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

Public Document No. 12 



Ci)e Commontueaiti) of 9^assatbumte 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1936 




Public Document No. 12 



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REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1936 







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Department of the Attorney General, 
Boston, January 20, 1937. 

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, 1936. 



Very respectfully, 



PAUL A. DEVER, 

Attorney General. 



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DEPARTMENT OF THE ATTORNEY GENERAL. 
State House. 



Attorney General. 
PAUL A. DEVER. 



Assistants. 



James J. Ronan. 
Henry P. Fielding. 
Roger Clapp. 
John S. Derham. 
Arthur V. Sullivan. 
Edward McPartlin. 
Maurice M. Goldman. 
Walter W. O'Donnell. 
John Patrick Connolly. ^ 
Raymond H. Favreau. 
James J. Bacigalupo. 
Donald R. Simpson. 
GoLDA Richmond Walters. ^ 
Mary Sienkiewicz Dumas. ' 
Raymond E. Sullivan. ^ 

Chief Clerk. 
Louis H. Freese. 

Cashier. 
Harold J. Welch. 



Resigned November 30, 1936. ^ Resigned December 31, 1935. ' Appointed January 1, 1936. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Year. 



$143,466 59 


396 36 


8,000 00 


16,500 00 


15,000 00 


1,713 65 


$185,076 60 



General appropriation for 1936 

Balance brought forward from 1935 appropriation 

Appropriation for small claims 

Appropriation under G. L. (Ter. Ed.) c. 12, § 3B 
Appropriation for advertising unclaimed bank deposits 
Transfer from extraordinary expenses and small items 



Expenditures. 

For salary of Attorney General $8,000 00 

For salaries of assistants 61,246 23 

For salaries of all other employees 36,669 94 

For sheriffs' fees, court stenographers and all other special services . 29,790 49 

For law library 842 35 

For office expenses and travel 7,374 80 

For court expenses 1,522 99 

For small claims 7,997 01 

For claims under G. L. (Ter. Ed.) c. 12, § 3B 15,311 37 

Advertising unclaimed savings bank deposits 10,846 20 

Total expenditures $179,601 38 

: Balance ■ $5,475 22 



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Department of the Attorney General, 
Boston, January 20, 1937. 

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, 1936, to the number of 7,107 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 .... 

Department of the Adjutant General 

Metropolitan District Commission 

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

Petitions for instructions under 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 .......... 16 

Now pending .......... 10 



739 

135 

70 

295 

2 

4 

1 

4 

38 

41 

518 

52 

391 

25 



4,766 
26 



P.D. 12. 



Flood Control. 



The devastating floods of March, 1936, of both the Connecticut and Merrimac 
rivers, called immediate attention to the urgent need for controlling the waters of 
both rivers, especially in times of freshets. 

Congress passed an act which, in co-operation with the States, would permit 
the erection of the necessary dam structures and other works and appurtenanc.es 
to control the flow of the waters of these rivers and to protect the lives, health 
and safety of the inhabitants in the vicinity, and probably permit the use of these 
waters for the generation of electrical energy. 

It will be necessary to secure legislation in Massachusetts creating a statutory 
board to represent the State in negotiating with the other New England States 
for the purpose of agreeing upon the terms, especially the proportion of the 
cost of the erection of flood relief structures. This commission should also be 
authorized to sign compacts in behalf of the Commonwealth of Massachusetts 
with the other States interested in this common problem. 

The undertaking of such an extensive program could then be commenced in 
accordance with the compacts agreed upon by the various States. 

I have prepared a draft of legislation to create a board of commissioners to 
represent the State and to authorize this board to sign compacts with the other 
interested States, and have also drafted a form of an interstate compact to be 
entered into by these States in accordance with the aforesaid act of Congress. 

Planetarium. 

The time has come when by appropriate legislation the long-felt desire of so 
many of our citizens for the establishment of a planetarium may be realized. 

A fund for the erection of such a structure is now available under the thirty- 
eighth clause of the will of the late Maria E. Hatch of Boston, which reads: 

I give, devise and bequeath to said Nathaniel F. Perkins the sum of $300,000, in trust 
nevertheless for the foundation and maintenance of a memorial to be known as the 
"Edward Hatch Memorial," said memorial to be in such form, whether that of a per- 
manent trust, corporation or otherwise, as in the judgment of said trustee or his suc- 
cessor or successors in said trust may best carry out my intent, which is to construct and 
maintain in or near the city of Boston a park, playground or memorial to be open to the 
public at such times and under such regulations as may from time to time best minister 
to the public need for a beauty spot, with authority to erect such buildings, fountains, 
roadways, walks or other works, to set out such trees, shrubs and flowers and to estabhsh 
such maintenance funds, or to make such contracts or arrangements with any public 
authority, as in the judgment of said trustee or his successors in the management of said 
memorial may best carry out the intent of this gift. I give to my said trustee full 
authority to organize said Memorial, to select the first officer or officers to serve with 
him in its management, to prescribe the manner in which successors to said manage- 
ment may be selected, and to make such other provisions as he may deem desirable, 
giving to him the fullest authority in all respects to do any and all such things he may 
deem best suited to carry out with respect to said memorial my wishes which are well 
known to him. 

The original trustee was appointed on November 16, 1926. No action to carry 
out the provisions of the trust was taken, however, until, upon petition of the 
Attorney General, William J. Hickey, Jr., of Brookline, and John Burke, Esquire, 



P.D. 12. 7 

of Boston, the present trustees, were appointed by the Probate Court of Suffolk 
County on December 18, 1935. 

The present trustees are now prepared to negotiate an agreement with the 
MetropoHtan District Commission looking towards the construction and subse- 
quent maintenance of a planetarium for the benefit of the public. 

The manifold advantages to all our citizens from the possession of such a 
structure are so obvious that I do not need to emphasize them. 

While such a building should be freely available to all the people, a nominal 
admission charge might at times be wise to aid in defraying the cost of main- 
tenance. Provision, of course, should be made to enable our youth, in the public, 
parocl'ial and private educational institutions in which metropolitan Boston 
abounds, to attend the lectures in the company of their teachers free from any 
charge of admission. This is the practice in other American cities possessing 
planetaria. In connection with the problem of financial management, it is inter- 
esting to note that the Hayden Planetarium in New York City, upon which 
$25,000 has been spent for maintenance, has received about $250,000 through 
nominal admission fees. In this instance, however, the fees of the lecturers have 
been paid from other sources. 

The site which immediately suggests itself as most appropriate is the Charles 
River Basin. I am informed that the sum of approximately $275,000 remains 
unexpended and unallocated in the so-called Charles River Basin Improvement 
Fund, in the possession and control of the Metropolitan District Commission, 
said fund being established pursuant to the provisions of chapter 371 of the Acts 
of 1929. 

It is estimated that there is in the hands of the aforementioned trustees, Hickey 
and Burke, a sum of $325,000 available for the construction of such planetarium. 
This sum is adequate for the construction of the building above the foundations 
and for the purchase of necessary equipment. Because of the nature of the land 
the cost of the foundation is uncertain. 

I recommend legislation which would authorize the Metropolitan District 
Commission to enter into an agreement with the trustees of the so-called Hatch 
Fund, with such limitations as the Legislature shall deem wise. By such legis- 
lation there should be made available, from the so-called Charles River Basin 
Improvement Fund, a simi not exceeding $100,000 for the laying of the foundations 
and necessary landscape work incidental to the planetarium. 

The Legislature should, with such limitations as it shall deem wise, also author- 
ize said Commission to agree as to the organization of said memorial and to 
prescribe the manner in which successors to said management may be selected. 

Milk. 

For the past two years this Department has devoted considerable study to the 
problems of the Milk Control Board in its efforts to stabihze the market. Its 
task is comparable with that of twenty or more other States. The problem is 
regional and not local, inasmuch as a large part of the milk sold within the State 
is produced in other States, and consequently the subject of interstate commerce. 
Efforts of the Federal govermnent to solve the problem have not met with success. 

On June 25, 1935, I recommended to the Northeastern Dairy Conference that 
they return to their respective State Legislatures and obtain for their Milk Con- 



8 P.D. 12. 

trol Boards the right to negotiate interstate compacts, in accordance with the 
provisions of section 10 of article I of the Constitution of the United States, for 
the orderly and constitutional regulation of this basic industry. 

Since that time I am informed that interstate compacts have been urged by 
the Massachusetts State Grange, the State Farm Biu-eau Federation, and the 
Federated Dairy Association of Massachusetts. At this time I again urge that 
efforts be made to negotiate interstate compacts with the States shipping milk 
into Massachusetts. 

The present law has many deficiencies. Adequate enforcement requires con- 
stant policing of every one engaged in the industry, at great expense. 

I recommend action to simplify its enforcement. I suggest an amendment 
making it a criminal offence for dealers to discriminate in regard to prices to cus- 
tomers, wholesale and retail, with a substantial penalty for violations. I believe 
such a law will go a long way toward solving this problem. It will end for all 
time the practice of alienating customers by offers of price cutting. 

Small Loan Agencies. 

I repeat my recommendation of last year that 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 $300 or less. Small loan agencies advertise to hold themselves out as 
bonded, licensed and under the supervision of the Department 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 
circumstances under which the loan is needed are such that interest charges become 
a secondary consideration, as compared with the emergency 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 super- 
vision of the Department of Banking and Insurance, and may 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 of ready cash, and have thus suppUed 
the opportunity for others to obtain usurious interest charges. The Department 
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 by the loan agency, in accord- 
ance with a method similar to the provisions of G. L. (Ter. Ed.) c. 140, § 97. 



P.D. 12. 9 

Collection and Adjustment Agencies. 

Supplementing my report for the year ending November 30, 1935, Public 
Document No. 12, my Department has investigated 130 additional collection 
agency cases (282 in 1935, now making a total of 412). In 81 per cent of the 
cases investigated by this Department, not only were they illegally engaged in 
the practice of law, but their operations were fraudulent and reprehensible. Com- 
mencing with September, 1935, this Department disposed of 353 collection agency 
and adjustment companies either by court action or voluntarily closing their 
operations in this Commonwealth. There are now but 59 collection agency cases 
awaiting trial or assignment. 

Advertising Accounts for Sale. 

I repeat my recommendation of last year that legislation be enacted to prevent 
the advertising of "accounts for sale" wherein the names and addresses of the 
debtors and the nature and amount of the alleged indebtedness are listed. This 
method by agencies was intended to shame the debtor into paying even an unjust 
obligation, and tends to deprive him of an opportunity to set up a legal defence. 
(See Report of the Attorney General, 1935, p. 16.) 

Elimination of Corporate Practice of Professions. 

The practice of a profession, such as medicine, dentistry, optometry and the 
like, is not a business open to all, but is a personal right limited to persons of 
good moral character, with special qualifications. As these conditions cannot be 
performed by corporations or lay persons, it follows that the practice of profes- 
sions is not one in which a corporation should engage. Various sections of G. L. 
(Ter. Ed.) c. 112, permit corporate practices in some professions. 

I therefore recommend to the General Court that legislation be enacted de- 
signed to curb the increasing encroachment of corporate professional practices. 
It might well be advisable that the General Court appoint a recess commission 
to study the subject of exploitation of professions, with power to recommend 
such proposals as it feels practical in the premises. 

Amendment of Laws relating to Savings Banks. 

I repeat my recommendation of last year that the laws relating to savings 
banks should be amended by providing that no executive or administrative offi- 
cer, or member of the board of investment of such banks, should act as counsel 
therefor. 

The mutual savings banks of Massachusetts are quasi-pubUc 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 mortgage. 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 atten- 
tion of the Department instances of fees so charged, which lend color to a conclu- 
sion that the fees in fact constituted inducements to the officer of the bank. 



10 P.D. 12. 

This is especially true in the instance of mortgages for a large amount, where 
the size of the loan serves as a flimsy defence, but because it does serve as a defence 
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 mortgages which 
are a source of profit to the officer of the institution. 

Public Charitable Trusts. 

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

In my report of last year I set forth that the Department was conducting an 
investigation of gifts left by will for public charitable uses. This investigation 
contemplates an inquiry into all such gifts made since the year 1900. From 
inquiries already made, the Department has discovered several millions of dol- 
lars not being used pursuant to the express desires of the charitable donor. The 
purposes of these gifts were varied. Some bequests were made for historical 
purposes, some for recreational purposes, some to permit education, and others 
for the assistance of aged persons. In every instance wherein it was discovered 
that the funds were not being used pursuant to the desires of the donor, imme- 
diate steps were taken to assure the fulfillment of the intentions of the benefactor. 

There have been several cases in which it has been deemed advisable that new 
trustees be substituted so that the trust might be handled more effectively. Upon 
inquiry, the Department learned that in many cases the beneficiaries of the trust 
never had any knowledge of the gift. This discovery emphasized an obvious 
defect in our system of probate law. 

I again urge, as I did in my annual report for last year, that the law be so 
amended that notice be given to a public charity of the filing of a will wherein 
the bequest of a public charitable trust is provided, in order that such public 
charity may closely supervise the matter in so far as it pertains to its particular 
charitable endeavor. 

Because of the immense detail involved, it will be some time before a complete 
checkup is made and an analysis of types of bequests can be formulated to see 
what, if any, funds might be placed to the use of cities and towns in the Com- 
monwealth for the purpose of relieving them of some of their tax burdens in the 
form of welfare and old age assistance, for which they now find it necessary to 
raise funds through taxation. 

Notice in Probate Proceedings. 

As a result of the current investigation by the Department into the management 
of public charitable trusts, there have been many inquiries coming from citizens 
of the Commonwealth regarding purely private bequests and trusts. The salient 
characteristic of such inquiries is complaint at the failure of the fiduciary to file 
an annual account as provided by G. L. (Ter. Ed.) c. 206, § 1. 

Clearly such complaints are justified. Upon failure of the fiduciary to file his 
annual account, notice should be sent forthwith by the register of probate summon- 
ing the fiduciary to show cause why he should not be adjudged in contempt for 
failure to file his account. 

There are cogent reasons to support such a recommendation. The enactment 
of such a law would (1) compel those appointed fiduciaries to be more careful in the 



I 



P.D. 12. 11 

management of their fiduciary funds; (2) protect the rights of those who are to 
benefit at some later date; (3) afford the Probate Court a check upon the conduct 
of its appointed officers ; and (4) increase the revenue of the probate registries. 

The Division of Collections. 

I am pleased to report that due to the activities of the Division of Collections 
within the Department of the Attorney General there has been collected the sum 
of $206,780.50. This Division was established during the first year of my incum- 
bency as Attorney General. During the year next preceding the establislmient 
of this Division the sum of $46,822.33 was collected by the Department. 

The work of this Division is illustrative of the soundness of the contention that 
true economy often consists in the judicious expenditure of public funds. 

Settlement of Non-Litigated Claims. 

Unless there is actual litigation pending, there is no legal requirement or practice 
established by my predecessors which calls for the approval of the Attorney General 
of settlements of claims against the Commonwealth by any of the several depart- 
ments of the State government. In some instances, claims have been sought to 
be paid wherein there is no liability to pay on the part of the Commonwealth. 

I therefore recommend legislation requiring the approval of the Attorney General 
of all settlements of claims in excess of a certain specified sum, said sum to be 
determined by your honorable body. 

Official Opinions. 

The Department has rendered 148 written opinions. 

An Appreciation. 

In conclusion, I want to pay tribute to the zeal, abilities, acumen and industry 
of my co-workers in the administration of the chief law office of the Common- 
wealth. The several Assistant Attorneys General, the office personnel, and the 
several departments of the State goverrmient have all co-operated in a sincere 
effort to serve the Commonwealth. 

Respectfully submitted, 

PAUL A. DEVER, 

Attorney General. 



12 P.D. 12. 

Details of Capital Cases. 
1. Disposition of indictments pending Nov. 30, 1935: 

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

Hoban). 
Geapeno Mirante, alias. 

Indicted May, 1927, for the murder of Nicola Fustacci, at Worcester, on Feb. 28, - 
1927; arraigned May 11, 1936, and pleaded not guilty; Sept. 2, 1936, retracted 
former plea and pleaded guilty to manslaughter, which plea was accepted; there- 
upon sentenced to State Prison for not more than nine years and not less than eight 
years. 

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; May 27, 1936, rescript "Judgment 
on the verdict" on claim of appeal; thereupon sentenced to death by electrocution, 
which sentence was carried out Aug. 4, 1936. 

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, 1935; 
arraigned April 16, 1935, and pleaded not guilty; Feb. 10, 1936, entry of nolle 
prosequi as to so much of said indictment as charged murder in the first degree; 
trial February, 1936; verdict of guilty of murder in the second degree; thereupon 
sentenced to State Prison for life; April 8, 1936, motion for new trial denied. 

Julio Ventura, Aniello Orlando, James Penta, Angelo Cadero and Angelo DeVito. 

Indicted October, 1934, for the murder of Luigi Girgo, at Wilmington, on Oct. 3, 
1934; Ventura, Orlando, Penta and DeVito arraigned Oct. 11, 1934, and Cadero 
on Sept. 9, 1936, and each pleaded not guilty; trial of Ventura, Orlando, Penta and 
DeVito in January, 1935; verdict of guilty of murder in the second degree as to 
each; thereupon each sentenced to State Prison for life; April 2, 1936, rescript 
"Judgment affirmed" on claim of appeal of each; Nov. 9, 1936, Cadero retracted 
his former plea and pleaded guilty to manslaughter, which was accepted; thereupon 
sentenced to State Prison for not more than fifteen years and not less than ten years. 

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 Tisbury, on Sept. 12, 1935; arraigned Oct. 10, 1935, and entry of a plea 
of not guilty ordered by the court; Dec. 31, 1935, committed to the Bridgewater 
State Hospital as insane. 

Sufiolk 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, which 
sentence was carried out Jan. 14, 1936. 



P.D. 12. 13 

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; trial December, 1935; verdict of 
guilty of murder in the second degree; thereupon sentenced to State Prison for life. 

2. Indictments found and dispositions since Nov. 30, 1935: 

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

L. Bishop). 

Francis J. DowTiing. 

Indicted October, 1936, for the murder of Lillian M. Fowler, at Maiden, on May 3, 
1936; arraigned Oct. 9, 1936, and pleaded not guilty; Nov. 9, 1936, entry of nolle 
prosequi as to so much of said indictment as charged murder in the first or second 
degree; trial November, 1936; verdict of guilty of manslaughter; thereupon sen- 
tenced to State Prison for not more than five years and not less than four years. 

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

Foley). 
Arthur T. O'Hearn. 

Indicted January, 1936, for the murder of Joseph Villiard, on Dec. 4, 1935; arraigned 
April 21, 1936, and pleaded not guilty; May 27, 1936, retracted former plea and 
pleaded guilty to murder in the second degree, which was accepted; thereupon 
sentenced to State Prison for life. 

Anthony Repucci and Edward Guanelli. 

Indicted December, 1935, for the murder of Walter R. Doucette, on Dec. 23, 1935; 
arraigned Jan. 7, 1936, and each pleaded not guilty; trial Januarj', 1936; verdict of 
guilty of murder in the second degree as to each; thereupon each sentenced to State 
Prison for life. 

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

Carmine Parisi, alias. 

Indicted in Berkshire County, January, 1936, for the murder of Rocco Yetz, at Pitts- 
field, on Sept. 13, 1935; arraigned Jan. 21, 1936, and pleaded not guilty; trial 
March, 1936; verdict by direction of the court of not guilty by reason of insanity; 
thereupon committed to Bridgewater State Hospital for life. 

3. Pending indictments and status: 

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

L. Bishop). 

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; April 8, 1936, rescript "Judgment 
on the verdict" on claim of appeal of Frank DiStasio; May, 1936, Anthony DiStasio 
indicted as accessory before the fact to murder in the first degree; arraigned May 
25, 1936, and a plea of not guilty was ordered by the court upon refusal of the 
defendant to plead; trial June, 1936; verdict of guilty of being accessory before 
the fact to murder in the first degree; claim of appeal pending. 



14 P.D. 12. 

Joseph Pisano. 

Indicted September, 1936, for the murder of John Oliver, at Somerville, on Aug. 16, 
1936; committed to Worcester State Hospital. 

John W. Skoog. 

Indicted September, 1936, for the murder of Fritz B. Nelson, at Bedford, on July 27^ 
1936; arraigned Oct. 5, 1936, and pleaded not guilty. 

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

Oscar Bartolini. 

Indicted in Norfolk County, September, 1936, for the murder of Grayce M. Asquith, 
at Weymouth, on Sept. 20, 1936; arraigned Oct. 30, 1936, and pleaded not guilty. 

Sabino Papagno, alias. 

Indicted in Plymouth County, June, 1936, for the murder of Sabino Capachione, at 
Brockton, on May 1, 1936; arraigned June 8, 1936, and pleaded not guilty; Aug. 
31, 1936, committed to Bridgewater State Hospital. 

Southern District (in charge of District Attorney WilUam C. Crossley). 
Sidney S. Reich. 

Indicted in Bristol County, November, 1936, for the murder of Hartley Wood, at 
New Bedford, on Oct. 5, 1936; arraigned Nov. 24, 1936, and pleaded not guilty. 

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

Foley). 
EU Bonda, alias. 

Indicted November, 1936, for the murder of Gregory Krevdick, alias, on Oct. 25, 1936; 
arraigned Nov. 16, 1936, and pleaded not guilty. 

Stephen L. Mabey. 

Indicted March, 1936, for the murder of Mildred L. Bosse, on Jan. 26, 1936; arraigned 
March 17, 1936, and pleaded not guilty. 

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

Indicted in Berkshire County, July, 1936, for the murder of Anna Leahey, at New 
Marlborough, on April 24, 1936; arraigned July 24, 1936, and pleaded not guilty; 
Nov. 14, 1936, committed to Northampton State Hospital for observation. 



P.D. 12. 15 

OPINIONS. 



Teachers' Retirement Association — Exchange Teachers — School Committees. 

The status of an exchange teacher is not recognized by the acts of the 
Legislature as having any relation to the payment of contributions 
to the retirement fund. 

Dec. 2, 1935. 

Dr. Payson Smith, Commissioner of Education. 

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

" Miss A, of Spokane, Washington, was elected by the school committee 
of Somerville to serve as an exchange teacher in the public schools of 
Somerville for the school year 1935-36. 

Miss B, a member of the Teachers' Retirement Association and em- 
ployed in the public schools of Somerville, is being employed for the school 
year 1935-36 in the public schools of Spokane, Washington, filling the 
place of Miss A. 

Miss B's salary in the city of Somerville was at the rate of $1,700 a year. 
Miss A is being paid at that rate by the city of Somerville; but under the 
arrangement made for the exchange of teachers the checks which she re- 
ceives she endorses to Miss B. Similarly, Miss B is being paid by Spokane 
the same salary Miss A was receiving while employed there, and Miss B 
endorses the checks to Miss A. 

Miss A never served in the public schools of Massachusetts prior to her 
service in Somerville, beginning in September, 1935. 

The Retirement Board would like your opinion on the following ques- 
tions: 

1. Is Miss A required to be a member of the Massachusetts Teachers' 
Retirement Association while serving as an exchange teacher, and shall the 
city of Somerville make deductions from the salary listed on the pay roll 
for Miss A, the deductions to be credited by the Retirement Board to the 
account of Miss A? 

2. Can Miss B contribute to the retirement fund regular assessments 
while serving in Spokane, Washington? 

3. If Miss B cannot contribute to the retirement fund while employed in 
Spokane, can a school committee in the case of a future exchange teacher 
so word its vote that the member of the Massachusetts Teachers' Retire- 
ment Association can pay assessments while employed out of this State, 
and if so, how should the vote be worded?" 

The statutes make no provision for the exchange of teachers between 
municipahties in the Commonwealth and those in other States, nor is the 
position or status of "an exchange teacher," as such, recognized by the 
acts of the Legislature. 

I assume from the facts which you have set forth that Miss B has been 
given a leave of absence, necessarily without pay, since she is not now 
teaching in the public schools of Somerville. Whatever arrangements 
have been made with or between Miss A and Miss B as to the endorsement 
or exchange of pay checks is immaterial. Since during the current school 
year Miss B is not in receipt of a salary from the city of Somerville, there 



16 P.D. 12. 

is nothing from which a contribution to the retirement fund on her behalf 
can be deducted or contributed. 

Miss A is now a teacher in the service of the pubHc schools of Somerville 
and, according to your statement, is being paid as such. Like any other 
teacher "entering the service of the pubhc schools" she has become a 
member of the Teachers' Retirement Association under the provisions of 
G. L. (Ter. Ed.) c. 32, § 7 (2), and she should pay into the funds of the 
retirement system, by deduction from her salary, such assessments as are 
determined by your Board under said chapter 32, section 12 (5), and as 
are provided in section 9 (2) of said chapter 32. 

There is no authority vested in a school committee to provide by vote 
that a teacher receiving a salary only from a municipality outside Mas- 
sachusetts may or must contribute to our State Teachers' Retirement 
Fund. If it is desired to institute a plan for the exchange of teachers which 
shall fall within the provisions of the retirement law, resort should be had 
to the General Court for enabling legislation, and, if any injustice has been 
done in the instant matter through the mistaken action of public authori- 
ties, for the rectification of the same by appropriate enactments. 

I think the foregoing expressions of opinion fully answer the questions 
in your letter. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Board of Registration in Medicine — Registered Physicians — Industrial 

Accident Board. 

Dec. 2, 1935. 

Mr. James J. Sughrue, Director, Division of Registration. 

Dear Sir : — You have asked my opinion upon a matter submitted by 
the Board of Registration in Medicine in connection with G. L. (Ter. Ed.) 
c. 152, § 9B. 

I consider that the said Board should treat a request made on it by the 
Industrial Accident Board for a hst of "surgeons, orthopedists and bio- 
logical chemists" as an indication of a desire on the part of the Industrial 
Accident Board that the Board of Registration in Medicine should include 
in the "list of registered physicians" to be furnished in the first instance 
by the last-named board, or in a revised list set up at the request of the 
Industrial Accident Board under said section 9B, physicians who are 
specially skilled in surgery, orthopedics or biological chemistry. While the 
specifications of the Industrial Accident Board in this respect are not man- 
datory (though its request for a revision of an established hst is mandatory), 
such specifications should be acceded to when reasonably possible so as 
to give the Industrial Accident Board, in so far as may be, the kind of 
professional service which it considers most useful to the accomplishment 
of its ends in the interests of justice. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 17 

Fines — Motor Vehicles — Metropolitan District Commission. 

Fines for motor vehicle violations on reservations of the Metropolitan 
District Commission between December 1, 1934, and October 1, 1935, 
were payable to the Treasurer and Receiver General. Subsequent to 
October 1, 1935, such fines are payable to the treasury of a county. 

Dec. 3, 1935. 

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

Dear Sir : — You have asked my opinion in the following language : — 

"Your opinion is respectfully requested as to the disposition between 
December 1, 1934, and October 1, 1935, of fines imposed under authority 
of G. L. (Ter. Ed.) cc. 90 and 92, for violations of the statute respecting 
motor vehicles within the limits of reservations and boulevards subject to 
the control of the Metropolitan District Commission." 

In my opinion, the disposition of the fines to which you refer, between 
the dates which you mention, should properly have been made by pay- 
ment to the Treasurer and Receiver General for the purpose set forth in 
G. L. (Ter. Ed.) c. 92, § 48, as amended by St. 1934, c. 266. 

Prior to the enactment of the said amending statute the provisions of 
said section 48 had required the payment to the Treasurer and Receiver 
General of such fines as you mention, for the purpose of benefiting locali- 
ties under the control of the MetropoHtan District Commission. The 
terms of said section 48 constituted a virtual exception to the provisions 
of G. L. (Ter. Ed.) c. 90, § 34, with relation to the disposition of fines for 
motor vehicle offences. As the Legislature amended said section 48 by 
said chapter 266 it changed the mode in which the moneys coming to the 
Treasurer and Receiver General from such fines should be applied by him, 
but in its essence the purpose of the section remained unaltered, and the 
phrase used in the amending statute, "shall, unless otherwise provided, be 
accounted for and paid to the State Treasurer," was not intended by the 
Legislature to refer to the manner of paying and the use of fines already 
described in said G. L. (Ter. Ed.) c. 90, § 34. The phrase "unless other- 
wise provided" refers only to the effect of acts subsequent to chapter 266 
changing its provisions as to payments to the Treasurer and Receiver 
General and does not relate to provisions of prior acts. Any other con- 
struction would render the object and purpose of the entire section mean- 
ingless. That being so, the provision of said section 48, as amended, for 
the payment of fines to the Treasurer and Receiver General for certain 
designated purposes was not affected by the enactment of St. 1934, c. 364, 
which in its first section amended said section 34 of chapter 90, an act prior 
to said chapter 266, and in its second section struck out the last sentence 
of G. L. (Ter. Ed.) c. 280, § 2, which sentence read: "This section shall 
not apply to fines payable to the State Treasurer under section thirty-four 
of chapter ninety." The fines payable for motor vehicle offences com- 
mitted on reservations or boulevards were never payable under section 
34 of chapter 90, but under section 48 of chapter 92. 

Therefore, during the period which you mention the fines in question 
should have been paid to the Treasurer and Receiver General for the pur- 
poses enumerated in said section 48, as amended, and it was not "other- 
wise provided" within the meaning of the amendment to section 48 by 
St. 1934, c. 266, before October 1, 1935, when an appHcable statute enacted 



18 P.D. 12. 

subsequently went into effect, St. 1935, c. 303, which, by its general and 
sweeping provisions, provided that all fines imposed for motor vehicle 
offences should be paid to the treasury of the county wherein the offence 
was committed. 

Very truly yours, 

Paul A. Devek, Attorney General. 

Industrial Accident Board — Member — Leave of Absence. 

The Industrial Accident Board may, for the benefit of the pubhc service, 
grant a temporary leave of absence without pay to one of its members. 

Dec. 23, 1935. 
Department of Industrial Accidents. 

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

"In your opinion, is it within the authority of the Industrial Accident 
Board to grant to a member of the Board, appointed under G. L. (Ter. 
Ed.) c. 24, § 2, a leave of absence without pay?" 

It is within the general authority of a Board such as yours, if in the exer- 
cise of a sound judgment it determines that it will be beneficial to the pub- 
lic service rather than detrimental thereto, to grant to one of its members 
a temporary leave of absence without pay. The acceptance of such a 
temporary leave will not indicate an intent upon the part of the office- 
holder to abandon his office, and, lacking such an intent, no vacancy 
therein will be worked. When services are not required of an officer for a 
temporary period the fact that he performs no services for that period does 
not constitute an abandonment of his office nor is his action under such 
circumstances a violation of the provision contained in the applicable 
statute that members of the Board "shall devote their whole time in 
business hours to the work of the board." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commonwealth — Liability for Damages — Forest Roads. 

Dec. 27, 1935. 
Hon. Ernest J. Dean, Commissioner of Conservation. 

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

"What liability has the Commonwealth for damages or injuries sus- 
tained on forest roads by the public? 

Ski trails are being constructed in several State forests and I should hke 
your opinion as to whether or not the Commonwealth can be held liable 
for injuries sustained in their use by the public." 

I answer both your questions to the effect that the Commonwealth is 
under no hability to pay damages to persons sustaining injuries while using 
the forest roads and ski trails described in your request. 

Very truly yours, 

Paul A. Dever, Attorney General. 



I 



P.D. 12. 19 

Alcoholic Beverages — Licenses — Transfers — Appeals. 

A licensee who has been refused permission by a local licensing authority 
to transfer his license from one location to another has a right of 
appeal to the Alcoholic Beverages Control Commission, which may 
enforce its decision upon such appeal. 

Dec. 30, 1935. 

Alcoholic Beverages Control Commission. 

Gentlemen: — You have requested my opinion upon the following 
questions of law: — 

"1. Has a person who holds a license under the provisions of either sec- 
tion 12 or 15 of G. L. (Ter. Ed.) c. 138, who applies to a local Hcensing 
authority for permission to transfer the license from one location to another, 
a right of appeal to this Commission if his application is denied by the 
local licensing authority? 

2. Has this Commission authority to order a local licensing authority 
to transfer a license issued under the provisions of either of the said sections 
from one location to another? 

3. Has this Commission authority to transfer a license issued under the 
provisions of either of the said sections from one location to another if a 
local licensing authority fails to comply with an order of this Commission 
to grant such a transfer?" 

I answer your questions in the affirmative. 

G. L. (Ter. Ed.) c. 138, § 23, as amended by St. 1935, c. 440, § 23, con- 
tains the following paragraph : — 

"The licensing authorities may transfer any license granted by them 
from one location to another, but such transfer shall be granted only to 
the holder of such license. All requirements imposed by this chapter 
apphcable in case of the granting of a license thereunder shall apply in case 
of such a transfer, except that no new license fee shall be required." 

Section 67 of said chapter 138, as amended by St. 1935, c. 440, § 42, 
reads, in part : — 

"Any applicant for a license who is aggrieved by the action of the local 
licensing authorities in refusing to grant the same or by their failure to 
act within the period of thirty days hmited by section sixteen B, or any 
person who is aggrieved by the action of such authorities in suspending, 
cancelling, revoking or declaring forfeited the same, may appeal therefrom 
to the commission within five days following notice of such action or follow- 
ing the expiration of said period, and the decision of the commission shall 
be final; but, pending a decision on the appeal, the action of the local 
licensing authorities shall have the same force and effect as if the appeal 
had not been taken." 

Other sections of chapter 138 contain various provisions as to acts which 
must be done and conditions which must exist in order to entitle an appli- 
cant to receive one of the different forms of licenses created by the statute, 
but in every instance in case of the refusal of the desired Hcense by the 
local authorities it may be sought, and in proper cases obtained, by the 
procedure of appeal to your Board. Where there has been an initial refusal 
a favorable decision by your Board upon an appeal may be said to be a 
requirement of the granting of a Hcense. Such a successful appeal will then 



20 P.D. 12. 

be, in an appropriate instance, one of the "requirements imposed by this 
chapter applicable in case of the granting of a license." 

It follows, then, that it was the intent of the Legislature, as expressed in. 
the instant paragraph of said section 23, as amended, that your Board 
should have authority and jurisdiction to entertain an appeal from the 
refusal of local licensing authorities to grant a transfer of a Ucense from 
one location to another. It would be singular if this were not so, for in 
other similar matters included in chapter 138 and in this section itself ihe 
right of appeal to your Board from rulings relative to the important features 
of licensing have been carefully preserved to applicants by general or 
specific provisions. 

Inasmuch as your Commission has the authority to entertain the appeal 
in question, it has the necessary power to enforce its decision in the ways 
set forth in said section 67, as amended, which are referred to lq your second 
and third questions. 

Very truly yours, 

Paul A. Dever, Attorney {general. 

Legislature — Member — Salaries. 

If a member of the Legislature holds another office, he is not entitled to 
receive the salaries pertaining to both. 

Dec. 31, 1935. 

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

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

"Your opinion is respectfully requested upon the following: — 

A certain member of the State Senate is also Director of the Telephone 
and Telegraph Division of the Department of Pubhc Utilities. 

A certain member of the House of Representatives is also Commissioner 
of Conservation. 

Am I authorized to pay to the above, in view of G. L. (Ter. Ed.) c. 30, 
§ 21, salaries and mileage under G. L. (Ter. Ed.) c. 3, § 9, and advances 
on account of compensation due for services and traveling expenses under 
G. L. (Ter. Ed.) c. 29, § 11, for the session of the Legislature for 1936?" 

The Senate and House of Representatives are the sole judges of the 
quahfications of their own members, respectively; and as the persons as 
to whom you inquire are members of one or the other of these legislative 
bodies, they are entitled to be paid the salaries and expenses of their 
offices as such members, if they desire, irrespective of the fact that they 
may hold other official offices. 

It should be added, however, that if such members elect to receive 
salaries as members of the Legislature, while in receipt thereof they are 
not entitled to be paid any salary for the discharge of any other office, 
by reason of the provisions of G. L. (Ter. Ed.) c. 30, § 21. Similarly, if 
they elect to receive the salary pertaining to their offices as director and 
commissioner, respectively, they will not be entitled to be paid salaries 
or advances on compensation as members of the Legislature, though pay- 
ment may be made them for mileage and traveling expenses as such mem- 
bers, under G. L. (Ter. Ed.) c. 29, § 11, and c. 3, § 9. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 21 

Marriage — Non-Resident — Laws of Foreign States. 

A resident of Connecticut about to contract marriage in Massachusetts 
is not required to comply with the provisions of the Connecticut 
statutes relative to filing records of health tests. 

Jan. 13, 1936. 

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

Dear Sir : — In the following communication you have asked my 
opinion relative to marriages of non-residents : — 

"The State of Connecticut has enacted legislation requiring applicants 
for a marriage license, before such application can be accepted, to file a 
statement or statements signed by a licensed physician that each appli- 
cant has submitted to a standard laboratory blood test and that, in the 
opinion of such physician, the person is not infected with syphilis or in a 
stage of that disease that may become communicable, and such statement 
is required to be accompanied by a record of the standard laboratory blood 
test. 

