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

Public Document No. 12 



Cf)e CommonUjealtf) of ^a00aci)U0ett0 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1940 




Ct)e Commontoealt^ o( q^a0!B;ac|)U0ett0 



Department of the Attorney General, 
Boston, January 15, 1941. 

To the Honorable Senate and House of Representatives. 

I have the honor to transmit herewith the report of the Department for the 
year ending November 30, 1940. 

Verj^ respectfully, 

PAUL A. DEVER, 

Attorney General. \ 



Cf)e Commontoealtl) of aia00ac|)U0ett$ 



DEPARTMENT OF THE ATTORNEY GENERAL. 
State House. 



Attorney General. 
PAUL A. DEVER. 



Secretary to the Attorney General, 
John E. Hurley. 



Assistants. 

Edward 0. Proctor. 
J. Burke Sullivan. 
Roger Clapp. 
John S. Derham. 
Arthur V. Sullivan. 
Maurice M. Goldman. 
Edward McPartlin. 
Daniel J. Doherty. 
Walter W, O'Donnell. 
James J. Bacigalupo. ' 
William J. Landergan. 
Edward A. Pecce. 
Louis A. Novins. 
Mary Sienkiewicz Dumas, 
ovide v. fortier. 1 

Director of Division of Collections. 
Edward I. Rasnick. 

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

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



» Appointed Feb. 15, 1940. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES. 
For the Fiscal Year. 

General appropriation for 1940 $140,765 38 

Balance brought forward from 1939 appropriation .... 5,408 40 

Appropriation for small claims 5,000 00 

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

$159,173 78 

Expenditures. i 

For salary of Attorney General $8,000 00 

For salaries of assistants and others 125,549 85 

Incidentals 10,507 30 

For small claims 2,574 88 

For claims under G. L. (Ter. Ed.) c. 12, § 3B 6,898 95 

Total expenditures $153,530 98 

Balance $5,642 80 

Financial statement verified. 
Approved. 

GEO. E. MURPHY, 
Comptroller 



Ci)e Commontoealtb of ^as!fl;aci)U0ett0 



Department of the Attorney General, 
Boston, January 15, 1941. 



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 year ending 
November 30, 1940, to the number of 8,443 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 
PubUc charitable trusts ..... 

Settlement cases for support of persons in State hospitals 

All other cases not enumerated above, which include suits to require the filing of 

returns by corporations and individuals and the collection of money due 

the Commonwealth .......... 

Indictments for murder, capital cases . . . 

Disposed of . . . . ... . . - .16 

Pending ........... 7 



2,520 

95 

109 

206 

2 

1 

2 

30 

113 

839 

34 

599 

14 



3,856 
23 



6 P.D. 12. 

Lake Quinsigamond. 

Pursuant to chapter 40 of the Resolves of 1939 I submit herewith a report on 
Lake Quinsigamond. 

In compliance with this resolve an investigation was conducted by this office 
during the summer of 1939 which revealed that the Linen Thread Co., Inc., now 
owns the dams, gates and approaches at the lower end of Lake Quinsigamond in 
the toviois of Grafton and Shrewsbury. Some time prior to 1939 it disposed of 
its real estate, including the mill properties, and filled in the canal. Without legis- 
lative authority, no department in the Commonwealth may enter upon the prem- 
ises for the purpose of controUing the dams and headgates. 

In view of the fact that the investigation definitely revealed an intent on the 
part of the Linen Thread Co., Inc., to abandon the use of the water rights, as 
indicated by filhng in the canal and lack of use over a period of years, it is the 
opinion of this office that said company had abandoned under the law whatever 
water rights it did at one time own, and that if this property is taken by eminent 
domain there can be no damages obtained by the company for any of the water 
rights which it has abandoned. 

It is also the opinion of this office that the only action which can be taken is 
for the State, county or municipal governments to take by eminent domain what- 
ever property is necessary in which there is title in the Linen Thread Co., Inc. 
It is further the opinion of this office that the most expeditious way to handle 
this situation is for the Commonwealth of Massachusetts, acting by the Depart- 
ment of Pubhc Works, Division of Waterways, to take this property by eminent 
domain, in conjunction wdth the flood control project, which would eliminate the 
difficulties which the riparian owners are now meeting. 

State Armory Contracts (Hurricane). 

To effect the repair of various State armories damaged by the hurricane in Sep- 
tember, 1938, contracts were entered into in October, 1938, by William H. Har- 
rison, Jr., Quartermaster, who purported to act for the Commonwealth. 

In January, 1939, the Attorney General conducted an investigation with respect 
to the subject matter of these contracts and the circumstances relating thereto. 

Subsequently, a mifitary board or commission, consisting of three National 
Guard officers, Eckfeldt, Smith and Cormerais, was appointed by the Adjutant 
General for the purpose of making an inquiry into the contracts and engaging in 
a survey of the work done and materials furnished, to determine the fair value 
thereof. 

Lieutenant A. W. K. Bilhngs, Jr., made the survey and submitted a report, 
a copy of which was furnished to the Attorney General by the Adjutant General. 
This report sets forth in each case "the contract amount, the amount payable 
due to hurricane, the amount payable not due to hurricane, and the amount still 
necessary." 

As a result of a conference between His Excellency the Governor and myself on 
February 7, 1940, an agreement, confirmed by me in writing on February 8, 1940, 
and similarly by the Governor on February 14, 1940, was made with respect to 
the disposition of claims arising out of these contracts. Settlement of such claims 



P.D. 12. 7 

was thus authorized to be made "upon the basis of the fair price for repair and 
materials furnished for strictly hurricane or flood repair, as disclosed by the re- 
port of the commission of the Military Department — which would be upon the 
same basis as the allowances made by Judge Leary in his recent decisions in suits 
brought upon the Department of Education contracts." It was "regarded by both 
of us as desirable that such settlements be made." 

Under this procedure compromises were effected in the following suits brought 
in the Suffolk Superior Court: P. J. Cantwell & Sons (Lynn Armory only), $882; 
Courtney Hardware Company, $1,967.60; John S. Leonard, $2,888. The claim 
of Anchor Post Fence Co. (Worcester Armory), $218, was paid administratively 
upon approval of the Adjutant General, no compromise being involved. The suit 
brought by Albert J. Carson, involving contracts for repairing the Greenfield and 
Pittsfield armories, resulted in a finding for the Commonwealth. The petitioner 
abandoned his appeal to the Supreme Judicial Court. 

Cases now pending in the Superior Court are those of Jacob Hurwitz, John F. 
Shea Co., Inc., J. G. Roy & Sons Co., Michael Racioppi and Arthur M. Tobin. 
An oral agreement to compromise the claim of John F. Shea Co., Inc., in the 
amount of $10,402.50, in accordance with the revised report of Lieutenant Billings, 
acting for the military commission, was reached, but was not consummated be- 
cause of the decision of the Supreme Judicial Court in the case of Sheils v. Common- 
icealth, 306 Mass. 535. This compromise was conditioned upon the passing to the 
Commonwealth of title to all material necessary to complete the contract, this 
material now being in the possession of E. Van Noorden Co. 

The Sheils case was decided by the Supreme Judicial Court on September 10, 
1940, in favor of the Commonwealth, thereby affirming the finding of the Superior 
Court. This decision in effect invalidated all contracts involving repairs to ar- 
mories arising out of damage caused by the hurricane, for the reason that such 
contracts were not executed by the Adjutant General and the appropriation did 
not provide for payment of the contracts as executed. 

William W. Drummey has a suit pending against the Commonwealth for serv- 
ices rendered under the terms of the WTitten authorization signed by the then 
Adjutant General and approved by the then Governor, relating to surveying the 
damage done to armories, preparing necessary specifications and drawings, and 
supervising the repair work contemplated to be done under the provisions of the 
contracts referred to. 

Entirely apart from any legal complications that may be involved in the Drum- 
mey claim, the situation presents difficulties in determining the amount of Drum- 
mey 's entitlement, inasmuch as some of the contracts were not completed and, 
in many cases, part of the work done is alleged to be of non-hurricane origin. 
Under the terms of the authorization referred to, Drummey was to be compen- 
sated "at the rate of 6 per cent of the actual cost of the damage repaired." 

In addition to those already mentioned herein, there are eight contractors who 
have not instituted legal proceedings, undoubtedly due to the decision in Sheils v. 
Commonu-eaUh. The Commonwealth is the l^eneficiary of the work done and 
materials furnished by these contractors whose claims have not been disposed of 
by payment. Legally they are without remedy to enforce payment. 

I therefore recommend prompt remedial legislation in order that justice may be 
done and payment made to these contractors upon the basis of the fair value of 



8 P.D. 12. 

work performed and materials furnished, in harmony with the purpose and pro- 
visions of the original legislation. For the reasons herein stated, such legislation 
should also apply to the Drummey case. 



Small Loans Agencies. 

As a result of continued and numerous complaints made to this department, 
an extensive investigation was undertaken into the activities of those engaged 
in the business of making small loans, including both licensed and unlicensed 
lenders. I again direct the attention of the Legislature to the great injustices 
which are taking place because of the limited appHcability of our present Small 
Loans Act, G. L. (Ter. Ed.) c. 140, §§ 96-114, inclusive. Because of the hardships 
now being worked under the present law, I recommend that legislation be enacted 
as follows: 

1. To raise the amount from $300 to S500, as defined in G. L. (Ter. Ed.) c. 140, 
§§96 and 110, as the business of making small loans. (See Report of the Attorney 
General [P. D. No. 12] for the years 1935, 1936, 1937 and 1938.) 

2. To provide that the buying of conditional sales agreements or lease agree- 
ments shall also be included within the definition of engaging in the business of 
making small loans as defined in said chapter 140, section 96. 

3. To provide for legal services for victims of unlawful practices by loan agencies, 
and that payment for such services be made by the loan agencies in accordance 
with the method similar to that contained in the provisions of G. L. (Ter. Ed.) 
c. 140, § 97. (See Report of the Attorney General [P. D. No. 12] for the years 
1935 and 1936.) 

4. To prevent small loans agencies from engaging in any activities other than 
the so-called small loans business, and from making loans other than in accordance 
with G. L. (Ter. Ed.) c. 140, §§ 96-111, inclusive. (See Report of the Attorney 
General [P. D. No. 12] for the years 1935 and 1936.) 

5. To amend section 98 in order that its provisions shall require that there shall 
be contained in the returns to be made to the Commissioner of Banks under that 
section a report of the salaries of all persons who earn $2,000 or more per annum, 
and that the aforesaid returns be made available to the public. It should be pro- 
vided, further, that in the event that holding companies control the stock of small 
loans businesses, the holding companies be required to make a return containing 
the name of each person who earns $2,000 or more per annum. 

6. To provide that there shall be no advertising by small loans businesses un- 
less such advertising has first received the approval of the Commissioner of Banks. 

7. To provide that for violation of chapter 140, sections 96 to 114, inclusive, 
more severe penalties be established. 

8. To provide that illegal loans by Hcensed small loans companies are void, and 
that, as to either licensed or unHcensed companies, the security or lien involved 
in such loans is to be ordered discharged. 

9. To further amend section 96 so that interest and expenses shall include all 
sums paid or to be paid by the borrower for insurance. 

10. To assist the distressed borrower by allowing the Commissioner of Banks 
to make such order, in his discretion, concerning the payment of interest on out- 
standing loans as the circumstances of the case require. 



P.D. 12. 9 

11. To provide that no lender shall, at any time, charge interest upon interest 
charged upon a previous loan. 

12. To provide that it shall be illegal for licensees to solicit business firms for 
the purpose of obtaining the names of debtors in order that they may be utiHzed 
as prospective borrowers. 

13. To provide that an interest rate be estabUshed in this Commonwealth to 
apply in all cases except in the case of a Ucensed small loans company. This pro- 
vision is recommended in order that national banks may not possess an unfair 
advantage in competition with state lending agencies. 

Installment Sales. 

In view of the questionable practices and extortionate charges involved in in- 
stallment sales, I recommend that legislation be enacted to impose a Umitation 
on the maximum amount that may be charged in the form of carrying or finance 
charges. 

Advertising Accounts for Sale. 

I again repeat my recommendation that legislation be enacted to prevent the 
advertising of "Accounts for Sale," wherein the names and addresses of debtors 
and the nature and amounts of the indebtedness are listed. (See Report of the 
Attorney General [P. D. No. 12] for the years 1935, 1936, 1937 and 1938.) 

Amendment of Laws relative to Banks and Credit Unions. 

I repeat my recommendation of 1935, 1936 and 1937 that legislation be en- 
acted to provide that no executive or administrative officer or member of the board 
of investment of such banks shall act as counsel therefor. (See Report of the At- 
torney General [P. D. No. 12] for the years 1935, 1936 and 1937.) 

The laws relating to mutual savings banks, co-operative banks and credit unions 
should be amended so as to provide that a report of all salaries of officers, execu- 
tives or employees of $2,000 per annum, or more, be made a part of the annual 
return to the Commissioner of Banks, and that the return be made available to 
the public. 

The laws relating to savings banks should be amended to provide that Federal 
deposit insurance should be made available to Massachusetts mutual savings 
banks. 

Official Opinions. 

The department has rendered 145 official opinions. 

An Appreciation. 

In conclusion, I wish to pay tribute to the zeal, ability, acumen and industry 
of my co-workers in the administration of the chief law office of the Commonwealth. 
The several Assistant Attorneys General, the office personnel, and the several de- 
partments of the State government have all co-operated in a sincere effort to serve 
the Commonwealth. 

Respectfully submitted, 

PAUL A. DEVER, 

Attorney Generals 



10 P.D. 12. 

Details of Capital Cases. 

1. Disposition of indictments pending Nov. 30, 1939: 

Northern District (Middlesex County cases: 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; Jan. 31, 1940, re- 
tracted former plea and pleaded guilty to murder in the second degree, wliich plea 
was accepted; thereupon sentenced to State Prison for life. 

Suffolk District (Suffolk County cases: in charge of District Attorney WiUiam 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; Dec. 30, 1939, defendant died. 

2, Indictments found and dispositions since Nov. 30, 1939: 

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

Hoban) . 
Matteo Esposito. 

Indicted August, 1940, for the murder of John Esposito, at Shrewsbury, on May 11, 
1940; arraigned Sept. 6, 1940, and pleaded guilty to murder in the second degree, 
which plea was accepted; thereupon sentenced to State Prison for Hfe. 

Joseph F. Napoli. 

Indicted August, 1940, for the murder of John Napoh, at Worcester, on Aug. 1, 1940; 
arraigned Sept. 6, 1940, and pleaded not guilty; trial November, 1940; during the 
trial retracted former plea and pleaded guilty to manslaughter, which plea was 
accepted; thereupon sentenced to State Prison for not more than twelve years and 
not less than eight years. 

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

F. Bradford). 
Frank W. Gomez. 

Indicted June, 1940, for the murder of Catherine C. Nauer, at Watertown, on May 31, 
1940; Aug. 21, 1940, adjudged insane and committed to Bridgewater State Hospital. 

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

Arthur S. Cray and Irwin R. Nelson. 

Indicted in Norfolk County, December, 1939, for the murder of Carle E. Carlson, at 
Quincy, on Sept. 19, 1939; arraigned Dec. 13, 1939, and each pleaded not guilty; 
Feb. 27, 1940, retracted former pleas and each pleaded guilty to murder in the sec- 
ond degree, which pleas were accepted; thereupon each sentenced to State Prison 
for Ufe. 

Amos Fernandes. 

Indicted in Plymouth County, June, 1940, for the murder of Frances Britto, at Ware- 
ham, on May 13, 1940; arraigned June 3, 1940; July 19, 1940, adjudged insane and 
committed to Bridgewater State Hospital. 



P.D. 12. 11 

Harrison C. Howes, Jr., and Helen E. Hayes. 

Indicted in Norfolk County, December, 1939, for the murder of Simon Danilovich, 
at Stoughton, on Oct. 1, 1939; arraigned Dec. 18, 1939, and each pleaded not 
guilty; April 22, 1940, entry of nolle prosequi as to Helen E. Hayes; April 22, 1940, 
Howes retracted his former plea and pleaded guilty to murder in the second de- 
gree, wliich plea was accepted; thereupon sentenced to State Prison for life. 

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

Indicted in Bristol County, November, 1940, for the murder of John Stupalski; ar- 
raigned Nov. 18, 1940, and pleaded not guilty; Nov. 22, 1940, adjudged insane and 
committed to Bridgewater State Hospital. 

R. Huntingdon Rice, alias. 

Indicted in the County of Dukes County, July, 1940, for the murder of Clara M. 
Smith, at Oak Bluffs, on June 30, 1940; arraigned Aug. 6, 1940, and pleaded not 
guilty; trial September, 1940; verdict of not guilty. 

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

Foley). 
Charles E. Spencer. 

Indicted March, 1940, for the miurder of Bernard B. Glickman, on Feb. 21, 1940; 
arraigned March 15, 1940, and pleaded not guilty; trial June, 1940; during the 
trial retracted former plea and pleaded guilty to manslaughter, which plea was 
accepted; thereupon sentenced to State Prison for not more than twenty years and 
not less than fourteen years. 

Michael Virga. 

Indicted January, 1940, for the murder of Vasco Pina on Jan. 2, 1940; arraigned 
Jan. 12, 1940, and pleaded not guilty; trial April, 1940; 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). 
Natale Curcio, alias. 

Indicted in Hampden County, December, 1939, for the murder of Frank Diringer, at 
Springfield, on Nov. 4, 1939; arraigned Dec. 27, 1939, and pleaded not guilty; 
trial October, 1940; verdict of guilty of murder in the second degree; thereupon 
sentenced to State Prison for life. 

Walter R. Hibberd. 

Indicted in Hampden County, December, 1939, for the murder of Caroline H. Hib- 
berd, at Springfield, on Nov. 3, 1939; arraigned Dec. 27, 1939, and pleaded not 
guilty; June 13, 1940, retracted former plea and pleaded guilty to murder in the 
second degree, which plea was accepted; thereupon sentenced to State Prison for 
life. 

3. Pending indictments and status: 

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

Cregg). 
James Pallas. 

Indicted September, 1940, for the murder of Agnes Pallas, at North Andover, on July 
30, 1940; arraigned Sept. 17, 1940, and pleaded not guilty. 



12 P.D. 12. 

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

Hoban). 
Harvey A. Berry. 

Indicted August, 1940, for the murder of Gideon Belleveau, at Leominster, on Aug. 
3, 1940; arraigned Sept. 6, 1940, and pleaded not guilty; committed to Worcester 
.State Hospital for observation. 

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

Joseph Brooks, alias. 

Indicted in Norfolk County, April, 1940, for the murder of Edward F. Lee, at Milton, 
on May 16, 1940; arraigned May 28, 1940, and pleaded not guilty; trial September, 
1940; verdict of guilty of murder in the first degree; thereupon sentenced to death 
by electrocution; Sept. 26, 1940, claim of appeal filed; Nov. 25, 1940, motion for 
new trial denied; Dec. 11, 1940, assignment of errors filed; execution of sentence 
stayed pending disposition of claim of appeal. 

Carleton O. Burr. , 

Indicted in Plymouth County, October, 1940, for the murder of Roy O. Burr, at 
Brockton, on July 13, 1940; arraigned Oct. 10, 1940, and pleaded not guilty. 

Southern District (in charge of District Attorney William C. Crosslej'). 

Frank Pedro. 

Indicted in Bristol County, November, 1940, for the murder of Irene Perry; arraigned 
Nov. 18, 1940, and pleaded not guilty. 

Lewis H. Rogers. 

Indicted in Barnstable County, October, 1940, for the murder of Edward Johnson, 
at Chatham, on Aug. 3, 1940; arraigned Oct. 29, 1940, and committed to Bridge- 
water State Hospital. 

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

Angelo Rossetti. 

Indicted in Hampden County, September, 1940, for the murder of Joseph Fasoli, at 
Southwick, on Aug. 27, 1940; arraigned Sept. 19, 1940, and pleaded not guilty. 



P.D. 12. 13 

OPINIONS. 



Contract — Breach — Federal Regulations. 

Dec. 5, 1939. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sir: — I am in receipt of your recent letter concerning a con- 
tract between the Commonwealth and the Bay State Dredging and Con- 
struction Company (Public Works Contract No. 485). 

You advise me, and it appears, that in this contract the contractor 
agreed to follow all rules and regulations of the Public Works Adminis- 
tration, and such rules and regulations and such agreements are made 
a part of the contract document. 

You also advise me that the Federal government has ruled that there 
was noncompliance on the part of the contractor with certain of the said 
regulations, and that as a result thereof the Federal government has de- 
ducted from the grant to the Commonwealth $2,838.41, and that the net 
loss to the department by the withholding of this grant by the Federal 
government on account of the noncompliance of the contractor with the 
said regulations amounts to $1,277.28. 

Inasmuch as compliance with the said regulations was a part of the 
agreement of the contractor, his failure to comply with them (assuming 
there was such failure) acts as a breach of his contract. 

It is not the function of the Attorney General to pass upon the question 
of fact. 

Assuming that the Federal government is correct in its ruling that there 
has been such noncompliance, the breach of the contract caused thereby 
has resulted in damage to the Commonwealth in the amount of the net 
loss of which you speak, due to its inability, on account of the contractor's 
actions, to receive from the Federal government the full amount which it 
otherwise would have received, this damage amounting to the said "net 
loss" of $1,277.28. 

Accordingly, if your department agrees with the ruling of the Federal 
government that there was a noncompliance on the part of the contractor 
with the said regulations, your department should withhold from any 
payment now to be made to the contractor the said sum of $1,277.28. 

If, on the other hand, despite the Federal government's ruling, it is 
your judgment that the contractor was not guilty of noncompliance with 
the rules and regulations, it would be your duty, notwithstanding the 
Federal government's ruling, to pay the contractor the entire balance due 
him under the contract. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Towns — Annexation — Councillor and Senatorial Districts. 

Dec. 7, 1939. 

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

Dear Sir: — Under the provisions of St. 1927, c. 321, §§ 13-15, the 
towns of Greenwich, Prescott and Enfield ceased to exist as such and 
became annexed to other towns, thirty days after April 1, 1938, all neces- 



14 P.D. 12. 

sary acts required toward that end having been performed. By amend- 
ment of said chapter 321 through St. 1938, c. 240, the town of Dana hke- 
wise ceased to exist and was annexed to another town in April, 1938, all 
necessary acts required toward that end having been performed. 

Although councillor and senatorial districts established by St. 1939, 
c. 507, are in some instances described as consisting in part of one or more 
of these towns, and likewise as to representative districts by St. 1939, 
c. 467, yet, since as a matter of law these towns did not exist as such in 
1939, their inclusion in the various districts named in said chapters 507 
and 467, respectively, does not of itself cause them to exist again, and they 
are not to be treated as actual towns for the purpose of determining the 
necessary number of voters required for the effective signing of nomina- 
tion papers under G. L. (Ter. Ed.) c. 53, § 44. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Commission — Power to modify Vote. 

Dec. 7, 1939. 
Metropolitan District Commission. 

Gentlemen : — You ask my opinion as to whether or not your Com- 
mission has authority to grant a further extension of the time in which 
your Commission will authorize payment for the use of privately owned 
automobiles in your service. 

You advise me that on March 30, 1939, you voted not to allow payments 
for the use of private automobiles after May 1, 1939, and that on May 
25th you extended the time in which allowance would be made to June 1st. 
You state that you now desire to again extend such time by a present 
vote, to act retroactively, for the period from June 1, 1939, to August 31, 
1939. 

This matter appears to be of purely departmental concern, one which 
relates only to the administrative policy of the department as between it 
and its own employees. I know of no principle of law which prohibits 
your Commission from modifying its vote of March 30th, as it has already 
done once, by further extending the time as to which it will approve reim- 
bursement for the expenses of those whom I assume to be its own em- 
ployees and officials in operating privately owned automobiles in its 
service. 

Whether the Commission gives or withholds its approval of such ex- 
penses is something for its own determination in any given instance, in 
the exercise of its sound discretion, at any time, and it cannot estop itself 
from the exercise of such discretion by a vote which may not be modified 
or changed at a time subsequent to its passage, if in the judgment of the 
Commission new circumstances warrant such action. Such a vote is in 
effect but the establishment of a principle of departmental practice, suit- 
able when made but not of necessity equally suitable to all future periods. 

No statute requires the Commission to establish such a permanent 
practice. Payments for expenses of operating privately owned automo- 
biles by employees are now impliedly authorized by statute but limited 
by the passage of St. 1939, c. 309, § 5, on June 23, 1939, to four and one- 
half cents a mile. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 15 

Alcoholic Beverages — License — Time of Renewal. 

Dec. 7, 1939. 
Alcoholic Beverages Control Commission. 

Gentlemen: — I have your letter relative to renewals of licenses under 
the amendment to G. L. (Ter. Ed.) c. 138, contained in St. 1939, c. 263. 

There is nothing in St. 1939, c. 263, or in other portions of the statute 
relative to alcoholic beverages to be drunk on the premises which provides 
that in order to renew a license the holder thereof must apply at any par- 
ticular time prior to the expiration thereof. The statute by implication 
cannot be made to read to the effect that failure of a holder of such a li- 
cense to apply for a renewal on or before a date upon which final action 
upon such license renewals is to be taken by the licensing authorities, 
prior to the expiration in the year in which such license is issued, is a fail- 
ure of such holder to apply for a renewal. The holder of such license must 
apply for a renewal during the life of his license, that is, before the end of 
the year in which it will expire. But if the date of his appUcation for 
renewal is prior to such last day, his license cannot be taken to have been 
lost by reason of his failure to apply for renewal. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Hairdressers — Regulations — Prices — Instructors — Registration. 

Dec. 7, 1939. 
Chairman, Board of Registration of Hairdressers. 

Dear Madam: — I am in receipt of a request by your Board for my 
opinion on certain questions of law. Under a long line of practice and 
procedure such opinions are given only to the head of a division in which a 
board functions, — in your case the Director of Registration. In the 
present instance I will depart from the usual procedure and will answer 
you direct. 

1. You ask me, in effect, whether your Board, by virtue of its Rule 49, 
may prohibit a store from advertising a "$10 permanent wave for $5." 
Your Rule 49 may not be so construed as to prevent the bona fide price 
fixing of shops by your Board under its terms. This is made perfectly 
plain by section 87CC of G. L. (Ter.. Ed.) c. 112, as amended, reading, 
in part : — 

"The board shall make such uniform and reasonable rules and regula- 
tions . . . but nothing herein shall authorize the board to limit ... or 
to regulate or fix compensation or prices ..." 

2. With relation to the license of an instructor, a hairdresser's registra- 
tion is not required to be held by an "instructor" after the latter has 
received registration as an "instructor" by your Board under section 87B 
of said chapter 112. 

3. If, later, an instructor who had not received her hairdresser's regis- 
tration annually desired to resume practice as such hairdresser, she would 
be entitled to be "reregistered" upon payment of the "renewal fee of 
two dollars" under the provisions of section 87GG of said chapter 112. 
There is no requirement that, as is suggested in your letter, she would 
"be compelled to pay up the back fees for the hairdresser's license." 

Very truly yours, 

Paul A. Dever, Attorney General. 



16 P.D. 12. 

Hairdressers — Hairdressing Shops — Lease of Space — Registration. 

Dec. 7, 1939. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You request my opinion upon a question of law 
addressed to you by the Board of Registration of Hairdressers. 

The question which the Board asks is, in effect, whether or not space 
or booths in a hairdressing shop may be leased for use as separate hair- 
dressing shops and registered as such. 

If such leased space is operated in the manner set forth in section 87 AA 
of G. L. (Ter. Ed.) c. 112, inserted by St. 1935, c. 428, § 2, and is not 
merely a colorable pretext to divide up with the appearance of different 
shops a single establishment operated by the same registered hairdresser 
or by the same individual employing one or more registered hairdressers, 
then there is no reason why such space or booths may not be separately 
registered if they themselves, respectively, comply with all the require- 
ments of the statutes and rules governing hairdressing shops. 

In each instance where new registration is appHed for upon space or 
booths leased in a hairdressing shop it is for the Board carefully to consider 
all the circumstances connected with the leasing and to determine whether 
the new shop is in fact a separate and independent establishment operated 
as provided in said section 87AA. If the Board decides that such is not 
the fact, registration should not be granted for a shop upon such a leased 
space or booth. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Municipalities — Appropriation — Money received from Insurance. 

Dec. 12, 1939. 
Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You ask me, with relation to money received by a city 
from a fire insurance company as payment of a loss on a municipal build- 
ing, caused by fire, "whether the city can legally appropriate this money 
for purposes other than as set forth in G. L. (Ter. Ed.) c. 44, § 63." 

I answer your question to the effect that section 63, which deals solely 
with money received by a city from a sale of real estate, is not applicable 
to money received by a city upon a policy of fire insurance. No applica- 
tion of section 63 to money received from a fire insurance company can 
be read into the exphcit language of section 63 by mere implication. 

I am of the opinion that money so received as payment for the fire loss, 
in the absence of any statute expressly dealing with the subject — and 
there appears to be none such — should be paid into the general treasury 
of the municipality, and may be spent therefrom, by appropriation, for 
proper municipal purposes. 

Very truly yours, 

Paitl a. Dever, Attorney General. 



P.D. 12. 17 

Alcoholic Beverages — Transfer of License — Receivership. 

Dec. 12, 1939. 
Alcoholic Beverages Control Commission. 

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

"As you know, section 23 of the Liquor Control Act permits licensing 
authorities to transfer a license for the sale of alcoholic beverages from one 
corporation to another if the parties interested in such business retain 
substantially the same interest therein. 

Query : Is a licensed corporation which has been petitioned into receiver- 
ship eligible to have its license transferred to another corporation during 
the period of the receivership proceedings?" 

I answer your question to the effect that while the receivership is in 
effect the license may not be transferred to a new corporation without 
proper authority obtained from the court by whom the receiver was ap- 
pointed. Irrespective of the various provisions of section 23 of G. L. 
(Ter. Ed.) c. 138, as amended, respecting restrictions upon the use and 
transfer of licenses, the license of a corporation for which a receiver has 
been appointed is in a sense an asset or property of the corporation and 
so is to be safeguarded by the receiver, and after his appointment the 
officers or stockholders of the corporation have no authority to deal with 
or convey it unless such action on their part is with the explicit sanction 
of the court. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Airports — Great Ponds — Department of Public Works. 

Dec. 14, 1939. 
Mr. Crocker Snow, Director, Massachusetts Aeronautics Commission. 

Dear Sir : — I am in receipt of your letter relative to a vote passed 
on October 18, 1939, by the Department of Public Works relative to the 
establishment of airports on bodies of water. 

The vote, as you have advised me, reads, in part: "... hereby es- 
tablishes as an airport the surface of all great ponds within its charge and 
all tidal water ..." 

Assuming, for the purpose of answering the particular query in your 
letter, that the Department of Public Works had authority to pass the 
vote referred to, by virtue of various statutes which they mention therein, 
it can have no application to any pond which contained in its natural state 
less than ten acres of land. G. L. (Ter. Ed.) c. 91, § 35. It cannot relate 
to any bodies of water which have been specifically placed in charge of 
other governmental agencies, from time to time, by the Legislature. It 
cannot relate to reservoirs nor to the Charles River Basin, which you 
mention, as the former are invariably in charge of other governmental 
agencies and the latter is specifically in charge of the Metropolitan District 
Commission. It cannot relate to rivers generally, as such streams are not 
within the scope of the control of the Department of Public Works in 
relation to matters such as the vote refers to. 

Very truly yours, 

Paul A. Dever, Attorney General. 



18 P.D. 12. 

Appropriation — Fiscal Year — Statute. 

Dec. 16, 1939. 
Hon. George E. Murphy, Commissioner and Comptroller. 

Dear Sir : — You have asked my opinion as to the meaning and effect 
of the budget appropriation of $2,000 for each of the years 1939 and 1940 
contained in St. 1939, c. 518, item 454a, "For expenses of the temporary 
commission on apprentice training," taken in connection with St. 1938, 
c. 448, entitled "An Act to estabhsh within the Department of Labor and 
Industries a temporary commission on apprentice training and defining 
the powers and duties of said commission," which provides in section 2 
that "The commission may not expend for any and all purposes in any 
one year a sum in excess of one thousand dollars." 

The question arises out of the facts that of the $1,000 special appropria- 
tion provided by St. 1938, c. 497, item 456a, which was available for two 
years, none of the money was expended during the 1938 fiscal year, so 
that the entire balance of $1,000 was carried forward to the 1939 fiscal 
year; that subsequently $667.72 was spent up to the time when the 
$2,000 was appropriated under the 1939 statute; and that when said $2,000 
appropriation was made you reverted the unexpended balance of the 
previous appropriation under other provisions of the statutes. 

You ask whether, in connection with the proposed employment of a 
secretary for the Commission, it is possible to pay the secretary for services 
performed during the 1939 fiscal year when there had previously been ex- 
pended $667.72 in the 1939 year from the appropriation made by St. 1938, 
c. 497, and $206.11 from the appropriation made under St. 1939, c. 518. 

St. 1939, c. 518, is entitled "An Act further in addition to the general 
appropriation act making appropriations to supplement certain items con- 
tained therein, and for certain new activities." Section 1 begins with the 
words: "To provide further for supplementing certain items in the gen- 
eral appropriation act, and for certain new activities, ..." Section 2, 
item 454a, then provides, ' Tor expenses of the temporary commission on 
apprentice training" $2,000 for each fiscal year 1939 and 1940. 

I am of opinion that the 1939 statute providing $2,000 for each of the 
fiscal years 1939 and 1940 supersedes, and to that extent repeals, the limita- 
tion contained in St. 1938, c. 448, and that "the commission may not 
expend for any and all purposes in any one year a sum in excess of one 
thousand dollars." It would appear that the Legislature intended to 
provide, in 1939, "for certain new activities" of the temporary Commis- 
sion for the years 1939 and 1940 which were not contemplated when the 
1938 statute was enacted. 

I therefore advise you that under the 1939 statute the Commission is 
entitled to expend as much as $2,000 in each of the fiscal years 1939 and 
1940, and that it is not limited to a total expenditure of $1,000 in either 
of those years. It is therefore possible to pay the secretary of the Com- 
mission for services in the 1939 fiscal year within these limitations. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 19 

Department of Public Utilities — Sale of Securities — Delegation of 

Authority. 

Dec. 18, 1939. 

Mr. Allan Brooks, Administrative Secretary, Deyartrnent of Public 

Utilities. 

Dear Sir : — I am in receipt of your letter containing a copy of the 
vote of the Commission requesting my opinion relative to its duties and 
powers under the Sale of Securities Act, G. L. (Ter. Ed.) c. IIOA. The 
vote reads as follows: 

" Voted, That the Attorney General of the Commonwealth be requested 
by the Commission to render an opinion interpreting the powers and 
duties of the Commission under chapter llOA of the General Laws (Ter. 
Ed.), as amended by chapter 442 of the Acts of 1939, particularly with 
reference to the question of public hearings by any person or persons 
aggrieved by an order or finding of the Commission or its failure to make 
such order or finding under section 13 of said act, and including answers 
to the following questions: 

1. Can the Commission delegate to any of its subordinates any duty 
other than to investigate and report upon any matter arising under the 
act? 

