Public Document No. 12
STfje CommonfcDealtf) of jWas;s(acf)iisJetts(
REPORT
OF THE
ATTORNEY GENERAL
FOR THE
Year Ending November 30, 1938
Public Document
No. 12
^fje CommontDealtf) of iWasisiactusiettsf
REPORT
/\ I OF THE
ATTORNEY GENERAL
'T-t
FOR THB
Year Ending November 30, 1938
%
850 3-'40. D 910.
MAY 21 1940
STATE HOUSE, SOSICil
MASS. OFFICIALS
^\)t Commontoealtf) of jHasisJacfjugetts
Department of the Attorney General,
Boston, January 18, 1939.
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, 1938.
Very respectfully,
PAUL A. DEVER,
Attorney General.
4
A41t
A.
Ki)t Commontoealtl) o! iilasisiacfjusietts;
DEPARTMENT OF THE ATTORNEY GENERAL
State House.
Attorney General.
PAUL A. DEVER.
Secretary to the Attorney General.
John E. Hurley.
Assistants,
James J. Ronan. ^
Edward 0. Proctor.
J. Burke Sullivan. ^
Roger Clapp.
John S. Derham.
Arthur V. Sullivan.
Maurice M. Goldman.
Edward McPartlin.
Daniel J. Doherty. ^
Walter W. O'Donnell.
Raymond H. Favreau.
James J. Bacigalupo.
Raymond E. Sullivan.
William J. Landergan.
George W. O'Hare.^ , »
Edward A. Pecce. ^
Louis A. Novins. ^
Mary Sienkiewicz Dumas.
Director of Division of Collections.
Edward I. Rasnick.
Chief Law Clerk to the Attorney General.
Harold J. Welch.
1 Resigned July 6, 1938. * Appointed Dec. 1, 1937.
2 Appointed Aug. 3, 1938. » Rggigngfj March 31, 1938.
'Appointed Nov. 1, 1938. • Appointed April 1, 1938.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Fiscal Year.
General appropriation for 1938 $154,500 00
Balance brought forward from 1937 appropriation, deficiency and
transfers 11,504 43
Appropriation for small claims 8,000 00
Appropriation under G. L. (Ter. Ed.) c. 12, § 3B . . . . 12,000 00
$186,004 43
Expenditures.
For salary of Attorney General $8,000 00
For salaries of assistants and others 143,435 91
Incidentals 12,859 17
For small claims 7,954 96
For claims under G. L. (Ter. Ed.) c. 12, § 3B 11,996 09
Total expenditures $184,246 13
Balance $1,758 30
Financial statement verified.
Approved
GEO. E. MURPHY,
Comptroller
tlTfje Commontuealti) of illas!£iacf)us;ettsi
Department of the Attorney General,
Boston, January 18, 1939.
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, 1938, to the number of 8,295 are tabulated below:
Corporate franchise tax cases ......... 1,310
Extradition and interstate rendition ........ 132
Land Court petitions ........... 95
Land damage cases arising from the taking of land:
Department of Public Works ........ 430
Department of Mental Diseases ........ 2
Department of Conservation ........ 4
Department of the Adjutant General ....... 2
Metropolitan District Commission ....... 49
Metropolitan District Water Supply Commission .... 37
Miscellaneous cases ........... 544
Petitions for instructions under inheritance tax laws .... 59
Public charitable trusts. .......... 501
Settlement cases for support of persons in State hospitals ... 17
All other cases not enumerated above, which include suits to require the
filing of returns by corporations and individuals and the collection
of money due the Commonwealth ....... 5,085
Indictments for murder, capital cases ....... 28
Disposed of ........... 19
Now pending 9
6 P.D. 12.
Investigations by the Comptroller.
The Comptroller has been given very important duties to perform in connec-
tion with claims and demands made against the Commonwealth.
He is required to certify to their correctness, and, if found satisfactory, to put
them on the Governor's warrant for payment. By G. L. (Ter. Ed.) c. 7, § 13, he
is required to examine all accounts and demands against the Commonwealth, with
certain designated exceptions, and his certificate is a prerequisite to inclusion of
any items in the budget, G. L. (Ter. Ed.) c. 29, § 18.
He is, however, not given adequate powers to aid him in making the required
examination or in determining whether he should or should not place a payment
upon a warrant or certify relative to the propriety of charges in accounts and
demands upon which he is required, under said section 13, specifically to report
to the Governor and Council. The only power which he is given, and then onl>
in connection with his duty to report specially to the Governor and Council with
relation to certain specified forms of demands, is in said section 13, which re-
quires affidavits that articles have been furnished, services rendered and ex-
penses incurred as claimed.
In order that he may perform these duties efficiently and be able to arrive at a
correct conclusion as to the facts involved in claims and demands against the
Commonwealth, many of which are extremely complicated, I recommend that he
be given power to hold hearings, summon witnesses and to require the production
of books and other documents, similar to the power given to the Commissioners
of the Department of Administration and Finance and to the Director of Per-
sonnel and Standardization in making special examinations into the management
of finances of the departments, officers or commissions, at the request of the
Governor, under section 11 of said chapter 7.
Administratiye Law.
Because of the growing multiplicity of Federal and State boards and commis-
sions there has been a significant advance in the last few years in the develop-
ment of administrative law. The law defining the duties and powers of such
commissions has been greatly clarified. The importance and need of educating
the bar upon this subject have recently been manifested by the course on admin-
istrative law sponsored by the Bar Association of the City of Boston at Cam-
bridge, which was widely attended by members of the bar of Greater Boston.
I have been advised that the several administrative departments of the Com-
monwealth have already submitted complete data from their departments to
Fernald Hutchins, Esq., counsel to the Senate, who has been making a special
study of the subject.
The administration of my office in the last few years has brought me in touch
with many administrative problems of the departments, particularly as to when
hearings are necessary, the requisites attendant upon such hearings to comply
with the requirements of due process of law, and the scope and method of the
review by the courts of decisions made by the several departments.
It is my opinion that this entire subject matter should be referred to a recess
commission, which would have the most expert legal advice procurable in the
study of this question, with the ultimate purpose of creating some uniformity of
practice in the various State boards and commissions and in the method and ex-
tent of the review of their decisions.
P.D. 12 7
Investigation of Gifts to Public Charities.
An investigation has been undertaken into the accounting for and disposition
of gifts to pubhc charities, and shows the following results:
Approximately 250,000 wills on file in this Commonwealth have been carefully
examined, and from these abstracts have been made of some 25,000 estates con-
taining gifts for charitable purposes. These estates were found to contain slightly
over 40,000 such gifts, and a permanent, individual record of each such gift has
been made. A letter was then sent to each of the 10,000 beneficiaries involved,
requesting information as to whether or not the beneficiary had received the gift,
and, if so, what was being done with it. Since approximately 2,700 of these bene-
ficiaries did not respond to the first letter, a second letter seeking this information
was sent to them. To date, approximately 90 per cent of the beneficiaries have
rephed, leaving 1,000 letters mianswered. These are currently being investigated
in an effort to determine the reason why no replies were received.
As a result of these 10,000 letters, many requests for more information were
received by this Department, stating that the beneficiaries were totally unaware
of any such gifts. In order to supply this information, more than 1,200 bequests
were carefully examined and checked.
In a preliminary survey, there have been examined 900 estates in which trustees
had been appointed by the court. As a result of this investigation, it was neces-
sary to file some 75 petitions throughout the Commonwealth to have such
trustees bring their accounts up to date. In about 400 of such estates the Attor-
ney General filed his appearance so that in the future, before accounts in such
estates are allowed, this Department will receive copies, and, after examination,
may be heard in court if necessary on whether or not such accounts should be
allowed.
There is now a permanent index of the names of the estates from which ab-
stracts were made and also a permanent card file of the individual gifts, both
restricted and unrestricted, numbering about 45,000. A statistical report of the
different types of gifts, their purposes, their present condition, and their bene-
ficiaries, is being prepared.
As a direct result of this investigation, it is estimated that unused gifts aggre-
gating more than five millions of dollars have been in some way affected, so that
either by negotiations with the Attorney General or through court petitions the
trustees are now putting to use funds which they have in their custody. In at
least 150 cases, affirmative action on the part of the Attorney General is neces-
sary in order to force compliance with the intentions of the testators. This in-
vestigation is, therefore, entering a phase where still more complete and better
results will be shown.
Regulation of Private Trade Schools.
A serious and dangerous situation has arisen in the conduct of certain private
trade schools now operating within this Commonwealth. At the present time
there is no governmental regulation of such schools. Any person or group of per-
sons may establish and maintain them and many have been set up in
Massachusetts. Their proprietors, motivated solely by a desire for private
gain, regularly seek out recent graduates from high schools to whom they hold
out glittering promises of rich rewards to follow enrollment in their schools.
These youths readily embark upon a course of study, designed, they are told, to
8 P.D. 12.
fit them for some trade, and, more especially, to enable them to be placed in
lucrative positions. But because of lack of governmental regulation, these schools
are generally inedaquately equipped, improperly staffed and poorly maintained.
Upon graduation the unfortunate student soon discovers that the promises of
employment were but inferential and that not only is he unable to secure em-
ployment, but, further, is not properly equipped to engage in the trade for which
he believed he was being trained. In this manner, the youths of this Common-
wealth are annually being mulcted of thousands of dollars which they can ill
afford to lose and are wasting years in fruitless endeavors.
I therefore recommend that remedial legislation be enacted to curb this wide-
spread abuse and to establish governmental supervision and regulation of such
schools.
Investigation into the Operations of the So-Called Service Companies.
As a result of numerous complaints made to this Department, an investigation
was undertaken into the activities of the so-called Service Companies engaged
by many employers in this Commonwealth. Our investigation discloses that there
has been a deliberate attempt to evade the Workmen's Compensation Act, and to
deprive many hundreds of thousands of employees in Massachusetts of the law-
ful benefits provided for them and their dependants by that act.
Many companies have sprung up in this Commonwealth, but their methods of
operation are singularly similar. The employer engages the services of a "Service
Company", which contracts to adjust all claims arising against the employer by
reason of injuries to workmen occurring in the course of their employment. In
order to sell such services, these companies promise that the total amount paid to
employees will not exceed the amount of premiums the employer would otherwise
be forced to pay if he had insured against accidents with an insurance company
regularly engaged in such business.
If a worker is thereafter injured the Service Company immediately sends one
of its employees to visit him and attempt to induce him to sign away his rights
for the smallest amount possible. Under the present laws of this Commonwealth
there is no supervision whatsoever over these settlement agreements. The worker
is generally forced to settle at the very low figure set by the "Service Company",
for he knows that if he were to reject that offer and proceed to sue at law, while
he might eventually receive just compensation for his injuries, nevertheless, he
would in all probability lose his position, for it is his own employer who pays this
sum, and not an insurance company.
The agreement which the employee signs contains a clause to the effect that
for the compensation paid to the employee, the latter discharges the employer of
all claims by reason of the accident. In this way, if at some later time it is dis-
covered that the accident caused injuries which were much more serious than
were first diagnosed, the employee must content himself with the pittance which
he was first given.
Further, if the agreement provides for payments to the employee while dis-
abled, a provision is inserted in the agreement to the effect that a physician of
the Service Company's own choosing shall be the sole judge of whether or not the
employee is still disabled.
It is because of this unscrupulous method of settlement that so many instances
of injustice and oppression to workei's in this Commonwealth have been brought
to my attention.
P.D. 12 9
I therefore recommend that remedial legislation be enacted to the end that the
beneficial provisions of our present Workmen's Compensation Act may be ex-
tended to all employees in this Commonwealth, and that all settlements for in-
juries sustained by workers during the course of their employment shall be ef-
fected under the supervision of the present Industrial Accident Board.
Small Loan Agencies.
As a result of a continued series of complaints to this Department, I again
direct the attention of the Legislature to the great injustices which are today
taking place because of the limited applicability of our present small loan act
(G. L. c. 140, § 96). According to the provisions of this act, small loans have
been defined as loans of three hundred dollars or under.
Small loan agencies are permitted to advertise to the general public that they
are under the supervision of the Department of Banking and Insurance. While
such advertisements are true in so far as loans under three hundred dollars are
concerned, nevertheless, they are absolutely misleading where loans in excess of
such sum are concerned. The necessitous citizen, however, hard-pressed by
financial cares, is easily deluded by such representations into believing that all
loans made by such agencies come within the supervision of the Department of
Banking and Insurance. Such, however, is not the case. As a result, the incen-
tive is great on the part of such loan agencies to force the borrower under many
and devious subterfuges to accept a loan in excess of three hundred dollars, thus
permitting them to charge whatever rate of interest they desire.
Because of the hardships now being worked by the present law, I again recom-
mend the enactment of legislation changing the amount of three hundred dollars
to at least five hundred dollars.
Insurance Advisers or Counsel
As a result of numerous complaints the attention of this Department has been
directed to the activities and practices of certain individuals and corporations
which hold themselves out to the public and advertise themselves to be so-called
insurance advisers or policyholders' counsel; and the activities of these individ-
uals and corporations indicate the necessity for and expedience of legislation to
require that persons or corporations engaging in the business of giving counsel or
advice to holders of insurance policies, or advertising or holding themselves out
as being so engaged, shall be licensed by the Commissioner of Insurance.
All persons acting as insurance agents or brokers, as defined by G. L. (Ter.
Ed.) c. 175, § 162, are now required to be licensed by the Commissioner of Insur-
ance. The activities and practices of these so-called advisers do not in many
cases bring them within that definition, but the same general reasons for requir-
ing insurance agents or brokers to be licensed seem to apply with equal force to
such advisers.
It would appear that the public should have the same protection of a license
law in respect to these advisers as to brokers or agents. In many instances these
advisers induce a policyholder to surrender a policy which has been in force for
many years and to replace it with another poHcy, and charge a fee for this advice
based on a percentage of the cash surrender value of the first policy, sometimes
as high as twenty-five per cent, although the policyholder in all such cases could
have secured the change directly with the insurance company without the pay-
10 P.D. 12.
ment of any percentage of the cash surrender value. Therefore, this appears to
be a business open to abuses, which offers to unscrupulous persons an easy
method of exploiting the ignorance and credulity of certain classes of policy-
holders. The persons apt to apply to one of these advisers are generally holders
of small policies, and may be imposed upon to surrender a poHcy which may en-
tail a great loss. The fact that an adviser acts for the policyholder is no reason
why he should not be licensed and his business supervised, for an insurance
broker is ordinarily the agent of the insured, and is required to be licensed, as
are persons who act as adjusters of fire losses for policyholders.
I therefore recommend the enactment of legislation to define an insurance ad-
viser and to provide that such person or corporation shall be licensed by the
Commissioner of Insurance, and his or its activities shall be regulated by the De-
partment of Insurance.
Collection of Taxes by Deputy Tax Collectors and Constables.
As a result of the investigation by this Department into the matter of abuse
of process by deputy tax collectors and constables (see Report of the Attorney
General, 1937, pp. 9-12), the General Court enacted a statute providing for the
suspension of certificates of registration in cases of non-payment of motor excise
taxes on registered vehicles (St. 1938, c. 492).
This statute, while of assistance in some cases, does not adequately safeguard
the liberties of the citizens of this Commonwealth from unnecessary arrests and
harassments by deputy tax collectors and constables. This is because much doubt
has arisen due to the wording of the new law. In many complaints received by
me it has been clearly demonstrated that this new act has been utilized by un-
scrupulous deputy tax collectors and constables, not as a substitute method of
collecting motor vehicle excise taxes, but, solely, as an additional remedy and
weapon. The result in these cases has been that the taxpayer, already oppressed
by the abuses revealed in my previous investigation, is now subject to even
greater oppression. This act has been used by some deputy tax collectors and
constables as a means of exacting, more surely than of old, illegal and excessive
fees under the new threat that unless such excessive fees are paid the necessary
certificate will not be sent to the Registrar of Motor Vehicles and the registra-
tion of the motor vehicle of the unfortunate taxpayer will be suspended.
The situation is acute and of great importance to the citizens of this Common-
wealth. I therefore recommend that additional legislation be enacted to the end
that the collection of motor vehicle excise taxes shall no longer be enforced by
arrest and imprisonment.
I further request that the Legislature liberalize the law relating to the collec-
tion of poll taxes and old age assistance taxes so that unnecessary and promiscu-
ous arrests will be prevented and deputy tax collectors and constables will be
prevented from unnecessarily adding charges to the original tax in ofder to in-
crease their own personal gain.
Advertising Accounts for Sale.
I again repeat my recommendation of last year that legislation be enacted to
prevent the advertising of "accounts for sale" wherein the names and addresses
of the debtors and the nature and amount of the alleged indebtedness are listed.
"Hie use of such methods by agencies is highly reprehensible. It was adopted to
P.D. 12 11
shame the debtor into paying even an unjust obhgation, and tends to deprive
him of a fair opportunity to set up a legal defence. (See Reports of the Attor-
ney General , 1935, 1936, 1937, pp. 16, 9, 14, respectively.)
Taking Property for Public Use.
I again repeat my recommendation of last year that certain changes be made
in the present laws relating to the taking of property for public use. (See
Report of the Attorney General, 1937, p. 16.)
In many cases, due to circumstances entirely beyond the control of the owner
of property, suit is not begun within the statutory period for damages by reason
of the taking of property belonging to such owner for public use. In other cases,
the delay in bringing suit seems justified, and the owner should not forever after
be barred from obtaining just compensation for the damages occasioned to him.
Of course, it is true that in many of the claims now pending against the Com-
monwealth no adequate reason exists why suit should not have been begun within
the time provided under the present laws. But where the claims are of the for-
mer classes, then it seems only just and equitable that some provision be made
for bringing such suits in our courts.
I therefore recommend that legislation be enacted in accordance with a draft
of a bill which I am submitting.
Suggested Amendments to Chapter Seventy-Nine 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 sixteen of chapter seventy-nine of the General Laws, as most recently
amended by chapter one hundred and eighty-five of the acts of the current year,
is hereby further amended by adding at the end the following new paragraph: —
If a petition has not been filed under section fourteen within the time limited
herein by any person whose property has been taken or injured, the superior
court for any county in which such a petition might properly have been filed
may, for just cause and in order to prevent injustice, allow such petition to be
filed at any time within six years after the right to damages has vested.
Official Opinions.
The Department has rendered 154 official opinions.
An Appreciation.
In conclusion, I want to pay tribute to the zeal, abihty, 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 haA^e all co-operated in a sincere
effort to serve the Commonwealth.
Respectfully submitted,
PAUL A. DEVER,
Attorney General.
12 P.D. 12.
Details of Capital Cases.
1. Disposition of indictments pending Nov. 30, 1937.
Northern District (Middlesex County cases: in charge of District Attorney
Warren L, Bishop).
Frank DiStasio and Anthony DiStasio.
Indicted May, 1935, for the murder of Daniel Crowley, at Hudson, on May 6,
1935; arraigned May 9, 1935, and each pleaded not guilty; trial October, 1935;
verdict of not guilty by order of the court as to Anthony DiStasio, and verdict
of guilty of murder in the first degree as to Frank DiStasio; April 7, 1936,
rescript "Judgment on the verdict" on claim of appeal of Frank DiStasio;
May, 1936, Anthony DiStasio indicted as accessory before the fact to murder
in the first degree; arraigned May 25, 1936, and a plea of not guilty was
ordered by the court upon refusal of the defendant to plead; trial June, 1936;
verdict of guilty of being accessory before the fact to murder in the first
degree; 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 peti-
tion for certiorari filed by Anthony DiStasio denied by the Supreme Court
of the United States on Dec. 20, 1937; thereupon each sentenced to death by
electrocution, which sentences were carried out Feb. 9, 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 electrocution; March 29, 1938, rescript "Judgment on the verdict" on claim
of appeal; May 5, 1938, petition for certiorari denied by the Supreme Court
of the United States; May 21, 1938, sentence carried out.
Northwestern District (in charge of District Attorney David H. Keedy).
Frank Grabowski.
Indicted in Franklin County, November, 1937, for the murder of Anthony Rug-
geri, at Greenfield, on July 28, 1937; arraigned Nov. 15, 1937, and pleaded not
guilty; trial January, 1938; verdict of guilty of murder in the second degree;
thereupon sentenced to State Prison for life.
Southeastern District (in charge of District Attorney Edmund R. Dewing).
Oscar Bartolini.
Indicted in Norfolk County, September, 1936, for the murder of Grayce M.
Asquith, at Weymouth, on September 20, 1936; arraigned Oct. 30, 1936, and
pleaded not guilty; trial September, 1937; verdict of guilty of murder in the
first degree; thereupon sentenced to death by electrocution; Nov. 10, 1937,
motion for new trial denied; March 2, 1938, rescript "Judgment on the ver-
dict" on claim of exceptions; June 16, 1938, motion for new trial denied; com-
mutation of sentence of death to imprisonment in the State Prison for life.
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; trial March, 1938; dur-
ing the trial each retracted former plea and pleaded guilty to murder in the
second degree, which pleas were accepted; thereupon each sentenced to State
Prison for life.
r.D. 12 13
Suffolk District (Suffolk County cases: in charge of District Attorney William 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 murder in the second degree; thereupon sentenced to State Prison
for life; Dec. 30, 1937, rescript "Judgment affirmed" on claim of appeal.
Joseph Pimental.
Indicted September, 1937, for the murder of Chester John Harris, on Oct. 30,
1936; arraigned Sept. 15, 1937, and pleaded not guilty; trial January, 1938;
during the trial retracted former plea and pleaded guilty to murder in the
second degree, which plea was accepted; thereupon sentenced to State Prison
for life.
2. Indictments found and dispositions since Nov. 30, 1937.
Middle District (Worcester County cases: in charge of District Attorney Owen
A. Hoban).
William W. Wally and Edward Adamson.
Indicted May, 1938, for the murder of Erick W. Cederberg, at Worcester, on
March 20, 1938; arraigned May 19, 1938, and each pleaded guilty to murder in
the second degree, which pleas were accepted; thereupon each sentenced to
State Prison for life.
Northern District (Middlesex County cases: in charge of District Attorney
Warren L. Bishop).
Frederick H. Boudreau and Edward C. Buckley, Jr.
Indicted April, 1938, for the murder of Lewis F. Lamson, at Ashby, on March 5,
1938; arraigned April 7, 1938, and each pleaded not guilty; May 6, 1938, each
retracted former plea and pleaded guilty to murder in the second degree,
which pleas were accepted; thereupon each sentenced to State Prison for life.-
John Mack.
Indicted February, 1938, for the murder of Michael O'Keefe, at Tewksbury, on
Feb. 4, 1938; arraigned Feb. 9, 1938, and entry of a plea of not guilty ordered
by the court; trial April, 1938; verdict of not guilty by reason of insanity;
thereupon committed to Bridgewater State Hospital for life.
Northwestern District (in charge of District Attorney David H. Keedy).
John Paul Bathelt, Jr.
Indicted in Hampshire County, June, 1938, for the murder of Charles Morris, at
South Hadley, on June 21, 1937; arraigned July 13, 1938, and pleaded guilty
to murder in the second degree, which plea was accepted; thereupon sentenced
to State Prison for life.
Samuel D. Pettyjohn.
Indicted in Hampshire County, June, 1938, for the murder of Genalvin M. Petty-
john, at Northampton, on June 15, 1938; arraigned July 1, 1938, and pleaded
guilty to manslaughter, which plea was accepted; thereupon sentenced to the
house of correction at Northampton for the term of two years.
Suffolk District (Suffolk County cases: in charge of District Attorney William J.
Foley).
Theodore Petow.
Indicted December, 1937, for the murder of Elsie Drowne, on Nov. 26, 1937;
arraigned Dec. 20, 1937, and pleaded not guilty; trial May, 1938; during the
14 P.D. 12.
trial retracted former plea and pleaded guilty to manslaughter, which plea
was accepted; thereupon sentenced to State Prison for not more than twenty
years and not less than eighteen years.
Albert B. Wilson,
Indicted July, 1938, for the murder of Estelle Munce, alias, on June 16, 1938; ar-
raigned Sept. 13, 1938, and pleaded not guilty; trial October, 1938; during the
trial retracted former plea and pleaded guilty to murder in the second degree,
which plea 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).
Oliver Alden Thayer.
Indicted January, 1938, for the murder of Katharine Thayer, at Topsfield, on
Dec. 14, 1937; Jan. 24, 1938, committed to Bridgewater State Hospital.
Northern District (Middlesex County cases: in charge of District Attorney
Robert F. Bradford).
Wallace W. Green, Walter St. Sauveur and Henry Richards.
Indicted June, 1938, for the murder of William Phillips, at Somerville, on May
31, 1938; Green and St. Sauveur arraigned July 1, 1938, and Richards June 29,
1938, and each pleaded not guilty; Sept. 26, 1938, entry of nolle prosequi as
to Richards; trial of Green and St. Sauveur September, 1938; verdict of
guilty of murder in the first degree as to each; thereupon sentenced to death
by electrocution; claim of appeal of each pending.
Francisco Loprete.
Indicted February, 1938, for the murder of Bruno Micelli, at Cambridge, on
March 27, 1937; committed to Bridgewater State Hospital.
Southeastern District (in charge of District Attorney Edmund R. Dewing).
Frank Laprete.
Indicted in Norfolk County, April, 1938, for the murder of Floriano Clericerzio
and Isaac Fry, at Medfield, on Jan. 22, 1938; committed to Bridgewater State
Hospital.
Sufifolk District (Suffolk County cases: in charge of District Attorney William J.
Foley).
George E. Barnett, alias.
Indicted November, 1938, for the murder of Joseph P. Gallagher, on Sept. 27,
1938; arraigned Nov. 23, 1938, and pleaded not guilty.
George T. Knox.
Indicted November, 1938, for the murder of Helen Dale, on May 22, 1937.
Western District (in charge of District Attorney Thomas F. Moriarty).
Martha Ottenhiemer.
Indicted in Hampden County, May, 1938, for the murder of Lester Vining, at
Southwick, on April 13, 1938; committed to Northampton State Hospital.
P.D. 12 15
OPINIONS.
Prison Officer — Retirement — Age.
Dec. 1, 1937.
Hon. Arthur T. Lyman, Commissioner of Correction.
Dear Sir : — You have asked me, in effect, whether or not a cor-
rection officer at the State Prison, who entered the State service
on November 5, 1923, after employment for some fourteen years
as a county prison officer, and who, from the facts as you state
them, was fifty-six years of age when he entered the service of
the Commonwealth, is required, under the provisions of G. L, (Ter.
Ed.) c. 32, § 2 (2), to leave the service of the Commonwealth when
he attains the age of seventy.
I answer your inquiry in the affirmative. The case concerning
which you write is governed by the opinion given by one of my
predecessors in office, on February 23, 1929 (VIII Op. Atty. Gen.
547), with which I concur, that a prison officer in substantially the
same situation as the one described in your letter must leave the
service upon attaining the age of seventy.
The person to whom you refer entered the service of the Com-
monwealth in its penal institutions, as you advise me, in 1923. He
was then over fifty-five years of age. Being then over fifty-five
years of age he was not eligible to membership in the State Retire-
ment Association or entitled to its benefits, but he was subject to
the provisions of G. L. (Ter. Ed.) c. 32, § 2 (2), to the effect that
"no such person (employee) shall remain in the service of the com-
monwealth after reaching the age of seventy." This provision
applies, as part of the comprehensive scheme for the regulation
and retirement of persons in the service of the Commonwealth, to
all such persons alike, although an exception is made in favor of
"any employee who is or will be entitled to a non-contributory pen-
sion from the commonwealth." G. L. (Ter. Ed.) c. 32, § 2 (3). The
person mentioned in your letter does not fall within this exception,
as it cannot presently be said that he either is or will be entitled
to a pension from the Commonwealth, within the meaning of said
section. He is entitled to be retired and to the benefits of the pen-
sion provided for penal institution employees under G. L. (Ter.
Ed.) c. 32, §§ 46-48, inclusive. But inasmuch as it is optional with
the Commissioner of Correction whether he will retire him and
place him upon the pension roll, he does not, as I have said and
as was said in the previous opinion to which I have referred, fall
within the exception.
It is the duty of the secretary of the Board of Retirement to call
to your attention, as I understand he has done, the necessity for
the retirement of the person mentioned in your letter upon his at>
taining the age of seventy. Of course, action may be taken before
16 P.D. 12.
then looking to his retirement under the provisions of said sections
46 to 48 ; but in any event, he would have to leave the service upon
attaining the age of seventy. See also V Op. Atty. Gen. 634.
Very truly yours,
Paul A. Dever, Attorney General.
Motor Vehicles — Main Highivays — Regulations.
Dec. 2, 1937.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — You have asked my advice, in effect, as to whether
or not your department has authority to pass upon a regulation
made by the selectmen of Wellesley excluding certain motor vehi-
cles from two ways, each of which,' you advise me, appears to you
to be a main highway.
The Attorney General, of course, does not pass upon questions
of fact. It is made plain, by the provisions of G. L. (Ter. Ed.)
c. 90, § 18, that no municipal regulation "shall be valid which ex-
cludes motor vehicles from any state highway or from any main
highway leading from any town to another." The prohibition of
this section applies to the exclusion by municipal regulation of any
motor vehicles from State highways or from the main highways
mentioned therein. Accordingly, if you determine in any instance
that such a regulation applies to a main highway leading from
any town to another, you will have no authority to approve a regu-
lation excluding motor vehicles therefrom.
A "main highway leading from any town to another," as those
words are used in said section 18, means a highway which is not
completely within the boundaries of a single town. It must extend
at least from one town into another, though it is not essential that
it should run for a greater distance. Whether or not any partic-
ular highway running from one town to another may fairly be said
to be a "main" highway is, as I have already suggested, principally
a question of fact to be determined by your Commission in the ex-
exercise of sound judgment.
I believe this statement of applicable principles of law will ad-
vise you sufficiently so that you can deal with municipal regulations
of the kind noted.
Assuming the facts relative to the particular matter now before
you to be as stated in the last paragraph of your letter, I am of
the opinion that the selectmen of Wellesley had no authority to
pass the regulation in question, and that your Commission has,
consequently, no authority to pass upon it.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 17
Civil Service — Municipal Employee.
Dec. 2, 1937.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir : — You have asked my opinion as to whether or not
the clerk employed by the Everett Stadium and Athletic Field Com-
mission is classified under civil service.
Apparently this clerk is employed as a municipal employee by
said Commission under the provisions of St. 1927, c. 319. In rela-
tion to his civil service status, let me say that the mere fact that
said clerk is paid by the municipality, or a political agency on its
behalf, from moneys received in a particular manner and desig-
nated by the Legislature for use in a special way, which would
include the payment of such clerk, has no effect to deprive such
clerk of the protection of the civil service laws and regulations
to which other employees of the same municipality are entitled.
Very truly yours,
Paul A. Dever, Attorney General.
State Librarian — Increase in Salary — Appropriations.
Dec. 7, 1937.
His Excellency the Governor, and the Honorable Council.
Gentlemen: — I am in receipt from Your Excellency and the.
Honorable Council of a letter, with attached communications,
showing that the Trustees of the State Library voted on October 6,
1937, to increase the salary of the State Librarian from $5,700 to
$7,000. The letter is as follows :—
"At a meeting of the Governor and Council held December 1,
1937, consideration was given to the attached communication from
James F. Ballard, Chairman of the Board of Trustees of the State
Library, together with a communication, also attached, from
Charles P. Howard, Chairman of the Commission on Administra-
tion and Finance, both communications relating to the salary of
the State Librarian.
The Governor and Council request your opinion as to whether
they may lawfully grant the salary increase requested."
The salary of the State Librarian had previously been fixed by
the said Trustees at $5,700, and the Legislature, by a special item
in the appropriation bill for 1937 (St. 1937, c. 234, item 174),
appropriated the exact sum of $5,700 "for personal services of the
librarian."
G. L. (Ter. Ed.) c. 6, § 35, provides: —
"The governor, with the advice and consent of the council, shall
appoint a librarian of the state library, who shall hold office during
their pleasure and shall receive such salary as may be fixed by the
trustees of said library with the approval of the governor and
council."
18 P.D. 12.
The authority to fix the salary of the State Librarian has there-
fore been vested by the General Court in the said Trustees, subject,
however, to the approval of the Governor and Council, and, by
necessary implication, subject to the provisions of the General
Laws applicable to officers and boards of the Commonwealth gen-
erally in connection with increases in salaries. Such provisions
limiting the exercise of the authority to fix salaries, when such
fixation is in the nature of an increase, are set forth in G. L. (Ter.
Ed.) c. 29, §§ 26 and 27. In effect these last-named provisions
prohibit any officer or board from increasing a salary unless a suf-
ficient appropriation to cover the same, as increased, has been
made by the General Court.
This provision provides one of those checks which the legislative
department of the government possesses with relation to appoin-
tive authority vested in the executive department. Said section
27 reads, in part, as follows : —
"No public officer or board shall incur a new or unusual expense,
make a permanent contract, increase a salary or employ a new
clerk . . . unless a sufficient appropriation to cover the expense
thereof has been made by the general court . . ."
Section 26 provides, in part : —
"Expenses of offices and departments for compensation of of-
ficers, members and employees and for other purposes shall not
exceed the appropriations made therefor by the general court. No
obligation incurred by any officer or servant of the commonwealth
in excess of the appropriation for the office, department or insti-
tution which he represents shall impose any liability upon the com-
monwealth."
Inasmuch as the appropriation made by the Legislature for the
salary of the State Librarian for the year 1937 was only $5,700,
there is no applicable appropriation from which he could be paid
the proposed increase in salary for the remainder of the current
}/ear, nor could the proportional part of the increase be paid for
the months of 1938 prior to action on the subject by the then Legis-
lature, because officers having charge of expenditures are author-
ized to continue expenditures prior to the action of the Legislature
in any year only at the rate authorized by the appropriations for
the preceding fiscal year.
The rate authorized by appropriation in 1937 for the salary of
the State Librarian would not enable payment to be made at a
higher rate before an appropriation was passed by the General
Court in the last-named year, under the provisions of said G. L.
(Ter. Ed.) c. 29, § 10, as amended by St. 1936, c. 256, which
reads : —
"Officers or departments having charge or supervision of expend-
itures in behalf of the commonwealth may continue expenditures
in each year at the rate authorized by appropriations for the pre-
ceding fiscal year, until the general court makes an appropriation
therefor or provides otherwise ; provided, that biennially recurring
expenditures required by law to be made in any year shall be at
P.D. 12 19
the rate authorized by appropriations for the second preceding
fiscal year."
It follows from the foregoing considerations that, until the next
General Court has made an appropriation which would be appli-
cable to the payment of the State Librarian's salary in an amount
at least equal to §7,000, the Board of Trustees may not, under
their authority to fix the Librarian's salary, increase it to |7,000.
