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

Public Document 



No. 12 



Cbe Commontoealtl) of ^aiamcbmtm 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1937 




Public Document 



No. 12 



Cfte Commontoealt!) of q^a0$act)U0ett0: Attorn* 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1937 



1 




■vs.. 



SrHTELfBMRT.OFMflSSACHlJSETTS 
F£B 2 1939 



Cfje Commontoealtft of 0ia$0acl)U0ett0 



Department of the Attorney General, 
Boston, January 19, 1938. 

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, 1937. 

Very respectfully, 

PAUL A. DEVER, 

Attorney General. 






STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Year. 

General appropriation for 1937 $151,451 64 

Balance brought forward from 1936 appropriation .... 397 58 

Appropriation for small claims 8,000 00 

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

$171,849 22 

Expenditures. 

For salary of Attorney General $8,000 00 

For salaries of assistants 61,731 30 

For salaries of all other employees 37,789 74 

For sheriffs' fees, court stenographers and all other special services . 31,833 91 

For law Ubrary 886 00 

For office expenses and travel 9,362 43 

For court expenses 809 44 

For small claims 7,949 64 

For claims under G. L. (Ter. Ed.) c. 12, § 3B 12,149 31 

Total expenditures $170,511 77 

Balance $1,337 45 

Financial statement verified. 
Approved. 

GEO. E. MURPHY, 

Comptroller. 



®lj^ ©ummonm^altli af MuBBntl^UBtttB 



DEPARTMENT OF THE ATTORNEY GENERAL. 
State House. 



Attorney General. 
PAUL A. DEVER. 



Assistants. 



James J. Ronan. 
Henry P. Fielding.^ 
Edward 0. Proctor.^ 
Roger Clapp. 
John S. Derham. 
Arthur V. Sullivan. 
Maurice M. Goldman, 
Edward McPartlin. 
Walter W. O'Donnell. 
Raymond H. Favreau. 
James J. Bacigalupo. 
Raymond E. Sullivan. 
William J. Landergan.^ 
Donald R. Simpson.^ 
Mary Sienkiewicz Dumas. 

Cashier. 
Harold J. Welch. 



' Resigned January 6, 1937. ' Appointed December 1, 1936. 

« Appointed January 5, 1937. * Resigned Ontober 31, 1937. 



I 



0i|^ Ol0mmottmfBltI| of ifflaaaarljua^ttfii 



Department of the Attorney General, 
Boston, January 19, 1938. 

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, 1937, to the number of 8,161 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 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 fihng 

of returns by corporations and individuals and the collection of money 

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

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

Disposed of . . . . . . . . . . .11 

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



659 
128 

74 

390 
2 

4 

4 

52 

40 

582 

67 

443 

21 



5,673 
22 



6 P.D. 12. 

Suggested Amendment to the Law relative to Criminal Investigations 

and Related Matters. 

In order that the pending investigation growing out of organized crime, so 
called, gangsters and their associates, may be carried on speedily, unremittingly 
and effectively, as the Attorney General, I am respectfully requesting that in the 
present emergency I be vested with power, which now is not entrusted to me, to 
conduct an immediate investigation of matters concerning public peace and 
public safety, without which an exhaustive investigation designed to check and 
remedy existing evils cannot be expeditiously conducted. 

New and effective modes of procedure must be installed by the General Court 
to meet the present threat of organized professional criminals, and the law en- 
forcement officers must immediately be given adequate power to carry on their 
investigations and activities. 

For these reasons, I am submitting herewith drafts for legislation which would 
empower me to carry on ex parte investigations concerning the commission of crimes 
and abuses of a criminal nature, and, as incident thereto, give me the power to 
summon witnesses and to examine them under oath in any independent inquiry 
the Attorney General may institute, with authority to delegate the carrying on 
of the whole or any portion of such inquiry to any of my staff or any of the Dis- 
trict Attorneys whom I may select. This legislation would give to me or to 
those to whom I may delegate it, the authority to grant immunity from prosecution 
to witnesses who give testimony relative to the commission of certain criminal 
acts. Obviously no exhaustive or effective investigation designed to remedy 
any of the existing evils to which I have alluded can be conducted effectively by 
the Attorney General unless he has such power. 

I respectfully call your attention to the fact that there is a precedent for such 
power. In recent years the Attorney General was given this authority in the 
so-called Garrett investigation, and more recently, in 1936, the courts were given 
this power by chapter 242 of the Acts of 1934. I have suggested in this legislation 
that this power be terminated in January of 1939, and have made this suggestion 
in view of the fact that I feel this power necessary only in the present emergency. 

I am also requesting the Legislature to liberalize the law concerning the change 
of venue. The theory and practice prevailing in England at the time of the settle- 
ment of this Commonwealth were to secure indictments and to conduct the trial 
in the county where the crime was committed. The trial court, however, always 
had authority to transfer the trial to another county if the interests of justice 
so required. It is settled in this Commonwealth that the Superior Court has the 
power to grant a change of venue. Crocker v. Justices of the Superior Court, 208 
Mass. 162. The exercise of that power in capital cases is recognized by G. L., 
c. 277, § 51. 

While the power to change the place of trial is inherent in the Superior Court, 
yet it has been sparingly exercised, and only then when it is shown that a fair and 
impartial trial cannot be had in the county in which the alleged crime was 
committed. Usually it has been the defendant who has requested a change of 
venue. There, however, are instances where the Commonwealth, in the interest 
of justice, should be granted a change in the place of trial. Such a change should 
be made, unless cause to the contrary be shown, if the Attorney General acting 
upon his solemn responsibility makes oath that the ends of justice necessitate a 



P.D. 12. 7 

change in the place of trial. No inconvenience or injustice will be imposed upon 
a defendant by compelling him to stand trial in some remote county of the Com- 
monwealth, as the bill now suggested is limited to a transfer to an adjoining 
county. 

I am therefore recommending the enactment of legislation covering this subject. 

This program is indispensable to the effective administration of our laws. It 
is, however, in no waj'^ intended to relieve local police units of their responsibility. 
There is no intention on the part of the Attorney General to supersede any local 
authority in a community which has a police force which has not broken down. 
These powers, if granted, will be used in co-operation with local officials. Their 
responsibility is primary and binding. 

In view of the recent situation which has been uncovered in Revere, evidence 
of which is already in my possession, of glaring malfeasance, misfeasance and 
nonfeasance in the administration of the Mayor's office, action for his removal 
appears to be absolutely necessar3^ Under the present law no method of removal 
exists. A deplorable state of affairs appears to be now existing and to have existed 
for the past two and one half years. A decadent civic spirit and a degenerate 
municipal consciousness cannot help but remain passive under the present 
circumstances. 

I am suggesting, therefore, an amendment to the law which would give a ma- 
jority of the justices of the Supreme Judicial Court the right to remove from 
office the mayor of any city if after hearing sufficient cause therefor is shown, and 
it appears that the public good so requires. 

I am also submitting a draft for legislation which would authorize the setting 
up of a special grand jury drawn from the entire Commonwealth for the hearing 
of criminal cases which in the opinion of the Attorney General could be more 
effectively disposed of by such a state- wide jury. This recommendation follows 
somewhat the situation in the neighboring State of New York, where the District 
Attorney of the County of New York has the right to select his own grand jury 
and petit jury in the trial of criminal cases of a nature similar to those with which 
we are deafing. 

An Act relative to Certain Investigations by the Attorney General concern- 
ing THE Commission op Crimes and Criminal Activities. 

Whereas, The deferred operation of this act would tend to defeat its purpose, there- 
fore, it is hereby declared to be an emergency law necessary for the immediate preser- 
vation of public convenience. 

Be it enacted, etc., as folloivs: 

The attorney general may, if in his judgment the public interest so requires, 
conduct ex parte investigations concerning the commission of crimes and criminal activi- 
ties of organized crime, and incidental thereto shall have the power to require by sum- 
mons the attendance and testimony of witnesses, and the production of books and papers 
relating in any way to such investigation, in the manner provided in chapter two hun- 
dred and thirty-three of the General Laws. No person shall be excused from attending 
and testifying in the course of such investigation or from producing any books, papers 
or documents before the attorney general on the ground that his testimony or evidence, 
documentary or otherwise, may tend to criminate him or subject him to a penalty or 
forfeiture, but he shall not be prosecuted or subjected to penalty or forfeiture for or on 
account of any action, matter or thing as to which he may be required to testify or 



8 P.D. 12. 

produce evidence, documentary or otherwise, in the course of such investigation, except 
for perjury committed in such testimony. 

The attorney general shall have authority to delegate any of the powers herein con- 
ferred upon him to any assistant attorney general and to any of the several district 
attorneys whom he may appoint to assist him in the conduct of such investigation, who 
shall thereupon have the same powers as are herein conferred upon the attorney gen- 
eral, but subject always to his direction and control. 

Nothing in this act shall be construed as diminishing the powers and duties of dis- 
trict attorneys and other prosecuting agencies fixed by law. The powers granted to the 
attorney general under this act shall be terminated as of January fifteenth, nineteen 
hundred and thirty-nine. 

An Act relative to the Change of Venue in Criminal Cases. 
Be it enacted, etc., as follows: 

Chapter two hundred and seventy-seven of the General Laws is hereby amended by 
inserting after section fifty -one the following new section : — 

Section 51 A. The superior court upon the petition of the attorney general supported 
by his affidavit that he is of the opinion that the trial of an indictment or complaint then 
pending before said court should be transferred to an adjoining county shall grant such 
petition unless good cause to the contrary is shown by the person or persons named in 
the said indictment or, complaint, and thereupon the provisions of sections fifty-two, 
fifty-three and fifty-four of said chapter two hundred and seventy-seven shall apply to 
the trial of the case in the county to which it has been transferred. 



An Act providing for the Removal of Mayors of Cities by the Justices of the 
Suireme Judicial Court in Certain Cases. 

Be it enacted, etc., as follows: 

Section four of chapter two hundred and eleven of the General Laws is hereby amended 
by striking out, in the seventh line, the word " or " and inserting in place thereof a comma, 
— and by inserting after the word "attorney" in the same line the words: — or mayor 
of a city, — so as to read as follows: — Section 4- A majority of the justices may, if in 
their judgment the pubHc good so requires, remove from office a clerk of the courts or 
of their own court ; and if sufficient cause is shown therefor and it appears that the public 
good so requires, may, upon a bill, petition or other process, upon a summary hearing or 
otherwise, remove a clerk of the superior court in Suffolk coimty, or of a district court, a 
county commissioner, sheriff, register of probate and insolvency, district attorney, 
mayor of a city or chief of police of any city or town. 

An Act providing for Special Grand Juries. 

Whereas, The deferred operation of this act would tend to defeat its purpose, there- 
fore, it is hereby declared to be an emergency law, necessary for the immediate preser- 
vation of the public convenience. 

Be it enacted, etc., as follows: 

Chapter two hundred and seventy-seven of the General Laws is hereby amended 
by striking out section two A and inserting in place thereof the following: — 

Section 2 A. The clerk of courts of each county, and in Suffolk the clerk of the su- 
perior court for criminal business, shall, upon the written request of the attorney general, 
accompanied by a certificate that public necessity requires such action, signed by the 
chief justice of the superior court, issue writs of venire facias for two grand jurors from 



P.D. 12. » 

their respective counties for service as a special grand jury, consisting of twenty-eight 
grand jurors, to hear, consider and report on such matters as the attorney general may 
present, and in such county as the attorney general may designate for a hearing. Said 
jurors shall serve for a period of six months unless sooner discharged by the attorney 
general or by the said chief justice, and shall have the same powers and receive the same 
compensation as grand jurors under the provisions of sections four to fourteen. 

All expenses incurred in carrying out the provisions of this act shall be paid from the 
treasury- of the commonwealth. 

Music and Entertainment furnished with Meals on the Lord's Day. 

There has been considerable doubt and misunderstanding by licensing authorities 
as to the correct application of the provisions of G. L., c. 136, § 4, to concerts 
of music and entertainment provided for patrons of hotels, restaurants, clubs and 
similar establishments where food or drink is sold on the Lord's Day. 

The said section in its present form provides: 

Except as provided in section one hundred and five of chapter one hundred and forty- 
nine, the mayor of a city or the selectmen of a town may, upon wTitten application de- 
scribing the proposed entertainment, grant, upon such terms or conditions as they may 
prescribe, a hcense to hold on the Lord's day a pubUc entertainment, in keeping with 
the character of the day and not inconsistent with its due observance, to which admis- 
sion is to be obtained upon payment of money or other valuable consideration; pro- 
vided, that no such license shall be granted to have effect before one o'clock in the after- 
noon, nor shall it have effect unless the proposed entertainment shall, upon application 
accompanied by a fee of two dollars, have been approved in writing by the commissioner 
of public safety as being in keeping with the character of the day and not inconsistent 
with its due observance. Any such Hcense may, after notice and a hearing given by the 
mayor or selectmen issuing the same, or by said commissioner, be suspended, revoked 
or annulled by the officer or board giving the hearing. 

It is plain that the section in its present form is limited to entertainments for 
which an admission is charged, and in hotels and restaurants the music and other 
entertainment furnished guests are a kind of ser\dce furnished to patrons for which 
payment is included in the purchase price paid for the food and commodities served 
to the patroas, and the patrons pay for such food and other commodities but pay- 
nothing on account of being permitted to enter the establishment where the music 
or other entertainment is pro\ided. 

If it be the desire of the General Court to require that the furnisMng, on the 
Lord's Daj', of such music or entertainment with meals, by hotels, restaurants, 
clubs and other similar establishments should be subject to a license, an amend- 
ment to said section -4 should be enacted clarifying its present pro\dsions and making 
them by specific terms applicable to such concerts and entertaiimients to which no 
actual admission fee is charged by the proprietors. 

Investigation in the Matter of Abuse of Process by Deputy Tax Collectors 

and Constables. 

As a result of numerous complaints made to this Department an investigation 
was undertaken of the methods employed by deputy tax collectors and constables 
throughout the Commonwealth in collecting poll, excise and old age assistance 
taxes. This investigation revealed flagrant abuses of power by many deputy tax 



10 P.D. 12. 

collectors and constables, whose actions in many instances seem to have been 
condoned, and in other instances openly approved, by the various city or town 
collectors appointing them. 

It was found that many deputy tax collectors and constables are totally unfitted 
to fairly and impartially perform the duties of their office. Hiding their nefarious 
practices behind the badge of their office, they intimidate taxpayers into paying 
to them illegal and extortionate fees. They are not principally motivated in their 
actions by a desire to aid in the collection of the pubhc revenues, but are concerned 
primarily in increasing the profits inuring to themselves through the "fees" they 
extract "under threat of arrest and imprisonment" for the collection of these 
taxes. These deputy tax collectors are appointed by the various city and town 
tax collectors, who aid them in many instances under suspicious arrangements. 
Many cases were brought to light during the course of the investigation of collec- 
tors themselves collecting the taxes, including the deputy's fees, for the various 
deputies they themselves appointed, using the facilities of the cities and towns 
therefor, yet charging the taxpayer for non-existent services of the deputies, — 
services which the collector himself performed, but for which the taxpayer was 
forced to pay added fees never intended nor contemplated by law. 

Upon the receipt of a tax warrant the deputies in many instances intentionally 
and maliciously neglected to send the taxpayer notice thereof, being actuated by 
a greedy desire for the additional fees which they receive if the taxpayer is 
"arrested" or alleged to be "arrested" and taken into custody, knowing that by 
law the nonreceipt of the notice of warrant will not prevent its execution. Nor 
do they keep records of the notices sent, and, in fact, few records of any descrip- 
tion at all are kept by them. 

They collect these taxes armed with a most potent weapon, — the power to 
arrest and commit the taxpayer to jail, and they use this power for purposes 
never prescribed by law. 

Their practice is to go to the home of the taxpayer, usually late at night, 
accompanied by what they call a "witness" who is, however, armed with 
"twisters," handcuffs and similar instruments designed to bring pressure to bear 
upon the taxpayer and to frighten him into paying whatever is demanded. Depu- 
ties work in consort with these so-called witnesses, who are generallj^ other 
deputies, and di\dde the fees collected. They immediately, without pre^^ously 
ascertaining whether the taxpayer is willing to pay the tax, or searching for his 
goods and chattels upon which to levy, as provided by law, place him under 
arrest and threaten him with immediate commitment to jail unless he pays them 
the sums they demand, refusing him a reasonable opportunity to furnish bonds. 

Because of their menacing tactics many a terrified taxpayer, not apprised of 
his legal rights, pays the extortionate sums demanded, even if, as it appeared in 
some instances, he has already paid the tax but has not retained his receipts. 

In such cases a warrant may still be issued by the collector for liis arrest, and 
protests on the part of the taxpayer are met with obdurate and reiterated tlireats 
and demands for the pajrment of the taxes, together with the fees demanded, 
without regard to the possibility that they are extorting from him payment for 
a tax which he no longer owes. 

The practice of not filling out the required returns upon the warrants entrusted 
to the deputies is general, and, if done at all, is done in such a perfunctory and 
grossly negligent manner as to leave the returns meaningless and inadequate as a 



P.D. 12. 11 

means of ascertaining the action taken by the officer thereunder. Deliberate 
falsifications of these returns were found, ^vith erasures being made thereon in an 
attempt to conceal the officer's actions thereunder. 

Thus, in some cases the warrant returned showed that the taxpayer had been 
arrested upon a date when he was not within the Commonwealth, or that he 
had not been arrested when, in fact, he had paid the deputy six dollars for arrest 
and custody, plus the mileage charges. 

In many instances the deputies immediately upon the receipt of these warrants 
filled in the amount of their fees in advance, including those for arrest, custody 
and mileage, before ascertaining what action would have to be taken to collect 
the taxes. Demanding the tax, together with these illegal predetermined fees as 
soon as they contact the taxpayer, they refuse to itemize the amount demanded, 
since they realize that they are guilty of the crime of extortion in thus demanding 
in advance, under color of their office, fees which are not yet due. They insist 
upon payment of whatever they demand under threat of immediate commitment 
to jail. 

Many instances were found where property of the taxpaj^er of a value far in 
excess of the amount of the tax was seized without any notice whatsoever to the 
taxpayer, sold by a deputy to a friend of his, and the low amount received, ex- 
cepting the amount of the tax, taken by the deputy by the process of adding 
fictitious costs and fees to the tax, to the end that the taxpayer received nothing 
from the sale of his property. 

Where a deputy tax collector has in his possession several warrants against the 
same taxpayer, all are usually executed at the same time with separate charges 
made on each for warrant, notice, arrest, custody, and mileage. Or, in the 
alternative, the deputy executes each warrant on successive days, but making 
these same charges on each. Thus where the deputy seeks to collect two excise 
taxes amounting to six dollars in the aggregate, the amount he demands may be 
in excess of thirty dollars, of which twenty-four dollars may finally be retained by 
the deputj^ tax collector for his own services. 

A more severe instance of excessive and unjust charges is where the deputy 
seeks to collect an old age assistance tax amounting to two dollars in the aggre- 
gate, on which he may demand, and, under threat of immediate commitment to 
jail, receiv^e, more than seventeen dollars, of which fifteen dollars may be retained 
by him as his fees for collecting the original old age assistance tax of two dollars. 

Many taxpayers victimized by the methods employed by these deputies and 
constables turn to this Department upon their failure to otherwise obtain reUef, 
and hundreds of complaints are in its possession. Others have preferred 
charges against these deputies and constables, but have requested that their 
names be not divmlged, so that they may avoid pubUcity and keep from their 
friends and neighbors the knowledge of their arrest for nonpajmient of taxes. 

I delegated an assistant attorney general to conduct an investigation into this 
matter, instructing Mm, among other things, to appear before the association of 
these deputy tax collectors, in an endeavor to persuade them to curb immediately 
these abuses. 

They formulated a plan to do so, which was never carried out, but, on the con- 
trary, continued with their ruthless practices. 

Therefore, in order to alleviate this situation, this Department preferred to the 
Commissioner of Corporations and Taxation charges of gross misconduct in the 



12 P.D. 12. 

performance of their duties against twenty deputy tax collectors, requesting imme- 
diate hearings, and their removal forthwith, under the provisions of G. L., c. 60, 
§ 92, advising the Commissioner that similar charges would be brought against 
many others similarly derelict and grossly malfeasant in the performance of their 
duties. Of those thus named, lengthy hearings have been completed in the cases 
of three deputies. 

In order to effect permanent relief and to safeguard the liberties of the citizens 
of this Commonwealth from unnecessary arrests and harassments by deputies 
and constables, and in order to aid in the more effective collection of the public 
revenues, I recommend that legislation be enacted changing the present system of 
collecting automobile excise taxes to provide that upon the failure to pay such tax, 
upon notice by a collector of taxes of a city or town, the Registrar of Motor Vehicles 
shall revoke a taxpayer's registration and license, or the Registrar of Motor Ve- 
hicles shall refuse to register an automobile unless evidence of the payment of 
prior taxes is exhibited, as the Legislature may see fit to enact, to the end that the 
collection of excise taxes shall no longer be enforced by the arrest and imprison- 
ment of the taxpayer, and that these abuses shall be permanently eliminated. 
By the adoption of either of these methods there will be a substantial increase in 
the revenues accruing to the Commonwealth. 

I further recommend that in the collection of poll taxes and old age assistance 
taxes no arrests be permitted whatsoever, but that the taxes shall be collected by 
court action, preferably in our small claim court, so called, wherein jurisdiction 
is manifestly present. 

This should be done in an effort to prevent the promiscuous and unnecessary 
addition of charges to the original tax by decreasing the amount personally to be 
gained by the deputies and constables. 

Further, since the collection of these taxes is essentially a local matter, they 
should be collected by constables and deputy collectors operating within the 
locality in which the taxpayer lives. There is no need for a deputy tax collector 
from the city of Boston to travel to North Adams to collect either a two dollar 
excise tax or a one dollar old age assistance tax, increasing the costs to the taxpayer. 

Therefore, I recommend that these taxes be collected only by local officers who 
know local persons and conditions. I believe that such changes, if accompanied 
by the more general appointment of deputy collectors and constables of a higher 
caliber, will permanently eliminate and prevent the recurrence of these abuses. 

Small Loan Agencies. 

I again direct the attention of the Legislature to a present abuse existing 
under the operation of G. L., c. 140, § 96, which was enacted to protect the 
borrower from paying excessive rates of interest on small loans. Small loaios have 
been defined by this act as loans of three hundred dollars or under. G. L., 
c. 140, §§ 96 to 111, inclusive. 

Agencies engaged in the so-called small loan business hold themselves out to 
the public as being bonded, licensed and under the supervision of the Department 
of Banking and Insurance, yet are able to defraud small borrowers by means of 
schemes which they have evolved to defeat the purposes of the act. 

When a wage earner, forced by urgent necessity, attempts to borrow money at 
one of these agencies, he does so thinking that they are under the complete 



P.D. 12. 13 

supervision of the Commonwealth. He thinks only of the principal sum he needs, 
and, because of his dire necessity, makes no inquiry as to the interest to be charged, 
beheving that the rates will be in accordance with the law of our Commonwealth 
because of the fact that the agency holds itself out as being under the supervision 
and control of the Commonwealth. 

These agencies realize this, and with a view to defeating the very purpose 
of the statute, and to depriving the borrower of the protection which the 
Legislature has attempted to grant him, make to him a loan of three hundred 
and one dollars, thus taking the loan out of the operation of the act and permitting 
them, without any regulation and supervision whatsoever, to charge him whatever 
interest thereon his necessity forces him to pay. The borrower does not and 
cannot realize that his loan is no longer under the supervision of the Department 
of Banking and Insurance, but continues to believe that since the agency has so held 
itself out, he is being charged only such rates of interest as are determined by the 
Commissioner of Banks. 

These practices have caused great suffering and hardship to many unfortunates 
whose sole misfortune is their need of ready money with which to pay for the neces- 
saries of life, while the agencies are thus afforded the opportunity of obtaining 
usurious charges. 

I therefore recommend the enactment of legislation changing the amount of 
three hundred dollars to at least five hundred dollars, as defined by G. L., 
c. 140, §§96 and 110, as the business of making small loans. 

This change will result in added protection to the small borrower and prevent 
the present evasion of the law by these small loan agencies. 

Nurses' Employment Agencies. 

As a result of numerous complaints, the attention of this Department has been 
directed to the operation in tliis Commonwealth of the so-called Nurses' Registries. 
Investigation has revealed that, due to a lack of any supervision whatsoever by 
governmental authority, most of these agencies have, by common concert, adopted 
deleterious and iniquitous methods of doing business which seriously injure and 
hamper those persons engaged in the nursing profession, and consequently threaten 
to impair and endanger the health and welfare of the citizens of this Commonwealth. 

These agencies make it their practice to prey upon the unsuspecting nurse, and, 
because they command the market for such professional services, are able to force 
those desiring employment in this profession to register with them. For this 
registration, they require in advance the payment of the so-called registration 
fees, which are exorbitant and unreasonable, and payable regardless of whether or 
not any aid is rendered to the registrant by way of finding her a position. Not 
content with these registration fees, they also charge the registrant a fee for each 
case upon which she works. Tliis "per case fee" amounts to a large proportion of 
the total sum which the nurse receives for her professional services rendered in the 
case, and is exacted even though she is recalled to the same patient without the 
aid of the agency, but solely because of her own abihty and merit. 

Besides these registration and per case fees, most of the agencies also maintain 
living quarters for these nurses. These the nurse is forced to occupy as a condition 
attached to her registration. But the board and lodgings furnished are inferior in 
quality to those which might be obtained elsewhere, yet the prices charged the 



14 P.D. 12. 

registrant therefor are far in excess of their true value. Because of these registra- 
tion fees, per case fees, and board and lodging charges the registrant is constantly 
in debt to the agency, which is the desired purpose of the agency. They then 
furnish the nurse with sufficient work to pay at least part of the sum due the agency, 
but no more. 

Thus the profession of nursing is being exploited by these employment agencies 
for their sole profit and gain without regard for the future advancement and even 
continuance of the profession within this Commonwealth. The common, grievous 
methods employed by these agencies force those who would engage in this pro- 
fession to comply with their outrageous demands. 

The nursing profession is a necessary and vital adjunct to the medical profes- 
sion. And the maintenance of its status as an independent profession is essential 
to the health of the people of this Commonwealth. This exploitation of those 
engaged in so earnestly and capably striving to serve the public weal should be 
stopped. 

I therefore recommend — and in this recommendation the Massachusetts Tech- 
nical and Commercial Employment Association joins — that chapter 140 of the 
General Laws be amended in such a manner as to provide for state supervision and 
regulation of the activities of those agencies within the Commonwealth engaged 
in securing employment for nurses, to the end that the current abuses may be 
curbed. 

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 fisted. This 
method by agencies was intended to shame the debtor into paying even an unjust 
obfigation, and tends to deprive him of an opportunity to set up a legal defence. 
(See Reports of the Attorney General, 1935, 1936, Pubfic Document No. 12.) 

Amendment to the Taxing Law. 

G. L., c. 65, § 2, dealing with the imposition of a succession tax upon the exer- 
cise and nonexercise of the power of appointment, is in immediate need of amend- 
ment on account of the decision in Binney v. Long, 299 U. S. 280. It was decided 
in that opinion that a nontestamentary transfer of taxable property by an instru- 
ment dated prior to September 1, 1907, but containing a power of appointment 
which in fact was never exercised, could not be taxed under the section above 
referred to, as that would result in a violation of the equal protection clause of the 
Fourteenth Amendment to the Constitution of the United States. 

That case also held that property passing on account of the nonexercise of the 
power of appointment under a wifi of a person who deceased in 1891 could not be 
joined with other property that passed upon the death of the donee of the power. 
There is a further contention made in two cases which are now pending in the 
Supreme Judicial Court for the Commonwealth that the nonexercise of the power 
by the donee under a will similar to that of 1891 is tax exempt on the ground that 
the decision above referred to strikes down our taxing act on account of the arbi- 
trary period of time therein mentioned in the determination whether the property 
passing under the exercise or nonexercise of the power should be assessed as if 



P.D. 12. 15 

it belonged to the donee, or because the instrument was dated subsequent to 
September 1, 1907, as if it were the property of the donor of the power. 

Under the existing law, the Commonwealth is liable to refund taxes to the 
amount of several hundred thousand dollars, and, if it has a constitutional right 
to reach the transfer of property arising from the nonexercise of the power, of 
taxes aggregating many milUon dollars, unless the taxing statute is amended to 
meet the objections pointed out by the Supreme Court of the United States. 

I accordingly recommend the adoption of the following statute : 

An Act imposing an Inheritance Tax on Property passing by the Exercise and 
Nonexercise of the Power op Appointment. 

Be it enacted, etc., as follows: 

Section two of chapter sixty-five of the General Laws is hereby amended by striking 
out the words "prior to September first, nineteen hundred and seven" and substituting 
therefor the following: — either before or after the passage of this act, — so that the 
said section as amended shall read as follows : — Section 2. Whenever any person shall 
exercise a power of appointment, derived from any disposition of property made either 
before or after the passage of this act, such appointment when made shall be deemed a 
disposition of property by the person exercising such power, taxable under section one, 
in the same manner as though the property to which such appointment relates belonged 
absolutely to the donee of such power, and had been bequeathed or devised by the donee 
by will; and whenever any person possessing such a power of appointment so derived 
shall omit or fail to exercise the same within the time provided therefor, in whole or in 
part, a disposition of property taxable under section one shall be deemed to take place 
to the extent of such omission or failure in the same manner as though the persons 
thereby becoming entitled to the possession or enjoyment of the property to which 
such power related had succeeded thereto by a will of the donee of the power failing to 
exercise such power, taking effect at the time of such omission or failure. 

Collection Agencies. 

In September, 1935, an investigation was begun by this Department into the 
affairs of every collection agency operating within the Commonwealth. This 
investigation revealed that unscrupulous collection agencies, by improper and 
illegal practices, were collecting more than one million dollars a year in excessive 
charges, fictitious costs, and other false expenses from unfortunate debtors who 
in the main were composed of those earning low wages. 

In the 412 collection agencies investigated our Department found that 81 per cent 
were engaged in both the illegal practice of law and in operating in a fraudulent 
and reprehensible manner. 

The results of this investigation are as follows: 

4121 collection agencies investigated: 

392 collection agencies enjoined by order of Court, or abandoned their opera- 
tions in this Commonwealth. 
12 collection agency cases awaiting decision by the Full Court upon their 

appeal from an adverse decision. 
8 collection agency cases awaiting trial by court or master. 

412 

> See Reports of the Attorney General for the years ending November 30, 1935 and 1936, Public Docu- 
ment No. 12. 



16 P.D. 12. 

No new collection agencies have come into this Commonwealth since our inves- 
tigation began, and every case tried by this Department was successful. 

Suggestion of Amendment of Law relative to Taking of Property for 

Public Use. 

There are now several claims pending against the Commonwealth for damages 
for land taken by eminent domain in which it would seem that the owners are justly 
entitled to compensation, but by reason of the fact that through delays due to 
efforts to settle, or various similar causes, the petitioners have failed to begin court 
proceedings within the period of a year from the taking, they are under our 
present law barred from obtaining those damages which, if accurately ascertained, 
they would seem to be justly entitled to receive. 

In some such cases there are not adequate reasons to excuse the owners from 
having filed their petitions in time. In others such reasonable excuses exist, and 
it would seem as if, when persons are found to belong to the latter class, some 
form of redress should be open to them so that they may have their day in court. 
In order to accomplish this, I recommend legislation to provide for a body to review 
these claims and to afford a means of access for those who should in all fairness be 
allowed to try the question of the amount of damages which they have received by 
reason of the taking of their land by eminent domain. 

I recommend the passage of legislation amending the present law in accordance 
with a draft of a bill which I am submitting. 

Suggested Amendments to Chapter 79 and Chapter 12 of the General 
Laws for the Relief of Persons who have been damaged by Takings 
by Eminent Domain and who have not filed their Petitions in the 
Superior Court within One Year from the Date of Such Takings. 

Be it enacted, etc., as follows: 

Section 1. Chapter seventy-nine of the General Laws is hereby amended by in- 
serting therein the following new section : — 

Section 16 A. Any person who fails to file a petition for the assessment of damages 
under section fourteen within the time prescribed in section sixteen, who otherwise 
would have a claim for damages under this chapter, may file a request with the board of 
review for leave to file such a petition in the superior court notwithstanding the provi- 
sions of said section sixteen. The board shall hold a hearing upon such request and, if 
it determines that the person filing such request is justly entitled to damages, it shall 
make an order that such person may have leave to file such a petition in the superior 
court notwithstanding the provisions of said section sixteen. The board shall furnish 
such person with a certified copy of its finding and thereafter, if such person shall within 
six months from the date of such order file the same with a petition for the assessment of 
damages in the superior court, such petition shall be entered in such court and shall be 
heard notwithstanding the pro^dsions of said section sixteen. 

Section 2. Chapter twelve of the General Laws is hereby amended by inserting 
therein the following new section : — 

Section SI A. There shall be a board of review which shall receive and determine 
requests for leave to file petitions for the assessment of damages, notwithstanding the 
provisions of said section sixteen of said chapter seventy-nine of the General Laws 
serving in the department of the attorney general and consisting of the attorney general 
or his representative, the commissioner of the department which made the taking rela- 
tive to which the petition for assessment of damages is to be made or his representa- 



P.D. 12. 17 

live, and the treasurer and receiver general or his representative. Any designation may 
be revoked at any time and may run for such period as the designating officer may pre- 
scribe. The members of the board and persons designated shall serve without compensa- 
tion. The attorney general or his representative shall be the chairman of the board. 

The board may appoint and remove a secretary and fix his compensation. 

All expenditures incurred under this section shall be paid by the department which 
made the taking. 

Any member of the board shall have power to summon and compel the attendance 
and testimony of witnesses and the production of books, records and documents, and 
may administer oaths. 

Installment Sales. 

I direct the attention of the Legislature to certain oppressive and injurious 
activities of those engaged in the business of making conditional sales of furni- 
ture, household effects and similar chattels under the so-called easy payment plan. 
Because of the widepsread use of this system, the welfare and security of the 
citizens of this Commonwealth are threatened and their future financial inde- 
pendence gravely imperiled. 

Although the sale of goods and chattels upon condition may be one method of 
assuring to the people of the Commonwealth an opportunity to obtain a liigh degree 
of material comfort, nevertheless, the unnecessary and avaricious development of 
abuses in this sj^stem should not be permitted to destroy the economic stability 
of wage earners solely because of a lack of protection which the Commonwealth 
has power to afford. The method of selling goods upon conditional sale origi- 
nated as a means of fostering the well-being of the citizens; its use as an instru- 
ment of oppression should not be countenanced. 

When a person desires to purchase necessary goods but finds that he is unable 
to pay for them at once because he lacks the total purchase price, he may buy 
them upon the so-called installment plan, thereby obtaining the present use of 
these goods in exchange for his promise to pay for them in small payments out of 
his future earnings. However, unless he is told at the outset the total amount 
which he will be required to pay, he may, and because of the present abuses often 
does, encumber his future earnings without hope of the eventual absolute owner- 
ship of the goods purchased or freedom from debt. Only if the total price is revealed 
to him has he the means of ascertaining whether or not the present value of these 
goods to him is equal to the future loss of income for a definite length of time. 
His ability to plan for the future is conditional upon his knowing the true extent 
of the obligation which he is about to assume; if this be kept from him, then he 
agrees in vacuo to bind his economic future for a length of time of much greater 
duration than he has been lead to believe. 

Thus, if he is told that the cost to him of the goods which he desires to purchase 
will be four hundred dollars, and that he may purchase them on an installment 
basis of two dollars paid at the time of entering into the contract and one dollar 
per week thereafter, the impression has thus been conveyed to him that the sole 
cost to him will be four hundred dollars, and that at a certain definitely ascertain- 
able time he will have paid that sum to the vendor. But he is not told that, under 
this contract, he is bound to pay service charges and a usual interest charge of one 
and one-half per cent per month on the original four hundred dollars. He thus 
promises to discharge at the rate of fifty-two dollars per year an obligation which 
is increasing at the rate of seventy-two dollars per year. Instead of decreasing 



18 P.D. 12. 

the amount of his indebtedness, he has been enmeshed in an inextricable net 
which draws him deeper into debt with the passage of time. His contract, there- 
fore, amounts to a promise, secured by his future earnings, to pay to the vendor 
fifty-two dollars each year for the remainder of his life. In effect, it is a promise 
to pay "interest" on the original cost of the goods (probably less than two hun- 
dred dollars) at the rate of more than twenty-five per cent per year forever. 

The future welfare of its citizens is of vital concern to the Commonwealth; 
its clear duty lies in preserving them from economic bondage. If these practices 
are permitted to continue, in the years to come the citizens of tliis Common- 
wealth will be forced to forego the very necessities of life, because they have 
assumed obligations under these contracts, as to the onerous implications and 
requirements of which they have been misinformed. 

I recommend that legislation be enacted to pro-v-ide that, whenever such goods 
and chattels are offered for sale, a duty be placed upon the vendor to inform the 
purchaser of the total cost of such goods, including all charges and interest, which 
must be paid by the purchaser before title may vest in him. 

Contractors on Public Works should be Required to Carry Workmen's 
Compensation Insurance . 

There is a tendency upon the part of some of those who enter into contracts 
for the construction of highways, bridges and public buildings and the perform- 
ance of other public work to substitute various forms of insurance for 
the payment of losses arising from accidents incurred by their employees. Some 
contractors desire to eliminate insurance for certain claims which do not 
approximate a certain amount and to adjust and settle those claims themselves, 
and only to carry insurance covering risks of a more serious nature. They thereby 
reduce the cost of insurance without furnishing adequate protection to their 
employees. 

Recently an employee of a contractor engaged in the construction of a state 
highway was so permanently and severely injured that damages in the amount 
of twenty thousand or twenty-five thousand dollars would not be deemed exces- 
sive if they were measured by a verdict of the jiiry. The contractor company was 
insolvent and had permitted the workmen's compensation policy to lapse. At- 
tempts by the employee to reach the bond furnished for the completion of the 
work were unavailing. Recourse to the bond might be had for the payment of 
wages and materials but not for injuries or death incurred by an employee. A 
judgment which might be secured against the contractor would not be satisfied 
and paid. The employee is remediless. Crippled for life, he must spend his 
remaining days as a public ward. 

There is no law requiring such a contractor to carry workmen's compensation 
insurance. The objection that a law which would compel all employers to furnish 
such insurance would be void does not apply here, where the State has a right to 
determine the conditions upon which it will enter into engagements for the per- 
formance of public works. The aim of the Legislature has been to induce all 
employers to secure such insurance by taking from them certain common law 
defences. That object can be directly accomplished in the case of contracts for 
the performance of public works by requiring the contractor to secure and provide 
such insurance. Accordingly, I recommend the adoption of the following legis- 
lation : 



P.D. 12. 19 

An Act requiring Contractors on Public Works to secure Workmen's Com- 
pensation Insurance. 
Be it enacted, etc., as follows: 

Chapter one hundred and forty-nine of the General Laws is hereby amended by 
inserting after section thirty-four the following new section: — 

Section 34 A. Every contract for the construction, alteration or repair of highways 
or bridges, or for the construction and repair of, or additions to, public buildings or 
other public works, to which the commonwealth or any county, city or town is a party, 
shall contain a provision requiring the contractor to secure and maintain during the 
performance of the contract workmen's compensation insurance of the kind and char- 
acter defined in chapter one hundred and fifty-two of the General Laws and amend- 
ments thereof and additions thereto. Failure to secure and maintain such workmen's 
compensation insurance shall be deemed a material breach of the contract and shall 
thereupon render such contract nuU and void, and thereupon the contractor shall be 
barred from recovering anj' compensation or damages for and on account of the afore- 
said contract. 

Lotteries. 

The endless chain system of selling merchandise has been frequently utilized 
in perpetrating fraudulent schemes upon the public. Sometimes they are under the 
disguise of a legitimate plan to stimulate sales and are represented to be a mere 
matter of advertising. At times their existence is predicated upon a desire of a 
dealer or a manufacturer to "introduce" his goods in a certain territory and to 
create a market for his product. The element of fraud inherent in these schemes 
varies. In some, the purchaser gets something for his money; in others, all he 
gets is a chance to participate in a venture which is nothing more or less than a 
gambling enterprise. 

Last fall the public was invited to purchase so-called discount books for ninety- 
five cents. Each purchaser was required to furnish two other purchasers and so were 
all subsequent purchasers. When the name of a pm-chaser reached the top of a 
direct line of one hundred and twenty-eight purchasers, then the next subsequent 
purchaser bought another and different discount book for $5.00 from the promoter, 
who in turn paid this sum of $5.00 to the preceding purchaser. Each purchaser, 
therefore, for his investment of $5.95 was entitled to receive $5.00 on each of the 
one hundred and twenty-eight occasions when every purchaser subsequent to him 
in turn became the head of a new chain of one hundred and twenty-eight sub- 
sequent purchasers. In order for the original purchaser to receive a total of $640, 
which was the limit any purchaser was permitted to receive, his respective chain 
would have to include over thirty-one thousand members. The promoter would 
have received ninety-five cents from each member, or a gross profit of approxi- 
mately $30,000. He simply paid the rent for the headquarters (which were leased 
only for a few months), clerk hire and telephone charges. None of the money paid 
for the original discount books went to those who joined the chain, and none went 
to the merchants designated in the books. They permitted the books to be issued 
and each contained coupons entitling the purchaser to a discount with these so-called 
merchants. These merchants, in the main, were small dealers who could not 
handle any considerable volume of business. An investigation showed that one 
had a small watch repairing shop and a stock of only a few hundred dollars' worth of 
jewelry. He received nothing from the promoter, and never had a single coupon 
holder present any discount check. One dealer had three such coupons presented. 
The fact is that the purchaser did not intend to use these so-called discount books, 
but paid ninety-five cents for the chance of securing $640. 



20 P.D. 12. 

In order for a thousand members to each receive the last-mentioned amount there 
would have to be over three million members. Those who had entered the scheme 
at the very begiiming had a chance to get something, but last comers had no chance 
whatever to secure a dollar. The plan was illusory, and the only one who could 
profit was the promoter, who simply furnished the facilities for the operation of the 
scheme. The plan was a plain fraud. The members were warned not to use the 
mails, but to do their business personally at the office. This was a precautionary 
measure to avoid prosecution for violation of the Acts of Congress imposing a 
penalty for using the mails in the perpetration of a fraudulent scheme. 

The aid of an old statute was invoked by this Department, and upon the filing 
of a petition in the Supreme Judicial Court a temporary receiver was appointed; 
the business was closed; and its assets taken over in the custody of the court 
through its receiver. Whether that particular statute was applicable to the pro- 
ceedings wliich were had and could be stretched to cover a scheme as herein de- 
scribed has never been passed upon by our courts. Fortunately, the scheme was 
intercepted before thousands of our people were cheated and defrauded. 

Because of previous ruhngs of our courts intimating that a chance based upon 
the action of subsequent purchasers might not be such a chance as is an essential 
element in a lottery makes it imperative that our statutes should be broadened 
and extended to include endless chain enterprises of the kind hereinabove described. 

I therefore recommend the enactment of the following bill: 

An Act making Certain Endless Chain Transactions a Lottery. 
Be it enacted, etc., as follows: 

Chapter two hundred and seventy-one of the General Laws is hereby amended by 
inserting after section seven thereof the following new section : — 

Section 7 A. Whoever sets up and promotes a plan by which goods or anything of 
value is sold to one for a consideration, and upon the further consideration that the 
purchaser shall secure one or more persons to participate in the plan by making a 
similar purchase, and who in turn agree to secure one or more persons to join in the 
said plan, each purchaser being given the right to secure money credits, goods or some- 
thing of value, depending upon the number who join in the plan, shall be guilty of 
setting up and promoting a lottery and shall be punished as provided for in the pre- 
ceding section. The supreme judicial court shall have jurisdiction upon a petition 
filed by the attorney general to enjoin the further prosecution of any such plan and to 
appoint receivers to secure and distribute the assets. 

Amendment of Laws relating to Savings Banks. 

I repeat my recommendation made in 1935 that the laws relating to savings 
banks should be amended by providing that no executive or administrative 
officer, or member of the board of investment of such banks, should act as 
counsel therefor. 

The mutual savings banks of Massachusetts are quasi-public institutions. 
They should not be used as instruments for unconscionable private gain. When 
a prospective mortgagor applies for a mortgage, the bank counsel who is to charge 
the mortgagor for legal services rendered should not have within his power as an 
officer of the bank a voice in the granting or the denial of the mortgage. The pos- 
session of such power has too often served as a deterrent to protest at the amount 
charged allegedly for legal services. There have been called to the attention of 



\ 



P.D. 12. 21 

the Department instances of fees so charged, which lend color to a conclusion that 
the fees in fact constituted inducements to the officer of the bank. 

This is especially true in the instance of mortgages for large amounts, where 
the size of the loan ser\^es 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. 

(See Report of the Attorney General, 1935, Public Document 12.) 

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 1107,348.63. This Division was estabUshed during the first year of my in- 
cumbency as Attorney General. During the year next preceding the establish- 
ment 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. 

Official Opinions. 

The Department has rendered 144 written opinions. 

An Appreciation. 

In conclusion, I want to pay tribute to the zeal, ability, 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 government have all co-operated in a sincere 
effort to serve the Commonwealth. 

Respectfully submitted, 

PAUL A. DEVER, 
Attorney General. 



22 P.D. 12. 

Details of Capital Cases. 

1. Disposition of indictments pending Nov. 30, 1936: 

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

L. Bishop). 

Joseph Pisani. 

