Public Document No. 12
Ci)e Commontoealtf) of s^assmtvisttts
REPORT
ATTORNEY GENERAL
Year ending June 30, 1945
Publication of this Document Approved by the Commission on Administration and Finance.
900. 4.'46. 18434.
Public Document No. 12
Cbe Commontoealtb of S@a0sac|)usetts
REPORT
ATTORNEY GENERAL
Year ending June 30, 1945
Publication of this Document Approved by the Commission on Administration and Finance.
900. 4-'46. 18434.
r
Cbe Commontoealti) of a^a00ac|)u$ett0
Depahtment of the Attorney General,
BosTox, January 9, 1946.
To the Honorable Senate and House of Representatives.
I have the honor to transmit herewith the report of the department
for the year ending June 30, 1945.
Very respectfully,
CLARENCE A. BARNES,
Attorney General.
Cfje Commontoealtf) of d^asmthmtm
DEPARTMENT OF THE ATTORNEY GENERAL
State House
J
Attorney General
CLARENCE A. BARNES
First Assistant Attorney General
J. J. Spiegel
Assistants
Roger Clapp William Gardner Perrin
Nathan B. Bidwell Herbert D. Robinson
William S. Kinney William H. Sullivan
Charles Shulman Conde J. Brodbine
George P. Drury ^ Beatrice H. Mullaney
Michael A. Fredo Vincent J. Panetta^
David J. Coddaire Thomas F. McLaughlin
Alfred E. LoPresti
Assistant Attorneys General on Leave of Absence
William G. Andrew ^ Ernest Brenner ^
Assistant Attorneys General assigned to Veterans^ Division
Nicholas DeLeo Joel L. Miller
Assistant Attorneys General assigned to Division of Employment Security
Saul Gurvitz Joseph S. Mitchell
' Specially assigned to N. Y., X. H. & H. R.R. and Boston Elevated Railway case^.
- Resigned July 31, 1945.
' On leave of absence because of duties as associate county commissioner.
* On military leave of absence.
Chief Clerk to the Attorney (icneral
Harold J. Welch
LiM Clerk to the Attorney General
James J. Kelleher
Director of Division of Collections
W. Forbes Robertson
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Period from July 1, 1944, to June 30, 1945
Attorney General's salary $ 8,000 00
Assistants and others, salaries ........ 138,900 00
Expenses 11,000 00
Settlement of damages by state-owned cars (CI. L. (Ter. Ed.) c. 12, § 3B) 8,000 00
Settlement of certain claims (G. L. (Ter. Ed.) c. 12, § 3A) . . 3,000 00
Transfer for temporary salary increases ...... 1,36000
$170,260 00
E.rpen'litiire>'.
For salary of the Attorney General $ 8,360 00
For salaries of assistants and others :
Actual expenditures $133,778 23
Amount reserved ...... 6,121 77
139,900 00
For office expenses : '
Actual expenditures $9,223 63
Amount reserved ...... 1,755 37
10,979 00
For settlement of damages by state-owned cars (G. L.
(Ter. Ed.) c. 12, § 3B)" 4,795 72
For small claims (G. L. (Ter. Ed.) c. 12, § 3A) 2,996 48
Total expenditures $167,031 20
Financial statement verified.
By J. D. MacDONALD,
For the Comptroller.
Approved for publishing.
FRAXCIS X. LAXG,
Comptroller.
November (J. 1945.
Cf)e CommontDealtl) of ^a00act)U)BEett0
Department of thk Attoknky General,
Boston, January 9, 1946.
To the Honorable Senate and House of Representatives.
Pursuant to the provisions of section 11 of chapter 12 of the General
Laws (Tercentenary Edition), as amended, I herewith submit my report.
The cases requiring the attention of this Department during the fiscal
year ending June 30, 1945, totaling 8,451, are tabulated as follows:
Corporate franchise tax cases ......... 96
E.xtradition and interstate rendition . . . . . 115
Land Court petitions .......... 71
Land damage cases arising from the taking of land:
Department of Public Works ........ 46
Metropolitan District Commission ....... 2
Metropolitan District Water Supply Commission . . . . JO
Miscellaneous cases, including suits to require the filing of returns by cor-
porations and individuals and the collection of money due the Com-
monwealth .......... 3,715
Petitions for instructions under inheritance tax laws ..... 6
Estates involving applications of funds given to public charities . . . 733
Settlement cases for support of persons in state hospitals .... 26
Pardons :
Investigations and recommendations in accordance with G. L. (Ter. Ed.)
c. 127, § 152, as amended 100
Workmen's compensation cases, first reports ...... 1,994
Cases in behalf of Division of Employment .Security ..... 1,537
To preserve the dignity of the individual, carrying with it all of the
implications of freedom, liberty and justice, is to my mind one of the
paramount duties of the chief law enforcement officer of the Common-
wealth.
To preserve that dignity men and women throughout the world have
suffered beyond the power of words to describe. To preserve that dignity
countless millions have sacrificed their lives.
Upon a.ssuming the office of Attorney General of Massachusetts, I
resolved upon a course of conduct for this Department that would preserve
the dignity of the individual — that would be devoid of ballyhoo and
sensation. I resolved that all matters would be carefully and painstak-
ingly investigated. I realize fully the power of the criminal indictment,
and how, all too easily, the reputation and standing of respectable citizens
8 P.D. 12.
in the C-ommon wealth could be irreparably damaged by the careless use
of this power.
To that end this Department has worked harmoniously with the Dis-
trict Attorneys throughout the Commonwealth and they have had an
open door to consult with either my assistants or myself on all matters
affecting the public welfare.
The Attorney General has continuously counseled the many depart-
ment heads of the Commonwealth and frequently informal advice has
been given. I have endeavored at all times to conduct this Department
efficiently and with a high standard of administration, ever remembering
that the citizens of the Commonwealth are entitled to able legal repre-
sentation.
I pledged the people of Massachusetts when I assumed the office of
Attorney General that I would immediately establish a veterans' division
which would freely advise and act in behalf of the veteran, his widow,
orphans and other dependents. This has been done. Two assistants
devote their entire time to this division. A complete file of the work of
the division is kept in a card index containing a record of the applicant's
problem and a notation of the advice given and work done. In addition
there have been innumerable personal requests for information and advice
— many by telephone. Many letters are received in which requests are
made for information. Month by month an increasing number of town
and city officials, department heads and legislators seek advice or informa-
tion. Many veteran organizations have made use of this division. The
division is expanding and we are constantly seeking means and adopting
plans which will enable the division to function at the highest peak of
efficiency.
I should like to illustrate briefly the varied cases that have come before
this division:
A father of a discharged disabled veteran was very much distracted
about his son out West who had become involved in a confused court
situation. This division enabled the father to contact the proper authori-
ties and was able to straighten out the case in such a manner that the
boy is now home and in happy surroundings with his parents.
A veteran who was a doctor prior to entering the service became dis-
abled while in combat areas, engaged in hospital work, and desired to
resume his practice upon his discharge from the service. There was some
difficulty regarding his doctor's certificate and license as he had changed
his name while in the service and there were complications relative to
his going back into practice under the changed name. This division went
into the case very thoroughly and as a result he was given a new certifi-
cate and license under his present legal name and was thereby enabled
to resume his practice.
A mother of a son who was killed in action sought advice on the situa-
tion where there was a divorce. The wife filed an appeal before a decree
became absolute, while the son was in the service. There was a question
of custody of the children and a very much involved probate situation.
The family had a lawyer who suggested that the veteran angle be looked
into. This division actively co-operated with the attorney and a final
adjustment was made.
IM). 12. 9
The development of the ahport at Boston is of paramount importance
to all of the citizens of Massachusetts. On behalf of the Massachusetts
Aeronautics Commission and in conjunction with the city of Boston, I
argued the case of the Civil Aeronautics Board (Federal i North Atlantic
Route before the Civil Aeronautics Board in Washington, seeking to have
Boston's Logan International Airport certificated as a terminal on the
proposed air i-outes to Europe. The Board's decision has placed Boston
as a co-terminal on all the named routes to F]urope.
This report does not detail the many activities of the Department.
( )ur work in the coiu'ts — state and federal — has proceeded without fan-
fare. Contracts of various departments have been examined and approved,
settlements of inheritance taxes approved, state note issues approved,
hearings have been attended and conducted on behalf of various state
boards by the Department, bond issues have been approved, leases, have
been approved, conferences held with and advice given to state commis-
sions, boards and divisions, consultations held with the Division of Civil
Service, and interviews and consultations with city solicitors, town coun-
sel, members of the Legislature and attorneys.
I sincerely thank the Assistant Attorneys General and the other mem-
bers of the Department for their services and loyalty, not only to myself,
but to the Commonwealth of Massachusetts.
Respectfully submitted,
CLARENCE A. BARNES,
Attorney General.
OPINIONS.
Walden Pond State Reservation — Powers of Commission — Lack of
Authority to Restrict.
July 18, 1944.
Walden Pond State Reservation Commission.
Gentlemen : — You have asked me whether the Walden Pond State
Reservation Commission is within its proper jurisdiction in restricting
boating on Walden Pond and requiring that privately-owned boats be
removed from the pond and reservation after being used.
It is my opinion that your Commission has no authority to restrict
boating on the pond or to require the removal of privately-owned boats
therefrom, but that you may make reasonable rules and regulations for
the removal of privately-owned boats from the reservation after they have
been used.
The Walden Pond State Reservation was acquired by gift and is de-
fined by St. 1922, c. 499, as "certain lands and rights therein situated on
the shores of Walden pond in the towns of Concord and Lincoln." The
statute further provides that "the title to such land shall be and remain
in the commonwealth of Massachusetts." It is significant that the statute
refers Only to lands and rights therein and does not mention Walden Pond.
Your Commission is given full power and authority over the Walden
Pond State Reservation (St. 1922. c. 499, § 3), is authorized to make rules
and regulations for the government and use of the reservation (St. 1925,
c. 26, § 1), and, accordingly, may require the removal of boats from the
reservation after they have been used, but may not restrict the use of
boats on Walden Pond, since it is no part of the area committed to its
icontrol.
Very truly yours,
Robert T. Bushnell, Attorney General.
Department of Mental Health — Transfer of Surplus Supplies from one
State Hospital to Another Unauthorized.
Aug. 11, 1944.
Dr. Clifton T. Perkins, Commissioner of Mental Health.
Dear Sir: — You have asked my opinion as to whether the Depart-
ment of Mental Health may transfer a surplus of supplies or equipment
from one institution to another institution within the department at a
price determined by the department.
I answer your inquiry in the negative.
St. 1943, c. 344, § 2, amended chapter 7 of the General Laws by inserting
therein a new section, 25A, which reads as follows:
"The state purchasing agent may provide for the transfer of supplies
from one state agency to another when, in his opinion, such transfer is for
the best interests of the commonwealth, and may provide for the making
of suitable adjustments on the state comptroller's books on account of
P.D. 12. II
such transfer. He shall also have authority to approve the amount or
quantities of all supplies and materials purchased by state agencies, not-
withstanding that such agency has conformed to the regulations relative
to such purchases and that an appropriation is available therefor. In
case an application by a state agency is not approved by the state pur-
chasing agent, such agency may appeal in writing to the commission,
whose decision shall be final."
The foregoing section makes the transfer of supplies from one state
agency to another subject to provisi(ms made or to be made by the state
purchasing agent. The price to be paid for such supplies or "the making
of suitable adjustments on the state comptroller's books on account of
such transfer" is within the scope of such provisions. A transfer of equip-
ment or supplies from one institution to another within the same depart-
ment may fairly be said to be a "transfer of supplies from one state agency
to another," as the quoted words are used in said section 25A.
It would appear that the disposal of agricultural products is regulated
by the provisions of O. L. (Ter. Ed.) c. 7, § 22 (11), which is as follows:
"The commissioners of the commission, sitting as a board, shall, sub-
ject to the approval of the governor and council, make rules, regulations
and orders which shall regulate and govern the manner and method of
the purchasing, delivering and handling of, and the contracting for, sup-
plies, equipment and other property for the various state departments,
offices and commissions, except when they are for legislative or military
purposes. Such rules, regulations and orders shall be of general or limited
application, and shall, so far as practicable, be uniform, shall be in con-
formity with existing laws relative to the purchase of articles and mate-
rials made by inmates of penal institutions and articles and supplies made
by the blind except that such purchase shall be made by or under the
direction of the state purchasing agent subject, however, to such approval
by the board as would be required if the purchase were made from some
other source, and shall include provision for the following:
(11) The use and disposal of the products of state institutions;"
You have directed my attention to that part of G. L. (Ter. Ed.) c. 123,
§ 7, which reads as follows:
"The department shall provide for the efficient, economical and humane
management of the state hospitals. It shall establish by-laws and regu-
lations, with suitable penalties, for the government of said state hos-
pitals. . ."
In view of the specific provisions of said sections 25A and 22 (11),
quoted herein, it is apparent that the matter of the transfer of supplies
and products from one state hospital to another within the department is
not included within the scope of that part of said section 7 set forth
above.
Very truly yours,
Robert T. Bushnell, Attorney General.
12 P.D. 12.
Old Age Assistance — Waiver of Rights — Contributions by Children.
Aug. 11, 1944.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — You have asked my opinion on two questions relative
to the administration of G. L. (Ter. Ed.) c. 118A, entitled "Adequate
assistance to certain aged citizens."
Your first question asks "whether or not a recipient (applicant) may
waive his or her rights to the fidl amount of assistance rather than have
action taken against a son or daughter to secure a reasonable contribution."
I answer this question in the affirmative.
The assistance provided by said chapter 118A is available upon the
filing of an application therefor, provided the proposed recipient possesses
certain prescribed qualifications. Unless and until an application is filed
with the proper authority assistance may not be extended under said
chapter. I find nothing in the law which would prevent the withdrawal
of an application once filed or the rejection of assistance that has been
awarded, regardless of the reason or motive for such withdrawal or rejec-
tion. Hence I advise you that an applicant for old age assistance or a
recipient thereof may at any time withdraw his application therefor or
entirely forego the assistance provided by law which has been awarded
him, and to which he would otherwise be entitled.
Your second question inquires as to whether a recipient of old age as-
sistance may waive such amount thereof for which a son or daughter is
liable in order to protect the son or daughter from prosecution for failure
to provide such amount of assistance. I answer this question in the
negative.
Section 1 of said chapter 118A provides that adequate assistance to
desei*ving citizens in need of relief and support, who meet certain enumer-
ated requirements, shall be granted under the supervision of the Depart-
ment of Public Welfare, and further provides that assistance shall be on
the basis of need, and the amount thereof shall be determined in accord-
ance with budgetary standards established by the local board of public
welfare and approved by the department. Minimum rates of assistance
for individuals living within or outside of a family group are established.
Section 2 of said chapter provides that each local board of public wel-
fare shall, for the purpose of granting adequate assistance and service
'to such aged persons, establish a division thereof to be designated as the
Bureau of (Jld Age Assistance, which in the performance of its duties is
made subject to the supervision of the Department.
Said petition further provides that in detei-mining the need for financial
assistance, said bureaus shall give consideration to the resources of the
aged person. In considering such resources section 2A sets up a schedule
to be followed relative to the financial ability of a child to support such
person. In connection with the granting of assistance, section 2 confers
authority on the local board of public welfare, "with the approval and
upon the direction of the department," to prosecute a child of the aged
person who is of sufficient ability but who neglects or refuses to contribute
to the support and maintenance of said person. It is also provided by
said section that until such prosecution is completely adjudicated and the
resource in question is actually available to the aged person or persons
P.D. 12. 13
otherwise eligible, assistance to him or them shall not be refused or reduced
by reason of such resource.
In clear language the General Court has charged the Department with
the duty of seeing to it that certain aged persons receive adequate as-
sistance and has provided that the amount of such assistance is to be
computed on the basis of need, subject to a definite minimum fixed by
law. In determining this need resources of the aged person are to be
considered and among these resources is the financial ability of a child
to contribute to the support of his parent. But the General Court has
expressly provided that the amount of assistance the aged person is en-
titled to receive shall not be reduced by reason of such resource until it
is actually available to the aged person.
Hence I advise you that it is the duty of the Bureau of Old Age Assist-
ance and of the Department to provide the assistance awarded in any
given case, reduced only by such resources as are actually available to the
aged person, and that there is no authority in law for the payment of a
lesser amount to the aged person, even with his consent. The payment
of a lesser amount would not be the granting of adequate assistance, as
those words are used in the law, and would not conform to or be con-
sistent with the obvious purpose of the law.
Very truly yours,
Robert T. Bushnell, Attorney General.
Milk Control Board — Orders of Board — Violations — Licenses.
Aug. 16, 1944.
Milk Control Board.
GextleiMen : — You state that :
"From time to time during the period 1939 to 1942, inclusive, certain
orders of the Board were after hearing revised and modified. In each
instance, either by provision in the revised and succeeding order, or by
separate order, the previous orders covering the same subject matter were
rescinded. None of these rescinding orders and no other rescinding order
at any time issued by this Board contained any specific saving clause
with reference to acts in violation of the preceding orders."
With reference to the foregoing you have requested my opinion on
two questions.
^Your first question reads:
"Mav a milk dealer now be subjected to any action under G. L. c. 94A,
§22, as'amended by St. 1943, c. 164 (of under St. 1934, c. 376, § U, as
amended by St. 1937, c. 428, § 2), on account of an act or omission made
or committed by him in violation of an order which was lawfully adopted
by the Board and in force at the time of such act or omission, but which
has since been rescinded?"
I answer your question in the affirmative.
Chapter 94A of the General Laws creates a new Milk Control Board
and provides for the regulation of the milk marketing industry in Massa-
chusetts, and was substituted for chapter 376 of the Acts of 1934, which
was an emergency measure providing for a Milk Control Board and for
the regulation of the milk marketing industry. Section 22 of said chapter
14 P.D. 12.
94 A, as amended, and section 11 of said chapter 376, as amended, referred
to in your first question, are the sections which prescribe penalties for
violation of the respective acts and of rules and regulations made there-
under.
It is clear that violation of a valid order of an administrative board, for
which a penalty is provided by the statute creating the board and giving
the board its powers, makes the offender subject to prosecution or punish-
ment even though the order has been rescinded prior to the time the
action is taken against the violator, notwithstanding the fact that the
rescinding order contains no saving clause.
In the recent case of United States v. Hark et al., 320 U. S. 531, the
Court (in reversing a decision of the District Court for the District of
Massachusetts quashing an indictment for a violation of a Maximum
Price Regulation issued pursuant to the Emergency Price Control Act,
the regulation which the appellees were charged with violating having
been revoked prior to the return of the indictment) says at page 362 :
"We hold that revocation of the regulation did not prevent indictment
and conviction for violation of its provisions at a time when it remained
in force. The reason for the common law rule that the repeal of a statute
ends the power to prosecute for prior violations is absent in the case of a
prosecution for violation of a regulation issued pursuant to an existing
statute which expresses a continuing policy, to enforce which the regula-
tion was authorized. Revocation of the regulation does not repeal the
statute; and though the regulation calls the statutory penalities into
play, the statute, not the regulation, creates the offense and imposes pun-
ishment for its violation."
So long as the statute which prescribes the penalty remains in force, or,
if in the event that it is repealed, there is a saving clause in the repealing
act, the violation can be made the basis of punitive action. (As to the
existence of provisions for imposing a penalty, see opinion of the Attorney
General to the Milk Control Board, dated March 29, 1944, Attorney
General's Report for the year ending June 30, 1944, p. 148.)
It is my opinion, therefore, that the amenability of a milk dealer to
prosecution or other authorized penalty for the violation of an order
made by your Board or its predecessor, committed while said order re-
mained in force, is not affected by the fact that the order was subsequently
rescinded by an order containing no saving clause. Such violations are
now subject to prosecution or other action by the Board whether the
orders which were violated and subsequently rescinded were adopted
under the provisions of G. L. c. 94A, or of St. 1934, c. 376.
Your second question reads:
"May the Board now decline to grant or renew a license applied for by
any milk dealer or revoke a license of any milk dealer pursuant to the
provisions of paragraph (12) or (13) of section 6 of said chapter 94 A on
account of an act or omission made or committed by him in violation of
an order which was lawfully adopted by this Board and in full force at
the time of such act or omission, but which has since been rescinded? "
I answer your question in the affirmative.
G. L. c. 94A, § 6, provides that the Board may decline to grant or renew
a license or may suspend or revoke a license already granted when it is
satisfied of the existence of any of the following reasons:
P.D. 12. 15
"(12) That hp knowingly purchased, received, processed, sold or other-
wise handled milk within the commonwealth in violation of any of the ap-
plicable laws, or of the rules, regulations and requirements of the board; or
(13) That he has violated any provision of this chapter or of similar
provisions of earlier laws, or of an order, rule or regulation of the board
made under authority thereof or of section nine of chajiter twenty."
The Board may use as the basis for action against a dealer under either
of these paragraphs the violation of an order lawfully adopted by the
Board and in force at the time of the act or omission made or committed
by him. The Board may proceed under these paragraphs although action
is not taken until after the order has been rescinded and notwithstanding
the absence of a saving clause in the rescinding provision.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Authority of Director — Seniority of Employees.
Aug. 23, 1944.
Hon. William H. Bixby, Chairman, Civil Service Commission.
Dear Sir: — You have informed me that it has been the custom of the
Division of Civil Service to keep a record of the seniority dates of em-
ployees in the various departments under the Civil Service Law and you
have set forth the manner in which these dates are computed.
You have informed me further that in the city of Springfield it was
necessary to reduce the number of clerks in the Department of Public
Welfare from five to four in order to live within the budget of that depart-
ment. The Board of Public Welfare inquired of the Director of Civil
Service as to the employee who was junior in point of seniority according
to the computation of the Director of Civil Service, and upon receipt of
this information demoted that employee. The employee so demoted has
appealed to the Civil Service Commission.
With reference to the foregoing you have requested my opinion on two
questions.
Your first question reads:
"Has the director the authority to compute seniority dates of employ-
ees in the classified public service which will bind appointing officers in
determining the order of layoffs or demotions or reinstatements after lay-
offs or demotions, under the provisions of G. L. c. 31, § 46G?"
I answer this question in the negative.
G. L. (Ter. Ed.) c. 31, § 46G, provides:
"If the separation from service of persons in the classified service be-
comes necessary through no fault or delinquency of their own, they shall
be separated from the service, and reinstated therein in the same position
or in a position in the same class and grade as that formerly held by them,
according to their seniority in the service so that the oldest employees in
point of service shall be retained the longest, and reinstated first and
before any reinstatement under section forty-six C or the certification of
new names. Nothing in this section shall prevent reinstatements under
16 P.D. 12.
section forty-six D or impair the preference provided for disabled veter-
ans by section twenty- three."
I find nothing in the above-quoted section, in chapter 31 generally, or
in the rules and regulations made thereunder, which confers upon the
Director the authority to determine the seniority of persons in the classified
service in case of their separation from the service through no fault or
delinquency of their own, which determination is made binding upon
appointing officers. Such computation may be made by the appointing
officer himself.
it is to be noted that section 38 of said chapter 31 provides:
"If, in the opinion of the director, a person is appointed or employed
in the classified pubhc service in violation of any provision of this chapter
or of any rule or regulation made thereunder, the commission or the
director shall, after notice in writing mailed to the appointing or em-
ploying officer, department, board or commission, and to such person,
notify in writing the treasurer, auditor or other officer whose duty it is
to pay the salary or compensation of such person, or to authorize the
drawing, signing or issuing of any warrant therefor; and the payment of
any salary or compensation to such person shall cease at the expiration
of one week after the mailing of the notice to such treasurer, auditor or
other officer, and no such officer shall pay any salary or compensation to
such person, or draw, sign or issue, or authorize the drawing, signing or
issuing, of any warrant therefor, until the legality of such appointment
or employment is duly established."