This being so, the vote of the Trustees is as a matter of law of no
effect, and the Governor and Council may not properly approve
the increase set forth in said vote.
Very truly yours,
Paul A. Dever, Attorney General.
Commonwealth — Workmen's Compensation — Costs.
Dec. 16, 1937.
Hon. Joseph A, Parks, Chairman, Department of Industrial
Accidents.
Dear Sir : — You have asked my opinion, in effect, as to whether
costs may lawfully be assessed against the Commonwealth under
G. L. (Ter. Ed.) c. 152, § 10, in cases concerning workmen's com-
pensation for its employees, brought before your department under
the provisions of G. L. (Ter. Ed.) c. 152, §§ 69-75, as amended.
I answer your inquiry in the negative.
I.
The applicable portion of G. L. (Ter. Ed.) c. 152, § 10, as
amended by St. 1930, c. 208, provides : —
"If a claim for a review is so filed by the insurer in any case and
the board by its decision orders the insurer to make, or to continue,
payments to the injured employee, the cost to the injured employee
of such review, including therein reasonable counsel fees, shall be
determined by the board and shall be paid by the insurer."
The pertinent words used in the above section are "the cost
to the injured employee . . . shall be paid by the insurer." The
effect of these words as so used has been held by our Supreme
Judicial Court "to establish payment in the nature of costs," and
the burden placed upon the insurer has been said to be "the lia-
bility to pay costs." The court has also stated that "The statute
establishes costs in the sense in which that word has become famil-
iar in actions at law and suits in equity." The Supreme Judicial
Court has nowhere described "the cost" mentioned in said section
10 as being a part of "the compensation" to be received by an em-
ployee, but has said : "... the word 'cost' as used in said chapter
208 is to be regarded as importing into the workmen's compensa-
tion act with respect to cases contested before the reviewing board,
where the employee prevails, the ordinary costs as there defined
incidental to the procedural machinery established for the ascer-
tainment of the amount due to an injured employee. Thus counsel
20 P.D. 12.
fee is designated as cost and falls into that category with other
items. Counsel fees are not infrequently treated as costs." And
again, "It is plain that the statute provides for costs in favor of
the employee, if he prevails before the reviewing board, to be paid
to him by the insurer, . . ." Ahmed's Case, 278 Mass. 180, 185, 186,
189, 192.
The imposition upon the insurer, made by said section 10, then,
is liability for "costs," as that word is ordinarily used in connection
with litigation.
The Commonwealth as sovereign can only be impleaded before
its own tribunals when it has specifically consented to such a course
by Legislative enactment. Even when it has given its consent to
being a party defendant in litigation, it will be deemed to be sub-
ject only to those incidents of such litigation as are necessarily
accepted by the terms in which its consent has been expressed
through legislative enactment. Murdoch Parlor Grate Co. v. Com-
momvealth, 152 Mass. 28, 29; Glickman v. Commonivealth, 244
Mass. 148; Wesson v. Commonivealth, 144 Mass. 60; Milford v.
Commonwealth, 144 Mass. 64.
The consent of the State to be sued being entirely voluntary on
its part, it may prescribe the cases in which and the terms and con-
ditions upon which it may be sued, and how the suit shall be con-
ducted, and the State can be sued only in the manner prescribed
by it. Flagg v. Bradford, 181 Mass. 315.
So where a State consents to be sued in its own tribunals it can
be bound only to the extent of its submission to the jurisdiction,
and only those incidents of practice and procedure which are ex-
pressly set forth or follow by necessary implication attach to liti-
gation which arises as a result of such consent. McArthur Bi^oth-
ers Co. V. Commonivealth, 197 Mass. 137, 141.
Submission by the State to the jurisdiction of a tribunal does
not, in the absence of further legislative expression, of itself indi-
cate a consent by the State to be liable for "costs," and it appears
to be an established principle of law that costs are not recoverable
against the State in its own tribunals, in matters in which it has
consented to be made a party, unless by a statute it has provided
that costs may be recovered against it. United States v. Barker,
(15 U. S.) 2 Wheat. 395; Maryland v. Williams, 101 Md. 529; The
Antelope (25 U. S.) 12 Wheat. 546; Sandberg v. State, 113 Wis.
578 ; Stanleij v. Schwalbij, 162 U. S. 255, 272 ; Pollard v. Breiver,
59 Ala. 130. & :
Statutes providing in general terms for taxation of costs against
parties to litigation do not of themselves authorize an award of
costs against the State. State v. Bartholomew, 111 Conn. 427;
State V. Anderson, 82 Conn. 392; Chicago, Milwaukee & St. Paul
Ry. Co. V. Public Utilities Commission, 47 Idaho, 346; Henley v.
State, 98 Tenn. 665.
That these principles of law were understood and recognized
by the Legislature is apparent from the fact that in enacting G. L.
(Ter. Ed.) c. 258, by which the Commonwealth manifests its con-
sent to become a party defendant as to "all claims at law or in
equity" made against it, it has, in addition to manifesting such
consent in general terms, specifically consented to become liable
P.D. 12 21
for costs, which may be imposed upon it as upon other defendants
before the courts. G. L. (Ter. Ed.) c. 258, § 3.
II.
It is plain that G. L. (Ter. Ed.) c. 152, does not by any of its
terms specifically indicate an intent on the part of the Legislature
that the Commonwealth shall be liable for costs upon an unsuccess-
ful claim for a review, made by it under the terms of said sec-
tion 10.
It does not appear by reasonable implication from the provisions
of said chapter 152 that the Commonwealth has consented to be
liable for costs.
Section 69 of said chapter 152 provides, in its applicable por-
tion: —
"The commonwealth . . . shall pay to laborers, workmen and
mechanics employed by it who receive injuries arising out of and
in the course of their employment . . . the compensation required
by this chapter."
Section 70 of said chapter 152 provides : —
"Procedure under sections sixty-nine to seventy-five, inclusive,
and the jurisdiction of the department shall be the same as under
sections one to sixty-eight, inclusive, and the commonweath or such
county, city, town or district shall have the same rights in proceed-
ings under said sections as the insurer. The state treasurer or the
treasurer or officer having similar duties of such county, city, town
or district shall pay compensation awarded for injury to persons in
its employment upon proper vouchers without further authority."
It is to be noted with relation to this section that it is set forth
that "the commonwealth . . . shall have the same rights in proceed-
ings under said sections (§§ 69-75 and §§ 1-68) as the insurer."
The statute nowhere states that the Commonwealth shall be sub-
ject to all the liabilities which fall upon an insurer under the said
sections. It is also noteworthy that the terms of this section pro-
vide only for the payment by the State Treasurer of "compensation
awarded for injury," thereby excluding authority to pay an award
for any other thing, such as costs, — costs, as shown by the lan-
guage of the Supreme Judicial Court in Ahmed's Case, supra,
being something awarded in addition to compensation and not in-
cluded in the scope of the latter word. These significant provisions
negative any idea which might arise that the provisions of said
section 10, which place upon "the insurer" specifically liability to
pay costs, were intended by the Legislature, by implication, to
apply to the Commonwealth through the force of the general phrase
in said section 70 to the effect that the jurisdiction of the depart-
ment with relation to procedure under sections 69 to 75 should
be the same as under sections 1 to 68, which latter group includes
section 10. Moreover, the power to impose costs is not naturally
comprehended by the word "jurisdiction" or "procedure," and it
would require a forced and unwarranted mode of interpretation to
22 P.D. 12.
hold it to be included within the meaning of the latter words as
they are employed in said section 70.
Statutes claimed to be in derogation of the sovereign's right to
immunity from any form of liability arising out of litigation are
to be construed strictly and not so as to invade the sovereign's
right to such immunity unless plainly intended by the Legislature
to effectuate such end, so that it has been held that a State may
never be made liable for costs by implication alone, in the absence
of specific affirmative statutory provisions creating such liability.
Davis V. Norman, 101 Ky. 599.
However, the statute under consideration, as I have said, neither
specifically nor by implication, even under a broad construction,
appears to impose liability upon the Commonwealth for the "cost"
(the equivalent of "costs") of a review under its section 10.
Very truly yours,
Paul A. Dever, Attorney General.
Civil Service — ComTnissioner — Exayninations.
Dec. 17, 1937.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir : — You have asked my opinion as to "whether or not
the Commissioner of Civil Service has the right to determine who
shall sit on an oral examination; and whether the Commissioner
has the right to designate examiners when such oral examiners are
members of the Division of Civil Service, or whether this authority
rests with the full Board of Civil Service Commissioners."
You have pointed out the applicable provisions of the statutes,
which are as follows : —
G. L. (Ter. Ed.) c. 13, § 2 :—
"The division of civil service shall be under the supervision and
control of a commissioner of civil service, who shall be the execu-
tive and administrative head of the division. . . ."
G. L. (Ter. Ed.) c. 31, § 10: —
"Examinations shall be conducted under the direction of the
commissioner."
G. L. (Ter. Ed.) c. 13, §6: —
"The board may designate persons in the official service of the
commonwealth or of any city, or of any town where chapter thirty-
one is in force, who shall, with the consent of the head of the de-
partment or office in which any such person serves, act as exam-
iners of applicants for any public employment, but no person shall
serve as such examiner when any relative or connection by mar-
riage, within the degree of first cousin, is an applicant."
I answer your question to the effect that the Commission has the
right to designate examiners for examinations if such examiners
F.D. 12 23
are employees of the Division of Civil Service, except when, under
the provisions of G. L. (Ter. Ed.) c. 13, § 6, the Board, which con-
sists of the Commissioner and the Associate Commissioners, shall
have actually designated persons employed in other branches of
the official service to act as examiners in any particular instance.
When this latter action has been taken by the Board, such persons
so designated by it for such particular examinations are to be em-
ployed as designated. When no such action has been taken by the
Board, employees in the Division of Civil Service, designated by
the Commissioner him.self, may be used as examiners.
It is plain that a grant of authority to the head of a division to
direct the conduct of examinations carries with it, by necessary
implication, the power to use as examiners employees subordinate
to him and immediately under his control by reason of their being
in his own division.
It would seem also equally plain that if it were desired by the
Legislature that he should be able to go outside his own division,
and use in the work of his examinations employees ordinarily sub-
ordinate to other divisional heads, it would require a grant of par-
ticular authority for him to do this. The provisions of the various
applicable statutes indicate a legislative adoption of this mode of
statutory determination and resulting construction.
In the original Civil Service Law the implied power to employ
immediate subordinates as examiners was vested in the then Com-
missioners of Civil Service by a legislative enactment that the ex-
amination should be carried on under their direction; and they
were also by particular words given the further specific authority
to designate persons in other branches of the official service to act
as examiners for them in any particular examination. St. 1884,
c. 320, § 20. It is obvious that the grant of authority in said sec-
tion 20 to designate persons "in the official service of the common-
wealth or of any city" refers not to persons in the employ of the
Civil Service Commission, already covered by the implied author-
ity, but only to persons in other divisions of the official service,
because it is provided that such designation shall be made only
"with the consent of the head of the department or office in which
any such person serves."
By the context of the quoted clause the employees of the Civil
Service Commission are excluded from its provisions, since the
necessity of obtaining the consent of the head of the department
manifestly relates only to a division of the public service other than
that of the Commission itself, to which this particular authority
was given in these words.
When the various departments and offices of the Commonwealth
were regrouped and re-established in 1919, by chapter 350 of the
General Acts of that year, the old Commission on Civil Service was
abolished and a new Commission, in the same form as that now
prescribed by G, L. (Ter. Ed.) c. 13, was set up. The same divi-
sion of power to designate persons in the immediate employ of the
Civil Service Commission and the authority to designate other per-
sons as examiners were preserved in this enactment. The power
to direct all examinations was specifically vested in the Commis-
sioner alone. This carried with it, by implication, the power to
24 P.D. 12.
appoint subordinates as examiners, and power to "select special
examiners" was vested in the "board" (§ 66). This power to select
special examiners appears to have been intended by the Legislature
as, in effect, a grant of the old power given to the former Commis-
sion to designate persons outside their own division as examiners.
Such meaning has apparently been given to these words, "select
special examiners," by legislative determination in enacting the
codification of the laws in 1921, because the language used therein
with relation to the particular power of the Board was the old lan-
guage employed in the statute of 1884, which was inserted in place
of the phrase "select special examiners" in G. L. (Ter. Ed.) c. 13,
§ 6.
Reading the three provisions of the Civil Service Law as now set
forth in G. L. (Ter. Ed.) cc. 13 and 31, which are quoted at the
beginning of this letter, and construing them together so as to form
a harmonious whole, it is apparent that the General Court by these
enactments intended, just as it did by the original enactment of
1884, that as to the conduct of examinations in the ordinary course,
which are "under the direction of the commissioner," he might
select persons from his own division as active examiners, except
where the "board" has exercised the power vested in it by G. L.
(Ter. Ed.) c. 13, § 6, and designated persons in other branches of
the official service to act as examiners for any particular examina-
tion or examinations. When the Board has so acted, the persons
whom it has designated are not to be displaced as examiners, in
their proper positions, by the Commissioner. Lacking such action
on the part of the Board for the designation of sufficient examiners
for any particular examination or examinations, the Commissioner
may select, for such positions as examiners as are still open, any
persons in his division whom he may deem suitable.
Very truly yours,
Paul A. Dever, Attorney General.
Civil Service — Appointing Officer — Certifications.
Dec. 17, 1937.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir : — You ask my opinion as to your authority in a mat-
ter concerning the administration of the Civil Service Law, as
follows : —
"Requisition has been received from the chief of police of the city
of Cambridge for two permanent captains, eight permanent lieu-
tenants and eight permanent sergeants. Protest has been made by
the mayor-elect of the city against certification of names to fill the
positions at this time.
Civil Service Rule 13, section 1, concerning certification, reads as
follows : —
'Whenever any appointing officer shall make requisition, the
Commissioner shall certify from such list as he shall deem suitable,
and may recognize the qualification of sex if so stated in the requi-
P.D. 12 25
sition. The position, if filled, must be filled by the appointment and
employment of one of the persons certified.'
There is some question in my mind as to my right to withhold
certification when requisition is received, and I hereby request your
opinion as to whether or not you believe I have any authority to
refuse to certify names on the requisition now before me."
The provisions of the rule which you have set forth in your letter
do not indicate that you have discretionary power to refuse to cer-
tify names when requested so to do by an appointing oflficer, nor
is there any term of G. L. (Ter. Ed.) c. 31, concerning the civil
service, which vests such discretion in you as Commissioner. The
intent of the applicable statute and rule is that the Commissioner
shall comply with the request of an appointing officer with reason-
able dispatch. The Commissioner should not be deterred from so
doing by reason of any personal opinions which he may hold re-
garding the necessity, economic or otherwise, for the application
which has been made upon him. The responsibility for making,
and the discretion to make, the application rest upon and lie with
the appointing oflficer, and the exercise of such discretion by the
appointing oflficer is not reviewable by the Commissioner.
Very truly yours,
Paul A. Dever, Attorney General.
Teachers' Retirement System — Salary — Assessments.
Dec. 21, 1937.
Hon. James G. Reardon, Commissioner of Education.
Dear Sir : — I am in receipt from you of the following letter
accompanying a proposed statute : —
"On November 1, 1937, you furnished the Teachers' Retirement
Board with an opinion that teachers whose salaries have been cut
on account of the depression, as well as teachers who have been
making voluntary contributions, are to pay assessments based on
the full salary which they would have received if the cuts or volun-
tary contributions were not in effect, and that the full salary in
these cases should also be used in determining the average salary
for the five years preceding retirement.
Where teachers have been making voluntary contributions this
practice has been followed. In cases where teachers' salaries were
cut, however, the reduced salary has been used as the basis for
assessments and in determining the average salary for the five
years preceding retirement.
The Teachers' Retirement Board does not feel that it is advisable
to correct the assessments, but it feels that the pensions of the
retired teachers should be corrected, and the enclosed bill has been
prepared for submission to the Legislature. We would like your
opinion on the following questions :
1. Do you feel that there is any constitutional objection to sec-
tion 1, which would deprive teachers of the right of paying the
26 P.D. 12.
difference between the assessments which we have received and the
assessments which we should have received in accordance with
your opinion of November 1, 1937?
2. Do you feel that section 2 of the enclosed bill will correct the
retiring allowance in accordance with your opinion?"
The proposed statute accompanying your letter is as follows: —
"An Act to validate the assessments paid to the Annuity Fund
prior to November 1, 1937, and to adjust pensions of members re-
tired from January 1, 1931, to November 1, 1937.
Section 1. In cities and towns where salaries were cut, the
assessments paid to the Retirement Fund from January one, nine-
teen hundred thirty-one to November one, nineteen hundred thirty-
seven, which were based on the reduced salary rate, shall be con-
sidered the correct assessments due the Annuity Fund,
Section 2. A member of the Teachers' Retirement Association
who was retired between January one, nineteen hundred thirty-one
and November one, nineteen hundred thirty-seven, who is living on
the date this act takes effect, shall receive the pension which he
would have received from if, during any period
that his salary was cut with the original salary schedule still in
effect, the full salary which he would have received during said
period had been used in determining his average salary for the last
five years prior to retirement."
The Attorney General, following a long line of precedents, does
not give formal opinions upon the constitutionality of proposed
measures which have not yet reached the Legislature.
Nevertheless, for your guidance in connection with the impor-
tant duty which rests upon the Board in considering the subject
of adequate and correct retirement allowances for teachers, I sug-
gest to you certain principles of law applicable to the subject mat-
ter of your letter and to the proposed measure which you have
shown to me.
In an opinion of a former Attorney General, given to the Com-
missioner of Education on March 11, 1932 (Attorney General's
Report, 1932, p. 53), with which I concur, it was stated that as a
matter of law the word "salary" as used in G. L., c. 32, §§ 12 (5)
and 9 (2), means the compensation which each of the teachers
affected by said statute is entitled to receive as a matter of law.
It was also stated therein categorically :
(1) That the Retirement Board should base its assessment on
the full salary to which the teacher is entitled by law, (a) regard-
less of any sum paid therefrom to the town by or on behalf of the
teacher, and (b) regardless of any deduction made therefrom as a
"contribution" from the full salary for any purpose, even if the
purpose be the replenishment of the town's treasury.
(2) That only when the teacher enters into an agreement, oral
or written, by which he contracts to serve, for a designated period
named in the agreement, without salary, may the Board base its
assessment on the sum actually received by the teacher instead of
upon the amount of salary originally established as due him.
If assessments for the retirement fund have been in past years
based and paid upon the sums actually paid under situations out-
P.D. 12 27
lined in clause (1) above, a sufficient amount was not paid in by
the teacher. The retirement law makes it obligatory that payment
of the full assessments required by law should be paid up by the
teacher (see VIII Op. Atty. Gen. 606), and it is obvious that, unless
such teacher may pay up such assessments, an annuity based upon
his assessments will inevitably be smaller than if this were done.
The requirement that such assessments are to be fully paid up
works for the benefit of the teacher when he comes to receive his
total retirement allowance, composed not only of a pension from
money furnished by the Commonwealth but an annuity based upon
the amount of his paid-up assessments. G. L. (Ter. Ed.) c. 32, § 9.
The first section of the proposed measure in effect prohibits the
payment into the fund of the correct amount which should have
been received from the teacher but was erroneously omitted in cer-
tain instances. This prohibition applies only to one class of teach-
ers, namely, those who were so unfortunate as to have had their
lawful pay docked by so-called "cuts" or "contributions." It would
not appear to me to be a reasonable mode of classification to single
out this one class of teachers for the application of a rule different
from that applying to all other teachers in the retirement system, —
a rule which will produce less for their old age than the employ-
ment of the ordinary provision of the statutes applicable generally.
Section 2 of the proposed measure appears to me to be unobjec-
tionable as to constitutionality, and will tend to make plain the
proper rule as to the basis of teachers' pensions so as to provide
a system fair to all teachers alike. It follows, from the considera-
tions to which I have alluded in relation to the deduction of the
assessments from such whole salaries as were due teachers rather
than from lesser amounts actually paid, that pensions should like-
wise be based upon whole salaries actually due rather than upon
lesser amounts which may have been paid, and the provisions of
said section 2 state this principle in a plain and concrete form.
From these various considerations and principles of law which
I have discussed herein it could not well be said that section 1 of
the proposed measure would, if enacted into law, be held by the
courts to be constitutional, whereas the provisions of section 2, if
taken by themselves, might probably be held to be permissible legis-
lation under the provisions of the Constitutions of Massachusetts
and the United States.
Very truly yours,
Paul A. Dever, Attorney General.
Governor and Council — Rule — Vote.
Dec. 23, 1937.
His Excellency the Governor, and the Honorable Council.
Gentlemen : — You request my opinion as to whether or not rule
3 of the rules and orders adopted by the Governor and Council is
a reasonable compliance with the provisions of Mass. Const., pt.
2nd, c. II, § III, art. V, which are as follows : —
28 P.D. 12.
"The resolutions and advice of the council shall be recorded in
a register, and signed by the members present; and this record
may be called for at any time by either house of the legislature;
and any member of the council may insert his opinion, contrary
to the resolution of the majority."
The rule in question provides that: —
"The Yeas and Nays may be ordered by the Governor, or upon
the request of any member of the Council."
This rule is limited to designating the manner by which a voice
vote may be secured. It might arise in the usual practice that a
roll call might furnish the occasion for a member to express his
reasons for his vote, if it appears that he is of the same mind as
the minority. The rule, hoM^ever, makes no provision for the ex-
pression of the viev^s of such a member. It does not purport to
regulate or impair the right of the member, as one in the minority,
to put upon the register "his opinion, contrary to the resolution
of the majority." The rule is to be interpreted with reference to
this constitutional mandate, and its phraseology does not warrant
any construction that would impinge upon the aforesaid right of
a minority member. To stress the rule to that extent would inevi-
tably result in its own destruction. Juggins v. Executive Council,
257 Mass. 386 ; Commonwealth v. McFarlane, 257 Mass. 530.
The right prescribed by the Constitution is to "insert his opin-
ion." This can ordinarily be accomplished by a brief, concise and
succinct statement of his objections. A detailed amplification of
his reasons is not required and does not come within the aforesaid
provision of the Constitution.
Very truly yours,
Paul A. Dever, Attorney General.
Unfair Labor Practices — Contracts — Investigations.
Dec. 23, 1937.
Committee on Labor and Industry of the Commission on Interstate
Co-operation.
Gentlemen: — Replying to the letter transmitted to me from
your Committee, let me say that it is significant that chapter 30
of the Resolves of 1937, placing the duty of carrying out certain
investigations for the General Court upon your Commission, was
enacted at the same session of the Legislature which passed St.
1937. c. 436, dealing with the creation of a Labor Relations Com-
mission and other similar matters, the latter only a few days after
the resolve.
Legislative enactments made at the same session are always to be
construed together if possible, so as to form a harmonious whole,
and it is not to be supposed that when the Legislature passed said
chapter 436 it was altogether unmindful of the investigation which
it had called upon your Commission or Committee to make under
said resolve. The mere fact that the same subject matter as that
P.D. 12 29
of the terms of the resolve is in certain of its aspects covered and
regulated by said chapter 436 would not seem necessarily to indi-
cate a legislative intention that your Commission or Committee
was not to deal with and report to the Legislature concerning the
same, as required by the said resolve. The work of the Commission
or Committee was prescribed for the benefit of the Legislature, and
it is not unlikely that the General Court anticipated that the find-
ings of your bodies might be of assistance to it in altering, modi-
fying or adding to the terms of chapter 436 during the coming leg-
islative year,
I cannot, therefore, see any reason why your Commission or
Committee should feel that it is absolved from the duty of making
the required investigation and subsequent report to the Legislature
merely because of the passage of chapter 436, which made certain
types of actions, as between employer and employee, illegal. The
terms of the said chapter 436 in this respect are capable of being
clarified, enlarged and made more particular, and, therefore, it
might well be that the investigation and report of your Commission
or Committee would be of great value to the incoming Legislature.
There is nothing in the Acts of 1937 to indicate that the General
Court felt differently.
The Attorney General does not attempt to give interpretations
of legislative measures as such. It is obvious, however, that, in so
far as the inclusion in "contracts relative to employment" of pro-
visions which deny to employees the right to bargain collectively
through representatives of their own choosing or to engage in con-
certed activities for such purpose or other mutual aid or protection
is concerned, such contracts, as far as such provisions exist, would
come within the prohibition of section 7 of said chapter 436.
Likewise it would appear to be an unfair labor practice, under
said chapter 436, for an employer to coerce an employee, or a
prospective employee, into executing a contract of employment
which by its terms not only was in contravention of the afore-
mentioned rights of the employee, but also enabled the employer
to discriminate through the contractual terms so as to interfere
with the employee's free choice of membership in a labor organiza-
tion, or through its terms prevented bargaining with the employee,
contrary to the provisions of St. 1937, c. 436, § 8 (5).
The provisions of said chapter 436 do not touch upon all the
contractual terms that might be included in those "contracts rela-
tive to employment" which are the main study provided for by
chapter 30 of the Resolves of 1937, as to the existence of which the
Legislature might desire to be enlightened. There may be other
contractual provisions in common use which interfere with employ-
ees' "economic freedom in exercising their right to work and to the
freedom of contract" than those which are referred to in chapter
436. Furthermore, the Commission is directed to consider how
best to seek the co-operation of the interstate conference on labor
compacts in the prohibiting of discrimination through the medium
of contracts. This latter subject is certainly not covered by the
provisions of chapter 436, nor are the matters mentioned in the last
three paragraphs of chapter 30 of the Resolves of 1937, in connec-
tion with the co-operation of the interstate conference on labor
30 P.D. 12.
compacts in forbidding the inclusion in contracts of the excessive
limitations mentioned in said last three paragraphs.
Very truly yours,
Paul A. Dever, Attorney General.
State Hospitals — Stewards — Appointments.
Jan. 5, 1938.
Dr. Clifton T. Perkins, Assistant Commissioner of Mental
Diseases.
Dear Sir: — You have requested my opinion concerning a pos-
sible authority to approve or disapprove appointments of stewards
in State hospitals, which, you say, has been assumed heretofore to
be vested in your department.
G. L. (Ter. Ed.) c. 123, § 28, reads:—
"The trustees of each state hospital, with the approval of the
department, shall appoint and may remove from such state hos-
pital :
(a) A superintendent, who shall be a physician and shall re-
side at the state hospital. With the approval of the trustees he
shall appoint and may remove assistant physicians and necessary
subordinate officers and other persons. . . ."
A steward is a subordinate officer of a State hospital. The ap-
pointing authority is the superintendent. His action is, however,
effective only when it has the approval of the trustees of his hos-
pital. No power to approve or disapprove the appointment made
by the superintendent, or the subsequent action of the trustees, is
vested by the statutes in the Department of Mental Diseases or in
the Commissioner. The general power of management and super-
vision of the State hospitals, granted your department by G. L.
(Ter. Ed) c. 123, §§ 3 and 7, does not include a specific authority
to exercise approval or disapproval of the action of a superintend-
ent, or the subsequent action of trustees with relation to the same,
in regard to the appointment of a steward of a State hospital.
Moreover, a special and peculiar power of approval of the ac-
tions of the authority appointing a steward in any institution in
the Commonwealth is particularly vested in the Commissioner of
Civil Service by G. L. (Ter. Ed.) c. 31, § 42.
It follows that the answer to your inquiry is to the effect that
your department does not have "the right of approval or disap-
proval of individuals filling" the position of steward in a State
hospital.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 31
Hunting and Fishing — Landotvners — Licensed Hunters.
Jan. 10, 1938.
Hon. Ernest J. Dean, Commissioner of Conservation.
Dear Sir : — You advise me that your department "is constantly
confronted with problems concerning the respective rights of land-
owners and licensed hunters relative to the utilization of the wild-
life of the State," and that *'G. L. (Ter. Ed.) c. 131, contains pro-
visions which prohibit the sale of certain wild birds and mammals,
and other provisions which prohibit hunting on posted land with-
out the consent of the landowners." You request my opinion upon
the following four questions : —
"1. If a landowner takes advantage of G. L. (Ter. Ed.) c. 131,
§ 123, and posts his land against hunting, may he hunt there him-
self and permit others to do so?
2. Does the owner of land from which the public is excluded
for hunting purposes have the right to convey the hunting or shoot-
ing rights to others for a consideration or gratuitously?
3. Can the sale of shooting rights on private property be con-
strued as the sale of birds or mammals, which is otherwise pro-
hibited by the provisions of said chapter 131?
4. Is it lawful for the owner or lessee of a 'duck stand,' so
called, to sell the privilege of shooting from that stand, or blind,
at a stated sum per day or week, or can that practice be construed
as an unlawful sale of waterfowl?"
The law governing "the respective rights of landowners and
licensed hunters" has been so long established that there should
be no diflficulty whatever experienced by your department in the
administration of our statutes pertaining to the subject matter in
question.
The ownership of all wild game within the boundaries of the
State is in the citizens of that State in their collective sovereign
capacity, and the State, as their representative, holds the title in
trust for the benefit of all its people. The power of the State to
promulgate and enforce regulations for the protection of wild game
rests not only upon its inherent right in the administration of this
trust for the benefit of all its people, but also upon its police power
for the conservation of a supply of food owned in common by all
its inhabitants. Geer v. Connecticut, 161 U. S. 519. Neiv York v.
Hesterherg, 211 U. S. 31. Dapson v. Daly, 257 Mass. 195, 196.
The owner of land has the exclusive right to take wild game
upon his own land, in accordance with such regulations as the
State may prescribe as to the times and manner in which game
may be captured and killed. His ownership of the land gives him
an interest in the game that may be located thereon, and a right
to capture the same superior to those of the stranger. State v.
Mallory, 73 Ark. 236. Schulte v. Warren, 218 111. 108. Rexroth v.
Cook, 15 R. I. 35.
No one, without the consent of the owner, may enter upon his
premises for the purpose of hunting thereon. A hunting license is
no justification for a trespass upon realty, and the right of the
32 P.D. 12.
owner to the exclusive use of his land cannot be invaded by the
holder of such a license. Osboncl v. Meadoivs, 12 C. B. N. S. 10.
Deana v. Clayton, 7 Taunt. 489. Diana Shooting Club v. Lamoreux,
114 Wis. 44.
In this Commonwealth the owner may protect his property
against trespassing hunters by merely posting his land. The
statute, G. L. (Ter. Ed.) c. 131, § 123, provides:—
"Whoever fishes, hunts or traps on private land without permis-
sion of the owner or tenant thereof, after such owner or tenant has
conspicuously posted thereon notices, bearing thereon the name of
such owner or tenant, stating that fishing or hunting thereon is
prohibited, shall be punished by a fine of not more than twenty
dollars."
I accordingly answer your first and second questions in the af-
firmative and your third question in the negative. As to the fourth
question, you are advised that it is lawful for one to sell a shooting
privilege at a stated price per day or week, and that such a sale
does not as matter of law constitute a sale of waterfowl.
Very truly yours,
Paul A. Dever, Attorney General.
Alcoholic Beverages — License — "Package Goods" Store — Fee.
Jan. 11, 1938.
Alcoholic Beverages Control Commission.
Gentlemen : — You have requested my opinion relative to what
I assume to be an appeal from a refusal to grant a renewal of a
"package goods" store license by the local licensing board of the
city of Taunton.
I understand from your letter that the facts are that the appli-
cant was granted a license for last year and, under the provisions
of G.L. (Ter. Ed.) c. 138, § 15, as amended, the local licensing board
established the fee for such license at |750; that upon application
for renewal for the coming year the local board increased the li-
cense fee to $1500, and, upon tender to them by the applicant of
$750 only, refused the license; and that from such refusal the ap-
plicant appealed to your Commission.
I also understand from your letter that at your hearing upon
such appeal it appeared from the evidence before you that the
increase in fee was made by the local board not because of any
matter connected with the location of the licensee's place of busi-
ness nor in view of his probable volume of sales or of his actual
volume of sales, nor because it appeared by reason of the matters
set forth in section 23 of said chapter 138 that the license had "ac-
quired any monetary value in excess of the license fee."
Assuming that it appeared at the hearing before your Commis-
sion that the increase was not made because of any of the foregoing
reasons — which are the only ones set forth in the statute as war-
ranting an increase in fee and hence, by implication, precluding
a raise in the amount of such fee for any other reason — the refusal
P.D. 12 33
to issue the license because the applicant tendered only $750 instead
of the $1500 demanded was not justified as a matter of law; and it
would be within the authority of your Commission to sustain the
appeal and order the license to issue, and if there were failure to
do so, to issue it yourself for the fee of $750,
Very truly yours,
Paul A. Dever, Attorney General.
State Ballot Law Commission — Compensation — Appropriation.
Jan. 17, 1938.
His Excellency the Governor, and the Honorable Council.
Gentlemen : — I am in receipt from you of the following letter,
with an attached communication sent to you by the State Ballot
Law Commission : —
"At a meeting of the Governor and Council held January 12th it
was voted to submit to you the attached communication from
Thomas P. Glynn, Chairman, State Ballot Law Commission, with
a request for your opinion as to whether the Governor and Council
may lawfully comply with the request contained therein."
The communication attached is as follows : —
"His Excellency Charles F. Hurley, and the Honorable Council.
The State Ballot Law Commission respectfully petition :
That adequate compensation be provided them for the services
rendered by them for the year 1937.
At the opening of the year 1937, $500 was appropriated for ex-
penses and compensation of the Commission. This was in view of
the fact that application had been made for the examination of a
voting machine. This Vv^ould result in the necessity of expenses for
a mechanical expert as provided by law, and for compensation
for such services as the Commission might render in that matter.
Not only have the Commission sat several times for the considera-
tion of the voting machine but they have also given several hearings
on two special election cases, and a certain initiative and referen-
dum petition. This latter is still pending. Up to the end of the
1937 fiscal year we have sat twelve times. The time consumed
is fully equivalent to the time ordinarily consumed in an election
year, for which services your Honorable Board has allowed the
statutory limit of $500 each. Therefore we beg to request that ap-
propriate provisions be made for such amount of compensation as
is covered under G. L. (Ter. Ed.) c. 6, § 31, for our services ren-
dered in 1937.
Thomas P. Glynn, Chairman, State Ballot Laiv Commission.
Jan. 4, 1938."
The applicable statute, G.L. (Ter. Ed.) c. 6, § 31, reads as fol-
lows : —
34 P.D. 12.
"The members of said commission shall each be paid such com-
pensation for their services, not exceeding five hundred dollars an-
nually, as the governor and council may determine; and the total
expenditures by and on account of said commission shall not exceed
the sum of two thousand dollars in any one year."
