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

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Public Document No. 12 



Cf)e CommonUjeaIti) of ^assact)U0ctt0 



REPORT 



[of the 



ATTORNEY GENERAL 



y 



Year ending November 30, 1939 



1^ 







STATE Lk]H/\ii; ui „ 

JUN5 1941 

STATE HOUSE, BOSTON 



Cfje Commontoealtf) of Q^asgacf)U0etts 



Department of the Attorney General. 
Boston, January 17, 1940. 

To the HouoraNc Smote and Hovse of Representotives. 
I haxe the honor to transmit herewith the report of the Department for tlie 

year ending Xoveml>er 30, 1939. 

Very respectfully, 

PAUL A. DEVER, 

Attorney General. 



i 



4 , 

1939 
A 

^bt CommonUiealt!) of ^assacJ^usetts 



DEPARTMENT OF THE ATTORNEY GENERAL. 
State House. 



Attorney General. 
PAUL A. DEVER. 



Secretary to the Attorney General. 
John E. Huri.ky. 



Assistants. 
Edward 0. Proctor. 
J. Burke Sullivan. 
Roger Clapp. 
JoHx S. Derham. 
Arthur V. Sulliva.v. 

MAURrCE M. GOLDMAX. 

Edward McPartlix. 

DaXIEL J. DOHERTY. 

Walter W. O'Donxell. 
Raymond H. Favreau. ' 
James J. Bacigalupo. 
Raymond E. Sullivan. - 
William .J. L.\ndergan. 
Edward A. Pecce. 
Louis A. Novins. 
Mary Siexkiewicz Dumas. 

Director of Division of Collections. 
Edward L Rasxk k. 

Chief Law Clerk to the Attorney General. 
Harold .J. Welch. 

Cashier and Law Clerk to the Attorney General. 
John J. Harrington. ^ 



Died Sept. 26, 193J. ■ Resigned Dec. .31. 1938. ' Appoioted Jan. 18, 1939. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Year. 

General appropriation for 1939 $153,088 46 

Balance brought forward from 1938 appropriation, deficiency and 

transfers 4,728 90 

Appropriation for small claims 5,000 00 

Appropriation under G. L. (Ter. Ed.) c. 12, § 3B . . . . 8,000 00 

$170,817 36 

Expenditures. 

For salary of Attorney General $8,000 00 

For salaries of assistants and others 134,333 06 

Incidentals 11,518 16 

For small claims 4,932 72 

For claims under G. L. (Ter. Ed.) c. 12, § 3B 5,606 43 

Total expenditures $164,390 37 

Balance $6,426 99 

Financial statement verified. 

Approved. 

GEO. E. MURPHY, 

Comptroller. 



Cf)c CommonUjealt!) of 0ia00ac!)usetts 



Depaktment of the Attorney General, 
Boston, January 17, 1940. 

To the Honorable Senate and House of Representatives. 

Pursuant to the provisions of section 11 of chapter 12 of the General Laws 
(Tercentenary Edition), as amended, I herewith submit my report. 

The cases requiring the attention of this Department during the j'ear ending 
November 30, 1939, to the number of 7,504 are tabulated below: 



Corporate franchise tax cases .... 

Extradition and interstate rendition 

Land Court petitions ...... 

Land damage cases arising from the taking of land: 

Department of Public Works 

Department of Mental Health 

Department of Conservation 

Department of the Adjutant General 

Metropolitan District Commission 

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

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

Settlement cases for support of persons in State hospitals 
All other cases not enumerated above, which include suits to require the filing 
of returns by corporations and individuals and the collection of monej' 
due the Commonwealth ......... 

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

Disposed of .......... 14 

Now pending .......... 2 



1,010 
95 
74 

355 

2 

2 

2 

49 

76 

599 

40 

539 

23 



4,622 
16 



X 



6 P.D. 12. 

Details of Capital Cases. 

1. Disposition of indictments pending Kov. 30, 193S. 

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

F. Bradford). 

Wallace W. Green and Walter St. Sauveur. 

Indicted June, 1938, for the murder of William Phillips, at Somerville, on May 31, 
1938; arraigned July 1, 1938, and each pleaded not guilty; trial September, 1938; 
verdict of guilty of murder in the first degree as to each ; thereupon each sentenced 
to death by electrocution; April 14, 1939, rescript "Judgment affirmed as to each 
defendant" on claim of appeal; Aug. 7, 1939, sentences carried out. 

Suffolk 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; trial June, 1939; verdict of not 
guilty. 

George T. Knox. 

Indicted November, 1938, for the murder of Helen Dale, on May 22, 1937; arraigned 
Dec. 19, 1938, and pleaded not guilty; trial April, 1939; verdict of not guilty. 

2. Indictments found and dispositions since Nov. 30, 1938. 

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

Hoban). 

Victoria Lefebvre. 

Indicted May, 1939, for the murder of Florient J. Lefebvre, alias, at Ashburnham, 
on Jan. 21, 1939; arraigned May 18, 1939, and pleaded not guilty; Sept. 11, 1939. 
retracted former plea and pleaded guilty to murder in the second degree, which plea 
was accepted; thereupon sentenced to Reformatory for Women for life. 

John Wieczek. 

Indicted January, 1939, for the murder of Michael Wieczek, at Worcester, on Nov. 19, 
1938; arraigned Feb. 10, 1939, and pleaded not guilty; May 17, 1939, retracted 
former plea and pleaded guilty to murder in the second degree, which plea was 
accepted; thereupon sentenced to State Prison for life. 

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

F. Bradford). 

Cornelius J. Crimmens. 

Indicted January', 1939, for the murder of John Callinan, at Cambridge, on Dec. 13, 
1938; arraigned Jan. 13, 1939, and pleaded guilty to manslaughter, which plea was 
accepted; thereupon sentenced to the house of correction at Cambridge for eighteen 
months. 

Raymond Scalia. 

Indicted December, 1938, for the murder of Joseph Castrogiovanni, at Waltham, on 
Dec. 11, 1938; arraigned Dec. 19, 1938, and entry of a plea of not guilty ordered by 
the court; Jan. 19, 1939, retracted former plea and pleaded guilty to murder in the 
second degree, which plea was accepted; thereupon sentenced to State Prison for 
life. 



P.D. 12. 7 

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

Frances Haggiar. 

Indicted in Norfolk County, December, 1938, for the murder of Eugene Vespaziani, 
at Quincy, on Nov. 29, 1938; arraigned Dec. 12, 1938, and pleaded not guilty; 
April 11, 1939, retracted former plea and pleaded guilty to murder in the second 
degree, which plea was accepted; thereupon sentenced to Reformatory for Women 
for life. 

Walter L. Teachman. 

Indicted in Plymouth County, October, 1939, for the murder of Lewis C Williams, at 
Wareham, on Sept. 27, 1939; arraigned Oct. 9, 1939, and pleaded not guilty; Dec. 
4, 1939, adjudged insane and committed to Bridgewater State Hospital. 

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

Stephen N. Tolentino, alins. 

Indicted in Bristol County, June, 1939, for the murder of Cecelia Tolentino; ar- 
raigned June 14, 1939, and pleaded not guilty; Nov. 23, 1939, retracted former plea 
and pleaded guilty to murder in the second degree, which plea was accepted ; there- 
upon sentenced to State Prison for life. 

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

Foley). 
Louis Assali. 

Indicted April, 1939, for the murder of Nellie Harrington, on March 2, 1939; ar- 
raigned April 11, 1939, and pleaded not guilty; trial May, 1939; during the trial 
retracted former plea and pleaded guilty to manslaughter, which plea was ac- 
cepted; thereupon sentenced to State Prison for not less than eight years and not 
more than fifteen years. 

Samuel Hunter. 

Indicted July, 1939, for the murder of Winnie Rawles, on May 8, 1939; arraigned Aug. 
10, 1939, and pleaded not guilty; trial November, 1939; 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. 

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

Silvio Grande. 

Indicted in Berkshire County, July, 1939, for the murder of Dominic Grande, at North 
Adams, on March 29, 1939; Nov. 27, 1939, adjudged insane and committed to 
Bridgewater State Hospital. 

3. Pending indictments and status: 

Northern District (Middlesex County case: in charge of District Attorney Robert F. 

Bradford). 
William H. Plummer. 

Indicted November, 1939, for the murder of Margareta C. Clish, at Newton, on Oct. 
30, 1939; arraigned Nov. 21, 1939, and pleaded not guilty. 

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

Foley). 
Ferdinand R. Paarand. 

Indicted October, 1939, for the murder of Edna Paarand, on Aug. 21, 1939; arraigned 
Oct. 18, 1939, and pleaded not guilty. 



P.D. 12. 

OPINIONS. 



Sentences — Effect of a Sentence to the State Prison upon an Earlier Sentence 
to the Massachusetts Reformatory. 

Dec. 1, 1938. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — Replying to your letter of recent date, I am of the opinion 
that when a convict who is serving a sentence in the Massachusetts 
Reformatory is convicted of a crime punishable by imprisonment in the 
State Prison, and the court imposes a sentence to the latter institution, 
"to take effect forthwith 'notwithstanding sentence in the Massachusetts 
Reformatory now being served,' " as set forth in your letter, such sen- 
tence to the State Prison in effect brings to an end the earlier sentence 
to the Massachusetts Reformatory, under the provisions of G. L. (Ter. Ed.) 
c. 279, § 28. Said section reads: — 

"If a convict serving a sentence of imprisonment in the Massachusetts 
reformatory is convicted of a crime punishable by imprisonment in the 
state prison or house of correction, the court may impose sentence of 
imprisonment therein and may order it to take effect forthwith, notwith- 
standing the former sentence. The convict shall thereupon he removed 
accordingly, and shall he discharged at the expiration of his sentence thereto." 

I am advised that long-established departmental interpretation by 
the Department of Correction has been in harmony with the opinion 
which I have above expressed. 

Very truly yours, 

Paul A. Dever, Attorney General. 

School System — High School. 

Dec. 2, 1938. 
Hon. James G. Reardon, Commissioner of Education. 

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

"A pupil residing in the town of Berlin, which does not maintain a public 
high school, is attending Atlantic College at South Lancaster, Massachu- 
setts, which school purports to be the equivalent of a public high school. 
Said Atlantic College is directed by a society known as ' The Seventh Day 
Adventists.' 

If the State Department of Education should approve Atlantic College 
as a school which Berlin pupils might attend, under G. L. (Ter. Ed.) 
c. 71, §6 — 

(a) Would the town of Berlin have authority under the law to pay 
transportation of the Berlin pupils to Atlantic College? 

(6) Would the State Department of Education be justified in approving 
for reimbursement the expenditure for transportation?" 

Unless Atlantic College is in fact "a part of the school system" (see 
G. L. [Ter. Ed.] c. 71, § 11) of the town of Berlin, the fact that it "purports 
to be the equivalent of a public high school," as stated in your communica- 
tion, does not make it a high school in such a sense that your department 
could approve it as such under the provisions of G. L. (Ter. Ed.) c. 71, § 6. 



P.D. 12. 9 

or that a town might appropriate money for transportation thereto or be 
reimbursed for the expenditure. In the absence of a statement by you of 
any facts indicating that the said college is a public high school, in the 
sense that it is a part of the school system of Berlin and under the 
authority and superintendence of the authorities of such town, or that it 
is not operated, at least in part, for profit, I answer both your questions in 
the negative. 

I am fully aware of the views expressed in my opinion to you of Decem- 
ber 23, 1936 (Attorney General's Report, 1937, p. 37), but upon the facts 
presented by you in the instant matter, as to which alone I address myself, 
the conclusions to which I have come relative to the instant questions 
are not inharmonious therewith. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Transfer from the Extraordinary Fund. 

Dec. 8, 1938. 
His Excellency Charles F. Hurley, Governor of the Commonwealth. 

Sir : — You have asked my opinion as to whether the Governor and 
Council may lawfully transfer $200 from the extraordinary fund to the 
appropriation of the Special Commission relative to Civil Service Laws, 
Rules and Regulations, Resolves of 1938, chapter 82, in order that said 
Commission may pay the expenses of a proposed trip to Chicago, in connec- 
tion with its work under said resolve, to examine the files at the head- 
quarters of the Civil Service Assemblies of the United States and Canada. 

Said resolve reads : — 

"Resolved, That a special unpaid commission, consisting of one member 
of the senate to be designated by the president thereof, three members of 
the house of representatives to be designated by the speaker thereof and 
three persons to be appointed by the governor, is hereby estabhshed for 
the purpose of investigating the civil service laws of the commonwealth 
and the rules and regulations made thereunder, with a view to the revision 
and codification of said laws, rules and regulations and to the recommending 
of such changes therein and additions thereto as may appear necessary 
or desirable. In making its investigation hereunder, said commission shall 
consider the subject matter of current house documents numbered seven- 
teen hundred and fifteen and seventeen hundred and sixteen. 

Said commission shall be provided with quarters in the state house or 
elsewhere, shall hold such hearings as it may deem expedient, may require 
by summons the attendance and testimony of witnesses and the produc- 
tion of books and papers and may expend for clerical, expert and other 
expenses such sums, not exceeding, in the aggregate, twentj'-five hundred 
dollars, as may hereafter be appropriated. The commission shall report 
to the general court the results of its investigation, and its recommenda- 
tions, if any, together with drafts of legislation necessary to carry its 
recommendations into effect, by filing the same with the clerk of the house 
of representatives on or before the first Wednesday of December in the 
current year." 

In the supplementary appropriation bill, St. 1938, c. 497, item 33v, 
an appropriation for this Commission was made in the following lan- 
guage : — 



10 P.D. 12. 

"For an investigation relative to civil service laws, rules and 
regulations, as authorized by chapter eighty-two of the resolves 
of the present year, a sum not exceeding twenty-five hundred 
dollars $2,500 00" 

It is stated that this appropriation has become exhausted by expendi- 
tures of the Commission. 

Under G. L. (Ter. Ed.) c. 6, § 8, an appropriation has been made "for 
extraordinary expenses not otherwise provided for, which the governor and 
council may deem necessary, and for transfer, upon the recommendation 
of the comptroller, with the approval of the governor and council, to such 
appropriations as have proved insufficient." 

It may well be that the proposed examination is something out of the 
ordinarj^, which would not naturally have been provided for in advance 
by the Legislature, and important to the fulfillment of the Commission's 
task. If the Governor and Council determine it so to be and deem it 
necessary, it could not be said that the allocation of a sum for such purpose 
and its transfer to the Commission's appropriation, in accordance with the 
terms of the said section 6, was otherwise than lawful. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Works — Authority to patrol Streams, under St. 1938, 

c. 506. 

Dec. 14, 1938. 

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

Dear Sir: — Replying to your recent letter, I am of the opinion that 
you may not enter into contracts of employment with persons to patrol 
streams to note conditions "due to the recent flood, which may be the 
cause of further damage," in order to issue warning, as far in advance as 
possible, "of the possibility of such hazards," as outlined in your letter. 

Your authority under the terms of St. 1938, c. 506, is limited to patrol- 
ling streams, if necessary, for the purpose of aiding your department in 
doing efficiently the work in rivers and streams described in section 1 of 
said chapter 506. Providing a system for giving warning in the future of 
flood hazards, even if such hazards be in whole or in part occasioned by 
the past hurricane or floods, is not within the scope of the work author- 
ized by the Legislature to be carried on by your department under said 
chapter 506, 

Very truly yours, 

Paul A. Dever, Attorney General. 

Police Officers — Receipt of Reward. 

Dec. 15, 1938. 

His Excellency Charles F. Hurley, Governor of the Commonwealth. 

Sir: — I am in receipt of the following letter: — 

"His Excellency the Governor requests your opinion as to whether 
G. L. (Ter. Ed.) c. 262, § 50, prohibits police officers, who receive a salary 
or an allowance by the day or hour from the Commonwealth or from a 
county, city or town, from participating in any portion of a reward offered 
by the Governor under the provisions of G. L. (Ter. Ed.) c. 276, § 9. 



P.D. 12. 11 

The services performed by the poUce officers were official services per- 
formed by them in a criminal case." 

I am of the opinion that police officers who receive a salary or an allow- 
ance by the day or hour from the Commonwealth or from a county, city 
or town are not prohibited by the terms of G. L. (Ter. Ed.) c. 262, § 50, 
from receiving any portion of a reward offered by the Governor under 
G. L. (Ter. Ed.) c. 276, § 9, even if the services so performed were official 
services performed by such officers in a criminal case. 

The authority given to the Governor by the Legislature to offer re- 
wards for the apprehension of felons, G. L. (Ter. Ed.) c. 276, § 9, empowers 
him to offer to pay the reward "to any person who, in consequence of 
such offer," complies with the other terms, relative to such apprehension, 
which are contained in the Governor's offer. The provisions of said G. L, 
(Ter. Ed.) c. 262, § 50, disclose that the main purpose of the section is to 
prevent the officers named therein from receiving fees or extra compensa- 
tion for rendering official services ordinarily incident to their regular 
duties. V Op. Atty. Gen. 186, 187. It contains no specific prohibition of 
their acceptance of a "reward" such as is authorized by said chapter 276, 
section 9. A reward is something other than a "fee" or "compensation," 
which last-named emoluments are the ones forbidden bj^ section 50. 

With relation to State officers, the receipt of a "reward" is specifically 
mentioned by name as something which an officer employed in the De- 
partment of Public Safety may not accept. 

It may well be doubted, however, whether the word "reward," even as 
used in said section 3, means a reward offered by the Commonwealth 
through its Chief Executive by authority of the Legislature. It is not 
limited in meaning by the context in which it appears, which includes the 
words "gratuity" and "gift," to a reward offered by a private person. 

The law appears to be to the effect that when a statute authorizes the 
offering of a reward to persons generally by a designated pubUc officer 
and does not specifically exclude from the class of persons who may avail 
themselves of the offer police or other public officers, the public officer 
not limiting the terms of his offer of reward so as to explicitly exclude such 
officers, neither public policy nor an implied legislative exclusion pre- 
cludes police officers from accepting a reward, even when the acts for 
which they are to be rewarded were in the line of duty. United States v. 
Matthews, 173 U. S. 381. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Inspection — Information collected under G. L. {Ter. Ed.) c. 7, § 30. 

Dec. 15, 1938. 

Hon. Patrick J. Moynihax, Chairman, Commission on Administration 

and Finance. 

Dear Sir: — You have asked my opinion as to your duty in permitting 
inspection by a member of the public of the information collected by the 
Division of Personnel and Standardization under G. L. (Ter. Ed.) c. 7, 
§30. 

Said section 30 provides specifically that the said division shall keep a 
record of such information, containing certain designated data, "open to 
public inspection." 



12 P.D. 12. 

By reason of the inclusion in said section 30 by the Legislature of the 
words "open to public inspection" it is your duty to permit any member 
of the public, who makes a request, to make an inspection of said record. 
You may not require that his request be put in writing or that he limit 
himself to such facts or data relative to the record as may be supplied 
him by said division. The right to inspect also carries with it the right 
to copy. 

The applicant's right to inspect cannot be exercised so as to interfere 
unduly with the work of the office, and the applicant must submit to 
such reasonable supervision as will guard the safety of the record and 
secure equal opportunity for all. Except under the most unusual circum- 
stances, the said record should be made available for inspection upon the 
request of anyone during the time when the office is open. Inspection 
and copying by a person would not be held by the courts so to interfere 
with the work of the division's office unless carried on in some most pecul- 
iar fashion. A written request for inspection may not be insisted upon 
as a prerequisite to an inspection. 

These propositions of law were established with a considerable degree 
of certainty by the Supreme Judicial Court in the case of Direct Mail 
Service, Inc. v. Registrar of Motor Vehicles, 296 Mass. 353. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Armory — Nonmilitary Use. 

Dec. 21, 1938. 
Brig. Gen. Charles H. Cole, The Adjutant General. 

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

"Your opinion is requested as to whether this department may grant 
the use of a State armory for a beano game, under the provisions of G. L. 
(Ter. Ed.) c. 33, § 48 (c)." 

The grant of an armory's use for the sole purpose of conducting a beano 
game is not permissible. 

The grant of an armory's use for one of the public purposes of con- 
ducting a meeting to raise funds for the civilian organizations specifically 
mentioned in said section 48 (c), in connection with which a lawfully 
licensed and conducted beano game is carried on, is not unlawful, and 
may be made if the terms and conditions prescribed by the Commander- 
in-Chief are complied with and an application for the use is approved by 
the Adjutant General and the military custodian, and other provisions 
of the applicable statutes are followed. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Call Fir email — Period of Employment. 

Dec. 21, 1938. 

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

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

"Will you kindly give me your opinion as to whether or not you believe 
it is necessarj^ that a man be a permanent call man, etc., for a period of 



P.D. 12. 13 

five years, or whether I am allowed to include the time of temporary or 
provisional employment in considering a request for promotion." 

G. L. (Ter. Ed.) c. 48, § 36, provides that under certain designated 
conditions municipalities may promote to membership in the permanent 
fire force, without civil service examination, "any persons then in the 
call or part call fire department who have served as call men or part 
call men or substitute call men for five or more successive years." 

As the words "who have served as call men . . . for five or more suc- 
cessive years" are used in said section 36 I am of the opinion that it is 
immaterial whether or not during a part of such successive years, while 
they were so serving, the call men in question were "provisional tempo- 
rary" call men or not. The words "call men," "part call men" or "sub- 
stitute call men" as used in said section are broad enough in their scope 
to include anyone actually serving in the capacities mentioned, by proper 
appointment. Actual service, which would presumably include work 
and the acquisition of experience in the duties of the positions mentioned 
for a designated period of successive years, appears to be the essence of 
the legislative requirement for promotion rather than the possession of 
any technical title attached to the position during any part of the five 
successive years. 

As employed by the Legislature in said section 36, in their context the 
words "who have served as call men," etc., are not capable of the same sort 
of construction as was said to be applicable to the words "actually em- 
ployed for at least a year," in Civil Service Rule 27, by an opinion of the 
Attorney General to you dated November 12, 1936 (Attorney General's 
Report, 1936, p. 108). The context in which the latter words occurred 
was different from that in which the former are used in said section 36. 
In that opinion it was stated with relation to said Rule 27 : — 

"The words 'actually employed for at least one year,' as used in the 
rule, are necessarily related to the words immediately before them, 'duly 
certified for permanent employment,' and import permanent employ- 
ment and not employment of a different character." 

In the instant statute, however, no words appear which would import 
that permanent service rather than service of a different character was 
required, and therefore the same limitation upon the general meaning of 
the words of the statute as that placed upon the words of the rule should 
not be adopted. 

The phrase in the said Rule 27, "any person duly certified for perma- 
nent employment and actually employed for at least one year (including 
the time of probationary service)," is not synonymous with that of said 
section 36, "any persons . . . who have served as call men , . . for five 
or more successive years." 

You should, therefore, in my opinion, include the time of provisional 
or temporary employment in computing the statutory period of five suc- 
cessive years in relation to the particular instance referred to in your 
letter, upon the facts stated by you in connection with such instance. 

Very truly yours, 

Paul A. Dever, Attorney General. 



14 P.D. 12. 

Great Ponds — Storage of Logs. 

Dec. 27, 1938. 

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

Dear Sir : — Replying to your letter with relation to the storage of 
hurricane logs in great ponds, in my opinion the view which you express 
in your letter as to the applicable law is correct. 

A boom of logs which is fastened together may be said to come within 
the meaning of the word "structure," as used in G. L. (Ter. Ed.) c. 91, § 13, 
and as to such a structure you have authority under said section to license 
the same in the waters of a great pond. 

Section 19 of said chapter forbids an obstruction or encroachment upon 
the waters of any great pond. Single logs not fastened together into a 
boom, which would have a tendency to drift about the pond and endanger 
the property of many riparian owners or persons properly using such pond, 
may well be said to be an encroachment. 

If it be desired to store logs in great ponds in this fashion, special legisla- 
tion should be sought authorizing such use of these ponds. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Governor and Council — Division of Personnel and Standardization — 
Increases in Salaries — Salary Ranges — Classification. 

Dec. 30, 1938. 

Hon. Patrick J. Moynihan, Chairman, Commission on Administration 

and Finance. 

Dear Sir: — I am in receipt from you of a letter, with an accompany- 
ing communication made to you by the Director of the Division of Per- 
sonnel and Standardization, in which my opinion is requested upon certain 
questions of law relative to the action of the Governor and Council con- 
cerning certain recommendations involving increases of salaries of em- 
ployees of the Department of Public Works. Copies of various letters 
and findings have also been submitted to me with the communication from 
said director. For purposes of reference I set forth one of said letters, 
namely, a letter from the Executive Secretary to the Comptroller, dated 
December 19, 1938, as follows: 

''At a meeting of the Governor and Council held December 16, 1938, 
consideration was given to two letters, dated December 6, 1938, from 
WilHam F. Callahan, Commissioner of Pubhc Works, appealing from 
certain decisions of the Director of Personnel and Standardization, and 
it was voted to sustain the appeal and approve all of the recommendations 
of the Commissioner of Pubhc Works, as follows : — 

A. That the salary range of the Chief Administrative Clerk, Registry of 
Motor Vehicles, be $4,200-$5,100, instead of $3,780-$4,500, effective 
November 16, 1938. 

B. That the salary range of the Department Business Agent of the 
Department of Pubhc Works be S4,200-S5,100, instead of $3,780- 
$4,500, effective November 16, 1938. 

C. That the salary range of the Public Works Department Secretary 
be $3,180-$3,960, instead of $2,940-$3,480, effective November 28, 
1938. 



P.D. 12. 15 

D. That Mary E. McMorrow be reallocated from Head Administrative 
Clerk at $3,060, to a new classification of Chief Administrative Clerk, 
Public Works Department, with salary range $3,180-S3,900, effective 
November 28, 1938, and that said classification be created as of 
November 28, 1938. 

E. That Mary A. McGarry be reallocated from Principal Bookkeeper 
to Head Administrative Clerk at 12,520, effective November 28, 1938. 

F. That Katharine F. Murray be reallocated from Head Clerk to Head 
Administrative Clerk at $2,760, effective November 28, 1938. 

G. That Kathleen R. Adams be reallocated from Principal Clerk to 
Head Clerk at $2,280, effective as of November 28, 1938. 

H. That George T. Linehan be reallocated from Highway Traffic Inspec- 
tor to Senior Highwav Traffic Inspector at $2,220, effective as of 
November 28, 1938. 

I. That Winthrop T. Case and John H. Britt be reallocated from Junior 
Civil Engineers to Assistant Civil Engineers, effective as of November 
30, 1938. 

J. That John F. Casey and Lester J. Ellis be reallocated from Assistant 
Civil Engineers to Senior Civil Engineers, effective as of November 30, 
1938. 

K. That James W. Claflin be reallocated from Junior Engineering Aid 
to Senior Engineering Aid, effective November 30, 1938. 

L. That Martin A. Morrissey be reallocated from Junior Testing Engi- 
neer to Senior Chemist, effective November 29, 1938." 

From your letter and the said communications it appears that various 
recommendations concerning salaries of employees were submitted to the 
said division by the Commissioner of Public Works, and were disapproved 
by the said division, and that thereafter they were reported by the said 
division to the Governor and Council, under the provisions of G. L. 
(Ter. Ed.) c. 30, § 47, which reads: — 

"If the said division does not approve a proposed increase in salary, 
it shall report the recommendation of the department . . . with its own 
recommendation to the governor and council whose decision shall be 
final . . ." 

I. 

Certain of the recommendations which were so submitted by you to the 
Governor and Council, as reported to me in said communication and 
annexed findings, did not contain, as a matter of law, recommendations for 
"a proposed increase in salary," as the quoted words are used in said 
section 47. They were, instead, recommendations for changes in "salary 
ranges" of existing positions, and for the establishment of a "new classifi- 
cation" of a position. 

Although an increase in the salary range of an existing position and the 
creation of a new classification of a position may result in an increase of 
salary to a present or future incumbent of one of such positions, yet a 
recommendation for such new salary range and for such new classification 
is not so necessarily and immediately connected with an increase of salary 
to an employee or employees that it can be said to fall within the phrase 
"recommendations for increases in the salaries of officers and employees," 
as used in said section 47, and consequently does not fall within that class 
of matters mentioned in said section which are to be reported to the 
Governor and Council. 



16 P.D. 12. 

It follows that the Governor and Council have no jurisdiction to review 
and to disapprove the findings of the said division in regard to these 
matters. The authority to "classify" positions and to fix salaries, which 
may include "salary ranges," is vested in the said division alone, and it 
was not the intent of the Legislature, as expressed in the language em- 
ployed by it in G. L. (Ter. Ed.) c. 30, §§ 45-50, that this authority should 
be subject to supervision or modification by the Governor and Council, 
under the procedure outlined in said section 47. If errors are committed 
by the said division in this general field of classification, specification and 
accompanying fixation of salaries in accordance with "classification and 
specification," resort must be had by those aggrieved to the courts for 
correction of such errors, if not corrected upon the appeal of an employee 
under section 49 of said chapter 30. 

It follows from the foregoing that the Governor and Council had no 
jurisdiction to approve the recommendations of the Commissioner of 
Public Works with relation to the matters contained in paragraphs A to D, 
inclusive, as set forth in the letter of December 19, 1938, from the Execu- 
tive Secretary to the Comptroller; that with relation to those matters the 
disapproval given by the said Division of Personnel and Standardization 
must stand; and that the Comptroller should not accept the action of the 
Governor and Council as the basis for approval of pay rolls in these partic- 
ular instances to which I have just referred. 

II. 

All the other recommendations which were referred by the said division 
to the Governor and Council under said G. L. (Ter. Ed.) c. 30, § 47, and 
which the Governor and Council appear to have approved, in effect — 
being the recommendations submitted by the Commissioner of Pubhc 
Works (although the same were disapproved by the said division) and 
referred to in paragraphs E to L, inclusive, of the said letter of the Executive 
Secretary of December 19th — were, in my opinion, properly submitted 
to the Governor and Council under said section 47, and were such as they 
might render a final decision upon. 

It follows that the final decisions embodied in said paragraphs E to L, 
inclusive, are effective, and the Comptroller should accept the action of 
the Governor and Council therein expressed as the basis for approval of 
the pay roll within the Department of Public Works as final, irrespective 
of other considerations. 

All these decisions relate to recommendations which directly increase 
the salaries of particularly designated present employees. The fact that 
in each instance such increase is affected by an accompanying promotion 
is immaterial, inasmuch as the promotion is to a position already estab- 
lished and classified, with an existing salary range set up by the said 
division. So that in each instance the recommendation and consequent 
decision are, in effect, for an increase of salary within already established 
salary rates. Though the word "reallocation" is used in the said decision 
and in the recommendations, the process indicated to enable the increase 
in salary to be given is in reality a promotion. The word "promotion" 
is defined in said section 45 as, — "A change from the duties of one grade 
to the duties of a higher grade, which shall involve a change in salary to the 
rates of the higher grade." 

Since the original recommendations in the instances referred to in said 
findings E to L, inclusive, were for salary increases, they were properly 



P.D. 12. 17 

laid by the division, with its own adverse recommendations, before the 
Governor and Council for the latter's "final" decision upon each. The 
Governor and Council had jurisdiction to determine which recommenda- 
tions they would adopt or approve and, in so doing, it was their province 
to pass upon all factual matters necessary to a decision. The Attorney 
General does not pass upon questions of fact. It is not within the scope 
of authority of other executive or administrative officers to pass upon or 
attempt to review the final decision of the Governor and Council as to 
factual questions which they must necessarily have passed upon in arriving 
at their final decisions in these matters. A standard rate of salary or a 
salary range had previously been established by the division as to each of 
these positions to which the respective promotions were made, so that 
it cannot be said that the Governor and Council failed to observe the 
statutory provision of law contained in said section 47, that — 

"Increases in salaries granted under this section shall conform to such 
standard rates as may be established by rule or regulation in accordance 
with the preceding section." 

Whether or not an appropriation sufficient to cover the desired increases 
had been granted by the General Court, in accordance with estimates for 
the budget filed as required by law, was a matter which, under the provi- 
sions of said section 47, required a determination in the affirmative by the 
Governor and Council as a preliminary to a final decision in favor of the 
department's recommendations. 

The fact that they have so decided in favor of the department's recom- 
mendations imports a preliminary finding that such appropriation had 
been made. 

Whether such an appropriation had in fact been made appears to have 
been a disputed question as between the department and the division, 
judging from the letters accompanying the communication submitted to 
me. The determination of this question was within the province of the 
Governor and Council in making their final decision. It is not now subject 
to further review by other executive or administrative officials. It cannot 
be said to be a necessary conclusion as a matter of law that "an appropria- 
tion sufficient to cover" increases in certain salaries has not "been granted 
by the General Court in accordance with estimates for the budget filed as 
required by law" merely because such increases have not been specified 
with particular detail in the budget estimates. It does not appear that 
any other prohibition contained in said section 47 was violated b}- the 
final decisions of the Governor and Council in regard to the said matters. 

Whether or not rules and regulations of the IDivision of Personnel and 
Standardization had been complied with by the department in filing its 
original recommendations was properly a matter for consideration bj" the 
Governor and Council, and the weight to be attached to any violation 
thereof, if any existed, was likewise for their consideration in reviewing 
the said matters under said section 47, but their determinations or de- 
cisions in this respect are not subject to attack or review by other execu- 
tive or administrative officials. The entire subject matter in regard to 
each of these separate increases was before the Governor and Council, 
and every presumption exists in favor of the correctness of their final 
decisions and of all preliminary determinations involved therein so far 
as all other executive and administrative officers are concerned; nor do 
the rules and regulations made by the director of the said di\'ision and 



18 P.D. 12. 

approved by the Governor and Council bind the Governor and Council 
so as to preclude them in using an untrammeled judgment in making 
their required final decision. The Governor and Council were not obliged 
to adopt the reasons set forth by the said division for its recommendations, 
nor the recommendations themselves. They had, instead, the duty of 
determining the questions at issue relative to the proposed increases of 
salary in the light of all the known facts, subject to certain statutory 
limitations to which I have referred. The statute provides that the de- 
cision of the Governor and Council shall be "final." The decisions of 
the Governor and Council made in regard to the proposed increases in 
salary, which I have already stated were properly before them and within 
their jurisdiction to grant — namely, those mentioned in the aforesaid 
paragraphs E to L — are binding and conclusive upon executive and ad- 
ministrative officers of the Commonwealth, including the Comptroller 
and other fiscal officers, and should be recognized and used for the basis 
of the salaries of the persons mentioned in said paragraphs, and should 
be reported to the Commissioner of Civil Service. 

Inasmuch as the entire matter involving each of the salaries mentioned 
in the aforesaid paragraphs E to L was before the Governor and Council 
for their final decisions, and as their decisions are in the nature of approvals 
of the recommendations of the Department of Public Works, such recom- 
mendations having been made before the close of the fiscal year, namely, 
on November 28th, it was within the scope of their authority to decide, 
as they have done, that their final decisions should be effective as of the 
date of the making of the recommendations, on November 28th, no pro- 
vision of the applicable statute prohibiting them from so doing. Their 
decisions on these respective matters are, accordingly, effective as of 
November 28, 1938, and the increases in salary, consequently, are not, 
by reason of the time when made, prohibited by the terms of G. L. (Ter. 
Ed.) c. 29, §§ 12 and 27. 

The foregoing adequately answers the questions raised by your letter 
and the communication of the Director of Personnel and Standardization. 
The decisions of the Governor and Council are to be accepted as final 
by the said division in relation to the said paragraphs E to L, as I have 
stated, irrespective of any acts or interpretations of rules or law made 
by the said division prior to such decisions. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Compatible Positions. 

Jan. 10, 1939. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir : — I am in receipt from you of a letter which reads, in part, 
as follows : — 

"I have upon my desk, awaiting my signature as Secretary of the Com- 
monwealth, and awaiting issuance, a commission to Francis E. Kelly, of 
Boston, as a member of the Fall River Board of Finance. It appears 
that the appointment was made by His Excellency the Governor, with the 
advice and consent of the Council, on January 4, 1939, and that the oath 
of office was taken and subscribed to before His Excellency on January 5, 
1939. The said Francis E. Kelly was, at the time of such appointment 



P.D. 12. 19 

and qualification, His Honor the Lieutenant-Governor of the Common- 
wealth, and I am informed by the Executive Secretary of the Council 
that prior to the expiration of his term of office he had not resigned there- 
from. . . . 

I feel constrained therefore, as the question raised may relate to matters 
of large financial importance to the city of Fall River, to respectfully re- 
quest your opinion whether I can certify that the said Francis E. Kelly 
is legally qualified to act as a member of the Fall River Board of Finance." 

I am of the opinion that you may certify that the said Francis E. Kelly 
is legally qualified to act as a member of the Fall River Board of Finance. 

The apphcable provisions of the Constitution (Mass. Const., pt. 2d, 
c. VI, art. II) read as follows: — 

"No governor, lieutenant-governor, or judge of the supreme judicial 
court, shall hold any other office or place, under the authority of this 
commonwealth, except such as by this constitution they are admitted to 
hold, saving that the judges of the said court may hold the offices of jus- 
tices of the peace through the state; nor shall they hold any other place 
or office, or receive any pension or salary from any other state or govern- 
ment or power whatever." 

It is not necessary to a determination of your question to decide whether 
or not a position upon the Board of Finance of the City of Fall River, 
created by St. 1931, c. 44, is "an office or place under the authority of 
this commo7nvealth,'' as the quoted words are used in said article II of 
chapter VI of the Constitution, nor to affirm that the prohibition of said 
article II is not hmited to places under the authorit}^ of the Common- 
wealth, but, by virtue of the phraseology, the last clause of the above- 
quoted paragraph of said article II includes "all places, at least of a pub- 
Uc nature," as was stated by one of my predecessors in office (V Op. Atty. 
Gen. 20, 23), so as to embrace within its scope an office held under the 
authority of a municipality. For whatever view is adopted as to these 
matters, it appears to have been made plain by the decision of the Supreme 
Judicial Court in Commonwealth v. Hawkes, 123 Mass. 525 (although the 
same relates specifically to a judge), that none of the provisions embodied 
in said article II make the holder of the office of lieutenant-governor inca- 
pable of being elected or appointed to another office, but that they only 
prohibit his holding of two offices; that when he accepts a second office 
the rule of the common law is applicable; and that the acceptance of 
the second operates so as to create a vacancy in the first office. 

Accordingly, it was stated in the said opinion of a former Attorney 
General (V Op. Atty. Gen. 20, 23) "that while the Governor, Lieutenant- 
Governor and justices of the Supreme Judicial Court might lawfull}- hold 
a seat in the" constitutional "convention if elected thereto, the accept- 
ance of such seat would operate as a resignation of their office." 

It follows, then, upon the facts of which you have advised me in your 
letter, that the then Lieutenant-Governor was not ineligible for the office 
of a member of the Fall River Board of Finance; that upon the accept- 
ance of such office, as evidenced by his taking of the qualifying oath for 
the same, he ceased to hold his office as Lieutenant-Governor; and that 
you may properly attest his commission as a member of said board and 
may certify that he is legally quahfied to act as such member. 

Very truly yours, 

Paul A. Dever, Attorney General. 



20 PD- 12. 

Municipalities — Relief — Reimbursement hy the Commonwealth. 

Jan. 10, 1939. 
Hon. Walter V. McCarthy, Commissioner of Public Welfare. 

Dear Sir: — You have advised me that you have dechned to reim- 
burse the town of Winchester for an expenditure under G. L. (Ter. Ed.) 
c. 122, § 17, for hospital treatment of a person having no settlement in 
the Commonwealth, and that an application for a reconsideration is 
before you. You also advise me that said person, while being treated in 
the Winchester Hospital, was under arrest and in custody of the police 
of said town. 

Assuming that said person was a person in need of immediate relief 
by medical or surgical treatment in a hospital, and a member of that 
class formerly described as "paupers," in our statutes applicable to this 
general subject, it does not follow as a matter of law that the town fur- 
nishing such relief is entitled to reimbursement from the Commonwealth 
if such relief was given while said person was under arrest and virtually 
a prisoner by reason of his custody by the police. 

Indeed, it has been explicitly laid down as a settled proposition of law 
by a former Attorney General, in an opinion given to a former super- 
intendent of the old division of State Adult Poor, under date of Janu- 
ary 13, 1903 (II Op. Atty. Gen. 408), that reimbursement from the Com- 
monwealth could not be required by a county for such relief given in a 
hospital to one in like case with the person above referred to, who was 
admitted to the hospital while under arrest and continued in the custody 
of county authorities during his period of treatment in the hospital. 
With this opinion I concur, and its general principle is equally applicable 
when reimbursement is sought by a town or city as when sought by a 
county. This principle has been followed for many years, and the fore- 
going opinion was made the basis for an opinion of the same general tenor, 
relative to reimbursement of cities, by the late Judge Dubuque, on Feb- 
ruary 25, 1907, when serving as city solicitor of Fall River. There has 
been no change in the applicable statutes during the intervening years 
which would invalidate the principle heretofore laid down. 

It was the intent of the Legislature, as expressed in applicable stat- 
utes, that the expense of the care of prisoners, of whatever financial status 
or settlement, should be treated as part of the expenses of the poHce 
administration of the authorities having them in custody by reason of 
arrest, — in this instance the police officers of a town. Provision is made 
in the statutes for the maintenance and support of prisoners confined to 
a lockup (G. L. [Ter. Ed.] c. 276, §§ 33-36), with reimbursement to the 
lockup keeper for the county; so that during the period of detention on 
criminal charges it does not appear to have been the intent of the Legis- 
lature that any part of the expense of maintaining and supporting such 
prisoners, either as an aid to the institution where the prisoners are held 
or as aid furnished under the provisions of law relative to the support 
of needy persons, should be imposed upon the Commonwealth. Expense 
with relation to such persons necessarily incurred outside a lockup, as 
in a hospital, when still in custody, falls within the general scope of the 
expense of administering the police system of the town in question, which 
is not to be borne by the Commonwealth. 

Very truly yours, 

Paul A. Dever, Attorney General. 



p. D. 12. 21 

State and Military Aid — Eligibility — Honorable Discharge from War 

Service. 

Jan. 16, 1939. 

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

Dear Sir: — -Acknowledgment is made of the receipt of your letter 
requesting an opinion as to the eligibility of a certain veteran for the 
benefits of State and military aid and soldiers' relief under the circum- 
stances therein recited. 

One of the requisites of such eligibihty is an honorable discharge from 
war service. The applicant in question was "discharged October 31, 
1918, under honorable conditions, on account of misconduct and conduct 
unbecoming an officer," he having served as a warrant boatswain (prov.) 
in the United States Naval Reserve Force. 

According to the records of the Bureau of Navigation, as set forth in 
a letter dated November 3, 1938, from the Chief of Bureau to the Adju- 
tant General of the Commonwealth, a copy of which is attached to the 
certification of record of said veteran, dated November 7, 1938, no court 
martial proceedings were involved in the veteran's separation from the 
service, and he was certified for adjusted compensation. 

An essential for entitlement to adjusted compensation is that the vet- 
eran shall have been honorably discharged, within the meaning of the 
World War Adjusted Compensation Act, from war service. 

The official certifying authority (in this instance the Navy Depart- 
ment) has determined that for the purposes of adjusted compensation a 
discharge "under honorable conditions" is the equivalent of an honor- 
able discharge. It further appears, from the original letter of W. B. 
Woodson, Judge Advocate General of the Navy, dated January 9, 1939, 
that "applications for adjusted compensation certificates must be con- 
sidei-ed upon the facts in each case." 

