public Document No. 12
Cbe Commontoealtf) o( Massachusetts
REPORT
ATTORNEY GENERAL
Year ending November 30, 1941
r
Cfje CommontoealtJ) of Qia0$aci)U0ett0
DEPARTMENT OF THE ATTORNEY GENERAL
State House
Attorney General,
ROBERT T. BUSHNELL.
Assistants.
James E. Farley.
Frank G. Volpe.
Roger Clapp.
Jacob Leaviton.
J. Burke Sullivan.
Telesphore Leboeuf.-^
Joseph F. Bacigalupo.
James F. Meagher.
Sherman W. Saltmarsh.
William F. Hayes.
John DeCourcy.
H. Wells Kilbourne.
Harold E. Magnuson.
Joseph S. Rezendes.
Assistants assigned to Other State Dej)artments.
Joseph K. Collins.
Harry J. Greenblatt.
Thomas E. Key.
Frank F. Walters.
Director of Division of Collections.
W. Forbes Robertson.
Chief Law Clerk to the Attorney General.
Harold J. Welch.
List Clerk to the Attorney General.
James J. Kelleher.
Cl)e CommonUjealtJ) of ^mmtbn$ttt^
January 14, 1942.
To the Honorable Senate and House of Representatives.
I have the honor to transmit herewith the report of the Department of the
Attorney General for the year ending November SO, 1941, pursuant to the provi-
sions of General Laws (Ter. Ed.), chapter 12, section 11, as amended.
The pressure of additional duties placed upon this Department as a result of
war conditions makes it necessary for me to postpone until a later date as full a
summary of the legal business of the Commonwealth as I would ordinarily con-
sider pertinent in such a report.
A statement of appropriations and expenditures, the number of cases requiring
the attention of tliis Department during the period of the report, and the details
of capital cases, customarily included in such a report, appear on succeeding pages.
The statute requires also a statement of "his acts under section nine." Section 9
requires the Attorney General to give aid and advice when required by either
branch of the General Court "in the arrangement and preparation of legislative
documents" and to "give his opinion upon questions of law submitted to him by
the governor and council or by either branch of the general court." This section
also contains a requirement that the Attorney General "or some person designated
by him, shall, when requested by a vote of a legislative committee, appear before
such committee and advise it upon the legal effect of proposed legislation pending
before it."
The General Court was in session when I took office on January 15, 1941, and was
prorogued on October 31, 1941. During this period, the Department of the Attor-
ney General was constantly available to render such legal assistance as might be
required by either branch of the General Court and by the Governor.
On request, the Attorney General rendered forty written opinions to the Gover-
nor and eleven to legislative committees. The number of written opinions to
heads of executive departments was one liundred and twenty-nine, making a total
of one hundred and eighty written opinions rendered during the period covered
by this report. The preparation of such written opinions consumed a relatively
small proportion of the time expended by this Department in performing legal
services of the nature referred to in General Laws (Ter. Ed.), chapter 12, section 9.
No attempt has been made to keep a record either of time consumed or of subject
matters on which legal advice was sought at the innumerable conferences vn%\\
individual members of the Legislature and the executive departments in connec-
tion ■with pending or proposed legislation.
It has been my aim to place the administration of this Department on the
plane of a high-grade, efficiently run law office acting as legal adviser and attorney
to the president, directors and stockholders of the largest and most important
corporation in the Commonwealth.
In addition to required duties, the Attorney General, at the request of the
House Managers, undertook the task of actmg as counsel for the House of Repre-
sentatives in the trial of an impeachment voted by the House against one Daniel
4 P.D. 12.
H. Coakley, Governor's Councillor from the Fourth Councillor District. Trial
before the Senate, sitting as a high court of impeachment, began on August 5,
1941, and was completed on October 2, 1941, resulting in the removal of the re-
spondent and his disqualification from further holding public office under the
Commonwealth. This was the first time in over one hundred years that the Sen-
ate of Massachusetts had sat as a court of impeachment under the Constitution.
I think it appropriate to comment upon the manner in which this trial was con-
ducted by the Senate. None of the Senators, when standing for election, had
contemplated that the Senate would ever be called upon to sit as a court. Many
of the Senators were not lawyers and none had previously sat as judges.
When the articles of impeachment were reported by the House, the President
of the Senate appointed a committee to draft rules for the conduct of the trial.
The adoption by the Senate of the proposals of this committee as the Senate rules
for the conduct of the trial, indicated that the Senate would attempt to conduct
the trial in an orderly, judicial manner. The promise of an orderly, judicial pro-
ceeding, as indicated by the adoption of these rules, was fulfilled at the trial.
It is a source of pride for me to note that most of the members of the Massa-
chusetts Senate of 1941 followed the evidence closely, conducted themselves with
dignity, and were successful in their attempt to fill unaccustomed roles as judges
in a manner which would reflect credit upon the Commonwealth, the General
Court, and the Senate in particular.
I venture the comment that had the framers of the Constitution of 1780, under
which the Senate sat as a high court of impeachment, been able to witness the
manner in which the upper branch of the General Court performed its judicial
duties in 1941, they would have been satisfied that the confidence reposed in this
body had been justified.
The usual criticisms of impeachment trials, namely, that they are cumbersome,
that they consume an unnecessary amount of time, and that individual Senators,
either by incapacity or nonattendance, do not understand the evidence or the
issues, have little application to the trial of this impeachment by the Massachu-
setts Senate of 1941.
This trial proved that removal charges against a constitutional officer can be
tried effectively and properly before the Senate if that body is composed of high-
minded men earnestly striving to perform a judicial duty.
The House of Representatives also performed its constitutional function in a
manner which reflected the utmost credit on that body. After the House had
voted the articles of impeachment, the Speaker appointed a Board of Managers
of five members, composed of representatives of both political parties, to repre-
sent the House.
The members of this Board were men of the highest type and performed their
duties with the same scrupulous fidelity that characterized a majority of the
Senators. Their constant attendance at the trial, their understanding of the evi-
dence and the issues, and their availability for consultation and advice, were of
valuable assistance to me in acting as counsel for the House.
In the preparation and trial of the case, I was greatly assisted by several of my
assistants, who performed these services in addition to their normal duties. The
services of members of my staff and myself were, of course, performed without
compensation. As a result, the House Managers were able to avoid the payment
of large fees for special counsel, customary in such cases, and were able to confine
P.D. 12. 5
the expenses of their conduct of the trial to the extremely low total of Sll, 584.68.
This figure is not:v])le when compared with costs of prosecuting other impeach-
ment trials. For example, the House Managers paid S100,000 for counsel fees
alone in the impeachment trial of Governor Sulzer of New York in 1913.
As this report is written, the United States is in a state of war with Japan and
with Germany and Italy. It is a world-wide struggle, in which the life of demo-
cratic government is at stake. For a considerable period of time prior to the
declarations of war, on December 7, 1941, and December 10, 1941, this Depart-
ment had anticipated that extraordinary demands upon the legal structure of the
Commonwealth would follow such an emergency, and it had therefore been en-
gaged in a study of the laws relative to powers of the Executive and other branches
of the State and Federal governments under war conditions. The anticipated
demands upon this Department for legal advice under these conditions by all
departments of the State government have been fully realized, and this Depart-
ment has worked tirelessly not only to meet these demands but also to perform
the duties required of it in normal times.
During this war, the State government faces a task which will require the
fullest intelligence and capacity of all of its departments. As I view it, the State
government must, on the one hand, co-operate, without stint or limit, with the
Federal government in its conduct of the war. Neither local pride, individual
prejudices nor divergent views relative to the respective functions of Federal and
State governments must be permitted to interfere with the war effort of the United
States. The first and foremost task ahead of all of the States is the winning of
this war. On the other hand, it should not be forgotten that the obliteration of
the States as sovereign, legal entities could be an initial step in the destruction
of the American system of government.
I hope it will be possible for the Commonwealth, within the legal structure
governing the relationship of the States to the Federal government, to find and
hold a position which will permit it to contribute its full share to the national
war effort and to resume its position as a sovereign State after the war has been
brought to a successful conclusion. So long as I am responsible for the conduct
of this Department, such of its duties as bear upon the war and related problems
will be approached and performed with this object constantly in view.
Respectfully submitted,
ROBERT T. BUSHNELL,
Attorney General.
P.D. 12.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Fiscal Year.
General appropriation for 1941 .
Balance brought forward from 1940 appropriation
Transfer from extraordinary expenses
Appropriation for small claims . . ■ •
Appropriation under G. L. (Ter. Ed.) c. 12, § 3B
Total appropriation
Expendihires.
For salary of Attorney General
For salaries of assistants and others .
Incidentals .•■••■
For small claims .••■••
For claims under G. L. (Ter. Ed.) c. 12, § 3B .
Total expenditures
Balance ..•••••
Special Appropriations.
To recover unclaimed bank deposits . . • ■
Office renovation, Room 370 . . •
Balance from prior year:
Investigation of certain water rights .
Expenditures.
For recovery of unclaimed bank deposits .
For office renovation, Room 370 . • • •
Investigation of certain water rights . . • •
$146,625 03
2,116 63
103 79
5,000 00
8,000 00
$161,845 45
$8,000 00
128,276 49
12,273 94
1,078 44
7,248 18
$156,877 05
$4,968 40
$15,000 00
3,000 00
494 71
12,983 47
2,618 37
195 00
Financial statement verified.
WALTER S. MORGAN,
Comptroller.
P.D. 12.
CASES REQUIRING ATTENTION.
The cases requiring the attention of this Department during the fiscal year
ending November 30, 1941, totalling 12,568, are tabulated as follows: —
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 Conservation
Metropolitan District Commission
Metropolitan District Water Supply Commission
Miscellaneous cases ......
Petitions for instructions under inheritance tax laws
Public charitable trusts .....
Settlement cases for support of persons in State hospitals
Pardons:
Investigations and recommendations in accordance with G. L. (Ter. Ed.)
c. 127, § 152, as amended
Workmen's Compensation cases, first reports
Cases in behalf of Milk Control Board
Cases in behalf of Division of Unemployment Compensation, now Division of
Employment Security .........
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 .......... 14
Pending ........... 6
1,044
95
89
166
2
41
119
1,265
41
552
34
55
2,538
105
1,272
5,150
20
P.D. 12
DETAILS OF CAPITAL CASES.
1. Disposition of indictments pending Nov. 30, 1940:
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; Feb. 10, 1941,
retracted former plea and pleaded guilty to murder in the second degree, which plea
was accepted; thereupon sentenced to State Prison for life.
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; Feb. 4, 1941, retracted former plea and pleaded
guilty to manslaughter, which plea was accepted; thereupon committed to Depart-
ment for Defective Delinquents at Bridgewater.
Southeastern District (in charge of District Attorney Edmund R. Delving).
Joseph Brooks, alias.
Indicted in Norfolk County. May, 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; Feb. 27, 1941, rescript "Judgment
affirmed"; May 6, 1941. sentence carried out.
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;
Feb ''1 1941, retracted former plea and pleaded guilty to murder in the second
degree, which plea was accepted; thereupon sentenced to State Prison for life.
Southern District (in charge of District Attorney William C. Crossley).
Frank Pedro.
Indicted in Bristol County, November, 1940, for the murder of Irene Perry; arraigned
Nov. 18, 1940, and pleaded not guilty; trial May, 1941; verdict of not guilty.
Suffolk District (Suffolk County case: in charge of District Attorney William J.
Foley).
James Preston.
Indicted December, 1937. for the murder of Louis Gaeta, on Nov. 23, 1937; ar-
raigned May 21. 1941. and pleaded not guilty; trial July. 1941; durmg 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 ten years.
P.D. 12. 9
Western District (in charge of District Attorney Thomas F. Moriart)').
Angelo Rossetti.
Indicted in Hampden County, September, 1940, for the murder of Joseph FasoH,
at Southwick, on Aug. 27, 1940; arraigned Sept. 19, 1940, and pleaded not guilty;
Feb. 24, 1941, retracted former plea and pleaded guilty to murder in the second
degree, which plea was accepted; thereupon sentenced to State Prison for life.
2. Indictments found and dispositions since Nov. 30, 19-40:
Northern District (Middlesex County cases: in charge of District Attorney Robert F.
Bradford) .
John C. Crowley, alias.
Indicted March, 1941, for the murder of Adelaide Crowley, alias, and Martha Querze,
on Feb. 11, 1941, at Cambridge; arraigned March 10, 1941, and pleaded not guilty;
June 20, 1941, retracted former plea and pleaded guilty to murder in the second
degree, which plea was accepted; thereupon sentenced to State Prison for life.
Southern District (in charge of District Attorney William C. Crossley).
Frank Milton Hart and Ernest Ward.
Indicted in Bristol County, February, 1941, for the murder of Bertha M. Harwood,
at New Bedford; defendant Hart arraigned Feb. 12, 1941, and pleaded not guilty;
trial May, 1941; verdict of guilty of manslaughter; defendant Ward arraigned
Feb. 13, 1941, and pleaded not guilty; May 5, 1941, retracted former plea and
pleaded guilty to manslaugher, which plea was accepted; each defendant was
sentenced to State Prison for not more than ten years nor less than eight years.
Suffolk District (Suffolk County cases: in charge of District Attorney William J.
Foley).
John E. Flynn.
Indicted April, 1941, for the murder of Edith Rossetti, on Feb. 24, 1941; arraigned
April 23, 1941, and pleaded not guilty; trial June, 1941; verdict guilty of man-
slaughter; thereupon sentenced to State Prison for not more than twenty years
and not less than eighteen years.
Herbert W. Head.
Indicted July, 1941, for the murder of Jane Carlton, on May 16, 1941; arraigned
Aug. 4, 1941, and pleaded not guilty; trial October, 1941; 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.
Edward E. King.
Indicted November, 1941, for the murder of Mary T. King, on Oct. 25, 1941; Dec. 8,
1941, adjudged insane and committed to Boston State Hospital.
Ruth Steadman.
Indicted March, 1941, for the murder of Robert Emery, on Jan. 21, 1941; arraigned
March 20, 1941, and pleaded not guilty; trial May, 1941, during the trial retracted
former plea and pleaded guilty to manslaughter, which plea was accepted; there-
upon sentenced to fifteen years in the Reformatory for Women.
Martin J. Walsh.
Indicted June, 1941, for the murder of Joaquin L. Monteiro, on May 7, 1941; ar-
raigned June 23, 1941, and pleaded not guilty; trial October, 1941; 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 fifteen years.
P.D. 12.
10
3 Pending indictments and status:
Northern District (Middlesex County cases: in charge of District Attorney Robert F.
Bradford).
Paul Giacomazza. James H. Nickerson and William L. Lenehan.
Indicted May. 1941. for the murder of Oscar E. Thomas, on Sept. 9. 1940. at Melrose;
arraigned May 22. 1941. and each pleaded not guilty.
Adam J. Mikallkawech.
Indicted June. 1941. for the murder of Henry Sledz. on June 15. 1941. at Cambridge;
arraigned June 26, 1941. and pleaded not guilty.
George K. Sampatakakis.
Indicted September. 1941, for the murder of Peter Apostolakas. on July 30. 1941. at
Lowell; arraigned Sept. 8. 1941. and pleaded not guilty.
Leo F. Smith.
Indicted September, 1941. for the murder of Joseph A. Stat., on July 4. 1941. at
SomerviUe; arraigned Sept. 12. 1941. and pleaded not guilty.
Raymond L. Woodward, Junior.
death by electrocution.
Suflolk District (Suffolk County c,^: in cl,arge of District Attorney William J.
Foley).
Hazel Barber. .
Indicted June. 1941. for the murder of Max Hessel, on May 7. 1941; arraigned June
27, 1941. and pleaded not guilty.
P.D. 12. 11
OPINIONS.
Metropolitan District Water Supply Commission — Employee — Retirement.
Feb. 1, 1941.
Metropolitan District Water Supply Commission.
Gentlemen : — You have requested my opinion as to whether under
G. L. (Ter. Ed.) c. 32, § 57, you may in your discretion retire an employee
under the following circumstances : —
"This employee has been conjSned to his home with heart trouble since
January 2, 1941, and has been in our employ since February 16, 1927. He
worked as a draftsman from 1927 to November 1, 1935, as senior engineer-
ing draftsman to June 1, 1939, and as senior civil engineer since that date.
In addition this man is a veteran of the World War and is forty-six years
of age."
G. L. (Ter. Ed.) c. 32, § 57, reads as follows: —
"A veteran who has been in the service of the commonwealth, or of any
county, city, town or district thereof, for a total period of ten years, may,
upon petition to the retiring authority, be retired, in the discretion of said
authority, from active service, at one half the regular rate of compensation
paid to him at the time of retirement, and payable from the same source,
if he is found by said authority to have become incapacitated for active
service; provided, that he has a total income, from all sources, exclusive of
such retirement allowance and of any sum received from the government
of the United States as a pension for war service, not exceeding five hun-
dred dollars."
The original statute establishing the Metropolitan District Water Sup-
ply Commission and defining its powers provided for the Commission's
appointment of engineers and other assistants, subject to a procedure out-
lined in the statute. St. 1926, c. 375, § 2. This act contained no specific
reference to the applicability of general retirement or pension laws to em-
ployees so appointed by the Commission.
The statute originally creating the Commission was amended by St.
1927, c. 321, which specifically provided in section 3 that "none of the em-
ployees of the commission, whether appointed before or after the effective
date of this act, shall become members of the state retirement system, but
those who are members thereof at the time of their employment may be
continued therein."
I assume from the information which you have furnished that the em-
ployee in question was not a member of the State retirement system at the
time of his employment by your Commission, and this opinion is based
upon that assumption.
It is my opinion that the phrase "state retirement system," appearing
in section 3 of chapter 321 of the Acts of 1927, was intended to refer to the
"State Retirement System" described and provided for in G. L. c. 32,
§§ 1-5, inclusive, and that the statute was not intended to exclude em-
ployees of the Commission from the benefits of pension and retirement
provisions contained in G, L. c. 32, § 57.
Employees of the Metropolitan District Water Supply Commission were
similarly excluded from membership in the State retirement system, with
P.D. 12.
qualifications not material to the situation concerning which i'O^J^^^^^'
hv St 1938 c 439, which substantially revised G. L. c. di. See »t. i»i»,
. «q 5 2 cldl) However, this revision did not purport to destroy the
rigte'ofenjployei, such as the one you have described, to retire or to be
"*l"?n:l"rio: fhTem^byl des'^cribcf bl you may be retired provided
th cqu'^^sT" oLuTons pi-escribed by section 57 arc '"""^ *» -1^*^ "^"^ y;
hat he has become incapacitated for active service and that he has a tota
that ne "»° ';'<:^"' / , j^^^e of such retirement allowance and of any
r":ce[«dtSX'g:v:™ient of the United States ^ a pension for
wcr QPrvipp not exceeding five hundred dollars.
I am also of thropinion that the employee in question has been m the
sei^S of the commonwealth'' and that the appropriate retirmg authority
is the governor. See G. L. c. 32, § 59.
Verv truly yours, _ ,
Robert T. Bushnell, Attorney General.
Motor Fuel Sales Act - Distributor - Posttng of Trade Name or Mark.
Feb. 10, 1941.
Hon James T. Moriarty, Commissioner of Labor and Industries.
Dear Sir:-You ask my opinion -/-/.^J^^^f^'^Pf ^^^^^^
c. 94, § 295F, which was enacted as part of St. 1939, c. 45y. mat ^ec
tion reads as follows : — . t \
''All above-ground equipment for storing or dispensing motor tuel
the name of the manufacturer and the words No Brand.
Yonr sDecific question is "whether the brand name or trade-mark ap-
desires."
You state that — , j r +
-It is the practice of some retail dealers to buy a known brand of motor
'-' °OtltVfei:Jitn"t^^^^^^^^^^
X^ Ich r;ta7Se:ferhrdcveloped over a period of^year. n some
'^:\:V^SK^^:^^^^ ehan.es are
effected in the commodity by the retail dealer.
"^1 which I submit herein is based upon that assumption,
opinion whicn i sudiuu iieicin t o Q4 S 295F do not require
Pjn my opinion the P^'S^ns of ^ L. c^ 94, ^§^^^^^^^^ ^q^,^_
stCn equipterotSd by rrtil dealer for the dispensing of mo-
P.D. 12. 13
tor fuel or lubricating oil. This interpretation is not only consistent with
the language of section 295F, but it finds support in the language of sec-
tion 295G, which provides in part: —
"... No retail dealer shall adulterate or permit the adulteration of
any motor fuel or lubricating oil offered for sale or sold under a brand
name or trade-mark or distinguishing mark of the manufacturer or dis-
tributor of said products, or substitute or permit the substitution of any
other motor fuel or lubricating oil therefor. No retail dealer shall sell or
dispense, or offer to sell or dispense, from any pump, tank or other dis-
pensing device or container any motor fuel or lubricating oil other than
that indicated by the name, trade name, trade-mark, symbol, sign or
other distinguishing mark of the manufacturer or distributor of said prod-
uct, if any, appearing on said pump, tank or other dispensing device or
container."
This latter section, by the use of the words "manufacturer or distribu-
tor," indicates a clear legislative intent to permit the posting of the trade
name or trade-mark of a distributor other than the manufacturer on dis-
pensing equipment of the type described in the statute. It is a cardinal
principle of statutory construction that the several sections of a statute
must be given a meaning which renders them harmonious and not contra-
dictory, and which gives practical effect to all the words in the statute.
A construction of chapter 94, section 295F, requiring the dispensing
equipment to bear the brand name or trade-mark of manufacturers only,
would render that section inconsistent with section 295G. Such a con-
struction could not be sustained.
The term "distributor" appearing in section 295G is not defined in the
motor fuel sales act (G. L. c. 94, §§ 295A-0, inc.), and in my opinion the
language of the statute is broad enough to include retail dealers of the
type described in your letter. I am of the opinion that if a retail dealer
chooses to market motor fuel or lubricating oil under a trade name or
trade-mark lawfully adopted and applied by him to those products, the
posting of such trade name or trade-mark on the dispensing equipment
operated by him would constitute compliance with that aspect of section
295F. The validity of a given trade name or trade-mark as applied to
such products by a retail dealer would, of course, depend on principles of
law applicable to trade names and trade-marks generally.
Very truly yours,
Robert T. Bushnell, Attorney General.
Licenses — Trailer Camps — Hearings.
Feb. 13, 1941.
Dr. Paul J. Jakmauh, Commissioner of Public Health.
Dear Sir: — You have requested my opinion as to whether or not
under chapter 416 of the Acts of 1939 local boards of health are required
to hold hearings on applications for licenses for 1941 for trailer camps
which were licensed for 1940, which latter licenses have not been revoked
or suspended.
, I am of the opinion that the statutory requirement of notice and hear-
ing applies to such applications for what might be referred to as renewal
licenses.
14 P.D. 12.
G. L. c. 140, § 32B, which was inserted by St. 1939, c. 416, provides
that: —
"The board of health of any city or town, in each instance after notice
and a hearing, may grant, and may suspend or revoke, hcenses for recre-
ational camps, overnight camps or cabins or trailer camps located within
such city or town, which license, unless previously suspended or revoked,
shall expire on December thirty-first in the year of issue. ..."
The foregoing language is specific as to the expiration date of the licenses
issued under its authority, and is also explicit in providing that the board
of health may grant licenses "in each instance after notice and a hearing."
Very truly yours,
Robert T. Bushnell, Attorney General.
State Superintendent of Buildings — Limitation of A uthority over State
Departments.
Feb. 14, 1941.
Mr. GusTAVE W. Everberg, State Superintendent of Buildings.
Dear Sir: — In a recent letter you state that the Metropolitan District
Water Supply Commission has terminated its use of office space in the
Metropolitan District Building at No. 20 Somerset Street, Boston, and
that the Metropolitan District Commission has requested you to assign
another agency of the State government to occupy the premises being
vacated by the Water Supply Commission. You request my opinion as to
what obligation, if any, rests upon you to assign State departments to
space in the Metropolitan District Building upon the request of the
Metropolitan District Commission.
I assume that your inquiry is directed to the question of your requiring
State departments to become tenants of the Metropolitan District Build-
ing, rather than to the matter of your making assignments of rooms which
are actually occupied by State departments in that building.
The Metropolitan District Building was constructed by the Metro-
politan District Commission pursuant to authority granted therefor by
St. 1929, c. 362, That statute provided in section 3 that —
"All the space suitable for office purposes and not used for metropolitan
district activities under the control of the commission or of any division
thereof in any building constructed or acquired for their use shall be
leased or rented to the commonwealth at fair market rates for equivalent
spaces in privately owned buildings; provided, that said rates shall be
at least sufficient to cover the same ratio of the costs for mamtenance
and upkeep of the building and of a fair return for interest and deprecia-
tion on the investment of the metropohtan districts in said building as
the space therein leased or rented to the commonwealth bears to the
whole building."
While the quoted section imposes an obligation upon the Metropolitan
District Commission to rent or lease unoccupied space to the Common-
wealth, it is my opinion that it imposes no obligation upon the State
Superintendent of IBuildings to require any State department to occupy
vacant space in the Metropolitan District Building. The duties of the
State Superintendent of Buildings with respect to the assignment of
rooms are defined in G. L. c. 8, § 10, as amended by St. 1938, c. 249, § 4.
The pertinent provisions of this section read as follows : —
P.D. 12. 15
"He shall, under the supervision of the governor and council, assign
the rooms in the state house and rooms elsewhere used by the common-
wealth, and may determine the occupancy thereof in such manner as the
public service may require; provided, that the executive and adminis-
trative departments of the commonwealth shall be provided with suitable
quarters Avhich shall, so far as is expedient, be in the state house; . . ."
In my opinion the space in the Metropolitan District Building being
vacated by the Metropolitan District Water Supply Commission does not
come within the phrase "rooms elsewhere used by the commonwealth."
Consequently you are not required by G. L. c. 8, § 10, as amended, to
assign any State department to that space.
In my opinion the question whether any State department, commission
or board shall rent or lease space in the Metropolitan District Building is
not to be determined by you, but rather is to be determined by the head
of that department, commission or board, in accordance with the provi-
sions of G. L. c. 8, § lOA, as amended by St. 1933, c. 170. Your duties
under this statute are limited to the approval or disapproval of action
initiated by a head of a State department, commission or board.
Very truly yours,
Robert T. Bushnell, Attorney General.
Motor Vehicle — "Bulldozers" — Definition.
Feb. 14, 1941.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You have requested my opinion as to whether "bull-
dozers," so called, when used for snow removal purposes on the highways,
are to be regarded as "motor vehicles" as that term is defined in G. L.
c. 90, § 1, as amended by St. 1938, c. 36. The pertinent portion of the
section in question reads as follows : —
"The following words used in this chapter shall have the following mean-
ings, unless a different meaning is clearly apparent from the language or
context, or unless such construction is inconsistent with the manifest in-
tention of the legislature : —
'Motor vehicles', automobiles, semi-trailer units, motor cycles and all
other vehicles propelled by power other than muscular power, except rail-
road and railway cars, vehicles operated by the system known as trolley
motor or trackless trolley under chapter one hundred and sixty-three, and
motor vehicles running only upon rails or tracks, road rollers, street
sprinklers, snow loaders, power excavators, power graders, concrete mixers
and wheel-chairs owned and operated by invalids.
))
A bulldozer, being a vehicle "propelled by power other than muscular
power," must be regarded as a "motor vehicle" within the meaning of
chapter 90, section 1, unless it is included within the exceptions set forth
in the paragraph quoted above.
It has been suggested that a bulldozer may be regarded as a "power
grader" and thereby excepted from the statutory definition of "motor
vehicle." Bearmg upon this suggestion you have, in requesting my
opinion, submitted the following statements of pertinent facts: —
10 P.D. 12.
"Several years ago, there began to appear a type of motor propelled
vehicle known in the trade as a 'bulldozer.' This is a tractor to the front
end of which has been attached a heavy blade. The essential use of the
vehicle is for moving and leveUng earth. During the past several winters,
more and more of these vehicles have been used for plowing snow on the
highways. ... ^ r^ ■ • j
In the commercial motor vehicle trade, a distinct difference is recognized
between the two types of vehicles. The words bulldozer and power grader
are never used interchangeably. At the time that power graders were
included among the vehicles exempt by definition from the operation of
the motor vehicle law, which was in 1929, no vehicle of the type now
known as bulldozer was in use. The vehicle known as a power grader
has affixed beneath the body and between the front and rear axles an
oblique blade. ..."
Youliave further stated that when power graders were excepted in the
definition of motor vehicles the power graders then in use were incapable
of high speed and were "used practically exclusively in work on highways
under construction, from which the public were wholly or partially barred."
The question upon which you have requested my opinion is to a great
extent dependent upon the similarities or dissimilarities between power
graders and bulldozers. On the basis of the factual data submitted by
you, it is my opinion that bulldozers, when used for snow removal purposes
on the highways, are motor vehicles within the definition of that term con-
tained in chapter 90, section 1, as amended.
Very truly yours,
Robert T. Bushnell, Attorney General
Board of Registration in Medicine — Limitation of Authority —
Investiqations.
Feb. 17, 1941.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — I am in receipt from you of a request by the Board
of Registration in Medicine in effect asking my opinion as to said Board's
authority to conduct an investigation in the nature of a general inquest
or inquiry concerning the practice of medicine by registered physicians
who are aliens, and of alleged violations of G. L. (Ter. Ed.) c. 112, § 8,
with relation to the recording of certificates of registration.
Your letter states that no specific complaints of violation of the law
by individuals have been made to the Board but that complaints of a
general nature, relative to the possible existence of improper practices or
conduct in connection with the foregoing matters, have been expressed
in a general fashion. _ . i i • i
You also state that a request for an appropriation for additional clerical
help, to enable the Board to carry on an investigation with relation to
such violations of section 8, has been refused by the legislative depart-
ment upon the ground that the Board has no authority to carry on such
an investigation. ,,.,.. i j r v.
In my opinion the ground set forth by the legislative body for such
refusal is a correct statement of the law.
Although section 5 of said chapter 112 provides: —
"The board shall investigate all complaints of the violation of any pro-
vision of sections two to twenty-three, inclusive, or of section sixty-five.
P.D. 12. 17
so far as it relates to medicine or chiropody, and report the same to the
proper prosecuting officers." —
no specific authority is given to the Board in any part of the appHcable
chapter to conduct, upon its own initiative, general inquiries or investiga-
tions concerning possible violations of the law. It appears to have been
the intent of the Legislature, as expressed in said section 5 and in the
whole context of the apphcable statute, to vest power in the Board to
investigate and to take appropriate action upon complaints actually and
specifically presented to it in regard to individual persons or matters.
The Board sits as a quasi-judicial body, both in passing upon matters
properly before it for action and in determining whether there is sufficient
cause to justify the reporting of any complaint made under said section 5
to the appropriate law-enforcing officers. It was not the intent of the
Legislature, as expressed in the context of said chapter 112, that the Board
should act as an investigating and prosecuting officer to originate com-
plaints itself and also as a quasi-judicial tribunal to pass upon such com-
plaints. See V Op. Atty. Gen. 732.
I am of the opinion that your Board has no authority to make the
investigation mentioned in your letter. If it is thought desirable that the
Board should be given powers of general investigation concerning the con-
duct of registrants or others connected with the practice of medicine,
application should be made to the present General Court for the grant to
the Board of specific authority in this respect.
Very truly yours,
Robert T. Bushnell, Attorney General.
Commissioner of Education — Higher Education for Children of Deceased
Soldiers and Sailors.
Feb. 19, 1941.
Hon. Walter F. Downey, Commissioner of Education.
Dear Sir : — In a recent communication you asked my opinion, with
relation to St. 1930, c. 263, as amended, entitled "An Act providing higher
educational opportunities for the children of Massachusetts men who died
in the military or naval service of the United States during the World
War, or as a result of such service," upon the two following questions: —
"1. Does the term 'higher education' as used in section 1 signify an
education higher than that normally provided, from public moneys, to all
children who are residents of Massachusetts, namely, a four-year high
school education?
2. If the answer to the above is in the affirmative, would the Commis-
sioner be acting in accordance with the statute in approving only those
educational institutions whose requirements for admission include gradua-
tion from a four-year high school course or its equivalent?"
Said chapter 263, as amended by St. 1938, c. 428, reads: —
"Section 1. The commonwealth, acting through the department of
education, may contribute toward the expenses of the higher education
of any child, resident in the commonwealth and not under sixteen years
and not over twenty-two years of age, whose father or mother entered the
military or naval service of the United States from Massachusetts in the
world war and was killed in action or died from other cause as a result of
such service."
18 P.D. 12.
It is plain that by the phrase "the higher education of any child . . . not
under sixteen years and not over twenty-two years of age" the Legislature
intended to indicate a course or courses of study of a more advanced or
more highly specialized character than those offered by the ordinary high
school curriculum. The statute is not one which should be construed nar-
rowly and it cannot well be said that only courses given in educational
institutions which require graduation from a high school or its equivalent,
as a prerequisite to admission, are within the meaning of the enactment.
Some courses of study may be more advanced or more highly specialized
than those of the high school and yet may be pursued with profit to the
pupil even without the particular preliminary training afforded by a high
school.
In any particular instance, where reimbursement for educational ex-
penses is under consideration, it is for the Commissioner to determine,
in the exercise of sound judgment, whether a child is in fact receiving a
more advanced or more highly specialized form of education than that
to be gained in the ordinary high school, irrespective of any specific re-
quirement as to actual preliminary schooling by the institution where the
child studies.
The foregoing considerations impel me to answer your first question in
the affirmative and your second question in the negative.
Very truly yours,
Robert T. Bushnell, Attorney General.
Governor — ^ Commander in Chief — Orders — Compensation of Officer of
Militia.
Feb. 19, 1941.
Hon. Patrick J. Moynihan, Chairman, Commission on Administration
and Finance.
Dear Sir: — In a recent letter you have directed my attention to an
order issued by the Governor as Commander in Chief of the organized
militia of the Commonwealth, directing an officer of the National Guard
to proceed to Fort Benning, Georgia, for a period of training. Your letter
states in effect that such officer will receive pay from the Federal Govern-
ment during the period of training.
In my opinion it is immaterial that the officer is to be paid by the Federal
Government for his services while undergoing such training. It appears
from the statements in your letter that the officer whose case is now before
me has not been inducted into the Federal service. That being so, in
attending at Fort Benning he is, as a member of the organized militia,
obeying an order of the Commander in Chief issued under the provisions
of G. L. (Ter. Ed.) c. 33, § 11, as most recently amended. This officer's
service falls squarely within the provisions of G. L. (Ter. Ed.) c. 33, § 54,
as amended. Under the principles of law set forth in an opinion given by
my predecessor to the Adjutant General, on November 6, 1939, and in a
similar opinion to the Commissioner of Public Works, dated January 26,
1940, this officer is entitled to receive his compensation from the State
department in which he is employed during the period of his military
service under the terms of such order of the Commander in Chief.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 19
Board of Registration of Barhefs — Limitation of Authority — Barbers in
Federal Camps — Barbers in State Institutions.
Feb. 20, 1941.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — I am in receipt through you of the following request
for an opinion with relation to the Board of Registration of Barbers : —
"1. Does the board have the power to enforce the Massachusetts Bar-
ber Registration Law as set forth in General Laws, chapter 112, sections
87F and 87S with reference to men who are rendering barbering services
to enlisted men, officers and civilian employees in camps and cantonments
located within the limits of the Commonwealth of Massachusetts?
2. Does the board have the power to enforce the Barber Registration
Law as set forth in chapter 112, sections 87F to 87S with reference to per-
sons rendering barbering services to inmates and employees in state, county
and municipal institutions located within the Commonwealth?"
1. While persons are rendering barbering services to enlisted men and
others in camps and cantonments under the charge of officers of the Fed-
eral Government or of those of the organized militia of the Commonwealth
and are subject to the direction and control of such officers, they are not
subject to the provisions of G. L. (Ter. Ed.) c. 112, §§ 87F to 87S, as
amended. Accordingly, I answer your first question in the negative.
2. In like manner, persons who are rendering barbering services to in-
mates and employees in state, county and municipal institutions under the
charge of officers of the state or its political subdivisions, and are them-
selves subject to the direction and control of such officers, are not subject
to the provisions of G. L. (Ter. Ed.) c. 112, §§ 87F to 87S, as amended,
and I answer your second question in the negative.
As a general principle of law, an individual falhng within the definition
of "barber," as set forth in said section 87F, as amended, is himself sub-
ject to the provisions of said chapter 112, §§ 87F to 87S, in so far as he
carries on business with the general pubHc, but when he performs acts of
barbering within places or institutions, where he deals only with persons
under the direct control of officers of the government and is himself sub-
ject to such control, he is not subject to the regulations of said provisions.
See Milk Control Board v. Gosselin's Dairy, 16 N. E. (2d), 642. Teasdale v.
Newell, etc., Construction Co., 192 Mass. 440; Attorney General's Report,
1935, p. 38; ibid. 1932, p. 86; I Op. Atty. Gen. 290; II Op. Atty. Gen. 56,
399.
Very truly yours,
Robert T. Bushnell, Attorney General.
Board of Registration in Medicine — Limitation of A uthority —
Examinations.
Feb. 20, 1941.
. Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — I am in receipt through you of a request from the
Board of Registration in Medicine for an opinion as to the validity of the
following proposal for a ruhng by the Board. The proposed rule is as
follows : —
"An applicant for registration as a qualified phj'sician who has failed
to pass the examination satisfactory to the board and who has exhausted
20 P.D. 12.
his privilege under his original application, shall not be readmitted to
examination within one year after the latest examination for which he was
eligible under his original application."
Your letter states the circumstances giving rise to the proposed rule,
that candidates at present who fail to pass the examination may repeat
indefinitely ; that some candidates have taken the examination over twenty
times without passing, and that it is the desire of the Board to check, if
possible, the waste involved in such a procedure. It is further stated that
about one-half of the candidates taking examinations at the present time
are repeaters, many of them for the second or third time. It is suggested
that the Board desires, if possible, to give them more opportunity for
preparation before admitting them to examination.
Regardless of the salutary objectives the adoption of such a rule by the
Board of Registration in Medicine might achieve, in my opinion the Board
is without authority to make the proposed rule. The Legislature has
seen fit to lay down by statute the rules and regulations governing this
subject matter. G. L. (Ter. Ed.) c. 112, § 2, so far as is material here,
provides : —
"Applications for registration as qualified physicians, signed and sworn
to by the applicants, shall be made upon blanks furnished by the board
of registration in medicine, herein and in sections three to twenty-three,
inclusive, called the board. Each applicant, who shall furnish the board
with satisfactory proof that he is twenty-one or over and of good moral
character, that he possesses the educational qualifications required for
graduation from a public high school, and that he has received the degree
of doctor of medicine, or its equivalent, either from a legally chartered
medical school having the power to confer degrees in medicine, which gives
a full four years' course of instruction of not less than thirty-six weeks in
each year, or from any legally chartered medical school having such power,
if such applicant was, on March tenth, nineteen hundred and seventeen,
a matriculant thereof, shall, upon payment of twenty-five dollars, be exam-
ined, and, if found qualified by the board, be registered as a qualified phy-
sician and entitled to a certificate in testimony thereof, signed by the
chairman and secretary. An applicant failing to pass an examination
satisfactory to the board shall be entitled within one year thereafter to a
re-examination at a meeting of the board called for the examination of
applicants, upon payment of a further fee of three dollars; but two such
re-examinations shall exhaust his privilege under his original applica-
tion. ..."
It was evidently the intent of the Legislature to cover the entire field
by this statute. No specific authority has been given to the Board of
Registration in Medicine to alter or amend the rules fixed by the legisla-
tive body. Without such authority, it is my opinion that the Board has
no power to make further rules limiting or extending the statutory speci-
fications. The proposed rule would, if adopted, be an attempt to enter
the legislative field. If the Board of Registration in Medicine considers
that the public interest requires such modifications of the statute, I would
suggest that the Board present the matter to the General Court now in
session for specific legislation in that regard.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 21
Superintendent of State Hospittd — Board of Trustees — Appointment of
Steward — Approval.
Feb. 20, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — I am in receipt from you of the following communica-
tion : —
"There is an acting superintendent at the Worcester State Hospital.
A requisition has been received at this office for the appointment of a
steward, signed by the acting superintendent, but not signed or approved
by the Commissioner of Mental Health.
I understand the Board of Trustees of the Worcester State Hospital
made this appointment.
I would like an opinion as to whether an appointment by the Board
of Trustees, approved by the acting superintendent, but not by the Com-
missioner of Mental Health, is legal and whether or not I can accept it
as a valid appointment under the discretion given me by G. L., c. 31, § 42."
The portion of the statute concerning state hospitals, uinler which
authority to appoint stewards, among other employees, is conferred (G. L.
[Ter. Ed.] c. 123, § 28, as amended by St. 1938, c. 486, § 12) reads: —
"... The superintendent (of a state hospital), with the approval of
the trustees, shall appoint and may remove assistant physicians and nec-
essary subordinate officers and other persons. . . ."
The appointment of a steward of a state hospital as such is not specifi-
cally mentioned in the statutes but, as I have already indicated, such a
steward is comprehended by the phrase "necessary subordinate officers
and other persons" in the above-quoted portion of said section 28.
No approval of such an appointment by the Commissioner of Mental
Health either specifically or by implication is required by the statute.
The language of said section 28, as above quoted, is, however, explicit
that such an appointment is to be made by the superintendent of a state
hospital and is to be approved by the board of trustees of the hospital.
The appointment "by the Board of Trustees" about which you inquire
in your letter does not meet the requirements of the statute and is not
valid. Attorney General's Report, 1938, p. 124.
Very truly yours,
Robert T. Bushnell, Attorney General.
Board of Examiners of Plumbers — Town Ordinance relative to Plumbing —
Limitations of Municipal Authority.
March 3, 1941.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — At the request of the State Board of Examiners of
Plumbers you have asked my opinion as to the legality of the action of
the town of Barnstable in purporting to adopt, on March 5, 1935, a certain
town ordinance relative to plumbing. You state that in 1911 the board
of health of the town of Barnstable made application to the State Board
of Examiners of Plumbers for a set of rules and regulations for plumbers,
in accordance with the provisions of G. L. c. 142, § 8 (then St. 1909,
c. 536, § 5) ; that a set of rules was furnished by said Board of Examiners
and that, after compliance with the requirements of section 8, the rules
22 P.D. 12.
went into effect on December 2, 1911. You inform me that minor revisions
have subsequently been made by' the Board of Examiners, with the ap-
proval of the Department of Public Health.