The supplementary appropriation bill, St. 1937, c. 434, item 167a,
contained this appropriation : —
^'Service of the Ballot Law Commission.
For services and expenses of the ballot law commission, a sum
not exceeding five hundred dollars $500.00"
This appropriation was made for the fiscal year ending Novem-
ber 30, 1937. There is no other appropriation at the present time
applicable to the payment of compensation for the services of the
Commission for 1937. A fixation of a larger compensation for the
Commission at the present time for the year 1937 by the Governor
and Council would be ineffectual, since there is no appropriation
from which it could be paid. The Governor and Council have
power to determine compensation for the Commission for 1938, for
which the Legislature may make the necessary appropriation. It
was not the intent of the General Court, in enacting said section
31, that the determination of compensation should be made for a
fiscal year after the end thereof instead of during that period.
A payment for increased compensation for a past fiscal year, as
to which an appropriation had previously been made, cannot be
regarded as one of the items enumerated in G.L. (Ter. Ed.) c. 6,
§ 8, for which payment might be made from the fund appropriated
for the purposes of that section, including extraordinary expenses
not otherwise provided for.
Very truly yours,
Paul A. Dever, Attorney General.
City Purchasing Agent — School System — Plan A Charter.
Jan. 21, 1938.
Hon. James G. Reardon, Commissioner of Education.
Dear Sir: — You advise me that in the city of Quincy, which
operates on a Plan A charter, there has recently been appointed a
"purchasing agent," and you have, in effect, asked my opinion as
to whether "the purchases of the school department would of neces-
sity have to be made through this purchasing agent."
The portion of the applicable statute, G.L. (Ter. Ed.) c. 41, § 103,
with relation to the duties and authority of such a purchasing
agent, provides : —
"The purchasing agent shall purchase all supplies for the city or
town and for every department thereof except in case of emer-
gency."
The answer to your question depends upon a determination of
whether or not the authorities having charge of the schools, to-
P.D. 12 35
gether with the school system, are to be regarded as forming a
"department" of the city, as the quoted word is used in said section
103.
While the school committee, under the powers vested in it by
our statutes, exercises much authority independent of other muni-
cipal offices, nevertheless, it and the school system which it man-
ages constitute one of the principal activities of a municipality.
The school committee differs from other subdivisions of municipal
government in that its chairman is the mayor (G. L. [Ter. Ed.]
c. 43, § 31), and that, under general provisions of law not under
control of charters, it exercises broad powers in regard to spending
money from appropriations applicable to the school system. In this
connection, in G. L. (Ter. Ed.) c. 43, § 33, the school system is
specifically referred to by the words "the school department," in
the phrase "may make all repairs, the expenditures for which
are made from the regular appropriation for the school depart-
ment . . ."
You advise me that the city of Quincy operates under charter
Plan A. The following phrase occurs in section 52 of said chapter
43: "Upon the adoption of Plan A, all heads of departments and
members of municipal boards, except the school committee, , . .
shall be appointed by the mayor . . ."
It is obvious that the school committee is excepted from "depart-
ments" there referred to because the mayor is by law chairman
thereof, and not because the Legislature intended to indicate any-
thing concerning a difference between a department and the school
system which the school committee manages.
In the case of King v. Mayor of Quincy, 270 Mass. 185, the Su-
preme Judicial Court discussed the meaning of the word "depart-
ments" as used in section 52 of said chapter 43, and held that the
auditor of accounts was one of the "heads of departments" within
the meaning of the charter, and said that the "word 'departments,'
as used therein, is not restricted to the two basic departments of
a municipality, — the legislative and the executive. On the con-
trary it applies to the 'executive and administrative departments,'
among which executive and administrative functions are distrib-
uted." And upon this point cites, among other cases, that of the
Tmisfees of the Boston Public Library v. Rector of Trinity Church,
263 Mass. 173. The opinion of the court in that case held that the
words "department expenses," as used in a will with relation to the
city of Boston, included the expenses of the school system, the court
stating: "The decision of the case depends upon the meaning to
be given to the word 'department' as used by the testator." And
again it stated : "The fact that the schools are removed from the
control of the city council, Spec. St. 1919, c. 206, § 2, is not deter-
minative of the question." And it further stated : "The words
'department expenses' without doubt include expenses of schools."
The school system managed by the school committee is, as was
said of the auditing branch of the city government in King v.
Mayor of Quincy, supra, "none the less a 'department' because not
created specifically as such — though at least once it is referred to
as one of the 'departments.' " Similarly, the school system is, as
36 P.D. 12.
I have pointed out, referred to as the "school department" by the
Legislature in section 33 of said chapter 43.
I am of the opinion that the reference to "expenditures by the"
school "committee for the organization and conduct of physical
training, . , . for providing proper apparatus, . . . athletic wear-
ing apparel and facilities for the same . . . shall be deemed to be
for a school purpose," contained in G. L. (Ter. Ed.) c. 71, § 47,
as amended by St. 1935, c. 199, was not intended by the Legislature
to repeal the powers vested in a purchasing agent under G. L.
(Ter. Ed.) c. 41, § 103, as aforesaid, when such a purchasing agent
had been appointed in a municipality.
The Attorney General, of course, does not advise municipal of-
ficers or school officials upon questions of law, and I am expressing
my view in regard to your present query as to the exercise of any
duties which may be placed upon you and as to which you are
required to act in connection with the subject matter.
By reason of the considerations which I have outlined above,
I am of the opinion that, where a city operating on a Plan A char-
ter has properly appointed a city purchasing agent possessing the
powers set forth in said G. L. (Ter. Ed.) c. 41, § 103, purchases of
the school department should be made by such agent.
Very truly yours,
Paul A. Dever, Attorney General.
Schools — Pupils — Flag Salute.
Jan. 21, 1938.
Hon. James G. Reardon, Commissioner of Education.
Dear Sir: — You have asked my opinion upon certain questions
relative to G. L. (Ter. Ed.) c. 71, § 69, as inserted by St. 1935,
c. 258, which section, in its applicable part, reads : —
"A flag shall be displayed in each assembly hall or other room in
each such schoolhouse where the opening exercises on each school
day are held. Each teacher shall cause the pupils under his charge
to salute the flag and recite in unison with him at said opening
exercises at least once each week the 'Pledge of Allegiance to the
Flag'. Failure for a period of five consecutive days by the prin-
cipal or teacher in charge of a school equipped as aforesaid to
display the flag as above required, or failure for a period of two
consecutive weeks by a teacher to salute the flag and recite said
pledge as aforesaid, or to cause the pupils under his charge so to
do, shall be punished for every such period by a fine of not more
than five dollars. Failure of the committee to equip a school as
herein provided shall subject the members thereof to a like pen-
alty."
Your first question is as follows : —
"1. Does the act apply to pupils attending public schools whose
parents signify that they have not renounced their allegiance to
a foreign country?"
P.D. 12 37
The statute, by its terms, applies to all pupils, and no exception
is stated with relation to the children of aliens or alien children.
Unless excused by the provisions of an existing treaty, such chil-
dren are not excused from a compliance with the statute.
Your second question reads : —
"2. Would school committees throughout the State be justified
in excluding from the public schools children who refuse to salute
the flag?"
In an opinion written to your predecessor in ofRce, on October 9,
1935 (Attorney General's Report, 1935, p. 108), I wrote as fol-
lows : —
"The statute does not expressly make failure, neglect or refusal
to salute the flag on the part of a pupil a criminal offence, and,
consequently, provides no penalty for such failure, neglect or re-
fusal on his part.
Failure, neglect or refusal by a pupil, when present at school,
to salute the flag at the opening exercises on any school day, when
properly directed or required so to do by a principal or a teacher
having charge of him, may, however, warrant appropriate disci-
plinary measures against such pupil."
What constitutes "appropriate disciplinary measures" is to be
decided by school committees in the exercise of their sound judg-
ment in rule making. This is not within the province of the Attor-
ney General to determine. Our Supreme Judicial Court, in Nich-
olls V. Mayor and School Committee of Lynn, Mass. Adv. Sh.
(1937) 557, has said that exclusion from school as a disciplinary
measure upon the pupil for failure to obey regulations as to salut-
ing the flag is not unlawful. See Hamilton v. Regents of the Uni-
versity of California, 293 U. S. 245.
Your third question reads : —
"3. If question 2 is answered in the affirmative, what procedure
could be taken against the parents for not complying with the
school attendance law, G. L. (Ter. Ed.) c. 76, §§ 1 and 2, particu-
larly in those cases where the parents cannot afford to pay for
tuition of their children in private schools?"
The failure to attend school as a consequence of a lawful expul-
sion cannot be used to circumvent the statute making attendance
mandatory. One cannot set up his own fault as an excuse for non-
compliance with such a statute. Under such circumstances, it
would be the plain duty of the Commonwealth to see that educa-
tional facilities were furnished to such children and to proceed in
accordance with the provisions of G. L. (Ter. Ed.) c. 77, § 11.
Very truly yours,
Paul A. Dever, Attorney General.
38 P.D. 12.
Old Age Assistance — Statute — Settlement.
Jan. 21, 1938.
Hon. Walter V. McCarthy, Commissioner of Public Welfare.
Dear Sir : — I am in receipt from you of the following letter : —
"A man received assistance from the bureau of old age assistaPxCe
of Framingham under the provisions of G. L. (Ter. Ed.) c. 118A,
as amended by St. 1936, c. 436, beginning July 15, 1937, on which
date he received retroactive payments of $70.50, to include assist-
ance from the date of his application, February 23, 1937.
The applicant moved to Framingham on May 20, 1932, and re-
sided there continuously until July 15, 1937, the date on which he
first received assistance from the local bureau of old age assistance.
On May 20, 1937, when he completed a residence of five consecu-
tive years in Framingham, he had received no public aid and had
gained a legal settlement in Framingham.
In view of the fact that on May 20, 1937, the applicant had re-
sided in Framingham for five consecutive years without receiving
aid, and the further fact that the Old Age Assistance Law, as
amended, provides that 'Financial assistance granted hereunder
shall be given from the date of application therefor, . . .' would
the retroactive payment of $70.50 which was granted July 15, 1937,
covering the period from the date of application (February 23,
1937), prevent his having a legal settlement in Framingham?"
The Old Age Assistance Law, G. L. (Ter. Ed.) c. USA, as
amended by St. 1936, c. 436, and St. 1937, c. 440, provides in sec-
tion 1, as you have pointed out, as follows : —
"Financial assistance granted hereunder shall be given from the
date of application therefor . . ."
Although this particular phrase provides for assistance to be
given as of a time which may be earlier than the date of its grant,
the act itself is not a retroactive statute ; and as to this particular
provision its effect is only of a retroactive nature when the circum-
stances surrounding the giving of assistance are similar to those
outlined in your letter. The statute nowhere states that the re-
ceiving of assistance as of a date earlier than the grant shall have
the effect of preventing the acquisition of a settlement from and
after such earlier date. The statute itself makes no specific pro-
visions with relation to settlements. It is a principle of statutory
interpretation that even where a statute is expressly or by clear
implication made retroactive to a certain extent or as to a certain
purpose it is not to be construed as retroactive as to any greater
extent or for any other purpose. The retroactive effect of the in-
stant statute, which relates to the date as to which the assistance
shall be given, though in fact granted at a later date, cannot be
construed by implication as having a retroactive effect to destroy
a settlement actually acquired previously.
It is a well established rule of law that statutes as they may
affect settlements are not to be interpreted as so doing retrospec-
tively or by inference but only by a clear expression of the intent
P.D. 12 39
of the Legislature to change the rules of law concerning settle-
ments. Worceste?' v. Barre, 138 Mass. 101.
Even statutes specifically relating to settlement and support are
not to be construed as retrospective nor as retroactive in operation
unless a clear intent is made plain by unequivocal words or neces-
sary implication. Lexington v. Commo7itvealth, 279 Mass. 571,
574; Brockton v. Conivay, 278 Mass. 219, 223; Hanscom v. Maiden
& Melrose Gas Light Co., 220 Mass. 1, 4.
The applicable provisions of the General Laws relative to settle-
ment are G. L. (Ter, Ed.) c. 116, §§ 1 and 2, which read, in part,
as follows : —
"Section 1. . . . First, . . . each person who after reaching
the age of twenty-one has resided in any town within the common-
wealth for five consecutive years shall thereby acquire a settlement
in such town. . . .
Section 2 (as amended). No person shall acquire a settlement,
or be in process of acquiring a settlement, while receiving public
relief, . . ."
Under the facts stated in your letter the applicant referred to had
resided in Framingham, without receiving public relief, continu-
ously for five years up to May 20, 1937. On May 20, 1937, he had
therefore acquired a settlement in Framingham. Such settlement
is not to be divested by acts happening thereafter, which for cer-
tain purposes have a retroactive effect, unless the Legislature has
so stated directly and specifically. A settlement so acquired is not
to be defeated by a mere inference, not plain and obvious, such as
might be drawn from the terms of the Old Age Assistance Law,
to the effect that financial assistance shall be given from the date
of application, when, as here, the date of application falls within
the period of five years of residence but the actual receipt of assist-
ance does not occur until after the five-year period.
I answer the question contained in the last paragraph of your
letter in the negative.
Very truly yours,
Paul A. Dever, Attorney General.
Civil Service — Classification — Assistant Purchasing Agent.
Feb. 2, 1938.
Hon, Thomas H. Green, Commissioner of Civil Service.
Dear Sir : — You have asked my opinion as to whether the posi-
tion of assistant purchasing agent of the city of Lawrence has been
properly classified by you as a position covered by the Civil Service
Law, G. L. (Ter. Ed.) c. 31, and the rules and regulations made
thereunder.
The Commissioners of Civil Service have, by Civil Service Rule 4,
class 8, fixed as a classification among the positions falling within
the purview of said chapter 31 the positions of, — "Claim agents,
purchasing agents, and other agents whose duties may be in part
clerical."
40 P.D. 12.
The city of Lawrence, by an ordinance dated September 20, 1937,
established the "office of assistant purchasing agent," and provided
that the duties of such assistant purchasing agent should be "to
assist the purchasing agent in the discharge of his duties and in
the absence of the purchasing agent to perform the duties of the
said purchasing agent." The ordinance further provided that "the
said assistant purchasing agent shall be appointed by the mayor
and be subject to confirmation by the city council," and the ordi-
nance established a yearly salary for the assistant purchasing
agent.
The charter of the city of Lawrence provides, in section 51, for
a purchasing department, to "consist of a purchasing agent and
such assistants as the city council may from time to time deem
necessary."
G. L, (Ter. Ed.) c. 31, § 5, provides that no rule of the Commis-
sioners of Civil Service "shall apply to the selection or appointment
of any of the following: . . . officers whose appointment is subject
to confirmation ... by the city council of any city."
Since, as appears from the quoted portion of the city charter of
Lawrence and the ordinance of 1937, the city council has deemed
necessary the appointment of one ("an") assistant purchasing
agent, who is to be appointed by the mayor and confirmed by the
city council, it follows that under said G. L. (Ter. Ed.) c. 31, § 5,
if said assistant purchasing agent is an officer rather than an em-
ployee — that is, one holding an office rather than a position of
employment — he will be removed from the force of said Rule 4,
class 8, and will not be subject to civil service classification there-
under.
I am of the opinion that said assistant purchasing agent is an
officer, and so not subject to such classification.
The duties of the assistant purchasing agent are specified by the
ordinance and, in addition to assisting his superior, include the
performance of the duties of his superior in the latter's absence.
These duties of his superior, the purchasing agent, who is the
head of a subdivision of the municipal government, are set forth
in the charter, in section 51, as follows: —
"... The Purchasing Agent shall purchase all supplies for the
City, except in case of an emergency ; but all purchases or contracts
for purchase exceeding twenty-five dollars in amount shall be based
upon competition, and no purchases or contracts for purchase shall
be made involving the expenditure of more than twenty-five dollars
for any one class of supplies in any month, except by competition.
The Purchasing Agent shall purchase all supplies for the School
Department in accordance with instructions given to him by the
School Committee. . . ."
The duties which thus devolve upon the purchasing agent are of
the type which indicate that the agent holds an office. The power
to contract for and purchase all supplies for a city contains a dele-
gation of some of the authority of the municipality itself; and the
position has other attributes, such as executive management of a
municipal department or subdivision, the reception of a fixed sal-
ary, and the taking of an oath of office as an "administrative of-
P.D. 12 41
ficer" (sections of chapters 39, 48 and 54). All make out the pur-
chasing agent as an officer holding an office. Attorney General v.
Tillinghast, 203 Mass. 539, 543; King v. Mayor of Quincy, 270
Mass. 185.
The assistant purchasing agent performs similar duties, and his
position has many of the same attributes which distinguish an office
from a mere position of employment.
The mere fact that he is an "assistant" does not prevent his
being an officer. Attorney General v. Tillinghast, 203 Mass, 539,
544.
Very truly yours,
Paul A. Dever, Attorney General.
Teachers' Retirement System — Public Schools.
Feb. 21, 1938.
Hon. James G. Reardon, Commissioner of Education.
Dear Sir : — You have, in effect, asked my opinion as to whether
a State employee entering the service of the Commonwealth in 1911
may, for the purposes of the retirement system, count as part of
his service time spent between 1908 and 1911 as a director of the
Smith's Agricultural School and Northampton School of Industries.
By the State Retirement Act, G. L. (Ter. Ed.) c. 32, § 1, it is
provided : —
"In the case of employees who before entering the service of the
commonwealth had been regularly employed as teachers in public
schools, as defined by section six, all periods of such employment
rendered prior to July first, nineteen hundred and fourteen, shall
be counted as a part of a continuous service; . . ."
The definition above referred to in section 6 reads : —
" 'Public school', any day school conducted in the commonwealth
under the superintendence of a duly elected school committee, also
any day school conducted under sections one to thirty-seven, in-
clusive, of chapter seventy-four."
Under G. L. (Ter. Ed.) c. 74, § 24, which in its original form was
enacted by Spec. St. 1918, c. 151, Smith's Agricultural School and
Northampton School of Industries, one and the same institution,
is specifically referred to in the following language : —
"Smith's agricultural school, established under chapter one hun-
dred and fifty-one of the Special Acts of nineteen hundred and
eighteen, shall be maintained by the city of Northampton as a state
aided approved vocational school under and subject to sections one
to twenty-two, inclusive; provided, that the superintendents of said
school shall consist of the mayor and superintendent of schools of
said city, ex officiis, and three other superintendents to be elected
by said city annually at its city election by ballot, as provided in
the will of Oliver Smith, and that said superintendent shall have
the powers of local trustees elected under section three."
42 P.D. 12.
The teacher in question, however, did not serve in the Smith's
Agricultural School and Northampton School of Industries (to use
the longer title) w^hich was established "under chapter one hun-
dred and fifty-one of the Special Acts of nineteen hundred and
eighteen." His service in the Smith's Agricultural School was all
prior to 1918. Such service is not service in the school described
in said section 24.
Does the school in which he did serve, the predecessor of the one
named in section 24, fall within the definition of "public schools"
given in section 6 of said chapter 32? It does not appear from any
facts which you have laid before me whether such school, prior to
1918, was "conducted under the superintendence of a duly elected
school committee." If it was so conducted as a day school "under
the superintendence of a duly elected school committee," such school
during the time this employee served in it was a school within the
terms of said definition ; and if that be the case, he would be enti-
tled, under section 1 of said chapter 32, to have his service there
prior to 1911 counted as a part of continuous service. If it was
not "under the superintendence of a duly elected school committee"
but was under the superintendence of some board of trustees cre-
ated under the will of a benevolent person or was under the super-
intendence of the former Commission on Industrial Education by
virtue of St. 1906, c. 505, § 2, the school would not fall within the
definition and the employee would not be entitled to have his serv-
ice in such school counted as part of continuous service.
The Attorney General does not pass upon questions of fact. You
have called my attention to St. 1924, c. 281, § 3, and have suggested
that the words "in such schools," used therein, might be inter-
preted as including Smith's Agricultural School. The section
reads : —
"Teachers in the Bristol county agricultural school, the Essex
county agricultural school and the Norfolk county agricultural
school when this act takes effect, and persons who were teachers
in such schools prior to such time, shall be deemed to have been
public school teachers within the meaning of sections six to nine-
teen, inclusive, of chapter thirty-two of the General Laws during
the entire time they shall have been employed as teachers in said
schools."
The words "such schools" refer only to the three schools spe-
cifically named in the section and not to other unnamed schools of
agriculture.
Very truly yours,
Paul A. Dever, Attorney General.
Soldiers' Relief — Veterans' Children — Settlement.
Feb. 21, 1938.
Hon. Richard R. Flynn, Commissioner of State Aid and Pensions.
Dear Sir : — You have requested my opinion, on certain facts,
as to the eligibility of the children of a deceased veteran of the
World War to the benefits of soldiers' relief under the provisions
of G. L. (Ter. Ed.) c. 115, §§ 17 and 18.
P.D. 12 43
It appears that the veteran died on September 2, 1928, leaving
surviving him a wife and two children, that his service was ac-
credited to the State of Connecticut but that at the time of his
death he had a civil settlement in the town of Buckland in this
Commonwealth. The widow retained the settlement in Buckland,
derived from the veteran, until by remarriage in 1930 to a civilian
she acquired a new settlement in Greenfield. On July 10, 1932,
the family went to live in Buckland and stayed there for more
than five years, by which the settlement of the husband in Green-
field was lost, and because of the fact that the family received pub-
lic relief no settlement was acquired in Buckland.
Since the relief provided for by G. L. (Ter Ed.) c. 115, §§ 17 and
18, must be paid by the town in which the eligible recipients are
settled, the problem reduces itself to the determination of the ques-
tion of whether or not the children have a settlement in either
Greenfield or Buckland.
Formerly children took the settlement of their father, if he had
one in the Commonwealth, and it was decided that such a settle-
ment continued after his decease and did not change with that of
the mother. Scituate v. Hcmover, 7 Pick. 140; Bellingham v. Hoy-
kinton, 114 Mass. 553. This rule was changed by St. 1911, c. 669,
§ 1, cl. 3rd, which provided that if the father dies during the mi-
nority of his children they shall thereafter follow and have the
settlement of their mother. This provision is still in effect. G. L.
(Ter. Ed.) c. 116, § 1, cl. 3rd. Therefore, in the instant case, upon
the death of their father, the veteran, the children took the settle-
ment of their mother, and their settlement changed to Greenfield
with that of their mother, upon her remarriage. Dedhani v. Natick,
16 Mass. 135 ; Inhabitants of Plymouth v. Inhabitants of Freetown,
1 Pick. 197.
Again, it was formerly the rule that the loss of the settlement
of a husband or of the parents of minor children by absence did not
effect the loss of the derivative settlements of the wife or the chil-
dren, a voluntary act being deemed to be essential to the loss of a
derivative settlement, the absence or failure to reside of the hus-
band or parent being held not to be the voluntary act of the wife
or the children. Tr^easurer and Receiver General v. Boston, 229
Mass. SS; Brook field v. Holden, 247 Mass. 576, 579. But by St. 1926,
c. 292, G. L. (1921) c. 116, § 5, was amended in two ways: first, it
was provided that "failure for five consecutive years by a person,
after reaching twenty-one years of age, to reside in a town where
he had a settlement shall defeat a settlement acquired under clause
First of section one, or a settlement of a woman acquired under
clause Second of said section one provided the settlement of her
husband is defeated" ; and secondly, by the insertion of the provi-
sion that, — "The settlement of a minor acquired under either
clause Third or Fourth of section one, except the settlement of a
female minor who has married, shall be defeated with the settle-
ment of the parents." These provisions are still in effect. G. L.
(Ter. Ed.) c. 116, § 5. Applying them to the present facts, the
derivative settlement of the mother of the children in Greenfield
was defeated by her absence for five years, the condition of the
statute that the settlement of her husband be defeated having been
44 P.D. 12.
met. The settlement of the mother having been defeated, the set-
tlements of the children, acquired from her by derivation, were
defeated with hers. Cohasset v. Norwell, 276 Mass, 100 ; Brockton
V. Conway, 278 Mass. 219.
It follows from the foregoing that the children have no settle-
ment in Massachusetts unless they are within the provisions of
G. L. (Ter. Ed.) c. 116, § 5, or unless their mother is within its
provisions. Said section 5 provides : —
"... The settlement existing on August twelfth, nineteen hun-
dred and sixteen, or any settlement subsequently acquired, of a
person whose service in or with the army, navy or marine corps of
the United States qualifies him to receive aid or relief under the
provisions of chapter one hundred and fifteen, and the settlement
of his wife, widow until she remarries, father or mother, qualified
by his service to receive relief under said chapter one hundred
and fifteen, shall not be defeated, except by failure to reside in the
commonwealth for five consecutive years or by the acquisition of
a new settlement."
Prior to St. 1926, c. 292, this provision read as follows : —
"The settlement existing on August twelfth, nineteen hundred
and sixteen, or any settlement subsequently acquired, of a soldier
and his dependent eligible to receive military aid and soldiers' relief
under existing laws shall be and continue in force while said soldier
or dependent actually resides in the commonwealth and until a new
settlement is gained in another town in the manner heretofore
prescribed."
It is plain that prior to the enactment of St. 1926, c. 292, the
settlement of these children, as they are dependents of a soldier
eligible to receive military aid and soldiers' relief, would not have
been lost, since it was governed by the provisions of G. L. (1921)
c. 116, § 5, as amended. Lexington v. Commonwealth, 279 Mass.
571. By St. 1926, c. 292, the word "dependent" was taken out
of the statute, and as it now reads its benefits are extended only
to the persons expressly named therein, i.e., the veteran, his wife,
widow until she remarries, father or mother. Consequently, it fol-
lows that the settlement in Greenfield of the mother is not affected
because she has remarried, and the settlement of the children is
unaffected because the statute does not extend its benefits to them.
The result is, therefore, that the children have no settlement in
the Commonwealth.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 45
Commissioner of Mental Diseases — Governor — Council —
Removal.
Feb. 23, 1938.
Otis M. Whitney, Esq., Clerk of the Joint Committee on State
Administration and Public Welfare.
Dear Sir : — You request my opinion on the following question :
In view of the fact that the Commissioner of Mental Diseases has
been incapacitated from performing his official duties for approxi-
mately one year, has the Governor of the Commonwealth the power
to remove him?
In accordance with G. L. (Ter. Ed.) c. 19, § 2, the Commissioner
is appointed by the Governor, with the advice and consent of the
Council. This statute, however, is silent as to the removal of such
official, and, consequently, G. L. (Ter. Ed.) c. 30, § 9, becomes ap-
plicable. This last-mentioned section reads as follows : —
"Unless some other mode of removal is provided by law, a public
officer, if appointed by the governor, may at any time be removed
by him for cause, and, if appointed by him with the advice and
consent of the council, may be so removed with its advice and con-
sent."
It is to be noted that a removal can be effected only "for cause."
There is no enumeration of the specific grounds which shall con-
stitute an adequate basis for termination of public service. Rin-
aldo V. School Committee of Revere, 294 Mass. 167. Shurtleff v.
United States, 189 U. S. 311.
The power of removal is predicated upon the finding of a cause
which the law and sound public policy recognize as sufficient war-
rant for removal. Ha7n v. Board of Police, 142 Mass. 90. Aye^^s
V. Hatch, 175 Mass. 489. Hogan v. Collins, 183 Mass. 43.
Under such a statute, the sufficiency of the cause is not measured
by the discretion of the removing authority, as it would be if its
exercise was "for such cause as it may deem sufficient," O'Doivd
v. Boston, 149 Mass. 443, or "when in their judgment the best
interests of the town so require," Lacij v. Selectmen of Winchen-
don, 240 Mass. 118.
The failure of one to perform personal services in accordance
with a contract requiring their rendition would constitute a mate-
terial breach justifying the rescission of the contract, but no one
has a private property right in a public office, which, by our law,
has always been considered a public trust to be administered under
legislative control in the interest of the public. Ashley v. Three
Justices of the Superior Court, 228 Mass. 63, 73. Inability to serve,
even if involuntary, has been held sufficient ground for a dismissal
if the public good so requires. Attorney General v. O'Brien, 280
Mass. 300.
Not every disability or absence from duty will merit removal.
The Legislature has provided, G. L. (Ter. Ed.) c. 19, § 4, that the
Commissioner, with the approval of the Governor and Council, may
designate some person in the department other than the assistant
commissioner to perform specific duties, as the Commissioner may
prescribe, during his absence or disability.
46 P.D. 12.
It is clear that under the pertinent statute the Governor alone
cannot remove. This can be accomplished only with the advice and
consent of the Executive Council. This statute, however, has never
been construed by our Supreme Judicial Court, except in a single
instance in which its application was held to be limited to civil
officers. The relationship of the Council to the Governor in removal
proceedings under the statute in question is now before the Su-
preme Judicial Court in the case of Murphy v. Casey, which was
argued last November. That decision will undoubtedly set forth
the method to be employed in removals by the Governor and Coun-
cil.
Of course, it is entirely beyond my province to express an opinion
as to whether the Governor should or should not exercise the re-
moval power in the instant case. Factual determinations and mat-
ters of policy are not here open for decision. The only question
before me is the power of the Governor to act. If the Governor
believes that absence from the active and actual performance of
his duties of one who has been appointed with the advice and con-
sent of the Council is detrimental to the public interest, he is em-
powered to remove such official, provided, however, that such ac-
tion is with the advice and consent of the Council.
Very truly yours,
Paul A. Dever, Attorney General.
Quabbiri Park Cemetery — Funds — Perpetual Care.
March 3, 1938.
Metropolitan District Water Supply Commission.
Gentlemen: — You have called my attention to St. 1927, c. 321,
§ 9, Res. 1936, c. 33, and Res. 1937, c. 52, and request an opinion
as to whether the funds received by the Commission from those
who were holding them for the perpetual care of the original burial
lots, from which bodies have been removed to the Quabbin Park
Cemetery, should be held in a single "fund entitled 'Quabbin Park
Cemetery Perpetual Care Fund' or whether each individual per-
petual care fund should be treated as a separate account in the
name of the representatives of the owners of the lot."
The ordinary rule prevailing in the administration of trusts
where a single individual or institution is trustee for a number of
funds is that the property of each of the funds shall be kept sep-
arate and apart from the property of every other fund. Having
in mind that this trust is to be administered by public officers, and
that the amounts to be derived from the trust funds for respective
lots are comparatively small, it would seem to me that these funds
should properly be kept in a single fund, designated in the manner
set forth in your communication, and that appropriate entries could
be made in the records of the custodian of these funds by which
the rights of the owners in the lots could be shown and protected
to the same extent as if each lot owner had a separate trust fund.
P.D. 12 47
It would seem to me that convenient and proper administration
of the funds would permit a single fund to be maintained as above
outlined, so that the rights of the individual beneficiaries would be
safeguarded.
Very truly yours,
Paul A. Dever, Attorney General.
Marriage — Insane Persons — Feeble-minded Persons.
March 5. 1938.
Dr. Clifton T. Perkins, Assistant Commissioner of Mental Dis-
eases.
Dear Sir : — You ask my opinion as to the legality of the mar-
riage of certain types of persons committed to various institutions
mentioned in G. L. (Ter. Ed) c. 207, § 5. The applicable statute
to which you call my attention governs the marriage of various
types of persons to whom you have referred. It reads : —
"An insane person, an idiot, or a feeble-minded person under
commitment to an institution for the feeble-minded, to the custody
or supervision of the department of mental diseases, or to an insti-
tution for mental defectives, shall be incapable of contracting mar-
riage. The validity of a marriage shall not be questioned by reason
of the insanity, idiocy or of the feeble-mindedness aforesaid of
either party in the trial of a collateral issue, but shall be raised
only in a process instituted in the lifetime of both parties to test
such validity."
It is plain from the foregoing statute that a person who is in
fact insane or an idiot is incapable of contracting marriage. An
insane person is one who is an "idiot" or a "lunatic" or "non com-
pos" or an "insane and distracted person," in accordance with the
definition set forth in G. L. (Ter. Ed.) c. 4, § 7, cl. 15th.
In addition, by the terms of said section 5, one who is in fact a
feeble-minded person and also is under commitment to any one of
the three custodians mentioned in said section is likewise incapable
of contracting marriage.
Very truly yours,
Paul A. Dever, Attorney Gene^-al.
Civil Service — Promotion — Examinations.
March 7, 1938.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir : — You request my opinion relative to certain em-
ployees of the Department of Public Works whose promotion you
authorized, subject to a competitive examination, on December 9,
1936.
In your communication you advise me as follows : —
48 P.D. 12.
"On December 9, 1936, authorization was given for the promo-
tion of these persons subject to regular noncompetitive examina-
tion. Mr. William F. Callahan v^as informed that they would be
notified at a later date for examination. No further action was
taken on this authorization until April 15, 1937, when, because of
the present policy of the department, the authorization was can-
celled. Commissioner Callahan was informed that a promotional
examination would be held to fill these positions. Such examina-
tion was held July 22, 1937, and it was open to the permanent
motor vehicle inspectors in the Department of Public Works. On
November 12, 1937, an eligible list was established, consisting of
eighty-one names. On November 13, 1937, Commissioner Callahan
was informed that the list was established. The provisional em-
ployment of the men mentioned above who were employed in the
positions was terminated, and we requested that a notice of their
return to their former ratings be sent to this office."
You ask my opinion in the following words : —
"I would appreciate your opinion as to whether or not you be-
lieve the persons for whom noncompetitive authorization was given
have some vested rights, and whether this department must con-
tinue with the noncompetive examinations as originally ordered."
G. L. (Ter. Ed.) c. 31, § 3, as amended, authorizes your Board
to make rules and regulations for the selection of persons to fill
appointive positions, and requires that such rules shall include pro-
visions for "promotions, if practicable, on the basis of ascertained
merit in the examination and seniority of service."
Promotions under the Civil Service Law are accordingly gov-
erned by Rule 28 of your Board, which in its applicable part
reads : —
"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 valid until the candidate or candidates
for promotion shall have been subjected to a competitive or non-
competitive examination, as the Commissioner may decide, except
as otherwise required by statute."
Since by this rule a promotion is not valid until the candidate
has taken an examination, your authorization to a department
head to promote "subject to regular noncompetitive examination"
does not of itself place the candidate for promotion in the higher
position, nor does the employment in such position by the appoint-
ing officer place the candidate in the higher position. The candi-
date does not actually attain to such higher position, as a matter
of law, until after he has passed an examination. Before he has
passed an examination his employment, if any, in the duties of such
higher position is merely of a transitory or provisional character
and does not induct him into such higher position nor make him
the permanent incumbent of any but the lower position which he
holds continuously, irrespective of what particular kind of work he
may perform, until he has passed an examination.