2. Can the Commission delegate to subordinates the authority to use 
their discretion in passing upon matters within the scope of the work 
required under the Sale of Securities Act, for example: 

(a) To qualify a security; 

(6) To register a broker or salesman ; 

(c) To revoke a certificate of registration as a broker or salesman; 

{d) To create an exemption; 

(e) To exclude an exemption; 

(/) To promulgate a fraud order; 

{g) To act upon a financial report of a broker or salesman ; 

Qi) To decide what constitutes a security; 

(z) To decide what constitutes fraud; 

{j) To decide what constitutes a sale; 

{k) To decide what constitutes ail exempted security under sections 
3 and 4; 

(/) To decide what constitutes good character of an applicant for a 
broker's or salesman's registration and what qualifications are 
necessary to engage in the brokerage business?" 

The Sale of Securities Act, G. L. (Ter. Ed.) c. llOA, as originally en- 
acted by St. 1921, c. 499, placed the administration of the act in the hands 
of "the commission supervising and controlling the department of public 
utilities under chapter twenty-five" [§ 2 (a)]. 

It was not until St. 1929, c. 287, that there was created in the Depart- 
ment of Public Utilities "a securities division," which should "be under 
the charge of a director." G. L. (Ter. Ed.) c. 25, § 12A, inserted by St. 
1929, c. 287, § 1. This provision has now been repealed by St. 1939, 
c. 442, which provides that "notwithstanding such repeal, all functions 
in relation to the administration and enforcement of chapter one hundred 
and ten A of the General Laws imposed upon the commission of the de- 
partment of public utilities prior to the effective date of such repeal, 



20 P.D. 12. 

whether or not delegated to the securities division in said department, 
shall be performed by said commission." St. 1939, c. 442, § 1. 

It becomes necessary, therefore, to examine the provisions of chapters 
25 and llOA of the General Laws, as most recently amended, in order to 
determine to what extent the administration of the Sale of Securities Act 
requires action by one or more members of the Commission, and to what 
extent it may be delegated to officers and employees of the Commission. 

Chapter 25, entitled "Department of Public Utilities," provides that 
the department "shall be under the supervision and control of a commis- 
sion of five members" (§2). 

Section 8A, inserted by the 1939 statute which repealed the provisions 
for the Securities Division, provides (St. 1939, c. 442, § 2): "For the per- 
formance of the functions in relation to the administration and enforce- 
ment of chapter one hundred and ten A imposed upon the commission, 
the commission may employ such assistants and other employees as are 
required therefor." 

This language follows closely the language of the repealed section 12A, 
which provided: "Said division [i.e., the securities division] shall perform 
such of the functions in relation to the administration and enforcement 
of chapter one hundred and ten A imposed upon the commission by said 
chapter as the commission may from time to time determine ..." 

This similarity of language indicates that the Legislature intended that 
in performing the functions formerly entrusted to the Securities Division 
"in relation to the administration and enforcement" of the Sale of Se- 
curities Act the Commission was entitled to have the aid of "assistants 
and other employees " of the Commission. But it does not follow that these 
assistants and employees can themselves make orders and findings, as the 
director of the division formerly could, for the latter's authority in these 
matters was derived from section 12B, now repealed, which specifically 
provided that an order or finding by him or a refusal to make an order or 
finding should be deemed an order, finding, failure or refusal by the 
Commission. There is no extant provision indicating that an assistant or 
other employee can be vested with such authority by delegation. Such 
broad powers are not to be inferred from G. L. (Ter. Ed.) c. 25, § 10, as 
amended by St. 1939, c. 442, § 3, which provides that "the commission 
may assign to all officers and employees appointed or employed under the 
four preceding sections [which includes the new section 8A, supra] such 
duties as it shall from time to time deem advisable, but all acts of such 
officers and employees shall be done under the supervision and control of, 
and subject to revision by, the commission." 

This section must be construed in connection with section 4, which, as 
most recently amended by St. 1938, c. 221, provides: — 

"In order to promote efficiency in administration he [the chairman] 
shall from time to time make such division or redivision of the work of 
the department among the commissioners as he deems expedient. All of 
the commissioners shall, if so directed by the chairman, participate in the 
hearing and decision of any matter coming before the commission. In the 
hearing of all matters other than those of formal or administrative char- 
acter coming before the commission, one or more commissioners shall 
participate and in the decision of all such matters at least three commis- 
sioners shall participate; provided that any such matter may be heard, 
examined and investigated by an employee of the department designated 
and assigned thereto by the chairman, with the concurrence of at least 



P.D. 12. 21 

three commissioners. Such employee shall make a report in writing rela- 
tive to every such matter to the commission for its decision thereon. For 
the purposes of hearing, examining and investigating any such matter 
such employee shall have all of the powers conferred upon a commissioner 
by section five A [i.e., the power to summon witnesses, administer oaths 
and take testimony in investigations and inquiries made by the depart- 
ment and in all i)roceedings before it], and all pertinent provisions of said 
section shall apply to such proceedings. In every such case the concur- 
rence of a majority of the commissioners participating in the decision shall 
be necessary therefor." 

Section 5 of said chapter 25 provides: "When so requested by any party 
interested, the commission, or any member or members acting for the 
commission, shall rule upon any question of substantive law properly 
arising in the course of any proceedings before the commission or any 
member or members thereof, and any party in interest aggrieved by such 
ruling may object thereto, and may secure a review thereof as hereinafter 
provided." 

Jurisdiction is conferred upon the Supreme Judicial Court "in equity 
to review, modify, amend or annul any ruling or order of the commission, 
or of any member or members representing the commission." This sec- 
tion clearly contemplates that reviewable decisions of the Commission are 
to be made by the Commission or one or more of its members after pro- 
ceedings before the Commission or one or more of its members. 

There are no other provisions in said chapter 25 relevant to the inquiry. 

The foregoing analysis of the provisions of chapter 25 leads to these 
conclusions: That the functions relative to the administration and en- 
forcement of the Sale of Securities Act which may be delegated to assist- 
ants and other employees of the Commission include those of purely 
formal or administrative character; that with respect to matters requir- 
ing decisions of the Commission predicated upon proceedings by way of 
investigation or hearing the only duties which may be assigned to assist- 
ants and other employees are in the nature of examination, investigation, 
report and recommendation. This construction of the statute is in con- 
formity with the basic principles of administrative law as they have been 
recentlv enunciated by the United States Supreme Court. Morgan v. 
United States, 298 U. S. 468, 480-482; AS/izeZds v. Utah Idaho Central R.R. 
Co., 305 U. S. 177, 182; cf. Cupples Company Manufacturers v. National 
Labor Relations Board, 103 Fed. (2d) 953 (C. C. A. 8th, 1939) ; American 
Employers' Ins. Co. v. Commissioner of Insurance, 298 Mass. 161. 

In the Morgan case the United States Supreme Court (Hughes, C.J.) 
said (pp. 481-^82): — 

"This necessary rule does not preclude practicable administrative pro- 
cedure in obtaining the aid of assistants in the department. Assistants 
may prosecute inquiries. Evidence may be taken by an examiner. Evi- 
dence thus taken may be sifted and analyzed by competent subordinates. 
Argument may be oral or written. The requirements are not technical. 
But there must be a hearing in a substantial sense. And to give the sub- 
stance of a hearing, which is for the purpose of making determinations 
upon evidence, the officer who makes the determinations must consider 
and appraise the evidence which justifies them. That duty undoubtedly 
may be an onerous one, but the performance of it in a substantial manner 
is inseparable from the exercise of the important authority conferred." 



22 P.D. 12. 

It remains to apply these general conclusions to the several various 
functions of the Commission under the Sale of Securities Act, G. L. (Ter. 
Ed.) c. IIOA, as amended. 

(a) To qualify a security. 

Section 5 of said chapter 110 A, provides that no security shall be sold 
until there has been filed a notice of intention to sell it; that upon the 
filing of the notice the security may be sold except during such period as 
sale is forbidden; and that within seven days after the notice is filed, or 
such further time as the Commission may authorize, there be filed with 
the Commission a statement containing such relevant information as the 
Commission requests relative to the security. 

Section 6 provides that the Commission shall make an investigation of 
any security of which notice of intention to sell has been filed; and that 
if the information contained in the statement filed is inadequate the Com- 
mission may require further information, including an examination and 
reports by accountants, engineers and other experts, verified by oath, as 
may in the Commission's judgment be necessary to enable it to determine 
whether the sale of such security would be fraudulent or would result in 
fraud. At any time after filing of the notice of intention, and pending 
such determination, the Commission may make an order forbidding the 
sale of such security, which shall remain in force until revoked by the 
Commission. 

In my opinion, only the Commission acting as provided in G. L. (Ter. 
Ed.) c. 25, § 4, as amended, may forbid the sale of a security or revoke a 
prior order forbidding the sale of a security. I am also of opinion that the 
judgment of the Commission, acting as prescribed under said section 4, 
is essential to determine whether the information contained in the state- 
ment filed is inadequate and that additional information is necessary to 
enable the Commission to determine whether the sale of the security 
would be fraudulent or would result in fraud. The statute does not 
require an act of the Commission to qualify the security for sale. The 
security is qualified upon the filing of notice, in the absence of proceed- 
ings by the Commission to forbid the sale. 

(6) To register a broker or salesman. 

Section 9 of said chapter llOA, inserted by St. 1932, c. 290, provides 
that no person shall sell any security unless registered as a broker or sales- 
man by the Commission. An applicant shall demonstrate to the reason- 
able satisfaction of the Commission that he is of good moral character and 
of sufficient qualifications to engage in the business proposed. Registra- 
tion expires December 31st in every year, but a person who has been regis- 
tered since September 30, 1924, is entitled to a renewal unless his regis- 
tration be suspended or revoked, and any other person applying for a 
renewal is similarly entitled to it, except that the Commission may, for 
cause, specifically require such person to demonstrate that he possesses 
the qualifications. 

I am of opinion that only the Commission, acting as prescribed under 
section 4 of said chapter 25, may determine the qualifications of applicants 
for original registration and whether cause exists to require an applicant 
for renewal to demonstrate his qualifications, and after such action to 
determine his qualifications for a renewal of his registration. In all other 



P.D. 12. 23 

■cases renewals may be delegated to assistants or other employees of the 
Commission. 

(c) To revoke a certificate of registration as a broker or salesman. 

Section 12 of said chapter llOA, as further amended by St. 1938, c. 445, 
§ 10, provides that the Commission may at any time require a registered 
broker or salesman to furnish, under oath, full information regarding his 
financial condition (in the case of brokers) and the conduct of his busi- 
ness. It also provides that if it shall appear to the Commission that any 
registrant is or has been conducting his business in a fraudulent manner 
or in a manner which, if continued, would result in fraud, or has evaded 
or violated the statute, the Commission, upon notice to the registrant, 
may suspend or revoke his registration as broker or salesman or both. 

I am of opinion that only the Commission, acting as prescribed under 
section 4 of said chapter 25, may exercise the authority to suspend or 
revoke the registration of a broker or salesman. 

(d) To create an exemption. 

(e) To exclude an exemption. 

Section 3 of said chapter llOA provides that the prohibitions and 
restraints imposed by the act shall not apply to certain designated ''types 
of sales." Subsection (j) provides that the Commission may, in accord- 
ance with such rules and regulations as it may prescribe, "exempt other 
sales and types of sales from the provisions of this chapter"; and that the 
Commission "may for cause forbid any sale exempted under the provi- 
sions of" certain enumerated subsections of said section 3. 

Section 4 of said chapter 110 A provides that the prohibitions and re- 
straints imposed by the act shall not apply to certain designated "types 
of securities." Subsection (i) provides that the Commission may from 
time to time, in accordance with its rules and standards, add to the exemp- 
"tions of this section other securities and .classes of securities, such exemp- 
tions to run until otherwise ordered by the Commission. Subsection (j), 
added by St. 1938, c. 445, § 5, further provides that the Commission may, 
by order, in accordance with such rules and standards as it may prescribe, 
exclude from the exemptions of this section any securities or class of 
securities, and may likewise include the same subsequently within such 
exemptions. 

In my opinion, the powers to create and exclude exemptions under the 
foregoing sections 3 and 4 of said chapter llOA are to be exercised only 
by the Commission acting as prescribed in section 4 of said chapter 25. 

(/) To promulgate a fraud order. 

Section 7 of said chapter llOA provides that the Commission may 
require certain information from any person selling or issuing or pro- 
posing to sell or issue any security of which notice of intention to sell 
has been filed. 

Section 8 of said chapter llOA provides that failure to submit the in- 
formation required by the foregoing section, as well as by sections 5 and 6, 
shall in the absence of satisfactory^ explanation be deemed prima facie 
evidence of fraud; and that "whenever the commission is of the opinion, 
from information disclosed or in its possession, that the sale of any se- 
curity ... is fraudulent or would result in fraud, it shall make a finding 



24 P.D. 12. 

to that effect," and that thereafter such security shall not be sold until 
further action by the Commission or by the court. 

I am of opinion that only the Commission, acting as prescribed in sec- 
tion 4 of said chapter 25, may promulgate a fraud order under this section. 
I believe, however, that assistants and other employees of the Commis- 
sion may require furnishing of information, periodically or otherwise, in 
accordance with rules adopted by the Commission. 

(g) To act upon a financial report of a broker or salesman. 

As I interpret this question I have already covered it in my preceding 
answers. 

{h) To decide what constitutes a security, 
{i) To decide what constitutes fraud, 
(j) To decide what constitutes a sale. 

The act defines "security" in section 2 (c) of said chapter llOA, "fraud" 
in section 2 (g), and "sale" in section 2 (d). 

In case any question of fact or law arises under these definitions, it is, 
in my opinion,. the function of the Commission, acting as prescribed in 
section 4 of said chapter 25, to decide the same. In routine matters, in- 
volving no dispute, and where the application of the definitions to the 
facts admits of no doubt, the assistants and other employees of the Com- 
mission may, I believe, informally pass upon such matters. 

(fc) To decide what constitutes an exempted security under sections 3 and 4. 

I have already discussed the provisions of sections 3 and 4 of said chap- 
ter llOA relating to exempted types of sales and securities. It is, in my 
opinion, for the Commission to determine what constitutes an exempted 
type of sale or security under these sections. 

(/) To decide what constitutes good character of an applicant for a broker's ■ 
or salesman's registration and what qualifications are necessary to 
engage in the brokerage business. 

I have discussed this above under (6) and (c), dealing with the granting 
and revoking of registrations where these questions arise. 

I have attempted in this opinion to indicate the extent to which the 
Commission may delegate to any of its subordinates duties other than to 
investigate and report upon matters arising under the act, in answer to 
your first question. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Constitutional Law — Board of Finance of Fall River — Laborers — 

Pension. 

Dec. 18, 1939. 

Mr. Edmond Cote, Chairman, Fall River Board of Finance. 

Dear Sir : — Your letter of September 6, 1939, requests in behalf of 
the Fall River board of finance my opinion as to the constitutionality of 
St. 1939, c. 95, in so far as it relates to (1) the appropriation of pubhc 
money for a private purpose, and (2) its effect upon the powers of the Fall 
River board of finance as outlined in St. 1931, c. 44. 



P.D. 12. 25 

Attached to your letter is a copy of a communication from Thomas J. 
Logan, Commissioner of PubUc Works, to Mayor Alexander C. Murray, 
dated August 29, 1939, wherein is set forth a resume of the street depart- 
ment records relating to James W. Mooney. Your letter of September 14, 
1939, supplements that of the 6th by forwarding a copy of the Mooney 
application for a laborer's pension. You further inform me that this 
application is in due form, having been approved by the mayor and cor- 
poration counsel, and that the application was granted by the commis- 
sioner of public works with the approval of the board of finance by a 
majority vote. 

The board of finance for the city of Fall River was created by virtue of 
St. 1931, c. 44. Section 8 of the act provides, in part, that "the board 
shall have supervision over the financial affairs of said city, and no appro- 
priations shall be made, and no debt incurred, except with the approval 
or upon the recommendation or requisition of the board, which approval, 
recommendation or requisition shall be in writing." The generality of 
the foregoing provision is given full effect and operation, without limita- 
tion, by specific and definite language in the section referred to. 

In Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 499, it was said by 
the court: "Municipal corporations are both creatures of the State and 
instrumentalities through which the State acts. In the performance of 
public functions they may be required, within rational limits, to assume 
new liabilities without their consent and without reimbursement." 

St. 1939, c. 95, the legislation now under consideration, required the 
city of Fall River to temporarily reinstate James W. Mooney, as a laborer, 
for the sole purpose of being retired on a pension at a rate equal to one- 
half the rate of annual compensation received by him at the time of his 
separation from the classified labor service. It appears that the appli- 
cant had "received $4,500 for compensation and S224.43 for medical 
services and hospitalization." 

G. L. (Ter. Ed.) c. 152, § 73, as amended, provides, in part: "Any 
person entitled to receive compensation as provided by section sixty-nine 
from the commonwealth or from such county, city, town or district, who 
is also entitled to a pension by reason of the same injury, shall elect whether 
he will receive such compensation or such pension, and shall not receive 
both, except in the manner and to the extent provided by section twenty- 
five D or thirty-one D of chapter thirty-two." 

Mooney now seeks a pension in addition to such compensation. 

The Legislature has the constitutional power to grant pensions to 
selected individuals. The grant transcends the power only when no legiti- 
mate public good is to be derived from it, — "where the only public ad- 
vantage is such as may be incident and collateral to the relief of a private 
citizen." No constitutional right is violated if the terms of one grant 
differ from those of another. Gray v. Salem, 271 Mass. 495, 498, citing 
Opinion of the Justices, 175 Mass. 599. 

In the case of Horrigan v. Mayor of Pittsfield, supra, the court said: 
"If, on the other hand, the enactment is designed to serve a genuine pub- 
lic purpose in pursuance of the broad power granted to the Legislature to 
make all manner of wholesome and reasonable laws as they shall judge 
to be for the good and welfare of the Commonwealth, it is not unconsti- 
tutional merely because, through its operation, money may come to an 
individual." 

The act in question sets forth that Mooney was employed for over 



26 P.D. 12. 

thirty-six years as a teamster and laborer in the service of the city of 
Fall River, and that his separation from the service was occasioned by 
a disability arising out of and in the course of his employment. It must 
be assumed that the law-making body was fully acquainted with all the 
facts respecting Mooney's employment, including the receipt of compen- 
sation for disability, and in considering the subject matter of the legisr- 
lation gave due weight to all factors pertinent thereto. 

It is my opinion that the Legislature, in enacting St. 1939, c. 95, acted 
within the general scope of its authority and in pursuance of the broad 
discretionary powers with which it is invested. I therefore rule that the 
act is constitutional. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Dentists — Advertising — Letters. 

Dec. 28, 1939. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You have, through a communication from the Board of 
Dental Examiners, asked my opinion as to whether the sending of certain 
types of letters by dentists, copies of which you have laid before me, 
violates the prohibition against soliciting patronage of the services of a 
dentist by "personal solicitation or other manner of advertising," as set 
forth in G. L. (Ter. Ed.) c. 112, § 52A. 

The types of letters in question purport to advise patients that a certain 
dentist has installed in his office the "professional budget plan," by 
means of which payments may be made on a deferred payment system. 

One type of letter, marked "A," appears from its wording to be merely 
a dunning letter for the collection of sums already due a dentist from one 
who has already become obligated to him as a patient, and merely sug- 
gests the use of the budget plan for the purpose of liquidating the debt. 
This type would not appear to be within the prohibition of the said sec- 
tion 52A. 

The other type of letter which you have laid before me, marked "B," 
is so worded that, if sent to one not already a patient, it might well be 
determined to be an advertisement and a solicitation of business for- 
bidden by the said section 52A. It is probable that the sending of this 
type of letter to one who, though not at the moment under the dentist's 
care, had previously been so, at least to an extent which might fairly be 
said to have created a recognized dentist-patient relationship of more 
than a temporary character, would not be held to violate the provisions 
of the applicable statute. 

These matters are, of course, ones which may be ultimately for judicial 
determination, under the doctrines enumerated in Commonwealth v. Brown, 
302 Mass. 523. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 27 

Public Health — Frozen Desserts — Definitions — Statute. 

Dec. 29, 1939. 

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

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

"This department would like an opinion from you relative to G. L. 
(Ter. Ed.) c. 94, § 65G, pertaining to frozen desserts. 

Included in this section is the following definition: ' "Stabilizer," pure 
gelatine or vegetable gums.' Will you kindly inform this department if 
the word 'pure' modifies the words 'vegetable gums' as well as the word 
'gelatine,' and if the sentence is to be read: ' "Stabilizer," pure gelatine 
or pure vegetable gums.' " 

I am of the opinion that the word "pure" as used in G. L. (Ter. Ed.) 
c. 94, § 65G, as amended, in the definition, " 'Stabijizer,' pure gelatine 
or vegetable gums," refers to gelatine and not to vegetable gums. 

The phrase "pure gelatine" is used in a similar manner in G. L. (Ter. 
Ed.) c. 94, § 64, as amended. Gelatine, as your department informs me, 
exists, for purposes of user, in two distinct forms, one of which is an edible 
substance and the other a form of glue used for purposes oth.er than 
human consumption. Vegetable gums, as your department has informed 
me, are not divided into two such distinct forms. Vegetable gums may, 
of course, be subject to impurities through adulteration or other causes, 
but such impurities are inhibited by sections 186 to 191 of said chapter 
94, and the Legislature would have no occasion to apply the adjective 
"pure" to them specifically in its definition of "stabilizer," whereas a 
specification of one of the two forms of gelatine referred to would seem 
to have been necessary. The Legislature might well have modified the 
word "gelatine" by the word "edible" in the foregoing definition, and 
their employment of the word "pure" would seem to have been with 
much the same significance. Hence it does not appear to have been the 
legislative intent to modify both gelatine and vegetable gums by the 
word "pure" but only the word "gelatine." 

Very truly yours, 

Paul A, Dever, Attorney General. 

State Racing Commission — Public Records — Application. 

Jan. 6, 1940. 
State Racing Commission. 

Gentlemen: — You request an opinion from me, as follows: — 

"The Commission, at a meeting held today, passed the following vote: 

'To request an opinion from the Attorney General as to whether or 

not the Commission has the right to make public the list of stockholders 

filed with applications for licenses to conduct horse and dog racing 

meetings.' 

Will you kindly give the Commission your opinion on this question." 

G. L. (Ter. Ed.) c. 128A, as inserted by St. 1934, c. 374, § 3, provides 
in section 2, in part, as follows : — 

"Any person desiring to hold or conduct a horse or dog racing meeting 
within the commonwealth shall make an application to the state racing 



28 P.D. 12. 

commission, hereinafter called the commission, for a license so to do. 
Such application shall state 

(1) The name of the applicant. 

(2) The post office address of the applicant, and if a corporation, the 
name of the state under the laws of which it is incorporated, the location 
of its principal place of business and the names and addresses of its directors 
and stockholders." 

The section also requires, in subsequent clauses, the setting forth in the 
application of other matters, and that the application be filed with your 
Commission. Your Commission must receive and file such application 
when accompanied by the prescribed check or draft for the fee. 

By section 3 of said chapter 128 A the foregoing described application 
forms the basis for the issuance of a license, which may be granted by your 
Commission after a public hearing. 

There is nothing in said chapter 128 A which specifically forbids the 
making public of such an application or of that part of it which contains 
the list of stockholders of an applicant corporation. Indeed, since the 
application is a prerequisite to the issuance of a license which may be 
granted only after a public hearing, there is nothing which indicates any 
implied intention on the part of the Legislature that such application, or 
any of its parts, is merely for the use of your Commission and is to be 
withheld from public inspection. 

It would seem that such an application, with a list of stockholders 
required as a part thereof, came within the statutory definition of "pub- 
lic records" given in G. L. (Ter. Ed.) c. 4, § 7, which reads: — 

"'Public records' shall mean any written or printed book or paper, 
any map or plan of the commonwealth, or of any county, city or town 
which is the property thereof, and in or on which any entry has been made 
or is required to be made by law, or which any officer or employee of the 
commonwealth or of a county, city or town has received or is required to 
receive for filing, and any book, paper, record or copy mentioned in sec- 
tions five to eight, inclusive, and sixteen of chapter sixty-six, including 
public records made by photographic process as provided in section three 
of said chapter." 

Such an application is plainly " a written or printed paper . . . which" 
an "official of the Commonwealth . . . is required to receive for filing." 

Public records as so defined are required to be open to the inspection of 
the public (VII Op. Atty. Gen. 8) ; and the said application and contents, 
including a list of corporate stockholders, being a public record, you 
have a right to make the same public, since no specific legislative prohibi- 
tion exists to prevent your so doing. 

Section 2 of said chapter 128A, as amended, provides that "such appli- 
cation shall be filed with the commission." No explicit provision for filing 
was to be found in the statute with relation to returns made by pawn- 
brokers, which were determined by the Supreme Judicial Court in Round 
V. Police Commissioner, 197 Mass. 218, not to be pubhc records open to 
inspection, because neither by direct provision nor by implied provision 
had the Legislature required any public official to file them. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 29 

Funeral Director — Registration — School. 

Jan. 8, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You have requested my opinion upon a question Of 
law submitted by the Board of Registration in Embalming and Funeral 
Directing. 

The question submitted to me by said Board is, in effect, whether an 
applicant who has graduated from a school giving courses both in embalm- 
ing and funeral directing may be considered such an applicant for a 
funeral director's registration under the provisions of G. L. (Ter. Ed.) 
c. 112, § 83, as amended, that, if he fulfills the other conditions prescribed 
by said section, he may be registered. 

The applicable provision of said section in this respect reads : — 

"Each applicant for registration as a funeral director, who shall furnish 
the board with satisfactory proof . . . that he has graduated from a 
funeral directing school shall ... be entitled to be examined, and, if 
found by the board to be qualified . . . shall be registered by the board 
as qualified to be licensed ... as a funeral director; ..." 

The Legislature in enacting the foregoing provisions has not seen fit to 
define or describe in any manner what constitutes a "funeral directing 
school." This is in striking contrast to the manner in which it has dealt 
with schools of other callings in the same chapter. It cannot well be said 
that there is in general usage a common and accepted meaning attached 
to the words "funeral directing school" which would embrace known and 
detailed attributes of such an institution or of the length and explicit 
character of instruction ordinarily provided therein. In the absence of 
any legislative pronouncement upon the subject, it cannot be said that 
such a school is necessarily one in which only "funeral directing" is 
taught. Unless the phrase is to be held to be so vague and unintelligible 
as to render the statute in this respect unconstitutional, it must be given 
a reasonable interpretation and be held to be a school in which "funeral 
directing" is taught. It cannot arbitrarily be assumed to mean a school 
in which "funeral directing" alone is taught, to the exclusion of all other 
subjects. 

The name of a school is of little importance in determining whether it 
may fairly be said to be a "funeral directing school." The test is, does 
the school actually furnish an amount of instruction in the trade or calling 
of "funeral directing" to an extent which may fairly be said to be ade- 
quate to equip a pupil with an amount of knowledge and training which 
would render him reasonably proficient in such trade or calling. The fact 
that the school also taught or furnished the pupil with an opportunity to 
learn embalming also would not necessarily prevent such a school from 
being deemed a "funeral directing school." 

The Attorney General does not pass upon questions of fact. It is the 
function of your Board, however, to pass upon the facts necessarily in- 
volved in a determination in any particular instance as to whether a given 
school may fairly be classed as a "funeral directing school," guided by the 
principles of law which I have indicated above. 

Very truly yours, 

Paul A. Dever, Attorney General. 



30 P.D. 12. 

Appropriation — Legislative Intent. 

Jan. 12/1940. 
Mr. F. L. Haynes, Director, Division of Forestry. 

Dear Sir: — You have asked my opinion as to the authority of your 
department to contribute from $350 to $500 from item 280 of the General 
Appropriation Act of 1939 toward the construction of two "exhibits, to 
use at pubHc exhibitions, showing certain phases of conservation work," 
"by use of W. P. A. labor." You state that "it is felt that it would be 
desirable to take advantage of W. P. A. assistance, if possible." 

Item 280 of the said appropriation act reads : — 

"For expenses of certain Works Progress Administration or other fed- 
eral projects in state forests, to be in addition to any amount heretofore 
appropriated for the purpose, $10,000.00" 

The language employed by the Legislature in said item 280 indicates 
that the money appropriated thereunder is to be expended in connection 
with W. P. A. or other Federal projects in State forests; that is, such 
Federal projects as relate to work actually to be performed, in clearing or 
otherwise, actually dealing with such forests themselves, within their 
areas. The language employed cannot be stretched beyond such plain 
meaning so as to indicate a legislative intent that it be spent for construct- 
ing exhibits illustrative of the work of your department, to be placed on 
show before the general public. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Public Health — Narcotics — License — Federal Regulation. 

Jan. 17, 1940. 
Dr. Paul J. Jakmauh, Commissioner of Public Health. 

Dear Sir: — I am in receipt of your letter relative to licenses to manu- 
facture and prepare narcotic drugs under G. L. (Ter. Ed.) c. 94, § 198A 
and § 198B, as amended by St. 1935, § 412. 

Said sections 198A and 198B read : — 

"Section 198A. No person shall manufacture, compound, mix, culti- 
vate, grow, or by any other process produce or prepare narcotic drugs, 
and no person as a wholesaler shall supply the same, without having first 
obtained a license so to do from the department of public health. This 
section shall not apply to retail pharmacists registered under the provi- 
sions of chapter one hundred and twelve. 

Section 198B. The department of public health may annually issue 
licenses as required by the preceding section, but no such license shall be 
issued unless and until the applicant therefor has furnished proof satis- 
factory to the department of public health : (a) that .the applicant is a 
citizen of the United States and of good moral character or, if the applicant 
is an association or corporation, that the managing officers thereof are of 
good moral character, and citizens of the United States, and (6) that the 
applicant is equipped as to land, buildings and paraphernalia properly 
to carry on the business described in his application. No license shall be 
granted to any person who has within five years been convicted of a viola- 



P.D. 12. 31 

tion which said department finds to have been wilful of any law of the 
United States, or of any state, relating to opium, coca leaves or other nar- 
cotic drugs, or to any person who is a narcotic drug addict. Said depart- 
ment may suspend or revoke any license for cause. Said department may 
make rules and regulations adequately to carry into effect the duties herein 
imposed upon it. A fee of ten dollars shall be charged for issuing each 
"such license." 

Said section 198B does not require as a condition prerequisite to the 
issuance of a license that the applicant shall be registered with the Federal 
Bureau of Narcotics. I am of the opinion that your department may not 
add to the specific conditions set forth in section 198B as prerequisites to 
the obtaining of such a license another prerequisite condition, namely, 
that the applicant shall be registered by the Federal Bureau of Narcotics. 

In contradistinction to the said Massachusetts statute, the Federal 
statute authorizing the registration of persons manufacturing or produc- 
ing narcotic drugs is specifically limited to those who are "lawfully en- 
titled to manufacture or produce." The administrators of the Federal 
statute may fairly interpret the quoted words as applying to persons li- 
censed by the State in which they do business, and so may reasonably 
require evidence of the existence of a State license before granting regis- 
tration, without themselves adding any additional requirements to those 
set forth in the particular statute itself under which they function. Har- 
rison Narcotic Law of December 17, 1914, 44 Stat, at L. 96, § 703, as 
amended; 26 U. S. C. A. § 1383 (a). 

The Federal officials, by reason of the terms of the foregoing statute, 
which is a tax statute and not a licensing act under the police power, are 
required to register, on proper application, all who by the State law are 
permitted to deal with narcotic drugs by license if such a license is pro- 
\'ided for by the State statutes. Starnes v. Rose, 282 Fed. 336. 

Our State statute is not open to similar interpretations with relation to 
a prior Federal registration by reason of the difference in its provisions 
and language from those of the United States act. The provisions of the 
State statute do not indicate an intent upon the part of the Legislature 
that a State license should not be granted until after the applicant had 
secured Federal registration, and the granting of such a license should not 
be withheld because Federal registration has not already been granted. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Trade Union — Employer — Contract. 

Jan. 17, 1940. 
Hon. Charles A. Cole, Chairman, Board of Conciliation and Arbitration. 
Dear Sir: — In a recent letter you have written as follows: — 

"The legality of the following provision as part of a working agreement 
between International Brotherhood of Teamsters, Chauffeurs, Stablemen 
and Helpers of America, Local No. 25, and employers holding contracts 
therewith is in question. A copy of the existing agreement is enclosed for 
the purpose of indicating the scope of the conditions now existing. Atten- 
tion is directed to article VI, which this article, if adopted, would supplant. 

'It is agreed that employers will not engage other equipment while 



32 P.D. 12. 

they have available equipment of their own. When necessary to hire 
equipment it is agreed that in order to assist in giving employment to 
members of Local 25 of the International Brotherhood of Teamsters, 
Chauffeurs, Stablemen and Helpers of America, and/or to reduce the idle 
equipment burden of those employers signatory hereto, that such em- 
ployers shall hire said equipment as follows: 

From employers likewise signatory to this agreement, when such em- 
ployers are able to furnish said equipment.' 

The equipment referred to in the above question is to be taken to mean 
horse-drawn or gasoline-driven motor vehicles, including Diesel engines. 
Such equipment can be hired in the ordinary course of business in the 
absence of such an article from the source not included above, from pri- 
vate garages, U-Driv-It companies, and/or independent truckmen known 
as 'gypsies.' 

I also enclose with this a copy of the 1939 agreement, in which you will 
find article VI referred to in the above question. The Board of Concilia- 
tion and Arbitration desires to know whether, in the opinion of the Attor- 
ney General, such a clause in the agreement as given above would be 
legal under the laws of the Commonwealth." 

I am of the opinion that the said article VI, as part of the agreement 
referred to, is not illegal. Its purpose, intent and probable effect, read 
in the light of the context of the whole agreement, are not to create any 
monopoly in the type of business in which the employers are engaged but 
are to aid, as far as may be under certain circumstances, the members of 
the signatory union in obtaining work under the general scope of their 
agreement with their various employers. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Administration and Finance — Rule-making Power 
— Allowance for Maintenance. 

Jan. 22, 1940. 

Hon. George E. Murphy, Commissioner and Comptroller. 

Dear Sir : — In a recent letter you have asked my opinion as to whether 
under the authority of Rule 10 of the Rules and Regulations made by the 
Division of Personnel and approved by the Governor and Council, under 
G. L. (Ter. Ed.) c. 30, § 46, providing for the application and administra- 
tion of the classification and specifications established under said chapter 
30, you may from time to time set the figure which you will approve as a 
maintenance allowance for a superintendent who receives a salary plus 
maintenance. 

The provisions of Rule 10 seem to be within the rule-making power 
delegated by said section 46. By such rule the approval of the Comp- 
troller is required with relation to the amount of maintenance which shall 
go with certain positions. The reasonable cost of the allowance for food 
included in maintenance may well be subject to the approval of the Comp- 
troller, and what amount is reasonable for such purpose may well vary 
from time to time, so that the power of the Comptroller with relation to 
such approval is not exhausted by an initial approval of a given figure in 
any particular year. The setting up of figures in advance by you is merely 
an indication of what sum will meet with your approval when it is re- 



P.D. 12. 33 

quired to be given. It is not itself the approval mentioned in the rule but 
is a manifestation of what figure you will make the subject of your ap- 
proval. I do not see any impropriety or illegality in what you have done 
in this respect as outlined in your letter. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Reserve Officer ■ — National Guard — Tour of Duty. 

Jan. 26, 1940. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sir: — You have asked my opinion concerning the status of a 
motor vehicle examiner in the Registry of Motor Vehicles who has been 
ordered to proceed to Fort Benning, Georgia, on February 20, 1940, as a 
student for the National Guard and Reserve Officers Course, which will 
continue for a period of three months. I am informed that this order is 
from the Commander-in-Chief. 