Indicted September, 1936, for the murder of John Oliver, at Somerville, on Aug. 16, 
1936; arraigned May 12, 1937, and pleaded not guilty; trial June, 1937; verdict 
of not guilty by reason of insanity; thereupon 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; Dec. 22, 1936, retracted former 
plea and pleaded guilty to manslaughter, which was accepted; thereupon sentenced 
to the house of correction for two and one half years. 

Southern District (in charge of District Attorney William 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; 
June 25, 1937, retracted former plea and pleaded guilty to murder in the second 
degree, which was accepted; thereupon sentenced to State Prison for life. 

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

Foley). 

Eli Bonda, alias. 

Indicted November, 1936, for the murder of Gregory Krevdick, alias, on Oct. 25, 1936; 
arraigned Nov. 16, 1936, and pleaded not guilty; trial January, 1937; verdict of 
guilty of murder in the second degree; thereupon sentenced to State Prison for life. 

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; 
June 11, 1937, retracted former plea and pleaded guilty to murder in the second 
degree, which was accepted; thereupon sentenced to State Prison for life. 

2. Indictments found and dispositions since Nov. 30, 1936: 

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

L. Bishop). 

Frank Mangano. 

Indicted January, 1937, for the murder of Martin Tompkins, at Cambridge, on Dec. 
3, 1936; arraigned Jan. 8, 1937, and pleaded not guilty; June 11, 1937, retracted 
former plea and pleaded guilty to manslaughter, which was accepted; thereupon 
sentenced to State Prison for not more than five years and not less than two and 
one half years. 

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

Lorenzo Scola, alias, and Salvatori Scola. 

Indicted in Barnstable County, April, 1937, for the murder of Antone EHas Malhado; 
arraigned April 23, 1937, and each pleaded not guilty; Nov. 15, 1937, each re- 
tracted his former plea; Lorenzo Scola pleaded guilty to murder in the second degree, 



I 



P.D. 12. 23 

which was afcepted, and he was thereupon sentenced to State Prison for life; Sal- 
vatori Scola pleaded guilty to assault, wliich was accepted, and he was thereupon 
sentenced to the house of correction for two years. 

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

Foley). 
Avoelino Furtado, alias. 

Indicted December, 193G, for the murder of Edith Stokes, on June 1, 19.S0; arraigned 
Jan. 21, 19:^7, and pleaded not guilty; trial January, 1937; verdict of guilty of 
murder in the second degree; thereupon sentenced to State Prison for life. 

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

Frederick D. Rayno. 

Indicted in Berkshire County, January, 1937, for the murder of Timothy Mahoney, 
at Cheshire, on Aug. 1, 1936; arraigned Jan. 26, 1937, and pleaded not guilty; 
June 10, 1937, retracted former plea and pleaded guilty to murder in the second 
degree, which was accepted; thereupon sentenced to State Prison for life. 

Wilham Wrobel. 

Indicted in Hampden County, December, 1936, for the murder of Mary Wrobel, at 
Chicopee, on Dec. 3, 1936; arraigned Feb. 17, 1937, and pleaded not guilty; June 
23, 1937, retracted former plea and pleaded guilty to murder in the second degree, 
which was accepted; thereupon sentenced to State Prison for life. 

3. Pending indictments and status: 

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

George Parks. 

Indicted September, 1937, for the murder of George Parks, the younger of that name, 
at Lynn, on Aug. 14, 1937; Nov. 27, 1937, committed to Danvers State Hospital 
for observation. 

Northern District (jSIiddlesex 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 7, 1936, rescript "Judgment 
on the verdict" on claim of appeal of Frank DiStasio; May, 1936, Anthony Di- 
Stasio 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 covirt 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; May 28, 1937, rescript "Judgment on the verdict" 
on claim of appeal of Anthony DiStasio; July 7, 1937, motion for new trial denied; 
Dec. 2, 1937, rescript "Judgment affirmed"; petition for certiorari filed by Frank 
DiStasio denied by the Supreme Court of the United States on Oct. 11, 1937, and 
petition for certiorari filed by Anthony DiStasio denied by the Supreme Court of 
the United States on Dec. 20, 1937; execution of the sentence of death has been 
respited by the Governor and Council to permit the Supreme Court of the United 
States to pass on these two petitions; last respite expires on Jan. 17, 1938. 

Edward P. Simpson, alias. 

Indicted June, 1937, for the murder of Henry G. Bell, at Watertown, on Aug. 22, 1937; 
arraigned Sept. 22, 1937, and pleaded not guilty; trial November, 1937; verdict 
of guilty of murder in the first degree; thereupon sentenced to death by electrocu- 
tion; claim of appeal pending. 



24 P.D. 12. 

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

Frank Grabowski. 

Indicted in Franklin County, November, 1937, for the murder of Anthony Ruggeri, 
at Greenfield on July 28, 1937; arraigned Nov. 15, 1937, and pleaded not guilty. 

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

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; 
trial September, 1937; verdict of guilty of murder in the first degree; Nov. 10, 1937, 
motion for new trial denied. 

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

Gene Burns, Tadius Makara and Stephen Tarsa. 

Indicted in Bristol County, November, 1937, for the murder of Louis Larochelle; 
arraigned Nov. 22, 1937, and each pleaded not guilty. 

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

Foley). 

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; trial April, 1937; verdict of guilty of mur- 
der in the second degree; thereupon sentenced to State Prison for life; claim of 
appeal pending. 

Joseph Pimental. 

Indicted September, 1937, for the murder of Chester John Harris, on Oct. 30, 1936; 
arraigned Sept. 15, 1937, and pleaded not guilty. 



P.D. 12. 25 



OPINIONS. 



Insurance Company — Bond to secure Repayment of Premiums. 

Dec. 3, 1936. 
Hon. Francis J. DeCelles, Commissioner of Insurance. 

Dear Sir: — You have laid before me certain bonds with individual 
sureties, which it is proposed to give to you under the provisions of 
G. L. (Ter. Ed.) c. 175, § 73, to secure the repayment of any premiums 
paid to a certain insurance company. With relation to these bonds you 
have asked me the following question: "If this company were to default 
in its obligations, could this bond be readily realized upon by me in order 
to refund moneys to the original subscribers?" 

Accompanying each of these bonds is a certificate, signed by the surety, 
showing the extent of equity owned by him in certain designated real 
estate. It is within your power to require security in such form, as well 
as in such amount, as in your sound judgment seems best for the purpose 
for which it is intended, and your judgment as to the sufficiency of the 
bonds in their present form and amount should govern. 

For your assistance in passing upon this matter and in answer to your 
question, it is my opinion that this form of security could not be "readily 
realized upon" by you. In its present form the security consists of several 
bonds of different makers, and the possibility of litigation with more than 
one surety is a point to be considered. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Chief of Archives Division — Retirement — Age of Seventy. 

Dec. 4, 1936. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You have asked my opinion as to whether the Chief of 
the Archives Division in the Department of the Secretary of the Common- 
wealth, appointed by you under G. L. (Ter. Ed.) c. 9, § 2, is one of the 
"employees" of the Commonwealth, as the quoted word is used in G. L. 
(Ter. Ed.) c. 32, and whether the provisions of said chapter 32, requiring 
the retirement oif "employees" at the age of seventy, apply to such official. 

I am of the opinion that such official is embraced within the term 
"employees" as used in said chapter 32 and is by its provisions required 
to retire at the age of seventy. 

Irrespective of his manner of appointment and tenure of office, the 
"chief of the archives division" does not occupy a position fundamentally 
different in character from that of very many other minor officials of the 
Commonwealth. He is not an "officer elected by popular vote," such as 
is by statutory provision specifically excepted from those who are to be 
members of the State Retirement Association, nor does he come within 
any other stated exception to such membership; nor do the duties or 
powers of his position appear to be such as to exclude him from the status 



26 P.D. 12. 

of one of the "employees" of the Commonwealth, as the word "employees" 
is defined in said chapter 32, section 1, by the following terms: — 

"'Employees', persons permanently and regularly employed in the 
direct service of the commonwealth or in the service of the metropolitan 
district commission, whose sole or principal employment is in such serv- 
ice; . . ." 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Police Detective — Retirement — Age of Seventy. 

Dec. 4, 1936. 
Hon. Paul G. Kirk, Commissioner of Public Safety. 

Dear Sir: — You have asked my opinion as to whether a State police 
detective who began service prior to July 1, 1921, is exempt from the 
necessity of retiring upon reaching the age of seventy. 

I must answer your inquiry to the effect that such State police detective 
must retire at the age of seventy. 

The said detective became a member of the State Retirement Associa- 
tion on or before July 1, 1921. The fact that he became entitled to the 
advantages of the provisions of G. L. (Ter. Ed.) c. 32, § 68, with relation 
to a pension, did not prevent his becoming a member of said association. 
All employees of the Commonwealth become members of such association, 
with certain enumerated exceptions, and all such members must retire 
"after reaching the age of seventy." G. L. (Ter. Ed.) c. 32, § 2 (2). 

The detective in question has the advantage of electing whether he will 
retire and receive the benefits provided for members of the association, 
or, if he is entitled so to do, retiring under the terms of G. L. (Ter. Ed.) 
c. 32, § 68, and receiving the pension provided for by said section 68. 

It may have been thought that because the said detective was entitled 
to the advantages of said section 68 he thereby did not become a member 
of the State Retirement Association, because it is provided in G. L. (Ter. 
Ed.) c. 32, § 2 (3), that no "employee who is or will be entitled to a non- 
contributory pension from the commonwealth" may be a member of the 
association. 

It has been held in a number of opinions of the Attorneys General that 
one placed with regard to a pension as is this detective by the terms of 
said section 68 cannot be said to be an "employee who is or will be en- 
titled to a non-contributory pension from the commonwealth." By the 
provisions of said section 68 the said detective may become entitled to a 
pension thereunder, but it cannot be said at the present that he "is or 
will be so entitled." Before it can be said that he is or will be so entitled 
he must have met certain conditions and done certain acts, and certain 
other acts resting in judgment or discretion must have been performed by 
other officials. These are set forth in section 68, which reads: — 

"Any officer or inspector of the department of public safety, who 
began continuous service prior to July first, nineteen hundred and twenty- 
one, if in the judgment of the commissioner of public safety he is disabled 
for useful service in the department and a physician designated by said 
commissioner certifies that he is permanently incapacitated, either physi- 
cally or mentally, for the further performance of his duty in the depart- 
ment, by injuries sustained through no fault of his own in the actual per- 
formance of his duty, or any such officer or inspector of said department 



P.D. 12. 27 

who has performed continuous faithful service for the connnonwealth for 
not less than twenty years, if in the judgment of said commissioner he is 
incapacitated for further service as a member of the department, shall, 
if he so requests, be retired, and shall annually receive a pension from the 
commonwealth equal to one half the compensation received by him at the 
time of his retirement. Said commissioner may in an emergency call upon 
any person so pensioned for such temporary service as a member of the 
departm(>nt as he may be fitted to perform, and during such service there 
shall be paid to him the difference between the rate of full pay for such 
employment and the rate of pension received by him. Any former in- 
spector of the district pohce transferred to the state board of labor and 
industries under authority of section eight of chapter seven hundred and 
twenty-six of the acts of nineteen hundred and twelve shall, for the pur- 
poses of this section, be deemed an inspector of the department of public 
safety." 

Section 93 of said chapter 32 does not affect the detective's status in 
this respect. He is a member of the retirement association and so must 
retire at seventy. V Op. Atty. Gen. 534; VIII ibid., 547, 549; Attorney 
General's Report, 1932, p. 67. 

Very truly yours, 

Paul A. Dever, Attorney General. 

EducMtion — Vocational Training — Aid furnished for Training outside 

the State. 

Dec. 4, 1936. 

Hon. James G. Reardon, Commissioyier of Education. 

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

"A question has arisen as to whether or not the State Board for Voca- 
tional Education may provide aid during a rehabilitation program to a 
resident of Massachusetts who is pursuing a course of vocational training 
under the super\asion of the State Board beyond the borders of the Com- 
monwealth of Massachusetts, i.e., New York City." 

G. L. (Ter. Ed.) c. 74, § 22B, provides: — 

"Said state board for vocational education may expend, under rules 
and regulations made bj^ it and approved by the governor and council, 
such sums, not exceeding ten thousand dollars, as may be annually appro- 
priated therefor, for the purpose of furnishing aid during rehabilitation to 
such persons as it shall deem able to profit by training. 

The department of public welfare shall, upon request of said board, 
make an investigation of the circumstances of persons, actually in train- 
ing afforded by said board, who apply for aid during rehabilitation under 
the provisions of this section, and shall make a report of its findings to 
said board." 

I am of the opinion that if a resident of Massachusetts is pursuing a 
course of vocational training under the supervision of the State Board 
for Vocational Education, such Board may aid him under the provisions 
of said section 22B, subject to such rules and regulations as may have been 
made, if any, applicable to such a situation, even if such course is being 
taken in another State. 

Very truly yours, 

Paul A. Dever, Attorney General. 



28 P.D. 12. 

Alcoholic Beverages — Licenses for Package Stores — Separate Stores. 

Dec. 4, 1936. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You have in effect asked my opinion as to whether a 
local licensing authority may properly reject any and all applications for 
licenses for "package stores," so called, under the provisions of G. L. 
(Ter. Ed.) c. 138, § 15, as amended, merely because other commodities 
are sold upon the licensed premises. 

The Legislature has set forth no provision which forbids such licenses 
to be issued under the foregoing conditions nor requiring that the prem- 
ises where such licenses are to be exercised must be "separate stores" 
maintained for the sole purpose of selling alcoholic beverages in packages. 

Discretion is vested in the local licensing authorities in granting licenses 
under section 23 of said chapter 138, as amended, but such discretion may 
not be used arbitrarily and must be used within the scope of the act as 
set forth by the General Court. A general rule by a local licensing author- 
ity that it would grant no license except one to be used in a "separate 
store" would not, in my opinion, be such a "reasonable requirement which 
they may from time to time make with respect to licenses" as a local 
authority is authorized to make by said section 23. 

It may be that under particular circumstances a license should not be 
issued to be used on premises where certain forms of occupations were 
carried on, and in such an instance the application might properly be 
refused, but such procedure would be something essentially different from 
action by local licensing authorities such as you have referred to, which, 
in my opinion, is outside the reasonable exercise of their authority. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Retirement Association — Transfer of Membership from a County 
or Municipal Retirement System. 

Dec. 7, 1936. 

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

Dear Sir: — You have in effect asked my opinion as to whether the 
amendment of G. L. (Ter. Ed.) c. 32, by St. 1936, c. 318, allows "an 
employee" over fifty-five years of age, who enters the Commonwealth's 
service from that of a political subdivision, to become a member of the 
State Retirement Association by transfer of "membership from a county 
or municipal" retirement system. 

I am of opinion that, under the circumstances you describe, such an 
employee over fifty-five years of age does not become a member of the 
State Retirement Association by force of said chapter 318. 

G. L. (Ter. Ed.) c. 32, § 2 (2), provides: — 

"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) 



P.D. 12. 29 

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." 

In 1934, by section 2 of chapter 360 of the acts ot that year the Legisla- 
ture made an amendment to the retirement law somewhat to the same 
effect as that made by the said St. 1936, c. 318, though not of quite so 
broad a scope, which in its applicable parts reads : — 

"Paragraph (2) A (c) of section four of said chapter thirty-two, as so 
appearing, is hereby amended by adding at the end thereof the following: 
— In case any member of a contributory retirement association estab- 
lished in accordance with law for employees of a county, city or town in 
the commonwealth and maintained by public funds shall, not later than 
ten days after the date of termination of his county, city or town service, 
enter the service of the commonwealth or of the metropolitan district 
commission and shall become a member of this association, such county, city 
or town shall, upon written notice from the state board of retirement, pay 
to the state treasurer, and he shall receive, the full amount of any account 
of such member in the annuity fund of the county, city or town retire- 
ment association, and this account shall thereby become part of his 
deposits in the annuity fund of this association and shall be treated in all 
respects the same as his deposits under paragraph (2) A of this section." 

The effect of this amendment was not to allow a transferred employee 
over fifty-five to become a member of the State Retirement Association, 
for the provision relative to the transfer of his account was specifically 
conditioned upon the fact that he "shall become a member of this asso- 
ciation," which he could not accomplish by reason of the age limit set 
up in said section 2 (2). 

In view of its prior enactments carefully guarding the State Retire- 
ment Association from the presence of members over fifty-five and the 
language employed in the amendment of 1936, it cannot be said that in 
such amendment there is manifested a legislative intent to force the in- 
clusion of transferred employees over fifty-five into the membership of 
the State Retirement Association. 

The applicable section, section 37D, inserted in G. L. (Ter. Ed.) c. 32, 
by said St. 1936, c. 318, reads as follows: — 

"Any member of any contributory retirement system established under 
the provisions of this chapter or any special act, which is maintained by 
public funds, upon leaving a position in the service of a county or munici- 
pality or of the commonwealth, or as a teacher in the public schools, as 
defined in sections six and seven, which entitles him to be such a member, 
and accepting a position which entitles him to become a member of any other 
system in any such service, may transfer his membership to such other 
system; provided, that the full amount of his accumulated deductions 
plus regular interest shall be transferred to the system of which he then 
becomes a member. 

When a member who so transfers from one system to another is retired, 
any pension which shall be part of his retirement allowance shall be paid 
by the system of which he was formerly a member, and by the system to 
which he transfers, as directed and in such proportion as may be directed 
by the commissioner of insurance on the basis of actuarial determination." 



30 P.D. 12. 

It cannot fairly be said that the words "and accepting a position which 
entitles him to become a member of any other system" were intended by 
the Legislature to grant membership in the State Retirement Association 
to a tranvsferred employee over fifty-five, as the position which he took in 
the Commonwealth's service did not entitle him to become a member of 
the State Retirement Association or system, because such position carried 
with it the qualification that the holder, if over fifty-five, though working 
for the Commonwealth, might not be a member of its Retirement Asso- 
ciation or system. 

I am of the opinion that the Legislature did not intend by the terms of 
said section 37D to change or alter the existing rule as to age in favor of 
a particular group of transferees who might come into the Common- 
wealth's service. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Voter — Married Woman living apart from Her Husband. 

Dec. 8, 1936. 

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

Dear Sir : — You have set forth certain facts and have asked me two 
questions with relation to the following matter: — 

''The provisions of the last sentence of the first paragraph of section 1 
of G. L. (Ter. Ed.) c. 51, are as follows: — 'A married woman dwelHng or 
having her home separate and apart from her husband shall for the purpose 
of voting and registration therefor be deemed to reside at the place where 
she dwells or has her home.' 

The facts pertaining to the specific question are briefly as follows : — 

A married woman now living apart from her husband, not divorced 
and not living apart from him for justifiable cause within law but merely 
at her own wish and for her own convenience, maintains a residence in 
this Commonwealth. Her husband has a voting residence in the State of 
New York, due to the fact that his business takes him there, and for busi- 
ness reasons he deems it necessary to maintain this residence outside of 
Massachusetts. 

Under the above-stated facts, can the married woman be registered 
and permitted to vote in the town of her residence in this Commonwealth? 

Your opinion is also respectfully requested in answer to the following 
question : — 

May a married woman, not living apart from her husband, maintain a 
residence- and be permitted to register and vote in a town other than that 
in which the husband votes, both living within the Commonwealth?" 

In answer to your first question: You state in effect that the married 
woman in question actually lives apart from her husband and maintains 
a separate residence. If her husband does not in fact live with her and 
make a home with her in the residence which he maintains (and I assume 
that he does not, because you speak of her as "living apart from her 
husband"), then a married woman may be registered and permitted to 
vote in the town where she resides in this Commonwealth. 

I answer your second question in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 31 

Prisoners — County Commissioners — Permits to be at Lihertjj. 

Dec. 14, 1936. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You have asked me the following question relative to 
G. L. (Ter. Ed.) c. 127, § 128: — 

"May I ask your opinion as to whether or not the above section per- 
mits county conunissioners to vote a release of an inmate in their respec- 
tive institutions, regardless of the length of time that an inmate has served 
of his sentence. As an illustration, a man received a sentence of eighteen 
months. Have the countj^ commissioners authority under the above sec- 
tion to release this man after he has served five or six months of his sen- 
tence?" 

I am of the opinion that county commissioners have no authority to 
grant a permit to be at liberty to a prisoner in a jail or house of correction 
until such prisoner's term has reached an end by reason of a proper deduc- 
tion from the original term by reason of good conduct, as such deduction 
is provided for under G. L. (Ter. Ed.) c. 127, § 130. 

The history of the legislation now embodied in said sections 128 and 
130 shows that it was not the intent of the Legislature, in using the lan- 
guage employed in said section 130, to give to county commissioners a 
general power of jail delivery. The power given them under said section 
128 was intended by the Legislature to apply only to giving permits to 
be at liberty to such prisoners as were entitled to be released because of 
good conduct under said section 130. 

The original statute upon this subject, St. 1880, c. 218, included in one 
chapter the general provisions now appearing in sections 128 and 130 of 
said chapter 127, and was entitled "An Act to provide for the release of 
prisoners for good conduct." The context thereof clearly shows the 
intent of the General Court to limit the authority of county commissioners 
in the manner above set forth, and the same intent has been plainly mani- 
fested in subsequent amendments. 

The intent is, obviously, still the same, and the power of the commis- 
sioners is not enlarged in this respect by the language employed and the 
arrangement of sections in the codification of the General Laws. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commission on Administration and Finance — Confidential Employee. 

Dec. 16, 1936. 

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

Finance. 

Dear Sir : — You have asked my opinion as to the legality of the em- 
ployment of a confidential employee by your Commission as such, or by 
you as chairman. 

The provisions of the applicable statute, G. L. (Ter. Ed.) c. 30, § 7, 
are as follows : — 

"Each commissioner in charge of a bureau of the commission on admin- 
istration and finance and the officer in charge of the division of personnel 



32 PD. 12. 

and standardization of said commission, and each officer, board and com- 
mission, other than the aforesaid commission, having supervision and 
control of an executive or administrative department, including the adju- 
tant general and each officer, board and commission, mentioned in section 
seventeen of chapter six, may, subject to the approval of the governor 
and council, employ a person to serve in a confidential capacity and may, 
with like approval, remove him. Such employee shall receive such com- 
pensation as shall be fixed by the officer, board or commission employing 
him and approved by the governor and council." 

It is obvious from the language of the statute that the chairman of the 
Commission, who is not a " commissioner in charge of a bureau of the . . . 
commission," is not entitled to employ "a person to serve in a confidential 
capacity." 

As to the Commission itself, although it is among those offices "men- 
tioned in section seventeen of chapter six" and so might appear, in view 
of some of the language of the said section, to be entitled to appoint a 
confidential employee, yet the specific exclusion of this Commission from 
the exercise of such power to appoint ("and each officer, board and com- 
mission, other than the aforesaid commission," i.e., the Commission on 
Administration and Finance) is controlling in the interpretation of the 
section in this respect. 

Accordingly, I am of the opinion that the confidential employee as to 
whom you inquire is not lawfully employed as such by you or by your 
Commission. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Contracts of Sale — Commission on Administration 

and Finance. 

Dec. 19, 1936. 

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

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

"We understand that the Executive Council, on December 11, 1936, 
voted to remit certain deductions made by the Commission on Adminis- 
tration and Finance in the form of penalties imposed upon certain coal 
companies for alleged substandard coal furnished to the Commonwealth. 

Reference is made to a letter of the Massachusetts Federation of Tax- 
payers Associations Incorporated, dated December 11, 1936, addressed to 
George E. Murphy, Comptroller, a copy of which we understand has been 
sent to you. 

Your opinion is respectfully requested on the legaHty of such payments 
being made on the warrant of the Governor and Council." 

The vote of the Governor and Council, to which you refer, is embodied 
in the form of an order in a letter transmitted to the Commission on Ad- 
ministration and Finance, which has been laid before me and which reads 
as follows : — 



P.D. 12. 33 

"The Commonwealth of Massachusetts, 
Council Chamber, Boston, December 12, 1936. 

Commission on Administration and Finance, State House, Boston, Massa- 
chusetts. 

Attention: Mr. Charles P. Howard, Chairman. 

Gentlemen: — His Excellency the Governor and Council have heard 
and considered a petition from the Carter Coal Company, the Old Colony 
Coal & Wharf Co., Inc. and the Commonwealth Fuel Co., Inc., represented 
by Joseph W. Gorman, being an appeal from the action of the Commission 
on Administration and Finance assessing penalties on coal delivered to 
the Commonwealth under contract by said coal companies between April 
1, 1935, and April 1, 1936. 

At a meeting of the Governor and Council held Friday, December 11, 
1936, it appearing that said penalties, above referred to, had been im- 
posed wrongfully and without authority of law, it was 

Ordered that the Commission on Administration and Finance be and 
hereby is directed to cause to be refunded to said Carter Coal Company, 
Old Colony Coal & Wharf Co., Inc. and the Commonwealth Fuel Co., 
Inc., above mentioned, the amount assessed in penalties against each as 
follows : 

Carter Coal Company $5,399 . 66 

Old Colony Coal & Wharf Co., Inc. . . . 5,473.44 
Commonwealth Fuel Co., Inc 8,623.09 



Total $19,496.19 

Adopted in Council December 11, 1936. 

(Signed) William L. Reed, 

Executive Secretary." 

Before the proposed payment to the above-named contracting coal 
companies in the sum mentioned in said order could come before the 
Governor and Council for action it would have to be authorized and ap- 
proved by the Chairman of the Commission on Administration and 
Finance, by whose department the contract was made, pursuant to the 
provisions of G. L. (Ter. Ed.) c. 29, § 20; and after the same had been so 
approved, if an appropriation from which it could be paid was in exist- 
ence, it would then require to be certified by the Comptroller, under the 
terms of G. L. (Ter. Ed.) c. 29, § 18, and placed upon a warrant, which 
warrant would subsequently issue from the Governor. 

It thus appears that you have no present duty to perform in the prem- 
ises. The opinion of the Attorney General cannot be required as of right 
by any State official excepting in connection with the performance of an 
immediate and existing duty concerning which he is obhged to act. You 
set forth facts sufficient to indicate that the question you raise may 
become real and actual rather than speculative and moot. Under such 
circumstances, an opinion may be furnished without doing great violence 
to the long established policy of this department. 

The power of the Governor and Council is not unlimited nor the scope 
of their authority unbounded even in regard to the administrative service 
of the Commonwealth. The Governor and the members of the Council 
are constitutional officers, enjoying the privileges and prerogatives and 



34 P.D. 12. 

subject to the obligations and responsibilities which the Constitution 
itself attaches thereto. The Legislature may, in any manner not incon- 
sistent with the Constitution, prescribe the qualifications, determine the 
tenure and compensation and regulate the duties of such officers as the 
public exigency may require or public poHcy demand. Opinion of the 
Justices, 117 Mass. 603; Opinion of the Justices, 216 Mass. 605; Attorney 
General v. Tufts, 239 Mass. 458, 480. 

The Governor and Council are authorized to review and set aside the 
action of the Commission only if they are so empowered by the Constitu- 
tion or by statute. Ordinarily, when the Legislature has placed upon a 
public officer or commission the duty of seeing that money appropriated 
is properly expended and the Governor and Council are not made specifi- 
cally responsible therefor, except in so far as the Governor is required to 
sign warrants for payments from applicable appropriations, the Governor 
and Council have no authority to command, order or direct such officer or 
commission as to how he or it shall perform such duty, nor can they 
themselves make or cause to be made expenditures of such money. 

It is familiar law that where the duties and powers of public officers are 
W'holly defined by statute such officers are not subject to the directions of 
any other authority in the administration and performance of their official 
obligations. Cox v. Segee, 206 Mass. 380; Bowling v. Board of Assessors 
of Boston, 268 Mass. 480, 484; Tuckerman v. Moynihan, 282 Mass. 562. 

The adoption on November 5, 1918, of Mass. Const. Amend. LXVI 
required the consolidation of the various administrative boards into not 
less than twenty departments. This article reads as follows: — 

"On or before Januarj^ first, nineteen hundred twenty-one, the execu- 
tive and administrative work of the commonwealth shall be organized in 
not more than twenty departments, in one of which every executive and 
administrative office, board and commission, except those officers serving 
directly under the governor or the council, shall be placed. Such depart- 
ments shall be under such supervision and regulation as the general court 
may from time to time prescribe by law." 

In accordance with this constitutional mandate, the Legislature pro- 
vided that the Commission on Administration and Finance shall "serve 
directly under the governor and council within the meaning of Article 
LXVI of the amendments to the constitution of the commonwealth." 
G. L. (Ter. Ed.) c. 7, § 2. 

The question to be decided is whether, by virtue of this last-mentioned 
statute, the Governor and Executive Council were empowered to review 
the conduct of the Commission in deducting from the contract price on 
certain purchases of coal various amounts found by the Commission to be 
due to the Commonwealth on account of the coal falling below the contract 
requirements; to determine, notwithstanding the decision of the Commis- 
sion, that no deductions should be made; and to order the Commission 
to cause the amounts so deducted to be paid to the vendors. 

The Commission on Administration and Finance was created by St. 
1922, c. 545, and the authority originally imposed has been in all respects 
continued. If this statute can rightly be construed as accomplishing any 
more than providing for the proper allocation of the Commission in pur- 
suance to the article of amendment, then it did not, either expressly or by 
implication, transfer to the Governor and Council the authority thereto- 
fore imposed upon the Commission; and neither did it empower the 
Governor and Council to limit or curtail the power of the Commission in 



P.D. 12. 35 

dealing with matters which, by a complete and elaborate statutory system, 
still continued to be vested in this Commission. It is apparent that the 
Legislature perceived nothing in section 2 inconsistent with the full 
exercise of the specific authority continued to be granted to the Commis- 
sion in the other sections of chapter 7, which impose various definite 
duties and obligations upon the Commission. The power of this body in 
these particulars has remained unimpaired and unaffected by section 2. 
This section must be construed with the other pertinent statutes so as to 
compose a workable and harmonious statutory system. Decatur v. Auditor 
of Peabody, 251 Mass. 82; Goodale v. County Commissioners, 277 Mass. 144. 

Section 2 can be fairly and reasonably construed as granting to the 
Governor and Council the right "to see that the money appropriated 
is properly expended therein." See III Op. Atty. Gen. 226, 230, an 
opinion which distinguishes the duty of the Governor in the investigation 
of the expenditures of money by departments under his immediate super- 
vision and such expenditures by all other departments. The instant 
section cannot be stretched so as to warrant the substitution by the 
Governor and Council of their judgment and discretion for that of the 
Commission in the determination of questions which are by law entrusted 
to the Commission. 

The general authority to contract for supplies, which by statute is 
imposed upon this statutory board, includes within its scope every other 
power reasonably necessary and incidental to the full and complete exer- 
cise of such authority. The form and substance of every such contract 
is exclusively within the province of this Commission. No other statu- 
tory board or official has any right whatever to fix or define the conditions, 
terms or provisions of such a contract. The requirements of the statute 
are clear and must be respected. The Legislature posited this right in the 
Commission alone. 

On the other hand, there is no provision of the Constitution nor of the 
statutes that authorizes the Governor and Council to make such con- 
tracts or to alter or amend their terms. The duties and powers of the 
Executive Council have been frequently alluded to in the opinions of the 
Supreme Court. There is nothing contained in these opinions that would 
warrant the sHghtest intimation that the Governor and Council possess 
the power now under consideration. Furthermore, a search of the records 
of this department does not disclose any precedent for the present action 
of the Governor and Council. An examination of the debates of the Con- 
stitutional Convention which framed the said article of amendment to the 
Constitution is barren of anything indicating that there should be any 
transfer of the power in question from the statutory body then having 
such authority, or that, upon the creation by the Legislature of the present 
Commission on Administration and Finance, there then should be any 
such transfer. 

There are certain matters set forth in chapter 7 concerning which the 
Commission must function, subject to the approval of the Governor and 
Council or in conjunction with the Governor, but there is no such par- 
ticipating provision in reference to the expenditure of money on contracts. 
The Legislature, therefore, by impHcation at least, intended that in such 
matters the Commission alone should act. Besides, the omission to give 
the Governor and Council any joint control or approval in the making of 
contracts for supplies is of persuasive significance, especially where, as 
here, the only authority expressly granted is to approve the rules and 
regulations of the Commission governing such contracts. 



36 P.D. 12. 

The Commonwealth is not without remedy in case the Commission 
honestly goes beyond the orbit of the law, for in that event, no contractual 
relations have been created and no liability has thereby been incurred. 
Where the Commission has been shown to have acted in bad faith, con- 
tracts so made may be easily avoided and the offending Commissioners 
may thereby merit disciplinary action. Where, however, they are acting 
in good faith and within the scope of their authority, then their determina- 
tion of facts is final, and in all such instances the Governor and Council 
are without authority to supersede their judgment and discretion for that 
of the Commission. No hardship can result to those selling supplies to 
the Commonwealth. They are presumed to know the authority of the 
public agency with which they execute contracts. If their rights have been 
impaired by the unwarranted action of this agency, or if their contracts 
have been breached to their damage, then they may have recourse to 
the courts, as the Commonwealth has already by appropriate legislation 
consented in such cases to be impleaded in the courts. 

The testimony adduced at the hearings held before the Governor and 
Council has not been reviewed. No transcript of the evidence has as yet 
been made. It is not necessary to determine whether or not the decision 
of the Governor and Council is supported by the evidence. That would 
only be important if the Governor and Council had the right to hear the 
matter. Accordingly, the correctness of that decision is not material, 
because the Governor and Council never had any right to make any de- 
cision whatever. 

It must therefore be held that the Governor and Council had no au- 
thority whatever to adopt the vote of December 11, 1936, that the pro- 
ceedings which resulted in such a vote were without sanction of law, and 
that the resulting decision is a mere nullity. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Alcoholic Beverages — Wholesalers^ and Importers^ Licenses — Vote of 

Town. 

Dec. 21, 1936. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You have asked my opinion as follows: — 

"This Commission desires to obtain your opinion upon certain questions 
that have come to it regarding the granting of licenses to wholesalers and 
importers in the city of Medford and towns of Wakefield and Milton, 
arising because of the vote in those places on November 3, 1936. All three 
places voted 'No' on questions 1 and 2, and 'Yes' on question 3. At the 
present time there are two wholesalers' and importers' licenses for the sale 
of alcoholic beverages exercised in Medford, and one such license exer- 
cised in Milton, and one such license exercised in Wakefield. All four of 
these licensees indicate their desire to apply for renewals of their several 
licenses. 

The question upon which we desire your opinion is whether this Com- 
mission may issue, in accordance with G. L. (Ter. Ed.) c. 138, § 18, as 
amended, licenses to individuals or corporations properly qualified as 
wholesalers and importers in the places mentioned, irrespective of the 
votes of those places upon questions 1 and 2, hereinbefore stated." 



NO 



P.D. 12. 37 

I answer your question to the effect that if a town has voted "Yes" 
upon question 3, which appeared upon ballots under the authority of 
G. L. (Ter. Ed.) c. 138, § 11, as amended by St. 1936, c. 207, § 1, your 
Commission may issue licenses to wholesalers and importers in such towns, 
under the provisions of section 18 of said chapter 138, as amended; and 
you may do so irrespective of the fact that the town voted "No" upon 
questions 1 and 2, also provided for by said section 11, as amended. 

Question 3 reads as follows : — 

"3. Shall licenses be granted in this city (or town) for 
the sale therein of all alcoholic beverages in packages, so 
called, not to be drunk on the premises?" 

Very truly yours, 

Paul A. Din^ER, Attorney General. 

Schools — Transportation of Pupils — Private Schools. 

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

Dear Sir: — You have asked my opinion upon four questions con- 
cerning transportation of pupils attending private schools, as permitted 
by G. L. (Ter. Ed.) c. 40, § 5 (2), as amended by St. 1936, c. 390, which, 
in its portion added by the amending statute of 1936, reads : — 

" Pupils attending private schools of elementary and high school grade, 
except such schools as are operated for profit, in whole or in part, shall be 
entitled to the same rights and privileges as to transportation to and 
from school as are provided herein for pupils of public schools." 

Said G. L. (Ter. Ed.) c. 40, § 5 (2), before the above-mentioned portion 
was added read: — 

"For the support of public schools authorized or required by law, 
and for conveying pupils to and from the public schools, or, if it maintains 
no high school or public school of corresponding grade, but affords high 
school instruction by sending pupils to other towns, for the necessary 
transportation expenses of such pupils, the same to be expended by the 
school committee in its discretion." 

It is to be borne in mind that the private school pupil, as regards his 
transportation to and from the private school which he attends, is en- 
titled to the same rights and privileges as the pupil attending a public 
school is granted as incidental to the execution of the first part of said 
clause 2 as last above quoted. 

Those rights and privileges, as regards pupils of schools of elementary 
grades, appear to be such as are protected by G. L. (Ter. Ed.) c. 71, § 68, 
as amended; and as regards pupils of schools of high school grade by 
section 6 of said chapter 71. 

Your first question reads : — 

"Shall the towns and cities provide transportation to private school 
pupils who live over two miles from both a public and private school?" 

1. I answer your question to the effect that cities and towns should 
provide transportation to private school pupils who live over two miles 



38 P.D. 12. 

from the private school which they attend, irrespective of how far they 
may live from a public school. 
Your second question reads : — 

"Shall the towns and cities base their two-mile limit from the private 
school the pupil is attending or the one which the parents desire him to 
attend, irrespective of its location?" 

2. The pupil is entitled to attend any private school of the class named 
in the added portion of said clause 2, and is entitled to transportation to 
and from such school, irrespective of its location, so long as it is within the 
limits of the town where he resides, if it be a school of elementary grades. 
If it be a school of high school grade, he will be entitled to transportation 
to it if in the town where he resides; and if it be outside the town of his 
residence, then the same general conditions exist as would entitle a pupil 
desirous of attending a public high school outside his town of residence 
to transportation there under the provisions of G. L. (Ter. Ed.) c. 71, 
§§ 5 and 6. 

Your third question reads : — 

"If the answer to question numbered 1 is yes, does this Umit transpor- 
tation to the nearest public school even though the private school pupil 
has to walk a total of over two miles, say partly before reaching the 
school bus stop, and partly after leaving public school grounds?" 

3. I answer this question in the negative. The pupil is entitled to 
transportation to the private school which he attends, not merely to the 
nearest public school. 

In view of the opinion given by me to the Joint Committee on Educa- 
tion, on February 17, 1936 (Attorney General's Report, 1936, p. 40), 
relative to the general subject matter embodied in the said amendment 
to G. L. (Ter. Ed.) c. 40, § 5 (2), there is no occasion for me to render a 
further opinion upon the constitutionality of said amendment, as you 
request. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Inspector of Animals — Municipality — Appointment. 

Dec. 23, 1936. 
Hon. Howard H. Murphy, Commissioner of Agriculture. 

Dear Sir : — You have called my attention to a situation which has 
arisen with relation to the nomination and appointment of an inspector 
of animals for a certain city. 

You inform me that by the terms of the charter of such city "any per- 
son appointed to a position for service in the city . . . shall have resided 
in the city for six consecutive months prior to the date of the appointment." 

You also advise me in effect that there is no registered veterinary sur- 
geon resident in said city, and that only one inspector is appointed for 
such city. 

By the provisions of G. L. (Ter. Ed.) c. 129, § 15, it is specifically provided 
that : — 

"In cities at least one such inspector shall be a registered veterinary 
surgeon." 



P.D. 12. 39 

This provision of the General Laws is binding upon both State and 
municipal authorities. No appointment for this position, under the cir- 
cumstances which you describe, can be made contrary to this provision. 
Hence, one who is not a veterinary surgeon may not be appointed to the 
position. 

On the other hand, the terms of the city charter to which you have 
called my attention are likewise legislative enactments and limit the 
authority of the appointing officer. The latter has no power to appoint 
a person in violation of the specific charter prohibition. These two legis- 
lative enactments are not in and of themselves in conflict, but a situation 
appears to have arisen in which, since the appointing officer is without 
authority to make the only form of appointment which the provisions of 
G. L. (Ter. Ed.) c. 129, § 15, allow him to make, because of existing con- 
ditions over which he has no control, it has become impossible for him to 
make any appointment to fill the vacancj^ in said position. In the absence 
of any saving clause in said section 15 providing for appointment under 
unusual circumstances in some manner other than that specified by the 
language of the said section, and in view of the limited authority vested 
in the municipal appointing officer by the city charter, no appointment 
can lawfully be made. Copelatid v. Springfield, 166 Mass. 498; Logan v. 
Lawrence, 201 Mass. 506. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Utilities — J urisdiction to inspect and approve Containers for Gas. 

Dec. 28, 1936. 
Commissioners of the Department of Public Utilities. 

Gentlemen : — You have asked my opinion as to whether you are 
correct in your view that you have no jurisdiction to inspect and approve 
two holders for illuminating gas of a corporation in Salem which does not 
engage in the manufacture and distribution of gas. I am of the opinion 
that the view which you express in the letter, to the effect that you have 
no jurisdiction in this matter, is correct. 

The jurisdiction of your department in relation to such matters is 
limited, under the terms of G. L. (Ter. Ed.) c. 164, to those gas companies 
which are organized under the laws of the Commonwealth for the purpose 
of making and selling, or distributing and selling, gas made in the Com- 
monwealth. 

You advise me that this corporation is not organized for such a purpose 
and does not engage in the manufacture and distribution of gas. This 
being so, jurisdiction to inspect and approve holders of gas which this 
corporation may have on its grounds is not part of your duties. 

Section 105A of said chapter 164, inserted by St. 1932, c. 119, to which 
you refer, which gives authority to regulate the storage, transportation 
and distribution of gas and the pressure under which these operations 
may be carried on, read in connection with the entire context of chapter 
164, does not extend your authority to such regulation and control over 
companies which do not engage in the manufacture and distribution of gas. 

Since this matter is not within your jurisdiction, it would seem that 
the inspection and approval of the tanks to which you refer would come 
witliin the province of the Department of Public Safety, and that it 
would be the duty of that department, through the Fire Marshal, to con- 



40 P.D. 12. 

trol the tanks in question, under the provisions of the rules made by the 
State Fire Marshal and approved by the Commissioner of Public Safety 
and by the Governor and Council on August 22, 1935. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Hospital — Superintendent — Retirement Age. 

Dec. 30, 1936. 
His Excellency James M. Curley, Governor of the Commonwealth. 

Sir: — Your Excellency has requested my opinion in the following 
communication : — 

"The Commissioner of Mental Diseases ... is desirous of appointing 
as superintendent of the Boston State Hospital Dr. J. V. Thuot, of New 
Bedford. 

The Associate Commissioners have raised objections on the ground 
that Doctor Thuot is over seventy years of age, the doctor being about 
seventy-one, according to the records. I am desirous for an opinion . . . 
as to whether the Commissioner has the right to appoint, or whether the 
Associate Commissioners are right in their contention that the law does 
not permit the appointment of a person who is over seventy years of age." 

I am of the opinion that the appointment of a man over seventy years 
of age as superintendent of a State hospital may not properly be made. 

The statutes require the retirement from the service of the Common- 
wealth of one occupying such a position after "reaching the age of seventy." 
It follows that the appointment of one over seventy to such a position is 
not contemplated by our laws, and would be a futile act inasmuch as the 
appointee could not remain in the service. 

With relation to the State Retirement Association and to the Common- 
wealth's service, it is set forth in G. L. (Ter. Ed.) c. 32, § 2 (2), as follows: — 

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

A person who occupies the position of superintendent of a State hos- 
pital would not fall within that class of officers excepted b}^ the terms of 
paragraph (3) of said section 2, nor is he for any other reason excluded 
from the above-quoted provisions of said section 2. 

It has been held in many opinions of the Attorneys General that per- 
sons occupying positions in the Commonwealth's service comparable to 
that of superintendent of a State hospital are "employees" of the Com- 
monwealth, as the quoted word is used in said G. L. (Ter. Ed.) c. 32, 
and are required to leave its service when they attain the age of seventy. 
See opinion of the Attorney General to the Secretary of the Common- 
wealth, dated December 4, 1936 (ante, p. 25) ; Attorney General's Report, 
1932, p. 42; ibid., 1931, p. 132; VIII Op. Atty. Gen. 304. See also Goodale 
V. County Commissioners of Worcester, 277 Mass. 144. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 41 

Alcoholic Beverages — Local Licensing Authorities — Hours for Sales — 

Restaurants. 

Dec. 30, 1936. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You have requested my opinion as follows: — 

"The Commission respectfully requests your opinion as to whether or 
not, in view of the provisions of sections 12 and 33 of the Liquor Control 
Act, local licensing authorities may on Sundays, during the period between 
one o'clock p.m. and eleven o'clock p.m., restrict the hours during which 
alcoholic beverages can legally be sold in hotels, restaurants and clubs." 

Licensing authorities have the power to fix the hours during which 
sales of alcoholic beverages, under section 12 of G. L. (Ter. Ed.) c. 138, 
as amended, may be made, except as specific provisions have been set 
forth in said chapter by the Legislature with regard to certain periods of 
time. 

On secular days the Legislature has provided that between 1 and 8 a.m. 
there shall be no sales, and that between 11 a.m. and 11 p.m. no restric- 
tions shall be placed upon the time of sale. This leaves only the time 
between 8 a.m. and 11 a.m., and between 11 p.m. and 1 a.m. in which the 
local authorities may fix the hours for sale. 

On Sundays the Legislature has specifically provided only that no sales 
may be made before 1 p.m., so that the local licensing authorities may 
fix the hours for sales during the remainder of Sunday. 