In my opinion the town of Barnstable acted in excess of its lawful
authority in purporting to adopt the town ordinance relative to plumbing
to which you referred in your letter.
G. L. c. 142, § 8, enacted by St. 1909, c. 536, § 5, reads as follows: —
"Upon petition of the board of health of any town which has not pre-
scribed regulations relative to plumbing under section thirteen or corre-
sponding provisions of earlier laws, the examiners (board of examiners)
shall formulate rules relative to the construction, alteration, repair and
inspection of all plumbing work within such town, which rules, when
approved by the department of public health and accepted by the said
board of health and published once a week for three consecutive weeks in
some newspaper published in said town,, shall have the force of law.
Such rules may be revised by the examiners upon petition of the board
of health."
From the information contained in your letter I assume that all the
requirements of section 8 were complied with whereby the rules formu-
lated by the Board of Examiners acquired the force of law. By virtue
of G. L. c. 142, § 2, the acceptance of these rules by the town of Barn-
stable automatically made applicable to that town the provisions of G. L.
c. 142, §§ 1, 3, 6, 7, 9, 11, 12, 14, 15 and 16, all of which concern the super-
vison and regulation of plumbing. These sections of the statute, taken
in conjunction with the rules formulated by the Board of Examiners at
the request of the Barnstable board of health, constituted a comprehen-
sive treatment of the matter and deprived the town of Barnstable of
authority to deal with it further by ordinance. This conclusion follows
from the general principle of law that where a subject matter has been
fully dealt with by legislation, a by-law of a town dealing further or
otherwise with that subject matter is "repugnant to law" and is invalid.
See Commonwealth v. Baronas, 285 Mass. 321, 322.
The fact that the Legislature regarded as unnecessary and undesirable
the promulgation of additional or different plumbing regulations by a
town which accepted rules promulgated by the Board of Examiners is
demonstrated (1) by the last sentence in G. L. c. 142, § 8, which provides
that the rules promulgated by the Board of Examiners may be revised
by them on petition of the board of health of such town, and (2) by the
last sentence in G. L. c. 142, § 2, specifically making inapplicable to such
a town the provisions of section 13, which under certain circumstances
permit towns to adopt by-laws regulating plumbing, fixtures and equip-
ment.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Ballot Law Commission — Expenditures — Appropriation.
March 3, 1941.
Hon. Patrick J. Moynihan, Chairman, Commission on Administration
and Finance.
Dear Sir: — You ask my opinion as to whether the State Ballot Law
Commission is prohibited by the terms of G. L. (Ter. Ed.) c. 29, § 10, as
P.D. 12. 25
amended by St. 1939, c. 502, § 8, from spending moneys based upon nk
1940 appropriation for the expenses of a hearing which it is about to hoix-
in connection with signatures upon a referendum petition for the repeal
of a law with relation to racing.
In my opinion the Commission is not so prohibited but may spend money
for such expenses at the rate at which it was authorized to expend for
1940 by the general appropriation act of 1939.
The Legislature gave such authorization by appropriation in said act
(St. 1939, c. 309, Items 166, 167) in the following phraseology: —
Appropriation Appropriation
Fiscal Year F'iscal Year
*Item. 1939. 1940.
Service of the Ballot Law Commission.
166 For compensation of the commissioners, including
not more than three permanent positions . . — $1,500 00
167 For expenses, including travel, supplies and equip-
ment - 500 00
Total - $2,000 00"
G. L. (Ter. Ed.) c. 29, § 10, was amended by St. 1939, c. 502, § 8, by
striking out said section 10 and inserting a new section 10, which reads:
"Officers or departments having charge or supervision of expenditures
in behalf of the commonwealth may continue expenditiwes in the first fiscal
year of each hiennium at the rate authorized by appropriations for the pre-
ceding fiscal year, until the general court makes an appropriation therefor
or provides otherwise; provided, that biennially recurring expenditures
required by law to be made in the first fiscal year of any biennium shall
be at the rate authorized by appropriations for the second preceding fiscal
year."
An appropriation was made for the State Ballot Law Commission for
the preceding fiscal year (1940) by said Items 166 and 167, and expendi-
tures may be continued for 1941, which is the first year of a biennium, at
the rate authorized by said appropriation for 1940.
Such contemplated expenditures by the Commission for 1941, for the
purpose of holding hearings on the matter referred to in the first para-
graph of this opinion, are not "biennially recurring expenditures required
by law to be made in the first fiscal year of any biennium" and so are not
within the proviso of said section 10, which limits expenditures of the
latter type to such as are based on the rate authorized by appropriations
for the second preceding fiscal year. In the present instance such "second
preceding fiscal year" would be 1939, for which no appropriation to the
said Commission was made. Such proviso, as I have indicated, has no
application to the contemplated expenditures of this Commission which are
not "required by law to be made in the first fiscal year of any biennium."
It is plain from an examination of G. L. (Ter. Ed.) c. 53, § 22A, con-
cerning the duty of the State Ballot Law Commission to consider objec-
tions to signatures upon a referendum petition, that expenditures in
connection therewith are not, as I have stated, "required by law to be
made in the first fiscal year of any biennium" for said section 22A provides
that objections to such signatures "may be filed with the state secretary
not later than the sixtieth day prior to the election" at which the refer-
endum is to be submitted to the voters, but no limitation is placed upon
22 P.D. 12.
we^ earliest date at which they may be filed and referred by the Secretary
h" the State Ballot Law Commission. It follows that such objections
may be filed and such reference made with consequent hearings and the
incurring of necessary expenses in connection therewith by the Commis-
sion, either in the first or second fiscal year of a biennium, as the case
may be. The applicable part of said section 22 A reads: —
"Objections that signatures appearing on an initiative or referendum
petition have been forged or placed thereon by fraud and that in con-
sequence thereof the petition has not been signed by a sufficient number
of quahfied voters actually supporting such petition, as required by the
constitution, may be filed with the state secretary not later than the
sixtieth day prior to the election at which the measure therein proposed
or the law which is the subject of the petition is to be submitted to the
voters, except that, if a referendum petition is lawfully filed after the
sixty-third day prior to said election, such objections may be filed not
later than seventy-two week day hours succeeding five o'clock of the day
on which such petition is so filed. If upon hearing or otherwise it appears
to the state secretary that there is substantial evidence supporting such
objections, he shall refer the same to the state ballot law commission,
which shall investigate the same, and for such purpose may exercise all
the powers conferred upon it relative to objections to nominations for
state offices, and if it shall appear to said commission that the objections
have been sustained it shall forthwith reject the petition as not in con-
formity with the constitution and shall notify the state secretary of its
action."
Very truly yours,
Robert T. Bushnell, Attorney General.
State Infirmary — Inmates' Deposit Accounts in National Bank — Direct
Payments.
March 3, 1941.
Mr. Thomas F. McKay, Institution Treasurer, Tewkshury State Hospital
and Infirmary.
Dear Sir : — In a recent letter you have asked my opinion as to whether
G. L. (Ter. Ed.) c. 122, § 2E, relative to the collection of money due the
State Infirmary by direct payment from "a deposit account in a savings
bank or trust company ' ' is applicable to an account in the savings depart-
ment of a national bank.
Said section 2E reads : —
"Any bank book representing a deposit account in a savings bank or
trust company within the commonwealth, which belongs to a former
patient of the state infirmary and shall have remained unclaimed for
more than two years in the custody of the superintendent of said state
infirmary, may be presented by the trustees of the state infirmary to such
bank or trust company accompanied by the written request of the trus-
tees for payment to them of such deposit account except so much as is in
excess of the amount due the commonwealth for the support of such
patient, and such bank or trust company shall thereupon pay to the trus-
tees the amount so requested."
Said section 2E by its specific terms applies only to deposit accounts
in a savings bank or in a trust company, as stated in its specific phrase-
P.D. 12. 25
ology. It does not purport to be applicable to accounts in a national bank
and no inference to that effect can properly be said to arise by implica-
tion from an}^ part of its context.
I am of the opinion that the national bank which you mention in your
letter is correct in its contention that it is not rc^quired by the provisions
of said section 2E to make payment from an account of a depositor who
was a former patient of the State Infirmary.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Department — Conveyance of Rights in Land — Governor and Council.
March 5, 1941.
Dr. Clifton T. Perkins, Commissioner of Mental Health.
Dear Sir: — You ask my opinion as to who is the proper authority to
sign any necessary release of the rights which the Commonwealth acquired
by deed in a certain way serving as an entrance to the Taunton State
Hospital, in order that such way may now be laid out as a public way or
street by the city of Taunton.
I assume from the facts stated in your letter that the way in question
is so situated that the control of the rights acquired therein was vested
in your department or its predecessor, the Department of Mental Dis-
eases. Such being the fact, you, as Commissioner of the Department of
Mental Health, are the proper authority to execute such a release, subject
to the approval of the Governor and Council, by virtue of the provisions
of G. L. (Ter. Ed.) c. 30, § 44A, which read: —
''A commissioner or head of a state department having control of any
land of the commonwealth may, in the name of the commonwealth and
subject to the approval of the governor and council, sell and convey to
any county, city or town, or transfer to the control of another state de-
partment, so much of such land as may be necessary for the laying out or
relocation of any highway."
Very truly yours,
Robert T. Bttshnell, Attorney General.
Department of Public Works — Limitations on Authority to install Lights
on Highway.
March 5, 1941.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir : — You have asked my opinion in effect as to whether
under the provisions of G. L. (Ter. Ed.) c. 85, § 2, your department has
authority to make contracts for the installation and maintenance of
lights at dangerous street intersections on state highways. It would
appear from what you have stated in your letter that the character of
the lights to which you refer is not such as is described in said section 2
by the phrase, "warning signs or Hghts, " but that they are lights intended
for the general illumination of the highway at such intersections.
I am of the opinion that your department has not been vested with
authority to contract for the installation and maintenance of lights for
illumination, of the character which you have indicated.
26 P.D. 12.
Said section 2 gives to your department authority to erect and main-
tain —
*'. . . on state highways and on ways leading thereto, and on all main
highways between cities and towns, such direction signs, warning signs
or lights, curb, street or other traffic markings, mechanical traffic signal
systems and similar devices as it may deem necessary for promoting the
pubUc safety and convenience."
This phraseology employed in said section 2, by familiar principles of
statutory construction, cannot properly be interpreted as indicating a
legislative intent to authorize the Department of Public Works to erect
and maintain any lights upon the designated ways except such as fall
within the somewhat limited class of lights which are employed to warn
or to aid in directing travelers in a more particular manner than by fur-
nishing illumination upon the way.
If your department is desirous of providing for the general illumination
of the state highways, either generally or at street intersections, specific
power to effectuate that end should be sought from the General Court.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Hospital — Trustee — Interest in Contract.
March 8, 1941.
Mr. George J. Cronin, Commissioner and Purchasing Agent.
Dear Sir: — In a recent communication you request my opinion "as
to whether a trustee of the Boston State Hospital may be awarded a
contract for furnishing to other institutions their requirements of butter
and eggs."
Stated in another way, your inquiry, as I interpret it, raises the question
as to whether there is any legal prohibition under existing laws against
the awarding of a contract to a trustee of the Boston State Hospital for
the sale of these supplies to institutions other than the one for which the
contractor is a trustee.
In answering your question, I am, of course, expressing no opinion upon
the business ethics or propriety of members of boards of trustees using
their positions, as such trustees, as a means, directly or indirectly, of
securing contracts to furnish supplies to other institutions. Your question
to me, as Attorney General, is, quite properly, a narrow question of law,
and I answer it on that basis.
In my opinion, your question must be answered in the affirmative as
matter of law. The mere fact, standing alone, that the contracting party
happens to be a trustee of the Boston State Hospital does not make it
illegal to award to him a contract for such supplies to institutions other
than the Boston State Hospital.
There is no blanket legal prohibition preventing the making of any and
all contracts between the Commonwealth and its officers. By the passage
of G. L. (Ter. Ed.), c. 30, § 44, the Legislature prohibited any officer or
employee of the Commonwealth from acting as agent or attorney of any
person in the sale or conveyance of land to the Commonwealth. This
prohibition was originally enacted in 1910, and amended in 1918, 1919 and
1920.
P.D. 12. 27
As far back as 1872, by the passage of the provision which is now G. L.
(Ter. Ed.), c. 268, § 12, the Legislature made it a criminal offense for an
officer connected with certain institutions, specifically including state
hospitals, to be personally interested, directly or indirectly, in a contract,
purchase or sale made on account of the institution with which he was
connected.
At the same time, by the provisions which are now G. L. (Ter. Ed.),
c. 268, § 10, it was made unlawful for the officers designated therein to
make contracts with the Commonwealth under certain circumstances
therein set forth. Said section 10, so far as is material here, reads: —
"A member of the general court, or of the executive council, or of a
state department or commission, who is personally interested, directly
or indirectly, in a contract made by the general court or by either branch
thereof or by such department or commission or by its authority, in which
the commonwealth is an interested party; or a person, so interested, who
alone or with others represents the commonwealth in making such con-
tract; or such member or person who receives a commission, discount,
bonus, present or reward from a person or persons making or performing
such contract . . . shall be punished by a fine of not less than fifty nor
more than one thousand dollars or by such fine and imprisonment for not
more than one year."
A trustee of the Boston State Hospital under the circumstances described
in your question does not fall within any of the classes of officers or persons
included in said section 10.
Very truly yours,
Robert T. Bushnell, Attorney General.
Milk Control Board — Compensation of Members.
March 8, 1941.
Mr. Ralph H. Gaskill, Chairman, Milk Control Board.
Dear Sir : — You have asked my opinion relative to the interpretation
of section 4 of the Milk Control Law (St. 1934, c. 376, as amended).
Your specific question is "whether or not legal payments can be made
to Board members for performance of duties other than attendance at
formal board meetings."
In my opinion Board members, other than a member who may also
be the administrator appointed pursuant to section 5, are entitled to
compensation only for attendance at formal board meetings. While the
Milk Control Law requires or authorizes the members of the Board to
perform functions other than attendance at board meetings, the only
provision for compensation to members appears in St. 1934, c. 376, § 4,
which provides in part: —
"There shall be in the department of agriculture a milk control board,
hereafter in this act called the board, consisting of three persons, citizens
of the commonwealth, to be appointed by the governor, with the advice
and consent of the council. . . . Each member of the board shall receive
from the commonwealth as compensation the sum of ten dollars for each
day's attendance at board meetings and his actual expenses for necessary
travel; provided, that any such member who is otherwise regularly em-
ployed by the commonwealth shall not receive compensation, but may be
allowed his actual expenses for necessary travel."
28 P.D. 12.
The foregoing language would not, in my opinion, warrant the payment
of compensation to members of the Board for representing the Board at
public hearings or coni^erences or other services referred to in your letter.
Section 5 of said chapter 376 contains the provision that —
"... The board, subject to appropriation, may also appoint and fix
the compensation of such other employees and make such expenditures
as may be necessary in order to execute effectively the functions vested
in it. . . ."
However, I am of the opinion that this language, appearing in a section
dealing with compensation payable to the administrator and to "other
employees, " was not intended to enlarge the authority of the members
of the Board with respect to their own compensation, which was fixed by
the Legislature in the preceding section of the statute.
Very truly yours,
Robert T. Bushnell, Attorney General.
Motor Vehicle — Compulsory Insurance Law — Property Damage — Em-
ployer and Employee — Judgment — Revocation of License.
March 12, 1941.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You have requested my opinion as to the applicability
of G. L. (Ter. Ed.) c. 90, § 22A, to a state of facts substantially as follows:
An employee, while operating a motor vehicle owned by his employer,
damaged said motor vehicle; the employer brought suit against the em-
ployee and recovered judgment against him on account of the damage.
The employer-owner of the motor vehicle at the time the damage was sus-
tained was insured against liability for*" property damage" resulting from
the operation of his motor vehicle, but this insurance did not cover damage
done to the motor vehicle in question owned by himself.
The employer's judgment against the employee has not been satisfied,
discharged or released, and, in consequence of the failure of the employee
to satisfy said judgment, the Registrar of Motor Vehicles, under authority
of G. L. (Ter. Ed.) c. 90, § 22A, suspended the said employee's license to
operate motor vehicles in Massachusetts, and declined to renew it be-
cause of his interpretation of section 22 A. The employee has appealed
to the Department of Public Works from the Registrar's decision, and in
consequence you request my opinion on two questions : —
"1. Did the Registrar have authority to suspend (the employee's)
license under the provisions of Section 22A if at the time the car was
registered the owners carried a 'property damage' insurance policy in the
sum of one thousand dollars?
2. Does this section apply to damage done to the insured's car, to damage
done to the property of another person, or to both?"
I answer the first question in the negative and the second question, in
so far as it deals with the concrete situation now before you, is covered in
this opinion.
The question raised herein is by no means free from doubt, and a literal
application of the language contained in the first sentence of section 22A
would justify the Registrar in holding that he must revoke the license of
P.D. 12. 29
the employee referred to herein. However, I consider it the duty of the
Attorney General, in rendering opinions required of him under the law,
to apply the same rules of statutory interpretation that are applied by the
courts of this Commonwealth in deciding similar questions.
One of these rules of statutory interpretation is that statutes are not to
be construed solely according to their literal or strict verbal meaning.
The courts attempt to construe statutes according to what they believe
to be the intent of the legislative body when passing such statutes. The
legislative intent is to be gathered from the language of the several parts
of th^ statute, considered in connection with the cause of its enactment,
the pre-existing law, the mischief to be remedied, and the object to be
accomplished, to the end that the statute will be held to achieve the ob-
jects within the vision of the Legislature. MacBey v. Hartford Accid. &
Indent. Co., 292 Mass. 105, 107; Commissioners of Public Works v. Cities
Service Oil Co., 308 Mass. 349, 359-360.
It is by applying what I believe to be a sound rule that I come to the
opinion that the case in hand is not within the mandatory requirement
that the Registrar revoke or suspend this employee's license to operate.
The statute now under consideration was designed to supplement the
Compulsory Motor Vehicle Insurance Law (G. L. [Ter. Ed,] c. 90,
§ 34A-J), which was originally enacted in 1925 and requires the procure-
ment of insurance policies or the posting of cash bonds covering liability for
personal injuries, death and certain consequential damages resulting from
the negligent operation of motor vehicles on the highways of the Common-
wealth. The compulsory insurance law does not deal with damages to
property resulting from such operation of motor vehicles. Section 22A of
chapter 90 was, in my opinion, designed to encourage and stimulate the pro-
curement of insurance against liability for such injuries to property without
making such property insurance compulsory.
G. L. (Ter. Ed.) c. 90, § 22A, reads as follows: —
"The registrar, if he is satisfied by such evidence as he may require that
the defendant in an action brought in the commonwealth to recover dam-
ages for injury to property arising out of the use, operation or maintenance
on the ways of the commonwealth of a motor vehicle or trailer has failed,
for sixty days after the rendition thereof, to satisfy in full a judgment
against him in such action, shall suspend any license to operate motor
vehicles issued to him under this chapter, or his right to operate such
vehicles; and the registrar shall not terminate any such suspension, or
renew or issue any such license to any such person, until he is satisfied as
aforesaid that said judgment has been fully satisfied or that the judgment
creditor has released or discharged the judgment debt. This section shall
not apply in any case if the registrar is satisfied as aforesaid that the de-
fendant was, at the time such injury occurred, insured against loss or dam-
age on account of his legal liability for such injury by or under a policy of
insurance issued by an insurance companj^ duly authorized to transact
business in the commonwealth under chapter one hundred and seventy-
five, to the amount or limit of at least one thousand dollars; nor shall this
section apply in the case of a judgment rendered in an action brought to
recover damages for death or bodily injuries as well as damages for such
injury to property, unless a separate finding or verdict for such property
damages has been entered or returned in such action, in which case the
amount of damages so awarded shall, for the purposes of this section, be
deemed the amount of the judgment."
30 P.D. 12.
By the provision that section 22A shall be inapplicable to a defendant
who "was, at the time such injury occurred, insured against loss or damage
on account of his legal liability for such injury by or under a policy of in-
surance . . . ," it seems clear to me that the purpose of the act was, as
stated above, to induce owners of cars to take out insurance against damage
to property resulting from the operation of such cars without making such
insurance compulsory. I do not believe that the Legislature had any in-
tent, or, indeed, any desire, to induce owners to take out insurance against
damage to their own cars or to induce or compel employees of owners to
take some form of special insurance which might indemnify employers
against damage to the employers' cars. Furthermore, in my opinion, by the
inclusion of the provision just referred to, it seems clear that the Legisla-
ture was concerned with, and intended the statute to apply only to, those
cases of injuries to property for which liability insurance was generally
available.
The only type of insurance "against loss or damage on account of his
legal liability" for injuries to property by the negligent operation of a
motor vehicle generally available to an operator in 1932 was the type com-
monly referred to as "property damage insurance." This type of insur-
ance protects the insured against liability for damage to property other
than the motor vehicle owned or being operated by him. It does not insure
the employee operator "against loss or damage on account of his legal
liability" to his employer for damage to the employer's motor vehicle
arising from its negligent operation by the employee.
In my opinion the Legislature never intended the discrimination against
employee drivers which the literal terms of the act would imply. In my
opinion, further, the Legislature never intended by the enactment of these
provisions to place a special weapon in the hands of employers to enable
them to collect judgments against employees for damages to their own cars
used in the regular course of their own businesses, nor did it intend to place
upon persons earning their livelihood by driving motor vehicles owned by
others the additional burden of taking out some special type of insurance to
protect employers against loss on account of damage to their own cars.
The employee here, in the scope of his employment, was driving a motor
vehicle covered by property damage insurance. If a person other than his
employer had secured a judgment against the employee the Registrar
could not have revoked his license on the ground that such judgment had
not been satisfied. To hold that the Registrar must revoke and refuse to
reinstate the license of an employee in the event that a judgment in favor
of his employer is not satisfied, when such action could not be taken if the
judgment in favor of a member of the general public, whom the whole
course of this legislation was designed to protect, was not satisfied, would,
in my opinion, be a distortion of the intent of the statute.
Very truly yours,
Robert T. Bushnell, Attorney General.
Metropolitan District Commission — Retirement of Employee Veteran —
Continuity of Service.
March 15, 1941.
Metropolitan District Commission.
Gentlemen : — You have asked my opinion as to whether a certain
employee of your Commission, who is a veteran and who has become in-
capacitated for active service, may presently be retired. The applicable
P.D. 12. 31
statute, under which I assume it is contemplated that the retirement should
be made, would appear to be G. L. (Ter. Ed.) c. 32, § 57, which reads: —
"A veteran who has been in the service of the commonwealth, or of any
county, city, town or district thereof, for a total period of ten years, may,
upon petition to the retiring authority, be retired, in the discretion of said
authority, from active service, at one half the regular rate of compensa-
tion paid to him at the time of retirement, and payable from the same
source, if he is found by said authority to have become incapacitated for
active service; provided, that he has a total income, from all sources, ex-
clusive of such retirement allowance and of any sum received from the
government of the United States as a pension for war service, not exceeding
five hundred dollars."
An employee of the Metropolitan District Commission is to be regarded
as "in the service of the commonwealth" as those words are used in the
various sections of said chapter 32 dealing with pensions for veterans.
Ill Op. Atty. Gen. 119.
You advise me that the employee entered the service of the Common-
wealth on December 27, 1929, and continued therein until September 15,
1936, when he resigned; that about eight months later he was reinstated
and has served until the present time.
I am of the opinion that the employee may now be retired under said
section 57 as he has had ten years in the service of the Commonwealth,
although such service has not been continuous.
It has been held in an opinion of one of my predecessors in office (At-
torney General's Report, 1930, pp., 92-93), with which I concur, that "the
use of the words ^for a total period of ten years' in the instant statute"
(G. L. [Ter. Ed.] c. 32, § 57) so differentiates its terms from those of G. L.
c. 32, § 52, as to indicate a legislative intent —
"that the period of service need not be a continuous period, as was held
by the Supreme Judicial Court to have been the intended meaning of said
section 52 with relation to the type of service described therein (see Gray
V. Salem, 258 Mass. 559)."
Omitting from the computation the period of about eight months when
the employee withdrew from the service, on December 27, 1940, he had
been in such service a total period of ten years and about four months, a
sufficient length of time to entitle him to retirement under said section 57.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Employee — Retirement — Veteran — Continuity of Service.
March 18, 1941.
Hon. Patrick J. Moynihan, Chairman, Commission on Administration
and Finance.
Dear Sir: — I have your request for an opinion as to whether a vet-
eran who entered the State service April 26, 1911, is entitled to retirement
in accordance with the provisions of G. L. (Ter. Ed.) c. 32, § 58, on the
basis of having been in the service of the Commonwealth for a total period
of thirty years. The veteran has been continuously in the employ of the
Commonwealth, except for a leave of absence of approximately two j'^ears
from 1917 to 1919 spent in the United States Army. In other words, a
32 P.D. 12.
period of thirty years will have elapsed since his entry into the service of
the Commonwealth and April 26, 1941. If the two years spent in the
United States Army are computed as part of the thirty-year period re-
quired by the statute, he will on April 26, 1941, be entitled to retirement
in accordance with G. L. (Ter. Ed.) c. 32, § 58. If, on the other hand,
the period of leave of absence spent in the United States Army is not
considered as part of the ''total period of thirty years" required by the
statute, the veteran will not be entitled to retirement in 1941, having
been in the service of the Commonwealth for a total period of twenty-
eight years.
G. L. (Ter. Ed.) c. 32, § 57, provides for the retirement of veterans
who have become incapacitated after having been in the service of the
Commonwealth for a total period of ten years. In an opinion rendered
by one of my predecessors in office, with which I concur (Attorney Gen-
eral's Report, 1930, p. 92), it was held that it was not the intent of the
Legislature, in the use of the words "in the service of the commonwealth
. . . for a total period of ten years," as employed in said section 57, to
include service in the United States Army as a part of "service of the
commonwealth," and that the provisions of G. L. (Ter. Ed.) c. 31, § 27,
do not have the effect of giving to the military service of an employee
in the United States Army "the additional character of service to the
commonwealth." The soundness of this interpretation of legislative in-
tent is emphasized by the fact that during the eleven years that have
elapsed since the date of that opinion no amendment to the contrary has
been enacted.
The statute herein considered (G. L. [Ter. Ed.] c. 32, § 58) provides: —
"A veteran who has been in the service of the commonwealth, or of any
county, city, town or district, for a total period of thirty years, shall, at
his own request, with the approval of the retiring authority, be retired
from active service at one half the regular rate of compensation paid to
him at the time of retirement, and payable from the same source."
The term "total period of thirty years," as used here, is used in the
same sense as "for a total period of ten years" in section 57, the only
difference being that the shorter period applies to veterans who have
become incapacitated.
Under the interpretation already referred to, the employee will have
been "in the service of the commonwealth" for a period of twenty-eight
years in April, 1941, and, therefore, will not come within the provision of
G. L. (Ter. Ed.) c. 32, § 58, until 1943.
In my opinion, when the Legislature set a total period of thirty years
"in the service of the commonwealth" as a condition precedent to retire-
ment under this section, it meant exactly what it said.
For reasons deemed just and wise the Legislature has enacted from
time to time provisions bestowing certain privileges upon veterans of the
armed forces of the United States, and these enactments should be liber-
ally construed in favor of the veteran. This type of legislation repre-
sents attempts by the people of the Commonwealth to express in a tan-
gible and practical way their gratitude to veterans of the army and navy
of the United States.
The use by the Legislature of the term "veteran" without further de-
scription in the statute herein considered shows clearly that the statute
was intended to apply equally to all persons who might come within the
classification of veteran. It was not intended to give preferential treat-
P.D. 12. 33
ment to veterans who happened to be in the service of the Common-
wealth at the time they entered the armed forces. A ''veteran" acquires
his status by a period of service in the army or navy. The Legislature
has made no distinction here relative to the length of service by which
the status of veteran is acquired. To come within the provisions of this
act an individual must not only have acquired the status of veteran by
some period of service in the armed forces, but he must also have been
''in the service of the commonwealth . . . for a total period of thirty
years." There is nothing whatever to indicate that the Legislature in-
tended that the period of service in the army or navy should be twice
considered (a) to confer the status of veteran and (6) as a part of the thirty
years in the service of the Commonwealth.
In the case here considered, the employee's connection with the service
of the Commonwealth was severed when he left its employ under a leave
of absence and entered service in the United States Army (see Rose v.
Boston Firemen's Relief Fund, 248 Mass. 539-541). He was reinstated in
the State service two years thereafter under the terms of a special pro-
vision for the benefit of state employees who were discharged, suspended
or granted leaves of absence to enter the military or naval service of the
United States provided by G. L. (Ter. Ed.) c. 31, § 27. Under this sec-
tion such employees are given the right to "reappointment" or "re-
employment" in former positions or to be employed in similar positions
if vacancies exist. In any event the employment begins anew.
These provisions for the reappointment or re-employment of a veteran
who happened to be in the service of the Commonwealth prior to the
beginning of his service with the armed forces seem to be the limit to
which the Legislature intended to go in the treatment of this class of
veteran as distinguished from any other. In the absence of specific pro-
visions it certainly cannot be presumed that in establishing the term of
thirty years, the Legislature intended to discriminate in favor of veterans
who were in the service of the Commonwealth at the time of enlistment
in the armed forces and against those who were not. If the Legislature
intended that the period spent in the service should be included in the
thirtj^-year requirement, the period spent in military service by veterans
who entered the service of the Commonwealth after their discharge from
the army or navy would also be included. Thus if a veteran had served
two years in the army, but entered the service of the Commonwealth
after his discharge from the army, his two years of military service would
have to be deducted also, making the period "in the service of the com-
monwealth" twenty-eight years instead of thirty. And so in each case,
it would follow that the Legislature in fixing the thirty-year period for
veterans did not mean thirty years at all, but, instead, thirty years minus
the period of service in the army or navy. The plain terms of the statute
that "a veteran who has been in the service of the commonwealth, or of
any county, city, town or district, for a total period of thirty years, shall,
..." are in my opinion conclusive against such interpretation of the
statute.
It appears, therefore, that the veteran in question, having been in the
service of the Commonwealth for approximately twenty-eight years, will
not until 1943 come within the provision of the statute herein considered.
Very truly yours,
Robert T. Bushnell, Attorney General.
34 P.D. 12.
Outdoor Advertising — Rules and Regulations concerning Setbacks of Bill-
hoards — Business District — Definition.
March 19, 1941.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir : — Some time ago an Associate Commissioner of your De-
partment conferred with me concerning certain proposed amendments of
the rules and regulations governing billboards. Subsequently you sub-
mitted a written request for a formal opinion dealing with one aspect of
the subject matter of that conference. In your letter containing this re-
quest you referred to the case of Milton v. Donnelly, 306 Mass. 45, from the
opinion of which you quoted the following language : —
''that in the absence of a rule or regulation of the State department estab-
lishing a setback in a business district the town was authorized to require
this billboard to be placed not less than three hundred feet from the public
way in such a district. Such a by-law is not inconsistent with any rule or
regulation but supplements, as it may properly do, the existing rules and
regulations of the department."
Your letter concluded with the following paragraphs setting forth the
specific questions upon which you desire my opinion : —
"Now the question has arisen in the promulgation by the Department
of new rules for the regulation of billboards that, if the regulations should
fail to stipulate what a business district consists of and what a residential
district consists of, can the various cities and towns by ordinance set up
their own definition of such districts? If this be true and however
difficult the description of a business or residential district may be,
would it not seem best for the Board to adopt such a description rather
than let it go by default if the cities and towns can come in with their own
interpretation of these two districts?
Therefore, will you kindly inform me whether, in your opinion, it is
necessary for the Department to set up in its rules and regulations what a
business district consists of and what a residential district consists of."
My opinion has been delayed in part because of efforts which have been
made to obtain further basic information from your Department as to the
broad questions involved in the promulgation of the new rules, it being my
feeling that the opinion which I should furnish to you should involve a
consideration of the entire problem.
In my opinion the Department of Public Works may promulgate rules
and regulations governing setback requirements of billboards in business
districts without specifically defining the term "business district" in said
rules and regulations. I am also of opinion that such rules and regulations
can be drafted in such a manner that city or town ordinances or by-laws
purporting to define business districts and to prescribe setback requirements
applicable to billboards would be ineffectual in so far as the city or town
restrictions would be inconsistent with the setback requirements pre-
scribed by your Department.
It is apparent from an examination of the statutes providing for the
regulation of billboards (G. L. [Ter. Ed.] c. 93, §§ 29-33, inc.) that the
Legislature did not intend to have the matter of billboard regulation gov-
erned by rigid and inflexible requirements or prohibitions. On the con-
trary, the statutes clearly disclose a legislative intent to insure adequate
P.D. 12. 35
flexibility in the matter of such regulations. Thus, G. L. (Ter Ed ) c 93
§ 29, provides: — '
''The department of public works, hereinafter called the department,
shall niake 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 reservation
feaid rules and regulations may require that said billboards, signs or other
devices be licensed in accordance therewith and with this section, may
prescribe license fees, to be fixed with regard to the cost of administering
this section and need not be uniform throughout the commonwealth
-Before establishing or amending rules or regulations under this section,
the Department shall hold duly advertised public hearings in Boston and
elsewhere within the commonwealth as it deems necessary or expedient
Cities and towns may further regulate and restrict said billboards or other
devices within their respective limits by ordinance or by-law not incon-
sistent with sections twenty-nine to thirty-three, inclusive, or with said
rules and regulations."
It is to be noted that the foregoing statute specifically states that ''said
rules and regulations . . . need not be uniform throughout the com-
monwealth." See also Milton v. Donnelly, 306 Mass. 45.
Acting under the authority conferred by section 29, the Division of
Highways of the Department of Public Works has promulgated such
rules and regulations from time to time. In several instances such rules
and regulations have referred specifically to "business districts" or "dis-
tricts of a business character" without defining those terms Thus sec-
tions 6B 6D, 6F and 8(i) of the Rules and Regulations promulgated on
January 24, 1924, contain clauses of this type: "Provided, however, that
this paragraph shall not apply to districts which the division may deter-
mine are of a business character." When certain of these regulations
were challenged on the ground that the term "districts of a business
character was not sufliciently definite and that in consequence the
issuance and renewal of licenses would depend upon the caprice of individ-
uals or boards, the Supreme Judicial Court said in the case of General
Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, at 193: —
"The words 'business character' in § 6B, D, and F of the rules and
regilations as descriptive of a district^fall within the same rule and are
sufficiently definite. The provision that the determination of that matter
shah be made by the department of public works does not repose power
to act arbitrarily or to refuse to recognize what is in truth a district of
business character. The decision of that matter must in the first instance
be made by the department in passing upon applications. The words in
their context mean districts which are in fact rightly described as having
a busme^ss character' and not alone such as the board may determine
to be such. The power of initial decision in this particular may be vested
m the department of public works, subject to review by the courts when
necessary to prevent injustice."
In my opinion there can be no reasonable doubt as to the power and
authority of your Department to issue rules and regulations concerning
setback requirements for billboards in business districts or in districts
ot a busines.s character without specifically defining the term "business
district or district of a business character." Whether you choose to
36 P.D. 12.
promulgate such a rule without a specific definition is purely a matter of
policy which has been entrusted to your department by the Legislature
and concerning which I can not properly advise you. Consequently I
wish to make it clear that this opinion is concerned merely with the legal
questions of your power and authority and does not in any manner indi-
cate my views as to the desirability of the promulgation of such regulations.
With respect to your question as to the power of cities or towns to pre-
scribe definitions of "business districts" if you refrain from including a
specific definition in your rules, I am of the opinion that such municipal
definitions would not be valid with respect to billboard regulation if they
were inconsistent with your regulations. In the event of inconsistency,
the statutes and the rules and regulation:* promulgated by your depart-
ment are paramount over the ordinances or by-laws of cities and towns.
Inspector of Buildings of Falmouth v. General Outdoor Adv. Co., Inc., 264
Mass. 85. In that case the town of Falmouth, acting under authority of
the zoning law, adopted a by-law which it sought to apply to billboards
in a manner that would be inconsistent with the rules theretofore pro-
mulgated by the Division of Highways of the Department of Public Works.
It was held that the by-law was invalid as applied to billboards.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Health — Authority to Co-operaie with Federal
Government.
March 24, 1941.
Dr. Paul J. Jakmauh, Commissioner of Puhlic Health.
Dear Sir : — You have requested my opinion as to whether the Depart-
ment of Public Health may legally co-operate in the preparation of 4,000
grams of human serum albumin. It is my understanding that this work
would be done by your Department at the request of the National Research
Council, and as part of a program of supplying the United States Army
and Navy with material for transfusions.
General Laws (Ter. Ed.) c. Ill, § 5, reads in part as follows: —
"Section 5. The department . . . may, for the use of the people
of the commonwealth, produce and distribute antitoxin and vaccine
lymph and such specific material for protective inoculation, diagnosis or
treatment against typhoid fever and other diseases as said department
may from time to time deem it advisable to produce and distribute; ..."
In normal times some doubt would exist in my mind as to the right of
your Department to employ its laboratory facilities for the production of
antitoxins to be used for the protection or benefit of persons residing out-
side the Commonwealth, but, having in mind the national emergency, the
fact that thousands of Massachusetts men are being inducted into the
national army, and the suggestion that the National Research Council
proposes to finance this work, it is my opinion that your Department
will be warranted in undertaking it.
It is my understanding that if the cost of preparing 4,000 grams of
human serum albumin eventually falls upon your Department it will
represent a very small percentage of your laboratory budget. I think I
should say to you that if the project is successful and the Federal Govern-
P.D. 12. 37
ment later needs to have the serum manufactured in large quantities at
a substantial additional cost to your Department then it would be better
to obtain an enabling act by the Legislature. '
Very trul}^ yours,
Robert T. Bushnell, Attorney General.
Metropolitan District Commission — Services — Rules and Regulations —
Penalties — Limitation of Authority.
M f T, T^- . ■ .ry ■ . March 25, 1941.
Metropolitan District Commission.
Gentlemen:— In a recent communication you enclosed a copy of cer-
tain suggested regulations which you propose to promulgate with respect
to the use of the new North Metropolitan Relief Sewer, soon to be opened,
lour letter stated that the enclosed rules were "promulgated" by the
Commissioner of Public Health of the Commonwealth, and you asked for
my opmion on the question "whether or not, under the act creating this
Commission, we have a right to include in these rules a penalty clause and.
It so, have we the right to enforce such penalty clause "
Before adverting to your specific questions I wish to call your attention
to the fact that the regulations governing the use of sewers under control
ot the Metropolitan District Commission should be promulgated by it
rather than by the Commissioner of Public Health. It is proper, of course,
lor the Commissioner of Public Health to make recommendations with
respect to such rules and regulations (see G. L. [Ter. Ed.] c. Ill, § 17) but
he has no duty or authority to promulgate rules and regulations governing
sewers controlled by your Commission. Cf. G. L (Ter Ed ) c 92 S 17
re protection of water supply. '
In my opinion the Metropolitan District Commission does not have
authority to prescribe penalties for violations of rules and regulations pro-
mulgated by It with respect to the use of the new sewer
The authority of the Metropolitan District Commission to prescribe
rules and regulations for the use of sewers constructed and maintained by
It IS expressly conferred by statute. G. L. (Ter. Ed.) c. 92, § 2, deahng
with Metropolitan District Commission sewers generally, provides that
any town, withm the limits of which any main sewer under the control
oi the commission is situated, shall connect its local sewers with such main
sewer except as hereinafter provided, subject to the direction, control and
regulation of the commission." See V Op. Atty. Gen. 559
Subsequent legislative enactments dealing specifically with the con-
struction and maintenance of the new sewer referred to in your letter ex-
pressly provide that the Metropolitan District Commission may, with
respect to the new sewer, "exercise all the powers conferred upon it by
chapter ninety-two of the General Laws relative to the construction,
maintenance and operation of systems of sewage disposal." St. 1935,
c. 478, § 1; St. 1937, c. 433, § 1; St. 1938, c. 459, § 1; St. 1939, c. 512, § 3.
In one of these statutes the rule-making power of your Commission is even
more definitely expressed. St. 1937, c. 433, § 9.
However none of the statutes dealing with sewers constructed or main-
tained by the Metropolitan District Commission authorize it to prescribe
or impose penalties for violations of rules or regulations. This statutory
f' T^'^l^ respect to penalties is especially significant when considered
m the light ol statutory provisions applicable to other matters within the
38 P.D. 12.
jurisdiction of the Metropolitan District Commission. Thus, for example,
G. L. (Ter. Ed.) c. 92, § 17, provides for the promulgation of rules and regu-
lations for the sanitary protection of sources of water supply, and section
22 of the same chapter prescribes the penalties to be imposed for violation
of, or refusal to comply with, such rules and regulations. Similarly, G. L.
(Ter. Ed.) c. 92, § 37, authorizes the Metropolitan District Commission
to ''make rules and regulations for the government and use of the reserva-
tions or boulevards under its care ..." and the same section provides
that violations of rules or regulations made thereunder shall be punished
by fines not exceeding twenty dollars.
In addition to the fact that the statutes do not expressly confer authority
upon your Commission to prescribe penalties in this field, there is the fur-
ther consideration that it is at least doubtful whether such authority could
lawfully have been conferred by the Legislature. Such an attempted
grant of power would present a serious question of unconstitutional dele-
gation of legislative powers. See Brodbine v. Revere, 182 Mass. 598, 600-
602.
My opinion with respect to your lack of authority to include a penalty
clause in the rules to be promulgated concerning the use of the North
Metropolitan Relief Sewer carries with it the conclusion that you would
have no right to enforce any such penalty clause.
Very truly yours,
Robert T. Bushnell, Attorney General.
Parole Board — Permits to he at Liherty — Conditions — Revocation.
March 28, 1941.
Hon. Arthur T. Lyman, Commissioner of Correction.
Dear Sir: — In a recent letter you informed me that "uncertainty has
arisen" as to whether or not the Parole Board has power to revoke a per-
mit to be at liberty granted to a prisoner for "good conduct" under G. L.
(Ter. Ed.) c. 127, § 130, as amended, by reason of a violation of the terms
upon which the Board granted the permit. In my opinion, the Parole
Board has such power.
