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

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 granted a similar license in 
1937 to be exercised on premises other than those which were 
covered by the license it held in 1936? 

2. Whether or not a certain corporation, not having held a 
'package goods' store license during the year 1937, may legally be 
granted such a license for the year 1938?" 

By virtue of the provisions of St. 1937, c. 14, section 17 of G. L. 
(Ter. Ed.) c. 138 (the liquor control act), was so amended as to 



70 P.D. 12. 

provide for the issuance of three hundred and five "package goods" 
store licenses only in Boston, but further provided, as had prior 
amendments, that — 

". . . no further original licenses under section fifteen shall be 
granted . . . until the number of licenses outstanding thereunder 
shall have been reduced to less than two hundred and fifty by can- 
cellation or revocation or the failure of holders of such licenses 
to apply for renewals, and thereafter licenses thereunder may be 
granted only up to a total not exceeding two hundred and fifty." 

Inasmuch as you state that the corporation in question had no 
"package goods" store license in 1937, a license issued to it for 
1938 would fall within the meaning of an "original license," as 
those words are used in the above-quoted portion of said section 17. 
Such portion of section 17 places an absolute prohibition on the 
issuing of further "original licenses" until the whole number of 
outstanding licenses in Boston shall have been reduced to less than 
one of such means which will accomplish such reduction is de- 
two hundred and fifty, by means described in the section. That 
scribed as "failure of holders of such licenses to apply for re- 
newals" does not mean, as has been suggested, that if a holder of 
a license does not fail to apply for its renewal but does not obtain 
it, as did the corporation of whom you write, any license for which 
he may thereafter apply is not to be considered as an "original" 
license. Mention of failure to apply is made by the Legislature, in 
the quoted part of section 17, with reference to a manner in which 
the reduction in the number of licenses may come about, not as 
affecting the character of a particular license itself. 

I accordingly answer your second question in the negative. 

I do not answer your first question, as it relates to past affairs 
not now before you for action and is at the present time purely 
hypothetical. 

Very truly yours, 

Paul A. Dever, Attoryiey General. 



Alcoholic Beverages — License — Wholesaler — Importer — 

Manufacturer. 

April 30, 1938. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You have recently written me as follows : — 

"We are enclosing herewith a copy of a petition in which it is 
requested that the Commission order the refund of certain license 
fees paid by a certain corporation for licenses issued to the corpo- 
ration by this Commission." 

You state that the facts set forth in a petition annexed to your 
letter "are substantially correct." The Attorney General does not 
pass upon questions of fact, and therefore assuniies for the pur- 
poses of this opinion that the said facts are, as stated by you, 
"substantially correct." 



P.D. 12 71 

These facts, briefly summarized, are as follows: A corporation 
holding a wholesaler's and importer's license for the sale of all 
alcoholic beverages, issued to it by your Commission, desired to 
compound, rectify and blend alcoholic beverages, and its officers, 
believing that it could not do so unless it had also a manufacturer's 
license to manufacture alcoholic beverages, applied for, paid for 
and had issued to it such a manufacturer's license in addition to 
its wholesaler's and importer's license, and did this in each of the 
four years last past, paying for the manufacturer's license in each 
year a fee of $3,000, The corporation did compound, rectify and 
blend alcoholic beverages in each of such years but did no other 
act permitted by the manufacturer's license. The corporation now 
asks that your Commission refund to it the sums so paid as fees for 
the manufacturer's license in each of the four years, by virtue of 
the provisions of section 23 of the Alcoholic Beverages Control 
Act, as amended, which in its pertinent parts reads : — 

"The licensing authorities empowered to issue any license or 
permit may order refunded the whole or any part of the fee for 
such a license or permit in case of an error in the kind of a license 
or permit issued. . . . Any sums ordered refunded as aforesaid 
shall be paid from any available funds in the treasury of the com- 
monwealth or municipality as the case may be." 

The corporation referred to, since it possessed a wholesaler's 
and importer's license, was authorized by the terms of such license 
granted under section 18 of G. L. (Ter. Ed.) c. 138, the Alcoholic 
Beverages Control Act, among other things, to "compound, rectify 
or blend any alcoholic beverages purchased by them in bulk," and 
did not require a manufacturer's license (provided for in section 
19 of said act), in addition to such a wholesaler's and importer's 
license, to so "compound, rectify or blend." 

The sole question of law involved in a determination of the in- 
stant matter is whether or not upon the foregoing facts it can be 
said that there was "mi error in the kind of license . . . issued" 
with respect to the manufacturer's license. 

