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Public Document No. 12 



Ct)e Commontoealtf) of gia$0act)U0ettjS 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1946 




Publication of this Document Approved by the Commiaaion on Adminiatration and Finance 
00. 7-'47. 21567 



Public Document 



No. 12 



Cl)e Commonuiealti) of €i0as$act)usetts 



T" 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1946 



^. 




Publication of this Document Approved by the Commission on Administration and Finance. 
900. 7-'47. 21567. 



1947. 



0FF1CIA1.V. 



^ OCT 15 ^^4"^ 



>\41r 

A 



Ci)e Commontuetiltf) of ^a00aft)U0ett0 



Department of the Attouney General, 
Boston, December 30, 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, 1946. 

Very respectfully, 

CLARENCE A. BARNES, 

Attorney General. 



Cf)c CommonUiealt!) of ^a^sacftusettsf 



DEPARTMENT OF THE ATTORNEY GENERAL 
State House 



Attorney General 
CLARENCE A. BARNES 



First Assista7it Attorney Gencrnl 
George B. Rowell 



Assistants 

Roger Clapp Norris AI. Suprenant 

Nathan B. Bidwell Sumner W. Elton 

William S. Kinney Wm. Gardner Perrin 

Charles Shulman William H. Sullivan 

George P. Drury ' Ernest Brenner 

]\IiCHAEL A. Fredo Thomas F. McLaughlin 

David J. Coddaire Conde J. Brodbine 

Alfred E. LoPresti Beatrice H. Mullaney 

Herbert D. Robinson Richard J. Cotter; Jr. 

Assistant Attorneys General assigned to Veterans' Division 
Nicholas DeLeo ^ Joel L. Miller 

Assistant Attorneys General assigned to Division of Employment Secnrity 
Saul Gurvitz Joseph S. Mitchell 



Chief Clerk to the Attorney General 
Harold J. Welcfi 

List Clerk to the Attorney Geyieral 
James J. Kelleher 



Director of Division of Collections 
W. Forbes Robertson 



1 Specially assigne.l to Xe\v '^ork, Xew Ifjiven and Hartford Railroad and Boston 
Flpvated Railway cases. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1945, to June 30, 1946 



Attorney General's salary ........ 

Assistants and others, salaries ........ 

E.xpenses ........... 

Settlement of damages bj^ state-owned cars (G. L. (Ter. Ed.) c. 12, § 3B) 

Settlement of certain claims (G. L. (Ter. Ed.) c. 12, § 3A) . 

Veterans' legal assistance ........ 

New York, Xew Haven, and Hartford Railroad .... 



E.rpenrHtures. 

For salary of the AttomeA^ General ....... 

For salaries of assistants and others : 

Actual expenditures $121,629 11 

Amount reserved ...... 13,910 89 

For office expenses: 

Actual expenditures ..... $9,873 46 

Amount reserved ...... 1,126 54 

For settlement of damages by state-owned cars (G. L. 

(Ter. Ed.) c. 12, § 3B) 

For settlement of certain claims (G. L.(Ter. Ed.) c. 12, 

§ 3A) 

For veterans' legal assistance: 

Actual expenditures ..... $11,168.99 

Amount reserved . . . . . . 319 00 



Total expend ituies ......... 

Financial statement verified (under requirements of c. 7, § 19, G. L.). 

By EDWIN J. TURNER, 

For the Comptroller. 



$ 8,420 00 

135,540 00 

12,000 00 

8,000 00 

4,000 00 

20,000 00 

553 46 

$188,513 46 
$ 8,420 00 



135,540 00 

11,000 00 
7,471 53 
3,506 66 

11,487 99 
$177,426 18 



Approved for publishing. 

FRED A. MONCEWICZ, 

Coviptroller. 



Dece.mukr 23, 1946. 



Cte Commontoealtf) of e!^as$afl)U0ett0 



Department of the Attorney General, 
Boston, December 30, 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, 1946, totaling 10,976, are tabulated as follows: 



Corporate franchise tax cases . 

Extradition and interstate rendition 

Land Court petitions 

Land damage cases arising from the taking of land: 
Department of Pubhc Works 
MetropoHtan District Commission 



2 

155 

93 

24 
3 



Metropohtan District Water Supply Commission .... 12 
Miscellaneous cases, including suits to require the filing of retuiTis by cor- 
porations and individuals and the collection of money due the Com- 
monwealth 2,002 

Petitions for instructions under inheritance tax laws ..... 6 

Estates involving applications of funds given to public charities . . . 662 

Settlement cases for support of persons in state hospitals .... 88 
Pardons : 

Investigations and recommendations in accordance with G. L. (Ter. FA.) 

c. 127, § 152, as amended 116 

Workmen's compensation cases, first reports ...... 1,932 

Cases in behalf of Division of Employment Security ..... 1,081 

Cases in behalf of \'eterans' Division ....... 4,800 

To serve all the people of the Commonwealth as their attorney is to 
my mind the privilege and the duty of the Attorney General. 

In serving the people as their attorney, I have, since assuming office, 
conferred with the District Attorneys and their assistants, formally on 
two occasions and informally at many other times, to the end that the 
enforcement of law throughout the Commonwealth might be conducted 
harmoniously, with fairness to all, and so that justice might be even- 
handed. 

The matters of sex crimes and juvenile delinquency have been formally 
discussed by the District Attorneys and their assistants with me, and 
meetings have been held with police authorities. At the annual meeting 
of the National Association of Attorneys General, these matters were 
discussed at length, and I have secured information from other States 



« P.D. 12. 

as to their methods of handling these problems. At one of the meetings 
of the District Attorneys and their assistants, the following resolution 
was passed: 

Resoh'c<l, That the District Attorneys of the Commonwealth request the Legislature 
to authorize a further study of the cause and prevention of serious sex crimes, as well 
as the advisability ot imposing substantial mandatory sentences upon conviction and a 
more stringent supervision of offenders upon their release; it is further 

BeKnljed, That pending results of a legislative investigation, all law enforcement 
officers will continue full co-operation with the Attorney General and the District 
Attorneys in the enforcement of existing laws and prosecution of sex law offenders. 

I recommend that legislation be enacted by this Legislature to carry 
out the suggestions contained in the first paragraph of this resolve, as I 
believe that within the Commonwealth of Massachusetts every effort 
must be made to secure an adequate solution of these problems. 

I believe that these meetings with the District Attorneys, their staffs, 
and law enforcement officers have been of substantial benefit to the citizens 
of the Commonwealth. I find that in the State of California, and in other 
States, specific authority is given to the Attorney General to call such 
meetings. I therefore recommend the enactment of the following law: 

The attorney general may, from time to time, and as often as occasion may require, 
call into conference the district attorneys and sheriffs of the several counties and the 
chiefs of police of the several cities and to\\Tis of this commonwealth, or such of them 
as he may deem advisaisle, for the purpose of discussing the duties of their respective 
offices with the view of uniform and adequate enforcement of the laws of this common- 
wealth. 

During my term of office, with the co-operation of the Department of 
Public Health, substantial strides have been made, through enforcement 
of the orders of the Department of Public Health in the courts, toward 
stopping the pollution of our streams with sewage, waste and putrescible 
matter. I am convinced that it is important that this work be continued 
and expanded in this Department. I recommend that for the coming 
year two additional Assistant Attorneys General be provided for in the 
budget to carry out this important work. 

When I assumed office, there were certain claims pending against 
various milk dealers in the Commonwealth who questioned their liability 
to pa^- Milk Control Board assessments which were due the Common- 
wealth previous to 1942, the effective date of the present milk control 
law. In addition to this, a substantial group of milk dealers had in the 
past refused to pay assessments due following the effective date of the 
act concerning this matter passed in 1941 by the Legislature. Suits were 
brought under my direction in connection with this refusal to pay. As a 
result of these suits, substantially twenty thousand dollars has been 
collected and the milk companies are paying the assessments. 

As Attorney General I have continuously given advice to elected officers, 
department heads and members of the Legislature, either through formal 
opinions or, more frequently, by informal advice. 1 have sought at all 
times, with the help of able legal assistants, to conduct this Department 
with efhciency and a high standard of administration. 



I'.D. 12. 9 

In accordance with the pledge which I made to the people of this (.'otn- 
mon wealth when I first assumed the office of Attorney General, I immedi- 
ately established a veterans' division which could freely advise and act 
in behalf of the veteran, his widow, orphans and other dependents. Two 
Assistant Attorneys General have devoted their entire time to this divi- 
sion. A complete file of the work of the division is kept containing the 
record of the applicants' problems and notations of the advice given and 
work done. In addition, there have been innumerable personal requests 
for information and advice given by telephone. Many letters have been 
received in which requests were made for information. These have been 
promptly answered. The work of this division is constantly increasing. 
I have caused to be published two reports of the division which set forth 
the types of cases and the work that has been done so ably by this staff. 
I am appending hereto copies of each of these reports. I believe that the 
work of this division should be continued and, if possible, expanded. 

The development of the airport at Boston and the Port of Boston is of 
paramount importance to all the citizens of the Commonwealth. Many 
problems in connection with both have come to this Department. On 
numerous occasions, either in person or through one of my assistants, 
appearances have been made on behalf of the citizens of Massachusetts 
before the Civil Aeronautics Board at Washington, seeking to .secure 
additional rights for Boston Logan International Airport. Similarly, 
many of the problems of the development of the Port of Boston have 
required my attention or that of my assistants. 

The Supreme Court having decided the demurrer in the case brought 
by the Attorney General (my predecessor in office) against the Trustees 
of the Boston Elevated Railway Company and the Boston Elevated 
Railway Company, a substantial portion of the time of four assistants 
and a chief investigator has been occupied in connection with this case. 
I have, with the approval of the Department of Public Utilities, employed 
Price, Waterhouse & Company, a leading firm of auditors, to make a 
complete investigation of the books of the Boston Elevated Railway 
Company and the Trustees. I have also, with like approval, employed 
the firm of Coverdale & Colpitts as engineers in order to secure expert 
advice with respect to matters involving depreciation, rehabilitation and 
betterments of the property of the company. I anticipate that this case 
will be reached for trial during the month of April, 1947, and that the 
length of time consumed in trial will be from three to six months. This 
will require the entire time of four of my assistants and a substantial 
portion of my time, as well as additional funds. 

I have not attempted in this report to set forth in detail many of the 
activities of the Department. Suffice it to say that on many occasions 
throughout my term of office, each commission, board, division and de- 
partment of the Commonwealth has sought legal advice from this Depart- 
ment with respect to various matters which are under its charge. Con- 
tracts have been examined and approved, hearings have been attended 
and conducted on behalf of the various state departments by this Depart- 
ment, and settlements of inheritance taxes, state note issues, bond issues 
and leases have been approved. 



10 P.D. 12. 

There have been many interviews and consultations with city solicitors, 
town counsellors, members of the Legislature and attorneys. 

It is my sincere belief that the Assistant Attorneys General and the 
other members of the Department have carried out their duties with 
dignity, ability and loyalty, not only to myself, but to the Commonwealth 
^of Massachusetts. 

Respectfully submitted, 

CLARENCE A. BARNES, 

Attorney General. 



REPORT OF THE VETERANS' DIVISION 



MESSAGE TO WORLD WAR II \'ETERANS AND THEIR 
DEPENDENTS. 

The Veterans' Division of the Department of the Attornej^ (General was 
set up for you over a year ago upon my assuming the duties of Attorney 
General of the Commonwealth on January 17, 1945. The following pages 
will tell j^ou about the services of this division, Kinds of Cases, Some In- 
teresting Facts, Veterans' Legislation and Hints for Veterans. 

To take over the work of this division I appointed Joel L. Miller, a 
veteran of World War I, past state commander of Veterans of Foreign 
AVars and active in veteran affairs as legal adviser for many years; Nicholas 
DeLeo, a veteran of World War II, member of the American Legion, 
former staff member of the Legal Division of the Massachusetts Selective 
Service System; and Lillian V. Macdonald who has had many years ex- 
perience in counselling and state administrative work. I am verj'^ much 
pleased with the work that they have done in your behalf. 

We are all proud of the men and women of Massachusetts who have so 
honorably served their country. We can never repay those who will not 
return nor can we console their families for the great loss of their loved 
ones. But we at home have a very important job to do not only in con- 
tinuing to watch over the general welfare of our heroes, their dependents, 
widows and orphans but we must see that they have full protection under 
the laws of the Commonwealth. 

Now that active war has ceased, we know that the greatest need of pro- 
tection, is not from the danger of our enemies but from discontent, con- 
fusion and discouragement which will face many of you in the months 
ahead. We have endeavored to assist you, who have served so gallantly 
and well during the war emergency, and to help with your problems so 
that you will be able to make the necesssary adjustments when you take 
up your responsibilities upon retiu'ning to civilian life. 

As Attorney General and as a public servant of the people I stand ready 
to do everything in my power to fight for the legal rights of our veterans 
and their dependents so that their sacrifice in serving their countiy will 
not have been in vain. The Veterans' Division is for you and may I ex- 
tend a most sincere and cordial invitation for you to make use of it to 
the fullest measure. Your valued suggestions will be most welcome. 

Sincerely yours, 

Clarence A. Barnes, Attorney General. 



12 P.D. 12. 

Kinds of Cases. 

Bonus. — Establishing domicile six months prior to entering military 
service. 

Civil Service. — Status of veteran as an employee after military leave of 
absence, also standing on lists which expired while in service. 

Contracts. — Contracts or agreements signed by veteran under possible 
fraudulent circumstances, and advice and information on court procedure 
to protect his rights. 

Divorces. — Problems of out-of-state marriages, divorces and general in- 
formation on probate court procedure. 

Domestic Cases. — Discord in homes, incompatibility, interference of 
in-laws and housing difficulties. 

Educational. — Rights under G. I. Bill, approved schools, on the job 
training and subsistence. 

Evictions. — 0. P. A. regulations and court procedure in evicting tenants 
especially because of change of ownership. 

Fraud. ■ — Used car, real estate and furniture frauds, etc. 

Furniture Cases. — Installment contracts, second hand furniture sold for 
new. 

Loans. — Charges of excessive rates of interest to veterans while in the 
military service. 

Licenses, Permits. — Eligibility and regulations concerning the opera- 
tion of trucks, business, taxis, hawkers, etc. 

Re-employment. — Not being given the same position or a position of 
like seniority, status and pay. 

Retirement. — Advice and information as to how laws affect World War I 
and World War II veterans. 

Real Estate. — The various housing problems arising when veterans 
buy a home without protection of agreement and are unable to occupy. 

Veterans Legislation. — Inquiries by veterans on World War I and 
World War II legislation. 

Miscellaneous. — Auto left for repairs sold; claim for back salary; trans- 
portation for war brides; veterans inquiring about surplus commodities; 
veterans interested in forming a partnership or corporation. 

Some Interesting Facts. 

1. More than 1,500 veterans, including their parents, wives, widows and 
dependents, have been interviewed in our office, asking a wide range of 
questions covering the kind of cases outlined in this pamphlet. 

2. Hundreds of veterans leave our office with their worries a thing of 
the past after giving them the necessary legal advice and counsel so that 
they can take the proper steps to correct some particular situation that 
was causing them untold misery and worry. 

3. Men and women still in the military service seek advice on problems 
that they will face upon discharge. There are also many inquiries from 
the legal staffs of Separation Centers seeking up-to-date information on 
benefits for veterans. 



P.D. 12. 13 

4. Veterans come to the division from every county in the Common- 
wealth and most of the cities and towns, from other States and a few from 
the mihtarj' forces of our allied nations. 

5. Referrals have come to this Division from the various Veterans' 
Centers tliroughout the Commonwealth — the Veterans of Foreign Wars, 
American Legion, Disabled American Veterans, Jewish War Veterans, 
American Veterans, Army and Navy Legal Departments, Necessities of 
Life, Legislators and heads of state, county, city and town departments, 
many citizens. Labor Unions, private attorneys, O. P. A., Selective Service 
and other federal and«etate agencies. 

6. Over a thousand telephone inquiries have been received and answered 
regarding veterans' problems. 

7. Nine hundred and eighty-five letters have been written to veterans 
and their dependents in reply to their requests for information. Our 
correspondence is very heavy from those still in the service and from mili- 
tary officials handling legal affairs, particularly concerning the state bonus. 

8. Thousands of dollars have been saved the veterans in counselling and 
in settlement of veterans' matters concerning furniture deals, loan claims, 
real estate and frauds. 

9. Many domestic relations cases have been prevented from being post- 
war casualties by guidance and counselling and patiently listening to the 
veteran. 

10. Massachusetts is the only State where an Attorney General has set 
up a Veterans' Division within his department. 

11. So many veterans appealed to this office for help with their eviction 
problems that I presented to the Legislature a bill granting the judges 
more discretion in the matter of evictions, thereby saving veterans and 
others from undue hardship in being evicted from their homes. 

12. We have also had a part in legislation for the benefit of veterans. 
In fact, many such laws passed during the 1945 and 1946 legislative ses- 
sions have originated from suggestions by the Veterans' Division staff to 
the members of the Legislature. 

13. Assistant Attorneys General Joel L. Miller and Nicholas DeLeo have 
presented cases to the federal courts on problems of re-employment on 
behalf of veterans of this Commonwealth under the following law. 

14. The \'eterans' Division was established by the Acts and Resolves of 
1941, chapter 708, section 15: 

"Upon the application of any resident of the commonwealth who en- 
tered said military or naval service and has received an honorable discharge 
or release therefrom, the attorney general and the adjutant general are 
hereby severally authorized and directed to take such legal and proper 
measures as may result in the reinstatement of such resident by his former, 
employer in the position which such resident held immediately prior to 
entering such service. On such application, he or they shall also inform 
such resident of his rights under the federal Selective Training and Service 
Act of 1940, under the federal Soldiers' and Sailors' Civil Relief Act of 1940 
and under Public Resolution No. 96-76th Congress, approved August 
twenty-seventh, nineteen hundred and forty, and shall co-operate with 



14 P.D. 12. 

the proper official or officials of the United States department of justice in 
obtaining for such resident his rights under either or both of such acts. 
Upon the making of any such application the former employer of such 
resident shall be notified thereof by the attorney general or the adjutant 
general, as the case may be, and be furnished with a copy of this section." 



Veterans' Legislation as applied to World War II Applicants. 

Bo7ius. 

Each person who shall have served in the armed forces of the United 
States on or after September 16, 1940, and prior to the termination of the 
present war, and shall have received a discharge or release other than a 
dishonorable one from such service, shall be paid the sum of one hundred 
dollars; provided, that the domicile of such person on account of whose 
service the application is filed shall have been in the Commonwealth for a 
period of not less than six months immediately prior to the time of his 
entry into service. 

Civil Service Examinations. 

No veteran will be disqualified by reasons of age from taking exam- 
inations under chapter 31 if at time of entry into military service he was 
of proper age to qualify. 

Creditable Service. 

Employee while member of contributory system of Commonwealth, 
when reinstated or re-employed in his former position, will have credited 
to him the amount of deductions that would have been credited had he 
not been in the armed forces, as a creditable service under the retirement 
law. 

Higher Education. 

Any child, resident of the commonwealth and not under sixteen whose 
father or mother was killed in action or died from cause service connected 
will be eligible to receive certain expenses to be paid for higher education. 

hicome Tax. 

Any person in the armed forces serving outside continental United 
States or on sea duty may delay time of filing to six months after dis- 
charge or eighth month following the month in which present war is ter- 
minated. 

Leave of Absence. 

Any employee of state or any political division thereof who on or after 
January 1, 1940, shall have tendered his resignation or left the service to 
enter the armed forces shall be deemed to have been on leave of absence 
and may return if he so requests in writing to the appointing authority 
and also files a certificate of a registered physician that he is not physically 
disabled or incapacitated for performing the duties of said position. If 
position is under chapter 31 (Civil Service) he may return within two years. 



P.D. 12. 15 

If position is not under chapter 31 he may return within one year, provided, 
that in case he was appointed for a fixed term, the term has not expired. 

Legal Rights of Minors. 

A veteran under twentj^-one years of age who is a resident of this com- 
monwealth and entitled to benefits provided by Federal Law known as 
the G. I. Bill of Rights may participate in such benefits and shall have full 
legal capacity to act in his own behalf in the matter of contracts, con- 
versances, mortgages and other transactions and with respect to such acts 
done by him he shall have all of the rights, powers and privileges and be 
subject to the obligations of a person of full age. 

Motor Vehicle Licenses. 

When license expires while holder is serving in the military or naval 
forces no fee will be charged /or examination for renewal of license to operate 
motor vehicle if application for such renewal is made within six months 
after termination of such service. 

Pedlers and Hawker's Licenses. 

Director may grant a special state license to a totally or partly dis- 
abled veteran who is a resident of the commonwealth, without fee, on 
proof of identity. 

Reinstatement — State Service. 

A veteran restored to service of state, county, city or town shall be 
entitled to all seniority rights to which he would have been entitled if his 
service had not been interrupted, and any such person whose salary is 
fixed under a classified compensation plan shall be eligible to a salary rate 
which includes accrued step rate increments to which he would have been 
eligible had he not gone into the armed forces. 

Retirement. 

Any veteran whose employment by the commonwealth or any political 
subdivision thereof was interrupted by his entrance into the armed forces 
and is eligible for reinstatement, may be retired under the retirement law 
applicable to him without such reinstatement, if he is physically or men- 
tally incapable of being reinstated and if he is otherwise eligible for re- 
tirement, provided his discharge was not dishonorable. 

A "Veteran," under the retirement act (chapter 658), is "any person 
who has served in the army, navy, coast guard or marine corps of the United 
States, or in any corps or unit of the United States established for the pur- 
pose of enabling women to serve with, or as auxiliary to, the armed forces 
of the United States, in time of war or insurrection and whose last dis- 
charge or release from active duty was under conditions other than dis- 
honorable, regardless of any prior discharge or release therefrom; pro- 
vided, that no member of the United States coast guard auxiliary and no 
temporary member of the United States coast guard reserve shall be 
deemed to be a 'veteran' within the meaning of this definition." 



If) P.D. 12. 

Hints for Veterans. 

Business. 

If starting a business check town and city ordinances and laws. 
"Partner Wanted" ads soliciting new funds are many times deceptive. 
Beware of promoters exaggerating earnings of vending machines. 
If investing in new invention see patent lawyer for advice. 

Contracts. 

If furniture is sent C. O. D. inspect carefully before making payment. 

When signing any contract be sure you ask for a copy. 

Make sure contract describes items fully. 

Contract or lease should list the price of each item. 

Do not sign any blank contract or agreement to be filled in later. 

Do not mix terms of an old contract with a new one. 

Read carefully provisions on "carrying charges" in installment leases. 

It is wise to specify in writing who bears loss for goods damaged. 

Do not let a seller hurry you into signing a contract. 

It may be fraud if seller refuses to give you a copy of contract. 

Contract should guarantee the fitness of items purchased. 

Loans. 

Avoid "Loan sharks" imposing unfair interest charges. 

Pay no more than 6% a year on any loans while in the service. 

Have G. I. Loan purchase appraised before making a down payment. 

Real Estate. 

When buying real estate first consult an appraiser. 
It is wise to have agreement drawn up and title checked l^y lawyer. 
Check for structural and mechanical defects before buying. 
Agreements should fully specify all terms and conditions involved. 
To occupy immechately agreement should read "free of tenants". 
Inquire about tenancy status of occupants before buying a house. 
Have agreements drawn up legally before making deposit. 

Sales of Personal Property. 

Check carefully as to ownership before buying personal property. 

Take inventory of goods when buying a store. 

Beware of unwritten promises or oral contracts. 

Check alteration or repair work for defects before final payment. 

When buying a store check on outstanding landlord and tenant lease. 

Used Cars. 

When buying a used car or truck take a mechanic with you. 
Beware of any purchase if agreement reads "Sold as is". 
Be sure deposit will be returned in event terms cannot be financed. 
Avoid signing agreement unless all guarantees are included therein. 
Do not finance agreement unless payment can be made from earnings- 
Promises by seller to replace used car parts should be in writing. 
Check O. P. A. ceiling prices before buying used car. 



SUPPLEMENTARY REPORT OF THE VETERANS' 

DIVISION. 



Kinds of Cases. 

Bo7ms. ■ — Establishing domicile six months prior to entering military- 
service. 

Civil Service. — Status of veteran as an employee after military leave of 
absence, also standing on lists which expired while in service. 

Contracts. — Contracts or agreements signed by veteran under possible 
fraudulent circumstances, and advice and information on court pi'ocedure 
to protect his rights. 

Divorces. — Problems of out-of-state marriages, divorces and general in- 
formation on probate court procedure. 

Domestic Cases. — Discord in homes, incompatibility, interference of 
in-laws and housing difficulties. 

Educational. — Rights under G. I. Bill, approved schools, on the job 
training and subsistence. 

Evictions. — O. P. A. regulations and court procedure in evicting tenants 
especially because of change of ownership. 

Fraud. — Used car, real estate and furniture frauds, etc. 

Furniture Cases. — Installment contracts, second hand furniture sold for 
new. 

Loans. — Charges of excessive rates of interest to veterans while in the 
military service. 

Licenses, Permits. — Eligibility and regulations concerning the opera- 
tion of trucks, business, taxis, hawkers, etc. 

Re-employment. — Not being given -the same position or a position of 
like seniority, status and pay. 

Retiremeyit. — Ad\dce and information as to how laws affect World Wiw I 
and ^\'orld War II veterans. 

Real Estate. — The various housing problems arising when veterans 
buy a home without protection of agreement and are unable to occupy. 

Vetera7is Legislation. — Inquiries by veterans on World War I and 
World War II legislation. 

Miscellaneous. — Auto left for repairs sold; claim for back salary; trans- 
portation for war brides; veterans inquiring about sin-plus commodities; 
veterans interested in forming a partnership or corporation. 

Some Interestinc; Facts. 

1. More than 2,000 veterans, including their parents, wives, widows and 
dependents, have been interviewed in our office, asking a wide range of 
questions covering the kind of cases outlined in this pamphlet. 



18 P.D. 12. 

2. Hundreds of veterans leave our office with their worries a thing of 
the past after giving them the necessary legal advice and counsel so that 
they can take the proper steps to correct some particular situation that 
was causing them untold misery and worry. 

3. Men and women still in the military service seek advice on problems 
that they will face upon discharge. There are also many inquiries from 
the legal staffs of Separation Centers seeking up-to-date information on 
benefits for veterans. 

4. Veterans come to the Division from every county in the Common- 
wealth and most of the cities and towns, from other States and a few from 
the military forces of our allied nations. 

5. Referrals have come to this Division from the various Veterans' 
Centers throughout the Commonwealth — the Veterans of Foreign Wars, 
American Legion, Disabled American Veterans, Jewish War Veterans, 
American Veterans, Ai'my and Navy Legal Departments, Necessities of 
Life, Legislators and heads of state, county, cit}^ and town departments, 
many citizens, Labor Unions, private attorneys, O. P. A., Selective Service 
and other federal and state agencies. 

6. Over a thousand telephone inquiries have been received and answered 
regarding veterans' problems. 

7. Many letters have been written to veterans and their dependents in 
reply to their requests for information. Our correspondence is very heav>' 
from those still in the service and from military officials handling legal 
affairs, particularly concerning the state bonus. 

8. Thousands of dollars have been saved the veterans in counselling and 
in settlement of veterans' matters concerning furniture deals, loan claims, 
real estate and frauds. 

9. Many domestic relations cases have been prevented from being post- 
war casualties by guidance and counselling and patiently listening to the 
veteran. 

10. Massachusetts is the only State where an Attorney General has set 
up a Veterans' Division within his Department. 

11. So many veterans appealed to this office for help with their eviction 
problems that I presented to the Legislature a bill granting the judges 
more discretion in the matter of evictions, thereby saving veterans and 
others from undue hardship in being evicted from their homes. 

12. We have also had a part in legislation for the benefit of veterans. 
In fact, many such laws passed during the 1945 and 1946 legislative ses- 
sions have originated from suggestions by the Veterans' Division staff to 
the members of the Legislature. 

13. Assistant Attorneys General Joel L. Miller and Nicholas DeLeo have 
presented cases to the federal courts on problems of re-employment on 
behalf of veterans of this Commonwealth under the following law. 

14. The Veterans' Division was established by the Acts and Resolves of 
1941, chapter 708, section 15: 

"Upon the application of anj^ resident of the commonwealth who en- 
tered said military or naval service and has received an honorable discharge 
or release therefrom, the attorney general and the adjutant general are 



P.D. 12. 19 

hereby severally authorized and directed to take such legal and proper 
measures as may result in the reinstatement of such resident by his former 
employer in the position which such resident held nhmediately prior to 
entering such service. On such application, he or they shall also inform 
such resident of his rights under the federal Selective Training and Service 
Act of 1940, under the federal Soldiers' and Sailors' Civil Relief Act of 1940 
and under Public Resolution No. 96-76th Congress, approved August 
twenty-seventh, nineteen hundred and forty, and shall co-operate with 
the proper official or officials of the United States department of justice in 
obtaining for such resident his rights under either or both of such acts. 
Upon the making of any such application the former employer of such 
resident shall be notified thereof by the attornej^ general or the adjutant 
general, as the case may be, and be furnished with a copy of this sec- 
tion." 



Veterans' Legislation as applied to World War 11 Applicants. 

Bonus. 

First Bonus. — Each person who shall have served in the armed forces 
of the United States on or after September 16, 1940, and prior to the 
termination of the present war, and shall have received a discharge or 
release other than a dishonorable one, from such service, shall be paid 
the sum of one hundred dollars; provided, that the domicile of such per- 
son on account of whose service the application is filed shall have been in 
the Commonwealth for a period of not less than six months immediately 
prior to the time of his entry into service. Chapter 731, 1945. 

Additional Bonus. — In addition to the sum of one hundred dollars paid 
under chapter 731 of the Acts of 1945, payments shall be made to persons 
and in sums as follows: 

1. One hundred dollars to each person who performed active service for 
more than six months, but served no part thereof in Alaska or in any place 
outside the continental limits of the United States. 

2. Two hundred dollars to each person who performed active service 
outside the continental limits of the United States or in Alaska. 

Note. — Such persons include Commissioned Corps of the United States 
Public Health Service and Officers of the United States Coast and Geodetic 
Survey assigned to active duty. Chapter 581, 1946. 

Civil Service. 

Municipal Offices. — An act relative to the placing under Civil Service 
of certain offices: In computing the period of five years, or ten years, as 
the case may be, of continuous service required under section forty-nine A 
of chapter thirty-one of the General Laws of an incumbent of a municipal 
office who has entered said military or naval service and returns to said 
office within two years after the termination of said service, the period 
between his entry into- said service and his return to said oflSce shall be 
counted. Chapter 61, 1946. 



20 P.D. 12. 

Women Veterans. — Women veterans of World War II eligible immedi- 
ately for provisional appointments under Civil Service Laws. Chapter 
145, 1946. 

Police or Fire Service. — Any veteran who will have attained the age of 
twenty-one on or before the date of any scheduled examination for police 
or fire service shall not be deemed ineligible for examination and appoint- 
ment because of established minimum age requirements to take said ex- 
amination; provided, that he meets all other pertinent requirements of 
the Civil Service Laws and Rules. Chapter 221, 1946. 

Certificate. — A certificate of a registered physician relative to a veteran's 
physical qualification for any office or position need not be filed, if the 
director of civil service has not fixed physical standards as a prerequisite 
to eligibility for original appointment to said office or position. Chapter 
238, 1946. 

Medal of Honor. — A veteran who has received a distinguished service 
cross or navy cross may, upon the recommendation of the director and 
with the approval of the Civil Service Commission, be appointed under 
the same conditions as are provided in the case of a person who has re- 
ceived a medal of honor which entitles him to apply to the director for 
appointment or employment in the classified Civil Service without ex- 
amination. Chapter 345, 1946. 

State Police Officers. — An act making a veteran of World War II eli- 
gible in certain cases for enlistment or appointment as a state police officer, 
provided that at the time of his entry into the armed forces he was less 
than thirty years of age and that his enlistment or appointment as such 
an officer is made within three years of his discharge. Chapter 260, 1946. 

Separation from State Service. — A veteran, who holds an office or posi- 
tion in the service of the Commonwealth not classified under civil service, 
other than an elective office, an appointive office for a fixed term or an 
office or position under section seven of chapter thirty, and has held such 
office or position for not less than ten years, shall not be involuntarily sepa- 
rated from such service except subject to and in accordance with the pro- 
visions of sections forty-three and forty-five of said chapter thirty-one to 
the same extent as if said office or position were classified under said 
chapter. Chapter 269, 1946. 

