(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

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

Public Document No. 12 



Cbe Commontoealtb ot egassactiusetts 



REPORT 



ATTORNEY GENERAL 



Year ending November CiO, 1942 




Public Document No. 12 



Ci)e Commonbiealtii of Q^assacbusetts 



REPORT 



ATTORNEY GENERAL 



Year ending November 30, 1942 




€:bt Commontoealtf) of ^a$mtbmtm 



DEPARTMENT OF THE ATTORNEY GENERAL. 
State House. 



Attorney General, 
ROBERT T. BUSHNELL. 



Assistants. 



James E. Farley. 
Frank G. Volpe. 
Roger Clapp. 
Jacob Lewiton. ^ 
J. Burke Sullivan. ' 
Joseph F. Bacigalupo. 
WiLLLiM F. Hayes. 
William L. Macintosh. 
Frank H. Wright. 
James F. Meagher. ^ 
Sherman W. Saltmarsh. ^ 
Harold E. Magnuson. ^ 



Albert Z. LeMoine, 
Neavton a. Levine. ^ 
Milton A. Westgate. 
H. Wells Kilbourne. ' 
Joseph F. Rezendes. 
Harris J. Booras. 
Sarkis M. Zartarian. ^ 
G. Bruce Robinson. 
Samuel M. Kalemian. 
Philip L. Smith. 
Sidney A. Aisner. * 



Assistants on Special Work assigned to Other State Departments. 

Joseph K. Collins (Boston Elevated Railway), Department of Public Utilities. 

Eunice P. Simm (Boston Elevated Railway), Department of Public Utilities. 

Harry J. Greenblatt, Division of Employment Security. 

Thomas E. Key, Division of Employment Security. ' 

Fernand R. Ducharme, Division of Employment Security. 

Frank F. Walters, Milk Control Board. 

Arthur E. Whittemore, New York, New Haven & Hartford reorganization. 



' Now serving in the armed forcee of the United States. 

2 Died April 19, 1942. 

» Resigned August 3, 1942. 



Director of Division of Collections. 
W. Forbes Robertson. 

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

List Clerk to the Attorney General. 
James J. Kelleher. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES. 
For the Fiscal Year. 



General appropriation for 1942 . . . . 

Balance brought forward from 1941 appropriation 
Appropriation for small claims . . . . 

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



Total 



$149,625 00 

12,497 64 

5,000 00 

11,750 00 

$178,872 64 



Expenditures 



) c. 12, § 3B 



For salary of Attorney General . 

For salaries of assistants and others 

Incidentals 

For small claims 

For claims under G. L. (Ter. Ed.) 

Bank deposits litigations 

Office renovation 

Total expenditures 

Balance 



Financial statement verified as to principal items 



$8,000 00 

130,082 68 

11,000 00 

1,114 08 

10,505 58 

5,983 86 

351 90 

$167,038 10 

$11,834 54 



By 



WALTER S. MORGAN, 

Comptroller. 

James F. Roche. 



i 



January 8, 1943. 



Cf)e Commontoealtf) of Q^assacljusiettiBi 



Department of the Attorney General, 
Boston, January 20, 1943. 

To the Honorable Senate and House of Representatives. 

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

Tlie cases requiring the attention of this Department during the fiscal year end- 
ing November 30, 1942, totaling 10,866, 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 
Emplojinent Security ......... 

All other cases not enumerated above, which include suits to require the fiMng 
of returns by corporations and individuals and the collection of money 
due the Commonwealth ......... 



737 

77 
80 

160 
2 

28 
84 

738 
9 

607 
15 



148 

2,894 

226 

1,785 



3,276 



I omit a heading entitled "Details of Capital Cases," which has been included in 
the reports of Attorneys General up to the present time. I assume that this sec- 
tion, consuming several pages in the report of the Attorney General, is a relic of 
the former custom under which the Attorney General participated in the trial of 
all capital cases. For more than twenty years, at least, this custom has been non- 
existent. In modern times the great bulk of criminal cases, including capital crimes, 
are tried and disposed of by the district attorneys. Inclusion of cases requiring the 
attention of the Department of the Attorney General, therefore, of "indictments 
for murder, capital cases," and a separate section of the report entitled "Details of 
Capital Cases" appears to me to be misleading and to serve no useful purpose. 

For all but a week of the period covered by this report the United States has been 
engaged in total war, upon success in which the existence of democratic government 
depends. State governments have been called upon to meet conditions without 



6 P.D. 12. 

precedent in their history. Since the declaration of war in December, 1941, a sus- 
tained effort has been made to organize the Department of the Attorney General in 
such a manner that, despite losses of trained personnel, the work of the Department 
could be carried on with as high a degree of efficiency and continuity as possible. 
Work believed to be of importance to the war effort in any of the many ways by 
which the government of the Commonwealth can contribute to the sum total of the 
united effort of the American people in this direction has taken precedence over all 
routine matters. 

The extent to which the Department of the Attorney General has met the 
extraordinary demands made upon it as a result of the war, and at the same 
time efficiently conducted what might be termed the normal legal business of 
the Commonwealth, has been due to the loyalty and devotion to the interests 
of the Commonwealth of the members of the staff, including those who have 
continuously remained with the Department, those serving in the armed forces 
of the United States, and those who have acted as replacements, often on short 
notice. Because of the complexities of particular cases which had been in their 
charge prior to entry into the service, it has not infrequently been necessary 
to call upon men in the service to enable their successors as quickly as possible to 
be in a position to protect the interests of the Commonwealth. This assistance has 
been rendered cheerfully and readily under difficult and arduous circumstances 
and often at long distances. I wish particularly to record appreciation in this con- 
nection to Assistant Attorney General J. Burke Sullivan, now captain in the United 
States Army Air Corps, and Assistant Attorneys General Jacob Leuiton and Harold 
E. Magnuson, now lieutenants in the United States Navy. Prior to their entry 
into active service, these men occupied key positions in the department. Even 
while engaged in arduous courses of training beyond the borders of the Common- 
wealth, they have retained their interest in the legal affairs of the Commonwealth, 
and have, at the sacrifice of hours set aside for rest and recreation from new and 
strenuous labors, assisted their successors in familiarizing themselves with unfinished 
work. 

Following is a discussion of various aspects of the work of the Department which 
I believe may be of interest to the General Court at this time. 

Wartime Emergency Powers of Executive Department. 

In October, 1941, toward the close of its last regular session, the General Court 
enacted chapter 719 of the Acts of 1941, entitled "An Act to provide for the safety 
of the Commonwealth in time of military emergency." The treacherous attack at 
Pearl Harbor occurred on December 7, 1941, a few weeks after the adjournment of 
that session. On December 29, 1941, His Excellency the Governor, with the advice 
and consent of the Council, proclaimed the existence of a state of emergency under 
the provisions of chapter 719 of the Acts of 1941. 

Prior to the convening of the special session of the General Court on January 26, , 
1942, this Department had engaged in a survey of the legal machinery of the Com- 
monwealth with reference to its adaptability to meet a sudden emergency which 
might confront it in the event of total war. Heads of various departments, divi- 
sions, boards and commissions of the Commonwealth were consulted with reference 
to their particular problems and many proposals for legislation were received and 
considered. The willing co-operation and the manner in which all officers of the 



P.D. 12. 7 

State government and other citizens of the Commonwealth gave freely of their 
time and efforts in the preliminary survey made it possible for the Department of 
the Attorney General to prepare a legislative program for presentation to the Gen- 
eral Court \vhe!i it convened in special session. Messrs. Fernald Hutchins, counsel 
to the Senate, and his assistant, Thomas R. Bateman, Henry D. Wiggin, counsel 
to the House of Representatives, and his assistant, Louis K. McNally, Arthur D. 
Hill, Esq., chairman of the Special Committee on Public Safety of the Boston Bar 
Association, Frank W. Grinnell, Esq., of the Massachusetts Bar Association, as 
well as othei" members of the Bar, Comptroller Walter S. Morgan and Budget Com- 
missioner Cliarles W. Greenough were particularly generous with their time, energy 
and ability when called upon for critical discussions and suggestions in considering 
the legislative program. 

Among measures enacted at the special session was chapter 13 of the Acts of 
1942, entitled "An Act to provide for the safety of the Commonwealth during the 
existing state of war." This important enactment, together with chapter 719 of 
the Acts of 1941, expressly confers upon the Chief Executive vast powers over per- 
sons and property within the Commonwealth. In effect, these are powers conferred 
upon the Chief Executive to govern by order or decree, subject to the limitations 
imposed by the General Court. In normal times such powers would be utterly in- 
consistent with a democratic form of government. In the light of experiences of 
other countries during the present war, however, it was believed that such powers 
would enable the State government to meet promptly and effectively at least some 
of the foreseeable emergencies of total war. 

After the enactment of chapter 13, this Department suggested certain rules of 
procedure with reference to consideration of requests for the exercise of these extraor- 
dinary powers. This procedure, designed to facilitate the promulgation of Execu- 
tive Orders when needed and at the same time to submit all requests to the most 
thorough and searching legal scrutiny that circumstances would permit, has been 
generally followed. Requests for Executive Orders initiated by governmental 
departments are transmitted to the Office of the Governor in duplicate, thus per- 
mitting the Chief Executive to forward one copy immediately to the Attorney 
General for his advice and opinion. Department heads have been instructed to 
include in such requests (o) a statement of the results sought to be achieved by the 
Order; (b) a full statement of the facts which brought about the request for the 
Order; (c) as complete references as possible to existing laws, rules and regulations 
pertinent to the subject matter of the request; (d) a statement of reasons why 
existing machinery is inadequate to effect the result sought by the Order; and (e) 
suggestions by the Department head for specific limitations to prevent promulga- 
tion of Executive Orders in forms so broad that they might affect situations not 
intended to be covered. 

Upon receipt of a copy of the request this Department immediately begins a study 
of the factual situation and the law. The Department endeavors to investigate 
facts on which requests for each Executive Order are predicated and carefully to 
study the relation of the proposed Executive Order to provisions of existing law. 
In each case effort is made to keep disruption of the normal legal machinery of the 
Commonwealth down to a minimum, to provide safeguards against arbitrary or 
capricious action when authority is delegated, and to confine the provisions of the 
Order to the matters intended to be dealt with. 



8 P.D. 12. 

Before an Order reaches the stage of final draft, it is subjected in this Department 
particularly to the test of whether it will expedite the war effort (a) by providing 
for positive action; (6) by removing legal impediments to action necessary to the 
war effort; (c) by co-operation with the Federal Government or the government of 
another state in a manner not provided for by existing law; and (d) by preserving 
the principles of local authority, home rule and state sovereignty in so far as it is 
possible so to do consistently with the object believed to be necessary to the success 
of the war effort. When doubts arise as to the legality of a proposed Order found 
necessary to the war effort or any part thereof, such doubts are resolved in favor of 
taking affirmative action necessary or expedient to the prosecution of the war. 
Technical legal considerations are not permitted to outweigh the paramount object 
of a successful war effort. 

Up to and including November 30, 1942, forty Executive Orders have been pre- 
pared by this Department and issued by His Excellency the Governor. Requests 
for more than twice this number of orders for the extraordinary use of the executive 
power have been rejected after study and advice by the Attorney General. 

In my judgment the machinery above outlined has been successful in enabHng 
the Commonwealth to meet expeditiously some of the rapidly changing conditions 
presented by total war. I believe that Executive Orders have been confined to sub- 
jects with which they were intended to deal and that those promulgated to date 
constitute a body of wartime laws which have reasonably been kept from becom- 
ing a part of the organic law of the Commonwealth and which, therefore, may be 
readily discarded when the emergency is over. His Excellency Governor Salton- 
stall, as Chief Executive, has exhibited a scrupulous desire to confine the exercise 
of his extraordinary powers to the purpose for which they were intended. Never- 
theless, the success of the machinery up to the present time should not obscure the 
fact that it is essentially dangerous, should be guarded against undue extension, 
and should be terminated at the earliest possible moment after the war. 

The thought that I have in mind has been well expressed by Mr. Justice Jackson 
of the Supreme Court of the United States : 

"Impersonal and inevitable forces bring to any war many trends which history 
teaches us to fear. The extent to which our institutions survive the impact of 
war depends on the continuity of our tradition in the minds of the people, even 
whQe we temporarily depart from it in practice." — (Address at Annual Banquet 
of the State Bar Association of Texas, July 3, 1942.) 



Other Legal Business conducted by the Department of the Attorney 
General Directly relating to the War Effort, 

Since the declaration of war, the Department has been continuously called upon 
for assistance and advice in connection with the application of the resources of 
the Commonwealth in aid of the national war effort in many fields other than the 
field of executive orders. The general policy followed has been to attempt to place 
the Commonwealth in a position in which it might go "all out" in the national 
war effort, and at the same time attempt to preserve and protect its legal rights 
as a sovereign state, so that these rights might be asserted once again after the 
war is over. The following instances illustrate the nature of this phase of the 
Department's work which continues \\ithout interruption. 



P.D. 12. 



Federal Government Leases for Various Purposes connected with the 

War. 

These include use of land for airports, drill grounds, military railroads, military 
highways, the use of wharves, forest fire observation towers, existing railroad 
facilities, the use of armories for barracks and storage, and the use of other state 
buildings for manufacturing and Coast Guard bases. 

Negotiations were completed whereby the Federal Government was granted 
rights of entry for the erection of barracks, the storage of ammunition, and for 
conducting anti-aircraft practice. 

Applications of the Navy for the erection of structures in tidewater were heard 
and recommendations made in connection with the issuance of necessary permits. 

Difficulties arising from the existence of pubhc highways in the area taken for 
Westover Field were adjusted by negotiations. 

Assistance and advice were given in connection with the abandonment of the 
site for radio beacons at the Army Base and the securing of a new location for 
such beacons. This involved a taking of land and settlement of the claim arising 
out of such taking. 

At the request of military authorities, assistance was rendered by means of an 
Executive Order in the taking of land and relocation of a bridge on Weymouth 
Back River in order to make the naval ammunition dump at Hingham more 
accessible. 

Study was undertaken and recommendation made for the protection of military 
property at Cape Cod Canal and eventually, by means of an Executive Order, a 
road was closed in accordance with such recommendations. 

Assistance was rendered to the War Production Board in connection with the 
availability of abandoned metal bridges for scrap, and further investigations of 
law and recommendations were made regarding scrap in abandoned hulks in Boston 
Harbor. 

Much time and study were given and many conferences were held with Coast 
Guard, city and state officials relative to the removal of dilapidated piers and 
abandoned hulks from Boston Harbor, 

Co-operation was extended to various officials to prevent the deposit of debris 
in Boston Harbor which might create a dangerous condition, regarded by the 
Coast Guard as a possible fire menace. 

The development of a large shipbuilding company was facilitated by assistance 
rendered through the Department of Public Works and clarification of the status 
of permits for structure in tidewater. 

Conference with the Federal officials and the Department of PubUc Works re- 
sulted in securing to the Commonwealth air rights in that area surrounding Bed- 
ford Airport which had been taken by the Federal Government. 

Numerous conferences have been held with civil aeronautics authorities regard- 
ing the law establishing approach zones at the Boston Airport. Those zones are 
regarded as vital to the operation of the Airport, now under the control of the 
Army. Litigation involving the interpretation of the statute applicable to this 
matter was conducted in the Superior Court where its validity was upheld and 
the case is now pending before the Supreme Judicial Court. 

An interesting matter now pending in this Department concerns the develop- 



10 P.D. 12. 

ment of mineral resources in Massachusetts. A substantial deposit of mica was 
discovered in the Chester State Forest. Mica is heat-resistant and indestructible, 
and is used in radios and airplane spark plugs. In consequence, it is an important 
mineral at the present time. The Federal Government is anxious that this avail- 
able supply of mica be developed as speedily as possible and this Department is 
co-operating fully to that end. 

On several occasions, negotiations have been completed by which leases with 
the Federal Government have been terminated when no longer of benefit either 
to the Commonwealth or to the Federal Government. 

Assistance has been rendered also in instances where the Federal Government 
has neglected to exercise its option to renew leases within times stipulated, despite 
which the renewal of such leases was effectuated. 

Compensation to the Commonwealth for the use of the Massachusetts Maritime 
Academy quarters as barracks for the Coast Guard presented a somewhat difficult 
question, as the Commonwealth was in possession of the quarters occupied by the 
academy under a lease and not as o^\'ner. Means of compensation were eventu- 
ally worked out and the money paid to the Commonwealth. 

Thirty cases in the District Court of the United States involving seizures of land 
by the Federal Government for purposes connected with the war were carefully 
investigated and studied. Property rights of the Commonwealth were found to be 
involved in eleven of these cases. Settlements have been completed and payment 
made to the Commonwealth for damages sustained in two cases. In nine cases 
negotiations for settlement are in progress. One case involves a new claim by 
Federal authorities not advanced in previous cases, to the effect that tidelands 
owned by the Commonwealth are subject to the Federal Government's paramount 
easement for purposes of navigation. Previous to this case the Federal Govern- 
ment had recognized the title of the Commonwealth to land between low water 
mark and the harbor line, and the right to compensation for land so taken was 
recognized. In a case of the taking of land in Massachusetts above the low water 
mark from a private owner, the claim is now advanced by the Federal Government 
that no compensation is due to the Commonwealth for the tidelands because of the 
easement for navigation purposes. An answer has been filed and the title of the 
Commonwealth as a sovereign state to tidelands has been put in issue. 

Legislative Order relative to Meal Tax Law. 

On January 29, 1942, the House of Representatives passed an order adopted in 
concurrence by the Senate on January 31, 1942, relative to interpretations of chap- 
ter 64B of the General Laws, inserted by chapter 729 of the Acts of 1941, by the 
Commissioner of Corporations and Taxation. 

The preamble to this order recites that unnecessary confusion and differences of 
opinion have arisen by reason of interpretations of chapter 64B by the Commis- 
sioner of Corporations and Taxation and by published statements purporting to be 
interpretations of said chapter 64B ; that such confusion and differences of opinion 
may result in injustices and needless and costly litigation; that the nature of said 
tax makes refunds to the taxpayers practically impossible in the event of illegal 
collection thereof; and that the intent of the General Court in the passage of said 
legislation was to tax only each and every separate meal, the charge for which is 
one dollar or more, at the rate of five per cent thereon, and not to confer upon the 



P.D. 12. 11 

Commissioner of Corporations and Taxation any broader rule-making or regulatory 
power than is specifically granted therein; therefore be it 

"Ordered, That the said Commissioner of Corporations and Taxation consult 
the Attorney General forthwith with respect to the interpretation of said chapter 
sixty-four B, and issue such rules and regulations as may be authorized by said 
chapter sixty-four B, and make interpretations thereof, only with the prior approval 
of the Attorney General and bearing in mind the intent of the General Court as 
above stated." 

The Attorney General has no desire to intrude upon the administration of another 
department nor to engage in a public controversy with other government officials. 
In accordance, however, with what he believed to be the spirit and intent of the 
Legislature in passing the order above quoted, the Attorney General has attempted, 
in so far as possible, to prevent injustices referred to in the order. 

Some success has been achieved in cases brought to the attention of the Attorney 
General — many of them by direct complaints to this Department following pas- 
sage of the order. I have no means of knowing how many law-abiding citizens of 
small means, honestly desiring to comply with all provisions of the law, have ac- 
cepted erroneous interpretations, rulings and demands for illegal payments without 
protest. 

On February 2, 1942, I communicated with the Commissioner of Corporations 
and Taxation, calling the order to his attention and requesting him to furnish me 
forthwith with — 

"(1) Copies of all rules and regulations which you have issued to date under 
this act. 

" (2) If no formal rules or regulations have been issued by you, copies of any 
and all instructions relative to the enforcement of this act given to — 

" (a) Agents and employees of your department. 

" {b) Taxpayers. 

" (3) Copies of any and all interpretations of this act made by you. 

"If you have made no official interpretations of the act not included in the 
scope of requests (1) and (2), kindly so inform me. If you have made public state- 
ments which might be construed by taxpayers or prospective taxpayers as inter- 
pretations of the act by the Commissioner, kindly furnish me with copies thereof. 

" (4) Copies of drafts of any regulations, rules, instructions or interpretations 
which you propose to promulgate or make in regard to this act. 

" Please do not consider the above specific requests as restrictions on information 
desired by me. This request is intended to be one for complete information from 
the Commissioner of Corporations and Taxation to enable the Attorney General 
to effect the intent of the General Court as expressed in this Order. 

"In view of the general confusion and uncertainty in the minds of the tax- 
payers, I consider that this matter is urgent, and would request that you give it 
your immediate attention. Both Assistant Attorney General Magnuson and I 
have been constantly available since the passage of this Order on Saturday, but at 
this writing have received no indication from your department that you are aware 
of its terms." 

I received the following communication in reply: 

"February 2, 1942. 

"Hon. Robert T. Bushnell, Attorney General, State House, Boston. 

"Dear Mr. Bushnell: 

"This is to acknowledge your letter of February 2, 1942, relative to Chapter 
64B of the General Laws. 



12 P.D. 12. 

"In view of the fact that such an order as you call to my attention in your 
letter has so far as I know never been passed by the General Court heretofore, it 
is respectfully requested that }yu ad\ase me as to the full force and effect of this 
order and as to what extent if at all it is constitutionally binding upon me as 
Commissioner of Corporations and Taxation. 

Respectfully yours, 

(signed) Henry F. Long, 
Commissioner of Corporations and Taxation." 

The following reply was sent to the Commissioner: 

"February 3, 1942. 

"Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

"Dear Sir: — 

"Re: Five Per Cent Meal Tax. 

"I am surprised at the nature of your reply to my request of yesterday for in- 
formation in regard to the above matter. Referring to the Legislative Order 
specifically directing you to take certain steps to eliminate existing confusion in 
regard to this tax, you, in effect, request an opinion 'as to what extent if at all 
it is constitutionally binding' upon you. I dislike to believe that you are de- 
liberately attempting by such a reply to avoid compliance with the Order. 

"Whatever its technical, legal effect may be, this Order voted by both branches 
of the General Court, is a clear expression of intent by them to remedy, if pos- 
sible, 'confusion and differences of opinion' which if allowed to continue may re- 
sult in injustice. It contains specific directions to you relative to the issuance of 
rules, regulations and interpretations of General Laws (Ter. Ed.), chapter 64B. 

"I am not now going to consider the question as to whether this 'Order' is 
technically any less legally binding upon you than a resolve or an act would be. 
It is perfectly clear to me that by its action the Legislature desired to make an 
attempt to remedy an intolerable situation with regard to the meal tax. 

"I expect you to comply with the Legislative Order without further delay. As 
indicated in my letter of February 2, my department is, and has been since the 
passage of the Order, ready to do its part in such compHance. I hope that you 
win forward the information requested at once. It seems to me that in these 
times it is more miportant than ever for govermnental departments to conduct 
the public business harmoniously and with complete co-operation. 

Very truly yours, 

Robert T. Bushnell, 

Attorney General." 

On February 6, 1942, I approved three interpretations submitted to me by the 
Commissioner and disapproved three others. The three approved interpretations 
were as follows: 

"#1 — A 5% excise tax is to be paid on each and every separate meal for which 
there is charged a total of $1.00 or more. Said 5^, tax is to be computed upon the 
total charges for each meal and not upon the aggregate charges for two or more 
meals. 

"#2 — In determining the total charges for a meal there shall be included cover, 
minimmn, admission and all similar charges and charges for hquor ser\^ed in the 
course of the meal. 

"#3 — The charges for a meal shall not include such items as cigarettes, cigars 
and tobacco, for which the purchaser of the individual meal is charged separately." 

No other rulings or interpretations have been submitted to me since that date. 

Following promulgation of these interpretations, complaints indicating that 

illegal exactions under this act were continuing were received by this Department. 



P.D. 12. 13 

Complaints of the nature referred to in a communication under date of March 21, 
1942, from the Attorney General to the Commissioner have been received by this 
Department up to the present time. They have been less numerous in the latter 
part of the year than at that date, and the Commissioner has expressed complete 
willingness to adjust them when brought to his attention. 

Obviously, a condition which tends to undermine confidence in the good faith 
of this government should not pass unnoticed. Large taxpayers and hotel owners, 
represented by counsel, are able to prevent illegal exactions. Proprietors of small 
businesses, many of them today without help, with their young people in the armed 
forces, are the victims of overzealous attempts to collect revenue for the govern- 
ment beyond the intent of the Legislature in writing a tax law. 

The following is a summary of cases called to my attention and referred to in 
my letter of March 21, 1942, to the Commissioner and which, in my opinion, should 
be called to the attention of the members of the Legislature considering the adminis- 
tration of the tax laws of the Commonwealth. 

"L 

" Injustices caused by the extension of the scope of the act in the face of the clear terms 
of ruling fl that the tax applies only to single meals 'for which there is charged 
a total of $1 .00 or more . . . and not upon the aggregate charges for two or more 
meals' 

"A. Meal tickets. Proprietors of small lunchrooms sell meal tickets for — by 
way of illustration — $4.75, which entitles the purchaser of the tickets to $5.00 
worth of meals. Purchasers of these tickets seldom, if ever, buy single meals for 
which a charge of $1.00 or more is made. Without regard to this fact, your de- 
partment has consistently advised these small proprietors that the five per cent 
meal tax must be paid on the face value of these tickets. This advice has been 
given and payment insisted upon by your department, both before and after the 
promulgation of ruling #1 on February 6 that the tax applies only to 'each and 
every separate meal for which there is charged a total of $1.00 or more . . . and 
not upon the aggregate charges for two or more meals.' Since the adoption of 
ruling #1 your department has attempted to justify this illegahty by stating that 
the tickets are still taxable because the Attorney General has not yet insisted upon 
a specific ruUng in regard to them. If the situation presented by these meal tickets 
were approached with an attitude of fairness to persons sought to be taxed and 
with a desire to carry out the intent of the Legislature, it seems clear that no rul- 
ing in addition to ruling #1 should be necessary. If you wish, however, you may 
submit to me a ruling on this subject. In any event, the practice of taxing the 
tickets when used as payment for numbers of meals, for none of which a charge 
of $1.00 or more is made, is illegal and improper and must be stopped. 

"B. Meals served to groups — schools, churches, lodges, et cetera — for ivhich each 
individual is charged less than SI .00, but for ivhich payment is made in a lump sum. 
Your department, apparently, has consistently informed both the caterers and 
the groups affected, even after the promulgation of ruling #1, that a five per cent 
tax is to be collected on the aggregate charge for these meals. 

"Here, again, it seems to me that no other ruling than #1, specifically providing 
that the tax applies only to — 

'each and every separate meal for which there is charged a total of $1.00 or more . . . and 
not upon the aggregate charges for two or more meals,' 

would be required for the guidance of any tax official approaching the situation 
in a spirit of fairness and with a desire to carry out the plain intent of the Legisla- 
ture. However, if you believe a ruUng on the specific point is necessary to enforce 
compliance with the provisions of the act, I shall be glad to consider for approval 



14 P.D. 12. 

any ruling you may care to submit. Here, again, the important thing is to stop 
the practice complained of — and to stop it at once. 

"C. Meals served by boarding or lodging houses, charged for at weekly or other 
periodic rates, representing charges of much less than $1 .00 for each meal. The ad- 
ministration of the meal tax law in this respect has been viciously unjust, unless 
the reports referred to the Attorney General's office are entirely without founda- 
tion. Instances have been brought to my attention in which your department 
has insisted that a tax is due when the total amount charged for room and board 
for an entire week has been $6, $7, $9.50 or .|10. 

"Repeating the language of ruling #1 that the tax applies to — 

^each and every separate meal for which there is charged a total of $1.00 or more . . . and 
not upon the aggregate charges for two or more meals ' — 

it seems too clear for argument that in such cases the imposition of the tax cannot 
be justified. 

"Ruling #1 was promulgated on February 6, 1942. The following statement is 
made in a letter to me under date of March 2, 1942: 

'The Springfield office of the State Tax Department advises me that if the money 
charged for food is collected weekly, as has been the custom prior to this year, it is 
taxable. This does not seem fair or reasonable to me inasmuch as no meal costs a 
doUar. 

' In my case breakfast is thirtj'-five cents, dinner seventy-five cents but when taken 
by the week is figured seven dollars, or one dollar per day. This is certainly not in the 
luxury class. Yet because, to simplify bookkeeping, we collect by the week, these 
people must pay this tax. . . . 

'Do you believe that the people who made and passed this law intended to impose 
this tax on boarding houses simply because meals are paid for by the week? ' 

"With this letter, the writer forwarded to me a copy of an answer from your 
department to a letter from her in which she asked you the same questions. Here 
is a substantial portion of that reply: 

'The Income Tax Office in Springfield has ad\dsed you correctly as to what our in- 
terpretation has been under the law as it was passed. I note you say that you can col- 
lect for each meal and tliis is probably true.' 

It seems to me that frankness and honesty require that this person should have 
been informed of ruling #1 and that imder it the tax did not apply to her. The 
reply of your department was evasive and deceptive. It allowed her to continue 
in the mistaken belief that the tax applied, but avoided making this misrepresenta- 
tion outright. 

"Again, I quote from a tj'pical letter received after ruling #1 went into effect: 

' I telephoned Mr. Long's office tliis morning to find out if our boarders had to pay a 
meal tax. I explained to a IVIr. . . . that we charged nine dollars & fifty cents for board 
and room. Seven dollars being for their meals for a week. Mr. . . . informed me 
that as the law now stands, they must pay. . . . 

' It seems to me there is something wrong about tliis tax. We do not serve separate 
meals and never charge one dollar for a single meal, which is what I thought that tax 
would apply to.' 

"The above quotations are but typical examples of many received by me from 
small boarding-house keepers. Many of the writers are widows, without other means 
of support. Many of them, I judge from the tenor of the letters, have paid the 
tax under threats by your department. In many instances, the tax is passed along 
to lodgers of equally small means. 

"I am aware, of course, that the Legislature bestowed upon you broad powers — 



P.D. 12. 15 

'to prescribe the method of determining the portion of the entire charge which is ap- 
pUcable to meals in the event that such entire charge is in part for meals and in part 
for lodging or any other item of service.' 

Under fundamental principles of law, however, no powers are given you under 
this statute to make findings which are unreasonable, capricious or outrageous. 
Any finding that $1 or more is charged for single meals when the total charges for 
board and room for a week amount to no more than $6, $7, $9 or $10 is untenable 
on its face. 

"Proper administration requires apportionment of the gross weekl.y charge as 
between the charge for room and that for meals. Once this apportionment is made, 
it must be determined whether the amount apportioned for food is large enough to 
justify a conclusion that a charge of $1 or more is being made for any one meal. 
Even then, it should be obvious that the tax \vould not be payable on the entii'e 
food charge, but only on that portion covering single meals for which a charge of 
$1 or more is made. 

"Here, again, formal rulings, in addition to ruling #1, should not be necessary 
if the administration of the act is approached with these obviously correct prin- 
ciples in mind and with a desire to carry out the intent of the Legislature. 

"In any event, the illegal practices of your department with respect to lodging- 
houses and boarding houses, pointed out herein, should be tenninated forthwith. 

"II. 

" Unauthorized extensions of the statutory requirement of registration so as to include 
persons never intended by the Legislature to he registered. 
"Section 3 of chapter 64B, which we are now considering, requires that — 

' Every taxpayer shall register with the commissioner and pay to him the sum of one dol- 
lar, upon receipt of which the commissioner shall issue a numbered identification certifi- 
cate . . .' 

"Section 1 of the act defines 'taxpayer' as 'any person making a taxable charge,' 
i.e., a charge of $1 or more for a meal. 

"Apparently, it has been your practice to compel all persons selling food to 
register, irrespective of whether they have ever made a charge of $1 for a single 
meal or not, whether they were likely to make such a charge in the future, or even 
whether the business conducted by them was of such a nature as to make it im- 
possible for them to charge a total of $1 or more for a single meal. This practice 
is clearly shown by correspondence between you, members of your department 
and persons making inquiry. 

"For example, a widow acting as a housemother at a dormitory for students of 
a business school in one of our cities stated her case to be that she was — 

'feeding eleven boys, who pay $6.00 a week for breakfast, a lunch which they carry to 
school and dinner at night. If they are away over a week end they take out for meals 
away. Does this come under the law to pay 5% tax on what they pay me? I have a 
state license as I was told I had to have one, although I do not deal with the public, 
only as I feed these eleven boys who Uve here at the dormitory.' 

"It is perfectly clear on the facts stated that this lady was neither subject to 
the tax nor obliged to register or to file a return, yet she received a form letter 
from you which, in substance, threatened her with a penalty of $5 per day for 
each day of delay in filing her return. Your letter closed with the sentence: 

' A return and payment as required by General Laws, chapter 64B, is hereby demanded 
of you.' 

"As far as I can ascertain, you apparently claim that all persons serving meals, 
or, indeed, dealing in anj^ substance that can be eaten, must register under this 
act and pay the registration fee. You or your agents have insisted upon and 



16 P.D. 12. 

brought about the registration of hundreds of small fish and chip shops, drug 
stores, ice cream parlors, variety stores, hot dog stands, and even pool rooms — 
and other small businesses that never have served and never contemplated the 
serving of meals for which a charge of $1 or more is made. You are reported to 
have stated, in substance, that you intend to require the registration of as many 
people as possible, whether they are covered by the act or not, as you feel that 
such a policy may be advantageous for some future purposes not yet disclosed 
by you. If this actually is your poHcy, it is improper. 

"An examination of the correspondence of your department with bewildered 
persons seeking advice and information discloses an apparent disregard of the 
fact that your department is administering an act of the Legislature and that 
you have no right to extend the statutory requirements to conform to ideas of 
your own as to what the Legislature should have required. A few examples will 
make my meaning clear: 

"An inquiry was made as to whether a school cafeteria should be registered 
under the terms of the act. It was stated that the only meals served therein, 
which are lunches, average about 150 and never go over 25^. 'We try to keep 
the cost of the students' lunches down to a minimum, and if we were required to 
provide these numerous checks for nickels and dimes, the cost would not be in- 
considerable.' Obviously, this cafeteria is not subject to registration under any 
reasonable interpretation of the act. However, your department advised the 
writer of that letter that registration is required, told him that he need give no 
further concern to the use of the checks, and made the astounding statement: 

' The license is really so that we may have a record of all these places against the day 
when there may he a change in circumstances which might bring in other groups.' (Italics 
mine.) 

"Again, a small druggist wrote: 

'The only food that we sell is an occasional hot chocolate and small five-cent pack- 
ages of crackers. Do I have to file an application and keep sales records? If so, can 
I escape this by discontinuing either the hot chocolate or crackers or both?' 

Your reply to this citizen was, in substance: 

'You nevertheless are required to be licensed.' 

"Again, you wrote to a citizen who operates a bakery, implying that he must 
register under the act on the ground that — 

'All persons who serve meals, regardless of cost and regardless of whether they are 
merely sandwiches or full-course dinners, must be licensed.' 

"Another operator of a small concession wrote that she sells such things as 
'cigarettes, tonic, candy, milk and ready-made sandwiches to sell for ten and fif- 
teen cents. That is the extent of the amount of food that I sell. I do not serve 
meals of any type.' She, therefore, would 'like to know whether I am subject to 
the above-mentioned law.' 

"In response to this inquiry and despite the clear terms of the act of the Legis- 
lature, the Commissioner of Corporations replied to this inquiry: 

' It will be necessary foi- you to file the enclosed application blank and forward it to 
us with the $1 filing fee,' et cetera. 

"A similar reply was given by you to another person, who wrote: 

' I do not sell regular meals. All I sell does not go over the price of lOfi. I sell tonic 
5^, sandwiches 10^, hot dogs 6^, candy Ic^ and 5^. So this puts me in doubt as to whether 
I should fill out the application that was sent me. Will you please let me know whether 
I should fill it out or not.' 



P.D. 12. 17 

"The same advice and insistence upon registration was given to a dealer who 
stated : 

'We do not serve meals. The only thing that we sell are pickled eggs or pickled 
pig's feet to a customer now and then.' 

"Another wrote: 

'I have a drug store, but sell no meals and never have and never intend to. I sell 
only milk shakes and ice cream. Do I have to register under the act? I sell no sand- 
wiches, not even crackers with the milk shakes.' 

"Your department replied promptly: 

' Milk shakes and ice cream are food. Therefore it is necessary that you apply.' 

"As you frequently point out in your correspondence, the registration fee is 
small and the payment of SI is not 'very distressing' even for small business 
men and women. Their troubles, however, have just begun with the illegal re- 
quirement of registration. Once such persons have registered, they are apparently 
compelled by 3'ou to file returns, reporting the aggregate number of meals served 
by them and the total of such meals, regardless of the taxability of the meals. 
You display complete indifference to the hardships thereb}' created and to the 
fact that the energies of our citizens should be diverted as little as possible in 
these times to unnecessary, unproductive, red-tape demands by governmental 
bureaus. 

"Again, I quote from tj^pical letters from the people themselves as the best 
illustration of what I seek to prevent. These people never should have been com- 
pelled to register in the first place. 

' My establishment is a sandwich and light lunch shop where the meals very rarely 
are over 50ff and average between 25^ and 35^.' 

' Since the first of this year I have been making out slips for each sale and find that 
this is only an added expense in order to send in a form at the end of each month.' 

'As my business is very small this added expense is felt and as far as I can see accom- 
plishes nothing.' 

"In a similar vein is the following: 

'Ours is a soda, candy and luncheonette business. We never serve any meal charg- 
ing anywhere near a dollar, yet our checks last month ran over several thousand . . .' 

' It doesn't seem as though it should be necessary for an operator to have to go through 
several thousand checks each month and report how many meals he served when it has 
no bearing on the tax itself. My average meals are SOi to 40«i.* 

' These darjs lohen it is so hard to get help and the small operator has to do so much of the 
work himself, it is really difficult to keep tip the book work and small details. ... It should 
be fairly easy to catch up with those trying to avoid paying the tax without requiring 
every owner to spend hours and hours checking something which doesn't help the tax 
situation.' 

"The foregoing quotations illustrate the absurdity and injustice of the manner 
in which the provisions for registration have l>een interpreted by you and your 
department. 

"I suggest that all persons who have been illegally compelled by your depart- 
ment to register should at least be relieved immediately of the burden placed upon 
them of additional and unnecessary bookkeeping. This can be accomplished by 
your sending notices to them at once that they are not required further to fill out 
the returns sent by you, except in so far as they may serve individual meals for 
which a charge of $1 or more is made. I request that this action be taken at once 
and that you notify me when you have done so. 



18 P.D. 12. 

"I note in the correspondence references apparently intending to carry a thinly 
veiled charge that any person who complains of what he beheves to be illegal 
action or interpretation of the act by your department must be opposed to the 
policy of old-age assistance. So far as I can ascertain, there is absolutely no basis 
for such a charge. On the contrary, a person who is sincerely in favor of such a 
humanitarian program would be most anxious to oppose illegal practices with 
respect to its administration, lest public indignation against the illegal adminis- 
trative practices should in time produce a wave of opposition to the program itself. 

"The great mass of citizens in this Commonwealth is in favor of old-age assist- 
ance, and the Commonwealth is definiteh' committed to such a program. It is 
solely within the province of the Legislature to prescribe how the necessary fund 
shall be raised. If the present statutes, as enacted by the General Court, do not 
pro^dde adequate funds, that situation will haA-e to be dealt with by the Legisla- 
ture. It is not within the province of the Tax Collector to supplement the author- 
ized revenues with illegal exactions imposed by him. 

"I hope that upon reflection you will realize the uru-easonableness and the in- 
justice of the course which has been pursued by your department in the adminis- 
tration of this statute, and that you will take effective action at once to correct 
the excesses and unwarranted interpretations to which I have directed j'our 
attention. 

"I request that you inform me without delay as to what steps you have taken in 
accordance herewith." 

The above summary was made in the communication to the Commissioner of 
Corporations and Taxation by the Attorney General on March 21, 1942. The Com- 
missioner replied on March 23, 1942, that "... Most of the matters to which you 
call attention have long since been brought into conformity with your thought. 
There are some other suggestions you make which it seems to me can be put into 
effect and to the extent possible, please be advised they will be." 

Complaints received by this Department subsequent to the above letter from 
the Commissioner and as late as December 26, 1942, indicate that the situation 
has not been wholly corrected, and that the intent of the Legislature, as expressed 
in the legislative order of January, 1942, has not been fully complied with. In my 
opinion, further study of this subject by the Legislature is desirable. 

Payments of Bank Deposits into Commonwealth Treasury and to 

Rightful Owners. 

At its last regular session in 1941, the General Court appropriated fifteen thou- 
sand dollars to cover expenses for proceedings which I considered it advisable to 
undertake relative to bank deposits which had remained unclaimed and unused for 
periods of twenty and thirty years. 

These proceedings were brought under provisions of the General Laws, chapter 
168, sections 41 and 42. So far as I am able to ascertain, this was the first occasion 
on which the Commonwealth had availed itself of the provisions of law under both 
sections on a state- wide scale. 

To date, a total of $276,594.32 has been paid into the treasury of the Common- 
wealth as a result of this activity and $38,858.48 to persons giving satisfactory proof 
of rightful ownership. A total of $315,452.80 has thus been removed from unused 
accounts and turned over to the Commonwealth and rightful owners. 

The total expenditures from the foregoing appropriation up to and including 
November 30, 1942, were $8,967.33. Of this expenditure, $5,654.74 was spent for 
required advertising of the accounts. 



P.D. 12. 19 

Petitions in seven counties on the thirty-year accounts are still pending and are 
expected to be disposed of shortly. 

In addition to the amount of money thus made available, the activity disclosed 
the existence of a well-organized scheme to defraud the Commonwealth and right- 
ful owners of these funds, resulting in prosecutions by this Department. 



Missing Heir Frauds. 

One hundred and eight indictments have been returned in the various counties 
involving eleven persons, seven of whom are attorneys at law in the Commonwealth. 

In the investigation of bank accounts standing in the names of probate judges for 
the benefit of persons whose whereabouts were unknown, in connection with pro- 
ceedings described in the preceding section of this report, it was disclosed that ap- 
proximately $100,000 had been obtained through the probate courts over a period 
of years by individuals pretending to represent legal heirs. In many cases the heirs 
were reported to be residing in foreign countries. In cases where legal heirs did 
exist, participants in the fraudulent scheme obtained the funds by use of names of 
the heirs and made no accounting after obtaining the money from the courts. 

The scheme involved the forgery of petitions and affidavits, the obtaining of the 
signatures of judges of probate to decrees by misrepresentation, and the mutilation 
of probate court records. In one case, the seal of a notary in Canada was manu- 
factured, and used in conjunction with the forgery of his name. 

One defendant has already been disbarred and is serving a sentence in the House 
of Correction in Worcester. Other cases are still before the courts and, with- the 
exception of one defendant who is now in the armed forces, will be disposed of 
shortly after trials and pleas of guilty. 

Litigation in Texas Courts. 

Commonwealth v, Davis. 
Davis V. Commonwealth. 

Immediately upon my assuming office in January, 1941, His Excellency Governor 
Saltonstall called my attention to the fact that the Commonwealth was a judgment 
debtor to one Edgar B. Davis in the amount of $825,095.84, as a result of proceed- 
ings in a district court of the State of Texas. Investigation disclosed the following 
circumstances : 

In 1926, Davis, a resident of Brockton, well known and well liked in that com- 
munity for his philanthropies, received a large sum of money as a result of oil pro- 
duction from certain properties in Texas. The Commissioner of Corporations and 
Taxation held that the sums thus received were subject as income to a tax at 6% 
by the Commonwealth of Massachusetts. Davis disputed this claim and, at the 
end of the year, purported to change his domicile to the State of Texas. 

In 192S, suit was brought by the Commonwealth to recover this tax. A special 
counsel was engaged by the Commonwealth to try the case in the Superior Court 
at Boston. The principal issue at the trial was whether or not Davis had actually, 
in good faith, effected a change of domicile from Massachusetts to Texas in 1926. 
The jury decided adversely to Davis. 

In 1933, the Supreme Judicial Court overruled exceptions taken by Davis to 



20 P.D. 12. 

rulings of the Superior Court (see Commonwealth v. Davis, 284 Mass. 41). Judg- 
ment with interest amounted to $534,917.48, plus $91.05 costs. Davis did not pay 
the judgment. 

In 1937 (June), the Commonwealth proceeded to bring suit against Davis on the 
Massachusetts judgment in a district court of Texas, at the same time suing out a 
writ of garnishment against the United North and South Development Company, 
about eighty per cent of the stock of which was owned by Davis. 

As a creditor resorting to a writ of garnishment, the Commonwealth under Texas 
law filed a bond running to Davis in the amount of $1,400,000, conditioned that 
the Commonwealth would pay all damages for " wrongful garnishment." The bond 
was executed on behalf of the Commonwealth by the then Governor of the Com- 
monwealth, with the approval of the Council, which act was later ratified by the 
General Court. The cost to the Commonwealth of this garnishment bond was 
$14,000 annually. 

Davis filed a cross action against the Commonwealth, which had thus submitted 
itself to the jurisdiction of the Texas courts, for "wrongful garnishment." 

In 1939 (October), the two cases were tried before a judge and jury in the county 
in which Davis then resided. Massachusetts was represented at the trial by one 
Kenneth B. Tiffin of Boston, and one William Russell, then a member of the San 
Antonio bar, who died shortly after the trial. 

The trial judge directed a verdict for the Commonwealth on the Massachusetts 
tax judgment, ruled that the garnishment was unlawful, and that it was a question 
for the jury to determine how much Davis had been damaged by the unlawful gar- 
nishment. The jury awarded Davis damages in the amount of $1,550,000. Under 
Texas practice, the amount of the directed verdict for Massachusetts, $724,904.16, 
was deducted from the $1,550,000 verdict in favor of Davis in the cross action. The 
net result was that the Massachusetts tax judgment was wiped out, and Davis was 
established as a judgment creditor of the Commonwealth in the amount of $825,- 
095.84. 

An appeal was duly entered on behalf of the Commonwealth. In order to pre- 
vent Davis from levying execution against the sureties, pending the appeal, a 
supersedeas bond in the sum of $1,700,000 was filed in March, 1940. The premiums 
on the supersedeas bond cost the Commonwealth $11,551.34 annually. Meanwhile 
the garnishment bond continued in effect, making a total annual cost to the Com- 
monwealth of premiums alone from March, 1940, of $25,551.34. 

Upon taking over this litigation on behalf of the Commonwealth in 1941, 1 found 
that Mr. Charles W. Trueheart, of the San Antonio bar, had succeeded to the prac- 
tice of the late William Russell and was acting as Texas counsel for the Com- 
monwealth. I found him to be a reputable and capable lawyer who had done 
everything possible, under difficult circumstances, to protect the interests of the 
Commonwealth. I continued him as Texas counsel. I discharged Mr. Tiffin from 
any further connection with the case. 

The case was set down for argument before the Texas Court of Civil Appeals at 
Austin, Texas, June 4, 1941, and was argued for the Commonwealth personally by 
me in association with Mr. Trueheart. This court set aside an item of $1,000,000 
awarded as damages to Davis in the lower court, but otherwise affirmed the judg- 
ment of the trial court. This resulted in a net judgment in favor of the Common- 
wealth in the sum of $174,904.16. 



P.D. 12. 21 

While in Texas on this occasion, I attempted by conferences with counsel for 
Davis to effect a settlement of the case and thus bring the litigation to an end. 
These efforts met uith no success — apparently because of Davis' belief that he 
had been unjustly treated by the Commonwealth over a period of years. 

After the decision of the Court of Civil Appeals at Austin, each party applied 
for a writ of error to the Supreme Court of Texas, and both applications were 
granted. The case was specially assigned for hearing before the Supreme Court 
of Texas on October 14, 1942. 

I again argued the case personally for the Commonwealth, in association with 
Mr. Trueheart. On December 16, 1942, the Supreme Court of Texas handed 
down a decision affirming the judgments of the district court and the Court of 
Ci\'il Appeals in favor of the Commonwealth against Davis on its tax judgment, 
reversing all judgments of the trial court and the Court of Civil Appeals in favor 
of Davis on his cross action, and rendering judgment denying any recovery thereon. 

Under the terms of this decision, the Commonwealth is fully restored to its 
position as a judgment creditor, and claims l)y Daxas for damages on the cross 
action are wiped out. The expeditious manner with which the Supreme Court of 
Texas dispatches its business indicates that motions for rehearing filed by Davis 
will be acted upon within a short space of time. 

The cost to the Commonwealth of the $25,000 payments on bond premiums will 
terminate when the Supreme Court of Texas has disposed of the case. 

This case involved more than money; it involved the good faith of the Com- 
monwealth. The judgment against Massachusetts was, in effect, based on the 
proposition that the Commonwealth had committed a wrongful or tortious act 
against Davis for which it was responsible in damages to him. 

Regardless of whether or not action in suing out the garnishment or in enter- 
ing the state courts of Texas was wise, I did not believe that any of the officials 
of the Commonwealth responsible for these actions intended to commit a wrong 
or that they acted in any manner by which bad faith should be imputed to the 
Commonwealth of Massachusetts. I felt that it was incumbent upon me as Attor- 
ney General to maintain this proposition, in which I sincerely believed, until every 
possible effort had been made to erase a finding to the contrary. 

The decision of the Supreme Court of Texas fully clears the Commonwealth of 
such imputations, and regardless of what further action the judgment debtor may 
seek to take, I am not apprehensive that the allegation of bad faith or commission 
of a wrongful act on the part of the Commonwealth will again be successfully 
asserted. 

It is sometimes asserted that sectional differences are still existent in this coun- 
try. Representing the people of this Commonwealth, I twice appeared l>efore 
appellate courts directly elected by the people of Texas. I wish it to be recorded 
that no litigant could have received fairer hearings before a more capable and in- 
telligent judiciary than have been accorded the Commonwealth of Massachusetts 
by the courts of the State of Texas. Moreover, no counsel could have been treated 
with greater courtesy and consideration than was the Attorney General for the 
Commonwealth of Massachusetts on both appearances before Texas courts. 