Whether the examination, the passing of which is necessary to
make the candidate the lawful holder of the higher position to
P.D. 12 49
which he is named by his departmental head, shall be a competitive
or a noncompetitive examination rests solely in the sound discre-
tion of the Commissioner of Civil Service, and it appears to be the
established rule of law in this Commonwealth that before an ex-
amination has in fact been taken by the candidate for promotion
the Commissioner may, in his discretion, change his original re-
quirement of a noncompetive examination into a requirement of
a competitive examination. Timmins v. Civil Service Commis-
sioners, 276 Mass. 142, 145.
The candidate for promotion, prior to the holding of an exam-
ination, not only has no "vested right," as that phrase is used in
your communication, to such position but he has no right to occupy
it except in a transitory or provisional manner. One holding a
public office or position has no "vested right" thereto. Butler v.
Pennsylvania, 10 How. (U. S.) 402, 416. Newton v. Commission-
ers, 100 U. S. 548. Blake v. United States, 103 U. S. 227. Cren-
shatv V. United States, 134 U. S. 99, 104. Taylor and Marshall v.
Beckham,, 178 U. S. 548, 577. With even less reason may one whose
promotion to a position has not yet become valid claim to have a
"vested right" in such position.
The "authorization" given by the Commissioner of Civil Service
for the promotion of an employee, subject to the passing of a par-
ticular form of examination, confers, as I have said, no rights upon
the candidate for promotion. His rights to the position arise only
from the act of the appointing officer, here the head of the Depart-
ment of Public Works, and the latter's act of appointment is not
"valid" to effect the promotion, by force of said Rule 28, until an
examination has been passed. It cannot, therefore, be said that
any rights of the candidate are adversely affected by an order
changing the form of the future examination.
_ It has been held, as I have stated, that with regard to promo-
tional examinations the Civil Service Commission has power to
change its determination in regard to the kind of examination to
be given. The Supreme Judicial Court in this connection has said,
in Timmins v. Civil Service Commissioners, 276 Mass. 142, 145 :
"We have no doubt that the commission has power to change
its determination in regard to the kind of examination to be given.
Any disappointment or loss to applicants for examination is dam-
num absque injuria. . . .
. . . Passing an examination successfully does not entitle one
to appointment, although ... no one who has not so passed can
legally be appointed. . . . Both in declining to examine a single
applicant, and in changing the examination to the kind desired
... the commission was acting within its rights."
^ The employees here considered still retain their original posi-
tions. They have had the advantage of provisional and temporary
occupancy of the higher place, and their situation is in no way
changed for the worse from its original character by the alteration
of the Commissioner's decision, in his discretion, as to the type
of examination to be held.
Decisions of the courts relative to the irrevocable character of
certain licenses which are effective of themselves to vest privileges
50 P.D. 12.
connected with property in the recipients have no application to
the subject under discussion, because they are based upon situa-
tions in which the licensee, upon receipt of the license, has taken
some step on the strength thereof detrimental to himself if the
license be not treated as a continuing one. Cf. : Loivell v. Archam-
bault, 189 Mass. 70. General Baking Co. v. Street Commissio7iers,
242 Mass. 194.
The "authorization" for the promotion, as the quoted word is
used in your communication, is not of itself a required official act
and neither affects nor adds to the rights of any one under the civil
service laws. The Commissioner's notification to the promoting
officer as to the type of examination which must be passed before
a promotion made by such officer may be valid does not of itself
add or give rights to any one. It is merely the announcement of
the Commissioner's then decision as to the mode subject to which
the power of promotion vested in such officer may be exercised.
From the foregoing considerations it is apparent that I must
answer your request for my opinion, upon the facts which you have
laid before me, to the effect that the persons for whose promotions
noncompetitive examinations were first authorized have no "vested
rights" as a result of such authorization, and that you were not
prohibited, under all the circumstances of which you have advised
me, from deciding that a competitive examination should be a pre-
requisite to the promotions in question ; so that your department
may treat the competitive examination which was held as a result
of your final decision as the controlling factor with relation to the
said promotions.
Very truly yours,
Paul A. Dever, Attorney General.
Civil Service — Classification — Municipal Officer.
March 7, 1938.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir: — You have asked my opinion, with relation to the
city of Beverly, in the following terms : —
"I respectfully request an opinion as to whether or not the posi-
tion of investigator of applicants for relief is classified under civil
service."
From the context of the ordinance of 1926, chapter XXIII, of the
city of Beverly, which you have laid before me, it would appear
that "The department for the investigation of persons seeking aid
or relief from the city," which is by such ordinance "under the
charge" of the said investigator, is not a "principal department"
of such city. It would appear to be an administrative subdivision
of the city's general organization for ministering to the public wel-
fare by granting aid to individuals. The official in charge of the
said "department for the investigation of persons seeking aid or re-
lief" is required by the said ordinance to act under "the direction
of the board of aldermen" and "in conjunction" with "the clerks of
?.D. 12 51
committees" and "the clerk of the department of public welfare."
All these facts indicate that the said "department for investiga-
tion" is not a principal department of the city.
Only heads of departments of a city which are clearly designated
by charter or ordinance as "principal departments" can be consid-
ered heads of principal departments, within the meaning of G. L.
(Ter. Ed.) c. 31, § 5, which, in its applicable part, provides with
relation to civil service: —
"No rule made by the board shall apply to the selection or
appointment of any of the following :
. . . officers whose appointment is subject to confirmation by . . .
the city council of any city ; . . . heads of principal departments of
... a city . . ."
Robertson v. Commissioner of Civil Service, 259 Mass. 447.
Attorney Ge7ieral v. Andrew, 206 Mass. 46. Attorney General v.
Trehy, 178 Mass. 186. Attorney General v. Douglass, 195 Mass. 35.
Upon this ground the ruling which you inform me you have
made, to the effect that said investigator of applicants is to be clas-
sified under the Civil Service Law and its rules and regulations, is
justified, since it also appears from the ordinance which you have
laid before me that said investigator is not an officer whose ap-
pointment is subject to approval by the city council of the city of
Beverly, within the terms of the first exclusion from the rule mak-
ing power of the Board, quoted above from said section 5.
Very truly yours,
Paul A. Dever, Attorney General.
Unemployment Compensation — Waiting Period — W.P.A.
March 7, 1938.
Hon. Emil E. Fuchs, Chairman, Unemployment Compensation
Commission.
Dear Sir : — You request an opinion as to whether persons who
are otherwise eligible to be treated as upon the waiting period, and
also, after such period, eligible to receive unemployment compen-
sation in accordance with the provisions of the Massachusetts Un-
employment Compensation Law, as amended, must be denied the
benefit of being presently within such waiting period, and also
refused compensation, if they are then engaged upon some W.P.A.
project.
Persons who are engaged upon W.P.A. or similar Federal proj-
ects under the Federal Works Program, so called, are, while so
engaged, performing service in the employ of the United States or
of an instrumentality of the United States, and persons so engaged
do not come within the term "employment" as used with relation
to eligibility of individuals for benefit within terms and definitions
set forth in section 1 of said act. Therefore, I am of the opinion
that if any such individuals are otherwise eligible for the benefit
of the Unemployment Compensation Law, they are not to be pre-
52 P.D. 12.
vented from gaining the advantage of the so-called waiting period
described in section 14, nor are they to be denied the receipt of
benefits after loss of employment subsequent to such waiting
period.
Very truly yours,
Paul A. Dever, Attorney General.
Insurance — Investments of Companies — Federal Debentures.
March 14, 1938.
Hon. Francis J. DeCelles, Commissioner of Insurance.
Dear Sir: — You hav,e asked my opinion upon the following
questions relative to investments of insurance companies: —
"(a) Are the debentures issued by the Federal Housing Admin-
istrator under section 204 of the National Housing Act, as
amended, in exchange for mortgages insured under said section
prior to July 1, 1939, authorized investments for the insurance
companies of this Commonwealth?
(6) If such debentures are acquired by the insurance companies
in exchange for a mortgage insured under said section 204 prior to
July 1, 1939, which has been foreclosed by the insurance company
in accordance with the provisions of said section, may the insur-
ance company accept and hold such debentures as authorized in-
vestments?"
A debenture issued under section 204 of the National Housing
Act to mortgagees after foreclosure is a different instrument in
kind from the mortgage formerly held by the mortgagee who re-
ceives the debenture in place thereof. It is an obligation issued by
the Federal Administrator and is a liability of the "Mutual Mort-
gage Insurance Fund" created by said act, and it is guaranteed
as to principal and interest by the United States. Section 204 (b)
of said Housing Act. as amended.
Such an instrument as one of these debentures resembles in its
most important characteristics the bonds issued by the Federal
Farm Mortgage Corporation under the act originally enacted Janu-
ary 31, 1934, as to which bonds it was stated by my predecessor
in office, in an opinion dated April 10, 1934 (not published), to the
then Commissioner of Banks, with which I concur, that such bonds
were "public funds of the United States." See also opinion of the
Attorney General to the then Commissioner of Banks, dated March
27, 1935 (Attorney General's Report, 1935, p. 46).
By G. L. (Ter. Ed.) c. 175, § 63 (1), insurance companies are
authorized to invest "in the public funds of the United States."
Accordingly, I answer both your questions to the effect that such
debentures are lawful investments for insurance companies to
accept and hold under the provisions of G. L. (Ter. Ed.) c. 175,
§ 63.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 53
License — Dentist — Registration.
March 18, 1938.
Dr. Francis M. Cahill, Chairman, Board of Dental Examiners.
Dear Sir : — You advise me that a certain dentist passed the
Massachusetts dental examination in 1924 and was duly registered
to practice dentistry in this Commonwealth, which in fact he
claims to have done for a period of two years subsequent thereto.
He further claims that he has been out of the country for several
years, and now requests that he be given an annual license to prac-
tice dentistry. You inquire if the Board may refuse to grant such
a license.
Registered dentists are required to secure a license annually, on
or before April first, in order to practice as a dentist. G. L. (Ter.
Ed.) c. 112, § 44. There are, however, no provisions contained
in our statutes to the effect that a dentist who has been duly regis-
tered loses such registration on account of his failure to secure
such a license, especially if he has not been engaged in the active
practice of dentistry immediately prior to the time he requests
such a license.
Failure to secure a license is a cause for the revocation of the cer-
tificate granted to a registered optometrist. G. L. (Ter. Ed.) c.
112, § 69. A registered nurse who fails to renew registration
"shall forfeit the right of practice." G. L. (Ter. Ed.) c. 112, § 74.
Barbers are required to secure annual registration. G. L. (Ter.
Ed.) c. 112, § 87. There are no similar provisions in our laws
relative to the practice of dentistry.
The dentist in question is not now in active practice, and if he
desires to engage therein he cannot be compelled to re-register
before he is entitled to receive such license.
I therefore answer your inquiry in the negative.
Very truly yours,
Paul A. Dever, Attorney General.
Public Funds — Expenditures — Appropriation.
March 18, 1938.
Massachusetts Development and Industrial Commission.
Gentlemen : — You have asked me as to whether your Commis-
sion has authority to "warrant the expenditure of the Commis-
sion's funds to help defray costs of such an undertaking" as the
Nashoba Apple Blossom Festival, to be held in Marlboro, Massa-
chusetts. You advise me that it has been suggested that your
Commission "obligate itself to pay bills up to $2,000." These bills
are to be contracted by a semi-public committee in "staging the . . .
festival . . . for the promotion of the apple industry in Massachu-
setts."
Under G. L. (Ter. Ed.) c. 23, §§ IIB-IID, as inserted by St.
1937, c. 427, the general purpose of your Commission is stated to
be "the promotion and development of the industrial, agricultural
54 P.D. 12.
and recreational resources of the commonwealth," and you are
given specific authority, under section IID, to (1) conduct re-
searches; (2) co-ordinate the activities of unofficial bodies; (3)
advertise, prepare, print and distribute books, maps, charts and
pamphlets; (4) accept contributions, and, with the approval of the
Governor and Council, to expend the same and to contribute to the
New England Council; and (5) expend such sums as may be ap-
propriated by the General Court to carry out the purposes for
which your Commission is formed.
If you determine as a fact that the carrying out of the said fes-
tival reasonably tends to promote and develop the agricultural and
recreational resources of the Commonwealth, it could not well be
said as a matter of law that your determination was unreasonable
and that, under the last of the enumerated powers given you by
section IID, you might not with propriety expend from your
appropriation such sum as seemed to you to be necessary and rea-
sonable to promote the success of the said festival. The expendi-
ture of public funds must be restricted to public purposes (Loivell
V. Boston, 111 Mass. 454; Whittaker v. Salem, 216 Mass. 483),
but it is for the Legislature or its administrative agency, at least
in the first instance, to determine whether the proposed expendi-
ture will effect an advancement of the common good. Opinion of
the Justices, 240 Mass. 616. If the dominating purpose of the ex-
penditure is in aid of the general welfare, then there is sufficient
legal justification therefor, even though payment is made to private
individuals. Carmichael v. Southern Coal & Coke Co., 301 U. S.
495, 518. Horrigan v. Mayor of Pittsfield, Mass. Adv. Sh. (1937)
1601, 1606.
In the absence of money made available to you by appropriation
you cannot "obligate" the Commission or the Commonwealth "to
pay bills up to $2,000." G. L. (Ter. Ed.) c. 29, § 26.
Very truly yours,
Paul A. Dever, Attorney Geyieral.
State Reservatio7i — Police — Couyity Commissioners.
March 25, 1938.
Hon. Walter C. Wardwell, Chairman, County Commissioners of
Middlesex County.
Dear Sir : — The Attorney General, following a long line of
precedents, does not advise county officers concerning their duties.
Nevertheless, inasmuch as the County Commissioners of Middlesex
County also act, under the provisions of St. 1922, c. 499, as the Wal-
den Pond State Reservation Commission, and, when acting as such
Commission, may be regarded as officials of the Commonwealth as
such, I transmit to you my opinion upon the question which you
have asked me, namely : "Whether or not the County Commission-
ers may appoint the employees of the Walden Pond State Reserva-
tion Commission, of which the County Commissioners are Commis-
sioners, to act as county police and perform the duties set forth in
G. L. (Ter. Ed.) c. 147, § 8."
P.D. 12 55
I am of the opinion that the County Commissioners, acting as
the said Commission, have no authority to appoint the said em-
ployees to act as county police in and upon said State reservation.
A State reservation, as described in said chapter 499, is a State
and not a county division. The title to the land of said reserva-
tion is in the Commonwealth. It is to be assumed that buildings
erected upon such land become part of the realty irrespective of
who paid for their erection.
Although the County Commissioners of Middlesex County, as
such, are authorized to levy as a part of the county tax a sum to
meet the expenses of the care, maintenance and improvement of
the reservation, the fact still remains that the reservation is that
of the Commonwealth, and that the persons employed thereon are
employees of the Walden Pond State Reservation Commission and
not of the County of Middlesex. The Commission as such, and
not the County Commissioners of Middlesex County, is charged
with the duty and given the authority to care for, protect and main-
tain the reservation in behalf of the Commonwealth, by section 3
of said chapter 499.
The authority of the county commissioners of the various coun-
ties to appoint police, under G. L. (Ter. Ed.) c. 147, § 8, is limited
to the appointment of persons in the employment of the county,
and their functions are limited to preserving order in any court
house or in any room or building used for county business and upon
the adjoining premises, and to arresting certain persons who inter-
fere with others using county buildings or premises or who deface
such buildings.
Inasmuch as it cannot be said that the employees of the Com-
mission are employees of the county, nor that the purposes for
which they could properly be employed as policemen on said reser-
vation are the limited purposes outlined in said section 8, such
appointment would not seem to be within the scope of the authority
of the County Commissioners of Middlesex County,
Very truly yours,
Paul A. Dever, Attorney General.
State Teachers Colleges — Meetings of Students.
March 30, 1938.
Hon. James G. Reardon, Commissioner of Education.
Dear Sir : — You advise me that a certain society composed of
students of a particular creed in one of the State Teachers Colleges
and a similar organization in the Massachusetts School of Art have
been given the privilege of holding meetings on the college
premises. You inquire if such use may be granted.
The Department of Education has supervision and control of
such institutions, which must be maintained and conducted essen-
tially and predominantly for the promotion and advancement of
education. The power of the department extends not only to the
premises but to all the purposes for which they may be used. No
use should be permitted which would lower the standards pre-
56 P.D. 12.
scribed, or interfere with matters of discipline, the proficiency
of the students, or the promotion of the public interests.
Secret organizations which, in the opinion of the department,
tend to curb the efficiency of the college or are detrimental to its
aims and objects should be eliminated. On the other hand, the de-
partment may permit the use of the college premises to such asso-
ciations as may be found to be beneficial to the students and con-
sistent with the principles taught and inculcated by the institution.
Such use is permissive only, and must be allowed only to an extent
which is incidental to the main and principal activity of the college.
The use of school premises in cities and towns is regulated by
statute, G. L. (Ter. Ed.) c. 71, § 71, which is declaratory of a prac-
tice which is thereby recognized as valid.
In the absence of a statute, the department may permit the use
of the premises over which it has supervision and control to the
extent above mentioned.
Very truly yours,
Paul A. Dever, Attorney General.
Old Age Assistance — Eligibility.
March 30, 1938.
Hon, Walter V. McCarthy, Commissioner of Public Welfare.
Dear Sir : — You seek an opinion as to whether a person other-
wise eligible to receive the benefits provided by St. 1936, c. 436,
and St. 1937, c. 440, is barred from relief simply because he is con-
fined for treatment as a patient in a hospital on account of injuries
sustained in an accident.
You are advised that he is entitled to receive the benefits from
the Old Age Assistance Law.
Very truly yours,
Paul A. Dever, Attorney General.
Alcoholic Beverages — Sales — Aliens — Treaties.
March 30, 1938.
Hon. William P. Hayes, Chairman Alcoholic Beverages Control
Commission.
Dear Sir : — You advise me that "six German waiters, who are
aliens, have been ordered to be discharged from their business"
in a certain restaurant in Boston, the owner of which was duly
licensed to sell alcoholic beverages. You state that these waiters
are now permitted to serve only food and to do some entertaining,
such as singing. I assume the order for their discharge has been
made because the licensee deemed that they were not authorized
to sell or serve alcoholic beverages. You enclose a copy of a telegram
sent by the Acting Secretary of State to His Excellency Charles F.
P.D. 12 57
Hurley, Governor of Massachusetts, which contains a protest made
by the German Embassy at Washington over the discharge of the
waiters in question.
You request my opinion as to whether or not the provisions of
an existing treaty between the United States and Germany super-
sede a provision in our liquor control act prohibiting aliens from
selling, serving or transporting alcoholic beverages or alcohol, in
so far as this section pertains to subjects of Germany.
A treaty between the United States and Germany of "friendship,
commerce and consular rights" was proclaimed October 14, 1925.
44 Stat, at L. 2132. The duration of this compact was for the
period of ten years "and until one year from such time as either
of the High Contracting Parties shall have notified to the other an
intention of modifying or terminating the Treaty." This treaty
as modified and ratified was proclaimed by the President of the
United States October 25, 1935, and is now in full force and effect.
The amendment in the existing treaty, however, is not material to
any question now calling for a decision. The portion of this treaty
which is pertinent to the present inquiry is contained in the first
article, which in substance provides that the nationals of each of
the contracting governments shall be permitted to engage in "com-
mercial work of every kind without interference ; to carry on every
form of commercial activity which is not forbidden by the local
law; . . . and generally to do anything incidental to or necessary for
the enjoyment of any of the foregoing privileges upon the same
terms as nationals of the state of residence or as nationals of the
nation hereafter to be most favored by it, submitting themselves
to all local laws and regulations duly established."
The pertinent statute, G. L. (Ter. Ed.) c. 138, § 31, in so far as
material, provides: —
"No person, except a citizen of the United States, shall sell, serve
or deliver any alcoholic beverages or alcohol on any premises cov-
ered by a license, permit or certificate of fitness issued under this
chapter, and no holder of such a license, permit or certificate of
fitness shall, directly or through any agent, employ or permit any
such person to sell, serve or deliver any alcoholic beverages or
alcohol upon the premises covered by such license, permit or cer-
tificate. No holder of a transportation permit issued under this
chapter shall, directly or through any agent, employ or permit any
person, except such a citizen, to transport any alcoholic beverages
or alcohol. . . ."
The Constitution of the United States provides (art. II, § 2)
that the President "shall have power, by and with the advice and
consent of the senate, to make treaties, provided two-thirds of the
senators present concur." A broad and general delegation of
authority is thus conferred upon the Chief Executive to negotiate
with foreign powers concerning any subjects which he deems con-
ducive to the national welfare, save only such as may be inconsis-
tent with the remaining provisions of said Constitution, and, with
the aforesaid consent of the Senate, to enter into binding compacts
with such foreign governments.
In Geofroy v. Riggs, 133 U. S. 258, 267, the court said : —
58 P.D. 12.
"The treaty power, as expressed in the Constitution, is in terms
unlimited except by those restraints which are found in that in-
strument against the action of the government or of its depart-
ments, and those arising from the nature of the government itself
and of that of the States. It would not be contended that it extends
so far as to authorize what the Constitution forbids, or a change in
the character of the government or in that of one of the States,
or a cession of any portion of the territory of the latter, without its
consent. Fort Leavemvorth Railroad Co. v. Loive, 114 U. S, 525,
541. But with these exceptions, it is not perceived that there is
any limit to the questions which can be adjusted touching any mat-
ter which is properly the subject of negotiation with a foreign
country." j
See also: Missouri v. Holland, 252 U. S. 416; and United States
V. Curtiss-W right Export Corp., 299 U. S. 304.
The validity of the treaty is beyond question, and the effect to be
given to it is prescribed by the Constitution itself. The Constitu-
tion and acts of Congress made in compliance therewith and "all
treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land." U. S.
Const, art. VI. It was early decided in Foster v. Neilson, 2 Pet.
253, 314, by an opinion rendered by Chief Justice Marshall, that
a treaty is "to be regarded in courts of justice as equivalent to an
act of the legislature, whenever it operates of itself without the aid
of any legislative provision." A treaty carries its own inherent
right of recognition and binding authority upon all Federal and
State tribunals alike. Head Money Cases (Edye v. Robertson),
112 U. S. 580, 598; Heong v. United States, 112 U. S. 536, 540;
Whitney v. Robertson, 124 U. S. 190, 194 ; Maiorano v. Baltimore
& Ohio R.R. Co., 213 U. S. 268, 272.
Matters covered by treaty are the paramount law of this Com-
monwealth and, together with the Constitution of the United
States and acts of Congress made in pursuance of the Constitution,
are the supreme law of the land. Such being the effect of the
treaty provisions, no State statute can operate in any manner in-
consistent with anything contained in the treaty. Every conflict-
ing statute or ordinance must yield. Hauenstein v. Lynham, 100
U. S. 483, 489; Sullivan v. Kidd, 254 U. S. 433, 440; Todok v. Union
State Bank, 281 U. S. 449, 453.
^If the treaty in question, by a proper construction, grants Ger-
man nationals the right to engage in selling, serving or transport-
ing intoxicating beverages or alcohol on the same terms and con-
ditions as are granted to our citizens, then there must be no inju-
rious discrimination based on their alienage. ;, Treaties are solemn
compacts entered into by independent nations for the promotion
and enhancement of their mutual benefits and common interests.
They must be interpreted in the light of the purpose which they
were intended to acquire and achieve. The contracting nations
were seeking equality for their subjects in the territory of the
other and establishing reciprocal relations between themselves.
Such compacts have always been liberally construed upon a broad
plane and in a spirit consonant with the apparent motives which
actuated the parties to enter into the engagement. In re Ross, 140
P.D. 12 59
U. S. 453 ; Tucker v. Alexandroff, 183 U. S. 424 ; Nielsen v. John-
son, 279 U. S. 47.
The treaty expressly grants German aliens the right to engage
in any commercial work of any kind without interference, and to
do anything incidental or reasonably necessary for the enjoyment
of such a privilege. It is the settled law of this Commonwealth
that the serving of food in a restaurant constitutes a sale, and the
mere delivery of the food is sufficient to transfer title thereto.
Anyway, the serving of food to a patron may be considered as a
commercial activity, and waiters so engaged are employed in a
commercial occupation. Friend v. Childs Dining Hall Co., 231
Mass. 65, 68, 69 ; Smith v. Gerrish, 256 Mass. 183 ; Schider v. Union
Neivs Co., 295 Mass. 350.
Our treaty with Japan contains a provision that her subjects
shall be permitted "to do anything generally incident to or neces-
sary for trade upon the same terms as native citizens or subjects."
That provision has been construed to enable nationals of that coun-
try to engage in occupations of a commercial nature. State v.
Tagami, 195 Calif. 522; Asakura v. Seattle, 265 U. S. 332; Jordan
V. Tashiro, 278 U. S. 123. In passing, it is worthy to note that this
provision in the Japanese treaty is substantially similar to the first
article of the treaty under consideration.
Our statute prohibiting the employment of aliens in the sale,
serving or transportation of alcoholic beverages does not contain
the provision set forth in section 26 of the same chapter forbidding
the granting of licenses to aliens, in which it is expressly stated
that "no provision of this chapter shall impair any right growing
out of any treaty in which the United States is a party." The
exemption, however, is clear as being applicable to every section
contained in the liquor control act. The effect, however, of this
exemption is simply a declaration of existing law. Section 31 is a
valid enactment under our own Constitution and does not offend
the equal protection clause of the Fourteenth Amendment to the
Constitution of the United States. This statute, however, is not
entitled to be construed in conjunction with the treaty, for the lat-
ter is independent and separate from the statute, and is the expres-
sion of a power superior to that of the legislative authority of the
Commonwealth. That the regulation of a business in the exercise
of the police power may be an aid to the maintenance of law and
order does not exclude it from the terms of a treaty which fairly
extends to it. In selling, serving or transporting liquor, the na-
tionals were engaged in trade or commerce. They are within the
sheltering protection of the first article of the treaty. The instant
statute, therefore, cannot be applied to German aliens who are en-
gaged in that occupation.
You call attention in your communication to the fact that when
the treaty was proclaimed, October 14, 1925, the sale or serving
of intoxicating liquors to patrons of a restaurant was prohibited
under the existing law by virtue of the adoption of the Eighteenth
Amendment to the Constitution of the United States. Even so,
this does not impair the rights of German nationals to engage in
the occupation above mentioned when that occupation has been
legalized under existing law. /'To do so would be to lose sight of
60 P.D. 12.
the principal aim and object of the treaty, which was to establish
equality between such nationals and our own citizens and to estab-
lish reciprocity between the subjects of both the contracting gov-
ernments. , If no liquor licenses were granted, such nationals would
have no cause of complaint; but when such licenses are in fact
issued and the services of waiters are required in the conduct of
the business, then there can benohostile discrimination against
German nationals in seeking and securing jemployment as waiters
in such licensed businesses.
A decision given by my predecessor, on January 23, 1934 (Attor-
ney General's Report, 1934, p. 54), that section 31 of G. L. (Ter.
Ed.) c. 138, did not impair the rights given the subjects of another
nation, might be distinguished on the ground that the phraseology
in the treaty there considered is different from that now under con-
sideration. However, if there is anything in said opinion incon-
sistent with the present opinion, I am not inclined to follow it.
Very truly yours,
Paul A. Dever, Attorney General.
Constitutional Law — Highways — Playgrounds.
April 1, 1938.
Hon. Abraham I. Zimon, Chairman, House Committee on Bills in
the Third Reading.
Dear Sir: — You request an opinion as to the validity, if en-
acted into law, of Senate Bill No. 434, entitled "An Act authorizing
cities and towns to use certain ways therein for playground pur-
poses."
The bill expressly provides that in the temporary closing of a
highway due regard shall in every instance be given to the rights
of abutting owners. Questions of considerable complexity relat-
ing to access, to the imposition of additional servitudes, and to re-
strictions of existing use not inconsistent with the public easement
may be laid to one side. Opinion of the Justices, Mass. Adv. Sh.
(1937) 615.
The rights of all those having a proprietary interest in the locus,
or a similar interest on account of the contemplated use of the
locus, having been left substantially unimpaired and unaffected,
the only issue left for determination is the competency of the Gen-
eral Court to authorize the temporary use of a highway for play-
ground purposes, so far as it requires the general public to submit
to the curtailment of the privilege of the use of the highway, which
has theretofore been unrestricted.
The regulatory powers of the Legislature over the use of our
public ways have always been recognized and enforced by the
courts, and the limitation of that right by others than those
authorized by the Legislature has always been condemned. Com-
monwealth V. Ruggles, 6 Allen, 588. Haberlil v. Boston, 190 Mass.
358. Commonwealth v. Morrison, 197 Mass. 199. Commonwealth
V. Surridge, 265 Mass. 425.
P.D. 12 61
The extensive control always maintained by the Legislature
and inherent in that branch of our government has been uniformly
upheld by the courts. Commomvealth v. Stodder, 2 Cush. 562.
Commonwealth v. Plaisted, 148 Mass. 375. Commomvealth v. Ellis,
158 Mass. 555. Commomvealth v. Fox, 218 Mass. 498. Brodbme
V. Revere, 182 Mass. 598. Commomvealth v. Kingsbury, 199 Mass.
542. Morley v. Police Commissioner of Boston, 261 Mass. 269.
Widronak v. Lord, 269 Mass. 238. Commomvealth v. Davis, 162
Mass. 510, affirmed Davis v. Massachusetts, 167 U. S. 43. Packard
V. Banton, 264 U. S. 140. Frost v. Railroad Commission, 271 U. S.
583. Sproles v. Binford, 286 U. S. 374. Stephenson v. Binford,
287 U. S. 251. /^zcA;Zm v. Cone^/, 290 U. S. 169.
The right in the general public to use our public v^^ays is held by
the Commonwealth in trust for their benefit, but an individual, in
*he exercise of this common privilege, is subject to such regulations
as the Legislature in its discretion may prescribe. The restric-
tion of such a common right by one having only such a common
interest therein has never been held in this Commonwealth to be
sufficient basis upon which to challenge the validity of the legisla-
tive action. Willard v. Cambridge, 3 Allen, 574. Warner v. Mayor
of Taunton, 253 Mass. 116.
The bill in question calls for little extension of power beyond that
shown by G. L. (Ter. Ed.) c. 85, § lOA, by which vehicular traffic
may be regulated during the time that coasting is permitted on cer-
tain ways. The present bill, if enacted into law, is supported by
decisions in other jurisdictions upholding the temporary closing
of highways during the period of their use as a public playground.
Owens V. Atkins, 163 Ark. 82. Simon v. Atlanta, 67 Ga. 618.
Laurenceburg v. Lay, 149 Ky. 490. Wheeler v. Fort Dodge, 131 la.
566.
I am accordingly of the opinion that the bill, if enacted into law,
would not be violative of any provisions of the State or Federal
Constitutions.
Very truly yours,
Paul A. Dever, Attorney General.
State Prison — Violation of Pardon — Sentence.
April 8, 1938.
Hon. Arthur T. Lyman, Commissioner of Correction.
Dear Sir : — You request an opinion, in effect, as to whether a
prisoner in the State Prison, released upon a pardon with condi-
tions, who is subsequently remanded by an order of the Governor
and Council for violation of such conditions and ordered to be "con-
fined for the unexpired term of his original sentence," according
to the provisions of G. L. (Ter. Ed.) c. 127, § 156, is to be held in
State Prison during the unexpired term of his minimum sentence
or for the unexpired term of his maximum sentence.
I answer your question to the effect that such a prisoner is to be
held for the unexpired minimum term of his sentence only, if other
statutory conditions justify his release at such time.
62 P.D. 12.
The words contained in said G. L. (Ter. Ed.) c. 127, § 156, by
virtue of which such a remanding order is made, — "remanded and
confined for the unexpired term of his sentence", — were employed
by the Legislature with the same intent and have the same mean-
ing as the words used in section 149 of said chapter 127, with rela-
tion to paroled prisoners returned for a breach of parole conditions,
which are, — "shall be detained therein according to the terms of
his original sentence." With relation to the last-quoted phrase, I
advised you in an opinion of March 28,1936 (not published), that
such returned paroled prisoner was entitled to the benefits of sec-
tion 133 of said chapter 127, as amended, concerning release at the
expiration of the minimum term of his sentence as originally
imposed by a court.
Very truly yours,
Paul A. Dever, Attorney General.
Insurance — Receivership) — Deposits of Foreign Companies.
April 22, 1938.
Department of Industrial Accidents.
Gentlemen : — You have set forth in a letter the facts relative
to a deposit of the Independence Indemnity Company, which facts
may be summarized as follows : —
The Independence Indemnity Company is a foreign corporation
and the State of Pennsylvania was the state of its creation. Phila-
delphia was the city in which the said corporation had its principal
offices and from which most of its business was transacted.
The said insurance company, pursuant to the provisions of G. L.
(Ter. Ed.) c. 152, § 61, was permitted to transact insurance busi-
ness in this State. Its business in this State consisted of writing
and issuing workmen's compensation insurance policies. This
company had furnished a bond, as provided for by our statutes
pertaining thereto, with the Employers Liability Assurance Cor-
poration, Ltd., as surety. The license of the Independence Indem-
nity Company to transact business in this Commonwealth expired
on June 30, 1931. The Commissioner of Insurance declined to
renew its license.
The Industrial Accident Board, acting under section 62 of said
chapter 152, made formal demand upon the said Independence
Indemnity Company for a deposit of the sum of $10,000 (deter-
mined as "an amount equal to twenty-five per cent of its obliga-
tions, incurred or to be incurred under the workmen's compensa-
tion policies issued to employers in the commonwealth") with the
State Street Trust Company, duly appointed as trustee under said
section 62, and this sum was deposited by the Independence Indem-
nity Company on July 6, 1931.
On July 14, 1931, the Independence Indemnity Company, still
being solvent, was granted a new license by the Commissioner of
Insurance to transact business under the insurance laws of this
Commonwealth, and said company furnished a surety bond in the
penal sum of $35,000, with the Detroit Fidelity & Surety Company
as surety thereon. Subsequent to the issuance of this new license,
P.D. 12 63
the said Independence Indemnity Company further transacted the
business of workmen's compensation insurance. The new license
expired on June 30, 1932, and the Commissioner of Insurance
refused to renew said license. Thereafter, on October 31, 1932,
the Independence Indemnity Company entered into an agreement
of reinsurance with the International Reinsurance Company of
Delaware whereby it conveyed to the latter all of its property and
assets, and the latter assumed all of the obligations of the former.
This latter agreement was executed subsequent to the expiration
of the Independence Indemnity Company's second license, to wit,
October 31, 1932. In consequence of this new agreement of rein-
surance, the reinsurer made certain payments in the name of the
said Independence Indemnity Company on claims arising under
policies of workmen's compensation insurance issued to employers
in this Commonwealth by the latter company during the periods in
which it transacted workmen's compensation business here.