Examinations. — No veteran will be disqualified by reasons of age from 
taking examinations under chapter 31 if at time of entry into military 
service he was of proper age to qualify. Chapter 440, 1945. 

Commonwealth Citations . 

Citations. — ■ An act providing for the issuance by the Commonwealth, 
to certain persons who served in the armed forces of the United States 
during World War II, of citations or certificates as to such service. Chap- 
ter 459, 1946. 

An act providing for the issuance by the Commonwealth, to certain 
heirs-at-law of persons who died while serving in the armed forces of the 
United States during World War II, or as a result of such service, of cita- 
tions or certificates as to such service and death. Chapter 469, 1946. 



P.D. 12. 21 

Creditable Service. 

Retirement Lair. — Employee while member of eontributoiy system of 
( 'ommonwealth when reinstated or re-employed in his former position will 
have credited to him the amount of deductions that would have been 
credited, had he not been in the armed forces, as a creditable service under 
the retirement law. Chapter 671, 1945. 

Education. 

Utiiversity Extension Courses. — An act extending to veterans of World 
^^'ar II the advantages of university extension courses free of charge for a 
period of not more than four years. Chapter 439, 1946. 

Instruction. — An act providing temporarily for a course of school in- 
struction beyond the regidar high school course of instruction for the 
benefit of veterans and others. Chapter 532, 1946. 

Higher Education. — The Commonwealth, acting through the Depart- 
ment of Education, may contribute $250 toward the expenses of the higher 
education of any child, resident in the Commonwealth and not under six- 
teen years of age, whose father or mother entered the armed forces of the 
United States in time of war and was killed in action or died from other 
cause as a result of such service. Chapter 548, 1946. 

Apprentice Training. — An act relative to the appointment of veterans 
to civil service emplo}Tiients under the apprentice training provisions of 
the G. I. Bill of Rights, so called. 

Sectiox 1. The director of civil service may, upon request of an ap- 
pointing authority, approve the employment, for a period not to exceed 
three years, of any veteran trainee authorized imder the federal program 
designed to give apprentice training, or "on the job" training, to veterans 
in employments within the classified civil service. . . . 

Section 2. This act shall remain in effect only until July first, nine- 
teen himdred and forty-seven, but employments approved prior thereto 
may continue for the period approved hereunder. Chapter 586, 1946. 

Housing. 

Housing Units. — An act making an appropriation for furnishing cer- 
tain facilities for housing units for war veterans enrolled at the Massachu- 
setts State College. Chapter 74, 1946. 

Housing. — An act to provide housing for veterans of World War II. 
A veteran: a man or woman who served in the Army or Navy of the 
United States at any time on or after December 7, 1941, and before the 
conclusion of World War II, and has been separated therefrom under con- 
ditions other than dishonorable. The term shall also include the widow 
or the mother of a man who so served and who died while in such service 
and the wife of a man who is still serving in said Army or Nav^^ . Chapter 
372, 1946. 

Hospitalization. 

Soldiers' Home in Holyoke. — The Board of Trustees of the Soldiers' 
Home in Massachusetts is hereby authorized and directed to construct a 



22 P.D. 12. 

two-himdred-bed soldiers' home where hospital and domiciliary care shall 
be provided in like manner as that provided at the soldiers' home in the 
city of Chelsea. The eligibility of persons for admission to and treatment 
at the soldiers' home shall be governed by the eligibility requirement for 
admissions and treatment at said home in Chelsea. Chapter 475, 1946. 

Legal Rights of Minors. 

Contracts, etc. — Any veteran under twenty-one years of age who is a 
resident of this Commonwealth and entitled to benefits provided by Fed- 
eral Law known as the G. I. Bill of Rights may participate in such benefits 
and shall have full legal capacity to act in his own behalf in the matter 
of contracts, conveyances, mortgages and other transactions, and with 
respect to such acts done by him he shall have all of the rights, powers 
and privileges and be subject to the obligations of a person of full age. 
Chapter 408, 1945. 

Licenses. 

Hunt and Fish. — An act relative to the issuance to persons in the mili- 
tary or naval service of the United States of special certificates entitling 
them to hunt and fish in this Commonwealth. Chapter 178, 1946. 

Electricians. — An act granting a credit of 5% to the examination stand- 
ing of certain veterans applying for electricians' licenses. Chapter 480, 
1946. 

Plumbers. — An act granting a credit of 5% to the examination standing 
of certain veterans applying for plumbers' licenses. Chapter 502, 1946. 

Educational Qualifications. — An act exempting veterans of World War II 
from certain requirements of law for authority to engage in a trade or occu- 
pation. Such applicants shall be subject only to such educational and 
experience qualifications as were required by the provisions of law in force 
immediately prior to said September 16, 1940. Chapter 577, 1946. 

Loans. 

Banking and Insurance. — An act relative to the making by banking 
and insurance companies of loans to veterans of World War II guaranteed 
or insured by the Administrator of Veterans' Affairs. Chapter 126, 1946. 

Motor Vehicle License. 

Examination for Renewal. — When license expires while holder is serving 
in the military or naval forces, no fee will be charged for examination for 
renewal of license to operate motor vehicle if application for such renewal 
is made within six months after termination of such service. Chapter 
258, 1945. 

Pedlers' and Hawkers' Licenses. 

Disabled Veterans. — Director may grant a special state license to a 
totally or partly disabled veteran who is a resident of the Commonwealth, 
without fee, on proof of identity. Chapter 493, 1945. 



P.D. 12. 23 

Re-employment. 

Leo re of Absence. — Any employee of State or any political division 
thereof who, on or after Januaiy 1, 1940, shall have tendered his resigna- 
tion or left the service to enter the armed forces, shall be deemed to have 
been on leave of absence, and may return if he so requests in writing to 
the appointing authority and also files a certificate of a registered physi- 
cian that he is not physically disabled or incapacitated for performing the 
duties of said position. Chapter 708, 1941. 

Seniority. — A veteran who returns or is restored to service in an office 
or position in the service of the Commonwealth or any political subdivi- 
sion thereof within two years after having served in the military or naval 
forces of the United States shall be entitled to all seniority rights to which 
he would have been entitled if his service had not been interrupted by 
such military or naval service, and any such person whose salary is fixed 
under a classified compensation plan shall be eligible to a salary rate which 
includes accrued step-rate increments to which he would have been eligible 
except for absence on such military or naval service. Chapter 62, 1946. 

Retirement. 

Without Reinstatement. — Any veteran whose employment b}^ the Com- 
monwealth or any political subdivision thereof was interrupted by his 
entrance into the armed forces and is eligible for reinstatement, may be 
retii'ed under the retirement law applicable to him without such reinstate- 
ment, if he is physically or mentally incapable of being reinstated, and if 
he is otherwise eligible for retirement, provided his discharge was not dis- 
honorable. 

A veteran under the retirement act (chapter 658, 1945) is any person 
who has served in the army, navy, coast guard or marine corps of the 
United States, or in any corps or unit of the United States established for 
the purpose of enabling women to serve with, or as auxiliary to, the armed 
forces of the United States, in time of war or insurrection, and whose last 
discharge or release from active duty was under conditions other than 
dishonorable, regardless of any prior discharge or release therefrom; pro- 
vided, that no member of the United States coast guard auxiliary and no 
temporary member of the United States coast guard reserve shall be deemed 
to be a "veteran" within the meaning of this definition. Chapter 610, 
1945. 

Transportation . 

Special Transportation and Rates. — An act authorizing street railway 
companies to provide special cars and make special rates for veterans of 
World War II who are attending educational institutions under the G. 1. 
Bill of Rights. Chapter 253, 1946. 

Ta.vation. 

Exemptions. — Two thousand dollars of the combined estate of any 
veteran and his wife shall be exempted from taxation, provided that the 
whole estate, real and personal, of the person so exempted on the com- 



24 P.D. 12.. 

bined property of a veteran and his wife does not exceed eight thousand 
dollars, exclusive of value of mortgage interest by persons other than the 
person exempted. Veterans of all wars who were honorably discharged, 
or honorably released, and who in line of duty lost the sight of one eye or 
both, or either or both hands or feet, or who have a disability rating, 
service connected of twenty per cent as determined by the Veterans Adminis- 
tration, and the wives or widows of said veterans shall be eligible to said 
exemption. Chapter 579, 1946. 

Income Tax. — An act relieving persons who served in the existing war 
as enlisted personnel from the payment of income taxes upon their pay 
for such service, and providing that any person serving as a commissioned 
officer in said war shall have three years to pay any income tax accruing 
during the period of such service. Chapter 604, 1946. 

Vacations. 

Vacation Allowance. — Any veteran in the service of the Commonwealth,, 
who, prior to April thirtieth, nineteen hundred and forty three, resigned 
or was granted a leave of absence from the service of the Commonwealth 
to enter the armed forces of the United States during the present war, and 
who, upon honorable discharge from such service in said armed forces, has 
returned or returns to the service of the Commonwealth, shall be paid an 
amount equal to the vacation allowance as earned in the vacation year 
prior to his entry into such service in said armed forces which had not been 
granted prior to military leave, and, in addition, that portion of the vaca- 
tion allowance earned in the vacation year during which he entered such 
service, up to the time of military leave; provided, that no monetary or 
other allowance has already been made therefor. Chapter 430, 1946. 

Veterans' Benefits. 

Veterans^ Funerals and Burials. — Under this act cities and towns may 
reimburse to a limited amount to the American Legion, Veterans of For- 
eign Wars and Disabled American Veterans for funerals and burials of 
those who died overseas in World War II, provided they were residents 
of Massachusetts when entering the military service; this expenditure to 
be paid by the Commonwealth to the municipality. Chapter 573, 1946. 

Veterans' Services. 

Municipal Veterans' Services, Information, Advice. ■ — Requires cities and 
towns to set up departments to advise and assist veterans of all wars, in 
obtaining employment, education, hospital care, pensions and benefits. 
Chapter 599, 1946. 



P.D. 12. 25 

Hints for Veterans. 

Business. 

If starting a business check town and city ordinances and laws. 
^'Partner Wanted" ads soliciting new funds are many times deceptive. 
Beware of promoters exaggerating earnings of vending nifichines. 
If investing in new invention see patent lawyer for advice. 

Contracts. 

If furniture is sent C. O. D. inspect carefully before making payment. 

When signing an}" contract be sure you ask for a cop5^ 

Make sure contract describes items fully. 

Contract or lease should list the price of each item. 

Do not sign any blank contract or agreement to be filled in later. 

Do not mix terms of an old contract with a new one. 

Read carefully provisions on "carrying charges" in installment leases. 

It is wise to specify in writing who bears loss for goods damaged. 

Do not let a seller hurry you into signing a contract. 

It may be fraud if seller refuses to giva you a copy of contract. 

Contract should guarantee the fitness of items purchased. 

Loans. 

Avoid "Loan sharks" imposing unfair interest charges. 

Pay no more than 6% a year on any loans while in the service. 

Have G. I. Loan purchase appraised before making a down payment. 

Real Estate. 

When buying real estate first consult an appraiser. 
It is wise to have agreement drawn up and title checked by lawyer. 
( 'heck for structural and mechanical defects before buying. 
Agreements should fully spec-fy all terms and conditions involved. 
To occupy immediately agreement should read "free of tenants". 
Inquire about tenancy status of occaipants before buying a house. 
Have agreements drawn up legally before making deposit. 

Sales of Personal Property. 

Check carefully as to ownership before buying personal property. 

Take inventory of goods when buying a store. 

Beware of unwritten promises or oral contra(;ts. 

Check alteration or repair work for defects before final payment. 

Vrhen buying a store check on outstanding landlord and tenant lease. 

Used Cars. 

When buying a used car or truck take a mechanic with you. 
Beware of any purchase if agreement reads "Sold as is". 
Be sure deposit will be returned in event terms cannot be financed. 
Avoid signing agreement unless all guarantees are included therein. 
Do not finance agreement luiless payment can be made from earnings. 
Promises by seller to replace used car parts should be in writing. 
Check O. P. A. ceihng prices before buying used car. 



OPINIONS. 



Retirement — Teachers — Annual Salaries. 

July 9, 1945. 

Mr. Hugh P. Baker, President, Massachusetts State College. 
Dear Sir : — You have sent me the following communication : 

"Two teachers at this College who reached age 70 during the school 
year just closed have been notified by the State Board of Retirement that 
their retirement becomes effective as of July 1, 1945, in accordance with 
G. L. c. 32, § 4, pars. (1) b and (1) c. 

In accordance with G. L. c. 29, § 31, we understand that they are en- 
titled to full annual salary for their service from September 1, 1944 to 
June 30, 1945, of which only ten twelfths have been paid. The Deputy 
Comptroller of the Commonwealth, Mr. A. E. Hoyt, has recommended 
that the opinion of the Attorney General be secured before payment is 
made. 

Therefore, your opinion is requested in answer to the following ques- 
tions : 

1. Is the Treasurer of the Massachusetts State College authorized by 
law to pay to teachers retired for superannuation on June 30 the two 
twelfths of their annual salary normally paid monthly at the end of July 
and August? 

2. If the answer to question 1 is affirmative, must such payment be in 
lump sum as of June 30?" 

I answer both vour questions in the affirmative. G. L. (Ter. P]d.) c. 32, 
§ 4 (1) (fo) and (r), reads: 

"(b) Except as otherwise provided in paragraph (1) (c), a member shall 
be retired for superannuation upon attaining age seventy; and on and 
after January first, nineteen hundred and forty, a member classified in 
Group 1 as set forth in paragraph (14) of section two shall be so retired 
upon attaining age sixty-five. 

(c) A member, regardless of his official classification, employed in a 
school or college in the department of education and acting as an instructor 
or supervisor of instruction of classes conducted during a school year or 
term, shall be retired on the first day of July next following the date on 
which age seventy is attained, but any such member attaining said age 
in July. August or September shall thereupon be retired." 

The Massachusetts State College is in the Department of Education 
(G. L. (Ter. Ed.) c. 15, § 20) and the teachers to whom you refer were, I 
assume from the context of your communication, such instructors as are 
mentioned in said section 20 and consequently under the provisions of 
said section 20, having reached the age of seventy during the past school 
year, must be retired on July first. 

The said teachers were entitled to an anmtal salary for regular service 
rendered from September 1, 1944, to June 30, 1945, based upon service 
rendered "for the number of weeks established by the department for 



P.D. 12. 27 

such school to be in session," as set forth in said (i. L. (Ter. F.d.) c. 29, 
§ 81, and I assume from the facts as you have stated them in j'our com- 
munication that the service of these teachers between September first 
and .July first had been for such number of weeks. It is provided in said 
section 31 that "notwithstanding" the general regulation established by 
the first sentence of said section 31 salaries paid on the first of the month 
''shall be in full for all services rendered to the commonwealth," with 
respect to the salary of a teacher in a school or colU^ge within the Depart- 
ment of Education : 

"the annual salary of each teacher . . . whose regular service is rendered 
from September first to June thirtieth, shall be for his service for the num- 
ber of weeks established by the department for such school to be in ses- 
sion during said period, payable, however, in equal instalments on the 
first day of each month, and the amount earned and unyaid at the time of 
his . . . retirement . . . shall be paid forthwith to the persons entitled 
thereto ..." 

The words "school" and "college" as used in the quoted provisions of 
said section 31 are employed by the Legislature as virtually s>Tionymous. 
The amoimt earned and unpaid to the teachers in question on July 
first is two twelfths of their annual salary, and upon their retirement on 
that day such earned and unpaid amount is to be paid to them forthwith 
under the provisions of said G. L. (Ter. Ed.) c. 29, § 31. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Metropolitan District Commission — Citij of Newton — Metropolitan Water 

System. 

July 16, 1945. 

Mr. Nelson Curtis, Secretary, Metropolitan District Commission. 

Dear Sir: Replying to your inquiry of May 17 relative to the matter 
of the assessment on the city of Newton for water, I undei'stand the facts 
to be as follows: 

1 . The city of Newton has been a niember of the Metropolitan Water 
District since some time prior to 1932 bat did not make application to 
the Metropolitan District Commission for water until 1944, the date when 
the city became a member subject to full assessment being Jime 9, 1944. 

2. From the date when it first became a member until said June 9, 
the citv of Newton has paid an assessment based upon one fifth of its total 
vahiation under G. L. (Ter. Ed.) c. 92, ^ 26. 

3. I'he city of Newton still I'eceives some water from other than Met- 
ropolitan Water sources. 

4. On October 12, 1900, the city of Newton deecknl to the Common- 
wealth for the use of the Metropolitan Water Board, of which the Metro- 
politan District Connnission is the successor, certain premises containing 
a reservoir, and the deed contains the following paragraph : 

"It is understood and agreed that the covered reservoir situate north- 
easterly fiom the granted premises will be allowed by the grantee to over- 
flow into the reservoir upon the granted premises as at present; and that 
the Metropolitan Water Board will, until such time as the city of Newton 
obtains a regular supply from the Metropolitan \\'ater Works, furnish 



28 P.D. 12. 

water to the cit\^ of Xewton free from charge in all cases of eirergency 
except a deficiency in the capacity of the sources of supply, and in each 
year a total quantity of water equal to the contents of the reservoir upon 
the granted premises." 

5. The capacity of the reservoir referred to in the passage above quoted 
is found by the chief water supply engineer of the Metropolitan District 
Commission to be 13,500,000 gallons. Of this amount, said engineer fmds 
that the citv of Newton used 11,025,000 gallons in 1944, prior to June 9. 

6. On April 18, 1945, under G. L. (Ter. Ed.) c. 92, § 26, as then most 
recently amended by St. 1943, c. 543, the State Treasurer tentatively 
computed a charge of $79 per million for 85,205,000 gallons of water fur- 
nished bv the District to Newton in 1944 amounting to $6,731.20, plus an 
amount of $26,184.06 computed at 3/200 of 1^7, as $26,184.06, making a 
total assessment of $32,915.26. The city of Newton has called attention 
to the fact that in this calculation was included as having been fiu'nished 
by the Metropolitan District to the city of Newton, 11,025,000 gallons of 
water which the city received prior to June 9, 1944 and to which it was 
entitled under the deed containing the passage quoted under 4 above. 
The total assessment, as claimed by the city of Newton, should be 
$32,044.28. 

Upon the foregoing facts, the question is, whether said amount of 
11,025,000 gallons of water, to which the city of Newton was entitled 
under the contract contained in its deed, can properly be inchided in the 
computation of water furnished by the Metropolitan District to said city 
for the purpose of determining the assessment. 

This question arose before the passage of St. 1945, c. 587 and therefore 
turns upon the construction of G. L. (Ter. Ed.) c. 92, § 26, as amended 
by St. 1943, c. 543, § 2. The pertinent provisions of said section read as 
follows : 

"The state treasurer, for the purpose of making the apportiomr ent to 
the towns in the metropolitan water district of the amount required in 
each year to pay the interest, sinking fund requirements and expenses of 
maintenance and operation of the metropolitan water system, shall, in 
each yesiv, apportion such an.oimt to the towns in said district, one third 
in proportion to their valuations, and the remaining two thirds in propor- 
tion to their consumption, in the preceding year, of water received from 
all sources of supply as determined by the commission and certified to 
said state treasurer;" (proviso as to one fifth valuation, now inapplicable, 
omitted) "provided, further, that the assessment of any town assessed 
upon its full valuation, which obtains a part of its water suppl}' from 
other than disti'ict sources, shall not exceed, by more than three two 
hundredths of one per cent of such valuation, the prodvict of the total 
number of million gallons of water supplied to said town in the preceding 
year from the metropolitan water system by a cost per million gallons 
equal to forty dollars plus the product of twenty dollars by the ratio of 
the town's valuation to the aggregate valuation of all members of the 
district and by the inverse ratio of the town's total water consumption to 
the aggregate consumption of all members in the preceding year." 

The question is, in substance, whether, under the foregoing language, 
the 11,025.000 gallons which the city of Newton received prior to June 9, 
1944, can properly be included in the "total number of million gallons of 
water supplied to said town in the pi-ecedirig year from the metropolitan 



P.D. 12. 29 

water SA'stem." In my opinion, water to which the town was entitled 
free of charge under the terms of the deed of October 12, 1900. when 
furnished prior to June 9, 1944, cannot be inckided in computing; the 
amount "supplied'' by the Metropolitan Water system to the city in 
1944. The word "supply" in its context means supplied under chapter 
92 of the General Laws to a member city or town, which is obtaining its 
water supply in part from the IMetropolitan Water system and in part 
from other sources, and does not apply to water to which the citj^ was 
entitled under a contract in force prior to its application for water to the 
Metropolitan District Commission. This is a case where the literal con- 
struction of the words must be governed by the intent, which is apparent 
from the section as a whole. The contract with the city of Newton was 
made in 1900 and continued in force until June 9, 1944. The language of 
the statute became law in 1943. While it may not be unconstitutional for 
a state to repudiate a contract with a city or town, such repudiation is not 
likely to be inferred if the language of the statute is capable of a different 
construction. Furthermore, the common sense of the section indicates 
that it was not intended to make a town pay for water to which it was 
already entitled. The intent is further shown by the following provision 
immediately succeeding the passage above quoted, showing that a town 
newly admitted to the Metropolitan Water District would not be charged 
for any water received before its admission in computing its assessment 
for the next year: 

"If any town is admitted to the metropolitan water district too late 
in any j^ear to share with the other members the total district assessment 
for that year, it shall be assessed and pay as a part of its assessment for 
the following year a sum equal to the product of the total number of 
million gallons of water furnished it by the district during the balance of 
the year of its admission by a cost per million gallons equal to forty dol- 
lars plus the product of twenty dollars by the ratio of the tow^n's valua- 
tion to the aggregate valuation of all members of the district and by the 
inverse ratio of the town's total water consumption to the aggregate con- 
sumption of all members in the preceding year." 

Also the deed, quoted under 4 above, carefully distinguishes between a 
regular supply from the Metropolitan Water works and water fiu-nished 
under the deed. 

You are accordinglv advised that the assessment upon the cit}^ of Xew- 
ton for 1945 under G. L. (Ter. Ed.) c. 92, § 26, as amended bv St. 1943, 
c. 543, § 2, should have been S32,044.28 and not $32,915.26. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Contract — Appropriation — Ordinary Maintenance. 

July 26, 1945. 

Hon. Herman A. MacDonald, Commifffiioner of Public Works. 

Dear Sir: — In a recent communication vou have called my attention 
to G. L. (Ter. Ed.) c. 29, § 13, which reads as follows: 

"An unexpended balance of an appropriation for ordinary maintenance 
of an}' fiscal year may be applied in the succeeding fiscal year to the pay- 



30 P.D. 12. 

ment of expenses incurred during the fiscal year for which the appropria- 
tion was made; but any balance then remaining shall revert to the com- 
monwealth." 

In connection with this section and in relation to contracts entered into 
by your department, for the payment of which pro%dsion was originalh' 
made by the Legislature through its appropriation to your department 
for ordinary maintenance, you have asked my opinion upon the following 
questions : 

"1. Does a contractual obligation of this department, the cost of which 
is paid from the appropriation items above referred to, become an obliga- 
tion for the full amount of the contract against the appropriation of the 
fiscal year in which the contract is made? 

2. May the unpaid balance of a contractual obligation referred to in 
question one be paid from the appropriations covering work in succeeding 
years?" 

I answer both these questions in the affirmative. By including a suffi- 
ciently large sum in a department's budget from year to year for ordinary 
maintenance, a commissioner may always have available, if the Legislature 
appropriates according to such budget recommendations, adequate funds 
to meet old contractual liabilities when they become payable, irrespective 
of the disposition of vmexpended balances provided for in said section 13. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Corporation — Fee for Increase of Capital Stock. 

Aug. 3, 1945. 

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

Dear Sir: — You have asked my opinion as to the fee to be charged 
to a corporation under 0. L. (Ter. Ed.) c. 156, § 54, wherein an amendment 
was filed by a corporation to increase its authorized capital stock by (a) 
30,000 shares of convertible preferred stock of the par value of $50 each; 
and {h) 500,000 shares of common stock of the par value of $1 each, and 
to decrease the authorized capital by 55,000 Class B shares without par 
value; 275,000 of the newl}^ authorized 500,000 shares of common stock 
of $1 par value being exchanged for the 55,000 Class B shares already 
mentioned; the Class B shares to be cancelled. 

In computing the fee, your office allowed for the 275,000 shares of com- 
mon stock of $1 par value which is being used to retire the 55,000 shares 
of Class B stock. An examination of G. L. (Ter. Ed.) c. 156, § 54, indi- 
cates that there is no provision in the statute with reference to the fees 
for filing a certificate providing for a change of shares without par value 
to shares with par value. 

It is conceivable to think of other situations which are not expressly 
provided for by the aforementioned section 54. However, undoubtedly 
the Legislature intended that there should be an additional charge when 
there was a capital increase . 

In the issue at bar, the total amount of the capital increase is two mil- 
lion dollars, but there was also a decrease by the retirement of the 55,000 
Class B shares without par value on which the corporation had already' 



P.D. 12. 31 

paid a fee of S550. It, therefore, would seem that the sum of $450 would 
take care of the net capital increase of the corporation. Commonwealth v. 
Cnitecl States Worsted Coinpan)/, 220 Mass. 183. 

In my opinion, the Legislature intended that a corporation should pay 

a fee for filing a certificate providing for the net increase in capital stock. 

Therefore, an appropriate refund should be made to the corporati 

Very truly yours, 

Clarence A. Barnes, Attorney (ie\era!. 

Resident — DomieUe — Bonus — Veteran. 

Aud. 7, 1945. 

Jlon. John E. Hurley, Treasurer and Receiver General. 

Dear Sir: — You have asked my opinion in connection with the per- 
formance of your duties arising under St. 1945, c. 731, as to whether the 
word "resident," as employed by the Legislature in section 1 of said chap- 
ter 731, is to be construed as meaning "domicile." 

I answer your inquiry in the negative. 

Said section 1 requires the payment, upon application, of the sum of 
one hundred dollars to certain veterans of World War II. This require- 
ment has the following proviso which, in its material parts, reads: 

"provided, that every person on account of whose service the application 
is filed shall have been a resident of the commonwealth for a period of 
not less than six months immediately prior to the time of his entry into 
service ..." 

The words "domicile" and "residence" are not necessaril}^ synony- 
mous (Marlborough v. Lynn, 275 Mass. 394, 397). A person's residence 
is that place wherein he is personally staying at some place of abode with 
no present intention to remove therefrom. Cambridge v. West Springfield, 
303 Mass. 63, 67. The Legislature, by the use of the phrase "a resident 
of the commonwealth for a period of not less than six months," has plainly 
indicated an intent to designate one who has had such a place of abode of 
expected permanency in this C'ommonwealth throughout a period of six 
months immediately before his entry into the armed forces of the United 
States, irrespective of where such person's "domicile" may have been. 

I have returned photostatic copy of said chapter 731, which you for- 
warded to me. 

^^ery truly yours, 

Clarence A. Barnes, Attorney General. 

Bridges — Through Routes — Construction of St. W/fO, c. 690. 

Au(i. 10, 1945. 

Hon. Herman A. MacDonald, Commissioner of Public Works. 

Dear Sir: — You have asked me three questions with relation to the 
construction of St. 1945, c. 690, in connection with a certain map referred 
to therein. 

The pertinent part of section 1 of said chapter 690 provides that the 
care, control and maintenance of every public highway bridge of a certain 
designated span "located on a through route" are transferred to the 



32 P.D. 12. 

Department of Public Works and, on January 1, 1946, such bridge shall 
become a state highway. 
The section sets forth that: 

"a through route is defined to be any route shown on a map entitled 
'Route Map of Massachusetts, 1941', published by the Massachusetts 
department of public works, including the insert maps on the reverse side 
thereof, in whatever form such route is indicated." 

You have laid before me a copy of the map referred to in said section. 

Said section refers to "routes'" only as shown on said map. It does not 
refer to roads as such shown on the map. The phrase "in whatever form 
such route is indicated" does not bring within the definition of route any 
ways appearing on said map which are not shown thereon as "routes." 

The map itself shows some ways in red and some in black. The legend 
upon the map e.xplains such ways by referring to "numbered routes red." 
No other "routes," except those ways printed, are referred to in the legend 
as being upon the map. The other ways thereon which are printed in 
black are referred to in the legend as "connecting roads." 

Your first question reads: 

"Does that part of section 1 relative to the definition of routes include 
all routes and roads designated on the map under the title 'Legend' as 
numbered routes in 'red' and connecting roads in 'black'?" 

The definition of routes above quoted does not embrace any way except 
such as is a "route shown on a map ... in whatever form such route is 
indicated." Reading the map in connection with the legend thereon, it 
is apparent that the ways shown in black are not "routes" and do not 
purport to be "routes" indicated in a peculiar form. The only ways 
indicated on the map as "routes" are those printed in red. 

Accordingly, I answer your first question in the negati^'e. 

The ways shown in various municipalities on the back of the map con- 
tain no legend but it would appear from their design that those ways 
which are "routes" are shown by heavy black lines and municipal streets 
not routes are indicated by a lighter color. 

1 therefore answer your second question in the negative. 

Your third question relates to section 5 of said chapter 690, which reads: 

"Nothing in this act shall afTect existing agreements, decrees, orders 
or statutes defining the duties, responsibilities or obligations of railroad 
companies or other public utilities relative to any such bridge so made a 
state highway or transferred to the control of the metropolitan district 
commission." 

Your question reads: 

"Are the obligations of all municipalities, counties, or public authority 
appearing in agreements, decrees, orders or statutes with railroad com- 
panies or public utilities transferred to the Department of Public Works?" 

I answer this question to the effect that, since the control of certain 
bridges has been vested in j^our department by section 1 of said chapter, 
the duty of enforcing the obligations of railroad companies or public utili- 
ties in respect to such bridges now rests upon your department. 
\'ery truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 33 

Milk Control Board — Deductions of Assessments paid by Milk. Dealers 
from Amounts due from Producers. 

Aug. 13, 1945. 
Milk Control Board. 

Gentlemen: — You have asked my opinion on the following questions 
relative to deductions of assessments paid by milk dealers from amounts 
due from them to producers: 

•'(l) With respect to milk dealers who pay their producers only the 
niininuwi prices required by orders of the Board, — do the provisions of 
said paragraph (b) of section 9 (a) require, or (6) authorize, the Board 
to disallow an}^ deductions made b}^ such milk dealers from such minimum 
prices on account of assessments paid under paragraph (a) of said sec- 
tion 9, unless such assessments are paid to the Milk Control Board on or 
before the tenth day of the month, for the milk handled by the milk dealer, 
in the manner set forth in said paragraph (a), during the preceding month? 

(2) With respect to milk dealers who pay their producers in excess of 
the minimum prices required by orders of the Board, — do the provisions 
of said paragraph [b) of section 9 (a) require, or (6) authorize, the Board 
to disallow deductions (not exceeding in amount the dealer's payinent in 
excess of the minimum) made by such milk dealers from such prices in 
excess of the minimum, on account of assessments paid under paragraph 
(a) of said section 9, where such assessments are not paid to the Milk 
Control Board on or before the tenth day of the month for the milk han- 
dled by the milk dealer, in the manner set forth in said paragraph (a), 
during the preceding month? 

(3) Would the answer to the foregoing question numbered (2) differ 
depending on whether the price paid by the milk dealer in excess of the 
minimum, was (a) a price required to be paid by the dealer under the 
terms of a contract between him and the producer, or (b) a price an- 
nounced or established by the dealer as his producer payment price, on 
the basis of which he was making settlement to producers for milk de- 
livered during the particular deliver}^ period in question?" 

I answer your first two questions to the effect that the Milk Control 
Board is required to disallow the deductions referred to in each of these 
(luestions. 

I answer j^our third question to the effect that the Milk Control Board 
is required to disallow deduction in both the instances referred to in this 
question. 

G. L. (Ter. Ed.) c. 94A, § 9 (b) provides: 

"One half of any such payment made by any milk dealer on or before 
the tenth day of the month in which such payment is due, on account of 
milk sold or distributed by him in the highest use classification from time 
to tune determined by the board for such market or markets, may be 
deducted rateably by him from amounts due from him to producers for 
such milk." 

It appears from the language of this section that the deduction is per- 
missible only if the assessment payment is made by the milk dealer on 
or before the tenth of the month. Such payment was apparently in- 
tended by the Legislature to be a condition precedent to the taking of 
the deduction. 