Rule 23 of the Civil Service Rules, entitled "Reappointment and Re-
instatement", section 2, authorizes the "Commissioner", now called the
"Director", to place on a "Special List" the name of any person who is
separated from the service without fault or delinquency on his part, if the
applicant so requests in writing, and his name shall remain on such " Special
List" for a period of two years from the date of such separation. "There-
after, on requisition to fill any position, which in the judgment of the
Commissioner can be filled from such Special List, the Commissioner,
before certifying from the regular eligible list, may certify from the Special
List the names of persons then standing thereon in the order of the dates
of their original appointment, and appointment shall be made from the
names so certified."
The foregoing provisions of law implicitly authorize the Director to
make computations of the seniority date of employees who are subject
to the Civil Service Law and the rules and regulations made thereunder,
for the purpose of discharging the duties incumbent upon him, but I find
no authority for the proposition that computation so made shall be binding
upon appointing officers in determining the order of layoffs or demotions
or reinstatements after layoffs or demotions.
The purpose of the foregoing provisions of law is that "supervision of
reinstatement of those separated from the public service" may be main-
tained. Police Commissioner of the City of Boston v. Commissioner of Civil
Service, 278 Mass. 507, at 509.
Your second question reads :
"If the director has authority to make such a binding computation and
no particular plan is required by law, is the manner in which the director
IM). 12. 17
computes seniority for the purpose above referred to subject to review
by the Civil Service Commission?"
Mj'^ answer to your first question makes it unnecessary to answer your
second question.
Very truly yours,
Robert T. Bushxell, Attorney General.
Civil Service — Supervising Boiler Inspector in Department of Public
Safety not Classified.
Aug. 29, 1944.
Hon. Thomas J. Greehan, Director of Civil Service.
Dear Sir: — You have asked my opinion as to whether or not the
designation and assignment of a Boiler Inspector as Supenising Boiler
Inspector by the Commissioner of Public Safety is subject to the provisions
of G. L. (Ter. Ed.) c. 31, and the Rules and Regulations made thereunder.
I answer your question in the negative.
In an opinion of the then Attorney General to the Director of Civil
Service on October 14, 1943 (Attorney General's Report for the year ending
June 30, 1944, p. 89), it was decided that the Commissioner of Pubhc
Safet}^ could designate and assign permanently to the position of Super-
visor of the State Police Detective Bureau one of the State Police Detective
Inspectors without the approval of the Division of Civil Service. The
considerations set forth in that opinion govern the present inquiry.
The position of Supervising Boiler Inspector has not been specifically
placed under the Civil Service Law either by legislative enactment or by
rule of the Division of Civil Service. It is not included within the estab-
lished classifications of Rule 4 of the Civil Service Rules. That rule con-
tains references to "boiler inspectors" and "inspectors." The position of
Supervising Boiler Inspector, like the position of Supervisor of the State
Police Detective Bureau, is one of supervisory duties and powers, as
its name implies, and hence is different from that of "boiler inspector" or
"inspector." The fact that the salaries of the two positions of Boiler
Inspector and Supervising Boiler Inspector are different does not, in and of
itself and as a matter of law, make a change of position from the one to the
other a promotion within the meaning of said chapter 31 or the Rules and
Regulations made thereunder.
As stated in the opinion of October 14, 1943, above referred to, the Civil
Service Commission may, if it feels that the public interest so requires,
amend its rules in accordance with law to include this position within
those subject to the Civil Service Law and Rules.
Very truly yours,
Robert T. Bushnell, Attorney General.
War Emergency Fund — Transfer of Funds — A uthority of Governor.
Aug. 29, 1944.
Hon. Walter S. Morgan, Comptroller.
Dear Sir: — You request my opinion on three questions relative to
the "limitation on expenditures from the War Emergency Fund as set
18 P.D. 12.
forth in St. 1943, c. 370, § 10." You have informed me concerning the
practical operation of this fund, and state that:
"Upon request and recommendation as provided in the statute, the
Governor and Council have made the funds available to the spending
agencies (a) by transfer to an existing appropriation or (b) by authoriza-
tion in all other cases. When such transfers and authorizations have been
made by the Governor and Council they are recorded in appropriate
accounts on the Commonwealth's books to show the funds are available
to the amount and for the purpose designated."
Your first question reads :
"In your opinion can the Governor and Council legally make such
transfers and authorizations after January 3, 1945?"
I answer this question in the negative.
Section 10 of chapter 370 reads:
"To provide for divers emergency expenditures which may be neces-
sary to meet any emergency which may arise by reason of the exigencies
of the existing state of war and to meet deficiencies in existing appropria-
tions, there may be expended under the direction of the governor sums
not exceeding seven million dollars in the aggregate, and for said pur-
poses there is hereby appropriated from the General Fund the sum of two
million dollars and from the Highway Fund the sum of two million dollars
which amounts shall be available for expenditure on and after July first
in the current year, and said amounts, together with any unexpended
balance remaining from the funds previously provided under chapter
eighteen of the acts of nineteen hundred and forty-two, are to be credited
on the books of the commonwealth to a fund to be known as the War
Emergency Fund. • All expenditures hereinbefore referred to shall be sub-
ject to the approval of the council. Requests for any such expenditures
shall be referred by the governor to the commission on administration
and finance, which, after investigation of the need of such expenditure,
shall forthwith submit to the governor its written recommendation of the
amount of funds required, together with pertinent facts relative thereto.
All expenditures authorized .under this section and the employment of
persons whose positions have been created by reason of monej^ made
available by this section shall cease not later than thirty days after the
governor, with the advice and consent of the council, shall have pro-
claimed that the existing emergency has ended, and no new obligations
may be authorized after January third, nineteen hundred and forty-five."
The authority of the Governor to expend sums from the War Emer-
gency Fund, subject to the approval of the Council, whether by transfer
to an existing appropriation or by authorization, is limited by express
provision in said chapter 370 that —
". . .no new obligations may be authorized after January third, nine-
teen hundred and forty-five."
Each request for expenditure relates to a "new obligation," whether
or not the subject matter of the request remains the same as that set
forth in a previous request. Therefore, the limitation as above set forth
may be interpreted as though it read :
IM). 12. 19
". . .no obligations may be authorized after January third, nineteen
hundred and forty-five."
Read in this manner, it is clear that the intent of the Legislature was
to empower the Governor and Council to make authorizations and trans-
fers for expenditures from the War Emergency Fund up to and including
January 3, 1945, but not thereafter.
Your second question reads :
"In the cases where such transfers and authorizations shall have been
made up to January 3, 1945, will the funds so made available be available
for expenditure, subject to allotment, for the same purposes as before until
such funds are exhausted?"
I answer this question in the affirmative, subject to the limitation here-
inafter set forth. It is apparent from the entire context of chapter 370
that th(^ Legislature intended that funds previously allocated to a spend-
ing agency should in the interest of the i^ublic welfare be available after
January 3, 1945, as well as prior thereto. The time within which the
allocated funds must be expended is limited by two provisions of law:
(a) The act itself provides that the Governor, with the advice and con-
sent of the Council, may proclaim that the existing emergency has ended,
and all expenditures authorized must cease not later than thirty days
thereafter; and
(b) G. L. (Ter. Ed.) c. 29, § 14, in its pertinent part, provides:
"An appropriation for any purpose other than ordinary maintenance,
. . . shall not be available for more than two years after the effective
date of the appropriation act ... In either case payments to fulfill con-
tracts and other obligations entered into within the said two years may
be made thereafter."
Funds allocated to spending agencies whether by transfer to an existing
appropriation or by authorization may be expended not later than two
years subsequent to June 1, 1943, the effective date of the act setting up
the War Emergency Fund, except that payments to fulfill contracts and
other obligations entered into within the said two years may be made
thereafter.
Your third question reads :
"Or beginning January 3, 1945, will such funds be restricted to the pay-
ment of liabilities previously' incurred, or in any other way?"
I answer this question in the negative for the reasons set forth in my
answer to your second question.
Very truly yours,
Robert T. Bushnell, Attorney General.
Milk Control Board — Public Announcement of Prices to be Paid by
Individual Milk Dealers.
Sept. 18, 1944.
Mr. Louis A. Webster, Acting Chairman, Milk Control Board.
Dear Sir: — You have informed me concerning the three existing
price plans established by the Milk Control Board to regulate the purchase
^'J P.D. 12.
of milk by milk dealers from producers: the Flat Price Plan, the Com-
posite Price Plan, and the Base Rating Plan. You have explained that
under either of the latter two plans as now administered each dealer
calculates his own composite or base and excess price, subject to later cor-
rection by the Milk Control Board, so that he may, after payment to his
producers in accordance with his own calculations, be called upon to
make further supplemental payments if the Board finds his computations
to have been too favorable to himself.
You have informed me further that, "In many milk marketing areas
administered by other milk control agencies . . . each dealer using a
composite or base rating plan is required promptly after the close of each
delivery period to report to the controlling agency his receipts and sales
of milk for the period. On the basis of such reports the agency, prior to
the date when payment is due, computes and makes public announcement
of the composite or base and excess prices the dealer should pay for such
period. The Lowell-Lawrence market is at present so administered under
joint Federal-State control.
"It has been repeatedly urged upon this Board by producer organiza-
tions and by some dealers that the principal secondary markets of Massa-
chusetts should be placed on the same basis by order of the board, and
each dealer's composite or base and excess prices be calculated by the
Director of Milk Control and announced in advance of the date on which
payment is due."
With reference to the foregoing, you have asked my opinion upon the
following questions:
If the Division of Milk Control were to make periodic public announce-
ments, as to any marketing area, of the names of all dealers purchasing
milk for distribution in such area, adding "after the name of each dealer
who is purchasing milk either on the flat or on the composite price plan,
the flat or composite price per hundredweight which such dealer should
pay for all milk received from producers during such period, and after
the name of each dealer who is purchasing milk on a base rating plan, the
base and excess prices per hundredweight which such dealer should pay
respectively for all base and all excess milk received by him from pro-
ducers during such period, "
(1) Would such an announcement be violative of G. L. (Ter. Ed.)
c. 94A, § 13 (rf), as to dealers purchasing milk on the composite price plan,
having in mind that the publication of such a dealer's composite -price
would disclose the percentages of his receipts of milk disposed of for Class I
use (milk to be distributed for beverage purposes) and for Class II use
(milk disposed of for the manufacture of dairy products)?
(2) Would such an announcement be violative of said section 13 {d)
as to dealers purchasing milk on the base rating plan, having in mind
that the publication of such a dealer's base and excess price would disclose
(a) whether his Class I sales were greater or less than his "base milk
receipts" (the "base" being an arbitrary daily quota assigned to each
producer, usually equal to that percentage of his average daily delivery
of milk during the prior "base period" which was, during such period,
sold by the dealer as Class I), (6) if they were greater, the percentage of
excess milk (milk delivered by the producer in excess of his daily base)
sold as Class I, and the percentage sold as Class II, and (c) if they were
I
P.D. 12. 21
less, the percentage of his receipts of base milk sold as Class I and the
percentage sold as Class 11?
I answer your question in the affirmative.
G. L. (Ter. Ed.) c. 94A, § 13 (d), provides that "The information ob-
tained by an}' inspection authorized or reports required by this chapter
or by similar provisions of earlier law shall be treated as confidential and
shall not be disclosed by any person except as may be required in the
propcn- administration of this chapter; provided, that the board may use
such information together with other similar information, for compilation
and publication of statistics of the milk industry in this commonwealth.
Such statistics shall not contain the name of, or disclose, by inference or
otherwise, information obtained from the books and records of any milk
dealer."
Your letter states that the basis for any such public announcement as
you describe would be "either through inspection authorized by said
chapttn- 94A ... or through a report required ... by order of the board
issued under said chapter. " It is, of course, obvious that such an announce-
ment would effect a disclosure of the information so obtained. Unless,
then, the publication of such information can be said to be "required
in the proper administration of this chapter," within the clause of the
statute excepting such matters from its operation, said section 13 (d)
prevents the execution of the plan described in your letter.
The statutory prohibition against disclosure of information exists or
does not exist, in any particular case, quite apart from the question of
the cpiantum of the harm to any individual resulting from the disclosure:
hence, it is immaterial whether a dealer operates on the composite price
plan or upon the base-rating plan. The publication of any information
concerning him, obtained by inspection or report, when not "required in
the proper administration of this chapter," falls within the ban of the
statute.
It is not apparent from the substance of your letter that the practice
proposed by you is "required in the proper administration of this chapter."
While there may be little question that the Board's official predetermina-
tion of prices would be most salutary and little argument that notification
of such determination should be given to each dealer prior to the date of
payment, it does not appear that the public announcement of prices to be
paid by each named dealer in each marketing area should be necessary
to effectuate this result. Nothing in the statute, of course, would prevent
the Board from notifying each dealer of the results of its computation of
prices to be paid by him.
Again, the plan for price announcements outlined in your letter calls
for the periodic publication of the names of individual dealers as well as
of information obtained from their books and records. Since the proposed
announcements would be, in a very real sense, "statistics of the milk
industry," compiled and published by the Board, the second sentence of
said section 13 (rf) affords a complete and affirmative answer to your first
two questions.
The answers to the foregoing questions being in the affirmative, it
becomes unnecessary to consider your third question relative to the
propriety of publishing the proposed announcement in the event that
either of the foregoing questions be answered in the negative.
•Very truly yours,
Robert T. Bushnell, Attorney General.
22 P.D. 12.
Department of Public Health — Transportation of Shellfish — Certificate of
Foreign Board.
Sept. 19, 1944.
Dr. Vlado a. Getting, Commissioner of Public Health.
Dear Sir: — You have asked my opinion as to whether you may ap-
prove certificates for the transportatio^i into the Commonwealth of shell-
fish from Canada, for consumption as food, in a form which I assume
complies with that required as to the purity of shellfish by G. L. (Ter.
Ed.) c. 130, § 81, as amended, issued by the Department of Pensions and
National Health of Canada.
Said section 81 forbids the transportation into the Commonwealth of
shellfish, unless there is on file with your department a certificate approved
b}^ it from a state board of health or other board or officer having like powers
of the state, country or province in the areas outside Massachusetts from
which the shellfish were dug or taken.
Section 81 also provides with regard to such certificate that —
"No such certificate shall be approved by the department of pubHc health
which does not meet the provisions of the laws, rules, regulations and re-
quirements of the United States as to interstate commerce in shellfish."
You inform me that the United States authorities advise you that they
have no authority to submit an "approved list" so far as Canadian cer-
tificates are concerned.
The United States authorities under the Federal Food and Drug Act,
U. S. C. Aj Title 21, as amended, have authority to require the withdrawal
from interstate commerce of imported articles of food which are likely to
be injurious to the public health. If, as appears from the communications
which you have submitted to me, the United States authorities permit the
importation and shipment of shellfish from Canada, it would seem that a
certificate from a Canadian authority having the powers of a board of
health for Canada certifying the facts required by said section 81 with
relation to the purity of such shellfish could not be said "not" to "meet
the provisions of the laws, rules, regulations and requirements of the
United States as to interstate commerce in shellfish."
Accordingly, if the Department of Pensions and National Health of
Canada is such a board as is specified in said section 81, you would have
authority to approve its certificates if in compliance with the other provi-
sions of said section 81.
Very truly yours,
Robert T. Bushnell, Attorney General.
Insurance — Group A nnuity Policy — Dividends — Terms of Insur-
ance Contract.
Sept. 29, 1944.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir: — You have informed me that heretofore the Division of
Insurance has required :
" each contributory group annuity policy form to* contain, among other
provisions required by law, a stipulation which in substance requires the
P.D. 12. 23
policyholder to distribute the dividends receivc^d under such contract to
the premium payers in the same proportion in which premium contribu-
tions to the contract were made . . .
A domestic mutual life insurance company ha\iu<;- had a policy form
approved, said form containing a provision in substance which required
the holder of the master policy to distribute dividends equitably to the
premium j^ayers in the ])rop()rtion to which th(\y had contributed to the
same, has now submittecl to the Department a form of rider to l)e attached
to the previously approved form of group annuity contract, thereby con-
stituting a part of the contract, said rider form amending the afore-
mentioned provision in the policy form by substituting therefor the
following :
'The company (issuer) shall annually ascertain and apportion any
divisible surplus accruing under contracts of this class. Any such divisible
surplus apportioned to this contract shall be applied toward the payment
of employer's future servic(> contributions or past service considerations
falling due hereunder, unless retirement annuity purchases hereunder have
been discontinued in accordance with Section 6 of Article 3 in which event
any such divisible surplus shall be paid in cash to the employer.' "
You have advised me that the contract to which you refer is one issued
to an employer through a master policy covering employees to whom
certificates showing their interest therein are issued.
With relation to the foregoing you have asked my opinion upon the
following question :
"Is the Commissioner authorized under sections 4, 132 and 192 of chap-
ter 175 to disapprove the rider form outlined above on the ground that
the proposed dividend stipulation is not equitable in that it does not
require the policyholder to disburse the dividends to the premium payers
in the same proportion in which the premium contributions to the con-
tract were made?"
Whether or not the proposed stipulation that the dividend surplus
which may be apportioned to an annuity group insurance contract shall
be applied toward the payment of the premiums due from the employer,
the holder of the master policy, without distribution by him to the various
employees, members of the group who are covered by the policy and who
also pay premiums, is fair and equitable, is a question peculiarly for the
determination of the Commissioner, involving, as it does, numerous factual
considerations.
Inasmuch as the provisions of G. L. (Ter. Ed.) c. 175, § 4, as amended,
require the Commissioner to ascertain "the equity of" a domestic insur-
ance company's "dealings with its policyholders," he has by implication
the authority to refuse to give the approval, which a company must seek
from him under G. L. (Ter. Ed.) c. 175, §§ 132 and 192, of annuity con-
tracts and riders, to those contracts and riders which he det(M-mincs to be
unfair and inequitable toward policyholders.
Various factual matters exist which must be taken into consideration
in relation to the fairness of the proposed stipulation. You have informed
me that the expense of bookkeeping and distribution involved in paying
over small proportions of an allotted portion of dividend surplus to nu-
merous and scattered premium payers under a group annuity contract is
often so great that it may al-)soi-b the employer's entire share of the divi-
24 P.D. 12.
dend or even exceed it. In forming your determination this consideration
is to be weighed by you, with other facts connected with the relation of
the parties to a group contract of this character. The Attorney General
does not pass upon questions of fact. Although the mode of distribution
provided by the proposed rider does not on its face appear to be equitable,
there may be factual considerations involved which will affect your de-
termination. A mode of distribution similar to that provided by the
proposed rider has been specifically authorized by the Legislature of New
York (N. Y. Const. L. c. 628, ^ 216, par. 2).
In answer to your question I advise you that if you determine that the
provisions of the proposed rider are unjust to employees covered by the
group annuity contract and unfairly enrich the employer, you should not
approve the rider. If, on the other hand, you find that under all the cir-
cumstances they are fair and equitable, you should give your approval.
Very truly yours,
Robert T. Bushnell, Attorney General.
Civil Service — Custodian of Contraband in Department of Public Safety — ■
Failure to Classify.
Sept. 29, 1944.
Hon. John F. Stokes, Commissioner of Public Safety.
Dear Sir: — You have asked my opinion as to whether the position
of "Custodian of Contraband and Evidence" in the Department of Public
Safety is subject to the Civil Service Law and Rules.
I am of the opinion that the position is not subject to the Civil Service
Law and Rules.
You inform me that the position in question was formerly called "Con-
traband Handler" and that in 1943 its title was changed to that of "Cus-
todian of Contraband and Evidence" and was classified, apparently under
G. L. (Ter. Ed.) c. 30, § 45, by the Division of Personnel and Standard-
ization, with the approval of the Governor and Council, in the following
manner :
Salary Range
Base Salary under c. 170,
Range. 1943.
"Custodian of Contraband and Evidence . . 1800-2280 2070-2622
Definition of Class: Duties: Under direction to collect money, goods
or other property which has been stolen, lost, abandoned or taken from
a person under arrest; to identify and act as custodian of evidence
obtained and held at department headquarters pending court trial or
other legal disposition; to assist in or be in charge of transportation of
such propert}^, and evidence and of forfeited liquor, firearms and other
confiscated dangerous weapons; to represent the Commissioner of Pub-
lic Safety in taking of warrants and disposing of forfeited articles; to
assist in the sorting and destruction of forfeited liquor and otherwise
to help in its final disposition in accordance with the law; and to per-
form related work as required."
By G. L. (Ter. Ed.) c. 22, § 6, the Commissioner of Pubhc Safety is
authorized to appoint and remove "assistants" in his department. There
is nothing in its phraseology which would appear to indicate an intention
P.D. 12. 25
on the part of the Legislature that the positions of such assistants, of
whom the "Custodian of Contraband and Evidence" is one, should be
outside the sweep of the Civil Service Law.
However, with the exception of certain positions which have been
definitely specified by the Legislature (G. L. (Ter. Ed.) c. 31, § 4), only
such positions in the pui)lic service as are brought thereunder by the rules
and regulations of the Civil Service Commission (O. L. (Ter. Ed.) c. 31, § 3)
are subject to the Civil Service Law.
Rule 4 of the Civil Service Rules provides :
"1. All persons performing duties or rendering scivice in any of the
offices and positions and classes of positions classified by statute, or in any
of the following offices and positions and clashes 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, and the selection of persons to fill such
appointive offices or positions in the government of the Commonwealth
... is subject to the Civil Service Law and Rules.
The following classes . . . apply to both the Commonwealth and the
several cities thereof: —
Class 24. Janitors, custodians, and persons employed in the care of
schools, or other public buildings."
The Civil Service Commission has set up no class of custodians of personal
property. It is obvious from the "Definition of Class" set up by the
Division of Personnel and Standardization, already quoted, that the in-
cumbent of the position under consideration is a custodian of personal
property' only and is not employed in the care of public buildings.
It is apparent from the phraseology employed in describing "Class 24"
that the "custodians" therein referred to, like the other employees men-
tioned therein, are persons having the care of schools or other public
buildings and that persons having the care of personal property onh' do
not render the same or similar service to that required of those employees
mentioned in Class 24 and are not comprehended as members of such
class.
I am informed that it has recently been the contention of the Division
of Civil Service that the position in question falls within Class 24. Such
a contention is not as a matter of law a reasonable one, in view of the
phraseology used by the makers of the rules in describing the employees
who constitute this class.
There is no other class estabHsh(>d by the rules which can reasonably be
said to include a custodian of personal property having such duties as are
set forth in the quoted "Definition of Class" set up by the Division of
Personnel and Standardization.
It follows that the position in question has not been so classified by the
Civil Service Commission in its rules as to bring it within the provisions
of the Civil Service Law.
Very truly yours,
Robert T. Bushnell, Attorney General.
26 P.D. 12.
Municipalities — Public Assistance — Amounts Payable for Hospitalization.
Oct. 13, 1944.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir : — You have asked my opinion upon the five following questions
with relation to the limit which is placed by the statutes upon the amount
which cities and towns may pay for hospital services rendered recipients of
public assistance.
" 1. May a town pay more than S4.00 per day for hospitalization either
by contract or in the absence of a contract?
2. If the town does so pay, may it collect the full amount from the
town of settlement or the Commonwealth if unsettled, as the case may be,
if the patient is not settled in the town where aided?
3. If the town in any case is limited to payment of S4.00 per day for
hospital care, may the town pay an additional amount for so-called extras
such as operating room fees, laboratory fees, X-ray services, or private
room charges?
4. May the town of settlement or this department, as the case may be,
reimburse for such extras in excess of $4.00 per day?
5. If question 4 is answered in the negative, may a town pay and be
reimbursed for unusual items procured by the hospital especially for the
patient such as special nursing services, blood, blood plasma, penicillin,
oxygen, and special serums?"