With relation to permits to be at liberty by reason of good conduct,
the Legislature in specific language has given power to the officials author-
ized to grant such permits by G. L. (Ter. Ed.) c. 127, § 128, as amended,
to issue them upon such terms as they may prescribe, and has, in section
147 of said chapter 127, provided that a violation of the terms of a permit
to be at liberty shall render it void; and in section 148 has provided that
the Board granting such a perpiit may revoke it; and in section 149 has
made provision for the arrest and return to his place of confinement of a
released prisoner whose permit has become void or been revoked.
While various kinds of permits to be at liberty are established by said
chapter 127, the provisions of said sections 147, 148 and 149 by their
terms apply to all permits, including those earned by good conduct.
Since the passage of St. 1880, c. 218, boards granting permits to be at
liberty for good conduct have been specifically empowered to issue them
upon terms fixed by them and to revoke such permits at any time. Pro-
vision was made for arrest after revocation on a warrant issued by a court
at the request of the officials making such a revocation and the return to
the former place of confinement and detention of the prisoner under his
P.D. 12. 3,
?ri^ii\^^ sentence. Those provisions were embodied in the Public Statutes
(1882), c. 222, §§ 20, 21.
St. 1884, c. 152, provided that violation of any of the terms of a permit
to be at hberty for good conduct should itself render the permit void
Authority was given therein to the board which granted such a permit to
issue a warrant for the arrest, return and detention under the original
sentence of the former prisoner whenever his permit to be at Hberty had
been revoked or had become void.
_ These terms of said chapter 152, together with the provision authoriz- ■
ingthe officials granting ''good conduct" hberty permits to issue them
subject to terms fi.xed by them, were embodied in the Revised Laws (1902),
c. 225, §§ 113, 127, 128, 129, and now appear in substantially the same
form in G. L. (Ter. Ed.), c. 127, as amended, §§ 130, 147, 148, 149. The
pertinent parts of said sections read: —
"Section 130. . . A prisoner who is entitled to such deduction" (for
good conduct) shall receive a written permit to be at liberty during the
time so deducted, upon such terms as the board which grants the permit
shall prescribe, which, in the case of a prisoner sentenced or transferred
to a state institution, shall include a minimum requirement that he shall
reside in a home approved by said board. ..."
"Section 147. The violation by the holder of a permit to be at liberty
of any of the terms or conditions of his permit or the violation of any law
ot the commonwealth shall render his permit void."
"Section 148. The board or officer granting to a prisoner a permit
to^be at liberty may revoke it at any time previous to its expiration "
bECTioN 149 The parole board, the county commissioners or, in
fcuttolk county, the penal institutions commissioner of Boston, if a permit
to be at liberty granted or issued by them, respectively, has become void
or has been revoked, or if a prisoner on parole under section one hundred
and torty-one has been ordered to return to the prison from which he was
released, may order the arrest of the holder of such permit or of such
prisoner on parole by any officer qualified to serve civil or criminal proc-
ess in any county, and the return of such holder or of such prisoner on
parole to the prison from which he was released."
In your letter you have asked my opinion upon certain questions con-
cerning your powers with regard to the granting of permits to be at liberty
tor good conduct. .
1. Your first question is —
"Would it be lawful for the Parole Board to prescribe as one of th°
terms an agreement of the prisoner that if his conduct prove in violation
of the terms of his release he shall, in the sole discretion of the Parole
iJoard, be returned to the institution from which he was released?"
In my opinion, the Parole Board can reasonably conclude that the sign-
mg ol such an agreement by a prisoner would tend to promote the pur-
poses of the pertinent statutes. If the Board so decides, it may lawfully
require the signing of such an agreement as one of the terms upon which a
liberty permit is to be issued. Whether the requirement of such an agree-
F^'l ^.'^o?'s''^i'k^'? "^^T ^^^^^ ^^^^^'« statutory power (G. L. fTer.
S^iii i\t ' : ^ il'"''^?'' ^^"^ ^^^^^^ ^"^^ return of a prisoner who has
h f hll i''™^ ?^^^'' ^'^""'^y P^™^^' ^^ ^ ^^^"er of policy to be decided
by the Board, and I do not purport to advise the Board with respect to it
z. \ our second question is — i- •
40 P.D. 12.
"Would it be lawful for the Parole Board to refuse to issue a 'good con-
duct' release until the prisoner signs such an agreement?"
If the Parole Board prescribes that one of the terms of the permit shall
be that the prisoner shall sign an agreement to do or not to do certain
things or to abide by certain consequences following upon designated and
forbidden conduct by him, it would be lawful for the Board to refuse to issue
an effectual permit to a prisoner who did not so sign.
3. Your third question is —
"Would it be lawful for the board to cause a person's return to the
institution if he resides after his release in a home not approved by the
board?"
Since G. L. (Ter. Ed.) c. 127, § 130, specifies "a minimum requirement
that he (the prisoner) shall reside in a home approved by said board," he
would be guilty of violating that term of his liberty permit if he should
reside in a home not approved by the Board. This violation or breach
would warrant the Board's causing his return to the institution from which
he had been released. G. L. (Ter. Ed.) c. 127, §§ 147, 148, 149. See
KozlowsU, Petr., 238 Mass. 532.
4. Your fourth question is —
"Would it be lawful for the Parole Board to revoke the 'good conduct'
release for violation of the terms and then order the prisoner's return to
the institution for the entire period which he earned for good conduct?
For example: A is released for 'good conduct' upon terms; the 'good
time' is one year; six months after release A violates release terms. Has
the board the power to return him for the entire year?"
It is provided in a portion of said chapter 127, section 149 : —
"A prisoner who has been so returned to his place of confinement" (i.e.,
by arrest under an order of the Parole Board because a permit to be at lib-
ertj^ has become void or been revoked) "shall be detained therein accord-
ing to the terms of his original sentence. In computing the period of his
confinement, the time between his release upon a permit or on parole and his
return to prison shall not be considered as any part of the term of his
original sentence."
These provisions of section 149 apply to permits to be at liberty by
reason of "good conduct" as much as to other similar permits. Such pro-
visions were made specifically applicable to prisoners returned for viola-
tions of the terms of permits to be at liberty by reason of "good conduct"
by St. 1884, c. 152, from which both said sections 149 and 130 derive. I
therefore answer your fourth question in the affirmative.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12.
41
Constitutional Law ~ Legislation authorizing Court Procedure for Extin-
gmshment of Restrictions on a Certain Piece of Land- Violation of
Art. 10 of Bill of Rights. ^
March 28, 1941.
H. Edward Snow, Esq, Chairman, House Committee on Bills in the Third
Reading.
of Wp®R'^n7j''''i!'Y' ^^T/'Hl"^^ ""P^^^^ ^^ ^« ^^^ constitutionality
ot beiiate Bill 263 which would authorize the Probate Court of Hampshire
County, upon petition of any person having an estate or interest in certain
improved land owned and occupied by the Young Men's Christian Assoc^S
tion of Northampton, subject to a right of entry for condition broken to
appomt a trustee under the provisions of G. L., 1 183, §§ 49-53 to sellind
convey such land in fee sinple, and would authorize said court subsequent^v
tlt^ZZ nt present value of the interest of each person interested S
accoSmgly ' '' ^""^ ^"^ '''^'' j^'* ^^^^ ^^^^^^ble distribution
In m/opinion, this bill if enacted, would be unconstitutional.
The title of the Young Men's Christian Association of Northampton to
whiroitmf th^^ iolS = : -" ' ''-' '' ''' ^^ ''' ^'^^^
out the objects for which the grantee was organized and Lcorporated^ a^^^^
upon the condition that if said land should at any time not be used for the
period of one year, for the dominant purposes for which said grantee was
orgamzed and mcorporated, then and in that case grantor or hfsW may
make a re-entry upon said land and re-possess themselves thereof ,incluSn^
orlSsThr^^^^ ^^' '''''' ^^^ ''''^ ^^ ^--^- - ^t« — o?
It is my opinion that the unambiguous language used in the deed of
^1 r^hfoV/nTr "^f "' *he phraseology of Senate Bill 263 itself assumes
YounI mI'.X^ / condition broken " in the donor- and passed to the
Young Men s Christian Association only a fee defeasible upon condition
subsequent. Dyer v. Siano, 298 Mass? 537. The right of entry for coX
^on broken hus created in the original donor was a%ested prosper ynght
which would pass to his heirs or his residuary devisees. By virtue of
AssoJi?tYon"?h? ^'"'^ '' '^f ''"?*^^" ^^ ^^^ Y^^^g Men'I Christian
Association, the heirs or residuary devisees of the donor may enter upon
the land and thereby forfeit the title of the Association and repossess
themselves of the land as of the donor's original estate repossess
Inin "" characteristics of such a conveyance were clearly set forth by Chief
Juste Shaw in the case of Brattle Square Church v. Gra7it, 3 Gray, 142,
"Where an estate in fee is created on condition, the entire estate does
f.lrS'^t' "^ '?•' ^'""'°'u- • • ^^^ '^^' ^^™^i^« ^f^er the gift o grant
nVht of Pnt'r ^«^*^^"^\^V^" ^'^\^°^' ^^^^ S«^^ *« hi« heirs. This il the
rignt ot entry . . which gives them the right to enter as of their old
o rick. 5^8 (1827); Fay v. Locke, 201 Mass. 287 (1909).) .
42 P.D. 12.
The proposed act contemplates the authorization of a court procedure
whereby the present owners of the right of entry may be forced to sur-
render that property interest against their will. The question of the
constitutionality of the proposed act must be viewed with reference to
the facts upon which it is designed to operate.
The case of Riverhank Improvement Co. v. Chadwick, 228 Mass. 242,
decided in 1917, is directly in point. That case concerned the constitu-
tionality of chapter 112 of the Acts of 1915, which purported to confer
on the Land Court jurisdiction to determine whether equitable restric-
tions limiting or restricting the use of land belonging to a petitioner for
registration are enforceable, and undertaking to authorize that court,
if it should find that the restrictions were valid, to refet the case to the
Superior Court for ascertainment of damages, giving the petitioner for
registration the right to pay the damages to the owner of the restrictions,
and then providing that thereupon the Land Court might register the
title free from those restrictions. It was held that the act was uncon-
stitutional and void as a violation of Article 10 of the Declaration of Rights
of the Constitution of Massachusetts. In other words, that statute pur-
ported to authorize a court procedure for the extinguishment of restrictions
owned by A upon the land of B on compensation therefor by B. The
Supreme Judicial Court held that the owner of the restrictions was, under
the statute, "to be forced against his will to surrender his right in the
nature of an easement in the land of another . . , and . . . obliged to
make surrender of this real estate right and accept money damages in
place of it, not because demanded by the public interests, but because a
neighbor desires it for his private aims." It was held that it is beyond the
legislative power to take, against his will, the property of one and give
it to another for what the court deems private uses, even though full
compensation for the taking be required. The court also said: —
"It may be that it would be wiser for the respondents to receive money
damages and submit to the extinguishment of their other property right.
But that fact, if it be a fact, is wholly irrelevant. By art. 10 of the Declara-
tion of Rights, the right is guaranteed to 'Each individual of the society
... to be protected by it in the enjoyment of his life, liberty and prop-
erty, according to standing laws.' In the continued enjoyment of these
three rights when defined and established by law the individual is not
obUged to submit to the judgment of court or Legislature that he ought
to hand them over for compensation to some one or more of his fellows
in their private interest. He is secure under the Constitution in his right
to keep what is his own, even though another wants it for private uses
and may be wilhng to pay more than its value." (228 Mass. 242, 248.)
In my opinion, the principles underlying the case of Riverhank Improve-
ment Co. V. Chadwick are applicable to Senate Bill 263, and the decision
in that case is decisive as to the unconstitutionality of the bill now under
.consideration.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 43
Metropolitan District Commission — Right of Access to Parkway.
March 28, 1941.
Hon. Eugene C. Hultman, Commissioner, Metropolitan District Com-
mission.
Dear Sir: — You have asked my opinion as to whether your Com-
mission may rightfully refuse the request of the trustees under the will
of CjTus C. Mayberry for a right of entrance from land owned by them
abutting upon the Old Colony Parkway.
You have laid before me a copy of an instrument conveying the land
under consideration, made by a former owner thereof to the Common-
wealth, in which the following phraseology occurs : —
"Said commonwealth agrees as part of the consideration of the within
deed that said Charles R. Batt, trustee as aforesaid, and his heirs, suc-
cessors and assigns (owners or occupants of adjoining land now owned
by said grantor as trustee as aforesaid) shall have, as appurtenant to said
remaining land, free access to whatever walk and roadwaj^ may hereafter
be constructed by said commonwealth along or in front of said adjoining
land and over the premises hereby conveyed, with the right to use the
same for the purposes of a way, subject to such reasonable rules and reg-
ulations as may from time to time be made by the Metropolitan Park
Commission of said Commonwealth, or by any other board or department
having for the time being the control and management of said parkway."
It appears that after the making of the said instrument your Commis-
sion constructed the Old Colony Parkway along or in front of a portion
of the land remaining in the former owner after the making of the above
conveyance and over the premises which were conveyed by him in said
instrument.
This being so, his successor in title, the present owner, is entitled by
virtue of the terms of said instrument to have free access to said parkway
by a right of way over the land bet.ween his present lot and the parkway,
subject to reasonable rules and regulations.
The owner's right to have access to the parkway is unquestionable
but it is not required that in affording him such access he must be given
two ways of entrance from his land to the parkway. As was said by the
Supreme Judicial Court in Burke v." Metropolitan District Commission,
262 Mass. 71, 80: —
"They" (the Commissioners) "are bound to recognize the petitioner's
right of access but, when that is done, they are under no obligation to
enlarge that right for his benefit when, in their opinion, such enlargement
would endanger the public safety and convenience."
Very truly yours,
Robert T. Bushnell, Attorney General.
Planning Boards — Amendment of Zoning Ordinances — Hearings.
March 31, 1941.
Miss Elisabeth M. Herlihy, Chairman, State Planning Board.
Dear Madam: — You request my opinion as to the proper interpreta-
tion of G. L. (Ter. Ed.) c. 40, § 27, enacted by St. 1933, c. 269, § 1. Your
specific question is whether, where it is proposed to amend the zoning or-
dinances of a city, section 27 of chapter 40 requires the holding of separate
44 P.D. 12.
and distinct hearings by the city plannmg board and by the city council,
or a committee thereof, before such proposed amendments may be adopted.
You inform me that some commimities have adopted the practice of having
both bodies hold a single joint hearing in lieu of separate hearings.
In my opinion, G. L. (Ter. Ed.) c. 40, § 27, requires the holding of sepa-
rate hearings. The pertinent provisions of this section read as follows: —
"Such ordinances or by-laws may be adopted and from time to time be
changed by amendment, addition or repeal, but only in the manner here-
inafter provided. No ordinance or by-law originally establishing the
boundaries of the districts or the regulations and restrictions to be enforced
therein, and no ordinance or by-law changing the same as aforesaid, shall
be adopted until after the planning board, if any, or, in a town having no
such board, the board of selectmen, has held a public hearing thereon after
due notice given and has submitted a final report with recommendations
to the city council or town meeting; provided that, in case of a proposed
ordinance or by-law originally establishing the boundaries of the districts
or the regulations and restrictions to be enforced therein, it shall be suffi-
cient if a public hearing is held and a final report with recommendations
submitted by a zoning board appointed for the purpose by the city council
or selectmen. No such ordinance as proposed to be originally established
or changed as aforesaid shall be adopted until after the city council or a
committee designated or appointed for the purpose by it has held a public
hearing thereon, at which all interested persons shall be given an oppor-
tunity to be heard. At least twenty days' notice of the time and place of
such hearing before the city council or committee thereof shall be published
in an official publication, or a newspaper of general circulation, in the munic-
ipality. After such notice, hearings and report a city coimcil or town meet-
ing may adopt, reject, or amend and adopt any such proposed ordinance
or by-law."
An examination of this section discloses a legislative purpose to require
the holding of two hearings, one by each of two separate bodies. Each
type of hearing is dealt with specifically in the statute. Thus, with respect
to the hearing to be held by the city planning board, the Legislature re-
quired merely that it hold "a public hearing . . . after due notice given/'
with no further specification as to the nature or extent of the notice.
On the other hand, the statute specifically requires that the city council
or a committee thereof shall hold "a public hearing . . . , at which all
interested persons shall be given an opportunity to be heard. At least
twenty days' notice of the time and place of such hearing before the city
council or committee thereof shall be published in an official publication,
or a newspaper of general circulation, in the municipality."
These differences in specific requirements themselves demonstrate the
fact that the Legislature intended to differentiate between hearings before
planning boards and hearings before city councils or committees thereof
in connection with proposed zoning ordinances, and that separate hearings
were contemplated. This interpretation is confirmed by the use of the
word "hearings" in the last sentence of that portion of section 27 which is
quoted above.
My opinion as to the requirement of separate hearings is also supported
by a' comparison of section 27 with thf^ prior statutory provision. Before
the enactment of section 27 by St. 1933, c. 269, only one hearing was re-
quired, and that hearing was to be held by the city council or by a com-
mittee designated or appointed by it. G. L. (Ter. Ed.) c. 40, §§ 26, 30.
P.D. 12. , 45
The new statute inserted the requirement of a hearing before the city plan-
ning board, whose principal functions are to make studies of the resources,
possibilities and needs of its city and to report to the city council on con-
ditions of the city, and to make recommendations for the development and
improvtnnent of the city. G. L. (Ter. Ed.) c. 41, §§ 70, 81A, as inserted by
St. 1936, c. 211, §4.
The filing of a report by the planning board containing its recommenda-
tions with respect to the proposed zoning ordinances must precede legis-
lative action on the proposals. G. L. (Ter. Ed.) c. 40, § 27. Whittemore v.
Town Clerk of Falmouth, 299 Mass. 64.
In my opinion the procedure outlined in section 27 contemplates and
rcxjuires separate hearings as stated above.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Permanent Position — Provisional Appointment.
April 2, 1941.
Hon. Ulysses J. Lupien, Director, Division of Civil Service.
Dear Sir: — You have informed me that by the death of the incum-
bent a vacancy was occasioned in the position of a field worker in the
Division of Savings Bank Life Insurance. You have advised me that this
position was a ^^ permanent position.^' You have further informed me that
you received a requisition from said Division ''for a field worker, service
to end six months from the date of appointment," and that "a provisional
temporary appointment" of one Stewart "was authorized by this De-
partment for a period of ninety days and extended at the end of said
period for a further ninety days." You have also told me that at the end
of the second period of ninety days said Division filed another requisition
with you for a person to fill provisionally what I assume from the tenor of
your letter to be the same position of field worker, describing the position
on this second requisition correctly as a "permanent position," and has
now asked you to authorize the further employment of the said Stewart
in such permanent position by a "provisional permanent appointment."
As relating to the action which you may take under the foregoing state
of facts you ask the following question: —
"Under the provisions of G. L. c. 31, § 15, have I the right to allow a
provisional temporary appointment for a period of 180 days in a twelve-
month period, and a provisional permanent appointment for 180 days in
a twelve-month period?"
The applicable portions of G. L. (Ter. Ed.) c. 31, § 15, read: —
"No person shall be appointed or promoted to any position in the classi-
fied civil service except upon requisition by the appointing officer and
upon certification by the director from an eligible list prepared in accord-
ance wuth this chapter and the rules and regulations made thereunder.
If there is no such list, or if the director is unable to comply with a requi-
sition, he may, subject to section twenty-five, authorize a provisional
appointment. Such a provisional appointment may he authorized to fill a
permanent position for a period of not more than ninety days, and may he
renewed for an additional ninety days, and no person shall be certified for
more than one such provisional appointment and renewal in any twelve-
month period. Authorization to make a provisional appointment shall be
46 P.D. 12.
void if not exercised within two weeks from the date thereof. The direc-
tor shall forthwith conduct an examination and establish an eligible Hst
for such a position within six months after such authorization. A pro-
visional appointment to fill a permanent position shall be terminated by
the director upon the establishment of an eligible list for such a position,
and it may be terminated by the director at any time."
". . .A provisional appointment to fill a temporary position shall con-
tinue for the period for which it was authorized; provided, that no such
appointment shall he made for more than ninety days, and the director may
authorize not more than one further provisional appointment to the same
temporary position in any twelve-month period. Any alteration in the na-
ture of the employment of a person holding a provisional appointment or
any increase in salary thereof shall immediately terminate such an ap-
pointment ..."
From the foregoing provisions of said section 15 it is plain that it was
the intent of the Legislature that no one person should be certified for or
hold a permanent position under a provisional appointment for a longer
period than 180 days in any twelve-month period. The instant position
was, as you have advised me, a "permanent position." A provisional
appointment to such position was authorized for and made to said Stewart
for a total period of 180 days. Under the terms of the statute the said
Stewart is not entitled to another "provisional appointment" to the same
permanent position.
It is immaterial that Stewart's provisional appointment was authorized
"to fill a temporary position." The position to which it related, and which
he occupied by virtue thereof, was in fact a "permanent" position, and
the character of the position was not changed by its being misdescribed
in the authorization, a provisional appointment was actually authorized
for this permanent position of field worker, and Stewart was certified for
such provisional appointment and held the position for two periods of 90
days each. He may not now be certified for another provisional appoint-
ment to the same position.
I answer your specific question as follows: You have not the right to
allow a "provisional temporary appointment" of a person for a period of
180 days in a twelve-month period to a position which, is actually a per-
manent one, and after that to permit a provisional permanent appoint-
ment of the same person to the same position.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Welfare — Reimhursement of Town for Old Age
Assistance — Lease of Municipal Poor Farm.
April 2, 1941.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — In a recent letter you enclosed a form of lease which a cer-
tain town proposes to execute, leasing to an individual "those parcels of
land, together with the buildings thereon, formerly known as the Poor
Farm or Town Infirmary." You asked my opinion whether, if that lease
were executed, your Department would "have authority to approve re-
imbursement for Old Age Assistance cases to be domiciled on the prop-
erty" which would be leased.
P.D. 12. 47
Your question involves a consideration of the old age assistance law
(G. L. [Ter. Ed.] c. USA, as amended), and especially section 1 of that
chapter. The pertinent provisions of section 1 read as follows : —
"Adequate assistance to deserving citizens in need of relief and support
sixty-five years of age or over . . . shall be granted under the supervi-
sion of the department of pubhc welfare, in this chapter called the de-
partment. . . . Such assistance shall, wherever practicable, be given to
the aged person in his own home or in lodgings or in a boarding home,
which for the purposes hereof shall include any institution providing
shelter, care and treatment for aged persons which is not supported in
whole or in part by pubhc funds; . . ."
These provisions disclose a specific legislative purpose to differentiate
between assistance given to poor and indigent persons generally under
G. L. (Ter. Ed.) c. 117, as amended, and assistance given to aged persons
under G. L. (Ter. Ed.) c. 118A, as amended. See Worcester v. Quinn,
304 iVIass. 276. They disclose a further specific intent on the part of the
Legislature to provide that assistance granted to aged persons under
chapter 118 A should be granted in such a manner that the recipients
should be spared the embarrassment, humihation and discomfort of being
required to live in poor farms, almshouses or other institutions of the
type maintained by cities and towns for the relief of poor and indigent
persons generally.
In furtherance of this purpose the Legislature has provided for reim-
bursement to cities and towns for aid given by them under the old age
assistance law (G. L. [Ter. Ed.] c. USA, § 8), whereas no such reimburse-
ment is to be made for aid given by cities or towns under G. L. (Ter. Ed )
c. 117.
The old age assistance law must be interpreted and administered so
that the legislative purposes will be promoted and effectuated. In con-
sidering any specific situation, such as the one presented by your letter,
the actual facts involved rather than the forms employed must control.
Thus, if a town in fact leases its poor farm at a fair rental to a private
individual, and if the lessee is at liberty to operate and does operate a
boarding house thereon as a wholly private enterprise, free from control
or management by the town, the premises may be found to be "a board-
ing home" within the meaning of chapter 118A, section 1, as amended.
On the other hand, if a town purporting to lease its poor farm or infirmary
should in fact maintain and operate the premises through the alleged
lessee as its agent, the premises could not be regarded as a "boarding
home," payments to the inmates of which may properly be made under
chapter 118A, section 1. The fact that in such an instance the premises
were being operated nominally by the lessee would not be decisive. See
Commonwealth v. Weinfield's Inc., 305 Mass. 108.
The determination of the question in any given case would require
careful examination and consideration of the pertinent facts, including,
among others, the following: The circumstances surrounding the making
of the lease; the adequacy of the rent reserved in the lease; the extent
to which the lessee's use of the premises is restricted or controlled by the
town; the existence of collateral agreements, whether written or oral,
between the town and the lessee with reference to the use of the prem-
ises; and the extent to which the town actually participates in the man-
agement and operation of the premises, irrespective of specific agreements
48 P.D. 12.
with respect thereto. The foregoing hst of factors to be considered is
illustrative rather than exclusive.
Since I have no detailed information concerning the pertinent factors
involved in the specific case which you have referred to me, I cannot
give a categorical answer to your question. I believe, however, that the
foregoing comments as to the applicable principles of law and as to the
pertinent considerations of fact will enable you to arrive at a proper
decision when you have all the relevant facts before you.
Very truly yours,
Ror.ERT T. BusHNELL, Attorney General.
Alcoholic Beverages Control Commission — Authority to make and amend
Regulations — Restrictions on Contents of Liquor Advertisements.
April 4, 1941.
Alcoholic Beverages Control Commission.
Gentlemen : — In a recent letter you requested my opinion as to
whether the Commission has statutory authority to make, with the ap-
proval of the Governor and Council, a certain new regulation, to be num-
bered 14A, and certain amendments to its present regulations numbered
13, 18 and 19A. The contemplated new regulation reads as follows: —
" 14 A. No advertisement pertaining to alcoholic beverages which con-
tains any direct or indirect reference to the price thereof shall be published
or distributed in any manner unless it shall state, and be limited to, the
full and proper name and address of the advertiser, a true factual descrip-
tion of the advertised product, including its trade or brand name, and the
price at which a specified quantitj^ is offered for sale. No licensee shall
directly, or through any agent, employee or other person, distribute any
advertisement of alcoholic beverages on any public highway or from house
to house or door to door in any city or town unless it shall be contained in
a publication of general circulation in common use as an advertising
medium."
As a result of the proposed amendments, the said three regulations would
read : —
" 13. No licensee shall print, post, publish or use any false or fictitious
price list; nor shall any invoice given or accepted by any licensee contain
any statement which falsely indicates prices, discounts, or terms of sale;
nor shall there be inserted in any invoice given or accepted by any licensee
any statement which makes the invoice a false record, wholly or in part,
of the transaction represented therein; nor shall there be withheld from
any invoice given or accepted by any licensee any statements which prop-
erly should be included therein, so that in the absence of such statements
the invoice does not truly reflect the transaction involved."
" 18. No licensee shall offer, give, agree to accept, or receive, any prize,
premium, gift or other similar inducement, in any agreement or effort to
aid, promote or induce the sale or purchase of alcoholic beverages. The
use of any device or game of chance to aid, promote or induce such sales or
purchases is also prohibited."
" 19A. No licensee shall buy or sell, or offer or contract to buy or sell,
any alcoholic beverages on consignment or under conditional sale or with
the privilege of return or on any basis otherwise than a sale or purchase in
P.D. 12. 49
good faith. This regulation shall not prohibit the return, or acceptance of
the return, of alcoholic beverages for ordinary and usual commercial rea-
sons arising after the merchandise has been sold."
I understand from your letter that, in making the above regulations,
the Commission intends to exercise its authority under G. L. c. 138, § 24,
as amended by St. 1934, c. 232. It provides in part: —
"The commission shall, with the approval of the governor and council,
make regulations not inconsistent with the provisions of this chapter for
clarifying, carrying out, enforcing and preventing violation of, all and any
of its provisions, for inspection of the premises and method of carrying on
the business of any licensee, for insuring the purity, and penalizing the
adulteration, or in any way changing the quality or content, of any alco-
holic beverage, for the proper and orderly conduct of the licensed business,
for establishing maximum prices chargeable by licensees under this chapter,
and regulating all advertising of alcoholic beverages, and shall, with like
approval, make regulations, not inconsistent with federal laws and regula-
tions, governing the labelling of packages of alcoholic beverages as to their
ingredients and the respective quantities thereof."
The Legislature has also conferred more general powers and duties upon
the Commission under G. L. c. 6, § 44, which provides: —
"The commission shall have general supervision of the conduct of the
business of manufacturing, importing, exporting, storing, transporting and
selling alcoholic beverages as defined in section one of chapter one hundred
and thirty-eight and also of the quality, purity and alcoholic contents
thereof. ..."
In my opinion the proposed regulations do not exceed the scope of the
authority granted to the Commission under the above statutes.
In enacting chapter 138 of the General Laws, the Legislature has mani-
fested an intention to subject the sale and manufacture of alcoholic bever-
ages to extensive and thorough regulation. For that purpose, it has en-
trusted broad powers to the Commission. Deciding that the Commission's
powers are sufficiently broad to sustain a regulation as to the method of
sterilization of dishes, silverware and glasses used in licensed places for
service of food or alcoholic beverages, the Supreme Judicial Court has
said : —
"An examination of the various provisions of c. 138, as amended, com-
pels the conclusion that the statute was intended to give to the commis-
sion comprehensive and exclusive jurisdiction over the conduct of such
business." (Universal Machine Co. v. Alcoholic Beverages Control Com-
mission, 301 Mass. 40, 44.)
The Legislature having entrusted broad discretionary powers to the
Commission with respect to making regulations, it is not within my prov-
ince to pass on the wisdom of such regulations but only to determine their
validity. It is sufficient that they have some reasonable basis and be de-
signed to accomplish a permissible end. General Outdoor Adv. Co. v. Dept.
of Public Works, 289 Mass. 149, 180, 192. From an examination of the
proposed regulations, together with information furnished by the secretary
of your Commission as to the practices and evils sought to be remedied,
there appears to be a rational basis on which they could be justified.
The proposed regulations appear sufficiently definite for the liquor
licensees to understand what is thereby required of them.
50 P.D. 12.
That the Commonwealth may in the exercise of its poHce power pro-
hibit or regulate the manufacture and sale of intoxicating liquors has long
been well established. Boston Beer Co. v. Massachusetts, 97 U. S. 25;
Mulger v. Kansas, 123 U. S. 623; Kidd v. Pearson, 128 U. S. 1; Common-
wealth V. Nicker son, 236 Mass. 281.
" There is no inherent right in a citizen to thus sell intoxicating liquors -
by retail ; it is not a privilege of a citizen of the State or of a citizen of the
United States. As it is a business attended with danger to the community
it may ... be entirely prohibited, or be permitted under such conditions
as will limit to the utmost its evils. The manner and extent of regulation
rest in the discretion of the governing authority. That authority may
vest in such officers as it may deem proper the power of passing upon
applications for permission to carry it on, and to issue licenses for that
purpose. It is a matter of legislative will only." (Crowley v. Christensen,
137 U. S. 86, 91.)
Section 2 of the Twenty-first Amendment to the Constitution of the
United States provides that "the transportation or importation into any
State, Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is hereby
prohibited." It has been held that a State is thereby empowered to
prohibit altogether the importation of intoxicating liquors or to permit
such importation on any conditions, regardless of whether such condi-
tions "relate to the protection of health, safety and morality, or the
promotion of their social welfare. . . . ' The words used are apt to confer
upon the State the power to forbid all importations which do not comply
with the conditions which it prescribes.' To limit the power of the states
as urged 'would involve not a construction of the Amendment but a re-
writing of it.'" Finch & Co. v. McKittrick, Attorney General, et al., 305
U. S. 395, 397, 398; State Board of Equalization v. Young's Market Co.,
299 U. S. 59, 63; Ziffin, Inc. v. Reeves, 308 U. S. 132.
By virtue of the Twenty-first Amendment to the Constitution of the
United States, the State's power to prohibit or regulate the sale, manu-
facture or transportation of intoxicating liquor is unfettered by the Com-
merce Clause. State Board of Equalization v. Young's Market Co., 299
U. S. 59; Indianapolis Brewing Co. v. Liquor Control Commission, 305
U. S. 391; Finch & Co. v. McKittrick, Attorney General, 305 U. S. 395.
Consequently, the effect of the Commission's proposed regulations on
interstate commerce would not present an additional constitutional
problem.
It may be argued that the proposed new regulation 14A, restricting the
content of liquor advertisements containing a reference to price and limit-
ing the distribution of liquor advertisements, would constitute an illegal
restraint on advertising. However, "the legislature doubtless may regu-
late advertising in commercial business when the public interest requires."
Commonwealth v. Brown, 302 Mass. 523, 527, and cases cited. Slome v.
Chief of Police of Fitchburg, 304 Mass. 187 (gasoline filling station price
signs).
"A familiar ground of the regulation or restriction of contracts or of
advertising in a commercial business is the preventing of fraud and mis-
take. Where the public are not cautious or watchful in their buying habits
and are likely to be misled, the Legislature may require not only the
absence of active deception (Commonwealth v. Reilly, 248 Mass. 1), but
P.D. 12. 51
also affirmative measures to prevent misunderstanding." {Common-
wealth V. Ferris, 305 Mass. 233, and cases cited.)
Such considerations seem peculiarly applicable to the purchase and sale
of into.xicating liquors. Although the restrictions contained in the pro-
posed regulation 14A may go to the verge of the Commission's power to
regulate advertising, I am not able to say that there can be no rational
connection between the proposed regulation and the evils sought to be
avoided thereby. If such a connection does or may exist, the power of
the Commission clearly encompasses the promulgation of such a regulation.
The proposed limitation on the distribution of liquor advertisements
does not violate constitutional guaranties of freedom of speech and of the
press. Schneider v. State of New Jersey, 308 U. S. 147, 165; 60 S. Ct.
Rep. 146, 152.
The proposed regulations are not objectionable as an administrative
exercise of the police power or as an unconstitutional delegation of legisla-
tive power. Belcher v. Farrar, 8 Allen, 325; Commonwealth v. Hyde, 230
Mass. 6, 9; General Outdoor Adv. Co. v. Dept. of Public Works, 289 Mass.
149, 162, 163, and cases cited.
Accordingly, I conclude that the proposed new regulation and amend-
ments do not exceed the Commission's statutory powers and are con-
stitutional.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Maintenance of Hospital by City — Employees.
April 4, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You have asked my opinion as to whether persons em-
ployed in classified positions in the Josiah B. Thomas Hospital in Peabody
are subject to the Civil Service laws and rules. I am informed that in
1917 the city of Peabody adopted the Civil Service laws, applicable to
its employees generally.
St. 1931, c. 241, authorized the city of Peabody to maintain this hospital.
Its management is provided for in section 3 : —
"The . . . board of trustees of said hospital . . . shall have the
entire management and control of the said hospital and of the staff,
personnel and employees thereof. ..."
A question almost identical with that contained in your letter was pre-
sented and decided in the case of Walsh v. Commissioners of Civil Service,
300 Mass. 244. That case involved Sp. St. 1919, c. 134, which authorized
the city of Quincy to establish and maintain a hospital. The statute there
provided in section 2 that the general management, care and control of the
hospital and "the authority to employ and remove superintendents, nurses,
attendants and all other agents and employees" should be" vested in a
board of managers.
The Supreme Judicial Court held that the employees of the Quincy City
Hospital were subject to the Civil Service laws and rules. It said, at
page 246 : —
"The public policy estabhshed by the civil service laws, the promotion
of the general welfare arising from the enforcement of those laws, and the
advantage to individuals from securing protection in their tenure of em-
52 P.D. 12.
ployment, are so significant that it would be difficult to reach the conclu-
sion that employment and removal of employees of the Quincy City Hos-
pital by the board of managers were not subject to the civil service laws,
... If a result of that nature had been intended, explicit words would
naturally have been used to make clear the meaning that such power was
free from the operation of the civil service laws."
In my opinion the decision and reasoning in the Walsh case are decisive
here and require an affirmative answer to your question.
Very truly yours,
Robert T. Bushnell, Attorney General.
Commissioner of Public Welfare — Refugee Children — Bonds — Sureties.
April 7, 1941.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir : — You request my opinion as to certain of your powers with
respect to approval of bonds under G. L. (Ter. Ed.) c. 119, § 30A. You
state your problem substantially as follows : The United States Committee
for Care of European Children, Inc. has placed some 200 children in Mas-
sachusetts and desires to place more. The Committee has requested you
to approve bonds without surety or sureties similar to bonds approved by
the State of Maryland. You state that you believe such a bond would be
adequate and, if Massachusetts law permits, you wish to accept such bonds
here.
Your specific question is, "Does the clause 'such surety or sureties as
the department may approve' allow the department to approve a bond
without sureties, provided in the opinion of the department the principal
is financially sound?"
At the outset it is to be noted that the Massachusetts statute, G. L.
(Ter. Ed.), c. 119, § 30A, differs from the Maryland statute in that the
latter contains no reference to sureties and merely requires the posting of
indemnity bonds. It should also be noted that c. 119, § 30A, was enacted
in the year 1931 and none of the present problems resulting from inter-
national conditions were within the view of the Legislature of Massachu-
setts at that time. However, we are obliged to take the statutes as we find
them, realizing that they may be changed by the legislative body to meet
changing conditions. Under the terms of the law as it now stands, I am
obliged to inform you that you have no authority to accept a bond under
the provisions of G. L. (Ter. Ed.), c. 119, § 30A, without a surety or sure-
ties. The terms of this section are specific and clear, the pertinent part
reading : —
"... Such a permit shall not issue until a written application therefor
has been filed with the department on forms by it prepared, containing
such information relative to such child as the department may require,
accompanied by an individual or blanket bond running to the common-
wealth in such penal sum and with such surety or sureties as the depart-
ment may approve. ..."
The statute specifically requires a surety or sureties, and you are not
authorized to dispense with this requirement.
At the same time I call your attention to the fact that your depart-
ment is vested with broad discretion in the matter of the approval of a
surety or sureties. The law does not require corporate or professional
P.D. 12. 53
sureties. Thus you are not obliged to put the Committee, Inc. to expense
for premiums on surety bonds when such sums might more desirably be
spent directly for the benefit of these children. It would be entirely
proper for you to accept a bond or bonds with the Committee, Inc. as
principal and any interested individual with whose financial responsibility
you are satisfied as surety. Likewise you could accept a bond executed
by an interested individual as principal with the Committee, Inc. as
surety.
I point out these methods of compliance with the statute for the reason
that you indicate in your letter that you would consider a bond executed
by the United States Committee for Care of European Children, Inc.
alone, without any surety, adequate protection for the Commonwealth
if the statute permitted you to do so. The object of this section of the
statute is to protect the Commonwealth against persons or institutions
bringing children who may become public charges into the Common-
wealth from any other state or country. Upon your department is placed
the responsibility for accomplishing this purpose, and with that responsi-
bility you are given broad powers in the matter of the approval of a suretj
or sureties.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Welfare — Old Age Assistance — Bonds given by
Certain Recipients.
April 8, 1941.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir : — You have requested my opinion as to the effect to be
given to St. 1938, c. 467, in connection with bonds executed and deliv-
ered, prior to the enactment of that statute, by persons receiving old age
assistance pursuant to G. L. (Ter. Ed.) c. 118A, § 4. Said section 4 pro-
vides, in part, as follows : —
"The ownership of an equity in real estate upon which an applicant
actually resides shall not disqualify him from receiving assistance under
this chapter; provided, that if such equity . . . exceeds two thousand
dollars . . . the board of public welfare of the town rendering such
assistance . . . shall . . . require such applicant to execute a bond
in a penal sum at least equal to the amount of the equity in excess of
two thousand dollars, running to the treasurer of the town, conditioned
on repayment to such town of all amounts of such assistance, without
interest, such bond to be secured by mortgage of the applicant's real
estate, . . ."
The section further provides that bonds and mortgages executed in
pursuance of its requirements shall be entered for record in the appro-
priate registries of deeds or registry districts of the Land Court.
St. 1938, c. 467, amended said section 4 by substituting "three thou-
sand dollars" in place of "two thousand dollars" wherever the latter
phrase appeared.
.You have asked the following specific questions with respect to the
interpretation and application of the 1938 amendment: —
"1. Has a municipality the right to reimburse itself for relief given
under the Old Age Assistance Law to the extent of the equity in excess of
54 P.D. 12.
$2,000 if such bond was given to the city or town prior to the enactment
of Chapter 467 of the Acts of 1938?
2. Was it the intention of the legislature in enacting Chapter 467 of
the Acts of 1938 that in all cases where the town sought reimbursement
under Chapter 118A, Section 4, as amended, the town reimburse itself only
for the amount in excess of $3,000?
3. If it was the intention of the legislature in all cases subsequent
to the 1938 amendment that the amount in excess of $3,000 only may be
used for reimbursement, would it be proper for this department to advise
all municipalities that the registry records should be cleared by obtaining
new bonds from the old age recipients permitting a $3,000 exemption
instead of a $2,000 exemption as originally issued and further instruct
the municipahties that discharge of the original bonds should be issued
and recorded in the Registry of Deeds?
4. Is it your opinion that the change from $2,000 to $3,000 to be effec-
tive in all cases should be brought about only by an act of the legislature?"
In my opinion, the amendment of 1938 is to be construed as applicable
to persons whose bonds and mortgages, executed pursuant to the original
statute, were still in full force and effect at the time the amendment was
adopted, as well as to those persons first applying for old age assistance
after the effective date of the amendment.
The net effect of section 4, as enacted in 1936, was to create an exemp-
tion of two thousand dollars in favor of owners of real estate receiving old
age assistance under chapter 118A. This appears from an examination
of the language in the statute and also from the following language of the
Supreme Judicial Court in a case construing section 4 : —
"A person having an equity in real estate upon which he resides, of a
value in excess of $2,000, is not disqualified from receiving old age assist-
ance if he executes a bond in the penal sum of the value of the equity in
excess of $2,000 conditioned on the repayment of all amounts of such
assistance, such bond to be secured by a mortgage upon the real estate."
{Worceste?- v. Quimi, 304 Mass. 276, 279.)
The 1938 amendment did not change the structure or purpose of sec-
tion 4. Its only effect was to increase the exemption from two thousand
dollars to three thousand dollars. There is nothing in the amendment
itself or in section 4 as amended which specifically restricts the benefits
of the increased exemption to those persons who first apply for old age
assistance after the effective date of the amendment. In my opinion, the
amendment should not be interpreted or construed in such a manner that
two persons simultaneously receiving aid under the old age assistance law
should be under different obligations to repay such assistance merely be-
cause one began to receive assistance before 1938 and the other after
1938. The entire structure of chapter 118A and the history of old age
assistance are inconsistent with an interpretation which would sustain
such discrimination as between recipients of such aid. The legislative
purpose in increasing the exemption to three thousand dollars by St.