These considerations answer your question. The local licensing au- 
thorities have also the added right, with relation to a "restaurant license" 
under said section 12, to determine when granting it whether it shall 
apply to secular days only or shall apply to Sundays as well. 

The applicable portions of the statutes (G. L. [Ter. Ed.] c. 138, as 
amended by St. 1935, c. 468), read: — 

"Section 12. . . . Upon an application for a restaurant ficense, the 
local licensing authorities may in their discretion grant such a license 
authorizing the sale of alcoholic beverages on all days of the week or one 
authorizing such sale on secular days only, . . . 

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

Section 33. . . . No holder of a tavern license . . . , no other licensee 
under section twelve shall sell any such beverages on Sundays before one 
o'clock post meridian, . . ." 

Very truly yours, 

Paul A. Dever, Attorney General. 



42 \ P.D. 12. 

Alcoholic Beverages — Number of Licenses for Package Goods — Stores in 

Boston. 

Dec. 30, 1936. 
Alcoholic Beverages Control Commission. 

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

"Under the provisions of St. 1936, c. 245, the number of 'package 
goods' store licenses which could be granted in the city of Boston was 
reduced from 350 to 303. At the time when the bill from which this act 
resulted was reported to the Legislature, there were 303 such licenses 
outstanding in the city of Boston. After that time, but prior to the 
enactment stage, an additional license was issued bringing the total to 
304. After the act had received the approval of His Excellency the Gov- 
ernor, but prior to its effective date, another such license was issued bring- 
ing the total number of 'package goods' store licenses to 305. 

We respectfully request your opinion as to whether or not, in view of 
the circumstances above quoted, there may be granted in the city of 
Boston 305 licenses under the provisions of section 15 of the Liquor Con- 
trol Act if all of the said licenses are renewals and not original licenses." 

No more than 303 "package goods" store licenses, that is, licenses for 
the sale of alcoholic beverages not to be drunk on the premises, issued 
under G. L. (Ter. Ed.) c. 138, § 15, as amended, may be granted in the 
city of Boston. 

It is immaterial that one or more of said licenses in excess of 303 were 
issued prior to the effective date of St. 1936, c. 245. Since that act, 
amending G. L. (Ter. Ed.) c. 138, § 17, as previously amended, became 
effective, its provisions relative to the number of such licenses which 
may be granted in Boston are controlhng and limit such number to 303. 

The applicable portion of G. L. (Ter. Ed.) c. 138, § 17, as amended, 
reads : — 

". . . and provided, further, that in the city of Boston licenses under 
section twelve may be granted up to a total number not exceeding one 
thousand and licenses under section fifteen up to a total number not exceeding 
three hundred and three but no further original licenses under said section 
fifteen shall be granted in said city until the number of licenses outstand- 
ing thereunder shall have been reduced to less than two hundred and 
fifty . . ." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Comptroller — Warrant — Certificate — Approval. 

Jan. 4, 1937. 
Mr. Karl H. Oliver, Deputy Treasurer and Receiver General. 

Dear Sir: — You advise me that you are in receipt of a warrant of 
the Governor, approved by the Council, for the payment of $150,508.06 
to the George A. Fuller Company, and that the said warrant does not 
bear the certificate of the Comptroller. You enclose a letter addressed to 
the Treasurer and Receiver General by the Emergency Public Works 
Commission, under date of December 29, 1936, and a copy of a letter dated 



P.D. 12. • 43 

December 31, 1936, from that Commission to the Comptroller, the first 
setting forth various objections to the payment of this claim, and the 
second disclosing a vote of the Commission, on December 21, 1936, to 
the effect that such payment should not be made. 

You request my opinion whether payment to the said company can 
now be legally made in accordance with the aforesaid warrant. 

The George A. Fuller Company, on May 23, 1934, entered into a writ- 
ten contract with the Commonwealth for the construction of a portion of 
the Concord Turnpike, so called, for the sum of $364,652.43. The con- 
tract was included among the projects approved by the Emergency Public 
Works Commission, hereinafter referred to as the Commission, acting 
under and in accordance with the pt-ovisions of St. 1933, c. 365. This 
contract was completed on October 22, 1934, according to the records of 
the Department of PubHc Works, or on May 22, 1935, as disclosed by the 
records of the Emergency Public Works Commission. On November 10, 
1936, a written estimate calling for the payment of $150,508.06 to the 
George A. Fuller Company, hereinafter called the Company, was signed 
by all three Commissioners of the Department of Public Works, herein- 
after referred to as the Department. This estimate set forth the total 
value of the work done as $615,638.80, and that the previous payments 
amounted to $465,130.74, leaving a balance due of $150,508.06. There 
was attached to this estimate a second sheet, containing twenty-eight 
items totaling $135,000, and which was therein designated as "extra 
allowance." This estimate was delivered to the Comptroller, who trans- 
mitted it to the Commission, which on December 21, 1936, adopted the 
following vote : — 

''R 5 — Arlington-Belmont-Lexington-Lincoln. The Commission con- 
sidered at length the claim of the George A. Fuller Co. for further 'extra 
allowance' in the sum of $135,000 on Mass. State Project R 5. After 
consideration it was the unanimous opinion of the commission that the 
claim is in excess of the allocation for this project by approximately the 
amount of the 'extra allowance' of $135,000, that there are no funds 
available at present from the amounts borrowed by the Commonwealth 
and from grants from the Federal government for the increase in the 
allocation, that no increase in the allocation has been requested by the 
Public Works Department, and that although requested by the Commis- 
sion in a letter, dated November 12th, to Wilham F. Callahan, Commis- 
sioner of the Department of Public Works, no facts about this claim 
have been submitted by the Public Works Department, and that on the 
basis of all the facts in the possession of the commission the claim ought 
not on its merits to be paid." 

Proceedings were then had before the Governor and Council which, as 
shown by the records of the Executive Secretary, were as follows: — 

"Meeting of Tuesday, December 29, 1936. 

A representative of the George A. Fuller Co. was heard with relation to 
a claim for 'extra allowance' on contract #2901, dated May 23, 1934. 
The matter was continued to Wednesday, December 30, 1936, at 1 p.m. 

Meeting of Wednesday, December 30, 1936. 

The hearing on the petition of the George A. Fuller Co. for 'extra allow- 
ance' on contract #2901, dated May 23, 1934, was continued, representa- 



44 P.D. 12. 

tives of said company, the Emergency Public Works Commission, and the 
Attorney General's office, being present. Following a lengthy discussion, 
a recess was had in order that the Department of Public Works and the 
Emergency Public Works Commission might confer with relation to the 
merits of the claim. Later William F. Callahan, Commissioner, Depart- 
ment of Public Works, and Mr. Henry Lefavour, Chairman of the Emer- 
gency Public Works Commission, appeared before the Council and stated 
that they had not arrived at an agreement as to the facts in said petition, 
and the matter went over. 

Meeting of Thursday, December 31, 1936. 
The Council received the following from the George A. Fuller Co. : 

'December 28th, 1936. 

His Excellency, The Governor, Hon. James M. Curley, State House, 

Boston. 

Gentlemen of the Governor's Council: — The George A. Fuller 
Company hereby appeals from the decision of a vote of the Emergency 
Public Works Commission, dated December 21st 1936, in reference to 
allowance of our claim for $135,000. 

This appeal is made pursuant to the provisions of G. L., c. 30, § 5. 

Respectfully submitted, 

George A. Fuller Company, 
(Signed) Wm. J. Collins.' 

The following motion was then adopted : — 

That the appeal of the Fuller Construction Company be honored and 
that we, by virtue of the powers and authority vested in the Governor 
and Council by the Constitution and the statutes of the Commonwealth, 
and with particular reference to chapter 30, section 5, that we. His Ex- 
cellency the Governor and the Council, hereby determine that there is 
due and payable to the George A. Fuller Company from the Common- 
wealth the sum of One Hundred and Thirty-five Thousand Dollars 
($135,000.00), and we do hereby annul the vote or order of the Emer- 
gency Public Works Commission as of December 21, 1936. 

It was then voted to approve Treasurer's Warrant #290, entitled 'Emer- 
gency Pubhc Works Commission,' in the sum of $150,508.06." 

Before such final action was taken, the Comptroller, on December 31, 
1936, notified the Governor and Council that he could not certify this 
account for payment as the Commission had refused to give its written 
approval to any changes or alterations in the contract, and, further, be- 
cause he had been advised by an Assistant Attorney General that such 
approval was requisite before payment could be made. The Governor 
and Council were orally advised in open meeting on December 30, 1936, 
by this same Assistant Attorney General, whom they had invited to ap- 
pear, that unless and until such written approval was had no payment 
could be authorized. 

Although the original contract price was $364,652.43 and the contractor 
calls for payments which in all will amount to $615,638.80, the Governor 
and Council are apparently willing that the excess over the contract price, 
amounting to $250,986.36, should be paid to the Company. The Com- 



P.D. 12. 45 

pany claims the extra work and materials were ordered by the Department 
and that in effect the contract was so amended. Amendments are ordi- 
narily subsidiary and incidental to the principal contract, but public con- 
tracts cannot be so substantially and essentially modified and altered as 
to virtually result in a substitution of a new contract for the old by the 
mere device of an amendment. Public policy prevents such a circumven- 
tion of the law. Morse v. Boston, 253 Mass. 247. Although the amount 
claimed as extra seems high in comparison with the contract price, no 
intimation is now made as to whether the whole transaction should be 
stricken down. 

I now pass to a discussion as to the effect of the failure of the Commis- 
sion to approve in writing alterations to the contract, the performance of 
which furnishes the basis for this claim for the extra allowance. 

The contract in question, under the heading "Provisions Prescribed by 
the State Emergency Public Works Commission," contained the following 
clauses, to wit : — 

" (3) After approval of plans and specifications has been obtained from 
this commission, no contracts shall be awarded for any work without the 
approval of this commission. 

(4) Subsequent to approval of the contract, no changes in the plans or 
specifications shall be made, and no changes or alterations shall be made 
which may involve either extra costs or deductions from the contract 
price, without the written approval of this commission." 

This contract was freely and voluntarily executed by the parties. There 
is nothing in the circumstances attending its execution savoring of mis- 
take, fraud or duress. No such contention is made. The clauses formed 
an essential and material part of the contract and in substance were those 
frequently found in agreements for the completion of public undertakings. 

It is in the interest of the general public that claims for extra work or 
materials should be seasonably made, in order that the details and items 
to be included therein should be checked and verified; and that authority 
to incur an obligation for such claims should be evidenced by documen- 
tary proof, usually assented to in writing by some responsible official or 
board, in order that disputes regarding the quantity, nature and prices 
of such extra work or materials might be eliminated, and so that the 
barriers created by the contract may be maintained and utilized to shield 
the public against demands of an excessive amount, of an unreasonable 
nature and of questionable character. No hardship is imposed upon the 
contractor by requiring of him strict observance of his contract. In in- 
sisting upon the production of a written approval to an amendment to 
the contract upon which he bases a claim, he is not obligated to do more 
than he is required to do by the terms of his contract, and by the terms 
of which he agreed, impliedly at least, to produce such approval in sup- 
port of such a claim, if he presented one. Such provisions are reasonable 
and fair and have been upheld and enforced by the courts. Plumley v. 
United States, 226 U. S. 545; Stuart v. Cambridge, 125 Mass. 102; Millen 
V. Boston, 217 Mass. 471; Crane Construction Co. v. Commonwealth, 290 
Mass. 249. 

Speaking of similar clauses in a municipal contract, it was said that 
"such provisions are intended to protect the public treasury, are easily 
complied with by the contractor, are reasonable in their nature and are 
to be enforced." Cashman v. Boston, 190 Mass. 215, 219. 



46 P.D. 12. 

The allowance of the aforesaid estimate of November 10, 1936, by the 
Department did not preclude the Commission from exercising its right 
to grant or withhold its written approval as expressly provided for in the 
contract. The Department was not the only representative of the Com- 
monwealth in the execution of this contract. The Commonwealth was 
represented by both the Department and the Commission, acting together. 
It is immaterial whether the power of the Commission, in the aspect of 
the contract now under consideration, was to permit in writing a change 
in the contract, acting independently and of its own accord, or to sanc- 
tion a change desired by the Department, because in either event, until 
such an amendment, whether originating with the Department or the 
Commission, was approved in writing by the Commission, it could never 
become effective. Milleti v. Boston, 217 Mass. 471, 472; Simpson v. 
Marlborough, 236 Mass. 210, 214; Leroy v. Worcester St. Ry. Co., 287 
Mass. 1. 

The written approval of the Commission was a condition precedent to 
liability, and the failure of the contractor to secure it bars recovery. 

There is nothing in the conclusions reached in the present opinion in- 
consistent or in any way at variance with the opinion given on Novem- 
ber 5, 1935, to Henry Lefavour, Chairman, Emergency Pubhc Works 
Commission, wherein it was stated that the Commission had no authority 
to approve payment of claims to contractors. The issue there was the 
statutory authority of the Commission in a single respect and not, as 
here, as to the effect of the failure of the Commission to give its written 
approval to a change in an existing contract, where, by the express terms 
of that contract, the power to give or withhold such approval was vested 
in the Commission. The lack of a grant of a particular authority by a 
statute is entirely different from the exercise of a different power granted 
by contract, and the legal incapacity to approve a payment actually due 
is distinct from the power of the Commission given by contract to refrain 
from doing an act the performance of which is essential before any liability 
to pay can attach. 

The statutory basis upon which the Governor and Council purported 
to act now calls for attention. 

It is evident that the proceedings of the Governor and Council, as shown 
by the records, which have been fully set forth above, were based upon 
G. L. (Ter. Ed.) c. 30, § 5, which reads as follows: — "In all cases where 
a question arises between executive or administrative departments, or 
officers or boards thereof, as to their respective jurisdictions or powers, or 
where such departments, or officers or boards thereof, issue conflicting 
orders or make conflicting rules and regulations, the governor and coun- 
cil may, on appeal by any such department or by any person affected 
thereby, determine the question, and order any such order, rule or regu- 
lation amended or annulled; provided, that this section shall not deprive 
any person of the right to pursue any other lawful remedy. The time 
within which such appeal may be taken shall be fixed by the governor and 
council." 

That statute was first enacted as Gen. St. 1919, c. 350, § 10, which 
chapter was passed entirely for the purpose of rearranging the various 
executive and administrative agencies of the Commonwealth into not more 
than twenty departments, in accordance with the constitutional mandate 
expressed in the sixty-sixth article of amendment, which had been ratified 
and adopted by the people on November 5, 1918. The section in question 
is a precautionary measure, furnishing a means by which any conflicts 



P.D. 12. 47 

that might arise between the different departments in the operation of 
the nc^w arrangement could be easily and expeditiously adjusted and 
settled. Notwithstanding the circumstances giving rise to the enactment 
of this legislation, if there still could be any doubt as to the aims and 
objects sought to be reached, then such doubt is dispelled by the title to 
the original chapter, which reads "An Act to organize in departments the 
executive and administrative functions of the Commonwealth." The 
title has been said to be a part of a legislative act and may be referred to 
in appropriate cases as an aid in the ascertainment of the intent of its 
framers. Proprietors of Mills v. Randol-ph, 157 Mass. 345; Wheelwright v. 
Tax Commissioner, 235 Mass. 584, 586. 

The legitimate scope of the section in question does not rest entirely 
upon its legislative history. Its phraseology conclusively demonstrates 
that its operation is confined entirely to the harmonious functioning of 
the various departments, each in its own individual field and without in- 
terference with any other department. The settlement of interdepart- 
mental controversies is its only applicable subject. It was enacted to 
quiet controversies between officials and boards which, in the absence of 
a similar statute, have at times received attention from the courts. Bauer 
V. Mitchell, 247 Mass. 522; Dwpuis v. Reed, 289 Mass. 365. 

However, it is clear that there is no attempt by one State board to 
usurp the power of another board. Neither is there any conflicting con- 
tention between State agencies as to the boundaries of their respective 
powers. The authority of the Department or of the Commission in the 
premises is not challenged. No rule or regulation of either is sought to 
be annulled or amended. Accordingly, a contractor cannot resort to this 
section for the accomplishment of a purpose entirely foreign to its legiti- 
mate aim and limited scope, and attempt thereunder to present for allow- 
ance to the Governor and Council a claim for extra work and materials 
under a contract which, on account of the admitted failure of the con- 
tractor to comply with its terms, negatives the vahdity of such claim. 

The Governor and Council were entirely without jurisdiction to hear 
or determine this so-called appeal under said section 5. The issuance of 
the warrant as a result of such proceedings has no force or effect. It 
lacks every semblance of validity. 

The failure of the Comptroller to certify the account is now considered. 

The Commission was created by St. 1933, c. 365. Section 5 of this act 
expressly provides : — 

"The state treasurer shall receive all moneys granted or loaned to the 
commonwealth under section two hundred and three of said Title II. 
Payment from the state treasury for expenditures incurred under this act 
shall be made upon vouchers filed with the comptroller in accordance 
with the procedure prescribed under section eighteen of chapter twenty- 
nine of the General Laws, and all other provisions of said chapter twenty- 
nine shall apply in the case of any project undertaken under this act or 
any expenditure necessary for carrying out the purposes hereof, except in 
so far as such provisions of law may be in conflict with applicable federal 
laws and regulations." 

Payments, therefore, must be made in compUance with G. L. (Ter. Ed.) 
c. 29, and especially in accord mth section 18, which, in so far as is now 
pertinent, provides that "no money shall be paid by the commonwealth 
without a warrant from the governor drawn in accordance with an appro- 
priation then in effect, and after the demand or account to be paid has been 
certified by the comptroller." 



ft. 



48 P.D. 12. 

The necessity of securing the certification of the Comptroller is further 
emphasized by the enumeration of specific instances, not including an 
account like that of the Company, wherein such certification is expressly 
exempted. No payment may be made even upon a warrant from the 
Governor unless the demand account to be paid upon the same has been 
certified by the Comptroller. The Constitution of Massachusetts provides 
(Part 2nd, c. II, § I, art. XI) : — 

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

The section last mentioned was enacted pursuant to this constitutional 
authority, and so were its preceding legislative measures governing the 
same subject. 

Prior to the enactment of St. 1923, c. 362, § 13, the duty laid upon the 
Comptroller in the above respect rested with the Auditor (G. L. c. 11, 
§ 7), and the certification now required by G. L. (Ter. Ed.) c. 29, § 18, 
was formerly that of the Auditor. 

Statutory provisions regulating the withdrawal of money from the 
public treasury have existed since 1849. 

In 1866, the Governor and Council differed with the Auditor concern- 
ing the payment of an account and sought an opinion from the Supreme 
Judicial Court, as follows: "Does the power of finally judging upon and 
deciding such question rest with the governor and council, or with the 
auditor of accounts, under the constitution, pt. 2, c. 2, § 1, art. 11, and 
Gen. Sts. c. 15, §§3, 30, and any other provisions of the constitution or 
statutes bearing on the subject?" Gen. Sts. c. 15, § 30, referred to in 
the above question, provided, in so far as is now pertinent: "No warrant 
shall be drawn for the payment of any account or demand, except for the 
payrolls of the council, senate and house of representatives, unless the 
same is certified by the auditor." 

The court remarked: "By Gen. Sts. c. 15, § 3, the legislature have pro- 
vided that all accounts and demands against the state shall be examined 
and scrutinized by the auditor of accounts, who is required to make a 
certificate specifying the amount due on each demand, the law authoriz- 
ing its payment, and the head of expenditures to which it is to be charged ; 
which certificate he is required to transmit to the governor. And by § 30 
of the same chapter it is further provided that no warrant shall be drawn 
for the payment of any account or demand, unless the same is certified 
by the auditor. Under these provisions of law, it is the opinion of the 
undersigned that no account or demand, which is required to be examined 
and scrutinized by the auditor, can properly come before the governor 
and council, for the purpose of payment, by a warrant under the hand of 
the governor unless the same be certified by the auditor, according to 
the requirements of the statutes." The court also answered that the 
Legislature could in any case provide for the issuance of warrants with- 
out a certificate of the Auditor, and that only in such cases could payment 
be made without such a certificate. Opinion of the Justices, 13 Allen, 593 
594. 



P.D. 12. 49 

The language of the instant statute, G. L. (Ter. Ed.) c. 29, § 18, rela- 
tive to the payment of money upon warrants, in view of the history of 
the legislation, indicates beyond question that the certification of the 
Comptroller is an essential prerequisite of the issuance of a vahd warrant 
for the payment of money. A warrant issued for the payment of the 
Company's claim which the Comptroller has refused to certify does 
violence to the Constitution and repudiates the salutary provisions of 
the governing statute. 

At the hearing before the Governor and Council, the Commission con- 
tended that there were not funds available to pay this extra allowance, 
so called. It appeared that funds in the amount of $1,265,000 had been 
allocated by the Commission for the performance of three road contracts, 
including the one in question, and that of this amount there now remains 
a credit balance of $30,256.25. The other two contracts have been com- 
pleted and all payments have been made. Over one hundred and fifty 
projects have been approved by the Commission and their completion is 
now being undertaken. If the extra allowance now claimed by the Com- 
pany is paid out of the funds entrusted to the Commission, it is evident 
that there will not be funds sufficient to complete these various projects. 
The Commission has no authority to exceed the appropriation made by 
the Legislature. G. L. (Ter. Ed.) c. 29, § 26. The fact that the Commis- 
sion is now in possession of funds ample to pay this allowance is no justi- 
fication for such payment if the Commission will thereby be unable to 
fully pay for undertakings for which it has already contracted. Adams v. 
County of Essex, 205 Mass. 189; Dijer v. Boston, 272 Mass. 265, 274. 

The Governor and Council have no authority to amend or alter a con- 
tract executed by the appropriate public officials and a third person for 
the construction of public works, and they cannot accomplish the same 
result by ordering payment to be made notwithstanding the terms of the 
contract, which bars such payment. The contract itself provides for the 
method Ijy which it might be amended so as to include extras. This power 
was reserved to the parties to the contract, and by implication negatives 
any presumption that such a power vests in some other official body. 

Mere hardship is no justification to absolve a party from the perform- 
ance of his contract. Roice v. Peabody, 207 Mass. 226; Morse v. Boston, 
260 Mass. 255, 263; United States v. Speann, 248 U. S. 132, 136. And if 
the situation is such as to commend itself to the sense of fairness and to 
the discriminatory judgment of the body entrusted with the appropriation 
of public funds and payment is believed to be in the interests of the general 
welfare, then relief may be afforded, because the law does not forbid the 
Legislature from being ''just in some cases where it is not required to be 
by the letter of paramount law." Earle v. Comryionwealth, 180 Mass. 579, 
583; Allen v. Commonwealth, 188 Mass. 59, 61. See Friend v. Gilbert, 108 
Mass. 408; Lawrence v. McAlvin, 109 Mass. 311. But whatever limita- 
tions there may be upon the power of the Legislature to provide for the 
payment of public funds in satisfaction of obligations whose justness merits 
recognition, it is clear that the power to appropriate monej^ for the pay- 
ment of such claims is the exclusive prerogative of the General Court. 
The Governor and Council have no such power. "An underlying feature 
of our form of government is that the power to raise money, levy taxes 
and control the expenditure of public funds is vested in the General Court.'' 
Opinion of the Justices, Mass. Adv. Sh. (1936) 1285, 1290. 

It is unnecessary to pause to consider other objections urged at the 



50 P.D. 12. 

hearing before the Governor and Council upon the allowance of the 
claim of the Company, since the result must be the same in any event. 

It is therefore apparent that warrant No. 290 of the Governor, approved 
by the Council and purporting to direct the payment to the George A. 
Fuller Company of the sum of $150,508.06, is of no force and effect. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Search and Seizure — State Prison Colony — Watch Officers. 

Jan. 8, 1937. 

Hon. Seymour H. Stone, Deputy Compiissioner of Correction, Acting 

Commissioner. 

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

"I should appreciate it if you would advise me whether or not watch 
officers at the State Prison Colony who have been appointed special State 
police officers, under authority of G. L. (Ter. Ed.) c. 127, § 127, would 
have the right in performing 'pohce duties about the premises' of the 
institution to stop private automobiles on the highways near the institu- 
tion and search them. 

This action would be necessary only at the time of an escape from the 
State Prison Colony." 

The instant statute does not give to watch officers authority to stop 
private automobiles on the highways near penal institutions and to search 
them when there has been an escape from such an institution. Their 
powers in this respect are not greater than those of the ordinary citizen 
in like circumstances. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Workmen's Compensation — Determination. 

Jan. 22, 1937. 
Department of Industrial Accidents. 

Gentlemen : — You have asked my opinion as follows : — 

"The department is in receipt of a communication from the Executive 
Department which reads as follows : — 

'At a meeting of the Governor and Council, held Thursday, December 
31, 1936, it was voted to approve the provisions of St. 1936, c. 403, so far 
as such action may be of legal effect.' 

St. 1936, c. 403, provides, in part: 'The terms laborers, workmen and 
mechanics . . . shall include other employees except members of a police 
or fire force, regardless of the nature of their work, of the commonwealth 
. . . , to such extent as the commonwealth . . . acting . . . through 
the governor and council . . . shall determine, as evidenced by a writing 
filed with the department.' 

The Industrial Accident Board, having considered the foregoing com- 
munication, voted to request the opinion of the Attorney General upon 
the following questions relative thereto : 



P.D. 12. 51 

1. Does the above-quoted communication, intended as the writing 
required by said chapter to be filed with the department, evidence a com- 
petent acceptance by the Governor and Council of the provisions of said 
St. 1936, c. 403? 

2. If it is your opinion that said writing evidences a competent ac- 
ceptance of said chapter 403, does such writing express a determination 
of the extent to which employees of the Commonwealth are included by 
such acceptance?" 

St. 1936, c. 403, does not by its terms require to be "approved" or 
accepted by the Governor and Council. The act did require, however, 
that the Commonwealth, acting through the Governor and Council, 
should determine to what extent the terms "laborers, workmen and me- 
chanics" should include other employees of the Commonwealth, such, 
for example, as foremen, subforemen, inspectors, superintendents, etc. 
The act further required that as evidence of the determination made by 
the Commonwealth, through its Governor and Council, as to those em- 
ploj^ees who should be included within the said terms a writing should be 
filed with your department, presumably by the Governor and Council. 

I therefore answer your second question in the negative; and your first 
question to the effect that whether or not there was a competent accept- 
ance of the said act is immaterial, since there was no necessity for any 
acceptance by the terms of said act, as I have already pointed out. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Armory — Plumbing — Local Ordinance. 

Jan. 25, 1937. 
Mr. Arthur F. Ford, Superintendent of Armories. 

Dear Sir : — In reply to your oral request for the Attorney General's 
advice as to whether a local ordinance of the city of Holyoke, that no 
plumbing shall be done in that city without a permit from a local plumb- 
ing inspector given to a master plumber, requires the employment of a 
master plumber with such a permit to perform work in one of the Com- 
monwealth's armories, let me say that such an ordinance has no applica- 
tion to work done upon the Commonwealth's own property. See Attorney 
General's Report, 1932, p. 86; ibid., 1935, p. 38; Teasdale v. Newell <& 
Snowling Construction Co., 192 Mass. 440, 443. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Commission — Erection of Bath House — Improve- 
ment of Location. 

Jan. 29, 1937. 

Hon. Eugene C. Hultman, Commissioner, Metropolitan District Com- 
mission. 

Dear Sir: — Replying to your letter of recent date, with reference to 
your duties under the terms of St. 1936, c. 331, the building of a bath 
house at the given place is the main purpose of the said chapter 331. The 
making of improvements at the location is incidental thereto, for by the 
wording of the act they are to be "related" to the bath house and to be 



52 P.D. 12. 

made so as to make "the same" (and its approaches) "suitable and 
adequate for pubHc bathing." 

The terms of the statute are in such mandatory form as require you 
to do all the work therein referred to. If new conditions have arisen 
since the passage of the act, as you suggest, which make the building of 
the proposed bath house undesirable, you should immediately seek legis- 
lation for the repeal or amendment of the act; otherwise it will be j^our 
duty to proceed with the construction of the bath house with reasonable 
dispatch. You are not vested with such discretion, under the same 
chapter, as would warrant you in making improvements without building 
the bath house, as to which the improvements are to be related and sub- 
sidiary, as shown by the following language of the chapter — 

"and to make such related improvements at the location of such bath 
house and approaches thereto as may be necessary to make the same 
suitable and adequate for public bathing." 

In other words, the making of improvements is so closely connected 
with the erection of the bath house, by the context of the said chapter, 
that the Legislature has plainly shown an intention that the improvements 
shall not be made separate and apart from the erection of the bath house. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Works — Special Police — Municipalities — Work- 
men's Compensation. 

Jan. 29, 1937. 

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

Dear Sir: — Replying to your letter of recent date relative to the 
form of article XXV of your standard specifications, as it relates to "special 
uniformed police," I am advised that the "special uniformed police" 
referred to therein are police appointed by, and serving under, town 
governments. 

Such police are not employees of contractors; they are not, under the 
usual circumstances of their employment, servants of the Commonwealth, 
but are employees of towns. This was decided in a case heard in 1933 by 
the Industrial Accident Board, Bradley v. Employers' Liability, and with 
that decision I agree. 

This being so, these special uniformed pohce, who are obtained from 
the town authorities by the contractor, are not his employees, although 
under some arrangement with such authorities he usually paj^s their wages. 
Consequently, he should not be required to provide coverage for them 
under a workmen's compensation policy, upon which, as to them, the 
insurer will deny liability, as has been done on various occasions in the 
past. 

Accordingly, you should delete from your standard specifications all 
requirements obliging the contractor to have such special uniformed police 
who are town officers covered by workmen's compensation insurance, all 
agreements to reimburse the contractor for the premiums for coverage of 
such officers, and all requirements that the contractor should report the 
names of such police to his insuring company. 

It would be advisable for your department, if it finds that some pay- 
ment for possible injuries should be readily available to town officers who 



P.D. 12. 53 

may be hurt by reason of negligence while working in connection with a 
contractor's job, to ascertain whether some form of liability coverage will 
be written by casualty insurance companies, at a reasonable price, to 
insure the contractor against liability for injury to such officers, irrespec- 
tive of the Workmen's Compensation Law. 

If such form of coverage is available, your contracts might then be 
written so as to require those desiring to make contracts with the Com- 
monwealth to take out policies of insurance giving such coverage. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Governor and Council — Appointments — Salary — Department of Corpo- 
rations and Taxation. 

Feb. 3, 1937. 
His Excellency the Governor, and the Honorable Council. 

Gentlemen : — I am in receipt from you of four letters from the Chair- 
man of the Commission on Administration and Finance, — two dated 
January 22, 1937, and January 25, 1937, respectively, and addressed to 
His Excellency; and the remaining two similarly dated and addressed to 
His Excellency and the Council. These letters deal with the appointment 
on January 6, 1937, of two assistant inheritance tax examiners to the 
positions of senior inheritance tax examiners in the Division of Inheritance 
Taxes of the Department of Corporations and Taxation, by the Commis- 
sioner thereof, at salaries of $3,240 and $3,360, respectively, which were 
approved by the Governor and Council; and of the appointment of an 
individual as an income tax assessor in the Income Tax Division, at a 
salary of $4,080; and five other persons as deputy income tax assessors, 
at various salaries ranging from $1,800 to $2,500, — all of whom were 
appointed by the Commissioner, and whose respective appointments and 
salaries were approved by the Governor and Council. These letters also 
call attention to the action of the Governor and Council on December 30, 
1936, purporting to establish the salary of one Francis L. Cormack as 
income tax assessor at $3,720 a year; and approving the designation of 
Thomas P. Nugent as an income tax assessor at a salary of $3,180. 

The said correspondence also raises the question as to whether or not 
the Governor and Council were authorized to fix the salary of the deputy 
commis.sioner from a minimum of $5,700 to a maximum of $6,600; that 
of the second deputy commissioner from a minimum of $4,800 to a maxi- 
mum of $5,700; that of the assistant director. Corporation Tax Division, 
from a minimum of $3,600 to a maximum of $4,500; and that of the 
assistant director. Inheritance Tax Division, from a minimum of $3,600 
to a maximum of $4,500, as the action of the Governor and Council, 
taken on December 30, 1936, purported to do. There is a further inquiry 
contained in the said correspondence as to the authority of the Governor 
and Council to authorize the appointment of a temporary fish inspector 
for the period of three months, at the rate of $150 per month, upon the 
requisition of the State Inspector of Fish, which requisition was approved 
by the Commissioner of Conservation. 

You have requested my opinion as to the validity of each of the afore- 
said appointments, and have also raised the question as to whether the 
Governor and Council had authority to fix the rates of salaries above 
enumerated. 



54 P.D. 12. 

Recourse must be had to the governing statute for the ascertainment 
of the correct decision of the questions now presented. The appointing 
power of the Commissioner of Corporations and Taxation is set forth in 
G. L. (Ter. Ed.) c. 14, § 4, which reads as follows: — 

"The commissioner may, with the advice and consent of the governor 
and council, appoint and remove the following officers and subordinates 
in his department: 

A deputy commissioner and a second deputy, each at such salary as 
may be fixed by the commissioner, with the approval of the governor and 
council ; 

Directors of divisions, at such salary as may be fixed by the commis- 
sioner, with the approval of the governor and council; 

Such supervisors of assessors, assistants and examiners as the commisr 
sioner may deem necessary, subject to the approval of the governor and 
council, one income tax assessor for each district established by the com- 
missioner for the assessment and collection of the income tax, and such 
deputy income tax assessors, who may be members of local boards of 
assessors as the governor and council may deem necessary; 

A principal appraiser, at such salary as may be fixed by the commis- 
sioner, with the approval of the governor and council; 

Such assistants to the director of accounts as may from time to time 
be necessary to carry out sections forty-four to forty-seven, inclusive, of 
chapter thirty-five and sections thirty-five to forty-three, inclusive, of 
chapter forty-four. 

He may appoint two permanent clerks, and may appoint such assist- 
ants to the director of the income tax division, and such assistants and 
clerks to the income tax assessors, as the governor and council may deem 
necessary. 

He may appoint from time to time such appraisers as may be necessary 
to appraise property subject to the inheritance tax or to assist him in de- 
termining land values under section thirteen of chapter fifty-eight. 

He may appoint such additional officials, agents, clerks and other em- 
ployees as the work of the department requires and may remove them." 

That enactment not only measures the power of the Commissioner in 
respect to making appointments, but it also limits the exercise of this 
power in the particulars therein set forth in the statute. 

An inspection of the statute last enumerated shows that the Commis- 
sioner of Corporations and Taxation is authorized to appoint a deputy 
commissioner and a second deputy commissioner, the directors of di\'i- 
sions and the supervisors of assessors, assistants and examiners, income 
tax assessors and deputy income tax assessors, and a principal appraiser, 
only with the approval of the Governor and Council, and that the latter 
body must also approve the salaries of each of these subordinates, with 
the exception of the supervisors, the assistants, the examiners, the income 
tax assessors, and the deputy income tax assessors. Not only is the power 
of selection of the Commissioner subject to the approval of the Governor 
and Council in the instances above mentioned, but he is also unable to 
fix the salaries in some of the offices mentioned in the statute without 
similar approval from the Governor and Council. 

A general power of appointment has usually been held to include the 
right to fix the compensation of the appointees. The Commissioner of 
Corporations and Taxation, however, has no such general power of ap- 



P.D. 12. 55 

pointment, and in all cases, other than those where he has the right to 
fix the compensation subject to the approval of the Governor and Council, 
the right to fix the conipensation of his appointees has been entrusted by 
law to the Division of Personnel and Standardization. G. L. (Ter. Ed.) 
c. 80, §§ 45-47. 

It is therefore clear that the power to fix the compensation of sub- 
ordinates in the Department of (Corporations and Taxation is entrusted 
to the Commissioner, with the approval of the Governor and Council 
relative to those offices expressly set forth in the statute, and that as to 
all other subordinates their salaries are fixed by the Division of Personnel 
and Standardization. 

We pass now to a consideration of the appointment of the two assistant 
inheritance tax examiners to the position of senior inheritance tax exam- 
iners. The Governor and Council approved the establishment of the salary 
for each of these individuals, in one case in the amount of S3, 240, and in 
the second case in the amount of $3,360. The rules and regulations, however, 
of the Division of Personnel and Standardization fixed these salaries as rang- 
ing from $3,180 to $3,720. No attempt was made to modify these rules and 
regulations in so far as they pertain to fixing the salary of senior inherit- 
ance tax examiners. While it is true that under G. L. (Ter. Ed.) c. 14, 
§ 4, the Governor and Council have the right to approve the appointment 
by the Commissioner of such examiners, if he deemed they were neces- 
sary, yet there is no provision in this section which authorizes the Gov- 
ernor and Council to approve the salaries, which must be fixed in accord- 
ance with the classification and specifications already set up and existing 
by virtue of authority vested in the Commission on Administration and 
Finance under G. L. (Ter. Ed.) c. 30, § 46. 

The Governor and Council had no authority to override the powers of 
the Commission on Administration and Finance, carried on under their 
rules and regulations which have heretofore been approved, and the 
provisions for the establishment of such officials' salaries as are not spe- 
cifically I'equircd to be approved by the Governor and Council must be 
fixed under the specifications by the Commission on Administration and 
Finance, in the first instance. It therefore follows that the estabhshment 
of the salaries of these two senior inheritance tax examiners was not made 
in accordance with the law, and that the action of the Governor and 
Council on January 6, 1937, in establishing such salaries is void and 
without legal effect. 

The result is the same, whether the action of the Governor and Council 
attempted to create promotions in the case of these two individuals or 
attempted to create new appointments to original positions, because the 
Governor and Council were without any legal authority to approve the 
nominations of the Commissioner as promotions or to fix the salaries, as 
they attempted to do in their action of January 6, 1937. 

In reference to the appointment of the six individuals, one as an income 
tax assessor at a salary of $4,080, and the other five as deputy income 
tax assessors at salaries ranging from $1,800, in some instances, to $2,500 
in others, the same statute above mentioned applies in determining the 
legality of the action of the Governor and Council. The latter body had 
no right to fix these salaries, but they did have authority to approve the 
action of the Commissioner in naming these six new subordinates in his 
department. The Division of Personnel and Standardization fixed the 
salary of an income tax assessor in amounts ranging from $3,180 to $3,720, 



56 P.D. 12. 

and the compensation of the deputy income tax assessors from $2,100 to 
$2,820. These classifications were in full force and effect on January 6, 
1937, when the Council voted to establish the salaries above mentioned. 
The establishment, however, of the salaries for each and all of these posi- 
tions was required to be made under G. L. (Ter. Ed.) c. 30, §§ 45-50, by 
the Commission on Administration and Finance and in accordance with 
existing rules and regulations and specifications, none of which had been 
changed, as required by the last-mentioned section, to permit the estab- 
lishment of salaries in the case of each of these six individuals to the 
amounts in which they purported to have been established. 

The only function the Governor and Council had in reference to these 
six appointments was the approval of the appointment and not of the 
salary. It is therefore clear that so much of the action of the Commis- 
sioner as fixes salaries for these six appointments is void; and that so 
much of the action of the Governor and Council as approved these salaries 
is also of no force and effect. 

Although the appointment of these six persons to oflEice was not com- 
pleted until the action approving the same by the Governor and Council 
on January 6, 1937, the original appointment having been made on No- 
vember 30, 1936, the completed appointment taking place after the close 
of the fiscal year, there existed an appropriation, as I am informed by the 
Comptroller, made for the year 1936 generally, for the purpose of the 
maintenance of the oflBce and work of the Commissioner of Corporations 
and Taxation, which was intended to, and did, cover provision for salaries 
of subordinates in the Department of Corporations and Taxation, without 
naming them seriatim. 

I am therefore of the opinion that the appointment of these six persons 
was not contrary to the provisions of G. L. (Ter. Ed.) c. 29, § 27, because 
there was in fact an appropriation sufficient to cover the expenses of the 
salaries of all such persons, and that after the close of the fiscal year the 
Commissioner might continue expenditures from this general appropria- 
tion at the previously authorized rate until a new appropriation had been 
made. This being so, I am of the opinion that the appointment of these 
six persons was validly made and approved, but that their salaries have 
not been established according to law. 

The correspondence also refers to the fixing, on December 30, 1936, by 
the Governor and Council, of increased compensation for the deputy 
commissioner, the second deputy commissioner, the assistant director. 
Corporation Tax Division, and the assistant director, Inheritance Tax 
Division. 

The right to fix the salaries of the deputy commissioner and the second 
deputy commissioner is expressly entrusted to the Commissioner, with the 
approval of the Governor and Council, by the provisions of G. L. (Ter. 
Ed.) c. 14, § 4, notwithstanding that the amounts finally established 
might be excessive compared with the amounts of compensation paid to 
various other State officials. This being so, there is no question of law 
which arises on this phase of the matter. 

The attempt, however, by the Governor and Council to raise the com- 
pensation of the assistant director. Corporation Tax Division, and the 
assistant director, Inheritance Tax Division, was not subject to approval 
by the Governor and Council, but came under the jurisdiction of the 
Division of Personnel and Standardization, whose rules and regulations 
set the salary in each instance from $3,300 to $4,020. For the reasons 
above mentioned the action of the Governor and Council in attempting 



P.D. 12. 57 

to increase the salary in these two instances was contrary to the pro- 
visions of said chapter 30, sections 45 et seq., and consequently was of no 
force and effect. 

On December 30, 1936, the Governor and Council purported to estab- 
lish the salary of Francis L. Cormack, an income tax assessor, at $3,720 
a year. Mr. Cormack was at this time receiving $3,540. On the same 
date the Council purported to approve the designation of Thomas P. 
Nugent, who was then a deputy income tax assessor, to the designation 
of income tax assessor, at a salary of $3,180. 

, In the first instance the action of the Governor and Council finds no 
warrant in law, because the determination of the salary of Mr. Cormack 
came within the exclusive jurisdiction of the Division of Personnel and 
Standardization, which, as the records show, took no part in the purported 
increase of this official's salary. The action relative to Nugent was vir- 
tually a promotion with a consequential increase of salary. Such was 
contrary to the provisions of G. L. (Ter. Ed.) c. 30, § 47. Therefore, the 
action of the Governor and Council with reference to both of these officials 
was invalid. 

In reference to the action of the Governor and Council on January 6, 
1937, purporting to authorize the appointment of a deputy inspector of 
fish for three months at the rate of $150 a month, it is clear from the record 
that no emergency existed incurring extraordinary expenses, the payment 
for which was not otherwise provided for, and consequently there was no 
authority for transferring $450 from the extraordinary expense account, 
as provided for in G. L. (Ter. Ed.) c. 6, § 8. In the next place, the Gov- 
ernor and Council were without authority to create this new office and 
to approve the salary at the above rate, or, in fact, at any rate, as that 
power was inherent in the Di\dsion of Personnel and Standardization. I 
am informed that no appointment has ever been made to this temporary 
position, and I would therefore advise immediate retransfer of the $450 
to the extraordinaiy fund, simply as a matter of record, even though the 
original transfer was without validity. 

In reviewing the action of the Governor and Council in each and every 
one of the instances above enumerated in this opinion, I pass no judgment 
as to the wisdom of making any of the said appointments or of the desir- 
ability of retaining any of the present incumbents in their present offices. 
It is beyond my province to express any opinion on such matters. My 
solemn obligation is to decide the questions presented in accordance with 
the pertinent principles of law. I have no duty to pass upon the policy 
of administrative offices, but I am entirely confined to determining whether 
the action of any appointive agency in making the appointments in ques- 
tion was within its power and authority. I am concerned only with the 
question of legal power and not of administrative policy. 

I am, accordingly, of the opinion that the attempted promotion of the 
two assistant inheritance tax examiners was of no force and effect and 
that they still continue in their old positions; that the appointment of 
the six individuals — one as an income tax assessor and the other five as 
deputy income tax assessors — was valid and binding in so far as the 
appointments themselves were concerned, and that the salary for each is 
that fixed by the specifications, rules and regulations of the Division of 
Personnel and Standardization; that the action of the Governor and 
Coimcil in attempting to increase the salary of Cormack and to promote 
Nugent from a deputy income tax assessor to an income tax assessor was 
without the force of law; that the attempt of the Governor and Council 



58 P.D. 12. 

to increase the salary of the assistant director, Corporation Tax Division, 
and that of the assistant director. Inheritance Tax Division, was contrary 
to the provisions of law; and that the appointment of a temporary in- 
spector of fish was without legal support. 

Very respectfully yours, 

Paul A. Dever, Attorney General. 

Department of Public Works — Grade Crossings — Orders — Amendments. 

Feb. 3, 1937. 
Hon. William F. Callahan, Commissioner of Public Works. 
Dear Sir: — You have requested my advice as follows: — 

"This department has recently issued a number of decrees for the 
abolition of railroad grade crossings under G. L. (Ter. Ed.) c. 159, §§ 65-77, 
inclusive. It now appears that in two cases minor revisions of the decrees 
are necessary. In one case the revision consists of the taking of an addi- 
tional easement from the railroad company, and in the other case the 
revision consists of a change in location of a railroad side track and a 
driveway leading to it. 

The law does not specify the procedure to be followed in amending a 
decree which has been issued by this department, approved by the De- 
partment of Pubhc Utihties, and filed. 

Will you kindly advise me as to the general procedure to be followed." 

I am of the opinion that your department has authority, under G. L. 
(Ter. Ed.) c. 159, §§ 65-77, to amend an order made by it determining 
the manner and limits of a grade crossing abolition, even after it has been 
consented to by the Department of Public Utihties and been filed in the 
office of said department and of the Department of Public Works, and 
copies thereof served in accordance wuth the provisions of section 70 of 
said chapter 159. 