Questions 1 and 3 relate solely to the authority of cities and towns to
make expenditures and are not connected with reimbursement by the
Commonwealth. You have no duties to perform with relation to such
expenditures and as these two questions are hypothetical as far as con-
cerns your office, I must respectfully decline to answer them in accordance
with the long-continued practice followed by my predecessors in office
with relation to hypothetical questions.
In answer to your second question, I advise you that a city or town may
not collect from the Commonwealth in reimbursement for payments made
by it for hospital services rendered to unsettled persons or to those settled
in another town a greater amount than S4.00 a day for such services.
G. L. (Ter. Ed.) c. 122, § 18, as amended by St. 1943, c. 476, provides
in its applicable part:
"Reasonable expenses incurred by a town under section seventeen
(which relates to the hospitalization of certain sick persons) . . . shall be
reimbursed by the commonwealth . . . There shall be allowed for the
support of a person in a hospital such amounts, not exceeding four dollars
a day, as may be provided by rules and regulations. . . ."
The context of section 18 indicates that the amount to be "allowed for
support" refers to the amount to be paid by the Commonwealth as re-
imbursement to a town for the hospital expenses of persons liable to be
maintained by the Commonwealth. It is plain from the phraseology of
the section that the Commonwealth may in no event reimburse a town for
expenses of hospitalization greater than $4.00 a day.
In answer to your fourth question, I advise you that the Common-
wealth may not reimburse a town for any charge or charges in excess of
P.D. 12. 27
$4.00 a day connected with hospitalization such as you have described in
3'our third question.
I refrain from answering; that part of question 2 and question 4 which
refers to the amount which may be collected from the town of settlement,
for the reasons set forth in my answer to questions 1 and 3.
In answer to your fifth question, I advise you that the Commonwealth
may not reimburse a town for any charge or charges in excess of $4.00 a
day for any of the items mentioned in the fifth question. The only excep-
tion to the statutory limitation of reimbursement to $4.00 a day is that
contained in the last sent(^nce of the amendment of said section 18 as set
forth in said 8t. 1943, c. 476, namely, that there shall be reimbursement for
the expense of tonsil and adenoid operations to the extent of $15.00, which
amount is payable irrespective of the expenditure per day.
\^ery truly yours,
Robert T. Bushnell, Attorneij General.
Workmen's Compensation — Self-I nsurer — Bonds.
Oct. 23, 1944.
Mrs. Emma S. Tousant, Chairman, Department of Industrial Accidents.
Dear Madam: — You have informed me that a self-insurer of work-
men's compensation, licensed under the provisions of G. L. (Ter. Ed.)
c. 152, § 25 A, notified your department that it would cease to do business
on January 17, 1944, and that your department revoked the license as of
that date. You further state that in accordance with said section 25A
(2) (b), demand was made upon the self-insurer for a deposit; that the
self-insurer failed to comply with the notice and made no demand for a
hearing to which he would have been entitled under said section 25A (3).
if he had requested it within ten days after the receipt of such notice ; and
that thereafter similar demand was made upon the surety on the bond
given by him under said section 25A (2) (6).
It would appear from the statements in the letter which you have
written me that this self-insurer qualified as such by furnishing to the
State Treasurer a corporate surety bond in the amount of $20,000 upon
the condition (as required by said section 25A (2) (6) :
"that if the license of the principal shall be revoked . . . 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
polie^^"
The self-insurer, therefore, did not qualify, as he might have done under
said subparagraph (a), "by keeping on deposit . . . such amount of securi-
ties ... as may be required by the department, said securities to be in
the form of cash, bonds, stocks or other evidences of indebtedness."
You have directed my attention to said section 25A (4) which reads:
"Such expenses as shall be determined by the department of administra-
tion and finance as necessary to carry out the provisions of this chapter
relating to self-insurance shall be assessed against all self-insurers, includ-
ing for this purpose employers who have ceased to exercise the privilege
of self-insurance but whose securities are retained on deposit in accordance
with the rules of the department. The basis of assessment shall be the
28 P.D. 12.
proportion of such expense that the total securities deposited by each
self-insurer or penal sum of bond or bonds furnished by each self-insurer
at the close of each fiscal year bears to the total deposits and bonds of all
self-insurers. All such assessments when collected shall be paid into the
state treasury."
— and you have informed me that you have determined and assessed as
against the said self-insurer who has ceased to exercise the privilege of
self-insurance the proportionate part of the total expense of carrying out
the provisions of chapter 152 relating to self-insurers.
You have asked my opinion as to whether your mode of determining
the amount to be assessed against the said self-insurer is correct as a matter
of law.
Before passing upon this question it is necessary to determine whether
this self-insurer, who has qualified under subparagraph (6) and not under
subparagraph (a) and has on deposit only a corporate surety bond and
not cash, bonds, stocks or other investments which are evidences of in-
debtedness, is within the class of employers who have ceased to exercise
the privilege of self-insurance but who, notwithstanding, are to be assessed
a proportionate part of the expenses of administration because they have
"securities . . . retained on deposit in accordance with the rules of the
department."
When this employer ceased to be a self-insurer on January 17, 1944, he
had no securities which have been retained on deposit, and he has deposited
none since, unless the corporate surety bond which he furnished in lieu of
the deposit of "securities" referred to in subparagraph (a) is to be con-
sidered as a security such as is comprehended by the word "securities" in
the phrase "securities retained on deposit" as used in said subsection (4).
I am of the opinion that such a bond is not to be considered as one of
the "securities" comprehended by the words "securities . . . retained
on deposit" in said subsection (4). Consequently, an employer who has
ceased to be a self-insurer and has on deposit nothing but a corporate
surety bond furnished by him under subparagraph (6) is not to be in-
cluded among those upon whom the expenses of administration may be
assessed after the date when he has ceased to be a self-insurer.
I am confirmed in my opinion by the fact that in said subsection (4)
when making provision for the basis of an assessment of administration
expenses, the Legislature has clearly differentiated between "securities"
deposited by self-insurers and the "bonds" such as the corporate surety
bond under consideration, furnished by self-insurers, and that a similar
differentiation appears to have been made by the Legislature throughout
the phrases of said subparagraphs (a) and (6) when the words "security"
or "securities" and the words "bond" or "bonds", referring to corporate
surety bonds, are used.
Accordingly, I advise you that in my opinion you may not assess any
part of the expenses of administration against an employer who has
ceased to be a self-insurer and has on deposit nothing but a corporate
surety bond given under the provisions of said subparagraph (b), for a
period subsequent to the revocation of his license as such self-insurer.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. . 29
Public Officers — Salaries while in Military Service.
Oct. 24, 1944.
Hon. Francis X. Hurley, Treasurer and Receiver General.
Dear Sir: — You have asked my opinion upon the following question:
"Will you kindly advise me if a register of probate who enters the
military service, his place being filled under the provisions of section IIC
of chapter 708 of the Acts of 1941 inserted by section 5 of chapter 548 of
the Acts of 1943, is entitled to receive his salary while in said service?"
I answer your question in the affirmative.
St. 1941, c. 708, § 1, as last amended by St. 1943, c. 548, 5 1, provides
in part :
" ai' ' ^"-^ person who . . . 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 ... so serve . . . shall ... be deemed to be ... on leave of
absence; ..."
It is not provided that officers generally shall be deemed to be on leave
of absence without compensation, and, in the absence of an applicable
provision specifically taking away or reducing the salary of a public officer
on leave of absence, the ordinary principle of law that the salary attached
to a public office is incident to title to the office itself and not to the exer-
cise of the functions of the office applies. 46 C. J. p. 1015; Fitzsimmons v.
Brooklyn, 102 N. Y. 536. The fact that a public officer has not performed
the duties of his office does not deprive him of the right to receive his
salary (46 C. J. pp. 1015, 1016; Leonard v. Terre Haute, 48 Ind. App.
104) unless his failure of performance is so great as to amount to an aban-
donment of the office (see Phillips v. Boston, 150 Mass. 491, 493; At-
torney General's Report, 1941, pp. 56, 59). Any possibility of such an
abandonment by one leaving his office for the purpose of entering the
military service of the United States is precluded by the provisions of said
chapter 708, section 1, which create a presumption of a leave of absence
under such circumstances.
With respect to certain officers, the Legislature has specifically provided
by applicable provisions that their mihtary leaves of absence shall be
without full compensation. Among these are certain elected municipal
officers (St. 1941, c. 708, $ lOA, as amended), certain town officers (said
c. 708, § 11, as amended), and certain elected district officers (said c. 708,
§ 11 A, as amended).
The Legislature has also specifically provided by applicable provisions
of said chapter 708, section IIB, that elected county officers on such leaves
of absence shall be without full compensation, their salaries being reduced
by one-half while on such leave. The Legislature appears to have made a
determination in said section IIB that registers of probate are county
officers, but has by express provision excluded them from the scope of the
provisions reducing salaries. No provision applicable to them appears
in the statute whereby their military leaves of absence are established as
leaves without full salaries.
30 P.D. 12.
In its pertinent part said section IIB reads:
"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 . . . may . . . appoint an acting officer. . . .
. . . The salary or compensation paid to the elected official on leave of
absence shall be one half of the amount fixed for the office ..."
Section IIC of said chapter 708, as amended, provides for the appoint-
ment of a temporary register of probate to perform the duties of the
register while the latter is on a military leave of absence, sets the compensa-
tion of such temporary register as the same salary fixed for the position of
register, and makes no provision for any lessening of the compensation
of the register while the latter is on military leave of absence.
Accordingly, I advise you, as I have already indicated, that a register
of probate who leaves his office for the purpose of entering the military
services of the United States is entitled to receive his salary, which, under
the provisions of G. L. (Ter. Ed.) c. 217, § 35, is to be paid by the Common-
wealth.
Very truly yours,
Robert T. Bushnell, Attorney General.
Old Age Assistance — Husband and Wife Owning Real Estate in Common —
Security for Reimbursement of Municipality.
Oct. 24, 1944.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — You have asked my opinion as to whether a husband and
wife owning in common real estate upon which they reside, having an
equity of $5,030, are required to execute a bond and mortgage in the
amount of S2,030, to reimburse a municipality for old age assistance to be
given them.
I am of the opinion that they are not required to execute such a bond.
G. L. (Ter. Ed.) c. 118A, § 4, provides in part:
"The ownership of an equity in vacant land from which no income is
derived or in real estate upon which an applicant actually resides shall
not disqualify him from receiving assistance under this chapter; provided,
that if such equity, . . . exceeds an average of three thousand dollars
during the five years immediately preceding his application, the board of
public welfare of the town rendering such assistance, or the bureau of old
age assistance . . . shall . . . require such applicant to execute a bond
in a penal sum equal to the amount of the equity in excess of three thousand
dollars, . . . conditioned on repayment ... of all amounts of such
assistance, without interest, such bond to be secured by mortgage upon
the applicant's real estate. ..."
It cannot reasonably be said that the equity owned by one of the tenants
in common in such a parcel of real estate exceeds $3,000 because the total
equity therein is greater than such sum. The words "the ownership of an
equity ... in real estate upon which an applicant actually resides shall
not disqualify him" refer to equitable rights which enrich a particular
applicant and as to these there is an exemption in his favor in the amount
P.D. 12. 31
of $3,000. A tenant in common cannot bo said to be enriched by that
.share of the total equitable rights in a piece of real estate which inure to
the other tenant.
If the Legislature had intended to provide that in the case of tenants in
common or in the case of such ownership by husband and wife the exemp-
tion of equitable rights to the extent of $3,000 should not apply it would
doubtless have used language appropriately expressing an exception to
the general rule set forth in said section 4.
It follows that a city which has furnished old age assistance to both a
husband and wife owning real estate, upon which they reside, having a
value of $5,030 above the amount of a mortgage, without taking a mortgage
bond from them, is entitled to reimbursement for the assistance so fur-
nished under the provisions of section 8 of said chapter 118 A.
Very truly yours,
Robert T. Bushnell, Attorney General.
Metropolitan District Commission — Transjer of Supervision of
Mystic Lakes — Lack of Authority.
Nov. 8, 1944.
Hon. Eugene C. Hultman, Commissioner, Metropolitan District Comission.
Dear Sir : — You have asked me whether your Commission may trans-
fer "the supervision and maintenance of the Mystic Lakes in Arlington
and Winchester from the Water Division to the Parks Division."
You state that these lakes were originally a source of water supply. I
assume from what you further state that although not used for such pur-
pose for many years they could again be so used after reconstruction.
I am informed by your department that these lakes were acquired by
the old Metropolitan Water Board, of which your department is the
successor, under the provisions of St. 1895, c. 488, which authorized the
acquisition of waters for the purpose of water supply.
It is a general principle of law that real property "appropriated to one
public use cannot be diverted to another inconsistent public use without
plain and explicit legislation to that end." Higginson v. Treasurer, d'C. of
Boston, 212 Mass. 583, 591.
It would seem, therefore, that these lakes, acquired for water supply
purposes, cannot now by a departmental order or ruling be converted into
parks or portions of parks as such.
Heretofore they have been, you advise me, under the control of the
Water Division established in your department. The precise scope of the
authority of the divisions in your department is not defined by the statutes.
If these lakes can be maintained as potential sources of water supply
when supervised and maintained by the Parks Division in your department
as effectually as when supervised and maintained by the A\'ater Division,
and there are appropriations available to the Parks Division for such pur-
pose, there would appear to be no objection as a matter of law to the
exercise of such supervision and maintenance of the lakes as a potential
source of w^ater supply by the Parks Division.
\'ery truly yours,
Robert T. Bushnell, Attorney General
32 P.D. 12.
Civil Service — Fire Department of West Springfield — Call Firemen —
Classified Service.
Nov. 8, 1944.
Hon. Thomas J. Greehan. Director of Civil Service.
Dear Sir: — You have informed me that in 1917 the Town of West
Springfield accepted the provisions of Spec. St. 1916, c. 350, entitled
''An Act to extend the provisions of the civil service laws to the members
of the fire department of the town of West Springfield"; that at the time
of such acceptance there were no call firemen in the service of the town,
and you desire my opinion as to whether by force of such acceptance call
firemen employed by the town thereafter come within the provisions of the
Civil Service Law.
I am of the opinion that such call firemen are within the sweep of the
Civil Service Law.
In 1916, when the Legislature enacted this special act applicable only
to West Springfield, the Revised Laws were in effect, and chapter 19, section
37, contained general provisions substantially corresponding to those now
embodied in G. L. (Ter. Ed.) c. 31, § 48, that in a town which accepted
the provisions of the existing Civil Service Law relating to the fire forces
of cities except Boston such provisions should "apply to all members of
the regular or permanent . . . fire forces, or to the call fire force, or to
either of said forces. ..."
By acting under said section 37, a town could determine for itself whether
or not call firemen should be included within the protection of Civil Service
or whether such protection should be limited to members of the regular
and permanent fire force only. It is with relation to this mode of accept-
tance that G. L. (Ter. Ed.) c. 31, § 48, provides that:
"... a town which has accepted this section or the corresponding pro-
visions of earlier laws as to regular firemen may afterward accept it as to
call firemen. ..."
The Legislature, however, by enacting said special act of 1916 provided
for West Springfield a mode of acceptance of the Civil Service Law which
did not permit an inclusion of regular and permanent firemen and an ex-
clusion of call firemen. By its terms all members of the town fire depart-
ment were to be brought under Civil Service if the voters accepted the act.
The first section of the said special act reads:
"The provisions of chapter nineteen of the Revised Laws (the Civil
Service Law), and all acts in amendment thereof and in addition thereto,
are hereby made applicable to all present and future members of the fire
department of the town of West Springfield."
No provision for the inclusion or exclusion from the acceptance of the
special act with regard to any branch or division, regular or call, of the
firemen of West Springfield was contained in the special act. The special
act unlike said section 37 of chapter 19 of the Revised Laws afforded the
voters of West Springfield, if they accepted it, no opportunity to express
an intent to exclude either regular or call firemen from the protection of
Civil Service.
In view of the existence of the general provisions of said section 37 it is
apparent that unless the Legislature intended that acceptance of the
special act should draw into the Civil Service both regular and call fire-
i
r.D. 12. 33
men alike there would have been no occasion for its enactment, and the
measure would have been of no practical efl'ect, as its terms otherwise
make no material variation from those of said section 37.
The words "fire department" comprehend at least the fire-fighting
forces of a town (see Elliott v. Fire Commissioner of Boston, 245 Mass.
330, 332). Call firemen are a part of such forces. In certain statutes the
phraseology indicates a legislative determination that call firemen are
members of the fire departments of cities (G. L. (Ter. Ed.) c. 32, §§ 80, 82)
and of towns (G. L. (Ter. Ed.) c. 32, § 85A; c. 48, § 42). In an opinion of
the Attorney General to the Director of Civil Service of December 31,
1941 (Attorney General's Report, 1942, p. 49), it was stated:
"Call firemen are a part of the 'fire forces' of cities and towns which
emplo}- them."
To construe the words "fire department" as used by the Legislature in the
special act under consideration as not embracing both the regular and
call firemen would be to give them an unusual meaning and, moreover,
would result in an interpretation of the special statute which, for reasons
that I have suggested, would render it an unnecessary duplication of
existing legislation, barren of any accomplishment.
As was stated by Chief Justice Rugg in Flood v. Hodges, 231 Mass.
252, 257: ^
"A legislative act ought to be interpreted, whenever permitted by its
words, so as to make it effective toward a substantial end and not devoid
of vitality. Barrenness of accomplishment cannot be imputed to the
legislative department of government."
An intention to pass an ineffective statute should not be imputed to the
Legislature. Boston Elevated Railway Co. v. Coynmonwealth, 310 Mass.
528, 548; Maclnnis v. Morrissey, 298 Mass. 505, 509; B. (k A. E^R. v.
Boston, 275 Mass. 133, 135.
It follows that by the acceptance of the special act of 1916 the Town of
West Springfield brought all those who were or should thereafter become
call firemen within the provisions of the Civil Service Law.
Very truly 3'ours,
Robert T. Bushnell, Attorney General.
Public Safety; Inspection of Places of Assembly; Regidations; G. L. (Ter.
Ed.) c. 14^, § SB.
Nov. 13, 1944.
Hon. John F. Stokes, Commissioner of Public Safety.
De.\r Sir: — You have asked my opinion as to whether the following
proposed regulation is a proper one to be made under G. L. (Ter. Ed.)
c. 143, §3B:
"Section 103. The duty of inspecting existing places of assembly is
placed by section 3A of Chapter 143 upon the local municipal officer or
Board and all action by inspectors of the Department acting under au-
thority granted such State inspectors by other sections of Chapter 143
shall therefore, be taken by such State inspectors through the municipal
officer or board acting under section 3A as the Commissioner's authorized
representative."
34 P.D. 12.
In my opinion, this proposed regulation is not a proper one. G. L.
(Ter. Ed.) c. 143, § 3B, provides:
"The commissioner of public safety, herein and in the six following
sections called the commissioner, subject to the approval of the board of
standards and appeals shall, and said board of its own motion may, make
rules and regulations relating to the construction, reconstruction, altera-
tion, repair, demolition, removal, use and occupancy, and to the standards
of materials to be used in such construction, reconstruction, alteration,
repair, demolition, removal, use and occupancy of any building or portion
thereof which, under section one, may be deemed to be a place of assembly;
and such rules and regulations shall be in accord with the generally
accepted standards of engineering practice and not inconsistent with
law. ..."
The duty of inspecting places of assembly has been placed upon state
inspectors as well as upon various municipal officers, and the duty of
taking appropriate action to remedy faulty conditions discovered by
state inspections in places of assembly has been placed by the Legislature
upon the state inspectors as well as upon municipal officers (see G. L.
(Ter. Ed.) c. 143, as amended, §§ 15, 21, 28, 31, 36, 37, 38, 54, 55).
The proposed regulation purports to relieve the state inspectors from
full compliance with these duties placed upon them by the ' Legislature
and to destroy their power to perform fully such duties themselves by
providing that they shall take action to compel the remedy of faulty con-
ditions discovered by them in places of assembly through municipal offi-
cers. Although certain municipal officers, acting as representatives of the
Commissioner of Public Safety under G. L. (Ter. Ed.) c. 143, § 3A, have
duties of inspection and enforcement with relation to places of assembly as
do state inspectors, this fact does not lessen the obligation of the state
inspectors to perform their corelative duties in person nor enable them to
escape responsibility by a delegation of their authority of enforcement
to municipal officers.
It is apparent, therefore, that the provisions of the proposed regulation
limiting the exercise of that authority, which has been vested in the state
inspectors, by requiring that their actions necessary to the enforcement
of the laws relative to places of assembly shall be taken through municipal
officers, are repugnant to the intent of the Legislature with regard to the
duties and powers of such inspectors as expressed in said chapter 143.
The exercise of the rule-making power by an administrative department
or officer does not authorize the making of a rule or regulation in opposi-
tion or repugnant to the legislative intent as expressed in a statute of
general application. The authority vested in officers or employees by the
Legislature may not be reduced by a departmental rule or regulation as
would be the case under the proposed regulation. Wyeth v. Cambridge
Board of Health, 200 Mass. 474, 481. Commonwealth v. McFarlane, 257
Mass. 530. Commonwealth v. Johnson Wholesale Perfume Co., 304 Mass.
452, 457.
It follows that the proposed regulation is not a proper one and, if
adopted, would be without validity.
I see no objection to the legality of the compromise proposed b}' you.
Whether this compromise should be adopted as a rule is a question of
policy on which I express no opinion.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 35
Civil Service — Promotions in Clerical Service of Municipal Fire Depart-
ment— G. L. {Ter. Ed.) c. 31, § 15 or § 20.
Nov. 27, 1944.
Hon. Thomas J. Greehan, Director of Civil Service.
Dkar Sir: — You have asked my opinion as to whether promotions in
the clerical service of the fire departments of cities and towns are regulated
by G. L. (Ter. Ed.) c. 31, § 15, or § 20.
Section 15 of said chapter 31, as amended, sets forth general provisions
regulating promotions in the official service. However, it provides that
such provisions shall apply "except in police and fire departments."
Section 20 of said chapter 31, as amended, sets forth provisions regu-
lating promotions, somewhat different from those of said section 15, appli-
cable to "promotions in such police forces and fire forces of cities and towns
as are within the classified civil service."
The answer to your request depends upon the construction which should
be put upon the word "departments" as used in the quoted phrase of
exclusion contained in said sectfon 15.
I am informed that in the administration of the Civil Service Law your
division has construed the word "departments" in said section 15 as
embracing only those members of the police who engage in actual police
duty as such and those firemen who are employed in Jir'e fighting forces:
that is, you have interpreted the word "departments" in said section 15
as being synonymous with the word "forces" in said section 20.
I am of the opinion that this construction which you have adopted is
correct.
The word "department" is susceptible of different meanings with rela-
tion to police and fire organizations. According to the context in which
it is employed, it may comprehend all the activities associated with the
administration of a municipal pohce or fire organization, or it may be
restricted so as not to include the clerical and auxiliary employees of such
an organization. Elliott v. Fire Commissioner of Boston, 245 Mass. 330.
Fickeft V. Firemen's Relief Fund, 220 Mass. 319. Nolan v. Boston Fire-
men's Relief Fund, 236 Mass. 420.
The word "forces" in the statute as applied to firemen has an accepted
meaning as designating the employees engaged in fire fighting {Elliott v.
Fire Commissioner of Boston, 245 Mass. 330. 332) and as applied to police-
men, it would appear to signify those engaged in the duty of policing as
such.
Said section 20 as originally enacted (St. 1920, c. 368) was made appli-
cable to "pohce forces." Its provisions were extended to "fire forces" by
an amendment made by St. 1939, c. 419, § 3.
The said provisions of section 15, excluding "police and fire depart-
ments" from the general requirements made by that section for promotions
in the official service, were first enacted by St. 1939, c. 506, § 2.