Will you kindly advise me your opinion as to whether, under the provi- 
sions of G. L. (Ter. Ed.) c. 207, § 12, residents of Connecticut filing notice 
of intention of marriage in Massachusetts would be required to file the 
statement required under the laws of Connecticut before the notice of 
intention could be accepted, and if such a statement would be required 
to be filed by a Massachusetts resident, who is the only person required 
to file, when filing notice of intention to marry a resident of Connecticut 
in Massachusetts." 

I am of the opinion that a resident or residents of Connecticut about to 
contract marriage in Massachusetts, either with each other or with citi- 
zens of this Commonwealth, are not required to comply with the provi- 
sions of the Connecticut statutes relative to filing records of favorable 
health tests before marrying or obtaining a license to marry in Massa- 

CIlUSGttS 

G. L. (Ter. Ed.) c. 207, §§ 11 and 12, read: 

"Section 11. No marriage shall be contracted in this Commonwealth 
by a party residing and intending to continue to reside in another juris- 
diction if such marriage would be void if contracted in such other juris- 
diction, and every marriage contracted in this commonwealth in violation 
hereof shall be null and void. 

Section 12. Before issuing a license to marry a person who resides 
and intends to continue to reside in another state, the officer having au- 
thority to issue the license shall satisfy himself, by requiring affidavits 
or otherwise, that such person is not prohibited from intermarrying by 
the laws of the jurisdiction where he or she resides." 

The statute of Connecticut (Supplement to Conn. Gen. Stats., Title 
LV, chapter 276, section 1595C of the year 1935), which provides for filing 
records of a favorable health test before an application for a license to 
marry may be granted, does not in terms prohibit a person who has not 
filed such records from marrying, nor does said statute or other law of 
Connecticut declare that a marriage so contracted shall be void. Since 
this is so, the provisions of said sections 11 and 12 are not applicable, and 



22 P.D. 12. 

there is no requirement of the laws of this Commonwealth which makes 
necessary the making or filing of such records of health tests here or else- 
where as a prerequisite to the obtaining of a marriage license. The terms 
of section 13 of said chapter 207 do not require a construction of sections 
11 and 12 which would make them applicable to the instant situation. 

Very truly yours, 

Paul A. Dever, Attorney General.^ 

Insurance — Standard Fire Policy — Reinsurance. 

The issuance of a rider to a fire insurance policy which will render the 
policy not in compHance with statutory requirements for equality of 
rates of return of unabsorbed premium deposits is not authorized by 
the laws of this Commonwealth. 

Jan. 13, 1936. 

Hon. Francis J. DeCelles, Commissioner of Insurance. 

Dear Sir : — You have requested my opinion as to whether the issu- 
ance of a Massachusetts standard fire policy with a certain rider relating 
to reinsurance attached is authorized by our statutes. 

With relation to the facts in the matter you advise me as follows : — 

'*A group of twenty-three mutual fire insurance companies, composed 
of eight domestic and fifteen foreign companies, all of which are licensed 
to conduct business in Massachusetts, proposes to enter into mutual 
agreements by the terms of which the 'placing company' will issue one 
policy insuring an entire risk and then reinsure with some one or more of 
the companies in the group such proportion thereof as they may care to 
accept respectively. 

Neither the proportion of each risk ceded nor the percentage of partici- 
pation in the cessions nor the number of companies receiving a portion of 
the risk would be the same with reference to all policies. 

In order to accomplish its purpose, the company referred to above as 
the ' placing company ' proposes to attach to its policy a rider substantially 
in the following form : — 

Reinsurance Rider 

'Notice is hereby accepted by the named assured and it (or he) hereby 
agrees that: 

(1) The liability under this policy has been partially reinsured under 
uniform reinsurance contracts, and that the net percentages of risk and 
premium deposit retained by this company and ceded to the reinsuring 
companies are as follows: 

(2) At the termination of this policy, each of said reinsuring companies 
has agreed to pay to the company issuing this policy the unabsorbed por- 
tion of its share of the premium deposit named herein, and upon receipt 
thereof, this company agrees to credit said unabsorbed premium deposit 
together with the unabsorbed portion of its own share of the said premium 
deposit to the account of the assured. It is understood and agreed that 
the return of unabsorbed premium to be made to the assured shall be the 
aggregate of such returns made by said reinsuring companies and by this 
company. 

In witness whereof, this rider has been executed and attached to 
policy no issued by Insurance Company by the 



\ 



P.D. 12. 23 

undersigned on behalf of all the insurance companies named herein, for 
this purpose duly authorized. 

Mutual Fire Insurance Co. 

(Title of officer.) 

Authorized representative of each of the reinsuring companies named 
in said policy.' 

This rider is an agreement between the writing company and the policy- 
holder relating to the reinsurance of a portion of the risk. The names of 
the companies proposing to share in the reinsurance of the risk and the 
proportionate part of the same assumed by each, will be inserted in the 
body of the rider by the 'placing company', which in turn will pay the 
accepting company or companies its or their proportion of the total 
premium deposit in accordance with the proposed agreement. 

The 'placing company' obligates itself to return to its policyholder the 
unused or unabsorbed portion of that part of the premium deposit which 
it retains and also the unabsorbed proportion of the premium deposit 
which is returned by each of the reinsuring companies at the termination 
of the policy. 

The aggregate return of the unabsorbed premium deposit of the ' placing 
company' and the reinsuring companies will represent the dividend pay- 
able to the policyholder upon termination of its policy. 

The proportion between the premium deposit and the unabsorbed 
premium deposit which is to be returned to the policyholder may not be 
the same for all the companies which share in the insurance of the risk." 

Any fire insurance company may reinsure its risks, but under ordinary 
circumstances the assured is not a party to the contracts of reinsurance. 
II Op. Atty. Gen. 157. When reinsurance is effected by the "placing 
company" which issues its pohcy to the assured, it is responsible to him 
for the repayment of that portion of the premium deposit which it has not 
itself absorbed. Accordingly, if the reinsuring companies, or any of them, 
return to the placing company a smaller proportion of that part of the 
premium deposit paid to them by such placing company when they 
issued reinsurance pohcies to it than the proportion of the total deposit 
which the placing company must repay to the assured, the loss will fall 
upon the placing company. The effect of the rider in question is to trans- 
fer such loss, if and when it occurs, to the assured, who agrees to accept 
"the aggregate return of unabsorbed premium deposit" of all the com- 
panies in place of the unabsorbed premium deposit figured upon the pro- 
portion between all of such deposit and the unabsorbed part thereof as 
shown by the books of the placing company alone. Inasmuch as you 
state that the proportion to be returned may not be the same as to all 
the companies sharing in the risk, the assured will lose by this system if 
some of the reinsuring companies return a smaller proportion than does 
the original insurer or placing company. 

Assureds whose risks are properly "in the same classification" and 
whose policies are issued by the same "placing company" will not have 
"an equal rate of . . . return of premium" if the reinsuring companies 
named in the various riders given to the different assureds do not all have 
an equal rate of return premium, for if they differ among themselves as 
to the proportion between premium deposit and unabsorbed premium 
deposit (and you state as a fact that this may be so), inevitably under 



24 P.D. 12. 

such circumstances the express provision of the statute, G. L. (Ter. Ed.) 
c. 175, § 80, that "PoHcies insuring risks in this commonwealth in the same 
classification shall have an equal rate of dividend or return of premium," 
will be violated. 

Riders varying or modifying the terms of the standard fire poHcy may 
be employed in many instances, but they may not be used to create a 
contract which is contrary to the express provisions of an existing statu- 
tory law with relation to the character of policies which may be issued. 
V Op. Atty. Gen. 702. 

It is immaterial that by the use of other methods of writing fire insur- 
ance the burden of possible loss with relation to return of unabsorbed 
premium deposits may be deflected from any member or members of a 
group of interrelated mutual fire insurance companies to an assured 
(whether by the issuance of a number of separate policies of different 
companies or by co-insurance through a policy written under G. L. [Ter, 
Ed.] c. 175, § 102A, with the approval of the Commissioner). The pro- 
posed practice of issuing a policy with the instant rider attached, in so 
far as it may result, through the various circumstances set forth in your 
communication, in faihng to comply with the aforesaid statutory require- 
ments for equality of rates of return of unabsorbed premium deposits 
upon fire policies insuring risks in the same classification, is not authorized 
by our laws. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Applicant — Disabled Veteran. 

A disabled veteran should be permitted to submit the requisite proofs of 
disability at any time at or after application or examination. 

Jan. 13, 1936. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have advised me that an applicant for a position 
in the classified civil service filed an application on May 16, 1935, and in 
his application stated, under the penalties of perjury, as follows: — 

"In answer to question 10 (d), 'Are you receiving compensation or 
pension due to a disability incurred in line of duty in time of war or insur- 
rection?' 'No'; in answer to question 10 (e), 'Are you a disabled veteran?' 
'No'; and in answer to question 11, 'Have you any defect of sight, hear- 
ing, or speech, or any mental or physical disability, incapacity or infirmity? 
If so state fully (any disease, ailment or injury must be stated)' 'No'." 

You further inform me that such applicant is recorded as a veteran 
under G. L. (Ter. Ed.) c. 31, § 21, by your office, and that he passed the 
examination and his name was placed on the eligible list. You also advise 
me that such applicant now claims preference as a disabled veteran under 
G. L. (Ter. Ed.) c. 31, § 23, and you inform me that the apphcant now 
states that at the time he filed his application, that is, on May 16, 1935, 
"he was not disabled." You also say that the records of the Veterans' 
Bureau show that he has an existing disability of chronic bronchitis, rated 
as having been incurred during war service, and believed to be of a con- 
tinuing nature, and that he is receiving compensation from the Federal 
government because of such disability. 






P.D. 12. 25 

With regard to preferences of disabled veterans, it is provided in the 
civil service law (G. L. [Ter. Ed.] c. 31, § 23) that "the names of veterans 
who pass examinations . . . shall be placed upon the eligible lists . . . 
except that any such veterans who are disabled" and who present a cer- 
tain prescribed certificate and various proofs shall be placed at the head of 
all other veterans on such eligible lists. "A disabled veteran shall be 
appointed and employed in preference to all other persons, including 
veterans." 

It has been held by our Supreme Judicial Court in a very recent case 
that a veteran, in order to be entitled to preference on account of disability, 
must present to the Commissioner all the necessary proofs mentioned in 
the statute without omission, and that if he fails to furnish all the proofs 
required by the statute he is not entitled to the preference provided for 
disabled veterans. Sheehan v. Hurley, Mass. Adv. Sh. (1936), p. 27; 
January 2, 1936. 

I assume, although you do not state it in your letter, that all the various 
proofs required by said section 23 have now been presented to the Com- 
missioner in some form by the disabled veteran, since the original appli- 
cation was filed. Otherwise, of course, he would have no possible standing 
for a place upon the eligible lists on account of such disability. McCabe v. 
Judge of the District Court, 277 Mass. 55, 59. 

The last sentence of said section 23 seems to show such a manifest in- 
tent upon the part of the General Court to provide for the mandatory 
appointment and employment of disabled veterans ahead of all other ap- 
pUcants for positions that I am of the opinion, as I have previously stated 
in an opinion to a former Commissioner of Civil Service, dated April 29, 
1935 (Attorney General's Report, 1935, p. 57), that the Commission 
should permit a veteran to submit the requisite proofs of disability at any 
time at or after application or examination, and if they are of the requisite 
character and you are satisfied by them that he is a disabled veteran with 
a continuing disability, within the meaning of the terms of said section 23, 
you should then place him upon an eligible list in the preferential position 
indicated by said section 23 and should endeavor to see that he is appointed 
and employed in preference to all other persons, including veterans. Such 
action would seem to be in harmony with the terms of the opinion in said 
McCahe v. Judge of the District Court, supra. 

The statements which you say the applicant made upon his examination 
are not necessarily inconsistent with the truth as he understood it at the 
time of making such answers, in view of the other facts of which you ad- 
vise me in your letter. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Contracts — Bids — Hours of Work. 

Jan. 13, 1936. 

Mr. W. H. Doyle, 'Director of Personnel and Standardization. \ 

Dear Sir: — You request an opinion as to whether, under G. L. (Ter. 
Ed.) c. 5, § 1, as amended by St. 1932, c. 254, the Commission on Adminis- 
tration and Finance "must reject bids of bidders whose plants are oper- 
ated on a forty-eight-hour week basis even though they certify that the 
bids are based on a forty-four-hour week, and that the work will be done 
on that basis." 



26 P.D. 12. 

I am of the opinion that the said Commission is not required to reject 
bids of bidders whose plants are operated on a forty-eight-hour week basis, 
merely because it is aware of that as a fact concerning the operation of 
such plants. If the bids are themselves based on a forty-four-hour week 
at the prevailing rate of wages, the provision in the statute is satisfied. 
The bid upon a single job may be upon the basis of a forty-four-hour week 
and yet the plant in its entirety may be operated on another system. I 
gather that you require statements under the penalties of perjury that the 
bid is based on a forty-four-hour week, as required by the provisions of 
the aforesaid statutes, and unless you have information which convinces 
you that the bid is in fact based on some other hourly basis than that set 
forth in the certificate, it is not mandatory upon you to reject it. 

Of course, you have the greatest latitude in the exercise of the powers of 
disci'etion under these statutes. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Transfer of Employees — Seniority. 

The date of transfer of an employee to a particular department is to be 
treated as his seniority date with relation to suspension and re- 
employment. 

Jan. 14, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You have asked my opinion in the following language : — 

"Under St. 1935, c. 408, if an employee is transferred to the same class 
of work in another department does he hold his original date of seniority, 
or should he be given the date of transfer as a new seniority date?" 

I answer your question to the effect that the date of transfer of an 
employee under the classified service to a particular department is to be 
treated as his seniority date with relation to suspension and re-employ- 
ment. 

G. L. (Ter. Ed.) c. 31, § 46G, which was added by St. 1935, c. 408, 
contains in substance, in the form of a statute, the provisions of a previ- 
ously existing rule of your Commission, making it applicable to the entire 
classified service instead of being limited to the labor division of such 
service, as your rule was. This rule appeared in the latest compilation of 
your rules as Rule 38, section 3. It formerly appeared in earlier editions 
as Rule 40, and as Rule 40 it is commented upon by the Supreme Judicial 
Court in Tremblay v. Mayor of Fall River, 263 Mass. 118, 120. In view 
of this decision of the Supreme Judicial Court interpreting the intent and 
meaning of your rule in the light of the general purposes for which the 
whole civil service law was intended, it would seem that this legislative 
enactment should be interpreted in the same manner. This being so, it 
is apparent that the intent of the Legislature in enacting section 46G was 
that it should apply in its workings to each particular department, divi- 
sion or classification of the whole "classified service" severally, so that 
in instances such as you refer to in your question seniority is to be deter- 
mined by length of employment in the particular department where the 
employee is working at the time when the matter of suspension or re- 
employment in such department arises. 



P.D. 12. 27 

The objections to an interpretation of the intent of the Legislature 
which would permit seniority of service in one branch of the classified 
service to govern seniority from the point of view of workers in another 
and totall}^ different department to which an employee was transferred, 
are obvious. 

The language of the Supreme Judicial Court in Tremblay v. Mayor of 
Fall River, supra, is emphatic and controlling, and applies with even 
more force to a statute affecting the classified service as a whole than to a 
mere branch, such as the labor service. In that opinion the court said 
that the rule regarding seniority in service — 

"applies to each particular classification and not to the labor service as 
a whole. Employees in one class are not seniors over those of another class 
when all are employed in the labor service. Each division is in a class by 
itself, and seniority in one division cannot displace the seniority rights of 
an older employee in a particular class." 

The court then went on to say that to give seniority rights in a particular 
class of laborers to employees who had seniority of appointment and 
employment in another class would bring about uncertainty. 

"No employee would be sure of his rights under the law. Confusion 
would result. The public service, in our opinion, would be injured, and 
the abuses which the civil service law was intended to correct would be 
restored." 

As I have said, these statements of Mr. Justice Carroll in the opinion 
in Tremblay v. Mayor of Fall River, supra, apply with as equal force to a 
construction of the instant statute applicable to the entire classified 
service as they do to the narrower but similar conditions of that branch 
of the service known as the labor service. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Prisoners — Attempt to escape — Penalties. 

Jan. 20, 1936. 
Joint Committee on the Judiciary. 

Gentlemen: — In answer to your request relative to House Bill No. 
104, entitled "An Act providing penalties against inmates of institutions 
of correction who have been committed thereto for felonies and who at- 
tempt to escape or aid in such attempt," I submit the following: — 

The bill, as drafted, relates to attempts to escape and to aiding in and 
instigating such attempts. It does not cover the substantive offence of 
escape. 

The bill in express terms makes provision for the loss of "all parole 
privileges as provided by law." 

Further, the bill makes provision for punishments to be imposed by 
the courts upon conviction of "attempt to escape" or for aiding others 
"in an attempt to escape." These are matters already covered by exist- 
ing statutory law. The effect of the bill, if enacted in its present language, 
might be to decrease rather than increase penalties in some instances. It 
might well happen that on occasion it might decrease the punishment in a 
grievous case where the consensus of opinion would call for severer pun- 
ishment. 



28 P.D. 12. 

The existing offences relating to escape and attempted escape from 
penal institutions are dealt with in G. L. (Ter. Ed.) c. 268, §§ 15-21, in- 
clusive. These sections concern the subject matters of aiding escape from 
prison, rescuing prisoner, escapes or attempted escapes from penal institu- 
tions, aiding escape from an officer, officer suffering escape, suffering or 
consenting to escape from penal institutions, negUgently suffering escape, 
refusing to receive prisoner, and leaving prisoner at large. The penalties 
provided for these several offences vary from a maximum of not more than 
ten years in State Prison to a minimum of a fine of not more than $500, 
with the exception of the offence covered by G. L. (Ter. Ed.) c. 268, § 19, 
which provides that an officer or other person employed in any penal in- 
stitution who voluntarily suffers a person to escape or consents to such 
escape may be punished by imprisonment in the State Prison for a maxi- 
mum of not more than twenty years. See also St. 1934, c. 344. 

The provisions of the last paragraph in House Bill No. 104 contain in 
lines 13-16 the following: — 

"If in an attempt to escape any person is killed, all persons instigating 
and taking part in the attempt to escape shall be guilty of murder in the 
first degree and shall be punished by death." 

These words, if enacted into law, would create an offence of first degree 
murder most drastic in its scope. Anyone, however remotely connected 
with the hatching of the plot in an "attempt to escape," where "any per- 
son" was killed, would come within the sweep of the proposed statutory 
language and would be liable to indictment, conviction and the death 
penalty. 

Under the law of Massachusetts, murder committed (1) with deliber- 
ately premeditated malice aforethought, or (2) with extreme atrocity or 
cruelty, or (3) in the commission or attempted commission of a crime pun- 
ishable with death or imprisonment for life, is murder in the first degree. 
Murder which does not appear to be in the first degree is murder in the 
second degree. G. L. (Ter. Ed.) c. 265, § 1. 

It is to be noted that this statute, dividing murder into degrees and 
affixing penalties therefor, defines three classes of murder as being murder 
in the first degree and punishable by death. Any unlawful killing with 
malice aforethought, not coming within the three classifications, is murder 
in the second degree. 

In (2) and (3) it is not essential to establish deHberate premeditation. 

The purpose of the foregoing section (G. L. [Ter. Ed.] c. 265, § 1) is to 
define the degrees of murder and to affix penalties for the respective degrees. 
There were no degrees as to murder at common law, and the crime was 
first divided into degrees in this Commonwealth in 1858. The effect of 
this statute was to abolish capital punishment for murder except as to such 
classes of murder as are set out in (1), (2) and (3). 

The penalty for murder in the first degree is death, and the penalty for 
murder in the second degree is imprisonment for life. The definition of 
murder remains the same as at common law. 

Under the law of Massachusetts relating to murder in either of its de- 
grees, in order to convict it must be established that the person convicted 
was a principal in the commission of the crime, either as a principal in the 
first degree or as a principal in the second degree. A principal in the first 
degree is the physical perpetrator of the crime. He may also be the con- 
structive perpetrator of the crime where the principal in the first degree, 
absent from the scene, acts through the medium of an innocent human 



P.D. 12. 29 

agent or an inanimate innocent agent. The principal in the second degree 
is one who is present with guilty intent and knowledge, express or implied, 
as a principal at the commission of the crime, aiding, abetting and en- 
couraging his confederates by his presence, ready to assist them but doing 
no physical act toward the consummation of the death of the victim. 
Principals in the first degree and principals in the second degree are pun- 
ishable alike in Massachusetts. 

The accessory before the fact to murder, in Massachusetts, is punish- 
able by the same penalty as the principal felon. In a recent case (Com- 
monwealth V. Desatnick, 262 Mass. 408) the defendant was convicted as 
an accessory before the fact to murder and was executed. 

In two recent Massachusetts cases involving an attempted escape and 
an escape from a penal institution, where prison officers were killed, the 
defendant in each case was tried for murder in the first degree, convicted 
and executed. The first case was that of Commonwealth v. Trip-pi (Su- 
perior Court, Suffolk District), where the defendant, in attempting to 
escape, murdered an officer at the State Prison. The second case was 
the case of Conmionwealth v. Kaminski (Superior Court, Western District), 
where the defendant escaped from a penal institution in Springfield and 
killed an officer in making the escape. 

The common law, except as affected by the statute herein cited (G. L. 
[Ter. Ed.] c. 265, § 1), with reference to the crime of murder, is still in 
force in Massachusetts. Its principles are of broad and inclusive sweep, 
capable of reaching many diverse and complex states of fact in the unlaw- 
ful killing of human beings. 

Yours respectfully, 

Paul A. Dever, Attorney General, 

Milk Control Board — Authority over Intrastate Milk and Foreign Milky 

respectively. 

Jan. 20, 1936. 

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

Dear Sir : — I submit herewith my answer to the questions asked by 
you regarding the interpretation of St. 1934, c. 376, §§6 and 15, in so far 
as such sections apply to the matters about which you inquire. 

The first question is : — 

"Does the authority conferred on the Board, under section 6, to con- 
trol unreasonable and burdensome surpluses of milk in any market, 
under the provisions of section 15 provide that the Board may so word 
its official orders as to provide for equalization of payment to producers 
in an autonomous market supplied by milk from entirely intrastate 
sources?" 

The pertinent parts of section 6 which apply to the question are parts 
(1), (2) and (4). The section confers upon the Milk Control Board broad 
powers to be used in the regulation of the milk industry. The Board, 
having the power to regulate, is empowered to do that which it finds 
necessary, after due examination and investigation, to be for the benefit 
of the industry as a whole, in so far as the regulation is confined to milk 
produced and sold within the State, which milk is not mingled with milk 
produced outside of the State. The powers enumerated in section 15 
do not curtail this general power of regulation. 



30 P.D. 12. 

The second question is as follows : — 

"May the Board provide, in the case of markets not entirely supplied 
by milk from intrastate sources, (a) an order providing for equalization 
of payment to Massachusetts producers for that portion of the milk 
which is purely from intrastate sources, or (6) may the Board by its 
order provide for equalization of payments to producers in combination 
with milk coming from without the State?" 

The intermingling of milk produced in this State with milk produced 
out of the State creates a situation whereby two authorities conflict, the 
Federal authority and the State authority. The Board has no power to 
regulate or control milk produced outside of the State, in so far as the 
so-called equalization plan is involved. This plan assumes the distribu- 
tion of private property, and, whatever the rights of the State are over 
the private property of its own citizens, it has no rights, such as are here 
involved, over the private property of citizens of another State. My 
answer to this question is in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Veterans' Preference — Time of War. 

Jan. 20, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You have in a recent communication advised me of the 
following facts : — 

"Mr. S is an applicant for the labor service in the city of Chelsea. He 
has submitted records from the Navy Department showing that he en- 
rolled in the naval reserve force September 4, 1917, at Boston, as a mess 
attendant, second class, and was given an undesirable discharge Decem- 
ber 19, 1917, because of repeated offences. The record also shows that 
Mr. S re-enlisted in the navy October 8, 1920, and served until July 25, 
1923, when he was discharged under honorable conditions, this on request." 

You have also informed me as to the practice of your department in 
similar cases, as follows : — 

"The practice of this department has been to refuse veterans' prefer- 
ence to persons receiving a dishonorable discharge for service in the 
army, navy or marine corps of the United States in time of war or insur- 
rection even though they receive a subsequent honorable discharge which 
was for service not in time of war or insurrection. However, if an appli- 
cant receives a dishonorable discharge for service in the army, navy or 
marine corps of the United States in time of war or insurrection and sub- 
sequently re-enlists and receives an honorable discharge for service in the 
army, navy or marine corps in time of war or insurrection, he is credited 
as a veteran." 

I am of the opinion that your departmental practice, as appUed to the 
instant case, is correct. 

The word "veteran" is defined in the applicable part of G. L. (Ter. 
Ed.) c. 31, § 21, as amended, thus: — 

"The word 'veteran', as used in this chapter, shall mean (1) any per- 
son who has served in the army, navy or marine corps of the United 



P.D. 12. 31 

States in time of war or insurrection and whose last discharge or release 
from active duty therein was an honorable one, regardless of any prior 
discharge or release therefrom, ..." 

Before the amendment of said section 21 by St. 1932, c. 89, the appli- 
cable part read : — 

"The word 'veteran' as used in this chapter shall mean any person 
who has served in the army, na\^ or marine corps of the United States 
in time of war or insurrection and has been honorably discharged from 
such service or released from active duty therein, ..." 

It is apparent that by the amendment of St. 1932, c. 89, it was the 
intent of the Legislature to give to a person who had actually served in 
the army, navy or marine corps in time of war or insurrection, and who 
had, unfortunately, left the service without an "honorable" discharge, 
a second chance, as it were, to redeem himself and so bring himself within 
the meaning of "veteran" with relation to preference in civil service. 
But I am of the opinion that it was the intent of the Legislature in enact- 
ing this provision that the second period of service of such person from 
which an honorable discharge resulted should likewise have been a service 
in "time of war or insurrection" and not in wholly peace-time service. 
It appears from the facts which you have set forth in your communication 
that the second enlistment of the present applicant was not until after 
the "time of war/' to wit, on October 8, 1920, so that the whole of his 
second period of service which resulted in an honorable discharge was 
in peace time. 

It is settled that the "time of war," as the expression is used in the 
instant statute, having reference as it does to the World War, ended on 
November 11, 1918. Scott v. Commissioner of Civil Service, 272 Mass. 
237. "Time of insurrection" has no application to the present matter. 
It has been said by the Supreme Judicial Court in Scott v. Commissioner 
of Civil Service, 272 Mass. 237, 240, that the instant statute, as it stood 
prior to 1932, gives a preference based upon service rendered in time of 
actual war; and in view of that statement the only reasonable interpre- 
tation of its amended form, as applicable to the instant case, is that a 
second term of service as well as a first must have been served, at least 
in part, in time of actual war if the last discharge, being honorable in 
character, is to give to a person receiving the same the status of a 
"veteran" under the applicable portion of G. L. (Ter. Ed.) c. 31, § 21, 
as amended. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Teachers' Oath — Aliens — Teachers — Private School — Employees. 

Jan. 23, 1936. 
Hon. James G. Reardon, Commissioner of Education. 

Dear Sir : — You have asked my opinion in regard to the status, under 
the teachers' oath law, of three persons employed by the Eaglebrook 
School in Deerfield, Massachusetts, as set forth in a communication re- 
ceived by you from the headmaster. 

St. 1935, c. 370, confines the mandatory oath to "every citizen of the 
United States," thus excluding from its scope any alien, as represented by 
the first case of the Canadian citizen. 



32 P.D. 12. 

In the second case, the clergyman in question is teaching in a private 
school. He therefore falls specifically within the express wording of the 
statute and must submit to the oath. 

Assuming, in the third case, as the communication implies, that the 
printer in question neither teaches nor instructs the students in his trade 
but merely supervises the setting of type and the running of presses, he 
is not a teacher but merely a school employee, and as such does not come 
within the provisions of this statute. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Electricians — Master Electricians — Journeymen. 

Jan. 27, 1936. 
State Examiners of Electricians. 

Gentlemen : — You have asked my opinion upon the following ques- 
tions : — 

"1. Is a person, firm or corporation, not a holder of a Class A license, 
whose principal business is other than the electrical business but whose 
business in part requires the installation of some electrical equipment, 
complying with G. L. (Ter. Ed.) c. 141, in permanently employing a master 
electrician and hiring journejrmen to do the work under the supervision 
of the master on premises other than their own, the person, firm or corpo- 
ration paying all wages for both master and journeymen? 

2. If a bank forecloses on a building of any sort and puts the premises 
in the hands of a real estate dealer to act as agent for the renting and up- 
keep of those premises, is that real estate agent within his rights under 
said chapter 141 to employ licensed journeymen to do the electrical work 
on the premises?" 

I answer both your questions in the affirmative. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Boards of Health — Bottling of Spring Water — Permits. 

Jan. 27, 1936. 



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

Dear Sir : — You have advised me in a recent communication that a 
local board of health contemplates revoking a permit issued to one en- 
gaged in the business of manufacturing or bottling non-alcoholic bever- 
ages under the provisions of G. L. (Ter. Ed.) c. 94, § lOB, as amended by 
St. 1935, c. 441, and you inquire whether, if this is done, the old permit 
might be reissued by such local board at a later date without the payment 
of the fee prescribed by the statute, payment having already been made 
upon the present outstanding permit. 

I answer your inquiry to the effect that if the present permit is revoked 
no reissuance thereof may be made, nor may a new permit be granted 
later without the payment of the twenty-dollar fee provided by said sec- 
tion lOB. 

You state in your communication : — | 



I 



P.D. 12. 33 

"The regulations of the department require that no such permit shall 
be granted for spring water unless the approval of this department has 
been obtained." 

If your department had authority to make such a regulation and in 
this present matter your approval had not been obtained, the permit 
which you say is now outstanding might well be considered as of no va- 
lidity. I am of the opinion, however, that the authority given by section 
lOE of said chapter 94 to your department, to make "rules and regulations 
to carry out the four preceding sections," does not empower you to limit 
the authority vested in local boards of health by the Legislature itself 
in section lOB of said chapter 94, to "grant permits to engage ... in 
the business," by requiring that the approval of your department shall be 
a prerequisite to the issuance of a permit by a local board. See Common- 
wealth V. Staples, 191 Mass. 384; McPherson v. Street Commissioners, 
251 Mass. 34. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Elections — Nomination Papers — Designation of Candidates. 

Jan. 30, 1936. 

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

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

"Prior to the biennial State election in 1934, a nomination paper in the 
name of Frank A. Goodwin as candidate for Governor, under the political 
designation 'Equal Tax,' was filed in the office of the Secretary of the 
Commonwealth. The nomination being in proper form, the name of said 
Goodwin appeared upon the ballot at the election held November 6th, 
with said designation 'Equal Tax.' The total number of votes received 
by him was 94,141, more than three per cent of the entire vote cast in the 
Commonwealth for that office. This was the only nomination filed under 
said designation 'Equal Tax.' 

No papers relative to any organization and no returns of election ex- 
penses have been filed in this office under the name of any organization 
such as 'Equal Tax.' There is nothing in the records of this office to in- 
dicate that this nomination had any connection with any existing party. 

G. L. (Ter. Ed.) c. 50, § 1, under the title 'Definitions' states: '"Politi- 
cal Party" shall apply to a party which at the preceding biennial state 
election polled for governor at least three per cent of the entire vote cast 
in the commonwealth for that office . . .' 

I shall appreciate receiving your opinion as to whether the 'Equal Tax' 
is now a political party. . . ." 

I am of the opinion, upon the facts as you have set them forth, that the 
"Equal Tax" to which you refer is not a "political party," as those words 
are defined in G. L. (Ter. Ed.) c. 50, § 1. 

G. L. (Ter. Ed.) c. 53, § 8, provides, in its applicable parts: — 

"All certificates of nomination and nomination papers shall, in addition 
to the names of the candidates, specify as to each, (1) his residence, with 
street and number, if any, (2) the office for which he is nominated, and 



34 P.D. 12. 

(3), except as otherwise provided in this section . . . the party or poHtical 
principle which he represents, expressed in not more than three words. . . 

Where, as in the instant case, the designation of a candidate appears 
upon nomination papers without any word specifying any party but merely 
with words apparently descriptive of a "political principle" only, it cannot 
be said, from an inspection of such nomination papers, that such candi- 
date represented a "party," but rather it would seem that he represented 
a "political principle." If, in addition to such facts, it also appears, a"s it 
does in the instant case, from your letter, that no papers relative to any 
organization and no returns of election expenses have been filed in your 
office under the name of any organization corresponding to the words of 
designation used in the nomination papers in respect to such candidate, 
and that there are no records in your office to indicate that the nomina- 
tion had any connection with any existing party, and that the nomination 
in question was the only one made with a similar designation, it is ob\ious 
that the candidate so nominated represented a "political principle" and 
not a "party." 

This being so, the definition of a "political party," contained in G. L. 
(Ter. Ed.) c. 50, § 1, which "shall apply to a party" that polled a certain 
per cent of all the votes cast at a prior State election, has no application 
to the instant matter, for there was here, as has been stated, no "party" 
which polled votes at the last election, although votes were cast for the 
specified nominee who as a candidate for Governor represented not a 
party but a "pohtical principle" (as those two words are used in said 
G. L. [Ter. Ed.] c. 50, § 1), which was called "Equal Tax." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Power of Removal — Application of Laws to Employees — 

Removable at Pleasure. 

Jan. 31, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — In answer to a recent communication from you, let me 
say that the ruling made by your department, to the effect that persona 
appointed and employed by the Salem and Beverly Water Supply Board 
under St. 1913, c. 700, are not in the classified civil service, is correct. 

Under the terms of section 2 of said chapter 700, with relation to em- 
ployees appointed by said water supply board, the latter "may remove 
them at pleasure." Specific statutory authority vested in a board to so 
remove employees indicates an intent upon the part of the Legislature 
that such employees shall not be subject to the civil service laws as set 
forth in G. L. (Ter. Ed.) c. 31, as amended. Authority to "remove at 
pleasure" is irreconcilable with the provisions of said chapter 31, concern- 
ing removals of those in the public service. Attorney General's report, 
1932, p. 46; VIII Op. Atty. Gen., 643; VII ibid. 719, 720; VI ibid. 155; 
334, 335. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 35 

Registration in Medicine — Applicants — Qualifications. 

The Board of Registration in Medicine is not permitted to accept any 
equivalent for the period of study divided over a certain number of 
years, as prescribed in G. L. (Ter. Ed.) c. 112, § 2, as amended. 

Feb. 7, 1936. 
Board of Registration in Medicine. 

Gentlemen: — You have in effect asked my opinion as to whether the 
provision of G. L. (Ter. Ed.) c. 112, § 2, as last amended by St. 1933, 
c. 171, § 1, which prescribes that an applicant for registration in medicine 
shall furnish the Board of Registration with satisfactory proof that, 
among other things, "he has attended four years of instruction of not less 
than thirty-two school weeks in each year in one or more legally chartered 
medical schools," is to be applied Hterally, or whether you may accept, 
in lieu of such requirement, proof that the registrant has attended more 
than four years of instruction, each of a less number of weeks than thirty- 
two but aggregating a total of more than one hundred and twenty-eight. 

I am of the opinion that you may not accept, as tending to qualify a 
person for registration, the latter form of proof mentioned above. 

The Legislature has set the qualifications as to the required time of 
study with exactness both as to its total length and as to the minimum 
number of hours of study per week during each year of such required 
time. 

Prior to the amendment of 1933 the statutory requirement in this respect 
was: "that he has received the degree of doctor of medicine, or its equiva- 
lent, either from a legally chartered medical school having the power to 
confer degrees in medicine, which gives a full four years' course of instruc- 
tion of not less than thirty-six weeks in each year, ..." 

The older form directed its requirement to the course given by a medi- 
cal school. The newer form directs its requirement to the work of the 
student. 

The newer form was apparently drawn with care, as it makes the change 
plain in the above-noted respects, reduces the study hours from thirty- 
six to thirty-two weeks per year, and permits the course to be taken in 
more than one school. Yet in making the newer form the Legislature has 
still described the necessary course of study as one of "four years," each 
of a definite number of weeks. The intent of the Legislature as expressed 
in the present amended section seems to be to require a definite period of 
study, described with exactness both as to its years and as to the hours 
of study to be performed in each year. It may be that the Legislature 
considered a four years' course with a definite amount of study per year 
a better form of education than a course spread over a greater number of 
years with less concentrated study in each year. Such a viewpoint could 
not be pronounced absurd or unreasonable. 

You are not permitted by the statute to accept any "equivalent" for 
the period of study divided with exactness over a certain number of years 
and prescribed by the Legislature. 

Very truly yours, 

Paul A. Dever, Attorney General. 



36 P.D. 12. 

School Committee — Superintendent of Schools — Choice and Assignment of 

Teachers. 

Feb. 10, 1936. 
Hon. James G. Reardon, Commissioner of Education. 

Dear Sir : — You have asked my opinion upon several questions of 
law relative to the election of a school principal by a town school commit- 
tee. The subject matter of your inquiry does not appear to relate to any 
official action which you may be required to take but solely to matters 
relative to the public schools of a town. The Attorney General has no 
authority to advise town officials directly or indirectly as to the per- 
formance of their duties nor to pass upon the proceedings of school 
committees. 