22 P.D. 12. 



Bankruptcy Reorganization of New York, New Haven and Hartford Rail- 
road Company and Old Colony Railroad Company. 

The petition for reorganization of the New Haven Railroad was filed in the 
United States District Court for the District of Connecticut, October 23, 1935. 
The petition for reorganization of the Old Colony Railroad was filed in the same 
court in June, 1936. In the following years several plans of reorganization were 
filed and extended hearings were held. In March, 1940, the Interstate Commerce 
Commission by its Division 4 approved a plan of reorganization, excluding the 
Old Colony from the New Haven plan. In August, 1940, an Interstate Commerce 
Commission examiner recommended abandonment of service on the Boston group 
lines of the Old Colony. These are the lines through Braintree to Mi ddlebo rough, 
Plymouth and Green bush. Representatives of the public opposed these steps 
and further hearings were held. 

On February 18, 1941, the Interstate Commerce Commission denied the petition 
to abandon the Boston group and reported favorably a plan for reorganization of 
the New Haven and Old Colony railroads together, with provisions under which, 
if the New Haven in certain measuring years should sustain out-of-pocket losses 
in its operation of the Old Colony lines, passenger service on the Boston group 
might be abandoned. 

This plan allowed freight gains to offset passenger losses and made allowance 
for all aspects of gain as well as loss to the New Haven in its operation of the Old 
Colony. The plan was objected to by the security holders but was not opposed 
by the public representatives. It appeared to give an opportunity for assuring a 
continuance of the Boston group passenger operation in the hands of a private 
carrier. 

On June 3, 1941, hearings were held on this plan in the United States District 
Court. In the course of the hearing the District Judge, acting informally, ap- 
pointed what he characterized as an informal committee to consider and, if possible, 
state, a compromise proposal. This committee consisted of Edwin S. S. Sunder- 
land, J. Burke Sullivan, Charles A. Coolidge and Harry W. Dorigan. Mr. Sunder- 
land was counsel for the Insurance Group, holding New Haven securities. Mr. 
Coolidge was counsel for the Old Colony. Mr. Dorigan was a member of the 
Trustees' staff. Mr. Sullivan had been an Assistant Attorney General in charge 
of the case for the Commonwealth during the administration of my predecessor. 
He was reappointed by me when I took office on January 15, 1941, and reassigned 
to continue in general charge of the New Haven Reorganization matter. The 
court made it clear that the members of the committee thus appointed were to 
act in their individual capacities only, without power to bind their principals. 

On December 8, 1941, the court disapproved the Interstate Commerce Commis- 
sion plan of February 8, 1941, and appended to its opinion a report of the Com- 
promise Committee, commending it for consideration. 

Hearings relative to a new plan were held before the Interstate Commerce Com- 
mission from February 17 to February 20, 1942. 

On April 4, 1942, the Compromise Committee, joined by the New Haven Plan 
Committee, the Insurance Group, the Mutual Savings Bank Group and the Old 
Colony Plan Committee, filed with the Commission the so-called Joint Report, 
which in effect placed in the record as a formal proposal the Compromise Com- 



P.D. 12. 23 

mittee's Plan of Reorganization, supplemented by a statement of the price to be 
paid by the New Haven for the Old Colony properties. 

On April IS, 1942, attorneys for both debtors, for numerous creditor groups, 
and for several creditors, filed a Joint Brief in support of this plan. 

Meanwhile, upon full, complete analysis of the plan and consideration of its 
effect in operation, I came to the conclusion that unless modified in substantial 
respects the plan was contrary to the best interests of the Commonwealth, and 
should be opiwsed in its then form. 

I appointed Arthur E. Whittemore, Esquire, of Hinghani, as a Special Assistant 
Attorney General to assist me in the case. Mr. Whittemore had been associated 
with the case as counsel to the Commuters' League of the South Shore. 

On April 20, 1942, and May 15, 1942, I filed briefs on behalf of the Common- 
wealth opposing the plan on the grounds that it gave no substantial assurance of 
the continuance of passenger service, no matter what further economies and sac- 
rifices might be made, and, by giving the lines to the New Haven at scrap value 
for profitable freight use, with the possibility that it would be able to escape from 
all passenger obUgations on the Boston group lines, the plan unjustifiably enriched 
the New Haven at public expense. Objection was also made that the plan, by 
using passenger losses for purposes of the escape clause only, permitted abandon- 
ment of passenger service notxA-ithstanding profitable operation of the Old Colony 
lines as a whole. The briefs also developed the view that a feasible alternative 
existed and recorded particular objection to the provision of the plan which would 
have attempted to foreclose legal questions by requiring a stipulation from the 
Attorney General. An opportunity for oral argument was requested. 

On October 6, 1942, the Interstate Commerce Commission, having considered 
the matter on briefs and xvithout an oral hearing, issued its third Supplemental 
Report and Order, recommending this Compromise Committee or Joint Report 
Plan. 

The apparent assumption of the Compromise Committee Report had been that 
the Plan provided a means whereby passenger service might be saved. The Dis- 
trict Judge, in his comment on the Plan in his opinion of December 8, 1942, indi- 
cated his appreciation of the position of the Massachusetts authorities and recog- 
nition of their desire to continue co-operation "in order to find a solution which 
should meet the reasonable requirements of the Massachusetts public and yet 
comport with the rights of property under the American system." The Inter- 
state Commerce Commission, in its report of October 6, 1942, appears to assume 
that the Plan will give the Commonwealth an opportunity to preserve the pas- 
senger service. The report, at page 22, reads: "Paragraph (c) of section 4 is in- 
tended to give the Commonwealth of Massachusetts an opportunity to insure the 
continuation of passenger service upon fully protecting the reorganized principal 
debtor against unlimited passenger losses." 

I have been and am in favor of a Plan which gives the Commonwealth this op- 
portunity on a reasonable basis. There has been every disposition on my part to 
proceed in a spirit of give and take to develop such a Plan. I stated on February 
19, 1942, at the Interstate Commerce Commission hearing, "that the parties that 
seem to represent divergent interests here should adopt an attitude of compromise, 
a realization that somebody has got to give way here in some manner, otherwise 
this thing will be kept in litigation for twenty years and there \nll be nothing left 



24 P.D. 12. 

at all at the end, and the Commonwealth of Massachusetts stands very willing in 
all of its departments to proceed on that basis." That statement still holds true. 
But I am convinced that the Plan does not do what it has been assumed to do 
and must do if it is to be fair to the people of this Commonwealth. It does not 
give an opportunity to insure the continuation of passenger service. On the con- 
trary, it tends to insure that the passenger service will not continue. The Plan 
itself does not disclose this. It becomes apparent, however, on an examination 
of the entire Old Colony-New Haven reorganization picture and in particular of 
the projects and proposals for reduction of passenger losses. 

Close scrutiny of the Compromise Plan as a part of the whole picture of the Old 
Colony-New Haven Railroad Reorganization convinced me that the condition of 
avoiding the loss of passenger service under the Compromise Plan is in great proba- 
biUty an impossible one to meet and consequently that the Plan fundamentally is 
not what it purports to be. Therefore, in accordance with my conviction that 
compromise can and should be had, I have made very effort to obtain modifica- 
tion of the Plan. 

The Compromise Plan proposes to wipe out charter obligations to render pas- 
senger service on the Boston group and to substitute a contract obligation to 
carry passengers on condition inter alia that if after two years the losses (measured 
on a so-called segregation formula) in any two-year period in passenger operation 
alone, regardless of freight earnings, are at the rate of more than $250,000 per 
year, passenger service may be abandoned on the Boston group. The reasons why 
this critical figure in all probability can never be attained are stated in detail in 
the Attorney General's briefs hereinbefore referred to. The Plan gives control of 
all the Old Colony Lines to the New Haven and at its option the ownership also. 
Upon abandonment, the Commonwealth will have to consider taking over the 
operation of the lines, but the Plan does not provide the figure at which the Com- 
monwealth might acquire them. In this aspect the unattainability of the critical 
figure not only tends against the continuance of service, but also tends to place 
the Commonwealth in an unfair position with respect to providing substitute 
service. 

After the receipt of the order of the Interstate Commerce Commission of Octo- 
ber 6, 1942, as already noted, rendered without oral hearing, Special Assistant' 
Attorney General Whittemore went to Washington to ascertain whether or not 
opportunity would be given to file a petition to modify the reported plan as in 
the case of an original plan reported by the Commission. Having ascertained that 
such opportunity would be given, the Attorney General, on December 3, 1942, 
with the special Railroad Commission, filed a petition to modify the Plan, together 
with a supporting brief. At the same time an opportunity for oral argument on 
behalf of the Commonwealth was again requested. 

At the time of writing this report there has been no indication whether there 
will be an oral hearing before the Commission. 

The next step, after final consideration by the Commission, wiU be before the 
United States District Court for the District of Connecticut. If the Plan is not 
modified, as I believe justice to the Commonwealth requires, I shall continue to 
oppose it through the courts. 

I cannot but believe that at some stage the objections of the Commonwealth to 
this Plan will be found to require that substantial modifications be made therein. 



P.D. 12. 25 

If this does not occur, however, I believe it will be necessary for the Common- 
wealth to consider whether it should not acquire the lines, at least as far as Brain- 
tree, before, by virtue of the reorganization Plan, the New Haven shall have finally 
acquired the ownership or control thereof. Apparently under that plan the New 
Haven is to pay only scrap value for this ownership or control. If the Common- 
wealth is to be forced to take these Unes it should not let pass the opportunity to 
get them when they are for sale at this price. 
A paragraph in the Commissioner's Order of October 6, 1942, reads as follows: 

"/< is further ordered, That should the judge determine, after due notice and hearing, 
that the provisions of this plan in respect of the reorganization of the Old Colony are, 
because of opposition of other than New Haven parties or interests, such as to delay 
unreasonably and unnecessarily the reorganization of the principal debtor, he may, in 
his discretion set such provisions aside and consider and act upon the plan for reor- 
ganization of the principal debtor and the secondary debtors other than the Old 
Colony." 

In 1939 and 1940 it appeared to be greatly against public interest that separate 
reorganization should occur. The expectation that joint reorganization meant a 
chance to save the passenger service as a private operation was borne out by the 
action of the Commission in February, 1941, in proposing a joint plan which gave 
that chance. But the Plan, in its present form, while it provides for joint reorgani- 
zation, appears to carry with it substantial elimination of the chance to save the 
passenger service. Therefore, if this Plan persists without modification the Com- 
monwealth must consider whether it would not be better ofT if the Old Colony were 
excluded from the New Haven reorganization. I believe that this dilemma ought 
not to be forced upon the Commonwealth. Modification of the Plan would appear 
to make it reasonably avoidable. If, however, it is finally presented, it should be 
met and dealt with. 

Boston Elevated Railway Litigation. 

By chapter 89 of the Resolves of 1941, approved on October 27, 1941, provision 
was made for the bringing of proceedings seeking judicial determination of the 
powers and duties of the Trustees of the Boston Elevated Railway Company with 
respect to certain charges included in the "cost of the service" as defined in the 
Public Control Act, Spec. St. 1918, c. 159, as amended and extended by St. 1931, 
c. 333. 

Questions were raised by a report of the special counsel employed in an investi- 
gation of the Boston Elevated Railway under the auspices of the Mayor of Boston 
and the Boston Finance Commission, dated March 12, 1941. This report was made 
to His Excellency the Governor on April 9, 1941, and was referred by him to the 
Attorney General for advice. 

The report, proceeding on the assumption that the contentions of counsel made 
therein were estabhshed principles of law^, recommended that a suit for an account- 
ing be brought by the Attorney General covering the entire period during w^hich 
the Boston Elevated Railway has been operated under the Public Control Act. 

The views of the Attorney General on this subject appear in House Document 
2627. In substance they are that the Boston Finance Commission Report raises 
substantial questions of law which should be judicially decided, but that every effort 
should be made to secure such judicial determination, if possible, by shorter means 



26 P.D. 12. 

than an accounting suit of enormous cost and unpredictable length. Attention 
was called to the fact that the ex parte investigation by the Boston Finance Com- 
mission, upon which the report was based, had consumed 19 months at a cost to 
the City of .156,185 for legal counsel, accountants, engineers, etc., and that ob- 
viously this would be but a fraction of the time and expense necessarily involved in 
the suit for an accounting as recommended by the report. 

On November 12, 1941, Assistant Attorney General Joseph K. Collins of Boston 
was assigned by me to devote his full time to the preparation, conduct and direction 
of the litigation brought pursuant to the resolve. From time to time other assist- 
ants and law clerks have been assigned to aid him in this work. 

On January 26, 1942, an information in equity was filed in the Supreme Judicial 
Court, which court declined jurisdiction and referred the case to the Superior Court. 
This information sought to obtain a declaratoiy decree interpreting the Public 
Control Act by defining the powers and duties of the Trustees with respect to de- 
preciation and obsolescence allowances, the expansion of the Company's plants by 
use of moneys retained by said allowances and with respect to charges included in 
the cost of the service as maintenance expense. 

An answer was filed by the Public Trustees on March 21, 1942, setting up a de- 
fense, in substance that the charges included in the cost of the service by the Trus- 
tees were properly included therein, that the amounts charged for depreciation, 
obsolescence and losses were amounts which the Trustees, in the exercise of dis- 
cretionary powers granted to them by the statute, had been determined to be 
necessary or advisable with respect to charges against the Reserve for Depreciation. 
It is asserted that such charges in no way increase the cost of the service and it is 
denied that the Company's plant has been expanded by overcharges included in 
the cost of the service. 

The Boston Elevated Railway Company filed a demurrer to the information. 

Inasmuch as the City of Boston bears the greatest burden on the reassessment 
of deficiency payments made by the Commonwealth, I invited the Corporation 
Counsel for the City of Boston to collaborate in the litigation. Assistant Corpo- 
ration Counsel James W. Kelleher, who had participated in the investigation and 
signed the report to the Boston Finance Commission and the Mayor of Boston, 
was assigned to the case by the Corporation Counsel. 

The demurrer filed by the Boston Elevated Railway raised certain questions 
that made it advisable to file an amended information. To the amended informa- 
tion the Trustees filed an answer and the Company again demurred, the plead- 
ings being completed on June 23, 1942. The case was heard on oral argument 
by a Justice of the Superior Court November 18 to 23, 1942, and supporting briefs 
were filed. 

On February 2, 1942, suit was brought by George E. Richards et als. v. Hurley, 
Treasurer and Receiver General, et als., Suffolk Superior Equity No. 54373. This is 
a suit under the so-called taxpayers' statute, G. L. (Ter. Ed.), c. 29, § 63, and St.' 
1937, c. 157, against the Treasurer and Receiver General, the Commonwealth, 
the Trustees and the Elevated Railway Company. This suit sought to restrain 
the payment of alleged deficiencies certified by the Elevated Trustees for the twelve 
months ending March 31, 1941, and for the nine months ending December 31, 
1941. In many respects the suit attempted to cover the same ground as the infor- 
mation in equity and has delayed and complicated these proceedings to some 



P.D. 12. 27 

extent. Demurrers and pleas in this suit were argued at tlie same time as those 
to the information in equity brought by the Attorney General. In view of the 
fact that the case is still in litigation and the issues raised by the pleadings are 
still under consideration by the Justice before whom arguments were made, further 
comment on the case at this stage would be inappropriate. 

As indicated in the communication reproduced in House Document 2627, page 
17, in order to avoid duplication of expense, I proposed to use as much of the evi- 
dence and information acquired by the investigators for the Finance Commission 
as possible. This policy has been followed. For accounting services Messrs. F. E. 
Welch and J. Frank Waring and for engineering services Henry S. Day have thus 
far principally been relied upon in the preparation of the case. All of these gentle- 
men were employed by the F. E. Welch Company in the Boston Finance Com- 
mission investigation upon which the report was made. 

By chapter 89 of the Resolves of 1941, $75,000 was appropriated to the Depart- 
ment of Public Utilities to meet the costs of this litigation under the direction of 
the Attorney General. For the period covered by this report, expenditures of 
$16,802.34, approved by the Attorney General, have been made. 

Miscellaneous Legal Services of the Department in the Field of Civil Law. 

By G. L. (Ter. Ed.) c. 12, § 3, the Attorney General is required "to appear for 
the commonwealth and for state departments, officers and commissions in all suits 
and other civil proceedings in which the commonwealth is a party or interested, 
or in which the official acts and doings of said departments, officers and commis- 
sions are called in question. . . . All legal services required by such departments, 
officers, commissions ... in matters relating to their official duties shall, except 
as otherwise provided, be rendered by the attorney general or under his direction." 

During the past year the Attorney General has rendered 81 formal written 
opinions upon questions of law to departmental heads and other officers of the 
Commonwealth in response to their requests and in connection with duties re- 
quired of them. 

The Attorney General has been called upon to defend various officers of the 
judicial, executive and administrative services of the Commonwealth against peti- 
tions for extraordinary writs in 29 cases in the Supreme Judicial or Superior Court 
and against three bills in equity brought with like purpose. These included two 
petitions for writs of prohibition; 15 petitions for writs of mandamus; and 12 
petitions for writs of certiorari. 

The Department has appeared in 17 cases which have been brought by the peti- 
tioners upon appeals or exceptions before the Full Bench of the Supreme Judicial 
Court. These include five cases concerning tax matters coming direct to the court 
from the Tax Appeal Board by report or from the Probate Court. Four cases 
have not yet been decided; three were adversely determined; and opinions favor- 
able to the Commonwealth were rendered in ten. 

The Department has examined and approved 407 contracts divided among the 
follo\\dng administrative departments or institutions: 

Department of Public Works . . . . . . . .74 

Metropolitan District Commission ........ 30 

Commission on Administration and Finance ...... . 288 



28 

Massachusetts State College . 
Department of Correction 
Department of Mental Health 
Department of Public Health 

Total .... 



P.D. 12. 

2 
4 



407 



The Department has examined and approved 275 deeds and releases for the fol- 
lowing departments: 



Department of Public Works . . . " . 


. 270 


Department of Correction ...... 


2 


Department of Mental Health ..... 


1 


Metropolitan District Commission .... 


1 


Adjutant General ....... 


1 



Total 



275 



The Department has examined and approved 104 leases for the following de- 
partments : 



Superintendent of Buildings . 
Department of Public Works 
Department of Adjutant General 
Department of Conservation 

Total .... 



27 

1 11 

4 

62 

104 



Claims Involving State-Owned Vehicles. 

Sixty-three cases were disposed of by settlement or after trial during the period 
covering December 1, 1941 to November 30, 1942, on which a total of $10,472.17 
was paid. At present there are forty-four cases pending and one hundred and 
sixty claims on which no suit has been brought. 



Town By-laws. 

The Attorney General is required to pass upon the legality of all town by-laws, 
including zoning by-laws. 

By-laws of 82 towns, some original and some amendatory in character, have 
been examined in detail and perfecting changes indicated for some, so that over 
80 of the sets of by-laws submitted were approved. 



Board of Appeals on Motor Vehicle Liability Policies and Bonds. 

An Assistant Attorney General is required by statute to sit as a member of this 
three-man Board which performs a valuable service in determining whether can- 
cellation of motor vehicle liability policies by insurance companies is reasonable 
and in sustaining appeals from unwarranted action by insurers against their policy- 
holders. Timely recommendations and decisions of this Board often serve to curb 

1 To the United States for war purposes. 



P.D. 12. 29 

the dangerous driver and the irresponsible registrant of an automobile or truck. 
The time of an assistant for an average of three days a week is required for this 
work. 

Collections. 

The various departments in the State government make diligent efforts to effect 
collections of accounts due the Commonwealth. When they have exhausted their 
efforts to collect these accounts, they are turned over to this Department. 

During the year covered by this report this Department has collected from the 
accounts so turned over to it, and exclusive of unclaimed bank deposits, referred 
to under a separate heading in this report, the sum of $143,967.62. 

Refunds — Mattress Tax. 

The Legislature authorized the refund under the direction of the Attorney 
General of the license fee imposed by chapter 351 of the Acts of 1939 and by Item 
2820-07 of chapter 683 of the Acts of 1941 appropriated $10,000 for this purpose. 
The license fee, the so-called mattress tax, had been held unconstitutional in 
Mueller v. Commissioner of Public Health, 307 Mass. 270. From the stubs of the 
licenses which were turned over to the Attorney General it appeared that 206 
licenses were issued, amounting to $10,500. The number refunded to date has 
been 47 — $2,350 being repaid. Refunds are made upon application of the licen- 
see, and upon receipt and approval of the necessary releases. 

Extradition and Rendition. 

There were 16 applications from other states. After examination, hearing and 
report, all were found to be in proper form. One was withdrawn by the demanding 
state. 

The Commonwealth made 60 applications upon other states and the return of 
59 fugitives from justice for trial here was effected. One application has been with- 
drawn pending proceedings. Of these, 27 persons were brought back on charges 
of desertion, nonsupport and neglect of wife and children. The Commonwealth 
instituted one case of extradition — this on the Dominion of Canada. 

Recommendations for Legislation. 

This report contains no specific recommendations for legislation. However, 
drafts of several proposed acts have been considered and prepared in co-operation 
with other departments of the Commonwealth. Those drafts have been filed with 
the General Court by various members of the House of Representatives. 

Criminal Law. 

The general policy of the present administration is to leave the great bulk of 
the criminal business in the hands of the district attorneys elected by the people of 
the eight districts into which the Commonwealth is divided. Numerous confer- 
ences have been held at the office of the Attorney General attended by the district 
attorneys and their assistants, for the purposes of uniform and effective adminis- 
tration of the criminal law throughout the Commonwealth. Excellent progress 



30 P.D. 12. 

has been made in this regard, and the Department has received the whole-hearted 
co-operation of all district attorneys. Direct charge of criminal prosecution is 
undertaken by the Attorney General in such cases as involve the public interest 
of the entire Commonwealth. 

A division of criminal law is maintained within the Department for the purpose 
of conducting such prosecutions as may be considered advisable to be undertaken 
by the Department, and generally to promote a more effective and uniform ad- 
ministration of the criminal law. 

In addition to the missing heir cases already referred to in another part of this 
report, the Department has found it advisable to undertake criminal prosecu- 
tions in enforcement of the Milk Control Law for the protection of small dairy 
farmers throughout the Commonwealth. 

It was found advisable also to undertake prosecutions of public officials and 
other persons in one community in which it was felt that wholesale corruption 
was undermining the whole fabric of local government. These prosecutions re- 
sulted in convictions and jail sentences for two commissioners of public safety in 
charge of the Police and Fire Departments, one lawyer, acting as the intermediary 
for the commissioner in a conspiracy to solicit and accept bribes, and others noted 
below. 

After the conviction of conspiracy to solicit bribes of the first commissioner 
and his sentence to the House of Correction, the second commissioner was elected 
to take his place. At the time of his election this person was under indictment 
for conspiracy to solicit bribes while serving as a school committeeman. Follow- 
ing his election he was tried, convicted and sentenced to the House of Correction, 
from which place he has apparently continued to run the Police and Fire Depart- 
ments committed to his charge. 

After conviction or pleas of guilty, the officials in this group of cases were sen- 
tenced by different judges of the Superior Court before whom they had pleaded 
guilty or been tried. The manner with which the courts dealt with various de- 
fendants differed in accordance with the varying facts of each individual case and 
the view of the presiding judges thereon. One school committeeman found 
guilty of conspiracy to solicit a bribe was sentenced to 15 months in the House of 
Correction; another found guilty of a violation of the Corrupt Practices Act, 
requesting and accepting gratuities, received a sentence of 18 months; a former 
school committeeman charged with accepting a bribe was found guilty and sen- 
tence of one year was suspended; a commissioner of the Soldiers' Relief Depart- 
ment found guilty of conspiracy to defraud the city and of accepting a bribe was - 
sentenced to State Prison for a term of 3 to 4 years. His confederate, who pleaded 
guilty, received a suspended sentence of 2 years, conditioned upon restitution; an 
ex-alderman, head of an engineering department, pleading guilty to two indict- 
ments involving solicitations of bonuses from employees, received a fine of $500 
in each case; a superintendent of schools pleading guilty to an indictment charg- 
ing him with conspiracy to offer a bribe to a school committeeman was fined $500, 
and continues to act as superintendent of schools; an alderman, director of public 
property and parks, pleaded guilty with his son to the charge of conspiracy to 
defraud the city, and fines of $500 were imposed on each. 

The foregoing constitutes a brief resume of conditions existing in that community 
and the activities undertaken by this Department with a view to their correction. 



P.D. 12. 31 

Under conditions of total war, it is clear that certain types of criminal activity 
may become even more serions in their effect upon any American community than 
in peacetime. Obviously, widespread organized criminality, diverting financial and 
other resources away from government into the private possession of a compara- 
tively few unscrupulous individuals, constitutes aid and assistance to the enemy, 
whether so intended or not. 

Widespread belief that powerful interests are above the law, and therefore im- 
mune from prosecution, has a doubly serious effect upon the morale of a people at 
war, called upon — and willing • — to make every sacrifice to win that war. Gov- 
ernment should not only receive but merit the confidence of its people to a higher 
degree now than ever before. 

Criminal activities of the type referred to, with effects so far-reaching that they 
ai-e not always readily discernible, can seriously undermine the war effort in any 
community and can weaken the foundations of the democratic system of govern- 
ment at home, while members of the armed forces are sacrificing their lives to 
preserve it from enemies abroad. 

Obviously, it is the duty of law-enforcement branches of civilian government to 
be doubly vigilant and to use all means within their power to stamp out criminal 
activities. 

This Department will continue to attempt to meet its responsibilities in this 
regard. 

Respectfully submitted, 

ROBERT T. BUSHNELL, . 
Attorney Gerieral. 



32 P.D. 12. 

OPINIONS. 



Public Health — P re-Marital Medical Examination. 

Dec. 1, 1941. 
Dr. Paul J. Jakmauh, Commissioner of Public Health. 

Dear Sir: — You have written to ask my opinion as to the interpretation of 
those provisions of G. L., c. 207, § 20B — enacted as St. 1941, c. 601, § 1, and 
amended by St. 1941, c. 697 — which deal with an examination of the parties to 
an intended marriage to be made by a physician. The pertinent provisions of 
the statute are as follows: 

"Except as hereinafter provided, such notice of intention of marriage shall not 
be accepted by the clerk or registrar until he has received from each party to the 
intended marriage a certificate signed by a qualified physician registered and prac- 
tising in the commonwealth or a commissioned medical officer on active service in 
the armed forces of the United States who has examined such party as hereinafter 
provided. If such physician, in making such examination, discovers evidence of 
any infectious disease declared by the state department of public health to be 
dangerous to the public health, he shall inform both parties of the nature of such 
infectious disease and of the possibiUties of transmitting the same to his or her 
marital partner or to their children. Such examination shall include a standard 
serological test for syphilis and said test shall be made bj^ a laboratory of said de- 
partment or by a laboratory approved by it for such test. 

The examination by such physician and the laborator\^ test shall be made not 
more than thirty days before the fihng of the notice of intention of marriage. ..." 

You state that there is considerable confusion among physicians concerning the 
nature of the examination required by this statute, and that this arises from their 
uncertainty as to whether or not the parties must be examined for all infectious 
diseases declared by the State Department of Pubhc Health to be dangerous to 
the public health. 

At the time St. 1941, c. 601, was enacted, some forty infectious diseases, includ- 
ing syphilis, had, pursuant to G. L., c. Ill, § 6, been declared by your department 
to be dangerous to the public health. You have furnished me with a list of these 
diseases, which is still in force, and you inform me that for the detection of many 
an elaborate laboratory examination is necessary. 

In my opinion, syphilis is the only one of these infectious diseases the presence 
or absence of which must be determined, in the manner prescribed, as a part of 
the examination required by G. L. c. 207, § 20B, as amended. I am led to this 
conclusion primarily by the terms of the statute, providing that the physician 
shall inform the parties regarding any of these diseases of which he "discovers 
evidence" in making his examination, but requiring, in the case of syphilis, that 
the examination shall include a specific t^st to be made in a specified laboratory. 

Moreover, that only one laboratory test must be made seems manifest from the 
pro\'ision that the "examination by such physician and the laboratory test" shall 
be made not more than thirty days before the filing of the notice of intention. 
Yet, as you inform me, many of the diseases referred to cannot be detected with- 
out various laboratory tests. This fact furnishes added support to the conclusion 



P.D. 12. 33 

that the physician is not required to determine the presence of any of the infectious 
diseases other than syphilis, as distinguished from merely discovering evidence of 
such diseases. 

If the Legislature had intended the examination to determine the presence or 
absence of every disease in the category named, it undoubtedly would have so 
provided, and the expression of the requirement of a laboratory test as to one 
disease indicates that its omission as to the other diseases was intentional. Cf. 
Boston & Alhanij R.R. Co. v. Commomvealth, 296 Mass. 426, 434. 

On the other hand, I believe that the physician's examination should be of such 
nature as to disclose any evidence of the infectious diseases referred to which a 
physician could reasonal)ly be expected to discover without a laboratory test. 
My opinion in this regard is based upon the manifest purpose of the statute, 
which is to protect the public health by measures reasonably calculated to deter 
the transmission, incident upon marriage, of the designated infectious diseases. 
The method adopted is a compulsory examination by a physician, including one 
laboratory test. The only object of the examination is to enable the physician to 
enlighten the parties to the intended marriage regarding the nature and trans- 
missibility of any infectious disease in the specified group, of which he discovers 
evidence. Plainly, in order to carry out the purpose of the statute, the physician's 
examination should be directed toward the discovery of such evidence. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Board of Registration of Hairdressers — Rules — Application for Examination. 

Dec. 2, 1941. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — The Board of Registration of Hairdressers through you has 
asked my opinion upon two questions. 
1. The first question reads: 

"The Go^•ernor recently sia;ned a bill amendins; our law, which becomes effective 
November, 1941. Under section 87W a person filing an application for examination 
must file this application together with two photographs of herself. At the time 
this law was amended, it was the intention of the Board to have one photograph 
pasted on the application and the other on the registration. Now the question 
arises as to whether or not the Board can pass a ruling, and request the persons 
alreadv holding a registration to file these two pictures when renewing their regis- 
tration for 1942." 

Section S7W of G. L. (Ter. Ed.) c. 112, as inserted by St. 1941, c. 626, § 5, in 
place of former section 87 W, reads as follows: 

''.■\.n>^ operator who has had not less than six months' practical experience as 
such, and who, after application accompanied by an examination fee of ten dollars 
for a first examination together with two photographs of the applicant or five dollars 
for a second or sul:)sefiuent examination, passes a practical examination satisfactory 
to the l)oard, may be re'zistered by the board as a hairdresser, and thereafter may 
practice hairdressing in a re'j;istered shop for compensation, and may supervise 
operators, without additional payment for the period during which such person 
was originally registered as an operator, and thereafter upon payment annually 
of a hairdresser's renewal fee of two dollars." 



34 P.D. 12. 

Former section S7W contained no provision with relation to the furnishing of 
photographs. 

The force of the new section 87W is not retrospective. Its requirement as to the 
furnishing of photographs does not apply to former applicants who have already 
been registered. 

Although the new section S7W deals not only with the application, e.xamination 
and original registration of operators as hairdressers, but also with their subse- 
quent annual registration, as to the latter form of registration it contains no re- 
quirement concerning the furnishing of photographs. 

The Legislature appears to have fully regulated the whole subject of require- 
ments for annual registration as well as original registration of operators as hair- 
dressers. It has specifically established the requirement for such annual registra- 
tion and has provided only that it shall consist of the payment of a fee. A rule 
made by your Board establishing an additional requirement for annual registra- 
tion, such as the furnishing of photographs, would be repugnant to the statute 
and so would not be within the rule-making authority vested in your Board by 
section 87CC of said chapter 112. 

It was said by the Supreme Judicial Court in Commomrealth v. Johnson Whole- 
sale Perfume Co. 304 Mass. 452, 457: 

"When a subject has been fully regulated bj' statute an administrative board 
cannot further regulate it by the adoption of a regulation which is repugnant to 
the statute. Commomvealth v. McFarlnne, 257 Mass. 530, 531." 

Consequently, in my opinion, your Board may not, under its rule-making au- 
thority, establish an additional requirement for the furnishing of photographs by 
operators seeking an annual renewal of their hairdresser's registration originally 
granted under section 87W in either its old or amended form. 

2. Your second question asks whether persons who have not renewed their 
registrations as hairdressers granted them for the years 1936 to 1941 may now 
renew them before November, 1944, in view of the amendment of G. L. (Ter. Ed.) 
c. 112, § 87GG. 

St. 1941, c. 626, § 9, amends G. L. (Ter. Ed.), c. 112, by striking out section 
87GG and inserting a new section 87GG, which reads: 

"Each registration granted under sections eighty-seven T to eighty -seven .TJ, 
inclusive, shall expire on December thirty-first next succeeding its date, and shall 
be renewed upon the filing of an application therefor, and the payment of the pre- 
scribed renewal fee, on or before its expiration. In default of such renewal, a per- 
son registered under said sections as a hairdresser, manicurist, instructor or opera- 
tor shall forfeit the right to engage in the occupation co\'ered b}' such registration 
until the prescribed renewal fee shall have been paid; provided, that any hair- 
dresser, manicurist, instructor or operator whose registration has not been so re- 
newed within three years following the date of expiration thereof shall not be 
entitled to renewal of such registration but shall register anew under sections 
eighty-seven T to eighty-seven JJ, inclusive." 

The effect of this new section 87GG is to bar from registration, upon payment 
of a renewal fee only, all registrations which expired more than three years prior 
to the effective date of said chapter 626. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



P.D. 12. 35 

Treasurer and Receiver General — Unemploijvient Compensation Funds and Ac- 
counts — Bonds — Statutory Construction. 

Dec. 2, 1941. 
Hon. William E. Hurley, Treasurer and Receiver General. 

Dear Sir: — You have informed me that you are the principal on a general 
bond, dated January 15, 1941, in the amount of $100,000 with a surety, for the 
faithful discharge of your duties as Treasurer and Receiver General, as required 
by G. L. (Ter. Ed.) c. 10, § 2. 

You ad\dse me that on January 15, 1941, you also gave bond with a surety in 
the amount of $25,000 for the faithful performance of your duties as Treasurer 
and Custodian of the Unemployinent Compensation Fund, as required by G. L. 
(Ter. Ed.) c. lolA, § 39, as then amended and in force on that date. Said section 
39 provided that the Treasurer "shall give a separate and additional bond condi- 
tioned on the faithful performance of his duties as treasurer and custodian of the 
fund." 

On January 15, 1941, you gave another bond with surety, in the amount of 
$25,000, for the faithful performance of your duties as Treasurer and Custodian of 
the Unemployment Compensation Administration. Accou7it, as required by G. L. 
(Ter. Ed.) c. 151A, § 42, as then amended and in force on that date. Said section 
42 provided that the Treasurer "shall give a separate and additional bond condi- 
tioned on the faithful performance of his duties as custodian of the moneys in the 
account.' 

By the enactment on October 24, 1941, of St. 1941, c. 685, said G. L. (Ter. Ed.) 
c. 151A, was repealed and a new chapter 151A, entitled "Employment Security," 
was inserted in its place. This new chapter made certain changes with relation to 
the two funds, set up by the repealed chapter, of which you were treasurer. 

Sections 48 to 55 established an unemploijment compensation fund, as formerly, 
of which the State Treasurer is treasurer ex officio. He is required to maintain 
within said fund (1) a clearing account, and (2) an unemployment compensation 
fund account. 

1. Money in the clearing account, except that used for refunds, is to be paid 
over by the Treasurer to the Secretaiy of the Treasury of the United States. 

2. All money received by requisition upon the treasury of the United States 
from the money paid into the said treasury for the account of the Commonwealth's 
unemployment trust fund is to be transferred by you to the Director of the Division 
of Employment Security, who is to deposit it in a "benefit account" to be used by 
him exclusively for the payments of benefits provided for by said chapter. The 
Director is recjuired to give a bond not exceeding $25,000, with surety, for "the 
faithful performance of his duties with respect to the benefit account." 

The new chapter 151A, in section 59 contains the following new provisions with 
relation to the bonds of the Treasurer: 

"The state treasurer, in addition to the provisions contained in section two of 
chapter ten, sliall be liable on the treasurer's bond for the faithful performance of 
his duties in connection with the unemplov-ment ccjmpensation fund, the clearing 
account in connection therewith and the enipl(j>-nient security administration 
account provided for under tliis chapter. Such liability of the treasurer on his 
official bond shall l)e effecti\e immediately upon the enactment of this provision, 
and such liability shall exist in addition to an>- lialnlitv- upon any separate bond 
existent on the effective date of this provision." 



36 P.D. 12. 

You have asked me in the three following specific requests to advise you with 
relation to the course you should now follow concerning the said three outstand- 
ing surety bonds on which you are the principal: 

"1. Does section 55 of chapter 685 provide for the liability for the Benefit Ac- 
count formerly placed upon me being transferred to the director? Should this 
bond be canceled? 

2. Section 59 of chapter 685 has been changed in accordance with the request of 
the federal authorities and it would now seem that my general bond covers all the 
different accounts. There will be for at least the next year outstanding checks 
which have been signed by me. 

3. Is it your interpretation that the two -125,000 bonds which have been written 
to run concurrent with the term of office as Treasurer and Receiver General shall 
be continued until the end of my term in January, 1943, and after that date no sepa- 
rate bonds will be required for the protection of either the Administration Account 
or the UnemplojnTient Compensation Benefit Account?" 

Section 55 of said chapter 151A, as now inserted in the General Laws, makes 
the Director of the Division of Employment Security responsible for the custody 
and disbursement of the ^'benefit fund" and to that extent you are now no longer 
liable for the improper management of the moneys which are to be paid as bene- 
fits to employees from the unemployment compensation fund. Nevertheless, you 
still have duties and responsibilities with regard to the unemployment compensa- 
tion fund in connection with making requisitions upon the federal treasury for 
money therefrom, transferring such money to the Director, and maintaining "a 
clearing account" described in section 50 (1). Furthermore, the term of the bond 
which you gave on January 15, 1941, is coincident with your term of office, which 
does not expire until January, 1943, and, with relation to your duties in connec- 
tion with said compensation fund, provides a safeguard from any possible derelic- 
tion not yet ascertained in the discharge of such duties which may conceivably 
have occurred. 

You state that it has been suggested in effect that the Legislature intended by 
enacting said section 59 to provide as security for the compensation fund and 
the administration account, in each case the existing special bond previously 
given in the sum of $25,000, and in addition the general bond which you gave 
as Treasurer under G. L. (Ter. Ed.) c. 10, § 2, in the sum of $100,000. This is 
not a correct construction of the statute. 

The Legislature, by providing specifically in said section 59 of the new chapter 
151 A that the State Treasurer, "in addition to the provisions contained in section 
two of chapter ten, shall be liable on the treasurer's bond for the faithful per- 
formance of his duties in connection with the unemployment compensation fund, 
. . . and the employment security administration account," has apparently con- 
strued the provisions of sections 39 and 42 of the earlier chapter 151 A as provid- 
ing that the liability of the Treasurer upon his general bond given under said 
chapter 10, section 2, did not cover his liability with relation to the last-mentioned 
fund and account. 

It appears from the language of the earlier chapter 151A, §§ 39 and 42, espe- 
cially in the light of the foregoing legislative construction, that the requirement 
in said earlier sections for "a separate and additional bond" to cover malfeasance 
by the Treasurer in connection with the two specifically named funds, precluded lia- 
bility for such malfeasance arising under the larger and general Treasurer's bond. 



P.D. 12. 37 

That being so, the Legisbture may not now by the terms of the new section 59 
add to the Habihty undertaken by the surety on the general bond written before 
the enactment of the present chapter 151A. 

It is a well-recognized princii)le of law that, under the provisions of the United 
States Constitution, which forbid legislative impairment of the obligation of a con- 
tract (U. S. Const. Art. 1, § 10), it is unconstitutional to add by statute to the 
liabilities assumed by a surety upon a pre-existing bond. Conant v. Newton, 126 
Mass. 105, 109; Wasser v. Congregation Agmlath Sholom, 262 Mass. 235, 237. To 
interpret said new section 59 as imposing liability for breaches of duty not so im- 
posed by law on January 15, 1941, when the Treasurer's general bond was executed, 
would be to give to the section an unconstitutional effect. 

By construing the section to mean that the two existing bonds relating to the 
specifically designated fund and account should remain in force and that, after 
the term of the present Treasurer, subsequent Treasurers should give one general 
bond to cover all the forms of liability now covered by the three existing bonds, 
a valid and constitutional enactment is seen to exist and the legislative purpose 
may be carried out effectively. Lorando v. Gethro, 228 Mass. 181, 190. 

It has been said by our Supreme Judicial Court in the case of Wilfred B. Keenan, 
Petitioner, 310 Mass. 166, that a statute "if fairly possible, is to be interpreted 'so 
as to avoid not only the conclusion that it is unconstitutional but also grave doubts 
upon that score.' United States v. Jin Fueij Hoy, 241 U. S. 394, 401; Swift v. 
Registrars of Voters of Quincy, 281 Mass. 271, 282." 

In accordance with this principle I advise you that the bonds covering the Un- 
employment Compensation Fund and the Unemployment Compensation Admin- 
istration Account should not be canceled but should be continued until the end of 
your term of office. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Department of Public Health — Approval of Sources of Water Supply for Munici- 
palities. 

Dec. 2, 1941. 
Dr. Pa XL J. Jakmauh, Commissioner of Public Health. 

Dear Sir: — You have asked my opinion upon the following question of law, 
the answer to which will affect the performance of the duties of your department 
with relation to its approval of new sources of water supply for municipalities 
within ten miles of the State House. 

"Has the Department of Public Health authority to approve a new source of 
water supply for a city or town any part of which is within ten miles of the State 
House if such city or tonm has been authorized by any act of the Legislature to 
establish additional sources of water supply within the limits of said city or towm?" 

I answer your question in the affirmative. 

You have informed me that you have now before you for approval the use of a 
recently completed well in the town of Weston as a permanent water supplj^; that 
the (juality of the water and the capacity of the well are such that your depart- 
ment is prepared to give its approval, if it is proper for it to do so. 

It would not be proper for your department to give such approval to the towTi 



38 P.D. 12. 

of Weston if the new well from which it is now proposed to take water upon a 
permanent as distinguished from an emergency basis is not one of the sources 
of water supply which the Legislature has authorized the said town to use. 

In Massachusetts the service of supplying water by municipalities to their in- 
habitants for domestic purposes has been regarded by our courts as so partaking 
of the nature of a business carried on for profit that it may be undertaken by a 
city or town only under legislative authority. Loring v. Commissioner of Public 
Works, 264 Mass. 460, 464; Pearl v. Revere, 219 Mass. 604. 

Accordingly, the Legislature has from time to time by statutes empowered 
various municipalities within ten miles of the State House, including the town of 
Weston, to take water for a water supply system for domestic purposes from cer- 
tain designated or authorized sources. In many of these statutes it was specified, 
as a condition precedent to the actual use of water from the authorized sources, 
that the ' ' approval ' ' of your department should first be obtained . The ' ' approval ' ' 
of your department, when referred to in this manner in such statutes, relates to 
an approval of the quality of the water from the standpoint of public health and 
is never used therein as synonymous with or as a substitute for a legislative author- 
ization to employ a designated source or sources of water supply as part of a mu- 
nicipal system. So it is provided in G. L. (Ter. Ed.) c. Ill, § 17, as amended: 

"... Towns and persons shall submit to said department for its advice and 
approval their proposed system of water supply or of the disposal of drainage or 
sewage, and no such system shall be established without such approval. ..." 

The approval of your department is not an authorization to resort to a desig- 
nated source of water supply, but is a necessary condition for the actual use of 
the water for domestic purposes. 

In the town of Weston the Weston Water Company was incorporated and 
authorized by St. 1896, c. 217, to take water from any source, including ground 
waters, within the totvv, and section 11 of said chapter authorized the town to 
acquire all the property, rights, privileges and franchises of the said Water Com- 
pany and to operate with the same a water supply system of its own for the bene- 
fit of its inhabitants. You inform me that the town did acquire such property, 
rights, privileges and franchises of said Water Company on July 1, 1921, and has 
since operated a water supply system. You advise me that the recently completed 
well which the town now desires to use as a water supply is within the town limits. 

Other municipalities within ten miles of the State House have been empowered 
to take water from various authorized sources by statutes either enacted before 
or since 1895. 

By chapter 488 of the Acts of 1895 the Legislature made provision for a metro- 
politan water supply and for the furnishing from it of water to various munici- 
palities, including those within ten miles of the State House. By section 23 of 
said chapter 488 (see G. L. (Ter. Ed.) c. 92, § 16) it was provided: 

"No towTi, except Hingham and Hull, any part of which is within ten miles of 
the state house, or water company owning a water pipe system in any such town 
shall, except in case of emergency, use for domestic purposes water from any 
source not now used by it except as provided in this chapter, or as shall hereafter 
be authorized by the legislature." 

(As said section 23 now appears in G. L. (Ter. Ed.) c. 92, § 16, the words "or as 
shall hereafter be authorized by the legislature" appear to have been omitted by 



P.D. 12. 39 

the compilers as being in the nature of surplusage ; the effect of the provisions of 
the section is not changed by such omission.) 

As a result of the above provisions of said chapter 488, after 1895 municipalities 
within ten miles of the State House could take water for permanent domestic 
purposes only from sources then actually used by them, unless the Legislature 
by si)ecific enactment authorized them to avail themselves of newly designated 
ones, and from the metropolitan water supply. This condition was continued in 
effect bj'^ the passage in 1941 of chapter 465, section 1, which further amended 
G. L. (Ter. Ed.) c. 40, § 38, as previously amended by St. 1938, c. 172, § 2. 

St. 1941, c. 727, an emergency act relative to furnishing water to towns, pro- 
vided further for the furnishing of water to municipalities from the metropolitan 
water supjily, and in section 3 set forth: 

"Any town havino- an established water system and the inadequacy of the water 
supply of which has been so reported by said department may, with the approval 
of said department, increase its supply of water from its own sources by taking 
water from authorized sources which are not already appropriated for the purposes 
of a public water supply: provided, that application for such approAal is made on 
or before June thirtieth, nineteen hundred and forty-three." 

The effect of said section 3 is to enlarge the sources now available to munici- 
paUties within ten miles of the State House and to permit them to take water from 
sources upon which they have been authorized to draw by legislation passed either 
before or since 1895, when an existing supply is inadequate and is so reported by 
the Department of Public Health. 

Your department should not aid in the development of any source, the use of 
which has not been authorized by the Legislature. However, when, as in the case 
of the town of Weston, there appears to be a source authorized by the Legislature 
other than the metropolitan water supply, your approval may be given if the 
quality of the water satisfies your department and a former established water 
system is determined by you to be inadequate. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Governor — Authority tu hill Vacancies in the Offices of Justice and Special Justice 
of District and Municipal Covrts. 

Dec. 5, 1941. 

His E.xcellency LE^■ERETT Saltonstall, Governor of the Commonwealth. 

Sir : — You have asked my opinion as to your authority, in view of the provisions 
of St. 1941, c. 664, to fill vacancies existing in the office of justice of the District 
Court of Chelsea and one of the two special justices of the Municipal Court of 
the Charlestown District. 

These two district courts, prior to the enactment of said chapter 664, each con- 
sisted of a justice and two special justices (G. L. (Ter. Ed.) c. 218, § 6, as amended). 

Said chapter 664 reads: 

SEfTioN 1. Section six of chapter two hundred and eighteen of the General 
Laws is herel)y amended by striking out the first paragraph, as ajjpearing in the 
Tercentenary Edition, and inserting in place thereof the following paragraph: — 
Each district court, except the municipal court of the city of Boston, shall consist 
of one justice and one special justice. 



40 P.D. 12. 

Section 2. This act shall not affect the tenure of ofRce of any special justice in 
office upon its passage. No vacancy in said office in any district court subject to 
this act, whether existing before its passage or occurring thereafter, shall be filled 
at any time when there is one special justice of such court in office. 

Section 3. This act shall take effect upon its passage. 

In my opinion, this statute does not limit your power to appoint as j^istice of a 
district court such person as you may select. I see no sound basis for construing 
this legislation as a requirement that the Governor shall appoint as justice of a 
district court to fill a vacancy one of the two special justices of such court. 

The title of the act has some bearing on the legislative intent in enacting it. 
That title expressly states that it is "An Act limiting the number of special jus- 
tices of certain district courts." 

In section 2 the word "office" is used four times, but only in reference to the 
"office" of a special justice. This is obvious in the first sentence of the section, 
in which the word "office" appears twice. In the second sentence this meaning 
is made clear by the accompanying word " said " — "said office." In no place where 
it appears has the word "office" any reference to the office of justice of the court. 
Said section 2 plainly provides that if a district court consists of a justice and two 
special justices, the Governor may not fill a vacancy in the office of special justice 
if the other special justice is still holding his position. The intent of the Legisla- 
ture in enacting this chapter was gradually to reduce the number of special jus- 
tices in the specified district courts from two to one, but to accomplish this result 
without affecting the tenure of office of those special justices who were occupying 
their positions at the time of the passage of the act. It simply forbids the filling 
of a vacancy in one of the offices of special justice if the other is still occupied. 
It has no reference to the office of justice of the court. 

With reference to the Municipr.l Court of the Charlestown District, you state 
that by reason of the death of one of the associate justices a vacancy was created 
prior to the effective date of chapter 664. In my opinion, it makes no difference 
whether the vacancy was created before or after chapter 664 became effective. 
The Governor, by the provisions of this chapter, is precluded from making an 
appointment to fill such a vacancy if the remaining special justiceship is not vacant. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Secretary of the Commonwealth — Notary Public — Conviction — Notice of For- 
feiture of Commission. 

Dec. 6, 1941. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — In a recent letter you inform me that on November 19, 1941, 
a selectman of a certain town was found guilty of larceny in connection with the 
performance of his duties, and that, pursuant to G. L. (Ter. Ed.) c. 268, § 8, the 
court, following the conxiction, ordered that the defendant forfeit his office and 
be forever disquahfied to hold any public office, trust or appointment under the 
Constitution or laws of the Commonwealth. 