Authorities exercising an administrative or quasi-judicial authority 
have generally, under our laws, the inherent power to amend their find- 
ings or orders when it may become necessary. It is true that the instant 
statute does not specifically provide for such an amendment, yet, on the 
other hand, the statute does not state that the order of the Board shall 
be final. 

When the power was lodged in the courts to deal with the abolition of 
grade crossings and to make decrees relati.ve to the manner of apportion- 
ing the expenses thereof and the mode of doing the work of construction, 
the proceedings were carried on in equity, and a final decree was ultimately 
made by the court similar in kind to the order in question now made by 
the Commission under the instant statute. It was then held that such 
final decree in equity might be altered when necessity arose, through the 
medium of a bill of review, and that under such a bill the court might 
reform, change and amend the original decree so that it should be adapted 
to the requirements of justice and the legal rights of the parties, and that 
at a hearing upon such a bill of review all questions of present equity 
between the parties, whether arising in the original petition or from 
expenditures made in expectation of the enforcement of the original 
decree, would be open for consideration and adjustment. Boston d Maine 
R.R. V. Greenfield, 253 Mass. 391. 



P.D. 12. 59 

If a review of the final decree in a court of equity under the earlier 
statutes, which in effect was tantamount to an amendment of the order 
made by your department in the instant proceedings, was held to be 
proper and a necessary form of procedure under circumstances requiring 
a change in the original scheme, it would seem that a power so to amend 
your own order is vested in you. 

In order to so amend your ruling you should prepare an amended order 
in the form in which you now desire to have it; you should hold public 
hearings thereon, giving due notice to such railroad corporations, counties, 
cities and towns as may be required by law to bear part of the cost of 
abolition as you were obliged to do upon your original hearing under said 
section 70; and thereafter make an amended order containing all deter- 
minations, including those which you now desire to add by amendment, 
procure the consent of the Department of Public Utilities to such amended 
order, file it in the office of that department and in your own department, 
and serve upon the various offices, corporations and pohtical subdivisions 
as to which filing was required of the original petition under said section 70. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Civil Service — Disabled Veteran — Preference. 

Feb. 5, 1937. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — Replying to your letter of recent date regarding the pro- 
posed promotion of an intermittent school janitor to the position of a 
permanent full-time janitor, in Everett, the Attorney General does not 
pass upon questions of fact; that is the province of the Commissioner. 

Assuming that the facts relative to the present situation are like those 
which existed in connection with an intermittent school janitor whose 
case you laid before me last summer, the law apphcable to such situation 
is as stated in my opinion to you of July 10, 1936. Attorney General's 
Report, 1936, p. 78. 

Accordingly, it would seem that the statement which you advise me 
you have made to the superintendent of schools of Everett, to the effect 
that a disabled veteran upon the eligible list for the position of a perma- 
nent full-time janitor must be appointed and employed in such position 
in preference to a person not a disabled veteran, who might be promoted 
thereto from the place of an -intermittent janitor, is a correct statement 
as to the applicable law. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Legislative Agent — Legislative Counsel. 

Feb. 5, 1937. 
Mr. Charles 0. Holt, Sergeant-at-Arms. 

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

"G. L. (Ter. Ed.) c. 3, § 39, defines 'legislative counsel' and 'legislative 
agent ' as follows : 



60 P.D. 12. 

'"Legislative counsel" any person who for compensation appears at any 
public hearing before any committee of the general court in regard to pro- 
posed legislation, and who does no other acts in regard to the same except 
such things as are necessarily incident to such appearance before such a 
committee ; 

"Legislative agent", any person who for hire or reward does any act to 
promote or oppose legislation except to appear at a public hearing before 
a committee of the general court as legislative counsel.' 

I respectfully request your opinion as to whether under said definitions 
a person who is manager of a public utility corporation, on an annual 
salary, may appear before a committee of the General Court in regard to 
proposed legislation affecting his corporation without registering with the 
Sergeant-at-Arms. The specific case I have in mind is that of a man 
whose duties do not specify or mention the fact that he shall so appear 
at any time, but who considers it part of his powers and duties to act in 
all matters affecting his corporation whenever he deems it advisable. 

Would the president or vice-president of a corporation with similar 
powers and duties be required to register with the Sergeant-at-Arms if he 
should desire to appear before a committee of the General Court as afore- 
said?" 

It is immaterial in what form an individual receives "compensation" 
from his employer for performing the acts described, as appertaining to 
the work of a "legislative counsel," in the above-quoted language of G. L. 
(Ter. Ed.) c. 3, § 39. He may receive it in the form of an annual salary 
applicable to various services or in the shape of a payment for specific 
work before legislative committees alone. In either case, he comes within 
all the provisions of said chapter 3 relative to a legislative counsel. See 
I Op. Atty. Gen. 31; III ihid., 469. 

Upon the facts as you have set them forth, it would appear that the 
manager of a public utility corporation, to whom you refer specifically in 
your communication, should be registered in your dockets like any other 
"legislative counsel," under the provisions of said chapter 3, sections 
39-42. 

Under ordinary circumstances, the officers of corporations mentioned 
in your letter should likewise be so registered. 

Very truly yours, 

Paul A. Dever, Attorney General. 



State Armory — Use hy Organizations. 

Feb. 9, 1937. 

Brig. Gen. Charles H. Cole, The Adjutant General. 

Dear Sir: — I am in receipt from you of a communication "requesting 
an opinion as to whether rifle or pistol teams, composed of members of 
organizations of war veterans, may be allowed the use of the indoor ranges 
in State armories without charge, under the provisions of G. L. (Ter. Ed.) 
c. 33, § 48 (a), as amended." 

There is no specific provision made by the General Laws for the use of 
indoor ranges in State armories by members of organizations of war 
veterans. 

G. L. (Ter. Ed.) c. 33, § 48 (a), as amended, does provide: — 



P.D. 12. . 61 

"Any armory, . . . may be used, . . . without charge ... for drill 
purposes by drill teams, bands or drum corps composed of members of 
organizations of war veterans. ..." 

I am of the opinion that the words "for drillpurposes," as used in the 
context of said section 48 (a), cannot reasonably be construed so as to 
include shooting by rifle or pistol teams at the ranges in State armories. 

While the word "drill" is sometimes used as meaning all parts of the 
training of a soldier, nevertheless it is more commonly employed to denote 
such portion of that training as consists in performing the manual of 
arms, exercising and marching. The employment of the words "drill 
purposes" in said section 48 (a) in connection with the words "drill teams," 
"bands" and "drum corps" appears to me to indicate the intent of the 
Legislature that the words in question as here used should have the more 
restricted meaning. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Old Age Assistance — Municipalities — Reimbursement. 

Feb. 12, 1937. 
Hon. Walter V. McCarthy, Commissioner of Public Welfare. 

Dear Sir : — I understand from your recent communication that dur- 
ing the period from February 1 to August 31, 1936, certain cities and 
towns of the Cortimonwealth were granted sums of money directly by the 
Commonwealth for old age assistance, which money was previously re- 
ceived by the Commonwealth from the Federal government under the 
provisions of the Federal Social Security Act, Title 42, U. S. C. A. I 
understand further that during the same period the cities and towns ex- 
pended moneys from their own treasuries for such old age assistance be- 
yond the sums received from the State in the foregoing manner. 

It appears by the provisions of G. L. (Ter. Ed.) c. 118A, § 3, in the form 
in which it was in effect between February 1 and August 31, 1936, that — 

"In respect to all aged persons in receipt of assistance under this chap- 
ter, the town rendering the assistance shall, after and subject to approval 
of the bills by the department and subject otherwise to the provisions of 
section forty-two of chapter one hundred and twenty-one, be reimbursed 
by the commonwealth for one third of the amount of assistance given, or, if 
the person so aided has no settlement in the commonwealth, for the total 
amount thereof. If the person so aided has a legal settlement in another 
town, two thirds of the amount of such assistance given may be recovered 
in contract against the town liable therefor in accordance with chapter one 
hundred and seventeen." 

I am informed that when the time came for reimbursement of the cities 
and towns they were directed by your department to render a bill to the 
Commonwealth showing an amount equal to one third of the moneys 
actually expended from their local treasuries, not including the sum of 
money paid to them from the Federal grant; and your inquiry, as I gather 
from your communication, is directed to ascertaining whether your pro- 
cedure in this respect was correct. 

I am of the opinion that such procedure is correct. 



62 P.D. 12. 

I understand that the various cities and towns claim that they are en- 
titled to reimbursement from the Commonwealth in an amount equal to 
one third of the total of the amounts paid from their own treasuries plus 
the amount expended by them from the portion of the Federal grant al- 
lotted to them. I think that this position is incorrect, and that the repay- 
ment intended by the Legislature, as expressed in said chapter 118, sec- 
tion 3, — "be reimbursed by the commonwealth for one third of the 
amount of assistance given, or, if the person so aided has no settlement 
in the commonwealth, for the total amount thereof", — refers to a repay- 
ment by the Commonwealth to the cities and towns of the mentioned 
portion of money actually disbursed by them from their own funds, 
irrespective of any Federal money which may have been allotted to 
them. 

For the Commonwealth to allot to a city a given amount of money re- 
ceived from the Federal government and then to be required to repay to 
the town such amount when spent by the town is not reimbursing the 
town, as the word "reimbursed" is used in the statute. The intent of the 
Legislature was that the town should be reimbursed for the amount of its 
own money originally in its treasury, unaugmented by any grant made 
to it. To hold otherwise would be to make such allotments of Federal 
money a permanent acquisition to the town's treasury, since its expendi- 
ture would be continually made good from the Commonwealth's treasury. 
Any such procedure was manifestly not within the intention of the Legis- 
lature in drawing the statute. The statute contemplates the reimburse- 
ment of such of the town's own funds as it has disbursed, and does not 
include the idea of repayment of expenditures made from special grants 
of money flowing from other sources than those of the ordinary revenue 
of the city or town. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Armory — State Department or Division — Compensation for Use. 

Feb. 12, 1937. 
Brig. Gen. Charles H. Cole, The Adjutant General. 

Dear Sir: — I am in receipt from you of a communication "request- 
ing an opinion as to whether a State department, or a division of a State 
department, may be allowed the use of a State armory without charge, 
under the provisions of G. L. (Ter. Ed.) c. 33, § 48 (c)." 

G. L. (Ter. Ed.) c. 33, § 48 (c), to which you refer, specifically provides, 
in its applicable parts : — 

"... armories may be used temporarily for the following public 
purposes : 

A public meeting or hearing held by a state department or commission. 

An examination conducted by the division of civil service. . . . 

Compensation for the use of any armory under this subsection shall be 
fixed by the adjutant general . . . and shall not exceed a sum sufficient 
to cover all expenses of lighting, heating and guarding the armory, and 
similar expenses. Such compensation shall be paid to the adjutant general 
who shall pay the same to the commonwealth." 

It was plainly the intention of the Legislature that the expense of con- 
ducting meetings of other branches of the State service should not be borne 



P.D. 12. 63 

by the branch in which you serve. Although the ultimate cost to the 
Commonwealth is not affected, a system of primary interdepartmental 
financial responsibility for the same has been established by the General 
Court under the said section, which you are not at liberty to disregard. 

Very truly yours, 

Paul A. Dever, Attorney General. 

National Guard — License for Beano Games. 

Feb. 19, 1937. 
Brig. Gen. Charles H. Cole, The Adjutant General. 

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

"Your opinion is requested as to whether a unit of the Massachusetts 
National Guard comes within the provisions of St. 1934, c. 371, provided 
the funds obtained from admission charges revert into the company fund 
of the National Guard unit, said funds being used to promote the educa- 
tional, social and athletic activities of the unit." 

Irrespective of the purposes to which funds received in connection with 
a game of beano, to which I assume your communication relates, are 
devoted, G. L. (Ter. Ed.) c. 271, § 22A, as amended by St. 1936, c. 222, 
provides specifically, with relation to the license necessary to conduct such 
game, that — 

"No hcense under this section shall be granted except to a charitable, 
civic, educational, fraternal or religious organization." 

A unit of the National Guard does not come within the description of 
any of the five classes of organizations which may be so licensed. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Armory — Municipality — Compensation. 

Feb. 19, 1937. 
Brig. Gen. Charles H. Cole, The Adjutant General. 

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

"Your opinion is requested as to whether the town of Adams may be 
allowed the use of the State armory at Adams without charge, under the 
provisions of G. L. (Ter. Ed.) c. 33, § 48 (c), in view of the fact that the 
town of Adams donated the land upon which the armory was built, and 
also donated the sum of $10,000 towards the cost of the construction of 
the armory." 

The provisions of G. L. (Ter. Ed.) c. 33, § 48 (c), are mandatory in 
requiring that — 

"Compensation for the use of any armory under this subsection shall 
be fixed by the adjutant general . . . and shall not exceed a sum suffi- 
cient to cover all expenses of lighting, heating and guarding the armory, 
and similar expenses. Such compensation shall be paid to the adjutant 
general who shall pay the same to the commonwealth." 



64 P.D. 12. 

As I said in my opinion to you of February 12, 1937 {ante, p. 62) : — 

"It was plainly the intention of the Legislature that the expense of 
conducting meetings of other branches of the State service should not be 
borne by the branch in which you serve." 

This statement applies equally to the use of a State armory, under said 
section 48 (c), by a municipality. There is nothing in the said statute 
which shows any legislative intent to give the use of the armories for the 
purposes enumerated under said section 48 (c) to municipalities without 
the receipt of such compensation as is to be exacted from others. It is 
immaterial in this connection that a municipality may have donated land 
or money toward the erection of a State armory. No expressed or implied 
exception to the general rule relative to payment of compensation, laid 
down in said section 48 (c), exists in favor of such a municipality. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Commission — Contract — '^Change Orders^' — Extra 

Work. 

Feb. 24, 1937. 
Metropolitan District Commission. 

Gentlemen : — You have asked my opinion, in effect, as to whether 
or not the chief engineer of your Commission was acting within the scope 
of his authority when he issued "change orders," which I take to be orders 
for extra work, within the meaning of the contract provisions as shown in 
the specimen contract which you forwarded to me, and made a determina- 
tion as to the amount and value of such extra work for the contractor. 

In your contract appears the following paragraph with relation to 
"extra work." This paragraph binds the contractor and is notice to him 
of the scope of the authority of your engineer. Article XVII, on page 31 
of the contract and specifications, reads, in its applicable parts, as fol- 
lows : — 

"The Contractor shall do any work not herein otherwise provided for, 
when and as directed in writing by the Engineer . . . and shall, when 
requested by the Engineer, so to do, furnish itemized statements of the 
cost of the work ordered and give the Engineer access to accounts, bills 
and vouchers relating thereto, . . . The determination of the Engineer 
shall be final upon all questions of the amount and value of extra work, 
but in no greater amount than is approved in writing by the Commission 
and the State Emergency Public Works Commission." 

It is plain that the engineer is given authority to require the contractor 
to do such extra work as he shall determine necessary, and that the deter- 
mination by the engineer as to the "amount and value" of the extra work 
is also within his authority. Such determination, however, is subject to 
approval, in writing, by your Commission and by the State Emergency 
Public Works Commission, jointly, of the maximum "amount." 

I am of the opinion that, as disclosed by the context of said article 
XVII, the words "amount and value," in the last sentence, refer to the 
quantity of the work ordered by the engineer and to the cost thereof. 
These matters are determined by the engineer, as I have said. I am, 
however, of the opinion that the word "amount," in the next to the last 
line of said article, means the amount of money which is to be paid to the 



P.D. 12. 65 

contractor for the extra work done under the contract, and this amount 
cannot be greater than the sum approved jointly by the two Commis- 
sions, as I have said. 

The first question which you ask me categorically reads as follows: — 

"Did the Chief Engineer act within the scope of his authorities in issu- 
ing these change orders?" 

In view of the considerations which I have outlined, I answer this 
question in the affirmative, reminding you that the determination of the 
price to be paid for the extra work is subject to the approval of the two 
Commissions. 

Your second question is as follows : — 

"Has the Emergency Public Works Commission, under its authority, 
the right to require the MetropoHtan District Commission to approve 
these orders if properly issued by the Chief Engineer? " 

I answer this question in the negative. Your Commission is bound by 
the orders of its chief engineer, in so far as he has required the contractor 
to do extra work, but you are not obliged to pay therefor any amount 
greater than is approved jointly by your Commission and the State Emer- 
gency Public Works Commission. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Utilities — Water Companies^ Rates in Hingham and Hull. 

Feb. 25, 1937. 

Hon. A. C. Webber, Chairman, Department of Public Utilities. 

Dear Sir: — You have requested my opinion in the following com- 
munication : — 

"Has the Department of Public Utihties authority and jurisdiction over 
water companies to regulate the rates charged to their customers for the use 
of water in the towns of Hingham and Hull, or is that authority and juris- 
diction still retained by, and exclusive in, the Supreme Judicial Court 
upon petition as provided by G. L. (Ter. Ed.) c. 92, § 16, notwithstanding- 
general jurisdiction of the department over gas, electric and water rates, 
under St. 1927, c. 316, now G. L. (Ter. Ed.) c. 164, § 94, and c. 165, § 2? 

The jurisdiction of this department is challenged in an investigation by 
the department, on its own motion, as to the propriety of water rates 
charged by the Hingham Water Company at Hingham and Hull." 

I am of the opinion that your department has authority and jurisdiction 
to regulate the rates charged by the Hingham Water Company at Hing- 
ham and Hull. 

Irrespective of the right reserved to the water companies of Hingham 
and Hull to have jurisdiction of their rates vested in the Supreme Judicial 
Court, in contradistinction to other water companies, which in this respect 
were under the jurisdiction of your department prior to 1927, which right 
was specifically set forth in the compilation of the laws in 1921 and is 
stated in G. L., c. 92, § 16, said water companies of Hingham and Hull now 
come within your jurisdiction by virtue of St. 1927, c. 316, § 3, which, by 
implication, repealed the provisions of earlier enactments, including said 



66 P.D. 12. 

G. L., c. 92, § 16, so far as they deprived your department of jurisdiction 
over said companies in Hingham and Hull. 

St. 1927, c. 316, was entitled: "An Act further extending public con- 
trol and supervision in respect to rates, charges, forms of contract and 
quality of product of gas, electric and water companies." 

Section 3 reads: "The provisions of this act shall apply to water com- 
panies." 

It is not necessary to trace at length the history of antecedent statutes 
relative to the establishment and regulation of water rates in the metro- 
politan water supply district and in Hingham and Hull. Sts. 1895, c. 488; 
1897, c. 336; 1909, c. 74; 1914, c. 787; Gen. St. 1917, c. 166; St. 1920, 
cc. 295, 583. It need only be said that the special provisions with rela- 
tion to the rights of direct appeal by Hingham and Hull to the Supreme 
Judicial Court in relation to rates which arose under the antecedent stat- 
utes and were incorporated in G. L., c. 94, § 16, are incorrectly set forth 
in the Tercentenary Edition of the General Laws as an enforceable part 
of said section 16 of chapter 94, since such special provisions were repealed 
by implication in the enactment of said St. 1927, c. 316, which gave juris- 
diction in relation to charges and rates of all water companies to your 
department. See Salisbury v. Salisbury Water Supply Co., 279 Mass. 204, 
206, and cases there cited. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Motor Vehicles — Municipal Regulations. 

Feb. 25, 1937. 
Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir: — You have laid before me a copy of an ordinance of the 
city of Newton which, by its terms, purports to restrict "the use and opera- 
tion of heavy commercial vehicles" upon certain designated streets. 

Inasmuch as this ordinance, by its terms, is applicable to all heavy 
commercial vehicles, it cannot be said as a matter of law to constitute 
"special regulations as to the speed of motor vehicles and as to the use of 
such vehicles altogether on certain ways" nor to "prohibit the use of such 
vehicles altogether on certain ways," within the meaning of the quoted 
words as they are employed in G. L. (Ter. Ed.) c. 90, § 18. This being 
so, it does not fall within the requirement of said section 18 that a certifi- 
cate in writing from your department, made after a public hearing, setting 
forth that such regulation "is consistent with the public interests," shall 
be given in order that it may be effective. See IV Op. Atty. Gen. 7. 

Very truly yours, 

Paul A. Dever, Attorney General. 

National Guard — Municipality — Permit for Beano Games. 

March 2, 1937. 
Brig. Gen. Charles H. Cole, The Adjutant General. 

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

"1. The question has been raised by the selectmen of Norwood regard- 
ing the legality of issuing a permit for beano games to G Company 101st 



P.D. 12. 67 

Infantry, in accordance with St. 1934, c. 371, as a civic organization. It 
is requested that an opinion on the matter be obtained from the Attorney 
General. 

2. It is further requested that, inasmuch as neither the unit nor the 
State armory is in any way under the supervision or control of the town 
of Norwood, the question of the legality of a permit issued by the Com- 
mander-in-Chief for such beano games be submitted to the Attorney 
General for an opinion." 

1. The opinion which I rendered you on February 19, 1937 {ante, p. 63), 
answers your first question. In it I stated that "a unit of the National 
Guard does not come within the description of any of the five classes of 
organizations which may be so licensed" to conduct beano games, under 
G. L. (Ter. Ed.) c. 271, § 22A, as amended. A unit of the National Guard 
is not a "civic organization"; it is a military organization. 

2. In answer to your second question, it is enough to call your attention 
to the fact that no authority is vested by the statutes in the Commander- 
in-Chief of the mihtary forces of the Commonwealth to issue permits for 
games of beano. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Civil Service — Examinations — Seniority. 

March 5, 1937. 
Commissioners of Civil Service. 

Gentlemen : — You have recently asked my opinion in the following 
language : — 

"G. L. (Ter. Ed.) c. 31, § 3, gives authority to the Commission to make 
rules, and, under clause (d), provides that said rules shall include pro- 
visions for 

' (d) Promotions, if practicable, on the basis of ascertained merit in the 
examination and seniority of service.' 

Civil Service Rule 28 on promotion provides in section 1: 

'In the official service, a promotion from one grade, as fixed by the 
rules or determined by the Commissioner, to another grade in the same 
class shall not be vahd until the candidate or candidates for promotion 
shall have been subjected to a competitive or noncompetitive examina- 
tion, as the Commissioner may decide, except as otherwise provided by 
statute.' G. L. (Ter. Ed.) c. 31, § 20. 

In view of the above, will you please give the Commission your official 
opinion on these questions: 

(1) In the drawtender service of Boston, can the Commission insist 
that promotion be made on the basis of seniority in service, and allow the 
promotion of the senior man without examination? 

(2) Can the Commission insist that the senior man be promoted after 
noncompetitive examination?" 

The provision of your Rule 28 above quoted, which you have authority 
to make under G. L. (Ter. Ed.) c. 31, § 3, requires that there shall be a 
competitive or a noncompetitive examination before a promotion. Your 
rule does not itself touch upon the matter of seniority, but it was the 
obvious intention of the Legislature, in enacting G. L. (Ter. Ed.) c. 31, § 3, 



68 P.D. 12. 

that seniority was to be considered, as well as the result of an examination, 
in determining upon the availability of an employee for promotion. See 
McDowell V. Hurley, 291 Mass. 258. 

Accordingly, I answer your first question in the negative and your 
second question in the affirmative, assuming that the senior man men- 
tioned in said second question has passed his examination. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Shellfish — Certificate — Contamination. 

March 10, 1937. 

Hon. Ernest J. Dean, Commissioner of Conservation. 

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

"Is it necessary for a person who transports or causes to be transported 
into this Commonwealth for consumption as food, scallops taken or dug 
from grounds outside the Commonwealth, or sells, causes to be sold, or 
keeps, offers or exposes for sale for consumption as aforesaid, any scallops 
so taken or dug, to have on file in the department of public health a certifi- 
cate, approved by said department, in which such department of public 
health or a board or officer having like powers of the state, country or 
province where such grounds are located, stating that such grounds are 
free from contamination, and also a certificate, approved as aforesaid, in 
which such state board or department of health or other board or officer 
having like powers states that the establishment and equipment of the 
person shipping said scallops into this Commonwealth are in good, sani- 
tary condition?" 

I answer your question in the affirmative. G. L. (Ter. Ed.) c. 130, § 73, 
as enacted by St. 1933, c. 329, § 2, forbade the taking of shellfish without 
a bed certificate stating that the waters and flats from which they were 
taken within this Commonwealth were free from contamination. Section 
74 of said chapter 130, as enacted by said St. 1933, c. 329, § 2, forbade the 
transportation into the Commonwealth and the sale therein of any shell- 
fish taken or dug on grounds outside the Commonwealth unless there is 
on file with the Department of Public Health a certificate from the state 
wherein they were taken or dug, stating that the grounds from which they 
were taken in said state were uncontaminated. 

By St. 1935, c. 117, said section 73 was amended by excepting scallops 
from its provisions. No amendment has been made by the Legislature 
of the provisions of said section 74 since their enactment in their present 
form in 1933. Therefore, the provisions of section 74 apply to scallops as 
well as other shellfish coming into Massachusetts from waters or grounds 
outside the Commonwealth, for the Legislature has not seen fit by specific 
change of the wording of said section 74, or by implication, to amend or 
alter its terms ("any shellfish"). No implication of amendment or 
change in the provisions of said section 74 can be derived from the specific 
alteration of the provisions of said section 73. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 69 

Civil Service — Fall River Employees. 

March 16, 1937. 

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

Dear Sir: — You have asked my opinion in the following communi- 
cation : — 

"I hereby request your opinion as to whether or not the position of 
industrial agent in the Fall River board of finance is classified under civil 
service. This Commission has ruled that this position is classified under 
Civil Service Rule 4, section 1, class 8, reading as follows: — 

'Class 8. Claim agents, purchasing agents, and other agents whose 
duties may be in part clerical.' 

The Fall River board of finance has called my attention to St. 1931, 
c. 44, § 16, contending that this section of the law exempts the employees 
of their board from civil service. St. 1931, c. 44, § 16, reads, in part, as 
follows : — 

'The operation of such part of any statute as is inconsistent with the 
provisions of this act, in so far and to the extent that it applies to the city 
of Fall River or to any of its interests or affairs, shall be suspended so long 
as the powers and duties of the board continue to be in effect hereunder. 
Every reference in this act to any statute shall be construed to include 
all amendments thereto in force at the time of the passage hereof.'" 

By St. 1931, c. 44, § 7, the Fall River board of finance was given au- 
thority to employ "such experts, counsel and other assistants, and incur 
such other expenses as it may deem necessary." 

There would not appear to be anything in said chapter 44, section 7, 
concerning the employment of such persons as are mentioned therein, 
inconsistent with the provisions of the Civil Service Law. The provisions 
of section 9 of said chapter 44, with relation to the appointment of certain 
officials to designated offices, are so worded that they would be incon- 
sistent with the provisions of the Civil Service Law, and, accordingly, by 
reason of section 16 of said chapter 44, which is set forth in your com- 
munication, the Civil Service Law could not be applied to such officials. 

But with relation to those persons who are employed by virtue of the 
power given by said section 7, the terms of the Civil Service Law, as em- 
bodied in G. L. (Ter. Ed.) c. 31, as amended, are not inconsistent with the 
provisions of said section 7 regarding the employment of such persons, of 
whom I assume the "industrial agent," who is the subject of your letter, 
is one. 

I am informed that in two prior instances employees of the Fall River 
board of finance have been dealt with under the civil service laws and rules 
and regulations, and I am of the opinion that such practice is correct and 
should be applied with relation to the instant case. 

Very truly yours, 

Paul A. Dever, Attorney General. 



70 P.D. 12. 

Civil Service — State Board of Housing — Emjyloyees. 

March 16, 1937. 

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

Dear Sir: — You have advised me a.s follows: — 

"I have ruled that the following positions under the State Board of 
Housing are classified under civil service: — 

Research-stenographer. 

Investigator. 

Executive secretary. 

Bookkeeper. 

Cataloguer-stenographer. 

Architectural adviser. 
Mr. John Carroll, Chairman of the State Housing Commission, informed 
me, in a letter of February 15th, that he has taken this matter up with 
your office and that he has been given an unofficial opinion that the em- 
ployees of the State Board of Housing do not come under civil service law 
and rules. He makes reference to St. 1935, c. 449, § lA, amending G. L. 
(Ter. Ed.) c. 18, § 18. I do not find anything in this section of the law 
exempting the employees of this Board from civil service. . . . 

Civil Service Rule 4, section 1, provides for the placing of the positions 
named above under civil service." 

If the positions to which you refer were offices, the persons appointed to 
them by the State Board of Housing would be "officers" and would not 
be subject to the civil service rules and regulations, since their appoint- 
ments would be subject to the approval of the Governor and Council 
(G. L. [Ter. Ed.] c. 18, as amended), and that being so, they would be 
exempt from the scope of the civil service rules and regulations bv virtue 
of G. L. (Ter. Ed.) c. 31, § 5. 

However, it is plain that the holders of the positions which you enumer- 
ate will not be "officers" but employees of the Commonwealth, and as 
such they are not exempt from the provisions of the civil service laws and 
rules and regulations, even if their appointment is subject to the approval 
of the Governor and Council. See Attorney General's Report, 1932, p. 44. 

Very truly yours, 

Paul A. De ver, A ttorney General. 

Boston Elevated Railway Company — A ssessment upon the City of Revere — 

Operating Deficiency. 

March 18, 1937. 

Hon. William E. Hurley, Treasurer and Receiver General. 

Dear Sir: — You have asked my opinion, in effect, as to whether you 
should assess upon the city of Revere any sum on account of the default 
of the Boston Elevated Railway Company on the subway rental pro- 
vided for by St. 1930, c. 394. You advise me that heretofore Revere has 
not been assessed either for operating deficiency or for rental default of 
the company, because the railway did not operate in Revere prior to 1937. 

St. 1932, c. 299, provided for the acquisition by the Boston Elevated 



P.D. 12. 71 

Railway Company of the jii-oporty of the Eastern Massachusetts Street 
Railway Company in Revere and other places, and it was set forth in 
section 4 thereof as follows: — 

"If any sale and purchase authorized by sections two and three is 
effectuated, the property so acquired shall be operated by the Boston 
Elevated Railway Company, hereinafter called the companj^, as a part 
of its entire system in the same manner as to fares and in all other respects 
as though it had been incorporated therein prior to July first, nineteen 
hundred and eighteen, and in respect thereof the company shall have all 
the powers and privileges and be subject to all the duties, liabihties, re- 
strictions and provisions set forth in general and special laws now or here- 
after in force and applicable to it except as in this act otherwise expressly 
provided." 

Spec. St. 1918, c. 159, which provided for the public operation of the 
Boston Elevated Railway Company, contained sections relative to the 
making up of deficiencies in maintenance and operation of the railway by 
the Commonwealth (§§ 9 and 11), and for reimbursement of the Common- 
wealth for the same by the cities and towns ''in which the company 
operates" (§ 14). 

Said section 14 reads as follows : — 

"In case the commonwealth shall be called upon to pay to the trustees 
or the company any amount under the provisions of sections eleven and 
thirteen, such amount with interest or other charges incurred in borrow- 
ing money for the purpose shall be assessed upon the cities and towns in 
which the company operates by an addition to the state tax next there- 
after assessed in proportion to the number of persons in said cities and 
towns using the service of the company at the time of said payment, said 
proportion to be determined and reported to the treasurer and receiver 
general by the trustees from computations made in their discretion for 
the purpose." 

St. 1930, c. 394, § 1, amending St. 1925, c. 341, provided for the reim- 
bursement to the Commonwealth of amounts paid by the Commonwealth 
to take care of deficiencies in payments for rental of the Boston subway by 
the Boston Elevated Railway Company from certain cities and towns. 

The applicable part of section 1 reads as follows : — 

". . . In case the commonwealth shall be called upon to make any 
payments hereunder, the amount thereof, with interest or other charges 
incurred in borrowing money for the purpose, shall be assessed upon the 
cities and towns which paid assessments under the last preceding assess- 
ment under section fourteen of said chapter one hundred and fifty-nine 
in proportion to the amounts paid, and shall be assessed and collected in 
the manner provided in said section fourteen." 

Subsequent amendments by St. 1935, cc. 99 and 100, have not affected 
the above provisions as to assessments upon cities and towns. 

It is apparent from the above-quoted terms of said chapter 394 that 
only cities and towns "which paid assessments under the last preceding 
assessment under section fourteen of said chapter one hundred and fifty- 
nine" are to be assessed for rental deficiencies. 

Since Revere, by reason of the nonoperation therein of cars by the 
Boston Elevated Railway Company, did not pay any assessment for 



72 P.D. 12. 

operating deficiency under the last preceding assessment under said sec- 
tion 14, it is not presently liable to be assessed for the proposed rental 
deficiency in 1937. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — State Prison Colony — Employees — Transfers. 

March 18, 1937. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion relative to the duty of your 
Commission under G. L. (Ter. Ed.) c. 127, § 11, with relation to the trans- 
fer of a prison officer. 

G. L. (Ter. Ed.) c. 127, § 11, reads as follows: — 

"An officer in a jail or house of correction may be transferred to the 
state prison, the Massachusetts reformatory, or the prison camp and hos- 
pital as a correction officer; and if the place in which he is employed is 
not in the classified civil service list, he shall be given a non-competitive 
examination as to his fitness, upon receipt from the warden of the state 
prison, the superintendent of the Massachusetts reformatory or the super- 
intendent of the prison camp and hospital of a statement that the appoint- 
ment of such officer is desired, and that he possesses particular qualifications 
for the work required of him." 

The State Prison Colony was not created until after the enactment of 
said chapter 127, section 11, in the latter 's present form, and hence is not 
referred to therein; nor is its superintendent named in the section with 
the officers in charge of the other penal institutions. The provisions of 
said section 11 apply to all the institutions under the control of the De- 
partment of Correction existing at the time when said section 11 was 
amended into its present form, except the State Farm and the Reforma- 
tory for Women. 

Although the original statute creating the State Prison Colony (St. 
1927, c. 289, § 1), now embodied in G. L. (Ter. Ed.) c. 125, § 41E, pro- 
vides that "all provisions of law applying generally to the institutions 
under the control of the department of correction shall apply to the state 
prison colony," it cannot make applicable to the State Prison Colony nor 
to its superintendent the powers, with relation to requiring transfers of 
prison officers, vested in the heads of some of the other penal institutions, 
because the provisions of law vesting such powers do not "apply gener- 
ally to the institutions under the control of the department" but apply 
to only three of the five others. 

Again, it must be taken to have been the intent of the Legislature 
that the provisions of said section 11 should not be treated as embracing 
the State Prison Colony, for no amendment to said section has been 
passed since the creation of the colony to bring it specifically within the 
terms of said section 11; whereas section 12 of the same chapter, dealing 
with the removal of incompetent penal officers, was amended by the Legis- 
lature in 1929 so as specifically to include those of the State Prison Colony. 
St. 1929, c. 170, § 2. 

It follows, therefore, that the superintendent of the State Prison Colony 
has not the authority to cause a transfer of an officer to the colony under 



P.D. \2. 73 

said chapter 127, section 11, nor arc the Commissioners of Civil Service 
required to give an examination to effect such purpose at his request. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Salary Ranges — Division of Personnel. 

March 22, 1937. 
His Excellency the Governor, and the Honorable Council. 

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

"At a meeting of the Governor and Council held Tuesday, March 16, 
1937, consideration was given to certain communications from Charles P. 
Howard, Chairman of the Commission on Administration and Finance, 
under dates of March 9th and 10th, copies of which are attached hereto. 
Chairman Howard . . . and Henry F. Long, Commissioner of the De- 
partment of Corporations and Taxation, were heard with relation to the 
subject matter of said communications, following which the Council 
adopted the following votes : — 

(1) Moved: That the Commission on Administration and Finance be 
notified that the salary ranges of the positions of assistant director of cor- 
porations, assistant director of inheritance taxes, income tax assessor and 
deputy income tax assessor are, as set forth in the opinion of the Attorney 
General dated February 3, 1937 (ante, p. 53), the ranges estabhshed by 
the Division of Personnel and Standardization. 

(2) Moved: That, as recommended by the Chairman of the Commis- 
sion on Administration and Finance, the salary range for the position of 
deputy commissioner of corporations shall be from $5,100 to S6,000, and 
that the salary range for the position of second deputy commissioner of 
corporations shall be from $4,200 to $5,100. 

(3) Moved: To notify the Commissioner of Corporations and Taxation, 
the Commissioner of Insurance, and the Commission on Administration 
and Finance that the salaries of such appointees who are still in the service, 
whose names appear on a list which was prepared by the Division of Per- 
sonnel and Standardization and which was submitted to the Governor 
and Council by the Chairman of the Commission on Administration and 
Finance on March 10, 1937, are, in accordance with the opinion of the 
Attorney General dated February 3, 1937, the salaries established for such 
positions by the Division of Personnel and Standardization. 

The Governor and Council, being in doubt as to the scope of their 
authority under the Constitution and laws to so act, it was voted that the 
opinion of the Attorney General be requested as to the validity of any and 
all of the motions, three in number, above set forth. 

Yours respectfully, 
(Signed) William L. Reed, 

Executive Secretary." 

1. The Division of Personnel and Standardization had made rules and 
regulations for the application and administration of the classifications 
and specifications established by them under G. L. (Ter. Ed.) c. 30, 
§§ 40-46. The salaries of all officers and employees whose positions were 



74 P.D. 12. 

in such classifications and specifications, with certain exceptions, were 
required by said section 46 to be fixed in accordance with such classifica- 
tions and specifications. Ranges of maximum and minimum salaries were 
established prior to December 30, 1936, for such positions, and increases 
in such salaries were required by law to be within such ranges (section 47). 
These rules and regulations had been properly approved, as set forth in 
my opinion of February 3, 1937 (ante, p. 53), the salaries of the officers 
mentioned in the first vote set forth in your letter were to be fixed in ac- 
cordance with the rules and regulations embracing salary ranges set up 
by the Division of Personnel and Standardization, and the salaries or 
salary ranges for such positions created by the then Governor were with- 
out force or effect. 

Inasmuch as such salary ranges for such positions are established by 
the Division under G. L. (Ter. Ed.) c. 30, §§ 45 and 46, and have been so 
estabhshed for a period antedating December 30, 1936, they are as a matter 
of law effective, and have been effective, and no notification of their exist- 
ence is required to be made by the Governor and Council. Such salary 
ranges exist, and have continuously e.xisted since their original approval, 
by force of the provisions of said G. L. (Ter. Ed.) c. 30, §§ 45, 46 and 47. 
Nothing can be added to their effectiveness by a vote of the Governor and 
Council, and the proposed vote would appear to be without effect in itself 
and without authorization in the statute. 

2. As to the second proposed vote, relative to the establishment of 
salary ranges for the positions of deputy commissioner and second deputy 
commissioner of corporations, I am of the opinion that it is not within the 
authority of the Governor and Council. 

The two named positions belong to that class which was expressly 
excepted from the provisions of G. L. (Ter. Ed.) c. 30, §§ 45 and 46, and 
such positions are thus withdrawn from the power of the Division of 
Personnel and Standardization to make rules and regulations which might 
estabhsh salary ranges, because the salaries of the incumbents of these 
two positions "are required by law to be fixed by the Governor and 
Council." 

While the Division of Personnel has authority to establish salary ranges 
for those offices and positions which come within the purview of their 
authority by virtue of classification and rules and regulations under said 
sections 45 and 46, which impliedly empower the division to create such 
ranges, yet the Legislature has given no power to the Governor and 
Council to establish salary ranges for those officers whose salaries are not 
controlled by the rules and regulations of the division but are specifically 
required to be approved by the Governor and Council. Within this class 
fall the deputy commissioner and second deputy commissioner of corpo- 
rations. 

The Legislature has provided, by G. L. (Ter. Ed.) c. 14, § 4, that — 

"The commissioner may, with the advice and consent of the governor 
and council, appoint and remove the following officers ... A deputy 
commissioner and a second deputy, each at such salary as may be fixed 
by the commissioner, with the approval of the governor and council ; . . ." 

Power to fix a salary and power to approve it do not authorize the 
creation of salary ranges. The Governor and Council are not warranted 
in depriving themselves of power to approve any salary for such positions 
which may be brought before them in the future, nor have they authority 
to bind succeeding Governors and Councils. 



P.D. 12. 75 

However important salary ranges may be in connection with the serv- 
ice of the Commonwealth, as is suggested in a letter which you have laid 
before me, addressed to you by the Chairman of the Commission on Ad- 
ministration and Finance, such salary ranges cannot be established except 
where they are authorized by law; and the Legislature has manifested a 
plain intent that salaries and not salary ranges shall be fixed by the Com- 
missioner of Corporations and Taxation for his two deputies, and that 
such specific salaries so fixed by the Commissioner, and they only, shall 
be the subject of approval by the Governor and Council. 

To attempt to go farther and estabhsh, either by the Commissioner or 
by the Governor and Council, a range of salaries relative to these two 
deputies is to attempt to do something which is entirely without authori- 
zation in law. 

3. In view of what I have already said, the third proposed vote is one 
having in itself no effect as a matter of law; and, since it deals with mat- 
ters outside the scope of the authority of the Governor and Council, it 
cannot well be said that the Governor and Council have power to pass 
such a vote. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor — Special Commission — Member ship. 

March 22, 1937. 
His Excellency Charles F. Hurley, Governor of the Commonwealth. 

Sir : — Your Excellency has asked my opinion upon the following ques- 
tion with relation to the Special Commission to co-operate with the tJnited 
States Constitution Sesquicentennial Commission, under the provisions of 
chapter 73 of the Resolves of 1936: — 

"What is the present status of the persons constituting the Special 
Commission in this State under said resolve, and what additional steps 
should be taken to bring this resolve up to date in the present Legislature?" 

The intent of the Legislature, as expressed by the context of this re- 
solve, is that at any given time the then Governor, the Lieutenant Gov- 
ernor, the President of the Senate and the Speaker of the House shall be 
members of the Commission. This forms the first group, and fills itself 
automatically as any of the foregoing positions become vacant and are 
filled in accordance with other provisions of law, so that these four mem- 
bers are now: Charles F. Hurley, Francis E. Kelly, Samuel H. Wragg 
and Horace T. Cahill. 

The second group is to consist of one member of the Senate, to be 
designated by the President thereof. The senator originally designated 
by the President of the Senate is a member of the Commission, by virtue 
of such appointment, as long as he holds a seat in the Senate. As long 
as he holds such a seat his position on this Commission does not become 
vacant because of a change in the President of the Senate. When he 
ceases to hold a seat in the Senate his position becomes vacant, and an- 
other member of the Senate should be appointed by the President thereof. 

You advise me that Senator Moyse was appointed to this Commission 
in 1936 by the then President of the Senate. That being so, he continues 
as a member of the Commission and does not require to be reappointed 
by the present President of the Senate. 



76 P.D. 12. 

The same principle applies to the members of the House of Represent- 
atives designated by the Speaker to serve on this Commission. You 
advise me that in 1936 Horace T. Cahill was appointed one of these mem- 
bers by the then Speaker of the House. Inasmuch as said Horace T. 
Cahill has now become himself Speaker of the House and a member of 
this Commission ex officio, the position which he occupied as a member 
of the House of Representatives designate becomes vacant and it should 
be filled by the present Speaker of the House. 

Of the other members designate of the House, namely, Messrs. Nelson, 
Sirois, Kelly and Dillon, who, you advise me, were appointed in 1936 by 
the then Speaker of the House, each of these retains his position as a mem- 
ber of this Special Commission if he is still a member of the House of 
Representatives. If in the interim he has ceased to be a representative, 
his position becomes vacant and a new appointment to fill it should be 
made by the Speaker of the House of Representatives. 

As to the members of the third class forming this Commission, namely, 
^' three persons to be appointed by the Governor, with the advice and 
consent of the Council," you advise me that Messrs. Barry, Myrick and 
Ehrlich were appointed to such positions in 1936 by the then Governor. 
I am of the opinion that their positions as members of the Commission 
do not become vacant upon the expiration of the term of the Governor 
who appointed them, and that, accordingly, they are now, all three, mem- 
bers of the Commission unless any of them has vacated such position by 
death or by failure to qualify within the time specified by law after the 
original appointment, or by any other cause which works a vacancy in a 
public office. As to such memberships in this group which may have be- 
come vacant, new appointments should be made by the present Governor. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Sales Representation — Fish. 

March 22, 1937. 
Hon. Ernest J. Dean, Commissioner of Conservation. 
Dear Sir : — You have asked me this question : — 

"In your opinion, would a dealer ... be violating" (G. L. [Ter. Ed.] 
c. 94, § 78) "if he caused to be printed on cartons containing frozen fish, 
the following words 'Ocean-fresh' ". 

Such representation as to the character of frozen fish, expressed by 
means of the words "Ocean-fresh" printed on the cartons containing such 
frozen fish, is plainly a violation of the provisions of the law as set forth 
in said section 78. 

The statement "Ocean-fresh" on the carton would, obviously, appear 
to be a representation for the purpose of sale of the fish contained therein. 
It represents such fish as being fresh. "Ocean-fresh" certainly means 
fresh, with perhaps an added implication that they are even fresher than 
others, but, at all events, it plainly means that the fish are fresh, when, as 
a matter of fact, as you advise me, such fish are frozen. Violation of the 
law in this matter seems obvious. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 77 

Public Health — Sewer — Water Supphj — Pollution. 

March 31, 1937. 

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

Dear Sir : — You have asked my opinion with relation to a proposed 
sewer in the town of Holden, from its high school, which you advise me 
is necessary to protect a source of water supply of the Metropolitan Dis- 
trict now being polluted by reason of sewage from such high school being 
allowed to flow so as to pollute such source. 

