Public Document No. 12
€:bt Commontoealtl) of ^a0$ac|)u$etti8i
That Part of the
REPORT
ATTORNEY GENERAL
WHICH CONTAINS OFFICIAL OPINIONS RENDERED
FOR THE PERIOD
December 1, 1942 to June 30, 1944
Public Document No. 12
Cl)e Commontoealti) of ^a$0acj)U0etts;
That Part of the
REPORT
ATTORNEY GENERAL
WHICH CONTAINS OFFICIAL OPINIONS RENDERED
FOR THE PERIOD
December 1, 1942 to June 30, 1944
OPINIONS
Department of Public Welfare — Corporations — Contributions to General
Funds for Social and Economic Betterment.
Dec. 4, 1942.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — You have asked my opinion as to whether under St. 1938,
c. 164, now G. L. (Ter. Ed.) c. 155, § 12A, you ''would have a right to
write a letter saving that corporations might give" to a fund being raised
bj' a relief committee or agency toward the support of the Boston Sym-
phony Orchestra, Inc.
G. L. (Ter. Ed.) c. 155, § 12A, reads:
"Every corporation may, by vote of its directors, or of its officers hav-
ing the powers of directors, contribute such sum or sums of money as
said directors or officers may determine to be reasonable to any general
fund being raised by a relief committee or agency approved by the com-
missioner of public welfare, as evidenced by a writing filed in his office,
and formed for the purpose of raising money to be used for the better-
ment of social and economic conditions in any community in which such
corporation is doing business. Nothing in this section shall be construed
as directly or indirectly restricting or otherwise affecting, except as herein
provided the rights and powers of any corporation with reference to pay-
ments of the nature above specified."
Under the provisions of this section you have no duty to perform in
comiection with the raising of a fund such as is described in the section
except to give or to withhold your approval of the relief committee or
agency raising such fund. It is no part of your duty "to write a letter
saying that corporations might give to this effort."
Any letter upon this point would be only the expression of your opinion
as an individual citizen, not as a public officer. In expressing your opin-
ion as an individual citizen you have a "right" to write any letter you
see fit upon the subject. As a public officer your authority and your duty
are confined to giving or withholding your approval of the relief com-
mittee or agency as such which is raising a fund for the designated purpose.
You have asked my opinion also as to your duty under said chapter
164 with relation to a body called Massachusetts Committee of the War
Production Fund to Conserve Manpower. If, as stated in a letter to you
from said committee, which you have laid before me, that organization is
not a "relief committee or agency," you have no duty to perform under
said chapter 164 with relation to this organization.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Board of Retirement — Transfer of Funds — Action of Legislature.
Dec. 15, 1942.
Hon. William E. Hurley, Chairman, State Board of Retirement.
Dear Sir: — The State Board of Retirement through you has asked
my opinion "as to whether or not there was a breach of contract by the
4 P.D. 12.
Commonwealth in the transfer of $36,358.23, representing an operating
deficit covering a period of three years, from the Surplus Interest Account
to the Annuity Reserve of the State Retirement System."
This transfer of funds was directed to be made by the Legislature in
the Additional Appropriation Act of 1941, c. 683, § 2, Item 0604-03, which
reads :
"Item 0604-03 of chapter four hundred and nineteen of the acts of the
present year is hereby amended by adding at the end thereof the fol-
lowing :
The board of retirement is hereby authorized and directed to transfer
from any surplus interest account to the annuity reserve fund the sum of
thirty-six thousand three hundred fifty-eight dollars and twenty-three
cents in the fiscal year nineteen hundred and forty-one, notwithstanding
the provision of paragraph (9) of section five A of chapter thirty-two of
the General Laws, as inserted therein by section one of chapter four hun-
dred and thirty-nine of the acts of nineteen hundred and thirty-eight."
G. L. c. 32, § 5A, par. (9), referred to in said section 2, reads:
^^ Guarantee.
(9) (a) If in any fiscal year the income from investment of the annuity
savings fund and the annuity reserve fund is insufficient to pay regular
interest, the amount necessary to make up any such deficiency in any
year shall be paid by the commonwealth as a deficiency account in the
following fiscal year.
(6) The commonwealth shall make good any loss of principal from the
annuity savings fund or from the annuity reserve fund in any year by
appropriation in the succeeding year.
(c) The payment of all pensions, annuities, retirement allowances,
refunds and any other benefits granted under any provisions of sections
one to five A, inclusive, or corresponding provisions of earlier laws are
hereby made obligations of the commonwealth.
{d) The board shall pay on the first day of each month the full amount
of pensions and annuities then due and payable. In case the appropria-
tion made for the pension fund is insufficient, the amount necessary to
make up any such deficiency in any year shall be paid by the common-
wealth as a deficiency account in the following fiscal year. The amount
to be appropriated in each year shall not be less than the total pensions
payable at the beginning of the fiscal year as appearing on the pension
rolls, together with such amount as is estimated to be necessary to pay
pensions to such beneficiaries as may be added to the pension rolls during
the current year, less any mortality gains."
I am informed that the Board has complied with the mandate of the
Legislature contained in said Item 0604-03, and has made the required
transfer. The Board is not required by law to take any further action
concerning the sum involved in the transfer. Your question as to whether
the action of the Legislature in directing this transfer constituted a breach
of contract upon the part of the Commonwealth is hypothetical as far as
your Board is concerned, and, following a long line of precedents, the
Attorney General does not render opinions upon hypothetical questions.
If the enactment of said section 2, Item 0604-03, on the part of the
Commonwealth by its Legislature constituted a breach of contract be-
tween it and the members of the Retirement System, the provisions of
P.D. 12. 5
said item would bo unronstitutional as violative of United States Consti-
tution, Art. I, section 10, as a "law impairing the obligation of contracts."
There is, however, a presumption in favor of the constitutionality of an
act of the Legislature, which, until overcome by an authoritative judicial
decision adverse to it, should be indulged in by executive and administra-
tive officers. Howes Bros. Co. v. Unemployment Compensation Commis-
sion, 296 Mass. 275, 284; Perkins v. Westwood, 226 Mass. 268, 271; Lowell
Co-operative Bank v. Co-operative Central Bank, 287 Mass. 338, 343.
An act of the Legislature directing officers of the Commonwealth to
take specific action in regard to a matter within the powers of such officers
should be obeyed by them in the absence of judicial pronouncement of
the invalidity of the act. Executive and administrative officers should
not refuse to obey such an act of the Legislature as the one in question,
setting their views of the authority of the General Court against that of
the considered judgment of the legislative body itself.
It appears that you have acted in obedience to the legislative mandate
embodied in said Item 0604-03, and, as you have no further duties to
perform in regard to its subject matter, no occasion exists which would
warrant my rendering an opinion upon the question which you have
asked.
If it be felt by the members of the State Retirement System that the
action of the General Court in 1941 was detrimental to them, representa-
tion of the facts may be made to the incoming Legislature which, if it
deems fitting, may order the transferred funds to be restored to their
former status or to be dealt with in some other appropriate manner.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Registration of Professional Engineers — Qualifications.
Dec. 17, 1942.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam : — I am in receipt through you of a request by the
Board of Registration of Professional Engineers and of Land Surveyors
that I reconsider an opinion rendered by me on November 20th in re-
sponse to your inquiry as to whether the said Board may require that
only engineers in state or municipal service, within the Civil Service Law,
classified under Civil Service Rule 4, as in Class 27, Grade 4, 5 or 6, may
be registered.
In that opinion it was held that all employees occupying positions in
Class 27, established by Rule 4 of the Civil Service Rules, were entitled
to be registered by the said Board as professional engineers, irrespective
of the grade in Class 27 to which their positions had been assigned.
The Legislature has provided for the registration by said Board of
persons as "professional engineers" (St. 1941, c. 643). With relation to
persons not serving as engineers in state or municipal service, qualified
as "civil, mechanical, designing, electrical, or sanitary engineers under
the civil service laws," the Legislature has established certain minimum
qualifications which must be possessed by applicants to entitle them to
registration.
In contradistinction to such persons the Legislature has specifically
provided in section 4 of said chapter 643, that "engineers in state or
municipal service qualified as civil, mechanical, designing, electrical, or
6 P.D. 12.
sanitary engineers under the civil service laws . . . shall be eligible to
register as a professional engineer.''
By such provision the Legislature has indicated an intent that experi-
ence in the public service by those who have qualified as engineers under
the civil service laws shall be considered equivalent to the requirements
prescribed for other applicants for registration.
As pointed out in the opinion previously rendered, persons occupying
positions in Class 27 are, by force of the Civil Service Rules, "civil, de-
signing, electrical, mechanical, and sanitary engineers" and are qualified
as such "under the civil service laws" as specified in section 4 of said
chapter 643. The fact that the positions of such qualified engineers are
divided into different grades with various titles and particular duties does
not alter the status of those holding such positions as "engineers" under
the Civil Service Rules, which have the force of law.
That opinion also stated that "the Legislature did not intend that the
Board should substitute its own judgment of the qualifications 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.'"
Your letter requesting a revision of the opinion on this subject suggests
that the registration of those public engineers in Class 27, whose positions
have been placed in Grades 1 to 3 thereof, lowers requirements that need
to be met by other engineers applying for registration and is therefore
contrary to sound policy. I am obliged to call your attention to the fact
that the incoming Legislature has power to amend this statute as it sees
fit and that such suggestions should be made directly to the lawmaking
body.
Very truly yours,
Robert T. Bushnell, Attorney General.
United States Flag — Person Authorized to Order Destruction of Outworn
Flags in a Cemetery.
Dec. 17, 1942.
Hon. Horace T. Cahill, Lieutenant Governor.
Dear Sir : — You have asked my opinion as to whether the official
appointed by the City of Boston under G. L. (Ter. Ed.) c. 115, § 22, is
the proper person to determine when a flag placed by a veterans' organ-
ization upon a grave in a cemetery in that city has reached such a condi-
tion that it is no longer a fitting emblem for display.
I am of the opinion that said official is a proper person to make such a
determination.
By a Joint Resolution, approved June 22, 1942, Public Law 623, 77th
Congress, a code of existing rules and customs pertaining to the use and
display of the flag of the United States was set forth.
Section 4 (j) of this resolution reads :
"The flag, when it is in such condition that it is no longer a fitting em-
blem for display, should be destroyed in a dignified way, preferably by
burning."
G. L, (Ter. Ed.) c. 115, § 22, in its appUcable part provides:
"In every town there shall annually be appointed by the mayor or
selectmen a citizen of the town, preferably a person who has served in the
army, navy or marine corps of the United States in time of war or insur-
P.D. 12. 7
rection and has boen honorably discharged from such service or released
from active duty therein, who shall see that every cemetery lot where
there is a grave of any person who has so served is suitably kept and
cared for. ..."
Since the official appointed under said section 22 is charged with the
duty to "see that every cemetery lot where there is a grave of any person
who has so served (in the army, navy or marine corps of the United States)
is suitably kept and cared for," he is impliedly empowered to determine
that a flag placed upon a grave in a cemetery lot has fallen into such a
condition as that described in said section 4 (j) of the Congressional
resolution, so that the veteran's grave over which it is placed is not ''suit-
ably kept and cared for."
When said official has made such a determination he has implied au-
thority to act in accordance with the provisions of the Congressional
code set forth in said section 4 (j) and to destroy the flag which is "in
such condition that it is no longer a fitting emblem for display, ... in a
dignified way, preferably by burning."
Irrespective of the manner in which a flag used to decorate a veteran's
grave is acquired by the organization which places it upon a grave in a
cemetery, the organization's rights in such flag are subject to the au-
thority of the said official to destroy it in a dignified way "when it is in
such condition that it is no longer a fitting emblem for display."
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Veterans' Preference — Certificates of Discharge.
Dec. 19, 1942.
Mr, Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have laid before me copies of (1) a "certificate of
discharge" from the United States Naval Reserve, and (2) a "discharge"
from the United States Naval Service, and have asked me whether the
holders thereof are entitled to veterans' preference in appointment under
ci\al service provided for by G. L. (Ter. Ed.), c. 31, §§ 21-23.
I am of the opinion that each of the holders of these certificates is en-
titled to such preference, provided that he meets the other conditions
required by said section 21 of one who has the status of a veteran.
1. G. L. (Ter. Ed.), c. 31, § 21, defines the word "veteran" as used in
said chapter. In so far as here applicable it provides that a veteran shall
be a person
"who has served in the army, navy or marine corps of the United States
in time of war or insurrection and whose last discharge or release from
active duty therein was an honorable one. . . ."
The "certificate of discharge" from the United States Naval Reserve
which you have exhibited to me, though not in terms entitled "Honorable
Discharge," certifies on its face that the holder thereof "has been dis-
charged" with "good discharge." On the reverse side of the certificate
it is set forth that the holder "has disqualifying defects . . . Tubercu-
losis, Pubnonar}'-, Chronic, Arrested, Incipient." It is plain, therefore,
from the context of this certificate that the discharge was occasioned by
the holder's physical condition. It also appears from data set forth on
8 P.D. 12.
the reverse side that the holder had served on active duty in the navy
during the time of the present war between the United States and foreign
countries. The certificate purports to be signed by the commanding
officer of the United States Naval Training Station at Newport, Rhode
Island.
Such a certificate is evidence of service in the navy of the United States
in time of war and that the holder's "discharge or release from active duty
therein was an honorable one" within the definition of "veteran" in G. L.
(Ter. Ed.), c. 31, § 21. In the absence of any evidence tending to show
otherwise, the certificate should be regarded as entitling the holder to the
status of a veteran under section 23 of chapter 31.
The United States Naval Reserve is itself a part of the United States
Navy, 34 U. S. C. A., 853.
2. The second certificate which you have shown me is entitled merely
"Discharge" and recites that the holder has been discharged from the
United States Naval Service "under honorable conditions, by reason of an
approved report of a Board of Medical Survey." On its face is the nota-
tion "Character of service GOOD." On its reverse side is set forth data
showing that the holder served in the United States Navy during the
present war between the United States and foreign countries, with a
notation that the holder "is not physically qualified for re-enlistment."
This certificate, like the one upon which I have already commented, is
evidence of requisite naval service and of an honorable discharge or re-
lease from active duty. In the absence of evidence tending to show
otherwise, this certificate should be regarded as entitling the holder to
the status of a veteran under section 23 of chapter 31.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Connection — Stagger System of Employment at State Prison
in Compliance With the Forty -eight-hour Laiv.
Dec. 22, 1942.
Hon. Arthur T. Lyman, Commissioner of Correction.
Dear Sir: — You have asked me if the "stagger system of hours now
in effect" at the State Prison, which you have set forth in your letter, "is
in compliance with the so-called forty-eight-hour law as contained in
chapter 149, section 39" of the General Laws.
I am of the opinion that this system is in compliance with the provisions
of said section 39.
G. L. (Ter. Ed.) c. 149, § 39, as amended, in its applicable portion is as
follows :
"The hours of labor of laborers, workmen and mechanics, of ward at-
tendants, ward nurses, industrial and occupational therapists and watch-
men, and of employees in the kitchen, dining-room and domestic services,
in state institutions, and of officers and instructors of state penal institu-
tions, shall not exceed forty-eight in each week. Any person whose hours
of labor are regulated by this section and whose presence is required at
any such institution seven days a week shall be given at least four days
off in each month, without loss of pay, in addition to the regular annual
vacation. The words 'hours of labor' as used in this section shall not be
deemed to include any period of time during which a person is in his living
quarters wherever located although his presence there is required for the
P.D. 12. 9
purpose of exercising a measure of supervision over patients or inmates
through availabiUty for duty during such time. ..."
Under the ''stagger system" of employment as set forth in your letter
it appears that prison officers are required to work on each day of the
week at different periods during the day. For five days of the week these
periods total 38 hours and 45 minutes; for Saturday, 7 hours and 30
minutes; and for Sunday, 6 hours and 35 minutes — a total of 52 hours
and 50 miimtes, which, however, is reduced to 45 hours and 20 minutes,
at the most, by the one day off in each week which you advise me is given
to each officer.
There thus appears to be no violation of the provisions of said section
39 requiring a work week not exceeding forty-eight hours for officers in
state penal institutions and four days off in each month for persons whose
duties require their presence at such institutions seven days a we(;k.
You have also asked me if prison officers "may be required to work
more? than (nght hours in any one day as long as, in their regular course of
work, they do not work more than forty-eight hours in any week."
I am of the opinion that prison officers may be required to work more
than eight hours in any one day if they do not work more than forty-
eight hours in any one week.
The provisions of G. L. (Ter. Ed.) c. 149, § 30, for a workday of not
more than eight hours, are not made applicable to prison officers. Such
provisions are limited to "laborers, worlanen and mechanics employed by
the commonwealth." Certain persons who are in the general classifica-
tion of laborers, workmen and mechanics are taken out of the protection
of the eight-hour law by section 36 of said chapter 149.
Prison officers, or "correction officers," as you have referred to them in
your letter, are not within the classification of "laborers, workmen and
mechanics" in said section 30. There is no provision of the statutes
making said section 30 applicable to State Prison officers as well as to
"laborers, workmen and mechanics" as exists with relation to "officers
. . . employed by counties in penal and reformatory institutions'^' by
force of section 40 of said chapter 149.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Call Firemen in City of Waltham — Promotions.
Dec. 28, 1942.
Mr. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You have asked my opinion as to whether you have
authority to approve the promotions of two call firemen of the City of
Waltham to permanent firemen in the fire department of that city.
I am of the opinion that you may not approve such promotions.
By St. 1941, c. 38, the Legislature passed a statute entitled "An Act
regulating the certification of names for promotion from the reserve to
the regular fire force in certain cities," which amended G. L. (Ter. Ed.)
c. 31, by striking out section 19A and inserting a new section 19 A, which
read :
"In each city in which there has been established a reserve force of
firemen in its fire; department under the provisions of sections fifty-nine B
to fifty-nine D, inclusive, of chapter forty-eight, appointments to the regu-
10 P.D. 12.
lar force shall be made by the appomting authority upon certification by
the director from the Hst of members of the reserve force of firemen, in
accordance with the rules of the commission, except that the basis of
certification shall be the order of appointment to the reserve force, or, if
not ascertainable, the order of the respective ratings of such members
obtained in the examination upon which the list of eUgibles for appoint-
ment to such reserve force was based. No person who has passed his
fiftieth birthday shall be appointed from such a reserve force to such a
regular force."
This act was intended to be of general application throughout the
Commonwealth in cities which have reserve fire forces established pursuant
to G. L. (Ter. Ed.) c. 48, §§ 59B-59D, inclusive, and to establish in such
cities a uniform mode of filling vacancies in the personnel of their fire
departments.
In an opinion which I rendered to you on December 18, 1941 (Attorney
General's Report, 1942, p. 45), I stated that "in cities which have a reserve
fire force established" under said chapter 48, sections 59B to 59D, "ap-
pointments to the permanent fire force must be made from the list of
members of the reserve force and not from call firemen. ..."
I am informed that the City of Waltham has accepted said sections
59B to 59D, and has a reserve fire force established thereunder. Ac-
cordingly, promotions to the ranks of its regular and permanent firemen
must be made from such reserve force and not from a force of call firemen
which it may still have. It follows that you would not have authority to
approve the promotion of call firemen in Waltham, in view of the provi-
sions of said section 19A which require you in such a case to certify the
members of the reserve force for appointment to the regular force.
In 1913 the Legislature, by chapter 49, passed a statute entitled "An
Act relative to promotion of call firemen to the permanent force in the
City of Waltham," relating solely to the City of Waltham.
That statute provides that call members of the fire department of the
City of Waltham possessing certain specified qualifications "shall be
eligible to the permanent force of the department without further exami-
nation," subject to a preference in promotion to persons whose names
are already on a civil service list as eligible for appointment as permanent
firemen.
However, in view of the fact that it was the intent of the Legislature
in enacting the present G. L. (Ter. Ed.) c. 31, § 19A, by St. 1941, c. 38,
to make a law of general application to cities having reserve fire forces
established under G. L. (Ter. Ed.) c. 48, §§ 59B-59D, and to establish a
uniform mode of filling vacancies in the regular fire departments of such
cities from the reserve forces alone, the effect of the enactment of the new
section 19A was to render uieffective the particular provisions of St. 1913,
c. 49, applicable only to the City of Waltham, as the terms of the two acts
are irreconcilably inconsistent. A later statute providing that promotions
to positions of permanent firemen may be made from established reserve
fire forces alone is wholly inconsistent and irreconcilable with an earlier
statute providing that call firemen may be so promoted, and, by well
recognized rules of statutory construction, the later and general statute
will prevail and the earlier and special act will be terminated and repealed
by necessary imphcation. Brown v. Lowell, 8 Met. 172, 174, Gage v.
Currier, 4 Pick. 399; Mansfield v. O'Brien, 271 Mass. 515; Whiting v.
Board of Public Works of Holyoke, 222 Mass. 22, 26; Copeland v. Spring-
P.D. 12. 11
field, 166 Mass. 498; Logan v. Mayor and Aldermen of Lawrence, 201
Mass. 506; Cassidy v. Transit Dept. of Boston, 251 Mass. 71; VI Op.
Atty. Gen. 476.
I stated in said opinion of December 18, 1941, that the provisions of
G. L. (Ter. Ed.) c. 31, § 19A, were so inconsistent with the provisions of
the earUer general statute relating to promotion of call firemen in cities
other than Boston not regulated by a special act relating to such pro-
motions (G. L. (Ter. Ed.) c. 48, §§ 36, 37) as to render the provisions of
said earlier general statute inapplicable to such of said cities as had adopted
sections 59B to 59D of said chapter 48 and had established reserve fire
forces thereunder. The provisions of G. L. (Ter. Ed.) c. 31, § 19A, are, as
I have pointed out, likewise so inconsistent with the earlier local statute
applicable specifically to the City of Waltham (St. 1913, c. 49) as to render
the provisions of said earlier local statute concerning the promotion of
call firemen inapplicable since the City of Waltham has adopted said
sections 59B to 59D, and established a reserve fire force thereunder.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service Commissioners — Transfer — Decision of Director — Appeal.
Dec. 28, 1942.
Comynissioners of Civil Service.
Dear Sirs : — You have asked my opinion as to your authority to
pass upon an appeal taken by an employee from a decision of the Director
of Civil Service not to give his consent to a transfer of the employee from
the Boston Public Welfare Department to the Boston School Depart-
ment, such consent being a condition precedent to such a transfer under
the provisions of G. L. (Ter. Ed.), c. 31, § 16A, and Civil Service Rule 27.
It is provided by G. L. (Ter. Ed.) c. 31, § 16A, that a transfer of an
employee in the classified civil service from a position in one department
to a position in another department shall not be made "without the
approval and consent of the appointing authority in the . . . depart-
ments involved."
You have mformed me that the Boston School Committee, the ap-
pointing authority in one of the departments involved in the transfer
which was proposed, has ''stated that it does not now desire the transfer"
and you have sent me a copy of a letter from the secretary of the Boston
School Committee addressed to the secretary of your Board, in response
to an inquiry from your Board, stating "that there is no request pending
for the employee's transfer."
There is no provision of the Civil Service Law or Rules which prohibits
a department from withdrawing a request for a transfer.
Inasmuch as it appears to be the fact that the request in question has
been withdrawn and is no longer pending, since said section 16A provides
that "No such transfer shall be made without the approval of the ap-
pointing authority in the . . . departments involved," the question be-
fore your Board, upon the employee's appeal from the decision of the
Director refusing to consent to the transfer, has become moot and there
is no occasion for your Board to take action upon the appeal. The ques-
tion of the Commissioners' authority to pass upon an appeal of this kind
from a decision of the Director with relation to a transfer has become
purely hypothetical. Even if the determination of the Commissioners
12 P.D. 12.
was favorable to the appellant, the transfer could not be effected since
the Boston School Department does not now approve of or consent to it.
The Attorney General, following a long line of practice and precedent
in this Department, does not pass upon hypothetical questions.
Very truly yours,
Robert T. Bushnell, Attorney General.
United States Medical Officers — Extent of Authority to Practice in
Massachusetts.
Jan. 5, 1943.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — The Board of Registration in Medicine, through you,
has asked my opinion as to whether medical officers of the United States
Army, Navy or Marine Hospital Corps may attend patients in a civilian
hospital, where attendance upon such patients is a part of their duty as
such officers, although they are not registered as physicians in this Com-
monwealth under the provisions of G. L. (Ter. Ed.) c. 112, §§ 2-6, in-
clusive.
I am of the opinion that the medical officers of the federal services which
you have indicated, who are charged by regulations of their several serv-
ices with the duty of attending certain persons when sick or injured, may
attend and treat such persons either in civilian hospitals or elsewhere in
the Commonwealth without being registered as physicians under the
provisions of G. L. (Ter. Ed.) c. 112, § 2.
Sections 2 to 6 of said chapter 112 provide for the registration of physi-
cians and prohibit the practice of medicine by unregistered persons within
the Commonwealth.
Section 7 of said chapter 112, however, provides in its applicable part:
''Sections two to six, inclusive, . . . shall not apply to a commissioned
medical officer of the United States army, navy or marine hospital service
in the performance of his official duty; ..."
You have also asked me whether the medical officers of the said services
may sign birth and death certificates.
I am of the opinion that they may do so with respect to patients whom
their official duties require them to attend. G. L. (Ter. Ed.) c. 46, § 9,
requires that:
"A physician . . . shall forthwith, after the death of a person whom
he has attended during his last illness, . . . furnish for registration a
standard certificate of death ..."
G. L. (Ter. Ed.) c. 46, § 3, requires that:
"Every physician, . . . shall keep a record of the birth of every child
in cases of which he was in charge . . . Said physician . . . shall, within
fifteen days after such birth, mail or deliver to the clerk ... of the town
where such birth occurred, a report ..."
In view of the exclusion of the medical officers of the said services from
the requirements of G. L. (Ter. Ed.) c. 112, §§ 2-6, with relation to regis-
tration before practice, they may properly furnish death certificates and
birth reports relative to patients whom they are required to attend in the
performance of their duties under the regulations of their respective
services.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 13
Civil Service — Record of Appointment — Permanency of Position —
Deputy Purchasing Agent — Springfield.
Jan. 6, 1943.
Mr. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have iiiforined me that you held a Civil Service
competitive examination for the position of Deputy Purchasing Agent in
the City of Springfield for the first appointment to be made since the
creation of the position; and that the poster announcing the examination
did not mention the fact that the city ordinance of Springfield creating
the position established the term of office of the first incumbent of such
position as expiring on January 1, 1945.
You state that an eligible list was established as a result of such exami-
nation, that an appointment was made by the municipal authority from
the names of applicants certified by you from such list, and that it is noted
on the appointment blank furnished by the appointing authority to you
that the term of the appointment will expire on January 1, 1945.
You have asked my opinion as to whether you should record the ex-
piration date of this appointment upon your Civil Service records as a
"permanent" appointment or as one which will expire on January 1, 1945.
I am of the opinion that if you make such a record you are required to
have it set forth that the said appointment will expire on January 1, 1945.
The applicable ordinance of the City of Springfield, as approved on
December 29, 1941, provides, in part:
"There shall be a Deputy Purchasing Agent appointed by the mayor
after consultation with the Purchasing Agent subject to confirmation by
the city council, and he shall be subject to the direction and control of
the Purchasing Agent. His term of office shall expire January 1, 1945.
Subsequent terms of office shall be for a period of six years. ..."
The term of the first incumbent of the position of Deputy Purchasing
Agent was fixed and established by the ordinance passed by the City
Council of Springfield and approved by the Mayor. The city accepted
the provisions of G. L. (Ter. Ed.) c. 41, § 103, authorizing the creation of
the position, which by specific terms gave the City Council, as the legisla-
tive bod}' of the municipality; power to establish the position and fix the
term of office, and the position so created came within the scope of the
Civil Service Law and Rules. See opinion of the Attorney General to
you of February 19, 1942, Attorney General's Report, 1942, p. 76.
Power to fix the term of the occupant of the office being in the City
Council, with the approval of the Mayor, no statement as to the length
of such term in any poster or announcement of the examination for such
position issued by the Division of Civil Service could increase its length
or change the date of expiration fixed by said ordinance. No omission to
state the length of the term of any such position nor any implication as
to the length of the term arising from such an omission has any force or
effect to alter the date of expiration of the term as fixed by the ordinance.
The term of office of the person who you advise me has just been ap-
pointed will end on January 1, 1945, by force of said ordinance, and, if
your records are to contain a true statement of the relevant facts, they
must set forth not that the appointment is to a permanent position, but
that it is one which will expire on January 1, 1945.
Very truly yours,
Robert T. Bushnell, Attorney General.
14 P.D. 12.
Board of Registration in Chiropody — Disapproval of Rules — Temporary
Approval — Right of Graduate to Take Examination — Change of Reg-
istrant's Name.
Jan. 21, 1943.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — The Board of Registration in Chiropody (Podiatry)
has through you asked my opinion on certain questions of law with rela-
tion to the Beacon Institute of Podiatry and the Middlesex School of
Podiatry.
I am informed that said Board, on or about June 22, 1938, gave a ''pro-
visional approval" to both the Beacon Institute and the Middlesex School,
as schools of chiropody under G. L. (Ter. Ed.) c. 112, § 16. You advise
me that on October 6, 1941, the Board "formally disapproved" the two
institutions as schools of chiropody. As a result of such disapproval the
members of the graduating classes of those institutions would not have
been eligible for registration as chiropodists at the close of the school year
under said section 16, since they would not have been graduated "from a
school of chiropody (podiatry) approved by the board" in accordance
with the terms of said section.
In view of the hardships resulting from such a situation to these gradu-
ates who had entered the schools prior to the disapproval of October 6,
1941, the Board, after April 1, 1942, voted, with respect to each school,
to reinstate its approval for the time being, for the purposes of G. L.
(Ter. Ed.) c. 112, § 16.
The Board notified the schools of such vote, and in its letter of notifi-
cation stated:
"It should be understood by the school that such approval is not of
indefinite duration, but that the Board intends, at the close of the present
school year, to inquire further into the quahfications of the school to
retain the Board's approval. The Board reserves the right to inspect the
school at that or any time, and take such action in regard to the continu-
ance of its approval, as the circumstances shall warrant.
Any catalogue or other form of advertising or solicitation of prospective
students issued by the school shall plainly state that the status of the
school as an approved school under G. L. (Ter. Ed.) c. 112, § 16, as
amended, after the close of the present scholastic year, will depend upon
the result of the aforementioned inquiry to be made by the Board and
the action to be taken pursuant thereto."
I am informed that the Board later accepted graduates of the schools
for examination for registration as chiropdists.
You have asked the following questions with relation to the situation
disclosed by these facts :
"1. Was the Board in error in accepting the graduates of these schools
for examination without formally rescinding its action of disapproval, or
does the sending of the letters do so by imphcation? "
In my opinion, the vote of the Board to reinstate its approval of the
schools rescinded its action of disapproval of October 6, 1941, so that the
Board did not err in accepting the graduates of these schools for examina-
tion. Although the approval of the Board, given on or about June 22,
1938, was termed a "provisional approval," the quahfication conferred
by the word "provisional" was not operative, since the statutory require-
P.D. 12. 15
ment admits only of an "approval," and the consequent effect of the
action of the Board on June 5, 1938, was to give to the schools the neces-
sary approval.
"2. The sense of paragraph 1 of the letter would seem to indicate that the
Board is granting the schools temporary approval. Has the Board the right
under the statute or any other source to make any such provision?"
The Board is not authorized by said S(;ction 16 to grant a temporary
approval to a school.
The letter which was sent to the schools, informing them of the vote,
gave them warning that the approval th(^reby granted might be with-
drawn by the Board in the future if they did not take certain steps which
had previously been indicated to them as necessary to meet the Board's
requirements. The vote to reinstate the approval formerly accorded the
schools was not temporary in the sense that it ceased to be effective auto-
matically; it was permanent until revoked by action of the Board. The
purpose and intent of the letter sent the schools appears to have been not
only to apprise them of the approval, but to inform them that unless they
complied in the future with the Board's previously described requirements
the approval might be revoked by the Board.
"3. If the answer to Point 2 is in the negative, just what is the present
status of the schools as regards approval or disapproval? What steps
should be taken to clarify, or, if necessary, to correct the situation?"
The present status of the schools is that of schools "approved by the
Board."
If the Board now feels that the schools are not complying with require-
ments which the Board deems necessary, it may, after notice and a hear-
ing, revoke the approval given by its vote referred to in said letter. If
the Board is satisfied that the schools have now met its requirements, no
action is necessary as they are, by virtue of the vote to "reinstate" the
Board's approval, schools "approved by the board" within the meaning
of said section 16, whose graduates may be examined for registration as
chiropodists.
You have also asked my opinion as to the practice which the Board
should follow in relation to chiropodists who since their original registra-
tion have had their names changed "by court order or marriage" or have
changed their first or middle names without "legal process."
By said section 16 the Board is required to issue new certificates of
registration annually upon payment of a fee of two dollars. If the Board
has knowledge, when a renewal is issued, of a change in a registrant's
name by marriage or by a decree of a Probate Court under G. L. (Ter. Ed.)
c. 210, §§12 and 13, since the first registration, the renewal should be in
the new name and that name should be entered on the registration records
of the Board.
The Board should disregard changes in the first or middle names
adopted by registrants after their original registration, unless made by
decree of a Probate Court.
Very truly yours,
Robert T. Bushnell, Attorney General.
16 P.D. 12.
Motor Vehicles, Registry of — Registration of a Motor Vehicle to a Lessee.
Jan. 21, 1943.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You have asked my opinion "as to whether or not the
Registry of Motor Vehicles has the power to register a motor vehicle to
a lessee."
I am of the opinion that it has such power.
G. L. (Ter. Ed.) c. 90, § 2, provides:
"Application for the registration of motor vehicles and trailers may be
made by the owner thereof."
And the Registrar is authorized to issue to such applicant a certificate of
registration of the motor vehicle for the registration of which he has
applied.
Prior to the enactment of St. 1909, c. 534, § 2, the statutes provided
that registration should be effected by the owner or a "person in control
thereof." The quoted words were omitted from said chapter 534, § 2,
and do not appear in later amendments thereof nor in the provisions of
the Motor Vehicle Law now embodied in said G. L. (Ter. Ed.) c. 90, § 2.
In passing upon the meaning of the word "owner" as employed in said
St. 1909, c. 534, § 2, as amended by St. 1912, c. 400, § 1, the Supreme
Judicial Court in Downey v. Bay State Street Railway, 225 Mass. 281, 284,
said :
"The words 'person in control thereof found in the earlier enactments
obviously embrace a class of persons who may have no general or special
property in the motor vehicle they are operating, while the word 'owner'
includes, not only persons in whom the legal title is vested, but bailees,
mortgagees in possession and vendees under conditional contracts of sale
who have acquired a special property which confers ownership as be-
tween them and the general public for the purposes of registration."
In the foregoing case the court held that the motor vehicle then under
consideration had been properly registered in the name of one who was a
vendee under a conditional contract of sale by the terms of which a bill
of sale was to be given when the purchase price had been fully paid and
imtil default in payment the vendee was given unqualified right to the
possession, use and management of the vehicle. In its opinion, the court
stated that since the vehicle was properly registered it was not necessary
that it determine the validity of a vote of the Massachusetts Highway
Commission, the then registering body, authorizing the registration of
motor vehicles by lessees when the name of the title holder as well as that
of the lessee was given in the application.
In Caccavo v. Kearney, 286 Mass. 480, 484, the Supreme Judicial Court
said:
"That relation to a motor vehicle has been held to be enough to warrant
registration in the name of a bailee on the ground that 'owner' in G. L.
c. 90, § 2, to the effect that 'Application for the registration of motor
vehicles . . . may be made by the owner thereof,' is broad enough to
include bailees."
In Hurnanen v. Nicksa, 228 Mass. 346, the court held that one in pos-
session of a motor vehicle under an agreement in the form of a lease but
P.D. 12. 17
which the court held to be in reahty an instrument effecting a condi-
tional sale of the vehicle was an "owner" of the vehicle for the purpose of
registration. The court stated as a principle of law that a vendee of
personal property under a contract of conditional sale, who has com-
mitted no breach of the terms of that contract, has a special property
which he can sell or mortgage.
The Supreme Judicial Court has also held that where the seller of a
motor vehicle has retained title it may be rc^gistered in the name of either
the vendor or vendee. Temple v. Middlesex d' Boston St. Rwy. Co., 241
Mass. 124; Liddell v. Middlesex Motor Co., 275 Mass. 346; Murray v.
Indursky, 266 Mass. 220, 223.
So part owners have a special property by reason of such ownership in
a motor vehicle and may register it individually, Pearson v. Bara, 263
Mass. 502; Shufelt v. McCartin, 235 Mass. 122; Harlow v. Simnan, 241
Mass. 462; Burns v. Winchell, 305 Mass. 276.
It would appear that the test of the right to register a motor vehicle
on the part of one not the owner of the title is the possession of a "prop-
erty interest" in the vehicle sufficient to vest him with a special property
therein. Squires v. Fraska, 301 Mass. 474, 476.
A lessee in possession of a chattel has acquired a property interest in
the subject of the lease which gives him a special property and so owner-
ship, in the broad sense of the word, as between him and the general
public. Although he is not in the way toward acquiring the legal title,
nevertheless he may assign his interest and his leasehold may be reached
by his creditors and applied in equity toward the satisfaction of their
claims. The principles which have been enunciated by our Supreme
Judicial Court with relation to bailees, mortgagees in possession and
vendees under contracts of conditional sale would seem to be equally
applicable to a lessee in possession and to authorize his registration of a
leased motor vehicle in his name as owner.
Very truly yours,
Robert T. Bushnell, Attorney General.
Fish and Game — License — Revocation — Conviction in Criminal Case.
Feb. 8, 1943.
Hon. Raymond J. Kenney, Commissioner of Conservation.
Dear Sir : — You have asked my opinion as to what form of disposi-
tion by the courts, of complaints for violations of the fish and game laws,
renders void and requires the surrender, by the terms of G. L. (Ter. Ed.)
c. 131, § 16, of a defendant's sporting, hunting, fishing or trapping license
issued under section 8 of said chapter 131.
Said section 16, as last amended by St. 1941, c. 599, § 2, in its applicable
part reads:
"... every license, permit and certificate issued under any provision
of this chapter held by any person found guilty of, or convicted of, or penal-
ized in any manner for, a violation of any provision of this chapter, or of
corresponding provisions of earlier laws, or of any rule or regulation made
under authority thereof, shall be void, and shall immediately be surren-
dered to any officer authorized to enforce this chapter . . ."
Prior to this amendment of said section 16, the provision in the section
for the voiding and the surrendering of the license read :
IS P.D. 12.
''. . . Every license . . . held by any person found guilty of a viola-
tion of any provision of this chapter, shall be void, and shall immedi-
ately be surrendered to the officer securing such finding. ..."
The amendment has added to the form of disposition of a criminal case
for violation of the fish and game laws (a finding of guilty), which formerly
voided a license and required its surrender, those dispositions in which a
defendant is (1) "convicted of" such a violation; and (2) "penaHzed in
any manner" for such a violation.
You have asked me specifically as to whether or not a license becomes
void with the following dispositions:
"Following a plea of guilty or not guilty:
1. Filed without adjudication
2. Filed without adjudication but with assessment of costs of
court
3. Found guilty and case placed on file
4. Found guilty and a fine imposed
5. Found guilty and a fine imposed but payment suspended
6. Found guilty and a jail sentence imposed
7. Found guilty and a jail sentence imposed but suspended
8. Found guilty and placed on probation
Following a plea of Nolo Contendere, accepted and —
9. Filed without adjudication
10. Filed without adjudication but with assessment of costs of
court
11. Found guilty and case placed on file
12. A fine imposed
13. A fine imposed but payment suspended
14. A jail sentence imposed
15. A jail sentence imposed but suspended
16. Placed on probation"
The first disposition as to which you inquire: "Filed without adjudica-
tion" by its terms presupposes that there has been no "finding of guilty,"
and no "conviction," and that the defendant has not been "penalized"
in any manner by a judgment of a court. Consequently such a disposi-
tion does not come within any of the three forms of disposition in said
section 16, and does not void a defendant's license nor require its sur-
render.
The second disposition: "Filed without adjudication but with assess-
ment of costs of court" presupposes no finding of "guilty" nor of any
"conviction" by a court. It may, however, be said that permitting a
case to be filed, upon the payment of costs by a defendant, does penalize
the defendant and such a disposition may fairly be held to come within
the third type of disposition ("penalized in any manner") set forth in
section 16 as voiding a license and requiring its surrender.
Concerning the forms of dispositions numbered 3 to 8, inclusive, it is
stated that the defendant was "found guilty" in each instance. All of
these forms fall squarely within the first form of disposition voiding a
license and requiring its surrender, set forth in said section 16 ("any
person found guilty"). That being so, it is immaterial what sentence was
mposed after such a finding or if thereafter the case was placed on file
{Marks v. Wentworth, 199 Mass. 44, 45), and in each instance surrender of
P.D. 12. 19
the defendant's license should bo required. (See Attorney General's
Report, 1931, pp. 50, 51.)
The instances of disposition which you have set forth in 9 to 16, in-
clusive, are predicated upon a plea of "iiolo contendere" having been en-
tered by the defendant.
The first instance of a disposition after such a plea which you have set
forth, "9. Filed without adjudication," falls within none of the three
forms of disposition mentioned in said section 16. There has been no
finding of "guilty," no "conviction," and the defendant has not been
"penalized in any manner." It follows that after such a disposition of a
complaint the license is not rendered void nor is its surrender required.
The second instance of a disposition after a plea of "nolo contendere"
which you have set forth, "10. Filed without adjudication but with
assessment of costs of court" would have been regarded under said 16,
as it stood before the amendment of 1941, as not voiding the license or
requiring its surrender.
The amending act, St. 1941, c. 599, § 2, added to the previous forms of
dispositions requiring surrender of licenses one which "penalized" the
defendant "in anj^ manner." Appropriate force and effect must be given
to these added words and consequently I am of the opinion that though,
when a plea of "nolo" is accepted, the defendant is not "found guilty"
nor "convicted," yet he is "penalized" when costs are assessed against
him and paid as a condition of the acceptance of the plea, as the word
"penalized" is employed in said section 16. Under such circumstances
the Hcense is rendered void and is required to be surrendered.
The third instance of a disposition after a plea of "nolo" which you
have set forth is: " 11. Found guilty and case placed on file." When, after
a plea of "nolo" has been accepted, a court makes a finding of guilty
whether the matter is thereafter placed on file or not, the defendant has
been "found guilty" and this disposition falls within the first of those
referred to in said section 16, so that the defendant's license will be voided
and should be surrendered.
In the instances referred to in 12 to 15 you have set forth the imposition
of a fine or a jail sentence as dispositions after a plea of "nolo."
Such dispositions, whether or not they be regarded technically as con-
victions, penahze the defendant and for that reason fall within the third
form of disposition mentioned in said section 16 which voids a license and
requires its surrender. This is so whether an unposed jail sentence be
suspended or not. (Attorney General's Report, 1931, p. 52.)
The last instance of a disposition following a plea of "nolo" which you
have set forth, "16. Placed on probation" would not before the amend-
ment of said section 16, have been such as to void a defendant's license.
However, if due effect is given to the words "penalized in any manner,"
added to section 16 by the said amending act of 1941, I am of the opinion
that the imposition of a period of probation falls within the meaning of
"penalized in any manner" as the words are employed in said section 16.
Very truly yours,
Robert T. Bushnell, Attorney General.
20 P.D. 12.
Taxation — Person in Possession of Real Estate Owned by the Common-
wealth — Commonwealth Flats Leased for Business Purposes.
Feb. 8, 1943.
Hon. Herman A. MacDonald, Commissioner of Public Works.
I.
Dear Sir : — You have asked my opinion as to whether or not the
Commissioner of Corporations and Taxation, acting under authority of
G. L. (Ter. Ed.) c. 59, § 11, as amended by St. 1939, c. 175, may authorize
the assessment of taxes upon real estate owned by the Commonwealth to
a person who is in possession thereof or to a person interested therein on
January first as having a right to acquire title, if such property is exempt
from taxation under G. L. (Ter. Ed.) c. 59, § 5, cl. (2).
I am of the opinion that the Commissioner of Corporations and Taxation.
may not authorize such assessment.
Prior to 1936 assessors were empowered to assess real estate "to the
person who is either the owner or in possession thereof" (see St. 1933,
c. 254, § 29). By St. 1936, c. 92, the authority of assessors to assess the
person in possession was eliminated.
On December 7, 1938, the Commissioner of Corporations and Taxation
submitted a report to the General Court in which he called attention to
the change made in the earlier law by St. 1936, c. 92, and, as one of his
recommendations for new legislation, set forth the following:
^^ Person to Whom Taxes on Real Estate shall be Assessed. — Formerly,
taxes on real estate were assessable to the person who was either the
owner or in possession thereof on the taxing day. By chapter 92 of the
Acts of 1936 the right to tax to the person in possession was stricken out.
It has been found by experience that there are certain instances when it is
desirable that the assessors should have the right to assess to the person
who is in possession, and it is therefore proposed to amend the law so as
to restore this right."
The draft of a bill submitted by the Commissioner to effectuate the
amendment of the law in accordance with this recommendation was re-
ported out by the Senate Committee on Taxation as Senate Bill No. 468,
and was passed by the Legislature as St. 1939, c. 175.
This chapter 175 substituted for section 11 of said chapter 59, as it
appeared when amended by said St. 1936, c. 92, a new section 11, which
again permitted assessment of real estate either to the owner or, when so
authorized by the Commissioner, to the person in possession.
As so amended, said section 11, as it now appears, in its applicable parts
reads :
"Taxes on real estate shall be assessed, in the town where it lies, to the
person who is the owner on January first, and the person appearing of
record, in the records of the county, or of the district, if such county is
divided into districts, where the estate lies, as owner on January first,
even though deceased, shall be held to be the true owner thereof; pro-
vided; that whenever the commissioner deems it proper he may, in writiiig,
authorize the assessment of taxes upon real estate to the person who is in
possession thereof on January first, and such person shall thereupon be held
to be the true owner thereof for the purposes of this section; and provided,
further, that whenever the commissioner deems it proper he may, in writing.
P.D. 12. 21
authorize the assessment of faxes upon any present interest in real estate to
the owner of such interest on January first, and taxes on such interest may
thereupon be assessed to such person ..."
In the light of the foregoing legislative history the context of the present
provisions of section 11 does not appear to indicate an intention upon the
part oi the Legislature in enacting it in its present form to authorize
assessment of real estate specifically exempted by other existing statutory
mandates but rather to make provision with exactitude as to those to
whom authorized assessments may be made.
It follows with regard to property of the Commonwealth, to which vou
refer, exempt Irom taxation by virtue of G. L. (Ter. Ed.) c. 59, § 5, cl (2)
that the Coinmis;sioner of C^orporations and Taxation derives no power
from said G. L. (Ter. Ed.) c. 59, § 11, to authorize the assessment of such
property to a person in possession.
II.
You have directed my attention to the fact that by G. L (Ter Ed)
c. o9, ^ 5, cl (2), exemption from taxation is accorded to ''propertv of the
commonwealth," with certain exceptions, one of which is described therein,
as lands m Boston known as the commonwealth flats, if leased for busi-
ness purposes . ." and you have asked my opinion as to whether cer-
tain flats ot the Cornmonwealth in Boston Harbor, in other districts than
m or near bouth Boston, are comprehended within the term ''lands in
Boston known as the commonwealth flats" as used in said section 5
1 am of the opinion that the words employed in the above-quoted por-
tion of said c. 59, § 5, cl. (2), to describe real property excepted from the
general exemption from taxation accorded property of the Commonwealth,
namely, lands m Boston known as commonwealth flats," apply onlv to
those flats or lands owned by the Commonwealth in Boston Harbor "in
or near j^outh Boston and known as the commonwealth flats at South
Boston and do not apply to other flats owned by the Commonwealth
in Boston Harbor.
Legislative history discloses the fact that while it was the legislative
intent that the Commonwealth flats at South Boston should, as an excep-
tion to the general rule apphcable to Commonwealth property be as-
sessable when leased for business purposes, the Commonwealth's property
m other parts of Boston Harbor, as elsewhere, should not be. Flats in
Boston Harbor in the vicinity of South Boston, developed under the
authority of St. 1868, c. 326, and St. 1869, c. 446, and as dTaKith £ein!
were described as ''the Commonwealth flats near South Boston" or as
the South Boston flats."
the^I?onf rTn^- "^1^% ^""^f owned by the Commonwealth and placed under
the control of the Board of Harbor and Land Commissioners by St. 1886,
I'] { but the land at or near South Boston continued to be dealt with
and described by the Legislature, in other enactments particularly, at
times as merely the "Commonwealth Flats" (see R. L , c 96 § 3)
^h.li hl'.voi^'.l^' ""K (2) provided that "property of the commonwealth
In ^QnT.TP Q ''"' taxation," with a certain exception not here material.
•^9^ } A , !u ^P/u""^ '^"'^'?^^ ^^"'<^' ^° Corcoran v. Boston, 185 Mass.
6^6, decided that this general provision of R. L., c. 12. 8 5 cl (2) "the
property of the Commonwealth shall be exempt from taxation," included
tr^XT'^'^^t^ ^^^' ^^ ^^"^^^ ^«'^^^' ^°^ «^e^ «^«h portions thereof
as might be in the possession of vendees.
22 P.D. 12.
To change the effect of this opinion of the Supreme Judicial Court and
to make certain that such parcels of the flats at South Boston as should
be leased for business purposes would be taxable by the City of Boston,
the Legislature enacted St. 1904, c. 385, which provided that:
"Section 1. The lands of the Commonwealth, situate in that part of
the city of Boston called South Boston and known as the Commonwealth
Flats, shall, if leased for business purposes, be taxed by the city of Boston
to the lessees thereof, respectively, in the same manner as the lands and
buildings thereon would be taxed to such lessees if they were the owners
of the fee, except that the payment of the tax shall not be enforced by
any lien upon or sale of the lands; but a sale of the leasehold interest
therein and of the buildings thereon may be made by the collector of
the city of Boston in the manner provided by law in case of non-payment
of' taxes for selling real estate, for the purpose of enforcing the payment
of the taxes by such lessees to the city of Boston assessed under the pro-
visions hereof."
When the Legislature enacted a new tax law in 1909, clause (2) of
R. L., c. 12, § 5, was re-enacted in full as St. 1909, c. 490, Pt. I, § 5, cl. (2),
and hkewise St. 1904, c. 385, as above set out, was also re-enacted in full
and was included in such law as St. 1909, c. 490, Pt. I, § 12.
In the codification of the statutes as the General Laws of 1921, St.
1909, c. 490, Pt. I, § 12, was not set out therein by the Commissioners for
Consolidating and Arranging the General Laws because, as they said in
their preliminary report, page 101, "it apphes only to the Commonwealth
Flats in Boston. We therefore intend to omit it as special legislation."
The exception of the South Boston flats when leased for business pur-
poses from the exemption from taxation of lands owned by the Common-
wealth as set forth in St. 1909, c. 490, Pt. I, § 12, was referred to in G. L.
(1921), c. 59, § 5, cl. (2d), so that, as codified, it provided:
"Section 5. The following property and polls shall be exempt from
taxation :
Second, Property of the commonwealth, except real estate of which the
commonwealth is in possession under a mortgage for condition broken,
lands in Boston known as the commonwealth flats, if leased for business
purposes, ..."
By this codification, St. 1909, c. 490, Pt. I, § 12, was not repealed (see
G. L. (1921), c. 282), and in part was added to c. 59, § 5, cl. (2d), as set
out above, and R. L., c. 96, § 3, which was codified as G. L. (1921), c. 91,
§ 2, continued to speak of the "land at and near South Boston known as
the Commonwealth flats."
• Under Res. 1916, c. 43, the Commissioners for Consolidating and Ar-
ranging the General Laws were required to submit any substantive changes
in the law, even to correct a mistake, omission, inconsistency or imperfec-
tion, or any repeal because of redundancy or obsolescence, to the Legis-
lature for action before their final report was submitted. No such changes
in respect to the Commonwealth flats were proposed.
From the foregoing it appears that the Legislature intended to make
no change in the meaning of G. L. (Ter. Ed.) c. 59, § 5, cl. (2), and that
the exception to the exemption in the present form of the statute, as
previously was intended to apply only to the land or flats near South
P.D. 12. 23
Boston known as the Commonwealth Flats. Since this codification, no
change has been made in the applicable statute.
It follows that flats of the Commonwealth situated in Boston Harbor,
other than the land or fiats near South Boston known as the Common-
wealth Flats, are still exempt from taxation, and the Commissioner of
Corporations and Taxation has no right to authorize the assessment of a
tax upon the owner of a portion thereof by virtue of G. L. (Ter. Ed.)
c. 59, § 11, as amended by St. 1939, c. 175.