1938, c. 467, appears to have been to benefit all persons within the class
described, irrespective of whether they had previously filed a bond giving
them only a two thousand dollar exemption under the earlier law, or
whether they were to commence to receive aid after the new law went
into effect. The statutes must be construed in a manner which will carry
out this legislative purpose and intent.
P.D. 12. 55
To the extent that the foregoing construction of G. L. (Ter. Ed.) c. 118A,
§ 4, as amended by St. 1938, c. 467, involves a reduction of the potential
liability of persons who had executed bonds and mortgages prior to the
1938 enactment, such a reduction can lawfully be made by the Legisla-
ture in a situation of this character. The cities and towns receiving such
bonds and mortgages have no vested rights therein which are beyond the
power of the Legislature to reduce. Cf. Worcester v. Worcester Consoli-
dated St. Ry. Co., 196 U. S. 539, 552.
The Legislature has not provided for the discharge or substitution of
outstanding bonds and mortgages which had been executed prior to the
1938 amendment. However, no such provision was necessary. The terms
and conditions of the outstanding bonds and mortgages must be inter-
preted consistently with the effect of the amended statute as discussed
above.
In view of the foregoing discussion I answer your first question in the
negative, your second question in the affirmative, your third question in
the negative, and your fourth question in the negative.
Very truly yours,
Robert T. Bushnell, Attorney General.
Hairdressers — Cosmetologist — Massage — Body Reconditioning.
April 9, 1941.
Airs. Hazel G. Oliver, Director of Registration.
Dear Madam : — You have asked me the following question in behalf
of the Board of Registration of Hairdressers: —
"Can body massaging or body reconditioning be done in connection
with hairdressing as defined in the General Laws, Tercentenary Edition,
chapter 112, section 87T and section 87F as they appear in the General
Laws?"
Rule 39 of the Rules and Regulations established by the Board of Regis-
tration of Hairdressers, under authority of G. L. (Ter. Ed.) c. 112, § 87CC,
provides : —
"On and after December 1, 1937, no shop (defined in Section 87T as a
beauty shop or other place to which customers come for hairdressing)
shall be conducted in connection with. any barber shop or in connection
with any other establishment unless said shops are separated by a suit-
able partition and have separate entrances."
I find no definition of the terms used in your question — "body mas-
saging" or "body reconditioning" — either in the statutes or the data
submitted to me with the question.
G. L. (Ter. Ed.) c. 112, § 87T, as amended, defines "hairdressing" as
follows : —
"'Hairdressing,' arranging, dressing, curling, waving, cleansing, cutting,
singeing, bleaching, coloring, or similarly treating the hair of any female,
or performing work as a cosmetologist as defined in section eighty-seven F,
or any combination of any of the foregoing, but not including the removal
of superfluous hair or skin blemishes by direct application of an electric
current, or any treatment of the bust."
"Cosmetologist," in turn, is defined in section 87F of said chapter 112,
as follows : —
56 P.D. 12.
"'Cosmetologist/ any person, who, with hands or mechanical or elec-
trical apparatus or appliances, or by the use of cosmetic preparations,
antiseptics, tonics, lotions, or creams, engages for compensation in any
one or any combination of the following practices, to wit: — Massaging,
cleansing, stimulating, manipulating, exercising, beautifying the scalp,
face, neck, arms, bust or upper part of the body, or manicuring the nails,
or removing of superfluous hair, by the use of electricity or otherwise,
about the body of any female, but not about the body of any male."
Considering Rule 39 in connection with the statutes, I would say that
"body massaging" and "body reconditioning, " using the terms in accord-
ance with ordinary, laymen's understanding, can be done in connection
with hairdressing in so far as —
(a) The "body massaging" is limited to massage of the "scalp, face,
neck, arms, bust or upper part of the body ... of any female," but not
otherwise.
(h) "Body reconditioning" may be done in connection with hairdressing
if it consists of massage of "the scalp, face, neck, arms, bust or upper
part of the body ... of any female," but not otherwise.
In so far as "body massaging" and "body reconditioning" are limited
as above indicated, they may be performed in connection with hairdressing
and in the same shop.
The fact that hairdressers practicing any form of massage, except that
of the face and scalp, are required to be licensed and are subject to rules
of license and inspection by local officials under the terms of G. L. (Ter.
Ed.) c. 140, §§ 51 and 52, as amended, is immaterial in answering your
specific question.
Very truly yours,
Robert T. Bushnell, Attorney General.
Legislative Committees — Mayor — Vacancy in Office — Statutes relating
to Special Elections — Duties of Acting Mayor of Cambridge.
ArRiL 11, 1941.
Special Joint Committee of the General Court concerning Cambridge.
Gentlemen : — I acknowledge receipt of your request for my opinion on
certain questions set forth below.
My duty, under the statutes, to render opinions to legislative commit-
tees is limited to giving advice "upon the legal effect of proposed legisla-
tion pending before" such committees. G. L. (Ter. Ed.) c. 12, § 9. Ill
Op. Atty. Gen. Ill, 112. However, in view of the obvious urgency of the
matters being considered by you, I am pleased to co-operate with you by
complying with your request, even though the questions which j^ou put
do not refer to any bills now pending before you.
"1. What in general are the powers of this Special Committee under the
order passed by the House and Senate?" (House Journal, Mar. 26, 1941.)
Among the pertinent rules relating to the power of committees in respect
to the subject matter referred to them are the following: —
1. A committee is not at liberty to entertain any proposition, or go into
any inquiry, which does not come within the direct purpose for which the
committee is appointed, as expressly or clearly implied in the authority
conferred upon it, or which is not grounded upon some paper which is re-
ferred to the consideration of the committee.
P.D. 12. 57
2. When a subject is referred to a committee, to consider the matters
thereof, and to report its opinion thereupon to the House, the committee
is authorized to recommend any measure connected with and growing out
of the subject so referred.
These rules are founded on the clear and indisputable principle of parlia-
mentary law that a committee is bound by, and is not at liberty to depart
from, the order of reference. Cushing's Law and Practice of Legislative
AssembUes, 9th Ed., pars. 1905-1909.
"The ascertainment of pertinent facts as the basis for legislation is
within the power of the law making department of government. When a
legislative body has a right to do an act, it must be allowed to select the
means within reasonable bounds. It is not precluded from delegating
incidental powers which it may exercise itself in aid of its primary functions
but which do not partake of the nature of law making. . . . Where facts
are necessary as a basis for legislative action, the General Court may
ascertain them in any reasonable way. Familiar methods are by appro-
priating the results of studies already made by itself or by others, by con-
ducting an inquiry through a committee of its members, or by utilizing
an existing commission or board to make and report the results of a re-
search." {Attorney General v. Brissenden, 271 Mass. 172, at 181.)
The powers delegated to your committee must be determined from the
order establishing it. No general discussion of your powers would be help-
ful as it could neither limit nor extend the grant of powers set forth in some
detail in the legislative order establishing the committee and defining its
duties.
"2. Is the office of Mayor in the City of Cambridge vacated by reason
of any of the General Laws?"
While the matter is not free from doubt, the answer, in my opinion, is
"No."
This question, of course, refers to the fact that on March 21, 1941, John
W. Lyons, Mayor of the City of Cambridge, was found guilty by a jury
in the Middlesex County Superior Court on several indictments charging
the request and acceptance of bribes, and was sentenced thereon to im-
prisonment in the state prison.
I am informed that the defendant Lyons appealed to the Full Bench of
the Supreme Judicial Court, and a stay of execution was granted pending
the decision on his appeal. Consequently, there has been no final judg-
ment of his guilt. Cofnmonwealth v. Marsino, 252 Mass. 224, 228; Common-
wealth V. Lohel, 187 Mass. 288, 289.
The pertinent statutory provisions are as follows : —
G. L. (Ter. Ed.) c. 268, § 8, provides in effect that a public officer who
corruptly accepts or requests a gift or gratuity, etc., shall (1) forfeit his
office, (2) be forever disquafified to hold any public office, and (3) be pun-
ished by imprisonment in the state prison, or otherwise.
G. L. (Ter. Ed.) c. 279, § 30, provides as follows: —
"If a convict sentenced by a court of the commonwealth or of the United
States to imprisonment in the state prison holds an office under the con-
stitution or laws of the commonwealth at the time of sentence, it shall be
vacated from the time of sentence. If the judgment against him is reversed
upon writ of error, he shall be restored to his office with all its rights and
emoluments; but, if pardoned, he shall not by reason thereof be restored,
unless it is so expressly ordered by the terms of the pardon."
58 P.D. 12.
Whether or not the office of Mayor of Cambridge has been ''vacated"
or "forfeited" depends upon whether a final judgment of guilt is
a prerequisite to the imposition of the disqualifications set forth in the
above statutes.
There appears to be no Massachusetts decision which directly deter-
mines this question, and there is a conflict of authority in other States
respecting the construction of similar statutes. In the case of Common-
wealth V. Gorham, 99 Mass. 420, 422, the court said: —
"'Conviction' is used in at least two different senses in our statutes.
In its most common use it signifies the finding of the jury that the prisoner
is guilty; but it is very frequently used as implying a judgment and sen-
tence of the court upon a verdict or confession of guilt."
In Mariano v. Judge of District Court, 243 Mass. 90, 92, the court said: —
"Conviction ordinarily means a conclusive establishment of guilt. It
imports that the question of guilt has been adjudicated and is not open to
further inquiry as of right by the person convicted."
The case of Commonwealth v. Kiley, 150 Mass. 325, involved a situation
somewhat similar to that now under consideration. In that case the
statute provided that the conviction of a person licensed to sell intoxi-
cating liquor, for a violation of the liquor laws, should of itself make the
license of such person void. The court said, at page 326: —
"Under this provision, the effect of a conviction of the kind named is
to deprive the defendant of a valuable right, without an opportunity for
further trial or investigation. We are of the opinion that nothing less than
a final judgment, conclusively establishing guilt, will satisfy the meaning
of the word 'conviction' as here used."
The decision and reasoning in the Kiley case would suggest that the
word "convict," as used in G. L. (Ter. Ed.) c. 279, § 30, impHes a final
judgment of guilt. Moreover, the provisions of that section to the effect
that the officeholder shall be restored to his office if the judgment against
him is reversed upon writ of error tends to support the conclusion that the
office would not be vacated until there had been a final judgment of guilt,
since a writ of error is available only to one against whom a final judgment
has been rendered. Commonwealth v. Marsino, 252 Mass. 224, at 228.
Cherry v. Cherry, 253 Mass. 172, at 176.
It is my opinion, that the word "convict," as used in chapter 279,
section 30, refers to a person whose guilt has been finally adjudicated, and
that that statute is not now applicable to Mayor Lyons.
The pertinent provisions of G. L. (Ter. Ed.) c. 268, § 8, do not include
the words "convict" or "conviction," although the words "final convic-
tion" do appear in another portion of that section. However, I am of the
opinion that said section should also be held to impose a forfeiture of
office only upon a person whose guilt has been finally adjudicated.
Since there has not been a final judgment in the Lyons case within the
meaning of the pertinent statutes, I am of the opinion that the office of
Mayor has not been vacated by operation of the General Laws.
"3. Has the General Court the authority to revoke or hold in abeyance
any statutes relating to special elections?"
The answer, in my opinion, is "Yes." There is no doubt that the Gen-
eral Court has plenary power to amend or revoke at any time those dele-
P.D. 12. 59
gated powers which it has granted to a municipal corporation. Paquette
V. Fall River, 278 Mass. 172, at 175, 176; Goodale v. County Commissioners,
277 Mass. 144, at 149, 150; Agawam v. Hampden, 130 Mass. 528, at 530.
In Opinion of the Justices, 138 Mass. 601, at 603, the following language
was used : —
"The power of the Legislature to make or to authorize local laws for
the administration of local affairs is beyond question. It has the right to
make local laws to meet the peculiar exigencies of any part of the com-
munity."
"4. What is the legal effect of the stipulation entered into between
John W. Lyons, Mayor of Cambridge, and the court, and particularly,
what does the word 'Privilege' mean? Who is entitled to the salary of
Mayor?"
As a general proposition, a public officer whose salary is fixed by statute
or by a municipal ordinance enacted pursuant to a statutory mandate is
entitled to receive such salary while he holds the office. Such a right is
not impaired by his absence from his post or neglect of duties so long as he
continues to hold the office. Walker v. Cook, 129 Mass. 577, 578; Cook v.
Springfield, 184 Mass. 247, 249.
The salary of the Mayor of Cambridge was fixed by an ordinance of
the city adopted pursuant to G. L. (Ter. Ed.) c. 43, § 62, as amended by
St. 1928, c. 54, and St. 1930, c. 106. Consequently, if my opinion that
Lyons still holds the office of Mayor is correct, the question becomes one
as to the effect of the stipulation entered into by him upon any claim
which he may make for the salary.
I am informed that upon the granting of the Lyons motion for a stay
of sentence the following stipulation was signed by Lyons and filed with
the court : —
Commonwealth v. John W. Lyons, et al.
Stipulation.
It is hereby stipulated by John W. Lyons, named as defendant in the
above numbered indictments, as follows:
In consideration of the allowance by the Court of the motions filed by
said defendant to stay the execution of the sentences in the above-entitled
cases, the defendant John W. Lyons does hereby agree that during the
pendency of the appeals claimed by him in said cases, and until final dis-
position thereof, he will not perform any acts, render any opinions, make
any appointments, or in any manner exercise any other powers and priv-
ileges of his office, or pertaining to his office, as Mayor of the City of
Cambridge.
s/ John W. Lyons.
March 21, 1941.
This stipulation is not a contract with the City of Cambridge. The city
was not a party to the proceedings in which it was entered. L3^ons entered
into the stipulation for his own advantage, in order to obtain a stay of
execution of sentence. There is no occasion for me to predict whether or
not Lyons, who by his own act has debarred himself from functioning as
Mayor of Cambridge, would be in contempt of court if he should induce the
city authorities to pay his salary notwithstanding his agreement with
the court that he would not "in any manner exercise any . . . privileges
of his office, or pertaining to his office."
60 P.D. 12.
If the city should refuse to pay a salary to Lyons, and if he, despite his
stipulation, should bring suit against the city to enforce payment, the
stipulation might be pleaded by the city by way of defense. In that event,
the agreements set forth in the stipulation might be regarded as evidence
of an abandonment of Lyons' rights, privileges and powers as Mayor,
including the right or privilege of receiving a salary.
''5. In general what are the duties of the acting Mayor of the City of
Cambridge and is the President of the City Council the acting Mayor? '^
G. L. (Ter. Ed.) c. 43, § 26, supplies the answer to your question as to
the actmg Mayor. Its pertinent provisions are : —
" . . . If the mayor is absent or unable from any cause temporarily to
perform his duties they shall be performed by the ^president of the city
council. The person upon whom such duties shall devolve shall be called
'acting mayor', and he shall possess the powers of mayor only in matters
not admitting of delay, but shall have no power to make permanent ap-
pointments. ..."
The crux of the statute is the phrase "matters not admitting of delay."'
This phrase was examined and discussed by the Supreme Judicial Court in
Dimick v. Barry, 211 Mass. 165, where the court said: —
"The statute makes no provision for the ascertainment of 'matters not
admitting of delay.' Therefore, it must he determined according to the usual
course of judicial procedure as each case arises.^'
In further discussing the duties and powers of the acting mayor, the
court said : —
"The powers of the acting mayor are expressly limited to such matters
as do not admit of delay. While this language should not be given a nar-
row or refined interpretation and should be construed in view of the prac-
tical necessities of municipal administration, yet it should be given its
natural force and meaning in the connection in which it is found. The
words are both plain and emphatic. They express a definite conception of a
necessity so importunate that it cannot be resisted with reason. When a
public officer undertakes to perform by way of substitution duties so
definitely circumscribed, and their validity is questioned, it must appear
that they are warranted and no strong presumptions exist in their favor.
The irresistible public urgency which warrants the 'acting mayor' in
performing the functions of mayor chosen by popular election might be
manifested in various ways.
Cases might arise where it would be apparent as matter of law upon the
face of the papers that the approval of the order was a matter 'not admit-
ting of delay.' Such an inference might be drawn respecting a warrant
for an election or an appropriation of money to be used for a Fourth of
July celebration or a corporate anniversary, or like orders where time
appears to be of the essence of the subject. Appropriations necessary for
immediate payment of fixed charges of various municipal departments
would come within this rule. The nature of the order might stamp it as
an emergency measure requiring instant attention. Impending disaster,
threatened disorder, public pestilence, devastation by flood or fire illus-
trate the range of subjects of this character. The layout of a public way,
although based upon an adjudication that common necessity and con-
venience require it, usually docs not fall within any of these classes. While
it is conceivable that an exigency might demand it, there is nothing to
P.D. 12. 61
indicate that in the case at bar. The city council might vote that any-
particular order was of a nature not admittilig of delay in executive deter-
mination as to its wisdom. While this would not be conclusive, in most
instances it would be strongly persuasive of the existence of pressing need.
Universal acquiescence by public officers charged with the performance of
official duties coupled with the acquirement of rights in reliance upon the
validity of the act might create a presumption in favor of the existence of
the pressing necessity."
The situation created by G. L. (Ter. Ed.) c. 43, § 26, as construed in the
Dimick case, obviously constitutes a potential source of much confusion,
litigation and delay in connection with the administration of the city
government. Whether corrective legislation should be recommended is
a matter which is properly within your province.
Very truly yours,
Robert T. Bushnell, Attorney General.
Public Health — Licenses — Fees — Repayment.
April 17, 1941.
Dr. Paul J. Jakmauh, Commissioner of Public Health.
Dear Sir : — You have requested my opinion as to whether or not the
Department of Public Health should refund the fifty-dollar fees paid for
permits issued under G. L. (Ter. Ed.) c. 94, § 270D, inserted by St. 1939,
c. 351. This statute requires "any person residing without the common-
wealth and having no usual place of business within the commonwealth
who manufactures or sells at wholesale articles of bedding or upholstered
furniture . . . sold within the commonwealth .• . . (to) obtain ... a
permit to sell such articles within the commonwealth" at an annual fee
of fifty dollars. In the case of Mueller v. Commissioner of Public Health,
307 Mass. 270, the statute was held unconstitutional as a violation of the
Commerce Clause of the Federal Constitution. Some of the permit fees in
question were paid under protest and others were paid without protest.
The fees required by the above statute were essentially license fees paid
by manufacturers and wholesalers of bedding and upholstered furniture
"residing without the commonwealth and having no usual place of business
within the commonwealth" for a license to sell such articles within the
Commonwealth. Mueller v. Commissioner of Public Health, supra.
It is a general and well-established principle of law that, in the absence
of statutes, a person who has paid a license fee or a tax which is illegal or in
excess of the sum which might lawfully be exacted cannot recover back the
amount paid or the illegal excess if the payment was made voluntarily with
full knowledge of the facts. Cook v. Boston, 9 Allen 393; Emery v. Lowell,
127 Mass. 138; Brown v. Nahant, 213 Mass. 271; Marconi Wireless Tel
Co. V. Commonwealth, 218 Mass. 558, 562; Nichols on Taxation (3rd ed.),
p. 449; 37 C. J. 256, and cases cited. The payment is voluntarily made
within the above-stated principle unless made under duress or coercion,
such as, upon demand by a tax collector holding a warrant authorizing
him to seize the goods or arrest the body of the person on whom demand is
made. Preston v. Boston, 12 Pick. 7; Boston & Sandwich Glass Co. v.
City of Boston, 4 Met. 181; George v. School District, 6 Met. 497; Cunning-
ham v. Boston, 15 Gray, 468. The fact that payment is made under protest
does not render it involuntary. Preston v. Boston, supra; Cook v. Boston,
62 P.D. 12.
supra; Emery v. Lowell, supra; Boston & Sandwich Glass Co. v. City of
Boston, supra; Shoemaker & Co. v. Board of Health of Gloucester City, 83
N. J. L. 425. Likewise, payment of a license fee is not involuntary by
reason of the great importance or business necessity of obtaining the license
or privilege,
"We do not regard it as changing the character of a payment from vol-
untary to involuntary or compulsory, that it is important to the party
paying to get what he gets by the payment, in other words, that there
should be an urgent need on his part. It is ordinarily and almost neces-
sarily true that one pays what he regards as extravagant, only for what
seems to him an important result, and submits to the demand for what he
regards as an exorbitant or illegal fee, only because there is an urgent need
for what the pajTnent will produce. . . . The plaintiffs wished a license.
They were at liberty to take it or not, as they saw fit. They paid the fee
demanded, knowing all the facts in the case. A refusal to pay would have
resulted merely in their not being licensed. They must be held to have
paid voluntarily, and not under coercion." (Emery v. Lowell, 127 Mass.
138, 140, 141.)
The case of Shoemaker & Co. v. Board of Health of Gloucester City, supra,
involves a situation quite similar to the one at hand. In that case the
plaintiff paid under written protest a license fee required by a city ordinance
"to regulate the gathering of bones, fat, hides and other offal and refuse
from slaughterhouses and meat shops," which was subsequently held un-
constitutional. At page 427 the court said: — /
"A payment made under such circumstances is none the less a voluntary
payment . . . The plaintiff here . . . had the privilege and opportunity
before paying the fee to remove the ordinance upon the claim of illegality
to this court, by writ of certiorari, ... It chose the alternative of paying
the fee, and thus secure the privilege of operating under its license almost
during the entire license period."
G. L. (Ter. Ed.) c. 60, § 98, providing for an action to recover back a
tax, commenced within three months after the payment of the tax under
written protest, does not apply to the payment of a fee for a license. The
remedy afforded by that section relates only to the collection of local taxes
by a collector of taxes under a warrant from the assessors of a city or town.
Bogigian v. Commissioner of Corporations and Taxation, 256 Mass. 142, 146.
You understand, of course, that I am obliged to give you the law as we
find it and not as we think it ought to be. The Legislature has made no
provision, specifically or by implication, for repayment of such fees. Con-
sequently, the rights of the parties are to be determined by the rules of
the common law which I have stated above. It certainly appears to me,
as a matter of fairness and justice, that this would be a fit subject for legis-
lation by the Great and General Court of Massachusetts.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 63
Civil Service — Notice of Examinations — Required Contents.
April 18, 1941.
Commissioners of Civil Service.
Gentlemen : — You have asked my opinion as to whether it is obUgatory
upon the Director of Civil Service, in giving notices of examination to the
pubHc, to set forth in such notices "entrance requirements" and "qualifi-
cations" to be required of applicants.
I am of the opinion that, when actual "entrance requirements" have
been established and certain "qualifications" have been determined upon
as necessary to the attainment of any position, the Director must state
such "entrance requirements" and such "qualifications" in the notices of
the examination for such position. However, the Director is not required
by the applicable statutes to establish "entrance requirements" or to de-
termine and establish " qualifications " for the attainment of each and every
position for which an examination is held. It rests in his discretion to
determine when it is necessary to demand specific "entrance requirements"
or particular "qualifications" from those seeking positions in the civil
service, having regard to the character of the various positions and the
nature of the work which is to be performed by those who occupy them.
Such discretion in the performance of his duties is vested in the Director
by G. L. (Ter. Ed.) c. 31, § 2A, which in part provides: —
"In addition to other duties imposed by this chapter and chapter thir-
teen, the director shall ...
(c) Determine and pass upon the qualifications of applicants; and hold
examinations for the purpose of establishing eligible lists of persons for
appointment. ...
(d) Establish such standards of physical qualifications and requirements
for the several offices and positions in the classified civil service as he may
determine to be necessary. ..."
G. L. (Ter. Ed.) c. 31, § 8, as amended by St. 1939, c. 395, requires
that the Director shall prepare notices of all civil service examinations,
and makes provision for bringing them to the attention of the general
public b}^ posting in various designated places. It then provides: —
"Notices of examinations shall state the duties and pay of positions,
the class or title, qualifications required therefor, time, place and manner
of making application for admission to the examination, passing require-
ments, entrance requirements, if any, and any other information which
the director considers pertinent and useful."
It was not the intent of the Legislature, in enacting the foregoing para-
graph, to make it mandatory upon the Director to estabhsh "entrance
requirements" or "qualifications," if, in any instance, in the exercise of
the discretion vested in him by said section 2A, he did not consider such
requirements and qualifications advisable or necessary. The intent of the
Legislature in passing this enactment was to make sure, when "entrance
requirements" and "qualifications" were in fact established, that their
existence and terms should be made known to possible applicants through
the medium of the notices before the examinations were held, so that they
might not be misled as to what was expected of those taking the examina-
tions.
The words "if any," employed by the Legislature in the above quoted
paragraph, modifying, as they do, by reason of their position in the para-
64 p.D. 12
graph and the punctuation of the same, all the words before them de-
scriptive of matters required to be placed in the notice, show plainly that
the intent of the General Court was not to require the Director to estab-
Hsh "entrance requirements" or "qualifications" but merely to obHge
him to state "entrance requirements" or "qualifications" in the notices
of examination, if he had in fact determined to estabhsh them.
Very truly yours,
Robert T. Bushnell, Attorney General.
Boston Elevated Railway — Governor and Council — Request for Opinion
from Justices of the Supreme Judicial Court.
April 21, 1941.
His Excellency Leverett Saltonstall, Governor of the Commonwealth.
Sir : — In a recent communication referring to the Boston Elevated
Railway matter. Your Excellency has asked me the question : —
"Whether or not the Governor and Council may properly ask an opinion
of the Justices as to their certification of the deficit for the year ending
March 31, 1941."
My answer to your question is in the affirmative, provided it is apparent
that —
(1) There is a matter pending before the Governor and Council in which
that body is obliged to act, i.e., the Treasurer's warrant for the payment
of the deficit;
(2) Doubt exists as to the power and authority of the Governor and
Council under the law; and
(3) The settlement of such doubt is necessary to enable the Governor
and Council to act intelligently and legally.
Chapter III, Article II, of the Constitution of Massachusetts provides
that "each branch of the legislature, as well as the governor and council,
shall have authority to require the opinions of the justices of the supreme
judicial court upon important questions of law, and upon solemn
occasions."
The words "upon important questions of law" mean that opinions
can be required only when such questions of law are necessary to be de-
termined by the body making the inquiry in the exercise of the legislative
or executive power entrusted to it by the Constitution and laws of the
Commonwealth. By "a solemn occasion" the Constitution means some
serious and unusual exigency. Opinion of the Justices, 290 Mass. 601.
Spec. St. 1918, c. 159, § 11, as amended, contains the following
language : —
". . .it shall be the duty of the trustees to notify the treasurer and
receiver-general of the commonwealth of the amount of such deficiency,
. . . and the commonwealth shall thereupon pay over to the company the
amount so ascertained.^'
Nothing in this act refers directly to the Governor and Council, but
there is a further constitutional provision (Mass. Const., pt. 2d, c. II, § I,
art. II) as follows: —
"No moneys shall be issued out of the treasury of this commonwealth,
and disposed of (except such sums as may be appropriated for the redemp-
tion of bills of credit or treasurer's notes, or for the payment of interest
P.D. 12. 65
arising thereon) but by warrant under the hand of the governor for the
time being, with the advice and consent of the council, for the necessary-
defense and support of the commonwealth; and for the protection and
preservation of the inhabitants thereof, agreeably to the acts and resolves
of the general court."
Hence it would appear that the deficiency cannot be paid except "by
warrant under the hand of the governor . . . with the advice and consent
of the council."
In the present case, when the warrant for the payment of the deficit
is placed before the Governor for signature, with the advice and consent
of the Council, the Governor and Council has a definite duty to take action
upon such warrant.
If the Governor and Council is in doubt as to whether or not it is legal
for the Governor to withhold the warrant under his hand and for the
Council to withhold its advice and consent, a question of sufficient im-
portance may properly be raised upon which the Governor and Council
may have authority to require the opinion of the Justices of the Supreme
Judicial Court.
Respectfully yours,
Robert T. Bushnell, Attorney General.
State Racing Commission — Persons Employed hy Licensees — "Citizens
of the Commonwealth" — Definition.
April 26, 1941.
Mr. Charles F. Connors, Chairman, State Racing Commission.
Dear Sir: — You have asked my advice as to "what qualifications
are required for ' citizens of the commonwealth ' within the meaning of . . .
section 10 of chapter 128A" of the General Laws.
The pertinent portion of said section 10 reads: —
". . . At least eighty-five per cent of the persons employed by a licen-
see at a racing meeting held or conducted by him shall be citizens of the
commonwealth and shall have been such citizens for at least two years
immediately prior to such employment."
The words "citizens of the commonwealth" as employed by the Legis-
lature in said section 10, as above set forth, mean persons who are citizens
of the L^nited States having a domicile within the Commonwealth. Such
meaning is in accordance with the legislative declaration contained in
G. L. (Ter. Ed.) c.^1, § 1, which reads: —
"All persons who are citizens of the United States and who are domi-
ciled in this commonwealth are citizens thereof."
As to who are citizens of the United States, the Fourteenth Amend-
ment to the United States Constitution provides: —
"All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside."
No other qualifications are required of a person to be a citizen of the
Commonwealth.
You have also asked me to advise you as to "what means the Commis-
sion should use to verify the list of employees which is submitted by the
66 P.D. 12.
various racing associations to ascertain that the persons listed 'shall have
been citizens for at least two years immediately prior to such employ-
ment' " in accordance with the requirements of said section 10.
Any licensee employing persons in violation of the terms of said section
10 makes himself liable to the criminal penalties provided in section 12
of said chapter 128A, and affords a reasonable ground upon which your
Commission might revoke his license under section 11. Your Commission
is not specifically required by any provision of the racing law to ascertain,
by investigation or otherwise, whether or not a licensee has complied
with the provisions of section 10. Nevertheless, it is proper for you to
endeavor to inform yourself in this respect, and, by an addition, through
amendment, to your present Rule 302 of the Rules of Horse Racing and
Rule 152 of the Rules of Dog Racing, you might require a licensee to fur-
nish you with a detailed statement as to whether each of its employees
acquired United States citizenship by birth or by naturalization and on.
what date. As to an employee who has been naturalized, you might
require the filing of a copy of his Federal certificate of citizenship. As to
the time during which such a person had been domiciled within the Com-
monwealth, you might require proof by his written statement or the
written statement of the licensee or others having knowledge of the facts.
Other similar means of satisfying itself concerning the citizenship of em-
ployees may occur to the Commission, and, so long as they are reasonably
adapted to the purpose of giving it necessary information upon the point,
may be adopted through rules and regulations.
Very truly yours,
Robert T. Bushnell, Attorney General.
Employees of Federal Government — Minors — Females — Not governed
hy State Statute.
May 1, 1941.
Hon. James T. Moriarty, Commissioner of Labor and Industries.
Dear Sir: — You have asked me whether "female employees of the
Federal Government, under twenty-one years of age, whose duties are to
inspect munitions at munition factories in Massachusetts, are included in
the employees referred to in section 95 of chapter 149 of the General Laws."
I am of the opinion that such female employees of the Federal Govern-
ment are not included in the employees referred to in said section 95.
The prohibitions of said section 95 and its explicit requirements are
directed toward the employer rather than toward the employee, and a
violation of its provisions is enforced by a fine which may be imposed upon
the employer. The section forbids the employment of a minor between
sixteen and twenty-one years of age in a factory or certain other designated
establishments unless the employer procures and keeps on file an educa-
tional certificate showing that the minor has met requirements for the
completion of the sixth grade of the public schools. It is plain that such
provisions were not intended by the Legislature to be applicable to the
Federal Government as an employer, and the statute is not to be construed
with such an application nor as relating to a minor employee of the Federal
Government working in a field of endeavor within its jurisdiction, over
which Congress has taken control by executing its legislative power. To
hold otherwise would give an unconstitutional effect to the said section.
The power to raise and support an army and navy rests with Congress
(U. S. Const., Art. I, § 8), and such power includes the incidental power
P.D. 12. 67
to make and supervise the production of munitions of war. The states
are precluded from adopting laws which may obstruct or embarrass the
exercise of such power. It is obvious that an application of the terms of
said section 95 to the United States as an employer of inspectors of muni-
tions would conflict and be irreconcilable with the paramount authority
which the Federal Government exercises in the field of the production of
munitions of war. See Northern Pacific Railway Co. v. North Dakota, 250
U. S. 135, 150; Commonwealth v. Nickerson, 236 Mass. 281, 293, 294.
Very truly yours,
Robert T. Bitshnell, Attorney General.
Motor Vehicles — Excise, Tax — Registration — Federal Reservation.
May 2, 1941.
Lieut. George Mace Bowles, Office of the Commanding Officer, Fort
Devens, Mass.
Dear Sir : — In your recent communication you state that Fort
Devens headquarters desires a ruling as to the taxability, under the
existing laws of the Commonwealth, of automobiles owned by United
States Army personnel stationed at Fort Devens. This office cannot give
your department a legal opinion which has any binding effect. However,
I am pleased to let you have my observation on the question which you
point out in your letter. You refer to an opinion of a former Attorney
General (Attorney General's Report, 1933, p. 45) in which it was stated
that if " the automobiles to which you refer are 'customarily kept' on the
reservations, the statute makes no provision for a tax." G. L. (Ter. Ed.)
c. 60A, § 1, in force at the time of that opinion, provided: —
"Except as hereinafter provided, there shall be assessed and levied in
each calendar year on each motor vehicle registered under the provisions
of chapter ninety and customarily kept within the commonwealth, for the
privilege of operating such motor vehicle upon the highways during such
year, an excise tax upon the value thereof, as hereinafter defined and
determined . . ."
This statute, as most recently amended by St. 1938, c. 480, § 1, now
provides :
"Except as hereinafter provided, there shall be assessed and levied in
each calendar year on every motor vehicle and trailer registered under
chapter ninety, for the privilege of such registration, an excise measured
by the value thereof, as hereinafter defined and determined ..."
'The exceptions referred to in the statute are not material to the subject
matter of this ruling. It is apparent that the basis for the imposition of
an excise tax under the statute as it now reads is different from what it
was at the time of the opinion rendered in 1933.
The further provision of the statute that —
"Nothing in this section shall be construed to impose an excise tax
upon any motor vehicle or trailer registered and customarily kept in another
state if such other state does not impose an excise, privilege or property
tax or fee, in addition to a registration fee, upon motor vehicles or trailers,
as the case may be, registered and customarily kept in this common-
wealth,"
is not applicable to the facts in this case.
68 - P.D. 12.
It is, therefore, my opinion that the automobiles in question, if regis-
tered under chapter ninety, are taxable as provided in the statute.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Requisition — Certification according to Sex.
♦ May 12, 1941.
Hon. William H. Bixby, Chairman, Civil Service Commission.
Dear Sir : — You ask my opinion as to whether the Director of Civil
Service "had a right to ignore a requisition" from a school committee
"for Si female attendance officer only and to certify" for the position ap-
plicants from a list of eligibles, some of whom were males and some fe-
males and among whom was a disabled male veteran entitled to preference
in appointment under G. L. (Ter. Ed.) c. 31, § 23.
In my opinion the Director had no authority to certify males for the
position in question when, as you inform me, the fact was that requisition
was made by a school committee for a female school attendance officer.
It is plain from the provisions of G. L. (Ter. Ed.) c. 77, § 12, read in the
light of St. 1912, c. 552, which first introduced into our law a provision
for male or female school attendance officers, coupled with the phrase
"as the (school) committee may decide," that the power to fix qualifica-
tions of sex with relation to any or all of such attendance officers was
specifically vested by the Legislature solely in school committees. Such
attendance officers are now called "supervisors of attendance" by said
G. L. (Ter. Ed.) c. 77, § 12, their title having been changed by amend-
ment of said section 12 through St. 1928, c. 184, § 1, but the legislative
intent as to the power of the school committee to fix such officers' qualifi-
cation as to sex remains unaltered.
Said section 12, as so amended, now reads: —
"Every school committee shall appoint and fix the compensation of
one or more supervisors of attendance, who may be either male or female,
and shall make regulations for their government. Such supervisors shall
not receive fees for their services. The committees of two or more towns
may employ the same supervisors of attendance."
The power to determine such qualifications as to their attendance offi-
cers or supervisors of attendance having thus been given solely to school
committees, to be exercised in accordance with their sound judgment,
power to change, alter or obstruct their determination in this respect
could not properly have been assumed by the Civil Service Commission
bv one of its rules made subsequent to the enactment of said chapter 552
of 1912.
Rule 13, § 1, of the Civil Service Rules is void in so far as it purports to
give such power to change, alter or obstruct the determination of a school
committee in this respect. Section 1 of said Rule 13, reads: —
"Whenever any appointing officer shall make requisition, the Com-
missioner shall certify from such list as he shall deem suitable, and may
recognize the qualification of sex if so stated in the requisition. The
position, if filled, must be filled by the appointment and employment of
one of the persons certified."
P.D. 12. 69
In relation to the position in question, it was the Director's duty to
recognize the quahfications as to sex set forth in the school committee's
requisition and to certify only females, as this requisition was one "espe-
cially calling for women," and the Director had no authority to certify for
the position the names of male veterans or disabled veterans placed on
eligible lists under G. L. (Ter. Ed.) c. 31, § 23, as to whose certification
it provides : —
". . . Upon receipt of a requisition not especially calling for women,
names shall be certified from such lists (lists of veterans) according to
the method of certification prescribed by the civil service rules applying
to civilians. . . ."
You have also asked me whether "if the Director had such a legal right''
to ignore a requisition of a school committee for a female attendance officer
and to certify males for the position, your Commission has power to re-
verse the Director's decision.
Inasmuch as I have expressed the opinion that the Director had no
authority to act in the described manner and hence no "legal right" so
to do, it follows that no answer to your second question is required.
Very truly yours,
Robert T. Bushnell, Attorney General.
Municipal Building Regulations — Authority to restrict use of Land.
May 13, 1941.
Dr. Paul J. Jakmauh, Commissioner of Public Health.
Dear Sir : — You have called my attention to recommendations which
you desire to make to the town of Marshfield concerning the rebuilding
of a section of the town recently destroyed by fire.
You state that you have contemplated the following recommendation : —
"Prevent by regulation the rebuilding of dwellings in this area until
suitable facilities can be provided for diverting all sewage to a point where
it can be disposed of without creating a nuisance or danger to the public
health."
and you ask my opinion as to the right of the town to make such a regu-
lation.
The proposed regulation would prevent landowners from rebuilding
their dwelling houses in a sizable summer colony until some undeter-
mined time when facilities could be provided, presumably by the town,
for a satisfactory sewerage system, different from that which existed be-
fore the fire. While the drainage of the land concerned may, as you state,
be difficult, there is nothing to indicate that the previous method of sew-
age disposal caused a nuisance or was dangerous to the public health.
In my opinion the town would have no authority to make such a regu-
lation as that suggested in the foregoing recommendation.
The town has authority to make reasonable regulations by zoning ordi-
nances or in other ways for the use of land with regard to the public
health, but this absolute and indefinite prohibition would, in my opinion,
constitute an vmreasonable restriction upon the rights of citizens to make
lawful use of their property. Durgin v. Minot, 203 Mass. 26, 31.
The local board of health may make reasonable regulations concerning
the disposal of sewage by the various landowners in connection with their
respective premises and dwellings. A regulation which in effect prohibited
70 P.D. 12.
the use of the landowners' premises for dwellings such as was formerly
permitted, merely because ho general sewerage system for the whole of
the burned area had been constructed, could not be termed reasonable in
view of the long-continued prior use of such premises. The power to regu-
late is not the power to prohibit a reasonable use which may be controlled
by rules applicable to the individual landowners. See Goldstein v. Conner,
212 Mass. 57, 59.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Laiv — Police Poicer — Transient Vendors.
May 15, 1941.
Hon. H. Edward Snow, Chairman, House Committee on Bills in the Third
Reading.
Dear Sir : — Your committee has asked my opinion as to the con-
stitutionality, if enacted into law, of House Bill No. 1441 entitled "An
Act redefining the term 'temporary or transient business' in the laws
relative to transient vendors."
House Bill No. 1441 would amend G. L. (Ter. Ed.) c. 101, by changing
the definition of "temporary or transient business" as set forth in section
1, so that it would no longer mean, as it has heretofore, "any exhibition
and sale of goods, wares or merchandise" carried on in a place not open for
business for at least twelve consecutive months, but would mean any
exhibition or sale of goods, wares or merchandise carried on under the
conditions described.
The substitution in the statute of "or" for "and" by this amendment
would indicate that the word "or" would have a disjunctive effect, so
that an "exhibition" unconnected with any sale would hereafter constitute
a "temporary or transient business" if carried on under the described
conditions.
A "transient vendor" is defined in section 1 of said chapter 101 as "any
person, either principal or agent, who engages in a temporary or transient
business in the commonwealth, either in one locality or in traveling from
place to place selling goods, wares or merchandise."
Sections 2 to 12 of said chapter 101, as amended, contain provisions
requiring a State license with a fee of $25.00 therefor, a bond or deposit of
1500, and the filing of an irrevocable power of attorney appointing the
Director of the Division of the Necessaries of Life an attorney for the
service of process before a person shall commence business as a "transient
vendor," which provisions would be applicable to a person who engages
in conducting an "exhibition" only, under the terms of the statute as
changed by the proposed amendment. Other provisions of said sections 2
to 12, as amended, would not be applicable to one engaged in conducting
an "exhibition" and not making sales.
The constitutionality of the provisions of sections 1 to 13, with relation
to transient vendors, as previously enacted, was assailed in the courts.
The statute was sustained by the Supreme Judicial Court upon the ground
that it was a reasonable exercise of the police power in that it was reason-
ably adapted to protect the public against imposition or fraudulent dealings
by itinerant vendors who, as the court said, "might naturally be supposed
to be free, to some extent at least, from the restraints and influences
P.D. 12. 71
inducing fair and honest dealing which apply to persons established per-
manently in trade in a given locality." The statute, the court further
said, was designed only ''to protect the public against fraud, and to place
the traffic under what the Legislature . . . deems wholesome restraints."
Covimonwealth v. Croioell, 156 Mass. 215.