You also inform me that at the time of said conviction said person held a com- 
mission as notary public, and you ask my opinion on the following question: 



P.D. 12. 41 

"Is it incumbent on the Secretary of State to inform an individual that his com- 
mission as notary pubHc has been forfeited by order of the court under the pro- 
visions of section 8 of chapter 268 of the General Laws?" 

In my opinion, there is no duty imposed on you by law to inform a notary public 
of the forfeiture of his connnission under the circumstances related. 

G. L. (Ter. Ed.) c. 268, § 8, provides, in part, that a "municipal officer who is 
finally convicted of committing, in connection with the performance of the duties 
of such office, the crime of larceny, embezzlement or obtaining money under false 
pretences shall, in addition to the penalty imposed by law for the punishment of 
such crime, forfeit his office and be forever disqualified to hold any public office, 
trust or appointment" under the Constitution or laws of the Commonwealth. 

The office of notary public is a public office under the Constitution and laws of 
this Commonwealth and within the sweep of the foregoing provisions with respect 
to forfeiture and disqualification. See Mass. Const. Amend. IV; G. L. (Ter. Ed.) 
c. 222, § 1. Mumford v. Coghlin, 249 Mass. 184, 188; Opinion of the Justices, 
150 Mass. 586, 589. 

Nothing contained in said G. L. (Ter. Ed.) c. 268, § 8, places any duty on the 
Secretary of State to inform one holding a commission as notary public of the 
forfeiture of his office as such or of his disqualification to hold such public oflSce, 
trust or appointment in the future. 

Certain notices to individuals holding commissions as notary public and other- 
wise are required by law in certain circumstances. Thus, G. L. (Ter. Ed.) c. 30, 
§ 12, provides that the Secretary shall forthwith notify a person who has failed to 
take and subscribe the oath of office to which he has been appointed that his 
appointment is void. G. L. (Ter. Ed.) c. 9, § 15, as amended by St. 1934, c. 19, 
provides as follows: 

"The secretary shall send by registered or insured mail to every justice of the 
peace or notary pubhc a notice of the time of expiration of his commission, not 
more than thirty nor less than fourteen days before such expiration." 

Obviously the quoted statute does not apply to the facts set forth by you because 
of the impossibility of complying with the time limits specified therein for the 
giv >;<'• of notice and because said statute refers in express terms to the "expiration" 
of the cv^mmission. "Expiration" as used in G. L. (Ter. Ed.) c. 9, § 15, means, in 
my opinion, termination of the office by lapse of time rather than by the commis- 
sion of acts which would work a forfeiture. See Oakley v. Schoonmaker, 15 Wendell 
(N. Y.) 226, 230; City of Williamsburg v. Weesner, 164 Ky. 769. 

There is no requirement of law that makes it incumbent on you to notify a 
notary public of the forfeiture of his office in the circumstances set forth in your 
letter. On the other hand, there is nothing in the law to prevent your sending such 
a notice. That procedure may well be deemed advisable in order to avoid result- 
ing complications if the individual presumed to act as a notary pubhc unaware 
that he had forfeited that office. However, this is a matter of policy which should 
be determined by you. 

Very truly yours, 

Robert T. Bushnell, Attorney GeneraL 



42 P.D. 12. 

Civil Service — Department of Public Health — Employees. 

Dec. 12, 1941. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have asked me whether the effect of the amendment of 
G. L. (Ter. Ed.) c. 17, by St. 1941, c. 725, is to include within the sweep of the 
Civil Semce Law all positions in the Department of Public Health, with the ex- 
ception of Commissioner. 

Section 1 of said chapter 725 repealed section 4 as it formerly appeared in said 
chapter 17 and inserted in place thereof a new section 4 reading: 

"There shall be in the department a division of sanatoria and such other divi- 
sions as the commissioner, with the approval of the public health council, maj- from 
time to tune determine. The commissioner may appoint a director of the division 
of sanatoria, and, subject to the approval of the public health council, shall appoint 
a director to take charge of every other division, and shall prescribe the duties of 
such other divisions. Every such director shall be subject to chapter thirty-one." 

The old section 4, which is superseded, read: 

"There shall be in the department a division of sanatoria and such other divi- 
sions as the commissioner may, with the approval of the public health council, from 
time to time determine. The commissioner may, subject to the approval of the 
governor and council, appoint and remove a director of the division of sanatoria, 
and, subject to the approval of the pubhc health council, shall appoint and may 
remove a director to take charge of every other division, and shall prescribe the 
duties of such other divisions. The compensation of directors of all divisions shall 
be fixed by the commissioner, subject to the approval of the governor and council." 

The effect of the amendment was to enable the Commissioner to appoint a Di- 
rector of the Division of Sanatoria without the approval of the Governor and 
Council and to make said Director and such other directors of divisions as are 
appointed subject to the provisions of the Civil Service Law. 

Section 2 of said chapter 725 of the Acts of 1941 struck out section 6 as formerly 
appearing in said chapter 17 and substituted therefor a new section 6, which reads 
as follows : 

"The commissioner may, with the approval of the public health council, ppo"it 
assistant directors of divisions and epidemiologists, inspectors and other necessary 
employees. Persons appointed hereunder shall be subject to chapter thirty-one." 

The superseded section 6 read: 

"The commissioner may, with the approval of the public health council, appoint 
and remove assistant directors of divisions and epidemiologists, who shall be ex- 
empt from chapter thirty-one, inspectors and other necessary employees." 

The effect of the new section is to bring \\dthin the provisions of the Civil Service 
Law assistant directors of divisions and epidemiologists, formerly exempted from 
such provisions, as well as inspectors and other necessary employees of the depart- 
ment who were formerly subject to the Civil Service Laws by force of the old 
section 6. 

Said chapter 725 did not amend sections 8 and 9 of said G. L. (Ter. Ed.) c. 17, 
which determined the institutions to be included in the Division of Sanatoria and 



P.D. 12. 43 

made special provision for the appointment of officers and employees in those in- 
stitutions which have been placed in such division, as distinguished from the 
employees of the Department of Public Health not attached to such institutions. 
Said sections 8 and 9 read : 

"Section 8. The division of sanatoria shall include the state sanatoria at Rut- 
land, North Reading, Lakeville and Westfield. 

Section 9. In addition to the persons employed under section six, the commis- 
sioner, Avith the approval of the public health council, may appoint a treasurer for 
each sanatorium, who shall give bond for the faithful performance of his duties, 
and physicians, assistants and employees necessary for the proper administration 
of the affairs of the institutions under the charge of the division and may incur all 
expenses necessary for the maintenance of the institutions." 

The enactment of said chapter 725 makes no change in the status of the em- 
ployees of the "Division of Sanatoria dealt with in section 9. Their relation to the 
Civil Service is the same now as before the enactment of said chapter 725. The 
provisions of the old section 6 and those of the new section 6 have no application 
to them, as they are dealt wath by force of said section 9 as a separate and dis- 
tinct class from the "other necessary employees" referred to in both the old and 
new section 6. 

These employees in the institutions within the Division of Sanatoria are not 
explicitly or impliedly exempted from the sweep of the Civil Service Law. Those 
who occupy positions falling within the classification of positions and employ- 
ments created by Rule 4 of the Civil Service Rules are subject to the provisions 
of the Civil Service Law, and those whose positions have not been classified by the 
said rules are not so subject. 

Accordingly, I answer your question by saying that the effect of the amend- 
ments made by St. 1941, c. 725, to G. L. (Ter. Ed.) c. 17, is to bring within the 
sweep of the Civil Service Law assistant directors of divisions, epidemiologists, in- 
spectors and other necessary employees of the Department of Public Health as 
such, and that no change with regard to Civil Service is worked in the status of the 
employees of the institutions in the Division of Sanatoria mentioned in said sec- 
tions 8 and 9. 

Very truly yours, 

Robert T. Bcshnell, Attorney General. 

State Board of Retirement — Officer of State Police — Rating Board. 

Dec. 13, 194L 
Hon. William E. Hurley, Chairman, State Board of Retirement. 

Dear Sir: — As chairman, ex officio, of the State Board of Retirement (G. L. 
(Ter. Ed.) c. 10, § 18) you have asked my opinion as to whether such Board has 
authority to disapprove an application for retirement by an officer of the Division 
of State Police when the "rating board" estabhshed by G. L. (Ter. Ed.) c. 32, 
§ 68B, inserted by St. 1939, c. 503, § 3, has reported in writing to the said Board 
that such officer "is physically . . . incapacitated for the performance of duty by 
reason of . . . illness incurred through no fault of his own in the actual perform- 
ance of duty, ..." 

I am of the opinion that your Board has no authority to disapprove such an 
application accompanied by such a report in writing. 



44 P.D. 12. 

G. L. (Ter. Ed.) c. 32, in the last two paragraphs of section 68A, and in sec- 
tion 68B, as inserted by St. 1939, c. 503, § 3, provides: 

"Section 68A. . . . 'Officer', an officer of the division of state police in the 
department of public safety appointed thereto under section six of chapter twenty- 
two on or after September first, nineteen hundred and twenty-one, or appointed 
thereto under section nine A of said chapter. 

'Rating board', a board having the powers and duties provided for in sections 
sixty-eight B and sixty-eight C, and consisting of the surgeon-general of the com- 
monwealth, the commissioner of public health and the commissioner of public 
safety, or a subordinate designated by any of them from time to time by a writing 
filed in the office of the state board of retirement. 

Section 68B. (1) An officer of the division of state police in the department of 
public safety shall be retired by the state board of retirement in case the rating 
board, after an examination of such officer by a registered physician appointed by 
it, shall report in writing to the state board of retirement that such officer is physi- 
cally or mentally incapacitated for the performance of duty by reason of (a), illness 
incurred through no fault of his own in the actual performance of duty, or (6), an 
injury resulting from an accident occurring during the performance and within the 
scope of his duty, and without contributory negligence on his part, and that such 
incapacity is likely to be permanent." 

This statute vests no authority in your Board to review a determination made 
by the rating board after examination of an officer by a registered physician ap- 
pointed by it and a written report thereon to your Board. 

If, after such an examination by a physician, the rating board reports in writing 
to your Board that the officer is physically or mentally incapacitated for duty by 
reason of illness or accident of the character described in clauses (a) or (b) respec- 
tively of said section 68B occasioned in the manner designated, in such clauses, the 
State Retirement Board by the terms of said section 68B is required to retire him. 

The fact that your Board considers the finding of the rating board incorrect, or 
that it would itself have made a different determination as a result of an inspection 
of the report of the examining physician, does not authorize your Board to refuse 
to make the requested retirement. The duty of making the determination as to 
the existence of the facts deemed by the Legislature to warrant retirement rests 
upon the rating board. Your Board is required to accept the rating board's deter- 
mination and to act thereon if it sets forth such facts as are designated as neces- 
sary to enable an officer to retire. 

You have called my attention to a written report made to you by the rating board 
in connection with an application for retirement by Officer Fitzgerald. You have 
asked me whether the fact that this report is signed not by any member of the 
rating board but by one Timothy C. Murphy, as "Recorder, State Police Retire- 
ment Rating Board," warrants your Board in not acting upon the report and re- 
fusing to retire Officer Fitzgerald. 

I am of the opinion that the written report should be signed by at least a majority 
of the members of the rating board and that the report filed with you in the present 
matter, which is not so signed, is not of such a character that you are required to 
act upon it. 

No provision is made in the applicable statute for the position of a "recorder" 
to the rating board and you are not required to assume that a report so signed is 
such "a report in writing" by the rating board as is designated by said section 68B, 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



P.D. 12. 45 

Civil Service — Call Firemen — Promotion — Reserve Fire Forces. 

Dec. 18, 1941. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have asked me if St. 1941, c. 38, entitled "An Act regulating 
the certification of names for promotion from the reserve to the regular fire force 
in certain cities," repeals the provisions of G. L. (Ter. Ed.) c. 48, § 36, which relate 
to the promotion of call firemen. 

In my opinion, G. L. (Ter. Ed.) c. 48, § 36, is inapplicable to cities which have 
reserve fire forces established pursuant to G. L. (Ter. Ed.) c. 48, §§ 59B-59D, 
inclusive. 

G. L. (Ter. Ed.) c. 48, § 36, provides, in substance, that any town which has 
accepted St. 1913, c. 487, and has a call or part call fire department, may in specified 
circumstances promote to membership in the permanent force, without civil service 
examination, persons then in the call or part call fire department who have served 
for a specified period of time and who are certified to be competent physically for 
the duty. While section 36 refers in terms to towns, it is applicable to cities as well. 
(See G. L. (Ter. Ed.) c. 4, § 7.) Its applicability to cities is specifically set forth 
in the basic statute from which section 36 derives and in all subsequent amendments 
thereto. (See St. 1913, c. 487; St. 1914, c. 138; Gen. St. 1916, c. 119; St. 1923, 
c. 109.) 

In 1932, chapter 31 of the General Laws dealing with civil service was amended 
by the insertion of section 19A (St. 1932, c. 146). The new section provided, in 
substance, that in each city having a reserve force of firemen established under 
G. L. (Ter. Ed.) c. 48, §§ 59B-59D, inclusive, appointments to the regular force 
should be made upon certification from the list of members of the reserve force of 
firemen. This provision, so far as it was applicable to a particular city, rendered 
inoperative, with respect to such city, the provisions of G. L. (Ter. Ed.) c. 48, § 36. 

Subsequent amendments to, or substitutions of, G. L. (Ter. Ed.) c. 31, § 19A 
(including St. 1941, c. 38, to which you referred), merely modified the specific 
procedure to be followed in connection with appointments to the regular fire forces 
of cities from the reserve forces thereof. These amendments to section 19A did 
not alter the prior situation as to the inapplicability of G. L. (Ter. Ed.) c. 48, 
§ 36, to cities having reserve forces established under sections 59B-59D, inclusive, 
of chapter 48. 

The net effect of this series of enactments is that in cities which have a reserve 
fire force established under the aforementioned statutes, appointments to the per- 
manent fire force must be made from the list of members of the reserve force and 
not from call firemen, as provided in G. L. (Ter. Ed.) c. 48, § 36. 

Nothing in St, 1941, c. 38, or in corresponding provisions of earlier statutes, 
impairs the applicability of said chapter 48, section 36, to towns or to cities hav- 
ing no such reserve fire forces. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



46 P.D. 12. 

Civil Service — Removal of Names from Eligible Lists — Certification of Names of 
Persons Seventy Years of Age. 

Dec. 23, 1941. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You inform me that you have adopted as your "office pohcy" 
two practices, and you ask my opinion upon three questions of law relative to the 
first of such practices. 

1. The first practice you state to be as follows: 

"Names of persons are to be removed from eligible lists upon reaching seventy 
years of age. Persons so removed should be notified forthwith." 

Your questions with relation to this practice are : 

"1. Whether or not this division has the right to remove names from eUgible 
lists when applicants reach the age of seventy." 

No provisions of the Civil Service Law (G. L. (Ter. Ed.) c. 31) or the rules and 
regulations made thereunder, authorize you to remove from eligible lists the names 
of applicants who reach the age of seventy. 

The provisions of G. L. (Ter. Ed.) c. 32, as amended, by requiring employees 
reaching the age of seventy to withdraw from the public service of the Common- 
wealth and of such of its political subdivisions as have retirement systems main- 
tained by virtue of such provisions, by implication prohibit the appointment to 
positions in such service of those who have attained the age of seventy. There 
are, however, some municipalities which have retirement systems maintained and 
governed by special acts under which employees may be continued in service for 
limited periods after attaining the age of seventy. As to such municipalities it 
cannot be said that the appointment of a person who has just attained the age of 
seventy is impliedly prohibited. See, as to Boston, St. 1922, c. 521 ; as to Newton, 
St. 1925, c. 355; as to Somerville, St. 1930, c. 184; as to Chelsea, St. 1931, c. 448; 
as to Everett, St. 1933, c. 223; as to Brookline, St. 1933, c. 299; as to Medford, 
St. 1934, c. 88; as to Quincy, St. 1934, c. 152; and as to Fitchburg, St. 1935, 
c. 450. 

It cannot properly be said that, by mere implication from the provisions of the 
various statutes relating to the retirement of persons in the different pubHc serv- 
ices at designated ages, the Legislature has vested in you the right of anticipating 
the duty of appointing officials to decline to appoint persons over the age of seventy 
where such duty exists, and the power to remoye from eligible lists the names of 
those applicants who reach the age of seventy. 

Your second and third questions read: 

"2. Whether or not we can refuse to certify for permanent positions persons on 
eligible lists in positions to be certified once they reach the age of seventy." 

"3. Whether or not we can refuse to certify for temporary positions persons on 
eligible lists in positions to be certified when they reach the age of seventy." 

The same considerations which I have outlined in relation to your first question 
impel me to say that you have no right to refuse to certify for positions persons 
who have attained the age of seventy, and in this connection it is immaterial 
whether the positions sought to be gained are permanent or temporary. 



P.D. 12. 47 

2. The second practice wliich you have adopted, and upon which you ask my 
opinion, you state to be as follows: 

"Names of persons who are receiviuji; old age assistance are to be removed from 
eligible lists. Check to be made with Welfare Department before certification is 
made of any person reaching age where eligible for such assistance." 

This practice is plainly improper and unlawful. No authority is vested in you 
by specific provision of any statute, rule or regulation, or by implication there- 
from, to remove the "names of persons who are receiving old age assistance . . . 
from eligible lists." 

A person may be entitled to receive old age assistance at the age of sixty-five. 
(G. L. (Ter. Ed.) c. 118A, § 1, as amended.) No provision of law proliibits a 
person who has been receiving such assistance from holding a public position. 
No implication arises from the fact that a person is receiving old age assistance 
that he is incapacitated or unqualified for public employment. 

\'ery truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Placing Municipal Position Within Terms of Civil Service Law — 

Public Office. 

Dec. 31, 1941. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir : — You have laid before me a vote of the Millville Municipal Finance 
Commission adopted on November 15, 1941, and signed by two of the three mem- 
bers. The Attorney General is a member of this Commission but was not at the 
meeting when the vote was adopted and did not participate in this action. 

The vote purports to establish the position of clerk in the Town of Millville as 
a civil service position and to request the Civil Service Commission to approve 
such vote and permit the position occupied by the designated incumbent to be 
under the protection of civil service. 

You have asked me whether you may consider this vote as fulfilling the require- 
ments of the Civil Service Law so that said position is now to be treated as within 
the provisions of said law. (G. L. (Ter. Ed.) c. 31, as amended.) 

In my opinion, this vote does not place said position within the classified civil 
service. 

The full text of the vote is as follows: 

"November 15, 1941. 

The MiUviUe Municipal Finance Commission in session on Friday, November 14, 
1941, by this vote establishes the position of Clerk in the Town of Millville, act- 
ing now for the Millville Municipal Finance Commission and filled by Sadie E. 
McManus as a Civil Service position incumbent since 1938, at a salary of $900, 
being the minimum grade of Junior Clerk <fe Typist. 

It was further voted to request the Civil Service Commission to approve this 
and permit through this vote the estal^lishment of the position occupied by Sadie 
E. McManus to be under the protection of the Civil Service. 

(Sgd.) Henry F. Long, 

Theodore N. Waddell, 
Millville Municipal Finance Commission." 

The Millville Municipal Finance Commission was established by St. 1939, 
c. 514, and consists of the Commissioner of Corporations and Taxation, the Attor- 



48 P.D. 12. 

ney General and the Director of the Division of Accounts in the Department of 
Corporations and Taxation. 

By said chapter 514 the Commission is given broad and exclusive powers to act 
for and to bind the town. In section 2 of said chapter 514 it is provided: 

"Until April twentieth, nineteen hundred and forty-four, the town of Millville 
shall have the capacity to act through and to be bound by the commission and not 
otherwise, except as hereinafter provided, and the commission shall have and exer- 
cise exclusively, so far as will conform to the provisions of this act, all rights, powers 
and duties now or hereafter conferred or imposed upon the inhabitants of said town 
and its officers, and the commission shall determine the amount that may be ex- 
pended for any purpose whatsoever and no liability shall be incurred in excess of 
the amount so determined, notwithstanding the common law or anj^ provision of 
statutory law to the contrary. The commission may exercise and perforin such 
rights, powers and duties through such agent or agents as it may designate. The 
commission, on behalf of the town, may issue bonds or notes of the town, but only 
with the approval of the governor and council. . . . The commission shall have 
the power of appointment of all agents hereunder and shall fix their compensation 
and assign to them such of the powers and duties of the commission as it shall 
specify; may purchase supplies, and may employ persons to do work for the town." 

The population of the town of Millville is not more than twelve thousand, and 
so is not authorized by G. L. (Ter. Ed.) c. 31, § 47, to accept the provisions of the 
Civil Service Law generally and to place all the positions in its service under civil 
service. 

Section 49A of said chapter 31, as amended by St. 1941, c. 414, provides a mode 
and manner by which a specific office or offices in a city or town may by petition 
of voters and a referendum be placed within the classified civil service. These 
provisions, however, relate only to an office or offices and are not applicable to a 
position or positions. 

The place established by the said vote is a position as distinguished from an 
ojjice, and the action of the Commission, assuming that it had authority to take 
effective action under said section 49A, is without power to bring such position 
within the classified civil service. 

In section 49A, with relation to the place or places which may be brought under 
the classified civil service by action of the voters of a municipality, the words 
"office" or "offices" are employed throughout and the word " position" doeB not 
appear therein. 

A distinction recognized by our courts exists between a public office and a public 
position or employment, as it is sometimes called. Broirn v. Russell, 166 Mass. 14; 
Attorney General v. Tillinghast, 203 Mass. 539, 543; O'Connell v. Retirement Board 
of Boston, 254 Mass. 404. 

The position of clerk in a town "at a salary of .$900," being the minimum grade 
of junior clerk and typist, as described in the said vote, is plainly a position and 
not an office. I Op. Atty. Gen. 340, 343. 

Accordingly, since no provision of said G. L. (Ter. Ed.) c. 31, § 49A, as amended, 
authorizes the placing in the classified civil service of a position as distinguished 
from an ojlice, it follows that the action which the said Commission attempted to 
take by its vote of November 15, 1941, was without effect. 

Very truly yours, 

RoiiERT T. BrsHNELL, Attorney General. 



P.D. 12. 49 

hoard of Registration in Embalming — Registrants Who Served in the Army — 

Renewal Fees. 

Dec. 31, 1941. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — The Board of Registration in Embalming and Funeral Di- 
recting through you has asked my opinion as to its authority to allow registered 
embalmers and funeral directors now serving in the United States Army to renew 
their annual registrations at the expiration of their service in the army instead of 
on November 30, 1941, which was determined by the said Board, under the au- 
thority vested in it by G. L. (Ter. Ed.) c. 112, § 83, as amended, as the date upon 
which the fee of five dollars for the annual renewal of the registration of an era- 
balmer or funeral director was required to be paid. 

The said Board not only has authority, but is required to allow those registrants 
who were serving in the United States Army on November 30, 1941, four months 
after the expiration of their service in which to pay such renewal fee. 

This is provided by St. 1941, c. 708, § 23, which reads: 

"Any license, permit or certificate of registration issued by any department, divi- 
sion, board, commission or officer of the commonwealth that expires while the 
holder thereof is serving in the military or naval service of the United States may 
be renewed within four months after the termination by such holder of such service, 
to the same extent as though the application for such renewal were made upon the 
expiration of such license, permit or certificate of registration; provided, that 
nothing in this section shall be construed to authorize such holder of a license, per- 
mit or certificate of registration to exercise any rights thereunder after its expira- 
tion and prior to its renewal as aforesaid." 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Call Fireinen — Promotional Examination. 

Dec. 31, 1941. 
Hon. Ulysses G. Lupien, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether that part of Civil Serv- 
ice Rule 28, section 3, which provides with' relation to call firemen that — 

"No examination shall be required for promotion of call men within the call 
force." — 

is abrogated by the enactment by the Legislature in 1939 of the provisions of the 
Civil Service Law which now appear as G. L. (Ter. Ed.) c. 31, § 20. 
Said section 20 provides in its pertinent portions: 

"Appointments and promotions in such police forces and fire forces of cities and 
towns as are within the classified civil service shall be made only by competitive civil 
service examination, except as otherwise proxided in this chapter, or in the rules of 
the commission relative to temporary or emergency appointments. ..." 

Call firemen are a part of the "fire forces" of cities and towns which employ 
them. G. L. (Ter. Ed.) c. 31, § 48, refers to them as such, and other statutes, while 
distinguishing them from "regular" members of a fire force or from the more 



50 P.D. 12. 

limited organizations of a fire department, treat them as members of "fire forces." 
(See G. L. (Ter. Ed.) c. 32, §§ 80-82, 85A, as amended.) 

G. L. (Ter. Ed.) c. 31, § 48, authorizes cities and towns to accept said chapter 31 
as to fire forces, including call men, or to accept it as to fire forces exclusive of call 
men. As to those municipalities which have not accepted the provisions of said 
chapter 31 for its call men as well as for its other fire forces, neither section 20 of 
chapter 31 nor said Rule 28, section 3, has any application to call men. 

As to those municipalities which have accepted said chapter 31 as to all their 
fire forces, including call men, I am of the opinion that the effect of said section 20 
is to render invalid the quoted part of said Rule 28, section 3. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Plumbers — Municipalities — Codes — Statute — Master Plumbers. 

Jan. 9, 1942. 
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 on the three following questions relating 
to St. 1941, c. 518: 

"1. Does the act, chapter 518, have the effect of law in municipahties that 
have accepted chapter 142 of the General Laws (meaning that they have recog- 
nized plumbing codes) immediately on October 24th, or must the act be specifically 
accepted by the municipal governing body before it becomes effective? 

2. Is the master plumber, or any person designated as a plumber in towns 
with no recognized code, relieved of personal liability if he compUes fully with 
the new act in the installation of a hot water tank which subsequently explodes? 
If the answer is 'no' to the foregoing question, whose personal liability is it? 

3. Is the new act applicable to all cities and towns in the Commonwealth 
irrespective of whether they have a plumbing code or not?" 

Your first and third questions may be answered together. In my opinion, St. 
1941, c. 518, is applicable to all cities and towns in the Commonwealth and be- 
came effective on October 24, 1941, in all such municipalities without any act of 
acceptance by them. 

St. 1941, c. 518, is entitled "An Act relative to the marking, construction and 
installation of hot water tanks," and amends G. L. (Ter. Ed.) c. 142. In con- 
junction with section 20 of chapter 142, the new act forms a comprehensive unit of 
legislation, dealing solely with "hot water tanks," a hot water tank being defined 
in the statute as any "range boiler, tank, vessel or container, ferrous or non-ferrous, 
in which water is to be heated or stored under pressure for domestic, culinary or 
sanitary purposes." 

Thus, section 1 of the new act substitutes a new section 17 in G. L. (Ter. Ed.) 
c. 142, forbidding the sale of hot water tanks unless they are marked in a prescribed 
manner with certain data specified in the section. Section 2 substitutes a new 
section 18 in said chapter, forbidding the repair, relocation, or installation and 
connection of hot water tanks unless they are constructed in the manner, and of 
the materials, specified therein. Section 3 of the new act substitutes a new sec- 
tion 19 in said chapter, prohibiting the installation and coimection of hot water 
tanks unless they are protected with safety devices specifically described in the 



P.D. 12. 51 

section. The fourth and last section adds a new section (§ 22) to G. L. (Ter, Ed.) 
c. 142, fixing penalties for viohitions of sections 17, 18 and 19, as amended, and 
requiring "inspectors of plumbing or other proper authorities" to cause those 
sections to be enforced. 

Accordingly, St. 1941, c. 518, defines the subject with which it deals, lays down 
detailed requirements regarding the same, provides for their enforcement, and 
specifies penalties for violations of its provisions. It is not expressly limited in 
its applicability to any particular municipality, nor does it in terms require ac- 
ceptance by a city or town as a condition precedent to its applicability to such city 
or town. The content of this statute is such as might reasonably be intended to 
be operative in all cities and towns throughout the Commonwealth. 

You refer in your first question to "municipalities that have accepted chapter 
142 of the General Laws (meaning that they have recognized plumbing codes)." 
I assume that you have in mind G. L. (Ter. Ed.) c. 142, § 2, which provides that 
certain sections of said chapter shall be operative only in those municipaUties in 
which they are accepted. However, this provision for acceptance applies only to 
the first sixteen sections of chapter 142, deahng with the adoption of plumbing 
regulations by cities and towns. Said section 2, therefore, does not affect the ap- 
plicability of sections 17 to 22 of chapter 142, and hence does not require accepts 
ance of sections 17, 18, 19 and 22 as a prerequisite to such sections becoming 
operative in a given municipality. 

My opinion as to the state-wide scope and operation of St. 1941, c. 518, is sup- 
ported by the opinion of one of my predecessors with respect to the scope and opera- 
tion of G. L. (Ter. Ed.) c. 142, §§ 17 to 19, inclusive, as they were in force prior 
to the current amendment. See Attorney General's Report, 1930, p. 71. 

Your remaining question, which is the second of the three submitted, requests 
my opinion as to the personal liabihty, if any, of a plumber or master plumber who 
complies fully wdth St. 1941, c. 518, in installing a hot water tank which subse- 
quently explodes. This question does not seek an opinion as to a matter which 
concerns the Board of State Examiners of Plumbers in the performance of its 
official duties, and for that reason I must respectfully dechne to answer it. I Op. 
Atty. Gen. 562; II Op. Atty. Gen. 100. 

Very truly yours, 

Robert T. Bishnell, Attorney General. 

Civil Service — Police Sergeants — Transjers. 

Jan. 12, 1942. 
The Civil Service Commission. 

Dear Sirs: — You have informed me that in 1929 a certain city by ordinance 
established the position of sergeant-mechanic in its police force; that thereafter 
the Chief of Police sent a requisition to the Civil Service Commission asking it 
to certify upon an eligible list of applicants for a sergeant's position the name of 
some person, who had special qualifications as a mechanic. 

You further advise me that of those seeking a sergeant's position the only one 
possessing the required special mechanical qualifications was No. 7 ou the ehgible 
list; .that such person was certified for the position and thereafter was appointed 
and has held the position as a permanent appointee since 1929, 



52 P.D. 12. 

It appears that the city attempted to aboHsh the position of sergeant-mechanic 
in 1939, but that as a result of a decision of the Supreme Judicial Court it was un- 
successful, and the original appointee, as you state, "has now been returned to 
duty as sergeant-mechanic, and the Director of Civil Service has received a re- 
quest from the Mayor to approve the transfer of the man in question from the 
position of sergeant-mechanic to that of sergeant. The Director has refused to 
approve this change." 

In relation to this situation you have asked my opinion upon three questions of 
law: 

1. The first question reads: 

"Was the appointment of this man as sergeant-mechanic primarily an appoint- 
ment as sergeant and, if the position of sergeant-mechanic were abolished, would 
he remain on the roster simply as a sergeant? (See G. L. c. 31, § 46G.)" 

In my opinion, the appointment in question was primarily an appointment as 
sergeant. Whether the particular individual to whom you refer would remain on 
the roster as sergeant if the position of sergeant-mechanic were abolished would 
depend on the matter of seniority. 

The position of sergeant-mechanic, established by the city at, as you state, the 
same rate of pay as attached to other positions of sergeants, was a sergeant's posi- 
tion, equally with that of the other sergeants' positions in the city. It was so 
treated by the Civil Service Commission in certifying an applicant from its eligible 
list for sergeants. The fact that the applicant certified and appointed was No. 7 on 
the eligible list indicates no different effect from his appointment than would have 
attached to the appointment of one of the three persons at the head of such list. 
By the terms of Civil Service Rule 13, section 3, the general provisions of the 
Rules with regard to the certification and appointment of those at the head of an 
eligible list are changed when it becomes necessary to select from a list an applicant 
who possesses, as in the instant case, certain special qualifications. Rule 13, sec- 
tion 3, which has been in force since 1922, is as follows: 

" If a requisition is made calling for persons having several qualifications ordi- 
narily covered by distinct classes, the Commissioner may, in his discretion, certify 
from any class persons possessing the qualifications called for." 

A person so selected under said Rule, even if he be No. 7 on an eligible list, is 
certified and appointed as properly and lawfully as one of the three at the head of 
a list under ordinary circumstances. 

The question of his remaining on the roster as a sergeant would depend, as I 
have said, upon the matter of seniority. 

Assuming that there are four other sergeants in the city in question with the 
person who is sergeant-mechanic, there are in all five sergeants' positions. 

If the position of sergeant-mechanic be abolished, there will be only four ser- 
geants' positions in the municipality, and as there are five sergeants, one of such 
sergeants will of necessity be separated from the service through no fault of his 
own. Under the circumstances, the sergeant to be separated from the service must 
be the last appointee among the group, and those four of the present five sergeants 
who have been longest in the service as sergeants will be retained. This conclusion 
is required by G. L. (Ter. Ed.) c. 31, § 46G, as amended, which reads: 



P.D. 12. 53 

" If the separation from service of persons in the classified service becomes neces- 
sary through no fault or delinquency of their own, they shall be separated from the 
service, and reinstated therein in the same position or in a position in the same class 
and grade as that formerly held by them, according to their seniority in the service 
so that the oldest employees in point of service shall be retained the longest, and 
reinstated first and before any reinstatement under section forty-six C or the certifi- 
cation of new names. Nothing in this section shall prevent reinstatements under 
section forty-six D or nnpair the preference provided for disabled veterans by sec- 
tion twenty-three." 

2. The second question reads: 

"Is the transfer of this man from the position of sergeant-mechanic to that of 
plain sergeant one that would require a request from the appointing power and the 
approval of the Civil Service Director under G. L. c. 31, § 16A, or is it a transfer 
that could be made by the Mayor or Chief of Police without reference to the Civil 
Service Commission?" 

A change from sergeant-mechanic to sergeant is a change in duties, rather than 
a transfer from one position to another within the meaning of "transfer" as used 
by the Legislature in G. L. (Ter. Ed.) c. 31, § 16A, which reads: 

"The director shall, with the approval of the commission, provide by rule for 
the transfer of persons within the classified service from offices or positions in one 
department to offices or positions in the same or different departments, and for 
the temporary transfer of such persons for a period not to exceed six months, with- 
out regard to classification if, in his opinion, such transfers will be in the public 
interest. No such transfer shall be made without the approval and consent of the 
appointing authority in the department or departments involved. Except as other- 
wise provided by law, any person duly certified for permanent employment and 
actually employed for at least one year in any position in the classified civil service 
may, after application in writing to the director by the appointing authority and 
with the consent of the director, be transferred to another similar position. No 
employee shall be permanently transferred from a position in one class to a position 
of higher rank or for which there are substantially dissimilar requirements for 
appointment unless he is appointed to the latter position after certification, in 
accordance with the provisions of this chapter and the rules made thereunder." 

It follows that if the person who is sergeant-mechanic is not the most recently 
appointed of the sergeants in the employ of the city in question, and if it is desired, 
either before the position of sergeant-mechanic is abolished or afterwards, to give 
him the duties and title of an ordinary sergeant, this may be done by the appro-' 
priate municipal authorities without reference to the Civil Service Commission or 
to the Director. 

3. Your third question reads: 



"Would this change from sergeant-mechanic to sergeant be regarded 
motion? (G. L. c. 31, § 20.)" 



as a pro- 



You have stated that the pay of a sergeant-mechanic and of a sergeant is the 
same. From the facts as you have stated them there does not appear to be any- 
thing which would lead to the conclusion that a change from sergeant-mechanic 
to sergeant is a promotion. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



54 P.D. 12. 

Board of Registration of Architects — Statute — Intent of Legislature. 

Jan. 12, 1942. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — In a recent communication you transmitted a request made 
by the Board of Registration of Architects for my opinion as to the proper con- 
struction of section 3 of St. 1941, c. 696, entitled "An Act for the establishment 
of a board of registration of architects and for the regulation of the practice of 
architecture." 

You stated with respect to that statute: 

"On page 4, section 3, line 1, reference is made to section 60D. In our opinion, 
this should refer to section 60B on page 2, which defines the general qualifications 
necessary for registration and establishes the registration fee. 

Section 60D refers only to renewals and is not applicable to the intent under 
section 3." 

In my opinion, the Board of Registration of Architects may properly proceed 
with its administration of the aforementioned statute as though the reference in 
St. 1941, c. 696, § 3, were to section 60B instead of section 60D. 

The pertinent rule of law is that "legislative enactments are not, any more 
than any other documents, to be defeated on account of errors, mistakes, or omis- 
sions. Where one word or figure has been erroneously used for another, or a word 
omitted, and the context affords the means of correction, the proper word or 
figure will be deemed substituted or supplied." McLendon v. Columbia, 101 So. 
Car. 48, 5 A. L. R. 990, and note, 997; Coney v. Topeka, 96 Kan. 46; People v. 
Clute, 50 N. Y. 451; Claire v. State, 68 Ind. 25; Lowell v. Washington County R. 
Co., 90 Me. 80; People v. lord, 9 N. Y. App. Div. 458; Richards v. State, 65 Neb. 
808; State v. Cross, ^ W. Va. 315. 

An examination of the statute now under consideration discloses beyond ques- 
tion the real intent of the Legislature Avith respect to the section intended to be 
referred to in St. 1941, c. 696, § 3. Thus, section 2 of chapter 696 inserts, in chap- 
ter 112 of the General Laws, sections 60A to 60J, inclusive. Section 60B specifies 
the requirements with respect to the citizenship, age and character of persons who 
may apply for registration as architects. Section 60C defines technical qualifica- 
tions to be required of applicants for registration and the methods whereby the 
presence of such qualifications may be ascertained by the board of registration. 
Section 60D provides for the mechanics of re-registration of architects who have 
once been registered by the newly created board. 

Section 3 of chapter 696 of the Acts of 1941 contains provisions for the regis- 
tration of architects who apply for registration prior to January 1, 1943. This 
section relaxes, for the benefit of persons "complying with section sixty D" and 
applying for registration prior to that date, some of the requirements of section 
60C. However, since section 60D refers to the mechanics of re-registration, it is 
obvious that the Legislature did not intend to require compliance with the pro- 
visions of that section as a prerequisite to original registration prior to January 1, 
1943, under section 3. A careful examination of the entire statute makes it clear 
that significance can be given to the provisions of section 3 only by construing 
the clause "person complying with section sixty D" as though it read "person 



\ 



P.D. 12. ,, 

complying with section sixty B." In my opinion, the statute must be so con- 
strued. 

My conclusion as to the legislative intent, drawn from an examination of the 
entire statute, is confirmed by reference to the legislative history of the act. St 
1941, c. 696, derives from House BiU No. 2448. Section 3 of the current enact- 
ment was originally section 87RR of House Bill No. 2448, and in that section 
reference was made to persons complying with section 87QQ. As renumbered in 
tiie enacted law, the provisions of section 87QQ are found in section 60B. It is 
obvious, therefore, that the reference in section 3 of chapter 696 should have been 
to section 60B and not to section 60D. 

Very truly yours, 

Robert T. Blshnell, Attorney General. 

Lease — Authority of Commission to Acquire Land by Leasing ~ Acceptance of 
Bond for Conveyance of Land. 

... , ,, Jan. 14, 1942. 

n achusett Mountain State Reservation Commission. 

Dear Sirs: — You have requested my opinion on the following question: 

"Has the Wachusett Mountain State Reservation Commission the legal ri-ht 
l^hfl / lease for the use of approximately sixty acres of privatelv owned land 
which adjoins the State Reservation? 

The Wachusett Mountain State Reservation Commission was established by 
St. 1899, c. 378. Section 2 of said act is as follows: 

'•The commission is hereby authorized and directed to take, by purchase gift 
or otherxvnse, land not exceeding three thousand acres in extent, situate on and ab?ut 
Wachusett mountain in the towns of Princeton and Westminster, and the land 

flT^ff/'i?'' ^h^P^^^-^-^r' °^,*^^' ^'* ^^^" ^^ '^^^^^•^ ^s the Wachusett Moun 
»W/A .fl/^f" T^'?/'-" ^n^v' to the same shall be and remain in the Common- 
ivealtli oj Massachusetts. (Italics mine.) 

Section 4 of said act is as follows: 

Mn,yrl}!in'''5t'^i?'r shall ha^•e the same powers to acquire lands for the Wachusett 
IMountain State Reservation which are given to the metropohtan park commis- 
sion established by chapter four hundred and seven of the acts of the 3 ear ek teen 

L'Slhall'hP viT'r' ^n ir^ ""''' "^ amendment thereof or supplementarv thereto! 
and shall be vested vvith tull power and authority to care for. protect and'maintain 
the same m behalf of the Commonwealth." niamiain 

Your particular attention is called to the last sentence in section 2. This sentence 
appears to limit your power and authority to the acquisition of land in such manner 
that the title in the fii-st instance shall be and shall thereafter remain in the Com- 
monwealth of Massachusetts. G. L. (Ter. Ed.) c. 92, §§ 77 to 80 inclusive, and § 86 
all as amended, set forth the powers of the Metropolitan Park Commission now- 
called the Metropolitan District Commission, to acquire lands. I call your atten- 
tion to the fact that these powers granted to the Metropolitan District Commission 
do not include the limitation found in section 2 of the act estabhshing your Com- 
mission, namely, that the title to the lands acquired shall be and remain in the Com- 



56 PD. 12. 

monwealth of Massachusetts. It therefore appears that the provision that the 
title be and remain in the Commonwealth of Massachusetts is peculiar to the act 
establishing your Commission. The General Court apparently intended you to 
have the same powers to acquire lands for the Wachusett Mountain State Reser- 
vation as are given to the Metropolitan District Commission, but expressly subject 
to the limitation that the title to the same shall be and remain in the Common- 
wealth of Massachusetts. 

This same provision as to title appears in each of the following acts and resolves 
providing for the acquisition of additional land for the purposes of the reservation. 
St. 1901, c. 496; St. 1906, c. 512. Res. 1918, c. 39, is the only legislation providing 
for the purchase of additional land which does not expressly include the provision 
that title thereto shall be and remain in the Commonwealth. It may well be that 
the General Court felt this principle had been repeated so often there was no need 
of further repetition. The acts, special acts and resolves of the General Court from 
1899 through 1941 have been examined. The methods provided by St. 1899, c. 378, 
for the acquisition of land by your Commission do not appear to have been changed 
or amended. 

Since a lease of sixty acres of privately owned land adjoining the State reserva- 
tion would not vest title to the land in the Commonwealth of Massachusetts in the 
first instance and would not cause title to remain in the Commonwealth thereafter, 
it appears that you have no authority to enter into such a lease. Your Commission 
is empowered to spend money for care and maintenance of the reservation. The 
authority for such expenditures appears to have been granted to you on the assump- 
tion that the money appropriated would be spent on property, the title to which 
was and would remain in the Commonwealth of Massachusetts, and, therefore, did 
not contemplate such expenditures on leased land, the benefits of which would 
revert to the lessor at the end of the term of the lease. 

While you lack authority to lease the property in question, there appears to be 
another method whereby you may be able to acquire it without paying the purchase 
price at the present time. G. L. (Ter. Ed.) c. 92, § 79, gives the Metropolitan Dis- 
trict Commission power to acquire land and rights in land by purchase, gift, devise, 
or eminent domain, or to take bonds for conveyance thereof. If you were to ac- 
quire said sixty acres of land by first obtaining a bond for conveyance thereof, such 
procedure would appear to satisfy the requirement set forth in the last sentence of 
St. 1899, c. 378, § 2. The taking of a bond for conveyance of the parcel looks to the 
acquisition of the title. The bond for the conveyance would be a preliminary step 
in acquiring the title. After such a title had been acquired it would remain in the 
Commonwealth. Therefore, acquisition by first taking a bond for the conveyance 
would appear to fall within the powers granted to you by the General Court. 

Of course the acquisition of the adjoining sixty acres in question should not in 
any event cause the reservation to exceed the limit of three thousand acres estab- 
lished by St. 1899, c. 378, plus the later increases authorized by St. 1901, c. 496 
(125,000 for additional land and conditioning mountain roadway), by St. 1906, 
c. 512 ($5000 for additional land), and by Res. 1918, c. 39 and Spec. St. 1918, c. 149 
for additional land). 

Yours very truly, 

Robert T. Bushnell, Attorneij General. 



P.D. 12. 57 

Motor Vehicle — Title — Time of Passing — Contract of Sale. 

Jan. 15, 1942. 
Hon. Herman A. M\cDonald, Commissioner of Public Works. 

Dear Sir: — You have requested my opinion as to the time when title to an 
automobile passes from the seller to a buyer. 

It appears from your letter making the request that it is not sought in connec- 
tion with the performance of any of your duties but for the purpose of aiding 
Massachusetts automobile dealers to clarify an existing situation occasioned by 
an order of the federal authorities prohibiting the delivery of automobiles to 
vendees after January 1, 1942. 

It has been the practice of my predecessors in office for many years, to decline 
to render opinions which do not deal with duties to be performed by the official 
requesting an opinion. (II Op. Atty. Gen. 100.) This is a salutary practice and 
one to which I have adhered. 

In the present instance I realize the extent of the burden which the federal order 
places upon the legitimate business of automobile dealers and I deem it my duty 
to give them through you such assistance as I may, in so far as there may be no 
interference with the effective administration of all measures tending toward the 
vigorous prosecution of the war. It is difficult to perceive how my opinion with 
respect to a relatively simple question concerning the civil law of sales can be 
helpful to Massachusetts automobile dealers. However, upon the urgent repre- 
sentations of a representative of such dealers that my opinion may be of help to 
them in the existing emergency, I am complying with your request. 

The uniform sales act, in force in many states of the Union, as embodied in 
G. L. (Ter. Ed.) c. 106, §§ 3-64, provides in section 20: 

"(1) If the contract is to sell specific or ascertained goods, the property therein 
passes to the buyer at such time as the parties to the contract intend. 

(2) For the purpose of ascertaining the intention of the parties, regard shall be 
had to the terms of the contract, the conduct of the parties, usages of trade, and 
the circumstances of the case." 

Section 21, in its applicable parts, provides: 

"Unless a different intention appears, the following rules for ascertaining the 
intention of the parties as to the time when the property in the goods is to pass to 
the buyer shall govern : 

Rule 1. If there is an unconditional contract to sell specific goods, in a deliver- 
able state, the property in the goods passes to the buyer when the contract is made, 
and it is unmaterial whether the time of payment or the time of delivery, or both, 
be postponed. 

Rule 2. If there is a (contract to sell specified goods and the seller is bound to do 

something to the goods for the purpose of putting them into a deliverable state, 

the property does not pass until such thing be done. 

i> 

From the foregoing statutory provisions it is plain that the time when title to an 
ascertained article of merchandise, such as a particular automobile selected by or 
allotted to a buyer, passes is determined by the intention of the parties to the 
transaction. Brush v. .\eu- Bedford, 250 Mass. 543, 545; Scofield v. Barowsky, 
249 Mass. 1. 



58 , P.D. 12. 

When there is an unconditional contract to sell such an automobile which is 
in a condition for delivery, title passes to the buyer when the contract of sale is 
made, regardless of when payment is to be made or delivery taken. If something 
still remains to be done to such an automobile before it is ready for delivery, title 
will pass only when it has been made ready. Both these rules prevail only when 
the parties to the contracts have not actually agreed that title shall pass at some 
other time. Levinson v. Connors, 269 Mass. 209; Bandy v. Hardina, 216 Mass. 
44, 47; Hecht v. Boston Wharf €0.220 Mass. 397; Chickering d- Sons v. M. Steinert 
d- Sons, 278 Mass. 156. 

In each of the five illustrative, hypothetical cases of sales of automobiles to which 
you have called my attention in a memorandum annexed to the request submitted 
to me it appears that a particular car has been selected or assigned to a buyer by 
an automobile dealer and a contract of sale made, the buyer actually making pay- 
ment, or a deposit, or delivery of another car in trade. No facts appear tending 
to show any intent on the part of the parties to the transaction that title shall not 
pass at the time of making the contract of sale. 

It is plain that in each of these specific cases stated by you, title passed to the 
buyer at the time the contract of sale was entered into, either orallj'^ or in writing, 
irrespective of the fact that in certain of the cases stated the buyer was not by 
agreement to take delivery until January second. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Plumbers — Licenses — Examinations — Credit to Applicants Who Served in Army 

or Navy. 

Jan. 20, 1942. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — On behalf of the State Board of Examiners of Plumbers, you 
have asked my opinion upon the following question: 

" Does chapter 317 of the Acts of 1919 (An Act relative to the granting of plumb- 
ers' licenses to certain soldiers and sailors) still apply to applicants for licenses who 
are now serving in the army or navy of the United States during the present war? " 

I answer your question in the affirmative. 
Gen. 8t. 1919, c. 317, § 1, reads: 

"The state examiners of plumbers are hereby directed to grant a credit of five 
per cent to the examination standing of each applicant who has served in the army 
or navy of the United States in time of war and has been honorably discharged or 
released from active duty. This act shall apply to all applicants for examination 
by them who have taken the examination subsequently to the first da\- of January 
in the year nineteen hundred and nineteen and before the date on which this act 
takes effect, and to all applicants whose applications are hereafter filed within one 
year of their discharge or release as aforesaid." 

The foregoing statute is not limited by its terms to applicants for licenses who 
served in the army or navy in time of war before the enactment of the statute. 
It is of general prospective effect. The phrase in the statute "who has served" 
does not refer to a service prior to 1919, but describes service rendered by an ai> 
plicant at any time prior to an examination. 



P.D. 12. 59 

If and when any person now serving in the army or navy in the present war 
takes an examination for a plumber's license, he will be entitled to the credit of 
five per cent provided for by the statute. , 

Very truly yours, 

Robert T. Bishnell, Attorney General. 

Board of Parole — Office — Approval of Accowits. 

Jax. 20, 1942. 
Mr. Walter S. Morgan, Comptroller. 