Very truly yours,
Robert T. Bushnell, Attorney General.
Licenses — Lobsters and Crabs in Coastal Waters — Qualifications of
Licensees.
Feb. 8, 1943.
Hon. Raymond J. Kenney, Commissioner of Conservation.
Dear Sir: — You have directed my attention to that portion of G. L.
(Ter. Ed.) c. 130, § 38, as amended by St. 1941, c. 598, which provides for
the granting of licenses to take lobsters and crabs from the coastal waters
of certain counties. This section provides that such licenses
"shall be granted only to individuals who are citizens of the common-
wealth and ivho have resided therein for at least one year next preceding the
date of such hcense, ..."
With relation to the quoted provision j'ou have asked me if continuous
residence for the period mentioned in the statute is a prerequisite to the
granting of a license.
I am of the opinion that it is.
The subject matter of the enactment and the words employed by the
Legislature, "who have resided therein for at least one year next preceding
the date of such license," naturally import a requirement of continuous
residence.
The phrase "next preceding," modifying the words "for at least one
year," denotes a period of a year, all of which falls within twelve months
immediately before the granting of the license. See State v. Hamilton,
74 Kan. 461, 465.
As showing the legislative intent in this respect, in later portions of the
same section specific provision has been made with relation to a license
for "a non-resident citizen of the United States, temporarily residing or
intending temporarily to reside in any coastal city or town."
You have set forth different states of fact and have asked my opinion
as to whether a citizen living under them in Massachusetts for a year
could be said to have "resided" in the Commonwealth as the quoted
word is used in said section 38.
The question of residence is commonly one of fact (Russell v. Holland,
309 Mass. 187, 191) and is to be determined in any particular instance
by weighing all the circumstances connected with a person's place of
abode. As a matter of law, a person may be said to be a resident of that
place where he hves or, as it is sometimes expressed, makes his home or
has a place of abode, and, as the Supreme Judicial Court has phrased it,
"with no present intention of definite and early removal and with a pur-
pose to remain for an undetermined period, not infrequently but not
necessarily combined with a design to stay permanently" (Jenkins v.
North Shore Dye House, Inc., 277 M^ss. 440, 444).
24 P.D. 12.
A person's intention in this respect might be gathered in part from the
existence of such facts as you have mentioned in your letter, namely,
voting, being assessed and paying taxes, and registering a boat at a par-
ticular place in the Commonwealth. Such facts alone, however, would
not be conclusive as to his intent to make such place his residence. If he
supported his wife and children in an establishment elsewhere at which
he visited "for months at a time," as you have suggested, it could not
necessarily be said of such a person upon a consideration of the foregoing
facts that he "resided" at a particular place in the Commonwealth.
Very truly yours,
Robert T. Bushnell, Attorney General.
Registration of Hairdressers — Department Store — Multiple Beauty Shops
— Registration and Fee for Each Shop.
Feb. 8, 1943.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam : — The Board of Registration of Hairdressers through
you has asked my opinion as to whether a department store which oper-
ates more than one beauty shop within its walls should be required to
register and pay a registration fee for each shop.
I am of the opinion that each shop so operated should be registered
separately and a fee paid for each, if each is in fact separate and distinct
from any other shop operated in the same building.
The applicable statutory provision (G. L. (Ter. Ed.) c. 112, § 87AA)
reads :
"The board may authorize one or more registered hairdressers or any
person employing one or more registered hairdressers, upon payment to
the board of a shop registration fee»of ten dollars, to operate a registered
shop, and such person or persons may thereafter operate such shop upon
payment annually of a shop registration renewal fee of five dollars; pro-
vided, that in the case of a shop conducted solely by a hairdresser owning
the same, the shop registration fee and shop registration renewal fee
shall each be two dollars. The owner of such shop shall not employ for
hire or allow any hairdresser, operator or manicurist, to work in the shop
unless registered in accordance with sections eighty-seven T to eighty-
seven J J, inclusive."
The word "shop" as used in chapter 112, sections 87T to 87 JJ, is de-
fined in section 87T as follows :
"'Shop,' a beauty shop to which customers come for hairdressing and
cosmetology."
Whether in a particular instance two or more such shops under the
same ownership, located in the same store or building, are separate and
distinct shops independent of each other or are merely parts or divisions
of a single shop, is a question of fact to be determined by a consideration
of all the circumstances and conditions surrounding the establishments
and their modes of doing business. The fact that the common owner of
the shops is a department store, on the premises of which they are oper-
ated, does not of itself determine the question. That is only one fact to
be considered. A determination of all relevant subsidiary facts should
be made by you in order to reach a correct conclusion as to the main ques-
tion. The Attorney General does not pass upon questions of fact.
P.D. 12. 25
Do the various stores have the same or different managers and em-
ployees? Are they located near each other or far apart? Do they each
have separate, distinct and complete equipment or do they use equip-
ment in common? The answers to these questions of fact, and to other
similar questions which will suggest themselves to you, will aid you in
coming to a correct conclusion as to whether any particular shops in a
specified store are separate entities which should be registered individ-
ually or whether they are only parts or divisions of a single shop as to
which only one registration should be required.
\"ery trul^y yours,
Robert T. Bushnell, Attorney General.
State or Military Aid — Reimbursement of Municipalities — Certification
by Municipal Officers.
Feb. 8, 1943.
Hon. Paul W. Foster, Chairman, Commission on Administration and
Finance.
Dear Sir : — You have directed my attention to the provisions of
G. L. (Ter. Ed.) c. 115, § 15, which relate to reimbursement of munici-
palities by the Commonwealth for moneys e.xpended by them for state or
mihtary aid.
G. L. (Ter. Ed.) c. 115, § 15, provides that:
"The full amount expended for state or miHtary aid by any town,"
together with certain specified data relative to the persons to whom such
aid was granted, "and such other details as the commissioner (Commis-
sioner of State Aid and Pensions) may require, shall, within the first ten .
days of the month following the month in which the expenditure was
made, be certified, on oath, bj^ the mayor, treasurer and commissioner of
soldiers' relief and state and military aid or corresponding oflEicer, or if
there is no such commissioner or officer, the city clerk of any city or a
majority of the selectmen of any town disbursing the same, to said com-
missioner on blank forms provided by him, and in a manner approved
by him. . . ."
The Commissioner is required to examine the certifications and endorse
thereon such amounts as he finds have been paid and reported according
to the provisions of said chapter 115, and to transmit them to the State
Comptroller, and decide upon the amounts properly to be paid for re-
imbursement in each instance. It is further provided that —
"none of the expenses attending the payment of state or military aid,
shall be reimbursed by the commonwealth to the several towns on or
before November tenth in the year after such expenditure."
You have asked me whether payments by the Commonwealth to cities
and towns for reimbursement under section 15 have been validly made
in instances where the municipality has not certified the amount expended
for state or military aid ^^ within the first ten days of the month following
the month in which the expenditure was made," but has filed such cer-
tificates and the data required by section 15 later than the date set forth
in said section.
I am of the opinion that the fact that such certificates were not filed
OD or before the date mentioned in said section 15 does not render invalid
payments made in reimbursement under said section.
26 P.D. 12.
The provision of the statute requiring that certificates "shall" be filed
within a certain definite period places a duty upon municipal officials
which they should fulfill. But it is not mandatory that this be done
within the time stated. The time fixed for filing certificates is directory
and not mandatory; otherwise, it would be possible for a municipal
officer, through carelessness or otherwise, to defeat the operation of the
statute and prevent reimbursement by the Commonwealth to munici-
palities. This would be contrary to the purpose of the Legislature in
enacting this legislation. See Liberty Mutual Ins. Co. v. Acting Commis-
sioner of Insurance, 265 Mass. 23, 28, 29. Had the Legislature intended
that failure to comply with the requirements of the statute with relation
to the date of filing certificates should act as a bar or in a manner similar
to a statute of limitations to prevent the reimbursement which it con-
templated, it would doubtless have expressed such intention in language
of unmistakable import, for there is nothing in the context of the statute
to suggest that the time within which the municipal officers are to act is
of the essence of the transaction between the cities and towns and the
Commonwealth, or that the latter will be prejudiced in any manner if
the certificates and data are not received from the municipalities pre-
cisely within the period set forth in the statute.
As has been said by the Supreme Judicial Court in Torrey v. Millhury,
21 Pick. 64, 67, respecting the meaning of "shall":
"... many regulations are made by statute, . . . intended to promote
method, system and uniformity in the modes of proceeding, the compliance
or non-compliance with which, does in no respect affect the rights of , . .
citizens. ..."
Again, in Swift v. Registrars of Voters, 281 Mass. 271, 276, the Supreme
Judicial Court has said:
"The word 'shall' as used in statutes, although in its common meaning
mandatory, is not of inflexible signification and not infrequently is con-
strued as permissive or directory in order to effectuate a legislative pur-
pose. Cheney v. Coughlin, 201 Mass. 204. Rea v. Aldermen of Everett,
217 Mass. 427, 430."
The legislative intent shown in the dominant purpose disclosed by the
enactment of section 15 as an entirety was to provide for reimbursement
by the Commonwealth to municipalities of moneys paid by them for
state or military aid. In view of such manifest intent no such effect can
properly be given to the word "shall" in the phrase "shall, within the
first ten days ... be certified," as would render non-compliance with
the requirement for filing certificates within a certain period of time
destructive of the legislative purpose and manifest intent of the enact-
ment.
^ Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Safety — License or Certificate for Use — Special
Halls — Occasional Performances.
Feb. 10, 1943.
Capt. John F. Stokes, Acting Commissioner of Public Safety.
Dear Sir : — You have laid before me a copy of a letter which you
received from the City Solicitor of Springfield, with relation to the issuance
P.D. 12. 27
of a license or certificate for the use of the Springfield Municipal Audi-
torium as a "special hall."
You have asked me whether the definition of "special hall" in G. L.
(Ter. Ed.) c. 143, § 1, as last amended by St. 1941, c. 694, includes a hall
used for occasional performances for the entertainment of spectators at
any time, with the use of scenery, or whether the words "with the use of
scenery" are limited to continuous performances given in such hall be-
tween June 20th and September 20th.
I am of the opinion that the words "with the use of scenery" are not
limited to such continuous performances but apply as well to occasional
performances given in such hall at various times throughout the year.
The definition in question in G. L. (Ter. Ed.) c, 143, § 1, as amended,
reads as follows:
"'Special hall', a building or part thereof containing an assembly hall
with a seating capacity of more than four hundred which ma}^ be used
for occasional performances for the entertainment of spectators, or, with
the approval of the department, for continuous performances for the
entertainment thereof in any year between June twentieth and September
twentieth, with the use of scenery, under such conditions as the licensing
officer shall direct, and for public gatherings."
Prior to the amendment of said section 1 by St. 1941, c. 694, the defini-
tion of "special hall" read as follows:
"'Special hall', a building or part thereof containing an assembly hall
with a seating capacity of more than four hundred which may be used
for occasional performances for the entertainment of spectators, with
the use of scenery under such conditions as the licensing officer shall
direct, and for public gatherings."
The amending act of 1941, chapter 694, struck out the definition as it
stood in section 1 of said chapter 143, as above set forth, and inserted in
place thereof a new definition in the form first above quoted. The older
form defined a "special hall" as one "which may be used for occasional
performances for the entertainment of spectators, with the use of scenery."
The amending statute of 1941 re-enacted the older definition, merely add-
ing thereto the language descriptive of a use for continuous performances
between June 20th and September 20th. The phrase "with the use of
scener}^" was retained in the new definition and from the mode of em-
ployment of those words it does not appear to have been the intent of
the Legislature that they should be apphcable only to the "continuous
performances" provided for by the new definition and not, as previously
used, to occasional performances as well.
You have also asked me specifically whether it is legal for the Depart-
ment of Pubhc Safety to issue a "special hall" certificate to an assembly
hall with a seating capacity of more than 400, which may be used for
occasional performances for the entertainment of spectators, with the use
of scenery, at times during the year other than between June 20th and
September 20th.
G. L. (Ter. Ed.) c. 143, § 52, provides that no person shall occupy or
use any "special hall" until a license has been issued by the Commis-
sioner of Public Safety or a certificate therefor by an inspector of the
department, or a license by the Mayoi" of Boston or a certificate by an
inspector of the building department of Boston when the "special hall" is
in the last-named citv.
28 P.D. 12.
For the reasons which I have already set forth it is, in my opinion,
legal to issue a certificate for the use of an assembly hall, such as you have
described as a "special hall", with the use of scenery, at times during the
year other than between June 20th and September 20th.
In view of the fact that the letter from the City Solicitor to you, with
relation to the Springfield Municipal Auditorium, indicates that a license
or certificate has been previously issued for use of said auditorium as a
"pubhc hall", I feel I should call to your attention the fact that I am of
the opinion that the same auditorium cannot hold two licenses, one for
use as a "public hall" and the other for use as a "special hall". In view
of the fact that a "public hall" is defined in said chapter 143, section 1,
as any building "used for public gatherings and for such entertainments,
not requiring the use of scenery and other stage appliances, as the licensing
officer may approve," a place of assembly falling under this definition
cannot at the same time properly be said to fall within the definition of
a "special hall" which I have already quoted, more particularly as a
"special hall" is one used for occasional performances only, with a certain
exception — with the use of scenery.
The issuance of a license to a place of assembly as a "public hall" would
seem to be incompatible with the issuance of a license to it as a "special
hall".
Accordingly, if you contemplate granting a license or having a cer-
tificate issued to the said auditorium as a "special hall," in my opinion,
before so doing you should revoke the license already issued to it as a
"public hall". When that has been done you may legally issue a license
to the auditorium as a "special hall" if, in your judgment, it is proper
so to do.
The applicable statutes do not provide for the issuance of a temporary
license as a "special hall," as was suggested in the letter which you have
shown me.
Very truly yours,
Robert T. Bushnell,^ ^forney General.
Auditor — Right to Examine Records of Division of Civil Service.
Feb. 23, 1943.
Hon. Thomas J. Buckley, State Auditor.
Dear Sir: — You have asked my opinion "as to the right of" the
Department of the Auditor "to examine certain financial records of the
Division of Civil Service."
The only information which you have given me as to the nature of the
"certain financial records" to which you refer is as follows:
"The financial records to which I refer particularly are documents
which support payments amounting to thousands of dollars b}^ that Divi-
sion for personal services in connection with various examinations held
by that Division and payments for the markings of papers as the result
of these examinations. The financial records which we have already
examined indicate only that payments have been made to certain indi^
viduals for this type of work. We are unable from the records submitted
to tie these payments up with any other records which prove that such
duties were actually performed. In view of the large sum of money in-
volved, I consider this further check to be extremely advisable."
P.D. 12. 29
Without definite and complete information, it is impossible for me to
determine whether or not the records to which you refer are such as may
come within the scope of an audit authorized to be made by vou under
G. L. (Ter. Ed.) c. 11, § 12, as amended.
The applicable portion of said section 12, with relation to the authority
of the State Auditor and his department, reads :
"The department of the state auditor shall annually make a careful
audit of the accounts of all departments, offices, commissions, institutions
and activities of the conunon wealth, including those of the income tax
division of the department of corporations and taxation, and for said
purpose the authorized officers and employees of said department of the
state auditor shall have access to such accounts at reasonable times and
said department may require the production of books, documents and
vouchers, except tax returns, relating to any matter within the scope of
such audit. ..."
As was said in an opinion of a former Attorney General to the then
Auditor, Attorney General's Report, 1931, 94, 95:
"Authority to audit, as the word 'audit' is ordinarily used and as it is
employed in G. L., c. 11, § 12, as amended, does not import 'power to
make a complete and independent investigation of conditions which might
be disclosed in the course of an examination of the accounts.' "
From the paragraph of your letter quoted above, I take it that invoices
indicating sums paid by the Division of Civil Service for the marking of
examination papers, names of persons to whom these amounts were paid,
and endorsed checks or other evidences of the receipt of such payments
by persons indicated have been examined by you.
You have submitted no factual information from which it would appear
that you have any further duties to perform under the statute with rela-
tion to the making of this audit.
Very truly yours,
Robert T. Bushnell, Attorney General.
Auditor — Right to Examine Records of Division of Civil Service.
March 8, 1943.
Hon. Thomas J. Buckley, Auditor of the Commonwealth.
Dear Sir: — You have informed me with relation to a certain depart-
ment of the State service that your "accountants found expenditures
amounting to many thousands of dollars, and all the vouchers show is
that certain sums of money were paid by that department to various
individuals. In other words, what we wish to do is tie up the checks given
in payment ivith the actual work performed ..." You have asked me
whether this data should be made available to your department.
You have not advised me what "data" you wish the Division of Civil
Service to make available to you. If by the phrase "tie up the checks
. . . loith the actual work performed" you mean that you desire to ascer-
tain whether expenditures made by the Division of Civil Service conform
to your interpretation of how that Division should discharge the duties
required of it by the Legislature, it is my opinion that the Division of
Civil Service is not required to make such "data" available to you for
30 P.D. 12.
such a purpose. Such a purpose is, in my opinion, not included within
the scope of an audit authorized to be made by you under the provisions
of G. L. (Ter. Ed.) c. 11, § 12, as amended.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Labor and Industries — Records of Women and Minors
Kept hy Employers under G. L. {Ter. Ed.) c. 151, § 15.
March 8, 1943.
Hon. James T. Moriarty, Commissioner of Labor and Industries.
Dear Sir : — You have asked my opinion as to whether or not you
may grant permission to an employer of women and minors to keep the
records relative to such employees, which the employer is required to keep,
under the provisions of G. L. (Ter. Ed.) c. 151, § 15, in microfilm form.
I am of the opinion that you have no duty in the premises and hence
no authority to grant such permission.
G. L. (Ter. Ed.) c. 151, § 15, as amended by St. 1937, c. 401, reads:
"Every employer of women and minors shall keep a true and accurate
record of the name, address and occupation of each such employee, of
the age of each minor, of the amount paid each pay period to each woman
and minor, of the hours worked each day and each week by each woman
and minor, and such other information as the commissioner in his discretion
shall deem material and necessary. Such records shall be kept on file for
at least one year after the entry date of the record. Such records shall be
open to the inspection of the commissioner or his authorized representa-
tives at any reasonable time, and they shall have the right to make a
transcript thereof. Every employer shall furnish to the commissioner, or
his authorized representative, on demand, a sworn statement of such
record, and, if the commissioner shall so require, upon forms prescribed
or approved by him."
Under the provisions of this section the duty of keeping the required
record rests upon the employer and no authority is vested in the Com-
missioner of Labor and Industries to designate the form in which it shall
be kept. The employer may keep the record in any form which meets
the requirements of the statute. You have authority to require the em-
ployer to keep in the record, in addition to the information designated by
section 15, "such other information as the commissioner in his discretion
shall deem material and necessary." The employer is required to furnish
you with a sworn copy of the record on demand, and as to the copy of the
record you have a right to prescribe the form upon which it shall be set
forth, but 3^ou are not vested with any authority to prescribe the form in
which the employer's original record shall be kept.
It follows that you are .charged with no duty to give or withhold per-
mission for the keeping of the original record in any particular manner.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 31
Bridges — Dui7j — Requirements as to Maintenance of Bridge — Weight
of Load.
March 9, 1943.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You have asked my opinion upon three questions rela-
tive "to the responsibiUty of state and municipal authorities in the matter
of the maintenance of bridges on public ways."
Your first two questions are :
1. "Under section 34 (of G. L. c. 85) are the authorities having control
of a bridge on a public highway required to maintain the bridge so that
it will safely carry a vehicle and load weighing at least six tons?
2. Under section 35 (of G. L. c. 85) are the authorities in control of a
bridge required to maintain the bridge so that it will safely carry the
maximum weight of load determined by the Department?"
I answer both these questions in the affirmative.
G. L. (Ter. Ed.) c. 85, §§ 34 and 35, read:
"Section 34. Except as otherwise provided in the following section,
the department, person or local authorities having control of any bridge
on any road may maintain notices at each end of such bridge legible at a
distance of fifty feet, stating the maximum weight of vehicle with load
which the bridge will safely carry to be six tons or over.
"Section 35. No bridge on a public highway having a span in excess
of ten feet, except a bridge constructed under the provisions of chapter
one hundred and fifty-nine, shall be constructed or reconstructed by any
county or town except in accordance with plans and specifications therefor
approved by the department. Said department shall approve or alter to
meet its approval all such plans submitted to it and shall determine the
maximum load which any such bridge may safely carry, and the depart-
ment or the local authorities having control of such bridge may maintain
notices at each end thereof, legible at a distance of fifty feet, stating the
maximum weight of vehicle with load which the bridge will safely carry.
The owner of a vehicle operated on any bridge posted under this or the
preceding section shall be responsible for all damage resulting thereto if
the weight of the vehicle and load exceeds the maximum load as posted
under this or the preceding section, as the case may be, and the amount
of the damage may be recovered in an action at law by the person or
authorities charged with the maintenance of the bridge. Any person
operating a vehicle, the weight of which with its load exceeds the maxi-
mum weight as posted under this or the preceding section, that causes
damage to a bridge so posted shall be punished by a fine of not more than
two hundred dollars."
Neither of these sections sets forth specifically the supporting capacity
required of the types of bridges referred to therein.
The bridges referred to are those forming parts of public ways and, as
is the case in all parts of such ways, the duty rests upon the authorities
having control over them to use due care to maintain them in a condition
which is reasonably safe and convenient for the uses and purposes for
which they were intended and designed. Gregory, Administrator, v.
Inhabitants of Adams, 14 Gray 242, 246; Post v. Boston, 141 Mass. 189.
The provisions of said sections 34 and 35 do not directly impose any
duties upon such authorities with relation to the maintenance of bridges.
32 P.D. 12.
They permit but do not require the posting of certain notices which, if
posted, fix Hability upon the owner of a vehicle for damage to a bridge
caused bj^ excessive weight of such vehicle. Read in connection with the
last sentence of G. L. (Ter. Ed.) c. 84, § 15, concerning recovery for de-
fects in a way or bridge, said sections 34 and 35 by implication impose
duties upon such authorities with relation to the maintenance of bridges.
The said sentence reads:
"No action shall be maintained under this section by a person the com-
bined weight of whose carriage or vehicle and load exceeds six tons."
There thus appears from the context of section 15 of chapter 84 and
section 34 of chapter 85 to be a legislative declaration that the use of ways
and bridges by vehicles and loads not exceeding six tons is a common and
ordinary use which may fairly be required to be borne by such structures
in the usual course. By necessary implication a duty rests upon such
authorities to maintain bridges so that they will have a minimum carr3dng
capacity of at least six tons. Moreover, when under the terms of said
section 35 the Department of Public Works has determined that a particu-
lar bridge having a span in excess of ten feet has a maximum carrying
capacity greater than six tons, since the public is advised of such de-
termination and may act in reliance thereon, there arises by implication
a duty on the part of the authorities to maintain that bridge at the maxi-
mum carrying capacity so determined.
The establishment of permissible maximum weight carries with it a
public duty to maintain highways and bridges in a safe condition for the
passage over them of such weight. Ansell v. Boston, 254 Mass. 208, 212.
The provisions of G. L. (Ter. Ed.) c. 84, § 16, which relieve those
charged with the duty of keeping in repair a bridge which is more than
fifty feet from one abutment pile or trestle to another, from liability for
damages sustained through the breaking of such bridge, by one transport-
ing over it without permission a load exceeding forty-five hundred pounds
in weight exclusive of the team or vehicle, do not alter the implied duty
to maintain the carrying capacity of a bridge forming part of a public
way at the figure posted, or, if there is no posting, at the figure deter-
mined under section 35, and, in the absence of a determination and of
posting, at a minimum carrying capacity of six tons. The duty to main-
tain a bridge, arising by imphcation from G. L. (Ter. Ed.) c. 84, § 15, and
c. 85, § 34, so that it has a carr3dng capacity of six tons, applies to
all highway bridges including those mentioned in said section 16 of
chapter 84.
This is made plain by the fact that prior to the enactment of St. 1931,
c. 426, § 201, said section 16 of chapter 84, in addition to its peculiar
provisions relieving the keeper of a bridge designed for a wide stream,
contained a provision similar to that now in said section 15, to the effect
that no action for damages "shall be maintained by a person whose car-
riage and the load thereon exceed the weight of six tons." Section 200 of
said chapter 426 restored the present last sentence of said section 15: —
"No action shall be maintained under this section by a person the com-
bined weight of whose carriage or vehicle and load exceeds six tons" to
section 15 of chapter 84, from which it had been omitted in the compila-
tion of the General Laws of 1921.
Prior to the compilation of the General Laws of 1921, the sections of
the statutes from which sections 15 and 16 of chapter 84 derive each
contained similar provisions with respect to non-liability for damage to a
P.D. 12. 33
vehicle and load exceeding six tons. (Gen. St. 1917, c. 344, Pt. 4, § 24;
Ft. 5, §38,R. L.,c.51, §18; c.52, §31; Pub. St., c. 52, § 18; c. 108, §5).
Your third question is :
3. "What is the minimum carrying capacity of a bridge which the
authorities in control thereof are required to maintain?"
As indicated, the minimum carrying capacity required to be maintained,
when there has been a determination under section 35, may be not less
than the figure so determined. In no case may it be less than six tons.
It would appear to have been the intent of the Legislature, in enacting
the provisions now embodied in section 16, to relieve those required by
law to keep a bridge from liability for damages occasioned by the breaking
of a bridge over a wide stream, not to reduce the minimum carrying capac-
ity at which such bridge should be maintained. These provisions are for
the benefit of the keeper of such a bridge. They restrict the use which
may be made of it to guard against possible accidents even upon a bridge
of a six-ton capacity where such bridge is built over a wide stream. They
were not intended to afford the keeper of the bridge a right to maintain a
bridge with a carrying capacity of less than six tons.
Very truly yours,
Robert T. Bushnell, Attorney General.
Governor — Commander in Chief of the State Guard — Participation of the
State Guard in a Plan of the United States Military Authorities for
the Protection of the Commonwealth.
March 12, 1943.
His Excellency Leverett Saltonstall, Governor of the Commonwealth.
Sir: — Under date of March 9, 1943, following a conference on Febru-
ary 24, you asked my opinion as to whether you as "Commander in Chief
of the State Guard," may provide for the participation of that organiza-
tion in a plan designed for the defense of the Commonw^ealth, known as
the ABC Plan. This plan has been promulgated by the United States
military authorities and provides for the co-operation of the State Guard
and Federal troops in the event of an invasion or threatened invasion of
New England by enemy forces.
In a letter dated February 18, 1943, directed to Major General Miles,
commanding the first Service Command, you stated that "I therefore
approve of the principles and purposes of the ABC Plan, and will do every
thing in my power as Governor and as Commander-in-Chief of our State
Guard to work in conjunction with you in putting it into immediate
effect."
I am of the opinion that your agreement, as indicated in this letter to
General Miles, is a proper one and that the provision, as called for thereby,
for the participation of the State Guard in the ABC Plan for the defense
of the Commonwealth, is within your, authority.
The duties of the Governor as Commander in Chief of the military
forces of the Commonwealth are set forth in G. L. (Ter. Ed.) c. 33, as
amended. By section 17 the Commander in Chief is empowered to "call
out the organized militia to repel an invasion . . ."
The statute contemplates that the Commander in Chief shall retain
the command of the organized militia when it has been so called out
because he is authorized to employ it for various purposes (§§ 18, 19).
34 P.D. 12.
The Commander in Chief may not delegate his supreme responsibihty
and authority over the mihtia. which have been vested in him by the
Constitution (Mass. Const. Amend. Art. LIV), but he may delegate the
performance of many of the duties of his position to subordinate officers,
the necessity for whose existence is recognized by the Constitution (Mass.
Const. Amend. Art. LIII) and whose functions are prescribed by the
Legislature in said chapter 33.
It is true that the Supreme Judicial Court in Opinion of the Justices,
8 Mass. 548, stressed the lack of constitutional authority in any but the
Governor or officers appointed by him to command the militia when it
had not been mustered into the service of the United States. This opinion
undoubtedl}^ still expresses the law of the land in situations similar to
those as to which it was rendered. In my judgment, this opinion, rendered
in the year 1812, presents no legal obstacle in the year 1943 to action by
the Commonwealth of Massachusetts in full concert with federal military
authorities in the execution of a plan for the protection of this area in the
event of invasion under the circumstances of the present war.
Under the provisions of the ABC Plan as I read them, the State Guard
is to remain under the command of its own officers appointed by the
Governor. The plan appears to have been so drawn as to distinguish
carefully between federal and state officers in the exercise of their proper
and distinctive duties.
One of the characteristics of what is called the "total" war in which
we are now engaged is the speed with which the enemy may be able to
strike. Invasion of this area in one form or another is not improbable.
It is plain that the orderly and effective defense of this State against
invasion requires a complete and detailed plan to be drawn in advance
and to be carried out if the emergency should occur.
The acceptance of the plan by the Governor as Commander in Chief
and his giving of appropriate orders to the State Guard, requiring it to
act in accordance with the plan, do not constitute an abrogation of his
authority. The following out of the plan in the future by the State Guard,
if it should become necessary by reason of a threatened invasion, is effected
by his command alone. The plan derives its force as to the State Guard
only by virtue of his authority, and will be followed out by the Guard
only in obedience to his orders. The plan goes into effect on the occur-
rence of a certain circumstance, namely: the giving of an "alert" or
warning signal by the federal officer commanding the United States
forces. It goes into effect, as far as the State Guard is concerned, because
of prior commands given to the Guard by the Governor, not by force of
any command to the Guard by a federal officer.
After the plan goes into effect, the Guard, in accordance with the prior
command of the Governor, carries out the plan which the Governor had
already approved, by taking up certain positions which have already been
designated in such plan, and the Guard acts at all times only under the
orders of its own officers. It carries out certain movements or tasks,
called "missions" in the plan, but at all times under the command of its
own officers only, from whom alone the Guard and the individual members
thereof take orders.
The Commander in Chief in no way cuts himseK off from his authority
to command the State Guard. He adopts the plan as a practical and
eminently essential mode for the operation of his forces so as to aid those
of the Federal Government who are charged with the defense of this
area of the United States in a threatened invasion.
P.D. 12. 35
Under this plan the State Guard acts in concert with the Army of the
United States. It acts, however, at the command of the Governor and
is to proceed in accordance with a plan which the Governor of the Com-
monwealth has accepted and adopted as his own.
Very trul}'^ 3^ours,
Robert T. Bushnell, Attorney General.
State Board of Retirement — Eligibility for Retirement of OJficer While on
Leave of Absence in Naval Service.
March 19, 1943.
Hon. Francis X. Hurley, Chairman, State Board of Retirement.
Dear Sir: — You have informed me that on April 8, 1942, an officer
of the Division of State PoUce obtained a leave of absence for the purpose
of serving in the naval forces of the United States; that this officer en-
tered the service of the Division on January 3, 1922; and that he arrived
at the age of fifty on December 23, 1942, during his term of duty in the
naval forces, which is still in effect.
You have asked me whether this officer is now eligible for retirement.
I am of the opinion that the officer is now eligible for retirement irre-
spective of the fact that he is in the naval forces.
G. L. (Ter. Ed.) c. 32, § 680 as amended by St. 1939, c. 503, provides:
" (1) An officer who has performed service in the division of state
police in the department of public safety for not less than twenty years
shall be retired b}^ the state board of retirement upon attaining age fifty,
or upon the expiration of such twenty years, whichever last occurs.
(2) An officer who has performed service in said division for not less
than twenty years and has not attained age fifty 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 he is physically or mentally
incapacitated for the performance of duty, and that such incapacity is
likely to be permanent.
Amount of Allowance.
(3) Upon retirement under paragraph (1) or paragraph (2) of this sec-
tion, the officer shall receive a retirement allowance consisting of:
(a) A life annuity as provided in said section four G; and
(b) A pension of such amount as will, together with the life annuity
set forth in paragraph (1) (a) of section four G, be equal to one half of
his average annual rate of regular compensation during the five years im-
mediately prior to the date of his retirement."
From the information which you have given me it appears that this
officer completed twenty years of service in the Division of State Police
on January 3, 1942, before entering the United States forces, and that
while in the Federal service he attained the age of fifty.
Section 68C requires that an officer of the Division of State Police
shall be retired when he has served therein for twenty years and has also
attained the age of fifty, "whichever last occurs." In the present case
the attainment of age fifty occurred last and the date at which he became
fifty was December 23, 1942. Upon the last-named date he became eligible
for retirement.
36 P.D. 12.
As he had completed twenty years of service in the division before
entering upon the leave of absence provided by St. 1941, c. 708, § 1, for
those leaving the state service "for the purpose of serving the military or
naval forces of the United States," his attainment thereafter of fifty years
of age rendered him eligible for retirement under the provisions of said
section 68C.
The provisions of St. 1941, c. 708, §§ 8 and 9, are not appHcable to
the present case. They prohibit the termination of membership in a
contributory retirement system by reason of separation from the state
service of an employee or officer for the purpose of entering the military
or naval forces of the United States, and also prohibit withdrawal of
contributions to a retirement system during the period of such a separa-
tion. Those provisions also protect the employee or officer from loss of
creditable service or loss of the benefit of contributions which he would
otherwise have made to the system if he had not been upon such a leave
of absence.
Inasmuch as the state police officer in the present case had completed
the requisite twenty years of service before obtaining the leave of ab-
sence, there was no loss of creditable service due to such leave. As the
Commonwealth, under the provisions of section 68C (3) (6), is required
to pay to a retired state police officer a pension of such amount as will,
together with the life annuity which is created by an officer's own con-
tributions, "be equal to one half of his average annual rate of regular
compensation during the five years immediately prior to the date of his
retirement," irrespective of how small the annuity may be, the officer's
retirement allowance is not lessened by the fact that he has been on a
leave of absence and therefore has made no contributions to the fund
himself since April 8, 1942.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Correction — Authority of County Commissioners to Close
Jail and House of Correction at Pittsfield.
March 22, 1943.
Hon. Arthur T. Lyman, Commissioner of Correction.
Dear Sir : — You have informed me that the County Commissioners
of Berkshire County desire to close the jail and house of correction at
Pittsfield for the duration of the war to save expense and "in order to
make use of the manpower, both inmate and employee, in the successful
prosecution of the war." I am advised that this jail and this house of
correction are the only institutions of their kind provided for Berkshire
County by its Commissioners.
You have requested my opinion as to whether or not the County Com-
missioners have authority to close these institutions during the period of
the present emergency.
Although it does not appear that the Commissioner of Correction is
required to take any action in connection with the subject matter of
your request, inasmuch as county penal institutions are provided for the
benefit of the Commonwealth as a whole as Avell as for that of the coun-
ties themselves, I am complying with your request.
I am of the opinion that if the Commissioners of Berkshire County
consider it desirable or expedient to close the institution to which you
refer, specific legislative authority should be sought for such action.
P.D. 12. ~ 37
G. L. (Ter. Ed.) c. 34, § 3, reads:
"Each county shall provide suitable court houses, jails, houses of cor-
rection, fireproof offices and other public buildinf];s necessary for its use,
and suitable acconnnodations for district courts, except that the county
of Dukes need not provide a house of correction, and that Boston shall
provide necessary public buildings for Suffolk County."
G. L. (Ter. Ed.) c. 126, § 4, reads:
"Jails shall be used for the detention of persons charged with crime
and committed for trial, committed to secure their attendance as wit-
nesses upon the trial of criminal causes, committed pursuant to a sen-
tence upon conviction of crime or for any cause authorized by law, or
detained or committed by the courts of the United States."
G. L. (Ter. Ed.) c. 126, § 8, reads:
"The county commissioners in each county, except Dukes, shall at the
expense of the county provide a house or houses of correction, suitably
and efficiently ventilated, with convenient yards, workshops and other
suitable accommodations adjoining or appurtenant thereto, for the safe
keeping, correction, government and employment of offenders legally
committed thereto by the courts and magistrates of the commonwealth
or of the United States."
The Legislature has imposed the duty of providing suitable jails and
houses of correction upon the various counties of the Commonwealth,
with the exception of the County of Dukes County (see Inhabitants of
Worcester County v. Mayor and Aldermen of Worcester, 116 Mass. 193,
194). These provisions are mandatory and not permissive. Although
section 9 of said chapter 126 permits the use of a jail for the purposes of
a house of correction when the latter institution is not provided, the
terms of that section read in connection with section 8 and other sections
of chapter 126 do not indicate an intention on the part of the Legislature
that the terms of section 8 that "the coimty commissioners in each county,
. . . shall at the expense of the county provide a house or houses of cor-
rection" should be permissive only. They are mandatory.
Provisions have been made by statute permitting the removal by the
Commissioner of Correction of prisoners from one jail to another in the
same or another county, from state farm to house of correction, from
one house of correction to another, and from house of correction to jail.
These provisions presuppose the existence of at least one jail and one
house of correction in a county at all times. In some instances the author-
ity to return to the original institutions of incarceration is given (G. L.
(Ter. Ed.) c. 127, §§ 101-109A, 110, 111, 113). Nothing appears to indi-
cate a legislative intent that a county may relieve itself from the duty of
providing a jail and a house of correction.
Likewise, the grant of authority by chapter 127, section 115, to a sheriff
to remove prisoners from one jail to another or from a jail to a house of
correction or from a house of correction to a jail in his own county pre-
supposes that each of such institutions is provided by the county com-
missioners.
The Legislature having imposed a duty upon the county to provide a
jail or house of correction, no authority appears to have been left to the
County Commissioners under statutes now in effect to terminate the
38 P-D. 12.
performance of that duty. Such authority to terminate or suspend the
performance of that duty should be sought from the Legislature which
imposed it.
Very truly yours,
Robert T. Bushnell, Attor7iey General.
Department of Conservation — Fishing — Use of Two Hooks or Two Flies
While Fishing in Inland Watey^s.
April 2, 1943.
Hon. Raymond J. Kenney, Commissioner of Conservation.
Dear Sir : — Replying to your recent inquiry as to whether your de-
partment may properly rule that an angler may use two hooks or two flies
while fishing in inland waters of the Commonwealth, I advise you that
my opinion is in the affirmative.
Your assumption that the various sections of the statute referred to in
your letter must be considered together is correct.
"Angling" is defined in G. L. (Ter. Ed.) c. 131, § 1, as amended, as:
"fishing with hand line or rod, with naturally or artificially baited hook."
"Fly" is defined in said section 1 as:
*'a single hook dressed with feathers, ... to which no additional hook,
«... or similar device is added."
"Hook" is defined in said section 1 as:
"any lure or device capable of taking not more than one fish at a time."
The word "fly", though defined in said section 1, is not again used in
said chapter 131, but it is plain that under the terms of the statutory defi-
nitions a "fl}'^" is comprehended by the word "hook" as the latter is
employed in the amended section 40 of said chapter 131, which, read in its
applicable part, is as follows:
"Except as permitted by law, whoever . . . sets or uses more than two
hooks for fishing, . . . m any inland water, . . . shall be punished . . ."
It follows from this provision of section 40 that an angler may use two
hooks at the same time for fishing. There is no requirement which spe-
cifically or by unplication requires that only one of such hooks shall be
attached to a single line or leader.
The angler may, therefore, fish with two hand lines or rods each having
one hook attached by line or leader, or he may fish with one hand line
or one rod having two hooks attached thereto, or he may fish with a rod
in one hand and a line in the other, if neither has more than one hook
attached to it.
Prior to the amendment of said chapter 131 by St. 1941, c. 599, "an-
gling" was defined as:
"fishing with hand line or rod, with naturally or artificially baited hook,
except that not more than three flies may be used on a single leader."
Said St. 1941, c. 599, in striking out chapter 131 of the General Laws
as it then stood and substituting the present chapter 131, materially
changed the definition of "angling" so that it no longer specifically in-
cluded a mode of fishing whereby three hooks might be used at the same
P.D. 12. 39
time, but was in the present form without reference to the number of
hooks employed in the sport. By the terms of the present section 40
of chapter 131, the permissible number of hooks was limited to two, but
no provision appears in said section or elsewhere in chapter 131 limiting
to one the number of hooks which might be used on a single line or leader.
Very truly yours,
Robert T. Bushnell, Attorney General.
Board of Registration in Embalming — Advertisement hy Funeral Directing
Service.
April 12, 1943.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam; — The Board of Registration in Embahning and Funeral
Directing, through you, has asked my opinion as to whether a certain
advertisement of a corporation furnishing funeral directing service, which
bears upon its face the words "represented b}^" A. B., who is not a regis-
tered embahner or funeral director, is in violation of law.
In an opinion rendered to the Board on September 24, 1942 (Attorney
General's Report, 1942, p. 129), I stated that the name of a person not
registered as a funeral director may properly be used on signs and adver-
tisements of corporations furnishing funeral directing service, if such
signs and advertisements are not so worded as to hold out as a funeral
director the person whose name is so used.
It cannot be said as a matter of law that the wording of the advertise-
ment violates any of the provisions of G. L. (Ter. Ed.) c. 112, § 87, which
prohibits unregistered persons from engaging in the business of funeral
directing or embalming.
Whether a person's name is so used in the wording of any particular
advertisement as to hold him out as a funeral director is, as was stated in
my former opinion, a question of fact.
The Attorney General ordinarily does not pass upon questions of fact,
but for guidance of the Board in the present matter it would not seem
that the advertisement under consideration holds out the person named
therein as a funeral director or embalmer.
The advertisement as worded would seem to be a legitunate mode of
advertising the business of the funeral directing service corporation and
as such it does not violate Rule 5 (c) of the Rules and Regulations of the
Board, which in its applicable part provides for the suspension or revoca-
tion of the license of any registered embalmer for
"soliciting patronage (other than by legitimate advertising) ... or any
other unprofessional or unethical conduct."
Very truly yours,
Robert T. Bushnell, Attorney General.
Municipalities — Right to Authorize Installation of Fire Escapes.
April 15, 1943.
Hon. Fred A. Hutchinson, House Committee on Public Safety.
Dear Sir: — On behalf of the Committee on PubUc Safety you have
asked me "where the authority lies" and "what chapter and section in
our General Laws gives the City of Lynn the right to authorize the in-
stallation of fire escapes in certain old buildings." You have informed
40 P.D. 12.
me that by the words '^certam old buildmgs" you mean buildings of
various types long since constructed and in use.
Under the provisions of existing statutes, and without any additions
thereto, it is my opinion that the City of Lynn may take any or all of the
following steps to require the installation of fire escapes on the buildings
to which you have made reference:
1. Having accepted G. L. (Ter. Ed.) c. 143, § 3, the City of Lynn may
enact appropriate ordinances pursuant to the provisions thereof. This
section specifically provides that a city which accepts it may, for the
prevention of fire and the preservation of life, health and morals, by
ordinances consistent with law, regulate the i7ispectio7i, materials, construc-
tion, alteration, repair, height, area, location and use of buildings and other
structures within its limits.
Section 15 of said chapter 143 requires that plans and specifications for
the erection or alteration of certain buildings, including apartment houses,
be approved by the supervisor of plans of the Department of Public
Safety, and that "such building shall not be so erected or altered without
sufficient egresses and other means of escape from fire, properly located
and constructed."
Section 21 of said chapter requires that certain buildings, including
apartment houses, must be provided, on notice from a state inspector,
with proper egresses or other means of escape from fire sufficient for the
use of all persons accommodated, assembled, employed, lodged or resi-
dent therein. The certificate of the inspector shall be conclusive evidence
of a compliance with the requirements of this section.
There is nothing in either section 15 or section 21 that prohibits a city
from enacting further regulations under section 3 referred to above. Pro-
visions substantially similar to those now contained in chapter 143, sec-
tions 3, 15 and 21, have appeared in the forerimner of said chapter (see
St. 1913, c. 655, §§ 3, 15 and 20). An interpretation that sections 15 and
21 of chapter 143 of the General Laws nullify section 3 of said chapter
cannot be sustained in view of the "familiar canon of statutory interpreta-
tion that every word of a legislative enactment is to be given force and
effect so far as reasonably practicable. No part is to be treated as im-
material or superfluous unless no other rational course is open." Com-
missioners of Public Works v. Cities Service Oil Company, 308 Mass. 349,
360.
Moreover, the Supreme Judicial Court has upheld regulations pre-
scribed by cities under G. L. (Ter. Ed.) c. 143, § 3, or its earlier counter-
parts, while the provisions of sections 15 and 21 were in force. See Storer
V. Downey, 215 Mass. 273; M. Spinelli ct: Sons Co. v. Cambridge, 306
Mass. 343. Other statutory provisions, including those referred to below,
also estabhsh the power of municipalities to prescribe appropriate regida-
tions in addition to those specified in chapter 143, section 15 (see c. 143,
§§6-13, inclusive).
2. The city may by ordinance provide that G. L. (Ter. Ed.) c. 143,
§§ 15, 16, 21 to 31, inclusive, 47 and 48, shall apply to any building of
three or more stories in height.
The power to enact such an ordinance is expressly conferred by section
33 of chapter 143. The enumerated sections contain specific require-
ments with respect to many protective measures, including
(a) Fire Escapes — The type and condition of fire escapes and other
means of egress or escape from fire sufficient for the use of all persons
P.D. 12. 41
accommodated, assembled, employed, lodged or resident in such building
(§21);
(b) Fire Extinguishers — In buildings subject to section 21, including
hose attached to a suitable water supply and capable of reaching any part
of such buildings, or such portable apparatus as the inspector shall direct
(§24); and
(c) Periodic inspections of buildings subject to the provisions of chapter
143, and enforcement of safety requirements by local building inspectors.
3. By vote of the city council, the city may accept G. L. (Ter. Ed.)
c. 144. This chapter is entitled "Tenement houses in cities" and was
enacted in 1913, after chapter 143. The definition of "tenement house"
as set forth in section 2 of chapter 144 obviously includes apartment
houses within its scope. This statute, when accepted by a city, imposes
specific requirements concerning fire escapes and other protective features
with respect to existing buildings and buildings to be constructed in the
future. In addition to the specific requirements set forth in chapter 144
of the General Laws, section 4 of that chapter provides as follows:
"This chapter shall be held to provide the minimum requirements
adopted for the protection of the health ^nd safety of the community.
Nothing in this chapter shall be construed as prohibiting any city from
enacting from time to time supplementary ordinances imposing further
restrictions, but no city authority shall have power to minimize, avoid or
repeal any provision of this chapter."
As you know, I expressed the above views in the course of correspond-
ence with the City Solicitor of Lynn after the Special Session of the
Legislature had adjourned in January of 1942 and it was brought to my
attention that the City of Lynn was likely to refrain from requiring in-
stallations believed to be desirable in the interests of public safety because
the City Solicitor felt that present statutes did not give the city authority
to protect its citizens in that manner. It is my understanding that to this
day the City of Lynn is without this protection. You will know the facts
in regard to this better than I.
If it is true that the City of Lynn is still without protection deemed
advisable for the prevention of loss of life by fire, that is the all-important
fact. While I am fully convinced that present laws furnish ample authority
to municipalities to require the installations referred to, if an amendment
to the statutes may serve to induce action by city authorities who will not
otherwise act, such enactment bj^ the Legislature might well be the means
of saving lives which might otherwise be lost in some future catastrophe.
Under the circumstances, I can readily see why the General Court might
deem it expedient to amend G. L. (Ter. Ed.) c. 143, by the addition
thereto of a provision similar to that set forth in G. L. (Ter. Ed.) c. 144,
§ 4, herein quoted.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Temporary Promotions — Authority to Direct.
April 20, 1943.
Mr. Ulysses J. Lupien, Director, Civil Service.
Dear Sir : — I am in receipt of a request from you asking, in sub-
stance, for an opinion as to whether or not you may ratify as permanent
42 P.D. 12.
certain appointments, in the nature of promotions, made by the present
Commissioner of PubHc Safety as temporary appointments during the
period in which he was Acting Commissioner of Pubhc Safety.
It appears from your letter and from the enclosed copy of the Com-
missioner's letter to you that some of the eligible hsts from which the
temporary appointments were made have expired and are no longer in
effect. I take it that such lists expired during the period of time between
the date on which the temporary appointments were made by the Acting
Commissioner and the date of his appointment as Commissioner.
The letter of the Commissioner of Public Safety to you, referring to
the appointments, states that they were made "with the understanding
that, upon the return to duty of the Commissioner, who was absent on
account of illness, or the appointment of a successor, these appointments
would be ratified and made permanent." Your letter to me contains no
reference to such an "understanding," and obviously no "understanding"
can be effective unless it is in accord with the provisions of existing laws.
I can find no authority conferred upon you to transform temporary
appointments into permanent appointments, by ratification or other-
wise, under the circumstances set forth in your communication to me.
Because I can see the possibility of grave injustices being done to indi-
viduals who have prepared themselves for and have successfully passed
competitive examinations and who, by virtue of their high marks, have
succeeded in becoming eligible for appointment and have accepted tem-
porary appomtments, in the belief that such appointments would subse-
quently be made permanent, I have examined the statutes with the ut-
most care in an attempt to find authority to prevent injustices which
were caused by the fact that no Commissioner, with power of permanent
appointment, was appointed until after such eligible lists had expired.
I can find no such authority.
Your letter states that the appointments were made "in accordance
with the provisions of G. L. (Ter. Ed.) c. 30, § 6." In the section referred
to the Legislature has provided that the commissioner or head of certain
departments may designate another person in his department to perform
his duties under certain circumstances, with the specific and clear restric-
tion that:
"a person so designated shall have no authority to make permanent appoint-
ments or removals."
Your letter states that the requisitions for the original appointments were
signed by the present Commissioner, as Acting Commissioner, during the
absence and disability of Commissioner Eugene M. McSweeney.
It is apparent from the above-quoted provision, under which the ap-
pointments in question were made, that the Legislature intended to pre-
vent an Acting Commissioner from makmg changes in the status of the
employees of a department which, if permanent, might upset fonnulated
plans of the Commissioner for the administration of the department or
prove a source of embarrassment to him upon his return to office. What-
ever the reason, the Legislature has specifically prohibited the making of
permanent appointments by acting commissioners.
The word "promote," as employed in G. L. (Ter. Ed.) c. 48, § 36, has
been held to be the equivalent of "appoint." McDonald v. Fire Engineers
of Clinton, 242 Mass. 587, 590. Although promotions are not specifically
referred to in the section, they would appear to be included within the
P.D. 12. 43
scope of the word "appointments" as that word is used by the Legislature
in G. L. (Ter. Ed.) c. 30, § 6.
These promotions could be temporary only at the time they were made.
Their status was not changed by the appointment of the Acting Commis-
sioner to the position of Commissioner. If the lists from which any of
the temporary appointments were made are still in effect, I see nothing
to prevent the new Commissioner from permitting these employees to
return to their former status and then promoting them, on a permanent
basis, under the authority with which the Commissioner, as distinguished
from an Acting Commissioner, is vested by statutory enactment.
If the eligible Usts from which the temporary appointments were made
have expired, due to the time that was allowed to elapse during which
the department was run by an Acting Commissioner, I see no reason why
these employees cannot be continued in their present temporary status
until such time as new eligible lists for promotion may be prepared. If
they become eligible for permanent appointment from the new lists, the
Commissioner may, of course, appoint them from such lists. It would, of
course, be within the authority of the General Court to confer a perma-
nent status on these employees if in its wisdom it should see fit to do so.
Your powers and duties are prescribed by the General Court and they
do not include the power to perfect a change in the status of the appoint-
ments referred to by ratification or otherwise.
Very truly yours,
Robert T. Bushnell, Attorney General.
Greylock Reservation Commission — Authority to Grant Hunting Privileges
to Licensed Hunters on Reservations.
April 20, 1943.
Mr. James E. Wall, Chairman, Greylock Reservation Commission.
Dear Sir : — On behalf of the Greylock Reservation Commission you
have asked me whether the Commission "has the authority to grant
hunting privileges to licensed hunters within any section or sections of
the reservation."
In my opinion, the Commission has the right so to do, subject to the
limitations set forth in G. L. (Ter. Ed.) c. 131, § 89, from which its au-
thority to grant such privileges is derived.
The Greylock Reservation was estabhshed and the Commission was
vested with power "to care for, protect and maintain the same on behalf
of the Commonwealth" by St. 1898, c. 543. The Commission was con-
tinued in its existence and its power of maintenance confirmed and en-
larged so as to embrace the Mount Greylock War Memorial by St. 1933,
c. 336, now G. L. (Ter. Ed.) c. 6, §§ 46, 47.
By the provisions of G. L. (Ter. Ed.) c. 131, §§ 5 and 6, with exceptions
not here material, no person may hunt within the Coimnonwealth unless
he has received a license for such purpose from the Division of Fisheries
and Game.