For your guidance, however, let me say in a general way that the fail- 
ure of a superintendent of schools to perform his duty under G. L. (Ter. 
Ed.) c. 71, § 59, to "recommend to the [school] committee teachers . . . ," 
does not limit the authority vested in the school committee under G. L, 
(Ter. Ed.) c. 71, § 38, to "elect and contract with the teachers of the 
public schools." Nor does his failure to make such recommendation 
render void a vote of a school committee electing a teacher in its service 
to be principal of one of its schools. The wording of said section 59 is not 
like that employed in section 42 of said chapter 71 with relation to the 
recommendation of a superintendent to a school committee concerning 
the discharge of a teacher, which by its terms makes said recommendation 
an essential though not a controlling preliminary to such a discharge. 
Duffey V. Hopkinton, 236 Mass. 5; Sheldon v. Hopedale, 276 Mass. 230. 

The word "teacher" as generally used in said chapter 71 comprehends 
teacher and principal ahke. Moreover, school committees have the 
power to change the duties assigned to a teacher, and may assign inter- 
changeably the duties of either of the aforesaid posts while retaining the 
individual teacher affected in the school department. Boody v. Barnstable, 
276 Mass. 134. 

It follows that a teacher's tenure of office will not be injuriously affected 
by a new assignment of duties as principal, which would appear to be in 
the nature of a promotion. 

As regards a later vote of a school committee declaring vacant the 
principalship to which such teacher had been elected by them, such vote 
would be within the authority of a school committee if by its terms it 
amounts merely to a reassignment of the duties of the teacher involved 
and does not impair any particular contract made with the teacher for 
services in the position of a principal. That the reason assigned for such 
vote may have been based on an incorrect view of the law would not 
necessarily render such vote void. If, however, the terms of the vote 
declaring the principalship vacant have the effect of discharging the 
teacher from the service of the school department, it would be invaUd, 
because, as you inform me, it was taken without a recommendation from 
the superintendent, as provided by said section 42, which recommenda- 
tion, as I have previously stated, is a necessary prerequisite to a dismissal, 
and because it does not appear, at least from the facts set forth in your 
communication, that other necessary prerequisites of a dismissal mentioned 
in said section 42 existed. 

Very tnily yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 37 

Registered Physician — Practice of Medicine — Sale of Eyeglasses. 

A registered physician may lawfully sell eyeglasses as an employee of a 

corporation. 

Feb. 10, 1936. 
Board of Registration in Medicine. 

Gentlemen: — You have asked my opinion in effect as to whether a 
registered physician employed by a corporation which sells eyeglasses, 
to fit the glasses for customers, violates that provision of G. L. (Ter. Ed.) 
c. 112, § 2, lines 32-34, which forbids a registered physician to act as prin- 
cipal or assistant in the carrying on of the "practice of medicine" by an 
unregistered person. 

The exact language of the applicable portion of said section 2 reads : — 

"The board, . . . after hearing, may revoke any certificate issued by 
it and cancel for a period not exceeding one year, the registration of any 
physician, who has been shown at such hearing to have been guilty of . . . 
acting as principal or assistant in the carrying on of the practice of medicine 
by an unregistered person. ..." 

The corporation to which you refer is an "unregistered person"; that 
is, it has not been registered as a qualified physician. It cannot, therefore, 
practise medicine nor may any registered physician lawfully aid it in so 
doing as principal or assistant. Davis v. Board of Registration, 251 Mass. 
283; Shong v. Shee, 254 Mass. 366. Of course, being a corporation, it 
could only act through its agents or assistants or other employees, one 
of which agents or assistants the physician whom you mention appears 
to be. Upon the facts, however, as you have set them forth, I am of the 
opinion that the corporation, by means of such physician, is not carrying 
on "the practice of medicine," within the meaning of said section 2, but 
that it is engaging in the "practice of optometry" as defined in section 66 
of said chapter 112. 

The phrases "practice of medicine" and "practice of optometry" are 
not used as if synonymous in said chapter 112. Doubtless the practice of 
optometry may be embraced in the practice of medicine, and for that 
reason, apparently, the Legislature has provided that registered physi- 
cians may practise optometry without being examined or registered as 
optometrists or subject to regulations applicable to others who practise 
optometry. G. L. (Ter. Ed.) c. 112, § 73. 

The acts which you have described in your communication as being 
done by a registered physician in the employ of a corporation are hmited 
to such as would fall within the phrase "practice of optometry," and they 
come within the phrase "practice of medicine" only as optometry is a 
single branch of the practice of medicine. The lesser "practice" does not 
include within itself the greater, and to assert that one who practiced 
optometry solely was thereby engaged in the "practice of medicine" would 
be unreasonable. 

The corporation in question cannot be deemed to be engaged in the 
"practice of medicine" because through an employee who is a physician 
it engages only in practicing optometry. I am not to be understood as 
intimating that a corporation may under any circumstances lawfully en- 
gage in the practice of medicine or of optometry. 

Very truly yours, 

Paul A. Dever, Attorney General. 



38 P.D. 12. 

Constitutional Law — School Committee — Eminent Domain — Park Lands. 

An act authorizing a school committee to take lands given to a town for 
park purposes, for use as an athletic field, to which admission may- 
be charged, is probably not constitutional. 

Feb. 13, 1936. 

Hon. Charles G. Miles, Chairman, Joint Committee on Education. 

Dear Sir : — You have asked my opinion as to the constitutionality of 
House Bill No. 86, entitled "An Act authorizing the school committee of 
the city of Quincy to take certain land for constructing and enclosing an 
athletic field." By the provisions of this proposed measure the school 
committee of the city of Quincy is authorized to take by eminent domain, 
under G. L. (Ter. Ed.) c. 79, "certain undeveloped park lands, more par- 
ticularly described in section two of this act, for the purpose of improving 
said park lands by constructing and enclosing an athletic field and erect- 
ing structures thereon in the name of the city for use in connection with 
athletics. Said school committee may rent the same for athletic contests, 
and may charge or permit a charge for admission thereto, but when not 
used shall, subject to reasonable rules and regulations, permit the inhabit- 
ants of said city to use the same as a playground." The land which is 
authorized to be taken is set forth by a description in section 2, and I am 
informed that it contains within its boundaries certain land conveyed to 
the city of Quincy by deed of Charles F. Adams, Jr., et al., executed Octo- 
ber 27, 1885, which deed, among others, contained this clause : — 

" To have and to hold the granted premises . . . to the said Inhabitants 
of Quincy and their successors and assigns to their own use and behoof 
forever; provided, however, and this conveyance is made upon the following 
express conditions: 

First, that the said grantee shall hold the aforegranted premises for- 
ever, and improve them as a public pleasure ground free to all inhabitants 
of Quincy, and shall apply them to no other use; . . ." 

The other sections of the bill authorize the city to raise money to the 
use of the school committee for the care of the land so acquired and the 
acquisition of additional land; for improvements and construction of 
buildings; for employment of teachers and other persons; and for the 
support and encouragement of recreation, play, physical education and 
athletics in said field, pursuant to its general purposes. 

The mere fact that the city of Quincy holds a portion of the property 
which is to be taken by eminent domain under a defeasible title, with a re- 
verter to the grantors upon breach of conditions, does not itself prevent 
the exercise of the power of eminent domain as set forth in the proposed 
statutes. 

The Supreme Judicial Court of this Commonwealth has said : " The right 
to take such land cannot depend upon the state of the title, however it 
may be hmited among the owners, whether in possession or in expectancy. 
It can make no difference that the legal title is in one, and the equitable 
title in others . . ." Batch v. County Commissioners, 103 Mass. 106, 115. 

The title of the reversionary owner is as much subject to this power of 
public appropriation as is the title of the sole owner of an absolute fee. 
Chandler v. Jamaica Pond Aqueduct Corpn., 125 Mass. 544; Wright v. 
Walcott, 238 Mass. 432, 435. 

Public parks estabUshed by a city or town are held by the city as an 



P.D. 12. 39 

agency of the government. HoU v. Somerville, 127 Mass. 408, 411; Clark 
V. Waltham, 128 Mass. 567, 569; Abbott v. Inhabitants of Cottage City, 
143 Mass. 521; Commonwealth v. Abrahams, 156 Mass. 57. They are 
not so held by a niunicipahty as though it were a private corporation. 
Accordingly, the State may appropriate them to another public use. 
Iligginson v. Treasurer, &c. of Boston, 212 Mass. 583. 

The question arises, then, in regard to the instant measure, whether the 
purpose for which the appropriation by eminent domain is authorized is 
a public purpose. Its purpose is stated as set forth above, and as an inte- 
gral part of the purpose the consequent use which is to be made of the 
land appears affirmatively, — the renting of the same for athletic contests 
and the charging by others of admission to the park, or at least so much 
of it as has been enclosed for an athletic jBeld. The power of the school 
committee in this respect is unlimited by the terms of the bill, except that 
they are required, when the land of the athletic fidd is not used for con- 
tests, to "permit" the inhabitants of the city the use of the same as a 
playground. 

Assuming that a part of the land now held by the city under the deed 
of gift from Mr. Adams, with its condition of free public use, be a part of 
the enclosed athletic field which may be rented, it is apparent that the 
intent of the measure is to change in an important particular the uses to 
which this park land may at present be put. Were it not for the presence 
of the second sentence of section 1, with relation to the renting of the 
enclosed athletic field and other structures referred to, I should have no 
doubt but that the act would be constitutional. 

As the measure at present reads, it may well be doubted if it is consti- 
tutional. Our Supreme Judicial Court has stated, in Higginson v. Treas- 
urer, &c. of Boston, 212 Mass. 583, 589: — 

"They [pubfic parks] cannot be made a source of revenue. . . . Their 
use by those most needing them might be prevented by any pecuniary 
charge. Historically, the advantages derived from parks never have been 
treated as proper subjects for private enterprise as have the other func- 
tions, which, when assumed by the city or town, have been regarded as 
private. ... It is the character of the use which stamps a given munici- 
pal venture as pubhc or proprietary. . . . Adopting this as the test, the 
dominant aim in the estabUshment of public parks appears to be the com- 
mon good of mankind rather than the special gain or private benefit of a 
particular city or town. . . . 

. . . The public purpose for which a city has acquired land in fee by 
the exercise of eminent domain, may be changed by law and the land 
devoted to some other pubhc use. No private right of reversion intervenes." 

The ultimate decision made by the court in the foregoing case, to the 
effect that the Legislature might properly authorize the erection of a high 
school of commerce upon land acquired for park purposes, is not at vari- 
ance with the views which I have expressed, because the high school was 
not, of course, operated in any manner for the pecuniary benefit of the 
municipality. 

In the case of Salisbury Land & Improvement Co. v. Commonwealth, 
215 Mass. 371, the court held as unconstitutional a statute which, while 
authorizing the acquisition of certain lands for park and reservation pur- 
poses, so coupled this authority with an added power to develop a portion 



40 P.D. 12. 

of the land for house lots that the whole act was unconstitutional, as a 
taking for a use which, when looked at as a whole, was seen to be not a 
public use but one beneficial to the municipality in its proprietary charac- 
ter. Any act of this character must be viewed as a whole in determining 
whether the proposed use is a public use rather than a use for the munici- 
pality in its private or proprietary character. Opinion of the Justices, 
204 Mass. 607. 

The apparent intent of this act as now worded is to destroy the com- 
plete free access which the public now enjoys to the park lands and to 
such games as may be held thereon, and make the same a possible source 
of pecuniary profit to the city by renting an enclosed portion thereof to 
outsiders. As the bill is now drawn, the school committee might, if they 
so elected, rent the athletic field and structures to a baseball team for an 
entire season, thereby excluding the public from the use of that portion 
of the park lands except upon the payment of admission fees to such lessee. 

If, after the land was acquired for a purely public purpose, a small 
admission fee was charged for attendance at athletic contests held under 
the auspices of the town officials themselves, such fee not being large 
enough to bring any net revenue to the town or to do more than insure 
the orderly character of the assembly, such regulation to that effect might 
be made by the proper authorities and might not be objectionable. But, 
as the measure stands, I am of the opinion that the taking authorized, 
under all the circumstances disclosed by the bill itself, would be held to be 
unconstitutional by our courts in any appropriate judicial proceedings 
which might arise out of its enforcement. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Transportation of School Children to Schools Other 

than Public Schools. 

It is not necessarily unconstitutional to enact a measure requiring school 
committees to furnish free transportation to children to schools other 
than public schools. 

Feb. 17, 1936. 

Hon. Charles G. Miles, Chairman, Joint Committee on Education. 

Dear Sir: — You have laid before me House Bill No. 1180, entitled "An 
Act providing that pupils in parochial schools shall be entitled to trans- 
portation to and from said schools in the same manner as pupils in public 
schools," and Senate Bill No. 282, entitled "An Act providing for the 
transportation of parochial and private school pupils to and from school." 

You seek my opinion as to whether these measures, if enacted into law, 
would be constitutional. 

There is no constitutional limitation upon education in this Common- 
wealth. Mass. Const. Amend. XLVI does not limit education in any 
degree. It prescribes no mode or method of education and makes no re- 
quirement as to institutions in which education must be received. The 
education of children is a pubhc purpose. It has long been fostered and 
encouraged in Massachusetts. The purpose to educate the children of 
the Commonwealth has become deeply embedded in our traditions. It is 
at the very bed rock of our institutions. The full measure of the police 
power of our legislative branch of government may be freely invoked to 



P.D. 12. 41 

further the cause and the interests of education. For many years in Massa- 
chusetts the education of children has been compulsory. It was said by 
Mr. Justice Hohnes, in Interstate Consolidated St. Ry. Co. v. Massachusetts, 
207 U. S. 79, 83, that education is one of the purposes for which what is 
called the police power may be exercised, and that Massachusetts has 
always recognized education as "one of the first objects of public care." 

While there is no constitutional limitation upon education itself in this 
Commonwealth, there is in the Constitution a prohibition as to legislation 
providing for the support and maintenance of private educational insti- 
tutions out of public moneys. This prohibition is found in Mass. Const. 
Amend. XLVI, and concerns not only private schools of common school 
grade but also all higher institutions of learning conducted under private 
auspices. 

It would seem to be manifestly clear that there are matters incidental 
or kindred to the education of children with reference to which the Legis- 
lature may exercise the law-making power without violation of any con- 
stitutional mandate. The providing of transportation for children to and 
from public and private schools out of public moneys appropriated by 
cities and towns is one of them. Legislation to that end within the scope 
hereinafter set forth would be constitutional. 

The principal test to be applied to such legislation is this: If the legis- 
lation contemplates making provision directly or indirectly for the sup- 
port and maintenance, in whole or in part, of private schools out of public 
moneys it is unconstitutional. If the purpose of the legislation, however, is 
to provide a benefit directly to the children attending private schools of 
common school grade, like the furnishing of transportation to and from 
school out of public moneys, the legislation is constitutional. 

The terms "parochial schools" and "private schools" as they appear in 
the text of the proposed legislation which you have submitted to me I 
interpret to mean schools which have an attendance of pupils in the same 
class as those in attendance at public schools established in accordance 
with G. L. (Ter. Ed.) c. 71, §§ 1 and 4. These terms, "parochial schools" 
and "private schools," as contemplated by the proposed legislation, would 
not include schools of theology, law, medicine, dentistry, music, art, archi- 
tecture, agriculture and many others devoted to technical or specialized 
training. With reference to the proposed legislation, "students in these 
schools are not in the same class with pupils in public schools. . . . The 
public schools . . . are intended to provide general instruction for all 
children and youth." Commonwealth v. Connecticut Valley St. Ry. Co., 
196 Mass. 309, 312. 

Mass. Const. Amend. XLVI, which was substituted for Mass. Const. 
Amend. XVIII, permits no broader powers to be granted under legislative 
sanction to cities and towns with reference to educational purposes than 
might have been granted under the earlier article. V Op. Atty. Gen. 204. 
Under the earlier article it was held by a former Attorney General that it 
would be unconstitutional for a town to vote and grant money to pay the 
tuition of children attending an academy in the town or to pay the tuition 
of children attending an academy outside of the town. I Op. Atty. Gen. 319. 
Prior to the adoption of Mass. Const. Amend. XLVI it was held by our 
Supreme Judicial Court that, under legislative sanction, money might be 
appropriated by cities and towns for conveying pupils to and from the pub- 
lic schools. Calling attention to the fact that compulsory attendance of 
children in the schools is provided for by our laws (R. L. c. 44, § 1; now 



42 P.D. 12. 

G. L. [Ter. Ed.] c. 76, §§ 1 and 2), the court said that it was within the 
province of the Legislature to "concern itself with the transportation of 
children to the public schools in the interest of popular education, just 
as it provides such children with books and other necessary articles." 
Commonwealth v. Interstate Consolidated St. Ry Co., 187 Mass. 436, 439, 
affirmed in Interstate Consolidated St. Ry. Co. v. Massachusetts, 207 U. S. 
79. Where a statute provided for half fares for children attending private 
as well as public schools, in traveling to and from school, the constitution- 
ality of the statute was sustained. Commonwealth v. Connecticut Valley 
St. Ry. Co., 196 Mass. 309. In that case it was held that the statute in- 
cluded within its scope pupils in private schools, within the meaning of 
R. L. c. 42, §§ 1 and 2 (now G. L. [Ter. Ed.] c. 76, §§ 1 and 2), but did not 
include pupils in certain other private schools which were operated by 
owners for profit. See also Selectmen of Clinton v. Worcester Consolidated 
St. Ry. Co., 199 Mass. 279, 290; V Op. Atty. Gen. 507, 509; Common- 
wealth V. Boston & Northern St. Ry. Co., 212 Mass. 82. 

The intended benefit sought by the proposed legislation, upon which 
you seek my opinion, is a benefit intended for children attending parochial 
and other private schools, as distinguished from a benefit intended for the 
schools themselves. In no sense under the terms of the legislation would 
the schools receive any aid or support or acquire any property rights out 
of the expenditure of pubhc moneys, the use of public property, or the use 
of public credit. Cochran v. Board of Education, 281 U. S. 370. The end 
sought by the legislation has no relation whatever to the founding, main- 
taining or supporting of private schools. 

The intended purpose of the proposed legislation is a public purpose 
clearly within the province of the police power of the Legislature. Legis- 
lation, however, authorizing the payment of money directly to private 
schools for transportation of children, thereby in effect lightening the 
burden of operating expenses of such schools, would be unconstitutional. 
It would violate Mass. Const. Amend. XL VI. But legislation authoriz- 
ing cities and towns to appropriate and expend money for transportation 
furnished directly to the children, and not to the schools, would violate 
no constitutional provision, either State or Federal. 

The plain intent of the constitutional provision (Mass. Const. Amend. 
XLVI) is to prohibit the appropriation or use of public moneys, property 
or credit for the founding, maintaining or support, in whole or in part, of 
private as distinguished from public schools. That was the main object, 
with reference to educational institutions, sought to be accomplished by 
its adoption. Parochial schools, as well as other private schools, mani- 
festly come within the sweep of this amendment. The use of public 
moneys, property or credit for the founding, maintenance or support of 
private schools, in whole or in part, would be clearly unconstitutional. 

There appears to be nothing repugnant to the provisions of Mass. 
Const. Amend. XLVI in legislation authorizing the appropriation of 
public moneys by cities and towns for the purpose of transporting chil- 
dren to and from school. Legislation authorizing the appropriation of 
public moneys by cities and towns for this purpose for public schools has 
withstood the test of many years before and since the adoption of the 
constitutional amendment under consideration, because such legislation is 
constitutional. It would be absurd and futile to question it on constitu- 
tional grounds. Under the proposed legislation money would not be paid 
to the schools for transportation, thereby in any case lightening their 



P.D. 12. 43 

burdens of operating expenses, but the transportation would be furnished 
directly to the children by the cities and towns making appropriations 
therefor. Nothing would go into the treasuries of private schools, for 
such a course would be illegal and unconstitutional. 

The conservation of the health and the protection of the safety of chil- 
dren attending school are important factors to be taken into consideration. 
They are matters of public concern and vitally affect the interests of the 
pubhc. The proposed legislation does not merely benefit the children; 
it benefits the public as well. It authorizes the appropriation and expendi- 
ture of public moneys by cities and towns for a public purpose. Common- 
wealth V. Boston Advertising Co., 188 Mass. 348, 352. 

I am therefore of opinion that there is no constitutional objection to 
either House Bill No. 1180 or to Senate Bill No. 282. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Constitutional Law — Reinstatement of Municipal Employee separated from 
the Public Service — Retirement. 

A bill which provides for retirement of certain employees under conditions 
more favorable to them than to others of the same general class, even 
if such employees are veterans, is probably unconstitutional. 

Feb. 25, 1936. 
House Committee on Rules. 

Gentlemen : — You have asked my opinion as to whether two pro- 
posed bills now before your committee would, if enacted into law, be 
constitutional. 

One provides that a former member of the police department of Pitts- 
field, "illegally separated therefrom on December 13, 1933, shall be 
reinstated in said department for the sole purpose of being retired under 
the provisions of section 57 of chapter 32 of the General Laws." 

The other provides that a former member of the fire department of said 
city, who was "illegally separated therefrom on November 23, 1933, 
shall be reinstated in said department for the sole purpose of being retired 
under the provisions of section 57 of chapter 32 of the General Laws." 

Both measures provide for full payment of salary less retirement sys- 
tem deductions to be made to the former employees from the time of 
their respective illegal separations, and further provide that the annual 
pension to be paid upon retirement shall amount to one-half the com- 
pensation received at the time of separation from the service. 

You inform me that the "city of Pittsfield" has not accepted the pro- 
visions of G. L. (Ter. Ed.) c. 32, §§ 56-59, which by their terms are not 
to be effective in any city until the retiring authority (in the case of a 
city the mayor) has accepted them. I assume that you mean that the 
said retiring authority of Pittsfield has not accepted the said provisions. 
These provisions provide for the retirement of certain veterans. 

I am of the opinion that the General Court may, if in its opinion the 
pubhc welfare demands it and the circumstances are such that the Com- 
monwealth is under a moral obhgation, reinstate in the pubhc service a 
fireman or policeman illegally separated therefrom who now has no other 
mode of effecting restoration, and may provide for his present retirement 



44 P.D. 12. 

in accordance with existing retirement laws. In so far as the proposed 
measures accomphsh this it cannot be said that they are unconstitutional. 

The present measures, however, in addition to reinstating such em- 
ployees, direct that they be retired under the provisions of certain portions 
of the law which you inform me are not in effect in the city which is to be 
their employer. These portions of the law providing for retirement of 
certain veterans are in certain respects more favorable to veterans than 
to other employees. To provide for the retirement of two particular 
individuals under laws more favorable to them than to other employees 
in their general class, under laws not applicable to others but to them 
alone, appears to me to violate well-known principles of constitutional 
law. Assuming that the employees in question are veterans within the 
meaning of G. L. (Ter. Ed.) c. 32, §§ 56-60, although it does not appear 
from the text of the measures that they are in fact veterans, they are 
given certain advantages in regard to retirement not given to other veteran 
employees in the city of Pittsfield. 

It is axiomatic under the guaranties of the principles underlying our 
system of law established by the Constitutions of the Commonwealth 
and the United States, as set forth in the Declaration of Rights, articles 
VI, VII and X, and the Fourteenth Amendment to the Constitution of 
the United States, that a legislative act which confers on an individual 
exemption from the operation of general laws applying to all others simi- 
larly situated, or gives to him privileges not open to others in like case, 
is not constitutional. Bogni v. Perotti, 224 Mass. 152, 156-157; Com- 
monwealth V. Hana, 195 Mass. 262, 267; Brown v. Russell, 166 Mass. 14, 
21-25; Yick Wo v. Hopkins, 118 U. S. 356; Truax v. Corrigan, 257 U. S. 
312, 332-339. 

The proposed measures are in effect special acts which, in relation to 
the mode of retirement provided for the individuals named in them 
respectively, provide exemption from general laws concerning retirement, 
applicable to all other similar employees of Pittsfield, and the application 
to them alone, for their benefit, of laws not governing such other em- 
ployees. If enacted into law the measures would, in my opinion, be un- 
constitutional. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Commitment of Insane — Experts. 

An act defining the qualifications of an expert in insanity, with relation 
to appointment for certain purposes, would be constitutional. 

Feb. 28, 1936. 

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

Reading. 

Dear Sir: — You request my opinion as to the constitutionality of 
House Bill No. 40, entitled "An Act relative to experts in insanity." 

The proposed legislation upon which you seek my opinion is an amend- 
ment to G. L. (Ter. Ed.) c. 123, § 100. It relates to the matter of the 
commitment to institutions for the insane for proper care or observation 
of persons charged with crime pending the determination of the question 
of insanity. It is provided in the existing statute, which it is now proposed 



P.D. 12. 45 

to amend, that the court may, in its discretion, in order to effect the pur- 
pose of the statute, employ one or more experts in insanity or other phy- 
sicians quahfied as provided in G. L. (Ter. Ed.) c. 123, § 53. 

The pertinent provisions of the proposed amendment are as follows : — 

"For the purposes of this section, an expert in insanity shall be a quali- 
fied physician who has had either three years' full-time practice in the 
care and treatment of persons suffering from mental disease or mental de- 
ficiency in a hospital or school within or without the commonwealth pro- 
viding for the care of such persons and having accommodations for not less 
than thirty such patients, or who has devoted the five years immediately 
preceding to a practice confined wholly or substantially to the care and 
treatment of persons suffering from mental disease or mental deficiency." 

This amendment proposes to establish certain requirements as to the 
professional qualifications of physicians called upon to render a highly 
important public service connected with the administration of criminal 
justice. It seeks to define and secure a standard to which the selection of 
physicians for such service must conform. What is sought by the proposed 
legislation is that the physicians selected by the courts from time to time 
as cases arise must, in order to be selected, possess an adequate degree of 
learning, experience and skill in a specialized field of micdicine. It is the 
clear intent of the proposed act that the learning, experience and skill of 
the physicians selected by the courts shall have been acquired more or 
less in a prescribed mode of training and be appropriately in keeping with 
the importance of the duties to be performed. It is in the public interest 
that only those scientifically trained in a specialized field may act in mat- 
ters coming so exclusively within that field. 

"It has been held in numerous cases that the practice of medicine is 
subject to reasonable public regulation by the several States under the 
poUce power without offending any provision of the Federal Constitu- 
tion." Commonwealth v. Houtenbrink, 235 Mass. 320, 323; Dent v. West 
Virginia, 129 U. S. 114; McNaughton v. Johnson, 242 U. S. 344, and cases 
cited. Such legislation violates no provision of the Massachusetts Consti- 
tution. It is in the public interest and clearly within the police power. 
Commonwealth v. Jewelle, 199 Mass. 558; Commonwealth v. Zimmerman, 
221 Mass. 184; Commonwealth v. Houtenbrink, 235 Mass. 320. "The 
power of the State to provide for the general welfare of its people author- 
izes it to prescribe all such regulations as, in its judgment, will secure or 
tend to secure them against the consequences of ignorance and incapacity 
as well as deception and fraud." Dent v. West Virginia, 129 U. S. 114, 
122. "The maintenance of a high standard of professional qualifications 
for physicians is of vital concern to the public health and reasonable regu- 
lations to this end do not contravene any provision of the State or Federal 
Constitution." Commonwealth v. Porn, 196 Mass. 326, 329. 

It is a matter of common knowledge that there has been ever-increasing 
specialization in recent years in the medical profession. Men devoting 
their time and talents to a limited field or branch of medicine acquire 
specialized scientific learning, experience and skill not possessed by the 
ordinary practitioner. Commonwealth v. Zimmerman, 221 Mass. 184, 188; 
Commonwealth v. Porn, 196 Mass. 326. 

The mere fact that a physician has been duly admitted as a practitioner 
of medicine would give him no tenable claim of right to be selected by the 
court for the performance of the professional service contemplated by G. L. 



46 P.D. 12. 

(Ter. Ed.) c. 123, § 100, and by the legislation under consideration. He 
would not be deprived of any right, constitutional or otherwise, if the pro- 
posed legislation were enacted into law. The opportunity is open to all 
physicians who so desire to equip themselves to meet the proposed statu- 
tory requirements and thereby become eligible for selection by the courts. 
"The Legislature is ordinarily the proper judge of the necessity for the 
exercise" of the police power. Bancroft v. Cambridge, 126 Mass. 438, 441. 
Under the police power the Legislature may pass all manner of reasonable 
and wholesome laws in the interest and protection of the public health, 
morals, convenience, welfare and safety. Commonwealth v. Alger, 7 
Cush. 53. 

It is within the competency of the Legislature to change the rules gov- 
erning the introduction of evidence and make admissible evidence that 
theretofore was barred by the common law. Ibanez v. Winston, 222 Mass, 
129. Commonwealth v. Slavski, 245 Mass. 405. Likewise, the quahfica- 
tion of witnesses may be altered and those who were incompetent to testify 
at common law may now be permitted to appear as witnesses. The de- 
fendant in a criminal case may testify in his own behalf, and a husband 
and wife may be competent witnesses against each other, and, in certain 
cases, are even now allowed to narrate matters of such a private nature 
that their disclosure was formerly prohibited on the ground of public policy. 
Commonivealth v. Spencer, 212 Mass. 438. Commonwealth v. Rosenblatt, 
219 Mass. 197. 

I am therefore of the opinion that the proposed legislation, if enacted 
into law, would not offend any constitutional provision. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Utilities — Permit to operate — Interstate Commerce. 

Under G. L. (Ter. Ed.) c. 159B, the Department of Pubhc Utilities has no 
jurisdiction over carriers engaged solely in interstate commerce; but 
it has jurisdiction to issue permits described in said statute to contract 
carriers and others engaged, in part at least, in intrastate commerce,- 
as far as regards public safety. 

March 3, 1936. 

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

Dear Sir: — I have received from you the following request for an 
opinion: — 

"The Commission of the Department of Pubhc Utilities requests your 
opinion as to what jurisdiction, if any, under the provisions of chapter 264 
of the Acts of 1934 and amendments thereof, the department now has over 
carriers of property for hire by motor vehicles engaged solely in interstate 
commerce." 

(1) Under the provisions of G. L. (Ter. Ed.) c. 159B (inserted by St. 
1934, c. 264), an emergency measure, entitled "An Act providing for the 
safety and regulation of the use of the highways by motor vehicles trans- 
porting property for hire in the Commonwealth, and for the supervision 
and control of such motor vehicles and such transportation," it would 
appear that your department has no jurisdiction to perform acts mentioned 
in the said statute in connection with common carriers engaged solely in 
interstate commerce. 



P.D. 12. 47 

Section 1 of chapter 159B reads, in part, as follows : — 

"The term 'common carrier' as used in this section means any person 
engaged in the common carriage of property for hire by motor vehicle over 
regular routes between points within this commonwealth. The words 
'regular routes' as herein used mean routes over which any person is 
usually or ordinarily operating any motor vehicle, even though there may 
be departures, periodic or irregular, from said routes." 

It is apparent from this definition of the term "common carrier" that 
it is confined to persons who transport property only in intrastate com- 
merce, or, as the statute puts it, "between points within this common- 
wealth." 

(2) As regards "contract carrier," the definition of the statute is as 
follows : — 

"The term 'contract carrier' as hereinafter used is intended to include 
every person engaged in transporting property for hire by motor vehicle, 
other than a common carrier as defined in section one." 

With regard to such contract carriers, even if they are engaged solely 
in interstate commerce, your department has jurisdiction to issue permits 
described in section 5, provided that any rules and regulations concerning 
such permits and specifications as to operations made by your depart- 
ment under the provisions of said section 5 are not such as directly to 
burden interstate commerce. 

The granting of permits to persons engaged in interstate commerce, in 
the interests of safety, in connection with the use of the highways of a 
given State, has been upheld in numerous decisions of courts of authority 
as not being in itself such a direct burden on interstate commerce as is 
forbidden by the provisions of the Constitution. 

The title of the act indicates that its purpose is the promotion of safety 
in the use of the highways. You will have jurisdiction to issue permits, 
charge a statutory fee therefor, assign number plates, make a charge 
therefor, and make reasonable rules and regulations with relation to such 
plates for transfers. Regulation of interstate carriers in these and similar 
respects connected with the use of the highways has been sustained re- 
peatedly bj^ courts of authority. Bradley v. Public Utilities Commission, 
289 U. S. 92, and cases there cited. 

Where the promotion of safety is the real purpose of regulation in the 
granting of permits, it may be carried out even though the carriers are 
engaged solely in interstate commerce; but if the promotion of safety is 
merely an incident of the statutory or other regulation and its true pur- 
pose is to prevent competition, such authority over those engaged solely 
in interstate commerce cannot be exercised by the legislature nor by de- 
partments of state. Buck v. Kuykendall, 267 U. S. 307; Bush & So7is Co. 
v. Maloy, 267 U. S. 317. And classification such as is called for by section 
8 of said chapter 159B, based on priority, to authorize operation in connec- 
tion with interstate carriers is not invalid. Bradley v. Public Utilities, 
supra. It cannot be said, however, that your department has jurisdiction 
under section 6 of said chapter 159B to regulate rates of contract carriers 
engaged solely in interstate commerce, since the rates charged by such 
contract carriers engaged solely in interstate commerce must necessarily 
be for hauls, the termini of which are not within the Commonwealth, so 
that a regulation of the rates of such contract carriers would of necessity 



48 P.D. 12. 

place a direct burden upon interstate commerce as carried on by them. 
The imposition of such a direct burden is not permitted to States under the 
Constitution, and although States, in the absence of congressional inactiv- 
ity upon the subject matter of rates, may establish maximum intrastate 
rates for interstate carriers which will not be said directly to burden inter- 
state commerce if they are reasonable in themselves, nevertheless the 
application of rates to carriers engaged solely in interstate commerce is of 
itself unwarranted. Minnesota Rate Cases, 230 U. S. 352, and opinions 
there cited. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Employee — Member of the Legislature — Salaries. 

A member of the General Court, after prorogation and payment of his 
full legislative salary, may accept a salary for services in another 
office of the State government. 

March 5, 1936. 

Hon. Albert H. Bigelow, Chairman, House Committee on Ways and 

Means. 

Dear Sir: — Your committee, through you, has asked my opinion 
upon the following question : — 

"Is a person who has received a full legislative salary for a given year 
entitled to receive any other State salary during the same year?" 

I assume the question must be passed upon by the committee in con- 
nection with proposed legislation now before it for its consideration. 

I answer your question to the effect that, if a person has received a 
full legislative salary for a given year, after the payment thereof he will 
not be in receipt of salary as a member of the General Court; and if he 
thereafter accepts a salary for services in another office or position of the 
government subsequently rendered during the year, he will be entitled to 
such salary. His acceptance of such later salary, under the circumstances 
described in your question, does not violate the prohibition of G. L. (Ter. 
Ed.) c. 30, § 21, which reads: 

"A person shall not at the same time receive more than one salary from 
the treasury of the commonwealth." 

Nor does it violate any other provision of law. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Rules and Regulations — Employee. 

March 18, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You have asked my opinion relative to the appHcation of 
Rule 30, section 2, of the Civil Service Rules and Regulations to the em- 
ployee of a landowner whose land has been purchased by the Common- 
wealth through the Metropolitan District Commission. 

Rule 30, section 2, reads : — 



P.D. 12. 49 

"Whenever any class of employees in the Commonwealth or in any 
city or town not already in the classified service is placed therein, either 
by statute or by a rule, or whenever the Commonwealth, any city or town 
takes over any work that has previously been done by a private contrac- 
tor, the Commissioner shall include in the classified service all of the 
employees who have been actually doing the work prior to the classifica- 
tion." 

If the caretaker was, as your letter indicates, an employee of the former 
landowner, no work "that has previously been done by a private con- 
tractor" has been taken over by the Commonwealth. The caretaker, 
from the facts set forth in your letter, does not appear to have been the 
employee of a "private contractor." The word "employees" as used in 
the second line from the end of the above rule, section 2, obviously means 
employees of a private contractor. The word "employees" as used in 
the first line of said section obviously means employees of the Common- 
wealth or of a municipal government. The caretaker of whom you speak 
appears to fall within neither of the described classes. His relation with 
the prior owner of the land, upon the facts as you have set them forth in 
your letter, appears to have been that of master and servant, and the rule 
in question has no applicability as to him. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Disabled Veteran — Proofs of Disability. 

An applicant for preference as a disabled veteran may prove that his dis- 
abiUty was received in the manner designated by the statute and is 
of a continuing nature, even if he is not in receipt of a pension or com- 
pensation from the United States. 

March 18, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion in effect as to whether or 
not a disabled veteran can establish his status as such under G. L. (Ter. 
Ed.) c. 31, § 23, even if he is not in receipt of a pension or compensation 
from the United States. 

I answer your question in the affirmative. 

The forms of proof which are essential to the estabUshment of disabiUty 
by a veteran under said section 23 have in certain respects been put in the 
alternative, and the applicant for preference under the civil service laws 
may avail himself of one or the other of these alternative methods. It 
appears to have been the intent of the Legislature in enacting said section 
23 to make provision for proof of requisite degree of disability by a veteran 
who was not in receipt of a Federal pension or compensation. 