34 P.D. 12. 

With reference to the deduction in cases where the price paid by the 
milk dealer to the producer is higher than the minimum price, there is no 
language in the statute indicating a legislative intent that the deduction 
should be taken from the minimum price established by the board, rather 
than from the amounts due from the dealer to the producer for milk sold 
at a price above such minimum. The deduction therefor may be taken 
from any amounts that are due and the fact that the amounts which are 
due are based on a price higher than the minimum established by the 
board does not change the authorization of the statute in this respect. 

Where the price paid to producers is not based on a contract between 
the dealer and the producer, but is higher than the minimum price estab- 
lished by the board, it would seem that the dealer has chosen this price 
voluntarily and it becomes the basis upon which the amount due to the 
producer is determined, so that deductions should be authorized only for 
assessments paid by the dealer on or before the tenth of each month from 
any amount due the producers based on the higher price. 

I appreciate the difficulties that are being encountered by some deal- 
ers, due to wartime conditions, in complying with the statutory require- 
ments of payment on or before the tenth of the month, and the persua- 
siveness of the dealers' contention with reference to deductions in cases 
where the prices paid by dealers to producers are higher than the mini- 
mum price established by the Board. 

If it is felt that payment of the assessment on or before the tenth of 
the month and the disallowance by the board of the deductions herein 
discussed are not practical and impose undue hardships, they may be 
made the subject of a request to the Legislature for change by amendment 
to the statute. These hardships, however, can be avoided if the dealer 
should deposit with the Milk Control Board a sufficient sum to cover the 
assessment due on the approximate maximum monthly business, or pay 
to the Milk Control Board on or before the tenth of the month a sum of 
money which will be sufficient to cover the amount of any assessment 
that may subsequently be determined to be due for the preceding month. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Resident — Vetera^i — Bonus — Evidence. 

Aug. 21, 1945. 

Hon. John E. Hurley, Treasurer and Receiver General. 

Dear Sir: — You have called my attention to St. 1945, c. 731, § 4, 
conmioiily called the bonus bill, which reads in part: 

"The state treasurer may accept the written statement of an assessor 
of a city or town that a person claiming pay or on whose account pay is 
claimed by a dependent or heir-at-law, . . . was a resident thereof on 
the first day of Januarj^, in any year ..." 

You have asked my opinion as to whether an assessor may delegate to 
a deputy or other person authority to make the "written statement of 
an assessor" mentioned in said section 4. 

I am of the opinion that he may not properly do so and that such a 
statement made by some one other than an assessor himself is not the 



P.D. 12. 35 

"written statement" mentioned in said section, and is not one which the 
State Treasurer may accept "as prima facie evidence" of the fact of 
residence under the provisions of said section. 

The duty of making a "written statement" as to residence which may 
be given the force of "prima facie evidence" has been placed by the Legis- 
lature upon assessors ])ersonally. The nature of such a statement as 
"prima facie e\adence" appears to have been considered by the Legisla- 
ture as based upon the official position of assessor of the one making it. 
Such duty is, therefore, not of a kind the performance of which may be 
delegated by an assessor to someone else. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Bonus — Veteran — United States Coast Guard Reserve. 

Aug. 27, 1945. 

Hon. John E. Hurley, Treasurer and Receiver General. 

Dear Sir: — You have sent me the following communication: 

"I wish to request your opinion as to whether or not, under the provi- 
sions of St. 1945, c. 731, it is legal for the State Treasurer to pay the so- 
called Massachusetts state bonus to men who have served in the United 
States Coast Guard Reserve." 

I am of the opinion that you may pay the "bonus," so called, under 
the provisions of St. 1945, c. 731, to men who have served in the United 
States Coast Guard Reserve and possess the necessary qualifications set 
forth in said chapter. 

Section 1 of said chapter 731 provides for the payment of a sum of 
money from the treasmy of the Commonwealth without appropriation to 
each person who "shall have served in the armed forces of the United 
States on or after September sixteenth, nineteen hundred and forty and 
prior to the termination of the present war, as declared by presidential 
proclamation or concurrent resolution of the congress," with certain 
qualifications which do not require to be dwelt upon here. 

Section 2 of said chapter 731 reads: 

"The words 'armed forces', as used in this act, shall mean the follow- 
ing:— United States Army, Army of the United States, United States 
Navy, United States Naval Reserve, United States Marine Corps, United 
States Marine Corps Reserve, United States Coast Guard, Woinen's 
Army Corps, Women's Auxiliary — Nav>', Women's Auxiliary — United 
States Marine Corps, Women's Auxiliary — United States Coast Guard, 
Army Nurse Corps and Navy Nurse Corps." 

Although the United States Coast Guard Reserve is not specifically 
mentioned in said section 2, yet the United States Coast Guard is named 
therein and the United States Coast (iuard Reserve has been established 
by Congress as "a component part of the (said) coast guard" (U. S. C. A., 
Title 14, §§ 301, 302, as amended), and its members may be ordered to 
active duty in time of war (§ 305). Moreover, the Coast Guard, of which 
the Coast Guard Reserve is a "component part," operates as a part of 
the nay>'- in time of war (U. S. C. A., Title 14, § 1, as amended). It fol- 



36 P.D. 12. 

lows that in time of war a member of the Coast Guard Reserve is a mem- 
ber of the Coast Guard and, as was said in Petition of Delgado, 57 F. Supp. 
460, 462, is "serving ... in the naval forces of the United States." See 
Broum v. Cain, 56 F. Supp. 56, 58. 

In view of the foregoing considerations, it seems apparent that the 
words "United States Coast Guard," as used by the Legislature in said 
section 2, comprehend within their sweep the ' ' United States Coast Guard 
Reserve," and the fact that the said "reserve" w'as not specifically men- 
tioned by name in said section 2 does not under the circumstances indi- 
cate a legislative intent to exclude the members of the United States 
Coast Guard Reserve from recognition under the terms of the said chapter 
as persons who "have served in the armed forces of the United States 
during the present war" as expressed in the title of the chapter. 
Yery truly yours, 

Clarence A. Barnes, Attorney General. 



Statute — Termination — Conclusion of Existing State of War. 

Aug. 27, 1945. 

Hon. Thomas H. Buckley, Chairman, Commission on Admiiustration 

and Finance. 

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

"Will you, at your convenience, kindly submit to this Commission your 
ruling in regard to the termination of chapter 16 of the Acts of 1942, 
(Spec. Sess.), relative to employment of certain employees of the Com- 
monwealth." 

The Attorney General, following a long line of practice and procedure 
of this department, does not give general rulings or opinions upon the 
construction of statutes. He confines his opinions upon questions of law 
to matters which are presently before an officer of the Commonwealth 
for the performance of some duty upon the part of such officer. 

For your guidance, however, let me say that the termination of St. 
1942 (Spec. Sess.), c. 16, is provided for in section 3 of said chapter as 
follows : 

"This act shall remain in effect during the continuance of the existing 
state of war between the United States and any foreign country, and 
employments hereunder shall not extend beyond the effective period of 
this act." 

The conclusion of "the existing state of war" referred to in said sec- 
tion 3 will not occur until the end of such state of war is declared by Con- 
gress or by proclamation of the President, acting under authority of Con- 
gress. Until such declaration is so made, said chapter 16 by the terms of 
said section 3 still remains in effect. When such declaration is so made, 
the effective period of said chapter 16 will be at an end. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 37 

Veteran — "Existing State of War" — Allowances for Dependent 

Relatives. 

Sept. 5, 194.5. 

Hon. Francis X. Cotter, Commissioner of Veterans Aid and Pensions. 

Dear Sir: — In a recent communication you have asked my opinion 
as follows : 

"Your opinion is requested as to whether or not we can assist the 
dependents of those men who have been, or will be, inducted since hostili- 
ties ceased on August 16th, and with the declaration of \'-J Day. Sep- 
tember 2d." 

"The continuance of the existing state of war between the United 
States and any foreign country and for six months thereafter" is set by 
St. 1942 (Spec. Sess.), c. 11, § 1, as the period during which an "allow- 
ance for the dependent relatives of any soldier or sailor" may be given. 

"The existing state of war," referred to in said section 1, will continue 
\mtil the end of such "state of war" is declared by Congress or by proc- 
lamation of the President, acting under authority of Congress. 

The Legislature in said chapter 11 did not set up a specific date as the 
day upon which such aid should terminate nor upon which the "existing 
state of war " should be taken to have ended, as it did with relation to aid 
furnished by virtue of service in the first World War (see G. L. (Ter. Ed.) 
c. 115, §6). 

Accordingly, I answer your inquiry to the effect that assistance may 
be given under St. 1942 (Spec. Sess.), c. 11, § 1, to dependents of soldiers 
and sailors inducted into service before such declaration by Congress or, 
such proclamation of the President, acting under authority of Congress, 
irrespective of events of August 16th or of V-J Day, September 2, 1945, 
since no declaration of the end of the "state of war" existing when said 
chapter 11 was enacted has been declared by Congress or by the Presi- 
dent under its authority. 

\''ery truly yours, 

Clarence A. Barnes, Attorney General. 

(iovernor and Council — Discretion as to Disapproval of Certain Items in 
Warrants — Legislative Declarations. 

Sept. 5, 1945. 

To His Excellency the Governor and the Honorable Council. 

Gentlemen: — You have laid before me chapters 42 and 53 of the 
Resolves of 1945, being respectivel}^ a "Resolve in favor of Guj' Marvel 
of Petersham" and a "Resolve in favor of Mary L. D'Amore of Mai- 
den," providing for the payment to said Marvel of $4,166.16 and to the 
said D'Amore, as assignee of D'Amore Construction Co., Inc., of $48,000. 

With relation to said chapters you have asked my opinion in the fol- 
lowing terms : 

"The Governor and Council i-espectfully requests an opinion as to 
whether or not upon the presentation of the warrants, containing these 
items, submitted to them for approval, they may exercise any discretion 
in disapproving said items in the absence of fraud or other irregularity." 



38 P.D. 12. 

It is set forth in said chapter 42 that the payment to said JMarvel is 
"in full pa^niient of the claim of said Marvel against the commonwealth 
for the loss of business alleged to have been caused by certain work per- 
formed by the metropolitan district water supply commission." 

It is set forth in said chapter 53 that the payment to said D'Amore, 
assignee, represents *Hhe loss suffered" by her assignee, D'Ainore Con- 
struction Company, Inc., "by reason of delays required by officials of 
the commonwealth making impossible the carrying out of certain con- 
tracts entered into with said company relative to alterations to the boiler 
house, and new office building, at the Boston state hospital and resulting 
in the inability of said company during said period to use for any other 
purposes certain compressors, . . . and requiring said company to keep 
on the premises at its expense certain watchmen and superintendent. . . ." 

A legislative declaration that such payments are authorized by it "for 
the purpose of discharging a moral obligation of the commonwealth and 
promoting the public good" appears in each of said chapters. 

In view of such legislative declarations and the enactment of said chap- 
ters with the approval of the Governor, the Governor and Council may 
not now properly e.xercise "discretion in disapproving" items for the pay- 
ments provided for by the General Court in said chapters, now appearing 
in warrants presented to you by the Comptroller. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Unemploymeyit Compensation — Agreements with Federal Government. 

Sept. 5, 1945. 

His Excellency, Maurice J. Tobin, Governor of the Commonwealth. 

Sir: — The telegram of Senator Walter F. George, dated September 3, 
1945, as construed by me, poses two questions which follow, and I advise 
that these questions be answered as indicated : 

1. Can Massachusetts enter into an agi'eement with the Federal Gov- 
ernment without such agreement resulting in State payments under 
unemplo\Tnent compensation being partially or totally reduced by the 
amount of Federal supplement? 

The answer to this question is in the negative, under G. L. (Ter. Ed.) 
c. 151A. § 66. 

This section authorizes the Director of the Division of Employment 
Security to enter into reciprocal agreements with appropriate and duly 
authorized agents of other States or the Federal Government, or both, 
to administer their unemployment compensation laws within the territo- 
rial jurisdiction of the agent State. There is no other provision in the 
State law which permits the administrative agency to make agreements 
with other State or Federal agencies for any other purpose. If the pro- 
posal here under consideration is not a Federal Unemployment Compen- 
sation Act but merely a subsidiary provision to permit further payments 
under the State law, then it is quite clear that the administrative agency 
has no power to enter into such an agreement. If the proposal consti- 
tutes a Federal Unemployment Compensation Act, then the Director 
has no authority to enter into an agreement which will change the benefit 
schedules provided by St. 1945, c. 484. 



P.D. 12. 39 

2. If no agreement is entered into between Massachusetts and the Fed- 
eral (Government, will the Federal supplement payments result in i-educ- 
tion of the amoimt paid by the State? 

The answer to this (juestion is in the affirmative, under G. L. (Ter. 
Ed.) c. 151A, § 26. 

This section provides that no benefits shall be paid under this chapter 
to an individual for any week with respect to which, or a part of which, he 
has received or is seeking unemployment benefits under unemployment 
compensation law or unemployment security law of any other State or 
of the United States. It therefore follows that if a person receives pay- 
ments from the Federal Government, he is not eligible to receive pay- 
ments under the Massachusetts Unemployment Compensation Law. 
Very truly yours, 

Clarence A. Barnes, Attorney Geyieral. 



Commissioner of AgricuUiire — Chairman of Milk Control Board — In- 
compatibility of Offices. 

Sept. 10, 194.5. 

Hon. Frederick E. Cole, Commissioner of Agriculture. 

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

"I request your opinion upon the following question: 

Is the present Commissioner of Agriculture disqualified by the provi- 
sions of St. 1945, c. 497, § 2, from holding the office of chairman of the 
]\Iilk Control Board by an appointment for three months only, during a 
leave of absence without pay from his office as such commissioner given 
him by the Governor for the purpose of having him serve as such chair- 
man temporarily for three months?" 

I answer your question in the affirmative. 

St. 1945, c. 497, § 2, in its pertinent parts reads: 

"The milk control board . . . shall continue in existence with the same 
membership, powers and duties, except that the commissioner of agriculture 
shall, upon said effective date (of the act) cease to be a member of said board 
and that the governor . . . shall as soon as practicable . . . appoint one 
additional member of said board for a term expiring on September thirtieth, 
nineteen hundred and foi-ty-eight and shall thereupon designate one of 
the membeis of said board as chairman thereof." 

It is further provided in section 1 of said chapter 497 that the chairman 
so designated is to receive a salary of six thousand dollars and expenses 
and is to devote his whole time to the duties of such office. 

Said chapter 497 contains an emergency preamble. It was approved 
by the Governor on June 28, 1945. This law was not suspended by a 
i-eferendum petition under Const. Amend. XL VIII, The Referendum, 
III, § 3, and is consequently in effect. 

Prior to the enactment of said chapter 497 the Commissioner of Agricul- 
t\u-e was ex officio a member and chairman of the Milk Control Board, 
serving without compensation (G. L. (Ter. Ed.) c. 20, § 7). 

It would appear from the provisions of said chapter 497 that it was the 
intent of the Legislature to provid(^ not only that the then Conmiissioner 
of Agriculture should cease to be a member of the Milk Control Board 



40 P.D. 12. 

and that the place so left vacant was to be filled by the Governor's appoint- 
ment for a term of years of some person other than a commissioner of 
agriculture, but also that the Governor was to designate a chairman of 
said board from among the two remaining members and such newly ap- 
pointed person. In other words, it would seem to have been the intent 
of the Legislature to disqualify any holder of the office of such commis- 
sioner from becoming a member of the Milk Control Board and conse- 
quently from being made its chairman. 

The Legislature has, unless there be constitutional provisions prevent- 
ing, which do not exist with relation to the offices now under consideration, 
the same right to provide disqualifications that it has to provide qualifica- 
tions for office. NicJwIs v. Comviissioner of Public Welfare, 311 Mass. 
125, 130; Opinion of the Justices, 240 Mass. 611, 613, 615. 

An officer of the Commonwealth may be excluded by the Legislature 
from eligibility for an office other than that which he already holds and 
such a disqualification will prevent his becoming the incumbent of such 
other office in addition to the one which he already occupies. A commis- 
sioner of agriculture does not cease to hold such office because he is given a 
leave of absence without pay and the fact of such leave does not remove 
the disqualification which the Legislature has placed upon his holding the 
office of a member or chairman of the Milk Control Board. 

Such disqualification applies equally to an appointment for three months, 
if there be authority to appoint for any such period, as to an appointment 
for a term prescribed by said chapter 497. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veterans — Residents — Tuition. 

Sept. 10, 1945. 

His Excellency, Maurice J. Tobin, Governor of the Commonwealth. 

Sir: — Your Excellency has asked my opinion with relation to three 
questions addressed to you in a communication from the manager of the 
Providence office of the L^nited States Veterans Administration so that 
you may answer such communication. These questions are as follows: 

"(1) ]\Iay the proper authorities of any institution maintained in whole 
or in part by public funds charge a higher rate of tuition to vocationally 
handicapped veterans who are entitled to the benefits of Public Law 16, 
78th Congress, than is charged to other resident students similarly cir- 
cumstanced who are not veterans? 

(2) If the answer to question number (1) is in the affirmative, what 
standards are to be applied in determining the cost of such tuition^ 

(3) If the answer to question number (1) is in the negative, what action 
by the Veterans Administration, if any, is required in order that such 
public institutions may accept such veterans for education or training 
therein?" 

1. The answer to the first question should be in the negative. How- 
ever, for the purpose of applying tuition rates, only those veterans are to 
be regarded as "residents" of Massachusetts who have their permanent 
homes within the Commonwealth. Persons who have their domiciles or 
permanent homes outside Massachusetts are not to be regarded as "resi- 



P.D. 12. 41 

dents" merely because of their sojourn at an institution of learning in the 
Commonwealth from which they presently intend to depart when their 
instruction is finished. 

2. In view of this answer to the first question, no answer is required to 
the second ciuestion. 

3. ^^'hile it is not for the officers of the Commonwealth to advise the 
Veterans Administration as to what action they shall take in regard to 
making contracts for education of veterans such as are referred to in the 
third question, in reply to this question it may be said that if this opinion 
of the Attorney General is sent to the heads of the offices of those State 
institutions with which the Veterans Administration desires to contract, 
such officers in the performance of their duties will be required by you to 
comply with the opinion expressed by the Attorney General herein. 

Irrespective of such specific authorization as may have been given by 
the Administrator of Veterans Affairs "to make non-resident tuition charges 
for resident veterans attending institutions under the provisions of Public 
Law 346, 78th Congress," to which reference is made in the said communi- 
cation to you, if such an authorization has not been given so as to include 
veterans attending institutions for "vocational rehabilitation" under the 
terms of Public Law 16, 78th Congress, the charging of non-resident rates 
for the tuition of veterans who are in fact residents of Massachusetts be- 
cause of tuition sought for purposes of such "vocational rehabilitation" 
under said Public Law 16 is not authorized imder the laws of the Com- 
monwealth. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Veteran — Resident — Settlement. 

Sept. 10, 1945. 

Hon. Patrick A. Tompkins, Commissioner of Public Welfare. 

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

"One Robert Baxter was admitted to the West Department, Massa- 
chusetts Memorial Hospital, on April 10, 1944 and discharged May 17, 
1944. 

He was born in Cambridge, Massachusistts, September 8, 1938. Par- 
ents, Robert F. Baxter and Marjorie Morley; both born Boston, Massa- 
chusetts. 

This family was aided by the Department of Public Welfare of Cam- 
bridge, Massachusetts, March 24, 1941, as an unsettled case, and the 
Commonwealth paid the bill. 

On the above admission to the hospital Cambridge notified the Com- 
monwealth on April 17, 1944, and has billed the Commonwealth for his 
care. 

We find that patient's father, Robert F. Baxter, enlisted from Cam- 
bridge, Massachusetts, October 27, 1942, Draft Board No. 46, and was 
still overseas late in 1944. 

What is the settlement status of Robert F. Baxter on April 10, 1944, 
taking into consideration Executive Order No. 32, and the Attorney Gen- 
eral's opinion dated May 9, 1945?" 

You have not informed me whether it is a fact that the said Robert F. 
Baxter had a permanent home in Cambridge at the time of his enlist- 



'42 P.D. 12. 

ment. If he did have, he ''resided" in Cambridge at such time, in the 
sense in which the word "resided" is used in Executive Order No. 32 and 
in G. L. (Ter. Ed.) c. 116, § 1, par. 6, as amended by St. 1943, c. 455. 
§ 13, and by force of said order and said chapter 116 he is deemed to have 
a settlement in said Cambridge, the place of his enlistment. His minor 
child also by force of said Executive Order No. 32 and said chapter 116, 
section 1, as amended, is deemed to have a settlement in such place of 
enlistment, Cambridge. 

Since it does not appear from any facts of which you have advised me 
that said Baxter has been proved guilty of wilful desertion or left the 
United States service without an honorable discharge or release, his set- 
tlement is his place of enlistment on April 10, 1944, namely, Cambridge 
(see opinion of the Attorney General to the Commissioner of Public Wel- 
fare, May 9, 1945). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Civil Service — Employees of Metropolitan District Water Supply Commis- 
sion doing Work under St. 1945, c. 705. 

Sept. 12, 1945. 

Mr. William B. Morrissey, Chairman, Metropolitan District Water 

Supply Commission. 

Dear Sir : — In a recent letter you have requested my opinion as to 
whether or not the work provided for in St. 1945, c. 705, may be carried 
on by employees who have not been qualified under civil service. 

Your commission was established by St. 1926, c. 375, in section 2 of 
which act it was provided: 

"... The commission may appoint and in its discretion remove such 
engineering, legal, clerical and other assistants as it may deem necessary 
to carry on the work herein authorized, and may fix their compensation 
in accordance with such rules and regulations as the commission may 
establish and as shall be approved by the governor and council. Such 
appointments shall not be subject to classification under sections forty- 
five to fifty, inclusive, of chapter thirty of the General Laws, and chapter 
thirty-one of the General Laws shall not apply to removals, and, in ac- 
cordance with such regulations as the commission may establish and as 
shall be approved by the governor and council, any appointment, includ- 
ing that of the chief engineer, may be wholly exempt from said chapter 
thirty-one. Upon request of the commission, the division of civil service 
shall hold special examinations." 

St. 1927, c. Ill, in extending the powers of your commission and divert- 
ing a water supply from the headwaters of the Sudbury River, provided 
in section 2 as follows: 

"In constructing the works herein authorized, the metropolitan dis- 
trict water supply commission shall proceed with the organization and in 
the manner provided by said chapter three hundred and seventy-five for 
extending the metropolitan water system ..." 

St. 1927, c. 321, further extended the powers of your commission in the 
Swift River project, so called. This act provided in section 3: 



P.D. 12. 43 

"In constnictinfi the works authorized by this act the metropolitan 
district water supply conuiiission shall proceed with the organization and 
in the manner provided by said chapter three hundred and seventy-five. 
All of the provisions of section two of said chapter three hundred and 
seventy-five relative to the emplojnnent of laborers, workmen and me- 
chanics and relative to the appointment, removal and fixing of compen- 
sation of all employees of the commission, including the appointment 
and removal of a chief engineer, shall apply in carr\'ing out the provisions 
of this act. None of the employees of the commission, whether appointed 
before or after the effective date of this act, shall become members of the 
state retirement system, but those who are members thereof at the time 
of their emplojmient may be continued therein." 

St. 1941, c. 720, provided for sewage disposal needs to be carried out 
by your commission, and in section 1 of this act it is stated: 

"... Subject to the conditions hereinafter provided, the metropolitan 
district water supply conunission, enlarged as hereinbefore provided . . ." 

In section 5 of the same act it is provided : 

"... All of the provisions of section two of said chapter three hun- 
dred and seventy-five relative to the emplojmient of laborers, workmen 
and mechanics and relative to the appointment, removal and fixing of 
compensation of all employees of the said metropolitan district water 
supply commission, including the appointment and removal of a chief 
engineer, shall apply in carrying out the provisions of this act. None of 
the employees of said metropolitan district water supply commission, 
whether appointed before or after the effective date of this act, shall be- 
come members of the state retirement system, but those who are members 
thereof at the time of their employment may be continued therein. ..." 

This act was repealed by section 14 of your present act, chapter 705. 
The present act in question provides in section 1 : 

"... Subject to the conditions hereinafter provided, the metropolitan 
district water supply commission, enlarged as hereinbefore provided ..." 

Nothing in the act is said relative to^ the employment of laborers, work- 
men or other emploj'ees. 

In reading all these acts together, and from the fact that the Legisla- 
ture before passage struck from the present act all provisions regarding 
civil service, it would appear to be the intent of the General Court as ex- 
pressed in said chapter 705 that the work provided for therein may be 
carried on by employees who have not been qualified under civil service. 
Very truly yours, 

Claren^ce a. Barnes, Attorney General. 

Milk Control Board — Authority to Make Orders of Curtailment of Deliveries. 

Sept. 21, 1945. 
Milk Control Board. 

Dear Sirs: — In a recent letter you have asked my opinion as to the 
power of your board to make certain suggested orders, curtailing deliveries 
of milk by retailers to consumer, based upon findings of fact which you 
assume your board might make after possible further hearings. Inasmuch 



44 P.D. 12. 

as such hearings have not yet been held and the evidence which may be 
adduced is entirely problematical, your question is purely hypothetical. 
The Attorney General, following a long line of practice and procedure by 
this department, does not render opinions upon hypothetical questions. 

For your guidance, however, I will say that the supposititious factual 
findings set forth in your letter do not indicate that such orders as you 
suggest would be so reasonably adapted to effectuate any of the objects 
of the Milk Control Law as to be within the authority of the board. While 
it is conceivable that there might be produced evidence of factual condi- 
tions, such, for example, as existed during the national emergency, as 
would warrant the formulation of orders of the proposed type, nevertheless 
there are no sufficient assumed facts set forth in your letter to make it 
reasonable to predicate factual findings thereon which would warrant a 
conclusion that orders of curtailment based thereon would be said by the 
courts to be reasonably adapted to accomplish the object of the Milk Con- 
trol Law and so to be within the power of the board. The board's orders 
to be within the scope of its authority and so valid, whether dealing with 
trade practices or other similar activity, must have a reasonable adapta- 
tion to the accomplishment of the objects of the said law. American Caii 
Co. V. Milk Control Board, 316 Mass. 337. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Insurance — Group Life Policy — Foreign Company — Licensed Resident 

Agent. 

Sept. 21, 1945. 

Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — In a recent letter you have informed me that a foreign 
insurance companj^ which is licensed to transact business in the Common- 
wealth, including, I assume from the context of your letter, the business of 
writing insurance upon lives, proposes to insure all the employees, both 
union and non-union, of the several employer members of an association, 
under a group life policy issued from one of its offices outside the State to 
trustees "located outside the Commonwealth." The premiums on the 
policy are to be paid by the several employers to the trustees, who trans- 
mit them to the insurance company, and all insured employees are resi- 
dents of Massachusetts. 

The laws of Massachusetts do not provide for the issuance of such a 
policy. (See G. L. (Ter. Ed.) c. 175, §§ 133-138, as amended.) You in- 
form me, however, that the laws of the State in which the company pro- 
poses to issue the policy provide for a policy of group life insurance cov- 
ering both union and non-union emploj'ees issued to trustees. 

With relation to such a foreign insurance company so issuing such a 
policy, you have asked my opinion upon the following questions : 

"1. In view of the provisions of G. L. c. 175, §§ 150 and 163, if a group 
life insurance policy is issued to a gi'oup of Massachusetts residents by a 
foreign insurance company under the plan outlined above, will the company 
be violating section 157 of G. L. c. 175 (Resident Agent Law) and will 
such company be amenable to the punishment specified in said section 
157 and to the revocation or suspension of its license as detailed in section 5 
of said chapter? 



P.D. 12. 45 

2. Would the issuance of such a poHcy undei- tho plan outlineil above 
by a foreign insiuance company admitted to transact business in the 
Commonwealth constitute a violation of G. L. c. 175, § 3?" 

G. L. (Ter. Ed.) c. 175, § 157, as amended, in its pertinent part provides: 

"Foreign companies admitted to do business in the commonwealth shall 
make contracts of insiu'ance upon lives, property or interests therein, . . . 
only by lawfully constituted and licensed resident agents therein. . . ." 

Said chapter 175, section 150, pi'ovides in part: 

"Foreign companies, upon complying with the conditions herein set 
forth applicable to such companies, may be admitted to transact in the 
commonwealth, as provided in section, one hundred and fifty-seven, anj^ 
kinds of business authorized by this chapter, subject to all general laws . . . 
relative to insurance companies, and subject to all laws applicable to the 
transaction of such business bj' foreign companies and their agents . . ." 

Said chapter 175, section 5, as amended, provides that the Commissioner 
of Insurance may revoke the license of any foreign compan}- if he is satis- 
fied that such company "has violated any provision of law." 

I am of the opinion that a foreign insurance company, licensed to do 
business in the Commonwealth, which issues a policy of group life insur- 
ance such as has been described, to trustees outside Massachusetts and, 
accordingly, not through a licensed agent resident in the Commonwealth, 
has violated the provisions of said section 157 by not making such polic}' 
through a licensed resident agent, and is amenable to the punishment 
specified in said section 157 for such a violation, and also to the revocation 
of its license under the provisions of said section 5. 

Such a group policy is a contract "of insurance upon lives" as the 
quoted words are used in said section 157; the lives being those of the 
employees covered, who are residents of Massachusetts. It is required 
by the provisions of said section 157, that such a policy shall be made 
only by a licensed agent resident in the Commonwealth. Since, as has 
been stated, the particular tjq^e of group life policj^ is not one which may 
be issued under the provisions of the laws of the Commonwealth, it is, in 
fact, issued outside Massachusetts and not made through a licensed resi- 
dent agent, and the provision of said section 157 that contracts of insur- 
ance upon lives must be made only by licensed resident agents has been 
violated. 

This provision for the making of contracts only through licensed resi- 
dent agents is one which the Commonwealth may properly make and is 
one with which a foreign insurance company must comply in order to do 
business in Massachusetts. The company's subjection to this require- 
ment of our law is implicit in its acceptance of a license and in its transac- 
tion of business thereunder in the Commonwealth, by force of the terms 
of said sections 150 and 157. The rights of a resident of Massachusetts 
to insure in whatever State he pleases and the rights of a foreign com- 
pany 7wt licensed to do business in the Commonwealth to issue elsewhere a 
policy not authorized by our laws to a resident of the Commonwealth are 
not affected by this principle, which prevents a foreign company from 
accepting the privilege of doing an insurance business in Massachusetts 
and then violating the conditions under which the privilege has been 
extended to it by the Legislature. Palmetto Fire Ins. Co. v. Connecticut, 
9 F. (2d) 202; 272 U. S. 295. 



46 P.D. 12. 

With regard to the second question, in view of my answer to the first 
there would appear to be no necessity at this time for my rendering an 
opinion upon this query. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Reformatory for Women — Release on Indenture — Domestic Service. 

Sept. 24, 1945. 
Hon. J. Paul Doyle, Commissio7ier of Correction. 

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

"I respectfully request your opinion relative to G. L. c. 127, § 85, per- 
taining to the type of work for which an inmate of the Reformatory for 
Women may be released on indenture." 

G. L. (Ter. Ed.) c. 127, § 85, reads: 

"The commissioner may, with the consent of a woman serving a sen- 
tence in the reformatory for women or in a jail or house of correction, 
and with the consent of the county commissioners if she is in a jail or 
house of correction, contract to have her employed in domestic service for 
such term, not exceeding her term of imprisonment, and upon such con- 
ditions, as he considers proper with reference to her welfare and reforma- 
tion. If in his opinion her conduct at any time during the term of the 
contract is not good, he may order her to return to the prison from which 
she was taken." 

It is obvious that the authority of the said commissioner to make con- 
tracts for the employment of the female pris6ners referred to in said sec- 
tion 85 is limited by the terms of the section to the making of contracts 
for employment in "domestic service" only and does not extend to the 
execution of contracts for employment in forms of labor in any service 
not comprehended by the words ''domestic service." 

The word "domestic," as an adjective, in its usual connotation means 
belonging to a home or household. Commonwealth v. Flynn, 285 Mass. 
136, 139. It is defined in Webster's International Dictionary as "of or 
pertaining to the household or family." As a noun, it is defined in such 
dictionary as "one who lives in the family of another." 

It is plain that '^ domestic service" as used in said section, means service 
rendered in or about an employer's house such as is usually necessary or 
desirable for the maintenance and enjoyment of a home. As so used it 
does not include service rendered in a store, hotel, mercantile or mechani- 
cal establishment, nor in farm labor. See Toole Furniture Co. v. Ellis, 
5 Ga. App. 271; Barnes v. Waterson Hotel Co., 196 Ky. 100; Calto v. 
Plant, 106 Conn. 236; Waterhouse v. State, 21 Tex. App. 663. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 47 

Veteran — Leave of Absence — Step-rate Increments — Accumulated Vaca- 
tion Time. 