The question here involved is whether the discharge "under honorable 
conditions" meets the Massachusetts statutory requirement of an honor- 
able discharge. In this respect, eUgibility for the benefits hereinbefore 
referred to is predicated upon the same basis as eUgibifity for adjusted 
compensation, for which the veteran has been certified. 

I am of the opinion that the veteran in question, if otherwise qualified, 
is ehgible for the benefits provided by G. L. (Ter. Ed.) c. 115, §§ 6, 10 
and 17, such ruling relating solely to this case. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Treasurer and Receiver General — Receipt of Gift on Behalf of the 
Commonwealth. 

Jan. 17, 1939. 

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

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

"Enclosed herewith is copy of an indenture of trust between John C. 
Robinson and the Boston Safe Deposit and Trust Company, together 
with a copy of a letter from the Commissioner of Conservation under 
date of January 7, 1939. 



22 P.D. 12. 

Will you kindly advise if, in your opinion, the State Treasurer can 
accept moneys turned over to him under the first and second clauses of 
the indenture, and, if so, under whose direction payments for any money 
received under the second clause shall be made." 

The second paragraph of the indenture of trust which you have laid 
before me recites : — 

"Whereas said John C. Robinson has given or proposes to give to 
the Commonwealth of Massachusetts, acting through the Depart- 
ment OF Conservation, lands in West Springfield, Westfield and 
Agawam in said Commonwealth, to be used as a State park and to be 
known as Robinson State Park; and 

Whereas it may be advisable to acquire other lands or parcels or strips 
of land for said State park either by purchase or exchange or in both of 
said ways, and funds may become necessary to enable such acquisition." 

The deed then recites the assignment of certain property to a trustee, 
who is to hold it upon the following trusts: — 

"First: During the lifetime of said John C. Robinson and of his son, 
Richard M. Robinson, and that of the survivor of them, except as herein- 
after provided, to accumulate the income and add it to the principal, and 
upon the death of the survivor all of the trust property at that time held 
hereunder, including all accumulated, collected or accrued income, shall 
be paid over free and discharged of this trust to the Commonwealth of 
Massachusetts to be used for the benefit of the Robinson State Park 
in such way and manner as the Department of Conservation or its 
successors shall determine. The receipt of the Treasurer and Receiver 
General of said Commonw^ealth or his successor or successors shall be 
a full discharge of the Trustee hereunder. 

Second: During the lifetime of said John C. Robinson and of said 
Richard M. Robinson and of the survivor of them, the Trustee shall 
pay over to the Commonwealth of Massachusetts such sum or sums 
out of the trust property to be used for the benefit of Robinson State 
Park as said John C. Robinson during his fife or said Richard M. Rob- 
inson after the death of said John C. Robinson shall in writing direct 
the Trustee so to pay. Such written direction shall be a full warrant of 
the Trustee for any payment so directed, and the receipt of the Treasurer 
and Receiver General of said Commonwealth shall be a full discharge 
of the Trustee for the sums so paid to the Commonwealth of Massa- 
chusetts in accordance with any such written direction." 

Obviously, the intent of the creator of the trust was ultimately to 
make a gift or gifts, to be accepted on behalf of the Commonwealth and 
used by the Commissioner of Conservation, in a fiduciar}^ capacity, for 
the purposes of G. L. (Ter. Ed.) c. 132A, § 1, with special application to 
the particularly designated State park. 

Although no special provision of the statutes authorizes the State 
Treasurer himself to accept directly from the donor, on behalf of the Com- 
monwealth, gifts for the purposes of said G. L. (Ter. Ed.) c. 132A, § 1, 
nevertheless, by G. L. (Ter. Ed.) c. 10, § 16, he is authorized to hold, in 
the name of the Commonwealth, money received from the Conunissioner 
of Conservation under section 1 of said chapter 132A, and to disburse 
the same on the order of the said Commissioner, and, by said section 1 
of chapter 132A, the said Commissioner is authorized "to accept in trust," 



P.D. 12. 23 

with the approval of the Governor and Council, gifts to be used for the 
purposes indicated in said section 1, and to transfer the same to the State 
Treasurer, who shall administer them under said section 16 of chapter 10. 

Inasmuch as the Commissioner of Conservation, under the terms of 
this indenture, is ultimately to become the working trustee of the gift 
or gifts, on behalf of the Commonwealth, it would seem to be of no im- 
portance whether the gift or gifts be placed directly with the State Treas- 
urer or placed with the said Commissioner, who would immediately be 
required, under the provisions of the statute, to deposit them with the 
State Treasurer, who would thereafter disburse them on the Commis- 
sioner's order. 

As the statute requires that the Commissioner may accept such a gift 
only with the approval of the Governor and Council, it would seem essen- 
tial that he should presently procure such approval of his acceptance in 
trust, on behalf of the Commonwealth, of the gift or gifts to be forth- 
coming under clauses 1 and 2 of the indenture of trust. When such ap- 
proval has been given, the State Treasurer may lawfully receive the gift 
or gifts direct from the trustee, under the indenture, and hold them sub- 
ject to the order of the said Commissioner, precisely as if he had received 
them by direct transfer from the said Commissioner. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Utilities — 'Authority to enter a Supplemental Order 
Relative to Maturity and Interest Rate of Bonds of a Gas Company. 

Jan. 17, 1939. 

Hon. Franx'is M. McKeown, Chairman, Department of Public Utilities. 

Dear Sir : — You have asked my opinion, in connection with a pro- 
posed change in the interest rate and maturity of a certain issue of bonds, 
approved by your department on July 23, 1935, and thereafter issued, upon 
the following question : — 

"Has the department, under G. L. (Ter. Ed.) c. 164, §§ 13 and 14, 
the power to enter a supplemental or amending order modifying the 
terms of maturity and interest stated in the original order, in conformity 
with the request of the company as set forth in this letter?" 



I answer your question in the negative. 
Relative to the facts involved you advise me: — 



"The Worcester Gas Light Company issued, under the approval of the 
department dated July 23, 1935, $1,000,000, principal amount, first mort- 
gage bonds maturing in 1965, bearing interest at 4 per cent per annum 
(see D. P. U. 4975). The company informs us that, owing to the favor- 
able condition of the investment market, arrangements may be made to 
reduce the interest rate to 3^ per cent if the maturity is reduced to fifteen 
years. The present holder of the security is willing to waive the reduc- 
tion of the interest rate and the change in maturity. The public interest 
in the matter is in the saving of $5,000 annually in interest charges and 
the consequent lowering of operating costs. The company wishes to avoid 
the expense of calling the issue, paying a premium, registering, advertis- 
ing and other expenses of a new issue, which would amount to quite a 
substantial sum besides the necessary time needed to perfect all these 



24 P.D. 12. 

requirements. It has also stated that the delay may result in loss of this 
advantage to the company. It is to be observed that no change is to be 
made in the amount of the security, and that under our original order 
the bonds are now callable on or before July 1, 1940, at not more than 5 
per cent premium, and the interest rate is stated as 'not exceeding 4 per 
cent.' 

The company informs us that it does not intend to issue a new obliga- 
tion, but to stamp the original security according to the reduced interest 
charges and new maturity date." 

Without passing upon the question of whether the course proposed to 
be adopted with relation to the outstanding bonds will result in a new 
issue, and assuming that you have the power to make correcting or per- 
fecting supplementary orders or amendments at a proper time to your 
original order, so as to make plain its true intent as made, the change 
which it is now proposed you should make in your original order, under 
the guise of a supplemental order or amendment, more than three years 
after its adoption, and after the issue of the bonds, is of such a character 
as to be entirely outside the scope of a supplement or amendment to the 
original order, and as not to fall within your implied authority to supple- 
ment or amend such order so as to perfect it. Such supplement or amend- 
ment as it is proposed that you should now make is such as would pur- 
port to indicate that the intent of your original order was an approval 
of a bond issue having certain factual characteristics which in truth such 
issue did not then possess. 

Your original order contained an approval of an issue having then cer- 
tain ascertained facts as to its nature, which were set forth by you. To 
cause your order of 1935 to now read, under the guise of an amendment 
or supplement, so as to appear to include as of 1935 an approval of an 
issue having different facts as to its nature not existing in 1935, is not 
to amend or supplement the original order but to attempt to make, years 
afterward, a new and different order. 

In this connection a "supplemental order" has no other or essentially 
different function than that of an amendment or "amending order." 

Your authority to proceed in the proposed manner is not dependent 
upon the advantage or disadvantage to the public interest of the sug- 
gested changes in the issue to be worked by agreement of the interested 
parties. 

After disposition of an approved issue of bonds has been made under 
the provisions of the applicable section of G. L. (Ter. Ed.) c. 164, there 
is no specific authority vested in your Commission, nor any implied au- 
thority, to change the form of approval already given as to the terms of 
maturity and interest, under the form of a supplementary or amending 
order, which amending order must of necessity relate to terms not in the 
contemplation of the approving body when the original order of approval 
was passed. 

Very truly j^ours, 

Paul A. Dever, Attorney General. 



P.D. 12. 25 

Governor — Power of A ppointment — Trustees of the Eastern Massachusetts 
Street Railway Company. 

Jan. 18, 1939. 

His Excellency Leverett Saltonstall, Governor of the Commonwealth. 

Sir: — You have requested my opinion as to whether the reappoint- 
ments on November 16, 1938, by the then Governor, His Excellency 
Charles F. Hurley, of Edmond P. Talbot and Arthur G. Wadleigh as 
trustees of the Eastern Massachusetts Street Railway Company, under 
St. 1938, c. 173, "An Act extending the period of public control and manage- 
ment of the Eastern Massachusetts Street Railway Company," were 
valid. 

The question arises from the fact that the new term of the said trustees, 
under the statute, did not begin until January 15, 1939. 

The general rule is that an officer clothed with power of appointment 
to a public office has no right to forestall the rights and prerogatives of 
a successor by making a prospective appointment to fill an office the 
term of which cannot begin until his own term and power to appoint have 
expired. Pattangall v. Gilman, 115 Me. 344; Towne v. Porter, 128 App. 
Div. (N. Y.) 717; State v. Cowen, 96 Ohio St. 277; Oherhaus v. State, 
173 Ala. 483; 46 C. J., p. 952, tit. Officers, § 64. 

This established rule of the common law, however, does not prevent the 
Legislature from creating offices and providing for appointments thereto 
by the appointing authority, although the term of office does not begin 
until after the expiration of his term. The question, therefore, is whether 
St. 1938, c. 173, under which your predecessor assumed to act, gave him 
authority to make the appointments. That act provides, in substance, 
that upon the termination on January 15, 1939, of the five-year period of 
management and control by trustees of the Eastern Massachusetts Street 
Railway Company under St. 1933, c. 108, the public management and 
control by trustees shall be extended, subject to the provisions of St. 1928, 
c. 298, for a period of five years from said date. Section 2 of the act then 
provides : — 

"Upon the fifing with the state secretary of a certified copy of the vote 
of acceptance provided for in section four hereof, trustees shall be ap- 
pointed and confirmed as provided in section two of said chapter two 
hundred and ninety-eight, with the powers, duties and responsibilities 
set forth in said chapter, for terms of five years from the fifteenth day of 
Januar}', nineteen hundred and thirty-nine. If upon said date trustees 
have not been appointed and confirmed as aforesaid, the trustees who 
shall hold office on the fourteenth day of said January, under the provi- 
sions of said chapter one hundred and eight of the acts of nineteen hundred 
and thirty-three, shall be trustees under the provisions of this act until 
trustees shall have been appointed and confirmed under the provisions 
hereof. The trustees appointed or existing under the provisions of this 
act shall, on said fifteenth day of January, nineteen hundred and thirty- 
nine, assume the management and control of the company and, subject 
to the provisions of said chapter two hundred and ninety-eight and of this 
act, shall continue to exercise said management and control during said 
period of five years." 

Section 4 provides that the act shall take effect as of January 15, 1939, 
except for the purpose of its acceptance as thereinafter provided and for 



26 P.D. 12. 

the purpose of appointing trustees thereunder, upon its acceptance by the 
company, given by a vote of the holders of not less than a majority of all 
the stock of the company, a copy of which vote shall be filed with the 
State Secretary, and the act shall be void unless a certified copy of the 
vote is filed on or before November 1, 1938. 

Reverting to St, 1928, c. 298, "An Act relative to the Eastern Massachu- 
setts Street Railway Company," we find similar provisions, both for the 
filing with the State Secretary of a copy of the vote of acceptance and 
for the appointment by the Governor, with the advice and consent of the 
Council, of two persons to serve as trustees for terms of five years from 
January 15, 1929. In the next extension, St. 1933, c. 108, "An Act ex- 
tending the period of public control and management of the Eastern 
Massachusetts Street Railway Company," the same provisions are found 
for the filing with the State Secretary of a copy of the vote of acceptance 
and the appointment and confirmation of trustees for terms of five years 
from January 15, 1934. 

The records of the State Secretary disclose that the 1928 statute was 
accepted by vote of the company, a copy of which was filed with the 
State Secretary on September 12, 1928, following which His Excellency 
Alvan T. Fuller, on December 26, 1928, by and with the consent of the 
Council, appointed Arthur G. Wadleigh and Fred J. Crowley for five-year 
terms, to begin Januar}^ 15, 1929. 

The 1933 statute was accepted by vote of the company, a copy of which 
was filed with the State Secretary on June 14, 1933. His Excellency 
Joseph B. Ely failed to make appointments under this act until Febru- 
ary 28, 1934, when he appointed Arthur G. Wadleigh and Edmond P. 
Talbot to fill the unexpired balance of the terms commencing January 15, 
1934. 

The statute of 1938 was accepted by vote of the company, a copy of 
which was filed with the State Secretary on June 10, 1938, following which 
His Excellency Charles F. Hurley, on November 16, 1938, by and with the 
consent of the Council, reappointed Arthur G. Wadleigh and Edmond 
P. Talbot to succeed themselves for the five-year term commencing 
January 15, 1939. 

In my opinion, St. 1938, c. 173, clearly intends that the appointment 
for the term beginning on the fifteenth of the following January shall be 
made by the Governor, with the advice and consent of the Council, "upon 
the fifing with the state secretary of a certified copy of the vote of accept- 
ance." That vote of acceptance having been filed on June 10, 1938, it was 
then incumbent upon the Governor to make the appointments. 

My opinion is reinforced by the interpretation placed upon the 1928 act 
by His Excellency Governor Fuller and the Executive Council in making 
appointments on December 26, 1928, to fill vacancies beginning the fol- 
lowing January 15th, which fell within the term of His Excellency 
Governor Allen. 

I therefore have to advise you that, in my opinion, the reappointments 
of Arthur G. Wadleigh and Edmond P. Talbot were in accordance with 
the provisions of the statute, and valid. 

Very truly yours, 

Paul A. Dever, Attorney General. 



! 



P.D. 12. 27 

Civil Service — Commissioner — Board — Supervision of Examination. 

Jan. 18, 1939. 

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

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

"Certain men took a noncompetitive examination for positions in the 
Unemployment Compensation Commission. They obtained passing marks 
in the practical questions, but were failed by the e.xaminers because they 
did not, in the opinion of the examiners, meet the Federal requirements of 
education and experience for said positions. 

Under the Civil Service Law (G. L. [Ter. Ed.] c. 13, § 6) the Board is 
given authority to appoint examiners. The examiners who marked these 
papers, however, are permanent employees in this office, appointed by 
the Commissioner under section 3 of said chapter 13. 

On the above facts, I respectfully request your official opinion as to 
whether I, as Commissioner, have any authority under the law to revise 
these examination papers and, if in my opinion the applicants are quali- 
fied, to pass them; or does this come solely within the jurisdiction of the 
Board?" 

It is provided by G. L. (Ter. Ed.) c. 13, §§ 1-4 and 6, as follows: — 

"Section 1. There shall be a department of civil service and regis- 
tration, which shall consist of a division of civil service and a division of 
registration. The commissioner of civil service and the director of regis- 
tration shall act as a board in all matters affecting the department as a 
whole. 

Section 2. The division of civil service shall be under the supervision 
and control of a commissioner of civil service, who shall be the executive 
and administrative head of the division, and two associate commissioners. 
Upon the expiration of the term of office of a commissioner or an associate 
commissioner, his successor shall be appointed by the governor, with the 
advice and consent of the council, for three years. The commissioner 
shall receive such salary, not exceeding five thousand dollars, and the 
associate commissioners such salary, not exceeding two thousand dollars, 
as the governor and council may determine. The associate commissioners 
shall not be of the same political party. 

Section 3. The commissioner may appoint and remove such officers 
and employees as the work of the division of civil service may require. 
He may expend for such compensation, and for necessary traveling and 
other expenses for himself, the associate commissioners and employees 
of the division whose duties require them to travel, such amounts as are 
annually appropriated therefor. 

Section 4. The commissioner and associate commissioners shall con- 
stitute a board which may appoint and remove a deputy commissioner 
of the division, determine his powers and duties, and, subject to the ap- 
proval of the governor and council, fix his compensation. The board may 
authorize the commissioner to organize the division into subdivisions 
and to assign officers and employees of the division thereto. Meetings 
of the board shall be held at least once a month at such times as it may 
by rule determine, and when requested by any member thereof. 

Section 6. The board may designate persons in the official service 
of the commonwealth or of any city, or of any town where chapter thirty- 



28 P.D. 12. 

one is in force, who shall, with the consent of the head of the department 
or office in which any such person serves, act as examiners of applicants 
for any public employment, but no person shall serve as such examiner 
when any relative or connection by marriage, within the degree of first 
cousin, is an applicant." 

It follows that you, as Commissioner of Civil Service, are vested, as 
executive and administrative head of the division, with the direct and 
immediate supervision and control of the same; and this includes direct 
and immediate supervision and control, as to the proper performance of 
the duties with which they are entrusted, of the employees of the division, 
among whom are the examiners appointed by you under said section 4 
or designated by the board, referred to in said section 4, under said sec- 
tion 6. Such power of supervision and control of examiners is vested in 
the first instance solely in you. The use of said power may include such 
direct supervision and control by you over the work of the examiners 
as you have indicated in your letter that you have exercised. 

Such supervision and control are only to be exercised indirectly by the 
"board" in so far as it may necessarily be connected with the hearing and 
decision of appeals taken by an applicant, an eligible person or an ap- 
pointee from a decision of the Commissioner, in accordance with the ap- 
pellate jurisdiction vested in the board by G. L. (Ter. Ed.) c. 31, § 2. 

In this connection it is to be noted that G. L. (Ter. Ed.) c. 31, § 10, 
provides, in part: — "Examinations shall be conducted under the direc- 
tion of the commissioner." 

The conduct of the examinations includes the function of marking them, 
— done, I assume, in the first instance by the examiners, whose work in 
this particular as in all others is, as I have stated, subject to the super- 
vision and control of the Commissioner. The authority given to the 
"board" by the last sentence of this section in these words, "The board 
shall determine the scope and weight of examinations," does not relate 
to supervision and control of the examiners in marking the examination 
papers nor to the marks as such, but rather to a determination as to the 
character of the various examinations which are to be held and the im- 
portance which is to be attached to them or to their different parts in 
relation to other required qualifications. The board's authority in this 
respect has been already exercised to some extent in the formation, under 
the title "Qualifications," of Rules 5-7 of the Civil Service Rules, made 
by the board and approved by the Governor and Council. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Treasurer and Receiver General — Premium on Account of Sale of Bonds 

under St. 1938, c. 501. 

Jan. 25, 1939. 

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

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

"G. L. (Ter. Ed.) c. 29, § 52, reads as follows: — 

' Any premium received on the sale of bonds or scrip shall be applied to 
the payment of the principal of the first bonds which mature.' 

In November, 1938, this department sold $5,000,000 Metropolitan 
Additional Water Loan bonds, under St. 1927, c. 321, and St. 1938, c. 501. 



P.D. 12. 29 

Section lA of said chapter 501 reads as follows: — 

'Bonds of the commonwealth authorized by chapter three hundred 
and twenty-one of the acts of nineteen hundred and twenty-seven and 
issued after the effective date of this act and prior to November thirtieth^ 
nineteen himdred and forty-one, shall be issued upon the serial payment 
plan in such amounts and at such times as the state treasurer shall deter- 
mine, with the approval of the governor and council, to be for the best 
interests of the commonwealth; provided, that no portion of the princi- 
pal of any such bonds so issued shall be payable earlier than five years 
from the date of issue thereof, any provision of law to the contrary not- 
withstanding.' 

The bonds so issued were made payable $200,000 each year July 1, 
1944, to July 1, 1968, inclusive. 

Will you please advise me whether the premium received on account of 
the sale of said bonds, amounting to $82,950, should be used to reduce 
the assessment on the cities and towns for maturing serial bonds of the 
Metropolitan Water District to be made in 1944, or to the reduction of 
the assessment to be made in 1939 on account of maturities of bonds 
heretofore issued." 

I am of the opinion that the premium received on account of the sale 
of bonds falling within the scope of said St. 1938, c. 501, § lA, should be 
used to reduce the assessment to be made in 1939 on account of maturities 
of bonds authorized, like the first-described bonds, by the terms of St. 
1927, c. 321, and should not be held and applied to the reduction of the 
assessments for such first-described bonds not maturing till 1944. 

The language employed by the Legislature in G. L. (Ter. Ed.) c. 29, 
§ 52, which you have quoted, cannot fairly be interpreted so as to author- 
ize the application of the premium of a certain part of a total authorized 
issue to the payment of the first bonds of that particular part of the 
whole issue, to the exclusion of other bonds of the same general issue 
which mature earlier. It cannot reasonably be gathered from the provi- 
sions of said section 52 that the General Court intended to differentiate 
between various portions of an authorized issue of bonds in such a manner 
as is suggested by your communication. All the bonds of which you 
write are issued under the same basic authority, St. 1927, c. 321, § 27, 
and for the purposes of section 52 are to be treated as if of the same 
issue. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Racing Commission — Revocation of License — Grant of License — 
Hearing — Unfinished Business — Dog Racing Meetings at Two 
Tracks in the Same County. 

Jan. 30, 1939. 
Hon. Charles F. Connors, Chairman, State Racing Commission. 

Dear Sir: — You ask my advice and opinion upon certain questions 
of law which you have addressed to me. 
Your first question reads : — 

"Will you kindly advise as to the powers of this Commission under 
G. L. (Ter. Ed.) c. 128A, § 11." 



30 P.D. 12. 

G. L. (Ter. Ed.) c. 128A, as inserted by St. 1934, c. 374, provides, 
in section 11, as follows: — 

"The commission shall have full discretion to refuse to grant a license 
to any applicant for a license or to suspend or revoke the license of any 
licensee. If any license is suspended or revoked, the commission shall 
make a record of its reasons for doing so and such record shall be made 
available to any person requesting to inspect the same." 

I assume that by this question you desire to be advised as to your 
powers with relation to revocation of a license which has been voted by 
your Commission and a license certificate actually issued thereafter to 
conduct a racing meeting. 

It is obvious that by the terms of section 11 you are vested with power 
to revoke, at your discretion, any such license. Your discretion may not 
be exercised arbitrarily or irrationally without a cause which in your 
judgment is sufficient to warrant your act, but, by the employment of 
the phrase "The commission shall have full discretion ... to revoke 
the license of any licensee," the intention of the General Court to leave 
to your good sense and considered opinion the determination of the weight 
or effect of any particular cause, in the light of all existing material fac- 
tual conditions, in constraining you to an act of revocation is plain. 

After you have made such a revocation, the section requires you to 
make a record of your "reasons" for doing so. This record should con- 
tain a written statement from you, not merely of the cause itself of the 
revocation but of your "reasons" for making such revocation, which 
should set forth the cause or causes and the considerations which actu- 
ated you in determining that such cause or causes should result in the 
revocation. McKenna v. White, 287 Mass. 495, 497, 498. This record 
should be made in permanent form, and must be made available to any 
one requesting to inspect it. 

The said chapter 128A does not in terms state that you must hold a 
hearing before making a revocation, although it provides for a public 
hearing upon an application for a license. It has been held by our Supreme 
Judicial Court that where, in certain instances, a statute authorizing 
revocation of licenses did not actually make provision for a hearing, 
none was necessary before the exercise of such authority. Burgess v. 
Mayor and Aldermen of Brockton, 235 Mass. 95, 100, and cases there 
cited. 

Nevertheless, although the statute does not in specific terms compel 
you to such a course, a hearing is so important to the decision of a ques- 
tion of either fact or law that I am constrained to advise you that you 
should hold a public hearing before taking action to revoke, in fairness 
to the applicant and to all interested parties, so that you may be certain 
that you are informed as to all material factual matters and circum- 
stances involved in the situation, to the end that you may not do any 
injustice. 

Your second question reads as follows : — 

"Does a vote of the Commission and a notification of such vote to the 
applicant constitute a license to conduct a racing meeting, or must the 
certificate of license be issued to fulfill the requirements of the law." 

Chapter 128A, with relation to a license for a horse or dog racing meet- 
ing, contains provisions concerning a license, such as the requirement 



P.D. 12. 31 

that no license shall be issued until a bond has been provided, that every 
license shall be recorded in the office of the clerk of a nuniicipality, that 
the holder shall display a duly certified copy at his race track and shall 
exhibit the same to any person requesting to see it, and that the "license 
shall state" certain definite matters, namely, — (1) the name of the per- 
son to whom the same is issued; (2) the location of the race track where 
the racing meeting thereby authorized is to be held; (3) the days on 
which such meeting may be held; (4) the hours of each day between 
which racing may take place at such meeting; and (5) that the required 
license fee has been received by the Commission. These provisions in- 
dicate, in connection with the whole context of the sections with relation 
to licenses, that it was the intent of the Legislature that the license should 
take effect only where actuallj^ issued by delivery of a paper or certificate 
of license, as the latter words are commonly used. That being so, it 
follows that the vote of the Commission, even when notice thereof is 
transmitted to the applicant, is not itself an effective license until the 
paper or certificate of license has itself been issued by deliver}- to the 
applicant. 

A similar conclusion was reached by the Supreme Judicial Court in 
relation to licenses for the sale of intoxicating liquor, as to which it was 
said, with relation to such licenses, that the authority granted to the 
applicant arose "upon the issuing of the written license, and not upon 
the vote granting it, or on the completion of the instrument by the signa- 
tures of the mayor and city clerk." Commonwealth v. Welch, 144 Mass. 
356. 

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

The court in these cases laid emphasis, as forming a basis for its opin- 
ion, upon the requirements of the statute as to the manner in which 
the license was to be dealt with by the licensee and as to the matters 
which should be set forth in the license. Many of these were similar in 
kind to those required to be specifically set forth in a license for a racing 
meeting. With relation to licenses for the sale of intoxicating liquor, 
under discussion in these cases, it was provided by the act relative to 
them that they must be signed by certain designated officials, whereas 
no such specific provision exists in said chapter 128A; but that circum- 
stance does not, in my opinion, make inapplicable to the construction 
of said chapter 128A the principles of law enunciated in these cases, in 
view of the similarity of other statutory provisions of the respective acts. 

The language of the Supreme Judicial Court in an earlier case, Boston 
V. Schaffer, 9 Pick. 415, 418, — where, in connection with an action of con- 
tract to recover a license fee due under an order of municipal authorities 
that "hcenses to the several theatres be renewed upon the same terms 
and conditions as the last year, \az. on giving bonds, and paying 1000 
dollars each per annum," the court stated that "No formal, written license 
was given to the defendants, but that is not material; for there was a 
vote of the city that the license to the theatre should be renewed, on the 
proprietors giving bond and paying 1000 dollars a year, and the defend- 
ants have proceeded as under a license," — has no controlling effect in the 
present matter, in view of the later decisions in Commonwealth v. Welch, 
supra, and Commonwealth [v. Cauley, supra. The statute under discussion 



32 P.D. 12. 

in Boston v. Schaffer, St. 1821, c. 110, § 14, by virtue of which the order 
of the municipal authorities for a theatre hcense was made, contained no 
provisions with relation to matters required to be set forth in a license or 
to acts of recording or posting the same to be performed, and no language 
indicating any specific legislative intent that a paper or certificate of 
license should be actually issued. The differences between St. 1821, c. 110, 
§ 14, and the Hcense provisions of G. L. (Ter. Ed.) c. 128A, are so great 
that whatever weight is to be given to Boston v. Schaffer, supra, is not of 
value as an authority upon the question before me. The same is true of 
the decision in Commonwealth v. Spring, 19 Pick. 396. 

Accordingly, as was said of the statutes relative to liquor hcenses, it 
appears to have been the intention of the Legislature, in enacting said 
chapter 128 A, that a hcense for a racing meeting should take effect only 
when issued, and that the license referred to in the statute is the paper or 
certificate issued to the licensee and not the vote authorizing the grant of 
the license. That being so, the grant of authority is not an effective hcense 
until such paper or certificate of license has been actually issued by de- 
livery to the apphcant. A mere notification that a vote has been passed 
is not, and as such would not purport to be, a license. However, issuance 
by delivery of a properly signed paper or certificate of license should be 
made if the vote stands unrescinded on the records of the Commission. 
Prior to such issuance the authority is merely executory, and as such it 
can be cancelled at the pleasure of the granting authority. Accordingly, 
it is lawful for the new Commissioners to issue a certificate of hcense 
putting into effect a vote taken by a majority of the Commission as for- 
merly constituted, or the Commission as now constituted may rescind the 
vote passed by the Commission as formerly constituted, so that it would 
not be necessary, as a matter of law, to issue certificates of license. Attor- 
ney General's Report, 1935, p. 58, and cases there cited. 

What I have briefly said relative to the propriety of holding a public 
hearing before a revocation is applicable to the holding of such a hearing 
before a vote to rescind, where no license paper or certificate has actually 
been issued, in the interest of an informed, fair and impartial discharge 
of your duties, especially if there has been a change in the personnel of 
the Commission since the date of such vote, or if the applicant, in reliance 
upon the notification of the vote, has expended money with a view to 
preparing to use such a license when and if issued. 

Your third question reads : — 

"In the case before this Commission, two Commissioners voted to grant 
licenses to conduct horse racing meetings to the Eastern Racing Associa- 
tion, Inc. and Outdoor Amusements, Inc. The certificates of license to 
these two corporations have not been issued. The two Commissioners 
who voted to grant these licenses have since resigned and have been re- 
placed by Commissioners duly appointed and confirmed by the Executive 
Council. Is it permissible or lawful for these two new Commissioners to 
sign a certificate of license covering a vote taken by the two Commis- 
sioners who resigned? The certificate of license requires that the date 
on the license shall be the day on which the official signatures of the Com- 
missioners are affixed thereto." 

Although there has been a change in the personnel of the Board, such 
a Board is a continuing body and has a right to continue and complete 
the unfinished functions of the Board undertaken before the change in 
personnel. 



P.D. 12. 33 

I answer your question in the affirmative. 
Your fourth question reads : — 

"In reference to G. L. (Ter. Ed.) c. 128A, § 3 (i), the Commission re- 
quests an interpretation of this paragraph, in particular reference to 
whether the Commission has the power to Hcense two dog tracks in the 
same county, if the two tracks are not operating at the same time, or 
does this paragraph hmit the Commission to hcensing only one dog track 
in any county at any time." 

G. L. (Ter. Ed.) c. 128A, § 3 (i), reads: — 

"No licenses shall be issued to permit dog racing meetings to be held 
or conducted, except in connection with a state or county fair, at the 
same time at more than one race track within the same county or within 
twenty-five miles of another dog race track, nor at an}'' time at more than 
four race tracks within the commonwealth, nor at a dog race track having 
a racing strip of less than three sixteenths of a mile for outdoor tracks 
and one tenth of a mile for indoor tracks." 

This section permits the issuance of licenses for dog racing meetings at 
two tracks in the same county if they are not for meetings to be conducted 
simultaneously and if no other provision of the section of the statute is 
violated thereby. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Alcoholic Beverages — Licenses — Vote of a Town. 

Feb. 1, 1939. 
Alcoholic Beverages Control Commission. 

Gentlemen : — You ask my opinion, in effect, whether, if a town votes 
"Yes" on question No. 1, namely, — "Shall hcenses be granted in this 
city (or town) for the sale therein of all alcoholic beverages (whiskey, rum, 
gin, malt beverages, wines and all other alcoholic beverages)?" and at 
the same time votes "No" on question No. 3, namely, — "Shall licenses 
be granted in this city (or town) for the sale therein of all alcoholic bever- 
ages in packages, so called, not to be drunk on the premises?" licenses to 
"package goods" stores for the sale of all alcoholic beverages can be 
legally granted? 

I answer this question in the affirmative. 

Section 11 of G. L. (Ter. Ed.) c. 138, as amended, provides, after the 
setting forth of various questions to be voted upon, as follows : — 

"If a majority of the votes cast in a city or town in answer to question 
one is in the affirmative, such city or town shall, irrespective of the result 
of the votes in answer to questions two and three, be taken to have au- 
thorized, for the two calendar years next succeeding, the retail sale in 
such city or town of all alcoholic beverages to be drunk on and off the 
premises where sold, in accordance with the provisions of this chapter." 

It is plain, then, from the above-quoted portion of said section 11, taken 
in connection with the context of the section as a whole, that, if the vote 
on question No. 1 is in the affirmative, licenses for "package goods" stores 
are not prohibited by a negative vote on question No. 3 alone. 

Very truly yours, 

Paul A. Dever, Attorney General. 



34 P.D. 12. 

Alcoholic Beverages Control Commission — Refusal of the Selectmen of a 
Town to issue a License — Appeal. 

Feb. 1, 1939. 
Alcoholic Beverages Control Commission. 

Gentlemen: — You have asked my opinion as to a revocation of an 
approval of a license for the year 1939 entered by the selectmen of the 
town of Adams relative to a certain restaurant license. It appears, from 
the facts, set forth in your request, that the licensee applied on November 
28, 1938, for a renewal for 1939 of her 1938 license, and the appUcation 
was approved by the board of selectmen; that thereafter, on December 
27, the board of selectmen held a hearing, at which time it was alleged 
that the licensee had previously violated certain provisions of the Liquor 
Control Act; that thereafter the board of selectmen notified the licensee 
that they had "voted unanimously to allow you to operate under your 
old hcense for the balance of the year, that is, to December 31, 1938, and 
not to issue you a license for 1939"; and that since that time the board of 
selectmen have refused to issue a license for the year 1939. 

I am of the opinion that the licensee has an appeal to your Commission 
from the instant refusal of the selectmen to issue to her a license for 1939. 
Having approved the issue of a license to her for 1939, the selectmen were 
not warranted in attempting to vacate such approval by reason of an 
alleged violation of the terms of the 1938 license in December of 1938. 
If the selectmen found such a violation of the 1938 license, they had au- 
thority to revoke such 1938 license for the balance of the year. Having, 
however, exercised their approval with relation to the 1939 license, the 
board of selectmen were without authority to revoke such approval there- 
after, notwithstanding the violation of the terms of the older Hcense ; and 
it subsequently became their duty to issue the 1939 license in accordance 
with the approval which they had made thereof. I assume the requisite 
approval has been obtained from your Commission. 

You advise me that, by reason of the approval of the 1939 license given 
by the selectmen, your Commission, on December 16, gave your approval 
to the issuance of said license for 1939. 

The provisions of G. L. (Ter. Ed.) c. 138, § 16B, as finally amended by 
St. 1937, c. 424, indicate that the local board may not withdraw an approval 
of a license, once given under said section 16B, after the same has been 
forwarded to your Commission and has received your approval. One of 
the provisions of section 16B is to the effect that, after a license has been 
approved by the local board and been approved by your Commission, 
then "A license so approved shall be issued by said authorities not later 
than three days following receipt of notice of approval by the commission." 
The language of the quoted sentence shows plainly that it was the intent 
of the Legislature that, at least after the approval of the Commission 
has been given, the local authorities themselves have no power to revoke 
their own approval given prior to the act of the Commission. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 35 

Civil Service — City Ordinance — Inspector of Buildings in the City of 

Marlborough. 

Feb. 3, 1939. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion relative to classification 
under civil service of the position of inspector of buildings in the city of 
Marlborough. You advise me that you have recently ruled that the 
position was not under civil service, and you inform me that the conten- 
tion is made that the position is under civil service by reason of a section 
of a city ordinance relative to inspection of buildings, which reads as 
follows: — 

"Section 1. So long as the Inspector of Buildings is under Civil 
Service, the appointment, confirmation and removal of same shall be as 
required by the Civil Service Rules. He shall receive such compensation 
as the City Council may from time to time determine." 

If there be nothing further in the statutes or your rules and regulations 
relative to this position, concerning its relation to the civil service, such 
provision of the city ordinance would not itself be sufficient to cause the 
position to be brought within the scope of the Civil Service Law. Inas- 
much as it was specifically provided by the provisions of St. 1891, c. 21, 
§ 1, that such inspector of buildings should be removed at the pleasure 
of the mayor and aldermen, it would not appear to have been the intent 
of the Legislature that he should come under the Civil Service Law. 

Upon the facts as you have laid them before me concerning this posi- 
tion, I am of the opinion that your ruling that the position was not under 
civil serAnce was correct. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Payments to Distressed Citizens. 

Feb. 10, 1939. 

Hon. William A. Akeroyd, Chairman, House Committee on Agriculture. 

Dear Sir: — Your Committee has requested my opinion as to whether 
House Bill No. 181, entitled "An Act providing for further assistance to 
certain sufferers from the recent flood and hurricane, or either of them," 
would be constitutional if enacted into law. 

Inasmuch as the provisions of the bill as drawn indicate an intent and 
a principal purpose to provide for payments of money directly to dis- 
tressed citizens engaged in agricultural pursuits, for the rehef of their own 
particular needs occasioned by loss or damage to property as a result of 
the recent hurricane and flood, the bill, if enacted into law, would, in 
m}'^ opinion, be unconstitutional. Expenditures of money from the Com- 
monwealth's treasury must be for the purpose of promoting the general 
public welfare, not for the personal relief of members of a particular class 
of sufferers. The terms of the proposed bill do not furnish any rule for 
the expenditures therein called for which would indicate that they were 
intended to promote only the general public welfare, nor does the bill 
itseK indicate an intention to fulfill a pubUc purpose. Lowell v. Boston, 
111 Mass. 454; Opinion of the Justices, 175 Mass. 599; ibid., 211 Mass. 624. 



36 P.D. 12. 

Doubtless a general scheme tending to promote the general public 
welfare, through which agriculturists might be benefited as an integral 
part thereof, might be so drawn as not to be open to constitutional ob- 
jections, but the instant measure is not legislation of such character. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Police Commissioner for the City of Boston — Grant of Hackney Licenses. 

Feb. 15, 1939. 
Hon. Joseph F. Timilty, Police Commissioner for the City of Boston. 

Dear Sir : — You have asked my opinion upon a question of law with 
relation to the performance of one of your various duties, namely, that 
of granting hackney licenses. 

Inasmuch as your duty in this particular respect springs directly from 
an act of the Legislature dealing with the particular subject, I am of the 
opinion that this is a question upon which I should advise you, in spite 
of the fact that there are many matters upon which the Attorney General 
is not required to render you opinions, as has been stated heretofore by 
me and by my predecessors in office. 

You have set forth the following facts : — 

"The hackney carriage year begins February 1. For the period from 
February 1, 1937, to January 31, 1938, a certain licensee licensed fifteen 
hackney carriages, medallions being numbered consecutively from 401- 
415, inclusive. For the year February 1, 1938, to January 31, 1939, this 
licensee licensed ten taxicabs, medallions numbered 401-410, inclusive. 
No appHcations were made for the five medallions numbered 411-415, 
inclusive, for the license year beginning February 1, 1938. 

About four weeks ago the licensee made renewal applications for me- 
dallions numbered 406-415, inclusive, for the license year beginning Feb- 
ruary 1, 1939. Five of the latter, viz., 411-415, expired January 31, 1938. 

By the facts presented, the licensee allowed one full year to expire 
without relicensing these particular taxicabs bearing medallion numbers 
411-415, inclusive. 

The annual fee for each hackney carriage license is five dollars." 

You have asked my opinion on the following questions with relation 
thereto, as follows : — 

"1. Should the licensee have licensed these cabs at some time within 
the hackney carriage year, from February 1, 1938, to January 31, 1939, 
and paid a fee of five dollars for each renewal? 

2. Under the hackney carriage law, St. 1934, c. 280, as set out in sec- 
tion 4, . . . was the licensee within its rights when applications were 
made about four weeks ago for such renewals, to take effect February 1, 
1939, thus avoiding the payment of a fee for the license year commencing 
as of February 1, 1938, and intending to pay a fee for the one year com- 
mencing as of February 1, 1939, and ending January 31, 1940? 

3. In brief, must a hackney carriage owner license his vehicle every 
license year to keep alive its place in the ranks, or may he allow one li- 
cense year to expire and renew for the following license year? " 

I answer all your questions generally to the effect that the licensee, 
in order to obtain the benefits flowing from a renewal, must renew for the 



p. D. 12. 37 

year immediately succeeding that for which his Hcense was issued, at 
some time during such year. He may not obtain a renewal "as of right" 
if he does not so apply, pay the fee and obtain a license within the next 
succeeding year. 

1. Accordingly, I answer your first question in the affirmative. 

2. I answer your second question to the effect that the hcensee, under 
the conditions outlined in this question, was not entitled as a "matter 
of right" to a renewal for the year beginning February 1, 1939, and end- 
ing January 31, 1940. 

3. I answer your third question to the effect that a licensee may not 
allow one entire period of a 3^ear to go by after the expiration of his license, 
and then renew for the next following year "as of right," as the quoted 
words are used in section 4 of St. 1934, c. 280. 

Very truly yours, 

Pai'l a. Dever, Attorney General. 

Department of Public Utilities — Common Carrier — 
Service and Rates to Nantucket. 

Feb. 16, 1939. 

Hon. Francis M. McKeow^n, Chairman, Department of Public Utilities. 

Dear Sir: — You request my opinion on two questions of law based 
upon the following statement of facts : — 

"The New England Steamship Company, a common carrier engaged in 
the transportation of passengers and freight, operates its vessels only 
between New Bedford, Woods Hole, Vineyard Haven, Oak Bluffs and 
Nantucket, all within the Commonwealth of Massachusetts. All its 
transportation business is local to the State, having its origin and termina- 
tion within Massachusetts. In the usual sailing course, vessels of said 
company in plying from Oak Bluffs to Nantucket pass outside the terri- 
torial limits of Massachusetts, but no part of the voyage is over the terri- 
tory of any other State or of any foreign nation. That portion of the 
voyage outside of the territorial limits of Massachusetts is merely incidental 
to the only purpose of the voyage, which is to ply between New Bedford, 
Woods Hole, Vineyard Haven, Oak Bluffs and Nantucket. The vessels 
do not on their voyage take on or put off any article of commerce, nor do 
they transport passengers or freight to any other vessel. All transportation 
is carried on between the mainland at New Bedford and Woods Hole and 
the islands of Martha's Vineyard and Nantucket. 

Upon the foregoing facts please advise whether or not — 

1. The Massachusetts Department of Public Utilities has power to order 
the New England Steamship Company to provide service between the 
mainland and Nantucket. 

2. The Massachusetts Department of Public Utilities has power to fix 
rates, fares or charges of said New England Steamship Company between 
the mainland and Nantucket." 

1. G. L. (Ter. Ed.) c. 159, § 12, reads, in part, as follows: — 

"The department [Massachusetts Department of Public Utilities] shall, 
so far as may be necessary for the purpose of carrying out the provisions 
of law relative thereto, have general supervision and regulation of, and 
jurisdiction and control over, the following services, when furnished or 
rendered for public use within the commonwealth, . . . 



38 P.D. 12. 

(a) The transportation or carriage of persons or property, or both, 
between points within the commonwealth by . . . steamships, ..." 

