themselves, then, as so used, its presence in li- 
censed premises is as much forbidden by your rules as if prizes and rewards 
based upon chance were paid out by the machine itself or its proprietor or 
the proprietor of the premises. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Narcotics — Licenses — Manufacturers and Wholesalers. 

A manufacturer of narcotics who is also a wholesaler requires only one 

license. 

Oct. 25, 1935. 

Dr. Henry D. Chadwick, Commissioner of Public Health. 

Dear Sir : — You have asked my opinion upon certain questions of 
law relative to the licensing of manufacturers and wholesalers of nar- 
cotic drugs under the provisions of G. L. (Ter. Ed.) c. 94, §§ 198A and 
198B, as inserted by St. 1935, c. 412. 

Your questions are : — 

"1. Does a manufacturer who is also a wholesaler require one license 
or two licenses?" 

I answer this question to the effect that he requires only one license. 
That this was intended by the General Court is made plain by section 
201 of said chapter 94, as amended by St. 1935, c. 412, § 4, which pro- 
vides, among other things, that "any licensee under sections one hundred 
and ninety-eight A and one hundred and ninety-eight B," together with 
certain other designated persons, "may sell a narcotic drug" to various 
particular institutions and classes of persons who together comprise all 
those who may properly buy to resell, and for certain other purposes. 
The right to sell to these buyers is given, as above stated, to "any licensee 
under sections one hundred and ninety-eight A and one hundred and 
ninety-eight B," and such licensee may be either a manufacturer or whole- 
saler, no distinction in this respect between the two being indicated by 
the statute. 

"2. Does a wholesaler who operates two or more wholesale establish- 
ments in this Commonwealth require one license for each such establish- 
ment, or will one license to the wholesaler cover all the establishments 
from which he does a wholesale business?" 



P.D. 12. Ill 

I answer this question to the effect that one license is all that is required 
by the said statute. 

"3. Does a manufacturer who operates more than one factory require 
a license for each such factory?" 

I answer this question to the effect that one license is sufficient. 

"4. In one instance a manufacturing corporation is doing a wholesale 
business under another name, not incorporated, at the same address as 
that of the manufacturer. The manufacturer controls the wholesale dis- 
tribution. Will it be necessary in this instance to license the manufacturer 
as such and to license the wholesaler as such, or will the manufacturer in 
addition be required to take out a wholesale license for selling to his sub- 
sidiary, who does a general wholesale business to the pharmaceutical 
trade?" 

If the manufacturing corporation and the wholesaler are two distinct 
entities, they must each have a license under section 198A. In view of 
my answers to your other questions, I am not of the opinion that the 
manufacturer requires more than one license. The licensed manufacturer, 
however, may not sell to a person or organization not itself licensed under 
section 198A, except such be a registered pharmacist actively engaged in 
business as such, or a physician, dentist or veterinarian registered under 
the laws of the State where he resides, or an incorporated hospital, college 
or scientific institution. 

In regard to your inquiry concerning manufacturers located without 
the Commonwealth, under the circumstances which you have described 
in your letter, you have no duty except to advise as to the facts and to 
co-operate with the Federal agencies charged with the enforcement of the 
laws of the United States pertaining to narcotic drugs, and to cause to be 
instituted appropriate prosecutions against any one not a licensee under 
sections 198A and 198B, and others specifically named in connection with 
them in said G. L. (Ter. Ed.) c. 94, § 198, who has narcotic drugs in his 
possession contrary to the provisions of said section 198. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Local Boards of Health — Licenses — Soft Drinks — Disposal of Fees. 

Oct. 25, 1935. 

Dr. Henry D. Chadwick, Commissioner of Public Health. 

Dear Sir: — You request my opinion with relation to fees for licenses 
to operate establishments for manufacturing or bottling of soft drinks. 
Local boards of health are required by G. L. (Ter. Ed.) c. 94, § lOB, as 
inserted by St. 1935, c. 441, to collect twenty dollars for such licenses 
and to transmit one-half thereof to your department. 

The proper procedure for such local boards to pursue, with relation to 
such fees, is to deposit the whole of any such fee with the town treas- 
urer, with a notation as to its source and a request that he forward forth- 
with one-half thereof to your department. This course meets with the 
approval of the Director of the Division of Accounts. 

Very truly yours, 

Paul A. Dever, Attorney General. 



112 P.D. 12. 

Alcoholic Beverages — Vote of Municipality — Licenses. 

Oct. 25, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You have asked my opinion as follows: — 

"Section 11 A of the Liquor Control Act provides that upon the filing 
of a proper petition the following question shall be submitted to the 
voters of a city or town: 'Shall licenses be granted in this city (or town) 
for the sale therein of alcoholic beverages in taverns? ' . . . 

The Alcoholic Beverages Control Commission requests your opinion as 
to whether or not an affirmative vote on this question makes it manda- 
tory upon the licensing authority of the city or town wherein such a vote 
is taken to issue tavern licenses for the sale of alcoholic beverages." 

Said section 11 A provides in part: — 

"If a majority of the votes cast in such a city or town in answer to 
the question hereinbefore set forth are in the affirmative, such city or 
town shall be taken to have authorized the sale therein in taverns of 
such alcoholic beverages, if any, as are from time to time lawfully author- 
ized to be sold in such city or town, subject in all respects to the provi- 
sions of this chapter, ..." 

After such an affirmative vote as you have described has been passed 
in a city or town, it becomes the duty of the local licensing authorities 
to consider all applications for tavern licenses which may be presented 
to it, and to issue such licenses thereon as in the exercise of their sound 
judgment may properly be granted, in the light of other applicable pro- 
visions of G. L. (Ter. Ed.) c. 138, as amended, more especially those of 
sections 12, 17 and 23. 

The licensing authority may not arbitrarily refuse to issue any tavern 
licenses in such city or town. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Local Licensing Authorities — Licenses — Time. 

An applicant for a new "restaurant license" is prima facie entitled to 
renewal but not necessarily to a license for seven days a week; nor 
has he an appeal from a decision of a local board to permit a renewal 
for only six days a week. 

Unexpired Hcenses may not be reduced from seven to six days a week. 

Oct. 30, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You ask my opinion upon four questions relative to 
G. L. (Ter. Ed.) c. 138, in which you have set forth the applicable pro- 
visions of said chapter. 

"1. Does the provision which gives the local licensing authorities exclu- 
sive jurisdiction in the matter of determining whether a common victual- 
ler's license to sell alcoholic beverages is to be for secular days only or for 
all days of the week take precedence over the provision which gives the 
present holder of a seven days' license to sell such beverages a prima facie 
right to a renewal of that license provided he complies with the provisions 
of section 16 A?" 



P.D. 12. 113 

I answer your question to the effect that a holder of a restaurant 
Hcense has a prima facie right to the renewal of the restaurant license 
which he holds, but that he has no prima facie right to a renewal free from 
the limitation to six days' use. A restaurant license limited to six days a 
week is still of the same "class" as a restaurant license authorizing use 
for seven days a week, as the word "class" is used in section 16A of the 
said chapter, in the phrase "The holder of a license under section twelve 
or fifteen who applies ... for a license of the same class for the next 
succeeding licensing period shall be prima facie entitled thereto ..." 

The applicant for a new restaurant license is prima facie entitled to a 
restaurant license, but he is not prima facie entitled to a restaurant license 
devoid of the restriction to six dstys. 

"2. Has the holder of a license originally granted for the sale of alco- 
holic beverages on all days of the week a right of appeal to this Commis- 
sion if his local licensing authorities, after issuance of the seven days' 
license, change the same to a six days' hcense?" 