Every applicant for preference as a disabled veteran must (1) present 
a certificate of a physician approved by the board that his disability is 
not such as to prevent the efficient performance of the duties of the post 
to which he is ehgible; and (2) proof satisfactory to the Commissioner 
that disability was received in line of duty in the mihtary or naval service 
of the United States in time of war or insurrection and is a continuing dis- 
abihty. Beside said certificate the applicant must (3) also present an 
honorable discharge or an equivalent release from the mihtary or naval 



50 P.D. 12. 

service of the United States; and (4) proof that he is, at the time of his 
appHcation for appointment, disabled. 

He may offer as proof of (2) — that disability was received in line of 
duty in the United States service in time of war or insurrection — (A) 
records of the Adjutant General of the army of the United States or 
records of the navy department or the marine corps or a certificate of 
receipt of pension or compensation from the United States. If the above- 
described proofs are absent he may instead offer as proof of (2) — tHat 
disability was received in fine of duty in the United States service in 
time of war or insurrection — (B) a certificate from a physician, approved 
by the Board, that he is substantially handicapped for industrial life 
through injury or iUness, and other proof satisfactory to the Commis- 
sioner that such handicap was received in line of duty as aforesaid and 
is a continuing disabihty. 

In other words, if the applicant does not have a United States pension 
or compensation to offer as evidence, he may still prove that his disability 
was received in the designated manner and is of a continuing nature by 
the method described above by the clause (B). 

This interpretation of the law is entirely consistent with the opinion of 
the Supreme Court in Sheehan v. Hurley, Mass. Adv. Sh. (1936), p. 27, 
January 2, 1936; and that of McCahe v. Judge of District Court, 277 Mass. 
55, 59; and the opinion of the Attorney General rendered to you on Jan- 
uary 13, 1936 {ante, p. 24). 

Very truly yours, 

Paul A. Dever, Attor-ney General. 

Civil Service — Police Department — Vacancy — Reserve Officer. 

March 18, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my advice upon the following question 
to aid you in the performance of duties now before you : — 

"Will you kindly give me your opinion as to whether or not you believe 
the Salem pohce department is correct in considering that its force consists 
of sixty members, or whether it actually consists of only fifty-nine mem- 
bers." 

The pohce department of Salem is estabhshed under chapter XXVIII 
of the ordinances of that city, of which the first section reads : — 

"A police department is hereby estabhshed which shall consist of a city 
marshal, two captains, four lieutenants who shall act as inspectors, two 
sergeants, one of said sergeants to be known as a traffic sergeant, fifty-one 
patrolmen, three of whom shall act as motorcycle officers to be on duty in 
that capacity from April first to November first of each year, and such 
other times as the city marshal may order, sixteen reserve officers, one 
janitor, one clerk and one matron, but nothing in this section contained 
shall be deemed to affect the tenure of office of any person now holding 
office in said department as a chauffeur or keeper of the lock-up. Their 
compensation shall be determined by the city council, but no compensa- 
tion shall be paid except for one day off in every eight days of actual service 
and for vacations all as hereinafter provided in section six unless service 
has been actually rendered during each day for which compensation is 
sought. The one day off in eight shall not apply to the clerk." 



P.D. 12. 51 

This section provides for a police force of sixty regular members. 

It would appear, from facts stated in your letter to me, that one of these 
sixty positions is at the present moment vacant by reason of the fact that 
one of the former lieutenants has been promoted to the position of chief or 
"city marshal." It is obvious that the same person cannot hold both 
positions, as they are plainly incompatible, so the acceptance of the mar- 
shalship by the lieutenant left a vacancy in the latter office. This, as I 
understand it, has not yet been filled. 

The ordinance also provides for a reserve police force to consist of six- 
teen members. Inasmuch as the regular force consists of sixty members, 
this number of reserve officers is correctly established under the terms of 
G. L. (Ter. Ed.) c. 147, §§11 and 12, which read: — 

"Section 11. Any city, except Boston, in which the city council, with 
the approval of the mayor, accepts this and the two following sections or 
has accepted corresponding provisions of earlier laws, may establish a 
reserve police force; and appointments thereto shall, subject to chapter 
thirty-one, be made in the same manner as appointments to the regular 
police force of said city. 

Section 12. The number of members of such reserve force shall not 
exceed five in cities in which the number of members of the regular force 
does not exceed fifteen. If the number of members of the regular force 
exceeds fifteen, one member may be added to the reserve force for every 
three of the regular force above fifteen and not above thirty; one for every 
five of the regular force above thirty and not above eighty; and one for 
every ten of the regular force above eighty." 

The fact that there is at the present moment a vacancy in one of the 
sixty positions on the regular police force as constituted under the ordinance 
does not reduce the "number of members of the regular force," as the 
quoted words are used in section 12, below the number at which such 
regular force is set by the ordinance. Temporary vacancies of positions 
in the regular force, which may be filled from time to time, do not reduce 
the established number of reserve officers to which the city is entitled, 
created upon a proper ratio with the regular force as permanently fixed 
by the municipal ordinance. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Counties — Cities and Towns — Reimbursement for Salaries — Dog Officers. 

March 24, 1936. 

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

Dear Sir : — You have made the following request for an opinion : — 

"Your opinion is respectfully requested as to whether counties are per- 
mitted under G. L. (Ter. Ed.) c. 140, § 151, as last amended by St. 1934, 
c. 320, § 13, to reimburse cities and towns for the salary, wages or other 
compensation paid dog officers." 

I am of the opinion that it was not the intent of the Legislature as ex- 
pressed in G. L. (Ter. Ed.) c. 140, § 151, as amended by St. 1934, c. 320, 
§ 13, that municipalities should be reimbursed by counties for stated 
salaries paid dog officers. Whatever may have been thought of the inten- 
tion as expressed in the earlier form of said section, it would seem to be 



52 P.D. 12. 

made clear by the said amendment that dog officers other than pohce 
officers and constables, who are employed on regular pay, are to be persons 
working upon the basis of itemized achievement, and that towns paying 
them the amount prescribed for each item are to be reimbursed for such 
items and for no other expenditures in this connection. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Banking Institutions and Insurance Companies — Loans — National Hous- 
ing Act. 

March 24, 1936. 

Hon. John F. M alley. State Director, Federal Housing Administration. 

Dear Sir: — You inquire whether or not, in my opinion, St. 1935, 
c. 162, authorizing banking institutions and insurance companies to make 
loans insured under the provisions of the National Housing Act, is limited 
to such provisions of the National Housing Act as they stood at the time 
of the enactment, or appUes to said act as it is and as it may be amended. 

In my opinion, the intent of the Legislature was to make this measure 
apphcable for the authorizing of loans under the provisions of the National 
Housing Act both as it existed at the time of the passage of said chapter 
162 and as it might be amended, and that no additional enabling legisla- 
tion is necessary to authorize the Massachusetts institutions to function 
under any amendment that may be adopted by Congress. I am confirmed 
in my opinion by the fact of the reference to the Act of Congress in said 
chapter 162 by its particular name, which indicates an intent on the part 
of the State Legislature to treat the Federal plan embodied in the particu- 
lar act as an approved plan originating with Congress and subject to such 
modifications and amendments as Congress might see fit in the future to 
apply thereto. 

I am further confirmed in my view by the fact that it has been custom- 
ary for our State Legislature, in many instances, in acts of a similar char- 
acter to that of chapter 162, wherein institutions were authorized to do 
various acts in pursuance of Federal enactments, to employ language 
similar to that used in the instant measure, and to speak of the congres- 
sional measure by reference to its date of enactment or by its commonly 
applied name. In such instances the context of the various measures 
indicates that the Legislature intended that the reference to the Federal 
act should not be limited to its phraseology as it stood at the time of the 
passage alone, but should extend to congressional amendments which 
might be made in the future in connection with its general scope. This 
is particularly noteworthy in connection with the acceptance and authori- 
zation of expenditures under the National Social Securities Act embodied 
in St. 1935, c. 494. 

A similar use of words is employed by the Legislature in connection with 
the National Industrial Recovery Act [St. 1934, cc. 49 and 163; St. 1935, 
c. 464, § 1 (3)] with relation to projects under the provisions of the Hayden- 
Cartwright Act; and with the Division of Public Employment Offices 
for co-operation with the United States under the Wagner-Puyser Act 
(St. 1935, c. 479). See also St. 1935, c. 492, § 2; c. 409, §§ 1 and 2; 
c. 308. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 53 

Public and Private Schools. 

March 27, 1936. 

Hon. James G. Reardon, Commissioner of Education. 

Dear Sir: — You ask my opinion as to what is the meaning of the 
word "school" as used in the phrase "pubHc or private school" in G. L. 
(Ter. Ed.) c. 71, § 30A, as inserted by St. 1935, c. 370, with relation to 
the teachers' oath, so called. 

The word "school" has various meanings as used in different enact- 
ments. It may have a limited scope or, according to the context in which 
it is used, it may at times have a broad meaning. I am of the opinion that 
the words "pubhc school" as used in the instant statute were intended 
by the Legislature not to be limited merely to the common schools which 
all young children between certain designated ages are obliged to attend 
regularly, unless they receive equivalent instruction elsewhere. But there 
is a wide variety of other public schools authorized to be maintained 
throughout the Commonwealth, including high schools, evening and night 
schools, and others of diverse character. I think that the words "public 
school" as used in the instant statute were intended to embrace any one 
of such schools, and that the words "private school" embrace any insti- 
tutions of learning not maintained at public expense which give instruc- 
tion substantially the same as that given in any such pubUc school. 

There is also another meaning of the word "school," which I think was 
intended to be effective as the word is used in the instant statute by the 
Legislature, and that is, to denote an institution of higher learning where 
instruction is given such as is commonly provided in the graduate depart- 
ments of colleges and universities. Where such institution is separate 
from a college or university, I am of the opinion that it comes within the 
meaning of the word "school" as used in said section 30 A. Whether a 
school of this last-named type is public or private, it is included within the 
meaning of the word "school" as I have indicated. 

With regard to any particular institution which may come before you 
for consideration, you will be able to determine as a fact whether it is or 
is not a school, guided by the principle of law which I have indicated. 

The Attorney General cannot attempt to classify the different institu- 
tions in a general way. Each specific case must be dealt with by you by 
itself by the principles already enunciated above. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Cities — Elections — Special Provision. 

The city election in Marlborough in 1935, under St. 1935, c. 37, on the first 
Tuesday in November was held on the proper date. 

March 27, 1936. 

Hon. Chester W. Chase, House Chairman, Joint Committee on Cities. 

Dear Sir : — Your committee has requested my opinion, in connection 
with House Bill No. 1368, now before it, as to whether the biennial munic- 
ipal election which was held in the city of Marlborough on the first Tuesday 
in November, 1935, was held on the proper date. 

I am advised that the former city charter of Marlborough was changed 



54 P.D. 12. 

by the acceptance by the city on November 1 , 1922, of St. 1922, c. 275. 
Thereafter, by the terms of said chapter 275, the city elections were to 
"be held biennially on the first Tuesday in December in every odd num- 
bered year." 

On March 7, 1932, the city accepted St. 1932, c. 37, and thereafter, 
beginning in 1933, the municipal elections were, by the provisions of said 
chapter 37, required to be "held biennially on the first Tuesday in Novem- 
ber in every odd numbered year." 

You inform me that the city of Marlborough accepted the provisions 
of G. L. (Ter. Ed.) c. 54, § 103A, presumably before the election of 1935. 
The terms of said section 103A, originally enacted in 1933, do not of them- 
selves affect the provisions of law in said St. 1932, c. 37, relative to the 
date for holding elections in Marlborough, for there are no terms or pro- 
visions in section 103A which purport to establish a new date for city 
elections which have previously been held by law biennially in the odd 
numbered years, as were those in Marlborough. 

A statute of 1922, St. 1922, c. 237, § 3, amending G. L., c. 43, now em- 
bodied in G. L. (Ter. Ed.) c. 43, § 15, does provide as follows in its last 
paragraph : — 

"If the plan adopted provides for elections to be held biennially in every 
odd numbered year, then the regular municipal election held under the 
provisions of such plan shall take place on the Tuesday next following the 
first Monday of December in every odd numbered year." 

This provision, however, was enacted into law prior to the enactment of 
the special law, said St. 1922, c. 275, which regulated the municipal elec- 
tions in Marlborough and established a date for them different from the 
date set up for city elections in the general law, said chapter 237. That 
is, the general law set the Tuesday after the first Monday in December as 
the date for biennial municipal elections under a plan providing for elec- 
tions in the odd numbered years, and the special law relative to Marl- 
borough, which differed in several respects from the general law embodied 
in G. L., c. 43, as amended by said St. 1922, c. 237, provided for elections 
biennially on the first Tuesday in December in every odd numbered year. 

The provisions of the special act take precedence over the general law, 
under familiar principles of statutory construction. So that Marlborough, 
from the date of the enactment of St. 1922, c. 275, was governed as to the 
date of its city elections by a different rule from that applicable to other 
cities governed solely by G. L., c. 43, as amended by St. 1922, c. 237. The 
amendment of the special law applicable to Marlborough alone, said St. 
1922, c. 275, by St. 1932, c. 37, created a new date for the Marlborough 
city elections, and this still remains in effect notwithstanding the passage 
of St. 1933, c. 313, now G. L. (Ter. Ed.) c. 54, § 103A, which did not pur- 
port to affect it, and the presence in the general laws of G. L. (Ter. Ed.) 
c. 43, as amended by St. 1922, c. 237, does not, as has been said, control it. 

Accordingly, I am of the opinion that the city election in Marlborough 
in 1935, conducted as required by the amending statute, St. 1932, c. 37, 
on the first Tuesday in November, was held on the proper date. . 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 55 

Department of Education — Municipality — Reimbursement — Transpor- 
tation. 

March 31, 1936. 

Hon. James G. Reardon, Commissioner of Education. 

Dear Sir : — You have asked me in effect as to whether your depart- 
ment may properly approve (under the provisions of G. L. [Ter. Ed.] 
c. 71, §§ 6 and 7) for reimbursement the expenses of a town not required 
to maintain a high school in transporting a pupil to a high school in another 
town for a fifth year of instruction after the pupil has graduated upon the 
completion of the school's regular four-year course. 

I am of the opinion that you are not required to approve such expense. 

Although the definition of "high school" in section 11 of said chapter 
71 applicable to said sections 6 and 7 is silent as to the duration of the 
course of study in such institution, it is to be assumed that the Legislature 
had in mind the provisions of section 4 of said chapter 71 requiring a high 
school to give a course of four years only. I am of the opinion that it was 
the intent of the Legislature to limit the obhgation of reimbursement to 
the usual period of such a four years' course of study. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Police Officer — Municipal Ordinance. 

A municipal ordinance which is in direct conflict with provisions of the 
civil service law is of no effect in controlling the action of the Com- 
missioner of Civil Service. 

March 31, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion, to guide you in performing 
your duties, as to the effect of an ordinance of the city of Leominster which 
reads as follows : — 

"No regular officer shall be eligible for promotion in the Police De- 
partment unless he has served at least five years as a permanent patrol- 
man." 

Your contention, set forth in your letter, "that such ordinance is of 
no effect" in limiting the power of your Commission with relation to the 
examinations and promotions referred to in your letter is correct. The 
ordinance is in direct conflict with those provisions of the civil service 
law, G. L. (Ter. Ed.) c. 31, to which you refer. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Registration of Hairdressers — License — Exemptions. 

St. 1936, c. 55, has the effect of making it unnecessary for persons prac- 
tising facial and scalp massage to obtain a license from a local board 
of health. 

April 6, 1936. 

Miss Mary E. Carmody, Chairman, Board of Registration of Hairdressers. 

Dear Madam : — In response to your recent inquiry, I advise you that 
the provisions of St. 1936, c. 55, have the effect of freeing persons prac- 



56 P.D. 12. 

tising facial and scalp massage from the necessity of obtaining a license 
from a local board of health and being subject to its rules, and from survey 
and inspection by police officers of a municipality. These persons are 
placed in the same situation as were those practising manicuring, by virtue 
of the amendment to sections 51 and 52 of G. L. (Ter. Ed.) c. 140, when 
St. 1935, c. 428, §§ 3 and 4, became law. 

Very truly yours, v 

Paul A. Dever, Attorney General. 

Chiropodist — Certificate of Registration — Renewal. 

April 9, 1936. 
Mr. James J. Sughrue, Director of Registration. 

Dear Sir: — The Board of Registration in Medicine, through you, 
has asked my opinion as to whether a duly registered chiropodist who has 
failed to renew his certificate of registration, which by the terms of G. L. 
(Ter. Ed.) c. 112, § 16, expires on the last day of the year in which it was 
granted, is, notwithstanding such failure, entitled to practise chiropody. 

In my opinion he is not so entitled. The language of G. L. (Ter. Ed.) 
c. 112, § 16, provides that a chiropodist shall be registered and shall re- 
ceive a certificate. It then provides: "Every such certificate shall expire 
on the last day of the year when it was granted, but upon payment of two 
dollars may be renewed by the board for each subsequent year without 
examination." This annual payment of two dollars, for which a new cer- 
tificate is given, is, of course, in the nature of a license fee. Indeed, in 
the original statute, from which the provisions of the General Laws were 
adopted. Gen. St. 1917, c. 202, such certificate was referred to in section 
9 thereof specifically as "a license." The words of said section as now 
used in section 18 of the instant act are "to receive or hold such certifi- 
cate." 

It is apparent from the context of the whole law applicable to chiropo- 
dists, G. L. (Ter. Ed.) c. 112, §§ 13-23, with the accompanying provisions 
of section 61, that it was the intent of the Legislature, as expressed in this 
law, that a chiropodist should not engage in the practice of chiropody 
unless he was duly registered and had a valid certificate to that effect. 
The words in section 16, — "shall be registered and shall receive a cer- 
tificate as a registered chiropodist, . . . Every such certificate shall ex- 
pire on the last day of the year when it was granted, but upon payment 
of two dollars may be renewed by the board for each subsequent year 
without examination", — plainly show the intent of the General Court 
in this respect. 

The language of these sections of chapter 112 dealing with chiropodists 
differs in so many particulars from that of St. 1927, c. 147, concerning 
dentists and their right to practise, that the opinion of a former Attorney 
General, VIII Op. Atty. Gen. 501, in relation to dentists as governed by 
said statute of 1927, contains nothing not in harmony with the instant 
opinion, but enforces the correctness of my view as based upon the ex- 
press language of the instant sections of the statute relative to chiropodists. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 57 

Constitutional Law — Barbers — Regulation of Hours of Labor. 

An act empowering the Board of Registration of Barbers to establish, 
under penalty, maximum hours of labor for registered barbers in 
various localities would not be constitutional. 

April 21, 1936. 

House Committee on Rules. 

Gentlemen : — You have asked my opinion as to whether an act regu- 
lating the hours of labor of barbers, now before your committee, would 
be constitutional if enacted into law. 

I am of the opinion that it would not be constitutional. 

The proposed measure empowers the Board of Registration of Barbers, 
after certain preliminaries, to establish, under penalty of fine or imprison- 
ment, maximum hours of labor for registered barbers and apprentices in 
various localities. There does not appear to be such direct connection 
between the hours of labor for barbers and apprentices with the public 
health, safety or general welfare as to differentiate this proposed measure 
from any other act which attempts by legislative authority to prevent the 
free exercise of the right of contract as between employers of adult men 
and their employees as to hours of labor. Such exercise of legislative 
authority has been held to be unconstitutional as violating the provisions 
of the Fourteenth Amendment to the Constitution of the United States, 
in Lochner v. New York, 198 U. S. 45, and the Supreme Judicial Court of 
Massachusetts has specifically stated that it was strictly bound by the 
decision in Lochner v. New York (see Holcombe v. Creamer, 231 Mass. 99, 
112). There are other grounds upon which the constitutionality of the 
instant proposed measure may well be doubted but to which it is not 
necessary to refer, as the considerations which I have set forth are con- 
trolling. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Nominations — Corrupt Practices — State Conventions. 

April 23, 1936. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

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

"Will you kindly give me your opinion whether or not the provision of 
G. L. (Ter. Ed.) c. 55, § 1, referring to expenditures or contributions of 
candidates for nomination or election, and the provision of section 4 of 
said chapter referring to filing by a non-elected political committee which, 
among other purposes, favors certain persons as candidates, apply to any 
candidates who seek the endorsement of the State convention of their 
political party. In other words, whether or not before such convention a 
person would be legally considered a candidate for nomination or election 
rather than a candidate for endorsement by the convention." 

I am of the opinion that the provisions of G. L. (Ter. Ed.) c. 55, § 1, 
apply equally to all persons seeking nomination for a public office, whether 
or not any of them also seek the endorsement of a State convention to 
their nominations under G. L. (Ter. Ed.) c. 53, § 54, as amended, which 
nominations will ultimately be made, if at all, at the primaries. 



58 P.D. 12. 

Such persons are candidates for office before the holding of such State 
conventions, and are referred to in said section 54, as amended, in the 
following manner: "A political party shall . . . hold a state convention 
for . . . endorsing for nomination candidates for offices to be filled by 
all the voters." 

It is true that some individual may not, as a matter of fact, be seeking 
nomination for a political office until after a State convention, but it is 
also true that some other individual, as a matter of fact and by his own 
representations, may be an avowed candidate for nomination at the 
primaries long before such a convention, and may seek the endorsement of 
a convention merely as one of the steps to the successful attainment of 
the nomination which he desires. 

The same general considerations apply to section 4 as far as applicable. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Reserve Police Officer — Removal. 

A reserve police officer appointed under G. L. (Ter. Ed.) c. 147, § 11, may 
not be removed otherwise than under the terms of the civil service 
laws. 

April 27, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You ask in effect whether a reserve police officer in a 
city, appointed under the provisions of G. L. (Ter. Ed.) c. 147, § 11, and 
serving under the provisions of section 13 of said chapter 147, may be re- 
moved without compUance with the terms of G. L. (Ter. Ed.) c. 31, § 42A. 

I am of the opinion that such a reserve police officer may not be re- 
moved otherwise than under the civil service laws, as they are applicable 
to him by section 42 A of said chapter 31. 

It is generally to be assumed, in regard to positions created in the service 
of the Commonwealth or of cities, that it is the intent of the Legislature 
that they shall be governed by the civil service laws unless something in 
the particular statute relative to a certain position, or positions, indicates 
a legislative intent to exclude such position, or positions, from the general 
scope of the protection of such laws. No such intent is manifest in said 
sections 11 and 13 relative to reserve police officers. Indeed a contrary 
intention would appear to be specifically indicated. The appointment of 
such officers is stated to be "subject to chapter 31," the civil service law, 
and by section 20A of said chapter 31 certain rights of promotion to the 
regular police force have been given to members of a reserve police force, 
which would be made void if such reserve police officers might be removed 
at the pleasure of any official merely because they had not been called on 
for active duty during a two-year, or any other arbitrarily selected, period. 
Such reserve officers are plainly entitled to the protection of section 42A, 
like other police officers, against arbitrary removal. That they are en- 
titled to such orderly form of removal is further made clear by the omis- 
sion to provide for any other form of removal, as the Legislature did with 
relation to reserve officers in towns. G. L. (Ter. Ed.) c. 147, § 13A. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 59 

Statute — Flood Relief — Retrospective Effect. 

April 27, 1936. 
Hon. George E. Murphy, Commissioner-Comptroller. 

Dear Sir: — In answer to your recent communication, I am of the 
opinion that the money appropriated from the highway fund, by St. 1936, 
c. 186, for the reconstruction and repair of State highways damaged by 
the flood, in the sum of $2,000,000, may be used to pay expenses incurred 
in such repairs prior to the date upon which the act became effective. I 
assume that when such expenses were incurred there was money in the 
treasury under some appropriation available to the Department of Pub- 
lic Works from which they could have been paid, but I think it was the 
intent of the Legislature, as apparent from the text of the instant act as 
a whole, that this particular sum of $2,000,000 should be used for the pay- 
ment of expenses directly due to the flood, and that expenses incurred in 
such projects a few days before its passage are to be paid from this particu- 
lar item as much as any other expenses due to the flood. In other words, 
the intent of the Legislature appears to have been to take care of all ex- 
penses chargeable to the Commonwealth as a result of the flood, in con- 
nection with the reconstruction and repair of State highways, from this 
appropriation. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Established List — Eligibility. 

May 1, 1936. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You ask my opinion as to the length of eligibilit}'^ for ap- 
pointment to a position in the public service of a person who was placed 
upon an eligible list on March 21, 1935, although others were placed upon 
such list ten months earlier. 

Civil Service Rule 12, section 2, which is applicable, reads: — 

"No person shall remain eligible for more than two years upon any 
eligible list unless the Commissioner shall for cause continue the eligibiUty 
beyond said period." 

This rule specifies a maximum time for which an individual may remain 
eligible. It does not establish this maximum time with relation to the eli- 
gibihty of any other person of the same class nor with relation to the time 
when such class or such list was established. I am of the opinion that 
the maximum time of two years referred to in this rule applies to the 
person of whom you write from the date when he was placed upon an eli- 
gible list, irrespective of what may have occurred before such date, and 
that such maximum time when his eligibility would cease under the rule, 
in the absence of a continuation thereof by you for cause, would be not 
May 31, 1936, but March 21, 1937. 

Very truly yours, 

Paul A. Dever, Attorney General. 



60 P.D. 12. 

Right of Way — Acquisition hy Prescription. 

May 4, 1936. 

Palmer C. Williams, Captain, 101st Field Artillery, Massachusetts Na- 
tional Guard. 

Dear Sir : — I am in receipt from you of a communication regardiilg 
the legality of the use of the rear entrance to armory property owned by 
the Commonwealth and situated in the city of Taunton. 

According to your letter, the use of the rear entrance involves passing 
over the way known as King's Court, leading to Court Street, in Taunton. 

You further state that "the Witherell's easterly line does not appear 
to encroach upon nor to block King's Court." I find that the deed to 
L. M. Witherell & Sons specifically sets out that the building of L. M. 
Witherell & Sons be clear out of King's Court. 

You request my opinion as to the right of the Commonwealth to use 
the way known as King's Court in Taunton, leading to Court Street. 

The Commonwealth became vested with an easement in a right of way 
known as King's Court, adjoining the property of the Commonwealth 
and occupied by the Massachusetts National Guard in Taunton. 

The land in question, adjoining King's Court, was acquired by one 
Ellen V. Galligan by two deeds, in the years 1879 and 1880, and came to 
the Commonwealth of Massachusetts on March 22, 1916, by deed of 
Annie M. Galligan. 

It appears that the way in question has been used without interruption 
for more than forty years. Ellen GalHgan had used the way while she 
owned the close from 1880 to 1904. Annie M. Galligan, her successor in 
title, continued to use the way, and to this date the Commonwealth has 
used the way since the date of acquiring the property on March 22, 1916. 

Whatever rights the several prior grantors have had in the way have 
been conveyed by their deeds and have come to the Commonwealth of 
Massachusetts, and the use of the way has been continued under claim of 
title long enough to establish a right by prescription. 

Former owners of land now owned by the Commonwealth, adjoining 
this right of way, had acquired an easement to use the right of way known 
as King's Court in order to reach Court Street. Barnes v. Haynes, 13 
Gray, 188; Reed v. West, 16 Gray, 283; Gordon v. City of Taunton, 126 
Mass. 349; Inhabitants of Deerjield v. Connecticut River R.R., 144 Mass. 
325; Baldwin v. Boston & Maine R.R., 181 Mass. 166; Bigelow Carpet 
Co. V. Wiggin, 209 Mass. 542; Dorntree v. Lyons, 224 Mass. 256. 

An uninterrupted adverse use and enjoyment of an easement for a 
period of twenty years, unexplained, is sufficient to warrant the presump- 
tion of a grant. Gordon v. City of Taunton, 126 Mass. 349; Stearns v. 
Janes, 12 Allen, 582; Blake v. Everett, 1 Allen, 248. 

In my opinion, therefore, the Commonwealth of Massachusetts has a 
legal right to use the right of way known as King's Court in Taunton, 
to reach Court Street, and the Commonwealth has a legal right to have 
this right of way unobstructed. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 61 

National Guard — State Quartermaster — Armory Commission. 

The State Quartermaster is not entitled to receive pay as a member of 
the Armory Commission unless by special order of the Governor. 

May 8, 1936. 
Brig. Gen. William I. Rose, The Adjutant General. 

Dear Sir: — You have asked my opinion as to whether or not the 
State Quartermaster is entitled to receive five hundred dollars a year as 
a member of the Armory Commission. 

I am of the opinion that he is not so entitled. 

G. L. (Ter. Ed.) c. 6, § 18, provides, in its appHcable part: — 

"The governor, with the advice and consent of the council, shall ap- 
point a commissioner, who, together with the adjutant general and the 
chief quartermaster, shall be armory commissioners. The adjutant 
general shall serve without compensation; the chief quartermaster and 
the commissioner shall receive such pay for duty performed as the com- 
mander-in-chief shall order . . . ." 

In other words, the compensation of the chief quartermaster for duty 
performed as a member of the Armory Commission is fixed by the Gov- 
ernor, as he is the commander-in-chief. 

It appears from a communication which you have sent me that by an 
order of the Governor, dated March 13, 1935, such compensation of the 
present chief quartermaster when performing the duties of a member of 
the Armory Commission was fixed at nothing. 

An inclusion by the Legislature thereafter of an item in a budget of a 
sum from which compensation might be paid the chief quartermaster for 
such performance of duty as an Armory Commissioner does not of itself 
fix a sum as compensation or estabhsh pay for the quartermaster when 
performing such duty. It merely makes such sum available for paying 
compensation or pay for the performance of said duty if and when the 
commander-in-chief shall by an order establish such compensation or pay 
at an appreciable sum. In the absence of any order of the Governor 
subsequent to his said order of March 13, 1935, the chief quartermaster 
is not entitled to receive the whole or any part of such budget item as 
pay. 

Very truly yours, 

Paul A. Dever, Attorney General. 

County Retirement Association — Probation Officer — Court Officer. 

May 8, 1936. 
Board of Probation. 

Gentlemen : — You request my opinion concerning the relation of a 
probation officer of a district court to the county retirement system. 

It has been determined, in an opinion rendered by my predecessor in 
office to the Commissioner of Corporations and Taxation (Attorney 
General's Report, 1934, p. 72), that the holding by a probation officer of 
a juvenile court of the position of a court officer in said court was proper, 
and that service as such court officer did not prevent his "whole time" 
being "given to the duties of his office" as a probation officer, as the 
quoted words are used in G. L. (Ter. Ed.) c. 32, § 75. With this opinion 



62 P.D. 12. 

I concur, and think it applicable to the positions of probation officer and 
court officer in a district court. 

It has also been determined, in another opinion rendered by the same 
former Attorney General to the Commissioner of Insurance (Attorney 
General's Report, 1932, pp. 67, 69), in which I concur, that probation 
officers of the district courts are included within the scope of those em- 
ployees who are prima facie required to be members of an appropriate 
county retirement association, but that a probation officer who has had 
twenty consecutive years of service is entitled to a pension under G. L. 
(Ter. Ed.) c. 32, §§ 75 and 76, and so would probably be no longer eligible 
as a member of the county retirement association by reason of the provi- 
sions of G. L. (Ter. Ed.) c. 32, § 22 (3). Prior to reaching his twentieth 
consecutive year of service, however, such a probation officer is not, 
nor will be, entitled to a pension except upon some contingency. There 
is only a possibility of his receiving a pension, and the bare possibility of 
receiving it did not debar him from becoming a member of the retirement 
association when he first became an employee. 

From the facts stated in your letter it does not appear that the officer 
of whom you write has had in fact twenty consecutive years of service, 
so that he will continue as a member of the retirement system. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Statute — Flood Relief — Removal of Silt. 

May 11, 1936. 

Brig. Gen. William I. Rose, The Adjutant General, Chairman, Commission 
on Emergency Flood Relief. 

Dear Sir : — You have asked my opinion in the following language : — 

''Your opinion is respectfully requested as to whether or not the Com- 
mission on Emergency Flood Relief, created under the provisions of St. 
1936, c. 144, is justified in paying for the plowing and removal of silt in 
the Connecticut and Merrimack valleys." 

St. 1936, c. 144, reads: 

"Section 1. To provide for the payment of military and other emer- 
gency expenses in safeguarding the lives and preserving the health and 
safety of the inhabitants in the areas of the commonwealth damaged by 
floods, the sum of seven hundred and fifty thousand dollars is hereby ap- 
propriated from the Highway Fund, subject to the provisions of law regu- 
lating the disbursement of such funds and the approval thereof. All 
activities hereunder shall be carried on under the direction of a board 
consisting of the adjutant general, the commissioner of public health, the 
commissioner of public welfare and the commissioner of pubhc safety. 

Section 2. The facilities and services of all departments and agencies 
of the commonwealth shall be made available to the said board to such 
extent as he may require, and all expenses incurred on the call of the 
said board by said departments and agencies shall be paid from the ap- 
propriation made by section one. In carrying out the provisions of this 
act, the said board shall co-operate with all federal agencies and with all 
local and civic organizations engaged in relief work in the flooded area in 
such manner as he deems best. All activities under this act shall be so 



P.D. 12. 63 

co-ordinated by the said board as to avoid duplication of work and need- 
less expenditure of money and to expedite relief in the flooded area." 

It is a question of fact, in the first instance, to be passed upon by your 
Commission, as to whether the presence of silt deposited on lands within 
the Commonwealth by floods creates or is likely to create in the near 
future a condition menacing the health of the inhabitants in the areas 
damaged by floods, against which immediate measures to preserve or 
safeguard the same are reasonably necessary. 

You have laid before me certain reports of commissions in other juris- 
dictions, and an opinion of the Commissioner of Public Health of Massa- 
chusetts which in effect confirms as his own view the expressions of such 
reports, as to the very real and immediate damages to the public health 
which are Ukely to arise when silt is deposited as the aftermath of floods. 
The Attorney General does not pass upon questions of fact; but, in view 
of the foregoing, it could not be said, as a matter of law, that a determina- 
tion by your Commission as to the damages to public health from the 
presence of such silt and a use of the money appropriated under said act 
for the removal thereof were not entirely within the scope of the powers 
given you under said chapter 144. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Board of Registration of Hairdressers — Rules and Regulations — Powers. 

It is not within the authority of the Board to create a rule forbidding plac- 
ing of price lists where they are visible from outside a shop. 

May 21, 1936. 

Miss Mary E. Carmody, Chairman, Board of Registration of Hairdressers. 

Dear Madam : — You have requested an opinion as to whether the 
following rule made by the Board on February 27, 1936, was a rule which 
it was within the power of the Board to make. 

You advise me that the rule is as follows : — 

"There may be posted in each shop a list of prices for hairdressing 
services, but no shop shall display in the windows, or in any other place 
where visible from outside the shop any price list or matter relating to 
the prices for hairdressing services." 

The authority given to the Board to make rules and regulations, which, 
when violated, subject the violator to punishment by fine as well as other 
penalties (G. L. [Ter. Ed.] c. 112, § 87 HH), is as follows: — 

G. L. (Ter. Ed.) c. 112, § 87CC: 

"The board shall make such uniform and reasonable rules and regu- 
lations as are necessary for the proper conduct of its business, the estab- 
lishment of proper standards of professional skill in relation to, and the 
proper supervision of, hairdressers, manicurists, operators, shops, schools, 
students and apprentices, and especially may prescribe such sanitary 
rules, subject to the approval of the department of public health, as it 
may deem necessary to prevent the spreading of infectious or contagious 
diseases, or both, but nothing herein shall authorize the board to limit the 
number of hairdressers, manicurists, shops, schools, operators, students or 
apprentices in the commonwealth or in any given locality, or to regulate 



64 P.D. 12. 

or fix compensation or prices, or to refuse to register a shop solely for the 
reason that such shop is to be conducted by a person in his own home on 
a full or part time basis, or to interfere in any way with the conduct of 
the business of hairdressing or manicuring, except so far as is necessary 
for the protection of the public health, safety or morals." 

I am unable to say that the displaying of a price Hst in the windows of 
a shop or in any place visible from the outside can be considered as rea- 
sonably "necessary" (1) for the proper conduct of the business of the 
board, or (2) to the estabhshment of proper standards of professional 
skill or the proper supervision of persons or places mentioned in said 
section 87CC, or (3) to such sanitary rules as are referred to in said 
section 87CC. 

Moreover, such a rule would seem to fall within the prohibition of the 
latter portion of said section 87CC which specifically classes as outside 
the rule-making authority vested in the Board by the first portion of said 
section 87CC any rule or regulation which interferes "in any way with 
the conduct of the business of hairdressing or manicuring, except so far 
as is necessary for the protection of the pubHc health, safety or morals." 
The display of a price hst in a shop where it is visible to the pubhc outside 
does not appear to me to be capable of being thought reasonably neces-. 
sary for the protection of the public health, safety or morals. 

Accordingly, I am of the opinion that it was not within the authority 
of your Board to make said rule. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Fines — Disposition — Illegal Parking. 

June 1, 1936. 