Dear Sir: — You have asked my opinion upon the two following questions: 

" (1) Does the Board of Parole as created by General Laws (Ter. Ed.) chapter 27, 
section 5, as amended, constitute an office within the meaning of chapter 29, sec- 
tion 20, so that I can accept, upon its accounts or demands submitted to me for 
pa\Tnent, the approval of the majority of its members? 

(2) If the answer to the previous question is in the negative, how should such 
accounts or demands be approved that I may put them in line for payment?" 

I answer your first question in the affirmative. Since your first question is so 
answered, your second question does not require an answer. 
G. L. (Ter. Ed.) c. 29, § 20, is as follows: 

"No account or demand requiring the certificate of the comptroller or warrant 
of the governor shall be paid from an appropriation unless it has been authorized 
and approved by the head of the department or office for which it was contracted ; 
nor shall any appropriation be used for expenses, except gratuities and special 
allowances by the general court, unless full and properly, approved vouchers there- 
for ha\e been filed with the comptroller.'' 

Pub. Sts. c. 16, § 29, contained provisions similar to those above quoted, but 
the word "bureau" was employed therein in place of the word "office" now ap- 
pearing in line 4 of said section 20 in the phrase ''the department or office." 

Rev. Laws, c. 6, § 30, also contained provisions similar to those of said section 
20, but employed the word "board," instead of the word "bureau," in place of 
the word "office" as now appearing in line 4 of said section 20. 

The words "office" and "offices" are employed in contradistinction to "depart- 
ments" in section 5A and section 29, as amended, of said chapter 29. 

I am of the opinion that as used in said section 20, line 4, the word "office" in 
the phrase "the department or office" means a board either outside one of the 
departments of the Commonwealth or, if i)laced within one of such departments, 
expressly or by implication removed from the control of the head of a department. 

G. L. (Ter. Ed.) c. 27, § 5, as amended by St. 1937, c. 399, with relation to the 
Department of Correction and the Parole Board, provided; 

'There shall be in the department a parole board, consisting of fi\e members, 
two of whom shall l)e women. . . . 

With the approval of the commissioner, said board may expend annually from 
the appropriation for contingent and other expenses of the department a sum not 
exceeding two hundred dollars for examination bj- physicians of prisoners whose 
cases come before said Ijoard for action." 

Section 4 of said chapter 27 provided that the Commissioner of Correction should 
appoint the agents of the Parole Board and should approve their bills for expei\ses. 



60 P.D. 12. 

In 1941, by chapter 690, the Legislature made new provisions with respect to 
the Parole Board by repealing said section 4 and inserting a new section 5A in 
said chapter 27. This new section authorized the Parole Board itself to appoint 
employees and agents. Said new section further provided that the expenses of 
such agents shall be paid after their bills "have been approved by said board,'' 
and also provided that the Commissioner of Correction shall require one of the 
Deputy Commissioners to supervise the work of such of the agents, employees 
and parolees as the board may designate "subject lo the direction of the board." 

By section 8 of said chapter 690 the Legislature further provided that agents 
and other employees of the Department of Correction, assigned by it to matters 
relating to parole, should be transferred to serve under the Parole Board. 

It is plain from the action of the Legislature in repealing said section 4 of chap- 
ter 27, and enacting the provisions of the new section 5A of chapter 27, that the 
Parole Board is removed from the control of the Department of Correction or its 
Commissioner. 

It follows that since the Parole Board may properly be termed an "office," as 
the quoted word is used in G. L. (Ter. Ed.) c. 29, § 20, approval of its accounts 
or demands by the Board should be accepted by you as in compliance with the 
provisions of said section 20. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Pardon — Records of Convictions in Office of Commissioner of Probation. 

Jan. 21, 1942. 
Hon. Albert B. Carter, Commissioner of Probation. 

Dear Sir: — You have informed me that a certain person was, on March 11, 
1920, convicted of larceny and sentenced to eighteen months in a House of Cor- 
rection; that on December 17, 1941, the Governor, with the advice and consent 
of the Council, granted to him a full and complete pardon for the offense. 

You advise me that this person has requested "that the foregoing offense be 
expunged from the record information in this office forwarded by the probation 
offices under General Laws, chapter 276, sections 99-100." 

You have asked my opinion upon the following questions: 

"1. Does such a full and complete pardon wipe out the record which the recipient 
has incurred?" 

I answer this question in the negative. 

Although a full and complete pardon is regarded as blotting out the determina- 
tion of guilt involved in the conviction, it does not obliterate existing facts. The 
record of the recipient of the pardon is not changed or altered concerning matters 
and proceedings which have actually occurred, except in so far as the effect of the 
determination of guilt which is a part of such record is concerned. 

Your second question is : 

"2. Should this office expunge such record information from its record?" 

I answer this question in the negative. 

G. L. (Ter. Ed.) c. 276, §§ 99 and 100, provide for the collection of data by the 
Board of Probation and the keeping of records of judicial proceedings connected 



P.D. 12. 61 

with the work of probation officers and of said Board under rules and regulations 
made by it. No provision of the statutes relating to your Board requires the ex- 
punging of such record information from your files under any particular circum- 
stances, and no such requirement arises by implication from enactments concern- 
ing pardons or from the fact of the granting of a pardon. 
Your third (luestion is: 

"3. Should this office only note the fact of the pardon on the record in its files?" 

It is the duty of your Board, for the purpose of keeping its records in proper 
form and in justice to the recipient of a pardon, to note the fact of the granting 
of the pardon on the record in its files relating to the recipient. 

\"ery truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Classification Plans for Municipalities — Authority of Director — 

Promotional Examination . 

Jan. 21, 1942. 
Commissioners of Civil Service. 

Gentlemen: — You have asked me four questions involving the interpretation 
and application of G. L. (Ter. Ed.) c. 31, § 2A (b), which reads: 

''In addition to other duties imposed by this chapter and chapter thirteen, the 
director shall — ... 

(b) Establish, with the approval of the commission, classification plans for all 
cities and towns subject to the provisions of this chapter;" 

From a supplementary memorandum by the Director of Civil Service attached 
to your request, it appears that questions have arisen at this time in connection 
with a classification plan made by him of the positions of municipal employees in 
the City of Springfield. While the problems raised by your request were under 
consideration by this department, a Springfield attorney, representing some of the 
employees who are or may be affected by the classification plan and subsequent 
action taken in connection therewith, conferred with members of my staff. Since 
then the attorney has instituted litigation seeking to invalidate the classification 
plan which has been made for Springfield, and to prevent anj^ action being taken 
under it. 

Becau.se of this situation I deem it in the public interest to answer your (juestions 
briefly, without setting forth a detailed analysis of the pertinent legal considera- 
tions leading to my conclusion. 

Your first question reads : 

"Has the Director of Civil Service, with the approval of the Conunission, the 
right to establish classification plans for any city or town where Civil Service ap- 
plies in the Commonwealth, under G. L. c. 31, § 2A (b), without the a))proval of 
the Ciovernor and Council?" 

I an.swer this (juestion in the affirmative. The provisions of G. L. (Ter. Ed.) 
c. 31, § 2A (b), authorize the Director, with the approval of the Commission, to 
establish " cla.ssification plans for all cities and towns." The (|Uoted phrase does 
not limit the Director to establish a single plan which shall be applicable to each 



62 P.D. 12. 

and eveiy city or town, but authorizes him to establish such a plan for any mu- 
nicipality according to its peculiar requirements. It is not required that the estab- 
lishment of such a plan or plans shall have the approval of the Governor and 
Council. 

Your second question reads : 

"In establishing these classification plans under G. L. c. 31, § 2A (6), is it neces- 
sary that they conform with the classification set up by Civil Service Rule 4? ' ' 

The phraseology of the statute is not wholly clear in this respect but I am of 
the opinion that the "classification plans" established by the Director are not 
required to conform with the classes and grades established by the classification 
made in the rules of the Commission. 

Your third question reads: 

"What limitation, if any, does G. L. c. 31, § 3, place upon the right of the Direc- 
tor of Civil Service, with the approval of the Commission, to establish classification 
plans as provided in section 2A (b) thereof?" 

This question as put by you is very broad. It does not refer to any particular 
limitation which may be involved nor to any which is required to be considered 
in the performance of any duty at the present time. This being so, the Attorney 
General must properly refrain from attempting at this time to answer the ques- 
tion in its present form. 

Your fourth question reads: 

"Upon the establishment of classification plans with the approval of the Commis- 
sion under G. L. c. 31, § 2A (6), has the Director of Civil Service the right to deter- 
mine whether an employee whose position has been reclassified to a higher grade 
in accordance with the duties performed shall be required to take an examination 
for promotion under G. L. c. 31, § 15?" 

G. L. (Ter. Ed.) c. 31, § 15, provides, in part: 

"No person shall be appointed or promoted to any position in the classified ci\il 
serAace 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 thereunder." 

Rule 28 of the Rules and Regulations of your Commission entitled "Promotion," 
provides, in part: 

"1. In the Official Service, a promotion from one grade, as fixed Ijy the rules or 
determined by the Commissioner, to another grade in the same class, shall not l)e 
valid until the candidate or candidates for promotion shall have been subjected 
to a competitive or non-competitive examination, as the Commissioner may decide, 
except as otherwise required by statute. 

2. So far as practicable, such promotions shall be made by successive grades; 
and no person shall be designated for promotion or examined until he shall ha\e 
served at least six months in the lower position except by special order of the Com- 
missioner." 

While the matter is not entirely without doubt and although the pi'ovisions of 
G. L. (Ter. Ed.) c. 31, §§ 2A and 3, and the terms of the Civil Ser\dce Rules are 
in some respects ambiguous, nevertheless I am of the opinion that the Director , 



P.D. 12. 63 

upon the establishment of an approved classification plan or plans, has the right 
to determine whether an employee, whose position has been classified in a higher 
grade than formerly, in accordance with the duties performed, shall be required 
to take an examination for promotion under said Rule 28. 

\'ery truly yours, 

Roi^ERT T. BrsHNELL, Attorney General. 



Department of Mental Health — Commissioner — Travel of Patients Who Are 

Enemy Aliens. 

Jan. 22, 1942. 
Dr. ClU'Ton T. Perkins, Commissioner of Mental Health. 

Dear Sir: — You have asked me to advise you as to your duties under the 
laws of the United States, with relation to the travel of such of the patients in the 
institutions under your department as are deported to other states or permitted 
to go from an institution to some other place within the Commonwealth. 

It is your duty to notif}' the office of the United States Attorney for the District 
of Massachusetts, at Boston, whenever it is desired to have a patient, who is an 
enemy alien, travel from an institution to another place either inside or outside 
Massachusetts, and to obtain a permit authorizing such travel before such patient 
is permitted to leave an institution. 

The President of the United States, by Proclamations 2525-2527, inclusive, 
made on December 8 and 11, 1941, under authority of 50 U. S. C. §§ 21-24, pro- 
vided that "with respect to the continental United States, ... an alien enemy 
shall not change his place of abode ... or otherwise travel or move from place 
to place without full compliance with any such regulations as the Attorney Gen- 
eral of the United States may, from time to time, make and declare.'' In these 
proclamations citizens of Japan, Germany and Italy were specifically designated as 
enemy aliens. 

The United States Attorney for this district advises us that the regulations 
made by the Attorney General under these proclamations, the text of which is 
not yet available to us, include as enemy aliens citizens of what were Austria and 
Hungary, as well as citizens of Japan, Germany and Italy, but not citizens of 
other coimtries. The regulations further provide that any foreign citizen must 
obtain a permit from a United States Attorney in one of the Federal districts 
before he may travel from one place to another within the United States. 

\>ry truly yours, 

Robert T. Bi shxell, Atiorneii General. 



State Retirement Board — Coidrlbutions from .Members — Military or Saval Leave. 

Jan. 23, 1942. 
Hon. William E. Hi rley. Treasurer and Receiver General. 

De.\r Sir: — You have informed me that: 

'"Many of our employees who are now in military service have been contributing 
from their own funds the monthly assessment in the State Retirement System and 
some of these employees desire to continue their contril)utions as 3' < interest is 
guaranteed on these funds.'' 



64 P.D. 12. 

You have asked my opinion upon two questions. 
Your first question is: 

"May the State Retirement Board continue to accept contributions from mem- 
bers who are on miUtary or naval leave?" 

I am of the opinion that the State Retirement Board may not accept contribu- 
tions from members of the State Retirement System who have left the service of 
the Commonwealth since January 1, 1940, or who may hereafter leave it, for the 
purpose of serving in the military or naval forces of the United States and who 
do so serve or are rejected for such service, until their re-employment in the service 
of the Commonwealth. 

St. 1941, c. 708, § 1, provides that any person who, on or after January 1, 1940, 
terminates his service with the Commonwealth for the purpose of serving in the 
United States Army or Navy, and so serves or is rejected for such service, shall 
be deemed to be or to have been on leave of absence and not to have resigned from 
his office until one year from the termination of his military or naval service. 

Section 8 of said chapter 708 provides that no person referred to in section 1, 
who has been or is separated from his office while a member of the State Retire- 
ment System, shall be considered to have terminated his membership in such 
system until one year from the termination of his military service. 

Section 9 of said chapter 708 provides that any person referred to in section 1, 
when reinstated or re-employed in the service of the Commonwealth, shall have 
the period of his military or naval service credited to him as creditable service 
under the retirement system, and that the Commonwealth shall pay into the 
retirement system the amount which such person would have contributed if his 
employment had not been interrupted by his military or naval service. 

It is plain from these statutory provisions, particularly from those which provide 
for the payment by the Commonwealth of those contributions to the system which 
an employee would have made himself if he had not left to enter the army or navy, 
that it is the intent of the statute that an employee himself shall not continue to 
make contributions while in the army or navy. 

Your second question is: i 

"Shall contributions made by members of the State Retirement system who are 
on military or naval leave and who made contributions prior to October 29, 1941, 
be refunded by the State Retirement Board?" 

I am of the opinion that the contributions made by members of the system who 
are on leave of absence under the provisions of said St. 1941, c. 708, § 1, should be 
refunded. 

Since, as I have indicated, it is the intent of the statute that the Commonwealth 
itself shall ultimately pay the contributions otherwise due from members of the 
system in the military or naval service, it follows that payments of such contribu- 
tions are not due from members themselves while in the military or naval service. 
The effect of the statute is retroactive in this respect to January 1, 1940. Any 
contributions made by members since entering the military or naval service at 
any time since January 1, 1940, were not required bj^ law to be made or received 
and they should be refunded. 

Very truly yours, 

RouERT T. BusHNELL, Attorney General. 



P.D. 12. 65 

State Employee — Receipt of Two Salaries — Salary Sot Received from the Treasury 

of the Commonwealth. 

Jan. 27, 1942. 
Dr. Paul J. Jakmauh, Commissioner of Public Health. 

Dear Sir: — You have informed me that a certain physician is chief of a clinic 
of the Boston Dispensary and as such receives a salary paid to him by the Dis- 
pensary, which is not a State institution. You also state that the Dispensary is 
reimbursed through one of the divisions of your department for all its expenses, 
including salaries, from funds contributed by the Commonwealth or derived from 
Federal grants. 

You inquire as to whether the fact that this physician receives, and will con- 
tinue to receive, a salary from the Boston Dispensary, for which the Dispensary 
is reimbursed by funds so contributed by the Commonwealth or the Federal Gov- 
ernment, prevents his appointment as a part-time salaried assistant director of 
one of the divisions of your department. 

I am of the opinion that the fact that this physician receives, and will continue 
to receive, a salary from the Boston Dispensaiy, under the stated circumstances, 
will not of itself make unlawful his appointment as a part-time employee of the 
Commonwealth in your department, drawing a salary from the Commonwealth. 

G. L. (Ter. Ed.) c. 30, § 21, provides: 

"A person shall not at the same time receive more than one salary from the 
treasury of the commonwealth." 

The salary which this physician will receive from the Boston Dispensary, under 
the stated circumstances, will be paid by that institution, although the institution 
will be reimbursed by the Commonwealth for a part or the whole of the amount 
which it expends for such salary. Under the stated circumstances, such salary is 
not received from the "treasury of the commonwealth" as the quoted words are 
used in said section 21, but from the institution. It follows that the receipt by 
this physician of salary from the Commonwealth, as a part-time employee, in addi- 
tion to such salary from said institution, will not fall within the prohibition of 
said section 21 against the receipt of more than one salary from the Treasury of 
the Commonwealth. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Milk Control Hoard — I'ou'er to Revise Orders — Statutory Construction — Effective 

Date of Order. 

Jan. 27, 1942. 
M ilk Control Board. 

Gentlemen: — You have requested my opinion on three (juestions, quoted 
below, relating to the administrative powers of the Milk Control Board. Prior 
to Xoveml)er 30, 1941, the authority of the Board was derived from St. 1934, c. 376, 
as amended, known as the "Massachusetts Milk Control Law." That law was 
superseded on November 30, 1941, by St. 1941, c. 691, which contains three prin- 
cipal subdivisions pertinent to the questions which you ask. 



66 P.D. 12. 

Section 1 of said St. 1941, c. 691, inserts in chapter 20 of the General Laws three 
new sections estabhshing your Board, defining the qualifications of its members 
and stating its general powers. Section 2 of the 1941 act provides for the inser- 
tion of an entire new chapter (c. 94A) in the General Laws, to be known and cited 
as the "Milk Control Law." This new chapter, which comprises twenty-seven 
sections, contains detailed provisions concerning regulation of the milk industry. 
Section 3 of the 1941 act repeals the provisions of the existing Milk Control Law 
but provides that "to the fullest extent possible conformably to its terms, this 
act shall be construed as a continuation of said provisions and not as a new en- 
actment." It also contains a provision with respect to the continuance, revision 
or modification of orders issued under the earlier act, with which I shall deal spe- 
cifically below. 

With the foregoing general description of the new law, I now turn to your specific 
questions in a slightly different order from that in which they were set out in your 
letter. 

1, You have stated one of your questions as follows: 

"May the MUk Control Board on or after November 30, 1941 and before May 31, 
1942 alter, amend or revise an order establishing wholesale or retail prices issued 
prior to November 30, 1941 without a petition in writing as described in section 12 
of chapter 94A, as amended effective November 30, 1941?" 

In my opinion, the Milk Control Board does not have unlimited authority to 
alter or revise such an order from time to time, without a petition of the type 
described in chapter 94A, section 12, but it may do so where such alteration or 
revision is an integral part of a review (1) made upon the Board's own motion 
once in each year, or (2) made on the order of the Governor, or (3) made on the 
request of the Milk Regulation Board. 

St. 1941, c. 691, § 3, provides that all orders, rules and regulations adopted by 
the Board under the prior law "shall continue in force after the effective date of 
this act unless and until suspended, revised, rescinded, cancelled or revoked by 
the milk control board pursuant to section nine of chapter twenty and any per- 
tinent provisions of chapter ninety-four A of the General Laws," except that such 
resale price orders shall not continue in force for more than six months after said 
effective date. While chapter 20, section 9, referred to in the foregoing quota- 
tion, speaks of orders, rules and regulations in general, the entire tenor of the new 
act, as of the previous one under which the orders in question were issued, demon- 
strates a legislative intent that price-fixing orders be governed by sections spe- 
cifically dealing with them. That being so, section 12 of the new Milk Control 
Law must be regarded as one of the "pertinent provisions of chapter ninety-four A " 
governing the suspension, revision or revocation of resale price orders issued under 
authority of the old law. The answer to your question, quoted above, thus lies 
in the correct interpretation of said section 12, which reads as follows: 

"Upon petition in writing, with an affidavit that it is signed by not less than 
fifty-one per cent of the Massachusetts producers who, during the month of April 
in the license year next preceding that in which such petition is filed, delivered milk 
for sale or distribution as fluid milk in any market, requesting the board to estab- 
lish minimum prices, wholesale or retail, or both, for milk for such market, and if, 
upon making such examination and investigation as is authorized by this chapter, 
and after public hearing held after due notice, the board finds at the close of such 
hearing that such petition is signed by not less than fifty-one per cent of such pro- 



P.D. 12. 67 

ducers who, during said month or such subsequent month as the board may find is a 
more representative period, deliv^ered milk for sale or distribution as fluid milk in 
said market, that the price to the producer estabhshed under authority of this 
chapter or by any agreement, license, regulation or order made or issued pursuant 
to any federal law, cannot otherwise be maintained, and that the maintenance of 
such price is necessary in order to ensure a regular, continuous and adequate supply 
of fresh, pure milk sufficient to meet the requirements of said market and to pro- 
tect the public health therein, the board may declare, subject to approval of the 
milk regulation board, that a state of emergency exists. The board may thereon 
issue such orders, rules and regulations as may be necessary, including the fixing 
by official order of minimum wholesale or retail prices, or both, for milk sold within 
the market affected, irrespective of where such milk is produced. The hoard may 
in like manner at any time alter, revise, amend or rescind the prices so fixed. Any 
such action shall be reviewed by the board at least once in each year, or at any time on 
the order of the governor or on the request of the milk regulation board. Due notice 
shall be given of any such review. Every price fixed pursuant to this section, and 
any alteration, revision or amendment thereof, shall be fair, just and reasonable 
and shall be pubUshed as provided in section twenty-two. "^ 

One problem of statutory construction involved herein is whether or not the 
words "w like manner," used in the sentence of section 12 which confers authority 
upon the Milk Board "at any time" to "alter, revise, amend or rescind" orders 
fixing wholesale and retail prices of milk, refer back to the requirement of a petition 
of the type described in the first sentence of said section 12, In my opinion, the 
relative position of the words "in like manner" in section 12, and the entire con- 
text of that section, require that the words be construed as a limitation upon the 
Board's general authority to alter, revise or amend orders fbcing minimum resale 
prices. Consequently, such alteration, revision or amendment is permitted only 
upon compliance with the procedure prescribed by earlier provisions in the section 
as conditions precedent to the original issuance of such orders. A contrary con- 
struction would give the Board authority to fix new minimum wholesale and retail 
prices of milk from time to time for an indefinite period in the future simply be- 
cause such prices had been fixed on one occasion at a time when the conditions 
precedent were found to exist. 

This construction follows the fundamental principle of statutory interpretation 
that a particular phrase or part of a statute is to be construed in harmony with the 
intent of the Legislature disclosed by the whole statute, to the end that the legis- 
lation be made workable and effectual. Holbrook v. Holbrook, 1 Pick. 248; Swift 
V. Registrars of Voters of Quincy, 281 Mass. 271; Morrison v. Selectmen of Town of 
Weymouth, 279 Mass. 486. 

My conclusion as to the correct interpretation of G. L. (Ter. Ed.) c. 94A, § 12, as 
inserted by St. 1941, c. 691, § 2, is supported by the legislative history of the statute, 
which may properly be considered in determining the construction to be placed 
upon its words. Hood Rubber Co. v. Commissioner of Corporations and Taxation, 
'_*ti8 Mass. 355, 358; Carlos Ruggles Lumber Co. v. Commonwealth, 261 Mass. 445, 
447, 448; taring v. Young, 239 Mass. 349, 367, 368. 

The earlier counterpart of the new chapter 94A, section 12, was St. 1934, c. 376, 
§ 15 (C), as amended, which specifically provided that the Board "may in like 
manner, but without petition as aforesaid, alter, revise, amend or rescind the prices" 
fixed thereunder. House Bill No. 2325 (1941) provided, in the section correspond- 

' The provisions for publication appear in section 19 of chapter 94A rather than in section 22 thereof. 
rill' statute is to be construed as if the correct section number were referred to in section 12, above. 



68 P.D. 12. 

ing to said section 12, that "the board may in like manner at any time alter, revise, 
amend or rescind the prices so fixed." House Bill No. 2325 was amended by House 
Bill 2728, which inserted in the corresponding section, after the phrase "in like 
manner," the words "but without petition as aforesaid." The words " but without 
petition as aforesaid" were stricken from said section 12 prior to its enactment, 
thereby disclosing a specific intention on the part of the Legislature that such a 
petition be required as a condition precedent to the Board's authority "at any time " 
to "alter, revise, amend or rescind" wholesale and retail prices of milk. 

The meaning which I ascribe to the words "in like manner" harmonizes with the 
other provisions of the statute and is not an impracticable one. If a situation should 
arise in which the public welfare would be imperiled if the Board were required to 
delay revision of such price-fixing orders pending the preparation, circulation and 
filing of such a petition, appropriate action by the Board would be possible under 
another provision of said section 12. I refer to the following sentence contained 
therein : 

"Any such action shall be reviewed by the board at least once in each year, or at 
any time on the order of the governor or on the request of the milk regulation 
board." 

In my opinion, the Board's power and duty of review, as limited by the quoted 
sentence, include the power to revise an existing fixed minimum wholesale or retail 
price. Both in its ordinary and its legal meaning the word "review" may include 
"revise." Webster's International Dictionary; Bouvier's Law Dictionary (3rd 
rev.) 2954. The words of a statute are to be construed according to their common 
and approved usage. Sayles v. Commissioner of Corporations and Taxation, 286 
Mass. 102; Sampson v. Treasurer and Receiver General, 282 Mass. 119. G. L. (Ter. 
Ed.) c. 4, § 6. The word "review" should be so construed as to accomplish the 
apparent intent of the Legislature disclosed by the whole statute. City of Somer- 
ville V. Commonwealth, 225 Mass. 589; National Fire Ins. Co. v. Goggin, 267 Mass. 
430; Lowell Co-operative Bank v. Dafis, 276 Mass. 3. G. L. (Ter. Ed.) c. 4, § 6. An 
interpretation of the word "review" as merely requiring the Board to go over a 
previous price-fixing order and not including authority to revise such an order would 
give that word an empty meaning and the Board an ineffectual authority, in disre- 
gard of the principles of statutory construction set forth above. 

Consequently, if the emergency requiring a prompt revision of such orders were 
to arise before the Milk Control Board had exercised its statutory authority to 
make one "review" in each year without a petition, it could proceed to act under 
that authority. If the Board had already made a " review " without petition during 
the year, the facts with respect to the emergency could be laid before the Governor 
or the Milk Regulation Board, who could then order or request that a review be 
made by the Milk Control Board without the necessity of a petition. 

2. Another question on which you have asked my opinion reads as follows: 

"May the Milk Control Board acting under the provisions of section 12 of chap- 
ter 94A, as amended effective November 30, 1941, or prior to that date acting under 
the similar provisions of chapter 94 A as now existing, for those Massachusetts 
markets in which the price to l)e paid to the producer is dependent upon a price 
fixed by marketing agreement or order issued pursuant to relevant Federal law, 
fix by official order two or more alternative schedules of wholesale and retail prices 
to be charged by milk dealers, with provisions for determining which particular 



P.D. 12. 69 

schedule shall he applical)le during any particular period, depending upon the 
automatic increase or decrease in the price recjuired to be paid by the milk dealer 
to the producer under the provisions of such Federal order or a<;reement?" 

This question has been amplified in some respects by a proposed form of order 
which has been submitted to me by the secretary of your Board. Thus, the pro- 
posed form sets forth several specific producer prices which may become applicable 
under an existing federal agreement or order, and specifies which of the several 
schedules of wholesale and retail prices, prepared by your Board and contained 
in said form of order, shall apply while each of the specified federal producer prices 
prevmls. The proposed form of order submitted to me also provides that a shift 
from one schedule of wholesale and retail prices to another shall be preceded by 
at least three daj^s' notice and publication in the manner prescribed by section 
19 (a) of said chapter 94A. 

In so far as the form of order submitted to me indicates the type of alternative 
orders which you propose, I am of the opinion that you may lawfully issue such 
orders. 

Having been informed by the secretary of your Board that no such order was 
in fact issued before November 30, 1941, I must conclude that that part of your 
question relating to the period prior to that date is hypothetical and need not be 
considered. 

The provisions of said chapter 94A clearly indicate that the Legislature contem- 
plated that there should be a correlation between federal producer prices of milk 
and Massachusetts wholesale and retail prices fixed by your Board. Sections 23 
and 24 thereof provide for various forms of co-operation with other States and 
with the United States for the purpose of attaining uniform milk control. More- 
over, retail and wholesale prices of milk can be fixed by the Board only when pro- 
ducer prices established by state or federal regulation cannot otherwise be main- 
tained (§ 12). The Board is required by section 10 of said chapter 94A to take into 
consideration, in the exercise of its price-fixing powers, "all the conditions affect- 
ing the milk industry, including the amount necessary to yield a reasonable return 
to the producer and the milk dealer." Said section 10 further provides that "in 
establishing minimum prices for milk under this chapter the board shall cause 
said prices to be fair, just and reasonable.". 

In order to satisfy the requirements of the statute and to accomplish the result 
sought by it, resale prices fixed by the Board must necessarily fluctuate together 
with changes in producer prices fixed by either state or federal regulation. Ob- 
viously, in the event of a change in the producer price, a wholesale or retail price 
of milk previously fixed by the Board would either cease to yield a reasonable 
leturn to the dealer or enable him to make an excessive profit. In either case, a 
wholesale or retail price which remained static in spite of a change in the Federal 
producer price fixed for the same market would not be "fair, just and reasonable." 

Federal orders issued, or marketing agreements made, pursuant to Public Act 
Xo. 10, 73rd Congress, as amended and as re-enacted and amended by the Agri- 
iiiltural Marketing Agreement Act of 1937, occasionally provide for an automatic 
increase or decrease in producer prices, depending upon a change in the price of 
-' ime other dairy product. For instance, a "tentatively approved marketing agree- 
ment," dated September 27, 1941, now in operation and regulating the handling 
oi milk in Greater Boston, provides for an increase from .13.63 per hundred weight 



70 P.D. 12. 

to $3.86 per hundred weight in the event that "92-score butter, wholesale at New 
York, average of daily quotations of the United States Department of Agriculture 
for thirty days immediately preceding the twenty-fifth day of each month" should 
exceed forty cents per pound. 

In view of the comparatively slow and cumbersome procedure prescribed by 
said chapter 94A. for issuing new resale price orders either upon petition or on 
review it would not be possible for your Board to effect, by new orders, prompt 
adjustments in wholesale and retail prices of milk fixed by your Board, when such 
adjustments are necessitated by automatic changes in a federal producer price 
which might occur under an existing federal agreement or order of the character 
referred to above. Section 16 (6) requires that a general hearing must be held 
by you and an opportunity to offer evidence must be afforded to all interested 
persons "before adopting, altering or rescinding any general order." Seven days 
at least before any general hearing, the Board must publish in a manner pre- 
scribed by said section 19 (a) a notice containing a brief but sufficient state- 
ment of the subject matter of such hearing (§ 17 (a)). Section 17 (6) requires 
that three days at least before any general order shall become effective, it must 
be published as prescribed in section 19 (a). 

If said chapter 94A were construed as not empowering the Milk Control Board 
to issue, under the specified circumstances and conditions, the type of order which 
you propose, the legislative purpose disclosed by the provisions set forth above 
and by the statute as a whole would be thwarted, contrary to the cardinal prin- 
ciple that a statute is to be interpreted so as to accomplish the apparent intent 
of the Legislature and to make it a workable and effectual piece of legislation. 
Shrift V. Registrars of Voters of Quincy, 281 Mass. 271, 276; DascalaJcis v. Common- 
wealth, 244 Mass. 568, 570. 

3. A third question reads: 

"Under the provisions of chapter 94A as now existing or as amended effective 
November 30, 1941, may the Milk Control Board publish a general order, rule or 
regulation adopted by the board by posting a copy thereof for public inspection in 
the main office of the Board on a business day and have it effective upon the fourth 
business day next succeeding, provided the provisions with respect to mailing and 
fihng with the State Secretary are complied with?" 

Such orders, rules and regulations may, in my opinion, not only become effective 
on the fourth business day following the completion of the prescribed publication 
thereof, but may also be made effective on the third following business day. 

The statutory provision applicable to orders issued prior to November 30, 1941, 
is found in section 9 of St. 1934, c. 376, as amended, which reads in part as follows: 

"... Every such general rule, regulation or order shall be posted for public 
inspection in the main office of the board at least three days before it shall become 
effective, and a copy thereof shall be mailed to each licensee deemed to be affected 
thereby, and shall be further published by advertisement in a newspaper or other- 
wise, as the board deems advisable. ..." 

The pertinent provisions operative on and after November 30, 1941, are contained 
in G. L. (Ter. Ed.) c. 94A, §§ 17 (6), 17 (e) and 19 (a). As already noted above, sub- 
section (6) of said section 17 requires that at least three days before "any general 
order, rule or regulation adopted by the board shall become effective," it shall be 



I 



P.D. 12. 71 

published in the manner prescribed by subsection (a) of section 19. Subsection (e) 
of said section 17 provides that: "In computing a period of notice required or 
authorized vuider this chapter, Sundays and legal holidays shall be excluded." 

In determining the day upon which any general order, rule or regulation shall 
become effective, the day upon which publication is made should be counted as 
one of the three days required by the statute. In Lmie v. Holman, 145 Mass. 221, 
the court said at page 222 : 

"In construing statutes which provide for the service of process, or of notice, 
when the process is required to be served, or the notice to be given, a certain num- 
ber of days before the return day, the days have been reckoned by excluding the 
return day, and including the day on which the process is served or the notice given, 
and fractions of a day have not been regarded." 

The same rule was recognized in Corexj v. National Ben Franklin Fire Ins. Co., 
284 Mass. 283, 286, and in Stewart v. Griswold, 134 Mass. 391, and Bemis v. 
Leonard, 118 Mass. 502, 507. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Municipal Commissioner of Public Welfare — Examination Pur- 
suant to Merit System Rules — Right to Classification. 

Feb. 4, 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You recently requested that I advise you concerning the status 
of a certain person, who formerly occupied the position of commissioner of public 
welfare in a city named by you. More particularly you inquired whether he is 
now entitled, under St. 1941, c. 402, to be classified on the records of your office 
as holding that position under civil service, and whether, in view of the facts 
related by you, the said individual should be restored to his position, which he 
does not now occupy. 

The material facts upon which my opinion is requested are these: The person 
to whom you referred was appointed, on February 6, 1939, to the position of com- 
missioner of public welfare for a term of two years, in accordance with the pro- 
visions of the city charter. At the expiration of his term in February, 1941, an- 
other person was appointed to his position, and has occupied it since that time. 
However, on September 21, 1940, the person in question had taken the examina- 
tion given pursuant to the Merit System rules which had theretofore been promul- 
gated by the Department of Public Welfare of Massachusetts. The results of that 
examination were not announced until September 5, 1941. The position which he 
occupied on April 15, 1940, and at the time he took the examination, is one of the 
positions which was brought within the scope of the Civil Service Laws by chapter 
402 of the Acts of 1941, as amended. 

In my opinion, the individual concerning whom you inquired is not entitled to 
be restored to his former position or to be classified on your records as occupying 
said position. 

The rights of persons who took the Merit System examination, so called, on 
September 21, 1940, are defined by St. 1941, c. 402, § 5, which took effect June 
24, 1941. Said section 5 reads as follows: 



72 P.D. 12. 

"Every person on said effective date holding a position referred to in section one 
and made subject to said chapter thirty-one by said section one who was an incum- 
bent thereof on April fifteenth, nineteen hundred and forty, and has taken a qualify- 
ing examination pursuant to the provisions of ' Rules for a Merit System in Massa- 
chusetts covering Old Age Assistance and Aid to Dependent Children ' promulgated 
by the department of public welfare, a copy of which is on file in the office of the 
state secretary, sJwll, from said effective dale, have unlimited tenure thereof as pro- 
vided in said section one, subject to the condition that if he fails to pass said exami- 
nation his position, if not previously vacated, shall thereupon become vacant." 
(Italics mine.) 

From the facts which you have stated, it appears that the individual in question 
ceased to hold said position in February, 1941, and that, consequently, he does not 
come within the purview of said section 5. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Metropolitan Water District — StaJid-By Charges on Municipalities — Construction 

of Statute. 

Feb. 5, 1942. 

Hon. Eugene C. Hultman, Commissioner, Metropolitan District Commission. 

Dear Sir: — You have called my attention to the fact that St. 1941, c. 727, 
"requires certain municipalities, not members of the Metropolitan Water District, 
which have for many years enjoyed the protection of connections to the Metro- 
politan Water System and which have been furnished a free stand-by protection, 
to annually pay a stand-by charge." 

You have asked my opinion as to whether another class of municipalities which 
is outside the Metropolitan Water District but which has connections with the sys- 
tems of municipalities that are members of the Metropolitan Water District, 
should be assessed the stand-by charge. 

I am of the opinion that no authority exists for assessing a "stand-by" charge 
upon the latter class of municipalities. 

The Legislature, in said St. 1941, c. 727, entitled "An Act relative to the furnish- 
ing of water to towns in the Metropolitan Water District and certain other towns," 
has dealt comprehensively with the matter of municipal payments of annual 
charges for connections to the Metropolitan Water System. It has specified the 
class of municipalities, not members of the Metropolitan Water System, which 
shall be assessed a charge for connection with the water system, namely: towns 
already having a connection with the Metropolitan Water System (with certain 
exceptions not here material) and any towns which make application for such con- 
nection, provided that any such towns are eligible to membership in the Metro- 
politan Water District by reason of their location or, if not so eligible, are located 
so that they can reasonably be supplied with water from any distributing reser- 
voir of said district, and have at any time requested or been furnished a supply 
of water from said district. 

The statute does not include within the towns which may be so assessed those 
municipalities which do not have or have not applied for connections with the 
system of the Metropolitan Water District itself, although they have connections 
with the systems of municipalities that are members of the Metropolitan Water 
District. 



P.D. 12. 73 

Such a specific designation by the Legislature of a particular class of municipali- 
ties to be subject to an assessment, under familiar principles of statutory construc- 
tion, impliedly excludes from liability for such an assessment any other class or 
classes of municipalities, whatever benefit they may derive indirectly from the 
Metropolitan Water System. 

\'ery truly yours, 

Robert T. Bushnell, Attorney General. 

Division of Parks — State Parks and Forests — Licenses from Local Authorities. 

Feb. 5, 1942. 
Mr. Edgar L. Gillett, Director, Division of Parks and Recreation. 

Dear Sir: — You have asked me if it is necessary for the Division of Parks 
and Recreation in the Department of Conservation to obtain licenses from local 
authorities to maintain picnicking, camping and log cabins, which it operates in 
State parks and forests. 

My answer is in the negative. 

G. L. (Ter. Ed.) c. 132A, § 3, authorizes the Commissioner of Conservation to 
"acquire for the commonwealth . . . any lands suitable for purposes of conserva- 
tion or recreation . . . and [to] lay out and maintain such lands for such purposes 
and erect and maintain such structures and other facilities thereon as may be 
necessary to render such lands reasonably available and accessible therefor." 

It is further provided in section 7 of said chapter (as amended by St. 1941, 
c. 722, § 11) that "the commissioner, with the approval of the governor and coun- 
cil, may make rules and regulations for the government and use of all property 
under the control of the division. ..." 

G. L. (Ter. Ed.) c. 140, § 188, provides that "the aldermen ... or the select- 
men may grant a license to any person to establish, let, keep open and maintain 
a grove to be used for picnics. ..." 

St. 1939, c. 416, amending G. L. (Ter. Ed.) c. 140, and as further amended by 
St. 1941, c. 396, states "No person shall conduct, control, manage or operate, 
directly or indirectly, any recreational camp, overnight camp or cabin or trailer 
camp unless he is the holder of a license granted" by the board of health of any 
city or town. 

In maintaining on State parks and forests grounds any structures for picnicking 
and camping the Commissioner "is acting as the agent of the State in exercising 
the authority of the sovereign over its own property. . . . Such an act must be 
regarded as needful in the proper execution of the powers which the State may 
exercise over its own property; and the general law made for the regulation of 
citizens must be held subordinate to this special statute regulating the use of the 
property of the State unless there is express provision to the contrary." Teasdale 
v. Newell, &c. Construction Co., 192 Mass. 440, 443. See also III Op. Atty. Gen. 
265; V Op. Atty. Gen. 128; Attorney General's Report, 1932, p. 86; ibid. 1933„ 
p. 65; ibid. 1939, p. 42. 

Very truly yours, 

Robert T. Bushnell, Attorney General, 



74 P.D. 12. 

Commissioner of Correction — Parole — Period of Time Between Conditional Release 

and Return to Prison. 

Feb. 6, 1942. 
Hon. Arthur T. Lyman, Commissioner of Correction. 

Dear Sir : — You ask my opinion regarding the interpretation of the recently 
enacted statute conferring upon the Commissioner of Correction jurisdiction over 
the parole of prisoners sentenced to penal institutions of the Commonwealth for 
drunkenness. That statute (G. L. (Ter. Ed.) c. 127, § 136A, as inserted by St. 
1941, c. 690, § 2) reads as follows: 

"The commissioner may grant, upon such terms and conditions as he may pre- 
scribe, a conditional release to any prisoner in a penal institution of the common- 
wealth who is there held solely by reason of a sentence for drunkenness. Such 
terms and conditions may be revised, altered or amended, or such conditional re- 
lease may be revoked, by the commissioner at any time. A violation by the holder 
of such conditional release of any of its teniis or conditions or the \'iolation of any 
law of the commonwealth shall render such conditional release void. The commis- 
sioner, if a conditional release issued by him has become void or has been revoked, 
may order the arrest of the holder of such conditional release by any special state 
police officer in the department of correction or any officer qualified to serve civil 
or criminal process in any county, and the return of such holder to the prison to 
which he was originally sentenced." 

You request my opinion "whether the period of time between the conditional 
release of a prisoner and his return to prison (under section 136A) should be con- 
sidered as part of a prisoner's original sentence in computing the length of sen- 
tence left to be served," and you state two hypothetical situations to illustrate 
the problem. 

In my opinion, the period of time between the 'conditional release of a prisoner 
and his return to prison (under section 136A) should be considered as part of a 
prisoner's original sentence in computi;ig the length of sentence left to be served, 
pro\nded the prisoner is properly at liberty throughout that period. If during any 
part of that period the prisoner is not properly at liberty, such part of the period 
should not be considered as part of the original sentence in computing the length 
of sentence left to be served. 

Prior to the effective date of St. 1941, c. 690, "drunks" sentenced to State insti- 
tutions were paroled in the same manner as other prisoners, under G, L. (Ter. 
Ed.) c. 127, §§ 128, 147, 148, and 149, as amended. Section 149 provides spe- 
cifically that when a prisoner has been returned to prison because his permit to be 
at liberty has become void or has been revoked, "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." This provision was retained in section 149 as that section was revised 
by St. 1941, c. 690, § 3. The Legislature inserted no comparable provision in the 
new section 136A, although that section was enacted as part of the same statute 
as section 149. 

Wlien one statute contains two parallel sections dealing with the same general 
subject matter, and an express qualification or proviso is made in one, and not in 
the other, the absence of the qualification or proviso in the second is a strong indi- 
cation that the Legislature intended to differentiate between the two. Mc Arthur 



P.D. 12. 75 

Brothers Co. v. Commonwealth, 197 Mass. 137, 139; Boston & Albany Railroad v. 
Commomvealth, 296 Mass. 426, 434; Spence, Bryson, Inc. v. China Products Co. 
308 Mass. 81, 88. Application of this principle to the statute now under consid- 
eration leads to the conclusion that the Legislature did not intend the computa- 
tion of time provision of section 149 to apply to section 136A, but intended that 
such time as the prisoner is properly at liberty should be counted as part of the 
term of his origmal sentence. See In re Prout, 12 Idaho 494, 501-502; Woodivard 
V. Murdoch, 124 Ind. 439, 444-445; Scott v. Chichester, 107 Va. 933, 935-936. 

However, when a prisoner has violated the conditions of his release and has 
been ordered arrested and returned to prison, he is no longer properly at liberty. 
His status is analogous to that of an escaped convict. Harding v. State Board of 
Parole, 307 Mass. 217, 220; Anderson v. Corall, 263 U. S. 193, 196; Zerbst v. Kid- 
well, 304 U. S. 359, 361 ; White v. Pearlman, 42 F. (2d) 788, 789. Time, therefore, 
does not run on his sentence from that time until his return to prison. Dolan's 
case, 101 Mass. 219, 222. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — N^ on-competitive Examinations Prior to St. 1939, Chapter 506. 

Feb. 6, 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether two certain persons 
may be appointed as permanent pharmacy investigators by the Board of Regis- 
tration in Pharmacy. 

I am of the opinion that they may not be so appointed. 

St. 1941, c. 596, § 6, amending G. L. (Ter. Ed.) c. 13, § 25, provided that the 
said Board might appoint four agents whose duties are those of inspectors. Be- 
fore the enactment of said chapter 596, said chapter 13, section 25, as it then stood, 
authorized only the appointment of a single agent to perform such duties, and there 
was an incumbent of such position. 

You have advised me of the following facts relative to the two persons in 
question. 

On February 1, 1937, they were appointed provisionally as "pharmacy investi- 
gators," pending the result of a competitive" examination. 

On December 28, 1938, the then Commissioner of Civil Service purported to 
authorize their permanent employment, subject to a non-competitive examination. 
On January 3, 1939, both took and passed a non-competitive examination, but 
inasmuch as the Board of Registration in Pharmacy had no authority under said 
section 25 to employ more than one permanent agent or investigator, they were 
appointed only on a temporary provisional basis, which thereafter was continued 
'from time to time to the present. 

; On October 3, 1939, as the result of a competitive examination, there was estab- 
jhshed an eligible list for the position of "pharmacy investigator." One of the per- 
jsons in question, who took this examination, stood seventh on this hst. The other 
j did not take it and his name does not appear on the eligible Ust. 

It appears from the facts stated in your letter and from an examination of the 
es, that no pennanent appointment of these two persons was ever actually made 
,s a result of the non-competitive examination of January 3, 1939. 



76 P.D. 12. 

By the enactment of St. 1939, e. 506, amending G. L. (Ter. Ed.) c. 31, § 15, it 
is now provided in said section 15 that: 

"No person shall be appointed or promoted to anj- position in the classified civil 
service except upon requisition by the appointing officer and upon certification by 
the director from an eligible list. . . . 

... no person shall receive an original appointment to the classified official sen^- 
ice . . . otherwise than by virtue of a competitive examination. ..." 

Certain exceptions to the above provisions appear in said section 15 but they are 
not applicable in the present situation. 

The effect of said section 15 is to render persons, such as the two to whom you 
refer, who passed non-competitive examinations but were not actually appointed 
to permanent positions prior to the enactment of said St. 1939, c. 506, not eligible 
for appointment to permanent positions merely by reason of their having passed 
such non-competitive examinations. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Deputy Purchasing Agent of Springfield — Facilities uithin Classified 

Civil Service. 

Feb. 19, 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — In requesting my opinion concerning the applicability of the Civil 
Service Law and Rules to the position of Deputy Purchasing Agent in the City of 
Springfield you gave me of the following facts: 

On November 30, 1939, the City of Springfield accepted the provisions of G. L. 
(Ter. Ed.) c. 41, § 103, which authorize the establishment of a purchasing de- 
partment in the city. Thereafter the City Council of Springfield passed an ordi- 
nance, which was approved by the Mayor, providing for the organization of a 
purchasing bureau or department and also for the appointment of a Purchasing 
Agent and a Deputy Purchasing Agent. With respect to the position of Deputy 
Purchasing Agent the ordinance provides that appointments shall be made by the 
Mayor "subject to confirmation by the city council." 

You have requested my opinion specifically as to whether the said position of 
Deputy Purchasing Agent is, by reason of the requirement of confirmation, placed 
beyond the scope of the Civil Service Law and Rules, in accordance with G. L. 
(Ter. Ed.) c. 31, § 5, the pertinent portions of which are: 

"No rule made by the commission shall apply to the selection or appointment of 
any of the following : 

. . . officers whose appointment is subject to confirmation . . . by the city 
council of any city." 

In my opinion, the position of Deputy Purchasing Agent in Springfield is not 
affected by said section 5 of chapter 31 of the General Laws. 

The basic authority for the creation of a purchasing department in Springfield 
is contained in G. L. (Ter. Ed.) c. 41, § 103, which reads: 

"A city which accepts this section in the manner provided in the following section 
or has accepted corresponding provisions of earlier laws, or a town which accepts 
this section or has accepted corresponding provisions of earlier laws, may establish 



P.D. 12. 77 

a purchasing department, to consist of a purchasing agent and such assistants as 
the city council or selectmen ma}- determine. In cities the salaries of the purchasing 
agent and assistants shall l^e determined \)y the city council. In cities the agent and 
assistants shall be appointed l:)y the mayor for .such terms of office as may l)e pre- 
scribed by ordinance, and in towns they shall be appointed and may be removed 
by the selectmen. The purchasing agent shall purchase all supplies for the city 
or town and for every department thereof except in case of emergency. All pur- 
chases or contracts for purchases exceeding one hundred dollars in amount shall 
be based upon competition. A record shall be kept l)y the department of the prices 
paid for the supplies, and shall be open to the inspection of any citizen." 

The Legislature, in enacting said section 103, has specified in considerable detail 
the respective functions of mayors and city councils in connection with the estab- 
lishment and operation of purchasing departments in cities. The statute states 
that assistants in the purchasing department of a city shall be appointed by the 
mayor. It does not provide for their confirmation by a city council. A city coun- 
cil is given authority by said section to determine the number and, inferentially, 
the type, of assistants who are to be appointed. It has no authority, however, to 
provide a different mode of appointment for such officials than that determined 
by the Legislature, nor any authority to limit or curtail the power of apjx)inting 
assistants, which the act of the Legislature vested in the mayor alone. 

No legal effect can be ascribed to provisions in an ordinance which purport to 
run counter to the legislative mandate. 

An assistant to whom is delegated the power to act temporarily in the place of 
his superior officer during the absence of the latter or during a vacancy in the 
latter's office, in addition to the ordinary authority of an assistant official, is, 
nevertheless, an assistant, though an assistant of a particular type. Attorney 
General v. Tillingha.st, 203 Mass. 539. 