I answer your second question in the negative. The third sentence of 
the first paragraph of section 12 of chapter 138, which provides that the 
decision of the local licensing authorities as to the type of license which 
shall be issued to restaurants, whether for secular days or for all days of 
the week, shall be final, was inserted in the chapter as it originally stood, 
at the same time that section 67 thereof, covering appeals, was inserted 
in its amended form. The terms of said section 67 do not appear to 
specifically make acts of local licensing boards relative to imposing a six- 
day limitation upon restaurant licenses the subject of an appeal; and 
the provision of said section 12, as amended, that the action of the local 
board in regard to this particular matter shall be final, shows plainly the 
intent of the Legislature to manifest clearly that this specific action of 
the local board was not to be comprehended within any provisions for an 
appeal. Provision for such finality of determination by a board of the 
character of a local licensing authority is not an unconstitutional enact- 
ment (Opinion of the Justices, 251 Mass. 614). 

"3. May a local licensing authority, without the approval of this Com- 
mission, change a license for the sale of alcoholic beverages on all days of 
the week to a license for the sale of such beverages on secular days only? 

4. May a local licensing authority, without the approval of this Com- 
mission, change a hcense for the sale of alcoholic beverages on secular 
days only to a license for the sale of such beverages on all days of the 
week?" 

As to your third and fourth questions, I find no authority vested by 
the statute in the local licensing boards to change an outstanding license 
containing the limitation to six days a week to an unlimited one, nor vice 
versa. In regard to a new application for a license, the local licensing 
boards have authority to alter the provisions of such license with relation 
to its use on nonsecular days without the approval of your Commission, 
subject, however, to the provision of said section 12 that the licensing of 
any applicant for a restaurant license is subject to the prior approval of 
your Commission. Such prior approval relates to the propriety of licens- 
ing a given applicant: that being determined, the question of whether 
such applicant for a restaurant license shall have a restricted or an unre- 
stricted license rests solely with the local board. 

Very truly yours, 

Paul A. Dever, Attorney General. 



114 P.D. 12. 

Alcoholic Beverages — Cider — Wholesaler — License. 

A license is not required for the sale at wholesale, by the original makers, 
of cider having more than three per cent alcoholic content. 

Oct. 30, 1935. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You ask in effect whether or not a license is required 
for the sale at wholesale, by the original makers, of cider having more 
than three per cent alcohoHc content. 

I am of the opinion that under the provisions of G. L. (Ter. Ed.) c. 138, 
as amended, no such license is necessary. 

Section 3 of said chapter 138, as amended by St. 1935, c. 440, § 3, 
reads : — 

"This chapter shall not apply to the manufacture or storage of alco- 
holic beverages by a person for his own private use or to sales of cider at 
wholesale by the original makers thereof, or to sales of cider by farmers, 
not to be drunk on the premises, in quantities not exceeding in the aggre- 
gate the product of apples raised by them in the season of, or next preced- 
ing, such sales, or to sales of cider in any quantity by such farmers not to 
be drunk on the premises if such cider does not contain more than three 
per cent of alcohol by weight at sixty degrees Fahrenheit; nor shall this 
chapter apply to sales of cider by the original makers thereof other than 
such makers and farmers selling not to be drunk on the premises as afore- 
said, if the cider does not contain more than three per cent alcohol as afore- 
said, not to be drunk on the premises as aforesaid." 

The proviso contained in this section, "if such cider does not contain 
more than three per cent of alcohol," applies only (1) to sales of cider by 
farmers in any quantity, not to be drunk on the premises, and (2) to sales 
of cider by the original makers, not to be drunk on the premises, but not at 
wholesale. 

The proviso does not apply (1) to the manufacture of alcoholic bever- 
ages by a person for his own private use, nor (2) to sales of cider at whole- 
sale by the original makers thereof, nor (3) to sales by farmers, not to be 
drunk on the premises, in a specified limited quantity. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commissioner of Correction — Rules — Approval of Governor and Council. 

Rules concerning marks and grades for prisoners in the Massachusetts 
Reformatory require the approval of the Governor and Council. 

Oct. 30, 1935. 
Hon. Arthur T, Lyman, Commissioner of Correction. 

Dear Sir: — You advise me that you contemplate making a change 
in the present system of marks and grades provided for prisoners in the 
Massachusetts Reformatory, and you ask my opinion as to whether a 
new system promulgated by you would require the approval of the Gov- 
ernor and Council. 

I answer your inquiry to the effect that it would require such approval. 
Under the provisions of St. 1884, c. 255, § 28, power was vested in the 
then Commissioners of Prisons to make — 



P.D. 12. 115 

"all necessary rules and regulations for the government and direction of 
the officers ... for the discipline of the prisoners. . . . They shall make 
special provision for grading and classifying the prisoners and establish 
rules for dealing with them according to their behavior, industry in la- 
bor, and diligence in study. All rules and regulations adopted by the 
said commissioners shall be subject to the approval of the governor and 
council." 

The system of marks and grades to which you allude, and as to which 
you desire to create a new system, is, obviously, "rules for dealing with" 
prisoners "according to their behavior, industry in labor, and diligence in 
study." The fact that this system is a part of the rules allegedly made 
under the provisions of section 28 is evidenced by the statement which 
you quote from the annual report of the superintendent of the reforma- 
tory in 1886: "The management and discipline of the prisoners is by a 
system of marks and grades. The grade rules were established by the 
Commissioners of Prisons with the approval of the Governor and Council." 

Such a system as you indicate is properly part of the rules mentioned 
in the above quotation from said section 28. The power to make rules 
was then, as I have said, vested in the Commissioners of Prisons, subject to 
the approval of the Governor and Council. 

By Gen. St. 1916, c. 241, § 1, the powers of the former Commissioners 
of Prisons were transferred to a Director of the Massachusetts Bureau 
of Prisons. These powers were not enlarged by said chapter, and the 
power to make rules, previously existing in the Commissioners of Prisons, 
was by this latter chapter vested in the new Director of Prisons, subject 
to the limitation that the Governor and Council should approve thereof. 

By Gen. St. 1919, c. 350, §§ 82-85, the present Department of Correc- 
tion was created, with the Commissioner as head, who was authorized to 
perform all the duties of the Director of the Massachusetts Bureau of 
Prisons. The powers and duties of the Director in relation to making 
rules were not enlarged or changed by this statute, which is now em- 
bodied in G. L. (Ter, Ed.) cc. 27 and 125. Hence, the power to make 
rules, such as you refer to, now exists with the present Commissioner, but 
subject to the approval of the Governor and Council. 

Section 7 of said chapter 125 provides that the superintendent of the 
Massachusetts Reformatory shall from time to time suggest to the Com- 
missioner, in writing, such alterations in the rules and regulations as he 
considers advisable. The power of the Commissioner to make rules is in 
no way limited by this section. 

The power to make rules, however, is limited to the type of rule set 
forth in said section 28 of St. 1884, c. 255, and does not extend to making 
rules respecting the release of prisoners from the Massachusetts Re- 
formatory. II Op. Atty. Gen. 90. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Municipality — Action of a Board — Two-thirds Vote. 

Nov. 1, 1935. 
Hon. Joseph W. Bartlett, Chairman, Emergency Finance Board. 

Dear Sir: — Your Board has addressed to me a communication which 
reads in part : — 



116 P.D. 12. 

"The charter of the city of Chicopee calls for a board of aldermen 
consisting of seventeen members. The charter further provides that, on 
the resignation or death of any member after a certain date and before 
a certain period before election, the vacancy caused by the resignation 
or death of a member cannot be filled. 

A public works project calling for a loan under St. 1935, c. 404, was 
before the board of aldermen of the city of Chicopee and acted upon by 
eleven votes in the affirmative. Prior to that time a member had re- 
signed and his resignation had been accepted, and under the charter the 
vacancy could not be filled. 

Question: Has the loan order been passed by a two-thirds vote?" 

I answer your question in the negative. 

St. 1933, c. 366, pt. I, § 2, as amended, provides that "any city ... if 
authorized by a two thirds vote as defined in section one of chapter 
forty-four of the General Laws, . . . may engage in any public works 
project . . ." 

G. L. (Ter. Ed.) c. 44, § 1, defines a two-thirds vote as follows: — 

"In this chapter, unless the context otherwise requires, the following 
words shall have the following meanings: 

'Revenue', receipts from taxes and income from all other sources. 