I quote herewith a portion of an opinion rendered by me to the Adju- 
tant General, under date of November 6, 1939, regarding the extra period 
of seven days' field traming required by order of the Commander-in-Chief 
(Attorney General's Report, 1939, p. 124) : — 

"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 ordinaiy 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 Massa- 
chusetts National 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 perform 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 militia 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 
Commonwealth, as he was while undergoing the first training. Such a 
person will be entitled to his usual salary from the Commonwealth while 
imdergoing the seven days' field training referred to in your letter as about 
to be required." 

Your first question is as follows : — 

"Is the special order directed to Captain . . . (the motor vehicle ex- 
aminer) such an order as is referred to in section 11 of G. L. (Ter. Ed.) 
c. 33, inserted by St. 1939, c. 425, under which section the Commander-in- 
I Chief ' may order out any part of the organized militia for escort and 
other duties?'" 



34 P.D. 12. 

I answer this question in the affirmative, as the tour of duty by the 
( person above referred to would come under the category of "other duties.'^ 
Your second question reads : — 

"Would attendance as ... a student for the National Guard and 
Reserve Officers Course, Infantry School, Fort Benning, Georgia, referred 
to in the special order, be 'service in the organized militia, under sections 
eleven, seventeen, eighteen, nineteen, one hundred and five or one hun- 
dred and fifty-four,' so that the provisions of section 54 of G. L. (Ter. Ed.) 
c. 33, inserted by St. 1939, c. 425, would be applicable?" 

It would seem to follow that an answer to this question is not necessary. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commissioner of Conservation — Rule-making Power — Great Ponds — 
State Forests — Fishing. 

Jan. 29, 1940. 

Mr. Herbert Urquhart, Acting Commissioner of Conservation. 

Dear Sir: — You have asked my opinion as to the authority of the 
Commissioner of Conservation "to control, regulate or prohibit fishing in. 
great ponds entirely within the boundaries of a State forest or a State 
park." 

By G. L. (Ter. Ed.) c. 132, § 34, and c. 132A, § 7, the Commission is 
given power to make "rules and regulations relative to hunting and fish- 
ing" on lands within State forests and State parks, respectively. At the 
time of the original enactment of the provisions of section 34 of said chap- 
ter 132 the terms of G. L. c. 130, § 24, were in force, and read: — 

"The fishery of a pond, the area of which is more than twenty acres^ 
shall be public, except as hereinafter provided; and all persons shall, for 
the purpose of fishing, be allowed reasonable means of access thereto." 

These provisions, by St. 1930, c. 393, were re-enacted in a slightly dif- 
ferent form prior to the passage of what is now the said G. L. (Ter. Ed.) 
c. 132A, § 7, and as section 36 of G. L. (Ter. Ed.) c. 131, read: — 

"A great pond shall be public, except as hereafter provided, for the 
purpose of fishing, hunting and boating thereon and all persons shall be 
allowed reasonable means of access thereto for such purpose." 

In order that our statutory law may be read as an harmonious whole, 
the provisions of said section 34 of chapter 132 and of section 7 of said 
chapter 132A, granting authority to make rules and regulations for State 
forests and State parks, must be construed in the light of the terms of the 
General Laws, to which I have referred, dealing specifically with the rights 
of the public in great ponds. It has long been the settled law of Massa- 
chusetts that the control of great ponds, in the public interest, is in the 
Legislature, which represents the public. It may regulate and change 
the rights of inhabitants to use these ponds, or take them away altogether, 
to serve some paramount public purpose. VII Op. Atty. Gen. 262, and 
cases there cited. 

But any statute the effect of which is to limit the rights of inhabitants 
to fish in great ponds is derogative of the rights of the public generally, 
and is to be strictly construed. II Op. Atty. Gen. 223. 

It follows that the rule-making power given by said sections 34 and 7 



P.D. 12. . 35 

cannot be construed to be a grant of power to the Commissioner to pro- 
hibit fishmg in the great ponds which are included in the State forests or 
State parks, but only an authority to regulate such pursuit by reasonable 
rules. 

.rJ}^^^ ^j"" "great pond/' as now appearing in said section 36 of G. L. 

(ler. Ed.) c. 131, has the same meaning as used in section 24 of G. L., 
c. 130, from which it is derived, and though as so used it has been held 
by one of my predecessors in office (VII Op. Atty. Gen. 262) to have cut 
off the right of the public to fish in great ponds which are twenty acres or 
less m area, where the pond is entirely surrounded by land of private 
riparian owners or by private riparian owners and the Commonwealth or 
a political subdivision thereof, and compensation for fishing rights has 
been paid by the private owners, the land surrounding the great ponds 
now in question is not in such ownership but solely in the ownership of 
the Commonwealth. 

Accordingly, even if the ponds in question be less than twenty but 
more than ten acres in area, they will be such great ponds as the inhabit- 
ants have a right to fish in, and the opinion which I have expressed herein 
will apply to your right to regulate but not prohibit fishing under your 
rule-making power. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Insurance — Mutual Benefit Association — Dissolution. 

Jan. 30, 1940. 
Hon. C. F. J. Harrington, Commissioner of Insurance. 

Dear Sir:— You have asked my opinion as to whether a certain in- 
corporated domestic mutual benefit association which has determined to 
wind up Its affairs, and has already distributed a large part of its assets 
to Its members, has adopted a procedure which is in accordance with law. 

I am advised by the documents which you have forwarded to me that 
this particular association had no creditors which were not properly paid ; 
that under its by-laws its members are limited to a single group, now 
not over two hundred and fifty, who are its sole beneficiaries; that each 
and every member has agreed in writing to the conversion of the assets 
of the association into cash and to its equal distribution by a board of 
trustees existing in the make-up of the association, from time to time 
among the members, less necessary expenses, under a scheme to be adopted 
by the trustees, until all such assets shall have been so distributed; and 
that the trustees may then take such steps as they deem necessary look- 
ing toward dissolution. 

Assuming that proper votes were taken looking to the attainment of 
the desired end, not contrary to the by-laws, and that there are no other 
factual considerations involved, I am of the opinion that it cannot now 
be said that the "procedure taken in the above situation," as the quoted 
words are used in your letter, is not in accordance with law. 

Corporations, including mutual benefit associations, have a right to 
take steps to wind up their affairs, distribute their assets and seek dissolu- 
tion, by consent of all stockholders or members, unless the Legislature has 
established some other mode for accomplishing the same result, which by 



36 " P.D. 12. 

its nature is exclusive, or unless their business is of such a public character, 
as in the case of a railroad, that the pubhc interest will not permit of such 
an abandonment of a franchise. Treadwell v. Salisbury Mfg. Co., 7 Gray, 
393, 404-406; Commonwealth v. Smith, 10 Allen, 448, 455; Duke v. 
Fuller, 9 N. H. 536. 

The last proviso of this general principle cannot well be said to be ap- 
plicable to a corporation of the character of a benefit association limited 
to a small group. There is no statutory provision in the Commonwealth 
providing a procedure under which benefit corporations or their officers 
are of themselves to obtain, by specified action in the courts, receivership 
or authoritative orders for winding up their affairs. 

It is true that by G. L. (Ter. Ed.) c. 176, § 36, the Commissioner of 
Insurance is authorized, through the Attorney General, to seek receiver- 
ship and dissolution of such benefit corporations or societies when he is 
satisfied that certain conditions exist regarding them or their manage- 
ment, and one of these conditions is "whenever , . . any such society 
shall determine to discontinue business"; but inasmuch as this mode of 
procedure may be used only at the instance of the Commissioner of Insur- 
ance, the scope of the section cannot fairly be taken to exclude action by 
the corporation itself, of the kind heretofore discussed, since recourse to 
the courts under this section is not, by the terms thereof, open to it. 

Although such procedure by such a corporation cannot be itself de- 
scribed as illegal, yet its effect will be such as to enable you to invoke in 
the courts the statutory mode of dissolution by a receivership, by virtue 
of the power given you by said section 36 to act, if such a corporation 
"shall determine to discontinue business." 

If in your judgment or in that of the Attorney General the particular 
procedure adopted by such a corporation for winding up its affairs appears 
to be fair, reasonable, efficacious and to be agreed upon by all members 
and beneficiaries, it may well be doubted whether sound discretion would 
determine that the use of an information in the nature of quo warranto, 
under said section 36, was necessary for the protection of the interests of 
the public or of those connected with such a corporation. 

Such considerations should be borne in mind by you in relation to any 
specific instance. Lacking a complete knowledge of the factual situation, 
I express no opinion as to their precise application to the matter of the 
particular corporation referred to in your letter. 

In Delaney v. Ancient Order of Uriited Workmen, 244 Mass. 556, the 
Supreme Judicial Court has said of this section : — 

"It doubtless was designed to prevent hostile attacks upon an institu- 
tion in which large numbers of persons are interested, except through the 
instrumentality of a public officer, and to render impossible the harm which 
might come to a solvent and worthy beneficiary corporation insuring great 
numbers of people through ill-considered proceedings." 

It is also plain from the opinion in that case that both the Commis- 
sioner of Insurance and the Attorney General have discretion in deter- 
mining when a given state of facts requires their intervention. It is, of 
course, plain that the said section was also intended by the Legislature 
as an effective mode of control of improper conduct and management 
upon the part of such a corporation or its officers. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. . 37 

County Commissioners — Grade Crossings — Takings. 

Feb. 7, 1940. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sir:— You ask me, in effect, whether county commissioners 
are required to make the necessary takings to carry out the alteration of 
a crossmg under G. L. (Ter. Ed.) c, 159, § 59, as amended, in which they 
have decided alterations are necessary and have prescribed the manner 
and limits for the same. 

The duty does not rest upon the county commissioners, nor have they 
authority to make such takings. The duty of making such takings rests 
upon the respective parties to the matter; that is, the railroad company 
should take any land that is necessary for an increase in its location re- 
quired by the decision of the county commissioners; the town should 
make^a taking of land to increase the extent of the town way made neces- 
sary by such decision; and the Commonwealth should make a taking of 
land necessary for extension or widening of a State highway if such be 
necessary under the decision of the county commissioners. The county 
commissioners, m making their decision under said section 59, act in what 
may be called a quasi-judicial capacity, and after making such decision 
they have no power to take land. That duty rests upon the parties to 
the proceeding. 

*u^^i* ^? impossible to come to any agreement among the parties as to how 
the decision should be carried into effect and the necessary takings made 
by the parties respectively obligated to acquire the land in the manner 
set forth m G. L. (Ter. Ed.) c. 79, resort should then be had to a special 
commission to determine all such matters, under the provisions of sections 
61 and 62 of said chapter 159. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Prisoners — Females — Indentures — Two Sentences. 

Feb. 9, 1940. 

Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir:— You have asked my opinion relative to the apphcation 
of the provisions of G. L. (Ter. Ed.) c. 127, § 85, to the indenture of fe- 
male prisoners. Your letter reads: — 

''Your opinion concerning the apphcation of G. L. (Ter. Ed) c 127 
§ 85, IS respectfully requested. ' 

That section, in part, reads as follows: 'The commissioner may, with 
the consent of a woman serving a sentence in the reformatory for women 
contract to have her employed in domestic service for such term, not ex- 
ceeding her term of imprisonment and upon such conditions, as' he con- 
siders proper with reference to her welfare and reformation.' 

Can a woman serving a sentence in the Reformatory for Women, who 
has a warrant for an 'on and .after sentence' lodged against her, be inden- 
tured by the Commissioner of Correction on the sentence she is then 
serving, before the warrant has been served? May she be indentured for 
a period covering both sentences while confined on the first sentence'^" 



38 P.D. 12. 

It is to be noted that G. L. (Ter. Ed.) c. 279, §§8 and 8A, provide as 
follows : — 

"Section 8. A convict upon whom two or more sentences to imprison- 
ment are imposed may be fully committed upon all such sentences at the 
same time, and shall serve them in the order named in the mittimuses 
upon which he is committed; but when fine and imprisonment are named 
in one of the sentences the prisoner shall always be committed upon the 
term sentence first. 

Section 8A. For the purpose only of determining the time of the 
taking effect of a sentence which is ordered to take effect from and after 
the expiration of a previous sentence, such previous sentence shall be 
deemed to have expired when a prisoner serving such previous sentence 
shall have been released therefrom by parole or otherwise. Nothing in 
this section shall be construed to alter or control any provision of section 
one hundred and thirty-one or one hundred and forty-nine of chapter one 
hundred and twenty-seven." 

Reading section 85 of said chapter 127 together with the two last- 
quoted sections of chapter 279, it is plain that, since the prisoner who has 
received two sentences is "committed" upon both, even if one is a "from 
and after" sentence, so that her "term of imprisonment," as these last- 
quoted words are used in said section 85, includes the time under which 
she may be held on both sentences, an indenture may be made at any 
period of such term of her imprisonment. 

However, said section 8A would appear to provide that if, during the 
time such a prisoner was serving her original sentence, she was released 
to work under an indenture, at the moment when she was so released her 
original or previous sentence should be deemed to have expired and her 
second sentence to have begun ("such previous sentence shall be deemed 
to have expired when a prisoner serving such previous sentence shall have 
been released therefrom by parole or otherwise") (§ 8A). 

It has been said by one of my predecessors in office (V Op. Atty Gen. 
731, 732), in whose statement I concur, that — 

"To bind a female prisoner out to domestic service is in effect to per- 
mit her to be at liberty upon condition that she remain in that service. 
It is in effect a part of the parole system, and must rest upon the same 
considerations of public policy." 

Release under an indenture is of the same general character as release 
by parole, and is comprehended in the phrase "by parole or otherwise," 
as used in the last above-quoted portion of said section 85, and, accord- 
ingly, fixes the time from which the second sentence shall be deemed to 
begin running. It also follows, then, that the term of the indenture of 
the prisoner should not be made for a longer period than that for which 
she can be held upon the second sentence alone. 

The foregoing statements as to the applicable principles of law supply 
the answers to both your questions. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 39 

Insurance — Contracts — Warranties — Sale of Tires. 

Feb. 10, 1940. 
Hon. C. F. J. Harrington, Commissioner of Insurance. 

Dear Sir : — You have submitted to me three forms of agreements 
under which automobile tires are sold, which purport to be contracts of 
warranty, and have asked my opinion as to whether they are in reality 
contracts of insurance. 

G. L. (Ter. Ed.) c. 175, § 2, aptly defines a contract of insurance as 
follows : — 

''A contract of insurance is an agreement by which one party for a con- 
sideration promises to pay money or its equivalent, or to do an act valu- 
able to the insured, upon the destruction, loss or injury of something in 
which the other party has an interest." 

The contracts which you have laid before me are somewhat artificially 
drawn and employ many words which ordinarily are to be found in poli- 
cies of insurance. Nevertheless, I am of the opinion that each of them, 
read in its entirety, giving due weight to words employed in limitation of 
and exception to other words and phrases of more general application, is 
in substance a warranty by the, seller that the article of merchandise to 
which it relates is without defects in material or workmanship, so that it 
IS fit for the general purpose for which it is sold. This general purpose, in 
the case of a tire, obviously is use of the tire on a motor vehicle under 
ordinary conditions of wear and tear on the roads. Ordinary conditions 
of wear and tear on the roads are not limited to passage at all times over 
perfectly smooth roads, but include use on roads some of which are not 
always in the best possible condition, whose surface may offer points of 
contact which, although capable of resistance by tires without obvious 
or latent defects in material or workmanship, yet may destroy or damage 
those defective in material or workmanship. To warrant against damage 
to the tire "due to ordinary wear and tear" is merely another mode of 
stating an intention to warrant the absence of defects in material and work- 
manship when the possibility of damage by accidental means is excluded 
from the scope of the seller's agreement. The possibility of damage from 
nitentional destruction is clearly not included within the connotation of 
the words "wear and tear," nor is the meaning of such words altered when 
the term "injury" is used with them in a specific contractual phrase of 

wear, tear and injury," but in such a phrase as used in one of the con- 
tracts before me the word "injury" so employed connotes, as do the other 
two words, damage sustained by the tire while being used for the purpose 
for which it was sold (accidental and intentional injury thereto being ex- 
cepted from the scope of the agreement by its context). 

The name applied to any of the agreements before me does not fix its 
character; its true nature must be determined from an analysis of its 
terms. Nor does the employment therein of a word usually found in in- 
surance policies, and given, as used in them, a particular meaning, neces- 
sarily indicate that the contract is one of insurance when the context of 
the agreement as a whole shows that such word is used in it in a different 
though equally legitimate sense. 

All of the instant agreements are specifically limited as to the duration 
of their effectiveness. All, in mentioning certain kinds of damage to tires, 



40 P.D, 12. 

as to which the general contract relates, set forth such as might result to 
tires of inferior material or workmanship, yet which would not necessarily 
be occasioned in those of a superior quality of material or workmanship. 
Such kinds of damage to tires, set forth in detail in all the agreements, 
appear to be such as might fairly be included within the scope of ordinary 
wear and tear in the use for which the tires were intended. Moreover, 
two of these agreements, by specific wording, exclude from the possibility 
of inclusion as damage due to such wear and tear those forms of damage 
which are occasioned by "accidents," and the third, by a detailed state- 
ment, forms of damage to tires as to which the general contract provision 
relative to "wear, tear and injury" is not intended to apply, embracing 
virtually all such as might be due to accidental means, including colli- 
sions, and from its whole context appears to exclude from its sweep, by 
implication, all damage due to accidental causes. 

One of the contracts refers to "road hazards," in detailing the sources 
of damage to tires against which it guarantees, or in legal effect, more 
properly, warrants, its tires, but it explicitly excepts from such sources 
those occasioned by "accidents," making it plain that the word "haz- 
ards" as therein used is employed only in the sense of something which 
might affect a tire defective in material or workmanship rather than in the 
sense of a danger created by accident or the intervention of some cause 
foreign to the ordinary conditions of usual operation of tires. 

The terms of the instant contracts differ so materially from those con- 
sidered by the courts in State v. Western Auto Supply Co., 134 Ohio, 163, 
and other cases where agreements concerning merchandise have been said 
to be contracts of insurance, that such cases are not authorities for the 
proposition that the contracts which you have submitted to me are to be 
considered as contracts of insurance. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Workmen's Compensation — Public Employee — Salary. 

Feb. 28, 1940. 
Metropolitan District Water Supply Commission. 

Gentlemen: — You ask me whether or not your Commission may pay 
his full salary to an assistant civil engineer who has received injuries 
arising out of and in the course of his employment, during a period of 
total incapacity for which he is entitled to receive compensation at the 
rate of eighteen dollars a week, "in lieu of compensation." 

St. 1939, c. 435, entitled "An Act prohibiting the payment of wages or 
salaries to public employees in certain cases where compensation for total 
incapacity is payable under the Workmen's Compensation Law, so called," 
amended G. L. (Ter. Ed.) c. 152, by inserting therein a new section 69. 
This section makes provision for the payment of workmen's compensation 
to certain employees of the Commonwealth, and contains the following 
prohibition : — 

"No cash salary or wages shall be paid by the commonwealth ... to 
any person for any period for which weekly total incapacity compensation 
under this chapter is payable." 

If the fact be, as your letter apparently states it, that the employee in 
question is one entitled to receive weekly total incapacity compensation. 



RD. 12. 41 

it follows as a matter of law that, by reason of the aforesaid prohibition 
contained in said section 69, you may not pay him his salary in lieu of 
such compensation during any period in which he is entitled to receive 
such compensation. 

Ver}^ truly yours, 

Paul A. Dever, Attorney General. 

Signature of Officer by Facsimile Stamp. 

Feb. 29, 1940. 

Hon. George E. Murphy, Commissioner and Comptroller. 

Dear Sir: — I am in receipt of your letter relative to signatures on 
documents concerning administrative affairs, which are transmitted to 
your office by the heads of State departments, signed with "a rubber 
facsimile or signature stamp." 

Such a document signed by a head of a department with such a stamp 
bears, as a matter of law, the signature of the head of the department 
concerned as completely as if signed by him with a pen, and it is your 
duty to honor a document so signed with such a stamp, unless you have 
reason to believe that the signature has not been affixed by the officer 
whose name it bears or by his immediate direction. 

In Finnegan v. Lucy, 157 Mass. 439, 443, it was said :" Signing does 
not necessarily mean a written signature, as distinguished from a signa- 
ture by mark, by print, by stamp, or by the hand of another." 

There are certain instances wherein a specific provision of law indicates 
that the intent of a constitutional or statutory provision is that the re- 
quired signature must actually be made in handwriting or be made by the 
officer himself who is charged with the duty of executing the instrument 
in question, in which cases a signature must be in handwriting or by stamp 
actually affixed by the officer himself and not by another at his direction. 
Opinion of the Attorney General to the Secretary of the Commonwealth, 
July 21, 1903 (not published); V Op. Atty. Gen. 652; Finnegan v. Lucy, 
157 Mass. 439, 441. 

I assume, however, that the kind of document to which you refer in 
your letter, which would appear to relate to administrative matters, may 
be signed by the hand of another at the direction of the officer concerned, 
and so may with equal effect be stamped by the hand of another under 
such direction. 

The last paragraph of your letter reads : — 

"Will you therefore please advise me whether or not, in your opinion, 
such a signature by a person has the same force and effect as one written 
by hand by the same person. Also, will you please advise me whether or 
not, in your opinion, I can assume, when a document comes to me so 
signed, that the rubber facsimile stamp has either been affixed thereon by 
the person whose signatui-e it purports to be, or by some person whom he 
has properly designated." 

I answer the inquiry in your first question to the effect that, with rela- 
tion to the kind of documents to which your letter appears to refer, a sig- 
nature made by "a rubber facsimile or signature stamp" has the same 
force and effect as one written by hand. 

As to the question in the second sentence of said paragraph, I answer 



42 P.D. 12. 

that you must be satisfied that ''the rubber facsimile stamp has either been 
affixed thereon by the person whose signature it purports to be or by some 
person whom he has properly designated." What particular means you 
may take to reasonably satisfy yourself as to the indicated facts, whether 
by requiring some general statement in writing from the head of a depart- 
ment as to the manner and mode which he has adopted for the signing 
of the documents that he transmits, or by some other method, is a matter 
resting in your sound judgment. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Appropriations — Contracts for Work for the Department of Public Health 
and for the Department of Public Welfare. 

March 1, 1940. 

Hon. Russell A. Wood, Auditor of the Commonwealth. 

Dear Sir : — You have requested my opinion with reference to special 
appropriations for certain State institutions. 

The Department of Public Health consists of the Commissioner and 
the Public Health Council. G. L. (Ter. Ed.) c. 17, § 1; Commonwealth v. 
St. John, 261 Mass. 510, 521. 

The special appropriations for the various institutions to which you 
refer are made by the Legislature for the "service of the Department of 
Public Health," and the allocation of different sums for the particular 
purposes of the various institutions in the department are made by specific 
items under the general heading in the General Appropriation Act. Nor- 
mally, contracts for work covered by such items should be signed by the 
Commissioner. Nevertheless, it cannot be said that such a contract, made 
with the approval of the Commissioner and signed by a majority of the 
members of the department, of which, as I have pointed out, the Public 
Health Councillors are an integral part, is necessarily invalid. Certainly, 
if such a contract had the initial approval of the Commissioner, however 
expressed, and was accepted and ratified by him by acceptance of the 
work done thereunder and by requisitions for payments to be made there- 
for, it cannot be deemed to be void. Furthermore, if at the time of mak- 
ing such a contract there was no Commissioner in office, the signing of 
such a contract by a majority of the members of the Council, who then, 
as such, were the department, would result in the creation of a legal and 
binding obligation. 

As to contracts for work to be paid for from special appropriations for 
the institutions in the control of the trustees of the Massachusetts Train- 
ing Schools, which appropriations are made under the general heading, 
"Service of the Department of Public Welfare," and listed as separate 
items for each of such institutions, respectively, in the general appropria- 
tion bills of recent years, such contracts may be signed by the trustees 
of said schools, in view of the provisions of G. L. (Ter. Ed.) c. 120, § 4, 
but, especially in view of the language customarily employed in said items 
by the Legislature, such contracts, if made by the Commissioner of Pub- 
lic Welfare, with the approval of said trustees, however expressed, could 
not be said to be invalid. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. • 43 

Supervisor of Marine Fisheries — Permits to take Shellfish . 

March 5, 1940. 
Dr. Paul J. Jakmauh, Commissioner of Public Health. 

Dear Sir: — You have requested my opinion relative to your power 
to make rules under G. L. (Ter. Ed.) c. 130, § 71, as amended, specifically 
as to your department's "responsibility through rules and regulations in 
regard to the issuance of permits by the Division .of Marine Fisheries for 
taking shellfish for purification purposes." 

The power to grant and revoke permits for taking shellfish from an 
area determined by your department to be contaminated, under section 
71 of said chapter 130, is vested exclusively in the Supervisor of Marine 
Fisheries. The statute requires that he shall issue such permits only 
upon the express condition, described in said section 71 itself in some de- 
tail, that shellfish taken by virtue of such a permit shall be purified at a 
plant approved by the Commissioner of Public Health. 

Your department is given power by said section 71 to make rules and 
regulations to carry out the provisions of this section. The supervisor 
is by the provisions of said section 71 impliedly given power to attach 
to the permits which he issues conditions other than the statutory one 
referred to. It would appear from the context of the section as a whole 
that the authority to make rules and regulations "to carry out the pro- 
visions of this section" does not extend to the making of rules relative to 
the issuance of the permits themselves, which issuance, under conditions 
designated by him, is the prerogative of the supervisor, but is limited to 
the making of rules and regulations concerning the operation, use and 
maintenance of purification plants. 

These considerations as to the statutory law sufficiently advise j^ou 
upon the general subject of rule-making power under said section 71, as 
to which you have asked my opinion, and their application to any pro- 
posed specific rule or regulation which you may have before you will 
enable you to act con-ectly in accepting or rejecting the same. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Classified Positions ^- Labor Service — Employment of 
Indigent Persons by Municipalities. 

March 11, 1940. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have requested my opinion relative to the employ- 
ment by cities and towns, subject to the Civil Service Law, of persons on 
relief in positions in the classified official service. 

G. L. (Ter. Ed.) c. 117, § 2, provides: — 

"The board of public welfare shall have the care and oversight of all 
such poor and indigent persons so long as they remain at the charge of 
their respective towns, and shall see that they are suitably relieved, sup- 
ported and employed in the infirmarj'-, or in such other manner as the 
town directs, or otherwise at the discretion of the board. Said board 
may remove to the infirmary children suffering destitution from extreme 
neglect of dissolute or intemperate parents or guardians, except as other- 
wise provided." 



44 , P.D. 12. 

In the earlier statutes, from which this statute derives, the employment 
to be furnished such poor and indigent persons was described as "either 
in the workhouse or almshouse or in such other manner as the city or town 
directs or otherwise at the discretion of the officers." Pub. St., c. 84, § 2. 
It seems plain that the phrase "suitably relieved, supported and em- 
ployed," in the way expressed in the present statute, does not indicate 
a legislative intent that such employment shall be in positions of the 
character of those contained in the classification made under the statutes 
and rules governing the official service, which are positions calling for the 
exercise of skill and training, and which from their nature should be occu- 
pied by other than casual employees. In these respects such positions 
differ from those in the labor service. 

As you have stated in your letter, one of my predecessors in office, in 
an opinion given on May 13, 1931 (Attorney General's Report, 1931, 
p. 68), held that local authorities had the power, under section 2 of said 
chapter 117, to employ poor and indigent persons without compensation. 
In so far as that opinion is limited to a consideration of employment in 
positions such as may be within the scope of the labor service only, and 
not within the official service as it appears to be, I am in accord with it. 
G. L. (Ter. Ed.) cc. 117 and 31, should be so read together, if possible, as 
to form an harmonious whole; and I am of the opinion that such poor 
and indigent persons may not be employed in positions classified under 
the designation of official service. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Industrial Accidents — Medical Adviser — Civil Service — 

Appointment. 

March 13, 1940. 
Department of Industrial Accidents. 

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

"1. In selecting a person to fill the position of medical adviser (which 
position is authorized by G. L. [Ter. Ed.] c. 24, § 7, and the salary of which 
was subjected to classification by St. 1930, c. 258), is the Department of 
Industrial Accidents bound and regulated by the provisions of G. L. (Ter. 
Ed.) c. 31, as amended, and the rules and regulations of the Civil Service 
Commission adopted pursuant thereto? 

2. If the answer to the foregoing is in the affirmative, has the position 
of medical adviser, referred to above, been classified either by statute or 
regulation so as to oblige the Department of Industrial Accidents to select 
a person to fill it from the list of eligibles certified to it by the Civil Serv- 
ice Commission under date of February 21, 1940?" 

(1) The provisions of the applicable statute, G. L. (Ter. Ed.) c. 24, 
§ 7, as amended, are not of such a character as to indicate a legislative 
intent that the position of medical adviser in the Department of Indus- 
trial Accidents shall be exempted from the Civil Service Law. 

The position is not among those specifically exempted from such law 
by G. L. (Ter. Ed.) c. 31, § 5, as amended. 

'it has been repeatedly stated in opinions of the Attorneys General 
that appointive positions in the government of the Commonwealth are 



P.D. 12. 45 

presumptively under civil service, and that they must be held so to be 
unless they are, specifically or by necessary implication from the context 
of the statute creating them, exempted from such civil service. Attorney 
General's Report, 19-Sl, p. 56; IV Op. Atty. Gen. 619; VI Op. Atty. 
Gen. 152. 

Said section 7, as amended, reads: — 

"The department [the Department of Industrial Accidents] may ap- 
point a duly qualified physician as medical adviser and shall prescribe 
his duties." 

The fact that the appointee is required to be a "duly qualified physician" 
is immaterial upon the question of whether or not the position is one under 
the Civil Service Law. Likewise the fact that the incumbent's salary, 
since the amendment of section 7 by St. 1930, c. 258, is not stated therein 
but is left to determination under other statutory provisions is also im- 
material upon such question. 

According;ly, I answer your first question in the affirmative. 

(2) The said position of medical adviser is not specifically classified by 
statute with respect to its place within the classifications of the civil 
service. G. L. c. 31, § 3 (a), as amended, requires the Civil Service Com- 
mission to make rules and regulations, including pi'ovisions for the classi- 
fication of the positions and emplojmients to be filled. 

Rule 4 of the said Commission provides: — 

"1. All persons performing duties or rendering service in any of the 
offices and positions and classes of positions classified by statute, or in 
any of the following offices and positions and classes of positions, or perform- 
ing duties or rendering service similar to that of any such offices or positions 
and classes of positions under whatever designation . . . are subject to 
the Civil Service Law and Rules, and the selection of persons to fill such 
appointive offices or positions in the government of the Commonwealth 
and of the several cities thereof is subject to the Civil Service Law and 
Rules. 

The following classes, unless otherwise stated or otherwise exempted by 
statute apply to both the Commonwealth and the several cities thereof: — 

Class 32. School physicians, dentists, medical and physical inspec- 
tors, . . ." 

It cannot be said as a matter of law that the holder of the position of 
medical adviser in the Department of Industrial Accidents does not per- 
form duties or render services at least similar to those of a "school phy- 
sician" or "a medical and physical inspector," as the two quoted phrases 
are employed in said Rule 4. 

The action of the Civil Service Commission or its Director, which I am 
advised has been taken, in requiring said position of medical adviser to 
be filled under the provisions of the Civil Service Law and Rules is in 
effect a determination by them that upon all the factual considerations 
involved the said position of medical adviser is one which falls within the 
sweep of their "Rule 4, Class 32," and is at least a position in which the 
incumbent performs duties similar to those pertaining to some of the 
positions specifically mentioned under "Class 32." 

An administrative factual determination of this character as to the 
sweep of divisional rules is entitled to weight. The Attorney General 



46 P.D. 12. 

does not pass upon questions of fact. In an opinion given by me to a 
former Commissioner of Civil Service, on March 11, 1938 (not published), 
I held that the interpretation of the extent of a given class set up under 
said Rule 4, and the determination of whether a particular position fell 
within such a class, was "primarily one of factual determination pecu- 
liarly within the scope of your [the then Commissioner of Civil Service] 
authority." In said opinion I held that the operator of a prison truck 
could not as a matter of law be said to be outside the class of those per- 
sons mentioned in Class 18 of said Rule 4, namely, "drivers and chauffeurs 
of prison, ambulance and patrol wagons," in view of a determination by 
said Commissioner that such operator was embraced within the desig- 
nated positions of said Class 18. 

In view of the foregoing considerations, my answer to your second 
question is in the affirmative, assuming that the factual questions involved 
in the requirement or order of the Civil Service Commission have been 
correctly determined by them. 

There appears to be in relation to the instant matter a question arising 
between administrative departments as to their respective powers in 
regard to an appointment, and as to conflicting orders made with relation 
thereto upon what are apparently variant views as to material facts rela- 
tive to a certain office or position. This being so, a case would seem ta 
have arisen upon which an appeal will lie to the Governor and Council 
for a determination of the question involved, under the provisions of 
G. L. (Ter. Ed.) c. 30, § 5. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Power of the Director of the Division of Fisheries and Game to Stock Ponds, 

March 15, 1940. 
Hon. Raymond J. Kenney, Commissioner of Conservation. 

Dear Sir : — You have asked my opinion relative to the authority of 
the Director of the Division of Fisheries and Game under G. L. (Ter. 
Ed.) c. 131, § 40, as follows: — 

"I respectfully request your opinion as to whether or not the Director 
has the authority to regulate fishing in a great pond that he has caused 
to be stocked without a petition, as provided in said section 40, from the 
proper city or town officials, as the case may be." 

Said section 40 reads as follows : — 

"The director may cause any great pond, except in Dukes and Nan- 
tucket counties, to be stocked with such fish as he judges best suited to 
the waters thereof and, on petition of the aldermen of any city or the 
selectmen of any town where a great pond or a part thereof is situated, 
shall cause the pond to be so stocked; provided, that a public hearing 
upon the matter has previously been given within such city or town by 
the mayor and aldermen, or by the selectmen, notice of which hearing has 
been posted, at least ten days before the day of the hearing, in three or 
more public places, and published in a newspaper, if any, in such city or 
town. If a town at a meeting has instructed the selectmen to file such 
petition, such hearing need not be' given. When a great pond is not situ- 
ated wholly within a city or town, the director shall not proceed under 



P.D. 12. 47 

this section with respect to such pond unless a majority of the cities and 
towns bordering upon such pond have filed petitions as aforesaid. In 
every such instance the director shall thereupon prescribe, for a period 
not exceeding three years, and enforce, such reasonable regulations rela- 
tive to fishing in the pond and its tributaries, with such penalties, not 
exceeding twenty dollars for each offence, as he deems for the public inter- 
est; but this section shall not apply to ponds used as sources of public 
water suppl}'. The director may restock such ponds and may extend such 
reasonable regulations, for periods not exceeding three years each, and 
shall so restock and extend whenever he receives a petition therefor as 
herein provided." 

As has frequently been stated in opinions of the Attorneys General in 
various forms, great ponds, meaning by that term ponds of more than 
twenty acres, are the property of the Commonwealth, and fishing in them 
is free to the public except when otherwise provided by the General Court, 
which controls such ponds for the benefit of the general public's interests. 
Statutes limiting the right to fish are to be strictly construed. See II Op. 
Atty. Gen. 223. 