You advise me that the existing condition is in violation of the rules 
and regulations adopted by your department in accordance with G. L. 
(Ter. Ed.) c. 92, § 17, for the sanitary protection of the waters of said 
district. 

Your first two questions are as follows: — 

"Does section 27 of the said chapter 488 obligate the Metropolitan Dis- 
trict Commission to pay for sewers from the high school in the town of 
Holden to connect with the trunk sewer constructed by the Metropolitan 
District Water Supply Commission under the provisions of St. 1932, 
c. 262, if the town sewers are located in public highways? 

Would such a sewer constructed by the town as herein indicated be 
considered 'public works,' within the meaning of St. 1895, c. 488, § 27, 
and would the Metropolitan District Commission be obligated to pay for 
the expense of maintenance of such sewers to be constructed in the town 
of Holden?" 

G. L. (Ter. Ed.) c. 92, § 20 (formerly St. 1895, c. 488, § 27), reads as 
follows : — 

"The commission, and its employees designated for the purpose, shall 
enforce sections ten to nineteen, inclusive, and the rules, regulations and 
orders made thereunder, and may enter into any building, and upon any 
land for the purpose of ascertaining whether sources of pollution there 
exist, and whether said sections and the rules, regulations and orders 
made as aforesaid are complied with; and, where the enforcement of any 
such laws, rules, regulations or orders will require public works for the 
removal or purification of sewage, the commission shall not enforce the 
same until it has provided such works, and the amount paid therefor 
shall be considered as part of the expenses of construction of the metro- 
politan water works, and such works shall be maintained and operated as 
a part of said water works." 

Said section 20, by its terms, prohibits the enforcement of the rules 
made by your Commission, which require public works for the removal 
or purification of sewage, until such public works have been supplied by 
the Metropolitan District Commission. 

I am advised that, under the pro^^sions of St. 1932, c. 262, the said 
Commission has constructed in the town of Holden the Rutland-Holden 
sewer, so called. One of the purposes of said chapter 262 is stated therein 
to be that such a main sewer or branch might be built to receive "the 
sewage from any sewerage system that may hereafter be constructed by 
the towns of Rutland and/or Holden." 

It was not the intent of the Legislature in enacting said chapter 262 
that the Commission should construct local sewerage systems in Holden 



78 P.D. 12. 

and Rutland, or single lines such as the proposed one to the high school, 
but an alleged main sewage line, with branches necessary to such a main 
line, for the purpose of receiving the sewage from Holden and Rutland. 
Such a sewer line was not to be a system for collecting the sewage of the 
town in its various parts but a main line with essential branches to receive 
and remove the town's sewage. 

The construction of the Rutland-Holden sewage line by the Commis- 
sion sufficiently supplies the "public works for the removal ... of 
sewage," mentioned in said G. L. (Ter. Ed.) c. 92, § 20, and permits of 
the enforcement of those rules made by your Commission heretofore 
referred to, which appear to require the building by the town of the sewage 
line from the high school. 

It cannot well be said that the line from the high school to the Rutland- 
Holden sewer is in the nature of "public works for the removal ... of 
sewage," as those words are used in said section 20. It is, rather, a fine 
for the purpose of "collecting" sewage which is removed by the Commis- 
sion's sewer. 

I am advised that the Commission will provide the necessary entrance 
for such line into its Rutland-Holden sewer so that the removal of this 
sewage from the high school may be effected. 

The Attorney General does not pass upon questions of fact, and this 
opinion is based upon the assumption that the foregoing facts of which 
he has been advised have been correctly stated to him. It follows from 
the foregoing considerations that the expense of paying for the proposed 
sewage line from the high school to the Rutland-Holden sewer Une should 
be borne by the town of Holden, and, accordingly, I answer your first 
two questions in the negative. This being so, your third question requires 
no answer. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Labor and Industries — Penal Institutions — Industrial Building. 

March 31, 1937. 
Hon. Arthur T. Lyman, Commissioner of Correction. 
Dear Sir: — You ask my opinion as follows: — 

"Will you kindly render me an opinion as to whether or not this stat- 
ute" (G. L. [Ter. Ed.] c. 149, § 126) "applies to industrial buildings located 
within our several penal institutions." 

I answer your question in the negative. 

If the buildings to which you refer are in fact buildings of the Common- 
wealth or form a part of any of the penal institutions, the provisions of 
said section were not intended by the Legislature to be applicable to them, 
inasmuch as said chapter 149 was intended to relate to labor and industry 
in its normal form and not as carried on in connection with prisoners in 
penal institutions. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 79 

Governor and Council — Contract for Construction — Federal Funds. 

April 7, 1937. 
His Excellency the Governor, and the Honorable Council. 

Gentlemen: — I have your communication relative to the payment of 
thirty thousand dollars, in accordance with a vote of February 2, 1937, 
of the Department of Public Works, to Coleman Bros. Corp., under its 
contract No. 2966 with the Commonwealth for the construction of a high- 
way grade separation in the city of Boston and the town of Brookhne, 
known as the Jamaicaway Overpass, and requesting my opinion upon 
the following questions : — 

"1. Was authority given to erect the overpass in question by St. 1934, 
c. 380, as amended by St. 1935, c. 368, § 3? 

2. Did the Federal government enter into any agreement with the 
Commonwealth of Massachusetts whereby the Federal government would 
finance the entire cost of the so-called Jamaicaway Overpass, and if so, 
under what date? 

3. If the Federal government did agree to finance the entire cost of 
building and constructing the Jamaicaway Overpass, was it necessary to 
have their approval as to the cost of said building and constructing before 
a contract was let to the Coleman Bros. Corp., or any other successful 
bidder? 

■4. Would any changes or amendments in said contract between Cole- 
man Bros. Corp. and the Commonwealth require the approval of the 
Federal government as a condition precedent to obligating the Federal 
government in expending additional moneys for financing said amend- 
ment or change in contract? 

5. Did the Federal government approve the amendment or change in 
the contract between Coleman Bros. Corp. and the Commonwealth for 
so-called 'extra work,' wherein there was additional expenditure of 
approximately $65,292.50? 

6. In the event that the Federal government did not approve the afore- 
said amendment or change, has the Department of Public Works, by 
reason of this amendment, violated St. 1934, c. 380, as amended by St. 
1935, c. 368, § 3, in so far as the entire cost to be borne by the Federal 
government is concerned? 

7. Is the Federal government hable for the payment of this additional 
cost, namely, approximately $65,000, for said changes or 'extra work'?" 

1. The construction of the overpass by the Department of Public Works, 
hereinafter called the department, was expressly authorized by St. 1934, 
c. 380, at a total cost not to exceed three hundred and twenty-five thou- 
sand dollars. This statute, however, was amended in the following year 
(St. 1935, c. 368) by striking out the above provision limiting the cost, 
and the original statute has since continued in effect as thus amended. 
The department was empowered to "make a contract or contracts for 
said work herein authorized if the federal authorities give proper assur- 
ance that the federal government will furnish the funds necessary to meet 
the cost of the construction involved in the work, notwithstanding the 
provisions of section twenty-seven of chapter twenty-nine of the General 
Laws." 

The receipt of such assurance was a condition precedent to the award 
of any contract for construction and to the actual commencement of the 



80 P.D. 12. 

work. The department submitted to the Secretary of Agriculture a state- 
ment of various projects, including the construction of this overpass, 
which statement was approved by the Secretary and thereafter was recom- 
mended for approval by the United States District Engineer, and was 
approved on August 29, 1935, by the Federal Bureau of Public Roads. 
The department then advertised for bids and the contract was awarded 
to the lowest bidder, Coleman Bros. Corp., which executed a contract 
with the Commonwealth on September 24, 1935, after the award to this 
corporation had been approved by the Federal Bureau of Public Roads. 

It is plain that the department was acting within the authority conferred 
by St. 1934, c. 380, as amended, in entering into the aforesaid contract for 
the construction of the overpass. 

2. The power to grant Federal funds for the work in question was 
authorized by the Hayden-Cartwright Act, approved July 11, 1936 (39 
Stat. 355), and as finally amended on June 18, 1934 (48 Stat. 993). This 
last-mentioned amendment incorporated therein section 204 of the Na- 
tional Industrial Recovery Act, approved June 16, 1933 (48 Stat. 195), 
providing for such payment to the highway department of the State. 
Acting in pursuance of these acts of Congress, a written project agree- 
ment, dated February 4, 1936, but actually executed on February 27, 
1936, was made between the said department and the Secretary of Agri- 
culture. This agreement did not require the Federal government to pay 
any fixed percentage of the cost of the overpass, but it did provide : — 

"The United States pro rata share of the value of the labor and mate- 
rials which shall be actually put into the construction of Section E of 
said project shall not in any event exceed the sum of Three hundred 
ninety thousand, three hundred eighty and 10/100 dollars ($390,380.10), 
certified to the Secretary of the Treasury as above mentioned, which does 
not exceed the authorized Federal pro rata share of Three hundred ninety 
thousand, three hundred eighty and 10/100 dollars ($390,380.10), the ap- 
proved total estimated cost of Section E of said project." 

The Federal government did not enter into any agreement to finance 
the entire cost, but it agreed to pay a sum not in excess of the last-men- 
tioned amount for labor and materials expended in the performance of 
the contract. 

3. As stated above, the Federal government did not agree to pay the 
total cost of the work. The awarding of this contract was approved be- 
fore the contract itself was executed on September 24, 1935, between the 
department and Coleman Bros. Corp. The only written agreement be- 
tween the Federal government and the department is the one above 
mentioned. 

4. The written contract of February 27, 1936, is silent as to the making 
of amendments. Consequently, as matter of law and, I am informed, as 
a matter of practice, the written approval of the appropriate Federal 
official has always been secured if the payment for the additional expenses 
incurred by the allowance of the amendment was to be made in whole or 
in part by Federal funds. In fact, ten orders in the nature of amendments 
and totaling $10,487.56 have been so approved. Unless so approved, no 
payment will be made by the Federal government. Your fourth ques- 
tion, therefore, requires an answer in the affirmative. 

5. The resident Federal engineer approved the amendment referred to 
in your fifth question, but with the distinct understanding that said ap- 



P.D. 12. 81 

proval would not in any way bind tho Federal government, to pay the 
additional cost thereby incurred. This limited approval is subject to 
review, but as yet no appeal has been taken therefrom, and, as long as it 
stands, the further expenditure of Federal funds in payment of the cost 
incurred by this amendment cannot be made. 

6. The department has not violated the terms of St. 1934, c. 380, as 
amended, in making payments to the contractor. The mere fact that 
such departmental conduct was not contrary to the provisions of the 
statute authorizing the construction of the work is not material or de- 
cisive, as there are other considerations to which attention must be given 
in determining the legality of the action of the department in making 
payments to the contractor under its aforesaid contract. 

At the commencement of the projects program it was necessary to have 
available funds for the purpose of starting the actual work under the 
various contracts and permitting the work thereunder to be continued until 
Federal funds were supplied from which the contractors could be paid and 
the Commonwealth reimbursed for the advances made. This was accom- 
plished by the maintenance of a construction fund, amounting to five 
hundred thousand dollars, which was replenished from time to time by 
the highway trust fund, which was composed of allotments made by 
Federal grants. The use of this revolving fund of five hundred thousand 
dollars, which in the beginning consisted entirely of State funds and was 
used in making the initial payments to various contractors, including the 
one in question, was not contrary to the provisions of St. 1934, c. 380, 
under which the work was begun, provided that no more money was paid 
to the contractor than he was entitled to receive under the terms of his 
contract. If that limit were not exceeded, there would always be funds 
sufficient to repay the Commonwealth for the amounts advanced to the 
contractor and to pay the contractor in full, and the balance of the Fed- 
eral funds remaining after the reimbursement of the Commonwealth ought 
to be the exact amount which the contractor by his contract was entitled 
to receive. Probably no complaint could be made of this method of opera- 
tion so long as the advancement of State funde to the contractor was kept 
within the prescribed limit. 

The company, however, was bound by the terms of its contract, and 
its total compensation could not exceed the amount forwarded by the 
Federal government for the performance of its work. The exclusive source 
of payment of this contract was Federal funds, and the contractor could 
not look to the Commonwealth for payment. It has been frequently held 
by our courts that a provision of a contract by which one obligates him- 
self to look to a special source or fund for his compensation is valid, and 
it has been consistently upheld. Hussey v. Arnold, 185 Mass. 202; McCar- 
thy V. Parker, 243 Mass. 465; Baker v. James, 280 Mass. 43. 

The company is not, therefore, entitled to be paid for this extra, amount- 
ing to S65,292.50, unless and until Federal funds are made available for 
the purpose. Until that time arrives it cannot be stated with any degree 
of certainty how much the contractor is entitled to be paid. The risk, 
however, of securing Federal funds for this purpose was assumed by the 
contractor and not by the Commonwealth. 

The method used in financing this contract by both State and Federal 
funds, which I am informed was the usual and ordinary manner employed 
by the department in all other similar projects, makes it difficult to deter- 
mine with any degree of accuracy the amount of excess payments which. 



82 ■ P.D. 12. 

have been made to the contractor of State funds, until it is finally settled 
by the Federal authorities as to the total amount of money which they 
will allot for the payment of the contractor. Ordinarily that is not fixed 
until the contract is completed. I am advised that it has not as yet been 
done in the present case. Any amount received by the contractor above 
the sum actually allocated by the Federal government would represent 
State funds which the company was not legally entitled to receive under 
its contract. 

When the amendment was executed on October 29, 1935, the depart- 
ment had notice that the Federal government would not then approve 
the amendment, and that it would not permit the payment for the work 
to be done thereunder by Federal funds. The department was without 
the authority of law to apply State funds for this purpose. The matter 
of payment, therefore, was settled by the contract, and the department 
should have allowed the matter to remain where the contract had placed 
it: that is, with the contractor. If the latter went ahead and performed 
the work under the amendment, then it had to rely entirely upon the 
allocation of Federal funds for payment of this work. It follows, there- 
fore, that the department was not warranted in using State funds to pay 
for any work done under the amendment. 

The good faith of all the parties in interest and the receipt of a benefit 
by the Commonwealth in accepting the work performed under the amend- 
ment are of no avail to the contractor. Safford v. Lowell, 255 Mass. 220; 
Boston Electric Co. v. Cambridge, 163 Mass. 64. The execution of the 
amendment without the written assent of the Federal government to pay 
the increased cost would not impose any liability on the Federal govern- 
ment, because it never became a party to the amendment and, in fact, 
has never entered into any contractual relations with the company. The 
Commonwealth, likewise, would not be bound, because the department 
could not, under the circumstances, transfer the financial burden from the 
Federal government to the State. No implied obligation upon the part 
of the Commonwealth to pay the contractor could arise from the action 
of the department so long as the original contract remained unaltered 
and unimpaired. Agawam National Bank v. South Hadley, 128 Mass. 503; 
Brown v. Newhuryport, 209 Mass. 259. 

St. 1934, c. 380, made no appropriation for the performance of the 
construction work, and, as a matter of fact, no specific appropriation for 
this particular project has ever been enacted. There would seem to be 
no practical difference to a contractor between a case where an appro- 
priation has been exhausted and where, as here, the contributions made 
by a third party, and which are the only source from which payments may 
be made, are at present insufficient to pay the contractor in full for the 
work done. Adams v. County of Essex, 205 Mass. 189; Dyer v. Boston, 
272 Mass. 265. 

The present situation is one which the contractor has voluntarily as- 
sumed by the execution of its contract. If the contractor is damaged by 
the failure of the Federal government to allocate funds sufficient to ade- 
quately compensate it for the work done, yet it cannot complain, as the 
measure of compensation was fixed so as not to exceed the total amount 
granted in Federal funds for the completion of the work. "Although it 
seems a hardship for the petitioner not to be able to recover for the extra 
work which apparently it performed in good faith, yet such failure results 
from its not obtaining from the architect or his agents written authority 



P.D. 12. ■ 83 

to perform the work, and from not complying with the other provisions 
of art. XVII of the contract." Crane Construction Co. v. Commonwealth, 
290 Mass. 249, 254. 

7. There is no habihty upon the part of the Federal government to allo- 
cate $65,292.50 in payment for the work done under the amendment of 
October 29, 1935. Of course, the Federal government is free to make 
such an allocation of funds, but until it does so there is no liabihty therefor. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Local Lice?ismg Authorities — License Fee. 

April 7, 1937. 
Joitit Committee on Legal Affairs. 

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

"Kindly advise us as to whether or not, in your opinion, the provisions 
of section 12 of the Liquor Control Act permit a local licensing authority 
to charge a license fee differing in amount from the fee charged for another 
license of the same kind and type issued under the said section. 

Hotels, restaurants, clubs and taverns are licensed to sell alcoholic 
beverages under the provisions of G. L. (Ter. Ed.) c. 138, § 12, as amended. 
Are local licensing authorities required under this section to fix a uniform 
fee which shall be paid for all hcenses of the same type?" 

With relation to section 12 of chapter 138, as amended, it is apparent 
that the intention of the Legislature, as shown by the wording of said 
section, was to provide for uniform fees for the various types of licenses. 
It was not intended that the local licensing authority should have the 
power to charge unlike fees for similar licenses to different applicants. 

I accordingly answer in the affirmative the specific question in the 
second paragraph of your communication. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Fire Department — Reserve Firemen. 

April 7, 1937. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — Replying to your recent communication relative to re- 
serve firemen, I am in accord with the opinion which you say was ex- 
pressed informally in previous years by this department, and with which 
you concur, which is, in substance, to the effect that actual employment 
in the sense of delegation to immediate active participation in the work 
of the fire department is not necessarily essential to the fulfillment of the 
requirement of Civil Service Rule 17, section 2, for a reserve fireman. 

The nature of the work of the reserve firemen is such that the general 
acceptance as such members and the assignment to duty as reserve fire- 
men is the equivalent of the actual employment which is the criterion of 
the appointment under said section 2. 

Very truly yours, 

Paul A. Dever, Attorney General. 



84 P.D. 12. 

Alcoholic Beverages — License — Fee. 

When the Alcoholic Beverages Control Commission itself issues a li- 
cense for a package goods store, on account of the failure of a local 
board so to do under an order, the Commission may itself fix the fee 
for such license. 

April 7, 1937. 

Alcoholic Beverages Control Commission. 

Gentlemen : — You have asked my opinion, in effect, as to whether 
your Commission, when it exercises the power vested in it under G. L. 
(Ter. Ed.) c. 138, § 67, as amended, and itself issues a package goods 
store license, estabhshed by section 15 of said chapter 138, as amended, 
may at the same time itself fix the fee to be charged for such license, 
irrespective of the prior establishment by a local board of a general fee 
purporting to be applicable to all licenses similar to that issued by the 
Commission. 

I am of the opinion that when your Commission exercises its power to 
issue a license of the type provided for by said section 15, on account of 
the failure of a local board to comply with an order calling for such issu- 
ance, your Commission may itself fix the fee for such hcense. 

Said section 67 provides, in its applicable part : — 

"If the local licensing authorities fail to grant a license or to perform 
any other act when lawfully ordered so to do by the commission upon 
appeal or otherwise, within such time as it may prescribe, the commission 
may itself issue such license or perform such act, with the same force and 
effect as if granted or performed by the local licensing authorities." 

When, after a hearing, your Commission has voted to sustain the 
appeal of an applicant for a license under said section 15, as amended, 
and has ordered a local board to grant the license, it becomes the duty of 
the local board to grant such a license and to fix the fee for such particular 
license under that portion of said section 15, as amended, which reads: — 

"The local licensing authorities shall fix the amount of the license fee 
within the aforesaid limits, for the shop or other place of business desig- 
nated in the license, such amount being subject to change from year to 
year by said authorities as they shall deem just and proper in view of the 
location of the licensee's place of business, his probable volume of sales, 
or of his actual volume of sales in the previous year." 

The fact of a prior establishment by a local board of a general fee, ap- 
plicable indiscriminately to all hcensees of package goods stores of a 
certain class, does not as a matter of law fix the fee for the paiticular 
license which such board is ordered to grant by the Commission. 

Inasmuch as in such a case the local board has not, as you state, issued 
the license which it was directed to grant nor has properly and specifically 
fixed any fee for such particular license, the duty falls upon your Com- 
mission to issue the license itself and to perform the act of properly and 
specifically fixing a fee for it, which the local board has not done. 

The order of the Commission to the local board to issue a license for a 
particular package goods store comprehends within it as an integral part 
thereof, as a matter of law, an order to perform the act of fixing a par- 
ticular fee for the specific license to be so issued. In lieu of performance 
by a local board of the acts of issuing the required hcense and of fixing a 
fee for that particular license, your Commission is charged with the dutj- 



P.D. 12. 85 

of performing both acts itse^lf under said section 67, and the fee which the 
Commission then fixes for such license is the proper fee, and the same is to 
be accepted by your Commission and by the city or town treasurer, to 
whom your Commission will pay it over in full payment for said license. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Utilities — Electric Light Companies — Consolidation. 

April 8, 1937. 

Hon. A. C. Webber, Chairman, Department of Public Utilities. 

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

"Can an electric light company be consolidated with a company organ- 
ized in this Commonwealth prior to 1908 'for the purpose of making and 
selhng gas for light and for heating, cooking, chemical and mechanical 
purposes and generating and furnishing electricity for light and power?'" 

Your question relates to the right of the Northern Berkshire Gas Com- 
pany to consolidate with the Deerfield River Electric Company. You 
advise me that the necessary preliminary steps have been taken by such 
companies to effect a consolidation, and that a petition for such consoli- 
dation is before you for your approval. 

You also advise me that — 

"The Northern Berkshire Gas Company was organized in 1889 'for 
the purpose of making and selling gas for light and for heating, cooking, 
chemical and mechanical purposes and generating and furnishing electricity 
for light and power.'" 

I assume that such organization was made under P. S. c. 106, § 11, in 
force in 1889. I also assume, from what you have written me, that the 
Deerfield River Electric Company is without doubt an "electric com- 
pany," as those words are used in the applicable statutes. 

G. L. (Ter. Ed.) c. 164, § 96, first effective in 1908 as section 2 of chap- 
ter 529 of that year, provides, among other things, that an electric com- 
pany may consolidate with another electric company, the lines of which 
are in the same or contiguous municipalities. I assume, from the tenor 
of your communication, that both companies have their lines in contig- 
uous municipalities, and that there are no legal obstacles to their consoli- 
dation if the Northern Berkshire Gas Company is an "electric company," 
as those words are used in said section 96; and that your question arises 
from a doubt upon the part of your Commission as to whether a company, 
originally organized prior to 1908 for the purposes of both selling gas and 
furnishing electricity, may be considered an "electric company," within 
the meaning of those words as used in said section 96. 

I am of the opinion that the Northern Berkshire Gas Company may be 
so considered an "electric company," and I answer your question in the 
affirmative. 

The pertinent part of said G. L. (Ter. Ed.) c. 164, § 96, reads as fol- 
lows: — 

"A gas company may purchase the property of another gas company 
whose gas mains are in the same or contiguous municipalities, or may con- 



86 P.D. 12. 

solidate with such other gas company, and such other gas company ma}^ 
sell and convey its property to, or may consolidate with, such first men- 
tioned gas company; and an electric company may purchase the property 
of another electric company whose lines are in the same or contiguous 
municipalities, or of a combined gas and electric company whose gross 
receipts for the preceding financial year from the sale of electricity are at 
least three times its gross receipts from the sale of gas and whose lines 
are in the same or contiguous municipalities, or may consolidate with such 
other electric company or such gas company, and such other electric com- 
pany or such gas company may sell and convey its property to, or may 
consolidate with such first mentioned electric company; . . ." 

By section 1 of said chapter 164 "electric company" is defined as — 

"a corporation organized under the laws of the commonwealth for the 
purpose of making by means of water power, steam power or otherwise 
and selling, or distributing and selling, electricity within the common- 
wealth, or authorized by special act so to do, even though subsequently 
authorized to make or sell gas." 

In considering whether a company falls within this definition, the fact 
that it was organized, as was the Northern Berkshire Gas Company, at 
one and the same time to sell gas as well as to sell electricity is immaterial. 
Such company was, even so, organized to sell and distribute electricity, 
and thus falls under the terms of the definition. Accordingly, it is an 
"electric company" and authorized by the terms of said section 96 to 
consolidate with another electric company. 

It is possible that because the Legislature has given no authority in 
said section to an electric company to consolidate with what is termed 
therein a "combined gas and electric company" some doubt has arisen 
in the minds of your Commission as to the right of the Deerfield River 
Electric Company to consolidate with the Northern Berkshire Gas Com- 
pany. 

No definition of a "combined gas and electric company" is given in 
said chapter 164. Those words appear to be used by the Legislature, in 
the above-quoted portion of said section 96, to describe with particularity 
a gas company which, subsequent to its organization, has been granted an 
added power of selling electricity, even though such company may also 
fall within the statutory definition of "electric company." Such a cor- 
poration is by no means precisely similar to one originally organized for, 
and authorized to do, both forms of business. Such subsequent authori- 
zation is provided for in section 23 of said chapter 164. The purchase of 
the franchise of a gas company by an electric company, except as pro- 
vided in section 96, is forbidden by section 100 of said chapter 164, and 
the only authority for an electric company to purchase a gas company, 
given by section 96, is the authority to purchase a "combined gas and 
electric company" whose electric sales have grown to far exceed its gas 
sales. To interpret the quoted words as suggested above harmonizes the 
designated provisions of said sections 23, 96 and 100. 

However, a corporation such as the Northern Berkshire Gas Company, 
organized as it was, is an "electric company," under the statutory defini- 
tion, and not merely a "combined gas and electric company," as those 
words are employed in said section 96 to designate a particular type of 
gas or electric company. It follows that, being an electric company, it is 
exphcitly empowered by the terms of section 96 to consolidate with an- 



P.D. 12. 87 

other electric company, and the fact that no such power of consoHdation 
is specifically given by the section to what is therein designated as a 
"combined gas and electric company" is entirely irrelevant. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Mental Diseases — State Hospital — Hours of Work of Employees — 

Autopsy. 

April 8, 1937. 

Dr. Harold F. Norton, Superintendent, Boston State Hospital. 

Dear Sir: — In relation to the forty-eight-hour week for certain 
employees of the Commonwealth in State institutions you have asked my 
opinion upon the following question: — 

"(1) Is the forty-eight-hour week limited to that week alone or can a 
person work more than forty-eight hours one week and less than forty- 
eight hours the next week; or can a person work more than eight hours 
one day and less than eight hours the following day, so that the ultimate 
total is an eight-hour day or a forty-eight-hour week?" 

The apphcable statute (G. L. [Ter. Ed.] c. 149, § 39) as most recently 
amended by St. 1935, c. 444, § 1, reads: — 

"The hours of labor of laborers, workmen and mechanics, of ward at- 
tendants, ward nurses, industrial and occupational therapists and watch- 
men, and of employees in the kitchen, dining-room and domestic services, 
in state institutions, and of officers and instructors of state penal institu- 
tions, shall not exceed forty-eight in each week. Any person whose hours 
of labor are regulated by this section and whose presence is required at 
any such institution seven days a week shall be given at least four days 
off in each month, without loss of pay, in addition to the regular annual 
vacation. The words 'hours of labor' as used in this section shall not be 
deemed to include any period of time during which a person is in his living 
quarters wherever located although his presence there is required for the 
purpose of exercising a measure of supervision over patients or inmates 
through availability for duty during such time. This section shall not 
prevent the superintendent, warden, or executive officer from requiring 
the services of any person in any emergency where the health or safety of 
patients or inmates would otherwise be endangered, or in any extraor- 
dinary emergency, or in apprehending an escaped inmate, nor shall it 
apply to the hours of labor of any person whose position entitles him to 
family maintenance as a part of his compensation." 

The words of the first sentence of the above-quoted section, "shall not 
exceed forty-eight in each week," refer to calendar weeks and do not 
permit a person, subject to the section, to work more than the designated 
number of hours in one week, even if he works less than such number in 
another week. The work of laborers, workmen and mechanics, if in such 
institutions, is also limited by the provisions of G. L. (Ter. Ed.) c. 149, 
§ 30, as amended by St. 1936, c. 367, which restrict their labor to six days 
a week and "to eight hours in any one day." As to this latter class, they 
may not work more than the designated number of hours in one day even 
if they work less during any other. This limitation as to eight hours in 
any one day does not apply to other classes of employees mentioned in 



88 P.D. 12. 

such section, provided always that they do not work more than forty- 
eight hours in any one week, subject to the various other provisions men- 
tioned in said section 39. 

You have also asked my opinion upon another question, as follows: — 

" (2) In the event that an individual dies in the Boston State Hospital, 
who has the right to give permission for an autopsy; or in the case of a 
patient dying who turns out to be an overseers' case, a patient without 
relatives, who has the right to give permission for an autopsy?" 

If a patient dies at the Boston State Hospital and the body is not 
claimed by relatives or friends, the superintendent of the Boston State 
Hospital is the one who has the right to cause an autopsy to be made. 

G. L. (Ter. Ed.) c. 113, § 5, provides as follows: — 

"Before surrendering the body of any such person as provided in the 
four preceding sections, the chief medical officer of any institution named 
in section one may, if the cause of the death cannot otherwise be deter- 
mined and if such body is unclaimed by relatives or friends, cause an 
autopsy to be made upon it." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Welfare — Department — Old Age Assistance — Rules — Local 

Bureaus. 

April 13, 1937. 

Hon. Walter V. McCarthy, Commissioner of Public Welfare. 

Dear Sir : — You have asked me the following question with relation 
to section 7 of the "Rules Relating to the Administration of the Old Age 
Assistance Law," made by your department: — 

"Is there anything inconsistent in section 7 . . . with the authority 
vested in the Department of PubHc Welfare by G. L. (Ter. Ed.) c. 118A, 
§ 10? In other words, has the department gone beyond the scope of its 
authority in any degree in establishing the rule in question?" 

Said section 7 of the aforesaid rules reads as follows : — 

"A separate division must be established in each board of public wel- 
fare, designated as the Bureau of Old Age Assistance, as provided in sec- 
tion 2 of the law. 

In cities and in towns assisting one hundred or more individuals under 
Old Age Assistance, the Bureau of Old Age Assistance must be provided 
with separate quarters. 

The bureau shall be composed of three members, one of whom shall be 
an interested citizen elected by the other members of the bureau, and 
who is not a selectman or member of the board of public welfare. 

In cities and in towns assisting one hundred or more individuals under 
Old Age Assistance, a supervisor of Old Age Assistance should be ap- 
pointed by the bureau, who shall act as the executive officer of the bureau. 
In towns assisting less than fifty individuals under Old Age Assistance, a 
member of the bureau may be appointed the supervisor and serve as the 
executive officer." 

I answer your question to the effect that your department appears to 
have acted without authority in making said section 7 of the said rules. 



P.I). 12. 89 

G. L. (Ter. Ed.) c. 118A, as amended by St. 1936, c. 436, § 2, reads as 
follows : — 

"Each board of public welfare shall, for the purpose of granting ade- 
quate assistance and service to such aged persons, establish a division 
thereof to be designated as the bureau of old age assistance. In deter- 
mining the need for financial assistance, said bureaus shall give considera- 
tion to the resources of the aged person. Separate records of all such 
aged persons who are assisted shall be kept and reports returned in the 
manner prescribed by section thirty-four of chapter forty-one and by 
sections thirty-two and thirty-three of chapter one hundred and seven- 
teen. The department shall make an annual report to the general court, 
and also such reports to the social security board established under the 
federal social security act, approved August fourteenth, nineteen hundred 
and thirty-five, as may be necessary to secure to the commonwealth the 
benefits of said act." 

The Legislature by the foregoing enactment appears to have dealt with 
the creation of local bureaus of old age assistance. It does not appear to 
have been the intent of the Legislature that the mode of constituting such 
bureaus or divisions should not be left to the local boards of public wel- 
fare but should be governed by rules made by the State Department of 
Public Welfare. 

The grant of rule-making power to the State Department of Pubhc 
Welfare is contained in section 10 of said chapter 118 A, as amended, and 
is hmited to making rules (1) relative to giving of "notice" and to "reim- 
bursement" provided for by the said chapter, and (2) "relating to the 
administration of this chapter." It cannot fairly be said that the provi- 
sions of said section 7 fall within either of these two classes. It does not 
appear to have been the intent of the Legislature that by the words "re- 
lating to the administration of this chapter" authority was to be vested 
in your department to provide for the constitution of the local bureaus, 
the creation of special offices therein, the designation and number of their 
members and the necessity of approval of their organization by your 
department. 

You have also asked me concerning G. L. (Ter. Ed.) c. 41, § 34, the 
following question : — 

"Does the section above quoted vest authority in the Department of 
Public Welfare to request local boards of public welfare to furnish com- 
plete information concerning applications for relief?" 

Said section 34 reads as follows : — 

"The board of public welfare shall keep books so arranged as to readily 
furnish information required by law relative to all needy persons aided 
by them, and all further information as to relief applied for, whether given 
or refused, the preservation of which may be of importance to the town 
or to the commonwealth, stating the amount and kind of aid given and 
the reasons for giving or refusing it." 

Your department undoubtedly has a right to inspect the books referred 
to in said section 34 and the records referred to in G. L. (Ter. Ed.) c. 117, 
§ 32. You have a right to require the production of books and papers by 
summons, relative to old age assistance, under section 10 of said G. L. 
(Ter. Ed.) c. USA, and under section 5 of said chapter 118A, as amended, 
with relation to dependent children. 



90 P.D. 12. 

I am not informed as to the status of the "cases" referred to by you in 
your letter of March 16, 1937, to the executive director of the board of 
public welfare in Boston, which you call to my attention, so that I am 
unable to advise you as to what powers you may have in requiring pro- 
duction of books and records before you concerning them, but an applica- 
tion by you of the principles which I have stated above to these particular 
"cases" should apprise you of the authority of your department in the 
matter. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Inspector of Animals — Nomination — Approval — Appointment. 

April 16, 1937. 

Mr. Charles F. Riordan, Director, Division of Livestock Disease Control^ 
Department of Agriculture. 

Dear Sir : — Replying to your letters relative to the appointment of 
an inspector of animals in Marlborough, in which you ask my advice as to 
what you might do in regard to the appointment of an inspector under the 
circumstances which you have outlined in your letter, let me say that I 
think you yourself might make the appointment bv virtue of the provi- 
sions of G. L. (Ter. Ed.) c. 129, § 16. 

As I understand the facts which you have set forth, the mayor of the 
city made a nomination of an individual to be an inspector of animals, 
under section 15, which nomination you did not approve. The term of the 
inspectors of animals is, obviously, from the language of the statute, in- 
tended to be for one year only, and the term of this inspector ceased, pre- 
sumably, at some time in March or April. In so far as he is now acting 
as an inspector of animals he does so either as a holdover or as a de facto 
officer, but, inasmuch as his nomination was not approved by you, he has 
not been appointed for the coming year's term, and as no other nomina- 
tion has been submitted to you there is no one placed before you, by action 
of the mayor, whom you could approve so that the mayor may perform 
his duty of appointment. Under such circumstances the mayor would 
seem not to be proceeding with his duty, or at all events he has not made 
an appointment of the necessary inspector. In view of this, the provisions 
of section 16 would appear to be applicable, and it is apparent from these 
provisions that, where the mayor has not complied with the requirements 
of section 16 and has not made a required appointment of an inspector, 
you, as Director of the Division, have authority to appoint an inspector 
for such term. It is not a question of making a removal, and even if such 
an inspector be under the provisions of the civil service, that would not 
interfere with your appointing some one to the office which he formerly 
occupied, because the term of his office was for only one year and has 
already expired. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 91 

Registration of Certified Public Accountants — Information to the Public — 

Applicants for License. 

April 23, 1937. 

Mr. James J. Sughrue, Director of Registration, Department of Civil 

Service and Registration. 

Dear Sir: — You have asked my opinion, in effect, as to whether the 
Board of Registration of Certified Pubhc Accountants is required to dis- 
close to members of the public information relative to the examination 
by the Board of applicants for registration as certified public account- 
ants. 

By the terms of G. L. (Ter. Ed.) c. 112, § 87 A, the said Board is required 
to keep "a registry of all persons registered by it which shall be open to 
public inspection" and a duplicate hst of such registry in the office of the 
Secretary of the Commonwealth, likewise open to inspection by the 
public. Aside from this registry of those registered as certified public 
accountants, and its duplicate, the Board is not required to keep any other 
records relative to such applicants which are to be open for public inspec- 
tion, nor is it required to furnish information concerning the applicants 
or their examinations other than that set forth in such registry. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Teachers' Retirement — Credit for Prior Service — Commonwealth — Met- 
ropolitan District Commission. 

April 27, 1937. 

Hon. James G. Reardon, Chairman, Teachers' Retirement Board. 

Dear Sir: — You have asked my opinion upon certain facts as fol- 
lows : — 

"A member of the Teachers' Retirement Association who was born 
November 21, 1866, and is therefore required under the law to retire on 
July 1, 1937, has served in the public schools of Massachusetts as fol- 
lows: — Cambridge, from October 10, 1922, to September 1, 1924, and 
from November 17, 1924, to date. She also worked for the Metropolitan 
Water Works from April 21, 1896, to June 20, 1900. 

Will you kindly inform me as to whether or not credit should be al- 
lowed, as provided by G. L. (Ter. Ed.) c. 32, § 10 (7), for the service the 
above teacher had in the MetropoUtan Water Works from April 21, 1896, 
to June 20, 1900?" 

No provision is made by the statutes with relation to the retirement 
system for teachers by which the time of service which you have indicated 
as served by the teacher in question with the Metropolitan Water Works 
may be credited to such teacher in determining her retirement allowance. 
Although credit for prior service rendered to the "Commonwealth" may 
be given under G. L. (Ter. Ed.) c. 32, § 10 (7), the word "Commonwealth" 
as there used does not include the Metropolitan District Commission nor 
its predecessors. Provision is not made for credit for service with the 
latter bodies in connection with the teachers' retirement system, in con- 
tradistinction to the provision which is made specifically in regard to the 
State retirement system under sections 1 and 2 of said chapter 32. 



92 P.D. 12. 

Unless such a former employee of the Metropolitan District Commis- 
sion, or its predecessors, had first entered the State Retirement Associa- 
tion and from there had passed into the Teachers' Retirement Associa- 
tion, by which process such teacher would acquire credit for all such 
prior service under G. L. (Ter. Ed.) c. 32, § 9 (4), no term of the appHcable 
statute allows the giving of credit for the earlier service with the Metro- 
politan District Commission or its predecessors. 

In the absence of any language in the statute specifically providing for 
transfer of accumulated funds or credit for service to those in the Teachers' 
Retirement Association who had formerly been in the service of the 
Metropolitan District Commission, or its predecessors, and had never 
subsequently been in the State Retirement Association, a legislative intent 
to give such credit cannot properly be assumed. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Alcoholic Beverages — Summer Licenses — Estimates — Amendments. 

May 12, 1937. 

Alcoholic Beverages Control Commission. 

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

"1. May a local licensing authority which has properly made such an 
estimate prior to April first amend the estimate if the amendment is 
made at a proper meeting also held prior to April first? 

2. May a local licensing authority which has properly made such an 
estimate prior to April first amend the estimate if the amendment is made 
at a proper meeting held subsequent to April first?" 

The apphcable provision of the statute, G. L. (Ter. Ed.) c. 138, § 17, 
as amended, is as follows: — 

"... the local licensing authorities may make an estimate prior to 
April first in any year of such temporary resident population as of July 
tenth following, a copy of which estimate shall be transmitted forthwith 
to the commission, . . ." 

It is to the advantage of the general public that the estimates of the 
local licensing authorities relative to summer population should be made 
as accurate as possible. It would not seem that the rights of any one 
would be prejudiced by amendments to original estimates. I see no 
reason why such amendments should not be made at any time, but if 
made after April first they cannot be treated as having a retroactive 
effect to justify the cancellation of licenses already granted under a prior 
estimate. 

Accordingly, with the above proviso, I answer both your questions in 
the affirmative, and such answers are in harmony with the opinion ren- 
dered by the Attorney General to your Commission on July 24, 1935 
(Attorney General's Report, 1935, p. 86). 

Very truly yours, 

Paul A. Dever, Attorney General. 



I 



P.D. 12. 93 

Civil Service — Certification of Laborers — Position — Prior Employment. 

May 13, 1937. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You advise me, in effect, that you had upon your eli- 
gible Hst for certification of laborers, among others, certain laborers who 
during a recent period of employment with the Boston Transit Depart- 
ment had worked for some considerable period of time at the special work 
of grouting with such Boston Transit Department, and that thereafter 
they, together with other laborers who had been employed by the Boston 
Transit Department, had their connection therewith severed and were 
placed again upon the eligible list of laborers. 

You also advise me that in the original "certification of these particular 
men grouting experience was not recognized and was not requested in the 
' initial requisition. Common laborers were certified and these men ap- 
pointed as such. These men were assigned to this work in the same man- 
ner that other laborers were assigned to other types of employment." 

While the Attorney General does not pass upon questions of fact, I 
gather from the quoted portion of your letter, together with other state- 
ments therein, that "grouting" is work which may be performed by 
"laborers" generally, and that a position as a "grouter" is not differ- 
entiated from any other position involving laboring activity, in the classi- 
fications established by your department, in the manner in which car- 
penters, bricklayers and certain other special trades were distinguished 
in your classifications from laborers. 

The applicable provision of the civil service rules to which you call my 
attention (Rule 35, § 2) reads as follows: — 

"In case the employing officer shall request in his requisition the cer- 
tification of persons with experience in the department, the Commissioner 
shall give preference in certification to all persons who have served one 
year in the department in the same position to fill which requisition is 
made, and who have not been removed or discharged for cause, or who 
have resigned without charges pending." 

The requisition which has been made upon you by the Boston Transit 
Department states that it is made as follows: "Title of position — 
laborer." To this is added, near the end of the application, under the 
heading "Special quafifications, if any", — "These men must be experi- 
enced in grouting in subways and tunnels." 

I am of the opinion that the work "in the same position," to fill which 
requisition is made, as used in your rule, is here indicated by the requisi- 
tion, giving the title of the position required as to "laborers," and that 
prior employment in a special form of work ordinarily done by "laborers" 
does not entitle persons who have been employed in such work to be 
preferred upon requisitions for laborers, even though a request is made 
for persons experienced in the particular form of work done by laborers 
indicated as "grouters." The words of your rule applying to "persons 
with experience in the department" refer to "persons who have served 
one year in the department in the same position to fill which requisition 
is made." In the instant matter, if requests can be said to have been 
made in the requisition for persons with experience in the department, 
it would mean persons who have served one year in the department as 
laborers, and would not apply to persons such as those referred to in your 



94 P.D. 12. 

letter, who are laborers, in connection with any particular branch of com- 
mon labor performed by them. They would have the same preference in 
certification as any other laborer who had served one year in your de- 
partment. It would seem in the instant matter that a request was made 
for those in the position of laborer and to do work which is part of labor. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Utilities — Mortgage Note — Amount Approved. 

May 20, 1937. 
Hon. A. C. Webber, Chairman, Department of Public Utilities. 

Dear Sir: — You have asked my opinion upon the following question 
with relation to a note and mortgage made by an electric company : — 

"Is a mortgage note securing a mortgage upon the franchise and prop- 
erty of a corporation subject to the provisions of G. L. (Ter. Ed.) c. 164, 
within the restriction of section 13 of said chapter that the bonds shall not 
exceed the capital stock and cash premiums thereon paid to the corpora- 
tion?" 

The applicable portion of the statutes, G. L. (Ter. Ed.) c. 164, § 13, 
reads : — 

"A corporation subject to this chapter may, by vote of a majority in 
interest of its stockholders at a meeting called therefor, and subject to the 
limitations and restrictions of the following section, issue bonds at not 
less than par, to an amount not exceeding its capital stock actually paid 
in at the time of such issue and applied to the purposes of the corporation, 
increased by all cash premiums paid to the corporation thereon and like- 
wise so applied, and bearing interest at such rate as the department shall 
approve, and, if issued under a mortgage existing on June second, nine- 
teen hundred and twenty, by the provisions of which the rate of interest 
on bonds issued thereunder is fixed, at a price and with provisions for 
amortization of any discount approved by the department as consistent 
with the public interest; provided, that the terms of the mortgage so 
permit; and may secure the payment of the principal and interest of said 
bonds by a mortgage of its franchise and property." 

This portion of the statute limits the amount of "bonds" which may be 
issued, whether such bonds are secured by mortgage or not. It does not 
purport to apply to notes, secured by mortgage or otherwise. 

The original enactment, St. 1886, c. 346, § 3, now embodied in said sec- 
tion 13, likewise specifically referred only to "bonds" as the subject of a 
limitation upon amount of issue similar to that in said section 13. Various 
statutes passed since 1886 amending said chapter 346 have not added 
words applicable to other instruments, such as notes or other forms of 
evidences of indebtedness. 

This being so, the word "bonds" in said section 13 cannot be inter- 
preted by implication to include notes or notes secured by mortgages. 

Had it been the intent of the Legislature to make these last-named 
forms of obligations subject, hke "bonds," to the provisions of said sec- 
tion 13, it would have so stated by appropriate language. The fact that 
the General Court over a long period of years has seen fit not so to include 



P.D. 12. 95 

them in said section 13 and similar prior enactments makes it evident 
that the legislative intent was not to extend the scope of the provisions 
as to amount of issue to any other instruments than "bonds." 

It may be that the purpose giving rise to these enactments cannot be 
completely fulfilled by the narrow scope of the statute, and that without 
including notes together with bonds therein the result anticipated from 
this legislation may in part be defeated; yet that condition is one which 
can be remedied only by the passage of some further measure by the 
Legislature. 