It follows that an ordinance of the City of Springfield passed, after its acceptance 
of said section 103, on December 29, 1941, which provides for a "deputy purchas- 
ing agent" in the purchasing department, to be appointed "by the mayor . . . 
subject to confirmation by the city council," does not constitute the assistant 
called "deputy purchasing agent" an officer whose appointment is "subject to 
confirmation by the city council." 

Consequently, the position in question is not excluded from Civil Service classi- 
fication by the terms of G. L. (Ter. Ed.) c. 31, § 5, which I have quoted above. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

V^eteran — Settlement — Hospitalization — Militanj Aid — Soldiers^ Relief. 

Feb. 25, 1942. 
Hon. W. Rea Long, Commissioner of State Aid and Pensions. 

Dear Sir: — You have asked my opinion as to whether 

"hospitalization of a veteran or dependent, while receiving no other type of aid, 
affects a legal settlement." 

I am of the opinion that the receipt of treatment in a hospital or other institu- 
tion, which comprehends "hospitalization" of a veteran or his dependent eligible 
to receive military aid or soldiers' relief under G. L. (Ter. Ed.) c. 115, does not 
affect the acquisition or defeat of a settlement of either. 



78 P.D. 12. 

G. L. (Ter. Ed.) c. 116, § 4, provides: 

" If a soldier or a dependent of a soldier eligible to receive military aid or soldiers' 
relief under chapter one hundred and fifteen receives aid or treatment in any 
hospital or other institution, such aid or treatment shall not have the effect of 
preventing or defeating the acquisition of a legal settlement." 

In enacting section 4 it was the intent of the Legislature to provide that aid or 
treatment furnished in a hospital or institution to one entitled to military aid or 
soldiers' relief should always be treated as received under the terms of G. L. (Ter. 
Ed.) c. 115, entitled "State and Military Aid, Soldiers' Relief, etc." and never as 
"public relief" furnished under G. L. (Ter. Ed.) c. 117, to poor and indigent per- 
sons. This is so, regardless of the type of relief to which the expense of such 
hospital or institutional aid or treatment should be allocated by a municipality. 

In like manner aid or relief received under said chapter 115 is excluded from the 
relief which may prevent the acquisition of a settlement by section 2 of said chap- 
ter 116 as amended, which reads: 

"No person shall acquire a settlement, or be in the process of acquiring a settle- 
ment, while receiving public relief other than aid or relief received under chapter 
one hundred and fifteen, unless, within two years after receiving such relief, he 
tenders reimbursement of the cost thereof to the commonwealth or to the town 
furnishing it. No former patient of a state or county tuberculosis sanatorium or 
hospital, who is employed in such an institution, shall lose or gain a settlement or 
be in the process of losing or gaining a settlement while so employed." 

The effect of these provisions is such that a veteran, eligible to receive military 
aid or soldiers' relief, who is an inmate of a soldiers' or sailors' home or other insti- 
tution, and is receiving aid or treatment therein, will not be prevented or defeated 
in the acquisition of a settlement by force of said section 4. 

You have directed my attention to certain provisions of section 5 of said chap- 
ter 116, which read: 

"The time during which a person shall be an inmate of any infirmarj^, jail, prison 
or other public or state institution, within the commonwealth or in any manner 
under its care and direction, or that of an officer thereof, or of a soldiers' or sailors' 
home whether within or without the commonwealth, shall not be counted in com- 
puting the time either for acquiring or defeating a settlement, except as provided 
in section two." 

In my opinion, these provisions do not militate against the answer which I have 
given to your specific question. 

It is a cardinal principle of statutoiy construction to construe statutes dealing 
with the same general subject so as to give effect to each and so as to form a logi- 
cal and consistent whole. Decatur v. Auditor ofPeabody, 251 Mass. 82, 87; Goodale 
V. County Commissioners, 277 Mass. 144, 151. Applying this principle to the 
present enactments, it is clear that section 5 should be construed in such a manner 
that it will not conflict with the specific terms of section 4. Section 5 is readily 
susceptible of such a construction. 

Thus, if section 5 is construed so as to apply to an inmate of a soldiers' or sailors' 
home, who is not eligible for aid under chapter 115, effect will thereby be given to 
section 5 without any conflict with section 4. In the absence of specific problems 
requiring solution whether there are other possible non-conflicting constructions 
of section 5 need not be determined at this time. 



P.D. 12. 79 

You have called a particular case to my attention. You state that a veteran 
receiving military aid under said chapter 115 from the City of Worcester, where 
he previously had a settlement, was in the process of acquiring a new settlement 
in Springfield under G. L. (Ter. Ed.) c. 116, § 5, by residence there for a period 
of five years; and that during such five-year period a dependent of the veteran 
received treatment by way of an operation in a hospital of the City of Springfield 
at its expense. I am of the opinion that by reason of the provisions of said section 
4 of G. L. (Ter. Ed.) c. 116, such aid and treatment of the veteran's dependent 
in a hospital did not prevent his acquisition of a settlement by five years' resi- 
dence in Springfield. 

Very truly yours, 

Robert T, Bushnell, Attorney General. 

Board of Registration — Issuance of Duplicate Annual Renewals of Certificates of 
Registration — Charge Therefor. 

Feb. 26, 1942. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear ]\L\dam: — You have asked my opinion as to whether "duplicate annual 
renewals issued by the Boards in the Division of Registration come under the pro- 
visions of G. L. (Ter. Ed.) c. 112, § 88, cl. (3)." 

You have informed me that by "duplicate annual renewals" you refer to dupli- 
cate certificates of annual renewals of registration issued by a State board of 
registration or examination. 

I am of the opinion that the boards of registration and examination in the Divi- 
sion of Registration derive no authority from said section 88 to issue or charge a 
fee of five dollars for such duplicate certificates of annual renewals. 

G. L. (Ter. Ed.) c. 112, § 88, in its applicable parts, reads: 

"... Everj' board of registration or examination established by the common- 
wealth shall — 

(3) Issue a duplicate certificate of registration upon satisfactory evidence that 
the original certificate has been lost or destroyed, and the fee therefor shall be five 
dollars." 

The issuance of certificates of annual renewals of registration has been provided 
for by statute only with relation to nurses and barbers. (See G. L. (Ter. Ed.) 
c. 112, §§ 74, 87Q.) 

At the time the provisions of said section 88 were first enacted by Gen. St. 
1918, c. 217, § 3, in the form in which they are now embodied in the General Laws, 
the then existing statutes did not provide for the issuance of any certificates of 
annual renewals of registration. It follows that the words "a duplicate certificate 
of registration" as employed in said section 88, refer only to a duplicate of the 
certificate issued to an applicant at the time of his original registration. P'urther- 
more, by the terms of said section 88, the authority to issue a duplicate certificate 
of original registration and to charge a fee of five dollars therefor is limited to 
those cases in which the original certificate of registration has been lost or destroyed. 

If, in the opinion of any of said boards, it is useful for the protection of the 
public that registrants or licensees have certificates which \v\\\ show that regis- 



80 P.D. 12. 

trations or licenses are in effect by annual renewal and the registrants or licensees 
request that they be furnished with them, such board has implied authority to 
issue such a certificate and to charge therefor a nominal fee sufficient to cover 
the actual expenses involved in making and issuing it. 

The same principle would apply to the issuance of a duplicate of the original 
certificate of registration by the Board of Registration in Dentistry to a dentist 
having two offices and required by G. L. (Ter. Ed.) c. 112, § 45, to display an origi- 
nal certificate of registration or a duplicate in his office, even though the original 
has not been lost or destroyed. You have called my attention to such an issu- 
ance, and I am of the opinion that the Board of Registration in Dentistry has 
implied authority in the indicated circumstances to issue the duplicate certificate 
and to charge therefor a nominal fee sufficient to cover the actual expense involved. 

Very truly yours, 

Robert T. Bushnell, Attorvey General. 



Metropolitan Water District — Municipal Stand-By Charge — Liability of the 

Town of Saugiis. 

Feb. 27, 1942. 

Hon. Eugene C. Hultaian, Commissioner, Metropolitan District Commission. 

Dear Sir: — You have asked my opinion as to the liability of the Town of 
Saugus to pay a so-called stand-by charge under St. 1941, c. 727, for a connection 
of its water pipes with those of the Metropolitan Water District from which water 
is to be furnished to the town under St. 1941, c. 566. 

I am of the opinion that the Town of Saugus is not liable to pay such stand-by 
charge. 

St. 1941, c. 727, § 4, which took effect on October 31, 1941, specifies those towns 
which are required to pay such a stand-by charge. The applicable part of said 
section 4 reads: 

"Any town which already has a connection with the metropolitan water system, 
except any such town which shall, not earlier than January sixth, nineteen hundred 
and forty-two nor later than the March first next following, have notified the met- 
ropolitan district commission that it desires to discontinue such connection, and 
any town which makes application for such connection under any provision of this act, 
shall annually, until it becomes a member of said district, be assessed and pay, as 
hereinafter provided, a premium equal to three hundredths of one per cent of its 
valuation for the preceding j^ear." 

St. 1941, c. 566, which took effect on July 30, 1941, authorized your Commis- 
sion to sell and deliver water to the Town of Saugus upon its application "for its 
use for the purpose of extinguishing fires an-d for domestic and other purposes" 
at a charge for such water and upon such terms and conditions as are agreed upon 
annually with the selectmen of such town. It was provided that such sale and 
delivery should not constitute the town a member of the Metropolitan Water 
District. 

You have informed me that, on August 6, 1941, the Town of Saugus made appli- 
cation to your Commission for the purchase of water under the provisions of said 
chapter 566. Acting upon this application, your Commission entered into an 
agreement with the town to furnish water from its system to the town upon terms 



P.D. 12. 81 

and conditions which purported to cover the town's entire liabiUty for water so 
furnished, in<!hiding a charge covering the cost of connection with the pipes of the 
Metropohtan Water District. This agreement is still in force, but you have in- 
formed me that a connection of the pipes of the town with those of the Metropolitan 
Water District has not yet been made. 

It is plain from the above-quoted portion of section 4 of said chapter 727 that 
only two classes of towns are required to pay the stand-by charge or premium 
described therein. These are (1) towns which at the time of the enactment of said 
chapter 727 had a connection with the pipes of the metropolitan water system; 
and (2) towns which make application for such a connection "under any provision 
of this act," namely, said chapter 727. 

You have informed me that the connection of the pipes of the Town of Saugus 
with those of the metropolitan water system is "not yet made." This being so, 
the town does not come within the first class of towns described in said chapter 
727, section 4. 

Nor does the Town of Saugus come within the second class of towns required 
by said chapter 727, section 4, to pay stand-by charges, since the town's appli- 
cation for a connection with the pipes of the Metropohtan Water District was 
made pursuant to St. 1941, c. 566, and not "under any provision" of said chapter 
727. 

Consequently, the Towii of Sougus is under no liability to pay a stand-by 
charge for a connection of its water pipes with those of the Metropolitan Water 
District. 

Very truly yours, 

Robert T. Bushnell, Attorney/ General. 

State Racing Commission — Public Hearing on Application for License for a Dog 
Racing Meeting ■ — Form of Notice. 

March 5, 1942. 

Hon. Charles F. Connors, Chairman, State Racing Commission. 

Dear Sir: — You have asked my opinion as to whether a notice of a pubhc 
hearing on an application for a license to conduct a dog racing meeting in Revere 
as given by you, of which you have sent me a copy, is correct "with particular 
reference to the citation of the law" contained in it. 

I am of the opinion that the form of the notice complies with the requirements 
of the law. It reads: 

"Notice of Public Hearing. 

Notice is hereby given that an application has been filed by the Revere Racing 
Association, Inc. \\ith the State Racing Commission for a license to conduct a dog 
racing meeting in Revere, Suffolk County, on a track known as Wonderland Park, 
located on Veteran of Foreign Wars Parkway, Revere. In accordance with sec- 
tion 3, chapter 128A of the General Laws, a public hearing will be held at Revere 
City Hall, Revere, on Tuesday, P'ebruary 17, 1942, at 7:00 p.m. on said application. 

State Racing Commission." 

You have informed me that at the public hearing held in accordance with this 
notice it was contended that it was not a proper or legal notice because it stated 
that the hearing would be held "in accordance with section 3, chapter 128A of 



82 P.D. 12. 

the General Laws," whereas, it was contended, it should have stated that the hear- 
ing was to be held "under section 3 of chapter 374 of the Acts and Resolves of 
1934." 

I am of the opinion that such contentions are not correct as a matter of law. 

St. 1934, c. 374, § 3, provides: 

"The General Laws are hereby amended by inserting after chapter one hundred 
and twenty-eight, as appearing in the Tercentenary Edition, the following new 
chapter : — 

CHAPTER 128A. 
Horse and Dog Racing Meetings." 

and then sets forth the entire text of the new chapter so inserted in the General 
Laws. 
Section 3 of this new chapter 128A provides, in part, in its first paragraph: 

"If any application for a license, filed as provided by section two, shall be in 
accordance with the provisions of this chapter, the commission may issue a license 
to the applicant to conduct a racing meeting, in accordance with the provisions of 
this chapter, at the race track specified in such application. ..." 

Later the foregoing part was amended by St. 1935, c. 454, § 2, so as to make 
provision for notice and hearing before the issuance of a license to conduct a 
lacing meeting. Said St. 1935, c. 454, § 2, amended the foregoing quoted part of 
c. 128A, § 3, so that it now reads: 

"If any application for a license, filed as provided by section two, shall be in 
accordance with the provisions of this chapter, the commission, after reasonable 
notice and a public hearing in the city or town wherein the license is to be' exercised, 
may issue a license to the applicant to conduct a racing meeting, in accordance 
with this chapter, ..." 

No particular form for the required "reasonable notice" was prescribed and there 
is no requirement that the notice shall refer to the statutory provisions pursuant 
to which the hearing is to be held. It is apparent, therefore, that the notice, as 
published, is "reasonable" as to content unless the reference to "section 3, chap- 
ter 128A of the General Laws" without reference to the act by which that chapter 
was inserted in the General Laws is misleading or deceptive. 

In my opinion, the notice cannot be held to be misleading or deceptive in this 
regard. 

I have quoted that portion of St. 1934, c. 374, § 3, which specifically provides 
for the insertion of a new chapter 128 A in the General Laws. This provision is 
in accordance with the general legislative policy, as set forth in G. L. (Ter. Ed.) 
c. 3, §§ 51-54, to incorporate in the General Laws statutes embodjdng legislation 
of a general character rather than to treat such statutes as special measures or as 
acts of a particular legislative year. 

By G. L. (Ter. Ed.) c. 3, § 53, a copy of aU amendments of and additions to the 
General Laws is required to be filed in the office of the .State Secretary, open to 
the inspection of the public. Consequently, a person whose attention was di- 
rected by the notice in question to "section 3, chapter 128A of the General 
Laws" would be able, even without a reference to St. 1934, c. 374, to see said 
chapter 128A, together with amendments and additions thereto, including the 



P.D. 12. 83 

amendment made by said St. 1935, c. 454, § 2, by applying at the office of the 
State Secretary. 

It follows that reference to "section 3, chapter 128A of the General Laws", 
in the notice in question, was sufficient to enable anyone interested in the general 
subject matter of the hearing referred to therein to acquaint himself fully with 
the particular statutory enactment by virtue of which the hearing was to be held. 

There was no failure in the wording of the notice to comply with any statutory 
requirement, and it omitted no essential matter and contained no misleading 
statement. It was valid as a "reasonable notice " of the hearing which it advertised. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Warden of State Prison — Purchase of Defense Stamps for Inmates — Rules and 

Regidations. 

March 6, 1942. 
Hon, Arthur T. Lyman, Commissioner of Correction. 

Dear Sir: — You have asked my opinion as to whether the Warden of the 
State Prison has authority to purchase defense stamps or bonds for an inmate at 
the latter's request from the inmate's accumulated share of the profits of his labor 
in prison industry carried on in State Prison under the provisions of G. L. (Ter. 
Ed.) c. 127, § 48. 

I am of the opinion that, although the statute itself does not by specific terms 
provide for the exercise of such authority, provision may be made therefor by the 
addition of a new rule to the "Rules and Regulations governing the payment of 
wages to inmates at the State Prison" heretofore made by the Warden, with the 
approval of the Governor and Council. 

The rule-making power in this request is contained in the following provisions 
of section 48A: 

"At the state prison, . . . there may be established a system of compensation 
for its inmates, to be paid out of the excess profits from the industries in that insti- 
tution as hereinafter provided. As a basis for determining such excess profits, the 
minimum rate of profit on prison industries shall be twenty-five per cent of the cost 
as hereinafter defined at the state prison, . . . Whenever the rate of profit shall 
be in excess of such minimum rate . . . the excess profit may be disposed of in the 
following manner: one half shall be placed- to the credit of the prison industries 
fund of such institution and one half to the credit of such of the inmates of such 
institution as are entitled thereto in accordance with rides and regulations, which 
are hereby authorized to be established by the warden or superintendent of said insti- 
tution to carry oid the purposes of this section. Said rules and regulations shall take 
effect when approved by the commissioner of correction and by the governor and 
council. ..." 

You have advised me that: 

"On many occasions men originally committed to the State Prison, who have 
earned an amount of money credited to their name under section 48, are transferred 
to the State Farm, Massachusetts Reformatory or State Prison Colony. All 
moneys and personal property in the hands of the warden are transferred with the 
prisoner and turned over to the superintendent of the institution to which the 
prisoner is transferred." 

You have inquired as to whether the superintendent of one of such institutions 
to which an inmate of the State Prison and his money were transferred may pur- 



84 P.D. 12. 

chase said bonds and stamps from the accumulated credits of such inmate trans- 
ferred with him, and whether such securities should be purchased in the name of 
the inmate or in the name of the superintendent as trustee. 

I am of the opinion that by the adoption of a rule such as I have referred to, 
a superintendent may be authorized to make such a purchase, and I perceive no 
reason why the securities should not be purchased in the name of the inmate him- 
self and then held for him until his release. 

I suggest as appropriate for the accomplishment of the desired salutary and 
patriotic result the following new rule: 

"The Rules and Regulations governing the payment of wages to inmates at the 
State Prison approved by the Governor and Council on March 20, 1929, are hereby 
amended by adding thereto the following rule : 

7 A . Any part or portions of the share of profits credited to an inmate under Rules 
6, 7 and 8 may at his written request be expended by the Warden for the purchase 
of United States Savings Bonds and Stamps. 

Such bonds and stamps so purchased, or the proceeds thereof, shall be held for 
an inmate in the same manner as other moneys and personal property belonging 
to an inmate, and shall be delivered to the inmate upon his discharge in the manner 
provided for with regard to an inmate's total accumulations under Rule 8. 



Warden. 
Approved: 

Commissioner of Correction. 

Approved: 

Governor and Council." 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Milk Control Board — Interpretation of Statute — Officers of Co-operative Associa- 
tions — Authority with Relation to Petition by Members under G. L. {Ter. Ed.) 
C. HA, § 12. 

March 6, 1942. 

Milk Control Board. 

Gentlemen: — In requesting my opinion as to the proper interpretation of 
G. L. (Ter. Ed.) c. 94A, § 12, inserted by St. 1941, c. 691, you have referred to 
certain "bona fide co-operative associations of milk producers" which, you state, 
are parties to agreements with their respective members whereby certain powers 
of representation are conferred upon said associations by their members. You 
have further advised me that the grants of authority contained in such agreements 
generally fall into one of two classes : 

1. In one of these classes, the association is "constituted such member's exclu- 
sive agent for the marketing of such member's entire production of milk for sale." 

2. In the second class of agreement, the co-operative association is not only 
made the member's exclusive marketing agent but is also appointed the member's 
"exclusive agent to represent him in all matters pertaining to milk marketing 
codes, licenses, agreements and regulations under laws now or hereafter enacted 
by the United States Government or by the Commonwealth of Massachusetts, 
concerning which the association deems it advisable to have unit action by or for 
its members." 



P.D. 12. 85 

Your specific question is wliether the officers of co-operative associations, act- 
ing under either of the foregoing types of authorization in signing the names of 
their respective milk producer members to a petition recjuesting the fixing of resale 
prices of milk, will thereby satisfy tlie requirements of said G. L. (Ter. Ed.) c. 94A, 
§ 12, with respect to tlie signing of such petition. 

In my opinion, your question must be answered in the negative. 

The pertinent provisions of said section 12 read as follows: 

"Upon petition in writing, with an affida\it that it is signed by not less than fifty- 
one per cent of the Mossachusetts producers who, during the month of April in the 
license year next preceding that in which such petition is filed, delivered milk for 
sale or distribution as fluid milk in any market, requesting the l)oard to establish 
minimum prices, wholesale or retail, or both, for milk for such market, and if, upon 
making such examination and investigation as is authorized by this chapter, and 
after public hearing . . ., the board finds . . . that such petition is signed by not 
less than fifty-one per cent of such producers . . . The board may . . . issue such 
orders, rules and regulations as may be necessary, including the fixing by official 
order of minimum wholesale or retail prices, or both, for milk sold within the market 
affected . . . The board may in like manner at any time alter, revise, amend or 
rescind the prices so fixed. ..." 

For present purposes, it may be conceded at the outset that agreements of the 
types referred to by you, and especially agreements of the type described in class 2 
above, confer very broad authority upon co-operative associations. It may further 
be conceded that, as between member and co-operative association, such a grant 
of authority would encompass the signing of the member's name by officers of the 
association to a petition for resale price fixing. These concessions, however, are 
not decisive as to whether the signing of the members' names by the association 
officers constitutes compliance with the prerequisites prescribed by section 12. 
The answer to that question depends upon the manifest intent of the Legislature 
as to the manner of ascertaining the wishes of a majority of the producers in a 
given marketing area with respect to the fixing or modification of resale prices. 

In my opinion, the requirements that the petition be "signed by not less than 
fifty-one per cent of the Massachusetts producers" in a given area and that the 
Board shall find, after hearing, that the petition is "signed by not less than fifty- 
one per cent of such producers" were inserted by the Legislature for the purpose 
of providing a simple and direct method of determining the actual wishes of that 
proportion of the total number of individual producers. While the statute maj'' 
not require that each petitioning producer shall sign the petition in his own hand- 
writing (cf. Finnegan v. Lucy, 157 Mass. 439, 441), it does, in my opinion, require 
that an agent signing in behalf of a producer shall do so only pursuant to authority 
expressly conferred with respect to the specific petition. It does not appear to 
have been the intent of the Legislature that co-operative associations should be 
enabled to initiate the issuance or revision of such resale price-fixing orders by 
signing the names of their members to a petition, irrespective of the wishes of such 
individual members with respect thereto at the time the petition is so signed. 

The foregoing conclusion as to the proper interpretation of section 12 of chap- 
ter 94A is supported by an examination of its legislative histoiy, which may prop- 
erly be considered in construing the statute {Carlos Ruggles Luiuber Co. v. Com- 
monwealth, 261 Mass. 445, 447; Loring v. ]'ovng, 239 Mass. 349, 367, 368). Thus, 
the original counterpart of section 12 was contained in St. 1934, c. 376, § 15 (C). 



86 P.D. 12. 

It required a petition by only twenty-five per cent of the producers, as compared 
with the present fifty-one per cent, for the original issuance of a resale price-fixing 
order. It did not in terms require that the petition be "signed" by the producers 
or that the Milk Control Board make any finding with respect to the percentage 
of producers who "signed" the petition, as does the present law. It conferred 
broad powers upon the Milk Control Board to alter or rescind such orders without 
petition and without regard to the number of individual producers who might 
favor or oppose such alteration or rescission, whereas the present act authorizes 
alteration or revision of such orders, in most instances, only upon petition signed 
by at least fifty-one per cent of the producers (see Opinion of Attorney General 
to Milk Control Board, January 27, 1942). All of these modifications of St. 1934, 
c. 376, § 15 (C), contained in the new G. L. (Ter. Ed.) c. 94A, § 12, manifest a 
legislative intent to vest a large share of the initiative with respect to such resale 
price-fixing orders in the individual producers who deliver milk for sale in the 
marketing areas affected thereby. 

Even more significant than the foregoing factors, however, is the manner in 
which the Legislature dealt with a specific proposal to permit co-operative asso- 
ciations to act in such matters in the names of their members. Thus, House Bill 
No. 1707, from which St. 1941, c. 691, is derived, contained a section 25 which in 
turn was subdivided into subsections (a), (6) and (c). Subsection (c) of said sec- 
tion 25 read as follows; 

"If a producer's co-operative association in good faith engaged in marketing 
within the commonwealth milk produced by its members is by written contract or 
agreement signed by a member of such association, duly authorized so to represent 
such member, a petition or vote signed or cast by such association and expressly 
stating that it is filed with such intent, shall, for the purposes of petition or referen- 
dum under this chapter be received by the board as and deemed to be the petition 
or vote of such member." 

When St. 1941, c. 691, was enacted, the substance of subsections (a) and (b) 
of section 25 of House Bill No. 1707 was included in section 15 of the new act, 
but subsection (c) quoted above, was entirely eliminated. This action by the 
Legislature is impressive evidence of a legislative intent not to permit the require- 
ments of producer petitions or signatures to be satisfied by the submission of peti- 
tions or signatures of co-operative associations purporting to act in the names of 
their producer members. 

My conclusion as to the correct interpretation of said section 12 is not affected 
by the prevailing practice before the federal regulatory agency, since the pertinent 
federal statute specifically provides that the action of co-operative associations in 
these matters shaU be regarded as the action of their members. (See Act of June 
3, 1937, § 8c (12), 7 U. S. C, c. 26, § 608G (12); United States v. Rock Royal Co- 
operative Inc., 307 U. S. 533, 548, 559). 

In stating my opinion that the prerequisite signatures of producers may not be 
affixed to petitions under section 12 by co-operative associations acting under a 
general grant of authority contained in membership agreements, I do not intend 
to imply that each producer must sign such petition in his own handwriting or 
that producer associations may not in another manner be authorized to sign the 
names of their members to such petitions. I am of the opinion that this statute 
does not require the personal signature of the producers (see Finnegan v. Lucy, 



P.D. 12. 87 

157 Mass. 439, 441), and that the name of a producer may properly and effectively 
be signed to such petition by an agent (including an officer of a co-operative asso- 
ciation), pro\ided that authority is expressly conferred upon the agent by the 
producer with particular reference to the specific petition which is so to be signed 
by the agent. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Veteran — Soldiers' Relief — Selection of Veteran's Own Physician — School 

Physician. 

March 16, 1942. 

Hon. W. Rea Long, Commissioner of State Aid and Pensions. 

Dear Sir: — You have advised me that in the City of LawTence a veteran re- 
ceiving medical treatment or aid as soldiers' relief under the provisions of G. L. 
(Ter. Ed.) c. 115, § 17, as amended, is not permitted by the local authorities "to 
select his own physician in case that physician has an appointment as a city or 
school physician." 

You have asked me if this procedure on the part of the city officials is prohibited 
by those provisions of said G. L. (Ter. Ed.) c. 115, § 17, which prohibit interference 
with the recipient of such aid in the matter of the person to whom he shall give his 
custom. 

I am of the opinion that in the case of officials of the City of Lawrence such 
procedure is not prohibited by the said provisions of G. L. (Ter. Ed.) c. 115, § 17, 
as amended, by reason of the terms of section 37 of the revised charter of the City 
of Lawrence (St. 1911, c. 621, Part II, § 37, adopted Nov. 7, 1911). 

Said section 37 of the revised charter reads: 

"It shall be unlawful for any member of the City Council or School Committee, 
or for any officer or employee of the City, directly or indirectly to make a contract ex- 
pressed or implied ivith the City, or to receive any commission, wages, discount, 
bonus, gift, contribution or reward from, or any share in the profits of, any person 
or corporation making or perfonning such a contract. No funds of the City of 
LawTence shall be deposited in any bank or trust company of which the City Treas- 
urer or the treasurer of the sinking fund or any sinking fund commissioner is an 
officer, agent or stockholder. A violatioh of any provision of this section shall 
render the contract in respect to which such violation occurs voidable at the option 
of the city. Any person violating any provision of this section shall be punished 
by a fine of not more than one thousand dollars or by imprisonment for not more 
than one year, or by both such fine and imprisonment." 

Under G. L. (Ter. Ed.) c. 115, § 17, as amended, a city is required to supply 
aid and treatment as soldiers' relief to veterans, and to pay for the same. 

The provisions of said G. L. (Ter. Ed.) c. 115, § 17, as amended, directly ap- 
plicable to the subject matter of your inquiry, read: 

"Whenever money is expended for any person within the provisions hereof, no 
officer of any town shall, directly or indirectly, solicit, direct, or in any way interfere 
with the recipient of such aid in the matter of the person, partnership or corporation 
to whom or to which, or the place at which, the recipient shall give his custom; 
and whoever violates this provision shall be punished by a fine of not less than 
twenty-five nor more than five hundred dollars." 



88 P.D. 12. 

The above provisions of G. L. (Ter. Ed.) c. 115, § 17, as amended, were first 
enacted and inserted in said section 17 by St. 1932, c. 63. 

Said St. 1932, c. 63, is a general act covering the subject matter in a broad 
fashion and was enacted twenty-one years after St. 1911, c. 621, which latter statute 
is a special act deaUng with the government and administration of a particular 
city. Under familiar principles of statutory construction it is to be held that it 
was not the intent of the Legislature that the general act should supersede the 
earlier special act, but rather that the provisions of the earlier act or revised charter 
of the city should stand as exceptions to the general terms of the later statute. 
Broivn v. Lowell, 8 Met. 172; Copeland v. Springfield, 166 Mass. 498, 504, and 
cases there cited. 

So construed, the applicable provisions of said G. L. (Ter. Ed.) c. 115, § 17, as 
amended, do not embrace within their terms as forbidden actions refusal to permit 
employees of the City of Lawrence, such as city or school physicians, to render aid 
or treatment to veterans as soldiers' relief for which they would be recompensed 
by the city under an implied contract growing out of the duty placed upon cities 
to pay for such aid or treatment furnished as soldiers' relief. 

The prohibitions of said section 37 of the charter of the City of Lawrence, upon 
the participation in express or implied contracts of the city by its officers or em- 
ployees, are in line with the general public policy of the Commonwealth forbidding 
officers and employees of the State and political subdivisions thereof from enter- 
ing into contracts with the authority which they serve, as shown in the general 
provisions of G. L. (Ter. Ed.) c. 268, §§ 9-11. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

County Commissioners — Eminent Domain — Land Acquired by the Commonwealth 

for State Forests. 

March 18, 1942. 
Hon. Raymond J. Kenney, Commissioner of Conservation. 

Dear Sir : — You have asked my advice as to whether county commissioners, 
under their authority to take land for highway purposes, have the right to take 
by eminent domain land which has been acquired by the Commonwealth for a 
state forest. I assume that the authority of county commissioners to take land 
by eminent domain, to which you refer, is the authority conferred upon them in 
general terms by G. L. (Ter. Ed.) c. 82, § 7, as amended, to take land and ease- 
ments and rights therein for highway purposes. 

In my opinion, county commissioners have no authority under said G. L. (Ter. 
Ed.) c. 82, § 7, as amended, to take land acquired by the Commonwealth for a 
state forest. 

It is a general principle of law that statutes are not to be interpreted as imposing 
burdens on the sovereign, the Commonwealth, unless a clear legislative intent that 
they should do so is apparent. Teasdale v. Newell, &c. Construction Co., 192 Mass. 
440, 443; Commonwealth v. Boston Terminal Co., 185 Mass. 281. I Op. Atty. Gen. 
288, 296-297; VIII ibid. 473. 

It is obvious that if a general grant of authority by statute, such as the one 
under consideration, were construed so as to permit a political subdivision of the 
Commonwealth to take any property of the Commonwealth by eminent domain 



P.D. 12. 89 

for highway purposes, it would be jxjssible for such subdivision to obstruct or im- 
pede the normal functions of the Commonwealth in its sovereign capacity. Such 
an impHcation cannot be drawn from a general grant of authority. 

.A different situation might be presented by a statute which in specific terms 
authorized a political subdivision to make takings of land in a particular area for 
a designated purpose, which could be accomplished only by taking land o\vned 
by the Commonwealth. In such a case a grant of authority to take land of the 
Commonwealth might be found to exist by necessary implication. Old Colony 
Railroad v. Framinghavi Water Co., 153 Mass. 561, 565. 

Title to land acquired for state forests is vested in the Commonwealth by the 
provisions of G. L. (Ter. Ed.) c. 132, § 30, and § 33, as amended. VIII Op. Atty. 
Gen. 473, 474. Accordingly a political subdivision may not take such land from 
the Commonwealth under a general authority to exercise the power of eminent 
domain for highway purposes. 

Such an invalid taking imposes no duty upon you to give a deed of any land of 
the Commonwealth which it was sought to take. However, county commissioners 
are not wholly prevented from acquiring land in state forests for highway purposes 
where no detriment will result to the Commonwealth. Under G. L. (Ter. Ed.) 
c. 132, § 34A, you have authority, with the approval of the Governor and Coun- 
cil, and after a public hearing, to sell any land acquired under said sections 30 
and 33, and to grant rights of way for public highways over any such land, though 
by the express terms of said section 34A you are not required so to do unless in 
your "judgment such sale ... or grant is advantageous to the commonwealth." 
Moreover, G. L. (Ter. Ed.) c. 30, § 44A, provides that the head of a state depart- 
ment having control of any land of the Commonwealth may, "subject to the ap- 
proval of the governor and council, sell and convey to any county, city or town 
... so much of such land as may be necessary for the laying out or relocation of 
any highway." These provisions are not mandatory but if, in your best judgment, 
such conveyance would be for the best interests of the Commonwealth, you may, 
with the approval of the Governor and Council, make a conveyance of land in a 
state forest to a county for the purpose of laying out and relocating a highway. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Civil Service — Acceptance of Section hi of General Laws {Ter. Ed.), Chapter SI, by 
Municipalities — Labor Service. 

March 18, 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to "whether a town which has 
never accepted the provisions of G. L. (Ter. Ed.) c. 31, or corresponding provisions 
of earlier laws, may classify its labor service only by the acceptance of section 47 of 
chapter 31." 

By the word "classify" I assume that j^ou mean bring within the provisions of 
the Civil Service Law and Rules. 

I am of the opinion that a town cannot classify "li.s labor service only" by the 
acceptance of said section 47 without also bringing under the terms of Civil Service 
Law all of its eligible officers and employees. 



90 P.D. 12. 

Said section 47 reads : 

"This chapter shall continue in force in all the cities of the commonwealth and 
in all towns of more than twelve thousand inhabitants which have accepted cor- 
responding provisions of earlier laws, and shall be in force in all such towns which 
hereafter accept it by vote at a town meeting. The provisions of this chapter and 
the rules established under it relative to employment of laborers designated as the 
'labor service' shall not be in force in any city of less than one hundred thousand 
inhabitants, which has not heretofore accepted the corresponding provisions of 
earlier laws, until said provisions are accepted by the city council." 

Although said section 47 makes provision in its second sentence whereby a city 
of less than one hundred thousand inhabitants may classify its laborers under the 
provisions of the Civil Service Law, the section provides no means by which a town 
may bring its labor service within the sweep of the classified civil service without 
also including therein its official service. Nor is there any procedure provided by 
the statutes whereby a town which has not accepted the provisions of said chapter 
31 or corresponding provisions of earlier laws may bring into the classified civil 
service the members of its labor service alone as distinguished from its other 
employees. 

If a town desires to bring its labor service within the provisions of the Civil 
Service Law and Rules it may do so by a vote accepting said section 47. Such a 
vote accomplishes the desired result but it also has the effect of placing all eligible 
town officers and employees under the Civil Service Law. 

In its original form the Civil Service Law was made appHcable to both the official 
and the labor services of all cities by St. 1884, c. 320. By St. 1894, c. 267, said law 
was made applicable to any town having a population of over twelve thousand 
upon its acceptance by the voters. No provision was made in said chapter 267 for 
the acceptance by a town of the Civil Service Law to apply to its labor service 
alone. 

By St. 1896, c. 449, specific provision was made whereby so much of the Civil 
Service Law and Rules as related to the labor service should not take effect in 
cities of less than one hundred thousand population except upon specific acceptance 
of that portion of the Civil Service Law which was applicable to the labor service 
of such cities. No provision was made in said chapter 449 for a like procedure by 
towns. 

The provisions of said St. 1894, c. 267, and St. 1896, c. 449, were codified in the 
Revised Laws in section 36 of chapter 19, the then Civil Service Law, as follows: 

"This chapter shall be in force in any town of more than twelve thousand in- 
habitants when accepted by it. So much of this chapter and the rules established 
under it as relate to the employment of laborers, designated as the 'Labor Service,' 
shall not be in force in any city of less than one hundred thousand inhabitants until 
the city council, with the approval of the mayor, accepts the same." 

These provisions in substantially the same form now appear as said section 47 
of G. L. (Ter. Ed.) c. 31. 

If a town of over twelve thousand inhabitants desires to place its labor service 
under civil service it can do so by a vote at a town meeting accepting G. L. (Ter. 
Ed.) c. 31, but by so doing it will place not only those in its labor service but all of 
its eUgible officers and employees under civil service. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



P.D. 12. 91 

Massachusetts Hospital School — A on-resident Children. 

April 6, 1942. 
Dr. John E. Fish, Superintendent, Massachusetts Hospital School. 

Dear Sir : — You have asked my opinion as to the authority of the Trustees 
of the Massachusetts Hospital School to admit to the school children who are not 
residents of Massachusetts. 

I am of the opinion that the trustees have no such authority. 

G. L. (Ter. Ed.) c. 121, § 28, reads: 

"The Massachusetts hospital school shall be maintained for the education and 
care of crippled and defonned children of the commonwealth. The board of trus- 
tees of said school shall have the same powers and shall be required to perform the 
same duties in the management and control of the school as are vested in and re- 
quired of the trustees of the various state hospitals under chapter one hundred and 
twenty-three, so far as applicable." 

St. 1904, c. 446, § 1, from which said section 28 derives, which originally provided 
for the creation of said board of trustees and the erection and establishment of the 
school, defined the purpose of the board of trustees in the following language : 

"the purpose of which shall be the education and care of the crippled and deformed 
children of the commonwealth." (Italics mine.) 

The intent of the Legislature, as expressed in said section 28, appears to have 
been to provide that the school should be maintained for the exclusive benefit of 
children who are residents of the Commonwealth. No provision of the statute 
gives the trustees any rule-making authority over admissions which indicates any 
legislative grant of power to admit children having no residence or settlement in 
the Commonwealth. Section 31 of said chapter 121 contains detailed provisions 
with relation to the admission to and support of children in the hospital, but they 
are all made to apply to children "entitled to receive the benefit of the school," 
and the section contains no phrase indicating the vesting of power or discretion 
in the trustees to enlarge the class of children mentioned in the quoted phrase so 
as to embrace others than those designated in said section 28 as "children of the 
commonwealth." 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Labor Service — Transfers. 

April 7, 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

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

"Has the Division of Civil Service any right to approve the permanent transfer 
of a person in the official service to a position in the labor service provided the con- 
sent of the employee and the respective appointing authorities has been obtained, 
and the employee has been duly certified for permanent employment and actually 
employed for at least one year?" 

I answer your question in the affirmative. 



92 P.D. 12. 

Rule 3 of the Civil Service Rules made under the provisions of G. L. (Ter. Ed.) 
c. 31, provides: 

"The offices and positions to be filled under these rules are divided into three 
divisions; the first to be known as the Official Service of the Commonwealth and 
the several cities thereof; the second as the Labor Service; and the third as the 
Division of State and Municipal Appointees." 

Rule 32 provides in section 1 : 

"The Labor Service shall be subject to the provisions of the foregoing rules 
(Civil Service Rules 1-31, inclusive) in so far as they are not incoijsistent with the 
following rules especially applicable to the Labor Service." 

One of "the foregoing rules" (Rule 27) relates to transfers. It is not incon- 
sistent with the "rules especially applicable to the Labor Service" referred to in 
section 1 of said Rule 32, as "the following rules." Rule 27 provides: 

"1. Any person duly certified for permanent employment and actually employed 
for at least one year (including the time of probationary service) in any classified 
position in the Official Service may, after written application to the Commissioner 
by the respective appointing officers and upon consent of the Commissioner, be 
transferred to another position with or without examination, as the Commissioner 
may order; provided, that in the discretion of the Commissioner, the person to be 
transferred must at the time of transfer possess the qualifications required for an 
original appointment to the new position." 

It is to be noted that Rule 27 does not provide that one employed "in any clas- 
sified position in the Official Service" may be transferred to another position in 
the official service. It states that such a person may be transferred "to another 
position." The words "another position" as so used include within their scope not 
only positions in the "Oflficial Service" but any of the positions described in said 
Rule 3, which include positions in the Labor Service. 

Since the adoption of said Rule 27, with relation to transfers, the Legislature, 
in 1939, made specific provisions for the formulation of rules relating to transfers 
by the Commission and by the Director. (G. L. (Ter. Ed.) c. 31, § 3, el. (h), and 
§ 16A, as inserted by St. 1939, c. 238 and c. 506,. respectively.) However, no 
new rule or rules relative to transfers have been made since such action of the 
Legislature. There is nothing contained in the provisions so enacted by the Legis- 
lature in 1939 which vitiates said Rule 27 or requires a different interpretation of 
its effect than that which I have set forth. 

You have also asked my opinion upon a question relative to seniority in em- 
ployment with relation to a person who has been transferred from the official 
service to a position in the labor service and whom it is now proposed to transfer 
from the labor sen'ice to his original position in the official service. 

Said Rule 27 contains no provision authorizing the transfer of an employee in 
the labor service to a position in the official service, nor is there any provision of 
the Rules or of the Civil Service Law (G. L. (Ter. Ed.) c. 31, as amended) which 
authorizes such a transfer. Since this is so, there will be no occasion for your 
consideration of the problem of seniority with respect to an employee whose trans- 
fer from the labor service to the official service has been proposed. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



P.D. 12. 93 

Civil Service — Director — Municipal Labor Service — Roster — Seniority. 

April 7, 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have informed me that the labor service of the City of Quincy 
was placed under Civil Service on January 12, 1935, and you have asked my 
opinion as to whether you have authority under St. 1941, cc. 165 and 290, "to 
establish a seniority roster" for such labor service, "based on" an "exhaustive 
pay-roll study made by this Division." 

I am of the opinion that you have no such authority. 

St. 1941, c. 165, amended G. L. (Ter. Ed.) c. 31, by inserting therein a new 
section, 3lB. Under the provisions of this new section the Director of Civil Service 
is authorized to prepare "rosters of all positions in the classified civil ser\'ice . . . 
of each city and town," subject to said chapter 31, "and of the persons whose 
employment in such positions, respectively, whether permanent or temporary, is 
legal." The Director is also authorized to make on the proper roster a record 
of the change in status of any employee whose name is on a roster of persons 
newly employed in, or appointed to, such service. It is provided that city or 
town treasurers shall not pay compensation to any person as an employee whose 
name does not appear on such a roster. The statute does not, however, authorize 
you to establish or determine the seniority of employees in connection with the 
preparation and keeping of such rosters. 

St. 1941, c. 290, amended said G. L. (Ter. Ed.) c. 31, by inserting therein an- 
other new section, 47B, which provides that "Whenever any class of employees in 
any city or town not already in the classified official or labor service is placed 
therein by statute or otherwise," certain powers may be exercised with relation 
to the establishment of the seniority of such employees. The statute is not retro- 
active in effect and was plainly intended to operate only in regard to classes of 
employees gathered under the protection of the Civil Service Law after the date 
of its enactment. 

You do not derive authority from these statutes to establish seniority by means 
of a roster with respect to employees in the labor sei'vice of Quincy who were 
placed under Civil Service in 1935. 

Furthermore, said section 47B provides that whenever any class of employees 
in any city or town not already in the classified official or labor service is placed 
therein, 

"... the appointing authority of said city or town shall forthwith submit to the 
director a list of all the employees of said class who are actually in the employ of 
said city or town at that time. Said list shall state the type and kind of work, the 
length of service, and the compensation of each person so included and any other 
information which the director may request. ..." 

The section further provides that upon receipt of said list from the appointing 
authority of said city or town the Director shall cause a copy thereof to be posted 
in a public place in said city or town for a period of thirty days. At the expiration 
of said thirty-day period the Director shall forthwith classify ai\d fi.v the seniority 
of said employees in accordance irith said list and shall record said classification 
and seniority dates in the permanent records of the Division. 



94 P.D. 12. 

It is plain from the foregoing provision that in the first instance the Director is 
required to fix the seniority of employees not in accordance with his own investi- 
gations or judgment, but only in accordance with seniority as disclosed by the 
list furnished by the appointing authority, which must state the length of each 
employee's service and any other information requested by the Director which 
might include the specific date of appointment of each employee. 

The section further provides that: 

"... If, within ten days after the posting of said list, any person whose rights are 
alleged to have been affected shall petition the director in writing to establish the 
correctness thereof, the director shall forthwith hold a public hearing and shall 
hear all parties concerned and may make such changes in said list as he may deem 
necessary, but no change shall be made more than thirty days after the posting of 
said list." 

It is only after a petition to establish the correctness of a list submitted by an 
appointing authority and after a public hearing thereon that the Director has 
authority, independent of that of the appointing authority, to exercise his own 
judgment in establishing seniority. 

Due notice of such public hearing must be given to all parties concerned, and 
corrections or changes made in the list by the Director must be based upon evi- 
dence introduced at the hearing. Such information as he may have acquired by 
independent investigation must be introduced in evidence at the hearing if it is 
to be considered by the Director in arriving at his decision on the petition to estab- 
lish the correctness of the list. American Emploijers' Ins. Co. v. Commissioner of 
Insurance, 298 Mass. 161, 168, 169. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Board of Registration of Hairdressers — Rules — Beauty Schools and Shops — 
Charges — Premiums — Conduct. 

April 7, 1942. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — You have requested my opinion with respect to certain ques- 
tions of law propounded by the Board of Registration of Hairdressers. 

1. In the first of these questions you ask whether "beauty schools" may make 
a charge for materials used by students in practice work upon members of the 
public, the charge to be paid by the public. 

A negative answer is required to this question. The pertinent statute specifi- 
cally provides that "no student shall practice hairdressing or manicuring upon 
any paying customer." G. L. (Ter. Ed.) c. 112, § 87U, as amended by St. 1941, 
c. 626, § 3. 

2. You next inquire whether beauty shops may "offer defense stamps with 
certain branches of work." In my opinion, beauty shops may conduct their busi- 
ness in the manner stated in your question. There is no provision of law which 
forbids beauty shops to offer premiums, prizes or discounts, nor is there any 
provision of law which would authorize the Board of Registration of Hairdressers 
to prohibit the oifering or giving of such premiums, prizes or discounts. The 
rule-making powers of the Board of Registration of Hairdressers are specifically 
limited by the provision that the Board shall not have power "to regulate or fix 



P.D. 12. 95 

compensation or prices." G. L. (Ter. Ed.) c. 112, § 87CC, as amended by St. 1941, 
c. 626, § 8. See also Sperry & Hutchinson Co. v. Director, Division on the Necessaries 
of Life, 307 Mass. 408. 

With respect to your third question, which reads: 

"Can hairdressers and manicurists and students wear slacks while attending 
any person in any shop or school?" 

I call your attention to the specific limitation upon the power of the Board of 
Registration of Hairdressers contained in G. L. (Ter. Ed.) c. 112, § 87CC, as 
amended. This provision prevents the Board from interfering "in any way with 
the conduct of the business of hairdressing or manicuring, except so far as is neces- 
sary for the protection of the public health, safety or morals." I am aware of no 
factual basis upon which it could be held that the practice referred to in your 
question can be regulated by the Board on the ground that it "is necessary for the 
protection of the public health, safety or morals." 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Retirement — Separation from Service — Veteran. 

April 7, 1942. 
Metropolitan District Commission. 

Gentlemen: — You have recently requested an opinion as to whether a certain 
person, who has applied to your Commission for retirement under the provisions 
of G. L. (Ter. Ed.) c. 32, § 57, may be retired thereunder. I have been advised by 
your letter and by statements of the secretary of your Commission of the following 
facts pertinent to your question: 

The applicant for retirement was first employed by the Commission on March 
23, 1931. He continued to work until October 29, 1939, when he was injured, and 
since that time he has been receiving compensation under G, L. (Ter. Ed.) c. 152, 
§§ 69-75. On January 30, 1942, he applied for retirement under G. L. (Ter. Ed.) 
c. 32, § 57, claiming to be incapacitated for active service. He has been receiving 
compensation for total disability since his injury on October 29, 1939, and he has 
not worked since that time. I assume from the facts which you have stated that 
the individual to whom you referred is a war veteran. 

In your letter you quoted a medical report of the present physical condition of 
the applicant. I make no comment with respect to the contents of that report, 
since the question of disability sufficient to permit retirement under c. 32, § 57, is a 
question of fact to be determined by the retiring authority. 

In my opinion, this man is not eligible for retirement under G. L. (Ter. Ed.) 
c. 32, § 57, the pertinent provisions of which are: 

"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; ..." 

At the time this man was injured he had been in the service of the Common- 
wealth for a period of less than nine years. His retirement under the ten-year 



96 P.D. 12. 

statute (§ 57) would now be possible only if it could be said that he remained "in 
the service of the commonwealth" between October 29, 1939, the date of his injury, 
and March 23, 1941, the tenth anniversary of his employment. In my opinion, it 
must be ruled, in accordance with existing law, that he became separated from the 
service at some time prior to the expiration of that seventeen-month period follow- 
ing his injury and that he does not, therefore, have the prerequisite ten years of 
service. 

In the case of Dun7i v. Commissioner of Civil Service, 279 Mass. 504, 509, the 
Supreme Judicial Court said: 

"It has been held that absence from duty due to sickness may constitute the 
separation from the public service of one protected by the civil service law. Fer- 
nandez v. Mayor of New Bedford, 269 Mass. 445. Goldberg v. Comviissioner of Civil 
Service, 274 Mass. 300. Those decisions are authority to the effect that bodily 
disability may constitute separation from the public service. The fact that in 
those cases the absent public servant happened to receive benefits under the work- 
men's compensation act is irrelevant to the question whether the absence due to 
bodily disability constituted separation from the service." 