'Director', director of accounts in the department of corporations and 
taxation. 

'Majority vote' and 'two thirds vote', as applied to towns or districts, 
the vote of a majority or two thirds, respectively, of the voters present 
and voting at a meeting duly called, and, as applied to cities, the vote 
taken by yeas and nays of a majority or of two thirds, as the case may 
require, of all the members of each branch of the city government where 
there are two branches, or of all the members where there is a single 
branch of the city government, or of a majority or two thirds of the 
commissioners where the city government consists of a commission; and 
in every case subject to the approval of the mayor, where such approval 
is required by the charter of the city. 

'Town' shall not include city." 

The phrase "two thirds of all the members," as used in section 1, is to 
be construed as meaning two thirds of all the membership of the munici- 
pal body in question, as provided for in the statute which created the 
body. In the case of the board of aldermen of Chicopee, that number is 
seventeen. It is two thirds of the number seventeen which constitutes 
the required two-thirds vote for the approval of the project under the 
said definition of G. L. (Ter. Ed.) c. 44, § 1. The number constituting 
the whole membership as authorized by the city charter is not to be 
diminished, in reckoning the necessary two thirds, by vacancies in the 
membership. Pollasky v. Schmid, 128 Mich. 699; Satterlee v. San Fran- 
cisco, 23 Cal. 314; Dillon on Municipal Corporations, 5th ed., vol. II, 
pp. 860-862, and cases there cited. 

That this general principle of law, which has been established by many 
courts of authority throughout the United States, prevails in Massa- 
chusetts is to be gathered from the opinion in Merrill v. Lowell, 236 
Mass. 463, 466-468. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 117 

Citizenship — Derivative Naturalization — Child — Parent. 

Nov. 5, 1935. 

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

Dear Sir: — You have asked my opinion as to the application of the 
United States NaturaUzation Law to two sets of facts. 
Your first set of facts reads: — 

"1. Mother naturaHzed in 1933; father never naturahzed; minor child 
having resided in this country for five years. When did such child become 
a citizen?" 

Prior to the enactment on May 24, 1934, of 48 U. S. Stat. 797, of an 
amendment to the U. S. Code, Title 8, § 8, naturalization of the mother 
only of a foreign-born minor did not give the latter citizenship under the 
provisions of said section 8 as they then stood. In re Citizenship Status, 
25 Fed. (2d) 210. 

After the passage of the amendment in 1934 said section 8 read as 
follows : — 

"A child born without the United States of alien parents shall be deemed 
a citizen of the United States by virtue of the naturaUzation of or resump- 
tion of American citizenship by the father or the mother: Provided, That 
such naturalization or resumption shall take place during the minority of 
such child: And provided further, That the citizenship of such minor 
child shall begin five years after the time such minor child begins to reside 
permanently in the United States." 

Thereafter the naturalization of the mother as well as of the father 
conferred citizenship upon a minor child born abroad, and was retro- 
spective in so far as it related to such a child. The citizenship of the child 
was not to commence until five years after the time such child "begins 
to reside permanently in the United States." This latter clause also has 
a retrospective aspect, and the five years mentioned are to be calculated 
from the time when the child first began actually to make his permanent 
residence in this country, whether such time was prior to the date of his 
mother's naturalization or afterwards. 

The child mentioned in your first set of facts became a citizen on May 
24, 1934, the five-year period of residence having been already accom- 
plished. 

Your second set of facts reads : — 

"2. Mother naturahzed in 1935; father never naturaHzed ; minor child 
having resided in this country for five years. When does such child be- 
come a citizen?" 

This child became a citizen upon the day of his mother's naturalization, 
his required period of residence having been fulfilled at the time when by 
her naturalization under the terms of the amended statute he was to be 
"deemed a citizen," subject to the proviso as to residence, which in this 
case has already been satisfied. In fulfilling the period of residence the 
actual presence of the child in the United States is to be looked to, and the 
residence of his alien father during such period is not to be imputed to 
him to defeat his acquisition of citizenship. United States ex rel. Betty v. 
Day, 23 Fed. (2d) 489; 277 U. S. 598. 

Very truly yours, 

Paul A. Dever, Attorney General. 



118 P.D. 12. 

Soldiers^ Home — Employees — Forty-eight Hour Week Law. 

Nov. 6, 1935. 

Hon. Lawrence F. Quigley, Superintendent, Soldiers' Home in Massa- 
chusetts. 

Dear Sir : — You have in effect requested my opinion as to your 
authority to appoint to certain positions two employees of the Soldiers' 
Home, in view of the provisions of G. L. (Ter. Ed.) c. 149, § 39, as recently 
amended by St. 1935, c. 444, commonly known as the Forty-eight Hour 
Week Law. 

1. The facts as you present them to me in regard to the first of these 
employees, Miss S., are as follows: — 

"Miss S. entered the training school in March, 1929. She served three 
years as pupil nurse. Upon completion of her term as pupil nurse she 
was employed as head nurse, and has worked continuously up to the 
present time. She has been a regular permanent employee on the pay 
roll since March, 1929. 

The position we now seek to transfer Miss S. to is that of hospital 
supervisor, graduate nurse, and is a position created by the Forty-eight 
Hour Week Bill. Miss S. is to succeed Mrs. G., hospital supervisor, 
graduate nurse, in charge of the operating room, who will be transferred 
to night supervisor, under the classification of hospital supervisor, gradu- 
ate nurse, as a result of the Forty-eight Hour Week Bill. 

Miss S. is not a citizen." 

Said section 39, as amended by St. 1935, c. 444, § 1, reads: — 

"The hours of labor of laborers, workmen and mechanics, of ward at- 
tendants, ward nurses, industrial and occupational therapists and watch- 
men, and of employees in the kitchen, dining-room and domestic services, 
in state institutions, and of officers and instructors of state penal institu- 
tions, shall not exceed forty-eight in each week. Any person whose hours 
of labor are regulated by this section and whose presence is required at 
any such institution seven days a week shall be given at least four days 
off in each month, without loss of pay, in addition to the regular annual 
vacation. The words 'hours of labor' as used in this section shall not be 
deemed to include any period of time during which a person is in his 
living quarters wherever located although his presence there is required 
for the purpose of exercising a measure of supervision over patients or 
inmates through availability for duty during such time. This section shall 
not prevent the superintendent, warden, or executive officer from requir- 
ing the services of any person in any emergency where the health or safety 
of patients or inmates would otherwise be endangered, or in any extra- 
ordinary emergency, or in apprehending an escaped inmate, nor shall it 
apply to the hours of labor of any person whose position entitles him to 
family maintenance as a part of his compensation." 

St. 1935, c. 444, § 2, provides: — 

"Employment of additional persons by reason of the enactment of sec- 
tion one of this act shall be restricted to persons who are citizens of the 
commonwealth." 

Inasmuch as you state that Miss S. is already in the employment of 
your institution and is only being promoted to take the place of another 



P.D. 12. 119 

employee, she cannot, in my opinion, be regarded as one of the "addi- 
tional persons" mentioned in section 2 of said chapter 444. 

2. The facts, as you present them to me in regard to the second of these 
employees, are as follows: — 

Miss B. is not a citizen. She has had only temporary employment in 
your institution. You desire to transfer her to a permanent position, 
and I assume that her employment in such permanent position is made 
necessary by reason of the enactment of section 1 of said chapter 444. 

I am of the opinion that, under all the facts as you have set them forth 
in your letter. Miss B. is a member of that class referred to in said sec- 
tion 2 of chapter 444 as "additional persons" whose employment is made 
necessarj^ by reason of the enactment of said section 1, and, since she is 
not a citizen, she may not be given the proposed permanent position. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Federal Government — Acquisition of Land — Jurisdiction. 

Nov. 19, 1935. 
Hon. Samuel A. York, Commissioner of Conservation. 

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

"Under date of July 13, 1935, the President and Trustees of Williams 
College deeded to the United States of America certain property for the 
use of the United States Forest Service as an experimental forest." 