In so far as the statute, by the proposed amendment, would subject to
the license provision persons engaged in conducting "exhibitions" of
goods, wares or merchandise not connected with any "traffic" in such
commodities and without the element of selling, it would seem impossible
to sa}^ that the requirements of the statute as applied to such persons
reasonably tended to prevent fraud or imposition upon the public. The
relationship of vendor and vendee not being created by an "exhibition"
as such, occasions of fraud or imposition, against which protection might
be needed, cannot fairly be thought possible.
The regulation, as applied to one engaging only in an "exhibition" of
goods, wares or merchandise, in the manner provided for in said chapter
101, would appear to be an arbitrary exercise of legislative authority and
not within the legitimate scope of the police power.
Since the provisions of said chapter 101, sections 1 to 13, as amended by
the proposed bill, would not be separable, all such sections as would be
affected thereby would, in my opinion, be held unconstitutional by our
Supreme Judicial Court.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — License — Price Fixing - — Outdoor Parking.
May 15, 1941.
Hon. Edward W. Staves, Chairman, Joint Committee on Highways and
Motor Vehicles.
Dear Sir : — Your committee has asked my opinion as to the constitu-
tionality, if enacted into law, of House Bill No. 745, entitled "An Act pro-
viding for the bonding of persons engaged in the business of conducting or
maintaining open-air parking places, and fixing a maximum charge for
parking in such places."
This bill would amend G. L. (Ter. Ed.) c. 148, by inserting a new sec-
tion 56 in place of the one previously enacted.
The new section 56 would provide, as does the present section, for
licenses for the business of conducting or maintaining open-air parking
spaces and would make it an offense, punishable by a fine of $100, to en-
gage in such a business without a license. It contains a new provision for
the furnishing, by a licensee, of a bond to indemnify customers from loss.
This new section, however, would fix the maximum price which might be
charged by the owner of such a business for the service which he furnishes.
It would accompUsh this by providing that the exercise of such a license
shall be conditioned upon the charging of no greater price for such service
than that set forth in this bill, namely: "not more than twenty-five cents
for the parking of a motor vehicle ... for any period of not exceeding
twelve hours."
The provisions of the instant bill are not separable and, if enacted into
law, would, in my opinion, be held to be unconstitutional by our courts
as an improper price-fixing measure.
72 P.D. 12.
The business of conducting; or maintaining an open-air parking space
is a private and not a "public" business in the sense in which that of a
utihty corporation, of a common carrier, of an insurance company and of
certain other occupations similar thereto in their direct relations to the
community as a whole, has been said by the courts to be of a "public"
nature, so that price-fixing with regard to the sale of commodities or serv-
ices might properly be indulged in by a legislative body.
The subject matter of this bill does not indicate that it might be sus-
tained as a regulation adopted to check a monopoly or as a measure ne-
cessitated by some emergency in the state, or as falling within any of the
recognized exceptions to the ordinary and well-established rule of law
that in a private business the price to be charged for services rendered or
goods sold must be fixed solely by agreement of the parties concerned.
Tyson v. Banton, 273 U. S. 418; Coppage v. Kansas, 236 U. S. 1, 10, 14.
V Op. Atty. Gen. 484 (and cases there cited).
Though the business which is the subject of this legislation, like certain
other callings, may properly be subject to reasonable regulations calcu-
lated to promote the general public welfare, the power to regulate by
license cannot be employed to impose by indirection price-fixing restric-
tions which, like the ones contained in this bill, would be unconstitutional
as direct mandates upon those carrying on the business to which they
are directed. Wyeth v. Cambridge Board of Health, 200 Mass. 474, 481 ;
VI Op. Atty. Gen. 445, 447.
Very truly yours,
Robert T. Bitshnell, Attorney General.
Marriage — Notice of Intention — License — Residence — Federal
Reservation.
May 15, 1941.
Hon. Frederic W. Cook, Secretary of the Comm^mvealth.
Dear Sir:. — I am in receipt from you of the following communica-
tion : —
"Under General Laws, chapter 207, section 28, may a clerk or registrar
of a city or town within the confines of which is a military or naval reser-
vation of the United States issue a marriage certificate to a person who is
stationed at such reservation and who immediately prior to induction into
the military or naval service dwelt in another city or town within the Com-
monwealth?"
A certificate of intention of marriage, commonly known as a marriage
license or a marriage certificate, provided for by G. L. (Ter. Ed.) c. 207,
§ 28, is not to be issued by a city or town clerk unless proper notices of
intention to be joined in marriage have been filed in accordance with sec-
tions 19 and 20 of said chapter 207, the material portions of which read: —
"Section 19. Persons intending to be joined in marriage in the com-
monwealth shall, not less than five days before their marriage, cause notice
of their intention to be filed in the office of the clerk or registrar of the town
where each of them dwells, or, if they do not dwell within the common-
wealth, in the office of the clerk or registrar of the town where they pro-
pose to have the marriage solemnized. . . .
Section 20. The clerk or registrar shall require written notice of
intention of marriage, on blanks furnished by him, containing such in-
formation as is required by law and also a statement of absence of any
P.D. 12. . 73
legal impediment to the marriage, to be given him under oath, by both of
the parties to such intended marriage if both dwell in his town, or, if the
parties dwell in different towns within the state, or if one dwells outside
the state, by the party dwelling in his town, or, if both dwell outside the
state, by both such parties ; ..."
It is plain from a reading of the foregoing sections in the light of the
long Hne of earlier enactments from which they derive, that the verb "to
dwell", as therein employed by the Legislature is synonymous with the verb
"to reside."
It follows, then, from the provisions of the foregoing sections that a
person in the military service of the United States must file a notice of his
intention to be married in that city or town wherein he has his residence.
The determination of the place of residence of a person is commonly a
question of fact. Doyle v. Goldberg, 294 Mass. 105, 108; Mooar v. Harvey,
128 Mass. 219.
The clerk of a city or town has authority to use sufficient means to in-
form himself as to the residence of one filing a notice of intention of mar-
riage under the authority of section 35 of said chapter 207.
A person's residence, ag a matter of law, may be said to be that place
where he has his home with no present intention of changing the same.
Marlborough v. Lynn, 275 Mass. 394; Briggs v. Inhabitants of Rochester, 16
Gray 337; Cambridge v. West Springfield, 303 Mass. 63-67.
It is true that one in the military or naval service, through a particular
combination of circumstances coupled with a specific intention so to reside,
may have a residence established in a place under the e.xclusive juris-
diction of the Federal Government (Attorney General's Report, 1930,
p. 89). However, it is probable, in the generality of cases of persons in-
ducted into the military or naval service of the United States, that, by
reason of the peculiar temporary character of such service and the con-
ditions surrounding the movements of enlisted men subject to orders, a
soldier or sailor will, at least for a considerable period subsequent to his
entering the service, have the same residence as before his induction into
the army or navy and may be said still to "dwell" in that city or town of
which he was an inhabitant before such induction. In any particular
instance where such is the case, the clerk of the city or town wherein the
reservation lies is not the proper authority to issue to the person filing such
a notice of intention the certificate of intention of marriage described in
said section 28.
Very truly yours,
Robert T, Bushnell, Attorney General.
Civil Service — Reserve Police Officers — Separation from Service —
Reinstatement.
May 21, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have asked my opinion upon the following ques-
tions: —
"Is it legal under G. L. chapter 31, section 46C, to reinstate as a reserve
police officer a former member of the Holyoke Police Department, whose
resignation as patrolman was accepted while under suspension, pending
disposition of charges?
74 P.D. 12.
Is the position of reserve police officer in the same class and grade as
that of patrolman?"
The answer to each question is "Yes."
The actual separation from the service of the police officer to whom
you refer was caused, as a matter of law, by his resignation, not by his
prior suspension.
His separation from the service, therefore, was not "through fault or
delinquency" of his own, as the quoted words are used in G. L. (Ter. Ed.)
c. 31, § 46C. His reinstatement, accordingly, may not properly be made
under the provisions of said section 46C, which relate solely to one who
has become separated "through fault or delinquency."
Since this employee's separation was occasioned by resignation and not
through "fault or delinquency of his own," he may be reinstated by
virtue of Civil Service Rule 23, section 3, which in its applicable part
reads : —
"With the consent of the Commissioner, upon good cause shown, an
appointing officer may reinstate in the same position or in a position in
the same class and grade any person who has been separated from the
service; ..."
It is true that the further provisions of said Rule 23, section 3, with
relation to the non-reinstatement of persons discharged for cause, are no
longer effective. Those provisions are in conflict with the specific terms of
said section 46C. The effect of the terms of said section 46C is to make
applicable to persons discharged for cause virtually the same relief afforded
by the above-quoted portion of the rule for those separated without fault
or delinquency. The above-quoted provisions of the rule, however, are not
in conflict with any of the sections of said chapter 31 and are in force and
apply to the present case.
The position of a patrolman is that of a member of a regular police
force. That position and the position of a member of the reserve police
force of a city, by virtue of Civil Service Rule 4(1), are placed in the same
class (Class 15) and are in the same grade. There is only one grade
established for Class 15. The places referred to in Rule 4, under "Class
15," by the letters a, h, c and d, are each a sub-classification and not a
"grade." The word "grade" is employed to indicate another form of
differentiation of places within a "class," as exemplified by its use in con-
nection with Class 3, Class 9 and Class 27 in said Rule 4.
"Class 15" in said Rule 4 is described as —
"Class 15. Police of other cities.
a. The regular and reserve police forces, and all persons doing per-
manent police duty."
Since "the regular and reserve police forces" are in the same class and
•grade, it follows that the patrolman to whom you refer in your first ques-
tion, having been separated from the service by resignation and not
through fault or delinquency of his own, may be reinstated in the posi-
tion of reserve police officer, which is in the same class and grade as the
position in the regular force which he formerly occupied.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 75
Civil Service — Provisional Appointments.
May 28, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have asked my opinion upon the following ques-
tion : —
"Can a person who has been given a provisional temporary appoint-
ment to fill a temporary position under section 15 of chapter 31, General
Laws, for two periods of ninety days, be appointed on a provisional basis
to a permanent position in the same or another department under section
15 of chapter 31, General Laws, for the time allowed by law (six months)
in the same twelve month period?"
In an opinion given you on April 2, 1941, I stated to the effect that
you did not have "the right to allow a provisional temporary appoint-
ment of a person for a period of 180 days in a twelve-month period to a
position which is actually a permanent one" (even if wrongly called a
temporary one) "and after that to permit a provisional permanent appoint-
ment of the same person to the same position."
In answer to your present question I advise you that a person who has
been given a provisional temporary appointment to fill a position which
is in fact and law a real temporary position, for two periods of ninety
days, may thereafter be appointed on a provisional basis to a permanent
position in the same or another department.
Section 15 of G. L. (Ter. Ed.) c. 31, the statute under which appoint-
ments of these types are made, contains no prohibition upon the provisional
appointment of a person to a permanent position by reason of the fact
that such person has previously had one or more provisional temporary
appointments to a temporary position.
Very truly yours,
Robert T. Bushnell, Attorney General.
Criminal Law — Continuance — Process.
May 28, 1941.
Hon. Arthur T. Lyman, Commissioner of Correction.
Dear Sir: — I have your communication submitting two questions
for my opinion. The first question is as follows: —
"When a defendant has been lodged in the common jail on a mittimus
for continuance from a district court, upon whom does the duty fall of
presenting the defendant in court on the date of continuance?"
In my opinion this duty falls upon the officer ordered to do so by the
court.
G. L. (Ter. Ed.) c. 276, § 37, provides: —
"If the defendant fails to recognize, he may be committed to jail by
an order stating concisely that he is committed for further examination
on a future day to be named in the order, and on the day named he may
be brought before the court or justice by a verbal order to the officer who
made the commitment, or by a written order to a different person."
Thus, the court may verbally order the officer who made the commit-
ment to bring the defendant before it, or may issue a written order "to a
76 P.D. 12.
different person." I find no judicial definition of the phrase quoted, but
since such an order is a form of criminal process (see Adajns v. Vose, 1 Gray
51), it may be directed only to an officer qualified to execute such process.
Cf. G. L. (Ter. Ed.) c. 218, § 37. These include the sheriff and his deputies
(G. L. [Ter. Ed.] c. 37, § 11); under certain circumstances a special sheriff
(G. L. [Ter. Ed.] c. 37, § 5); constables (G. L. [Ter. Ed.] c. 41, § 94); the
chief of police and police officers of cities and towns (G. L. [Ter. Ed.],
c. 41, § 98); court officers of the court issuing the precept (G. L. [Ter.
Ed.] c. 218, § 60) ; and the probation officers of that court when performing
their official duties (G. L. [Ter. Ed.] c. 276, § 90).
Your second question reads —
"Is it the duty of the court officers of a district court to commit the
defendant or prisoners to the jail or house of correction or is it the duty of
the arresting police department?"
My answer is the same as to your first question. The mittimus may be
directed to any officer authorized to serve criminal process. G. L. (Ter.
Ed.) c. 218, § 37.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Welfare — Children — Boarding Homes.
May 28, 1941.
Hon. Arthur G. Rotch, Cornmissioner of Public Welfare.
Dear Sir : — In a recent letter you advise me that an agent of the
Department of Public Welfare, acting under authority of G. L. (Ter. Ed.)
c. 119, § 28, caused certain children to be removed from a boarding home,
and request my opinion as to whether your department has authority,
under section 29 of chapter 119, to notify the person conducting the said
boarding home "that she shall take into her home no children under seven
years of age without a permit."
In my opinion, your Department has such authority, under the express
terms of G. L. (Ter. Ed.) c. 119, § 29, which provides, in part, that —
"The department may notify the person from whose care or custody a
child has been taken under the preceding section that no child of which
he is not the legal guardian shall, without a permit from the department,
be received or maintained by him."
Very truly yours,
Robert T. Bushnell, Attorney General.
Settlement — Veteran — Derivative Settlement.
May 28, 1941.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — I am in receipt of your letter relative to the settlement of a
certain veteran, who I assume to have been qualified by his service to
receive aid or relief under G. L. (Ter. Ed.) c. 115.
St. 1926, c. 292, now substantially embodied in G. L. (Ter. Ed.) c. 116,
§ 5, to which you direct my attention, like similar statutes concerning set-
tlements, is not retroactive in the sense that it apphes to settlements
P.D. 12. 77
which ended before it became effective, so as to revive them. Brockton v.
Conway, 278 Mass. 219; Lexington v. Commonwealth, 279 Mass. 572.
By the terms of said chapter 292, however, the settlement of a veteran
quahfied by his service to receive aid or relief under G. L. (Ter. Ed.) c.
115, will be defeated by his "failure to reside in the commonwealth for five
consecutive years." Those five consecutive years may have occurred, in
part, before the effective date of said chapter 292. Had the Legislature
inserted the word "hereafter" in the quoted phrase next after the word
"failure" or next after the word "reside," it would have been capable of a
different interpretation in this respect. See Needham v. Fitchhurg, 237
Mass. 354-357. This interpretation of the statute does not give to it a
"retroactive" effect in the accepted meaning of the quoted word. As was
said in Laird v. Car-ton, 196 N. Y. 169 : —
"Such an application of the statute is not so much retroactive as active
upon an existing condition of things."
By the statute in force prior to 1926 (G. L. c. 116, § 5, as amended by
St. 1922, c. 479), it was provided generally that a settlement should be lost
by failure to live in a town where settlement had been acquired, for five
consecutive years, but, as to a veteran, it was stated that his settlement
continued "while [he] actually resides in the commonwealth." The
further amendment of said section 5 by St. 1926, c. 292, clarified the above
provisions without changing their meaning, by enacting that the settle-
ment of a veteran "should not be defeated except by failure to reside in the
commonwealth for five consecutive years."
The actual effect of St. 1926, c. 292, in this respect was in reality only to
re-enact the existing provisions of the older act, St. 1922, c. 479.
With relation to the settlement of the veteran to whom you specifically
refer, you have set forth that he had a settlement in Greenfield in 1924;
that in 1924 he left the Commonwealth for New Jersey and did not again
reside in Massachusetts until 1931.
It follows that the veteran, by reason of absence from the Common-
wealth for a period of some seven years, lost the settlement which he
formerly had in Greenfield.
Upon the facts as you have stated them in your letter, he does not ap-
pear to have attained a new settlement in Massachusetts since his return
in 1931; therefore, his minor daughter, born in 1928, of whom you write,
never acquired a settlement within the Commonwealth through him.
Consequently, when she was treated at the Boston City Hospital in 1934,
she was a person without settlement in the Commonwealth, and charges
for her treatment in that institution would be due to the City of Boston
from the Commonwealth and not from Greenfield.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Welfare — Merit System — Rules — Examinations
— Federal Social Security Board.
May 29, 1941.
Joint Committee on Civil Service.
Gentlemen : — In a recent communication requesting my opinion on
certain questions of law, you have submitted to me the following state-
ment of facts : —
78 P.D. 12.
"In September, 1940, the Massachusetts Civil Service Commission, pur-
porting to act under rules promulgated by the Massachusetts Department
of Public Welfare, conducted an examination with respect to certain posi-
tions in the welfare departments of cities and towns not then subject to
the Civil Service laws. Doubts have been expressed as to the authority of
the Civil Service Commission and the Department of Public Welfare to
conduct said examination. Certain representatives of the Social Security
Board have insisted that full effect be given to the said examination, even
if legislative action is now required to validate it. The procedure followed
with respect to the examination differed from that generally followed in
this Commonwealth in connection with the extension of the Civil Service
laws to positions not theretofore within the scope of such laws. It has been
proposed by certain members of the Committee on Civil Service that it
recommend legislation extending the scope of the Massachusetts Civil
Service laws to cover additional positions as required by the Social Security
Board, but providing for the giving of new examinations in accordance
with the usual Massachusetts procedure, including a special qualifying
examination for incumbents."
With respect to the foregoing factual statement, you have requested
my opinion on the following questions : — \
I. If the Legislature should (a) refrain from validating the afore-
mentioned examination of 1940, and (b) extend the operation of the Civil
Service laws to include positions in local welfare agencies to the extent
required by the rules and regulations of the United States Social Security
Board, and (c) provide for new examinations to be given with respect to
such positions, including a separate qualifying examination for incum-
bents, would the United States Social Security Board, after the enact-
ment of such legislation, have power or authority to cause Massachusetts
to be denied Federal grants for old age assistance or aid to dependent
children on the ground that the Massachusetts plan does not provide for
"the establishment and maintenance of personnel standards on a merit
basis" as required by the Social Security Act, as amended?
II. If in the circumstances described in question I above, the United
States Social Security Board should cause or seek to cause the Common-
wealth of Massachusetts to be denied Federal grants for old age assistance
or aid to dependent children for the reasons stated, would the Common-
wealth of Massachusetts have any legal redress to compel the payment
of such grants to it?
At the outset, I wish to call to your attention the fact that the powers
of the Social Security Board are dependent upon Federal statutes and
their construction. My views as to the correct interpretation of Federal
statutes are, of course, not binding upon any branch of the Federal Gov-
ernment, and this fact must be borne in mind in your considerations as to
the course to be pursued by your committee and by the Legislature as a
whole. However, I shall state my opinion with respect to the questions
which you have submitted, with the hope that some assistance may
thereby be given to you in your deliberations.
In my opinion the Social Security Board would have power to cause
Massachusetts to be deprived of Federal grants for old-age assistance and
for aid to dependent children under the circumstances described in Ques-
tion I above, and no legal redress would be available to the Common-
wealth against the Social Security Board in the event of such deprivation.
P.D. 12. 79
While the following discussion refers specifically to grants for old-age
assistance, it applies in all substantial respects as well to grants for aid to
dependent children.
The Social Security Law was enacted in 1935 (49 Stat. 620; 42 U. S. C.
§§ 301-306). It provided, among other things, that grants should be
made from the United States Treasury to those states which have and
administer approved plans for aid to aged persons. Approval of such
state plans by the Social Security Board and its certification of payments
to be made by the treasury were made conditions precedent to the pay-
ment of such grants to the states. In February, 1936, the Massachusetts
plan for old-age assistance was approved by the Social Security Board,
and Federal old-age assistance grants have been made to this Common-
wealth since that time. In August, 1939, the Social Security Act was
amended so that it then provided in part as follows : —
"Sec. 2. (a) A State plan for old-age assistance must ... (5) pro-
vide such methods of administration (including after January 1, 1940,
methods relating to the establishment and maintenance of personnel
standards on a merit basis, except that the Board shall exercise no authority
with respect to the selection, tenure of office and compensation of any indi-
vidual employed in accordance with such methods) as are found by the
Board to be necessary for the proper and efficient operation of the plan;
. . ." (49 Stat. 620, as amended by 53 Stat. 1360; 42 U. S. C. § 302.)
The Social Security Act also provides : —
"Sec. 4. In the case of any State plan for old-age assistance which
has been approved by the Board, if the Board, after reasonable notice
and opportunity for hearing to the State agency administering or super-
vising the administration of such plan, finds —
(2) that in the administration of the plan there is a failure to comply
substantially with any provision required by section 2 (a) to be included
in the plan: the Board shall notify such State agency that further pay-
ments will not be made to the State until the Board is satisfied . . . that
there is no longer any such failure to comply. Until it is so satisfied it
shall make no further certification to the Secretary of the Treasury with
respect to such State." (49 Stat. 622;. 42 U. S. C. § 304.)
It is apparent from the foregoing quotations that the Social Security
Board is given considerable discretionary power with respect to the methods
of administration which it may require to be included in a state plan for
old-age assistance as a condition precedent to the Board's continued cer-
tification of payments from the United States Treasury. The precise
extent of this power does not appear to have been passed upon in any adju-
dicated case. However, decisions in analogous cases would indicate that
the requirements promulgated by the Social Security Board are to be sus-
tained if they appear to bear some reasonable relationship to the objective
defined by Congress and if they do not appear to be arbitrary, capricious
or unreasonable. This is particularly so where the administrative decision
is based upon findings of fact. See Swayne & Hoyt, Ltd. v. United States,
300 U. S. 297, 304; Dismuke v. United States, 297 U. S. 167, 172; General
Outdoor Adv. Co. v. Dept. of Public Works, 289 Mass. 149, 180.
Acting under authority conferred by the amendment of August, 1939, the
Social Security Board, on November 1, 1939, promulgated "Standards
80 P.D. 12.
for a Merit System of Personnel Administration." Among other provi-
sions contained in this document are the following: —
"Rules and regulations to effectuate a merit system in accordance with
these minimum standards shall be adopted by the State agencies and sub-
mitted as a part of the public-assistance plan, ... to be reviewed by the
Board under the Social Security Act. . . . (Page 1.)
An employee of an agency in which no comparable merit system has
been in operation may obtain status in his present position either through
open competitive or qualifying examination as specified in the merit-
system rules and regulations. Such rules and regulations may permit an
employee in the service of the agency on the date of the issuance of these
standards to be automatically admitted to the examination covering the
position he held on such date, and may permit him to be retained at the
discretion of the State agency, providing he attains a passing grade in such
examination." (Page 4.)
It has been suggested that the phrase "either through open competitive
or qualifying examination," appearing in the last quoted paragraph, would
authorize the giving of a separate non-competitive qualifying examination
to persons holding positions to which the civil service laws are being
extended. (C/. Mass. G. L. [Ter. Ed.] c. 31, § 15, as amended.) How-
ever, the executive director of the Social Security Board has recently
ruled that no such separate qualifying examination is contemplated or
authorized })y the regulations of the Social Security Board, and that
incumbents as well as applicants for new appointments must take the
regular competitive examination which, as to incumbents, partakes of the
character of a qualifying examination in that they need not meet educa-
tional or experience requirements, and may retain their positions if they
merely pass the examination. (Letter from Oscar M. Powell, Executive
Director, to Arthur G. Rotch, Commissioner of Public Welfare, April 26,
1941.) Statutes establishing merit systems and procedures, consistent
with the interpretation of the executive director of the Social Security
Board, have been enacted in other states. (See e.g., Wis. Laws of 1939,
c. 533, § 4.) Under such an interpretation, the giving of a separate non-
competitive examination to incumbents different from the examination
given to non-incumbent applicants would not comply with the minimum
requirements promulgated by the Social Security Board. If the inter-
pretation announced by the executive director should be adopted by the
Social Security Board, the latter would then have authority to invoke the
provisions of section 4 of the Social Security Act quoted on pages 3 and
4 above, and cease to certffy further payments until the Federal standards
had been met.
In my opinion such an interpretation of the Federal "standards" and
such action by the Social Security Board would be sustained by the courts,
even though opinions may differ as to the soundness of the Board's judg-
ment with respect to this aspect of personnel administration.
I wish very much that I could reach a different conclusion.
Many officers and employees of local welfare boards in this Common-
wealth have devoted their lives to welfare work. Despite the fact that
their knowledge of local conditions' is complete and that they justly enjoy
the confidence and respect of their communities, many of them will doubt-
less be thrown out of employment because they lack certain formal educa-
P.D. 12. 81
tion or are many years removed from contact with written examina-
tions.
Recently, several thousand Federal employees have been included
within the Federal Merit System by Executive order, without being
subjected to any examination whatsoever. Yet the sovereign Common-
wealth of Massachusetts is ordered by the executive director of a Federal
bureau to pursue an entirely different course with respect to its administra-
tion of personnel standards.
If the Commonwealth declines to obey this Federal edict, it may then
treat these employees in accordance with Massachusetts' conception of
justice and sound administration — apparently at variance with the
views expounded by representatives of the Social Security Board. By
so doing, it will face the loss of Federal old-age assistance grants vitally
needed by aged residents of this Commonwealth, even though the funds
available for such grants are in a large measure collected in Massachusetts
by the Federal Government in the form of Federal taxes. If the Common-
wealth complies with the edict of the executive director of the Federal
bureau, this compliance will unjustly effect the discharge of faithful and
trusted employees engaged in local welfare work in Massachusetts.
This unhappy situation is created by the Federal statute which con-
ferred such broad powers upon the Social Security Board and by the
Board's exercise of its said powers.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Examination — Applicant — Domicile.
June 2, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have informed me that a state-wide civil service
examination has been held, "limited to persons domiciled in Massachusetts
for one year next preceding the date of filing application."
You ask my opinion as to the domicile of a certain person who took the
examination, and advise me of the following facts relative to such person's
domicile : —
"The man and his family, consisting of his wife and several children,
moved to Worcester in 1932. On March 29, 1934, he obtained employ-
ment in New Jersey. His wife and children remained in Worcester.
From that time on he contributed to the support of his family regularly;
paid taxes in the City of Worcester; and spent his vacation and holidays
with his family and returned to be with them as often as possible. His
children all attended Worcester schools. His life insurance policies all
carried Worcester residence. He apparently hoped to ultimately obtain
employment in Massachusetts and return to live with his family. He be-
came a registered voter in New Jersey and has been assessed a poll tax in
Jersey City since 1935. He was recorded in the field books of the Board
of Assessors of the City of Worcester during the years 1935, 1936, and
1937, and his name appeared in the Worcester directory during 1936, 1937,
1938, and 1939 (no check having been made in 1940). This applicant filed
his application in this office on June 20, 1939."
The determination of the domicile of a person is mainly a question of
fact. Feehan v. Tax Commissioner, 237 Mass. 169, 171; Hutchins v.
Browne, 253 Mass. 55, 57; Hayes v. Hayes, 256 Mass. 97.
82 P.D. 12.
With relation to the principles of law applicable to the ascertainment of
domicile, the Supreme Judicial Court has said in Tuells v. Flint, 283 Mass.
106, at page 109: —
"General principles governing the nature, acquisition and change of
domicil are settled. An exact and comprehensive definition of domicil is
difficult. In general it is said to be the place of one's actual residence with
intention to remain permanently or for an indefinite time and without any-
certain purpose to return to a former place of abode. Every one must
have a domicil somewhere. Every one has a domicil of origin. A domicil
once established continues until a new one is acquired regardless of changes
in temporary sojourn. Mere absences from home even for somewhat pro-
longed periods do not work a change of domicil. Intention without the
concurrence of the fact of residence is not sufficient to change or to create
domicil. Both must coexist. Aspiration, hope, desire or mere verbal
assertion, although evidence of intention, cannot overcome the force of
irrefutable facts. Cases arise in which there is a distinction between
domicil and residence. A person may have a residence in one place for
various reasons comparatively temporary in nature such as performing the
duties of an office, transacting a business, seeking improvement in health,
pursuing pleasure or visiting relatives, and yet have his permanent home or
domicil in a different place."
Assuming that the person in question acquired a domicile in Worcester in
1932 by establishing a residence there, with no existing intention of remov-
ing his home therefrom, upon the facts found by you and set forth in your
letter he would not appear as a matter of law to have changed or lost
such domicile one year prior to the date of his application, June 20, 1939.
The fact that this person lived in New Jersey, where he obtained em-
ployment from 1934 to 1939, is not sufficient to show a change of domicile
in view of the further fact that he kept a home in Worcester where he sup-
ported his wife and children and paid taxes and spent his vacations.
Nor is the fact that he became a registered voter in New Jersey and was
assessed a poll tax sufficient of itself to show a change of domicile from
Worcester, since, as you state, "he apparently hoped to ultimately obtain
employment in Massachusetts and return to live with his family."
The matter of domicile, presenting, as it does, a question of fact, I am of
the opinion that, upon the facts as you have stated them, the person to
whom you refer can properly be found to have had a domicile in Massa-
chusetts for one year preceding June 20, 1939. Atwood v. Akoood, 297
Mass. 229; Winans v. Winans, 205 Mass. 388; Katz v. Katz, 274 Mass.
77; Sullivan v. Ashfield, 227 Mass. 24.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Appointments — Seniority.
June 6, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — In a recent letter you stated that "the roster of Metropoli-
tan District Commission, Sewerage Division, contains a number of persons
classified under Civil Service who were appointed 'permanent for the
duration of the work provided for under chapter 433 of the Acts of 1937
and chapter 459 of the Acts of 1938.'"
P.D. 12. 33
You have asked my opinion "as to whether or not at the completion
ot the work persons so appointed must be laid off prior to men who have
a later seniority date but are paid from the general appropriation."
1 assume from your letter that the persons concerning whose status and
seniority rights you inquire were appointed to positions coming within
the scope of chapter 31 of the General Laws and of the rules promulgated
pursuant thereto. Unlike the statute which created the Metropolitan
District Water Supply Commission (St. 1926, c. 375, § 2), the statutes
^ referred to in your letter did not exclude from the operation of the Civil
Service Laws the employees working on the new sewerage projects Con-
sequently the rights of such employees are dependent upon the application
ot the^ general provisions of chapter 31 of the General Laws and of the
Civil Service Rules to the factual situations involved.
In my opinion the purported limitations contained in the appointments
were ot no legal consequence. It is obvious that the appointments cannot
be regarded as provisional or temporary, since they do not specify that
they are hmited to periods of ninety days or less as required by law and
bv S^'iq.'q 7na'I^o^'%- ^r%^-^- S^T ^^-^ '■ 31' § 15, as amended
7 ^ -, ; ' ""-.^r^^' i^' ^'^'^ ^^^^^^^ ^"le^ 21, 24; O'Brien v. Inspector
of Buildings of Lowell, 261 Mass. 351, 354. For a similar reason the ap-
pointments to which you referred cannot be regarded as emergency
appointments, which are limited by statute to a maximum of two ten-dav
periods. G. L (Ter. Ed.) c. 31, § 15, as amended by St. 1939, c. 506, § 2-
Civil Service Rule 25 There is no authority conferred by statute or by
the Civil Service Rules permitting the making of appointments which
are not to be permanent but which may well exceed the Hmitations specifi-
cally prescribed for provisional, temporary or emergency appointments.
Lj. trye v. School Cornmittee of Leicester, 300 Mass. 537, 540.
It follows, therefore, that the appointments to which you referred must
be regarded as permanent appointments, and that since the expiration of
their respective probationary periods, the appointees have held employ-
ment m the classified pubhc service of the Commonwealth, with all of the
rights and privileges, including seniority, accruing to them by virtue of
ttiat status. 1 he fact that their compensation has been paid from a special
tund rather than from general appropriations does not alter the status
ot such appointees or diminish their rights.
Replying specifically to your question, it is my opinion that the em-
ployees referred to by you may not be laid off prior to other employees
dat^^''^ ^""^"^ general appropriations, but who have later seniority
Very truly yours,
Robert T. Bushnell, Attorney General
Registration of Funeral Directors — Maintenance of Establishment.
T\/r TT r, r^ T.. June 11, 1941.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — I am in receipt through you of a request from the
iioard ot Registration in Embalming and Funeral Directing for my opinion
as tx) the meaning of the verb "maintain" as used in G. L. (Ter. Ed ) c 112
§83, as amended, m connection with the registration of funeral directors'
Itie pertinent portions of said section 83 read: —
84 P.D. 12.
"Applications for registration as embalmers or as funeral directors,
signed and sworn to by the applicant, shall be made on blanks furnished
by the board. . . .
Each applicant for registration as a funeral director, who shall furnish
the board with satisfactory proof that he is a citizen of the United States
. . . , shall be registered by the board as qualified to be licensed under sec-
tion forty-nine of chapter one hundred and fourteen as a funeral director;
provided, that he furnishes satisfactory proof to the board that he main-
tains within the commonwealth an undertaking establishment so located,
constructed and equipped as to permit the sanitary handling of dead human
bodies and maintains in such establishment suitable equipment for such
handling."
The verb "maintain", when used as in this section with relation to a
business establishment and its equipment, means to keep in existence,
operation and condition.
The legislative requirement that an applicant for registration as a funeral
director must satisfy the Board that he "maintains" an undertaking estab-
lishment means that such applicant must show by satisfactory proof that
he operates such an establishment as a going business with a right to the
possession of the premises where the business is carried on, sufficient in
character to ves^ in him the authority to conduct, direct and keep up the
establishment. This requirement will be satisfied if the applicant is the
sole or joint owntr, a lessee or a member of a partnership which is itself
an owner or lessee of the premises and business. This requirement will
not be satisfied by the fact that the applicant has only a financial, invest-
ment in the establishment or is a mortgagee thereof or a stockholder in a
corporation owning or leasing premises and business.
Furthermore, the said section requires that the applicant shall also
satisfy the Board th:;t he "maintains" in such an establishment suitable
equipment for the handling of dead human bodies.
This requiremert will be satisfied if the applicant has in his place of
business such suitable equipment, which he owns either solely or jointly,
or as a member of a partnership. It will also be satisfied if he leases such
equipment under a lee',- j which gives him possession of and the authority
to control and use the equipment, and either by its terms or by those of
some ancillary agreement places upon him the duty to keep the equipment
in repair and condition.
In relation to a specific instance which is referred to in your letter, as
to which you state that an applicant leases a portion of the premises of an
establishment and is allowed by the lessor, who is also a funeral director,
to conduct his business coincidentally with the latter's and to use equip-
ment of the lessor, it cannot be said as a matter of law that the applicant
"maintains" suitable equipment, as the quoted word is employed in said
section 83.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 85
State Examiners of Electricians — Hearings — Witnesses.
June 11, 1941.
Albert F. Bigelovv, Esq., Chairman, House Committee on Ways and
Means.
Dear Sir: — You recently submitted to me a copy of House Bill No.
68 which would, if enacted, specifically confer upon the State Examiners of .
Electricians authority to summon witnesses, administer oaths and take
testimony at hearings having to do with the suspension or revocation of
electricians' licenses. In behalf of the Committee on Ways and Means,
you requested my opinion "as to whether the Board has the authority
which House Bill 68 would give them."
In my opinion your question requires an affirmative answer.
G. L. (Ter. Ed.) c. 112, §§ 61 and 62, provide in part as follows: —
"Section 61. Except as otherwise provided by law, each board of
registration in the division of registration of the department of civil serv-
ice and registration, after a hearing, may, by a majority vote of the whole
board, suspend, revoke or cancel any certificate, registration, license or
authority issued by it, if it appears to the board that the holder of such
certificate, registration, license or authority, is insane, or is guilty of
deceit, malpractice, gross misconduct in the practise of his profession, or
of any offence against the laws of the commonwealth relating thereto. ...
The said boards may make such rules and regulations as they deem proper
for the filing of charges and the conduct of hearings.
Section 62. Any person against whom charges are filed shall be noti-
fied of the hearing thereof, and may appear with witnesses and be heard by
counsel. . . . Said boards shall have the same powers to summon wit-
nesses to attend such hearings, and to swear them as are conferred upon
city councils and other bodies by section eight of chapter two hundred
and thirty-three, and said section and sections nine and ten of said chap-
ter shall apply to witnesses summoned as aforesaid."
Since the State Examiners of Electricians constitutes one of the boards
or subdivisions within the Division of Registration of the Department of
Civil Service and Registration (Gen. St. 1919, c. 350, §§63 and 64; G. L.
(Ter. Ed.) c. 13, §§ 1, 9 and 32, as amended by St. 1939, c. 238, §§ 1 and
8), the said Examiners must be deemed to have the power and authority
conferred by sections 61 and 62 of chapter 112 quoted above, unless the
words "each board of registration" appearing at the beginning of section
61 are to be construed literally. From an examination of the pertinent
statutes and their histories, it is my opinion that the quoted phrase should
not be construed so as to refer only to boards whose official titles include
the word "registration," but that all of the boards and subdivisions of the
Division of Registration which perform similar functions are compre-
hended within the meaning of section 61 and section 62.
G. L. (Ter. Ed.) c. 112, §§ 61 and 62, originated in Gen. St. 1917, c.
218, §§1 and 2, the provisions of which were almost identical with those
contained in the present law. There was one material difference. The
1917 statute conferred the specified powers with respect to summoning of
witnesses upon the "boards of registration in medicine, dentistry, phar-
macy and veterinary medicine" and did not refer in any way to the other
boards of registration or boards of examiners which were in existence at
that time (Gen. St. 1917, c. 218, §§ 1 and 2). This limitation was retained
86 P.D. 12.
in a subsequent amendment (Gen. St. 1918, c. 257, § 296) and was carried
into the General Laws of 1921 (G. L. (1921) c. 112, §§ 61 and 62).
Shortly after the General Laws of 1921 went into effect, section 61 of
chapter 112 was amended so that the grant of powers and authority here-
inbefore discussed was extended to "each board of registration in the
division of registration of the department of civil service and registra-
tion." St. 1921, c. 479, § 1, now G. L. (Ter. Ed.) c. 112, § 61. Bearing in
mind the fact that the Division of Registration of the Department of
Civil Service and Registration was created in 1919 (Gen. St. 1919, c. 350,
§§ 63, 64; G. L. (1921) c. 13, §§ 9-32) and included several boards of
registration and boards of examiners other than the four named in G. L.
(1921) c. 112, § 61, it seems clear that the legislative purpose in enacting
the amendment of 1921 was to make the provisions of section 61 applicable
to all of those constituent boards or subdivisions of the Division of Regis-
tration. This legislative purpose is carried out by construing the phrase
"each board of registration in the division of registration of the depart-
ment of civil service and registration" as including each of the boards
within that division, whether the oflficial name of any particular board does
or does not include the word "registration."
The propriety of such a non-literal construction is demonstrated by
the language of the basic statute (Gen. St. 1917, c. 218, §§ 1 and 2), where
the Legislature conferred the aforementioned powers upon "boards of
registration in medicine, dentistry, pharmacy and veterinary medicine,"
whereas the official title of the dental board was " board of dental exam-
iners" (Gen. St. 1915, c. 301, § 1). My opinion is not altered by the
fact that the caption preceding G. L. (Ter. Ed.) c. 112, § 61, reads: "Gen-
eral provisions relative to the boards of registration in medicine, pharmacy
and veterinary medicine, and the board of dental examiners." This same
caption appeared in the General Laws of 1921 prior to the adoption of
the subsequent amendment contained in St. 1921, c. 479, § 1. If, because
of the caption, the statute were now to be construed as limiting the powers
to the four boards named in the caption, no significance whatever would
be attributed to the amendment of 1921. There is no justification for
giving such effect to a pre-existing caption as would completely nullify a
specific legislative amendment.
Whether the enactment of House Bill No. 68 is desirable for the purpose
of eliminating all possible doubt, and thereby increasing the efficiency of
the State Examiners of Electricians, is a matter to be determined by the
Legislature.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — Obligation of Contracts — Abolition of Fall River
Board of Finance.
June 19, 1941.
Hon. Charles G. Miles, Chairman, Joint Committee on Municipal
Finance.
Dear Sir : --- You have asked my opinion as to the constitutionality
of House Bill 2596, which, if enacted, would immediately abolish the Fall
River Board of Finance established by St. 1931, c. 44. In response to
an inquiry from me as to whether there are now outstanding any obliga-
tions of the City of Fall River issued under section 1, 2 or 3 of the 1931
act, you wrote as follows : —
P.D. 12. 87
"The paragraph in your letter which reads 'Are there now outstanding
any obhgations issued under section one, two or three of the statutes of
1931, chapter 44? ' The answer is No."
On the other hand, there has been submitted to me a certificate signed
by. the treasurer-collector of the city of Fall River and dated June 13, 1941,
stating, in substance, that in February and March, 1941, the city borrowed
$2,000,000 in anticipation of revenue and issued notes therefor under
section 3 of chapter 44 of the Acts of 1931; that the city has not set aside
or deposited in trust any moneys to pay them; and that the said notes,
or at least some of them, are still outstanding.
In the light of this certificate from the treasurer-collector of Fall River,
I must assume that you have been misinformed and that there are now
outstanding certain notes issued by the city of Fall River under St. 1931,
c. 44, § 3. My opinion hereinafter stated is based upon that assumption
and upon the further information furnished to me to the effect that the
last of the notes and bonds issued under sections 1 and 2 of the 1931 act
were paid by the city in 1941.
While the question you put is not entirely free from doubt, it is my
opinion that the abolition of the Board of Finance as proposed in House
Bill 2596 would violate the constitutional rights of holders of the afore-
mentioned notes.
In 1931 the Legislature deemed the financial condition of the city of
Fall River to be such as to require drastic legislation which would "in-
augurate and insure necessary economies in the municipal administration"
(Paquette v. Fall River, 278 Mass. 172, 175). In order to carry out this
purpose the Legislature enacted St. 1931, c. 44, which created the Fall
River Board of Finance and vested in that board "complete control over
all the financial affairs of that city." Broadhurst v. Fall River, 278 Mass,
167, 169. The act further provided for the raising of moneys to rehabilitate
the city's credit by the methods described in sections 1, 2 and 3.