There was no error or mistake upon the part of the Commission. 
It issued the precise kinds of licenses applied for by the licensee in 
each of a series of four years. There was no error on the part of 
the licensee or its officers in the sense of a mistake or accident or 
error-in-fact in applying for and accepting the manufacturer's 
licenses. The intention of the licensee and its offi.cers to apply for, 
to accept and to pay for the manufacturer's license in each year is 
clear. The application for the second form of license was inten- 
tional, but the formation of this intent in the minds of the corpo- 
ration's officers was due, apparently, to ignorance of the law. I 
am of the opinion that it cannot be said that in the issuing of the 
successive manufacturer's licenses there was a "case of an error 
in the kind of license . . . issued," as the quoted words are used in 
said section 23. 

Very truly yours, 

Paul A. Dever, Attorney General. 



72 P.D. 12. 

Prisoner — Time off for Good Behavior. 

May 5, 1938. 
Hon. Ralph W. Robart, Chairman, Parole Board. 

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

"In view of the fact that St. 1938, c. 264, was signed by His 
Excellency on May 3, 1938, and has attached thereto an emergency 
preamble, may I ask for an official ruling on the following : 

In section 1 of said chapter appear the words, 'from the maxi- 
mum term for which he may be held under his sentence.' 

Query : As applying to a prisoner returned to an institution for 
violation of parole, is the Parole Board obliged to issue a permit 
to such a prisoner to be released under this law based on deductions 
from his original maximum term as sentenced by the court, or 
should the Parole Board issue a permit based on deductions from 
the maximum term that the Parole Board could hold the prisoner 
from the date of his return to the institution until the completion 
of his maximum term?" 

I answer your query to the effect that your Board is required by 
said St. 1938, c. 264, to issue a permit to be at liberty to a prisoner 
based on deductions from his original maximum term as such term 
is specified in the sentence, and not upon any other basis, irrespec- 
tive of any releases upon parole arid returns to the institution of 
commitment which may have occurred. 

The phrase in section 1 of said chapter 264 to which you direct 
my attention, "from the maximum term for which he may be held 
under his sentence," as therein used by the General Court has the 
same meaning as the words from the maximum terin of his sen- 
teyice would have had if they had been employed in its stead in the 
said chapter 264. 

Very truly yours, 

Paul A. Dever, Attorney) General. 



Defective Delinquents — Statutes — Discharge. 

May 11, 1938. 
Hon. Arthur T. Lyman, Commissioner of Correction. 
Dear Sir : — You request my opinion as follows : — 

"I enclose herewith a copy of St. 1938, c. 254, signed by the 
Governor, April 28, 1938, and respectfully request your opinion as 
to the date this law takes effect. 

We have another question regarding this law, to which we should 
appreciate a reply. Section 3 amends G. L. (Ter. Ed.) c. 123, 
§ 119, so that a district court, in whose jurisdiction the Depart- 
ment for Defective Delinquents is located, has no authority to 
parole inmates of such a department. I beg to state that at the 
present time there are persons in the community who have been 
ordered paroled under section 119 by the Brockton District Court. 
The law requires that further action on the inmate's discharge 



P.D. 12 73 

shall be suspended for one year from the date of his release on 
parole. Has the judge Of the Brockton District Court authority to 
order the final discharge of an inmate who has been paroled by said 
court, the anniversary of whose parole has not yet occurred?" 

In relation to your first request, said chapter 254 has not been 
declared to be an emergency law, it is not subject to a referendum 
petition since it is a measure which relates to the powers of the 
courts, and it is not specified by the General Court as taking effect 
upon its passage or at any given date. Accordingly, it falls within 
the provisions of G. L. (Ter. Ed.) c. 4, § 1, and becomes effective 
on the thirtieth day next after the day of its approval by the Gov- 
ernor, which thirtieth day will be the 28th day of May, 1938. 

In relation to your second question, in accordance with estab- 
lished rules of statutory construction this act, in so far as it 
amends said section 119, is to be given a prospective and not a 
retroactive construction or application, since there is an absence 
of specific words in the section indicating a legislative intention to 
produce a retroactive effect. Indeed, to give to the amendment 
of said section 119 as created by section 3 of said chapter 254 a 
retroactive effect would be to alter the situation of one previously 
committed as a defective delinquent, and paroled by a justice of 
a district court, to the delinquent's disadvantage, and by such in- 
terpretation the amendment would fall within the prohibition 
against ex post facto laws, contained in the State and Federal Con- 
stitutions. Murphy v. Commonwealth, 172 Mass. 264. At the 
time when a defective delinquent was heretofore committed he was 
entitled to be paroled by the justice of a district court, under cer- 
tain conditions, and one year thereafter to be discharged from his 
commitment by such justice if certain conditions then existed. In 
so far, at least, as a retroactive interpretation of the amending 
section, which would deprive such a delinquent so paroled of the 
opportunity to have the justice of the district court pass upon the 
question of his discharge after one year from the date of parole, is 
concerned, it cannot be adopted, for to do so would be to render 
the statute unconstitutional, and a mode of interpretation pro- 
ducing such a result may not be adopted in the absence of express 
legislative provisions to such effect admitting of no doubt as to 
their meani^ig. 