The Commission's authority with respect to hunting upon the reserva-
tion is governed by G. L. (Ter. Ed.) c. 131, § 89. The applicable portion
of this section reads:
"No person shall hunt, or in any manner molest or destroy, any bird
or mammal within the boundaries of any state reservation, park, common,
44 P.D. 12.
or any land owned or leased by the commonwealth or any political sub-
division thereof, or any land held in trust for public use, except that the
authorities or persons having the control and charge of such reservations,
parks, commons or other lands may, with such limitations as they may
deem advisable, authorize persons to hunt within said boundaries any of
the unprotected birds named in section fifty-three, or the fur-bearmg
mammals mentioned m section sixty-eight, or foxes, weasels or wildcats.
Such an authorization shall be by written license, revocable at the pleasure
of the authority or person granting it. The boards, officials and persons
having control and charge of such reservations, parks, conmions or lands
owned or leased or held for public use shall enforce this section. ..."
It is apparent from these provisions of said section 89 that the Com-
mission may authorize persons having hunting Ucenses to hunt upon the
Greylock Reservation, subject to such limitations as the Commission may
deem advisable. The statute itself limits the scope of such authorization
to the hunting of the unprotected birds named in section 53 of said chapter
131, which are English sparrows, bronzed or purple grackles (crow black-
birds), crows, jays, starlings, sharp-shinned hawks. Cooper's hawks,
goshawks or great horned owls; the fur- bearing animals mentioned in
section 68 of said chapter 131, which are minks, otters, muskrats, and
these only, as provided in section 68, between November first and the
following March first; and opossums and raccoons, and these two last
named animals only, as provided in said section, between October first
and the following January first; also foxes, weasels and wildcats.
The exercise of this authority is further restricted if the director of wild
life research and management has made rules and regulations which pro-
hibit hunting on the reservation under the authority vested in him by
section 91 of chapter 131 to regulate the use of the territory- of such a
reservation so as to improve the feeding and nesting environment of
birds or mammals.
Subject to all the foregoing limitations, the Commission may "open
the resers'-ation " to persons Hcensed to hunt by the Division of Fisheries
and Game under the provisions of G. L. (Ter. Ed.) c. 131, § 6, who also
receive a written license to hunt upon the reservation from the Commis-
sion.
Verj' truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Works — Hours of Work of Departmental Laborers.
April 21, 1943.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You have asked me ''whether or not under G. L. c. 149,
§ 41, or any other law, a Commissioner of Public Works can reduce the
work week of laborers in the Department from forty-eight to forty hours."
I am of the opinion that a Commissioner of Public Works has no au-
thority to make such a reduction in the hours of work for laborers.
G. L. (Ter. Ed.) c. 149, § 30, restricts the hours of work for laborers in
the employ of the Commonwealth "to eight hours in any one day, to
forty-eight hours in any one week, and to six days in any one week." This
section is further modified by section 41 of said chapter, which provides
that permanent laborers and those certified under the civil service laws,
P.D. 12. 45
employed by the Commonwealth or on its behalf, "whose services can be
dispensed with, shall be given a half holiday on every Saturday in the
year without loss of pay."
Although said section 30 of chapter 149 does not specifically define of
what a week's work shall consist for laborers and merely places a limit
upon the niunber of working hours in each day and week, the Legislature
has apparently indicated that as a matter of policy the work week of the
Commonwealth's laborers shall consist of forty-eight hours, modified by
the provisions of the statutes with relation to weekly half holidays. This
being so, the head of the Department of Public Works may not properly
reduce the number of work hours in a week for laborers employed in such
department from forty-eight to forty.
If, for any reason, it should be deemed best in the interests of the public
service to make such a reduction, legislative sanction for such action
should be sought.
You have directed my attention to G. L. (Ter. Ed.) c. 92, § 65. That
statute provides that laborers in the service of the Metropolitan District
Commission "shall be given a half holiday each week without loss of pay,
and, if practicable, the half holiday shall be on Saturday," and that, if
the pubUc service requires, such laborers may be given days off duty at
any time in the year, without loss of pay, equivalent to such weekly half
holidays, in lieu of such weekly half holidays which they may not have
received in the ordinary course. These provisions for substituting days
off for omitted weekly half holidays have not been made applicable to
departments other than the Metropolitan District Commission and have
no application to the subject matter of your request.
Very truly yours,
Robert T. Bushnell, Atlorriey General.
Retirement — Veteran — Subsequent Employment — Retirement Compensa-
tion Payments.
April 27, 1943.
Mr. Walter S. Morgan, Comptroller.
Dear Sir : — You have asked my opinion on three questions.
(1) "Can a former state employee retired under the provisions of chap-
ter 32, section 58, subsequently receive full time compensation from the
state for employment in a different capacity provided he has waived all
retirement compensation since the date of his retirement and continues
to waive such retirement compensation during the whole period of such
subsequent employment?"
I answer this question in the affirmative.
G. L. (Ter. Ed..) c. 32, § 58, reads:
"A veteran who has been in the service of the commonwealth, or of any
county, city, town or district, for a total period of thirty years, shall, at
his own request, with the approval of the retiring authority, be retired
from active service at one half the regular rate of compensation paid to
him at the time of retirement, and payable from the same source."
G. L. (Ter. Ed.) c. 32, § 91, as amended, reads:
"No person while receiving a pension or retirement allowance from the
commonwealth or from any county, city or town, except teachers who on
46 P.D. 12.
March thirty-first, nineteen hundred and sixteen, were receiving annuities
not exceeding one hundred and eighty dollars per annum, shall, after the
date of the first payment of such pension or allowance, be paid for any
service rendered to the commonwealth or any county, city, town or dis-
trict, except upon his return and restoration to active service as ordered
by the appropriate retirement board after re-examination in case of re-
tirement for disability, for jury service, or for service rendered in an emer-
gency under sections sixty-eight, sixty-nine or eighty-three, or for service
in a public office to which he has thereafter been elected by direct vote of
the people."
It is to be noted that in section 91 it is provided that pensioners are
not to be paid for any service rendered to the Commonwealth "after the
date of the first payment of such pension." It would appear from this phrase-
ology that it was the intent of the Legislature to prohibit a person from
receiving from the Commonwealth or from a political subdivision pay-
ments of money both as a pension and as compensation for services at
the same time.
The prohibition of the section is similar to that in G. L. (Ter. Ed.)
c. 30, § 21, which provides that "a person shall not at the same time
receive more than one salary from the treasury of the commonwealth."
Section 21 has been construed narrowly, and it has been held in opinions
of my predecessors that the prohibition contained in section 21 did not
prevent a person from holding an office or position, in addition to one
paying a salary, and receiving compensation for service in such additional
office or position by payment of wages or a fee for extra or special services
as distinguished from salary (II Op. Atty. Gen. 21, 309; V Op. Atty.
Gen. 697, 699). Nor is a member of the Legislature prevented from re-
ceiving the salary of a position because he is the incumbent of a salaried
office as a legislator, if his salary as a legislator for a session has already
been paid to him in its entirety. See opinion of December 31, 1935, to the
State Treasurer, and opinion of March 5, 1936, to the House Committee
on Ways and Means (Attorney General's Report, 1936, pp. 20, 48).
Applying a Hke mode of construction to section 91 it would seem that
its prohibition is not violated if an employee of the Commonwealth, re-
tired under said section 58, in fact receives no payment of the pension or
retirement allowance which has been awarded him, but instead receives
the salary or compensation of an office to which he has been appointed
since his retirement. Under such circumstances it cannot properly be
said that the employee is "paid" for a service rendered "after the date
of the first payment" of his pension. Since, under such circumstances,
he does not become the recipient of two payments of money for the same
period from the pubhc treasury, the evil which section 91 was aimed to
correct does not exist. In so far as an opinion given to the Chairman of
the Emergency Public Works Commission on February 7, 1935, by one
of my predecessors expresses a contrary view, I am not in accord with it.
(2) Your second question is as follows:
"Would such waiver protect the state against subsequent demands for
retirement compensation waived?"
I am of the opinion that a waiver of payments beginning with the first,
by an employee retired under G. L. (Ter. Ed.) c. 32, § 58, made for the
purpose of obtaining the salary or compensation of a position to which
he was appointed after his retirement, would protect the State against
P.D. 12. 47
subsequent demands for such sums as would have been payable as retire-
ment compensation during his second term of employment.
Since the State in reliance upon his waiver of pension payments has
paid to the employee the salary of the office to which he was appointed
after his retirement, under a famifiar principle of law, the employee will
be estopped from asserting a right to receive such payments.
(3) Your third question reads:
"Could such retirement compensation payments be legally begun at the
expiration of the subsequent full time employment?"
I am of the opinion that the pension or retirement compensation pay-
ments might be lawfully begun after the expiration of the subsequent
employment.
No provision of section 91 would be violated by the making of pay-
ments after the employee had ceased to receive a salary, the grant of the
pension or compensation being still in effect.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Works — Establishment of a Stand for Vehicles for
Hire upon Land of the Commonwealth at the Airport in East Boston.
May 6, 1943.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir : — You have asked my opinion upon three questions relating
to the establishment of a stand for vehicles for hire upon land of the
Commonwealth at the Conunonwealth Airport in East Boston not within
any public way.
1. Your first question is whether or not the Department of Public
Works
"has the authority under the law to establish a stand for vehicles for
hire at the Commonwealth Airport, Boston, and to issue rules and regu-
lations in regard to its use."
1 am of the opinion that the Department of Public Works has no such
authority but that such authority is vested in the Bureau of Airport
Management, established by the Commissioner of Public Works in the
Division of W^aterways under St. 1941, c. 695, § 14, under the direction of
the Director of said Division.
St. 1941, c. 695, § 14, reads:
"The commissioner of public works shall establish in the division of.
waterways a bureau of airport management. Said bureau shall be in
charge of a manager to be appointed by said commissioner and shall,
under the direction of the director of the division of waterways, maintain
and operate all airports owned and maintained by the commonwealth."
The maintenance and operation of an airport, situated as is the airport
in East Boston, upon land of the Commonwealth, include by necessary
implication the authority to establish and regulate facilities for transporta--
tion of persons from such airport by motor vehicles, and as part of such
facilities to establish a stand for motor vehicles used for hire on the land of
the Commonwealth upon which such airport is established. No specific
authority to make rules and regulations having the eft'ect of law with
48 P.D. 12.
relation to such a stand has been vested in said bureau, but the making
of directions concerning the use of such a stand would appear to be a
part of a reasonable provision for the operation of the airport.
No authority appears to have been given to the Department of Public
Works as such, or to its Commissioner, to act in regard to the establish-
ment of such a stand provided in the reasonable maintenance and opera-
tion of the airport. The power granted to the Department by G. L.
(Ter. Ed.) c. 91, § 3, to "administer all terminal facilities under control
of the department" would seem from the context of the section to relate
only to terminal facilities connected with shipping in Boston Harbor.
Even if the provisions of section 3 are taken to have a broader signifi-
cance, they are controlled by the specific terms of the later statute of 1941,
dealing specially with the control of airports, which by necessary impli-
cation place the authority to administer terminal facilities of the airport
in the Bureau of Airport Management.
It is particularly provided by G. L. (Ter. Ed.) c. 90, § 39, as amended
by St. 1941, c. 695, § 13, that the powers therein granted to the Massa-
chusetts Aeronautics Commission, of which the Commissioner of Public
Works is a member, shall, with relation "to the management and main-
tenance of airports owned and maintained by the commonwealth" as is
the one at East Boston, be only ^^ advisory."
2. Your second question reads :
"Whether the Police Commissioner has any authority over the estab-
lishing of the stand or the rules governing its use."
I am of the opinion that the Police Commissioner has no such authority.
St. 1938, c. 508, provided that, upon its acceptance by vote of a city
council, licensing authorities for licensing taxicabs and motor vehicles for
hire are authorized to establish taxicab stands on public ways.
St. 1930, c. 392, made the Police Commissioner for the City of Boston
the licensing authority for the operation of taxicabs and motor vehicles
used for hire and for the use of stands. He was authorized to designate
certain portions of the highway for stands, both public stands open to all
vehicles for hire whose owners were licensed, and for special stands for
occupancy by particular licensees. The Police Commissioner was also
empowered to make rules and orders for the regulation of such vehicles
and stands in the city, but he was not authorized to assign, establish or
license stands upon any other land than that included in a public way.
The act authorized any licensed person to occupy a private stand upon
private property if allowed by the owner.
The rules and regulations made by the Police Commissioner forbid
the solicitation of passengers on public ways or from public stands, and,
among other matters, regulate the operation of motor vehicles for hire
and taxicabs in various particulars, including the conduct of operations in
connection with public stands and provision that pubUc stands shall be
free and accessible to all vehicles operated for hire alike.
A stand established by the Commonwealth upon land, not in a public
way, owned by it and maintained as an airport, would appear not to be a
"public stand" as those words are used in said chapter 392; a "public
stand" under the provisions of section 8 of said chapter being a portion
of a public way. Thus it would appear that the Police Commissioner,
whose authority to establish stands is limited to those located in public
ways, has no authority with relation to the establishment of a stand at
the airport not in a public way. Furthermore, the creation by the Legis-
P.D. 12. 49
lature of a bureau to maintain and operate airports owned and maintained
by the Commonwealth itself, in which operation the estabhshment within
the airport of stands for motor vehicles used for hire is by implication
included, indicates an intention upon the part of the Legislature that the
rules and regulations of such a local licensing authority as the PoUce
Commissioner of the City of Boston should not be applicable to the man-
agement, operation and control of such an agency of the Commonwealth
as an airport owned by it. Teasdale v. Newell and Snowling Construction
Co., 192 Mass. 440.
3. Your third question reads:
"Whether any vehicle for hire is prohibited under the law from making
use of that stand (the one established at the airport) in accordance with
rules issued by the Department."
I am of the opinion that vehicles for hire, which may not lawfully be
operated as such on the public ways of the City of Boston, should not be
permitted to use a stand established at the airport for the purpose of
receiving passengers to be transported over the public ways of Boston.
Motor vehicles of many types, including those whose owners are not
licensed to operate vehicles for hire, may not lawfully transport passengers
through the public ways or streets of Boston. To permit such vehicles to
occupy a stand at the airport and then to take on passengers for the
purpose of transporting them through such public ways or streets would
so aid the commission of unlawful acts that it cannot be said that such
vehicles may properly be permitted to use a stand established at the
airport for vehicles operating for hire.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — Proposed Bill for Care of Lots in Cemeteries,
May 11, 1943.
Legislative Committee on Public Health.
Dear Sirs : — You have asked my opinion as to the constitutionality
of House Bill No. 514 now before you for action.
I am of the opinion that the measure, if enacted into law, would be
unconstitutional.
The general purpose of this bill is similar to that of House Bill No.
2663 of 1941, which I stated to be unconstitutional in an opinion to the
Governor (House Document No. 2812 of 1941) and which latter bill was
vetoed by him on July 28, 1941. Its general purpose is to provide that
owners of lots in cemeteries owned, maintained or operated by munici-
palities, churches, religious or charitable societies, and cemetery corpora-
tions, who have not provided care for such lots, may be deprived of their
exclusive rights of burial in any unused portion of such lots owned by them.
The bill now before you would remedy certain defects existing in the
previous proposed act. It provides in section 2, as the previous measure
did not, that such a cemetery "may provide by its rules that if there has
been a failure by the owner or someone in his behalf, other than the ceme-
tery, to care for or provide for the care of a lot in the cemetery, the ceme-
tary may perform the work necessary to put and keep such lot in proper
order and may charge and bill the cost thereof to the owner of the lot."
It then provides that if such charges are not paid within one year, the
50 P.D. 12.
cemetery may give notice by registered mail to the owner that the charges
are due and collectible.
It further provides that if such charges remain unpaid at the end of
one year from the date of mailing the notice the charges shall become a
lien on the unused portion of the owner's lot.
Procedure is provided for the enforcement of such hen by petition to a
Probate Court and the court is empowered to authorize the cemetery to
sell the unoccupied portion of the lot on terms and at a price to be ad-
judged by the court. The proceeds of the sale are to be applied to (1)
the expense of such proceedings; (2) the cost of putting the lot in order;
and the balance, if any, is to be paid over to the owner of the lot. It is
further provided in section 6, lines 10-13, that the purchaser of the lot at
such a sale "shall forthwith make such payment for the limited or per-
petual care of said lot as the court may direct" and that the rights to
burial space actually used for burial and remaining in the original owner
shall be "subject ... to the regulations of the cemetery from time to
time in force."
If it were possible to interpret this bill as indicating an intent upon the
part of the Legislature that it should apply only to lots purchased after
its passage or only to lots so purchased and to lots previously purchased
in cemeteries having at the time of such purchase a provision in their
rules similar to that described in section 2 of the bill, its constitutionality
might be upheld. The measure, however, contains no words showing that
it is not to have a retroactive effect, and its language as employed in the
general context indicates that it is intended to act retrospectively or re-
troactively. Although courts will, whenever the context of a statute does
not require another interpretation, interpret it as applying prospectively
so that it may be construed as constitutional, such a construction cannot
be given to acts wherein "a contrary intent appears by necessary impli-
cation from their words, context or objects." Campbell v. Boston, 290
Mass. 427, 429.
The phrase used in section 2:
"A cemetery may provide by its rules that if there has been a failure
by the owner ... to care . . . for a lot in the cemetery ..."
together with the language of section 7, to the effect that the right of the
owner of an occupied burial space shall from the time of his loss of a
remaining unoccupied space in his lot by force of a lien thereon be "sub-
ject ... to the regulations of the cemetery from time to time," indicate,
as employed in the whole context of the bill, an intent that its provisions
through the present making of a rule may create the relation of debtor
and creditor between the owner and the cemetery for a reason not con-
templated at the time when the owner acquired rights of burial in his lot,
because of some act of omission of the owner which occurred in the past.
This relation so created by legislative fiat would by the terms of the bill
give rise to a Uen not sanctioned by any contract nor by consent or by
usage. This lien, so created, might result by force of this legislative
measure in the loss to the owner of the burial lot of a valuable right in
real property.
The owner of a lot in a cemetery, even if he has acquired only an ex-
clusive privilege of burial therein, is the possessor of a valuable right in
real property. Such a property right, hke other rights in real property,
is one of which he may not be dispossessed arbitrarily or without due
process of law.
P.D. 12. 51
A lien upon real estate, such as the one created by this bill, is wholly
the creation of statute. Pratt & Forest Co. v. Straiid Realty Co., 233
Mass. 314, 318.
A statutory lien is created to give an effective mode of enforcing some
obligation due from one person to another. Its legislative creation must
rest for its justification upon the prior existence of some contractual re-
lation, express or implied, between parties.
The law will not make a new contract between parties by impUcation
differing from that into which they entered, so that a lien cannot be
extended beyond or created against the plain meaning and intention of
an agreement into which such parties entered. Jarvis v. Rogers, 15 Mass.
390, 394.
Therefore, statutory liens cannot constitutionally be created by the
Legislature, when not contemplated by the transactions between the
seller and buyer of interests in realty so as to disturb vested rights ac-
quired by the buyer. (See Elbertson v. Landers, 42 Conn. 209; Young v.
Jones, 180 111. 216; National Bank of Commerce v. Jones, 18 Okl. 555;
Finos V. Netherlands Bank, 147 Wash. 86).
To create and enforce such liens results in the transfer of a vested
property right from one person to another by mere legislative fiat and
so changes the terms of the original agreement between the parties to
the prior transfer of the right as to offend against both the due process
clause of the Fourteenth Amendment and the prohibition of the impair-
ment of contracts by the states in U. S. Const. Art. I, § 10, cl. 1.
It is also to be noted that in the last sentence of section 6 of the bill an
obligation is imposed upon the purchaser of the remainder of a lot sold in
pursuance of a lien which would inevitably prevent the realization of the
amount which would otherwise be possible to obtain upon the sale of the
lot and so would lower the amount of that portion of the purchase price
that the original owner might receive, and as against him the requirement
appears to be wholly arbitrary and unreasonable.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — Effect of a Proposed Act to Establish a Committee of
the General Court to Act loith Respect to Rules and Regulations of
Departments.
May 26, 1943.
Hon. Albert F. Bigelow, Chairmari, House Committee on Ways and
Means.
Dear Sir : — On behalf of the House Committee on Ways and Means
you have asked my opinion as to the constitutionality of House Bill No.
196, entitled "An Act establishing a joint standing committee of the
General Court to act with respect to rules and regulations of state de-
partments, commissions, boards and officials."
This bill would establish a joint standing committee of the Legislature
to be called the "Committee on Departmental Rules and Regulations,"
to be appointed at the beginning of each year from members of the other
joint standing committees designated by the President of the Senate and
the Speaker of the House of Representatives, respectively.
This committee would be authorized to examine and study existing
rules and regulations of state departments, commissions, boards and
officials with a view to making recommendations relative to changes
52 P.D. 12.
therein or additions thereto, and to make an annual report to the General
Court setting forth the rules and regulations approved by it, with recom-
mendations.
It is further provided that existing rules and regulations should con-
tinue in force but that "no changes therein or additions thereto shall take
effect unless and until approved by said committee." In case of an emer-
gency, a change in or an addition to a rule or regulation might take effect
without such approval and might continue in force "until otherwise
ordered" by the committee.
By section 2 of the bill it is provided that rules and regulations, meaning,
apparently, rules and regulations to be made hereafter, shall be' subject
to the approval of the committee and "no longer be subject to the ap-
proval of the governor and council or any other authority, notwithstand-
ing any provision of law to the contrary."
I am of the opinion that this bill, if enacted into law, would be uncon-
stitutional, because (1) it provides for the exercise of executive power by
the joint standing committee; and (2) the committee would be consti-
tuted in an unconstitutional manner.
(1) Art. XXX of Part the First of the Constitution of Massachusetts,
commonl}^ known as the Declaration of Rights, provides:
"In the government of this commonwealth, the legislative department
shall never exercise the executive and judicial powers, or either of them:
the executive shall never exercise the legislative and judicial powers, or
either of them: the judicial shall never exercise the legislative and execu-
tive powers, or either of them : to the end it may be a government of laws
and not of men."
The limitations imposed by Article XXX upon the exercise by the
legislative department of executive powers must be scrupulously observed.
Opinion of the Justices, 302 Mass. 605, 622; 208 Mass. 610, 613; 309 Mass.
609, 625-626.
The power to make rules and regulations to carry into effect statutes
enacted by the Legislature, though in its nature quasi-legislative (Nelso7i
V. State Board of Health, 186 Mass. 330, 335), has by long continued prac-
tice been treated by the courts as proper to be delegated to executive and
administrative subdivisions of the government when safeguarded by suffi-
cient direction in enabling measures. Town of North Reading v. Drink-
water, 309 Mass. 200; Town of Milton v. Donnelly, 306 Mass. 451; In-
spector of Buildings of Falmouth v. General Outdoor Advertising Co. Inc.,
264 Mass. 85, 89; General Outdoor Adver-tising Co. Inc. v. Department of
Public Works, 289 Mass. 149, Sciola's Case, 236 Mass. 407; Common-
wealth V. Hyde, 230 Mass. 6; Martin v. Witherspoon, 135 Mass. 175;
Commonwealth v. Slocum, 230 Mass. 180; Commonwealth v. Sisson, 189
Mass. 247, 253.
The power to approve rules and regulations made by governmental
subdivisions, carrying with it the power to render them invalid by dis-
approval, has over a long period of years been vested in the Governor
and Council and in other executive officers by various statutes whose
validity has not been questioned.
Such authority to approve, with the implied power to disapprove,
resembles, through its last stated aspect, the power to veto legislative
acts, is an authority to exercise a degree of supervision over a govern-
mental subdivision or department and is of an administrative or executive
nature, not of a legislative character.
P.D. 12. 53
This authority of approval being of an executive nature cannot be
exercised by the Legislature itself nor by a committee of its members
acting under a power conferred upon such committee to perform acts
not incidental to or in aid of the functions of the General Court. To do
so is for the Legislatiux; to invade the province and exercise the powers
properly belonging to the executive branch of the government in violation
of Art. XXX of the Declaration of Rights.
If the bill confined the authority of the committee to a study of and
report upon rules and regulations of governmental subdivisions and their
change or possible alteration, it could not be said to transcend the legis-
lative power, but it does not so limit the authority, and the provisions of
the bill with relation to such restricted authority do not appear to be
severable from those granting the more extended power to invade the
field of the executive department.
(2) In my opinion the manner in which the committee would be con-
stituted under the provisions of the bill is such as to render the measure
unconstitutional.
The manner in which the committee would be constituted is substan-
tially that which was applicable to the committee provided for in a certain
proposed act considered by the Supreme Judicial Court in Opinion of the
Justices, 302 Mass. 605, and there held to be in violation of constitutional
provisions.
Like that committee, the committee provided for by this bill is not a
recess committee in the sense in which those words are used in Art. LXV
of the Amendments to the Constitution. The power to be conferred on
the committee by this bill, as I have pointed out, is executive and not
legislative, its members are civil officers and must, if not placed in some
one of the twenty departments of the Commonwealth, serve directly
under the Governor and Council (Mass. Const. Amend., Art. LXVI).
By the provisions of said Art. LXV no member of the present General
Court would be eligible to serve thereon {Opinion of the Justices, 302
Mass. 605, 620).
"The power to appoint and the power to remove officers are in their
nature executive powers" {Murphy v. Webster, 131 Mass. 482, 488), and
the power of appointment of committee members, such as those provided
for in the bill, even if they are required to be chosen from members of
joint standing committees of the Senate and House of Representatives,
"cannot be conferred by law upon the President of the Senate and the
Speaker of the House of Representatives." Opinion of the Justices, 302
Mass. 605, 620-621. See Opinion of the Justices, 303 Mass. 615, 621-624.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — Enforcement of Regulations and Orders Established
by the United States Price Administrator.
May 26, 1943.
His Excellency Leverett Saltonstall, Governor of the Commonwealth.
Sir : — You have requested my opinion on three questions with rela-
tion to "enforcement of all regulations and orders established by the
Price Administrator," particularly referruig to a resolution promulgated
by the New York State War Council.
Your first question is:
54 P.D. 12.
"Under what present provisions of our laws, if any, could we proceed
to prosecute violations of federal price regulations?"
There is no provision in the laws of the Commonwealth under which
prosecutions for violations of federal price regulations may be instituted.
Your second question reads :
"Whether under chapter 719 of the Acts of 1941 and/or chapter 13 of
the Acts of the Special Session in 1942, I have the power to issue an ex-
ecutive order of a tenor similar to that promulgated by the War Council
of the State of New York."
In my opinion, subject to the considerations set forth below with rela-
tion to your third question, neither of the legislative enactments referred
to in the question confers on you the power to issue an executive order
similar in tenor to the resolution adopted by the New York State War
Council under present circumstances.
Your third question reads :
"What, if any, constitutional or legal difficulties of both issuance and
enforcement do you feel exist in this Commonwealth, on a similar type
of order or legislation?"
Inasmuch as I have felt obliged to answer your second question, as to
authority to issue executive orders of this nature, in the negative, my
answer to your third question is directed to certain difficulties inherent
in an executive order or any statute similar in scope and intent to the
resolution of the New York State War Council. An executive order or
statute following this resolution would attempt to make "every violation
of any of such regulations or orders" (referring to regulations or orders
established by the Federal Price Administrator "pursuant to the Emer-
gency Price Control Act of 1942, as amended by Public Law 729 — 77th
Congress") a criminal offense against the laws of Massachusetts. In
other words, such legislation would seek to incorporate, by reference only,
penal regulations presently in existence and hereafter to be enacted by a
federal bureau and attempt to make violation of these regulations a crimi-
nal offense under Massachusetts law.
In 1921 the Supreme Judicial Court was asked for an advisory opinion
on similar legislation. Opinion of the Justices to the Senate, 239 Mass.
606, 612, held flatly that "no statute would be vaHd whereby it should
be attempted to make operative as a statute of this Commonwealth . . .
(a) rule to be enacted or adopted in the future." Previously, at page
610, the court stated:
"It is attempted by these sections . . . to make the substantive law
of the Commonwealth in these particulars change automatically so as to
conform to new enactments from time to time made by Congress and
new regidations issued pursuant to their authority by subsidiary execu-
tive or administrative officers of the United States. It purports to create
offences and impose punishments therefor, not by definition and declara-
tion, but by reference to what may hereafter be done in these particulars
by the Congress of the United States and those by it authorized to estab-
lish regulations.
... It would be destructive of fundamental conceptions of govern-
ment through republican institutions for the representatives of the people
to abdicate their exclusive privilege and obligation to enact laws."
P.D. 12. 55
A few years later, in Commonwealth v. Pentz, 247 Mass. 500, 506, the
court restated a familiar principle as follows:
"Statutes which create crimes nmst be definite in specifying conduct
which is commanded or prohibited. They must afford some compre-
hensible guide, rule or information as to what must be done or what must
be avoided to the end that the ordinary member of society may know
how to comply with its requirements. 'Laws which create crhne ought
to be so explicit that all men subject to their penalties may know what
acts it is their duty to avoid.' United States v. Brewer, 139 U. S. 278, 288.
Commonwealth v. Badger, 243 Mass. 137. Commonwealth v. Atlas, 244
Mass. 78, 82."
The principle here enunciated also points out a practical difficulty in
this field. Apparently the regulations of the Federal Price Administrator,
which the New York resolution adopts, are subject to constant modifi-
cation, change and revision. At present, such federal regulations do not
appear to be readily available to the people, who would have great diffi-
culty in finding out from one day to another or at any specific time which
of their actions were permissible and which were prohibited.
The requirements of this war may well make necessary the abandon-
ment, for the time being at least, of many legal rules that have been
accepted as both sound and fimdamental, and as for practical difficulties,
none should be regarded as insuperable if they constitute an interference
with the task of winning the war.
To what extent the Supreme Judicial Court would hold that the ex-
igencies of total war permit deviation from the sound principles of law
referred to in these decisions, I cannot venture to predict.
Very truly yours,
Robert T. Bushnell, Attorney General.
Motor Vehicles — Merger of Corporations — Re-registration.
June 1, 1943.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir : — You have asked my opinion as to whether, when a
corporation owning motor vehicles which have been registered merges
with another corporation, the resulthig corporation is required to register
such motor vehicles in its own name and to pay the fee therefor in order
to operate them lawfully.
1 answer your question in the affirmative.
G. L. (Ter. Ed.) c. 90, § 2, as amended, in its applicable portion provides:
"... Upon the transfer of ownership of any motor vehicle or trailer
its registration shall expire, and the person in whose name such motor
vehicle or trailer is registered shall forthwith return the certificate of
registration to the registrar with a written notice containing the date of
the transfer of ownership and the name, place of residence and address of
the new owner; ..."
The operation of an unregistered motor vehicle on the public way is
prohibited by the provisions of G. L. (Ter. Ed.) c. 90, § 9, as amended.
It has been repeatedly said by the Supreme Judicial Court that the
principal object of requiring registration is to make readily available to
the public at all times, through public records, accurate information as
to the ownership of motor vehicles. Sanjean v. Hyman, 302 Mass. 224,
56 P.D. 12.
226; Doyle v. Goldberg, 294 Mass. 105, 107; Brodmerkle v. Gorolsky, 293
Mass. 517, 518; Koley v. Williams, 265 Mass. 601.
It has also been said by the Supreme Judicial Court that the word
"owner" as used in said section 2 is not a technical term and it has been
repeatedly construed by the court in a broad sense. Burns v. Winchell,
305 Mass. 276, 278; Keith v. Maguire, 170 Mass. 210, 212; Downey v.
Bay State St. Rwy., 225 Mass. 281, 284; Hurnanen v. Nicksa, 228 Mass.
346; Temple v. Middlesex & Boston St. Rwy., 241 Mass. 124.
In like manner, to give effect to the general legislative intent to ac-
complish the object of the provisions for registration, the word ''transfer"
in the phrase ''transfer of ownership" in said section 2 should not be
regarded as a word of art or one having a technical meaning, but should
be construed in a broad sense to effectuate such intent. The word "trans-
fer" in its general sense includes all transactions whereby property of one
person becomes that of another. It comprehends the meaning of such
technical words as "sell" and "vest." As used in the phrase "upon the
transfer of ownership of a vehicle its registration shall expire" in a statute
governing motor vehicles it has been held to embrace within its meaning
"exchange." Bleon v. Emery, 60 Utah 582.
There is a distinction between a "merger" and a "consolidation" of
corporations in certain respects, but when either occurs there is a resulting
change of ownership of the property of the merged corporation which,
after the merger, is owned by the resulting corporation.
This prmciple of law is embodied in the phraseology of the statute
deahng with mergers and consolidations of corporations (G. L. (Ter. Ed.)
c. 156, § 46A) which reads in part as follows:
"Section 4^ A. . . . Upon the filing of . . . articles (of amendment),
all of the property, real, personal and mixed, and the rights, privileges
and franchises of the merged corporation shall vest in and be held and
owned by the resultmg corporation as the same were before held and
owned by the merged corporation, subject, however, to all the liabilities
and obligations including taxes of the merged corporation, and the rights
of creditors thereof, for which the resulting corporation shall be liable in
the same manner and to the same extent as if it had itself incurred such
liabilities and obligations. ..."
This principle is not changed by reason of the fact that in section 46C
of said chapter 156, dealing with the consolidation of corporations, it is
provided that the property of the constituent corporations, when con-
solidated, "shall be transferred to and vested in the consolidated corpora-
tion." Because the Legislature coupled the word "vest" with the word
"transfer" in relation to property of consolidated corporations in section
46C of said chapter 156, no implication arises that the use of the word
"vest" alone in connection with merged corporations in said section 46A
was not intended to refer to a change of ownership of the propertj^ of a
merged corporation.
The word "vest" in its technical sense, as used with relation to property
or rights, has been defined as meaning "to give an immediate fixed right
of present or future enjojouent." Bouvier's Law Diet. (Rawle's Rev.)
Vol. II, p. 3397. Carroll v. City of Newark, 108 N. J. L. 323; Stewart v.
Harriman, 56 N. H. 25.
It is also defined more broadly as conferring ownership of a property
upon a person. Smith v. Proskey, 79 N. Y. S. 851; 67 C. J. pp. 238-239,
§ 1, notes 53, 61, 63.
P.D. 12. 57
In either its narrow or broad sense it indicates a change or passing from
one to another of the ownership of property such as is fairly described by
the phrase "transfer of ownership" in said section 2 of chapter 90.
In the interpretation of G. L. (Ter. Ed.) c. 90, § 2, it is not necessary to
give to the words "transfer of ownership" any hniited signification in
order to have an existing harmony between that section and sections
46A to 46E of said chapter 15G. However brought about, a merger of
corporations of necessity works a change or a transfer, using the word
"transfer" in a broad, general sense, in the OAvnership of the property
formerly held by a merged corporation.
It follows, then, that since the ownership of property has been changed,
handed over or vested in the corporation resulting from the merger, there
has been a transfer of ownership of such property, in this case motor
vehicles, within the meaning of the words "transfer of ownership" in
said section 2, so that by force of said section the old registration in the
name of the merged corporation terminates and new registration in the
name of the corporation resulthig from the merger must be effected and
the required fee therefor paid before such motor vehicles may be lawfully
operated upon the public way.
Very truly yours,
Robert T. Bushnell, Attorney General.
Board of Registration in Medicine — Non-approved School of Medicine —
Matricidation Prior to January 1, 1941 — Examination for Registration.
June 4, 1943.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam : — On behalf of the Board of Registration in Medicine
you have asked my opinion upon the following question:
"If a student has matriculated in a non-approved school of medicine
previous to January 1, 1941, and has either left the school or flunked out
during the first year and again begins his medical education at the same
school or some other non-approved school after January 1, 1941, repeating
his freshman year, is that student exempt from meeting the requirements
of section 2, chapter 112 of the present laws?"
I answer the question in the affirmative.
The provisions of G. L. (Ter. Ed.) c. 112, § 2, as amended, existing
prior to January 1, 1941, did not require' that an apphcant to be examined
for registration as a physician should have attended a medical school
"approved by the approving authority," as do the provisions of said
section 2 in force since that date. By the provisions of said section as it
was in effect before that date, attendance at a "legally chartered medical
school" was all that was required. By the terms of St. 1938, c. 259, § 1,
amending St. 1936, c. 247, § 3, the provisions of said chapter 112, section 2,
as they existed prior to January 1, 1941, alone were to apply to apphcants
"who shall have matriculated prior to said date in any legally chartered
medical school having power to confer degrees. . . "
St. 1938, c. 259, § 1, and St. 1936, c. 247, § 3, which excluded apphcants
who had matriculated before January 1, 1941, from the requirements of
said section 2 in its present form, contain nothing to indicate that their
provisions should not be effective with regard to a person who had ma-
triculated before such date but had failed to continue his studies at the
58 P.D. 12.
medical school where his matriculation took place. The language of the
statutes of 1938 and 1936 makes the older provisions of law applicable to
a person who had matriculated at a legally chartered medical school
before January 1, 1941, without quaUfication in this respect. Such a
person does not become subject to the later provisions of law merely by
leaving the school at which he had matriculated, or by pursuing his edu-
cation later at the same or some other school.
That this was the intent of the Legislature is indicated by the fact that
in 1933, by chapter 171 of the acts of that year, previously existing statu-
tory qualifications for applicants for registration in medicine were changed
and, in a provision similar to those in said statutes of 1938 and 1936, it
was provided that only the requirements of an earlier law concerning
qualifications should govern the eligibility of any applicant "who was on
March tenth, nineteen hundred and seventeen, a matriculant of any
legally chartered medical school." The provision protecting applicants
who had matriculated sixteen years before the enactment of new qualifi-
cations shows plainly a general intent on the part of the Legislature that
neither lapse of time nor breaks in continuity of education should work to
the detriment of those who had matriculated before changes were made
in the quahfications necessary to enable one to become eligible to be
examined for registration as a physician.
Very truly yours,
Robert T. Bushnell, Attorney General.
Public Employees — Group Insurance — Common Paymaster.
June 29, 1943.
Hon, Francis X. Hurley, Treasurer and Receiver General.
Dear Sir : — You have asked my opinion as to whether the word
"thereof" as used in St. 1943, c. 424, § 2, in connection with the defini-
tion therein of "common paymaster" applies both to the City of Boston
and to the Commonwealth or only to the city.
I am of the opinion that the word "thereof" as so used applies both
to the City of Boston and to the Commonwealth, and to the boards,
departments and commissions of each, respectively.
The definition in question reads:
"The term 'common paymaster', as used in clause {d) of this section,
shall mean any officer or employee of the commonwealth or the city of
Boston or any board, department, or commission thereof, whose duties
include the payment of salaries or wages to employees of the common-
wealth, said city or any board, department or commission thereof."
This act provides for the issuance of policies of group life and general
or blanket accident and health insurance to cover members of certain
associations of public employees. Said clause (d) of section 2 of the act
makes provision for the issuance of such policies to
"the members of any association of state, county or municipal employees,
who are regularly and permanently employed by the commonwealth, a
county or a municipality and, if employed by the commonwealth or the
city of Boston, are paid by a common paymaster. . . ."
It is apparent from an inspection of the report to the General Court of
the special unpaid commission appointed by authority of Res. 1941, c. 65,
P.D. 12. 59
to investigate and study group insurance of public employees, upon which
this legislation was based, that the coniniission recommended the classify-
ing of employees, both of the City of Boston and of the Commonwealth,
and of the various boards, departments and commissions of each, re-
spectively, for the purposes of obtaining the benefits of general policies
of insurance, in groups, the members of which had a "common paymas-
ter." It is plain from the context of this commission's report that it in-
tended that this method should be Spplied not only to the employees of
boards, departments and commissions of the city, but also to the em-
ployees of similar bodies in the service of the (/ommonwealth itself.
Moreover, I am advised that although the State Treasurer himself
issues checks to the salaried officers and employees throughout the Com-
monwealth's service, in regard to the payment of wages to many em-
ployees who receive wages and not salaries, the State Treasurer allocates
a sum of money to the department or other subdivision in which such
employees work, and from this sum an officer or employee of such depart-
ment or subdivision, acting directly as paymaster, makes the actual pay-
ment of wages to the individual employees.
The word "thereof" when employed in a statute is often taken to refer
to the last antecedent noun with which it might be connected, but fre-
quently, if the intent of the Legislature in using it appears to be other-
wise, it is interpreted as referring to other words in the enactment. In re
Reber's Petition, 235 Pa. 622; W erckmeister v. Pierce, etc., Mfg. Co., 63
Fed. 445, 454. State v. Guida, 119 N. J. L. 464. 62 C. J. pp. 904-905.
In view of these considerations it would appear to have been the intent
of the Legislature in framing the said definition of "common paymaster"
and in using the word "thereof" in the definition, to include within its
sweep "any board, department or division" of the Commonwealth as
well as similar offices of the City of Boston.
Very truly yours,
Robert T. Bushnell, Attorney General.
Municipalities — Public Market Places — Towns of Less Than 10,000
Popidation.
July 9, 1943.
Hon. Louis A. Webster, Acting Commissioner of Agriculture.
Dear Sir: — You have asked my opinion as to whether the provisions
of G. L. (Ter. Ed.) c. 40, § 10, embodied in the second sentence of said
section, authorize cities, or towns having a population of less than 10,000,
upon petition of not less than five per cent of the voters, to designate
streets or squares, approved by the Department of Agriculture, to be
used by farmers as public market places.
I am of the opinion that such provisions do not authorize cities, or
towns of less than 10,000 population, to make such designation. The first
two sentences of said section 10 read:^
"A city, or a town having a population of not less than ten thousand,
may provide and maintain one or more public markets, with suitable
buildings and grounds, and for this purpose may acquire land by gift or
purchase or lease the same, with or without buildings, and may make
alterations in buildings and construct new buildings on land so acquired
or leased. Any city or town which does not so maintain a public market
shall upon a petition signed by not less than five per cent of its voters
60 P.D. 12.
designate one or more streets or squares or other public places, suitably
situated and approved by the department of agriculture, to be used by
farmers as public market places . . ."
By the terms of the foregoing the Legislature empowered cities, and
towns having a population of 10,000 or more, to provide and maintain
"public markets." It authorized and required such cities, and towns, i.e.,
those having a population of 10,000 or more, which do not avail themselves
of the grant of power to provide and maintain "public markets," to desig-
nate "one or more streets or squares or other public places" to be used
by farmers as "public market places" if petition in a prescribed form is
made by voters for designation of "public market places."
No power is granted by the section to cities, or towns having less than
10,000 population, to provide and maintain "public markets" nor are
they authorized or required upon petition or otherwise to designate areas
as "public market places."
The intent of the Legislature in this respect was unmistakably shown
in the phraseology of the original enactment concerning markets and
market places (Gen. St. 1915, c. 119) from which said section 10 is de-
rived. Section 1 of said chapter 119 provided:
"All cities and all towns having a population of ten thousand or more
are hereby authorized to provide and maintain public markets with
suitable buildings. ..."
Section 2 provided :
"All cities and all towns having a population of ten thousand or more
which do not maintain public markets under the provisions of section one
hereof shall, . . . designate one or more streets or squares, ... to be
used ... as public market places."
Very truly yours,
Robert T. Bushnell, Attorney General.
Taxation — Salary Increase of Members of Legislature — Withholding Tax.
July 20, 1943.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir: — You have asked my opinion as to whether the temporary
salary increase to which members of the Legislature became entitled
under the provisions of St. 1943, c. 170, is subject to the 20% withholding
tax established by the Federal Current Tax Payment Act of 1943.
I am of the opinion that the 20% withholding tax provided for by said
Federal Current Tax Payment Act of 1943 applies to such salary increases.
St. 1943, c. 170, provides in its applicable parts:
"Section 1: The salary of each person in the service of the common-
wealth and paid from the treasury thereof is hereby increased by an
amount equal to fifteen per cent thereof; . . . Said increase of salary
shall be effective only for the period beginning July first, nineteen hun-
dred and forty-three, and ending June thirtieth, nineteen hundred and
forty-five. ..."
"Section 7: Notwithstanding the foregoing provisions of this act, the
temporary salary increase to which a member of the general court shall
be entitled hereunder shall be limited to three hundred and sixty dollars,
P.D. 12. 61
which shall he payable in one sum on July first in the year nineteen hun-
dred and forty-three."
By the provisions of G. L. (Ter. Ed.) e. 3, § 9, as most recently amended
by St. 1941, c. 600, the compensation of the members of the General
Court is payable at the conclusion of the session although provision is
made for partial payment at different times during the session.
By the terms of said section 7 of chapter 170 the increase in salary of
S360 was payable to each member of the Legislature on July first, and
it is clear that such payment was required to be made without reference
to any payment made under said section 9, of chapter 3, and plainly not
with regard to any pay roll period.
The Federal Ciirrent Tax Payment Act of 1943 took effect on July first
of this year and by its terms is applicable to wages paid on and after such
date except that it is not made apphcable to wages paid during the cal-
endar year 1943 with respect to a pay-roll period beginning before July
first. (Current Tax Payment Act of 1943, § 2, subchapter D.)
According to "Advance Regulations" made by the Treasury Depart-
ment (No. 5277, sec. 404.1) on June 23, 1943, it is provided that:
"The tax required to be withheld under 1622 (Current Tax Payment
Act of 1943, sec. 2) of the Internal Revenue Code is applicable to (1) all
wages actually or constructively paid on or after July 1, 1943, for pay roll
periods beginning on or after that date, (2) all wages actually or con-
structively paid on or after July 1, 1943, if paid without regard to a pay roll
period, and (3) all wages actually and constructively paid on or after
January 1, 1943. (Regardless of whether such wages are paid for a pay
roll period beginning before July 1, 1943.)"
These regulations were made under authority granted to the Commis-
sioner of Internal Revenue by said Current Tax Payment Act of 1943,
subchapter D, § 1622, (i) of the Internal Revenue Code.
By Executive Order No. 57, promulgated by the Governor of this
Commonwealth on June 30, 1943, it wag provided that:
"The treasurer or other official having charge of the payment of wages
by the Commonwealth or by its political subdivisions is hereby authorized,
empowered and directed to withhold such amount of the wages of every
employee as may be required by the provisions of the Current Tax Payment
Act of 1943 . . . and such rides and regulations as may be made thereunder
and to transmit and pay the amount so withheld to the government of
the United States in accordance with the provisions of said Act and said
rules and regulations."
Very truly yours,
Robert T. Bushnell, Attorney General.
Minor — Commission as Notary Public or Justice of the Peace.
Aug. 5, 1943.
Joseph S. Mitchell, Esq., Executive Secretary.
Dear Sir: — You have asked my opinion as to "whether a notary
public or justice of the peace commission can be issued to a person under
twenty-one years of age."
In my opinion a commission as notary public can be issued to a person
under twenty-one years of age, but a commission as justice of the peace
cannot.
62 P.D. 12.
Examination discloses that neither the Constitution nor the statutes of
the Commonwealth contain any provisions relating to the age which a
person must have attained in order to become eligible to appointment as
a notary public or justice of the peace.
The origin, history and duties of the office of notary public are consid-
ered at length in Opinion of the Justices, 150 Mass. 586. The duties of
such office have not been substantially changed in character since the
date of that opinion. As was pointed out by the Justices, the office of
notary public is not judicial in character. It is a general principle of the
common law that minors, though not eligible to hold offices which are
judicial in character, may be eligible to hold offices which are ministerial,
requiring skill and diligence in their administration rather than experience
or the exercise of grave discretion. See Moore v. Graves, 3 N. H. 408;
Golding's Petition, 57 N. H. 146; State v. Dillon, 1 Head (Tenn.) 389.
In the case of United States v. Bixhij, 9 Fed. 78, it was held that a
minor may be legally commissioned as a notary public, that office being
one which is not judicial in character. A similar opinion was expressed
by one of my predecessors in office in 1928. VIII Op. Atty. Gen. 449.
While there appears to be no legal impediment to the appointment of
a minor to the office of notary public, whether or not such an appoint-
ment would be consistent with a sound public pohcy is a matter beyond
my province and upon which I express no opinion.
On the other hand, it is pointed out in Opinion of the Justices, 107
Mass. 604, that "by the Constitution of the Commonwealth, the office of
justice of the peace is a judicial office." This distinction between the
office of justice of the peace and the office of notary public must be borne
in mind. It appears to be a rule of universal application that a person
under the age of twenty-one years cannot hold such an office. This doc-
trine was established in Scamhler v. Waters, Croke Eliz. 636. The Supreme
Judicial Court of the State of New Hampshire has held that a person
under the age of twenty-one years could not be commissioned a justice of
the peace, since that office is judicial in character and requires the exer-
cise of judgment, discretion and experience for the proper discharge of
the duties to be performed. Golding^s Petition, 57 N. H. 146.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Health — Regidations — Slaughtering of Poultry.
Aug. 6, 1943.
Dr. Vlado a. Getting, Commissioner of Public Health.
Dear Sir : — You have asked my opinion as to whether the Depart-
ment of Public Health has sufficient authority under the provisions of
G. L. (Ter. Ed.) c. 94, § 147A, to make regulations dealing with the sani-
tary conditions of establishments in which poultry may be slaughtered
for sale as food.
In my opinion the department has such authority.
G. L. (Ter. Ed.) c. 94, § 147A, is as follows:
"The department of public health may make regulations for the in-
spection of game, poultry, and other meat except that of cattle, sheep or
swine, intended for sale or exchange for use as food, and as to the con-
ditions under which such game, poultry and other meat may be handled,
P.D. 12.
63
stored, sold or exchanged. Whoever violates any provision of such a
regulation shall be punished by a fine of not more than fifty dollars."
By its terms the foregoing section specifically empowers the depart-
ment to make regulations not only for the inspection of poultry intended
for sale or exchange for use as food, but also relative to the conditions
under which such poultry may be handled, stored, sold or exchanged.
It would appear that the Legislature in enacting said section 147A
intended to safeguard the public health by authorizing the department
to regulate both the inspection of poultry and the conditions under which
poultry which is intended for sale for use as food may be handled, stored,
sold or exchanged.
In my opinion, such conditions include the sanitary facilities of estab-
lishments in which such poultry may be slaughtered for sale as food.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Approval of Appointments of Mayor of Lowell.
Aug. 9, 1943.
Mr. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have requested my opinion with reference to St.
1943, c. 88, and more specifically as to whether or not section 1 (/) thereof
requires that the "approval of the Director of Civil Service must be given
on all permanent, provisional or temporarj^ appointments in any depart-
ment in the City of Lowell, or whether or not this section applies only to
appointments which woidd ordinarily be made by the Mayor."
St. 1943, c. 88, § 1, provides, in substance, that notwithstanding any
other provision of laAv, the president of the City Council of Lowell, or his
successor, shall possess all the rights and powers, perform all the duties
and be subject to all of the obUgations of the mayor of Lowell, subject,
however, to certain detailed provisions contained in subsections (a) to (g)
thereof.
Section 1 (/) of said chapter reads as follows:
"During the period covered by this act, no permanent appointm-ent,
and no provisional or temporary appointment except to fill a vacancy
until the said first Monday in Januar}^, nineteen hundred and forty-four,
shall be made to any office or position within the classified civil service of
said city, except with the approval of the director of civil service in the
department of civil service and registration."
It is my opinion that the foregoing section limits only the power of the
president of the City Council to make appointments to certain oflfices and
positions within the classified service of said city, and that it has no
application to appointments made by other oflficials of the city having
the power to make appointments to oflfices or positions within the classi-
fied civil service.
St. 1943, c. 88, apparently was designed to remedy conditions existing
in Lowell by reason of the disqualification of the mayor to perform his
duties. The contents and arrangement of said statute manifest a legisla-
tive intent that it should affect the rights, powers, duties and obligations
of the person performing the functions of mayor.
There is no reason to assume that the Legislature, in dealing specifically
with the rights, powers, duties and obligations of the mayor, intended to
64 P.D. 12.
affect those provisions of law applicable to appointments made by other
officials of said city having the power of appointment. See opinion given
by me to the Special Joint Committee of the General Court concerning
Cambridge, on September 8, 1941 (not published).
Very truly yours,
Robert T. Bushnell, Attorney General.
Schools — Pupils — Salute to Flag and Oath of Allegiance.
Aug. 11, 1943.
Hon. Walter F. Downey, Commissioner of Education.
Dear Sir : — In a recent letter you requested my opinion relative to
the effect of the decision of the United States Supreme Court in West
Virginia State Board of Education et at. v. Barnette et al., 319 U. S. 624,
on Massachusetts General Laws (Ter. Ed.) c. 71, § 69, and, more specifi-
cally, on that part which reads:
"... Each teacher shall cause the pupils under his charge to salute
the flag and recite in unison with him at said opening exercises at least
once each week the 'Pledge of Allegiance to the Flag'. Failure for a period
of five consecutive days by the principal or teacher in charge of a school
equipped as aforesaid to display the flag as above required, or failure for
a period of two consecutive weeks by a teacher to salute the flag and
recite said pledge as aforesaid, or to cause the pupils under his charge so
to do, shall be punished for every such period by a fine of not more than
five dollars. ..."