G. L. (Ter. Ed.) c. 159, § 16, reads, in part, as follows: — 

"If the department [Massachusetts Department of Public Utilities] 
is of opinion, after a hearing had upon its own motion or upon complaint, 
that the regulations, practices, equipment, appliances or service of any 
common carrier are unjust, unreasonable, unsafe, improper or inadequate, 
the department shall determine the just, reasonable, safe, adequate and 
proper regulations and practices thereafter to be in force and to be observed, 
and the equipment, appliances and service thereafter to be used, and shall 
fix and prescribe the same by order to be served upon every common car- 
rier to be bound thereby. . . . Every such common carrier shall obey 
every requirement of every such order so served upon it, and do everything 
necessary or proper in order to secure absolute compliance with every such 
order by all its officers, agents and employees." 

G. L. (Ter. Ed.) c. 159, § 12 (a), specifically limits the supervision, 
regulation, jurisdiction and control by the Department of Public Utilities 
of service furnished or rendered by steamship companies for public use 
within the Commonwealth of Massachusetts. 

G. L. (Ter. Ed.) c. 1, § 2, defines the jurisdiction of the Commonwealth 
as follows : — 

"The sovereignty and jurisdiction of the commonwealth shall extend 
to all places within its boundaries subject to the concurrent jurisdiction 
granted over places ceded to or acquired by the United States." 

Nantucket, being within the territorial boundaries of the Commonwealth 
of Massachusetts, clearly comes within the scope of G. L. (Ter. Ed.) 
c. 159, § 12. 

From the statement of facts submitted it is obvious that no question 
of interstate commerce or commerce with a foreign nation is involved. 
The mere fact that the vessels of the New England Steamship Company, 
in plying from Oak Bluffs to Nantucket, pass outside the territorial 
limits of Massachusetts is, in my opinion, insufficient to deprive the Massa- 
chusetts Department of Public Utilities of the authority to regulate the 
service in question. 

In the case of Wilmington Transportation Co. v. California Railroad 
Commission, 236 U. S. 151, it was held that a State, through its railroad 
commission, in the absence of action by Congress may regulate charges for 
transportation having both origin and termination within the State, none 
of it being within any other State, even though a part of it may be over the 
high seas. 

If it be assumed that interstate commerce is affected by the passing 
of the vessels of the New England Steamship Company over the high seas, 
from the statement of facts submitted it is obvious that interstate com- 
merce is affected only incidentally. 

The court has held that in those matters which fall within the power of 
the State, but by reason of their relation to interstate commerce also come 
within the reach of the Federal power, the State is not precluded from 
exercising its authority to regulate until its authority is limited through 
the assertion l)y Congress of its paramount power. Minnesota Rate Cases, 
230 U. S. 352, 398; DiSanto v. Pennsylvania, 273 U. S. 34; Southern Pacific 



P.D. 12. 39 

Co. V. California Railroad Commission, 10 Fed. Sup. 918, 922. In Southern 
Pacific Co. V. California Railroad Commission, supra, the court said: — 

"It is conceded that states, in the absence of rejiulation by Congress, 
may, under the poHce power, pass legislation which incidentally affects 
interstate commerce." 

Citing Sligh v. Kirkwood, 237 U. S. 52; Anderson v. Pacific Coast Steam- 
ship Co., 225 U. S. 187; Mintz v. Baldwin, 289 U. S. 346; Missouri Pacific 
R.R. Co. V. Norwood, 283 U. S. 249. 

Accordingly, it is my opinion that the provisions of G. L. (Ter. Ed.) 
c. 159, §§12 (a) and 16, confer power upon the Massachusetts Depart- 
ment of Public Utilities to order service between the mainland and Nan- 
tucket, such service being solely with respect to shipments which are local 
to the State, both as to beginning and ending of transportation. The courts 
have repeatedly recognized the propriety of the reasonable exercise of the 
power of States as to those matters which are distinctly local in character, 
in order to meet the needs of suitable local protection. Minnesota Rate 
Cases, supra; Wilmington Transportation Co. v. California Railroad Com- 
mission, 236 U. S. 151. 

2. G. L. (Ter. Ed.) c. 159, § 14, reads, in part, as follows: — 

"Whenever the department [Massachusetts Department of Public 
Utilities] shall be of opinion, after a hearing had upon its own motion or 
upon complaint, that any of the rates, fares or charges of any common 
carrier for any services to be performed within the commonwealth, or the 
regulations or practices of such common carrier affecting such rates, are 
unjust, unreasonable, unjustly discriminatory, unduly preferential, in any 
wise in violation of any provision of law, or insufficient to yield reasonable 
compensation for the service rendered, the department shall determine 
the just and reasonable rates, fares and charges to be charged for the 
service to be performed, and shall fix the same by order to be served upon 
every common carrier b}" whom such rates, fares and charges or any of 
them are thereafter to be observed. Every such common carrier shall 
obey every requirement of every such order served upon it, and do every- 
thing necessary or proper in order to secure absolute compliance with 
every such order by all its officers, agents and employees. ..." 

This statute expressly confers powers to the Department of Public 
Utilities over regulation and establishment of rates, fares or charges of 
anj^ common carrier for any service to be performed within the Common- 
wealth of Massachusetts. 

Having in mind the cases cited in answer to question number one, it is 
my opinion that the Massachusetts Department of Public Utilities is 
empowered to fix rates or charges of the New England Steamship Com- 
pany for service between the mainland and Nantucket, such service being 
solely with respect to shipments which are local to the State, both as to 
beginning and ending of transportation. 

Very truly yours, 

Paul A. Dever, Attorney General. 



40 P.D. 12. 

Department of Public Utilities — Issue of Bonds by a Gas Company. 

Feb. 16, 1939. 
Hon, Francis M. McKeown, Chairman, Department of Public Utilities. 

Dear Sir : — You request my opinion relative to a proposed action by 
a gas company concerning outstanding bonds. 

Upon the facts as you have presented them to me in your letter, no 
present action in relation to the matter is required to be taken by your 
department. The question which you address to me would seem to be 
of a hypothetical nature, and an answer thereto of possible value, at this 
time, only to the gas company in shaping its future course of dealing 
with its bondholders and with the Federal Securities and Exchange Com- 
mission. 

The Attorney General, following a long line of precedents, does not 
ordinarily give opinions upon hypothetical questions, but in the instant 
matter it is possible that such steps may be taken by this gas company 
as might require action on your part in the near future. Rather than 
leave you without advice concerning the matter, which may facilitate 
the work of your department, I feel constrained to express my opinion in 
response to your request. 

The exact question which you have addressed to me reads : — 

"Can the Worcester Gas Light Company by agreement with the holders 
of bonds issued by it under authority of this Commission, granted by its 
order (D. P. U. 4975), reduce the interest rate and shorten the period of 
maturity and secure a waiver of redemption fees by the holder of such 
bonds, without an application to and further action of the Department of 
Public Utilities being legally necessary under G. L. (Ter. Ed.) c. 164, 
§§ 13 and 14, and complying with section 15?" 

I answer your question in the affirmative. 

The matter is not altogether without doubt, nevertheless, in view of 
the following facts of which I have been advised, namely, — (1) that 
these bonds have been previously approved as to the rate of interest by 
your department (under G. L. [Ter. Ed.] c. 164, § 13) ; (2) that they are 
only of such amount as your department has previously voted (under 
G. L. [Ter. Ed.] c. 164, § 14) to be "reasonably necessary for the purpose" 
for which authorized; (3) that they have been approved by your depart- 
ment in a decision in which reasons are assigned therefor, and the same 
filed in the office of your department and in the office of the State Secre- 
tary, and a duplicate delivered to the corporation; and (4) that after 
your approval was given, as above noted, the gas company issued the bonds 
in question by selling them in full compliance with the terms of G. L. 
(Ter. Ed.) c. 164, § 15. 

I am of the opinion that the making of the particular changes by agree- 
ment in the terms of the bonds, set forth in your question, does not re- 
quire an application to, nor the approval of, your department. 

The main purpose of the statutory provisions with relation to the issue 
of bonds was, as has been stated by a former Attorney General in I Op. 
Atty. Gen. 659, 661, to prevent the issuing of bonds not reasonably neces- 
sary for the prosecution of the business for which such corporations were 
organized, — to the end that the public should not be required to con- 
tribute to the payment of interest upon bonds, the proceeds of which 



P.D. 12. 41 

were not reasonably necessary for the business of the corporation. This 
purpose was recognized and effectuated by the approvals and decision 
already referred to, made by the department prior to the sale of the bonds. 
The amendment of the bonds in the manner and to the extent noted, 
including the shortening of the date of maturity and the waiving of re- 
demption fees, under all the factual conditions stated as existing with 
regard to the instant matter, does not necessarily tend to defeat such 
main purpose, nor any other purpose, of the statute to place the bonds 
outside the sweep of the department's initial approvals and decision. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Mental Health — Acceptance of Gift — Use of Real Property 

of the Commonwealth. 

Feb. 16, 1939. 

Dr. Clifton T. Perkins, Commissioner of Mental Health. 

Dear Sir: — You have written me as follows: — 

"We have been approached as to whether or not such trustees [trustees 
of a State hospital] might accept as a gift in perpetuity to the State, a 
chapel for the exclusive use of patients of a certain sect or religious 
denomination, which proposed edifice, of course, would be erected on the 
grounds of an institution under the jurisdiction of this department. 

I would like to inquire whether or not, in your opinion, it would be 
legally permissible for the trustees of a given hospital to accept, as a gift 
for the State, a chapel for sectarian purposes, as outlined briefly above." 

The authority of the trustees of a State hospital to hold gifts in trust 
for the Commonwealth is contained in G. L. (Ter. Ed.) c. 123, § 27, which 
section provides : — 

"The trustees of each state hospital shall be a corporation for the pur- 
pose of taking and holding, by them and their successors, in trust for 
the commonwealth, any grant or devise of land, and any gift or bequest 
of money or other personal property, made for the use of the state hos- 
pital of which they are trustees, and for the purpose of preserving and 
investing the proceeds thereof in notes or bonds secured by good and suf- 
ficient mortgages or other securities, with all the powers necessarj^ to 
carry said purposes into effect. They may expend any unrestricted gift 
or bequest, or part thereof, in the erection or alteration of buildings on 
land belonging to the state hospital, subject to the approval of the de- 
partment, but all such buildings shall belong to the state hospital and 
be managed as a part thereof." 

I gather from the facts set forth in your letter that the particular gift 
of a chapel, to which you refer, which is to be "for the exclusive use of 
patients of a certain sect or religious denomination," is to be a gift of a build- 
ing when completed, and does not include a gift of land upon which the 
building is to be erected, but rather, as a prerequisite to the creation of 
such building as a gift, requires the grant of the "use" in perpetuity of 
real property of the Commonwealth, which, when made, will in effect be 
a use of such real property for the purpose of aiding a particular "religious 
denomination." This being so, in my opinion the grant of such use of 
the real property of the Commonwealth, if made by the trustees, would 
be in violation of the prohibition contained in the last clause of Mass. 



42 P.D. 12. 

Const. Amend. XLVI, § 2, with relation to a "grant, appropriation or use 
of public money or property" by the Commonwealth or any political 
division thereof, which reads : — 

"... and no such grant, appropriation or use of public money or prop- 
erty or loan of public credit shall be made or authorized for the purpose 
of founding, maintaining or aiding any church, religious denomination or 
society." 

Since the making of a grant of such a use of the real property of the 
Commonwealth is essential to the receipt of the gift by the trustees, 
even if the trustees are incurring no obligation to expend public funds in 
maintaining the edifice after its erection, as to which point your letter 
is silent, I am of the opinion that the trustees may not lawfully accept 
such a gift under the conditions which you have described. 

The grant of the exclusive use of a piece of the Commonwealth's real 
property for the erection upon it of an edifice devoted solely to the pur- 
poses of a chapel of a single "religious denomination" and intended to 
be "for the exclusive use of patients" of such "denomination" is a very 
different exercise of administrative power from the expenditure of funds 
by the State institutions for religious instruction therein by clergymen 
of various sects or for the maintenance of a chaplain at an institution, 
which forms of expenditure were considered and held not improper in 
V Op. Atty. Gen. 510. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Permits for Setting Fires — Officers of the Naiional Guard. 

Feb. 16, 1939. 
Hon. Ernest J. Dean, Commissioner of Conservation. 

Dear Sir: — Replying to your recent letter, the permits for setting 
fires, to which you refer, are issued by town officials. Officers of the Na- 
tional Guard are not required to obtain such permits for the setting or 
maintaining by them of fires upon lands the use of which has been ac- 
quired by the Commonwealth for mihtary purposes. 

It was not the intent of the Legislature, as disclosed by the provisions of 
G. L. (Ter. Ed.) c. 48, § 13, as most recently amended by St. 1938, c. 204, 
that the activities of its officers in the discharge of their duties upon lands 
under the control of the Commonwealth should be restricted or hampered 
by regulations or the necessity for permits made by or issuing from town 
officials. 

The applicable principle of law has been applied in a wide variety of 
instances concerning the relation of local regulations and licenses or per- 
mits to acts done on behalf of the Commonwealth on premises under its 
control. See Attorney General's Report, 1934, p. 75; ibid. 1933, p. 47; 
ibid. 1932, p. 86; I Op. Atty. Gen. 296; II ibid. 56; IV ibid. 537; Teasdale 
V. Newell Construction Co., 192 Mass. 440. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 43 

Outdoor Advertising — Signs of Brokers on Real Estate. 

March 7, 1939. 
Hon. William F. Callahan, Commissioner of Public Works. 

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

"G. L. (Ter. Ed.) c. 93, § 30, provides that signs which advertise the 
property itself or any part thereof, such as 'For Sale' or 'To Let,' shall not 
come under the jurisdiction of this department. 

Will you please advise me whether or not, in your opinion, it was the 
intent of the Legislature in enacting this law, with specific reference to the 
aforementioned provision, to include signs that read 'Sold by' or 'Rented 
by'." 

Said section 30 prohibits the erection on private property within pubhc 
view from any highway, public park or reservation any billboard or other 
advertising device calling attention to any business, article, substance or 
any other thing, unless such billboard or device conforms to the rules and 
regulations adopted by the Department of Public Works. An exception 
is made to signs "advertising the property itself or any part thereof as 
for sale or to let." The obvious purpose of this exception is to permit 
advertisement on the premises of the fact that certain propert}^ is for sale 
or to let. After the property has been sold or rented, a sign which reads 
"Sold by" or "Rented by" does not advertise the property as for sale or 
to let but advertises the broker. Obviously, such signs do not come 
within the exception of the act. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Works — Certain Contracts with 
Municipalities — Workmen^s Compensation. 

March 7, 1939. 

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

Dear Sir: — You have asked my opinion, in effect, as to whether your 
department may lawfully award contracts to nmnicipalities for the per- 
formance of the public work referred to in G. L. (Ter. Ed.) c. 149, § 34A 
(inserted by St. 1938, c. 438), when such municipalities have not deter- 
mined that all employees, except members of the police or fire force, upon 
such work shall be included under workmen's compensation, as well as 
laborers, workmen and mechanics, as provided in G. L. (Ter. Ed.) c. 152, 
§ 69, as amended by St. 1936, c. 403. 

I am of the opinion that you may not so award contracts to municipalities 
unless they, by their city councils or by the qualified voters of towns, have 
made such a determination and indicated it as provided in said section 69. 
If a municipahty has previously- accepted St. 1913, c. 807, such further 
determination as to the extension of employees to be paid compensation 
must be made by vote of a city council or of the qualified voters of a town. 
Acceptance of said St. 1913, c. 807, and the further extension of its terms 
to other employees than merely laborers, workmen and mechanics is 
essential to the provision of such compensation as is provided through 
insurance by other contractors, and is intended by the Legislature to be 
the equivalent thereof, and to be essential to the making of a contract 



44 P.D. 12. 

with your department by a municipality, under the requirements of said 
chapter 152, section 69, as amended. 

To hold otherwise would be in direct opposition to the intent of the 
Legislature to create an harmonious scheme for the protection of employees 
upon public works, whether the contractor be a private individual or 
a political subdivision. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Retirement System — Veteran — Co7npensatio7i 
— Salary — Maintenance. 

March 7, 1939. 
Hon. George E. Murphy, Comptroller. 

Dear Sir: — You have directed my attention to the provisions of 
G. L. (Ter. Ed.) c. 32, § 56, with relation to the meaning of the word 
"compensation" as there used with respect to the retirement allowance 
of a veteran retired under the provisions of said section. You inquire 
particularly as to whether the phrase "regular rate of compensation" 
as there used is to be construed as including maintenance furnished by the 
Commonwealth to a member of the State Police. 

The applicable portion of the statute, G. L. (Ter. Ed.) c. 32, § 56, reads: — 

"A person who has served in the army, . . . shall be retired with the 
consent of the retiring authority, if incapacitated for active service, at one 
half the regular rate of compensation paid to him at the time of retire- 
ment, . . ." 

I am of the opinion that the "regular rate of compensation paid to him 
at the time of retirement" is limited to the salary of $2,100 per annum, 
which you advise me the officer was receiving, and does not include the 
value of such maintenance as he may have received from the Common- 
wealth while in its service. 

In an opinion of former Attorney General Malone rendered to the 
Governor in 1908 (III Op. Atty. Gen. 141), construing the word "com- 
pensation" as used with respect to the retirement allowance of a civil war 
veteran under a statute which is now embodied in G. L. (Ter. Ed.) c. 32, 
§ 49, it was said : — 

"This question depends upon the meaning of section 1 of chapter 458 
of the Acts of 1907, which provides that: — 

'A veteran of the civil war in the service of the commonwealth, if in- 
capacitated for active duty, shall be retired from active service, with the 
consent of the governor, at one-half the rate of compensation paid to him 
when in active service, to be paid out of the treasury of the common- 
wealth.' 

In the case submitted for my consideration, the veteran was paid a 
salary of $1,500 a year, and in addition received his board and lodging; 
and he now claims to be entitled to be retired at one-half such salary plus 
one-half the cash value of the board and lodging he was receiving at the 
time of his application. 

R. L., c. 6, § 58, provides that: — 

'Salaries payable from the treasury shall, unless otherwise provided, be 
paid on the first of each month and shall be in full for all services rendered 
to the commonwealth by the person to whom they are paid.' 



P.D. 12. 45 

This section itself, it seems to me, is decisive of the question now under 
consideration. The hving expenses and Uke advantages which certain 
emploj^ees of the Connnonwealth may enjoy are given to them not as 
salary, but as privileges which the nature or place of their duties require 
the Commonwealth to grant to them to secure the highest degree of 
efficiency. Such privileges may at any time be discontinued and the 
employee required to defray his own living expenses, should such a course 
be possible without injuring the efficiency of the employee or of any em- 
ployee who may occupy the same position. It is not probable that the 
Legislature intended to reduce such items as living expenses to a monetary 
value without providing some means other than the claims of the em- 
ployee himself for determining the exact value of such privileges; and it 
must follow, I think, that the word 'compensation' is to be limited to 
salaries, the exact amount of which is determined by law and may always 
be speedily ascertained by the Governor and Council." 

That part of R. L., c. 6, § 58, referred to in the above-mentioned opinion 
is now embodied in G. L. (Ter. Ed.) c. 29, § 31. 

This opinion was cited in VI Op. Atty. Gen. 571, wherein maintenance 
described by the Legislature as a "prerequisite" was held not to be part 
of the "salary" of an official for the purpose of calculating a retirement 
allowance under G. L. (Ter. Ed.) c. 32, § 48. 

In an opinion of the then Attorney General to the Commissioner of 
Corporations and Taxation on November 24, 1933 (Attorney General's 
Report, 1933, p. 88), it was held that, for the purpose of computing the 
retirement allowance of county employees under G. L. (Ter. Ed.) c. 32, 
§§ 20-26, which was based by the statute upon salary, in the absence of 
any definition of the same specifically enlarging the meaning of "salary" 
so as to include maintenance, the natural meaning of "salary" was to be 
applied, and that such meaning did not include the idea of maintenance. 

Compensation and salary appear to be used by the Legislature in said 
chapter 32, with reference to the basis of pensions and retirement allow- 
ances, as synonymous and, when not qualified by specific statutory provi- 
sions indicating a contrary legislative intent, are employed without em- 
bracing "maintenance" within their scope. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commissioner of Conservation — Authority to lease Land. 

March 7, 1939. 

Hon. Ernest J. Dean, Commissioner of Conservation. 

Dear Sir: — Replying to your letter relative to Wingaersheek Beach, 
I am of the opinion that, under the provisions of G. L. (Ter. Ed.) c. 132A, 
§ 3, to which you refer, you have no authority to lease the same. The power 
given you by said section to "acquire" land for the Commonwealth for 
conservation and recreational purposes, otherwise than by eminent domain, 
is a power to obtain land for the permanent and not the temporary posses- 
sion of the Commonwealth. Albright v. Sussex County Lake and Park 
Commission, 68 N. J. L. 523-527. This is made plain by the whole con- 
text of said section, in which, among other powers, specific authority is 
given to you to sell or exchange land acquired under this section. The con- 
text plainly negatives the idea that the intent of the Legislature was to 



46 PD. 12. 

authorize leasing of land. The terms of said section 3 in this respect are 
in striking contrast to those of G. L. (Ter. Ed.) c. 131, § 25, wherein the 
Legislature makes plain its intent to confer the power to lease in relation 
to fishing rights in streams. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Quorum — Ex Officio Members of a Commission — Right to vote. 

March 7, 1939. 
Massachusetts Development and Industrial Commission. 

Gentlemen: — You desire to be advised (1) whether the two ex officio 
members of your Commission have the right to vote, and (2) whether 
their presence or absence at a Commission meeting must be taken into 
consideration in the determination of a quorum. 

I answer both your questions in the affirmative. The statute creating 
your Commission provides that it shall consist "of the commissioner of 
labor and industries and the commissioner of agriculture, ex officiis, and 
five unpaid members appointed by the governor, with the advice and con- 
sent of the council." It also provides that "the commission shall annu- 
ally choose one of its members as chairman," and that one of the members 
appointed by the Governor shall be "a representative of labor," and it 
arranges for the terms of office of the appointed members. There is 
nothing in the statute which indicates a legislative intent that the two 
members who hold office therein by virtue of their incumbency of other 
designated positions, respectively, shall be on any other or different foot- 
ing than the other members. The phrase "ex officiis " designates the mem- 
bers to whom it refers, not as specific persons but as holders of particular 
positions. It does not differentiate their powers or authority from that 
of other members. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Contract for Maintenance of a Public Building. 

March 8, 1939. 

Dr. Clifton T. Perkins, Commissioner of Mental Health. 

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

"Your opinion is requested as to whether the provisions of G. L. (Ter. 
Ed.) c. 149, § 34A, as inserted by St. 1938, c. 438, would apply to a con- 
tract for extermination of vermin from the institutions." 

I am of the opinion that such a contract as you refer to is a contract 
for the maintenance of a pubhc building, as the word "maintenance" is 
used in G. L. (Ter. Ed.) c. 149, § 34A (as said section is inserted by St. 
1938, c. 438), so that the contract fairly falls within the sweep of the sec- 
tion, and provision for insurance for the payment of workmen's compen- 
sation is an essential part of such contract. 

Washing windows has been held to be a part of the "maintenance" of 
buildings. Chicago Cleaning Co. v. Industrial Board, 283 111. 177. The 
cleaning of streets has been held to be a part of "maintaining" such pub- 
lic works. Connor v. Manchester, 73 N. H. 233. To restore worn-out 



P.D. 12. 47 

furniture has been said to be within the sweep of the word "maintenance." 
In re Warren Hospital, 15 Pa. Co. 83, 85. The operation of an elevator, 
as distinguished from merely providing it, has been said to come within 
the terms of a contract for maintaining a building. Globe Ins. Co. v. Wayne, 
75 Ohio St. 451. 

It is a matter of common knowledge that the actions of rodents and 
some other forms of vermin accelerate the decay or depreciation of the 
structure of many buildings. Their removal, therefore, is not unconnected 
with the physical maintenance of such buildings, and, moreover, I assume 
that the payment upon such a contract is provided for in the budget or 
appropriation bill under an item covering maintenance. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Lake Cochituate — Rules of Metropolitan District Commission. 

March 8, 1939. 

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

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

"This Commission prepared a set of rules for boating and fishing in 
Lake Cochituate. We submitted these rules to the Department of Public 
Health for their approval, and the Department of Public Health disap- 
proved the rules . . . 

In view of the understanding of this Board that rules applying to reser- 
voirs for furnishing drinking water must be either made or approved by 
the Department of Public Health, this Board voted to ask your opinion 
as to what action it should take ..." 

The provisions of St. 1937, c. 197, and St. 1938, c. 318, have made it 
lawful for the inhabitants of certain towns to boat and fish in designated 
areas of Lake Cochituate, subject only to such reasonable regulations as 
your Commission may make, until such time as the waters of the lake 
"are used for water supply purposes of the metropolitan water district 
as authorized by law." By the use of the quoted phrase, employed in 
both acts, the Legislature intended to indicate an actual use for water 
supply purposes, not a use as a reserve supply only. 

Assuming that the time has not yet come when the waters are in fact 
actually used for water supply purposes, the designated inhabitants have 
the right to the use of those portions of the lake described in the acts as 
open to such inhabitants, respectively, free from any restrictive rules or 
regulations which have been or may be made by the Department of Pub- 
lic Health with relation to them, and subject only to such "reasonable 
regulations" as may be made by your Commission itself, acting by its 
own authority. The intent of the Legislature in this respect is so plainly 
manifested by the language used in the two acts that by implication they 
take away such statutory authority as was vested in the Department of 
Public Health to make rules for the purpose of preventing pollution and 
securing sanitary protection of the waters designated in these two acts, 
as far as their use, through boating and fishing, by those authorized by 
the acts to make such use is concerned, during the period when the waters 
are not actually used for water supply purposes. The described use of 
the waters mentioned in the two acts is now free to those designated 



48 P.D. 12. 

therein, without Hmitation, in the event that your Commission makes no 
regulations. If you do make such regulations, the use is limited by them. 
The power to make these regulations is vested solely in your Commis- 
sion, and, under the terms of these acts, regardless of older statutes, which, 
as I have suggested, are impliedly repealed in so far as they conflict there- 
with, such regulations do not require the approval of the Department of 
Public Health to give them validity. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Outdoor Advertising — Municipalities — Private Property. 

March 13, 1939. 

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

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

"G. L. (Ter. Ed.) c. 93, § 29, provides that the Department of Public 
Works shall make and may amend or repeal rules and regulations for the 
proper control and restriction of signs and other advertising devices on 
public ways or on private property within public view of any highway, 
public park or reservation. 

Will you please advise me whether or not, in your opinion, this provi- 
sion of the law would include advertising signs which are constructed and 
maintained on property owned or controlled by the city or town." 

The question is whether the words "private property," in section 29 
of the statute, include "property owned or controlled by the city or town." 

The term "private property" applies generally to such property as 
belongs absolutely to an individual or corporation, as distinguished from 
a body politic. As soon as property passes into the absolute ownership 
of a State or of a subordinate poUtical unit of the State it ceases to be 
private property and becomes public property. So, therefore, city build- 
ings and the property on which they are situated, schools, playgrounds, 
public parks and the hke are clearly not private property and are not 
within the scope of the statute. If a city or town has obtained absolute 
ownership of property by foreclosure of tax titles, such property has 
ceased to be private property and becomes public property. 

It is not essential that the property be actually devoted to public uses. 
Corcoran v. Boston, 185 Mass. 325, 326; Essex County v. Salem, 153 Mass. 
141; Bouvier's Law Dictionary; Thompson v. Bowes, 115 Me. 6, 1 A. L. R. 
1365; Western Union Telegraph Co. v. Pennsylvania R.R. Co., 195 U. S. 
540, 570. 

I cannot answer your question so far as it pertains to property "con- 
trolled by the city or town" without having specific cases called to my 
attention to illustrate what you mean by "controlled." 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 49 

Old Age Assistance — Eligibility of Aged Perso)is — Transferring Vacant 

Land. 

March 14, 1939. 

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

Dear Sir: — You request my opinion upon the following matter: — 

"I respectfully request your opinion as to whether a local bureau of 
old age assistance has authority to approve applications for old age as- 
sistance in cases where real estate owned by an apphcant has been trans- 
ferred within five years immediately prior to the filing of an application 
for such assistance, if the equity in the real estate was less than three 
thousand dollars." 

I answer your question to the effect that the fact that an aged person, 
otherwise entitled to receive old age assistance, has transferred vacant 
land from which no income is derived or real estate upon which he actu- 
ally resides, in which his equity was less than three thousand dollars, does 
not authorize a local bureau of old age assistance to withhold assistance 
from such person. 

G. L. (Ter. Ed.) c. 118A, § 4, provides: — 

"The ownership of an equity in vacant land from which no income is 
derived or in real estate upon which an applicant actually resides shall 
not disqualify him from receiving assistance under this chapter; ..." 

Since the ownership of an equity in the two forms of real estate men- 
tioned in said section 4 does not disqualify him from the receipt of assist- 
ance, by the specific terms of said section 4 his transfer of such real 
property cannot be said to be made so as to render himself eligible to as- 
sistance, since he was eligible before such transfer, and hence does not bring 
him within the scope of G. L. (Ter. Ed.) c. 118A, § 6, which reads: — 

"No assistance under this chapter shall be granted to an applicant who, 
at any time within five years immediately prior to the filing of an appli- 
cation for such assistance, has made an assignment or transfer of prop- 
erty so as to render himself eHgible to such assistance." 

The transfer of real estate of a different kind from the two kinds de- 
scribed in said section 4, by which an aged person's equity of less than 
three thousand dollars was extinguished, might constitute a transfer 
made "so as to render him ehgible to assistance," within the meaning of 
said section 6, and thus deprive a town of authority to grant him such 
assistance. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Old Age Assistance — Hospitalization of Aged Persons. 

March 14, 1939. 
Hon. Walter V. McCarthy, Commissioner of Public Welfare. 

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

"The question raised is whether or not local bureaus of old age assist- 
ance are authorized, under the provisions of the Old Age Assistance Law 



oO P.D. 12. 

of this Commonwealth, to pay for the support or care and treatment of 
recipients of old age assistance in hospitals supported in whole or in part 
from pubUc funds." 

Local bureaus are not authorized to pay for the support, care or treat- 
ment as such of recipients of old age assistance in hospitals supported in 
whole or in part by public funds. 

It is plain that an aged person who is hospitalized for more than a 
temporary period in such a hospital will not, by reason of his situation 
in such an institution, be in need of the support afforded by G. L. (Ter. Ed.) 
c. 118A. It is doubtless for that reason that the Federal Social Security 
Act of August 14, 1935, c. 531, tit. I, § 3 (a), excludes from the amounts 
to be paid to the States for old age assistance any amount paid to an aged 
person who is "an inmate of a public institution." 

There may be instances, however, in which an aged person who is in 
a hospital only temporarily may actually be in need of assistance although 
he is for a brief period relieved of certain expenses by reason of his being 
a patient in a hospital which is free to him. It is probably for this reason 
that, as I am advised by you, the Federal Security Board has ruled that 
aged persons who are receiving temporary medical or surgical care in a 
public hospital do not fall within that board's interpretation of the word 
"inmate" as employed in the provisions of the Federal Social Security Act, 
as above indicated, so that Federal participation may be allowed in pay- 
ments to such aged persons. 

There is no positive prohibition against the furnishing of any assistance 
when essential to aged persons temporarily in institutions such as hospitals 
which are supported in whole or in part by public funds. The language of 
section 1 of G. L. (Ter. Ed.) c. 118A, in this respect reads: — 

"Such assistance shall, wherever 'practicable, be given to the aged person 
in his own home or in lodgings or in a boarding home, which for the pur- 
poses hereof shall include any institution providing shelter, care and treat- 
ment for aged persons which is not supported in whole or in part by public 
funds; provided, that no inmate of such a boarding home or institution 
shall be eligible for assistance under this statute while being cared for 
under a contract ..." 

It may be gathered from the whole context of said section 1 that it was 
not the intent of the Legislature that aged persons who were being taken 
care of by contract or otherwise for life or long periods in public institu- 
tions, especially those designed for the shelter, care and treatment of the 
aged, should not be recipients of assistance under the instant statute. 
Such an intent with relation to those hospitalized, for relatively short 
periods, for medical or surgical care does not appear from a reading of said 
section 1 as a whole. 

In determining in any given instance whether hospitalization is for a 
temporary period only, sound judgment and discretion, applied to all the 
ascertainable facts and surrounding circumstances of the particular case, 
are to be employed in order to arrive at a fair decision. 

It is to be borne in mind by those charged with the duty of making such 
decisions that the act was framed by the General Court for the purpose of 
providing assistance to be paid directly to the aged themselves, and not 
for the purpose of disbursing money to other persons. 

Very truly yours, 

Paul A. Dever, Attorney General. 



I 



P.D. 12. 51 

Constitutional Law — Unconstitutionality of a Statute Relative to 
Licensing Automobile Dumps. 

March 22, 1939. 

Hon. Geouce W. Roberts, Chairman, House Committee on Bills in the 

Third Reading. 

Dear Sir: — Your Committee has requested my opinion as to whether 
or not House Bill No. 1243, entitled "An Act limiting the keeping of 
automobile dumps, so called," would, if enacted, violate any provision of 
the Constitution of the Commonwealth or of the United States. 

By the act it is proposed to amend G. L. (Ter. Ed.) c. 140, by inserting 
after section 68 the following new section : — 

"Section 68A. No person licensed under section fifty-four or holding 
a class B license under section fifty-eight, and no other person, shall gather 
together, keep, deposit or allow to accumulate old, discarded, worn out or 
junked automobiles, or parts thereof within the limits of any highway, 
or in any such location or situation as to be unsightly, detracting from 
natural scenery, and injurious to the comfort and happiness of individuals 
and the public, or to the enjoyment of property. Violation of this section 
shall be punished by a fine of not more than fifty dollars, and, in the case of 
a person licensed as aforesaid, by revocation of his license." 

In my opinion, the proposed act so interferes with the use of private 
property as to amount to a taking of property for public use without 
compensation, violative of article X of the Declaration of Rights of the 
Massachusetts Constitution and of the Fourteenth Amendment of the 
Federal Constitution. 

While it is true that the right of private property must yield to the 
paramount right of the State to exercise its police power, that power has 
traditionally been exercised for the promotion of public safety, health, 
morals and general welfare. It has generally been held that it does not 
embrace the right to compel property owners to give up rights for purely 
aesthetic objects, although, if the primary and substantive purpose of the 
legislation is such as justifies the act, considerations of taste and beauty 
may enter in as an auxiliary. Geyieral Outdoor Advertising Co., Inc. v. 
Department of Public Works, 289 Mass. 149, 184, 185; Nebbiav. New York, 
291 U. S. 502, 525, 528. 

The regulation of billboards in this Commonwealth on the ground that 
they were offensive to good taste was held unconstitutional until the 
passage of Mass. Const. Amend. L, specifically providing therefor. Com- 
monwealth V. Boston Advertising Co., 188 Mass. 348. 

So far as the proposed statute prohibits the deposit of worn-out or 
junked automobiles or parts thereof within the limits of any highway, 
it is doubtless constitutional, although such legislation would seem un- 
necessary, as obstructions of the highway can be adequately dealt with 
under existing laws. 

So far as the act proposes to prohibit the deposit of such automobiles 
"in any such location or situation as to be unsightly, detracting from 
natural scenery and injurious to the comfort and happiness of individuals 
and the public, or to the enjoyment of property," in my opinion it would 
be unconstitutional. The test proposed is a purely subjective one, and is 
operative regardless of the neighborhood of the property or its remoteness 
from public view. Under this test, a landowner on whose property such 



52 P.D. 12. 

cars were deposited, no matter how remote from the pubhc highway, would 
be criminally liable if a person of highly sensitive nature and refined taste 
should stroll by his property and be rendered unhappy by seeing a deposit 
of old automobiles thereon. If a property owner can be held criminally 
liable in such a case, then there is practically no limit to which the Legisla- 
ture may not go in requiring property owners to maintain their property 
to conform to the taste and comfort of individuals. 

This opinion is not to be interpreted as holding that a constitutional bill 
could not be drawn declaring the deposit of such automobiles to be a public 
nuisance when in residential neighborhoods or within view of public 
buildings, parks and parkways. It has been recognized in some of the 
recent cases that, while the business of wrecking automobiles and salvaging 
parts is not in itself a nuisance, it may become so when it is conducted 
in a residential community. Parkershurg Builders Material Co. v. Barrack, 
W. Va. Supreme Ct. of App. 191 S. E. 368, 192 S. E. 291, 110 A. L. R. 1454; 
Grundstein v. Ashland, 25 Ohio N. P. N. S. 493. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Unconstitutionality of a Proposed Statute 
Relative to Vacant Lots. 

March 27, 1939. 

Hon. George W. Roberts, Chairman, House Committee on Bills in the 

Third Reading. 

Dear Sir : — Your Committee has requested my opinion as to whether 
or not House Bill No. 746, entitled "An Act providing for control of 
premises made unsightly or dangerous by the demolition of buildings," 
would, if enacted, violate any provision of the Constitution of the Com- 
monwealth or of the United States. 

This bill provides for the amendment of G. L. (Ter. Ed.) c. 139, by 
inserting a new section after section 1 and modifying section 2, so that the 
proposed sections lA and 2 would read as follows: — 

"Section 1A. In any city or town the aldermen or selectmen shall 
give written notice to the owner of a lot of land upon which a building has 
formerly been situated within fifty feet of the highway line which building 
has been torn down or demolished within six months of such notice, or his 
authorized agent and after a hearing may make and record an order ad- 
judging such lot to be a nuisance to the neighborhood or dangerous and 
prescribing that any cellar or excavation therein be filled in to the level of 
the lot, that any debris be removed or that the owner of said lot face the 
walls of any buildings adjoining said lot which were exposed by the tearing 
down of the building formerly on said lot. 

Section 2. A person aggrieved by an order under either of the preced- 
ing sections may appeal to the superior court for the county where such 
building is situated, if, within three days after the service of such attested 
copy upon him, he presents to such court a petition stating his grievance 
and the order of the board. After such notice to the board as the court 
shall order, trial by jury shall be had as in other civil causes. The jury 
may affirm, annul or alter such order, and the court shall render judgment 
in conformity with said verdict, which shall take effect as an original order. 
If the order is affirmed, the petitioner shall pay the costs; if it is annulled, 
he shall recover from the town his damages, if any, and costs; and if it is 



P.D. 12. 53 

altered, the court may render such judgment as to costs as justice shall 
require." 

In my opinion, the proposed act so interferes with the use of private 
property as to amount to a taking of property for public us(i without 
compensation, violative of article X of the Declaration of Rights of the 
Massachusetts Constitution and of the Fourteenth Amendment of the 
Federal Constitution. 

This bill raises the same question which was considered in my letter to 
you of March 22, 1939 (ante p. 51), relative to House Bill No. 1243. 
It is unnecessary to restate the principles there set down. It remains only 
to consider their application to the present bill. 

The title of the bill indicates an intent to treat as a nuisance premises 
rendered unsightly or dangerous by the demolition of buildings. So far as 
it is intended to treat as a nuisance premises rendered dangerous by the 
demolition of buildings, it deals with a proper subject of legislation. So far, 
however, as the bill intends to treat as a nuisance premises made merely 
unsightly by the demolition of buildings, in my opinion it is unconstitu- 
tional. Mere unsightliness of premises, in and of itself, cannot be a justifi- 
cation for interference with the owner's control of his premises. 

There is a further objection to the bill, in my opinion, in that it permits 
the aldermen or selectmen, upon adjudging such lot to be a nuisance, to 
prescribe "that any cellar or excavation therein be filled in to the level of 
the lot, that any debris be removed or that the owner of said lot face the 
walls of any buildings adjoining said lot which were exposed by the tearing 
down of the building formerly on said lot." 

A landowner has a right to make and maintain excavations on his 
property so long as they do not deprive an adjoining landowner of lateral 
support of his property in its natural state, Foley v. Wyeth, 2 Allen, 131; 
Kronberg v. Bulle, 247 Mass. 325; and in some cases, by statute, of the 
buildings erected thereon. Regan v. Keyes, 204 Mass. 294. If the excava- 
tion is so near the street as to make it dangerous to passers-by, the nuisance 
might be abated by having it properly fenced in. Certainly, a landowner 
cannot be required to face the walls of his neighbor's buildings exposed 
by the tearing down of his own building. In case the adjoining owner 
objected, the effect of this provision would be to require the landowner to 
commit trespass on his neighbor's property. 

In my opinion, these objections to the bill could be obviated by striking 
out from the title the words "made unsightly or" and by substituting for 
the last part of section lA, after the word "prescribing," the formula 
which is now employed in section 1, which reads, "its disposition, alteration 
or regulation." 

Whether the bill with these changes will accomplish what it was designed 
to accomplish is questionable. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commissioner of Education — Use of Premises of Teachers Colleges. 

March 27, 1939. 
Hon. Walter F. Downey, Commissioner of Education. 

Dear Sir : — I am in receipt of a letter from you which reads, in part, 
as follows : — 



54 P.D. 12. 

"At various times the Commissioner receives requests for the use of 
buildings of the State Colleges of the Commonwealth. Sometimes the 
request is for the auditorium, sometimes for the gymnasium, and at other 
times for other parts of the school plant. It was the practice of my prede- 
cessor to disapprove any such request, on legal grounds. 

Many worthy bodies, such as the American Legion, the American Red 
Cross, the Boy Scouts, the Girl Scouts, etc., have at various times re- 
quested the use of parts of a building. I would greatly appreciate a ruling 
by you, in order that any action of mine may be strictly in accord with the 
provisions of the statutes." 

In an opinion of March 30, 1938 (Attorney General's Report, 1938, p. 55), 
to the Commissioner of Education it was stated that the Department of 
Education has supervision and control of the State Teachers Colleges as 
regards the premises and all the purposes for which they and other institu- 
tions under the charge of the department may be used. G. L. (Ter. Ed.) 
c. 73; c. 15, § 4. It was also stated, in effect, that these institutions must 
be conducted primarily for the promotion and advancement of education, 
and that no uses may be permitted which will interfere with such purpose, 
but that, as incidental to their primary employment, the use of the premises 
of these institutions may be permitted to organizations which may be said 
to be beneficial to the students and not inconsistent in their principles with 
those inculcated by the institutions. 

Such use referred to in said opinion was assumed to be a temporary one, 
and it must be merely permissive. It may be allowed only to an e.xtent 
which is incidental to the main purposes of the institutions, and not such, 
by reason of its character or duration, as to interfere with the normal em- 
ployment of the premises for the sole benefit of the students. 

The use of school premises in cities and towns is regulated by statute, 
G. L. (Ter. Ed.) c. 71, § 71. The statute is declaratory of a practice 
recognized as valid by the Legislature, and is a guide which the Depart- 
ment of Education may follow in giving permission for the employment 
of premises under its control, provided the department confines itself to 
giving permission only for temyorary uses, of the kind indicated in said 
section 71, not so extended as to afford even the color of any right of user 
other than that arising from a permission subject to immediate revocation 
at pleasure, and not such as to interfere with the normal activities of the 
students or the particular requirements or needs of State institutions of 
higher learning. 

Said section 71 reads: — 

"For the purpose of promoting the usefulness of public school property 
the school committee of any town may conduct such educational and 
recreational activities in or upon school property under its control, and, 
subject to such regulations as it may establish, and, consistently and with- 
out interference with the use of the premises for school purposes, shall 
allow the use thereof by individuals and associations for such educational, 
recreational, social, civic, philanthropic and like purposes as it deems for 
the interest of the community. The use of such property as a place of 
assemblage for citizens to hear candidates for public office shall be con- 
sidered a civic purpose within the meaning of this section. This section 
shall not apply to Boston." 