In Murphy v. Commonwealth, 172 Mass. 264, 269, it was said : — 

"The Legislature, under the guise of laws relating to procedure 
or prison discipline or penal administration, cannot take away or 
interfere with any substantial right or privilege which was secured 
to a party by the law as it was when the offence was committed." 

It follows, then, that the amendment made by section 3 of said 
chapter 254 to section 119 of G. L. (Ter. Ed.) c. 123, is prospective 
in effect, and does not operate to prohibit the exercise of the power 
to discharge defective delinquent offenders heretofore paroled by 
a justice of a district court one year after the date when a parole 
still in force was granted. It would also follow that in any of the 
specific cases which you have mentioned in your letter the justice 
of the Brockton District Court would have authority to exercise 
the power to discharge after one year of parole, other requirements 



74 P.D. 12. 

of section 119 with relation to discharge, as such section appears 
before the present amendments, being met. 

Very truly yours, 

Paul A. Dever, Attomeij General. 



Constitutional Laiv — Rates and Price Fixing. 

May 12, 1938. 

Hon. A. I. ZiMON, Chairman, House Committee on Bills in the 

Third Reading. 

Dear Sir : — You have in effect requested my opinion as to 
whether House Bill No. 1817, if enacted into law, would be con- 
stitutional. 

This measure reads as follows : — 

"An Act regulating the price of gas furnished to consumers in 
the Hyde Park district of the city of Boston. 

The price of gas furnished to consumers in the Hyde Park dis- 
trict of the city of Boston, which gas is furnished by the Dedham 
and Hyde Park Gas Company, for the purposes of lighting, heating 
and cooking shall not exceed the price paid for gas furnished by 
any other company to consumers in other districts of said city. 
Violation of the provisions of this act shall be punished by a fine 
of not less than five nor more than five hundred dollars for each 
offence." 

The General Court has heretofore delegated authority to the 
Department of Public Utilities to fix rates and consequent prices 
for the sale by gas companies of gas to consumers. G. L. (Ter. Ed.) 
c. 164 §§ 93 and 94. In order to discharge its duties in a lawful 
manner such department may not fix rates at such a figure as will 
not be "fair and reasonable and not confiscatory." Donham v. 
Public Service Commissioners, 232 Mass. 309, 316. Its rates must 
be fixed with reasonable regard to the cost of the service and for 
the value of the property employed therein. It is authorized to 
establish such rates and prices for individual companies. To 
provide by legislative enactment that in respect to a single com- 
pany the prices which may be established for it may not in any 
instance exceed the price charged by any other company in the 
same city is, in effect, to impose upon the authority to whom the 
rate and price fixing power is delegated a limitation as to their 
method of determination, which in a given instance, if followed, 
might result in a determination which would not be fair, reason- 
able and nonconfiscatory. 

In Opinion of the Justices, 251 Mass. 569, 610, 611, it was 
said : — 

"A fundamental principle of rate making by public authority is 
that in general the rate so established must be sufficient to yield 
a fair return on the reasonable value of the pr.operty used or in- 
vested for doing the business after paying costs and carrying 



P.D. 12 75 

charges. Rates not sufficient to yield such return are unjust, 
unreasonable and confiscatory." 

An act which imposes upon an authority, to whom the Legisla- 
ture has delegated the power to fix rates, a standard of determina- 
tion which may destroy its ability to fix reasonable and nonconfis- 
catory rates violates the principles of due process of law as to the 
company affected and violates the Fourteenth Amendment to the 
Constitution of the United States. 

The maximum price paid for gas by the customers of other com- 
panies in the same city is not necessarily a fair maximum price 
for a given company. To establish it as such, irrespective of what 
determinations of fact may be found by the rate making authority, 
is an arbitrary, as distinguished from a reasonable, act. 

In Los Angeles Gas Co. v. Railroad Commission, 289 U. S. 287, 
304, the court said : — 

"The legislative discretion implied in the rate making power 
necessarily extends to the entire legislative process, embracing the 
method used in reaching the legislative determination as well as 
that determination itself. We are not concerned with either, so 
long as constitutional limitations are not transgressed. When 
the legislative method is disclosed, it may have a definite bearing 
upon the validity of 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