Your Board is not altogether without power to act in the interest of a 
corporation's stockholders or of the investing public, for the provisions of 
section 14, as amended, of said chapter 164 give you power to authorize 
or to withhold authorization of the issue by gas and electric companies of 
"such amount of stock and bonds and of coupon notes and other evi- 
dences of indebtedness" as you may from time to time decide to be pres- 
ently necessary or unnecessary, as the case may be, "for the purpose for 
which such issue of stock, bonds, coupon notes or other evidences of 
indebtedness has been authorized." 

Although the terms of said section 13, as I have stated, do not prohibit 
the making of a note secured by mortgage in an amount greater than 
would be permitted in an issue of bonds, the actual issue of such note is 
subject to your approval. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Extraordinary Expenses — Emergency Transfer of 

Funds. 

Where a commission undertook to create a liability upon the Common- 
wealth, as to which there had been no legislative appropriation, pay- 
ment of such a sum does not constitute an extraordinary expense; 
nor does any emergency exist in relation thereto which will warrant 
a transfer of money, appropriated to the Executive Department 
under G. L. (Ter. Ed.) c. 6, § 8, to the commission for such purpose. 

May 25, 1937. 
His Excellency the Governor, and the Honorable Council. 

Gentlemen: — You have asked my opinion in the following communi- 
cation : — 

"At a meeting of the Governor and Council held Wednesday, May 19, 
1937, consideration was given to communications received from the Com- 
mission on Investigation of Salaries of Judges of Probate and Insolvency. 

Pending further action, the Executive Secretary was directed to request 
an opinion of the Attorney General advising the Governor and Council 
whether they have authority to comply with the request of said Com- 
mission." 

The request of the Commission therein referred to reads : — 

"May 1, 1937. 

To His Excellency the Governor, and the Honorable Council. 

Sirs : — At the final meeting of the Special Recess Commission created 
under chapter 64 of the Resolves of 1936, it was voted that an additional 
$100 be paid the clerk of the Commission, Mr. Arthur W. Woodman. 



96 P.D. 12. 

The appropriation granted for conduct of the investigation made by 
this Commission is inadequate to provide funds to pay this additional 
compensation due the clerk for services rendered. 

The Commission requests that your favorable action be taken on this 
request and that the sum voted the clerk be paid from the contingency 
fund. 

A copy of the action taken by the Commission, bearing signatures of 
the members approving the vote, is attached hereto." 

It also appears from a copy of the records of the said Commission, ap- 
pended to said letter, that, on November 24, 1936, at what is said in the 
Commission's letter to have been its final meeting, it voted to pay "an 
additional SlOO" for the services of its clerk. 

The resolve creating the said Commission (Res. 1936, c. 64) reads : — 

"Resolved, That a special unpaid commission, to consist of two mem- 
bers of the senate to be designated by the president thereof, five members 
of the house of representatives to be designated by the speaker thereof, 
and three persons to be appointed by the governor, with the advice and 
consent of the council, is hereby established for the purpose of making 
an investigation and study of the laws relative to the salaries of judges 
of probate and insolvency, with a view to determining the advisability of 
making changes in such salaries based on a uniform schedule or otherwise. 
In such investigation and study special consideration shall be given to 
current senate documents numbered eighty-nine, two hundred and forty- 
four, three hundred and twenty-five, three hundred and twenty-six, and 
current house documents numbered two hundred and twenty-five, six hun- 
dred and sixty-five, eleven hundred and ten, eleven hundred and eleven, 
and fourteen hundred and fifty-three. Said commission shall be provided 
with quarters in the state house or elsewhere, shall hold hearings and may 
expend, for clerical and other services and expenses, such sums, not e.x- 
ceeding, in the aggregate, five hundred dollars, as may hereafter be appro- 
priated. Said commission shall report to the general court the results of 
its investigation and its recommendations, together with drafts of legis- 
lation necessary to carry its recommendations into effect, by filing the 
same with the clerk of the house of representatives on or before the first 
Wednesday of December in the current year." 

From such resolve it is apparent that the said Commission was not 
authorized to expend for clerical and other expenses any sum in excess of 
the amount which might be appropriated by the General Court, and no 
sum exceeding in the aggregate $500. By item 33c of the supplementary 
appropriation bill (St. 1936, c. 432) the sum of $500 was appropriated for 
the expenses of the Commission's investigation. No other appropriation 
appears to have been made for that purpose, and no deficiency appropria- 
tion for such purpose was made in the general appropriation bill pre- 
viously passed in the current year. See St. 1937, c. 234. 

An appropriation of $100,000 was made in said general appropriation 
bill of the current year, in item 104, under the title "Service of the Execu- 
tive Department", — 

"For payment of extraordinary expenses and for transfers made to cover 
deficiencies with the approval of the Governor and Council." 

The governing statute, for the operation of which said item 104 was 
enacted (G. L. [Ter. Ed.] c. 6, § 8), reads: — 



P.D. 12. 97 

"An amount not exceeding one hundred thousand dollars shall be ap- 
propriated each year for carrying out sections twenty-five to thirty-three, 
inclusive, of chapter thirty-three, for the entertainment of the president 
of the United States and other distinguished guests while visiting or pass- 
ing through the commonwealth, for extraordinary expenses not otherwise 
provided for, which the governor and council may deem necessary, and 
for transfer, upon the recommendation of the comptroller, with the ap- 
proval of the governor and council, to such appropriations as have proved 
insufficient." 

It is obvious from the letter of the Commission that, since there were 
no funds available, from the appropriation which had been made for its 
expenses, with which to pay the amount of $100 which the Commission 
undertook by its vote to create as a liability upon the Commonwealth, 
the Commission was without authority to pass such vote or to create 
such a liability. The conditions prescribed by the Legislature for the 
performance of its functions must be observed and complied with by the 
Commission, and the enabling resolve defined both the powers and limi- 
tations of the Commission. The members of the Commission and also 
those dealing with it were equally obliged to ascertain and to keep within 
such legislative bounds. Adams v. County of Essex, 205 Mass. 189; Dyer 
V. Boston, 272 Mass. 265, 274. 

If the action of the Commission is to be regarded as creating some moral 
obligation on the part of the Commonwealth, it is the province of the 
Legislature to so determine, and, by a deficiency appropriation during the 
current year, to provide the necessary funds to liquidate the same. 

No power of appropriation was conferred upon the Commission. Such 
power, in accordance with our Constitution and form of government, 
rests exclusively in the General Court. Opmion of the Justices, Mass. 
Adv. Sh. (1936) 1285. 

The appropriation made under said item 104 of the appropriation bill 
of this year is not, by its terms nor as read in connection with said G. L. 
(Ter. Ed.) c. 6, § 8, intended to authorize the transfer of any part of it 
to supply deficiencies which have arisen in appropriations of past years. 

No payment of a sum voted near the close of a fiscal year to an employee 
of a Commission in excess of an existing appropriation can be considered 
as one of the "extraordinary expenses not otherwise provided for," men- 
tioned in said G. L. (Ter. Ed.) c. 6, § 8. It is not apparent from the records 
of the Commission that any emergency existed in connection with the vote 
to pay an additional sum beyond its appropriation to its employee ; there- 
fore, a payment of such sum cannot, from any viewpoint, be considered 
an "extraordinary" expense. The vote of the Commission, for reasons 
already sufficiently referred to, did not create an emergency. No emer- 
gency existed. Sajford v. Lowell, 255 Mass. 220. Moreover, the said 
Commission was without authority, upon the facts stated, to obligate the 
Commonwealth to pay a sum which was in excess of its appropriation of 
$500, so that it cannot be said that the appropriation was "insufficient," 
and a transfer from the money appropriated to the Executive Depart- 
ment under this item is not warranted because of insufficiency. 

I therefore answer your request for my opinion to the effect that, upon 
the facts presented for my consideration, the Governor and Council have 
no authority to comply with the request of the said Commission. 

Very truly yours, 

Paul A. Dever, Attorney General. 



98 P.D. 12. 

Insurance — Deferred Annuity Contracts — Foreign Company — Employer 

— Employee. 

May 27, 1937. 

Hon. Francis J. DeCelles, Commissioner of Insurance. 

Dear Sir: — You have submitted to me a memorandum of facts rela- 
tive to a proposed plan whereby Harvard University intends to purchase 
in New York from a New York insurance company, not authorized to do 
business in Massachusetts, deferred annuity contracts for its employees. 
It is stated to me that the University regards this method of establishing 
what is, in effect, a mode for pensioning superannuated employees as 
advantageous to itself in its role as an employer in the same manner as 
other employees regard "group insurance." 

The proposed plan differs from "group insurance," as such insurance is 
defined in G. L. (Ter. Ed.) c. 175, § 133, in certain details. Under the 
proposed plan the University is not a direct party to the contracts cover- 
ing the various employees, as it would be in a policy of group insurance. 
I am advised that the annuity contracts are, as one would expect, directly 
between the insuring company and the several employees, and that a 
separate agreement is to be made between the company and the Univer- 
sity, by which the latter will bind itself to pay the company half the 
amount of premiums due from the respective employees. The Univer- 
sity then intends by arrangement with its employees to deduct one-haK 
of the amount due for premiums from their respective salaries and forward 
the same to the company. As each employee reaches the agreed time for 
retirement from the University's service, payments upon the annuity 
which has been thus purchased for him will be payable by the company. 

In relation to such facts you have asked my opinion upon the following 
questions of law : — 

"1. Whether Harvard University would be violating any provision of 
Massachusetts law in putting into effect, in the method outlined in the 
memorandum, the proposed pension plan. 

2. Whether Harvard University would be violating any provision of 
either section 3 or section 160 of G. L. (Ter. Ed.) c. 175, in putting into 
effect, in the method outlined in the memorandum, the proposed pension 
plan." 

G. L. (Ter. Ed.) c. 175, § 3, reads as follows: — 

"No company shall make a contract of insurance upon or relative to 
any property or interests or lives in the commonwealth, or with any resi- 
dent thereof, and no person shall negotiate, solicit, or in any manner aid 
in the transaction of such insurance or of its continuance or renewal, 
except as authorized by this chapter or chapter one hundred and seventy- 
six or one hundred and seventy-eight, or except as otherwise expressly 
authorized by law." 

G. L. (Ter. Ed.) c. 175, § 160, reads as follows: — 

"Whoever, for a person other than himself, acts or aids in any manner 
in the negotiation, continuation, or renewal of a policy of insurance or an 
annuity or pure endowment contract with a foreign company not lawfully 
admitted to issue such policies or contracts in this commonwealth shall, 
except as provided in section one hundred and sixty-eight, be punished 
by a fine of not less than one hundred nor more than five hundred dollars; 



P.D. 12. 99 

but this section shall not apply to a duly licensed special insurance broker 
acting under said section one hundred and sixty-eight, nor to any act of 
a duly licensed insurance broker in negotiating, continuing or renewing 
policies of insurance on transportation, inland navigation and ocean and 
coastwise marine risks, nor to any insurance appertaining thereto which 
cannot, to the advantage of the insured, be placed in authorized com- 
panies. A person, other than the commissioner or his deputy, upon whose 
complaint a conviction is had for violation of this section, shall be entitled 
to one half of the fine recovered upon sentence therefor." 

Although it does not appear that there is any matter before you requir- 
ing present action on your part, and although your questions are in a sense 
hypothetical, perhaps ultimately for judicial determination, nevertheless, 
for guidance in the possible performance of duties which may hereafter 
be required of you in connection with the proposed plan, I advise you 
that I am of the opinion that, upon the facts stated, both your questions 
are to be answered in the negative. 

It is well settled that notwithstanding the provisions of the statutes 
above set forth a person resident in Massachusetts may enter into a 
lawful contract of insurance for his own benefit in another state. Allgeyer 
v. Louisiana, 165 U. S. 578. Johnson v. Mutual Life Ins. Co., 180 Mass, 
407. Stone v. Old Colony St. Ry. Co., 212 Mass. 459. 

Unquestionabty this rule of law applies to an employer who, as an 
actual party to the contract of insurance, purchases a "group policy" 
covering his employees in another state. Baseman v. Connecticut General 
Life his. Co., 301 U. S. 196. 

It is obvious that in a technical sense the relation of the employer, in 
a plan such as outlined above, to the insurer is not precisely the same as 
it would be under a "group policy," in which his name would appear as 
an insured. But in principle his relation is not essentially different, for 
in both situations the protection afforded by the contract with the com- 
pany is for the direct benefit of the employees and for the indirect benefit 
of the employer. The employer has an insurable interest in his em- 
ployees, and their protection under the company's contract in both 
instances inures also to his benefit in that "it makes for loyalty, lessens 
turn-over and the like," as was said by the United States Supreme Court 
of the employer's interest in a group policy in Baseman v. Connecticut 
General Life Ins. Co., supra. In both situations the employer, in a very 
true sense though not in a technical sense, under the proposed plan is 
buying protection for himself through contracts made directly by him in 
another state. Under the proposed plan the facts set forth show that he 
is not acting as an agent for the insurance company, nor under the ar- 
rangement contemplated can he be regarded as an agent of his employees. 
Using the words with a broad significance, the employer has a common 
interest in the transaction of purchasing and keeping alive the annuity 
contracts, and in such transaction the employee and the emploj^er may 
be regarded as joint principals. 

To consider the employer under the proposed plan as negotiating an 
annuity contract in another state with a foreign company "for a person 
other than himself," as the quoted words are used in said section 160, 
would involve so literal and narrow an interpretation of the statute as 
to do violence to the intent of the Legislature in framing it. The evil 
which was aimed at by said sections 3 and 160 was the solicitation and 
negotiation of insurance and annuity contracts in this Commonwealth by 



100 P.D. 12. 

unlicensed companies, or by agents and brokers acting on their behalf, 
either within or without Massachusetts. See Hooper v. California, 155 
U. S. 648; Nutting v. Massachusetts, 183 U. S. 553. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Lease — Dwelling House — Eviction. 

June 4, 1937. 
Hon. James T. Moriarty, Commissioner of Labor and Industries. 

Dear Sir: — Replying to your letter relative to the eviction of ten- 
ants from premises occupied for dwelling purposes, by means of "straw 
leases," let me say that G. L. (Ter. Ed.) c. 186, § 13, was intended by the 
Legislature to prevent summary eviction of a tenant from such premises 
and to require that the tenant shall have time to vacate, after a lease has 
been made, equal to the time between rent days under the former ten- 
ancy at will and the receipt by him of notice in writing of the cessation of 
the tenancy. 

The statute, in its original form as a permanent measure, was St. 1927, 
c. 339, which embodied similar provisions which had first been intro- 
duced into our statutes by Gen. St. 1919, c. 257, as emergency measures 
during a period of housing shortage, and was intended to relieve tenants 
from the hardship of our former laws with relation to hasty evictions after 
lease by a landlord. See Message of the Governor, May 21, 1919; Report 
of Commission on the Necessaries of Life to the Legislature, 1927, House 
Document No. 1100; Newman v. Sussman, 239 Mass. 283. 

The tenant will be protected by the courts in the enjoyment of the 
privileges granted him under sections 13 and 14 of said chapter 186. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Use of Manufacturer's License by Anyone other than 

the Licensee. 

A license for the manufacture of alcoholic beverages may not be used by 
anyone other than the person to whom it was issued, except when 
transferred in accordance with the provisions of the applicable statute. 

June 8, 1937. 
Alcoholic Beverages Control Commission. 

Gentlemen: — I am in receipt from you of a communication asking 
my opinion upon the following matter: — 

"The New England Distillers, Incorporated, has a manufacturer's 
license to manufacture and sell alcoholic beverages in premises located at 
14 Green Street, Clinton. 

You will note that the attorneys have requested this Commission to 
authorize Bellows and Company, a separate and distinct corporation, to 
alternate with the New England Distillers, Incorporated, in the manufac- 
ture and sale of alcoholic beverages under the said license without the 
payment of any additional license fee. 

Your opinion is requested as to whether or not, in view of the provisions 
of the Liquor Control Act, this Commission may legally grant such a 
request." 



P.D. 12. 101 

In my opinion, your Commission may not lawfully grant such a request. 

It was not the intent of the Legislature, in providing for the issuance 
of hcenses to manufacture alcoholic beverages under the provisions of 
G. L. (Ter. Ed.) c. 138, as amended, that a license for such purpose should 
be used by anyone other than the person to whom it was issued, except 
when transferred out of the ownership of the original licensee under cer- 
tain specified conditions not here applicable. Nor was it the intent of 
the Legislature, as set forth in said chapter, that more than one manu- 
facturer should be authorized to carry on business at the same premises. 

I am advised that it has been suggested to you that the lessee of the 
premises and business of a licensed manufacturer might carry on business 
at such premises temporarily under the license of his lessor for the pur- 
pose of complying or attempting to comply with certain Federal regula- 
tions. It is immaterial whether the details of the manufacture under 
such a lease are performed by the lessor or the lessee if the lessee is, as a 
matter of fact, engaging in the business. The business of manufacturing 
alcoholic beverages may not be carried on in Massachusetts without a 
license issued to the manufacturer. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Statute — Emergency Law — Effective Date. 

June 9, 1937. 

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

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

"St. 1937, c. 384, approved May 28, 1937, provides that 'this act shall 
take effect upon December first in the current year.' His Excellency the 
Governor has declared it to be an emergency law that should take effect 
forthwith. 

As it is necessary for me to certifj^ the law, will you kindly, at your 
earliest possible convenience, inform me whether this law takes effect 
upon the date the Governor declared it an emergency law or upon Decem- 
ber first as provided in the act." 

I am of the opinion that the act to which you refer took effect upon the 
date when the Governor declared it an emergency law. 

The said act was one subject to the referendum, under the provisions of 
Mass. Const. Amend. XLVIII. 

Under said article XLVIII, The Referendum, II, Emergericy Measures, 
the Governor has authority to declare a law passed by the Legislature 
without an emergency preamble to be "an emergency law," and the same 
then becomes a law upon his signing it. 

The apphcable portion of said constitutional amendment provides, as 
to the Governor's power in this respect, as follows : — 

"... but if the governor, at any time before the election at which it 
is to be submitted to the people on referendum, files with the secretary of 
the commonwealth a statement declaring that in his opinion the immediate 
preservation of the public peace, health, safety or convenience requires 
that such lavv^ should take effect forthwith and that it is an emergency 
law and setting forth the facts constituting the emergency, then such 
law, if not previousl}^ suspended as hereinafter provided, shall take effect 



102 P.D. 12. 

without suspension, or if such law has been so suspended such suspension 
shall thereupon terminate and such law shall thereupon take effect: but 
no grant of any franchise or amendment thereof, or renewal or extension 
thereof for more than one year shall be declared to be an emergency law." 

Under other provisions of the same clause of article XLVIII the law 
in question might have been declared an emergencj^ law by the Legisla- 
ture, and if that had been done it would have taken effect likewise upon 
its approval by the Governor. 

If the Legislature had passed such law without any emergency pre- 
amble, in the absence of a declaration of emergency by the Governor it 
could not have taken effect until ninety days after it had become a law 
by the signing of the same by the Governor (Mass. Const. Amend. XLVIII, 
The Referendum, 7). The mere fact that the Legislature has provided 
for its becoming effective at a later designated time ("December first in 
the current year") cannot nullify the authority specifically granted to the 
Governor by the said constitutional amendment to declare it to be an 
emergency law and to cause it to become effective upon his signing it. 
The legislative pronouncement as to the date of the law's becoming ef- 
fective, contained in the measure, can have binding force only in case the 
Governor does not exercise his constitutional power, after the measure 
has left the General Court, to declare the same an emergency law. The 
power of the Legislature to set a date upon which such a measure as that 
under consideration shall become effective is exercised subject to the pos- 
sibihty that the Chief Executive will use the paramount authority vested 
in him by the said constitutional amendment to make the measure an 
immediately effective law. To hold otherwise would be to permit a destruc- 
tion of this constitutional power of the Executive by the legislative branch 
of the government. 

Very truly yours, 

Paul A. Dever, Attorney General. 

National Guard — Death Due to Accident — Lump Sum Settlement. 

June 10, 1937. 

Lt. Col. Ralph M. Smith, President of the Board for Physical Injuries, 
Department of the Adjuta7it General. 

Dear Sir : — I have received from you the following communica- 
tion : — 

"Your opinion is requested as to whether or not the Board constituted 
under the provisions of G. L. (Ter. Ed.) c. 33, § 69, as amended, may make 
a lump sum settlement with the dependents of a soldier whose death re- 
sulted from injury coming under the provisions of said section, in lieu of 
the weekly payments provided for in G. L. (Ter. Ed.) c. 152." 

I answer you to the effect that your Board has authority to make such 
• a lump sum settlement as you describe, if agreed to by the said dependents. 

G. L. (Ter. Ed.) c. 33, § 69, provides, in part, with reference to your 
Board's authority covering compensation to said dependents: "... said 
board shall exercise all the powers given by said provisions of chapter one 
hundred and fifty-two to the department of industrial accidents." 

By section 48 of said chapter 152 the Department of Industrial Acci- 
dents, under circumstances similar to those which you describe, is em- 



f 



P.D. 12. 103 

powered to fix an amount for a lump sum settlement. While your function 
in regard to compensating rlopendonts of a deceased soldier is not precisely 
that of the Department of Industi-ial Accidents, nevcMtheless, the two 
functions are so similar that the power to approve of lump sum settlements 
in cases of the instant sort, vested in said department, is in its nature the 
same as the power to effect such settlements on the part of your Board 
under said s(>ction 69 of chapter 33. In either instance, agreement thereto 
by the dependents is a prerequisite to the exercise of the power to effectuate 
a lump sum settlement. 

Very truly yours, 

Paul A. Dever, Attorney General. 



State Prison Colony — Hospital — Medical TreaimeyU — Prisoners — 

Segregation. 

June 16, 1937... 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — You have asked my opinion on certain questions of law 
relative to various sections of G. L. (Ter. Ed.) c. 127, as amended. 
Your first question is : — 

"Will you please advise me whether or not the hospital of the State 
Prison Colony comes within the meaning of the word 'hospital,' as found 
in G. L. (Ter. Ed.) c. 127, § 117. For your information I might add that 
the State Prison Colony hospital has been given an AA rating by the 
American Surgical Association." 

I answer this question to the effect that the hospital of the State Prison 
Colony is a "hospital," within the meaning of said section 117. 
Your second question is : — 

"Will you also advise me whether or not the intent of the words 'medi- 
cal treatment,' as contained in said section, also includes surgical treat- 
ment." 

I answer your second question to the effect that the words "medical 
treatment," as used in said section 117, include "surgical treatment" 
within their meaning. 

Your third question is : — 

"Will you also advise me whether or not the word 'prisoners,' as men- 
tioned in section 109 A of chapter 127, includes inmates confined at a county 
jail awaiting trial." 

I answer your third question to the effect that the word "prisoners," 
as used in said section 109 A, does not include inmates of county jails 
awaiting trial. Notwithstanding this, an examination of the earlier stat- 
utes which are now compiled as said section 117 shows that the intent of 
the Legislature was to give you authority, by virtue of said section 117, 
to remove temporarily a person held in a jail awaiting trial, except for a 
capital crime, to a hospital, upon the certificate of the physician of such 
jail, irrespective of the terms of said section 109A. The word "prison," 
as used in said section 117, includes jails within the scope of its meaning. 
It is immaterial, so far as the authority given you is considered, that a 
hospital is located at the State Prison Colony. 



104 P.D. 12. 

Your fourth question is in effect as follows : — 

"Will you further advise me whether or not I am obliged, under sec- 
tion 22 of said chapter 127, to keep" the person awaiting trial when re- 
moved to the State Prison Hospital "segregated from all convicted 
prisoners." 

I am of the opinion that the provisions of section 22 were not intended 
by the Legislature to be applicable to persons temporarily placed in a 
hospital under the provisions of said section 117. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Water Supply Commission — Contract — Bid. 

June 21, 1937. 
Metropolitan District Water Supply Commission. 

Gentlemen : — You advise me that bids for the construction of ad- 
ministration buildings at Belchertown were pubhcly opened on June 10, 
1937, at eleven o'clock, which was the time set in the proposals for bids; 
that fourteen bids were received and opened ; that these bids were referred 
to the Chief Engineer to determine the competency, experience and finan- 
cial ability of the various bidders and to then report to the Commission; 
that the lowest bidder conferred with the Chief Engineer and informed 
him that it had made a mistake of $23,400 in its bid, which should have 
been S385,845 instead of $362,445, as submitted; that thereafter, at two 
o'clock in the afternoon of June 16, 1937, this bidder delivered a letter 
to the Commission in which it set forth its alleged error in the bid sub- 
mitted, sought permission to withdraw the bid and further stated: "We 
cannot see our way clear to do the work for the sum first named and 
would like to have you gentlemen consider us as the second lowest bidder. 
We leave it entirely to you. If you cannot do that, then we shall appre- 
ciate it very much if you will return our certified check." You also advise 
that no further action has been taken by you, and that the next lowest 
bid amounted to $371,996. 

Bids for the work were invited by the Commission by a printed paper 
which was captioned "Information for Bidders" and which was duly ad- 
vertised and supplied to those who submitted bids. This paper set forth 
the general nature of the work and called attention to certain provisions 
of the formal contract which the successful bidder would be required to 
execute. It also contained the following provisions: — 

"As a guaranty of the good faith of the bidder, each bid must be accom- 
panied by a certified check acceptable to the Commission and payable 
to the Commonwealth of Massachusetts, for Fifteen Thousand Dollars 
($15,000), such check to be returned to the bidder unless forfeited under 
the condition herein stipulated. This check should not be enclosed in the 
sealed envelope containing the bid, but should be delivered to the Secre- 
tary of the Commission, who will give a proper voucher for the deposit." 

It contained the further statement that upon the failure of the con- 
tractor to execute the contract within ten days after it has been notified 
that the contract has been awarded to it, "the Commission at its option 
may determine that the bidder has abandoned the proposed contract, 
and thereupon, if it so determines, the proposal and acceptance shall be 



P.D. 12. 105 

null and void, and the check accompanying the proposal shall be forfeited 
to the Commonwealth as liquidated damages." The Commission re- 
served the right to reject any or all bids and to determine the competency, 
experience and financial sufficiency of any bidder before making the award 
of the contract. 

The blank forms for the proposal were furnished to the bidders by the 
Commission, and one of these was used bj^ the lowest bidder in making 
his bid. The proposal provided that: — 

"If this proposal shall be accepted by the Metropolitan District Water 
Supply Commission, and the undersigned shall fail to execute the con- 
tract and the bond, . . . then the Commission at its option may deter- 
mine that the bidder has abandoned the said contract, and thereupon, if 
it so determines, the proposal and acceptance shall be null and void, and 
the certified check accompanying this proposal shall become the property 
of the Commonwealth of Massachusetts, ..." 

You request my opinion as to whether the lowest "bidder has any 
standing as such and whether the Commission should consider the amended 
figures as a bid." 

You are advised that the contractor has no right to withdraw its original 
bid or to amend its proposal by increasing the amount thereof by $23,400 
by reason of any alleged error in making up its bid. The mistake, if any 
there were, was not caused by the Commission. Neither was it a mutual 
mistake. The contractor cannot require the Commission to consider it 
the second lowest bidder. The company is bound bj^ its bid and the 
Commission is authorized, if the contractor is found to be competent, 
experienced and financially able, to award the contract to it; and upon 
the failure of the company to execute the contract, to forfeit its certified 
check for the benefit of the Commonwealth. The contractor is the lowest 
bidder, but whether it is the lowest acceptable bidder is for the Commis- 
sion to determine, just as it is within its province to fairly decide whether 
it is in the general public interest to reject any or all bids. You are em- 
powered by St. 1926, c. 375, and St. 1927, c. 321, to exercise reasonable 
judgment in obtaining for the Commonwealth the most advantageous 
contract for the proper construction of these buildings. The amount of 
the bid, the character of the bidder, its experience and abiHty to faithfully 
carry out the terms of the contract are important factors to be weighed 
and considered in the selection of the contractor to whom the award should 
be given. Larkin v. County Commissioners, 274 Mass. 437; Archamhault 
V. Mayor of Lowell, 278 Mass. 327. 

We simply say that the contractor is still the lowest bidder, and nothing 
occurring since the opening of the bids has changed that status. Wheaton 
Building & Lumber Co. v. Boston, 204 Mass. 218, Joh7i J. Bowes Co. v. 
Milton, 255 Mass. 228, Daddario v. Milford, Mass. Adv. Sh. (1936) 2219. 

Very truly j^ours, 

Paul A. Dever, Attorney General. 

Municipality — Private Water Company — Appropriations. 

June 23, 1937. 

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

Dear Sir : — You advise me that a private water company furnishes 
a portion of the town of Salisbury with water for domestic purposes and 



106 P.D. 12. 

that, in order to secure a supply of water for a part of the town to which 
the company has refused to extend its mains, the town, at its annual 
meeting in 1936, passed the following vote: — 

"Voted unanimous to raise and appropriate the sum of $15,000 to pur- 
chase materials and appurtenants necessary to extend the water system 
to Rings Island in conjunction with a WPA project, and that to meet the 
appropriation the Treasurer with the approval of the Selectmen be and 
hereby is authorized to borrow a sum not exceeding $15,000 and to issue 
bonds or serial notes of the town therefor, said bonds or notes to be pay- 
able in accordance with the provisions of chapter 44 of the General Laws, 
said bonds or notes to be amortized at the rate of $1000 annually so that 
the whole loan shall be paid in not more than fifteen years from date of 
issue of the first bond or note as recommended by the Finance Committee." 

You ask me: "Can the town of Salisbury lay water pipes connecting 
with those of a private water company in order that such private water 
company may supply certain portions of the town?" 

Towns are only authorized to raise and expend funds for the public 
purposes for which they were created, and their powers in this respect are 
wholly derived from our statutes. This principle of law is well settled 
and has been frequently enunciated in a long line of decisions, commencing 
with Stetson v. Kempton, 13 Mass. 272, and ending with MacRae v. Select- 
men of Concord, Mass. Adv. Sh. (1937) 157. 

The statute governing appropriations by towns, G. L. (Ter. Ed.) c. 40, 
§ 5, specifically enumerates the purposes for which towns may appropri- 
ate money, and then expressly includes "for all other necessary charges 
arising in such town." No mention is made therein relative to the acqui- 
sition or maintenance of a water system. Towns are authorized, however, 
by G. L. (Ter. Ed.) c. 40, § 38, to purchase existing water systems, "or 
contract therewith for a supply of water." Your communication indi- 
cates that the town is not to purchase the water and sell it to the con- 
sumers, but rather that the company is to use the new mains laid by the 
town and sell water directly to its customers. The portion of the statute 
last cited does not permit the expenditure of public funds principally in 
the interest of a private water company. If, however, the predominating 
motive of the town was to advance the common good which will result 
from the laying of the main, then the appropriation is legal, even though 
the company may thereby secure some incidental advantage. Opinion of 
the Justices, 182 Mass. 605; Wheelock v. Lowell, 196 Mass. 220. It should 
be left to the good sense and judgment of the citizens, expressed in a town 
meeting, and if they determine that a common benefit will be effected by 
the expenditure of money secured by a loan to the town, which they are 
willing to repay by taxation, then their action should be held valid, ex- 
cepting only in those instances where the object sought to be accomplished 
is not a public purpose sanctioned by law. Opinion of the Justices, 240 
Mass. 616, 618; Wright v. Mayor and City Council of Cambridge, 238 
Mass. 439. 

It has been the uniform practice for the General Court to authorize 
towns to establish and set up new water systems, and it has not been 
unusual for the Legislature to prescribe the conditions under which 
towns may purchase existing systems. See Revere Water Co. v. Winthrop, 
192 Mass. 455, 460. Upon the acceptance of such an enabling act, towns 
are authorized bj' G. L. (Ter. Ed.) c. 44, § 12, to appropriate the necessary 
funds to carry out the purposes of such special act. 



I 



P.D. 12. 107 

We assume that the provision in the vote for the payment of the notes 
or bonds in accordance with chapter 44 refers to the third clause of sec- 
tion 8, which provides for the incurring of a debt, outside the debt hmit, 
"for estabhshing or purchasing a system for supplying the inhabitants of 
a city or town with water, for the purchase of land for the protection of a 
water system, or for acquiring water rights." The extension of the mains, 
as set forth in the vote, does not come within the purview of this clause. 

The amount of the appropriation, however, is not stated to be beyond 
the debt limit of the town; and the facts necessitating the extension of 
a water supply to Rings Island, including the number of persons who 
would be thereby affected, the preservation of the public health, adequate 
fire protection, and the enhancement of the pubHc good, might well be 
sufficient to show that the expenditure of public funds in the extension 
of the water mains might be warranted as a necessary charge within G. L. 
(Ter. Ed.) c. 40, § 5. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Savings Bank Life Insurance — State Actuary — Tables of Mortality. 

June 28, 1937. 
JuDD Dewey, Esq., Deputy Commissioner of Savings Bank Life Insurance. 

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

"May the State Actuary adopt a table of mortality other than the 
American Experience Table, to be used for computing the legal reserve 
to be held under policies of insurance to be issued by savings-insurance 
banks operating under G. L. (Ter. Ed.) c. 178?" 

I answer your question in the affirmative, assuming that the approval 
of the Commissioner of Insurance has been given to the action of the 
State Actuary. 

Special specific provision is made by the Legislature, in G. L. (Ter. Ed.) 
c. 178, § 15, for the adoption by the State Actuarj^, in computing the legal 
reserve to be held under insurance and annuity contracts written under 
said chapter 178, to use a different table than "the American Experience 
Table" if deemed more suitable, to wit: — the State Actuary "shall also 
prepare or procure tables for computing the legal reserve to be held under 
insurance and annuity contracts, and for this purpose may, with the ap- 
proval of the commissioner of insurance, adopt a table of mortality which 
may be deemed more suitable than the American Experience Table for 
policies of insurance of the character and amounts to which the risks of 
the banks are limited; and shall in all other respects, except as otherwise 
provided, perform the duties of insurance actuary for all the savings and 
insurance banks . . ." 

This authority so specifically given to the State Actuary in connection 
with the computation of such legal reserves is not limited or controlled 
by earlier provisions of said section 15 concerning his authority to pre- 
pare tables of premium rates. Nor is it limited by the provisions of sec- 
tion 6 of said chapter 178, which provides that any savings and insurance 
bank, acting through its insurance department, "may make and issue 
policies upon the lives of persons and grant or sell annuities with all the 
rights, powers and privileges and subject to all the duties, liabilities and 



108 P.D. 12. 

restrictions in respect to the conduct of the business of life insurance con- 
ferred or imposed by general laws relating to domestic legal reserve life 
insurance companies, so far as the same are applicable and except as is 
otherwise provided herein," since with respect to such authority it "is 
otherwise provided," within the meaning of the exception set forth in the 
above quotation from said section 6; and the restriction imposed by the 
General Laws with relation to domestic legal reserve life insurance com- 
panies, requiring computation of the net value of outstanding policies 
upon the basis of the "American Experience Table" of mortality (G. L. 
[Ter. Ed.] c. 175, § 9, Second) is consequently not applicable. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Education — Advisory Board — Incompatible Positions. 

The position of dean of a State teachers' college is incompatible with that 
of a member of the Advisory Board to the Commissioner of Edu- 
cation. 

June 28, 1937. 
Hon. James G. Reardon, Commissioner of Education. 

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

"Can a member of the Advisory Board of the Department of Educa- 
tion accept a position as dean of one of the State teachers' colleges, and 
remain as a member of the Advisory Board to the Commissioner?" 

The "Department of Education" is defined by G. L. (Ter. Ed.) c. 15, 
§ 1, as follows: — 

"There shall be a department of education, in this chapter called the 
department, which shall be under the supervision and control of a com- 
missioner of education, in this chapter called the commissioner, and an 
advisory board of education of six members, in sections one to six, inclu- 
sive, called the board, of whom at least two shall be women and one shall 
be a school teacher of the commonwealth." 

In G. L. (Ter. Ed.) c. 73, § 1, as amended, it is provided that teachers' 
colleges shall be subject to the "general management" of the "Depart- 
ment of Education." 

Said section 1 reads : — 

"The department of education, in this chapter called the department, 
shall have general management of the state teachers' colleges at Barn- 
stable, Bridgewater, Fitchburg, Framingham, Lowell, North Adams, Salem, 
Westfield and Worcester, and the Massachusetts school of art at Boston, 
wherever said colleges may be hereafter located, and of any other state 
teachers' colleges hereafter established, and of boarding houses connected 
therewith, and may direct the expenditure of money appropriated for 
their maintenance." 

You inform me that the practice is for the Commissioner of Education 
himself to appoint the deans of teachers' colleges and that their salaries 
are fixed by virtue of the classifications and specifications established by 
the Division of Personnel and Standardization, under G. L. (Ter. Ed.) 
c. 30, § 46. Nevertheless, inasmuch as the general management of such 



P.D. 12. 109 

colleges is vested in the Department of Education, of which the Advisory 
Board is an integral part, it would seem that the position of dean of 
such a college, which falls under the general power of management vested 
in the Department of Education, is incompatible with that of the office 
of a member of the Advisory Board, which is a part of the Department of 
Education. It would follow that acceptance of the position of such a 
dean by a member of the said Advisory Board would vacate the office of 
such member. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Registrar of Motor Vehicles — Revocation of Licenses — Amending Statute. 

July 2, 1937. 
Hon. William F. Callahan, Commissioner of Public Works. 

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

"Your opinion is respectfully requested concerning the following matter: 

Under the provisions of St. 1937, c. 117, section 24 of G. L. (Ter. Ed.) 
c. 90, was amended. 

Prior to the passage of chapter 117, under the provisions contained 
in section 24 (2) (a), (6) and (c), the Registrar of Motor Vehicles was 
required, upon a conviction for operating so that the lives or safety of the 
public might be endangered, to revoke immediately the license, and there 
was no discretionary power to restore it until after sixty days from the 
date of an original first conviction and one year from the date of a second 
conviction. St. 1937, c. 117, amended this by giving the Registrar dis- 
cretionary authority to rescind after a revocation, within the period of 
sixty days. 

St. 1937, c. 117, became effective on June 18, 1937. 

The question arises as to whether or not the Registrar of Motor Ve- 
hicles has discretionary power in cases where there was a conviction 
before said date, or whether his discretionary power is limited to con- 
victions that happen after June 18, 1937." 

I answer your question to the effect that the discretionary power to 
rescind a revocation of a license, given to the Registrar by the amend- 
ment of G. L. (Ter. Ed.) c. 90, § 24 (2) (c), is vested in him as of the effec- 
tive date of the amending act, and may be exercised by him thereafter to 
rescind revocations which he has made as the result of past convictions as 
well as those which may occur in the future. 

To so hold is not to give a retrospective force to the legislative enact- 
ment; for, although convictions and revocations may have occurred in 
the past, the present exercise of the discretionary power vested in the 
Registrar by the amended statute does not operate as of a time prior to 
the enactment of the law, but in all respects in effect and in time as of a 
date subsequent to such enactment. Mulvey v. Boston, 197 Mass. 178. 

Very truly yours, 

Paul A. Dever, Attorney General. 



110 P.D. 12. 

Municipalities — Appropriations — Reimbursement. 

A municipality is without authority to borrow money for the purpose of 
reimbursing its treasury for money already expended. 

July 19, 1937. 
Emergency Finance Board. 

I am in receipt from you of the following communication : — 

"There have been submitted to the Emergency Finance Board the 
following votes of the city of Somerville which authorize borrowing and 
the appropriation of at least a portion of the borrowed funds. The ap- 
proval of the Emergency Finance Board is required before expenditures 
can be made therefrom. 

The Board is desirous of having your opinion as to whether the follow- 
ing appropriations of loan moneys are in accordance with the Municipal 
Finance Act as set forth in G. L. (Ter. Ed.) c. 44, §§7 and 20; and whether 
the Board, if it should so vote, may approve any or all of the appropria- 
tions called for : — 

A. 

Ordered: The City Treasurer, with the approval of the Mayor, is hereby 
authorized to issue not exceeding S100,000, in bonds of the city, under 
General Laws, chapter 44, section 8 (7), for the extension of water mains 
and for water department equipment, such bonds to be payable within 
five years from their date. The City Auditor and City Treasurer are 
hereby authorized to use $20,000 of the above amount borrowed as a 
reimbursement for the amount already spent for above-mentioned pur- 
poses. 

B. 

Ordered: The City Treasurer, with the approval of the Mayor, is hereby 
authorized to issue not exceeding $140,000 in bonds of the city, under 
General Laws, chapter 44, section 7 (1), as amended, for the construction 
of sewers for sanitary or surface drainage purposes, such bonds to be pay- 
able within five years from their date, and the sum of $29,000 is hereby 
appropriated in this year's tax levy in accordance with section 7 of chapter 
44 of the General Laws. The City Auditor and City Treasurer are hereby 
authorized to use $30,000 of the above amount borrowed as a reimburse- 
ment for the amount already spent for the above-mentioned purposes. 

C. 

Ordered: The City Treasurer, with the approval of the Mayor, is hereby 
authorized to issue not exceeding Eighty Thousand ($80,000) dollars 
in bonds of the city, under General Laws, chapter 44, section 7 (6), as 
amended, for macadam pavement or other road material under speci- 
fications approved by the department of pubhc works, such bonds to be 
payable within five years from their date. The sum of Twenty-nine 
Thousand ($29,000) dollars is hereby appropriated in this year's tax levy 
in accordance with section 7 of chapter 44 of the General Laws. The 
City Auditor and City Treasurer are hereby authorized to use Twenty- 
seven Thousand ($27,000) dollars of the above amount borrowed as a 
reimbursement for the amount already spent for the above-mentioned 
purpose. 



RD. 12. Ill 

It is respectfully requested that an opinion be rendered." 

Each of the foregoing orders for an issue of bonds contains a sentence 
in effect appropriating a part of the proceeds for reimbursement to the 
city of money previously spent for the same purpose as that for which 
bonds are to be issued under the terms of the order. 

It was said in an opinion of one of my predecessors in office (IV Op. 
Atty. Gen. 261), with which I agree, that a municipality was without 
authority to borrow money or to issue bonds for the purpose of reim- 
bursing its treasury for money already expended. Reimbursement was 
not, at the time when said opinion was written, nor is it now, one of 
the purposes for which a municipality is authorized to incur indebted- 
ness. 

The same general principle was enunciated by the Supreme Judicial 
Court in Chapin v. Lincoln, 217 Mass. 336. 

The orders which you have shown me are similar to that considered in 
said opinion of the former Attorney General and similar in purpose to 
that before the court in Chapin v. Lincoln, supra, except that in the 
present instance the purpose of the order is to appropriate only a part of 
the contemplated loan to reimbursement, whereas in the ones previously 
considered the purpose of borrowing was to apply the entire proceeds of 
the loan to reimbursement. 

I am of the opinion, however, that this difference between the instant 
orders and those previously considered does not make the present pro- 
posed loans vaUd. The debt now sought to be contracted is a debt for 
borrowed money. Since the purpose of the order is to obtain money for 
a use for which borrowing is not permitted, the purpose of the loan as a 
whole cannot fairly be said to be a lawful one. A bond issue based upon 
the exercise of such unwarranted authority cannot be said to be good in 
part and bad in part. In all fairness to investors it must be valid and 
authorized in its entirety. 

Statutes of the character of those now under consideration are to be 
construed strictly, both for the protection of municipahties from the 
creation of improvident debts and for the protection of investors in munici- 
pal securities. Agawam National Bank v. South Hadley, 128 Mass. 503; 
I Op. Atty. Gen. 24. 

It follows, from the foregoing considerations, that the appropriations 
contained in the said orders should not be approved by your Board. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Racing Commission — Dog Racing — Licenses — Agricultural Fair. 

A racing meeting may be held in connection with an agricultural fair, 
although the racing track and the fair grounds are separated, if both 
are part of the same enterprise, for the same purpose, and under the 
same management. 

July 19, 1937. 

Hon. Charles F. Connors, Chairman, State Racing Commission. 

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

"The State Racing Commission is in receipt of a tentative application 
from the Plymouth County Agricultural Society, Inc., of Bridgewater, 



112 P.D. 12. 

requesting the privilege, as a State and county fair, to run dog racing as 
provided by G. L. (Ter. Ed.) c. 128A. 

This society is an organization for the promotion and extension of agri- 
culture, operating under the direction of the Department of Agriculture 
of the Commonwealth of Massachusetts, and is receiving State grants in 
connection with its fair. 

The grounds of the Plymouth County Agricultural Society, Inc. are at 
Bridgewater, in Plymouth County. The society requests the right to have 
dog racing at the same time that its fair is being held, with the proviso 
that the dog racing is to be held on the grounds of the Bristol County 
Kennel Club, Wilhams Street, Dighton (Bristol County), for a meeting 
of six days, from August 16 to August 21, 1937, both dates inclusive. 

Has the Commission the right, under the law, to grant a license to the 
Plymouth County Agricultural Society, Inc., of Bridgewater (Plymouth 
County), to run dog racing, in connection with its fair, on the grounds of 
the Bristol County Kennel Club at Dighton (Bristol County)?" 