However strict a construction be applied to said section 40 in its present 
form, as above set forth, it is apparent that the Director has (1) discre- 
tionary power to stock great ponds, other than those particularly excepted 
by specific reference in the section, and (2) that he must stock such ponds 
(see II Op. Atty. Gen. 554) when petitioned so to do in the modes specified 
in the section, and that his right to make regulations for a limited period, 
relative to fishing, arises whenever he does stock a pond. The phrase 
used in the said section, "m every such instance the director shall thereupon 
prescribe . . . reasonable regulations," refers to each of the instances set 
forth in the said section in which the Director may or must exercise the 
authority given him to stock a pond with fish. Such instances include the 
first of those to which I have already referred, namely, the instance of the 
exercise by the Director of his discretionary authority to stock independ- 
ent of a petition, as well as the instance of his action under a petition by 
designated officers of a single municipality, or under petitions by a majority 
of municipalities when more than one borders a great pond. 

The authority of the said Director to stock at discretion was first added 
to his duty to stock upon petition, created by earlier enactments, in sec- 
tion 40 of the recodification contained in the new chapter 131 of the 
General Laws, inserted by St. 1930, c. 393. With the statement of this 
new authority there was also at the same time added to the phraseology 
of the older statutes upon the same subject, and embodied in said section 
40, the phrase, as now contained in the provisions of section 40 of G. L. 
(Ter. Ed.) c. 131, quoted above, — "/n every such instance the director 
shall thereupon prescribe . . . reasonable regulations relative to fishing 
in the pond." 

From the foregoing considerations it is plain that the legislative intent, 
as expressed in the latest form of said section 40, was to give power to the 
said Director to establish regulations relative to fishing in a great pond, 
for a period not exceeding three years, whenever he had in fact stocked such 
pond, cither as an act of discretion on his part or because of municipal 
petitions for stocking. 

Very truly yours, 

Paul A. Dever, Attorney General. 



48 P.D. 12. 

Competence of a Physician to make a Certificate of Insanity. 

March 15, 1940. 

Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You have requested me to render you an opinion 
upon the question raised in the following communication from the Board 
of Registration in Medicine : — 

"The Board of Registration in Medicine has voted to ask you to request 
from the Attorney General his opinion as to the legal requirements for 
competence of a physician to make a certificate of insanity under section 
51 of G. L. (Ter. Ed.) c. 123, further specified in section 53 of the same 
chapter. 

The question is raised in the case of an intern who has been licensed 
for two years as an intern under G. L. (Ter. Ed.) c. 112, § 9, and later for 
about eighteen months as a qualified physician under section 2 of said 
chapter 112. 

It has been the custom of the Board to interpret the words ' actual prac- 
tice of medicine,' found in lines 3 and 4 of section 53 of said chapter 123, as 
meaning practice under an unlimited license, whether in Massachusetts or 
some other State, and not the restricted practice permitted to an intern." 

Prior to the enactment in 1920 of the provisions now embodied in G. L. 
(Ter. Ed.) c. 112, § 9, relative to the registration of interns in State and 
certain other hospitals, it was said in an opinion of a former Attorney 
General, IV Op. Atty. Gen. 434, that a person may practice medicine as 
an employee in a State institution and that, if he did, he was as much 
required to be registered under the then applicable statute relative to 
physicians as was one practicing elsewhere. Thereafter, by St. 1920, 
c. 244, now G. L. (Ter. Ed.) c. 112, § 9, provision was made by the Legis- 
lature for a "limited registration" for interns and medical officers in such 
hospitals who had been instructed in certain medical schools for a desig- 
nated period. It was provided that such form of limited registration 
should entitle one "to practice medicine only in the hospital or other insti- 
tution designated on his certificate ..." 

With relation to the qualifications of physicians who sign certificates 
of insanity under G. L. (Ter. Ed.) c. 123, § 53, that section requires: — 

" No physician shall make a certificate of insanity . . . unless he makes 
oath that he is a graduate of a legally chartered medical school or college, 
that he has been in the actual practice of medicine for three years since 
his graduation and for three years last preceding the making of said oath, 
and that he is registered as a physician in accordance with chapter one 
hundred and twelve, nor unless his standing, character and professional 
knowledge of insanity are satisfactory to the judge." 

I am of the opinion that it cannot be said as a matter of law that one 
who has in fact practiced medicine, under the limited registration pro- 
vided for by said section 9, for two years, and as a qualified physician, 
under G. L. (Ter. Ed.) c. 112, § 2, for a further period of eighteen months, 
has not been "in the actual practice of medicine for three years since his 
graduation" (provided he did graduate from a medical school), within the 
meaning of the quoted words as used in said section 9. 

The word "actual," which was first inserted by St. 1895, c. 286, as 



P.D. 12. 49 

modifying the word "practice" in earlier statutes, from which section 53 
of said chapter 123 derives, often has the meaning of something real or 
bona fide, something existing in fact in opposition to construction or as 
opposed to potential, theoretical or nominal. Koshland v. Columbia Ins. 
Co., 237 Mass. 467, 475; Callan v. Mutual Life Ins. Co., 147 So. Rep. 110, 
111; American Ins. Co. v. County Board of Education, 181 S. E. Rep. 783, 
786; Wimmer v. Upper Saucoji Tp. School District, 176 Atl. Rep. 840. 

As used in the instant statute in connection with a physician's practice 
it appears to be employed as synonymous with the word more commonly 
used in relation to such a practice, namely, "active." The whole phrase, 
then, is applicable to a person who in fact has been habitually carrying on 
the healing art, as opposed to one who, though a physician by training 
and early experience, had retired from the real practice of his profession 
and occupied himself in some other pursuit or merely in the pleasures of 
leisure. 

So, in relation to a justice's qualifications, the statutory phrase "two 
years' actual practice of law" has been held to mean real and active per- 
formance of services in court or office. Bogg v. Wickizer, 50 Pac. Rep. 2d, 
1049. See Commonwealth v. Kimball, 299 Mass. 353; Marlborough v. 
Lynn, 275 Mass. 394, 397. Astor v. Merritt, 111 U. S. 202. 

Words used in statutes should be given a natural not a strained or highly 
artificial construction. The word "actual" cannot fairly be said to de- 
note practice of the art of medicine only by one who has received official 
sanction to practice it under the terms of said section 2, and to exclude 
from its scope one who has received oflficial sanction to practice it first 
under said section 9 and then under said section 2. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Examiners of Electricians — Power to appoint Employees. 

March 16, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam: — You have asked my opinion upon a question raised 
by the State Examiners of Electricians, a board in your division, relative 
to their authority to appoint and remove employees in addition to a sec- 
retary, as to which latter employee they are specifically granted power of 
appointment and removal by G. L. (Ter. Ed.) c. 13, § 32, as amended. 

Before the enactment of Gen. St. 1919, c. 350, the State Examiners of 
Electricians had been given specific authority to appoint and remove a 
clerk (Gen. St. 1915, c. 296, § 2). In contradistinction thereto no mention 
of authority to appoint and remove other employees occurs in the statutes, 
nor is there any implication of a further grant of such authority from the 
phrase in Gen. St. 1915, c. 296, § 2, to the effect that "The compensa- 
tion of the clerk and the travelling and other necessary expenses of the 
state examiners . . . shall ... be paid from the treasury of the com- 
monwealth." The particular mention of the compensation of a clerk ap- 
pears rather to exclude the idea of other regularly appointed compensable 
employees. The words "other necessary expenses of the state examiners" 
carry with them no connotation indicating a legislative intent to grant 
a general power of appointment and removal. 

By Gen. St. 1919, c. 350, § 63, the said State Examiners of Electricians 



50 P.D. 12. 

were placed in the newly created Department of Civil Service and Regis- 
tration, where they have since remained. They were particularly allo- 
cated to the newly established Division of Registration in said depart- 
ment, with power to "continue to exercise their functions as heretofore," 
but were given no new functions nor powers. Indeed, the performance 
of such functions and powers as they possessed was thereafter to be exer- 
cised under the supervision of the Director of said Division of Registra- 
tion, who was granted supervision of the whole division, and charged, 
among other things, with the duty "to supervise the work of the several 
boards," of which the Board of State Examiners of Electricians was one, 
in the division. 

St. 1935, c. 420, inserting a new section 32 in G. L. (Ter. Ed.) c. 13, 
gave to the said State Examiners specific power to appoint an executive 
secretary instead of a clerk, as formerly, but gave no specific power of 
general appointment of other employees to said Examiners. No implied 
grant of power to appoint and remove other employees can properly be 
said to lie in the last sentence of said new section 32 by virtue of the words: 
"The board may expend for the salaries of the appointive members and 
of the secretary and other employees and for necessary traveling and other 
expenses for themselves and their employees such sums as are annually 
appropriated therefor," since in 1935 the said Examiners were a part of 
the Division of Registration, whose director had the supervision thereof. 
The words "their employees," as used in said sentence, in view of the fore- 
going considerations and in view of the mode of legislative expression em- 
ployed in relation to the grant of the appointive power to other boards in 
said division, must be taken to indicate persons performing services for 
the Examiners, without implication as to their appointing and removing 
authority. 

The Legislature appears to have expressed itself plainly in this same 
chapter 13 whenever it intended to confer upon one of the various groups 
itself, which was a part of the Division of Registration or of the depart- 
ment, the power to appoint employees for itself, as, for example, with 
relation to the Board of Registration of Barbers, G. L. (Ter. Ed.) c. 13, 
§ 40, as amended, — "The board may appoint investigators"; the Board 
of Registration of Hairdressers, section 42 of said chapter 13, as amended, 
— "The board may appoint such agents and employees as the work of 
the board may require"; and the Division of Civil Service, section 3 of 
said chapter 13, as amended, — "The director of civil service may ap- 
point and remove . . . such officers and employees as the work . . . 
may require." 

Furthermore, by its manner of making appropriations for the said 
State Examiners and for the Director of the Division in recent years 
the Legislature has indicated a legislative interpretation of the applicable 
statutes similar to that which was expressed in the letter of February 8, 
1940, from the office of the Attorney General to the Director of Civil 
Service, referred to in your communication and which, in my opinion, 
is correct, namely, that there does not appear to bq any authority vested 
in the State Examiners of Electricians to appoint or remove employees. 

In the General Appropriation Act of 1939 the Legislature makes no 
appropriation to the service of the State Examiners of Electricians for 
employees. It does make an appropriation to the service of the Division 
of Registration covering employees in the division, positions not desig- 
nated, and this has been the uniform legislative practice since 1926. In 



P.D. 12. 51 

the absence of words specifically giving power to a board to appoint and 
remove in an applicable statute, whatever implied power so to do during 
a limited period by reason of an annual appropriation to such a board 
for the purpose of paying employees in a particular year may arise, no 
such implied power arises by implication when no appropriation is made 
to such a board but is specifically made to some other body. 

Very truly yours, 

Pai^l a. Dever, Attorney General. 

Chiropodists arid Podiatrists — Use of Narcotic Drugs. 

March 21, 1940. 

Mr. William E. Clark, District Supervisor, Bureau of Narcotics, United 
States Treasury Department. 

Dear Sir : — I am in receipt of your letter relative to registration, 
under the Harrison Narcotic Act, of chiropodists and podiatrists. I am 
of the opinion that the above-named practitioners are not entitled and 
qualified under the laws of the Commonwealth of Massachusetts to 
use narcotic drugs in the course of their professional practice. 

Inasmuch as these practitioners are not mentioned in the provisions 
of G. L. (Ter. Ed.) c. 94, § 198, among those persons who are specifically 
stated to be qualified to purchase narcotic drugs in this State, they do 
not acquire such status merely by the phrase contained in G. L. (Ter. 
Ed.) c. 112, as amended by St. 1937, c. 425, which refers to treatment by 
local anesthetics, and which you mentioned in your letter. 

Very truly yours, 

Paul A. Dever, Attorney General. 

First-aid Stations and Emergency Rooms — Use of Narcotic Drugs. 

March 21, 1940. 

Mr. William E. Clark, District Supervisor, Bureau of Narcotics, United 
States Treasury Department. 

Dear Sir : — I am in receipt of your letter relative to registration, 
under the Harrison Narcotic Act, of first-aid stations and emergency 
rooms handling narcotic preparations, and remedies, with your request 
that I express my opinion regarding your authority to acquire and dis- 
pense such preparations under the Massachusetts law. 

First-aid stations and emergency rooms as such are not authorized by 
the Massachusetts statutes to acquire and dispense narcotic prepara- 
tions, except such as are in a form exempted from the prohibitions of 
law by G. L. (Ter. Ed.) c. 94, §§ 197-213, as amended, which forms cor- 
respond in a general way to the exempted forms mentioned in section 6 
of the Harrison act. 

If such first-aid stations and emergency rooms are integral parts of 
hospitals, they will be entitled to acquire and dispense narcotic prepara- 
tions, and, even if they are not, a physician may himself, under our law, 
acquire and dispense such preparations in such stations and rooms. 

Very truly yours, 

Paul A. Dever, Attorney General. 



52 P.D. 12. 

Insurance — Group Life Policy — Beneficiary. 

March 29, 1940. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

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

"There has been submitted to us for approval by a life insurance com- 
pany legally doing business in this Commonwealth the following bene- 
ficiary clause: 

' Any sum becoming due on account of the death of an insured employee 
shall be payable to the beneficiary or beneficiaries designated by the em- 
ployee and filed at the home office of the company (subject to change in 
accordance with the provision to be stated in the policy); provided that 
if any designated beneficiary predeceases the employee the share which 
such beneficiary would have received if living shall be payable to the 
remaining designated beneficiary or beneficiaries, if any, who survive the 
employee, but if no designated beneficiary survives the employee, the 
insurance shall be payable to the employee's executors or administrators, 
provided, however, that the Company may, in such case, at its option, 
pay such amount to any one or more of the following surviving relatives 
of the employee: widow, widower, mother, father, child or children, 
brother or brothers, sister or sisters.' 

We ask you to advise us if the approval of this form would violate the 
provisions of G. L. (Ter. Ed.) c. 175, § 135." 

I am of the opinion that the above-quoted proposed clause, which I 
assume to be intended for use in a policy of group life insurance, does not 
violate the provisions of G. L. (Ter. Ed.) c. 175, § 135, nor any other pro- 
vision of the statutes, so that it cannot be said as a matter of law that 
your approval may not be given to it. 

Similar policy provisions relative to the election by an insurance com- 
pany to make payments to a given person, in the absence of a specifically 
designated beneficiary, under certain conditions, have been held to be 
proper for insertion by agreement in a contract of life insurance, and the 
same considerations leading to that conclusion would apply with equal 
force to a group policy of life insurance. Bradley v. Prudential Ins. Co. 
of America, 187 Mass. 226; Cataldo v. Woodside, 295 Mass. 586, and cases 
there cited. 

The provision contained in the above-quoted proposed clause permitting 
the insurer in a group life insurance policy, under certain conditions, to 
make the employee's executor or administrator the payee and to disburse 
the proceeds of the policy to him is not objectionable. Such provision 
does not violate the prohibition contained in G. L. (Ter. Ed.) c. 175, 
§ 135, to the effect that the proceeds of a group life insurance policy when 
not made payable to any beneficiary "shall not constitute a part of the 
estate of the employee for the payment of his debts." Money paid under 
such provision of a policy by the company to an executor or administrator 
could not, by reason of the foregoing prohibition of section 135, be paid 
out by such executor or administrator to discharge any of the deceased 
employee's debts chargeable against his estate, but the executor or ad- 
ministrator would be obligated to pay over the same, subject to any ap- 
propriate instructions of a probate court, directly to the legatees or heirs 
of the deceased, as the case might be. Such provision in the proposed 



P.D. 12. 53 

clause cannot therefore be said to be forbidden by the terms of said sec- 
tion 135. The insurer by payment to an executor or administrator would 
not as a matter of law be constituting or aiding in any unlawful constitut- 
ing of the proceeds of said policy as "a part of the estate of the employee 
for the payment of his debts." 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Employees — Suspension — Vacations. 

April 2, 1940. 

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

and Finance. 

Dear Sir : — In response to your request, I am of the opinion that all 
those employees of the Commonwealth referred to in G. L. (Ter. Ed.) 
c. 149, § 38, who during the past year were not permitted to take the 
annual vacation with pay, to which they were entitled under said section, 
by reason of a suspension, are entitled to pay covering such a vacation 
period. See Commissioner of Labor and Industries v. Downey, 290 Mass. 
432, with relation to a similar situation involving municipal employees. 

The same is equally true of other such employees to whom you also 
refer in similar case by reason of suspensions in earlier years. Unless 
there is an appropriation now available with relation to any particular 
past year, either by way of an unexpended balance or otherwise, payment 
cannot now be made for vacation pay allocated to any such past year, 
however. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Insurance — Fraternal Benefit Order — Death Fund. 

April 10, 1940. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — You have asked my opinion as to whether or not a cer- 
tain fraternal benefit order may properly adopt, by addition to its by- 
laws, provisions for a segregated class of members, and transfer to a 
reserve fund for such segregated class alone such portions of the reserve 
fund of the order itself as may be treated as the equitable share therein 
of those members who enter the segregated class. 

You have set forth in your communication the following facts and have 
laid before me a copy of the new proposed by-laws : — 

"Some time ago the department suggested to the officers of the order 
that they take prompt steps to correct the condition above referred to. 
Following this suggestion the order has employed competent actuaries, 
who suggested additions to the by-laws of the order, . . . providing for 
the establishment of a segregated class in accordance with the provisions 
of G. L. (Ter. Ed.) c. 176, § 40, and further providing that those members 
of the order who transfer to the segregated class shall be credited with an 
equitable share of the reserve funds now standing to the credit of certifi- 
cates presently issued by the order." 



54 P.D. 12. 

The adoption by the fraternal order of the amendment to section 4 (6) 
of article XVIII of its constitution, relative to a reserve transfer, would 
be, in my opinion, contrary to the provisions of G. L. (Ter. Ed.) c. 176, 
§ 13, and cannot properly be said to be authorized by G. L. (Ter. Ed.) 
c. 176, § 40. You may not, in my opinion, give your approval to such 
amended by-law. Authority to make such a transfer of reserve funds, as 
the proposed scheme to be effectuated by the amended by-law requires, 
has not been given to such an order by the Legislature, and your approval, 
even if given, would not, in the premises, empower the organization to 
make the same. 

Said amended by-law, with respect to "transferred members whose 
certificates are dated back" and "age (nearest birthday) at beginning of 
period of dating back" (§3), provides in said section 4: — 

"Any member admitted to the Order prior to July 1, 1940, shall be 
transferred to the American Experience Class upon the following condi- 
tions : 

(a) The equitable share of such member in the Reserve Fund of the 
Order, as of the date of transfer, shall be determined by the Actuary of the 
Order with the approval of the Commissioner of Insurance of Massachu- 
setts ; 

(6) Such share shall be transferred to the American Experience Fund 
and shall be distributed therein, in a manner to be determined by the 
Actuary of the Order with the approval of the Commissioner of Insurance 
of Massachusetts, so as to provide (1) a reserve to the credit of the member 
and (2) a contribution to a surplus to cover the possible excess mortahty 
of transferred members." 

G. L. (Ter. Ed.) c. 176, § 13, provides, in part: — 

"Any society may create, maintain, invest, disburse and apply a death 
fund, any part of which may in accordance with the by-laws of the so- 
ciety be designated and set apart as an emergency, a surplus or other 
similar fund, and a disability fund. Such funds shall be held, invested 
and disbursed for the use and benefit of the society, and no member or 
beneficiary shall have or acquire individual rights therein, or become 
entitled to any part thereof, except as provided in section sixteen, seven- 
teen or nineteen, ..." 

Said section 13 apparently prohibits the acquisition by a member of 
any individual interest in the reserve embraced in the death fund men- 
tioned therein, except in respect to the particular interests specifically 
described in sections 16 and 17 of said chapter 176. 

Section 40 of said chapter 176 provides for the creation of a separate or 
segregated class of members under certain conditions, but does not author- 
ize the transfer of a portion of the reserve or equitable part thereof con- 
currently with that of the transfer of a member to the separate or segre- 
gated class. Nor is there any other statutory provision to that effect. 

The absence of a statutory provision authorizing the transfer of the 
reserve concurrently with that of the member is significant. If such a 
transfer had been contemplated, it seems reasonable to assert that the 
Legislature would have in terms authorized it, as it did in the case of the 
transfer of a juvenile member to adult membership, under section 25 of 
said chapter 176. That provision, enacted by Gen. St. 1917, c. 128, was 
in force when the separate class provision was enacted by St. 1920, c. 217 
and so were the provisions of said section 13. 



P.B. 12. 55 

The provision in said section 40 that the mortuary contributions made 
by the separate class, which inckide those made by transferred members, 
shall be placed in a separate account and used only for the benefit of the 
members of the class evidently means, in the absence of a provision for a 
reserve transfer, that there is to be a separate mortuary or reserve fund 
for the separate class, to be created only by the mortuary contributions 
of the members thereof. The proposed amendment (art. XVIII, § 1) of 
the society's constitution, incidentally, provides for such a fund. 

The provision in said section 40 that a society may "abolish the segre- 
gation of members and funds" required thereunder when it is accumulat- 
ing and maintaining a reserve for all its members not in the separate class 
on the same basis as that prescribed for the separate class, and has pro- 
vided for mortuary contributions by all members calculated on said basis, 
seems clearly to imply that the funds of the general class and those of the 
separate class are not to be mingled or fused until the rates and the re- 
serves of all members are on the same basis. 

The proposed procedure incidental to the said amended by-law contem- 
plates the creation of an "equitable share" in the reserve fund, an inte- 
gral portion of the death fund, and the determination of its value. It 
w^ould seem to operate to give the member an "individual right" in, and 
result in his becoming "entitled to [a] part" of said fund, within the 
purview of those words as used in said section 13. The fact that he would 
receive no cash payment would obviously not preclude his acquiring an 
individual interest. The proposed transfer credit is in effect the same as 
if said value were paid to him in cash and he then joined the separate 
class and repaid it to the society, to be credited to his certificate in said 
class, 

A member who transfers to the separate class ceases, of course, to be a 
member of the general class. His rights in or in respect to the reserve on 
his certificate accumulated prior to his transfer, and included in the 
"death fund" described in said section 13, are the same as if he had with- 
drawn entirely from the society, or had withdrawn and then rejoined it 
as a member of the separate class. In either such case, he would not be 
entitled to receive payment of or credit for such reserve, in whole or in 
part, and it would have been released and inured to the benefit of the 
members generally, unless the society provided for a "withdrawal equity" 
in its constitution and by-laws under the authority conferred by said 
section 16, which I am advised it does not. 

Legislative authority for a transfer of reserves cannot properly be thought 
to arise by implication because the proposed scheme may result in a 
sounder financial basis for the society, nor because the transfer of reserves 
may result in a lower rate of assessment for transferring members as 
compared with that of new entrants into the segregated class, nor because 
omission to transfer reserves will render the legal solvency of the new 
class doubtful until it has acquired a sufficient number of members to 
create a sound basis for operation. Such considerations might be ad- 
duced in an argument before the General Court for the enactment of 
provisions authorizing such transfers. They would not necessarily be 
compelling in force, as the interests of the general class members whose cer- 
tificates are protected only by the general death fund would have to be 
given due weight. 

In New York, when the Legislature intended to permit the transfer of 
equitable portions of the reserve concurrently with transfer of members 



56 P.D. 12. 

from a general to a special class, it provided plainly and specifically by 
appropriate phraseology that beneficiary societies might adopt by-laws 
under which such transfers of reserves might lawfully be made (see N. Y. 
Con. Laws, c. 28, art. 7, § 242). 

The grant of a power to deal with mortuary and reserve funds in the 
suggested manner is of such a character as should, particularly in Massa- 
chusetts, call for specific phraseology, for its existence, from its very na- 
ture, is not such as to be implied from statutory provisions not directly 
relative thereto. 

Employment of any portion of a death fund in a manner not specifically 
authorized by statute is not regarded favorably by the courts of this 
Commonwealth merely because in a general way such user may be for the 
benefit of a fraternal order. Catholic Order of Foresters v. Commissioner 
of Insurance, 256 Mass. 502, 511-512. 

Very truly yours, 

Paul A. DEvkR, Attorney General. 

Insurance — Accident and Health Companies — Reduction of Stock. 

April 17, 1940. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

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

"A domestic accident and health company, which has qualified under 
section 48 of G. L. (Ter. Ed.) c. 175, by issuing $100,000 of common capi- 
tal stock, proposes to reduce that capital stock by $50,000, for the pur- 
pose of increasing its surplus in accordance with the provisions of section 
71 of said chapter 175. 

It is further proposed that the $50,000 reduction in common stock shall 
be superseded by the issuance of $50,000 in preferred stock. This would 
present a situation where $50,000 of common stock and $50,000 of pre- 
ferred stock would comprise the capital stock of the company. Since 
there is no reference in said chapter 175 to preferred stock as capital 
stock, we ask you to advise us if the situation outlined above constitutes 
a compHance with section 48 of said chapter 175 in so far as the $100,000 
capital stock qualifying requirement is concerned." 

The plan proposed in the outhne given in your letter is not a scheme 
for reduction of capital such as is provided for in G. L. (Ter. Ed.) c. 175, 
§ 71, nor for an increase in capital stock such as is governed by section 70 
of said chapter 175. 

As set forth in your letter, the plan does not fall within any mode of 
deahng with authorized and necessary capital stock provided for by the 
Legislature with relation to insurance companies subject to section 48 



of said chapter 175. 



Very truly yours, 

Paul A. Dever, Attorney General. 



Civil Service — Employees of the Department of Labor and Industries — 

Experts. 

April 23, 1940. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You ask my opinion upon two questions relative to G. L. 
(Ter. Ed.) c. 23, § 4, in the following paragraph: — 



t 



P.D. 12. 57 

"The commissioner may employ, for periods not exceeding ninety days, 
such experts as may be necessary to assist the department in the perform- 
ance of any duty imposed upon it by law, and such employment shall be 
exempt from chapter thirty-one." 

Your questions are : — 

"1. What would be a fair interpretation of the words in section 4 of 
G. L. (Ter. Ed.) c. 23, 'for periods not exceeding ninety days,' as to the 
duration of employment? 

2. What would be an 'expert' under the provisions of section 4?" 

The quoted words to which you refer are used in their ordinary sense 
and not with any unfamiliar or technical meaning. 

(1) The words as to which you inquire in your first question indicate 
a plain intent that the employees in question are not to be permanent 
members of the Commonwealth's service but are to be employed only 
for a period not exceeding ninety days at one time. There is no prohibi- 
tion upon the hiring of such persons for a second or other period subse- 
quent to the first, but each of such periods is to be a separate employment 
for a definite time, not exceeding ninety days. 

(2) It was plainly intended that the persons employed under the fore- 
going section should be particularly skilled in some one or more of the 
duties imposed upon the Department of Labor and Industries, and that 
during the brief period of their respective employments they should per- 
form such specialized work as to which they possessed expert knowledge 
or ability in assisting the department with relation thereto. It was not 
the intent of the statute, as it is to be gathered from the phraseology of 
said section 4, that such persons should perform the ordinary work inci- 
dent to regular or permanent positions of employment in the service, 
which in the usual course could be done by persons less highly skilled 
than such persons who were entitled to be called and were in fact em- 
ployed as "experts." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Division of Child (riiardianship — Custody of a Child from Another State. 

April 26, 1940. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir: — I am in receipt of your recent letter with copy of a com- 
munication to you from the Commissioner of Public Welfare of New 
Hampshire. 

I know of no reason which, as a matter of law, would prevent our State 
Department of Public Welfare, through its Division of Child Guardian- 
ship, from receiving back from New Hampshire a child previousl}^ com- 
mitted to its custody by a court, under G. L. (Ter. Ed.) c. 119, §§ 42-45, 
provided that it has not previously discharged or transferred such child 
out of its custody to some other bod}^ or been relieved therefrom by some 
order of court. 

Very truly yours, 

Paul A. Dever, Attorney General. 



58 P.D. 12. 

Narcotic Drugs — First-aid Stations — Exempt Preparations. 

April 26, 1940. 

Mr. William E. Clark, District Supervisor, Bureau of Narcotics, United 
States Treasury Department. 

Dear Sir : — I am in receipt of your recent letter with copy of a com- 
munication from H. J. Anslinger, Commissioner, with relation to the 
right of first-aid stations and emergency rooms as such to acquire and dis- 
pose of the so-called exempt narcotic preparations mentioned in G. L. 
(Ter. Ed.) c. 94, § 198, under the laws of Massachusetts. 

In my opinion, the view expressed in said communication, to the effect 
that although under the provisions of section 198 of said chapter 94 any 
retailer might sell the so-called exempt narcotic preparations, the terms 
of the pharmacist act, G. L. (Ter. Ed.) c. 112, §§ 30^0, limited "the 
sales of such exempt preparations to registered pharmacists," is not a 
correct interpretation of the laws of Massachusetts. 

The prohibition upon the sale of drugs and medicines mentioned in 
said chapter 112 except by registered pharmacists is not, by the terms of 
section 35 of said chapter 112, as amended, applicable to the sale at re- 
tail of patent and proprietary medicines, unless such medicines are for 
internal use and are "hypnotics," or ones which contain barbituric acid 
or its derivatives, or are prepared for hypodermic use. By the use of the 
phrase "hypnotics" it was not the intent of the statute to include medi- 
cines which are not of a habit-forming character. 

It follows that the acquisition and disposition of the so-called exempt 
preparations which are medicines are not required to be made only by 
registered pharmacists, and therefore may, as far as Massachusetts laws 
are concerned, be acquired and disposed of in emergency rooms or first- 
aid stations where there was no registered pharmacist or physician, in 
contradistinction to the nonexempted narcotics. 

G. L. (Ter. Ed.) c. 112, § 35, as most recently amended by St. 1937, 
c. 343, § 4, reads: — 

"Sections thirty and thirty-seven to forty-one, inclusive, of this chapter, 
sections twenty-nine to thirty G, inclusive, of chapter one hundred and 
thirty-eight and section two of chapter two hundred and seventy shall 
not apply to physicians who put up their own prescriptions or dispense 
medicines to their patients; nor to the sale of drugs, medicines, chemicals 
or poisons by wholesale dealers or manufacturing chemists to retail dealers ; 
nor to the manufacture of patent and proprietary medicines, nor to the sale 
of such medicines, other than the sale at retail of those intended for internal 
use which are hypnotics or which contain barbituric acid or its derivatives 
and other than the sale at retail of such medicines which are exclusively 
prepared for hypodermic use in the human system ; nor to the sale by mer- 
chants at retail of the following drugs and chemicals used in the arts, or 
as household remedies: alum, ammonia, bicarbonate of soda, borax, cam- 
phor, castor oil, chlorinated lime, citric acid, cod liver oil, copperas, cot- 
ton seed oil, cream of tartar, dyestuffs, Epsom salt, flaxseed, flaxseed 
meal, gelatine, ginger, Glauber's salt, glycerine, gum arabic, gum traga- 
canth, hops, hyposulphite of soda, licorice, lime water, Hnseed oil, Htharge, 
magnesia, olive oil, peroxide of hydrogen, petrolatum, phosphate of soda, 
rhubarb, Rochelle salt, rosin, sal ammoniac, salt-peter, senna, sfippery 



P.D. 12. 59 

elm bark, spices for seasoning, sugar of milk, sulphate of copper, sulphur, 
tartaric acid, turpentine, extract of witch hazel and zinc oxide; nor to 
the sale in the original packages of the following, if put up by registered 
pharmacists, manufacturers or wholesale dealers in conformity with law: 
flavoring essences or extracts, essence of Jamaica ginger, insecticides, rat 
exterminators, aromatic spirits of ammonia, spirits of camphor, sweet 
spirits of niter, syrup of rhubarb, tincture of arnica and tincture of rhu- 
barb; nor to the sale of the following poisons used in the arts, if properly 
labelled and recorded as provided by section two of chapter two hundred 
and seventy: muriatic acid, oxalic acid, nitric acid, sulphuric acid, ar- 
senic, cyanide of potassium, mercury, phosphorus and sulphate of zinc." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Insurance — Foreign Benefit Society — By-laws. 

April 29, 1940. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — You have informed me that a certain foreign benefit 
society transacting business on the lodge system has applied for admission 
to Massachusetts, and you state that several of its by-laws contain pro- 
visions not in conformity with our statutory requirements relative to the 
conduct of the affairs of such a society. 

You state that its by-laws contain a provision of the following tenor : — 

"If any benefit or provision permitted in these by-laws is prohibited 
by the statutes of the State or Commonwealth in which the member 
joins the society, the statutory laws shall prevail, or the said benefit or 
privilege shall be deemed to be amended to agree with the provisions of 
such statutory laws . . ." 

You ask me : — 

"Has the Commissioner of Insurance the authority to issue a license to 
a foreign fraternal benefit society transacting business on the lodge sys- 
tem which submits to the Insurance Department a set of by-laws some 
of whose provisions are not in conformity with statutory requirements, 
if such a code of by-laws has included therein a saving clause similar 
to the one above mentioned?" 

By-laws are intended for the regulation of an organization's own actions 
and the regulation of the rights and duties of its members among them- 
selves. Kirkpatrick v. The United Presbyterian Church of Keota, 63 Iowa, 
372; Flint v. Pierce, 99 Mass. 68; Commonwealth v. Turner, 1 Cush. 493. 

Unlike a resolution which is addressed properly to a special or an in- 
dividual case, Budd v. Multnomah St. Ry. Co., 15 Ore. 413, a by-law, in 
order to be valid, must operate generally and must be uniform in its 
operation among the members of an association of the instant type. 
Stewart v. Father Matthew Society, 41 Mich. 67. 

Under our statute, G. L. (Ter. Ed.) c. 176, § 41, a foreign society, in 
order to be entitled to a license to do business here, must be able to show 
that it has "the qualifications required by domestic societies on the lodge 
system incorporated under this chapter." The by-laws of a foreign society 
seeking admission must not, therefore, be such as to indicate that it does 
not possess such qualifications. 



60 P.D. 12. 

The instant by-laws which you have set forth in your letter show that 
the foreign society in question possesses other and different qualifications 
from those required of domestic societies. The effect of such by-laws is 
to make different the qualifications of this society from those required of 
a domestic one, not only as relating merely to a benefit or provision con- 
cerning an individual member alone but as to practices and regulations 
of benefits and provisions for the society and its membership, so inter- 
related to the whole structure of the organization and its mode of carrying 
on its business affecting each and all of its members that such differing 
qualifications cannot be made those required of domestic societies merely 
by the existence of the above-quoted provision of the by-laws, which seeks 
to establish different benefits and provisions for particular members of 
the society who might be residents of this or other States. 

Application of statutory provisions of Massachusetts to such particular 
members alone not only violates the principle of essential uniformity of 
by-law application among members, but by the very limitation of its 
application leaves the society as such lacking in the qualifications of do^ 
mestic societies. Moreover, such an application, if attempted so as to 
apply to individual members from different States, would create such a 
confusion of rules and administration as would necessarily fail to bring 
to such individuals the same advantages as would inure to them in a 
domestic society. 

In my opinion, the inclusion in the by-laws of the purported saving 
or excepting clause wholly fails to give to the foreign society in question, 
of its own force, the same qualifications required by said chapter 176 of 
similar domestic societies. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Municipal Officer — Head of a Fire Department of a Fire District. 

May 2, 1940. 
Hon. Eugene M. McSweeney, Commissioner of Public Safety. 

Dear Sir : — Replying to your recent letter, the head of the fire de- 
partment of a fire district is not an "officer of a city or town," and is not 
comprehended in the scope of the quoted words as they were employed 
by the Legislature in the provisions of G. L. (Ter. Ed.) c. 148, § lOA. 
See Peck's Case, 250 Mass. 261, 266; Prout v. Pittsfield, 154 Mass. 450. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Hairdressers — Registration — Practice of Occupation. 