You ask my opinion upon the following questions of law : — 

"1. May the United States of America or any agent thereof acquire 
real estate in the Commonwealth of Massachusetts without the consent 
of the General Court? 

2. Or, in this specific case, can the United States of America accept a 
gift of real estate from the President and Trustees of Williams College 
for the purpose stated in the accompanying deed without an enabling 
statute? 

3. If there is no constitutional barrier to the acceptance of this gift, 
may the United States of America acquire additional land by purchase, 
without specific authority?" 

I answer your three questions in the affirmative. 

The United States and its agents, if properly authorized by Federal 
legislation, may acquire for public purposes land within the boundaries 
of this Commonwealth, by purchase, gift or devise, without the express 
consent of the Commonwealth, but the Commonwealth is not thereby 
deprived of jurisdiction over the land, except that it may not interfere 
with the full use and enjoyment of the purposes for which the land was 
acquired. Kohl v. United States, 91 U. S. 367. Fort Leavenworth R.R. 
Co. V. Lowe, 114 U. S. 525; Surplus Trading Co. v. Cook, 281 U. S. 647, 
650; Dickson v. United States, 125 Mass. 311; Divine v. Unaka Nat. Bank, 
125 Tenn. 98. 

Very truly yours, 

Paul A. Dever, Attorney General. 



120 P.D. 12. 

Alcoholic Beverages — Manufacturer and Wholesaler — Retailer — Loan. 

A manufacturer or wholesaler of alcoholic beverages may not guarantee 
the payment of a loan made by a third person to a retailer, under 
G. L. (Ter. Ed.) c. 138, § 25, as amended. 

Nov. 21, 1935. 

Alcoholic Beverages Control Commission. 

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

"Will you please advise us whether, in your opinion, a guaranty made 
by a brewing company in Massachusetts of a loan made by a finance 
company to a tavern keeper or other holder of a retail license, said loan 
to run for a period of ninety days or less, would be in violation of G. L. 
(Ter. Ed.) c. 138, § 25, as amended." 

G. L. (Ter. Ed.) c. 138, § 25, as amended, reads as follows: — 

"It shall be unlawful for any licensee under section twelve or fifteen 
to lend or borrow money or receive credit, directly or indirectly, to or 
from any manufacturer, wholesaler or importer of alcoholic beverages, 
and for any such manufacturer, wholesaler or importer to lend money 
or otherwise extend credit except in the usual course of business and for 
a period not exceeding ninety days, directly or indirectly, to any such 
licensee, or to acquire, retain or own, directly or indirectly, any interest 
in the business of any such licensee. The commission may revoke the 
license of any licensee who in its opinion is violating this section or par- 
ticipating in such a violation. 

Nothing in this chapter shall prevent a person holding any interest in a 
business licensed under section nineteen from holding at the same time 
any interest in not more than one business licensed under section eighteen." 

The preceding section is aimed to eliminate the abuses heretofore ex- 
isting in the distribution and sale of intoxicating liquors. The instant 
section was the method adopted by the Legislature to prevent the con- 
trol and supervision of the retail liquor business by wholesalers, import- 
ers and manufacturers. Commercial transactions between the retailer 
and wholesaler are restricted and limited, in order that the former shall 
not become so financially dependent upon the latter as to result in a 
practical transfer of the supervision and ownership of the retailer to the 
wholesaler. 

The making of loans to and the receipt of credit, beyond the limits 
enumerated, by the retailer and the acquisition of any proprietary in- 
terest by the wholesaler in the retailer's business are expressly forbidden. 

The giving of a guaranty in behalf of the retailer, whether in the form 
of a contract of guaranty or indemnity, or by endorsement, or as a 
surety, obligates the guarantor to make good the default of the guarantee. 
The effect of the usual guaranty is an extension of credit even though 
the obligation thus incurred is secondary or collateral to the promise of 
the guarantee to pay some third person. The default of the guarantee 
renders the guarantor liable to the creditor of the guarantee, and upon 
payment by the guarantor the latter becomes creditor of the guarantee, 
and is, therefore, entitled to be reimbursed for the amount expended. 

I am therefore of the opinion that the giving of a guaranty of the pur- 



P.D. 12. 121 

port set forth in your letter, even though it may be for the term of less 
than ninety days, is illegal and contrary to the above-cited section. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Teachers' Oath — Duty of Commissioner of Education — Documents. 

Nov. 25, 1935. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked my opinion upon certain questions rela- 
tive to the oath required of teachers under St. 1935, c. 370. 

"1. Shall he" (the Commissioner) "refuse to accept and file such docu- 
ments as carry a statement or comment other than the oath as prescribed 
in the law?" 

I answer your first question to the effect that you are not obliged to 
receive for filing under said chapter 370 any document which contains any- 
thing except the oath or affirmation in the language in which the same is 
set forth in said chapter 370, with the subscriber's name and the jurat 
necessarily accompanying it. 

"2. After these documents have been filed in the department, should 
they be open to personal inspection by the general public? " 

Although the precise language of said chapter 370 does not state that the 
documents containing the oaths or affirmations are to be "filed" by you, 
though requiring that they be "filed" with a superintendent of schools or 
a principal officer of an institution of learning and by him be "transmitted " 
to you, it appears to have been the intent of the Legislature by said chapter, 
as shown by the context, that such documents should be received and filed 
by you. That being so, after you have received them they become " public 
records," as those words are defined in G. L. (Ter. Ed.) c. 4, § 7, par. 
Twenty-sixth, and are subject to public inspection, under the terms of 
G. L. (Ter. Ed.) c. 66, § 10. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Teachers' Oath — Construction of Statute. 

Nov. 26, 1935. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked my opinion upon the two following ques- 
tions of law in relation to the so-called teachers' oath, provided for in St. 
1935, c. 370. 

"1. Do the words 'no professor, teacher, or instructor . . . shall be 
permitted,' which appear in section 1 of St. 1935, c. 370, refer to colleges 
not under the direct control of the Commonwealth? 

2. Does the effect of the words 'no professor, teacher, or instructor . . . 
shall be permitted,' which appear only in section 1 of St. 1935, c. 370, carry 
over by implication into section 2? " 

I answer both your questions in the affirmative. 

Very truly yours, 

Paul A. Dever, Attorney General. 



122 P.D. 12. 

Teachers' Oath — Federal Employment — School. 

Nov. 27, 1935. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have written me as follows with relation to the so- 
called teachers' oath required by St. 1935, c. 370: — 

"... These are teachers who are employed in Massachusetts but whose 
services are directed and paid for by agencies of the Federal government. 
I should appreciate your giving me your opinion on the following ques- 
tions : 

1. Does a teacher engaged in an educational activity in a CCC camp, 
employed directly by the director of the camp, come within the provisions 
of said law? 

2. Does a teacher employed in a CCC camp, hired directly by the 
Federal government and paid directly from the Federal government, come 
within said law? 

3. Does a teacher employed by a local superintendent of schools under 
authority of the WPA, his salary being paid from funds allocated by the 
Federal government to the State, come within the provisions of said law?" 

1. I answer your first question to the effect that the provisions of section 
30A, inserted in G. L. (Ter. Ed.) c. 71 by said chapter 370, provide, in their 
applicable part, that — 

"Every citizen of the United States entering service, on or after October 
first, nineteen hundred and thirty-five, as professor, instructor or teacher 
at any college, university, teachers' college, or public or private school, in 
the commonwealth shall, before entering upon the discharge of his duties, 
take and subscribe to, . . . the following oath or affirmation: ..." 

Section 2 of said chapter 370 provides, in its applicable part, that "Every 
citizen of the United States who, upon the effective date of this act, is in 
service as a professor, instructor or teacher at any college, university, 
teachers' college, or public or private school, in the commonwealth, shall," 
after October 1, 1935, subscribe to the oath or affirmation required by said 
section 30 A. 

Accordingly, if a teacher "engaged in an educational activity in a CCC 
camp" is in service at a college, university, teachers' college, or public or 
private school he comes within the provisions of said chapter 370 and 
must subscribe to the oath or affirmation. 