It has been the estabhshed practice of Attorneys General for many
years not to render opinions on hypothetical questions or to attempt to
state general interpretations of law unrelated to the facts of a particular
situation with respect to which a state officer is required to act. See
Attorney General's Report, 1935, p. 31, and opinions cited.
I regard that practice as entirely sound and I have generally adhered
to it. It does not appear that your inquiry refers to any situation which
requires official action on your part, nor do you state the facts of any
particular matter over which there is a conflict of authority.
However, on August 10th members of this department held a confer-
ence with you at which the subject matter of your request for an opinion
was discussed. As was stated at that time, it is my opinion that pupils
in the public schools may not be required to salute the flag nor to recite
the "Pledge of AUegiance to the Flag." Neither can pupils refusing to
participate in such ceremonies be disciplined for their refusal or required
to state the reasons for such refusal. Prior holdings of the Supreme Court
to the contrary are expressly overruled by the decision in the Barnette
case. It goes without saying that the foregoing in no way affects the
right of the pupil to participate voluntarily in the salute to the flag or
the "Pledge of Allegiance to the Flag."
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 65
County Officers — Military Service — Salaries — St. 1941, c. 708.
Aug. 17, 1943.
HoQ. Henry F. Long, Commissioner of Corporations and Taxation.
Dear Sir: — In a recent communication you related a number of in-
stances that have been disclosed in the course of audits of the books of
county treasurers by the Division of Accounts in your department, in
which persons elected to the county offices of clerk of court, register of
deeds and sheriff have entered the armed services during their terms of
office, and you asked my opinion as to the effect of St. 1941, c. 708, both
prior and subsequent to its amendment by St. 1943, c. 548, on the status
and salary rights of these persons.
St. 1941, c. 708, § 1, provides as follows:
"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 mili-
tary or naval forces of the United States and who does or did so serve or
was or shall be rejected for such service, shall, except as hereinafter pro-
vided, 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 poUtical subdivision thereof, or to have termi-
nated such service, until the expiration of one year from the termination
of said military or naval service b}' him."
Elected county officers, including registers of deeds, clerks of court and
sheriffs are within the scope of this section. By virtue of its provisions
such officeholders who, after January 1, 1940, tender their resignations or
otherwise terminate their services for the purpose of serving in the mili-
tary or naval forces of the United States and who do so serve, as you
state the particular officers in question do, are deemed to be on leave of
absence and not to have resigned from their offices.
St. 1943, c. 548, § 1, amending St. 1941, c. 708, § 1, provides in its
applicable part that:
"... When a person holding an office or position in the service of the
commonwealth, or any political subdivision thereof, enters the miUtary
or naval service of the United States and files a resignation in writing
stating his reason for such resignation, the resignation shall be considered
a final determination of the reason for leaving the service of the com-
monwealth, or a political subdivision thereof. If no written resignation
is filed, entrance into the military or naval service of the United States
by a person holding a position in the service of the commonwealth, or a
political subdivision thereof, shall be prima facie evidence that his service
to the commonwealth, or a political subdivision thereof, is terminated for
the purpose of entering said military or naval service. . . ."
Since the effective date of this amendment, if some reason other than'
entering the military or naval service of the United States is advanced.
in writing for the resignation, such explanation shall be conclusive and, '^
as to such person, the provisions of chapter 708, as amended, shall have
no application.
The salary rights of an elected public officer have been adjudicated
from time to time and it appears that in the absence of statutory prohi-
66 P.D. 12.
bition such an officer, so long as he holds his office, is entitled to receive
the salary fixed therefor by law, despite the fact that by reason of sick-
ness, absence or some similar cause he is disabled from performing the
duties of his office. It has frequently been said that the salary is an
incident of an elective office, and so long as the officer holds the office he
is entitled to receive the salary. Such a public officer is in no sense an
agent or servant, and the obligation to pay his salary rests upon statute
and not upon any express or implied contract. Campbell v. Boston, 290
Mass. 427, at 429; Bell v. Treasurer of Cambridge, 310 Mass. 484; Sleigh
V. United States, 9 Ct. of CI. 369.
Where an elected officer "deliberately refrained from undertaking fur-
ther any of his official duties," it was held that he was not entitled to
receive the salary of his office (Bell v. Treasurer of Cambridge, 310 Mass.
484, 488), the situation being compared to a suspension resulting in a
separation from the public service.
The principle applied in Bell v. Treasurer of Cambridge is not applicable
to elected officers falling within the provisions of St. 1941, c. 708, either
prior or subsequent to its amendment by St. 1943, c. 548, because by
the express terms of that statute such persons are deemed to be on leave
of absence and not separated from the service. Moreover, the plain intent
of the Legislature in enacting St. 1941, c. 708, as amended, as is shown
by its context, was to preserve rather than to impair the salary rights of
those elected public officers included within the scope of said statute,
who had already entered or might subsequently enter the military or
naval forces of the United States.
Those provisions of law relating to the performance of the duties of
the offices of clerk of court, register of deeds and sheriff by others during
the absence or illness of the incumbent do not afTect the right of the in-
cumbent to receive the full salary of his office from the county.
Assistant registers of deeds and assistant clerks of court, who are re-
quired by statute to perform the duties of the register or clerk, are not,
since the statutes are silent on the subject, entitled to additional com-
pensation for performing these further duties. See G. L. (Ter. Ed.) c. 36,
§ 8; c. 221, § 33. However, a temporary register of deeds, whose ap-
pointment is authorized when the assistant and second assistant registers
are unable by reason of sickness or otherwise to perform the register's
duties, is entitled to compensation to be paid by the county for which
he is appointed. G. L. (Ter. Ed.) c. 36, § 8. Cf. G. L. c. 36, § 8, prior
to the enactment of St. 1931, c. 301, § 10.
If, by reason of absence, sickness or otherwise, a sheriff is unable to
perform his official duties, it is provided by G. L. (Ter. Ed.) c. 37, § 5,
that they shall be performed by the special sheriff, and compensation
therefor, if not otherwise provided for, shall be paid by the sheriff.
In my opinion the particular officers mentioned by you, namely, reg-
ister of deeds, clerk of court and sheriff, were entitled to receive the full
salaries fixed by law for their offices until the enactment of St. 1943,
c. 548, notwithstanding the fact that the performance of the duties of
their offices devolved upon their assistants, temporary appointees to the
office, or others. Whatever disposition is made by such officers of their
salary is not material here.
St. 1943, c. 548, amending St. 1941, c. 708, contains an emergency
preamble and was enacted on June 12, 1943. Sections IIB and IID of
said chapter 708, as inserted by St. 1943, c. 548, § 5, are applicable to the
facts related by you and are as follows:
P.D. 12. 67
"Section IIB. In case an elected county officer, other than the register
of probate, is unable to perform the duties of his office by reason of said
military or naval service, a board consisting of the county commissioners
together with the clerk of court and the county treasurer, may in writing
appoint an acting officer who in his absence shall possess all the rights
and powers and perform all tiie duties of said officer until the expiration
of the term of office of the al)sent officer, or until his return to the duties
of such office, whichever sliall occur first. In case of failure to ffil such
vacancy in the manner hereby provided within one week, such vacancy
shall be filled by the county connnissioners.
A person appointed under the provisions of this section shall receive
from the county one half of the salary or compensation fixed for the posi-
tion, which shall be deducted from and charged against the appropriation
voted for such salary or compensation, plus such further sum, if any, as
mav be provided from an appropriation voted or a transfer from the
reserve fund set up in the budget. The salary or compensation paid to
the elected official on leave of absence shall be one half of the amount
fixed for the office until the expiration of the term of office for which he
was elected, or until his return to the duties of such office, whichever first
occurs."
"Section IID. The treasurer of any county, city, town or district,
when so authorized by the absent officer, shall retain his compensation
for the benefit of the county, city, town or district."
Section UB provides a new method for appointing an acting officer to
perform the duties of an elected county official, other than a register of
probate, who is unable to perform the duties of his office by reason of
military or naval service; and it deprives such elected county official of
the right to receive the full salary of his office, substituting therefor a
right to receive one-half thereof.
The statute is vahd, Taft v. Adams, 3 Gray 126, 130, and in accordance
with general rules is prospective in operation {Campbell v. Boston, 290
Mass. 427, at 429).
As was said in Nichols v. Commissioner of Public Welfare, 311 Mass.
125, 130:
"The Legislature has the power to create offices, estabhsh their tenure,
define the eligibihty of those seeking such offices, fix their compensation
or duties, change the tenure, compensation or duties, and abolish all of
such offices other than those provided for in the Constitution. And this
power is not limited to offices intimately connected with the State govern-
ment but applies to offices that may be created and maintained for the
administration of a branch of municipal government ..."
Upon the effective date of said section IIB, each official referred to by
you was entitled to receive only one-half of the salary of his office, and
the office was required to be filled by the appointment of an acting officer
to perform the duties of the official on leave, such acting officer to be
appointed and compensated in the manner provided in said section.
Section IID provides in effect that the absent officer may waive his
right to receive the compensation provided for by statute. Authorization
by the absent officer to the county treasurer to retain his compensation
for the benefit of the county should be in express terms and should not be
68 P.D. 12.
implied merely from the fact that the officer tendered a resignation, the
effect of which under the statute is to cause such officer to be deemed to
be on leave of absence.
Very truly yours,
Robert T. Bushnell, Attorney General.
Governor — Emergency War Powers — Executive Orders — Public Welfare-
Aug. 18, 1943.
His Excellency Leverett Saltonstall, Governor of the Commonwealth.
Sir: — In a recent communication your secretary requested advice on
behalf of Your Excellency as to whether the emergency powers granted
to the Governor are broad enough in scope to authorize the promulga-
tion of an executive order, the effect of which would be to permit the
construction of a bridge over Webster Street, a public way, in Worcester,
connecting two buildings on opposite sides of the way, which buildings
are owned and occupied by the Handy Pad Supply Company. It is
stated that this company makes surgical supplies and at the present time
is working on contracts for the Army. I assume that these contracts are
being executed at the premises referred to above. It is also stated that
the construction of such a bridge has been approved by the joint stand-
ing committee on streets of the City Council of Worcester.
Attached to this communication is a copy of a letter from H. F. Currie,
Lieut. Colonel, Medical Corps, United States Army, requesting, in the
interest of the war effort, that authority be granted for the construction
of the proposed bridge, and a letter from the City Solicitor of Worcester
to the effect that the city has no authority to grant permission to a pri-
vate entity to maintain structures over a public highway without the
consent of the Commonwealth.
While the answer to your inquiry is not free from doubt, it is my opinion
that St. 1941, c. 719, Part II, § 7, as amended, and St. 1942, c. 13, §§ 2
and 3, are broad enough in scope to permit Your Excellency to authorize
the construction of the proposed bridge, provided Your Excellency de-
termines as a matter of fact that the giving of such authority is neces-
sary or advisable for the purpose of co-operating with the federal authori-
ties or with the mihtary or naval forces of the United States in a matter
pertaining to the common defense or common welfare, or that the giving
of such authority is necessary for the support of the national government
in the prosecution of the war.
The emergency powers of the Governor are set forth in St. 1941, c. 719,
Part II, as amended, and St. 1942, c. 13.
St. 1941, c. 719, Part II, § 7, provides:
"The governor shall have full power and authority to co-operate with
the federal authorities and with the governors of other states in matters
pertaining to the common defense or to the common welfare, and also so
to co-operate with the military and naval forces of the United States and
of the other states, and to take any measures which he may deem proper
to carry into effect any request of the President of the United States for
action looking to the national defense or to the public safety."
St. 1942, c. 13, § 2, provides:
". . . the governor, in addition to any other authority vested in him by
law, shall have and may exercise any and all authority over persons and
P.D. 12. 69
property, necessary or expedient for meeting the supreme emergency of
such a state of war, which the general court in the exercise of its consti-
tutional authority may confer upon him as the supreme executive magis-
trate of the commonwealth and commander-in-chief of the military and
naval forces thereof, ..."
By section 3 of said chapter 13, the Governor may exercise any power,
authority or discretion conferred on him by any provision of said chapter
13 or of chapter 719 of the Acts of 1941 by the issuance or promulgation
of executive orders or general regulations.
The preamble to said chapter 13 reads in part:
''The supreme emergency of a world wide war, . . . has resulted in
conditions of imminent danger, . . . calling for a state of preparedness
to meet such dangers by the commonwealth ... so that the sovereign
authoritj' of the commonwealth and of its 'supreme executive magis-
trate' and 'commander-in-chief, for the protection of the government
and its citizens . . . may be exercised when needed for the support of
the national government in the prosecution of the war ..."
While the Supreme Judicial Court of Massachusetts has not had occa-
sion to pass upon or define the extent or limit of the authority conferred
upon the Governor by the foregoing statutes, it is clear from their ex-
press purpose and from their context that the Legislature intended to
confer broad power upon the Governor to deal with matters affecting the
common defense and the common welfare and arising out of the present
emergency.
The rapidly changing conditions resulting from the prosecution of a
total war render it practically impossible for the Legislature to prescribe
a formula by which it could determine in advance whether a given matter
pertains to the common defense or the common welfare, or is necessary
for the support of the National Government in the prosecution of the
war. The determination as to whether a particular matter does in fact
so pertain or is in fact necessary to support the National Government
within the scope of the statutes referred to above has been left by the
Legislature to the sound discretion of the Governor.
In Helvering v. Davis, 301 U. S. 619, the Court considered the phrase
"common defense and general welfare" as that phrase is used in U. S.
Const., Art. I, § 8, which reads in its applicable part as follows:
"The congress shall have power to . . . provide for the common de-
fence and general welfare of the United States; . . ."
At page 640 the Court said :
"The line must still be drawn between one welfare and another, be-
tween particular and general. Where this shall be placed cannot be
known through a formula in advance of the event. There is a middle
ground or certainly a penumbra in which discretion is at large. The
discretion, however, is not confided to the courts. The discretion belongs
to Congress, unless the choice is clearly wrong, a display of arbitrary
power, not an exercise of judgment. This is now familiar law. 'When
such a contention comes here we naturally require a showing that by no
reasonable possibility can the challenged legislation fall within the wide
range of discretion permitted to the Congress.' "
Similarly, the discretion as to whether a particular matter pertains to
the "common defense or to the common welfare" or is "needed for the
70 P.D. 12.
support of the national government in the prosecution of the war," as
those phrases have been used by the Legislature in the foregoing statutes,
appears to be lodged with the Governor so long as that discretion is an
exercise of judgment and not a display of arbitrary power.
That the Legislature may in its wisdom authorize the construction of
a bridge over a public way is clear. St. 1941, c. 18; St. 1939, c. 340;
St. 1938, c. 53; Cushing v. Boston, 128 Mass. 330; Opinion of the Jus-
tices, 208 Mass. 603.
Whether similar authority may be exercised by the Governor in a given
case by force of the emergency powers conferred upon him by the Legis-
lature depends upon the Governor's determination that the exercise of
such authority pertains to the "common defense or to the common wel-
fare" or is "needed for the support of the national government in the
prosecution of the war."
Emergency powers of the Governor should be exercised with great care
where it appears that the effect of a particular executive order will be
primarily to benefit a private individual or company rather than immedi-
ately to promote the war effort. If there is room for doubt as to whether
the effect of such an order as is requested here will be primarily to pro-
mote the war effort or, rather, primarily to benefit a private individual,
the decision is one to be made by Your Excellency in the light of all the
facts pertaining to the relationship of the proposed bridge to the common
defense and to the common welfare and the support of the national
government in the prosecution of the war.
Very truly yours,
Robert T. Bushnell, Attorney General.
Workme7i's Compensation — Employers — Number of Employees.
Aug. 31, 1943.
Mr. John W. Henderson, Assistant Secretary, Department of Industrial
Accidents.
Dear Sir: — On behalf of the Department of Industrial Accidents,
you have directed my attention to the second sentence of G. L. (Ter.
Ed.), c. 152, § 1, par. (4), as inserted by St. 1943, c. 529, § 3, which sen-
tence reads as follows:
"The provisions of this chapter shall remain elective as to employers of
the following: ^ — persons employing six or less, or persons employed as
domestic servants and farm laborers, members of an employer's family
dwelling in his household, and persons other than laborers, workmen and
mechanics employed by religious, charitable or educational institutions."
You state that "the Department has knowledge that there is a group of
employers which, during a portion of a given year, employs six persons or
less, and which, during the remainder of the year, employs seven or more
persons," and that the Department requests my opinion "as to the basis
upon which determination may be made as to whether any such employer
shall provide for the payment to his employees of the compensation pro-
vided b}^ chapter 152 or whether the provisions of said chapter shall
remain elective as to such employer."
In my opinion employers who employ six or less employees as defined
in the statute on some occasions and more than six on other occasions are
required to provide for the payment of the compensation secured by the
P.D. 12. 71
statute to all such persons in their employ during the time they employ
more than six, and that during the time the}^ employ six or less they are
not required to provide for such payment but may elect to do so.
The plain language of the second sentence of said chapter 152, § 1,
paragraph (4), as amended, does not require an employer to provide for
the payment of compensation to his employees as defined in said chapter
prior to the time when he actually employs more than six such employees
merely because it is anticipated that, at some future time, he will employ
more than six; nor do the words used require an employer to continue
to provide for the payment of compensation after he ceases to employ
more than six such employees.
"... no intent can be read into a statute which is not there either in
plain words or by fair implication. There are no means of ascertaining
the purpose and effect of a statute except from the words used when
given their common and approved meaning. They are to be read in the
light of attendant conditions and the state of the law existent at the time
of their enactment. But they cannot be stretched beyond their reason-
able import to accomplish a result not expressed." Bergeron, Petitioner,
220 Mass. 472, 475.
The conclusion here reached accords with decisions in other states con-
struing provisions of Workmen's Compensation Acts limited in their
application to employers of a specified number of emplo3^ees. It has been
held that employees whose employment had been terminated before an
injury' occurred could not be counted. Tidly v. Carter, 86 N. H. 301;
South Oklahoma Town Co. v. Acree, 166 Okla. 110. In Deatherage <fe
Renfro v. Storey, 158 Okla. 285, an employer who employed men in ex-
cess of the number specified in the act when the work warranted it and
had taken out workmen's compensation insurance to insure the extra
force, but who employed less than the required number at the time the
injur}' in question occurred, was held not to be subject to the act.
The interpretation of the second sentence of said paragraph (4) re-
quired by its wording may present difficulties in determining when a
particular employer becomes subject to or ceases to be subject to the
statute, in the giving of certain notices to employees required by the
statute and in other respects. However, as was said in Armburg v. Bos-
ton and Maine Railroad, 276 Mass. 418, 424:
"These and other differences appear to us to constitute merely diffi-
culties of a kind not infrequently encountered in the practical adminis-
tration of affairs, but not to amount to insurmountable obstacles in the
way of construing the scope of the statute according to its words and
purpose."
It may be the fact that the same employees may be alternately within
and without the protection of the statute for varying periods of time and
that it will be troublesome in such cases to establish a basis for insurance
or self-insurance; but, as the Court said in the Armburg case at page 425
in considering a somewhat similar problem :
"That, however, is a legislative and not a judicial question. We can
only interpret the statute as it was framed.'-'
Very truly yours,
Robert T. Bushnell, Attorney General.
72 P.D. 12.
Teachers' Retirement System — Teacher Employed by Both Town and
Commonwealth — Basis of Payment to Annuity Fund.
Aug. 31, 1943.
Hon. Walter F. Downey, Commissioner of Education.
Dear Sir : — In a recent letter you have advised me that a certain
member of the Teachers' Retirement Association has been employed
since September, 1937, as a full-time teacher in the public day schools of
Westfield and that he receives a salary of twenty-one hundred dollars per
year. Since January, 1943, he has also been employed as an x-ray tech-
nician by the Commonwealth at a salary of fifteen hundred dollars per
year, having been appointed as a military substitute. It appears that
he is permitted to perform his work for the Commonwealth during such
time as he has available from his teaching position and finds suitable
and that his total time of service in both capacities amounts to more
than full-time service by a public day school teacher.
You have asked my opinion on behalf of the Teachers' Retirement
Board as to whether the assessment to be paid by this member to the
Annuity Fund of the Teachers' Retirement Association should be based
on the total of the salaries received by him for services rendered both as
a teacher in the pubhc day school and as an employee of the Common-
wealth, although the time devoted to such service exceeds full-time service
by a public day school teacher.
I answer your question in the affirmative, provided the assessment so
paid shall not exceed the amount fixed by G. L. (Ter. Ed.) c. 32, § 9, par. 2,
as amended.
The first paragraph of G. L, (Ter. Ed.) c. 32, § 19, provides as follows:
"A person who is principally employed as a teacher in the public schools
but who is also employed by the commonwealth shall, if a member of
the teachers' retirement association, pay assessments to the annuity fund
established by paragraph (2) of section nine, based on the total salary
received for service as a public school teacher and for employment by the
conmion wealth ; provided, that the annual assessment of such a member
shall not exceed the maximum annual assessment established by said para-
graph (2)."
It is plain from the facts laid before me that the status of the particular
individual under consideration falls squarely within the above-quoted
paragraph. He is principally employed as a teacher in the public schools;
he is, at the present time, also employed by the Commonwealth, and he
is a member of the Teachers' Retirement Association.
There is nothing in said paragraph to indicate that the Legislature
intended that a person whose total time of service, both as a teacher in
the public schools and as an employee of the Commonwealth, exceeds
full-time service by a public school teacher should not fall within the scope
of its provisions. The language used by the Legislature in the first para-
graph of said section 19 is plain and unambiguous and, as the Court said
in the case of Bergei'on, Petitioner, 220 Mass. 472, 475:
"... no intent can be read into a statute which is not there either in
plain words or by fair implication. There are no means of ascertaining
the purpose and effect of a statute except from the words used when given
their common and approved meaning. They are to be read in the light
of attendant conditions and the state of the law existent at the time of
P.D. 12. 73
their enactment. Bui they cannot be stretched beyond their reasonable
import to accompHsh a result not expressed."
Reference to the legislative history of the foregoing section confirms
the opinion herein expressed. The provisions of G. L. (Ter. Ed.) c. 32,
§ 19, stem from St. 1920, c. 56, § 1, the passage of which was recom-
mended by the Teachers' Retirement Board. Its recommendation, see
House Document No. 141 of 1920, was as follows:
"A person employed principally as a teacher in the public schools, but
also employed by the Commonwealth, who is a member of the Teachers'
Retirement Association, can pay assessments based only upon the salary
received for public school service.
A person employed principally by the Commonwealth may be a mem-
ber of both the retirement association for State employees and the Teach-i
ers' Retirement Association, and upon retirement he will be entitled to a
retiring allowance under the two systems.
A person who is not a member of the two associations would, upon
retirement, receive a retiring allowance based only on his public school
service if a member of the Teachers' Retirement Association, or a retiring
allowance based on his State service if a member of the State Employees'
Retirement Association.
Legislation should be passed so that a person can be a member of only
one association and receive credit for his total service."
The foregoing recommendation contains no expression which would
indicate that the Legislature, in enacting what is now G. L. (Ter. Ed.)
c. 32, § 19, intended that the mere fact that the total of the service ren-
dered as a public school teacher and as an employee of the Common-
wealth exceeds the service rendered by a full-time public day school
teacher should exclude from the operation of said section one who would
otherwise fall within its provisions.
Very truly yours,
Robert T. Bushnell, Attorney General.
Veteran — Basis of Retirement Allowance — Maintenance.
Sept. 7, 1943.
Hon. Paul W. Foster, Chairman, Commission on Administration and
Finance.
Dear Sir : — You have asked my opinion upon three questions relative
to the meaning of St. 1943, c. 514, § 4.
Chapter 514, by its first three sections, amends G. L. (Ter. Ed.) c. 32,
by striking out sections 56 to 58, relative to the retirement of certain
war veterans in the public service and inserting in place thereof new sec-
tions which provide for such retirement in the same manner as before,
but include for the first time in the basis upon which retirement allow-
ances are to be established the value of such maintenance to which a
veteran was entitled "while he was holding the grade held by him at
his retirement."
Section 4 of said chapter provides as follows:
"This act shall apply to the retirement allowances of veterans subject
to any provisions of sections fifty-six to fifty-eight, inclusive, of chapter
thirty-two of the General Laws, as amended by sections one to three,
74 P.D. 12.
inclusive, of this act, retired since December thirty-first, nineteen hun-
dred and twenty, and prior to the effective date of this act, as well as
to those retired on or after said efifective date."
1. Your first question reads:
"Does the change provided for in this act require the recomputation
of the retirement allowances paid to retired veterans since December 31,
1920, and the payment of the differences, if any, between the new compu-
tation and the amount actually paid over this entire period?"
The terms of section 4, read in the context of the whole chapter, re-
quire a recomputation of the retirement allowances of such veterans as
received "maintenance" when in the public service and the payment to
them hereafter of increased allowances. A payment of the difference
between allowances figured upon the new basis and those computed and
paid upon the old basis since 1920 is not required to be made by the pro-
visions of the said act.
A statute is not to be interpreted as operating retroactively in the
absence of express provisions indicating a legislative intent to that effect.
Hanscom v. Maiden, etc., Gas Light Co., 220 Mass. 1, 2, 3; O'Donnell v.
Registrar of Motor Vehicles, 283 Mass. 375, 379.
The phraseology of chapter 514 shows an intent to establish an in-
creased scale of allowances for certain veterans who had retired since
1920 and before the effective date of the act, but does not indicate an
intention to apply the new scale retroactively so as to provide for pay-
ment of the dift'erence between the old and the new las of the past years.
2. Your second question reads:
"In the case of a veteran who is retired as of August 31, 1943, is the
amount of his retirement allowance to be computed to include mainte-
nance?"
Chapter 514 becomes effective September 10, 1943. Any retirement
allowance payable after that date is to be computed on a basis which
includes past maintenance, and any allowance paid before such date is to
be computed on a basis which does not include maintenance.
3. Your third question reads:
"If you determine that the new act is not retroactive to the extent of
requiring the payment of the difference between the new basis of compu-
tation and that in effect prior to the effective date of the act, should all
retirements be readjusted in accordance with the act and payments made
after the effective date on a new basis?"
I answer this question in the affirmative for reasons already set forth.
Very truly yours,
Robert T. Bushnell, Attorney General.
Constitutional Law — Anti-Aid Amendment — Lunches for School Pupils.
Sept. 20, 1943.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — You have informed me that, under a plan made by the
Federal Food Distribution Administration, the Department of Educa-
tion and the Department of Pubfic Welfare under agreement with the
P.D. 12. 75
Distribution Administration, acting as sponsors for the plan in Massa-
chusetts, will make agreements with private and parochial as well as
pubhc schools, on behalf of the Distribution Administration, to reimburse
such schools for the cost of meals served school children; that upon re-
ceipt from the said departments of reports of the several schools of the
money spent by them, respectively, for such meals, the Distribution
Administration from time to time will transmit through you to the Com-
monwealth checks drawn upon federal funds to cover the amount neces-
sary to reimburse the schools, and that the Commonwealth from the
proceeds of such checks will, through the said departments, reimburse
the several schools for the moneys which each has so expended. You
have informed me that no money of the Commonwealth itself is at any
time to be used to make payments to the schools, either as advances or
as reimbursements.
You have asked nie whether there is anything in this plan which is
"contrary to the Anti-aid Amendment," Mass. Const. Amend., Art.
XL VI.
Upon the facts of which you have informed me I answer your question
in the negative.
Art. XLVI of the Amendments to the Constitution of Massachusetts
in its applicable parts reads:
"Section 1. No law shall be passed prohibiting the free exercise of
religion.
Section 2. All moneys raised bj'^ taxation in the towns and cities for
the support of public schools, and all moneys which may be appropriated
by the commonwealth for the support of common schools shall be applied
to, and expended in, no other schools than those which are conducted
according to law, under the order and superintendence of the authorities of
the town or city in which the money is expended; and no grant, appro-
priation or use of public money or property or loan of public credit shall
be made or authorized by the commonwealth or any political division
thereof for the purpose of founding, maintaining or aiding any school or
institution of learning, whether under public control or otherwise, wherein
any denominational doctrine is inculcated, or any other school, or any
college, infirmary, hospital, institution, or educational, charitable or reli-
gious 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, except
that appropriations may be made for the maintenance and support of
the Soldiers' Home in Massachusetts and for free public libraries in any
city or town, and to carry out legal obligations, if any, already entered
into; and no such grant, appropriation or use of public money or prop-
erty or loan of public credit shall be made or authorized for the purpose
of founding, maintaining or aiding any church, religious denomination or
society."
As employed in this amendment the words "moneys", "money" and
"public money" means monej^ belonging to the Commonwealth or one
of its political subdivisions. Money or funds which are those of the
United States are not comprehended within the meaning of the quoted
words as employed in the amendment.
Under said plan the Departments of Education and Public Welfare act
merely as agents of the Federal Government to distribute on its behalf
76 P.D. 12.
money which at all tunes, when represented by checks or when received
by negotiation of the checks, is that of the United States and not that of
the Commonwealth. »
The distribution to parochial and private as well as public schools of
such federal money by the Commonwealth, acting through its depart-
mental officers, under the tenns of the said plan, is not within the sweep
of the prohibitions of the Forty-sixth Amendment.
Very truly yours,
Robert T. Bushnell, Attorney General.
Metropolitan Water Districts — Assessments — Valuations of Property.
Sept. 24, 1943.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir: — You have asked my opinion as to what is the "proper
percentage table" (by which words I assume you mean a proper basis
of apportionment) to be used in prorating the service charges of the
metropolitan districts for 1943.
You state that you are in doubt as to whether water assessments upon
such districts, which are to be made by you under the provisions of G. L.
(Ter. Ed.) c. 92, § 26, as amended, should be based upon "valuations"
for the municipalities in such districts formulated by the Commissioner
of Corporations and Taxation in 1942, and reported by him to the Legis-
lature in what you refer to as Document 19, or whether such assessments
should be based upon the "valuations" as set up by the Legislature for
the state tax for 1941-1943 in St. 1941, c. 141, as amended by St. 1941,
c. 633, or upon the "valuations" set up by the Legislature for the state
tax for 1944-1945 in St. 1943, c. 294.
In my opinion, the valuations estabhshed by St. 1941, c. 141, as amended
by St. 1941, c. 633, constitute the only basis of apportionment to be used
by you in the current year for the purpose of prorating the service charges
of the metropohtan districts.
St. 1941, c. 141, as amended by St. 1941, c. 633, establishes valuations
of property in all cities and towns of the Commonwealth, and for the
purpose of state and county taxes constitutes such "valuations" a basis
of apportionment for the years 1941, 1942 and 1943.
By St. 1943, c. 294, the Legislature established "valuations" of prop-
erty in the cities and towns to be used as the basis of apportionment of
state and county taxes for the years 1944 and 1945.
G. L. (Ter. Ed.) c. 92, was amended by St. 1943, c. 543. Section 1 of
said chapter 543 defined "valuation" for the purpose of said chapter 92,
with relation to the various assessments of the metropolitan districts,
including the water assessments to be made by you, as follows:
"As used in this chapter, the word 'valuation' means the taxable valu-
ation last established by the general court as a basis of apportioimient
for state and county taxes, ..."
The plain words of this definition ehminate from use by j^ou the "valu-
ations" formulated by the Commissioner of Corporations and Taxation in
1942 and contained in Document 19, as the basis on which to levy the
assessments of the metropolitan districts. "Valuations" established by
the Commissioner of Corporations and Taxation clearly cannot be said
to be "the taxable valuation last established by the general court."
P.D. 12. 77
While it is the fact that the taxable valuations last established by the
General Court as a basis of apportionment for state and county taxes
appear in St. 1943, c. 294, the valuations thus established were by the
express terms of said chapter 294 applicable only to the years 1944 and
1945.
It is inconceivable that by the use of the words "last established" in the
definition of the word "valuation" tlie Lejjjislature intended that the tax-
able valuations which they had fixed to provide a basis of apportionment
specifically for "the years nineteen hundred and forly-four and nineteen
hundred unci forty-five" should be used for the year 1943, for which year
valuations had been particularly established by the General Court by
said St. 1941, c. 141, as amended. Statutes relating to the same subject
must be read, if possible, so as to form an harmonious whole. Morse v.
Boston, 253 Mass. 247, at 252. The words "last established" in said St.
1943, c. 543, § 1, must be construed, to give expression to what plainly
was the intent of the Legislature, as meaning last established with rela-
tion to the current or past years, not as last established with relation to
some future period.
It follows that for the current year the "valuations" established by
St. 1941, c. 141, as amended, for the year 1943, among others, are to be
used in prorating the service charges for water assessments of the metro-
politan districts.
It becomes unnecessary to answer the second question propounded by
you which is predicated upon my being of the opinion that the said water
assessments are to be prorated upon valuations established by St. 1943,
c. 294, rather than St. 1941, c. 141, as amended.
Very truly yours,
Robert T. Bushnell, Attorney General.
Emergency Public Works — Authority for Making Postwar Contracts.
Sept. 28, 1943.
Emergency Public Works Commission.
Gentlemen : — You have laid before me a draft of a proposed form of
contract in two parts, which is to be used by yo ir Commission in making
contracts with various architects and engineers with relation to postwar
public works.
Part I of this form constitutes a contract between your Commission
and an architect or engineer, by which the contractor agrees to make
preliminary' studies and to furnish to the Commission prints and descrip-
tive specifications and other infonnation which the Commission may de-
sire for its study and understanding of a designated project; to prepare
forms, plans, specifications and proposals to be used to obtain bids for
construction of such a project; and to confer with the Commission and
render other like services. Your Commission agrees to compensate the
contractor for work so done in a manner described in the contract.
Part II of this form constitutes a separable contract, by which the
. contractor agrees, upon receipt of a written order from the Commission,
to supervise the actual construction of the designated project after the
conclusion of the present war. Article II of this part of the contract
contains provisions as to the work to be performed by the contractor in
such supervision and an agreement by the Commonwealth, through the
Commission, to pay compensation in a designated manner for the work
performed by the contractor.
78 P.D. 12.
With relation to this contract you have asked my opinion upon the
following question of law :
"Has the Commission, under the provisions of chapter 517 of the Acts
of 1943, authority to make a contract with architects and engineers for
performing the services of supervising construction as stipulated in Part
II, Article II of the enclosed form of contract?"
I answer this question in the negative.
The authority of your Commission to enter into contracts relative to
construction to be carried on after the war is derived solely from the pro-
visions of St. 1943, c. 517.
This chapter, which is an emergency act, is entitled:
"An Act authorizing the emergency public works commission to pre-
pare a post-war program of public works, making the chairman of the
state planning board a member thereof, and extending the life of said
commission."
Its applicable sections read :
"Section 1. The emergency public works commission, established by
section one of chapter three hundred and sixtj^-five of the acts of nineteen
hundred and thirty-three, is hereby authorized and directed to prepare
a program of post-war public works which may be undertaken by the
commonwealth, and to submit such program to the governor. In the
preparation of the program said commission shall give due consideration
to war and post-war conditions, and the program shall include provisions
deemed desirable for the preparation, during the continuance of the war,
of plans, surveys and other information needed to permit prompt, effec-
tive and economical action in the period immediately following the termi-
nation of the existing states of war between the United States and certain
foreign countries. Said commission shall prepare and maintain current
progress information on the design of post-war projects by municipalities
of the commonwealth, and maintain liaison with federal officials and
agencies concerned with post-war planning.
Section 2. Said commission, with the approval of the governor, may
accept on behalf of the commonwealth any federal funds or federal assist-
ance, or both, for financing the cost of such plans and specifications as
the commission may deem necessary in order to prepare a program of
post-war projects which may readily be undertaken when funds are made
available for the construction thereof, and for such plans and specifica-
tions may expend, under the provisions of said chapter three hundred
and sixty-five, and acts in amendment thereof and in addition thereto,
any unexpended balance of state or federal funds made available by or
under the provisions of said act and amendments thereof or additions
thereto. In carrying out the provisions of this act, said commission shall
have all the powers and duties hitherto conferred and imposed upon it
by said chapter three hundred and sixty-five, and acts in amendment
thereof and in addition thereto. Said commission may request and shall
receive from the several officers, departments, boards and commissions of
the commonwealth such assistance as it may require for the adequate
preparation of the aforesaid post-war program of public works. For the
purpose of this act only, the commission shall also include in its member-
ship the chairman of the state planning board, ex officio."
P.D. 12. 79
The powers which the Commission derive.-! from St. 1933, c. 365, as
amended, are merely revested in the Coinmission by the terms of section 2
for the purpose of effectuating the authority given by chapter 517 itself
in relation to its subject matter. The extent of such authority is expressed
within the four corners of ciiaj)ter 517.
The Commission is empowered
"to prepare a program of post-war public works which may be undertaken
by the commonwealth, and to submit such program to the governor . . .
the program shall include ))rovisions deemed desirable for the prepara-
tion, during the continuance of the war, of plans, surveys and other in-
formation needed to permit prompt, effective and economical action in
the period innnediately following the termination of . . . war . . ."
Such a grant of power to your Commission "to prepare a program"
does not intlicate an intent upon the part of the Legislature to authorize
you to make contracts for work which may possibly be called for in the
future as a result of a possible adoption of the "program" which you
submit to the Governor.
Authority to make contracts to be performed in the future, if certain
necessary conditions then exist, is not specifically conferred upon your
Commission by the statute under consideration.
Such authority cannot well be said to be derived by implication from
the power vested in you by the statute to prepare a postwar program of
the type indicated in chapter 517, especially as no appropriations with
relation to payment upon such contracts have been made by the Legis-
lature.
Accordingly, I cannot advise you that the draft of the contract which
you have laid before me is satisfactory as to form.
V^ery truly yours,
Robert T. Bushnell, Attorney General.
Insurance — Pooling of Workmen^ s Compensation Risks.
Oct. 5, 1943.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir : — You have asked me several questions as to the assign-
ment of rejected risks and pooling of workmen's compensation insurance
under the provisions of G. L. (Ter. Ed.) c. 152, §§ 65A to 65M, inclusive.
Sections 65A to 65M, inclusive, were inserted in the Workmen's Com-
pensation Act, chapter 152 of the General Laws, by St. 1939, c. 489, under
the caption "Assignment of Rejected Risks and Pooling." The purpose
of these sections, as indicated by the title of said chapter 489, was to pro-
vide "for the equitable distribution of rejected risks among insurers of
workmen's compensation, and the pooling of losses in connection with
such risks."
This purpose is effected by provisions of the sections whereby the Com-
missioner of Insurance under certain conditions is authorized to designate
an insurer for an employer whose application for workmen's compensa-
tion insurance has been rejected by two insurance companies. The com-
pany so designated as an insurer of a risk is thereupon required to issue
a policy to the employer upon the payment of the i)remium therefor.
The Commissioner is required to distribute rejected risks among insurers
equitably in accordance with a formula set forth in said section 65A. The
80 P.D. 12.
losses incurred under policies so assigned are required to be equitably
distributed annually among all insurers transacting this type of insurance
in the Commonwealth through two separate reinsurance pools, one com-
posed of stock companies and the other made up of non-stock companies.
Any insurer may voluntarily provide insurance, at the termination of any
policy period, to an employer whose insurance has been previouslj'^ as-
signed, but when so doing such insurer shall pay into the appropriate pool
an amount equal to any excess of losses incurred over the premiums col-
lected on account of the policy during the entire period when the em-
ployer was insured as an assigned risk. Each pool is authorized to adopt
and amend rules and regulations, subject to approval by the Commis-
sioner of Insurance, consistent with law, which may include regulations
for subsequent adjustment of payments originally made on behalf of
assigned risks on the basis of estimated losses incurred.
1. Your first question reads:
"Is it necessary that a new assigmnent of a risk be made under G. L.,
c. 152, § 65A, whenever there is a change in the set up of the employer's
organization; that is, if an employer should change from an individual to
a partnership or a corporation or vice versa?"
I am of the opinion that whenever there is a change in the character of
an employer such as is indicated in your question, whereby a new entity
becomes the employer in place of one previously insured and assigned to
a pool, there must be a fresh assignment of the new employer to an in-
surer designated by the Commissioner if the risk is to be insured there-
after as one of the "assigned pohcies" under the terms of said section 65A.
2. Your second question reads :
"If an insured employer changes over his organization as described in
Question 1 but continues to carry on the same type of business at the
same location after such reorganization occurs, may his existing pohcy
be endorsed to include the new organization and thereby be continued in
force under the original assignment or should the entity resulting from
the reorganization be treated as a new employer whose risk has been sub-
ject to a new assignment and whose previous coverage must be cancelled
and rewritten as a new risk?"
I am of the opinion that, irrespective of the continuance of an employ-
er's business without change of type or location, if, as I have previously
stated, there is a change in the character of an employer such as is indi-
cated in your first and second questions whereby a new entity becomes
the employer in place of one previously insured by an insurer pursuant
to a designation by the Commissioner, there must be a fresh assignment
to an insurer designated by the Commissioner if the risk is to be insured
thereafter as one of the "assigned pohcies" under the terms of said section
65A.
A change of an employer, such as you refer to in these two questions,
from an individual to a corporation, or from an individual to a partner-
ship, or from a partnership to a corporation, or vice versa, is of such a
nature as to substitute a new employer for an old.
The entity resulting from such a change is new and distinct from the
preceding one and, irrespective of a lack of change in the character of the
business carried on by the newer entity from that maintained by the
older, the change results in a termination of the relations between an em-
P.D. 12. 81
ployer and his employees, and the substitution of a new relationship
between a new employer and the employee.
This being so, the new entity is in fact and law a new employer for
whom a new assignment, if necessary, must be made by the Commissioner
to an insurer designated by him. No provision is made in the said sec-
tions for continuing the existing policy in force by endorsement or other-
wise so as to provide a continuing coverage for the new employer who
came into being by reason of a change in the nature of the organization
originally insured. No such phraseology- is to be found in the sections
indicating by implication an intent upon the part of the Legislature to
provide for a continuation of an existing policy after such a change in
the nature of the insured, as is referred to in your questions.
". . . no intent can be read into a statute which is not there either in
plain words or by fair impHcation . . . the words used (in a statute) . . .
cannot be stretched beyond their reasonable import to accomplish a result
not expressed." Bergeron, Petitioner, 220 Mass. 472, 475.
If the insurer of the old employer, either by acceptance of an assign-
ment of the policy from the old to the new employer or by an endorse-
ment of the polic}' or by issuing a new policy, elects to act as an insurer
of the new employer, no action on the part of the Commissioner is re-
quired. The insurer furnishes insurance to the new employer, the latter's
first coverage. The new employer has never been rejected as a risk by
any company and consequently the provisions of said section 65A with
relation to the assignment and pooling of "rejected risks" have no appli-
cation to it nor to its insurer.
3. Your third question reads:
"If the answer to question 2 is that the entity resulting from the re-
organization must be treated as a new employer and be subject to a new
assignment, is it necessary that an insurance company which assumes
coverage of such an employer on its own account voluntarily, reimburse
the pool, by which a previous policy or policies of the employer whose
organization has been readjusted were reinsured, in the amount specified
in G. L., c. 152, § 65F?"
I answer this question in the negative.
Said section 65F reads :
"At the termination of any workmen's compensation insurance policy
issued to an emploj'^er whose insurance has been assigned to an insurer
under section sixtj^-five A, any insurer may voluntarily provide such in-
surance for such emploj'er on its own behalf, but such insurer shall pay
into the pool by which such policy or policies of such employer were
reinsured an amount equal to any excess of losses incurred over the pre-
miums collected on account of such policj^ or policies during the entire
period of insurance as an assigned employer."
Since an insured, by reason of a reorganization such as you have de-
scribed in your first two questions, becomes, as I have already stated,
a new entity in such a sense that it is to be regarded as a new employer,
one who has never been rejected by any company and one whose insur-
ance has never been "assigned", it is plain that the new entity does not
come within the phraseology of section 65F of said chapter 152 so as to
be within the description in said section 65F of "an employer whose in-
82 P.D. 12.
surance has been assigned to an insurer." It is only with regard to such
an assigned employer, described in section 65F, that the further provisions
of that section, requiring payment from a voluntary insurer to a pool to
reimburse it for losses incurred over premiums collected on account of
pohcies of an "assigned employer", are applicable.
4. Your fourth question reads:
"Is it necessary in order that the statute be complied with that there
be a certification to the Commissioner of Insurance that the employer is
entitled to workmen's compensation insurance at the termination of each
policy and at least annually before the Commissioner reassign the risk
or, to state this question differently, may a risk be automatically assigned
or is it necessary that the Department of Industrial Accidents certify to
the Commissioner that the employer is entitled to workmen's compensa-
tion insurance before any reassignment may be made?"
In answer to this question I advise you that I am of the opmion that
a risk may not be "automatically" assigned, but that the Department
of Industrial Accidents is to certify to the Commissioner that an em-
ployer is entitled to workmen's compensation insurance before any re-
assignment may be made.
Said section 65A provides for the manner in which assignments of em-
ployers by the Commissioner to insurers for the purpose of securing poli-
cies of workmen's compensation insurance are to be made, and it pre-
scribes the prerequisite conditions which are to be complied with before
the Commissioner can make assignments. Its provisions are specific and
appear to cover the subject matter. No exceptions to the requirements
for assignment are set forth therein and none appear to arise by implica-
tion from any provisions of said sections 65A to 65M.
5. Your fifth question reads:
"May an 'assigned risk' which has been renewed be renewed as of the
anniversary date of the policy even though the risk has not been formally
assigned until a later date?"
I answer your question in the negative.
Said section 65A provides that a policy of insurance shall be issued to a
previously rejected employer only after an assignment has been made by
the Commissioner and upon receipt of the payment of the premium
therefor. This section provides a mode of renewal only by designation
and issuance of the pohcy after such designation. It does not provide
for coverage under such designation and issuance to be given for a period
prior to designation and issuance.
However convenient for the insured or insurer a dating back of the
coverage of the policy to its anniversary date might be, no such practice
is authorized specifically by statute nor is there any language therein
employed which would indicate by implication an authorization for such
a practice.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 83
Insurance — Workmen^s Compensation — Self-Insurers — Policies.
Oct. 13, 1943.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir: — You have asked my opinion on several questions relative
to sections 25A to 25D of the Workmen's Compensation Aft, G. L. (Ter.
Ed.) c. 152, which sections were inserted by St. 1943, c. 529, § 7, under
the caption "Compulsory Compensation and Self-Insurance."
The purpose of the amencbiients made in said chapter 152 by said
St. 1943, c. 529, was to provide a sj^stem of compulsory workmen's com-
pensation. The system requires emploj^ers of more than six persons, with
certain designated exceptions, to provide for the payment of compensa-
tion to their employees by insurance with an insurance company, or to
provide for such payment as a "self-insurer" by complying with certain
conditions. An employer may become such a "self-insurer" by obtaining
an annual license from the Department of Industrial Accidents upon con-
forming to certain designated requirements. These requirements consist
of making a deposit with the State Treasurer of such amount as the said
department may require, which deposit may be used on order of his de-
partment for the purpose of paying to employees the benefits provided
for by the workmen's compensation law; or by furnishing annually to
the State Treasurer a bond with a corporate surety company in such an
amount not less than ten thousand dollars as the department may require,
upon condition that if the employer lose his license he shall either deposit
securities with the State Treasurer or shall furnish the department, on de-
mand, with a single premium noncancellable policy of workmen's com-
pensation insurance "securing him against Siny liability that may have
arisen under this chapter." It is also provided among other matters that
the department may require a self-insurer, as a further guarantee of his
ability to pay workmen's compensation benefits to his injured employees,
to "reinsure" his compensation risk against "catastrophe", such "re-
insurance" to "be placed only with an insurance company admitted to
do business in this commonwealth."
Failure to provide for the pajmient of the compensation required by
chapter 152 is punishable by fine or imprisonment.
1. Your first question reads:
"Is the function of the Department of Industrial Accidents, in so far as
the approval of the single premium noncancellable policy is concerned,
limited to the approval of the amount and of the carrier?"
In my opinion the required approval of the department is not so limited
but extends to the form of the policy' as well.
Said section 25A (2) (a), provides in its applicable portion:
". . .if the department so requires, he (the employer) furnishes the de-
partment with a single premium noncancellable policy, approved by the
department, securing hhn against any liability that may have arisen under
this chapter."
The power of approval of policies, unless specifically limited, includes
the power of approval as to their form.
Although the duty of approving the form of policies of workmen's com-
pensation insurance generalh' had been placed upon the Commissioner of
84 P.D. 12.
Insurance by said chapter 152, section 55, since the inception of the act,
the provisions of said section 25A, enacted in 1943, deal with a particular
type of compensation policy to be used for a purpose not before contem-
plated in the statute, and the authority to approve such a policy is spe-
cifically vested in the Department of Industrial Accidents by the quoted
provisions of said section 25A. These provisions, so specifically made
and so explicitly expressed, by implication restrict the authority en-
trusted to the Commissioner of Insurance to approve the generality of
workmen's compensation policies as to form by vesting the authority to
approve this particular type of policy in the Department of Industrial
Accidents.
2. Your second question reads :
** Since G. L., c. 152, § 55, has not been repealed or rendered inoperative
as to self -insurers, is it necessary that the form of a single premium non-
cancellable policy referred to above be approved by the Commissioner of
Insurance before its issuance?"
I answer this question in the negative. Since, as I have stated in mj''
answer to your first question, the authority to approve the policy under
consideration has been vested in the department, it has by implication
been withdrawn from the scope of the Commissioner's general power of
approval as to form and hence, with relation to this particular poUcy, the
Commissioner's approval as to form is no longer required.
3. Your third question reads:
"In view of the requirement of section 54A quoted above that the
contract insure the payment of the compensation provided for by chapter
152, is the bond and the additional bond referred to in subdivision (6) of
subsection (2) of section 25A referred to above a policy of workmen's
compensation insurance which is required to receive the prior approval
of the Commissioner of Insurance before it may be issued?"
I answer this question in the negative.
G. L. (Ter. Ed.) c. 152, §§ 54A and 55, as amended, provide:
"Section 54A. Every contract or agreement the purpose of which is
to insure an employer in whole or in part against liability on account of
injury or death of an employee, other than a domestic servant or a farm
laborer, shall be void unless it also insures the payment of the compensa-
tion provided for by this chapter. Nothing in this section shall affect any
such contract or agreement made with an employer of less than six per-
sons. The second paragraph of section fifty-five shall not apply in case
of a contract or agreement made void by this section.
Section 55. No policy of workmen's compensation insurance shall be
issued or delivered until a copy thereof has been filed with the commis-
sioner of insurance at least thirty days prior to such issue or delivery,
unless before the expiration of the thirty days the said commissioner shall
have approved the forai of the policy in writing, nor if the commissioner
notifies the company in writing that in his opinion the form of said policy
does not comply with the laws of the commonwealth, specifying the rea-
sons for his opinion; provided, that upon petition of the company the
opinion of the commissioner shall be subject to review by the supreme
judicial court.
Any policy of insurance issued in violation of this section or of any
other provision of this chapter shall nevertheless be valid and binding
P.O. 12. 85
upon the company issuing it, and the rights, duties and obUgations of
the parties thereto shall be determined by this chapter and chapter one
hundred and seventy-five."
The foregoing provisions of the workmen's compensation law have
existed in substantially tlieir present form for many years. The phrase
"Every contract or agreement the purpose of which is to insure an em-
ployer . . . against liability on account of injury or death of an em-
ployee" in said section o4A, and the phrase "No policy of workmen's
compensation insurance shall be issued or delivered until a copy thereof
has been filed with the conmiissioner . . ." in said section 55, do not
embrace a "bond" or an "additional bond" such as may be given by a
self-insurer under the provisions of subdivision (b) of subsection (2) of
said section 25A, which reads :
" (6) By furnishing annually to the state treasurer a bond with a cor-
porate surety company authorized to do business in this commonwealth,
in such form and in such an amount not less than ten thousand dollars
as may be recjuired by the department, said bond, however, to be upon
the condition that if the license of the principal shall be revoked or if the
department shall refuse to renew the license, the principal shall upon
demand fully comply with sub-paragraph (a) of this section relative to
the deposit of securities or a single premium non-cancellable policy. The
department shall, from time to time, determine the liabilities of a self-
insurer both incurred or to be incurred because of personal injuries to
employees under this chapter. The department may at any time require
an additional bond, similarly conditioned, or further security or permit a
decrease in the amount of said bond provided tlie amount of the bond or
the bonds in no case shall be less than ten thousand dollars. The lia-
bility of the surety shall not exceed in the aggregate the penal sum or
sums stated in any such bond or bonds or in any endorsements giving
effect to any such increase or reduction. The department may permit a
substitution of a new bond or bonds for the bond or bonds which have
been furnished."