It is to be assumed that the Legislature when making a new enactment
is familiar with pre-existing statutory provisions related to the same
subject matter (Devney's Case, 223 Mass. 270; Kneeland v. Emerton, 280
Mass. 371), and intended that the new and old provisions should be parts
of an harmonious whole, especially when the new and the old are enacted
in the same year. Commonwealth v. King, 202 Mass. 379, 388.
Inasmuch as no provisions are to be found in section 20 with regard to
the promotions of any employees of a police or fire department other than
36 P.D. 12.
those of employees in the "poHce or fire forces," clerical and auxiliary
employees would be left without statutory provision for promotions if the
word "departments" in section 15 were not employed in the same sense
as the word "forces" used in section 20.
It cannot reasonably be thought that the Legislature intended to pro-
duce such a result. It follows that the word "departments" should be
construed in its limited sense as synonymous with "forces" in order that
an effectual, reasonable and harmonious interpretation may be given to
the statute (G. L. (Ter. Ed.) c. 31) as a system of Civil Service Law.
"A statute as a whole ought, if possible, to be so construed as to make
it an effectual piece of legislation in harmony with common sense and
sound reason."
Morrison v. Selectmen of Weymouth, 279 Mass. 486, 492.
Very truly yours,
Robert T. Bushnell, Attorney General.
Emergency Public Works Commission — Postwar Projects — Port of Boston.
Nov. 30, 1944.
Emergency Public Works Commission.
Dear Sirs: — You have asked my opinion upon the following question:
"Is the Emergency Public Works Commission empowered by chapter
517 of the Acts of 1943 to prepare plans and specifications for the construc-
tion as a postwar project of the piers authorized by chapter 714 of the
Acts of 1941, provided the funds for such plans and specifications are made
available from the Governor's Emergency War Fund?"
I answer this question in the negative.
St. 1943, c. 517, authorized the Emergency Public Works Commission
"to prepare a program of post-war public works which may be undertaken
by the commonwealth, and to submit such program to the governor."
It was provided that the program "shall include provisions deemed desir-
able for the preparation, during the continuance of the war, of plans, sur-
veys and other information needed to permit prompt, effective and eco-
nomical action in the period immediately following the termination of the
existing states of war. . . ."
It does not appear from the phraseology employed to have been the
intent of the Legislature in enacting said chapter 517 to entrust to the
Emergenc}'^ Public Works Commission authority to prepare, as a part of
its postwar program, plans and specifications for particular public works
for which the Legislature has already provided by vesting the authority
to construct in a specified department of the Commonwealth.
St. 1941, c. 714, is entitled "An Act authorizing the department of public
works to acquire certain waterfront properties in the city of Boston, to
construct a pier thereon and to lease the same."
By its terms the Department of Public Works is authorized, for the
purpose of improving the pier facilities in the Port of Boston, to acquire
so much of certain designated real properties as might be necessary to
construct ramps and their accessories essential to the development of a
waterfront terminal, with highway and railroad connections. The depart-
ment is also authorized to construct a pier, with sheds, tracks, roadways
P.D. 12. 37
and other apT>urtenaiices, to "dredsjo berths ai t! •ipuroaches th?reto and
provide such other accessories as it may deem desirable," and to lease the
])roperty to a responsible party.
Plainly the duty and the authority to prepare i)lans and specifications
for the construction of the ramps, piers and accessories which the depart-
ment is authorized by said chapter 714 to construct in the development of a
waterfront terminal had been entrusted to the Department of Public
Works before the enactment of said St. 1943, c. 517. Whether the con-
struction which the said department is empowered to undertake is a project
presently to be carried out or is one which of necessity becomes a postwar
project, it is clear that the authority to make plans and specifications and
to do other similar necessary work incident to such construction or to the
])reparation for such construction is vested in the said department.
There is nothino- in the provisions of said St. 1943, c. 517, authorizing
the EMieri2;ency Public Works Commission to prepare a postwar program
of public works, which operates to repeal St. 1941, c. 714, or which indicates
that the Legislature intended that said Commission in preparing a post-
war program should take over or duplicate work already entrusted to
another agency of the Commonwealth in connection with a scheme for
development and construction specifically authorized by the Legislature,
and as a part of w'hich the adoption and execution of the detail of the
work have been entrusted to the discretion of such agency.
Very truly yours,
Robert T. Bushxell, Attorney General.
Insurance — Group Annuity Contracts — Approval — Options —
Particular Provisions.
Deo. 1, 1944.
Hon. Charles F. J. Harrinoton, Cominissioner of Insurance.
Dear Sir: — You have asked mj^ opinion upon four questions with
relation to the form of a group annuity contract, which you have laid
before me.
You inform me that for many years the Department of Insurance has
required life insurance companies issuing such contracts to file them for
the purpose of j-our approval.
1. Your first question reads:
"Is the approval of the Commissioner of a group annuity contract
necessary before such contracts may be issued in the Commonwealth?"
I answer this question in the affirmative.
In an opinion w^hich the Attorney General rendered to you on September
29, 1944 (ante, p. 22), it was held that you had the authority and the
duty to approve or disapprove a form of group annuitv contract.
G. L. (Ter. Ed.) c. 175, § 132, as amended, provides that:
"No policy of life or endowmient insurance and no annuity, survivorship
annuity or pure endowment contract shall be issued . . . until a copy of the
form thereof has been on file for thirty days with the conitnissiofier, iinless
before the expiration of said thirty days he shall hare approved the forrn
of the policy or contract in writinq: nor if the commissioner notifies the
company in writing, within said thirty days, that in his opinion the form
38 . P.D. 12.
of the policy or contract does not comply with the laws of the common-
wealth, specifying his reasons therefor, ..."
I am of the opinion that the words "annuity contract" as employed in
said section are sufficiently broad to include a group annuity contract.
Although the Legislature has seen fit to define a group life insurance
poHcy in section 133 of said chapter 175, as amended, and has specifically
provided for its approval by the Commissioner in section 134 of said
chapter 175, as amended, and has omitted similar specific provisions with
regard to group annuity contracts, nevertheless, in view of the general
legislative design of subjecting contracts of life insurance companies to
the approval of the Commissioner, as shown in said chapter 175, such
omission cannot well be taken as showing a legislative intent to exclude
annuity contracts issued to a group from the safeguard of effective scru-
tiny by the Commissioner, which is required by said section 132 for annuity
contracts generally as well as for Hie policies.
2. Your second question is :
"Have the rules and regulations and the applicable provisions of section
134 which are used by the Department in examining group annuity con-
tract forms the force of law, and, in the event of disapproval of a group
annuity contract form, are they sufficient to comply with the statutory
requirement that the Commissioner specify his reasons whereby the con-
tract does not comply with the laws of the Commonwealth?"
I answer this question in the negative.
G. L. (Ter. Ed.) c. 175, § 132, as amended, provides that if the Com-
missioner does not approve the form of a contract of annuity, he is to
notify the insurance company that in his opinion it does not comply with
the laws of the Commonwealth and specify his reasons therefor.
Section 134 of chapter 175, as amendecl, contains no provisions which
relate to or are applicable to annuity contracts. Its standard provisions
are specifically made applicable to group policies of fife insurance. They
are not laws of the Commonwealth with which annuity contracts of any
type must comply.
No authority to make rules and regulations with regard to the form of
annuity contracts has been vested in the Commissioner -of Insurance.
Any so-called rules and regulations which may have been made in this
respect can be nothing but directives for the guidance of the department
and the insurance companies. They are not "laws of the commonwealth"
with which annuity contracts of any type must comply. It follows that
lack of conformity to the said provisions of section 134 or to the said
"rules and regulations" as such could not furnish proper "reasons" for
an opinion that a group annuity contract "does not comply with the laws
of the commonwealth," as the quoted words are used in said section 132.
3. You have informed me that a group annuity contract which has
been filed with you —
"contains a provision which has an option available to the annuitant
when he reaches age 60. By availing himself of this option when he
reaches the age 60, the annuitant, if he then retires from work, may have
the amount of the annuity to which he would otherwise be entitled at
that age increased by the amount which will be payable to him at age 65
under the Federal Social Security Act and a proportionate deduction
will be made to the amount otherwise payable to him under the group
P.D. 12. 39
annuity contract at a^e 65. The amount which will be payable to him
under the Federal Social Security Act caiuiot, of course, be known at the
time when the policy is issued, and the calculation of the .amount of the
annuity which will be paj^able should this option be adopted by the
annuitant in the future cannot be known at the time when the policy is
issued."
And with relation to this contract your third question reads:
"May the Commissioner approve a form of group annuity contract con-
taining such an option since the contract itself does not contain sufficient
information so that the annuitant can know at its date of issue the amount
of future benefits which will accrue to him if he adopts such an option when
he reaches the age 60?"
I answer this question in the affirmative.
The Legislature has not, as I have already said, made the standard
provisions concerning life policies in said section 132 or those relating to
group life policies in said section 134 applicable to annuity contracts.
It has set forth certain requirements with relation to the form and con-
tents of annuity contracts in general. G. L. (Ter. Ed.) c. 175, § 130,
prohibits incorrect dating of such a contract. Section 129 requires that
"a plain description . . . so fully defining its character, including dividend
periods and other peculiarities, that the holder thereof shall not be likely
to mistake the nature or scope of the contract," shall be borne in bold
letters on the face of the contract. Section 120 prohibits discrimination
"in favor of individuals between insurants of the same class and equal
expectation of life in . . . the dividends or other benefits payable thereon,
or in any other of the terms and conditions of the contracts." Section 22
forbids the inclusion in an annuity contract of certain provisions depriving
the courts of jurisdiction or limiting the time for commencing action against
a company to a period of less than two years or making the company's
agent the agent of the annuitant. Section 22B forbids the inclusion in a
contract of any provision for a waiver by an annuitant of any of the pro-
visions of said chapter 175, except as authorized therein.
There is no provision of the statutes that the applications and the con-
tract as written shall constitute the entire contract between the parties,
as has been specifically provided by said section 134 for group life insur-
ance policies, nor is there any statutory provision of similar import. Since
this is so, there is no requirement that- the form of an option, such as you
have described, in a contract of group annuity, should contain sufficient
information so that the annuitant can know at the date of issue the amount
of future benefits which will accrue to him if he later chooses to adopt the
option.
The option is plainly for the benefit of the annuitant and the amount
which will be received under the option is capable of being calculated at
the time when the annuitant considers whether he desires to avail himself
of it.
The provisions of this option do not appear to be contrary to any law
of the Commonwealth, and there does not appear to be anything in their
nature calculated to mislead the annuitant, or to lead to any discrimination
or to any unfair practice.
4. You have also informed me with regard to the group annuity con-
tract which has been filed with you that —
40 P.D. 12.
"The group annuity contract form referred to above contains a pro-
vision whereby the annuity payments to individual employees in the upper
salary brackets may be reduced and the payments to individual employees
in the lower salary brackets may be increased proportionately if the con-
tract is discontinued in less than ten years. The amount of this reduction
cannot be determined at the time of issuance of the policy, and, therefore,
it cannot be known to or be computed by a proposed annuitant from any
terms appearing in the contract.
The reason for inserting this provision allowing for the reduction of some
of the annuity payments and the increase in others upon discontinuance
within ten years is that the Federal Government will not give credit to an
employer for his share of premium payments on the annuity contract as a
deduction from his income taxes unless the premium payments in such a
contract continue for more than ten years or unless the contract contains
this provision for the indicated redistribution of annuities upon such
discontinuance."
And with relation to this contract you have asked my opinion upon the
following question:
"May the Commissioner approve a group annuity contract allowing the
reduction of annuity payments to individual employees in the upper salary
brackets with a proportionate increase in the annuity payments to indi-
vidual employees in the lower salary brackets upon discontinuance of the
policy as outlined above?"
The fact that the amount of reduction in the annuity payments to indi-
vidual employees in the higher brackets which will occur if the contract is
discontinued within ten years cannot be computed at the time of issue
does not render its provisions unlawful since, as I have said, the statutes
do not require that an annuity contract must contain within the applica-
tions and the contract form all the provisions of the contract.
If the terms of the contract describing what will occur upon its discon-
tinuance within ten years are set out therein so plainly as not to fall
within the prohibition of said section 129 so "that the holders thereby
shall not be likely to mistake the nature and scope of the contract," it
would not appear to be contrary to any specific provision of law concern-
ing annuity contracts nor would it appear to be inequitable or discrimina-
tory since this mode of dealing with annuity payments upon a discon-
tinuance is a part of the agreement knowingly entered into by all the
parties at the time of its issue.
If the Commissioner determines upon an inspection of the contract, as
a matter of law, that its terms are set out in the manner indicated in the
preceding paragraph, and that no others of its terms are in violation of
statutory provisions, I am of the opinion that he may properly . approve
the contract.
Very truly yours,
Robert T. Bushnell, Attorney General.
P.D. 12. 41
Workmen's Compensation — Self- Insurance — Reinsurance — Catastrophe
— Service Company.
Dec. 13, 1944.
Department of Industrial Accidents.
Dear Sirs: — Yoii have informed me that your Department, acting
under the provisions of G. L. (Ter. l^xl.) c. 152, § 25A, recjuired a self-
insurer to furnish a poHcy reinsuring its compensation ristc against catas-
trophe in , accordance with subparagraph (r) of subsection (2) of said
section 25A.
You have laid before me a pohcy furnished b}^ the self-insurer in accord-
ance with your requirement containing an endorsement, and with relation
thereto you have asked my opinion upon two questions:
Your first question is:
"(1) Is the poHcy referred to one which 'reinsures self-insurers' com-
pensation risk against catastrophe' within the meaning and as required
by G. L. (Ter. Ed.) c. 152, § 25A, subsection (2), subparagraph (c) as
enacted by St. 1943, c. 529?"
I answer this question in the affirmative.
Your second question relates to the endorsement which is attached to
the policy laid before me, and is as follows:
"(2) If your answer to the foregoing question is in the affirmative, do
the provisions in the endorsement attached to said policy that the services
described in paragraph (2) and section J of the policy shall be performed
by the nominee of the reinsurer violate provisions of section 25D of said
chapter 152, as enacted by chapter 529 of the Acts of 1943?"
Mv answer to this question is in the negative.
(Ij G. L. (Ter. Ed.) c. 152, § 25A, subsection (2) subparagraph (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."
The insurer in this policy agrees, among other things, "to reinsure this
Self-Insurer against all loss in excess of seventy per cent (70) of the Self-
Insurer's 'Normal Premium,' or the sum of $7,000, whichever may be the
greater, for Workmen's Compensation ... by reason of his liability for
damages on account of such injuries to such of said employees as are
legally employed, and within the contemplation of the Workmen's Com-
pensation Law. ..."
This form of agreement is similar to that in a proposed policy form
considered by the Supreme Judicial Covu't in Friend Brothers, Inc. v.
Seaboard Surety Co., 316 Mass. 639. In its opinion in that case the court
held that such a form of agreement "is in reality a contract for reinsur-
ance," treated it as creating insurance against " catastrophe," and stated
that such a contract "is not offensive to our laws or public policy."
In the light of that opinion the policy which you have laid before me
must be taken to reinsure a self-insurer's compensation against catastrophe.
42 P.D. 12.
(2) The endorsement of the poUcy in question to which you refer in
your second question in its pertinent part reads :
"In consideration of the premium charged for this policy, it is under-
stood and agreed that the services described in paragraph 2 and section ' J '
of the pohcy to which this endorsement is attached shall be performed
by a nominee of the reinsurer."
Paragraph 2 of the policy referred to in the endorsement reads :
" That this contract is issued to the Self-Insurer on the express condition
that this Self-Insurer undertakes at all times to utilize the services of
- . . , hereinafter referred to as the 'Service Organization', which serv-
ices shall comprise, in accordance with their usual practices, the following
duties :
(a) The strict discharge of the Employer's Workmen's Compensa-
tion and/or occupational disease obligations to his employees;
(6) The maintenance of accurate records of all details incident to
such payments;
(c) The furnishing of complete inspection and safety engineering
services; and
(d) Furnishing of monthly claims' records on an approved form;
the acceptance of which services shall be a condition precedent to any
liability which may attach to the Company in accordance with the terms
and conditions of this Contract."
Section J of the policy referred to in the endorsement reads:
"J. The services contemplated under this Contract to be rendered
through the aforesaid Service Organization shall include frequent inspec-
tion of the Self-Insurer's plants; the rendering of adequate engineering
services; the compilation and hling of all notices and reports required
under the Workmen's Compensation and/or Occupational Disease Law;
the furnishing of a full and complete monthly report to the Self-Insurer
and to the Company of all accidents, and a tabulation of all payments
made and reserves set up for benefits and expenses on account of liability
for injuries sustained by employees; the attendance on behalf of the Self-
Insurer at all scheduled hearmgs befoi'e the Workmen's Compensation
Board; and a general administration of all other details looking to the
effectual discharge of the Self-Insurer's obligations towards his em-
ployees."
G. L. (Ter. Ed.) c. 152, § 25, inserted by St. 1943, c. 529, reads:
"Section 25D. No self-insurer or attorney acting in its behalf shall
engage a service company or like organization to investigate, adjust, or
settle claims under this chapter or to represent it in any matter before
the department. Any violation of this section shall constitute reasonable
cause for revocation of the license of a self-insurer under section twenty-
five A of this chapter."
The provisions of said paragraph 2 and of said section J of the policy are
broad enough to include within the work to be performed by the "Service
Organization," therein referred to, investigation, adjustment and settle-
ment of claims under said chapter 152. The performance of such acts on
behalf of a self-insurer by "a service company or like organization" are
prohibited by said section 25D. if the nominee of the insurer under the
P.D. 12.
43
endorsement is "a service company or like organization," its employ-
ment to do the work described in parafiraj)h 2 and section J of the pohcy
by the self-insnrer will be in violation of the terms of said section 25D,
and will require the revocation of the self-insurer's license.
Although the phraseology of said paragraph 2 and section J seems to
indicate that the employment of "a service company or like organization"
is contemplated by the parties to the contract, nevertheless the insurer
might, under the terms of the endorsement, choose to nominate for em-
ployment an individual who functions in such a maimer that he could
not be deemed to be "a service company or like organization." For this
reason the endorsement as it stands, even when read in conjunction with
paragraph 2 and section J of the policy, cannot presently be said to be
unlawful as requiring a violation of said section 25D.
If and when by force of the terms of the endorsement the self-insurer
employs, directly or indirectly, a "service company or like organization"
to perform the services described in said paragraph 2 and section J an
unlawful act will have been committed and the self-insurer's license will
be subject to revocation.
Very truly yours,
Robert T. Bushnell, Attorney General.
Conservation — Shellfish — Permits — Municipal Leases — Non-residents
— Director of Division of Marine Fisheries.
Dec. 14, 1944.
Hon. Raymond J. Kenney, Commissioner of Conservation.
Dear Sir: — You have asked my opinion on three questions with re-
lation to so-called leases from the Commonwealth to cities and towns in
Essex County "of the right to control and regulate the taking of clams
from all flats within" the borders of such municipalities under the provi-
sions of St. 1912, c. 710, as amended by St. 1927, c. 307. You state that
your request for an opinion is occasioned by a controversy over the rights
of certain shellfishermen holding "master digger's permits" to take shell-
fish in contaminated areas from the waters of cities and towns to which
such leases have been issued.
Your first two questions are:
"Has such a city or town the right to exclude non-residents of its city
or town holding the tj^pe of permits heretofore mentioned fi'om taking
clams from the waters of said city or town?
Has the Director of the Division of Marine Fisheries the authority to
issue valid permits of the type above mentioned to non-residents of any
city or town in Essex County holding such a lease to take clams from
contaminated areas in said city or town?"
I answer your first question that by virtue of such a lease such city or
town has the right to exclude non-residents, with the exception of those
mentioned in section 6 of said chapter 710, as amended, from taking
clams from its waters, except that when an area within its borders lias
been determined by the State Department of Pul)lic ncalth to be a co7i-
taminated area under the terms of G. L. (Ter. Va\.) c. 130, § 74, it may
not exclude any person to whom a "master digger's permit" or a "dig-
ger's permit" to take shellfish from such a contaminated area has been
44 P.D. 12.
issued by the Director of Marine Fisheries under the provisions of G. L.
(Ter. Ed.) c. 130, § 75.
I answer your second question to the effect that the Director of Marine
Fisheries has authority to issue permits to take clams from an area deter-
mined to be contaminated by the State Department of PubUc^ Health to
non-residents of a town in Essex County within whose borders the area
lies irrespective of the fact that the town has a lease issued under said
St. 1912, c. 710, as amended.
St. 1912, c. 710, in its applicable parts, provides:
*' Section 1. Any city or town in the county of Essex may take from
the commonwealth a lease of the right to control and regulate the taking
of clams from all the flats within its borders.
Section 2. The commissioners on fisheries and game shall issue a lease
as aforesaid to each city or town in said county which makes application
therefor, for a term of ten years, at an annual rental of five dollars a year,
to be paid into the treasury of the commonwealth.
Section 4. All rights granted to a city or town under a lease as afore-
said shall be held by the city or town for the benefit of its citizens.
Section 5. After acceptance of this act, cities through their city gov-
ernments and towns at any annual or special meeting duly called for the
purpose, may make rules and regulations in regard to the taking of clams,
and may authorize the granting of permits to citizens of such cities and
towns to take clams, and may prescribe the time and methods of such
taking.
Section 8. All acts and parts of acts incoQsistent herewith are hereby
repealed.
Section 9. This act shall take effect in any city upon its acceptance
by the city council or corresponding body of such city, and in any town
upon its acceptance by a majority of the voters of such town present
and voting thereon at any annual town meeting, or at any special town
meeting duly called for the purpose."
Section 6 of said chapter 710, as amended by St. 1927, c. 307, reads:
"Section 6. Any inhabitant of the commonwealth may, without a
permit, take clams, not exceeding one bushel, including shells, in any one
day, for the use of his owii family from the waters of his own or any other
city or town in the county of Essex, and may so take from the waters of
his own city or town clams for bait, not exceeding three bushels, includ-
ing shells, in any one day, subject to the general rules and regulations
adopted by cities and towns, respectively, in the manner specified in the
preceding section as to the time, place and methods of taking clams.
Whoever, without a permit, takes any clams from the flats within the
borders of any city or town holding a lease from the commonwealth under
section two, except as permitted by this section, shall forfeit not less than
five nor more than fifty dollars for such offence."
In 1912, when chapter 710 was enacted, the statutes of the Common-
wealth provided that the State Department of Public Health might de-
termine that areas of tidewater and flats were contaminated ; that the Com-
missioners on Fisheries and Game should prohibit the taking of shellfish
P.D. 12. 45
from such areas, and that anyone taking shellfish from such areas might
be punished by a fine, R. L., c. 91, §§ 113, 114.
The authority of the State under the police power to make and enforce
a plan established by the Legislature whereby contaminated areas might
be determined by a State department and tlie taking of shellfish from such
areas prohibited has been held to be constitutional. Commonwealth v.
Feetiey, 221 Mass. 323. Such a plan was in existence when St. 1912, c. 710,
was passed by virtue of the provisions of II. L., c. 91, §§ 113, 114, and said
chapter 710 should be interpreted in the light of the then existing legislation.
As so construed, said chapter 710 constitutes a grant of regulatory powers
to cities and towns, subject to the paramount authority of the Common-
wealth under its police power to regulate contaminated areas for the
protection of the ])ublic health.
This general plan was reenacted in various forms and now appears in
G. L. (Ter. Ed.) c. 130, §§ 74, 75, as most recently amended by St. 1941,
c. 598. Specific provision is now made in said section 75 for the granting of
permits ("master digger's permits" and "digger's permits") by the Direc-
tor of Marine Fisheries to persons to take s-hellfish from areas determined
to be contaminated upon condition that such shellfish be purified in an
approved plant. See G. L. (1921) c. 130, §§ 137-140; St. 1926, c. 370;
St. 1928, c. 266; St. 1929, c. 372, § 25; G. L. (Ter. Ed.) c. 130, §§ 137, 138,
prior to amendment by St. 1941, c. 598.