Subsequently, the Independence Indemnity Company passed into
receivership in Pennsylvania, and the International Reinsurance
Corporation passed into receivership in Delaware. The Detroit
Fidelity and Surety Company had also been reinsured with Lloyd's
Insurance Company of America, and the latter also passed into
receivership.
With relation to these facts you have asked my opinion upon the
following questions : —
"1. May the department, acting under said section 62, direct
the trustee to make payment immediately, out of the deposit held
by it, towards obligations which have been determined as afore-
said?
2. Do the provisions of section 62, that 'the amount so deposited
shall be available for the payment of the said obligations of the
company to the same extent as if the company had continued to
transact business in the Commonwealth,' the provisions of the bond
to the effect that the principal 'shall at the same time agree that
the amount so deposited shall be available for the payment of the
said obligations of the said principal to the same extent as if the
said principal had continued to transact business in the Common-
wealth of Massachusetts,' and upon default of the conditions of the
bond that it 'shall remain in full force and virtue,' and the provi-
sions of section 61 to the effect that 'in place of a bond as afore-
said the company may furnish other security upon a like condition
satisfactory to the Commissioner,' together with the fact that the
deposit referred to was made by the principal and not by any
surety (and the possibility that the Commissioner of Insurance
may have contemplated the availability of this partial deposit in
issuing a new license on July 14, 1931), render this deposit avail-
able for payment on all claims which have been established during
the entire period in which this principal transacted workmen's
compensation business in this Commonwealth?
3. Is the deposit available for payment only upon the outstand-
ing claims remaining of the claims originally determined as arising
out of policies issued during the license which expired on June 30,
1931, upon which the deposit demanded was originally based?
64 P.D. 12.
4. In respect to the claims upon which payment shall be made
as determined by your answers to questions 2 and 3 above, shall the
amount available be pro-rated or may there be selection of certain
of the multiple claims for payment?
5. In respect to the claims upon which payment shall be made
as determined by your answers to questions 2 and 3 above, is any
preference to be accorded as among employees, physicians, hospi-
tals or attorneys?"
The applicable portions of the statute, said G. L. (Ter. Ed.) c.
152, read as follows : —
"Section 61. Every foreign insurance company transacting the
business of workmen's compensation insurance in the common-
wealth shall furnish a bond running to the commonwealth, with
some surety company authorized to transact business in the
commonwealth as surety, for such term and such amount and
in such form as may be approved by the commissioner of in-
surance, the bond being conditioned upon the making of the de-
posits required by the following section. The annual license of
such a company shall not be issued or renewed until it has filed
with the commissioner a bond as aforesaid covering a future period
at least as long as that covered by the license. In place of a bond
as aforesaid the company may furnish other security, upon a like
condition, satisfactory to the commissioner.
Section 62. Every such foreign insurance company shall,
within five days after its withdrawal from the transaction of busi-
ness in the commonwealth or after the revocation of its license
issued by the commissioner of insurance or of his refusal to renew
it, deposit with a trustee to be named by the department an amount
equal to twenty-five per cent of its obligations incurred or to be
incurred under the workmen's compensation policies issued to em-
ployers in the commonwealth; and within thirty days after such
withdrawal, revocation of or refusal to renew a license, such com-
pany shall deposit with said trustee an amount equal to the re-
mainder of such obligations incurred or to be incurred, the amount
of which obligations shall be determined by the department. The
amounts so deposited shall be available for the payment of the said
obligations of the company to the same extent as if the company
had continued to transact business in the commonwealth, and the
trustee so receiving said deposits shall pay such obligations at the
times and in a manner satisfactory to the department."
I answer your questions as follows : —
1. The sum which has been deposited with the trustee should
be used to pay obligations referred to in said G. L. (Ter. Ed.) c.
152, § 62, which arose prior to the time when the insurance com-
pany first withdrew from the transaction of business in Massachu-
setts, irrespective of the fact that the company, after a lapse of
time, began doing business again under a new license.
2. I answer your second question in the negative. The provi-
sions of sections 61 and 62, irrespective of the fact, to which you
refer in your question, "that the deposit referred to was made by
the principal and not by any surety," do not render this deposit
available for payment on all claims which have been established
P.D. 12 65
during the entire period in which this principal transacted work-
men's compensation in this Commonwealth. The principal was
the one in the first instance to make the deposit; and if the princi-
pal failed to make the deposit, then the surety was bound by the
conditions of the bond to make the deposit. The deposit is avail-
able only for those obligations which arose prior to the time when
the insurance company first withdrew^ from the transaction of
business in Massachusetts under its first license.
You refer to the possibility that the Commissioner of Insurance
may have contemplated the availability of these partial deposits in
issuing a new license on July 14, 1931. This cannot be assumed to
be a fact nor would it be material, because under said section 62
the insurance company, upon first withdrawing from the transac-
tion of business in the Commonwealth, was bound to deposit an
amount equal to twenty-five per cent of its obligations incurred or
to be incurred under workmen's compensation policies already
issued to employers in the Commonwealth.
3. I answer your third question in the affirmative.
4. I answer your fourth question to the effect that if there are
more than sufficient funds from the amount available to pay up
to one hundred per cent of all the claims which accrued in the
course of the company's business prior to its first withdrawal,
whether presented for determination before or after the date of
such withdrawal in the transaction of business in Massachusetts
under its first license, the surplus should be payable to the receiver
of the Independence Indemnity Company. See Cogliano v, Fergu-
son, 245 Mass. 364, 369. If there are insufficient funds from the
said amount available to pay one hundred per cent of all such
claims, said amount should be used to pay pro rata all claims, ap-
proved by your department, of employees, physicians, hospitals and
attorneys which accrued in the manner above described.
5. I answer your fifth question in the negative.
Very truly yours,
Paul A. Dever, Attorney General.
Constitutional Laiv — Wild Life Sanctuaries — Owners of Land.
April 26, 1938.
House Committee on Conservation.
Gentlemen : — You have submitted to me two bills. Senate No.
236 and a proposed substitute for Senate No. 236. You have asked
my opinion as to the constitutionality of these measures if enacted
into law.
Senate No. 236 adds to the existing provisions of G. L. (Ter.
Ed.) c. 131, § 115, — which deal with wild life sanctuaries, for
which the Commissioner of Conservation is given authority to
acquire land by purchase, gift, lease or devise or to control land
with the consent of the owners, — a new provision which authorizes
the Commissioner to exercise the same powers to conserve, protect
and increase wild life, which he has been previously granted over
land actually acquired for such sanctuaries, upon any land not
66 P.D. 12.
acquired "adjacent to or reasonably near such wild life sanctuary
as he may deem advisable."
The extent of such powers and the mode of their authorized exer-
cise, "in respect to any territory mentioned in sections one hundred
and fourteen and one hundred and fifteen" of said chapter 131,
which includes both the territory acquired for sanctuaries and the
unacquired adjacent and near territory, by the amendment to sec-
tion 115 included within the scope of that section is set forth in the
amended section 116 incorporated in said Senate Bill No, 236.
These powers are very extensive and their exercise will impose
substantial burdens upon the lands which they affect, amounting to
easements and to such uses as may well deprive owners of the ordi-
nary beneficial use of real estate. The Commonwealth cannot im-
pose such burdens or exercise such rights over lands of individuals
without their consent unless compensation is made for the same.
It is immaterial that, as has been suggested, the names of the own-
ers of some of the lands are not now known. The burdens placed
upon unacquired land by this measure are not of the type which
may sometimes be imposed, in the exercise of the police power,
to protect the public health, safety and welfare, but are of such
a nature that the loss of the free use of land of which the owner
would be deprived amounts to the exercise of the sovereign power
of eminent domain. Lyman v. Commissioners on Fisheries and
Game, 211 Mass. 10. Bent v. Emery, 173 Mass. 495, 496. Since
provision for some mode of paying compensation is a necessary
concomitant of the exercise of the right of eminent domain, and
since the proposed measure makes no provision therefor, either
specifically or by implied reference to other appropriate and exist-
ing laws, the proposed measure, if enacted into law, would be held
to be unconstitutional. Attorney General v. Old Colony R.R. Co.,
160 Mass. 62, 93. Connecticut River R.R. Co. v Franklin County,
127 Mass. 50. hi re Mayor and AldermeM of Taunton, 290 Mass.
118, 122.
As regards the substitute Senate Bill No. 236, I am of the
opinion that if enacted into law it would not be held to be uncon-
stitutional. Laws for the protection of game, such as this, are well
recognized as a legitimate exercise of the police power of the State.
Such laws are not required to be uniform throughout the State,
and may be and often are made applicable to particular localities
as regards certain kind of game. State v. Adams, 142 Ark. 411.
The ownership of all wild game within the boundaries of the
State is in the citizens of that State in their collective sovereign
capacity, and the State, as their representative, holds the title in
trust for the benefit of all its people. The power of the State to
promulgate and enforce regulations for the protection of wild
game rests not only upon its inherent right in the administration
of this trust for the benefit of all its people, but also upon its police
power for the conservation of a supply of food owned in common
by all its inhabitants. Geer v. Connecticut, 161 U. S. 519. New
York V. Hesterherg, 211 U. S. 31. Dapson v. Daly, 257 Mass. 195,
196. The owner of the land has the exclusive right to take wild
fowl and wild game upon his own land, but only in accordance with
such reguations as the State may prescribe as to the time and
manner of capturing or killing game, and subject to total prohibi-
P.D. 12 67
tion of taking or killing certain forms of wild game or wild fowl if
the State so prohibits. Peovle v. Clair, 221 N. Y. 108.
The owner of the land has no title to the wild game and wild
fowl in their natural state thereon (Commonwealth v. Chace,
9 Pick. 15), and his right to hunt or capture the same is held sub-
ject to regulation or prohibition by the Commonwealth, enacted for
the general good. Geer- v. Connecticut, 161 U. S. 519. Barrett v.
State, 220 N. Y. 423.
Very truly yours,
Paul A. Dever, Attorney General.
Old Age Assistance — Lump Sum Payment.
April 26, 1938.
Hon. Walter V. McCarthy, Commissioner of Public Welfare.
Dear Sir : — You have written me as follows : —
"A recipient of old age assistance, now residing in the town of
Wellesley, who has a legal settlement in Lexington, can be admitted
to the Lexington Home for Aged People, a private charitable cor-
poration, and secure life care for the sum of $300, but the fee of
$300 must be paid at the time of admission. The recipient of
assistance has no funds to pay such admission fee, and is request-
ing the local bureau of old age assistance to pay the admission fee.
If such action is taken, this department will be requested to ap-
prove the State's share of reimbursement.
I am therefore requesting your opinion as to whether or not you
feel that the local bureau of old age assistance has authority under
the law to make a lump sum payment for life care in such a private
charitable corporation ; and also whether or not this department
has authority to approve reimbursement for such assistance."
There does not appear to be any provision of the applicable
statute, G. L. (Ter. Ed.) c. 118A, as amended, nor of the rules of
your department made thereunder, which authorizes the payment
to an aged person of what you refer to in your letter as a "lump
sum payment for life care in a private charitable corporation."
Indeed, such a payment would be directly contrary to the fourth of
said rules. Such a payment as you describe is, from its nature,
necessarily larger in amount than is necessary at the instant time
for the "adequate assistance" of said aged person, and is not the
type of payment authorized by section 1 of said G. L. (Ter. Ed.)
c. USA.
It is to be gathered from the context of your letter that by the
payment of "a lump sum" of $300, which will be used to place the
said aged person in a home of such a character that further assist-
ance will not have to be paid, by virtue of the proviso contained
in said section 1, while the aged person remains in such home, it is
hoped that a saving will be made over future sums which might
otherwise have to be disbursed for assistance to such aged person.
Whether or not such a saving would be made is, of course, prob-
68 P.D. 12.
lematic. Such aged person might not continue as an inmate or
the said home might cease to function. No lawful binding agree-
ment could be made by which the aged person bargained away her
right to any or all future assistance which might become necessary
and to which she would be entitled under the statute.
I am accordingly of the opinion that upon the facts which you
have set forth no power exists in any officials to make the kind of
"lump sum payment" which you have described, and that your
department has no authority to approve reimbursement for so-
called assistance furnished in the manner you have described.
Very truly yours,
Paul A. Dever, Attorney General.
Civil Service — Eligible List — Extension.
April 27, 1938.
Mr. John C. Gilbert, Executive Secretary, Department of Civil
Service and Registration.
Dear Sir : — You inform me that the list established on March
27, 1936, for the promotion of captains in the Boston police depart-
ment would expire, by virtue of section 2 of Rule 12, on March
27, 1938, unless it was continued for cause; that on March 26, 1938,
the Police Commissioner for the City of Boston wrote the Commis-
sioner of Civil Service requesting that the said list be extended,
but that the Commissioner did not receive this letter until subse-
quent to March 28, 1938. You request my opinion as to the compe-
tency of the Commissioner of Civil Service to continue this list by
any action he might take subsequent to the last-mentioned date.
Section 2 of Civil Service Rule 12 provides as follows : —
"No person shall remain eligible for more than two years upon
any eligible list unless the Commissioner shall for cause continue
the eligibility beyond said period."
The rules of the Commission have the force of law and must be
observed. Attorney General v. Trehy, 178 Mass. 186 ; Munds v.
Superintendent of Streets, 264 Mass. 242. The instant section,
however, does not inexorably require the expiration of a list after
the period of two years from its establishment. It reserves power
in the Commissioner to extend the life of such a list if cause to do so
is found by him. The question is whether or not he has power to
extend the list, if such cause is found to exist therefor, by acting
subsequent to two years from the date when the list was first
established.
Sometimes a statute providing a remedy fixes a time within
which proceedings must be brought, and in all such cases the time
has been held to be an essential part of the remedy and the right
is lost if proceedings to enforce it are not had within the prescribed
time. In such cases the period of time must be considered as man-
datory and so not permitting of any exceptions or exemptions.
An examination of such statutes readily discloses a legislative
P.D. 12 69
intent to fix a definite and absolute time beyond which rights
cannot be asserted. Hack v. Nason, 190 Mass. 346; The Harris-
burg, 119 U. S. 199; McRae v. New York, Neiv Haven & Hartford
R.R. Co., 199 Mass. 418; Crosbij v. Boston Elevated Ry. Co., 238
Mass. 564 ; Jordan v. Bristol County Commissioners, 268 Mass. 329.
Ordinarily, however, the time within which an act may be
performed is a matter of limitation which, according to the
phraseology of the statute or rule, may vest discretion, upon cer-
tain conditions, to extend the time in which an act may be done.
The application of this principle finds frequent illustrations in the
operations of rules of court, which, like the rules of your Commis-
sion, have the binding force of law. Kelley v. Riley, 106 Mass. 339 ;
Dolan V. Boott Cotton Mills, 185 Mass. 576; Nye v. Whittemore,
193 Mass. 208 ; Whitney v. Hunt-Spiller Mfg. Corp., 218 Mass. 318 ;
Prunier v. Schidman, 261 Mass. 417; Boston Morris Plan Co. v.
Barrett, 272 Mass. 487.
Whether adequate cause exists for an extension of the list in
question is a pure question of fact beyond my province to decide,
but which is within the exclusive jurisdiction, in the first instance
at least, of the Commissioner of Civil Service to determine. If he
finds that the cause is suflScient to invoke his discretion and judg-
ment, then you are advised that he may, on a date subsequent to
two years from the date in which the list was first established,
extend said list to such reasonable period as he may determine.
Very truly yours,
Paul A. Dever, Attorney General.
Alcoholic Beverages — License — "Package Goods" Store —
Reneivals.
April 29, 1938.
Alcoholic Beverages Control Commission.
Gentlemen : — You have advised me that a certain corporation
held a "package goods" store license at a given location in Boston
during the years 1935 and 1936, and that its license at said location
was not renewed for the year 1937 nor was it given a license at any
other location, although it applied for renewal at such location and
for a license at various other locations in Boston. It has now
applied for a license in Boston for 1938.
Upon these facts you have asked my opinion on the following
questions : —
"1. Whether or not a certain corporation, not having been
granted a renewal of the 'package goods' store license which it held
during 1936, could have been legally granf the result reached, . . ."
The principle applicable to all rate and price fixing by public
utility companies, namely, that the rate or price fixed must be
such as to give the company a fair return upon the reasonable value
of the property at the time it is being used, and that a determina-
tion made without regard to such principle will be considered
confiscatory and so outside the legislative power under the con-
stitutional guarantee of the Fourteenth Amendment to the Con-
stitution of the United States, has been determined by a long line
of cases. Smyth v. A7nes, 169 U. S, 466. San Diego &c. Co. v.
National City, 174 U. S. 739. Minnesota Rate Cases, 230 U. S. 352.
Southwestern Bell Tel. Co. v. Public Service Covfimission, 262 U. S.
276. Georgia Ry. & Power Co. v. Railroad Commission, 262 U. S.
625. Bluefield Water Works &c. Co. v. Public Service Commission,
262 U. S. 679. Hence, I am of the opinion that the proposed meas-
ure, if enacted into law, would not be constitutional.
It may also well be doubted whether a legislative classification
of the single company named in the proposed bill, to constitute a
class whose maximum rates are to be fixed by a rule not applicable
to other companies similarly placed, is a constitutional exercise of
legislative authority. No reasonable basis for such a classification
is shown by the proposed measure itself, and I have been apprised
of none. If no such reasonable basis in fact exists for so classify-
ing the particular company named in the measure, the proposed act
could not be said to be constitutional, but would, if enacted into
law, be held by the courts to be in violation of the guarantee of the
"equal protection of the laws," within the meaning of the Four-
teenth Amendment to the Constitution of the United States. As
was stated in Gulf &c. Ry. Co. v. Ellis, 165 U. S. 150, 159,—
76 P.D. 12.
"Arbitrary selection can never be justified by calling it classifi-
cation. The equal protection demanded by the Fourteenth Amend-
ment forbids this."
Very truly yours,
Paul A. Dever, Attorney General.
Licensing Commission — Municipality — Members.
May 13, 1938.
To the Hoicse of Representatives.
Gentlemen : — I am in receipt from you of the following order
dated May 12, 1938 : —
''Ordered, That the House of Representatives hereby requests
the opinion of the Attorney General on the following question with
relation to current House document numbered seven hundred and
ninety-four, entitled 'An Act relative to the Membership of the
Licensing Commission of the City of Somerville' : — Is the licens-
ing commission of the city of Somerville subject to any provision
of law requiring the members of said commission to be appointed
from the two leading political parties?"
I answer your question to the effect that at the instant time the
city of Somerville is not subject to any provision of law requiring
the members of its licensing commission to be appointed from
the two leading political parties.
By a special act relative to the city of Somerville, St. 1923, c. 191,
it was provided : —
"Section 1. The city of Somerville may by ordinance establish a
licensing commission . . . The members of said commission shall
be appointed by the mayor, subject to confirmation by the board
of aldermen. . . . The powers and duties of licensing boards, men-
tioned in section four of chapter one hundred and thirty-eight
of the General Laws shall vest in said commission.
Section 2. This act shall take effect upon its acceptance by
vote of the board of aldermen of said city, subject to the provisions
of its charter; provided, that such acceptance occurs prior to
December thirty-first in the current year."
This act was approved March 29, 1923. It was accepted by the
board of aldermen, with the approval of the mayor, on May 29,
1923. Thereafter, by an ordinance (now Revised Ordinances of
Somerville, c. XV) a licensing commission was established under
the provisions of St. 1923, c. 191, and it was provided that the
commission should be composed of three residents of the city and
be appointed by the mayor, subject to the approval of the board of
aldermen. No provision was contained in such ordinance for a bi-
partisan membership. The provisions of G. L. (Ter. Ed.) c. 138,
§ 4, as amended, provide : —
"In each city which is not exempt by the provisions of section ten
there shall be a licensing board appointed by the mayor, . . . con-
sisting of three persons. . . . One member shall be appointed from
P.D. 12 77
each of the two leading political parties and the third member may
also be appointed from one of said parties."
By said section 10 of said chapter 138, as amended, it is pro-
vided, with relation to the exemption alluded to in said section 4,
as follows : —
"The following cities shall be exempt from the operation of the
six preceding sections : First, cities having a licensing board or
commission created by special statute or under the provisions of a
charter. . . ."
The licensing board established by ordinance of the city of Som-
erville, as aforesaid, under the provisions of said chapter 191, is a
licensing board "created by special statute," namely, said chapter
191, as the words "created by special statute" are employed by the
General Court in said section 10.
It follows from the foregoing that if it is the desire of the Legis-
lature to provide for a bipartisan licensing commission in the city
of Somerville new legislation looking to that end, as suggested by
House Document No. 794, is necessary to the accomplishment of
such desire.
Very truly yours,
Paul A. Dever, Attorney General
Cattle — Importation — Rules.
May 19, 1938.
Hon. William Casey, Commissioner of Agriculture.
Dear Sir : — You have requested my opinion upon certain ques-
tions in reference to St. 1938, c. 168, "An Act relative to the control
of the importation of animals affected with Bang's abortion dis-
ease," approved April 5, 1938. The statute reads : —
"Whoever ships, drives or transports into the Commonwealth
cattle to be used for dairy purposes . . ."
Your first question is: "Is the person who owns the cattle or
who makes arrangements for the shipment of the same liable
as well as the person who actually drives or transports the cattle?"
I answer your first question in the affirmative.
Your second question is : "Does this apply to common carriers
such as railroads, express companies, etc.?"
I answer your second question in the affirmative.
Your third question is : "Does the term 'to be used for dairy pur-
poses' include bulls maintained in dairy herds for service pur-
poses?"
I answer your third question in the affirmative.
Your fourth question is: "Would it apply to cattle, ultimately
intended for dairy purposes, which are shipped into this State for
pasture purposes?"
I answer your fourth question in the affirmative.
Your fifth question is : "Would it pertain to the return into this
78 P.D. 12.
State of cattle that had been previously shipped, out for pasture
purposes?"
I answer your fifth question in the affirmative.
Your sixth question is : "Referring to the requirement 'accompa-
nied by a certificate of health,' what disposition is to be made of
cattle which do not comply with this requirement?"
I am of the opinion that if this requirement is not complied with
your department can take care of any violation under proper rules
and regulations approved by the Governor and Council, as your
department is authorized so to do under the provisions of G. L.
(Ter. Ed.) c. 129, § 2.
Your seventh question is : "Has the Director of the Division of
Livestock Disease Control the right to make rules and regulations
under section 2 of said chapter 129, authorizing the return of such
cattle to the State of origin or otherwise compelling the slaughter
of such cattle?"
I answer your seventh question in the affirmative. See G. L.
(Ter. Ed.) c. 129, § 2.
Your eighth question is : "Referring to the penalty, 'shall be pun-
ished by a fine of not more than two hundred dollars,' is the receipt
of such cattle unaccompanied by a certificate sufficient evidence
in order to prosecute?"
I answer your eighth question in the affirmative.
Your ninth question is : "Is it necessary to have witnesses to the
actual movement of the cattle into this State?"
I answer your ninth question in the negative.
Your tenth question is : "Does punishment of the offender dis-
pose of the case as far as the animal is concerned?"
I answer your tenth question in the affirmative. Your depart-
ment, should it deem it necessary, may make reasonable orders,
rules and regulations, under G. L. (Ter. Ed.) c. 129, § 2, to take
care of a situation of this kind.
Your eleventh question is : "Will prosecution of such cases be
conducted by the Department of the Attorney General?"
The prosecution of such cases may be conducted under the usual
routine of your department.
Very truly yours,
Paul A. Dever, Attorney General.
Civil Service — Town Fire Department — Acceptance of Statute.
May 20, 1938.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir : — You have written me as follows : —
"On March 26, 1913, the town clerk of the town of Great Bar-
rington notified this office that at the annual town meeting on
March 24, 1913, the town voted to accept the provisions of R. L.
c. 19, so far as the same apply to police and firemen of that town.
It later developed that the town had no fire department but a fire
district which was established in 1850. . . .
P.D. 12 79
The town now desires to have a fire department of its own, and
I have been requested to rule whether or not the action of the town
taken in 1913, accepting the provisions of R. L. c. 19, so far as the
same apply to police and firemen of the town, is still applicable to
a fire department now to be created. Will you kindly give me your
opinion in this matter."
The fact that the town did not have a toicm fire department in
existence at the time of its acceptance of the provisions of the Civil
Service Law applicable to such a department does not vitiate such
acceptance. The town is now in the position of having accepted
the Civil Service Law as applicable to firemen who may be in its
employ. It is immaterial that there were none at the time the law
was accepted. There is nothing in the Civil Service Law which
indicates an intention on the part of the Legislature that accept-
ance of this law by a town shall be applicable only to such munici-
pal services as may be in existence at the actual date of the accept-
ance. Once the law has been accepted, the members of a town fire
department, when the same comes into existence, come within its
sweep and are protected thereby without the necessity of further
action by the town.
Very truly yours,
Paul A. Dever, Attorney General.
Secretary of the Commonwealth — Registration of Device.
May 24, 1938.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir : — I am in receipt from you of the following letter : —
"There has been presented for filing in this office, under the pro-
visions of G. L. (Ter. Ed.) c. 110, §§ 8 and 9, an insignia, badge
or emblem, the essential feature of which consists of the represen-
tation of a circle quadrisected into four equal segments by a cross
consisting of two lines crossing in the center at right angles, each
of the four arms of the cross being equal in length and extending
to the circumference of the circle, . . .
I respectfully request your opinion as to whether or not, under
the provisions of the above-cited sections of said chapter 110, it is
proper for me to register the . . . insignia as it stands, or is it
necessary to have, accompanying the same and part thereof, iden-
tifying words or phrases."
I am of the opinion that it is proper for you to register the above-
mentioned device or insignia as it stands, and that it is not required
by law that there should be accompanying the same, and part
thereof, words or phrases.
The applicable portions of the statute, G. L. (Ter. Ed.) c. 110,
§§ 8 and 9, read: —
"Section 8. A person may adopt a label, not previously owned
or adopted by any other person, and file such label for record, by
depositing two copies or facsimiles thereof in the office of the state
so P.D. 12.
secretary, one of which copies or facsimiles shall be attached by
the secretary to the certificate of record hereinafter referred to.
The applicant shall file with the label a certificate specifying the
name of the person filing it, his residence or place of business, the
kind of merchandise to which such label has been or is intended
to be appropriated, and the length of time, if any, during which it
has been in use. If such label has not been and is not intended to
be used in connection with merchandise, the particular purpose or
use for which it has been oi<^is intended shall be stated in the cer-
tificate. Such certificate shcuiobe accompanied by a written dec-
laration, sworn to by thf^„^;5r^n or by a member of the firm or by
an officer of the assocl^cion, union or corporation by which it is
filed, that the party so filing such label has a right to use the same,
and that no other party has the right to such use, either in the
identical form or in any such near resemblance thereto as may be
calculated to deceive, and that the copies or facsimiles filed there-
with are true. The secretary shall file the certificate in his oflfice
and issue to the party depositing it a certificate of record under
the seal of the commonwealth. Such certificate of record or a cer-
tified copy of its record shall in all suits and prosecutions under
this section and sections ten to fifteen, inclusive, be sufficient proof
of the recording of such label and of the existence of the person
named in the certificate. The fee for filing the certificate and dec-
laration and issuing the certificate of record shall be twenty-five
dollars. No label shall be recorded which could reasonably be mis-
taken for a label already on record.
If a label duly recorded as aforesaid is assigned by an instru-
ment in writing under seal, such assignment may be filed. Upon
the filing of an assignment the secretary shall issue to the assignee
a certificate thereof. The fee for filing the assignment and issuing
such certificate shall be twenty-five dollars.
Section 9. The state secretary may make regulations, and pre-
scribe forms for the filing of labels, under the preceding section.
This and the preceding section, so far as applicable, shall apply to
the insignia, ribbons, badges, rosettes, buttons and emblems of any
society, association or labor union."
The word "label," used in said section 8, commonly denotes a
paper or tag of some material, which is to be placed upon, or an-
nexed to, an article for the purpose of identifying it or describing
it or its contents. As used in the above-quoted sections the mean-
ing of the word does not appear to be limited to the two latter pur-
poses, as to which words might be considered essential. Its mean-
ing is broader. It is stated in said section 8 that it may be for
use in connection with other things than merchandise. Identifi-
cation may be accomplished by the use of other means than words.
The use of a particular device may be a means of identification
quite as much as a word or words.
The word "insignia" as used in its context in said section 9, like
"badge" or "emblem," plainly does not denote a device which neces-
sarily must have words placed upon it.
Very truly yours,
Paul A. Dever, Attorney GetieraL
P.D. 12 81
Governor — Approval of Legislative Acts — Appropriation.
May 25, 1938.
His Excellency Charles F. Hurley, . Governor of the Common-
wealth.
Sir : — You inform me that House Bill No. 1800, being the gen-
eral appropriation bill, and House Bill No. 2026, entitled "An Act
providing for the payment by the commonwealth to its munici-
palities of a part of the proceeds ; -=:^he gasoline tax," have been
passed by the General Court and havel .en, presented to Your Ex-
cellency for approval.
You request my opinion on the following questions : —
"1. What effect would my approval on either of the bills men-
tioned herein have on the other bill mentioned herein?
2. Is House Bill 2026, the $8,000,000 bill, legally before me for
consideration?"
In regard to your first inquiry, it is plain that the subject matter
of each bill is separate and distinct from that embraced in the
other, and that each bill is mutually independent of the other. They
are not integral parts of a single enactment so intimately and
firmly connected as to constitute a complete, entire unit, and there-
fore they do not demonstrate a legislative intent that neither should
be enacted into law in the absence of the other.
You are accordingly advised that the approval of one of these
bills would in no way affect the other.
House Bill No. 2026 provides: "There shall be paid, without
appropriation, from the Highway Fund as soon as may be to the
several cities and towns for expenditure under the direction of
their respective highway departments for local highway purposes
only, . . . the sum of eight million dollars."
It becomes necessary to examine the nature and characteristics
of this act in order to determine whether it is in fact and in truth
an appropriating measure, and, if so, then to decide whether it was
within the competency of the General Court to pass the measure
prior to the enactment of the general appropriation bill.
The instant act designates the disbursement from the public
treasury of a definite sum from a particular source to cities and
towns, to be expended by them for the construction and repair of
local roads, streets and highways, and for surface drainage, side-
walks and curbing, and for traffic control and snow removal. The
same is to be paid from the Highway Fund, referred to in G. L.
(Ter. Ed.) c. 90, § 34, and the proceeds from which are public
revenues which, by virtue of Mass. Const. Amend. LXIII, § 1, have
been paid into the State treasury. Moreover, this money is not
segregated from other public receipts and is not earmarked for any
specific purpose, and constitutes a part of the public revenues. A
recent attempt to have the moneys received from the gasoline tax
permanently employed for a single public purpose has been held
to constitute a specific appropriation of money from the treasury of
the Commonwealth, and accordingly was excluded from the opera-
tion of the initiative and referendum provisions of Mass. Const.
Amend. XLVIII. Such funds do not constitute a trust fund, as
82 P.D. 12.
do the contributions received under the Massachusetts Unemploy-
ment Compensation Law. Hoives Br'os. Co. v. Massachusetts Un-
employment Compensation Commission, Mass. Adv. Sh, (1936)
2379, 2392.
Indubitably, the Legislature had the power to appropriate the
funds in question for the purpose expressed in the bill. Our pres-
ent inquiry is as to the effect and purport of the act. The language
is mandatory that the money shall be paid ; and the time when such
money payments shall be made is as soon as may be. The recipi-
ents are enumerated, the rate of payment to each is defined, and
the purpose for which the money is to be expended is specified.
There does not seem to be anything lacking to constitute a complete
appropriating measure. Such a measure has been defined by one
of my predecessors (V Op. Atty. Gen. 613) as follows: —
"The mere passage of an act by the Legislature, the carrying
out of which will necessitate the expenditure of moneys from the
treasury of the Commonwealth, does not of itself necessarily con-
stitute an appropriation. . . . What is necessary is explicit language
setting apart or making available a sum of money to be applied
towards the carrying out of the particular purposes of the act, or
a general appropriation bill in which a sum of money is set apart
or made available to be applied towards expenditures in a particu-
lar department or for a particular purpose as mentioned therein."
The act in question clearly comes within the sweep of this defi-
nition.
House Bill No. 2026 inaugurates a new policy relative to the
distribution of the proceeds of the gasoline tax, and hence its effect
cannot be limited to the distribution of moneys already appropri-
ated. It does not merely provide that certain sums are authorized
to be appropriated, as does Title III of the Social Security Act of
August 14, 1935, c. 531, 41 St. at L. 620. Steward Machine Co. v.
Davis, 301 U. S. 548. 577. The bill in question makes a present
appropriation of $8,000,000.
The words "without appropriation," apearing in the first line of
the bill, must be interpreted as meaning without further appropri-
ation ; otherwise it would be entirely inconsistent with the domi-
nant aim of the bill, as the money cannot be paid out of the public
treasury without an actual appropriation, and it would be incon-
ceivable that all the Legislature intended to do was merely to lay
aside the designated sum without providing for its distribution to
the cities and towns. Barrenness of accomplishment is never to be
attributed to the legislative branch of the government. Flood v.
Hodges, 231 Mass. 252, 257. Commissioner of Banks in re Pmiden-
tial Trust Co., 244 Mass. 64, 70. Moreover, the intent of the Legis-
lature as expressed in the proposed measure is to be gathered from
the context of the measure as a whole, and particular phrases are
to be read in the light of such context. The act itself clearly pro-
vides for the payment of money to various municipalities.
A legislative practice has long been established to authorize the
payment of money without any separate appropriation on each
occasion where, in the ordinary administration, instances arise
requiring reimbursements to be made to citizens who have made
payments found to be excessive or wholly illegal. G. L. (Ter. Ed.)
P.D. 12 83
c. 8, § 7; c. 29, § 18 ; c. 58, §§ 18-25; c. 62, §§ 43, 46; c. 63, §§ 6,
18A, 28, 51, 60 ; c. 64, § 6 ; c. 64A, § 7 ; c. 65, § 27 ; c. 65A, §§ 6, 7 ;
c. 70, § 1 ; c. 90, § 2. They may in form be appropriating measures
facilitating the accomplishment of routine matters, but some may
authorize the distribution of funds theretofore made available.
None are operative without a prior appropriation.