Whether or not such a teacher is in service at a "school" or other insti- 
tution mentioned in the statute is a question of fact, upon which I have 
no information nor upon which am I required to pass. 

2. I answer your second question to the effect that it is immaterial 
whether or not a teacher is hired or paid by the Federal government. If 
he is in fact in service or about to enter service at a "school" or other 
institution of learning mentioned in the statute, in the Commonwealth, 
and is a citizen of the United States, he comes within the terms of said 
chapter 370 and is required to subscribe to the oath or affirmation. 

3. I answer your third question in the affirmative upon the assumption 
that the teacher to whom you refer is in service or about to enter service 
at a public or private school. 

Persons hired or paid by the Federal government, who perform duties 
in the Commonwealth outside of territory ceded to the United States, are 



P.D. 12. 123 

subject to laws of Massachusetts like the instant one, made in pursuance 
of the State's sovereign authority for governance throughout its jurisdic- 
tion under the police power. The agencies of the Federal government 
are not exempt from State control by regulations made under such police 
power except in so far as such regulations may interfere with or impair 
their efficiency in performing the functions through which they are de- 
signed to serve the Federal government. Commonwealth v. Closson, 229 
Mass. 329; Westeim Union Telegraph Co. v. Neio York, 38 Fed. 552; 
Western Union Telegraph Co. v. Foster, 224 Mass. 365, 377; Brodnax v, 
Missouri, 219 U. S. 285; Merchants Exchange v. Missouri, 248 U. S. 365; 
Savage v. Jones, 225 U. S. 501, 533. 

The provisions of chapter 370 are not in conflict with any provisions of 
the Federal Constitution or statutes, and do not tend to interfere with or 
impair the efficiency of Federal agencies or agents in performing such 
functions; therefore, such agents are bound by its provisions and in ap- 
propriate instances should take the prescribed oath or affirmation. 

Very truly yours, 

Paul A. Dever, Attorney General, 

Teachers' Oath — Practice Teaching. 

Nov. 30, 1935. 
Dr. Payson Smith, Commissioner of Education. 

Dear Sir: — You have asked me the following question relative to the 
provisions of St. 1935, c. 370, concerning the teachers' oath, so called : — 

''I am writing to ask whether undergraduate students in State and pri- 
vate institutions, who are assigned practice teaching duties as a part of 
their training for teaching service, are required to take the oath or affirma- 
tion as required under St. 1935, c. 370, before entering on their duties in 
practice teaching." 

I assume that one who engages in "practice teaching duties" neces- 
sarily, as a part of such duties, teaches. Consequently, he is a "teacher," 
within the meaning of that word as used in said chapter 370, and is re- 
quired to take the designated oath or affirmation. 

Very truly yours, 

Paul A. Dever, Attorney General. 



124 P.D. 12. 

Opinion upon an Application to the Attorney General for Leave 
TO file an Information in the Nature of Quo Warranto against 
the Governor. 

Quo Warranto — Governor — Oath of Office. 

Taking of the prescribed oaths of office by the Governor from the Secre- 
tary of the Commonwealth, in the presence of the House of Repre- 
sentatives and of some members of the Senate, no President of the 
Senate having been seasonably chosen, places the Governor in full 
possession of all the powers incident to his office. 

Whether he is de facto or de jure in the exercise of such powers is a question 
only of academic interest, for the determination of which in regard to 
a collateral matter the public welfare does not warrant the Attorney 
General in invoking the aid of the courts. 

This is an application to the Attorney General for the filing by him of 
an information in the nature of quo warranto proceedings against His 
Excellency, Governor James M. Curley. The application is brought by 
William R. Scharton, Esquire, counsel for Abraham Faber, a convicted 
murderer now under sentence of death. 

Faber's petition for a writ of certiorari was denied on June 3, 1935, by 
the Supreme Court of the United States. Subsequently, on the same day, 
a petition to enjoin the warden of the State Prison from carrying out the 
death penalty was denied in the United States District Court at Boston. 
Thereafter, on the same day, a hearing was held before the Attorney 
General upon the present application, at which hearing His Excellency 
the Governor was not present or represented. 

The allegations contained in the information, permission to file which 
is now sought, are broad and sweeping. It is contended that Governor 
Curley has never taken the oath of office in the manner prescribed by 
article I of chapter VI of the Constitution, providing that "the said oaths 
. . . shall be taken and subscribed by the governor, . . . before the presi- 
dent of the senate, in the presence of the two houses of assembly"; that 
in fact the oath was administered to the Governor on January 3, 1935, 
by Frederic W. Cook, Secretary of the Commonwealth, in the presence 
of the members of the House of Representatives, but not in the presence 
of the Senate; that at no time subsequent was the oath of office adminis- 
tered to the Governor in accordance with the above-cited provision of 
our Constitution. It is, however, conceded by the petitioner that Gover- 
nor Curley was duly elected Governor of the Commonwealth for the 
two-year term commencing January 3, 1935; that on that day and ever 
since he has actually held the office of Governor and has exercised all the 
authority by law conferred upon the incumbent of that high office. The 
sole ground for seeking the writ of quo warranto is the failure of the Gover- 
nor to take the oath of office in the manner prescribed by the Constitution. 

At the oral argument, made in support of the present application, the 
only ground upon which the petitioner claimed that he had been injured 
by the neglect of the Governor to take the oath of office from the Presi- 
dent of the Senate in the presence of the Senate and the House is that 
there is no one at the present time qualified to receive a request for com- 
mutation of the sentence of death. 

On February 26, 1935, the Superior Court of Norfolk County ordered 
that the death penalty be imposed upon Abraham Faber during the week 



P.D. 12. 125 

of April 28, 1935. Shortly before the last-mentioned date Mr. Scharton, 
accompanied by George Stanley Harvey, Esquire, counsel for other co- 
defendants, and the Attorney General appeared before His ICxcellency, 
Governor Curley. Counsel for the defendants requested a respite upon the 
ground that they desired an opportunity to file petitions for writs of certio- 
rari with the Supreme Court of the United States, and that, as the time 
was too short after the final decision of the Supreme Judicial Court of 
Massachusetts within which to prepare and print a transcript of the 
record and to have the case docketed in Washington before the sentence 
of the court would be carried out, they desired a respite in order to enable 
them to file such petitions. Their request was granted by the Governor 
upon the express understanding that immediate steps would be taken to 
prepare and file such petitions, and, accordingly, the sentence of death 
was respited to May 4, 1935. Appeals were in fact entered in the Supreme 
Court at Washington prior to the last-mentioned date, but it appearing 
that it would be improbable that any decision would be made thereon by 
the court prior to June 3, 1935, a further request was made upon His 
Excellency, Governor Curley, by Maurice Palais, Esquire, an associate of 
Mr. Scharton, and by Air. Harvey, counsel for the co-defendants. The 
Governor, after a hearing, determined that the ends of justice would be 
met by delaying the execution until the defendants could have an oppor- 
tunity to secure the judgment of the United States Supreme Court on the 
questions which they had presented to it for determination, and, accord- 
ingly, a respite was granted to June 5, 1935. 

It is indisputable that both of these respites were sought for and granted 
to Faber by applications made directly and personally to the present 
Governor, thereby recognizing that he was acting as chief executive of the 
Commonwealth. It is also indisputable that there was also sought the 
favorable approval of the Executive Council on the Governor's action. 
Faber was, therefore, the recipient of two acts of executive clemency in 
his behalf. 

The fact that His Excellency the Governor, on January 3, 1935, took 
the prescribed oaths of office from the Secretary of the Commonwealth 
was a matter of general public discussion, and was not only prominently 
published by the newspapers but was also frequently mentioned on 
Inauguration Day by the various radio stations. 