May 3, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — I am in receipt from you of a letter from the Board 
of Registration of Hairdressers asking my opinion relative to the effect of 
St. 1935, c. 428, § 6, as follows: — 

"An apphcant filed a hairdresser's application with this Board on 
March 22, 1940, paying a fee of $10. She also furnished us with an affi- 
davit showing that she had been engaged in the practice of hairdressing 



P.D. 12. 61 

from 1927 to 1930. She took an examination on March 28, 1940, which 
she failed to pass. We have notified her of her failure. 

In reference to section 6 of St. 1935, c. 428, we would like to know if 
we are obliged to issue her an operator's license due to her failure in the 
hairdresser's examination, or does this refer only to persons who filed within 
six months after the law took effect?" 

Said section 6, by its terms, applies only to persons who were actually 
engaged in the occupation of hairdressing either at the date of the passage 
of said chapter 428 or at the date when said chapter 428 became fully 
effective. A person who at the date when the act took full effect was 
actually engaged in the practice of hairdressing, and tried to pass an 
examination for registration as a hairdresser, but failed, is entitled to 
registration as an operator. Such a person who paid the fee required for 
the hairdresser's examination is excused from paying a fee for registration 
as an operator, provided, always, that application to take the hairdresser's 
examination was made within six months of the date when said chapter 
428 became fully effective. This chapter became fully effective by its 
terms on January 1, 1936, or shortly thereafter. 

It appears from the facts stated in the Board's communication that the 
particular applicant for registration as a hairdresser had not been actu- 
ally engaged in the practice of that calling since 1930. She did not file an 
application for registration until March 22, 1940, which was certainly 
more than six months after the date when the said chapter became effec- 
tive. Upon these facts as stated in the Board's communication it appears 
plainly that the particular applicant, as to whose case inquiry is addressed, 
was not within the scope of the provisions of said section 6. It is clear 
that she is not entitled to receive an operator's registration without the 
payment of a fee therefor. 

A reading of said section 6, which follows, giving due weight to the 
words which I have underlined, makes the intent of the Legislature in 
enacting the same obvious : — 

"Any person who, from the date of the passage of this act up to the 
date of its taking full effect, has been engaged in this commonwealth in 
the actual practice of the occupation of hairdressing as defined in this 
act, shall, without any examination, be registered as a hairdresser by the 
board hereinbefore established, and any person who at the date when this 
act takes full effect is engaged in such actual practice, but was not en- 
gaged therein at the time of its passage, shall, upon his request, be given 
an examination by the board, and, upon passing such examination to 
the satisfaction of the board, shall be registered by it as a hairdresser, 
and any person who at the date when this act takes full effect is engaged in 
such practice and does not take or fails to pass such examination shall be 
registered as an operator, and any person who, at the date when this act 
takes full effect, is engaged in the occupation of manicuring and is duly 
licensed therefor, shall, without examination, be registered as a mani- 
curist ; provided, that such person makes application to the board for such 
registration, accompanied by such information as it may require, and by 
a fee of ten dollars in the case of a hairdresser, or five dollars in the case of 
an operator, or three dollars in the case of a manicurist, within six months 
after said date of taking full effect. A person who has applied under this 
section for registration as a hairdresser and paid the required fee, and has 
failed to pass the examination, shall not be required to pay any further fee 



62 P.D. 12. 

Jor original registration as an operator. Any person applying for registra- 
tion as an operator shall be credited by the board with the time spent in 
practice as a hairdresser prior to the date when this act takes full effect. 
The original shop registration fee for shops existing upon said date of 
taking full effect, shall be five dollars; provided, that in the case of a 
shop so existing and operated solely by a hairdresser owning the same, 
the original shop registration fee shall be two dollars." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Savings Bank Life Insurance — Custody of Certain Funds. 

May 13, 1940. 
Hon. Russell A. Wood, Auditor of the Commonwealth. 

Dear Sir : — You have asked my opinion as to whether the Division 
of Savings Bank Life Insurance has authority to have in its custody three 
funds to which you refer, namely: (1) a special expense fund, (2) a pre- 
mium account, and (3) a medical director's account. 

You have set forth a brief description of the origins, purposes and uses 
of such funds, respectively. There is nothing to indicate that any ques- 
tion relative to your right to audit such funds is raised, nor that any ob- 
jection has been made to your so doing at any time. An answer to your 
inquiry would not appear, therefore, to be necessary for the performance 
of any of your duties pertaining to auditing, presently required of you. 
Your duties relative to making a report must, from their nature, be con- 
cerned with matters of fact rather than law. The Attorney General does 
not pass upon questions of fact. 

For your guidance, however, let me state that, in my opinion, the cus- 
tody and appropriate handhng, allocation and disbursement of the said 
funds is within the scope of the general authority vested by the Legisla- 
ture in said Division and its officers concerned therewith. 

You have stated in your letter, with relation to the said funds, as 
follows : — 

"1. Special Expense Fund. — Apparently this fund or account was made 
up from assessments from the member banks and was used to defray 
certain expenses such as advertising, printing, personal services, office 
expenses, etc. From February 23, 1938, to August 1, 1939, the total dis- 
bursements from this fund were .137,078.22. The fund has been inactive 
since about January 27, 1939, and on August 1, 1939, there was only a 
small balance of $25.41 in it. 

2. Premium Account. — Apparently it is the practice of the Division to 
accept savings bank life insurance premiums on behalf of the member 
banks and in turn remit such premiums collected to the banks concerned. 

It is understood that the practice is not encouraged. From February 23, i 
1938, to August 1, 1939, the total amount of premium collections paid 
over to member banks was $122,259.73. I 

3. Medical Director's Account. — Under the present arrangement the 
medical director assigns examining physicians and receives from the mem- 
ber banks each month their proportionate share of the examining phy- 
sicians' fees, which in turn he pays over by check to the examining phy- 
sicians concerned. From February 23, 1938, to August 1, 1939, the total 
amount paid over to the examining physicians was $61,650." 

t 



P.D. 12. 63 

(1) I am advised that the said special expense fund was not made up 
of "assessments" but from voluntary payments by the savings banks, 
for a purpose, as suggested in your letter, the expense of which is neces- 
sarily borne by the banks, and that these payments were made in the 
same manner as the contributions of the banks to the State reimburse- 
ment fund, which are in proportion to their respective premium incomes. 

Such purpose appears to be in furtherance of the general intent of the 
Legislature with relation to the business of savings bank life insurance, 
and any work of the Division or its employees in connection therewith 
cannot be said as a matter of law to be outside the scope of their general 
authority. 

(2) I am advised that the practice with relation to the premium ac- 
count, to which you refer, has been substantially restricted, as far as re- 
lates to life insurance premiums, to State employees. The receipt and 
transmittal of such premiums from employees in private business by their 
employers is a common practice, encouraged by the Commonwealth 
through the direct employment by it for many years of field instructors, 
in the effort to encourage and increase this activity. To provide similar 
facihties for its own employees would seem to be an appropriate function 
of the Commonwealth. As regards other premiums, I am advised that 
the practice has been substantially limited to single premium annuities 
and joint and survivorship annuities. The premiums for these two types 
are calculated by the State Actuary to the exact date when paid, and a 
payment of premiums of any such types direct to the Division on behalf 
of a bank enables the State Actuary to compute the premium and fix the 
effective date of the contract at one and the same time, so that his duties 
are performed in the most efficient way possible, and the subsequent 
transmittal to the bank by the Division is merely incidental thereto. The 
State Actuary is specifically empowered to "perform the duties of insur- 
ance actuary for all the savings and insurance banks," and the ordinary 
actuarial routine work of the banks is to be performed by their employees^ 
"guided and assisted so far as may be necessary by the advice and in- 
struction of the state actuary." 

(3) The State medical director acts not only as supervising and advis- 
ing physician for the medical department of all the savings and insurance 
banks (G. L. [Ter. Ed.] c. 178, § 16), but also is specifically empowered 
to appoint such assistance as the "public business in his charge requires" 
(G. L. [Ter. Ed.] c. 26, § 12). The activities which you have described 
appear to be within the scope of the authority so vested in him, and any 
work of the Division in connection therewith or with relation to a fund 
created by such activities is merely incidental and necessary to make 
them effective. 

As I stated in a former opinion (Attorney General's Report, 1936, 
pp. 81, 82): "The efficient carrying on of savings bank life insurance 
is a well settled policy of this Commonwealth." To effectuate this policy 
the General Court has created the Division of Savings Bank Life Insur- 
ance and has established certain officers therein, by whose supervisory 
and advisory authority, accompanied by such action on the part of the 
Division and its employees as is incidentally necessary to make adequate 
the exercise of that authority, sound savings bank insurers, operating 
under proper methods with adequate facilities, may in the furtherance 
of the general public welfare provide life insurance and annuities under 
certain conditions for those desiring them. The General Court has also, 



64 ^ P.D. 12. 

to effectuate this policy, provided in the apphcable statutes for the dis- 
charge by such officers of the Commonwealth of certain services and 
duties for the insuring savings banks, which in the case of life insurance 
companies are performed by their own officers or employees; and it has 
displayed an appropriate intent in these statutes for a participation in 
the direct and immediate supervision over the carrying on of various 
details of the business of the individual insuring savings banks which 
it has not undertaken in relation to insurance companies. IV Op. Atty. 
Gen. 499, 500. 

In general, it may be said that the intent of the Legislature in the en- 
actment of G. L. (Ter. Ed.) c. 178, and of G. L. (Ter. Ed.) c. 26, with 
relation to the Division of Savings Bank Life Insurance and its officers, 
as it is to be gathered from a perusal of these statutes as a whole, was 
to grant to them an authority to act in a supervisory and advisory ca- 
pacity, in connection with the issuance of life insurance policies and the 
details of the business incident thereto on the part of the savings banks, 
of a wide and comprehensive character. This authority, which I have 
already considered specifically in this opinion in certain of its particular 
aspects, may not be construed so narrowly as to preclude from falling 
within its sweep the power to have custody for the described purposes 
of the said funds concerning which you have written. 

Very truly yours, 

Paul A. Dever, Attorney General. 

A uditor of the Commonwealth — Trustees of the Boston Elevated Raihvay 

Company — Accounts. 

May 13, 1940. 

Hon. Russell A. Wood, Auditor of the Commonwealth. 

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

"Will you please advise me as to whether or not I am required to audit 
the accounts of the Board of Trustees of the Boston Elevated Railway 
Company and the accounts of the Boston Elevated Railway Company." 

The provisions of the statute relative to the accounts which you are 
required to audit are contained in G. L. (Ter. Ed.) c. 11, § 12, and read: — 

"The department of the state auditor shall annually make a careful 
audit of the accounts of all departments, offices, commissions, institu- 
tions and activities of the Commonwealth, including those of the income 
tax division of the department of corporations and taxation. ..." 

It has been held in an opinion of a former Attorney General (Attornej^ 
General's Report, 1931, p. 94), in which I concur, that the accounts which 
are to be audited are only those of departments, offices, commissions, in- 
stitutions and activities of the Commonwealth as such, and that accounts 
of bodies of the general character of those mentioned in said section 12, 
which are not units or divisions of the Commonwealth's own administra- 
tive, or similar, services, are not to be audited under said section 12. 
See an opinion of the Attorney General to the Auditor of the Common- 
wealth, January 18, 1935 (not pubhshed); Attorney General's Report, 
1939, p. 117. 

The Boston Elevated Railway Company itself is not comprehended 
within the phrase already referred to in said section 12, as it is not itself 



P.D. 12. 



65 



an institution or activity of the Commonwealth but is a corporation 
which is at the present managed and operated by a board of trustees 
appointed by the Governor, with the advice and consent of the Council. 
It is publicly managed but not in public ownership. Boston v. Treasurer 
and Receiver (kneral, 237 Mass. 403, 412. 

Moreover, it is provided by Spec. St. 1918, c. 159, § 2, entitled "An 
Act to provide for the public operation of the Boston Elevated Railway 
Company," that "in the management and operation of the said company 
and of the properties owned, leased or operated by it, as authorized by 
this act, the trustees and their agents, servants and employees shall be 
deeined to be acting as agents of the company and not of the common- 
wealth, . . ." The "accounts of the Board of Trustees of the Boston 
Elevated Railway Company and the accounts of the Boston Elevated 
Railway Company," to which your letter refers, are, I assume, accounts 
having to do with the "management and operation" of said company. 
As to such matters, as I have pointed out. Spec. St. 1918, c. 159, prescribes 
that the trustees "shall be deemed to be acting as agents of the company 
and not of the commonwealth." 

I assume that your request is directed toward a possible inquiry by 
you into an alleged deficit of the Boston Elevated Railway Company 
which would be required to be made up by a payment from the Com- 
monwealth, ultimately to be assessed upon the cities and towns in which 
said railway operates. Even if your authority does not extend to making 
an audit of the accounts of the railway or its trustees with relation thereto, 
the Governor and Council are not precluded from employing other means 
to satisfy themselves with relation to the existence and amount of such 
deficiency, and so to safeguard the interests of the taxpayers before said 
payment is made. 

It follows that such accounts are not such as fall within the sweep of 
said section 12, and that you are not required to audit the same. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Emergency Finance Board — Employees. 

May 13, 1940. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

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

"The Emergency Finance Board, created by St. 1933, c. 49, is employ- 
mg an investigator and also a principal clerk. I have ruled that these 
positions are under civil service, and that the appointment of the persons 
named, without requisition on this office, is not in accordance with the 
Civil Service Law and Rules. The Emergency Finance Board questions 
this ruling ..." 

I am of the opinion that the two positions to which you refer are sub- 
ject to the Civil Service Law and Rules. 

The Emergency Finance Board, as created by St. 1933, c. 49, did not 
have a fixed date for the termination of its existence, estabhshed by the 
Legislature in the statute under which it came into being, although the 
statute was declared to be an emergency act, but provided, in section 1 : — 

"The existence of the board shall terminate and this act shall cease 
to be operative when, as determined by the governor, the purposes of its 



66 P-D- 12. 

establishment have been accomplished, but not before the payment in 
full to the commonwealth of all amounts borrowed by cities and towns 
under this act, including interest." 

The Board has continued in existence and is still operating. From time 
to time other duties than those mentioned in said chapter 49 have been 
laid upon the Board. It could not be said when the Board was created, 
nor has there ever been a time since when it could be said, that the Board 
would cease to exist by operation of law at any particular date. It can- 
not now be so said. 

I am of the opinion that, although chapter 49 was an emergency act 
and the title, duties and character of the Board were such that it could 
not be said to be a permanent agency of the Commonwealth nor that its 
existence was likely to last for a protracted period, nevertheless, since the 
Board became an integral part of the Commonwealth's service for an 
undefined term, in the absence of an expressed legislative intent that the 
Civil Service Law should not apply to those whom it might employ, the 
ordinary assumption is to be made with relation to the inclusion of pub- 
lic employees within the scope of the Civil Service Law, and its em- 
ployees are to be held to be subject to the provisions of such law both 
as to their appointment and as to its terms protective of employees 
rights against unreasonable removal. , j • r 

The work of a State board such as the instant one, the duration oi 
whose labors cannot fairly be said with accuracy at the time of their 
inception to be necessarily of such a temporary character or of such lim- 
ited extent as that of the usual "federal emergency unemployment relief 
project," does not of itself warrant an inference that the intent of the 
General Court was to deprive employees appointed by such a board of 
the protection of the Civil Service Law, or to deprive the public of the 
increased efficiency in the Commonwealth's service which such law was 
enacted to effectuate. 

The situation of persons working under emergency unemployment acts 
is not analogous to the employees of this State board, and prior opinions 
relative to the former's status in connection with the Civil Service Law 
have no application to the latter's relation to such law. 

Very truly yours, 

Paul A. Dever, Attorney General. 

County Training School — Unsettled Child — Support. 

May 13, 1940. 

Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir: — I am in receipt from you of the following letter: — 
"The Division of Child Guardianship has been billed by a city in the 
State for the support of a State ward at a county training school. The 
ward concerned is held under G. L. (Ter. Ed.) c. 119, § 22. The question 
has been raised as to whether this department or the city m which the 
child was boarded and from which he was sent to the training school is 
responsible for his support there, considering that G. L. (Ter. Ed.) c. 77, 
§ 1, provides that 'the town from which an habitual truant, absentee or 
school offender is committed to a county training school shall pay to the 
county maintaining it two dollars a week toward his support.' 



P.D. 12. 67 

May we have your iiitorpretation on the point of financial responsibiUty 
for this boy." 

G. L. (Ter. Ed.) c. 119, § 22, to which you refer, reads: — 

"The board of pubUc welfare of a town and the superintendent and 
board of trustees of the state infirmar}^ shall commit any indigent or 
neglected infant having no known settlement in the commonwealth to 
the custody of the department, which shall provide for him in a family or 
other suitable place, as it deems expedient for the interests of the child." 

After an unsettled child has been committed to the care of the Com- 
monwealth under the terms of the said section 22, the Commonwealth 
stands iii loco parentis or in the relation of guardian to such a child and is 
chargeable imder ordinary circumstances with his support and mainte- 
nance. 

If, in the administration of school affairs, a child of school age, by 
reason of anj- of the causes described in G. L. (Ter. Ed.) c. 77, is com- 
mitted to a county training school, the intent of the Legislature, as indi- 
cated in said chapter, is that the town from which the child was committed 
to such school shall be liable for his support, in an amount designated in 
section 1 of said chapter 77, while there. Such a liability rested upon the 
town, irrespective of the existence of parents or guardians, under earlier 
statutes from which said chapter 77 is derived, until 1898, when the Legis- 
lature, by St. 1898, c. 496, § 27 (now section 6 of said chapter 77), pro- 
vided that the committing court or magistrate ^' might" make an order 
relative to the payment, by the parents of such child or by the guardian 
out of the ward's estate, for his support while in said school. See V Op. 
Atty. Gen. 656. Probably such an order may not be made against the 
Commonwealth . 

However, it is plain from a reading of said chapter 77, in the light of 
the statutes from which it originated, that it was the intent of the Legis- 
lature to place the liability for support of a child committed to a county 
training school, in the statutory amount, upon the town from which he 
was committed, the town which ordinarily would be bound to furnish 
him with schooling, irrespective of where the duty to support had pre- 
viously rested, with the exception of the single instance provided for by 
said section 6. 

Consequently, I am of the opinion that, upon the facts stated in your 
letter, the Commonwealth, through its Division of Child Guardianship, 
is not liable to pay to or reimburse a city for the support at a county 
training school of an unsettled child committed to the custody of the 
Commonwealth under G. L. (Ter. Ed.) c. 119, § 22. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Licenses — Temporary Emergency Licenses for Sight-seeing Automobiles. 

May 15, 1940. 
Hon. Joseph F. Timilty, Police Commissioner for the City of Boston. 

Dear Sir: — You have asked my opinion, in effect, as to whether you 
may issue "temporary emergency licenses" to owners and drivers of 
sight-seeing automobiles. By the quoted words I assume you mean li- 
censes which shall expire before March first following the date of issue. 



68 P-D. 12. 

Inasmuch as your authority to issue such hcenses arises directly from 
provisions of the statutes, I am of the opinion that your inquiry is one of 
that hmited class, described in previous opinions of Attorneys General, as 
to which you are entitled to be advised by the Attorney General. 

Your duty and authority to Hcense sight-seeing automobiles are set 
forth in St. 1931, c. 399, as amended by St. 1933, c. 93. The applicable 
provisions of section 3 of said chapter 399 read : — 

"The police commissioner for the city of Boston shall have exclusive 
authority to license in said city sight-seeing automobiles and the persons 
operating them as drivers . . . Such licenses shall be granted for a term 
not exceeding one year, but whenever granted they shall expire annually 
on the first day of March ..." 

The statute then provides that at any time within a year after the ex- 
piration of such a license a new license may be issued upon payment of a 
prescribed fee, if the former license was not suspended or cancelled for 
cause. The fees for licenses to owners are to be not less than those estab- 
lished for licenses for hackney carriages nor more than certain designated 
maximum amounts based upon the carrying capacity of the automobiles. 

Hackney carriage licenses are annual licenses. St. 1930, c. 392, as 
amended by St. 1934, c. 280. 

The general intent of the Legislature in regard to licenses for sight- 
seeing automobiles and their drivers appears to have been to create a 
system of annual licenses, subject to affording opportunity for applicants 
applying after the first of March in any year to obtain licenses for the 
balance of the yearly period. No specific provision is made for the grant- 
ing of what, in the phraseology of your letter, are termed "temporary 
emergency licenses" which would terminate before the first of March 
next after their issuance, and no authority to grant such "temporary emer- 
gency licenses" can properly be said to be created by inference from any 
of the terms of the applicable statutes, in view of the expHcit language of 
said section 3 that the licenses granted under the statute "shall expire 
annually on the first day of March." 

Very truly yours, 

Paul A. Dever, Attorney General. 

Appropriation — Charles River Basin Improvements Fund. 

May 16, 1940. 

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

and Finance. 

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

"The Charles River Basin Improvements Fund was established by St. 
1929, c. 371, amended by St. 1931, c. 179. 

There were three sections to be completed under this project, — sections 
2, 7 and 8. 

Section 2 was financed by a contribution from the city of Boston and 
a gift from Mrs. James J. Storrow which, with accumulated interest, 
amounted to $1,129,110.90. See St. 1931, c. 179. 

Section 7 was to be financed entirely from the Storrow gift. See St. 
1931, c. 179, § 3. 

Section 8 was financed by contributions from Cambridge, Newton, 



P.D. 12. 69 

Watertovvn and the State Highway Fund and the balance assessed on the 
cities and towns in the MetropoHtan Parks District. See St. 1931, c. 179. 

The cost of section 2 is $492,895.86, an amount in excess of the city of 
Boston contribution. The amount expended on section 7 was $871,018.63, 
a total for the combined sections 2 and 7 of $1,363,414.49 out of an avail- 
able approjiriation of $1,529,110.90. There is still an unexpended balance 
of $165,696.41. 

Rulings are requested as follows: 

1. Is the unexpended balance of $165,696.41 to be considered as part of 
the gift fund or part of the money contributed by the city of Boston? 

2. Does item 718 (a) of St. 1938, c. 356, restrict the use of this unex- 
pended balance to the two-year period following the adoption of the act, 
which two-year period will expire on May 25, 1940?" 

(1) With relation to your first question, by St. 1931, c. 179, § 3, amend- 
ing St. 1929, c. 371, § 9, it was provided that the sum of $400,000, to be 
paid by the city of Boston under its terms, was to be used only for proj- 
ects springing from the terms of section 2 of said chapter 371, as amended 
by said St. 1931, c. 179, § 1; whereas, it was provided by said section 9, 
as amended, that the Storrow gift might be used for projects springing 
both from the terms of said section 2, as amended, and from the terms of 
section 7 of said St. 1929, c. 371. This being so, it would seem that the 
whole of the $400,000 paid by Boston for use on projects under said sec- 
tion 2 alone should be considered as being expended in its entirety on such 
projects under said section 2, and the excess expenditure over and above 
the $400,000 from Boston, needed to complete the project under said sec- 
tion 2, paid from the Storrow gift, which by the terms of the statute was 
to provide for work on projects under both said section 2 and section 7 as 
aforesaid. Since the Storrow gift was not exhausted by the payment of 
such excess on projects under said section 2, together with payments on 
projects under said section 7, what you have termed "the unexpended 
balance of $165,696.41" should properly be regarded and treated as part 
of the Storrow gift. 

Accordingly, I answer your first question to the effect that said balance 
is "to be considered as part of the gift fund," as the quoted words are 
employed in your question. 

(2) With relation to your second question, the gift of Mrs. Storrow for 
the Charles River Basin improvement was required by the Legislature 
to be dealt with, when received, for purposes of disbursement from the 
treasury, in the "same manner as revenue received for or on account 
of the metropohtan parks district." St. 1929, c. 371, § 9, as amended 
by St. 1931, c. 179, § 3. 

It was provided in the statutes in force in 1929 and 1931 that revenue 
received for or on account of the Metropolitan Parks District was to be 
paid into the treasury and there kept as a separate fund which might be 
expended by the Metropolitan District (yOmmission for both maintenance 
and improvement of the resc^rvations and boulevards under its care "in 
addition to any loans or appropriations." G. L. (Ter. Ed.) c. 92, § 48, as 
it stood prior to amendment in 1934. 

It is apparent that by the above-noted provisions of the statutes the 
Legislature had provided for the payment of money received on account 
of the Metropolitan Parks District by the Metropolitan District (Com- 
mission without the necessity of further specific legislative appropria- 
tion, and, by an extension of the same manner of dealing with moneys 



70 P.D. 12. 

in the treasury to those of the Storrow gift, has provided for the disburse- 
ment of the moneys of the Storrow gift by said Commission without the 
necessity for further specific appropriation. 

Such particular provisions by the Legislature take the moneys of the 
Storrow gift out from the general terms of G. L. (Ter. Ed.) c. 29, § 18, 
with regard to the necessity of a specific appropriation before payment 
therefrom, since, in the language of said section 18, it has been "otherwise 
provided" than is required by said section 18. This being so, the terms 
of paragraph (a) of item 718 of St. 1938, c. 356, are not to be regarded 
as appropriations within the meaning of G. L. (Ter. Ed.) c. 29, § 14, 
which section provides that certain appropriations shall not be available 
for more than two years after the date of an appropriation act. 

I answer your second question in the negative. 

Yours very truly, 

Paul A. Dever, Attorney General. 

Appropriation — Lapse after Two Years. 

May 16, 1940. 
Hon. GeorCxE E. Murphy, Commissioner and Comptroller. 

Dear Sir : — I have before me your letter relative to a payment at 
the present time, from an appropriation which became effective on May 
29, 1937, to the heirs or next of kin of Anne McCann. 

Resolves of 1937, chapter 39, authorized the payment, subject to appro- 
priation and under the direction of the Attornej^ General, from the treasury 
of the Commonwealth to the heirs or next of kin of Anne McCann, of 
such sums as the Attorney General found to have formerly been paid into 
the treasury from the estate of said McCann. 

It provided that the payment should not be made by the State Treas- 
urer until agreements, signed by all the persons entitled to payment, with 
relation to the amount to be paid for legal services had been filed. 

The appropriation was for a purpose other than ordinary maintenance, 
and as such was subject to the provisions of G. L. (Ter. Ed.) c. 29, § 14, 
which provide that such an appropriation shall not be available for more 
than two years after the date of the act which created it, except that pay- 
ments may be made thereafter to fulfil contracts and other obligations 
entered into within the period of two years. 

It appears that the facts as to the sums which had formerly been paid 
into the treasury from the estate of said McCann were found by the Attor- 
ney General, and that Anastasia King and Catherine Halford were deter- 
mined by the Attorney General to be the heirs at law of said McCann; 
and his findings in these respects were communicated to the Legislature 
before the final passage of the resolve. 

The appropriation which was the subject matter of said chapter 39 
was, in the language of G. L. (Ter. Ed.) c. 29, § 14, "an appropriation 
for" a "purpose other than ordinary maintenance." Said section 14 fur- 
ther provides that such an appropriation "shall not be available for more 
than two years after the date of the appropriation act, except that pay- 
ments may be made thereafter to fulfil contracts and other obligations 
entered into within the said two years." 

It cannot be said as a matter of law that any contract or obligation on 
the part of the Commonwealth was entered into within two years after 



P.D. 12. 71 

the date of the appropriation, which was the effective date of the resolve, 
namely May 29, 1937. Whatever delay there may have been on the part 
of the beneficiaries in providing and filing the agreements with relation 
to the payment for legal services, so that the time when the matter was 
finally laid before you was December 28, 1939, the fact of such delay, 
whether necessary or otherwise, does not act to extend the period of two 
years from the date of the appropriation. 

More than two years having now elapsed since the date of the appro- 
priation, in view of the considerations which I have set forth it is plain 
that the appropriation is not now available to pay these beneficiaries. 
Some further appropriation act of the Legislature will be necessary to 
provide the requisite funds. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Town — Acceptance of G. L. (Ter. Ed.) c. 31. 

May 20, 1940. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — I am in receipt of your letter relative to the acceptance 
by the town of Norwood of the Civil Service Law for the positions of all 
employees not already included by votes of the town thereunder. 

Upon the facts which you have laid before me I am of the opinion that 
the said town has accepted such law, and that the acceptance is applicable 
to all positions in the town, in addition to those already placed by vote 
under civil service, not otherwise exempted from the application of G. L. 
(Ter. Ed.) c. 31, including the labor service. 

The chief of the police department is specifically exempted from the 
application of G. L. (Ter. Ed.) c. 31, by St. 1914, c. 197, § 9 (i). The 
general manager, by implication from the provisions of sections 8 and 11 of 
said chapter 197, relative to the mode of his appointment and removal, 
may not be made subject to civil service by the vote in question. The 
superintendents or chiefs of departments, by implication from the provi- 
sions contained in the last sentence of said St. 1914, c. 197, § 9 (&), relative 
to their mode of removal, may not be made subject to civil service by the 
vote in question. Officers elected by the people are exempt from the pro- 
visions of the Civil Service Law by virtue of G. L. (Ter. Ed.) c. 31, § 5. 
With these exceptions, the votes would appear to be sufficient to place 
laborers and all other employees of the town under civil service. 

The terms of said St. 1914, c. 197, § 9, which in paragraph (6) empower 
the general manager "to appoint upon merit and fitness alone, and,' . . . 
to remove ... all subordinate officers and employees . . . , and to fix 
all salaries and wages of all subordinates and employees, subject to law," 
are not of such a character as to indicate a legislative intent that the Civil 
Service Law might not be made applicable to such subordinate officers 
and employees. There is nothing in said chapter 197 to indicate that 
laborers may not be included by votes such as those in question, nor does 
the power conferred on the general manager by St. 1914, c. 197, § 9 (o), 
with relation to the organization or discontinuance of divisions of the 
town's service, appear so inconsistent with its exercise under the Civil 
Service Law as to indicate a legislative intention that such votes as the 
ones in question cannot be effective. 

Said chapter 197, interpreted in the foregoing manner, does not, under 



72 P.D. 12. 

the terms of G. L. (Ter. Ed.) c. 31, §§ 47 and 50, to which you have di- 
rected my attention, prevent the votes in question from being effective, 
under said section 47, with relation to the positions of employees and 
laborers in said town, with the exception of those to which I have already 
referred. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Appropriation — Biennial Sessions — Deficiencies. 

May 24, 1940. 
Hon. George E. Murphy, Commissioner and Comptroller. 

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

"Toward the close of our last legislative session it was realized the 
Legislature was not going to meet in 1940. In consequence, consideration 
was given to providing for meeting emergencies which might arise during 
the 1940 fiscal year. 

Subsequent to this consideration, the supplementary budget, St. 1939, 
c. 518, was passed, and this contained an appropriation, item 106a, of 
$250,000 for 'emergency purposes arising during the fiscal year ending 
November thirtieth, nineteen hundred and forty.' 

Ordinarily, the deficits in a fiscal year in excess of those met from the 
extraordinary expense appropriation are handled by submitting deficiency 
appropriations to the Legislature, which, in turn, makes the money avail- 
able to pay the bills if it is felt that they are proper charges against the 
Commonwealth. I felt that this emergency appropriation was provided 
to take care of the things which would ordinarily be met by the Legislature, 
and that it could properly be used in 1940 to pay deficits incurred in 1939 
in various appropriations. 

The question now presents itself of determining the meaning and extent 
of the language used in the appropriation item. This, in turn, involves a 
further determination of what constitutes the emergency purposes, — 
whether it is the incurring of the obligation or rendering of a service, or 
whether the payment of the obligation is the emergency. 

Will you please advise me whether, in your opinion, the phrase 'emer- 
gency purposes arising during the fiscal year ending November thirtieth, 
nineteen hundred and forty ' means that the emergency is the payment of 
the obligation previously incurred or service rendered and that this fund 
can properly be used to pay deficits which were brought about by the 
incurring of bills in the 1939 fiscal year ending November 30, 1939, or 
whether the transfers from this fund are limited to the payment of bills 
for materials which were received or services which were rendered during 
the current 1940 fiscal year." 

In my opinion, the $250,000 appropriation carried by item 106a is not 
available for the payment of deficits incurred by offices and departments 
in the fiscal year 1939 in excess of their appropriations. 

Prior to Mass. Const. Amend. LXXII, providing for biennial sessions 
of the General Court and for a biennial budget, the General Laws con- 
tained the following provision (G. L. [Ter. Ed.] c. 29, § 26) : — 

"Expenses of offices and departments for compensation of officers, mem- 
bers and employees and for other purposes shall not exceed the appro- 



P.D. 12. 73 

priations made therefor by the general court. No obhgation incurred by 
any officer or servant of the commonwealth in excess of the appropriation 
for the office, department or institution which he represents shall impose 
any liability upon the commonwealth. If expenditures are made in excess 
of appropriations, the officers having charge of such expenditures shall 
annually, on or before December fifteenth report to the comptroller the 
details thereof with the reasons therefor, and he shall make a special re- 
port of the same to the general court early in its session." 

The rigor of the foregoing provision was somewhat alleviated by the 
provision in G. L. (Ter. Ed.) c. 6, § 8, as follows: — 

"An amount not exceeding one hundred thousand dollars shall be ap- 
propriated each year for carrying out sections twenty-five to thirty-three, 
inclusive, of chapter thirty-three [emergency use of the militia], for the 
entertainment of the president of the United States and other distinguished 
guests while visiting or passing through the commonwealth, for extraor- 
dinary expenses not otherwise provided for, which the governor and coun- 
cil may deem necessary, and for transfer, upon the recommendation of the 
comptroller, with the approval of the governor and council, to such appro- 
priations as have proved insufficient.^' 

It was the legislative practice, prior to the adoption of said amendment, 
to provide in two ways for expenditures made by offices and departments 
in excess of their appropriations: (1) by the inclusion in the annual 
appropriation bill of the sum of $100,000, available in whole or in part, 
''for transfer, upon the recommendation of the comptroller with the ap- 
proval of the governor and council, to such appropriations as have proved 
insufficient" {Opinions of the Justices, 294 Mass. 616, 622; 302 Mass. 
605) ; and (2) by the inclusion in the annual appropriation bill of amounts 
"for deficiencies in certain appropriations of previous years" in specific 
items. 

Since the biennial amendment, G. L. (Ter. Ed.) c. 29, § 26, has been 
amended by St. 1939, c. 502, § 12, so that the last sentence reads: — 

"If expenditures are made in excess of appropriations, the officer hav- 
ing charge of such expenditures shall, on or before December fifteenth 
in each even-numbered year, report to the comptroller the details thereof 
with the reasons therefor, and he shall make a special report of the same 
to the general court early in its next regular session." 

It would seem clear from this amendment, together with the retention, 
unamended, of G. L. (Ter. Ed.) c. 6, § 9, that the Legislature intended 
to preserve the same practice which had been pursued prior to the adop- 
tion of the biennial amendment, save only that deficiency appropriations 
should be made for two-year rather than one-year periods. That the 
1939 Legislature intended to preserve that practice would appear from 
the fact that in the general appropriation bill, St. 1939, c. 309, item 103, 
it made provision "for payment of extraordinary expenses and for trans- 
fers made to cover deficiencies, with the approval of the governor and 
council " for the fiscal year 1939, $80,000, and for the fiscal year 1940, 
$40,000, thus following the practice prescribed by section 9 of said chapter 
6, although reducing the amount of the appropriation. 