The Constitution provides that special appropriation bills must,
as does the one in question, specify the means by which the appro-
priation shall be defrayed, and further requires that such bills, in
the absence of a recommendation of the Governor, cannot be en-
acted until final action has been had on the general appropriation
bill. Mass. Const. Amend. LXIII, §§ 3 and 4. It is clear that no
final action has yet been taken on the budget. "No money can be
paid out of the treasury except under the provisions of the budget
which require both executive and legislative sanction." Opinion
of the Justices, Mass. Adv. Sh. (1937) 811, 814. The law making
department of the Commonwealth is not in the Legislature alone.
It is entrusted to both the Chief Executive and the General Court,
and one is as much an essential factor as the other. Matter of
Doyle, 257 N. Y. 244, 261. Smiley v. Holm, 285 U. S. 355, 368.
Ordinarily, the General Court initiates and the Governor com-
pletes- legislation. In any event, a law cannot be enacted without
giving the Chief Executive an opportunity to approve or disap-
prove it. Tuttle V. Boston, 215 Mass. 57. Okanogan Indians v.
United States, 279 U. S. 655.
The debates in the Constitutional Convention relative to this
amendment clearly show that it was the intent of the framers of
the amendment that the general appropriation bill should be dis-
posed of by final action of both the legislative and executive
branches of the government before any special appropriation bill,
in the absence of the recommendation of the Governor, should be
enacted. See Debates of the Constitutional Convention, 1917-1918,
vol. 3, pp. 1146, 1148, 1152.
Your second inquiry is therefore answered in the negative.
Very truly yours,
Paul A. Dever, Attorney General.
Constitutional Law — Practice of Optometry — Unreasonable
Restriction.
May 26, 1938.
His Excellency Charles F. Hurley, Governor of the Common-
wealth.
Sir : — In accordance with your request I have examined
amended House Bill No. 1925, entitled "An Act relative to the prac-
tice of optometry."
In my opinion, the first and second sections of this bill, which
regulates the practice of optometry, would, if enacted into law, be
constitutional. The Supreme Judicial Court of this State has re-
cently held that the practice of optometry is in the nature of a
profession. McMurdo v. Getter, Mass. Adv. Sh. (1937) 1355.
84 P.D. 12.
These sections are regulatory measures concerning the profes-
sional conduct of those who, after being found duly qualified, are
authorized by the Commonwealth to practice their profession.
The supervision and control of those so engaged is an appropriate
subject for legislation, in the interests of the public health. Com-
7nomvealth v. Houtenhrink, 235 Mass. 320. Commomvealth v.
S. S. Kresge Co., 267 Mass. 145. Semler v. Oregon, 294 U. S. 608.
Roschen v. Ward, 279 U. S. 337.
The provisions of this bill contained in section 3, however, add-
ing a new section, section 73B, to G. L. (Ter. Ed.) c. 112, are of a
different character, and go to such an extent in attempting to regu-
late the conduct of a person practicing optometry as to make
prohibitions which cannot be said to be reasonable, but are of such
a nature that they appear to be purely arbitrary, even indulging
every possible presumption which might be made in favor of acts
of the Legislature by a court considering the constitutionality of
this measure.
This section in effect provides that an optometrist shall not prac-
tice his profession on premises not separate from premises
whereon any business other than the practice of medicine, den-
tistry or optometry is being conducted by any other person. It
is possible that there may be certain kinds of business which are of
such a nature that it would be reasonable to exclude from premises
which they occupied persons practicing optometry, but it cannot
be said with any show of reason that "any business," no matter
what it may be, with the exception only of the practice of medicine,
dentistry or optometry, falls within such a group. The Legisla-
ture may not exercise the power which it has to regulate optome-
try by the imposition of unreasonable prohibitions upon the exer-
cise of rights common to all citizens. A State cannot, "under the
guise of protecting the public, arbitrarily interfere with private
business or prohibit lawful occupations or impose unreasonable
or unnecessary restrictions upon them." Louis K. Liggett Co. v.
Bdldridge, 278 U. S. 105. Wyeth v. Cambridge Board of Health,
200 Mass. 474, 478. Opinion of the Justices, Mass. Adv. Sh.
(1938) 795.
If the provisions of this act had been made separable, it may
well be that the first two sections could have been supported, as
I have suggested, irrespective of the third, but inasmuch as in
its present form they are not so separable, the act itself must be
considered as unconstitutional, in view of the considerations which
I have outlined.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 85
Constitutional Law — Practice of Optometry — Reasonable
Restriction.
June 9, 1938.
His Excellency Charles F. Hurley, Governor of the Common-
wealth.
Sir : — In accordance with your request, I have examined House
Bill No. 1925 as finally amended, entitled "An Act relative to the
practice of optometry,"
In this final amendment the first and second sections of the bill
are in the same form as when previously submitted to me by you,
and as to which I then stated in my letter to you, of May 26, 1938
{ante, p. 83), that they were, in my opinion, ^constitutional.
The new provisions now contained in the amended bill in its
instant form differ from those contained in the third section of the
bill in the earlier form, which you submitted to me and as to
which I advised you in my letter of May 26th that the provisions
as then contained in the third section were not, in my opinion,
constitutional ; and that not then being separable provisions the
whole act should properly be considered as unconstitutional.
The third section of the bill as previously written and considered
by me in effect provided that an optometrist might not practice
his profession on premises not separate from premises whereon
any business other than the practice of medicine, dentistry or
optometry was being conducted by any other person.
I stated in my letter to you of May 26th that, while it is possible
that there may be certain kinds of business which are of such a
nature that it would be reasonable to exclude from premises which
they occupied persons practicing optometry, it could not be said
with any show of reason that "any business," no matter what,
with the exception only of the practice of medicine, dentistry or
optometry, could be said to fall within such a group.
The bill as now amended, in place of the provision formerly
contained therein, — "No person shall practice optometry on
premises not separate from premises whereon any business other
than the practice of medicine, dentistry or optometry is being con-
ducted", — now contains the phrase : "No person shall practice
optometry on premises not separate from premises whereon eye-
glasses, lenses or eyeglass frames are sold by any other person."
The prohibition of this latter phrase does not apply to premises
where any business other than medicine, dentistry or optometry is
being practiced, but is limited to premises whereon eyeglasses,
lenses or eyeglass frames are sold by any other person. This
latter prohibition, as it now appears, is very different in character
from the former sweeping prohibition which seemed to be so un-
reasonable as to be outside the authority of the Legislature to
enact.
The provisions of the bill as finally amended are now made sep-
arable, but, irrespective of that, the present prohibition cannot be
said to be so unrelated to the accomplishment of the purpose of
the measure and the proper regulation of the practice of optometry
that its enactment by the Legislature, in the exercise of the judg-
ment of the General Court, can be pronounced unreasonable or
86 P.D. 12.
arbitrary, and consequently, in my opinion, the amended bill in its
present form is constitutional.
Such supervision and control, of those engaged in the practice
of a profession such as optometry, as is now established by the
present amended bill is an appropriate subject for legislation in
the interests of the public health. Nebbia v. New York, 291 U. S.
502. Commom»ealth v. S. S. Kresge Co., 267 Mass. 145.
McNaughton v. Johnson, 242 U. S. 344. Semler v. Oregon, 294
U. S. 608. Roschen v. Ward, 279 U. S. 337.
Very truly yours,
Paul A. Dever, Attorney General.
Civil Service — Municipal Plan B — Confirmation of
Appointmerit by City Council.
June 15, 1938.
Hon. Thomas H. Green, Confimissioner of Civil Service.
Dear Sir : — You have requested my opinion as to whether the
position of city engineer of Marlboro was to be considered that of
a head of a principal department of the city, and so exempt from
classification under civil service. You directed my attention to the
provisions of chapter 25 of the ordinances of the city of Marlboro
but did not advise me that since the passage of said ordinance in
1892 the said city had adopted Charter Plan B, G. L. (Ter. Ed.)
c. 43, as modified by St. 1922, c. 275. Bradley v. Marlboro, Mass.
Adv. Sh. (1936) 2365.
My answer to your request of March 14, 1938 (not published),
was not predicated upon the adoption of such plan by the said city.
The said city is now, however, operating under charter Plan B,
as modified. In view of this, my opinion of March 14th is inappli-
cable to the situation regarding which you inquired, and I substi-
tute therefor this communication.
I now advise you that since the adoption by said city of charter
Plan B, as modified, so much of the said ordinance 25 as was incon-
sistent with the terms of charter Plan B became of no effect and is
to be disregarded. Dooling v. Fitchburg, 242 Mass. 599, 603.
Mayor of Cambridge v. Cambridge, 228 Mass. 249. King v.
Quincy, 270 Mass. 185.
The provisions of the ordinance which are not incompatible with
the terms of the charter continue in force, if not repealed, modified
or superseded. I am not advised that they have been so affected.
The powers and duties of the officers and employees created under
such ordinances likewise continue. G. L. (Ter. Ed.) c. 43, §§ 4
and 5.
Under the terms of charter Plan B, as modified, all heads of de-
partments are to be appointed and removed by the mayor, subject
to confirmation by the city council. G. L. (Ter. Ed.) c. 43, § 60.
There is to be a city council but no board of aldermen (§ 59). The
mayor is to be the chief executive officer (§ 58).
It is plain that the said ordinance 25 established a "department
of city engineering." The provisions of said ordinance for a joint
r.D. 12 87
standing committee consisting of members of the city council and
the board of aldermen became void and inoperative because mani-
festly incompatible with the single council system established by
charter Plan B, and all the provisions of said ordinance regarding
the authority of such committee likewise fall. With these provi-
sions removed, the city engineer, whose position is created by the
ordinance and whose duties are enumerated therein, becomes of
necessity, from the fact that no body exists under which he must
immediately function and from the character of the duties assigned
him by the ordinance, the head of the department of civil engi-
neering. As such he exists under the charter, by virtue of the valid
provisions of the said ordinance, as one of the "heads of depart-
ments" of the city who is to be appointed by the mayor, subject
to confirmation by the city council. Under G. L. (Ter. Ed.) c. 31,
§ 5, it is provided that "officers whose appointment is subject to
confirmation ... by the city council" are to be outside the sweep
of the Civil Service Rules.
Very truly yours,
Paul A. Dever, Attorney General.
Probation — Payments for Support of Prisoner's Wife — Con-
struction of Statute.
June 21, 1938.
Board of Probation.
Gentlemen : — You have asked my opinion relative to the duty
of penal institution superintendents, imposed by G. L. (Ter. Ed.)
c. 273, § 9, to pay over to the probation officer money for the sup-
port of a prisoner's wife and minor children, in cases where the
court imposing sentence, under G. L. (Ter. Ed.) c. 273, § 1, upon
a husband or father finds a wife or child "to be in destitute or
needy circumstances." You inquire particularly as to whether said
superintendents have such a duty to perform now in connection
with prisoners' sentences prior to the repeal of said G. L. (Ter.
Ed.) c. 273, § 9, by St. 1938, c. 219.
In a letter of June 15th (not published) I advised you that said
chapter 219 became effective on May 14th. Said chapter 219, in
its first section, repealed said section 9 of chapter 273 in the fol-
lowing language : —
"Section nine of chapter two hundred and seventy-three of the
General Laws, as appearing in the Tercentenary Edition, is hereby
repealed."
The effect of such repeal is to remove from the said superin-
tendents the duty which was imposed upon them by said section 9,
now repealed, to pay over money to the probation officer ; and that
duty is removed in all cases, both as to prisoners sentenced before
the effective date of the repealing act, St. 1938, c. 219, as well as
to those sentenced thereafter.
No hardship is worked upon the prisoner sentenced before the
effective date of the repealing act by such a construction. The
88 P.D. 12.
requirement for a payment of money under said section 9 was not
a part of the sentence imposed by a judge, as such, like the fines
imposed by courts, mentioned in section 3 of said chapter 273, but
was a requirement made by the Legislature for the accomplishment
of something thereafter, then considered by it to be conducive to
the general welfare, as a result of an authorized judicial finding
made at the time of sentence. The repeal of said section 9 in no
manner increases the penalty or operates to deprive a prisoner of
substantial rights or privileges to which he was entitled as the
law stood when he was committed or sentenced, nor altered his
situation in relation to his offence, or its consequences, to his dis-
advantage. Therefore, as now applied to prisoners previously sen-
tenced, the striking down of said section 9 is not objectionable as
giving an ex post facto construction or effect to the enactment of
the Legislature, so that it would fall within the condemnation rela-
tive to laws having an ex post facto effect, as set forth in Murphy
v. Commomvealth, 172 Mass. 264, but, instead, brings it within
that class of legislative enactments which deal with penal admin-
istration but not to the detriment of a prisoner previously sen-
tenced. Duncan v. Missouri, 152 U. S. 377. Commonwealth v.
Hall, 97 Mass. 570. Commomvealth v. Wyman, 12 Cush. 237. Nor,
since the law operates to change the duties of the said superin-
tendents from its effective date, has it a retrospective effect, not-
withstanding that the origin of such duties was predicated origi-
nally upon the happening of a previous event.
Very truly yours,
Paul A. Dever, Attorney General.
Probation Officer — Appointmerit — Approval.
June 21, 1938.
Board of Probation.
Gentlemen : You ask my opinion, upon facts which you state,
relative to the appointment of a probation officer in the Second
District Court of Bristol County, under G. L. (Ter. Ed.) c. 276,
§ 83, as most recently amended by St. 1937, c. 186.
You advise me that a person was appointed a probation officer
of said court by the justice thereof on February 19, 1938, "in
accordance with" the above-mentioned statute.
Said statute in its amended form provides, with relation to ap-
Dointments of probation officers in district courts other than in
Suffolk County, that —
". . . the justice of each other district court, with the written
approval of the administrative committee of the district courts who
shall consult the board of probation relative thereto, . . . may ap-
point such male and female probation officers as they may respec-
tively from time to time deem necessary for their respective
courts : . . ."
Since you state in your letter, as above noted, that the appoint-
ment was made "in accordance with" the said statute, I assume
P.D. 12 89
that the written approval of the administrative committee of the
district, courts, which is made a prerequisite to a valid appoint-
ment, had been obtained by the appointing justice. If so, I per-
ceive from the facts stated in your letter no reason why the person
in question was not validly appointed to the position or office of
a probation officer on February 19, 1938. Approval or acceptance
of such an appointment is not required by the statute from the
county commissioners.
As regards the compensation of the said appointee, the said
statute requires that in such a district court as that in which he
appears to have been appointed, ". , . the justice thereof, subject
to the approval of the county commissioners, shall fix the compen-
sation of each probation officer appointed for such court; . . ."
You do not advise me that the amxount of the probation officer's
compensation was fixed by the said justice. If not so fixed by him
it has not yet been established, so that sums may be paid to him
by the county as part of a compensation already established by law.
You state in your letter that in November, 1937, the justice
of the district court "wrote the Bristol County Commissioners
stating that he intended to appoint an additional probation officer,
and asked that the Commissioners appropriate a sufficient sum in
their 1938 budget to take care of this new position."
If your statement of fact contains a recital of all that was done
in this respect by the justice, it could not be said that he had fixed
the salary of the appointee, in the sense in which the word "fix"
is used, with relation to his act, in the statute. If, however, the
justice had in fact actually "fixed" the salary at SI, 800 a year, the
vote of the county commissioners which you have set forth in your
letter would appear to be an "approval" thereof, sufficient to sat-
isfy the provisions of the statute, so that compensation might be
payable by the county from February 19, 1938. It is not possible
from your letter to assume that the step indicated in the last
paragraph had been taken. The Attorney General does not pass
upon questions of fact. It is not necessary, in view of what I
have written, to answer the three questions in your letter categor-
ically. I would suggest that you communicate with the county
treasurer and learn upon what version of the facts in this matter
his failure to pay the officer is predicated, and, if necessary, take
steps to see that the matter is adjusted by whatever strict com-
pliance with the statute may still be called for.
Very truly yours,
Paul A. Dever, Attorney General.
Great Ponds — Fishing — Regulations.
June 24, 1938.
Hon. Ernest J. Dean, Commissioner of Cotiservation.
Dear Sir : — I am in receipt from you of the following letter : —
"Because of the raising of the water above its natural level in
some of our great ponds, through the construction of a dam, a
more or less troublesome problem arises owing to the increased
area that is flooded outside the confines of the original great pond.
90 P.D. 12.
The question is with relation to the fish, and as to whether regu-
lations promulgated in accordance with G. L. (Ter. Ed.) c. 131,
§ 40, are applicable to the entire area flooded or are confined to the
original area of the great pond in question."
It has been said in an opinion of one of my predecessors in oflfice
(VII Op. Atty. Gen. 262, 263), with which I concur: —
"The fact that the area of a great pond has been increased by
a dam or by other artificial means does not change its character
as a great pond. The test is the area covered by the pond in its
earlier, natural condition. Commomvealth v. Tiffany, 119 Mass.
300."
It was also said by our Supreme Judicial Court, in Common-
wealth V. Tiffany, 119 Mass. 300, 303: —
"Pratt's Pond is a natural pond . . . and being in its natural
state more than twenty acres in extent it is within the description
of a great pond. ... It was not created by the dam, but by the
natural formation of the land ; and the fact that it has been in-
creased by the dam does not change its character as a great pond
of more than twenty acres in extent."
Under G. L. (Ter. Ed.) c. 131, § 40, the Director of the Division
of Fisheries and Game is authorized to make reasonable regula-
tions relative to fishing in a great pond which has been stocked. I
am of the opinion that regulations so made apply to the entire area
of a great pond, even when the same has been increased, by flood-
ing, to a greater extent than that occupied by such pond in its
natural condition.
Very truly yours,
Paul A. Dever, Attorney General.
Governor and Council — Transfer of Departmental Control of
Land. ■
June 28, 1938.
His Excellency the Governor, and the Honorable Council.
Gentlemen : — I am in receipt from the Executive Secretary
of the following communication : —
"I am directed by His Excellency the Governor and the Council
to forward the attached communications from the Department of
Conservation, requesting the approval of the Governor and Coun-
cil of the transfer from the Department of the Adjutant General
to said Department of Conservation of the control of a certain por-
tion of the muster field at Framingham.
His Excellency and the Council request your opinion as to their
authority to approve the said request."
No authority is vested in you to approve transfers of the control
of land which is vested in one department of the Commonwealth
to that of another department except where such transfer is neces-
sary for the laying out or relocation of a highway, as provided in
G. L. (Ter. Ed.) c. 30, § 44A.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 • 91
Civil Service — Physical Records of Applicants for Positions.
June 28, 1938.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir : — You ask my opinion as to whether or not reports
of physical examinations of applicants for civil service positions
are part of the files of your department v^hich must be kept open
for public inspection, under G. L. (Ter. Ed.) c. 31, § 29. Said
section 29 reads as follows : —
"Records of the proceedings of the board and of the commis-
sioner, all recommendations of applicants and all applications and
examination papers, shall be kept on file. Said records and files
shall be open to public inspection under rules approved by the gov-
ernor and council. No applications, recommendations or examina-
tion papers need be preserved for a longer period than three years."
The above-quoted statute requires that "examination papers"
"shall be kept on file" and that such "files shall be open to public
inspection. . . ."
The words "examination papers" as here used by the Legislature
have their common meaning of papers written by applicants them-
selves in the course of a prescribed examination. The words as
so used do not include reports made to your Commission by others
concerning the physical condition of such applicants. Such reports
are, obviously, not any part of the "records of the proceedings of
the board and of the commissioner," nor are they "recommenda-
tions of applicants" nor "applications," the only other matters
which are required to be kept open to the inspection of the public.
Accordingly, since the "physical record" or "physical report"
made by some one else concerning the applicant does not fall within
any of the classes of things which are to be kept as records or
"on file," I am of the opinion that you are not required to have them
open to public inspection.
Very truly yours,
Paul A. Dever, Attorney General.
State Employees — Temporary Appointees — Military Duty.
July 13, 1938.
Hon. Patrick J. Moynihan, Chairman, Commission on Adminis-
tration and Finance.
Dear Sir : — You request my opinion upon the following ques-
tion: —
"Your opinion is respectfully requested as to whether or not
temporary employees of the departments of the Commonwealth
are entitled, under the provisions of G. L. (Ter. Ed.) c. 33, § 67,
to receive leave of absence during military or naval duty as de-
scribed therein without loss of their ordinary remuneration as an
employee or official of the Commonwealth.
92 P.D. 12.
In the case of employees permanently in the service of the Com-
monwealth, the application of the law is clear. However, in the
case of temporary employment, much of which is for a short dura-
tion, questions have arisen as to whether such employees are en-
titled to leave with pay under the provisions of this section."
G. L. (Ter. Ed.) c. 33, §67, as amended, in its pertinent parts
reads : —
"Any person in the service of the commonwealth . . . shall be
entitled during the time of his service in the organized militia
... or during his tour of duty, not exceeding lifteen days, as a
member of the organized reserve of the army of the United States
or of the United States naval reserve forces, to receive pay there-
for, without loss of his ordinary remuneration as an employee or
official of the commonvv^ealth, . . . and shall also be entitled to the
same leaves of absence or vacation with pay given to other like
employees or officials."
The phrase "any person in the service of the commonwealth,"
as used by the General Court in said section, by reason of the word-
ing of the section as a whole and its obvious purposes is broad
enough in its sweep to include all who are in the employ of the
Commonwealth, whether in the sense of being within the "classi-
fied public service" or not. It applies equally to those temporarily
employed and to those in permanent positions. The subject matter
of the section is not such, nor is the context in which the phrase
is employed such, as to narrow it so as to make it synonymous with
the phrases "public service" and "classified public service" as em-
ployed in G. L. (Ter. Ed.) c. 31, with reference to the purposes
of that particular chapter. See Allen v. Chief of Police of Cam-
bridge, 259 Mass. 286, 287.
I am accordingly of the opinion that "temporary employees of
the departments of the Commonwealth" are entitled to leave of
absence during the performance of military or naval duty described
in said G. L. (Ter. Ed.) c. 33, § 67, without loss of their ordinary
remuneration as employees or officials of the Commonwealth.
Very truly yours,
Paul A. Dever, Attorney General.
WachuseU Mountain State Reservation Commission Authority
— County Treasurer and Commissioners.
July 19, 1938.
Wachusett Mountain State Reservation Commission!.
Gentlemen : — You have asked me several questions relative
to your authority and as to that of the county commissioners and
county treasurer relative to funds of your Commission.
It is not necessary for me to set your questions forth seriatim.
They are answerable by reference to the provisions of St. 1899,
c. 378, and I answer them as follows : —
1. Your Commission has complete charge of the operation, ad-
ministration and protection of the Wachusett Mountain State Res-
ervation.
r.D. 12 93
2. The sums of money referred to in sections 5 and 6 of said
chapter 378 are subject as to payment solely to the order of your
Commission.
3. The county treasurer may not pay out for any other pur-
poses than those of your Commission the sums described in section
6 of said chapter 378.
4. The county commissioners may not lawfully prevent the pay-
ment of money upon your order for the purposes of your Commis-
sion, as long as the amount of the sums mentioned in my third
answer and held by the county treasurer, subject to your order,
are not exhausted by withdrawals upon your order.
Very truly yours,
Paul A. Dever, Attorney General.
State Prison — Time off for Good Behavior — Habitual Criminal.
July 22, 1938.
Hon. Arthur T. Lyman, Commissioner of Correction.
Dear Sir : — You have asked me if the provisions of St. 1938,
c. 264, concerning time off for good behavior on the part of certain
prisoners, are applicable to one serving a sentence of ten years in
the State Prison as an habitual criminal, under the terms of G. L.
(Ter. Ed.) c. 279, § 25.
I am of the opinion that such provisions of said chapter 264 do
apply to a prisoner serving such a sentence.
Very truly yours,
Paul A, Dever, Attorney General.
Em,ergency Public Works Commission — Authority to apply for
Federal Aid.
July 26, 1938.
Hon. Henry Lefavour, Chairfnan, Emergency Public Works
Commission.
Dear Sir : — You request an opinion as follows : —
"St. 1933, c. 365, creating this Commission, and St. 1935, c. 380,
in amendment thereof, both contain the following provision:
'Nothing contained in this act shall be construed to prevent the
commonwealth from engaging hereunder in any project for which
funds have already been appropriated in whole or in part, if such
project shall be approved as herein required.'
In connection with this provision the Commission requests your
opinion on the following issues of law:
1. If a State department submits to the Commission a project for
which the Legislature has made in the current year or theretofore
a specific appropriation, is the Commission empowered to apply
for a Federal grant to aid in the financing of said project, provided
the project is approved as required by St. 1933, c. 365, as amended?
94 P.D. 12.
2. If a Federal grant is made for such a project, can payments
therefor be made from the specific legislative appropriation item,
augmented by such sum as is made available from the Federal
grant?"
The authority vested by the Legislature in your Commission to
apply for Federal funds to aid in the financing of projects is to be
found in the grant of power to your Commission as set forth in
section 2 of St. 1935, c. 380, amending St. 1933, c. 365. This
authority is set forth in the words of said section 2 : —
"The commonwealth may engage in any public works project
included in any 'comprehensive program of public works' prepared
under section two hundred and two of Title II of the National In-
dustrial Recovery Act and in any public project falling within one
or more of the classes of projects for which an appropriation of
federal funds has been made available by section one of the joint
resolution of Congress known as the Emergency Relief Appropria-
tion Act of nineteen hundred and thirty-five, but only in case such
project is approved, as hereinafter provided, by the commission . . ."
The intent of the Legislature, as expressed in the foregoing lan-
guage, indicates a grant of authority to your Commission to
approve certain public works projects, and for the Commonwealth
to engage therein under the provisions of said section 2, irrespec-
tive of whether there is an appropriation specifically made and
designated for the work represented by a particular project, so
long as there is an appropriation, general in its terms yet appli-
cable to such a project.
A similar provision was embodied in the original statute, St. 1933,
c. 365, with relation to projects under the NIRA alone. Neither
act contains any language indicating that the power of your Com-
mission to apply for a Federal grant to aid in the financing of an
appropriate project or the payment of the Commonwealth's money
under a general appropriation applicable to such a project is
limited only to projects as to which the Legislature has specifically
and particularly authorized augmentation of its appropriation by
the receipt of Federal grants.
The specific phrase noted in your letter, to which you have
directed my attention and which is found in both acts, does not of
itself add anything to, or subtract anything from, the power vested,
by the quoted words of said section, in your Commission with rela-
tion to its actions done at any time subsequent to the enactment of
the statutes. This phrase appears to have been inserted by the
Legislature merely to make plain that the statutes were to be con-
strued retrospectively, to the intent that they might embrace proj-
ects previously established and previously covered by specific legis-
lative appropriation. To the extent of such retrospective applica-
tion the phrase enlarged the authority of your Commission, but
from its phraseology it is plain that it has no application to projects
or appropriations set up or made subsequent to the enactment of
the statutes. The phrase speaks only as of the time of the enact-
ment of the measures in which it is contained, with relation to ante-
cedent matters alone.
P.D. 12 95
Under the sweep of the powers conferred upon your Commission
by the other provisions of said section 2, to which I have referred,
it is not essential that the Legislature, in making a specific appro-
priation for a project coming within the terms of said section 2,
should make particular reference to the augmentation of the sum
appropriated by available Federal grants. All such appropria-
tions, unless the contrary is particularly set forth in connection
therewith by precise words of negation, come within the sweep
of the quoted provisions of said section 2, and, in appropriate
instances, when approved, may be augmented by sums available
from Federal grants.
Accordingly, I answer both your questions in the affirmative.
Very truly yours,
Paul A. Dever, Attorney General.
Retirement — Probation Officers — Age.
July 27, 1938.
Hon. Albert B. Carter, Commissioner of Probation.
Dear Sir : — Your Board has asked my opinion relative to G. L.
(Ter. Ed.) c. 32, § 75, as last amended by St. 1938, c. 323, § 1, upon
the following questions : —
"1. Does the above-mentioned law mandatorily require retire-
ment of probation officers, part-time as well as full-time, on attain-
ing age seventy?
2. Is retirement mandatory under the foregoing chapter, on the
effective date, of those probation officers, full-time as well as part-
time, now in service and already seventy years of age or more?
3. Does the last sentence of the first paragraph of section 1,
reading, 'Every probation officer shall be retired upon attaining
the age of seventy,' apply to all probation officers or only to those
officers who are entitled to pensions?
4. When does this law become effective?"
I answer your first three questions in the affirmative. The
employment by the Legislature of the word "every" in the phrase
"every probation officer," in the last sentence of the first para-
graph of section 75, as amended, in contradistinction to the words
"any such" as used in other portions of the amended section, and
to the word "such" as formerly employed in the same connection in
the said section as it stood prior to this last amendment, indicates
an intent on the part of the General Court to include all probation
officers whatever their particular mode or terms of employment
might be, with the exception of those specifically mentioned in the
last paragraph of said section, within the requirement of retire-
ment at the age of seventy.
I answer your fourth question to the effect that St. 1938, c. 323,
as it amends G.L. (Ter. Ed.) c. 32, § 75, is by its terms an act
which relates to the power of the courts, and as such is not subject
to a referendum to the voters, under Mass. Const. Amend XLVIII ;
96 P.D. 12.
and consequently it became effective thirty days after the day upon
which it became law, which latter day appears to have been May
17, 1938.
Very truly yours,
Paul A. Dever, Attorney General.
Primaries — Qualification of Candidates — Emergency Act.
Aug. 2, 1938.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir : — You request my opinion as to the effect of certain
statutes relating to qualification of candidates to be voted for in
the primary election.
The first question which you ask is whether St. 1938, cc. 272 and
299, amendatory of G.L. (Ter. Ed.) c. 53, § 48, are in force and
effect before August 3, 1938.
G.L. (Ter. Ed.) c. 53, § 48 as amended by St. 1932 c. 310, pro-
vided as follows :
"All nomination papers of candidates to be voted for at primaries
shall be filed with the state secretary on or before the fifth Tuesday
preceding the day of the primaries ; except in the case of primaries
before special elections, when nomination papers shall be filed on or
before the second Tuesday preceding the day of the primaries."
As the day of the primaries in the current year is September
20th nomination papers, under the foregoing statute, would have
had to be filed on or before August 16th.
By St. 1938 c. 272, approved on May 5, 1938, without an
emergency preamble — and therefore not effective, under the State
Constitution (Mass. Const. Amend. XLVIII, The Referendum, I),
until ninety days thereafter, to wit, August 3, 1938 — the foregoing
section was amended by adding thereto the following provision : —
"There shall not be printed on the ballot at a state primary the
name of any person as a candidate for nomination for any office
to be filled by all the voters of the commonwealth, unless a certifi-
cate from the registrars of voters of the city or town where such
person resides that he is enrolled as a member of the political party
whose nomination he seeks is filed with the state secretary on or
before the last day herein provided for filing nomination papers.
Said registrars shall issue such a certificate forthwith upon request
of any such candidate so enrolled or of his authorized representa-
tives."
In the absence of further legislative act, the requirements of the
foregoing section would not go into force and effect prior to
August 3, 1938.
But a question is raised by St. 1938, c. 373, approved June 1,
1938, with an emergency preamble, and therefore effective on that
date, further amending G.L. (Ter. Ed.) c. 53, § 48, in the following
terms : —
P.D. 12 97
"Section 3. Section forty-eight of said chapter fifty-three,
as most recently amended by chapter two hundred and seventy-
two of the acts of the 'current year, and as affected by said chapter
three hundred and eighty-four, is hereby further amended by strik-
ing out the first paragraph and inserting in place thereof the fol-
lowing: — All nomination papers of candidates to be voted for at
state primaries shall be filed with the state secretary on or before
the seventh Tuesday preceding the day of the primaries; except
in the case of primaries before special elections, when nomination
papers shall be filed on or before the second Tuesday preceding the
day of the primaries."
Under the foregoing statute the date on or before which nomina-
tion papers must be filed in the current year was advanced from
August 16th to August 2nd. The precise question is whether the
underscored provisions of the amendatory act, referring to the
amendment contained in chapter 272, have the effect of putting
that amendment also into force and effect on June 1st.
In my opinion they do not.
At the time of the enactment of chapter 272 the Legislature did
not consider it an emergency measure, and, under the referendum
provisions of the Constitution, its effective date was postponed for
ninety days, within which period referendum proceedings might be
initiated. There is no constitutional objection to the Legislature's
subsequently determining that an emergency does exist with
reference to the subject matter of such statute, and re-enacting
it as an emergency law, thus making it immediately effective, and
this is so even where, in the meantime, referendum proceedings
have been initiated. It was so held in Opinion of the Justices, 286
Mass. 611, 623.
But it is natural to suppose that if the Legislature had such an
intent it would give clear and unambigious expression to it, and not
leave the intent to be inferred from equivocal or doubtful language.
The statute in question, St. 1938, c. 373, contains three sections,
each of which amends a separate section of G.L. (Ter. Ed. c. 53.
Section 1 of the statute amends "section forty-two, as most re-
cently amended by section two of chapter twenty-four of the acts of
nineteen hundred and thirty-seven," by striking out said section
and substituting a new one.
Section 2 amends "section forty-four, as most recently amended
by chapter thirty-eight of the acts of nineteen hundred and thirty-
five," by striking it out and substituting a new section.
In neither of these sections is the most recent previous amend-
ment mentioned for the purpose of re-enacting it as an emergency
measure, for (1) in both instances the amendment has long since
gone into effect, and (2) the whole section as so amended is struck
out. In both instances, therefore, the most recent previous amend-
ment is mentioned only for convenience in complete identification
of the statute which is being amended. This is, in fact, the normal
and usual legislative procedure.
It is natural, therefore, to give no ulterior significance to the in-
clusion of the most recent amendment in the description of the
statute amended in section 3.
98 P.D. 12.
It is further to be observed that G.L. (Ter. Ed.) c. 53, § 48,
contains a single paragraph, to which the amendment by St. 1938,
c. 272, adds another. The first paragraph deals only with the date
of filing nomination papers ; the second only with the requirement
of a certificate of party enrolment. The two are not so closely re-
lated that an emergency with respect to the former necessarily con-
notes an emergency with respect to the latter.
This conclusion is in harmony wiith the principle of statutory
construction relative to amendments, that "as to those portions
of the original statute which the amendatory act simply retains,
it is not generally to be construed as a new enactment. It does not
repeal those provisions and then re-enact them in the same terms,
. . ." Black, Construction and Interpretation of Laws, § 133.
Under this principle the enactment of the amendment would not
have the effect of re-enacting the original statute and its prior
amendments.
It is my opinion, therefore, that the mere inclusion of the phrase
"as most recently amended by chapter two hundred and seventy-
two of the acts of the current year," in the description of the
statute to be amended, is to be given its usual significance as
mere description or identification of the act to be amended, and
that it fails to furnish evidence of clear legislative intent to draw
the former amendment within the emergency preamble so as to
result in its re-enactment as an emergency law.