The provisions of said section 75, whereby permits may be issued by
State officials authorizing persons to take shellfish from contaminated
areas upon condition of the purification of the shellfish in approved plants,
are mere details incident to the plan for state regulation of the taking of
shellfish from contaminated areas as a public health measure under the
police power.
The authority of the State under the police power to make all laws
necessary to secure the health of the community can neither be abdicated
nor bargained away. Accordingly, anj^ grants and all contract rights are
held subject to its exercise. Opinion of the Justices, 261 Mass. 523, 553.
Instruments containing a grant of power from the Commonwealth, such
as the leases authorized by St. 1912, c. 710, should, as a general principle
of IsiW, be construed if possible so as to preserve their validity as impliedly
reserving the right to the State to exercise its police power. Boston EI.
Ry. v. Commonwealth, 310 Mass. 528, 552. See Commonwealth v. Alger,
7 Cush. 53, 84, 85; Commonwealth v. Bailey, 13 Allen, 541, 544. Moreover,
it is a principle of law that a grant from the State is to be construed strictly
against the grantee. Attorney General v. Jamaica Pond Aqueduct Co.,
133 Mass. 361, 365, 366; Stoneham v. Commonwealth, 249 Mass. 112, 117.
In so far as the regulation of uncontaminated area.s or of contaminated
areas as to which the authorized State officials have made no determination
is concerned, a city or town may make, and enforce- under a lease, regula-
tions relative to the digging of shellfish, and may exclude non-residents
from so digging except for the particular purposes set forth in said St.
1912, c. 710, § 6, as amended bv St. 1927, c. 307. SeJe Commonwealth v.
Hilton, 174 Mass. 29.
Your third question is:
"Whether or not the Department of Conservation or the Division of
Marine Fisheries has authority to execute new leases including renewal of
existing leases under the provisions of chapter 710 of the Acts of 1912 in
46 P.D. 12.
view of the General Laws, chapter 130, section 104, as inserted by chapter
598 of the Acts of 1941?"
I advise you that the Director of the Division of Marine Fisheries is
now the officer authorized by the statutes to execute leases and renewals
under St. 1912, c. 710.
The offices of Commissioners on Fisheries and Game, who were em-
powered by St. 1912, c. 710, to issue the leases under consideration, were
abolished by Gen. St. 1919, c. 350, pt. Ill, § 39. By a series of enactments
the powers which they formerly exercised with relation to marine fish,
including shellfish, have been vested in an official called the Director of the
Division of Marine Fisheries (Gen. St. 1919, c. 350, pt. Ill, § 43; G. L.
(Ter. Ed.) c. 21, § 6; St. 1929, c. 372, § 1; St. 1939, c. 491, §§ 1, 8: St.
1941, c. 598, § 6, c. 599, § 3).
The authority to make the leases under consideration has now vested
in the Director of the Division of Marine Fisheries. This authority is not
affected by the provisions of G. L. (Ter. Ed.) c. 130, § 104, inserted by St.
1941, c. 598, to which you refer in your question. Section 104 reads:
"This chapter shall not be deemed to affect any provisions or penalties
contained, or any privileges granted, in any special statute relating to
fisheries in any particular place, except such provisions thereof as relate
to shellfish and shellfisheries and to the alewife fisheries."
Since the provisions of said St. 1912, c. 710, which are affected by G. L.
(Ter. Ed.) c. 130, as amended, are provisions relating to shellfish and shell-
fisheries, such effect is not modified by the terms of this section.
Very truly yours,
Robert T. Bushnell, Attorney General.
Architects — Registration — "Residence" — "Prior" — St. 1941, c. 696 § 3.
Dec. 27, 1944.
Mrs. Hazel G. Oliver, Director of Registration.
Dear Madam: On behalf of the Board of Registration of Architects
you have asked my opinion upon two questions relating to registration of
architects.
1. The first question reads:
"What is considered a person's legal residence?"
Inasmuch as the words "legal residence" do not occur in the statutes
relating to the duties of the said Board nor in the "Application for Certi-
fication as a Registered Architect," prepared by the Board, and because a
construction of said words is not germane to the performance of any duty
required of the Board, the question appears to be hypothetical and is,
therefore, one which the Attorney General following a long line of practice
does not answer (Attorney General's Report, 1935, p. 31).
For the guidance of the said Board, I inform you that th(^ words "legal
resident of Massachusetts," as used by said Board in section 4 (g) of the
"Application" are not synonymous with the words "citizens of the com-
monwealth" as employed by the Legislature in St. 1941, c. 696, § 3, con-
cerning an applicant for registration.
2. Your second question reads:
P.D. 12. 17
"Does the word 'prior' in the following quotation from the Board of
Registration of Architects' Law mean 'immediatelv' prior? Section 3,
chapter 696, Acts of 1941.
'Anj^ person compl3-ing with section sixty D of chapter one hundred
and twelve of the General Laws, inserted by section two of this act, who
applies to the board of registration of architects prior to January first,
nineteen hundred and forty-three, and has been a citizen of the common-
wealth for at least two years prior to date of application, shall be given a
certificate of registration if qualified as follows: — '"
The reference to "section sixty D" appearing in said section 3, is plainly
a typographical error and was intended to read section C, or B, for unless
so read it is without meaning.
Reading the statute in the latter manner, I answer your question in
the affirmative.
The word "prior" may be used in more than one sense. It may refer,
as it most commonly does, to any time antecedent to a particular event
or it may refer only to a time which occurred just before an event. Its
precise meaning in any instance is to be gathered largely from the context.
When used, as in said section 3, with "to" in conjunction with a phrase
such as "at least two years" it msiy be construed as meaning "immedi-
ately prior to." Co7nmonwealth v. Stephens, 345 Pa. 436. It would appear
from the phraseology of the provision made by the Legislature in said
section 3 with regard to citizenship that it was intended that the benefits
of said section were to inure to persons who were citizens of the Common-
wealth at the time of application for registration, not to persons who
were no longer citizens at such time though possessing citizenship at some
previous period. In order to effectuate such intent, it was also provided
that the necessary citizenship existing at the time of application should
have a continuous status for two years before such application was made.
This intent was expressed by employing the words "and has been a citi-
zen of the commonwealth for at least two years prior to date of appli-
cation."
Very truly yours,
Robert T. Busknell, Attorney General.
Old Age Assistance — Husband and Wife — Tenancies.
Dec. 27, 1944.
Hon. Arthur G. Rotch, Commissioner of Public Welfare.
Dear Sir: — You have asked my opinion upon two questions of law
which are as follows: —
"(1) Where husband and wife own real estate upon which they reside,
having an equity of $5,030 as joint tenants. If husband is receiving
assistance, should he be required to execute a bond ; or if wife is receiving
assistance, should she be required to execute a bond; and what is the
requirement, if any, as to bond and mortgage where both are receiving
assistance?
(2) The same questions raised in (1) where the real estate is held as
tenants by the entirety."
48 P.D. 12.
1. In answer to your first question, I advise you that in my opinion
when husband and wife own real estate as joint tenants, upon which
estate they reside and have an equity therein of $5,030, if the husband or
wife receives old age assistance, he or she may not be required to furnish
a bond and mortgage under G. L. (Ter. Ed.) c. 118A, §4, upon the theory
that he or she owns an equity in such estate exceeding $3,000. The same
principle applies if both are receiving assistance.
G. L. (Ter. Ed.) c. USA, § 4, 'provides in part:
"The ownership of an equity in vacant land from which no income is
derived or in real estate upon which an applicant actually resides shall
not disqualify him from receiving assistance under this chapter; pro-
vided, that if such equity, . . . exceeds an average of three thousand
dollars during the five years immediately preceding his application, the
board of public welfare of the town rendering such assistance, or the
bureau of old age assistance . . . shall . . . require such applicant to
execute a bond in a penal sum equal to the amount of the equity in ex-
cess of three thousand dollars, conditioned on repayment ... of all
amounts of such assistance, without interest, such bond to be secured by
mortgage upon the applicant's real estate. . . ."
In an opinion rendered you on October 24, 1944 (ante, p. 30), I stated
that when real estate upon which husband and wife resided, owned by
them as tenants in common, had an equity of $5,030, neither one nor
both of them upon receiving old age assistance were required to furnish a
bond and mortgage under said chapter 118A, section 4, because "a tenant
in common cannot be said to be enriched b}^ that share of the total equi-
table rights in a piece of real estate which inure to the other tenant."
The same considerations apply when the estate is held by husband and
wife as joint tenants.
A joint tenancy and a tenancy in common are alike to the extent that
in both cases the co-tenants hold by unity of possession. They differ in
that joint tenants hold by one joint title and in one right, whereas ten-
ants in common hold by several titles and several rights. 33 Corpus
Juris 901.
The feature of joint tenancy which chiefly distinguishes it from tenancy
in common is the right of survivorship which exists in joint tenancy but
not in tenancy in common.
It has been stated by the Supremo Judicial Court that "the doctrine
of survivorship is the distinguishing incident of title by joint tenancy"
(Morris v. McCarty, 158 Mass. 11, 12, 13), but the right of survivorship does
not enable one to say of a joint tenant any more than of a tenant in com-
mon that he is "enriched by that share of the total equitable rights in a
piece of real estate which inure to the other tenant."
2. The foregoing principles apply also with relation to real estate of
tenants by the entirety, and I am of the opinion that a bond and mortgage
may not be required of such tenants receiving old age assistance in any
of the instances outlined in your second question.
A tenancy by the entirety is a tenancy by a husband and wife with
right of possession in the husband, and, as has been said by the Supreme
Judicial Court:
"An estate in entirety is an estate in joint tenancy, but with the limi-
tation that during their joint lives neither the husband nor the wife can
P.D. 12. • 49
destroy the right of survivorship without the assent of the other party."
Morris v. McCarty, 158 Mass. 11, 12.
Palmer v. Treasurer and Receiver General, 222 Mass. 263; I'ray v. .S7c6-
hins, 141 Mass. 219, 221.
An estate or tenancy in entirety is in its nature a joint tenancy and the
feature which chiefly distinguishes the former from the hitter tenancy in
no real sense indicates an enrichment of one tenant by that share of the
total equitable rights which inure to the other tenant any more than if
they were tenants in common. It follows, therefore, that a bond and
mortgage should not be required in the situation which you have set
forth.
Very truly yours,
Robert T. Bishnell, Attorney General.
Insurance — Classification of Fire Risks by Domestic Fire Insurance Com-
panies — Contracts made oidside the Commonwealth.
Jan. 16, 1945.
Hon. Charles F. J. HARRixciTON, Commissioner of Insurance.
Dear Sir: — You have asked my opinion upon three questions of law
relating to the classification of fire insurance risks by domestic mutual
companies under G. L. (Ter. Ed.) c. 175, § 80, as amended.
1. Your first question reads:
"May a domestic mutual fire company apportion any of its fire insur-
ance risks located in the Commonivealth and insured under contracts made
in Massachusetts into classifications other than such classifications as are
definitely specified in section 80?"
I answer your ciuestion in the negative.
Said section 80 in its applicable portions provides: (1) that the direc-
tors of a mutual fire company may fix the percentages of dividend or ex-
piration return of premium to be paid on expiring or cancelled policies
which may, with the approval of the Commissioner of Insurance, be
different from policies insuring against the different kinds of risks speci-
fied in section 47 of said chapter 175 which may be written by such a
company; (2) with regard to polici(>s insuring against loss by fire the sec-
tion specifically provides that such percentage may be different for "farm
risks, fireproof risks, . . . manufacturing or storage risks, or manufac-
turing or storage risks confined to lumber and woodworking only" from
"that for pohcies insuring other risks against fire for the same term."
The section further provides that " policies insuring risks in this common-
wealth in the same classification shall have an equal rate of dividend or
return of premium."
Inasmuch as the Legislature in the foregoing terms of saitl section SO has
specifically designated the classes of fire risks which may be given per-
centages of dividend or expiration return of premium different from the
percentage established for other fire risks, ^ it has shown an intention that
such designated classes of fire risks shall be exclusive of any other fire
risks and has not accorded authority to domestic mutual fire companies
to add to such classes or to apportion y?re risks for the purposes of giving
50 P.D. 12.
different percentages into other classifications than those set forth in the
said section.
As a principle of construction, express mention of one or more matters
in a statute is generally held to exclude by implication other similar mat-
ters not mentioned. Boston it Albany Railroad v. Commonwealth, 296
Mass. 426, 434; Spence, Bryson, Inc. v. China Products Co., 308 Mass.
81, 88.
2. Your second question reads:
"Does the requirement of section 80 that classifications of risks be
approved by the Commissioner apply to classifications of risks which are
located outside the Commonwealth and insured under contracts made outside
Massachusetts?"
I answer this question in the negative.
A contract of insurance made outside the Commonwealth is governed
by the laws of the State in which it is made. Bottomley v. Metropolitan
Life Ins. Co., 170 Mass. 274. Dolan v. Mutual Reserve Fund, 173 Mass.
197. Johnson v. Mutual Life Ins. Co., 180 Mass. 407, 408, 409. Stone v.
Old Colony Street Railway, 212 Mass. 459.
Fire policies written outside Massachusetts conforming in their terms
concerning classification for percentages of dividend or expiration return
of premiums with the laws of the State in which the contract is made are
valid. In making the various provisions respecting such classifications,
including approval by the Commissioner of Insurance, the Legislature
would appear to have been regulating the making of such contracts of fire
insurance only as are executed within the Commonwealth. As to these,
the provisions of said section 80 govern contracts made in Massachusetts
by both domestic mutual fire companies and by foreign mutual fire com-
panies (G. L. (Ter. Ed.) c. 175, § 150) irrespective of the laws of the
States where such foreign companies are situated, but as to contracts
made outside Massachusetts by domestic and foreign companies alike,
the provisions of said section 80 do not apply.
If the Legislature had intended to impose a prohibition in this connec-
tion upon domestic companies with respect to risks outside Massachu-
setts, it doubtless would have used words indicating such an intent, such
as, referring to the risks designated in section 80, "wherever located",
as was done in the amendment of R. L., c. 118, § 20, by St. 1907, c. 576,
§ 20, now embodied in G. L. (Ter. Ed.) c. 175, § 21, with respect to the
insurable limits of a single risk.
The provision in section 80 that "policies insuring risks in this com-
monwealth in the same classification shall have an equal rate of dividend
or return of premium" and the further provision that "every policy placed
in any classification made under this section shall, when issued, bear an
endorsement, satisfactory to the commissioner, to the effect that it is so
classified" indicate that the Legislature intended by the terms of section
80 to regulate the classifications therein provided for contracts made in
Massachusetts and did not intend in respect to such classifications to
attempt to regulate contracts made outside the Commonwealth.
3. Your third question reads :
"May a domestic mutual company apportion any of its risks located
outside Uie CommonwealtK and insured under contracts made outside Massa-
chusetts into classifications other than such classifications as are specified
in section 80?"
P.D. 12. 51
I answer this question to the effect that such a company may apportion
risks located and insured outside the Commonweahh into classifications
other than thosc^ specified in said section 80 if th(> hiw of the State where
the contract of insurance is made permits such classifications.
The same considerations which wen^ applicable to your .second finest ion
also apply to the third and make it apparent that th(>' implied prohibitions
contained in said section 80 of classifications other than tho.se specified
therein are not applicable to contracts of fire insurance made outside the
Commonwealth.
Very truly yours,
Robert T. Bushxell, Attorneij General.
Workmen's Compensation ~ Director of Division of the Blind — "Officer''
— '' Employee' \
Jan. 31, 1945.
Industrial Accident Board.
Dear Sirs: — You have asked my opinion upon three questions of law
regarding the application of the Workmen's Compensation Act to the
Director of the Division of the Blind.
1. Your first question reads:
"Is the Director of the Blind, appointed under G. L. (Ter. Ed.) c. 15,
§ 13, an 'employee' within the provisions of St. 1936, c. 403, amending
G. L. (Ter. Ed.) c. 152, § 69?"
i9"
I answer this question in the negative.
It is apparent from a consideration of the statutes concerning the place
of the said Director that such place is an office, not an employment, in
the service of the Commonwealth so that the incumbent is an officer and
not an employee.
The distinction between an officer and an employee is a well-recognized
one and has often been made by the Legislature and recognized by the
Supreme Judicial Court.
There are certain criteria which have been said by oiu- courts to dis-
tinguish an office from an employment: the holder of an office has en-
trusted to him some portion of the sovereign authorit}^ of the state, his
duties are not merely clerical but myst be performed in the administra-
tion of authority bestowed by law, a tenure defined by statute, a selection
of the holder by appointment imder statute rather than by a contract, a
salary fixed by law rather than by a contract of hiring. Attorneij General
V. Tillinghad, 203 Mass. 539, 543-545.
Judged by an application of this test, the place in question is an office.
The Director of the Division of the Blind is appointed by the Governor,
with the advice and consent of the Council, for a term of five 3^ears, at a
salary fixed by them (G. L. (Ter. Ed.) c. 15, § 15); he is the head of the
division (G. L. (Ter. Ed.) c. 69, § 17), and is vested with authority to
appoint and remove subordinate officers, agents, teachers and clerks, with
the advice of the advisory board in such division (G. L. (Ter. Ed.) c. 15,
§ 16) ; he is empowered to administer the law relative to the blind and
expend public moneys for the establishment of workshops and for the
relief of blind persons (G. L. (Ter. Ed.) c. 69, §§ 14, 16, 24).
52 P.D. 12.
It follows that the Director, who is the executive and administrative
head of the Division of the Blind, is an officer. See Robertson v. Commis-
missioner of Civil Service, 259 Mass. 447, 449, and cases there cited.
2. Your second question reads :
"Is the language contained in the amendment (chapter 403 of the Acts
of 1936) to the effect that the terms laborers, workmen and mechanics shall
include 'other employees . . . , regardless of the nature of their work,' to
be construed broadly as expressing the legislative intent that all 'persons'
in the employ of the commonwealth, as the governor and council may
determine, may be made subject to the provisions of sections 69 to 75,
both inclusive, of chapter 152 of the General Laws, as amended?"
I answer this question in the negative.
G. L. (Ter. Ed.) c. 152, § 69, as amended, in its applicable parts provides:
"... The terms laborers, workmen and mechanics, as used in sections
sixty-eight to seventy-five, inclusive (which sections relate to workmen's
compensation) shall include all employees of any such city or town, except
membcu's of a police or fire force, who are engaged in work being done
under a contract with the state department of public works, and shall
include other employees except members of a police or fire force, regard-
less of the nature of their work, of the commonwealth or of any such
county, city, town, district or county tuberculosis hospital district, to such
extent as the commonwealth or such county, city, town or district, acting
respectively through the governor and council, county commissioners,
city council, the qualified voters in a town or district meeting, or the
trustees of such county tuberculosis hospital district, shall determine, as
evidenced by a writing filed with the department."
The terms "laborers, workmen and mechanics" indicate employees of a
certain type. When the Legislature by an amendment of section 69, as
previously written by St. 1936, c. 403, added the words, as to which you
inquire, "other employees . . . regardless of the nature of their work,"
it did not indicate an intention to embrace officers of the Commonwealth
within the sweep of the Workmen's Compensation Law.
It is a general principle of statutory construction that a word used in a
statute is to be construed in connection with the words with which it is
associated. Commonwealth v. Dee, 222 Mass. 184, 186; Leavitt v. Leavitt,
135 Mass. 191, 193; In re Schouler, 134 Mass. 426, 427.
So the words "other employees," employed by the Legislature in said
section 69 in association with the terms "laborers, workmen and mechan-
ics "all of which terms refer to employees, are not to be construed as being
used in so broad or loose a sense as to comprehend officers as well as
employees.
The General Court has in other statutes employed the words "officers"
and "employees" as having distinct and separate meanings. Cf. G. L.
(Ter. Ed.) c. 31, § 5. If, in relation to the statute under consideration, the
Legislature had intended to make its provisions applicable to officers as
well as to employees of the Commonwealth, it doubtless would have so
indicated by using the word "officers" in addition to "employees" in the
sentence of said section 69 under consideration.
3. Your third question reads:
"Is the language 'other employees . . . regardless of the nature of
their work ' as used in said chapter 403 of the Acts of 1936 to be construed
P.D. 12.
5d
in a restricted sense as limiting its application to those who ma^». ,, , . . . •
'employees,' in the narrow sense, as that term is distinguisheu i'*^'', "i
from the word 'officers,' as so used?" *'" . .^
d by
The same considerations which required me to answer your secotf<e
question in the negative make it necessary for me to answer this question
in the nffirmati\c.
\'ery truly yours,
Clarence A. Barnes, Attorney General.
Civil Service — Preference of Veterans in Promotional Examinations.
Feb. 5, 1945.
Civil Service Commission.
Dear Sirs: — You have informed me that:
"A competitive promotional examination, provided foi- in th(> second
.sentence of section 15 of the General Laws, chapter 31, has been held by
this Division to establish an eligible list from which a promotion might be
made of a superintendent of sewers of the Metropolitan District Com-
mission. Several of those who took the examination are veterans, and
some are also disabled veterans. The Director of Civil Service was re-
quested to give one of the disabled veterans who passed this promotional
examination preference as a disabled veteran. The Director denied the
request on his finding that there was no provision therefor in the Civil
Service Law or Rules. This action of the Director has been appealed to
the Civil Service Commission."
You have asked my opinion "as to whether or not preference to dis-
abled veterans can be allowed by the Director in preparing a list of eligibles
for promotion to the position to which reference is made."
I advise you that in my opinion a preference in promotion as a result of
a competitive promotional examination such as you have described may
not be given a disabled veteran.
The second sentence of the last paragraph of G. L. (Ter. Ed.) c. 31,
§ 15, as amended, to which you refer, provides with relation to promotions
in the classified Civil Service other than a special type of promotion men-
tioned in the first sentence, that:
". . . any promotion shall be made after a competitive promotional
examination open to the next lower grades in succession in the service of
the same department, board or commission until a sufficient number of
applicants to hold a competitive examination is obtained."
It is provided in C;. L. (Ter. Ed.) c. 31, § 23, that:
". . .A disabled veteran shall be appointed and employed in preference
to all other persons, including veterans."
This provision was introduced into said section 23 in 1922 by chapter
463 of that year.
Section 23 also provides a preference for veterans to positions in the
classified Civil Service, limited to preference in '' appointmenV only. The
distinction between these two forms of preferences, involving the added
advantage given the disabled veteran by preference in "employment" as
well as in appointment, is well recognized. Younie v. Director of the Divi-
52 P.D. 12.
It ioWQ^mploy merit Compensation, 306 Mass. 567. McCabe v. Judge
head cfstrict Court, 277 Mass. 55.
mzae Legislature has not by specific enactment provided a preference in
omotion for veterans or disabled veterans.
It has by implication made provision so that such a preference in pro-
motion may come into existence, for by G. L. (Ter. Ed.) c. 31, § 3, it has
provided with relation to the Rules of the Civil Service Commission that:
"... Such rules . . . shall include provisions for the following: —
(/) Preference to veterans in appointment and promotion, not incon-
sistent with this chapter."
The terms of G. L. (Ter. Ed.) c. 31, § 3 (f), were contained in G. L.
(Ter. Ed.) c. 31, § 3, when said St. 1922, c. 463, was enacted. Voume v.
Director of the Division of Unemployment Compensation, 306 Mass. 567, 571.
The legislative provision, however, is not self-executing by its terms;
it requires to be implemented by the rule-making power of your Com-
mission. This power your Commission has never exercised and in spite
of the requirement that the rules formulated by the Commission "shall
include" provisions concerning veterans' preferences, both in appointment
and promotion, no rule or regulation with regard to preference of veterans
in promotions has ever been made.