There was nothing shown in the hearing before me to indicate that both 
Faber and his counsel did not have full knowledge that the oaths were 
administered by the Secretary of the Commonwealth. Shortly after the 
oaths were administered they sought and secured executive clemency, 
and it is only now, when it is apparent that no further respites are to be 
granted by the Governor, that they have recourse to this unusual pro- 
ceeding for the sole purpose of delaying the execution of sentence imposed 
upon Faber by a verdict which has been already twice upheld by our own 
Supreme Judicial Court, and which the Supreme Court at Washington 
on two occasions has considered of insufficient merit to warrant further 
proceedings. 

If, as the petitioner now claims, his constitutional rights have been 
impaired, it was incumbent upon him seasonably to assert those rights. 
Commonwealth v. Dascalakis, 246 Mass. 12, 31; Lehowitch, Petitioner, 235 
Mass. 357, 363. 

The petitioner contends that he is deprived of a lawful opportunity of 
seeking commutation of his sentence. It is apparent that no substantial 
right of the petitioner in this respect has been impaired or invaded. In 



126 P.D. 12. 

the first place, it is clear, from the statements made by His Excellency on 
the occasion upon which each of the respites was granted, on the visit of 
George Stanley Harvey, Esquire, counsel for Faber's co-defendants, when 
he requested a further mental examination of his two clients, and at the 
conference of the Governor with the parents of Abraham Faber, when 
they sought further clemency, that no reasonable expectation can now be 
entertained of any further favorable action from His Excellency in behalf 
of this defendant. Within a day or two, in a letter to Mr. Harvey, the 
Governor stated that "Litigation must at some time come to an end. My 
honest conviction is that that point has been reached in these cases." 
The Governor's letter to Mr. Harvey further contained the statement that 
"there is nothing that would warrant me, as Governor, to further inter- 
fere with the execution of the sentences imposed upon them." 

It is clear, therefore, that if such an application for commutation were 
now made His Excellency would not grant it, and that, in fact, he would 
not, and could not be compelled to, submit such an application to the 
Executive Council. Juggins v. Executive Council, 257 Mass. 386. 

In the next place, it is obvious that the present Governor has full 
authority, as matter of law, to receive, reject or grant an application for 
clemency, with the advice and consent of the Council. In every respect, 
he has and possesses all the powers imposed by the Constitution and the 
law upon the chief executive of this Commonwealth, which he is law- 
fully authorized to exercise to the same extent and in the same manner 
as could any incumbent of the office of chief executive. 

The petitioner concedes that the respective oaths of the tenor and 
purport set forth in the Constitution were actually taken and subscribed 
to by His Excellency on January 3, 1935. The only contention now 
made is that they should have been administered by the President of 
the Senate rather than by the Secretary of the Commonwealth, and that 
the oaths should have been taken in the presence of the House of Rep- 
resentatives and the Senate. It is apparent that the oath was taken in 
the presence of the House of Representatives and also in the presence 
of some members of the Senate. It is also apparent that there was no 
President of the Senate elected until several days subsequent to the 
inaugural of the Governor. The people of the Commonwealth had duly 
elected His Excellency as Governor of the Commonwealth of Massachu- 
setts for a two-year term commencing January 3, 1935. Whether the 
business of the State should be suspended until the Senate had selected 
a President is unnecessary to decide. 

The petitioner concedes further that since January 3, 1935, His Excel- 
lency has actually occupied the office of Governor; that he has exercised 
and performed duties pertaining thereto; that there is no other person 
who claims title to the office; that the right of the present Governor to 
continue to occupy the office is challenged on no ground other than 
that of failure to take the oath before both houses of the General Court, 
as above outlined. 

It is settled law in this Commonwealth that the actions of an officer 
de facto are just as valid in every respect as if he were an officer de jure. 
That question in this State was settled nearly a century and a quarter 
ago when the Supreme Court, in the case of Fowler v. Beebe, 9 Mass. 
231, decided that a defendant in a civil action could not raise the ques- 
tion that the service of a writ was made upon him by one who was not 
a deputy sheriff de jure. It appeared in that case that the deputy who 
served the writ was appointed by a sheriff who, the defendant sought 



P.D. 12. 127 

to show, was a mere sheriff de facto. It was held that the validity of 
the sheriff's title to office was a collateral issue and that the question 
could not be decided except in a direct proceeding against the sheriff. 
That case has never been overruled but has been followed and confirmed 
in all subsequent adjudications. 

In Commonwealth v. Kirby, 2 Cush. 577, the defendant was indicted 
and convicted on a charge of an assault upon one Sanderson, a constable 
of the city of Cambridge, and sought by way of defense to raise the 
question that the warrant under which Sanderson was acting was issued 
by a justice of the peace, one Edwards, who was also a constable of the 
city, and, consequently, holding two incompatible offices, which the 
defendant claimed resulted in a vacation of his office as justice of the 
peace. The evidence to prove this contention was rightly excluded 
because, as remarked in the opinion — 

"We are of opinion that Edwards, holding a commission as justice of 
the peace, and having been legally qualified to act as such, and continu- 
ing to act in that capacity with full powers, unless for the objection now 
taken, he would, as respecting third persons, be considered as a justice 
of the peace de facto, and his warrant would justify the officer to whom 
it was directed, in making service of the same." 

In Petersilea v. Stone, 119 Mass. 465, the court held that the service 
of a writ upon a poor debtor by an officer who was at least an officer 
de facto constituted a proper service of the writ, and that the validity 
of such service could not be challenged in the subsequent poor debtor 
proceedings. 

One Sheehan brought habeas corpus proceedings to be released from 
confinement in the Salem jail in execution of the sentence imposed upon 
him in a police court by a special justice for petty larceny, at a time 
when the special justice was also a member of the House of Representa- 
tives. The prisoner sought release on the theory that a special justice, 
b}^ becoming a member of the House of Representatives, was no longer 
entitled to occupy his judicial position. The court refused to hear such 
evidence and dismissed the petitioner's writ. In the opinion of the court 
it was stated {Thomas Sheehan^ s Case, 122 Mass. 445): — 

"Upon well settled principles, it would be inconsistent with the con- 
venience and security of the public, and with a due regard to the rights 
of one acting in an official capacity under the color of, and belief in, 
lawful authority to do so, that the failure of his acts as a justice should 
be disputed, or the legal effect of his election and qualification as a 
representative be determined, in these proceedings to which he was not 
a party." 

Although the question as to the validity of the acts of a special justice 
in sentencing Sheehan could not be inquired into at the instance of the 
prisoner, yet, seven months after the decision in that case, in proceedings 
brought against this judge to remove him from his position as such special 
justice, the court, in passing upon the validity of the demurrer, ruled 
that he was illegally holding his position as special justice of the police 
court. Commonwealth v. Hawkes, 123 Mass. 525. 

In Commonwealth v. Taber, 123 Mass. 253, a defendant charged with 
the illegal keeping of intoxicating hquor attempted to question the eligi- 
bility of the judge of the district court to try him, on the ground that the 
judge was also the mayor of a city within his judicial district. The plea 



128 P.D. 12. 

of the defendant, setting forth this contention, was overruled. "As, upon 
the allegations of the plea, he was at least a judge de facto, his jurisdiction 
could not be controverted upon this ground, nor the question whether 
the two offices were incompatible be tried, in a proceeding to which he 
was not a party." 

In Commonwealth v. Wotton, 201 Mass. 81, 84, the court said: — 

"The difference and the only difference between an officer de jure and 
an officer de facto is that an officer de jure cannot be removed from his 
office in a proceeding instituted directly for that purpose and an officer 
de facto can be removed in such a proceeding. Until a de facto officer is 
removed in such a proceeding his acts are as valid as the acts of a de jure 
officer." 

Manifestly, there is nothing in the contention raised by the petitioner 
that because the Governor, as he alleges, is only a de facto officer he is 
denied the opportunity of filing a petition for commutation of his death 
sentence. There can be no doubt whatever under the authorities above 
cited, and in accordance with the weight of authority in other jurisdic- 
tions, that the Governor was fully authorized to accept such an applica- 
tion, and that his action in rejecting or granting the same would be valid 
in all respects to the same extent as if he were a Governor de jure. 