A bond is not a policy of insurance. The bonds under consideration
do not run to an employer. The obligation of a principal or a surety upon
the bond or bonds mentioned in subsection (2) cannot reasonably be said
to be to "insure an employer."
It is plain, both by implication from the character of the instruments
as shown by the terms of subdivision (6) itself and from its express re-
quirement, that the bonds should be in such form and such amount as
may be required by the department, that the Legislature did not intend
that such bonds should be required to have the approval of the Com-
missioner under section 54A or section 55.
4. Your fourth question reads:
"Subdivision (c) of subsection (2) of section 25 A referred to above
authorizes the Department of Industrial Accidents to require a self-
insurer to reinsure his compensation risk against the catastrophe hazard
so as to further guarantee the payment of the benefits prescribed.
Since the catastrophe hazard contract is a primary obligation of the
insurance company and not a secondary obligation as usually prevails in
reinsurance contracts, is not the form of contract one of workmen's com-
pensation insurance such as is referred to in section 55 and upon which
86 P-D- 12.
the previous approval by the Commissioner of Insurance must be received
before its issuance?"
I am of the opinion that such a "catastrophe hazard contract" is not
a form of workmen's compensation insurance referred to in said section 55
which must be approved by the Commissioner before it is issued.
Said subdivision (c) reads:
"As a further guarantee of a self-insurer's ability to pay the benefits
provided for by this chapter to injured employees, the department may
require that a self-insurer reinsure his compensation risk against catas-
trophe, and such reinsurance, when so required, shall be placed only with
an insurance company admitted to do business in this commonwealth."
While the matter is not altogether free from doubt, it does not appear
to have been the intent of the Legislature, as expressed in the phraseology
of said subdivision (c), to provide that the policy under discussion should
be a contract of the insurance company, the primary obligation of which
inures to the benefit of the employee.
The Legislature has required in specific terms in said subdivision (c)
that the self-insurer is to "reinsure'' his compensation risk against catas-
trophe and has spoken of his action in so doing as "reinsurance".
"Reinsurance", as the word is ordinarily used in the statutes and in
business, contemplates a contract entered into between insurance com-
panies (II Op. Atty. Gen. 157) and denotes an obhgation on the part of
the reinsurer only to the one insured, not to those persons whom the latter
itself covered. It is in its essence a contract of indemnity. 33 C. J. §§ 715,
717, pp. 43, 45. Bouvier's Law Diet., Vol. 3, p. 2861. Allemannia F.
Ins. Co. V. Firemen's Ins. Co., 209 U. S. 326, 332; Faneuil Hall Ins. Co.
V. Liverpool, etc. Ins. Co., 153 Mass. 63; Manufacturers Fire & Marine
Ins. Co. V. Western Assurance Co., 145 Mass. 419; Pioneer Life Ins. Co.
V. Alliance Life Ins. Co., 374 111. 576; Stickel v. Excess Ins. Co., 136
Ohio St. 49.
The word "reinsurance" is used with this meaning in G. L. (Ter. Ed.)
c. 175, §§ 2 A and 20, as amended. Contracts of reinsurance are not
subject to the approval of the Commissioner as to form nor are they sub-
ject to his authority to fix rates. The Legislature must be presumed to
have known that there was a difference in meaning between the words
"insure" and "reinsure" and between "insurance" and "reinsurance".
It appears to have employed the words "reinsure" and "reinsurance"
in said subdivision (c) with deliberation, and, although they are not tech-
nically suitable to describe the relation between an individual and an
insurance company, they may not be ignored or treated as if employed
through misapprehension or mistake.
That the Legislature conceived of the "reinsurance" to which it re-
ferred as an agreement having the characteristics of an indemnity con-
tract is made plain by its use in said subdivision (c) as a description of
the purpose of such reinsurance of the phrase "As a further guarantee of
a. self-insurer's abiUty to pay the benefits ..." Such guarantee of ability
is addressed to the Commonwealth as an assurance of the employer's
financial adequacy; it indicates something furnished by the employer,
not as a direct benefit to the employees, but as an assurance to the State
of his ability to satisfy the obhgations- which he assumed.
The Legislature in employing the phraseology of said subdivision (c)
appears to have intended that the self-insurer should procure a policy
P.D. 12. 87
which would inure, by way of reimbursement for losses sustained, directly
to him and not directly to his employees as would the ordinary policy of
workmen's compensation. Used in this way the words "reinsure" and
"reinsurance" have a definite and distinct meaning and indicate the
nature of the policy which the self-insurer is to obtain to cover catastrophe
hazard, as in reahty a policy of indenmity but one vviiich the Legislature
has called "reinsurance."
In construing a poHcy purchased by a "self-insurer" under the New
York statute, which is similar to ours in many respects but does not itself
use the word "reinsurance", to be a pohcy of "reinsurance", though
entered into not by two insurance companies but by an individual "self-
uisurer" and a company, the court said that the policy as written was
phrased in terms accurately appUcable only to reinsurance in the strict
sense of the word as used, and further that :
"The contract between the plaintiff and the defendant is not wholly
a conventional contract of reinsurance because it is only by a fiction that
the plaintiff can be considered an insurer at all. The arrangement for
so-called self-insurance under the Workmen's Compensation Law is only
one for an approval of credit so that the employer may be suffered to
make compensation payments personally to his injured employees with-
out furnishing covering insurance either by the State fund or by an inde-
pendent company. The contract between plaintiff and defendant was
one to indemnify the plaintiff for its loss or liability (as the contract is
viewed) resultuig from accidental injuries to its employees. . . "
Republic Metalware Co. v. General Reinsurance Corp. (1935) 281
N. Y. S. 5— 103 A. L. R. 1485; 127 A. L. R. 181.
5. Your fifth question reads:
"If the catastrophe hazard contract is not a contract of workmen's
compensation insurance as referred to in G. L., c. 152, § 55, but is a con-
tract of reinsurance, is it required to be upon a form previously approved
by the Commissioner of Insurance in view of the requirements of G. L.,
c. 152, §§ 54A and 55?"
I answer this question in the negative for the reasons already set forth.
The catastrophe hazard contract is not, as I have indicated, a policy
of "workmen's compensation insurance" as the quoted words are used
in said section 55, but an agreement for indemnification which is by force
of the provisions of said subdivision (c) a contract of "reinsurance". No
provisions of the law require approval of the form of "reinsurance" poli-
cies by the Commissioner.
6. Your sixth question reads :
"The term 'catastrophe' is not defined in G. L., c. 152 (Workmen's
Compensation Law) or G. L., c. 175 (Insurance Law) and therefore your
advice and opinion are requested that we may be informed at what point
the catastrophe coverage becomes effective in the event that your answer
to either Question 4 or Question 5 is in the affirmative.
Is the catastrophe coverage excess insurance over and above the de-
posit or surety bond or bonds required to be filed by a self-insurer with
the State Treasurer or should payments under this policy be made upon
injury to one or more persons or in cases involving excessive losses?"
In view of my answers to your fourth and fifth questions, it is unneces-
sary to answer this inquiry.
88 P.D. 12.
7. Your seventh question reads:
"In view of the distinction made in subdivision (h) of subsection (2)
of section 25A where the phrase 'corporate surety company authorized
to do business in this commonwealth ' is used and in the workmen's com-
pensation law in which section 25A has been inserted by the enactment
of chapter 529; namely, sections 52, 52A, 53, 56 and 61, and in the in-
surance law, chapter 175, sections 9, 19B, 20, 24, 163 and 171, wherein
the word 'authorized' is used, we wish to be informed as to whether or
not the phrase 'an insurance company admitted to do business in this
commonwealth' is broad enough in its scope to include domestic insur-
ance companies or whether it is limited in its application to foreign in-
surance companies only."
The phrase as to which you inquire is foimd in said subdivision (c) and
relates to poHcies of reinsurance.
In view of my answers to your fourth and fifth questions, it is apparent
that this seventh question, since it deals with a reinsurance policy, does
not relate to any matter which is or may properly come before you,
requiring action upon your part, and for that reason I refrain from an-
swering it.
8. Your eighth question reads:
"G. L., c. 152, § 52, places the responsibility for the approval of work-
men's compensation insurance rates upon the Commissioner of Insurance.
We wish to be informed whether or not this section requires the Commis-
sioner to approve classifications of risks and premiums on the single pre-
mium non cancellable policy referred to in subdivision (a), subsection (2)
of section 25A and on the bond and additional bond referred to in subdi-
vision (6) of said subsection (2) and on the catastrophe hazard policy
specified in subdivision (c) of said subsection (2)."
G. L. (Ter. Ed.) c. 152, § 52, as amended, reads:
"Any insurance company authorized to transact business in this com-
monwealth under subdivision (h) or (e) of the sixth clause of section
forty-seven of chapter one hundred and seventy-five may, except as pro-
vided in clause (c) of section fifty-four of said chapter, insure the payment
of the compensation provided for b}^ this chapter, and when any such
company insures the pajinent of such compensation it shall file with
the commissioner of insurance its classifications of risks and premiums
relating thereto and subsequent proposed classifications or premiums,
which shall not take effect until approved by the commissioner of insur-
ance as adequate and reasonable for the risks to which they respectively
apply; provided, that upon petition of the company or any other party
aggrieved the opinion of the commissioner shall be subject to review by the
supreme judicial court. The commissioner may withdraw his approval."
G. L. (Ter. Ed.) c. 175, § 47, clause Sixth, subdivision (e), as amended,
referred to in said section 52, reads:
"to insure the payment of workmen's compensation benefits under chap-
ter one hundred and fifty- two."
In view of my answers to your other questions, I answer this one: (1)
that the Commissioner of Insurance is required by said section 52 to
approve classifications of risks and premiums on the single premium
noncancellable policy referred to in said subdivision (a), which is a con-
P.D. 12. 89
tract insuring the payment of compensation witliin the meaning of G. L.
(Ter. Ed.) c. 152, § 52, as amended; and (2) that the Connnissioner has
no function of approval with relation to either the bond and additional
bond referred to in subdivision (6) of subsection (2), or of the catastrophe
hazard policy specified in subdivision (c) of said subsection (2) since
neither such bonds nor such policy is a policy of "workmen's compensa-
tion insurance" within the meaning of G. L. (Ter. 1*M.) c. 152, § 55, as
amended.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Appointment to Position of Supervisor of State Police
Detectives.
Oct. 14, 1943.
Mr. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You have asked my opinion as to whether the Commis-
sioner of PubUc Safety may designate and assign permanently to the
position of Supervisor of the State Police Detective Bureau one of the
State Pohce Detective Inspectors, without the approval of the Division
of Civil Service.
I am of the opinion that the Connnissioner maj' do so.
The sole question involved in your request is whether the position of
Supervisor of the State Police Detective Bureau is one which is subject
to the Civil Service Law.
The position was not created by statute nor does any act of the Legis-
lature specifically put it under the Civil Service Law. No rule of the
Division of Civil Service has specifically classified such position as being
under the Civil Service Law.
Positions not specifically designated by the Legislature as within the
scope of the Civil Service Law may, in certain instances, be brought
within such law by the Civil Service Commission by being included within
the classifications established by Rule 4 of the Civil Service Rules.
The only classification contained in Rule 4 which might have any appU-
cation to this position is the following:
Class 13. State Detectives and Inspectors.
a. The detective force of the Department of Pubhc Safety, and all per-
sons employed on detective or fire inspection work.
b. The boiler inspectors of the Department of Public Safety.
c. All other male inspectors of the Department of Pubhc Safety.
d. All women employed as inspectors in the Department of Pubhc Safety.
In an opinion to the Commissioner of Public Safety in 1924 it was held
by the Acting Attorney General that one of the detectives in the Division
of State Police might be designated to have supervision over the detective
force without reference to the Department of Civil Service.
The basis of the ruling that the Commissioner of Pubhc Safety might
make such a designation and fix the compensation for the detective so
designated was the fact that there was "no civil service rule pertaining
to the performance of such duties" (i.e., of the detective having super-
vision over other detectives),
"or pertaining to the classification of such a person performing such
duties or rendering such service, other than as a member of the State
90 P.D. 12.
police, which regulates the designation of such a person for the perform-
ance of such duties."
The position of Supervisor of the State Police Detective Bureau, like
the similar position dealt with in the opinion of the Acting Attorney General
in 1924, is so different, by reason of its supervisory^ duties and powers, from
the positions of the other State Detectives as not to be fairly compre-
hended within the general classification of Rule 4, class 13.
Rule 4, class 13, of the Rules of the Civil Service Commission was pre-
cisely the same in 1924, when the above opinion was rendered, as it is
today. The opinion of the Acting Attorney General in 1924 called specific
attention to the fact that a position similar to that which we are now
considering was not covered by Rule 4 and consequently was not within
Civil Service. The Civil Service Commission has not to this day amended
the rule to bring such a position under the Civil Service Law. It could
at any time have amended Rule 4, with the approval of the Governor
and Council, specifically to include such a position. The fact that it has
never done so indicates that it has never intended to include such a
position within those positions which are subject to its jurisdiction.
The fact that subsequent to 1924 two incumbents of such a position
voluntarily took Civil Service promotional examinations is immaterial.
The voluntary action in submitting to Civil Service examinations does
not extend the terms of the statute or of Rule 4.
If in the public interest it appears that said position should be included
within those positions subject to the Civil Service Law and Rules, the
Civil Service Commission may at any time effect this result by an amend-
ment to the existing Civil Service Rules in accordance with the procedure
in G. L. (Ter. Ed.) c. 31, § 3.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Position of Assistant Deputy Warden at State Prison.
Oct. 14, 1943.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir : — You have asked my opinion as to whether or not the
position of Assistant Deputy Warden at the State Prison is subject to
the provisions of the Civil Service Law and Rules.
I am of the opinion that the position is not subject to such law and
rules.
I am informed by the Division of Personnel and Standardization that
this is a permanent position, created many j^ears ago and included in the
Division's classification of state officers and positions in 1927 under author-
ity of G. L. (Ter. Ed.) c. 30, §§45 to 50, and described therein as follows:
"Title of Class: Assistant Deputy, Prison and Reformatory.
Definition of Class : Duties : To assist the Deputy Warden in the super-
vision of prisoners and the enforcement of rules and regulations of a State
prison or reformatory for men; in the absence of the Deputy Warden
to be responsible for discipline in the yard and buildings; to have imme-
diate charge of an important branch of prison administration and to
perform related work as required."
No statute includes this position specially under the provisions of G. L.
(Ter. Ed.) c. 31, the Civil Service Law.
P.D. 12. 91
Civil Service Rules, Rule 4, section 1, provides that "superintendents
and deputy superintendents of penal . . . institutions not specially in-
cluded by "statute" are not within the positions made subject by such
rules to the provisions of said chapter 31.
The said Rule 4 in its appHcable portion reads:
"All persons performing duties or rendering service ... in any of the
following offices and positions and classes of positions, or performing
duties or rendering service similar to that of any such offices or positions
and classes of positions, under whatever designation, . . . are subject to
the Civil Service Law and Rules, . . .
Class 1. Superintendents, including deputies and executive officers;
except the superintendents and deputy superintendents of penal, reform-
atory, and charitable institutions not specially included by statute:"
Wardens and deputy wardens of penal institutions are plainly within
the meaning of the phrase used in Rule 4:
"or performing duties or rendering service similar to that of any such
offices or positions and classes of positions (specifically described) under
whatever designation ..."
This being so, it is clear that the provisions of Rule 4, section 1, class 1,
give to wardens and deputy wardens the same exemption from the appH-
cation of the Civil Service Law as is extended to superintendents and
deputy superintendents.
The words "deputy superintendents" as employed in said Rule 4, sec-
tion 1, class 1, are of sufficient scope so that they may properly be said
to embrace "assistant deputy superintendents" and an assistant deputy
warden, whose position is within the class established by the Division of
Personnel and Standardization under the title "Assistant Deputy, Prison
and Reformatory," and whose duties, as set forth in its classification,
are, among other things, to assist the deputy warden and to perform the
deputy warden's duties when the latter is absent.
Such an "assistant deputy", who at times may act directly as a deputy,
is clearly included within the exclusion from the application of the Civil
Service Law extended to "deputy superintendents" by the terms of said
Rule 4, section 1, class 1.
The fact that the Legislature by St. 1910, c. 454 (now embodied in its
principal part in G. L. (Ter. Ed.) c. 125, § 6), provided that:
"The warden of the state prison or the superintendent of the Massa-
chusetts reformatory or reformatory for women may designate for tem-
porary service one of the officers of the institution as assistant deputy.
He shall perform duties assigned by the warden or superintendent, and
in the absence of the deputy warden or deputy superintendent shall per-
form the duties of that officer — "
is immaterial with relation to an appointee to the position of "assistant
deputy" warden, who was not "designated" merely for temporary service
as assistant deputy, under the terms of said section 6.
The warden of the State Prison may, if he so desires, designate an
officer to perform temporary service as an assistant deputy, under said
section 6. The warden, however, is not reqiured to make such an ap-
pointment. The phraseology of said section 6 does not indicate a legis-
lative intent to limit him in all instances to a mere designation of an officer
92 P.D. 12.
to perform temporary services as an assistant deputy. The section does
not prohibit an appointment to the position of assistant deputy upon a
permanent basis.
Very truly yours,
Robert T. Bushnell, Attorney General.
Banks — Contributions to Philanthropic Organizations — G. L. (Ter. Ed.)
c. 155, § 12A.
Oct. 22, 1943.
Hon. Joseph E. Perry, Commissioner of Banks.
Dear Sir: — You have asked my opinion as to whether G. L. (Ter.
Ed.) c. 155, § 12A, empowers a savings bank, a co-operative bank or a
credit union to make contributions to charitable organizations or funds,
including certain organizations specifically mentioned by you.
I assume that your question has reference to that type of fund which
is described in said section 12A and to such of the charitable organiza-
tions or fluids mentioned specifically in your letter as may fall within
the description of "general relief fund" given in said section.
I am of the opinion that a savings bank, a co-operative bank or a credit
union, which is a corporation, may in the manner indicated in said sec-
tion 12A contribute to a general relief fund being raised by a relief com-
mittee of the type described in said section 12A, which has been approved
by the Commissioner of Public Welfare as evidenced by a writing filed in
his office.
G. L. (Ter. Ed.) c. 155, § 12A, reads:
"Every corporation may, by vote of its directors, or of its officers hav-
ing the powers of directors, contribute such sum or sums of money, as
said directors or officers may determine to be reasonable to any general
fund being raised by a relief committee or agency approved by the com-
missioner of public welfare, as evidenced bj^ a writing filed in his office,
and formed for the purpose of raising money to be used for the betterment
of social and economic conditions in any community in which such cor-
poration is doing business. Nothing in this section shall be construed
as directly or indirectly restricting or otherwise affecting, except as herein
provided, the rights and powers of any corporation with reference to
payments of the nature above specified."
Said section 12A confers a new power of contribution upon those cor-
porations, which, prior to the enactment of said section, were without
authority to contribute to the funds described in the section.
The last sentence of section 12A reads as follows
"Nothing in this, section shall be construed as directly or indirectly
restricting or otherwise affecting, except as herein provided, the rights
and powers of any corporation with reference to payments of the nature
above specified."
The words "otherwise affecting" occurring in the phrase "restricting
or otherwise affecting" are, by a well recognized principle of statutory
construction, to be given a meaning similar to that denoted by the word
"restricting". Commonwealth v. Dejardin, 126 Mass. 46, 47; Brailey v.
hihahitants of Southhorough, 6 Gush. 141, 142; First National Bank v.
United States, 206 Fed. 374, 378-379; 59 C. J. pp. 981-982, § 581. The
P.U. 12. 93
last sentence of section 12A was intended by the Legislature to enlarge
and not to diminish any powers which a corporation might possess to
make charitable contributions.
The phraseolog}- of said section 12A would make it applicable to all
corporations, were it not for the fact that it was inserted by St. 1938,
c. 164, in G. L. (Ter. Ed.) § 155, the first section of which provides in its
appHcable part as follows :
"The provisions of this chapter, unless expressly limited in their appli-
cation, shall apply to all corporations created by or organized under the
laws of the commonwealth, except in so far as they are inconsistent with
other provisions of law relative to particular corporations or classes of corpo-
rations, . . ."
However, I am of the opinion that the provisions of section 12A are
not so inconsistent with other provisions of law relative to savings banks,
co-operative banks or credit unions as to make such provisions inappli-
cable to them. It is true that other statutes (G. L. (Ter. Ed.) cc. 168,
170 and 171) regulate the disposition of the deposits and funds of such
institutions but the present statute merely permits them to make contri-
butions of the designated character. It appears to have been the intent of
the Legislature, in the exercise of its powers to regulate institutions of
this class, to place the type of contribution under consideration in the
categor\' of a necessary expense incident to the conduct of such institu-
tions. In view of the benefits which may well flow to such an institution
from the "betterment of social and economic conditions" in the community
where it is doing business, it cannot be said that the action of the Legis-
lature in authorizing such contributions is not a reasonable exercise of
its authority to regulate the conduct of business by this class of corpora-
tions.
Very trulj^ yours,
Robert T. Bushnell, Attorney General,
Insurance — Life Companies — Reinsurance — Approval hy Commissioner,
Oct. 25, 1943.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir : — You have asked my opinion upon three questions relating
to reinsurance by domestic life companies.
1. Your first question is:
"Is it necessary that the written permission of the Commissioner be
obtained whenever a domestic hfe insurance company insures a life for
the face amount of $10,000 and retains -11,000 of the insurance while ced-
ing $9,000 of the insurance to one other carrier?"
I answer this question in the affirmative.
G. L. (Ter. Ed.) c. 175, § 20, provides in its applicable portion that —
". . .no domestic life company shall reinsure its risks without the writ-
ten permission of the commissioner, but may reinsure parts of an indi-
vidual risk not to exceed hi any one company the amount retained by the
company first writing the insurance."
As originally appearing in St. 1874, c. 109, the provision from which
that of said section 20 stems read :
04 P.D. 12.
"Section 1. No life-insurance company organized . . . under the laws
of this Commonwealth shall be permitted to reinsure its risk, except by
permission of the insurance commissioner: but nothing in this act shall
be construed to prevent any such life-insurance company from reinsuring
a fractional part, not exceeding one-half of any individual risk."
This provision was amended by St. 1887, c. 214, § 72, so that it read:
"No domestic life insurance company shall reinsure its risks except by
permission of the insurance commissioner; but may reinsure not exceed-
ing one-half of any individual risk."
The provision in the same form as in said section 72 continued to be
enacted in various statutes deahng with insurance and codifying the in-
surance laws until 1926, when, by chapter 74 of that year, the earher laws
were amended so that the provision was enacted in the language now
employed in said G. L. c. 175, § 20.
Read in the light of the statute's history it is apparent that by the pro-
visions of section 20 a domestic life company is prohibited from reinsuring
its risks unless it has the written permission of the Commissioner, but it
may, without such permission, reinsure portions of an individual risk, if
the amount ceded to any one company does not exceed the amount re-
tained.
This being so, it follows that upon the facts stated in your first ques-
tion, inasmuch as the original insurer reinsures in a single company a
part of the risk greater that that which is retained, the transaction is not
one of those impliedly excepted from the requirement of approval by the
Commissioner.
2. Your second question is :
"Is it necessary that the written permission of the Commissioner be
obtained whenever a domestic life insurance company insures a risk in
the face amount of $10,000 and retains $1,000 of the insurance while
ceding $9,000 to nine different carriers, $1,000 to each?"
I answer this question in the negative.
The facts stated in this question do not indicate that a life insurance
company has reinsured with any one carrier a part of an individual risk,
exceeding in amount that part of such risk which it has itself retained.
Under the circumstances the permission of the Commissioner is not
required for such reinsurance.
3. Your third question is :
"Is it necessary that the written approval of the Commissioner be
obtained on all of the companies to whom the reinsurance is ceded when-
ever a domestic life insurance company insures a risk in the amount of
$10,000, retaining $4,000 of the insurance and ceding $6,000 of the in-
surance to six different carriers, $1,000 to each?"
I answer your third question in the negative.
Under the principles of construction applicable to said section 20 which
I have set forth, the mode of reinsurance as described by the facts stated
in your question comes within the exception stated in section 20. It
therefore follows that permission from the Commissioner is not required as
a condition precedent to reinsurance.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 95
Division of Child Guardianship — Authority — Care of Children.
Nov. 12, 1943.
Hon. AitTHUR G. RoTCH, Commissioner of J^ublir Welfare.
Dear Sir : — You have asked my opinion as to the authority of the
Division of Child Guardianship, which is organized under the provisions
of G. L. (Ter. Ed.) c. 18, § 5, to authorize necessary medical care and
surgical operations for children wlio have been placed in its custody.
I am of the opinion that it is within the authority of the said Division
to authorize such medical care and surgical operations for children who
have been committed to its custody by the courts and that it may exercise
such authority through its director, appointed under G. L. (Ter. Ed.)
c. 18, § 9.
The Division stands in loco parentis to those children who have been
duly committed to its custody, and while occupying this relation to a
child possesses the same rights and duties with respect to the child as did
the parents. One of these duties is to provide necessary medical and
surgical treatment for the child and the corollary right is to authorize
such treatment by operation or otherwise as may be reasonably necessary
for the health of the child.
Very truly yours,
Robert T. Bushnell, Attorney General.
Insurance — Group Policies — State Employees — Associations.
Nov. 12, 1943.
Mr. Edmund S. Cogswell, Acting Commissioner of Insurance.
Dear Sir : — You have asked my opinion upon two questions with
relation to the formation of associations of state employees for the purpose
of obtaining a group life insurance policy or a blanket accident and health
insurance policy.
1. Your first question is :
"Does St. 1943, c. 424, authorize the issuance of group life and group
accident and health insurance policies to associations of state employees
otherwise eligible whose members are employed, in a particular state de-
partment, division, board, commission or institution or in any combination
of the same and whose salaries are received from the State Treasurer?'
I answer your question in the affirmative.
The nature of an association of state emploj^ees which may be formed
for the purpose of obtaining a group life insurance policy is defined by the
provisions of G. L. (Ter. Ed.) c. 175, § 133, as amended by St. 1943, c. 424,
§ 2, by the addition of clause {d). It is required by such provisions that
the members of such an association of state employees must be regularly
and permanently employed by the Commonwealth; must be paid by a
common paymaster; must be eligible for membership in the retirement
association for employees of the Commonwealth; and not less than fifty
employees are to be insured and seventy-five per cent of all persons eligible
for membership in the particular association are to be insiu'ed.
The phrase in said clause {d) "insuring . . . seventy-five per cent of
all persons eligible for membership therein," does not mean seventy-five
per cent of all persons in the Commonwealth's service eligible for member
96 P.D. 12.
ship in some association of state employees, but means seventy-five per
cent of all persons eligible for membership in any particular association
of state employees which is formed for the purpose of obtaining a policy
of group life insurance.
The phraseology of the statute does not indicate a legislative intent to
authorize only a single association open to all eUgible employees of the
Commonwealth paid by the State Treasurer, and having seventy-five
per cent of all such persons insured.
The terms of said section 133, as amended, permit the formation of
associations of state employees possessing the required characteristics,
including that of a common paymaster, irrespective of the subdivisions
of the Commonwealth's service in which the several employees work.
With regard to associations of state employees to be insured by group
policies of accident and health insurance, the provisions concerning their
nature, contained in G. L. (Ter. Ed.) c. 175, § 110, as amended by St. 1943,
c. 424, § 3, are similar to those of said section 133 relative to associations
of state employees to be insured by group pohcies of life insurance, and the
same considerations which I have indicated as applicable to the latter
class of associations apply to the former, which may be formed by state
employees possessing the required characteristics, including that of a
common paymaster, irrespective of the subdivisions of the Common-
wealth's service in which the several employees work.
2. Your second question reads:
"Is it necessary that the membership in such an association include all
employees of all State departments, divisions, boards, commissions or
institutions whose salaries are received from the State Treasurer?"
I answer this question in the negative for reasons which I have already
set forth.
Very truly yours,
Robert T. Bushnell, Attorney General.
Public Employees — Hospital and Medical Services Obtainable — Pay Roll
Deductions.
Nov. 12, 1943.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir : -r You have asked my opinion as to whether public employees
who wish to take advantage of the hospital and medical services, referred
to in St. 1943, c. 424, §§ 5, 6 and 7, can do so only through an association
such as the one referred to in the second paragraph of section 138A as
inserted in G. L. (Ter. Ed.) c. 175, by c. 424, § 4.
I am of the opinion that public employees desiring to take advantage of
the hospital and medical services referred to do not have to do so through
an association, but may avail themselves of such advantages individually.
Said section 138A provides a method for deductions from public pay
rolls for payment of premiums on group life insurance policies issued under
section 133 of said chapter 175 to associations of public employees. The
make-up and character of such associations are set forth in said section
133 of chapter 175, as amended by St. 1943, c. 424 §§ 1 and 2.
Said chapter 424, section 5, provides by amendment of G. L. (Ter. Ed.)
c. 176A, through the insertion of a new section 12 therein, for pay-roll
deductions from the salar>' of any public employee of a designated class
P.D. 12. 97
to meet the amount due from such an employee as a subscriber to a non-
profit hospital service corporation. Section 6 of said chapter 424, by
amendment of G. L. (Ter. Ed.) c. 176B, through the insertion of a new
section 16A, provides for pay-roll deductions from the salary of any public
employee of a designated class to meet the amount due from such an
employee as a subscriber under a subscription certificate to a medical
service corporation. In section 7 of said chapter 424, by amendment of
G. L. (Ter. Ed.) c. 176C, through the insertion of a new section 16A
therein, provides for pay-roll deductions from the salary of any public
employee of a designated class to meet the amount due from such an
employee as a subscribing member under a contract issued to him by a
medical service corporation.
It is also provided in said sections 12 of chapter 176A, 16A of chapter
176B, and 16A of chapter 176C, with relation to each of the foregoing
authorized forms of pay-roll deductions, that the pertinent provisions of
said section 138A shall apply to such deductions.
It is plain from the phraseology^ employed in said sections 12 of chapter
176A, lt)A of chapter 176B, and 16A of chapter 176C that it was the
intent of the Legislature that the privileges involved in pay-roll deduc-
tions for the designated purposes should be open to employees individually
and without regard to their membership or non-membership in an asso-
ciation. The language of the sections speaks of "the salary of any . . .
employee," "of the amount payable by him" and of a "contract" or
"certificate" "issued to him." There is no indication in these sections
of any intent to limit its privileges to employees organized in groups, asso-
ciations or otherwise, nor can such an intent be gathered from the direc-
tion in these sections that the 'pertinent provisions of said section 138A
shall apply to the deductions to be made. Such of the provisions of
section 138A as relate to payment of deductions to an association or its
treasurer are not "pertinent" to the matter of deductions for the pur-
poses of said sections 12 of chapter 176A, 16A of chapter 176B, and 16A
of chapter 176C.
Certain of the provisions of said section 138A, such as the manner and
mode of authorizing deductions and the officers empowered to make de-
ductions, are "pertinent" and applicable to deductions made for the
purposes described in said sections 12 of chapter 176A, 16A of chapter
176B, and 16A of chapter 176C.
Very truly yours,
Robert T. Bushnell, Attorney General.
Municipalities — Support of Indigent Persons in Hospitals.
Nov. 16, 1943.
Hon. Arthur G, Rotch, Commissioner of Public Welfare.
Dear Sir: — You have informed me that certain hospitals in which
indigent persons entitled to relief under G. L. (Ter. Ed.) cc. 117 and
122, are placed, do not have a resident staff of physicians, and that the
charges made by the hospitals in such cases do not include charges for
physicians.
You further inform me that physicians who actually attend and treat
such patients present separate charges, and that heretofore towns which
have paid for the services of a physician to an indigent person in such a
hospital have not been reimbursed for their payments for such services by
98 P.D. 12.
the Commonwealth under the provisions of G. L. (Ter. Ed.) c. 122, § 18,'
as it stood prior to the amendment of said chapter by St. 1943, cc. 476
and 481.
With relation to the foregoing facts, you have asked my opinion upon
two questions. Your first question reads:
"May towns be subject to suit under section 24 of chapter 117, as
amended, if physicians, in providing care at these hospitals, send a notice
to the town that they are providing relief to a person in need of public
assistance?"
In my opinion, upon the facts set forth in your letter, towns may be
liable to pay physicians for providing care under the circumstances de-
scribed in your question.
G. L. (Ter. Ed.) c. 117, § 24, as amended by St. 1943, c. 481, in its
applicable parts, reads as follows :
"Every town shall be liable for any expense necessarily incurred under
this chapter . . . for the relief of a person in need of public assistance
therein by any person not liable by law for his support, after notice and
request made in writing to one or more of the members of the board of
public welfare thereof and until provision is made by them.
In case such rehef is furnished to a person in a hospital, the town shall
be liable for his support therein in a sum not exceeding the maximum
amount then allowable to a town under section eighteen of chapter one
hundred and twenty-two as reimbursement from the conmionwealth for
like support in a hospital."
Section 17 of said chapter 117 provides in part:
"The board of public welfare of each town shall also relieve and sup-
port ... all poor persons residing or found therein, having no lawful
settlements in the commonwealth, until their removal to the Tewksbury
state hospital. ..."
By force of the foregoing provisions of the statutes, a town is required
to pay for expenses necessarily incurred in the relief and the support of
poor persons having no settlements in the Commonwealth. Necessary
medical and surgical care furnished to such persons comes within the
scope of the relief which a town is so bound to supply and for the expense
of which it may be liable to the physician furnishing such care. Symmes
Arlington Hospital v. Tow?i of Arlington, 292 Mass. 162.
By the last sentence of said section 24, as amended, a town is liable
for the "support" of such a poor person to the hospital wherein he is
placed in an amount which is described in G. L. (Ter. Ed.) c. 122, § 18,
as amended by St. 1943, c. 476, namely, an amount "not exceeding four
dollars a day, as may be provided by rules and regulations made by the
department." However, the duty rests upon the town to provide medical
treatment necessary for such poor person's relief and when that is furnished,
not by the hospital, but by a physician not connected with the institu-
tion, the town is obHgated to pay the physician for such treatment irre-
spective of what it may be required to pay the hospital for "support" of
the patient, and, being required to make payment for such relief by way
of medical treatment, to a physician and not to the hospital, the town is
entitled to be reimbursed by the Commonwealth.
Your second question reads :
P.D. 12. 99
"If towns do pay for these services, as in the past, may the Depart-
ment now reimburse?"
I answer this question in the affirmative for the reasons already set
forth.
Very truly yours,
Robert T. Bushnell, Attorney General.
Motor Vehicles — Licenses — Revocation — Convictions — Plea of Nolo.
Nov. 30, 1943.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You inform me that the Registrar of Motor Vehicles
revoked a license to operate upon the ground that the person operating
had been arraigned before a Trial Justice on a complaint under G. L.
(Ter. Ed.) c. 90, § 24 (1) (a), as amended, charging him with operating
a motor vehicle while under the influence of intoxicating liquor, had
pleaded nolo contendere, was fined and paid $35, and that the Trial Justice
reported the conviction to the Registrar.
I assume the complaint charged in the language of section 24 (1) (a)
that the offense was committed "upon a way or in" a "place to which the
public has a right of access." I also assume from the tenor of your letter
that the Registrar revoked the license in question solely upon the ground
that the proceedings before the Trial Justice resulted in a conviction of
the said person for a violation of said section 24 (1) (a) by virtue of sec-
tion 24 (1) (d) of said chapter 90, as amended, and that the revocation
was made by the Registrar under the provisions of section 24 (1) (6) of
said chapter 90, as amended.
You advise me that such person has appealed from the decision of the
Registrar to the Department of Public Works under G. L. (Ter. Ed.)
c. 90, § 28, and has been heard. You further inform me that the appel-
lant's counsel contended at the hearing before the department that the
action of the Registrar was improper inasmuch as the appellant had not
been convicted of the off"ense with which he was charged because (I) a
plea of nolo contendere followed by the imposition and payment of a fine
did not constitute a "conviction" within the meaning of said G. L. (Ter.
Ed.) c. 90, § 24, and (2) the Trial Justice had no jurisdiction in connec-
tion with the crime for which the appellant was arraigned before him.
You ask me whether, upon the facts of which you have advised me,
there was a "conviction" of the appellant within the meaning of said
G. L. (Ter. Ed.) c. 90, § 24 (1) (6) and (d), as amended, so that the Regis-
trar was required to revoke the license to operate.
I answer your question in the negative.
G. L. (Ter. Ed.) c. 90, § 24, as amended, in its applicable parts provides:
"(1) (a) Whoever upon any way ... to which the public has a right
of access operates a motor vehicle while under the influence of intoxi-
cating liquor shall be punished by a fine of not less than thirty-five nor
more than one thousand dollars, or by imprisonment for not less than
two weeks nor more than two years, or both. . . .
"(6) A conviction of a violation of the preceding paragraph of this
section shall be reported forthwith by the court or magistrate to the reg-
istrar, who shall revoke immediately the license of the person so con-
victed, . . .
100 P.D. 12.
"(d) For the purposes of subdivision (1) of this section, a person shall
be deemed to have been convicted if he pleaded guilty or nolo contendere
. . . and a license may be revoked under paragraph (6) hereof notwith-
standing the pendency of a prosecution upon appeal or otherwise after
such a conviction."
1. By the terms of said section 24 (1) (6) and (d) a person who has
pleaded nolo contendere to a complaint for operating a motor vehicle while
under the influence of intoxicating liquor upon any way or in any place
to which the public has a right of access "shall be deemed to have been
convicted" and his "license may be revoked."
The Legislature has written into the statute by amendments of said
section 24 a declaration of the effect of a plea of nolo contendere to the form
of complaint under consideration similar to that which had been set
forth by opinions of my predecessors in ofhce prior to such amendments
in regard to the effect of such plea followed by a fine in relation to various
offenses. Opinion of the Attorney General to the Massachusetts High-
way Commission, September 3, 1908 (not published); II Op. Atty. Gen.
276; III Op. Atty. Gen. 72; Opinion of the Attorney General to the
Civil Service Commission, May 1, 1933 (Attorney General's Report,
1933, p. 56).
2. Notwithstanding the efTect of the plea of nolo contendere with impo-
sition and payment of a fine as a conviction, I am of the opinion that the
Trial Justice before whom the appellant was arraigned had no jurisdic-
tion of the offense charged in the complaint, and that his action in re-
ceiving such plea and imposing a fine was a nullity. The judgment or
final action of an inferior court in a criminal case of which it has no juris-
diction is void, cannot constitute a conviction, and may be attacked
collaterally.
The jurisdiction of a Trial Justice to hear and determine criminal com-
plaints is specifically Hmited by G. L. (Ter. Ed.) c. 219, § 18, to "crimes
which may be subject to the penalties of a fine or forfeiture of not more
than fifty dollars or of imprisonment for not more than six months or
both."
The crime with which the person in question was charged is punishable
under the provisions of said section 24 (1) (a) by a fine of not less than
thirty-five nor more than one thousand dollars, or by imprisonment for not
less than two weeks nor more than two years, or both.
It is plain that the Trial Justice had no jurisdiction to dispose of the
complaint against the said person.
"The word 'jurisdiction' is of large and comprehensive import, and
embraces every kind of judicial action upon the subject matter . . ."
Hopkins v. Commonwealth, 3 Met. 460, 462.
The fact that the minimum penalty for any offense is within the limit
to which penalties may be imposed by trial justices does not bring the
offense within their jurisdiction if the maximum penalty for such offense
exceeds that limit and they may only bind the defendant over to the
Superior Court. Commonwealth v. Woolford, 108 Mass. 483. See Com-
monwealth V. Nason, 252 Mass. 545, 548.
It is the maximum penalty that may be imposed which determines the
justice's jurisdiction. If the potential penalty takes the case beyond his
jurisdiction, the fact that the penalty actually imposed is sinaller and
within his power to impose does not give him jurisdiction. State v.
Lafayette (N. J.), 188 Atl. Rep. 918.
P.D. 12. 101
Where a court has no jurisdiction of the subject matter before it such
jurisdiction is not conferred by acquiescence or consent of an accused,
either expressed or impHed. Commonwealth v. Mahar, 16 Pick. 120;
Indiana v. Tolleston Club of Chicago, 53 Fed. 18.
There is no presumption that the judgment of an inferior court of
hmited jurisdiction, such as that of a trial justice, is within its jurisdic-
tion, and as the facts now presented show affirmatively that the subject
matter of the appellant's case was not within the jurisdiction of the Trial
Justice before whom proceedings were had, the disposition of the same
by such Justice should not now, in connection with the revocation of the
appellant's license, be treated as a conviction under G. L. (Ter. Ed.)
c. 90, § 24 (1), as amended.
Very truly yours,
Robert T. Bushnell, Attorney General.
Approving Board for Colleges — Applications — Institutions Outside the
Commonwealth.
Nov. 30, 1943.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam : — On behalf of the Board of Registration in Medicine
you have asked my opinion upon the following question:
"Under G. L. c. 112, § 2, as amended by St. 1939, c. 451, § 37, par. 3,
can any college outside the Commonwealth file a written request for
approval and must the Approving Authority thereupon grant a public
hearing and if the college is refused approval can that college then file
a petition in the Superior Court for Suffok County to revise or reverse
the decision of the Approving Authority?"
I answer your question in the affirmative.
G. L. (Ter. Ed.) c. 112, § 2, as amended, which deals with the examina-
tion and registration of physicians, provides in its applicable parts as
follows :
"Applications for registration as quahfied physicians, . . . shall be
made upon blanks furnished by the board of registration in medicine, . . .
Each applicant who shall furnish the board with satisfactory proof that
he . . . has completed two years of pre-medical collegiate work, ... in
a college or university approved by a body consisting of the secretary of
the board, the commissioner of education and the commissioner of public
health, . . . shall ... if found quaUfied by the board, be registered as a
qualified physician . . .
The approving authority shall, upon the request of any college, univer-
sit}^ or medical school in this commonwealth, inspect said college, uni-
versity or medical school and notify its trustees or other governing body
in writing if said college, university or medical school is approved by the
approving authority for the purposes of this section, or if not, what steps
said college, university or medical school must take in order to gain the
approval of the approving authority.
Any college, university or medical school desiring to be approved for
the purposes of this section may file with the approving authority a writ-
ten request for the approval of such college, university or medical school,
and thereupon a public hearing shall be seasonably granted by the approv-
ing authority and a written decision made by it within twenty days after
102 P.D. 12.
the termination of such hearing and the applicant for such approval shall
be notified of such decision. A written decision of the approving authority
refusing to approve any college, university or medical school shall not
become effective until thirty days after written notice of such decision
is given to the college, university or medical school seeking such approval.
Every such college, university or medical school aggrieved by such refusal
shall have the right to file a petition in the superior court for Suffolk
county to revise or reverse the decision of the approving authority.
Notice of the entry of such petition shall be given to the secretary of the
board of registration in medicine and all proceedings connected there-
with shall be according to rules regulating the trial of civil causes without
juries. The court shall hear the case and finally determine whether or
not such approval shall be granted or revised.
Upon the filing of such a petition within the aforesaid period of thirty
days, then the said decision of the approving authority shall not become
effective until a final decree affirming said decision is entered upon the
aforesaid petition. ..."
It is plain that it was not the intent of the Legislature to limit the
colleges and universities giving pre-medical instruction which might be
approved by the particular Board created by said section 2 to those which
were situated within the Commonwealth.
By the terms of the second paragraph in section 2, above quoted, the
Legislature has provided that colleges and universities situated within
the Commonwealth which are not approved by said Board may require
the Board to perform certain specified acts, including inspection, to aid
them in taking such steps as may be necessary to gain the Board's ap-
proval. The right to make such requirements is not given to colleges
and universities situated outside Massachusetts, but is specifically lim-
ited to those within the Commonwealth.
However, by the terms of the first sentence of the third paragraph of
said section 2, above quoted, the Legislature has granted to any college
or university, without specific limitation to those within the Common-
wealth, the right to apply to the said Board for approval, the right to a
public hearing, and the right of recourse to the Superior Court for Suffolk
County for revision or reversal of the Board's decision upon such an appli-
cation. From the context of the first three paragraphs of said section 2,
quoted above, read as a whole, no limitation of the grants of such rights
to colleges and universities within Massachusetts alone may properly be
said to arise by implication.
Very truly yours,
Robert T. Bushnell, Attorney General.
Teachers' Retirement Fund — Municipalities — Payments on Account of
Those on Military Leave of Absence.
Nov. 30, 1943.
Hon. Henry F. Long, Commissioner of Corporations and Taxation.
Dear Sir : — You have asked my opinion —
"as to the interpretation of section 9A of chapter 708 of the Acts of 1941,
as inserted by St. 1943, c. 419, as follows:
"Is the Commonwealth or are the cities and towns required to raise
and to pay into the Teachers' Retirement Fund 'not less than one half the
P.D. 12. 103
amount which would have been paid by members on mihtary leave of
absence' on account of teachers formerly employed by cities and towns
who are now on such military leave?"
I am of the opinion that cities and towns and not the Connnonwealth
are required to raise and to pay into the Teachers' Rotiroment Fund the
amount described in said section 9 A on account of teachers now on mih-
tary leave who were formerly cmploved bv the respective cities and towns.
St. 1941, c. 708, § 9A, inserted by St. 1943, c. 419, reads:
"In order to provide funds to carry out the provisions of section nine,
there shall be appropriated biennially, in the cas(; of the commonwealth
and the several counties, except Suffolk and Nantucket, and annually, in
the case of cities, towns and districts, sums equal to not k^ss than one
half the amount which would have b(>en paid by members on military
leave of absence referred to in said section nine had they remained in the
service of the commonwealth or of a political subdivision thereof during
the preceding budgetary period. Sums so appropriated by the common-
wealth and the several political subdivisions tliereof shall ho paid into
their respective retirement systems and shall be invested and reinvested
by the retirement boards as a special fund to be used only for carrying
out the purposes of said section nine. To cover accrued liability on
account of said section nine for the period from January first, nineteen
hundred and forty-one, to the effective date of this act, sufficient sums
shall be appropriated, as soon as may be, in the case of the common-
wealth and the several political subdivisions thereof, to the special funds
hereinbefore provided for."
Section 9 of said chapter 708 provides that any person who is deemed
to have been absent from his office or position in the service of the Com-
monwealth or any political subdivision, by reason of resignation to enter
the military or naval forces of the United States after January 1, 1940, —
"shall, when reinstated or re-employed in his former position or in a
similar position as provided by this act, have credited to him as creditable
service under any contributory retirement S3^stem or under any other
pension or retirement law under which he has actual or inchoate rights,
the period of his said military or naval service. If such person remained
a member of any contributory retirement system and has not withdrawn
therefrom his accumulated deductions, or, if such person has withdrawn
such deductions and shall redeposit the same or make arrangements for
so doing by installments, as provided by law, the commonwealth or politi-
cal subdivision thereof, as the case may be, shall, at the time of such re-
instatement or re-employment, or as soon thereafter as an appropriation
therefor is made, pay into the annuity savings fund of such retirement
system the amount which said person would have paid into said fund had
his employment in the service of the commonwealth or political subdivi-
sion thereof not been interrupted by his said mihtary or naval service;
provided, that any sum so paid by the commonwealth or any political
subdivision thereof shall be used only to provide an increased retirement
allowance of the person on whose account such payment is made, and in
case of his later separation from the service otherwise than by retirement
the said sum, together with interest thereon, shall be used to reduce the
next ensuing appropriation for the payment of pensions."
Reading said sections 9 and 9A together so as to form an harmonious
whole, it appears to have been the intent of the Legislature, as expressed
104 P.D. 12.
by their phraseology, that the payments on behalf of members on mili-
tary leave of absence to the funds of various contributory retirement sys-
tems therein provided for, should be made by the Commonwealth with
respect to such members as were in its service, and by the different politi-
cal subdivisions with respect to those members who were employed in
their respective services.
Very truly yours,
Robert T. Bushnell, Attorney General.
Retirement System — Employee — War Time Re-employment After
Age Seventy.
Dec. 6, 1943.
Hon. Frederic W. Cook, Secretary of the Commonwealth.
Dear Sir : — You have informed me of the following facts :
"A Mr. Fenelon has been employed in the Election Division of this
department at various times as a temporary clerk, during the past three
or four years. He was re-employed as a provisional temporary junior
clerk on September 16, 1942, authority to make the appointment being
given by the Civil Service Commissioner on September 16, 1942, and
approved by the Director of Personnel and Standardization on the same
day."
You have asked my opinion "as to whether or not . . . the present
employment of Mr. Fenelon is legal under the provisions of St. 1943, c. 502."
Upon the facts which you have given me I am of the opinion that
Mr. Fenelon's present employment by your department is legal.
I am also informed that he was not a member of the State Retirement
System, and it is plain that he was over the age of fifty-five when he
re-entered the service on September 16, 1942.
By force of the provisions of G. L. (Ter. Ed.) c. 32, § 2 (14), (15), (16),
and § 4 (6), the retirement of the employee at age seventy was required
and his re-employment after he attained that age would not have been
valid. However, in 1942 the Legislature enacted chapter 16 of that year,
entitled "An Act to provide for the temporary re-employment of former
officers and employees of the commonwealth or of any political sub-
division thereof during the continuance of the existing state of war . . ."
This was an emergency measure, the intent of which as indicated by its
title was to make available during wartime the services of former public
officers and employees. It provided in its applicable part :
"Any former officer or employee of the commonwealth . . . who has
been retired under any retirement or pension law, or who has been separated
from the public service by reason of superannuation or disabihty without
receiving a retirement allowance or pension, may be employed in the service
of any department, board or commission of the commonwealth . . ."
Chapter 16 was amended by St. 1943, c. 502, but the above-quoted pro-
visions were re-enacted.
This statute was intended to relieve and remedy the difficulties caused
by loss of man power in the public service due to the war, and its provi-
sions should not be construed narrowly. The word "employee" as used
in this statute is not limited by definition to certain classes of persons
within the public service, as is its meaning when employed in G. L. (Ter.
Ed.) c. 32, as amended, by force of specific statutory definition of the
P.D. 12. 105
word in section 1 of said chapter 32, applicable only to the word as appear-
ing in chapter 32. As used in the statute under consideration the word
"employee" is to be given its ordinary meaning, which is broad enough
to include a temporary as well as a permanent employee in the public
service.
By force of the indicated provisions of said chapter 32, Mr. Fenelon
became separated from the service upon attaining the age of seventy but
under the terms of said St. 1942, c. 16, as amended, his re-employment
was authorized. It follows that the last appointment of Mr. Fenelon on
November 15, 1943, as a provisional temporary junior clerk, although he
was over seventy, was validly made by force of said chapter 16, as amended.
Very truly yours,
Robert T. Bushnell, Attorney General.
Retirement System — Permanent Incapacity for Performance of Employee's
Work — Right to Be Retired.
Dec. 13, 1943.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir: — You have asked my opinion as to the authority of the
State Board of Retirement "to retire a person who is mentally or physically
incapacitated for the particular work which he was performing at the
time of the injury, although he may not be so incapacitated, physically
or mentally, as to be unable to do other work for the department and/or
the Commonwealth."
I am of the opinion that if a member of the State Retirement System
has received such accidental disability as to be "mentally or physically
incapacitated for further service" in the position which he holds and
"the incapacity is likely to be permanent," he may be retired under the
provisions of G. L. (Ter. Ed.) c. 32, § 4D, irrespective of whether he may
be capable of performing other work for a department or for the Common-
wealth.
G. L. (Ter. Ed.) c. 32, § 4D, as amended, provides in its applicable
parts :
". . . a member . . . shall be retired for accidental disability, if, upon
the certification of one or more physicians, designated by the board, that
such member is mentally or physically incapacitated for further service
and that the incapacity is likely to be permanent, the board finds . . .
that (3) he should be retired."
The word "service," as used in said section 4D in the phrase "for
further service," plainly means service in the position filled by the member
at the time of his accident. The words do not indicate a legislative intent
that retirement for accidental disability of a permanent nature may be
given only when the member's injuries are so extensive as to render him
not only unable to render service in the position which he held when
injured but also unable to do work of any kind in any other position in
the Commonwealth's service.
The statutes for retirement were made for the benefit and protection of
employees. The Legislature has made no provision for transfer of an
employee, suffering such accidental disability as is described in said section
4D, to a different position from the one which he held at the time of his
accident, nor for his relief if no such different position which he might
106 P.D. 12.
be capable of filling be available, as it has done by G. L. (Ter. Ed.) c. 152,
§ 73 A, inserted by St. 1941, c. 649, with relation to certain public em-
ployees entitled by reason of partial disability to receive workmen's
compensation. Had the Legislature intended that the word "service,"
as used in said section 4D, should mean the performance of duty in another
position than that held by an accidentally disabled employee at the time
of his accident, it would have made similar suitable provisions with relation
to transfers.