G. L. (Ter. Ed.) c. 128A, as amended, makes provision, by sections 
3 and 4, for the issuance of licenses for dog racing meetings to be held 
"in connection with a state or county fair, or any exhibition for the en- 
couragement or extension of agriculture," at a smaller fee than that 
charged for a license to conduct other dog racing meetings. Before such 
a license for a dog racing meeting in connection with an exhibition for the 
encouragement or extension of agriculture may be issued, the applicant 
is specifically required, by the provisions of said section 3, to satisfy your 
Commission "that the main purpose of such fair or exhibition is the en- 
couragement or extension of agriculture and that the same constitutes a 
bona fide exhibition of that character." Also, by implication from the 
context of said sections 3 and 4, it is apparent that the applicant must 
also satisfy your Commission that the proposed dog racing meeting is 
to be held "in connection with" such a fair or exhibition. Whether it is 
to be so held is a question of fact for j^our determination, upon the facts 
relative to each application to you for a license of this particular character. 

It cannot be said as a matter of law that the words "in connection with," 
as used in said sections 3 and 4, mean that there must be a physical con- 
nection between the track where a dog racing meeting is conducted and 
the buildings or grounds in which the fair or exhibition is held. A racing 
meeting may be held, within the meaning of the words as used in said 
sections, "in connection with" a fair or exhibition, even though the track 
and the fair grounds are widely separated, if you find as a matter of fact 
that the dog racing meeting is conducted not as a separate enterprise but 
so directly as a part of the fair or exhibition, considered as an enterprise 
or undertaking, as to be for the same purpose, under the same general 
management and reasonably calculated to promote the success of the fair 
or exhibition. It cannot be said as a matter of law that any particular 
distance or the intervention of any specific boundary lines of counties or 
other political subdivisions between the fair grounds and the dog racing 
track would render it impossible to find as a matter of fact that such a 
racing meeting was not held "in connection with" a particular fair or 
exhibition, although such subsidiary facts relative to distance and situa- 
tion of fair grounds and track are to be considered by you in making your 
final determination of fact in any particular case as to whether a dog 
racing meeting is to be held "in connection with" a fair or exhibition. 



P.D. 12. 113 

Assuming that all applicable provisions of the statute have been satis- 
fied by the applicant to whom you refer in your letter, upon the facts 
which you have set forth therein you have the right to grant the license 
in question. 

Very truly 3^ours, 

Paul A, Dever, Attorney General. 

Old Age Assistance — Inmates of Incorporated Homes. 

Persons otherwise eligible to old age assistance, who are inmates of incor- 
porated homes of a charitable character, are entitled to such assist- 
ance. 

July 21, 1937. 

Hon. Walter V. McCarthy, Commissioner of Public Welfare. 
Dear Sir : — You have advised me as follows : — 

"Certain relief officials connected with boards of public welfare in the 
Commonwealth are averse to granting old age assistance to applicants 
otherwise eligible who are inmates in certain boarding houses. 

It is contended that incorporated homes are exempt from taxation by 
virtue of their charter (charitable), and that this exemption can be con- 
sidered in fact the same as a contribution of public funds in favor of the 
incorporated homes, and on this reasoning they cannot be considered in 
the group of homes which are 'not supported in whole or in part by pub- 
He funds.'" 

You have, in effect, asked my opinion as to the correctness of the con- 
tention referred to in the above-quoted portions of your communication. 

G. L. (Ter. Ed.) c. 118A, § 1, as amended by St. 1937, c. 440, to which 
3^ou have called m}'- attention, governs the situation. 

The fact that persons otherwise eligible to old age assistance are in- 
mates of incorporated homes which are exempt from taxation by virtue 
of their charitable character, under their respective charters, does not 
warrant the refusal of such assistance to such persons. The mere fact 
that such persons are living in incorporated homes which are exempt from 
taxation does not make them inmates of a home or institution "supported 
in whole or in part by public funds," as the words are used in said chapter 
118A. Such persons are entitled to receive old age assistance irrespective 
of the fact that they live in such homes, other factors of eligibility being 
present. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Retirement System — Compensation — Deductions. 

July 26, 1937. 
Hon. Francis J. DeCelles, Commissioner of Insurance. 

Dear Sir : — You have asked my opinion as to the meaning of the 
words "regular compensation," in St. 1936, c. 318, § 29 (2) (c), as de- 
scribing the basic salary for employees upon which a pension is to be 
figured. 



114 P.D. 12. 

You advise me that you are asking- my opinion for the benefit of "the 
actuary of this department," who advises the retirement boards men- 
tioned in said chapter 318 in regard to technical matters. 

In your letter you have quoted the definition of "annual compensation" 
given in section 26 of the said chapter, and have correctly stated the im- 
port of said section 29, which provides that prior service be credited on 
the basis of accumulated deductions of ten per cent of the employee's 
average annual rate of regular compensation for a five-year period. 

Your specific query relates to the manner in which deductions from the 
employees' salaries made during the depression years should be treated. 
You say: "In some units employees were asked to make voluntary con- 
tributions permitting a portion of their salary to be allocated to the city 
or town treasury for whatever purpose it was needed. In other cities 
and towns a compulsory deduction was in effect which gave the employee 
no alternative. In still other cities and towns a combination of both 
methods was employed for different years." 

An opinion of one of my predecessors in office, to which you refer, 
given March 11, 1932, to the then Commissioner of Education (Attorney 
General's Report, 1932, p. 53), accurately determined the meaning of the 
words "the amount of the salary due," as those words were used in G. L. 
(Ter. Ed.) c. 32, § 12 (5), with relation to the deductions from teachers' 
salaries. The principles laid down in said opinion, with relation to the 
first two questions which were answered therein by the then Attorney 
General, are applicable to the instant interpretation. No sum which was 
paid from an employee's salary to a city or town by or on behalf of the 
employee, with his consent, should be taken as reducing the annual com- 
pensation of such employee in any year. No deduction made by a town 
from the amount of compensation due an employee in any given year, 
whether with the express consent of the employee or by any mode of 
compulsion, should be treated as lowering the annual compensation of 
that year; nor, likewise, should any contribution effected both by com- 
pulsion and by voluntary action be treated as lowering the annual com- 
pensation for any year. 

In the said opinion of the former Attorney General he stated that, if 
a teacher by a voluntary contract agreed to work for a designated por- 
tion of the year without compensation, it could not be said that for the 
period covered by such contract there was any "salary due" such teacher 
for such period, under the specific wording of said G. L. (Ter. Ed.) c. 32, 
§ 12 (5). So that under such circumstances the annual salary "due" 
such employee would be reduced by the amount otherwise payable for 
the designated period. But as the words "annual rate of regular compen- 
sation" are used in said section 29 (2) (c) of said chapter 318 and defined 
as "the annual compensation lawfully determined for the individual serv- 
ice of the employee," in section 26 of said chapter 318, these words were 
intended by the Legislature to denote the annual compensation as origi- 
nally determined by law for an employee without any decrease through 
contractual arrangement. There is an obvious difference between the 
words "annual compensation lawfully determined for the individual serv- 
ice of the employee," as used in said section 26, and the words "salary 
due," as used in G. L. (Ter. Ed.) c. 32, § 12 (5), construed by the former 
Attorney General in his opinion. 

I therefore advise you, for such assistance as it may render your depart- 
ment in discharging services to the retirement boards, that "regular com- 
pensation," as used in chapter 318, should be considered to mean the basic 



P.D. 12. 115 

salary originally determined by lawful authority for any particular em- 
ployee and not a temporarily reduced salary actually paid or due him for 
any given year or years. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Lord's Day — Licenses — Admission — Public Entertainment. 

July 27, 1937. 
Col. Paul G. Kirk, Commissioner of Public Safety. 

Dear Sir: — You request an opinion as to the application of G. L. 
(Ter. Ed.) c. 136, § 4, "to concerts consisting of music and entertainment 
provided to patrons of hotels, restaurants, clubs and all other establish- 
ments where food or drink is sold on the Lord's Day." 

The above-mentioned section provides : — 

"Except as provided in section one hundred and five of chapter one 
hundred and forty-nine, the mayor of a city or the selectmen of a town 
may, upon written application describing the proposed entertainment, 
grant, upon such terms or conditions as they may prescribe, a license to 
hold on the Lord's day a public entertainment, in keeping with the char- 
acter of the day and not inconsistent with its due observance, to which 
admission is to be obtained upon payment of money or other valuable 
consideration; provided, that no such license shall be granted to have 
effect before one o'clock in the afternoon, nor shall it have effect unless the 
proposed entertainment shall, upon application accompanied by a fee of 
two dollars, have been approved in writing by the commissioner of public 
safety as being in keeping with the character of the day and not incon- 
sistent with its due observance. Any such license may, after notice and 
a hearing given by the mayor or selectmen issuing the same, or by said 
commissioner, be suspended, revoked or annulled by the officer or board 
giving the hearing." 

The exception (G. L. [Ter. Ed.] c. 149, § 105) referred to in the quoted 
section, prohibits, in general, the granting of licenses for theatrical perform- 
ances or public shows in which children under fifteen years of age are 
employed. 

The power conferred by the instant section upon local authorities rela- 
tive to the licensing of entertainments therein enumerated is not perti- 
nent to your inquiry, which, by a long established policy of this depart- 
ment, must necessarily be confined to advising State officers in regard to 
the performance of a present duty concerning which they are required 
to make a decision. I Op. Atty. Gen. 562; II ibid., 100. 

The power granted to you is simply one of approval, if you find that 
the proposed entertainment is not contrary to the spirit and observance 
of the Lord's Day. If no license is granted by the local licensing authori- 
ties, then, of course, you have no duty to perform. If a license is granted 
by them, then you are required to exercise your judgment and discretion 
in ascertaining the nature of the entertainment, the hours during which 
it is to be held, the place where it is to be given, the number and kind of 
people who will probably attend, and all other material teircumstances, 
in order to decide whether or not the proposed entertainment is consistent 
with the character and due observance of the Lord's Day. If you so 
find, of course you would be justified in granting your approval. 



116 P.D. 12. 

The functions of an officer having the power of approval have been 
settled frequently in this Commonwealth. Simpson v. Marlborough, 236 
Mass. 210; Bay State St. Ry. Co. v. Woburn, 232 Mass. 201; Leroy v. 
Worcester St. Ry. Co., 287 Mass. 1, 7, 8. 

The public entertainment which is to be licensed is one "to which 
admission is to be obtained upon the payment of money or other valuable 
consideration." The payment of an admission fee is, therefore, descrip- 
tive of the entertainment included within the sweep of the section. Usu- 
ally, admission fees are paid at the entrance and are given in consideration 
of being permitted to enter a place in which entertainment is to be fur- 
nished. Generally speaking, one may enter a hotel, restaurant, club or 
similar establishment where food or drink is sold on the Lord's Day 
without paying any admission fee. 

The old principle of the common law that an innkeeper "does not sell 
but utters his provision" (Parker v. Flint, 12 Mod. 254) has been greatly 
restricted, if not rejected, because it is now the settled law of this Com- 
monwealth that a guest is the purchaser of the food or drink supplied to 
him. Friend v. Childs Dining Hall Co., 231 Mass. 65; Schuler v. The Union 
News Co., Mass. Adv. Sh. (1936) 1273. The price at which one purchases 
food or drink in such an establishment is the purchase price of the articles 
furnished, but this price must be fixed in reference to various items of ex- 
pense incurred by the owner in setting up and maintaining his place of 
business or for music or entertainment furnished, which must be paid 
out of the proceeds of the business. They are a kind of service furnished 
to patrons for which payment is included in the purchase price paid for 
the commodities furnished. 

In a general way, the same situation is true of a consumer purchasing 
goods in a department store. The price which he pays must necessarily 
include various items of overhead in order to permit the proprietor to 
continue in business. No one will claim that when purchasing goods in 
a department store anything is paid for admission. 

The statute in question is limited to entertainments for which an ad- 
mission is charged. It is true that the admission price need not be paid 
in money, but must, at least, be paid in a valuable consideration. In other 
words, unless something is charged for admission the entertainment does 
not come within the purview of the statute. Commomvealth v. Wall, Mass. 
Adv. Sh. (1936) 1473. A cover charge, which I assume is a minimum 
charge to be made to customers, and which is collected in some of the 
establishments referred to in your communication, may not be essentially 
different from a service charge, so called, which is made by certain public 
utility companies. 

From the facts stated in your communication, I am not satisfied that the 
entertainments referred to fit the statutory description, because I am not 
convinced that any admission, either directly or indirectly, is paid on 
account of being permitted to enter the establishment where such enter- 
tainments are held. 

I am therefore of the opinion that under such circumstances the stat- 
ute is inapplicable, and, consequently, you are not required to determine 
whether or not you will give or withhold your approval of any action which 
the licensing authorities may take relative to purporting to grant a license 
for the holding of such entertainments. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 117 

Alcoholic Beverages — Licenses — Applicants — Right of Appeal. 

July 30, 1937. 

Alcoholic Beverages Control Commission. 

Gentlemen: — You ask my opinion as follows: — 

"Will you kindl}'- advise us as to whether or not, in 3-our opinion, under 
the provisions of section 67 of the act, any applicant for a license under 
section 14 or 30A 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 limited by section 16B, or any person who is 
aggrieved by the action of such authorities in suspending, cancelling, re- 
voking or declaring forfeited such a license, may appeal therefrom to this 
Commission." 

The Liquor Control Act of this Commonwealth, G. L. (Ter. Ed.) c. 138, 
as originallj' appearing in St. 1933, c. 376, § 2, and as subsequently 
amended, was, as is obvious from its scope and context, intended by the 
Genera] Court to create a comprehensive scheme for the State-wide 
administration of the liquor traffic, with provisions for licensing by local 
boards, but with the final control of the general subject vested in the 
Alcoholic Beverages Control Commission of the Commonwealth, to which 
those aggrieved by the actions of local authorities might seek relief by 
direct appeal. It is apparent from the language employed in framing 
the said chapter that the Legislature intended to make such procedure by 
appeal readily accessible to all feehng themselves aggrieved by the issu- 
ance of, or refusal to issue, licenses by local authorities, and to clothe the 
Commission with broad powers to carry into effect those findings which 
it made in the exercise of its appellate jurisdiction. 

Section 67 of said chapter 138, as amended, is as follows: — 

"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 limited by section sixteen B, or 
any person who is aggrieved by the action of such authorities in suspend- 
ing, cancelHng, revoking or declaring forfeited the same, may appeal 
therefrom to the commission within five days following notice of such 
action or following 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. Upon the petition of twenty- 
five persons who are taxpayers of the city or town in which a license has 
been granted by such authorities or who are registered voters in the voting 
precinct or district wherein the licensed premises are situated, or upon 
its own initiative, the commission may investigate the granting of such 
a license or the conduct of the business being done thereunder and may, 
after a hearing, modify, suspend, revoke or cancel such license if, in its 
opinion, circumstances warrant. 

If the local licensing authorities fail to issue a license or to perform an}^ 
other act when lawfully ordered so to do by the commission upon appeal 
or otherwise, within such time as it may prescribe, the commission may 
itself issue such license or perform such act, with the same force and 
effect as if issued or performed by the local licensing authorities." 



118 P.D. 12. 

The words "any applicant for a license," as used in said section 67, 
were intended by the Legislature to embrace every one who is in fact an 
applicant for any license which may be granted under the provisions of 
this statute. The import of such words cannot properly be limited by 
implication from any particular part of the chapter so as to include only 
some particular class or classes of applicants for licenses governed by the 
chapter. There are no words in the chapter which specifically make such 
limitation. The fact that as to licenses granted under sections 12 and 15 
of the statute their prior approval by the Commission is a prerequisite to 
their issuance is entirely immaterial in considering the inclusiveness of 
the right of appeal accorded to "any applicant for a license" by said 
chapter 67. The scope of the appellate jurisdiction of the Commission 
possesses a sweep as wide as the provisions of the statute itself and com- 
prehends all applicants for licenses to sell alcoholic beverages, whether 
mentioned in sections 12 and 15 or in 14 and 30A. Allusion to the terms 
of section 16B in said section 67 does not withdraw the protection of the 
Commission's appellate jurisdiction from applicants for licenses as to 
which section 16B is not applicable, but merely by particular mention 
includes a failure of compliance with said section 16B as a particular 
cause for appeal, additional to the refusal to grant a license, first set forth 
as a general cause of appeal open to any applicant for a license under the 
provisions of the said chapter. 

In my opinion, it is clear that any of the applicants or other persons 
described in your question have the right of appeal to your Commission 
from a refusal to grant an application for a license under section 14 or 
30A, and that any person aggrieved by the action of local authorities in 
suspending, cancelling, revoking or declaring forfeited such a license has 
likewise an appeal to the Commission. 

Very truly j^ours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Dmggisfs License — Local Regulations. 

July 30, 1937. 

Alcoholic Beverages Control Commission. 

Gentlemen : — You have laid before me a copy of a form of license 
which you advise me is used by the Boston licensing board for licenses to 
registered pharmacists, under G. L. (Ter. Ed.) c. 138, § 30A, entitled "A 
Druggist License to sell Alcoholic Beverages for Medicinal, Mechanical or 
Chemical Purposes without a Physician's Prescription." You have called 
my attention to certain conditions and regulations contained therein which 
relate to the sale of "alcohol," and have asked my opinion as follows: — 

"We respectfully request your opinion as to whether or not the Bostou 
licensing board may impose these conditions, or either of them; and 
whether or not the license may be legally suspended or revoked for a 
violation of any or all of these conditions." 

I answer your inquiry to the effect that the Boston licensing board may 
not, as a matter of law, impose the conditions and regulations relative to- 
"alcohol" which appear upon the said druggist's license to sell alcohohc 
beverages, etc., and may not lawfully suspend or revoke said license for 
a violation of said conditions and regulations relative to "alcohol." 



P.D. 12. 119 

Under the provisions of the Liquor Control Act, G. L. (Ter. Ed.) c. 138, 
as appearing in St. 1933, e. 376, § 2, as amended, a registered pliarmacist 
is not required to have a Ucense to sell "alcohol." 

Section 29 of said chapter 138 reads as follows: — 

"A registered pharmacist in a city or town who holds a certificate of 
fitness under the following section, having complied with all provisions of 
law relative to the practice of pharmacy irrespective of the vote of the 
city or town under section eleven, may use alcohol for the manufacture 
of United States pharmacopoeia or national formulary preparations and 
all medicinal preparations unfit for beverage purposes, and may sell alco- 
hol, and, upon the ^prescription of a registered physician, (1) wines, (2) 
malt beverages, and (3) other alcoholic beverages. Each of the three 
foregoing classes shall be sold only on separate prescriptions and in quan- 
tity not exceeding one gallon of wines, one gallon of malt beverages and 
one quart of other alcoholic beverages. Every such prescription shall be 
dated and signed by the physician and shall contain the name of the per- 
son prescribed for. 

All such prescriptions shall be retained and kept on file in a separate 
book by the pharmacist selling the same and shall not be refilled. Such 
prescription book shall be open at all times to inspection of the board of 
registration in pharmacy, licensing authorities and their agents and police 
officers. Nothing in this chapter shall disqualify a registered pharmacist 
from being licensed under section fifteen, provided that he sells no cooked 
food to be consumed on the premises; but a license issued to a registered 
pharmacist under said section shall not be included in computing the 
number of licenses that may be granted in any city or town as provided 
in section seventeen. 

Sales of alcoholic beverages hereunder shall be made only in the original 
sealed packages, and such beverages shall not be permitted to be drunk 
on the premises." 

A registered pharmacist, who, I assume, is indicated by the word 
"druggist" in the license form under consideration, is required to have a 
license to sell "alcoholic beverages" without a physician's prescription in 
a municipality wherein licenses to sell all alcoholic beverages are authorized. 

Section 30A of said chapter 138 reads as follows : — 

"A registered pharmacist in a city or town wherein the granting of 
licenses to sell all alcoholic beverages is authorized may be licensed by 
the local licensing authorities to sell alcoholic beverages for medicinal, 
mechanical or chemical purposes without a physician's prescription sub- 
ject to the limitations contained in section thirty-three, the said sales to 
be recorded in the manner prescribed in section thirty E. Sales of alco- 
holic beverages hereunder shall be made only in the original sealed pack- 
ages and such beverages shall not be permitted to be drunk on the premises. 
Sales of such beverages by a licensee hereunder shall be permitted only 
during such hours as sales thereof may be made by a licensee under sec- 
tion fifteen. The fee for a license under this section shall be not less than 
fifty nor more than three hundred dollars." 

The Boston licensing board may make the license to sell "alcoholic 
beverages," described in said section 30 A, subject to reasonable condi- 
tions and regulations concerning its exercise, which will have the force 
of penal statutes, violation of which is punishable by fine and imprison- 
ment under section 62 of said chapter 138. 



120 P.D. 12. 

The said board may not, however, make conditions and regulations 
which are not reasonable, and may not, in the guise of regulating the sale 
of alcoholic beverages as to which a license relates, impose upon the Hcensee 
conditions and regulations unrelated to the sale of alcoholic beverages but 
pertaining to the sale of "alcohol" for which no license is required by 
statute. Nor may the said board, in the form of regulations and condi- 
tions purporting to control a license to sell alcoholic beverages, impose 
rules and prohibitions upon the use and sale of an entirely different com- 
modity, such as "alcohol," the use and sale of which have been regulated 
by legislative enactments. The entire subject of sales of "alcohol" by 
registered pharmacists has been dealt with by the General Court in said 
chapter 138, more particularly in section 29, and it may not be further 
regulated or controlled, under whatever pretext, by a local licensing au- 
thority. Privileges granted by virtue of a statute cannot be restricted by 
a local regulation unless the power to do so is specifically delegated to 
local authorities. Burke v. Holyoke, 219 Mass. 219; Greene v. Fitchhurg, 
219 Mass. 121; Cawley v. Northern Waste Co., 239 Mass. 540. 

Rules and regulations of a subordinate board beyond the sweep of an 
enabling act have no force or vahdity. Attorney General's Report, 1935, 
p. 66. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Education — Employees — Receipt of Two Salaries. 

Aug. 11, 1937. 
Hon. James G. Reardon, Commissioner of Education. 

Dear Sir: — You advise me that your department has retained dur- 
ing the six weeks' term of summer school held at two of the State teachers' 
colleges the services of two directors, two matrons and one nurse, and that 
these five persons are regularly employed in their respective capacities 
during the usual school year at one or the other of these two institu- 
tions. You inform me that the Comptroller and the Division of Adminis- 
tration and Finance have questioned the validity of the pajmient of com- 
pensation to these five persons for services rendered during the summer 
courses, and you request my opinion on the matter. 

Each of these individuals receives a yearly salary from the Common- 
wealth for the performance during the calendar year of all the duties 
pertaining to their positions or employment, although they are actually 
so engaged only during the school year. The contracts of each are entire, 
even though full consideration is to be furnished in less than the calendar 
year. Donlan v. Boston, 223 Mass. 285. 

Their employment, however, during the summer schedule requires the 
performance of services similar in all respects to those rendered in the 
same institutions during the regular sessions. Each of these persons was 
engaged in his usual occupation both during the regular and the summer 
sessions of the institutions in question. Although they performed extra 
services which, if the summer schools were not in session, they would not 
have rendered, yet the rendition of services during the summer course 
was a continuance of the performance of their usual occupation. 

It was previously decided by one of my predecessors that the State 
Board of Education could employ normal school teachers for service in 



P.D. 12. 121 

teachers' institutes, and that called for special services for which an 
allowance, as distinguished from their regular salary, could be made. 
II Op. Atty. Gen. 21. That opinion is sound. It is, however, inapplicable 
to the present situation because the work done in connection with the 
teachers' institute was outside of that which they contracted to perform 
during the school year as members of the teaching staff of the normal 
school. It was special work. See V Op. Atty. Gen. 697. ^ 

The statute, G. L. (Ter. Ed.) c. 30, § 21, inhibits one from receiving at 
the same time more than one salary from the treasury of the Commonwealth. 
The salaries of these five individuals in question are fixed in accordance 
with G. L. (Ter. Ed.) c. 30, § 45 et seq., and cannot be increased by al- 
lotting to them extra work in their usual occupation, at their customary 
place of employment, during the period in which they were under con- 
tract with the Commonwealth. 

The situation is identical with that pertaining to a case in which pro- 
bation officers attempted to secure additional compensation for services 
rendered by one while another was on a vacation. The original assign- 
ment of each plaintiff to do a special part of the probation work does not 
make two distinct offices. "The Legislature has delegated to the judge or 
judges of the court, subject to the approval of the county commissioners, 
power to fix the salary of a probation officer. When so fixed, it measures 
his full compensation for performing the duties of his office." O'Brien v. 
Boston, 266 Mass. 156, 159. 

I am therefore of the opinion that payment to the five persons in 
question for the rendition of extra services in the summer schools would 
not be valid. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Department of Mental Diseases — Municipal Permit — Fee. 

Aug. 11, 1937. 

Mr. William I. Rose, Business Agent, Department of Mental Diseases. 

Dear Sir: — You ask if I will inform you "whether an institution 
under this department should pay the cost of a permit to the town for 
transporting offal through the streets, in accordance with G. L. (Ter. 
Ed.) c. Ill, § 31A." 

I wish to advise you that if the offal is being transported by a repre- 
sentative or agent of the Commonwealth the latter is not required to 
pay any license fee to the local licensing authorities, because, in the first 
place, the person described within the statute referred to does not include 
the Commonwealth, and, in the next place, the statute does not contain 
anj^ express provision that it was the intent of the Legislature to require 
the Commonwealth to pay a tax in the performance of one of its govern- 
mental functions. 

Very truly yours, 

Paul A. Dever, Attorney General. 



122 P.D. 12. 

Department of Public Works — Shade Trees — Care and Custody — State 

Highway. 

Aug. 11, 1937. 

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

Dear Sir : — You advise me that one William Edson has applied for a 
permit to remove six maple trees on the State highway in West Brookfield. 
You also call my attention to other trees located upon the property of 
Mr. Edson, which you advise me he intends to remove. You inquire as 
to what authority your department has in reference to both the trees 
upon the highway and those on the premises of a private individual. 

The Department of Public Works is entrusted with the care and cus- 
tody of all trees and shrubs located upon the State highways, and no 
person may trim, cut or remove any such trees, even though he may be 
the owner of the trees, without a permit from your department. 

In reference to the trees located entirely upon private property, even 
though some portion thereof may project over the side line of a State 
highway, your department has no authority to prohibit the owner from 
removing such trees. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Chief of Police — Town — Acceptance of Act. 

Aug. 13, 1937. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You advise me that on March 24, 1937, G. L. (Ter. Ed.) 
c. 31, § 49, placing the chief of police of the town of Webster under civil 
service, was accepted by the town, and that thereafter, at a meeting on 
July 6, 1937, section 48 of the same chapter was likewise accepted. You 
inquire whether the town was authorized to place the position of chief of 
police under the civil service when it had not at that time accepted sec- 
tion 48, which provides for putting the members of the police department 
under civil service. 

While a marshal or chief of a police department may ordinarily be 
regarded as a member of the force, yet he is the incumbent of an office 
which is superior to and distinct from that of the rank and file of the 
department. The chief may not be promoted from the membership and 
his position is not a mere designation. Kaplan v. Sullivan, 290 Mass. 67. 
The distinction between the office of chief and that of patrolman has been 
recognized by the statutes pertaining to the civil service, although, since 
1911, the inclusion of the members of a city department extends to the 
position of the head of that department. Lattime v. Hunt, 196 Mass. 261. 
Ellis V. Civil Service Commission, 229 Mass. 147. See St. 1884, c. 320; 
St. 1911, c. 468. 

The decision of the voters expressed at a town meeting ought, however, 
to be given force and effect unless forbidden by some requirement of law. 

The status of the chief from March 24, 1937, until July 6, 1937, is not 
in question, and when, on the latter date, the town voted to accept the 
provisions of G. L. (Ter. Ed.) c. 31, § 48, the voters must have known 
that they had previously voted to accept section 49 of this same chapter 
relative to the position of chief. The town, then, was one which had 



P.D. 12. 123 

accepted the provisions of both sections in accordance with the desires of 
its citizens, although the order in which it was accompHshed was not in 
strict compHance with the statutes. There are, however, instances in the 
operation of the civil service statutes where steps prescribed to be taken 
after a certain event have been held valid if performed before that event. 
Carey v. Casey, 245 Mass. 12. Reagan v. Mayor of Fall River, 260 Mass. 
529. 

If the town, as it evidently does, desires to have the position of chief 
of its police classified under the civil service rules, then the technical ob- 
jection that the statutory sequence was not pursued is not, in my opinion, 
sufficient to stay the expressed opinion of the voters, who in fact voted to 
put the chief of the police and also the members of the police force under 
the civil service rules. 

I am accordingly of the opinion that the certification of the office of 
chief of police of the town of Webster ought to be issued by your Com- 
mission. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Schools — Transportation of School Children — Reimbursement. 

A town is entitled to reimbursement for money actually spent for the 
transportation of school children, but not for money appropriated 
to meet the expense of litigation arising out of such transportation. 

Aug. 16, 1937. 
Hon. James G. Reardon, Commissioner of Education. 

Dear Sir : — You advise me that one of the small towns of the Com- 
monwealth has submitted its "certificate of expenditures for high school 
transportation," amounting to S5,932.08, and has requested reimburse- 
ment, in accordance with the provisions of G. L. (Ter. Ed.) c. 71, § 7, on 
the basis of this expenditure, although you have also been advised that 
only $2,048 has been actually expended by the town for the purpose of 
providing transportation to school pupils, and that the balance is now 
held by the town pending the outcome of certain litigation concerning 
transportation contracts. 

You request my opinion as to whether reimbursement should be made 
by your department on the basis of the amount appearing in the certifi- 
cate or the amount actually expended. 

It is clear, under the statute to which you refer, that the expenditure 
must be for transportation and should not include any amounts by way 
of damages based upon breach of contract or in satisfaction of any judg- 
ment which may hereafter be awarded against the town. Future expendi- 
tures for transportation should not be included in the certificate which 
the town presented to your department, upon which reimbursement is 
sought. By the section in question the amount for which the State may 
reimburse the town is specifically based upon the amount actually paid 
by the town for transportation during the school year. 

You are therefore advised that reimbursement should be made upon 
the basis of the amount actually expended for transportation and not 
upon the amount reported in the aforesaid certificate. 

Very truly yours, 

Paul A. Dever, Attorney General. 



124 P.D. 12. 

Civil Service — Transfer of Employees — Leave of A bsence — Provisional 

Temporary Employment. 

Aug. 23, 1937. 

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

Dear Sir: — You inform me that a person appointed permanent junior 
accountant in the Department of the Auditor on July 1, 1936, served 
until January 1, 1937, when he was granted a leave of absence to June 20, 
1937, to accept a provisional temporary appointment in the Department 
of Public Welfare; he was reinstated in the Department of the Auditor 
on June 18, 1937, and was granted on June 19, 1937, another leave of 
absence, without pay, to December 10, 1937. 

You request my opinion as to whether this person is now eligible for a 
transfer from the Department of the Auditor to the Department of Public 
Welfare 

The authority governing transfers from one department to another of 
those already in the classified civil service is governed by Rule 27, which 
provides : — 

"Any person duly certified for permanent employment and actually 
employed for at least one year (including the time of probationary serv- 
ice) in any classified position in the Official Service may, after written 
application 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." 

The employee in question has only performed approximately six months' 
service in the Department of the Auditor, with the exception of a single 
daj'^'s work on June 18, 1937, in an apparent effort to comply with the 
provisions of G. L. (Ter. Ed.) c. 31, § 46E, which provide: — ■ 

"A leave of absence for a period of less than six months shall not be 
deemed a separation from the classified civil service, except with the 
assent of the person granted such leave." 

The question, however, is not whether or not he has separated himself 
from the classified civil service, but whether or not under the rule cited 
above he is entitled to a transfer. It is clear, however, that he must have 
been actually emplo3^ed by virtue of a permanent appointment for at 
least one year before he is eligible for a transfer to another office classified 
under the civil service. He is not entitled under the rule to add the time 
actually spent in one office under a permanent appointment to the time 
spent in another office under a provisional temporary appointment. The 
basis for the rule is the actual experience acquired by a permanent ap- 
pointee in performing the duties of a position under the civil service so 
as to determine whether or not the applicant has the necessary qualifica- 
tions for a transfer to a new office. 

It is quite clear from your communication that the person in question 
was not actually employed for at least a year after being duly certified 
for permanent employment. Consequently, I am of the opinion that he 
is ineligible for a transfer under the provisions of Rule 27. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 125 

Civil Service — Engineers and Firemen at State Hospitals — Construction of 

Statutes. 

Engineers and firemen in State hospitals are exempt from the civil service 
rules by virtue of G. L. (Ter. Ed.) c. 123, § 42. 

Aug. 24, 1937. 

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

Dear Sir: — In a recent communication you point out that G. L. 
(Ter. Ed.) c. 123, § 43, which was derived from Gen. St. 1919, c. 350, § 80, 
and which became effective on December 1, 1919, provided for the exemp- 
tion from the civil service rules of engineers and firemen employed at State 
hospitals; that G. L. (Ter. Ed.) c. 31, § 4, the present form of Gen. St. 
1918, c. 257, § 91, which, by St. 1920, c. 2, became effective February 1, 
1921, required your department to prepare rules for including within the 
classified civil service all persons in charge of steam boilers, heating, light- 
ing and power plants maintained by the State, and that in compliance 
with this statute your department has duly promulgated a rule including 
such engineers and firemen therein. 

You inquire if by reason of the fact that the 1918 enactment became 
effective subsequent to the 1919 statute, the former statute supersedes 
the latter, so that engineers and firemen at all State plants are within the 
classified civil service. 

G. L. (Ter. Ed.) c. 31, § 4, designating positions to be included within 
the classified civil service, reads, in so far as now pertinent, as follows : — 

"All persons having charge of steam boilers, heating, lighting or power 
plants maintained by the commonwealth." 

G. L. (Ter. Ed.) c. 123, § 42, provides: — 

"Engineers, firemen and head farmers employed in state hospitals shall 
be exempt from chapter thirty-one." 

Both statutes are included in the same statutory system of the Com- 
monwealth, and both must be construed, if possible, consistently with 
each other and as parts of a single harmonious arrangement for the regu- 
lation of engineers and firemen employed in plants maintained by the 
Commonwealth. Brooks v. Fitchhurg d- Leominster St. Ry., 200 Mass. 8. 
Decatur v. Auditor of Peahody, 251 Mass. 82. 

Effect should be given to both enactments by excluding from the sweep 
of G. L. (Ter. Ed.) c. 31, § 4, engineers and firemen employed at State 
hospitals. You are therefore advised that such engineers and firemen are 
exempt from the civil service rules. 

Very truly yours, 

Paul A. Dever, Attorney General. 



126 P.D. 12. 

Governor and Council — Transfer of Funds — Extraordinary Expenses — 

Executive Functions. 

The payment of a gratuity to the family of an officer killed in the course 
of duty is not one of the extraordinary expenses within the scope of 
G. L. (Ter. Ed.) c. 6, § 8, nor may it be paid from the fund created by 
said chapter 6, section 8. 

Sept. 22, 1937. 

His Excellency Charles F. Hurley, Governor of the Commonwealth. 

Sir : — You h^ve asked my opinion as to whether the Governor and 
Council have authority to transfer and pay from the "extraordinary 
fund" money to the widows and, in one instance, to the family of two 
police officers of a municipality who were killed in the performance of 
their duty. 

The "extraordinary fund" to which Your Excellency refers is appro- 
priated annually by the Legislature under the provisions of G. L. (Ter, 
Ed.) c. 6, § 8, which reads: — 

"An amount not exceeding one hundred thousand dollars shall be 
appropriated each year for carrying out sections twenty-five to thirty- 
three, inclusive, of chapter thirty-three, for the entertainment of the 
president of the United States and other distinguished guests while visit- 
ing or passing through the commonwealth, for extraordinary expenses 
not otherwise provided for, which the governor and council may deem 
necessary, and for transfer, upon the recommendation of the comptroller, 
with the approval of the governor and council, to such appropriations as 
have proved insufficient." 

The purpose for which the instant proposed payment would be made 
can hardly be said to fall within the designation in said section of "extraor- 
dinary expenses not otherwise provided for, which the governor and 
council may deem necessary." V Op. Atty. Gen. 476. While the word 
"expenses" is one of broad import, it cannot be stressed to include the 
matters in question. Sears v. Nahant, 215 Mass. 234, and cases cited. 

The payment of a gratuity to the family of an officer killed or injured 
in the course of his duty does not properly fall within the meaning of 
"extraordinary expenses," as those words are employed in said section. 
Such a payment is not unusual in character, being not uncommonly the 
subject of legislative grants, nor immediately necessary for the preserva- 
tion of the general welfare of the Commonwealth. Cities and towns are 
authorized to make payments to the dependents of a police officer killed 
in the performance of duties. G. L. (Ter. Ed.) c. 32, § 89. 

Moreover, the determination that the payment of money in the form 
of a pension or gratuity, based upon particular faithful performance of 
public duties, is, in each instance, to be predicated upon a prior deter- 
mination that such appropriation or payment is for the public interest, 
which determination may be made only by the Legislature, and is a func- 
tion of the legislative branch of the government alone. It is not a function 
of the executive branch, and the power to exercise it by such branch can- 
not be delegated by the Legislature to the executive department; nor is 
an attempt to delegate such power to be implied from the phrase "which 
the governor and council may deem necessary," as used in said section 8. 

The Supreme Judicial Court has rigidly applied the rule that public 



P.D. 12. 127 

money can be expended only for a public purpose. Whittaker v. Salem, 
216 Mass. 483; Lowell v. Boston, 111 Mass. 454; Mead v. Adon, 139 
Mass. 341 ; Kingman v. Brockton, 153 Mass. 255. 

It is within the scope of the power of the General Court to determine 
that an appropriation and payment of money to an individual are for a 
public purpose, but this is a legislative power and incapable of being dele- 
gated to the executive department. To attempt to confer this power 
upon the Governor and Council would be a clear invasion of the provision 
of the Bill of Rights which provides that "the executive shall never exer- 
cise the legislative and judicial powers, or either of them." Bill of Rights, 
art. XXX. The authority to appropriate public funds is entirely in the 
Legislature. Opinion of the Justices, Mass. Adv. Sh. (1936) 1285. The 
power of the Legislature itself to recognize moral obligations of the Com- 
monwealth and to make payments to individuals which it determines to be 
for the public interest and purposes has been recognized by our Supreme 
Judicial Court. In Opinion of the Justices, 175 Mass. 599, 602, it has been 
said of the exercise of this power : — 

"The General Court has the right to appropriate money for the pur- 
poses supposed in a case where it fairl}^ can be thought that the public 
good will be served by the grant of ... an unstipulated reward, but that 
it has not that right where the only public advantage is such as may be 
incident and collateral to the relief of a private citizen. To a great extent 
the distinction must be left to the conscience of the Legislature." 

Although public money can be expended only for strictly public pur- 
poses, a purpose does not become unlawful merely because money may be 
paid to private persons without previous claim to it. The power to give 
rewards for conspicuous civil public service as well as for conspicuous 
military service, where a public purpose will be served thereby, rests with 
the Legislature. Opinion of the Justices, 240 Mass. 616, 618. In that 
opinion the court said : — 

"Where the public purpose of the appropriation of public money is not 
clear, a recital of facts and legislative reasons may be necessary in order 
to show that the purpose is in a true sense public, and not private." 

It follows, from the foregoing opinions of the Supreme Judicial Court 
and the decisions cited therein, that the determination of the existence of 
a public purpose to be served by a payment of public money to an indi- 
vidual is a function of the Legislature and may be exercised by that body 
in an appropriate instance. The authority to make such a determination 
and payment from funds appropriated to it does not lie in the executive 
branch of the government. Moreover, the occasions for the payment of 
such sums as are referred to in the instant inquiry are not "extraordinary" 
matters, as I have heretofore stated, within the meaning of said section 8. 

For these reasons I am constrained to answer Your Excellency's inquiry 
in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 



128 P.D. 12. 

Insurance — Formation of Company — Subscriptions for Insurance — 

License. 

Sept. 22, 1937. 

Hon. Francis J. DeCelles, Commissioner of Insurance. 

Dear Sir: — You inform me that you have granted a prehminary cer- 
tificate to a certain domestic HabiHty company in order to enable it to 
secure an apphcation for insurance; that subscriptions for insurance have 
been received, mostly in December, 1936, and in March, 1937; and that 
$100,000 has been deposited in a bank in this Commonwealth as the ad- 
vance payments of premiums on such subscriptions. You request my 
opinion on the following questions : — 

"1. If a finance company or a private individual advances mone}' to an 
auto owner and said auto owner does use said money to pay in advance 
in cash his premium on a subscription to a policy of insurance subse- 
quently to be issued by the proposed insurance company, does such a 
payment represent premiums that 'have been actually paid to it in full 
in cash,' as required in G. L. (Ter. Ed.) c. 175, § 93? 

2. If an auto owner signs an agreement to accept an insurance policy 
on his vehicle when the proposed company is licensed, and pays for the 
same in advance, as required by said section 93, and in the meanwhile 
insures said vehicle in another company, with knowledge of the fact that 
his insurance in the other company cannot be cancelled without ten days' 
notice and then only at 'short term' rates, and that a new policy in the 
proposed company cannot be written except at 'short term' rates, said 
policy costing him twenty-five per cent more than if he refused to honor 
the subscription in the new company, is there anything in the statute 
which would bar the Commissioner from accepting such subscriptions and 
payments as bona fide and binding upon the auto owner? 

3. Can the Commissioner, under the law, with the knowledge that the 
projected company cannot have in force $100,000 in insurance premiums 
on the date of licensing, license said company if he believes that the com- 
pany will, within a reasonable time, have such an amount in force? 

4. In the event that the company is licensed upon the evidence that 
certain persons have paid sufficient premiums in advance upon their sub- 
scriptions to equal the statutory requirement of $100,000 and after being 
licensed the proposed company chooses to refund certain of these pre- 
miums for underwriting reasons or at the request of the assured or upon 
the refusal of the assured to cancel his policy in another company because 
of the twenty-five per cent, additional cost, or for any other reason, can 
the company so refund said advance premium payments in whole or in 
part upon said company, substituting for the same, after being licensed, 
new business in equal amount?" 

I assume that these inquiries are made in reference to the applicability 
of G. L. (Ter. Ed.) c. 175, § 93, which, in so far as pertinent, provides 
that no mutual liability company shall issue a policy "until it has secured 
applications for insurance on risks in the commonwealth the premiums 
on which shall amount to not less than one hundred thousand dollars," 
and, further, that it has satisfied you that such premiums have been 
actually paid to it in full in cash. 

Payments for the premiums so advanced to automobile owners by a 
finance company would be immaterial so long as you are satisfied that 



P.D. 12. 129 

such advancements are {genuine, made in <>;()o(l faitli, and not as a method 
of circumventinp: the reciiiirement of the statute. If the gist of the trans- 
action was a loan from the finance company to the insurance company, 
in order that th(> hitter would have the stated amount requisite to per- 
mit it to commence business, then the company is not authorized to begin 
actual operations or to issue any policies. There must be actual subscrip- 
tions from bona fide subscribers. 

The disadvantage resulting to the autom()l)ile owners from substituting 
owners in one company for those in another would arise from their sub- 
scriptions, which, when accepted by the company, become contracts and 
bind the subscribers to accept the policy for which they had already paid 
and for which the company was required to issue its policy unless there 
was contained in the said subscriptions any material provision which was 
breached by the company and which would then permit a remittance to 
the subscribers of the premiums. On the other hand, if no breach of the 
subscriptions has been effected by the company, then the failure of a sub- 
scriber to accept the policy would not entitle him to be reimbursed b}^ 
the compan^^ 

If, on the date of licensing, the company has applications for insurance 
the premiums on which amount to at least $100,000, and premiums in 
this amount have been actually paid by the applicants in cash to the 
company and such applications are now outstanding and in full force and 
effect, then the company is entitled to be licensed. The insurance, how- 
ever, to the amount of $100,000 must be actually in force immediately 
after licensing, although a few daj^s might elapse before all policies sub- 
scribed for can be issued and delivered to all subscribers. 

No company can commence its actual business or the issuance of its 
policies until premiums in the above amount have been actually sub- 
scribed for and paid in cash to it. This condition must be met before a 
license can issue. While there might be some incidental changes in the 
situation of the subscribers, who may either own a less number of auto- 
mobiles or none at all at the date of the issuance of the policies, yet, if 
the company has accepted the subscriptions and has complied with their 
terms, no refund should be made to the applicants. 

I therefore answer your first inquiry in the affirmative, and all the 
others in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 



Civil Service — Employee — Removal — Classification. 

A legislative provision authorizing a public board to employ and remove 
employees does not of itself alone indicate an intent on the part of 
the General Court that such employees should be outside the sweep 
of the civil service laws. 

Sept. 22, 1937. 

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

Dear Sir: — You have asked my opinion as to "whether or not the 
employees of the Quincy City Hospital are classified under civil service." 

Spec. St. 1919; c. 134, authorized the construction and maintenance by 
the city of Quincy of the hospital in question. 

I am informed that prior to the date of the enactment of said chapter 



130 P.D. 12. 

134 the city of Quincy had adopted the provisions of the civil service 
laws applicable to municipal employees. 

The said chapter 134 places the general management of said hospital 
in a board of managers, and vests the board with "authority to employ 
and remove superintendents, nurses, attendants, and all other agents 
and employees." 

A legislative provision authorizing a public board "to employ and 
remove" certain municipal employees, without other words with relation 
to the mode of removal or nature of the tenure, does not necessarily, in 
my opinion, indicate an intention on the part of the General Court to 
place such emploj^ees outside the protection of the civil service laws. 