P.D. 12. 55 

The use of the premises in charge of the Department of Education by 
the American Legion for any of the purposes indicated in the statute, in- 
cluding those connected with the Legion's own particular activities, if the 
department, in the exercise of its sound judgment, deems them to be for the 
interests of the conmumity, assuming that the normal activities of the 
students and the institutions are in no way interfered with, may be per- 
mitted at the department's discretion. 

Yours very truly, 

Paul A. Dever, Attorney General. 

Teachers' Retirement System — Salary — Budget Cut. 

March 27, 1939. 
Hon. Walter F. Downey, Commissioner of Education. 

Dear Sir: — You have asked ni}^ opinion relative to the basis for the 
establishment of teachers' retirement pensions, and have written as 
follows : — 

"The Teachers' Retirement Board has received an application for 
retirement, to take effect on April 1, 1939, from a teacher employed in the 
public schools of Revere. The salary of this teacher, as established by the 
school committee, has been at the rate of $1,800. 

This teacher is entitled to a pension computed under G. L. (Ter. Ed.) 
c. 32, § 10 (5), and the average salary for the five years preceding retire- 
ment is an important factor. Due to the fact that the budget was cut, 
and the teachers were paid for onlj^ nine months and two days, shall the 
salary for the year be considered $1,638, the amount which she received, 
or shall the Retirement Board use $1,800 for the year in determining the 
average salary?" 

Irrespective of the cut in the budget, the teacher's salary in 1938, to 
which she was entitled, was $1,800 {Barnardy. Lynn, 295 Mass. 144; Camp- 
bell v. Boston, 290 Mass. 427), and her salary for that year should be taken 
by your Board, in making its computation, to be that figi.u*e and not the 
smaller sum which she actually received. See Attorney General's Report, 
1937, p. 136. 

This being so, you will be entitled to contributions from the teacher 
figured on the basis of the $1,800 salary. 

Very truly yoiu's, 

Paul A. Dever, Attorney General. 

State Employees — Right to oppose Pending Legislation. 

March 31, 1939. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — Replying to your recent letter, I know of no law which 
would forbid married women employees in the State service, who are 
classified under civil service, opposing pending legislation affecting the 
employment of married women in the public service, by legal aid or 
otherwise. 

Every citizen is entitled to give expression to his views concerning 
legislation which may come before the General Court, either for or against, 



56 P.D. 12. 

and persons in the public service are not in this respect in any other or 
different position from the rest of the citizens. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Aid to Dependent Children — Contributions of Stepfather. 

April 5, 1939. 

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

Dear Sir : — I am in receipt from you of a letter which, in part, reads : — 

"The department, in its supervision of the Aid to Dependent Children 
Law, G. L. (Ter. Ed.) c. 118, as amended by St. 1936, c. 413, is in doubt 
as to the legal responsibility of a stepfather for the support of his step- 
children." 

A stepfather is under no legal obligation by statute or common law 
to support his stepchildren. Brookfield v. Warren, 128 Mass. 287. If a 
child's mother is living, she is bound to support him while he is a minor, 
irrespective of the fact that she may have married again. 

In the administration of the provisions of G. L. (Ter. Ed.) c. 118, as 
amended, for aid to mothers with dependent children, if a child is in fact 
dependent upon its mother for support, as indicated by investigation 
made under section 3 of said chapter 118, the mother may be given the 
aid designated by the statute, "to enable her to bring up such child prop- 
erly in her own home," even if there be a stepfather who does not con- 
tribute to the child's support. If the stepfather does in fact contribute 
something toward the support of the child, that is a fact to be taken 
into consideration by the board of public welfare concerned in determin- 
ing, through the fair exercise of good sense and sound judgment, the 
amount of aid necessary to be furnished to the mother to assure the 
proper bringing up of the child in the mother's home, whether she makes 
her home with the stepfather or separately. 

The proper application of the principle of law, which I have indicated, 
to particular factual matters involved in such family relations as you have 
described in your letter calls for the use of intelligence and judgment of 
a high order on the part of the officials charged with the duty of carrying 
out the legislative intent in relation to mother's aid, as set forth in said 
chapter 118, as amended. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Pardons — Terms and Conditions — Parole Board. 

April 6, 1939. 
Hon. Ralph W. Robart, Chairman, Parole Board. 

Dear Sir: — You have asked my opinion with relation to a person 
pardoned by the Governor on parole conditions, whose pardon in this 
respect reads : — 

" We do hereby pardon the said offences and release him . . . subject to 
such terms and conditions as shall be prescribed by the Commissioner of 
Correction and the Parole Board." 



P.D. 12. 57 

Your question is as follows: — 

" I would like to ascertain if the Parole Board has sole authority to direct 
the conduct in the community of a person pardoned on parole conditions, 
as the Board has in ordinary parole cases." 

The terms of the pardon which you have cited, as quoted above, are 
plain. The terms and conditions under which the prisoner receives the 
pardon are those prescribed by both the Commissioner of Correction and 
the Parole Board. The language employed does not import that there are 
to be two sets of terms and conditions, one prescribed by the Commissioner 
and one by the Parole Board, but that the binding terms and conditions 
are such as may be made by the Commissioner and the Parole Board 
acting jointly. 

The Governor has authority, with the advice and consent of the Council, 
under G. L. (Ter. Ed.) c. 127, § 152, to grant a pardon upon such condi- 
tions, restrictions and limitations "as he considers proper," and his 
declaration of the conditions, restrictions and limitations upon which the 
pardon issues, as set forth in the language thereof, as quoted above from 
your letter, determines the conditions, restrictions and limitations of the 
pardon, which may not be varied by any other officer. The conditions, 
restrictions and limitations determined by the Governor, as described 
b}^ you, are that the pardoned person is to be subject "to such terms and 
conditions as shall be prescribed" by the Commissioner of Correction and 
the Parole Board acting together. 

Under the same chapter, with relation to parole of prisoners, where the 
Parole Board alone is vested with the power to establish conditions at- 
tached to the enlargement of the prisoner, it is made plain, by the use of 
the pronoun "it," that the Parole Board, acting by itself, is to have author- 
ity to deal with conditions applicable to the parole. The phrase employed 
by the Governor in the quoted terms of the pardon is of different import. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Commission — Employee — Retirement. 

April 10, 1939. 
Hon. George E. Murphy, Comptroller. 

Dear Sir: — You have written me as follows: — 

"A certain employee working for the Metropolitan District Commission 
recently reached the age of seventy and consequently was obliged to ter- 
minate his employment with that body. He was not a member of our 
retirement system, because he was over fifty-five years of age when he 
entered the State service, and one of the provisions of the retirement sys- 
tem is that 'persons over fifty-five shall not be allowed to become mem- 
bers of the association, and no such person shall remain in the service of 
the commonwealth after reaching the age of seventy.' 

The ^Metropolitan District Water Supply Commission, established under 
the provisions of St. 1926, c. 375, and St. 1927, c. 321, now wishes to hire 
this individual. The pertinent provision appears to be St. 1927, c. 321, 
§ 3, which, in part, reads as follows: — 

'. . . None of the employees of the commission, whether appointed 
before or after the effective date of this act, shall become members of the 



58 P.D. 12. 

state retirement sj'stem, but those who are members thereof at the time 
of their employment may be continued therein.' 

On December 30, 1936, you rendered an opinion to His Excellency the 
Governor relative to the employment of one Dr. Thuot as Superintendent 
of the Boston State Hospital, Dr. Thuot being then over seventy years of 
age. I am in doubt as to whether that opinion governs this particular 
case, or whether the language in St. 1927, c. 321, § 3, which states that 
employees shall not become members of the State retirement system, 
would lift it from the prohibition which is there stated. 

Will you kindly advise me whether, in your opinion, it is proper for the 
Metropolitan District Water Supply Commission to employ a person 
who has terminated his employment with another department because he 
has reached the age of seventy, or whether the language in the particular 
statute under which this board operates exempts him from this pro- 
vision." 

It has been the established policy of the General Court, as expressed 
in legislation covering a considerable period, that, with certain specified 
exceptions, emploj^ees of the Commonwealth, whether members of the 
State retirement system or not, should not remain in the service of the 
Commonwealth or be employed therein after attaining the age of seventy. 
Attorney General's Report, 1937, p. 40 (December 30, 1936), and opinions 
there cited. 

It does not appear that in the amendment of the statute relative to the 
State retirement system (G. L. [Ter. Ed.] c. 32), by St. 1938, c. 439, any 
other or different intent in this respect was expressed by the Legislature. 

I assume that the "board" referred to in your letter is the Metropolitan 
District Water Supply Commission, and that persons who work for it are 
employees of the Commonwealth. 

Although St. 1927, c. 321, § 3, which you quote in your letter, provides 
that none of those persons who work for the Commission "shall become 
members of the state retirement system," such provision has no effect 
to withdraw them from those terms of said G. L. (Ter. Ed.) c. 32, as 
amended, which make plain that employees, with certain exceptions not 
here applicable, who reach the age of seventy are not to continue or be 
re-employed in the service. 

As was pointed out in my opinion of December 30, 1936, cited above, 
persons entering the service at an age over fifty-five were prohibited from 
becoming members of the "state retirement association," yet they were 
obliged to leave the service at seventy. So here, employees of the said 
Commission are prohibited from becoming members of the "state retire- 
ment system," the quoted phrases having the same meaning in the re- 
spective statutes, but that fact no more removes them from the scope of 
the provisions for retirement at seventy than does the prohibition with 
relation to the class of persons first above mentioned. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 59 

Municipalities — Authority to appoint a Woman as a Police Officer. 

April U, 1939. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir : — You have asked me, in effect, with relation to your duties 
in certifying names of candidates for appointments, whether or not a mu- 
nicipaUty has authority to employ a woman as a police officer. 

Mass. Const. Amend. LXIX, ratified by the people in November, 1924, 
in its first section reads: — 

"No person shall be deemed to be ineligible to hold state, county or 
municipal office by reason of sex." 

In view of this provision and of the decisions of the Supreme Judicial 
Court in which it has been said that a police officer is a person holding a 
public office and a State office, there would appear to be no doubt but that 
a municipal appointing authority may appoint a woman as a police officer. 
It is unnecessary, in view of what has been stated by our Supreme Judicial 
Court as to the status of such an officer, to determine whether or not he 
may also be called an officer of a municipality as such ; nor is it necessary 
to discuss the effect of the repeal, before the adoption of said constitu- 
tional amendment, of the older statutes relative to the appointment of 
women as special police officers, St. 1914, c. 510, and Gen. St. 1918, c. 168, 
to which you refer. Buttrick v. Lowell, 1 Allen, 172. Kimball v. Boston, 
1 Allen, 417. Hathaway v. Everett, 205 Mass. 246. Riopel v. Worcester, 
213 Mass. 15, 17. No particular positions of policeman and policewoman, 
as such, exist under our general statutes with relation to municipalities. 
Police matrons occupy a different status. G. L. (Ter. Ed.) c. 147, §§ 18-20. 
The Metropolitan District Commission has authority, under a statute 
originally enacted before the adoption of the said constitutional amend- 
ment, to appoint women as special police officers, and by a statute simi- 
larly enacted, St. 1920, c. 211, the city of Boston was specifically empowered 
to appoint women to its police force. However, as I have stated, such a 
specific grant of power to appoint women is not now necessary, in view 
of the constitutional amendment. By a proper exercise of discretion, 
under Civil Service Rule 13 the particular needs of a given police force 
can be adequately cared for by your department. 

Very truly yours, 

Paitl a. Dever, Attorney General. 

Constitutional Law — Constitutionality of a Proposed Statute 
Relative to "Fair Trade." 

April 18, 1939. 

Hon. George W. Roberts, Chairman, House Committee on Bills in the 

Third Reading. 

Dear Sir : — Your committee has asked my opinion, in effect, as to 
whether House Bill No. 1247, entitled "An Act relative to the 'Fair Trade' 
act," would be unconstitutional if enacted into law. 

I am of the opinion that it would be constitutional. 

The bill amends G. L. (Ter. Ed.) c. 93, as amended by St. 1937, c. 398, 
by adding at the end of section 14B thereof the words: "Violation of this 
section shall be punished by a fine not exceeding five hundred dollars." 



60 P.D. 12. 

Said section 14B was added in 1937 to G. L. (Ter. Ed.) c. 93, by said 
chapter 398, which was entitled, "An Act protecting trade mark owners, 
distributors and the pubhc against injurious and uneconomic practices 
in the distribution of articles of standard quality under a trade mark, 
brand or name." 

Section 14A, which was also added to G. L. (Ter. Ed.) c. 93, by said 
amending statute, contained various provisions with relation to contracts 
for the sale and resale of trade marked and other identifiable commodities. 

Section 14B, to which the penalty clause is sought to be attached by the 
proposed amending bill, reads : — 

"Wilfully and knowingly advertising, offering for sale or selHng any 
commodity at less than the price stipulated in any contract entered into 
pursuant to the preceding section, whether the person so advertising, 
offering for sale or selling is or is not a party to such contract, is hereby 
declared to constitute unfair competition and to be actionable at the suit 
of any person damaged thereby." 

The creation of a criminal penalty for the violation of a statute which 
protects the general welfare by properly forbidding what the Legislature 
has reasonably deemed unfair or injurious to the public does not of itself 
render such a statute unconstitutional. Commonwealth v. Strauss, 191 
Mass. 545. 

While it is a recognized principle of constitutional law that a statute 
creating a criminal offence is void for want of due process of law, if it fails 
to prescribe with reasonable certainty the elements of an offence {Common- 
wealth V. Pentz, 247 Mass. 500, 506; United States v. L. Cohen Grocery Co., 
255 U. S. 81), and although the phraseology of said section 14B does not 
possess that clarity often found in statutes defining criminal offences, 
nevertheless it cannot be said that it fails to set forth with reasonable 
certainty the elements of the acts constituting what the proposed amending 
bill now makes a criminal offence, as well as a cause of action for damages, 
as in the original section 14B. Miller v. Strahl, 239 U. S. 426; Common- 
wealth V. Pentz, 247 Mass. 500, 508. The prohibited acts, to be punishable 
under the proposed penalty, must by the terms of the section be such as 
are done "wilfully and knowingly," and are set forth seriatim as well as 
merely being described as constituting "unfair competition." The lan- 
guage of the statute is not so vague as to violate the constitutional guaran- 
tees with relation to due process. 

Sections 14A and 14B of G. L. (Ter. Ed.) c. 93, have been on our statute 
books for almost two years. They have not been declared unconstitutional 
by our Supreme Judicial Court. They would appear to be constitutional, 
as finally amended by the proposed House Bill No. 1247, for the reasons 
already stated and because the police power, in its protection of the general 
welfare, extends to the regulation or prohibition of business practices which 
may be injurious, in their consequences or results, to the general welfare. 
General Outdoor Advertising Co., Inc. v. Department of Public Works, 289 
Mass. 149, 188. The power exists, in relation to such practices, to control 
the right to contract and to control conduct with relation to contracts 
which may so affect the general welfare. Erie R.R. Co. v. Williams, 233 
U. S. 685; Holcombe v. Creamer, 231 Mass. 99, and cases there cited. 

The Legislature is the sole judge as to the policy, wisdom and expetUency 
of statutes enacted under the police power. The courts will not interfere 
with the discretion of the Legislature in such exercise of the police power so 



P.D. 12. 61 

long as it keeps within the fair and reasonable scope of such powers. 
Opinion of the Justices, 163 Mass. 589, 595. Chicago, Burlington & Quincy 
R.R. Co. V. McCuire, 219 U. S. 549, 569. 

Accordingly, I am of the opinion that House Bill No. 1247, if enacted 
into law, would not be unconstitutional. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Agent of the Soldiers' Relief Department in Fall River. 

April 20, 1939. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — You have asked my opinion, in effect, as to whether the 
agent of the soldiers' and sailors' relief department in Fall River is in such 
a sense one of the "heads of departments" in that city as to place him 
outside the protection of the Civil Service Law, G. L. (Ter. Ed.) c. 31. 

In an opinion rendered to a former head of your department by one of 
my predecessors in office, November 25, 1927, VIII Op. Atty. Gen. 387, 
it was held : — 

"In view of the fact that there is no department of soldiers' and sailors' 
relief provided for in the charter or ordinances of the city of Fall River, 
it cannot be said that the agent of soldiers' and sailors' relief is the head 
of a department of the city. A fortiori it cannot be said that he is the head 
of a principal department within the meaning of the provisions of G. L., 
c. 31, § 5, as amended . . ." 

Said section 5 excludes from the scope of the Civil Service Rules "heads 
of pnnczpa departments of . . . a city." 

Since the above opinion was written the city of Fall River has adopted 
the Plan A form of government. Nevertheless, I am advised that no 
ordinance has been passed specifically establishing a department of sol- 
diers' and sailors' relief. In the absence of an ordinance passed since the 
adoption of the new form of government, the old organization of soldiers' 
and sailors' relief and the powers and duties of its personnel continue as 
before. G. L. (Ter. Ed.) c. 31, §§ 4 and 5. Even if it can be said that, 
by imphcation from the terms of Plan A, the organization of soldiers' and 
sailors' reUef became one of the "departments" of the city, and the agent 
its "head" and an officer instead of an employee, nevertheless, in the ab- 
sence of a specific ordinance and of facts indicating some actual change 
in the relative importance of the relief organization in the administrative 
forces of the city from that which it previously possessed, the organization 
could not properly be held to be one of the "principal departments" of the 
city. This being so, the said agent is not the head of a principal depart- 
ment of Fall River, and so is within the sweep of the Civil Service Laws 
and Rules now as formerlv. Robertson v. Commissioner of Civil Service, 
259 Mass. 447, 450; Attorney General's Report, 1930, p. 74. Under Plan 
A, if the agent be the head of a department his appointment would not be 
subject to the approval of the city council, so as to exclude him from the 
protection of civil service, under another provision of section 5, as an 
officer whose appointment is subject to approval by such council. 

Very truly j'^ours, 

Paul A. Dever, Attorney General. 



62 P.D. 12. 

Public Welfare Districts in Two or More Towns. 

April 26, 1939. 
Hon. David W. Armstrong, Commissioner of Public Welfare. 

Dear Sir : — Replying to your letter relative to the establishment of 
public welfare districts by two or more towns, in my opinion a vote of 
each town is necessary before it can be included in a district recommended 
by the Commissioner of Public Welfare under St. 1938, c. 476. 

The intent of the Legislature, as expressed in said chapter 476, was 
that, irrespective of whether a town or the Commissioner took the initia- 
tive in steps looking toward the formation of such a district, both must 
concur in its creation. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Unconstitutionality of a Proposed Statute relating to 
Residential Qualifications of Members of the Executive Council. 

April 27, 1939. 

Hon. Georc;e W. Roberts, Chairman, House Committee on Bills in the 

Third Reading. 

Dear Sir : — Your committee has asked my opinion as to the con- 
stitutionality of a proposed bill, House Bill No. 611, entitled "An Act 
relative to the residential qualifications of members of the Executive 
Council," if enacted into law. 

The bill reads as follows : — 

"Section 1. Chapter fifty-four of the General Laws is hereby amended 
by inserting after section one hundred and fifty, as appearing in the Ter- 
centenary Edition, the following new section: — Section 150A. No per- 
son shall be eligible for nomination or election to the office of councillor 
unless he is a resident of the councillor district in which he seeks such 
nomination or election. 

Section 2. Any member of the executive council who is not a resi- 
dent of the councillor district by which he was elected, shall, upon the 
effective date of this act, cease to hold said office." 

The Constitution of Massachusetts has made provision concerning the 
eligibility of a person for election as a councillor. The constitutional 
provision now governing the eligibility of a person for such office is con- 
tained in Mass. Const. Amend. XVI. 

That amendment provides : — 

"No person shall be eligible to the office of councillor who has not been 
an inhabitant of the commonwealth for the term of five years immedi- 
ately preceding his election." 

It was said by our Supreme Judicial Court in Bigney v. Secretary of the 
Commonwealth, 301 Mass. 107 : — 

"The Constitution contains no other express provision governing the 

eligibility of a person for election as councillor by the people it 

does not expressly provide that the councillor so elected shall be a resident 
or inhabitant of the district. 



P.D. 12. 63 

No statute requires that a councillor elected by the people must be a 
resident or inhabitant of the councillor district by which he is elected 
even if we assume, as we do not imply, that it would be competent for the 
legislature to impose such a limitation upon eligibility. See Opinion of 
the Justices, 165 Mass. 599, 601-602." 

It is therefore plain that the Constitution itself establishes the quali- 
fications with relation to residence of councillors. 

Our Supreme Judicial Court has stated the law with relation to the 
power of the General Court in this connection, in Opinion of the Justices, 
240 Mass. 611, 614, as follows: — 

"Where qualifications of voters or officers are fixed by the Constitu- 
tion the Legislature cannot add to or subtract from them." 

It has repeatedly been stated by our Supreme Judicial Court that when 
qualifications for the exercise of functions by persons have been estab- 
lished by the Constitution all legislation with relation thereto is made 
subordinate to the provisions of that instrument and cannot add to the 
qualifications so prescribed. Kinneen v. Wells, 144 Mass. 497. 

In Opinion of the Justices, 165 Mass. 599, 601, it was stated: "If the 
qualifications for the office are prescribed by the Constitution, the Legis- 
lature cannot change them." 

The court has also said that it is only with respect to offices not estab- 
lished by the Constitution, the qualifications of whose incumbents are not 
provided for therein, that the Legislature may act, under the power given 
it by Mass. Const., pt. 2d, c. I, § I, art. IV, to set up such qualifications. 
Opinion of the Justices, 138 Mass. 601, 603. Taft v. Adams, 3 Gray, 126. 
Wood V. Election Commissioners of Cambridge, 269 Mass. 67, 69, 70. 

It was stated in an exhaustive opinion by one of my predecessors in 
office that, although the Legislature might enact a law with relation to 
the qualifications of the Attorney General, which merely required, with 
regard to the possession of qualifications, such qualifications as the Con- 
stitution had already impliedly established for such officer, yet it was not 
within the power or province of the General Court to pass any law which 
would (as does the proposed bill) add to the qualifications for the office 
required b}' the Constitution. VII Op. Atty. Gen. 44. 

Accordingly, since the Constitution itself, by Mass. Const. Amend. 
XVI, has established the qualifications for the office of councillor, and 
the instant bill purports to add thereto new qualifications of residence in 
the district in which the councillor seeks election, and of residence therein 
during his term of office, I am of the opinion that the proposed bill, if 
enacted into law, would be unconstitutional. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Supervisor of Marine Fisheries — Director of the Division of Fisheries and 
Game — Respective Powers. 

May 2, 1939. 
Hon. Ernest J. Dean, Commissioner of Conservation. 

Dear Sir: — I am in receipt from j^ou of the following letter: — 

" I respectfully request your opinion on the following matter. 
St. 1935, c. 324, imposes certain powers and duties upon the Supervisor 
of Marine Fisheries in the Division of Fisheries and Game. 



64 P.D. 12. 

Under the provisions of G. L. (Ter. Ed.) c. 21, § 8A, the general powers 
and duties of the Supervisor of Marine Fisheries are outhned. The section 
also states: 'provided, however, that in carrying out all powers and duties 
conferred upon him the supervisor shall act with the approval of the 
director.' 

I would like your opinion, therefore, as to whether or not said section 
8A applies to the operation of said chapter 324 even though the latter is 
the latest enactment of the Legislature, and whether all the acts of the 
Supervisor, under said chapter 324, are subject to the approval of the Di- 
rector of the Division of Fisheries and Game." 

In an opinion which I rendered to you on February 2, 1938 (not pub- 
lished), I stated, with relation to the effect of section 8A of G. L. (Ter. Ed.) 
c. 21, as amended: — 

"The powers which are vested in the Supervisor of Marine Fisheries by 
section 8A of said chapter 21 are to be exercised 'with the approval of the 
director.' This gives to the Director a power with relation to the acts of 
the Supervisor very like that which you yourself have over the acts of the 
Director and the Supervisor, and this applies to actions and powers of the 
latter-named officers created by statutes subsequent to the enactment of 
said section 3 and said section 8A of said G. L. (Ter. Ed.) c. 21, as 
amended." 

Accordingly, it follows that the powers vested in the Supervisor by St. 
1935, c. 324, to which you now specifically direct my attention, are 
governed by the terms of said G. L. (Ter. Ed.) c. 21, § 8A, and that, in 
accordance with said terms, the Supervisor is required to act in carrying out 
his duties under said St. 1935, c. 324, "with the approval of- the director." 
There is nothing in the phraseology employed by the Legislature in said 
St. 1935, c. 324, which specifically repeals, or indicates an intent to repeal 
by implication, the provisions of said G. L. (Ter. Ed.) c. 21, § 8A, with 
relation to the requirement for the approval of the Director of the actions 
of the Supervisor done under said St. 1935, c. 324. Said chapter 324 
merely authorizes the Supervisor to perform certain acts, make certain 
determinations and establish certain rules. In doing these things, however, 
he is still limited by the requirement for approval of the Director under 
said chapter 21, section 8A. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Feeble-minded Persons — Commitment to Belchertown State School. 

May 4, 1939. 

Dr. Clifton T. Perkins, Commissioner of Mental Health. 

Dear Sir: — There is nothing in the context of sections 50 and 51 of 
G. L. (Ter. Ed.) c. 123, which indicates any "contrary intention" that the 
definition of "insane person," as set forth in G. L. (Ter. Ed.) c. 4, § 7, shall 
not be applicable to "any insane person" mentioned in their provisions. 
This being so, a feeble-minded person will be comprehended within the 
scope of "insane person" as employed in said sections 50 and 51. Con- 
sequently, a justice of a district court has authority, under the terms of 
section 10 and said sections 50 and 51 of said chapter 123, to commit to the 
Belchertown State School. This is further made plain by the specific 
mention of said school in section 51. 



P.D. 12. 65 

"Any judge of probate, within his county, upon written application," 
has also authority to commit to said school any person residing or being 
within the judge's county who is a proper subject for such school. G. L. 
(Ter. Ed.) c. 123, § 66. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Superintendent of Buildings — Capitol Police. 

May 9, 1939. 
Mr. Fred H. Kimball, State Superintendent of Buildings. 

Dear Sir: — I am in receipt from you of the following request for my 
opinion : — 

"St. 1938, c. 249, changes the designation of 'watchmen' in this depart- 
ment to 'capitol police officers.' 

The statute states that the Superintendent of Buildings may arm his 
capitol police. These police officers are now armed with revolvers and 
clubs. 

1. I would like to know whether this may be extended to include 'hand- 
cuffs and twisters and such other weapons as are necessary in the perform- 
ance of their duties,' as is authorized by St. 1938, c. 296, in reference to a 
sheriff, deputy sheriffs and special sheriffs. 

2. It has never been deemed necessary to swear in these officers, either 
as watchmen or capitol police officers. The question has now arisen as to 
whether or not they should be sworn in as police officers, the same as is 
done with members of other police departments." 

G. L. (Ter. Ed.) c. 8, § 12, as most lately amended by St. 1938, c. 249, 
§ 0, provides, among other matters: — 

"The superintendent may arm his capitol police ..." 

This provision gives you power, in the exercise of your sound judgment, 
to furnish the capitol police with such arms as are usually necessary for the 
performance of the type of duty which they may be called upon to per- 
form. No specific arms are mentioned in this section, but should you 
deem handcuffs and twisters necessary as such, it could not be said that 
you were exceeding your authority in providing them. In St. 1938, c. 296, 
with relation to sheriffs, to which you have directed my attention, hand- 
cuffs and twisters are treated by the Legislature as weapons suitable for 
peace officers; and inasmuch as no particular weapons are dealt with by 
the General Court in granting you authority to "arm" the capitol pofice, 
it would not be unreasonable for you to include handcuffs and twisters as 
weapons with which to arm them. 

It would seem that these "capitol police" provided for by section 4 of 
said chapter 8, as amended, having the same power to make arrests under 
certain designated circumstances as the State police officers, are "police 
officers" and hence State officers. Kimball v. Boston, 1 AUen, 417; Hatha- 
way V. Everett, 205 Mass. 246; Riopel v. Worcester, 213 Mass. 15, 17. 
Accordingly, they should properly be sworn before entering upon their 
duties, as is the general practice with respect to policemen. See Mass. 
Const. Amend. VI. 

Very truly yours, 

Paul A. Dever, Attorney General. 



66 P.D. 12. 

Constitutional Law — Workmen's Compensation — Constitutionality of a 
Proposed Compidsory Statute. 

May 10, 1939. 

Hon. Albert Cole, Senate Chairman, Committee on Labor and Industries. 

Dear Sir: — You have asked my opinion as to the legahty and consti- 
tutionahty, if enacted into law, of current House Bill No. 42, entitled "An 
Act making workmen's compensation insurance compulsory upon em- 
ployers instead of elective, as heretofore." 

This bill proposes to amend G. L. (Ter. Ed.) c. 152, entitled "Work- 
men's Compensation," by inserting the following new section: "Section 4A. 
Every employer shall provide for the payment of compensation insur- 
ance in accordance with the provisions of this chapter and in the manner 
therein provided." 

It is provided that the act shall take effect July 1, 1939. 

In my opinion, the bill, if enacted, will be valid and constitutional. 

The Workmen's Compensation Act, as originally enacted by St. 1911, 
c. 751, was elective on the part of both employer and employee. The 
employer who elected not to insure, however, was, in case of an action 
against him to recover for personal injuries or death of an employee, de- 
prived of his common law defences of contributory negligence, negligence 
of a fellow servant, and assumption of risk (§ 66). It was believed that 
this provision would leave nonsubscribing employers in such a disadvan- 
tageous position that hardly any employer could afford not to accept the 
insurance provisions of the act. Greem v. Cohen, 298 Mass. 439. 

The act was also elective on the part of the employee, who was entitled 
at the time of his contract of hire to give his employer written notice that 
he claimed his common law rights (§ 24). 

For a considerable period most of the larger employers and many of 
the small employers carried compensation insurance, and it "began to 
look as if it would become universal and statewide," but since the depres- 
sion employers in great number have omitted to carry workmen's com- 
pensation coverage; so that the original purpose of the denial of the com- 
mon law defences to nonsubscribing employers is in danger of becoming 
entirely frustrated. This situation is fully discussed in an article by 
Samuel B. Horovitz and Joseph Baer, entitled "Would a Compulsorj^ 
Workmen's Compensation Act without Trial by Jury be Constitutional 
in Massachusetts," in 18 B. U. Law Review, 1. The situation was called 
to the attention of the Legislature in the Report of the Attorney General 
for the year ending November 30, 1938 (Pub. Doc. No. 12) at pp. 8-9. 

With respect to the elective feature of the act on the part of employees, 
that has proved entirely illusory. The authors of the article just referred 
to, who have had wide experience in the administration of the act, state 
that to their knowledge no employee has ever ventured to assert his com- 
mon law rights (p. 35). 

The commission appointed under Resolves of 1910, chapter 120, to de- 
termine upon a plan of workmen's compensation insurance, recommended 
the elective act rather than a compulsory act, because of a doubt enter- 
tained by a majority of the commission that the courts would sustain the 
constitutionality of a compulsory act. This doubt was occasioned prin- 
cipally by the decision of the New York Court of Appeals in the case of 
Ives V. South Buffalo Ry. Co., 201 N. Y. 271, holding a compulsory act 
unconstitutional. The Honorable James A. Lowell, late judge of the 



P.D. 12. 67 

United States District Court, favored a compulsory act and submitted a 
strong minority report arguing in favor of the constitutionality of such 
measure. Report of the Commission on Compensation for Industrial 
Accidents, July 1, 1912, c. VI, "Consideration of a Compulsory Law for 
Massachusetts," pages 95-108. 

Since the enactment of the Massachusetts statute many States have 
adopted compulsory acts, almost all of which have been declared consti- 
tutional. The following States have compulsory compensation acts: 
Arizona, Cahfornia, Idaho, Illinois, Indiana, Maryland, Minnesota, New 
York, North Dakota, Ohio, Oklahoma, Texas, Utah, Washington, Wis- 
consin and Wyoming. Several of these acts have been before the United 
States Supreme Court, which has uniformly sustained their constitution- 
ality. New York Central Railroad v. White, 243 U. S. 188 (New York 
act); Mountain Timber Co. v. Washington, 243 U. S. 219 (Washington 
act); Arizona Employers' Liability Cases, 250 U. S. 400 (Arizona act); 
Ward & Gow v. Krinsky, 259 U. S. 503 (New York act) ; Madera Sugar 
Pine Co. v. Industrial Accident Commission of California, 262 U. S. 499 
(California act) ; and see Crowell v. Benson, 285 U. S. 22 (Federal Long- 
shoremen's and Harbor Workers' Compensation Act). 

The earlier cases which came before the United States Supreme Court 
involved statutes applicable only to employments described as hazardous, 
which in that respect differ from the Massachusetts statute, which applies 
to all employments with the exception of domestic servants and farm 
laborers (§ 67). In considering whether such statutes were arbitrary and 
unreasonable "from the standpoint of natural justice," the court observed 
that thev applied only to injuries received in the course of hazardous em- 
ployment (New York Central Railroad v. White, 243 U. S. 188, 202, 203), 
concluding that a State, in the exercise of its police power to promote the 
health, safety and general welfare of its people, might regulate the carry- 
ing on of industrial occupations that frequently and inevitably produce 
personal injuries and disability among employees, and may require that 
these human losses shall be charged against the industry. Mountain Tim- 
ber Co. V. Washington, 243 U. S. 219, 243, 244. 

In Ward & Gow v. Krinsky, 259 U. S. 503, in dealing with an extension 
of the New York Compensation Act to all employments in which four or 
more workmen (farm laborers and domestic servants excepted) are regu- 
larly employed, even though not emploj^ed in the same place, the court up- 
held the extension, although conceding that the occupational hazard was 
extended "to the vanishing point" (p. 520). The court recognized that 
there might be an actual inherent hazard merely in the presence of four or 
more workmen being together (p. 523), and illustrated the extent to which 
occupational hazards might go by the example of a clerk who was injured 
because of a defect in a chair in which she was sitting (p. 524). Justices 
McReynolds and McKenna dissented, on the ground that the act really 
ignored occupational hazards, and that if "hazardous occupations" was 
not a mere empty phrase the law could not be upheld (p. 528). The court 
expressly left open the question of the validity of a compulsory act which 
was not limited to hazardous occupations, saying, at page 519: "Any ques- 
tion about the validity of an act purporting to impose compulsory liability 
upon employers for losses due to occupational hazards where there really 
are no occupational hazards, may safely be left until such a case is pre- 
sented." 

Since then the court has had two such cases presented involving the 



68 P.D. 12. 

powers of the States and of the Federal government, Madera Sugar Pine 
Co. V. Industrial Accident Commission of California, 262 U. S. 499; and 
Crowell V. Benson, 285 U. S. 22. 

Cahfornia enacted a compulsory act (the so-called Boynton Act), in 
1913, which covered all employers and employees coming within its terms, 
without respect to hazardous employment. The act was sustained as con- 
stitutional in Western Indemnity Co. v. Pillsbury, 170 Cal. 686, the court 
saying : — 

"We have not overlooked the circumstance that the Boynton Act, unUke 
some of the other statutes to which we have referred, does not limit the 
newly created scheme of compensation to specially enumerated industries, 
selected as and declared to be extra-hazardous in character. We do not 
conceive that this difference has any real bearing upon the constitutional 
questions heretofore discussed. The legislative power to impose the lia- 
bility upon an employer who is without fault does not, in the view of the 
courts which have dealt with the subject, rest upon the consideration that 
the particular employer is conducting an industry in which injury is more 
likely to result than in some other. If the burden may be imposed upon 
any employer conducting a lawful and necessary industry, it may be im- 
posed upon all who are conducting industries in which, in the judgment of 
the Legislature, the public welfare requires this measure of protection." 

The California act came before the United States Supreme Court in 
Madera Sugar Pine Co. v. Industrial Accident Commission of California, 
262 U. S. 499, where the principal question considered was whether the 
act was unconstitutional on the ground that it provided compensation for 
nonresident alien dependents of an injured or deceased employee. The 
court in its opinion noted that the act was compulsory and applicable to 
all employments, irrespective of hazards, saying: — 

" This is a compulsory compensation act, establishing in all except certain 
employments, an exclusive system governing compensation for injuries 
to employees resulting in disability or death. By its terms liability exists 
against an employer for the compensation therein provided, in lieu of any 
other liability whatsoever to any person, and 'without regard to negli- 
gence,' for any injury sustained by his employees, including aliens, arising 
out of and in the course of the employment, not caused by their intoxica- 
tion or intentionally self-inflicted; ..." 

In upholding the act the court stated the ground upon which its earlier 
decisions rested, as follows (p. 501) : — 

"This court has in several cases sustained the constitutionality of work- 
men's compensation acts from which the California Act in its constitutional 
aspects is not distinguishable, establishing exclusive systems governing 
the liabilities of employers in hazardous occupations in respect to compen- 
sation for industrial accidents to employees resulting in disability or death, 
and requiring compensation to be paid to a disabled employee or to his sur- 
viving dependents in accordance with prescribed scales gauged upon the 
previous wage and the extent of the disability or dependency. New York 
Central Railroad v. White, 243 U. S. 188 ; Mountain Timber Co. v. Washing- 
ton, 243 U. S. 219 ; Ward & Gow v. Krinsky, 259 U. S. 503. And see Arizona 
Employers' Liability Cases (Arizona Copper Co. v. Hammer), 250 U. S. 400. 
These acts were sustained in their entirety, . . . upon the broad ground 
that the State, by reason of its public interest in the safety and lives of 



P.D. 12. 69 

employees engaged in such occupations, may provide, in the just and 
reasonable exercise of its police power, that the loss of earning power sus- 
tained b}' an employee through an industrial accident resulting in his dis- 
ability or death, constituting a loss arising out of the business and an ex- 
pense of its op(n-ation, shall, in effect, be charged against the industry after 
the manner of casualty insurance, and to that end require the emploj'er to 
make such compensation as may reasonably be prescribed for the loss thus 
incurred in the conmion enterprise, irrespective of the question of negli- 
gence, to the injured employee or to his surviving dependents. New York 
Central Railroad v. White (supra, pp. 203, 207); Mountain Timber Co. v. 
Washington (supra, p. 243); Ward d' Gow v. Krinsky (supra, p. 512)." 

The question was again presented in Crowell v. Benson, 285 U. S. 22, 
involving the Federal Longshoremen's and Harbor Workers' Compensation 
Act. The court there said (Hughes, C.J., pp. 41-42) : — 

"Liability without fault is not unknown to the maritime law, and, apart 
from this fact, considerations are applicable to the substantive provisions 
of this legislation, with respect to the relation of master and .servant, 
similar to those which this Court has found sufficient to sustain workmen's 
compensation laws of the States against objections under the due process 
clause of the Fourteenth Amendment." 

In view of the greatly widened conception of the scope of the police power 
as now held by the majority of the United States Supreme Court, particu- 
larly as enunciated in such cases as Nebhia v. New York, 291 U. S. 502, 
West Coast Hotel Co. v. Parrish, 300 U. S. 379, Carmichael v. Southern Coal 
d- Coke Co., 301 U. S. 495, and Steward Machine Co. v. Davis, 301 U. S. 
548, I am of opinion that that court would hold that the imposition of lia- 
bility without fault upon employers, irrespective of the employment being 
of hazardous character, with the requirement that insurance be furnished 
therefor as proposed by House Bill No. 42, is not in violation of the pro- 
visions of the Federal Constitution. 

I am also of opinion that the act would be sustained by the Massachu- 
setts Supreme Judicial Court, which also has adopted the more modern 
conception of the scope of the police power, as evidenced by its decision 
in Howes Brothers Co. v. Unemployment Compensation Commission, 296 
Mass. 275. In that case, in upholding the Massachusetts Unemployment 
Compensation Law, and with particular respect to the exaction of con- 
tributions from all emplovers, the Supreme Judicial Court said (Rugg, 
C.J.): — 

"Many laws which interfere to some extent with freedom of contract 
and which cause additional expense to individuals have been upheld as 
valid exertions of the police power. 

Workmen's compensation acts have been supported as an exercise of the 
police power. Their effect is to impose on the designated classes of em- 
ployers of labor the burden of compensation for injuries to employees 
arising out of and in the course of their employment, leaving the employer 
to reimburse himself for the expense as a part of the cost of his product. 
Young v. Duncan, 218 Mass. 346, 349, 353. New York Central Railroad v. 
White, 243 U. S. 188. Mountain Timber Co. v. Washington, 243 U. S. 219. 
Arizona Employers'' Liability Cases, 250 U. S. 400. In reason it is difficult 
to distinguish these decisions from the cases at bar. 

The principle is familiar that, within reasonable limits, the legislative 
department of government in mitigation of a public evil may place the cost 



70 P.D. 12. 

on those in connection with whose business the evil arises. Statutes have 
been sustained providing for the collection of a percentage of deposits from 
State banks for the purpose of creating a guaranty fund to pay losses caused 
to depositors by the insolvency of any such banks. Noble State Bank v. 
Haskell, 219 U. S. 104. Abie State Bank v. Bryan, 282 U. S. 765. Lowell 
Co-operative Bank v. Co-operative Central Bank, 287 Mass. 338. Opinion 
of the Justices, 278 Mass. 607. Statutes have also been held valid making 
railroads liable in damages for injuries sustained by a passenger regardless 
of negligence, Chicago, Rock Island & Pacific Railway v. Zernecke, 183 U. S. 
582 ; imposing on railroads the cost of examination to determine whether 
a locomotive engineer is free from color blindness, Nashville, Chattanooga 
& St. Louis Railway v. Alabama, 128 U. S. 96; requiring owners of dogs to 
contribute to a fund for compensation to those whose sheep have been 
killed or injured by dogs, McGlone v. Womack, 129 Ky. 274, Cole v. Hall, 
103 111. 30 (see Nicchia v. New York, 254 U. S. 228) ; and laying upon fire 
insurance agents the obligation to contribute to a fund to care for sick and 
injured firemen, Firemen's Benevolent Association v. Lounsbury, 21 111. 511, 
Fire Department of Milwaukee v. Helfenstein, 16 Wis. 136. To the same 
general effect are Head Money Cases, 112 U. S. 580, Cooley v. Board of War- 
dens, 12 How. 299, and Dayton-Goose Creek Railway v. United States, 263 
U. S. 456. See Nebbia v. New York, 291 U. S. 502, 526-530, for an exten- 
sive collection of authorities. The principle on which these decisions rest 
goes far to uphold the main features of the statute here assailed." 

The proposed measure comes fairly within the principle above stated by 
the late Chief Justice. The requirement of compulsory insurance against 
injuries arising out of and in the course of employment is similar in principle 
to the exaction of contributions from employers to provide against unem- 
ployment and old age, and is supported by the same considerations of pub- 
lic welfare. 

In some respects, also, it resembles compulsory motor vehicle insur- 
ance, provided for by G. L. (Ter. Ed.) c. 90, §§ 34A-34J, which the justices 
held constitutional in Opinion of the Justices, 251 Mass. 569. In that 
opinion the justices pointed out the similarity, saying (pp. 598-599) : — 

"... There are several States in the Union where workmen's com- 
pensation acts are compulsory instead of optional. Under those statutes 
the payment of compensation to the injured employee is secured in whole 
or in part by provisions for compulsory insurance by the employer. Such 
statutes have been upheld as not violative of the Constitution of the United 
States. New York Central Railroad v. White, 243 U. S. 188. Hawkins v. 
Bleakly, 243 U. S. 210. Mountain Timber Co. v. Washington, 243 U. S. 219. 
Middleto7i v. Texas Power d- Light Co. 249 U. S. 152. Such a requirement 
for insurance by employers as security for personal injury to their employees 
seems to us a greater stretch of legislative power than is contemplated by 
the proposed bill." 