The rule prevailing in this Commonwealth is the rule prevailing in the 
Federal jurisdiction. Cocke v. Halsey, 16 Pet. 71; McDowell v. United 
States, 159 U. S. 596; Norton v. Shelby County, 118 U. S. 425; Ball v. 
United States, 140 U. S. 118. 

The petitioner has no standing whatever to bring proceedings against 
the chief executive to require him to take the oath of office in the manner 
in which he contends the Constitution requires. Rice v. The Governor, 
207 Mass. 577. 

Even if the opportunity to seek commutation of a sentence can be 
considered higher than a mere personal privilege, and determined to be 
a matter of right, yet it is of such a nature that its refusal by the Gover- 
nor is final and conclusive. Moreover, it always has been incumbent 
upon one who challenges the validity of an official act alleged contrary 
to the provisions of the Constitution to show that an injury, special and 
peculiar to himself, has thereby been incurred. It is clear, however, that, 
as a matter of law, his opportunity to seek, and if possible to secure, a 
commutation of sentence is separate, apart and in no way dependent 
upon whether the Governor is an official de facto or de jure. Under such 
circumstances, he has no right, in furtherance of any private interest, to 
raise the issue whether such an official is to be denominated in one class 
or the other. The enforcement of a private right must be based upon 
a private injury. 

In McGlue v. County Commissioners, 225 Mass. 59, 60, it is stated : — 

"It is only when some person invokes the aid of the judiciary in resist- 
ing the operation of such laws to the harm of his liberty, his rights or his 
property, that the objection of unconstitutionality can be raised. Only 
those who have a right affected can question the validity of an act. 
Strangers have no standing in the courts upon such matters. This is 
manifestly a sound principle. It is a part of the very fabric of our law. 
It was declared early by this court. It has been adhered to consistently. 
It has been adopted generally. It would be unfortunate if volunteers 
and strangers could institute at will proceedings to attack the constitu- 
tionality of public acts." 



P.D. 12. 129 

If, however, the petitioner is seeking as a private citizen "to enforce a 
pubhc duty not due to the government as such" {Attorney General v. 
Boston, 123 Mass. 460, 469), or is attempting to vindicate a public right 
by seeking the performance of a pubhc duty owed to the pubhc as the 
real party in interest (Cox v. Segee, 206 Mass. 380), yet in all such cases 
it is essential upon a private citizen seeking to become a relator "to show 
that he is a citizen and as such interested in the execution of the laws." 
High, E.x. Leg. Rem. (3d. ed.) § 431, cited in Brewster v. Sherman, 195 
Mass. 222, 224. 

The Legislature, evidently recognizing the character of the writ in 
question, put the obligation upon the Attorney General of deciding 
whether or not the circumstances warranted resort to this extraordinary 
writ. The statute (G. L. [Ter. Ed.] c. 249, § 12) provides: — 

"The supreme judicial court shall have jurisdiction of information in 
the nature of quo warranto filed by the attorney general against a person 
holding or claiming the right to hold an office or employment, the salary 
or compensation of which is payable by the commonwealth, a county, 
city or town." 

It was never the intent of the law that this provision should be used 
as a further instrument of delay in the execution of criminal sentences 
or to furnish an additional weapon of defense for purposes of delay. 

It has been uniformly held by my predecessors in office that the legal- 
ity of the acts of a de facto officer is not subject to collateral attack. 
Attorney General ex rel. Elisha Greenhood v. Erastus Worthington, Jr., et 
al., I Op. Atty. Gen. 617; Attorney General v. Charles P. Curtis, Jr., 
II ibid. 632; Attorney General ex rel. Samuel Kason v. Daniel J. Kiley, 
II ibid. 635. 

Attorney General Herbert Parker, in his opinion in the case of Attor- 
ney General v. Charles P. Curtis, Jr., II Op. Atty. Gen. 632, states: — 

"The petitioner in this case seeks to impeach the title of a judge whose 
jurisdiction he did not challenge while he was on trial. He was appar- 
ently contented until the respondent decided against him. In similar 
cases in England, where an act of Parliament (St. 9 Anne, c. 20) author- 
ized applications to be made by private individuals to the court of King's 
Bench for an order directing the king's attorney to file an information, 
it has been frequently held that, when such applications were made by 
persons who had not objected to the regularity of the proceedings com- 
plained of until after defeat, the application would be denied. Rex v. 
Dawes, 4 Burrows, 2120; King v. Parkyn, 1 Barnewall & Adolphus, 652, 
To the same effect is Dorsey v. Anslie, 72 Ga. 460; People v. Waite, 70 
111. 25." 

It is obvious, therefore, regardless of the de jure or de facto status of 
His Excellency the Governor, that his official acts are valid. It is argu- 
able that the constitutional provision concerning the taking of his oath 
of office is director}^ rather than mandatory, and that the clear decision 
of the electorate should be given expression rather than thwarted by a 
strict adherence to a prescribed mode of qualification. For every legal 
purpose the Governor is in full possession of all the powers incident to 
his office. The question as to whether he is de facto or de jure in the 
exercise of these powers is one only of academic interest, for the deter- 
mination of which, in the exercise of the sound discretion of the office with 
which I am entrusted, the aid of the courts should not be invoked. The 



130 P.D. 12. 

right to institute proceedings of this character is one which should be 
used only with a view to furthering the public welfare. 

No evidence was adduced at the hearing showing that any request 
was ever made upon His Excellency to subscribe to the oath of office 
before the President of the Senate and in the presence of both the Senate 
and the House. There is nothing whatever to show that if such a request 
were made it would not be complied with. No extraordinary writ 
should be sanctioned unless it is first demonstrated that a situation 
complained of cannot otherwise be easily remedied. The ordinary writ 
of injunction would not be granted in such circumstances. Owen v. 
Field, 12 Allen, 457, 458; Lahagnara v. Kane Furniture Co., 289 Mass. 52. 

The present application is a product of the exigencies of the situation 
in which Faber now finds himself. No reflection whatever is intended 
upon counsel, skilled and experienced trial lawyer, who is endeavoring 
to use every legitimate method that an honorable member of the bar, 
with his ability and resourcefulness, would be expected to employ. 

The Attorney General, however, cannot be expected to lend his aid 
in furthering delay of the execution of the sentence imposed after a 
lengthy trial, found by our Supreme Judicial Court to be free from error. 
Such action on my part would be inconsistent with the public interest. 

Accordingly, the use of the name of the Attorney General is refused. 

Paul A. Dever, Attorney General. 



P.D. 12. 



131 



INDEX TO OPINIONS 



appeal 



58, 



Alcohol; licenses; Department of Public Health; local boards of health 
AlcohoHc beverages: license; bankruptcy; assignee 
Cider; wholesaler 
Common victualler 
Local licensing board 
Sales on Sundays 
Time restrictions 
Partnership 
Population of a town; seasonal license . 

Town; census 

Vote of municipality; taverns 
Wholesalers and importers; warehouse . 
Manufacturer and wholesaler; retailer; loan 
Member of local licensing board; engaging in business 

Pharmacist; employee 

Regulations; licensed premises; device for gambling 
Armory; use for nonmilitary purposes; game of beano; license 
Attorney General: opinions; hypothetical question 

Municipal authorities 

Auditor of the Commonwealth: duties; Lowell Textile Institute 
Banking; co-operative bank; Federal savings and loan association 
Home Owners' Loan Corporation bonds; investment; The Co-operative 

Central Bank 
Savings bank investments; bonds; electric companies; consolidation 
Boston Elevated Railway Company; powers of trustees . 
Citizenship; derivative naturalization; child; parent 
Civil service; disabled veteran; proofs of disability . 

Probationary period; promotion 

Temporary' emergency unemployment; cities and towns 

Veterans' preference; ser\'ice 

Constitutional law; Boston Elevated Railway Company; powers of trustees 
Conversion of State co-operative bank into a Federal sa\ings and loan 

association 

Old age assistance; institutional residents 

Power of Legislature ; nuisance . 