The court proceeded to hold that a poHce officer who had been on leave of absence 
for three months because of an illness, which made it impossible for him to perform 
his duties, had thereby become separated from the service. 

The effect of the Dunn decision was modified as to leaves of less than six months 
by the enactment of St. 1934, c. 207, which provided for the insertion of the follow- 
ing new section in chapter 31 of the General Laws: 

"Section 46E. A leave of absence for a period of less than six months shall 
not be deemed a separation from the classified civil service, except with the assent 
of the person granted such leave." 

In 1936 the Legislature amended section 46E and further relaxed the rule of the 
Dunn case with respect to employees injured in line of duty. By St. 1936, c. 297, 
the following paragraph was added to said section 46E : 

"If a person in the classified civil service, whether official or labor, who is unable 
to work /or a period not exceeding three years because of injuries received in the per- 
formance of duty and on account of which compensation under chapter one hun- 
dred and fifty-two is paid, not later than six months after the final payment of 
compensation aforesaid gives to the commissioner written notice that he is ready, 
willing and able to do his former work, and presents to him a certificate of a regis- 
tered physician, approved by the board, that he is physically fit to eflficiently per- 
form the duties of his position, he shall not be deemed, by reason of such inability 
to work, to have become separated from such service, and any seniority rights to 
which he was entitled at the time of receiving such injuries shall be preserved." 

By St. 1941, c. 136, the words "for a period not exceeding three years" were 
stricken from section 46E. In other material respects it remains in the form 
quoted above. 

In my opinion, this series of enactments manifests a policy of caution on the 
part of the Legislature in relaxing the rule of separation from service stated and 
applied in the case of Dunn v. Commissioner of Civil Service, supra. Thus the first 
statute, enacted in 1934, was designed merely to preserve the status of employees 
who are on leave for less than six months. That statute was followed by the 1936 
amendment, which extended certain protection to employees injured in the per- 



P.D. 12. 97 

fornmnce of their duties. However, the benefits of the 1936 statute were not 
available to all persons so injured but onlj' to an injured employee who (1) was 
disabled for a period of three years or less, (2) gave written notice, within a speci- 
fied period, of his being ready, willing and able to do his former work, and (3) pre- 
sented a physician's certificate as to his physical fitness to perform the duties of 
his position. The 1941 statute merely eliminated the first of the enumerated quali- 
fications prescribed by the 1930 statute, but the otiier qualifications remain in full 
force and effect. They must be complied with by any employee who seeks to be 
regarded as not having been separated from the service by a long absence caused 
bv^hysical disability. 

The Legislature could, of course, have provided without qualification that the 
absence of an employee by reason of injuries incurred/in the performance of his 
duties shpuld not effect a separation from the service.*' As I have shown, however, 
the L^^lature did not do so and we are obliged to apply the law as it stands and 
na|/as it might have been enacted. ^ 

•^It is obvious that if the man to whom you referred in your letter is, as he claims, 
totally disabled, he cannot now comply with the conditions ])rescribed by G. L. 
(Ter. Ed.) c. 31, § 46E. Unless and until he does comply therewith, his status is 
governed by the rule applied in the Dunn case, as modified by the six-month provi- 
sion enacted by St. 1934, c. 207. Applying that rule to the facts stated, it follows 
that this man was separated from the service of the Commonwealth prior to the 
expiration of seventeen months after he was injured. It is not necessary for pres- 
ent purposes to determine just when the separation occurred durjng the seventeen- 
month period, since credit for service during the entire seventeen-month j^eriod 
would be necessary to qualify this indi\'idual as a person wlio had been "in the 
service of the commonwealth" for a period of ten years. ^/ 

Very truly yours, 

Robert T. Bushxell, Attorneii General. 



Eminent Domain — Taking by M inticipalitij — Appropriation. 

April 9, 1942. 
Metropolitan District Comniin.sion. 

Gentlemen: — You have requested my opinion concerning the validity of a 
certain taking of land by the City of Quincy. You have also inquired whether the 
Commonwealth would be liable for any damages if your Commission, relying on 
the taking as valid, should enter upon the land taken and construct a traffic circle 
thereon, and subsequently the courts should declare the taking invalid. The 
following are the pertinent facts which have been l>rought to my attention: 

The City Council, by vote dated June 16, 1941, adopted an order purporting to 
take certain specifically described lands in Quincy by eminent domain "for street 
]jurposes." The City Council did not, prior to adopting said order of taking, vote 
to appropriate any sum of money for that specific purpose. Early in 1941 the 
Council appropriated from the tax levy the sum of $32,000 for street construction, 
and later made further appropriations by two loan orders for $150,000 each, also 
for street construction. In none of these appropriations was there a specific refer- 
ence to the taking of land. I am informed that the original appropriation and the 
loan orders were passed by votes in excess of two thirds of all the members of the 



98 P.D. 12. 

City Council. It also appears that the City of Quincy operates under a Plan A 
charter (G. L. [Ter. Ed.] c. 43, §§ 1-55, inclusive) adopted in 1916. 

I am further advised that your Commission does not have funds with which to 
pay damages for a taking from the original owners, or with which to pay damages 
to the owners if the Commission should proceed in reliance upon the city's taking 
and the latter should be held invalid. For these reasons you desire positive assur- 
ance that the city's taking is valid before proceeding with the proposed con- 
struction. 

For the reasons discussed below, I am unable to give you the positive assurance 
which you desire that the taking by the City of Quincy is valid. While its 
validity might be sustained if tested in the courts, the question cannot be answered 
with certainty in the absence of a judicial decision. In answer to your second 
question, I am obliged to advise you that if your Commission undertakes the con- 
struction on the land in question, relying upon the city's taking for title, and if 
the taking should subsequently be held invalid by the courts, the Commonwealth 
would be liable for damages to the true owners of the land. 

The validity of the city's taking depends upon whether the procedure prescribed 
for the exercise of the power of eminent domain has been followed, and whether 
all the requirements preliminary to the adoption of an order of taking have been 
met. 

G. L. (Ter. Ed.) c. 79, § 1, which sets forth the manner in which a taking of 
real estate shall be effected, provides that before a board of officers, upon which 
authority is conferred to take land, makes an order of taking, it must first comply 
"with all the preliminary requirements prescribed by law." Such requirements 
are contained in G. L. (Ter. Ed.) c. 40, § 14, which you cited in your letter, and 
in G. L. (Ter. Ed.) c. 43^ § 30. 

G. L. (Ter. Ed.) c. 40, § 14, so far as pertinent, reads as follows: 

"The aldermen of any city, . . . may purchase, or take bj- eminent domain 
under chapter seventy-nine, any land, easement or right therein within the city 
or town not already appropriated to public use, for any municipal purpose /or irhich 
the jnirchase or taking of land, easement or right therein is not otherwise authorized or 
directed by statute: but no land, easement or right therein shall be taken or pur- 
chased under this section unless the taking or purchase thereof has previously been 
authorized by the city council . . ., nor until an appropriation of money, to be 
raised by loan or otherwise, has been made for the purpose by a two thirds Aote 
of the city council. ..." 

The words iu italics were inserted in section 14 by St. 1933, c. 283, § 1. 
G. L. (Ter. Ed.) c. 43, § 30, so far as pertinent, reads as follows: 

"At the request of any department, and with the approval of the mayor and the 
city council under Plan A, . . . the city council may, in the name of the city, pur- 
chase, or take by eminent domain under chapter seventy-nine, any land within its 
limits for any municipal purpose. . . . Xo land shall be taken or purchased until 
an appropriation by loan or otherwise for the general purpose for which land is 
needed has been made by the city council, by a two thirds vote of all its members; 
nor shall a price be paid in excess of the appropriation, unless a larger sum is awarded 
by a court of competent jurisdiction. ..." 

Section 30 authorizes a city subject thereto to take land "for any municipal 
purpose." A taking of land for street purposes by the City of Quincy is such a 
taking, and is "otherwise authorized or directed by statute, ' as that phrase is used 



P.D. 12. 99 

in section 14. It would appear, therefore, that section 14 is not applicable to 
the taking now under consideration. 

It remains to be considered whether the preliminary requirements of section 30 
have been met, in the absence of a prior appropriation for the specific purpose of 
land takings. The pertinent provisions of said section 30 read: 

" Xo land shall be taken or purchased until an appropriation by loan or otherwise 
for the general purpose for which land is needed has been made by the city council, 
by a two thirds vote of all its members; nor shall a price be paid in exxess of the 
appropriation, unless a larger sum is awarded by a court of competent jurisdiction." 

I understand the position of the City of Quincy to be that, as the land taken 
was needed for street construction and as the prior general appropriations were 
made for street construction, they were "for the general purpose for which land 
is needed" and therefore satisfy the appropriation requirements of section 30. 

This position, which finds support in the language used in the first part of the 
sentence quoted above from section 30, may be the correct one. However, I am 
unable to advise you with certainty that the city's interpretation of the statute 
would be adopted by the courts. A litigant might well advance intelligent argu- 
ments in support of a contrary interpretation. 

Thus, the remainder of the quoted sentence reads: 

"... nor shall a price be paid in excess of the appropriation, unless a larger sum is 
awarded by a court of competent jurisdiction." 

This provision is obviously intended to be a limitation upon the acquisition of 
lands by cities subject thereto. The statute must be so construed as to give effect 
to all of its provisions. See Commissioners of Public Works v. Cities Service Oil Co., 
308 Mass. 349, 360; Paquette v. Fall River, 278 Mass. 172, 176. If the appropria- 
tion required by section 30 means a general appropriation covering the entire ex- 
pense of street construction for the year, the clause just quoted with respect to 
the price to be paid would be a rather meaningless limitation. This proposition 
is demonstrated by the facts now under consideration. The land which was taken 
is assessed for less than ten thousand dollars. The appropriations relied upon ex- 
ceed three hundred thousand dollais. Obviously, a limitation forbidding payment 
of over three hundred thousand dollars, without a court order, for land assessed 
at less than ten thousand doUais, is no limitation at all. 

This aspect of section 30 tends to indicate that the Legislature intended to re- 
quire an appropriation specifically directed to the matter of land taking, which 
appropriation could be expected to provide a reasonable limitation upon the 
amounts to be paid without a court award. If this view is correct, the taking to 
which you referred would be held in\-alid, since there was no appropriation for 
the specific purpose of land taking. 

Another factor which may be considered in construing section 30 is the general 
policy of the law with respect to the ac(}uisition of land by municipalities, as showii 
by other statutes and judicial decisions. The closest analogy to section 30 is 
found in G. L. (Ter. Ed.) c. 40, § 14, which is quoted above. Both statutes deal 
with the same subject, namely, the preliminary requirement of appropriations in 
connection with the purchase or taking of lands by municipalities. Both statutes 
are contained in chapters of the General Laws dealing with municipal govern- 
ment. The following language from the case of Sheldon v. Boston d' Albany R.R., 
172 Mass. 180, 182, would appear to be pertinent: 



100 P.D. 12. 

"Where statutes are parts of a general system relating to the same class of sub- 
jects, and rest upon the same reasons, they should be so construed, if possible, as 
to ])e uniform in their application and in the results which they accomplish." 

Section 14 has been construed as requiring that a purchase or taking of land 
pursuant to that section must be preceded by an appropriation specifically directed 
towards such purchase or taking. See Breckwood Real Estate Co. v. Springfield, 
258 Mass. Ill, 113; Reed v. Springfield, 258 Mass. 115; Walker v. Medford, 272 
Mass. 161. In the Breckwood case the Supreme Judicial Court said: 

"The dominant purpose and intention of the Legislature in the enactment of 
this statute [c. 40, § 14] was to protect the people of municipalities from the appropria- 
tion and expenditnre of the public funds unless and until such appropriation had been 
previously authorized by the safeguard of a two-thirds vote of the city council or 
a two-thirds vote of the town at a regular meeting. ... If, as in the case at bar, 
an appropriation has not been previously made by a two-thirds vote of the city 
council, the city obtains no title to the land and none can be deemed to be ^'ested 
in the city by estoppel or otherwise. To reach a different result would in effect 
nullify the express requirements of the statute." (258 Mass. Ill, 114.) 

It may be strongly urged that "the people of municipalities" operating under 
a Plan A charter and subject to section 30 of chapter 43 need such protection just 
as much as do "the people of municipalities" operating under special charters and 
subject to section 14 of chapter 40. 

I am aware of no case in which this specific question as to the proper interpreta- 
tion of section 30 has been decided by the courts of Massachusetts. In view of 
the considerations discussed above, it would appear that the courts may hold that 
section 30 requires a prior appropriation dealing specifically with the purchase or 
taking of land as a prerequisite to the validity of such a taking or purchase under 
that section. Upon such an interpretation, the taking here in question would be 
held invalid. On the other hand, the courts may adopt the view contended for 
by the city, in which case the validity of the taking would be sustained. 

For these reasons, and in the absence of a court decision, I am unable to give 
you any positive assurance that the City of Quincy now has a clear title to the 
land to which you refer. It is, of course, within the power of the city to proceed 
anew with the taking and to comply with the strictest possible interpretation of 
section 30. Thus, the city can make a new taking, preceded by an appropriation 
by loan or otherwise, referring specifically to such taking. If that were done, 
your Commission could proceed with its construction work without incurring the 
risk of liability to the original owners of the land. 

Veiy truly yours, 

Robert T. Bushnell, Attorney General. 

State Employees — Military Substitute — Vacancies. 

April 16, 1942. 

His Excellency Leverett Saltonstall, Governor of the Covimomvealth. 

Sir: — You have recently requested my opinion on three questions which con- 
cern the interpretation of St. 1941, c. 708, § 7. That section provides, in sub- 
stance, that when an officer holding a position of the type described therein is 
unable to perform the duties of his office by reason of his serving in the military 



P.D. 1-2. 101 

or naval forces of the rnited States, the head of the department, division, board 
or commission may, with the approval of the Governor, designate another person 
to perform the duties of such officer during the latter "s military or naval sei-vice. 
Your specific questions and my answers thereto are as follows: 

'M. Must the person appointed under section 7 necessarily lie in the employ 
of the Department?" 

In my opinion, the specific language of section 7 requires an affirmative answer 
to this question. 

"2. Does such appointee receive the pay of the position to which he is appointed 
or does he continue at the rate of pay he receives as such 'employee'?" 

In my opinion, the designee or appointee is entitled to receive the compensation 
which attaches to the office the duties of which he is to perform during the mili- 
tary or naval service of the regular incumbent. While receiving this salary the 
designee does not, of course, continue to receive the salary to which he was en- 
titled while holding his original position. See G. L. (Ter. Ed.) c. 30, § 21. 

" 3. Does such employee upon taking over and performing the duties of an officer 
create a vacancy in the position he held as an 'employee'?" 

In my opinion, the answer to this question will depend on the circumstances 
existing with respect to each particular case. It may w^ell be possible and prac- 
ticable for a person in the employ of a particular department to continue to per- 
form his normal duties while at the same time performing the duties of some other 
officer pursuant to a designation under St. 1941, c. 708, § 7. In such a case, no 
vacancy would be created in the position of the person so designated. On the 
other hand, cases may arise in which the normal duties of the designee are so 
onerous or so incompatible with the duties which he will be required to perform 
under the designation that a sound policy of administration would require that 
he relinquish his normal duties. In that event it could properly be held that a 
vacancy was thereby created. 

The following sentence, which appears in section 7, manifests a legislative recog- 
nition of the fact that such vacancies may arise: 

"... Any appointment, promotion or transfer of any person to perform the duties 
of a person so designated shall be temporary and shall not extend beyond the date 
when such designation ceases to he in force and effect." 

Very truly j^ours, 

Robert T. Bushnell, Attorney General. 

Reformatorii for Women — Escape — Prosecution. 

April 17, 1942. 
Hon. Arthur T. LyMA's, Commissioner of Correction. 

De.\r Sir: — You have asked my opinion as to whether prosecution for escape 
of a female prisoner, who has been sentenced to the Reformatory for Women, and 
indentured under G. L. (Ter. Ed.) c. 127, § 85, and who leaves her place of service, 
should be instituted under the provisions of G. L. (Ter. Ed.) c. 127, § 86, or of 
G. L. (Ter. Ed.) c. 268, § 16, as amended. 



102 P.D. 12. 

I advise you that prosecution for such an escape should be had under said chapter 
127, section 86. 

Said section 86 provides that if a woman serving a sentence in the Reformatory 
for Women, who has been indentured, 

"leaves her place of ser\'ice, . . . she shall be held to have escaped from prison, and 
may be arrested and returned to the prison from which she was taken as if she had 
escaped therefrom, and shall, upon conviction of such escape, be punished by imprison- 
ment in jail or in a house of correction for not less than three months nor more than one 
year or in the reformatory for women. ..." 

G. L. (Ter. Ed.) c. 268, § 16, as amended, provides that 

"a prisoner who escapes or attempts to escape from any penal institution, or from 
land appurtenant thereto, or from the custody of any officer thereof or while being 
conveyed to or from any such institution, may be pursued and recaptured and shall 
be punished by imprisonment in the state prison for not more than ten years or by 
imprisonment in a jail or house of correction for not more than two and one half 
years." 

Said chapter 268, section 16, as amended, is the final form of enactment of a long 
line of statutes relative to escapes from penal institutions, the original version 
having been enacted much earlier than the original statute embodying the provi- 
sions of said sections 85 and 86 of chapter 127. 

It appears that in enacting said section 86 the Legislature intended to deal with 
a different offense from that described in said section 16. This is manifested by the 
fact that the Legislature specifically provided a milder penalty to be applied upon 
conviction of the form of escape dealt with in section 86 than that applicable to 
one convicted under section 16 of an escape from a penal institution. 

In my opinion, a woman who is released from the Reformatory for Women and 
indentured to service elsewhere does not, upon leaving her place of service, come 
within the terms of said section 16 of chapter 268, although such act constitutes 
"an escape." 

You have also asked my opinion as to the length of time which may be required 
to be served by a woman (1) sentenced to the Reformatory for Women under G. L. 
(Ter. Ed.) c. 268, § 16, as amended, for an escape from a penal institution, and (2) 
sentenced to the Reformatory for Women under G. L. (Ter. Ed.) c. 127, § 86, for 
leaving her place of service. 

1. Said section 16 provides that a person who escapes from a penal institution 
shall be punished by not more than ten years' imprisonment in State Prison or not 
more than two and one-half years in a jail or house of correction. If a woman is 
convicted of that offense and is sentenced under section 16 to an indefinite term in 
the Reformatory for Women, she may be held at the Reformatory for not more 
than five years (G. L. (Ter. Ed.) c. 279, § 18). 

2. If a woman is convicted of leaving the service to which she has been inden- 
tured, which is a misdemeanor, she may be sentenced under G. L. (Ter. Ed.) c. 127, 
§ 86, to an indefinite term in the Reformatory for Women, where she may be held 
for not more than two years (G. L. (Ter. Ed.) c. 279, §,18). See Piatt v. Common- 
wealth, 256 Mass. 539. 

Very truly yours, 

Robert T. Bishnell, Attorney General. 



P.D. 12. 103 

Board of Registration in Medicine — Alien Application for Registration — Citizen' 

ship Requirements. 

April 28, 1942. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — On behalf of the Board of Registration in Medicine you have 
inquired whether that Board has the right to grant registration as a physician to an 
alien applicant who, under federal law, is not eligible to l-nited States citizenship. 

In my opinion, your question must be answered in the negative. 

G. L. (Ter. Ed.) c. 112, § 2, sets forth at some length the prerequisites to the 
issuance of certificates of registration to physicians. The following language, which 
appears in the last paragraph of said section 2, deals specifically with the matter 
of citizenship: 

"The board shall examine an applicant who is an alien only if he presents to it a 
certificate from the court in which he shall have filed his declaration of intention to 
become a citizen of the United States, or from the Immigration and Naturalization 
Service of the United States, showing that he has declared his intention to become 
such a citizen, or a copy of such declaration of intention, certified by the clerk of 
such court. . . . The foregoing provisions of this paragraph shall not apply to 
limited registration under section nine or section nine A or to any alien physician 
of distinguished merit and ability, duly licensed to practice his profession in any 
foreign country wherein the requirements for the issuance of such a license are not 
substantially lower than those of this commonwealth, while he is temporarily teach- 
ing in this commonwealth in a medical school approved by the approving author- 
ity." 

Thus it appears that, in general, an alien may not be given the preregistration 
examination unless he complies with specific requirements indicating that he has 
undertaken to acquire United States citizenship. It is obviously impossible for the 
person to whom you refer to comply with these requirements, since he is ineligible 
for citizenship. I have been advised of no facts upon which it could be ruled that 
he comes within the excepted classes referred to in the last sentence of the above- 
quoted paragraph, as an intern (§ 9), a student (§ 9A), or an alien physician of dis- 
tinguished merit and ability temporarily teaching in an approved medical school 
in this Commonwealth. 

My opinion as to the Board's lack of authority to issue a certificate of registra- 
tion to the said alien applicant is not affected by the fact that the Board proposed 
to grant registration to him without examination, but on the basis of his having a 
certificate of qualification from the National Board of Medical Examiners of the 
United States under G. L. (Ter. Ed.) c. 112, § 2A. That section reads as follows: 

"In determining the ([ualifications necessary for registration as a qualified physi- 
cian, the board may at its discretion accept the certificate of the National Board 
of ^ledical Examiners of the United States, chartered under the laws of the District 
of Columbia, in place of and as equivalent to its own professional examination; 
but before registration in pursuance of this section the applicant therefor shall 
pay a fee of twenty-fiAC dollars." 

Thus, section 2A authorizes acceptance of National Board certificates by the 
Massachusetts Board "in place of and as equivalent to its own professional exami- 
nation ..." The Massachusetts Board is not authorized, however, to accept 
such a certificate in place of compliance with the other ciualifi cations prescribed 



104 P.D. 12. 

by section 2, or to waive those other requirements, including those relating to 
citizenship. 

In my opinion, the citizenship requirements imposed by the quoted portion of 
G. L. (Ter. Ed.) c. 112, § 2, are valid. See Clarke v. Deckebach, 274 U. S. 392; 
Attorney General's Report, 1939, p. 76. 

Very truly yours, 

Robert T. Bushnell, Attorney Get^eral. 

State Employee — Temporary Increase in Salary — Step Rate Increase. 

April 28, 1942. 

Commission on Administration and Finance. 

Gentlemen : — You have requested my opinion as to whether a temporary 
increase in salary granted to a State employee as of February 1, 1942, pursuant to 
St. 1942, c. 12, should be diminished if, at a later date, the employee receives a step 
rate increase under G. L. (Ter. Ed.) c. 30, §§ 45-50, which brings his permanent 
salary to a figure which would have excluded him from the benefits of St. 1942, 
c. 12, had he been compensated at the new permanent rate on February 1, 1942. 

In my opinion, an employee's receipt of a step rate increase in his permanent 
salary does not warrant a reduction in, or any other adjustment of, the temporary 
increase to which he became entitled on February 1, 1942, by operation of St. 1942, 
c. 12. 

Section 1 of said chapter 12 reads as follows: 

"The salary of each officer and employee in the serAdce of the commonwealth 
receiving a salary at the rate of less than fifteen hundred dollars per annum for full 
time service is hereby increased by an amount of one hundred and fifty dollars per 
annum; provided, that no increase shall be made herexmder which will increase the 
total salary of any such officer or employee to an amount in excess of fifteen hundred 
and eighty dollars per annum. The salary of each officer and employee in said serv- 
ice recei\dng a salary at the rate of fifteen hundred dollars, but less than twenty-four 
hundred and eighty dollars, per annum for full time service is hereby increased by 
an amount of one hundred dollars per annum; provided that no increase shall be 
made hereunder which will increase the total salary of any such officer or employee to 
an amount in excess of twenty-four hundred and eighty dollars." (Italics mine.) 

The provisos which are italicized in the foregoing quotation manifest a legis- 
lative intent that they shall operate as limitations only with respect to total 
salaries as augmented by temporary increases granted pursuant to section 1 , and not 
with respect to aggregate salaries resulting from subsequent step rate increases. 
This interpretation is supported by the provisions of St. 1942, c. 12, § 5, which 
read: 

"The increase in salaries provided for by this act shall he effective only for the 
period beginning February first in the current year and ending June thirtieth, nine- 
teen hundred and fortj'-three, and such increase shall 7iot prevent an officer or em- 
ployee from receiving during said period step rate increases to ichich he may be en- 
titled." (Italics mine.) 

The foregoing provision protecting the rights of employees with respect to step 
rate increases would be deprived of its vitality and substance if it were held that 
an employee by receiving a step rate increase was thereby rendered ineligible there- 
after to receive the benefits of the temporary increase granted under section 1. 
Had the Legislature intended to produce such a result, it could easily have made 



P.D. 12. 105 

provision therefor in chapter 12. Such a provision was specifically included in an 
earlier statute (Gen. St. 1917, c. 323), which provided for the granting of temporary 
increases to State employees whose salary rates were below a specified figure. That 
statute provided, in section 4: 

"This act shall not be construed as in any way repealing or abridging any act 
providing for the increase of comjjensation of any employees of the commonwealth, 
including employees whose salaries, under existing provisions of law, are made to 
increase automatically, l)y graduated instalments, from year to year, until the 
maxinumi therein pro\'ided has been reached, but employees who accept additional 
compensation under the provisions of this act shall not, during such time as they 
shall continue to receive the additional compensation herein provided for, be en- 
titled to the benefit of any increase in compensation which they may have received 
since the first day of July in the year nineteen hundred and sixteen, or to which 
they may hereafter become entitled. But any such employee may at any time elect 
to receive any increase in compensation to which he might otherwise be entitled 
in lieu of the additional compensation hereby provided for." 

The omission of any such provision from St. 1942, c. 12, is indicative of a legisla- 
tive intent to permit State employees to receive the benefits of the temporary in- 
creases granted pursuant to said chapter 12 and also the benefits of step rate in- 
creases which they may receive after February 1, 1942, pursuant to other provisions 
of law. 

Very truly yours, 

Robert T. Blshnell, Attorney General. 

Department of Public Works — Commissioner — Laborers — Establishment of Hours 

of a " Work Week." 

April 30, 1942. 
Hon. Herman A. MacDonald, Commissioner of Public Works. 

Dear Sir: — You have recently asked my opinion as to whether you have "the 
legal authority to establish a 40-hour week" for "maintenance men" employed by 
the Department of Public Works. In a subsequent letter you described "mainte- 
nance men" as "men on the labor pay roll who are laborers, workmen and me- 
chanics." I am informed that no rules or regulations have been promulgated by 
the Division of Personnel and Standardization under G. L. (Ter. Ed.) c. 30, §§ 45- 
50, prescribing the hours of labor of a "work week" of State employees. 

I am of the opinion that, in the absence of such regulations by the Division of 
Personnel and Standardization, you have authority to make reasonable, non-dis- 
criminatory determinations as to the number of hours of labor not exceeding forty- 
eight hours, which will constitute a "work week" with respect to laborers or other 
classes of employees of the Department of Public Works. There is no occasion at 
this time to consider whether your determinations with respect to "maintenance 
men " would be superseded if the said Division were later to prescribe hours of labor 
for that class of employees. 

The Legislature has not provided specifically the number of hours of work per 
week required to be performed by laborers or other employees of the Common- 
wealth. The Legislature has provided that certain classes of laborers and other 
employees shall not be required to work more than forty-eight hours in any week 
(G. L. (Ter. Ed.) c. 149, §§ 30, 39). These sections do not specifically define nor 
establish what number of hours shall comprise a work week for laborers and other 
employees referred to therein. They do not do so by implication. (See Weerdt v. 



106 P.D. 12. 

Springfield, 295 Mass. 523). They only set up a maximum of hours beyond which 
work may not be required during a week. 

No impUcation as to the number of hours in a work week for laborers arises from 
G. L. (Ter. Ed.) c. 30, § 24, which provides that the offices of all State departments 
shall be open to the public for the transaction of business during certain designated 
hours. II Op. Atty. Gen. 475. 

The Legislature has not in express terms vested any particular officer or officers 
with authority to establish the number of hours which shall constitute a week's 
work for laborers or other employees of the Commonwealth. 

The Commissioner of Public Works is the executive and administrative head of 
the Department of Public Works. G. L. (Ter. Ed.) c. 16, §§ 2, 4. As such head 
he is given broad authority with respect to the appointment of employees, the as- 
signment of their duties, and their removal (§4). Included among his powers is 
that of determining the hours of labor of employees of the Department, subject to 
such superior authority as may be vested iu the Division of Personnel and Stand- 
ardization by G. L. (Ter. Ed.) c. 30, §§ 45-50. Ill Op. Atty. Gen. 413. The Com- 
missioner must, of course, act reasonably in making such determinations with 
respect to hours of labor, and he may not for such purpose fix any number of hours 
in excess of the maximum number permitted by G. L. (Ter. Ed.) c. 149, §§ 30, 39, 
or such other limitations as may be imposed by law. 

Very truly yours, 

RoBEET T. BusHNELL, Attorney General. 

State Employee — Re-employment — Salary. 

May 4, 1942. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir: — You have inquired whether a certain employee of the Depart- 
ment of Public Welfare is entitled to a temporary increase in salary under St. 1942, 
c. 12, in the light of the following facts: 

The employee in question had been employed in your department for many 
years until her retirement on February 24, 1942. Her salary rate was then $2,640 
per year and upon retirement she became entitled to payments of $1,420.56 per 
year from the State Retirement Fund. On February 26, 1942, pursuant to St. 
1942, c. 16, she was re-employed in her former position. Since her reinstatement 
she has been paid at the rate of $2,640 per year, $1,219.44 from funds of the Wel- 
fare Department and $1,420.56 from the Retirement Fund. 

In my opinion, the employee to whom you refer in your letter is not entitled to 
a temporary increase under St. 1942, c. 12. 

Temporary increases were granted by said chapter 12 to officers or employees 
whose annual salary rates were less than $2,480. The word "salaiy" as used in 
chapter 12 is defined therein as including "all compensation from the common- 
wealth, however payable, ..." Hence, it follows that, if the State employee is 
receiving compensation from the Commonwealth at the rate of $2,640 per year, 
she is beyond the purview of chapter 12. In my opinion, she must be so regarded. 

St. 1942, c. 16, which authorizes the re-employment of retired officers or em- 
ployees, provides in section 1 that; 

"... Any person so employed shall receive full compensation for such ser^^ces, 
less any retirement allowance or pension received by him ..." 



P.D. 12. 107 

It is apparent from this provision, as well as from the tenor of chapter 16 as a whole, 
that a retired employee who is re-employed pursuant thereto is not to receive a 
diminished compensation for her services, but is to receive the full rate which 
attaches to her position. In this case the pertinent salary rate is S2,640 per year 
and the employee in question is receiving compensation at that rate. To hold 
that while she is thus receiving $2,640 per year she is entitled to a temporary 
increase under St. 1942, c. 12, would, in my opinion, do violence to the clearly 
expressed legislative intent that such increases should be available only to officers 
or employees compensated at an annual rate of less than $2,480. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Civil Service — Labor Service of Department oj Public Works — Temporary 

Positions. 

May 7, 1942. 

Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether "a group of female 
cleaners who were employed on July 1, 1941, at Commonwealth Pier 5 by the 
Department of Public Works are entitled to be recorded as permanent cleaners 
classified under Civil Service under the provisions of chapter 627 of 1941." 

The members of the group to which you refer were in the labor service of the 
Department of Public Works on July 1, 1941. It appears, however, that each of 
the members of this group was occupying a temporary and not a permanent posi- 
tion in such service. The records of the Division of Personnel and Standardization 
show that each of the members of this group had originally received a temporary 
appointment for the three months' period only, that these temporary appoint- 
ments had each been renewed for further periods of three months at a time, and 
that on July 1, 1941, each member of this group held her position upon such a 
temporary appointment. 

I am of opinion that the members of the group of female cleaners to whom you 
refer are not entitled to be recorded as permanent cleaners classified under Civil 
Service. 

St. 1941, c. 627, was entitled "An Act placing certain positions in the Depart- 
ment of Public Works under the Civil Service Laws." Its applicable parts read; 

"Section 1. Section four of chapter thirty-one of the General Laws, as 
amended, is hereby further amended by adding at the end the follo\ving new para- 
graph : — 

The labor service of the state department of public works. 

Section' 6. The persons holding, on July first of the current 3^ear, positions 
in the department of public works referred to in section one of this act may con- 
tinue to serve in such positions without examination or re-appointment." 

The effect of this statute, which was approved August 4, 1941, was, as its title 
indicates, to bring the labor service of the State Department of Public Works 
within the sweep of the Civil Service Law and Rules. Prior to the enactment 
of this statute the labor service was not within the classified Civil Service. 



108 P.D. 12. 

In my opinion, the intent of the Legislature in enacting St. 1941, c. 627, § 6, 
was to give Civil Service status, with its unlimited tenure, to persons holding labor 
service positions under permanent appointments or appointments of indefinite 
duration. There is nothing in the statute to indicate that the Legislature intended 
thereby to transform an expressly limited temporary employment into one of 
unhmited tenure under the Civil Service Law and Rules. An examination of the 
General Appropriation Act of 1941, together with the departmental budget estimates 
and the report of the Budget Commissioner to the Committee on Ways and Means, 
shows a legislative awareness of the fact that certain of the employees at Common- 
wealth Pier 5 hold temporary employments. (See St. 1941, c. 419, item 3132-02; 
also report of Budget Commissioner.) This fact lends support to my opinion that 
the persons to whom you refer, who were holding temporary positions, were not 
intended by the 1941 amendment to acquire the status of permanent cleaners 
classified under Civil Service. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Soldiers' Relief Agent — Northampton — Classification. 

May 8, 1942. 
Hon. LTlysses J. Lupien, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether the incumbent of the 
position of Soldiers' Relief Agent in the City of Northampton is an "ojjicei within 
the meaning of G. L. c. 31, § 5, and, therefore, exempt from Civil Service Law 
and Rules." 

Irrespective of whether the incumbent of the said position is an officer or an 
employee of the City of Northampton, he is not exempt from the provisions of the 
Civil Service Law and Rules under G. L. (Ter. Ed.) c. 31, § 5, because his appoint- 
ment is not, by the terms of the city ordinance creating the position, one which 
is subject to confirmation by the City Council. 

G. L. (Ter. Ed.) c. 31, § 5, in its applicable parts, reads: 

" No rule made by the commission shall apply to the selection or appointment of 
any of the following: 

Judicial officers; . . . officers whose appointment is subject to confirmation by 
the executive council, or 6y ^/te c% coMna7 of any city. ..." 

The City of Northampton has a city council consisting of a board of aldermen 
and a common council. 

By chapter 48 of the city ordinances of the current year, adopted by both branches 
of the Council on April 2, 1942, it is provided: 

"Section 1. The Mayor shall appoint upon the passage of this ordinance, 
subject to confirmation bi/ the Board of Aldermen, a person ... to be laiowTi as the 
Soldiers' Relief Agent."' 

Confirmation by a board of aldermen is not equivalent to confirmation by a city 
council so as to exclude the holder of a municipal office from the classified Civil 
Service. Attorney General v. Douglass, 195 Mass. 35, 38. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



r.D. 12. 109 

Civil Service — Qualifying Examinationi< vtirler St. Ifl'/I, r. 70.0 — Separation from 

Service. 

May 13, 1942. 
Hon. Ulysses J. Lupiex, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether you should give quali- 
fying examinations pursuant to St. 1941, c. 709, for the position of Assistant Di- 
rector in the Division of Employment Security to three persons, each of whom held 
such a position on October 29, 1941, but none of whom holds it now. The perti- 
nent provisions of said chapter 709, which took effect on October 29, 1941, are: 

"Section' 1. The director of the division of employment security in the depart- 
ment of labor and industries shall transmit to the director of civil service a list of 
the deputies or assistants who were appointed under section nine I of chapter 
twenty-three of the General Laws and who upon the effective date of this act are 
incumbents of said offices. 

Section' 2. The director of civil service on receipt of said list shall forthwith 
proceed to give a qualifying examination to each deputj' or assistant on said list 
to determine his qualifications to perform the duties of said position of deputy or 
assistant, as the case may be. 

Section 3. . . . The director of ci^-iI service shall certify to the position of 
assistant directors such deputies and assistants as pass such qualifying examination, 
and they shall be deemed to be permanently appointed thereto without serving any 
probationar\' period, and their tenure of office or employment shall be unlimited, 
subject, however, to the civil service laws." 

The factual situation out of which your question arises may be summarized as 
follows : 

On October 29, 1941, each of said persons held the position of Assistant Director 
of the Division of Emplojmient Security, by appointment under G. L. (Ter. Ed.) 
c. 23, § 91. No qualifying examination pursuant to section 2 of chapter 709 above 
has ever been given to them. The reason for this omission is not stated by you, 
but there is no evidence or intimation of which I am aware that the omission was 
due to any fault or inaction on the part of the Assistant Directors. One of them 
continued to serv^e in that capacity until November 30, 1941, when he resigned to 
accept an appointment Ijy the Governor to another State office. The other two 
Assistant Directors referred to in your letter continued to hold their positions until 
December 31, 1941, when they were separated from the service of the Division of 
Employment Security b}^ order of the Director of that Division. 

Their separations from the service involved no fault on their part but were based 
entirely upon the fact that there were no funds available from which to paj^ them. 
Such funds had formerly been furnished by the Federal Government, but federal 
grants were discontinued as of Januar\' 1, 1942, when, pursuant to a request by 
President Roosevelt, the employment service functions of the Division of Employ- 
ment Security were temporarily transferred to the United States Emplo>mient 
Service (see Governor's Executive Order No. 2. issued December 31, 1941). Since 
January 1, 1942, said Assistant Directors have been employed in the Boston office 
of the United States Employment Service. Other employees of the Employment 
Security Division ^\'ith Civil Service status, who were sunilarly separated from the 
service on December 31, 1941, have been placed upon a "Special List," so called, 
gi-\dng them a preferred status with respect to possible future vacancies in the State 
service (G. L. (Ter. Ed.) c. 31, § 46G; Ci^'il Ser\'ice Rule 23 (2) ). 

In view of the unusual factual situation set forth above, I am of the opinion 
that you may now give a qualifying examination pursuant to St. 1941, c. 709, to 
each of the two Assistant Directors who were separated from the service of the 



110 P.D. 12. 

Employment Security Division because of lack of funds, but that you may not 
give such an examination to the Assistant Director who resigned on November 
30, 1941. 

It is clear from the provisions of St. 1941, c. 709, that the Legislature intended 
to confer all of the benefits of the Civil Service Law and Rules upon the persons 
described in chapter 709, provided such persons passed a qualifying examination. 
These benefits included not only protection against removal without proper 
cause, but also the right, in the event of removal for cause but without fault, to 
be placed upon a Special List (Civil Service Rule 23 (2) ) and the right to prefer- 
ence in the event of reinstatement (G. L. (Ter. Ed.) c. 31, § 46G). The latter privi- 
leges are particularly important in this instance in view of the temporary nature 
of the transfer of the employment service functions from the State to the federal 
agency (see Governor's Executive Order No. 2, December 31, 1941). 

However, despite a clear legislative intent that the persons holding office as 
Assistant Directors on October 29, 1941, should be permitted to acquire Civil 
Service status and rights, they cannot acquire such status or rights unless they are 
permitted to take a qualifying examination as required by St. 1941, c. 709, § 2. 
It is doubtless true that in the ordinary situation a qualifying Civil Service exam- 
ination may be given only to a person then holding the position for which he is 
to be examined. However, because of the unusual circumstances involved in this 
situation, I am of the opinion that the legislative purpose would be frustrated if 
it were ruled that these men should be denied the benefits of chapter 709 simply 
because they were separated from the State service unexpectedly and without 
fault on their part before they had been given qualifying examinations. I am of 
the opinion that if these persons are permitted to take such an examination now 
and thereby secure the benefits of positions on a Special List, which would other- 
wise be lost to them through no fault of theirs, the legislative intent would be 
fulfilled as far as possible at this time. 

The foregoing considerations do not apply to the Assistant Director who re- 
signed on November 30, 1941, in order to accept another appointment in the 
State service. He made his choice and his resignation carried with it a surrender 
of all rights and privileges which he may have had with respect to the position of 
Assistant Director of the Division of Employment Security. Among the rights 
so waived by him was the right to a qualifying examination under St. 1941, c. 
709, § 2. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Department of Public Health — Authority of Employees to Enter Private Premises — 
Compensation for Injuries Sustained on Private Premises. 

May 14, 1942. 
Dr. Paul J. Jakmauh, Commissioner of Public Health. 

Dear Sir: : — In your letter of May 5th you ask to be advised as to the follow- 
ing: 

1. Have employees of this Department authority, under sections 9 and 165 of 
chapter 111 of the General Laws, to enter private premises in the performance of 
their official duties without signing waivers saving the owner of the premises harm- 
less in case of injury? 



P.D. 12. Ill 

2. Are representati\es of this Department entitled to compensation as State 
employees under any statute of this State for injuries resulting from the perform- 
ance of their official duties if such injuries take place on private premises? 

In answer to your first inc^uiry, it is my opinion that employees of the Depart- 
ment of Public Health under sections 9 and 165 of chapter 111 of the General 
Laws, as amended, have authority to enter private premises in the performance 
of their official duties without signing any waivers for the benefit of the owners of 
the premises. In fgct, those statutes specifically provide for free access to any place 
within the scope of authority of such employee, with penalties for anyone who 
"hinders, obstructs or in any way interferes with any such inspector." 

In answer to your second inquiry, it is my opinion that employees of your Depart- 
ment, acting within the scope of their authority under the law, are protected in 
accordance wdth G. L. c. 152, as amended, if they sustain injuries arising out of and 
in the course of their employment, even when such injuries are sustained on private 
premises. 

\^ery truly yours, 

Robert T. Bushnell, Attorney General. 

Insurance — Renewal Certificates — Extension of Policy. 

May 20, 1942. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — You have advised me that groups of insurance companies \vhich 
issue fire and automobile liability policies in Massachusetts have suggested that 
the national defense would be assisted "if such policies as are now outstanding in 
this Commonwealth could be continued in force upon their expiration dates by the 
use of properly executed Renewal Certificates." With respect to this situation you 
have requested my opinion on the following questions of law. 

"1. May a Standard Fire Policy issued under the authority of section 99 be 
continued after its expiration date by the issuance to the assured of a properly 
executed Renewal Certificate. 

2. Is the Commissioner of Insurance authorized by existing law to approve a 
Renewal Certificate Form to be used for the continuance of a Compulsory Motor 
Vehicle Liability Policy beyond its termination date if such form does not contain 
the minimum requirements of chapter 175, section 113A?" 

In considering your questions I assume that the outstanding policies which it is 
suggested might be continued in force are in such form that if they were originally 
issued at this time they would comply with all of the present legal requirements. 
Upon that assumption it is my opinion that these policies can be continued in force 
beyond their expiration dates, although there may be some question as to whether 
that can be done through the use of "Renewal Certificates." 

G. L. (Ter. Ed.) c. 175, § 99, which is referred to in your first question, prescribes ■ 
the standard form of fire insurance policy. Clause ninth of said section provides 
that modifications of, or additions to, the provisions of standard form policies shall 
be written on the policies, or on written or printed riders to be attached to the 
policies, in either event signed by officers or agents of the company using them. 
The statute does not require that the form of standard fire insurance policies, or 
modifications thereof, shall be approved by the Conunissioner of Insurance. 



112 P.D. 12. 

G. L. (Ter. Ed.) c. 175, § 113A, referred to in your second question, sets forth 
certain provisions which are required to be contained in motor vehicle liability 
policies, and further provides that no such policy shall be issued until the form 
thereof has been approved by the Commissioner of Insurance. The requirement of 
approval by the Commissioner as to form is extended by force of G. L. (Ter. Ed.) 
c. 175, § 192, to riders, endorsements and applications designed to be attached to 
motor vehicle liability policies. 

In my opinion, there is nothing in the aforementioned statutes which would forbid 
an insurance company from continuing in force beyond the original expiration date 
a contract of fire insurance or automobile liability insurance which is now contained 
in a formal policy complying fully with all the requirements of the law. Such a 
continuance in effect of an existing insurance policy may be provided for by a con- 
tinuation or extension agreement properly endorsed upon the policy or upon an 
appropriate rider attached to the policy. It would be necessary that such an 
endorsement or rider on a fire insurance or automobile liability policy comply 
with the requirements concerning riders or modifications set forth in G. L. (Ter. 
Ed.) c. 175, §§ 99, 113A and 192, but it would not be necessary that the endorse- 
ment or rider set forth all of the data prescribed for insurance policies. 

The foregoing comments with respect to continuing in force an existing policy 
may not be applicable to a "renewal" of such a policy. In other connections the 
word "renewal" has been held to imply the creation of a new contract and not 
merely the continuing in force or extending of an existing contract. Cf. Muhml 
Paper Co. v. Hoague-Spragtie Corporation, 297 Mass. 294, 299; Leavitt v. Maykel, 
203 Mass. 506, 509. If the word "renew" as used in connection with an insurance 
policy were similarly interpreted, the renewal in legal effect would be the substitu- 
tion of a new insurance policy, in which event the statutoiy requirements with 
respect to the contents of insurance policies would apply to the renewal documents. 
In order to avoid this result, while at the same time preserving those features 
designed for the protection of Massachusetts policyholders, it would seem desirable 
to avoid the use of the word "renew" on endorsements or riders continuing existing 
policies in force for additional periods. 

Veiy truly yours, 

Robert T. Bushnell, Attorney General. 

Statute — Effective Date — Subjects of Referendum Petition. 

May 21, 1942. 
Hon. Ulysses J. Lueien, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to the effective date of chapter 
625 of the Acts of 1941 which reads: 

"An Act placing under Civil Service Certain Employees of the State Farm. 

Section 1. Section four of chapter thirty-one of the General Laws, as amended, 
is hereby further amended bj^ adding at the end the following new paragraph : 

All permanent employees of the state farm, except those specifically exempted 
by law and qualified physicians and registered nurses. 

Section 2. The incumbents, on the effective date of this act, of the positions 
at the state farm placed under civil service by section one of this act may continue 
to serve in such positions without taking a civil service examination, and their 
tenure of office shall be unlimited, subject, however, to the civil service laws." 



P.D. 12. 113 

This chapter became effective on September 4, 1941, the thirtieth day after 
the date of its enactment. 

The State Farm is situated at Bridgewater in the County of Plymouth. 

The operation of chapter 625 by its terms is limited to that part of the territory 
of the Commonwealth in which the State Farm is located. Since the operation 
of this chapter is thus restricted, it falls within that class of measures which is 
excluded from the scope of referendum petitions by the provisions of Mass. Const. 
Amend. XLVHI, The Referendum, III, § 2, which provides that: 

"No law . . . the operation of which is restricted ... to particular districts 
or localities of the commonwealth . . . shall be the subject of a referendum peti- 
tion." 

• It is provided in G. L. (Ter. Ed.) c. 4, § 1, that a statute which may not be 
made the subject of a referendum petition and which is not declared therein to be 
an emergency hiw and for which a different time of taking effect is not expressly 
provided in the measure, shall take effect on the thirtieth day after its enactment. 
Chapter 625 is not declared therein to be an emergency law, no time for its 
taking effect is expressly provided in its terms, and it may not be the subject of 
a referendum petition. It follows that it took effect the thirtieth day after the 
date of its enactment, which was August 4, 1941. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Marriage — Solemnization — X on-resident Army or Savy Chaplain. 

May 22, 1942. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir: — You have asked my opinion as to whether, under G. L., c. 207, 
§ 38, as amended, "a non-resident Army or Navy chaplain is authorized to solem- 
nize marriage within this Commonwealth." 

I regret that I am unable to give you a categorically affirmative answer to this 
question. If an opinion of the Attorney General were an expression of personal 
views, my answer would most certainly be in the affirmative. If the question in- 
volved an interpretation of a point of law, the effect of which would be confined 
to the present emergency, and if such an interpretation was governed neither by 
precedent nor by statute, I should resolve any doubts that might arise in my 
mind in favor of the convenience of members of the armed forces. Many personal 
and property rights and privileges depend upon the validity of the marriage cere- 
mony (see Rhodes v. Rhodes, 96 F. (2d) 715; also Restatement of the Conflict of 
Laws, § 122). 

The General Court of Massachusetts has consistently limited the authority to 
solemnize a marriage (see Commonwealth v. Mimson, 127 Mass. 459, for a summaiy 
of earlier statutes), yet has tried to protect innocent parties (see G. L. (Ter. Ed.) 
c. 207, § 42). Prior to 1932 a non-resident had no authority to solemnize a mar- 
riage except as provided in section 39 of said chapter 207. 