The broad ground on which workmen's compensation acts are sup- 
ported was recently stated by the court in Akins's Case, 302 Mass. 562, 
567 (per Ronan, J.), as follows: "Legislation for the protection of those 
who have sustained injuries while engaged in industry is a matter affecting 
the general public interest." Citing Young v. Duncan, 218 Mass. 346; 
Howes Brothers Co. v. Unemployment Compensation Commission, 296 Mass. 
275; Mountain Timber Co. v. Washington, 243 U. S. 219; Carmichael v. 



P.D. 12. 71 

Southern Coal tO Coke Co., 301 U. S. 495; Steward Machine Co. v. Davis, 
301 U. S. 548. 

The proposed amendment, in my opinion, does not infringe article XV 
of the Declaration of Rights, which guarantees a trial by jury "in all con- 
troversies concerning property, and in all suits between two or more 
persons, except in cases in which it has heretofore been otherways used 
and practiced." 

The constitutional right to jury trial is confined to proceedings "ac- 
cording to the course of the common law." Kempton v. Saunders, 130 
Mass. 236; French v. Brarj, 263 Mass. 121; Opinion of the Justices, 237 
Mass. 591, 596. So it does not apply to proceedings in equity, Stockhridge 
Iron Co. V. Hudson Iron Co., 102 Mass. 45; Carleton v. Rugg, 149 Mass. 
550, 554; Parker v. Simpson, 180 Mass. 334, 345, 346; Commissioner 
of Banks v. Harrigan, 291 Mass. 353; or to proceedings which although 
"on the law side of the court" are nevertheless "more after the analogies 
of equity than of the common law," Holmes, J., in Crocker v. Cotting, 173 
Mass. 68; to proceedings in the Probate Court, French v. Bray, supra; 
or to bankruptcy or insolvency proceedings, Kempton v. Saunders, supra; 
or to cases of marriage, divorce, alimony and separate support, Bucknam 
V. Bucknam, 176 Mass. 229. The United States Supreme Court has 
recently held, in National Labor Relations Board v. Jones & Laughlin Steel 
Corp., 301 U. S. 1, that the Seventh Amendment does not apply to pro- 
ceedings before the National Labor Relations Board, saying, per Hughes, 
C.J. (pp. 48^9): — 

"It (the Seventh Amendment) does not apply where the proceeding 
is not in the nature of a suit at common law. Guthrie National Bank v. 
Guthrie, 173 U. S. 528, 537. 

The instant case is not a suit at common law or in the nature of such 
a suit. The proceeding is one unknown to the common law. It is a statu- 
tory proceeding. Reinstatement of the employee and payment for time 
lost are requirements imposed for violation of the statute and are remedies 
appropriate to its enforcement." 

The Workmen's Compensation Act, as between employer and the 
emploA'ee who elects its benefits, abolishes all common law and statutory 
rights of action, substituting therefor a system of money payments without 
relation to fault, and sets up an administrative agency, the Industrial 
Accident Board, to administer the act. This was recognized by the Su- 
preme Judicial Court in Devine's Case, 236 Mass. 588, where the court, 
speaking through Rugg, C.J., said (pp. 592-594) : — ■ 

"... The general purpose of the workmen's compensation act was to 
substitute in cases to which it is applicable, for common law or statutory 
rights of action and grounds of liability, a system of money payments, 
based upon the loss of wages, by way of relief for workers or dependents of 
workers who receive injury in the course of and arising out of their em- 
plo3^ment. . . . The payments provided by the act are founded simply 
upon such injury and have no relation to any theory of fault on the part 
of the employer or right on the part of the employee either in tort or con- 
tract established by law prior to the passage of the act. All paj'ments are 
by way of financial relief for inability to earn wages, or for deprivation of 
support flowing from wages theretofore received. The word 'compensa- 
tion,' in the connection in which it is used in the act, means the money 
relief afforded according to the scale established and for the persons desig- 



72 P.D. 12. 

nated by the act, and not the compensatory damages recoverable in an 
action at law for a wrong done or contract broken. . . . The rights of 
the employee under the act rest neither in negligence nor contract. They 
arise wholly out of the workmen's compensation act. That act estab- 
lishes a status for those subject to its provisions from which flow certain 
obligations and rights for employer, employee and insurer. Those obliga- 
tions and rights, so far as the employee is concerned, are susceptible of 
enforcement exclusively through the procedure set forth in the act. . . . 
The committee on arbitration and the Industrial Accident Board are 
purely administrative tribunals created solely to administer the work- 
men's compensation act in aid to the courts. . . ." 

Accord: Greem v. Cohen, 298 Mass. 439. 

We have, therefore, the situation which the United States Supreme 
Court recognized in Mountain Timber Co. v. State of Washington, 243 
U. S. 219, where it said (p. 235): "As between employee and employer, 
the act abolishes all right of recovery in ordinary cases, and therefore 
leaves nothing to be tried by jury." 

In Cunningham v. Northwestern Improvement Co., 44 Mont. 180, the 
court said : "The adjustment of claims under the act is an administrative 
function and not a judicial proceeding, and it is only in certain cases falling 
under the latter designation that trial by jury is guaranteed by the Con- 
stitution." 

In Grand Trunk Western Ry. Co. v. Industrial Commission, 291 111. 167, 
the court said : — 

"Our Constitution provides that the right of trial by jury as heretofore 
enjoyed shall remain inviolate, but it guarantees that right only to those 
causes of action recognized by law. The act here in question takes away the 
cause of action on the one hand and the ground of defense on the other 
and merges both in a statutorj^ indemnity fixed and certain. If the power 
to do away with a cause of action in any case exists at all in the exercise 
of the police power of the state, then the right of trial by jury is therefore 
no longer involved in such cases. The right of jury trial being incidental 
to the right of action, to destroy the latter is to leave the former nothing 
upon which to operate." 

In State v. Clausen, 65 Wash. 156, the court said: — 

"The right of trial by jury accorded by the constitution, as applicable 
to civil cases, is incident only to causes of action recognized by law. The 
act here in question takes away the cause of action, on the one hand, and 
the ground of defense, on the other; and merges both in a statutory in- 
demnity, fixed and certain. If the power to do away with a cause of 
action in any case exists at all, in the exercise of the police power of the 
state, then the right of trial by jury is thereafter no longer involved in 
such cases. The right of jury trial being incidental to the right of action, 
to destroy the one is to leave the other nothing upon which to operate." 

Accord: Adams v. Iten Biscuit Co., 63 Okla. 52; Zancanelli v. Central 
Coal & Coke Co., 25 Wyo. 511; Crowell v. Benson, 285 U. S. 22, 45; Bradij 
v. Place, 41 Idaho, 747, 751; Grant Coal Mining Co. v. Coleman, 204 Ind. 
122. See also "The Constitutionality of Compulsory Workmen's Com- 
pensation Acts" by Samuel B. Horovitz and Josephine H. Klein, Bulletin 
No. 24, U. S. Department of Labor; 71 C. J. 285, Tit. Workmen's Com- 
pensation Act, § 32. 



P.D. 12. 73 

State regulation of rates, with full opportunity for hearing and recourse 
to the courts upon review, is provided for by sections 52 to 55 of said 
chapter 152. The employer cannot, therefore, complain that he may be 
subject to confiscatory rates. 

For the reasons stated, I am of opinion that the proposed act is con- 
stitutional. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Janitor. 

May 13, 1939. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

Dear Sir: — Replying to your recent letter relative to the janitor of the 
American Legion Building in Brookline, from the facts which you have 
laid before me it would appear that such janitor is the employee of the 
American Legion and Veterans of Foreign Wars, and not of the town. 

Although you state that the janitor is paid by checks issued by the town 
treasurer, the same are charged to an appropriation which apparently 
covers the expense of the maintenance of the headquarters of such organi- 
zations, including the necessary services of the janitor performed for such 
organizations. 

The other facts which you have stated relative to his employment are 
such as do not bring him within the sweep of Civil Service Rule 14, section 
1, which is applicable only to those in the public service occupying with a 
political subdivision the relative relations of employer and employee. 

\^ery truly yours, 

Paul A. Dever, Attorney General. 

Commission on Administration and Finance — Advice and Assistance on 

Contracts. 

May 18, 1939. 

Hon. Eugene C. Hultman, Commissioner, Metropolitan District Commis- 
sion. 

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

"1. Has the Commission on Administration and Finance authority to 
change the architecture and design of a building, in order to reduce the cost 
of said building, when the construction would be within the appropriation 
authorized by the Legislature? 

2. Does the Metropolitan District Commission have to submit plans 
and specifications of its proposed buildings, when authorized by the Legis- 
lature as a special unit or as part of a large construction project, to the 
Commission on Administration and Finance for approval? " 

Your inquiry has particular reference to St. 1938, c. 497, "An Act in 
addition to the general appropriation act ..." Item 727c thereof 
provides : — 

"For the construction of a public sanitary on the Winthrop Shore res- 
ervation, as authorized by chapter three hundred and ninetj'-three of the 
acts of the present year, a sum not exceeding twenty thousand dollars, 



74 P.D. 12. 

to be assessed as part of the cost of maintenance of parks reservations, 
$20,000 00" 

Your letter further states the facts to be as follows : — 

"As directed by the Commission on Administration and Finance, plans 
and specifications of all buildings, whether drawn by competent consulting 
architects or employees of the Metropolitan District Commission, have 
been submitted to said Commission for approval before contracts are 
awarded even though authorization of the Legislature has been received. 
It is understood that the said Commission refers the plans and specifica- 
tions to its consultant engineer for his approval. This procedure was fol- 
lowed in the case of the plans and specifications for the sanitary at Win- 
throp. The plans were returned by the Chairman of said Commission 
with a request that the Metropolitan District Commission make a change 
in the design, which the said Chairman claimed would reduce the cost of 
the building considerably. Our engineers, after careful analysis, found 
that only $500 would be saved, and I feel that the distinctive architecture 
of the building would be ruined. No criticism or change of the proposed 
construction details was offered." 

There is no statute which authorizes the Commission on Administration 
and Finance to change the architecture and design of the building in order 
to reduce its cost when the construction would be within the appropriation 
authorized by the Legislature, nor is the MetropoHtan District Commis- 
sion obliged by any statutory provision to submit plans and specifications 
of its proposed buildings, when they are authorized by the Legislature as a 
special unit or as part of a large construction project, to the Commission on 
Administration and Finance for its approval. 

The categorical answer to j^our two questions is, therefore, in the nega- 
tive. 

But St. 1938, c. 497, contains, in section 4, a provision which seems to be 
common to the appropriation acts : — 

"No payment shall be made or obligation incurred under authority of 
any special appropriation made by this act for construction of public 
buildings or other improvements at state institutions until plans and speci- 
fications have been approved by the governor, unless otherwise provided 
by such rules and regulations as the governor may make." 

Under this statute it is obligatory on your Commission to submit your 
plans and specifications to the Governor for his approval, unless he pro- 
vides otherwise by rules and regulations, and his approval is a condition 
precedent to the making of any payments or the incurring of any obligations 
under authority of the special appropriation made by the act. 

It is my understanding that it is the practice of the present Governor, 
when plans and specifications are submitted to him under the foregoing 
statute, to refer them to the Commission on Administration and Finance 
for its advice and assistance. It is only in this way that, as a practical 
matter, the approval of that Commission may become necessary. 

It is clearly within the Governor's authority to seek advice of the Com- 
mission, if he wishes, to assist him in passing upon plans and specifications 
before indicating his approval or disapproval thereof. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 75 

Civil Service — Commissioner — Marking of Examinations. 

May 20, 1939. 
Hon. Thomas H. Green, Commissioner of Civil Service. 

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

"I respectfully request an opinion on the following question: — Whether 
or not it is legal for the Civil Service Department to hold up the markings 
and results of noncompetitive examinations which have been authorized 
several months ago." 

The Commissioner of Civil Service, as the officer vested with the powers 
of "the executive and administrative head of the division" of civil service 
(G. L. [Ter. Ed.] c. 13, § 2), and as having had specifically vested in him 
by the Legislature the power of "direction" of the conduct of examinations 
of applicants for offices and positions coming within the sweep of the Civil 
Service Law and Rules (G. L. [Ter. Ed.] c. 31, § 10), has the authority 
and the duty imposed upon him to cause examinations of all kinds, given 
under the provisions of the Civil Service Law and Rules, to be marked, 
and notice of such marking to be given seasonably to the respective appli- 
cants. Civil Service Rule 10. The performance of this duty devolves 
solely upon the Commissioner. 

The applicants have a right, arising out of the requirements of the Civil 
Service Law and Rules for the passing of examinations, to have their 
examinations marked within a reasonable time, and to have notice of such 
marking given them, under said Rule 10, within a reasonable period. 
As correlative to the duties and powers vested solely in the Commissioner 
with relation to the direction of the conduct of examinations, to which 
I have referred, applicants for offices or positions have a right to the per- 
formance of such duties by him in such a manner as will secure the marking 
of their examinations within a reasonable time, and notification of the 
result thereof likewise within a reasonable length of time from the taking 
of any of such examinations. 

Your question implies that the marking and notification of the results 
of certain examinations provided for by the Civil Service Law and Rules 
have been delayed for some reason not connected with, or necessary to, 
the regular and efficient performance of such duty. The phrase "to hold 
up the markings and results," as used in your letter, appears to indicate 
that there has been something more than a reasonable delay in the per- 
formance of such duty. As I have indicated, the duty of marking and 
notification should be performed within a reasonable time from the taking 
of the examination, and, if that has not been done, the further duty de- 
volves upon you to cause marking and notification to be made and per- 
formed forthwith. An unreasonable delay in regard to marking and noti- 
fication cannot well be termed "legal," as the word is used in your said 
letter. 

Very truly yours, 

Paul A. Dever, Attorneij General. 



76 P.D. 12. 

Constitutional Law — Constitutionality of a Proposed Statute preventing 
Aliens from practicing Medicine or Dentistry. 

May 26, 1939. 

Hon. George W. Roberts, Chairman, House Committee on Bills in the 

Third Reading. 

Dear Sir : — I am in receipt from you of the following letter relative 
to the constitutionality, if enacted into law, of House Bill No. 2304, as 
amended, entitled "An Act to prevent aliens from practicing medicine": — 

"The House Committee on Bills in the Third Reading respectfully 
requests your opinion in writing as to whether or not House No. 2304, 
amended, entitled 'An Act to prevent aliens from practicing medicine,' 
would, if passed, violate any provision of the Constitution of the Com- 
monwealth or of the United States. 

If your answer to the foregoing question is in the affirmative, would 
your answer be the same if the provisions in said bill affecting physicians 
and dentists already registered were omitted?" 

The bill, as amended, prohibits both the Board of Registration in 
Medicine and the Board of Registration in Dentistry from examining 
any candidate for registration as a practitioner of either of the named 
professions unless he has declared his intention of becoming a citizen. 
Since it is forbidden by G. L. (Ter. Ed.) c. 112, to practice either of such 
professions without registration, the bill in effect prohibits aliens who 
have not declared their intention to become citizens from engaging in 
the practice of either of these professions. 

The practice of these professions may be drastically regulated by the 
State, under the police power, in the interests of the public welfare. Com- 
monwealth V. Brown, 302 Mass. 523. 

Although the Fourteenth Amendment to the Constitution of the United 
States has been held to prohibit plainly irrational discrimination against 
aliens {Yick Wo v. Hopkins, 118 U. S. 356; Truaz v. Raich, 239 U. S. 33), 
it has also been said by the Supreme Court of the United States, in Clarke 
v. Deckebach, 274 U. S. 392, 396: — 

"It does not follow that alien race and allegiance may not bear in some 
instance such a relation to a legitimate object of legislation as to be made 
the basis of a permitted classification." 

It cannot be said with certainty that the proper regulation of the pro- 
fessions of medicine and dentistry may not require the exclusion from their 
practice of aliens not yet desiring to become citizens. As a means of safe- 
guarding the public health, safety and welfare, the legislative determina- 
tion, implicit in the terms of the proposed measure, that the associations, 
experiences and interests of members of the disqualified class warrant the 
prohibition against them, "does not," in the language of the United States 
Supreme Court in Clarke v. Deckebach, 274 U. S. 392, 397, "preclude the 
possibility of a rational basis for the legislative judgment." Such being 
the case, it cannot be said that the proposed measure, if enacted into law, 
would be unconstitutional. Coinmonwealth v. Hana, 195 Mass. 262, 265. 
Patsone v. Pennsijlvania, 232 U. S. 138, 145; Trageser v. Gray, 73 Md. 250, 
257; Attorney General's Report, 1934, p. 54. 

I must point out to you, however, that in so far as the prohibition of this 
proposed measure conflicts, or may in the future conflict, with any treaty 



P.D. 12. 77 

of the United States which may be construed to give to the citizens of 
any particuhir foreign country the same right to practice either of the 
designated professions as is accorded to our own citizens, the proposed 
measure, if enacted into law, will be invalid and nonoperative with rela- 
tion to any such foreign citizens while protected by the terms of any such 
treatv. U. S. Const., art. II, § 2. Asakura v. Seattle, 265 U. S. 332, 341. 
Maiorano v. Baltimore ct Ohio R. R. Co., 213 U. S. 268, 272. Todok v. 
Unio7i State Bank, 281 U. S. 449, 453. Jordan v. Tashiro, 278 U. S. 123. 
Attorney General's Report, 1938, p. 56. 

I answer the question in the second paragraph of your letter to the 
effect that, even if the omission suggested therein should be carried out, 
I should still be of the opinion that the proposed measure, though thus 
changed, if enacted into law would be constitutional. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Parole Board — -Authority to reconsider Applicatio7i for Parole of a 

Prisoner. 

May 26, 1939. 
Hon. Ralph W. Robart, Chairman, Parole Board. 

Dear Sir : — You ask my opinion, in effect, as to whether your Board 
has authorit}^ under the provisions of G. L. (Ter. Ed.) c. 127, § 154A, to 
consider the case of a prisoner falling within its general terms, even though 
your Board has previously considered it under the terms of section 154 of 
the same chapter. 

I am of the opinion that you have such authority, which you may exer- 
cise in your discretion. Authority is vested in your Board, by said sec- 
tion 154A, to consider such a case upon the Board's own motion, and such 
motion is made mandatory with regard to a case previously unconsidered. 
By the last sentence of the said section it is made plain that it is not manda- 
tory upon the Board to consider such a case which it has previously had 
before it under section 154; but the grant of authority to consider such a 
case as falls generally within the description given by the first sentence 
of said section 154A is not cut off by the phraseology of said last sentence, 
although the peculiar force of the mandate, evidenced by the employment 
of the word "shall" in the first sentence, is mitigated so that the exercise 
of the authority is left to the discretion of the Board. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Motor Vehicle — Operation by a State Employee. 

June 6, 1939. 

Hon. Patrick J. Moynihan, Chairman, Commission on Administration 

and Finance. 

Dear Sir: — You have asked me the following questions: — 

"1. Where an agreement exists between a department head and an 
employee that the latter use his automobile to provide transportation for 
workers on a Federal project, and the employee receives mileage com- 
pensation for the use of the car, does the responsibihty for damage, in case of 
accident, rest with the owner and operator or with the Commonwealth? 



78 P.D. 12. 

2. Does this arrangement place the private employee in the category 
of common carrier? 

3. In case the insurance companies require additional premiums from 
the private automobile owner, may such additional premiums be paid 
out of any contingent fund under the control of the department, or may 
it be paid out of Federal grants made to the department for general health 
purposes?" 

I answer your first question to the effect that the owner and operator 
of the car and not the Commonwealth is liable for damage or injuries caused 
by the operation of an automobile under the circumstances which you have 
described. 

I answer your second' question in the negative. 

I answer your third question to the effect that the premiums you 
refer to cannot be paid out of the appropriation made to the department 
by the Legislature nor out of moneys from a Federal grant "for general 
health purposes." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Newspaper — Publication of Official Notices. 

June 15, 1939. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

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

"Some time ago I discussed informally with one of your assistants the 
matter of giving notice, under the provisions of G. L. (Ter. Ed.) c. 105, 
§ 6, in connection with pubhc warehousemen, by publication in one or 
more newspapers. The publisher of the Boston Marine Guide is desirous 
of having such notices published in that publication. 

Will you kindly inform me whether or not, in your opinion, this is a 
'newspaper' as contemplated by the section referred to." 

G. L. (Ter. Ed.) c. 105, § 6, reads: — 

"The state secretary shall, at the expense of each warehouseman, give 
notice of his license and qualification, of the amount of the bond given 
by him and also of the discontinuance of his license by publishing the 
same for not less than ten days in one or more newspapers, if any, pub- 
lished in the county or town where the warehouse is located; otherwise, 
in one or more newspapers published in Boston." 

The Boston Marine Guide has been published weekly over a consider- 
able number of years, in the form of a single very large sheet, its sub- 
scription rate is substantial, and, I am informed, its circulation is not 
negligible. It is entered as second class matter, since June 5, 1922, in the 
Post Office at Boston. It is definitely devoted, according to its own pub- 
lished statement, to "transportation news of New England and the Port 
of Boston." It contains information as to sailings between Boston and 
domestic and foreign ports, arrivals of vessels, imports, exports, and 
foreign exchange, together with miscellaneous news pertaining to maritime 
affairs and to the port of Boston, all of which are subjects which may be 
called " news " and are of interest to many portions of the public. It carries 
a wide variety of advertisements of shipping lines and of maritime insur- 



P.D. 12. 79 

ance, as well as of warehouse and storage companies. It does not appear 
to make a practice of publishing other news matter of general or local 
interest. 

The word "newspaper," as such, has not been specifically defined by 
our statutes nor bv decisions of the courts of this Commonwealth. See 
G. L. (Ter. Ed.) c.^4, § 6, cl. Eighth. 

As a matter of law a newspaper may be said to be "a publication usu- 
ally in sheet form, intended for general circulation and published regu- 
larly at short intervals, containing intelligence of current events and news 
of general interest." Hull v. King, 38 Minn. 349. 

But it is also held that a publication is none the less a newspaper be- 
cause primarilv devoted to special interests. Burak v. Ditson (Iowa), 
68 A. L. R. 538, 540; Hanscom v. Meyer, 60 Neb. 68; Maass v. Hess, 140 
111. 576: WiUinms v. Cohvell, 14 (App. Div.) N. Y. 26; Slattery v. Dunn, 
18 Ont. Pr. 168; In re Labor Journal, 190 Cal. 500. 

Without attempting to estabhsh a fixed and rigid definition of the word 
"newspaper," appUcable to its use generally when emploj-ed by the Legis- 
lature in varying contexts, I am of the opinion that the Boston Marine 
Guide appears to possess the various characteristics alluded to above to 
such an extent that it falls within the sweep of the legislative intent in 
employing the word ''newspapers" in said section 6 of chapter 105. 

Yevy ivxAy yours, 

Paul A. Dever, Attorney General. 

Department of Public Works — Procedure with Relation to Certain Contracts. 

June 26, 1939. 

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

Dear Sir: — You have asked my opinion as to the proper method of 
procedure to be followed by the Department of Public Works in several 
specified situations. I shall deal with these questions as you have put 
them. 

"First: Under date of November 2, 1938, the Department of Pubhc 
Works, acting under the provisions of St. 1938, c. 505, § 2, item A, entered 
into a contract with a contractor for the reconstruction of a bridge on a 
town way in the town of New Marlborough. Actual work at the site was 
delayed for several reasons, namely, — 

(1) Had the work been started immediately it would have required the 
construction of a temporary bridge at a prohibitive cost, which could be 
avoided by delaying construction until another bridge in the vicinity had 
been completed and opened to travel, to serve as a detour during the con- 
struction of this bridge. 

(2) The original funds set up for the contract were not adequate. 

(3) It was feared by the contractor that the construction of the bridge 
would jeopardize the safety of a mill building adjacent to the site, and he 
was unwilling to proceed until he was relieved of any responsibility for 
damage to the mill building. 

While the town had agreed to assume all land damages in connection 
with the construction of flood bridges, it was felt that this was a particu- 
lar case, and that we should have a specific release from the owners of the 
mill property. However, soon after the execution of the contract, the 



80 P.D. 12. 

contractor did place orders for certain materials, such as structural steel, 
pipe railing, etc., for this bridge. 

A subsequent examination of the structure indicated that it was not 
sufficiently damaged to warrant reconstruction, and it was believed that 
when the waters were low, in summer, it would be possible to repair the 
footings of the bridge and put it in as good condition as before the flood, 
for a greatly reduced sum. 

Accordingly, the contractor was requested to discontinue work under 
his contract, to which he agreed provided he was reimbursed for the actual 
out-of-pocket expense which he had incurred in anticipation of doing the 
work. This included structural steel, pipe rail fence, certain engineering 
expense in connection with plans for cofferdams and a temporary foot- 
bridge. 

Inasmuch as the contract provided only for steel and other materials 
delivered in place, there were no prices in the contract for the furnishing 
of materials and depositing them at points to be designated by the depart- 
ment without being incorporated in any structure. 

The Commissioners, in attempting to pay the contractor for his out- 
of-pocket expense, filed with the Comptroller a 'notice of intention,' as 
required by St. 1937, c. 407, the Commissioners being of the opinion that 
this work came wuthin the provisions of article XVI of the contract, 
relating to extra work." 

Article XVI reads as follows : — 

"The Contractor shall do any work not herein otherwise provided 
for when and as ordered in writing by the Engineer, such written 
order to contain particular reference to this article, and he shall, when 
requested by the Engineer so to do, furnish itemized statements of the 
cost of the work ordered and give the Engineer access to accounts, bills 
and vouchers relating thereto. If the Contractor claims compensation 
for extra work not ordered as aforesaid, or for any damage sustained, he 
shall, within one week after the beginning of any such work or of the sus- 
taining of any such damage, make a written statement to the Engineer, 
of the nature of the work performed or damage sustained, and shall on 
or before the fifteenth (15th) day of the month succeeding that in which 
any such extra work shall have been done or any such damage shall have 
been sustained, file with the Engineer an itemized statement of the de- 
tails and amount of such work or damage; and unless such statement 
shall be made as so required, his claim for compensation shall be for- 
feited and invalid, and he shall not be entitled to payment on account 
of any such work or damage. The determination of the Engineer shall 
be final upon all questions of the amount and value of extra work. Un- 
less the price to be paid for extra work ordered as aforesaid is set in the 
order therefor, the Contractor shall accept as full payment therefor the 
actual cost of all materials furnished by him as determined by the Engi- 
neer, plus ten (10) per cent, where such material is not covered by a 
unit price in the contract; and for such labor and teams as are neces- 
sary in the performance thereof he shall accept the prices which shall have 
been previously agreed to in writing by the Contractor and the Engineer, 
plus twenty (20) per cent of such cost of labor and teams with no addi- 
tional allowance for insurance of any kind or for bond premium; and for 
machinery, trucks and equipment, including their operators, a rental 
allowance which shall in the opinion of the Engineer be reasonable, with 
no percentage added." 



P.D. 12. 81 

This article of the contract is substantially the same as article XVI of 
the standard specifications for highways and bridges, edition of March, 
1936. 

The question, in substance, is whether the foregoing procedure is cor- 
rect; and if not, what, if anything, may be done to authorize the reim- 
bursement of the contractor. 

I have already given an opinion, under date of May 29, 1939 (not 
pubHshed), in response to a question from the Governor, to the effect 
that the suggested procedure was incorrect. 

The situation, in essence, is this. The Commonwealth, through the 
Department of Public Works, had a contract with a contractor for the 
reconstruction of a certain bridge. After certain delays it was eventually 
determined by the department that the circumstances were such as to 
render it inadvisable to proceed with the contract, whereupon the con- 
tractor was requested to discontinue work thereunder. It is my under- 
standing, from the facts as you state them, that the discontinuance is 
not merely a temporary postponement of the work but a final discontinu- 
ance by the Commonwealth of the contract. That being so, it is a breach 
of contract by the Commonwealth, for which the Commonwealth may be 
liable in damages. Under the recent decision of the Supreme Court in the 
case of George A. Fuller Co. v. Commonwealth, 303 Mass. 216, the Depart- 
ment of Public Works, even with the approval of the Governor and 
Council, has no power to enter into an agreement for the settlement of 
such a claim. 

You ask whether payment may be made under article XVI, relating to 
extra work. The facts do not show any "extra work," within the meaning 
of article XVI, and it is clear that the provisions of the article cannot be 
utilized in order to effect what is, in substance, a settlement for breach 
of contract. The contractor performed no "extra work," either with or 
without the written order of the engineer, but performed only the services 
which he was required to perform in the construction specifically desig- 
nated in the contract. 

I have considered the question whether your department has authority 
to make a modification of the contract so as to permit payment for the 
material delivered on the grounds although not yet put in place. This 
possible solution is suggested by the following language of the court in 
George A. Fuller Co. v. Commonicealth, supra: "But once work has been 
begun under a construction contract, except possibly for purposes of 
modifying the contract (see G. M. Bryne Co. v. Barnstable, 286 Mass. 
544, 555), the control of the department over the obligation of the Com- 
monwealth under the contract to pay would seem to be at an end apart 
from its supervisory control over the work." Reference to the Bryne 
case, cited by the court, shows that this language was used in connection 
with the performance rather than the nonperformance of the contract. 
The court in that case said: 

"As a broad proposition, the power of a municipality to modify a pub- 
lic improvement contract is lodged in the principal or officer authorized 
to make the contract . . . Such modifications, it is safe to assume, may 
be lawfully made when required by an exigency to meet a situation in 
the nature and progress of the work, that was neither understood nor 
contemplated when the contract was made. Atlantic City v. Warren 
Bros. Co., 226 Fed. Rep. 372, 382. It cannot be said as matter of law 
that a modification of the written contract so as to authorize the perform- 



82 P.D. 12. 

ance of extra work upon oral orders of the engineer — when written orders 
were not required by statute or by vote of the town — was not reasonably 
adapted to the exercise of the powers conferred on the bridge committee." 

Performance of the contract having been discontinued or abandoned 
by the department, I am of opinion that the contract may not be modi- 
fied so as to enable payment for partial performance which has not yet 
been brought to the point where payments are due for unit prices under 
the contract provisions. 

In my opinion, the contractor's only remedy is to file a petition against 
the Commonwealth, under G. L. (Ter. Ed.) c. 258, after which the Attor- 
ney General would have authority to settle the claim. In George A. 
Fuller Co. v. Commonwealth, supra, the court said: ". . . if there is any 
power on the part of a State agency to settle claims against the Com- 
monwealth by virtue of the statute permitting claims to be enforced by 
petition against the Commonwealth, under said c. 258, we think it is clear 
that that power can be exercised only after the petition is brought." 

G. L. (Ter. Ed.) c. 258, § 2, provides that where a petition has been 
brought against the Commonwealth "The laws relative to . . . offer of 
judgment ... shall apply to the said petition." 

G. L. (Ter. Ed.) c. 12, § 3, provides that the Attorney General shall 
appear for the Commonwealth in all suits and proceedings in which the 
Commonwealth is a party, and that "all such suits and proceedings shall 
be prosecuted or defended by him or under his direction." 

The legislative authorization to file an offer of judgment, combined 
with the provision which places the responsibility for the defense of the 
suit in the hands of the Attorney General, would necessarily seem to 
imply that the Attorney General may settle a claim in suit. He is, in 
my opinion, the "State agency to settle claims," to whom reference is 
made in the court's opinion in George A. Fuller Co. v. Commo7iicealth, 
swpra. 

In my opinion, therefore, the only way in which the contractor's claim 
against the Commonwealth may be settled is by action of the Legisla- 
ture, or by the Attorney General after suit has been brought. 

Your second question is as follows : — 

"Second: Certain other questions have arisen as to the performance 
of work done by contractors on -contracts with this department for which 
there was no specific item or price in the contract. 

In the progress of work under a contract it might be necessary, for 
instance, to require the contractor to furnish and lay a certain quantity 
of 15-inch pipe for which there was no item or price in the contract. This 
would be classed as 'extra work' under article XVI of the contract, and, 
acting under the provisions of St. 1937, c. 407, a 'notice of intention' 
to act upon such an extra work order would be filed with the Comptroller. 
If the cost of the work amounted to $1,000 or over, the Conmiissioners 
would wait seven days before approving the extra work order. In the 
case which I have cited, the extra work would have been found to be 
necessary and would have been ordered before the completion of the 
contract." 

In my opinion, the above-outlined procedure is correct. 
Article XVI of the standard specifications clearly provides that "The 
Engineer may give written orders to do work not otherwise provided for" 



P.D. 12. 83 

in the contract, and this "extra work" may include the furnishing of ma- 
terial, as article XVI expressly provides. 
Your third question is as follows : — 

" Third: A similar situation might arise in which the extra work order 
was not issued, the contractor had completed his contract, and the Commis- 
sioners had approved the work done thereunder. 

For instance, the fact that the 15-inch pipe had been put in might have 
been overlooked by the engineers of the department and not discovered 
until the contractor had received a copy of the proposed quantities to be 
paid for in the final estimate and had discovered that the 15-inch pipe which 
he had furnished in place was not included in the final. The department 
then would not issue an 'extra work order,' so called, but would consider 
it as an 'extra allowance' and would file with the Comptroller a 'notice of 
intention' to make such an 'extra allowance.'" 

The circumstances stated in this case in no way change the nature and 
character of the work done and material furnished. If it was "extra work" 
under the circumstances described in your second question, it is no less 
"extra work" under the circumstances described in your third question. 
The only difference in the latter case is that both the department and the 
engineer have overlooked the issuance of a written order, for which occasion 
article XVI makes express provision, to wit, that if the contractor claims 
compensation for it he shall make his claim within a week after the begin- 
ning of the work. 

In the circumstances which you suppose, however, both the department 
engineers and the contractor overlooked both the issuance of an "extra 
work" order and the making of claim of compensation for such "extra 
work" until the contract was completed. 

Upon the assumption that the work was in fact ordered, although not 
in writing, and was completed in good faith, the question is, how may the 
department make payment therefor. 

In my opinion, it is within the authority of the engineer to issue the work 
order even after the work has been done. Article XVI does not, in terms, 
require that the written order shall have been furnished prior to the per- 
formance of the work. You have directed my attention to no provisions 
of the contract or of the standard specifications under which this may be 
dealt with as an "extra allowance." In the absence of such provision, the 
subject matter is, in my opinion, governed by the express provisions for 
"extra work." 

Your letter further states that in all contracts made by your department 
where Federal funds are involved, the Federal authorities will not allow 
an "extra work" order, so called, to be issued after the completion of the 
contract but require that such payment be classed as an "extra allowance." 
This requirement by the Federal authorities does not alter my opinion 
upon the interpretation of the Commonwealth's contract. 

If, however, the "extra allowance" which the Federal authorities require 
is issued by the engineer and compfies with the provisions of article XVI 
for an "extra work order," it would be none the less valid because of its 
being called an "extra allowance." The substance rather than the name 
of the document would determine its true character and validity. I see no 
reason, therefore, why you maj^ not, in order to obtain the benefit of 
Federal funds, accept the terminology preferred by the Federal authorities. 



84 P.D. 12. 

Your fourth question is as follows : — 

^^ Fourth: The department sometimes finds after a contract has been 
accepted, and sometimes before acceptance, that the contractor had 
ordered for the work some special curved curbing or some heavy reinforced 
concrete pipe, which cannot be used, either because the traffic division 
makes a change in the proposed curbing or a property owner will not give 
an easement for laying the pipe. This means that the contractor has left 
on his hands a small amount of curved curbing or cement concrete pipe, and 
the department sometimes sees fit to pay the contractor for this at his 
out-of-pocket expense, which means that he will leave it on the ground 
and the State will take possession of it. An extra work order is usually put 
through to pay for this if it comes to the attention of the engineer before 
the work is accepted ; but if it comes to the attention of the engineer after 
the work is accepted, a request is made by the engineer that it be paid for 
as an extra allowance." 

If there is a mere change in the form or character of some of the work, 
it may be dealt with under article XV of the standard specifications, 
entitled "alteration of work" — that is, "the Engineer may order such 
alterations to be made, defining them in writing," etc. — and if they in- 
crease the cost of the work, the contractor shall be remunerated as provided 
by said article. If, however, the case involves the abandonment of a certain 
feature of the project rather than its alteration, but the project as a whole 
is nevertheless to be continued, we believe that this is a situation where the 
department is authorized to make a modification of the contract, under the 
doctrine of the Bryne case, in which modification a proper allowance may 
be made for the labor and material already furnished. It is my opinion 
that such material may not properly be paid for under an "extra work" 
order, for it was furnished in performance of the plans as originally desig- 
nated by the contract, and in no sense of the word may be treated as 
"extra work." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Municipal Offices — Incompatihility. 

June 27, 1939. 
His Excellency Leverett Saltonstall, Governor of the Commonwealth. 
Sir : — I am in receipt from Your Excellency of the following letter : — 

"G. L. (Ter. Ed.) c. 39, § 8, reads as follows: 'No member of the city 
council shall, during the term for which he was chosen, either by appoint- 
ment or by election of the city council or of either branch thereof, be 
eligible to any office the salary of which is payable by the city.' 

Will you kindly advise me whether, in your opinion, this would apply 
to an appointment made by the Governor or only to such appointments as 
are made by the city council or either branch thereof? " 

I answer the first part of your question in the affirmative. I am of the 
opinion that the intent of the Legislature in passing the foregoing statute, 
which as originally enacted in 1886 was in similar form, as indicated by its 
phraseology, was to make a city councilman, during his term of office, 
ineligible for any other office, whether he was to receive the same by 



P.D. 12. 85 

appointment from any authority or by election of the city council or one 
of its branches, if the salary thereof be payable by the city. 

The action of a city council in choosing an official is not of such a nature 
that the words "appointment" and "election" would both naturally be 
used as relating thereto, and the Legislature, in employing the word 
"by" before each of them, has indicated that the word "appointment" 
is not used as applying, like the word "election," to the action of the 
council or either of its branches. 

My opinion is confirmed by language used in an opinion by former 
Attorney General Malone, III Op. Atty. Gen. 593-594. In that opinion 
he speaks of the terms of said section 8 (then R. L., c. 26, § 36) in connection 
with an appointment by the mayor of a city of one alleged to be serving 
a term as city councillor to another office, whose salary was payable by 
the city, and says: — 

"The petition before me appears to be based upon the provisions of 
R. L., c. 26, § 36, which is as follows : — 

'No member of the city council shall, during the term for which he was 
chosen, either by appointment or by election of the city council or of 
either branch thereof, be eligible to anv office the salary of which is pay- 
able by the city.' (See St. 1886, c. 117.) 

If the provision above quoted were applicable to and governed the 
appointment of the respondent, there could be little doubt of the illegality 
of such appointment. ..." 

Moreover, the Supreme Judicial Court, in two opinions, has quoted the 
language of the statute in such a manner as to indicate that its intent was 
to prohibit the holding by one person of any two offices the salary of which 
is payable by the city. Barrett v. Medford, 254 Mass. 384, 386; Gaw v. 
Ashley, 195 Mass. 173, 176. 

As bearing further on the legislative intent in the use of the phraseology 
of the instant statute it is to be noted that the same in its original form, 
St. 1886, c. 117, was similar in its phrasing to an earlier act upon the same 
subject, applicable only to the city of Boston (St. 1884, c. 115), which 
earlier act was introduced into the Committee on Cities by an order of 
the House, which read : — 

"Commonwealth of Massachusetts. 
House of Representatives, January 14, 1884. 

Ordered, That the Committee on Cities consider the expediency of 
legislation providing that no member of the City Council of the City of 
Boston shall be eligible to any office the salary of which is payable out of 
the city treasury, during the term for which he is chosen." 

Very truly j^ours, 

Paul A. Dever, Attorney General. 

Local Board of Health — Unauthorized Regulation. 

June 27, 1939. 

Dr. Paul J. Jakmauh, Commissioner of Public Health. 

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

"This department would greatly appreciate learning whether or not, 
in your opinion, the following regulation passed by a local board of health 
is contrary to G. L. (Ter. Ed.) c. 140, § 51: — 



86 P.D. 12. 

'The granting of no license to practice hydro-therapy, electro-therapy, 
massage, or treating of any condition, or ailments of the human body, 
unless the appHcant is a regular practitioner of medicine.' 

Your opinion will be of value to the Board of Registration in Medicine 
and to the State Department of Public Health. This department is 
frequently called upon by local boards of health to give advice relative 
to such regulations, and I feel that, fortified by your opinion, we shall be 
able to perform our duties more effectively." 

I am of the opinion that a local board of health has no authority to make 
such a regulation as is set forth above. 

G. L. (Ter. Ed.) c. 140, § 51, as amended by St. 1936, c. 55, reads: — 

"No person shall practice massage, or conduct an establishment for the 
giving of vapor baths for hire or reward, or advertise or hold himself out 
as being engaged in the business of massage or the giving of said baths 
without receiving a license therefor from the board of health of the town 
where the said occupation is to be carried on; provided, that a person 
registered as a barber or apprentice under the provisions of section eighty- 
seven H or section eighty-seven I of chapter one hundred and twelve or as 
a hairdresser, operator, apprentice or a student under the provisions of 
sections eighty-seven T to eighty-seven JJ, inclusive, of said chapter one 
hundred and twelve may practice facial and scalp massaging without taking 
out a license as provided in this section. The board of health may grant 
the license upon such terms and conditions, and may make such rules and 
regulations in regard to the carrying on of the occupation so licensed, as 
it deems proper, and may revoke any license granted by it for such cause 
as it deems sufficient, and without a hearing; provided, that a person 
licensed to massage or to conduct an establishment for the giving of vapor 
baths in any town may, at the request of a physician, attend patients in 
any other town in the commonwealth without taking out an additional 
license." 

Under the terms of the above statute a local board of health is author- 
ized to estabhsh "terms and conditions" under which the licenses in ques- 
tion may be granted, and to make "rules and regulations in regard to the 
carrying on of the occupation." Such "terms and conditions" and such 
"rules and regulations" must not be arbitrary nor in contravention of the 
terms of the enabling statute. It is obvious from the context of the statute 
that it was not the intent of the Legislature to limit the granting of licenses 
to members of a single profession. The fact that the Legislature relieved 
persons registered under the laws relating to hairdressers from the necessity 
of procuring a license under said section 51 is of itself an indication of a 
legislative determination that the section itself was intended to be appli- 
cable to proper persons generally, and that limitation to special professions 
or callings, by way of local regulation, was not within the intent of the 
General Court. The phrase inserted in the section with relation to certain 
conduct of licensees, "at the request of a physician," likewise shows a 
legislative intent contrary to a limitation of its provisions to physicians. 
The limitation of licenses for the purposes set forth in said section 51 to 
members of the medical profession is arbitrary as applied to those purposes 
which do not come in the category of the practice of medicine. 

The regulation to which you refer applies, apparently, to other purposes 
as well as to those mentioned in section 51, for which licenses are to be 
granted, and treats all the purposes as if they constituted the practice of 



P.D. 12. 87 

medicine, whereas it was the plain intent of the Legislature to deal with 
"massage" and the "giving of vapor baths" as being businesses not 
necessarily constituting the practice of medicine. In so far as the various 
practices mentioned in section 51 might in fact constitute the practice of 
medicine, such practice is fully dealt with bj^ other statutes, and is not 
a subject upon which a local regulation like the above may be validly 
created. 