In the Supplemental Budget Act, St. 1939, c. 518, is contained item 
106a, to which your inquiry relates. This reads as follows: — 



74 P.D. 12. 

"For emergency purposes arising during the fiscal year ending Novem- 
ber thirtieth, nineteen hundred and forty, $250,000 00. 

The head of any department or of any agency of the commonwealth 
may make written application to the commission on administration and 
finance for additional funds to be paid from this item to meet expenses 
in such department or agency arising during the said year from an emer- 
gency. Upon receipt of such application, said commission shall investi- 
gate the need for such additional funds and shall forthwith advise the 
governor in writing of all pertinent facts relative thereto; and, at the 
same time, the commission shall recommend in writing whether, in its 
opinion, additional funds should be made available and, if so, in what 
amount. 

Upon receipt of such recommendation, the governor, with the advice 
and consent of the council, may direct the comptroller to transfer from 
this item to said department or agency such amount as the governor may 
find to be needed to meet such emergency, but no part of the amount so 
transferred shall be available for the salaries of new positions on a per- 
manent basis." 

This item is to be contrasted with item 103 of said chapter 309. The 
latter in terms makes provision "to cover deficiencies," and thus uses apt 
language to cover obligations incurred in excess of appropriations. Item 
106a of said chapter 518, on the other hand, makes no reference to de- 
ficiencies but refers to "expenses . . . arising during the said year from 
an emergency." This latter phrase cannot fairly be construed as syn- 
onymous with, or inclusive of, the former. It relates to an entirely dif- 
ferent subject matter. It would be distorting the natural meaning of its 
language, read in connection with item 103, to say that a deficiency in- 
curred in 1939 was an emergency arising in 1940. 

I am of the opinion, therefore, that the former practice of requiring 
legislative validation of excessive expenditures as prerequisite to the im- 
position of liability upon the Commonwealth, save as provided for under 
section 9 of said chapter 6, remains in force; that the emergency fund 
provided in St. 1939, c. 518, item 106a, cannot be used to pay deficits 
which were brought about by the incurring of bills in the fiscal year end- 
ing November 30, 1939; and that transfers from said fund are limited 
to meet expenses incurred during the fiscal year ending November 30, 
1940, for purposes determined by the Governor and Council to be of an 
emergency nature. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Lowell Textile Institute — Authority of the Trustees — Use of Playgrounds. 

May 29, 1940. 
Hon. Walter F. Downey, Commissioner of Education. 

Dear Sir: — I am in receipt of your letter relative to the authority 
of the trustees of the Lowell Textile Institute to permit the use of the 
playgrounds of such institution by private organizations for playing base- 
ball during the summer. 

The said board holds the real estate of said institute, which is that of 
the Commonwealth (Gen. St. 1918, c. 274), as trustees, and they have 
the duty of maintaining it for the purposes for which it is intended, 



P.D. 12. 75 

namely, those of a textile school (G. L. [Ter. Ed.] c. 74, §§ 47 and 48), 
subject to the supervising power of the Commissioner of Education. IV 
Op. Atty. Gen. 264. 

In my opinion, they have the authority, in the exercise of their sound 
discretion and judgment, subject to the said supervising power, to per- 
mit the use of the playgrounds of said institution by the public, provided 
that such use is so limited and regulated by them as not to interfere with 
its employment for the school's purposes and for the needs of the pupils 
of said institution. 

Nevertheless, since the grounds are the property of the Commonwealth, 
the trustees have no authority to permit a use to be made of them in such 
a manner as to inure to the peculiar benefit of any particular private 
person or group of persons or to the assistance of any private business. 
It follows that said trustees may not permit the use of such grounds for 
any game to which an admission fee is charged, thus excluding the gen- 
eral public from a full opportunity to resort to the grounds, nor may they 
grant exclusive privileges for extended periods to particular organizations 
which will result in the practical prevention of reasonable use of the 
playgrounds by the general public. 

It is in line with the general policy of the Commonwealth, as expressed 
in various enactments, to make school realty available to the public at 
suitable times for appropriate uses not inconsistent with its employment 
for school purposes. No statute deals specifically with such uses in con- 
nection with the said institution or other textile schools, but the general 
principles which I have stated are applicable to the authority of the 
trustees of said institution and other textile schools of a like nature, and 
should be exercised under the supervision of the Commissioner of Educa- 
tion, with due regard to such principles and with sound judgment and 
common sense in relation to particular matters concerning such uses, as 
they may arise. 

In "the case of injury to persons arising from the use of buildings or 
grounds" in connection with employment of the same by the general 
public for purposes of diversion, to which you refer in your letter, no lia- 
bility upon the part of the Commonwealth can be predicated. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Licenses — Fees for Overnight Camps. 

May 29, 1940. 
Dr. Paul J. Jakmauh, Commissioner of Public Health. 

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

"It has been the practice in some municipalities, prior to the passage of 
St. 1939, c. 416, to charge a fee for the licensing of recreational camps, 
overnight camps or cabins and trailer camps in excess of fifty cents. Sec- 
tion 32B of the said chapter 416 reads, in part, as follows: .'The fee for 
such license shall be fifty cents.' 

The Department of Public Health respectfull}^ requests your opinion 
as to whether or not, after St. 1939, c. 416, became effective, a city or 
town has the right to charge a fee in excess of fifty cents for licensing 
recreational camps, overnight camps or cabins and trailer camps." 



'6 P.D. 12. 

It is my opinion that St. 1939, c. 416, supersedes all by-laws and ordi- 
nances adopted by cities and towns providing for the payment of a license 
fee in excess of fifty cents. It was the obvious intention of the Legisla- 
ture to require a uniform fee of fifty cents throughout the Common- 
wealth. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Licenses — Local Boards of Health — Rules and Regulations — Overnight 

Camps. 

May 29, 1940. 

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

Dear Sir : — I am in receipt of your letter asking for mj^ opinion rela- 
tive to the issuance of rules and regulations by the boards of health of 
cities and towns, adopted under St. 1939, c. 416, entitled "An Act requir- 
ing the licensing of recreational camps, overnight camps or cabins and 
trailer camps." 

This chapter adds five new sections to G. L. (Ter. Ed.) c. 140. Sec- 
tion 32B provides: "The board of health of a city or town may adopt, 
and from time to time alter or amend, rules and regulations to enforce 
this section in such city or town." 

Section 32D provides: "Whoever conducts, controls, manages or oper- 
ates any camp or cabin licensed under section thirty-two B shall post in 
a conspicuous place near the entrance to every such camp or cabin a 
copy of the rules and regulations adopted thereunder, as most recently 
altered or amended." 

G. L. (Ter. Ed.) c. Ill, § 31, provides: "Boards of health may make 
reasonable health regulations. All regulations made by boards of health 
under this chapter shall be published once in a newspaper published in 
the town, and such publication shall be notice to all persons." 

Your first question is whether the rules and regulations adopted to en- 
force G. L. (Ter. Ed.) c. 140, § 32B (as inserted by St. 1939, c. 416), 
must be published in a newspaper in the same manner, as "reasonable 
health regulations" which local boards of health are authorized to make 
under G. L. (Ter. Ed.) c. Ill, § 31. 

In my opinion, no such publication is necessary. Inasmuch, however, 
as local boards of health, in issuing rules and regulations under said sec- 
tion 32B, are very apt to include therein "reasonable health regulations" 
which, strictly speaking, are not for the purpose of enforcing section 32B, 
although they well have some connection therewith, it is my opinion that 
as a matter of caution the boards of health ought to pubHsh such regula- 
tions in the same manner as provided in G. L. (Ter. Ed.) c. Ill, § 31. 

This will obviate the possibility of the question being raised as to whether 
certain rules and regulations are strictly within the authority granted by 
section 32B, provided they are "reasonable health regulations" which 
would be authorized under section 31 of said chapter 111. 

Your second question is whether several of the boards of health of the 
smaller towns, in which no local paper is published, who adopt the same 
set of regulations may publish one copy in a newspaper published in the 
county where the towns are located, reference being made to the various 
towns included, and containing at the end the names of the members of 
the board of health of each town. I am of opinion that there is no 



P.D. 12. 77 

objection to this method of pubHcation, under the provisions of G. L. 
(Ter. Ed.) c. 4, § 6, cl. Ninth. 

In answer to your third question, whether such rules and regulations 
require the approval of the Attorney General, my opinion is that they do 
not. 

Such rules and regulations are not by-laws, which require the approval 
of the Attorney General under G. L. (Ter. Ed.) c. 40, § 32. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Hairdressers — Instructors — Registration. 

May 31, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You have asked my opinion on the following ques- 
tion: — 

"Section 87BB of G. L. (Ter. Ed.) c. 112, inserted by St. 1935, c. 428, 
as amended by St. 1937, c. 385, provides: 'Any registered hairdresser who 
has had not less than three years practical experience as such, and who, 
after application accompanied by an examination fee of fifteen dollars for 
a first examination or ten dollars for a second or subsequent examination, 
passes an examination satisfactory to the board, may be registered by the 
board as an instructor, and thereafter may instruct in hairdressing in any 
registered school during the period of original registration, and thereafter, 
upon payment annually of a renewal fee of two dollars.' 

There has been a question raised as to whether a person must be doing 
hairdressing for three years or must be a registered hairdresser for three 
years. We would appreciate an opinion as to the interpretation of this 
section." 

In my opinion, an applicant for the position of instructor must be a 
registered hairdresser, but she need not have been registered for three 
years provided she has been a hairdresser for that length of time, with no 
less than three years' practical experience. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Contracts — Bids — Award — Readvertising . 

June 4, 1940. 

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

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

"The Commission, at its meeting on May 29, 1940, directed me to 
request an opinion from you on the following matter: 

On April 25, 1940, bids were received and opened for the reconstruction 
of a portion of Memorial Drive in Cambridge, and the Commission voted 
to award this contract to Edward M. Matz, Inc., the lowest bidder. 
Edward M. Matz, Inc., was then given notice of the action of the Com- 
mission awarding the contract to it, and was instructed to execute the 
contract and furnish a surety bond as a performance guarantee. These 



78 P.D. 12. 

instructions were given compliance by Edward M. Matz, Inc., within the 
time Hmit prescribed in the contract documents. 

A majority of the Commission now wish to readvertise this job on new 
specifications. The Commission desires to know if it can do so without 
Habihty for damages to Edward M. Matz, Inc." 

The contract documents in question, which you submit, disclose that 
the "Information for Bidders" contains provisions looking to the final 
execution of a formal contract between the Commonwealth and the bidder 
whose proposal should be accepted. This appears in the following lan- 
guage: "The party to whom the contract is awarded will be required to 
execute the contract in duplicate and furnish the security within ten days 
(not including Sundays) from the date of the mailing of a notice from the 
Commission to the bidder . . . that the contract is ready for signature." 
The "Proposal" provides that the bidder "proposes and agrees, if this 
proposal is accepted, that he will contract with the Metropolitan District 
Commission, in the form of the copy of the contract annexed." 

In the case of Edge Moor Bridge Wo7-ks v. County of Bristol, 170 Mass. 
528, 533, upon similar facts the court held that the vote awarding the 
contract "meant merely to say that the plaintiff's proposals were ac- 
cepted, subject to the preparation and execution of a formal contract," 
and that there was "nothing to indicate an intention to bind the county 
by a preliminary agreement that a formal contract should be executed in 
the future." 

In my opinion, the present situation is controlled by this decision. 

The court reached the same conclusion upon substantially similar facts 
in Wheaton Building & Lumber Co. v. Boston, 204 Mass. 218, and in Frank- 
lin A. Snow Co. V. Commonwealth, 303 Mass. 511, 516. In this latter case 
the court held that "it was not intended that either party should be under 
any contractual obligation until the contract and bond should be exe- 
cuted." 

I am therefore of the opinion that the Commission may readvertise the 
Memorial Drive construction job on new specifications without liability 
for damages to Edward M. Matz, Inc. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Massachusetts Nautical School — Acceptance of Vessel from the United States, 

June 12, 1940. 

Hon. Walter F. Downey, Commissioner of Education. 

Dear Sir : — With relation to the inquiry which you have addressed 
to me as to whether the Commissioners of the Massachusetts Nautical 
School may accept from the Federal government, through its Maritime 
Commission, a vessel to be used by said school, under the provisions of 
G. L. (Ter. Ed.) c. 74, §§49 and 50, I am of the opinion that the Com- 
missioners of said school have authority to accept such a vessel if and 
when Federal supervision of nautical schools is transferred by law, as I 
understand is contemplated, from the Secretary of the Navy to the Mari- 
time Commission. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 79 

Contracts — Subcontractors — General Contractor. 

June 12, 1940. 
Dr. Clifton T. Perkins, Commissioner of Mental Health. 

Dear Sir: — I am in receipt of your letter relative to bids under St. 
1939, c. 480, §44C (A). 

The applicable portion of the above statute, which you have quoted in 
your letter, does not make it mandatory upon a department to designate 
principal and minor subcontractors in the proposed form if it is your in- 
tent that the general contractor shall do all the work himself. If you do 
not so designate in the proposal, the bidders are not required to name 
subcontractors in their bids. This being so, you may properly award 
the contract to the low bidder in the case which you state in your letter, 
which, upon the facts as you have set them forth, is governed by the 
principles of law which I have indicated. 

It may well be doubted if, when a contract has been made as a result 
of such bids as have been considered above, the contractor could there- 
after employ any subcontractor on the work without a breach of the im- 
plied terms of the contract. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Forest Wardens — Term of Office — Towns. 

June 12, 1940. 
Hon. Raymond J. Kenney, Commissioner of Conservation. 

Dear Sir: — I am in receipt of your letter relative to forest wardens. 

Although the Legislature, after enacting St. 1920, c. 591, §§ 27 and 28, 
now G. L. (Ter. Ed.) c. 48, §§42 and 43, did not pass an actual amend- 
ment of section 8 of said chapter 48, in order that the provisions of said 
section 8 might have been worded so as not to present terms which appear 
conflicting with those of said sections 42 and 43, where it is attempted to 
deal with conditions such as you have outb'ned in your letter, neverthe- 
less, all three sections can be harmonized by giving due weight to said 
sections 42 and 43, which were enacted at a later period than that part 
of said section 8 which is not in harmony with them. 

Reading these sections of chapter 48 together, the intent of the Legis- 
lature as expressed in the law as a whole seems to be that a forest warden, 
appointed under the provisions of said section 8, has a term of oflfice 
which will last until the January following the appointment, unless action 
is taken before then by a town and its selectmen under said sections 42 
and 43, in which case the term of office expires when an appointment of 
some other person as chief of the town fire department is made. 

Very truly yours, 

Paul A. Dever, Attorney General. 



80 P.D. 12. 

Civil Service — Domicile of Applicant for Appointment. 

June 25, 1940. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir: — I am in receipt of your recent request for my opinion. 
The duty of determining whether an apphcant for appointment to a posi- 
tion under the Civil Service Law has been domiciled in the Commonwealth 
for the requisite period, described in Rule 5 of the Civil Service Rules, 
rests, in the first instance, upon the appropriate officers of the Division 
of Civil Service. Said Rule 5 provides: "... the Commissioner may 
waive the restriction of domicile in any case when in his opinion the needs 
of the public service may so require." 

The proper determination of such a question in any particular case 
necessarily involves findings as to existing facts, as well as the applica- 
tion of correct principles of law thereto. It is not a determination which 
you are required to make, nor is the question contained in the last para- 
graph of your letter such a one as is necessary for your guidance in con- 
nection with any duties which you are presently required to perform, and 
is consequently not one upon which the Attorney General may properly 
render an opinion to you. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Land Court — Recorder — Fees. 

June 25, 1940. 
Charles A. South worth, Esq., Recorder of the Land Court. 

Dear Sir : — Replying to your recent letter, as was said by one of my 
predecessors in office in a letter of August 6, 1923 (not published), to the 
then Recorder of the Land Court, it is not the duty of the Attorney 
General to advise clerks of court, to which class of officials a recorder 
belongs, as to the discharge of their duties, and such officers are not bound 
by his opinion. I Op. Atty. Gen. 594. 

However, for your information, let me say that I do not think that 
it was the intent of the Legislature in providing for a scale of entry fees 
in the Land Court, based on the assessed value of land sought to be regis- 
tered, to permit such fees to be based in any part upon property on such 
land which was not in its nature realty belonging to the would-be regis- 
trant. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Appellate Tax Board — Transfer of a Complaint — County Commissioners 

— Fees. 

June 27, 1940. 

Hon. John D. Wright, Chairman, Appellate Ta.x Board. 

Dear Sir : — In a recent letter you have asked my opinion as to 
whether the clerk of your Board "is authorized to exact a fee in case of 
the transfer of a complaint from the county commissioners to this Board." 

Such a transfer is made under the procedure established by G. L. (Ter. 



P.D. 12. 81 

Ed.) c. 59, § 64, as amended, by which a person aggrieved by the refusal 
of local assessors to abate? a tax may appeal to the country commissioners. 
This procedure is an alternative to that of an appeal to your Board, which 
a taxpayer may avail himself of under G. L. (Ter. Ed.) c. 58A, § 7, as 
amended. When the taxpa3^er proceeds under section 7 of said chapter 
58A, as amended, he, as "the party taking the appeal" to your Board, 
is required to pay an entry fee, which is specifically described therein. 
When the taxpayer proceeds under section 64 of said chapter 59, as 
amended, he takes his original appeal by complaint to the county commis- 
sioners or to the board authorized to hear and determine such complaints 
for the county where the property taxed lies, and files it with such county 
tribunal. If the appeal is transferred to your Board, the election to so 
transfer under the provisions of said section 64 is made, not by the tax- 
payer but bj^ assessors or a city solicitor or a town counsel, and upon in- 
structions from such officials the clerk of the county tribunal forwards 
the papers in the case to the clerk of your Board. The said section 64 
provides that "thenceforth" proceedings shall "be continued as provided 
in chapter fifty-eight A." The said section 64 itself makes no specific 
provision for the payment of an entry fee to the clerk of your Board, and 
I am of the opinion that none is provided by implication from the phrase 
"and proceedings with respect to such complaint shall thenceforth be 
continued as provided in chapter fifty-eight A." The word "thence- 
forth," as employed in the foregoing sentence, appears to relate to pro- 
cedural matters subsequent to the entry of the cause with the clerk of 
your Board. 

Statutory provisions with relation to fees are not to be construed loosely. 
If the Legislature had intended that an entry fee was to be paid to the 
clerk of your Board, upon a transfer at the election of municipal officers, 
it seems reasonable to assume that it would have stated that an entry 
fee similar to that mentioned in some particular section of said chapter 
58A should be paid, and that the party required to pay the same, whether 
the original complainant or the transferee, would have been described. 
No different considerations appear applicable to appeals made under 
G. L. (Ter. Ed.) c. 63, § 68A, to which you refer, which follow the pro- 
cedure with relation to complaints outlined in said section 64. 

I answer your question in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Zoning Laws — Building Inspection Laws. 

July 1, 1940. 
Miss Elisabeth M. Herlihy, Chairman, State Planning Board. 

Dear Madam : — I have your letter asking me for a statement as to the 
relative difference in the authority conferred by G. L. (Ter. Ed.) c. 143, 
§ 3, and G. L. (Ter. Ed.) c. 40, § 25, the former being the building inspec- 
tion law and the latter the zoning law. 

In a general way the ground covered by these two statutes is obvious. 

The building inspection law relates to the regulation of buildings for 
the prevention of fire and the preservation of life, health and morals. 
Under it a city or town can regulate the inspection, materials, construc- 
tion, alteration, repair, height, area, location and use of buildings and 
other structures. 



82 P.D. 12. 

The zoning law, on the other hand, has no such Hmitation. It provides 
for the division of a city or town into districts or zones "in such manner 
as will best promote the health, safety, convenience and welfare of the in- 
habitants, will lessen the danger from fire, will tend to improve or beautify 
the city or town, will harmonize with its natural development, ..." 

It is only under this statute that districts and zones may be provided 
and that considerations of the kind just enumerated may be taken into 
account. 

I may state, with reference to towns, that all their ordinances and by- 
laws have to be approved by the Attorney General as a condition to their 
validity, under G. L. (Ter. Ed.) c. 40, § 32. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Federal Aid — Grant — W. P. A. Project. 

July 3, 1940. 
Emergency Public Works Commission. 

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

"Under the provisions of St. 1939, c. 417, the Commonwealth may 
engage in any public works project approved as specified therein pro- 
vided there has been approved to aid in the financing of said project a 
grant or loan, or both, from Federal funds authorized by Congress during 
1939, 1940 and 1941 for public projects. 

The Commission respectfully asks your opinion if the term 'grant' as 
employed in said chapter 417 embraces Federal aid in the form of direct 
wage payments by a Federal agency to employees engaged on a public 
project, as is the practice with the Works Progress Administration 
(WPA)." 

I am of the opinion that the word "grant" as employed in St. 1939, 
c. 417, cannot fairly be said to embrace within its meaning as therein 
employed "Federal aid in the form of direct wage payments by a Federal 
agency to employees engaged on a public project, as is the practice with 
the Works Progress Administration (WPA)," as to which aid the quoted 
words used in your letter relate. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Federal Aid — Grant — Unexpended Balance. 

July 9, 1940. 

Emergency Public Works Commission. 

Gentlemen : — I am in receipt of your letter relative to certain Federal 
funds under the Federal Army Appropriation Act. 

I am of the opinion that the word "grant" as employed in St. 1939, 
c. 417, giving authority to your Commission to engage in public works 
projects, for which a "grant" or loan from Federal funds authorized by 
Congress has been approved, to aid the same, is of sufficient scope to 
embrace the apportionment from the Army Appropriation Act for the 
fiscal year 1941, under the facts with relation to the same as set forth in 
your letter. 



P.D. 12. 83 

According!}^, under the provisions of St. 1939, c. 417, you may employ 
the balance in your hands, to which you refer, to augment the Federal 
funds to which you have directed my attention and to which I have 
already referred, which are for the general purposes of the Common- 
wealth's defense. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commonwealth — Exchange of Bonds — Agreement. 

July 11, 1940. 
Hon. William E. Hurley, Treasurer and Receiver General. 

Dear Sir : — You have called my attention to the fact that under an 
agreement made in 1937 the Commonwealth took, in exchange for others, 
certain three per cent serial bonds from the Boston & Maine Railroad, of 
which the railroad company agreed to purchase $100,000 annually until 
maturity. You state that the railroad has declined to purchase $100,000 
of these bonds on July 1st of this year, when, under such old agreement, 
the purchase would have been due. You advise me that the declination 
of the railroad is based by them upon the assent of the Commonwealth, 
given on March 12, 1940, to a new plan of exchange. 

This new plan was set forth in a document dated December 15, 1939, 
by which bonds of the railroad then outstanding were to be exchanged by 
the holders for one-half their amount in cash or first mortgage four per 
cent bonds and the other half in new income mortgage four and one-half 
per cent bonds. 

The plan by its terms contemplated that bondholders agreeing to abide 
by it should assent to the same in writing, and in carrying out the same 
should exchange the bonds which they held of various issues for the new 
bonds to be issued, or part for cash and part for bonds. No particular 
date was set in the plan for the consummation of the transaction, and it is 
apparent that assent of a sufficient number of bondholders to make the 
plan effectual was an agreed prerequisite for its consummation. (Plan, 
p. 4.) It appears to have been an implied provision of the plan that pay- 
ments upon the principal of any bonds, whose exchange was assented to, 
was not to be made, irrespective of any former agreement, but that such 
exchange was, from the very nature of the plan, to be substituted therefor, 
but that interest accruing upon any of such bonds prior to consummation 
of the exchange and on the new bonds and cash delivered therefor should 
be adjusted as of the date when the plan becomes operative. (Plan, p. 2.) 

The Commonwealth duly gave its assent to the plan on March 12, 
1940, in writing, and delivered $9,100,000 bonds, including the three per 
cent bonds which are the subject of your inquiry, for the purpose of being 
stamped, under the terms of the plan, with a "legend" set forth therein 
(Plan, pp. 5-6) reading as follows: — 

"LEGEND TO BE STAMPED ON ASSENTING BONDS. 

By acceptance of this Bond the holder (from time to time) hereof agrees 
to be bound by the Boston and Maine Railroad Plan of Exchange dated 
December 15, 1939 (hereinafter called the Plan) and (1) agrees to accept 
in exchange for and payment of this Bond and all claims for unpaid in- 
terest hereon, a First Mortgage Bond, Series RR, 4% due 1960, of a prin- 



84 P.D. 12. 

cipal amount equal to 50% of the principal amount of this Bond (or, at 
the holder's election exercised within the time permitted by the Plan, 
cash to the amount provided in the Plan in lieu of such new First Mort- 
gage Bond or part of the principal amount thereof) and an Income Mort- 
gage Bond, Series A, 4^%, due 1970, of a principal amount equal to 50% 
of the principal amount of this Bond, together with adjustment for interest 
unpaid upon this Bond, all upon and subject to the terms and conditions 
provided in the Plan; (2) agrees to surrender this Bond to Old Colony- 
Trust Company, Trustee under the Indenture securing this Bond (or at 
an agency in the Borough of Manhattan, City and State of New York), 
for such exchange and payment upon request of the Railroad published at 
least once in one newspaper in the City of Boston, Massachusetts, and in 
one newspaper in The City of New York, New York, and mailed addressed 
to the bondholder who assented to the Plan as the holder of this Bond at 
his address filed with such assent; (3) authorizes the said Trustee as a 
step in the consummation of said Plan to waive any default under said 
Indenture and its consequences upon being satisfied that the default has 
been cured or that adequate provision to cure the default has been made; 
and (4) further agrees with the Railroad, such Trustee and every subse- 
quent holder hereof that this Bond shall remain negotiable for all purposes 
and to the same extent as prior to the imprinting of this legend, and that, 
to the extent permitted by law, title hereto shall be transferable in the 
same manner and with the same effect as in the case of a negotiable in- 
strument, and that the Railroad and the Trustee may treat the bearer 
hereof or, if this Bond is registered, the registered owner hereof, as the 
absolute owner hereof for all purposes, and shall not be affected by any 
notice to the contrary." 

The bonds were so stamped and returned to the Commonwealth. (Plan, 
p. 3.) 

On June 18, 1940, the Commonwealth duly executed, by its Treasurer 
and Receiver General, with the approval of the Governor and the Attorney 
General and the approval of the Governor and Council, in writing, a form 
of "election to take cash," which by its terms included all the railroad 
bonds held by the Commonwealth, including the three per cent mortgage 
bonds of which you inquire, which read as follows : — 

"The time for making this election expires at the close of business June 24, 1940. 

ELECTION TO TAKE CASH 

Boston and Maine Railroad 
Mortgage Bonds in the principal amount of $9,100,000. 

Series or Title Numbered 

50 Year Gold Bond 3% . 4 to 50 inch $100,000 each . . . $4,700,000 



NN 3% . . . 

All these bonds registered 
^ The Commonwealth of 

Massachusetts' . 



4 to 12 inch $200,000 each Jan. 1, 1941, 

to Jan. 1, 1949 1,800,000 

^ 13 in amt. of 2,600,000 



Due July 1, 1949 .... $9,.100,000 



P.D. 12. 85 

To: Boston and Maine Railroad, 
150 Causeway Street, 

Boston, Massachusetts. 

Attention W. S. Trowbridge, 

Vice President. 
Dear Sirs: 

The undersigned owner of the Bonds listed abo\'e, having filed with the Rail- 
road with respect to said Bonds an agreement accepting the terms of its plan of 
Exchange dated December 15, 1939, as amended, hereby elects, with respect to 
said Bonds, to receive cash in lieu of new First Mortgage Bonds, Series RR, 4%, 
due 1960, as provided in the Plan and subject to all its terms and conditions. 

William E. Hurley, 

Treasurer and Receiver General 

of the Commonwealth of 

Massachusetts. 

227 State House, 
June 11, 1940, Boston, Massachusetts. 

Approved June 18, 1940 

Paul A. Dever, 

Attorney General 

Leverett Saltonstall. 



Supplementing the action of the Governor and Council under date of March 
13, 1940, it was voted to approve the action of His Excellency the Governor, the 
Attorney General and Treasurer and Receiver General to take the maximum 
amount of cash provided under the within form. 
In Council adopted June 19, 1940. 

(Signed) William L. Reed, 

Executive Secretary." 

You further advise me that the plan agreed to by the assenting bond- 
holders has not been abandoned but that the railroad now expects to con- 
summate the plan by the contemplated exchange on July 29th. 

In consideration of all the foregoing facts it would appear that the 
Commonwealth is not now entitled to demand payment of .$100,000 on 
the principal of its three per cent bonds whose exchange with others it 
has previously agreed to for cash and new bonds. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Dental Hygienist — Dental Practice — School. 

July 11, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — I am in receipt from you of a request for an opinion 
from the Board of Dental Examiners, which reads : — 

"Will you please obtain an opinion from the Attorney General as to 
the law in regard to a dental hygienist examining teeth of school children 
and notifying their parents as to the condition in which the teeth are 
found." 



86 P.D. 12. 

"Dental hygiene" is defined by G. L. (Ter. Ed.) c. 112, § 51, to be: — 

"... the cleaning of teeth under the direction of any registered dentist 
of the commonwealth, subject to such rules and regulations as may be 
adopted by the board." 

"Practicing dentistry" is defined by section 50 of said chapter 112, as 
amended, as follows: — 

"Any person who owns or carries on a dental practice or business, or 
who, by himself, his servants or agents, or by contract with others, takes 
any impression of the human teeth or jaws, or performs any operation or 
makes examination, with the intention of performing or causing to be 
performed any operation on the human teeth or jaws, or who describes 
himself by the word 'dentist' or other like word, or the letters 'D.D.S.' 
or other like letters, or other like title in connection with his name, or 
who advertises by sign, card, circular, pamphlet or newspaper, or other- 
wise indicates that he by contract with others, or by himself, his servants 
or agents, will take any impression of the human teeth or jaws or perform 
any operation or make examination, with the intention of performing 
or causing to be performed any operation on the human teeth or jaws, 
shall be deemed to be practicing dentistry within the meaning of sections 
forty-three to fifty-three, inclusive, and section sixty-five." 

A "dental hygienist" in a school, carrying on her calling under the 
direction of a registered dentist, who does not purport to make diagnoses 
or give directions as to specific treatment for teeth or as to specific dentists 
to be consulted, to the parents of school children, cannot be said to be 
violating any of the provisions of said sections 50 and 51 or of section 52 A 
of said chapter 112, or of any other provision relating to dentistry, if she 
confines herself merely to notifying parents of such school children as 
need dental treatment of the fact of such need. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Advisory Board of Pardons — Parole Board. 

July 11, 1940. 
Hon. Ralph W. Rob art. Chairman, Parole Board. 

Dear Sir: — You have asked my opinion "as to what constitutes the 
Advisory Board of Pardons in all cases." 

The Advisory Board of Pardons was established by G. L. (Ter. Ed.) 
c 127, § 154. That section provides, as amended by St. 1939, c. 451, 
§52:- 

"The parole board, acting as the advisory board of pardons, shall con- 
sider carefully and thoroughly the merits of all petitions for pardon or 
commutation of sentence referred to it by the governor, and it shall make 
to him, without publicity, a written report containing its conclusions and 
recommendations. No such report shall be made without the concur- 
rence of a majority of its members. ..." 

Said chapter 451 changed the words "the board of parole," as it pre- 
viously appeared in section 154, to the words "the parole board," so as 
to make the name of the Board correspond with that given it by the amend- 
ment to G. L. (Ter. Ed.) c. 27, § 5, enacted by St. 1937, c. 399. Said sec- 
tion 5 as so amended reads : — 



P.D. 12. 87 

"There shall be in the department a parole board, consisting of five 
members, two of whom shall be women. Upon the expiration of the term 
of office of a member, his or her successor shall be appointed by the gov- 
ernor, with the advice and consent of the council, for five years. The 
governor shall designate one of the men members as chairman, and said 
chairman shall receive a salary of fifty-five hundred dollars. The other 
men members of the board shall each receive a salary of forty-five hundred 
dollars, and the women members of the board shall each receive a salary 
of twenty-two hundred and fifty dollars. All the members of the board 
shall constitute the parole board having jurisdiction of parole matters 
relating to women, and only the men members of the board shall consti- 
tute the parole board having jurisdiction over parole matters relating to 
men. With the approval of the commissioner, said board may expend 
annuall}^ from the appropriation for contingent and other expenses of the 
department a sum not exceeding two hundred dollars for examination by 
physicians of prisoners whose cases come before said board for action." 

Upon familiar principles of statutory construction said section 154 of 
chapter 127, as amended, is to be read with the earlier amendment of 
chapter 27, above set forth, so as to form an harmonious whole. As so 
read, it appears that the legislative intent was not to alter the provisions 
of said section 5 so that the composition of the Parole Board when act- 
ing as "the advisory board of pardons" should be other or different than 
when serving as the Parole Board. It follows, then, that all the members 
of the Parole Board act as the Advisory Board of Pardons when consid- 
ering petitions for pardon or commutation of sentence of women, referred 
to it by the Governor, and that only the men members of the Parole 
Board act as the "advisory board of pardons" when considering such 
petitions relating to men. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Employees — Organized Militia — Absence with Pay. 

July 22, 1940. 

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

and Finance. 

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

"I have received an inquiry from the Commissioner of Public Health 
requesting a ruling as to the legality of granting employees of the de- 
partment who are members of the organized militia of the State their 
regular remuneration for the proposed annual tour of duty, which will 
probably exceed the fifteen days provided for bv G. L. (Ter. Ed.) c. 33, 
§67. 

Anticipating a reply from you that the language of this section is 
capable of only one interpretation, namely, that members of the organized 
militia cannot receive compensation in excess of fifteen days' service on 
the annual tour of duty, I am also inquiring if the Governor, by executive 
order, can give permission to members of the National Guard to absent 
themselves from service with full pay for such period as they may be re- 
quired to serve in an annual tour of duty in excess of fifteen days." 

G. L. (Ter. Ed.) c. 33, § 67, mentioned in your letter, was superseded 



88 P.D. 12. 

by section 54 of the new Militia Act (St. 1939, c. 425), which inserted a 
new chapter 33 in said General Laws. 

On November 6, 1939, I rendered an opinion to the Adjutant General 
which covers the general subject matter of your letter. Attorney General's 
Report, 1939, p. 124. 

It follows from that opinion that if the Governor, as Commander-in- 
Chief, orders the organized militia or any part thereof, by virtue of au- 
thority vested in him by said section 11 or 105 of St. 1939, c. 425, to per- 
form duty by way of training with the organized reserve of the United 
States Army, or otherwise, for a period longer than fifteen days, the mem- 
bers of such part of the militia as are so ordered who are employees of 
the Commonwealth are entitled by the terms of said section 54 to full 
pay during such longer period of service. I assume that if the Governor, 
as Commander-in-Chief, makes no order or specific designation as to time 
of service, vmder said section 11 or 105, such an employee would be lim- 
ited by the phraseology of said section 54 to receiving fifteen days' pay 
only "during his annual tour of duty ... as a member of the organized 
reserve of the army of the United States." 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Laborers — Hours of Work — Vacations. 

July 22, 1940. 

Hon. Raymond J. Kenney, Commissioner of Conservation. 

Dear Sir: — I am in receipt of your recent letter relative to hours of 
work for laborers in the employ of the Commonwealth working in your 
department. 