Oct. 2, 1945. 

Clifton T. Perkins, M.D., Commissioner of Mental Health. 

Dear Sir : — Yoii have informed me that one Kaye, employed as a 
steam fireman at tlie Westboro State Hospital, resigned this position on 
December 5, 1943, and gave as his reason for resignuig that his eyes were 
being impaired by the character of the work which he was obliged to 
perform as such fireman; that on February 21, 1944, he was inducted 
into the United States Army through the draft. You further advise me 
that said Kaye has recently been discharged from the army and seeks 
reinstatement in his former position. 

In relation to the foregoing facts you have asked my opinion upon the 
following question: 

"Is Mr. Kaye entitled to the benefits under chapter 708, particularly 
as regards step-rate increases or vacation time?" 

You do not state it specifically, but I assume from the tenor of your 
communication for the purposes of this opinion that said Kaye did not 
file a written resignation in which he stated that he was leaving his posi- 
tion because of "the fact that firing impaired his eyes," but that he made 
an oral resignation and afterward entered the military service of the 
United States. Upon this assumption, said Kaye, under the terms of St. 
1941, c. 708, § 1, as amended by St. 1943, c. 548, § 1, is to be deemed to 
have been upon a leave of absence and to be entitled to his position upon 
his honorable discharge from the army and, under the provisions of sec- 
tion 24 of said chapter 708, upon his return to his position, he is entitled 
to the benefit of seniority rights as if his service in such position had not 
been interrupted and, if his "salary is paid under a classified compensa- 
tion plan," he is entitled to a salary rate "which includes accrued step- 
rate increments to which he would have been eligible except for absence 
on such military . . . service." There is, however, no provision of the 
statutes which would entitle the said Kaye to any theoretical accumulated 
vacation time not due him prior to his entrance into the military service. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Administration and Finance — Rules — Interpretations. 

Oct. 2, 1945. 
His Excellency the Governor and the Honorable Council. 

Gentlemen : — You have asked my opinion in a recent communication, 
with particular relation to "Vacation Rules of the Commission on Ad- 
ministration and Finance," "approved by the Governor and Council on 
April 14, 1943," as to whether or not it (the Governor and Council) "has 
authority to interpret rules." 

An interpretation of existing administrative rules either by the officers 
who made such rules or by the officers who approved them, not made in 
passing upon any specific matter coming before them for official action, 
has no particular force as a matter of law, though such a preliminary in- 



48 P.D. 12. 

terpretation may be of practical assistance as an attempt to inform those 
interested as to the views of such officers on the construction of the rules. 
It is only when in the performance of their duties that officers have to 
make application of the rules to particular matters actually coming before 
them for determination that the construction of rules becon.es of vital 
importance. In so far as a preliminary interpretation of a rule was cor- 
rect, it would be proper to follow it in making such a determination; in so 
far as it was not correct, it would not be proper to follow it. The act of 
making the preliminary interpretation does not give to such interpretation 
any finality or any indelible mark of correctness. The propriety of any 
construction of a rule when made by an officer or board in determining a 
matter in controversy may be a question for judicial decision when the 
rights of an employee or other person are concerned. 

In other words, the making of general interpretations of rules in advance 
of actual determinations of causes is for the convenience of those interested 
but without any legal force or effect, it would seem, therefore, proper for 
a rule-making body, or for a body requii'ed to approve rules, to make gen- 
eral interpretations of rules in advance of determinations of particular 
matters for the purpose of enlightening persons concerned with such rules 
as to the views of public officers with regard to the meaning of the rules 
for what such views may be worth. 

Assuming for the purposes of this opinion, although there may well be 
doubt upon the subject, that the Commission on Administration and 
linnncG has authority to make "Vacation Rules" and the Governor and 
Council authority to approve the same, the commission would be within 
its authority in making and publishing, as it has already done, its inter- 
pretations of such rules, and the Governor and Council, as the approving 
body and the one charged with the power to hear certain appeals by em- 
ployees (G. L. (Ter. Ed.) c. 30, § 5), would likewise have authority to 
make its own interpretations of such rules. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 

Milk Control Board — Orders — Curtailment of Deliveries. 

Oct. 2, 1945. 
Milk Control Board. 

Dear Sirs: — In your letter dated September 12, 1945, you have asked 
my opinion on the following questions: 

" (1) If the board after public hearing and on the basis of evidence re- 
ceived at such hearing, finds that the practice of everj^-other-day retail 
delivery of milk effects a substantial reduction in the cost of distribution, 
that if the practice of every-other-day delivery continues the price of milk 
to the consumer will remain substantially lower than it will if the general 
practice of daily deliver}^ returns, that such lowered cost to the consumer 
would result in the consumption of more milk within the Commonwealth 
than would otherwise be consumed and would thereby benefit the public 
health and also improve the return to producers, and that such action 
would be most beneficial to the public interests and best protect the milk 
industr}^ may the board under the present provisions of chapter 94A 
properly adopt and continue in effect after the termination of the present 
emergency an order providing for eveiy-other-daj" deliverv as provided in 
Official Order No. G-702 enclosed? 



P.D. 12; 40 

(2) If so, may the board properly ineliule in sucli order provisions for 
(a) single stop wholesale delivery, (6) limitation of special deliveries and 
(c) prohibition of call-backs, as contained in said Official Order No. G-702? 

(3) If the answers to questions numbered (1) and (2) (c) are in the 
affirmative, may the board upon suitable finding with respect to the effect 
of earlier deliveries in creating necessity for call-backs for collection, prop- 
erly adopt and continue in force a davlight delivei-v oider similar to Official 
Order No. G-600'.'" 

Question (1) is predicated upon findings of fact which you assume your 
board might make upon evidence produced before it at a future hearing. 
Inasmuch as such a hearing has not been held, and the evidence which 
may be produced at any such hearing is entirely problematical, as are also 
the facts to be found by your board after such a hearing, your question is 
purely hj-pothetical. The Attorney General, following a long line of prac- 
tice and procedure of this oflfice, does not render opinions upon hypothetical 
questions. 

For your guidance, however, I suggest that the facts which the board 
assumes it would find after a hearing, and which are embodied in ques- 
tion (1), do not indicate that any order based thereon providing for e very- 
other-day delivery would have any reasonable or material effect in carry- 
ing out the objects or purposes of the Milk Control Law. In the decision 
in the case of American Can Company v. Milk Control Board, 316 Mass. 
337, 340, 341, the Supreme Judicial Court substantially states the purposes 
of the Milk Control Law to be "to provide for the establishing of minimum 
prices for milk which 'will be most beneficial to the pubhc interest,' will 
'best protect the milk industry,' and 'insure a supply of pure, fresh milk 
adequate to cover consumer needs.' § 10." Further intention and pur- 
poses of the Milk Control Law are stated in section 25 of the act, which 
reads as follows : 

"It is hereby declared that the production and distribution of milk is 
an industry affected with a paramount public interest relating to the 
public health. The intention and purpose of this chapter is hereby de- 
clared to extend to the regulation of said industry and to the control of 
all milk sold or offered for sale in the commonwealth, to the full extent 
permitted by the constitutions of th^ commonwealth and of the United- 
States, respectively." 

The powers of the board as stated in the first decision in the case of the 
American Can Company v. Milk Control Board, 313 Mass. 156, 158 are — 

'"to supervise and regulate the milk industry of the commonwealth, in- 
cluding the production, purchase, receipt, sale, payment and distribu- 
tion of milk,' and the control of unreasonable and burdensome surpluses; 
to apportion equitably among producers the total value of milk pur- 
chased by dealers: to encourage the production of a regular, continous 
and adequate supply of fresh milk; to promote programs designed to 
increase its consumption; to investigate and regulate for the purposes of 
the law 'all matters pertaining to markets, to the production, manufac- 
ture, processing, storage, trans])ortation, disposal, distribution and sale of 
milk . . . and to the establishment and maintenance of reasonable trade 
practices relative to milk.'" 

The suggested order of the board does not seek to prevent any unfair 
practice, illegal act or detrimental feature of the milk industry in its rela- 



50 P.D. 12. 

tion to the public. Moreover, it does not appear from anything stated in 
your letter that such an order, if adopted, could have such evidential sup- 
port for factual findings required by section 21 of the Milk Control Law 
as would impel the Superior Court to sustain the order in the event of a 
petition for a review. 

In the case of Germain E. Cloutier v. State Milk Control Board, 92 N. H. 
199, the court passed upon a State order pursuant to a Federal order 
requiring every-other-day delivery by "any means or device whatever." 
This order was adopted for the purpose of preserving rubber and gaso- 
line while the country was at war. The court's decision enforced the 
order in so far as it pertained to the delivery of milk by vehicles using 
rubber tires or gasoline, because of the necessity of these commodities 
for the prosecution of the war. As to all other methods of delivery, the 
court held that the prevention of daily deliveries created an inroad upon 
individual rights, and that the balance of private over public interest 
was too overwhelming to permit a ban on such daily deliveries. 

Questions (2) and (3) are not answered or discussed, since they are 
predicated on question (1) being answered in the affirmative. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Metropolitan District Commission — Permit to Oivner of Land Abutting on 
a Way for a Driveway — Roads — Parkways — Boulevards. 

Oct. 5, 1945. 
Metropolitan District Commission. 

Gentlemen: — You have asked my opinion as to whether or not your 
commission is required to issue a permit to an abutting owner of land 
for the construction of an opening or driveway leading directly from said 
land to the Veterans of Foreign Wars Parkway. 

The answer to this question seems to depend on whether or not the 
Veterans of Foreign Wars Parkway is a road within the jurisdiction of 
your commission by the provisions of G. L. (Ter. Ed.) c. 92, § 33, or by 
virtue of section 35 of said chapter. 

G. L. (Ter. Ed.) c. 92, § 33, provides in part: 

"The commission may acquire, maintain and make available to the 
Inhabitants of . . . open spaces for exercise and recreation, in this chap- 
ter called reservations; and, for the purposes set forth in this section, 
the jurisdiction and powers of the commission shall extend to, and be 
exercised in, said district. . . ." 

G. L. (Ter. Ed.) c. 92, § 35, provides: 

"The commission may connect any way, park or other public open 
space with any part of the towns of the metropolitan parks district under 
its jurisdiction by suitable roadways or boulevards, in this chapter called 
boulevards, and for this purpose exercise any of the rights and powers 
granted the commission in respect to reservations, and may construct and 
maintain along, across, upon or over lands acquired for such boulevards 
or for reservations, a suitable roadway or boulevard. The commission 
shall have the same rights and powers over and in regard to said boule- 



P.D. 12. 51 

vards as are or may be vested in it in regard to reservations and shall 
also have such rights and powers in regard to the same as, in general, 
counties, cities and towns have over public ways imder their control." 

It seems clear from these sections that two classes of roads may be 
constructed bj' your commission. Such roads as are constructed l^y your 
commission under section 33 may be reasonably classified as not being 
public ways and, in the absence of an easement by deed or reservation, 
the abutting owner will not have any right of way from his land to such 
road. CmBto v. Metropolitan Park Commissioners, 232 Mass. 389. 

In Burke v. Metropolitan District Commission, 262 ]\fass. 70, 80, the 
court stated : 

"The commissioners are within their rights if they take reasonable 
measures to promote the safety of travellers upon the parkways in their 
charge, and to that end to prevent entrances thereto and exits therefrom 
which will tend to interrupt or endanger traffic so far as this legally may 
be done. Thej^ are not acting in excess of their authority if, for reasons 
having relation to the public safety and convenience, they are opposed to 
the establishment of filling stations with driveways to and from them 
from parkways because of the tendency of openings from such stations 
to create a special menace to the safety of travellers upon the parkway. 
They reasonably may consider such matters in their efforts to solve the 
problem of traffic control on congested parkways." 

It is to be noted, however, that the Veterans of Foreign Wars Park- 
way was not constructed by your commission, but by the Public Works 
Department pursuant to the provisions of St. 1930, c. 420, § 4, and turned 
over to your commission pursuant to section 18 of said chapter. Only 
Ijy implication then can this road be said to come under your jurisdic- 
tion pursuant to section 33 of chapter 92, the language used in this sec- 
tion being "The commission may acquire, maintain and make avail- 
able . . ." 

It cannot be definitel}^ said, therefore, that the Veterans of Foreign 
Wars Parkway is a road coming within the provisions of section 33, even 
though it may be so contended b}'- your commission. It is doubtful what 
the Supreme Judicial Court would" decide in these circumstances. A 
study and search of the decided cases does not reveal any exactly in 
point. 

The second class of roads under the jiuisdiction of your commission is 
provided for by G. L. (Ter. Ed.) c. 92, <j 35. The power of regulation by 
your connnission of both classes of roads is provided for by section 37 of 
chapter 92, where the commission is given authoiit}^ "to make rules and 
regulations for the government and use of reservations or boulevards 
under its care." The roads provided for by section 35 of chapter 92 are 
commonly called "boulevards." 

In an opinion on this subject, dated September 19, 1923, this department 
advised your commission : 

"As to these boulevards the Commission is given the same powers 
which it has in regard to reservations, and additional powers such as those 
exercised by other public bodies over public ways. These boulevards 
constructed under section 35 are public ways. Whitney v. Commonwealth, 
190 Mass. 531. 



52 P.D. 12. 

It is a settled principle of our law that abutting owners have a right 
of way for reasonable needs from their lands to the public way adjoining. 
The abutting owner's right of access to and from the public way is as 
much his property as his right to the soil within his boundary lines. With 
regard, therefore, to owners of land abutting on the roads called 'boule- 
vards,' made under section 35, your Commission has not the power to 
prevent the construction by the abutting landowners of ways leading 
from their land to such boulevards. If at any time easements granting 
such right of connection with the highway to the owners of abutting 
lands have been given by easements in deeds from the Commonwealth, 
the rights of the abutting owners are additionally confirmed thereby. 

Although the Commission has not the power to prohibit the exercise 
by the abutting owner of his right of access to and from a public way 
constructed under section 35, yet it has the power to regulate the manner 
in which he shall use his right of access." 

It follows from what is stated above that your commission has power 
to prohibit the construction by an abutting owner of a private way con- 
necting with such roads as come within the provisions of said section 33, 
provided there is not an easement or reservation of right exercisable by 
such abutting owner by deed. 

Your commission has not the right to prohibit the construction of a 
private way reasonably necessary for access to the land of an abutting 
owner connecting with a boulevard or road within the provisions of section 
35. In the absence of a right of free access to a reservation, roadway or 
boulevard held by deed by the abutting owner, the commission by its 
reasonable rules and regulations may regulate the location and size of the 
private way that is to connect the abutting land. 

In Gleason v. Metropolitan District Coynmission, 270 Mass. 377, 380, 
the court said: 

"The taking in the case at bar was not made for park or reservation 
pvu-poses or for both park and boulevard purposes. The effect of such a 
taking is not before us. The taking in the case at bar was made under an 
authorit}^ enabling the public board to construct roadways and boulevards. 
Whatever may be said as to distinctions between ordinary streets, roads 
and highways, on the one side, and parkways and boulevards constructed 
within public parks and reservations, on the other side, in the present 
case the boulevard was for purposes of public travel. It was established 
as a public way. Other powers over it by the respondent are incidental to 
that dominating purpose. That result follows from the terms of the 
statutes under which the taking was made. A taking of land for purposes 
of public travel or as a public way, in the absence of special restrictions 
and limitations, imports that abutters thei'eon have reasonable right of 
access thereto." 

St. 1930, c. 420, § 4, authorizing the construction of the Veterans of 
Foreign Wars Parkway, provides that "The department is hereby fur- 
ther directed to lay out and construct a parkwav or boulevard beginning 
at . . /' 

Section 18 of the same chapter, authorizing the transfer to the Metro- 
politan District Commission, provides: 

"When the work authorized under sections four and five shall ha^•e 
been completed, the overpass or underpass with approaches thereto and 
the parkways and or boulevards authorized therein shall be transferred 



P.D. 12. 53 

to the control of the metropolitan district commission and shall be kept 
in good condition and repair by said commission." 

You will note that the work authorized is described in both sections as 
a "parkway or boulevard." 

Very trul}- yours, 

Clarence A. Barxes, Attorney General. 

Retirement — Teachers — Veterans — Payments for Military Service Credit. 

Oct. 9, 1945. 
Teachers' Retirement Board. 

Dear Sirs: — In a recent letter, in connection with your duties in pre- 
paring a budget for the fiscal year 1947, in which you state that you are 
presently engaged, you have asked my opinion as to the effect of the new 
Contributory Retirement Law (St. 1945, c. 658), which does not go into 
effect until January, 1946, upon payments to the special fund for military 
service credit provided for in paragraph (4) of section 22 of said chapter 658. 

Your question reads : 

"Will it hereafter be the obligation of the Commonwealth to appropriate 
for persons in military service the assessments which such persons would 
have paid had they remained in the public school service and if so, from 
what date does this obhgation begin?" 

In an opinion of one of my predecessors in office to the Commissioner of 
Corporations and Taxation on November 30, 1943, to which you refer in 
your letter and in which I concur, it was held that the provisions of St. 1941, 
c. 708, §§ 9 and 9A, read together expressed a legislative intent that the 
required paj^ments to the funds of the retirement system on behalf of 
members on leave of absence should be made by the cities and towns in 
whose service thej'' were employed. 

The provisions of the new Contributory Retirement Law dealing with 
the funds for military service (St. 1945, c. 658, § 22 (4) and (7) (b), have 
not changed the law in this respect, and such payments are still to be 
made by cities and towns after January 1, 1946. 

A single exception, however, has been made by the last Legislatiu'e to 
the requirement of such payments by cities and towns. St. 1945, c. 699, 
provides in effect that when a member of the Teachers' Retirement Asso- 
ciation upon the termination of military or naval service returns to his 
employment as a teacher, but accepts such employment in another school 
department than that in which he had worked before his military or naval 
service, "any difference between the amount contributed to the annuity 
fund of the teachers' retirement system by the city or town by which he 
was formerly employed," as provided by said St. 1941, c. 708, §§ 9 and 9A, 
"and the total amount of contributions to said annuity fund to which 
such member is entitled thereunder shall be paid into said fund by the 
commonwealth." 

The necessity for providing ]jroperIy for the payments to be made both 
by a municipality and by the Commonwealth in cases of the particular 
type of returned teaclier described in said chapter 699 should be borne in 
mind in preparing the budget referred to in your letter. 

Very truly yours, 

Clarence A. Barnes, Attorney General.. 



54 P.D. 12. 

Veteran ■ — Retirement — Amount of Pension. 

Oct. 9, 1945. 

Hon. Thomas H. Buckley, Chairman, Commission on Administration and 

Finance. 

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

"A request has been received for retirement from Dr. Douglas A. Thom, 
part-time Senior Psychiatrist in the Department of Mental Health. We 
have recommended a retirement rate of $250 a year, being one-half of his 
basic salary of $500 for part-time services. 

The Department of Mental Health has questioned this allowance and 
believes that Dr. Thom is entitled to one-half of the highest regular rate 
of compensation paid him in the same position, of $1500 a year. 

They state that he worked the entire period of time on temporary ap- 
pointments in the grade of Senior Psychiatrist and refer to St. 1943, c. 514. 

In view of the fact that this seems to be the first request made by a 
part-time employee, we are wondering whether or not he should be retired 
under the highest rate under the act or the rate at the time of his re- 
tirement. 

Other qualifications for retirement are in keeping with the provisions of 
St. 1943, c. 514." 

In your communication you do not inform me of the status of said Thom 
as regards retirement nor of the statutory provisions under which it is 
proposed to retire him. I assume, however, from a reference to St. 1943, 
c. 514, in said communication, that said Thom is a veteran and is to be 
retired under the provisions of G. L. (Ter. Ed.) c. 32, § 56 or § 57 or § 58, 
as amended. 

Although it is not plain from the statements in your communication, 
I assume, from what has been written, that said Thom was appointed to 
the position of "part-time senior psychiatrist" in the service of the Com- 
monwealth; that the salary of such position is $500 a year and that such 
sum of $500 was "the highest regular rate of compensation" payable to 
him at any time during his occupancy of said position as "part-time 
senior psychiatrist." I also assume from the phraseology- of 3'our com- 
munication, although it is not stated clearly therein, that for a period 
during the time of Dr. Thom's emplojmient in the service of the Common- 
wealth, he ceased to hold the position of "part-time senior psychiatrist" 
and by a series of temporary appointments held the position of "senior 
psychiatrist," which is a different position from that of "part-time senior 
psychiatrist"; that the highest regular rate of compensation which at- 
taches to the position of "senior psychiatrist" is $1,500 a year, and this 
Dr. Thom received while occupying the last-named position, but that 
later he returned to the position of "part-time senior psychiatrist" and 
will be occupying the same at the time of retirement. 

In all of sections 56, 57 and 58 of said chapter 32, as amended, it is 
provided that a veteran upon retirement shall receive a pension which is 
to amount to "one half of the highest rate of compensation . . . payable 
to him while he was holding the grade held by him at his retirement. ..." 

I am of the opinion that the word "grade" as employed by the Legisla- 
ture in said sections of chapter 32 has the same meaning as the words 
"position of like character" and that a "part-time" position is not of like 



r.D. 12. 55 

character with a full-time position, even it" the latter is held on a temporary 
basis, so that the position of "senior psychiatrist" is not in the same 
"grade" as that of "part-time senior psychiatrist." It follows that at 
the time of Dr. Thorn's proposed retirement he will be holding the position 
or grade of a "part-time senior psychiatrist" and that the "highest rate 
of compensation" which has been "payable to hhii while he was holding 
such grade" was $500. The S1500 annual compensation which was paid 
to him was payable not while he was holding "the grade held by hnn at 
his retirement", but while he was previously holding the higher position 
or grade of "senior psychiatrist." 

L'pon the assumptions of fact drawn from such factual statements as 
appear in your communication, I am, accordingly, of the opinion that your 
recommendation of the retirement rate for Dr. Thom set forth in the first 
paragraph of said communication is correct. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veteran — Return to Service of Commonwealth — Vacation Pay. 

Oct. 9, 1945. 

Hon. Thomas H. Buckley, Chairman, Commission on Administration and 

Finance. 

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

"A request has been received from a former employee of the State as to 
his rights to benefits under St. 1945, c. 411. He entered the armed forces 
on January 23, 1942, while employed by the Commonwealth and then 
was retired by the Navy due to disability received in line of duty. 

On May 1, 1943, he returned to his former position in the State service, 
from which he was retired on September 1, 1943, due to his inability to 
continue his work on account of the disability. 

He now inquires as to his right to receive payment in lieu of vacation. 
It is the belief of the Commission and the Director of Personnel that the 
intent of the Legislature was that the benefit of St. 1945, c. 411, be granted 
only in the case of an employee who was to return and continue his em- 
ployment with the Commonwealth. 

Kindly advise me as to your opinion on the application of the Act." 

St. 1945, c. 411, reads: 

■"An Act providing for payments, in lieu of vacations, in the case 
OF certain employees of the commonwealth who have been 
granted leaves of absence to enter the armed forces of the 
united states durinc; the present war. 

Be it enacted, etc., as follows: 

Any person in the service of the commonwealth who, prior to April 
thirtieth, nineteen hundred and forty-three, resigned or was granted a 
leave of absence from the service of the commonwealth to enter the armed 
forces of the United States during the present war and who, upon honor- 
able discharge from such service in said armed forces, has returned or 
returns to the service of the commonwealth, shall be paid an amount equal 
to the vacation pay which he would have received in the year of his entry 



56 P.D. 12. 

into such service in said armed forces if his employment in the service of 
the commonwealth had not been interrupted by such service in said 
armed forces; provided, that no monetary or other allowance has already 
been made therefor." 

Said chapter 411 provides for payment of an amount equal to the vaca- 
tion pay which certain veterans would have received from the Common- 
wealth in the year of their i-espective entries into the armed forces of the 
United States if their services to the Commonwealth had not been in- 
terrupted by such entries. 

The chapter provides that such a payment is to be made to a veteran, 
who, after honorable discharge from the armed forces, "has returned or 
returns to the service of the commonwealth.^^ The chapter contains no phrase 
to the effect that a continuation in the employment of the Commonwealth's 
service after a veteran has returned to it is a condition of receiving such 
payment, nor is there phraseology in the chapter which could create such 
a condition by implication. 

You have stated that the veteran whose inquiry is under consideration 
returned to his former position on May 1, 1943, and he appears to have 
continued there until September 1, 1943. He appears not only to have 
returned but to have continued in the employment of the Commonwealth 
after such return. 

Such veteran is entitled to the benefits provided by St. 1945, c. 411. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Insurance — Group Life Policy — Foreign Contract. 

Oct. 15, 1945. 

Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir : — In a recent communication you have advised me that 
certain Massachusetts organizations, members of the National Health and 
Welfare Retirement Association, Inc., a non-profit corporation licensed 
under the laws of the State of New York and authorized under section 200 
of the Insurance Law of that State to issue a group annuity and life con- 
tract to an association of employers as the master holder of the contract, 
"propose to arrange for group life and group annuity coverage for their 
employees" under the following plan: 

"Each community chest or social agency council or health or welfare 
agency will collect contributions from the contributing members and trans- 
mit them to the Retirement Association. When seventy-five per cent of 
the eligible employees have made application to become participants, 
salary deductions are to be made by the contributing members. All indi- 
viduals newly employed by a contributing member after its entrance date 
must become participants and agree that their employers shall deduct 
contributions from their compensation payments. The monthly contribu- 
tion of each employee is to be five per cent of his regular compensation and 
the employer contributes an amount equal to the contributions made by 
each employee and the employer makes an additional contribution over a 
period of years for the purpose of purchasing annuity benefits for em- 
ployees who were in his service previous to the adoption of the Plan." 



r.D. 12. 57 

A death benefit, in addition to the retirement annuity is also inckided in 
the phm and the poHcies and annuiti'^s are, I assume from the general 
context of your communication, to be purchased and issued in New York. 

As you state in your communication, our Massachusetts insurance law 
does not authorize the issuance of a group life insurance policy or a group 
annuity contract which covers the employees of several individual em- 
ployers as a group. 

In your communication you direct attention to certain of the defini- 
tions contained in G. L. (Ter. Ed.) c. 175, § 1, and to sections 3 and 160 
of said chapter, which you have set forth, and you have asked my opinion 
upon the two following questions with relation to the adoption of the 
said plan: 

"In view of the definitions of the words 'company' and 'foreign com- 
pany' appearing in G. L. c. 175, § 1, and the prohibition contained in 
section 3 of G. L. c. 175, and the language of section 160 of G. L. c. 175, 
does the adoption of this Plan by charitable, health or welfare organiza- 
tions located in ^Massachusetts whose employees are Massachusetts resi- 
dents and the making of deductions from the salaries of the Massachu- 
setts employees of member organizations for the purpose of paying pre- 
miums constitute a violation of the Massachusetts Insurance Law? 

The Plan states that a certificate, setting forth the employee's contract, 
will be delivered to each employee in Massachusetts insured under the 
Plan. Does the delivery of such a certificate to each employee in Massa- 
chusetts constitute a violation of the Massachusetts Law?" ' 

I answer each of these questions in the negative. 

The plan outlined in your commimication, to be cariied out for the 
benefit of employers and emploj^ees, is such that the principles of law 
stated in an opinion of May 27, 1937, to the then Conmiissioner of Insur- 
ance b}" one of my predecessors in office, with which I concur, with rela- 
tion to the purchase by Harvard University of deferred annuity contracts 
from a New York insurance company for its employees, are applicable to 
it and compel the conclusion that the adoption of the said plan and the 
making of deductions from the salaries of the Massachusetts employees 
of member organizations for the purpose of paying premiums under the 
circumstances set forth in your communication do not constitute a vio- 
lation of the insurance laws of the Commonwealth. The mere delivery of a 
certificate, such as you have described, to each employee in Massachusetts 
insured under the plan, does not, under all the factual circumstances of 
the plan which you have stated, constitute a violation of Massachusetts 
law. 

A third question which you have propounded in your communication, 
relative to the appropriate jurisdiction for possible suits by employees 
to enforce, after rcinsui-ance by a domestic life company, "conversion 
j)rivileges" "available under the life insurance feature of the plan," is 
pui'ely hypothetical in character, relates to possible courses of legal pro- 
cedure open to employees in causes which might accrue to them, and is 
not one upon which the Attorney General may properly be required to 
render an opinion. 

Very truly yours, 

Clarencp: a. Barxes, Attorney General. 



58 P.D. 12. 

Veteran — Bonus — Honorable and Dishonorahle Discharge. 

Oct. 16, 1945. 

Hon. John E. Hurley, Treasurer and Receiver General. 

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

"I respectfully request a formal opinion from your office relative to 
the proper interpretation of the word 'dishonorable' as it appears in St. 
1945, c. 731, § 1. 

Said section sets forth as one of the requirements for eligibilit}' that the 
veteran 'shall have received a discharge or release, other than a dishonor- 
able one . . .' 

Kindly advise as to whether the said word ' dishonorable ' is to be con- 
strued as meaning 'other than honorable' or 'dishonorable' in the sense 
indicated by the War, Navy and Marine Departments when issuing a 
type of discharge classified as 'dishonorable'." 

The Attorney General does not customarily make interpretations of 
statutes unless an interpretation is necessary in order to render an opinion 
upon a question of law relative to the performance of some duty presently 
required of an officer of the Commonwealth. 

For your guidance, however, in connection with the payment of the 
bonus to veterans under St. 1945, c. 731, let me say that the Legislature 
has provided in said chapter 731, section 1, that there shall be paid out 
of the treasury 

"to each person who shall have served in the armed forces of the United 
States on or after September sixteenth, nineteen hundred and forty and 
prior to the termination of the present war . . . and shall have received 
a discharge or release, other than a dishonorable one, from such service, 
the sum of one hundred dollars . . ." 

The Legislature has not provided that the bonus, so called, shall be 
paid only to veterans who have received an "honorable discharge." On 
the contrary, it has stated specifically that it shall be paid to such of the 
designated veterans who have received a discharge or release which is not 
a dishonorable one. 

I am informed that the armed forces of the L^nited States issue dis- 
charges or releases which are termed by them "honorable discharges"; 
that they also issue discharges which are termed "dishonorable discharges," 
and that, at least in the case of the army, a discharge termed "dishonor- 
able" is issued only as a result of the finding of a court martial adverse 
to a soldier. I am also informed that in addition to the "honorable dis- 
charge" and the "dishonorable discharge" the armed forces issue other 
forms of discharges and releases which bear other names, and some of 
which indicate that they have been given for reasons which do not reflect 
credit upon the one to whom given. 

The Legislature has, however, made no specific mention of discharges 
or releases of the t\iDe last mentioned. It has specifically stated the sum 
of one hundred dollars is to be paid to the veteran of the designated type 
who has received a discharge or release "other than a dishonorable one.'" 
A discharge or release "other than a dishonorable one" would appear to 
include any discharge or release except a dishonorable one and to embrace 
within the meaning of the quoted phrase not only those termed "honor- 



P.D. 12. 59 

able," but those ha\'ing some other name given to them so long as they 
were not denominated by the armed forces specifically as "dishonorable." 
It would not api^ear, from the phraseology of said chapter 731, section 1, 
to have been the intent of the Legislature to impose upon you the duty of 
examining the various causes of cUscharge or release set forth in the tjq^e 
of "discharge" or "release" which is not termed by the armed forces 
either "honorable" or "dishonorable" and then attempting to determine 
whether such causes were of such a nature that the discharge or release 
might be thought to be honorable or dishonorable. 

In other words, unless a veteran's discharge or release is one termed 
"dishonorable" by the armed forces, he will be entitled to the bonus if 
he is otherwise qualified lUider said chapter 731. 

^'ery truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Teachers — Credit for Out-of-State Service. 

Oct. 18, 1945. 

Hon. Julius E. Warren, Chairjnan, Teachers' Retirement Board. 

Dear Sir: — With relation to G. L. (Ter. Ed.) c. 32, as amended 
through the insertion by St. 1945, c. 658, § 1, of section 3 (4) "Credit for 
Teachers for Out-of-State Service," you have asked my opinion upon the 
following question : 

"As the Teachers' Retirement System was not in effect prior to July 1, 
1914, can credit be allowed for services rendered in the public day schools 
of other States prior to said date without the payment of assessments and, 
if so, is it only necessary that the service be verified?" 