^'ery truly yours, 

Paul A. Dever, Attorney General. 

Registered A'urse — Revocation of Authority. 

June 27, 1939. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam: — You have requested my opinion upon a question of 
law propounded by the Board of Registration of Nurses. 

A registered nurse whose registration has been revoked is not liable to 
a penalty for a violation of G. L. (Ter. Ed.) c. 112, under section 61, 65 or 
80, if such person continues to practice nursing but does not do so as a 
registered nurse, either directly or indirectly. 

The prohibition and penalties of the statute imposed upon registered 
nurses whose authority to practice as such has been revoked plainly relate 
only to the deception involved in continuing to perform nursing under the 
guise of one who is duly registered, since such registration tends to lead 
the public to have special confidence in her ability and professional stand- 
ing. When such element of deception is lacking, and the nurse does not 
directly or indirectly lead members of the public to regard her as carrying 
on her practice under the authority or prestige of a registration with the 
Board, no offence is committed and no prohibited work done. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Contracts for State Printing. 

July 10, 1939. 

Hon. Patrick J. Moynihax, Chairman, Commission on Administration 

and Finance. 

Dear Sir: — I am in receipt from 3^011 of the following letter asking 
my opinion : — 

"I refer you to St. 1938, c. 419, being 'An Act relative to bids and con- 
tracts for State printing and binding and for furnishing certain office 
supplies.' 

Will you please advise me if, under this chapter, the Division of Per- 
sonnel and Standardization, operating under the Commission on Adminis- 
tration and Finance, is required to take over the advertising for bids and 
the placing of orders for printing, composition and press work in the 
Division of Accounts within the Department of Corporations and Taxa- 
tion." 

By the terms of G. L. (Ter. Ed.) c. 5, as amended by St. 1938, c. 419, 
the Division of Personnel and Standardization is required to supervise the 
state printing, with the exception of legislative printing. It is also pro- 



88 P.D. 12 

vided that the Commission on Administration and Finance, "or any other 
awarding official," shall take into consideration certain matters in the 
advertising for bids or the placing of orders, and that contracts or orders 
shall be given to such establishments only as pay the prevailing rate of 
wages, which is to be determined by the Commissioner of Labor and 
Industries. 

It is plain from this statute that the Legislature has made it mandatory 
on the said division to supervise the State printing. This requirement, 
however, does not compel it to execute the detailed work of advertising 
for bids, etc., in connection with necessary printing for particular depart- 
ments or divisions. The head of such a department or division might be 
"another awarding officer," as that phrase is used in section 1 of said 
chapter 5, as amended. It would be necessary, however, for it, in the 
exercise of the required supervision, to oversee such preliminary work and 
to give its approval to what was done in connection therewith. If there is 
a dispute in this connection between you and the Division of Accounts of 
the Department of Corporations and Taxation, it would seem to be a 
proper matter for reference to the Governor, under the provisions of G. L. 
(Ter. Ed.) c. 30, § 5. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Removal of Atlantic Avenue Elevated Structure. 

July 13, 1939. 

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

Means. 

Dear Sir: — In behalf of the House Committee on Ways and Means 
you have asked my opinion upon two questions of law, as follows : — 

."The House Committee on Ways and Means has pending before it 
legislation offered in substitution for House Bill No. 116, providing, in 
substance, for the acquisition by the city of Boston, and removal by its 
transit department, of the Atlantic Avenue elevated structure, so called. 
As compensation for the conveyance of the structure to the city, the act 
suggested provides for an extension of the Washington Street tunnel lease 
for twenty years from July 1, 1962, at a specific annual rental. 

The Committee is advised that the Finance Commission of the city of 
Boston questions the legality 'of any agreement made now by the city of 
Boston that will bind some future government in the matter of the rental 
to be paid by the Boston Elevated Railway Company for the Washington 
Street tunnel.' The Finance Commission further urges that, in the exercise 
of the police power, the Legislature 'has the right to order the Boston 
Elevated trustees to take down the structure, since its use has been dis- 
continued by the public trustees and it stands a menace to public conven- 
ience in a public way,' and asks the passage of legislation to provide for 
removal of the structure by public authorities without the payment of 
compensation to the company. 

Further essential facts are as follows : — 

On September 21, 1938, the public trustees of the Boston Elevated 
Railway Company passed the following vote, — 

' Voted: That the President and General Manager be authorized to 



P.D. 12. 89 

discontinue passenger service on the Atlantic Avenue elevated structure 
commencing October 1, 1938.' 

On October 3, 1938, the board of directors of the Boston Elevated Rail- 
way Company passed the following vote: — 

'That the Board of Directors do not concur in or consent to the discon- 
tinuance of service by the Board of Trustees on the so-called Atlantic 
Avenue Section of the Elevated Railway structure belonging to this 
Company, and that the Chairman be and hereby is authorized and directed 
to advise the Board of Trustees of the position of this Board.' 

Passenger service was discontinued on the Atlantic Avenue elevated 
structure on October 1, 1938, and has not since been resumed. 

Certain electric cables and air pipe lines connecting the Lincoln power 
station with other parts of the railway's system are still carried on said 
elevated structure and are in use. The part of said elevated structure east 
of Keany Square is still in use for the turning of trains. 

The elevated structure proposed to be removed is still physically con- 
nected with other parts of the elevated railway structure, and train service 
could be resumed at any time on short notice. Except for rights of the 
Boston Elevated Railway Company under its contract with the city of 
Boston for use of the Washington Street tunnel, that section of the elevated 
structure proposed to be removed constitutes the only connecting link 
between the part of the elevated railway structure situated north of the 
Washington Street tunnel and the part of the elevated structure situated 
south of the same. 

Taking into consideration the foregoing facts, the law pertaining to 
existing rights of the company to maintain an elevated structure in the 
location described in House Bill No. 116, and the law relating to the man- 
agement and operation of the Boston Elevated Railway Company by the 
public trustees, and also any other facts and provisions of law which you 
may deem pertinent, the House Committee on Ways and Means desires 
your opinion on the following questions of law: — 

1. May the Legislature, in the exercise of the police power, constitu- 
tionally require the removal of the elevated structure described in House 
Bill No. 116 without the payment of compensation to the company? 

2. May the Legislature constitutionally authorize the city of Boston 
to enter into an agreement with the Boston Elevated Railway Company 
for extension of the Washington Street tunnel lease for a period of twenty 
years beginning July 1, 1962, as compensation for the proposed conveyance 
to the city of the Atlantic Avenue structure, so called, all as proposed in the 
draft of act submitted; and would such agreement, if entered into, be 
legally binding on the city?" 

House Bill No. 116 provides, in substance, that the transit department 
of the city of Boston may, in the name of the city and with the approval 
of the mayor, enter into a contract with the Boston Elevated Railway 
Company for the purchase of the Atlantic Avenue structure, which is 
subsequently to be removed by the city at its own expense, the said 
department to have authority to determine the terms and provisions of 
the contract, subject to certain limitations contained in the bill. The 
proposed act is to take effect upon its acceptance by vote of the Boston 
city council, approved by the mayor, and acceptance by the Boston 
Elevated Railway Company by vote of its board of directors. 

The proposed substitute measure provides that the compensation to be 
paid by the city for the purchase shall consist of an agreement by the city 



90 P.D. 12. 

for the use of the Washington Street tunnel by the Boston Elevated Rail- 
way Company for a twenty-year period beginning July 1, 1962, at a rental 
of two and one-half per cent of the net cost of the tunnel. 

My opinion is rendered upon the facts thus submitted. 

Your first question reads : — 

"May the Legislature, in the exercise of the police power, constitu- 
tionally require the removal of the elevated structure described in said 
bills without the payment of compensation to the company?" 

St. 1894, c. 548, "An Act to incorporate the Boston Elevated Railway 
Company and to promote rapid transit in the city of Boston and vicinity," 
authorized the corporation to construct lines of elevated railway and to 
"equip, maintain and operate engines and cars thereon" (§ 6). 

With respect to locations the statute provides : — 

"The location, construction, maintenance or operation of said lines of 
railway in any public or private way shall be deemed an additional servi- 
tude and entitle lessees, mortgagees and other parties having an estate 
in such way or in premises which abut thereon, and who are damaged by 
reason of the location, construction, maintenance and operation of said 
lines of railway, to recover reasonable compensation in the manner herein 
provided" (§8). 

St. 1897, c. 500, "An Act to promote rapid transit in the city of Boston 
and vicinity," amendatory of the foregoing act of incorporation, provides : — 

"The locations of or right to maintain any elevated lines or structures 
of the Boston Elevated Railway Company shall not be subject to revocation 
except in the manner and on the terms prescribed in sections seven and 
eight of chapter one hundred and twelve of the Public Statutes: provided, 
however, that any location upon which said corporation has not constructed 
its railroad within ten years from the passage of this act shall be subject 
to revocation by the legislature; but no location upon which said corpo- 
ration has begun the construction of its railroad within said period shall 
be subject to revocation if the same be completed within three years there- 
after" (§19). 

Pub. Sts., c. 112, which is referred to in the foregoing section, dealt with 
railroad corporations and railroads. Section 7 provided that the Common- 
wealth might, during the continuance of the charter of a railroad corpora- 
tion, after the expiration of twenty years from the opening of its road for 
use, purchase the road and own its franchises by paying a sum equivalent 
to the capital paid in, with a net profit of ten per cent per year. Section 8 
provided that the Commonwealth might take the road, franchise, and 
other property of a railroad upon one year's notice in writing, and pay 
such compensation as should be awarded by commissioners, with a right 
to a jury trial reserved to the corporation. 

St. 1897, c. 500, further provides, in section 21 : — 

"Except as otherwise expressly provided in said chapter five hundred 
and forty-eight and by this act, said corporation shall have all the powers 
and privileges and be subject to all the duties, liabilities and restrictions 
set forth in general laws now or hereafter in force relating to street railway 
companies, so far as the same may be applicable, hut the ^provisions of chap- 
ter one hundred and thirteen of the Public Statutes or other general laws relating 
to the alteration or revocation of locations of street railway companies shall not 



P.D. 12. 91 

he deemed applicable to the locations or routes for elevated railroads granted to 
said corporation.^^ 

Pub. Sts., c. 113, which is referred to in the foregoing section, provides, 
in section 23, that alteration and revocation of locations of street railway 
companies may be authorized by the board of aldermen or selectmen of 
the municipality in which the tracks are located, after notice and oppor- 
tunity for hearing, and in case the location of any track is revoked "the 
company shall thereupon remove the same in conformity with such order, 
and shall put the street in as good condition as it was in immediately before 
being occupied by said track." 

Under this statute and its successor statutes (now G. L. [Ter. Ed.] c. 161, 
§§71 and 77), the courts have held that the locations of street railway 
companies in the public streets are mere licenses, subject to be revoked at 
any time by the cities or towns without liability for damages. Ameshury 
V. Citizens Electric St. Ry. Co., 199 Mass. 394, 397; Springfield v. Spring- 
field St. Ry. Co., 182 Mass. 41, 48; Medford & Charlestown R.R. v. Somer- 
ville, HI Mass. 232. Revocation of such locations may be made "without 
the payment of a single dollar." Boston, Woirester & New York St. Ry. Co. 
V. Commonwealth, 301 Mass. 283. 

The locations of the Boston Elevated Railway Company are by the ex- 
press terms of said St. 1897, c. 500, § 21, excepted from the operation of 
these provisions of the Public Statutes. 

Summarizing the foregoing analysis of the statutes, we find, (1) that the 
act of 1894, incorporating the Boston Elevated Railway Company, pro- 
vided that its locations should be in the nature of additional servitudes as 
distinguished from mere licenses; and (2) that the amendatory act of 1897 
provided that the locations were not subject to revocation save by pur- 
chase or taking by eminent domain, and expressly made inapplicable the 
general statutes relating to revocation of ordinary street railway locations. 
These statutory provisions, having been accepted and acted upon by the 
Boston Elevated Railway Company, constitute a contract with the com- 
pany which is within the protection of the constitutional guarantees. 

Therefore, so long as the Boston Elevated Railway Company continues 
to operate passenger service upon the Atlantic Avenue structure the 
Commonwealth may not, in the exercise of its police power, compel the 
demolition and removal of the structure. The most which the Common- 
wealth may do is to exercise its right of eminent domain to condemn the 
property upon the payment of compensation. The law is fully stated by 
the United States Supreme Court (Lamar, J.) in Grand Tfunk Western Ry. 
Co. V. South Bend, 227 U. S. 544, 554-555, as follows: — 

"The State, with its plenary control over the streets, had this govern- 
mental power to make the grant. There was nothing contrary to public 
policy in any of its terms, and being valid and innocuous, the police power 
could not be invoked to abrogate it as a whole or to impair it in part. 
Walla Walla v. Walla Walla Water Co., 172 U. S. 1, 17. Tracks laid in a 
street, under legislative authority, become legalized, and, when used in the 
customary manner, cannot be treated as unlawful either in maintenance or 
operation. As said by this court, 'a railway over the . . . streets of the 
city of Washington, may be authorized by Congress, and if, when used 
with reasonable care, it produces only that incidental inconvenience which 
unavoidably follows the additional occupation of the streets by its cars 
with the noises and disturbances necessarily attending their use, no one 



92 P.D. 12. 

can complain that he is incommoded.' Baltimore & Potomac R.R. Co. 
V. Fifth Baptist Church, 108 U. S. 317, 331. The inconvenience consequent 
upon the running of a railroad through a city, under state authority, is not 
a nuisance in law, but is insuperably connected with the exercise of the 
franchise granted by the State. If the police power could lay hold of such 
inconveniences, and make them the basis of the right to repeal such an 
ordinance, the contract could be abrogated because of the very growth in 
population and business the railroad was intended to secure. 

The power to regulate implies the existence and not the destruction of 
the thing to be controlled. And while the city retained the power to 
regulate the streets and the use of the franchise, it could neither destroy 
the public use nor impair the private contract, which, as it contemplated 
permanent and not temporary structures, granted a permanent and not 
a revocable franchise." 

But every public utility franchise contains a condition, which is implied 
if not expressly stated, that the utility will furnish the public service which 
was the object of the grant of the franchise, and that the franchise may be 
revoked or withdrawn in case of nonuser thereof. 

In Neiv York Electric Lines Co. v. Empire City Subway Co., 235 U. S. 179, 
194, Mr. Justice Hughes laid down the rule, as follows: — 

"It is a tacit condition annexed to grants of franchises that they may be 
lost by mis-user or non-user. . . . The conception of the permission as 
giving rise to a right of property in no way involves the notion that the 
exercise of the franchise may be held in abeyance for an indefinite time, 
and that the right may thus be treated as a permanent lien upon the public 
streets, to be enforced for the advantage of the owner at any time, however 
distant. Although the franchise is property, 'it is subject to defeasance 
or forfeiture by failure to exercise it (People v. Broadway R.R. Co. of 
Brooklyn, 126 N. Y. 29), or by subsequent abandonment after it has been 
exercised {People v. Albany & Vermont R.R. Co., 24 N. Y. 261).' " 

If, therefore, the Boston Elevated Railway Company has abandoned 
operation of passenger service upon the Atlantic Avenue structure, I am of 
opinion that the Legislature may, by reason of such abandonment of 
service, revoke the company's franchise. In such case, inasmuch as the 
structure remains the property of the company {Cleveland Electric Ry. Co. 
V. Cleveland, 204 U. S. 116, 142) the Legislature may, in the exercise of its 
police power, require the company, at its own expense and without com- 
pensation, to remove the structures from the public highways. 

The United States Supreme Court held in the case of New York Electric 
Lines Co. v. Empire City Subway Co., supra, and in the more recent case of 
Public Service Comviission of Puerto Rico v. Havemeyer, 296 U. S. 506, 515, 
that "Whether there has been such a mis-use or non-exercise of the franchise 
as to warrant its withdrawal is a matter for judicial consideration." 
(Hughes, J., in New York Electric Lines Co. v. Empire City Subway Co., 
supra, 195.) 

This constitutional requirement of an opportunity for judicial con- 
sideration is, however, "satisfied if the withdrawal of the privilege, de- 
clared by legislative . . . authority, may be followed by appeal to a court 
of competent jurisdiction in which the rights of the holders [of the franchise] 
may be determined." (Butler, J., in Public Service Commission of Puerto 
Rico v. Havemeyer, supra, 515.) 

It is therefore open to the Legislature to adopt either one of two courses: 



P.D. 12. 93 

(1) to provide for a judicial determination of abandonment prior to for- 
feiture of the franchise, which may be done by authorizinp; proceedings be- 
fore an administrative tribunal, such as the Department of Public Utilities 
or the Boston Transit Department, with a right of appeal to the courts 
from its decision, to be followed by forfeiture of the franchise and removal 
of the structures by the company in the event of a decision favorable to 
the State (cf. Commonwealth v. The Tenth Massachusetts Turnpike Corpn., 
11 Cush. 171); or (2) to make a legislative determination of the facts con- 
stituting abandonment, declaring the franchise forfeit therefor and direct- 
ing the removal of the structure by the company, with a right of appeal to 
the courts from the Legislature's determination prior to the operation of 
the forfeiture (cf. Columbia Valley R. Co. v. Portland & S. Ry. Co., 162 Fed. 
Rep. 603). 

It is important, therefore, to consider whether the existing facts present 
such an abandonment of service as would be held by the courts to be suffi- 
cient ground for declaring a forfeiture of the franchise. 

It is well settled that a railroad company, in the absence of a mandatory 
provision in its charter, is not required to operate a branch system if public 
convenience and necessity do not require it. Commonwealth v. Fitchburg 
R.R. Co., 12 Gray, 180; Brownell v. Old Colony R.R. Co., 164 Mass. 29; 
Weld V. Gas & Electric Light Commissioners, 197 Mass. 556, 560; Brooks- 
Scanlon Co. v. Railroad Commission of Louisiana, 251 U. S. 396, 399. 
If, however, the company discontinues operation under a franchise, it may 
not insist upon retention of the franchise. It was said by Chief Justice 
Taft in Chas. Wolff Packing Co. v. Court of Industrial Relations, 262 U. S. 
522, 543: "It is true that if operation is impossible without continuous 
loss ... it may give up its franchise and enterprise, but short of this, 
it must continue. ^^ 

The Boston Elevated Railway Company is a public utility subject to 
these principles. Opinion of the Justices, 261 Mass. 523, 533. If the opera- 
tion of the Atlantic Avenue branch is "impossible without continuous 
loss," the company may discontinue service upon it, but if it chooses to do 
so it must be at the risk of losing its franchise. It cannot fail to furnish 
service for an indeterminate period and retain its privileges in the public 
streets. And, as I have said above, if its franchise is forfeited, the Legisla- 
ture may compel the company to remove its structures from the streets. 

The question is raised whether the public trustees have a right to author- 
ize the discontinuance of service so as to submit the company to the risk of 
loss of its franchise. 

The public trustees, under the Public Control Act (Spec. St. 1918, c. 159, 
subsequently extended), are vested with the "management and opera- 
tion'" of the railway, with power to "exercise all the rights and powers of 
said company and its directors" and to "determine the character and 
extent of the services and facilities to be furnished, and in these respects 
their authority shall be exclusive" (§2). The trustees shall fix rates to 
meet the cost of service, "including . . . such allowance as they may 
deem necessary or advisable . . . for . . . losses in respect to property 
. . . destroyed or abandoned" (§ 6). It shall be the trustees' duty "to 
maintain the property of the company in good operating condition and to 
make such provision . . . that, upon the expiration of the period of public 
management and operation, the property shall be in good operating 
condition" (§ 13). 

The stockholders, under the act, may still elect a board of directors, 



94 P.D. 12. 

but such board is to "have no control over the management and operation 
of the street railway system, but its duties shall be confined to maintaining 
the corporate organization, protecting the interests of the corporation 
so far as necessary, and taking such action from time to time as may be 
deemed expedient in cases, if any, where the trustees cannot act in its 
place" (§ 14). 

As the authority to discontinue service and to abandon property must 
exist somewhere in the company, I am of the view that, under the fore- 
going provisions, the authority is vested in the public trustees rather than 
the directors or stockholders. As the Public Control Act guarantees the 
payment of dividends to the stockholders, which in case of a deficit must 
be met by taxation (Spec. St. 1918, c. 159, § 11), it is not reasonable to 
suppose that the Legislature intended that the stockholders could insist 
on running a branch line which public necessity and convenience did not 
require, at a continuous loss to be met by the taxpayers. 

But whether the authority lies with the trustees, the directors or the 
stockholders, it is undisputed that there actually exists a discontinuance of 
service, which resulted from a vote of the public trustees, as against which 
the directors merely passed a vote of protest without taking any action to 
make this protest effective, and the stockholders have done nothing. 
Whether from the action of the trustees or the nonaction of the directors 
and the stockholders, the company is failing to furnish the service for which 
the franchise was granted. The legal consequences follow from this result 
rather than its causes. In my opinion, the company cannot defend against 
the results that flow from its failure to serve the public by having recourse 
to a mere vote of protest. 

It is true that mere temporary cessation of service, due to transient 
conditions which furnish a justification therefor, is not a breach of the 
condition of the franchise so as to warrant its revocation. But if the 
surrounding circumstances indicate that the cessation of service is perma- 
nent or that there is no reasonable likelihood of its renewal, the Legislature 
may, upon the basis of such findings, revoke or declare forfeit the franchise. 
State ex rel. Kansas City v. East Fifth St. Ry. Co., 140 Mo. 539; Columbia 
Valley R. Co. v. Portland & S. Ry. Co., 162 Fed. 603; People v. Bleecker 
St. & F. F. R. Co., 124 N. Y. S. 782; Townsend v. Blewett, 5 How. (Miss.) 
503; Palestine Water, etc., Co. v. Palestine, 91 Tex. 540, 40 L. R. A. 203; 
12 R. C. L. Tit. Franchises, §§ 26-29; cf. Commo?iwealth v. The Tenth 
Massachusetts Turnpike Corpn., 11 Cush. 171. The Legislature would 
have the right to consider whether the operation of the branch has resulted 
in heavy operating losses over a long period, whether the public has in- 
creasingly failed to make use of the service, whether changes in economic 
or social conditions and modes of travel have rendered it obsolete, and 
whether the duration of the period of nonuser creates a presumption of 
permanent nonuser. In this connection it may be noted that in the case 
of ordinary street railways a voluntary discontinuance of the use of any 
part of the tracks for six months entitles the municipaUty to clear the 
streets of the tracks at the company's expense (G. L. [Ter. Ed.] c. 161, § 86). 

It is to be borne in mind that we are dealing here with a so-called sec- 
ondary franchise as distinguished from the corporate franchise itself, 
such as was involved in Commonwealth v. Fitchhurg R.R. Co., 12 Gray, 180. 
It is also to be borne in mind that we are dealing with forfeiture of a fran- 
chise for failure to comply with its conditions as distinguished from inten- 
tional abandonment of the franchise itself, such as was considered in the 



P.D. 12. 95 

cases of Boston & Albany R.R. Co. v. Reardon, 226 Mass. 282, 292; and 
New York Central ct- Hudson River R.R. Co. v. Chelsea, 213 Mass. 40, 45. 
The question here is not whether the corporation intended to abandon its 
franchise as such, but whether it abandoned operations thereunder. While 
mere nonuse does not in itself constitute abandonment of a franchise, 
it may furnish a ground for its revocation. (See cases cited above.) 

Summarizing my answer to your first question, I am of opinion that the 
Legislature may, in the exercise of the police power, constitutionally re- 
quire the removal of the elevated structure described in said bill without 
the payment of compensation to the company, (1) if the Legislature pro- 
vides for a judicial determination of the issue of abandonment prior to such 
removal and that issue is determined favorably to the State; or (2) if the 
Legislature provides for a judicial review of its own determination of 
abandonment and the courts, upon such review, uphold that determination. 

I am of opinion that there are no facts stated in your letter which would 
preclude the Legislature from making such finding. Whether, however, 
upon all the facts such finding would be justified, I am unable to state in 
the absence of complete knowledge of all the facts, which is not afforded 
by your letter. 

Your second question reads : — 

"May the Legislature constitutionally authorize the city to enter into 
an agreement with the Boston Elevated Railway Company for extension 
of the Washington Street tunnel lease for a period of twenty years beginning 
July 1, 1962, as compensation for the proposed conveyance to the city of 
the Atlantic Avenue structure, so called, all as proposed in the draft of act 
submitted, and would such agreement, if entered into, be legally binding 
on the city?" 

I am of opinion that the Legislature may authorize the city to enter 
into an agreement upon the terms stated in the foregoing question. 

While a public official for a limited term is not authorized to enter into 
long-term contracts which will embarrass his successors in office (see 46 
Corpus Juris, Tit. Officers, § 289), there can be no legal objection to his 
doing so upon explicit authorization by the Legislature. 

In my opinion, the facts are not such as to render such contract a mere 
gratuity on the part of the city. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Labor Law — Acceptance by a Municipality. 

July 24, 1939. 
Hon. James T. Moriarty, Commissioner of Labor and Industries. 

Dear Sir : — I have your communication asking my advice in the fol- 
lowing matters : — 

"The city of Maiden never accepted G. L. (Ter. Ed.) c. 149, §§ 30 and 
31, neither has that city accepted Gen. St. 1916, c. 240, § 1. The only labor 
legislation which the city of Maiden has accepted is St. 1899, c. 344, which 
provides, in section 1, as follows: — 

' Eight hours shall constitute a day's work for all laborers, workmen and 
mechanics now employed, or who may hereafter be employed, by or on 
behalf of any city or town in this Commonwealth.' 



96 P.D. 12. 

Section 37 of said chapter 149, which is a re-enactment of section 43 of 
St. 1900, c. 514, provides: — 

'In any town not subject to section thirty or thirty-one nine hours shall 
constitute a day's work for all laborers, workmen and mechanics employed 
by or on behalf of such town.' 

In the interpretation of those various provisions of law two questions 
arose, namely: — 

First: Is the service of laborers, workmen and mechanics employed by 
or on behalf of the city of Maiden restricted to eight hours in any one day, 
or is the city of Maiden subject to G. L. (Ter. Ed.J c. 149, § 37? 

Second: Are the exceptions enumerated in section 36 of said chapter 149 
applicable to employees in the municipal institutions of the city of 
Maiden?" 

Your first question received the consideration of one of my predecessors, 
with respect to St. 1911, c. 494, the provisions of which have since been 
incorporated, with some modifications, in G. L. (Ter. Ed.) c. 149, § 31. 
Ill Op. Atty. Gen. 567. In substance that ruling was that the acceptance 
by a city or town of St. 1899, c. 344, did not constitute an acceptance of 
subsequent amendments of that statute, which were more stringent and 
contained penal provisions. 

The ruling thus made with reference to St. 1911, c. 494, if sound, is 
equally apphcable to G. L. (Ter. Ed.) c. 149, § 31. I am of the opinion 
that my predecessor's ruling was sound, and I am therefore constrained 
to rule that G. L. (Ter. Ed.) c. 149, § 31, is not apphcable to the city of 
Maiden unless and until it accepts the terms of the statute. 

In that situation the provision of law which is applicable to the city of 
Maiden is G. L. (Ter. Ed.) c. 149, § 37, which provides: "In any town not 
subject to section thirty or thirty-one nine hours shall constitute a day's 
work for all laborers, workmen and mechanics employed by or on behalf of 
such town." 

Inasmuch as the city of Maiden is not subject to said section 31, it 
follows that section 36, which contains certain qualifications upon the 
application of section 31, is also not applicable. 

If the Legislature had intended that section 37 should not apply to the 
various occupations enumerated in section 36, it doubtless would have 
so declared. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Works — Sea Wall — Maintenance — 
Liability for Injuries. 

Aug. 3, 1939. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sir: — A request for an opinion relative to a sea wall at Marsh- 
field was made upon me by your predecessor, in which, with respect to 
such wall, the following questions were asked : — 

"1. Is the wall the property of the Commonwealth or does it attach 
to the land and become the property of the owners? 

2. In view of the lack of any provision in the statute or in the releases 
for the maintenance of the wall, has the department any obligation to 
maintain it, or any authority to do so except that granted by G. L. (Ter. 
Ed.) c. 91, § 31? 



P.D. 12. 97 

3. Has the department any responsibility for accidents that may result 
from the use of the top of this wall as a walk by the general public, and is 
this affected by the fact that the department has expended funds for the 
maintenance of the wall? 

4. Has the department authority to post the wall by a notice against 
trespass?" 

It is stated in the letter that no taking was made by the State of the land 
of the adjoining owners upon which the wall was erected, but that releases 
were secured from such owners. The giving of such releases would seem 
to grant to the Commonwealth an easement for the erection and mainte- 
nance of said wall upon land of the owners, so that the wall as such is to be 
treated as property of the Commonwealth. I accordingly answer your first 
question in the affirmative. 

The provisions of section 31 of G. L. (Ter. Ed.) c. 91, appear to be 
sufficient to authorize the department to maintain the wall. There does 
not appear to be any other specific requirement placing upon the depart- 
ment the burden of such maintenance, but having erected it, there would 
appear to be an obligation on the department to use its authority under 
section 31 to keep the wall in proper shape, and I answer your second 
question to this effect. 

Neither the Commonwealth nor the department as such can be liable 
for injuries resulting from the use of the top of the wall as a walk by the 
general public, and I answer your third question to this effect. 

I answer your fourth question in the affirmative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Conviction of Offence involving Moral Turpitude. 

Aug. 3, 1939. 

Mrs. Margaret jVI. O'Riordan, Director of Registration. 

Dear Madam : — You have forwarded to me a communication request- 
ing my opinion, which reads as follows and emanates from the Board of 
Registration in Chiropody : — 

"At the recent examination given by the Board of Registration in 
Chiropody-Podiatry for the purpose of examining candidates for registra- 
tion, a question arose on which this Board desires a ruling. 

The candidate in question, at the age of fourteen, was arrested and placed 
on probation for breaking and entering in the daytime. At seventeen years 
of age he was arrested, adjudged delinquent and placed on probation. 
From seventeen years of age to twenty-nine years of age (his present age) 
no further record has been placed against him. 

The question arose whether this candidate is guilty of having been con- 
victed of an offence involving moral turpitude, as outlined in G. L. (Ter. 
Ed.) c. 112, § 18, as amended by St. 1937, c. 425. 

The Board desires an official opinion on this point." 

If the candidate above mentioned was formally tried upon a charge of 
breaking and entering and was found guilty of the offence, this would con- 
stitute conviction of an offence involving moral turpitude, within the 
meaning of G. L. (Ter. Ed.) c. 112, § 18, as amended, irrespective of the 
fact that the candidate was placed on probation after having been found 
guilty. 



98 P.D. 12. 

If, however, the candidate was tried not for the specific crime of breaking 
and entering but as a delinquent child, under the provisions of G. L. (Ter. 
Ed.) c. 119, §§ 52-83, the disposition of his case would not constitute 
a conviction of an offence involving moral turpitude, as those words are 
used in said section 18. If the offence in question was committed subse- 
quent to 1933, proceedings would have been instituted against him as a 
deUnquent rather than upon the breaking and entering charge. G. L. 
(Ter. Ed.) c. 119, § 74, as amended by St. 1933, c. 196, § 1. 

A careful examination of the court record relative to the matter in ques- 
tion should be made by the Board, in order to determine whether there was 
an actual trial on the charge of breaking and entering and an actual finding 
by the court of guilty, before treating the matter as one barring the candi- 
date from having a license. 

The occurrence which was referred to when the candidate was seventeen 
years of age is obviously a process for delinquency, and the proceedings 
in that matter, so carried on, as I have indicated, would not result in the 
conviction of an offence involving moral turpitude, as those words are used 
in said section 18. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Supervisor of Marine Fisheries — State Inspector of Fish — 
Abolishment of Offices by St. 1939, c. 491. 

Aug. 14, 1939. 
Hon. Ernest J. Dean, Commissioner of Conservation. 

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

"Your opinion is respectfully requested as to the status of Supervisor 
Bernard J. Sheridan as a result of the passage of St. 1939, c. 491. 

It is my contention that by the passage of said chapter 491 the positions 
of State inspector of fish and State supervisor of marine fisheries are 
abolished. 

Chapter 491 combines the functions of the two officials above mentioned 
under a new Division of Marine Fisheries, a director of which has not yet 
been appointed." 

In my opinion, the recent enactment of St. 1939, c. 491, amending 
G. L. (Ter. Ed.) c. 21, as previously amended, abohshes the positions of 
State inspector of fish and State supervisor of marine fisheries, which 
had formerly been established by sections 8 and 8A, respectively, of said 
chapter 21. 

Said section 8 of said chapter 21 provided: "There shall be a state 
inspector of fish serving in the division," i.e., the Division of Fisheries 
and Game, set up by section 6 of said chapter 21. St. 1939, c. 491, b}^ its 
section 7, repeals said section 8 as it formerly appeared. 

Said section 8A of said chapter 21 provided: "There shall be a state 
supervisor of marine fisheries serving in the division," i.e., the Division of 
Fisheries and Game. Said chapter 491, by its section 8, strikes out said 
section 8 A and inserts in place thereof, under the heading "Division of 
Marine Fisheries," new sections 8A, 8B and 8C, which provide for the 
appointment of a director in the said Division of Marine Fisheries and 
outhne his powers and duties. The powers formerly vested in the said 
State inspector of fish, by sections 74 to 88B of G. L. (Ter. Ed.) c. 94, are 



P.D. 12. 99 

specifically vested in the director by section 8C of chapter 491. By amend- 
ment of G. L. (Ter. Ed.) c. 129A, by section 11 of said chapter 491, and 
by the force of sections 8A, 8B and 8C of said chapter 491, the powers and 
duties of the supervisor of marine fisheries are completely vested in the 
new director of the Division of Marine Fisheries, created by said chap- 
ter 491. Provisions for the appointment by the Governor of said new 
director at any time after the enactment into law of chapter 491, which has 
already occurred, are set forth in section 12 of said chapter 491. 

While chapter 491, in section 12, has provisions for the protection of 
"employees" in their tenure of service and of "the state ornithologist," 
it contains none with reference to the State inspector of fish or the State 
supervisor of marine fisheries. 

It follows that chapter 491, as passed by the Legislature and approved 
by the Governor, has abolished the offices of State inspector of fish and 
State supervisor of marine fisheries, and the former holders of such offices 
are now without office or authority under any applicable provisions of law ; 
and that the former incumbent of the office of supervisor, who was an 
officer and not an employee of the Department of Conservation, about 
whom you particularly inquire, should not now attempt to exercise any 
authority as such supervisor or to exercise any control over the premises 
formerly used by him, or interfere with the department or its officers or 
employees in any manner whatsoever. 

The General Court has the power, in the exercise of its judgment, to 
abolish an appointive office of the character of those herein referred to. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Ballot — Questions of Public Policy — Number. 

Aug. 16, 1939. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir : — You have, in effect, asked my opinion as to what con- 
stitutes "two questions" of public poHcy, as the quoted words are em- 
ployed bv the Legislature in G. L. (Ter. Ed.) c. 53, § 21. 

G. L. (Ter. Ed.) c. 53, §§ 19 and 21, read: — 

"Section 19. On an application signed by twelve hundred voters in 
any senatorial district, or by two hundred voters in any representative 
district, asking for the submission to the voters of that senatorial or rep- 
resentative district of any question of instructions to the senator or rep- 
resentatives from that district, and stating the substance thereof, the 
attornej" general shall upon request of the state secretary determine 
whether or not such question is one of public policy, and if such question 
is determined to be one of public policy, the state secretary and the attor- 
ney general shall draft it in such simple, unequivocal and adequate form 
as shall be deemed best suited for presentation upon the ballot. Upon 
the fulfilment of the requirements of this and the two following sections 
the state secretary shall place such question on the official ballot to be 
used in that senatorial or representative district at the next state election. 

Section 21. Applications shall be filed with the state secretary not 
less than sixty days before the election at which the questions are to be 
submitted. Not more than two questions under section nineteen shall 



100 P.D. 12. 

be placed upon the ballot at one election, and they shall be submitted 
in the order in which the applications are filed. No question negatived 
and no question substantially the same shall be submitted again in less 
than three years." 

I am of the opinion that if a question of instructions to a senator upon 
a matter of public policy and an identical question of instructions to rep- 
resentatives upon the same matter of public policy are placed upon the 
ballot they constitute but a single question and not "two questions," as 
the quoted words are used in said section 19, and that, accordingly, one 
more question of instructions, addressed either to a senator and to rep- 
resentatives if identical or to a senator or to representatives if not iden- 
tical, may be placed upon the same ballot. 

The provisions of said sections 19 and 21 deaUng with instructions on 
public policy questions should be broadly construed, so that the repre- 
sentatives of the people in the Senate and in the House of Representatives 
may be informed, so far as a vote can show it, of the sentiment of voters 
in their respective districts. 

The general intent of the Legislature in enacting said sections 19 and 
21 was to afford an opportunity to the voters to apprise their senators 
and representatives of their sentiments upon important public questions. 
The provisions of section 21, aimed to prevent the creation of too lengthy 
ballots, should be construed in the Hght of such general intent. To inter- 
pret the prohibition, in section 19, of more than two questions so that it 
would be impossible for voters using the same ballot to express their sen- 
timents on more than one matter of pubhc policy, as would be the case 
if the words "two questions" were to be construed so as to embrace 
only a single matter of public pohcy, shaped in the form of identical ques- 
tions of instructions to a senator and to representatives, would be con- 
trary to the general intent of the Legislature. Such prohibition should 
be construed as broadly as the language of the statute will permit, in 
order that the general intent of the Legislature may be given its full effect, 
while still guarding the ballot from becoming unduly lengthy. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Prisoner — Removal from State Prison — Mode of Return Thereto. 

Aug. 16, 1939. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You have asked my opinion, in effect, as to whether a 
prisoner, properly removed from the State Prison to the Massachusetts 
Reformatory and then to the State Prison Colony, may be returned directly 
to the State Prison without first returning him to the Massachusetts Re- 
formatory and afterwards transferring him thence to the State Prison, 
under the provisions of G. L. (Ter. Ed.) c. 127, § 97. 

I answer your inquiry to the effect that the prisoner may be so trans- 
ferred to his original place of confinement. 

In an opinion given by me on July 31, 1935, to the then Acting Com- 
missioner of Correction (not published), it was stated that a similar mode 
of transfer to the original place of confinement might be made directly 
of a prisoner originally committed to the Massachusetts Reformatory, 
later transferred to the Cambridge house of correction, and then to the 
State Prison Colony, under the terms of said chapter 127, sections 99-107 



P.D. 12. 101 

and spction 109A, respectively, altliough the words which appear in said 
section 97, "and may at any time return him to the place from which he 
was removed," do not appear in section 99. It was stated in said opinion : — 

"It seems clear upon comparison of all sections of this nature that the 
intention of the Legislature is to give the Commissioner of Correction 
authority to remove prisoners from the institution to which they were 
originally committed, and at any time to return them. 

. . . the omission to return him (the prisoner) by way of the same in- 
stitutions through which he reached the Prison Colony would not in any 
way infringe upon his substantial rights." 

The phrase occurring in section 109 of said chapter 127, "and may at 
any time return them to the place of imprisonment from which they were 
removed," likewise imports, by the use of the word "place," the place of 
original confinement. Section 4 IB of chapter 125 is likewise to be read 
in a similar sense. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Employment of Persons on a Federal Relief Project. 

Aug. 16, 1939. 
Hon. William H. Bixby, Acting Director of Civil Service. 

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

"On July 31, 1939, I received an opinion from you regarding the exemp- 
tion of employees from civil service classification under the provisions of 
St. 1939, c. 46. 

Will you please advise me whether or not St. 1939, c. 72, is equally 
applicable, and exempts employees under the provisions of this act from 
civil service classification." 

St. 1939, c. 72, is merely a statute authorizing another mode of raising 
money, by cities, towns and districts, for providing co-operation with the 
Federal government in unemployment relief and other projects, in addition 
to the ordinary mode of taxation. It does not by its own terms regulate 
or require the hiring of employees. 

If money raised by loan, under the method described in chapter 72, is 
thereafter appropriated by a political subdivision for the employment of 
persons to work on "any federal emergency unemployment relief" project 
mentioned in section 1 of said chapter 72, the same principle of law enunci- 
ated in my opinion to you of July 31, 1939 (not published), applies to the 
persons so hired for such work, whether the money to pa}^ them be taken 
from a reserve fund described in St. 1935, c. 90, or from an appropriation 
directly, under G. L. (Ter. Ed.) c. 40, § 5 (39), or other similar statutory 
provisions. Since the work upon a "federal emergency unemployment 
relief" project, mentioned in said chapter 72, is necessarily of a temporary 
character, like the work referred to in said St. 1935, c. 90, as amended, the 
beneficiaries of both chapters being those out of employment, it would 
defeat the purpose of chapter 72 to place employees, paid out of the 
appropriations derived from the loans authorized by chapter 72, upon 
such "federal emergency unemployment relief" projects under civil service, 
which service, as I stated in my previous opinion, is "designed to assure 
a permanency of tenure secure and free from the threat of change." Emer- 



102 P.D. 12. 

gency unemployment projects are, as their name implies, temporary in 
character and of limited duration, and an intent upon the part of the 
Legislature, in the absence of any controlling language, to make those 
employed thereon subject to the Civil Service Law and Rules cannot be 
found by mere inference. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Insurance — Industrial Policy — Exchange — Date of New Policy. 

Aug. 31, 1939. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — Replying to your recent letter, in my opinion G. L. 
(Ter. Ed.) c. 175, § 139, comprehends the exchange of an industrial pohcy 
of life insurance for another form of policy under the restrictive provisions 
of the applicable law. 

Section 139, however, requires that the date of the new policy shall be 
either that of the original policy or the date of the conversion. It does not 
permit that the new policy shall bear a date between those two. This 
requirement may not be avoided by applying for the exchange of a num- 
ber of industrial policies as a group at a date which is not the date of ex- 
change of all of them nor the date of all the original policies, though such 
date be the date of some of the originals in the group. The form of applica- 
tion which you laid before me appears, by its terms, to violate the require- 
ment of this statutory rule. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Insurance — Broker^ s License — Yeoman (F). 

Aug. 31, 1939. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — You have asked my opinion, in effect, as to whether 
a woman who served in the United States Navy during the World War 
as a yeoman (F) and received an honorable discharge or release from 
active duty therein is entitled to receive an insurance broker's license, 
under G. L. (Ter. Ed.) c. 175, §§ 166, 167 and 173, without the payment 
of the fee prescribed by G. L. (Ter. Ed.) c. 175, § 14. 

G. L. (Ter. Ed.) c. 175, § 167A, as most recently amended, provides: — 

"No fee for an insurance broker's license issued under section one hun- 
dred and sixty-six, one hundred and sixty-seven or one hundred and 
seventy-three shall be required of or on account of any soldier, sailor or 
marine resident in this commonwealth who has served in the army or navy 
of the United States in time of war or insurrection and received an honor- 
able discharge therefrom or release from active duty therein, if he presents 
to the commissioner satisfactory evidence of his identity, or of or on account 
of his widow if he held such a Hcense immediately prior to his death." 

The words with relation to "widow," in the last two Hnes of section 167A, 
were added to the rest of the statute by St. 1937, c. 260. Chapter 260 does 
not show an intent to alter the meaning of words used in the amended 
statute or its predecessor, nor does it alter the context of the earUer and 



P.D. 12. 103 

unamended portion of the section. As to the use in such earlier portion 
of the pronoun "he," the mode of interpretation outHned in G. L. (Ter. Ed.) 
c. 4, § 6, cl. Fourth, whereby it is provided that "words importing the 
mascuhne gender may include the feminine and neuter," does not involve 
a construction inconsistent with the manifest intent of the lawmaking 
body or repugnant to the context of the same statute, and is to be adopted. 
It follows that the principal provisions of the section are applicable to 
women as well as to men, and that the pronouns "he" and "his," as em- 
ployed in the last clause of the section (added by St. 1937, c. 260), are 
limited, by the context and the manifest intent of the Legislature in using 
them with relation to the subject matter of the last clause, to men. 