In answer to your question in its specific terms, I advise you that
St. 1938, c. 373, was in force and effect before August 3, 1938,
but that chapter 272 was not.
The second question upon which you ask my opinion is whether
said chapter 272 prohibits the printing on the ballot for the State
primary of the name of a person as a candidate who established
his political enrolment less than thirty days prior to the time fixed
by law for filing nomination papers.
The question involves G.L. (Ter. Ed.) c. 53, § 38, which provides,
in part, as follows : —
"... a voter may establish, change or cancel his enrolment by
appearing in person before a member of the board of registrars
of voters and requesting in writing to have his enrolment estab-
lished with a party, changed to another party, or cancelled, and
such enrolment, change or cancellation shall take effect at the ex-
piration of thirty days thereafter. . ."
The foregoing section was amended by St. 1938, c. 299, approved
May 10, 1938, without an emergency preamble, and therefore not
effective until August 8, 1938, and has no bearing on the present
question.
I have already ruled that St. 1938, c. 272, did not become effective
until August 3, 1938. As the last date for filing nomination papers
was August 2, 1938, candidates were not bound by the require-
ments of chapter 272 in qualifying. While it is true that the bal-
lots will not be printed until after that date, it is not reasonable to
interpret the statute as excluding from the ballots the names of can-
didates who have fully qualified under the laws in force and effect
when their nomination papers were filed.
P.D. 12 gg
I therefore advise you that chapter 272 does not prohibit the
printing on the ballot for the State primary of the name of a per-
son as a candidate who established his political enrolment less than
thirty days prior to the time fixed by law for filing nomination
papers.
Very truly yours,
Paul A. Dever, Attorney General.
Department of Public Works — Federal Project — Authority.
Aug. 11, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir :_ You have called my attention to item 674g in the
supplementary appropriation act (St. 1938, c. 497), which reads
as lollows : — v-«v^o
"Item 674g. For the dredging of an anchorage basin and the
extension of a stone jetty in Witchmere harbor in the town of Har-
7a h^ fn^^'^-r* exceeding sixty-seven thousand dollars, the same
\l.%^ addition to any funds made available for the purpose by
the Federal government, 867,000." ^
You state that this work is to be carried out under a pending
ask for .^?nf now under preparation by your department, and
ask for an interpretation of the statutes governing jurisdictional
authority m the matter of approval of this project
I understand that the specific point upon which you wish an
opinion IS whether or not this particular project is one A^ichls
under the sole Jurisdiction of your department in conjunctfon with
the Federal Pubhc Works Administration or whether t is a proTect
So"'un7er'st' T9l?7%^^ ''^ Emergency Public Work^ 00^1^1-
c. 481 ^^ ^ recently amended by St. 1938,
DroDrX^^ifi'7''nn^^^ provision in the appropriation act which ap-
propriates $67,000 to your department "in addition to any funds
made available for the purpose by the Federal government" indi-
cates a legislative intent that this project shall be witWn the sole
F7ZlfTff -r^' department, acting in conjunction wfth the
Federal authority, without its being subject to aDoroval hv fV^P
Emergency Public Works Commissiol and I so advL"^ yo^^^ "^ '
Very truly yours,
Paul A. Dever, Attorney General.
Governor and Council — MaT/or — Special Justice of District Court
— Compatible Offices.
Aug. 26, 1938.
His Excellency the Governor, and the Honorable Council.
Gentlemen : — You request an opinion as to whether, in view
of the questions raised by Honorable Nathaniel N. Jones in hS
letter to you under date of August 15, 1938, it will be "awful fo?
100 P.D. 12.
the Council to proceed to confirm the appointment of James F.
Carens, Esquire, as Special Justice of the District Court at New-
buryport. It appears, from Judge Jones' communication, that Mr.
Carens also holds the office of mayor of Newburyport.
In my opinion, the fact that Mr. Carens is mayor does not make
it unlawful for the Council to confirm his appointment as special
justice. The provisions contained in the Constitution against plu-
rality of offices (Mass. Const., pt. 2d, c. VI, art. II) and incom-
patibility of offices (Mass. Const. Amend. VIII) have no reference
to city or town offices, Wood v. Electioyi Commissioners of Cam-
bridge, 269 Mass. 67, 70, and, in my opinion, there is no necessary
incompatibility between the offices, though doubtless Mr. Carens as
special justice would be disqualified from sitting upon cases in
which the city of which he is mayor is a party.
Very truly yours,
Paul A. Dever, Attorney General.
Sewerage — Acquisition of Land by a Municipality — Authority.
Aug. 26, 1938.
Dr. Alton S. Pope, Deputy Commissioner of Public Health.
Dear Sir : — You submit the following matter to us for an opin-
ion. The facts as stated in your letter are that the city of Spring-
field raises the question as to the necessity of a legislative act to
enable it to acquire land within the limits of the town of Agawam
for sewage treatment purposes. You ask my opinion (1) as to
whether your department can approve a plan for the construction
of sewage treatment works for the city of Springfield within the
limits of the town of Agawam, under the provisions of G. L. (Ter.
Ed.) c. Ill, § 17; (2) whether permissive legislation is necessary
to acquire the land for this purpose within the limits of the town
of Agawam; and (3) assuming the city of Springfield purchases
land within the town of Agawam, may your department give its
approval of a sewage treatment plant there located without legis-
lative authority.
G. L. (Ter. Ed.) c. 83, § 6, provides: —
"A town, with the approval of the department of public health,
after a public hearing by said department of all parties interested,
of which notice shall be given by publication in one or more news-
papers, may purchase land within its limits, or take the same by
eminent domain under chapter seventy-nine, for the treatment,
purification and disposal of sewage. Towns or persons owning
or operating filter beds or other works for the treatment, purifica-
tion and disposal of sewage shall provide and maintain works ade-
quate for the treatment of the sewage at all times, and shall operate
such works in such manner as will prevent a nuisance therefrom
or the discharge or escape of unpurified or imperfectly purified
sewage or effluent into any stream, pond or other water, or other
objectionable result."
P.D. 12
101
G. L. (Ter. Ed.) c. Ill § 17, as amended by St. 1937 c 340
requires: — ^ j^'Joi, c. ctu,
, "Towns and persons shall submit to said department for its ad
vice and approval their proposed system ... of the disposal of
approval.' ""^ ""' '"'"^ '^'''"^ ^^"" ^' established Sout such
In my opinion, the provision of law first above quoted authorizes
friz/? ^"''^^'' ^',^^^" ^^"^ by eminent domain, for sewage
treatment purposes, only "within its limits." There would be no
purpose m introducing the words "within its limits'' iZ the stat
ute if It were not intended to delimit the town's Lthority to the"
purchase or taking of land within its limits ^"^^o"ty to the
baid section 17 has no controlling effect over the other provision
That section relates to the approval of a system of sewfge treat'
ment and not to the acquisition of land for sewage treaTment put
I find that in numerous instances other cities and towns whirh
have purchased or otherwise acquired property outsidrthecitv
or town limits have obtained special enabling legislat on -The fact
that the Legislature passed these enabling acts is pfetty clear indi
rarirmit^Pd ^'^i'^"'"^^?-^^ "^^ undistand tS the General
Laws permitted such acquisition in the absence of special legisla-
MJZrZ^utw'phmt""' "^"^^ J'' }^^^' ^" ^ communication to
lolnabk'ttl dty rf^'s.^rWfl P-^T'^^i™. legislation is necessary
Yours very truly,
Paul A. Dever, Attorney General.
Salisbury Beach Reservation - Improvement - Appropriation.
Sept. 6, 1938.
Hon. Ernest J. Dean, Commissioner of Conservation.
Dear Sir: — I am in receipt from you of the following letter: —
"In the general legislative budget for IQ'^S Hc^rr, 9qq +i,
made available to this department tiie sum of ?2?000 for the '^
102 P.D. 12.
One project for improving the reservation, that needs considera-
tion in the near future, is better accessibility over a proposed new
road across the marshes.
Portions of the land needed for the road are in private owner-
ship, and I should like an opinion from you as to whether a part
of the appropriation can be used in acquiring the land, under G. L.
(Ter. Ed.) c. 132A, needed to make the contemplated improvement
possible."
The language of the appropriation to which you refer, St. 1938,
c. 356, item 288, is as follows : —
"For expenses for improvement of Salisbury beach, either in the
form of Works Progress Administration projects or with the co-
operation of the Civilian Conservation Corps, a sum not exceeding
twenty-five thousand dollars, the same to be in addition to any
amount heretofore appropriated for the purpose . . . $25,000.00."
There is another item, general in character, in the said chapter,
namely, item 287, which provides : —
"For the maintenance of Salisbury beach reservation, a sum not
exceeding nineteen thousand five hundred dollars . . . $19,500.00."
Item 288, however, is specific in its nature, and is limited to the
"improvement of Salisbury beach." It includes no language ex-
pressive of an intent to confer upon your Commission, in connec-
tion with the "improvement" of the "beach," the power to acquire
iand at a distance therefrom for the purpose of constructing an
•approach of some length to the "beach." Such an intent is not
reasonably to be gathered from the language of the appropriation,
which is limited to a reference to the "beach" and is not in terms
applicable to the "reservation" as such, nor to "parks" and "res-
ervations" generally, which are dealt with in G. L. (Ter. Ed.)
c. 132A. The appropriation so specifically made with reference to
a particular place cannot be treated as available for use in con-
nection with the general powers of acquisition given to you by
section 3 of said chapter 132A.
I therefore answer the question implicit in your third paragraph
in the negative.
Very truly yours,
Paul A. Dever, Attorney General.
Undertaker — Removal of a Dead Body — Permit — Hospital.
Sept. 7, 1938.
Dr. Clifton T. Perkins, Acting Commissioner of Mental Diseases.
Dear Sir : — Replying to a recent letter from you relative to the
removal of a dead body from the Grafton State Hospital, let me
say that a burial or removal permit need not be obtained by an
undertaker for removing a body from a hospital, house or other
similar place.
P.D. 12 103
G. L. (Ter. Ed.) c. 114, § 45, provides that no undertaker shall
remove a body from a town until he has received a permit. Under
certain conditions, where a permit cannot be obtained and a death
certificate has been issued, the undertaker may remove the body
from the town before getting such a permit, provided he returns
it into the town within thirty-six hours. This latter matter, how-
ever, is no concern of yours.
The undertaker may remove the body from the Grafton State
Hospital, and what he does with it thereafter is his peculiar re-
sponsibility. A careful examination of said section 45 should
resolve any doubts which the town clerk, to whom you refer, has
regarding this matter.
Very truly yours,
Paul A. Dever, Attorney General.
Department of Conservation — State Forest — Toivn Ways —
Discontinicance.
Sept. 7, 1938.
Hon. Ernest J. Dean, Comniissio7ier of Conservation.
Dear Sir: — ^ In a recent communication you have asked me the
following questions : —
"1. Would this department have the right to close or abandon
a so-called town road lying wholly within a State forest?
2. If the answer to question 1 is in the negative, what steps
would be necessary for the department to acquire control over such
a road?
3. If such a road came within the jurisdiction of the depart-
ment, would it then have the right to close it to traffic or to impose
regulations, such as prohibiting parking along the roadway?
4. Are roads which have been constructed by the department
within a State forest, and over which a town has never exercised
any jurisdiction, wholly within the jurisdiction of the department;
and m.ay they be lawfully opened and closed by the department
notwithstanding the fact that at certain times of the year they
may be available for public use?"
Assuming that your questions relate to duly laid out and estab-
lished town ways, I answer your first question in the negative.
I answer your second question to the effect that if a discontinu-
ance of a town way were occasioned by acts of town and county
officers, in accordance with G. L. (Ter. Ed.) c. 82, § 30 or § 32A,
as much of the same as actually lay within the midst of a State
forest, upon land acquired by you for the same, would be under
your control.
The statutes appear to be silent concerning roads constructed
by your department in State forests, although reference is made
to your authority to construct State trails or paths.
Very truly yours,
Paul A. Dever, Attorney General.
104 P.D. 12.
Federal Works Projects — Power of Commissioners to apply for
Federal Funds.
Sept. 7, 1938.
Emergency Public Works Commission.
Gentlemen : — You have asked me the following questions : —
"1. Is the Department of Public Works or the Metropolitan
District Commission exclusively authorized, under St. 1938, c. 494,
§ 4, to enter into agreements with appropriate agencies of the Fed-
eral government for the purpose of obtaining Federal funds to aid
in financing the work authorized under said chapter 494?
2. Is the Emergency Public Works Commission empowered,
under the provisions of St. 1933, c. 365, as amended, particularly
as amended by St. 1938, c. 481, to make application to enter into
agreements with the appropriate Federal authorities for the pur-
pose of obtaining grants to aid in the financing of work author-
ized under St. 1938, c. 494, provided the projects have been sub-
mitted to and approved by this Commission and the Governor, in
accordance with the provisions of St. 1933, c. 365, as amended?"
I answer your first question in the negative, and your second
question in the affirmative.
St. 1938, c. 494, to which you refer, makes appropriations to
carry out a public works program for the purpose of alleviating
existing conditions resulting from unemployment, and is an emer-
gency measure. With the plain intent of facilitating the institu-
tion of such program, the Legislature, in section 4 thereof, author-
ized the Department of Public Works and the Metropolitan Dis-
trict Commission to negotiate and to make agreements with agen-
cies of the Federal government, if deemed advisable by either of
them, relative to work to be undertaken for which Federal grants
might be expected.
Section 4 of said chapter 494 reads : —
"The department of public works or the metropolian district
commission, as the case may be, shall have full authority to carry
out negotiations, and enter into agreements relative to work au-
thorized to be carried out by it hereunder, with the appropriate
agencies of the federal government if deemed advisable by it. The
commonwealth may accept and use for the purposes of this act
any grant of federal funds, and such grants shall be in addition
to the amounts appropriated by this act."
You have advised me that the Metropolitan District Commission
has submitted to you for approval a work project for construction
at the junction of Memorial Drive and Brookline Street at Cottage
Farm Bridge, with the understanding that your Commission would
make application to the Department of Public Works for a grant
to aid in financing the same. In view of the existing statutes vest-
ing authority in your Commission to apply for Federal grants to
aid in the financing of projects (St. 1935, c. 380, amending St.
1933, c. 365), the language of section 4 of St. 1938, c. 494, must
be read so as to make the legislation with relation to their common
subject matter a harmonious whole. It is therefore apparent that
the authority given to the Department of Public Works and the
P.D. 12 105
Metropolitan District Commission by said section 4 of St. 1938,
c. 494, is not exclusive of the power previously vested in your Com-
mission but merely places a similar power in the two indicated
bodies, to be exercised by them without reference to your Com-
mission, if they deem it advisable, while leaving untouched the
power already vested in you, of which such bodies may take advan-
tage and by which they can carry out their contemplated plans
through the exercise by you of your general authority to approve
projects and to apply for Federal grants to aid the same, under
St. 1935, c. 380, more particularly described in section 2 thereof.
See opinion of the Attorney General to your Commission on July
26, 1938 {a7ite, p. 93).
Very truly yours,
Paul A. Dever, Attorney General.
Municipal Notes — Power of State Director of Accounts to
approve — Amending Statute.
Sept. 12, 1938.
Hon. Henry F. Long, Commissioner of Corporations and Taxation.
Dear Sir : — You have asked my opinion, in effect, as to whether
the Director of Accounts is empowered to approve notes of the
town of Mansfield issued under a vote passed at a special town
meeting on July 25, 1938. I am advised by the Director of Ac-
counts that prior to the passage of such vote, which was itself
properly passed, the town had duly accepted the provisions of St.
1929 c. 348, as amended by St. 1935, c. 255, within the period pro-
vided for acceptance of the same by the said amending act.
The vote of July 25, 1938, as you have set it forth, reads : —
"Voted, for the purpose of construction of a sanitary sewer sys-
tem and sewage treatment plant including land for site and right
of way and to enable the town to secure the benefits of funds
granted by the Federal Government under the Public Works Ad-
ministration Appropriation Act of 1938, there be raised and appro-
priated the sum of $435,000 and the treasurer, with the approval
of the Selectmen, be and hereby is authorized to borrow the sum
of 8250,000 and to issue bonds or notes of the town therefor, under
authority of and in accordance with the provisions of chapter 255
of the Acts of 1935 and of chapter 50 of the Acts of 1938, said
bonds or notes to be payable in not more than thirty years at such
term and maximum rate of interest as may be fixed by the Emer-
gency Finance Board."
You inform me that the notes to be issued are entitled "Mansfield
Sewerage Loan Act of 1929."
The Director advises me that the issue of notes as voted corre-
sponds to the provisions of St. 1929, c. 348, and to those of St.
1938, c. 50.
The doubt as to whether the Director may properly certify this
issue of notes under G. L. (Ter. Ed.) c. 44, §§ 23-27, inclusive,
appears to arise because the quoted vote of the town is phrased :
106 PD. 12.
"to issue bonds or notes of the town therefor, under authority of
and in accordance with the provisions of chapter 255 of the Acts
of 1935," without specific reference to St. 1929 c. 348.
St. 1929 c. 348, which was drawn with the intent of authorizing
the issue of notes for the purpose indicated in the quoted vote, was
entitled "An Act to authorize the Town of Mansfield to construct
and maintain a system of sewerage and sewage disposal," and
granted full powers for such purpose. It was not, however, by
its terms to become fully effective unless accepted by the voters
of the town within five years of its passage. Section 13 of said
chapter 348, with relation to such acceptance, reads : —
"For the purpose only of submission to the voters of said town,
this act shall take effect upon its passage, and it shall take full
effect upon its acceptance by vote of the majority of the voters
of said town voting thereon at a town meeting called for the pur-
pose within five years after its passage. No expenditure shall be
made and no liability incurred hereunder until such acceptance."
It was not so accepted within the indicated five years.
In 1935 the Legislature enacted an amendment to said St. 1929,
c. 348, which, from its title and whole phraseology, was intended
to give new life to said chapter 348 and to enable it to become fully
eft'ective if accepted by the voters within te7i years from 1929.
This was done by the simple expedient of amending the quoted
section 13 of said chapter 348 by striking out the word "five" and
inserting the word "ten" before the word "years," and the amend-
ing act was given a significant title. In its entirety it reads : —
"An act reviving and continuing authority for the Town of
Mansfield to construct and maintain a system of sewerage and
sewage disposal.
Section 1. Section thirteen of chapter three hundred and forty-
eight of the acts of nineteen hundred and twenty-nine is hereby
amended by striking out, in the fifth line, the word 'five' and in-
serting in place thereof the word : — ten, — so as to read as fol-
lows: — Section 13. For the purpose only of submission to the
voters of said town, this act shall take effect upon its passage, and
it shall take full effect upon its acceptance by vote of the majority
of the voters of said town voting thereon at a town meeting called
for the purpose within ten years after its passage. No expendi-
ture shall be made and no liability incurred hereunder until such
acceptance.
Section 2. This act shall take effect upon its passage.
Approved May 13, 1935."
The purpose and scope of this amending act are indicated by its
title as well as by its provisions, and by these it plainly draws
within its own effective force the terms and provisions of the ear-
lier statute of 1929, which it amends, so that a reference to the
authority and the provisions of the amending act as clearly ex-
presses the intent of the voters, as to the source of the authority
under which they were acting in making an appropriation and an
issue of notes, as if they had set forth in actual words and figures
St. 1929, c. 348.
P.D. 12 107
In Wheelwright v. Tax Commissioner, 235 Mass. 584, 586, it was
said : —
"The title of a statute is in a legal sense a part of every statute
and may be considered in determining its construction."
Therefore, since the authority to issue the notes was actually
in existence through the revival of the act of 1929 and its accept-
ance by the voters, and no real misstatement of the source of the
authority under which they were acting was set forth by the voters
in the text of the vote which they passed, in my opinion the title
given to the notes, namely, "Mansfield Sewerage Loan Act of 1929,"
is not improper ; nor would the Director of Accounts be warranted,
solely by reason of the considerations which I have discussed
herein, in declining to denominate and certify the same.
Very truly yours,
Paul A. Dever, Atto7^ney General.
Highways — Authority of Department of Public Works as to
Approval of "Flares."
Sept. 12, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — You have asked my opinion as to whether your
department is required to approve "flares" to be used on highways
by commercial vehicle owners, under the provisions of section 14B
of G. L. (Ter. Ed.) c. 85, as inserted in said chapter 85 by St. 1938,
c. 432, and to test such "flares" to determine whether they "meet
the specifications recommended by the Interstate Commerce Com-
mission," as set forth in said section 14B.
No provision of said section 14B or of any other statute requires
or directs you to make said tests or to give such an approval.
Whether or not "flares," in any given instance, meet the require-
ments of the said section 14B, which is a penal statute, may be a
question for judicial determination, or a question for the deter-
mination of the Registrar of Motor Vehicles acting in a quasi-
judicial capacity.
In preparation for a possible prosecution or for the purpose of
making a determination in your own mind as to whether or not
various "flares" do in fact appear, or do not appear, to meet the
requirements of the statute, or for informing your subordinates
as to the characteristics of various "flares," toward the accom-
plishment of the same ends, you may have tests mades of "flares,"
and may in like manner and for a like purpose approve them.
Very truly yours,
Paul A. Dever, Attorney General.
108 P.D. 12.
Department of Public Works — Authority to maintain Sidewalks.
Sept. 12, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir: — You ask my opinion, in effect, as to the duty of
your department to maintain sidewalks of three different types,
mentioned in your request.
Prior to 1931 your department had no authority to construct
sidewalks in connection with State highways. Sidewalks were
only to be constructed and maintained by municipalities, under
G. L. c. 83, §§ 25 and 26, when, in the judgment of their officials,
public convenience required. Sidewalks may still be constructed
and maintained in this latter manner along State highways. In
addition, however, to authority for the construction and mainte-
nance of this last-described type of sidewalk, St. 1931, c. 439, by
its amendment of G. L. c. 81, § 20, empowered your department
to "construct sidewalks along such parts of the state highways as
it determines public convenience and necessity require." Although
this section does not specifically grant the power to maintain such
sidewalks, and although section 18 of chapter 81, which exempts
the State from liability for defects in sidewalks, has been allov/ed
by the Legislature to remain in effect, and although the power to
maintain cannot reasonably be said to be implied from the use of
the word "construct" alone, nevertheless, section 13 of said chapter
81 provides that "state highways shall be maintained and kept in
good repair and condition by the department at the expense of the
commonwealth," and it is properly to be inferred, from reading
the applicable sections of the said chapter together, that where a
sidewalk is on land taken for State highway purposes and is con-
structed by your department the duty of maintaining it rests upon
the department. Such a duty certainly does not rest upon a munic-
ipality as to such a sidewalk, which it has not itself constructed
and as to which there is no legislative mandate directed to it.
I therefore answer your query to the effect that it is the duty
of your department to maintain sidewalks which it has constructed
under said section 20 of chapter 81 when the same are on land
taken or acquired for a State highway.
This would place the duty of maintenance, as regards the three
different types of sidewalks in the town of Brookline which you
mention, upon your department in the first instance but not upon
it in the other two.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 109
Civil Service — City Ordinance — Secretary.
Sept. 13, 1938.
Hon. Thomas H. Green, Commissioner of Civil Service.
Dear Sir: — You have requested my opinion as follows: —
"Will you kindly give me your opinion as to whether or not the
position of clerk in the law department of the city of Woburn is
classified under civil service.
The city ordinance of Woburn concerning this position reads as
follows :
The Mayor may annually in the month of January appoint a
secretary who shall also act as secretary to the City Solicitor.' "
The ordinance to which you have called my attention purports to
create the position of secretary to the city solicitor, and to require
that it be filled by a designated employee, namely, the mayor's
secretary. If it be thought that the ordinance does not reach to
this extent, it at least provides that a designated official shall per-
form duties or render service similar to that of a secretary to the
city solicitor, within the meaning of Civil Service Rule 4, § 1. The
position of secretary to the mayor is specifically exempted from the
Civil Service Law by G. L. (Ter. Ed.) c. 31, § 5; but the posi-
tion of a secretary (or of a clerk) to a city solicitor, or, as I have
pointed out, of a person performing duties similar to such secre-
tary (or clerk), is classified by the Civil Service Rules and falls
within Rule 4, class 2 or class 3, grades 3 and 4, according to the
precise nature of the duties performed.
The Civil Service Law and Rules provide that appointments to
such classified positions, or of persons performing services similar
to those of such classified positions, shall be made in accordance
with such rules. The rules further provide a mode for the appoint-
ment to such positions or of such persons, different from that set
forth in the ordinance in question, namely, by appointment after
requisition upon and certification from the Commissioner of Civil
Service (Civil Service Rules 13-22, inclusive).
In Attorney General v. Trehy, 178 Mass. 186, 188, it was said : —
"The classification of offices and employments to be filled, and
the rules made by the commissioners with the approval of the gov-
ernor and council, have the force of laws and are binding upon
appointing officers."
It follows that the ordinance in question is invalid, being in
direct contradistinction to the said rules and classifications, which
are of binding force. Logan v. Mayor and Aldermen of Lawrence,
201 Mass. 506, 509. Opinion of the Justices, 145 Mass. 587, 590.
Ransom- v. Boston, 192 Mass. 299, 304.
It may be, although the matter is not now before me and I do
not pass upon it, that, under the implied authority vested in the
executive officers of the indicated city by special or general laws,
the designated secretarial employees may be appointed without the
aid of an ordinance. In any event, the person appointed as secre-
no P.D. 12.
tary (or clerk) to the city solicitor will be entitled to the protection
of the Civil Service Law and Rules, though the person to be se-
lected as secretary to the mayor will not be.
Very truly yours,
Paul A. Dever, Attorney General.
Muncipal Expenditures — Highway Projects — Appropriation.
Sept. 15, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — I am in receipt from you of the following letter :
"I desire to receive your opinion on St. 1938, c. 500, in connection
with the following items:
Can the cities and towns legally expend money under the provi-
sions of this act for, —
1. The purchase of road building equipment, such as shovels,
trucks, graders, bulldozers, etc. ?
2. The erection and maintenance of traffic lights and signs?
3. The removal of snow and sanding of roads and the purchase
of snow removal equipment?"
The purposes for which the sums allocated to the several
municipalities, under St. 1938, c. 500, may be spent are set forth
therein, in section 1, as "local highway projects, including con-
struction, maintenance and repair of local roads, streets and high-
ways other than state highways, surface drainage, sidewalks, curb-
ings and bridges." In section 2 it is provided that "projects to be
entered into" shall be submitted to your department for its approval
"with respect to the necessity and location thereof."
The use of the word "projects" as descriptive of the nature of the
specific forms of work authorized to be undertaken is significant
of the intent of the legislative makers of the act. So also is the re-
quirement for approval of the necessity of any suggested project.
So also is the title of the act, which may be looked to in ascertaining
the intent of the Legislature. Wheelivright v. Tax Commissioyier,
235 Mass. 584, 586. This title states that the purpose of the pay-
ment to the municipalities is that they may carry out "local high-
way projects for the purpose of alleviating existing conditions re-
sulting from unemployment."
All these considerations taken into account with the phraseology
of said chapter 500 indicate that it was the intent of the General
Court, as expressed in said chapter 500, to authorize the expendi-
ture of the moneys provided for only on highway construction and
maintenance schemes and others specifically mentioned in the
chapter and related thereto, which would not ordinarily be in-
cluded in the regular work to be performed by the municipalities in
the course of their usual duties, and which would give speedy em-
ployment to as many workers as possible on them. In this respect
the said chapter 500 is intended to be strictly construed so as to ef-
P.D. 12 111
feet the real purpose of the chapter, which is fairly outlined in the
above-quoted portion of the title.
Accordingly, I am of the opinion that none of the three purposes,
as you have stated them in the above-quoted portion of your letter,
are among those for which municipalities may lawfully expend the
moneys apportioned or allocated to them under the provisions of
said chapter 500.
Very truly yours,
Paul A. Dever, Attorney General.
Department of Mental Diseases — Contracts — Amending Statute.
Sept. 15, 1938.
Dr. Clifton T. Perkins, Acting Commissioner of Mental Diseases.
Dear Sir : — You have written me relative to the effect of St.
1938, c. 486, upon contracts which you may now make under G. L.
(Ter. Ed.) c. 123, § 16, as it now stands.
St. 1938, c. 486, amends G. L. (Ter. Ed.) cc. 19 and 123, by
changing the name of your department and making various other
changes relative to its make-up and the powers of various officials
which function in it. Said chapter 486 has not been declared to
be an emergency measure, and does not take effect until October 5,
1938.
Section 16 of said chapter 123, as it now stands before such
amending act becomes effective, empowers the Department of Men-
tal Diseases to board out certain patients at a designated maximum
price. The general appropriation bill, passed prior to the enact-
ment of said amending chapter 486, made an appropriation to the
Department of Mental Diseases, from which such price for patients
boarded out might be paid during the present fiscal year, in item
481 of House Bill No. 1800, as follows: —
"For the cost of boarding certain feeble-minded persons in pri-
vate homes, a sum not exceeding five thousand dollars."
At the present time, before the effective date of the said amend-
ing act, the Department of Mental Diseases has the authority to
make agreements with persons for the board of feeble-minded
patients, within the limit of $4.50 a week, for the present fiscal
year, and the said appropriation is now available to pay for such
board under the terms of such contracts ; and being so now avail-
able it will continue to be available during the life of such con-
tracts. This is true notwithstanding the fact that said chapter
486, among other changes in the existing law, specifically amends
said section 16 so that "the superintendent of each state hospital"
is substituted for the "department" as the authority directly em-
powered to place patients at board. But their power is limited
to placing patients in their respective hospitals at board, and the
cost of the board is limited as in the earlier statute.
After the said amending act becomes effective, new contracts
for board of patients for the present fiscal year must be made by
the said superintendents and not by the then standing Department
112 P.D. 12.
of Mental Health, the successor of the present Department of Men-
tal Diseases.
It was not the intent of the Legislature in enacting said amend-
ing act that appropriations made in the current year for the De-
partment of Mental Diseases should lapse upon the effective date
of the amending act; otherwise provisions for new appropriations
for the newly designated department would have been made. That
such was not the intent of the Legislature is shown by its inclusion
in section 22 of the amending act of the following sentence : —
"After the effective date of this act the department of mental
diseases as theretofore constituted shall continue under its new
name except as otherwise provided in this act."
The appropriation made to the department by said item 481, for
the purpose of paying the board of patients, remains in effect and
may be used for the designated purpose, irrespective of whether
the department itself or some official in the department is empow-
ered to make the contractual and other arrangements for such
boarding out at any particular time, and the prices of board agreed
to by either of such authorities to be paid during the present fiscal
year, when respectively empowered to act, may be paid for by the
appropriation made for the purpose by said item 481.
Very truly yours,
Paul A. Dever, Attorney General.
Department of Public Works — Sale of Land.
Sept. 19, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — In reply to your recent letter relative to a proposed
sale of 1,267 square feet of land acquired by your department in
connection with takings made to carry out the purposes of St. 1930,
c. 420, let me say that your department has no authority to sell
the same. No legislative provision authorizes such a sale by your
department, even if the same be still under your control and not
already transferred to the Metropolitan District Commission under
the provisions of said chapter.
I therefore answer the first question in your letter in the nega-
tive.
As to who, if anyone else, has authority to make such a sale, a
categorical answer cannot be given merely upon the facts which
you have disclosed to me in your letter and accompanying papers.
If the Metropolitan District Commission does not desire to give
a deed thereto, or the person contemplating buying does not feel
that a deed from that body would be sufficient to give him a title,
and it is still desired to make a sale, enabling legislation author-
izing some particular authority to sell on behalf of the Common-
wealth should be sought from the next General Court.
Very truly yours,
Paul A. Dever, Attoryiey General.
P.D. 12 113
Old Age Assistance — Creditors — Estate — Powers of
Lo'cal Bureau.
Sept. 21, 1938.
Hon. Walter V. McCarthy, Commissioner of Public Welfare.
Dear Sir : — In a recent communication you have set forth vari-
ous statements of fact concerning situations as to which you are
required to perform certain duties in connection with the Old Age
Assistance Law, and have asked my opinion upon questions of
law in relation thereto.
1. Upon the facts set forth in the first statement of facts in
your letter I answer your question to the effect that it would not
be legal under the Old Age Assistance Law for a local bureau of
old age assistance to grant an allowance for indebtedness incurred
by the applicant prior to the date application for old age assistance
was made.
G. L. (Ter Ed.) c. 118 A, the Old Age Assistance Law, specifically
provides in section 1 that —
"Financial assistance granted hereunder shall be given from the
date of application therefor, . . ."
The whole intent of the act is that "adequate assistance" shall
be given to deserving citizens in need of relief, in order to enable
them to sustain life outside of almshouses, and not to provide mon-
eys for the benefit of their creditors having old claims.
2. Having in mind the intent of the act as outlined above, and
the provisions in its first section for the payment of assistance
directly to an aged person, by check or cash, at his residence if
he so desires, it is plain that the act does not provide, by impli-
cation, for the payment of money subsequent to an application, but
after the death of an aged person, to any other person, either a
representative of his estate or any one else. The act does not spe-
cifically provide for such a payment after death. The obligation
to pay is owed solely to the applicant, and arises only when a single
purpose is capable of fulfillment, i.e., that of relief of the aged
person himself. When that purpose can no longer be fulfilled, be-
cause the applicant is no longer living, the obligation ceases to
exist.
3. A local bureau of old age assistance, as such, has no author-
ity to require of a national bank information as to the amount
deposited by a person receiving old age assistance. No such au-
thority is granted by any statute, expressly or impliedly. A mem-
ber of the board of public welfare has such authority under G. L.
(Ter. Ed.) c. 117, § 13. A person receiving old age assistance is
to be considered as a "charge upon a town," within the meaning
of this section, as he may be considered a person for whom a town
has incurred expenses, within the meaning of section 5 of said
chapter 117. See opinion of the Attorney General sent you on
March 18, 1939 (not published).
Very truly yours,
Paul A. Dever, Attorney General.
114 P.D. 12.
Hospitals — Service Plan — Foreign Institution.
Sept. 21, 1938.
Hon. Walter V. McCarthy, Commissioner of Public Welfare.
Dear Sir : — Replying to your recent letter relative to G. L.
(Ter. Ed.) c. 176 A, I am of the opinion that you have no authority
to designate hospitals established outside the Commonwealth as
ones which may fall within the scope of section 1 of said chapter
176A, with relation to a nonprofit hospital service plan. Under
familiar rules of statutory construction, acts of the Legislature,
in the absence of specific language indicating the contrary, are not
to be taken as embracing forms of subject matter outside the juris-
diction of the Commonwealth.
Very truly yours,
Paul A. Dever, Attorney General.