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

Dear Sir : — You advise me as follows : — 

"In auditing the books of the various district courts, the examiners in 
the Division of Accounts of this department have found that in the city 
of Cambridge the police department have treated as non-existent the 
provisions of St. 1934, c. 368. This act provides for the non-criminal 
disposition of charges for the violation of motor vehicle parking rules, 
regulations, orders, ordinances and by-laws. The city of Cambridge has 
elected to continue to operate under an ordinance which had continued 
for some years before October 1, 1934, the effective date of chapter 368. 
In lieu of following the procedure outlined in chapter 368, they have by 
a continuation of the old ordinance procedure issued a summons which 
required a court hearing and a court record." 

In so far as the proper disposition of fines collected under the provisions 
of G. L. (Ter. Ed.) c. 90, § 20A, inserted therein by St. 1934, c. 368, for 
illegal parking is concerned, the applicable principles were fully laid down 
in an opinion by my predecessor in office, with which I concur. Attorney 
General's Report, 1934, p. 107. There is nothing in the amendment of 
said section 20A by St. 1935, c. 176, which changes these principles. 

As was pointed out therein, illegal parking is not a violation of any 
section of G. L. (Ter. Ed.) c. 90, but it may be a violation of a local ordi- 
nance adopted by a city or town under authority of G. L. (Ter. Ed.) 



P.D. 12. 65 

c. 40, § 22. Said section 20A, as amended, sets up a mode of procedure 
which must be followed in prosecuting breaches of such a local ordinance 
as regulates parking. This form of procedure, from the language employed 
l)y the Legislature in enacting the section, appears to be exclusive of any 
other, both as to the institution of proceedings, their conduct and the im- 
position of fines, except in certain specific instances set forth in the last 
paragraph of said section 20A, as amended, namely, — 

(1) When a person shall not desire to avail himself of the benefits of 
the procedure established by the section; and 

(2) When a person is charged with a fourth or subsequent offence com- 
mitted within a calendar year. 

In these particular instances section 20A provides that the ordinary 
"procedure established for criminal cases" shall be followed. In all other 
instances it is mandatory that the new form of procedure set up by the 
provisions of said section 20A, as amended, shall be employed in the dis- 
position of parking violations in district and municipal courts. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commissioner of Correction — Removal of One convicted of Murder from a 
County Jail to the State Prison. 

June 1, 1936. 

Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You seek my opinion as to whether or not there is au- 
thority under the provisions of St. 1935, c. 50, § 1, to remove one Newell 
P. Sherman, convicted of murder in the first degree and now under sen- 
tence of death, from the county jail at Worcester to the State Prison at 
Boston for safekeeping. From the facts stated in your letter it appears 
that Newell P. Sherman was convicted in the Superior Court at Worces- 
ter on October 1, 1935, for the crime of murder in the first degree; that 
the alleged crime was committed on July 20, 1935; and that sentence of 
death was imposed by the Superior Court on May 29, 1936. 

St. 1935, c. 50, § 1, authorizes the Commissioner of Correction, upon 
the request of the sheriff of a county, to transfer persons convicted of 
murder in the first degree and awaiting execution of sentence to the State 
Prison at Boston. The statute, so far as section 1 is concerned, relates 
to "a male person convicted of murder in the first degree committed prior 
to October first," 1935. By the express terms of the statute, sections 1 
and 6 became operative upon their passage. The statute was approved 
by the Governor on March 8, 1935. Thereafter, the Legislature enacted 
St. 1935, c. 437, which by its express terms took effect on October 1, 1935. 
While section 7 of St. 1935, c. 437, repealed St. 1935, c. 50, §§ 1 and 6, 
it provided in section 8 that — 

"This act shall take effect on October first of the current year and shall 
apply only in case of persons convicted of capital crimes committed on or 
after said October first. Notwithstanding the provisions of this act, the 
provisions of law effective as to a capital crime committed before said 
October first shall continue in effect thereafter with respect to such crime." 

The crime for which Newell P. Sherman stands convicted and sen- 
tenced was committed on July 20, 1935. His case therefore came within 
the sweep of St. 1935, c. 50, § 1, which was in force at the time of the com- 



66 P.D. 12, 

mission of his offence. The saving clause in St. 1935, c. 437, § 8, preserves 
the force and apphcation of St. 1935, c. 50, § 1, as to the instant case. 

I am therefore of the opinion that you have authority, if in your opinion 
the pubhc safety requires, to transfer Newell P. Sherman from the county 
jail at Worcester to the State Prison at Boston. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Municipalities — Laborers — Vacations. 

June 2, 1936. 

Hon. James T. Moriarty, Commissioner of Labor and Industries. 

Dear Sir : — In reply to your recent letter relative to vacations of 
laborers in cities, let me say that the provisions of St. 1914, c. 217, which 
provided that all laborers regularly employed by cities or towns shall be 
granted a vacation of not less than two weeks during each year of their 
employment in cities or towns which accepted the act, were modified by 
the Legislature in Gen. St. 1915, c. 60, which provided that in cities which 
had accepted said St. 1914, c. 217, the heads of the executive departments 
might be required to grant such vacations by vote of the city council, 
approved by the mayor. This act of 1915, in effect, amended the act of 
1914 so that the acceptance of the latter did not of itself require the grant- 
ing of such vacations, but provided that they might be required by vote 
and approval as above set forth. Both acts are now codified in G. L. 
(Ter. Ed.) c. 41, § 111. 

Accordingly, in the city to which you refer in your letter a vote by the 
council, approved by the mayor, after acceptance of said St. 1914, c. 217, 
is essential to a legal requirement for the giving of such vacations by the 
heads of the municipal departments. This does not mean, however, that 
having once passed such a vote and having it approved, similar votes are 
necessary annually thereafter to keep alive the requirement; once such 
a vote has been passed and approved, a vacation of two weeks must be 
given each year to any "common laborer, skilled laborer, mechanic or 
craftsman" employed by such city 



Very truly yours, J| 



Paul A. Dever, Attorney General. 



Board of Registration of Nurses — Superintendent of Worcester State Hos- 
pital — Compensation. 

The superintendent of the Worcester State Hospital is not entitled to 
receive wages or compensation when serving on the Board of Regis- 
tration of Nurses under G. L. (Ter. Ed.) c. 13, § 15. 

June 4, 1936. 

Mr. James J. Sughrue, Director, Division of Registration. 

Dear Sir: — You have asked my opinion as to whether a member of 
the Board of Registration of Nurses, who receives a salary from the Com- 
monwealth as superintendent of the Worcester State Hospital, may also 
receive the compensation prescribed for members of said Board when in 
the performance of his duties as such member. 

G. L. (Ter. Ed.) c. 13, § 15, reads: — 



P.D. 12. 67 

"Each member of the board, except the secretary, shall receive five 
dollars for every day actually spent in the performance of his duties; 
provided, that the total sum paid to any member thereof shall not in any 
one year exceed one hundred and fifty dollars, and the necessary traveling 
expenses actually incurred in attending the meetings of the board. Said 
compensation and traveling expenses, and any incidental expenses neces- 
sarily incurred by the board or any member thereof, shall be paid by the 
commonwealth; provided, that such compensation and expenses shall not 
be in excess of the receipts for registration paid to the commonwealth by 
the board." 

The language setting forth the pay which the members of the Board 
are to receive was obviously employed by the Legislature in the foregoing 
section with a distinct intent to indicate that the mode of remuneration of 
members of the said Board was to be by another mode than that of a sal- 
ary. Not only does the context of the section itself denote this, but that 
of the whole chapter wherein the word "salary" is used with relation to 
the pay of members of other boards and their officers, but not with rela- 
tion to the pay of the members of this particular Board. That the words 
with relation to the pay of the members of this Board, as meaning some- 
thing other than "salary," were deliberately employed by the General 
Court in connection with this Board is also indicated by the fact that 
section 14 provides that the secretary of the Board shall be the secretary 
of the Board of Registration in Medicine, an officer already receiving a 
salary from the Commonwealth prior to the enactment of St. 1910, c. 449, 
the original form of G. L. (Ter. Ed.) c. 13, §§ 14 and 15, and then specifi- 
cally sets forth that he "shall receive as compensation" as secretary of 
the nurses' board a sum to be fixed by the Governor and Council. The 
General Court was, of course, aware of the prohibition against an official 
receiving two salaries from the Commonwealth at the same time (G. L. 
[Ter. Ed.] c. 30, § 21), and so plainly indicated that what the secretary 
of this Board was to receive for his work was not a salary additional to 
the one of which he was already in receipt through his other position (G. L. 
[Ter. Ed.] c. 13, § 11), but something different, namely "compensation." 

Said G. L. (Ter. Ed.) c. 30, § 21, reads: — 

"A person shall not at the same time receive more than one salary 
from the treasury of the commonwealth." 

"The word 'salary' is hmited to compensation for services established 
on an annual or periodical basis and paid usually in installments, at stated 
intervals, upon the stipulated per annum compensation. It differs from 
the payment of a wage in that in the usual case wages are established 
upon the basis of employment for a shorter term, usually by the day or 
week, or on the so-called 'piece work' basis, and are more frequently 
subject to deductions for loss of time." V Op. Atty. Gen. 700. 

The remuneration of the members of this Board is based upon a day's 
work actually performed, with a maximum as to the total amount which 
may be received for such days of work. Such remuneration is a compen- 
sation or a wage, but it is not a salary as those words are used in said 
chapter 30, section 21. 

However, since G. L. (Ter. Ed.) c. 29, § 31, provides that — 

"Salaries payable by the commonwealth shall, ... be in full for all 
services rendered to the commonwealth by the persons to whom they are 
paid." — 



68 • P.D. 12. 

it would seem that the work of an official of the Commonwealth already 
receiving a salary may not be paid for in any manner unless rendered 
during hours when such salaried official is not required to be attending to 
the duties of his salaried position. 

It would seem doubtful if the duties of a member of this Board could 
well be rendered outside of the usual working hours of a superintendent of 
a State hospital, since the last-named position is not one which calls Jor 
only part-time service. This being so, such a superintendent is not en- 
titled to receive any money either as wages or compensation when per- 
forming duties for this Board. See V Op. Atty. Gen. 701. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Municipal Election — Vote on Suspension of St. 1934, c. 275, § 105B. 

June 5, 1936. 
Hon. Ernest J. Dean, Commissioner of Conservation. 

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

"I respectfully request your opinion on the following question, — 
In accordance with the provisions contained in St. 1934, c. 275, §§1 
and 4, can a town or city, other than in the year of the act, legally vote 
on the question of the suspension of section 105B, or to make said sec- 
tion again operative if suspension has previously been made at a special 
town meeting for the election of a single town official to fill a vacancy and 
not at the regular municipal election?" 

I am of the opinion that the words "at a municipal election," as used 
in G. L. (Ter. Ed.) c. 131, § 105C (inserted by St. 1934, c. 275), in the last 
line thereof refer to a regular annual town meeting held for the election 
of town officers under the provisions of G. L. (Ter. Ed.) c. 39, or to a regu- 
lar town election for the choice of officers held under the provisions of 
G. L. (Ter. Ed.), c. 54, and that they do not refer "to a special town 
meeting for the election of a single town official to fill a vacancy." 

The pertinent part of said section 105C reads: — 

"If a majority of the votes cast in such city or town in answer to the 
question submitted is in the affirmative, said section one hundred and 
five B shall not, or shall, as the case may be, thereafter apply in such 
city or town unless and until a majority of the voters thereof voting on 
the other question at a municipal election vote thereon in the affirmative." 

The context of the whole amending act, St. 1934, c. 275, shows that 
the Legislature used the words "a municipal election" deliberately, as 
contrasting with and meaning something different from the phrase "a 
special town meeting," which latter words were employed in section 4 of 
said St. 1934, c. 275. The Supreme Judicial Court, in its opinion in 
Mount Washington v. Cook, 288 Mass. 67, 73, has taken the words used 
earlier in said section 105C, "next municipal election," as meaning a 
"regular municipal election"; and in like manner, in my opinion, the 
words "a municipal election" should be construed as meaning a regular 
and not a special election in a town. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 69 

Civil Service — Provisional Appointment — Veterans' Preference. 

June 8, 1936. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion with relation to provisional 
appointments of veterans. I assume from your letter, although you do 
not so state, that there was no suitable eligible list from which to certify 
to fill the requisition for inspectors made upon you by the Board of Regis- 
tration of Hairdressers. I also assume, although you do not so state spe- 
cifically, that the requisition sent you by the Board of Registration of 
Hairdressers was one "calling for women." 

If there was no suitable eligible list and the requisition sent you by the 
Board was for inspectors who should be women, the provisions of said 
section 25 had no application to the situation, for by the very terms of 
said section itself it is provided that the "section shall not apply to a 
requisition calling for women"; and you were not obliged, therefore, "to 
send to the appointing officer the names and addresses of veterans who 
have filed appUcations for the kind of work for which requisition is made," 
nor was it required that "the position shall be filled provisionally by the 
appointment of a veteran." It was then open to you, under G. L. (Ter. 
Ed.) c. 31, § 15, and Civil Service Rule 21, for you to authorize a provi- 
sional appointment or to authorize the appointing board to select a suit- 
able person who shall be subjected to a noncompetitive examination. If, 
however, the requisition in question did not call for women alone, you 
would not be justified in omitting from the fist of veterans who had filed 
applications for the kind of work for which the requisition was made the 
name and address of any woman veteran who had so filed such application. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Works — Contracts — Preferences for Veterans and Citizens. 

June 9, 1936. 

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

Dear Sir : — In answer to your recent communication, you are cor- 
rect in your interpretation of St. 1935, c. 461, as you have set it forth in 
your letter, in so far as you interpret said statute as meaning that pref- 
erence must be given on public works, in connection with all contracts 
made by counties, towns or districts, to veterans and citizens who are 
residents of such counties, towns or districts, respectively; and this 
applies also to contractors and subcontractors. 

Very truly yours, 

Paul A. Dever, Attorney General. 



70 P.D. 12. 

Constitutional Law — Dry Cleaning and Dyeing Plants — Licenses — 

Supervision. 

The Legislature may not constitutionally delegate to a board that power 
to make laws which is vested in itself. 

June 11, 1936. 

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

Reading. 

Dear Sir : — You have requested my opinion as to whether House Bill 
No. 1748, entitled "An Act providing for the registration and licensing 
of dry cleaners and dyers and establishing a board of registration there- 
for," would, if enacted into law, violate any provision of the Constitution 
of the Commonwealth or of the United States. 

I am of the opinion that the proposed measure, if enacted into law, 
would be unconstitutional. 

The measure provides for licensing dry cleaning and dyeing plants of a 
certain type, and establishes a board of registration of dry cleaners and 
dyers. I assume that the type of business of dry cleaning and dyeing 
referred to in the proposed measure has been determined by the Legisla- 
ture, upon reasonable grounds, to be one of that class of businesses which, 
in the interest of public health, public safety, public morals or public 
welfare, should be subject to regulation tending to safeguard the general 
interests of the community as a whole, under the exercise of the police 
power. Many kinds of businesses and occupations, the doing of which in 
the Commonwealth is regulated by statute, require the licensing of those 
engaged in such business by some public authority, and power to make 
reasonable rules and regulations to ensure the carrying on of licensed 
businesses in a manner not in conflict with such public interests has been 
delegated by the Legislature, under proper guiding enactments, to such 
authorities (see cases collected in VII Op. Atty. Gen. 164). If the pro- 
posed measure did no more than this with relation to the type of business 
which is the subject of this legislation, it would not be objectionable. 

However, the proposed measure goes far beyond such an exercise of 
the police power. Its obvious purpose is to control the business which is 
to be the subject of licensing in relation to many matters not reasonably 
connected with public health, safety, morals or welfare. Compliance with 
regulations concerning safety, labor, fire and health, made under other 
statutes by various departments and boards, is made a prerequisite for 
obtaining a license, but the specific control over the business provided for 
by this measure, in addition to the foregoing, is of entirely different char- 
acter, directed to the control of the business in question in fields unrelated 
to such public health, safety, morals and welfare. 

Moreover, this control is to be exercised by the appointive board created 
under the measure. The Legislature appears to completely abdicate its 
own police power and attempts to vest it, undirected and unlimited in 
scope, in this administrative tribunal. It purports to give to this tribunal, 
with relation to the type of dry cleaning and dyeing business referred to, 
power — 

1. "To supervise" the business and "to control" the work of the 
business within the Commonwealth. 

2. To designate, establish and maintain trading areas or zones and to 
enforce orders and rules relating thereto. 



r.D. 12. 71 

3. "To establish minimum standards of quality, of method and work- 
manship ... in each and every trading area or zone." 

4. "To investigate and regulate ... all matters pertaining to all 
1 Hiding areas or zones and to the dry cleaning and dyeing industry in the 
Commonwealth . ' ' 

5. "To investigate and regulate ... all matters pertaining to . . . 
the establishment of reasonable trade practices." 

Moreover, these extraordinary powers vested in the administrative 
board apply also to almost every form of activity connected with the dry 
cleaning business in any manner, such as the business of storing and 
dehvering dry cleaned articles and the business of advertising dry cleaning. 

It is true that the Legislature may grant to boards or administrative 
officials the authority, in the execution of a law, to make appropriate rules 
and regulations, to find facts and to exercise a limited discretion as to 
details; but such power is not authority to make law or to promulgate 
general rules of law but to apply a legislative rule to such specific situa- 
tions as they may be called upon to deal with. The power which is given 
to the board in the instant measure in the particular noted, which in 
effect embraces the entire operation of regulated business, is given without 
limitation and is broad enough to comprehend under the guise of making 
rules, regulations and orders what is in effect the power to make laws. 
This power to make laws is vested in the Legislature and cannot be sur- 
rendered or delegated by it to any other body. Wyeth v. Cambridge 
Board of Health, 200 Mass. 474, 481; Opinion of the Justices, 239 Mass. 
606, 610, 611; Noel v. People, 187 111. 587. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Disabled Veterans' Preference — Separation from the Service. 

Under the provisions of St. 1935, c. 408, the preference in employment 
formerly given disabled veterans when several workmen were neces- 
sarily suspended from a given piece of work has been withdrawn, and 
seniority preference substituted in the particular instances in said 
section. 

June 18, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion as to the effect upon the 
preference accorded disabled veterans by G. L. (Ter. Ed.) c. 31, § 23, 
produced by the amendment of said chapter 31 which added section 46G 
to the other sections of said chapter 31 through the amendment worked 
by St. 1935, c. 408. 

The last sentence of said G. L. (Ter. Ed.) c. 31, § 23, originally added to 
said section by St. 1922, c. 463, reads as follows: — 

"A disabled veteran shall be appointed and employed in preference to 
all other persons, including veterans." 

This provision has previously been construed by my predecessor in 
office to mean that disabled veterans were entitled to preference in em- 
ployment as well as to preference in classification and appointment, and 
that the effect of such preference in employment applied to continuation 
therein as well as to original selection. So that when by necessity for 
reducing the size of any group of civil service employees some were to be 



72 P.D. 12. 

dropped, disabled veterans were to be retained and others released from 
such employment first. Attorney General's Report, 1930, p. 69; ihid. 
1933, p. 70. 

With this view of the law as it stood before 1935 I am in agreement, 
and it would also follow from the same considerations that, when a group 
of employees were temporarily separated from the service from lack of 
sufficient work or other similar reason, by force of the mandatory provision 
of said section 23, disabled veterans among their number would be the 
first to re-enter employment when the work of the group was resumed. 

However, by enacting the amending statute, St. 1935, c. 408, the Legis- 
lature appears to have changed the law relative to such preference of 
disabled veterans. The new section of said chapter 31, inserted in 1935 
by said chapter 408 of the acts of that year, reads : — 

"If the separation from service of persons in the classified service 
becomes necessary from lack of work because of the season, because of 
lack of appropriations, or from any other temporary cause, they shall be 
suspended and re-employed according to their seniority in the service so 
that the oldest employees in point of service shall be retained the longest, 
and re-employed first and before new names are certified." 

This new law provides for suspension and re-employment of employees 
whose work is temporarily abandoned for certain necessary reasons, and 
requires that such suspension and re-employment shall be according to 
seniority in the service. In this respect it is completely incompatible with 
the provisions of said section 23 and in effect nullifies the provisions of 
said section 23 with relation to preference in employment of disabled 
veterans when such disabled veterans with others are temporarily sepa- 
rated from the service because "of lack of work" due to the season or to 
absence of appropriations or "from any other temporary cause." 

In so far as the type of suspensions or re-employments referred to in 
said section 46G is concerned, the Legislature has created an exception to 
the general rule relative to the preference to be accorded disabled veterans 
in appointment and employment. The Legislature enacted section 46G 
as an amendment to the civil service law as contained in G. L. (Ter. 
Ed.) c. 31, in which the requirements relative to disabled veterans' prefer- 
ence had long been embodied, and, since the provisions of this new section 
are in certain respects inconsistent with the older section, to the extent 
of such inconsistency the new section must be regarded as showing a legis- 
lative intent to create an exception to the rule of the older section. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Marriage — Five-day Law — Judges. 

A special judge of probate and a special justice of a district court have 
no authority to waive the requirements of the five-day law relative 
to marriages. 

June 24, 1936. 

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

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

"Has a special judge of probate or a special justice of a district court, 



P.D. 12. 73 

when sitting, authority under the provisions of G. L. (Ter. Ed.) c. 207, 
§ 30, to waive the requirement of the five-day law for marriage . . .?" 

G. L. (Ter. Ed.) c. 207, § 30, reads as follows: — 

"Upon application by both of the parties to an intended marriage, 
when both parties are residents of the commonwealth or both parties are 
non-residents, or upon application of the party residing within the com- 
monwealth when one of the parties is a resident and the other a non- 
resident, a judge of probate or a justice of a district court may, after 
hearing such evidence as is presented, grant a certificate stating that in 
his opinion it is expedient that the intended marriage be solemnized with- 
out delay. Upon presentation of such a certificate, or, in extraordinary 
or emergency cases when the death of either party is imminent, upon the 
authoritative request of a minister, clergyman, priest, rabbi or attending 
phj^sician, the clerk or registrar of the town where the notice of intention 
has been filed shall at once issue the certificate prescribed in section 
twenty-eight." 

The power to grant a certificate of expediency for the solemnization of 
a marriage without delay is vested by the Legislature not in any probate 
court or courts nor in any district court or courts as such, but the power to 
act is given to certain specifically designated magistrates, namely, the 
judges of probate and the justices of district courts. Had it been the 
intention of the Legislature to place this power in the hands of other 
judicial officers, as well as those mentioned, it would without doubt have 
set them forth and would have added the words a "special judge of pro- 
bate" or a "special justice of the district court" after the titles of the 
magistrates already named in an appropriate place in said section 30. 
It has not, however, done so. 

In the case of magistrates empowered to commit insane persons, where 
the authority is vested, as here, in designated judicial officers and not in 
courts, the General Court has specifically included a "special justice of 
a district court" with a "justice." Although special judges of probate 
and special justices of district courts have under the provisions of our 
laws authority to exercise the powers of the judge and the justice of a 
court, respectively, when holding court in place of the last-named judicial 
officers, there are no general provisions of law which by impUcation or 
otherwise endow these special judges and special justices with power to 
exercise the functions of such offices when, as here, the statute purports 
to make the incumbents of the offices of a judge of probate or of a justice 
of a district court the particular magistrates empowered with the authority 
to grant the certificate provided for by the statute. 

I therefore answer your question in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 



74 P.D. 12. 

Permits — Firearms — "Persons.'^ 

A permit to purchase or carry firearms may be granted only to an indi- 
vidual, and a permit must be obtained for each firearm purchased, 
under the provisions of G. L. (Ter. Ed.) c. 140, §§ 121-131. 

June 30, 1936. 
Hon. Paul G. Kirk, Commissioner of Public Safety. 
Dear Sir : — You have asked my opinion as follows : — 

"It frequently becomes necessary in the course of business for banking 
concerns, express companies, insurance companies and similar business 
concerns to purchase firearms for the use of their servants or agents. 

Will you kindly advise me as to the following : — 

(a) Whether or not such business concerns may secure a permit, under 
G. L. (Ter. Ed.) c. 140, § 131A, in the name of the firm, or must they 
secure a permit in the name of a person who may be a member of the 
business concern? 

(b) Whether or not such a permit must be obtained for the purchase of 
each firearm, or may a single permit to purchase be issued for a number 
of firearms?" 

The entire context of the provisions relative to licenses or permits to 
carry and to purchase or sell pistols, revolvers and machine guns, as 
embodied in G. L. (Ter. Ed.) c. 140, §§ 121-131, indicates that the Legis- 
lature did not intend that the words "person" or "persons," as used with 
relation to the purchaser or possessor of such firearms, who might receive 
a license to carry or a permit to buy, rent or lease should apply to a cor- 
poration, nor do they apply to a partnership or association as such. 

A license to carry a pistol or revolver or to possess a machine gun, 
under G. L. (Ter. Ed.) c. 140, § 131, as it now stands, may be issued only 
to an individual. A permit to purchase a pistol or revolver may be granted 
under the terms of section 131 A of said chapter 140 only to one capable of 
being licensed. No machine gun may be sold, rented or leased to a person 
who has not been licensed to possess the same, nor a pistol or revolver 
sold, rented or leased to a person who has not a permit to purchase the 
same, by the provisions of section 123 of said chapter 140. 

No change in the intent of the law is indicated by St. 1936, c. 302, which 
has not yet become effective, but the terms of the new section 131, which 
it substitutes for the section 131 now in force, follow those alread}^ in 
force, and by additional provisions, such as the form of the license to be 
issued, make even plainer a legislative intent to restrict the granting of 
each license to carry a pistol or revolver or to possess a machine gun to 
a single natural person. 

Furthermore, it is plain from the context of the said sections, including 
the amended section 131, that it was the intention of the Legislature that 
there must be a permit for each pistol or revolver purchased, rented or 
leased, and that it was not contemplated by the Legislature that the 
statute should authorize the purchase of more than one firearm by virtue 
of a single permit. The permit to purchase is described in section 131 A 
as "a permit to purchase, rent or lease a pistol or revolver," and in section 
123 it is provided, "Ninth; that upon a sale, rental or lease of a pistol 
or revolver the licensee under section one hundred and twenty-two" 
(i. e., the vendor) "shall take up such permit and shall endorse upon it the 



P.D. 12. 75 

time and place of said sale, rental or lease, and shall forthwith transmit 
the same to the commissioner ..." 

Accordingly, I answer your question (a) to the effect that a permit 
must be taken in the name of some individual qualified to receive a li- 
cense; and your question (6) I answer to the effect that a permit must 
be obtained for each firearm to be purchased. 

Very trulj^ yours, 

Paul A. Dever, Attorney General. 

Counties — Compensation of Special Justices — Reimbursements. 

The Commonwealth is not required to reimburse counties for compen- 
sation paid to special justices of district courts for holding sessions 
on Saturdays during the period in which a justice of their respective 
courts is sitting in the Superior Court, but the word "sitting" must 
be construed as referring to the actual holding of a daily court session. 

June 30, 1936. 
Hon. George E. jMurphy, Commissioner-Comptroller. 

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

"I would respectfully request your opinion as to whether counties 
should be reimbursed for compensation paid to special justices for serv- 
ices in holding sessions of a district court on Saturdays during the period 
in which the regular justice was sitting in the Superior Court." 

You also advise me that your practice has been not to reimburse coun- 
ties for compensation paid to "special justices" for holding sessions on 
Saturdays during the period in which a "justice" is sitting in the Superior 
Court. 

I am of the opinion that as the statutes now stand your practice is 
correct. 

A district court justice is not, under usual conditions, "sitting in the 
Superior Court" on Saturdays, within the meaning of those words as 
used in the governing statute, which reads, in so far as applicable, St. 
1923, c. 469, as amended by St. 1924, c. 485, § 4: — 

"The compensation of a special justice for services in holding sessions 
of a district court in place of a justice of a district court while sitting in 
the superior court as herein provided shall be paid by the county and shall 
not be deducted from the salary of the district court justice so sitting in 
the superior court, but shall be repaid to the county by the common- 
wealth." 

The foregoing statutory provision is explicit. The compensation of a 
special justice is to be paid by a county when such special justice holds 
sessions in place of a justice "while" the latter is "sitting in the Superior 
Court." The provision cannot be enlarged by administrative interpreta- 
tion. 

If it had been intended by the Legislature that justices of district courts 
were to be called into service in the Superior Court for the purpose of 
holding regular sittings of the Superior Court, as such sittings are described 
in G. L. (Ter. Ed.) c. 212, § 14, and c. 213, § 6, a different conclusion might 
be reached. The Legislature, however, has by the terms of said St. 1923, 
c. 469, as amended, manifested an intent that such justices shall not be 



76 P.D. 12. 

called into the Superior Court for such purpose but merely for the trial of 
certain designated criminal cases less than felonies, at the specific request 
of the chief justice. The Legislature has further indicated its intent in 
this respect by providing in section 4 of said chapter 469, as amended by 
St. 1924, c. 485, that the pay of district court justices when sitting in the 
Superior Court shall, in so far as the work in that court is concerned, be 
upon a per diem basis, "while so sitting" for "each court day." It is 
impossible, therefore, even by some form of legal fiction, to regard a dis- 
trict court justice as sitting in the Superior Court continuously through- 
out a "sitting" of that court when in fact he only presides therein upon 
a particular case or cases and is compensated therefor upon a per diem 
basis. 

Accordingly, in the phrases of said section 4, as amended, above quoted, 
the word "sitting" must be construed as referring to the actual holding of 
a daily court session and not as applicable to the whole period of a tech- 
nical statutory sitting of the Superior Court. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Disabled Veteran — Proof of Disability. 

It is the duty of the Civil Service Commission to determine, in each case, 
as a matter of fact upon the proof presented, whether a particular 
veteran is disabled with a continuing disability. 

The Commission may not require the veteran to offer proof of his con- 
tinuing disability, by means of a certificate of a physician, if he has 
already proved a continuing disability to their satisfaction in some 
other way, and has proved that it has occurred in the line of duty by 
the Federal records or certificate of pension or compensation, as 
specified in G. L. (Ter. Ed.) c. 31, § 25. 

July 10, 1936. 

Commissioners of Civil Service. 

Gentlemen: — You have sent me the following communication: — 

"The right of the Board to rule on disabled veterans' preference in ac- 
cordance with the Federal government rules has been questioned. The 
Massachusetts veterans' preference act was formulated after and around 
the Federal veteran preference law. Under those acts the Board, up to 
date, has ruled in conformit}^ with the Federal government in recognizing 
only such disabled veterans as had at least ten per cent disability or 
handicap. 

The Commissioners therefore request your official opinion on the two 
following questions : — 

1. If on the evidence presented they are not satisfied that an applicant 
is entitled to disability preference under G. L. (Ter. Ed.) c. 31, § 23, have 
they the right to require him to present further evidence in the form of a 
certificate from a physician, approved by them, that he is substantially 
handicapped for industrial life? 

2. As a general proposition, in view of the words found beginning with 
the eighth fine in section 23 . . ., 'who shall present proof satisfactory 
to the commissioner that such disability was received in line of duty . . . 
and is a continuing disability,' has not the Commissioner, and on appeal 
have not the Commissioners, full discretion to grant or refuse the prefer- 
ence?" 



1 



P.D. 12. 77 

In an opinion which I sent you on March 18, 1936 {ante, p. 49), I re- 
viewed the provisions of G. L. (Ter. Ed.) c. 31, § 23, with relation to 
disabk^d veterans, and indicated the various points upon which a veteran 
claiming disability was required to present proof to you, — first, as to 
the existence and continuing nature of such disability itself; and second, 
as to the fact that such disability was actually incurred in the line of duty. 
In that opinion I pointed out that there were two methods by which the 
fact that the disability was incurred in the line of duty might be proved; 
that is, either by certain Federal records or certificates of pension or com- 
pensation, and in the absence of those, by a physician's certificate that he 
(the veteran) "is substantially handicapped for industrial life through 
injur}^ or illness," and other proof that such handicap was received in the 
line of duty and is a continuing handicap. 

I made plain that the second mode of proof relative to the receipt of 
the disability "in line of duty" was to be required only in the absence of 
the first form of proof by records or certificates. From this it is clear that 
our law does not require that the veteran, to be considered disabled, 
must necessarily be in receipt of a Federal pension or compensation. 

In said opinion I also explained, in the last sentence of the fourth para- 
graph thereof, that it was necessary that the applicant should present 
proof that "he was disabled," at the time of application. I gather that 
your present request, in effect, desires my opinion as to v/hat constitutes 
"disability" under said section 23, and what evidence thereof may be 
required by your Board as proof of the same. 

The statute itself does not define the word "disability" in exact terms. 
It does not limit its meaning to any precise percentage of lost ability nor 
specifically adopt as a minimum standard that per cent of disability which 
the Federal authorities may use in determining for their own purposes, 
either of compensation or pension, or otherwise, when a veteran is to be 
classed as disabled. 

It is for your Commission to determine in each case as a matter of fact 
whether, upon the proof presented, you are satisfied, in the exercise of a 
sound judgment, that a particular veteran is "disabled" with a "con- 
tinuing disability." 

The veteran may present evidence of disability in a variety of ways, 
and, if not satisfied that he has proved his contention as to disability by 
evidence offered, the Commission may permit him to offer other evidence. 
The Commission may not require him to offer proof by means of a certifi- 
cate of a physician if he has already proved a continuing disability in 
some other way, and has proved that it was incurred in fine of duty by 
the Federal records or certificate of pension or compensation specified in 
the statute. 

As to what constitutes "disability", it would seem from the context 
of said section 23 as a whole that such impairment as would warrant a 
Federal pension or compensation was ample, and that even if not sufficient 
to gain such Federal award, if it substantially handicapped the veteran 
for industrial life, it would be sufficient. 

The Commission is not vested by the statute with "discretion" in 
determining whether a veteran is "disabled" with a continuing disability, 
but the statute does vest the Commission with authority to make a deter- 
mination, in the exercise of sound judgment upon the proofs submitted 
to it, as to the existence of a "disability" such as would appear to be in- 



78 P.D. 12. 

tended by the Legislature from the terms used in said section 23, following 
such principles of law as I have indicated. 

I think that the foregoing considerations fully answer the questions in 
your communication. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Disabled Veteran — Preference. 

The provisions of a civil service rule cannot be so enforced as to nullify 
the preference given to a disabled veteran by G. L. (Ter. Ed.) c. 31, 
§23. 

July 10, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion in regard to preference to 
be given to a disabled veteran in appointment to a position which might 
be filled by promotion of an employee. 

The provisions of Civil Service Rule 28, made under the authority of 
G. L. (Ter. Ed.) c. 31, § 3(D), with relation to promotions, cannot be so 
enforced as to nullify the explicit provision of G. L. (Ter. Ed.) c. 31, § 23, 
as amended by St. 1922, c. 463: "A disabled veteran shall be appointed 
and employed in preference to all other persons, including veterans." 

Accordingly, if you have an established list for the position in question, 
at the head of which is a disabled veteran, he must have preference in 
appointment and employment to such position notwithstanding that 
there is an employee who might be eligible for promotion to the position. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Probationary Period — Permanent Intermittent Employees. 

July 14, 1936. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You have asked my opinion regarding the extent of the 
probationary period of permanent intermittent employees, with particu- 
lar relation to the case of a man who was formerly a permanent inter- 
mittent janitor in the Everett school department. 

It is my opinion that a probationary period such as you refer to ceases 
at the end of six months from the date of the incumbent's appointment, 
irrespective of the number of days or weeks during such six months' 
period when the appointee has actually been called upon to perform his 
duties. 

The practice which you advise me your division has adopted in the 
past, of treating "the probationary period of permanent intermittent 
employees as ending six months from the date of original appointment 
and not after six months of actual service," is a correct one. Perhaps it 
would be more accurate if the word "work" was substituted for the word 
"service" in the sentence just quoted from your letter. But the practice 
which you have followed is, as I have said, undoubtedly correct. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12, 79 

Lord's Day — Renting of Bicycles — Use of Bicycles. 

In 1936, the renting of bicycles for hire on the Lord's Day was not 
lawful. 

The ordinary use of bicycles does not come within the prohibition rela- 
tive to holding a "game, sport, play or public diversion" on such 
day. 

July 14, 1936. 

Hon. Paul G. Kirk, Commissioner of Public Safety. 

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

"1. G. L. (Ter. Ed.) c. 136, § 5, prohibits the keeping open of shops 
and doing certain work on the Lord's Day. Section 6 of the same chap- 
ter, as amended by section 6 of St. 1934, c. 373, limits the operation of 
section 5 and contains certain exemptions from the application of the law. 

2. (a) Is the letting of bicycles for hire prohibited by law on the Lord's 
Day? 

(6) Is the use of bicycles on the Lord's Day within the meaning of 
'game, sport, play or public diversion,' as contained in section 2 of said 
chapter 136, as amended by St. 1935, c. 78?" 

1. I answer your first question in the affirmative. 

2. I answer your second question to the effect that there may be such 
a use of bicycles as will constitute "a game" or "a sport" or "a public 
diversion"; as, for example, in racing, in a theatrical entertainment, in 
a circus or acrobatic performance; but the ordinary and customary use 
of bicycles does not come within the meaning of the quoted words and 
is not prohibited on the Lord's Day, by a reasonable construction of any 
of the provisions of the applicable statutes. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Charitable Institutions — Rule. 