I disagree with an opinion of a former Attorney General, V Op. Atty. 
Gen. 96, to which you refer, which stated, without assigning adequate 
reasons therefor, that yeowomen could not be considered as "sailors," 
within the meaning of the original of the instant statute. 

In my opinion, enlistment in the United States Navy constitutes the 
person accepted a "sailor," as that word is used in the instant statute, and 
the character of the work to which a person so enlisted may be assigned is 
entirely immaterial in determining his or her character as a "sailor" in the 
"navy'." 

Accordingly, I answer your question that, in my opinion, such a woman 
as you have described, who enlisted and served in the United States Navy 
during the World War as a yeoman (F), is entitled to the remission of the 
fee for a broker's license, set forth in said section 167A. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Conservation — Appropriation for Maintenance 
and Propagation. 

Aug. 31, 1939. 
Hon. Ernest J. Dean, Commissioner of Conservation. 

Dear Sir: — You have asked me, in effect, if your department may 
use funds appropriated by St. 1939, c. 309, § 2, item 296, to pay therefrom 
a sum on a W. P. A. project for the surveying of "all fish hatcheries and 
game farms" in the State. 

St. 1939, c. 309, § 2, item 296, provides: — 

"For other maintenance expenses of game farms and fish hatch- 
eries, and for the propagation of game birds and animals and food 
fish, $100,000 00" 

I am of the opinion that under the above appropriation, the purposes 
of which are specifically set forth as ^' maintenance^^ and ^^ propagation,'^ 
you have no authority to spend any portion thereof on such a W. P. A. 
survey as you describe in your letter. The language employed by the 
Legislature conveys no indication of a legislative intent that the money so 
appropriated should be spent in conjunction with the Federal government, 
or otherwise, for such a purpose as you suggest. 

Very truly yours, 

Paul A. Dever, Attorney General. 



104 P.D. 12. 

Retail Sale of Motor Fuel to Power Boats — Retail Dealers — License. 

Aug. 31, 1939. 
Hon. John P. McBride, Director, Division on the Necessaries of Life, 

Dear Sir : — In reply to your communication relative to persons oper- 
ating a place of business for the retail sale of motor fuel to power boats 
exclusively, I am of the opinion that such persons come within the definition 
of "retail dealer," as set forth in G. L. (Ter. Ed.) c. 94, as amended by 
St. 1939, c. 459, by the insertion of section 295A, so that such persons are 
subject to the license requirements and other provisions inserted in said 
chapter 94 by said St. 1939, c. 459. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Sale of Motor Fuel at Retail. 

Sept. 1, 1939. 
Hon. John P. McBride, Director, Division on the Necessaries of Life. 
Dear Sir : — You have written me as follows : — 

"There are a number of gasoline dealers who have existing contracts 
with customers, executed prior to the enactment of St. 1939, c. 459 (which 
amends G. L. [Ter. Ed.] c. 94), by the terms of which such customers 
receive their gasoline at an agreed price less than the posted price on the 
dispensing device. Will you please advise me whether, in your opinion, 
the provisions of said chapter preclude the continuance of sales under 
the terms of such contracts. 

Will you also advise me whether or not, in your opinion, the dealers 
having contract customers may quote, on one and the same pump or dis- 
pensing device, two prices, one for contract customers and one for other 
than contract customers." 

I answer your first question in the affirmative. 

The provisions of G. L. (Ter. Ed.) c. 94, § 295E, as inserted by St. 
1939, c. 459, are not violative of the constitutional prohibition against 
the impairment of a contract. They do not prohibit a dealer from carry- 
ing out such a contract as you mention, but, by the proper exercise of 
the police power, they do forbid him to post a sign offering to sell motor 
fuel at a higher rate than the rate stipulated in such contract and then 
selling at the lower contract price. 

I answer your second question in the negative. The legislative intent 
in the enactment of the provisions of section 295C of said chapter 94, as 
amended, was to the effect that when two signs were displayed they 
should each display the same statement of a price per gallon. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 105 

Constitutional Law — Motor Fuel Sales at Retail — Trading Stamps. 

Sept. 7, 1939. 

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

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

"In order that the department and the Director of the Division on the 
Necessaries of Life may properly interpret the law in relation to certain 
matters which are now before us relative to the Motor Fuel Sales Act, as 
most recently amended by St. 1939, c. 459, your opinion upon the law 
applicable to the following questions is requested : — 

(1) May a retail dealer in motor fuel who has posted on a pump or 
other dispensing device the price for which motor fuel is sold, as provided 
by the Motor Fuel Sales Act, lawfully give trading stamps to customers 
purchasing such motor fuel from such pump, one stamp to be given for 
each ten-cent purchase, such stamps being ultimately redeemable, when 
a fixed number have been acquired, in cash or merchandise at fixed 
amounts, such amounts being approximately two per cent of the amount 
expended on purchases? 

If you answer the above question in the affirmative, — 

(2) May such a retail dealer include in the statement of the price at 
which motor fuel is sold at retail and posted upon a pump the words: 
'Trading stamps given'?" 

G. L. (Ter. Ed.) c. 94, § 295E, inserted by St. 1939, c. 459, as part of 
the Motor Fuel Sales Act, reads : — 

"The price posted on any pump or other dispensing device from which 
motor fuel is sold, as required by section two hundred and ninety-five C, 
shall remain posted thereon and continue in effect thereat for a period of 
not less than twenty-four consecutive hours. No retail dealer shall sell 
motor fuel at any price other than the price so posted at the time of the 
sale. No premiums, rebates, allowances, concessions, prizes or other 
benefits shall be given directly or indirectly by any retail dealer so as 
to permit any purchaser to obtain motor fuel from such retail dealer at 
a net price lower than the posted price applicable at the time of the sale. 
In no transaction in which a retail dealer may fix or set a single price or 
charge for the sale of a quantity of motor fuel, together with some other 
commodity or service, shall such single price or charge be less than the 
aggregate of the charge, in accordance with the posted price, for the 
motor fuel involved in the transaction, plus the charge for such other 
commodity or service when the same is sold or rendered separately, rather 
than in combination with the sale of motor fuel." 

The Motor Fuel Sales Act was deemed by the General Court necessary, 
in connection with the sale of motor fuel by retail dealers, to prevent 
frauds upon customers and to regulate trade practices injurious to the 
interests of the general pubhc welfare ; and was passed by the Legislature 
in the exercise of the police power. 

If the business of selling motor fuel at retail was, in the reasonable 
judgment of the Legislature, particularly fraught with such dangerous 
opportunities for fraud and such practices, its selection of the special regu- 
latory provisions of the act with regard to the business of selling motor 
fuel at retail was not an unreasonable mode of classification by the Gen- 
eral Court. Every presumption as to the considered and reasonable char- 



106 P.D. 12. 

acter of the legislative determination in this respect is to be made in favor 
of the enactment. The language of the above-quoted section 295E plainly 
and specifically forbids the giving of benefits which directly or indirectly 
enable the purchaser to obtain motor fuel at a net price lower than the 
posted price. 

It is plain from the facts stated in your letter and from what has been 
said in the opinions of the courts concerning the nature of trading stamps 
that the giving of trading stamps to purchasers of motor fuel does result 
indirectly, if not directly, in the obtaining by the customer, in addition 
to his motor fuel, of something else of value, the whole or a portion of 
which, at least, when the stamps are converted into cash or merchandise, 
is allocable to offset the purchase price of the motor fuel as posted. This in 
effect allows such customer a lower net price for such fuel than that posted 
by the dealer. 

The statute does not attempt to make trading stamps as such illegal 
in any sense, but, incidental to the main purpose of the act, forbids their 
use in common with other "benefits" in connection with practices for- 
bidden to the specified class of dealers. 

This being so, the character of trading stamps as not unlawful in them- 
selves is immaterial. Their status in Massachusetts, as outlined by our 
Supreme Judicial Court (O^Keeffe v. Somerville, 190 Mass. 110; Coynmon- 
ivealth V. Sisson, 178 Mass. 578; Opinioji of the Justices, 208 Mass. 607; 
ibid., 226 Mass. 613), is not affected by this legislation. They are not 
singled out as a forbidden thing to be given by a motor fuel dealer to a 
customer but are included inferentially in such prohibition by the appli- 
cable phrase, which covers all benefits which may be given for the purpose 
of defeating the main intent of the law, namely, "premiums, rebates, 
allowances, concessions, prizes or other benefits." Whatever view may be 
taken as to the power of the General Court to legislate with relation to the 
use of trading stamps as such {Rast v. Van Deman, 240 U. S. 342; Tanner 
V. Little, 240 U. S. 369; Pitney v. Washington, 240 U. S. 387), its power to 
forbid the employment of a lawful commodity or token in aid of a for- 
bidden transaction is beyond doubt. The instant statute involves no 
discrimination against the use of trading stamps for lawful ends, and no 
discrimination against the business of deahng in trading stamps as such. 

The opinion of the Supreme Court of Pennsylvania, Bristol-Meyer Co. v. 
Lit Bros., 336 Pa. St. 81, and that of the Supreme Court of Michigan, 
People V. Victor, 287 Mich. 506, concerning the use of trading stamps, were 
rendered in connection with statutes dissimilar to the instant one, and their 
conclusions and reasoning concerning the employment of such stamps are 
:not applicable to the question before me. 

I answer your first question in the negative. Having so answered your 
first question, no answer to your second question is required. 

Yours very truly, 

Paul A. Dever, Attorney General. 

Civil Service — Powers of the New Civil Service Commission. 

Sept. 8, 1939. 
Civil Service Commission. 

Gentlemen : — I am in receipt of a letter written on behalf of your 
Commission, which reads as follows : — 

" I hereby request your opinion on the following two questions. In order 



P.D. 12. 107 

to present them properly, it is necessary to state certain facts related to 
them. 

On December 2, 1938, this Commission certified a list of names to an 
appointing power, which did not include the appointee in question. The 
following day the Commission received letters from No. 2 on the list and 
No. 4 on the general list, withdrawing their names from further considera- 
tion. After first voting not to accept the resignations, the full Board, on 
January 4, 1939, after hearings, voted to certify two additional names, 
which included the name of the appointee, who was promptly appointed 
on January 5, 1939, and notice thereof received by the Commission. 

Thereafter a number of hearings were held, and on April 29, 1939, the 
Commission voted to rescind the certification of names which included the 
two additional names and to re-establish the eligible list as it was formerly, 
to certify names from that list, and to cancel the appointment of the ap- 
pointee. No notice of such cancellation was ever sent to the appointing 
power or to the individual who was appointed. On May 17, 1939, the 
Board voted to rescind the vote of April 29, 1939, which vote resulted in 
restoring the list of January 4, 1939. 

Question No. 1. Has the present Civil Service Commission the power 
now to cancel the appointment of the appointee who was appointed from 
a duly certified list and whose probationary appointment has now become 
permanent by virtue of having served for longer than six months, no fraud 
or other wrongful act being chargeable against him? Fraud or wrongful 
acts, if any, consisted in the appointee's father bringing pressure against 
his own subordinates to withdraw their names from civil service con- 
sideration. The appointee's father was also the head of the plant in which 
the appointee was placed and his recommendations were generally accepted 
by the appointing power. 

Question No. 2. Has this Commission the legal power to reverse a final 
action taken by the former Commission based on a construction as to what 
constitutes fraud on the civil service, where no material evidence has been 
presented to it which was not before the predecessor Commission, and 
where there is no evidence that the decision of the former Commission 
was induced by improper considerations?" 

Paragraph 2 of section 2 of Rule 13 of the Rules and Regulations pro- 
vided that the Commissioner of Civil Service "may before or after an 
appointment has been made cancel a certification, if he finds that the 
certification was made in error, or that any person certified was placed 
on the eligible list through mistake or fraud; and, if a person has been 
appointed from such certification, he may revoke his appointment and 
order his discharge." 

It appears, from what you advise me as to the facts, that the whole 
subject matter was taken under advisement by the then Board, acting 
under the provisions of G. L. (Ter. Ed.) c. 31, § 2, as it then stood; that 
hearings were held and evidence heard concerning the perpetration of 
alleged fraud relative to the placing of a person on the eligible list; and 
that after consideration thereof and the passing of various votes the then 
Commission took what was, in fact and in law, final action upon the 
matter by a vote on May 17, 1939, which imports a finding that no per- 
son certified was placed on the ehgible list through fraud. In a few days 
thereafter the old Commission passed out of existence and the present 
Division of Civil Service came into being by virtue of St. 1939, c. 238. 

It is a general principle of administrative law that final decisions of 



108 P.D. 12. 

public officers and boards are binding upon their successors. People v. 
Preston, 62 Hun, 185. 

Where no material evidence is presented to the succeeding pubKc officers 
which was not before their predecessors and there is no evidence that 
the decision of the original officers was induced by improper considera- 
tions on their part, the succeeding officers are bound by the decision of 
their predecessors and may not review the latter's final determination. 
United States v. Bank of Metropolis, 40 U. S. (15 Pet.) 377; Osterhoudt v. 
Rigney, 98 N. Y. 222, 234. 

Upon the assumption that the facts which you have stated on the first 
page of your letter and in connection with "Question No. 2" on the sec- 
ond page thereof apply equally to Question No. 1 as well as to Question 
No. 2, I answer both your questions in the negative. 

Yours very truly, 

Paul A. Dever, Attorney General. 

Constitutional Law — Motor Fuel Sales Act — Nonapplication to Sales to 
the United States Government. 

Sept. 13, 1939. 

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

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

"In order that the department and the Director of the Division on 
the Necessaries of Life may properly interpret the law in relation to cer- 
tain matters now before us regarding the Motor Fuel Sales Act, G. L. 
(Ter. Ed.) c. 94, as most recently amended by St. 1939, c. 459, your 
opinion upon the law applicable to the following question is requested. 

Several retail dealers in motor fuel have contracts with the United 
States Government for the sale of such fuel, and the sales price of motor 
fuel in such circumstances is exclusive of both State and Federal taxes. 
The posted price on dispensing devices, as required by section 295C of 
said chapter 94, includes the taxes; and section 295E provides that no 
retail dealer shall sell motor fuel at any price other than the price so 
posted at the time of sale. 

May such retail dealers contract to sell to the United States Government 
at a price less the tax? " 

The State may not levy a tax upon the Federal government based on 
the direct sale to it of motor fuel for the use of its motor vehicles in ful- 
filling the needs of the government's own activities. 

This principle of law applies to a tax on motor fuel levied as is our 
Massachusetts tax. Panhandle Oil Co. v. Knox, 277 U. S. 218. 

There is nothing in the recent decision of the United States Supreme 
Court in Groves v. New York, 83 N. Y. Sup. Ct. Op. 588 (Mar. 27, 1939), 
which alters this principle as applied to a tax on motor fuel as above 
described. See G. L. (Ter. Ed.) c. 64A, § 12. 

This being so, the Motor Fuel Sales Act must be interpreted as not 
having been intended by the General Court to apply to such sales to the 
United States, in order that it and its various provisions bound up with 
the making of sales may not be unconstitutional in their meaning or in 
their apphcation. 

In view of these considerations, I answer your question in the affirmative. 

Yours very truly, 

Paul A. Dever, Attorney General. 



p. D. 12. 109 

State Board of Retirement — Payments in Emergency Cases. 

Sept. 25, 1939. 
State Board of Retirement. 

Gentlemen : — I am in receipt from you of a letter relative to the 
return of accumulated assessments to members of the State retirement 
system who cease to be employees. The letter reads, in part, as follows: — 

"1. Has the Board discretionary powers under this paragraph to make 
payments in less than thirty days in emergency cases? 

2. Has the member a legal right to file an application for a refund 
before he has terminated service? 

3. If your answer to question two is in the affirmative, must the Board 
reckon the thirty-day period from the date of filing the application or 
from the date of termination of service?" 

The apphcable statute, G. L. (Ter. Ed.) c. 32, § 5A (3) (a), as inserted 
by St. 1938, c. 439, § 1, reads as follows: — 

"Any member who ceases to be an employee while ineligible for retire- 
ment in any manner other than by retirement, shall be paid the amount 
of his accumulated assessments in not less than thirty days after the 
fihng of an application therefor unless sooner reinstated in service; pro- 
vided, that the board, in its discretion, may withhold such accumulated 
assessments for not more than one year after the member last rendered 
service, if said member after a previous discontinuance of service had re- 
entered the service and failed to redeposit the sum which he withdrew 
at the time of last discontinuance, as provided in paragraph (12) of sec- 
tion three." 

The phrase "in not less than thirty days after the filing of an application 
therefor unless sooner reinstated in service" is mandatory in so far as 
it requires you to make the payment in question at the end of thirty days 
from the time of filing. The phrase, however, does not deprive you of 
discretion to pay the money in a shorter period, and does not require you 
to wait thirty days before making the payment. I answer your first ques- 
tion in the affirmative. 

The statute provides that any member who ceases to be an employee 
shall be paid "after the filing of an apphcation." It is apparent that these 
words mean that the application is to be filed by one who has ceased to be 
an employee. Therefore, the application cannot be filed in advance of the 
employee's termination of service. I answer your second question in the 
affirmative. 

The thirty-day period is to be reckoned from the date of the filing of the 
application. The language of the statute in this respect is, "in not less 
than thirty days after the filing of an application." This statement ade- 
quately answers your third question. 

Very truly yours, 

Paul A. Dever, Attorney General. 



110 P.D. 12. 

Massachusetts Aeronautics Commission — Rule Making Power. 

Sept. 25, 1939. 

Hon. Chandler Hovey, Chairman, Massachusetts Aeronautics Commission. 

Dear Sir : — You have submitted to me the following regulation which 
you desire to make under the provisions of G. L. (Ter. Ed.) c. 90, § 39, as 
inserted by St. 1939, c. 393, § 3, which gives to your Commission the power 
"to make, and thereafter amend or repeal, reasonable rules and regula- 
tions relative to" aeronautical activities and facilities within the Common- 
wealth : — 

"Rules and regulations promulgated by the Civil Aeronautics Authority, 
currently in force and on file with the Commission and with the Secretarj^ 
of the Commonwealth, shall, except as otherwise specifically provided 
herein, govern all aeronautical activities and facihties within the Common- 
wealth of Massachusetts. Violation of such rules and regulations shall be 
deemed a violation of the requirements of the Commission and shall subject 
the person or persons in violation thereof to prosecution in accordance 
with G. L. (Ter. Ed.) c. 90, § 44, as inserted by St. 1939, c. 393, § 3." 

I am of the opinion that you may not, under the guise of a regulation or 
a rule made by you by virtue of said chapter 393, incorporate by reference 
rules and regulations made by another civil aeronautics authority, whether 
of the United States or of some other jurisdiction, even if the same are 
currently in force, and even if you file with the Commission and with the 
Secretary of the Commonwealth a copy thereof. 

The delegation to you by the Legislature of authority to make rules and 
regulations does not permit you, under the form of rules and regulations 
made by you, to establish by reference rules and regulations made by 
another organization, nor to provide that violation of the rules of such 
other authority should be deemed a violation of your own rules, and so 
subject persons violating them to prosecution under the terms of said 
chapter 393. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commissioner of Correction — Prison Industries. 

Sept. 27, 1939. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — You have asked my opinion "as to just what authority 
the Commissioner has to remedy the situation," of which you advise me, 
in regard to certain prison industries at the house of correction at Deer 
Island. 

The authority given you by G. L. (Ter. Ed.) c. 127, § 51, to determine, 
with the master, the industries "to be established and maintained" at a 
house of correction is not exhausted by an original determination to estab- 
lish particular industries. You and the master, under this grant of power, 
have authority at any time to make a determination as to what industries 
shall be maintained at a particular institution, and this includes the ability 
to determine at any time which industries already established shall be 
maintained and which shall no longer be maintained. 

If you and the master should now, in the exercise of your sound judg- 
ment, determine that any one of the industries originally established at 



P.D. 12. Ill 

this house of correction should be maintained, the others would in effect 
cease to be in existence for operative purposes. After such a determination 
it would seem that the instructors appointed to these industries could be 
removed by the master, with your approval, under G. L. (Ter. Ed.) c. 127, 
§ 52, in a proper manner, by reason of the virtual abolishment of the 
industries for whose teaching they had been employed. 

You are, of course, not required to act in the way which I have outhned. 
Your course of conduct should be based on a consideration of the existing 
state of facts, upon which the Attorney General does not pass. I am merely 
suggesting, in answer to your inquiry, how you might exercise authority, 
with the master, to remedy a situation which you have apparently decided 
needs to be remedied. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Board of Registration of Hairdressers — Certificates of Registration — Fees, 

Sept. 27, 1939. 
Mrs. Margaret M. O'Riordax, Director of Registration. 

Dear Madam : — You have asked mj' opinion upon a question of law 
propounded by the Board of Registration of Hairdressers. 

The question is this: "Can we charge five dollars for the issuance of a 
dupHcate renewal license?" 

The Board of Registration of Hairdressers does not issue licenses such 
as it refers to in its letter. It does, however, under the terms of G. L. 
(Ter. Ed.) c. 112, §§ 87T-87 JJ, as inserted by St. 1935, c. 428, § 2, have 
the power to register hairdressers and other similar persons in designated 
classes, under conditions prescribed by the statutes, and to grant certifi- 
cates of registration to such as are in fact registered. 

The provisions of the applicable statute, G. L. (Ter. Ed.) c. 112, § 88 
(3), are mandatory and not only authorize but require the said Board to 
charge a fee of five dollars, no more and no less, for the issuance of a dupli- 
cate certificate of registration, which may be issued only when the original 
thereof is shown to have been lost or destroyed. 

\'ery truly yours, 

Paul A. Dever, Attorney General. 

Insurance — Mutual Insurance Company — Foreign Company. 

Oct. 9, 1939. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir : — You have asked my opinion, in effect, as to whether you 
have the authority to issue a license to transact in this Commonwealth 
the business of a mutual accident and health insurance company, under 
the provisions of G. L. (Ter. Ed.) c. 175, to the Mutual Benefit Health 
and Accident Association of Omaha, Nebraska. 

I answer your query in the affirmative. The sole material point for 
consideration in connection with your inquiry is this: Has the Nebraska 
company the authority to perform those acts which are the material char- 
acteristics of a mutual insurance company under the laws of Massachu- 
setts? If it has, then you may license it. In so far as it exercises those 
functions, it may do business under your license. If it also possesses au- 



112 P.D. 12. 

thority to perform other acts which in their exercise would place it in the 
category not of a mutual company under our laws but of an assessment 
company, you have ample powers to prevent its use thereof in Massa- 
chusetts. 

It is, however, immaterial upon the question as to whether it is a mutual 
company under out laws that it has other powers which enable it in its 
state of incorporation, or elsewhere outside of Massachusetts, to function 
as an assessment or other type of insurance company not permitted to do 
business as a foreign company in this Commonwealth. It is also immaterial 
in this connection that it is not expressly forbidden by the laws of the 
state of incorporation to merge with other forms of insurance companies. 
It is also immaterial in this connection that it is not called a "mutual" 
company, or that it is designated, called or classified under some other 
name in its state of incorporation, if in fact it possesses the characteristics, 
by grant of authority from the legislature creating it, which go to make up a 
mutual company under our laws, even if it were incorporated under the 
designation of assessment company or mutual assessment company and 
even if it possesses other powers in addition to those of a Massachusetts 
mutual company. See I Op. Atty. Gen. 1; 115; 339. 

The characteristics or distinguishing features of a mutual insurance 
company in Massachusetts, apart from statute, have been definitely set 
forth by one of my predecessors in office, in an opinion dated March 24, 
1913, to the then Commissioner of Insurance (not published), as, — "first, 
membership of all policy holders in the company; second, payment of 
premiums which may be either in the form of cash or of a premium note, 
or both, with liability to assessment if necessary; and third, the creation 
of a common fund devoted to the payment of losses." 

To these should be added, as a statutory characteristic, — fourth, the 
power to limit in its by-laws or policies the liability for future assessments. 

The instant company, judging from the various documents which you 
have laid before me, possesses all these characteristics. The fourth char- 
acteristic, to which I have referred above, was given to it specifically by a 
recent amending statute of Nebraska, referred to by you as legislative 
bill No. 78. The other characteristics mentioned it possesses, as I gather 
from your letter and accompanying documents, by force of the applicable 
statutes of Nebraska. 

The company is expressly authorized, as you inform me, by a Nebraska 
law, amended April 8, 1939, to issue a contingent liability pohcy "during 
such period as its surplus and reserves are equal to those required of a 
stock or mutual company organized to transact the same line of business." 
The limitation imposed upon the authority of the company by the above- 
quoted words of the statute is immaterial to a consideration of its char- 
acter as a mutual company. Their effect is merely to deprive the com- 
pany of authority to act as a mutual insurance company, in the sense 
in which those words are used in the Massachusetts law, under certain 
conditions. When those conditions exist, the company has no power to 
issue "mutual" policies in its home state or here. 

It is obvious that the company may not write assessment insurance 
policies here. It is also plain that the fact that it may write them else- 
where does not prohibit it from writing mutual policies here, having com- 
plied with all the technical prerequisites for doing business in Massachu- 
setts as a foreign company. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 113 

State Employee — Investigator in the Registry of Motor Vehicles — 
Determination of Widow's Annuity. 

Oct. 9, 1939. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sir:— You inquire as to what action should be taken on the 
application of the widow of a former investigator in the Registry of Motor 
Vehicles, doing police duty, who died on August 12, 1937, for an annuity 
under the provisions of G. L. (Ter. Ed.) c. 32, § 89, as amended by St. 
1936, c. 326. 

Said section 89, as amended, provides for an annuity to the widow of 
such an investigator who "dies as a natural and proximate result of un- 
dergoing a hazard peculiar to his employment while in the performance 
of his duty." There are other circumstances under which an annuity 
may be payable to an investigator's widow, mentioned in the statute, 
but those set forth in the quoted phrase appear, from the communica- 
tions and reports which you have submitted, to be the ones applicable 
to the instant application. 

The duty of determining that the investigator's death occurred in the 
manner set forth in the above-quoted phrase of the statute rests upon 
you, in the first instance, and it must "be proved to your satisfaction" 
that said death occurred "as a natural and proximate result of under- 
going a hazard peculiar to his employment while in the performance of 
his duty." Your determination will be upon the facts of the case, and 
you must be satisfied by a fair preponderance of the evidence before you 
that the death occurred in the manner described in the first above-quoted 
phrase of said section. The Attorney General does not pass upon ques- 
tions of fact. Your determination, if favorable to the widow's applica- 
tion, must also be approved by the Governor and Council. G. L. (Ter. 
Ed.) c. 32, § 89, as amended. 

It is also your duty under said section 89, if you make a determination 
in favor of the widow, to designate two physicians who, together with 
another designated by the Commissioner of Public Health, shall form a 
board, and the certificate of such board to the Treasurer of the Common- 
wealth that the deceased's "death was the natural and proximate result" 
of undergoing a "hazard peculiar to his employment" is a prerequisite 
to the payment of said annuity. 

I am of the opinion that before making a determination j^ou should 
yourself hold a hearing whereat the widow, with the aid of counsel if she 
desires, may have an opportunity to submit to you such material evi- 
dence as she may desire to have considered by you in connection with 
such other evidence as may be presented by officers and employees of 
the Commonwealth or others. 

The duty of passing upon the questions involved in the widow's appli- 
cation rests upon 3'Ou and not upon the Registrar of Motor Vehicles, 
though his reports, records and evidence upon material matters of fact 
may be considered by you so far as they assist you in arriving at a de- 
termination. 

Very truly yours, 

Paul A. Dever, Attorney General. 



114 P.D. 12. 

Comiptroller — Expenses of State Employees. 

Oct. 9, 1939. 
Hon. George E. Murphy, Comptroller. 

Dear Sir : — You have asked my opinion upon several questions rela- 
tive to the appHcation of St. 1939, c. 309, § 4, concerning expenses of em- 
ployees for meals. 

1. Your first question, in effect, is as to the meaning of the last sentence 
of said section 4, which reads : — 

"Nothing herein contained shall be construed as preventing a depart- 
ment from approving allowances for meals, not exceeding one dollar and 
seventy-five cents in any one day, for its employees stationed beyond 
commuting distance from their homes for a period of more than twenty- 
four hours." 

The language of the above-quoted sentence, read as part of the context 
of the section as a whole, creates an exception to the general rule set up 
in the first sentence and permits a total expenditure of $1.75 a day for 
meals, irrespective of whether or not part of such sum be spent for a mid- 
day meal by an employee stationed at the stated distance from his home 
for the indicated period. If such expenditure has the specific approval 
of the employee's department, he should be repaid by you for such expendi- 
ture of SI. 75, irrespective of whether or not part of it was paid for a midday 
meal or whatever its breakdown may show with relation to its allocation 
to the different meals of the day. 

2. Your second question, in effect, is as to the meaning of the words 
"special commissions" as employed by the General Court in the second 
sentence of said section 4, with regard to which another exception to the 
general rule noted above is set forth, namely, an exception in favor of 
"members of legislative committees or special commissions." When the 
words "special commissions" are thus read in connection with the whole 
context of the phrase where they occur, it becomes plain that the word 
"legislative" used in such phrase modifies both the word "committees" 
and the words "special commissions" therein, thus showing that it was 
the intent of the General Court that this exclusion should be apphcable 
to the various legislative committees and to the various legislative com- 
missions which may be created for special purposes, usually of a temporary 
nature, by particular acts or resolves of the General Court, — not that the 
exclusion should apply to any of the boards, committees or commissions 
established by general acts as part of the permanent administrative service 
of the Commonwealth. 

3. Your third question is, in effect, as to whether the provisions of other 
statutes which permit payment of a certain amount of money "and ex- 
penses" to employees are affected by the enactment of said section 4. 
Said section 4 sets forth general rules relative to all persons working for 
the Commonwealth, with certain specific exceptions. The intent of the 
Legislature plainly was to enact a measure intended for application 
throughout the whole pubHc service. Provisions of earlier laws for the 
payment of "expenses" are by imphcation to be read, so far as the word 
"expenses" is concerned, in the fight of this new statute, which expficitly 
declares what charges for meals may lawfully be "expenses," and that 
quoted word in other statutes must be now applied so as to conform to the 



P.D. 12. . 115 

express provisions of section 4. If this be done, the statutes will not be in 
conflict but will form an harmonious whole. 

4. Your fourth question is, in effect, as to whether employees required 
by their departments, under the exigencies of public service, to work on 
Saturday afternoon may be paid for the expense of their midday meal on 
Saturday, notwithstanding the prohibition against such payment in the 
first sentence of said section 4. No exception to this general prohibition 
forbidding payment for a midday meal, in relation to meals eaten on 
Saturday, is contained in said section 4, either expressly or by implication. 
However beneficial such an exception may be thought to be, its absence 
cannot be supplied in the guise of interpretation. The Legislature alone 
can supply the desired exception. 

5. Your fifth question, in effect, asks whether employees who are re- 
ceiving room and board for an amount which is not subject to a partition, 
as between the various items which go to make up the total, are excepted 
from the general prohibition of section 4, with relation to the midday meal, 
and whether they are the only ones so excepted. I answer your question 
to the effect that such employees are excepted from the prohibition by that 
phrase of the statute which pro\ides : — 

"Nothing herein contained shall apply to state employees who receive 
as part of their compensation a non-cash allowance in the form of full or 
complete boarding and housing ..." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Underground Easement — Interference by Landowner. 

Oct. 10, 1939. 

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

Dear Sir : — You have asked my opinion as to the rights of owners to 
erect structures on land in which an underground easement for the con- 
struction, maintenance and repair of certain water mains has been ac- 
quired by eminent domain. 

The principles of law applicable to such a situation are simple and not 
essentially different from those applicable to rights of way and similar 
easements on the surface of the ground. 

The owner of property subject to an easement has the right to make 
incidental changes in the use of the real estate over which the easement 
extends, provided there is no substantial impairment of the easement. 
Dickinson v. Whiting, 141 Mass. 414; Clark v. Worcester, 125 Mass. 226. 
This principle applies with like force to an underground easement. Pomeroy 
V. Salt Co., 37 Ohio St. 520. 

This being so, unless you are prepared to show by prevailing evidence 
that the erection of particular structures would result in a material inter- 
ference with your mains by crushing or breaking them, or with your right 
to repair the same incidental to their maintenance, the right of the owner 
of the real estate to use the surface by erecting structures ought not to be 
restricted and would probably be sustained by the courts. 

The question as to the extent of the right of a particular owner of real 
estate, in which such an easement has been taken, to use the surface thereof 
is primarily one of fact, upon which the Attorney General does not pass. 



116 P.D. 12. 

Its preliminary determination is for your Commission, applying to it the 
principles of law to which I have referred, these principles being, in effect, 
the same principles laid down for your guidance in a letter written to you 
on September 8, 1939, by H. E. Weir, Esquire, which you have laid before 
me. Ultimately, the determination of all the questions involved would be 
for a judicial tribunal, if a real estate owner felt himself aggrieved by your 
actions in circumstances such as you have mentioned in your letter. 
The decision of Mr. Justice Lummus, sitting as a single justice, in Eastman 
V. Cline, which you have called to my attention, indicates that in that 
particular case he was of the opinion that upon the evidence then before 
him it did not appear that the erection of dwelling houses upon the land 
then under consideration would so interfere with the construction, mainte- 
nance and repair of the subterranean water mains in such land as to prevent 
the erection of such dwelling houses. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Fire Marshal — License — Time for Taking an Appeal. 

Oct. 11, 1939. 
Mr. Stephen C. Garrity, State Fire Marshal. 

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

"Under G. L. (Ter. Ed.) c. 148, § 13, provision is made for the right of 
appeal to the State Fire Marshal within ten days after the granting of 
licenses by the local licensing authorities under this section. 

Such an appeal was received at this office on October 6, 1939, . . . from 
the granting of a license by the Waltham city council on September 25, 
1939, to the Shell Oil Company, Inc., for the erection of a sixteen-car 
garage, and the storage of 185,000 barrels of petroleum products, off 
Waverly Oaks Road in the city of Waltham. 

I am presenting for your consideration the arguments of counsel for the 
person making the appeal, who claims that in the ten days allowed by law, 
Sunday, October 1st, should not be counted in totaling the number of 
days." 

The apphcable portion of G. L. (Ter. Ed.) c. 148, § 13, reads: — 

"Any person aggrieved by the granting of a license hereunder on the 
ground that the exercise thereof would constitute a fire or explosion hazard 
may, ly^y/im ien rfays after the granting thereof , appeal to the marshal . . ." 

From the facts as you have stated them, the license in question was 
granted by vote of the licensing authorities of Waltham on September 25, 
1939. September 26th is the first day of the period of ten days within 
which the appeal is to be filed. Bigelow v. Willson, 1 Pick. 485; Wiggin v. 
Peters, 1 Met. 127; Bemis v. Leonard, 118 Mass. 502; Metropolitan Coal 
Co. V. Boutell Transportation & Towing Co., 185 Mass. 391; In re Mar- 
cellino, 271 Mass. 323. Sunday, October 1st, is to be counted as one of the 
days within the ten-day period. 

The general rule in Massachusetts, in computing time within which an 
act is to be performed, is, that if the period of time indicated exceeds one 
week Sunday is included, but if it is less than one week Sunday is excluded. 
Cunningham v. Mahan, 112 Mass. 58, 59; Stevenson v. Donnelly, 221 Mass. 
161, 163. See Opinion of the Justices, 291 Mass. 572, 575. 



P.D. 12. 117 

It follows, then, that the last day of the period of ten days after the 
granting of the license, within which said section 18 authorized the taking 
of an appeal, was, on the facts which you have laid before me, October 5, 
1939. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Auditor of the Commonwealth — Division of Liquidations — Authority for 

Audits. 

Oct. 23, 1939. 
Hon. Russell A. Wood, Auditor of the Commonwealth. 

Dear Sir: — I am in receipt of a letter from you which reads: — 

"I wish to acknowledge receipt of your letter of October 9, 1939. With 
further reference to this matter will you please advise me as to whether 
or not I have the authority to audit the accounts of the Director of Liquida- 
tions and also the accounts of each one of the eighteen closed banks. 

Will you also please advise me, if I have the authority to audit the 
accounts of the eighteen closed banks, whether or not the expenses of mak- 
ing such audits, including both personal services and travehng expenses, 
can be assessed by the Director of Liquidations on the respective closed 
banks." 

G. L. (Ter. Ed.) c. 11, § 12, provides: — 

"The department of the state auditor shall annually make a careful 
audit of the accounts of all departments, offices, commissions, institutions 
and activities of the commonwealth ..." 

St. 1939, c. 515, § 1, estabhshed in the Department of Banking and 
Insurance, but not subject to its control, "a division of liquidations, which 
shall be in charge of a director, who shall be known as the director of 
liquidations." 

It is obvious that the Division of Liquidations is an office or activity 
of the Commonwealth and the place of director an office thereof, so that 
the division and its director fall within the sweep of section 1 of said chap- 
ter 515, and are subject to your authority to audit their accounts. 

Although by section 2 of said chapter 515 the property and business of 
banks formerly in the possession of the Commissioner of Banks are vested 
in said director, such property and business are vested in him, as they were 
in the Commissioner, to hold only for the contemplated purposes of their 
acquisition, namely, the preservation of the property against further loss 
and its ultimate distribution among those entitled to receive it. Vigilante 
V. Old South Trust Co., 251 Mass. 385, 388. Suffolk Knitting Mills v. 
Cosmopolitan Trust Co., 252 Mass. 394, 396. 

The entity of the banks as such is not wholly lost by the action of the 
Commissioner in taking them over. Commissioner of Banks v. Cosmopoli- 
tan Trust Co., 247 Mass. 334, 345. 

It follows, from these applicable principles of law, that the closed banks 
themselves cannot be said to be, either collectively or individually, "in- 
stitutions or activities of the Commonwealth," within the meaning of G. L. 
(Ter. Ed.) c. 11, § 12, and there is therefore no authority vested in the 
Auditor of the Commonwealth to audit their accounts as such. 

Very truly yours, 

Paul A. Dever, Attorney General. 



118 P.D. 12. 

Old Age Assistance — Actual Need of Immediate Relief. 

Oct. 23, 1939. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir : — I am in receipt of your letter relative to an application 
for old age assistance. 

I assume, from the brief statement of facts which you have given me, 
that the applicant is the owner of an equity in real estate, upon which she 
does not reside, which cannot at the present time be advantageously sold. 

The further facts which you set forth, namely, that the aged person 
was discharged from the custody of the Department of Mental Diseases 
(now the Department of Mental Health) twelve years ago as a person not 
requiring further institutional care, and that she is now under guardian- 
ship, are immaterial in relation to the provisions of G. L. (Ter. Ed.) c. 118A, 
§ 4. If the applicant does not in fact reside on the real estate mentioned 
in said section 4, the provisions thereof as such are not apphcable to her. 

Relief under G. L. (Ter. Ed.) c. 117, § 14, might be available for the 
appUcant if she is in actual need of immediate relief, irrespective of her 
ownership of an equity in real estate which is not now available for her 
support. A person may have property and yet be in need of immediate 
rehef, from inability to avail himself of it. Symmes Arlington Hospital 
Inc. V. Arlington, 292 Mass. 162, and cases there cited. 

Yours very truly, 

Paul A. Dever, Attorney General. 

Public Welfare — Funerals of Indigent Persons — Reimbursement. 

Oct. 24, 1939. 

Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir : — Replying to your letter relative to reimbursement of 
cities and towns for certain expenses incurred for funerals of indigent 
persons, I advise you that under the law, G. L. (Ter. Ed.) c. 117, § 18A, 
as inserted by St. 1938, c. 465, you are not authorized to make reim- 
bursement for the funeral and burial expenses of such a person in excess 
of the sum of one hundred dollars, as set forth in said section 18A. 

The things to be provided and specifically to be done in connection 
with such funerals, as set forth in said section 18A, are not intended to 
be an exclusive list of all things necessary to be done in connection with 
such a funeral, but are intended to assure a minimum of decent and re- 
spectful conduct of such a funeral. The purchase of a grave or the cost 
of the opening of a grave is of the essence of the expense of the burial, 
and is by implication included in the maximum expense allowed. The 
fact that the General Court did not see fit to mention those expenses spe- 
cifically, in connection with the other matters to which I have referred, 
does not mean that it intended to exclude them from the expenses which 
were to be paid for within the sum of one hundred dollars, but rather, 
regarding them as primary and essential expenses involved in the conduct 
of any funeral and burial, it enumerated the other things and functions 
which are set forth in the section to make sure that they were done or 
provided in addition to the bare essentials of providing a grave for the 
burial. 



P.D. 12. 119 

Moreover, the duty of providing and opening such a grave does not 
necessarily fall on the funeral director. Many cities and towns have par- 
ticular parts of cemeteries where indigent persons may be buried in a 
decent grave at no considerable expense. 

I answer the question contained in your letter to the effect that your 
department has no authority to reimburse, in the manner described 
therein, in e.xcess of the sum of one hundred dollars. 

Very truly yours, 

Paul A. Dever, Attorney GeneraL 

Steam Plants — Person Operating — Person in Charge — Special Licenses. 

Oct. 27, 1939. 
Hon. Eugene M. McSw^eeney, Commissioner of Public Safety. 

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

"Has a board of examiners of the Division of Inspection of the De- 
partment of Public Safety, constituted as provided in G. L. (Ter. Ed.) 
c. 146, § 64, the right to issue to a person a special license to operate a 
particular steam plant without at the same time giving that person the 
right to have charge of the plant, in accordance with the provisions of 
G. L. (Ter. Ed.) c. 146, § 49, relating to special licenses?" 

I answer your question in the affirmative. 

The particular provision of said section 49 relating to said special 
licenses reads : — 

"Special licenses: A person who desires to have charge of or to operate 
a particular steam plant may, if he files with his application for such ex- 
amination a written request signed by the owner or user of the plant, be 
examined as to his competence for such service and no other, and, if found 
competent and trustworthy, he shall be granted a Hcense for such service, 
and no other." 

I am of the opinion, in view of the manner in which the General Court 
has employed the word "or" in numerous places in other parts of the 
said section 49, that, as used with relation to "special licenses" in the 
quoted portion of said section 49, it was intended to have there a dis- 
junctive and not a conjunctive meaning. 

Accordingly, it follows that the said board of examiners has authority 
to grant to an applicant "who desires to have charge of or to operate a 
particular steam plant," under the provisions of said section 49 relative 
to special licenses, either a license to have charge of a particular steam 
plant or, instead thereof, a license to operate a particular steam plant. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Works — Town Zoning Law — Outdoor Advertising. 

Oct. 30, 1939. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sir : — You ask for an opinion in the matter of a town zoning law 
which seems to conflict with the existing State laws relative to advertising 
signs. 



120 P.D. 12. 

It is to be noted that St. 1933, c. 269, was passed after the decision in 
the case of Inspector of Buildings of Falmouth v. General Outdoor Adver- 
tising Co., Inc., 264 Mass. 85. This new act made definite changes in the 
former zoning act, G. L. (Ter. Ed.) c. 40, §§ 25-30, inclusive, in a manner 
similar to the changes made by St. 1925, c. 116, relating to the original 
zoning act. 