Section 16 of said chapter 44 of the Acts of 1931 provided that the
powers and duties of the Board should cease and its existence terminate
on the thirty-first day of December next succeeding the date on which
the last outstanding bond or note issued under section one or two shall
have been paid and discharged. The last of such bonds and notes having
been paid in 1941, the Board's existence will terminate without further
legislation on December 31, 1941.
St. 1931, c. 44, § 17, provides: —
"The provisions of this act shall be incorporated by reference in the
terms and conditions of the bonds and notes issued under authority hereof,
and shall constitute an essential part of the contract or agreement of the
city with the holders thereof; and until all of said bonds and notes, together
with interest thereon, shall have been paid in full, or a sum sufficient for
such payment shall have been set aside and deposited in trust therefor,
the powers and duties of the board as herein specified shall not be di-
minished or abrogated except upon petition of or with the approval of
the board. Th(; bonds and notes issued under authority of this act, if
otherwise negotiable, shall not be rendered non-negotiable by anything
in this act contained."
The fundamental question to be considered here is whether notes
which have been issued under section 3 and are now outstanding are
"notes issued under authority" of the 1931 act.
88 P.D. 12.
Section 3 of the act provides : —
"The said city may borrow in anticipation of revenue during the period
in which the board remains in existence, in the manner and to the amount
authorized by chapter forty-four of the General Laws, except as herein
otherwise provided, but the amount of any loan issued in anticipation
of the revenue of any year, which remains outstanding and unpaid on
August first of the following year, shall be included in the amount to be
assessed by the assessors of said city in the tax levy of said following
year; or, if the tax rate has already been fixed, a special tax levy for a
sum sufficient to pay the amount of such loan remaining unpaid as aforesaid
shall be assessed, committed and collected in the same manner as taxes
for general municipal purposes."
It has been urged that section 3 is merely declaratory of authority con-
ferred upon the city by G. L. (Ter. Ed.) c. 44, and that, consequently,
the notes presently outstanding were issued under authority of the General
Laws rather than under authority of the 1931 statute. In my opinion,
this interpretation is precluded by the very language of section 3, which
expressly authorizes borrowing in anticipation of revenue, and by the
entire structure of the 1931 act, which vests complete control of the city's
finances in the Board of Finance.
The said notes having been issued under authority of the 1931 act, the
provisions of that act are incorporated therein by reference and "con-
stitute an essential part of the contract or agreement of the city with the
holders thereof" (St. 1931, c. 44, § 17). One of the provisions so incor-
porated by reference is that "the powers and duties of the board as herein
specified shall not be diminished or abrogated" except on petition of or
with the approval of the board, until the said notes shall have been paid
or "a sum sufficient for such payment shall have been set aside and de-
posited in trust therefor" (§17). It is my understanding that the board
has neither petitioned for nor approved the termination of its existence,
as proposed in House Bill 2596.
This provision requiring continuance of the powers of the Board of
Finance may well have been a vital factor in inducing the purchase of
section 3 notes referred to in the certificate of the treasurer-collector.
It has been judicially recognized that a requirement of the continued
existence and authority of such a board may be included in a contract
involving the sale of bonds or notes by a public body, and that such a
contractual provision may be rendered secure against future legislation
{Opinion of the Justices, 293 Mass. 589, 605, 607), provided that the term
of the board's existence is limited to a reasonable period of time. This
qualification is met by St. 1931, c. 44, since the existence and powers of
the Fall River Board of Finance must terminate at the close of the year
in which the section 1 and section 2 bonds and notes are paid (St. 1931,
c. 44, § 16), and the time for payment of those bonds is specifically limited
by said sections 1 and 2.
The general principles of law applicable to such contracts are stated
in the Opinion of the Justices, 293 Mass. 589, 599 : —
"It was said in Murray v. Charleston, 96 U. S. 432, 445: 'The truth is.
States and cities, when they borrow money and contract to repay it with
interest, are not acting as sovereignties. They come down to the level
of ordinary individuals. Their contracts have the same meaning as that of
similar contracts between private persons.' This principle finds support
P.D. 12. 89
in Perry v. United States, 294 U. S. 330, 352-353, where occurs the state-
ment that 'Punctihous fulfillment of contractual obligations is essential
to the maintenance of the credit of public as well as private debtors.' . . .
the right to make binding obligations is a competence attaching to sover-
eignty."
In view of the considerations set out above, it is my opinion that House
Bill 2596, if enacted, would by premature abolition of the Board of Finance
impair the obligations of the contracts existing between the city of Fall
River and the holders of the outstanding notes in violation of section X
of Article I of the Constitution of the United States.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Employee — Receipt of Royalties — Improper Employment.
June 20, 1941.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — In a recent letter you asked me if I "see any objection"
to a certain maintenance engineer in the service of your department "re-
ceiving royalties" from a corporation which sells an article or product
patented by him, such royalties resulting in part from sales of such article
or product to the Commonwealth.
It appears from the statement of facts which you have laid before me
that it is part of the duty of this engineer, as an employee of the Common-
wealth to approve requisitions for the purchase by the Commonwealth
of products to be used in your department for the same purpose as that of
the article patented by him. It also appears that the particular article or
product, from whose sale the employee will be entitled to receive royalties
from the vendor, may be in competition with other similar products. It
may well be doubted whether the employee in approving requisitions could
act disinterestedly if his approval necessitated the exercise of any discre-
tion as to the particular make of the article or product to be purchased.
His performance of duties which would involve his approving or disapprov-
ing requisitions in such a situation, where the product, in the promotion
of whose sales he could scarcely fail to be interested, was in competition
with others, would, in my opinion, be objectionable.
With relation to purchases by the Commonwealth of the article or prod-
uct from which the employee derives royalties, for use in other depart-
ments, as to which purchases he has no duties whatsoever to perform, his
connection with the vendor through his receipt of royalties from the latter
would not appear to be objectionable; provided that he no longer exercises
authority to approve or disapprove requisitions for purchases thereof by
your department.
Very truly yours,
Robert T. Bushnell, Attorney General.
90 P.D. 12.
Civil Service — Reserve Police Officer — Permanent Intermittent Patrolman
— Maximum Age.
June 24, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — In a recent letter you requested my opinion upon the fol-
lowing questions : —
"Is the status of a permanent intermittent patrolman the same as that
of a reserve police officer?
If the status is the same, would the maximum age limit of fifty years be
recognized in appointments of permanent patrolmen from the list of per-
manent intermittent officers in accordance with the provisions of chapter
39of the Acts of 1941?"
1. I answer your first question to the effect that a "permanent intermit-
tent patrolman" does not occupy the same status as a reserve police officer.
The position of reserve police officer is created, and its powers and duties
specifically designated by statute (G. L. [Ter. Ed.] c. 147, §§ 11-13A and
13B). It exists in those cities and towns which have a reserve force pro-
vided for by special act, and in those which accept the provisions of said
§§ 11-13 or have accepted corresponding provisions of earlier laws. Re-
serve officers' appointments are required by said section 13B to be made
from eligible lists established for such positions on which their names were
placed on or before August 3, 1939. The mode of promotion from a re-
serve to a regular police force is dealt with in said section 13 as regards
towns, and as regards both cities and towns in G. L. (Ter. Ed.) c. 31,
§ 20A, as most recently amended by St. 1941, c. 39.
The position of a "permanent intermittent patrolman" is not mentioned
in the statutes nor in the rules of the Civil Service Commission. I am in-
formed that it hats been the practice of the Civil Service Commission to
certify names from an eligible list, upon requisition of an appointing author-
ity, for a patrolman or police officer whose duties were described as of the
"permanent intermittent" type; that this has been done with a single
exception only in respect to municipalities which have established no
reserve force. A "permanent intermittent patrolman," appointed as a
result of the foregoing procedure, occupies a position resembling that of a
reserve officer appointed under the terms of the statute, but it cannot be
said as a matter of law that it is the same position as that which the re-
serve officer holds, nor that his "status" is the same. The "permanent
intermittent patrolman" is, by virtue of the permanency of his position,
as a matter of law a member of a regular police force (see O'Brien v. In-
spector of Buildings, 261 Mass. 351), whereas the reserve officer is not yet
a member of the regular police force and cannot become so until appointed
thereto in accordance with the provisions of said G. L. (Ter. Ed.) c. 31,
§ 20A, as amended.
2. G. L. (Ter. Ed.) c. 31, § 20A, as most recently amended by St. 1941,
c. 39, reads: —
"In each city and town subject to section twenty in which there has
been established a reserve police force, appointments to the regular force
shall be made by the appointing authority upon certification by the
director from the list of members of the reserve police force in accordance
with the rules of the commission, except that the basis of certification
shall be the order of appointment to the reserve force, or, if not ascer-
P.D. 12. 91
tainable, the order of the respective ratings of such members obtained in
the examination upon which the Ust of ehgibles for appointment to such
reserve force was based. No person who has passed his fiftieth birthday
shall be appointed from such a reserve force to such a regular force."
Since the position of a "permanent intermittent patrolman" and that
of a reserve police officer are not the same nor is the "status" of their
occupants the same, the language used by the Legislature in said G. L.
(Ter. Ed.) c. 39, § 20A, as amended by St. 1941, c. 39, providing that —
"No person who has passed his fiftieth birthday shall be appointed from
such a reserve force to such a regular force" —
cannot be interpreted as applying to appointments of "permanent in-
termittent patrolmen" as "permanent patrolmen" in a regular police
force.
Very truly yours,
Robert T. Bushnell, Attorney General.
Division of Marine Fisheries — Authority — Importation of Shellfish.
June 24, 1941.
Hon. Raymond T. Kenney, Commissioner of Conservation.
Dear Sir: — You have written me that one of the leading shellfish
dealers of the State has applied to the Division of Marine Fisheries for a
permit to bring clams into Massachusetts from contaminated areas in
Maine. You ask my opinion whether, notwithstanding the provisions of
G. L. (Ter. Ed.) c. 130, § 74, as amended, the Director of the Division of
Marine Fisheries "may legally arrange for the irnportation and chlorina-
tion of shellfish from without the State in the same manner as he regu-
lates the digging from contaminated areas and chlorination of shellfish
within the State."
My answer is that the Director is not empowered by law to do so.
The Legislature has dealt at some length with the subject of the dig-
ging, importation and exportation of shellfish from contaminated areas,
to the end that the public health may be safeguarded from the delete-
rious effects which, as a matter of common knowledge, follow from laxity
in the matters covered.
The powers of the Director of the Division of Marine Fisheries in re-
gard to the taking of shellfish from contaminated areas are set out in
G. L. (Ter. Ed.) c. 130, § 71, as amended, which provides, in substance,
that he may grant and revoke permits for taking shellfish from such areas
within the Commonwealth. Section 72 makes the taking of shellfish for
any purpose from such area without a permit as aforesaid an offense pun-
ishable by fine or imprisonment. Section 73, in substance, authorizes the
director to issue certificates to persons digging shellfish within the Com-
monwealth, stating that the area whence they are taken and the shell-
fish are free from contamination. This section further authorizes him to
issue dealers' certificates to persons distributing shellfish commercially
within the Commonwealth, and, in addition, certificates relative to the
condition of the establishment and equipment of persons digging or pack-
ing shellfish to be shipped out of the Commonwealth. He "shall promul-
gate rules and regulations relative to the form, contents and use of all
certificates issued by him under this section, in such manner as will most
effectively safeguard the public health. ..."
92 P.D. 12.
Finally, section 74 of the statute is as follows, irrelevant portions being
omitted: —
"No person shall transport, or cause to be transported, into this com-
monwealth for consumption as food any shellfish taken or dug from
grounds outside the commonwealth, or sell, . . . for consumption as
aforesaid any shellfish so taken or dug, unless there is on file in the de-
partment of public health a certificate approved by said department, in
which the state board ... of the state, . . . where such grounds are
situated states that such grounds are free from contamination, and also
a certificate, approved as aforesaid, in which such state board . . . states
that the estabUshment and equipment of the person shipping said shell-
fish into the commonwealth are in good, sanitary condition, nor unless
the container of such shellfish shall at all times, while in such transpor-
tation, bear a label or tag legibly marked with the name and address of
the producer and of the shipper thereof and the numbers of such certifi-
cates, and the name of the place where and the date when taken, and
absence of such label . . . shall be prima facie evidence of violation of
this section; ... A list of certificates shall be filed with the supervisor.
Whoever violates any provision of this section shall be punished by a fine
of not less than twenty nor more than fifty dollars, or by imprisonment
for not more than thirty days, or both. The provisions of this section
shall be enforced by the department of public health, local boards of
health and all officers qualified to serve criminal process."
Section 74 is explicit, unambiguous and comprehensive. No power is
given the Director of the Division of Marine Fisheries, expressly or
by implication, to permit the importation of shellfish from contaminated
areas without the Commonwealth. The Legislature made no provision for
the importation of shellfish from such areas, and in view of the evil sought
to be remedied, this omission must be deemed intentional. Plainly, it
cannot be supplied by those charged with administering the law. Thacher
V. Secretary of the Commonwealth, 250 Mass. 188, at 191; King v. Viscoloid
Co., 219 Mass. 420, 425.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — Contracts of Employment — Re-employment of Persons
in Military Service.
June 24, 1941.
Hon. Newland H. Holmes, Chairman, Senate Committee on Bills in the
Third Reading.
Dear Sir: — You have asked my opinion as to the constitutionality,
if enacted into law, of House Bill No. 2524, which reads as follows: —
*'An Act relative to the Re-employment in Their Former Positions
OF Persons who leave the Same upon being called for Military
OR Naval Service during the Present National Emergency
and are rejected for Such Service.
Be it enacted by the Senate and House of Representatives in General Court
assembled, and by the authority of the same, as follows:
Any person who leaves a position in the service of any employer upon
being called for service in the military or naval forces of the United States
P.D. 12. 93
under the provisions of the Federal Selective Service and Training Act of
1940 and is rejected for such service, shall, if mentally and physically-
capable, be re-employed in the position held by him at the time of receiv-
ing said call for said military or naval service. Whoever wilfully neglects
or fails to comply with this section shall be punished by a fine of not less
than one thousand dollars or by imprisonment for not more than one year,
or both."
The general right of employers to make or refrain from making contracts
in respect to employment is part of the liberty of the citizen protected by
the Fourteenth Amendment to the Federal Constitution, and l;»y several
clauses of the Constitution of this Commonwealth containing guaranties
similar in effect {Opinion of the Justices, 220 Mass. 627-631), yet this right
is subject to reasonable limitations by the Legislature which are reqviired
by the common good or the general public welfare.
The defense of the United States, especially in a period of national
emergency, is of paramount importance to the public welfare, and it is
within the authority of the General Court to enact measures reasonably
conducive to that end under what is broadly termed the police power. In
my judgment the provisions of the instant measure would tend to aid in the
defense of the United States. If this is so, the judgment of the Legislature
in enacting such provisions as a means toward the accomplishment of the
defense of the United States cannot be pronounced unreasonable or arbi-
trary. The proposed bill deals with conditions which in many instances
might impose unnecessary hardships upon employees who have been
compelled to sever their employment at the call of the national govern-
ment to take part in the defense of the country, and who, through no fault
of their own, are thereafter rejected by the military authorities and find
themselves unemployed. The elimination of fear of unemployment under
such conditions, in my opinion, tends to sustain the morale of all who may
be subject to such a call — and so to a considerable extent aids in the total
process of national defense.
It has been held by the Supreme Court of the United States that an Act
of Congress, which requires the re-employment of one separated from em-
ployment by a discharge properly forbidden under a statute validly regu-
lating conditions of employment, does not of itself render such an act
unconstitutional under the provisions of the Constitution of the United
States. Labor Board v. Jones & Laughlin, 301 U. S. 1, 48.
A provision similar in kind, with relation to re-employment in private
as well as in public service, in favor of any person inducted into the United
States land or naval services who has received a certificate showing that
he has completed his period of training and service, appears in United
States Selective Training and Service Act of 1940 (76th Congress, c. 720,
3d Session [129 A. L. R. 1210] § 8, cl. (b)).
The provisions of an Act of March 8, 1918, granting various privileges
to soldiers by way of a moratorium interfering with ordinary rights of
those having contracts with them, have been upheld as within the powers
of Congress as war measures. Hoffman v. Charlestown, etc., Bank, 231
Mass. 324, 330; Morse v. Stoher, 233 Mass. 223; John Hancock Mutual
Life Ins. Co. v. Lester, 234 Mass. 559; Pierrard v. Hoch, 97 Ore. 79.
The powers of the Legislature of the Commonwealth to promote public
defense in a national emergency would appear to be embraced in its well
recognized authority to provide for the general public welfare. The selec-
tion of veterans to receive special privileges in the public service has long
94 P.D. 12.
been held to be a proper mode of classification within the power of the
Legislature in its protection of the general public welfare. Mayor of Lynn v.
Commissioner of Civil Service, 269 Mass. 410; Opinion of the Justices, 166
Mass. 589; Ransom v. Boston, 192 Mass. 299.
The classification made by the proposed bill would appear to be within
the general principles heretofore enunciated by our courts with relation
to those who have entered the United States service.
I am of the opinion, therefore, that the provisions of House Bill No. 2524
do not exceed the authority of the General Court and that, if enacted into
law, the measure would be constitutional.
As the proposed bill is a penal measure, I suggest that a clause be inserted
so that the employer will receive reasonable notice of the former em-
ployee's desire to be reinstated before criminal liability arises. The
United States Selective Training Act of 1940 (76th Congress, c. 720, 3d
Session, § 8, cl. (b), subclause (B)) makes the duty to reinstate dependent,
among other things, upon an application for re-employment given by
the former employee within forty days from his relief from training and
service.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Rules — Regularly Recurrent Temporary Employment.
July 1, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You have asked my opinion as to whether Civil Service
Rule 24, section 2, conflicts with the provisions of G. L. (Ter. Ed.) c. 31,
§15.
In my opinion said Rule 24, section 2, correctly interpreted and applied,
does not conflict with the provisions of G. L. (Ter. Ed.) c. 31, § 15.
Rule 24, section 2, reads : —
"A person certified for temporary employment to boards of assessors,
or other departments in which temporary employment is regularly recur-
rent at stated periods, may within one year from the cessation of such
employment or within the next calendar year be again employed in such
position. And if upon such recurrent service a person shall have been
employed a total period of twelve months his employment may be made
permanent."
G. L, (Ter. Ed.) c. 31, § 15, provides in its applicable portion: —
"No person shall be appointed or promoted to any position in the
classified civil service except upon requisition by the appointing officer
and upon certification by the director from an eligible list prepared in
accordance with this chapter and the rules and regulations made there-
under. . . .
... no person shall receive an original appointment to the classified
official service of the commonwealth or any city or town thereof subject
to the provisions of this chapter otherwise than by virtue of a competitive
examination. ..."
Certain exceptions to these provisions are made in section 15 which
are not material to the question under consideration.
P.D. 12. 95
No other mode of making appointments to temporary positions is set
forth in the statute itself.
The possibility of the existence of temporary positions is recognized in
sections 15 and ISA of the statute, by reference thereto.
The provision in section 15 as to original appointment^' by virtue of a
competitive examination" is carried into effect in the generality of cases
by Rule 16 of the Civil Service Rules and Regulations, which requires
that certification "shall be made in the order of the standing on the
eligible list."
Rule 24, section 2, however, provides another method by which a
permanent position may be obtained, when the temporary employment
is of the so-called ''regularly recurrent" type.
If Rule 24, section 2, be interpreted so as to permit the certification for
such temporary employment of any person upon an eligible list, without
regard to such person's standing upon such list, it would be void as being
in effect in opposition to that provision of said section 15 which requires
that no person shall receive an original appointment "otherwise than by
virtue of a competitive examination."
An interpretation and application of this rule — whereby certification
for temporary employment of the "regularly recurrent" type is to be
given to the three persons standing highest on the eligible list, who are
willing, respectively, to accept such temporary employment, render it in
conformance with the statutory provisions. The person appointed from
the three thus certified from an eligible list can fairly be said to have been
appointed by "virtue of a competitive examination." Rule 24, section 2,
so interpreted and applied, provides an alternative method to that set
up in said Rule 16, by which a person may gain a permanent position in
strict conformity with those provisions of section 15 of the statute which
require appointment from "an eligible list prepared in accordance with
this chapter and the rules and regulations made thereunder" and forbid
an original appointment "otherwise than by virtue of a competitive
examination."
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — W. P. A . Workers — Municipal and Federal Employ-
ments^.
July 1, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — In a recent letter you have asked my opinion as to whether
positions now occupied by "persons who are styled 'W. P. A.' workers,
many of whom appear on the regular city payroll, paid from the funds of
the city, and appear to perform functions which should be performed by
persons appointed in accordance with Civil Service Law and Rules . . .
should be filled after certification from the Civil Service lists, in such cities
and towns where the service is classified under Civil Service."
With relation to each position which comes before you for consideration
you should determine whether or not, upon all the applicable facts, it is a
position existing under a Federal Emergency Unemployment Relief Proj-
ect and whether the money to pay the occupant of the position be taken
from a reserve fund described in St. 1935, c. 90, or from an appropriation
made directly under G. L. (Ter. Ed.) c. 40, § 5 (39), or other similar pro-
visions.
96 P.D. 12.
If it is such a position it is not one of those which is required to be classi-
fied under Civil Service.
This principle has been stated in three opinions of one of my predecessors
in office to the Division of Civil Service, dated, respectively, April 13,
1935, July 31, 1939, and August 16, 1939, with which I concur.
The various acts — St. 1935, c. 90, St. 1937, c. 4, and St. 1939, cc. 46,
72, — which have dealt with employment by cities and towns in positions
upon Federal Emergency Unemployment Relief Projects, commonly called
W. P. A. Projects, constitute a legislative plan which deals with the un-
employment emergency as being of a temporary nature, disclosing an
intent to exclude said positions from the sweep of the Civil Service Law.
Very truly yours,
Robert T. Bushnell, Attorney General.
Legislative Member — Interest in State Contract.
July 2, 1941.
Hon. Walter S. Morgan, Comptroller.
Dear Sir : — In a recent communication you have informed me that
a written contract was made by the Department of Mental Health with a
certain corporation by which the latter was to render engineering services
in connection with work to be performed at the Boston State Hospital,
and that the corporation has performed the services required of it and has
now made a demand for payment under the terms of the contract. You
also advise me that, at the time when such contract was made, a member
of the Legislature was the president of the contracting corporation.
You ask my opinion as to whether or not under the stated circumstances
you can properly approve payment to the corporation upon this contract.
I am of the opinion that as a matter of law such contract was illegally
made and is invalid, and that payment under it may not properly be ap-
proved by you.
G. L. (Ter. Ed.) c. 268, § 10, provides in its applicable portions: —
"A member of the general court, or of the executive council, or of a state
department or commission, who is personally interested, directly or indi-
rectly, in a contract made by the general court or by either branch thereof
or by such department or commission or by its authority, in which the
commonwealth is an interested party; . . . shall be punished by a fine of
not less than fifty nor more than one thousand dollars or by such fine and
imprisonment for not more than one year."
,, This statute by its terms indicates a legislative intent to render invalid
by implication any contract made in violation of its provisions.
As a general rule of law an agreement made in violation of a statute is
invalid although not expressly declared to be void, unless it is apparent
that the legislative intent was otherwise. White v. Franklin Bank, 22
Pick. 181, 184. Coughlin v. Roijal Indemnity Co., 244 Mass. 317, 319.
Cijicinnati Mutual Health Co. v. Rosenthal, 55 111. 85. Tatar v. Valden
(Conn.), 117 A. L. R. 1243, 1248.
The provisions of this statute make it unlawful, not only for a member
of the General Court to be personally interested in a contract made by the
General Court itself or by either of its branches, but also for such a mem-
ber to be interested in a contract made by a department or commission
of the Commonwealth.
P.D. 12. 97
An examination of the phraseology of St. 1875, c. 232, wherein similar
provisions with relation to members of the General Court were first enacted
and whose substance has been carried forward through the Public Statutes
and Revised Laws into the present enactment, shows that th- intent of
the Legislature in employing the words ''Inj its authority" in said section
10 was to include all contracts made under authority flowing from the
General Court within the scope of the section.
So it was said in an opinion of the late Attorney General Hosea M
Knowlton, 1 Op. Atty. Gen. 502, based upon Pub. Sts., c. 205, § 12, the
phraseology of which was precisely like St. 1875, c. 232, and similar to
G. L. (Ter. Ed.) c. 268, § 10: —
_ ''The section substantially provides that if a member of the Legislature
IS personally interested in a contract in which the State is a party interested,
which is made by a State commission or by authority derived therefrom,
he is liable to punishment by fine or imprisonment.
rJr\}^ well settled that no recovery can be had upon an illegal contract.
(.Mtiler V. Post, 1 Allen, 434; Goddard v. Rawson, 130 Mass. 97.)"
That opinion then laid down the principle, with which I concur, that a
department of the Commonwealth for which work is done under such a
contract '^ may retain the results of the work done under the contract"
and the Conimon wealth "may defend against any suit brought therefor
in whatever form by the contractor." See Gaw v. Ashley, 195 Mass 173
i he contract now under consideration was not made by the Department
ot Mental Health with a member of the Legislature individually but with
a corporation of which a member was president. However, the prohibi-
tion of the statute extends by its terms to contracts in which a legislator
is indirectly interested as well as to those in which his interest is direct
1 am of the opinion that as a matter of law a member of the Legislature
wiio is president of a corporation which makes a contract falling within
the scope of said section, is, by reason of the fact of his holding the oflfice
ot president, at least "indirectly" interested in such contract. That being
so, the terms of the statute, which is a penal one, render such a contract
oio^^ r^ „ consequently unenforceable. Grand Isle Co. v. West, 28 Neb
^^'Hollswell V. Moran, 109 Cal. App. 316; Douglas v. Pittman, 239
^7-11 ' ^^^^'^^'^'^ Plumbing & Supply Co. v. Wheeler, 68 Cal. App. 592-
Miller v. City of Martinez, 82 Pac. Rep.. 579; Strawbridge v. City of Chilo-
qum, 130 Or. 44; In re Opinion of the Justices, 108 Maine, 545; Mont-
L TVl917c''%9£-n' ^^ ^' ^' ^' ^^^' ^^^' ^"""^ '^'''' collected in
Very truly yours,
Robert T. Bushnell, Attorney General.
Minimum Fair Wage Law for Women and Minors ~ Hospital Employees.
July 3, 1941.
Hon. James T. Moriarty, Commissioner of Labor and Industries.
Dear Sir :— You have requested my opinion on the two following
"1. Are the employees of a hospital which is established and conducted
on a non-profit basis included in the description of 'occupation' contained
in section 2 of chapter 151 of the General Laws, and therefore entitled to
the benefits of a decree established under the provisions of said chapter '^
98 P.D. 12.
"2. Are the employees of a hospital which is established and conducted
for profit included in the same description of 'occupation' referred to in
question No, 1?"
In my opinion, the mere fact that a woman or minor is employed by a
hospital, operating on either a profit or a non-profit basis, does not de-
prive such an employee of the protection and benefits of G. L. (Ter. Ed.)
c. 151, as amended, known as the Minimum Fair Wage for Women and
Minors Law.
The word "occupation" as used therein is defined by section 2 as fol-
lows : —
"An industry, trade or business or branch thereof or class of work
therein in which women or minors are gainfully employed, but shall not
include domestic service in the home of the employer or labor on a farm."
By virtue of the above definition of the term "occupation," the Mini-
mum Fair Wage for Women and Minors Law is made applicable to all
women and minors "gainfully employed" in "an industry, trade or busi-
ness or branch thereof or class of work therein," with the exception of
"domestic service in the home of the employer or labor on a farm." By
a familiar rule of statutory construction, such an express exclusion may be
taken as an indication of an intent on the part of the Legislature to in-
clude women and minors "gainfully employed" in any other "industry,
trade or business." Simmons v. County of Suffolk, 230 Mass. 236, 237;
Universal Machine Co. v. Alcoholic Beverages Control Commission, 301
Mass. 40, 45.
The questions on which you have asked my opinion implicitly raise the
issue as to whether or not the application of the act depends upon the
economic activity of the employee or of the employer. The various pro-
visions of the act repeatedly refer to "any employer." The statute con-
tains no definition of the term "employer." Consequently, it must be de-
termined whether the act, considered as a whole, discloses any legislative
intent to limit its application only to employees of certain types of em-
ployers.
It is a general and fundamental rule of statutory construction that the
intent of the Legislature disclosed by the act, construed as a whole, should
be given effect, even where the words of a particular section are unam-
biguous. Holbrook v. Holbrook, 1 Pick. 248; Morrison v. Selectmen of
Weymouth, 279 Mass. 486, 492; Sivift v. Registrars of Voters of Quincy,
281 Mass. 271, 276; Zwapp v. Amero, 298 Mass. 517, 522.
An intent to protect women and minors from "oppressive and unreason-
able wages" and to set and maintain minimum fair wage rates for their
benefit wherever necessary is disclosed by the various provisions of G. L.
c. 151, as amended. The act is obviously designed to maintain wages for
women and minors which meet both the standard of fairness and reason-
ableness and the standard of a living wage. The act contains no provision
indicating that the Legislature intended to make the availability of its
benefits dependent upon the character or status of the employer. On the
contrary, the legislative intent seems clearly to have been to assure women
and minors a fair wage, regardless of who the employer might be.
The words "gainfully employed," appearing in the definition of the
term "occupation" contained in section 2, obviously connote gain to the
employee and not to the employer. A contrary interpretation, injecting
an element of gain or profit to the employer as a test for the application
P.D. 12. 99
of the act, would involve considerations entirely foreign to other provisions
in the act, and would ignore the general and primary object of the statute.
The employees of a hospital of any size generally include persons engaged
in many and various types of occupations, such as nurses, maids, engineers,
janitors, dietitians, cooks, launderers, gardeners, etc. Hence, the mere
fact of employment by a hospital does not necessarily suggest a particular
occupation to which the act was not intended to apply. Whether or not
certain employees of a hospital are subject to the Minimum Fair Wage for
Women and Minors Law would depend upon whether or not they are
engaged in " an industry, trade or business . . . or class of work therein."
In this connection it may be noted that the above terms, defining the
word "occupation" as used in the act, are very broad in scope. For
example, "business" is a "word of large signification and denotes the
employment or occupation in which a person is engaged to procure a
living." Goddard v. Chaffee, 2 Allen, 395. See also Collector of Taxes of
Boston V. New England Trust Co., 221 Mass. 384, 388, and Hanson v.
Culton, 269 Mass. 471, 476.
Accordingly, I conclude that women and minors employed by a hospital,
established and conducted on either a non-profit or a profit basis, are not
excluded from the operation of the provisions of G. L. c. 151, as amended,
merely by reason of the character of their employer, and that whether or
not the act applies to a particular employee or group of employees of a
hospital depends upon the nature of such employment.
Very truly yours,
Robert T. Bushnell, Attorney General.
Outdoor Advertising — Metropolitan District Commission — Authority to
Restrict Billboards.
July 3, 1941.
Metropolitan District Commission.
Gentlemen : — You have written to ask my opinion "as to the authority
of this Commission to restrict billboards either now existing or to be
erected adjacent to roads, highways, and parkways under the control
of this Commission." You add that the Commission believes that its
parkways and reservations on either side of its roadways should have this
protection from the ever-increasing demands for the erection of billboards,
which erection you believe "defeats the purpose of beautification of the
roadsides, for which purpose these roadsides were put under the control of
this Commission."
In my opinion the Metropolitan District Commission does not possess
the authority in question, but the scenic beauty of the parkways and res-
ervations under its control may be amply protected by the exercise of
the power to regulate and restrict billboards, which, by force of G. L.
(Ter. Ed.) c. 93, §§ 29-33, is entrusted to the Department of Public Works,
and, to a limited extent, to cities and towns.
Chapter 28 of the General Laws, from which your Commission derives
its existence, confers no such power on it. G. L. (Ter. Ed.) c. 92, § 33,
creates the Metropolitan Parks District, and authorizes the Metropolitan
District Commission to acquire, maintain, preserve and care for "reserva-
tions" therein, which are defined as "open spaces for exercise and recrea-
tion." Section 35 of that chapter provides that the Commission may
100 P.D. 12.
connect any way, park or other public open space with any part of the
towns of the district under its jurisdiction by suitable roadways or boule-
vards. Boulevards established under this statute are often called parkways.
See I Op. Atty. Gen. 588. Section 37 provides that, with exceptions not
here material, the Commission "may make rules and regulations for the
government and use of the reservations or boulevards under its care. . . ."
In 1905 the Supreme Judicial Court had occasion to consider a rule of
the Metropolitan Park Commission forbidding the maintenance of busi-
ness signs so near a parkway as to be plainly visible to the naked eye of
persons on the parkway. This rule was promulgated under St. 1903, c. 158,
§ 1, which authorized the Metropolitan Park Commissioners "to make
such reasonable rules and regulations respecting the display of signs,
posters or advertisements in or near to and visible from public parks and
parkways entrusted to their care, as they may deem necessary for pre-
serving the objects for which such parks and parkways are established and
maintained." The court held that the rule was unreasonable and was,
moreover, unconstitutional as a taking of property for public use without
compensation. Commonwealth v. Boston Advertising Co., 188 Mass. 348.
For the purpose of overcoming the effect of this decision (see ff'eneral
Outdoor Adv. Co. v. Department of Public Works, 289 Mass. 149, 159) the
Constitution of the Commonwealth was amended in November, 1918, by
the adoption of Article 50, which reads as follows : —
"Advertising on public ways, in public places and on private property
within public view may be regulated and restricted by law."
Pursuant to Article 50, the Legislature enacted St. 1920, c. 545, now
G. L. (Ter. Ed.) c. 93, §§ 29-33, inclusive, of which section 29 authorizes
the Department of Public Works to make "rules and regulations 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. " Section 29 concludes ; " Cities
and towns may further regulate and restrict said billboards or other de-
vices within their respective limits by ordinance or by-law not inconsist-
ent with sections twenty-nine to thirty-three, inclusive, or with said rules
and regulations." Section 30 forbids the erection or maintenance of any
such sign unless it conforms to the "rules and regulations and ordinances
or by-laws established under the preceding section."
It is significant that St. 1903, c. 158, § 1, by authority of which the
regulation considered in Commontrealth v. Boston Advertising Co., supra,
was made, which gave the Metropolitan Park Commission authority to
make rules regarding signs, was not included in the General Laws of 1921.
The provisions of G. L. (Ter. Ed.) c. 93, §§ 29-33, are described in
Inspector of Buildings v. General Outdoor Advertising Co., 264 Mass. 85,
at 89, as "a well coordinated and complete system for the establishment
and regulation of billboards" located on public ways, and the court re-
marks that the Legislature thereby conferred upon the Department of
Public Works authority over the erection and maintenance of billboards,
"with the subordinate right of cities and towns by ordinance or by-law to
make further regulations or orders not inconsistent or at variance with"
regulations promulgated by the department.
Plainly the authority given by the Legislature to the Department of
Public Works to regulate billboards is exclusive, unless a similar authority
is conferred on the Metropolitan District Commission by the provision
of G. L. (Ter. Ed.) c. 92, § 35, which reads:
P.D.12. ^^^
"The commission shall have ... in regard to said boulevards
^ich rights and powers . . . as, in general, counties, cities and towns
have over public ways under their control."
It is my opinion that the provision just quoted did not confer on the
Metropolitan District Commission the subordinate power of cities and
towns to further regulate and restrict . . . billboards . within their
respective limits" which they derive from G. L. (Ter. Ed ) c 93 S 29
The rights and powers of the Commission under G L (Ter Ed ) c 92
^ 35 are in regard to "boulevards" only. No similar powers as to "'res-
ervations are given by G. L. (Ter. Ed.) c. 92, § 33. Boulevards are pub-
lic highways, but roads within reservations are not. Burke v MetrovoU-
tan Lhstrid Con\mission, 262 Mass. 70, 72, 73. There is ample reason to
give the Commission such powers over boulevards as "in general" cities
t! . 7^^ ^^"^^ ^^'''" ^^^^^ P^'^^^c ways (see Medford v. Metronolitan
Ihstnct Conum^^^^^^^^ Mass. 537), but no reason' suggests itself why
the Legislature should give the Commission a subordinate power to regu-
late billboards on or near its boulevards, but not on or near its reserva-
tions, especially when the regulatory power of the Department of Public
Works in ^this respect extends to billboards on public ways or private
property withm public view of any highway, public park or reservation "
• /^^se considerations impel me to the conclusion that the Legislature
intended to entrust to the Department of Public Works, with limited
supplementary authority in cities and towns, the power to protect the
scenic beauty of all highways, parks and reservations by regulating ad-
jacent billboards and advertising devices, and did not intend that the
Metropolitan District Commission should exercise such authority.
Very truly yours,
Robert T. Bushnell, Attorney General.
Retirement Law — Teacher — Veteran.
July 9, 194 L
Hon. Walter Downey, Chairman, Teachers' Retirement Board.
in ?hl''!!-f '""'fT^^'' f ''■T''^ communication you state the case of a teacher
m the city of Cambridge who was retired as a veteran, under the provi-
sions of G K (Ter. Ed ) c. 32, § 57, by the Acting Ma^or of Cambridge
effective at the close of business on June 20, 194L You state that the
veteran was born on October 8, 1870, and thkt he has be' n a mem^^^^^^
the teachers Retirement Association since March, 1923. Members of
the teachers Retirement Association are required to retire at the end of
the school year m which they attain the age of seventy. In this case the
retirement would be required not later than July 1 1941
20 1 Q41 ^T^""''.' retirement as a veteran at the close of business on June
20, 1941 IS valid, he will be entitled to a veteran's pension of $1 450 a
frii; ' ^^f. retirement as a veteran is not valid, he will be entitled to a
teacher s retirement allowance of $760.56 a year.
You have requested my opinion on two questions: —
!'o^^\f^!^^^^^^ ^^^ retirement as a veteran is valid; and
to « Unni' 7Vr"''^''^ ""'/. ^t^'^'' f '^^^^^' ^^et^er or not he is entitled
to a retund of the amount to his credit in the Teachers' Retirement Fund
102 P.D. 12.
or to a retirement allowance under the Teachers' Retirement Law, in addi-
tion to his pension as a veteran."
(1) In my opinion, the teacher's retirement as a veteran is valid. I
am assuming, in the absence of any facts stated to the contrary, that all
necessary conditions precedent to the retirement of the teacher as a vet-
eran on June 20, 1941, were in existence, and that the only reason for
questioning the validity of that retirement is the fact that it was made
by the Acting Mayor of Cambridge rather than by the Mayor. In my
judgment, such a retirement by the Acting Mayor is valid.
The retiring authority in this type of retirement is ordinarily the mayor.
G. L. (Ter. Ed.) c. 32, §§ 57, 59. The city of Cambridge operates under
a Plan B Charter (G. L. [Ter. Ed.] c. 43, §§ 56-63, as .amended), and is
subject to G. L. (Ter. Ed.) c. 43, § 26, as amended, which provides that —
" . . . If the mayor is absent or unable from any cause temporarily to
perform his duties they shall be performed by the president of the city
council. The person upon whom such duties shall devolve shall be called
'acting mayor,' and he shall possess the powers of mayor only in matters
not admitting of delay. ..."
The teacher having reached the age of seventy during the school year
1940-1941, it was the mandatory duty of the Teachers' Retirement Board
to retire him on July 1, 1941, the close of the school year. G. L. (Ter.
Ed.) c. 32, § 10 (2). If the teacher was to receive the benefits of the pro-
visions of the veterans' retirement law, his retirement thereunder was
required to be accomplished before July 1, at which time he would have
been removed from the service by the Teachers' Retirement Board. This
being so, his retirement by the retiring authority, under G. L. (Ter. Ed.)
c. 32, § 59, was, in my opinion, a matter "not admitting of delay," as
the quoted words are used in G. L. (Ter. Ed.) c. 43, § 26, as amended,
and hence might properly be performed by the Acting Mayor. See Dimock
V. Barry, 211 Mass. 165, 167.
(2) The veteran, having been retired under the provisions of G. L.
(Ter. Ed.) c. 32, § 57, is entitled to receive the pension due him as a vet-
eran under said section 57, and
(a) He is not entitled to a retirement allowance from the Teachers'
Retirement Fund in addition to his veteran's pension. G. L. (Ter. Ed.)
c. 32, § 37E (3), provides specifically that a person who is retired shall
receive only such benefits as are allowed or granted by the particular pro-
visions of the law under which he is retired. In the present instance, the
law under which he is retired is embodied in said section 57 of chapter 32.
(6) Under the law as it now stands, he is not entitled to a refund of the
amount of his contributions to the Teachers' Retirement Fund. The
Legislature, by G. L. (Ter. Ed.) c. 32, § 11 (1), has limited the right to
a return of contributions to members withdrawing ^^ before becoming eli-
gible to retirement:' See VII Op. Atty. Gen. 219, 222, 224; V. Op. Atty.
Gen. 192.
The pensioner herein became eligible to retirement from the Teachers'
Retirement Association in 1931, at the age of sixty, under the provisions
of G. L. (Ter. Ed.) c. 32, § 10 (1). In other words, ten years have passed
since the pensioner became "eligible to retirement," and he can hardly
be said, therefore, to come within the terms prescribed by the Legislature
for a return of contributions to a member withdrawing ''before becoming
eligible to retirement." The Legislature having strictly limited the right
P.D. 12. 103
to a return of contributions to cases other than that described herein,
specific legislation would have to be enacted to permit a return of the con-
tributions made by the pensioner in the present instance.
Very truly yours,
Robert T. Bushnell, Attorney General.
Metropolitan District Commission — Sewers — Expenditures — Federal
Grants.
July 11, 1941.
Metropolitan District Commission.
Dear Sirs : — In a recent communication you informed me that your
Commission had not expended the entire amount authorized by chapter
459 of the Acts of 1938 for the construction of certain additional sewers.
You also informed me that the Federal Government has already contributed
to the Commonwealth for the purpose of this act more than forty-one per
cent of the total amount so authorized.
Your communication also stated that the Director and Chief Engineer
of the Sewerage Division reported that there are a few minor contracts
still to be let, record plans to be copied and data to be compiled in connec-
tion with the said project.
You have asked my opinion as to whether or not you have authority to
make further expenditures within the limits of the statutory authorization
for the above purposes in the absence of any assurance that the Federal
Government will make further grants on account of such expenditures.