It has been held in various instances in opinions by my predecessors 
in office that where other words were used by the Legislature, such as 
"removed for cause," or some specific mode of removal inconsistent with 
procedure under the civil service laws and regulations was prescribed by 
the Legislature, then such words, so used by the Legislature in the various 
enactments considered, indicated an intent on the part of the General 
Court that the employees there in question should not come within the 
protection of the civil service laws. See VI Op. Atty. Gen. 152 and 334; 
VII ihid., 719; VIII ibid., 643. 

Yet it has never been said by former Attorneys General nor by the 
Supreme Judicial Court that, from the mere use, without any other 
words, of the phrases "appoint and remove" or "employ and remove," 
concerning the relation between a superior municipal oflEicer and em- 
ployees whose appointments were not of an emergency or temporary 
character, it could be inferred that the Legislature intended to place 
such employees outside the protection of the civil service laws; and I am 
of the opinion that the words "employ and remove," as used in said chap- 
ter 134, were not intended by the Legislature to place, and do not place, 
the employees of the Quincy City Hospital in the class of those employees 
who are excluded from the benefits of the civil service laws and regula- 
tions because they "are by law exempt from the operation of this chapter," 
namely, the Civil Service Law. G. L. (Ter. Ed.) c. 31, § 5. 

Accordingly, I answer your inquiry to the effect that the employees of 
the Quincy City Hospital are properly classified under civil service. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Interstate Commerce — Apples — Inspection — Storage. 

Sept. 24, 1937. 

Hon. William Casey, Commissioner of Agriculture. 

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

"Will you kindly give me in writing your opinion as to whether or not 
Massachusetts apple inspectors shall inspect for export shipment apples 
stored in Massachusetts warehouses even though said apples were grown 
out of the State. Inasmuch as the Massachusetts Apple Grading Law 
pertains to 'apples packed or repacked within the commonwealth and 
intended for sale within or without the commonwealth,' it is my interpre- 
tation that export apples should be inspected by our inspectors, no matter 
what State shipped the apples here for storage." 



P.D. 12. 131 

Apples from outside the Commonwealth and consigned to persons out- 
side Massachusetts are still in interstate commerce, even if placed in 
storage within the Commonwealth temporarily, and may not, under such 
circumstances, be inspected. 

If, however, the apples are not shipped from a State outside Massa- 
chusetts directly to another foreign State, but are sent directly to a place 
of storage within the Commonwealth and then, after being packed or re- 
packed in storage, are for the first time consigned to a person in another 
State outside Massachusetts, they will not, while in such storage, be in 
interstate commerce and may be inspected at such place. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Employees of the Labor Relations Commission — Classifi- 
cations. 

Sept. 27, 1937. 
Labor Relations Commission. 

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

"The Labor Relations Commission respectfully requests a ruling by 
your department relative to the following matter: 

Under St. 1937, c. 436, § 4, known as the Labor Relations Act, are ap- 
pointments to the positions of 'executive secretary, and such attorneys, 
examiners and regional directors' exempt from the provisions of G. L. 
(Ter. Ed.) c. 31, and the rules and regulations of the Civil Service Com- 
mission?" 

The applicable portion of said section 4 reads : — 

"The commission shall appoint an executive secretary, and such attor- 
neys, examiners and regional directors and shall appoint such other em- 
ployees with regard to existing laws applicable to the employment and 
compensation of officers and employees of the commonwealth, as it may 
from time to time find necessary for the proper performance of its duties 
and as may be from time to time appropriated for by the general court." 

I am of the opinion that in relation to the four positions first named in^ 
said section, as to which you specifically inquire, namely, an executive- 
secretary, and such attorneys, examiners and regional directors as the 
Commission may "from time to time find necessary for the proper per- 
formance of its duties," it was not the intention of the Legislature tO" 
make them subject to the provisions of the Civil Service Law, G. L. (Ter. 
Ed.) c. 31. 

In the same sentence, power to appoint to the said four positions is 
given to the Commission without qualification; and, in contradistinction, 
power is also given to the Commission to appoint "other employees," 
whose appointment is specificall}^ stated to be qualified by existing laws 
applicable to the employment of officers and employees of the Common- 
wealth generally. The wording of this sentence, which places the said 
four positions in one class and the other positions to which the Commis- 
sion may appoint in another class, plainly indicates that the Legislature 
realized that there was a distinction in the nature of the emploj^ment of 
those occupjdng the said four positions and the "other employees" of the 



132 P.D. 12. 

Commission, and that it was the intention of the Legislature that those 
in the first class should not be under civil service and that those in the 
second class should be placed thereunder. 

I therefore answer your question to the effect that appointments to the 
positions of executive secretary, attorneys, examiners and regional directors, 
made by your Commission, are exempt from the provisions of G. L. (Ter. 
Ed.) c. 31, and the rules and regulations of the Civil Service Commission, 
but that other employees whom you may appoint are subject to such 
provisions. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Schools — Transportation of Pupils to Private Schools — Reimbursement of 

Town by Commonwealth. 

Oct. 2, 1937. 
Hon. James G. Reardon, Commissioner of Education. 

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

"Since the passage of St. 1936, c. 390, several towns have provided 
transportation to pupils attending private schools in other towns, under 
conditions set forth in the opinion of the Attorney General under date of 
December 23, 1936 {ante, p. 37). Claims for reimbursement for trans- 
portation have been made by the towns furnishing it to private school 
pupils as indicated above. Our question is: 'May the Department of 
Education approve such claims for reimbursement?' In other words, 
'Is transportation legally paid for private school pupils reimburseable by 
the State, as in the case of public school pupils under G. L. (Ter. Ed.) 
c. 71, §7?'" 

I answer j^our question in the affirmative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Shellfish — Permits — Municipal Regulation. 

Oct. 2, 1937. 
Mr. Bernard J. Sheridan, Supervisor of Marine Fisheries. 

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

"First: May the aldermen of a city or the selectmen of a town, 
acting under authority of G. L. (Ter. Ed.) c. 130, § 48, as amended, or 
any other provisions of law which give the selectmen the right to 'control, 
regulate or prohibit the taking of eels, and any or all kinds of shellfish 
and seaworms within such city or town,' make regulations that deny to 
persons not resident in the city or town the right to take shellfish for 
their own family use? 

Second : May the aldermen of a city or the selectmen of a town, acting 
under the same authority, make a regulation allowing a nonresident to 
take shellfish for his own family use but subject to a permit for which a 
fee is charged?" 



P.D. 12. 133 

The provisions of G. L. (Ter. Ed.) c. 130, §§ 48-50, inclusive, as 
amended, lay down a legislative rule which may not be changed by city 
or town action. 

Said section 50 provides, in substance, that any inhabitant of the 
Commonwealth who holds a permit, issued under section 48 by any city 
or town, to take the fish therein referred to from the waters of such mu- 
nicipality may take such fish "for his own family use" from the waters 
of any other city or town to an extent therein designated. It was not the 
intent of the Legislature, indicated b}^ the wording of said section 50, 
that such extended use of a permit for the special purpose referred to 
should be subject to any further permit or charge other than the initial 
one paid when the original permit was issued. 

A city or town regulation which denies the right to take fish from local 
waters to all nonresidents for their "family use" would be repugnant to 
the explicit provisions of said section 50 with regard to persons having a 
permit with relation to the waters of another locality, and so would be 
void. A city or town regulation which denied to nonresident citizens of 
the Commonwealth, merely as such, the right to obtain permits of any 
sort to take fish from local waters, while giving the right to residents. 
would seem to be so arbitrary and unreasonable as to be invalid. 

I have used the word "fish" herein as denoting shellfish, eels and sea- 
worms, which are referred to specifically in the noted sections, and answer 
both your questions in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

District Court — Fines — Ordinance — Motor Vehicle. 

Oct. 7, 1937. 
Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir : — You ask my opinion with relation to the disposition of 
certain fines levied in the District Court of North Adams. Whether or 
not the provisions of section 12 of the ordinance of North Adams, to which 
you refer, are valid, the question of such validity is one primarily for 
judicial interpretation. Its invalidity could be raised as a defense by one 
charged in a complaint with its violation. Nevertheless, where the court 
has proceeded to convict a person of a violation of such section of the 
ordinance, the fine is imposed for violation of the city ordinance and not 
for a violation of the provisions of G. L. (Ter. Ed.) c. 90; and the clerk 
has no other course than to pay it to the municipality and may not go 
behind the record and treat the conviction as if it were for a violation of 
G. L. (Ter. Ed.) c. 90, § 14, and pay the money into the county treasury. 

You have set forth said section 12 and the provisions of G. L. (Ter. 
Ed.) c. 90, § 14, in your letter, and it is obvious from an inspection of 
them that ihey are not precisely the same, the former providing that 
vehicles shall slow down at street crossings and intersections, and the 
latter providing that there shall be such slowing down "where his (the 
operator's) view is obstructed." 

Said section 12 of the ordinance would seem to be a regulation as to 
speed and to fall within the provisions of G. L. (Ter. Ed.) c. 90, § 18, 
and, not having been adopted in accordance with the provisions of said 



134 P.D. 12. 

section 18, might be invalid. The invahdity of said section, however, is 
a question for judicial determination in a case before the courts. 

The foregoing considerations answer your first question, and I answer 
your second question in the negative. 

Very truly yours, 

Paul A. Dever, Attorney Geyieral. 

(rovernor and Council — Transfer of Funds — Extraordinary Expenses. 

Where no appropriation has been made by the Legislature for the work 
of a special commission, the Governor and Council cannot transfer 
money from another source for the use of such commission; nor, 
under G. L. (Ter. Ed.) c. 6, § 8, can the expense of hiring an engineer 
by such commission be deemed an "extraordinary expense," and 
no amount for such expense may be expended from the appropriation 
provided for by said chapter 6, section 8. 

Oct. 21, 1937. 

His Excellency Charles F. Hurley, Governor of the Commonwealth. 

Sir: — I am in receipt from Your Excellency of the following letter 
requesting my opinion in connection with a proposal to place at the dis- 
posal of a special commission appointed under the Resolves of 1937, 
chapter 22, funds from the appropriation provided for by G. L. (Ter. 
Ed.) c. 6, § 8, in accordance with a letter from the chairman of said com- 
mission, which also follows: — 

"October 20, 1937. 

Hon. Paul A. Dever, Attorney General, State House, Boston, Massa- 
chusetts. 

My Dear Attorney General: — Referring to the enclosed letter 
from Honorable Edward L. Logan, I have been directed by His Excel- 
lency the Governor to request an opinion of you relative to the subject 
matter. . . . 

Very truly yours, 

William V. Gormley, 

Assistant Secretary." 

"Law Offices of Edward L. Logan, 
85 Devonshire Street, Boston, Mass., October 18, 1937. 

Governor Charles F. Hurley, State House, Boston, Massachusetts. 

My Dear Governor Hitrley: — Under Chapter 22 of the Resolves 
of 1937, a Special Commission was appointed, consisting of the Chairman 
of the Board of Trustees of the Boston ]\Ietropolitan District, the Chair- 
man of the Tr'ansit Department of the City of Boston, the Corporation 
Counsel of the City of Boston, the Chairman of the State Street Com- 
mittee, and a member of the Metropolitan Transit Council, for the pur- 
pose of investigating the matter of the removal of the elevated railwaj' 
structure located on Atlantic Avenue and other streets. 

No appropriation was made for carrying out the purposes of the resolve. 
To make its report effective, the Conmiission is of the opinion thai some 
money will be necessary, antl I am writing, at the suggestion of the mem- 
bers of the Commission, to request, if it is possible, that we may be allowed 
from such sums as the Governor of Massachusetts mav have at his dis- 



P.U. 12. 135 

posal, the sum of twenty-five hwidred dollars to bo iisod, among other pur- 
poses, for the hiring of a competent engineer, whose opinion would be 
regarded as authoritative in the making of our report to the legislature. 
With the hope that you may be able to give us from such funds, which 
you have under your control, the money which in the opinion of the 
Commission is really needed, ... I remain, 

Sincerely yours, 

Edward L. Logan." 

G. L. (Ter. Ed.) c. 6, § 8, reads as follows: — 

"An amount not exceeding one hundred thousand dollars shall be 
appropriated each year for carrying out sections twenty-five to thirty- 
three, inclusive, of chapter thirty-three, for the entertainment of the 
president of the United States and other distinguished guests while visiting 
or passing through the commonwealth, for extraordinary expenses not 
otherwise provided for, which the governor and council may deem neces- 
sary, and for transfer, upon the recommendation of the comptroller, with 
the approval of the governor and council, to such appropriations as have 
proved insufficient." 

Under this section the Governor and Council have authority, on the 
recommendation of the Comptroller, to transfer money from the amount 
appropriated under the provisions of said section, for a given purpose, to 
"such appropriations as have proved insufficient." 

In the present instance, inasmuch as no appropriation was made by the 
Legislature for the work of the said special commission, this particular 
power of transfer cannot be exercised by the Governor and Council under 
the terms of said section. Where no definite appropriation has actually 
been previously made by the General Court as to which a deficiency has 
occurred, it is obvious that no transfer can be made, as there has never 
been any appropriation to which a transfer could be "allocated." V Op. 
Atty. Gen. 476; see Opinion of Attorney General to the Comptroller, 
December 4, 1930 (not published). 

Lender the provisions of section 8 the Governor and Council may also 
make payments of money, from the appropriation made by said section, 
"for extraordinary expenses not otherwise provided for, which the gov- 
ernor and council may deem necessary." 

Although the purpose for which the special commission desires this 
money expended by the Governor and Council is undoubtedly a public 
purpose, since the work of the special commission has been stamped as 
such by the Legislature by virtue of the general terms of said chapter 22, 
yet, in my opinion, it can hardly be said, as a matter of law, that the 
expense of hiring an engineer for the benefit of a legislative committee is 
properly to be deemed an "extraordinary expense," within the meaning 
of said section 8. 

The employment of an engineer to assist a legislative committee en- 
gaged in considering a subject which is to some degree connected with 
engineering problems is not unusual. Such a payment would be an 
ordinar}^ or usual form of payment. An appropriation for such a payment 
w^ould be a usual and customary form of appropriation. Neither could 
be said to be extraordinary. 

It can hardly be doubted but that the Legislature might have had in 
mind, in creating the special commission, that the commission might 
desire the help of an engineer or other persons in his work. The Legisla- 



136 P.D. 12. 

ture, however, did not see fit to allow the commission by appropriation 
any money for such a purpose. The mere fact that said commission now 
desires to do something to help it in making its report, for which the 
Legislature did not see fit to authorize the expenditure of money, does not 
make such expenditure an "extraordinary" one. 

I am unaware of any use of the word "extraordinary," as it is employed 
in said section 8, which could make a payment of money for the purpose 
outlined in the letter of the commission a payment for an "extraordinary" 
expense. No circumstances have arisen and no act has been performed 
by servants of the Commonwealth from which any moral duty to make 
this payment could arise, nor has the demand for such payment arisen 
from unexpected or unpredictable reasons, as was the case with regard to 
a transfer from the appropriation for extraordinary expenses for the bene- 
fit of certain prisoners who had lost their money through the closing of 
one of the trust companies in 1931. See Opinion of the Attorney General 
to the Lieutenant-Governor and Council, October 30, 1935 (not published). 

Very truly yours, 

Paul A. Dever, Attorney General 

Teachers' Retiremejit — Retiring Allowance — Average Salary —Deductions. 

Nov. 1, 1937. 
Hon. James G. Reardox, Commissioner of Education. 

Dear Sir: — In a recent communication ^'■ou have written me as 
follows : — 

"Under the Teachers' Retirement Law the amount of the assessments 
a member is permitted to pay depends upon the salary of the member. 
In determining the retiring allowance, the average salary for the five 
years preceding retirement is a very important factor. 

In addition to being a factor in computing retiring allowances, the law 
furtker provides that no pension for a teacher under section 10 (5) of 
the retirement law shall exceed one-half the average salary for the five 
years preceding retirement. 

As the salary is such an important factor under the Teachers' Retire- 
ment Law, the Retirement Board would like your opinion as to the salary 
which should be used as a basis for assessments and to determine the 
average salary for the five years preceding retirement, in the following 
cases : 

1. If the teacher is making a voluntary contribution to a city or town, 
as for example ten per cent. 

2. If a teacher agrees to serve for a certain period during the school 
year without pay. 

3. If the salary is cut by the city or town, as, for example, in the case 
of Fall River, where teachers' salaries were originally reduced twenty 
per cent and where the cut is now fifteen per cent. 

I beheve that in all cases where there were voluntary contributions, a 
waiver of salary or a reduction by a city or town the reductions have 
been restored either in whole or in part, indicating that in each of the 
three cases it was the intention for the reductions to be of a temporary 
nature during the depression." 

The principles which were enumerated in an opinion given by one of my 
predecessors in office to a former Commissioner of Education, on March 



P.D. 12. 137 

11, 1932 (Attorney General's Report, 1932, p. 53), with which opinion 
I concur, — to the effect that the Teachers' Retirement Board should 
base its assessments for the annuity fund on the full salary established 
for a teacher, irrespective of any sum paid by such teacher or any deduc- 
tion made from such a salary to or by a municipality, but that when a 
teacher had made a specific contract with a municipality to serve for a 
designated period without salary, then the smaller salary so received was 
to be the basis for assessments, — are applicable to a determination of 
the salary which should be used to arrive at the average salary for the 
five years preceding retirement. 

The salary which should be used as a basis for assessments was described 
in said opinion, and the salaries which should be used in computing the 
average salary for the five years preceding retirement are to be deter- 
mined in the same way. 

The phrase with relation to salary computation in connection with the 
retiring allowance of teachers, under G. L. (Ter. Ed.) c. 32, § 10 (5), is 
"based on his average yearly rate of salary for the five years immediately 
preceding his retirement," and with relation to the deductions which 
were to be made from the amount of salary from year to year, under 
G. L. (Ter. Ed.) c. 32, § 12 (5), referred to in section 9 (2), is "from the 
amount of the salary due each teacher." 

The word "salary" in said section 12 (5) and section 9 (2) was defined 
in said opinion of March 11, 1932, as follows: "The word 'salary/ as 
used in said section 9 (2), means the compensation which each of the 
teachers affected by the statute is entitled to receive as a matter of law." 

So it was held in said opinion (1) that the Retirement Board should base 
its assessment on the full salary to which the teacher is entitled by law, 
regardless of any sum paid therefrom to the town by or on behalf of the 
teacher with his consent; (2) that the Retirement Board should base its 
assessment on the full salary to which the teacher is entitled by law, 
regardless of any deduction made by a town from the amount so due; 
and (3) that the Retirement Board should not base its assessment on the 
full salary to which the teacher was originally entitled by law if the teacher 
had entered into an agreement by which he contracted to serve for a 
designated period during the year without salary. 

Applying the same principles to the matter which you now lay before 
me, I answer, with relation to the cases which you have set forth in your 
letter as above quoted, to the effect (1) that if the teacher is making or 
has made a voluntary contribution to a city or town, the rate of salary 
for the year or years when such voluntary contribution is made is not to 
be used in computing the "average yearly rate of salary for the five years 
immediately preceding his retirement," but that the salary established 
for him by the municipality without such contribution is to be employed 
for such purpose; (2) that where the teacher agrees to serve for a certain 
period during the school j^ear without pay, the salary for such year is to 
be taken as being the sum actually paid such teacher under such an agree- 
ment; and (3) that if the salary is cut by the city or town the same prin- 
ciple as that applied in case (1) is to be followed. 

You refer in your letter to an opinion, a portion of which has been 
called to your attention, rendered by the Attorney General to the Com- 
missioner of Insurance on July 26, 1937 (ante, p. 113). This opinion 
related to deductions from the salaries of employees other than teachers, 
which were governed by St. 1936, c. 318, and concerned the meaning of 



138 P.D. 12. 

the words "regular compensation," as used in said chapter 318, in de- 
scribing the basic salary for employees for which a pension is to be paid 
them. In that opinion the distinction between the wording of said chap- 
ter 318 and the wording of said G. L. (Ter. Ed.) c. 32, §§ 12 (5) and 9 (2), 
is pointed out. 

I enclose a copy of this opinion to the Commissioner of Insurance, so 
that you may have it before you in its entirety and may see that it is not 
applicable to the situation regarding teachers. If it were applicable, the 
wording of the statute as to the retirement of teachers and that as to the 
retirement of employees under said chapter 318 would have been the 
same, and the reduced yearly salary spoken of in case (2), cited in your 
letter, would then have to be treated in the same manner as the other 
cases which you stated. That, however, is not the situation with regard 
to the provisions of G. L. (Ter. Ed.) c. 32, affecting the basic salary of 
teachers to be used in computing a portion of their retirement allowance. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Teachers' Retirement — Service outside the Commonirealth — "State." 

Nov. 4, 1937. 
Hon. James G. Reardon, Commissioner of Education. 

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

"At a meeting of the Teachers' Retirement Board held on October 26, 
1937, it was voted to request your opinion as to whether or not St. 1937, 
c. 302, which allows credit for service in the public day schools of other 
States, under certain conditions, applies to public day school service 
rendered in the possessions of the United States, such as the Philippine 
Islands and Porto Rico, and also in the government schools in the Panama 
Canal Zone." 

St. 1937, c. 302, to which you refer, and which is entitled "An Act to 
allow credit under the Teachers' Retirement Law for service rendered 
in public day schools- outside the Commonwealth," refers to the public 
day schools in whose service teachers have acted and for which they are 
to be allowed credit under the retirement system as "the public day 
schools of any other State." 

G. L. (Ter. Ed.) c. 4, § 7 (31), provides that the meaning of the word 
^' state," in construing statutes where a contrary intention does not clearly 
;appear, shall, when the word "state" is "applied to the different parts 
of the United States, extend to and include the District of Columbia and 
the several territories; ..." 

None of the three possessions of the United States to which you refer 
in your letter is a territory, and consequently the schools in such posses- 
sions do not fall within the definition of public day schools of any other 
State, as employed in said chapter 302, there being nothing in the chapter 
itself or in the legislative history of its enactment which indicates that 
any contrary meaning is to be given to the word "state" as therein em- 
ploj^ed. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 139 

Alcoholic Beverages Control Commission — Authority — Regulation of Prices. 

Nov. 4, 1937. 
Alcoholic Beverages Control Com,mission. 

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

"The Commission has been requested by the Massachusetts Whole- 
sale Liquor Dealers' Association, Inc. to make a regulation which in sub- 
stance shall provide as follows : — 

'The price to be charged to the retailer for any brand of merchandise 
(alcoholic beverages) shall be such that the gross profit to every whole- 
saler of such merchandise shall be not less than fifteen per cent of the 
selhng price of such merchandise. Gross profit shall mean the difference 
between the selling price and the invoice cost of the merchandise, plus 
freight and the required taxes imposed by the Commonwealth of Massa- 
chusetts.' 

Inasmuch as the Commission now has the matter under consideration, 
will you kindly advise us as to whether or not, in your opinion, the Com- 
mission may legally make such a regulation under authority contained in 
G. L. (Ter. Ed.) c. 138, § 24, as amended." 

The only authority given to your Commission by the Legislature to 
regulate prices of alcoholic beverages is that to which you refer, contained 
in section 24 of G. L. (Ter. Ed.) c. 138, as amended, and reads: — 

"The commission shall . . . make regulations . . . for establishing 
maximum prices chargeable by Hcensees under this chapter ..." 

Under such a grant of authority specifically applicable to maximum 
prices alone, and probably intended by the Legislature as a safeguard 
against exploitation of the purchasing public, you are not empowered to 
make such a regulation as that set forth in your letter, which purports to 
regulate minimum prices as between retailer and wholesaler. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Mental Diseases — Institutions — Schools — Licenses. 

Nov. 16, 1937. 
Dr. Clifton T. Perkins, Acting Commissioner of Mental Diseases. 
Dear Sir : — I am in receipt from you of the following letter : — 

"The first sentence of G. L. (Ter. Ed.) c. 123, § 33, reads as follows: — 

' The department may annually license any suitable person to establish 
or have charge of an institution or private house for the care and treat- 
ment of the insane, epileptic, feebleminded, and persons addicted to the 
intemperate use of narcotics or stimulants, and maj' at any time revoke 
the license.' 

Recently, several problems have been raised in this department relative 
to the licensing of private schools for the care of feebleminded individuals. 
We have felt that the meaning of the above sentence in regard to this 
matter did not apply to so-called 'day schools' for the feebleminded, but 
applied only to those schools which gave continued care, day and night, 
to feebleminded pupils. 

I would request an opinion from you as to whether or not the term 



■140 P.D. 12. 

'institution or private house/ as used in G. L. (Ter. Ed.) c. 123, § 33, 
applies to day schools as outlined above, or only to those schools which 
give continued day and night care to their residents." 

I am of the opinion that it was not the intent of the General Court that 
the words "institution or private house," as used in said section 33, should 
include within the scope of their meaning "day schools" which furnish 
only tuition during a few hours of daytime to the feebleminded. 

It is, of course, a question of fact in any given instance, to be passed 
upon by your department, as to whether a particular school limits its func- 
tions solely to such tuition during such hours. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Hospital Employees — Nonresidence — Compensation. 

Nov. 16, 1937. 
Dr. Clifton T. Perkins, Acting Commissioner of Mental Diseases. 

Dear Sir: — You have asked my opinion, in effect, as to whether 
employees of the Metropolitan State Hospital who are not residents 
thereof, and who receive only one meal per day from the hospital in con- 
nection with their work there, are to be treated as "in residence thereat 
throughout" a year in computing the average yearly population of the 
hospital under the provisions of St. 1928, c. 372, § 10. 

Said section 10 provides : — 

"There shall be paid by the commonwealth to the city of Waltham as 
full compensation for the right to dispose of the sewage of said metropoli- 
tan hospital through the sewerage system of said city . . . beginning with 
the year nineteen hundred and thirty-four, the sum of eighteen hundred 
dollars per year, unless in any year during said last mentioned five year 
period the average population of said hospital, including inmates, attendants 
and other employees in residence thereat throughout said year shall e.rceed 
two thousand, in which case there shall he an added payment to said city ..." 

I am of the opinion that attendants and other employees who do not 
in fact make their abode at such hospital but who, as you say, are domi- 
ciled away from the hospital grounds, and I assume live and reside in 
some dwelling outside the hospital grounds, are not to be taken as being 
in residence at the hospital, even if they receive one meal a day there, 
and that they are not to be counted in figuring the average "population" 
of the hospital in any given year. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Ofiicicds — Annual Bonds — Statute. 

Nov. 17, 1937. 
Hon. William E. Hurley, Treasurer and Receiver General. 

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

"This department recently sent out notices to various officials aft'ectf^d 
by St. 1937, c. 219, §§ 2, 4 and 6, in accordance with an informal opinion 



i 



P.D. 12. 141 

of your department advising that all bonds now deposited with the State 
Treasurer by said officials should be substituted by new bonds dated 
July 16, 1937, and annually thereafter. 

As inquiries have been made as to our authority in making this demand, 
I would I'espectfuUy ask your formal opinion as to the effect of said chap- 
ter 219 on the bonds of the officials affected by said act now on file with 
this department." 

In my opinion, the notice which you describe as having been sent out 
by your department is a correct interpretation of the effect of St. 1937, 
c. 219. In its requirement that officials should give a bond and renew it 
annually, the chapter is not retrospective in its terms. It is not to be 
interpreted as applying to acts which have been done prior to its effective 
date, but makes requirements as to what shall be done when it becomes 
effective. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Schools — Visiting Teachers — Lip Reading — Free Lunches. 

Nov. 29, 1937. 

Hon. Albert Cole, Chairman, Special Commission Relative to University 

Extension. 

Dear Sir:— 1. Your Commission has submitted to me 1937 House 
Bill No. 815, which provides for the employment by cities and towns of 
visiting teachers, which bill was not enacted into law at the last session of 
the Legislature, and in connection with its subject matter has asked me 
the following question : — 

"Do cities and towns under the present law have the right to employ 
visiting teachers, so called, without further legislation?" 

There is not now any specific provision of law authorizing the appoint- 
ment of "visiting teachers" by school committees. It may well be that 
the duties of a visiting teacher are so unlike those of the ordinary teacher 
in our public school system that the authority now given to school com- 
mittees to employ "teachers" does not empower the employment of 
teachers of the particular type named. I assume that in the present state 
of the statutory law that would ultimately be a question for judicial in- 
terpretation if some city or town did in fact employ one as a "visiting 
teacher." 

Such a result might be averted and any existing doubt as to the power 
of school committees in this respect could be set at rest by the enactment 
of a measure such as said House Bill No. 815. 

2. You also submit another 1937 House Bill No. 816, authorizing in- 
struction in lip reading in the schools. An inspection of the applicable 
existing statutes indicates that no specific authority has been given to 
any authorities relative to the employment of teachers for the highly 
specialized form of instruction indicated. Such authority should properly 
be established by the Legislature specifically, for its proper implication 
from existing law is doubtful. House Bill No. 816 should not be taken as 
a model for drafting a proposed measure. The mandatory provisions 
therein relative to private school pupils are of doubtful meaning and 
propriety. 



142 P.D. 12. 

3. The third matter to which you have directed my attention, 1937 
House Bill No. 952, relates to the authorizing of school committees to 
furnish food for undernourished school children. 

It is obvious from an inspection of the existing laws that school com- 
mittees have no authority to furnish free lunches. See G. L. (Ter. Ed.) 
c. 71, § 72. 

In the absence of action by the Federal authorities under the Social 
Security Act (see St. 1935, c. 494; St. 1936, c. 347), it is not clear that 
the local departments of public welfare would have authority to furnish 
food to school children in the way indicated, and probably intended, by 
said House Bill No. 952 in connection with the schools as such. Of course, 
such departments have authority to supply necessary food to needy 
children, but their obligation to furnish food in a manner related to the 
administration of the school sj^stem, which I take to be an integral part 
of the desired legislation, is nowhere made plain in our statutes. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Regulations — Interstate Commerce. 

Nov. 29, 1937. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You submit to me for an opinion as to their legaUty 
two regulations the adoption of which is contemplated by your Board. 
These regulations read as follows : — 

"Regulation 37A. One label on every bottle, jug or other container of 
American type whiskey, other than corn or blended whiskey, offered b}' 
any Manufacturer or Wholesaler and Importer for intra-state sale solely 
within this Commonwealth, shall state the period of time during which 
after distillation and before bottling such whiskey was aged in charred 
oak barrels, and shall also state whether such barrels were new or re-used. 

Regulation 37B. One label on every bottle, jug or other container of 
American type corn whiskey, other than a blend, offered by any Manu- 
facturer or Wholesaler and Importer for intra-state sale solely within this 
Commonwealth, shall state the period of time during which after distilla- 
tion and before bottling such whiskey was aged in oak barrels." 

Under the provisions of G. L. (Ter. Ed.) c. 138, § 24, the Commission 
is authorized, subject to the approval of the Governor and Council, to 
make regulations "for insuring the purity, and penalizing the adultera- 
tion, or in any way changing the quality or content, of any alcoholic 
beverage." 

Such regulations, however, must not be inconsistent with our own 
statutes or "with federal laws and regulations, governing the labelling 
of packages of alcoholic beverages as to their ingredients and the respec- 
tive quantities thereof." 

The labelling prescribed by the proposed regulations is confined to the 
duration and method of ageing process employed. 

Their operation is to be confined exclusively, as stated therein, to "intra- 
state sale solely within this Commonwealth." 

Under the Twenty-first Amendment, the transportation and importa- 
tion of intoxicating liquors for delivery and use in a State must be effected 
in such a way as not to be violative of the statutes of that particular 



P.U. 12. 143 

State. States are thus permitted to legislate in a field which, but for such 
a provision, would probably be held as violative of the interstate com- 
merce clause of the Federal Constitution, as the effect of such statutes 
would be to impose a direct burden upon such commerce. See State 
Board v. Young's Market Co., 299 U. S. 59. 

The regulations arc not inconsistent with our statutes or with Federal 
laws or regulations, and, in my opinion, will be valid if adopted by your 
Board and approved by the Governor and Council. 

Very truly yours, 

Pat'L a. Deveh, Attorney General. 

Alcoholic Beverages — State Election — City Election — Sales. 

Nov. 29, 1937. 
Alcoholic Beverages Control Commission. 

Gentlemen : ^ You have called my attention to G. L. (Ter. Ed.) 
c. 138, § 33, which provides: — 

"No licensee under section twelve shall sell and no licensee under sec- 
tion fifteen shall sell or deliver any alcoholic beverages, and no regis- 
tered pharmacist acting under section twenty-nine and no licensee under 
section thirty A shall sell any alcoholic beverages or alcohol without a 
physician's prescription, during polling hours on any day on which a state 
or municipal election, caucus or primary is held in the city or town in which 
such licensed place is conducted; provided, that the foregoing restrictions 
shall not apply in the case of such an election, primary or caucus if the 
local licensing authorities issue an order to that effect applicable alike to 
all licensees of every class subject to such restrictions." 

In connection therewith you have asked mj^ opinion as to whether or 
not — 

"1. The provisions of the said section apply to a special primary at 
which party nominees are to be chosen to run at a special election to fill 
a vacancy in the United States House of Representatives? 

To a special election to elect a nominee to fill a vacancy in the United 
States House of Representatives? 

2. The provisions of the said section apply to a special primary at which 
party nominees are to be chosen to run at a special election to fill a va- 
cancy in the Massachusetts Legislature? 

To a special election to elect a nominee to fill a vacancy in the Massa- 
chusetts Legislature? 

3. The provisions of the said section apply to a special election at 
which a city councillor is to be elected to represent one of the wards of a 
city?" 

1. A "state election" has been defined by the Legislature, in G. L. 
(Ter. Ed.) c. 50, § 1, as the words are used in G. L. (Ter. Ed.) cc. 50-57, 
as follows : — 

" 'State election' shall apply to any election at which a national, state 
or county officer is to be chosen by the voters, whether for a full term or 
for the filling of a vacancy." 

I know of nothing which indicates that the Legislature did not employ 
the words "state election" in said G. L. (Ter. Ed.) c. 138, § 33, as amended, 
in the same sense. 



144 P.D. 12. 

A "special election," as you use the quoted words in your letter, indi- 
cates an election to fill a vacancy. It follows, logically, that a primary 
such as you describe in your first question falls within the meaning of 
''state primary," as those words are employed in said section 33. 

I therefore answer both queries contained in your first question in the 
affirmative. 

2. By reason of the same considerations I answer both the queries con- 
tained in your second question in the affirmative. 

3. The words "city election" are Hkewise defined by the Legislature 
in said G. L. (Ter. Ed.) c. 50, § 1, as follows: — 

" 'City election' shall apply to any election held in a city at which a 
city officer is to be chosen by the voters, whether for a full term or for the 
filhng of a vacancy." 

I am of the opinion that the words "municipal election" as used in 
said section 33 are there employed by the Legislature with the same 
significance as is the above-quoted portion of said chapter 50, section L 
A city councillor is a city officer. I therefore answer your third question 
in the affirmative. 

There is nothing contained in the provisions of said section 33 or in 
any other portion of said chapter 138 which indicates that the Legis- 
lature did not intend the provision for the closing of places selling alcoholic 
beverages to apply to the whole of a city when any election was held 
therein, irrespective of whether only the voters in one ward thereof were 
taking part in the same. The Legislature evidently perceived that hard- 
ships might result if this statute were enforced in every instance and, 
accordingly, empowered the local licensing authorities, in the exercise of 
their sound judgment and discretion, to grant exceptions from the opera- 
tion of the statute. G. L. (Ter. Ed.) c. 138, § 33, as most recently amended 
by St. 1937, c. 268. This was accomphshed by the General Court by 
inserting in the statute the following provision: "provided, that the 
foregoing restrictions shall not apply in the case of such an election, 
primary or caucus if the local licensing authorities issue an order to that 
effect applicable alike to all licensees of every class subject to such re- 
strictions." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Lord's Day — Holiday — Publication — Computation of Time. 

Nov. 30, 1937. 
Alcoholic Beverages Control Commission. 

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

"G. L. (Ter. Ed.) c. 138, § 15A, as amended, provides that 'Local licens- 
ing authorities shall cause to be published at the expense of the applicant 
a notice of every application for a license under section twelve, fifteen or 
thirty A within ten days after the receipt of such application.' 

Will you kindly advise us as to whether or not, in your opinion, if the 
tenth day following receipt of the application is a Sunday or legal holiday 
the notice of the application may legally be pubhshed on the next suc- 
ceeding business day, or whether it can legally be published on the Sun- 
day or legal hoHday?" 



P.D. 12. 145 

The provisions of G. L. (Ter. Jul.) c. 4, § 9, read: — 

"Except as otherwise provided, when th(^ day or the last day for the 
performance of any act, including the making of any payment or tender 
of payment, authorized or required by statute or by contract, falls on 
Sunday or a legal holiday, the act may, unless it is specifically authorized 
or required to be performed on Sunday or on a legal holiday, be performed 
on the next succeeding business day." 

The expression "within ten days after the receipt of such application" 
allows the same to be published at any time before the expiration of ten 
days. Young v. The Orpheus, 119 Mass. 179, 185; O'Neil v. Boston, 257 
Mass. 414. 

Accordingly, in regard to the facts which you have set forth, Sunday or 
a legal holiday, as the tenth day after the receipt of an application, is the 
last day on which performance by publishing may be accomplished. Be- 
ing such last day, said G. L. (Ter. Ed.) c. 4, § 9, by its expHcit terms 
permits the performance by publication to be made upon the next day, 
which would be Monday, the eleventh day since such receipt of the appli- 
cation. 

Very truly yours, 

Paul A. Devp:r, Attorney General. 



146 P.D. 12. 



INDEX TO OPINIONS 



Administration and Finance, Commission on; confidential employee 
Alcoholic beverages: druggist's license: local regulations .... 

License; applicants; right of appeal 

Fee . . . 

Local licensing authorities; hours for sales; restaurants 

License fee 

Package stores; separate stores 

Manufacturer's license; use by anyone other than the licensee . 
Number of licenses for package goods; stores in Boston 

Regulations; interstate commerce 

State election; city election; sales 

Summer licenses ; estimates ; amendments 

Wholesalers' and importers' licenses ; vote of town .... 
Alcoholic Beverages Control Commission; authority; regulation of prices 

Archives Division, Chief of; retirement 

Beano games; license; National Guard 

Boston Elevated Railway Company; assessment upon the city of Revere 

operating deficiency 

Certified public accountants; registration; information to the public; ap 

plicants for license 

Civil service; chief of police of a town ; acceptance of act 

Disabled veteran; preference 

Employees; city of Fall River 

Labor Relations Commission; classifications 

Quincy City Hospital ; removal; classification 

State Board of Housing 

Transfer; leave of absence; provisional temporaiy employment 

State Prison Colony 

Engineers and firemen at State hospitals; construction of statutes 

Examinations; seniority 

Fire department; reserve firemen 

Laborers ; certification ; position ; prior employment .... 
Corporations and Taxation, Department of; appointments; salary; Gov- 
ernor and Council 

District court; fines; ordinance; motor vehicle . 

Education; vocational training; aid furnished for training outside the 

Commonwealth 

Education, Department of; Advisory Board; incompatible positions 

Employees; receipt of two salaries 

Fish; sales representation; "ocean-fresh" 

Governor; Special Commission to co-operate with the LTnited States Con- 
stitution Sesquicentennial Commission; membership . . . . 
Governor and Council; appointments; salary; Department of Corporations 

and Taxation 

Comptroller; warrant: certificate; approval . 
Contract for construction ; Federal funds 
Contracts of sale; Commission on Administration and Finance 
Salary ranges; Division of Personnel 
Transfer of funds ; extraordinary expenses 
Workmen's compensation; determination 
Grade crossings; orders; amendments .... 
Housing, State Board of; employees; civil service 



31 

118 

117 

84 

41 

83 

28 

100 

42 

142 

143 

92 

36 

139 

25 

63,66 

70 

91 

122 

59 

69 

131 

129 

70 

124 

72 

125 

67 

S3 

93 



133 

27 
108 
120 

76 

75 



53 
42 
79 
32 
73 
95, 126, 134 
50 
58 
70 



P.D. 12. 



147 



Inspector of animals: municipality; appointment .... 

Nomination; approval; appointment 

Insurance; bond to secure repayment of premiums .... 

Deferred annuity contracts; foreign company, employer; employee 

Formation of company; subscriptions for insurance ; license 
Interstate commerce; apples; inspection; storage .... 
Labor and industries; penal institutions; industrial building . 
Labor Relations Commission; employees; civil service; classifications 

Lease; dwelling house ; eviction 

Legislative agent; legislative counsel 

Lord's Day; holiday; publication; computation of time . 

Public entertainment; license; admission 

Mental diseases; institution or private house; schools; licenses 

State hospital; hours of work of employees; autopsy 
Metropolitan District Commission; contract; "change orders''; extra 

Erection of bath house; improvement of location .... 
Metropolitan District Water Supply Commission; contract; bid . 
Motor vehicles; municipal regulations 

Revocation of license; amending statute 

Municipal permit; fee 

Municipality; appropriations; reimbursement 

Private water company; appropriations 

National Guard; death due to accident; lump sum settlement 

License for beano games 

Old age assistance; inmates of incorporated homes .... 

Municipalities: reimbursement 

Prisoners ; county commissioners ; permits to be at liberty 

Public health; sewer; water supply; pollution 

Public officials; annual bonds; statute 

Public utilities ; electric light companies ; consolidation . 

Mortgage note; amount approved 

Water companies' rates in Hingham and Hull .... 

Public Utilities, Department of; jurisdiction to inspect and approve 

tainers for gas 

Public Welfare, Department of; old age assistance; mles; local bureaus 
Public Works, Department of; grade crossings; orders; amendments 

Shade trees; care and custody; State highway 

Special police; municipalities; workmen's compensation 
Retirement system ; compensation ; deductions . 

State police detective 

Superintendent of a State hospital 

Sales representation ; fish 

Savings bank life insurance ; State Actuaiy ; tables of mortality 
Schools; transportation of pupils; private schools 
Reimbursement of town by Commonwealth 

Visiting teachers: lip reading; free lunches 
Search and seizure; State Prison Colony; watch officers 
Shade trees on State highways; care and custody 
Shellfish; certificate; contamination 

Permits; municipal regulation .... 
State armory; municipality; compensation 

Plumbing; local ordinance 

State department or division ; compensation for use 

Use by organizations 

State hospital; employees; nonresidents; compensation 

Superintendent: retirement age 

State police detective; retirement 



work 



38 

90 

25 

9S 

12S 

130 

78 

131 

100 

59 

144 

115 

139 

87 

64 

51 

104 

66 

109 

121 

110 

105 

102 

63, 66 

113 

61 

31 

77 

140 

85 

94 

65 



39 
88 
58 

122 
52 

113 
26 
40 
76 

107 
37 
123, 132 

141 
50 

122 
68 

132 
63 
51 
62 
60 

140 
40 
26 



148 P.D. 12. 



State Prison Colony; employees; transfers; civil service 

Hospital; medical treatment; prisoners; segregation .... 

Watch officers; search and seizure 

State Racing Commission; dog racing; licenses; agricultural fair . 

State Retirement Association; transfer of membership from a county or 

municipal retirement system 

Statute; emergency law; effective date 

Teachers' retirement; credit for prior service; Commonwealth; Metropoli- 
tan District Commission 

Retiring allowance; average salary; deductions 

Service outside the Commonwealth; "State" 

Voter; married woman living apart from her husband .... 
Workmen's compensation; determination; Governor and Council . 

Special police; municipalities 



PAGE 

72 
103 

50 
111 

28 
101 

91 
136 
138 
30 
50 
52 



P.D. 12. 14^ 



RULES OF PRACTICE 

I\ Interstate Rendition, 

Evory application to the Governor for a requisition upon the executive authority 
of any other State or Territory, for the deUvery up and return of any offender 
who has fled from the justice of this Commonwealth, nmst he made bj^ the district 
or prosecuting attornej^ 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 l)e properly spelled. 

(6) That, in his opinion, the ends of public justice require that the alleged 
criminal be brought to this Commonwealth for trial, at the public expense. 

(f) 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. 

ig) That the application is not made for the purpose of enforcing the collection 
of a debt, or for an}^ private purpose whatever; and that, if the requisition appUed 
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. 

(0 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 cf)mmon law, or any penal code or statute, the affida^'it 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 recjuested to be made, must he given. The fact 
that the alleged criminal was in the State where the alleged crime was committed 
at the time of the commission thereof, and is found in the State upon which the 
requisition was made, shall be sufficient evidence, in the absence of other proof, 
that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in duplicate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and circum- 
stances showing the commission of the crime charged, and that the accused peri^e- 
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 



150 P.D. 12. 

requisition, such complaint 'to be accompanied by affidavits to the facts consti- 
tuting the offence charged by persons having actual knowledge thereof, and that 
a warrant has been issued, and duplicate certified copies of the same, together 
with the returns thereto, if any, must be furnished upon an application. The 
affidavit or affidavits should contain sufficient facts to make out a prima facie case 
of guilt, and should not be a reiteration of the form of the complaint nor contain 
conclusions of law. 

5. The official character of the officer taking the affidavits or depositions, and 
of the officer who issued the warrant, must be duly certified. 

6. Upon the renewal of an application, — for example, on the ground that 
the fugitive has fled to another State, not having been found in the State on which 
the first was granted, — new or certified copies of papers, in conformity with the 
above rules, must be furnished. 

7. In the case of any person who has been convicted of any crime, and escapes 
after conviction, or while serving his sentence, the application may be made by 
the jailer, sheriff, or other officer having him in custody, and shall be accom- 
panied by certified copies of the indictment or information, record of conviction 
and sentence upon which the person is held, with the affidavit of such person 
having liim 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 mth these rules. 

850-ll-'38. No. 5524. 



JUL 2 4 '41 W.P4.