G. L. (Ter. Ed.) c. 149, § 30, as amended, provides for an eight-hour 
day for laborers in the employ of the Commonwealth and forty-eight 
hours in any one week. A Saturday half holiday is provided for by sec- 
tion 41 of said chapter, and it is provided by section 33 of said chapter 
that if such half holiday is given it shall not be a violation of the eight- 
hour provision of said section 30, if the hours of labor on other working 
days than Saturday be increased sufficiently to make a total of forty-eight 
hours during the week. 

Section 38 of said chapter entitles the Commonwealth's laborers therein 
described to a twelve-day annual vacation with pay. This applies to all 
permanent laborers in your department. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Hairdressers — Advertisement — Rules. 

July 22, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — I am in receipt of a request from you asking my 
opinion, on behalf of the Board of Registration of Hairdressers, with rela- 
tion to a certain form of advertisement submitted by them in a recent 
communication to you. 

The advertisement in question, as described in the Board's letter, ap- 
pears merely to offer to the public the accommodation of credit, upon a 



P.D. 12. 89 

weekly payment plan, to those customers whom the advertiser permits 
to open an account. The fact that a small down payment is required be- 
fore such an account may be opened and that the advertiser restricts such 
credit accommodation to those whose financial condition it may determine 
satisfactory after investigation, as described in said communication, would 
not bring the advertisement within a reasonable interpretation of any of 
the prohibitions concerning advertising contained in the Board's rules. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Police Officer — Ar7-est — Detention of Prisoner. 

Aug. 1, 1940. 
Mr. Frank A. Dwyer, Acting Commissioner of Correction. 

Dear Sir : — You ask my interpretation of certain language contained 
in G. L. (Ter. Ed.) c. 127, § 127. This statute, as amended by St. 1939, 
c. 71, provides: — 

"The governor, upon the written recommendation of the commissioner, 
may appoint any agent or employee of the department of correction or 
any employee of any penal institution a special state police officer for a 
term of three years, unless sooner removed. Officers so appointed may 
serve warrants issued by the parole board and orders of removal or trans- 
fer of prisoners issued by the commissioner and warrants issued by any 
court or trial justice in the commonwealth for the arrest of a person 
charged with the crime of escape or attempt to escape from a penal insti- 
tution or from the custody of an officer while being conveyed to or from 
any such institution, and may perform police duty about the premises 
of penal institutions." 

Your letter asks ni}^ opinion upon the two following questions : — 

"1. j\Iay a special State police officer arrest a person committing a mis- 
demeanor or felony on the premises of a penal institution? 

2. Assuming an affirmative answer to the above, may I further inquire 
whether or not a person so arrested should be detained at the institution 
in question until the next session of the district court within whose ju- 
dicial district the institution is situated, or whether such detention, sub- 
ject to bail, should be at the nearest State or local police station?" 

In answer to your first question, it is my opinion that the authorization 
to "perform police duty about the premises of penal institutions" con- 
fers authority upon such special police officers to arrest a person com- 
mitting a misdemeanor or felony on the premises, under such conditions 
as would permit arrests to be made by police officers of cities and towns. 

In answer to your second question, it is my opinion that a person so 
arrested may be detained at the institution as well as at the nearest lockup 
(see G. L. [Ter. Ed.] c. 40, §§ 34 and 37), provided he is kept in the arrest- 
ing officer's custody, but not otherwise. 

Very truly yours, 

Paul A. Dever, Attorney General. 



90 P.D. 12. 

Metropolitan District Commission — Effect of a Later Statute, Relative to 
Awarding Contracts, upon an Earlier Statute. 

Aug. 12, 1940. 

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

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

"St. 1937, c. 352, sets up certain requirements regulating the making 
and awarding of certain contracts by the Metropolitan District Commis- 
sion and the Metropolitan District Water Supply Commission. 

St. 1939, c. 427, an act relative to competitive bidding on State con- 
tracts, sets up requirements of a somewhat different character from those 
incorporated in said chapter 352. The Commission has been complying 
with the requirements of the 1939 act, in accordance with an order to all 
department heads promulgated by the Commission on Administration 
and Finance. 

In a recent audit of our accounts and other procedures a representative 
of the State Auditor contended that the act of 1939 in no way supersedes 
nor abrogates the 1937 act, and that it is the obligation of the Commission 
to give the earlier act full compliance. 

As the Commission on Administration and Finance is not inclined to 
agree with the Auditor's contention, the Metropolitan District Commis- 
sion will appreciate early advice as to the course it should properly follow." 

The earlier statute, that of 1937, regulates the making and awarding 
of certain contracts by the Metropolitan District Commission and the 
Metropolitan District Water Supply Commission. It is incorporated into 
the General Laws in chapter 92 as section 60A. The latter statute, that 
of 1939, regulates the competitive bidding on State contracts, and applies 
to "officers having charge of any office, department or undertaking which 
receives a periodic appropriation from the Commonwealth." As such it 
applies, of course, to the Metropolitan District Commission and the 
Metropolitan District Water Supply Commission. There is no repealing 
clause in the 1939 statute. The two statutes are not necessarily incon- 
sistent; that is, the Metropolitan District Commission and the Metro- 
politan District Water Supply Commission can comply with the provi- 
sions of both. 

Our Supreme Judicial Court has ruled that repeal must be by express 
words or clear implication. Egan v. Mayor of Boston, 298 Mass. 448. 
Repeals by implication are not favored, and the provisions of both statutes 
are to be given effect unless there is some positive repugnancy between 
them. Walsh v. Commissioners of Civil Service, 300 Mass. 244; Eastern 
Racing Assn. v. Revere, 300 Mass. 578; Commonwealth v. Bloomberg, 302 
Mass. 349. In the latter case the court said: — 

"As there is no express repeal it is contended that there is a repeal by 
implication. Such repeals have never been favored by our law. Unless 
the prior statute is so repugnant to and inconsistent with the later enact- 
ment that both cannot stand, then the former is not deemed to have been 
repealed." 

I am therefore of opinion that it is the duty of the Metropolitan District 



P.D. 12. 91 

Commission and the Metropolitan District Water Supply Commission to 
comply with the provisions of both statutes. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Outdoor Advertising — Department of Public Works — Rules — Highways — 

Reservations. 

Aug. 12, 1940. 

Hon. John W. Beal, Commissioner of Public Works. 

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

"G. L. (Ter. Ed.) c. 93, §§ 29-33, inclusive, relate to advertising signs 
and devices within public view. 

Section 29 of this act directs this department to make rules and regula- 
tions for the proper control and restriction of billboards, signs and other 
advertising devices on public ways or on private property within public 
view of any highway, public park or reservation. 

Pursuant to the authority contained in this act, the Commissioners, on 
January 24, 1924, made certain rules and regulations. 

Section 4B of said rules provides that no permit will be issued for out- 
door advertising in any location which is within 300 feet of any public 
park or reservation if within view of any portion of the same. 

A question has arisen as to whether or not the highways controlled by 
the jNIetropolitan District Commission are 'reservations' within the mean- 
ing of this act. This department has been of the opinion that such high- 
ways are not reservations, but the Metropolitan District Commission 
maintains that all highways controlled by that Board are reservations, 
and therefore come within the scope of the section of the rules above 
referred to. 

Will you kindly let me know at your earhest opportunity whether or 
not, in your opinion, the highways controlled by the Metropolitan Dis- 
trict Commission should be classed as 'reservations,' within the meaning 
of G. L. (Ter. Ed.) c. 93, § 29." 

In my opinion, highways controlled by the Metropolitan District Com- 
mission are not reservations, within the meaning of G. L. (Ter. Ed.) c. 93, 
§ 29, and section 4B of the rules and regulations issued by your department. 

It is to be presumed that the department's regulation employs the term 
in the same sense that it is used in the statute authorizing the department 
to make rules and regulations. The inquiry, therefore, as your letter 
assumes, calls for the interpretation of the word as it appears in section 29 
of the statute. 

This section, as last amended by St. 1931, c. 394, § 96, provides, in its 
material part, as follows : — 

"The department of public works, hereinafter called the department, 
shall make and may amend or repeal rules and regulations for the proper 
control and restriction of billboards, signs and other advertising devices, 
except as provided in section thirty-two, on public ways or on private 
property within public view of any highway, public park or reserva- 
tion. . . ." 

A further reference to "reservation" occurs in section 30, which reads, 
in part : — 



92 P.D. 12. 

"No person, firm, association or corporation shall post, erect, display 
or maintain on any public way or on private property within public view 
from any highway, public park or reservation any billboard or other ad- 
vertising device, whether erected before August twenty-fifth, nineteen 
hundred and twenty, or not, which advertises or calls attention to any 
busmess, article, substance or any other thing, unless such billboard or 
device conforms to the rules and regulations and ordinances or by-laws 
established under the preceding section; . , ." 

As the term "reservation" is frequently employed in the General Laws, 
an inquiry as to the sense in which it has been used in other parts of the 
General Laws ought to help in determining the sense in which it is used 
in the law in question. 

In chapter 92, which deals with the Metropolitan Parks District, sec- 
tion 33 authorizes the Metropolitan District Commission to acquire and 
maintain within the district "open spaces for exercise and recreation, in 
this chapter called reservations." Section 35 authorizes the Commission 
to "connect any way, park or other public open space with any part of 
the towns of the metropolitan parks district under its jurisdiction by 
suitable roadways or boulevards, in this chapter called boulevards, and 
for this purpose [to] exercise any of the rights and powers granted the 
commission in respect to reservations," further authorizing the Commis- 
sion to construct and maintain roadways or boulevards upon land ac- 
quired "for such boulevards or for reservations." Section 37 authorizes 
the Commission to "make rules and regulations for the government and 
use of the reservations or boulevards under its care," and there are fur- 
ther references in the chapter to "boulevards and reservations." 

So far, therefore, as the Metropolitan Parks District is concerned the 
Legislature expressly defines reservations as "open spaces for exercise and 
recreation," and distinguishes such "reservations" from the "boulevards" 
which pass through them or connect them with other public open spaces 
or parts of the towns in the district. 

G. L. (Ter. Ed.) cc. 21 and 132A, vest in the Commissioner of Conserva- 
tion the same powers "relative to all open spaces for exercise and recrea- 
tion or reservations acquired by the department [of conservation] outside 
the metropolitan parks department as are conferred by law upon the met- 
ropolitan district commission relative to reservations under its control" 
(c. 21, § 3A). There is authorized a State Reservation Trust Fund for 
the purpose of "establishing and maintaining reservations outside the 
metropolitan parks district" (§ 3B). Under "Division of Parks," section 
11 provides for a director of the division of parks, who "shall act for the 
commonwealth in the care and management of parks and reservations 
owned by the commonwealth outside of the metropolitan parks district 
for purposes of recreation or conservation." 

Chapter 132, entitled "Forestry," by section 38 authorizes the Commis- 
sioner of Conservation to "lay out, construct and maintain trails or paths 
through or over lands in state forests and in public reservations" as well 
as leading to important mountains and other objects and places of special 
interest and beauty. 

Inasmuch as the statutes dealing with the Department of Conservation 
are based upon those dealing with the Metropolitan District Commission 
and employ the same phrase, "open spaces for exercise and recreation," 
I am of opinion that the term "reservation" as used throughout that 



P.D. 12. 9-5 

chapter includes open spaces for exercise and recreation as well as land 
acquired for purposes of "conservation." 

Turning now to chapter 45, dealing with public parks, playgrounds and 
the public domain and with the powers of towns and cities with reference 
thereto, I find that there are provisions for public parks (§§ 2-11), play- 
grounds (§§ 14-18), public domain (§§ 19-23) and "shore reservations" 
(§§ 23A-23C). These provisions for "shore reservations bordering on 
tidewater" are the only ones in the chapter employing the term "reser- 
vations." It is, however, to be noted, by way of analogy to similar pro- 
visions relative to the MetropoHtan Parks District, that the park boards 
are authorized to connect any public park or way under their control with 
any part of the city or town (§4). 

This examination of the statutes shows that the Legislature, in using 
the term "reservations" in association with such terms as public parks, 
playgrounds, highways and boulevards, refers to open spaces for exercise 
and recreation and for conservation of natural resources, from which it 
distinguishes the boulevards or highways passing through them and con- 
necting them with other parts of the city, town or district. Clearly, the 
Legislature has not used the term "reservation" as inclusive of highways, 
and I am of opinion that the distinction apparent in other parts of the 
General Laws is also present in sections 29 and 30 of chapter 93. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Commonwealth — Land — Power to restrict Use. 

Aug. 13, 1940. 

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

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

"In connection with the Flood Development Program, I have been 
requested to grant to the United States of America, or its assigns, con- 
tractors, agents and employees, a license to pass and repass on certain 
land situated in the town of Royalston and owned by the Commonwealth 
of Massachusetts, identified as part of the Templeton Colony of the 
Walter E. Fernald State School. 

I have also been requested to grant license to proceed without limitation 
with all necessary work in a proposed construction and relocation of the 
Boston and Maine Railroad. In the information coming to me it appears 
that a proposal was made for the relocation of the Boston and Maine 
Railroad from a certain tract of land to the land owned by the Common- 
wealth mentioned above. 

I would like to inquire as to whether or not I, as the Commissioner of 
Mental Health, have the legal right to enter into such agreement involv- 
ing unlimited restrictions in the relocation of a railroad on land owned by 
the Commonwealth and held in the name of this department and its sub- 
ordinate institution." 

The General Laws make certain provisions relative to the Walter E. 
Fernald State School. Section 6 of chapter 19 provides for a board of 
trustees consisting of six members on the part of the Connnon wealth and 
six elected by the school, subject to the approval of the Governor and 



94 P.D. 12. 

Council. Section 26 of chapter 123 provides that the trustees of each 
State hospital shall have charge of the general interests thereof and shall 
see that its affairs are conducted according to law. Section 27 provides 
that such trustees "shall be a corporation for the purpose of taking and 
holding, by them and their successors, in trust for the commonwealth, 
any grant or devise of land . . . made for the use of the state hospital 
of which they are trustees." 

There are no provisions authorizing either the trustees or the Depart- 
ment of Mental Health to sell or transfer any title or interest in the lands 
held by such trustees except as section 44A of chapter 30 provides that 
any commissioner or head of a State department having control of any 
land of the Commonwealth may, subject to the approval of the Governor 
and Council, sell and convey it to any county, city or town for the purpose 
of laying out or relocating a highway. 

In the absence of power granted by the Legislature, a department can- 
not sell or encumber the Commonwealth's property. See VI Op. Atty. 
Gen. 55; VII Op. Atty. Gen. 557; VIII Op. Atty Gen. 476. 

In my opinion, the trustees of a State hospital having in charge the 
general interests thereof and the duty of conducting its affairs according 
to law may, at any rate, subject to the approval of the Commissioner, 
permit people to pass and repass on the hospital property, and that being 
so, they may grant a license, which by its nature is revocable, to pass and 
repass thereon. 

On the other hand, however, neither the trustees nor the Commissioner 
has the right to sell or encumber the Commonwealth's property within 
their control, or to make any agreements to do so. 

Inasmuch as the draft of agreement which accompanies your letter 
employs certain language which might be construed as creating or recog- 
nizing a right of way or easement, and inasmuch, further, as said agree- 
ment does not contemplate its execution by the trustees, I am of opinion 
that it ought not to be executed. 

If, however, the representatives of the United States care to submit a 
redraft which shall be framed to comply with the law as stated in this 
letter, and which provides that it be executed by the trustees, with the 
approval of the Commissioner, I can see no legal objection to its being 
signed. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Municipalities — Labor Service — Probationary Period — 

Date of Employment. 

Aug. 13, 1940. 
Civil Service Commissioners. 

Gentlemen : — You ask my opinion upon certain questions of law con- 
cerning the Civil Service Law and Rules with relation to employees of 
cities and towns which accept the Civil Service Law, G. L. (Ter. Ed.) 
c. 31, as amended. 

1. Your first question reads: — 

"Are persons employed in the labor service of a city or town which 
accepts the Civil Service Law automatically included in the civil service 
upon acceptance of the act?" 



P.D. 12. 95 

The mode of acceptance by cities and towns is set forth in G. L. (Ter. 
Ed.) e. 31, § 47, as amended, and reads: — 

"This chapter shall continue in force in all the cities of the common- 
wealth and in all towns of more than twelve thousand inhabitants which 
have accepted corresponding provisions of earlier laws, and shall be in 
force in all such towns which hereafter accept it by vote at a town meet- 
ing. The provisions of this chapter and the rules established under it 
relative to employment of laborers designated as the 'labor service' shall 
not be in force in any city of less than one hundred thousand inhabitants, 
which has not heretofore accepted the corresponding provisions of earlier 
laws, until said provisions are accepted by the city council." 

With relation to your first question, I assume it concerns a municipality 
so accepting the Civil Service Law as to include the labor service in the 
mode prescribed in said section 47. 

Concerning a municipal laborer whose municipality accepts said sec- 
tion 47, our Supreme Judicial Court, on October 25, 1939, stated the ap- 
plicable rule of law to be : — 

"Upon the acceptance of § 47 and agreeably to the provisions of the 
second paragraph of Rule 30, the petitioner acquired the status of an em- 
ployee in the classified civil service, subject, however, to the provisions of 
Rule 18. To hold that he thereby became a permanent employee and not 
subject to Rule 18 would contravene the mandatory provisions of c. 31, 
that there shall be a period of probation before an appointment or em- 
ployment is made permanent." 

The court then went on to hold, in regard to the case of the laborer then 
before them, that upon acceptance of section 47 by the city he did not 
thereby acquire a permanent tenure but one subject to removal during a 
probationary period of six months from such acceptance, and that his 
removal during such probationary period was not unlawful. The court 
also said that, by force of the second paragraph of Rule 30, an available 
classified list, supplementing classifications already made, exists, into which 
laborers fall upon the adopting of section 47 by their municipality, though 
also subject to the probationary period of Rule 18. Crimmins v. Highway 
Commission of Brockton, 304 Mass. 161. I do not think that the effect 
of the opinion in Crimmins v. HigMvay Commission of Brockton, supra, 
in these respects is altered by the fact that section 15 of G. L. (Ter. Ed.) 
c. 31, was amended into its present form subsequent to said opinion. 

In view of the foregoing opinion, I answer your first question to the 
effect that such persons in the labor service upon the acceptance of sec- 
tion 47 are still in the employment of their municipality, and are required 
to be and will be regarded as on a classified fist under Rule 30 and prob- 
ably subject to classification under Rule 32, but are still not yet to be 
regarded "as holding . . . employment in the classified public service," 
within the meaning of the quoted words as used in said Rule 18 with rela- 
tion to a probationary period. 

2. In answer to your second question, following the views above set 
forth it is my opinion, from the phraseology^ and content of section 15(b) 
that that section was not intended by the General Court to have any 
application to the labor service. 

3. Your third question is answered by the opinion expressed herein in 
reply to the first question set forth in your letter. 



96 P.D. 12. 

4. Your fourth question reads : — 

"In any of these cases, what date should be assumed as the date fix- 
ing the employment of persons in the labor service; for instance, whether 
it should be the date when the council or aldermen pass the resolution, 
the date when the mayor signs it, or the date when any appeal period or 
referendum period might elapse?" 

The date fixing the employment of persons in the labor service should 
be taken to be the date when the acceptance of said section 47 becomes 
effective. This will be fixed upon differing principles according to the 
various modes of government in municipalities, and your question in its 
present form cannot be answered more specifically. In each instance the 
date in question will also be the date for determining the beginning of 
the six months' probationary period, about which you ask in your ques- 
tion 5. 

I do not think that there is any necessary inconsistency between sec- 
tion 15 of chapter 31, interpreted in connection with section 47 of the 
same chapter 31, so as to make the statute read as an harmonious law, 
and the rules to which you call my attention on the last page of your let- 
ter, if they be interpreted in accordance with the said opinion of the 
Supreme Judicial Court. 

Very truly yours, 

Paul -A. Dever, Attorney General. 

Housing Authority Law — Referendum Provisions. 

Aug. 14, 1940. 

Mr. Thomas P. McKiernan, Informational Representative, Holyoke 

Housing Authority. 

Dear Sir : — The Secretary of the Commonwealth has referred to me 
your letter to him requesting an opinion relative to the referendum pro- 
visions of St. 1938, c. 484, inserting into G. L. (Ter. Ed.) c. 121, sections 
26I-26II, inclusive, to be known and cited as the Housing Authority Law. 

The section which you ask to have construed is 26II, which provides 
as follows : — 

"At the written request of ten per cent of the registered voters in any 
city the following question shall be placed upon the ballot in such city 
at any state election. 

Shall the mayor and city council of the city of [Insert name of city] be 
authorized in accordance with the provisions of the Housing Authority 
Law (St. 1938, c. ) to appropriate public funds and make 
contribution (in the form of tax exemptions or otherwise) in 
aid of low cost housing projects? 

(Mark X in appropriate box.) 

From and after the date of such election no contribution in the form 
of grants of tax exemption or otherwise and no appropriations in any 
form shall be made by such city to any project which has not been ap- 
proved both by the housing board and by the federal government prior 
to January first, nineteen hundred and forty, or prior to the date of such 
election, unless at such election a majority of the registered voters voting 
upon the foregoing question shall have voted in the affirmative. Nothing 
in this section and no action with respect to any such referendum shall 



TES. 




NO. 





P.D. 12. 97 

in any manner affect any action taken or contract made, prior to such 
election, in compliance with or pursuant to the provisions of sections 
twenty-six J to twenty-six II, inclusive, with respect to any project ap- 
proved both by the housinii })()ard and by the fed(^ral government prior 
to January first, nineteen lumdred and forty, or prior to the date of such 
election. Except as expressly provided in this section the nu>thod of re- 
questing; that the foregoing question be placed upon the ballot shall be 
in accordance with sections nineteen to twenty-one, inclusive, of chapter 
fifty-three, and the instructions given by any such referendum shall be 
binding upon the city in which such referendum is held." 

The pertinent facts, as I understand them from your letter, together 
with a supplementary letter addressed to me by your Executive Director, 
under date of August 9, 1940, are these: 

The Holyoke Housing Authority, which has been duly established under 
the Housing Authority Law, now has under construction a housing project 
known as Lyman Terrace, designed to cost approximately $828,000, re- 
ceivable from the United States Housing Authority out of "an ear-marking 
of $1,800,000 for low rent housing in Holyoke." 

A second project is now proposed which will use the remaining $972,000 
ear-marked by the United States Housing Authority. With respect to 
this project, however, the board of aldermen has not adopted any order 
determining to co-operate vv^ith the Holyoke Housing Authority in its 
development and administration or to enter into a so-called co-operation 
agreement with the Housing Authority, as provided for under sections 
26 W and 26X of the act. 

Your letter states that "public appropriation for survey, etc., has al- 
ready been made," by which I assume you mean that a vote has been 
passed by the board of aldermen under section 26U of the act, which pro- 
vides: "For the purpose of defraying the initial costs and annual admin- 
istrative expenses of a housing authority authorized to be organized therein, 
including the expenses of preparing plans, making surveys, and the like, 
in connection with one or more proposed projects, a city or town . . . 
may annually appropriate ..." 

I do not understand that the city has made any other appropriation 
as authorized by sections 26U and 26V. While your letter states that no 
further appropriation is necessary, it will be observed that the Housing 
Authority Law provides that appropriations may be made both "for the 
purpose of aiding such housing authority in the preparation of plans and 
estimates in connection with the submission to the federal government of 
one or more applications for loans or grants" (under § 26U) and "in aid 
of such authority, such svuns as may be necessary for defraying such part 
of the development, acquisition or operating costs of a clearance or low- 
rent housing project ... to which the federal government . . . has ren- 
dered or has agreed to render financial assistance, as will not be met by 
loans, contributions or grants from the federal government or otherwise." 

While your situation, therefore, may be such that it will not be neces- 
sary for the city to make furtlier appropriations, under these latter pro- 
visions of the statute the Housing Authority Law contemplates that such 
appropriations might be made. 

The referendum provision contained in section 26II apparently con- 
templates that the voters shall determine the question whether or not 
low-cost housing projects are to be authorized, leaving the question of 



98 P.D. 12. 

method of financing as between appropriations, loans, contributions or 
grants with the mayor and board of aldermen. 

The language of the statute is mandatory that the question which may 
be placed upon the ballot shall be in the form prescribed. 

In the absence of any other provisions in the city charter authorizing 
referenda to the voters, it is my opinion that the question, if it is to be 
submitted to the voters, must be in the form prescribed by the act. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Local Board of Public Welfare — Appointment of Prosecutor 

and Investigator. 

Aug. 20, 1940. 
Mr. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — I am in receipt of your recent letter. 

The public welfare department of the city of Worcester, like other 
similar departments, has been vested by the General Court with unusual 
power in relation to the prosecution in the courts of matters founded on 
G. L. (Ter. Ed.) c. 117, §§ 28-30, inclusive, by section 31 of said chapter 
117, which reads: — 

"In actions and prosecutions founded on the preceding sections, the 
board of public welfare of any town or any person appointed by a writing 
under the hands of its members shall appear and prosecute or defend the 
same in behalf of such town." 

The authority given to the overseers of the poor, now the board of pub- 
lic welfare, to prosecute by themselves or by a person appointed for that 
purpose by themselves, in writing, is very old, antedating civil service 
laws (see Gen. St. c. 70, § 72; Pub. St. c. 84, § 33), and has been con- 
tinued in substantially the same form into G. L. (Ter. Ed.) c. 117, § 31. 
See Great Barrington v. Gibbons, 199 Mass. 527. The word "town" as 
used in said section 31 includes "city." The particular mode of employ- 
ment and the means of appointment and removal, apparently at the will 
of the board of public welfare, of the particular person whom it chooses 
to perform the particular and peculiar duties in this regard, which it may 
at any time perform itself, indicate clearly a legislative intent that the 
person so appointed should not be subject to the provisions of the civil 
service, so that the general presumption in favor of civil service coverage 
is not here applicable. 

If a position exists in the public welfare department of special investi- 
gating assistant, with duties other than those which would rest upon the 
said person appointed in writing by the board, previously referred to, 
there would appear to be no reason why that should not be filled in the 
usual way by appointment from an established civil service list of appli- 
cants for such position as a "special investigating assistant." A clear dis- 
tinction should at all times be made between the nature, duties and char- 
acteristics of the two positions referred to in your letter. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. • 99 

Civil Service — Renewal of Temporary Appointment — Duration of 

Appointment. 

Aug. 21, 1940. 
Hon. Ulysses J. Lttpien, Director of Civil Service. 

Dear Sir: — You request my opinion as to whether that part of G. L. 
(Ter. Ed.) c. 31, § 15, as amended by St. 1939, c. 506, § 2, which author- 
izes the making of a provisional appointment for a period of not more 
than ninety days, and to be renewed for an additional ninety days, is to 
be interpreted as meaning calendar days or actual working days. 

In my opinion, the statute must be interpreted as referring to calendar 
days. In the Opinion of the Justices to the Senate, 291 Mass. 572, 577, 
the justices quote with approval the statement in the Pocket Veto Case, 
279 U. S. 655, 679, that "The word 'days,' when not quahfied, means in 
ordinary and common usage calendar days." 

In the instant statute there is nothing to indicate that the word "days" 
was not used in the meaning which ordinary and common usage attributes 
to it. 

Again, it is to be noted that the statute describes the length of time of 
the provisional appointment as a "period of not more than ninety days," 
and the general definition of the word "period" in reference to time refers 
to a continuous period. 

Very truly yours, 

Paul A. Dever, Attorney General. 

License — Structures in the Charles River between Charles River Bridge and 

Waltham. 

Sept. 10, 1940. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sir : — Replying to your recent letter, I am of the opinion that 
your department has no authority to license structures in the waters of 
Charles River and adjacent canals between Charles River Bridge and the 
city of Waltham. 

Since the completion of the dam built in pursuance of St. 1903, c. 465, 
the waters in question are no longer tidewaters. By section 7 of said 
chapter 465 the exclusive control of structures in the waters in question 
appears to have been vested in the Metropolitan Park Commission, so 
that your department appears no longer to have authority to license such 
structures. See VII Op. Atty. Gen. 660. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Employees of the Emergency Public Works Commission. 

Sept. 10, 1940. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

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

"I respectfully request an opinion on the following: 

Are the employees of the Emergency Public Works Commission subject 
to the requirements of the Civil Service Law and Rules. 

The members of the Emergency Public Works Commission believe that 
the language used in section 1 of St. 1933, c. 365, exempts their appointees 
from the Civil Service Rules .... This section reads, in part: 



100 • P.D. 12. 

'The commission may employ, subject to the approval of the governor 
and council, a secretary and such additional expert and clerical assist- 
ants as it may require.' " 

I have previously expressed the opinion that "employees" of the Com- 
monwealth, as distinguished from "officers" (see G. L. [Ter. Ed.] c. 31, 
§ 5), are not exempt from the provisions of the Civil Service Law and 
Rules solely by reason of the fact that their appointment is subject to the 
approval of the Governor and Council. Attorney General's Report, 1937, 
p. 70. 

The Emergency Public Works Commission, as created by St. 1933, 
c. 365, had a fixed date set for the termination of its existence. That 
existence has been extended by various statutes enacted since 1933, but 
each has limited such extension. By St.' 1938, c. 501, § 11, its end is set 
for November 30, 1941, and this is not changed by the phraseology of 
St. 1939, c. 418. What, if any, similar action might be taken by the 
Legislature in the future is not now within our knowledge, and it must 
be presently said that the life of the Commission is to end on November 
30, 1941. In this respect this Commission differs from the Emergency 
Finance Board, which at the present has no fixed date set for its termina- 
tion. With relation to the said Board I rendered an opinion to you on 
May 13, 1939 (not published). 

The statutes dealing with the existence of the Commission have been 
emergency acts, and the work which it has been given to perform appears 
to have been of a temporary character. In view of the foregoing facts 
and since the Commission is by act of the Legislature only to function 
for a short and explicitly defined term, I am of the opinion that it was the 
intent of the Legislature, in providing for the employees of the Commis- 
sion to whom you refer, that they should not be subject to the Civil Service 
Law and Rules but were to be an exception to the general assumption 
that public employees are intended to be included within the scope of such 
laws and rules. 

Accordingly, I answer your question in the negative. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Employees of the Metropolitan District Sewer Construction 

Commission. 

Sept. 10, 1940. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir : — I am in receipt of your letter relative to the employment 
by the Metropohtan District Sewer Construction Commission of persons 
outside the civil service upon the special work which it is authorized to 
carry on under St. 1939, c. 512. 

Its authority in this respect is governed by section 2 of said chapter 
512, which reads: — 

"The commission may appoint, and in its discretion remove, such engi- 
neering, legal, clerical and other assistants as they may deem necessary 
to carry on the work hereinafter authorized, and may fix their compensa- 
tion in accordance with such rules and regulations as the commission may 
estabhsh and as shall be approved by the governor and council. Such 
appointments shall not be subject to classification under sections forty- 
five to fifty, inclusive, of chapter thirty of the General Laws, and chapter 



WD. 12. 101 

thirty-one of the General Laws shall not apply to removals, and, in ac- 
cordance with such regulations as the commission may establish and as 
shall be approved by the governor and council, any appointment, includ- 
ing that of chief engineer, maj^ be wholly exempt from said chapter thirty- 
one." 

It is plain that removals of engineers and other employees under said 
section are not to be controlled by the Civil Service Law and Rules. It 
is equally plain that appointments are not to be controlled by the Civil 
Service Law and Rules when regulations established by the Commission 
and approved by the Governor and Council provide otherwise. In the 
absence of such approved regulations, appointments are to be controlled 
b}?^ such Civil Service Law and Rules. 

The usual sweep of the Civil Service Law and Rules is limited in its 
scope by the express provisions of section 2 of said chapter 512, which 
was enacted subsequently to the establishment of the Civil Service Rules 
and after the passage of St. 1939, c. 328, which amended the previously 
existing Civil Service Law and continued said rules in effect. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Amendment of Rule 23 — Reinstatement — Legislative 

Function. 

Sept. 12, 1940. 

Mr. JoHX C. Gilbert, Executive Secretary, Department of Civil Service and 

Registration . 

Dear Sir : — I have your letter submitting for my approval a proposed 
amendment to Civil Service Rule 23 by adding the following section : — 

"Section 5. Any person who, between August 1, 1940, and December 
31, 1941, is granted a leave of absence or is separated from the classified 
pubhc service of the Commonwealth or of any city or town therein, for 
the purpose of entering the military or naval service of the United States, 
and who serves or is rejected for such service, shall, if he so requests of 
the appointing authority within three months after his honorable dis- 
charge from such military or naval service or release from active duty 
therein or rejection therefrom, and exhibits to the director his honorable 
discharge or release from active duty or certificate of rejection, and also 
the certificate of a registered physician that he is not physically disabled 
or incapacitated for the position, be reinstated in his former position, or 
an equivalent position, without civil service apphcation or examination 
and without loss of seniority rights. 

This section shall apply also to such persons who left the classified 
service of the Commonwealth or of any city or town therein between 
June 1, 1940, and August 1, 1940, provided their positions had not already 
been permanently filled before August 1, 1940." 

The power of the Civil Service Board to make rules and regulations, 
subject to the approval of the Governor and Council, is derived from G. L. 
(Ter. Ed.) c. 31, § 3, as most recently amended by St. 1939, c. 238, § 12. 

One of the requirements of this section is that the rules "shall be con- 
sistent with law." One of the subjects upon which you are authorized 
to make rules and regulations is "preference to veterans in appointment 
and promotion, not inconsistent with this chapter," but a veteran is de- 



102 P.D. 12. 

fined in the act as a person who has served in the army, navy or marine 
corps of the United States in time of war or insurrection, etc., G. L. (Ter. 
Ed.) c. 31, § 21, as last amended by St. 1939, c. 238, § 28. 

Section 27 of said chapter 31 deals specifically with reinstatement after 
military or naval service. That, too, applies only to employees who have 
resigned or left the classified public service "for the purpose of serving in 
the military or naval service of the United States in time of war," etc. 
This provides that such persons, under certain circumstances and condi- 
tions, may be reappointed or re-employed, without civil service applica- 
tion or examination, in their former positions. 

Section 28 of said chapter 31 deals with restoration of names to the 
eligible list after such service, again specifically referring to "the military 
or naval service of the United States in time of war." 

The civil service statute as a whole, therefore, clearly indicates that the 
Legislature intended, itself, to pre-empt the field of re-employment of em- 
ployees after serving in the military or naval service of the United States, 
and that, having specifically provided for privileges of re-employment and 
restoration to the eligible list after military or naval service in time of 
war, it did not intend to confer upon the Civil Service Board power to 
grant similar privileges, after military or naval service in time of peace. 

I am therefore of opinion that only the Legislature has the right to 
deal with the matter which your Board proposes to deal with in this 
amendment. 

It would, of course, be particularly unfortunate to have civil service 
employees whose terms are suspended for military or naval service in 
time of peace rely upon a regulation of dubious validity. 

In order to accomplish the desired object, upon the coming in of the 
General Court legislation should be sought, of a retroactive nature, en- 
larging the scope of said section 27 of chapter 31, by amendment, and 
making specific provision for reinstatement of those employees who leave 
the Commonwealth's service for that of the military or naval service of 
the United States in time of peace. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Buildings — Federal Buildings — Freedom from Control by State 
Examiners of Plumbers. 

Sept. 19, 1940. 

Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You have recently, on behalf of the State Board of 
Examiners of Plumbers, written me as follows : — 

"Do the State Examiners of Plumbers have jurisdiction or supervision 
of installations of plumbing in buildings owned or erected by the State, 
said buildings and land having been leased to the Federal government? 