In the so-called Falmouth case the court said : — 

"It is plain, however, that when the words 'structures and premises' 
were added to the zoning act, a well co-ordinated and complete system 
for the establishment and regulation of billboards located on a public 
way — as the billboard in the case at bar was located — had been estab- 
lished and was in force. The Legislature had conferred upon the division 
authority over the erection and maintenance of billboards with the sub- 
ordinate right of cities and towns by ordinance or by-law to make further 
regulations or orders not inconsistent or at variance with the regulations 
promulgated by the division. 

It is the contention of the plaintiff that the by-law is valid and enforce- 
able under the zoning act as amended. While statutes in pari materia are 
to be construed as corroborative of each other. Rex v. Loxdale, Burr. 445, 
447, and that principle was followed in Church v. Crocker, 3 Mass. 17, we 
are of opinion that the Legislature did not intend by the amendment 
to the zoning act to include billboards and by implication to supersede 
and repeal G. L. c. 93, § 29. A statute is not to be deemed to supersede a 
prior statute in whole or in part in the absence of express words or clear 
implication. Brown v. Lowell, 8 Met. 172, 174. Copeland v. Mayor and 
Aldermen of Springfield, 166 Mass. 498, 504. Brooks v. Fitchhurg & Leom- 
inster Street Railway, 200 Mass. 8, 17." 

It is to be noted that the change in the general purposes of the zoning 
act as made bv St. 1933, c. 269, does not directly or indirectly refer to the 
subject matter of G. L. (Ter. Ed.) c. 93, § 29. 

No reference having been made by the amending act in the section 
setting out the purposes, it is not reasonable to infer that the Legislature 
intended that part of another section, which section does not relate to the 
purposes of the amendment, should be interpreted so as to give it a repealing 
or superseding power over a statute which had for a period of thirteen 
years been a part of the general laws of the Commonwealth. 

It is my opinion that the latter part of section 29 of G. L. (Ter. Ed.) 
c. 40, as amended, which reads: "and state and municipal officers shall 
refuse any permit or license for a new use of a building, structure or land 
which use would be in violation of any such ordinance or by-laws or amend- 
ment thereof," does not supersede the authority given your department 
under G. L. (Ter. Ed.) c. 93, § 29. 

Ver}^ truly yours, 

Paul A. Dever, Attorney General. 

Labor — Women and Children — Allowance for Meal Time — Consecutive 

Periods of Work. 

Oct. 31, 1939. 

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

Dear Sir : — You ask my opinion upon the following questions : — 
"G. L. (Ter. Ed.) c. 149, § 56, as amended by St. 1939, c. 377, which 



P.D. 12. 121 

regulates the hours of labor for women and children in industry, has this 
provision : — 

'If the work so performed by such a child or woman in one day is not 
continuous, but is divided into two or more periods, the work of such 
child or woman shall be so arranged that all such periods of work shall fall 
within a period of not exceeding ten consecutive hours.' 

The question arises: Is that period of ten consecutive hours to exclude 
or include the time which an employer must allow the employee for lunch 
or other meal? 

This situation has been presented to me: A woman who is limited by 
law to nine hours of work in a day reports to work at nine o'clock in the 
morning. She is given an hour for lunch, from 11 a.m. to 12 noon. She 
is also given one hour for supper, from 5 p.m. to 6 p.m. Must this woman 
be dismissed at seven o'clock in the evening, as there are ten consecutive 
hours between nine o'clock in the morning and seven o'clock in the even- 
ing, or may she be permitted to work until eight o'clock in the evening? 

In other words, is her work on that day continuous, although she has 
been given one hour for lunch and one hour for supper, or is her work 
divided into three periods, which in the words of the statute 'shall fall 
within a period of not exceeding ten consecutive hours'?" 

The answers to your questions are as follows : — 

(1) The period of ten consecutive hours includes the time allowed for 
lunch or other meal. 

(2) A woman who reports for work at nine o'clock in the morning and 
has an hour for lunch and another hour for supper must be dismissed 
no later than seven o'clock in the evening, as there are ten consecutive 
hours between 9 a.m. and 7 p.m. 

(3) Work which is interrupted by intervals for meals is not continuous, 
within the meaning of the statute, but is divided into two or more periods. 

In my opinion, the language of the statute is free from ambiguity and 
can fairly admit of no other interpretation. The word "consecutive" 
means succeeding one another with no interval or break. It is a contradic- 
tion in terms to say that "a period not exceeding ten consecutive hours" 
maj^ exceed ten hours through interrupting the period with intervals for 
meals. A meal period clearly is not a period of work and cannot reasonably 
be so included. In the interpretation of statutes providing maximum 
hours of labor meal periods have always been excluded from the hours of 
labor. Since this is so, it necessarily follows that the meal period consti- 
tutes an interruption of the work day, so that the work cannot be said to 
be continuous. If the statute were to be construed otherwise, the effect 
would be not to increase the spread of the work hours but to diminish it, 
since the continuous period of labor is limited to nine hours, and it is only 
by virtue of its interruption that it may be extended over a spread of ten 
hours. In point of fact G. L. (Ter. Ed.) c. 149, § 56, of which St. 1939, 
c. 377, is an amendment, makes express provision for posting notices of the 
time allowed for meals, by implication excluding them from the hours of 
work. 

If, however, the question admitted of doubt, the legislative history of the 
statute and a consideration of the beneficent purpose for which it was en- 
acted would remove it. 

The language appearing in said chapter 377 is found also in two other 
statutes enacted during the same session of the Legislature, chapters 348 
and 352. In considering the meaning of the language commonly adopted 



122 P.D. 12, 

in the three statutes it is important to consider them together. Obviously, 
the identical language of the three statutes must receive the same inter- 
pretation. 

Chapter 348 deals with the maximum hours of labor of boys between the 
ages of sixteen and eighteen and girls between the ages of sixteen and 
twenty-one, amendatory of G. L. (Ter. Ed.) c. 149, § 67. The earlier 
statute limited their employment in manufacturing, mercantile and other 
enumerated occupations to ten hours a day and fifty-four hours a week. 
The amendment reduces the hours of labor to nine hours a day and forty- 
eight hours a week, with the further provision that if the work performed 
in a day is not continuous but divided into two or more periods the person 
employing the boy or girl shall arrange his or her work so that all such 
periods of work should fall within a period of ten consecutive hours. 

Chapter 352 deals with the maximum hours of labor of minors under 
the age of sixteen, amendatory of G. L. (Ter. Ed.) c. 149, § 65. The earlier 
statute limited their employment in manufacturing, mercantile and other 
enumerated occupations to eight hours a day and forty-eight hours a week. 
The amendment retains these maximum hours, with the further provision 
that if the work of such minor in a day is not continuous but divided into 
two or more periods the person employing him shall arrange his work so 
that all such periods of work should fall within a period of nine consecutive 
hours. 

Chapter 377, the statute in question, deals with the maximum hours of 
labor of women and children, amendatory of G. L. (Ter. Ed.) c. 149, § 56. 
It partially overlaps the two foregoing statutes. The earlier statute limited 
the employment of such workers in manufacturing, mercantile and other 
enumerated occupations to nine hours a day and forty-eight hours a week, 
with certain permitted variations. With reference to meal periods, the 
statute provided : — 

"... Every employer . . . shall post . . . a printed notice stating the 
number of hours' work required of them on each day of the week, the hours 
of beginning and stopping work, and the hours when the time allowed for 
meals begins and ends, or, in case of mercantile establishments and of 
establishments exempted from sections ninety-nine and one hundred, the 
time, if any, allowed for meals. . . ." 

The amendment adds various occupations not hitherto covered by the 
statute, with the provision under consideration, that, if the work so per- 
formed by such child or woman in one day is not continuous but is divided 
into two or more periods, the work shall be so arranged that all such periods 
of work shall fall within a period of not exceeding ten consecutive hours. 

All these statutes were enacted upon petitions filed for the executive 
secretary of the Consumers League of Massachusetts. 

As the petitions were originally filed, they permitted employment only 
"in a stretch no longer than ten hours" in any one day. (House No. 1084.) 
The proponents of the bill subsequently consulted with the United States 
Department of Labor, Division of Labor Standards, for advice as to the 
legal phraseology in which the meaning of this clause might be expressed. 
The present wording was agreed upon by a committee of State and Federal 
labor officials, appointed by the Secretary of Labor upon the recommenda- 
tion of the Third National Conference on Labor Legislation. It followed 
no specific precedent and cannot be compared with any existing Federal 
law or regulation. There can be no question that it was intended to have 



P.D. 12. 123 

the same meaning as the original phrase, "in a stretch no longer than ten 
hours." 

The House of Representatives ha\'ing referred to the Committee on 
Labor and Industries the original petition, which eventuated in chapter 
377, leave to withdraw was voted on May 17, 1939. The Senate, on May 
25th, refused to concur in the House report, and substituted the bill. On 
June 8th the Senate adopted an amendment striking out the words "in a 
stretch no longer than ten hours" and substituting the present phraseology. 
The House concurred, after having amended the bill in other particulars, 
and after a further amendment by the Senate the bill was passed to be 
engrossed, by the Senate on July 10th and by the House on July 12th. 

The evil the Legislature sought to alleviate is apparent. It is described 
in a bulletin of the Consumers League (October 1, 1939), which commented 
on the legislation as follows : — 

"... There were . . . complaints that workers in occupations covered 
under the existing 48 hour law were forced to divide their work day into 
two or three periods with long intervals between, thus making their time 
away from home excessively long. Many employees were working at such 
high speed that they practically accomplished a day's work in their first 
shift of four hours and another day's work in their second shift of four 
hours when they returned to their job after an enforced leave of three or 
four hours. This resulted in an exhausting day of eleven or twelve hours 
in or near their place of occupation. This form of divided work day is 
called 'split tricks'." 

As the operation of the statute is particularly complained of by the hotel 
industry, it is of interest to note that a thorough study of employment in 
hotels and restaurants was made by the United States Department of 
Labor, Women's Bureau, in 1936 (U. S. Department of Labor, Women's 
Bureau, Bulletin 123), which summarized its investigation upon this 
point in the following words (p. 17) : — 

"Besides the irregularity of shifts in these industries an unfortunate 
feature is the disproportionate lapse of time from the beginning to the end 
of the day's work. In practically all other employment, except where the 
shift is very short, there is a recess at lunch time, lengthening the spread 
of hours (from beginning to end of the day) by the thirty, forty-five or 
sixty minutes of such lunch period over the actual hours of work. While 
the majority of hotel and restaurant employees have a similar arrange- 
ment, with the spread of hours not greatly in excess of the hours of work, 
there still are considerable numbers who, required to begin work early in 
the morning and quit work late in the evening, may have — to offer an 
extreme case as illustration — a spread of hours of as much as fourteen 
though actually at work but eight or nine. Two or three hours off duty 
once or twice a day cannot, under ordinary circumstances, be used to the 
personal or family advantage of the employee, while so long a day away 
from home as from 7 a.m. to 9 p.m., with perhaps another hour in transit, 
is grossly out of step with modern conditions of employment." 

In the introduction to a "Chart Showing State and Federal Hours 
Limitations," published by the United States Department of Labor, 
Division of Labor Standards, May 1, 1938, it is stated that among the 
'''chief elements of a strong law," is "a daily and weekly limitation of 
hours, and a limitation of the number of working days per week," and 



124 P.D. 12. 

that "a limit on the spread of daily hours gives the worker a greater assur- 
ance of an adequate rest period at the end of the day." 

It is clear, therefore, that the evil which the Legislature designed to 
eliminate was the spread of hours of labor by women and children beyond 
a ten-hour period from the time they report for work until the end of their 
work day. 

I am of opinion that the exclusion of meal periods in figuring the ten 
consecutive hours under the statute would defeat or tend to defeat its 
object. In the very case which you put, the spread of hours is increased 
to eleven by the exclusion of two one-hour meal periods. A more generous 
allowance of time for meals, which there is nothing in the law to prevent, 
would result in greater spread. 

The meaning and intent of the statute being clear, it is not to be per- 
verted by reason of the fact that in certain businesses and industries it will 
work a hardship. Considerations of that nature must be addressed to the 
Legislature, not to the Attorney General, whose duty is simply to construe 
the legislative mandate. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Employees — Service in the Organized Militia — Period of 
Service without Loss of Pay. 

Nov. 6, 1939. 
Brig. Gen. Edgar C. Erickson, The Adjutant General. 

Dear Sir: — In a recent letter you have advised me as follows: — 

"At the request of the President of the United States, the Commander- 
in-Chief of the Massachusetts National Guard will shortly issue orders to 
the National Guard requiring a period of seven days' field training, in 
addition to the usual fifteen-day field training which has already been 
performed. 

This training is ordered by the Commander-in-Chief under the authority 
given by sections 11 and 105 of the Mihtia Law, St. 1939, c. 425, effective 
November 2, 1939, the law having been revised during the present year. 

Your opinion is requested as to whether or not sections 54 and 56 of the 
Militia Law are applicable to this duty." 

G. L. (Ter. Ed.) c. 33, as amended by the insertion of a new chapter 33 
by St. 1939, c. 425, in sections 54 and 56 reads: — 

"Section 54. Any person in the service of the commonwealth, or of 
a county, city or town which, by vote of its county commissioners or city 
council or of its inhabitants at a town meeting, accepts this section, shall 
be entitled, during the time of his service in the organized militia, under 
sections eleven, seventeen, eighteen, nineteen, one hundred and five or one 
hundred and fifty-four, or during his annual tour of duty of not exceeding 
fifteen 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 
therefor, without loss of his ordinary remuneration as an employee or 
official of the commonwealth, or of such county, city or town, and shall 
also be entitled to the same leaves of absence or vacation with pay given 
to other like employees or officials. 



P.D. 12. 125 

Section 56. Whoever wilfully deprives a member of the organized 
militia of his employment, or denies him employment, or prevents his 
being employed by another, or obstructs or annoys him or his employer 
in respect of his trade, business or employment, because of such member's 
connection with the organized militia or because of his necessary absence 
from business in performance of his duty as such, and whoever dissuades 
any person from enlisting in the organized militia by threat of injury to 
him in respect of his emploj^ment, trade or business, or of other injury if 
he shall so enlist, shall be punished by a fine of not more than five hundred 
dollars, or by imprisonment for not more than six months, or both." 

You have advised me that training of the National Guard will be ordered 
by the Commander-in-Chief under sections 11 and 105 of said statute. 

Said section 54 specifically provides that any person in the service of the 
Commonwealth shall be entitled, during the time of his service in the 
organized militia under said sections 11 and 105, to receive pay therefor, 
without loss of his ordinary remuneration as an employee or official of the 
Commonwealth, and shall be entitled to the same vacation with pay as 
other like employees or officials. This being so, it follows that said section 
54 of the said chapter is applicable to the duty you describe. The training 
each year under service conditions mentioned in section 105 is not limited 
to fifteen days in any year. The performance of duty under said section 11 
is not limited to any particular period of time. The Massachusetts Na- 
tional Guard is a part of the organized militia referred to in sections 54 
and 56 of said chapter 33. 

A person who is a member of the organized militia, upon orders of the 
Commander-in-Chief requiring him to submit to a tour of training under 
said section 105 or to periform duty under said section 11, may be described 
while so acting as necessarily absent from business in performance of his 
duty, and so within the sweep of the provisions of said section 56. 

To put it briefly, if a member of the organized mihtia is required to per- 
form duty under said section 11 or to undergo training, in addition to other 
training of fifteen days already performed, he will be equally within the 
protection of said sections 54 and 56, if in the civilian service of the Com- 
monwealth, as he was while undergoing the first training. Such a person 
will be entitled to his usual salary from the Commonwealth while under- 
going the seven days' field training referred to in your letter as about to 
be required. The same privilege applies equally to officers and employees 
of such counties, cities or towns as accept the provisions of section 54 in the 
manner described therein. The provisions of section 56 apply to such 
ofiicers and employees in the empW of counties, cities or towns as well as 
of the Commonwealth, irrespective of the acceptance by such political 
subdivisions of said section 54. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Parole Board — Representatives of Prisoners. 

Nov. 16, 1939. 
Hon. Ralph W. Robart, Chairman, Parole Board. 

Dear Sir: — The Attorney General, following a long line of precedents, 
does not ordinarily give interpretations of statutes as such nor give written 
opinions except upon the request of the head of a State "department." 



126 P.D. 12. 

With relation to your recent request I regard the conditions as unusual, 
and, realizing the probable immediate necessity for you to act in relation 
to parole matters affected by St. 1939, c. 484, I deem it a proper occasion 
to make an exception to the ordinary procedure of this office in regard to 
opinions. 

Your letter reads : — 

"I respectfully request your opinion as to what obligations, if any, are 
incumbent upon the Parole Board, in entertaining petitions for parole, 
with relation to the provisions of St. 1939, c. 484. 

More specifically, I wish to know if it is obligatory for the Parole Board 
to determine whether or not the requirements of this statute have been 
complied with before entertaining petitions for the release of inmates of 
any penal institution under its jurisdiction, by either attorneys or relatives 
and friends of inmates; if the enactment of this law prevents the Board 
from discussing such cases with interested parties until it is satisfied that 
the provisions of the law have been fulfilled ; and if it is the concern of the 
Board to see that this law is adhered to by pointing out or instructing 
petitioners as to their duties in that respect. 

I wish to proceed in strict compliance with the requirements of this 
statute, being mindful, however, that if permissible there is a certain 
modicum of helpfulness which we, as public officials, might extend beyond 
the precise letter of the law, as a matter of courtesy to those visiting this 
office. 

I shall appreciate your outlining to the Board its duties in this con- 
nection." 

G. L. (Ter. Ed.) c. 127, § 167, as added by St. 1939,c. 484, forbids any 
person to represent or purport to represent any prisoner, confined or 
sentenced for the commission of a felony, in the procuring of or attempting 
to procure a parole, unless such person shall have complied with certain 
requirements of the section, which requirements call for the filing by him 
of a designated written statement with the Secretary of the Commonwealth. 

It is plain that you should not permit any person claiming to represent 
any such prisoner to attempt to procure from your Board, by petition or 
other means, a parole for such prisoner unless the required statement has 
been filed with the Secretary of the Commonwealth. 

Further, I do not think your Board is requu'ed to take specific action 
by reason of the existence of said chapter 484, which is a penal statute. 

Your Board may properly instruct persons desiring to represent prisoners 
for the procurement of paroles as to the necessity of their complying with 
the requirements of said chapter 484 before endeavoring to appear before 
your Board as representatives of prisoners. 

In any instance where you are satisfied that a person interested in obtain- 
ing a parole for a prisoner does not in fact represent such prisoner, there 
would appear to be no objection, by reason of said chapter 484, in your 
discussing the prisoner's case with such a person who does not in fact 
represent or purport to represent him. In each such instance it will be a 
question of fact, for you to decide, as to the status of the person who is 
addressing you, with relation to his standing as one who represents the 
prisoner in an attempt to procure a parole. 

The same considerations also apply to those representing such prisoners 
■desiring pardons, commutations or respites of prisoners. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 127 

Massachusetts Aeronautics Commission — Authority to make Rules. 

Nov. 17, 1939. 
Mr. Crocker Snow, Director, Massachusetts AeroJiautics Commission. 

Dear Sir: — I am in receipt from you of the following letter, which 
I assume was authorized by the Massachusetts Aeronautics Commission: — 

"In your opinion, does G. L. (Ter. Ed.) c. 90, § 39, as further amended 
by St. 1939, c. 393, § 3, authorize this Commission to provide by regulation 
that hazards to flight, such as water towers, smoke stacks, etc., in the near 
vicinitv of airports or on airways, shall be suitably marked, and lighted 
at night?" 

In my opinion, said section 39 does not authorize the said Commission 
to provide by regulation that hazards to flight, such as you mention, shall 
be marked and lighted at night unless such hazards exist at airports, 
landing fields, landing strips or on existing air markings, air beacons and 
air navigation facilities owned or managed by the Commonwealth. Your 
Commission has no authority to compel, by rule or regulation, private 
owners of land which has not become a part of the foregoing facilities 
within the ownership or management of the Commonwealth to provide or 
permit such markings as j^ou refer to. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Conservation — Civil Service — Promotion — 
Competitive Examination. 

Nov. 20, 1939. 
Hon. Ernest J. Dean, Commissioner of Conservation. 

Dear Sir : — You have asked my opinion relative to certain promotions 
made by you under the provisions of St. 1939, c. 506. You have advised 
me, in effect, that j^ou have attempted to promote three employees who 
fall within the terms of the following provision contained in section 15 of 
G. L. (Ter. Ed.) c. 31, as inserted therein by said St. 1939, c. 506, as 
follows : — 

"... Except in police and fire departments, an appointing official may, 
with the approval of the director, promote in the official service an em- 
ployee in one grade to the next higher grade, provided such employee has 
been employed at least three j'ears in the lower grade, is one of the three 
oldest employees therein in point of service, and passes an examination 
prescribed by the director." 

It is plain that with regard to the promotions mentioned in the above- 
quoted extract from the said section 15 an exception is made from the 
general rule laid down by the statutes, namely, that promotions generally 
shall be made only after a competitive promotional examination, and that 
such promotions as are made by virtue of the above-quoted provision of 
the section are to be made subject to passing a noncompetitive examination. 
It is, however, to be noted that by the language of the quoted portion of 
the statutes such promotions may be made by the appointing officials only 
'^with the approval of the director. ^^ 

You advise me, with regard to one of the promotions, that the director 
has approved thereof subject to a noncompetitive examination. So far as 
concerns this position your wishes have been complied with. 



128 P.D. 12. 

In regard to the two other promotions which you desire to make effective 
you have advised me that the director has approved them but that such 
approval is quahfied by him with the words, "subject to competitive 
examination," in each instance. 

An approval of a promotion which is made upon the express provision 
that it is "subject to competitive examination" is not an approval of a 
promotion under the terms of the quoted phrase of the section, and is 
equivalent to a disapproval of the same. So that the individuals who are 
to be promoted fall outside the class of those whose appointment, subject 
to a noncompetitive examination, is approved by the director, and fall 
within the general class, which requires that promotions shall be made 
only after a competitive promotional examination. 

It is true that the Legislature intended, as I have stated, to make an 
exception to the general rule relative to competitive promotional exam- 
inations in connection with the employees named in the quoted section, but 
it specifically provided that such an appointment could be made only with 
the approval of the director; and if the director specifically or by implica- 
tion withholds his approval, such promotion cannot be made without the 
usual competitive promotional examination. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Commission — Civil Service — Nonexemption of 

Certain Employees. 

Nov. 21, 1939. 

Hon. Eugene C. Hultman, Chairman, Metropolitan District Commission. 

Dear Sir : — Replying to your recent letter, I am of the opinion that 
St. 1939, c. 512, § 9, does not provide for the exemption from the Civil 
Service Law of such employees of your Commission as may be used by 
it in carrying out the work placed by section 9 upon it specifically, — not 
upon the Metropolitan District Sewer Construction Commission. The 
special provisions of said chapter 512 relative to exemption from the Civil 
Service Law do not by their terms, either expressly or by implication, 
apply to any employees except such as are appointed by the Metropolitan 
District Sewer Construction Commission itself. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Savings Bank Life Insurance — Forms of Insurance Policies — Approval 
of Certain Forms by the Insurance Commissioner. 

Nov. 21, 1939. 
JuDD Dewey, Esq., Deputy Commissioner, Savings Bank Life Insurance. 

Dear Sir: — You have asked my opinion as to whether or not it is 
proper for such standard forms of insurance pohcies as are prepared by 
the State Actuary, with the advice of the Attorney General, under the 
provisions of G. L. (Ter. Ed.) c. 178, § 15, to be approved by the Com- 
missioner of Insurance under the terms of G. L. (Ter. Ed.) c. 175, § 132, 
if such standard forms so prepared are submitted to him in their entirety 
with the exception of the names of the savings and insurance banks which 
intend, respectively, to use them being printed thereon. 

I am of the opinion that it is proper for him so to do. 



p. D. 12, 129 

The savings and insurance banks, under the provisions of G. L. (Ter. 
Ed.) c. 178, § 6, are to be governed by the general laws relating to domestic 
legal reserve life insurance companies "so far as the same are applicable," 
but these standard forms of policies so prepared by an officer of the Com- 
monwealth, the State Actuary, with the advice of the Attorney General, 
are required by said section 15 to be used as a uniform and exclusive form 
of policy by all savings and insurance banks. In this respect they would 
appear to differ from the policies of Hfe insurance companies submitted for 
the Commissioner's approval under G. L. (Ter. Ed.) c. 175, § 132, as to 
which it may well be that the name of the individual company desiring to 
issue a policy presented by it for approval is an integral part of the form 
of such policy, necessary for the consideration of the Commissioner in 
giving his approval. 

In view of the manner in which the uniform and exclusive forms of 
policies which must be used by all savings and insurance banks ahke are 
prepared by the State Actuary, section 132 would not appear necessarily 
to require the names of the particular savings and insurance banks which, 
respectively, are to issue the policies to be treated as a part of the form of 
the policy of which the Commissioner of Insurance is to approve. The 
requirement of section 18 of said chapter 175, which is binding on the 
savings and insurance banks, that none of them may issue a policy or con- 
tract of insurance unless it shall be headed and entitled by the name of the 
issuing corporation, binds such savings and insurance banks, as it does 
domestic life insurance companies, but the requirements of this section 
are not determinative of the precise nature of the "form" of policy upon 
which the Commissioner is to pass, under said section 132. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Examiners of Electricians — Authority to make Rules — Scope. 

Nov. 23, 1939. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You have addressed to me, on behalf of the State 
Examiners of Electricians, the following question of law: — 

"Have the State Examiners of Electricians the power to set forth and 
adopt rules and requirements for the business of installing wires, conduits, 
apparatus, fixtures or other appliances for carrying or using electricity for 
light, heat or power purposes?" 

I answer your question in the affirmative. 

The language of G. L. (Ter. Ed.) c. 141, §§ 2 and 4, as it appears since 
the compilation of the General Laws, seems at first sight as if limiting the 
rule making power of the said examiners solely to making rules relative 
to the manner and mode in which the duties placed upon them by said 
chapter 141, as amended, are to be carried out. The rule making power 
given by section 2 is specifically limited as follows: "make necessary rules 
for the performance of their duties." The implied grant of the rule making 
power under section 4 is contained in the second sentence thereof, and reads 
as follows : — 

"They [certificates issued under this statute] may, after hearing, be 
suspended or revoked by the examiners upon failure or refusal of the 



130 P.D. 12. 

licensee to comply with the rules and requirements of the examiners, or for 
other sufficient cause." 

This implied grant would not seem to extend to such matters as are 
mentioned in your question. 

However, said section 4 must be interpreted in the light of the terms 
in which its provisions occurred in the earlier statutes which were con- 
densed herein by the compilers of the General Laws. 

This section was embodied, in substance, in Gen. St. 1915, c. 296, § 4, 
and in Gen. St. 1916, c. 199, § 4, with relation to the rule making power 
of previous boards performing like functions with your own, whose powers 
have by applicable statutes become vested in your Board. In Boston & 
Albany R.R. Co. v. Boston, 275 Mass. 133, 138, the court said: — 

"It is a familiar principle of statutory construction that mere verbal 
variations in the re-enactment and revision of statutes do not work any 
modification of meaning, unless the phraseology is so different as to manifest 
an unmistakable design to that end." 

There is nothing in said chapter 141 to indicate that the changes in the 
wording of said section 4 from that of the earlier statutes were other than 
verbal, and they show no substituted meaning or indicate a less extensive 
grant of rule making power from that of the earlier and similar statutes. 
Commonwealth v. New York Central & Hudson River R.R. Co., 206 Mass. 
417, 419, 420. 

The applicable provisions of said Gen. St. 1915, c. 296, § 4, read: — 

"Said certificates may be suspended or revoked by the board of exam- 
iners upon failure or refusal of the licensee to comply with the rules and 
requirements of said business as set forth by the board of gas and electric 
light commissioners." 

Under the above grant of power the Board of Gas and Electric Light 
Commissioners adopted rules and requirements similar in their scope to 
those embodied in your question. There was apparently some doubt felt 
as to whether or not they had exceeded their power in making them, and 
in Gen. St. 1916, c. 199, § 1, the Legislature specifically ratified and con- 
firmed the action of the Commissioners in making such rules. In section 2 
of the same act the Legislature amended the older act of 1915 and vested 
by implication in the board of examiners, without relation to the Gas and 
Electric Light Commissioners, the power to make the same type of rules 
as were mentioned in the said act of 1915, and said rules were apparently 
interpreted as being within the scope of the rule making power by the 
action of the Legislature in confirming the rules previously made. 

Said section 2, in its applicable part, amending section 4 of the older act, 
read : — 

"Said certificates may, after a hearing, be suspended or revoked by 
the board of examiners upon failure or refusal of the licensee to com- 
ply with the rules and requirements of said business as set forth by said 
examiners, ..." 

The failure of the compilers of the General Laws to carry forward into 
the phraseology of G. L. (Ter. Ed.) c. 141, § 4, any reference to "business," 
and the limiting of the language to "rules and requirements of the exam- 
iners" are not, under the principles of statutory construction which I have 
already outlined, to be taken as lessening the scope of the rule making 
power of the examiners in this respect, which still is to be taken as em- 



P.D. 12. 131 

bracing rules and requirements of "the business" which electricians 
follow, as outlined in the terms of your question. Such rules and require- 
ments, therefore, the present Board has power to make. 

New legislation declaring more plainly the precise extent of the Board's 
power in this respect, and so making unnecessary the need of supplying 
by construction the eliminations of the compilers of the General Laws in 
this regard, might well be sought at the next session of the Legislature. 

In this same connection I answer a query addressed to me by the Board 
of Examiners at an earlier date, as to the correct description or citation 
to be put by them upon their rules before filing them as required by law. 
It follows from what I have already written that the correct description 
or citation would be: "Rules and requirements made pursuant to the 
provisions of G. L. (Ter. Ed.) c. 141, §§ 2 and 4." 

Very truly yours, 

Paul A. Dever, Attorney General. 

South Essex Sewerage Board — Etnployees — Retirement — Laborers. 

Nov. 27, 1939. 
South Essex Sewerage Board. 

Gentlemen : — You have asked my opinion, in effect, as to whether 
certain employees of the South Essex Sewerage District were entitled to 
the benefits of the retirement act recently set forth in St. 1939, c. 361, 
which amended G. L. (Ter. Ed.) c. 32, § 78. 

Section 78, as so amended, provides: — 

"Any laborer employed by any fire, water or sewerage district, . . . 
which accepts this section . . . who has reached the age of sixty . . . 
may ... be retired from service . . ." 

The section also provides for the retirement of other laborers so em- 
ployed who have been employed for other periods under various specified 
conditions. 

The South Essex Sewerage District was established by St. 1925, c. 339. 
Its management was entrusted to your Board, created by section 2 of 
said chapter 339, which, on behalf of the district set forth in the chapter, 
exercises all the powers which a sewerage district ordinarily exercises. 

The makeup of the sewerage district and its mode of functioning under 
your Board differ from those of other districts in many respects, but not so 
greatly as to render the inclusion of this district under the general term of 
a "sewerage district," employed in said section 78, as amended, inappli- 
cable to it. Although the Board is given authority, by section 3 of said 
chapter 339, to appoint or employ various workers, and to remove them, 
the same to be "paid by the district," it cannot be said of such workers, 
including laborers, that they are not "employed by" the "district," as 
those words are used in said chapter 361. 

I am therefore of the opinion that "laborers" employed under said 
section 3 are entitled to the retirement benefits provided for by said sec- 
tion 78, as amended. 

You have also submitted the following classification of your employees as 
to their work, and have asked my opinion as to which of them should be 
classified as "laborer," within the meaning of said section 78, as amended. 
There is a provision in the amended section 77 of said chapter 32 which 
provides what workers shall be deemed to be "laborers," but such defini- 



132 



P.D. 12. 



tion of the word "laborers" appears to be applicable only to the laborers 
employed by cities and towns, in connection with their retirement, and 
is not by specific language or by implication made applicable to the laborers 
employed by sewerage and other districts mentioned in said section 78, as 
amended, nor is any other definition set forth in the said chapter 32 appli- 
cable to the "laborers" mentioned in said section 78, as amended. Re- 
course must be had, therefore, to general principles of law in making a 
determination in this regard with relation to your workers, whom you 
classify as follows : — 



Number employed. 


Classification. 


6 

6 

1 


Clerk and treasurer of the Board. 

District engineer. 

Assistant engineer. 

Stenographer. 

Foreman. 

Mechanic. 

Pumping station operators. 

Laborers. 

Janitor. 



You have given a brief description of the nature of the work pursued 
under each classification in your list. 

The word "laborer," as such, used in a statute of the nature of the 
instant one, does not ordinarily include those who have duties of super- 
intendence, such as a foreman, nor those who perform work requiring a 
high degree of skill in particular hnes, such as engineers, pumping station 
operators and stenographers, nor mechanics, nor janitors (see, as to the 
latter. White's Case, 226 Mass. 517). The precise nature of the work of 
any individual employee depends upon the particular facts with relation 
to the kind and character of work which he actually performs. The Attor- 
ney General does not pass upon questions of fact. No general rule can be 
laid down which as a matter of law will precisely determine the status in 
this respect of each member of a group of employees having various duties. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P D. 12. 133 



INDEX TO OPINIONS 



Administration and Finance, Department of; advice and assistance on con- 
tracts 

Aid to dependent children; contributions by stepfather 

AlcohoUc beverages; Hcenses; vote of a town 

AlcohoUc Beverages Control Commission; refusal of the selectmen of a towTi 

to issue a license; appeal . 
Auditor of the Commonwealth; Division of Liquidations; authority for 

audits 

Ballot; questions of public policy; number 

Boston, Police Commissioner for the City of; grant of hackney licenses 

Capitol police ; Superintendent of Buildings 

Civil service; agent of the soldiers' relief department in Fall River . 

Call fireman ; period of employment 

City ordinance; inspector of buildings in Marlborough . 
Commissioner; Board; supervision of examinations .... 

Examinations; marking 

Employment of persons on a Federal relief project .... 
Janitor of the American Legion Building in Brookhne .... 
Nonexemption of certain employees; Metropolitan District Commission 

Powers of the new Civil Service Commission 

Promotion; competitive examination; Department of Conservation . 

Comptroller; expenses of State employees 

Conservation, Department of; appropriation for maintenance and propaga- 
tion ; survey of all fish hatcheries and game farms 

Authority of Commissioner to lease land 

Civil service ; promotion ; competitive examination 
Constitutional law; Atlantic Avenue elevated structure; removal 

Compatible positions 

Constitutionality of a proposed statute; compulsory workmen's compen- 
sation insurance 

"Fair Trade" Act 

Licensing of automobile dumps 

Preventing aliens from practicing medicine or dentistry . 
Residential qualifications of members of the Executive Council 

Vacant lots . . . . : 

Motor Fuel Sales Act; nonappUcation to sales to the United States Govern- 
ment 

Motor fuel sales at retail; contracts . 

Trading stamps 

Payments to distressed citizens . 
Contract for maintenance of a public building 
Conviction of an ofYence involving moral turpitude 
Correction, Commissioner of; prison industries . 

Eastern Massachusetts Street Railway Company; appointment of trustees 
Education, Commissioner of; use of premises of teachers colleges 
Electricians, State Examiners of; authority to make rules; scope 
Feeble-minded persons ; commitment to Belchertown State School 
Fisheries and Game, Director of; Supervisor of Marine Fisheries; respective 

powers 63 



134 P.D. 12. 

PAGE 

Governor; trustees of the Eastern Massachusetts Street Railway Company; 

power of appointment 25 

Governor and Council; Division of Personnel and Standardization; increases 

in salaries; salary ranges; classification 14 

Transfer from the extraordinary fund 9 

Great ponds; storage of logs 14 

Hairdressers, Board of Registration of; certificates of registration; fees . Ill 

Health, local board of; unauthorized regulation 85 

Insurance; broker's license; fee; yeoman (F) 102 

Industrial policy; exchange; date of new policy 102 

Mutual insurance company; foreign company Ill 

Labor; acceptance of statute by a municipality 95 

Women and children; allowance for meal time; consecutive periods of work 120 

Lake Cochituate; rules of the Metro pohtan District Commission ... 47 
Marine Fisheries, Supervisor of; Director of the Division of Fisheries and 

Game; respective powers 63 

State Inspector of Fish; abolishment of offices by St. 1939, c. 491 . . 98 

Massachusetts Aeronautics Commission; power to make rules . .110, 127 
Mental Health, Department of; acceptance of gift; use of real property of 

the Commonwealth 41 

Metro pohtan District Commission; civil service; nonexemption of certain 

employees 128 

Lake Cochituate ; rules for boating and fishing 47 

Retirement of an employee not a member of the State retirement system . 57 

Motor fuel; retail sale to power boats; retail dealers; Hcense .... 104 

Motor vehicle ; operation by a State employee 77 

Municipalities; authority to appoint a woman as a police officer ... 59 

Incompatibility of offices 84 

Labor law; acceptance 95 

Rehef ; reimbursement by the Commonwealth 20 

Newspaper; publication of official notices 78 

Old age assistance; actual need of immediate relief 118 

Ehgibihty of aged persons ; transferring vacant land 49 

Hospitalization of aged persons 49 

Outdoor advertising; municipalities; private property 48 

Signs of brokers on real estate 43 

Town zoning law 119 

Parole Board ; authority to reconsider application for parole of a prisoner . 77 

Pardons; terms and conditions 56 

Representatives of prisoners 125 

Permits for setting fires; officers of the National Guard 42 

Police officers ; receipt of reward 10 

Prisoner; removal from State Prison; mode of return thereto .... 100 
public employees ; service in the organized militia ; period of service without 

loss of pay 124 

Public inspection; information collected under G. L. (Ter. Ed.) c. 7, § 30 11 
Public Utilities, Department of; bonds of a gas company; authority to enter 

a supplemental order relative to maturity and interest rate . . 23 

Issue 40 

Common carrier; service and rates to Nantucket 37 

Public Welfare, Commissioner of; funerals of indigent persons; reimburse- 
ment 118 

Public welfare districts in two or more towns 62 

Public Works, Department of; authoritv to patrol streams, under St. 1938, 

c. 506 ' 10 

Procedure with relation to certain contracts 79 

Seawall; maintenance; habihty for injuries . . . . . . .96 

Workmen's compensation ; certain contracts with municipalities . . 43 



P.D. 12. 135 

PAOE 

Quorum ; ex officio members of a commission ; right to vote .... 46 
Registered nurse ; revocation of authority . . . . .87 

Retirement; employee of the MetropoUtan District Commission ... 57 

Veteran; compensation; sahiry; maintenance 44 

Retirement, State Board of; payments in emergency cases . . 109 
Savings bank hfe insurance; forms of insurance pohcies; approval of certain 

forms by the Insurance Commissioner 128 

School system ; high school 8 

Sentences; effect of a sentence to the State Prison upon an earlier sentence 

to the Massachusetts Reformatory 8 

South Essex Sewerage Board; employees; retirement; laborers . . .131 

State and military aid; eUgibiUty; honorable discharge from war service . 21 

State armory; nonmilitary use 12 

State employee; expenses 114 

Investigator in the Registry of Motor Vehicles; widow's annuity; deter- 
mination 113 

Operation of motor vehicle ; liability in case of accident 77 

Right to oppose pending legislation 55 

State Fire Marshal; license; time for taking an appeal 116 

State printing; contracts 87 

State Racing Commission; revocation of a license; grant of a license ; hear- 
ing; unfinished business; dog racing meetings at two tracks in the 

same county 29 

Steam plants; person operating; person in charge; special license . . . 119 

Teachers' retirement system; salary; budget cut 55 

Treasurer and Receiver General ; premium on account of sale of bonds under 

St. 1938, c. 501 28 

Receipt of gift on behalf of the Commonwealth 21 

Underground easement; interference by landowner 115 

Workmen's compensation; constitutionaUty of a proposed statute; compul- 
sory insurance 66 

Department of Public Works; certain contracts with municipalities . . 43 



136 P.D. 12. 



RULES OF PRACTICE 

In Interstate Rendition. 

Every application to the Governor for a requisition upon the executive authority 
of any other State or Territory, for the dehvery up and return of any offender 
who has fled from the justice of this Commonwealth, must be made by the district 
or prosecuting attorney for the county or district in which the offence was com- 
mitted, and must be in duphcate original papers, or certified copies thereof. 

The following must appear by the certificate of the district or prosecuting 
attorney: — 

(a) The full name of the person for whom extradition is asked, together with 
the name of the agent proposed, to be properly spelled. 

(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 application for a requisition for the same person 
growing out of the same transaction, it must be so stated, with an explanation of 
the reasons for a second request, together with the date of such application, as 
near as may be. 

(/) If the fugitive is known to be under either civil or criminal arrest in the 
State or Territory to which he is alleged to have fled, the fact of such arrest and 
the nature of the proceedings on which it is based must be stated. 

(g) That the application is not made for the purpose of enforcing the collection 
of a debt, or for any private purpose whatever; and that, if the requisition applied 
for be granted, the criminal proceedings shall not be used for any of said objects. 

(h) The nature of the crime charged, with a reference, when practicable, to 
the particular statute defining and punishing the same. 

({) If the offence charged is not of recent occurrence, a satisfactory reason 
must be given for the delay in making the application. 

1. In all cases of fraud, false pretences, embezzlement or forgery, when made 
a crime by the common law, or any penal code or statute, the affidavit of the 
principal complaining witness or informant that the application is made in good 
faith, for the sole purpose of punishing the accused, and that he does not desire 
or expect to use the prosecution for the purpose of collecting a debt, or for any 
private purpose, and will not directly or indirectly use the same for any of said 
purposes, shall be required, or a sufficient reason given for the absence of such 
affidavit. 

2. Proof by affidavit of facts and circumstances satisfying the Executive that 
the alleged criminal has fled from the justice of the State, and is in the State on 
whose Executive the demand is requested to be made, must be given. The fact 
that the alleged criminal was in the State where the alleged crime was committed 
at the time of the commission thereof, and is found in the State upon which the 
requisition was made, shall be sufficient evidence, in the absence of other proof, 
that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in duphcate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and circum- 
stances showing the commission of the crime charged, and that the accused perpe- 
trated the same, must be shown by affidavits taken before a magistrate, (A notary 
public is not a magistrate within the meaning of the statutes.) It must also be 
shown that a complaint has been made, copies of which must accompany the 



P.D. 12. 137 

requisition, such complaint to be accompanied by affidavits to the facts consti- 
tuting the offence charged by persons having actual knowledge thereof, and that 
a warrant has been issued, and duplicate certified copies of the same, together 
with the returns thereto, if any, must be furnished upon an application. The 
affidavit or affidavits should contain sufficient facts to make out a prima facie case 
of guilt, and should not be a reiteration of the form of the complaint nor contain 
conclusions of law. 

5. The official character of the officer taking the affidavits or depositions, and 
of the officer who issued the warrant, must be duly certified. 

6. Upon the renewal of an apphcation, — for example, on the ground that 
the fugitive has fled to another State, not having been found in the State on which 
the first was granted, — new or certified copies of papers, in conformity with the 
above rules, must be furnished. 

7. In the case of any person who has been convicted of any crime, and escapes 
after conviction, or while serving his sentence, the application may be made by 
the jailer, sheriff, or other officer having him in custody, and shall be accom- 
panied by certified copies of the indictment or information, record of conviction 
and sentence upon which the person is held, with the affidavit of such person 
having him in custody, showing such escape, with the circumstances attending 
the same. 

8. No requisition will be made for the extradition of any fugitive except in 
compHance with these rules. 



JUL 2 4*41 W.P^