Very truly yours, ,
Robert T. Bushnell, Attorney General.
Workmen's Compensation — Persons Employed by Those Subject to the
Federal Communications Act and to Part I or Part II of the Inter-
state Commerce Act — Legislative Intent.
Dec. 13, 1943.
Mrs. Emma S. Tousant, Chairman, Department of Industrial Accidents.
Dear Madam: — The Industrial Accident Board has through you re-
quested my opinion relative to the effect of the amendment of G. L.
(Ter. Ed.) c. 152, § 1 (4) by St. 1943, c. 529, § 3, upon four questions.
You have directed my attention to the new definition of "employee"
inserted in said chapter 152, section 1 (4) by such amendment and par-
ticularly to the following words used in such definition: "excepting . . .
persons employed by an express company, sleeping car company, or car-
rier subject to Part I or Part II of the Interstate Commerce Act, and
persons employed by telephone companies subject to the federal commu-
nications act ..."
1. Your first question reads :
"Do the quoted provisions wholly exclude the persons and employers
referred to from all of the provisions of said chapter 529, and G. L. (Ter.
Ed.) chapter 152, which it substantially amends, so as to amount to a
cession or grant by the Commonwealth to the Federal Government, of
its authority to legislate regarding compensation and rights of action
for injuries to such persons while performing work in intrastate employ-
ment?"
I answer your first question in the affirmative.
G. L. (Ter. Ed.) c. 152, the Workmen's Compensation Act, as last
amended prior to 1943, contained in section 1 (4) a definition of the word
"employee" as used in said chapter. The effect of a definition as applied
to the word "employee" when appearing in the text of the chapter is
to indicate what class or classes of employees are subject to the provisions
of the Workmen's Compensation Act. The definition as it appeared in
said section 1 (4) before the said amendment was as follows :
"'Employee', every person in the service of another under any con-
tract of hire, express or implied, oral or written, excepting masters of and
seamen on vessels engaged in interstate or foreign commerce, and except-
ing one whose employment is not in the usual course of the trade, busi-
ness, profession or occupation of his employer, but not excepting a person
conclusively presumed to be an employee under section twenty-six of this
chapter. Any reference to an employee who has been injured shall, when
the employee is dead, also include his legal representatives, dependents
and other persons to whom compensation may be payable."
P.D. 12. 107
In construing the foregoing definition the Supreme Judicial Court in
Armhurg v. Boston ct Maine Railroad, 276 Mass. 418, 422, held that the
Legislature intended to include all employees and particularly those of
railroads, even when the employees were engaged in interstate commerce,
in so far as the employees at the time of injury were engaged in intrastate
commerce. The court indicated that if it had been the intent of the
Legislature to exclude entirely from the benefits of the act those whose
employees were engaged in interstate commerce, it would have been a
simple matter for the Legislature to state that intent. The court assumed
that in so far as the employee's injury was received while he was engaged
in an activity of interstate commerce, the applicable Federal Compensa-
tion Act only would have applied and have taken precedence over any
similar state statute. The court pointed out that diflSculties would arise
in determining whether a particular injury arose out of intrastate or inter-
state commerce, but that such diflficulties did not amount to an insur-
mountable obstacle in the way of construing the scope of the Massa-
chusetts Workmen's Compensation Act and that as so interpreted said
chapter 152 did not place a burden upon interstate commerce and was
not unconstitutional.
In Saunders v. Boston & Maine Railroad, 287 Mass. 56 (1934), the
court considered the case of an employee who at the time of injury was
loading an intrastate shipment upon an interstate train, and held that the
employee's work was so closely related to interstate transportation "as
to be practically a part of it" and hence the employee was within the
scope of the appHcable federal statute and accordingly his rights were
not governed by the Workmen's Compensation Act of this Common-
wealth.
Said section 1 (4) as now amended by St. 1943, c. 529, in its appHcable
part reads:
"'Employee', every person in the service of another under any contract
of hire, express or implied, oral or written, excepting masters of and sea-
men on vessels engaged in interstate or foreign commerce, persons em-
ployed by an express company, sleeping car company, or carrier subject
to Part I or Part II of the Interstate Commerce Act, and persons em-
ployed by telephone companies subject to the federal communications act
and excepting one whose employment is not in the usual course of the
trade, business, profession or occupation of his employer, but not except-
ing a person conclusively presumed to be an employee under section
twenty-six of this chapter. The provisions of this chapter shall remain
elective as to employers of the following: — persons employing six or less,
or persons employed as domestic servants and farm laborers, members of
an employer's family dwelling in his household, and persons other than
laborers, workmen and mechanics employed by religious, charitable or
educational institutions.
Any reference to an employee who has been injured shall, when the
employee is dead, also include his legal representatives, dependents and
other persons to whom compensation may be payable."
In view of these judicial determinations it is apparent that in amend-
ing the said definition the Legislature intended to do away with the dis-
tinction which was so difficult to draw between injuries sustained by
employees of interstate carriers while such employees were engaged in
activities of intrastate commerce and those sustained while engaged in
108 P.D. 12.
activities of interstate companies. This intent is expressed in that part
of the phraseology of the definition of "employee" to which you refer,
which specifically excepts from the general definition of "employee" those
persons who are "employed by an express company, sleeping car com-
pany, or carrier subject to Part I or Part II of the Interstate Commerce
Act, and persons employed by telephone companies subject to the federal
communications act."
By force of this definition all those employees described in such excep-
tion, and their employers by implication, are excluded from the benefits
and burdens of the Massachusetts Workmen's Compensation Act, irre-
spective of whether their particular work is an activity of intrastate or
interstate commerce. Such employees are of course entitled to the bene-
fits of whatever federal acts may be applicable to them, respectively.
2. Your second question reads:
"If your answer to the foregoing question is in the negative, may it
be assumed that the quoted provisions are merely declarative or cog-
nizant of existing federal jurisdiction relating to the persons, carriers and
telephone companies referred to under the federal acts mentioned?"
Since my answer to your first question is not in the negative no answer
to this question is required.
3. Your third question reads:
"Are 'persons', referred to in the quoted provisions, who are in the
general employ of the carriers and telephone companies specified, to be
deemed 'employees subject to this chapter' within the meaning of that
phrase as used in section lA of said chapter 529, while they are performing
work, wholly intrastate in nature and not within the purview of the
federal acts specified?"
I answer this question in the negative.
The phrase "employees subject to this chapter" as used in G. L. (Ter.
Ed.) c. 152, § 1 (5), as amended by St. 1943, c. 529, § lA, to which you
refer in your letter, occurs in the definition of "employer" inserted in
said section 1 (5) by said section lA, and reads:
" 'Employer', an individual, partnership, association, corporation or
other legal entity, including the legal representatives of a deceased em-
ployer, or the receiver or trustee of an individual, partnership, association,
or corporation or other legal entity, employing employees subject to this
chapter."
As I have indicated in my answer to your first question, the intent of
the Legislature in enacting the amended section 1 (4) of chapter 152 was
by definition of the word "employee" to exclude from the meaning to be
given to that word as used in chapter 152 the employees of express com-
panies, sleeping car companies, or carriers subject to Part I or Part II
of the Interstate Commerce Act, and persons employed by telephone
companies subject to the Federal Communications Act, without regard
to whether the employee was engaged in an activity or activities in intra-
state commerce. The phraseology employed by the Legislature embraces
within the exception all employees of the designated employers irrespec-
tive not only of whether they received injuries while engaged in intra-
state commerce but irrespective of whether the work which they performed
in their respective employments was in intrastate or in interstate com-
merce, and irrespective of whether such work was itself within the purview
of federal acts.
P.D. 12. 109
4. Your fourth question reads:
"If your answer to the foregoing question is in the affirmative, may-
it be assumed that the employers of such employees are ('om[)elled to
provide for payment of compensation under section 7 of said chapter 529,
subject to penalty under said section, subject to loss of defenses under
sections 9A and 10 of said chapter, and required to report accidents in
accordance with G. L. (Ter. Ed.) c. 152, § 19, as amended?"
Since my answer to your third question was not in the affirmative no
answer to your fourth question is required.
Very truly yours,
Robert T. Bushnell, Attorney General.
Teachers' Retirement System — Rights of Members Leaving Positions
to Enter Military Service — Resignations — Refunds.
Dec. 13, 1943.
Hon. Julius E. Warren, Commissioner of Education.
Dear Sir: — You have asked my ophiion upon three questions with
relation to the Teachers' Retirement System, as to the effect of the amend-
ment of St. 1941, c. 708, by St. 1943, c. 548, upon the rights of members
leaving their positions to enter the military forces of the United States.
1. Your first question is:
" Does the amendment permit a member to receive a refund if he entered
mihtary service after June 12, 1943, and prior to entering miUtary service,
submitting a resignation in writing advancing some reason for resignation
other than that of entering the militarv or naval service of the United
States?"
I answer j-^our question in the affirmative.
The statute regarding the Teachers' Retirement System, G. L. (Ter.
Ed.) c. 32, §§ 6-20, as amended, provides in section 11:
" (1) Any member withdrawing from the public school service before
becoming ehgible to retirement, . . . shall be entitled to receive from the
annuity fund ... all amounts contributed as assessments, together with
regular interest thereon, either in one sum or, at the election of the board,
in four quarterly payments. ..."
On October 29, 1941, the Legislature enacted chapter 708 of that year
as an emergency act, the purpose of which was expressed in its title as
follows :
"An Act to meet certain contingencies arising in connection with the
service of public officers and employees and certain other persons in the
miUtary or naval forces of the United States during the present national
emergency."
Section 1 of chapter 708 reads:
"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 serve or was
or shall be rejected for such service, shall, except as hereinafter provided,
110 - P.D. 12.
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 com-
monwealth, or any political subdivision thereof,, or to have terminated
such service, until the expiration of one year from the termination of said
military or naval service by hiin."
Section 8 of chapter 708 reads :
"No person referred to in section one who has been or shall be separated
from his office or position while a member of a contributory retirement
system shall, by reason of such separation, be considered to have terminated
his membership in such system until the expiration of one year after the
termination of his said military or naval service, nor shall such a person
while so separated from his office or position be entitled to withdraw
from such sj^stem his accumulated deductions until after the expiration
of one year after the termination of his said military or naval service."
By force of the provisions of section 1 anyone terminating his employ-
ment, by resignation or otherwise, with the Commonwealth or any political
subdivision to enter the military forces of the United States was con-
clusively deemed to be on a leave of absence and not to have terminated
his service with the Commonwealth, or a political subdivision, until one
year after the end of his military service. The section contained a proviso
that the foregoing was to be effective "except as hereinafter provided"
but no provisions contrary to those referred to were set forth.
The effect of these two sections of chapter 708 was to prevent the
termination of the membership of any member of the Teachers' Retire-
ment System who left it to serve in the military forces and did serve, or
was rejected, until one year after the end of such military service.
Furthermore, the effect of these two sections was to prohibit any such
member while absent on the military leave of absence described in sec-
tion 1 from withdrawing his accumulated deductions from the retirement
system.
The amendment of said chapter 708 by chapter 548 of the Acts of
1943, an emergency measure, which became effective on October 29, 1943,
wrought a change in the foregoing situation with relation to those mem-
bers of the system who entered the military or naval service of the United
States and filed resignations from their positions with the Commonwealth
or a political subdivision.
The first section of chapter 548 amended said chapter 708 by striking
out section 1 of the latter statute and inserting in its place a new section 1.
The first paragraph of the new section 1 is in precisely the same terms as
the former section 1 and contains the same hmitation "except as herein-
after provided," but a second paragraph has been added which, with
relation to persons entering military service and also resigning their
positions, reads:
"When a person holding an office or position in the service of the com-
monwealth, or any political subdivision thereof, enters the military or
naval service of the United States and files a resignation in writing stating
his reason for such resignation, the resignation shall be considered a final
determination of the reason for leaving the service of the commonwealth,
or a poUtical subdivision thereof. ..."
It is plain that the terms of the foregoing sentence modify the sweep
of the provisions of the first paragraph of said section 1 to the extent
P.D. 12. Ill
that one who files a resignation from the service of the Commonwealth
or a political subdivision, stating therein a reason for the same other
than a purpose to enter the military or naval forces of the United States,
is not to be deemed to be on leave of absence from the service of the
Commonwealth or a political subdivision.
Chapter 548 of St. 1943, in amending chapter 708 of St. 1941, did not
repeal or amend section 8 of the latter statute. Section 8 is still in force
and still provides that: "No persan referred to in section one" who is sep-
arated from his office or position shall be considered to have terminated
his membership in a contributory retirement system nor be entitled to
withdraw his accumulated deductions from such a system.
Since the said amendment of chapter 708, section 1, said section now
refers not only to persons who are deemed to be on military leave of
absence and not to have resigned or otherwise terminated their services
with the Commonwealth or a political subdivision but also to persons
who have resigned in such a manner as to terminate their services.
The words "no person referred to in section one" as appearing in said
section 8 were employed by the Legislature when the section was framed
in 1941, with reference only to those persons described in section 1 as it
then stood. Since the Legislature has not amended section 8, the meaning
of these words has not been altered and, as read in connection with the
present section 1, they are to be construed as referring only to persons
referred to in the first paragraph of the amended section 1 which is the
same in its tenor as the whole of the original section 1 contained in
chapter 708.
So construed, the legislative intent as expressed in the insertion of the
new matter now in the second paragraph of section 1 can be given effect.
Accordingly, employees who resign positions in the service of the Com-
monwealth or a political subdivision, assigning in writing a reason for
such resignation other than a purpose to enter the forces of the United
States, are not to be held to be within the scope of said section 8 and may
withdraw accumulated deductions from a contributory retirement system,
upon separating themselves from such service, under said chapter 32,
section 11.
2. Your second question reads :
" Under the amendment, is it also now possible for a person at any time
after he has entered military service to resign his position, giving in writ-
ing some reason other than military service, and thereby be entitled to a
refund and, if so, would this apply only to persons who have entered mili-
tary service since June 12, 1943, or would it also apply to persons who
entered miUtary service prior to that date?"
The phraseology employed by the Legislature in St. 1941, c. 708, § 1,
as amended by St. 1943, c. 548, § 1, does not indicate a legislative intent
to limit the effect given to the resignations from service described therein
to such only as are made before or at the time of entering the forces of
the United States.
The provisions of said section 1 are applicable to persons who make
resignations in writing after its effective date, June 12, 1943, irrespective
of whether or not they entered the military service before such date.
Such a construction does not give the statute a retroactive effect.
3. Your third question reads:
" Does the amendment also permit a person who has been discharged
from mihtary service to submit a resignation and receive a refund prior
112 P.D. 12.
to one year from the termination of his mihtary service, and, if so, would
this apply only to persons who have entered mihtary service since June
12, 1943, or would it also apply to persons who entered military service
prior to that date?"
I am of the opinion that a person may make such a resignation as you
describe and receive a refund prior to one year from the termination of
his mihtary service whether he entered such service before or after June
12, 1943.
The same considerations which apparently led the Legislature to afford
an opportunity for persons going into the military and naval forces of
the United States to end completely their employment by the Common-
wealth or a political subdivision, and as a consequence of so doing to
obtain a refund of accumulated deductions from their salaries in con-
tributory retirement systems, apply with equal force during the whole
period of their absence from their former duties.
Very truly yours,
Robert T. Bushnell, Attorney General.
Workmen^s Compensation — Self-Insurance — Policy — Reinsurance —
"Stop Loss^' Contract.
Dec. 15, 1943.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir : — You have laid before me a copy of a policy, entitled
"Reinsurance Contract for Self-Insurers of Workmen's Compensation,"
which a foreign insurance company licensed to transact business in this
Commonwealth has submitted to you.
With relation to this policy you have asked my opinion upon several
questions of law.
1. Your first question is:
"In view of the coverage afforded by this type of contract, in that the
employer is held harmless for normal losses whenever the loss ratio exceeds
75% of the normal premium or the losses paid by the employer as a self-
insurer exceed $7,500 during the policy term, is this contract a policy of
Workmen's Compensation Insurance such as is referred to in G. L., c. 152,
as amended?"
I answer your question in the negative.
This policy, although called a policy of "reinsurance", is not made
between insurers, as is usually the case in reinsurance, but between an
individual employer and an insurance company. By its terms it does not
purport to insure the employer against liability to his employees but,
as it is written, is a contract of indemnity. The provisions of the policy
read as a whole constitute an agreement on the part of the insuring com-
pany to reimburse or indemnify the employer, who is stated therein to be
a self-insurer under the provisions of the Workmen's Compensation Law,
for disbursements which he may make by reason of injuries sustained by
his employees over and above a certain percentage of loss ratio or of a
certain amount, and for certain pajonents which he may make under the
requirements of law apphcable to self-insurers.
This contract is not a policy of insurance in the same sense as is the
contract issued under G. L. (Ter. Ed.) c. 152, § 52, insuring the payment
of worlonen's compensation, or as is the policy securing an employer
P.D. 12. 113
against loss arising under said chapter 152 with relation to "Compulsory
Compensation and Self-Insurance" provided for by section 25A, inserted
in said chapter 152 by St. 1943, c. 529, § 7.
2. Your second question reads:
"May a contract which purports to indemnify an employer who has
qualified as a self-insurer against losses over and above a certain specified
previously determined premium be legally issued in this Commonwealth
if it does not also insure the payment of all of the compensation benefits
provided for by chapter 152?"
I answer this question in the negative.
G. L. (Ter. Ed.) c. 152, § 54A, reads:
"Every contract or agreement the purpose of which is to insure an
employer in whole or in part against liability on account of injur}- or death
of an employee, other than a domestic servant or a farm laborer, shall be
void unless it also insures the payment of the compensation provided for
by this chapter. Nothing in this section shall affect any such contract or
agreement made with an employer of less than six persons. The second
paragraph of section fifty-five shall not apply in case of a contract or
agreement made void by this section."
G. L. (Ter. Ed.) c. 152, § 25A, (2) (c), reads:
"As a further guarantee of a self-insurer's ability to pay the benefits
provided for by this chapter to injured employees, the department may
require that a self-insurer reinsure his compensation risk against catastro-
phe, and such reinsurance, when so required, shall be placed only with an
insurance company admitted to do business in this commonwealth."
In an opinion given to you under date of October 13, 1943, I stated
that in my opinion the policy which the self-insurer might be required to
furnish under said subsection (c) was an agreement of "reinsurance"
having the characteristics of an indemnity contract whose benefits inured
directly to the employer and not directly to his employees. This par-
ticular form of contract, provided for by the Legislature in said subsection
(c) to cover catastrophe hazard only, is not required to insure the payment
of all or any of the compensation benefits. It is by necessary imphcation,
from the limited extent of required coverage, removed from the force
of the provisions of said section 54A. This particular form of contract,
specifically provided for by statute as one of "reinsurance" or indemnity,
is the only contract of insurance relating to workmen's compensation
which is authorized by said chapter 152 to be written without insuring
the payment of the compensation benefits provided for by the chapter.
With relation to "self-insurance" the Legislature by the enactment of
St. 1943, c. 529, § 7, inserting sections 25A to 25D in G. L. (Ter. Ed.)
c. 152, has indicated an intention to deal comprehensively and completely
with the subject of "self-insurance." It has authorized the issuance of
two forms of insurance policies for use by the self-insurer under certain
designated circumstances, namely, by section 25A (2) (a), "a single
premium non-cancellable policy, . . . securing him against any liability
that may have arisen under this chapter," and by section 25 A (2) (c),
a policy of reinsurance in the nature of a contract of indemnification which
shall "reinsure his compensation risk against catastrophe." No other form
or kind of policy is authorized to be issued for self-insurers.
114 P.D. 12.
The policy under consideration is neither the single premium non-
cancellable policy securing the employer against Uability which may have
arisen, nor is it the pohcy of reinsurance insuring the employer's compensa-
tion risk against catastrophe, provided for by said section 25A. It is
another kind of policy, protecting the employer against other hazards
in other ways, and neither expressly nor by imphcation is it authorized.
3. Your third question reads:
"The attached document is described as 'Reinsurance Contract for
Self-Insurers of Workmen's Compensation ' and therein the employer
is referred to as the 'Reinsured'. In view of the provisions of G. L.,
c. 152, § 54A, and of G. L., c. 175, § 112, please advise us as to whether
or not this document is a contract of reinsurance or a policy which is void
under said section 54 A."
In my opinion the contract or policy referred to in your question is
void since its issuance is not authorized by said chapter 152 as I have
indicated.
The manner in which the policy is written, whereby it agrees to indemnify
the employer only against losses over and above a certain specified sum
or an amount based upon a specified previously determined premium, is
an endeavor to circumvent the provisions of said section 54A by furnishing
the employer with what is commonly known as an "aggregate stop loss"
contract or one which does not insure the payment of the compensation
for which he may be liable and which is provided for by said chapter 152,
as required by said section 54A, but agrees to reimburse him for the pay-
ment of only a portion of such compensation.
Such a contract falls within the condemnation of the policy considered
by the Supreme Judicial Court in Alecks^ s Case, 301 Mass. 404, 406, 407,
for reasons similar to those applicable to the policy dealt with in that
case, and would probably be held to be void by force of said section 54A.
Irrespective of such aspect of this policy, its issuance to self-insurers
is unauthorized and consequently unlawful, for reasons which I have set
forth in my answers to your first two questions.
4. In view of my answers to your first three questions, there is no occa-
sion for my answering your fourth and fifth questions with regard to the
legality of certain particular minor provisions of the policy which you have
laid before me.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Examiners of Electricians — Members Ex Officio — Designation of
Substitutes during a Meynber's Absence.
Dec. 17, 1943.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: — On behalf of the Board of State Examiners of Elec-
tricians you have asked my opinion upon two questions with relation to
those members of said Board — the Director of Civil Service, the State
Fire Marshal and the Commissioner of Education — who serve by virtue
of holding another office.
1. Your first question is as follows:
"If an ex officio member designates a member of his own department
as his representative on the State Examiners of Electricians for an unde-
termined period and the ex ofiicio member himself from time to time
P.D. 12. 115
attends meetings and performs his duties, is it necessary that he file a
new written designation for each meeting at which he desires to be repre-
sented by some other person?"
I answer this question in the negative.
By the provisions of G. L. (Ter. Ed.) c. 13, § 82, as amended, the Board
of State Examiners of Electricians is constituted as follows :
"The state examiners of electricians, hereinafter called the board, shall
consist of the director of civil service, the state fire marshal and the com-
missioner of education, ex officiis, and two persons to be appointed for
terms of three years each by the governor, with the advice and consent
of the council. One of said appointees shall be a master electrician hold-
ing a 'Certificate A' Hcense issued under chapter one hundred and forty-
one, a citizen of the commonwealth, and shall have had at least ten years'
experience as an employing master electrician, and one shall be a journey-
man electrician holding a ' Certificate B ' license issued under said chapter,
shall be a wage earner, a citizen of the commonwealth, and shall have
had at least ten years' practical experience in the installation of wires and
appliances for carrying electricity for light, heat or power purposes. The
state fire marshal shall be chairman. The board shall appoint an execu-
tive secretary who shall be a wage earner, a citizen of the commonwealth,
and a practical electrician of at least ten years' experience in such instal-
lation. The members, ex officiis, shall receive no compensation for their
services under chapter one hundred and forty-one, but the appointive
members shall each receive for their services thereunder a salary^ of five
hundred dollars. The board may expend for the salaries of the appointive
members and of the secretary and other employees and for necessary
traveling and other expenses for themselves and their employees such
sums as are annually appropriated therefor."
G. L. (Ter. Ed.) c. 30, § 6A, provides:
"If any member of a permanent state board or commission who serves
as such by virtue of holding any other office or position is unable by
reason of absence or disability to perform his duties as such member, he
may, by a writing filed in the office of such board or commission, desig-
nate an officer or employee in his department who shall, without addi-
tional compensation therefor, perform such duties in case of and during
such absence or disability, but a person so designated shall have no author-
ity to make any appointments or removals. Any such designation may in
like manner be revoked at any time."
The terms of said section 6A are complied with by a written designation,
filed in the office of the said board by an ex officio member, of a person
to perform the duties of such ex officio member during his absence or
disability. This designation continues in elTect until revoked and is not
rendered inoperative because the member making it may from time to
time perform the duties himself.
2. Your second question is as follows:
"If an ex officio member is neither absent from the city where the
meeting of the examiners is to be held, nor disabled, has he the right to
designate an officer or employee in iiis department to p(^rform his duties
as an examiner of electricians?"
I answer this question in the affirmative.
The intent of the Legislature in enacting said section 6A would appear
to have been to guard against inability to function by a state board or
116 P.D. 12.
commission composed in whole or in part of persons holding other posi-
tions or offices in the public service, the duties of which require individual
attention at various times. To give effect to such legislative intent, the
word "absence" as used in said section 6 A is not to be construed narrowly
but in a broad general sense so as to comprehend an "absence" from a
meeting however occasioned.
Very truly yours,
Robert T. Bushnell, Attorney General.
Retirement — Veteran — Continuity of Period of Ten Years^ Service for the
Commonwealth.
Dec. 29, 1943.
Hon. Paul W. Foster, Chairman, Commission on Administration and
Finance.
Dear Sir : — In a recent letter you have set forth various unusual
facts relative to the removal and reinstatement of a veteran in the service
of the Commonwealth, and have asked whether the period after such
removal and before reinstatement may be included in the computation
of the ten years during which such veteran may be held to have "been
in the service of the commonwealth" under the provisions of G. L. (Ter.
Ed.) c. 32, § 57.
If an employee has been vaHdly removed from the service of the Com-
monwealth but is later reinstated, the time of separation from the service
may not be counted as part of said period of ten years. If, however, such
removal was invahd and there was a subsequent reinstatement, the period
of non-employment is not to be taken to be a time of separation from
the service and may be counted in computing the said period of ten years'
service.
The facts which you have set forth with relation to said veteran, whose
retirement is, as you state, under consideration, are not sufficient of them-
selves to disclose whether his removal from his position in the service of
the Commonwealth was valid. Nevertheless, from the facts as you have
set them forth in your letter and its accompanying documents, it appears
that, after what purported to he his removal had taken place, the em-
ployee was later reinstated in his position and brought suit to recover
the amount which he would have received as compensation from the
Commonwealth during the period between such removal and his rein-
statement; and that upon such suit, by agreement of the parties entered
into for the Commonwealth by the then Attorney General, the employee
recovered a judgment for such compensation, which judgment was satis-
fied by payment of the amount thereof by the Commonwealth to the
employee.
The rendition of this judgment with the consent of the then Attorney
General would appear to be a sufficient determination that the employee's
removal was not valid, so as to justify the retirement authority passing
upon the employee's present application for a veteran's retirement under
said G. L. (Ter. Ed.) c. 31, § 57, in counting the period of the employee's
absence from work between the date of the purported removal and the
date of the reinstatement as part of the ten years "in the service of the
commonwealth" required by said section 57 as a prerequisite for a veteran
employee's retirement.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 117
Civil Service— Chief of Police — Acceptance of St. 191 1, c. 468, by City
of Attleboro — Procedure under G. L. {Ter. Ed.) c. SI, § 49A.
Jan. 3, 1944.
Hon. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have asked my opinion as to whether the position
of Chief of Pohce of the City of Attleboro, which is not now under the
provisions of the Civil Service Law, may be made subject thereto, by
acceptance by the city of G. L. (Ter. Ed.) c. 31, § 49.
I am of the opinion that such position may not be placed under the
Civil Service Laws by acceptance by the city of said section 49.
You inform me that the said city has not accepted the provisions of
St. 1911, c. 468.
G. L. (Ter. Ed.) c. 31, § 49, provides:
"This chapter and the rules made hereunder shall apply to superin-
tendents, chiefs of poHce and chief marshals in cities which have accepted
chapter four hundred and sixty-eight of the acts of nineteen hundred and
eleven in the manner therein provided, and in towns which have a police
force subject to this chapter, and which have accepted said chapter four
hundred and sixty-eight, or accept this section, by vote at an annual town
meeting."
From its provisions it is plain that, if a city has not accepted St. 1911,
c. 468, entitled "An Act to extend the provisions of the civil service act
to chiefs of police of certain cities and towns," and which by its terms was
to be submitted to the voters in cities at the annual state election next
after its passage, and was to be in force only in such cities as accepted
it by a majority of the voters voting thereon, section 49 does not apply to
the chief of police of such a city. Towns, as distinguished from cities, hav-
ing a pohce force under Civil Service, may become subject to section 49
by accepting it at an annual town meeting, even if they have not pre-
viously accepted said St. 1911, c. 468.
The City of Attleboro is not left without a mode by which it may place
the position of chief of police under Civil Service if the incumbent thereof
has been in office continuously for not less than five years. G. L. (Ter.
Ed.) c. 31, § 49A, provides a mode by which the inhabitants may vote
upon the question of placing such office under Civil Service, irrespec-
tive of whether they have accepted the provisions of St. 1911, c. 468,
inasmuch as the provisions of said section 49 A are made applicable, with
certain specified exceptions, "to any municipal office the incumbent of
which shall have served therein continuously for not less than five years
. . . notwithstanding any provision of law exempting such office . . .
from any provision of this chapter" (c. 31).
Very truly yours,
Robert T. Bushnell, Attorney General.
Settlement — Veteran — Parents — Legislative Intent.
Jan. 19, 1944.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — You have asked my opinion as to the place of settlement
of the parents of a certain veteran who enlisted in the United States Navy
from New York on March 27, 1918, served therein during the first World
War, and was honorably discharged on November 7, 1919.
118 P-D. 12.
I am of the opinion that these parents have a settlement in Springfield.
You have informed me that this veteran at no time resided in Massa-
chusetts, and I assume from the facts as you have set them forth that
he never had a settlement in Massachusetts. You also advise me that
the veteran's parents hved in Springfield from April, 1933, to September 1,
1938, and on the latter date removed to Palmer, where they have since
lived. You state that the town contends that the service of the veteran
in the first World War prevented the settlement, which I assume from
the facts which you have stated the parents had acquired by their five
years' residence in Springfield, under G. L. (Ter. Ed.) c. 116, § 1, cl.
First, from being defeated by their removal from that city.
The fact that the parents have lived in Palmer for the past five years
would ordinarily enable them to acquire a new settlement in that town
which would defeat their Springfield settlement. However, as you have
informed me, during the last four years of their stay in Palmer they have
been receiving Old Age Assistance. This fact precludes them from acquir-
ing a new settlement in Palmer by force of G. L. (Ter. Ed.) c. 116, § 2,
as amended, which, in its applicable portion, provides:
''No person shall acquire a settlement, or be in the process of acquir-
ing a settlement, while receiving public relief other than aid or relief re-
ceived 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. . . ."
Ordinarily the failure of the parents to reside in Springfield during the
past five years would defeat the settlement which they had acquired in
that city and they should now be considered as unsettled persons, unless
the defeat of their Springfield settlement by such absence is prevented
by force of the provisions of G. L. (Ter. Ed.) c. 116, § 5.
G. L. (Ter. Ed.) c. 116, § 5, in its last sentence, which in its present
form was enacted by St. 1926, c. 292, reads:
". . . The settlement existing on August twelfth, nineteen hundred and
sixteen, or any settlement subsequently acquired, of a person whose serv-
ice in or with the army, navy or marine corps of the United States quali-
fies him to receive aid or relief under the provisions of chapter one hun-
dred and fifteen, and the settlement of his wife, widow until she remar-
ries, father or mother, qualified by his service to receive relief under said
chapter one hundred and fifteen, shall not be defeated, except by failure
to reside in the commonwealth for five consecutive years or by the acqui-
sition of a new settlement."
Under the provisions of G. L. (Ter. Ed.) c. 115, the "service" of a
person in the navy of the United States in the first World War, resulting
in an honorable discharge, is "service" which qualifies him to receive relief
under the provisions of that chapter. It is true that in addition to hav-
ing had such "service" a veteran must have certain other qualifications
to entitle him to receive relief, such as a legal settlement in a town of the
Commonwealth. However, said chapter 116, section 5, does not provide,
with relation to the continuance of existing settlements by the parents
of a veteran, that its provisions shall be dependent not only on such par-
ents being qualified by the "service" of their son to receive relief under
chapter 115 but also by his possession of other qualifications, such as set-
tlement or residence in a town of the Commonwealth which, together
with his service, would entitle him to receive relief under said chapter 115.
P.D. 12. J19
It would appear that it was the intent of the Legislature to prevent
the defeat of acquired settlements of the parents of an honorably dis-
charged veteran, irrespective of where such veteran might have his resi-
dence or settlement.
It follows from these considerations that the veteran's parents, about
whom you have written me, have not lost the settlement which they
acquired in Springfield.
Very truly yours,
Robert T. Bushnell, Attorney General.
Police Commissioner of Boston — Hackney Carriage Licenses — Increase
and Decrease of Number — Department of Public Utilities.
Jan. 27, 1944.
Col. Thomas F. Sullivan, Police Commissioner.
Dear Sir: — You have asked my opinion upon four questions of law
relative to hackney carriage Ucenses in Boston. Your authority with rela-
tion to such hcenses is derived directly from an act of the Legislature.
Hence the Attorney General may appropriately advise you with respect
to such questions.
1. Your first question reads:
"Has the PoUce Commissioner the authority to issue additional hack-
ney carriage licenses over and above those that are now outstanding?"
I answer this question in the negative.
You advise me that there are now 1366 hackney carriage licenses out-
standing and that this is approximately the same as the number of out-
standing licenses on January 5, 1940, when the Police Commissioner pro-
mulgated his General Order 427. This order by its terms decreased the
number of such licenses to be granted from 1525, which had been desig-
nated in 1934, to 1200.
St. 1930, c. 392, as amended by St. 1934, c. 280, provided in its appli-
cable part :
"Said commissioner shall, as soon as may be, fix a limit for the number
of hcensies to be issued under this section, which limit shall be based upon
the number of licenses then issued and outstanding but shall not be in
excess of fifteen hundred and twenty-five, and he may from tiine to time,
after reasonable notice and a hearing, decrease the limit so fixed, but in
no event to a number less than nine hundred."
By these provisions the Police Commissioner is authorized to decrease
from time to time the maximum number of licenses to be issued, but
not to a number less than 900. No authority is vested in the Commis-
sioner to increase the number of hackney licenses to be issued. Such
number having once been decreased, a Police Commissioner has no author-
ity to increase it.
However, authority for bringing about an increase in such number is
reserved and granted to the Department of Public Utilities, which may
make a determination with relation to such an increase. Said chapter
392, as amended, provides appropriate procedure for bringing about such
a determination in the following terms:
"If an applicant is refused a license hereunder by reason of the fact
that the maximum number of licenses Limited hereunder has been issued,
120 PD. 12.
the department of public utilities, on petition of such applicant, may,
after a hearing, determine that pubhc convenience and necessity require
a higher limit than that fixed by said commissioner or previously estab-
lished by said department and shall establish the limit so required, in
which case the limit set by said department shall be considered final until
again changed as herein provided."
2. Your second question reads:
"What is the present limit of hackney carriage licenses?"
The present maximum limit of hackney carriage licenses to be issued
is 1,200, as estabhshed by said General Order 427 of the then Commis-
sioner in 1940. This may not be increased except by action of the Depart-
ment of Public Utilities.
3. Your third question reads;
"If public convenience and necessity require, has the Police Commis-
sioner the right, after reasonable notice and hearing, to increase or de-
crease the number of hackney carriage licenses in Boston, provided the
number remains between 1525 and 900?"
As above pointed out, the Legislature has given the Pohce Commis-
sioner the right to decrease the number of hackney carriage licenses to be
issued to a minimum of 900, but it has given him no authority to increase
an estabhshed number. The Legislature has confined the authority to
increase an established number to the Department of Public Utilities
as above set forth.
4. Your fourth question reads:
"Should the Department of Public Utihties fix a higher limit than the
present limit, may the Police Commissioner, after reasonable notice and
hearing, decrease the Hmit so fixed by the Department of PubUc Utilities?"
I answer this question in the negative.
The Police Commissioner has no authority under the provisions of said
chapter 392, as amended, to decrease the number of hackney carriage
licenses to be issued below a limit fixed by the Department of Public
Utilities. This authority exists only with relation to a number estab-
lished by a Police Commissioner as shown by the use of the words ^^ de-
crease the limit so fixed" in said chapter 392, having reference to a number
established by such a commissioner as set forth in the first part of the
sentence wherein the quoted words appear.
With regard to the limit fixed by the Department of Public Utilities,
said chapter 392, as amended, provides that it should be "considered
final until again changed as herein provided." However, no manner of
changing, through a decrease of the established number of licenses, is pro-
vided in said chapter, except by action of the commissioner with relation
to a limit fixed by a commissioner. No provision appears in the statute
for decreasing a limit fixed by the Department of Public Utilities.
If this condition, which is created by the provisions of the applicable
statute, appears to be undesirable, application should be made by you
to the next • session of the Legislature for an amendment which will vest
the commissioner with broader powers.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 121
Retirement — Veteran — Incapacity — Status as One in the Service of the
Commonwealth.
Feb. 3, 1944.
Hon. Paul W. Foster, Chairman, Commission on Administration and
Finance.
Dear Sir: — You have stated that a veteran of World War I, who
began employment in the classified civil service of the Commonwealth in
1928, entered the military or naval forces of the United States in World
War II; that a year has not passed since the termination of his military
or naval service; and that he has now become incapacitated for further
service with the Commonwealth and asks to be retired under the provi-
sions of G. L. (Ter. Ed.) c. 32, §§ 56-60.
Since he is so incapacitated, he cannot file with the Division of Civil
Service a "certificate of a registered physician that he is not physically
disabled ... for performing the duties of the office or position previ-
ously held by him," which is a condition precedent to his being reinstated
in such office or position by the terms of St. 1941, c. 708, § 2.
You indicate that the veteran in question possesses all the qualifica-
tions necessary for retirement if it can be said that he is "in the service of
the commonwealth" as those words are used in said chapter 32, sec-
tions 56-60.
You ask my opinion as to whether such veteran may presently be
retired.
I am of the opinion that he may be so retired.
It is provided by St. 1941, c. 708, § 1, as amended by St. 1943, c. 548,
§ 1, that:
"... 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 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 serve . . . shall, except as herein-
after provided, be deemed to be or to have been on leave of absence;
and no such person shall be deemed to have resigned from his ofl^ice in the
service of the commonwealth, ... or to have terminated such service,
until the expiration of one year from the termination of said military, or
naval service by him ..."
It is plain that in enacting said section 1 the intent of the Legislature
was to provide that a person leaving his employment with the Common-
wealth for the purpose of entering the armed forces of the United States
on or after January 1, 1940, should be considered and treated as still
being in the service of the Commonwealth until a year after his discharge
from such armed forces, notwithstanding that he was also deemed to be
on a leave of absence.
This legislative intent is not changed or modified by the provision in
section 2 of said chapter 708 with reference specifically to employees whose
positions are governed by the Civil Service Law.
With relation to a civil service employee who leaves the employment
of the Commonwealth to enter the armed forces of the United States, it
is provided in said section 2 that he may be reinstated in ''the office or
position previously held by him," upon requesting such restoration and
filing a certificate "that he is not physically disabled or incapacitated for
performing the duties of the office or position previously held by him," with
122 P.D. 12.
a proviso that, if such office or position has been filled, "he shall be em-
ployed in a similar position ..."
Section 2 does not provide that a civil service employee, in contraven-
tion of the general provision concerning employees set forth in said sec-
tion 1, is to be deemed to have been separated from the service of the
Commonwealth by reason of his leaving it to enter the armed forces of
the United States. Said section 2 established, not a mode by which such
an employee is to be reinstated in the "service of the commonwealth,"
from which, by the terms of said section 1, he is deemed not to have been
separated, but a mode by which he may be replaced in the same office or
position in the classified civil service which he previously held.
The incapacity of the veteran subject to the Civil Service Law does, by
the terms of said section 2, prevent his restoration to his office or posi-
tion, but it does not oust him from the "service of the commonwealth"
for all purposes nor for the purposes of retirement under G. L. (Ter. Ed.)
c. 32, §§ 56-60.
Sections 1 and 2 are parts of the same statute and are to be read to-
gether so far as may be so as to form an harmonious whole and to effectu-
ate the general legislative intent manifest in the statute, which is to pro-
tect rights and privileges in connection with public offices held by those
who enter the armed forces of the United States during the present war.
Very truly yours,
Robert T. Bushnell, Attorney General.
Retirement — State Police Officers and Inspectors — Superannuation
Allowance — Length of Service.
Feb. 3, 1944.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir: — On behalf of the State Board of Retirement you have
asked my opinion upon three questions of law relative to the retirement
of state police officers and inspectors under G. L. (Ter. Ed.) c. 32, § 68C,
as amended by St. 1943, c. 545, § 2.
Your questions are as follows:
" 1. Under the provisions of G. L., c. 32, § 68C, as amended by St. 1943,
c. 545, § 2, is retirement compulsory for an officer or inspector who was
last appointed on or after September 1, 1921, under G. L., c. 22, §6, when
said officer has reached his sixty-fifth birthday but has performed service
in the division of state police or in the division of inspections in the de-
partment of public safety for less than twenty years?
2. Is said officer or inspector entitled to complete twenty years' service
before being retired?
If your answer to the first question is in the affirmative, would such an
officer or inspector who has reached the age of 65, but who has served
somewhat less than 20 years, be entitled to the retirement benefits estab-
lished by the provisions of St. 1943, c. 545?"
The answers to these questions are to be found in G. L. (Ter. Ed.)
c. 32, § 68C, as amended by St. 1943, c. 545, § 2, which, in its applicable
parts, reads:
" (1) Any officer or inspector . . . who has performed service in the
division of state police or in the division of inspections in the department
of public safety for not less than twenty years, shall be retired by the
P.D. 12.
123
state board of retirement upon attaining age fifty-five or upon the expira-
tion of such twenty years, whichever last occurs, unless the rating board
certifies to the commissioner of public safety upon examination of tlie
officer or inspector when he attains age fifty-five and annually thereafter,
that the mental and physical condition of the officer or inspector is such
that he should be continued in his employment, but in any event no such
officer or inspector shall remain beyond his sLxty-fifth birthday. . . .
(3) Upon retirement under paragraph (1) or paragraph (2) of this
section, the oflficer or inspector shall receive a retirement allowance con-
sisting of:
(a) A life annuity as provided in said section four G; and
(6) A pension of such amount as will, together with the life annuity
set forth in paragraph (1) (a) of section four G, be equal to one half of
his average annual rate of regular compensation during the five years
immediately prior to the date of his retirement."
Two things seem clear from the phraseology of section 68C as to the
policy adopted by the Legislature:
1. No officer or inspector may be retired for superannuation upon a
retirement allowance unless he has served for at least twenty years.
2. Any officer or inspector who has passed his sixty-fifth birthday is
required to leave the service, regardless of whether he is entitled to receive
a retirement allowance based upon twenty j^ears of service or not.
The Legislature, of course, has the power to remedy such injustices as
may occur as a result of the strict terms of the act passed by it.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Rules — Employees having Prisoner under their Charge.
Feb. 3, 1944.
Mr. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — You have directed my attention to G. L. (Ter. Ed.)
c. 31, § 4, par. sixth, as amended, which was inserted by St. 1932, c. 282,
§ 1, and which in its context provides:
'"Section 4. The following, among others, shall be included within
the classified civil service bj^ rules of the commission: . . .
Instructors in the state prison, the Massachusetts reformatory and the
state prison colony, and all other employees in said institutions having
prisoners under their charge."
You have annexed to your letter a list of employees in the state prison,
reformatory and colony who, the Commissioner of Correction has informed
you, have prisoners in their charge from time to time in the performance
of their regular duties.
You ask me "whether or not St. of 1932, c. 282, classifies under civil
service, in addition to instructors, all other employees in the state prison,
the Massachusetts reformatory and the state prison colony having
prisoners under their charge."
The amendment of G. L. (Ter. Ed.) c. 31, § 4, by the insertion of the
quoted provisions of St. 1932, c. 282, § 1, is not self-executing in the sense
that by mere force of its terms "employees having prisoners under their
charge" are brought within the classified civil service.
124 P.D. 12.
The statute provides that such employees shall be included "by rules
of the commission." However, since Rule 30, section 2, was in force when
said chapter 282 became effective, its provisions were made operative by
force of said rule, and the "employees having prisoners under their charge,"
mentioned in the statute, became members of the classified civil service.
Rule 30, § 2, reads:
"Whenever any class of employees in the Commonwealth or in any
city or town not already in the classified service is placed therein, either
by statute or by a rule, or whenever the Commonwealth, any city or
town takes over any work that has previously been done by a private
contractor, the Commissioner shall include in the classified service all of
the employees who have been actually doing the work prior to the classifi-
cation."
It follows from the provisions of this rule, read in connection with the
statute under consideration, that it is the duty of the Director, as it was
formerly the duty of the Commissioner of Civil Service, to include in the
classified civil service all those employees in the designated correctional
institutions determined by him as a matter of fact to have "prisoners
under their charge."
Very truly yours,
Robert T. Bushnell, Attorney General.
Metropolitan District Water Supply Commission — Reservoir in Quincy.
Feb. 3, 1944.
Hon. Eugene C. Hultman, Chairman, Metropolitan District Water Supply
Commission.
Dear Sir : — You have asked my opinion as to whether the Metro-
politan District Water Supply Commission is authorized by the provi-
sions of St. 1938, c. 460, as amended by chapter 501 of the acts of the
same year, "to expend any moneys to complete plans and specifications
for a reservoir in the Blue Hills in the City of Quincy."
You inform me that:
"The purpose of this reservoir is to deUver a supply of water to the
Southern Distribution System of the Metropolitan District Commission
under increased pressure, that being a part of the regular supply of the
Metropohtan Water District."
The Attorney General does not determine questions of fact. Upon the
assumption that the facts relative to the proposed reservoir are as you
have set them forth; namely, that it is to deliver a supply of water to
a part of the regular supply of the metropolitan water district under
increased pressure, I advise you that your Commission is authorized to
expend moneys to complete plans and specifications for such reservoir.
St. 1938, c. 460, § 1, as amended by St. 1938, c. 501, § 1, provides, in
part, that:
"The metropolitan district water supply commission, . . . is . . .
authorized, for the purpose of improving the distribution of water from
the sources of supply to the metropolitan water district ... to con-
struct forthwith . . . (10) such other works as may be necessary or
desirable to dehver the entire regular supply of the district under increased
pressure."
P.D. 12. 125
For the purpose of doing; such work other provisions of said section 1
make available the funds provided for metropolitan water purposes V)y
St. 1927, c. 321, and St. 1926, c. 875, with certain limitations not here
material.
Very truly yours,
Robert T. Bushnell, Attorney Ccneral.
Insurance — Foreign Life Company — Amount of Capitnl Rrnuired to
Write Accident and Health Insurance.
Feb. 4, 1944.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir: — You have requested my opinion on six questions relative
to the amount of capital which should be required of a foreign life insur-
ance company desiring to issue policies of accident and health insurance
in addition to life insurance contracts.
You inform me that the company in question has a paid-up capital of
$375,000 and surplus funds in addition; that its charter powers and the
laws of its domiciliary state authorize it to write both forms of insurance,
and that no retaliatory provisions of the law of such state or of the Com-
monwealth have any application.
1. Your first question reads:
"In determining the financial requirements which must be complied
with by a foreign life insurance company admitted to transact business
in the Commonwealth and which desires to issue accident and health in-
surance policies therein, is the Commissioner limited to the provisions set
forth in section 153 which require only that the company have 'the requi-
site funds of a life company'?"
In answering this question I direct your attention to the fact that the
provisions of G. L. (Ter. Ed.) c. 175, § 153, deal solely with requirements
for the admission of foreign life companies to the Commonwealth and for
their authorization to transact life insurance business within Massachu-
setts. The section sets forth certain financial conditions which must be
met before there can be admission and authorization to transact life in-
surance business, but it does not purport to set forth the requirerrients
and conditions which must be met, after admission and authorization to
do business as a life company, to secure authorization to transact addi-
tional forms of the insurance business, such as accident and health. This
being so, I answer your question by advising you that, although the
Commissioner of Insurance is limited by the provisions of said section
153 in passing upon financial requirements requisite for the admission of
a foreign life company and its authorization to transact the hfe insurance
business, such provisions have no apphcation whatever to the require-
ments which are provided for the doing of accident and health insurance
business by a foreign life company already admitted and authorized to
transact the business of life insurance in the Commonwealth.
2. Your second question reads :
"In determining the financial requirements of a foreign life insurance
company admitted to transact business in the Commonwealth and which
desires to issue accident and health insurance policies therein, is the Com-
missioner required to apply the standards specified in section 152 of
chapter 175?"
126 P.D. 12.
I answer this question in the affirmative.
G. L. (Ter. Ed.) c. 175, § 152, reads:
"No foreign company shall transact in this commonwealth any kind
of business not specified in its charter and in its license. Any foreign
stock company, or any company described in section one hundred and
fifty-five, admitted to the commonwealth, may, if its charter permits, be
licensed to transact the kinds of business permitted to domestic stock
companies under section fifty-one, subject to the provisions of clause (d)
of said section fifty-one and of subdivision (2) of the second clause of
section one hundred and fifty-one and of the first clause of said section
one hundred and fifty-five. Any foreign mutual company admitted to
the commonwealth may, if its charter permits, be licensed to transact
the classes of business permitted to domestic mutual companies under
section fifty-four, subject to the provisions of clause (c) of said section
fifty-four and of subdivision (3) of the second clause of said section one
hundred and fifty-one. Any foreign hfe company admitted to the com-
monwealth may, if its charter permits, be Ucensed to transact the kinds
of business permitted to domestic fife companies under section one hun-
dred and nineteen."
This section, by reference to other parts of chapter 175, sets forth the
kinds of insurance business which a foreign stock company may combine.
It also specifies the amount of capital required of such a company before
it may be authorized to transact any such kind or kinds of business in
combination. The Commissioner is not authorized, explicitly or by im-
phcation, to waive or to change these requirements established by the
Legislature.
You advise me that you have informed the officials of the foreign hfe
insurance company in question "that the statutes required a four hun-
dred thousand dollar capital and a two hundred thousand dollar surplus
before the company could be licensed to combine these two lines of in-
surance;" that is, life, and accident and health. The information which
you gave in this respect was, in my opinion, correct and set forth the
requirements established by the Legislature by said section 51 (d) for a
company combining the two lines of insurance in question.
3. Your third question reads:
"Has the Commissioner the discretionary power in determining the
financial requirements of a foreign life company which proposes to issue
accident and health insurance policies to adopt the standards specified in
paragraphs three and ten of section 48 and thereby allow such company
to combine these lines on a minimum capital of three hundred thousand
dollars and a surplus of at least two hundred thousand dollars?"
I answer your question in the negative.
The Commissioner in determining the financial requirements of a foreign
life company, which proposes also to transact in this Commonwealth the
business of accident and health insurance, is not vested with discretion.
The requirements are set forth in the statute and must be met.
Such a company may by the terms of said section 152 "transact the
kinds of business permitted . . . under section fifty-one, subject to the
provisions of clause (d) of said section fifty-one ..."
By the provisions of clause (d) of said section 51 a company is au-
thorized to transact certain branches of the insurance business, including
accident and health insurance (by reference to § 47, cl. 6), in combination
P.D. 12. 127
with life insurance if "it has a paid-up capital of not less than four hundred
thousand dollars and net cash assets over all liabilities ... of not less
than two hundred thousand dollars, exclusive of said capital."
Section 48, to which you refer, provides (by reference to the tenth
paragraph of section 47) for the organization of companies to transact life
insurance business, and also certain other branclies of the insurance
business, including accident and health, in combination with life insurance,
if the company has a capital of not less than $400,000, with a net cash
surplus of not less than $200,000, exclusive of said capital. It also provides
in said paragraph 10 that if the company be organized to do life insurance
business alone it shall have a capital of $200,000. Said section 48, in
paragraph 3, provides that a company organized under "the sixth clause"
of section 47 "to insure only against sickness and against" injury by
" accident of the insured " maj' have a capital of $100,000. The phraseology
of this third paragraph indicates a legislative intent that its provisions
shall apply to a company organized for the sole purpose of writing accident
and health insurance, as distinguished from the other kinds of insurance
mentioned in said section 47, clause 6, and writing it solely, not in combina-
tion with hfe or any other form of insurance. Since this is the legislative
intent as expressed in said section 48, the standards specified in said
paragraph 3 of section 48 and in paragraph 10 of section 48 are separate
and distinct and do not permit of a combination of the provisions of
paragraphs 3 and 10 to reduce the financial requirements for a company
combining accident and health with life insurance, namely: $400,000,
with a surplus of $200,000, to the $300,000 of capital, with $200,000 of
surplus mentioned in your question.