Said section 3 (4) reads : 

"Any member of the teachers' retirement system who had rendered 
service as a teacher in the public day schools of any other state for any 
previous period, may, either before January first, nineteen himdred and 
fifty-one, or within five years after becoming a member or being rein- 
stated as such, and before the date any retirement allowance becomes 
effective for him, pay into the annuity savings fimd of the system in one 
sum, or in instalments, upon such terms and conditions as the board may 
prescribe, an amount equal to that which would have been withheld as 
regular deductions from his regular compensation for such previous period 
or most recent portion thereof as he may elect, in no event aggregating 
more than ten years, had such service been rendered in a public school of 
the commonwealth. In addition to the payment of such sum or instal- 
ments thereof, such member shall also pay into the annuity savings fvmd 
an amoimt of interest such that at the completion of such payments the 
value of his accumulated payments, together with regular interest thereon, 
actually made on accoimt of such previous out-of-state service shall eciual 
the value of his accumulated regular deductions which would have re- 
sulted if regular deductions had been made when regidar compensation 
for such service was actually received. Upon the completion of such 
payments such member shall receive the same credit for such period of 
his previous out-of-state service or portion thereof elected as would have 
been allowed if such service had been rendered by him in a public school 



GO P.D. 12. 

of the commonwealth. Such member shall furnish the board with such 
information as it shall require to determine the amount to be paid and the 
credit to be allowed under this subdivision." 

Under this section a teacher may receive credit for foreign service only 
by paying into the funds of the system "an amount equal to that which 
would have been withheld as regular deductions from his regular compensa- 
tion for such previous period or most recent portion thereof as he may 
elect . . . had such service been rendered in a public school of the com- 
monwealth." 

Inasmuch as the Teachers' Retirement System was not established in 
effect until July 1, 1914 (St. 1913, c. 832) no amount would have been 
deducted from a teacher's regidar compensation for service in a public 
school of the Commonwealth prior to July 1, 1914. It follows that under 
the terms of said section 3 (4) a teacher who had foreign service before 
July 1, 1914, can not comply with the condition set forth in said section 3 
(4) as a prerequisite to the obtaining of credit for foreign service by pay- 
ing in "an amount equal to that which would have been withheld . . . 
had such service been rendered in a public school of the commonwealth" 
before July 1, 1914. Accordingly, a teacher may not receive credit in the 
Teachers' Retirement System for service in the public day schools of the 
States rendered prior to July 1, 1914. Verification alone of foreign service 
without the requisite payments is not sufficient to entitle to credit. 

The answer which I have given to your first question makes it necessary 
to state in answer to your second question that the vote which you de- 
scribe in your communication, authorizing the giving of credit for foreign 
service prior to July 1, 1914, would not be a proper one for the Teachers' 
Retirement Board to pass. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Agency for Raising Money for Betterment of Social and Economic Condi- 
tions — Duty of Commissioner of Public Welfare. 

Oct. 19, 1945. 

Hon. Patrick A. Tompkins, Commissioner of Public Welfare. 

Dear Sir: — You have advised me in a recent communication that 
you have been asked to approve Lee Post No. 157 of the American Legion 
as a committee or agency "formed for the purpose of raising money to 
be used for the betterment of social or economic conditions" in such town 
under the provisions of G. L. (Ter. Ed.) c. 168, {j 57, as last amended by 
St. 1945, c. 61. 

You have written me further in such communication as follows : 

"I am of the opinion that the Lee Post is comprised of competent and 
reliable people whom as individuals I could approve in writing but I am 
in great doubt as to whether or not the Post itself is a relief agency or 
committee formed for the purpose of raising money to be used for the 
betterment of social and economic conditions in the community. 

I would like to have the opinion of the Attorney General as to whether 
or not I should approve the application of the Post on the latter ground." 



P.D. 12. til 

Said section 57, as so aiueiuled, provides that a savings or a co-opera- 
tive bank may contribute 

''to any general fund being raised by a relief conunittee or agency ap- 
proved by the commissioner of iml^lic welfare as evidenced by a writing 
filed in his office, and formed for the i)uri)Ose of raising money to be used 
for the betterment of social and economic condifion.s in the community 
where such corporation is established ..." 

The Legislature has not recjuired that you should give s])e(nfic approval 
to the particular purpose for whicli a relief committee or agency is raising 
funds. It has authorized the corjoorations referred to in said section 57 
to contribute only to an approved committee or agency "formed for the 
purpose of raising money to be used for the betterment of social and eco- 
nomic conditions in the coimnunity where such corporation is established." 

If in any given instance you are appraised of such circumstances as 
lead you to find as a matter of fact that the purpose for which a committee 
or agency was formed was not that of raising money to be used for the 
betterment of social and economic conditions, you will he justified in the 
exercise of your discretion in withholding approval of such committee or 
agency. However, you are not required by the statute, if you approve a 
relief committee or agency as such, to conduct an investigation to deter- 
mine the precise nature of the use to which raised funds will be applied, 
nor does your approval of the committee or agency raise any presumption 
that the use of the raised money is to be "for the betterment of social 
and economic conditions" in any community. See opinion of the Attor- 
ney General to the Commissioner of Public Welfare, December 4, 1942. 

Whether or not the said Lee Post is, under all the surrounding circum- 
stances of its present undertaking, a relief committee or agency formed 
for the purpose of raising money to be used for the betterment of social 
and economic conditions is, as I have indicated, a question of fact, and 
as such it is one to be determined by you. The Attorney General does 
not pass upon questions of fact. 

Very truly yours, 

Clarp:nce a. Barnes, Attorney General. 



Foster Homes for Infants — Commis.noner of Veterans' Services. 

Oct. 23, 1945. 

Hon. Patrick A. Tompkins, Commissioner of Public Welfare. 

Dear Sir: — I am in receipt of your letter of October 16th. 

There does not appear to be any principle of law which would relieve 
the Commissioner of Veterans' Services from complying with the require- 
ments of G. L. (Ter. Ed.) c. 119, § 6, when placing in a foster home an 
infant under fourteen years not related to the person receiving it. Like- 
wise, the foster parents of such an infant so placed are subject to the 
provisions of G. L. (Ter. Ed.) c. 119, §§ 1-7, if they have in their custody 
at one time two or more infants of the type and for the purposes set forth 
in said section 1. 

Very truly yours, 

Clarence A. Barnes, Attorney (ieneral. 



62 p.D. 12. 

Port of Boston Authority — Plans — Contracts — Costs. 

Oct. 24, 1945. 
Port of Boston Authority. 

Dear Sirs : — You have asked my opinion upon several questions 
relative to the proposed acquisition by the Authority of the Mystic Wharves 
and the construction thereon of a new pier. 

The power to acquire this particular property and to construct a new 
pier thereon was specifically vested in the Department of Public Works 
by St. 1941, c. 714, "for the purpose of improving the pier facilities in the 
port of Boston." By section 21 of said chapter 714 the said department 
was empowered to request of and have issued b}^ the State Treasurer 
bonds aggregating $4,700,000 to meet the expenditures incurred in carry- 
ing out the powers conferred by said chapter 714. 

In 1945 the Legislature enacted chapter 619, which established your 
board and gave it certain powers, and inserted a new chapter, 91 A, in the 
General Laws, which new chapter vested your board with certain other 
powers of a general nature for the administration of the port, the acquisi- 
tion of property, the construction of piers and other facilities for the port 
and authorized a bond issue of $15,000,000 

"for the purpose of purchasing sites and pier locations and the construc- 
tion thereon of pier facilities under authority of chapter ninety-one A of 
the General Laws inserted therein by section three of this act. ..." 

Said chapter 91 A, in view of the prior existence of said St. 1941, c. 714, 
cannot be construed as granting to your board under its general powers 
authority to acquire or deal with the Mystic Wharves, which authority 
had previously been specifically vested by said chapter 714 in the Depart- 
ment of Public Works. 

The General Court, however, by the provisions of section 5 of said 
chapter 619, conferred upon your board: 

"All the rights, powers and duties on the effective date of this act per- 
taining to the department of public works in respect to lands, rights in 
lands, flats, shores, waters and rights belonging to the commonwealth in 
tidewaters and in lands under water, within the port of Boston . . . and 
any other rights and powers heretofore vested by the laws of the common- 
wealth in the department of public works in respect to the port of Boston 
not heretofore in this act expressly vested in or imposed upon the Port of 
Boston Authority . . . are hereb}^ transferred to and hereafter shall be 
vested in and exercised by the Authority. There is also transferred to 
and vested in the Authority the right to request the raising of funds under 
the provisions of chapter seven hundred and fourteen of the acts of nine- 
teen hundred and forty-one and to expend the same." 

Such funds, as has been previously stated, were by the terms of said 
chapter 714 to amount in the aggregate to $4,700,000. 
Your first question reads: 

"1. If the Authority believes that it is in the public interest that it 
acquire Mystic Wharves and construct thereon a pier, 

(a) has it, by virtue of the provisions of section 5 of said chapter 619, 



P.D. 12. 63 

all the powers in this regard formerly vested in the Department of Public 
Works by St. 1941, c. 714, and 

(6) if it has such powers, is it restricted in the exercise thereof by the 
conditions and limitations contained in said chapter 714?" 

I answer both the queries contained in this question in the affirmative. 
Your second question reads: 

"Has the Authority, by virtue of the provisions of G. L. c. 91 A, § 3, 
as amended b}' section 3 of said chapter 619, and by virtue of the provi- 
sions of section 10 of said chapter 619, power to acquire the Mystic Wharves 
property and to construct a pier thereon subject to such limitations as 
may be imposed by said sections but without regard to the limitations 
and conditions imposed by St. 1941, c. 714?" 

I answer this question in the negative. 
Your third question is divided into three parts. 
The first of these reads : 

"If the Authority believes that it is in the public interest that it acquire 
Mystic Wharves and construct thereon a pier — 

(a) May it, prior to entering into a contract for a lease of the land and 
pier, retain, at cost to the Commonwealth, the services of an engineering 
firm to draw the detailed plans of the pier?" 

I answer this query to the effect that the authority vested in the De- 
partment of Public Works by said St. 1941, c. 714, § 1, with relation to 
the acquisition of the Mystic Wharves and construction of a pier thereon 
and its lease, which authority was transferred to your board by said 
St. 1945, c. 619, § 5, is broad enough to impliedly authorize the employ- 
ment of an engineering firm to draw detailed plans of the pier to be leased. 

The second part of this third question reads: 

" (b) May it, if a contract for a lease of the land and pier is executed, 
enter into a contract for the construction of the pier if the contract price 
for such construction, added to the cost of acquisition of the land, will, 
in the aggregate, exceed $4,700,000, charging such cost so far as possible 
to the loan appropriation contained in St. 1941, c. 714 and the balance of 
such to the loan appropriation contained in section 10 of chapter 619 of 
the Acts of 1945 or chargmg such cost wholly to the latter loan appro- 
priation?" 

I answer this question in the negative. 

St. 1945, c. 619, § 10, provides with relation to the appropriation and 
bond issue authorized therein : 

"Subject to the conditions herein imposed, for the purpose of purchas- 
ing sites and pier locations and the construction thereon of pier facihties 
under authority of chapter ninety-one A of the General Laws, inserted therein 
by section three of this act, the state treasurer shall . . . issue and sell 
. . . bonds of the commonwealth . . . not exceeding, in the aggregate, 
the sum of fifteen million dollars ..." 

As has been indicated, acquisition of and construction on the Mystic 
Wharves is not made '^ under authority of chapter ninety-one A of the 
General Laws" but under authority of St. 1945, c. 619, § 5. Conse- 
quently, the costs of such acquisition and construction may not exceed 
$4,700,000 and may be charged only against the "loan appropriation" 
of that amount provided for in St. 1941, c. 714, and neither the whole 



64 P.D. 12. 

nor any part of such costs may be charged to the "loan appropriation" 
of not more than $15,000,000 provided for in St. 1945, c. 619, § 10. 
The third part of said question reads: 

" (c) j\Iay it enter into a contract for a lease of the land and pier should 
the reasonably estimated cost of the project exceed $4,700,000 if the lease 
contains a covenant by the lessor to construct the pier or a right of can- 
cellation if the pier is not constructed?" 

The phraseology of this question is such, since the hypothetical facts 
upon which it appears to be predicated cannot be plainly apprehended, 
that it may not properly be answered. 

Your fourth question reads : 

"Has the Authority, by virtue of the provisions of G. L. c. 91 A, § 3. 
as amended by St. 1945, c. 619, § 3, power to prepare plans for the con- 
struction of new facilities and to charge the cost thereof to the loan appro- 
priation contained in section 10 of said chapter 619 and, if not, out of 
what funds may such costs be met?" 

The last sentence of the first paragraph of G. L. c. 91A, § 3, as inserted 
by St. 1945, c. 619, § 3, provides: 

"The Authority shall prepare plans and estimates of the cost of acquir- 
ing needed pier facilities and of the construction of such new facihties as 
it shall determine to be necessary . . ." 

There would appear to be implied authority under the provisions of 
said G. L. c. 91A, v) 3, and of said St. 1945, c. 619, § 10, for the preparation 
of plans for the construction of new facilities and the charging of the cost 
thereof against the "loan appropriation" provided by said section 10. 
However, the cost of plans with relation to construction of new facilities 
in connection with the Mystic Wharv6s may not be charged against the 
"loan appropriation" not exceeding $15,000,000 established by said sec- 
tion 10 of chapter 619, but must be charged against the "loan appropria- 
tion" of $4,700,000 made available to your board by the terms of said 
St. 1941, e. 714, and St. 1945, c. 619, § 5. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Metropolitan District Water Supply Commission — Authority to use Sur- 
plus Money. 

Oct. 25, 1945. 
Metropolitan District Water Supply Commission. 

Gentlemen : — In a recent communication you have requested my 
opinion on the utilizing of certain sums of money amounting to approxi- 
mately $1,200,000 and now in the State treasury, received from rentals, 
sales of buildings and sales of standing timber by your commission, as 
authorized by St. 1927, c. 321, '.^ 19, which act was for further construc- 
tion of certain projects in addition to those authorized and directed by 
St. 1926, c. 375. 

Your commission was created by St. 1926, c. 375, § 1. Section 8 of that 
act provides as follows: 

"For the purpose of carrying out the provisions of this act, the commis- 
sion may expend such amounts, not exceeding in the aggregate fifteen 



WD. 12. 65 

million tloUars, including the sum required to be paid by the city of 
Worcester under section twelve, as may, from time to time, be approved 
by the governor and council. . . ." 

St. 1927, c. 321, further extended the commission's powers of construc- 
tion in adclitional development, and in section 27 thereof it is provided as 
follows : 

"For the purpose of carrying out the provisions of this act, the com- 
mission may expend such amounts not exceeding in the aggregate fifty 
million dollars, as may from time to time be approved by the governor 
and council. . . ." 

Under the act of 1926 a bond issue of $14,000,000 was authorized. 
Under the act of 1927 a bond issue not exceeding the sum of $50,000,000 
was authorized in addition to the loans authorized by the act of 1926. 

St. 1927, c. Ill, provided for an appropriation for further water supply 
needs to be spent by your commission, and in section 6 thereof provided 
as follows: 

"For the purpose of carrying out the provisions of this act and of in- 
stalling such purification or treatment works in connection with the water 
supply of the district as may be required by or incidental to the diversions 
herein required or authorized, the commission may expend such amounts, 
not exceeding in the aggregate nine hundred thousand dollars, as may from 
time to time be approved by the governor and council, and a sum not 
exceeding said amount is hereby appropriated, to be defrayed from the 
proceeds of bonds ..." 

It is my opinion that the word "aggregate" as used in these acts means 
the total or gross sum which the commission may expend. 

In section 8 of St. 1926, c. 375, it is provided that the amounts neces- 
sary, among other things, for maintaining and operating the works to be 
constructed by the commission shall be added to the annual assessment 
upon the cities and towns comprising the Metropolitan water district and 
collected from them under chapter 92 of the General Laws. Again, in 
section 7 of the same act, the commission is empowered to sell or contract 
for the sale or use of any power or electricity so created, but directs the 
commission to pay the sums of money so received in reduction of the 
charges of maintenance of said works. 

It is believed, therefore, that the use of the word "aggregate " in the three 
acts referred to is purposeful in limiting the expenditure by the commis- 
sion of the three respective amounts of $15,000,000, of $50,000,000, and of 
$900,000 so as to limit, among other things, the assessments upon cities 
and towns for the maintenance and operation of the works constructed. 
The jiroviso that income from the sale or use of power and electricity should 
be applied to reducing the charge of maintenance seems to bear out this 
intention of the Legislature. 

By section 19 of St. 1927, c. 321, the commission was authorized to sell 
at public or private sale, or exchange or lease, any property, real or per- 
sonal, or any easement or water right, including any land in new ceme- 
teries provided for in section 9 of the act, whether taken by eminent do- 
main or otherwise acquired, which in the opinion of the commission is no 
longer needed for the purposes of this act. The same section provides: 

"Any sums of money so received shall be applied by the state treasurer 
to construction costs or to reduce the bonded indebtedness for the works." 



66 P.D. 12. 

It is my understanding that at the present time the commission has not 
expended by several milHons the amount provided under the bond issue, . 
and therefore it could be said that legally this sum of money could be 
applied by your commission to the construction costs. But such applica- 
tion would not, in my opinion, vary the authorization under the various 
acts. When the total sums authorized in these acts, regardless of their 
source, are expended by the commission, the power and authority of the 
commission to use any surplus money over and above the aggregate 
amounts is ended and an act of the Legislature to expend the balance on 
hand would be required. 

Therefore, my answer to your question is in the negative. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Port of Boston Authority — Plans — Contract — Costs. 

Oct. 31, 1945. 
Port of Boston Authority. 

Dear Sirs : — I am in receipt of your letter of October 26th in which 
you ask for a clarification of my opinion to you of October 24th in relation 
to your questions 3 (a) and 4. 

I am of the opinion that your board may not retain at the cost of the 
Commonwealth the services of an engineering firm to draw the detailed 
plans of a pier structure before a written contract providing for the lease 
of the property has been executed. Such action by your board is forbidden 
by the proviso contained in St. 1941, c. 714, § 1, quoted in your letter of 
October 26th. In my answer to your question 3 (a) in my letter of Octo- 
ber 24th, I used the phrase "plans of the pier to be leased," assuming that 
a contract to lease had already been executed. Such assumption appears 
to have resulted from a misapprehension of the scope of your hypothetical 
question. 

With relation to the opinion which I expressed in my letter of October 
24th relative to your fourth question, the tyjoe of plans which your board 
is specifically empowered by St. 1945, c. 619, § 3, to prepare, are "plans 
and estimates of the cost of acquiring needed pier facilities and of the con- 
struction of . . . new facilities" for submission to the Legislature in each 
year for its consideration. 

It is obvious that plans of this type intended by the General Court for 
its annual consideration in respect to possible necessary legislation con- 
cerning the port of Boston are of a different, less expensive, and less de- 
tailed kind than plans drawn expressly for the work of actual construc- 
tion. The preparation of plans of this type is specifically authorized by 
said section 3, and no particular provision for payment of their cost is 
made. It would appear, therefore, as I have indicated in my letter of 
October 24th, that the cost of the preparation of such plans might be 
charged against the "loan appropriation" provided by section 10 of said 
chapter 619. 

Very truly yours, 

Clarence A. Barnes, Attorney General, 



P.D. 12. 67 

Retirement — Veterans — Contributions by Commonwealth. 

Oct. 31, 1945. 

Hon. JoHX E. HuRLE'^', Chairman, State Board of Retirement. 

Dear Sir : — The State Board of Retirement throujih you has asked 
my opinion in a recent letter as to the date which should be used in com- 
puting the amount of contributions to be made by the Commonwealth 
to the funds of the retirement system on behalf of persons returning to 
the Commonwealth's service after a military leave of absence. The letter 
calls my attention to the applicable statutes and states : 

"The question arises as to whether or not the Legislature intended the 
Commonwealth to pay for the contributions of those employees who 
entered into private employment for any period of time subsequent to 
their actual termination of service with the military or naval forces." 

With relation to those persons who have left the employ of the Common- 
wealth for the purpose of serving with the military or naval forces of the 
United States, and are consequently deemed to be on leave of absence 
and may be re-employed before the expiration of one year (or two years 
if such person is under civil service) from the termination of such military 
or naval service (St. 1941, c. 708, §§ 1, 2, as amended), provisions are 
made in St. 1941, c. 708, § 9, with respect to their "creditable service" 
and to the payment by the Commonwealth of the amount of contribu- 
tions to the system which such persons would have made if their service 
with the Commonwealth "had not been interrupted" by their military 
or naval service. Such "creditable service" and such payments are to 
be allowed and made, respectively, when such persons are "reinstated" 
or "re-employed" in the Commonwealth's service. 

The provision in said section 9 as to the time for which "creditable 
service" is to be allowed and the provision in said section 9 with regard 
to the time to be covered by the payments of contributions in behalf of 
the reinstated veteran are not the same. 

With regard to the "creditable service" it is provided in said section 9: 

"Any person referred to in section one shall, when reinstated or re- 
employed . . . have credited to him as creditable service . . . the period 
of his said militanj or naval service.''^ 

So that "creditable service" is to be calculated as of that time only which 
constituted the period of actual military or naval service and does not in- 
clude the further time or period after the end of such actual service while 
the employee was still deemed to be on leave of absence or during which 
he was still entitled to reinstatement. 

With regard to the time to be covered by the contributions payable by 
the Commonwealth, the said section 9 provides: 

"If such person (a person referred to in c. 708, § 1) remained a member 
of any contributory retirement system . . . the commonwealth . . . 
shall at the time of such reinstatement or re-employment, or as soon 
thereafter as an appropriation therefor is made, pay into the annuity 
savings fund of such retirement system the amount which said person 
would have paid into said fund had his employment in the service of the 



68 P.D. 12. 

commonwealth . . . not been interrupted by his said military or naval 
service ..." 

Such a person's employment in the service of the Commonwealth was 
"interrupted" by his entering the mihtary or naval service. As a conse- 
quence of such interruytion the amounts which he would otherwise have 
paid into the funds of the system were not contributed, and it is those 
uncontributed amounts which the Commonwealth is now to pay up on 
behalf of such a person. Contributions, not only for the period when 
such a person was actually in the military or naval service, were unpaid, 
but those during the further time, after the termination of such actual 
service, when reinstatement had not yet occurred, were unpaid. All of 
these, both before termination of actual military or naval duty, and those 
during the period after such termination and before reinstatement, were 
such as would have been paid if the employment in the Commonwealth's 
service of such a person had not been "interrupted" by his military or 
naval service. 

It follows that the Commonwealth is to make good the amount of all 
the contributions which such a person did not pay from the time when 
his employment with the State was "interrupted" by his entry into the 
armed forces until his reinstatement. 

If the intent of the Legislature had been otherwise in enacting section 9, 
it would have expressed it by the use of some phrase as, pay into the 
annuity savings fund the amount which such person would have paid 
during the period of his military or naval service if he had remained in the 
service of the Commonwealth during such period. 

It is immaterial whether such a person after leaving the military or 
naval service chose to remain unemployed before seeking the reinstate- 
ment to which he was entitled or engaged in some gainful private employ- 
ment during that period. Upon such person's reinstatement or re-employ- 
ment, the Commonwealth is to make up the contributions which he would 
have made if he had not gone to the war or, as the statute expresses it: 
"had his employment in the service of the commonwealth . . . not been 
interrupted by his said military or naval service." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Department of Public Works — Bridges — Transfer of Control — St. 1945, 

c. 690. 

Nov. 6, 1945. 

Hon. Herman A. MacDonald, Commissioner of Public ]Vorks. 

Dear Sir: — I am in receipt from you of the follo\^ing letter: 

"In carrying out the provisions of St. 1945, c. 690, the Department 
requests a decision from you relative to the public authority approving 
the transfer of any bridges eligible to be taken over by the Department 
under this chapter. 

Would the selectmen of a town have the authority to approve a transfer 
of this nature in accordance with chapter 81, section 4, without first 
receiving the approval through the procedure of a town meeting?" 

Said St. 1945, c. 690, § 1, provides for the transfer of the care, control 
and maintenance of certain public highway bridges from cities and towns 
to the State Department of Public Works: 



P.D. 12. 09 

"provided, that prior to January first, nineteen hundred and forty-six, 
(he public authority in charge of (any) such bridge shall have filed with 
said department approval of the transfer aforesaid." 

It is impossible to give to the words "the public aulhoritij in charge of 
such bridge" as used in said section 1 a general definition which shall be 
applicable to officials of all towns or all cities. Such public authority will 
be of a different character in various towns and cities according to the 
joarticular form of local government, whether created by adoption of dif- 
ferent statutory provisions or by the acceptance of particular (barters or 
by reason of special statutes concerning certain bridges. 

The authority granted by G. L. (Ter. Ed.) c. 81, 5^ 4, to certain desig- 
nated officials to perform particular acts with respect to public ways, 
referred to in your letter, has Jio relation to the acts of approval of the 
transfer mentioned in said chapter 690. 

In the generality of towns the public authority having charge of bridges 
as part of the public ways will be either the selectmen or the road com- 
missioners (but not the highway surveyor or superintendent of streets), 
depending upon the administration set up in this respect of any particular 
town. 

As to cities, many of which function under special charters and differ 
from each other in regard to the duties of their respective officers, no 
general rule can be laid down as to who is or is not "the public authority" 
referred to in said chapter 690. Moreover, special statutes exist in many 
instances providing for the charge and maintenance of particular bridges. 
Each case in this respect will have to be viewed in the light of the particu- 
lar statutes applicable to it. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



State Employees — Establishment of Working Hours. 

Nov. 7, 1945. 

Hon. Herman A. MacDonald, Department of Public Works. 

Dear Sir: — You have asked my opinion "as to whether or not the 
Commissioner of Public Works has the authority to establish the work- 
ing hours of the employees of the department." 

I answer this question in the affirmative. 

The Legislature has not determined the number of hours of work wiiich 
are to be required of employees of the various departments, and the 
Division of Personnel and Standardization, if it has the power to make 
such a determination, which may be doubted, has not, as I am informed, 
purported to do so. In my opinion, no such legislative determination 
can be said to arise from the fact that the General Court has })laced a 
limit upon the number of working hours in each day and week for laljorers. 

In the absence of such determination, the Commissioner of Public 
Works, like the administrative head of any of the State departments, has 
the authority to fix the working hours of the employees in such depart- 
ment. He must, of course, exercise such authority in a reasonable and 
non-discriminatory fashion with due regard to the maximum for such 
hours established by the Legislature. 



70 P.D. 12. 

A similar view was expressed by one of my predecessors in office in an 
opinion rendered you on April 30, 1942 (Report of the Attorney General, 
1942, p. 165) with which opinion I am in accord. In so far as an opinion 
of a former Attorney General, given you on April 21, 1943 (Report of 
the Attorney General, 1943, p. 44), is at variance with the said opinion 
of April 30, 1942, I am not in agreement with such later opinion of April 
21, 1943. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Milk — Registered Dairy Farms. 

Dec. 4, 1945. 
Hon. Frederick E. Cole, Commissioner of Agriculture. 

Dear Sir: — You have asked my opinion, as to the following two 
questions : 

"1. Does the issuance of a certificate of registration to a dairy farm 
obligate that farm to sell its milk in the markets of this Commonwealth? 

2. Can the certificate of registration be revoked for failure of a regis- 
tered dairy farm to sell or offer or expose its milk for sale in this Com- 
monwealth? " 

I answer both of these questions in the negative. 

The pertinent statutory provisions involving the answer to these two 
questions are contained in G. L. (Ter. Ed.) c. 94, §§ 16A-16I, inclusive, 
as inserted by St. 1932, c. 305. A study of these sections indicates that 
they are intended to provide authority for the inspection, regulation, and 
control of the production of milk so as to assure sanitary conditions in 
its production and minimize the spread of certain diseases. These pro- 
visions are also intended to assure milk of a satisfactory quality for con- 
sumption in the Commonwealth of Massachusetts and are related more 
to the question of public health than to an adequate quantitative supply 
of milk. The problem of an adequate quantitative supply of milk for the 
Commonwealth is handled, as you are aware, by the Milk Control Board 
by authority of the Milk Control Act. 

Section 16D is the only section definitely dealing with the question of 
revocation or suspension of certificates, and reads as follows: 

"A certificate of registration of a dairy farm may be refused, suspended 
or revoked by the director for failure to comply A\ath such rules, regula- 
tions and uniform minimum requirements; provided, that before any such 
suspension or revocation becomes effective, or upon such refusal, the 
parties concerned shall be given a hearing before the director or a person 
designated by hnn for such purpose. The parties concerned shall be given 
a reasonable notice of the hearing, specifying the day, hour and place 
thereof and accompanied by a statement of the alleged failure to comply, 
or the reasons for such refusal. The director may allow the parties con- 
cerned a period of not more than thirty days from the date of the hearing 
within which to make a substantial compliance with said rules, regulations 
and uniform minimum requirements. An appeal from the decision of the 
director may be taken to the board, whose decision shall be final. Notice 
of the refusal, suspension or revocation of a certificate of registration shall 
be given to each distributor or dealer of record handling milk produced 
on such dairy farm, and to the board of health of each town of record 



P.D. 12. 71 

where milk produced on such dair}' farm is sold, offered or exposed for 
sale. In case of emerfj;ency, the dei)artment of public health may suspend 
or revoke any such certificate of registration." 

The language of section 16D and the other sections does not indicate 
that a certificate of registration is issued conditionally on its recipient's 
selling or continuing to sell milk within the Commonwealth, nor does it 
indicate any obligation to do so. These sections are also lacking in lan- 
guage indicating any authority for the revocation of any registration 
certificate in cases where the selling of milk within the Commonwealth is 
discontinued by the holder of such a certificate. 

While the last sentence in section 16D states "In case of emergencj'', the 
department of public health may suspend or revoke any such certificate 
of registration," it is my opinion that the emergency intended should be 
one consistent and allied with the general purposes and intention of the 
sections in question, namely, the regulation of a public health problem, 
rather than the assurance of an adequate quantitative supply of milk. 

The regulations of the Milk Regulation Board contain none that have 
any relationship to the questions concerned. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Conservation — Authority of Inspectors to Stop Motor Vehicles 
in Suppressing Gypsy Moths. 

Dec. 4, 1945. 
Hon. A. K. Sloper, Commissioner of Conservation. 

Dear Sir : — In a recent letter you have asked my opinion upon two 
questions of law: 

1. Have your inspectors legal authority to halt a trailer or other vehicle 
upon a road or highway, inspect it, and, if egg clusters are found, detain 
such vehicle until the eggs have been treated? 

2. Have your inspectors the legal authority to enter a public trailer 
camp and inspect all trailers parked therein and detain any which are 
found to be infested? 

The authority' of your inspectors is contained in G. L. (Ter. Ed.), c. 132, 
§ 11, as amended. This section does not confer authority upon your in- 
spectors to stop vehicles upon highways on suspicion that they may con- 
tain gypsy moth egg clusters. I therefoi'e advise you that the first question 
must be answered in the negative. 

The statute above referred to does confer authority to enter upon any 
land and there use all reasonable means in suppressing moths and tent 
caterpillars. Under the authority so conferred, I advise that your in- 
spectors may legally enter any public or private trailer camp and inspect 
all vehicles found therein ancl, if the same are infested with gyi^sy moth 
eggs, detain said veiiickss until the eggs have been treated. 

\'ery truly yours, 

Clarence A. Barnes, Attorney General. 



72 P.D. 12. 

Legislator — Qualifying Oath — Salary. 

Dec. 13, 1945. 

Hon. Frederick B. Willis, Sjieaker of the House of Representatives. 

Dear Sir': — In a recent letter you have asked me to advise you whether 
in my opinion you are correct in your behef that under the provisions of 
St. 1945, c. 248, § 1, amending G. L. (Ter. Ed.) c. 3, § 9, the Governor and 
Council may, upon receipt of a communication from you stating that 
John D. Brown of Boston, who was elected a representative from the 
4th Suffolk District, is entitled to the payment of $2500 provided by said 
section 9, as amended, as compensation as a representative for the regular 
annual session of the Legislature of the present year, authorize such pay- 
ment notwithstanding the fact that said Brown did not take the quali- 
fjdng oath until December 4, 1945. 

Your letter does not state the reason for the delay to December 4, 1945, 
in the quahfication to office of said Brown. Assuming that the circum- 
stances with reference to the failure to qualify previous to December 4 are 
not such as to indicate an abandonment by the said Brown of his office as 
a representative, I am of the opinion that the belief which you have ex- 
pressed is a correct view of the question of law involved. Phillips v. Boston, 
150 Mass. 491, 493. 