St. 1932, c. 162, amended section 38 of G. L. (Ter. Ed.) c. 207 by inserting the 
words which are in itaHcs, so as to read as follows : 

"A marriage may be solemnized in any place within the commonwealth by a 
minister of the gospel who resides in the commonwealth or who if a non-resident is 



114 P.D. 12. 

the pastor of a church or denomination duly established in the commonwealth and who 
is recognized by his church or denomination as duly ordained and in good and 
regular standing as a minister of such church or denomination; by a rabbi of the 
Israehtish faith, duly licensed by a congregation of said faith established in the 
commonwealth, who has filed with the clerk or registrar of the city or town where 
such congregation is established, a certificate of the establishment of the synagogue 
therein, the date of his appointment thereto and of the term of his engagement; 



The above statute, therefore, granted authority to certain non-residents to 
solemnize marriage. Strong legal arguments could be made against any cate- 
gorical ruling that non-resident army or navy chaplains are authorized to solemnize 
marriage within the Commonwealth. For example: The statute refers to a non- 
resident "pastor". "Pastor" is defined as "the minister of the Christian religion/ 
who has charge of a congregation," Wharton's Law Lexicon; as "the ininister or 
priest in charge of a church or parish," Webster's New International Dictionary; 
and as "a permanent or established official of the parish, who holds a position of 
spiritual power without reference to locality," Du-pont v. Pelletier, 120 Me. 114. 
It could be argued with force in a court that the word "pastor" as used by the 
Legislature means a priest or minister in charge of a specific church, parish, con- 
gregation or denomination. The word "church" has been defined by the Supreme 
Judicial Court to mean "a body of persons associated together for the purpose 
of maintaining Christian worship and ordinances," Silsby v. Barlow, 16 Gray 329, 
330, as the "body of communicants gathered into church order, according to estab- 
lished usage, in any town, parish, precinct or religious society, established accord- 
ing to law, and actually connected and associated therewith, for religious pur- 
poses," Stebbins v. Jennings, 10 Pick. 172, 173; and as the "body of communicants 
gathered in the church membership for the observance of sacraments and for 
mutual support and edification in piety, morality and reUgious observances," 
McNeilly v. First Presbyterian Church in Brookline, 243 Mass. 331. One of my 
predecessors in office, for the purpose of section 38 of said chapter 207, has de- 
fined the word "denomination" as follows: "a religious sect united upon a com- 
mon creed or system of faith which, if it holds that creed in common with other 
sects, is further distinguished from these by its beUef in matters of pohty or dis- 
cipline." VII Op. Atty. Gen. 152. The duties of an army or navy chaplain are 
closely analogous to those performed by a clergyman in civilian life, modified 
only by the peculiar conditions attaching to military life and especially by the 
necessity that each chaplain will, so far as practicable, serve the moral and re- 
ligious needs of the entire personnel of the command to which he is assigned. He 
has the duty to hold appropriate religious services for the benefit of the command 
to which he is assigned at such times and places as may be designated by the com- 
manding officer, and in the performance of his duty is accountable to the com- 
manding officer. See Army Regulations 60-5, dated November 1, 1941. 

If there is any doubt whether or not a chaplain falls witliin the words "pastor 
of a church or denomination," I fear that it might be held that such church or 
denomination or synagogue referred to in section 38 of chapter 207 must be one 
that is established within the Commonwealth of Massachusetts. All army posts 
and navy yards within the area of Massachusetts are federal reservations and sub- 
ject to the laws of the United States, except limited rights which were reserved 
when ceded to the Federal Government. See U. S. Const., art. I, § 8. However 



P.D. 12. 115 

iiuich I might be inclined to disagree, a contention that a church, denomination 
or synagogue established on a federal reservation and subject to the laws of the 
United States is not established within the Commonwealth of Massachusetts, as 
required by said section 38, would have some force. 

I believe that a suggestion might well be made to the Legislature that section 
38 be amended specifically to authorize army and navy chaplains to solemnize 
marriage within the Commonwealth. Such legislation would answer your ques- 
tion with finality and certainty. In the meanwliile the Governor may in his dis- 
cretion designate an army or navy chaplain to solemnize specific marriages under 
the terms of G. L. c. 207, § 39. The pertinent part of this statute reads as 
follows: 

"The governor may also in his discretion designate a minister of the gospel or 
rabbi who resides out of the commonwealth to solemnize a specified marriage, and 
the state secretary shall issue to him a certificate of said designation. A minister 
or other so designated, if qualifying under said certificate, may solemnize said 
marriage at any place within the commonwealth." 

Under this section any non-resident army or navy chaplain so designated by the 
Governor may qualify to solemnize marriage in the Commonwealth. 

My answer to your question, therefore, may be summarized in this manner: 
Certain non-resident army or navy chaplains coming within the terms of statutes 
enacted by the Legislature are authorized to solemnize marriages within this 
Commonwealth. The doubts which arise in the cases of others not clearly within 
the designations made by the Legislature can only be removed by the Legislature 
itself. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Statute — Acquisition of Land by United States. 

June 2, 1942. 
Hon. Raymond J. Kenney, Commissioner of Conservation. 

Dear Sir: — Li a recent letter you quoted St. 1931, c. 183, which authorized 
"the acquisition by the United States, by purchase, gift, devise or lease, of such 
areas of land or water, or of land and water, in Massachusetts, as the United 
States may deem necessary for the establishment of migratory bird reservations 
. . ." You also referred to the amendment of that law by St. 1941, c. 599, § 2 
approved August 2, 1941, and effective .Lanuary 1, 1942, which added the following 
paragraph to section 97: 

"Nothing in this section shall be deemed to permit the acquisition by the United 
States of any land or water, or any land and water, without the prior approval of 
such acquisition by the commissioner." 

You requested my opinion "as to whether or not the provisions of chapter 599, 
above referred to, in any way affect the steps which may have been taken prior to 
January 1, 1942, by an agency of the Federal Government in connection with the 
establishment of a wild life refuge in this state." 

The phrase, "steps which may have been taken," being somewhat ambiguous, 
I am unable to answer your question categorically. You will note that the amended 
statute requires your approval only with respect to the acquisition of land or 



116 P.D. 12. 

water, or land and water, by the United States. Acquisition, as used in the 1941 
amendment requiring your approval, obviously refers to the transfer of title, pos- 
session or control of property by the methods prescribed in that statute. Whether 
such a transfer has been effected in a particular case is often a complex problem, 
depending upon the facts of that case. 

It is my opinion that if the title, possession or control of a given tract of land or 
water was actually transferred to the United States prior to January 1, 1942, in 
accordance with the terms of the statute then in force, your approval of the acquisi- 
tion is not required in order to make it valid. This conclusion follows from the 
general principle of statutory interpretation which is summarized in the following 
quotation from Hanscom v. Maiden ct Melrose Gas Light Company, 220 Mass. 
1,3: 

"The general rule of interpretation is that all statutes are prospective in their 
operation, unless an intention that they shall be retrospective appears by neces- 
sary implication from their words, context or objects when considered in the light 
of the subject matter, the pre-existing state of the law and the effect upon existent 
rights, remedies and obligations. Doubtless all legislation commonly looks to the 
future, not to the past, and has no retroactive effect unless such effect manifestly 
is required by unequivocal terms. It is only statutes regulating practice, procedure 
and evidence, in short, those relating to remedies and not affecting substantive 
rights, that commonly are treated as operating retroactively, and as applying to 
pending actions or causes of action." 

It is to be noted that the 1941 amendment expressly prescribes the date when 
it shall become effective. The general rule in such cases is that every provision 
and clause of the act is suspended until the time specified for its going into opera- 
tion and that the powers conferred on any person by the statute do not become 
vested until that time arrives. Opinion of the Justices, 3 Gray, 601, 607. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Motor Vehicles — Registration — Absentee Owners — Applications — Regulations. 

June 4, 1942. 

Hon. Herman A. MacDonald, Commissioner of Public Works. 

Dear Sir : — You have informed me, with relation to applications by absentee 
owners for the registration of motor vehicles under G. L. (Ter. Ed.) c. 90, § 2, as 
amended, that it has been the practice of the Registrar of Motor Vehicles in cer- 
tain cases to accept an application signed on behalf of an owner by a person acting 
under a written power of attorney authorizing him to execute such an application 
for the owner. That practice is described in the "Motor Vehicle Registration 
Manual" pubhshed by the Department of Public Works as follows: 

"Absottee Ownership. AppHcation should be signed by the absentee owner. In 
special cases, an exception may be made to the general rule which requires the signa- 
ture of the owner. An apphcation by an attorney, acting under a written power of 
attorney, filed with the apphcation, will be accepted, although the validity of such 
a registration has never been determined by the courts of the Commonwealth." 

You now inquire whether an application for registration signed in accordance 
with the foregoing practice is a valid one upon which registration of a motor ve- 



P.D. 12. 117 

hide miiy legally be granted. As stated in your letter, the question of the validity 
of such an application by an agent acting under a written power of attorney has 
become increasingly important by reason of the large number of automobile 
owners who are absent from the Comnu)nwealth or from the United States on 
military service. 

I am of the opinion that the Registrar of Motor \'ehicles has ample authority 
under G. L. (Ter. Ed.) c. 90, § 31, to prepare a rule permitting the registration of 
a motor vehicle in the name of its owner upon an application signed in his behalf 
by a person acting under a written power of attorney for that purpose. Such a 
ruling may be made applicable to registrations generally or may be restricted to 
a limited class of cases in which the circumstances would cause exceptional hard- 
ship if the personal signature of the owner were required. 

The statutory requirements concerning registration are contained in the follow- 
ing portion of G. L. (Ter. Ed.) c. 90, § 2: 

"Application for the registration of motor vehicles and trailers maj' be made by 
the owner thereof. The application shall contain, in addition to such other particu- 
lars as may be required by the registrar, a statement of the name, place of residence 
and address of the applicant, with a brief description of the motor vehicle or trailer, 
including the name of the maker, the number, if any, affixed by the maker, and, in 
case of a motor vehicle, the engine number and the character of the motor power. 
The registration fee as required in section thirty-three shall accompany such appli- 
cation. . . ."' 

Section 2 does not specifically require that an application for registration of a 
motoi' vehicle shall be signed by the owaier himself. It does not contain any refer- 
ence to the signature of the owner nor to any other matters from which an inference 
uould arise that the owner himself must sign the application. 

It has been held in many opinions of the Supreme Judicial Court that only a 
person coming within the scope of the word "owner" as used in this section may 
lawfully have a motor v-ehicle registered in his name. It has never been held by 
the Supreme Judicial Court that an owner may not properly make application for 
registration through an agent duly authorized by him for that purpose. There is 
nothing in the nature of the statute itself nor in its requirements which indicates 
a legislative intent that such an application must necessarily be made and signed 
personally by the owner of a motor vehicle, and that the performance of such 
acts may not be delegated by him. See Finnegan v. Lucij, 157 Mass. 439. 

As appears from the quoted portion of section 2 above, the Registrar of Motor 
Vehicles is specifically authorized to require "such other particulars" as he may 
deem desirable to be contained in the application. In the exercise of that authority 
the Registrar may require the actual signature of the owTier to be placed upon 
every application, since the o\vner's signature may serve to identify him. Such a 
requirement would be in furtherance of one of the legislative purposes behind the 
enactment of said section 2, namely, to afford means for identification of the owner 
and of the motor vehicle. Toyf v. Holland, 288 Mass. 552, 554; DiCecca v. Bucci, 
278 Mass. 15, 16. Whether the right to procure registration upon an application 
signed by an agent acting under power of attorney should be made available to 
all persons is, in my opinion, a question of policy which, under the statute, the 
Registrar is authorized to decide. 

It has been suggested that the provisions now contained in G. L. (Ter. Ed.) 
c. 90, § 24, imposing p>enalties upon a person who "in an application for registra- 



118 P.D. 12. 

tion of a motor vehicle or trailer gives as his name or address or place where such 
vehicle is principally garaged a false name, address or place," indicate a legislative 
intent that such an application be actually signed by the owner of a motor vehicle 
sought to be registered. I am unable to adopt that theory. The statutory re- 
quirements with respect to registration are contained in the above-quoted portions 
of section 2 and they have been in their present form with no material amendment 
since the enactment of the General Laws in 1920. In my opinion, the meaning of 
the language contained in that section is not to be controlled by the aforemen- 
tioned provisions of section 24 enacted in 1936. See St. 1936, c. 182, § 1. 

In my opinion such regulations as may be issued by the Registrar concerning 
this matter should comply in all respects with the requirements set forth in G. L. 
(Ter. Ed.) c. 90, § 31, which prescribe the procedure to be followed in the prepara- 
tion and promulgation of rules and regulations governing the use and operation of 
motor vehicles. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Retirement Law — County Commissioner of Worcester — Attainment of Age of 

Seventy. 

June 15, 1942. 

Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — In requesting my opinion as to whether one Elbert M. Crockett 
is required to cease acting as County Commissioner of Worcester County by reason 
of his having attained the age of seventy years, you have advised me of the follow- 
ing pertinent facts: 

Mr. Crockett was appointed County Commissioner on November 16, 1931, to 
fill an unexpired term. He was then over fifty-five years of age and was, therefore, 
not eligible to become a member of the Worcester County Retirement System es- 
tablished pursuant to G. L. c. 32, §§ 20-25, inclusive. Following his completion 
of the unexpired term, Mr. Crockett was elected County Commissioner and has 
continued to hold that office up to the present time by successive elections. He is 
understood to have reached the age of seventy on or about August 18, 1941. Worces- 
ter County accepted the provisions of St. 1936, c. 400, in 1936 and by reason thereof 
a new retirement system became operative therein on January 1, 1937. Mr. 
Crockett has not exercised his option to become a member of the new retirement 
system. 

In my opinion. County Commissioner Crockett is not required, by reason of his 
having reached the age of seventy, to relinquish his office. 

The retirement law which was in effect in Worcester County when Mr. Crockett 
was first appointed County Commissioner, in 1931, contained the following pro- 



" (2) All employees who enter the service of the county after the date when the 
system is declared established, except persons who have already passed the age of 
fifty-five, shall, upon completing ninety daj's of service, thereby become members. 
Persons over fifty-five who enter the ser\dce of the county after the establishment 
of the s3'stem shall not be allowed to become members, and no such employee shall 
remain in the service of the county after reaching the age of seventy." G. L. c. 32, 
§ 22, par. (2). 



P.D. 12. 119 

Had the foregoing provisions remained effective until Mr. Crockett reached the 
age of seventy in August, 1941, they would have compelled his retirement at that 
time, despite the fact that he is an elected officer rather than an "employee" in 
the ordinary sense. The inclusion of elected officers in the retirement system as 
"employees" was peculiar to Worcester County (see definition of "employees," 
G. L. c. 32, § 20). However, it is my opinion that the above-quoted provisions 
of section 22 (2) ceased to be effective upon Worcester County's acceptance of 
St. 1936, c. -400, which occurred prior to January 1, 1937, and that those provisions 
do not, therefore, require the termination of Mr. Crockett's services as County 
Commissioner. 

St. 1936, c. 400, struck out sections 20 to 25 of chapter 32 of the General Laws 
as then in force, and substituted for those sections in said chapter 32 the new sec- 
tions 20 to 251, inclusive. The new sections pro^'ide, as did the old, the frame- 
work for county retirement systems. Section 5 of the 1936 statute reads as follows: 

"Sections twenty to twenty-five H, inclusive, of chapter thirty-two of the Gen- 
eral Laws, as appearing in section one of this act, shall take effect in any county 
only upon their acceptance as provided in section twenty five I of said chapter, as 
appearing in said section one. Sections twenty to twenty-five, inclusive, of said 
chapter thirty-two, as amended otherwise than by this act and amendments hereof, 
shall continue in force as to any county which has accepted said sections twenty to 
twenty-five, inclusive, in the manner therein provided, until such county accepts 
sections twenty to twenty-five H, inclusive, of said chapter, as appearing in section 
one of this act. After such acceptance said sections twenty to twenty-five, inclusive, 
as amended othenciss than by this act and amendments hereof, shall remain in force 
only to the limited extent provided by section tiventy-five I of said chapter, as appearing 
in section one of this act." 

The new sections 20 to 25H of chapter 32 having been accepted by Worcester 
County before January 1, 1937, reference must be had to the new section 251 in 
order to determine whether, by St. 1936, c. 400, § 5, quoted above, the provisions 
of the old section 22 (2) with respect to compulsory retirement at seventy remained 
in force after the acceptance of the new sections. The pertinent provisions of said 
section 251 read as follows: 

"Section 251. Sections twenty to twenty-five H, inclusive, may be ac- 
cepted in any county except Suffolk by vote of the county commissioners of such 
county. ... 

In case said sections are accepted in a county having a contributory retirement 
system the retirement board thereof shall continue in office, with the same powers 
and duties as formerh^ until the board established under said sections commences 
to function thereunder: and thereafter said last mentioned i)oard, if any members 
of the previously existing retirement system shall not elect to become members of 
the system under said sections or if there are any beneficiaries of such previously 
existing retirement system, shall continue to operate as to such memliers and bene- 
ficiaries such previously existing retirement system in accordance with the provi- 
sions of law relative thereto, in addition to operating the system under said sections, 
and the board of such previously existing system shall cease to exist; provided, 
that the board established under said sections may in its discretion merge similar 
funds under both systems. ..." 

From the foregoing provisions it is apparent that upon the acceptance of the 
new sections by Worcester County, and upon the establishment and functioning 
of a new retirement board pursuant thereto, the preexisting County Retirement 



120 P.D. 12. 

System ceased to be operative except as to (1) members of the previously exist- 
ing retirement system who did not elect to become members of the new system, 
or (2) beneficiaries of the previously existing retirement system. Mr. Crockett 
never having been a member or beneficiary of the preexisting retirement system, 
its provisions were not kept alive as to him by said new section 251 or by any 
other provision of law. Consequentlj^, the preexisting requirement that he termi- 
nate his services with the County upon reaching the age of seventy was nullified 
by St. 1936, c. 400, § 5, upon the County's acceptance of the new system before 
he attained that age. 

The statutes governing the new retirement system in Worcester County, as 
accepted in 1936, and as subsequently amended, do not require Mr. Crockett's 
retirement merely because he is seventy years of age. The only provision in the 
new law which might be deemed to have that effect is contained in the new sec- 
tion 21 (3), as inserted in chapter 32 of the General Laws (Ter. Ed.) by St. 1936, 
c. 400, § 1. The pertinent provision of the new section 21 (3) reads as follows: 

" (3) Persons fifty-five years of age or over who originally enter the service of 
the county or hospital district after the date when the system becomes operative 
shall not become members thereof, and no such employee shall remain in the serv- 
ice of the county or hospital district after reaching age seventy. ..." 

The "system" referred to in the foregoing quotation from section 21 (3) is de- 
fined in section 20 as "a contributoiy retirement system established in any county 
which accepts sections twenty to twenty-five H, inclusive, as provided in section 
twenty-five I." 

It follows, therefore, as applied to Worcester County, where the new system 
became operative on January 1, 1937, that section 21 (3) requires the retirement 
at the age of seventy of employees who originally entered the service after .January 
1, 1937, at the age of fifty-five or over. Since Mr. Crockett entered the service of 
Worcester County many years prior to that date, he does not come within the 
purview of section 21 (3). 

In conclusion, therefore, it is my opinion that there is no provision of law re- 
(luiring Mr. Crockett to terminate his services as County Commissioner merely 
because he has attained the age of seventy. 

Your request for my opinion also contained the following question : 

"Since Elbert M. Crockett is a 'veteran' of the World War, can he as an elected 
officer have the benefits of General Laws, chapter 32, sections 56 to 60, or any of 
them?" 

From the information which has been submitted to me, it appears that this 
question is purely hypothetical, particularly in view of the opinion which I have 
just expressed concerning the necessity of Mr. Crockett's retirement. It has long 
been the established practice of this department to refrain from rendering opinions 
on hypothetical questions. Following that practice, I must respectfully decline 
to answer your question as to Mr. Crockett's eligibility to retirement under chap- 
ter 32, sections 56 to 60. 

Very truly yours, 

Robert T. Bushnell, Attorney Geyieral. 



P.D. 12. 121 

Settlement — Vetei'an — Acquisition of Military Settlement. 

June 18, 1942. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear 8ir: — In retiuesting my opinion upon certain questions concerning the 
settlement of a person who served in the United States Navy during the first World 
War, you have advised me of the following facts to which the questions relate: 

The veteran was born in Quincy on October 18, 1895. He lived in Quincy and 
Newton until he enlisted in the United States Navy on July 22, 1915. He received 
an honorable discharge from the navy on July 21, 1920, and since then has re- 
sided in various cities and towns in the Commonwealth, with no five-year resi- 
dence in any one place. The veteran's parents lived in Newton from 1904 to 
October 3, 1911, when they moved to Brookline. They remained in Brookline 
until 1914 and then moved to WoUaston, where they continued to reside, at least 
until October 18, 1916. The veteran's father lost his settlement in Newton on 
October 3, 1916, a few days before the son had attained his majority. 

You referred to a derivative settlement which the veteran might have had through 
his mother under G. L. c. 116, § 5, and to the amendment of that section by chap- 
ter 292 of the Acts of 1926. 

1. Your specific question was, "As this case comes up after 1926 should we in- 
terpret the law as now in force, and hold that the mother lost [her settlement] 
with the father on October 3, 1916?" 

I regret to say that the derivative settlement rights of the veteran appear to 
be determined by the law as it stood when the rights were acquired, which in 
this case was prior to the amendment of 1926. The Supreme Judicial Court of 
Massachusetts has held in several cases that the amendment contained in St. 
1926, c. 292, has no retroactive effect. See Lexington v. Commonwealth, 279 Mass. 
571, 573-574; Brockton v. Conway, 278 Mass. 219, 223-224. 

2. You also ask the question, "Why should he not acquire a military settlement 
even though he enlisted before the time of war, if he actually was in the service 
when the war was declared?" 

I know of no reason why the Legislature should have treated such a veteran 
differently, but it has done so nevertheless. We have to take the law as the Legis- 
lature makes it, and the provisions of the applicable statute, G. L. (Ter. Ed.) 
c. 116, § 1, cl. Fifth, do not permit of the acquisition of a military settlement 
except in accordance with its terms. These terms grant a military settlement 
under certain circumstances to — 

"A person who enlisted and was mustered into the militarj- or naval service of 
the United States, as a part of the quota of a town in the commonwealth under any 
call of the president of the United States during the war of the rebellion or any war 
between the United States and any foreign power, or who was assigned as a part of 
the quota thereof ..." 

and to 

"Any person who was inducted into the military or naval forces of the United 
States under the federal selecti\e service act, or who enlisted in said forces in time 
of wor between the United States and any foreign power. . . ." 

On the facts you have given me, therefore, I am obliged to rule that a veteran 
who enlisted in the Ignited States Na\'\' in 1915 does not come within the classes 



122 P.D. 12. 

of persons to which the statute grants the privilege of acquiring a military settle- 
ment. I wish very much that the law were otherwise. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — Commissioner of Soldiers' Relief in Lawrence — Officer — Election 

by City Council. 

June 23. 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

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

"Is the position of Commissioner of Soldiers' Relief in the City of Lawrence ex- 
cluded from the classified Civil Service by reason of the fact that the ordinance 
creating this position provides that the occupant should be elected by the City 
Council, and therefore, exempt under the provisions of General Laws, chapter 31, 
section 5?" 

I answer your question in the affirmative. 

The position of Commissioner of Soldiers' Relief in the City of Lawrence was 
established by an ordinance enacted on March 12, 1928, by the Citj^ Council, 
whose members are the Aldermen of the city. 

G. L. (Ter. Ed.) c. 31, § 3, provides that the Civil Service Commission shall, 
subject to the approval of the Governor and Council, make rules and regulations 
which shall regulate the selection of persons to fill appointive positions in the 
government of the Commonwealth, its cities and certain of its towns. Section 5 
of said chapter 31 provides in part that: 

"No rule made by the commission shall apply to the selection or appointment of 
any of the following: 

Judicial officers; officers elected by the people or, except as otherwise expressly 
provided in this chapter, by a city council; ..." 

Upon considering the powers, duties and functions of the Commissioner of 
Soldiers' Relief in Lawrence, as shown by the provisions of the ordinance creating 
the position and by other facts which have officially come to my attention, I am 
of the opinion that the incumbent of that position is an "officer" rather than an 
"employee." The city ordinance which established the position pro\'ides that 
the Commissioner of Soldiers' Relief shall be elected by the City Council. The 
position being that of an officer elected by the City Council, it comes within the 
scope of the language quoted above from G. L. (Ter. Ed.) c. 31, § 5, and is not 
within the classified Civil Service. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Probation Service — Appointment of Officers — Re-employment for Duration of War. 

June 30, 1942. 
Mr. Albert B. Carter, Commissioner of Probation. 

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

"May appointments to the probation service be made under chapter 16, Acts 
of 1942, without the approval required bv chapter 276, section 83, General Laws, 
as amended by chapter 360, Acts of 1936?" 

I answer your question in the negative. 



P.D. 12. 123 

G. L. (Ter. Ed.) c. 276, § 83, as amended by chapter 360 of the Acts of 1936, 
was further amended in 1937 bj'- chapter ISO of that year. As so amended it pro- 
vides for approval by the Associate Justices of the Municipal Court of Boston of 
appointments of probation officers by the Chief Justice and of the amount of 
their compensation fixed by him, and for the approval by the Administrative 
Connnittee of the District Courts of the appointments of probation officers made 
by a justice of a district court, and for similar approval of the amount of their 
compensation fi.xed by liim. 

St. 1942, c. 16, authorizes the re-employment for the duration of the war of any 
former officer or employee of the Commonwealth, or one of its poHtical subdivi- 
sions, who has been retired or separated from the service by reason of superannua- 
tion or disability. 

In my opinion, the provisions of chapter 16 were not intended to eliminate the 
basic requirements contained in the statute prescribing the method of appoint- 
ment to the office in question. 

It follows that appointments of probation officers made under St. 1942, c. 16, 
must be approved in the manner set forth in said G. L. (Ter. Ed.) c. 276, § 83. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Department of Public Health — State Hospitals and Sanatoria — Licenses. 

July 1, 1942. 
Dr. Pail J. Jak.nl\uh, Commissioner of Public Health. 

Dear Sir: — You liave asked me whether State institutions in the nature of 
hospitals or sanatoria, conducted by the various departments of the Commonwealth, 
are required to be licensed by the Department of Public Health under the provi- 
sions of G. L. (Ter. Ed.) c. Ill, §§ 71 to 73, as inserted by St. 1941, c. 661. 

I answer your question in the negative. 

Section 71 provides that the Department of Public Health shall issue a license 
for a term of two years "to any person whom it deems suitable and responsible to 
establish or maintain a hospital or sanatorium which meets the requirements of 
the department," provided the appropriate local board of health has issued a 
certificate that such proposed hospital or sanatorium is suitable for its purpose. 
The fee for such a Hcense is set at ten dollars. A "hospital" or "sanatorium" is 
defined as 

"any institution, whether conducted for charity or for profit, which is advertised, 
announced or maintained for the express or implied purpose of caring for persons 
admitted thereto for purposes of diagnosis, or medical or surgical treatment which 
is rendered within said institution, except an institution caring exclusively for cases 
of mental diseases and licensed by, or under the general super^'ision of, the depart- 
ment of mental health." 

Section 72 provides that the Department of Public Health shall classify and 
make rules for the conduct of hospitals and sanatoria. 

Section 72A provides for the appointment of an advisory committee on hospitals 
and sanatoria serving with the Department. 

Section 73 makes it an offense punishable by fine or, upon repetition, by fine or 
imprisonment to establish or maintain u hospital or sanatorium without a license 
and for a licensee to violate a rule made under section 72. 



124 P.D. 12. 

It is plain from a statement of the foregoing provisions of the statute that it 
was not the intent of the Legislature to require the licensing of the Common- 
wealth's own institutions conducted by its various departments. Authority to 
establish and conduct hospitals and sanatoria, which are institutions of the Com- 
monwealth, flows directly from the Legislature itself and is given in the statutes 
making provision for them. 

The provisions of said sections 71 to 73 inserted in G. L. (Ter. Ed.) c. Ill by 
St. 1941, c. 661, are in the nature of police regulations, and it is well settled that 
such regulations are not to be construed as applying to the Commonwealth, its 
officers or institutions, unless it clearly appears that it was the intention of the 
Legislature that they should so apply. Teasdale v. Neirell &c. Construction Co., 
192 Mass. 440. V Op. Atty. Gen. 128. 

It does not appear that it was the intent of the Legislature in inserting said 
sections 71 to 73 in chapter 111 of the General Laws by St. 1941, c. 661, to sub- 
ject such of the Commonwealth's own institutions as are hospitals or sanatoria 
to the necessity of obtaining certificates as to suitability from local !)oards of 
health or to the licensing power of the Department of Public Health. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Great Ponds — Tashmoo Lake — Changes in Characteristics. 

July 2S. 1942. 
Hon. Raymond J. Kenney, Commissioner of Conservation. 

Dear Sir: — The town of Tisbury was authorized by St. 1935, c. 161, to bor- 
row money "for the purpose of improving harbor facilities by connecting Tashmoo 
'lake with \''ineyard Sound." You have informed me that, in pursuance of this 
authority, the natural channel between the lake and the sea has been widened 
and deepened, riprap has been installed, protective measures have been taken 
which will keep the channel open, the lake has become saline, the rise and fall of 
the tide are apparent in it, and small boats may pass through the channel. You 
now request my opinion as to whether Tashmoo Lake, which you advise me has 
hitherto been regarded as a great pond, has now become an arm of the sea under 
the jurisdiction of the Division of Marine Fisheries, or retains its status as a great 
pond and so is under the jurisdiction of the Division of Fisheries and Game. 

In my opinion, Tashmoo Lake is still a great pond. 

A great pond is "a pond of a certain area created by the natural formation of 
the land at a particular place." Commonicealth v. Tiffany, 119 Mass. 300, 303. 
It does not necessarily lose its identity as the result of artificial changes and the 
only test of whether a body of water is a great pond, which has been applied in 
the decisions of our Supreme Judicial Court, is the extent of the area covered by 
the pond in its earlier natural condition. VH Op. Atty. Gen. 262. Commonirealth 
V. Tiffany, 119 Mass. 300; Tyler v. Hudson, 147 Mass. 609, 613. The salinity of 
the water and the influence of the tide are not controlling factors in determining 
the character of such ponds, as many of them are connected with the sea. Com- 
inomrealth v. Vincent, 108 Mass. 441, 449. Accordingly, Tashmoo Lake is still a 
great pond unless the Legislature, which controls all great ponds in the public 
interest, intended that it should become an arm of the sea. Sprague v. Minon, 195 



P.D. 12. 125 

Mass. 581, 583; Commonirealth v. Alger, 7 Cash. 53, S5; Fajj v. Salem d' Danvers 
Aqueduct Co., Ill Mass. 27, 28. 

Great ponds not appropriated before the Colony Ordinance of 1647 to private 
persons are public property, and the ri<>;ht of reasonably vising and enjoying them 
for lawful purposes is connnon to all. They are available to the public for fishing, 
fowling, boating, skating, cutting and removing ice, taking water for domestic or 
agricultural purposes, and such other reasonable uses as can be made of them under 
certain conditions subject to legislative restriction. Hillinger v. Eames, 121 Mass. 
539; Slater v. Gunn, 170 Mass. 509. VII Op. Atty. Gen. 262, 266-272. The rights 
of the public in coastal waters are more limited and are subject to local regulation, 
as far as some forms of fishing are concerned. G. L. (Ter. Ed.) c. 130, §§ 52, 57. 

In view of the rights of the public in great ponds, it should not be inferred that 
the Legislature intended to change the status of such a pond unless that intention 
has been clearly and unmistakably expressed. There is no provision in St. 1935, 
c. 161, which indicates a legislative intention that Tashmoo Lake should lose its 
identity as a great pond. It is significant of such lack of intention that the Legis- 
lature subsequently referred to the lake as "Tashmoo Pond" in St. 1939, c. 100, 
which authorized the construction of a bridge across the channel between that 
body of water and Vineyard Sound. Accordingly, Tashmoo Lake must be re- 
garded as a great pond, although some of its former characteristics have been 
changed by artificial means. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Metropolitan District Water Supply Commission — Authority to Divert Waters of 

Ware River. 

Aug. 19. 1942. 
Metropolitan District Water Supply Commission. 

Gentlemen: — You have requested my opinion as to "whether, under the pro- 
visions of chapter 375 of the Acts of 1926, the Commission has any right to divert 
the waters of the Ware River when the flow of such waters is in excess of 85 mil- 
lion gallons a day during the period between June 15 and October 15." 

My opinion is that the Commission has no such right, unless such jiroposed 
diversion is approved each year by the State Department of Public Health, and 
unless such proposed diversion, if it will have any effect whatsoever on the navi- 
gable capacity of any water of the United States, is also approved by the Secre- 
tary of War. 

Section 1 of chapter 375 of the Acts of 1926 directed the Commission to divert 
into the Wachusett reservoir the flood waters of the Ware River at a certain 
point of diversion to be established as provided therein. Section 4 of chapter 
375 defined the flood waters of the Ware River as "the waters thereof at and above 
the point of diversion established under section one in excess of a flow of eighty- 
five million gallons a day, meaning thereby that on any day when the natural 
flow of said river is less than eighty-five million gallons no water shall be di\-erted." 

Section 1, as clarified by St. 1939, c. 513, § 7, also provided that said flood 
waters "may be so diverted at any time in any year, including the period between 
May thirty-first and December first, but no such diversion shall be made l)etween 
said dates in any year unless approved by the state department of public health." 



126 P.D. 12. 

It is clear, therefore, that the Commission must secure the approval of the State 
Department of Public Health before making the proposed diversion. 

In 1899, Congress, in assertion of "its sovereign power to regulate commerce 
and to control the navigable waters within its jurisdiction" {Sanitary District v. 
United States, 266 U. S. 405, 425), included certain sections in the Rivers and 
Harbors Appropriation Act of that year that are pertinent to the present inquiry. 
Section 10 of that act provides, in part: "The creation of any obstruction not 
affirmatively authorized by Congress, to the navigable capacity of any of the 
waters of the United States is hereby prohibited; . . . and it shall not be lawful 
to excavate or fill, or in any manner to alter or modify the course, location, con- 
dition, or capacity of, any port, roadstead, haven, harbor, canal, lake, harbor of 
refuge, or inclosure within the limits of any breakwater, or of the channel of any 
navigable water of the United States, unless the work has been recommended by 
the Chief of Engineers and authorized by the Secretaiy of War prior to begin- 
ning the same." 33 U. S. C. A., § 403 (Mar. 3, 1899, c. 425, § 10, 30 Stat. 1151). 

A diversion of water that impairs the navigable capacity of a river, lake, or 
other body of water of the United States is such an obstruction to navigable ca- 
pacity as is prohibited by section 10 of the Act of 1899, unless authorized by the 
Secretary of War on the recommendation of the Chief of Engineers. Sanitary 
District v. United States, 266 U. S. 405, 426; Wisconsin v. Illinois, 278 U. S. 367, 
413-414; SO Op. of U.S. Atty. Gen., 217-218; 34 ifeid. 410, 416-417. 8ee Connecti- 
cut V. Massachusetts, 282 U. S. 660. In section 9 of that act Congress prohibited 
the erection of certain enumerated structures over and in navigable waterways 
without its consent; and then in section 10 Congress prohibited all obstructions 
to the navigable capacity of waterways that were not affirmatively authorized by 
it, unless such obstructions should be authorized by the Secretary of War as pro- 
vided therein. "The true intent of the Act of Congress was that unreasonable 
obstructions to navigation and navigable capacity were to be prohibited, and in 
the cases described in the second and third clauses of Section 10, the Secretary 
of War, acting on the recommendation of the Chief of Engineers, was authorized 
to determine what in the particular cases constituted an unreasonable obstruction." 
Wisconsin v. Illinois, 278 U. S. 367, 413. See Sanitary District v. United States, 
266 U. S. 405, 426. 

Shortly after the Legislature directed the Commission to divert the waters of 
the Ware and Swift Rivers, Massachusetts applied to the Secretary of War for 
permission to make certain diversions, under section 10 of the Act of 1899. The 
Ware and Swift Rivers are tributaries of the Chicopee River, and the Chicopee is 
a tributary of the Connecticut River. The Ware, Swift and Chicopee Rivers were 
not considered navigable; the Connecticut, however, was. The Secretary of War 
made a finding that the proposed diversion of the Ware River "will have no ad- 
verse effect on the navigable capacity of the Connecticut River." He permitted 
diversion of the flood waters of the Ware River, as proposed, in excess of 85,000,000 
gallons per day at the point of diversion between October 15 and June 15, and 
prohibited the taking of any water except during that period. He also permitted 
a certain diversion of the Swift, but more limited than that proposed. 

The opinion of the Supreme Court of the United States in Connecticut v. Massa- 
chusetts, 282 U. S. 660, wherein Connecticut was denied an injunction against the 
diversions by Massachusetts, as authorized by the Secretary of War, concluded 
with the following paragraphs: 



P.D. 12. 127 

"Connecticut maintains that the presently proposed diversion will not tje ade- 
quate for the future needs of the Boston district and that the size and character 
of the works as well as leo;islative reports and other circumstances disclose an inten- 
tion on the part of Massachusetts, when the need shall arise, to draw from other 
rivers . . . tributary' to the Connecticut and insists that the decree should restrain 
Massachusetts forever from increasintj its diversion to an amount in excess of what 
the !^ecretar\- of War has already indicated would cause no damage to the na\ig;a- 
tion of the Connecticut. 

"The scope of the project is that shown by the Acts as limited by the determina- 
tion of the War Department. It iuA-oh'es no diversion from streams other than 
the Ware and Swift. Massachusetts declares that she intends to and must obey 
these findings of the War Department. Her statements before the master and here 
clearly negative anv threat, intention or purpose to make any diversion of water in 
excess of that specified or otherwise than as set forth in the determinations of the 
War Department. Injunction issues to prevent existing or presently threatened 
injuries. One will not be granted against something mereh^ feared as liable to occur 
at some indefinite time in the future. (Cases cited.) 

"Connecticut's bill of complaint will be dismissed without prejudice to her right 
to maintain a suit against Massachusetts whenever it shall appear that substantial 
interests of Connecticut are being injured through a material increase of the amount 
of the waters of the Ware and Swift diverted by or under the authority of ^Nlassa- 
chu.setts over and above the tiuantities authorized by the Acts of 1926 and 1927 as 
heretofore limited by the War Department." 

If the Secretary of W^ar had not expressly prohibited the proposed diversion, 
then the Commission might now make a finding that the diversion would result 
in no interference ^vith navigation and then proceed to make the diversion. Even 
then, of course, if the Secretary should disagree with such a finding, the Attorney 
General of the United States might bring suit against Massachusetts to enjoin' an 
unauthorized diversion. Sanitary District v. United States, 266 U. S. 405, 426; 
33 U. S. C. A. § 406 (Mar. 3, 1899, c. 425, § 12, 30 Stat. 1151, as amended). A 
finding of the Secretary of War that a diversion affected navigability would be 
given great weight by the courts. Miami Beach Jockey Club v. Dern, 83 F. (2d) 
715, 719, supplemented by 86 F. (2d) 135, cert. den. 299 U. S. 556. But the Sec- 
retary of War has expressly prohibited the diversion, and a violation by the Com- 
mission of an outstanding prohibition of the Secretary would of itself be ground 
for a suit by the Attorney General of the United States for an injunction. 

Even if the Secretary of War should authorize the proposed diversion because 
he believes it does not interfere with navigation or does not interfere with it un- 
reasonably, still Massachusetts might be liable to be enjoined at the suit of Con- 
necticut if Connecticut can prove that "any real or substantial injury or damage 
will presently result" to her. (See Connecticut v. Massachusetts, 282 U. S. 660, 
672; A'e/r )'ork v. Illinois, 274 U. S. 488, 489), or that the diversion does inter- 
fere unreasonably with the navigable capacity of a river. Wisconsin v. Illinois, 
278 U. S. 367, 420. 

The releases delivered to the Commission by mill owners below the point of 
diversion, in consideration for money paid to them by the Connnonwealth for the 
release of claims for damages, "past, present and future''', which they might have 
as a result of the taking of the waters of the Ware River, were expressly limited 
to the terms and conditions of the taking. The order of taking included the pro- 
vision, "Any diversion made under this taking shall comply with such regulations 
and decisions as may from time to time be made with respect thereto by the Sec- 
retary of War acting under authority of the Act of Congress of March 3, 1S99, 



128 P.D. 12. 

Chapter 425, Section 10, 30 Statutes-At-Large 1151." Any diversion now made 
against the prohibition of the Secretary of War might render the Commonwealth 
liable to further suits by these mill owners for damages caused them by such 
diversions. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Department of Public Works — Sidewalk — Town — Authority of Selectmen. 

Aug. 27, 1942. 
Hon. Herman A. MacDonald, Conwiissioner of Public Works. 

Dear Sir : — In a recent letter you requested my opinion as to whether the 
Town of West Newbury can be compelled to maintain a sidewalk on a State high- 
way in that town. 

I answer your question in the negative. 

You state that the sidewalk was constructed by the Department of Public Works 
in 1935, pursuant to the authority of G. L. (Ter. Ed.) c. 81, § 20, after the Depart- 
ment had received a written statement signed by the selectmen of the town as 
follows : 

"This is to certify that, if the Department of PubUc Works will construct one 
or more sidewalks on the State highway in this town, the town will assume the 
responsibility for maintenance and removal of snow on said sidewalks." 

There was no vote of the town authorizing the selectmen to sign this agreement. 
You also state that the sidewalk is located on a road which was laid out as a State 
highway in 1905, at which time no land was taken in fee. 

I infer from the facts set forth by you that the sidewalk was originally con- 
structed by the Department in 1935 Avithin the limits of the 1905 State highway 
layout and that it was not the rebuilding or replacing of a sidewalk existing prior 
to 1905. 

In an opinion to a former Commissioner of Public Works, dated September 10, 
1938, the then Attorney General held that where the construction work done by the 
Department was within the area where sidewalks previously existed and where no 
taking was made by the Department the town in which the sidewalks were con- 
structed was obliged, even in the absence of agreement, to maintain the sidewalks. 
Attorney General's Report, 1938, p. 108. 

Such a result cannot be reached on the facts set forth in your letter because the 
construction of the sidewalk in question was not the reconstruction or replacement 
of a town sidewalk, which was in existence prior to the 1905 layout, but was an 
original undertaking by the Department pursuant to statutory authority and within 
the limits of an existing State highway layout. 

Nor can it be said that the written statement signed by the selectmen agreeing 
on behalf of the town to maintain the sidewalk binds the town to do so. 

Persons dealing with the selectmen of a town are charged with notice of the scope 
of their authority and are bound at their peril to ascertain the limits thereof. 
Meader v. West Newbury, 256 Mass. 37, 39. 

The authority of the selectmen of a town is of a special and limited nature. 

"The}' are not general agents. They are not clothed with the general powers of 
the corporate body for which they act. They can only exercise such powers and 



P.D. 12. 129 

perform such duties as are necessarily and properly incident to the special and 
limited authority conferred on them by their office. They are special agents, em- 
powered to do only such acts as are required to meet the exigencies of ordinary 
town business." Smith v. Cheshire, 13 Gray, 318. 

The agreement made by the selectmen was one that would impose upon the town 
the obligation to appropriate and expend money for the maintenance of the side- 
walk and removal of snow therefrom. 

The agreement, having been entered into without either tlie authority of a vote 
of the town or special statutory provision, was beyond the power of the selectmen 
and not binding upon the town. Wood v. Concord, 268 Mass. 185, 188. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Board of Registration in Embalming — Funeral Directing — Advertisements. 

Sept. 24, 1942. 
Mrs. Hazel G. Olix En, Director of Registration. 

Dear Madam : — You have written me on behalf of the Board of Registration 
in Embalming and Funeral Directing, requesting my opinion as to whether or not, 
under the law, the names of persons not registered as funeral directors can be used 
on signs and advertising of funeral directing firms or corporations. 

In my opinion, the names of such persons may be used on signs and advertising 
of funeral directing firms or corporations, provided such signs and advertising are 
not so worded as to hold out as a funeral director any person who is in fact not 
registered as such. 

Under the provisions of G. L. (Ter. Ed.) c. 112, § 83, corporations or partnerships 
may not be registered as funeral directors. Such registration is available only to 
individuals. 

The only provision of law pertinent to the use of names of unregistered persons 
on signs and advertising of funeral directing firms or corporations is G. L. (Ter. Ed.) 
c. 112, § 87, as most recently amended by St. 1939, c. 160, § 2, the applicable pro- 
visions of which are as follows : 

■' . . . whoever, not being registered as a funeral director under . . . section 
eighty-three and licensed as a funeral director under section forty-nine of chapter 
one hundred and fourteen, shall engage in the business of funeral directing, or shall 
hold himself out as su('h, shall ... be punished . . . ; but sections eighty-two to 
eighty-seven, inclusive, shall not . . . prohibit a corporation or partnership, if 
not engaged in any other business, from engaging in the business of funeral direct- 
ing, if a duly registered and licensed funeral director is in charge of the business of 
said corporation or partnership." 

While .this section prohibits persons not registered as funeral directors from 
engaging in the business of funeral directing or holding themselves out as funeral 
directors, it does permit corporations or partnerships not engaged in any other 
business to engage in said business if a duly registered and licensed funeral director 
is in chai'ge thereof. 

Such a corporation or partnership, as necessarily incident to its authority to 
engage in said business, may use its corporate or partnership name on signs and 
advertising, subject to the limitation stated above, that no unregistered person may 



130 P.D. 12. 

hold himself out by such signs and advertising as a funeral director. Whether an j 
unregistered person does so hold himself out by the use of any particular sign or I 
advertising is a question of fact to be determined in each case. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Water Supply — City of Lowell — Water Department. 

Sept. 25, 1942. 
Dr. Alton S. Pope, Deputy Commissioner of Public Health. 

Dear Sir : — You have informed me that a water supply emergency exists in 
the City of Lowell owing to an increased demand for water consumption due, as 
I am advised, to an influx of persons employed in industries essential to the suc- 
cessful conduct of the war, and that the most appropriate source of additional 
supply for immediate development is in the Town of Chelmsford. 

You have asked my opinion as to the authority of the Water Department of 
Lowell to develop a water supply from the ground in Chelmsford and to acquire 
land in such town, by eminent domain or purchase, for the purposes of such de- 
velopment and the construction of the necessary works for collecting and pump- 
ing water from such supply to the distributing plant of Lowell in order to meet 
the present emergency. 

I am also informed that the City of Lowell does not Uvse the metropolitan water 
supply. 

I am of the opinion that the provisions of G.L. (Ter. Ed.) c. 40, § 40, as amended, 
authorize the City Council of Lowell, during an emergency, to take by eminent 
domain or acquire by purchase the right to draw water from ground sources in 
the Town of Chelmsford, not already appropriated to another public water sup- 
ply, for a period of not more than six months in any year in quantities necessary 
to relieve the emergency, after the State Department of Public Health has ap- 
proved such water as a proper source of supply. The City Council is also author- 
ized by said section 40 to take by eminent domain the right to use any land for 
the time necessary to use such water. 

The applicable portions of said G. L. (Ter. Ed.) c. 40, § 40, read: 

"The metropolitan district commission in cities or towns using the metropolitan 
water supply, the city council in other cities, ... in cases of emergency, may, on 
behalf of their respective bodies pohtic or corporate, take by eminent domain under 
chapter seventy-nine the right to draw water from anj'^ stream, pond or reservoir 
or from ground sources of supply by means of driven, artesian or other wells not 
already appropriated to uses of a municipal or other public water supply, ... for 
a period of not more than six months in any year in quantities necessary to relieve 
the emergency; but no such taking or purchase shall be made until after the de- 
partment of public health has approved the water as a proper source of water supply 
. . . The proper authority as aforesaid may also take by eminent domain under 
said chapter seventy-nine the right to use any land for the time necessary' to use such 
water; . . . The vote of a city council ... to make or authorize such taking or 
purchase as aforesaid shall be conclusive evidence of the existence of the emer- 
gency. ..." 

The authority to make takings or to purchase rights to draw water for the 
period and in the quantities mentioned in the foregoing statute from sources out- 
side a city not using the metropolitan water supply is vested not in its water de- 



P.D. 12. 131 

partment but in its city council, and the right to take the use of land necessary 
to the utilization of such water is likewise vested in the city council. 

If such authority is exercised by the City Council of Lowell, erection, mainte- 
nance and operation of the works necessary for obtaining and transmitting the 
water to Lowell may properly be carried on by that body to which by the terms 
of its present charter, is entrusted the supervision of the city's water supply. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Department of Public Health — County and Municipal Tuberculosis Hospitals — 

Licenses. 

Oct. 2, 1942. 
Dr. Alton S. Pope, Deputy Commissioner of Public Health. 

Dear Sir : — You have asked my opinion as to whether county and municipal 
tuberculosis hospitals are required to be licensed by the Department of Public 
Health under the provisions of St. 1941, c. 661. 

I am of the opinion that such institutions as are required by specific provisions 
of law to be maintained by designated public officials are not required to be so 
licensed. 

St. 1941, c. 661, amended G. L. (Ter. Ed.) c. Ill, by striking out sections 71 
to 73, inclusive, and adding new sections in their places. 

The new section 71 provides that the said department shall issue a license, sub- 
ject to revocation by it, for cause, "to any person whom it deems suitable and 
responsible to establish or maintain a hospital or sanatorium which meets the 
requirements of the (said) department" and that "the fee for the issue or renewal 
of each license shall be ten dollars" per year. 

The new sections 72, 72A and 73 vest authority in said department to make 
rules and regulations for the conduct of such hospitals and sanatoria and for the 
appointment of an advisory committee to visit these institutions and advise the 
department with regard to them. 

The new section 73 provides a penalty for the establishment or maintenance of 
a hospital or sanatorium without a license. 

Counties, through their county commissioners, the mayors of Chelsea and Re- 
vere, and the selectmen of Winthrop, aYe specifically authorized by said G. L. 
(Ter. Ed.) c. Ill, §§ 81 to 90, as amended, to estabhsh and maintain tuberculosis 
hospitals and preventoria or sanatoria, \\ith the approval of the Department of 
Public Health, for the purpose of serving designated districts. 

In so establishing and maintaining these institutions the counties and the au- 
thorized officials act as agencies of the Commonwealth, and, in establishing the 
institutions, do so with the approval of the Department of Public Health. 

The amendments made in said chapter 111 by St. 1941, c. 661, are to be so con- 
strued as to be in harmony with the other provisions of chapter 111. It is a gen- 
eral principle of statutory construction that provisions for licensing of businesses 
or activities are not to be construed as binding upon the Commonwealth or its 
agencies unless specific terms of an act require that such a meaning be given. 
Teasdale v. Sewell, dec. Const. Co., 192 Mass. 440. II Op. Atty. Gen. 399. The 
instant statute is to be so construed and, thus read, does not show a legislative 
intent to embrace within its scope those county tuberculosis hospitals and sana- 



132 P.D. 12. 

toria, the establishment and maintenance of which are specifically authorized by 
the provisions of said G. L. (Ter. Ed.) c. Ill, §§ 81 to 90, as amended. 