July 21, 1936. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You request an opinion as to the meaning of the words 
"charitable institutions," as used in the rules made by your department 
in Civil Service Rule 4, section 1, class 1. I am of the opinion that they 
are employed with a broad signification and not in a technical sense. 
Inasmuch as they relate to institutions carried on by governmental agen- 
cies, they would appear to relate at least to such of those institutions as 
give free aid to the indigent by way of food and lodging or hospitalization. 

In an opinion to the then Commissioner of Civil Service, under date of 
October 13, 1932 (Attorney General's Report, 1932, p. 104), a former 
Attorney General held in substance that a municipal "infirmary" "for 
persons in need" came within the scope of the words "charitable institu- 
tions" as used in the said rule. In that opinion I concur. (AJso see the 
opinion of the Attorney General rendered your department on February 
2, 1933; Attorney General's Report, 1933, p. 39.) 

The Attorney General does not determine questions of fact, and I have 
no information relative to the "Fall River Almshouse," to which you refer 
in your letter, to enable me to pass upon its status. Having in mind the 



80 P.D. 12. 

principles of law applicable to the interpretation of your rule which I have 
indicated, you can yourself decide the question which has been raised 
relative to such almshouse and its superintendent, when you have deter- 
mined what are the actual facts concerning its nature, functions and man- 
ner of operation. 

Very truly yours, 

Paul A. Dever, Attorney General. ^ 

Municipality — Sewage Disposal Works — Approval — Permit. 

The Town of Framingham is authorized by St. 1887, c. 403, to construct 
sewage disposal works in accordance with plans approved by the 
State Board of Health, and it does not require a permit from the 
building inspector of the town of Natick to proceed with such con- 
struction as lies within the latter town. 

Sept. 3, 1936. 

Dr. G. W. Anderson, Deputy Commissioner of Public Health. 

Dear Sir: — You have asked my opinion "as to whether or not the 
town of Framingham with the approval of this department may construct 
sewage disposal works in accordance with the plans approved by the 
department under St. 1887, c. 403, without obtaining a permit from the 
town of Natick through its building inspector." 

I am advised that the town of Framingham duly accepted the provi- 
sions of said St. 1887, c. 403, entitled "An Act to authorize the town of 
Framingham to construct and maintain a system of sewage disposal." 
Under the provisions of this statute the town of Framingham was author- 
ized to construct and maintain a system of sewage disposal for such town 
and was given "full power to take, by purchase or otherwise, any lands, 
water rights, rights of way or easements in the towns of Framingham and 
Natick, or either of them, necessary for the establishment of such system 
of sewage disposal and the connections therewith," with a limitation to a 
certain designated area in both towns. 

It was further provided that the proposed systems and locations should 
be approved by the State Board of Health after notice to all parties inter- 
ested, including the selectmen of the town of Natick, and a hearing, with 
power vested in the board to reject any such proposed system or to amend 
the same or modify it, and approve it either as originally set up or amended. 

The town of Framingham was further given authority under section 5 
of said chapter, with relation to acts necessary to carry out the purposes 
of the statute, to perform necessary portions of the work in the town of 
Natick as follows: "enter upon and dig up such street, highway or other 
way for the purpose of laying, maintaining and repairing any such sewers 
and drains; and may enter upon and dig up any private land, and do any 
other thing, necessary or proper, in executing the purposes of this act." 

I am informed by you that your Board has finally approved the loca- 
tion and system for this sewerage plant, which I assume provides for the 
erection of sewage disposal works necessary to effectuate the working of 
the system of sewage disposal, and so to carry out the intent of the act 
upon lands which have been taken for the purpose in the town of Natick. 

It would seem plain, from the context of the statute as a whole and 
more especially from those portions which I have stated above, that the 
erection of buildings for sewage disposal works was an essential part of 
the system authorized by the Legislature, and that their erection upon 



P.D. 12. 81 

land within the specified area in the town of Natick was in effect inci- 
dental to the power to take land in Natick for the purpose of the system. 
If such necessary sewage disposal works could not be erected upon land 
so taken, the purpose and effect of such takings would be entirely lost and 
the purposes of the statute could not be accomplished. 

The Legislature has set up and constituted the State Board of Health 
as an agency for passing upon the propriety of the system and location of 
the same, and in this respect the Board acts as an agent of the Common- 
wealth. Full opportunity is provided by the act for hearing of any objec- 
tions which might be raised by the town of Natick to the erection of 
such sewage disposal works contemplated by the system and location. 
The Board, as an agency of the Commonwealth, having passed upon the 
propriety of their erection as part of the system and authorized the same 
by its approval, must by intendment of the Legislature be the final and 
controlling authority in this respect, and its decisions and approval can- 
not be restrained by any action or failure to act upon the part of the 
municipal authorities of the town of Natick. 

In this special act the Legislature has provided a mode for the erection 
of essential works connected with this sewer system which does not require 
to be further approved by the building inspectors of the town of Natick, 
and may be erected without the necessity for obtaining any permit from 
them. The entire scheme relative to the construction of this system of 
sewage disposal under this special act shows a manifest intent on the part 
of the Legislature that the general provisions of what is now G. L. (Ter. 
Ed.) c. 149, with relation to local inspection of buildings and other local 
ordinances connected with their erection, should not be applicable to the 
construction of this particular sewage system, in which the power of 
approval is vested in the State Board of Health. 

The situation is analogous to cases in which authority has been given to 
public utility companies to exercise certain rights in municipalities upon 
the granting by constituted agencies of the Commonwealth, as incidental 
to the general scheme authorized by the Legislature for the expansion 
of such public utihties, in which our courts have said that authoriza- 
tion by municipal authorities was not necessary. Springfield v. Spring- 
field St. Ry. Co., 182 Mass. 41; Cheney v. Barker, 198 Mass. 356; Board 
of Survey v. Bay State St. Ry. Co., 224 Mass. 463; Fall River v. Public Serv- 
ice Commissioners, 228 Mass. 575; Cambridge v. Boston Elevated Ry. 
Co., 241 Mass. 374. See also, Frelinghuysen v. Morristown, 101 A. L. R. 
432; 76 N. J. L. 271. 

Accordingly, I answer your question to the effect that the town of 
Framingham may construct sewage disposal works in accordance with 
the plans approved by the said Board without obtaining a permit from 
the building inspector of the town of Natick. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Savings Bank Life Insurance — Agencies — Co-operative Banks. 

Sept. 9, 1936. 

JuDD Dewey, Esq., Deputy Commissioner, Savings Bank Life Insurance. 

Dear Sir : — You have asked my opinion in effect as to whether the 
trustees of savings and insurance banks, under the pro\isions of G. L. 



82 P.D. 12. 

(Ter. Ed.) c. 178, § 13, may properly establish co-operative banks as their 
agencies. 

I am of the opinion that they may. 

There is nothing connected with the duties of these agencies, as described 
in general terms in said section 13 and as more particularly outlined in 
your communication, which can well be said to be outside the implied 
powers of co-operative banks operating under G. L. (Ter. Ed.) c. 1<70. 
The efficient carrying on of savings bank life insurance is a well settled, 
policy of this Commonwealth, and the duties of agencies of such savings 
banks are such as seem naturally to fall within the scope of the implied 
authority of co-operative banks, as well as of various other types of finan- 
cial institutions and business corporations, which I am advised have so 
functioned for some time. 

The words giving authority to savings banks to act in this capacity in 
said section 13 do not appear as there used to denote any prohibition upon 
other banking institutions from so acting. There is nothing in the duties 
devolving upon such an agency, as I have said, which would appear to be 
inconsistent with the carrying on of its ordinary business by a co-operative 
bank and much which would appear to be directly connected with a 
reasonable service to those with whom it transacts business which in many 
instances may be of direct benefit to the bank itself. The approval by the 
Commissioner of Banks and the Commissioner of Insurance necessary to 
the appointment of such an agency is an adequate protection against pos- 
sible abuse of the appointing power in this respect. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Housing Corpofatiori — Eminent Domain — Right to Mortgage. 

Sept. 9, 1936. 
State Board of Housing. 

Gentlemen: — You request my opinion as to whether a corporation 
formed for housing purposes, under the provisions of G. L. (Ter. Ed.) c. 121, 
has a right to mortgage land acquired by it through the e.xercise of the 
power to take by eminent domain or otherwise. I am of the opinion that 
such a corporation has the right to mortgage and that this right is not in- 
consistent with its power to take land by eminent domain. 

G. L. (Ter. Ed.) c. 121, as amended, grants to such a corporation the 
power to take by eminent domain land for specified housing purposes, and 
also the power to sell such lands in accordance with rules and regulations 
of your Board. 

In said chapter 121, as amended, it is also provided that the laws rela- 
tive to business corporations shall apply to such housing corporations in so 
far as they are not inconsistent with other provisions of said chapter 121 
applicable to them. 

As business corporations have a right by our law to mortgage land to 
further the purposes of the corporation, this provision of law, by force of 
the terms of said chapter 121, becomes applicable to the housing corpora- 
tion. Since such law is by the terms of chapter 121 made applicable to 
housing corporations (section 26E), failure to mention the power to mort- 
gage in the enumeration of powers conferred upon housing corporations in 



P.D. 12. 83 

section 26F of said chapter 121 does not have the effect of excluding such 
power to mortgage from the general authority of the housing corporation. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Airports — Municipal Regulations — Refusal of Use. 

Sept. 11, 1936. 

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

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

"Can one or more towns owning a municipal airport refuse the use of 
that airport to persons or corporations who refuse to comply with restric- 
tions imposed by the town or towns, — 

(1) Against flights over the residential parts of such town or towns; (2) 
against flights from such airport during certain hours (e.g., late at night, or 
on Sunday mornings during church services); and (3) against any other 
practices which ma}' be found by experience to interfere unreasonably with 
the peace or safety of the residents of the town or towns." 

The statutes of the Commonwealth relative to airports, which embody 
G. L. (Ter. Ed.) c. 90, as amended, do not vest municipal authorities with 
the power to refuse the use of airports to those who do not comply with 
restrictions which such municipalities have placed upon such use. 

Penalties for violation of regulations made by municipalities concerning 
the use of landing places for aircraft, under the provisions of G. L. (Ter. 
Ed.) c. 90, § 57, are provided by section 59 of said chapter, which penal- 
ties, under section 60 of said chapter, may be enforced by injunctions or 
decrees made in equity. 

Prosecution for violation of municipal rules and regulations under the 
sections noted appears to be the sole method by which municipalities may 
enforce the reasonable orders which they have made. Of course, the power 
vested in the Registrar of Motor Vehicles to suspend or revoke licenses or 
registration, under the provisions of said chapter 90, when exercised in 
co-operation with municipalities, affords another check upon proper prac- 
tices by aviators. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Pardons — Fine and Imprisonment — Board of Parole. 

A prisoner who is held upon a sentence calling both for imprisonment 
and the payment of a fine and who is given a pardon may not be 
further held in confinement even if the fine is not paid. 

Sept. 12, 1936. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You request my opinion on the following facts : On 
February 21, 1934, a defendant in a criminal case, upon conviction of the 
crime of manslaughter, was sentenced to the house of correction at Cam- 
bridge for a period of two and one half years, and in addition to the sen- 
tence of imprisonment was ordered by the court, as a part of the sentence 



84 P.D. 12. 

for the same offence, to pay a fine of $200. The defendant entered upon 
the execution of that part of the sentence calhng for imprisonment but 
has never paid the fine of $200. On November 27, 1935, the Governor, 
with the advice and consent of the Executive Council, granted a pardon 
to this defendant in the following terms : — 

"Now, know ye, that, upon full consideration of the premises, we do 
hereby pardon the said offence and release him, the said (naming the de- 
fendant), from any further imprisonment under the sentence aforesaid, 
and do order that he be forthwith discharged accordingly, subject to such 
terms and conditions as shall be prescribed by the Commissioner of Cor- 
rection and the Board of Parole." 

You state in your communication that "this prisoner's term sentence 
expired August 20, 1936." You ask the following question: "If the fine 
is not paid should he remain on parole to work out the fine or does the 
pardon automatically wipe it out?" 

In Kennedy's Case, 135 Mass. 48, 51, it was stated by the court: — 

"The power of pardoning offences, as conferred on the executive author- 
ity by the Constitution of the Commonwealth, is exceedingly comprehen- 
sive, . . . This power includes that of mitigating the sentence, as by 
diminishing its duration where imprisonment has been ordered, or by 
commutation, so that a milder punishment is inflicted. It includes also 
the right to grant conditional pardons, either to take effect upon the per- 
formance of some precedent condition, or to become void by a failure to 
comply with some subsequent condition." Opinion of the Justices, 210 
Mass. 609; Juggins v. Executive Council, 257 Mass. 386. 

The pardon granted the defendant in the instance under inquiry was 
a conditional pardon. As expressed in its terms it was "subject to such 
terms and conditions as shall be prescribed by the Commissioner of Cor- 
rection and the Board of Parole." The term of the sentence of imprison- 
ment expired by operation of law on August 20, 1936, the defendant 
being released by an act of executive clemency. So much of the terms of 
the pardon as is expressed by the words "subject to such terms and con- 
ditions as shall be prescribed by the Commissioner of Correction and the 
Board of Parole" has no relation to the payment or nonpayment of the 
fine of $200 separate and apart from the portion of the sentence calling 
for imprisonment. The conditional pardon granted was for "the said 
offence." The act of executive clemency clearly contemplates the entire 
sentence of the court, the fine as well as the term of imprisonment. There 
appears to have been no violation of the terms and conditions imposed 
upon the defendant by the Commissioner of Correction and the Board of 
Parole in pursuance of the terms of the conditional pardon. 

In relation, therefore, to your question, "If the fine is not paid should 
he remain on parole to work out the fine or does the pardon automatically 
wipe it out," my answer is in the negative as to the first part of the question 
and in the affirmative as to the second part. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 85 

Teachers' Retirement — Application — Withdrawal — Rules. 

An application for retirement by a teacher becomes effective and binding 
regardless of any affirmative act on the part of the Teachers' Re- 
tirement Board. 

Sept. 14, 1936. 

Hon. James G. Reardon, Commissioner of Education. 

Dear Sir: — You seek my opinion in relation to the following state 
of facts: On July 23, 1936, a woman schoolteacher in the city of Holyoke 
wrote to the Teachers' Retirement Board, asking information as to what 
her retirement allowance would be if she retired on September 21, 1936. 
On July 24th the secretary of the Teachers' Retirement Board wrote her 
a comnmnication enclosing an application blank for retirement and stating 
what her retirement allowance would be. The secretary suggested in his 
communication that, if she definitely decided to retire, it would be to her 
advantage to apply for retirement to take effect at once so that she could 
get retirement allowance at the earliest possible date. Under date of 
August 3, 1936, she prepared the written application for retirement, set- 
ting forth therein August 10, 1936, as the effective date of retirement. 
This written application was received at the office of the Teachers' Re- 
tirement Board on August 5, 1936. Its receipt was acknowledged in 
writing by the secretary of the Board, who at the same time forwarded 
to the applicant a blank upon which she was requested to indicate her 
choice of annuity. In this communication the secretary called her atten- 
tion to the fact that the retirement would take effect on the date she 
designated in her application, provided her option blank as to annuity 
was received by that time. On August 10, 1936, the Teachers' Retirement 
Board received the option blank, properly executed, in which she set forth 
her choice as to annuity. The receipt of this blank was acknowledged 
by the secretary. On August 15, 1936, the superintendent of schools of 
Holyoke communicated the information to the secretary of the Teachers' 
Retirement Board that the teacher in question was in his office and had 
expressed her intention of withdrawing her application for retirement. 
The secretary informed the superintendent of schools that, the retirement 
of this teacher having taken effect on August 10, 1936, there was no vahd 
ground upon which she could be permitted to withdraw her application. 
The teacher in question was born on May 21, 1874. She assigns as a 
reason for reconsideration of her purpose to retire that she has conferred 
with her physician and he advises her against retirement. 

There has been no meeting of the Teachers' Retirement Board since a 
time antedating the receipt at the office of the Board of this teacher's 
application for retirement. 

It is provided by G. L. (Ter. Ed.) c. 32, § 10 (1), that any member of the 
Teachers' Retirement Association "shall, on written apphcation to the 
board, be retired from service in the public schools on attaining the age 
of sixty, or at any time thereafter ..." The teacher in question was 
born on Mav 21, 1874, and is therefore in her sixty-third year. 

Under G.^L. (Ter. Ed.) c. 32, § 8 (2), the Teachers' Retirement Board 
is authorized to "make by-laws and regulations consistent with law." 
Under this provision the Teachers' Retirement Board has adopted rules, 
of which rule numbered 3 provides that "voluntary retirement under 
paragraph (1) of section 10 shall take effect on the date designated by the 



86 P.D. 12. 

member." It was said by one of my predecessors, in an opinion rendered 
to the Commissioner of Education, that — 

"Nowhere in the law as it existed prior to the General Laws is to be 
found any further requirement of action by the retirement board to make 
retirement effective. The approval of the board was a condition prece- 
dent to retirement for disability; but retirement at age seventy was com- 
pelled by the direct force of the statute, and retirement at age sixty \^as 
a right of the member which his choice alone sufficed to put into operation." 

That opinion was rendered on June 15, 1926, and there has been no 
statutory provision enacted in the meantime to justify a contrary opinion. 
See VIII Op. Atty. Gen. 120. 

In the instant case the application of the teacher for retirement was 
received by the Teachers' Retirement Board on August 5, 1936, and be- 
came effective as of August 10, 1936. While the statutes make provision 
for reinstatement of persons under sixty years of age who have been re- 
tired because of disability, where the disability has been removed, there is 
no provision in the law for the reinstatement in the teaching service of 
persons who have retired under G. L. (Ter. Ed.) c. 32, § 10 (1). 

The teacher in question, having attained an age in excess of sixty years, 
put her retirement from the teaching service into operation by her own 
voluntary act. This was an election made upon her own responsibility. 
It was her own choice to exercise her right to retire under the provisions 
of law. She had a right to exercise her choice to retire and to have her 
election in this respect become valid and binding, regardless of any affirm- 
ative act or approval on the part of the Teachers' Retirement Board. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Water Supply Commission — Contract — Extension 

— Invalidity. 

Sept. 22, 1936. 

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

Sir: — Pursuant to your oral request of September 4, 1936, for my 
opinion relative to the validity of the action taken by the MetropoHtan 
District Water Supply Commission on August 21, 1936, purporting to 
authorize the performance of certain work by Cenedella & Co. and by 
The Two Companies, Inc., for the construction of additional water sup- 
ply in the valley of the Ware River and its tributaries, I herein report the 
facts, together with my conclusions of law. 

Ordinarily, a State department seeking an official opinion from me 
furnishes the facts at the time the request is made, and then it becomes 
my duty to determine the law applicable to such facts. In the present 
instance, however, no facts were supplied by you, and, consequently, it 
became necessary to determine the facts and then to apply the correct 
governing principles of law. 

Immediately following your request, I conferred at length with the 
Commission, its chief engineer and its secretary, but there was such 
great diversity between them upon nearly every essential circumstance 
and so many different opinions expressed upon many of the major aspects 
of the subject matter that it was impossible for me to determine with 
any degree of accuracy the ultimate facts. The Commission was not in 



P.D. 12. 87 

accord. No one upon whom was imposed the solemn obhgation of deter- 
mining the propriety of the conduct of this public board, purporting in 
this instance to expend more than five hundred thousand dollars of public 
funds, could reach any fair, correct or just decision upon the conflicting 
claims and contentions made by the various members of the Commission. 
It therefore became necessary to have recourse to some other method in 
an attempt to secure the material facts essential to a proper decision of 
the question submitted to me. Public hearings were therefore held, at 
which each and everj^ citizen who had any knowledge whatever of any of 
the facts involved was given an opportunity to testify and aid in the in- 
vestigation. Each witness was sworn and, at the conclusion of his testi- 
mony, was permitted to state any additional facts which he believed were 
important in assisting me in arriving at the proper conclusion. In all 
there were five public hearings. 

The Metropolitan District Water Supply Commission, hereinafter 
called the Commission, was created by St. 1926, c. 375, for the purpose of 
securing an additional water supply for the needs of cities and towns 
comprising the Metropolitan Water District. The scope of the original 
act has been extended from time to time, and the work included therein 
was undertaken soon after the creation of the Commission and has since 
continued. To carry out the extensive program entrusted to it, the 
Commission is authorized, subject to the approval of the Governor and 
Council, to expend the sum of $65,000,000. Including contracts already 
made, approximately $40,000,000 has already been expended by this 
Commission. The board consists of a chairman, Eugene C. Hultman, 
and two associate commissioners, Thomas D. Lavelle and Edward J. 
Kelley. Mr. Kelley became a member on August 12, 1936, succeeding 
Charles M. Davenport, who had been a commissioner for nearly ten 
years. The meeting of August 21, 1936, was the first meeting of the 
Commission which was attended by Associate Commissioner Edward J. 
Kelley. 

The present inquir>^ is confined to a finding of the essential facts requi- 
site for the determination of legal liability arising from the passage of a 
vote on August 21, 1936, by a majority of the Commission, allegedly 
authorizing The Two Companies, Inc., to do certain earth and rock exca- 
vation, and a second vote on the same date by the same members purport- 
ing to em^power Cenedella & Co. to gravel cover a certain fiowage area 
and to build an access road to shaft 12. 

The Tw^o Companies, Inc. 

Early in 1935, the Commission advertised for proposals for bids for the 
construction of the foundation of the main dam of the Quabbin Reservoir. 
These proposals set forth thirty different items comprising the furnishing 
of labor and the supplying of material for the complete performance of 
the proposed contract. Opposite each item was set the approximate 
quantity of work to be done of the character described in that specific 
item, and a unit price was set on each and every one of the aforesaid 
items. Upon this basis, the joint bid of C. J. ]\laney Company, Inc., and 
B. Perini & Sons, Inc., amounting to $1,330,765, was the lowest, and, on 
May 15, 1935, they executed a written contract with the Commission for 
the performance of this work. This contract was numbered 38, and was 
usually referred to under that designation. These two corporations as- 
signed their interest in this contract to a new corporation, The Two 



88 P.D. 12. 

Companies, Inc., which was owned and controlled by those interested in 
the aforesaid two corporations. The assignment was assented to by the 
surety company, which agreed to continue bound upon its bond given in 
accordance with Contract 38. The Commission also assented to this 
assignment. No rights of the Commission were impaired or affected 
thereby and nothing in the present controversy turns upon this point. 
This new company is hereinafter referred to as the contractor. ^ 

The rate of compensation to be paid the contractor for the full per- 
formance of the work included within this contract was provided in 
article XXIII. A schedule comprising the identical thirty items in the 
proposal submitted by the contractor was expressly set out in detail in 
this article, together with the unit price submitted in the bid. The article 
also contained an additional item permitting the payment for extra work 
upon a cost plus basis. 

An examination of the items contained in this Contract 38, referring to 
earth excavation and to rock excavation, is necessary in order to under- 
stand the events which led up to the taking of the aforesaid votes, and 
then to determine the sufficiency of the votes in the light of all the sur- 
rounding circumstances. 

Item 2, "earth excavation in open cut," the approximate quantity of 
which was stated as 230,000 cubic yards, was to be done by the conti-actor 
at the rate of sixty-five cents per cubic yard. This excavated material, 
if found suitable for use as "consohdated pervious embankment," as de- 
fined in item 7, was to be so used, and for placing this excavated material 
in the embankment, the contractor was entitled, under the last-mentioned 
item, to compensation at the rate of five cents per cubic yard. If, how- 
ever, it was found that the material excavated by it under item 2 was 
proper to be used for "rolled impervious embankment in core" or "rolled 
impervious embankment not in core" under item 9, then it could use the 
excavated material in either of the last two mentioned embankments, 
and, in either case, was to receive therefor the sum of sixty cents per cubic 
yard, as is specifically provided for under items 8 and 9. The principal 
work to be performed by the contractor under the contract in question 
was the building of the foundation walls for the main dam, together with 
the necessary foundation embankments or grading. 

There is no dispute that the contractor has substantially performed 
the work originally included in Contract 38, and has finished the same 
far ahead of the date first thought necessary for its completion. Neither 
is there any dispute that the work has been well and satisfactorily done 
in compliance with the terms of the contract, and that the contractor is 
being paid at the times, at the rates and in the amounts prescribed in the 
contract. 

The contractor had made such rapid progress in the performance of 
its original contract that unless more work could be secured it would be 
required to remove its equipment and to discharge its employees. Certain 
public officials were pressing for the employment of all available labor. 
The Commission was apparently partial to the suggestion of these officials 
and co-operated and assisted in providing employment upon as large a scale 
as was consistent with the orderly development of this large undertaking. 

The contractor, soon after it had its original work well under construc- 
tion, began to request the Commission for additional work, and, as time 
went along, became more persistent, and finally succeeded, as will here- 
inafter appear, in securing such additional work. 



P.D. 12. 89 

On April 29, 1936, Frank E. Winsor, chief engineer of the Metropolitan 
District Water Supply Commission, wrote the Commission to the effect 
that the contractor would be willing under suitable items of Contract 
No. 38 to construct a finished bituminous road leading from the Ware- 
Belchertown road to the site of the proposed administration buildings, 
and also a road leading from the Ware-Belchertown road to the spillway 
channel, the former road to be a bituminous macadam, and the latter a 
gravel access road. The Commission was further informed by the engi- 
neer that the contractor was also willing, under suitable items of Contract 
No. 38, to "expose the material in the proposed borrow pits, for the build- 
ing of the embankment of the main dam, by digging shovel cuts in the 
prospective borrow areas." 

On April 30, 1936, the Commission duly voted to authorize the chief 
engineer to include the work mentioned in the preceding letter, — the 
construction of the two roads and the performance of the exploration work 
of materials for the main dam. Thereupon, the contractor undertook 
and fully performed the work included in this vote, the contractor and 
the Commission both believing that there were appropriate articles in 
Contract No. 38 which would fix the price to be paid for the perform- 
ance of the work included in the vote. No written order was ever given 
to the contractor by the chief engineer for the performance of this work, 
and it never received any written communication relative thereto from 
the Commission. 

The manner in which this additional work was authorized sheds some 
light upon the practice adopted by the Commission in granting extra work 
on the project in question. The performance, however, of this additional 
work b}^ the contractor is important, as the contractor claims that under 
the vote of August 21, 1936, it was entitled to charge $7.50 per cubic yard 
for rock excavated, as shown under item 4 of Contract No. 38, and con- 
tended that that was the rate at which it was paid for rock excavation per- 
formed in this road construction work. This contention of the contractor 
was discussed at a meeting of the Commission on August 28, 1936, at which 
time the Commission and its chief engineer apparently agreed with the 
contractor's contention that it had been paid at the aforesaid rate for 
rock excavation on the original contract. Thereafter, the Commission in- 
quired to see if such a contention was well founded, and subsequently 
learned that the contractor had been paid for the construction of these 
two roads, excepting only for crushed rock, for bituminous material used 
for surfacing the road, for concrete work and for rock excavation. 

Under date of September 2, 1936, the resident engineer wrote the chief 
engineer, stating the quantities of concrete work and rock excavation fur- 
nished by the contractor in these two road jobs. The chief engineer de- 
cided that both of these articles came under section 31, and therefore 
dealt with each as a cost plus item, and thereby allowed for the concrete 
work the sum of $1,137.59, and fixed the value of the rock excavation, 
which amounted to 536.30 cubic yards, at the rate of approximately $3.30 
a cubic yard, plus fifteen per cent, making a total credit to the contractor 
of $2,033.46. 

It is clear from the testimony given at the public hearings that the 
Commission never paid the contractor at the rate of $7.50 per cubic yard 
for rock excavation on the road, and that the only excavation for which 
it was paid at this last-mentioned rate was that done under item 4 of 
Contract No. 38. Work done under this last-mentioned item was to be 



90 P.D. 12. 

compensated at the rate of $7.50 a cubic yard, and there is no contro- 
versy that such payments at such rate have been made by the Commission. 

As the foundation work for the dam progressed, the need for material 
for the purpose of building the embankment for this foundation became 
more evident. The contractor wanted additional earth excavation work, 
the materials from which would be suitable for placing in the embank- 
ment. The Commission was anxious to secure the employment of ^s 
many men as possible. It was under these circumstances that, on May 
4, 1936, the chief engineer, in a written communication, advised the Com- 
mission that the contractor was anxious to secure additional earth exca- 
vation in the spillway channel, which the contractor believed could be 
used in increasing the height of the foundation grading. The engineer 
stated that it would be necessary to remove about 270,000 cubic yards of 
earth in the spillway area for a distance of about 1,700 feet east of the 
Swift River. The engineer also advised that the contractor was desirous 
of securing the rock excavation work in the spillway, but he informed the 
Commission that he advised the contractor that "in no event should the 
rock excavation be removed until the embankment of the dam has pro- 
gressed sufficiently to receive this material as it is being taken out." 

On the same date, the Commission voted to instruct the chief engineer 
"to proceed with the earth excavation of the spillway channel for the 
Main Dam, extending from the east side of the Swift River about 1,700 
feet, the material so far as adaptable to be used in the embankment of 
the Main Dam." 

The chief engineer, on May 8, 1936, notified the contractor that he was 
"directed by the Commission to advise you that you may excavate the 
earth overlying the rock in the portion of the spillway channel extending 
approximately 1,700 feet northerly from the railroad not exceeding 200,000 
cubic yards, using such of the material as may be found suitable, in the 
opinion of the Engineer, to build consolidated pervious embankment 
under item 7 and rolled impervious embankment not in core under item 9, 
and wasting the unsuitable materials on locations downstream from the 
dam to hnes and grades directed," and that "if this additional work 
should be included in your contract, I understand that, as agreed in con- 
ference with your Mr. Joseph Maney on May 8th, you will accept as 
embankment under item 7 for all materials placed within the embank- 
ment of the dam outside the impervious core, item 8, notwithstanding 
that portions of this material meet the requirements of item 9 and would 
otherwise be classified as such." 

The contractor was further notified that an increase in material from 
25,000 to 50,000 cubic yards would be required in raising the foundation 
grading of the dam, and that the work should be completed on or before 
July 10, 1936. 

This authorization for additional earth excavation to the extent of 
200,000 cubic yards fixed the price for excavation as settled by item 2 of 
the contract at sixty-five cents a cubic yard, but it required the con- 
tractor to place the excavated material in place in the foundation embank- 
ment of the dam at the rate of five cents a cubic yard, as prescribed by 
item 7 under its contract, although if the contract price prevailed it would 
be entitled to receive sixty-five cents per cubic yard for each yard so 
deposited. 

On May 11, 1936, the contractor acknowledged receipt of Mr. Winsor's 
letter of the 8th, but complained that, due to the above-mentioned reduc- 



P.D. 12. 91 

tion in the price for depositing the material in the embankment it under- 
stood it was to be given the entire earth excavation in the spillway, and 
complained of the limitation to 200,000 cubic yards as expressed in the 
said letter of May 8th. 

The contractor again, on June 26, 1936, called the attention of the 
chief engineer to the fact that the contractor understood that the amount 
of earth it was authorized to excavate in the spillway had been increased 
to approximateh'- 260,000 cubic yards. 

On July 2, 1936, the chief engineer had been authorized by the Commis- 
sion to have the contractor excavate additional earth in the spillway 
channel to a total amount not exceeding 260,000 cubic yards. The engi- 
neer replied to this letter of June 26th under date of July 9th, by notifying 
the contractor that it was authorized to excavate and place in the em- 
bankment of the main dam so much additional earth from the spillway 
channel as the engineer may consider desirable to put into the embank- 
ment at that time, and that it was estimated that in "addition to the 
maximum of 200,000 cubic yards mentioned in my letter of IVIay 8, some 
20,000 to 30,000 cubic yards will be required." The contractor was ad- 
vised to continue this excavation until ordered to cease by the senior civil 
engineer on the site, with the further understanding that the work should 
be completed not later than July 20, 1936. 

This work included in these various letters relative to the dirt excava- 
tion in the spillway channel was virtually completed by the last-mentioned 
date, and it was estimated that the contractor had excavated approxi- 
mately 225,000 cubic yards, for which, under its Contract No. 38, it was 
paid at the rate of sixty-five cents a cubic yard for the excavation and five 
cents per cubic yard for placing the material in the foundation grading of 
the dam. 

The area in which the contractor was excavating the earth under these 
two authorizations of May 8, 1936, and July 9, 1936, extended easterly 
about 1,700 feet from a point near the Swift River and between stations 
31 and 18 on the plans. The rock in this area was at a low level, and there 
were approximately 10,000 cubic yards to be excavated, but east of station 
18 there was a precipitous ledge, and in the area included in 300 feet east 
of station 18, which would be station 15, there were approximately 30,000 
cubic yards of rock to be excavated for the spillway. The contractor was 
always anxious to secure this rock excavation work, but desired to be paid 
therefor at the rate of S7.50 per cubic yard, which was the contract price 
for excavating rock where blasting in general was not permitted, as shown 
by item 4 of Contract No. 38. 

On June 30, 1936, the chairman of the Commission, the chief engineer 
and the senior civil engineer while on the site of the work were met by 
Mr. Maney, president of the contractor, and his superintendent, one 
Kelly. Maney requested the rock excavation in the spillway, and claims 
that the chairman of the Commission then agreed to permit him to per- 
form this work at the contract price of $7.50 per cubic yard, as specified 
in Contract No. 38. The chairman, the chief engineer and the senior civil 
engineer all denied that such an agreement was made. The contractor 
and the superintendent both testified that such an agreement was made. 
On this last-mentioned date the contractor wrote the chief engineer that 
as "a result of, and in accordance with several conferences held with you, 
the latest being of this date, we herewith propose to excavate rock in such 
portions of the Spillway Channel between Stations approximately 31 and 



92 P.D. 12. 

18 as may be directed. Said work to be done under the terms and condi- 
tions of Contract 38." At the next meeting of the Commission, which 
was held on July 2, 1936, this communication was referred to the chief 
engineer for investigation and report. As a matter of fact, there was never 
any further investigation or report made by the chief engineer. He testi- 
fied his reason was because, on the day the matter was referred to him, 
the bids were opened by the Commission for the award of the constructio,n 
of the embankment of the main dam of the Quabbin Reservoir. He, 
however, made an oral report to the chairman but not to the associate 
commissioners. It is difficult to comprehend why such a reference should 
be made to the chief engineer, as it was, after these bids were opened. 
The rock excavation which the contractor was seeking to secure was in- 
cluded in the bids submitted on July 2, 1936, by various contractors, in- 
cluding The Two Companies, Inc., for the construction of this main dam. 
On July 16, 1936, the contract was awarded to Benjamin Foster Com- 
pany of Philadelphia. This contract is known as Contract No. 52. 

The Two Companies, Inc., submitted a complete bid totalHng $2,693,- 
900, while that of the Foster Company, which was the lowest, amounted 
to $2,317,445. For doing the work contained in item 3, entitled "Earth 
Excavation," the approximate amount thereof being 250,000 cubic yards, 
the Foster Company bid forty-five cents a cubic yard, while The Two 
Companies, Inc., bid fifty-five cents a cubic yard. For item 5, entitled 
"Rock Excavation — Blasting Permitted," the approximate quantity of 
which was 125,000 cubic yards, the Foster Company bid $1.30 a cubic 
yard, and The Two Companies, Inc., $3.00 a cubic yard. The Foster Com- 
pany bid thirty-two cents a cubic yard for placing approximately 3,550,000 
cubic yards of material under item 8, which was entitled "Embankment 
— Full Hydraulic Method." 

It will therefore be noted that for earth excavation, the materials from 
which are placed in the embankment walls of the dam, the Commission, 
under the Foster Company contract, will pay at the rate of forty-five 
cents for excavating and thirty-two cents for putting it into the embank- 
ment, a total of seventy-seven cents a cubic yard, and that under the 
aforesaid authorizations of the Commission, as contained in its letters 
of May 4th and July 9th, similar work was being done by The Two Com- 
panies, Inc., at the rate of sixty-five cents per cubic yard for excavation 
and five cents a cubic yard for placing the material in the embankment. 

Whether it will cost the Commission more to excavate and deposit 
the material under the Foster contract than it would cost under the vote 
of August 21, 1936, purporting to give (as will hereafter appear) 150,000 
cubic yards of this excavating to The Two Companies, Inc., depends ulti- 
mately upon how much of the excavated material will be suitable for em- 
bankment purposes. If a considerable quantity is suitable, it is apparent 
that The Two Companies, Inc., price is lower than that of the Foster 
Company. 

The excavations in the vicinity disclosed material of such a nature that 
about ninety per cent thereof was suitable for embankment purposes. It 
is apparent, therefore, that there will be little difference in the price 
charged the Commission, whether this work is done by the Foster Com- 
pany under Contract No. 52, or done by The Two Companies, Inc., under 
the vote of August 21, 1936. The chief engineer, replying to a question 
inquiring as to whether or not there would be a difference in the amount 
that would be charged by the Foster Company from that charged by The 



P.D. 12. 93 

Two Companies, Inc., if either performed this excavation and embank- 
ment work, repHed: "It would be a stand off." 