If the work proposed by the Director and Chief Engineer of the Sewerage
Division is incidental to and for the purpose of the project authorized by
St. 1938, c. 459, and, if my information as to past expenditures as above
set forth is correct, the cost of the proposed work may, in my opinion, be
paid from the unexpended balance remaining from the total amount
authorized under the act.
Whether or not the expenditures proposed by the Director and Chief
Engineer of the Sewerage Division are incidental to and for the purpose of
carrying out the project authorized by said chapter 459 of the Acts of 1938
appears to be a question of fact that is not within my province to deter-
mine. It would seem that with their full information your engineers and
the Emergency Public Works Commission can fairly decide this factual
point.
Under section 1 of the above act —
"... the metropolitan district commission is authorized and directed
to construct a main sewer or sewers, with sewer connections, disposal or
treatment works, and other works, in the valleys of the Mystic river and
its tributaries, and through . . . [certain cities and towns] . . . and, for
such purposes, may exercise all the powers conferred upon it by chapter
ninety-two of the General Laws relative to the construction, maintenance
and operation of systems of sewerage disposal. For the purpose of carry-
ing out said project, including any expenditures on account of the purchase
or taking of land or damages to land occasioned by the construction here-
inbefore provided for, the said commission may expend sums not ex-
ceeding, in the aggregate, four million, two hundred and thirty thousand
dollars; provided, that not less than forty-one per cent of the sums so
authorized to be expended are made available from grants of federal
money."
104 P.D. 12.
Since the Federal grants hitherto received have amounted to over forty-
one per cent of the aggregate authorization contained in the statute, fur-
ther expenditures within the authorized Umits need no longer be con-
ditioned upon further grants by the Federal Government. However, such
further grants would continue to be subject to the supervisory powers of
the Emergency Public Works Commission as set forth in sections 2, 3 and
5 of said chapter 459 of the Acts of 1938.
While chapter 459 of the Acts of 1938 in section 4 specifically makes
applicable to the project there authorized the provisions of chapter 29
of the General Laws, I am of the opinion that your authority to incur
additional obligations is not affected by the fact that the most recent
legislative authorization became effective more than two years ago. (St.
1939, c. 285, effective June 15, 1939, increasing amount of authorized
expenditures.)
This lapse of time would be material only if the authorization contained
in chapter 459 of the Acts of 1938 and chapter 285 of the Acts of 1939 were
to be regarded as "appropriations," as that term is used in G. L. (Ter.
Ed.) c. 29, § 14, as amended by St. 1939, c. 502, § 11. This latter section
reads as follows : —
"An appropriation for any purpose other than ordinary maintenance,
for the first fiscal year of the biennium, shall not be available for more
than two years after the effective date of the appropriation act. A like
appropriation for the second fiscal year of the biennium shall not be avail-
able for more than two years after the beginning of such year. In either
case payments to fulfill contracts and other obligations entered into within
the said two years may be made thereafter."
In my opinion said section 14 of chapter 29 refers to an appropriation
of money already in the treasury, or money to be paid into the treasury
through taxation or the ordinary revenue, and does not apply to an act
which authorizes the expenditure of money to be raised by the issuance of
bonds. (Opinion of the Attorney General to William D. Hawley, Deputy
Chief Auditor, dated April 24, 1919.)
Since the latter method of financing is prescribed by section 2 of said
chapter 459 of the Acts of 1938 and chapter 285 of the Acts of 1939, ex-
penditures thereunder are not subject to G. L. (Ter. Ed.) c. 29, § 14, as
amended.
Very truly yours,
Robert T. Bushnell, Attorney General.
Building Law — Special Hall — Occasional Performances — Definitions.
July 15, 1941.
Hon, Eugene M. McSweeney, Commissioner of Public Safety.
Dear Sir : — You have asked my opinion as to whether a certain hall
falls within the definition of a "special hall" as set forth in G. L. (Ter.
Ed.) c. 143, § 1, in view of the manner in which it is used.
G. L. (Ter. Ed.) c. 143, § 1, defines "special hall" as follows: —
"'Special hall', a building or part thereof containing an assembly hall
with a seating capacity of more than four hundred which may be used for
occasional performances for the entertainment of spectators, with the use
of scenery under such conditions as the licensing officer shall direct, and
for public gatherings."
P.D. 12. 105
You have informed me that the Selectmen of Westboro have leased a
hall in the Town Hall building to be used by the lessee for the purpose of
giving theatrical performances for gain from June 21 to September 13,
1941. I am uiformed that the hall in question is an assembly hall, with a
seating capacity of more than four hundred, that scenery is used under
conditions directed by the licensing officer, and that for one week in the
middle of the term, as well as on two Mondays and on Sundays, no per-
formances are given. I am further informed that the hall was leased for a
similar purpose upon a like term in the summer of 1940.
I am of the opinion that upon the foregoing facts the hall is being used
for a different purpose than the giving of ^^ occasional 'performances'^ and
that as so used it does not come within the definition of "special hall" as
set forth in said chapter 143, section 1.
In making provision for the public safety, the Legislature, in said
chapter 143, has set forth various requirements intended to safeguard
audiences, which are applicable to theatres, but which are not made
applicable to ''special" halls. By defining a "special hall" as one "which
may be used for occasional -performances'' it was apparently the intent of
the Legislature not to permit regular or frequent performances in such a
hall which was not subject to the more stringent safety requirements
placed upon theatres.
A hall used for theatrical performances on week days over a period from
June 21 to September 13, even with the exception of one week and two
Mondays during that time, is not one which can be said to be used only
for "occasional performances," and so does not come within the said
definition of "special hall."
Very truly yours,
Robert T. Bushnell, Attorney General.
Retirement Law — Teacher — Veteran — Retiring Authority.
July 21, 1941.
Hon. Walter F. Downey, Teachers' Retirement Board.
Dear Sir: — In your original request for my opinion on certain ques-
tions of law bearing upon the retirement of a Cambridge school teacher
and war veteran you informed me that the man in question was retired
under G. L. (Ter. Ed.) c. 32, §§ 57, 59. ^ You enclosed a copy of the retire-
ment notice issued by the Acting Mayor of Cambridge under date of May
29th, the material portions of which read as follows: —
"You are hereby notified that I this date approved the application of
Michael J. Skinner, a teacher in the Cambridge School System, for retire-
ment on pension under the provisions of Chapter 32, Section 57 of the
General Laws of Massachusetts (Ter. Ed.), effective at the close of business
June 20, 1941."
In the opinion which I rendered to you on July 9, 1941, I advised you
that, upon the assumptions there stated, the veteran's retirement by the
Acting Mayor was to be regarded as valid.
You now ask my opinion as to the present status of the teacher, in view
of the attempted change in the effective date of his retirement.
In my opinion the rights of the respective parties were fixed by the order
and notice issued by the Acting Mayor of Cambridge under date of May
29, 1941, and the retirement of the teacher became effective at the close
106 P.D. 12.
of business on June 20, 1941. After having exercised his power as the
retiring authority, the Acting Mayor had no further power thereafter to
change the effective date of the retirement. Cf. Marbury v. Madison,
1 Cranch, 137, 162.
Consequently the status of the teacher should be determined in ac-
cordance with the opinion which I rendered on July 9, 1941.
Very truly yours,
Robert T. Bushnell, Attorney General.
Outdoor Advertising — Rules — Electrical Display Sign — Definition.
July 23, 1941.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You have submitted to me a copy of the Rules and Regula-
tions of the Department for the Control and Restriction of Billboards,
Signs and Other Advertising Devices, adopted on May 10, 1941, of which
section 4B is as follows : —
"No permits will be issued for outdoor advertising on any location
which is within three hundred (300) feet of any public park or reservation,
if within view of any portion of the same except that the Department may
grant permits for the location of electrical display signs on buildings in
any such location, under such restrictions as the Department may impose."
You ask whether, in my opinion, "the addition to a sign of one or two
incandescent lights for night illumination constitutes an electrical display
sign within the meaning of the above-cited section."
It is my opinion that a sign thus illuminated at night would not thereby
become an "electrical display sign" within the meaning of the regulation
quoted.
The phrase "electrical display sign" does not appear to have been
judicially interpreted, but it is clear from the ordinary and accepted mean-
ing of the words that it is a sign bearing an advertising display which is
produced or operated by electricity. It is common knowledge that signs
of this type ordinarily are erected on buildings, and that is the location
contemplated by the regulation.
The "display" upon the ordinary sign or billboard consists of words or
pictures, or both, of a size, coloring and arrangement calculated to attract
attention. The illumination of such a sign, so that it becomes visible after
dark, does not change the character of the display when the lighting is no
part of the display itself. If a contrary interpretation were adopted, such
a sign, located near a bright street lamp and clearly visible at night, could
be called an electrical display sign, which obviously it is not.
If the department had meant to designate all display advertising which
is illuminated at night it would have been a simple matter to have said so,
and I must assume that when it employed the phrase "electrical display
sign" it intended the words to bear their usual and accepted meaning.
Very truly yours,
Robert T. Bushnell, Attorney General.
I
P.D. 12. 107
Civil Service — Employee of the Metropolitan District Commission on P. W. A.
Project.
Aug. 15, 1941.
Hon. Eugene C. Hultman, Commissioner, Metropolitan District Com-
mission.
Dear Sir: — You have requested my opinion as to the status of a certain
engineer employed by your Commission, and as to the authority of the
Director of the Division of Personnel and Standardization to require you
to demote the said engineer to a lower rank formerly held by him. Per-
tinent facts, including those furnished by you and by the Director of
Civil Service, may be summarized as follows: —
On September 8, 1938, your Commission requested that the Division
of Personnel and Standardization approve the proposed promotion of a
permanent senior civil engineer in the Sewerage Division of your Com-
mission to the position of sanitary engineer in said Division. The request
stated that the appointment would be "permanent for duration of above
acts," referring to St. 1937, c. 433, and St. 1938, c. 459, which provided
for certain P. W. A. construction projects. The approval which was given
by the Division of Personnel and Standardization was similarly phrased
and the promotion, which included an increase in salary, was made in
September of 1938. Thereafter, the engineer was given a non-competitive
examination, which he passed, and on April 26, 1940, he was certified by
the Director of Civil Service for promotion to the permanent position of
''Grade \T, sanitary engineer," which promotion was thereupon entered
on the records of the Division of Civil Service. On May 3, 1940, the Divi-
sion of Personnel and Standardization again approved the engineer's em-
ployment as ''sanitary engineer" at the increased salary, "his employment
... to end on completion of the work authorized or upon termination of
funds" under St. 1937, c. 433, and St. 1938, c. 459.
You state that the projects provided for by those statutes have not
been completed and that there are still sufficient balances authorized by
those statutes and by an amendment thereof (St. 1939, c. 512) to com-
pensate the said engineer.
You also state the position taken by the Division of Personnel and
Standardization that the aforementioned engineer must be demoted to
his former status as senior engineer upon completion of the w^ork author-
ized by the aforementioned statutes or upon termination of funds therefor.
If, as you state, the projects authorized by St. 1937, c. 433, and St.
1938, c. 459, have not been completed and if funds authorized to be ex-
pended on said projects are still available for payment of the engineer's
salary, there would appear to be no present disagreement between your
Commission and the Division of Personnel and Standardization with re-
spect to the continuance of his employment as sanitary engineer.
However, I am of the opinion that in any event the engineer in ques-
tion may not lawfully be reduced in rank or salary by your Commission
except for cause and after hearing in the manner specified in G. L. (Ter.
Ed.) c. 31, § 43.
In enacting St. 1937, c. 433, and St. 1938, c. 459, authorizing the Met-
ropolitan District Commission to undertake and carry out certain con-
struction projects, the Legislature did not in any way manifest an intent
108 P.D. 12.
to exclude from the operation of the Civil Service Laws the persons to be
employed on those projects. If the Legislature had so intended, or if it
had intended to limit the tenure of such employees to the duration of
the work on the special projects, such an intent could easily have been
made apparent. See, for example, the statutes establishing the Metro-
politan District Water Supply Commission, authorizing it to appoint and
remove engineering and other assistants, and expressly providing that —
"Such appointments shall not be subject to classification under sec-
tions forty-five to fifty, inclusive, of chapter thirty of the General Laws,
and chapter thirty-one of the General Laws shall not apply to removals,
and, in accordance with such regulations as the commission may estab-
lish and as shall be approved by the governor and council, any appoint-
ment, including that of the chief engineer, mav be wholly exempt from
said chapter thirty-one." (St. 1926, c. 375, ^§ 2. See also St. 1927,
c. 321, § 3.)
The omission from St. 1937, c. 433, and from St. 1938, c. 459, of any
provisions comparable to those contained in the statutes applicable to the
Metropolitan District Water Supply Commission indicates a legislative
intent that the General Laws relating to public employment, including
the provisions of chapters 30 and 31, should apply to persons employed
by the Metropolitan District Commission in connection with the P. W. A.
projects there authorized.
In opinions rendered to your Commission on January 23, 1941, and to
the Director of Civil Service on June 6, 1941, I stated that persons em-
ployed on these projects, who have continued to be so employed for more
than six months, must be regarded as persons "holding ofRce or employ-
ment in the classified public service of the commonwealth."
As I stated in those opinions, the rights of such employees as holders
of permanent positions in the classified service are not diminished by the
fact that their appointments purported to be for the duration of certain
special projects. In the absence of specific legislative provision therefor
such conditions may not lawfully be imposed with respect to appoint-
ments which may well exceed the time limitations specifically prescribed
for provisional, temporary or emergency appointments. See G. L. (Ter.
Ed.) c. 31, § 15, as amended by St. 1939, c. 506, § 2; Civil Service Rules
21, 24; O'Brien v. Inspector of Buildings of Lowell, 261 Mass. 351, 354.
Nor is any authority conferred by law upon the Division of Personnel
and Standardization to qualify in any such manner its approval of pro-
posed promotions or appointments to newly classified positions. See
G. L. (Ter. Ed.) c. 30, §§ 45-50.
You stated in your letter that in St. 1941, c. 419, which contains the
appropriations of your Commission for the years 1941 and 1942, "the
position of sanitary engineer in the Sewerage Division, as provided in
previous budgets, is omitted." The omission of such an item does not of
itself have the effect of abolishing the position of sanitary engineer or of
automatically reducing the rank or compensation of the incumbent. See
Lowry v. Commissioner of Agriculture, 302 Mass. Ill, 120. However,
the insufficiency of funds with which to pay such compensation might
well be regarded as adequate cause for reducing the rank and compensa-
tion of the sanitary engineer in accordance with the procedure prescribed
by G. L. (Ter. Ed.) c. 31, § 43. Also, such a reduction in rank and com-
pensation might be effectuated pursuant to that procedure if, as has been
P.D. 12. 109
suggested, the services of a sanitary engineer are no longer required by
your Commission.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Employee of City of Boston — Parkman Fund.
Sept. 10, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You have informed me that the name of a certain em-
ployee "appears on the Boston Park Department pay rolls as permanent
statistician, with a salary of $1,500, and the notation that her salary is
paid out of the Parkman Fund." You have requested my opinion as to
whether the position of such employee is within the classified civil service
so that appointment thereto should be governed by the laws and rules
applicable to the civil service.
I am of the opinion that the position is within the classified civil service
and that it should be filled in accordance with the laws and rules applicable
to appointments so classified.
The city of Boston is specifically authorized by St. 1875, c. 185, § 6, as
amended, to act as trustee of any bequest that may be made for the purpose
of laying out, improving or ornamenting any parks in the city.
By virtue of such authority the city holds and administers as trustee
the fund bequeathed it by the will of the late Mr. Parkman, the income
of which, under the terms of the will, "is to be applied to the maintenance
and improvement of the Common and the parks now existing. ..."
The Park Commission of Boston, upon whose pay roll the name of the
employee appears, was established by said St. 1875, c. 185, and has charge
and direction of the city's parks and the Common. I am informed that,
in connection with the administration of the Parkman Fund, the Park
Commissioners confer with and recommend to the Mayor, and that the
City Treasurer, under the provisions of the Revised Ordinances (1925) of
the city of Boston, has charge of the management and disbursement of
the income of the fund.
Since the city is expressly empowered by the Legislature to act as trustee
of any bequest for park purposes, which purposes themselves are a govern-
mental function (Higginson v. Treasurer'-of Boston, 212 Mass. 583, 586-589),
it does not hold and administer the fund in a proprietary manner for -its
own interests and profit, but in its municipal capacity for the public good
as one of its governmental functions.
It follows that the position of an employee whose duties consist in aiding
the administration by a city of such a trust as that involved in the bequest
of the Parkman Fund is one "in the government" of the city, as the
quoted words are used in G. L. (Ter. Ed.) c. 31, § 3, and in Civil Service
Rule 4, to indicate such positions as come within the sweep of the Civil
Service Law and Rules. In this connection it is immaterial whether the
employee's compensation be paid from the city treasury or from the trust
fund.
Very truly yours,
Robert T. Bushnell, Attorney General.
no P.D. 12.
Publication of Notice — Neicspaper — Definition.
Sept. 13, 1941.
Hon. Carroll L. Meins, Chairman, Department of Public Utilities.
Dear Sir : — In a recent letter you requested my opinion as to whether
a certain pubhcation is a newspaper within the meaning of statutory
requirements caUing for pubhcation in a daily newspaper.
My attention has not been called to any particular statute requiring
publication in a daily newspaper concerning your department and its
activities. However, I assume that the provisions of G. L. (Ter. Ed.)
c. 159, § 51, are illustrative. The pertinent part of that section reads as
follows : —
"Such shares shall be offered for sale in Boston, or in such other town
as may be prescribed by the department; and notice of the time and
place of such sale shall be published at least five times during the ten days
immediately preceding the sale in each of at least three of such daily news-
papers as may be prescribed by the department."
While there appears to be no Massachusetts statute or decision of the
Massachusetts Supreme Judicial Court defining a daily newspaper, it is
my opinion that the publication in question is a daily newspaper in the
city of Boston within legal requirements such as the foregoing.
I am informed that the publication referred to is, and has been, pub-
lished daily, except on Sundays and holidays, for many years; that it is
circulated in Boston and throughout Massachusetts and thirty-two other
states, both through standing lists of subscribers and through general
circulation from newsstands, hotels and railroad stations; that, while it is
principally devoted to business and financial news, every issue contains
items of general news, political news, international events, major sports
events and other matters of general interest; that it carries advertising of
a varied nature; and that the Post Office Department has required it to
furnish a sworn statement of its circulation and ownership since 1912,
when Congress enacted legislation requiring that daily newspapers using
the mails should furnish such information.
While an exact and precise definition of the word "newspaper" appli-
cable to all statutory provisions cannot be stated, it has frequently been
held that a publication appearing at regular or almost regular intervals of
time, as daily or weekly, in sheet form, containing reports of happenings
or recent occurrences of a varied character, such as political, social, moral,
religious and other subjects of a similar nature intended for the information
of the general readers, is to be regarded as a newspaper. Pentzel v. Squire,
161 111. 346. Hull V. King, 38 Minn. 349. Lynch v. Durfee, 101 Mich. 171.
Crowell V. Parker, 22 R. I. 51.
The mere fact that a publication has a somewhat limited circulation
does not preclude it from classification as a newspaper, even though it
has no regular subscription list, if it is sold generally on the streets of the
city. Times Publishing Co. v. Star Publishing Co., 51 Wash. 667.
Although the publication may be devoted especially to some particular
subject, calling or profession or to the disseminjltion of information of a
special kind, it will not be deprived of its classification as a newspaper if
it also possesses the other general characteristics of that type of publica-
tion. If it gives the general current news of the day it may fall within
P.D. 12. Ill
the definition of a newspaper. In re Labor Journal, 190 Cal. 500. Burak
V. Ditson, 209 la. 926. Hanscom v. Meyer, 60 Neb. 68. Williams v.
ColdweU, 14 N. Y. App. Div. 26.
The fact that the publication in question is not pubHshed on Sundays
or hohdays does not take it out of the chissification of a daily newspaper.
It has been held that a newspaper which is print(>d and published five
days in each week is a daily newspaper within the meaning of a provision
requiring all legal advertisements to be published in daily newspapers.
Fairhaven Pi(blishing Co. v. Bellingham, 51 Wash. 108.
In my opinion, the application of the legal principles stated herein to
the information made available to me concerning the publication in ques-
tion would indicate that it may properly be regarded as a daily newspaper
in the city of Boston within the purview of statutory requirements such
as that quoted above from G. L. (Ter. Ed.) c. 159, § 51, calling for pub-
lication in such daily newspapers as may be prescribed by the depart-
ment. See Attorney General's Report, 1939, 78.
Very truly yours,
Robert T. Bushnell, Attorney General.
Settleme7it — Minor — Parents.
Sept. 22, 1941.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — You have asked my opinion as to the settlement in 1933
of a certain minor child.
From the facts as you have stated them in your letter it appears that
the minor's mother had, before her marriage in 1928 to the minor's father,
acquired a settlement in Cambridge by continuous residence: that the
father at the time of the marriage had no settlement within the Common-
wealth nor did he acquire one in Massachusetts before the birth of the
minor in 1932.
The mother, by her marriage to a man who had no settlement within
the Commonwealth, did not lose her settlement in Cambridge. Since
her husband acquired no settlement in Massachusetts before her death
in 1933 and she herself had worked no change with respect to it, her settle-
ment in 1932 and 1933 was in Cambridge.
Since the minor's father had no settlement within the Commonwealth
in 1932, the child, by force of the provisions of G. L. (Ter. Ed.) c. 116,
§ 1, cl. 3, acquired the settlement of her mother, which was Cambridge.
Treasurer & Receiver General v. Boston, 255 Mass. 499, 505.
The applicable statutory provisions are as follows: —
(7. 7>. {Ter. Ed.) c. 116, § /, Clauses 2d and 3d.
"Second, A married woman shall follow and have the settlement of her
husband; but if he has no settlement within the conmionw(>alth, she
shall retain the settlement, if any, which she had at the time of her mar-
riage. . . .
Third, Legitimate childnui shall follow and have the settlement of their
father if he has one within the connnonwealth, otherwise they shall follow
and have the settlement of their mother if she has one; ..."
You state in your letter that it is the contention of the city of Cam-
bridge that the mother lost her .settlement in Cambridge because of the
fact that the child's father had a settlement in New York from 1929 to
112 P.D. 12.
1932. In view of the qvioted statutory provisions which have been in
force since 1911, the contention of the city is incorrect as a matter of law.
Very truly yours,
Robert T. Bushnell, Attorney General.
Insurajice — Motor Vehicle Liability Policy — Approval — Reimhursemeni
of Insurer.
Sept. 23, 1941.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir: — You have requested my opinion as to whether you have
"the right to approve" a form of motor vehicle liability policy containing
a certain "reimbursement clause" among the "insuring agreements" ap-
plicable to "Coverage A," which purports to meet the requirements of the
"Massachusetts Compulsory Automobile Liability Security Act," chapter
346 of the Acts of 1925, and all acts amendatory or supplementary thereto.
That part of said "reimbursement clause" which you question reads as
follows : —
"the insured agrees to reimburse the company for . . . any payment the
company would not have been obligated'to make if the exclusions applicable
to Coverage B were applicable to this coverage."
"Coverage B" under said policy provides for optional additional insur-
ance against bodily injury liability, including "guest coverage" and
"extraterritorial coverage." Property damage liability insurance is pro-
vided for under "Coverage C" of said policy. The exclusions applicable
to "Coverage B" referred to in said "reimbursement clause" are set forth
in a portion of the policy entitled "Exclusions": —
"This policy does not apply:
(c) Under coverages B and C, while the motor vehicle is used as a
public or livery conveyance, or for carrying persons for a charge, unless
such use is specifically declared and described in this policy and premium
charged therefor;
(d) Under division 3 of coverage B and under coverage C, while the
motor vehicle is used for the towing of any trailer not covered by like
insurance in the company; or while any trailer covered by this policy is
used with any motor vehicle owned or hired by the named insured and not
covered by like insurance in the company;
((?) Under coverages B and C, while the motor vehicle is operated
(1) by any person under the minimum age required to obtain a license to
operate a private passenger automobile in the state, federal district or
territory, or province in which the motor vehicle is registered or in which
the accident occurs, whichever is lower, or (2) by any person under the
age of 14 years;
. (/) Under coverages B and C, to liability assumed by the insured under
any contract or agreement;
(g) Under coverage B, to bodily injury to or death of any employee of
the insured while engaged in the business, other than domestic employ-
ment, of the insured, or while engaged in the operation, maintenance or
repair of the motor vehicle; or to any obligation for which the insured
may be held liable under any workmen's compensation law;
P.D. 12. 113
You may approve or disapprove said policy form dependinp; upon
whether, in your opinion, it comphes with the kiws of the Commonwealth.
This authority is conferred upon you by G. L. (Ter. Ed.) c. 175, § 113A,
as amended, which provides in part : —
"No motor vehicle liability poHcy as defined in section thirty-four A
of chapter ninety shall be issued or delivered in the commonwealth until
a copy of the form of the policy has been on file with the commissioner for
at least thirty days, unless before the expiration of said period the com-
missioner shall have approved the form of the policy in writing, nor if the
commissioner notifies the company in writing that in his opinion the form
of said policy does not comply with the laws of the commonwealth, specify-
ing his reasons therefor, provided that he shall notify the company in
writing within said period of his approval or disapproval thereof, and
provided, further, that such action of the commissioner shall be subject
to review by the supreme judicial court; ..."
From your request I understand that you also desire my "advice and
opinion" as to whether said poHcy form does comply with the laws of the
Commonwealth.
Were the question one of first impression, it could be argued with con-
siderable logic that the "reimbursement clause," as applied to types of loss
described in the "Exclusions" quoted above, is contrary to the laws of
this Commonwealth. Many of the statutory provisions, as well as the
language contained in several decisions of the Supreme Judicial Court on
related questions, could be cited in support of such a conclusion.
Thus G. L. (Ter. Ed.) c. 90, § 34A, defines a motor vehicle liability
policy as —
"a policy of liability insurance which provides indemnity for or protection
to the insured . . . against loss by reason of the liability to pay damages
to others for bodily injuries, . . . sustained during the term of said policy
by any person, other than a guest occupant of such motor vehicle or of any
employee of the owner or registrant of such vehicle or of such other person
responsible as aforesaid who is entitled to payments or benefits under the
provisions of chapter one hundred and fifty-two, and arising out of the owner-
ship, operation, maintenance, control or use upon the ways of the com-
monwealth of such motor vehicle, ..."
That the words "indemnity for or protection to the insured" are sig-
nificant was recognized by the Supreme Judicial Court, in the case of
Adams v. American Employers Insurance Co., 292 Mass. 260, at 262,
when it said : —
"The policy issued to Cinsky was pursuant to the compulsory motor
vehicle liability insurance statute, and was to protect him against liability
resulting from the ownership, operation, maintenance and control of his
hearse upon 'the ways of this Commonwealth." (Italics mine.)
See also Rose v. Franklin Surety Co., 281 Mass. 538, 540, 541.
No argument is required to establish the fact that if an insured motor
vehicle owner is required to reimburse his insurance company for pay-
ments made by it on account of his liability arising from one of the types
of accidents specified in the "Exclusion" clauses, the policy does not, in
those instances, "provide indemnity for or protection to the insured . . .
against loss by reason of the liability to pay damages ..."
In so far as the "Exclusion" clauses include types of liability other than
114 P.D. 12.
those specifically excepted by -the statutory definition {i.e. liabiHty for
injuries to guests or to persons covered by workmen's compensation in-
surance) the "reimbursement clause" definitely reduces the extent of
indemnity for and protection to the insured which the statutory definition
would seem designed to assure him. The view that the Legislature did
not intend the indemnity and protection to the insured to be limited be-
yond the exceptions specifically contained in the statute is supported by
"the familiar principle of [statutory] interpretation that the express men-
tion of one matter excludes by implication other matters not mentioned."
McArthur Brothers Co. v. Commonioealth, 197 Mass. 137, 139. Simmons v.
County of Suffolk, 230 Mass. 236, 237. Boston & Albany Railroad v. Com-
monwealth, 296 Mass. 426, 432.
Moreover, the Legislature has specifically provided in G. L. (Ter. Ed.)
c. 175, § 113A, that —
"No motor vehicle liability policy as defined in section thirty-four A of
chapter ninety shall be issued ... if it contains any exceptions or exclu-
sions as to specified accidents or injuries or causes thereof."
While the "reimbursement clause" contained in the form of policy
which you submitted to me is not in the form of an "exception" or "ex-
clusion," it certainly is equivalent in substance to a specific "exception"
or "exclusion " so far as it affects the liability of the insured. Consequently,
if this statutory provision prohibiting "exceptions or exclusions" as to
specific types of accidents or injuries or the causes thereof is to be regarded
as intended for the benefit of the insured, as well as for the benefit of other
travelers on the highways, the "reimbursement clause" now under con-
sideration would violate that statutory provision in substance, even if not
in form.
That the Legislature proposed to protect the interests of the insured as
well as to furnish protection to other travelers on the highways is also
manifested by G. L. (Ter. Ed.) c. 175, § 113A, which, after specifying cer-
tain clauses required to be contained in motor vehicle liability policies,
provides : —
"Any such motor vehicle liability policy shall be deemed to contain any
such provision in substance when in the opinion of the commissioner the
provision is stated in terms more favorable to the insured or to a judgment
creditor than herein set forth, and such policy may contain such other pro-
visions not inconsistent with this chapter or said section thirty-four A as
may be approved by the commissioner."
The remedies made available to automobile owners by G. L. (Ter. Ed.)
c. 175, § 113A, as amended, with respect to unreasonable cancellation of
motor vehicle liability policies or refusals to issue such policies, further
indicate a legislative intent to safeguard the interests of such owners.
On the basis of the foregoing and other authorities and arguments it
has been seriously contended that the compulsory motor vehicle insurance
legislation forbids the insertion of any "reimbursement clause" under
"Coverage A," so called, except as to cases involving injuries to guests or
to employees covered by workmen's compensation insurance. However,
that extreme contention is no longer tenable since the decision of the
Supreme Judicial Court in the case of Service Mutual Liability Insurance
Company v. Aronofsky, 308 Mass. 249.
In that case an insurance company sued an insured automobile owner for
reimbursement of amounts paid by it to an employee of the insured, in
P.D. 12. 115
satisfaction of the employee's claim based upon injuries which he had sus-
tained in an accident wliile he was engaged in the business of the insured.
The employer was not insured under the Workmen's Compensation Act.
The motor vehicle liability policy upon which the suit was based contained
a "reimbursement clause" substantially identical with that in the form
of polic}'' which 3^ou sent to me, including the insured's obligation to reim-
burse the insurance company for payments on account of "bodily injury
to or death of any employee of the insured while engaged in the business
of the insured ..." The Supreme Judicial Court held squarely that that
reimbursement provision was not rendered invalid by any statute and that
it was not against public policy. The Court ordered that judgment be
entered requiring the insured to reimburse the insurance company.
Since the original liability of the insured in the Service Mutual case to
his employee was not one of the two types specifically excepted from the
scope of the statutory definition of "motor vehicle liability insurance
policy" (G. L. [Ter. Ed.] c. 90, § 34A), the Court's decision is decisive
of the proposition that the policy may lawfully be drawn up in such a
manner that the insured will be obliged to bear the ultimate loss resulting
from at least one type of liability in addition to those types which the
statutory definition removes from the protection of such a policy.
How far the insurance companies may go under the principle applied
in the Service Mutual decision in requiring that applicants for compulsory
motor vehicle insurance policies agree to reimburse them for payments
made on account of various types of accidents cannot now be determined
with any degree of certainty. The Court's opinion in the Service Mutual
case does not furnish the criteria by which the validity of the exclusion
clauses quoted at the beginning of this opinion might be determined
except as to "Exclusions (c) and (gr)," both of which would doubtless be
held valid. Consequently, notwithstanding possible arguments against
the validity of the "reimbursement clause" to which you direct my
attention, I am not now able to advise you that, even with respect to
"exclusions" other than (c) and {a), the reimbursement clause does not
comply with the laws of the Commonwealth.
To be sure, the Court emphasized in the Service Mutual case the fact
that the defendant could have protected himself from liability under the
"reimbursement clause" of the motor vehicle liabihty policy by procuring
workmen's compensation insurance. If this is to be regarded as an inti-
mation that the insured may properly be required to reimburse the insur-
ance company for amounts paid by it on account of losses which could
have been avoided by the insured, by his doing or refraining from doing
certain types of acts, the extent to which such motor vehicle policies would
protect and indemnify the insured could be reduced to a negligible quan-
tity. Carried to its logical conclusion, the Court's interpretation of the
compulsory motor vehicle insurance law might result in having the ulti-
mate losses from liabilities referred to in the statute imposed upon the
insured, despite the Legislature's definition of a motor vehicle liability
policy as one providing "indemnity for or protection to the insured."
Such uncertainty in a matter affecting some eight hundred thousand
holders of compulsory motor vehicle liability insurance policies in Massa-
chusetts should not be permitted to continue. Every effort should be
made, even at this late date on the legislative calendar, to call the problem
specifically to the attention of the Legislature, and to procure the enact-
ment of legislation which would clearly define the extent to which the
116 P.D. 12.
ultimate loss from such liabilities may be imposed upon policyholders.
The necessity for prompt legislative action is accentuated by the fact that
the Federal Government is urging for defense purposes that several per-
sons use and share the expenses of a single automobile. Under the reim-
bursement clause in question, a motor vehicle owner who follows that
suggestion could be required to reimburse his insurance company for
payments by it as a result of injuries which might be sustained by one
of the co-operating passengers (see "Exclusion (c)").
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Industrial Accidents — Bonding of Employee.
Oct. 6, 1941.
Department of Industrial Accidents.
Gentlemen: — Your board has informed me that the bookkeeper in
the Department of Industrial Accidents and at times another employee
as a substitute bookkeeper have charge of the petty cash account making
some payments therefrom and placing some deposits in the department's
bank account upon which checks are drawn over the signature of the de-
partment's secretary, and with relation to these employees you have asked
my opinion upon three questions of law.
1. Your first question is: —
"Is there any general or specific provision of law requiring that any
officer or employee, and more specifically the secretary and bookkeeper
of the Department of Industrial Accidents, who act in the capacities above
recited, be bonded?"
The Legislature has not passed any single act applicable to the em-
ployees of the departments and services of the Commonwealth generally,
requiring that they or such of them as deal with the money or property
of the Commonwealth should be bonded. The Legislature has in various
statutes, however, provided that certain emploj^ees of designated depart-
ments or services are required to Toe bonded. (C/. G. L. [Ter. Ed.] c. 26,
§ 3, the employees of the Commissioner of Banks; § 4, the Supervisor
of Loan Agencies; c. 10, § 5, the employees of the State Treasurer; c. 13,
§ 40, the secretary of the Board of Registration of Barbers; § 42, the
secretary of the Board of Registration of Hairdressers; c. 23, § 9K, the
employees "handhng money or signing checks" in the Division of Un-
employment Compensation at the discretion of the Director.)
No such provisions have been enacted with relation to the employees
of the Department of Industrial Accidents.
2. Your second question reads : —
"If your answer to the foregoing question is in the negative, has the
Industrial Accident Board authority to require any such officer, employee,
[Secretary or bookkeeper to furnish bond notwithstanding the provisions
of General Laws (Ter. Ed.), chapter 29, section 30?"
The Legislature has not in any of the specific enactments requiring the
bonding of certain designated employees, or groups of employees, used
any language indicating an intention to forbid the bonding of employees
other than those particularly referred to.
Authority has been given to the Department of Industrial Accidents
specifically to appoint a secretary (G. L. [Ter. Ed.] c. 24, § 4), inspectors
P.D. 12. 117
(§5), and, by necessary implication from the language of said § 4, clerical
employees.
An implic^d power arises from the authority granted to the department
to function and to have employees under the provisions of G. L. (Ter.
Ed.) c. 23, §§ 1-7, to make reasonable requirements for the proper and
safe carrying on of its work and the management of its employees.
A requirement as to such employees as handle cash or draw checks on
funds of the department is a reasonable one. It may be made if in the
sound judgment of j^our Board, which constitutes the department, it is
necessary or expedient for the safe and proper administration of its affairs.
The prohibition contained in G. L. (Ter. Ed.) c. 29, § 30, about which
you particularly inquire, has no bearing upon the subject matter of bond-
ing employees. It reads : —
"No officer or board shall insure any property of the commonwealth
without special authoiity of law."
Receiving a bond, either with or without sureties, from an employee
conditioned upon the faithful performance of his duties is not insuring
property within the meaning of said section 30. Such a bond is not a
contract of insurance and, although it indirectly may protect the Com-
monwealth's property against loss, its acceptance is not forbidden by tiie
said section.
Accordingly, I answer your second question that, in the exercise of its
discretion, your Board may require those in its service who deal, with
financial matters to furnish bonds for the faithful performance of their
duties.
3. Your third question reads: —
"If your answer to the second question is in the affirmative, is the
expense of furnishing such bond a direct legal obligation of the Common-
wealth, or, are the persons so required to give bond, whether officers or
employees, entitled to reimbursement under the provisions of General
Laws (Ter. Ed.), chapter 30, section 17?"
Inasmuch as the bonds which your department may require of its em-
ployees will be demanded by virtue of the authority vested in the de-
partment by law, an employee will be "required" to give bond within
the meaning of the quoted word as used in said section 17. It follows
that if the employee pays a premium tb a surety company he will be en-
titled to reimbursement by the terms of said section. The payment of
such a premium is not a direct obligation of the Commonwealth. The
word "official", as used in this section, embraces employees as well as
"officers" in the strict sense of the last quoted word.
I am informed by the Comptroller that for many years the Department
of Administration and Finance has put an interpretation upon the statutes
shnilar to that which I have outlined and that this has resulted in a prac-
tice whereby the Comptroller recognizes as required bonds those given by
any employee dealing with money or bank accounts at the direction of
his department and places upon the appropriate warrants amounts due
for reimbursement of premiums paid.
Very truly yours,
Robert T. Bushnell, Attorneij General.
118 P.D. 12.
State Examiners of Plumbers — Rules — State Buildings.
Oct. 8, 1941.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam : — I acknowledge your request on behalf of the Board
of State Examiners of Plumbers for my opinion as to the Board's respon-
sibility in the event that it approves certain safety devices described in
St. 1941, c. 518, § 3, and required by that statute to be placed upon hot
water tanks.
As you state in your letter, the Board is authorized to make rules relat-
ing to plumbing work in State-owned buildings by G. L. (Ter. Ed.) c. 142,
§ 21, which provides: —
"The examiners shall formulate rules relative to the construction, altera-
tion, repair and inspection of all plumbing work in buildings owned and
used by the commonwealth, subject to the approval of the department of
public health, and all plans for plumbing in such buildings shall be sub-
ject to the approval of the examiners."
You say "The new boiler bill will become part of these rules October 24,
1941," the date upon which St. 1941, c. 518, takes effect. I assume your
meaning to be that St. 1941, c. 518, will then automatically become ap-
plicable to buildings owned and used by the Commonwealth, and that its
provisions will, therefore, constitute an addition to the rules which the
Board has promulgated as to plumbing work in those buildings.
It is my opinion that St. 1941, c. 518, does not apply to buildings owned
and used by the Commonwealth. This statute, which is entitled "An
Act relative to the marking, construction and installation of hot water
tanks," contains four sections, amending, respectively, sections 17, 18, 19
and 22 of G. L. (Ter. Ed.) c. 142. It defines "hot water tanks" and lays
down certain requirements as to the data to be marked on such tanks,
the capacity and construction thereof and the safety devices to be used
on them.
The statute is of general applicability and contains no provision spe-
cifically rendering it applicable to buildings owned and used by the Com-
monwealth.
There is a well-settled presumption of law that such an exercise of the
police power by the Legislature does not apply to property of the Com-
monwealth, unless the Legislature has clearly manifested an intent that
it should do so. I Op. Atty. Gen. 290, 297; II Op. Atty. Gen. 300; V Op.
Atty. Gen. 49; Attorney General's Report, 1935, p. 38. Cf. Attorney
General's Report, 1932, pp. 86, 87; Attorney General's Report, 1934,
pp. 75, 76; Teasdale v. A e»'eW, &c., Co., 192 Mass. 440, 443.
I find nothing in St. 1941, c. 518, that manifests an intent to depart
from the principle just stated. Accordingly, the requirements contained
in that statute do not in any sense become rules relating to plumbing
work in buildings of the Commonwealth. In view of this conclusion it is
my understanding that there is no occasion for me to answer the hypo-
thetical questions contained in your letter, those questions being based
on the assumption that the new statute would be applicable to state-
owned and used buildings.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12.
119
Governor — Petition for Appointment of Supervisors in Polling Places.
Oct. 15, 1941.
His Excellency Leverett Saltonstall, Governor of the Commonwealth.
Dear Sir : — I acknowledge receipt of a letter from your secretary,
Hon. Joseph R. Cotton, enclosing a petition addressed to you and pur-
porting to seek the appointment of supervisors in the polling places for
the city of Boston during the coming municipal election. Mr. Cotton
referred to two possible defects in the petition and requested that I advise '
the Governor whether, for the reasons stated by him or for any other
reason, "the petition is not in proper form."
In my opinion the petition does not comply with the requirements set
forth in G. L. (Ter. Ed.) c. 54, § 2,3, pursuant to which it purports to have
been filed.
The statute quoted above provides that "upon the written petition of
ten qualified voters of a ward or of a town, presented at least twenty-one
days before a state or city election therein, the governor, with the advice
and consent of the council, shall appoint" supervisors to act at such an
election. The statute contains further detailed provisions as to the manner
in which the supervisors shall be chosen and function.
G. L. (Ter. Ed.) c. 50, § 1, provides that the word "town" as used in
chapters 50 to 57, inclusive, of the General Laws shall not include "city."
Consequently, with reference to an election to be held in the city of Boston,
it appears that a petition filed pursuant to G. L. (Ter. Ed.) c. 54, § 23,
must be signed by ten qualified voters of a ward of the city. Upon the
petition which was forwarded to me by Mr. Cotton the following addresses
appear beside the names of the signers : —
Address.
220 Harrison Ave., Boston .
1203 Boylston St., Boston .
544 Ashmont St., Dorchester
103 (or 163) Paris St., E. Boston
411 Marlboro St., Boston .
11 E. Newton St., Boston .
15 Maple St., W. Ro.xbury .
276 Cambridge St., Boston
5 1/9 Ashburton PL, Boston .