The Constitution of Massachusetts, pt. 2d, c. VI, art. I, provides that 
the persons elected to certain offices (including a member of the House 
of Representatives) shall subscribe to the oath therein provided before 
proceeding to execute the duties of their offices. This requirement was 
complied with by the member concerned on December 4, 1945, and on 
that day he became a member of the House of Representatives. 

The compensation provided for by said section 9, as amended, is in its 
nature an annual salary M^hich attaches to and is an incident of the office. 

It is apparent from said section 9, as amended, that the salary of a mem- 
ber of the House of Representatives is an annual one, even though pro- 
vision is made for its pa3Tiient on a monthly basis at the request of the 
holder of the office. 

An examuiation of the cases decided by our Supreme Judicial Court 
does not disclose any precisely in point, nor any indicating that the situa- 
tion in this matter is not covered by the general rule as stated in American 
Jurisprudence, Vol. 43, vj 379, p. 161, as follows: 

"The right of a public officer to his fees, emoluments, or salary does 
not arise by virtue of contract, express or implied, but, if it exists at all, 
exists as a creature of the law and as incident to the office which he occu- 
pies. Such compensation as may be attached to the office, although not 
generally fixed on a quantum meruit basis, must necessarily be a reward 
for the performance of official duties. And it is the purpose of the law 
that the incumbent of an office shall devote his personal attention to the 
duties of the office to which he is appointed or elected. But this does not 
mean that he shall lose his title to the office or his right to the emoluments 
or salary connected with it because he may be absent or away from the office 
for a short, occasional, or even a protracted, period of time and does not 
during such period of time personally give his time and attention to the 
duties of the office." 



P.D. 12. 73 

The fact that a pubHc officer has not actually performed the duties of 
his office does not deprive him of the right to receive his salary where 
there has been no abandonment of tlio office. Leonard v. Terre Haute, 
48 Ind. App. 104. Fitzsimmons v. Brooklyn, 102 N. Y. 536. Phillips v. 
Boston, 150 Mass. 491, 493. Report of the Attorney General, 1941, pp. 56, 
59. Bell V. Treasurer of Cambridge, 310 Mass. 484, 487, and cases cited. 
Smith V. Jackson, 246 U. S. 388. State ex rel. dinger v. White, 143 Ohio 
St. 175. 

In the case of State ex rel. dinger v. White, 143 Ohio St. 175, the court 
substantially held that a person rightfully holding public office may be 
entitled to compensation attached thereto as an incident of his title to 
office, regardless of the exercise of the functions thereof, so that the officer's 
failure to perform duties of office does not necessarily deprive him of the 
right to compensation if his conduct does not amount to abandonment of 
office. 

It follows from what has been stated above that the representative 
concerned may, after qualifying, receive the annual salary incident to the 
office for which he has qualified, provided that the reason for his failure to 
qualify and perform his duties does not constitute an abandonment of the 
office. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Department of Public Works — Logan Airport — Motor Vehicles — Rules — 
Busses — Hackney Carriages. 

Dec. 18, 1945. 
Hon. John F. Stokes, Commissioner of Public Safety. 

Dear Sir: — In a recent letter you asked my opinion upon three 
questions of law: 

"1. Is a common carrier, licensed in accordance with chapter 159A, a 
public automobile, as defined in the rules? 

2. Is a motor vehicle, licensed as a common carrier in accordance with 
the provisions of chapter 159A, a hackney carriage, as defined in section 1 
of the rules? 

3. Does the Sutcliffe Storage & Warehouse Co., Inc. come within the 
supervision of the rules, and are they subject to the direction of any State 
Police officers assigned for duty, as provided in section 10 of the rules?" 

The authority of the Department of Public Works to make rules and 
regulations and charges for the use of the General Edward Lawrence 
Logan Airport is contained in St. 1943, c. 528, § 6, which is as follows: 

"The department of public works may make such rules, regulations and 
charges for the use of said airport or part thereof as it may from time to 
time deem reasonable and expedient, subject to the approval of the gov- 
ernor and council." 

Acting under said authority and with the approval of the Governor and 
Council, the Department of Public ^^'orks has formulated certain mles 
and regulations for the use of said airport by busses and hackney carriages 
and taxicabs and in said rules, has defined a public automobile as follows : 

Public automobile — a hackney carriage used for livery purposes, 
without a taximeter. 



'74 P.D. 12. 

The above-mentioned authority of the Department of Public Works is 
paramount and is not derogated by G. L. c. 159A, <; 7, under the terms 
of which the Department of Pubhc Utihties issues certificates of pubhc 
convenience and necessity. 

Accordiiigiy, I answer each of your questions in the affirmative. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 

Civil Service Commission — Director — Apyeals — Classification Plans. 

Dec. 18, 1945. 
Civil Service Commission. 

Dear Sirs: — With relation to the classification plan established by the 
Director of the Division of Civil Service for the Boston Department of Pub- 
hc Welfare under G. L. (Ter. Ed.) c. 31, § 2A (6), as amended by St. 1945, 
c. 725, § 1, you have asked my opinion upon two questions of law as follows: 

"l.-Has the Civil Service Commission the power, by reason of its 
general authority to review the action of the director or under the item 
contained in the classification plan that it would review the action of the 
director, the power to raise to a higher allocation any position which the 
director upon recommendation of the appointing authority has allocated 
to a level to which the employee objects and appeals to this Commission 
for a hearing? 

2. Has the Commission the power to raise the allocation to a higher 
grade under the circumstances set forth in paragraph one if the depart- 
ment head does not concur in the Commission's findings?" 

I answer both of these questions in the affirmative. 

The Civil Service Commission is vested with authority to "hear and 
decide all appeals from any decision of the director upon application of a 
person aggrieved by such decision." G. L. (Ter. Ed.) c. 31, § 2 (6), as 
amended. The authority to "decide all appeals" by implication must 
comprehend "the power to raise to a higher allocation any position" 
decided by the director to belong to a lower allocation, from which de- 
cision an appeal has been taken; otherwise, the authority to decide such 
an appeal would be a mere nullity devoid of all efficacy. 

The power of the commission to raise a position upon such an appeal to 
a higher allocation than that decided upon by the director is not limited 
by the nonconcurrence in its findings or action by the head of a department 
in which the appellee is employed. No provision of the applicable statutes 
appears to require either a recommendation of an appointing or employer 
authority as a prerequisite to an allocation of a position in a classification 
plan by the director or the approval by such an authority of the findings 
or action of the commission upon an appeal from the decision of the 
director as to the allocation of a position under a classification plan. 

Your questions relate only to classifications of "positions." With 
regard to the assignment of individual employees to positions newly 
classified, it would appear to be the duty of the director, in the first in- 
stance, to determine, in regard to each separate case, upon all the facts, 
whether or not the assignment of a particular employee to a newly classi- 
fied position results in a promotion. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 75 

Milk Control Board — Director — Term of Ojlice. 

Dec. 19. 1945. 
Mr. Ro(;ek F. Clapp, Chairman, Milk Control Board. 

Dear Sir : — You have asked my opinion as to the duration of the 
term of office of the Director of Milk Control and the authority of the 
Milk Control Board to terminate the same or to establish the position on 
a definite term basis. 

The office of the Director of Milk Control was established ])y the pro- 
visions of G. L. (Ter. Ed.) c. 20, ^ 8, which provide in its applicable part 
as follows: 

"The board, subject to the approval of the governor and council, shall 
appoint a director of the division of milk control, whose title shall be 
director of milk control ..." 

This position or office does not come within the provisions of the Civil 
Service Law, since this law (G. L. (Ter. Ed.) c. 31, ?f 5) excludes therefrom 
"officers whose appointment is subject to the approval of the governor 
and council" and "directors of divisions authorized by law in the depart- 
ments of the commonwealth, except those expressly made subject" to the 
Civil Service Law. 

Since there is no period of time provided by our law as to the duration 
of the term of office of the Director of Milk Control, and since this office 
does not come under civil service, it follows that a removal of the Director 
of Milk Control can be effected only by the original appointing authority, 
which in this case would be "the board, subject to the approval of the 
governor and council." 

It is also my opinion that any future appointment to the office of Direc- 
tor of Milk Control can not be made on any different basis or for any 
definite period of time, since such an appointment so made would be con- 
trary to the provisions of chapter 20, section 8. If the best interests of 
the Commonwealth require it, and a more successful administration of 
the Milk Control Law can be had by the establishment of the term of 
office of the director for a definite period of time, this change can be effected 
by legislative intervention, but it can be brought about only by action 
of the General Court. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Director of Marine Fisheries — City Ordinance — Shellfish. 

Dec. 27. 1945. 

Hon. Archibald K. Sloper, Commissioner of Conservation. 
Dear Sir : — In a recent letter you have written me as follows : 

"Has the Director of Marine Fisheries of this Department the legal 
right to revoke his approval of a city ordinance or town regulation as 
granted by him under authority of G. L., c. 130, {> 52, particularly the last 
paragraph thereof as appearing in St. 1941, c. 598? 

For your consideratio)i there is enclosed a copy of an ordinance of the 
city of Boston as passed by the City Council on March 26, 1945, approved 



70 P.D. 12. 

by the Mayor on April 16, 1945, and approved by the Director of Marine 
Fisheries on April 18, 1945. 

Would a revocation of his approval render null and void any such city 
ordinance or town regulation?" 

By the provisions of G. L. (Ter. Ed.) c. 130, § 52, the selectmen of a 
town iDordering upon coastal waters and the board of aldermen or city 
council of a city so situated are authorized to regulate the taking of shell- 
fish within such cities and towns, and may make regulations in regard to 
the same as they deem expedient. It is provided that any such regula- 
tions so made shall continue in force until the authority making them shall 
alter or rescind the same or the power given to them by the Legislature 
in this respect shall be repealed. 

With respect to the making of regulations by municipal authorities 
with relation to the taking of shellfish from areas determined to be con- 
taminated under G. L. (Ter. Ed.) c. 130, § 74, as to which you particu- 
larly inquire, the last paragraph of said section 52 provides : 

"Nothing in this section shall be construed to authorize the aldermen, 
city council, or selectmen to exercise any authority hereunder in areas 
declared under section seventy-four or under corresponding provisions of 
earlier laws to be contaminated unless such action is approved in writing 
by the director." 

The statutes have nowhere provided that the director may withdraw 
or cancel his approval once given in writing to regulatory action of a 
municipal body with respect to areas declared to be contaminated. 

It would appear, in view of the whole context of said section 52, that in 
giving his approval to such regulatory action of a municipal body with 
respect to areas declared to be contaminated the director has exhausted 
the power vested in him by the said last paragraph of section 52 with 
relation to such action, and that he cannot thereafter effectively revoke 
his approval of such action as expressed by the enactment of an ordinance 
or regulation. 

Accordingly, I answer both the questions contained in your letter in 
the negative. 

Very truly yours, 

Clarence A. Barnes, Attorney (leneral. 



Retiremeyit Allowances for State Police Officers. 

Jan. 10, 1946. 

Hon. John E. Hurley, Chairman, State Board of Retirement. 

Dear Sir : — You have asked my opinion as to whether there are any 
provisions in G. L. (Ter. Ed.) c. 32, as amended by St. 1945, c. 658, which 
establish the amoimt and manner of payment of retirement allowances 
for officers of the Division of State Police, who might be retired under the 
terms of G. L. (Ter. Ed.) c. 32, ^ 28A, as amended by said St. 1945, c. 658. 

I answer your question to the effect that there are no such provisions; 
that said section 28A has not been implemented specifically or by implica- 
tion in any statutory terms which enable its purpose to be accomplished. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 77 

h'etinnicnt System — Superintendent of Schools — Retirement for Super- 
annuation — Elective Ojfice. 

Ja\. 10, 1946. 

Hon. Chakles F. J. Harrincton, Commissioner of Insurance. 

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

"A member of the Teachers' Retirement System who is the superin- 
tendent of schools and a teacher in the public schools in the tov;n in which 
he resides will become seventy years of age on January 5, 1946. 

He is also by popular election town treasurer and a member of the board 
of selectmen. His term as town treasm-er nms until March, 1946, and his 
term as selectman does not expire until March, 1947. 

He is not a member of the retirement system of the town, never having 
exercised his option to join it. 

Under section 21 of the General Laws, chapter 32, his application for 
retirement and related documents are forwarded to this department for 
examination and approval. 

A question lias arisen relative to the interpretation of the pertinent 
portions of General Laws, chapter 32, viz., section 5 (d), sentence 3, and 
section 91; and accordingly we are asking your advice and opinion on the 
following questions: — 

1. ]\Iust this person vacate the offices of selectman and treasurer on 
January 5, 1946? 

2. Ls this person entitled to continue to hold the offices of selectman 
and treasurer until the next annual election for the respective positions? 

3. ALay a member of the Teachers' Retirement System who holds 
elective offices in a political subdivision which has a retirement system of 
which he is not a member continue to hold elective offices as provided for 
in the third sentence of section 5 (d) of General Laws, chapter 32? 

4. If the answer to question 1 is in the affirmative, may the board of 
selectmen recall him to the offices of treasurer and member of the board 
of selectmen for the 'duration of war' under the provisions of chapter 
16of the Acts of 1942?" 

Although the questions which you ask are to some extent hyjDothetical, 
their determination may be of assistance to you shortly in performing 
the duties with relation to retirement systems which have been placed 
upon you by the Legislature in G. L. (Ter. Ed.) c. 32, ^^ 21 and 24, as 
most recently amended by St. 1945, c. 658. Consequently, I advise you 
that in my opinion the answer to your first question is in the negative, 
and the answers to your second and third questions are in the affirmative. 
Since the answer to the first question is in the affirmative, no answer is 
required to yoiu' fourth question. 

Although the person to whom you refer will be retired from his position 
as superintendent of schools on January 5, 1946, by reason of having 
attained the age of seventy, and will thereafter by force of such retire- 
ment cease to be a member of the Teachers' Retirement System, he will 
not on that account be obliged to vacate the elective offices of town treas- 
urer and selectman which he has also held. 

Section 91 of said chapter 32 provides in this respect in its applicable 
part : 



78 P.D. 12. 

"No person while receiving a pension or retirement allowance from . . . 
any . . . town . . . shall, after the date of the first payment of such 
pension or allowance, be paid for any service rendered to the . . . town 

No provision of the statutes requires that such a person shall vacate 
an elective town office upon receiving a pension or retirement allowance, 
or upon becoming seventy if not a member of a town retirement system. 
It does, however, forbid the receiving of compensation for service in such 
office thereafter. 

If, in his capacity as an elective town officer, the person in question had 
been a member of a town retirement system, which you say he was not, 
his right to retain his elective town office or offices after attaining the 
maximum age for his group of members would have been governed by the 
provisions of G. L. (Ter. Ed.) c. 32, ^ 5 (1) (d), sentence 3, to which you 
refer, and by the specific terms of that sentence he would have been 
capable of serving in such elective town office or offices without loss of pay 
until the next regular election. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Armory — Non-military Use — Adjutant General. 

Jan. 14, 1946. 
Brig. Gen. William J. Keville, The Adjutant General. 

Dear Sir : — You have asked me as to whether a certain non-military 
use of an armor}^, described in a letter which you have transmitted to me, 
may be granted. 

The Attorney General does not pass upon questions of fact. 

As a matter of law, the purposes for which armories may be used other 
than for the military purposes of the organized militia have been set forth 
specificially by the Legislature in G. L. (Ter. Ed.) c. 33, ^ 41. 

They include in subdivision (a) of said section 41 uses by military units 
for social activities or athletics or for drill purposes by drill teams, bands 
or drum corps of war veterans' organizations. 

By the terms of subdivision (c) of said section 41 armories may also be 
used under certain conditions temporarily for certain specifically named 
pubhc purposes which, as set forth therein, are as follows: 

A pubUc meeting, or hearing, held by a State department, board or 
commission. 

An examination conducted by the division of civil service. 

A meeting of an organization composed of certain veterans, or their 
auxiliaries, a board of trade, a chamber of commerce, or a meeting to 
raise funds for any non-sectarian charitable or non-sectarian educational 
purposes. 

A meeting to raise funds for a benefit association of policemen or firemen. 

Meetings of military organizations of scholars in the public schools. 

Elections, primaries or caucuses, and town meetings. 

Meetings or rallies of a political or municipal party, as defined in section 
one of chapter fifty. 

A meeting of an organization of boys or girls under eighteen years, or 
of a student military organization of a designated type. 



P.D. 12. 79 

Under subdivision (d) of said section 41 an armory may be used for a 
short period for certain designated exhibitions of the products of hibor, 
agriculture or industry. 

There has been no authority granted by the Legishiture to any officer of 
the Commonwealth to grant the use of armories for any purpose or use 
other than those above set forth. 

However, in any particular instance where application is made for the 
use of an armory for other purposes than those of military employment 
by the organized militia, the officer charged with the duty of granting 
permission for armory use must determine as a matter of fact whether the 
purpose for which an armory is proposed to be used by those appl^dng comes 
within any of the purposes designated by the Legislature and above set 
forth. If it does come within any of them he may grant the desired per- 
mission, all other necessary conditions having been complied with. If it 
does not, it is his duty to refuse such permission. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Minimum Fair Wage Law — Females — Minors — Discrimination. 

Jan. 14, 1946. 

Recess Commission on Wage and Hour Standards. 

Dear Sirs: — I am in receipt from you through your secretary of the 
following letter: 

"This commission today instructed me to request your opinion as to 
whether the ' equal pay for equal work law ' enacted by the Legislature at 
the 1945 session applied to men as well as to women. 

The commission then wishes to know if this law should apply, would 
men then come under the minimum wage orders issued by the department 
of labor and industries for women and minors in certain industries." 

The "equal pay for equal work law" to which you refer is, I assume, 
G. L. (Ter. Ed.) c. 140, §§ 105A — 105C, which sections were inserted 
by St. 1945, c. 584, § 3. . 

The Attorney General, following a long line of practice and procedure 
of this department, does not make general interpretations of statutes nor 
define generally how a statute may be applied under unspecified condi- 
tions, especially when, as in the present instance, the indicated statute 
has not been the subject of judicial consideration. 

However, for your guidance, let me say that it appears that the intent 
of the Legislature as expressed in said sections 105 A to 105C was to forbid 
and penalize an employer who discriminates against an employee in the 
payment of the employee's wages because of the employee's sex. In this 
sense the said sections may be said to apply to both men and women, 
though the explicit provisions of the second clause of the first sentence of 
said section 105A indicate that a purpose of the statute, perhaps its prin- 
cipal one, was to forbid the use of differentials in wages prejudicial to fe- 
male employees. 

No provisions of said sections 105A to 105C purport to affect the mini- 
mum fair wage law for women and minors. G. L. (Ter. Ed.) c. 151, as 
amended. There is no authority conferred on anyone under said chapter 
151 to establish minimum wage rates for men. It is doubtful if an em- 
ployer required by orders made under chapter 151 to pay a certain mini- 



80 P.D. 12. 

mum wage rate to women could properly be said, as a matter of law, to 
"discriminate" against a male employee by paying him at a rate less 
than said minimum, since such minimum was established not by the 
employer himself but by officers of the Commonwealth. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Retirement System — Employees in Department of Mental Health — Em- 
ployees at State Farm. 

Jan. 15, 1946. 

Hon. John E. Hurley, Chairman, State Board of Retirement. 

Dear Sir: — You have directed my attention to G. L. (Ter. Ed.) c. 32, 
§ 3, par (2) {g), sub. par. "Group B," as amended by St. 1945, c. 658, sj 1, 
and have asked my opinion as to whether the provisions of such section 
include within the sweep of "Group B" those employees in the Depart- 
ment of Mental Health who have the care and custody of insane persons. 

I am of the opinion that all such employees of the Department of 
Mental Health are included as members of "Group B" of the retirement 
system by the said provisions, and that such inclusion is not limited to 
those employees of the said department who have the care and custody 
of insane persons or defective delinquents at the State Farm. 

The pertinent portions of said . 3, par. (2) {g) read: 

"Department heads shall furnish to the board (the appropriate retire- 
ment board) ... a statement ... of each employee in his department 
and thereupon the board shall classify each member in one of the follow- 
ing groups: 

Group B. — Members of police and fire departments not classified in 
Group A, members of the police force of the metropolitan district com- 
mission, capitol police, conservation officers paid as such, district fire 
wardens, coastal wardens in the department of consei'vation, and em- 
ployees of the commonwealth and of any county, regardless of any official 
classification, whose regular and major duties require them to have the 
care and custody of prisoners or insane persons or of defective delin- 
quents at the state farm." 

I am of the opinion that the word "or" as used by the Legislature in the 
last and the next to the last line of the above-quoted paragraph concern- 
ing Group B was employed in a disjunctive rather than a conjunctive 
sense, as it sometimes is, and is here synonymous with "and" so that 
the words "at the state farm" at the end of said paragraph were not 
intended to and do not limit the meaning of the words "employees of the 
commonwealth and of any county . . . whose regular and major duties 
require them to have the care and custody of prisoners or insane persons " 
(see Gaynor's Case, 217 Mass. 86, 89, 100). Such a limitation arising from 
the phraseology of the words "at the state farm" is applicable only to 
such employees as have the care and custody of defective delinquents. 

I am confirmed in my opinion by a consideration of the fact that whether 
or not there are defective delinquents confined at the present time else- 
where than at the State Farm, departments for defective delinquents may 
at any time be established at the Massachusetts Reformatory or at any 



P.D. 12. SI 

other place or places approved by the Governor and Council and defec- 
tive delinquents may be committed to such departments by the courts 
(G. L. (Ter. Ed.) c. 123, §§113, 117, as amended), and also by the fact 
that the employees referred to in the phrases under consideration are 
"employees of the commonwealth and of any county," and that county 
employees have no duties in regard to prisoners or insane persons at the 
State Farm. 

Very truly yours. 

Clarence A. Barnes, Attorney General. 

Merrimack Valley Joint Sewerage Board. 

Jan. 25, 1946. 

Hon. Thomas A. Berrigan, Chairman, Merrimack Valley Joint Sewerage 

Board. 

Dear Sir: — In reply to the questions contained in your recent letter, 
Res. 1945, c. 62, confers no power on the joint board relative to disposal 
of sewage in the Merrimack River valley, other than to make an investi- 
gation and study, including ])lans, maps and estimates and including 
access to all plans, reports and specifications relative to sewerage and 
sewage disposal of any of the cities and towns mentioned in the resolve, 
and to consider and report to the General Court a plan for such sewage 
disposal. For the foregoing purposes, the joint board is authorized to 
employ necessary engineering and other assistants and to e.xpend an 
amount not exceeding $35,000. 

By St. 1936, c. 420, § 6, which act appears to supersede St. 1935, c. 446, 
the Merrimack River Valley Sewerage Board was authorized to construct, 
maintain and operate, subject to the approval of the Department of Pub- 
lic Health, sewerage works for the district created by section 1 of that 
act. By section 12 of said act, that board was authorized to receive 
Federal funds for the work. The foregoing provisions are, however, made 
inoperative by section 16 thereof after January 1, 1938, unless, in the 
meantime, funds for the purpose of carrying them out have been allocated 
by the Federal Government under authority of appropriate Federal legis- 
lation. I assume that if there had been any such Federal allocation prior 
to January 1, 1938, you would have kliown of it. 

I have caused all the acts and resolves cited by you to be examined 
and have also considered St. 1945, c. 74, v^ 2. None of them, in my opinion, 
operate to extend beyond January 1, 1938, the limit of time mentioned 
in St. 1936, c. 420, ^^ 16, and I have been unable to find any other legis- 
lation granting such an extension. Therefore, I make reply to your ex- 
press questions as follows: 

1. The Merrimack River Valley Sewerage Board has no power, acting 
alone or jointly with the Department of Public Health, to request and 
accept funds from the Federal Govermnent, either as loan or gift, to cover 
engineering cost for sewerage projects in the Merrimack River valley. 

2. The foregoing answers your second question as to the power of the 
joint board. 

3. As to your third question, I am of opinion tliat the joint board is 
not authorized to incur obhgations in excess of the sum of S35,000 to 
which its expenditures are limited by Res. 1945, c. 62. 

Very truly yours, 

Clarence A. Barnes, Attorney (leneral. 



82 P.D. 12. 

Bonus — Temporary Member of United States Coast Guard Reserve. 

Jan. 30, 1946. 
Hon. John E. Hurlev, Treasurer and Receiver General. 

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

"I respectfully request a formal opinion from your office relative to 
whether or not a temporary member of the United States Coast Guard 
Reserve who served on a full time basis with pay is entitled to receive 
the bonus provided by St. 1945, c. 731." 

I am of the opinion that a temporary member of the United States 
Coast Guard such as you have described in your letter is entitled to re- 
ceive the so-called "bonus" provided by St. 1945, c. 731. 

In an opinion which I rendered to you on August 27, 1945, I stated that 
you might legally pay the said "bonus" to "men who have served in the 
United States Coast Guard Reserve and possess the necessary qualifica- 
tions set forth in said chapter 731." 

I am informed by advices from the United States Coast Guard: 

"All persons enlisted in the regular establishment of the Coast Guard 
are originally enlisted in what is called a Special Temporary Enlistment, 
This contract terminology continues for six years. This six year period is 
a kind of probationary period during which time such enlisted personnel 
are not entitled to retirement with pay nor to payment by the Coast 
Guard for any physical disability incurred in line of duty. At the termi- 
nation of this probationary period they may re-enlist in the regular estab- 
lishment provided they are physically, professionally, and morally qualified 
and then they become eligible for retirement and payment for service 
incurred disabihty. The Special Temporary Enhstment contract is 
printed on green paper and the regular contract is printed on white paper. 
They are popularly referred to as 'green ticket' and 'white ticket' re- 
spectively. Men in both classes of enlistment are members of the regular 
United States Coast Guard, perform all duties of Coast Guard, are classed 
as veterans and are entitled to all of the rights and benefits of the G. I. Bill 
of Rights. 

"The Special Temporary Enlistment should in no way be confused with 
that branch of the Coast Guard called the Temporary Reserve which 
was composed of civilian volunteers for part tmie service." 

In view of the foregoing statement as to the status of temporary mem- 
bers of the Coast Guard, it would appear that all those persons who were 
enlisted by the Special Temporary Enlistment became members of the 
United States Coast Guard Reserve, as those words were used in my 
previous opinion, and as such are entitled to the "bonus." 

Such persons so enlisted are not, as the Federal authorities have pointed 
out, to be confused with those serving in the "Temporary Reserve" as 
civihan volunteers for part tune service only, who cannot properly be 
said to have become members of the United States Coast Guard Reserve 
within the meaning of the said previous opinion and consequently do not 
appear to be entitled to receive the "bonus." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 83 

Military Leave of Absence — Return to Service — Time. 

Feh. 6, 1946. 
Dr. Clifton T. Perkins, Commissioner of Mental Health. 

Dear Sir : — In a recent letter you have asked my opinion as to wliether 
yon may fill the ])osition of a certain person in your department by a 
permanent appointment. Although the facts with relation to the em- 
ployment of such person are not stated in detail in your letter to me, I 
assume, from the context of your communication, that such person termi- 
nated his ser\'ice with the Coimnon wealth on July 1, 1941, for the purpose 
of serving in the mihtary forces of the United States; that a year from the 
termination of such military service has not yet elapsed; that such person 
has expressed in writing his intention of not returning to such position. 

St. 1941, c. 708, as amended by St. 1943, c. 548, provides that a person 
terminating his service with the Commonwealth for the purpose of serving 
in the military forces of the United States and serving therein shall be 
deemed to be on leave of absence and no such person shall be deemed to 
have terminated his service with the Commonwealth until the expiration 
of one year from the end of his military service. Provision is also made 
for filling the position of such person until his return from such leave of 
absence. 

It is not provided that a person on such a leave of absence may re- 
nounce the right of return to his position before a year has elapsed after 
the termination of his military service. It appears to have been the 
intent of the Legislature, as expressed in said chapters 708 and 548, to 
give to a soldier an absolute right to the full period of one year after the 
termination of militaiy service in which to return to the employ of the 
Commonwealth if he desires and his condition warrants. He cannot 
estop himself from exercising this right. 

You have informed me that the position in question is not under civil 
service; if it were, the period for return would be two years instead of one. 
(St. 1945, c. 610.) 

It follows that the position of the person in question may not at the 
present time be filled by a permanent appointment. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Labor and Industries — Qualifications of Members appointed 

by Governor. 

Feb. 14, 1946. 

His Excellency Maurice J. Tobin, Governor of the Commomcealth. 

Sir : — I am in receipt of the following communication from Your Ex- 
cellency's office: 

"G. L. (Ter. Ed.) c. 23, $ 1, provides as follows: 

'There shall be a department of l^bor ind industries, under tlie super- 
vision and control of a commissioner ol labor and industries, in this chap- 
ter called the commissioner, an assistant commissioner, who shall be a 
woman, and three associate commissioners, one of whom shall be a repre- 
sentative of labor and one a representative of employers of labor.' 



S-i P.D. 12. 

His Excellency Governor Tobin respectfully requests your opinion with 
relation to the qualifications of an associate commissioner, as to whether 
'a representative of employers of labor' must be an individual actually in 
business and employing people under him, or whether the requirement is 
simply that this representative of the board be considered as representing 
the interests of employers of labor irrespective of the question of his per- 
sonal status as an employer of labor." 

I am of the opinion that the phrase "one of whom shall be a representa- 
tive of labor and one a representative of employers of labor" was not 
used by the Legislature as requiring merely that persons selected as such 
representatives by the Governor shall by force of such selection be con- 
sidered as representing the interests of "employers of labor" or repre- 
senting "labor" respectively, irrespective of their personal relation to 
"labor" or to the employment of "labor." 

I am of the opinion that the intent of the Legislature was to require 
that the Governor should appoint persons who were in fact representative 
of those who labor, on the one hand, and of those who are "employers of 
labor," on the other. It would seem that such persons, to be real repre- 
sentatives of "labor" or of "employers of labor" as the quoted words 
are used in said section 1, would be, at the time of appointment, individuals 
who were or had been employees engaged in "labor," in the one instance, 
and those who were or had been employers of "labor," either directly or 
as officers of corporations or organizations employing "labor," in the other. 

In their original form (St. 1912, c. 726, J:; 1) the provisions of said chap- 
ter 23, section 1, required that the Governor appoint as two of the members 
of the then State Board of Labor and Industries "an employer of labor" 
and "a wage-earner." By Gen. St. 1919, c. 350, Pt. Ill, ^^ 70, which 
abolished the old board and established the Department of Labor and 
Industries, the words "an employer of labor" and "a wage-earner" were 
changed to those employed in the present form as embodied in said chapter 
23, section 1, "a representative of labor" and a "representative of em- 
ployers of labor." In the measure first introduced into the House in 1919, 
from which chapter 350 was evolved (1919, H. 1830), the apphcable pro- 
vision as to associate commissioners whom the Governor was authorized 
to appoint was "one of whom shall be a representative of labor." Later, 
on the floor of the House, this phraseology was amended so as to read as 
at present: "one of whom shall be a representative of labor and one a 
representative of employers of labor." 

In construing a statute relating to the same subject matter as that of a 
prior one which has been done away with, the phraseology of the earlier 
may be considered in placing a construction upon the later one {Commmi- 
wealth v. Bralley, 3 Gray, 456). It does not appear that in making these 
verbal changes the Legislature intended to indicate that a person who had 
never occupied the status of an employee (called a wage-earner in the 
earlier statute) or one who had never been connected with the employment 
of workmen might be deemed to be "a representative" of labor or of "em- 
ployers of labor," as the case might be. 

It is plain that under the terms of the said act of 1912 the Governor was 
required to appoint to the board one employer and one employee, thus 
assuring both employees and employers of members who would understand 
the particular needs and problems of each group. I am of the opinion that 
the change in phraseology adopted by the Legislature in 1919 does not 
indicate an intention on the part of that body to alter the assurance of 



P.D. 12. 85 

such representation to each of the two groups. Nor am I of the opinion 
that by the use of the words "a representative of" in said chapter 850, 
section 70, and said chapter 23, section 1, the General Court intended to 
so enlarge the class of persons from whom the Governor might appoint the 
associate commissioners in question as to include professional men, such 
as lawyers or technical advisers connected with employees or employers 
only by contracts for services. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Conservation Ojficers in the Division of Fisheries and Game. 

Feb. 18, 1946. 

Hon. Archibald K. Sloper, Commissioner of Conservation. 

Dear Sir : — In a recent letter you have asked my opinion as to whether 
or not "it is lawful to have supervising conservation officers in the Bureau 
of Law Enforcement of the Division of Fisheries and Game." 

I advise you that it is lawful to have such officers. 