As originally introduced in the Legislature, House Bill No. 1232, upon which 
said chapter 661 was based, defined "hospital" or "sanatorium," as used therein, as 

"any institution, whether conducted for charity or for profit, which is adA-^ertised, 
announced or maintained for the express or implied purpose of caring for persons 
admitted thereto for purposes of diagnosis, or medical or surgical treatment which 
is rendered within said institution, except an institution caring exclusively for 
cases of mental diseases and licensed by the department of mental health." 

The measure was reported out of the Committee on Public Health as House Bill 
No. 2528 and at that stage contained the following sentence after the definition 
above set forth: 

"With respect to municipal and county hospitals and sanatoria, the provisions 
of this section and sections seventy-two to sevent3'^-three, inclusive, shall apply 
only to the maternitj' wards or sections thereof used for the reception, care and 
treatment of women during pregnancy, delivery, or while recovering from delivery." 

The House of Representatives itself, pending the question of ordering House 
Bill No. 2528 to a third reading, struck out the above sentence inserted by the 
Committee on Public Health, and the bill was enacted in its present form without 
such sentence. 

These actions of the Committee and of the House do not indicate an intention 
that the measure should require the licensing of those tuberculosis hospitals and 
sanatoria whose establishment and maintenance were specifically authorized by 
said sections 81 to 90 of chapter 111, as amended. 

Although municipalities have a general power to establish and maintain tuber- 
culosis hospitals, they are not specifically authorized so to do by legislative en- 
actment, and in establishing them approval by the Department of Public Health 
would not be a prerequisite. 

I am of the opinion that the municipalities which establish and maintain tuber- 
culosis hospitals and sanatoria cannot be said in so doing to be acting as agencies 
of the Commonwealth, and that, consequently, the provisions of said new section 
73 of chapter 111, with respect to the requirement of a license and a fee therefor, 
are to be construed as applicable to them. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



Constitutional Law — Anti-Aid Amendment. 

Oct. 5, 1942. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir: — You have asked my opinion as to whether the provisions of Amend- 
ment XLVI to the Constitution of Massachusetts, commonly known as the Anti- 
Aid Amendment, prohibit the Division of Child Guardianship in your department 
from paying denominational institutions for actual services rendered to children 
in the care or custody of the department, who are ill or in such other circumstances 
as prevent their care in private families. 



P.D. 12. 133 

I am of the opinion that the provisions of Amendment XLVI do not prohibit the 
making of payments to denominational institutions for necessary services such as 
you have described, which are actually furnished by said institutions and could not 
be rendered by private families. 

Amendment XLVI forbids the grant, appropriation or use of public money by 
the Commonwealth or any of its political subdivisions for the purpose of "founding, 
maintaining or aiding . . . any . . . infirmary, hospital, institution, or educa- 
tional, charitable or religious undertaking which is not publicly owned and under 
the exclusive control, order and superintendence of public officers or public agents 
authorized by the commonwealth or federal authority or both, ..." 

Payments for services actually rendered for the benefit of the Commonwealth 
for necessary care of children in the custody or supervision of the Department of 
Public Welfare, even if made to a hospital, institution or other undertaking de- 
scribed in the amendment are not, in my opinion, within the prohibition of the 
amendment. 

In other words, the terms of the amendment forbidding the use of public money 
for the purpose of "founding, maintaining or aiding" institutions referred to therein 
do not prevent pajnuents by the Commonwealth which are based on fair and ade- 
quate consideration. 

Following the long continued practice of my predecessors in the office of Attorney 
General, I must respectfully decline to answer your further question because it is 
hypothetical in nature and involves a consideration of the possible exercise of 
authority by the Governor. 

Very trulj-^ yours, 

Robert T. Bushnell, Attorney General. 

DepartmeiH of Public Welfare — Assistance to Aged Pei'sons — Rides — "Family 

Group." 

Oct. 5, 1942. 
Hon. Arthur G. Rotch. Commissioner of Public Welfare. 

Dear Sir: — You have informed me that the Department of Public Welfare, 
acting pursuant to the provisions of G. L. (Ter. Ed.) c. 118A, § 1, as amended 
by St. 1941, c. 729, has ruled that "a family group is defined as three or more per- 
sons related by blood or marriage living in one household under one head or man- 
ager. A person also will be considered living in a family group who resides with 
two or more other persons not related by blood or marriage forming one household 
when the relationship between the members of the household is of long standing 
and is based on ties of affection and is not a mere relationship based on convenience 
and economy." You have requested my opinion whether this determination as to 
what constitutes a family group is within the scope of said statute. 

In my opinion, this determination is within the scope of the statute. 

G. L. (Ter. Ed.) c. 118A, § 1, as amended by St. 1941, c. 729, § 1, provides for 
the granting of assistance to aged persons. It specifies the minimum rates at which 
such assistance shall be given: In case the individual or individuals live within a 
"family group," a certain minimum sum per month; and in case such individual 
or individuals live outside a "family group," a somewhat larger minimum sum per 
month. The section then provides: "The determination as to what constitutes a 
family group under the provisions of this section shall be made in accordance with 



134 P.D. 12. 

rules and regulations established by the department, authority to establish the 
same being hereby granted." 

The Department, acting under an express rule-making power, has made a reason- 
able rule, entirely consistent with the provisions of the enabling act. The rule is, 
therefore, within the scope of the statute. This rule of the Department, determin- 
ing that a family group consists of at least three persons, does not react to the detri- 
ment of two aged persons, such as husband and wife, who live alone and are eligible 
for assistance, but rather inures to their benefit, for under this rule such aged per- 
sons are entitled to greater assistance than that to which they would be entitled 
if the Department had determined that a family group consisted of two or more 
persons. 

You have also requested my opinion as to whether G. L. (Ter. Ed.) c. 118A, § 1, 
as amended, precludes or prevents the Department from ruling that "three or more 
brothers, sisters, or brothers and sisters, all of whom are eligible and are living under 
one roof with one as the head or manager of the family constitute a family group." 

In my opinion, this proposed ruling is no more than an application of the above 
general rule to a particular group of persons, and, therefore, for the reason above 
stated, is permitted by the statute. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Settlement — Executive Order No. 32. 

Oct. 7, 1942. 
Hon. Arthur G. Rotch, Commissioner of Public Welfare. 

Dear Sir: — You have informed me that a certain man was inducted into the 
Federal service on January 16, 1941, and was honorably discharged therefrom on 
February 28, 1941. You have stated that this man was in receipt of public assist- 
ance from March to June, 1942, and was unsettled during that period. 

You have asked me as to whether Executive Order No. 32, issued by the Gover- 
nor on August 20, 1942, with relation to the settlement of persons who serve in the 
military or naval forces of the United States in the present war, was "retroactive 
in its scope so as to affect the settlement of this person." 

Executive Order No. 32, in its applicable parts, reads: 

"Any person who serves as a member of the military or naval forces of the United 
States at any time during the present war, which for the purpose of this order shall 
be deemed lo have begun September 16, 1940, whether said person enters said 
forces by enhstment, induction pursuant to the provisions of Selective Training 
and Service Act of 1940, or otherwise, and his wife, or widow and minor children 
shall be deemed to have a settlement in the place where he actually resides or re- 
sided at the time of his induction, enlistment or entry into such service." 

By its terms the foregoing order was effective to give to a person who had entered 
the service of the United States military or naval forces at any time after Septem- 
ber 16, 1940, and up to August 20, 1942, the date of the said Executive Order, a 
settlement as of said date at the place where he actually resided on the date of his 
enlistment or induction. Enactments concerning settlements are not ordinarily 
construed as retroactive in the sense of estabUshing or changing acquired settle- 
ments as of a time prior to the date of the enactment. Commomcealth v. Inhabitants 
of Sudbunj, 106 Mass. 268. 



P.D. 12. 135 

In other words, on and after August 20, 1942, by force of the Executive Order, 
the person in question could no longer be deemed to be "unsettled" but would, 
as of that date, have a settlement in the place in which he resided at the time of his 
induction, enlistment or entrance into the militaiy forces of the United States. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Elections — Absentee Voting — Federal Statute. 

Oct. 23, 1942. 
Hon. Frederic W. Cook, Secretary of the Commonwealth. 

Dear Sir : — I am in receipt of your letter relative to an Act of the 77th Con- 
gress, 2d Session, Public Law 712, chapter 561, approved September 16, 1942, 
entitled: "An Act to provide a method of voting, in time of war, by members of 
the land and naval forces absent from the place of their residence." 

You state that "in several respects" the provisions of this act "are in conflict 
with our election laws" which impose penalties upon election officials for failure 
to comply with their terms, and you inform me that these officials are apprehensive 
as to the consequences which might result from their compliance with those man- 
dates of the Act of Congress which are inconsistent with the statutes of the Com- 
monwealth concerning the conduct of elections in Massachusetts. 

I assume that such apprehension as may exist results from suggestions which 
may have been made that possible arguments to the effect that the Act of Congress 
is unconstitutional may at some time be made the basis of litigation, which might 
result in some portion or all of the act being declared unconstitutional by a court 
of last resort. 

The purpose of the Act of Congress is a patriotic one, intended to make avail- 
able to the members of the land and naval forces of the United States, who are 
called away from their home states to serve their country in war, the right to vote 
for United States Senators and Representatives and presidential electors by ab- 
sentee ballots in such states. It also makes provision for voting for state and local 
officers when a state has itself authorized it. 

At the present time only those provisions of the act which deal with voting for 
United States Senators and Representatives are compelling upon the election 
officials, and I confine myself at the moment to a consideration of such provisions, 
excluding from the scope of this letter all reference to presidential elections. 

I see no cause for concern by election officials if they comply with the terms of 
the Act of Congress even when such terms are in some particulars in opposition to 
the provisions of the statutes of the Commonwealth governing elections. 

The Act of Congress was duly enacted.. It is the law of the land. There is to be 
a presumption as to its constitutionality by all public officials, — executive, ad- 
ministrative and judicial. It is not to be treated by such officials as unconstitu- 
tional in the absence of a decision to that effect by a court of last resort. 

In .so far as the act conflicts with the provisions of our state statutes it supersedes 
them, and election officials are bound to follow the mandates of the act in regard 
to the election of United States Senators and Representatives. 

It is a generally recognized principle of law that every presumption is to be in- 
dulged in favor of the validity of an enactment of a legislative body which is not 
manifestly in excess of legislative power. Hones Bros. Co. v. Unemployment 



136 P.D. 12. 

Comp. Comm., 296 Mass. 275, 284; Perkins v. Westwood, 226 Mass. 26S, 271; 
Lowell Co-op. Bank v. Co-operative Central Bank, 287 Mass. 338, 343. 

In view of the purpose of this act and the circumstances of its passage in time 
of war, it cannot reasonably be asserted that it is manifestly in excess of the legis- 
lative power of Congress. Such questions as may be raised with relation to its 
constitutionality cannot be answered with certainty until the Supreme Court of 
the United States has pronounced upon them, but in view of the presumption of 
validity which prevails in favor of an enactment of the Congress, officials of the 
Commonwealth should at the present time be governed in their actions concern- 
ing elections by this Congressional act. No official of the Commonwealth before 
a pronouncement by the Supreme Court of the United States should refuse to obey 
this Act of Congress in reliance upon his own views of its unconstitutionality, 
setting his judgment of the authority of the supreme legislative body of the nation 
against that of the considered judgment of the Congress itself. 

The duty of the election officials of Massachusetts to comply with the terms 
of the Act of Congress at the present time is so plain that such officials need feel 
no apprehension as to criminal prosecution against them for a violation of our state 
law made necessary by such compliance, even if the act should ultimately be 
determined to be unconstitutional by the Supreme Court. 

Although the decisions of various courts throughout the United States are not 
altogether in agreement, it would seem that correct principles of law mil not hold 
officials criminally liable for acts done contrary to state law but in compliance 
with an existing Act of Congress, even should the latter be subsequently deter- 
mined to be unconstitutional. 

As was said in an opinion of the Supreme Court of North Carolina (State v. 
Godwin, 123 N. C. 697 (1898)) in relation to such suggested criminal liability: 

"The criminal law cannot be invoked to punish one who acts as a public officer 
— as an agent of the people — and who in the discharge of a public duty had obeyed 
an Act of the law-making power even though the law be unconstitutional, unless 
the Act itself had required the committal of a crime — a thought which could not 
be entertained for a moment. . . . Until the subsequent statute was declared to be 
unconstitutional by competent authority, the defendants, under every idea of 
justice and under our theory of government had a right to presume that the law- 
making power had acted within the bounds of the Constitution, and their highest 
duty was to obe}'." 

And as was said by the court in Cudahi/ Pnckinq Co. v. Harrison, 18 F. Supp. 
250, 254: 

"Plaintiff invokes the generality, 'An unconstitutional law is no law.' It is 
sufficient to say that the general language invoked cannot be applied to work a 
hardship upon a public officer who, in the performance of his duty, has acted in 
good faith, in reliance upon the validity of a statute and before any court has found 
that the statute is invalid." 

Furthermore, if any court or any official under a mistaken view of its or his 
duty should entertain or begin a criminal proceeding against an election official 
who has acted in compliance with the provisions of the Act of Congress, the Attor- 
ney General of the Commonwealth will immediately exercise his authority to 
terminate such a proceeding. 

Let me reiterate and ainjjlify the foregoing statement. If any election official 



P.D. 12. 137 

in this Commonwealth is prosecuted for failure to perform an act required of him 
by our state laws which he is prevented from performing by his compliance with 
the Act of Congress or for performing some action required by the act but pro- 
hibited by our state law, such prosecution will be at once stopped by the Attorney 
General in the exercise of the power which is vested in him. 

This being so, no election official has cause for apprehension of criminal prose- 
cution in the event that he complies with the provisions of the Act of Congress. 
Your letter relates to apprehension of officials concerning criminal prosecutions or 
penalties. Other considerations relative to a conceivable civil liability need not 
be considered by me at this time. To do so would merely serve to complicate 
the issue raised by j^our letter, which should be kept as simple as possible. 

The Act which Congress has passed for the benefit of the members of the land 
and naval forces of the United States, being a measure deemed by that body to 
by conducive to the preserving of their rights, is, Hke all acts of that body, a part 
of the supreme law of the land, is to be presumed to be within the constitutional 
law-making power of Congress, and is to be complied with by all officials whose 
duties it prescribes. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Lowell Textile Institute — Instructors — Reinstatement After Military Service — 

Statutes. 

Oct. 23, 1942. 
Hon. Walter F. Downey, Commissioner of Education. 

Dear Sir : — You have requested my opinion as to the status of two men who 
served as instructors at the Lowell Textile Institute from September 1, 1938, 
until June 26, 1942. The circumstances under which their services terminated, 
as given to me, are set forth below. Claims have been made by these men that 
some or all of the following State and Federal enactments grant them rights to 
reinstatement. 

A. Massachusetts Acts of 1941, c. 708. 

B. Federal Soldiers' and Sailors' Civil Relief Act of 1940. 

C. Federal Selective Training and Service Act of 1940. 

D. Public Resolution No. 96, 76th Congress, approved August 27, 1940. 

You desire the opinion of the Attorney General as to the effect of these state and 
federal statutes upon the status of these two men in order that the trustees of 
the school may be enabled to offer employment to new instructors on a definite 
basis. 

In my opinion, under the circumstances set forth, the trustees of the school may 
proceed upon the assumption that the statutes cited confer no rights to re-employ- 
ment or reinstatement upon these men. 
The statement of facts submitted to me discloses the follo\ving: 
The Trustees of the Lowell Textile Institute at a meeting held April 30, 1942, 
unanimously voted to terminate the services of these two instructors as of June 
30, 1942. Action of the trustees was based upon evidence of incompetence and 
other evidence submitted to them by the president of the school. The men were 
notified of the above-mentioned vote of the trustees on May 29, 1942. Nearly a 



138 P.D. 12. 

month later, or four days prior to the date they knew their employment was to 
terminate, to wit, on June 26, 1942, the men tendered their resignations to the 
trustees to take effect immediately, "for the purpose of serving in the military 
forces of the United States," and at the same time informed the trustees of their 
intention to invoke the State and Federal statutes cited above, "to protect their 
rights as employees of the Lowell Textile Institute." One of the men joined the 
military forces subsequent to June 30, 1942. The other is believed to be still in 
civilian life. 

Before considering the relation or nonrelation of the specific statutes cited to 
the status of these men, it should be noted that the Trustees of the Lowell Textile 
Institute, who, on April 30, 1942, unanimously passed the vote terminating the 
services of these men as of June 30, 1942, are a board of seventeen public officers 
serving in the Department of Education and entrusted with the duty of directing 
and maintaining this school for the Commonwealth. G. L. (Ter. Ed.) c. 15, §§ 19, 
24; c. 74, § 47; Gen. St. 1918, c. 274, § 2; St. 1895, c. 475, § 1 ; Pub. Sts., c. 115, § 5. 
There are no statutes limiting their power to appoint or discharge instructors in 
the school. Their vote effectively terminated the employment of the two men as 
of June 30, 1942. 

The men discharged were employees of the Commonwealth. G. L. (Ter. Ed.) 
c. 74, § 47; St. 1941, c. 419, § 2, item 1332-00; III Op. Atty. Gen., 222. Their 
positions, however, were not classified under chapter 31 of the General Laws, nor 
were they appointed, upon the facts submitted to me, for any fixed terms. 

Taking the statutes clairiied to effect their status in the order in which I have 
cited them above in the first paragraph of this opinion, I have the following com- 
ments to make: 

Sections 1 to 5 of chapter 708 of the Acts of 1941 provide for the re-employment 
in their former positions of employees of the Commonwealth or any political sub- 
division thereof whose positions are subject to chapter 31 of the General Laws. 
Sections 1 and 6 provide for the re-employment of those employees of the Com- 
monwealth or any political subdivision thereof whose positions are not subject to 
chapter 31. Section 15 was enacted as an aid to those who were given protection 
under the Federal acts enumerated therein. It does not apply to State employees. 

Sections 1 and 6 provide: 

"Section 1. Any person who, on or after January first, nineteen hundred and 
forty, shall have tendered his resignation from an office or position in the service 
of the commonwealth, or any political subdivision thereof, or otherwise terminated 
such service, for the purpose of serving in the military' or naval forces of the United 
States and who does or did so serv^e or was or shall be rejected for such service, shall, 
except as hereinafter pro\'ided, be deemed to be or to have been on leave of absence; 
and no such person shall be deemed to have resigned from his office in the service 
of the commonwealth, or any political subdivision thereof, or to have terminated 
such service, until the expiration of one year from the termination of said militarj'' 
or naval service by him." 

"Section 6. Any person referred to in section one who was or shall be sepa- 
rated from the service of the commonwealth or any political subdivision thereof 
while holding an office or position not subject to chapter thirty-one of the General 
Laws, shall, if he so requests in writing to the appointing authority within one year 
after the termination of his said military or naval ser^dce, be reinstated or re- 
employed in said office or position; provided, that, in case he was appointed for a 
fixed term, the term has not expired; ..." 



P.D. 12. 139 

If the men resigned from their positions "for the purpose of serving in the mili- 
tary or naval forces of the United States" and do serve, or are rejected for such 
service, within the meaning of section 1 of chapter 708, then, since their resigna- 
tions became effective before the date of the termination of their service, as voted 
by the trustees, they were "separated from the ser\-ice of the commonwealth . . . 
while holding an office or position not subject to chapter thirty-one of the General 
Laws," within the meaning of section 6 of chapter 708. But at the time of their 
resignations they were in the positions of persons appointed for a fixed term and, 
under section 6, they had rights to reinstatement only so long as that term had 
not expired. That term expired on June 30th. 

The Soldiers' and Sailors' Civil Relief Act, cited by the removed employees in 
support of their claim of a right to reinstatement, does not deal with the re-em- 
ployment of service men. It suspends the enforcement of certain civil liabilities 
of persons in the military or naval service while they are absent in such service. 

The Selective Training and Service Act, § 8 (6), gives job protection to cer- 
tain classes of employees inducted in the military forces under that Act, and Pub- 
lic Resolution No. 96, § 3 (6), in identical words, gives the same protection to the 
same classes of employees which as members of "any reserve component of the land 
or naval forces" are called to active duty. The classes of employees which these 
acts direct shall be restored to their former positions "or to a position of like 
seniority, status, and pay" are employees of the United States and employees of 
private employers, but not State employees. As to State employees, the acts 
say, "It is hereby declared to be the sense of the Congress that such person should 
be restored." There is no mandate. The Federal acts do not, therefore, give the 
men any rights to re-employment. 

Also, if it can be proved that they tendered their resignations not for the pur- 
pose of serving in the military or naval forces, but for the purpose of circumvent- 
ing the effect of their discharge, then clearly they have no rights to reinstatement. 
Neither the Massachusetts statute nor the Federal statutes were intended as a 
refuge for employees properly discharged from their positions prior to their resig- 
nations. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Department of Mental Health — Transfer of Feeble-minded Persons in State Schools. 

Nov. 5, 1942. 
Dr. Clifton T. Perkins, Commissioner of Mental Health. 

Dear Sir: — You have asked my opinion as to the authority of the Depart- 
ment of Mental Health to transfer feeble-minded persons from one of the State's 
schools for the feeble-minded to another. 

Such schools are institutions under the general supervision of the department 
(G. L. (Ter. Ed.) c. 123, §§ 3, 25, 45) and the department has general authority 
to transfer inmates of its institutions from one to another when to do so promotes 
efficiency in the care and management of such inmates (G. L. (Ter. Ed.) c. 123, 
§ 20). This general authority is, however, limited in respect to persons who have 
been admitted to such schools by application from their parent or guardian under 
the terms of G. L. (Ter. Ed.) c. 123, § 47. Persons of this class are referred to in 
your letter as "voluntary" inmates. Section 21 of said chapter 123 contains in 



140 P.D. 12. 

its last clause a prohibition against the transfer from one institution to another of 
"any voluntary inmate of any institution, except with his written consent." 

The major portion of section 21 deals with a limited mode of transferring pa- 
tients to or from private institutions but its last clause, to which I have referred, 
was added to similar provisions concerning patients in private institutions, em- 
bodied in earlier statutes from which this section stems, by St. 1909, c. 504, § 70, 
which prescribes that the department shall not transfer patients of private insti- 
tutions except under certain stated conditions, "nor transfer any voluntary inmate 
of any institution, pubUc or private, except with his written consent." 

Accordingly, it follows that the department may not transfer a "voluntary" 
inmate from one State school to another except with his written consent. A 
feeble-minded person's "written consent" to a transfer should be given by the 
duly appointed guardian of his person or by his natural guardian, if no guardian 
has been appointed by the court. 

With regard to a feeble-minded person who has been committed to a State school 
by a judge of probate under G. L. (Ter. Ed.) c. 123, § 66, no such limitation upon 
the authority of the department to transfer inmates from one institution or State 
school to another is set up by the Legislature, and they may be so transferred in 
proper instances. 

The proper mode of effecting such a transfer is set forth in section 66, however, 
and should be observed in transferring a feeble-minded person from one State 
school to another. This mode is carried out by the department withdrawing the 
feeble-minded person from the custody of the particular State school to which he 
was committed to its own custody or supervision, and thereafter transferring him 
from its own custody or supervision to another school for the feeble-minded, in 
accordance with the provisions of chapter 123, section 66A, governing the care of 
feeble-minded persons who have been committed by a judge of probate directly 
to custody or supervision of the department itself and not to a State school. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

State Examiners of Electricians — Oral and Written Examinations of Applicants 

for Licenses. 

Nov. 5, 1942. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — You have requested my opinion upon two questions of law 
in relation to examinations of the State Examiners of Electricians which were 
embodied in a letter by such examiners to you and which are as follows : 

(1) "Does G. L. (Ter. Ed.) c. 141 authorize the State Examiners of Electricians 
to give oral examinations to applicants for master and journeyman electricians' 
Mcenses?" 

I answer the first question in the negative. The applicable portion of G. L. 
(Ter. Ed.) c. 141, § 2, with regard to the duties of the Examiners of Electricians, 
provides: 

"... examinations shall be sufficiently frequent to give ample opportunity for 
all applicants to be thoroughly and carefully examined, may be written or in prac- 
tical work, and may be supervised by one or more of the examiners, ..." 



P.D. 12. 141 

I am of the opinion that the legislative intent as expressed in the whole context 
of the section and in the quoted provisions was to establish examinations which 
were not to be oral but were to be written examinations or examinations in the 
actual performance of types of work connected in some degree with the occupation 
of an electrician. 

The word "may" as used in the phrase "examinations . . . may be written or 
in practical work," appears to have been employed with the meaning of "shall." 
Such use is not uncommon in statutes. Attleboro Trust Co. v. Commissioner of 
Corporations, 257 Mass. 43, 51; Commonwealth v. Mekelburg, 235 Mass. 383, 384. 
It is to be noted as significant that in a similar manner the Legislature appears to 
have adopted this usage of the word "may" in the next following phrase of sec- 
tion 2 "and may be super\'ised by one or more of the examiners." Equally in both 
of these phrases it clearly appears that the Legislature was pronouncing a mandate, 
not leaving action to the vagaries or discretion of the officials concerned, but re- 
quiring them to supervise the examinations and requiring them to give only 
written examinations or examinations in ability to perform electrical work. 

I am confirmed in this view by the fact that with relation to examinations to be 
given by other state boards to test the fitness of applicants for registration or li- 
censes to practice other trades or professions, the Legislature has, when it thought 
best to leave the form of examination, whether oral or written, to the discretion of 
an examining board, employed simple phrases to vest such discretionary power in 
the particular officials and has not qualified those phrases by provisions concerning 
the character of the examination, as in the wording of the section now under con- 
sideration. Examples of this legislative mode of vesting unlimited discretionary 
authority, with relation to the type of examination which might be given, are to 
be found in the wording of G. L. (Ter. Ed.) c. 112, § 55, with regard to those desiring 
to become veterinarians, "an applicant . . . shall be examined"; G. L. (Ter. 
Ed.) c. 112, § 68, optomietrists, "an examination conducted by the board in theo- 
retic, practical and physiological optics;" G. L. (Ter. Ed.) c. 112, § 82, embalmers, 
"an applicant . . . shall be entitled to be examined;" G. L. (Ter. Ed.) c. 112. 
§ 87A, public accountants, "the board . . . shall examine applicants;" G. L. 
(Ter. Ed.) c. 112, §§ 87V-87X, "an examination satisfactory to the board;" G. L. 
(Ter. Ed.) c. 112, § 51, "an applicant . . . shall be examined by the board in the 
subjects considered essential by it;" G. L. (Ter. Ed.) c. 112, § 45, dentists, "an 
apphcant shall be entitled to be examined by the board;" G. L. (Ter. Ed.) c. 112, 
§ 24, pharmacists, "an applicant . . . shall ... be entitled to examination." 

On the other hand, when the Legislature has not vested such discretion in an 
examining board it has, as in the section concerning electricians under considera- 
tion, required that the authority to examine be exercised in a prescribed manner 
and has so expressed its grant of authority as to indicate that such authority was 
required to be exercised only in the manner prescribed. For example: G. L. (Ter. 
Ed.) c. 142, § 4, plumbers, "the board . . . shall examine each applicant . . . asto 
his practical knowledge of plumbing . . . and subject him to a practical test satis- 
factory to the board;" G. L. (Ter. Ed.) c. 112, § GOC, architects, "the board . . . 
shall examine the applicant in writing" — a written examination may be supple- 
mented by such oral examination as the board may direct; G. L. (Ter. Ed.) c. 112, 
§ 75, nurses, "the examination shall be wholly or in part in writing, in the English 
language;" G. L. (Ter. Ed.) c. 112, § 3, physicians, "examinations shall be wholly 
or in part in writing." 



142 P.D. 12. 

Accordingly, I am of the opinion that the Examiners of Electricians have no 
authority to give oral examinations to applicants for licenses. 
Your second question reads : 

(2) "If an applicant for a license fails the established written examination, may 
the State Examiners of Electricians give the applicant an oral examination and 
issue him a license if he appears to be qualified?" 

I answer this in the negative. The Board has no authority, as I have stated, to 
give an oral examination for an electrician's license. The fact that an applicant has 
failed to pass a written examination does not empower the Board to disregard the 
legislative mandate that examinations are to be either written examinations or 
examinations in practical work. An examination in practical work consists of an 
actual demonstration to the examiners by an applicant of his ability to perform 
physical tasks incident to the calling of an electrician. It is neither an "oral" nor 
a "written examination" as the quoted words are used in said section 2. 

Very trulj^ yours, 

Robert T. Bushnell, Attorney General. 



Trust Company — Total Liability of Borrowers — Loans Guaranteed by Reconstruc- 
tion Finance Corporation — Not Guaranteed by the United States as Required 
by G. L. {Ter. Ed.), c. 172, § J/J, as Amended. 

Nov. 6, 1942. 

Hon. Joseph E. Perry, Commissioner of Banks. 

Dear Sir : — You have asked my opinion as to whether, in computing the liabili- 
ties of a person to a Massachusetts trust company, the amount of loans which are 
guaranteed by the Reconstruction Finance Corporation may be excluded from the 
total of such liabilities. 

The answer to your inquiry must rest upon a determination of whether loans 
guaranteed by the Reconstruction Finance Corporation may properly be said, as 
a matter of law, to be "obligations which are unconditionally guaranteed as to the 
payment of principal and interest by the United States" as the quoted words are 
used in G. L. (Ter. Ed.) c. 172, § 40, as most recently amended by St. 1941, c. 484. 
Said section 40, as amended, prohibits a trust company from making loans to per- 
sons whose total liabilities to such a company exceed an amount stated therein, 
but excepts from inclusion in such total liabilities 

"investments in obligations which are unconditionally guaranteed as to the pay- 
ment of principal and interest by the United States." 

I am of the opinion that loans guaranteed by the Reconstruction Finance Cor- 
poration are not as a matter of law "obligations which are unconditionally guar- 
anteed ... by the United States ' ' as those quoted words are used in said section 
40, and that consequently they may not be excluded in computing the liabilities 
of a person to a trust company for the purposes of said section 40. Although the 
Reconstruction Finance Corporation, which was created by Act of Congress in 
1932, c. 8, § 1, 47 Stat. 5, which act, as amended, now appears in U. S. C. A., 
Title 15, §§ 601-617, is a corporate agency of the Government of the United States, 
it is not the United States itself. 



P.D. 12. 143 

By the terms of the creating act the Reconstruction Finance Corporation may : 

"be employed as a financial agent of the Government; and it shall perform all such 
reasonable duties, as depositary of public money and financial agent of the Goyern- 
ment, as may be required of it?' (U. S. C. A., Title 15, § G12.) 

This provision would seem to be a determination by Congress that the corpora- 
tion is something other and apart from the United States. One may not act as his 
own agent, financial or otherwise. 

Moreover, it is provided that while the corporation may obligate itself upon 
"notes, debentures, bonds, or other such obligations" within large but definite 
limits (U. S. C. A., Title 15, § 609) it is further provided that these obligations 
"shall be fully and unconditionally guaranteed both as to interest and principal 
by the United States and such guaranty shall be expressed on the face thereof." 
(U. S. C. A., Title 15, § 609.) 

The Secretary of the Treasury, in his discretion, is authorized to purchase any 
obligation of the corporation and to market its obligations "using therefor all the 
facilities of the Treasury Department now authorized by law for the marketing of 
obligations of the United States." (U. S. C. A., Title 15, § 609.) These provisions 
indicate that Congress intended that the corporation, while performing certain 
functions pertaining to the National Government, was yet something apart there- 
from. 

Of similar import are those terms of the creating act which empower the directors 
of the corporation to determine the manner in which its obligations shall be in- 
curred and its expenses paid, and those which expressly give the corporation im- 
munity from taxes that the United States as such does not pay. (U. S. C. A., Title 
15, § 610.) 

Doubtless many forms of the governmental authority of the United States are 
discharged through the myriad activities of the Reconstruction Finance Corpora- 
tion in rehabilitating finance and industry and commerce, yet there is a distinc- 
tion between the corporation and the integral portions of the Federal Govern- 
ment which are properly comprehended in the words "United States" in G. L. 
(Ter. Ed.) c. 172, § 40, in the phrase "unconditionally guaranteed ... by the 
United States." 

There is nothing in Keifer et al. v. Reconstruction Finance Corporation, 306 U. S. 
381, or in Graves v. O'Keefe, 306 U. S. 466, 477, or in other opinions of the United 
States Supreme Court contrary to the foregoing view as to a real distinction be- 
tween this corporation as an agency of the Federal Government and such govern- 
ment of the United States. 

The phrase "unconditionally guaranteed ... by the United States" as em- 
ployed in G. L. (Ter. Ed.) c. 172, § 40, shows an intent upon the part of the Legis- 
lature to indicate a class of obligations not guaranteed merely by a corporate agency 
discharging certain Federal governmental functions, but guaranteed by the United 
States itself in its sovereign capacity, placing the full faith and credit of the Na- 
tional Government behind the obligations. 

The same phrase "unconditionally guaranteed ... by the United States," as 
applied to various obligations, has been employed by the Legislature in G. L. (Ter. 
Ed.) c. 168, § 54, cl. second, as amended, in setting forth permissible investments 
for a savings bank, and the phrase "direct obligations of the United States" has 
likewise been used in the same section, and with regard to investments of credit 



144 P.D. 12. 

unions in G. L. (Ter. Ed.) c. 171, § 21. In contradistinction, when the Legislature 
has intended to make available for investment obligations of governmental agen- 
cies not unlike the Reconstruction Finance Corporation, it has referred to such 
securities as those of a designated agency and not as those of the United States. 
As for example: farm loan bonds of "federal land banks" (G. L. (Ter. Ed.) c. 168, 
§ 54, cl. tenth); obligations of the "Federal Home Loan Bank" (G. L. (Ter. Ed.) 
c. 170, § 25); bonds of the "Home Owners Loan Corporation" (St. 1933, c. 343); 
obligations insured by the "Federal Housing Administrator" (St. 1935, c. 162, as 
amended by St. 1941, c. 260). 

As I have pointed out, the obligations of the Reconstruction Finance Corporation 
are required by the terms of the Federal statute (U. S. C. A., Title 15, § 609) to be 
"unconditionally guaranteed ... by the United States" but no similar provision 
has been made by Congress that obligations of persons, firms or private corpora- 
tions guaranteed as to payment by the corporation shall or may be guaranteed by 
the United States. " Unconditionally guaranteed by the United States " appears to 
have a definite meaning in the statutes of this Commonwealth, and its requirement 
as to any obligation is not satisfied by the guarantee of a corporate governmental 
agency of the type of the Reconstruction Finance Corporation. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Civil Service — • Employment of Disabled Fireman. 

Nov. 6, 1942. 
Hon. Ulysses J. Lupien, Director of Civil Service. 

Dear Sir : — You have informed me that a permanent fireman of the City of 
Boston, who had been appointed from an eligible list under the provisions of the 
Civil Service Law, and employed as such from 1914 to 1941, became unable to 
perform the regular work of a fireman by reason of an injury received while in the 
performance of his duties. 

You ask me whether under the provisions of G. L. (Ter. Ed.) c. 152, § 73A (in- 
serted by St. 1941, c. 649), you have "the right to allow him to be employed in any 
other capacity and receive the salary of a fireman while so employed." 

I am of the opinion that you have no authority to give approval under the pro- 
visions of said section 73A to the employment of a disabled city fireman in another 
capacity. 

The provisions of section 73A do not authorize the employment by a city of a 
disabled fireman. They extend the benefits of limited employment suited to the 
capacity of disabled city employees, subject to the approval of the Director of 
Civil Service, only to such employees as are: 

"by reason of partial disability . . . entitled to receive compensation as provided 
by section sixty-nine" (of chapter 152). 

Section 69 provides for the payment of compensation by certain cities to dis- 
abled "laborers, workmen and mechanics" but specifically excludes from the terms 
"laborers, workmen and mechanics" employees who are ''members of a police or 
fire force." 

Since a partially disabled member of a fire force is by reason of such exclusion 
not entitled to receive compensation as provided by said section 69, it follows that 



P.D. 12. 145 

he is not included among those city employees who may receive the benefits of said 
section 73A by way of employment in a capacity suited to a disabled condition, 
and that consequently you have no authority nor "right" to give your approval 
to his employment in such a capacity. 

Firemen of the City of Boston are entitled to receive pensions for disability under 
a comprehensive pension system established by St. 1880, c. 107, and acts in amend- 
ment thereof and in addition thereto, but they are not entitled to receive compen- 
sation under G. L. (Ter. Ed.) c. 152, § 69. The specific exclusion in section 69 
of members of a fire force from the terms "laborers, workmen and mechanics" 
is a legislative affirmation of the opinion of the Supreme Judicial Court in Devney's 
Case, 223 Mass. 270, 272, that the use of the words "laborers, workmen and me- 
chanics" in a statute providing for compensation does not indicate an intention 
on the part of the Legislature to include members of a fire department. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 

Metropolitan Water Supply — Municipal Connection with Supply — Expense — 

Reimbursement. 

Nov. 7, 1942. 

Hon. Eugene C. Hultman, Commissioner, Metropolitan District Commission. 

Dear Sir : ■ — You have informed me that the City of Cambridge has asked for 
connections in addition to one which it already has with the metropolitan water 
supply system. I assume from your statement that additional connections are 
requested as the city is not now "already adequately connected." 

You further inform me that Cambridge has not joined the water district "but 
under the provisions of the Acts of 1941, chapter 727, pays an annual premium, 
based upon the valuation of the city, for the protection of having a connection to 
our original system." 

You request my opinion as to whether your Commission is authorized to spend 
approximately $25,000 out of the fund appropriated for its water division for the 
expenses of installing the requested additional mechanical connections between its 
pipes and those of the City of Cambridge without an agreement for reimbursement 
for such expenses from the city. 

I am of the opinion that in the first instance the cost of making the requested 
additional necessary mechanical connections, the City of Cambridge not being 
already adequately connected with the metropolitan water supply system, is to 
be paid by the Metropolitan District Commission out of funds provided for the 
construction of water supply connections, that thereafter said cost is to be assessed 
upon the city in the manner provided for such assessment, and it will be required 
to pay its fair share thereof in the manner provided for the collection of assessments 
by section 5 of chapter 727. 

In other words, the obligation of the city to pay the cost of the additional re- 
quested mechanical connections is fixed by the statute under section 4, and the 
mode of collecting assessments for such cost is fixed by section 5. This being so, 
no contract for reimbursement of such cost is required from the city nor is one 
necessary to obtain the reimbursement, as a mode of effecting the same is provided 
by the statute itself. 



146 P.D. 12. 

St. 1941, c. 727, entitled "An Act relative to the furnishing of water to towns in 
the metropolitan water district and certain other towns," provides, in section 4, 
that a town (the word "town" as used in this act includes a city) "wliich is so lo- 
cated that it can reasonably be supplied with water from any distributing reservoir," 
shall, upon application, be provided with a connection to supply its immediate 
needs "unless already adequately connected." Section 4 further provides that such 
a town, and I assume from the tenor of your letter that Cambridge is such a town, 
"shall be assessed and pay ... its fair share of the cost of said connection, which 
may ... be distributed over a period not exceeding ten years" and that a town 
so provided with a connection shall be eligible to membership in the metropolitan 
water district. 

It is further provided in said section 4 that "Any town which already has a con- 
nection with the metropolitan water system, . . . and any town which makes, 
application for such connection under any provision of this act, shall annually, 
until it becomes a member of" the metropolitan water district, "be assessed and 
pay, as hereinafter provided, a premium equal to three hundredths of one per cent 
of its valuation for the preceding year." 

This annual payment of a premium which is required to be made by any town 
which has a connection with the metropolitan water system or makes application 
therefor, before such town becomes a member of the metropolitan water district, 
is a charge separate from, additional to and unconnected with the charge for the 
cost of the original mechanical connection or of an additional mechanical connection 
or connections, and is assessed only for the privilege of being enabled to draw water 
from the system. It is sometimes called a "stand-by charge." 

Section 5 provides a mode for the collection from the city of the amount assessed 
under section 4 as its fair share of the cost of the necessary additional mechanical 
connection or connections. It reads: 

"The state treasurer shall annually notify each town, not a member of the metro- 
politan water district, assessed under the provisions of section four of this act, of 
the amount so assessed, and the same shall be paid by the town to the common- 
wealth at the tune required for the payment of and as a part of its state tax. The 
proceeds from all such payments shall be used to defray the cost, in the case of each 
such town, of the water supply connection provided, and any balance shall be 
applied b.y the state treasurer to meet the expenses of maintenance and operation 
of. the metropolitan water works." 

These provisions of section 5 relate to the amount assessed upon a city. This 
amount includes the assessment for the cost of connections and the assessment of 
the annual premium for what I have referred to as the "stand-by charge." 

Very truly yours, 

Robert T. Busknell, Attorney General. 



Board of Registration of Professional Engineers — Requirements for Registration — 

Civil Service Classifications. 

Nov. 20, 1942. 
Mrs. Hazel G. Oliver, Director of Registration. 

Dear Madam : — You have asked my opinion as to whether the Board of Regis- 
tration of Professional Engineers and of Land Surveyors, created by St. 1941, 



P.D. 12. - 147 

c. 643, may require that oiily engineers in State or municipal service, within the 
Civil Service Law, classified under Civil Service Rule 4, as in Class 27, grades 4, 
5 or 6, may be registered. 

I am of the opinion that the said Board may not make such a requirement and 
that engineers in grades 1, 2 and 3 of said Class 27 are equally entitled to registra- 
tion. 

By Civil Semce Rule 4 the positions of various employees are "made subject" 
to the Ci\'il Service Law and Rules and placed in appropriate classes. 

Class 27 is composed by its terms of "civil, designing, electrical, mechanical, and 
sanitary engineers." 

This class so composed of "engineers" is subdivided into six grades. The posi- 
tions in each are given different titles and their respective duties are roughly out- 
lined. The duties assigned to grades 1 to 3, inclusive, appear to require less 
knowledge and skill than those assigned to grades 4 to 6, inclusive. Nevertheless, 
the positions in all the grades are those of "engineers" as prescribed by the rule 
for Class 27. 

St. 1941, c. 643, § 4, provides for the issuing of certificates of registration by the 
Board to certain professional engineers without examination and specifically 
provides : 

"Engineers in state or municipal service ciualified as civil, mechanical, designing, 
electrical, or sanitary engineers under the civil service laws of the commonwealth 
upon the effective date of this act shall be eligible to register as a professional engi- 
neer under this section." 

In view of the fact that Class 27 as established by the Civil Service Rules is a 
class composed of "civil, designing, electrical, mechanical, and sanitary engineers," 
whose members must have qualified as such under the provisions of said rules, 
these members, irrespective of the grade to which they may have been allocated 
within the class, fall within the group of employees intended by the Legislature to 
have the benefit of registration without examination. They are "engineers" as 
described in the quoted sentence, in the designated public employment, and by 
virtue of their classification and mode of attaining the same under the Civil Service 
Law are "qualified," as that word is used in such sentence. It is plain from the 
context of the sentence as a whole that the Legislature did not intend that the 
Board should substitute its own judgment of the cjualifications of these public 
engineers for that of the Division of Civil Service, under whose rules, by virtue of 
G. L. (Ter. Ed.) c. 31, as amended, they had been "qualified." 

You have also asked me if the said Board is required "to accept for registration 
as a professional engineer, any of the engineers employed in State or municipal 
service." I assume this question applies to engineers who are not in positions 
classified by Civil Service under said Rule 27, but in positions which are required 
by law to be filled by engineers, which positions are placed in some other class 
under the Civil Service Rule. 

I am of the opinion that if any particular position is required to be filled by a 
civil, designing, electrical, mechanical or sanitary engineer and the incumbent 
thereof has been held to be qualified for it by the Division of Civil Service, the 
Board is without authority to refuse to register him as a professional engineer. 



148 P.D. 12. 

You have asked me further if the said Board is empowered to state the require- 
ments of the qualifications of a professional engineer. 

I answer this question in the negative. The Legislature has set forth such quali- 
fications in G. L. (Ter. Ed.) c. 112, § 81D, as inserted by St. 1941, c. 643, § 2, as 
amended by St. 1941, c. 722, § 9A, and in St. 1941, c. 643, § 4, and the Board is 
without authority to enlarge or diminish these qualifications. 

Very truly yours, 

Robert T. Bushnell, Attorney General. 



P.D. 12. 149 



INDEX TO OPINIONS 



Architects, Board of Registration of; statute; intent of Legislature 

Civil service; acceptance of G. L. (Ter. Ed.) c. 31, § 47, by municipalities; 

labor serA'ice 

Call firemen ; promotion, reserve fire forces 

Promotional examination 

Classification plans for municipalities; authority of Director; promotional 

examination 

Commissioner of Soldiers' Relief in Lawrence; officer; election by city 

council 

Deputy Purchasing Agent of Springfield; facilities within classified civil 

service 

Employees of Department of Public Health 

Employment of disabled firemen . . . 

Labor service ; transfers 

Municipal commissioner of public welfare; examination pursuant to merit 

system rules; right to classification 

Labor service ; roster ; seniority 

Position placed within terms of civil service law; public office 
Non-competitive examinations prior to St. 1939, c. 506 

Pohce sergeants; transfers 

Qualifying examinations under St. 1941, c. 709; separation from service 
Removal of names from eUgible lists; certification of names of persons 

seventy years of age 

Soldiers' Relief Agent in Northampton; classification . 
TemporarA^ positions in labor service of Department of Public Works 
Conservation, Department of; county commissioners; eminent domain; 
land acquired by Commonwealth for state forests .... 
Division of Parks; state parks and forests; licenses from local authorities 

Constitutional law; anti-aid amendment 

Correction, Commissioner of; parole; period of time between conditional 

release and return to prison 

Elections; absentee voting; federal statute 

Electricians, State Examiners of; oral and wTitten examinations of applicants 

for licenses 

Embalming, Board of Registration in ; renewal fees of registrants who served 

in anny 

Funeral directing; advertisements 

Eminent domain ; taking by municipality, appropriation . 

Governor; authorit.y to fill vacancies in offices of justice and special justice 

of district and municipal courts 

Great ponds, Tashmoo Lake; changes in characteristics .... 
Hairdressers, Board of Registration of; rules; application for examination 
Rules; beauty schools and shops ; charges; premiums; conduct . 

Lisurance; renewal certificates; extension of policy 

Lease; authority of Wachusett Mountain State Reservation Commission 

to acquire land by leasing; acceptance of bond for conveyance of land 55 
Lowell Textile Institute; instructors; reinstatement after militarv' service; 

statutes 137 

Marriage; solemnization; non-resident army or na\'y chaplain .113 

Massachusetts Hospital School; non-resident children 91 

Medicine, Board of Registration in; alien applicant for registration; citizen- 
ship requirements 103 



150 P.D. 12. 

PAGE 

Mental Health, Department of: travel of patients who are enemy aliens . 63 

Transfer of feeble-minded persons in state schools 139 

Metropolitan District Water Supply Commission; authority to divert waters 

of Ware River 125 

Metropolitan Water District; stand-by charges on municipalities ... 72 
Municipal stand-by charge; liability of Town of Saugus .... 80 
Metropolitan Water Supply; municipal connection with supply; expense; 

reimbursement 145 

Milk Control Board ; power to revise orders ; statutory construction ; effective 

date of order 65 ~ 

Interpretation of statute; officers of co-operative associations; authority 
with relation to petition by members under G. L. (Ter. Ed.) c. 94A, § 12 
Motor vehicle ; time of passing title ; contract of sale 

Registration; absentee owners; applications; regulations 
Pardon; records of con\'ictions in office of Commissioner of Probation 

Parole, Board of; office; approval of accounts 

Plumbers; licenses; examinations; credit to applicants who served in army 

or naw 

Municipalities; codes; statute; master plumbers 
Probation service; appointment of officers; re-employment for duration of 

war ■ . 

Professional Engineers, Board of Registration of; requirements for registra- 
tion; civil service classifications .... 
Public Health, Department of; approval of sources of water supply for 

municipalities 

Authority of employees to enter private premises ; compensation for injuries 

sustained on private premises .... 
County and municipal tuberculosis hospitals; licenses 
Pre-marital medical examination .... 
State hospitals and sanatoria; licenses 
Public Welfare, Department of; assistance to aged persons; rules; "family 

group" 

Public Works; laborers; establishment of hours of a "work week" 

Sidewalk; town; authority of selectmen 

Reformatory for Women ; escape ; prosecution .... 
Registration, Board of; issuance of duplicate annual renewals of certificates 

of registration ; charge therefor .... 
Retirement law; county commissioner of Worcester; attaimiient of age of 

seventy 

Retirement, State Board of; contributions from members; military or naval 

leave 

Officer of state police ; rating board .... 
Separation from service; veteran .... 
Secretary of Commonwealth; notary pubhc; conviction; notice of forfeiture 

of commission 

Settlement, veteran; acquisition of military settlement 

Executive Order No. 32 

State employee; military substitute; vacancy 

Receipt of two salaries; salary not received from Treasury of Common- 
wealth 

Re-emplo^niient ; salary- 

Temporary increase in salary ; step rate increase 
State Racing Commission; public hearing on application for Ucense for dog 

racing meeting; form of notice .... 
Statute; effective date; subjects of referendum petition 

Acquisition of land by United States 
Treasurer and Receiver General; unemployment compensation funds and 

accounts; bonds; statutory construction 35 



P.D. 12. 151 

PAGE 

Trust company; total liability of borrowers: loans guaranteed by Recon- 
struction Finance Corporation; not guaranteed by United States as 

required by G. L. (Ter. Ed.) c. 172, § 40, as amended .... 142 

^'eteran: settlement; hospitalization; military' aid; soldiers' relief ... 77 

Soldiers' relief; selection of veteran's own physician: school physician 87 

Warden of State Prison; purchase of defense stamps for inmates; rules and 

regulations 83 

Water supply, City of Lowell: water department 130