2005 Commonwealth Ave., Boston
79 Waltham St., Boston
73 Carver St., Boston .
118 Hudson St., Boston
Ward.
3
5
16
1
5
8
20
3
3
22
3
5
3
The petition as filed did not contain references to wards as set forth above
but that information has been obtained from the election department of
the city of Boston.
Thus it appears that the petition does not meet the requirements of
G. L. (Ter. Ed.) c. 54, § 23, since it is not a petition by ten voters of any
single ward in the city.
Very truly yours,
Robert T. Bushnell, Attorney General.
120 P.D. 12.
Civil Service — Applicant for Examination — Domicile.
Oct. 15, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You have asked my opinion as to whether by reason of a
domicile in Massachusetts a certain appHcant for examination is eligible
to take a civil service examination for a position in the classified civil
service of the Commonwealth.
Rule 5 of the Civil Service Rules, in its applicable part, provides: —
"An applicant for appointment to any office or position to which these
rules apply must be a citizen of the United States, who has domiciled in the
Commonwealth for one year next preceding the date of filing his appHca-
tion; . . . but the Commissioner may waive the restriction of domicile
in any case when in his opinion the needs of the public service may so
require."
You have informed me of the following facts relative to the applicant's
domicile: That he was born in, and has "claimed a residence of intention"
in the city of Lawrence; that he is in the employ of the Federal Govern-
ment and since 1928 has "been in various parts of the northeast;" that
"for the last seven years he has been stationed in Pocono Pines, Penn-
sylvania;" has twice voted there, and that at the present time "his wife
lives with him at that point." You also state that his parents are now
residents of Lawrence and "that he looks forward to the time when he
may return there."
Where a person resides or is "domiciled", as the quoted word is em-
ployed in your said Rule 5, is to be determined by an examination of all
the facts with relation to the place where the person dwells and with regard
to his present intent concerning his relation to such place.
The determination of what is the domicile of a person is mainly a ques-
tion of fact. Feehan v. Tax Commissioner, 237 Mass. 169, 171; Hutchins
V. Broume, 253 Mass. 55, 57; Hayes v. Hayes, 256 Mass. 97.
The truth of the facts in any particular case is to be determined by you,
and it is of the utmost importance that in arriving at a determination you
should have before you all the relevant facts concerning the acts and
intentions of the applicant.
With relation to the principles of law applicable to the ascertainment
of domicile, as you were informed in an opinion of the Attorney General,
dated June 2, 1941, the Supreme Judicial Court has said in Tuells v. Flint,
283 Mass. at page 109: —
"General principles governing the nature, acquisition and change of
domicil are settled. An exact and comprehensive definition of domicil is
difficult. In general it is said to be the place of one's actual residence with
intention to remain permanently or for an indefinite time and without any
certain purpose to return to a former place of abode. Every one must
have a domicil somewhere. Every one has a domicil of origin. A domicil
once established continues until a new one is acquired regardless of changes
in temporary sojourn. Mere absences from home even for somewhat pro-
longed periods do not work a change of domicil. Litention without the
concurrence of the fact of residence is not sufficient to change or to create
domicil. Both must coexist. Aspiration, hope, desire or mere verbal
assertion, although evidence of intention, cannot overcome the force of
P.D. 12. 121
irrefutable facts. Cases arise in which there is a distinction between
domicil and residence. A person may have a residence in one place for
various reasons comparatively temporary in nature such as performing
the duties of an office, transacting a business, seeking improvement in
health, pursuing pleasure or visiting relatives, and yet have his permanent
home or domicil in a different place."
The facts which you have laid before me arc somewhat meager. If they
constitute all the relevant facts ascertainable, you would be warranted in
determining that the applicant did not now have a domicile in Massachu-
setts. If, how^ever, you find that there are other facts connected with the
movements and present circumstances of the applicant, it will be your duty
to give them due consideration, guided by the principles of law which I have
indicated, in making a determination as to the domicile of the applicant
during the year preceding the date of his filing an application for ex-
amination.
Very truly yours,
Robert T. Bushnell, Attorney General.
Retirement — Employee of Soldiers' Home — Veteran.
Oct. 20, 1941.
Hon. Patrick J. Moynihan, Chairman, Commission on Administration
and Finance.
Dear Sir : — You have requested my opinion as to whether a certain
veteran, who has been an employee of the Soldiers' Home in Massachu-
setts since 1921 and is now incapacitated for active service, can be con-
sidered as having been in the "service" of the Commonwealth for at least
ten years so that he might be retired under the terms of G. L. (Ter Ed )
c. 32, § 56. '^
As the Soldiers' Home was not an institution of the Commonwealth be-
fore December 1, 1934, this veteran was not in the ''service" of the Com-
monwealth until that date, and inasmuch as ten years have not elapsed
since then, he has not yet become eligible for retirement under section 56.
Said section 56, with relation to a person classified by its terms as a
"veteran", by reason of service in the Spanish War, Phihppine Insur-
rection or World War, provides: —
"... a veteran, who is in the service of the commonwealth, . . . shall
be retired with the consent of the retiring authority, if incapacitated for
active service, . . .; provided, that he has been in the said service at
least ten years, . . ."
The Soldiers' Home was incorporated by St. 1877, c. 218, amended by
St. 1886, c. 32, under the title of "The Trustees of the Soldiers' Home in
Massachusetts." Prior to December 1, 1934, it was a privately-owned
charitable corporation, though receiving contributions for its support from
the Commonwealth (see Mass. Const., Art. XLVH, § 2), and having cer-
tain of its trustees appointed by the Governor (St. 1889, c. 282).
St. 1931, c. 452, provided that, upon transfer and conveyance of all the
property of the Home to the Commonwealth, said corporation should be
deemed to be dissolved, and that the Soldiers' Home should become a
State institution on December 1, 1934 (see also Resolves of 1934, c. 41).
The transfers and conveyances called for by said chapter 452 were duly
122 P.D. 12.
made and the Home, as you state in your letter, was taken over by the
Commonwealth as a State institution on December 1, 1934.
It has been held in opinions of two of my predecessors in office, with
which I concur, that before December, 1934, the Soldiers' Home was not
a State institution, and that the employees of the Home were not employees
of the Commonwealth. VII Op. Atty. Gen. 73. Opinion of the Attorney
General to Treasurer of Soldiers' Home, February 5, 1913.
On December 1, 1934, the employees of the Home were gathered into
the service of the Commonwealth for the first time. Even if a person has
been an employee of the Home since 1921, he cannot be regarded as in the
service of the Commonwealth before December 1, 1934.
Specific provision was made by the Legislature for the retirement of
employees of the Soldiers' Home who were veterans of the Civil War and
had been in the "service of the Soldiers' Home in Massachusetts" for
fifteen years (St. 1913, c. 642, now G. L. [Ter. Ed.] c. 32, § 51). No
similar provisions applicable to employees of the Home, who were veterans
of other wars, have been made by the Legislature.
G. L. (Ter. Ed.) c. 32, § 3 (5), which concerns the creditable service of
State employees formerly in the service of institutions, public or quasi-
public enterprises and corporations, has no application to the retirement
of an employee who is a veteran, under G. L. (Ter. Ed.) c. 32, § 56, for
section 3 (5) is confined in its effect to the retirement of members of the
State Retirement Association as such. Hough v. Contributory Retirement
Appeal Board, 309 Mass. 534.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — Graduated Income Tax.
Oct. 30, 1941.
Hon. Frederick B. Willis, House Chairman of Conference, Committee
on Old Age Assistance.
Dear Sir: — You have requested my opinion as to the constitutionality
of the provisions contained in section 9 of House Bill No. 2913. That
section would insert in chapter 62 of the General Laws a new section, read-
ing as follows : —
"Section 7C. The excess over one thousand dollars of the income, as
defined in section six, received by any inhabitant during the preceding
calendar year and derived from professions, employments, trade or business
shall be taxed at one quarter of one per cent per annum; provided that
the deductions under paragraphs (g) and (h) of said section six shall not
be allowed in computing the income herein made taxable nor shall any
exemption of such income be made. The tax imposed by this section shall
be in addition to taxes imposed by section five. The receipts from the
tax imposed by this section, after deducting therefrom the amount of the
expenses of administering and collecting said tax, and after deducting such
of said taxes as have been refunded under this chapter and under section
twenty-seven of chapter fifty-eight, together with any interest or costs
paid on account of refunds, shall be credited to the old age assistance fund
established under section eleven of chapter one hundred and eighteen A."
While the question is not entirely free from doubt, it is my opinion that
the provisions of the proposed new section 7C of chapter 62 of the General
P.D. 12. 123
Laws would violate the provisions of Article 44 of the Amendments to the
Constitution of the Commonwealth.
General Laws (Ter. Ed.) c. 62, § 5 (h), now imposes a tax at the rate of
13^2% on the "excess over two thousand dollars of the income as defined in
section six derived from professions, employments, trade or business ..."
(Temporary surtaxes imposed by St. 1941, c. 416, § 1, are not material to
this discussion.)
The proposed amendment to said chapter 62, contained in section 9 of
House Bill No. 2913, would impose a tax at the rate of }4 of 1% upon "the
excess over one thousand dollars of the income, as. defined in section six,
. . . derived from professions, employments, trade or business ..."
The proposed new section would not permit, in computing net income
taxable under that section, certain deductions which are now permitted
in computing net income taxable under G. L. (Ter. Ed.) c. 62, § 5 (6).
It is apparent that the combined effect of the existing chapter 62, sec-
tion 5 (6), and the proposed new chapter 62, section 7C, would be to
impose a graduated tax upon incomes derived from professions, employ-
ments, trade or business. Thus a person having a net income of SI, 500
per year from this source would be taxed at the rate of }i of 1% on S500.
A person having a net income of $2,500 per year from the same source would
be taxed at the rate of H of 1% on $1,000 and at the rate of 1.75% (1.5 by
section 5 (6) and .25 by section 7C) on the remaining $500 of his taxable
income.
The question whether such a graduated tax may constitutionally be im-
posed upon income was presented to the Justices of the Supreme Judicial
Court in 1929 in connection with a bill then pending before the General
Court. The Opinion of the Justices, 266 Mass. 583, after discussing the
pertinent constitutional provisions, answered in the negative the question :
"In imposing taxes on incomes, may the General Court, conformably to
the provisions of the Constitution of the Commonwealth, provide for the
grading of said taxes in respect to the amount of income received?"
This conclusion was based primarily on the proposition that a tax on
income is a tax on property and, consequently, is subject to the provision
contained in the Forty-fourth Amendment to the Constitution requiring
that taxes be levied at a uniform rate upon income from the same class
of property. In the Opinion, the Justices did not differentiate between
income received from tangible or intangible property and income received
from professions, employments, trade or business. However, in several
of the court's decisions it has been held that taxes on income imposed by
chapter 62 of the General Laws are property taxes. Harrison v. Commis-
sioner of Corporations and Taxation, 272 Mass. 422, 427. De Blois v.
Commissioner of Corporations and Taxation, 276 Mass. 437, 439. More
specifically, the court held, in the case of Raymer v. Tax Commis-
sioner, 239 Mass. 410, that income received by the complainant as asso-
ciate professor in a university was "income derived from property"
within the meaning of the Forty-fourth Amendment to the Constitution.
This principle stated in the Raymer case has not been overruled or
questioned in any subsequent decision of the Supreme Judicial Court and,
obviously, there can be no assurance that it would be overruled if the
question were now to be presented to the court.
In my opinion, therefore, the enactment of section 9 of House Bill No.
2913, which would insert the proposed new section 7C in chapter 62 of
the General Laws, would have the effect of imposing a graduated tax on
124 P.D. 12.
income, in violation of |the Forty-fourth Amendment to the Constitution
of the Commonwealth. In my opinion, this conclusion is not affected
by the fact that the two or more rates of taxation included in a graduated
income tax system are imposed by different enactments or by the fact
that the revenues derived from the impositions at different rates are allo-
cated by the Legislature to different funds or purposes. If the contrary
were true, the constitutional requirement of uniformity of rate of taxa-
tion could very easily be nullified or circumvented by the enactment of
piecemeal tax legislation instead of a comprehensive tax statute.
I have stated my opinion that the proposed provisions for taxes on
income contained in section 9 of House Bill No. 2913 are unconstitutional.
However, there are several other methods by which funds deemed neces-
sary for carrying out an old age assistance program may be raised con-
stitutionally by means of a tax on income. Thus :
1. If G. L. (Ter. Ed.) c. 62, § 5 (6) were amended by reducing the two
thousand dollar exemption from the tax imposed by that section, addi-
tional revenue would, of course, be made available.
2. If the present exemption of two thousand dollars contained in sec-
tion 5 (b) were retained, and the rate of tax on incomes in excess of two
thousand dollars were increased, additional revenue would be obtained.
These two methods are suggested merely by way of illustration and
are not intended to indicate that no other methods could be devised
within the framework of the Forty-fourth Amendment.
' Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Education — Private Trade School — Definition.
Nov. 7, 1941.
Hon. Walter F. Downey, Conwiissioner of Education.
Dear Sir : — You have asked my opinion as to the type of school
which comes within the meaning of the term "private trade school" as
the quoted words are defined in St. 1941, c. 583, § 2, which amends G. L.
(Ter. Ed.) c. 93, by inserting a new section (21A) in said chapter 93.
Said section 21 A reads —
"The term 'private trade school' shall, in sections twenty-one to twenty-
one D, inclusive, mean a school maintained, or classes conducted, for the
purpose of teaching any trade or industrial occupation for profit or for
a tuition charge but shall not include a private business school, school or
college regularly chartered and authorized by. the laws of the common-
wealth to grant degrees, an endowed school which offers approved courses
without profit, or a school exclusively engaged in training physically
handicapped persons or a school conducted by any person for the edu-
cation and training of his own employees."
Said St. 1941, c. 583, by amendment of said chapter 93, inserted therein
three other new sections after saiS section 21 A, which provide, among
other things, that under penalty of a fine no person shall operate a "pri-
vate trade school" unless it is approved in certain particulars and licensed
by you.
The words "trade" and "industrial occupation" have a varied and
often broad meaning when employed singly and in statutes relating to
purposes other than the present one. Read together, as used in said sec-
P.D. 12. 125
tion 21 A in the phrase "a school maintained, or classes conducted, for the
purpose of teaching any trade or industrial occupation for profit . . ," in
the context of the whole statute, said chapter 583, the words "trade" and
"industrial occupation" mean a craft or calling carried on either by
hand work or by the use of tools or machines, as distinguished from a
commercial enterprise or a profession.
It is not possible to state categorically all the different kinds of schools
which fall within the definition of "private trade school" set forth in said
section 21A. The definition includes all those schools conducted for
profit w4ierein is taught a craft or calling carried on either by handwork
or by the use of tools or machines which is not a commercial enterprise,
in the sense of an occupation primarily concerned with buying or selling,
nor a profession, in the sense of an employment requiring a learned educa-
tion and mental rather than manual labor. The definition plainly does not
include those schools expressly excluded from its terms by the language of
section 21 A.
The definition does not include those schools which are specifically
regulated by other statutes, such as barber schools (G. L. [Ter. Ed.]
c. 112, § 87P); schools registered by the Board of Registration of Hair-
dressers (G. L. [Ter. Ed.] c. 112, §§ 87T-87JJ); Vocational Schools
(G. L. [Ter. Ed.] c. 74). The statutes of the Commonwealth are to be
read when possible so as to form an harmonious whole. It is not to be
thought that the Legislature intended to provide in the present measure
for a form of control inconsistent with that already specifically set up in
other enactments for particular kinds of schools. Such schools are by
necessary implication excluded from the scope of the act under consid-
eration.
"Aviation schools" and "X-Ray schools", to which you refer, are, as
ordinarily conducted, within the terms of the definition.
It is primarily a question of fact whether any particular school or type
of school is "a private trade school" within the definition of the statute.
This question of fact is to be determined by you upon a consideration of
all the data applicable to any particular school or type, having in mind
the general principles of law relative to the statutory definition which I
have outlined.
Very truly yours,
Robert T. Bushnell, Attorney General.
Metropolitan District Water Supply Commission — Property of Submerged
Town — Trust.
Nov. 7, 1941.
Metropolitan District Water Supply Commission.
Gentlemen : — You write that the Commission has in its possession
two savings bank books representing deposits which formerly were the
property of the Town of Greenwich and were held by it as trustee for the
benefit of its pubhc library. That town ceased to exist as a municipal
corporation in 1938, pursuant to the provisions of St. 1927, c. 321, and
those portions of the town which were not taken for the purpose of a
water storage reservoir under that act have been annexed to adjoining
towns. A substantial part of Greenwich has been thus annexed to the
Town of New Salem (St. 1927, c. 321, § 13), and by authority of your
Commission the books and other personal property of the Greenwich
126 P.D. }2.
Public Library have been turned over to the Free Public Library of New
Salem. You request my opinion "as to whether or not these two trust
funds should be turned over to the Town of New Salem, the income there-
from to be used to help maintain its public library."
In my opinion, you may dispose of these funds only in pursuance of a
decree of a court of equity.
I assume that the Greenwich Public Library was an institution con-
ducted for public benefit, in which case a trust for its benefit is a charitable
trust. Frazier v. Merchants National Bank, 296 Mass. 298, 300; Minns
V. Billings, 183 Mass. 126, 130. When the beneficiary of a charitable
trust ceases to exist, the trust will not fail if its creator was motivated by a
general charitable intent, but a court of equity will order it applied cy
pres in a manner conforming as nearly as possible to its terms. Osgood v.
Rogers, 186 Mass. 238, 241.
St. 1927, c. 321, § 14, provides in part as follows: —
"All the property belonging to the towns of Enfield, Greenwich and
Prescott shall upon the annexation of said towns to adjacent towns by
authority of this act, vest in and become the property of the common-
wealth for the benefit of the metropolitan water district, and the common-
wealth shall succeed to all the rights, claims and causes of action of each
of said towns, and shall assume and be liable for all the debts, obligations,
trusts, duties and liabilities of each of said towns. . . . All books, papers,
monies and other property in the possession of the treasurer of each of
these three towns or of any town officer thereof shall be turned over to the
commission at the time of said annexation, and the commission shall wind
up and liquidate the affairs of each such town as speedily as possible. . . ."
It thus appears that the funds to which you refer are now held subject
to the trust upon which they were held by the Town of Greenwich and
that appropriate action should be taken toward a discharge of the respon-
sibility of that town in relation to them. Although the Greenwich Public
Library, the beneficiary of the trust, is no longer in being, the Commission
has no authority to make what is in effect a cy pres application of these
moneys by transferring them to others upon a different trust. Trustees
of Andover Seminary v. Visitors, 253 Mass. 256, 297. The disposition of
these trust funds should be determined by decree of the appropriate court
upon a petition for instructions.
I am informed that as a result of the dissolution, under St. 1927, c. 321,
of several townships similarly situated, the Commission has in its posses-
sion a number of funds formerly held by the towns on like trusts. In the
interests of economy and expediency, the number of court hearings neces-
sary to obtain instructions as to their disposition should be reduced to a
minimum. With this object in mind, I suggest that you confer with me
as to the method by which it may be accomplished.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 127
Civil Service — Plumbing Inspectors in Towns — Authority to Classify.
Nov. 7, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You requested my opinion as to whether or not the Divi-
sion of Civil Service is authorized to classify plumbing inspectors in towns
which have not voted to accept the provisions of the Civil Service Law and
Rules. In my opinion, such a classification is not only authorized but is
required by the pertinent statutes.
The basic provision authorizing the Civil Service Commission to provide
by rule for the classification of positions and employments in the public
service appears in G. L. (Ter. Ed.) c. 31, § 3, which provides in part: —
"The commission shall, . . . make rules and regulations which shall
regulate the selection of persons to fill appointive positions in the govern-
ment of the commonwealth, the cities thereof, and any such towns as have
been placed under its jurisdiction by any act of the general court or by
accepting provisions of this chapter or corresponding provisions of earlier
laws, . . . Such rules shall be of general or limited application, shall be
consistent with law, and shall include provisions for the following: —
(a) The classification of the positions and employments to be filled in
the cities and towns of the commonwealth subject to the provisions of this
chapter :
})
In addition to the general powers conferred by the foregoing section,
certain specific classifications are required by G. L. (Ter. Ed.) c. 31, § 4,
which, until the enactment of St. 1941, c. 49, read in part as follows: — ■
"The following, among others, shall he included within the classified civil
service by rules of the commission: . . .
All sealers and deputy sealers of weights and measures in towns of over
ten thousand inhabitants and in cities, . . .
Members of police and fire departments of cities and of such towns as
accept the provisions of this chapter, or have accepted corresponding pro-
visions of earlier laws, . . .
Inspectors of plumbing in receipt of an annual salary;
Janitors of school buildings in cities, and in such towns of over twelve
thousand inhabitants as accept this paragraph; . . .
Supervisors of attendance in cities, and in such towns of over twelve
thousand inhabitants as accept this paragraph; . . .
(Italics mine.)
St. 1941, c. 49, amended section 4 by striking from the provision referring
to inspectors of plumbing the words "in receipt of an annual salary."
Your request in effect raises the question whether, by virtue of the pro-
visions quoted above, all inspectors of plumbing are subject to classification
by the Civil Service Commission, regardless of whether the particular
town has voted to accept the provisions of chapter 31 of the General Laws
or corresponding provisions of earlier laws, or whether the particular town
or the position of plumbing inspector within it has been placed under the
jurisdiction of the Civil Service Commission by any other act of the Gen-
eral Court.
128 P.D. 12.
It is elementary that the Legislature is supreme in the control of cities
and towns, subject to the provisions of the Constitution, and that this
legislative power of control embraces regulation by law of employment
in the service of cities and towns. Opinion of the Justices, 303 Mass. 635,
639; 138 Mass. 601, 603. In my opinion, the enactments referred to above
manifest a legislative intent to regulate the employment of inspectors of
plumbing in all towns irrespective of whether they have accepted the pro-
visions of the Civil Service Law and Rules.
The meaning of a particular provision of a statute is to be ascertained by
construing the statute as a whole so as to make it an effective piece of
legislation in harmony with common sense and sound reason. Dexter v.
Dexief, 283 Mass. 327; Knapp v. Amero, 298 Mass. 517. The conclusion
which I have reached appears to be required by an examination of the
pertinent statutes.
Thus, section 4 specifically states that with respect to members of police
and fire departments of towns the requirement of inclusion within the clas-
sified civil service is applicable only to such towns as have accepted the pro-
visions of chapter 31 or corresponding provisions of earlier laws. Similarly,
janitors of school buildings in towns are required by section 4 to be in-
cluded within the classified civil service only in those towns of over twelve
thousand inhabitants which accept that provision of the law. With respect
to sealers of weights and measures in towns, the requirement is specifically
limited to towns of over ten thousand inhabitants. By contrast, no limita-
tion or qualification whatever is stated in section 4 concerning the require-
ment that inspectors of plumbing be included within the classified service.
The unqualified statement with respect to the inclusion of plumbing
inspectors within the classified civil service, appearing in a section which
contains explicit qualifications with respect to the same requirement as
applied to other positions, in my opinion evidences a legislative intent
that all plumbing inspectors be included within the classified service.
McArthur Bros. Co. v. Commonwealth, 197 Mass. 137, 139; Boston & Albany
R.R. V. Commonwealth, 296 Mass. 426, 432. This interpretation is sup-
ported by the history of the legislation. See St. 1893, c. 477, § 5; St.
1894, c. 455, §§ 5, 10, 12; Revised Laws, c. 103, § 5; St. 1909, c. 536, § 7.
Very truly yours,
Robert T. Bushnell, Attorney General.
Metropolitan District Commission — Employment of Architects —
Payment.
Nov. 17, 1941.
Metropolitan District Commission.
Dear Sirs : — In a recent communication you asked my opinion as to
whether or not the Metropolitan District Commission may pay a certain
firm of architects and engineers a specified sum of money in full payment
for architectural services rendered by them in connection with the design
of a proposed addition to the Club House at the Ponkapoag Public Golf
Course.
You informed me that a contract executed by your Commission and
this firm of architects and engineers provided that the latter should re-
ceive a fee of six per cent of the cost of the work to be done; that, after
submission of plans by the architects and after approval thereof by the
Governor, the project was indefinitely postponed; that the contract also
P.D. 12. 129
provided that if any work designed or specified by the architect is aban-
doned or suspended, the architect is to be paid for the services rendered
on account of it; that the said firm is wilhng to accept the sum of four
hundred and fifty dollars in full satisfaction of its claims; and that your
Commission is willing to pay said sum to the architect as full payment if
the Commission may lawfully do so.
In my opinion, your Commission has no authority to make such a pay-
ment under the circumstances stated by you.
It is apparent that the claim of the architect is not a liquidated one
determinable as to the specific amount by reference to the terms of the
contract. In essence, the proposed payment would constitute a com-
promise of an unliquidated claim, and your Commission has no authority
to make such a compromise. See George A. Fuller Co. v. Commonwealth,
303 Mass. 216, 221; Attorney General's Report, 1939, 79.
The claim of the architect may be made the subject of a petition filed
under General Laws (Ter. Ed.) c. 258. A compromise may not lawfully
be effected, in the absence of express legislative authorization, until after
the bringing of a petition. George A. Fuller Co. v. Commonwealth, 303
Mass. 216, 221.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Applicants for Positions as Stationary Firemen —
Examination.
Nov. 24, 1941.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — 1. You have informed me that it has been the policy of
the Division of Civil Service, with relation to those applying for positions
as stationary firemen — which positions are classified in the official service
as Class 26, by Rule 4 of the Civil Service Rules — to require nothing
further of applicants than a presentation of their licenses as firemen or
engineers and the passing of a physical examination. You state that such
applicants after passing the physical examination are placed upon an
appropriate eligible list in the order of the dates on which they filed their
applications, preference being given to veterans.
You advise me that, since the legality of the foregoing procedure has
been questioned, you now propose a new procedure under which you will
accept "the m_arking given these applicants by the State Department of
Public Safety" — and combine the marks so given with a mark for ex-
perience, such experience to be graded by your Division. You further
propose to place the names of applicants on the eligible list "in the order
of their respective ratings, obtained as a result of the mark given by the
State Department of Public Safety and the experience mark."
I assume that the "mark given by the State Department of Public
Safety" is a mark given the applicant by such department upon a pre-
vious written examination for a license to act as a stationary fireman
under G. L. (Ter. Ed.) c. 146, §§ 46, 49-51, and that the grading for ex-
perience will be based upon a statement of experience made by the appli-
cant to your Division.
You ask me whether this new procedure would m.eet the requirements
of G. L. (Ter. Ed.) c. 31, § 15.
In my opinion, it would not meet such requirements.
130 P.D. 12.
The applicable portion of said section 15 provides, with certain excep-
tions not here material, that —
"no person shall receive an original appointment to the classified official
service of the commonwealth or any city or town thereof subject to the
provisions of this chapter otherwise than hy virtue of a competitive exami-
nation."
As to your proposed procedure, although the Director, by G. L. (Ter.
Ed.) c. 31, § 2A (b), is given authority —
"to determine and pass upon the qualification of applicants, and hold
examinations for the purpose of establishing eligible lists" —
he is not authorized by any provision of said chapter 31 to accept in lieu
of his own judgment the determination of other officials as to such quali-
fications nor to accept marks given by other officials upon examinations
for other purposes held by them, as a substitute for his own examinations
and marks awarded upon the latter. No rules of the Commission made
with relation to examinations purport to give him authority to adopt
such a course.
The general context of the sections of chapter 31 dealing with examina-
tions indicates a legislative intent that the Director is to take into account
in grading applicants only his own examinations. Section 10 of chapter 31
specifically provides that —
"... Examinations shall be conducted under the direction of the di-
rector, who shall determine the form, method and subject matter thereof;
. . . The director shall determine the scope and weight of examina-
tions; ..."
The Director may not, therefore, as you propose, place the names of
applicants on an "eligible list in the order of their respective ratings,
obtained as a result of the mark given by the State Department of Public
Safety and the experience mark."
Furthermore, the examinations given by the Department of Public
Safety to those seeking licenses as stationary firemen by the provisions of
said G. L. (Ter. Ed.) c. 146, §§ 46, 49-51, are qualifying examinations, not
competitive ones. Moreover, the holders of such licenses have not all
necessarily taken the same examination from the Department of Public
Safety so that no element of competition has entered into the attainment of
the marks which they have severally received from the said department.
Combining the marks so obtained with marks based on the Director's
grading of experience would produce a final marking in no sense based upon
a "competitive examination," such as is required by said G. L. (Ter. Ed.)
c. 31, §15.
2. You have also informed me that applicants for the positions of boiler
engineers, likewise in said class 26, have been placed upon an eligible list
in order of the percentage obtained by the marking of the experience of
the applicants, veterans being given preference. No further examination
was required of these applicants after they had exhibited engineers' li-
censes previously granted them by the Department of Public Safety.
You have asked me whether in my opinion such procedure constitutes a
competitive examination within the meaning of said G. L. (Ter. Ed.) c. 31,
§ 15.
I am of the opinion that it does not. It is provided in section 10 of said
chapter 31 that —
P.D. 12. ' 131
"Examinations shall be conducted under the direction of the director,
who shall determine the form, method and subject matter thereof; pro-
vided, that they shall relate to matters which will fairly test the fitness
of the applicants actually to perform the duties of the positions for which they
apply. ..."
The submission of an account of the experience of the applicant cannot
of itself reasonably be said to constitute such an examination as is con-
templated by said section 10, which requires that it is to be such as to test
the fitness of the apphcant to perform the duties of a position. That
experience may throw light on such fitness is recognized by the provisions
of said section 10 with relation "to questions in examinations relating to
education, training and experience," and the provisions of section 13 of said
chapter 31, requiring statements from applicants of various matters con-
cerning themselves, including "previous employment in the public serv-
ice," but no provision of the statute or of the rules indicates an intent to
permit a mere statement of experience to be treated as the "competitive
examination" required by said section 15.
An eligible list may not properly be established, based upon the procedure
which you have advised me was adopted with relation to applicants for
positions as boiler engineers. An actual competitive examination should
be given by the Director upon which the candidate should be marked in
order that the provisions of G. L. (Ter. Ed.) c. 31, § 15, may be complied
with.
Very truly yours,
Robert T. Bushnell, Attorney General.
Division of Employment Security — Board of Review — Traveling Expenses
of Members.
Nov. 27, 1941.
Mr. Robert E. IMarshall, Director, Division of Employment Security.
Dear Sir : — Through the Board of Review in your division you have
asked my opinion as to whether the members of said Board are entitled
to have the expense of traveling from their homes to the Boston office of
the Board paid by the Commonwealth, when hearings are held at such
office.
I am of the opinion that the members of said Board are not entitled to
have such traveling expenses paid by the Commonwealth.
G. L. (Ter. Ed.) c. 30, § 25, reads: —
"State officers, and members of departments receiving a salary or its
equivalent, who are provided with offices by the commonwealth and
whose duties require regular attendance at such offices, shall not be allowed
or paid by the commonwealth any expenses in the nature of traveling or
living expenses. Such officers or members of departments whose duties
require them to travel elsewhere than to and from the offices provided for
them by the commonwealth, and unpaid state officers or members of
departments, and those whose duties do not require daily attendance and
who receive compensation by the day, shall be allowed their actual reason-
able expenses incurred in the performance of such duties, if such expenses
are authorized by law to be paid by the commonwealth. Bills for such
expenses shall be itemized and the dates when, and the purposes for which
such expenses were incurred shall be stated before their allowance by the
comptroller."
132 P.D. 12.
Before the present year the members of the Board of Review, under the
provisions of G. L. (Ter. Ed.) c. 23, § 9N (6), as amended by St. 1939,
c. 20, received compensation by the day. It is apparent from the facts
which you have given me that the duties of the members pursuant to
St. 1939, c. 20, did not require daily attendance at the office in Boston
which was provided for them by the Commonwealth. They were then
within that class of persons referred to in G. L. (Ter. Ed.) c. 30, § 25,
"whose duties" did "not require daily attendance and who receive com-
pensation by the day," and so were "to be allowed their actual reasonable
expenses incurred in the performance of" their duties.
Although St. 1939, c. 20, § 9N (6), contained a specific provision in its
last sentence providing that "Members of the board shall receive their
traveling and other necessary expenses incurred in the performance of
their duties," such provision was not necessary because such expenses
were already provided for by force of the preexisting terms of G. L. (Ter.
Ed.) c. 30, § 25.
Statute 1941, c. 685, further amended said G. L. (Ter. Ed.) c. 23, § 9N (6),
so that the members of the Board of Review receive annual salaries instead
of 'per diem compensation. Said amended section 9N (6) further provided
that "all members shall devote their whole time in office hours to the
duties of their office."
The members of the Board are now brought within that class of officers
mentioned in said G. L. (Ter. Ed.) c. 30, § 25, who are "receiving a salary
. . . who are provided with offices by the commonwealth and whose
duties require regular attendance at such offices." It is provided that
such officers "shall not be allowed or paid by the commonwealth any
expenses in the nature of traveling or living expenses" except that "such
officers . . . whose duties require them to travel elsewhere than to and
from the offices provided for then^ by the commonwealth . . . shall be
allowed their actual reasonable expenses."
You have advised me that the members, although holding hearings
from time to time in different parts of the State, hold hearings at their
offices in Boston. Under the present act they are required to "devote
their whole time in office hours to the duties of their office," and such
duties require "regular attendance" at their offices when they are not
engaged elsewhere.
The amended section 9N (6) retains the words "the members of the
board shall receive their traveling and other necessary expenses incurred
in the performance of their duties" which occurred in said section 9N (6)
before its amendment. Such words have no more effect in the amended
section than they had in the prior section and do not disclose any legisla-
tive intent to disturb the long-established principle as expressed in an
opinion of the late Attorney General Hosea M. Knowlton, I Op. Atty.
Gen. 200, in which he stated : —
"It has not been the policy of the Commonwealth, nor the practice
under its laws, to allow officers for travelling expenses from their homes
to their offices, except when provision is especially made therefor."
It is my opinion that the provision under discussion, read in the light of
the same words in the prior section 9N (6), do not disclose a legislative
intent to make special provision for the payment of such expenses to the
members of the Board of Review.
^- Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 133
INDEX TO OPINIONS
Alcoholic Beverages Control Commission; authority to make and amend
regulations ; restrictions on contents of liquor advertisements
Barbers, Board of Registration of ; limitation of authority ; barbers in Federal
camps and in State institutions
Boston Elevated Railway; Governor and Council; request for opinion from
Justices of Supreme Judicial Court
Building law; special hall; occasional performances; definitions
Civil service; applicant for examination; domicile
Applicants for positions as stationary firemen; examination .
Appointments; seniority
Employee of City of Boston ; Parkman Fund
Employee of Metropolitan District Commission on P. W. A. project .
Examination; applicant; domicile
Maintenance of hospital by city ; employees
Notice of examinations; rec^uired contents
Permanent position; provisional appointment
Plumbing inspectors in towns; authority to classify ....
Provisional appointments
Requisition ; certification according to sex
Reserve police officer; permanent intermittent patrolman; maximum age
Separation from service; reinstatement
Rules; regularlj^ recurrent teinporary employment ....
Superintendent of State hospital; board of trustees; appointment of stew
ward; approval
W. P. A. workers; municipal and federal emplojaiients
Constitutional law; contracts of employment; re-emplojaiient of persons in
military service
Graduated income tax
Legislation authorizing court procedure for extinguishment of restrictions
on certain piece of land; violation of Art. 10 of Bill of Rights
License; price fixing; outdoor parking
Obligation of contracts; abolition of Fall River Board of Finance
Police power; transient vendors
Criminal law; continuance; process
Education, Commissioner of; higher education for children of deceased sol
diers and sailors
Private trade school; definition
Electricians, State Examiners of; hearings; witnesses ....
Employees of Federal Government; minors; females; not governed by State
statute
Employment Security, Division of; board of review; traveling expenses of
members
Funeral Directors, Registration of ; maintenance of establishment .
Governor : commander in chief : orders ; compensation of officer of militia
Petition for appointment of supervisors in polling places
Hairdressers; cosmetologist; massage; body reconditioning
Industrial Accidents, Department of; bonding of employee
Insurance; motor vehicle liabilitj' policy; approval; reimbursement of in
surer
Legislative committees ; mayor; vacancy in office; statutes relating to special
elections; duties of acting mayor of Cambridge ....
Legislative member; interest in state contract
Licenses; trailer camps; hearings
134 P.D. 12.
PAGE
Marine Fisheries, Division of; authority: importation of shellfish .
Marriage; notice of intention; license; residence; federal reservation .
Medicine. Board of Registration in; limitation of authority; examinations
Limitation of authority; investigations
Mental Health, Commissioner of; state department; conveyance of rights
in land; Governor and Council
Metropolitan District Commission ; emplojrnent of architects ; payment
Retirement of employee veteran ; continuity of serAace ....
Right of access to parkway
Services; rules and regulations; penalties; limitation of authority
Sewers; expenditures; Federal grants
Metropolitan District Water Supply Commission; employee; retirement
Property of submerged town ; trust
Milk Control Board ; compensation of members
Minimum Fair Wage Law for Women and Minors; hospital employees
Motor Fuel Sales Act ; distributor ; posting of trade name or mark
Motor vehicle ; bulldozer ; definition
Compulsory insurance law; property damage; employer and employee
judgment; revocation of license
Excise tax; registration; Federal reservation
Municipal building regulations ; authority to restrict use of land
Outdoor advertising; Metropolitan District Commission; authoritj^ to re
strict l^illboards
Rules and regulations concerning setbacks of billboards; business district
definition
Rules; electrical display sign; definition
Parole Board; permits to be at liberty; conditions; revocation
Planning boards ; amendment of zoning ordinances ; hearings
Plumbers; Board of Examiners of; rules; state buildings
Town ordinance relatiA'e to plumbing ; limitations of municipal authoritj^
Publication of notice; newspaper; definition
Public Health, Department of; authority to co-operate with Federal Govern-
ment
Licenses; fees; repayment
Trailer camps ; hearings
Public Welfare, Department of; children; boarding homes
Merit system; rules; examinations; Federal Social Security Board .
Old age assistance; bonds given by certain recipients
Refugee children; bonds; sureties ....
Reimbursement of town for old age assistance; lease
farm
Settlement; minor; parents
Veteran; derivative settlement ....
Public Works, Department of; limitations on authority to install lights on
highway
Retirement; employee of Soldiers' Home; veteran
Retirement law; teacher; veteran
Teacher; veteran; retiring authority
State Ballot Law Commission; expenditures; appropriation
State employee; receipt of royalties; improper emplo>aiient
Retirement; veteran; continuity of service
State hospital; trustee; interest in contract
State infirmary; inmates' deposit accounts in national bank; direct pay-
ments
State Racing Commission; persons employed by licensees; citizens of the
Commonwealth; definition
State Superintendent of Buildings; limitation of authority over State depart
ments
of municipal poor
P.D. 12. 135
RULES OF PRACTICE
In Interstate Rendition.
Every application to the Governor for a requisition upon the executive authority
of any other State or Territorj^, for the delivery up and return of any offender
who has fied 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 original papers, or certified copies thereof.
The following must appear by the certificate of the district or prosecuting
attorney : —
(a) The full name of the person for whom extradition is asked, together with
the name of the agent proposed, to be properly spelled.
(6) That, in his opinion, the ends of public justice require that the alleged
criminal be brought to this Commonwealth for trial, at the pubhc expense.
(c) That he believes he has sufficient e\'idence to secure the conviction of the
fugitive.
(d) That the person named as agent is a proper person, and that he has no
private interest in the arrest of the fugitive.
(e) If there has been any former application for a requisition for the same person
growing out of the same transaction, it must be so stated, with an explanation of
the reasons for a second request, together with the date of such application, as
near as may be.
(/) If the fugitive is known to be under either civil or criminal arrest in the
State or Territory to which he is alleged to have fled, the fact of such arrest and
the nature of the proceedings on which it is based must be stated.
(g) That the application is not made for the purpose of enforcing the collection
of a debt, or for any private purpose whatever; and that, if the requisition applied
for be granted, the criminal proceedings shall not be used for any of said objects.
(h) The nature of the crime charged, with a reference, when practicable, to
the particular statute defining and punishing the same.
(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 the sole purpose of punishing the accused, and that he does not desire
or expect to use the prosecution for the purpose of collecting a debt, or for any
private purpose, and will not directly or indirectly use the same for any of said
purposes, shall be required, or a sufficient reason given for the absence of such
affidavit.
2. Proof b}'' affidavit of facts and circumstances satisfying the Executive that
the alleged criminal has fled from the justice of the State, and is in the State on
whose Executive the demand is requested to be made, must be given. The fact
that the alleged criminal was in the State where the alleged crime was committed
at the time of the commission thereof, and is found in the State upon which the
requisition was made, shall be sufficient evidence, in the absence of other proof,
that he is a fugitive from justice.
3. If an indictment has been found, certified copies, in duplicate, must accom-
pany the application.
4. If an indictment has not been found by a grand jury, the facts and circum-
stances showing the commission of the crime charged, and that the accused perpe-
trated the same, must be shown by affidavits taken before a magistrate. (A notary
public is not a magistrate within the meaning of the statutes.) It niust also be
shown that a complaint has been made, copies of which must accompanj^ the
136 P.D. 12.
requisition, such complaint to be accompanied by affidavits to the facts consti-
tuting the offence charged by persons having actual knowledge thereof, and that
a warrant has been issued, and duplicate certified copies of the same, together
with the returns thereto, if any, must be furnished upon an application. The
affidavit or affidavits should contain sufficient facts to make out a prima facie case
of guilt, and should not be a reiteration of the form of the complaint nor contain
conclusions of law.
5. The official character of the officer taking the affidavits or depositions, and
of the officer who issued the warrant, must be dul}^ certified.
6. Upon the renewal of an application, — for example, on the ground that
the fugitive has fled to another State, not ha\dng been found in the State on which
the first was granted, — new or certified copies of papers, in conformity with the
above rules, must be furnished.
7. In the case of any person who has been convicted of any crime, and escapes
after conviction, or while serving his sentence, the application may be made by
the jailer, sheriff, or other officer having him in custody, and shall be accom-
panied by certified copies of the indictment or information, record of conviction
and sentence upon which the person is held, with the affidavit of such person
having him in custody, showing such escape, with the circumstances attending
the same.
8. No requisition will be made for the extradition of any fugitive except in
compliance with these rules.
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