I am therefore of the opinion that upon the testimony there is httle, if 
any, dilTerence in the total cost the Commission would have to pay whether 
this work, comprising earth excavation in the upper spillway to the ex- 
tent of 150,000 cubic j^ards, is done by the P'oster Company or bj^ The 
Two Companies, Inc. 

The record shows, and the bids submitted for doing the work under 
Contract No. 52 prove, that it was the understanding of the Commission and 
of all the contractors, including The Two Companies, Inc., that the ex- 
cavation of rock in the spillway channel was to be done in the usual man- 
ner by blasting. There could be no other inference drawn because the 
prices submitted were at a figure such as to indicate definitely that it was 
contemplated to remove the rock by blasting. The matter does not rest 
on inference, however, because the proposals to bidders expressly pro- 
vided for the excavation of approximately 125,000 cubic yards by blast- 
ing. Anyone familiar with the site upon which the work was being done 
knew that there was included in the rock excavation of the spillway 
approximately 110,000 cubic yards, and that the only remaining rock 
excavation to be done by blasting comprised approximately 15,000 cubic 
yards, located upon other portions of the site. 

It is difficult to understand why, if an oral agreement was made be- 
tween the chairman of the Commission in the presence of the chief engi- 
neer with an official of The Two Companies, Inc., on June 30th, by which 
the chairman orally authorized the excavation of rock in the spillway 
channel between stations 31 and 18, the contractor should, on July 2d, 
submit a bid in which the price charged was only $3.00 a cubic yard for 
doing the same identical work which it now claims was orally awarded 
to it by the chairman on June 30, 1936. There is nothing in the testimony 
whatever supporting the view that at any time any members of the Com- 
mission or the contractor understood that this rock excavation was to 
be accomplished other than by blasting. That was the only practical 
method. The attempt on the part of the contractor to show that less 
rock would be removed by barring and wedging and that the slopes of 
the finished work would be more perpendicular and regular if this method 
were employed than it would be if blasting were resorted to falls far short 
of convincing any ordinary person that such minor advantages would 
warrant the Commission in permitting this work to be done at the rate 
of $7.50 a cubic yard when it had already contracted for the performance 
of this work at $1.30 per cubic yard. The acceptance of such minor ad- 
vantages as would accrue from removing the rock by a method other 
than by blasting as a justification for paying an exorbitant price would 
simply be grasping at the shadow while permitting the substance to 
escape. The Commission has expressly provided in Contract No. 52 
that rock excavated outside the lines established within which blasting 
was to be done would not be paid for. This served to keep the blasting 
within the side lines so established and to prevent extra wide cuts. 

It is also important to note that the letter of June 30th from The Two 
Companies, Inc., to the engineer was in the form of a proposal, and made 
no claim that an actual agreement had been effected on that date be- 
tween the chairman and the contractor in reference to the excavation of 
the rock in question. That the Commission rightly interpreted this let- 
ter as a proposal is further corroborated by its action on July 2d in refer- 



94 P.D. 12. 

ring this matter to the engineer for investigation and report. The latter, 
however, never made any such investigation and report. The contractor 
knew of the making of this award soon after it had been made. Yet, on 
August 20, 1936, the contractor wrote the Commission that it had exca- 
vated 225,000 cubic yards of earth and was awaiting instructions as to 
where further excavation was to be made, which it claimed was given to 
it as the result of several conferences and by verbal agreement. The con- 
tractor also called attention to the fact that there were approximately 
150,000 cubic yards of earth excavation in the spillway between stations 15 
and 4, which could be placed in the embankment under its contract in the 
same manner as the excavation already completed. It also stated in 
this last-mentioned letter that "it was agreed that upon receipt by you of 
a letter, which was written you June 30, we were to receive an order to 
excavate all the ledge between stations 31 and 15." 

In the first place, there is no testimony whatever, either from any 
member of the Commission or from the contractor or any other witness, 
that there was any verbal agreement authorizing the earth excavation of 
an additional 150,000 cubic yards in the spillway; and, in the next place, 
there is no testimony whatever that there ever was any agreement be- 
tween the chairman of the Commission and the contractor to permit the 
excavation of ledge as far as station 15. The contractor admitted that 
there never was any talk about rock excavation between stations 18 and 
15, and never claimed, and did not at the hearing claim, that any talk 
between him and the chairman on June 30th resulted in any agreement 
to excavate rock to the last-mentioned station. However, this letter was 
before the two associate commissioners, the chairman being absent, at 
their meeting on August 21, 1936, and at that time they passed the fol- 
lowing vote : — 

"Voted: That the work be given to The Two Companies, Inc., as 
requested in their letter of August 20, 1936, for the excavation of about 
150,000 cubic yards of earth in the Spillway between Stations 15 and 4 
and all ledge excavations between Stations 31 and 15 at the contract 
prices with The Two Companies, Inc." 

The secretary was requested to notify The Two Companies, Inc., of 
the action of the Commission, which he did on the same date, by writing 
to the contractor the following letter: — 

"The Two Companies, Inc., 50 Congress Street, Boston, Massachusetts. 

Gentlemen: — At a meeting of the MetropoHtan District Water Sup- 
ply Commission held today it was voted to accede to the request contained 
in your letter to the Commission of August 20, 1936. 

Very truly yours, 

R. Nelson Molt, Secretary." 

After the adjournment of this meeting, one of the associate commis- 
sioners telephoned the secretary to inquire if this letter had been sent to 
the contractor, and, upon being informed that it had, requested the secre- 
tary to read a copy to him, which was done. Thereupon, this commis- 
sioner said that he and the other commissioner, who had attended the 
meeting of August 21, 1936, would see the secretary the following morning. 
These same two commissioners met again, but not in formal meeting, on 
Saturday, August 22, 1936. One of these associate commissioners had 
drafted a revision of the vote taken on the preceding afternoon, which he 



P.D. 12. 95 

gave to the secretary, and which he inserted in the record instead of the 
original vote, and the record, as so changed, was approved by these same 
two associate commissioners at their meeting of August 28, 1936. This 
second vote read as follows : — 

" Voted: That The Two Companies, Inc. are hereby authorized to 
begin the work of excavation of approximately one hundred and fifty 
thousand cubic yards of earth excavation in the spillway of the Main Dam 
of Quabbin Reservoir between stations 15 and 4; which excavation is to 
be placed in the embankment in the same manner as the excavation 
already completed in the spillway. It was further voted that The Two 
Companies, Inc. be authorized to excavate all ledge between stations 31 
and 15 at the Main Dam of Quabbin Reservoir, all of which work is to be 
done at the prevailing contract prices specified in Contract 38 now being 
performed by The Two Companies, Inc." 

The same commissioner compiled a draft of a letter to be forwarded to 
the contractor, and the letter was recopied on the Commission stationery 
and mailed by the secretary to the contractor. This letter read as 
follows : — 

"The Two Companies, Inc., 50 Congress Street, Boston, Massachusetts. 

Gentlemen: — Supplementing my letter dated August 21, 1936, with 
reference to action of the Metropolitan District Water Supply Commis- 
sion on your communication dated August 20, 1936, with reference to 
additional work, I desire to say in behalf of the Commission that the 
Commission voted specifically to authorize you to remove approximately 
one hundred and fifty thousand cubic yards of earth excavation in the 
spillway of the Main Dam of Quabbin Reservoir between stations 15 
and 4; this material to be placed in the embankment in the same manner 
as the excavation already completed in the spillway. 

The Commission further voted to authorize you to excavate all ledge 
between stations 31 and 15 at the Main Dam of Quabbin Reservoir, all 
of which work is to be done at the prevailing contract prices specified in 
Contract 38 now being performed by The Two Companies, Inc. 

Very truly yours, 

R. Nelson Molt, Secretary.'" 

The first vote purports to authorize earth excavation to the amount of 
150,000 cubic yards and ledge excavation between stations 31 and 15, 
at the prices prescribed by Contract No. 38. It was important to use all 
the excavated material which was found to be suitable in the grading of 
the foundation of the dam. All of such material was needed. It was con- 
templated that none that could be so used should be wasted. The Com- 
mission was therefore not only interested in excavating the earth in the 
spillway, but it was also equally interested to secure as much embankment 
fill as was possible from this source. Yet the vote only includes excavat- 
ing work. The utilization of this material for fill was provided for in the 
revised vote. This revised vote, so called, was erroneous in prescribing 
the price for excavating and filling. The price for excavation of earth and 
depositing the same in the embankment was not the contract price men- 
tioned in Contract No. 38, but was simply the contract price for excavation 
and a reduction from the contract price of sixty cents to five cents per 
cubic yard for depositing the excavated material in the embankment. 
Those were the prices prevailing at the time the vote was taken. A strict 



96 P.D. 12. 

interpretation of this vote would therefore require the Commission to 
pay $1.25 per cubic yard for all material excavated and placed in the 
embankment. 

In reference to the ledge excavation, there was no item in Contract 
No. 38 which fixed the price for rock excavation where blasting in general 
was permitted. It is idle to conjecture that these two associate commis- 
sioners or the contractor did not intend to remove this rock in the usual 
way by blasting. 

It is also important that at the date of this vote there was no place 
where the excavated rock could be incorporated into the dam. The con- 
struction had not progressed far enough to permit the use of this material 
in the embankment of the dam. That situation had been called to the 
attention of the Commission by the chief engineer prior to August 21, 
1936. 

At the next meeting of the Commission, which was held on August 24, 
1936, the chairman protested concerning the propriety of the action upon 
August 21, 1936, of the two commissioners in passing this vote authorizing 
the giving of this earth excavation work and rock excavation to The Two 
Companies, Inc. He prepared and read a statement, which was later 
filed with the Commission, wherein he recited various objections to the 
proposed award. At the same time, he objected to similar action on the 
part of the associate commissioners with reference to the Cenedella & 
Co. authorization, which is hereinafter referred to. 

The meeting of August 24, 1936, adjourned until August 26, 1936, 
when the votes as revised were approved, and the chief engineer was 
instructed to measure and estimate for payment under item 4 of Contract 
No. 38 for rock excavation done by The Two Companies, Inc., as author- 
ized by vote of the Commission dated August 21, 1936, and was further 
authorized to prepare plans showing the earth and rock excavation to be 
made in this spillway channel by this contractor, the chairman alone 
dissenting. 

At the next meeting of the Commission, on August 28th, a report was 
received from the chief engineer to the effect that the quantity of earth 
excavation which was awarded to The Two Companies, Inc., as "150,000 
cubic yards will probably be only about 125,000 cubic yards. The ad- 
vantageous disposal of even this smaller quantity is not possible at this 
time, and much of it which might be later placed directly in the hydrauhc 
embankment of the dam will probably have to be wasted." The chief 
engineer also advised the Commission that the only provision in Contract 
No. 38 relative to rock excavation was item 4, which prescribed the price 
at $7.50 per cubic yard, and requested the Commission that if they de- 
cided "that this rock excavation should be paid for under item 4, it would 
seem reasonable to require as a substitute method the channeling, or 
excavation by a similar means, of the sides of the channel in advance of 
blasting," and also requested instructions from the Commission. The 
attention of the Commission was further directed to the fact that "the 
disposal of rock excavated at this time will have to be in spoil banks to 
be subsequently rehandled if and as required under Contract 52." 

On September 1, 1936, the contractor wrote the chief engineer agreeing 
to deposit the rock excavated in any place the engineer might designate 
and to waive payment for the transportation of the excavated rock to 
the place selected by the engineer. Under items 6 and 10 of Contract No. 
38, to which the contractor referred in this letter, payment was to be 



P.D. 12. 97 

made for unconsolidated embankment and stone fill at the price of five 
cents and $1.00 a cubic yard, respectively. 

No work has been undertaken by this contractor in carrying out the 
terms of the vote of August 21, 1936. On September 4, 1936, it was 
notified of a vote of the Commission requesting that it cease the further 
performance of any work alleged to have been granted to it under the 
vote of August 21, 1936. 

Cenedella & Co. 

On October 2, 1935, the Commission awarded the contract known as 
Contract No. 49, to a partnership doing business under the name and 
style of Cenedella & Co., and hereinafter referred to as the firm. This 
contract contained thirteen items, giving the approximate quantity of 
each and prescribed as unit prices the prices submitted in the bid. The 
bid of this firm, which amounted to $79,050, was the lowest submitted. 
The work in the main required the excavation of certain ditches or 
channels. 

Item 7, in Contract No. 49, was captioned "Grading banks — channel 
at Shaft 12" and stated the approximate quantity as 500 cubic yards. 
The firm submitted and the contract fixed the price of $1.00 per cubic 
yard for this work. 

On July 23, 1936, in a communication from the firm to the chairman of 
the Commission, the firm advised the Commission that its contract was 
about ninety-eight per cent completed, and requested that it be given a 
contract to build an access road to shaft 12, and that the shaft flowage 
area near the outlet of shaft 11-A ought to be covered with gravel so as 
to delay the growth of underwater fungi in order to protect the water 
from color, taste and odor. This communication was referred to the 
chief engineer. On August 13, 1936, the engineer reported to the Com- 
mission that "owing to the fact that a part of the land upon which this 
road is located is still in private ownership, it is not possible to proceed 
with this road at this time, and in any event the preparation of contracts 
for this work could not be completed in time to do any considerable 
amount of construction before the end of this working season. At shaft 
11-A it is not contemplated to do any other work on the reservoir area than 
the grubbing which is included in the present Contract No. 49, and I 
would recommend that no work of the treatment of shallow flowage 
proposed in the above-mentioned letter be undertaken." 

On June 22, 1936, the Governor and Council had approved the building 
of the access road at a cost not to exceed $100,000. This proposition and 
others had been submitted to the Council in an effort to determine what 
work could be carried on at the Quabbin Reservoir in order to aid the 
unemployment situation. The building of the road was one of the projects 
so approved. 

At the meeting on August 21, 1936, the two associate commissioners 
then present voted that "Cenedella & Company be authorized to con- 
struct an access road to shaft 12 of Quabbin Aqueduct, and such grubbing 
at shaft 11-A as may be necessary to be done." And on the same day, in 
accordance with instructions from the Commission, a letter was sent to 
the firm by the secretary, advising it that at the meeting held upon that 
day it was voted to authorize it to "construct the access road to shaft 12 
of Quabbin Aqueduct, and also to do such grubbing at shaft 11-A of said 
aqueduct as may be necessary to be done." 



98 P.D. 12. 

Contract No. 49 contained an item headed ''Grubbing," the approximate 
quantity of which was fifty acres and the unit price submitted by the 
contractor was $50 an acre, but the firm, in its letter of July 23, 1936, did 
not request any more grubbing work. What it did request was the gravel 
covering of the shallow flowage area near shaft 11-A. When the two 
associate commissioners met on Saturday, August 22d, they revised the 
vote taken on the preceding day and substituted therefor the following 
vote : — ^ 

" Voted, That Cenedella & Co., now doing work for the Metropolitan 
District Water Supply Commission under Contract 49 at the Quabbin 
Reservoir be authorized to construct an access road to be built to Shaft 
12 of Quabbin Aqueduct the approximate length of this road being eleven 
thousand feet. It was further voted by the Commission that Cenedella 
& Co. be authorized to cover the entire area at shaft 11 A that has been 
cleared with gravel at a depth of not less than one or more than three 
feet, and that Cenedella & Co. are to be paid under Item 7 of Contract 49, 
namely. One Dollar per cubic yard for grading measured in the borrow 
bank." 

On the same day, but under date of August 21, 1936, the secretary, in 
accordance with the request of these two associate commissioners, wrote 
the contractor as follows : — 

"In answer to your letter of July 23rd, we wish to advise you that the 
Commission has voted to cover the entire area at Shaft llA that has been 
cleared with gravel, at a depth of not less than one, nor more than three 
feet. 

You are hereby authorized to proceed and are to be paid, under Item 7 
of your Contract No. 49, namely $1.00 per cubic yard for grading, meas- 
ured in the borrow bank. 

With reference to the access road to Shaft 12, we are not ready to pro- 
ceed, but suggest that you communicate with our engineers regarding the 
items on this road." 

At the regular meeting on August 24, 1936, the chairman protested the 
vote giving this work to Cenedella & Co. at the same time and in the same 
manner as he protested the vote authorizing the giving of the earth and 
rock excavation to The Two Companies, Inc. The matter was continued 
for the August 26th meeting, when the votes, as revised, were approved, 
and the engineer was instructed to confer with Cenedella & Co. in refer- 
ence to the work awarded to it under the vote of August 21st. The firm 
also conferred with the Commission at its meeting on August 28th, and 
subsequently the engineer had staked out upon this shallow flowage area 
a swampy portion of about twenty acres, which, starting on August 27, 
1936, the contractor had covered to the depth of about a foot. When the 
work was ordered to be stopped by vote of the Commission on September 
4th, some 15,000 cubic yards had been placed in position in this shallow 
area. 

The revised vote under date of August 21, 1936, awarding this gravel 
covering to Cenedella & Co., fixed the price at that prescribed by item 7 
of Contract No. 49. The work required under this item was the furnish- 
ing and placing suitable material, generally rock or gravel, from the exist- 
ing channel spoil banks, upon the banks of the lower intake channel in 
order to smooth them up and protect them from future scour. The ma- 



P.D. 12. 99 

terial required for this work was substantially different from the gravel 
required for the covering of the shallow area. Two-thirds of the work 
done under item 7 was located under water while, in the case of covering 
the shallow flowage area, the material was taken from a nearby pit, de- 
posited by truck and leveled with a bulldozer. The gravel covering was 
dissimilar from any work included in Contract No. 49. The covering of 
this shallow flowage area was not given as an extra under this contract. 
The fact is that there was nothing contained therein that would warrant 
the inclusion of the work in question under any item of Contract No. 49. 

The area in question will not be utilized for the storage of water for 
eight years. The gravel covering that has already been done is unneces- 
sary from an engineering point of view. The plan of the dam, with its 
various shafts, channels and other accessories, shows that the water which 
will be stored in this shallow area will flow along for a distance of nearly 
eleven miles before it joins the body of water which is to immediately 
begin its journey into the distribution system. The flow of water from 
this basin or area along this eleven-mile course will in all probability free 
it from any impurities that might have been acquired while it was con- 
fined in this basin. 

In the next place, it is apparent from the testimony that while the 
addition of a single foot of gravel might retard the immediate growth of 
vegetation in the basin, yet by the time the area is ready to function, a 
further growth of vegetation will be reseeded by nature in this top surface 
of gravel. The only gravel covering work that has ever been done on 
the entire site was a small area of approximately 4,000 feet on the top of 
the river bank, and that was done mainly for aesthetic purposes. The 
cost of doing this work was twenty-nine cents per cubic yard. 

I am convinced that the rate of SI. 00 a cubic yard fixed in the vote of 
the majority commissioners on Augvist 21, 1936, is unreasonable and 
excessive, and that a fair price would be from twenty to twenty-five cents 
a cubic yard, provided there was any practical necessity for this expendi- 
ture at all, which I find there is not. The covering of this entire area to 
only the depth of one foot would incur an expenditure of $80,000, and, if 
covered to the depth of three feet, a maximum expenditure of $240,000. 
There is no justification for the expenditure of any money on this account. 

No plans have been prepared for the road mentioned in the vote of 
August 21, 1936. A single terminus commencing at shaft 12 is the only 
definite point of location of the entire road, which is to be approximately 
11,000 feet, and connect somewhere with some public highway in the 
vicinity. The grade, width, construction, surface or any other essential 
details of the road have never been agreed upon or settled. A vote as 
indefinite and vague as the one in question, which might result in the 
expenditure of more than $100,000 of the public funds, does not constitute 
an enforceable contract. 

Conclusion. 
The Commission. 

There was considerable testimony as to the manner of fixing the time 
for meetings of this Commission. Usually the Board met Mondays. If 
additional meetings were desired, the practice was for the member who 
wanted the meeting to notify the secretary when he wished the Board to 
meet. The secretary would then inform the other members and if the 
time suggested were convenient, written notice was then mailed by the 



100 P.D. 12. 

secretary to each member. If the secretary found from interviewing a 
member the time proposed was not convenient, then he relayed this in- 
formation to the other members and when he had finally secured a date, 
agreeable to all of them, a notice of such a meeting was accordingly mailed 
to each of the three members. One of the associate commissioners re- 
quested the secretary on Thursday, August 20, 1936, about seven p.m. 
to notify the members of a meeting JFor two p.m. the next afternoon. The 
secretary telephoned this information to the chairman, who said that 
he would not be able to attend. The secretary telephoned the home of 
the third commissioner stating the time of the proposed meeting. The 
commissioner was not at home but a member of the household told the 
secretary that she thought the time would be convenient for him to attend. 
Contrary to the usual practice, no effort was made by the secretary to 
secure a time that would be agreeable to all the members, when it was 
stated by the chairman that he could not attend. Since the present con- 
troversy arose a regulation has been made by the Board requiring forty- 
eight hours' notice of a meeting in all cases where a member informs the 
clerk that he desires a meeting of the Board. There was no adequate 
reason for such hasty action. No emergency existed and the progress 
of the work would in no way have been interrupted if the matter had 
been left for consideration at the next regular meeting, to be held on 
August 24, 1936. The majority commissioners evidently thought other- 
wise but neither was able at the public hearings to quote any reason that 
would reasonably commend itself to the intelligence of any fair minded 
man of ordinary sense or good judgment. 

The chairman was absent from the meeting of August 21, 1936. In view 
of the events which occurred on the afternoon of the preceding day, he 
certainly had reasonable cause to know what action was to be taken at 
the meeting, even if he did not have actual knowledge of what action was 
contemplated. He did not show that he was unable to attend this meet- 
ing. He simply saw fit to absent himself. 

The evidence showed that since its inception more than a million dol- 
lars' worth of work has been given out by this Commission as extras or 
by fastening on existing contracts new projects that could not be fairly 
considered as a part or parcel of any existing contract. This work was 
awarded without any competitive bidding. The awarding to the con- 
tractor of the road construction on April 30, 1936, is an example of laxity 
in the conduct of the affairs of this Commission. No bids for the con- 
struction of these two roads were called for. The work was awarded as 
an extra under Contract No. 38. It was an entirely new project and 
ought to have been made the basis of a new contract awarded after com- 
petitive bids had been advertised for and received. There was no evi- 
dence as to what the contractor had been paid for the construction of 
these two roads. In fact, it was not until after a dispute arose on August 
28, 1936, that it was discovered that the contractor had not been paid 
for rock excavation done upon this road construction. Even at the 
meeting of August 28th, the Commission, the chief engineer and the con- 
tractor thought that payment at the rate of $7.50 a cubic yard had been 
made for rock excavation in the construction of these two roads. The 
present controversy occasioned further investigation to be made and 
the fact established that the contractor has not yet been paid for such 
rock excavation. The impracticability of attempting to tie the construc- 
tion of these two roads to Contract No. 38 as an extra is shown conclu- 



P.D. 12. 101 

sively by the fact that the road work was outside and beyond the kind 
and character of the work included in Contract No. 38. There were no 
items in this contract which singuhirly or in combination could be utilized 
to determine the manner in which the road construction was to be per- 
formed or to fix the prices to be paid therefor. 

There is no place for such laxity upon the part of a board interested in 
the completion of such a large undertaking upon which expenditures of 
approximately $40,000,000 have already been approved and most of 
which has already been spent. Legislation should be enacted requiring 
the Commission to advertise publicly for bids and to award final written 
contracts, in every case where an expenditure of over one thousand dol- 
lars is to be incurred. Until this legislation is secured, the Commission 
should adopt such a measure by an appropriate rule or regulation. 

The price which the Commission attempted to fix for gravel covering, 
SI. 00 a cubic yard, carried its own condemnation. Not a single piece of 
testimony warranted such an exorbitant figure. The work was entirely 
unnecessary, and the attempt of the Commission to establish the price 
under an item in Contract No. 49, which called for entirely different 
material and a different manner of performing the work, characterizes the 
action of the Commission as illegal and void and does violence to the 
public interest. 

The refusal of this Commission to grant the request of a member of 
the Executive Council to inspect or secure copies of its records or con- 
tracts is regrettable. Any citizen acting in good faith should be allowed to 
see these records and contracts where such action is not contrary to the 
public interest, as where a suit is pending or a disclosure might injure the 
Commission in the prosecution or defense of such an action. In all other 
cases, the citizen should have access at any reasonable time. Even if we 
are dealing with papers which might not technically be pubUc records, 
the matter could and should be covered by a regulation of the Board in the 
interest of the public. 

Information for Bidders. 

Information for bidders which was furnished to the bidders at the time 
they were given proposals upon which to submit these bids contained a 
provision to the effect that, "Attention is also called to the fact that under 
another contract now in progress at the site, the Commission is excavating 
a substantial portion of the discharge end of the spillway channel, and 
using suitable excavated material to build up the foundation embank- 
ments, and therefore the finished grading upon which the hydraulic fill 
starts will be somewhat higher than shown on the plans and a part of the 
excavation of the spillway channel shown thereon will have been made; 
that certain portions of the work of this contract cannot be commenced 
until the existing contract is completed, and that a considerable quan- 
tity of rolled impervious embankment may be required to be placed and 
some grading to be done under this contract to complete the foundation 
embankment before the placing of hydraulic fill can be commenced." 

The suggestion that this provision is indicative that the Commission 
contemplated letting a portion of the work included within the bid to 
some contractor other than the one to whom the contract would be awarded 
is utterly untenable. No part of the Information for Bidders, so called, 
became a part of Contract No. 52 awarded on July 16, 1936, to the Foster 
Company. It is also apparent that fixing the time when the earth exca- 



102 P.D. 12. 

vation must be finished as July 10, 1936, and July 20, 1936, as set forth in 
the letters of May 8, 1936, and July 9, 1936, respectively, shows that the 
Commission did not intend to carve the earth or rock excavation from the 
main contract and to award it to someone else. The quoted provision 
simply warned prospective bidders that a contractor was completing some 
earth excavation on the site of the main contract. The provision had no 
other effect. It certainly in no way can be said to lend any support to the 
votes of August 21, 1936. 

The Two Companies, Inc. 

The inclusion of sixty per cent of the total earth excavation and thirty- 
five per cent rock excavation, already awarded to one contractor, in a 
contract with another contractor warrants explanation, but when it also 
appears that the price for doing a portion of this work, i.e., the rock ex- 
cavation, will involve an expenditure of more than $248,000 in excess of 
the price fixed by the existing award, and that the work is to be given at 
the rate of $7.50 a cubic yard to one who had already submitted a bid 
of $3.00 a cubic yard, constitutes a series of events demanding severe con- 
demnation. Any contract so effected is contrary to public poUcy, incon- 
sistent with the public interest, subversive of public welfare and must be 
stricken down. The plain dictates of common justice have been outraged. 
Nothing has been said and nothing can be said to mitigate or mollify such 
official conduct upon the part of those involved. At least, it constitutes 
a serious breach of public trust. There must be no temporizing with 
such inexcusable extravagance in the disbursement of public funds. My 
plain duty is to advise you that the action of the majority of this Com- 
mission in attempting, on August 21, 1936, to award a contract for 
150,000 cubic yards of earth excavation and approximately 40,000 cubic 
yards of rock excavation is a mere nulhty. 

Cenedella & Co. 

The total price to be paid by the Commission for the full performance 
of its contract with Cenedella & Co. was approximately $79,050, depend- 
ing upon the actual quantities of work done under the various items at the 
prescribed unit prices. The only road construction included therein was 
that caused by the digging of the diversion channels, which were dug 
across two existing ways, and the Commission having decided that it 
would build but a single bridge carrying both roads over the channel, it 
became necessary to relocate one of these roads and have it join the other 
road, so that both roads so connected could use the same bridge. This 
required the relocation and construction of a new road for the distance 
of 1,000 feet. The contract called for the erection of a single bridge. 
These two roads and the bridge were only for temporary use, as this en- 
tire area was to be permanently inundated when the dam was put in 
operation. The road mentioned in the vote of August 21, 1936, was in- 
tended to be of permanent construction and to furnish access to shaft 12. 
Whatever type of construction, or width, or grade, or surface was finally 
selected, it was to be essentially different from the temporary road work 
included in Contract No. 49. 

In the next place, the building of this road was never considered by the 
parties as extra work under article XVIII of the last-mentioned contract. 
The provisions of that article were never complied with, and the engineer 



P.D. 12. 103 

had no authority to waive its provisions. Upon the evidence he did 
nothing that would constitute a waiver. It was not an extra under Con- 
tract No. 49, and could not rightly be considered a part of that contract. 
It should have been made the subject of a new contract. 

The road, however, was separate and apart from the work included in 
the contract, and its construction cannot rightly b(^ held to be an altera- 
tion within the scope of article X\^II of the contract. Alterations to the 
extent of minor details in the work covered by the contract cannot be 
stressed to include work of the kind and character required for the con- 
struction of a permanent road which by any fair intendment cannot be 
brought within the sweep of the original contract. 

The two articles last above referred to are the only provisions which 
permit any amendments to the contract, as that term is ordinarily em- 
ployed. The attempt to fasten upon a contract calling for the expenditure 
of approximately $80,000, a further expenditure of $100,000 for a matter 
unrelated to that covered by the contract finds no support in either law 
or fact. 

The same general considerations apply to the gravel covering of the 
flowage area. It was not included in Contract No. 49; it was work sub- 
stantially different in character from that comprehended by that contract; 
and was not considered or treated by the parties as an extra. The work 
in question, requiring a total expenditure of from $80,000 to $240,000, 
cannot be supported or fairly construed as an alteration under the perti- 
nent article in the instant contract. 

If the vote of August 21, 1936, even in its revised form, is interpreted 
as a unit, then the irregularities assume a cumulative effect and demon- 
strate the inherent invalidity of the action of the majority of the Commis- 
sion. A contract calling for the expenditure of approximately $80,000 
and containing precise limitations concerning extra work and alterations 
cannot be extended, under the circumstances shown by this record, and 
in violation of the terms of the original contract, to include other work 
that might cost more than four times the amount stated in the contract. 

The action of the Commission, if permitted to be carried out, will con- 
stitute an unwarranted and unnecessary expenditure of public funds of 
over $400,000 in excess of the amount for which the work could be done, 
even assuming that it was desirable to have the work done. The action 
of the Commission on August 21, 1936, is illegal and void, and none of 
the votes taken at that time bind the Commission. 

Respectfully subnjitted, 

Paul A. Dever, Attorney General. 

Statute — Effective Date — Emergency Measure. 

Sept. 23, 1936. 

Hon. Emil E. Fuchs, Chairman, Unemployment Compensation Commission. 

Dear Sir: — You have requested my opinion as to the three following 
matters relative to the Massachusetts Unemployment Compensation 
statute : 

"1. The effective date of G. L. (Ter. Ed.) c. 151A." 

Said chapter 151A, originally enacted and embodied in St. 1935, c. 479, 
an emergency measure, became effective, in my opinion, upon the date 



104 P.D. 12. 

of the approval of said chapter 479, August 12, 1935. By section 7 of 
said chapter 479 certain of the provisions of said chapter 151 A did not, 
however, become operative at that date. 

"2. The effective date of St. 1936, c. 12, if the effective date of chapter 
151A as so amended is different from the effective date of G. L. (Ter. Ed.) 
c. 151A." 

In my opinion, the effective date of St. 1936, c. 12, an emergency meas- 
ure, was the date of its approval, January 31, 1936. 

"3. The effective date of chapter 151A as amended by St. 1936, c. 12." 

In my opinion, the effective date of chapter 151A was, as I have stated, 
the date of the approval of said chapter 479, August 12, 1935, but, as I 
have also already set forth, certain of its provisions did not then become 
operative. In its amended form it became effective and fully operative 
as of January 1, 1936, according to its provisions, by virtue of the amend- 
ing terms of St. 1936, c. 12, upon the approval of the act by the Federal 
Social Security Board, which I am advised occurred on February 4, 1936. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Retirement System — Employee — Age of Retirement. 

Sept. 25, 1936. 

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

Dear Sir: — You have asked my opinion upon the following subject 
matter in a letter which reads : — 

"I should greatly appreciate your opinion, based on the facts given 
below, as to the legality of the re-employment of Thomas V. Morgan by 
the Wrentham State School subsequent to September 17, 1936: 

Mr. Morgan entered the employ of the Wrentham State School in 1933, 
at which time he gave his date of birth as September 17, 1888. After- 
wards, owing to a regulation requiring a sworn statement as to the place 
and date of birth, it was disclosed that Mr. Morgan was born on Septem- 
ber 17, 1866. He therefore reached the compulsory age of retirement 
from the State service on September 17, 1936. He never was a member 
of the State Retirement Association, and will have no claim for any pen- 
sion or annuity on account of service." 

Upon the facts as you have set them forth, the superintendent to whom 
you refer was a person who entered the service of the Commonwealth 
after he had reached the age of fifty-five. There is nothing in the nature 
of his position or its tenure or the mode of his appointment which renders 
the incumbent outside the definition of one of the "employees" of the 
Commonwealth as given in G. L. (Ter. Ed.) c. 32, § 1, or which brings 
him within any exception to the general rule laid down in the last sen- 
tence of G. L. (Ter. Ed.) c. 32, § 2 (2), which general rule provides that 
persons who enter the service of the Commonwealth at an age greater 
than fifty-five, though not permitted to be members of the State Retire- 
ment Association, may not remain in the service after reaching the age 
of seventy. (See opinion of a former Attorney General to the Commis- 
sioner of Education, February 17, 1932, in re retirement of the super- 



P.D. 12. 105 

intendent of the Massachusetts Nautical School at the age of seventy; 
Attorney General's Report, 1932, p. 42.) There is nothing in the provisions 
of section 2 (3) which excepts him, with relation to his position, from the 
said general rule. 
Said section 2 (2) reads : — 

"All persons who are members of the teachers' retirement association 
at the time of entering the service of the commonwealth, and persons who 
were or are in the employment of a department or institution formerly 
administered by a city, county or corporation when taken over by the 
commonwealth shall become members of the association, irrespective of 
age, but no such person shall remain in the service of the commonwealth 
after reaching the age of seventy. Except as provided in paragraph (3) 
all other persons who enter the service of the commonwealth hereafter 
shall, upon completing ninety days of service, become thereby members 
of the association, except that such persons over fifty-five shall not be 
allowed to become members of the association, and no such person shall 
remain in the service of the commonwealth after reaching the age of 
seventy." 

It follows, of course, from the foregoing that it was not the intent of 
the Legislature that one in the position of superintendent of the Wren- 
Iham State School, beyond such retirement age of seventy, should be 
employed or "re-employed" in the service of the Commonwealth. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Rules and Regulations — Salaries. 

The Civil Service Commission has no authority to fix minimum and 
maximum salaries to be paid appointees classified by it. 

Oct. 19, 1936. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You have requested my opinion as to whether or not the 
Civil Service Commission has authority to fix the minimum and maximum 
salaries to be paid appointees to positions classified by it. The Commis- 
sion has no such authority. 

The Commission is authorized by G. L. (Ter. Ed.) c. 31, § 3, to make, 
subject to the approval of the Governor and Council, rules and regula- 
tions which shall regulate the selection of persons to fill appointive posi- 
tions within the operation of the law, which rules shall include provisions 
for the classification of the positions and employments to be filled. The 
only reference in the chapter to the compensation for the classifications 
is made in section 34, which provides that the Commissioner may in- 
vestigate, among other things, the compensation paid officers and em- 
ployees in the classified civil service and report thereon to the Governor 
or to the General Court. 

Thus it is seen that the purpose of the Legislature in creating the Com- 
mission was primarily to provide for a method of selecting persons to fill 
the appointive positions in the government, and the authority of the 
Commission as given is directed to that end. The authority as to com- 
pensation is an investigating authority only and is granted to the Com- 
missioner alone. 



106 P.D. 12. 

The matter of the salaries to be paid to employees of cities and towns 
is governed by G. L. (Ter. Ed.) c. 41, § 108, which provides that heads 
of departments of a town shall fix the salaries or compensation of all 
officers or employees appointed or employed by them, subject to the pro- 
visions of G. L. (Ter. Ed.) c. 44, § 31. 

The salaries to be paid county employees are fixed by the County Per- 
sonnel Board, provided for by G. L. (Ter. Ed.) c. 35, §§ 48-56. 

G. L. (Ter. Ed.) c. 45, §§ 45-50, provide for the classification of all 
appointive officers in the service of the Commonwealth and for the fixing 
of salaries in accordance therewith by the Division of Personnel and 
Standardization, subject to the approval of the Governor and Council. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Board of Registration in Embalming — Members — Classifications. 

It is not required by statute that an appointee to the Board of Registra- 
tion in Embalming should himself be a registered embalmer. 

Nov. 5, 1936. 
William L. Reed, Esq., Executive Secretary. 

Dear Sir : — You advise me that His Excellency the Governor has 
submitted to the Executive Council for approval the nomination of a 
person who is not a registered embalmer under our laws for appointment 
to membership in the Board of Registration in Embalming. You further 
state that you are requested to ask my opinion as to whether or not such 
person is eligible for said appointment. 