Do the State Examiners of Plumbers have jurisdiction or supervision of 
installation of plumbing in buildings erected by the Federal government 
on land owned by the State and leased to the Federal government? 

To clarify the questions, the Board know there is construction of plumb- 
ing going on at the camp at Bourne, Massachusetts. This land and prop- 
erty, the Board understand, has been leased to the Federal government. 
If it is the duty of the Board to take action in accordance with G. L. 



P.D. 12. 103 

(Ter. Ed.) c. 142, as amended by St. 1938, c. 302, they wish to be advised 
legally." 

G. L. (Ter. Ed.) c. 142, was amended by St. 1938, c. 302, which added 
' a new section to such chapter, which reads as follows: — 

"Section 21. The examiners shall formulate rules relative to the con- 
struction, alteration, repair and inspection of all plumbing work in build- 
ings owned and used by the commonwealth, subject to the approval of 
the department of pubhc health, and all plans for plumbing in such build- 
ings shall be subject to the approval of the examiners." 

The said examiners have formulated rules under said chapter. 

I am advised that the premises at Bourne, referred to in said letter, 
have been leased by the Commonwealth to the Federal government, that 
the buildings there are being erected by the Federal government for its 
own use and not by the Commonwealth, and that under the terms of the 
lease the buildings, which are not to be attached to the realty in such a 
manner that they cannot easily be removed, may at the termination of 
the leasehold period be required to be taken away by the Federal govern- 
ment at the desire of the State. The buildings are being erected as in- 
strumentalities of the United States Government in connection with the 
Army. 

Such being the circumstances surrounding the buildings of which you 
inquire, they cannot fairly be said to be "buildings owned and used by 
the commonwealth," as the quoted words are employed in said section 21 
so that the rules formulated by said Board of Examiners under the au- 
thority of said section 21 cannot be said to apply to these buildings. 

Irrespective of the precise manner in which the land at Bourne was 
acquired by the United States, which was by lease sanctioned by the 
Legislature, under G. L. (Ter. Ed.) c. 33, § 14, as amended by St. 1939, 
c 425 and not by express cession of jurisdiction, it may properly be said 
that these buildings, under present conditions, are such necessary instru- 
mentalities of the United States Government that they are to be free from 
any such control or interference by departments of the State as will de- 
teat or embarrass their effective use, under the direction of the United 
States authorities, for the public purpose to which the Federal government 
has devoted them. See Fort Leavenworth R.R. Co. v. Lowe, 114 U S 
525; Chicago & Pacific Ry. Co. v. McGlinn, 114 U. S. 542, 545. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Secretary to the Trustees of the Maiden Cemetery Department. 

Oct. 3 1940 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir : — You have asked my opinion as to whether or not the 
position of secretary to the board of trustees of the cemetery department 
ot the city of Maiden is properly classified under civil service. 

I am of the opinion that it is so properly classified. 

The ordinances of the city, by virtue of which the position exists, pro- 
vide with relation to the said trustees, who are municipal officers, and the 
position of secretary (Rev. Ord. 1928, c. XXIV): — 

"Section 2. . . . They shall have the care and management of the 



104 P.D. 12. 

cemeteries, and may appoint a secretary and superintendent, and fix 
their compensation. . . ." 

There is nothing in the language of the ordinance which indicates that 
the appointee is to hold his position only "during the pleasure" of the 
board. This fact differentiates the instant situation from that discussed 
in Robertson v. Coughlm, 196 Mass. 539, irrespective of what has hitherto 
been the practice of the said board in electing its secretary for an annual 
term. See VIII Op. Atty. Gen. 643. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Chiropodists — Certificates — Reneioals. 

Oct. 3, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — You have asked my opinion upon three questions sub- 
mitted by the Board of Registration in Chiropody-Podiatry. These ques- 
tions read : — 

"G. L. (Ter. Ed.) c. 112, § 16, as amended by St. 1937, c. 425, reads as 
follows, in part : 

*. . . Every such certificate shall expire on the last day of the year 
when it was granted, but upon payment of two dollars shall be renewed 
by the board for each subsequent year without examination.' 

1. In the auditors' report of 1939 the above clause was cited and a ques- 
tion was raised as to whether the Board was within its rights in issuing 
renewals which were not on file by January first. 

Question : Are the auditors correct in their interpretation? 

2. The Board has assumed that 'subsequent' meant 'following,' and 
that certificates of persons who failed to renew within one year after their 
previous renewal automatically lapsed and such persons could not register 
without an examination and compliance with the other requirements in- 
dicated by the statute. 

Question: Is the Board correct in its interpretation? 

3. Owing to a clerical error, renewals were issued for 1940 to two per- 
sons who had not renewed for from four to six years, and as far as known 
did not practice within that time. 

Question: Based on whatever interpretation is given point two, what is 
the status of these persons?" 

1. I am of the opinion that the Board, under the provisions of G. L. 
(Ter. Ed.) c. 112, § 16, quoted above, may renew a certificate for a year 
subsequent to that for which one was originally issued, at anj^ time dur- 
ing the subsequent year, without examination, upon payment of the pre- 
scribed fee. Such renewed certificate will be valid for whatever portion 
of the subsequent year still remains. 

I think the above statement of my opinion answers the first question 
adequately. 

2. As to the second question, I am of the opinion that the assumption 
upon which your Board has previously acted with regard to the meaning 
of the word "subsequent" in said section 16, set forth in your question, 
is correct, and that the interpretation placed upon the said section by the 
Board is a proper one. 



P.D. 12. .^. 

3 As to the third question, failure to renew an original certificate dur- 
ing the year siibseqiient to its issue would appear, by the implication of 
the terms of G; L (Ter^ Ed.) c. 112, §§ 16 and 17, to void the original 
registration. Ihe Board was without authority to issue a renewal cer- 
tifacate under the circumstances described in the third question, and the 
certificate issued by it as described in question 3 was invalid and does not 
operate to revive the original registration, which had become ineffective 
or to create m the holder the status of a "registered chiropodist," as the 
quoted words are used in section 16 of said chapter 112. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Employee — United States Naval Reserve — Annual Tour of Duty — 

Absence with Pay. 

Oct. 3, 1940. 
Mr. Lawrence F. Quigley, Commandant, Soldiers' Home in Massachusetts. 

in^rf ^tJ ~f,l f™ Q^/T^P^ ^^^^^' ^^**^^ «^ ^e^^'^t ^ate with relation 
to G. L (Ter. Ed.) c. 33, § 54, as inserted by St. 1939, c. 425, in connec- 
tion with a naval reserve officer. tonnec 
Under the provisions of said section 54, which you set forth in your let- 
pn+Wr^T^ ^^'"^ of the Commonwealth who is a naval reserve officer is 
entitled to receive his salary, irrespective of his absence from his employ- 
ment during his annual tour of duty of not exceeding fifteen days as a 

ZZs!'. .'' ""^^""'""^ '''"'''' • • • "^ '^' ^^^*^^ ^'^''' ^^^^1 ^i'rve 
As such member of the United States naval reserve he is not, however 
en itled to such salary except "during his annual tour of duty/' and then 
only for a period of fifteen days. 

tinn fn^f"'"'^.'^^ training, which you describe in your letter, with rela- 
tion to the particular naval reserve officer named therein is something 
different or more extensive than his annual tour of duty of fifteeTdays 
which he tenor of your letter would appear to indicate, he will not be 
entitled to his salary while so separated from the Commonwealth's public 

SGrVlCG. 

Very truly yours, 

Faul a. Dever, Attorney General. 

Commissioner of Public Welfare - Investigation of Local Boards of Public 

Welfare. 

Oct. 10, 1940. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir: — I am in receipt of your recent letter, which reads: — 
''Will you kindly furnish me with an opinion as to whether I have 
authority to investigate the activities of a local board of public welfare 

PubrwTffal' f /r "'''''fr "^l^^^* '^^ ^'^^^^^^ ^^ ^^e focal board o? 
public weffare, ff the request for such investigation is received from (1) the 
board of selectmen; (2) the finance committee; or (3) the town as a 
result of a vote at a town meeting." 

I am not aware of any power vested in you by the statutes which 
authorizes you or your department to investigate the activities of a local 



106 P.D. 12. 

board of public welfare by reason of the request of any other body, but 
without the consent of such board. It is to be noted, however, that under 
the particular supervisory authority vested in you by G. L. (Ter. Ed.) 
c. 118, § 5, c. 118A, § 10, and c. 117, § 46 (all as amended), you have a 
right of investigation, such as may be necessary to enable you to carry 
out your supervisory duties, to the extent and for the purposes specifically 
set forth in said sections, on your own initiative, with or without the con- 
sent of any board. 

Very truly yours, 

Paul A. Dever, -Attorney General. 

Division of Unemployment Compensation — Workm.eri's Compensation — 
Legislative Appropriation. 

Oct. 28, 1940. 

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

and Finance. 

Dear Sir: — I am in receipt of your recent letter enclosing a communi- 
cation of the Director of the Division of Unemployment Compensation. 

In such communication the Director asks my opinion "as to whether 
or not pajanents for workmen's compensation may be lawfully made, 
under the statutes of the Commonwealth, from the Division of Unemploy- 
ment Compensation Administration Fund." 

Although I am advised that heretofore the few compensation payments 
which have been made have been paid by departmental practice from the 
$100,000 appropriation item in the general budget for the workmen's com- 
pensation payments, nevertheless, I am of the opinion that, in view of 
the scope of payments permitted by the Legislature to be made from the 
"Unemployment Compensation Administration Account" by G. L. (Ter. 
Ed.) c. 151A, § 42, as amended, sums due for workmen's compensation 
to employees functioning in the said Division of Unemployment Com- 
pensation might lawfully be paid from such "administration account." 

The applicable portion of said section 42, as amended, reads : — 

"There is hereby created the unemployment compensation administra- 
tion account, hereinafter and in the two following sections called the 
account, to consist of all moneys appropriated by the commonwealth for 
the administration of this chapter and of all moneys received under this 
chapter or under federal law and designated for the administration of 
this chapter or for said account. The entire cost of the administration of 
this chapter, including salaries, cost of public employment offices, and 
other expenditures and expenses required, shaU be paid out of the account; 
provided, that in no case shall the administrative expenses exceed ten per 
.cent of the annual contributions of employers." 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 107 

Metropolitan District Commission — Workmen^ s Compensation — Legisla- 
tive Appropriation. 

Oct. 28, 1940. 

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

Dear Sir: — I am in receipt of your letter of recent date relative to 
the payment of workmen's compensation from money appropriated under 
St. 1938, c. 507, for the repair of hurricane and flood damage in the Met- 
ropolitan Parks and Metropolitan Water Districts. 

The statutory laws of the Commonwealth require that compensation 
be paid to injured laborers, workmen and mechanics in the service of your 
department, as to all other similar employees of the Commonwealth. 

An appropriation is made by the Legislature for the payment of work- 
men's compensation to public employees, a portion of which is charged 
to the Highway Fund (see St. 1938, c. 356, item 711; St. 1939, c. 309, 
item 664). I am informed that by a long course of administrative pro- 
cedure this appropriation is treated by the Comptroller as not being in- 
tended by the Legislature, by reason of its wording, to apply to employees 
in the service of your Commission, and that compensation has been paid 
to such employees from the various amounts appropriated by the Legis- 
lature for particular works to be constructed or maintained by your Com- 
mission. Inasmuch as the items appropriated for the public works con- 
structed or maintained by your Commission are generally to be assessed 
upon the several districts, in contradistinction to other items not so as- 
sessed, the settled administrative procedure seems not an incorrect inter- 
pretation of the legislative intent in setting up the items of the general 
appropriation bills. 

To apply the same mode of procedure to compensation due employees 
in your service, injured upon work done under the provisions of St. 1938, 
c. 507, does not appear to be improper. The payment of such compensa- 
tion, required by law, is an integral part of the cost of carrying out the 
work specifically referred to in said chapter 507, for which the moneys 
mentioned in part II of said chapter 507 are appropriated, and for which, 
under the interpretation already referred to, there is no other money 
appropriated. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Metropolitan District Commission — Power to grant Easements. 

Oct. 28, 1940. 

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

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

"This Commission has under consideration a request ... to carry an 
eil pipe line across aqueduct locations of the metropolitan water system 
at several points. The greater proportion of the requested crossings is 
through locations where the fee of the land is in the Commonwealth, but 
in a few instances the Commission only holds an easement for the aque- 
duct in the land. 



108 P.D. 12. 

The Commission understands that it has authority to permit a crossing 
of its aqueduct in an easement if the owner of the fee in the land also 
agrees. 

It would like, however, an opinion from you as to whether it is empow- 
ered to grant a permit for crossings where the fee of the land is in the Com- 
monwealth. Is there any statutory requirement in effect which would 
prevent the Commission from granting the requested permission in either, 
or both, cases?" 

Broad power has been vested in your Commission by the Legislature, 
by G. L. (Ter. Ed.) c. 92, § 82, not only to sell land which has been ac- 
quired by the Commonwealth no longer needed for water works, but also 
to "make grants or conveyances of easements" for valuable consideration 
in land so acquired in fee. This is a more extensive authority with rela- 
tion to the creation of easements in land of the Commonwealth than is 
vested in the department having control of State highways and not sub- 
ject to implied limitation from statutory enactments as to particular desig- 
nated easements in land used for water works. 

Hence, it follows that there is authority in your Commission to grant 
such easements as are mentioned in your letter, for consideration, at such 
points as they may be enjoyed without interference with the Common- 
wealth's use of the land. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Department of Public Woi'ks — Authority to name a Bridge. 

Oct. 28, 1940. 
Hon. John W. Beal, Commissioner of Public Works. 

Dear Sin: — I am in receipt of your letter of recent date asking my 
opinion as to your authority to name a certain bridge which, I understand 
from what you have written, is constructed and maintained by your de- 
partment by virtue of an order made in a grade crossing elimination case 
under G. L. (Ter. Ed.) c. 159, as amended. 

The mere fact that the duty of constructing and maintaining the bridge 
rests upon the Commonwealth and is carried out by your department, 
by virtue of an order made in such a grade crossing case, is not deter- 
minative of the right of your department to name the bridge. 

The sole determining factor is whether or not the bridge is an integral 
part of a State highway by reason of your layout of such a highway. If 
it is such a part, you would appear, by necessary implication from your 
other powers over State highways (see G. L. [Ter. Ed.] c. 81, as amended) 
and your authority to erect markings thereon under G. L. (Ter. Ed.) 
c. 85, § 2, as amended, to have the right to name the bridge. If it is not 
such a part of a State highway, by reason of your department's original 
action of laying out, but remains a town way, the authority to name it 
rests not with your department but with the town, irrespective of orders 
which may have been made with relation to such bridge in a grade cross- 
ing elimination order. 

If your department does not choose to designate a State highway bridge 
by a name chosen by itseK, it may adopt a name selected by a municipality. 

Very truly yours, 

Paul A. Dever, Attorney General. 



P.D. 12. 109 

State Retirement System — Veterans of the Spanish and World Wars. 

Nov. 14, 1940. 
Hon. William E. Hurley, Treasurer and Receiver General. 

Dear Sir: — In a recent letter you have asked my opinion as to the 
relation of veterans of the Spanish and World Wars in the State service 
to the retirement system. 

An opinion of a former Attorney General, with which I concur, was 
rendered to the State Retirement Board on July 8, 1920, V Op. Atty. Gen. 
634, which appears to establish the basic principles of law concerning the 
matter as to which you now inquire. New statutes passed since 1920 
have not materially altered the situation. 

G. L. (Ter. Ed.) c. 32, §§ 56-60, provide pensions for such veterans, 
upon retirement, for different designated reasons, under various stated 
conditions. 

St. 1934, c. 285, § 2, by amendment provided that no veteran whose 
employment first begins after December 31, 1937, should be subject to 
said sections 56-59, and so entitled to their benefits. 

St. 1937, c. 102, § 2, by further amendment provided that such pro- 
hibition should apply to veterans whose employment begins after June 30, 
1937. 

St. 1938, c. 452, by still further amendment provided that such pro- 
hibition should apply to veterans whose employment begins after June 30, 
1939, and in effect that the benefits of said sections 56-60 should apply 
to all veterans whose employment first began after June 30, 1937, and be- 
fore said June 30, 1939. 

These amending statutes "manifest both an intention to abolish non- 
contributory pensions for future appointees and an intention to retain 
them for the benefit of those already covered by them." Litchfield v. 
Retirement Board, 303 Mass. 473. Notwithstanding the existence of this 
noncontributory pension, these veterans, as to whom you inquire, became 
members of the State retirement system upon entering the service. They 
were not excluded from such system because they were or would be en- 
titled to a noncontributory pension from the Commonwealth. G. L. 
(Ter. Ed.) c. 32, § 3. The payment of such pension was dependent on 
numerous future factual conditions not ascertainable on entry into the 
service, among which are the possession of only a limited income (§§56 
and 57) for sary one not in the service for thirty years. These conditions, 
particularly the one relative to income, differentiate these noncontribu- 
tory pensions from the ones relating to court officers, referred to in Litch- 
field V. Retirement Board, supra, and indicate a legislative intent in enact- 
ing St. 1920, c. 574, in which said §§ 56-60 of G. L. (Ter. Ed.) c. 32, 
were originally emijodied, that this class of veterans were not to be ex- 
cluded from membership in the retirement system but were to be entitled 
to its benefits as well as to those of said chapter 574 in the alternative. 
It is further to be noted in this connection that the establishment of these 
pensions for veterans was in 1920, after the creation of the retirement sys- 
tem by St. 1911, c. 532. 

If retirement is effected under the terms of said sections 56-60, pro- 
vision for repayment of the money paid in by the veteran to the system is 
provided for by said chapter 32. 

With respect to State police officers, to whom you refer, St. 1939, c. 503, 



110 P.D. 12. 

specifically provides for their retirement, under certain conditions, upon 
a pension and an annuity to be paid by the system. No such particular 
provision has been made for these veterans whereby thej^ may receive 
both pension and such an annuity. No such provision for them arises 
by any implication from the legislative determination to confer this peculiar 
benefit upon the State police. 

I answer your first question in the affirmative but with the statement 
that retirement, either with a noncontributory pension or a pension under 
the retirement system, was intended by the applicable chapter to be avail- 
able for these veterans, but not both pensions. 

I answer your second question to the effect that veterans are not exempt 
from making contributions to the retirement fund, and that they are not 
entitled to an annuity in addition to a noncontributory pension. See 
VIII Op. Atty. Gen. 547, 548; Attorney General's Report, 1938, p. 15. 

Very truly yours, 

Paul A. Dever, Attorney General. 

State Retirement System — Payment of Allowances from the Massachusetts 
Unemployment Compensation Administration Fund. 

Nov. 15, 1940. 

Hon. Patrick J. Moynihan, Chairman, Cotnmission on Adminidraiion 

and Finance. 

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

"This Commission is requesting a ruling from you as to whether or not 
legal payments may be made from the Massachusetts Unemployment 
Compensation Administration Fund for the cost of retirement allowances." 

In my opinion, legal payments may be made from the Massachusetts 
Unemployment Compensation Administration Fund for the cost of re- 
tirement allowances. 

The cost of "retirement allowances" which are required by law to be 
paid to employees of the Unemployment Compensation Division are com- 
prehended within the scope of the phrase: "The entire cost of the admin- 
istration of this chapter, including salaries, cost of public employment 
offices, and other expenditures and expenses required, shall be paid out 
of the account" — as such phrase is employed with relation to the said 
Massachusetts Unemployment Compensation Administration Fund or 
Account in section 42 of G. L. (Ter. Ed.) c. 151A, as amended, the Unem- 
ployment Compensation Law of this Commonwealth. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Separation from the Service — Reinstatement. • 

Nov. 19, 1940. 
Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam : — I am in receipt of your recent letter enclosing a letter 
sent you by the Board of Registration of Barbers, in which said Board 
asks for advice concerning possible future action in regard to a former 
employee. 



P.D. 12. Ill 

The question which is asked is in its nature hy])othotic'al, and the facts 
relative to the employee in question are not made plain by the Board. 
Nevertheless, for the s^iidance of the Board let me state that, upon the 
assumption that the employee referred to has previously been removed 
from his position and separated from the service, it being assumed, also, 
that his separation from the classified civil service was through fault or 
delinquency of his own, his reinstatement is in the discretion of the Board, 
subject to authorization of such reinstatement by the Director of Civil 
Service, under the provisions of G. L. (Ter. Ed.) c. 31, § 46. 

Under such circumstances the employee, who had been properh' re- 
moved, is not entitled to the "back salary" mentioned in the letter of tlie 
Board. He maj- be reinstated, under the provisions of said section 46, 
only "in the same position or in a position in the same class and grade as 
that formerly held by him." 

Very truly yours, 

Pai'L a. Df:vek, Attorney General. 

Department of Industrial Accidents — Control over a Certain Fund which is 
now subject to Attachment. 

Nov. 21, 1940. 

Mr. John W. Henderson, Assistant Secretary, Department of Industrial 

Accidents. 

Dear Sir: — I have before me your request for an opinion as to the 
answer to be made by the Industrial Accident Board to the letter of James 
M. Rosenthal, city solicitor of the city of Pittsfield, received by j^our de- 
partment on August 20, 1940, requesting that you give an order to the 
Pittsfield Third National Bank and Trust Company, in favor of the cit}' 
of Pittsfield, releasing funds which the city solicitor claims to be under 
attachment bj'^ virtue of a trustee process brought by the city of Pittsfield 
against Edward Dubisky. 

The documents which you have laid before me with your lequest and 
the facts as you have set them forth show that on July 2, 1940, it was 
agreed, in writing, between Edward Dubisky, employee, the city of Pitts- 
field, employer, and the Liberty Mutual Insurance Comj^an}^, insurer, 
which agreement was duly approved by the Department of Industrial 
Accidents, that the liability could be redeemed by a lump sum settlement 
and that, after paying certain expenses, the balance was to be deposited 
in the Pittsfield Third National Bank and Trust Company, which was 
done. It was further stipulated in such agreement that all withdrawals 
from the said balance were to be made only on the written order of the 
Department of Industrial Accidents. 

It has been held in Kareske's Case, 250 Mass. 220, 224, that the Work- 
men's Compensation Act contemplates, by virtue of G. L. (Ter. Ed.) 
c. 152, §§ 6, 7 and 11, a procedure by which an enforceable obligation 
to pay compensation to an employee in a particular manner ma}^ be 
established by voluntary accord between the parties. 

B}'- virtue of the agreement voluntarily entered into by all the parties, 
the balance referred to still remains within the control of the Department 
of Industrial Accidents, though in the said bank. 

G. L. (Ter. Ed.) c. 152, § 48, authorizes redemption of liability by the 
payment of a lump sum, subject to the approval of the Department of 



112 P.D. 12. 

Industrial Accidents, and section 47 provides that "no payment shall be 
subject to attachment or liable in any way for debts." 

Therefore, in my opinion, this fund is one over which the Department 
of Industrial Accidents still has control and is not subject to attachment, 
and you should decline to release the same but should insist upon your 
right to the control thereof for the purpose of protecting the employee 
under the terms of the stipulation. 

Very truly yours, 

Paul A. Dever, Attorney General. 

Civil Service — Engineering Consultants and Their Employees connected with 
the Metropolitan District Commission. 

Nov. 27, 1940. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — I am in receipt of your recent letter with copy of com- 
munication which you have received from the Metropolitan District 
Commission. 

My opinion to you of September 10th {ante, p. 100) dealt specifically 
with the relation of the Metropolitan District Sewer Construction Com- 
mission to the Civil Service Law under the provisions of St. 1939, c. 512, 
§2. 

You now, in effect, inquire as to the relation of the Metropolitan Dis- 
trict Commission to the Civil Service Law and Rules in connection with 
engineering consultants and their employees, outside the direct classified 
service of the Commonwealth, engaged by the last-mentioned Commis- 
sion to make preliminary borings, surveys, plans and specifications under 
the terms of sections 9 and 11 of said chapter 512, which read: — 

"Section 9. Pending receipt of a grant of federal money for the fore- 
going purposes, the metropolitan district commission shall make borings 
and surveys and prepare plans and specifications for each of the foregoing 
projects. For the purpose of carrying out said work said commission may 
expend, from the amount authorized by section three, a sum not exceed- 
ing four per cent of the estimated cost of the aforementioned projects. 



Section 11. The commission shall have, in addition to any powers 
expressly given by law, such powers as may be proper and reasonably 
necessary to carry out said preparation of plans, specifications and borings." 

The contracts made by the Metropolitan District Commission with cer- 
tain consulting engineers, under the provisions of St. 1939, c. 512, which, 
in the opinion of the Attorney General, properly were within its authority 
to make (see Opinion of the Attorney General to the said Commission, 
January 18, 1940, not published), and which form the basis of the employ- 
ments referred to in your letter, are not such that any of the employees 
of the contracting consulting engineers come within the classes of persons 
described either in Civil Service Rule 1, section 4, or in Rule 4, section 1. 
The positions occupied by such employees of such engineers are not within 
the scope oi, the Civil Service Law and Rules. 

Very truly yours, 

Paul A. Dever, Attorney General. 



I 



P.D. 12. 113 

Plumbers — Licenses — Master Plumbers — Advertising. 

Nov. 27, 1940. 

Mrs. Margaret M. O'Riordan, Director of Registration. 

Dear Madam: — I am in receipt through you of a request from the 
Board of Examiners of Pkmibers for an opinion upon the two following 
questions : — 

"Can a person who has not been lawfully registered or hcensed as pro- 
vided under G. L. (Ter. Ed.) c. 142, § 3, advertise in any manner as a 
plumber, or to do plumbing? Can a person, by such advertising, go into 
the trade and estimate plumbing work, receive the contracts for the same 
and then sublet the plumbing to a hcensed plumber, legally? 

What is the status of a general contractor, either individual or corpora- 
tion, who, in the performance of his or its business, requests and receives 
estimates on plumbing from licensed registered plumbers, according to 
law, . . . ? Can he or it advertise to do plumbing?" 

A corporation cannot be a journeyman plumber but it may engage in 
the business of a master plumber. The essential features of the business 
of a master plumber are that he shall have "a regular place of business" 
and that he, either himself directly or by journeymen plumbers in his em- 
ploy, shall "perform plumbing work." G. L. (Ter. Ed.) c. 142, § 1. No 
one may engage in the business of a master plumber unless he is lawfully 
registered or hcensed. G. L. (Ter. Ed.) c. 142, § 3. The mere fact of 
advertising does not constitute engaging in the business of a master 
plumber though it might be some evidence tending to show, when coupled 
with other facts, that the advertiser did engage in such business. 

A general contractor or other person cannot necessarily be said to en- 
gage in the business of a master plumber because he advertises and makes 
contracts for plumbing if in fact neither he nor journeymen in his employ 
actually do the plumbing work called for by such contracts, but the same 
is performed by a licensed plumber under a subcontract made with him. 
Barriere v. Depatie, 219 Mass. 33. Attorney General v. Union Plumbing 
Co. Inc., 301 Mass. 86. 

The pertinent statutes themselves do not prohibit the "advertising" to 
which you refer. 

The foregoing statement of applicable principles of law furnishes ade- 
quate answers to your various inquiries. 

Very truly yours, 

Paul A. Dever, Attorney General. 



114 P.D. 12. 



INDEX TO OPINIONS 



PAGE 

Administration and Finance, Department of; rule-making power; allow- 
ance for maintenance 32 

Airports; great ponds; Department of Public Works 17 

Alcoholic beverages; license; time of renewal 15 

Transfer; receivership 17 

Appellate Tax Board; transfer of a complaint; county commissioners; fees 80 

Appropriation; biennial sessions; deficiencies 72 

Contracts for work for certain State institutions 42 

Fiscal year; statute 18 

Lapse after two years; Charles River Basin Improvements Fund . . 68 

Heirs of Anne McCann 70 

Legislative intent 30 

Auditor of the Commonwealth; Trustees of the Boston Elevated Railway 

Company; accounts 64 

Child Guardianship, Division of; custody of a child from another State 57 

Unsettled child; support; county training school 66 

Chiropodists; certificates; renewals 104 

Podiatrists; use of narcotic drugs 51 

Civil service; amendment of Rule 23 ; reinstatement; legislative function 101 
Classified positions; labor ser\'ice; employment of indigent persons by 

municipalities 43 

Domicile of applicant for appointment 80 

Emergency Finance Board; employees 65 

Emergency Public Works Commission; employees 99 

Industrial Accidents, Department of; medical adviser 44 

Labor and Industries, Department of; experts 56 

Maiden cemetery department; secretary 103 

Metropolitan District Commission; engineering consultants and their 

employees 112 

Metropolitan District Sewer Construction Commission; employees . 100 
Municipalities; acceptance by a town of G. L. (Ter. Ed.) c. 31 . 71 
Labor service ; probationary period ; date of emplojonent ... 94 
Local board of public welfare; appointment of prosecutor and investi- 
gator 98 

Separation from the ser\'ice; reinstatement 110 

Temporary appointment; renewal; duration of appointment ... 99 

Commonwealth; exchange of bonds; agreement 83 

Land; power to restrict use 93 

Conservation, Commissioner of; rule-making power; great ponds; State 

forests; fishing 34 

Contracts; bids; award; readvertising 77 

Breach; Federal regulations 13 

Subcontractors; general contractor 79 

County commissioners; grade crossings; takings 37 

Dental hygienist; dental practice; school 85 

Dentists; advertising; letters 26 

Electricians, State Examiners of ; power to appoint employees ... 49 

Facsimile stamp; signature of officer 41 

Fall River, Board of Finance of; laborers; pension 24 



P.D. 12. 



115 



PAGE 



stock ponds 



82 
82 
51, 58 
46 
79 
29 
37 
17 
34 



Federal aid ; grant; unexpended balance 

W. P. A. project 

First-aid stations; narcotic drugs; exempt preparations 
Fisheries and Game, Director of the Division of; power to 
Forest wardens ; term of office ; towns .... 
Funeral director; registration; school .... 
Grade crossings; county commissioners; takings 

Great ponds: airports 

State forests; fishing 

Hairdresvsers ; advertisement; rules 88 

Registration; hairdressing shops ; lease of space 16 

Instructors 15, 77 

Practice of occupation 60 

Regulations; prices 15 

Housing Authority Law; referendum provisions 96 

Industrial Accidents, Department of; control over a certain fund which is 

now subject to attachment Ill 

Medical ad\aser ; appointment ; civil serAdce 44 

Insanity, certificate of; phj^sician 48 

Insurance; accident and health companies; reduction of stock ... 56 

Contracts; warranties; sale of tires 39 

Foreign benefit society; by-laws 59 

Fraternal benefit order; death fund 53 

Group Ufe pohcy; beneficiarj^ 52 

Mutual benefit association; dissolution 35 

Land Court; recorder; fees 80 

Licenses; overnight camps; fees 75 

Local boards of health ; rules and regulations 76 

Sight-seeing automobiles 67 

Structures in the Charles River between Charles River Bridge and Wal- 

tham 99 

Lowell Textile Institute ; authority of trustees ; use of playgrounds ... 74 

Marine Fisheries, Supervisor of : permits to take shellfish .... 43 

Massachusetts Nautical School ; acceptance of vessel from the United States 78 
Metropolitan District Commission ; contracts ; award ; effect of a later statute 

upon an earlier statute 90 

Easements; authority to grant 107 

Vote; power to modify 14 

Workmen's compensation; legislative appropriation 107 

Municipalities; annexation; councillor and senatorial districts . . 13 

Appropriation ; money received from insurance 16 

Officer ; head of a fire department of a fire district 60 

Narcotic drugs; chiropodists and podiatrists 51 

First-aid stations and emergency rooms; exempt preparations . . 51,58 

National Guard; reserve officer; tour of duty 33 

Outdoor advertising; Department of Public Works; rules; highways; reser- 
vations 91 

Overnight camps; licenses; fees 75 

Local boards of health ; rules and regulations 76 

Parole Board ; Advisory Board of Pardons 86 

Plumbers; licenses; master plumbers; advertising 113 

Prisoners; females; indentures; two sentences 37 

Public liealth; frozen desserts; definitions; statute 27 

Narcotics; license; Federal regulation 30 

Public records; State Racing Commission 27 

Public Utilities, Department of ; sale of securities; delegation of authority . 19 
Public Welfare, Commissioner of; investigation of local boards of public 

welfare 105 



116 P.D. 12. 



Public Works, Department of; authority to name a bridge 
Savings bank life insurance; custody of certain funds .... 
Sight-seeing automobiles; temporary emergency licenses .... 
State buildings; Federal buildings; freedom from control by State Exam 

iners of Plumbers 

State employees; organized militia; absence with pay .... 

United States naval reserve; annual tour of duty; absence with pay . 

Vacations; suspension 

State laborers ; hours of work ; vacations 

State poUce officer; arrest; detention of prisoner 

State retirement system; Unemployment Compensation Administration 
Fund; pajanent of allowances 

Veterans of the Spanish and World Wars 

Trade union; employer; contract 

Unemployment Compensation Administration Fund; State retirement sys 
tem ; payment of allowances 

Workmen's compensation; legislative appropriation .... 
Workmen's compensation; public employee; salary ..'... 
Zoning laws ; building inspection laws 



PAGE 

108 
62 
67 

102 
87 

105 
53 

88 
89 

110 

109 

31 

110 

106 

40 

81 



P.D. 12. 117 



RULES OF PRACTICE 

In Intkkstate Rendition. 

E\ery application to the Governor for a requisition upon the executive authority 
of any other State or Territory, for the delivery up and return of any offender 
who has fled from the justice of this Commonwealth, must be made by the district 
or prosecuting attorney' for the county or district in which the offence was com- 
mitted, and must be in duplicate orighial papers, or certified copies thereof. 

The following must appear by the certificate of the district or prosecuting 
attorney : — 

(a) The full name of the person for whom extradition is asked, together with 
the name of the agent proposed, to be properly spelled. 

(b) That, in his opinion, the ends of public 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 cixdl 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 crmiinal proceedings shall not be used for any of said objects. 

(h) The nature of the crime charged, with a reference, when practicable, to 
the particular statute defining and punishing the same. 

(i) If the offence charged is not of recent occurrence, a satisfactory reason 
must be given for the delay in making the application. 

1. In all cases of fraud, false pretences, embezzlement or forgery, when made 
a crime by the common law, or any penal code or statute, the affidavit of the 
principal complaining witness or informant that the application is made in good 
faith, for tlie 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 \\'ill 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 affida\'it of facts and circumstances satisf}dng 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 
tliat the alleged criminal was in the State where the alleged crime was committed 
at the time of the commission thereof, and is found in the State upon which the 
requisition was made, shall be sufficient evidence, in the absence of other proof, 
that he is a fugitive from justice. 

3. If an indictment has been found, certified copies, in duplicate, must accom- 
pany the application. 

4. If an indictment has not been found by a grand jury, the facts and circum- 
stances showing the commission of the crime charged, and tliat 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 



118 P-D- 12- 

shown that a complauit has been made, copies of which must accompany the 
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 
affida\at 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 takmg the affidavits or depositions, and 
of the officer who issued the warrant, must be duly certified. 

6. Upon the renewal of an application, — for example, on the ground that 
the fugitive has fled to another State, not having been found in the State on which 
the first was granted, — new or certified copies of papers, in conformity with the 
above rules, must be furnished. 

7. In the case of any person who has been con\acted of any crune, 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 certffied 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 

S. No requisition will be made for the extradition of any fugitive except in 
compliance with these rules.