From the manner of employment by the Legislature in said chapter 31
of the words "appointment", "employment" and "promotion" as dis-
tinct and separate terms, it is clear that none of the three words was used
as embodying the meaning of either of the others.
It follows that at the present time, since no rule with relation to veterans'
preferences in promotion has been made by your Commission, no provi-
sion of law exists whereby in a competitive examination for promotion
from a position in one class or grade to a position in a higher grade or class,
held under the terms of the second sentence of the last paragraph of said
section 15, preference may be given to a disabled veteran.
Very truly yours,
Clarence A. Barnes, Attorney General.
Civil Service — Custodian of Municipal Building — '^0[ficer" —
''Employee".
Feb. 9, 1945.
Hon. Thomas J. Greehan, Director of Civil Service.
De.^r Sir : — You have asked my opinion as to whether the position
of custodian of the G. A. R. Memorial Building in Lynn is subject to the
provisions of the Civil Service Law.
I answer j^our question in the affirmative.
By the terms of the Civil Service Rules (Rule 4.1.) made under authority
of G. L. (Ter. Ed.) c. 31, § 3, the position of custodian of a municipal pub-
lic building would appear to have been made subject to the Civil Service
Law by the establishment through said Rule of Class 24 of the classified
Civil Service. This class is described in said Rule as consisting of:
"Janitors, custodians, and persons employed in the care of schools, or
other public buildings."
VAX 12. 55
By Spec. St. 1919, o. 220, the City of Lynn was autliorized to accept in
trust a conveyance of the said Grand Army building;, and by section 4 of
said chapter 220 an unpaid board of seven trustees, to be appointed by
the mayor with the api)roval of tlie city council, was created by the statute
and empowered :
"to have charge and care of the building subject to the approval of the
mayor and city council."
Provision was made in said section 4 for a custodian of the building and
authority for his appointment and removal was given as follows:
"They (the trustees) shall appoint a custodian therefor, and shall fix
his compensation but the custodian may at any time be removed by the
trustees, or a majority of them, without such apjiroval. The trustees may
appoint other necessary officers or employees for the care of the building,
and may fix their compensation."
The duties of the custodian are not set forth in the statute and there is
nothing to indicate that his position is other than an employment. There
is nothmg about the position of a custodian of a building, as the word
"custodian" is ordinarily used, which tends by necessary implication to
carry with it a grant of any part of the authority of the state or munici-
pality as such, so as to raise the position to the status of an "office." The
use of the words "other necessary officers or employees" in the last sen-
tence of said section 4 above quoted, does not indicate a legislative intent
to make the place of custodian an office.
It follows that the place in question is not an office and the incumbent
not an "officer" as the word "officer" is used in G. L. (Ter. Ed.) c. 31, § 4,
exempting certain "officers" from the sweep of the Civil Service Law in
the following language:
"No rule made by the (civil service) commission shall apply to the
selection or appointment of any of the following:
. . . officers whose appointment is subject to confirmation by the . . .
city council of any city; ..."
The place in question does not fall within any of the other exemptions
from the Civil Service Law provided for in said section 5.
There is nothing in the phraseology of said section 4 of chapter 220 with
relation to the place which by implication indicates a legislative intent to
exempt it from the force of the Civil Service Law. The provision in said
section 4 that "the custodian may at any time be removed by the trustees
. . . without such approval" (i.e. approval by the mayor and city council),
while providing that removal from the position may be made by the trus-
tees without tlie necessity of obtaining approval of their action from the
mayor and council, as might otherwise have been thought to be required
by the phrase in said section 4, "the trustees shall have charge and care of
the building and of its maintenance and use, subject to the apjoroval of the
mayor and of the city council," does not vest the trustees with power to
remove in any other fashion than that required by the Civil Service Law
in G. L. (Ter. Ed.) c. 81, § 43.
It has not been held that an intent on the part of the Legislature to
exclude a position from the benefits of the Civil Service Law can properly
be said to arise by implication from the wording of a statute except when a
56 P.D. 12.
specific provision relative to appointment or removal directly contrary
to the general terms of G. L. (Ter. Ed.) c. 31, has been set forth, a provi-
sion, for example, authorizing removal at "pleasure." Opinion of the
Attorney General to the Civil Service Commission (Attorney General's
Report for year ending June 30, 1944, p. 144). No such provision with
relation to the place in question has been made by the Legislature.
Unless a place in the public service has been specifically or impliedly
excluded by the Legislature from the control of the Civil Service Law and
Rules, or is within some group of places w^hich has been so specifically or
impliedly excluded, it is within the sweep of those measures and is governed
by them when, like the place under consideration, it falls within a, classi-
ficp^tion established by the Civil Service Commission. Wells v. Commis-
sioner of Public Works, 253 Mass. 416, 419.
Very truly yours,
Clarence A. Barnes, Attorney General.
Civil Service — Promotions — G. L. {Ter. Ed.) c. 31, § 15.
Feb. 26, 1945.
Hon. Thomas J. Greehan, Director of Civil Service.
Dear Sir : — In a recent letter you have written me as follows :
"I have been requested to approve the promotion of an employee who
is the fifth oldest employee in point of service in the next lower grade, in a
case where the oldest and second oldest employees are unwilling to be con-
sidered for the promotion.
The question has arisen as to whether the words quoted mean the oldest,
second oldest or third oldest who are willing to accept such promotion.
I would, therefore, respectfully request your opinion on the point raised,
all the other conditions for approval of promotion being present except
that of determining the meaning of these words."
G. L. (Ter. Ed.) c. 31, § 15, as amended, in its applicable parts reads:
". . . an appointing official may with the approval of the director pro-
mote in the official service an emploj^ee in one grade to the next higher
grade; provided, that such employee has been employed at least three
years in the lower grade, is the oldest employee, the second oldest employee
or the third oldest employee therein in point of service, and that such em-
ployee passes a qualifjnng examination ..."
The phraseology used by the Legislature in the quoted sentence is ex-
plicit as to the employees who may be promoted in the manner described.
Such specific provision by a well-recognized rule of statutory construction
excludes the inclusion therein of employees not designated in view of the
fact that such a construction is not opposed to the purposes of the Civil
Service Law^ and there appears to be nothing in the statute to indicate a
legislative intent to give the privilege of promotion without a competitive
examination to anyone but the three employees in the appropriate grades
who are actually the three oldest "in point of service." Words such as
"who are wilhng to accept such promotion" cannot properly be read into
the statute.
Very truly yours,
Clarence A. Barnes, Attorney General.
P.D. 12. 57
Food — Sale of Canned Lobster Meat — Label.
March 5, 1945.
Mr. Ralph H. Osborn, Director, Division of Marine Fisheries.
Dear Sir: — You have asked my opinion as to whether it is legal to
sell in the Commonwealth canned lobster meat derived from "erustacea
of the species genus poUnunis" labeled with various trade names and with
the word "lobster" preceded by the word "rock."
I am of the opinion that a sale of such lobster meat so labeled would be
in violation of G. L. (Ter. Ed.) c. 130, § 51.
Said section reads:
"No person shall sell, or represent for the purpose of sale, any lobster
as a native lobster unless the same shall have been originally caught or
taken in the coastal waters; nor shall any person so sell, or represent for
the purpose of sale, any crustacean as a lobster unless the same is of the
species known as Homarus americanus; nor shall any person so sell, or
represent for the purpose of sale, any meat as lobster meat unless such meat
is wholly from crustaceans of such species. Violation of any provision of
this section shall be punished by a fine of not less than ten nor more than
fifty dollars."
It would appear that the described labeling represents the canned meat
to be "lobster meat." Neither the trade names nor the use of the word
"rock" can reasonably be said to alter the nature of such representation.
You have stated the fact to be that the canned meat in question is not
from a lobster of the species known as "Homarus americanus." This
being so, its sale as "lobster meat" is contrary to the provisions of said
section 51.
Section 46 of said chapter 130 permits the sale of canned "lobster meat"
when certified by health authorities under certain designated circumstances
but the provisions of section 46 do not authorize the sale of canned "lobster
meat" of a kind forbidden by the specific provisions of said section 51.
The sections of said chapter 130, as of all statutes, are to be read together
so as to form as far as possible an harmonious whole {Killam v. March,
316 Mass. 646; Fluett v. McCabe, 299 Mass. 173, 178.).
Very truly yours,
Clarence A. Barnes, Attorney General.
Insurance — Fraternal Benefit Society — By-Laws — Delegation of
Authority — Election of Officers.
March 9, 1945.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir: — You have informed me that:
"In connection with a recent examination conducted by this Depart-
ment of the affairs of a domestic fraternal benefit society incorporated
on the Lodge System, a question has arisen as to the power of the society to
enact a by-law authorizing its executive committee which has the powers
of directors to appoint the supreme treasurer and the supreme secretary."
58 P.D. 12.
and you have asked my opinion as follows:
"Will you please advise us as to whether or not a society of this kind
may by by-law delegate to its executive committee the right to appoint
its supreme treasurer and its supreme secretary."
I am of the opinion that such a society may not by by-law delegate to
its executive committee the right to appoint its supreme treasurer and
secretary.
The method of organizing such a society at its first meeting is set forth
in G. L. (Ter. Ed.) c. 176, § 7. The third sentence of said section 7 reads:
". . . At such first meeting, including any reasonable adjournment
thereof, an organization shall be effected by the choice by ballot of a
temporary clerk, who shall be sworn, and by the adoption of by-laws,
and the election by ballot of directors, president, secretary and treasurer,
or other officers corresponding thereto, with powers and duties similar to
those of such officers, and such other officers as the by-laws may provide
for; but at such election no person shall be eligible as a director or other
officer who has not subscribed the agreement of association."
Section 3 of said chapter 176, as amended, reads as follows:
' "Any such society shall be deemed to have a representative form of
government when it shall provide in its constitution and by-laws for a
supreme legislative or governing body, composed of representatives
elected either by the members or by delegates elected directly or indirectly
by the members, together with such other members as may be prescribed
by its constitution and by-laws; and provided, further, that the meetings
of the supreme or governing body and the election of officers, representatives
or delegates shall be held as often as once in four years, and that a complete
stenographic record of the proceedings of each such meeting, so far as it
■ relates to matters within the jurisdiction of the commissioner of insur-
ance, shall be filed in the home office of the society within thirty days
after the adjournment of such meeting. The members, officers, representa-
tives or delegates of a fraternal benefit society shall not vote by proxy."
Section 32 of said chapter 176, as amended, relative to the constitution
and by-laws of such a society, provides:
"Every society may, subject to this chapter, make a constitution and
by-laws for its government, admission of members, management of its
affairs, and the fixing and readjusting of the rates and contributions of its
members frpm time to time, and may amend its constitution and by-laws,
and it shall have such other powers as are necessary or incidental to carry
into effect its objects and purposes. The constitution and by-laws may
prescribe the officers and elected members of standing committees, who
may be ex officiis directors or other officers corresponding thereto, and
may, with the approval of the commissioner, provide for a system of absent
voting, other than proxy voting, under which absent members entitled
to vote may vote in the election of the officers and directors or similar
governing body; provided, that the commissioner shall not approve any
provision for such a system of absent voting unless the society submitting
such provision for approval satisfies the commissioner that absent voting
is necessary in order to have an adequate representation of the member-
ship of the society at its elections."
P.D. 12. ')[)
St. 1901, c. 422, from which the provisions of said sections 3, 7 and 32
stem, provided in its section 4 for the election at tlie first meeting of such a
societv for organization of officers bv ballot, and in section 6 provided
that ■/
"Officers chosen as requinHl in section four shall hold office until the
next meeting of the corporation for the election of officers. ... At the
said meeting, and thereafter at least biennially, the officers shall be chosen,
and shall hold office until their successors are elected and qualified. . . ."
Section 5 of said chapter 422 provided with relation to b3'-laws in part
as follows:
"The by-laws may prescribe, where no other provision is specially made,^
the manner in which and the officers ... by whom the piu'poses of the
corporation shall be carried out; ..."
Similar provisions, including one for the election of a secretary at the
first meeting, appear likewise in the revision of the law relative to such
societies in St. 1911, c. 628.
In said chapter 422, section 3, the Legislature made plain its intent that
the officers elected at the first meeting of such society were to be there-
after elected by the members, and by said section 5 vaiuh clear that the
by-laws might prescribe the manner of election of officers only in such
instances as had not been provided for by statute.
I am of the opinion that in the compilation of the law relative to such
societies in said chapter 176 of the General Laws, the Legislature in re-
quiring the election of the designated officers at the first meeting and "the
election of officers ..." thereafter "as often as once in four years,"
provided the manner of such election, and that the power to make by-
laws given by said section 32 of chapter 176 was not intended to grant
any authority to make by-laws with relation to the manner of election of
officers when such provision had been specifically made by the Legislature
itself, as in said section's 3 and 5.
\'erbal changes in the re-enactment or codification of earlier statutes
are to be treated, by a familiar principle of statutory construction, as not
altering the meaning of such statutes but as continuations of the previous
law. Delaney v. Grand Lodge A.O.U.W., 244 Mass. 556, 563. Davis v.
School Committee, 307 Mass. 354, 361, 363.
Very truly yours,
Clarence A. Barnes, Attorney General.
Constitutional Law — Alcoholic Beverages — Sales — Aliens — Treaty with
Great Britain.
March 9, 1945.
His Excellency Maurice J. Tobin, Governor of the Commonwealth.
Sir: — Your Excellency has advised me of the case of a British suljject
who was discharged from her position, which I assume from what you
have written, to have been that of a waitress, serving alcoholic beverages
in a restaurant licensed under the provisions of G. L. (Ter. Ed.) c. 138,
as amended, by her employer because he was threatened with prosecution
under G. L. (ter. Ed.) c. 138, § 31, as amended, for employing her since
she was not a citizen of the United States.
60 P.D. 12.
You have asked my opinion as to whether said section 31 is repugnant
to the terms of the existing Treaty between the United States and Great
Britain made in 1815, and with minor changes still in force.
Statutes which are in opposition or repugnant to treaties of the United
States are of no more force than unconstitutional statutes. Todok v.
Union State Bank, 281 U. S. 449, 453; In re Wyman, 191 Mass. 276.
Statutes, however, are to be construed whenever reasonably possible so
as to give them an interpretation which will prevent their being invalid
or ineffective (Lehan v. North Main St. Garage, 312 Mass. 547, 559).
Construed so as to prohibit the employment of a British subject to
serve liquor in a licensed restaurant, the said section would in my opinion
be repugnant to said Treaty*
To be valid and enforceable, the section is to be construed as having
no application to aliens who are British subjects.
Said G. L. (Ter. Ed.) c. 138, § 31, reads:
"No person, except a citizen of the United States, shall sell, serve or
deliver any alcoholic beverages or alcohol on any premises covered by a
license, permit or certificate of fitness issued under this chapter, and no
holder of such a license, permit or certificate of fitness shall, directly or
through any agent, employ or permit any such person to sell, serve or
deliver any alcoholic beverages or alcohol upon the premises covered by
such license, permit or certificate. No holder of a transportation permit
issued under this chapter shall, directly or through any agent, employ or
permit any person, except such a citizen, to transport any alcoholic bever-
ages or alcohol. Whoever violates any provision of this section shall be
punished by a fine of not less than twenty-five nor more than one hundred
dollars, and such a violation, if committed by the holder of a license,
permit or certificate of fitness issued under this chapter, shall be sufficient
cause for the revocation or suspension thereof."
The applicable portion of the existing Treaty between the United States
and Great Britain (8 Stat. 228) reads:
"Article I.
There shall be between the territories of the United States of America,
and all the territories of His Britannick majesty in Europe, a reciprocal
liberty of commerce. The inhabitants of the two countries, respectively,
shall have liberty freely and securely to come with their ships and cargoes
to all such places, ports, and rivers, in the territories aforesaid, to which
other foreigners are permitted to come, to enter into the same, and to
remain and reside in any parts of the said territories, respectively; also
to hire and occupy houses and warehouses for the purposes of their com-
merce; and, generally, the merchants and traders of each nation, respec-
tively, shall enjoy the most complete protection and security for their
commerce, but subject always to the laws and statutes of the two countries,
respectively."
Although it is true that not every gainful occupation in which a British
subject may engage while in the United States can reasonably be said to
be so related to "commerce" as to be within the guaranties of the said
Treaty for securit}^ to carry on commerce (Clark v. Deckerbach, 274 U. S.
392), yet a hberal rather than a narrow construction should be given to
P.D. 12. 61
the phraseology of the Treaty {In re Wymau, 191 Mass. 276, 278; Tucker
V. Alexandroff] 183 U. S. 424, 437; Asakura v. City of Seattle, 265 U. S.
332, 342), to effectuate what under present-day conceptions would appear
to be the intent of the treaty makers, namely, to accord the same liberty
to pursue commercial affairs to British subjects as to citizens of the United
States.
To sell alcoholic beverages in a licensed restaurant or to assist in selling
by serving them as a waiter or waitress is, as has been held by one of my
predecessors in office (Attorney General's Report, 1938, pp. 56, 57), to
perform commercial work and to carry on commercial affairs so related to
"commerce" as to be comprehended by the quoted word as used in the
said Treaty and to bring the person so emploj^ed within the sweep of the
words "merchants and traders" as set forth in the Treaty.
It follows that the said section 31 does not prohibit the employment of
British subjects to perform the work described therein in connection with
the sale, service or delivery of alcoholic beverages.
Very truly yours,
Clarence A. Barnes, Attorney General.
Military Leave of Absence — Resignation — United States Puhlic
Health Service.
March 14, 1945.
Hon. Clifton T. Perkins, Commissioner of Mental Health.
Dear Sir: — You have asked my opinion upon the following question
with relation to the specific case of Dr. Irene O. Grandmont, formerly
Assistant Physician at the Foxborough State Hospital:
"Does an Assistant Physician who enters the United States Public
Health Service come under the provisions of Chapter 708 of the Acts of
1941, when the physician in question was assigned to duty immediately
with the United States Coast Guard, according to data submitted by
her?"
You have informed me that Dr. Grandmont did not file a written resigna-
tion when leaving the service of the Commonwealth at some time prior
to December 7, 1944, but gave only an oral notice of resignation to the
superintendent of the said hospital; that at the time of giving such notice
she informed the superintendent that she was leaving to enter the United
States Public Health Service; that subsequently she did enter the Public
Health Service; that immediately thereafter she was detailed to serve in
the United States Coast Guard.
The United States Public Health Service (U. S. C. Title 42) is not as
such a part of the, naval or military forces of the United States. • The
personnel of the United States Coast Guard is a part of the naval forces
of the United States (U. S. C. A. 14, 1943, Pub. Law 184, c. 298) by virtue
of an executive order of the President (Exec. Ord. Nov. 1, 1941, P>d. Reg.
Vol. 6, p. 215).
St. 1941, c. 708, § 1, as amended by St. 1943, c. 548, provides that :
"... any person who . . . shall have tendered his resignation from
an office or position in the service of the commonwealth, . . . for the
purpose of serving in the military or naval forces of the United States and
62 P.D. 12.
who does so serve , . . shall ... be deemed to be ... on leave of
absence; . . .
... If no written resignation is filed, entrance into the military or naval
service of the United States . . . shall he 'prima facie evidence that his
service to the commonwealth ... is terminated for the purpose of entering
said military or naval service."
As appears by the foregoing statutory provisions, the fact that Dr.
Grandmont did not enter the naval forces of the United States in the Coast
Guard after resigning, is prima facie evidence that she left the service of the
Commonwealth for the purpose of entering such forces.
The Attorney General does not pass upon questions of fact.
Upon the facts as you have presented them to me, it cannot be said,
as a matter of law, that the mere statement of Dr. Grandmont to the
superintendent, that she was leaving to enter the Public Health Service
(a service from which she might be detailed to the Coast Guard) is in
itself evidence of a lack of intent to enter the naval forces at the time of
resignation sufficient to overcome the presumption arising by force of the
statute from her actual entry into such naval forces. It may well be that
at the time of resignation she knew that by prior arrangement she was to
enter the Coast Guard through the medium of induction into the Public
Health Service.
It follows that upon the facts of which you have informed me Dr.
Grandmont should be regarded as upon a leave of absence such as is men-
tioned in said section 1, commonly called a military leave.
Very truly yours,
Clarence A. Barnes, Attorney General.
Division of the Blind — Vocational Rehabilitation — Federal Funds.
.April 5, 1945.
Hon. Julius E. Warren, Coynmissioner of Education.
Dear Sir: — You have asked my opinion upon three questions in the
following communication:
"The Division of the Bhnd, Department of Education, is about to
embark upon a program for the blind which contemplates participation
in the benefits made available under Public Law 113, 78th- Congress, and
the rules and regulations promulgated thereunder.
Therefore, I respectfully request your opinion on the following questions
which relate to the conduct of the above-mentioned program.
1. Is the Division of the Blind, State Department of Education, au-
thorized to provide vocational rehabilitation for the adult blind?
2. If so, is said division authorized to expend state funds for this pur-
pose"
3. If so, may federal funds be received and expended as provided for
in the vocational rehabilitation act, amendments of 1943, and the regula-
tions issued pursuant thereunder."
1. "Vocational rehabilitation" is defined by Congress in the Vocational
Rehabilitation Act of June 2, 1920, as amended by Public Law 113 of the
78th Congress, to which you refer, as "any services necessary to render a
P.D. 12. 63
disabled individual fit to ongago in a rcmunorative occupation." The
words appear to be used in the same sense in G. L. (Ter. Ed.) c. 15, § 6A,
and I assume that they are so employed in your letter.
Although broad powers are given to the Director of the Blind to amelio-
rate the condition of the blind, authority to engage in "vocational reha-
bilitation" is not specifically conferred. Doubtless vocational rehabilita-
tion may be the result in some in.stances of the exercise by the division of
its power to ameliorate the condition of the l)lind, and since this is so
such incidental "vocational rehabilitation'' and the expenditui'e of funds
which make it possible are within the authority of the Division of the
Blind, so that I answer your first two questions in the affirmative.
2. It does not follow, however, that the Division of the Blind is author-
ized "to embark upon a program for the blind which contemplates par-
ticipation in the benefits made available under Public Law 113, 78th
Congress," as suggested in vour letter.
Public Law 113 of the 78th Congress (57 Stat., pt. 1, c. 190) amends
"An Act to provide for the promotion of vocational rehabilitation of per-
sons disabled in industrv or otherwise and their return to civil employ-
ment", approved June 2, 1920 (U. S. C, title 29, c. 4, §§ 31-45B) so as
to make the benefits of the act applicable to "war disabled civilians."
By the enactment of G. L. (Ter. Ed.) c. 15, § 6A, as amended, the
Legislature has created the State Board of Vocational Education and has
specifically empowered such Board to co-operate with a federal agency in
the administration of said Congressional act of June 2, 1920, and acts in
amendment thereof, of which acts in amendment said Public Law 113 is
one. The said Board is also authorized by said section 6A to expend "any
funds received by the state treasurer from the federal government under
the provisions of said act or acts" of Congress.
Moreover, by G. L. (Ter. Ed.) c. 74, § 22A, as amended, said State
Board is fully empowered to do all things necessary to carry out a broad
program for "vocational rehabilitation" of persons disabled in industry
or otherwise, with the use of federal funds, a progi'am which may embrace
specific training for the "vocational rehabilitation" of the blind.
Consequently, since the said Board has been so specifically authorized
to act in conjunction with the federal authorities in carrying out the
federal act as amended and to expend the money receivable under the
act, no authority, by implication or otherwise, is vested in the Division
of the Blind with respect to the administration of the federal act or the
expenditure of the funds paid to the State under it.
Very truly j'ours,
Clarence A. Barnes, Attorney General.
Constitutional Law — Rules and Regulations of State Departments — 7s/)-
croachment of Legislature upon Authority of the Executive Branch of
the Government.