4. Your fourth question reads:
"May a foreign company presently transacting the business of life
insurance in the Commonwealth issue policies of accident and health
insurance if its paid-up capital is less than four hundred thousand dollars
even though its surplus is adequate?"
I answer this question in the negative for the reasons set forth in answer
to your third question. The Legislature has provided, as I have already
indicated, definite amounts of both capital and surplus which are essential
financial requirements and may not be varied and a large surplus treated
as making up a deficiency in the amount of capital required by the Legis-
lature.
That the legislative intent was to require a paid-up capital of $400,000
and a surplus of $200,000 of companies writing hfe insurance and transact-
ing also any of the kinds of business described in said section 47, clause
sixth, of which accident and health business is one, and not to make some
other requirement for a life company combining with life insurance only
accident and health of all the kinds mentioned in said clause sixth, is
indicated by the fact that the Commissioner of Insurance in his report
to the Legislature of 1935 recommended that:
"The law should be amended to authorize a company to combine these
two forms of coverage (life, and accident and health), providing it has a
paid-up capital of not less than $300,000 and a net cash surplus of not less
than $300,000, exclusive of such capital,"
and that proposed acts embodying such amendment were introduced into
the Legislature in 1935 as House Bills 36 and 44, and in 1943 by House
Bill 653, and that these measures were defeated in the General Court.
128 P.D. 12.
5. Your fifth question reads :
"Are the financial requirements of a foreign company which are in-
corporated by reference in section 152 nulhfied in any way by the first
proviso in section 150 which reads 'no provision of law which by its terms
apphes specifically to domestic life companies shall thereby become
appHcable to foreign life companies'?"
I answer this question in the negative.
Said G. L. (Ter. Ed.) c. 175, § 150, reads:
"Foreign companies, upon complying with the conditions herein set
forth applicable to such companies, may be admitted to transact in the
commonwealth, as provided in section one hundred and fifty-seven, any
kinds of business authorized by this chapter, subject to all general laws
now or hereafter in force relative to insurance companies, and subject to
all laws appHcable to the transaction of such business by foreign companies
and thfeir agents; provided, that no provision of law which by its terms
apphes specifically to domestic life companies shall thereby become
appHcable to foreign life companies; and provided, further, that the
provisions of section eighty-one relative to the contingent mutual HabiHty
of members shall not apply to any foreign mutual fire company which
had been admitted to transact business in the commonwealth prior to
January first, nineteen hundred and twenty-one and was then actually
transacting business therein without complying with said provisions."
Sect'ons 51 and 47 of said chapter 175 by their terms apply to domestic
companies. The provisions of section 152 refer to section 51 specifically
and to section 47 by necessary implication. Thus sections 51 and 47 are
made appHcable to foreign companies and hence cannot be considered as
specifically applying to domestic life companies, as the word "specifically"
is used in said section 150.
My opinion in this respect is confirmed by a consideration of the fact
that prior to 1930 domestic life insurance companies were incorporated
and empowered only under special acts of the Legislature and not under
general provisions for the organization of life companies embodied in the
statutes. Said section 150 in its present form was enacted long before
1930 and the provisions of law, which by their terms then applied spe-
cifically to domestic life companies, were those relative to annual dividends,
now in section 140, to non-forfeiture values now in section 144, and to
investments now in sections 63-66, all of said chapter 175, as amended.
I am informed that the departmental interpretation of the provisions of
said section 150, made and applied by your department over a period of
years, has been consistent with the opinion which I have expressed in
my answer to this, your fifth, question.
6. Your sixth question reads:
"Has the Commissioner the discretionary power to accept in substitu-
tion of a four hundred thousand dollar capital requirement specified in
the statute a three hundred and seventy-five thousand dollar capital and
a twenty-five thousand dollar voluntary deposit made by the company
with the proper official of the domiciHary state or of this Commonwealth?"
I answer this question in the negative.
The provision found in section 153 of chapter 175, that a foreign life
company may be admitted to do business in this Commonwealth if "in
P.D. 12. 129
the opinion of the commissioner, it has the requisite funds of a Hfe com-
pany ..." does not vest the Commissioner with discretion to vary the
requirements set forth in the chapter for the amount of capital and surplus
necessary for a foreign company which has been admitted to transact a
life insurance business and desires to combine the business of accident
and health therewith, nor to accept a voluntary deposit in lieu of the
required capital or specified surplus. No provision of the statutes vests
the Commissioner with such discretionary power.
Very truly yours,
Robert T. Bushnell, Attorney General.
Insurance — Illegal Inducements to Insure — "Stock Company Associa-
tion"— Home Owners' Loan Corporation — Unlicensed Foreign Com^
panics.
Feb. 14, 1944.
Mr. Edmund S. Cogswell, First Deputy and Acting Commissioner of
Insurance.
Dear Sir : — You have asked my opinion on several questions of law
relative to policies issued by insurance companies which, as you inform
me, are members of The Stock Company Association, so called, and as
such members insure properties in Massachusetts as well as in other states
in which the Home Owners' Loan Corporation has an insurable interest
other than as an owner, the policies covering both the interest of the
property' owner and the insurable interest of the corporation.
You also inform me that The Stock Company Association is an unin-
corporated organization of 221 insurance companies, with offices in Wash-
ington, D. C; that five insurance companies which are domestic com-
panies of Massachusetts are members of the Association; and that 77
of the foreign member companies are not licensed to do business in this
Commonwealth. Policies of insurance are issued for properties in Massa-
chusetts by those member companies which are domestic to the Com-
monwealth but, as appears by their terms which you have submitted to
me, all the companies in the Association are by agreement jointly and
severally liable upon the losses sustained under such policies.
The Home Owners' Loan Corporation is an instrumentality of the
United States created pursuant to the Home Owners' Loan Act of 1933,
12 U. S. C. 1463, as amended, for the rehef of distressed owners of real
property. I am ad\ased that the Corporation requires each owner who
is a borrower from it, and each conditional vendee, to provide for the
maintenance of fire and other insurance through The Stock C'ompany
Association, or otherwise, on the real property, which is the Corpora-
tion's security, in an amount sufficient to protect the Corporation's in-
terest therein. When the borrower or vendee fails to furnish such insur-
ance, the Corporation procures it from The Stock Company Association
and the premium is charged to and collected from the borrower or vendee.
The Corporation does not pay and, under the agreement between it and
the Association, does not agree to pay the premium.
I am advised that in 1935 the Home Owners' Loan Corporation en-
tered into an agreement with The Stock Company Association for the
writing by the Association, through its members, of policies in which the
Home Owners' Loan Corporation had an insurable interest. This agree-
ment, modified somewhat in form in 1939 and 1940, by amendment pro-
130 P.D. 12.
vided for the payment by The Stock Company Association to the Home
Owners' Loan Corporation of 25 per cent of the premium of the poHcies
written under the agreement in consideration of services to be rendered
by the latter. These services included furnishing data relative to real
property, performing other acts in connection with real estate likely to be
of value to the Association, and assisting in a fire prevention program.
In 1941 the agreement was modified by a supplemental agreement, which
substituted for the provision that 25 per cent of the premium should be
paid to the Corporation for its services to the Association this clause with
respect to a monthly payment of "such sum as may be agreed upon by
the Corporation and the Association, as reasonable compensation for such
services." Pohcies upon the various properties insured through The Stock
Company Association are written by member companies to which they
are allocated by the Association. The agreement of the companies which
are members of the Association and the constitution of such Association
provide that they all share in the losses incurred by any of the insuring
members as well as in the income and profits of the Association and of the
several members as such, and in the expenses of the Association. The
pohcies when written do not contain any mention of the payments to be
made to the Corporation by the Association.
1. The first question which you have asked me is as follows:
"In view of the fact that such pohcies as are issued by the member
companies of The Stock Company Association do not state specifically that
any payment thereunder is to be made to the Corporation, we wish to be
advised whether or not such policies as are issued in accordance with the
agreement between these two organizations are in violation of the Re-
bating Law (G. L., c. 175, §§ 182, 183, 184)."
The applicable portion of G. L. (Ter. Ed.) c. 175, § 182, provides:
"No company, no officer or agent thereof and no insurance broker shall
pay or allow, or offer to pay or allow, in connection with placing or nego-
tiating any pohcy of insurance or any annuity or pure endowment con-
tract or the continuance or renewal thereof, any valuable consideration
or inducement not specified in the pohcy or contract, or any special favor
or advantage in the dividends or other benefits to accrue thereon ; or shall
give, sell or purchase, or offer to give, sell or purchase, anything of value
whatsoever not specified in the policy; ..."
Section 183 forbids the receipt of such inducements, benefits or consid-
erations "not specified in the policy" as are mentioned in said section
182. The provisions of section 184 have no particular applicabihty to
the subject matter of your question.
I answer your first question in the affirmative.
It is immaterial that the amended or the supplemental agreement
between The Stock Company Association and the Home Owners' Loan
Corporation provides for a payment to the Corporation for service to be
rendered of a sum to be agreed upon by the Association and the Corpora-
tion, instead of 25 per cent of the premium on the pohcies written, as in
the terms of the original agreement, since the Corporation itself does not
pay the premium. Whether such payment be in the shape of an agreed
fixed sum paid by the Association, or of a sum measured by a percentage
of the premium paid by the borrower from the Corporation, or of a pay-
ment by the Association of an amount arrived at by agreement, is imma-
P.D. 12. 131
terial. Since the expenses of the Association are borne by the member
companies, any such payment is, in the last analysis, a payment in some
part from the funds of each of the member companies which participate
in the pooling of interests in the Association, and in some degree lessens
the income of each, which is derived in part from premiums, by the pay-
ment of a consideration to the Corporation which, in so far an it hiis an
insurable interest in each of the policies written, may fairly be considered
as an insured.
A payment of the character described to one who is insured is within
the sweep of those forbidden by said section 182. It is manifestly a
"valuable consideration or inducement" to the Corporation to place and
negotiate contracts of insurance on the properties in which it has an
insurable interest with the companies forming the Association.
Since this consideration or inducement is not mentioned in the policies
which are written by the member companies upon the different proper-
ties in which the Corporation has an insurable interest, it would appear
to be prohibited by the explicit terms of section 182.
The offer of payment for services to be rendered by the Corporation,
which is the consideration or inducement involved, is such an integral
part of the transaction whereby pohcies are written upon properties in
which the Corporation has an insurable interest as not to be an inde-
pendent transaction but to be so connected in each instance with the ne-
gotiating or placing of the insurance itself as to come within the prohi-
bition of section 182 (see V Op. Atty. Gen. 344).
It is true that the Corporation itself is not Hable for the payment of
any premiums from which, in a technical sense, a rebate could be made
to it. Nevertheless, the Corporation is in the situation of an insured and,
in connection with the placing or negotiating of pohcies of insurance, to
give it a valuable consideration which from its very nature Ls an induce-
ment for the placing of pohcies with the member companies of the Asso-
ciation (a consideration not available to others) is to violate the intent
of section 182, since such consideration is not specified in the policy.
2. Your second question reads:
"Are such unlicensed foreign companies as share in the 'losses incurred'
under this contract transacting business in this Commonwealth in viola-
tion of the Licensed Resident Agent Law (G. L., c. 175, § 157)?"
Since the foreign companies to which you refer are "unlicensed" they
are not admitted to do business in the Commonwealth and G. L. (Ter.
Ed.) c. 175, § 157, as amended, has no application to them. It cannot
properly be said that such "unlicensed foreign companies" are violating
the provisions of said section 157 which reads, in its applicable part, as
follows :
"Foreign companies admitted to do business in the commonwealth shall
make contracts of insurance upon lives, property or interests therein, . . .
with or in favor of residents thereof, only by lawfully constituted and
Mcensed resident agents therein. ..."
3. Your third question reads:
"Are such domestic companies which are members of The Stock Com-
pany Association transacting business in violation of G. L., c. 175, § 160,
by aiding in the negotiation of pohcies of insurance with foreign companies
not lawfully admitted to transact business in this Commonwealth?"
132 P.D. 12.
I answer this question in the negative.
G. L. (Ter. Ed.) c. 175, § 160, in its appUcable part, reads:
" Whoever, for a person other than himself, acts or aids in any manner
in the negotiation, continuation, or renewal of a policy of insurance or an
annuity or pure endowment contract with a foreign company not law-
fully admitted to issue such pohcies or contracts in this commonwealth
shall, except as provided in section one hundred and sixty-eight, be
punished by a fine of not less than one hundred nor more than five hundred
dollars; ..."
I am of the opinion that it cannot be said that a domestic company
which writes a policy upon the insurable interest of the said Corporation
in Massachusetts "acts or aids in any manner in the negotiation ... of
a policy of insurance . . . with a foreign company not lawfully admitted
to issue such policies or contracts in this commonwealth."
The mere fact that by reason of an agreement, such as that of the
companies forming the said Association, an unlicensed foreign company
will become jointly Hable with others and with a domestic company
writing a policy in Massachusetts does not make the act of a domestic
company writing the policy one which aids "in the negotiation ... of
a policy . . . with a foreign company not lawfully admitted," as the
quoted words are used in said section 160.
4. Your fourth question reads:
"In conducting an examination of the affairs of a domestic company,
the Commissioner is authorized to inquire into the equity of its dealings
with its policyholders (G. L., c. 175, § 4, par. 2). Would the Commissioner
be warranted in determining that an insurance company had not dealt
equitably with all of its policyholders if during an examination it developed
that the company had issued policies to the Home Owners' Loan Corpora-
tion under The Stock Company Association agreement but had not
offered similar contracts to other poUcyholders who were willing to provide
the services mentioned in Clause 6 of the Supplemental Agreement dated
May 9, 1941?"
G. L. (Ter. Ed.) c. 175, § 4. par. 2, in its applicable part, provides:
"At least once in three years, and whenever he determines it to be
prudent, he shall personally, or by his deputy or examiner, visit each
domestic company, and thoroughly inspect and examine its affairs to
ascertain its financial condition, its ability to fulfill its obligations, whether
it has compHed with the law, and any other facts relating to its business
methods and management, and the equity of its dealings with its policy-
holders. ..."
The primary purpose of the inquiry provided for by section 4 in respect
to the equity of the dealings of an insurance company with its policy-
holders is to enable the Commissioner to inform himself of all existing
facts connected with such deahngs. No particular course of action is
enjoined upon him by the statute as a result of such inquiry.
The facts which you have set forth in the foregoing question are not of
themselves sufficient to enable a fair determination of the equitable char-
acter of the deahngs of any member company of the said Association with
its policyholders. In connection with such facts there are obviously others
which would have to be taken into consideration. These would include
P.D. 12. 133
the peculiar character of the said Corporation as an agency of the Fed-
eral Government, the extent of its business, its ubiUty to render vakiabie
fire prevention and other services which might be found to be so much
greater than those of other large insureds as to render its being placed in
a class by itself not unreasonable.
When you have before you all the relevant facts, a determination of
whether the member companies of the Association deal equitably with
their policyholders is one pecuharly within the scope of your judgment.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Public Utilities — Extent of Authority — Vessels Propelled
by Diesel Motor — Steamship.
Feb. 14, 1944.
Department of Public Utilities.
Gentlemen; — You have directed my attention to G. L. (Ter. Ed.)
0. 159, § 12 (a), which reads:
"The department shall, so far as may be necessary for the purpose of
carrying out the provisions of law relative thereto, have general supervi-
sion and regulation of, and jurisdiction and control over, the following
services, when furnished or rendered for public use within the common-
wealth, and all persons, firms, corporations, associations and joint stock
associations or companies furnishing or rendering any such service or
services, in sections ten to forty-four, inclusive, collectively called common
carriers and severally called a common carrier:
(a) The transportation or carriage of persons or property, or both,
between points within the commonwealth by railroads, street railways,
in this chapter called railways, electric railroads, trackless trolleys and
steamships, including express service and car service carried on upon or
rendered in connection with such railroads, railways, electric railroads,
trackless trolleys or steamships."
You have informed me that :
"A common carrier operating a Diesel-motored ship between points
within the Commonwealth has claimed to this department that it is not
subject to the foregoing section because, it asserts, its vessel is not a
'steamship' as it is propelled by Diesel motors."
You have asked my opinion upon the following question:
"Does the use of the word 'steamships' in the foregoing provision ex-
clude from its operation any vessel, although of the same size and gen-
eral character as one operated by steam and used for the same purposes
in the transportation of persons or property, if not operated by steam?"
I answer your question in the affirmative.
The words "steamer," "steamship" and "steam vessel," as ordinarily
used and as defined in the dictionaries, mean a vessel propelled by steam.
{Campbell v. Jimines, 27 N. Y. S. 351.)
In 1897, by 30 Stat. 96, Congress specifically defined the words "steam
vessel" as employed in what is now 33 U. S. C. A. § 155, a statute deafing
with navigation and navigable waters, as follows:
"The word 'steam vessel' shall include any vessel propelled by ma-
chinery."
134 P.D. 12.
Prior to the effective date of said United States statute the words
"steam vessel," as used in the statute then applicable to navigation, had
not been explicitly defined by Congress, and it was said in The Captain
Weber, 89 Fed. 957, that in the absence of such specific definition the
words were to be construed in their ordinary sense as applying only to a
vessel propelled by means of steam and did not include within their mean-
ing a sloop propelled by machinery operated by a naphtha or gasoline
engine.
G. L. (Ter. Ed.) c. 159, § 12 (a), sets forth a detailed list of vehicles
of transportation over which, when serving the public under the manage-
ment of common carriers, the Department of Public Utilities is to have
jurisdiction and control. No type of vessel, except "steamships," is in-
cluded therein. There is nothing in the statute to indicate that the word
"steamships" is used with other than its ordinary meaning, that of ves-
sels propelled by steam. Other types of vessels omitted by the Legisla-
ture from the specified means of transportation set forth in the statute
cannot be included within the scope of the enactment by way of inter-
pretation.
If it is desired to have additional types of vessels brought within the
sweep of section 12 (a), resort should be had to the Legislature to supply
the omission.
Very truly yours,
Robert T. Bu.shnell, Attorney General.
Savings Bank Life Insurance — Prohibition on Loans to Trustee of Savings
Bank From Funds of Insurance Department.
Feb. 15, 1944.
Mr. JuDD Dewey, Deputy Commissioner, Savings Bank Life Insurance.
Dear Sir: — You have asked my opinion upon the following question:
"May a Massachusetts savings bank, conducting a life insurance de-
partment under the provisions of chapter 178 of the General Laws, lend
the funds of its insurance department to a trustee of the bank who is not
a member of the Board of Investment of the bank nor an officer of the
bank except so far as he is an officer by virtue of being a trustee?"
I answer your question in the negative.
G. L. (Ter. Ed.) c. 178, § 9, provides that the funds of the insurance
department of a savings bank
"shall be invested in the same classes of securities and in the same manner
in which the deposits of the savings department are required by law to
be invested. ..."
G. L. (Ter. Ed.) c. 168, § 29, with relation to savings banks, provides:
"No president, treasurer, member of a board of investment, or officer
of such corporation charged with the duty of investing its funds, shall
borrow or use any portion thereof, be surety for loans to others or, directly
or indirectly, whether acting individually or as trustee holding property
in ti'ust for another person, be an obligor for money borrowed of the
corporation; ..."
A trustee of a savings bank is an officer of such institution, being specifi-
cally designated as an officer by G. L. (Ter. Ed.) c. 168, § 13, as amended.
P.D. 12. 135
The board of investment of a savings bank shall consist of three mem-
bers and is chosen from the trustees by the latter's election and holds
office during the pleasure of the trustees (G. L. (Ter. Ed.) c. 1G8, § 14).
The trustees of a savings bank are its governing board and they are
held to the same duty with respect to its deposit.s as ordinary trustees of
a direct trust (Greenfield Savings Bank v. Ahercrombie, 211 Mass. 252, 256).
"The law of this Commonwealth is settled . . . that trustees of sav-
ings banks are subject to the same fiduciary obligations as technical trus-
tees of specific trust propertv." Cosmopolitan Trust Co. v. Mitchell, 242
Mass. 95, 120.
It is a basic principle of law concerning the obligations of a trustee that
his duty is wholly to his trust. Any act of his which apfX'ars to be in his
own interest instead of that of the trust estate may constitute a breach of
his duty. So that it has been held that he may not .sell trust property
to himself personally (Morse v. Hill, 136 Mass. 60) or gain any direct
or indirect advantage to himself by its purchase or sale (Hayes v. Hall,
188 Mass. 510) or borrow for himself or his family or associates any of
the trust funds (Pierce v. Dahlgren, 300 Fed. 268; Carrier v. Carrier, 226
N. Y. 114; In re Estate of Skinner, 215 Iowa 1021 ; Matter of Randolph, 134
N. Y. Supp. 1117, 207 N. Y. 685. Scott on Trusts, Vol. 2, c. 7, § 170,
171; Loring, Trustee's Handbook (1940) § 18).
Concerning savings banks, our Supreme Judicial Court has said that
they
"approximate somewhat to the character of charitable institutions. They
are designed to help the poorer members of the community to help them-
selves by giving them an opportunity to make their small savings pro-
ductive. . . Accordingly definite and rigid provisions have been made
by our statutes for the administration of savings banks ... It is not
without significance that in this statute (St. 1894, c. 317) as in former
and subsequent ones, the governing board of officers is given the name of
trustees. Careful provisions are prescribed also for the investment of the
deposits that may be received; and it is manifest upon the most cursory
reading that the dominant purpose of the Legislature has been to provide
in this way for the safety of the money entrusted to savings banks and to
hold the officers entrusted therewith to a strict accountability. ..."
Greenfield Savings Bank v. Ahercrombie, 211 Mass. 252, 255.
G. L. (Ter. Ed.) c. 168, § 15, provides for meetings of the trustees,
for the preparation and keeping of a record of the condition of the savings
bank in which they serve, for the submission to them at each regular
meeting by the "board of investment," which has the duty of approving
all loans (c. 168, § 16) and passing upon and reporting the value of prem-
ises offered to secure mortgage loans (G. L. (Ter. Ed.) c. 168, § 54, clause
First, as amended) of a "detailed written .statement of all loans made
by the corporation ..."
Section 17 of said chapter 168 provides for a thorough examination
and audit of the securities and other assets of a bank by an auditing com-
mittee of the trustees, with a detailed report by the committee to be
read at a meeting of the trustees.
Of these provisions the Supreme Judicial Court has said :
". . . these statutes are mandatory and not merely directory. They
are part of a series of careful provisions made to secure the interests of
136 P.D. 12.
depositors and to make it certain that the conduct of trustees in making
loans upon mortgages should be not only honest and careful, but mani-
festly so, done with the concurrence of other officers, and spread upon
the records of the corporation." Greenfield v. Ahercromhie, 211 Mass.
252, 258.
Since the trustees are the governing body of a savings bank it is plain
that in the discharge of their duties as fiduciaries they must use diligence
and exercise reasonable control and supervision of the affairs of the bank
(see Cosmopolitan Trust Co. v. Mitchell, 242 Mass. 95, 119) and if, upon
the report made to them by the investment committee or auditing com-
mittee or otherwise, they detect the presence of a loan which is not suffi-
ciently secured or is otherwise unsafe, they must make their opinion
known under their general power of governance, require the loan to be
further secured or to be called through the investment committee or
other appropriate officers.
Inasmuch as trustees have, by reason of their offices, these duties with
relation to the bank's investments, they would appear to be officers of
a savings bank "charged with the duty of investing its funds" within
the meaning of the quoted words as used in said section 29. Consequently
they are prohibited from borrowing the funds of the bank.
There is no distinction in regard to the fiduciary relationship of the
trustees to the funds in the regular savings department of a bank and
those placed and accumulated in its insurance department. Their duties
in relation to investments of such funds are the same and the prohibition
upon their use of funds accumulated for the benefit of insureds is the
same as that with respect to funds accumulated for the benefit of de-
positors.
Since the members of the investment committee of a savings bank are
chosen by the trustees and are removable by them at pleasure, the trustees
have a mode of effectual control over investments which the committee
may make. Moreover, under the method of constituting the board of
investment, a trustee who is not presently a member thereof may at a
later date be placed thereon, and, if already a borrower, would be so situ-
ated as to pass in the first instance upon the soundness of his own loan or
the propriety of a renewal, a power not in keeping with the functions of
a fiduciary.
In view of the general principles of law which apply to the use of trust
funds by trustees, for their own benefit, it would not be reasonable to
interpret the phraseology of said section 29 as indicating a legislative
intent to free trustees of savings banks from the prevailing salutary rule
which prohibits trustees from borrowing at their pleasure from trust funds
for their own personal use and benefit.
Very truly yours,
Robert T. Bushnell, Attorney General.
^'
Public Health — Slaughtering of A nimals whose Meat is not for Human
Consumption — Requirement for Presence of Inspector.
Feb. 15, 1944.
Dr. Vlado a. Getting, Commissioner of Public Health.
Dear Sir: — You have asked two questions relative to the slaughter-
ing of animals, such as horses, whose meat is not to be used for human
consumption but for consumption by dogs.
P.D. 12. 137
Your first question is: Whether "persons licensed under G. L., o. HI,
§ 151, must have the carcasses inspected at the time of slaughter if the
meat is not to be used for human food."
Your second question reads: May "persons slaughtering in an estab-
lishment licensed under section 119 of chapter 94 kill animals, the meat
of which is to be used for other than human food, without hMving the car-
cass inspected as required by section 126 of chapter 94 as aniendefl?"
I answ-er your first question in the affirmative and your second question
in the negative.
G. L. (Ter. Ed.) c. Ill, § 151, as amended, requires a license, called
in the section "written consent and permission," before one may "occupy
or use a building for carrying on the business of slaughtering ... or for
a melting or rendering establishment, . . ." G. L. (Ter. Ed.) c. 94,
§§ 118 and 119, as amended, require a license not to occupy a building
for slaughtering but to "carry on the business of slaughtering" animals,
the meat of which is to be used for food. See Bushicatj-W kiting Co. v.
Mayor of Somerville, 308 Mass. 148, 150.
The word "food," as used in said sections 118 and 119, is not defined in
the statutes. It is often correctly used to describe articles intended for con-
sumption bv both men and animals. The including in said sections 118
and 119 by'the amendment thereof, through St. 1943, c. 332, §§ 1 and 2,
of horses and mules in addition to neat cattle, sheep and swine indicates
a legislative intent to include, within the business of slaughtering, the
killing of animals whose meat may be used for animals as well as men.
It is true that section 1 of said chapter 94 defines "food" as employed
in certain sections of the chapter other than sections 118 and 119 as "all
articles, . . . used for food ... by man or animal." The omission of
the word "food" as used in sections 118 and 119 from the scope of the
definition does not necessarily indicate an intent that such word when
found in those sections shall by implication be limited to articles used for
food by man only.
The rule of statutory construction that express mention of one thing
is implied exclusion of another is not conclusive of legislative intent, but
is to be considered with regard to the purpose of the entire legislation of
which the subject matter to which it relates is a part. Simmons v. County
of Suffolk, 230 Mass. 236.
The obvious purpose of chapter 94 is the protection of the pubhc health.
See Commonwealth v. Moore, 214 Mass. 19. Such protection could not
be adequately provided if animals slaughtered ostensibly for food for
beasts might be diverted to and become part of supplies of food intended
for human consumption. Such possibility is lessened if all annuals, the
carcasses of which are intended to be used as food for man or beast, are
slaughtered in the presence of an inspector.
G. L. (Ter. Ed.) c. 94, § 126, provides that an inspector of slaughtering
"shall be present at each licensed slaughter house or establishment upon
each day when slaughtering is allowed by law to be carried on therein
and shall carefully examine the carcasses of all animals at the time of
slaughter."
I am of the opinion that the requirement of said section 126 is for the
attendance of an inspector of slaughtering in every slaughtering estab-
lishment, whether the meat of the beasts killed therein is to be used for
the consumption of men or animals.
Very truly yours,
Robert T. Bushnell, Attorney General.
138 P.D. 12.
Civil Service — Police — Military Substitutes — Appointments to Fill Per-
manent Vacancies.
Feb. 21, 1944.
Mr. Ulysses J. Lupien, Director of Civil Service.
Dear Sir: — I am in receipt of your request for an opinion as to the
appointment to permanent vacancies in the reserve police force in the
City of Newton of persons now serving as mihtary substitute patrolmen.
Attached to your request is a copy of a letter from the Mayor of New-
ton, stating, in substance, that at the time of the appointment of the
"military substitutes" these men were on the eligible list for appoint-
ment to the reserve force, in which there was no vacancy at the time of
said appointment.
Your specific question is whether or not under present law men appointed
from the civil service list as military substitute patrohnen in the City of
Newton may be appointed to permanent vacancies in the reserve police
force.
I do not find either in your letter or in the letter of the Mayor any factual
references to the cause of the vacancies which it is desired to fill. The
facts as to the cause of such vacancies are of the utmost importance in
answering the question. If the permanent vacancies are "caused by" or
"related to the absence of the incumbent in . . . military or naval serv-
ice," the answer to your question is emphatically in the negative.
St. 1941, c. 708, § 2, from which the quoted phrases are taken, is obvi-
ously intended to give the utmost protection in civil service status to
members of the armed forces. It was intended that upon return to civilian
life incumbents of these positions who had temporarily left them to serve
in the armed forces would find their jobs waiting for them when they
returned. An honorably discharged serviceman is not to be met with a
fait accompli that the job had been filled by permanent appointment while
he was away. Vacancies "caused hy^' or "related to" the absence of the
incumbent in said military or naval service may not be permanently filled.
The express terms of the statute enacted by the Legislature accord, in
this instance, with the principles of justice and fair play. The phraseology
adopted by the Legislature in referring to vacancies caused by or related
to the absence of the incumbent in military service is broad enough, in
my opinion, to prevent any quibbling as to the precise meaning of single
words or phrases lifted out of the context of the statute, as well as to compel
the resolving of any doubt in particular cases in favor of holding the
position for the incumbent who has left it to enter the military or naval
service.
If, however, it can clearly and unequivocally be found that the vacancies
sought to be filled are not caused by or related to the absence of the in-
cumbent in the military or naval service, then, in my opinion, the answer
to your question is in the affirmative.
St. 1941, c. 708, § 2, in its applicable part, provides:
" . . . In the event that a permanent vacancy not caused by or related
to the absence of the incumbent in said military or naval service occurs
in a position of the same or similar rank or grade as that then occupied by
a military substitute, said military substitute may be appointed to such
permanent vacancy."
Civil Service Rule 4 reads as follows:
P.D. 12. 139
"Class 15. Police of other cities (than Boston).
(a) The regular and reserve police forces, and all persons doing perma-
nent police duty,"
thus making the positions on regular and reserve police forces the same,
or of similar rank or grade, within the meaning of the statute.
Very truly yours,
RoBEFiT T. BusHNELL, Attorney General.
State Armories — I'se for Public Purposes and for Places of Assembly.
March 3, 1944.
Brig. Gen. William J. Keville, The Adjutant General.
Dear Sir: — You have asked my opinion as to the effect of G. L.
(Ter. Ed.) c. 143, as amended, upon the use, rental or authorization for
use of state armories for public purposes and for places of assembly.
G. L. (Ter. Ed.) c. 33, § 41, as amended, provides:
(1) That armories shall be used by the organized militia "for the mili-
tary purposes or purposes incidental thereto designated by the commander-
in-chief."
(2) It also provides that armories may be used for certain non-military
purposes, subject to rules and regulations promulgated by the Commander
in Chief, by military units stationed therein and for drill purposes by drill
teams, bands or drum corps of organizations of veterans.
(3) It further provides for the use of armories for various designated
non-military public purposes upon the payment of compensation in the
nature of rent, on application approved by The Adjutant General in ac-
cordance with terms and conditions prescribed bv the Commander in
Chief.
When used for many of the authorized non-military purposes that part
of an armory so used would be a "place of assembly" as the quoted words
are defined in G. L. (Ter. Ed.) c. 143, § 1, as amended.
The provisions of sections 3 to 3G of said chapter 143, as amended, are
by section 3H of said chapter made applicable to "state buildings which
are used in whole or in part as places of assembly."
Said sections 3 to 3G contain provisions relative to the inspection,
regulation and licenses for such buildings. It is provided that the Com-
missioner of PubHc Safety shall make rules and regulations relating to the
use of places of assembly as well as to their construction and other desig-
nated matters concerning them. Furthermore, municipaUties are per-
mitted under certain conditions to make further restrictions of such use,
and the officers of a municipahty charged with the duty of issuing permits
or licenses for the use of places of assembly are authorized to determine
the maximum number of persons who may be permitted in such places.
By force of sections 3 and 3H all such rules, regulations and determina-
tions concerning places of assembly are applicable to those portions of
armories which are used as places of assembly.
In so far, then, as that portion of an armory which may be used as such
a place of assembly does not comply with the said rules, regulations and
determinations, it may not lawfully be employed for the purposes of a
place of assembly. Accordingly, any authorization by the military au-
thorities of its use by others for any non-military purpose which will
include its employment as a place of assembly, whether such authoriza-
140 P.D. 12.
tion be by way of permission to use for a consideration in the nature of a
rental or otherwise, would be contrary to the intent of the statute, would
directly aid in a violation of the same, and would constitute an unlawful
exercise of the powers of such military authorities.
The specific provision by the Legislature in said sections 3 and 3H for
the application of the terms of G. L. (Ter. Ed.) c. 143, §§ 3 to 3G, to state
buildings which are used in whole or in part as places of assembly, dis-
tinguishes the principles of law now applicable to the use of armories for
non-military purposes from those which governed such use under various
statutes before the enactment of the said specific provision. (C/. opinion
of the Attorney General to The Adjutant General, March 30, 1933, At-
torney General's Report (1933) p. 47).
Very truly yours,
Robert T. Bushnell, Attorney General.
Towns — Appropriations for Memorial Hall for Veterans.
March 4, 1944.
Miss Adelaide L. Fitzgerald, Department Secretory, American Legion
Auxiliary.
Dear Madam: — You have asked me if there is any law in Massachu-
setts which prohibits a town from raising or appropriating money to erect
and maintain a memorial hall for veterans in which various veteran and
civic organizations may have headquarters. There is no such prohibition
in our statutes. On the contrary, by the provisions of, G. L. (Ter. Ed.)
c. 40, the erection of such a memorial hall is set forth as a public purpose
for which towns may appropriate money. Section 5 (12) of said chapter
provides for the erection and equipping of such hall and, by implication,
for its maintenance.
The phraseology of the statute in this respect is as follows:
"A town may at any town meeting appropriate money for the following
purposes: . . . (12) . . . For . . . acquiring land by purchase or by
eminent domain under chapter seventy-nine, purchasing, erecting, equip-
ping or dedicating buildings, . . . for the purpose of properly com-
memorating the services and sacrifices of persons who served as" veterans
of wars, including World War I.
G. L. (Ter. Ed.) c. 40, § 9, as amended, authorizes towns to procure
headquarters for posts and chapters of the American Legion and certain
other designated veterans' organizations by leasing buildings for periods
of five years.
"A . . . town may also . . . appropriate money for the purpose of
providing suitable headquarters for a post or posts of any incorporated
organization of veterans who served in the military or naval service of the
United States in time of war or insurrection, in addition to those above
specified ..." upon petition by 5 per cent of the voters.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 141
Commissioner of Conservation — Rules Limiting Speed of Motor Vehicles
in State Forests and Parks — Lark of Authority.
March 8, 1944.
Hon. Raymond J. Kenney, Commissioner of Conservation.
Dear Sir: — You have asked my opinion as to whether the Commis-
sioner of Conservation
"has the right to prescribe rules and regulations limiting the speed at
which motor vehicles may be operated under the following circumstances:
(1) On roads within the state forests and state parks which have been
built by the Commonwealth for the proper administration of the state
forests and state parks;
(2) On roads within such areas which are town roads but the care and
maintenance of which rests with the Department of Conservation."
I answer each phase of your question in the negative.
The IvCgislature, by the enactment of G. L. (Ter. Ed.) c. 90, §§ 17 and
18, has established speed regulations applicable to all ways within the
Commonwealth to which the public has a right of access. By the pro-
visions of these two sections the regulation of the speed of motor vehicles
on such ways has been completely covered.
Section 17 sets forth general speed regulations upon such ways applicable
throughout the Commonwealth.
Section 18 provides for special speed regulations which, with relation to
those ways for which they may be made, may stand as exceptions to the
general speed regulations contained in said section. These special speed
regulations may, under the provisions of section 18, be made only under
certain specified conditions by city councils, selectmen or park commis-
sioners on ways within their respective control, and by the Metropolitan
District Commission with relation to lands, roadways and parkways under
its care and control.
No such authority to make special regulations concerning speed upon
ways to which the public has access in state forests or state parks, or upon
to\vn ways cared for and maintained by the Department of Conservation,
has been granted to the said department.
The provisions of G. L. (Ter. Ed.) c. 132, § 34, which authorize the
Commissioner of Conservation to make rules and regulations relative to
"hunting and fishing or other uses of any . . . land" in state forests
"provided that such rules and regulations shall be consistent with all laws
in relation to the protection of fish, birds and quadrupeds," must be read
in connection with said G. L. (Ter. Ed.) c. 90, §§ 17 and 18, in order to
form an harmonious whole of statutory law, and so read do not authorize
the said Commissioner to make rules relative to the speed of motor vehicles
in state forests.
In like manner the provisions of G. L. (Tor. Ed.) c. 132A, § 7, which
authorize the Commissioner of Conservation to make rules for "the
government and use of all property under the control of the division'
of fisheries and game, including rules for parking fees, when read in con-
nection with said sections 17 and 18, do not authorize the Commissioner
of Conservation to make rules relating to the speed of motor vehicles in
state parks.
It is to be noted that G. L. (Ter. Ed.) c. 90, § 16, provides:
142 P.D. 12.
"No person shall operate a motor vehicle, ... in or over any way,
. . . which motor vehicles are prohibited from using, provided notice of
such prohibition is conspicuously posted at the entrance to such way."
By posting in accordance with the provisions of said section 16 motor
vehicles may be excluded from those roads in state forests and state parks
which are built only "for the proper administration of the state forests
and state parks," as the quoted words are used in your question, and
which are not ways of such a character as to be intended for the use of the
public.
Very truly yours,
Robert T. Bushnj:ll, Attorney General.
Milk Control Board — Authority to Establish Minimum Price for Foreign
Milk Purchased in the Commonwealth.
March 8, 1944.
Milk Control Board.
Gentlemen : — You have asked my opinion upon the following ques-
tion:
1. May this Board, in the absence of applicable federal regulation,
enforce the provisions of the Massachusetts Milk Control Act (G. L.
c. 94A, as inserted by St. 1941, c. 691, and as amended by St. 1943, cc. 147,
164 and 445), and of official orders lawfully issued by the Board there-
under (and particularly of its orders fixing the minimum prices which
milk dealers are required to pay to producers for milk purchased or re-
ceived by them from producers and regulating the terms and conditions
of such purchase or receipt of milk and payment therefor), when
(a) Title to such milk is taken by the milk dealer at a point within the
Commonwealth, or when
(b) The milk dealer, being a co-operative corporation, and having or
taking possession of the milk, receives such milk into its plant and accepts
full responsibility therefor together with full right to control the sale, use
and disposition thereof, at a point within this Commonwealth.
I answer both phases of your question in the affirmative.
The Milk Control Act, St. 1934, c. 376, as amended, was intended, as
has been said by the Supreme Judicial Court, "to control in its entirety
the business of selling milk within the Commonwealth." The act of 1934
itself states in section 15 (G) that its provisions apply to "all" milk
handled within the Commonwealth by a dealer licensed or required to be
licensed. (Milk Control Board v. Gosselin's Dairy, Inc., 301 Mass. 174,
179). No distinction is made between milk purchased within the Com-
monwealth from producers resident in other states and milk purchased
here from producers resident in Massachusetts.
The original Milk Control Act of 1934, as amended from time to time,
was finally embodied in G. L. (Ter. Ed.) c. 94A. As one of the means
for carrying out the purpose of the enactment which was to provide for a
supply of wholesome milk for the inhabitants of the Commonwealth under
proper economic conditions, provision was made for the fixing by the
Milk Control Board of minimum prices for the purchase by dealers of
milk from producers. The obvious purpose of such provision was to
enable producers, by the receipt of adequate prices, to maintain proper
standards of sanitation in deafing with the commodity. (G. L. (Ter. Ed.)
c. 94A, §§ 11, 12).
It is plain that the establishment of such minimum prices tends to
P.D. 12. 143
accomplish the purpose for which it was authorized as well when applied
to milk purchased in Massachusetts from non-resident producers as when
apphed to that purchased from resident producers. Moreover, tiie l^egis-
lature has recognized this, for, by said G. L. (Ter. Jul.) c. 94 A, § 2 (1), it
has empowered the Milk Control Board, among other things,
". . . to supervise and regulate the milk industry of the common-
wealth, including the production, purchase, receipt, sale, payment and
distribution of milk within the commonwealth and the control of un-
reasonable and burdensome surplus of milk in any market ronihtg from
either within or without the commoniuealth."
By the provisions of section 12 of said chapter, with relation to the
fixing of minimum prices upcm petition of producers, the Milk Control
Board is authorized to fix minimum prices "irrespective of where such
milk is produced."
It would appear, therefore, that the provisions of said ciiapter 94A
authorize the Milk Control Board to fix minimum prices for tlie purchase
of milk by a dealer from a producer within the Commonwealth, irrespec-
tive of whether such milk was produced within or without the state.
It has been determined by the Supreme Court of the United States
that the power of a state to fix the price of milk is within its regulating
authority. Ncbhia v. New York, 291 U. S. 502, 587; I'nitcd States v.
Rock Royal Co-operative, 307 U. S. 538, 570.
It has also been determined by that court that a state may not pro-
hibit the sale of wholesome milk imported from another state because the
extrastate purchase price was below the prescribed minimum, for to do
so would unduly burden and interfere with interstate commerce in viola-
tion of U. S. Const. Art. I, § 8. Baldwin v. Seelig, 294 U. S. 511. A
regulatory law of the Commonwealth of Pennsylvania, which included
fixing of minimum prices, applied, in the absence of federal legislation, to
milk purchased in Pennsylvania for shipment into New York, was held
not in violation of said Art. I, § 8, inasmuch as such regulation prior to
the actual entrance of the milk into interstate commerce did not so di-
rectly burden such commerce as to interfere with it in a manner forbidden
to a state. Milk Control Board v. Eisenberg Farm Products, 806 U. S. 346.
Whether a state may regulate the price to be paid by a dealer to a pro-
ducer of milk brought into a state in interstate commerce when title or
possession thereof passes to a milk dealer in the state where it is received,
payment therefore being made by the dealer in such state and the milk
being used wholly for resale in such state, has not been passed upon by
the Supreme Court.
The Massachusetts Milk Control Act, however, is not directed at the
control or regulation of foreign commerce. Its provisions concerning
minimum prices are directly regulative of the JViassachusetts dealer and
not of the producer. Their application, through their compulsion upon
the dealer, is uniform as concerns their effect upon producers within and
without the state aUke. The provisions of the law become applicable
only after the commodity has reached its final destination. Consequently
the transportation of the commodity in interstate commerce is not bur-
dened or affected in any but such an incidental manner as not to be
forbidden by the Constitution.
The subject matter of minimum prices for milk in Massachusetts has
not been withdrawn from the scope of state legislation and control by
action of the Federal Government under applicable United States statutes.
144 P.D. 12.
It therefore appears that when milk produced in another state is ac-
tually purchased within Massachusetts or, in the case of a co-operative
association, becomes the property of the Association as distinguished from
the individual producer, in Massachusetts the establishment and enforce-
ment of a minimum price to be paid in this Commonwealth by the dealer
to the producer does not as directly affect interstate commerce as to be
violative of Article I, section 8 of the United States Constitution.
In view of my answer to this question, no answer is required to the
second question set forth in your letter.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Office of Schoolhouse Custodian in Boston School Depart-
ment Governed by G. L. (Ter. Ed.) c. 36.
March 16, 1944.
Civil Service Commission.
Dear Sirs : — You have asked my opinion as to whether the office of
schoolhouse custodian in the Boston School Department is governed by
the Civil Service Law, G. L. (Ter. Ed.) c. 31, as amended, so that appoint-
ment thereto must be made in accordance with the provisions of that
law. I answer your question in the affirmative.
The office of the schoolhouse custodian in Boston was created by the
school committee. That body is the appointing and removing authority.
The school committee derives its power in these respects by virtue of
St. 1906, c. 318, as amended by St. 1926, c. 140, and by St. 1932, c. 231,
which, in its applicable parts, reads:
"The school committee of the city of Boston shall choose a secretary,
. . . and a business manager, who shall hold their respective offices until
removed by the committee for cause. Said committee may also choose,
and may for cause remove, an acting business manager . . . The com-
mittee may also elect and remove such other subordinate officers not specifi-
cally provided for by law as they may deem expedient."
The "Rules and Regulations of the Pubfic Schools" adopted by the
said school committee provide in chapter I, section 2,
"The officers of the School Committee shall consist of a Chairman,
secretary, treasurer of the corporation, business manager, schoolhouse
custodian, superintendent, and not more than six assistant superintend-
ents."
Section 4 provides:
"The secretary, business manager, and schoolhouse custodian, when
duly elected by the School Committee, shall have tenure of office during
good behavior and efficiency."
Chapter VII, section 125, provides in part:
"The schoolhouse custodian shall be the executive officer of the School
Committee in all matters relating to the care and custody of land and
buildings used for school purposes, and the administration building. ..."
Section 127 authorizes the schoolhouse custodian, subject to the ap-
proval of the school committee, to appoint, transfer and remove custo-
dians, and to make temporary appointments when necessary, without
applying to the School Committee.
P.D. 12. 145
Rule 4 of the Civil Service Rules provides:
"All persons performing duties ... in any of the following offices
... or performing duties or rendering service similar to that of any such
offices . . . under whatever designation, . . . are subject to the ('ivil
Service Law and Rules, and the selection of persons to fill such appoin-
tive offices or positions in the government of \hr C'ommonweaitfi and of
the several cities thereof is subject to the Civil Service Law and Rules . . .
Class 1. Superintendents, . . .
Class 24, Janitors, custodians, and persons employed in the care of
schools, or other public buildings, . . ."
By reason of the duties provided by the foregoing rules for the office of
schoolhouse custodian, such office would appear to be brought within
either Class 1 or Class 24, more probabl}' Class L The matter of the pre-
cise classification is peculiarly within the discretion of the officers of the
Division of Civil Service. (Attorney General's Report, 1940, p. 44).
It is not provided by said St. 1906, c. 318, as amended, that the school
committee may remove the schoolhouse custodian at pleasure. The office
is not one, the appointment to which is subject to the confirmation of a
city council. The incumbent of the office is not the head of a principal
department of a city nor does he come within any of the classes of officers
which are withdrawn from the sweep of the Civil Service Rules b}' the
terms of G. L. (Ter. Ed.) c. 31, § 5.
It has been repeatedly held in former opinions of Attorneys General
that appointive positions in the public service are to be presumed to be
under Civil Service unless they are specifically exempted or it appears
from the context of the statute creating the offices or in provisions for
the appointment and removal of incumbents that it was the intent of the
Legislature that they should not be under Civil Service. (See Reports
of the Attorney General, 1930, p. 115; 1932, p. 99.)
Phraseology such as "may remove them at pleasure" or "shall serve
at the pleasure of the board," or similar expressions with respect to in-
cumbents of positions have been construed as evidence of a legislative
intent that Civil Service laws should not cover such positions. (See .VI
Op. Atty. Gen. 155, 334, 335; VII Op. Atty. Gen. 719; VIII Op. Atty.
Gen. 643; Reports of the Attorney General, 1932, p. 46; 1936, p. 34).
Phrases such as "may appoint and remove such employees as the work
of his department may require" have been held not to indicate such in-
tent and therefore do not have the effect of removing an office or position
or the appointments thereto from the provisions of the Civil Service Law
and Rules. (See Reports of the Attorney General, 1931, p. 56; 1932,
p. 99).
I find nothing in the language of said St. 1906, c. 318, as amended,
indicating a legislative intent to remove from the effect of the Civil Service
Law and Rules the "subordinate officers" whom the school committee
is authorized "to elect and remove." The fact that such a subordinate
officer of the school committee as the one herein considered receives his
appointment from an appointing authority, which consists of several
members, does not remove the position from the scope of the Civil Serv-
ice Law and Rules.
Very truly yours.
Robert T. Bushnell, Attorney General.
14G P.D. 12.
Department of Public Utilities — Operation of Civil Aircraft Service in the
Commonwealth — Extent of Authority.
March 20, 1944.
Hon. Carroll L. Meins, Chairman, Department of Public ( tilities.
Dear Sir : — You have requested my opinion upon the following ques-
tions relating to the transportation of persons or property by aircraft:
1. Has the Department of Pubhc Utilities either by implication from
St. 1941, c. 713, or G. L. (Ter. Ed.) c. 159, § 12, any power to consider an
application for a "certificate of public convenience and necessity or permit
or other requisite authority authorizing the operation of civil aircraft
service within this Commonwealth"?
2. Has any common carrier by aircraft the right to operate exclusively
between points in this commonwealth without any certificate of public
convenience or necessity or permit or other requisite authority, upon
filing a schedule of rates with this Department under said chapter 713
of the Acts of 1941?
I answer your first question in the negative and your second question
in the affirmative.
You have directed my attention particularly to G. L. (Ter. Ed.) c. 159,
§ 14A, which section was inserted in said chapter by St. 1941, c. 713.
This statute requires every common carrier by aircraft maintaining an
established service over regular scheduled routes for general public service
to publish and file with your department and keep open for pubHc inspec-
tion tariffs containing all its rates and charges for transportation of persons
or property, and all services in connection therewith, between points
within the Commonwealth. The Department of Public Utilities is au-
thorized to reject or suspend tariffs under the circumstances set forth in
the statute and, upon complaint of any person or upon its own motion
and after due notice and a hearing, may allow or disallow any filed or
existing rates and may alter or prescribe rates. All such carriers are
required to comply strictly with the tariffs filed under this section and
are prohibited from operating within the Commonwealth unless such
tariffs have been filed.
The statute is entitled "An Act authorizing the Department of Pubhc
Utilities to regulate rates for the transportation of persons or property
within the Commonwealth by common carriers by aircraft," and it is
to be noted both from the title and the context of the entire statute that
it concerns only the filing, publication and regulation of rates and charges
for the transportation of persons or property by aircraft and prohibits
such transportation until tariffs containing such rates and charges have
been filed.
There is no law in this Commonwealth similar to the Federal Civil
Aeronautics Act of 1938, as amended, which requires certificates of public
convenience and necessity for the transportation of persons and property
by aircraft.
You have also directed my attention to the provisions of G. L. (Ter.
Ed.) c. 159, § 12. This section provides that your department shall have
general supervision and regulation of, and jurisdiction and control over,
the public transportation services enumerated therein. Transportation by
aircraft is not included in said section, either directly or by necessary
imphcation, and therefore the section has no application to your problem.
P.D. 12. 147
Accordingly, a common carrier by aircraft can operate between points
in this Commonwealth without any certificate of public convenience or
necessity upon the filing with your department of tariffs containing all its
rates and charges, and is subject to the control of your department only
with relation to such rates and charges.
You have also requested my opinion upon the question of whether
your department has authority to permit a street railway company law-
fully operating between points within the Commonwealth to operate
helicopters or other aircraft between such points. For the reasons pre-
viously set forth, I answer this inquiry in the negative.
Very truly yours,
Robert T. Bushnell, Attorney General.
Fees of Clerks of District Courts for Issuing Waiver of Notice of Marriage.
March 20, 1944.
Hon. Henry F. Long, Commissioner of Corporations and Taxation.
Dear Sir: — In connection with the performance by the Director of
Accounts in your department of his duties in auditing the accounts of
clerks of court you have asked my opinion upon three questions relative
to the fees which may properly be charged by clerks of district courts for
issuing a waiver of notice of marriage.
Your first two questions read :
" (1) Should the fee charged for waivers of notice of marriage be one
dollar or two dollars, under chapter 345 of the Acts of 1939?
(2) If the contracting parties reside in different towns, is it necessary
to have a waiver in each town?"
G. L. (Ter. Ed.) c. 262, § 2, as amended by St. 1939, c. 345, provides:
"The fees of the clerks of district courts, in civil actions, shall be as
follows: . . .
All written copies, twenty-five cents per page.
Attesting copies, twenty-five cents per page. . . .
For waiver of notice of marriage, one dollar, ..."