G. L. (Ter. Ed.) c. 21, § 7, as amended, authorizes the director of the 
said division, with the approval of the commissioner, to appoint and 
remove ''conservation officers . . . and other assistants." 

Section 6 A of said chapter 21 provides that there shall be in the Division 
of Fisheries and Game a "bureau of law enforcement, under the charge of 
a chief conservation officer," and further provides that "all conservation 
officers, deputy conservation officers . . . shall be assigned to duty in 
said bureau." 

There is nothing in the phraseology of the statute to prevent the estab- 
lishment among "conservation officers" of the positions of "supervising 
conservation officers," provided that these positions be properly estab- 
fished under the rules of the Department of Administration and finance 
applicable to its Division of Personnel and Standardization. 

I am advised that several of such ])ositions have previously been so 
established and have been officially classified by the Division of Personnel 
and Standardization under the provisions of G. L. (Ter. Ed.) c. 30, §§ 45- 
49, and, furthermore, are now in existence, are classified by the Division 
of Civil Service, and are subject to its rules and regulations. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Port of Boston — Construction — Lease — St. 19Jf5, c. 619, § 10. 

Feb. 21, 1946. 

Hon. H. J. Nichols, Chairman, Port of Boston Authority. 

Dear Sir: — In a recent communication you request my opinion 
relative to the proviso in St. 1945, c. 619, § 10, which reads as follows: 

"provided, that no construction, to be paid for from the proceeds of the 
bond issue hereby authorized, shall be done unless the Authority shall 
have first executed a written contract, approved by the governor, with a 



86 P.D. 12. 

responsible party providing for the lease of said property, the minimum 
requirements of which shall be at a rate sufficient to amortize sixty per 
cent of the actual cost to the commonwealth of the facilities included in 
the lease, over a period not to exceed twenty years, which contract may 
provide that at the expiration of the term of the lease it may, at the option 
of the lessee, be renewed for a further period of twenty years; and pro- 
vided, further, that no expenditure or commitment from the proceeds of 
said bond issue in excess of five million dollars shall be made without 
further authorization by the general court therefor." 

The words, "at a rate", which you emphasize in your letter, are also 
emphasized in the above quotation, although no particular emphasis 
appears in the statute itself. 

It seems probable that the authors of the above proviso supposed that 
they were authorizing construction to be made by the Boston Port Au- 
thority only in cases where there is already in existence, at the time of the 
construction, a contract for a lease which will provide for reimbursing 
the Commonwealth in twenty years or less to the extent of not less than 
sixty per cent of the cost of the project, during the term of that lease; but 
nowhere in the proviso, or elsewhere in the statute, is there any provision 
limiting the period of such reimbursement to the term of the lease. There- 
fore, I am inclined to the opinion that, under the express terms of section 
10 of said chapter 619, the Boston Port Authority has power to acquire 
property and construct facilities within a total expenditure and commit- 
ment of five million dollars, provided it has already executed a written 
contract approved by the Governor with a responsible party providing 
for the lease of the property proposed to be constructed, if the agreed 
rental is at a rate sufficient to amortize in less than twenty years sixty 
per cent of the actual cost to the Commonwealth of the leased property, 
including constmction and all other expenses, irrespective of the term of 
the lease. 

However, the matter is not entirely free from doubt. Chapter 619 of 
the Acts of 1945, like chapters 653 and 665 of that year, and like chapter 
714 of the Acts of 1941, appears to contemplate the carrying out of port 
improvement projects which shall be self-liquidating. It is a well-known 
principle of statutory construction that the spirit of a law, if clearly 
appearing, will prevail over its letter. While I am of opinion that said 
chapter 619 does not require a lease entered into before beginning con- 
struction of a port improvement to be self-liquidating during its term, 
the possibility cannot be ignored that a different construction might be 
reached in the event of litigation. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Insurance — Life Policy — Waiver of Premiums. 

Feb. 21, 1946. 

Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir : — In a recent communication you have asked my opinion 
as to whether you may properly approve a policy of life insurance form 
which includes a waiver of premiums "in the event of the total and perma- 



r.D. 12. 87 

nent disability of tlie per.-50ii who pays tiie preiuiums on tlie policy and 
who is the owner thereof (^usually the parent of a minor child who is in- 
sured thereunder) " but is not the one whose life is insured. 

I am of the opinion that you cannot properly approve such a policy in 
view of the pertuient statutory provisions. The applicable statute by 
virtue of which life companies may provide for accidental death benefits 
and for the waiver of premiums is, as you have indicated, section 24 of 
G. L. (Ter. Ed.) c. 175. The relevant portion of this section hi its first 
paragraph reads: 

"Any life company . . . may provide in its policies of life ... in- 
surance . . . for the payment of an accidental death benefit . . . and 
may incorporate thereui or in its annuity or pure endowment contracts 
. . . provisions for the waiver of premiiuns or for the granting of special 
benefits in the event that the insured, or either of them, or the holder, as 
the case may be, becomes totally and permanently disabled from any 
cause." 

The word "msured" as used in said section 24 has been held in an 
opmion of one of my predecessors in office not to include "a beneficiary" 
(Opinion of the Attorney General to the Insurance Commissioner, October 
7,, 1931). The word "holder" in connection with a life insurance poUcy 
has been variously defined in judicial opinions depending upon the context 
in wliich it is used. It has sometimes been said to signify an insured, 
sometimes a beneficiary, and sometimes has been said to be synonymous 
with "owner." 

Irrespective of tiie meaning which may be given to the word "holder," 
with respect to a policy of life insurance, the mariner in which that word 
has been employed by the Legislature in said section 24 indicates that in 
the quoted portion of said section it is used not with reference to a policy 
of life insurance but solely with reference to an annuity or a pure endow- 
ment contract, so that it follows that a "holder" of a pohcy of life insur- 
ance is not one who may be made the recipient of the benefits of a provision 
for the waiver of premiums. 

Prior to 1929, said section 24, as tlien embodied in chapter 175 of the 
General Laws of 1921, provided onlj'^ that provisions for the waiver of 
premiums might be incorporated in policies of life insurance for the benefit 
of the insured. By St. 1929, c. 235, the benefits of such provision for waiver 
of premiums were authorized to be made applicable to "annuity or pure 
endowment contracts." The words "annuity or pure endowment con- 
tracts" were inserted in the provisions of the section and the words "or 
the holder as the case may be" were inserted after the phrase, which had 
previously stood alone, "the insured or either of them" so that the section 
then read as it does now in the above-quoted portion. 

In my opinion, it is api)arent that the Legislature by so using the word 
"holder" in connection with the phrase "as the case may be," intended 
that "holder" should be read only with relation to "annuity or pure 
endowment contracts" and did not intend that it should signify the 
"holder" of a policy of life insurance. The section as it now stands 
indicates a legislative intent that provisions for the waiver of premiums 
might be made only for the benefit of those insured under life pohcies or 
for the benefit of those who are holders of annuities or pure endowment 
contracts. 

If it be thought that the language of section 24 is ambiguous or if it be 
desired to e.\tend the benefits of premium waivers to others than those 



88 P.D. 12. 

who are the insured under pohcies of hfe insurance, resort should be had 
to the General Court for clarification or enlargement of the existing 
provisions of the statute. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Insurance — Employees of Insurance Company — Contributory Pension 

System — Commissioner. 

Feb. 25, 1946. 

Hon. Charles F. J. Harrington, Commissioner of Insurance. 
Dear Sir: — I am in receipt from you of the following letter: 

"Three domestic mutual insurance companies which pool their business 
have submitted to this Department, as required by G. L., c. 175, § 36, a 
Contributory Retirement Plan covering such employees as are engaged 
in handling automobile risks. The Plan provides benefits for all of the 
employees of two of the companies but does not provide coverage for all 
of the employees of the third company some of whom are employed in 
connection with other lines of insurance and whose place of employment 
is at a point other than that at which the employees covered by the Plan 
are employed. 

The pertinent portions of the applicable statute read as follows : 

'Any such (domestic) company, with the written approval of the com- 
missioner, may also establish an employee's savings fund, contributory 
pension system or association for the benefit of its aged or disabled em- 
ployees, to which fund, system or association both the employees and the 
company shall contribute. . . . The term "employee" as used in this 
section shall include an officer.' 

Will you please advise us as to the following: 

1. Is the approval of the Commissioner referred to in the statute a 
ministerial act permitting no exercise of discretion? 

2. If the answer to the foregoing question is in the negative, what 
standards should guide the Commissioner in the exercise of his discretion 
when acting under section 36? 

3. Is the Commissioner authorized under this statute to approve a 
Contributory Pension Plan which an insurance company proposes to 
fjstablish if such plan does not provide benefits for all of the employees of 
the company on account of differences in the nature of employinent or 
of the location of the employee? 

4. May the Commissioner disapprove a Plan such as that outlined 
above if in his judgment it is discriminatory in that certain employees of 
the company are not included in the coverage on account of differences in 
the nature of employment or of the location of the employee?" 

I answer your first question in the negative. 

In answer to your second question I must state that the Attorney 
General, following a long line of practice and procedure of this depart- 
ment, does not attempt to set up the standards which should guide officials 
in exercising discretionary authority. Sound judgment, good business 
sense, and actuarial knowledge will suggest the details which the com- 
missioner should take into consideration in giving or withholding his 
approval of any particular contributory pension system. 



P.D. 12. 89 

In answer to your third and fourth questions I advise you that since 
the apphcable statute does not specifically require the inckision of all the 
employees of a com])any in a contributory pension system, the fact that a 
given plan omits from its sweep some of the employees of a company "on 
account of differences in the nature of employment or of the location of 
the employee" does not of itself require the commissioner to refrain from 
approving the plan, and the mere fact of such omission would not justify 
the conmiissioner in refusing to give his approval. 

\'ery tridy yours, 

Clahence a. Barnes, Attorney (leneral. 



Chiropody — Approval of School. 

Feb. 25, 1946. 
]\lrs. jMae Manning, Director of Registration. 

Dear Madam: — You have submitted to me a request for my opinion 
as to whether the Board of Registration in Chiropody, having once ap- 
proved a "school of chiropody (podiatry)" under the provisions of G. L. 
(Ter. Ed.) c. 112, v^ 16, may thereafter by vote withdraw its approval. 

In my opinion the board may not withdraw such approval. 

The Legislature in said section 16 has established in detail a system by 
which a school may seek to obtain the board's approval. The Legislature 
has not specifically authorized the board to withdraw the approval, once 
such approval has been given either by the board or by the Superior Court 
acting upon petition when the board has declined a request by a school 
for approval. No implication of a grant of authority to withdraw an 
approval appears to exist as a corollary of such power to approve, in view 
of the whole context of said section 16, which shows a legislative intent 
to protect a school by direct resort to the courts against the possibility of 
improper disapproval by the board. The Legislature, in enacting the 
provisions of said section 16, appears to have contemplated that, although 
there might be several refusals to approve a school, when such approval 
was at last given it should be final. Consequently, when the board has 
approved a school it has exhausted its authority with relation to granting 
or withholding approval and may not act further in the matter. 

In so far as an opinion of one of my ])redecessors in office given to the 
then Director of Registration on January 21, 1943, expresses views at 
variance with those which I have set forth herein, I do not concur with it. 

Very truly yours, 

Clarence A. Barnes, Attorney (Heneral. 



Metropolitan District Water Supply Commission — I'se of Lands Acquired. 

Feb. 26, 1946. 
Metropolitan District Water Supply Commission. 

Gentlemen: — Under date of February 21, 1946, you have asked as 
to whether lands acquired by the commission, either by purchase or 
eminent domain, used for reservoirs or watersheds, can be used for any 
other use outside the purpose or purposes for which they were originally 
taken. 



90 P.D. 12. 

Generally, I must answer your question in the negative, with two 
possible conditions upon which another use may be granted. St. 1926^ 
c. 375, § 7, empowers the commission to sell at public or private sale, 
exchange or lease any property, both real and personal, or any easement 
or water right which in the opinion of the commission is no longer needed 
for the purposes of that act. 

G. L. (Ter. Ed.) c. 131, § 89, provides that authorities or persons having 
control and charge of a State reservation, park, common, or any land 
owned or leased by the Commonwealth, or any political subdivision thereof, 
or any land held in trust for public use, may, with such limitations as they 
may deem advisable, authorize persons to hunt within said boundaries 
any of the unprotected birds specifically named in section 53 of said chap- 
ter 131, or fur-bearing mammals mentioned in section 68 of the chapter, 
or foxes, weasels or wildcats. In that section there is contained this 
language : 

"Nothing in this section shall be deemed to prohibit the metropolitan 
district commission from permitting the hunting of any bird or mammal 
during the legal open season on the same in any area under its control." 

Very truly yours, 

Clarence A. Barnes, Attorney GeneraL 



Metropolitan District Commission — Lease of Lands Acquired. 

Feb. 27, 1946. 
Metropolitan District Commission. 

Dear Sirs: — You have asked my opinion as to whether your commis- 
sion may sell or lease a certain parcel of land "bounded by Brookline 
Street, Memorial Drive, Granite Street and Magazine Street." 

I am advised that this parcel is a part of land acquired by the city of 
Cambridge in 1897 for park purposes and subsequently conveyed by it 
to the Commonwealth under authority of St. 1920, c. 509, without con- 
sideration, for park purposes. 

It was provided in said chapter 509 that upon conveyance of the said 
land to the Commonwealth the Metropolitan District Commission was to 
have all the powers and duties in respect to it which were conferred upon 
the older Metropolitan Park Commission by St. 1893, c. 407. Among the 
rights so conferred, a limited right to dispose of lands had been conferred 
upon the latter commission by St. 1895, c. 450, § 2, in the following 
language : 

"Said commission, with the concurrence of the majority of the board 
of park commissioners, if any, in the city or town in which the property 
is situated, may at any time sell . . . any portion of the lands or rights 
in land, the title to which has been taken or received or acquired and paid 
for by it, and may . . . execute and acknowledge a deed thereof, ... in 
the name and behalf of the Commonwealth ..." 

The Metropolitan Park Commission had been authorized by section 3 
of said chapter 450 to accept and maintain as a portion of the public 
reservations any lands given to the Commonwealth which lay within the 
limits of the Metropolitan Parks District or immediately contiguous to 
them. 



P.D. 12. 91 

The provisions of said section 2 as ai:)plicable to your commission are 
now embodied in G. L. (Ter. Ed.) c. 92, § 85, from which it appears that 
your commission has authority, with the concurrence of municipal park 
commissioners, to sell any i)ortion of lands "the title to which has been 
taken or received or acquired and paid for hy it" for the i)urposes set forth 
in sections 33 and 55 of said chapter 92, which are for i)ublic reservations 
of land used for park purposes and boulevards. 

The authority given by said cluipter 450, section 2, and by said chapter 
92, section 85, to the conunission to sell lands devoted to i)ark or reserva- 
tion purposes is specifically limited to the sale of such lands which have 
been received or acquired and paid for by the Metropolitaii District 
Commission or the Aletropolitan Park Commission, as the case may be. 
It appears to have been the intent of the Legislature, as expressed in said 
sections 2 and 85, to except from the power to sell those lands which are 
received by way of gift and which would ordinarily be, as in the instant 
case, conveyed by the givers for the express purpose of having them devoted 
to park or reservation usages for the benefit of the general public. 

It follows that since the land in cjuestion was not paid for hy the Metro- 
politan Park Commission it may not now be sold by your commission. 

No authority is conferred upon your commission to lease such land for 
the purpose of having a high school building erected thereon by a private 
person or corporation, for such a pin-pose would not be one consistent 
with the purposes for which the land is to be used under the terms of the 
gift and the provisions of G. L. (Ter. Ed.) c. 92, ^ 33, concerning park and 
reservation land, as specified in section 83 of said chapter 92. 

^'ery truly yours, 

Clarence A. Barnes, Attorney General. 



Board of Registration of Barbers — Qualifications of Members. 

Mar. 4, 1946. 

1 1 is Excellency the Governor and the Honorable Council. 

Dear Sirs: — I am in receipt from your Executive Council of the fol- 
lowing comnumication : 

" I have been directed by the Governor and Council to request an opinion 
from you as to whether or not Charles J. Daggett, 23 Maple Street, Spring- 
field, nominated by His Excellency as a member of the Board of Registra- 
tion of Barbers is qualified under Chap. 13, G. L., Sec. 39 to hold such 
an appointment. 

Mr. Daggett is a licensed barber and has been for many years. For the 
past twelve years, he had been employed as an inspector for the Board of 
Barbers, during which time he had practised his profession in his spare 
time, especially on week-ends and during vacation periods. 

For a period of twelve years prior to his appointment as an inspector, 
he worked full time at his profession." 

G. L. (Ter. Ed.) c. 13, § 39, with relation to the necessary qualifications 
to be possessed by members of the Board of Registration of Barbers, pro- 
vides in its pertinent parts as follows : 

"There shall be a board of registration of barbers ... to consist of 
three members, citizens of the commonwealth, each of whom shall he a 



92 P.D. 12. 

practising barber and shall have had five years of practical experience as 
a barber in this commonwealth prior to his original appointment and shall 
have been actively engaged in the occupation of barbering in this cornnionwealth 
for not less than six ynonths during the twelve months immediately prior to 
such appointment, and at least one of whom shall be a journeyman barber." 

It is also provided in section 40 of said chapter 13 that: 

"The board may appoint investigators who shall be citizens of the com- 
monwealth, shall have had at least five years continuous practical experi- 
ence as barbers and are registered under section eighty-seven G of chapter 
one hundred and twelve." 

The Attorney General does not pass upon questions of fact. 

It would appear from such facts as are set forth in said communication 
that the inspector in question was, from the fact that he had been appointed 
as an inspector under the provisions of said section 40, a citizen of the 
Commonwealth, that he had four years' practical experience as a barber 
and so would appear to be qualified for the office of a member of the said 
board; provided that he also possessed the further qualification required 
for the holder of such office, namely, that he had "been actively engaged 
in the occupation of barbering in this commonwealth for not less than six 
months" during the past year. 

Whether or not such inspector was "actively engaged in the occupation 
of barbering" during the past year is a question of fact for your determina- 
tion. If he was so engaged it would appear that he possessed the neces- 
sary qualifications established by the Legislature for a holder of the office 
in question. If he was not so engaged it cannot be said that he possesses 
all of such necessary qualifications. 

Your communication to me states, in regard to this particular matter, 
only that the said inspector had been employed as an inspector for the 
past twelve years "during which time he had practised the barbering pro- 
fession in his spare time, especially on week-ends and during vacation 
periods." 

As to how much time ofT an inspector of barbering is allowed from his 
work for the Commonwealth I am not advised, nor am I informed as to 
the circumstances under which this inspector practised his profession dur- 
ing the past year in such spare time, whether regularly at a fixed place of 
business or in some other manner, nor as to the actual amount of time 
which he devoted "for not less than six months during the twelve months" 
last past to the occupation of barbering as distinguished from the duties 
of an inspector of barbering. Information as to such matters would appear 
to be necessary for your determination of the facts with regard to the 
inspector's relation to the occupation of barbering during the past year 
while at the same time performing his official duties. 

While it cannot be said as a matter of law that under no circumstances 
could such an inspector while performing his official duties be "actively 
engaged in the occupation of barbering," yet the proof of such active en- 
gagement in the said occupation, during incumbency of an official position 
entailing not inconsiderable duties, would appear to require a showing of 
somewhat unusual factual considerations. 

Very turly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 93 

Department of Conservation — lionoval of Slash. 

AIak. 5, 1946. 
Hon. A. K. Slopeu, Commissioner of Conservation. 

Dear Sir: — In a recent letter with relation to G. L. (Ter. Ed.) c. 48, 
§ 16, as amended by St. 1943, c. 103, in connection with the duties of the 
State Forester under sections 19 and 20 of said chapter 48 with regard to 
slash and the institution of criminal jiroceedings for failure to remove the 
same, you have asked my opinion upon four questions of law as follows: 

"1. Does this law impose responsibiHty on the owner, lessee, or occu- 
pant of lands only? 

2. If a person buys standing timber from a landowner and cuts the 
timber, does this require him to remove the resulting slash? 

3. If the answer to our second question is in the affirmative can the 
Division of Forestry elect to prosecute either the owner, lessee, tenant or 
occupant of the land or the person who purchased the timber for cutting? 

4. In the event that title to the land passes after the timber is cut and 
before the slash is removed, can the new owner be held responsible even 
though he neither cut nor permitted the cutting of wood or timber on that 
land?" 

Said section 16 reads: 

"Every owner, lessee, tenant or occupant of lands or of any rights. or 
interests therem, except electric, telephone and telegraph companies, who 
cuts or permits the cutting of brush, wood or timber on lands which border 
upon woodland of another or upon a highway or railroad location, shall 
dispose of the slash caused by such cutting in such a manner that the same 
will not remain on the ground within forty feet of any woodland of another, 
or of any highway or railroad location." 

1. In answer to your first question, I advise you that the statute by its 
explicit words imposes certain duties upon the "owner, lessee, tenant or 
occupant of lands" and upon the owner, lessee, tenant or occupant of 
"any rights or interests" in lands. 

2. I answer your second question in the affirmative. 

I am of the opinion that the Legislature intended to include within the 
meaning of the phrase "owner ... of lands or of any rights or interests 
therein" the buyer of standing timber. 

In the original statute from which said section 16 is derived, St. 1914, 
c. 101, § 1, the words "and every owner of stumpage" were set forth after 
the phrase "every owner, tenant or occupant of land." Stumpage is often 
properly employed as a matter of law as meaning timber standing in the 
tree on land (38 C. J. 145 N. 26) and it was apparently so employed by the 
Legislature in said St. 1914, c. 101, § 1. 

It is plain that as the statute stood in 1914 not only was tlie owner of 
land as such required to care for slash, but the owner of timber in standing 
trees was also required to care for the slash resulting from cutting the 
trees. 

In 1920, the Legislature, acting upon a report of the State Forester, 
which suggested that the existing provisions for the removal should be 
made more effectual (1920 House Document 395), repealed said chapter 
101 and enacted a similar but more extensive statute (St. 1920, c. 308). 



94 P.D. 12. 

The first section of said chapter 308 amended section 1 of said St. 1914, 
c. 101, into the present form of said section 16 of G. L. (Ter. Ed.) c. 48 by 
dropping out the word "stumpage" and using in place thereof the phrase 
"owner , . . of lands or of any rights or interests therein" as now appear- 
ing in said section 16. 

In construing the phraseology of a statute it is permissible to consider 
the wording of an earlier statute dealing with the same subject matter, as 
well as the legislative history of the statute in question. Ham v. Boston 
Board of Police, 142 Mass. 90; Hamilton v. Boston, 14 Allen 475; Holbrook 
V. Bliss, 9 Allen 69, 75. 

I am of the opinion that in employing the phrase "any rights or interests " 
in lands in place of the word "stumpage" previously used, the Legislature 
did not intend to lessen the classes of persons who were to be required to care 
for slash but rather to increase them in view of the said State Forester's 
report which was before the General Court, so that it intended that the 
owner of standing timber should be comprehended within the broad sweep 
of the words "owner ... of any rights or interests" in lands. 

I am not unaware of the fact that in Massachusetts, unlike the majority 
of the States of the Union (Brown v. Bishop, 105 Me. 272), our Supreme 
Judicial Court, in various opinions dealing with the rights of vendors and 
vendees of timber, has said that with regard to such rights the general rule 
is that a contract for the sale of standing timber to be cut is construed as 
passing an interest in the trees when they are severed from the land rather 
than as granting a right or interest in land (Fletcher v. Livingston, 153 
Mass. 388, 390; Hanifin v. C. & R. Construction Co., 313 Mass. 651, 658). 
I am of the opinion, however, by reason of the considerations which I have 
set forth herein, that the Legislature did not use the phrase "owner . . . 
of any rights or interests " in a narrowly technical sense, but intended to 
include within its meaning the owner of standing timber as distinguished 
from the owner of land as such, precisely as it had done in St. 1914, c. 101, 
§ 1, by the use of the phrase "and every owner of stumpage." 

3. The considerations which I have set forth in answering your second 
question make it necessary for me to answer your third question in the 
affirmative. 

4. I answer your fourth question to the effect that a new owner of land 
who acquired title after timber had been cut on it but before slash had 
been removed cannot be liable for a failure to remove such slash under the 
provisions of said section 16, since he did not cut the timber nor permit it 
to be cut. The language of said section 16 is unambiguous in this respect. 
The practical importance of provision for the care of the slash by the 
buyer of the timber who has cut or permitted the cutting of the trees 
becomes apparent when there is a change in the ownership of the land itself 
such as you have described in your fourth question. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



State Boxing Commission — Authority to Regulate Simultaneous Boxing 

Exhihitions. 

Mar. 6, 1946. 
State Boxing Commission. 

Dear Sirs: — I am in receipt from you of a letter asking my opinion 
upon two questions of law in connection with the authority of your board 



P.D. 12. 95 

to deal with the matter of conflicting dates for boxing exhibitions in a 
city under the provisions of G. L. (Ter. Ed.) c. 147, §$ 32 to 51, which is 
the statute regulating licensed boxing matches. 
These questions read: 

"Will you please advise the Massachusetts State Boxing Commission 
as to whether or not there is anything in sections 32 to 47 of chapter 147, 
that would permit : — 

(1) The Alassachusetts State Boxing Commission to regulate this situ- 
ation so that two clubs may not hold boxing exhibitions on the same night. 

(2) If this is not specifically covered in the sections referred to — can 
the Massachusetts State Boxing Commissioner, by authority of law, 
adopt a rule that would regulate this condition?" 

In answer to your questions, I advise you that the pertinent statute 
does not itself contain any provisions specifically relating to the regula- 
tion or prohibition of conflicting dates for boxing exhibitions. Neverthe- 
less, your commission has been given broad powers to make rules for the 
administration of the statute (G. L. (Ter. Ed.) c. 147, § 46) under which 
you have already regulated many details concerning boxing matches. I 
see no reason why you may not lawfully, by an appropriate rule, regidate 
the matter of conflicting dates for licensed boxing matches or exhibitions. 
Such a rule must, of course, be approved by the Governor and Council, as 
provided in said section 46, before it can become effective. 

The mere fact that at the present time two or more licensed boxing 
matches are held by various clubs at the same time would not appear to 
constitute "an act or offense detrimental to the pubhc interest" for which 
a license might be revoked under section 42 of said chapter 147, as you 
seem to suggest in the paragraph of your letter which follows the said 
questions. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Milk Control Board — Authority of State Auditor to Examine Various 

Accounts. 

Mar. 8, 1946. 
Milk Control Board. 

Dear Sirs: — You have asked my opinion as to whether or not certain 
records or documents of the Milk Control Board should be made available 
by your board to the State Auditor for the purpose of an audit of the 
accounts of your board by the Auditor pursuant to the provisions of 
G. L. (Ter. Ed.) c. 11, § 12, which provide as follows: 

"The department of the state auditor shall aimually make a careful 
audit of the accounts of all departments, offices, commissions, institutions 
and activities of the commonwealth, including those of the income tax 
division of the department of corporations and taxation, and for said 
purpose the authorized oflRcers and employees of said department of the 
state auditor shall have access to such accounts at reasonable times and 
said department may require the production of books, documents and 
vouchers, except tax returns, relating to any matter within the scope of 
such audit. The accounts of the last named department shall be subject 
at any time to such examination as the governor and council or the gen- 



96 P.D. 12. 

eral court may order. Said department shall comply with any written 
regulations, consistent with law, relative to its duties made by the gover- 
nor and council. This section shall not apply to the accounts of state 
officers which the director of accounts of the department of corporations 
and taxation is required by law to examine. The department of the state 
auditor shall keep no books or records except records of audits made by 
it, and its annual report shall relate only to such audits." 

Your letter separates the documents and records into four classes, 
which you have enumerated and described, and I will likewise deal with 
each separately: 

"1. A detail list of the milk dealers who owe $280,829.81 to producers 
which sum of $280,829.81 as shown on page 5, paragraph 5, of the report 
submitted to His Excellency Leverett Saltonstall, Governor of the Com- 
monwealth, by the Commission on Administration and Finance, under ■ 
date of January 12, 1944." 

It is my opinion that the data referred to in paragraph 1 need not be 
made available by your board to the Auditor. The report of the Commis- 
sion on Administration and Finance with reference to this data states 
that for the period covered by the committee's investigation "551 milk 
dealers of Massachusetts owe producers $280,829.81 underpayments . . ." 
This item is related to the discharge of the duties of the Milk Control 
Board in its supervision and regulation of the milk industry pursuant 
to the Milk Control Act. An examination of this list by the Auditor has 
no relation to the verification of amounts received by the Milk Control 
Board in order to check disbursements made by said board against them. 
Such an examination would seem to be directed to an inspection of the 
status of accounts between milk dealers and producers and would appear 
to be an attempt to make a complete and independent investigation of 
conditions which might be disclosed in the course of such an examination, 
rather than an auditing of the accounts of the Milk Control Board, which 
is intended and provided for by chapter 11, section 12. 

"2. A revised and more recent detail list of dealers who owe monies to 
producers which was prepared by the Milk Control Board." 

It is my opinion that the list referred to in paragraph 2 need not be 
made available to the Auditor for the same reasons stated with reference 
to the data requested in paragraph 1. 

"3. Permission for the auditor to have access to the so-called 'Milk 
Dealers Audit Ledger.' " 

It is my opinion that the "Milk Dealers Audit Ledger," which I under- 
stand indicates the amount of money due from dealers to producers, need 
not be made available to the Auditor, for the same reasons stated with 
reference to the data requested in paragraph 1. 

"4. A list of audits which were assigned to the Charles F. Rittenhouse 
Co., Certified Public Accountants, Boston, Mass." 

It is my opinion that the data described in paragraph 4 should be made 
available to the Auditor, since it indicates expenditures by the Milk Con- 
trol Board of funds received by it, and which expenditures should be made 
solely for the purpose of carrying out the provisions of the Milk Control 



P.D. 12. 97 

Act. The Auditor is entitled to examine and audit the expenditures by 
the Milk Control Board of any funds received by it op appropriated to it 
by the Commonwealth. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Metropolitan District Commission — Charge to Towns for Water in 1946. 

Mar. 11, 1946. 
Metropolitan District Comm,ission. 

Gentlemen: — In a recent letter you have asked me to rule on the 
charge to member towns under the provisions of St. 1945, c. 587. You 
have stated that member towns have already been notified that the cost 
of water for 1946 would be a flat rate of $40 per million gallons. 

This notification is based upon a correct interpretation of the statutes 
governing such a charge. 

G. L. (Ter. Ed.) c. 92, ^ 26, as amended, indicates that if the cost of 
producing the metropolitan water supply exceeds the amount of S40 per 
million gallons, this deficit is made up by apportionment upon the cities 
and towns of the district under said section 26. However, this chapter 
and section was last amended by St. 1945, c. 587. 

By section 3 of said chapter 587, there is inserted a section 26A in G. L. 
(Ter. Ed.) c. 92, by which it is provided that: 

"Beginning with the year nineteen hundred and forty-six the price for 
water furnished by the metropolitan water district to non-member towns 
and to member towns shall be fixed at forty dollars per miUion gallons, 
less any sums to be credited." 

Section 26A, as inserted, further provides in substance, that if there 
shall be a deficit, the same shall be provided for by the sale of bonds of 
the Commonwealth. By section 4 of said chapter 587, it is provided that 
the provisions of said section 26 shall apply to "the assessment for the year 
nineteen hundred and forty-five ^ 

Reading the quoted portions of said sections 3 and 4 together, it would 
appear that it was the intent of the Legislature that the provisions of said 
section 26 were not to have any application except to the assessment for 
1945. Unless said sections 26 and 26A be so construed in the light thrown 
upon them by said section 4, they would seem to be inconsistent, and 
statutes upon well settled principles of law are to be read, if possible, so 
as to avoid inconsistency. 

Accordingly, the price of water to members and municipalities eligible 
for membership in 1946, should be $40 per million gallons, measured by 
the consumption for the preceding year, as provided in said section 26A. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



98 , P.D. 12 

Contracts — Bids — Authority to Reject. 

Mar. 13, 1946. 

Hon. Raymond W. Coburn, Acting Commissioner of Public Works. 

Dear Sir: — With relation to a bid for proposed shed alterations at 
the New Bedford State Pier, which, as I am informed, your department 
rejected as not complying with the applicable statutes, you have in effect 
asked my opinion as to whether such action was proper as a matter of law. 

I advise you that such action was proper. 