Massachusetts Unemployment Compensation Commission — State
Treasurer — Requisition for Federal Funds.
Sept. 21, 1938.
t
Hon. Emil E. Fuchs, Chairman, Unemployment Compensation
Commission.
Dear Sir : — You have asked my opinion, in effect, as to whether
the State Treasurer has authority to requisition funds from the
State Unemployment Compensation Fund, transmitted to the Sec-
retary of the Treasury of the United States, without first obtaining
authorization so to do by a resolution of the Unemployment Com-
pensation Commission.
It is provided by the Unemployment Compensation Act, G. L.
(Ter. Ed.) c. 151A, §§ 37-40, inclusive, as amended by St. 1937,
c. 421, that the trust fund from which benefits are to be paid and
which is deposited with the Federal Unemployment Trust Fund
shall be administered by your Commission. The State Treasurer
is created the treasurer and custodian of said State Unemployment
Compensation Fund and is required to deposit it, with the said
Federal fund, "under the supervision and control of the commis-
sion."
With relation to the deposit and withdrawal of the State trust
fund from the Federal fund, while the latter exists in its present
form the Treasurer acts as an agency of the Commonwealth. The
statute, in section 40, describes him in this respect "as the state
agency which is custodian of the fund." The State Treasurer's
authority to requisition from the Federal fund moneys to be paid
out of the State Unemployment Compensation Fund deposited with
the Federal agency, which moneys when so requisitioned are "to
pay unemployment benefits," is not unlimited. It is specifically
limited by said section 40 to the requisition of "such sums ... as
may be required by the commission to pay unemployment benefits."
It is plain that the Commission, which alone has the duty to
administer the Unemployment Compensation Fund of the State —
F.D. 12 115
said fund to be "used solely to pay benefits . . . upon vouchers drawn
thereon by the commission" — and which alone oversees the pay-
ments of contributions and benefits, and not the State Treasurer,
is the only authority which can correctly know at any given time
how much money is needed for the immediate payment of benefits,
and so how much should be drawn from the Federal fund. To
entrust the duty of determining how large or how small a sum
should be so drawn for such purpose to any one other than the
Commission would scarcely fail to result in the withdrawal of more
money than was necessary at one time or less than was necessary
at another. It is clear that the Legislature intended to avoid such
situations, for it expressly refers in said section 40 to the requi-
sitions made upon the Federal fund by the State Treasurer as
"such sums ... as may be required by the commission to pay un-
employment benefits."
It follows from the foregoing considerations that the State
Treasurer may not draw requisitions upon the Federal funds for
the payment of benefits upon his sole motion, but is authorized to
do so only as he is advised by your Commission, in some proper and
official manner, as to what sum the Commission requires at any
particular time, and only in the amount which the Commission so
informs him that it presently requires.
Very truly yours,
Paul A. Dever, Attorney General.
Departmental Liabilities in Excess of Appropriations —
St. 1938, c. 356 — Approval.
Sept. 24, 1938.
His Excellency the Governor, and the Honorable Council.
Gentlemen : — You have asked my opinion, in effect, as to
whether, under the provisions of St. 1938, c. 356, § 3, an emergency
having been declared by the Governor and Council, liabilities in
excess of appropriations may be- incurred by any department or
institution. I answer your question in the affirmative.
Chapter 356 is the general appropriation bill, and, in said sec-
tion 3, provides :
"No liabilities in excess of appropriations provided for under
this act shall be incurred by any department or institution, except
in cases of emergency, and then only upon the prior written ap-
proval of the governor and council."
The Legislature has power to make such a provision under the
terms of Mass. Const. Amend. XLVIL If the prior written ap-
proval of the Governor and Council is given, departments which
have received appropriations under this chapter may then incur
liabilities in excess of the appropriations which have been pro-
vided under said chapter.
Very truly yours,
Paul A. Dever, Attorney General.
116 P.D. 12.
Municipal Approval of Projects under St. 1938, c. 500.
Oct. 13, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — You have advised me that, acting- under the pro-
visions of St. 1938, c. 500, your department has approved the
necessity and location of certain work projects, for storm damage
repairs on highways, submitted to you by the mayor and city coun-
cil of Maiden.
You also inform me that another application for your approval,
dated September 22nd, purporting to be made under said chapter
500, with relation to several work projects, has been presented by
the "mayor and the street and water commission" of Maiden, but
that this application lacks the approval of the city council of Mai-
den. You ask my opinion "as to whether the application dated
September 22nd . . . conforms to the requirements of said chap-
ter 500."
I answer your query to the effect that said application dated
September 22nd, by the mayor and the street and water commis-
sion without the approval of the city council, does not conform
to the requirements of said chapter 500.
Section 2 of said chapter 500 provides : —
"Projects to be entered into under authority of this act shall be
submitted to the state department of public works by the mayor
and city council in the case of cities . . ."
The intent of the Legislature in enacting the above-quoted por-
tion of chapter 500 is clear. A joint approval by a mayor and a
city council, resulting in a submission by them of any work project
to your department, is an essential prerequisite to the giving by
your department of its approval to the necessity and location of
such project. The responsibility for initial approval of any sug-
gested project is placed by the statute squarely upon a mayor and
a city council. No duty with regard to such approval is laid upon
any other officials or bodies, nor is any authority given to any other
officials or bodies to grant such initial approval to a project which
may be suggested by some other officer or by themselves, nor can
a mayor and a city council delegate their respective powers of
approval to any other official or body.
It is immaterial that the powers of the street and water com-
mission of Maiden were originally exercised by other bodies, even
including the city council, if such be the case, and that such powers
were vested in the present commission by St. 1906, c. 152.
The power of initial approval and submission of projects under
discussion was created by the said St. 1938, c. 500 ; it did not exist
prior to the effective date of said chapter 500 in 1938. It is a new
power now vested in the city council for the first time, unaffected
by past grants of powers to the street and water commission, to
whom it does not enure and by whom it cannot be exercised.
Very truly yours,
, Paul A. Dever, Attorney General.
P.D. 12 117
Allocation of Funds by Mu7iicipalifies of Allotments under
St. 1938, c. 500.
Oct. 13, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — I am in receipt from you of a letter in which you
state : —
"The question has been raised by several cities and towns as to
whether they may use funds allotted to them under St. 1938, c. 500,
as the town's contribution under chapter 90 agreements, either in
substitution of amounts appropriated under existing agreements
or in lieu of voting appropriations to be used with State and county
funds in future agreements for normal chapter 90 projects."
You also state in your letter certain conclusions of law which
you have formed relative to the question referred to in the above-
quoted paragraph of your letter, as follows : —
"It appears that funds allotted under G. L. (Ter. Ed.) c. 90, are
expended under the direction of this department, and that funds
received by cities and towns under said chapter 500 are expended
under the direction of the local highway departments, this depart-
ment having been authorized to give approval only with respect
to 'necessity and location' of projects to be carried out by the
municipalities."
You further state : —
"St. 1938, c. 500, is an act providing for the payment by the
Commonwealth to its municipalities of a portion of the highway
fund, to enable them to carry out local highway projects for the
purpose of alleviating existing conditions resulting from unem-
ployment."
You have asked my opinion relative to the effect of G. L. (Ter.
Ed.) c. 90, § 34, "in regard to the use of funds allotted to cities
and towns under said chapter 500."
The conclusions of law which you have formed and set forth
in the last two above-quoted paragraphs of your letter are correct.
The appropriation of five million dollars to be paid to the cities
and towns, which is provided for by said chapter 500, is an appro-
priation for use by the municipalities "for local highway projects
including construction, maintenance and repair of local roads,
streets and highways other than state highways, surface drainage,
sidewalks, curbings and bridges," either by itself or in conjunction
with Federal funds. Although the specific uses as designated
above are also uses to which money payable to municipalities under
G. L. (Ter. Ed.) c. 90, § 34, may be put, they do not comprehend
all the uses which may be made of moneys passing by virtue of said
section 34, and moreover, the moneys paid to the municipalities
under said chapter 500 are to be spent by them without being
subject to the direction of your department, as are those which
come to the municipalities under section 34 of said chapter 90.
The projects upon which the moneys coming to the municipalities
under chapter 500 are to be spent must, in the first instance, be
118 ^•^- '-
submitted to your department by the mayor and council of a city
and by the selectmen of a town, and, as a prerequisite, your de-
partment must approve thereof, but only to the extent of approving
"the necessity" and "the location" of such projects.
These differences in regard to the moneys provided for by the
two chapters in question, taken into account together with the
title of the act, the requirement for approval of the necessity ot
any suggested project under chapter 500, and the entire Phrase-
ology of chapter 500, indicate plainly that it was the intent of the
General Court, as expressed in said chapter 500, to authorize the
expenditure of the money payable under its terms to municipalities
only on projects which would not otherwise be ordinarily included
in work to be performed by municipalities in the course ot their
usual routine, and which would speedily give work to as many
workers as possible. In this respect chapter 500 is intended to
be strictly construed so as to effect the real purpose of the chapter,
which is fairly outlined in that portion of its title which states
that the allotted portion of the highway fund is to enable munici-
palities to carry out local highway projects ''for the purpose of
alleviating existing conditions resulting from unemployment.
The real purpose of the act could be easily defeated and the
allotted moneys diverted from the purpose of "alleviating existing
conditions resulting from unemployment" if municipalities, under
the guise of making expenditures under chapter 500, diverted the
moneys received therefor to relieving themselves of burdens prop-
erly falling upon them with relation to the expenditure of moneys
which would nominally be made under section 34 of said chapter 90.
I am of the opinion that when your approval as to the "neces-
sity" of a work project is sought under said chapter 500 you may
not properly give the same when the municipality has already
appropriated money as a contribution for such project under a
chapter 90 agreement, or when the municipality is able to con-
tribute money for such project, to be used with State and county
funds under contemplated agreements which treat such project as
one which may normally be carried out under the provisions of
section 34 of said chapter 90. To do otherwise would be to aid mu-
nicipalities as such rather than to alleviate "existing conditions
resulting from unemployment." See Attorney General's opinion
to you, daled September 15, 1938 {ayite, p. 110).
Very truly yours,
Paul A. Dever, Attorney General.
Insurance — Group Life Insurance — State Police.
Oct. 13, 1938.
Hon. Eugene M. McSweeney, Commissioner of Public Safety.
Dear Sir : — Replying to your letter of jecent date relative to
group insurance for an association of members of the State Police
the act of the General Court to which you refer, G. L. (ler. ihd.)
c 175 § 133, as amended by St. 1938, c. 362, read m conjunction
P.D. 12 119
with other sections of said chapter 175, makes the writing of group
life insurance for "the members" of "any association of state . . .
employees" lawful.
The General Court has not made any distinction in this respect
between associations of State employees who serve as police and
those who serve in any other capacity. The law as set forth in
the above-noted portions of the statutes seems clear upon this
point.
Very truly yours,
Paul A. Dever, Attorney General.
Constitutional Lata — Supervision and Control over Certain
Private Pr^operty — Power of the Legislature.
Oct. 21, 1938.
His Excellency Charles F. Hurley, Governor of the Common-
ivealth.
Sir : — I am in receipt of a communication from the Executive
Secretary, under date of October 19, 1938, advising that at a meet-
ing of the Governor and Council it was voted to request my opinion
in answer to the following question : —
"Is it within the province of the Legislature to enact appropriate
legislation empowering the Department of Public Works to exer-
cise supervision and control over streams, rivers, waterways, dams
and private bridges throughout the Commonwealth?"
While the wording of the inquiry does not disclose it, I under-
stand that the question has particular relation to legislation for
the prevention and control of floods, in behalf of the public health,
safety and welfare.
Answering your question so interpreted, in my opinion it is
within the province of the Legislature to enact appropriate legis-
lation empowering the Department of Public Works to exercise
supervision and control over streams, rivers, waterways, dams and
private bridges.
In the case of Miller v. Scheone, 276 U. S. 272, 279, 280, it was
said : —
"Where the public interest is involved preferment of that inter-
est over the property interests of the individual ... is one of the
distinguishing characteristics of every exercise of the police power
which affects property."
Whether a particular restriction upon the rights of private prop-
erty is valid depends upon whether it bears a substantial relation
to the public health, safety or general welfare. Nectoiv v. City of
Cambridge, 277 U. S. 183.
This opinion is to be construed as relating to supervision and
control for the prevention of floods. It is not to be taken as sanc-
tioning such supervision and control for other purposes, and, of
120 P.D. 12.
course, is not to be construed as approving any particular measure,
as none has been brought to my attention.
Very truly yours,
Paul A. Dever, Attorney General.
Elections — Powers of County Commissioners — Register
of Deeds.
Nov. 17, 1938.
Miss Grace T. Hawksley, Clerk of Courts, Hampshire County.
Dear Madam : — You have asked me several questions relative
to the term of office of a person elected to fill a vacancy in the office
of the register of deeds.
Following a long line of precedents, the Attorney General ordi-
narily does not advise clerks of courts nor county officials relative
to questions of law involved in the performance of their duties,
but inasmuch as the questions which you have asked concern an
elective office I feel that this query is outside the ordinary scope
of questions which are asked of the Attorney General by the above-
named officers, and that an exception should be made to the gen-
eral rule and an opinion given to you with relation thereto.
Your questions read as follows : —
"1. May the returned copies of votes be examined and a certifi-
cate of election be issued by the county commissioners to a person
elected for an unexpired term, before 'the first Wednesday of the
month following the election,' as provided by statute?
2. May a register of deeds elected to fill an unexpired term
qualify and take office before the first Wednesday of January fol-
lowing his election?
3. If the answer to query No. 2 is Yes, would the commission
issued to the register of deeds-elect be invalidated by his failure
to take office before the first Wednesday of January following his
election ?
4. After the issuance of a certificate of election, within what
time must a register of deeds be sworn before the county com-
missioners?"
(1) I answer your first question in the negative. G. L. (Ter.
Ed.) c. 54, § 121, provides, in its applicable part: —
"The county commissioners to whom the copies of the records
of votes for county treasurer and register of deeds have been trans-
mitted shall, on the first Wednesday of the month following the
election, examine such copies, determine what persons appear to
be elected, issue certificates of election to them and give notice to
the state secretary . . ."
The terms of the foregoing section do not permit the county
commissioners to examine copies of the records of votes nor to
issue certificates before the first Wednesday of the month follow-
ing the election, irrespective of whether such election is for an
original or an unexpired term. The section does require, however.
P.D. 12 121
that the designated duties of the county commissioners as set forth
in section 121 be performed on the date given.
(2) I answer your second question in the affirmative. Where
the election is to fill an unexpired term, there is nothing in the
General Laws to indicate that the person who is elected thereto
may not qualify and take up the duties of the office before the first
Wednesday of January following his election. The person who is
designated by the statute or is appointed to fill the office after
its relinquishment by the prior incumbent holds it only while a
vacancy actually exists. If a person has been duly chosen, cer-
tified and qualified for the office, it cannot well be said that a
vacancy any longer exists, and the authority of the person filling
it under the statutory designation or appointment ends with the
qualification of the duly chosen register, if and when the latter
actually takes over the duties of the office ; and there is no express
statutory provision that he may not do so, when he has been elected
for an unexpired term, prior to the first Wednesday of January.
(3) I answer your third question in the negative.
(4) I answer your fourth question to the effect that there is
no specified time within which a register of deeds must take the
qualifying oaths after the issuance of the certificate of election.
Until he does so, the person who is temporarily occupying the office
by statutory designation or appointment remains therein; but if
and when the register-elect qualifies and takes up the duties of the
office, a temporary official ceases to exercise authority any longer.
Very truly yours,
Paul A. Dever, Attorney General.
Board of Registration of Hairdressers — Duplicate Licenses —
Certificates — Fees.
Nov. 21, 1938.
Mr. James J. Sughrue, Director of Registration.
Dear Sir: — You have asked my opinion relative to a question
of procedure raised by the Board of Registration of Hairdressers
in a communication to you, which, in its material parts, reads : —
"Instead of the issuance of duplicate licenses by the Board of
Registration of Hairdressers, under G. L. (Ter. Ed.) c. 112, § 88,
may we issue a certificate, similar to the one enclosed, as provided
under section 88 (2), and charge a fee of one dollar?
The Board feels that a fee of five dollars is exorbitant, because
in case a hairdresser, operator or manicurist loses his or her re-
newal the fee is only two dollars, and it does seem unfair to charge
a fee of five dollars for a duplicate license where a certificate would
cover them until the next renewal date."
I am of the opinion that the Board may not issue what is, in
.effect, the duplicate certificate mentioned in G. L. (Ter. Ed.) c. 112,
§ 88 (3), in another form, and charge therefor only the fee estab-
lished by said section 88 (2) instead of that set up in said clause
(3).
122 P.D. 12.
The "certified statement of registration" referred to in said sec-
tion 88 (1) and (2) is a different document from the "duplicate"
of such certificate mentioned in clause (3), for which a specific
fee is required by the statute itself, different from the fees estab-
lished for the original certificates designated in clauses (1) and
(2).
Very truly yours,
Paul A. Dever, Attorney General.
Massachusetts Unemployment Compensation Commission — State
Advisory Council — Duties — Expenses.
Nov. 28, 1938.
State Advisory Council of the Massachusetts Unemployment Com-
pensation Commission.
Gentlemen : — You have asked my opinion upon the following
questions relative to the work of your Council : —
"1. To whom should the Council make any recommendations?
2. Should the Council make an annual report to the Legislature;
and if so, when ?
3. Do 'full investigatory powers' include the power to summon
witnesses before investigations by the Council, and the power to
administer oaths to such witnesses before taking their testimony?
4. In the performance of its duties, has the Council the power
to incur such expense as in its sole discretion is necessary?
5. Must the Commission approve and pay from the Unemploy-
ment Commission administration account such expenses as the
Council presents to the Commission as being necessary to the
proper performance of the duties of the Council?
6. May the Council delegate its powers and duties to a sub-
committee or to employees of the Council?"
(1) I answer your first question to the effect that your Council
should make recommendations to the Unemployment Compensation
Commission. A special report under the provisions of G. L. (Ter.
Ed.) c. 30, § 35, might be made.
(2) There is no provision of law which requires your Council
to make an annual report to the Legislature. Advantage, upon
proper ocasion, might be taken to do so under said G. L. (Ter. Ed.)
c. 30, § 35.
(3) I answer your third question in the negative.
(4) The members of the Council have discretion to incur travel
and other incidental necessary expenditures without approval by
any other official.
(5) The Commission should approve, and there should be paid
to the members of the Council, under G. L. (Ter. Ed.) c. 151 A,
§ 42, such actual and necessary traveling and other incidental
necessary expenses as they may have incurred, respectively, but
such sums should not be paid unless such expenses were in fact
necessary. In the last analysis, the determination of the necessity
of such expenses rests with the State Treasurer.
P.D. 12 123
(6) The Council may not delegate its powers and duties but
may use persons, employed for the purpose by the Commission,
to assist it in discharging its duties under its direction, when
necessary, and may delegate to a subcommittee the duty of assist-
ing it in a similar manner.
Very truly yours,
Paul A. Dever, Attorney General.
Licenses — Second-hand Motor Vehicles — Renewals.
Nov. 28, 1938.
Hon. Joseph F. Timilty, Police Commissioner for the City of
Boston.
Dear Sir : — You have asked my opinion, in effect, as to whether
the provisions of G. L. (Ter. Ed.) c. 140, § 59, as amended by St.
1938, c. 96, with relation to licenses and permits to be issued there-
under to a certain class of persons buying second-hand motor
vehicles, require the notice and hearing designated in the statute
upon application for the "renewal" of such licenses and permits.
G. L. (Ter. Ed.) c. 140, § 59, as amended, provides: —
"No license or permit shall be issued hereunder to a person
within said class three until after a hearing, of which seven days'
notice shall have been given to the owners of property abutting
on the premises where such license or permit is proposed to be
exercised."
I am of the opinion that the statute does require the same pro-
cedure as above designated upon applications for "renewals" as
upon those for original licenses.
The provision of said section 59 requiring that licenses granted
under its terms "shall expire on January first following the date
of issue" confirms my opinion as to the intent of the Legislature
in this respect.
There are certain limitations, which have been plainly expressed
by former Attorneys General, as to the extent to which opinions
and advice should be given to the Police Commissioner for the City
of Boston by the Attorney General under the acts of the Legislature
applicable to the two officers, but your instant question appears
to me to be one so related to your duties under the statutes govern-
ing your oflfice as to make it a proper subject for an expression
of my opinion, as to the application of such statutes, within the
bounds of such limitations.
Very truly yours,
Paul A. Dever, Attorney General.
124 P.D. 12.
Department of Public Works — Approval of Certain Contracts.
Nov. 29, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — I am in receipt from you of the following letter : —
"Will you kindly advise me, so that I may be governed accord-
ingly, whether or not it is necessary for this department to submit
for approval to the Governor and Council any contract made under
the provisions of St. 1938, c. 507."
Under the provisions of G. L. (Ter. Ed.) c. 91, § 31, it is re-
quired, with regard to contracts to be performed by your depart-
ment for the repair of damages occasioned by storm or other
destructive agencies "along the coast line or river banks," that
such contracts shall not be valid until approved in writing by the
Governor and Council.
The appropriation bill, St. 1938, c. 507, providing funds for addi-
tional emergency work made necessary by the recent hurricane
and floods, sets aside for the service of your department, under
item 665a, "Waterways, outside of the Port of Boston," the sum
of §143,000. This item 665a refers to an item of a similar number
in the general appropriation bill, and it is thereby indicated that
it is to be expended for repairing damages "along the coast line
or river banks," plainly showing that the contracts to be paid for
under this appropriation fall within the class mentioned in said
section 31, and therefore require the approval of the Governor and
Council.
Very truly yours,
Paul A. Dever, Attorney General.
Department of Public Works — Approval of Certain Contracts.
Nov. 29, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — You have, in effect, asked my opinion whether it
is necessary that you should obtain the approval of the Governor
and Council in order to make valid such contracts as you may make
for "improvements in rivers and streams, made necessary by the
hurricane and flood," as provided for in St. 1938, c. 506.
Said chapter 506 is not in any sense a general appropriation
bill covering various branches of the Commonwealth's service, as
is St. 1938, c. 507, and appropriations made by chapter 506 are
not connected up by item numbers, or otherwise, with similar items
of the general appropriation bill of 1938, chapter 356. It is a
special act standing by itself, and specifically authorizes you to
undertake certain work, for the purpose outlined in the above-
quoted part of its title, in "rivers and streams" generally.
"Rivers and streams," as the words are used in this act, are
not synonymous with the words "coast line or river banks," as
employed by the Legislature in G. L. (Ter. Ed.) c. 91, § 31, and,
P.D. 12 125
since there is no specific provision in this act (chapter 506) for
approval by the Governor and Council of contracts made there-
under, you are not required to obtain such approval by reason of
the provisions of the General Laws above noted with relation to
coast line or river banks.
Hence you may make valid contracts, to be paid for out of the
moneys mentioned in chapter 506, without the approval of the
Governor and Council thereto.
Very truly yours,
Paul A. Dever, Attorney General.
Outdoor Advertising — Removal of Billboards — Authority.
Nov. 30, 1938.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir : — You request an opinion with respect to the author-
ity vested in the Department of Public Works in relation to re-
moval of billboard structures which are erected in violation of law.
G. L. (Ter. Ed.) c. 93, § 30A, as last amended by St. 1931,
c. 394, § 97, provides : —
"Any billboard, sign or other device erected after August twen-
tieth, nineteen hundred and twenty, without the authorization or
permit of the department in cases where such authorization or
permit is required or maintained after said date in violation of
any rule or regulation of the department shall be deemed a nui-
sance. Said department shall have the same power to abate and
remove any such nuisance as is given to the board of health of
a town under sections one hundred and twenty-three to one hun-
dred and twenty-five, inclusive, of chapter one hundred and eleven,
and the provisions of said sections shall, so far as applicable, apply
in the case of a nuisance as herein defined. The remedy herein
provided shall be in addition to any other remedy provided by
law."
Section 31 of said chapter 93, as last amended by St. 1920, c. 545,
§ 6, further provides : —
"The supreme judicial and superior courts shall have jurisdic-
tion in equity upon petition of the attorney general, of any town
or any officer thereof, or of any interested party, to restrain the
erection or maintenance of any billboard, sign or other device
erected or maintained in violation of any rule, regulation, ordi-
nance or by-law established or adopted under section twenty-nine,
and to order the removal or abatement of such billboard, sign or
device as a nuisance."
Turning to the authority given to the board of health of a town
by G. L. (Ter. Ed.) c. Ill, §§ 123-125, inclusive, for abatement of
a nuisance the following provisions are found : —
"Section 123. Said board shall order the owner or occupant
of any private premises, at his own expense, to remove any nui-
126 P.D. 12.
sance, source of filth or cause of sickness found thereon within
twenty-four hours, or within such other time as it considers rea-
sonable, after notice ; and an owner or occupant shall forfeit not
more than twenty dollars for every day during which he knowingly
violates such order.
Section 124. Such order shall be in writing, and may be served
personally on the owner, occupant or his authorized agent by any
person authorized to serve civil process; or a copy of the order
may be left at the last and usual place of abode of the owner, occu-
pant or agent, if he is known and within the commonwealth. If
the premises are unoccupied and the residence of the owner or
agent is unknown or is without the commonwealth, the board may
order the notice to be served by posting it on the premises and
by advertising it in one or more newspapers.
, Section 125. If the owner or occupant fails to comply with
such order, the board may cause the nuisance, source of filth or
cause of sickness to be removed, and all expenses incurred thereby
shall be paid by the person who caused or permitted the same,
if he had had actual notice from the board of health of the exist-
ence thereof."
In CiUj of Salem v. Eastern R.R. Co., 98 Mass. 431, 444, the
court held that after the property owner is informed of the nature
and locality of the nuisance, so that it has an opportunity to apply
the remedy if it see fit to do so, then, "if the owner or occupant
neglect to remove the nuisance, the board of health are ... at
libery to enter upon the private property where it exists, and take
such measures as they may see fit for its removal."
Summarizing, I advise you: (1) That proceedings for the re-
moval or abatement of a billboard, sign or device as a nuisance may
be instituted in the Supreme Judicial Court or the Superior Court
upon petition of the Attorney General, of any town or any officer
thereof, or of any interested party; (2) that your department may
order the owner or occupant of any private premises to remove, at
his own expense, any such structure erected after August 20, 1920,
within twenty-four hours or such other time as considered rea-
sonable after notice, such order to be in writing and served as pro-
vided by G. L. (Ter. Ed.) c. Ill, § 123; and (3) that if the owner
or occupant, having been duly notified, fails to comply with the
order, the department may itself cause the structure to be removed
as provided by section 125 of said chapter 111. In removing the
structure the agents of the department may enter upon the private
property where the structure exists and take such reasonable
measures as are necessary and proper for its removal.
Very truly yours,
Paul A. Dever, Attorney General.
P.D. 12 127
INDEX TO OPINIONS
PAGE
Alcoholic beverages; license; "package goods" store; fee . 32
Renewals
Wholesaler; importer; manufacturer
Sales; aliens; treaties
Cattle; importation; rules
City purchasing agent; school system; Plan A charter
Civil service; appointing officer; certifications
City ordinance; secretary
Classification; assistant purchasing agent
Municipal officer
Eligible list; extension
Examinations; Commissioner
Promotion
Municipal employee
Municipal Plan B; confirmation of appointment liy city coimcil .
Physical records of applicants for positions
Town fire department; acceptance of statute
Conservation, Department of; State forest; town ways; discontinuance
Constitutional law; highways; plaj'grounds
Practice of optometry; unreasonable and reasonable restrictions .
Rates and price fixing for the sale of gas
Supervision and control over certain private property; power of the
Legislature
Wild life sanctuaries; owners of land
Defective delinquents; statutes; discharge
Departmental liabilities in excess of appropriations; St. 1938, c. 356;
approval
Elections; powers of county commissioners; register of deeds
Emergency Public Works Commission; authority to apply for Federal aid 93
Federal works projects; power of Commissioners to apply for Federal
funds
Governor; approval of legislative acts; appropriation ....
Governor and Council; mayor; special justice of a district court; com
patible offices
Rule; vote
Transfer of departmental control of land
Great ponds; fishing; regulations
Hairdressers, Board of Registration of; duplicate licenses; certificates: Ice
Highways; authority of the Department of Public Works as to approva
of "flares"
Hospitals; service plan; foreign institution ....
Hunting and fishing; landowners; licen.sed hunters .
Insurance; group life insurance; State Police
Investments of companies; Federal debentures
Receivership; deposits of foreign companies .
License; dentist; registration
Second-hand motor vehicles; renewals ....
Marriage; insane persons; feeble-minded persons
Mental Diseases, Department of; contracts; amending statute
Removal of Commissioner; Governor; Council
Motor vehicles; main highways; regulations
69
70
56
77
34
24
109
39
50
68
22
47
17
86
91
78
103
60
85
74
119
65
72
115
120
104
81
99
27
90
89
121
107
114
31
118
52
62
53
123
47
in
45
16
of certain contracts (two
128 P.D. 12.
PAGE
Municipalities; allotments under St. 1938, c. 500; allocation of funds . 117
Approval of projects under St. 1938, c. 500 116
Expenditures; highway projects; appropriation 110
Licensing commission; members 76
Notes; power of State Director of Accounts to approve; amending
statute 105
Old age assistance; creditors; estate; powers of local bureau . . .113
Eligibility 56
Lump sum payment 67
Statute; settlement 38
Optometry, practice of; unreasonable and reasonable restrictions . 83, 85
125
96
15
72
wife; construction of statute 87
88
95
53
124
108
99
112
46
101
36
79
100
42
33
91
30
17
93
61
54
55
41
25
102
51
122
114
28
92
19
Outdoor advertising,; removal of billboards; authority
Primaries; qualification of candidates; emergency act
Prison officer; retirement; age .
Prisoner; time off for good behavior
Probation; payments for support of prisoner
Probation officer; appointment; approval
Retirement; age ....
Public funds; expenditures; appropriation
Public Works, Department of; approval
opinions)
Authority to maintain sidewalks
Federal project; authority of department
Sale of land
Quabbin Park Cemetery; funds; perpetual care .
Salisbury Beach Reservation; improvement; appropriation
Schools; pupils; flag salute
Secretary of the Commonwealth; registration of device .
Sewerage; acquisition of land by a municipality; authority
Soldiers' relief; veterans' children; settlement .
State Ballot Law Commission; compensation; appropriation
State employees; temporary appointees; mihtary duty
State hospitals; stewards; appointments ....
State Librarian; increase in salary; appropriations
State Prison; habitual criminal; time off for good behavior
Violation of pardon; sentence .
State reservation; police; county commissioners
State Teachers Colleges; meetings of students
Teachers' retirement system; public schools .
Salary; assessments
Undertaker; removal of a dead body; permit; hospital
Unemployment Compensation Commission; compensation; waiting period;
W.P.A
State Advisory Council; duties; expenses .
State Treasurer; requisition for Federal funds
Unfair labor practices; contracts; investigations
Wachusett Mountain State Reservation Commission; authority; county
treasurer and commissioners
Workmen's compensation; costs
P.D. 12 129
RULES OF PRACTICE
In Interstate Rendition.
Every aiiplication to the Governor for a requisition upon the executive author-
ity of any other State or Territory, for the delivery up and return of any offender
who has fled from the justice of this Commonwealth, must be made by the dis-
trict or prosecuting attorney for the county or district in which the offence was
committed, and must be in duplicate original papers, or certified copies thereof.
The following must appear by the certificate of the district or prosecuting
attorney: —
(o) The full name of the person for whom extradition is asked, together with
the name of the agent proposed, to be properly spelled.
(6) That, in his opinion, the ends of public justice require that the alleged
criminal be brought to this Commonwealth for trial, at the public expense.
(c) That he believes he has sufficient evidence to secure the conviction of the
fugitive.
(d) That the person named as agent is a proper person, and that he has no
private interest in the arrest of the fugitive.
(e) If there has been any former apphcation for a requisition for the same
person growing out of the same transaction, it must be so stated, with an ex-
])lanation of the reasons for a second request, together with the date of such
ai)phcation, as near as may be.
(/) If the fugitive is known to be under either civil or criminal arrest in the
State or Territory to which he is alleged to have fled, the fact of such arrest and
the nature of the proceedings on which it is based must be stated.
(g) That the application is not made for the purpose of enforcing the collec-
tion of a debt, or for any private purpose whatever; and that, if the requisition
applied for be granted, the criminal proceedings shall not be used for any of
said objects.
(/i) The nature of the crime charged, with a reference, when practicable, to
the particular statute defining and punishing the same.
(i) If the offence charged is not of recent occurrence, a satisfactory reason
nuist be given for the delay in making the application.
1. In all cases of fraud, false pretences, embezzlement or forgery, when made
a crime by the common law, or any penal code or statute, the affidavit of the
principal complaining witness or informant that the application is made in good
faith, for the sole purpose of punishing the accused, and that he does not desire
or expect to use the prosecution for the purpose of collecting a debt, or for any
private purpose, and will not directly or indirectly use the same for any of said
purposes, shall be required, or a sufficient reason given for the ab.sence of such
affidavit.
2. Proof by affidavit of facts and circumstances satisfying the Executive that
the alleged criminal has fled from the justice of the State, and is in the State on
whose Executive the demand is requested to be made, must be given. The fact
that the alleged criminal was in the State where the alleged crime was committed
at the time of the commission thereof, and is found in the State upon which the
requisition was made, shall be sufficient evidence, in the absence of other proof,
that he is a fugitive from justice.
3. If an indictment has been found, certified copies, in duplicate, must accom-
pany the apphcation.
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
perpetrated 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 requisition, such complaint to be accompanied by affidavits to
130 P.D. 12.
the facts constituting tlie 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 appli-
cation. The affidavit or affidavits should contain sufficient facts to make out
a prima facie case of guilt, and should not be a reiteration of the form of the
complaint nor contain conclusions of law.
5. The official character of the officer taking the affidavits or depositions, and
of the officer who issued the warrant, must be duly certified.
6. Upon the renewal of an application, — for example, on the ground that
the fugitive has fled to another State, not having been found in the State on
which the first was granted, — new or certified copies of papers, in conformity
with the above rules, must be furnished.
7. In the case of any person who has been convicted of any crime, and escapes
after conviction, or while serving his sentence, the application may be made by
the jailer, sheriff, or other officer having him in custody, and shall be accom-
panied by certified copies of the indictment or information, record of conviction
and sentence upon which the person is held, with the affidavit of such person
having him in custody, showing such escape, with the circumstances attending
the same.
8. No requisition will be made for the extradition of any fugitive except in
compliance with these rules.
JUL 2 4-41 w.PJU
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