The Legislature provided for the granting of a certificate for the waiver
of the statutory five daj^s' notice of marriage by G. L. (Ter. Ed.) c. 207,
§ 30, as amended, which reads:
"Upon application by both of the parties to an intended marriage, when
both parties are residents of the commonwealth or both parties are non-
residents, or upon application of the party residing within the common-
wealth when one of the parties is a resident and the other a non-resident,
a judge of probate or a justice of a district court, or a special judge of
probate and insolvency or special justice of a district court when holding
court, may, after hearing such evidence as is presented, grant a certificate
stating that in his opinion it is expedient that the intended marriage be
solemnized without delay. Upon presentation of such a certificate, or in
extraordinary or emergency cases when the death of either party is immi-
nent, upon the authoritative request of a minister, clergyman, priest,
rabbi or attending physician, the clerk or registrar of the town where the
notice of intention has been filed shall at once issue the certificate prescribed
in section twenty-eight."
148 P.D. 12.
Strictly speaking, there is but a single waiver of the statutory notice
required by said section 30. This may be allowed by a justice or a special
justice when holding court in a District Court and in the form of a certifi-
cate granted by the justice or special justice.
The "waiver of notice of marriage" to be issued by the clerk of a dis-
trict court referred to in said chapter 262, section 2, would appear to be
the "certificate" granted by the justice or special justice.
By section 20 of said chapter 207, as amended, a notice of intention of
marriage is required to be filed by the parties to the prospective wedding,
if living in different towns, with the clerk of each town in which one of
them lives. By section 28 of said chapter 207, as amended, it is provided
that the clerk of the town where such notice of intention has been filed
shall deliver a certificate of the filing of such notice on or after the fifth
day from such filing to the parties to be married. It is plain that if notices
have been filed with two clerks, each of them must be advised of the
waiver by a justice of the requirement that five days must intervene
between the filing of the notice of the intention and the issuing of the
certificate thereof.
It would seem that the "waiver of notice of marriage," referred to in
said G. L. (Ter. Ed.) c. 262, § 2, for which a clerk is to receive a fee of one
dollar and which is to be filed with a town clerk, must be taken to mean a
copy of the certificate of waiver granted by a justice. Since of necessity
two such waivers "of notice of marriage" must be furnished by a clerk of
a district court when the parties are required to file such a "waiver" with
two town clerks, it would appear to be within the intention of the Legisla-
ture, as expressed in the phraseology of said chapter 262, section 2, to
permit a clerk of a district court to charge a fee of one dollar for each of
such copies.
You have also asked me a third question concerning the extent of the
authority of the Judicial Council which was created by G. L. (Ter. Ed.)
c. 221, § 34A, over district courts with relation to the establishment of
fees.
From information furnished me bv the Chairman of the Administrative
Committee of District Courts, created by G. L. (Ter. Ed.) c. 218, § 43A,
it appears that it was this body which took up with the district courts the
matter of the fees which are the subject of your letter and that this body
made suggestions concerning the matter to the district courts and did
not make rules relating thereto. An answer to your third question would
therefore not appear to be appropriate.
Very truly yours,
Robert T. Bushnell, Attorney General.
Milk Control Board — Authority to Enforce Criminal Penalties for Viola-
tion of Rules — Licenses — Power to Grant and Revoke.
March 29, 1944.
Milk Control Board.
Gentlemen : — You have asked my opinion upon two questions rela-
tive to the powers of your Board.
Your first question reads :
"May this Board enforce criminal penalties under G. L., c. 94A, § 22
(as amended by St. 1943, c. 164) on account of violations of said chapter
376 of the Acts of 1934 as from time to time amended (or of orders of the
P.D. 12. 149
Milk Control Board made thereunder) which occurred prior to November
30, 1941?"
Violations of the provisions of St. 1934, c. 376, as amended, or of orders
of the Milk Control Board made thereunder, which occurred prior to
November 30, 1941, may be prosecuted by the Board and are subject to
such penalties as were applicable to said violations at the time of their
commission.
St. 1934, c. 376, an emergency measure, created a Milk Control Board.
Under this act and amendments thereto, which regulated the milk market-
ing industry in Massachusetts, the Board had authority to make and
enforce rules for the administration of the act, the violation of whicii was
punishable in the criminal courts by fine or imprisonment, as were viola-
tions of the provisions of the act itself.
St. 1941, c. 691, which became effective on November 30, 1941, amended
G. L. (Ter. Ed.) c. 20, and inserted in tlie General Laws a new chapter,
94 A, which created a new Milk Control Board and set up a new milk
control act regulating the milk marketing industry.
Section 3 of said chapter 691 is as follows:
"The provisions of chapter three hundred and seventy-six of the acts of
nineteen hundred and thirty-four, as amended by chapter three hundred
of the acts of nineteen hundred and thirty-six, chapter four hundred and
twenty-eight of the acts of nineteen hundred and thirty-seven, chapters
two hundred and seventy-nine and three hundred and thirty-four of the
acts of nineteen hundred and thirty-eight, chapters three hundred and
two and four hundred and thirteen of the acts of nineteen hundred and
thirty-nine, and chapter four hundred and eighteen of the acts of nineteen
hundred and forty-one, are hereby repealed; but, to the fullest extent
possible conformabl}' to its terms, this act shall be construed as a con-
tinuation of said provisions and not as a new enactment. All orders, rules
and regulations adopted and licenses issued bj^ the milk control board
under authority of said chapter three hundred and seventy-six, as amended,
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 pertinent pro-
visions of chapter ninety-four A of the General Laws, except that orders
issued pursuant to paragraph (C) of section fifteen of said chapter three
hundred and seventy-six shall not continue in force for more than six
months after .said effective date."
The most recent amendment of said St. 1934, c. 376, prior to the enact-
ment of St. 1941, c. 691, is set forth in St. 1941, c. 631, which amends
section 22 thereof, so that it reads as follows:
^^ Section 22. The board shall continue with all the duties and responsi-
biUties prescribed and imposed by this act until November thirtieth,
nineteen hundred and forty-one. On and after the date when this act
ceases to be operative any and all obhgation.s which shall have arisen prior
to such date or which may arise thereafter in coimection therewith, and
any violations which shall have occurred prior to such date, shall be
deemed not to be affected, terminated or waived by reason of the fact
that this act has ceased to be operative."
, St. 1941, c. 631, was not expressly repealed by St. 1941, c. 691, § 3, as
were all the other acts in amendment of said St. 1934, c. 376, nor can it
150 P.D. 12.
be said that said chapter 631 was repealed by necessary impHcation. It
follows, therefore, that the provisions of said section 22, as amended by
St. 1941, c. 631, to the effect that "on and after the date when this act
ceases to be operative any and all obligations which shall have arisen prior
to such date or which may arise thereafter in connection therewith, and
any violations which shall have occurred prior to such date, shall be
deemed not to be affected, terminated or waived by reason of the fact that
this act has ceased to be operative," are still in full force and effect. Conse-
quently criminal penalties may be enforced for violations of the provisions
of the old act and of orders, rules and regulations made under it which
occurred prior to the effective date of the new act.
Your second question reads:
"May this Board decline to grant or renew a license or suspend or
revoke a license already granted or grant a conditional or temporary
license under section 6 of said chapter 94A on account of acts, facts or
circumstances constituting reason for denial, suspension or revocation of
license (as set forth in said section 6) committed or permitted by the
applicant or licensee to occur or exist prior to November 30, 1941?"
The terms of G. L. (Ter. Ed.) c. 94A, § 6 (9) (St. 1941, c. 691, § 2) to
which you direct my attention, avithorize the Board to refuse a license or
to revoke a license if the licensee or certain other designated persons have
been responsible "for any act on account of which a license might be
denied, suspended or revoked pursuant to any provision of this chapter
or any similar provision of earlier laws^
Said chapter 94 A, § 6 (13), provides that the Board may decline to
grant or renew a license, or may suspend or revoke a license already
granted, if the applicant or licensee "has violated any provision of this
chapter or of similar -provisions of earlier laws, or of an order, rule or regu-
lation of the board made under authority thereof ..."
The foregoing provisions empower the Board to decline to grant or
renew a license or to suspend or revoke a license already granted if there
has been a violation of the provisions of St. 1934, c. 376, as amended, or
the rules or regulations made thereunder, such violations, by force of the
saving clauses of said St. 1941, c. 631, being deemed not to be affected,
terminated or waived by reason of the fact that said St. 1934, c. 376, has
ceased to be operative.
As I have already stated, St. 1941, c. 631, was not repealed, either ex-
pressly or by necessary implication, by St. 1941, c. 691. Consequently,
for the reasons set forth in my answer to your first question, I answer
your second question in the affirmative in so far as the acts, facts or cir-
cumstances referred to therein constituted violations of St. 1934, c. 376,
as amended, or of rules and regulations made thereunder.
Very truly yours,
Robert T. Bushnell, Attorney General.
Milk Control Board — "Massachusetts Producers" as Used in G. L. {Ter.
Ed.) c. 94 A, § 12 — Petitions for the Establishment of Minimum
■ Market Prices.
April 10, 1944.
Milk Control Board.
Gentlemen: — You have asked my opinion on two questions involving
the construction of G. L. (Ter. Ed.) c. 94A, § 12.
P.D. 12. 151
1. Your first question reads:
"Does the fifty-one per cent of 'the Massachusetts producers who . . .
dehvered milk for sale or (iistrihution as Huid milk in any market' include
all producers who delivered milk to a milk plant only a minor or iasignifi-
cant portion of the output of which is sold or distributed in such market?"
I answer your question in the affirmative. The provision of .said section
12 makes no distinction between producers who furnish a large propor-
tion of their milk to a particular market, either directly or through a
plant, and those who furnish a small proportion. The phraseology of the
section indicates that the necessary percentage of producers who nmst
sign a petition to render it effective is fifty-one per cent of all the Mas.sa-
chusetts producers who "dehvered milk for .sale or distribution" in the
market to which the petition relates, irrespective of whether such pro-
ducers delivered a large or small quantity or a large or small proportion
of their respective outputs for sale or distribution in such market.
2. Your second question, in paragraph (a), is as to whether the petition
of producers for the establishment of mininuun {)rices under section 12
should specify the market or markets for which such establishment is
asked or whether such petitions may ask the Board to establish minimum
prices "for all markets" in which the petitioners' milk is being distributed.
I am of the opinion that the petitions should specify the market or mar-
kets in which the establishment of minimum prices is desired.
Upon general principles petitiont'rs for action by administrative boards,
hke persons who seek remedies from judicial bodies, should state
with definiteness the relief sought. The petitioners for the establishment
of minimum prices in markets in which their milk is sold or distributed
should state plainly the markets as to which they desire the Board to act.
The petitioners may not properly, by an indefinite reference to markets
in general, require the Board to search out and ascertain m which particu-
lar markets the petitioners' milk is actually sold or distributed. There is
nothing in the language employed by the Legislature in said section 12
which indicates an intent that the petitioners should not specify the par-
ticular market or markets as to which they desire the Board to establish
minimum prices or that they might place upon the Board the duty of
finding out just what markets received the petitioners' milk.
My answer to paragraph (a) of your second question makes an answer
to paragraph (6) unnecessary.
Very truly yours,
Robert T. Bushnell, Attorney General.
Board of Registration in Medicine — Graduate of Unapproved Afedical
School — Right to Take Examination for Registration .
April 12, 1944.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam : — On behalf of the Board of Registration in Medicine
you have asked my opinion upon the following questions:
The first question is:
"1. Can the graduate of a medical school, which was not approved at
the time he was graduated, ever take the examination for registration,
whether or not the medical school becomes approved at a later date?"
152 P.D. 12.
I assume that by the words "becomes approved at a later date" you
refer to an approval given by the Approving Authority and not to one
resulting from a decision of a justice of the Superior Court upon review
of a refusal to approve by such Authority. Upon this assumption, I advise
you that a graduate of a medical school which has not been approved at
the time of his graduation may not take the examination for registration
upon the subsequent approval by the Authority designated under the
provisions of G. L. (Ter. Ed.) c. 112, § 2, of the school from which he
previously was graduated.
In the enactment of the appUcable provisions of said section 2, the in-
tent of the Legislature was to make sure that only persons who had studied
medicine in a school which was capable of giving them adequate instruc-
tion might be registered as qualified physicians. Whether a school is in
fact capable of giving such adequate instruction has, in the first instance,
been left by the Legislature to the determination of the Approving Author-
ity designated in said section 2.
If it does not appear, by the granting of such approval, that a school
was capable of giving adequate instruction at the time when an applicant
was a pupil therein, a subsequent approval of the school would have no
tendency to show that during a prior period when the apphcant studied
in the school it was then capable of giving him adequate instruction, so
that he could be regarded as properly qualified to take the examination
for registration.
The second question is:
"2. Would the answer to the above question be influenced by the fact
that the said medical school asked for approval before said graduation? "
I answer this question in the negative. The sole test prescribed by the
Legislature of the adequacy of instruction in a medical school is approval
by the designated Authority. Such approval when given speaks only as
of the date of its determination. It cannot be regarded as an approval of
the school under conditions which existed in the past, and which may
have changed for the better before consideration and determination by
the Authority.
The third question is:
"3. Would the answer to the first question be influenced by the fact
that the school did not ask for approval until after said graduation?"
I answer this question in the negative for reasons which I have set forth
in my answer to the second question.
The fourth question is :
"4. Even though the decision of the Approving Authority is withheld
during the appeal to the courts, would the Board of Registration in Medi-
cine have the right to deny a candidate the privilege of examination
because his school was unapproved when he graduated?"
I assume that the "privilege of examination" to which you refer is a
privilege which it is desired to exercise prior to the decision of a justice
of the Superior Court upon review of a refusal by the Approving Author-
ity to approve a medical school. Upon this assumption I answer this
question in the affirmative.
Although said section 2 provides that:
"Upon the filing of such a petition (a petition to reverse or revise a
decision of the Approving Authority adverse to the approval of a medical
P.D. 12. 153
school) . . . then the said decision of the approving authority shall not
become effective until a final decree affirming said decision is entered . . ."
The fact remains that the school from which the candidate was graduated
is an unapproved school and no graduate of an unapproved school is per-
mitted by the terms of said section 2 to take an examination for regis-
tration as a qualified physician.
The answer to the fourth question makes it unnecessary to answer your
fifth question.
Very truly yours,
Robert T. Bushnell, Attorney General.
Approving Aidhority for Colleges and Medical Schools — Applications for
Approval — Denials of Approval— Procedure with Relation to Grant-
ing Approval.
Aphil 14, 1944.
Mrs. Hazel G. Olivek, Director of Registration.
Dear Madam: — On behalf of the Approving Authority for Colleges
and Medical Schools you have asked my opinion upon the following
questions relative to the performance of the duties of said Authority
under G. L. (Ter. Ed.) c. 112, § 2, as amended.
1. The first question is:
"If a medical school is denied approval, and that decision has been
upheld by the court, may that school ever apply again for approval?"
I answer this question in the affirmative.
G. L. (Ter. Ed.) c. 112, § 2, provides for the granting or withholding of
approval of a medical school upon a request for such approval after notice
and hearing by the said Authority with a review by the Superior Court of
the Authority's decision upon petition of an aggrieved school.
The section provides that :
"The court shall hear the case and finally determine whether or not such
approval shall be granted or revised."
No provision of the statute forbids a medical school from making another
request for approval after an adverse determination by the Authority or
by the Superior Court, nor does any such prohibition arise by implication
from the phraseology of said section 2.
Unless new facts, tending to show a material change in the condition of
a school since a former adverse determination, were presented upon the
second application, the adverse decision upon the first application would
preclude favorable action upon the second application.
2. The second question is:
"If a medical school is denied approval, and the case is never taken to
court, may that school apply for approval again after it thinks improve-
ments have been made which would make the school eligible for approval.
Or, is the first decision of the Approving Authority final and everUisting? "
In answer to this question I advise you that such a medical school may
again apply for approval after an adverse determination of the Authority
upon a prior apphcation. The adverse decision of the Authority will be
final as against the school only in so far as the conditions at the school
remain substantially unimproved.
154 P.D. 12.
3. The third question is:
"Must every medical school outside the Commonwealth apply for
approval in order that the graduates of the school be eligible for examina-
tion? Or may the Approving Authority establish a list of approved
schools?"
In answer to this question I advise you that the provisions of said sec-
tion 2 place upon each medical school the burden of seeking approval if
it desires to have such approval. The Approving Authority is not au-
thorized by the terms of said section 2 to initiate action for approving any
school or schools nor to establish of its own motion a list of approved
schools.
4. The fourth question is:
"If a school has asked for approval, has been given a hearing, and has
been told that the decision in adverse, and then asks for the reasons why
the decision was adverse, should the Approving Authority supply the
school with those reasons?"
In answer to this question I advise you that when a medical school,
under the provisions of the second paragraph of said section 2, requests
the Approving Authority to inspect it and to notify its officers if it is
approved or, if it is not so approved, to notify them "what steps said . . .
medical school must take in order to gain the approval," then the reasons
for an adverse decision must necessarily be given, for a statement of such
reasons is an integral part of an intelligible notification of the steps neces-
sary to be taken in order to gain a future approval. When, however, an
adverse decision has been rendered by the Authority after a hearing upon
a written request for approval filed by a medical school under the third
paragraph of said section 2, the Authority is not then required by the
specific provisions of the statute, or by necessary implication from them,
to supply a school with a statement of its reasons for such decision.
5. The fifth question is:
"Under St. 1936, c. 247, § 4, what standing, if any, have schools ap-
proved by the American Medical Association?"
St. 1936, c. 247, §4, reads:
"For purposes of examination and registration of applicants and of
approval of medical schools, osteopathic schools recognized by the Ameri-
can Osteopathic Association shall have the same standing before the
board of registration in medicine, and the approving authority provided
for in section one, as medical schools recognized by the American Medical
Association."
This section does not give any particular standing to schools approved
by the American Medical Association. The weight to be attached to the
approval of a medical school by the said association is left to the judgment
of the Authority to whose sound discretion the approval or disapproval of
medical schools has been entrusted by the Legislature. Said section 4
requires only that the Authority shall extend the same weight to the
approval of osteopathic schools by the American Osteopathic Association
as it extends to the approval of medical schools by the American Medical
Association in considering the eligibility for approval by the Authority
of schools which have applied therefor.
P.D. 12. 155
6. The sixth question is :
"Is the opinion of the Approving Authority sound that the decision of
no evaUiating body for medical schools should carry significant weight
except that of an evahuiting body authorized by law to make such evalua-
tion? (The medical examining boards, or corresponding bodies of every
state or territorial jurisdiction in the United States, except Massachusetts
have had this power for years. The American Medical Association is
merely a corporation and not a governmental agency.)"
In answer to this question I advise you that it is for the Authority to
determine what weight, if any, shall be given to the decision of an "evalu-
ating body" with reference to the standing of a medical school as evidence
of the fitness of such a school for approval by the Authority. The Legis-
lature has not prohibited the Authority from giving such weight as it
may think proper to the decisions of evaluating bodies not authorized by
law to make evaluations. On the other hand, the Legislature has not
required that the Authority shall give weight to the decisions of such
bodies as are by law authorized to make evaluations.
The duty of the Authority is to give such weight to the decision of any
organization which has approved or rated or evaluated medical schools,
when such decision is before it as evidence concerning any particular school,
as it is fairly entitled to in the opinion of the Authority.
?. Your seventh question is:
"Is there any legal objection to the following procedure for dealing with
colleges, universities, and medical schools outside the Commonwealth of
Massachusetts?
(a) Write to the Board of Medical Examiners (or corresponding body)
of every state in which a medical school is situated, asking if it admits the
graduates of that school to examination, as graduates of a school approved
by it. If the reply is 'yes', may the Approving Authority accept that
school as approved without a hearing in accordance with the third para-
graph of section 37, chapter 451 of the Acts of 1939. If the reply is 'no',
the Approving Authority may refuse to accept, and any further action
comes under the third paragraph of section 37, chapter 451, Acts of 1939."
In answer to this question I must advise j'ou that the proposed pro-
cedure, as you set it forth, would not be entirely proper.
Under the provisions of St. 1939, c. 451, § 37, to which you refer and
which is now embodied in G. L. (Ter. Ed.) c. 112, § 2, the Authority is
required to give a hearing to a medical school requesting appro\'al under
the third paragraph of said section 2. Any evidence which the Authority
may possess and which it desires to consider in passing upon the question
of the approval of such school must be presented in evidence at the hear-
ing. The Authority may not consider evidence in the form of statements
of, or actions indicating, approval of a school by some board, which is
known only to it and is not communicated to the interested parties at the
hearing, nor may the Authority substitute the judgment of some other
body for its own and give or refuse to give its own approval of a school
solely on the basis of the judgment, opinion or action of some other body.
There is no impropriety in the Authority's ascertaining if Boards of
Medical Examiners of other states admit the graduates of a school to
examination, but the Authority cannot, as I have said, substitute the
judgment of such boards for its own nor may it properly act thereon
15G P.D. 12.
without making known at the required hearing what it has so ascertained,
so that the effect of such determinations of other boards may be modified
or corrected, if that is possible, by the interested parties at the hearing.
Very truly yours,
Robert T. Bushnell, Attorney General.
Division of Child Guardianship — Power to authorize Inoculation against
Diphtheria of Children in its Custody.
May 1, 1944.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir : — You have asked my opinion as to the authority of the
Division of Child Guardianship, organized under G. L. (Ter. Ed.) c. 18,
§ 5, to authorize inoculation against diphtheria of children who have been
"received not through the courts but from relatives or from boards of
pubUc welfare."
In an opinion of November 12, 1943, I advised you, with respect to
children committed by the courts to the custody of the department, that
the division stands in loco parentis as the agency through which the de-
partment discharges its duties to such children, and that it may authorize
necessary medical and surgical treatment by operation or otherwise.
I am of the opinion that whenever children are lawfully committed to
the custody of the department not only by the courts, but also by local
boards of pubHc welfare acting under G. L. (Ter. Ed.) c. 119, § 22, which
vests such boards with authority to "commit" neglected unsettled chil-
dren to the "custody" of the department, the said division has similar
authority. Also that upon the placing by an agent of the department of
a neglected child in the department's custody under the provisions of
G. L. (Ter. Ed.) c. 119, § 28, as amended, the division possesses similar
authorit}^ as long as the department retains such custody imder the pro-
visions of section 29 of said chapter.
With relation to children received by the department from parents
under section 38 of said chapter 119, or from boards of public welfare
under said section 38 and not under said section 22, the provisions of said
section 38 are different from those of sections 22 and 28 in that there is no
commitment to the "custody" of the department but merely a discretion
to "maintain" is vested in the department.
Said section 38 reads:
"The department may provide for the maintenance of a child under
the age of twenty-one, dependent on public charity, upon written appli-
cation of the parent or guardian or, if there is no parent or guardian, of a
friend, or of the board of pubUc welfare of the town where such child is
found."
I am of the opinion that if, as a part of the provision for the mainte-
nance of a child by the department under said section 38, the custody of the
child is assumed by the department, then the Division of Child Guardian-
ship stands in loco parentis to such child and may authorize necessary
medical and surgical treatment, including inoculation against diphtheria.
If, however, custody of the child is retained by the parents, guardian or
others entitled thereto and the Department merely provides the means
for the maintenance of the child, the right to authorize such treatment,
including inocculation against diphtheria, is vested in the parents, guard-
P.D. 12. ,57
ian or others having actual and lawful custody of the child. Custody of
a child appears to be necessarily associated with one who stands in loco
parentis and exercises such control over the child as pertains to a person
having such status (see 46 C. J. 1335).
Consent, express or implied, is a prerequisite to a surgical operation,
except in certain instances of emergency {M'Clullen v. Adayns, 19 Pick.
333). Since a young child cannot well give intelligent assent to such an
operation, it has been held that, in the absence of an emergency, an opera-
tion may not be performed upon a child without the con.scnt of the parents
when they are entitled to the child 's custotly.
I am informed that inoculation against diphtheria as well as vaccina-
tion against smallpox are in this respect treated by the State Department
of Public Health as if they were surgical operations, and consent to such
treatment by those standing in loco pareniis to a child is obtained before
treatment. Such practice is a proper one.
Very truly yours,
Robert T. Bushnell, Attorney General.
Hoard of Registration in Medicine — Authority to revoke Registration.
iVlAV 19, 1944.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam : — On behalf of the Board of Registration in Medicine
you have asked me two questions relative to the authority of said Board
to revoke the registration of a physician.
The first question reads:
"May the Board of Registration in Medicine revoke the registration
of a physician for gross misconduct in the practice of his profession as
stated in section 61, chapter 112, of the General Laws even though he
has never been convicted of a felony as stated in section 2 of chapter 112
of the General Laws. In other words, does section 2 of chapter 112 cancel
the effectiveness of G. L., c. 112, § 61?"
In my opinion the Board of Registration in Medicine may revoke the
registration of a physician for gross misconduct in the practice of his
profession.
The provisions of G. L. (Ter. Ed.) c. 112, §§ 2 and 61, in relation to
the revocation of the registration of physicians, are not inconsistent.
Section 61, which in its original form was enacted by Gen. St. 1917, c. 218,
§ 1, adds certain other causes to those set forth in said section 2 for which
such revocation may be made, including "gross misconduct in the practise
of his profession." Said section 2 stems from an older law, St. 1894, c. 458,
§ 4, which authorized revocation "after a conviction before a proper court,
for crime in the course of professional business."
This provision was changed by amendment through St. 1896, c. 230,
§ 3, so as to provide for cancellation of the registration of any person
"convicted of any crime in the practise of his professional business or
convicted of a felony."
The provision appears in the compilation of the Revised Laws, c. 76,
§ 3, as "the registration of any physician who has been convicted of a
felony or of any crime in the practice of his profession."
By amendment in Gen. St. 1918, c. 257, § 285, the provision appears
in the form now employed in said section 2, using the phrase "who has
been convicted of a felony."
158 P.D. 12.
In their present form the apphcable provisions of these two sections
are as follows:
"Section 2. The board, after due notice and hearing, may revoke any
certificate . . . and cancel the registration of any physician convicted of
a felony ..."
The section then enumerates other causes for which registration may
be cancelled; these additional causes having been first added to the
sections of earlier laws from which section 2 is derived by Gen. St. 1917,
c. 55, § 1.
"Section 61. Except as otherwise provided by law, each board of
registration . . . may, by a majority vote of the whole board, suspend,
revoke or cancel any certificate, registration, license or authority issued
by it, if it appears to the board that the holder of such certificate, registra-
tion, license or authority, is insane, or is guilty of deceit, malpractice,
gross misconduct in the practise of his profession, or of any offense against
the laws of the commonwealth ..."
Section 61 in its form as originally enacted by Gen. St. 1917, c. 218, § 1,
did not contain the words "except as otherwise provided by law," now
found therein, which words were inserted by Gen. St. 1918, c. 257, § 296.
It cannot well be said that the statement in said section 2 of certain
specific causes for which physicians' registrations may be revoked was
intended by the Legislature to be exclusive of all other causes so that
such statement operates by implication to exclude those causes set forth
in section 61 by force of the phrase "except as otherwise provided by
law."
It is to be noted that the Supreme Judicial Court has from time to time
considered action taken by the Board of Registration in Medicine pursuant
to the provisions of said section 61 or earlier sections containing similar
provisions of law, and nowhere is there to be found any intimation that
the provisions of said section 61 do not apply to said Board. See Ott v.
Board of Registration, 276 Mass. 566, and cases there cited.
The second question reads:
"May the Board of Registration in Medicine revoke the license of a
physician convicted in a court outside the Commonwealth of Massachu-
setts?"
There is nothing in the phraseology of said section 2 to indicate a legis-
lative intent to limit the meaning of the words "convicted of a felony"
so as to include therein only such felonies as may have resulted in con-
victions within the Commonwealth.
Very truly yours,
Robert T. Bushnell, Attorney General,
Metropolitan District Commission — Water Supply — Stand by Charge —
City of Cambridge.
May 25, 1944.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir: — You have asked my opinion as to whether the "stand by
charges" against the city of Cambridge, certified to you by the Metro-
pohtan District Commission, pursuant to G. L. (Ter. Ed.) c. 92, as amended
P.D. 12. 159
by St. 1943, c. 543, should be assessed, in view of a recent decision of a
justice of the Supreme Judicial Court relative to the adequacy of the
water supply of said city.
I answer this question in the affirmative.
St. 1943, c. 543, § 1, amends G. L. (Ter. Ed.) c. 92, by striking out
section 10 and inserting a new section 10 in place thereof. ,
The purpose of this new section 10 is to provide for the compulsory
joining of the Metropolitan District Water Supply System by certain
designated cities and towns which do not meet specifications laid down in
said act. The section provides tiiat the Department of Public Healtii,
on or before November first of each year, shall make a determination of
the adequacy of the water supply system of such cities and towns, and
that if a particular city or town does not meet the said specifications, then
such city or town shall be reported to the Metropolitan District Commis-
sion and compelled to join the metropolitan water 8up[)ly system, unh'ss
said report is reversed on appeal.
Said new section 10, among other things, provides:
"... Each town so reported, upon the providing of such connection,
and each town not so reported, except as hereinafter provided, which is
given or continues to have a connection directly between its own mains
and the supply mains of the metropolitan water district's distributing
system, shall annually, until it becomes a member of said district, be
assessed and pay ... a premium equal, in the year nineteen hundred
and forty-two, to three hundredths of one per cent, and in subsecjuent
years to three two hundredths of one per cent, of its valuation; . . . pro-
vided, that the assessment of such premium shall cease upon the failure
of said department to so report a town, either in the case of any town
which does not have a direct connection with said system, or in the case
of any town which breaks its connection within thirty days after it ceases
to be so reported ; ..."
Said new section 10 further provides, among other things, that a town
against which such an adverse determination and report have been made
may appeal from that determination and report to the Supreme Judicial
Court in order to prevent being compelled to join the metropolitan system.
A town against which such an adverse determination and report have
been upheld by the Supreme Judicial Court is then to be provided with a
connection with the metropolitan system and assessed in accordance with
the provisions of said G. L. (Ter. Ed.) c. 92, as amended by said chapter
543.
It is also provided that when the Supreme Judicial Court finds that a
town should not have been reported, then such town is not compelled to
join the metropoHtan system or to maintain a connection with the Metro-
politan Water District's distributing system. The language of said new
section 10, set out above, indicates that a town, which the Supreme Judi-
cial Court finds should not have been reported, stands in the same position
as a "town not so reported," but in the event that such town has a present
existing connection with the metropohtan system, it should b(; assessed a
premium (sometimes called a "stand by charge"), unless the town "breaks
its connection within thirty days after it ceases to be so reported."
Upon final determination of such an appeal in favor of a town by the
Supreme Judicial Court the town "ceases to be so reported" within the
meaning of the quoted words as used in said section 10, and the period of
''thirty-days" within which such town must break its connection with
160 P.D. 12.
the metropolitan distributing system begins to run from the date of such
final determination.
The city of Cambridge has had a connection with the metropolitan
system for a great number of years. On November 1, 1943, the Depart-
ment of Pubhc Health, acting under the provisions of G. L. (Ter. Ed.)
c. 92, § 10, as amended by said St. 1943, c. 543, reported to the Metro-
politan District Commission its determination that the city of Cambridge
did not meet the specifications laid down by said section 10, as amended.
The city of Cambridge appealed to the Supreme Judicial Court from that
determination and report of the Department of Public Health. The
Supreme Judicial Court, by a final decree entered on April 17, 1944,
upon such appeal (Suffolk County Equity 65730), in effect reversed the
determination of the Department of Public Health and found that said
city did have an adequate supply of suitable water within the meaning of
said section 10, and should not have been reported. No appeal was taken
from this decree to the full bench.
This decree, which was a final determination, did not, however, remove
the obligation of the city of Cambridge to pay the "stand by charges" in
the event that the city did not break its connection within thirty days
after such final determination of the Supreme Judicial Court. Inasmuch
as more than thirty days have elapsed since such final determination, if
the fact be that the city of Cambridge has not broken its connection with
the metropolitan system, assessment should be made of the "stand by
charges" in accordance with the law.
Very truly yours,
Robert T. Bushnell, Attorney General.
State Retirement System — Accidental Death Benefits to Widow of Em-
ployee Whose Death Occurred after Retirement for Accidental Disa-
bility.
June 5, 1944.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir : — You have informed me of certain facts which the State
Board of Retirement has found to exist upon an application for accidental
death benefits presented to the Board by the widow of a state employee,
whose death occurred after retirement for accidental disability.
You have asked my opinion as to whether upon such facts the em-
ployee's death occurred in such manner as to bring it within the provi-
sions of G. L. (Ter. Ed.) c. 32, § 4F.
The duty of making such determination has been placed by the Legis-
lature upon the Board. The Attorney General cannot make such deter-
mination nor may his opinion upon the facts found by the Board be sub-
stituted for the considered judgment of that body.
The applicable portion of said section 4F provides :
" (1) If the board, upon receipt of proper proof, finds that a member
died as the natural and proximate result of a personal injury sustained or a
hazard undergone, at some definite time and place, while such member
was engaged in the performance and within the scope of his duties and,
. . . that the sustaining of such injury or the undergoing of such hazard
occurred within two years prior to the death of such member or, if occur-
ring earlier, was reported to the board by the member or in his behalf
within ninety days after its occurrence, and that such injury or the under-
P.D. 12. 161
going of such hazard was not the consequence of his serious or wilful
misconduct, his accumulated assessments, or, in case his death occurred
after retirement for accidental disability, the sum allocable to his account
in the annuity reserve fund, shall be paid to the person entitled thereto
under section five A, and in addition there shall be paid to the dependents
of such member, as hereinafter designated, an accidental death benefit
to consist of a pension equal to one half of the annual rate of comf)ensation
received by him on the date such injuries were sustained or such hazard
was undergone. ..."
You advise me that the following are the facts in the case:
"1. Mr. Williams was employed in the Division of Child CJuardian-
ship, Department of Public Welfare, as a visitor and guardian to older
boys.
2. He was en route to the State House after a session of the Quincy
Court which he had attended in connection with his employment.
3. His car became embedded in a snowdrift and while shoveling it out
of the drift, he suffered a heart attack from which he never recovered.
4. He was dually employed by the City of Boston as Supervisor of
Wards at the Boston City Hospital at night and by the Commonwealth
of Massachusetts as above outlined.
5. His medical record indicates a long period of hypertension."
I assume that the Board has found the existence of the other facts set
forth in said section 4F with relation to the element of time involved in
the death and the reporting of the injury.
Upon the facts in the case as you have set them forth, it is for the Board
to determine as a matter of fact whether the employee "died as the nat-
ural and proximate result of a personal injury sustained or a hazard
undergone . . . while" the employee "was engaged in the performance
and within the scope of his duties."
In other words, if the Board finds that the heart attack from which
the employee died was the natural and proximate result of his exertions
in shoveling, then it would be justified in finding that such death was the
result of an injury sustained or a hazard undergone in performing such
work and the applicant would be entitled to the accidental death benefit
provided by the section. From the facts as you have stated them there
would appear evidence which would justify a finding that at the time of
the heart attack he "was engaged in the performance and within the
scope of his duties."
In determining whether the death was "the natural and proximate
result" of the employee's exertions the Board must decide whether the
heart attack was caused by such exertions or was the result of a previ-
ously existing bodily condition.
The principles of law laid down by the Supreme Judicial Court in
Brightman's Case, 220 Mass. 17, are applicable to this matter. On page
20 of its opinion the court said:
"Acceleration of previously existing heart disease to a mortal end sooner
than otherwise it would have come is an injury within the meaning of the
workmen's compensation act."
Very truly yours,
Robert T. Bushnell, Attorney General.
162 P.D. 12.
Teacher — High School Principal — Re-employment after Service in the
Military Forces — When Appointment was for a Fixed Term Expiring
before Application for Reinstatement.
June 8, 1944.
Brigadier General William J. Keville, The Adjutant General.
Dear Sir : — You have informed me that a certain teacher, the prin-
cipal of a high school, left his position to enter the military forces of the
United States in January, 1943. In September, 1943, he received an hon-
orable discharge from such service and within a few months thereafter
applied for reinstatement as principal to take effect in September, 1944.
You advise me that his application for reinstatement was rejected by the
school committee upon the ground that inasmuch as he had been origi-
nally appointed as principal for a fixed term, namely, the school year of
1942-1943, and that, as such term had expired before his application, he
was not entitled to reinstatement in such position by reason of the pro-
visions of St. 1941, c. 708, § 6.
You ask my opinion as to the status of this ex-principal in relation to
his right to reinstatement.
I am of the opinion that his reinstatement is not compulsory.
St. 1941, c. 708, § 6, in its appUcable part, reads:
''Any person referred to in section one who was or shall be separated
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 service, be reinstated or re-employed in said office or position; pro-
vided, that, in case he was appointed for a fixed term, the term has not
expired; ..."
It appears to be the fact, as set forth in a communication attached to
your letter, that this teacher was not on tenure but was serving in the
years 1942-1943, the second contractual period in his position. Under
such employment he was appointed for the school year of 1942-1943 only,
and the term which was fixed by the contract made with the school com-
mittee had expired when he made application for reinstatement subsequent
to September, 1943.
Such a term, which is for a definite period, plainly falls within the
meaning of the words "a fixed term" as used in the above proviso of
said section 6, and since the position which the teacher held was not sub-
ject to civil service and the term of employment had expired before his
application for reinstatement, by force of such proviso this teacher is
excepted from the right to compulsory reinstatement established for cer-
tain persons by said section 6.
It was undoubtedly the general purpose of the Legislature in enacting
said chapter 708, to protect public servants with respect to reinstatement
in positions held before entering the military and naval forces, but the
Legislature in said section 6 has clearly indicated an intention that it
should not be required that non-civil service employees, holding positions
for a fixed term, must be reinstated in such positions after the term for
which they were appointed had expired.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 163
Old Age Assistance — Dependency Benefit Allowances to Servicemen's De-
pendents to he Considered as Resources of Applicants for Old Age Assist-
ance— Such Allowances Not to he Considered as Income of a Child
of An Old Age Assistance Recipient in Determining Such Child's Lia-
bility for Support of Parent.
June 14, 1944.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — In a recent letter you have asked my opinion as follows:
" I shall appreciate a ruling from you as to the proper use of Depend-
ency Benefit Allowances to Servicemen's Dependents in the administra-
tion of Old Age Assistance.
(1) Should such allowances and allotments be considered a resource to
recipients of or applicants for old age assistance?
(2) In considering the income of a son or daughter of an old age assist-
ance recipient or applicant should an allowance or allotment be included
in determining such child's liability for the support of his or her parent?"
I answer your first question in the affirmative and your second question
in the negative.
G. L. (Ter. Ed.) c. 118A, § 2, provides, in part:
"In determining the need for financial assistance, said bureaus (bureaus
of old age assistance) shall give consideration to the resources of the aged
person. . . ."
With relation to the computation of the amount which may be paid to
an aged person as assistance, G. L. (Ter. Ed.) c. 118A, § 1, provides, with
regard to the minimum sum so payable:
'.'. . . In computing the aforesaid minima the local board of public
welfare, or the department acting on cases appealed, as the case may be,
shall, in accordance with rules and regulations made by the department,
deduct therefrom the amount of income the person assisted or to be assisted,
may be receiving /rom any source whatsoever, . . ."
With relation to the financial abiUty to support an aged person by
such person's child, which is to be considered in determining the resources
of an aged person, it is provided by G. L. (Ter. Ed.) c. 118A, § 2A, that
under various designated conditions a child shall not be required to con-
tribute to the support of such person unless the child is "in receipt of
income in excess of" stated amounts corresponding to the various desig-
nated conditions.
The Federal Servicemen's Dependents Allowance Act of 1942, as
amended, which provides for monthly family allowances to the dependent
or dependents of enlisted men in the army, navy, marine corps or Coast
Guard of the United States, provides in section 115:
"The monthly family allowances payable under the provisions of this
title shall not be assignable; shall not be subject to the claims of credi-
tors or any person to whom or on behalf of whom they are paid; and shall
not be liable to attachment, levy, or seizure by or under any legal or
equitable process whatever."
It would appear from those provisions in the light of the entire context
of the act that it was the intention of Congress e.xpressed in this law, that
the allowance provided for dependents of servicemen were for application
to the support of the dependents themselves, and that it was not the
164 P.D. 12.
intent of Congress that such allowance should be diverted by direct or
indirect means to other purposes by judicial or administrative action.
This being so, it follows that the amount of a dependent's allowance
paid by the Federal Government to an aged person for the latter's support
is to be considered a resource of such aged person.
With respect, however, to the income of a child of an old age assistance
recipient, the amount of a dependent's allowance paid to such child by
the Federal Government being intended, as I have said, for application
to the support of such dependent alone should not be included as "in-
come" within the meaning of that word as used in said section 2A, in
determining the liability of such a child for the support of an aged parent.
Very truly yours,
Robert T. Bushnell, Attorney General.
Military or State Aid or Soldiers' Relief — Welfare Supervisor Employed
by Local Board of Public Welfare may not Act as Agent or Disbursing
Officer for the Payment of such Relief.
June 23, 1944.
Hon. W. Rea Long, Commissioner of Veterans Aid and Pensions.
Dear Sir : — You have asked my opinion as to whether, in a town
which has accepted G. L. (Ter. Ed.) c. 115, § 3A, a welfare supervisor,
who is an employee of the board of public welfare in said town, may act
as agent or disbursing officer of the selectmen for the payment of state
or military aid or soldiers' relief when he acts as such agent by appoint-
ment of the selectmen.
I answer your inquiry in the negative. G. L. (Ter. Ed.) c. 115, pro-
vides for state and military aid and soldiers' relief. Section 3A of said
chapter reads as follows:
"In a city or town which has duly accepted this section, no almoner oi-
member of the board of public welfare, or officer performing similar duties,
or any agent of any of them, shall directly or indirectly act as agent or
disbursing officer of the aldermen or selectmen for the payment of state
or military aid or soldiers' reUef; provided, that this section shall not
operate to prevent selectmen in towns who are also members of boards
of public welfare from acting in their capacity as selectmen or through
an agent acting for the selectmen."
The obvious purpose of this section is to prevent the appearance of
identity in the administration of welfare aid and veterans' aid. A welfare
supervisor is an agent of the board of public welfare.
This being so, he may not also be an agent of the selectmen for the pay-
ment of state or military aid or soldiers' relief.
The proviso in section 3A does not exclude an agent of the board of
public welfare from the prohibition in the first part of said section. The
effect of the proviso is merely that selectmen who are also members of
a board of public welfare are not disqualified from exercising or perform-
ing by themselves, or through the selectmen's agent, the powers and duties
conferred or imposed on selectmen by said chapter 115. Although select-
men as such have powers and duties under said chapter 115 and may
act through an agent, their agent cannot be one who is also an agent of
the board of public welfare. .
Very truly yours,
Robert T. Bushnell, Attorney General.
PD. 12. ,1j65
Firemen — Amount of Compensation by Municipality to Those Dispatched
to Service in an Outside Community under Executive Order 22.
JrNE 26, 1944.
Office of the Selectmen of Plymouth.
Dear Sirs: — This will acknowledge your letter of June Kith in which
you ask for an opinion relative to the payment of firemen dispatched for
service in an outside community under the provisions of pAccutive
Order 22.
The Attorney General does not ordinarily advise the officials of the
cities and towns of the Commonwealth, but, because of the nature and
subject matter of your inquiry, I feel that it is appropriate for me to
advise you in this instance.
Section 13 of Executive Order 22 provides:
"Members of volunteer fire departments or part-paid firemen or call
men dispatched for service pursuant to the provisions of this order shall
receive compensation in amounts not exceeding six dollars for services
rendered within any twenty-four hour period. Such compensation shall
be paid by the city, town or fire district of the fire department with which
such personnel is affiliated, and such city, town or fire district shall be
entitled to be reimbursed by the Commonwealth for all such compensa-
tion paid by it."
The foregoing section does not purport to establish an hourly rate of
compensation, nor does it require that twenty-four hours of service be
rendered to entitle one to receive compensation in the maximum amount
of $6 fixed by its terms. Said section merely prohibits the pajonent of
compensation in excess of $6 for services rendered within any one twenty-
four hour period. The amount of compensation to be paid for services
rendered within a single twenty-four hour period lies within the sound
discretion of the authority whose duty it is to determine the compensa-
tion to be paid by a city, town or fire district to its volunteer, part-paid
or call firemen who are dispatched for service pursuant to the provisions
of Executive Order 22, subject only to the limitation that not more than
$6 may be paid for services rendered within a single period of twenty-
four hours.
Consequently I advise you that each of the men referred to in your
letter may be awarded compensation in such amount not in excess of $6
for services rendered in each twenty-four hour period as may be deter-
mined by the authority whose duty it is to fix such compensation. The
amount so awarded may be certified to the Commonwealth for reimburse-
ment as provided in Executive Order 22.
Very truly yours,
Robert T. Bushnell, Attorney General.
166 P.D. 12.
INDEX TO OPINIONS
PAGE
Approving authority for colleges and medical schools; applications; institu-
tions outside the Commonwealth 101
Applications for approval; denials of approval; procedure with relation to
granting approval 153
Auditor; right to examine records of Division of Civil Service .28,29
Banks; contributions to philanthropic organizations; G. L. (Ter. Ed.) c. 155,
§ 12A . . . . . . . . . . . . . .92
Bridges; duty; requirements as to maintenance of bridge; weight of load . 31
Child Guardianship, Division of; authority; care of children .... 95
Power to authorize inoculation against diphtheria of children in its custody 156
Chiropody, Board of Registration in; disapproval of rules; temporary ap-
proval; right of graduate to take examination; change of registrant's
name 14
Civil service; appointment to position of supervisor of state police detectives 89
Approval of appgintments of Mayor of Lowell 63
Call firemen in Waltham; promotions ....
Chief of poHce; acceptance of St. 1911, c. 468, bv City of Attleboro; pro-
cedure under G. L. (Ter. Ed.) c. 31, § 49A ' .
Office of schoolhouse custodian in Boston vSchool Department governed
by G. L. (Ter. Ed.) c. 36
.''Police; military substitutes; appointments to fill permanent vacancies
Position of assistant deputy warden at State Prison ....
Record of appointment; pennanency of position; deputy purchasing
agent in Springfield
Registration of professional engineers; qualifications .
Rules; employees having prisoner under their charge .
Temporary promotions ; authority to direct
Transfer; decision of Director; appeal ....
Veterans' preference; certificates of discharge
Conservation, Department of; fishing; use of two hooks or two flies while
fishing in inland waters
Rules limiting speed of motor vehicles in state forests and parks; lack of
authority
Constitutional law ; anti-aid amendment ; lunches for school pupils
Effect of proposed act to establish a committee of the General Court to act
with respect to rules and regulations of departments
Enforcement of regulations and orders established by the United States
Price Administrator
Proposed bUl for care of lots in cemeteries
Correction, Department of; authority of county commissioners to
and house of correction at Pittsfield . . . .
Stagger system of employment at State Prison in compliance
forty-eight hour law
County officers; military service; salaries; St. 1941, c. 708
Electricians, State Examiners of; members ex officio; designation
tutes during a member's absence
Embalming, Board of Registration in; advertisement by funeral
service
Emergency Public Works ; authority for makmg postwar contracts
Fees of clerks of District Courts for issuing waiver of notice of marriage
Firemen; amount of compensation by municipality to those dispatched to
service in an outside community under Executive Order 22 . . . 165
close jail
with the
of substi
directing
9
117
144
138
90
13
5
123
41
11
7
38
141
74
51
53
49
36
65
114
39
77
147
P.D. 12. 167
Fish and game; license; revocation; conviction in criminal case 17
Governor: commander in chief of State Guard; participation of State ( aiard
in plan of United States military authorities for the protection of the
Commonwealth 33
Emergency war powers; executive orders; public welfare .... 68
Greylock Reservation Commission : authority to grant hunting privileges to
licensed hunters on reservations 43
Hairdressers, registration of: department store; multiple iieaut>- shops;
registration and fee for each shop " 24
Insurance; foreign life company; amount of capital required to write acci-
dent and health insurance . . 125
(iroup policies; state employees; associations 95
Illegal inducements to insure; "stock company association": Home
Owners' Loan Corporation ; unlicensed foreign companies . 129
Life companies; reinsurance; approval by commissioner ... 93
Pooling of workmen's compensation risks 79
Workmen's compensation; self-insurers: policies 83
Labor and Industries, Department of; records of women and minors kept
by employers under G. L. (Ter. Ed.) c. 151. § 15 .30
Licenses; lobsters and crabs in coastal waters; qualifications of licensees 23
Medicine, Board of Registraticm in; authority to revoke registration . .157
Graduate of unapproved medical schf)oI; right to take examination for
registration 151
Non-approved school of medicine; matriculation prior to Jan. 1, 1941;
examination for registration 57
Metropolitan District Commission; water supply; stand by charge; City
of Cambridge 158
Metropolitan District Water Supply Commission; reservoir in Quincy . .124
Metropolitan water districts; assessments; valuation of property ... 76
Military or state aid or soldiers' relief; welfare supervisor employed by local
board of public welfare may not act as agent or disbursing officer for
the payment of such relief 164
Milk Control Board; authority to enforce criminal penalties for violation of
rules; licenses; power to grant and revoke 148-
Authority to establish niinimum price for foreign milk purchased in the
Commonwealth 142
"Massachusetts producers" as used in G. L. (Ter. Ed.) c. 94A, § 12; peti-
tion for the establishment of minimum market prices .... 150
Minor; commission as notar\' public or justice of the peace .... 61
Motor vehicles; licenses; revocation; convictions; plea of nolo ... 99
Merger of corporations; re-registration 55
Registry of; registration to a lessee 16
Municipalities; public market places; towns of less than 10,000 population 59
Right to authorize installation of fire escapes 39
Support of indigent persons in hospitals 97
Old age assistance; dependency benefit allowances to servicemen's depend-
ents to be considered as resources of applicants for old age assistance;
such allowances not to be considered as income of a child of an old age
assistance recipient in determining such child's liability for support of
parent . • • 163
Police Commissioner of Boston; hackney carriage licenses; increase and
decrease in number; Department of Public Utilities .119
Public employees; group insurance; common pajinaster . . .58
Hospital and medical services obtainable; pay roll deductions ... 96
Public Health, Department of; regulations; slaughtering of poultry 62
Slaughtering of animals whose meat is not for human consumption: re-
quirement for presence of inspector • .136
Public Safety, Department of; license or certificate for use; special hall;
occasional performances '^^
168 P.D. 12.
Public Utilities, Department of; extent of authority; vessels propelled by
Diesel motor; steamship 133
Operation of civil aircraft ser^^ce in the Commonwealth; extent of au-
thority . . . . . 146
PubUc Welfare, Department of; corporations; contributions to general
funds for social and economic bettennent 3
Pubhc Works, Department of; hours of work of departmental laborers . . 44
Establishment of stand for vehicles for hire upon land of Commonwealth
at the airport in East Boston 47
Retirement system; accidental death benefits to widow of employee whose
death occurred after retirement for accidental disability . .160
Eligibility for retirement of officer while on leave of absence in naval
service 35
Employee; war time re-emplojonent after age seventy 104
Permanent incapacity for performance of employee's work; right to be
retired 105
State police officers and inspectors; superannuation allowance; length of
service 122
Transfer of funds; action of Legislature 3
Veteran; continuity of period of ten years' service for the Commonwealth 116
Incapacity; status as one in the service of the Commonwealth . . 121
Subsequent employment; retirement compensation payments . . 45
Savings Bank Life Insurance ; prohibition on loans to trustee of savings bank
from funds of insurance department 134
Schools, pupils; salute to flag and oath of allegiance 64
Settlement; veteran; parents; legislative intent 117
State armories; use for public purposes and for places of assembly 139
State or military' aid ; reimbursement of municipalities ; certification by mu-
nicipal officers 25
Taxation; person in possession of real estate owned by Commonwealth;
Commonwealth Flats ; leased for business purposes .... 20
Salary increase of members of the Legislature; ^vithholding tax . . .60
Teacher; high school principal; re-employment after service in the military
forces; when appointment was for a fixed term expiring before appli-
cation for reinstatement 162
Teachers' retirement system; municipalities; payments on account of those
on military leave of absence 102
Rights of members leaving positions to enter military service; resigna-
tions; refunds 109
Teacher employed by both town and Commonwealth; basis of payment
to annuity fund 72
Towns; appropriations for memorial hall for veterans 140
United States flag; person authorized to order destruction of outworn flags in
a cemetery 6
United States medical officers; extent of authority to practice in Massachu-
setts 12
Veteran; basis of retirement allowance; maintenance 73
Workmen's compensation; employers; number of employees .... 70
Persons employed by those subject to the Federal Communications Act
and to Part I or Part II of the Interstate Commerce Act; legislative
intent 106
Self-insurance; policy; reinsurance; "stop loss" contract . . . .112
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