Railroad; eminent domain; public purpose 

Taxation; tax on profits made from real property taken or bought by the 

Commonwealth 

Workmen's compensation; compulsory insurance .... 

Corporation: charter; illegal purpose 

Correction, Commissioner of; rules; approval of Governor and Council 
Dentist; registration: annual fee; employed by Commonwealth 
Emergency Finance Board ; loans on tax titles by the Commonwealth 
Eminent domain; public purpose; railroad . 
Federal government; acquisition of land; jurisdiction 
Fishing; public ways; posted land 

Flag; display in class rooms 

Placing words thereon; veterans' organizations 

Salute; schools; penalty 

Governor; oath of office; quo warranto 

Health, local boards of; soft drinks; licenses; disposal of fees 

Home Owners' Loan Corporation; bonds; "obligations of the United States " 



PAGE 

28, 29 

S3 

114 

56 

81,95 

66 

112 

103 

86 

37 

112 

107 

120 

50 

51 

109 

69 



132 P.D. 12. 

PAGE 

Houses of correction; prison industries; purchases . . . . . .96 

Hunting; cities and towns; regulation 88 

Public ways; posted land 44 

Judicial functions; impartiality; member of quasi-judicial board ... 45 

Labor; weekly wages; private charitable institutions 89 

Licenses; alcohol; Department of Pubhc Health; local boards of health 28, 29 

Alcoholic beverages; bankruptcy; assignee 83 

Cider; wholesaler 114 

Common victualler 56 

Local licensing board; appeal 58, 81, 95 

Sales on Sundays 66 

Time restrictions 112 

Partnership 103 

Population of a town; seasonal license 86 

Town; census 37 

Vote of municipality; taverns 112 

Wholesalers and importers; warehouse 107 

Armory; use for nonmilitary purposes; game of beano 69 

Business of receiving money for transmission to foreign countries; bond . 24 

Fuel oil; appeal; State Fire Marshal 36 

Methyl alcohol; sale; agent; association 26 

Narcotics; manufacturers and wholesalers 110 

Plumbers; buildings owned or occupied by the Commonwealth .... 38 

Race track within fifty miles of a race track outside the Commonwealth . 34 

Soft drinks; local boards of health; disposal of fees Ill 

Metropolitan District Water Supply Commission; expenditures; Governor 

and Council; approval 97 

Milk; legal standard; solids; fat 89 

Manufacture of ice cream; contracts; Milk Control Board .... 53 
Minimum Wage Commission; authority; public employees; private em- 
ployees 92 

Municipality; action of a board; two-thirds vote 115 

Authority; appropriations; gratuities 80 

Narcotics; license; manufacturers and wholesalers 110 

National Guard; compensation for injuries; Federal service .... 40 

Town; target practice; transportation 39 

Old age assistance; institutional residents 49 

Parole; eligibility; sentences 61 

Plumbing; licenses and permits; Commonwealth 38 

Prisons; industries; purchases by houses of correction 96 

System of compensation for inmates; discretion 96 

Public building; vessel; certificate of occupancy 30 

Public institution; trustee; expenses; reimbursement 104 

Public utilities; telephone locations; interstate business 42 

Public Works, Department of; licensed structures in tidewaters; repairs . 93 

Quo warranto; Governor; oath of office 124 

Racing Commission; licenses; racetrack — . . 34 

Registration in medicine; applicant; degree; equivalent 88 

Schools; flag; display in class rooms 103 

Salute; penalty 108 

Sentence; parole; payment of fine 91 

State Farm; Massachusetts Reformatory 55 

Soldier or sailor; eligibility for State bonus; discharge 108 

Soldiers' Home; employees; forty-eight hour week law 118 

South Essex Sewerage Board; city of Peabody; member of board ... 69 
Taxation; tax on profits made from real property taken or bought by the 

Commonwealth 76 



P.D. 12. 133 

PAGE 

Teachers' oath; construction of statute 121 

Duty of Commissioner of Education; documents 121 

Federal employment; school 122 

Positions; form; time of subscribing; riding school; school for beauty 

culture; temporary lecturers 105 

Practice teaching 123 

Teachers' retirement system; public school; private academy ... 32 

Wages; weekly payment; employees; salary 102 

Workmen's compensation; compulsory insurance 74 



134 P.D. 12. 



RULES OF PRACTICE 

In Interstate Rendition. 

Every application to the Governor for a requisition upon the executive authority 
of any other State or Territory, for the deUvery up and return of any offender 
who has fled from the justice of this Commonwealth, must be made by the district 
or prosecuting attorney for the county or district in which the offence was com- 
mitted, and must be in duplicate original papers, or certified copies thereof. 

The following must appear by the certificate of the district or prosecuting 
attorney : — 

(a) The full name of the person for whom extradition is asked, together with 
the name of the agent proposed, to be properly spelled. 

(b) That, in his opinion, the ends of public justice require that the alleged 
criminal be brought to this Commonwealth for trial, at the public expense. 

(c) That he believes he has sufficient evidence to secure the conviction of the 
fugitive. 

(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 application, as 
near as may be. 

(/) If the fugitive is known to be under either civil or criminal arrest in the 
State or Territory to which he is alleged to have fled, the fact of such arrest and 
the nature of the proceedings on which it is based must be stated. 

(g) That the application is not made for the purpose of enforcing the collection 
of a debt, or for any private purpose whatever; and that, if the requisition applied 
for be granted, the criminal proceedings shall not be used for any of said objects. 

(h) The nature of the crime charged, with a reference, when practicable, to 
the particular statute defining and punishing the same. 

(i) If the offence charged is not of recent occurrence, a satisfactory reason 
must be given for the delay in making the application. 

1. In all cases of fraud, false pretences, embezzlement or forgery, when made 
a crime by the common law, or any penal code or statute, the affidavit of the 
principal complaining witness or informant that the application is made in good 
faith, for the sole purpose of punishing the accused, and that he does not desire 
or expect to use the prosecution for the purpose of collecting a debt, or for any 
private purpose, and will not directly or indirectly use the same for any of said 
purposes, shall be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying the Executive that 
the alleged criminal has fled from the justice of the State, and is in the State on 
whose Executive the demand is requested to be made, must be given. The fact 
that the alleged criminal was in the State where the alleged crime was committed 
at the time of the commission thereof, and is found in the State upon which the 
requisition was made, shall be sufficient evidence, in the absence of other proof, 
that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in duphcate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and circum- 
stances showing the commission of the crime charged, and that the accused perpe- 
trated the same, must be shown by affidavits taken before a magistrate. (A notary 
public is not a magistrate within the meaning of the statutes.) It must also be 
shown that a complaint has been made, copies of which must accompany the 



P.D. 12. 135 

requisition, such complaint to be accompanied by affidavits to the facts consti- 
tuting the offence charged by persons having actual knowledge thereof, and that 
a warrant has been issued, and duplicate certified copies of the same, together 
with the returns thereto, if any, must be furnished upon an application. The 
affidavit or affidavits should contain sufficient facts to make out a prima facie case 
of guilt, and should not be a reiteration of the form of the complaint nor contain 
conclusions of law. 

5. The official character of the officer taking the affidavits or depositions, and 
of the officer who issued the warrant, must be duly certified. 

6. Upon the renewal of an application, — for example, on the ground that 
the fugitive has fled to another State, not having been found in the State on which 
the first was granted, — new or certified copies of papers, in conformity with the 
above rules, must be furnished. 

7. In the case of any person who has been convicted of any crime, and escapes 
after conviction, or while serving his sentence, the application may be made by 
the jailer, sheriff, or other officer having him in custody, and shall be accom- 
panied by certified copies of the indictment or information, record of conviction 
and sentence upon which the person is held, with the affidavit of such person 
having him in custody, showing such escape, with the circumstances attending 
the same. 

8. No requisition will be made for the extradition of any fugitive except in 
comphance with these rules. 

750. 3-'36. No. 6140. 



Jul 2 4 '41 w.pju