Membership in the Board of Registration in Embalming is restricted 
to those who are skilled embalmers and who have had five years of prac- 
tical experience in the embalming of human dead bodies. G. L. (Ter. 
Ed.) c. 13, § 29. The statutes further provide for the organization and 
maintenance of this Board; for the expenditure of certain sums "for 
purposes of instruction, and for dissemination of new and useful knowl- 
edge among and for the benefit of licensed embalmers"; for the exami- 
nation of applicants for registration and the issuance of certificates of 
registration to those found qualified; for the promulgation of rules and 
regulations of the Board; and for the investigation and enforcement of 
the statutes relative to the business of embalming. The conduct of an em- 
balming business by one not so registered constitutes a violation of law. 
G. L. (Ter. Ed.) c. 13, § 40; c. 112, §§ 82-87. 

The present tendency of the Legislature to supervise and control this 
business further is manifested by the recent enactment of St. 1936, c. 407, 
which, however, does not become effective until January 1, 1937. 

Our law does not expressly require that an appointee to this Board 
shall be a registered embalmer, and I am therefore constrained to advise 
you that such an appointment would be valid as matter of law. 

I would, however, be remiss in my duty if I failed to advise you further 
that such an appointment would be utterly inconsistent with the spirit 
and efforts of our legislation, as manifested by the statutory provisions 
above mentioned. 

Very respectfully yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 107 

Auditor of the Commonwealth — ■ Unemployment Compensatioyi Commission 
— Duty to Audit Accounts. 

The Auditor of the Commonwealth is bound to audit the accounts of 
the Unemployment Compensation Commission, but he has no right 
to inspect or examine the original returns filed by employers with 
the Commission. 

Nov. 12, 1936. 

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

Dear Sir: — You have requested my opinion in the following lan- 
guage : — 

"Will you please inform me as to whether or not I am required to audit 
the accounts of the Unemployment Compensation Commission, including 
the contributions. 

Will you also advise me, if I am required to audit the accounts of the 
Unemployment Compensation Commission, whether or not I have the 
right to inspect and examine the original returns filed by the employers." 

I am of the opinion that it is j^our duty to audit the accounts of the 
Unemployment Compensation Commission. You are required by G. L. 
(Ter. Ed.) c. 11, § 12, "to make a careful audit of the accounts of all 
departments, offices, commissions, institutions and activities of the com- 
monwealth," with certain exceptions not applicable to the said Commission. 

The Unemployment Compensation Commission, established by St. 
1935, c. 479, is one of the "offices" of the Commonwealth, as that word 
is used in said chapter 11, section 12. I am of the opinion, however, that 
you have no right to inspect and examine the original returns filed by 
emplo3^ers with the Commission, nor does your duty as Auditor include 
an audit of contributions except in so far as to check the amount of such 
contributions as have in fact actually been paid in to the Commission 
from time to time. For this purpose, which is that of verifying amounts 
received in order to check disbursements as against them, it is not essen- 
tial that you should "inspect and examine the original returns filed by 
the employers," nor is it a necessary part of the making of an audit so 
to do, nor is it any part of such audit to check the amounts payable as 
contributions, your duty in this respect being limited to the amounts 
actually paid in to the Commission as such contributions. 

The general principles laid down in my opinion to you of January 18, 
1935 (not published), relative to your duties in auditing the accounts of 
the Racing Commission are applicable to the instant matter. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Auditor of the Commonwealth — State Retirement Association — Duty to 

Audit Accounts. 

Nov. 12, 1936. 

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

Dear Sir: — You have asked my opinion as to whether or not you are 
required to audit the accounts of the State Retirement Association. 

I am of the opinion that you are required to audit the accounts of the 
State Board of Retirement, provided for by G. L. (Ter. Ed.) c. 10, § 18, 
which is the managing authority of the said association. 



108 P.D. 12. 

The principles of law expressed in an opinion given to the then Auditor 
of the Commonwealth on January 27, 1932, by one of my predecessors 
in office, in which I concur, relative to the duty of the Auditor to audit 
the accounts of the Teachers' Retirement Board, apply to the instant 
question. Attorney General's Report, 1932, p. 36. 

You are required by G. L. (Ter. Ed.) c. 11, § 12, as amended by St. 
1923, c. 362, § 16, to make annually an audit of the accounts of all de- 
partments, offices, commissions, institutions and activities of the Com- 
monwealth, with certain exceptions not applicable to the State Board of 
Retirement. 

The State Board of Retirement falls within the meaning of "offices" of 
the Commonwealth. 

Although the Treasurer and Receiver General, with the approval of 
the State Board of Retirement, has custody of the funds of the retire- 
ment system, and the Commissioner of Insurance has certain powers of 
examination and inspection of its financial condition under section 34 of 
said chapter 32, neither of these officials is required to make an "audit" 
of its accounts, nor does the delegation to them of their respective duties 
deprive the Auditor, by implication, of his duty to make a "careful audit 
of the accounts" of the Board, under G. L. (Ter. Ed.) c. 11, § 12, as 
amended. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Transfers — Rules. 

Nov. 12, 1936. 
Hon. Thomas H, Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion as to whether or not under 
Civil Service Rule 27, applying to transfers, a person must serve for one 
year after the date of permanent employment before he is eligible for 
transfer. You advise me that you have received a request for the transfer 
of a person who has only been permanently employed since March, 1936, 
but who had served on a temporary appointment for nine months previ- 
ous to the date of permanent employment. 

Civil Service Rule 27, applying to transfers, reads as follows : — 

"Any person duly certified for permanent employment and actually 
employed for at least one year (including the time of probationary service) 
in any classified position in the Official Service may, after written appli- 
cation to the Commissioner by the respective appointing officers and upon 
consent of the Commissioner, be transferred to another position with or 
without examination, as the Commissioner may order; provided, that in 
the discretion of the Commissioner, the person to be transferred must at 
the time of transfer possess the qualifications required for an original 
appointment to the new position." 

I am of the opinion that Rule 27, as it is worded, means that a transfer 
to another position may be granted only to one who has been duly certi- 
fied for permanent employment and who has actually been in permanent 
employment for at least one year, including the time of probationary 
service. The words "actually employed for at least one year," as used in 
the rule, are necessarily related to the words immediately before them, 



P.D. 12. 109 

"duly certified for permanent employment," and import permanent em- 
ployment and not employment of a different character. 

You inform me that heretofore the practice in your department has 
been to authorize transfers only when an employee has been actually 
employed on a permanent basis for one year. In my opinion, your practice 
has been correct. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Assistant State Hospital Stewards — Mode of Appointment. 

Nov. 12, 1936. 

Hon. Thomas H. Green, Commissioner of Civil Service. 

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

"Please give me an opinion on the following question: G. L. (Ter. Ed.) 
c. 31, § 42, provides for the appointment of treasurers and stewards in the 
service of the institutions of the Commonwealth in a special manner. In 
recent months, the position of assistant state hospital steward has been 
granted in various State institutions. Will you kindly give me your 
opinion as to whether or not you believe assistant state hospital stewards 
may be qualified in the same manner as stewards and treasurers." 

The unusual provisions of G. L. (Ter. Ed.) c. 31, § 42, for the appoint- 
ment of treasurers and stewards "in the institutional service of the Com- 
monwealth" are limited by the statute itself to the two classes of officials 
named therein. These provisions cannot be extended by implication 
so as to apply to other officials. If the General Court should deem it best 
that such provisions should govern the appointment of assistant state 
hospital stewards, it will doubtless express its intention to that effect by 
some appropriate enactment. It has not yet done so. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Auditor of the Commonwealth — Town Agent — Accounts. 

It is the duty of the Auditor of the Commonwealth to audit the accounts 
of an agent appointed by the Metropolitan District Water Supply 
Commission to manage a town, under St. 1928, c. 340. 

Nov. 19, 1936. 

Hon. Thomas H. B\jckley, Auditor of the Commonwealth. 

Dear Sir : — You have asked my opinion as to whether you are re- 
quired to audit the accounts of the town of Prescott. 

You advise me that the Metropolitan District Water Supply Commis- 
sion has appointed an agent, who has conducted the affairs of the town 
since 1928, and that this agent was appointed under the authority of St. 
1928, c. 340, by the said Commission, and that his accounts are not 
audited by the Division of Accounts in the Department of Corporations 
and Taxation. 



110 P.D. 12. 

Under the terms of said chapter 340 the MetropoHtan District Water 
Supply Commission is given all the rights, powers and duties of all town 
boards and officers with relation to the town of Prescott, and the Com- 
mission is authorized to exercise such powers through the agent or agents 
appointed by it. 

Among other things the agent or agents so appointed are charged with 
the duty of acting as town treasurer and of receiving from the Commis- 
sion certain funds and paying them out to satisfy claims against the town. 

Under G. L. (Ter. Ed.) c. 11, § 12, you are charged with the duty of 
making annually a careful "audit of the accounts of all departments, 
offices, commissions, institutions and activities of the commonwealth." 
I am of the opinion that the agency created by the said Commission, as 
heretofore described, is one of the "activities" of the Commonwealth, and 
that the accounts of the agent are accordingly subject to your audit, if 
they have not already been audited as direct accounts of the Commission 
itself. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Health — Shellfish — Certificates — Approval. 

The Department of Public Health may revoke its approval of a certificate 
of out-of-state authorities with relation to foreign shellfish beds and 
establishments. 

Nov. 19, 1936. 

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

Dear Sir: — In response to your inquiry, I am of the opinion that 
your department has the right to revoke its approval previously given to 
a certificate of out-of-state certifying authorities with relation to shellfish 
beds and establishments, if you have before you evidence which satisfies 
you that, notwithstanding such a certificate, an establishment as to which 
a certificate relates is not in fact in proper condition. 

The fact that the holder of such a certificate had been convicted in 
Massachusetts of delivering sewage-polluted shellfish, as you state, would 
be some evidence which you might consider in determining whether or 
not, in your opinion, the condition of the out-of-state estabhshment was 
not as good as previously represented by the certificate. 

An opinion of October 22, 1934 (Attorney General's Report, 1934, 
p. 105), by one of my predecessors in office, to which you refer and in 
which I concur, related to revocations of approvals because of findings 
by you that shellfish beds were no longer in the uncontaminated condition 
originally represented by such certificates. The situation with regard 
to estabhshments is governed by an analogous principle of law. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages Control Commission — Tavern — Entrances. 

Nov. 19, 1936. 

Alcoholic Beverages Control Commission. 

Gentlemen: — Relative to the definition of "tavern" as used in G. L. 
(Ter. Ed.) c. 138, § 1, I am of the opinion that the phrase "all entrances 



P.D. 12. Ill 

to which shall open directly from a public way" does not apply to en- 
trances which are used only for the delivery of merchandise and are not 
used as means of access or egress by customers of the tavern. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages Control Commission — License — Transfer. 

The licensing authorities have a right to permit the transfer of a package 
store license by the administratrix of the estate of a deceased licensee 
to a corporation, the stock of which she owns. 

Nov. 20, 1936. 

Alcoholic Beverages Control Commission. 

Gentlemen: — You have asked my opinion upon the following ques- 
tion, based upon certain facts which you have set forth, as follows: — 

"A Hcensee who held a 'package store' license in the city of Boston died 
about six weeks ago. He held the license in his own name as an individual. 
His widow, who is a citizen, is carrying on the business, under authority 
of the court, as administratrix of the estate of her late husband. We 
understand that she is the sole heir of her husband. 

Under these circumstances, due to the fact that she is the sole heir 
could she form a corporation and have the license transferred to the cor- 
poration, on the theory that, as the heir-at-law, she would have the same 
interest in the corporation that she now holds as heir-at-law of the estate? 
The question as given to me reads as follows : — 

'Have the licensing authorities a right to permit the transfer of a pack- 
age store license in Boston to a corporation by the administratrix of the 
estate of a licensee, who is carrying on the business, under leave of court, 
provided the stock in the corporation is owned by the administratrix?' " 

The applicable portions of the relative statute, G. L. (Ter. Ed.) c. 138, 
§ 23, as finally amended by St. 1935, c. 440, § 23, read: — 

"Any license under this chapter held by an individual, partnership or 
corporation may be transferred to a corporation, qualified to receive such 
a license in the first instance, which succeeds to the licensed business, if 
the parties interested in such business retain substantially the same 
interest therein, as determined by the licensing authorities granting the 
same. . . . 

In the case of the death of an individual holder of any license or permit 
under this chapter, such license or permit, unless earlier surrendered, 
revoked or cancelled, shall authorize the executor or administrator of the 
deceased licensee or permittee to exercise all authority conferred upon 
such licensee or permittee until the termination thereof." 

An interest in a license is something of value which may be transferred 
in accordance with statutory provisions, irrespective of the limited nature 
of the right which the holder has in the license or its continuance, and on 
its transfer under the above-quoted statutory provisions the adminis- 
tratrix is required to account in her official capacity for the stock received 
in exchange therefor. Fisher v. Cushman, 103 Fed. 860, 865 (see In re 
Wiesel, 173 Fed. 718). 

Assuming that the administratrix receives all the stock, except such 
few shares as are necessary for purposes of forming a corporation, in her 



112 P.D. 12. 

name as such administratrix of the estate of her intestate, I am of the opin- 
ion that the transfer of the Hcense may be permitted. 

The administrator of a deceased hcensee is specifically empowered by 
the instant statute "to exercise all authority conferred upon" the licensee. 
Authority to transfer a licensee's interest in a given business to a corpora- 
tion, in exchange for a similar interest in the corporation itself, was one 
which the administratrix's intestate as a licensee had conferred upon him 
by the statute and might have exercised in his lifetime, and she may e^ter- 
cise the same authority to transfer, as the representative of his estate. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Civil Service — Reinstatement. 

Nov. 20, 1936. 
Hon. Thomas H, Green, Commissioner of Civil Service. 

Dear Sir : — You have asked my opinion regarding the constitution- 
ality of St. 1936, c. 287, entitled "An Act providing for the reinstatement 
in the classified civil service of retired municipal officers and employees 
in certain cases of invalid retirement." 

I am of the opinion that this statute is one within the power of the 
General Court to enact and that it is constitutional. The enactment is 
remedial in character and may well be said to provide for the discharge 
of a moral obligation of the political subdivisions of the Commonwealth, 
which the General Court has determined ought to be met in the interests 
of the general welfare and the improvement of the public service. 

I answer both your questions in the affirmative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Election — Jurisdiction. 

In connection with the certification of the results of elections the Governor " 
and Council have no authority to inquire into alleged corrupt prac- 
tices. 

Nov. 23, 1936. 

His Excellency the Governor, and the Honorable Council. 

Gentlemen: — Through the Executive Secretary you have requested 
my opinion in the following communication : — 

"By direction of the Governor and Council I forward herewith the 
petition of certain alleged qualified voters of the Fifth Councillor District 
of Massachusetts, requesting the Governor and Council to pass upon 
certain questions relative to the election of Bayard Tuckerman, Jr., as 
Councillor from said district. 

They request your opinion . . . relative to the jurisdiction of the 
Governor and Council in the premises." 

The petition referred to alleges that said Bayard Tuckerman, Jr., vio- 
lated certain provisions of G. L. (Ter. Ed.) c. 55, with relation to state- 
ments of political expenses, expenditures of moneys by political committees 
and corrupt practices at the recent election, and that the petitioners in- 






P.D. 12. 113 

tend to file complaints with the Superior Court and with the Legislature, 
protesting his election by reason of the same. The petition asks that you 
do not issue a certificate of election to said Tuckerman, that you inquire 
at a public hearing for the purpose of determining that such acts have 
l)een conunitted, and that, pending investigation, you refrain from is- 
suing a summons to said Tuckerman setting forth that he appears to have 
been chosen an Executive Councillor. 

I am advised that you are about to examine the returned copies of the 
records for the election of Councillors, for the purpose of issuing summonses 
to those persons who appear to have been chosen to such offices, under 
the provisions of Mass. Const. Amend. XVI and of G. L. (Ter. Ed.) c. 54, 
§§ 115-117. 

I am of the opinion that in the performance of your constitutional and 
statutory obligations to "examine the returned copies of the records for 
the election" and to issue summonses "to such persons as appear to be 
chosen," your duties are purely ministerial in character and do not involve 
going behind the copies of the records of votes cast, laid before you by the 
Secretary of the Commonwealth, nor conducting investigations into the 
alleged corrupt practices or other acts of those voted for, nor delaying your 
official declaration with reference to any one who shall appear to have been 
chosen to the office of Councillor, pending any such investigation or other 
proceeding with relation thereto. 

An opinion to this same effect was rendered to the Governor and Coun- 
cil on November 28, 1932, by one of my predecessors in office, in which 
opinion I concur. Attorney General's Report, 1932, p. 111. 

An examination of the relative constitutional and statutory provisions 
shows plainly that the duty which is laid upon the Governor and Council 
in connection with the certification of the results of elections is, like those 
of other boards of examiners of similar returns, ministerial in character 
and not intended to extend to matters other than those appearing upon 
the face of the returns, nor have the Governor and Council the right to 
delay an official declaration with reference to those elected, pending in- 
vestigation or adjudication of contested matters in connection with the 
election not apparent on the face of the returns. 

Mass. Const. Amend. XVI, in its appUcable part, provides that "the 
governor, with at least five councillors for the time being, shall, as soon as 
may be, examine the returned copies of the records for the election of governor, 
lieutenant-governor, and councillors; and ten days before the said first 
Wednesday in January he shall issue his summons to such persons as 
appear to be chosen, to attend on that day to be qualified accordingly; and 
the secretary shall lay the returns before the senate and house of repre- 
sentatives on the said first Wednesday in January, to be by them exam- 
ined; . . ." 

Article XVII provides that the same procedure shall be followed with 
relation to the other principal officers of the State. 

The General Laws, by appropriate statutes, have made provision for 
the ready execution of the constitutional provisions above cited. These 
do not extend the power of the Governor and Council in connection with 
the returns. They provide that the Governor, with at least five Council- 
lors, shall open and examine the copies of the records of votes cast and shall 
tabulate the votes and determine who appear to be elected to the several 
offices, and transmit to the Secretary of the Commonwealth an abstract 
of such tabulation and determination, that the Governor shall issue a 



114 P.D. 12. 

summons to the principal State officers who so appear to be elected, and 
shall issue certificates to certain others. 

The Legislature has provided that, if a copy of a record of votes is in- 
complete or erroneous, the Governor and Council may order a new copy 
to be made and transmitted to them, but in no section or phrase has it 
extended the power of the Governor and Council further than to act as a 
board to examine and certify the results as shown by the returns of votes; 
and it has been said by the Supreme Judicial Court, in Opinion of ihe 
Justices, 136 Mass. 583, that, in the absence of any specific legislative 
provision therefor, they are without power to recount votes, plainly indi- 
cating that their duties are ministerial and limited to an examination of 
the face of the returns and a declaration as to the officers who "appear to 
be chosen." 

As was said by the Supreme Judicial Court in the case of Luce v. Mayhew, 
13 Gray, 83, with relation to the duties of the board of examiners of county 
votes, the Governor and Council "are not made a judicial tribunal, nor 
authorized to decide upon the validity or the fact of the election, in any 
other mode than by an examination of 'the returns' made to them, accord- 
ing to law." 

The applicable portions of the statute (G. L. [Ter. Ed.] c. 54) read as 
follows : — 

"Section 115. The state secretary shall lay before the governor and 
council the copies of the records of votes cast, with their seals unbroken. 
The governor with at least five councillors shall, as soon as may be, open 
and examine all such copies. They shall tabulate said votes and determine 
who appear to be elected to the several offices, and what appears to be the 
result of the votes on any question or questions, and shall forthwith trans- 
mit to the state secretary an abstract of such tabulation and determina- 
tion. The state secretary, upon application, shall furnish to newspapers 
copies of such abstract. In case of a state-wide recount under section one 
hundred and thirty-five the state secretary shall in like manner lay before 
the governor and council the copies of the amended records received by 
him under said section, and the governor with at least five councillors 
shall, if necessary, revise the aforesaid tabulation and determination ac- 
cordingly. 

Section 116. The governor shall, in the presence of at least five coun- 
cillors, certify to the results of the examination of the copies of the records 
of the votes for governor and lieutenant governor, for councillors, for 
state secretary, state treasurer, state auditor and attorney general, and 
for senators, and shall issue his summons to such persons as appear to be 
chosen to said offices. The governor shall issue certificates of election to 
such persons as appear to be chosen to the offices of senator in congress, 
representative in congress, clerk of the courts, register of probate and in- 
solvency, sheriff and district attorney, which shall be countersigned and 
transmitted by the state secretary. No certification shall be made or 
summons or certificate issued under this section until after five o'clock 
in the afternoon of the fifteenth day following a state election or, in case 
a state-wide recount is held in accordance with section one hundred and 
thirty-five, until the tabulation and determination under the preceding 
section have been revised in accordance with the results of such recount. 

Section 117. After such certification, such copies shall be replaced in 
their respective envelopes and delivered with the certificate of examina- 
tion to the state secretary, who shall on the first Wednesday in Januarj^ 



r.D. 12. J115 

l:iy the samp, with schedules showing the number of ballots cast for each 
person voted for, before the senate and house of representatives. 

Except for the above purposes, all such copies, both original and cor- 
rected, transmitted to the state secretary, shall remain on file in his office 
and be there open to the inspection of any interested person. 

Section 123. If it shall appear to the governor and council, to the 
board of examiners, to the election commissioners or to the county com- 
missioners, that any copy of a record of votes examined by them is incom- 
plete or erroneous, they may order a new copy of the records to be made 
and transmitted to them. Such new copy shall be transmitted by the 
city or town clerk within seven days thereafter, and if found to be correct 
and in conformity to the requirements of law, shall have the same force 
as a first copy." 

The validity or invalidity of the election of a Councillor, for reasons 
such as are set forth in the petition which accompanied your communica- 
tion, may be determined in the courts and there decided by judicial pro- 
ceedings under the provisions of G. L. (Ter. Ed.) c. 55. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Prisoner — Sentence — Release. 

Nov. 23, 1936. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You have advised me of the following facts with relation 
to a certain prisoner: — 

". . . was sentenced on October 31, 1936, by the district court in Som- 
erville, to pa}' a fine of $500 and to be committed to the Billerica house of 
correction for the term of six months, for the offence of the unlawful sale 
of alcoholic beverages in violation of St. 1935, c. 440, § 2. 

On the same day, in the same court, and for a similar offence, he was 
sentenced to pa}' a fine of $500 and to be committed to the Billerica house 
of correction for a term of sLx months, this sentence to take effect from 
and after the expiration of the first sentence." 

You have asked my advice with relation thereto as follows : — 

"1. I should appreciate it if you would advise me whether or not the 
provisions of St. 1932, c. 221, which has to do with the discharge of a 
poor prisoner who is confined on one or more sentences for 'fine or fine 
and expenses only,' would apply in the case of the inmate above referred 
to who received term sentences plus fines. 

2. Also, if the court ordered the release of this man, after he had served 
the first term sentence of six months plus ninety daj's for the nonpayment 
of the fine (provided he took the poor debtors' oath), what would become 
of the second term sentence?" 

The provisions of St. 1932, c. 221, will apply to the prisoner for his 
relief only after he has fulfilled his first sentence in full, both as to the six 
months' term of imprisonment and as to the payment of the fine or the 
passage of time of incarceration provided in lieu of such fine, plus the 
term of his second sentence and added period of ninety days, if the fine 
due under the second sentence has not then been discharged. 



116 P.D. 12. 

G. L. (Ter. Ed.) c. 127, § 146, which was most lately amended by St, 
1932, c. 221, permits a "poor prisoner" to be released from incarcera- 
tion due to nonpayment of a fine only when he is held "under one or 
more sentences for fine or fine and expenses only." The court is to act 
only toward freeing the "poor prisoner" if it finds that he is held for no 
other cause or "if it finds that he is held only for one or more other sen- 
tences for fine or fine and expenses." ^ 

A prisoner cannot be said to be held for fine or fine and expenses only 
until the term of imprisonment which was imposed contemporaneously 
with such fine has expired {Gannon v. Adams, 8 Gray, 395). That being 
so, the court would not appear to have power to release the "poor pris- 
oner" under said section 146 prior to the expiration of his second term of 
imprisonment. 

If my view of the law be correct, the situation outlined in your second 
question could never arise, and hence is hypothetical and is not within 
my province to answer. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Board of Registration of N'urses — Lost Certificate — Replacement. 

Nov. 23, 1936. 
Mr. James J. Sughrue, Director, Division of Registration. 

Dear Sir: — The secretary of the Board of Registration of Nurses has 
asked me, through you, the following question: — 

"Does the Board have any discretion in the matter of a charge for 
replacement of a lost certificate?" 

I answer this question in the negative. The applicable statute, G. L. 
(Ter. Ed.) c. 112, § 88, reads as follows: — 

"... every board of registration or examination established by the 
commonwealth shall — 

(3) Issue a duplicate certificate of registration upon satisfactorj^ evi- 
dence that the original certificate has been lost or destroyed, and the fee 
therefor shall be five dollars." 

It is plain that under the provisions of this statute the Board must be 
satisfied upon the question of fact that the certificate of registration has 
actually been lost or destroyed. It is immaterial how the loss occurred, 
but the decision of the question of fact as to whether or not the certificate 
be lost or destroyed is one which the Board is required to make. If it 
decides that the certificate has been lost or destroyed, it then must issue 
a new one and must collect a fee of five dollars for the same. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 117 

Alcoholic Beverages Control Commission — Package Goods Stores — License 

— Zoning. 

Nov. 23, 1936. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You have advised me that you have, upon appeal, 
ordered the local board of Lynnfield to grant a license for a "package 
goods" store at 45 Lynnfield Street, and that this order was not carried 
out. I assume that a time limit for the carrying out of the order was set 
by you which has now expired. You are apparent^ in doubt as to whether 
or not you should exercise your authority under G. L., c. 138, § 67, as 
amended, and issue a license yourselves. 

If the premises in question are zoned by the town of Lynnfield in such 
a manner that a license to sell "package goods" could not properly be 
exercised thereat, you should not yourselves issue the license. 

G. L. (Ter. Ed.) c. 40, § 29, as amended by St. 1933, c. 269, § 29, pro- 
vides in its applicable part : — 

". . . state and municipal officers shall refuse any permit or license for a 
new use of a building, structure or land which use would be in violation 
of any such [zoning] ordinance or by-law or amendment thereof." 

I am advised that the licensee's building is in a district zoned by the 
town for resident purposes under a by-law of 1929, which by-law, how- 
ever, permits the continued use of a building for the purpose for which 
it was used at the time of the making of the by-law or for any other use 
not more detrimental to the character of the district in which it is located 
than its use at the time of the enactment of the by-law. 

The question which you should determine before deciding whether to 
issue the license is a factual one. It consists of two parts, — (1) what 
was the use prior to the passage of the by-law; and (2) is the use of the 
building as a licensed "package goods" store more detrimental to the 
character of the district in which it is located than the prior use. The 
Attorney General does not pass upon questions of fact; that is peculiarly 
the province of your Commission. If you determine that the proposed 
use will be "more detrimental to the character of the district" in which 
the premises of the licensee are located, you should not issue the license; 
on the other hand, if you determine that the proposed use will not be 
more detrimental, you may properly exercise your authority to issue the 
license. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Retirement System — Librarians — Private Free Libraries. 

Nov. 24, 1936. 

Miss E. Louise Jones, Secretary, Board of Free Public Library Com- 
missioners. 

Dear Madam : — In reply to 3''our request relative to persons whom 
you describe as working for free public libraries "not owned or controlled 
by the city or town," it does not appear from your statements that any 
of such persons come within the definition of "employee" as used in G L 
(Ter. Ed.) c. 32, § 26, as amended by St. 1936, c. 318. 



118 P.D. 12. 

The retirement system of cities and towns established by said chap- 
ter 32, as amended, does not embrace persons who are not regularly 
employed in the service of a city or town nor those whose salaries or com- 
pensation are not paid by such municipalities. Said chapter 32, section 
26, as amended, provides that "in all cases of doubt" the retirement 
board provided by section 3 IF of chapter 32, to administer the retire- 
ment system, "shall decide who is an employee." v 

Very truly yours, 

Paul A. Dever, Attorney General. 

Municipalities — Eminent Domain — Rifle Ranges. 

Nov. 30, 1936. 
Brig. Gen. William I. Rose, The Adjutant General. 

Dear Sir: — You have in effect requested my opinion as to "whether 
or not a town has the power to take by eminent domain land situated in 
another town for the purpose of a rifle range, under the provisions of G. L. 
(Ter. Ed.) c. 33, § 37." 

G. L. (Ter. Ed.) c. 33, § 37, reads as follows: — 

"The aldermen or the selectmen shall provide and maintain for each 
command of the volunteer militia or detachment thereof permanently 
stationed within the limits of their respective towns suitable grounds for 
parade, drill and small arms practice, unless such grounds have been fur- 
nished for such command by the commonwealth. Any town failing to 
comply with this provision shall forfeit to the commonwealth a sum not 
exceeding five thousand dollars for each year during which such failure 
continues, to be recovered upon an information in equity brought in the 
supreme judicial court by the attorney general at the relation of the adju- 
tant general. Any amount so forfeited shall be credited to the appropria- 
tion for small arms practice for the fiscal year in which the forfeiture occurs. 
When two or more commands of the volunteer militia are permanently 
stationed in the same town, the aldermen or the selectmen may, if practi- 
cable, provide for such commands suitable grounds for parade, drill and 
small arms practice, to be used by them in common. Land for drill and 
parade grounds and for ranges for small arms practice may be acquired 
by purchase or lease, or under chapter seventy-nine. Towns where 
headquarters, commands or detachments of the volunteer militia are 
permanently stationed may raise money by taxation or otherwise for the 
acquisition of land for drill and parade grounds or ranges for small arms 
practice or for complying with sections thirty-five and thirty-eight." 

Municipalities have the power to acquire by purchase land situated in 
other municipalities. Somerville v. Waltham, 170 Mass. 160. Munici- 
pahties do not, however, have the power to take land outside their own 
boundaries by eminent domain without specific legislative authority. 

I am of the opinion that the permission given in the above-quoted sec- 
tion of chapter 33 relative to takings under G. L. (Ter. Ed.) c. 79, the 
general statute concerning eminent domain, does not indicate an intent 
on the part of the Legislature to authorize takings by the use of the sover- 
eign power of eminent domain outside the jurisdiction of the municipality. 

Very truly yours, 

Paul A. Dever, Attorney General. 



r.D. 12. 



119 



INDEX TO OPINIONS 



PAGE 

83 
117 
110 

19 
111 

Gl 



Airports; municipal regulations; refusal of use . 
Alcoholic l^everages; package goods stores; zoning . 

Tavern; entrances 

Transfer of license; appeal <C 

Deceased licensee 

Armory Commission; State quartermaster; National Guard 

Auditor of the Conunonwealth; duty to audit accounts; State Retirement 

Association 107 

Town agent 109 

Unemployment Compensation Commission 107 

Banking institutions; loans; National Housing Act 52 

Barbers; regulation of hours of labor 57 

Bicycles; renting and use on the Lord's Day 79 

Chiropodist; certificate of registration; renewal 56 

Civil service; assistant state hospital stewards; mode of appointment . 109 

Charitable institutions; civil service rule 79 

Disabled veteran; preference 71, 78 

Proof of disal:)ility 2-1, 49, 76 

Employees of Salem and Beverly Water Sui)ply Board; power of removal 34 

Established list; eligibility 59 

Police officer; municipal ordinance 55 

Probationary period; permanent intermittent employees .... 78 

Provisional appointment; veterans' preference; requisition calling for 
women 

Reinstatement of retired municipal officers and employees 

Reserve police officer; removal 

Rules and regulations; employee of private contractor; work taken 

by the Commonwealth 

Salaries of appointees to classified service 

Transfers; permanent and temporary employment 

Seniorit}''; date of transfer of employee 

\"acancy in a police department; reserve officer .... 

Veteran; preference; "time of war" 

Commonwealth; liability for damages; forest roads .... 
Constitutional law; barbers; regulation of hours of labor 

Civil service ; reinstatement of retired municipal officers and employees 

Commitment of insane; experts .... 

Dry cleaning and dyeing plants; licenses; supervision 

Eminent domain; school committee; park lands 

Transportation of school children to schools other than public schools 

Contracts; bids; hours of work 

Correction, Commissioner of; authority to remove one convicted of murder 

from a county jail to the State Prison 65 

Corrupt practices; nominations; State conventions 57 

Counties; cities and towns; reimbursement for salaries; dog officers . . 51 

Special justices; compensation; reimbursement 75 

County Retirement Association; probation officer; court officer ... 61 
Elections; Governor and Council; jurisdiction 112 

Nomination papers; designation of candidates 33 

Special statutory pro\'ision; city of Marlborough 53 

Electricians; master electricians; journeymen 32 

Embalming, Board of Registration in; members; registered embalmer . . 106 

Fines; disposition; illegal parking of motor vehicles 64 

Firearms; permits; " persons ' 74 



69 
43, 112 

. 58 



48 

105 

108 

26 

50 

30 

18 

57 

112 

44 

70 

38 

40 

25 



43 



120 P.D. 12. 

Flood relief; removal of silt; interpretation of statute .... 

Retrospective effect of statute 

Hairdressers, Board of Registration of; rules and regulations; price lists 

Registration of hairdressers; license; exemptions 

Health, local boards of; bottling of spring water; permits 
Housing corporation; eminent domain; right to mortgage 
Industrial Accident Board; list of surgeons, orthopedists and biological 
chemists to be furnished by the Board of Registration in Medicine 

Member; leave of absence 

Insurance; standard fire policy; reinsurance 

Insurance companies; loans; National Housing Act 

Legislature; member; salaries 

Lord's Day; renting and use of bicycles 

Marriage; authority of certain judges to waive requirements of the five-day law 

Nonresident; laws of foreign States 

Medicine, registration in; quahfications of applicants .... 
Metropolitan District Water Supply Commission; contract; extension 

invalidity 

Milk Control Board; authority over intrastate milk and foreign milk 

Motor vehicles ; fines; disposition; illegal parking 

Metropolitan District Commission 

Municipal election; vote on suspension of St. 1934, c. 275, § 105B . 
Municipality; eminent domain; rifle ranges 

Laborers; vacation 

Reimbursement for transportation of school children .... 

Retirement system; librarians; private free libraries .... 

Sewage disposal works; approval; permit 

Nurses, Board of Registration of; lost certificate; replacement 

Member; superintendent of Worcester State Hospital; compensation 
Pardon; fine and imprisonment; Board of Parole 

"Persons"; interpretation 

Prisoner; attempt to escape; penalties .... 

Sentence; release 

Public Health, Department of ; shellfish; certificates; approval 
Public Utilities, Department of; interstate commerce; permit to operate 
Public works; contracts; preferences for veterans and citizens 
Registered physician; sale of eyeglasses; practice of medicine 

Rifle ranges; municipalities; eminent domain 

Right of way ; acquisition by prescription 

Savings bank life insurance; agencies; co-operative banks 
School committees; authority to take land for athletic field 

Exchange teachers; retirement payments 

Superintendent of schools; choice and assignment of teachers 

Schools, public and private 

State employee; member of the Legislature; salaries .... 

State retirement system ; employee ; age of retirement . . . 

Statute, effective date; emergency measure 

Teachers' oath; aliens; private school; teachers; employees . 

Public and private schools . .' 

Teachers' Retirement Association; application for retirement; withdrawal 
rules 

Exchange teachers 

"Time of war"; interpretation 

Transportation of school children to schools other than public schools . 

Veteran; proof of disability ■ 24,49, 

Veterans' preference; contracts for public works; veterans and citizens 

Disabled veteran 71, 

Provisional appointment uncier civil service 

"Time of war" 



P.D. 12. 121 



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 Commonwealtli, 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 ju-tice 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 commis-^ion thereof, and is found in the State upon which the 
requisition was made, shall be sufficient evidence, in the absence of other proof, 
that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in duplicate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and circum- 
stances showing the commission of the crime charged, and that the accused perpe- 
trated the same, must be shown by affidavits taken before a magistrate. (A notary 
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 



122 P.D. 12. 

requisition, such complaint to be accompanied by affidavits to the facts consti- 
tuting the offence charged by persons having actual knowledge thereof, and that 
a warrant has been issued, and duplicate certified copies of the same, together 
with the returns thereto, if any, must be furnished upon an application. The 
affidavit or affidavits should contain sufficient facts to make out a prima facie case 
of guilt, and should not be a reiteration of the form of the complaint nor contain 
conclusions of law. 

5. The official character of the officer taking the affidavits or depositions, artd 
of the officer who issued the warrant, must be duly certified. 

6. Upon the renewal of an application, — for example, on the ground that 
the fugitive has fled to another State, not having been found in the State on which 
the first was granted, — new or certified copies of papers, in conformity with the 
above rules, must be furnished. 

7. In the case of any person who has been convicted of any crime, and escapes 
after conviction, or while serving his sentence, the application may be made by 
the jailer, sheriff, or other officer having him in custody, and shall be accom- 
panied by certified copies of the indictment or information, record of conviction 
and sentence upon which the person is held, with the affidavit of such person 
having him in custody, showing such escape, with the circumstances attending 
the same. 

8. No requisition will be made for the extradition of any fugitive except in 
compliance with these rules. 

850-8-'37. No. 9698. 



JUL 2 4 '41 w.P^