April 13, 1945.
Hon. Charles F. Holman, Chairman, Legislative Committee on Depart-
mental Rules and Regidations.
Dear Sir: — You have asked my opinion on behalf of said committee
as to the constitutionality, if enacted into law, of a propos(>d measure,
entitled "An Act establishing a Joint Standing Committee of the General
04 P.D. 12.
Court to act with respect to rules and regulations of state departments,
commissions, boards and officials."
I am of the opinion that this proposed measure, if enacted into law,
would not be constitutional since it provides for the exercise by the legis-
lative department of the government of executive powers in contraven-
tion of the prohibitions of Article XXX of Part the First of the Constitu-
tion of the Commonwealth. Furthermore, the manner provided for the
establishment of the committee which is to administer the provisions of
the measure would appear to be in violation of Article LXVI of the Amend-
ments to the Constitution.
A proposed act similar in all material respects to the instant measure
was submitted in 1943 by the House Committee on Ways and Means to
the then Attorney General, and the latter, on May 26, 1943 (Attorney
General's Report for the year ending June 30, 1944, p. 51), rendered an
opinion to that committee to the effect that the proposed act would be
unconstitutional and set forth at length the reasons which induce a con-
clusion that such a measure is not constitutional. I am in accord with
that opinion.
Very truly yours,
Clarence A. Barnes, Attorney General.
Insurance — Dornestic Stock Liahility Insurance Company — Increase of
Capital — Commissioner's Approval.
April 16, 1945.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir.* — In a recent communication you have written me that :
''A domestic stock liability insurance company which has voted to in-
crease its capital by a transfer from its surplus in the manner outlined in
G. L. c. 175, § 70, has forwarded to the Department within the prescribed
time the documents executed in connection with such proposed increase.
Previous to taking this vote the company's capital, surplus and liabili-
ties were as follows:
Capital $350,000.00
Surplus $400,000.00
Liabilities $2,135,626.02
The proposed stock dividend which is in the amount of $150,000 would
increase the company's capital to $500,000 and decrease its surplus to
$250,000 but would not change the total amount available for the protec-
tion of policyholders, although it would remove from the free surplus a
substantial sum which otherwise would be available in the future if ad- ,
verse circumstances were encountered." m
In connection with the foregoing facts you have asked my opinion on
two questions. Your first question reads:
"In taking action under section 70 is the Commissioner's duty merely
a ministerial act in which he is limited to ascertaining that the increase in
capital has been made in accordance with the certificate filed with him
within thirty days after the issuance of the new stock and which sets
forth the proceedings thereof and the amount of such increase and that
P.D. 12. 05
such certificate has been signed and sworn to by the president, secretary
and a majority of the directors of the company and also to passing upon the
form of the documents presented to him for approval?"
1. I answer your first question in the affirmative.
It is to be noted that the Legislature has enacted no requirement as to
the amount of surplus which such an insurance company as you refer to
must have nor established any provision as to any ratio which must be
maintained between the capital of such a company and its surplus or be-
tween surplus and outstanding liabilities.
As you have yourself pointed out in your letter, the proposed increase
in capital under consideration, although involving a change in the amount
of capital and surplus, respectively, does not change the total amount of
the company's capital and surplus available for the protection of policy-
holders.
G. L. (Ter. Ed.) c. 175, § 70, sets forth in some detail the two ways in
which a domestic stock insurance company may increase its capital and
the various steps which must be taken by a company to effect such in-
crease. (These ways were considered at length in an opinion of October
17, 1930, *by one of my predecessors in office, given to the then Com-
missioner of Insurance. Report of the Attorney General, 1930, p. 120.)
After setting forth specifically the steps necessary to be taken by a com-
pany to effect an increase of capital, said section 70 provides:
"In whichever mode the increase is made, the company shall, within
thirty days after the issue of such certificates, submit to the commissioner
a certificate setting forth the proceedings thereof and the amount of such
increase, signed and sworn to by its president and secretary and a majority
of its directors. If the commissioner finds that the increase is made in
conformity to law, he shall endorse his approval thereon ; and upon filing
such certificate so endorsed with the state secretary and the payment of a
fee of one twentieth of one per cent of the amount by which the capital
is increased for filing the same, the company may transact business upon
the capital as increased, and the commissioner shall, upon payment of the
fee prescribed by section fourteen, issue his certificate to that effect."
The phrase "if the commissioner finds that the increase is made in con-
formity to law, he shall endorse his approval thereon," as emplo3'-ed in
said section 70, does not indicate a legislative intent to vest the Commis-
sioner with discretion to determine the; amount of surplus which must be
available following an increase in capital, but merely to require him to
ascertain whether in making an increase in capital the company has
taken those steps and fulfilled those requirements which the Legisla-
ture has specified in said section 70 as necessary prerequisites to such
an increase.
The Commissioner is not authorized to withhold his approval to an
increase in capital, or the certificate that a company may transact business
upon such an increased capital, because of his own views as to the de-
sirability of such an increase.
Said section 70, in its. provision for an approval by the Commissioner of
Insurance of an increase in capital voted ])y a company, does not contain
a phrase such as is to be found in section 71 of said chapter 175, wherein^
with relation to the Commissioner's approval of a reduction of capital
stock it is provided:
66 P.D. 12.
"If the commissioner JBnds that the reduction is made in conformity to
law and that it ivill not he prejudicial to the public, he shall endorse his
approval thereon."
The general provisions of section 47 of said chapter 175, to which you
refer, which relate to examination of insurance companies and inspection
of their affairs, business meetings and dealings with their policyholders,
do not enlarge the scope of the particular authority to approve or dis-
approve an increase of capital stock given to the Commissioner by said
section 70, nor do the terms of section 72 of said chapter 175 have such an
effect.
Said section 70 specifically provides that "if the commissioner finds
that the increase is made in conformity to law, he shall endorse his ap-
proval thereon." "Shall" as so used is a mandatory word inconsistent
with the idea of discretion. The phraseology of section 70 requires that if
the Commissioner finds that the law specifically applicable to the ways and
manner in which a company may increase its capital has been complied
with, he "shall" endorse his approval and thereafter "shall" issue a
certificate. There is no suggestion in the language of the section that the
Commissioner may approve some increases of capital stock made in con-
formity with the particular provisions of said section 70, and reject others
so made, according to his own opinion as to desirability. See Elmer v.
Commissioner of Insurance, 304 Mass. 194, 196.
2. Your second question reads:
"Is it the duty of the Commissioner to make an inquiry into the general
financial condition of an insurance company proposing to increase its
capital under section 70 and may he use the discretion of a reasonably
prudent man in determining whether such action is in the interest of
policyholders and the public to approve or disapprove such increase?"
I answer this question in the negative for reasons which have been set
forth in my answef to your first question.
Very truly yours,
Clarence A. Barnes, Attorney General.
Insurance — Fraternal Benefit Society — Annual Meeting — Officers Holding
Over — Authority of Commissioner.
April 24, 1945.
Hon. Charles F. J. Harrington, Commissioner of Insurance.
Dear Sir: — You have written me with relation to the approaching
annual session of the High Court of the Massachusetts Catholic Order of
Foresters, an incorporated fraternal benefit society, and have informed
me that the Order is having difficulty in obtaining the necessary permis-
sion from the Federal "War Committee on Conventions" to hold such
session.
You have directed my attention to Public Law 15, section 2, enacted by
Congress and signed by the President on March 9, 1945, which in its
applicable part reads :
"Section 2. (a) The business of insurance, and every person engaged
therein, shall be subject to the laws of the several States which relate to
the regulation or taxation of such business.
P.D. 12. 67
(6) No Act of Congress shall bo construed to invalidate, impair, or
supersede any law enacted by any State for the purpose of regulating the
business of insurance ..."
In this connection you have asked my opinion upon the two following
questions :
"1. In view of the requirement of the Society's Constitution and By-
Laws that the Annual Session of the High Court be held annually between
May 15 and May 31, may the Commissioner of Insurance order the
Society to hold said Annual Session?
2. Does section 2 of Public Law 15 signed on March 9, 1945, repeal or
supersede the Rules and Regulations of the Director of War Mobilization
and Reconversion governing the War Committee on Conventions thereby
rendering such Rules and Regulations inapplicable to the Business of In-
surance and persons engaged therein and placing the responsibility for the
supervision of the insurance business upon the supervisory officers of the
several states?"
1. I answer your first question in the negative.
The laws of the Commonwealth embodied in G. L. (Ter. Ed.) c. 176, as
amended, with relation to fraternal benefit societies, of which the Massachu-
setts Catholic Order of Foresters is one, do not empower you to order or
direct such societies to hold annual meetings. Said Public Law 15 does
not purport to enlarge the powers of the Commissioner of Insurance in the
various states, nor does it appear to have been the intent of Congress in
passing such law to increase the authority of those entrusted by the states
with the administration of the insurance laws.
2. I answer your second question in the negative.
The provisions of said section 2 of Public Law 15 do not repeal or super-
sede "the Rules and Regulations of the Director of War Mobilization and
Reconversion governing the War Committee on Conventions." Such
rules are of general application, as they affect the holding of conventions
and do not invalidate or impair state laws regulating insurance as such.
You have also asked third and fourth questions which read:
"3. Since the Constitution provides that officers shall be elected an-
nually and makes no provision for their continuance in office until their
successors are elected, will the officers be regarded as holding office legally
beyond the period for which they were elected?
4. Will the acts of the officers perfoi'med after the date of expiration of
the terms for which they were elected be legal and valid in every respect
without a proclamation by the Governor under his War Emergency
powers, or a special act of the Legislature?"
3. I answer both these questions to the effect that under the circum-
stances set forth in your letter, if officers of the Order cannot be elected
at the annual meeting, the present officers would, as a matter of law, like
public officers, be regarded as holding over until their successors are
chosen. The acts of such officers when so holding over as at least de facto
officers would be treated as valid as concerns the public and third persons
dealing with them and, since under the stated conditions no factional con-
troversy with relation to title to the offices would e.xist, as concerns the
Order and its members. Stratton Mass. Gold Mines Co. v. Davis, 222 Mass.
549, 553, 564. Thompson on Corporations, Vol. 2, §§ 1555, 1557, and
cases there cited.
68 P.D. 12.
You have also asked me four other questions relative to possible con-
tingencies which might arise in the future if the annual session of the
society in question is not held.
These questions relate to matters with regard to which you are not
presently required to perform any official duties, are based on speculation
as to possible future factual contingencies, and are hypothetical in char-
acter. Consequently, they are such as the Attorney General is not required
to answer. Attorney General's Report, 1935, p. 31; I Op. Atty. Gen. 273,
275; II Op. Atty. Gen. 100; III Op. Atty. Gen. 425.
\'ery truly yours,
CLARE^x'E A. Barnes, Attorney General.
Division of Fisheries and Game — Authority of -Officers to enforce Game
Laws on Public Lands including Area of Quahhin Reservoir.
April 26, 1945.
Hon. Raymond J. Kenney, Cojnmissioner of Conservation.
Dear Sir: — You have asked my opinion as to the extent of the author-
ity of officers of the Division of Fisheries and Game to enforce the game
laws on land of the Commonwealth in the Quabbin Reservoir area, in
view of the provisions of G. L. (Ter. Ed.) c. 131, §§ 4, 18 and 89, as
amended, and of St. 1941, c. 599, § 5A.
All lands and waters acquired for the purposes of the Quabbin Reser-
voir and the water supply needs of the Metropolitan Water District in
connection therewith are maintained and operated and under the control
of the Metropolitan District Commission (St. 1926, c. 375, § 1, St. 1927,
c. 321, § 2) and constitute "land or waters of said commission," as the
quoted words are used in St. 1941, c. 599, § 5A, and said Commission has
"the control and charge" of such land within the meaning of G. L. (Ter.
Ed.) c. 131, § 89, as amended by said St. 1941, c. 599.
The various provisions of said G. L. (Ter. Ed.) c. 131, as amended, and
of the amending act, said St. 1941, c. 599, are to be read together so as to
form as far as possible an harm.onious whole, in accordance with the estab-
lished rule of statutorv construction {Piatt v. Conimonwealth, 256 Mass.
539, 542; Moloney v. Selectmen of Milford, 253 Mass. 400, 402).
Section 18 of said chapter 131, as amended, in its pertinent portion,
reads :
"The director (of the Division of Fisheries and Game), conservation
officers, deputies, wardens and members of the state police shall enforce
the laws relating to fish, birds and mammals."
Section 4 of said chapter 131, to which you refer, empowers such officers
to enter upon private lands in the performance of their duties. This sec-
tion has no direct apphcability to public lands and no specific provision
in the statute was necessary to authorize public officers to enter upon
state lands; such authority being implicit in the grant of power to them
in said section 18 to enforce the game laws. Nor is such authority cur-
tailed by the terms of said section 5 A in the amending act of 1941, chapter
599, which, with reference to the amended provisions of said chapter 131
therein contained as well as to certain other provisions, provides as
follows :
P.D. 12. 60
"Nothing in this act shall be construed as authorizing any person,
without a permit from the metropolitan district commission, to enter or
go upon the land of the water division of said commission ..."
"Person" by itself is an equivocal word. It has no fi.xed and rigid
signification, but has different meanings dependent upon contemporary
conditions, the connection in which it is used, and the result to be accom-
plished. See Commonwealth v. Welosky, 276 Mass. 398, 404, 406.
The word "person" in the quoted phrase is not to be construed as em-
bracing public officers charged with the enforcement of the laws of the
Commonwealth as are those officers of the Department of Conservation
named in said section 18 of chapter 131 whose power of enforcement is
further implcunented, though not enlarged, by section 6A of G. L. (Ter. Ed. j
c. 21, inserted by St. 1941, c. 599, § 3, providing:
"There shall be in the division a bureau of law enforcement, under the
charge of a chief conservation officer. All conservation officers, deputy-
conservation officers and fish and game wardens of the division shall be
assigned to duty in said bureau. The director shall, subject to the provi-
sions of section three, enforce chapter one hundred and thirty-one and all
other provisions of law relative to inland fisheries, birds and mammals and
in the enforcement thereof may act through said bureau. The director
shall, subject to the provisions of section three, have general supervision
of all such enforcement officers."
The provisions of said section 5 A of chapter 599, accordingly, do not
bar the said officers of the Department of Conservation from entering
upon the said lands under the control of the Metropolitan District* Com-
mission for the purpose of performing their duties to enforce the game laws.
Section 89 of said chapter 131, in its material part 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,
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 ma}^, 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-bearing
mammals mentioned in section sixty-eight, or fo.xes, 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, comm.ons or lands
owned or leased or held for public use shall enforce this section."
Said section 18, already referred to, empowers- and directs designated
officers of the Division of Fisheries and Game to "enforce the laws relating
to fish, birds and mammals." Said section 18 stems directly, through
various re-enactments of the game laws, from R. L., c. 91, § 4, which author-
ized the then Commissioners on Fisheries and Game and their deputies to
arrest any person whom they found violating any of the game laws.
Said section 89 stems directly, in like mannin-, from St. 1909, c. 362, § 1,
which in its provisions material to the instant matter is similar to section
89 and empowers and requires public officers in charge of reservations
and lands held for public use, as in section 89, "to enforce" the provisions
70 P.D. 12.
of said chapter 362, which provisions were, as I have pointed out, similar
to those now appearing in section 89.
In 1920 Attorney General Allen, in an opinion to the Department of
Conservation, with which I concur (V Op. Atty. Gen. 628), held that
while St. 1909, c. 362, placed upon those in charge of public lands the duty
of preventing any killing of game within the boundaries of such lands,
whether such killing was or was not done in violation of the game laws, the
duty of enforcing the general game laws on such lands still rested upon
the officers of the Division of Fisheries and Game.
The fact that R. L., c. 91, § 4, and St. 1909, c. 362, have been reenacted
by amendment of the game laws from time to time and their provisions con-
solidated in the reenactment of G. L. (Ter. Ed.) c. 131, in 1941, does not
show an intent upon the part of the Legislature to alter their meaning.
It is rather to be presumed that the Legislature intended to employ them
with the meaning which they originally had. Great Barrington v. Gibbons,
199 Mass. 527, 529. Maiii v. County of Plymouth, 223 Mass. 66, 69.
Commonwealth v. Bralley, 3 Gray 456, 457.
Accordingly, I advise you that the officers of the Division of Fisheries
and Game, referred to in G. L. (Ter. Ed.) c. 131, § 18, as amended, have
the power and the duty of enforcing the game laws on the public lands, in-
cluding those of the Quabbin Reservoir under the control of the Metro-
politan District Commission, and have the right to enter upon such lands
when necessary for the purpose of such enforcement.
Very truly yours,
Clarence A. Barnes, Attorney General.
Constitutional Law — Incompatibility of Offices of Representative and
Member of Governor's Council.
April 30, 1945.
Hon. Frederick B. Willis, Speaker of the House of Representatives.
Dear Sir: — I am in receipt from you of the following communication:
"Will you please advise the members of the House of Representatives
if Carl A. Sheridan who was elected yesterday as Councillor in the 3rd
Councillor District by the House of Representatives and the Senate may
continue to serve as a Representative in the General Court in addition to
discharging his duties as a Councillor, provided he accepts only one salary
— that of Councillor."
I advise you that in my opinion the acceptance by the Representative,
to whom you refer, of the office of member of the Governor's Council and
his qualification as such a Councillor will, as a matter of law, act as a
resignation of his seat in the House of Representatives.
The Constitution of the Commonwealth, chapter II, section III,
provides :
"Article I. There Jshall be a council for advising the governor in the
executive part of the government, ..."
Such council is beyond all doubt a part of the executive department of
the government of this Commonwealth, and as such the exercise of its
P.D. 12. 71
powers is restricted by Article XXX of Part the First of the Constitution,
which reads:
"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."
It was said bj^ one of my predecessors in office (I Op. Atty. Gen. 233)
that Article 30 of the Declaration of Rights has no application to an indi-
vidual member of the Legislature; that "the limitations of the individual
members of the several departments are carefully guarded by other por-
visions in the Constitution, to wit, c. 6, art. 2, and Amendments, art. 8.
The specific prohibitions contained in the articles quoted would be plainly
unnecessary if art. 30 of the Declaration of Rights was intended to apply
to individuals rather than to departments."
The opinion was to the effect that a senator might lawfully hold the office
of a member of the then Board of Education, which was assumed to be
an office in the executive branch of the government, and was not stated to
be of such a nature by rea^n of its duties as to make it incompatible with
the office of a senator. • '
With this opinion I concur; but it does not follow that because the Con-
stitution has not specifically prohibited the holding of two particular offices
by one incumbent, a single incumbent may occupy both, if the offices are
of such a nature as to be incompatible.
The Constitution has in said chapter VI, article II, and Arnendments,
article VHI, set forth in detail specific provisions prohibiting incumbents
of various offices of the Commonwealth from holding other designated
offices. None of these relate to members of the Executive Council, except
as they prohibit a judge of the Supreme Judicial Court or a judge of pro-
bate from accepting a seat in the Council and prohibit a Councillor from
accepting the office of either of such judges.
Nevertheless, I am of the opinion that if the duties of the oflfices of a
Councillor and a member of the House of Representatives, such offices
being in the executive and legislative departments of the government,
respectively, are incompatible, they may not be occupied by the same
incumbent. See Opinion of the Justices, 307 Mass. 613, 620.
The House of Representatives is by constitutional provision the judge
of the qualifications of its own members (Const, c. I, § III, art. V). How-
ever, the acceptance of an office incompatible with one already held by
an officer works a resignation of the prior office. Commonwealth v. Hawkes,
123 Mass. 525, 529, 530.
In my opinion, the duties of the office of a member of the Executive
Council and that of a member of the House of Representatives are of such
a nature as to render the respective offices incompatible.
As has been said by the Supreme Judicial Court, the framers of our
Constitution, warned by experience of the dangers which had arisen "from
the vesting of incompatible powers in the same persons under the royal
government while this state was an English province, have made most
careful provision for separating the three great departments of govern-
ment" (Ca.se of Supervisors of Elections, 114 Mass. 247, 249), and as it has
been the endeavor of the people of Massachusetts since colonial times to
72 P.D. 12.
guard against the vesting of powers and duties of more than one branch
of the government in a single officer, the assertion of a right to hold offices
in more than one of such branches should always be subject to the most
careful scrutiny.
The duties of the governor of the Commonwealth as the chief executive
officer, having the power of veto and the authority to prorogue and adjourn
the Legislature and to call it together again (Const, c. II, § I, art. IV), are
plainly of such a nature as to render his office incompatible with that of
a member of the House of Representatives- even if the Constitution, c. VI,
art. II, had not prohibited him from holding another office.. The duties of
a councillor are those of an adviser of the governor (Const, c. II, § III,
art. I), and the advice and consent of the council, by legislative enactment,
have been made necessary for the performance of a wide variety of execu-
tive duties by the governor. In a remote but very real sense the councillor's
functions are similar to those of the "governor.
The members of the council share in the governor's power to prorogue,
adjourn and recall the Legislature, in that his power in such respect can
only be expressed when implemented by the advice of the council (Const,
c. II, §' I, art. V). The councillors are required to take their oath of office
''in the presence of the two houses of assembly." The representatives are
required to take their oath of office in the presence of five members of the
council (Const, c. VI, art. I). The Legislature divides the Commonwealth
into districts from which the individual councillors are to be chosen.
Vacancies in the council, when the General Court is in session, are filled by
the Legislature (Const. Amend, art. XXV). The salaries of the councillors
are fixed by the Legislature (G. L. (Ter. Ed.) c. 6, § 3).
These duties, some of which are required to be performed by repre-
sentatives and some by councillors, appear to me to be such that they may
not properly be performed by the same person, since the performance of
each of such duties would either affect the person himself in one or the
other of two capacities or might require him to act in different capacities
at one and the same time.
This being so, the two offices in question are, in my opinion, incom-
patible and may not be held simultaneously by one person.
Very truly yours,
Clarence A. Barnes, Attorney General.
Banks — Credit Unions — Acquisition of Shares of One Credit Union by
Another,
May 1, 1945.
Hon. F. Earl AVallace, Commissioner of Banks.
Dear Sir: — In a recent letter you have advised me as follows:
"The Lynn Police Credit Union, a corporation recently chartered under
General Laws, chapter 171, and now qualified and ready to commence
business, was organized and is now requested to assume the share liabilities
and acquire all of the assets of the Lynn (Mass.) Policeman's Federal
Credit Union, a credit union chartered under the Federal Credit L'nion
Act, U. S. C. A. Title 12, Sections 1751-1770. The members of the two
credit unions are or will be substantially the same. It is expected that all
of the assets of the Lynn (Mass.) Policeman's Federal Credit Union will
P.D. 12. 73
meet the statutory requirements governing investments of shares and
deposits of credit unions incorporated in this State."
In relation to the foregoing facts, you have asked my opinion upon the
following question :
"whether or not a credit union incorporated under General Laws, chapter
171, may assume and undertake to pay the share liabilities of a federally
chartered credit union and in the process purchase and acquire all of the
assets of such a credit union."
G. L. (Ter. Ed.) c. 171, § 10, in its apphcable part provides with regard
to the capital stock of a credit union as follows:
"... Shares of capital stock may be subscribed for and paid for in
<uch manner as the by-laws shall provide; provided, that the par value of
the shares shall be five dollars. ..."
Assuming from the statement of facts which you have set forth that
the proposed mode of paying for the shares of a domestic credit union,
which it would appear are to be issut^d to the members of ? federal union,
is authorized by the by-laws of the domestic union and that the assets of
the federal union used as such payment are, as you have stated, such as
meet statutory requirements and that other requirements of said chapter
171 afTecting the domestic union are not violated b)' the a^-quisition of
said assets, I answer your question in the affirmative.
No prohibition of the acquisition of shares and assets of one credit union
by another has been set up by the Legislature. The fact that the shares to
be acquired are those of a federal as distinguished from a domestic union
is immaterial.
Very truly yours,
Clarexce a. Barnes, Attorneij General.
W arehouseman — "Public Warehouseman^^ — License.
May 4, 1945.
To the Executive Council.
Gentlemen: You have asked my opinion upon the following question
of law:
"Whether or not one who is engaged in storing the merchandise of one
customer as security for a loan must seek a license as a Public Warehouse-
man in compliance with G. L. c. 105?"
G. L. (Ter. Ed.) c. 105, § 1, as amended, provides in its first sentence:
"The governor, with the advice and consent of the council, may license"
suitable persons, or corporations established under the laws of, and having
their places of business within, the commonwealth, to be public ware-
housemen. . . ."
I answer your question in the affirmative.
It is true that there is a well-recognizt^l distinction in law betw(H'n a
public warehouseman, who like a common carrier holds himself out as
maintaining a public service for all who may resort to him, and a private
warehouseman, who furnishes storage only to a particular person or per-
74 P.D. 12.
sons. Security Machi7iery Co. v. Hand, 143 Fed. 32, 40. Citizens'' Bank v.
Willing, 109 Wash. 464.
The words "pubUc warehouse" and "pubHc warehouseman" may be
given a distinctive meaning by statutory provisions so that such words
will not only embrace the warehouseman who holds himself out as doing
business with the general public, but also inckide any person who main-
tains a warehouse for hire, irrespective of whether he does business with a
particular person or class of persons or with the general public. Gulf
Compress Co. v. Harris, 158 Ala. 343, 350. Gray v. Central Warehouse
Co., 181 N. C. 166. State Public Utilities Commission v. Monarch Refrig-
erating Co., 267 111. 528. Long well Transfer v. Elliott, 267 S. W. 346.
Said chapter 105, as now contained in the Tercentenary Edition of the
General Laws, is composed of two parts which, in the main, spring from
separate and distinct sources.
Sections 1 to 6 of said chapter were first enacted by St. 1860, c. 206,
and were codified in substantially their original form in Revised Laws,
chapter 09. The rest of the sections of said chapter 105, with a few minor
exceptions, but in substantially their present form, derive from an en-
tirely separate source, St. 1907, c. 582. This latter portion of chapter 105
was part of a uniform law regarding warehouse receipts, and deals, in the
main, with such receipts and the liabilities of warehousemen.
St. 1907, c. 582, defined "warehouseman," for the purposes of that act,
as "a person lawfully engaged in the business of storing goods for profit"
so that it would seem that the word "warehouseman," as used in the lat-
ter part of chapter 105, would have a broader significance than as used in
its first part, especially in section 1, where it is made to refer to public
warehousemen. This would be so if chapter 105, as it now stands, was
only a combination of the terms of said R. L. c. 69, and said St. 1907,
c. 582, but in 1915, the Legislature, by chapter 98 of that year, by amend-
ment added to the provisions of R. L. c. 69, definitions of the words "pub-
lic warehouse" and "public warehouseman" which brought them in har-
mony with the definition of "warehouseman" contained in said St. 1907,
c. 582, and by their terms enlarged the meaning of "public warehouse"
and "public warehouseman" as employed in reference to said chapter 69,
section 1, whose phraseology is now embodied in G. L. (Ter. Ed.) c. 105,
§ 1, as amended. Said R. L. c. 69, was amended by Gen. St. 1915, c. 98,
as follows :
"The words 'public warehouse', as used in this chapter, shall mean any
building, or part of a building, kept and maintained for the storage of
goods, wares and merchandise as a business; and the words 'public ware-
houseman' shall mean any person, corporation, partnership, association
or trustees keeping and maintaining a pubHc warehouse as defined in this
section."
When the compilers of the General Laws of 1921 set forth said chapter
105 they dropped the particular definition of "warehouseman" which
was set forth previously in said St. 1907, c. 582, and in place thereof in-
serted in section 7 of chapter 105 the definitions of "pubHc warehouse,"
"warehouseman" or "public warehouseman" which had been added to
chapter 69 of the Revised Laws, and which were of the same general effect
as the particular definition contained in said St. 1907, c. 582. These
definitions, by the phraseology of said chapter 105, section 7: "The follow-
ing words as used in this chapter, unless the context otherwise requires,
P.D. 12. 75
shall have the following meanings:" now apply to and govern the meaning
of "public warehousemen" and "warehouse" as contained in section 1
of chapter 105; there being nothing in the context of the chapter which
requires otherwise.
This being so, it follows that a person or corporation which maintains a
building for the storage of goods, wares and merchandise as a business,
even if it is so maintained for the purpose of storing the merchandise of one
particular customer only, is a "public warehouseman" and is required to
be licensed by virtue of the provision in the first sentence of said section 1
of chapter 105, since by the definition of the words "public warehouse-
man" such person is brought within the requirements of said section 1.
Very truly .yours,
Clarence A. Barnes, Attorney General.
Settlement — Member of United States Military Forces — Executive Order
No. 32 — G. L. {Ter. Ed.) c. 116, ^ 1.
.Mav 9, 1945.
Hon. Arthur G. Rotch, Commissioner of Piiblic Welfare.
Dear Sir : — You have informed me of the following facts in connec-
tion with questions relative to the settlement of one James Joseph Kelley:
"James Joseph Kelley was born in Charlestown May 24, 1900; to
Maiden when young and enlisted World War I from Maiden and on active
duty April 9, 1917, until his honorable discharge March 14, 1920. Two
years after his discharge he removed to Boston and resided at 7 Polk
Street, Charlestown until his marriage November 29, 1932; then Medford,
Charlestown and Somerville with no five years' residence anywhere. He
enlisted in World War II from Somerville on October 19, 1942; called to
active duty January 25, 1943, and received an undesirable discharge on
October 11, 1943, due to his misconduct.
Somerville notified Boston on February 19, 1944, and Boston denied on
March 9, 1944, claiming that although this man may have acquired a
Boston settlement by his residence there from 1922 to 1932, his enlistment
in World War II gave him a settlement in Somerville per Executive Order
No. 32, thus wiping out his Boston settlement."
It appears from the facts which you have set forth that prior to October
19, 1942, the said Kelley had a settlement in Boston, which had not been
defeated.
Executive Order No. 32, issued by the Governor on August 20, 1942,
to which you refer, provided that;
"Any person who serves as a member of the military or naval forces of
the United States at any time during the present war . . . shall be deemed
to have a settlement in the place where he actually resides or resided at
the time of his induction, enlistment or entry into such service."
G. L. (Ter. Ed.) c. 116, § 1, cl. fifth, by force of St. 1943, c. 455, § 13,
amending section 1 in a certain immaterial detail and reenacting it, effec-
tive September 8, 1943, contained a provision to a like effect. If the quoted
provision had been set forth in said Executive Order or had been set forth
in said chapter 116, section 1, as amended, without any qualifying provi-
sion, the settlement gained by said Kelley in Somerville by virtue of his
76 P.D. 12.
enlistment in the military or naval service of the United States in World
War 11 while actually residing in Somerville, under the terms of the said
Executive Order or of said chapter 116, section 1, as amended, would have
defeated his prior settlement in Boston.
However, both the said Executive Order and said chapter 116, section 1,
as amended, contain provisions qualifying the quoted provision and the
similar provision, already referred to, in said chapter 116, section 1, respec-
tively, which, since the discharge of said Kelley from the military or naval
service of the United States, was not, according to the facts as you have
stated them, "an honorable discharge or an honorable release" or "by
reason of disability," prevent the acquisition of a settlement in Somerville
by Kelley.
The qualifying provisions of said Executive Order 32 read:
"The provisions of this order shall not apply to any person who has
been proved guilty of wilful desertion or who left the service otherwise
than by reason of disability, an honorable discharge or an honorable
release."
The qualifying provision of said chapter 116, section 1, cl. fifth, as
amended, reads:
"But these provisions shall not apply ... to any person . . . who
left the service otherwise than by reason of disability or an honorable
discharge."
Accordingly, I am of the opinion that, upon the facts which you have
stated, the said Kelley did not acquire a settlement in Somerville and that,
consequently, the settlement which he had gained in Boston was not
defeated so that his settlement is in Boston, and he cannot be said to be a
person without a settlement as you say has been suggested.
In your letter you asked me three specific questions relative to said
Kelley 's settlement, which are as follows:
"1. When did the man gain a settlement in Somerville?
2. When did his settlement in Somerville end?
3. What settlement, if any, does he hold at present?"
In view of the opinion which I have already expressed, the answer to
the first question is never. Since such is the answer to the first question,
no answer is required to the second question. The answer to the third
question is, a settlement in Boston.
Very truly yours,
Clarence A. Barnes, Attorney General.
Metropolitan District Commission — Lack of Authority to Transfer Land
to a State Department.
May 10, 1945.
Metropolitan District Commission.
Dear Sirs: — In a recent letter you have asked my opinion "as to the
rights of the Commission to release about ten acres of land acquired for
parkway purposes to the State Department of Public Health for the
construction of a chronic disease hospital."
I answer your question to the effect that your Commission has no
"rights" or authority so to do.
P.D. 12. 77
It is a general principle of law that land appropriated to one public use
cannot be diverted to another inconsistent public use without plain and
explicit authorization by the Legislature. No legislation exists at the
present time, giving your Commission authority, or "rights", "to release"
land foi- the purjxjse referred to in your letter. The provisions of G. L.
(Ter. Ed.) c. 92, $ 84, which authorize your Commission to sell land ac-
quired under sections 33 to 35, do not give your Commission authority
in this respect.
Very truly yours,
Clarence A. Barnes, Attorney General.
Contracts for Posttvar Projects — St. 1943, c. 370, § 10.
May 10, 1945.
Hon. Francis X. Lang, Comptroller.
Dear Sir: — You have asked my opinion as to whether you may
certify for payment the amounts shown by various vouchers for archi-
tectural and engineering services rendered under contracts for the prepara-
tion of "postwar projects."
You advise me that funds ample to take care of these payments have
been made available by tran.sfer "from the War Emergency Fund for
the purpose of Emergency Public Works Commission plans — Postwar
Projects." You also inform me that payments for similar services so
rendered have been made in the past from such funds.
The preparation of posttvar projects, including architectural and engineer-
ing services incident thereto, are "emergency expenditures" of a type
"which may be necessary to meet any emergency which may arise by
reason of the exigencies of the existing state of war" within the sweep of
the quoted words as they have been employed by the Legislature in the
authorization of the expenditures contained in St. 1943, c. 370,- § 10, to
which you refer.
The emergency for which postwar project expenditure is to provide is
obviously one which "may arise" by reason of the exigency of the existing
state of war. It is not necessary that an emergency growing out of the
war should be actually upon us before provision may be made under said
section 10 to meet it. It is a matter of common knowledge that unemploy-
ment is an inevitable accompaniment of the demobilization of large num-
bers of servicemen. At the close of a war such an emergency will in part
be met by opportunities for employment on public works but unless possible
public works are projected beforehand, such opportunities will not exist
and the emergency will not be met.
Consequently, I advise you that expenditures from the funds, to which
you refer, to meet correct charges for architectural and engineering services
connected with the preparation of bid plans and specifications for postwar
projects under properly drawn contracts would be valid.
Very truly yours,
Clarence A. Barnes, Attorney General.
78 P.D. 12.
Public Works — Entry on Private Property to Make Survey for Future
Highway Projects.
May 17, 1945.
Hon. Herman A. MacDonald, Commissioner of Public Works.
Dear Sir: — You have requested my opinion as to the right of your
department to enter upon private property to make surveys for future
highway projects without permission from the owners, and where in one
particular case the owner has refused such permission. You state that in
this particular case the taking will be made under G. L. (Ter. Ed.) c. 81,
§ 7. This section provides:
"If it is necessary to acquire land for the purposes of a state highway
outside the limits of an existing public way, the department (meaning the
Department of Public Works) may take the same by eminent domain in
behalf of the commonwealth under chapter seventy-nine. ..."
We find in the case of Willar v. Commonwealth, 297 Mass. 527, 528, some
significant language by the court:
"We think that when the Legislature gave to the department power to
take land by eminent domain 'under chapter seventy- nine ' it intended
to give to the department full and complete power to carry the necessary
proceedings through to a final termination, ..."
While this reference is to the statutory procedure, it is fair to construe
the language of this case and those referred to hereinafter as giving the
department full power of initiating the taking by way of preliminary
surveys. It is true that this act does not expressly provide that the mem-
bers of the department and their agents shall not be liable for trespass, as
has been provided in other similar statutes of the Commonwealth in
reference to forest wardens and militia, but such surveys and incidents
thereto are justified by the authority given to the department by the act.
A statute of this character grants power incidental to the carrying out
of its provisions. VIII Op. Atty. Gen. (July 19, 1927) 344, 345. Winslow
V. Gifford, 6 Gush. 327. When an act of the Legislature imposes duties
upon a public officer, it confers upon him by implication whatever authority
is necessary for the performance of such duties. I Op. Atty. Gen. (Dec.
19, 1896) 403, 404.
The department and its agents are public servants authorized by statute
to acquire land when necessary for the purposes of a state highway, and in
the discharge of these duties it may become necessary to enter temporarily
upon private lands to make surveys. If this entry is reasonable, intended
in good faith, temporary in its nature, and attended by no unnecessary
damage, it does not constitute actionable trespass. Winslow v. Gifford,
6 Gush. 327. Cavanagh v. Boston, 139 Mass. 426, 435. Brigham v. Edwards,
7 Gray 359, 363.
In Winsloiv v. Gifford the court held that there was no trespass where
under authority of a statute the commissioners entered upon the lands of
the plaintiff and made certain surveys, with the view of ascertaining the
boundaries of a tract of land devoted to public purposes, where no com-
pensation was provided for such apparent trespass. This case has been
followed and approved several times in Massachusetts and has been cited
by the United States Supreme Gourt in Montana Co. v. St. Louis Mining
and Milling Co., 152 U. S. 160, 167.
P.D. 12. 79
From other cases it seems to be well settled that general rights in prop-
erty have their limitations, in that entry upon such private property may
be made by public officers for the protection of public welfare, and that
such entry is not an exercise of the right of eminent domain nor permanent
appropriation of this property to the exclusive use of another, the entry
being made for the public welfare and subject to the limitations in Winslow
V. Gi'iford.
It seems, therefore, clear that such survey may be made if the taking of
the land is necessary for highwa}^ purposes, if the entry is reasonably neces-
sary, intended in good faith, a temporary one, and accompanied by no
unnecessary damage.
Very truly yours,
Clarence A. Barnes, Attorney General.
State College — Tuition — N on-Resident Students — Trustees.
June 14, 1945.
]\Ir. Robert D. Hawley, Treasurer, Massachusetts State College.
Dear Sir: — You have asked my opinion as to the legality of the
tuition charges of $110 per semester made by the Massachusetts State
College by vote of its trustees for students who are not residents of Mas-
sachusetts.
In my opinion these charges are legal and valid. The charges were put
into effect by the following vote of the Board of Trustees on January 19,
1933:
"Voted: That tuition for all students, residents of Massachusetts, be
increased to $100 per year and the tuition for students who are not resi-
dents of Massachusetts be increased to $220 per year and that these tuition
charges include present student fees: laboratory fees, $12; health fee,
$4.50; matriculation fee, $5, which are now separately charged."
The trustees of the college have been vested by the Legislature with the
powers of management, administration and government of the college,
and the authority to determine and regulate instruction therein. G. L.
(Ter. Ed.) c. 75, §§ 9-11.
It has been held by one of my predecessors in office, with whose opinion
I agree, that the trustees may establish such rates of tuition as they may
deem reasonably necessary. II Op. Atty. Gen. (1899) 84.
In the recent case of Lynch v. Conumssioner of Education, 317 Mass. 73,
the Supreme Judicial Court has held that when power of general manage-
ment of a college is conferred by the Legislature on a public authority, it
carries with it a grant of power to such an authority to establish reasonable
tuition fees.
The Board of Trustees of the Massachusetts State College is such a
public authority, serving in the Department of Education, its members
being persons holding certain designated offices in the service of the Com-
monwealth, acting ex officio as trustees, and persons appointed as trustees
by the Governor.
Very truly yours,
Clarence A. Barnes, Attorney General.
80 P.D. 12.
Towns — Members of Fire Department — Payments for Death —
G. L. {Ter. Ed.) c. 48, § 83.
June 21, 1945.
Hon. Francis X. Lang, Comptroller.
Dear Sir: — You have informed that the Town of Hingham has sub-
mitted a claim under G. L. (Ter. Ed.) c. 48, § 83, for the payment of .|2,500
to the use of persons mentioned in said § 83 as a result of the death of a
fireman of said town, who, I assume, had served for more than a year
preceding the first of May prior to his death.
You have advised me of certain material facts and, in your first question,
have asked my opinion, based upon them, as to whether as a matter of
law the Commonwealth is liable for such payment under said § 83.
I answer this question in the negative.
G. L. (Ter. Ed.) c. 48, § 83, in its pertinent parts provides that if a
fireman dies as a result of injuries received in the performance of his duties,
upon certification of the relevant facts to the Comptroller, the latter shall
certify for payment to the executor or administrator of the deceased $2,500
for the use of certain persons connected with the deceased, in a manner
designated in the section. It is, however, specifically provided in the last
sentence of the section as follows :
"No payments shall be made under this section on account of the death
of a member of the fire department of a city or town in respect to which
compensation is payable under section eighty-nine of chapter thirty-two."
Section 89 of chapter 32 provides in its applicable portions that if a
"member" of a "fire force" dies from injuries received in the performance
of his duties, the town which employed him shall pay certain specified an-
nuities to designated persons connected with the deceased, and that the
total amount of all annuities shall not, except in instances not here mate-
rial, exceed the annual rate of compensation received by such person at
his death. Provision is also specifically made for payment by the town
of annuities to call and reserve firemen.
It appears from the facts of which you have advised me that the de-
ceased, though a "volunteer" fireman, was a member of the regular "fire
force" or fire department of Hingham.
The nature of the employment and duties of a "volunteer" fireman as
they appear from the facts of which you have informed me in connection
with the Hingham fire department and as they exist in relation to some
other fire departments of rather antiquated kinds in various towns, differ-
entiate the status of the "volunteer" firemen from that of a "call fireman"
or of a reserve fireman.
The regular fire force or fire department of Hingham appears from said
facts to be made up of two types of firemen, one of which is called "perma-
nent" and receives a substantial annual compensation; the other is called
"volunteer" and those included therein are governed by the terms of
G. L. (Ter. Ed.) c. 48, § 38, which provide that:
"Enginemen or members of the fire department who have served for
one year preceding May first in any year, shall receive from the town a
sum equal to the poll taxes paid by or for them and such further com-
pensation as the town determines."
P.D. 12. 81
This "further compensation" consists in the Town of Hinghani of pay
at a per-hour rate for all time spent at wood fires and for work at a building
fire after two hours of attendance thereat.
That the payment by the town to a fireman of a sum equal to the
amount paid for or by him by way of poll tax is "compensation" for his
services appears to be settled by the language employed by the Supreme
Judicial Court in Greenough v. Wakefield, 127 Mass. 275, 277, where it
considered the phraseology of Gen. St. c. 24, § 18, from which said G. L.
(Ter. Ed.) c. 48, § 38, is derived. See also II Op. Atty. Gen. 253.
It follows, then, that the deceased, as a member of the fire department
of Hingham, receiving such compensation annually from the town, was one
on account of whose death compensation is payable to persons designated
by the town in said section 89.
It is true that since the amount of the deceased's annual compensation
as a fireman, being based upon the poll tax paid, is very small, and as it
may not be exceeded by the annuities payable to the beneficiaries, such
annuities would appear to be totally inadequate. The remedy for such a
situation lies with the Legislature. Your second question is hypothetical
in character and in relation to the subject matter of your letter concerning
the death of said fireman, in view of my reply to your first question, requires
no answer.
Very truly yours,
Clarence A. Barnes, Attorney General.
82 P.D, 12.
INDEX TO OPINIONS
PAGE
Architects; registration; "residence"; "prior"; St. 1941, c. 696, § 3 . . 46
Banks ; credit unions ; acquisition of shares of one credit union by another . 72
Blind, Division of the; vocational rehabihtation ; federal funds ... 62
Civil service; authority of Director; seniority of employees ... 15
Custodian of Contraband in Department of Public Safety; failure to
classify ........... 24
Custodian of municipal building; "officer"; "employee" . . ' 54
Fire Department of West Springfield; call firemen; classified service . 32
Preference of veterans in promotional examinations . . . .53
Promotions; G. L. (Ter. Ed.) c. 31, § 15 56
Promotions in clerical service of municipal fire department; G. L. (Ter. Ed.)
c. 31, § 15 or § 20 35
Supervising boiler inspector in Department of Public Safety not classified . 17
Conservation; shellfish; permits; municipal leases; non-residents; Director
of Division of Marine Fisheries ....... 43
Constitutional law; alcoholic beverages; sales; aliens; treaty with Great
Britain ........... 59
Incompatibilit}^ of offices of representative and member of Governor's
Council ........... 70'
Rules and regulations of state departments; encroachment of Legislature
upon authority of the e.xecutive branch of the government . . 63
Contracts for postAvar projects; St. 1943, c. 370, § 10 . . . .77
Emergency Public Works Commission; postwar projects; Port of Boston . 36
Fisheries and Game, Division of; authority of officers to enforce game laws
on public lands, including area of Quabbin Reservoir ... 68
Food ; sale of canned lobster meat ; label ...... 57
Insurance; classification of fire risks by domestic fire insurance companies;
contracts made outside the Commonwealth ..... 49
Domestic stock liability insurance company; increase of capital; Com-
missioner's approval . • . . . . .64
Fraternal benefit society ; annual meeting; officers holding over; authority
of Commissioner .......... 66
Fraternal benefit society; by-laws; delegation of authority; election of
officers ........... 57
Group annuity contracts; approval; options; particular provisions . . 37
Group annuity policy: dividends; terms of insurance contract . . 22
Mental Health, Department of; transfer of surplus supplies from one state
hospital to another unauthorized . . . . .10
Metropolitan District Commission; lack of authority to transfer land to a
state department ......... 76
Transfer of supervision of Mystic Lakes; lack of authority . . .31
Military leave of absence ; resignation; United States Public Health service . 61
Milk Control Board ; orders of board ; violations; licenses . . . .13^
Public announcement of prices to be paid by individual milk dealers . .19*
Municipalities; public assistance; amounts payable for hospitalization . 26
Old age assistance ; husband and wife owning real estate in common ; security
for reimbursement of mimicipality ...... 30
Husband and wife; tenancies ........ 47
Waiver of rights; contributions by children ...... 12
Public Health, Department of; transportation of shellfish; certificates of
foreign board . . . . . . . . . . 22 ^
Public officers; salaries while in military service ..... 29«|
P.J>^12. 83
PAGE
Public Safety; inspection of places of assembly; regulations; G. L. (Ter.
Ed.) c. 143, § 3B . 33
Public works, entry on private property to make survey for future highway
projects . . . . . . . .78
Settlement; member of United States military forces; Executive Order No.
32; G. L. (Ter. Ed.) c. 116, § 1 75
State college; tuition; non-resident students; trustees .... 79
Towns; members of fire department; payment for death; G. L. (Ter. Ed.)
c. 48, § S3 80
^^^alden Pond State Reservation; powers of commission; lack of authority
to restrict ........... 10
Warehouseman; "public warehouseman"'; license ..... 73
War Emergency Fund ; transfer of funds; authority of governor . . .17
Workmen's compensation; Director of Division of the Bhnd; "Officer";
"Employee" .......... 51
Self-Insurance; reinsurance; catastrophe; ser\ace company ... 41
Self -insurer; bonds .......... 27
1
TVNews
OpenLibrary