It appears, from the information which you have given me and from 
the form of the bid which you have laid before me, that the low bidder 
did not insert in his bid the name of the subcontractor on an item for 
electrical alterations, although quoting a price against such item and in- 
serting the names of other subcontractors on other items. 

The proposed form furnished bidders on this contract and filled out by 
them was in accord with the provisions of G. L. (Ter. Ed.) c. 149, § 44C, 
but on page 2 of the proposal, where such bids were set forth as returned 
by the bidder in question under Item B-3, the particulars were set forth 
and the bidder wrote the unit price and amount bid in dollars and cents 
but did not supply in the space marked in connection with Item B-3 
"Name of Sub-bidder" the name of any sub-bidder. 

It is apparent from the whole context of said section 44C that it was 
the intent of the Legislature to require the names of subcontractors to be 
set forth in proposals. Subdivisions (B) and (D) of said section 44C refer 
to subcontractors as those ''designated" or "named" in the proposed form 
by the general contractor and a list of sub-bidders is expressly called for 
by the form established by subdivision (F) (d) of said section 44C. No 
authority is vested in the department to waive the omission of the name 
of a subcontractor in a proposal and to award the contract to the bidder 
so omitting such name; rather, in such a situation the department prop- 
erly must do as you have already done — treat the bid as not complying 
with the statutes. In this connection it is immaterial that the bidder 
claims that the omission of the name is due to oversight. 

I return herewith the proposed form which was left with me. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Board of Examiners of Plumbers — Buildings Owned by the Commonwealth 
— Rules — Town Regulations of Plumbing. 

Mar. 13, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam : — On behalf of the Board of Examiners of Plumbers 
you have asked my opinion on the following eight questions : 

Your first question is: 

"1. Does Chapter 142, General Laws, apply to plumbing under Rules 
Relative to Plumbing in Buildings Owned and Used by the Common- 
wealth and formulated under authority of section 21, chapter 142, General 
Laws?" 



P.D. 12. 99 

All the sections contained in chapter 142 refer to cities and towns, with 
the exception of section 21, which specifically refers to plumbing work in 
buildings owned and used by the Commonwealth. The i)rovisions of 
section 21 are: 

"The examiners shall formulate rules relative to the construction, alter- 
ation, reparir and inspection of all phunbing work in buildings owned and 
used by the commonwealth, sulDJect to the approval of the department 
of public health, and all plans for plumbing in such buildings shall be 
subject to the approval of the examiners." 

This implies an intention of the Legislature to exclude from the provi- 
sions of all sections of chapter 142, with the exception of section 21, plumb- 
ing work in buildings owned and used by the Commonwealth. Chapter 
142 in general provides laws with relation to plumbing in the cities and 
towns. Section 21 of said chapter states the laws with relation to plumbing 
in buildings owned and used by the Commonwealth, which are the rules 
made under the said section 21. 

I am, therefore, of opinion that, with the exception of section 21, the 
other sections of chapter 142 do not apply to buildings owned or used by 
the Commonwealth. (See 1932 Op. Atty. Gen. 86.) 

Your second question is : 

"2. If the answer to the preceding question is 'no', can the Board of 
State Examiners of Plumbers incorporate in said rules the following: *No 
person shall engage in the business of a master plumber or work as a jour- 
neyman, unless he is lawfully registered or has been licensed by the Ex- 
aminers as provided in chapter 142, General Laws?" 

The examiners are required by section 21 to formulate rules relative to 
plumbing work in buildings owned and used by the Commonwealth, sub- 
ject to the approval of the Department of Public Health. Pursuant to 
this provision of the law, it is my opinion that the examiners, with the 
approval of the Department of Public Health, could incorporate in such 
rules the following: 

"No person shall engage in the business of a master plumber or work 
as a journeyman, unless he is lawfully registered or has been licensed by 
the Examiners as provided in chapter 142, General Laws." 

Your third question is: 

"3. Can a town board of health legally prescribe regulations for the 
materials, construction, alteration and inspection of all pipes, tanks, fau- 
cets, valves and other fixtures by and through which waste water or 
sewage is used and carried unless said regulations are also a bv-law of 
the town?" 

In my opinion, a town which under the provisions of section 2 of said 
chapter 142 is not subject to the requirements of chapter 142 may, through 
its board of health, legally regidate the installation of plumbing within 
the town and make all reasonable requirements incidental thereto with 
reference to fixtures and methods of construction. 

Your fourth question is : 

"4. If there is a building inspector in a city or town subject to chapter 
142, General Laws, but not subject to sections 8 and 9 of said chapter, 



100 P.D. 12. 

does the board of health have the authority to appomt pkimbing in- 
spectors and/or approve plans for plumbing which is subject to inspec- 
tion?" 

Section 11 of chapter 142 provides: "The . . . inspector of buildings, 
if any, otherwise the board of health, of each city and town, shall . . . 
appoint . . . one or more inspectors of plumbing ..." In my opinion, 
if such a building inspector of a city or town subject to chapter 142 has 
not appointed a plumbing inspector, the board of health has specific 
authority to do so. The board of health in such case, with the plumbing 
inspector, would have full supervision of the installation of plumbing, 
including approval of plans for plumbing work. 

Your fifth question is : 

"5. If a town adopts plumbing regulations through a regular town 
meeting, and no specific reference is made that the action of the voters in 
adopting said regulations was through section 13, chapter 142, General 
Laws, does it necessarily follow that said town is automatically subject 
to sections 1, 3, 6 and 7 and sections 11 to 16 inclusive, as specified in 
section 2, chapter 142, General Laws?" 

The town referred to in your question may or may not be subject to 
chapter 142. If it is not, it may properly enact its own plumbing regula- 
tions. If the town is subject to chapter 142, it may, through its board of 
health, petition for the formulation of rules relative to plumbing by the 
examiners under section 8, or the town may by vote of its inhabitants 
under section 13 enact its own plumbing regulations. In my opinion, the 
instance referred to in your question would have to be dealt with accord- 
ing to the actual facts of the case. If there is any option open to the town, 
the vote of the town should disclose its choice in order that there be no 
confusion as to what the people intended by their vote at town meeting. 

Your sixth question is : 

"6. If the answer to the foregoing question is 'no', can said town 
legally appoint a plumbing inspector and require that licensed plumbers 
only can install plumbing work in said town?" 

In my opinion, a town, acting through its officers, can appoint its own 
plumbing inspector and can by regulation or ordinance require that only 
plumbers licensed under chapter 142 can install plumbing in said town. 

Your seventh question is : 

"7. Does the last sentence of section 2, chapter 142, General Laws, make 
it optional that a town, regardless of size of population, enact a by-law as 
prescribed in section 13, chapter 142, General Laws, if said town never 
'accepted corresponding provisions of earher laws' as set forth in sec- 
tion 2, chapter 142, General Laws?" 

Section 2 of chapter 142 states the application of the various sections 
of the chapter. The last sentence of this section states: 

"Sections one, three, six and seven and sections eleven to sixteen, in- 
clusive, shall apply to all towns which by vote of their inhabitants accept 
said sections or have accepted corresponding provisions of earher laws, 
and said sections, except section thirteen, shall apply to all towns which 
accept rules formulated by the examiners under sections eight and nine 
or have accepted them under corresponding provisions of earlier laws." 



P.D. 12. 101 

It is my opinion that if a town has not aecopted corresponding provisions 
of section 13 nnder earlier laws, and the town is subject to the provisions 
of section 13, then the town has the option of petitioning; the examiners 
under section 8 for the formidation of rei2;ulations relative to plumbins; 
or of adopting its own plumliinu- i-oiiulations by ordinance or by-law under 
section 13. 

Your eighth question is : 

"8. Has the Board of State Examiners of Plumbers the authority to 
restrict the issuance of perinits to perform plumbing to master plumbers 
only in Rules relative to Plumbing formulated by said Board under sec- 
tions 8 and 9. chapter 142, General Laws?" 

Sections 8 and 9 of chapter 142 apply to the fornudation of plumbing 
rules and regulations by the examiners for towns which petition for them. 
These sections, together with all sections of chapter 142, concern the in- 
stallation and inspection of plumbing work and materials by those quali- 
fied to do so. Section 1 defines a master plumber and a journeyman 
plumber, a practical plumber and a registered plumber. Section 3 pre- 
cludes anyone from working as a master plumber or journeyman plumber 
unless he is registered or licensed vmder chapter 142. In my opinion, the 
examiners have no authority in formulating ndes for a town under sec- 
tion 8 to provide that only master ]3lumbers may obtain plumbing permits. 

Very truly yours, 

Clarence A. Barnes, Attorney deneral. 



Military or Naval Service — Merchant Marine — State Employee. 

Apr. 2, 1946. 

Hon. Thomas H. Buckle^', Chairman, Commission on Administration and 

Finance. 

Dear Sir: — In reply to your letter of March 20th, I advise you that 
an employee of the Commonwealth who leaves his employment for the 
purpose of serving and who does serve in the "Merchant Marine" is not 
one who leaves the service of the C'omnion wealth for the purpose of enter- 
ing the "military or naval forces of the United States," as the quoted words 
are used in St. 1941, c. 708, § 1 and 2, nor as used in section 24 of said 
chapter 708. 

Service in the "Merchant Marine" is service under the War Shipping 
Administration, an agency of the United States established by an Execu- 
tive Order of the President of February 7, 1942. It is apparent from the 
provisions of such Executive Order and of Acts of Congress implementing 
the same of March 24, 1943 (50 U. S. C. A., .HI 138-1295), and of June 
23, 1943 (50 F. C. A., Appendix 62), that such service is not service in 
the army or navy of the United States and, although a person in such 
service is an employee of the Federal Government for certain purjioses, 
as described in said acts, he is not a member of the "navnl forces" of the 
United States. 

Very truly yours, 

Clarence A. Barnes, Attorney General 



102 P.D. 12. 

Approving Authority of Schools for Nurses and Attendants — Examinations. 

Apr. 2, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam: — On behalf of the Approving Authority of Schools for 
Nurses and Schools for Attendants you have asked my opinion. 

"as to the eligibility for license by examination of attendants who gradu- 
ated from Schools for Attendants previous to the approval of said schools 
by the Approving Authority." 

If by the above-quoted language in the request for my opinion you 
refer to attendants who were graduated prior to October 1, 1944, from 
schools which have not been approved by the said Approving Authority 
and who did not take an examination under St. 1941, c. 620, iJ§ 7 and 8. 
I must advise you that such attendants cannot now under the terms of 
G. L. (Ter. Ed.) c. 112, ^ 74A, take the examination, which is a prereq- 
uisite to a license, until they are graduated from an approved school. 

If it is felt that the provisions of said section 74A, read with the provi- 
sions of St. 1941, c. 620, ^?j 7 and 8, have worked an unreasonable hard- 
ship upon a body of attendants who were graduated, before the provisions 
of existing law became effective, from unapproved schools, resort should 
be had to the Legislature for relief. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Bridge — Duty of Metropolitan District Commission to Maintain Neponset 

Bridge. 

Apr. 4, 1946. 

Hon. William T. Morrissey, Chairman, Metropolitan District Commis- 
sion. 

Dear Sir : — You have asked my opinion as to whether it is the duty 
of yom- commission to maintain the paved area between the street car 
rails on Neponset Bridge. 

I am of the opinion that such is the duty of your commission. 

Gen. St. 1915, c. 300, under the authority of which said bridge was 
constnicted, provided for an assessment upon the cities whose highways 
crossed the bridge and upon the street railway having a location on the 
bridge at its completion for payment on serial construction bonds. Sec- 
tion 10 of said chapter 300 provided that after completion the care and 
control of the bridge should vest in the Metropolitan Park Commission 
to whose duties your commission has in this respect succeeded, and in 
section 11 the Park Commission was charged with the duty of maintain- 
ing and operating the bridge for the purpose for which the highway cross- 
ing it may be used. No provision appears in said chapter 300 placing 
the dut}^ of repairing the area between its rails upon the street car com- 
pany having a location on the bridge. The context of said chapter 300 
would appear to indicate an intent upon the part of the Legislature to 
place the duty of repair and maintenance of all parts of the bridge upon 
the commission. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 103 

State Examiners of Plumbers — Department of Public Safety — Regulations 
and Rules of both Bodies. 

Apr. 8, 1946. 
Mrs. Mae Manninc, Director of Registration. 

Dear Madam : — In behalf of the State Examiners of Plumbers you 
have asked the following question: 

"Does Paragraph 41 (local ordinances) in Part 2, Section 6 of the 
Regulations of the Department of Public Safety, Form B-1, (relative to 
schoolhouses) give the State Board of Examiners of Plumbers the author- 
ity to require a licensed plumber to install plumbing in schoolhouses 
erected under this section and to inspect such plumbing work installed." 

G. L. (Ter. Ed.) c. 143 was amended by St. 1943, c. 544, as a result of 
the Cocoanut Grove fire and in general the amendments had to do \\ith 
the granting of great authority to the Department of Public Safety to 
make rules and regulations relative to the construction of buildings in 
which tlie public have a right of access, which includes the construction 
of schoolhouses. 

The regulations formulated by the Department of Public Safety are 
now contained in Form B-1 and state in Part II, section 6, paragraph 41, 
tlie following: 

"Local Ordinances: Except as otherwise specified or directed, the in- 
stallation of the above fixtures, together with the required fixtures in the 
laboratories, gymnasium toilets and kitchen, shall be in accordance with 
plumbing ordinances or rules of the city or town. in which the building is 
located, if such exist; otherwise, in accordance with the plumbing rules 
formulated by the State Examiners of Plumbers." 

In my opinion, it was the intention of the Legislature in granting this 
authority to the Department of Pul^lic Safety that in those cities and towns 
of the Commonwealth where no phunbing ordinances or rules exist, rules 
and regulations for the installation of plumbing (in such instances formu- 
lated by the State Examiners of Plumbers) would include the right of 
the State Examiners of Plumbers to provide that only those persons 
licensed by them to install plumbing sjiould perform the work called for 
in their rules. 

I therefore answer your specific question in the affirmative. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Police — Military Leave of Absence — Termination of Leave. 

Apr. 10, 1946. 
Hon. Thomas F. Sullivan, Police Commissioner of the City of Boston. 
Deai{ Sir: — You have in a recent letter advised me as follows: 

"This department is confronted with the following situation: Mem- 
bers of the uniformed force who were granted leave of absence for the 
purpose of serving in the armed forces, and who have been honorably 
discharged or released from active duty therein, show no inclination to 
claim their rights for reinstatement under the foregoing law. 



104 P.D. 12. 

Information has been received that some of these men are not residing 
within the limits of the city of Boston and are engaged in other occupa- 
tions. 

The Rules and Regulations laid down for the guidance of this depart- 
ment require that all members of the uniformed force reside within the 
limits of the city of Boston; and, further, that members of the force are 
forbidden to engage in any other occupation. 

An opinion is requested from you as to whether the members of our 
force, who have been granted indefinite leave of absence for the purpose 
of sending in the armed forces in time of war, and who have terminated 
their service therein, are allowed: 

(1) To engage in other occupations; and 

(2) Live outside of the limits of the city of Boston, in violation of the 
Rules and Regulations of the Boston Police Department." 

Following a long line of practice and procedure of this department, the 
Attorney General advises the Police Commissioner of Boston only upon 
questions connected with the commissioner's duties which are related to 
statutes governing his office and duties. Your present questions may be 
said to call for guidance as to the proper application of St. 1941, c. 708, 
and amendments thereof, and consequently may properly be answered. 
VII Op. Atty. Gen. 735; V Op. Atty. Gen. 394; IV Op. Atty. Gen. 451. 

St. 1941, c. 708, as amended, provides that a person who holds a civil 
service position and is separated from the service of the Commonwealth, 
or any of its subdivisions, by terminating such service to enter the mili- 
tary or naval forces of the United States, shall within two years after 
the end of his military or naval service "be reinstated in the office or 
position previously held by him," if he complies with certain stated con- 
ditions. 

I am of the opinion that it was not the intent of the Legislature, as 
expressed in the applicable statutes, that during this period of two years 
an employee who left his employment to enter the military or naval 
forces of the United States, although he is said by the language of St. 
1941, c. 708, § 1, as amended by St. 1943, c. 548, to "be deemed to be . . . 
on leave of absence," should, before his reinstatement, be considered as 
still in the service of the Commonwealth, or a political subdivision, in such 
a sense that his occupations or manner of living are subject to regulation 
by departmental rules. 

It follows that in answer to your questions I must advise you that 
members of your force on leave of absence by reason of their entering the 
military or naval forces of the United States are, for a period of two years 
after their termination of service with said forces and before their rein- 
statement, allowed to engage in other occupations than those of a Boston 
police officer and may live outside the city of Boston, irrespective of the 
rules and regulations made for the police force of Boston. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 105 

State Employees — Days off Duty — Additional Pay. 

Apr. 12, 1946. 
Hon. Francis X. Lanc, Comptroller.. 

Dear Sir: — You have asked my opinion as to whether, under the 
provisions of St. 1945, c. 565, which amend G. L. (Ter. Ed.) c. 30, by 
inserting a new section 24A, superintendents and assistant superintend- 
ents of State institutions are entitled to the additional day's pay provided 
for by said chapter 565, "for working on a state-wide legal holiday when 
an additional day off cannot be given by reason of a personnel shortage 
or other cause." 

Said section 24A as. so inserted provides: 

"If any person employed by the commonwealth is required to work on 
(names of legal holidays here inserted) he shall be given an additional day 
off, or, if such additional day off cannot be given ... he shall be en- 
titled to an additional day's pay. ..." 

It is to be noted that the benefits of said section 24A are not conferred 
upon "employees" of the Commonwealth but upon "any person em- 
ployed by the commonwealth." The word "person" as here used by the 
Legislature is sufficiently broad in scope to indicate an intent to include 
officers as well as employees within its sweep. The fact that the words 
"state employees" appear in the title of said chapter 565 does not indi- 
cate a contrary legislative intent. The title of an act may be considered 
in construing a statute but it does not control the meaning of the words 
of the statute when, as here, they do not appear to be of doubtful meaning. 
Opinion of the Justices, 309 Mass. 631, 639-640; Charles I. Hosmer, Inc. 
V. Commonwealth, 302 Mass. 495, 501. 

Moreover, the word "employees" is not of itself without ambiguity. 
It is sometimes used by the Legislature as comprehending ^v^thin its mean- 
ing both officers and employees {Russell v. Secretary of the Commonwealth, 
304 Mass. 181, 184, 185), and as so used has the same connotation as the 
word "person" appearing in the text of said section 24A. 

There is nothing in the opinion of June 4, 1936, of one of my predeces- 
sors in office, to which you refer in your letter, that is in conflict with the 
views herein expressed. 

It follows that the incumbents of those places to which you have re- 
ferred in your letter — superintendents and assistant superintendents 
of certain institutions — whether they are to be regarded as officers or 
as employees of the Commonwealth, are entitled to receive the benefit of 
the provisions of said section 24A. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Board of Registration in Embalming and Funeral Directing — Rules — 
Registration — Maintenance of an Establishment by Applicant for 
License. 

Apr. 18, 1946. 

Mrs. Mae Manninc, Director of Registration. 

Dear Madam: — The Board of Registration in Embalming and Funeral 
Directing lias through you asked my opinion as to the validity of its Rule 
35A. This rule reads: 



106 P.D. 12. 

"No person successfully passing an examination for registration as a 
Funeral Director, shall be so registered unless he furnishes to the Board 
within ninety days after notification of his passing said examination, 
proof that he maintains within the Commonwealth an establishment so 
■constructed and equipped as to permit the decent and sanitary handling 
of dead human bodies." 

The Legislature in G. L. (Ter. Ed.) c. 112, § 83, as amended by St. 
1945, c. 596, s 2, appears to have covered the subject matter of the re- 
quirements for registration of a funeral director and after setting them 
forth has stated that one meeting such requirements 

"shall be registered by the board as qualified to be licensed under section 
forty-nine of chapter one hundred and fourteen as a funeral director." 

It has then ^dded the following proviso: 

"provided, that he shall not be so licensed until he furnishes satisfactory- 
proof to the board that he maintains within the commonwealth an under- 
taking establishment so located, constructed and equipped as to permit 
the sanitary handling of dead human bodies and maintains in such estab- 
lishment suitable equipment for such handling." 

Licensing of funeral directors is not done by your board but by boards 
of health of municipalities under G. L. (Ter. Ed.) c. 114, j; 49, upon term? 
and conditions prescribed by your board. They are permitted by said 
section 49 to issue such licenses only to persons certified to them by your 
board as qualified to be licensed. 

The duty of registering funeral directors is placed upon your board and 
you are also charged with the duty under said section 49 of certifying to 
the local boards of health those registered funeral directors who are quali- 
fied to be licensed. 

Since it is provided by said section 83 that no registered funeral director 
shall be "so licensed until he furnishes" to your board satisfactory proof 
that he maintains an establishment described in section 83, you may not 
certify to the local boards as qualified to be licensed any funeral director, 
though registered, who has not satisfied your board that he maintains such 
a required estabhshment. 

The Legislature has not limited the time within which a funeral director 
whom you have registered may furnish you with the required proof that 
he has maintained the required establisliment. Since the Legislature- has 
covered the whole subject of registration, certification and licensing in a 
detailed manner and has not indicated an intent to limit the time within 
which the required establishment may be set up and its existence proved 
to the satisfaction of your board, I am of the opinion that your board may 
not itself by a rule fix a limitation upon the time in which a funeral director 
may furnish you with such proof. 

In view of the character of the enactment, it would seem that the Legis- 
lature, if it had intended to allow only a limited time in which a newly 
registered funeral director might locate, equip and maintain tlie required 
form of establishment after registration, would have stated such intention 
in plain words. 

Accordingly, I answer your question to the effect that the rule in ques- 
tion is so opposed to the intent of the statute as to be invalid. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 107 

Bonus — Members of I' nited States Coast (luard Temporary Reserve on 

Fidl Time Duty with Pay. 

Aph. 18, 1946. 

Hon. John E. Hurlev, Treasurer and Receiver (leneral. 

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

"I respectfully request a formal opinion from your office relativ^e to 
whether or not a member of the United States Coast Guard Temporary 
Reserve who served 'full time duty, with pay' is entitled to receive the 
bonus provided by St. 1945, c. 731. 

Kindly find enclosed a copy of a letter from the United States Coast 
Guard dated February 28, 1946 in coimection with the aforementioned 
matter." 

In an opinion to you of January 30, 1946, upon the facts of which 
you then advised me and upon certain information furnished by the 
United States Coast Guard, I expressed the opinion that men who have 
served in the "Special Temporary Enlistment" in the United States Coast 
Guard Reserve and possess the necessary qualifications set forth in St. 
1945, c. 731, were ehgible to the "bonus" but that those who had been 
members of the "Temporary Reserve" as civilian volunteers for part 
time service only, could not be said to be entitled to receive the bonus. 

From further facts of which you now advise me and from statements 
of the United States Coast Guard, it would appear that there is one group 
among such Temporary Reserve which is entitled to the bonus. This is a 
group composed of those members of the Coast Guard Temporary Re- 
serve who, prior to December 12, 1942, were on a full time pay status and 
were performing hazardous duty under an enrollment and not under a 
government contract with the Coast Guard. Persons who served in this 
group would appear to be entitled to be regarded as members of the 
Coast Guard Reserve and as such entitled to the bonus. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Chelsea Excise Board — Rules and Regulations — Requirements for License 
to Sell Alcoholic Beverages. 

Apr. 18, 1946. 
Chelsea Excise Board. 

Dear Sirs: — You have asked my opinion as to your authority to 
make "rules" and as to the validity of certain "conditions" of licenses 
which you have previously formulated, a list of them being enclosed with 
your communication. 

Under the previous practice of this office, your questions are such as 
may properly be answered by the Attorney General, since they concern 
your authority as derived from the statutes, in view of the peculiar man- 
ner in which your board is created under Sp. St. 1916, c. 310. 

I must advise you that your board has not been vested by the Legisla- 
ture with authority to make "rules" or "regulations" as the quoted words 
are customarily used. Such authority to make regulations has been given 
to the State Alcoholic Beverages Control Commission alone (G. L. (Ter. 
Ed.) c. 138, § 24, as amended). 



108 P.D. 12. 

Nevertheless, you have been given the power to establish "require- 
ments" in connection with licenses which you issue (G. L. (Ter. Ed.) 
c. 138, § 15, as amended). Such requirements appear to have been made 
by you under the name of "conditions" with regard to licenses and are 
embodied in the list which you have laid before me. 

The "requirements" which you may make under the legislative grant 
of authority contained in said G. L. (Ter. Ed.) c. 138, i; 15, arelimited 
by said section 15 to those 

"with respect to licenses under said sections (12, 14, 15) or to the con- 
duct of business by any licensee thereunder." 

Of the "requirements" or conditions set forth in said list, all appear 
to be within the purposes indicated by the Legislature in the above- 
quoted portion of said section 15, and to be reasonable as implementing 
the applicable statutory provisions with the exception of that numbered 
2. b, which reads : 

"The holders of corporation stock imder an alcoholic beverages license 
shall not sell or otherwise dispose of their stock until they have received 
the approval of the Licensing Board." 

This requirement appears to go beyond the legislative grant of author- 
ity as set forth in said section 15, and deals with a subject which does 
not appear under any reasonable construction of said section 15 to be 
comprehended within the enumerated purposes as to which you may 
make "requirements," and, accordingly, is outside your powers to formu- 
late as one of the "requirements" or conditions of licenses and, conse- 
quently, is not, in my opinion, valid. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Bonus — Dependent of Deceased Serviceman. 

Apr. 18, 1946. 
Hon. John E. Hurley, Treasurer and Receiver General. 

Dear Sir : — You have asked my opinion upon two questions of law 
with relation to the bonus. The first reads: 

"I respectfully request a formal opinion from your office relative to 
whether an applicant who was in the status of a person in loco parentis 
to the deceased serviceman and not a dependent or heir-at-law is eligible 
to receive a 'bonus' under the provisions of St. 1945, c. 731, s^ 3." 

The applicable portion of St. 1945, c. 731, reads: 

"Section 3. In the case of the decease of any person who would if 
alive be entitled to the benefits of this act, the sum named therein shall 
be paid to his dependents, if any, and otherwise to his heirs-at-law; pro- 
vided, that if there is more than one dependent or heir-at-law, payments 
shall in either case be made in such proportions as the state treasurer 
shall determine, and in determining the order of precedence so far as 
practicable the following order shall be observed: wife and children, 
mother or father, brother or sister, other dependents; provided, however, 
that no right or payment under this act shall be subject to the claims of 



P.D. 12. 109 

creditors, capable of assigiinient, regarded as assets, legal or equitable, 
of the estate of the deceased or made the basis for administration thereof." 

Unless the person who occupied the status of one "in loco parentis" 
was in fact a dependent of a deceased serviceman, or if not a dependent 
was an heir-at-law, he is not entitled to payment of the so-called bonus. 

A person is said to be "in loco parentis" to another when he assumes 
the discharge of parental duties without going through the form of adop- 
tion. He need not be an heir-at-law or even a relative, nor does he be- 
come so by charging himself with such duties. Such a person standing 
in loco parentis to a child is entitled to his services and earnings, and it is 
possible that he might be a "dependent" of the child, though this would 
seem to be highly unusual. Dependency in a particular instance is a 
matter of fact to be determined by a consideration of all material factual 
circumstances connected with the specific relationship under considera- 
tion. 

Your second question reads: 

"I also respectfully request a formal opinion relative to whether an 
applicant who was in the status of a person in loco parentis to the de- 
ceased serviceman and not a dependent is eUgible to receive a 'bonus' in 
preference to non dependent brothers and sisters under the provisions of 
St. 1945, c. 731, § 3." 

In view of the considerations which I have set forth in answer to your 
first question, I answer your second to the effect that such a person as 
you describe, who was not a dependent, though acting in loco parentis 
to a .serviceman, is not ehgible to receive a "bonus" in preference to non- 
dependent brothers and sisters. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Bridges — Transfer of Duty to Maintain to Department of Public Works. 

Apr. 29, 1946. 
Hon. Heumax A. MacDonald, Commissioner of Public ]Vorks. 
Dear Sir: — I am in receipt from you of the following letter: 

"There are four bridges included in the list of bridges transferred to 
this department under the provisions of St. 1945, c. 690, which are ques- 
tionable as to their eligibility for transfer under the act. These bridges 
are Boston, Mass. Avenue over Huntington Avenue (Route 9); Boston, 
Canterbury St. over Morton St. (Route 3); Fall River, Eagle St. over 
Broadway Extension (Route 138) ; Fall River, Ferry St. over Broadway 
(Route 138). 

The streets on these bridges are not on numbered auto routes, but the 
bridges themselves are over numbered auto routes. The act states in 
part '. . . every public highway bridge ... on a through route.' 

It is respectfully requested that you render an opinion on the eligibility 
of these four bridges under St. 1945, c. 690." 

The Attorney General does not pass upon questions of fact. Your 
statement of fact is to the effect that "the streets on these bridges are not 
on numbered auto routes, but the bridges themselves are over numbered 
auto routes." 



110 P.D. 12. 

If by the words "auto routes" you mean through routes, as the under- 
hned words are used in St. 1945, c. 690, i^ 1, you would appear to state as 
a matter of fact that none of the bridges are ''located on a through route" 
as the quoted words are employed in said section 1, but rather that they 
extend over and across such a through route. 

If this is so, they do not come within that class of bridges which is 
transferred to your department, and the cost of the care, control and 
maintenance of which is to be paid out of the Highway Fund by the pro- 
visions of said section 1, which in the part applicable to your inquiry 
reads : 

"On January first, nineteen hundred and forty-six, the care, control 
and maintenance of every public highway bridge with a clear span of not 
less than twenty feet located on a through route . . . are hereby trans- 
ferred to the department of public works and thereafter such bridge shall 
be a state highway and the cost of the care, control and maintenance 
thereof shall be paid out of the highway fund ..." 

See Opinion of the Attorney General to the Commissioner of Public 
Works, August 10, 1945. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Constitutional Law — Payment of Public Money for Private Purposes. 

May 2, 1946. 
Committee on Metropolitan Affairs. 

Dear Sirs: — You have asked my opinion as to the constitutionality, 
if enacted into law, of House Bill No. 1 158, which is as follows : 

"An Act providing for the payment of sums of money by the met- 
ropolitan DISTRICT commission TO THE OWNERS OF PROPERTY ALONG 
THE WINTHROP SHORE DRIVE TO COMPENSATE THEM FOR DAMAGES 
CAUSED BY THE STORM IN DECEMBER, NINETEEN HUNDRED AND FORTY- 
FIVE. 

Be it enacted hy the Senate and House of Representatives in General Court 
assembled, and hy the authority of the same as follows: 

The metropolitan district commission is hereby authorized to pay such 
siuns of money to the owners of property located along Winthrop shore 
drive in the town of Winthrop to compensate them for damages suffered 
by them by reason of the storm of December, nineteen hundred and forty- 
five. Payments under this act shall be paid, subject to appropriation, 
from the metropolitan district funds." 

In my opinion, this measure, if enacted into law, would not be held to 
be constitutional. 

From the form of this bill as drafted, it would appear to be a measure 
for the payment of money merely for the purpose of relieving certain 
property owners from loss caused by a calamity in the nature of an act 
of God. There is nothing in the bill to indicate that any moral obligation 
on the part of the committee to such property owners can be predicated 
from the occurrence of the storm therein referred to or that an appro- 
priation of public money for other than a private purpose is intended to 
be authorized. 



P.D. 12. Ill 

The use of public money for private purposes is not permitted by our 
Constitution (c. II, § I, art. XI; c. I, v^ I, art. IV). Lowell v. Boston, 111 
Mass. 454. 

In Lowell v. Boston, the Supreme Judicial Court held (at page 473) 
that a bill providing for the use of public money to aid owners of prop- 
erty destroyed by fire being an expenditure "for private and not for 
public objects, in a legal sense, it exceeds the constitutional power of the 
Legislature." 

See also Opinion of the Justices, 186 Mass. 603, 605; Opinion of the 
Justices, 313 Mass. 779, 782; Kingmayi v. Brockton, 153 Mass. 255. VIII 
Op. Atty. Gen. 99, 100. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Bonus — Construction of the Word ^'Served" in St. 1945, c. 731, § 1. 

May 3, 1946. 

Hon. John E. Hurley, Treasurer and Receiver General. 

Dear Sir : — In a recent letter you have asked my opinion as to the 
meaning of the word "served" as it appears in the fifth line of St. 1945, 
c. 731, § 1, in the phrase 

"To each person who shall have served in the armed forces of the United 
States ..." 

with relation to those entitled to receive the so-called "bonus" under the 
terms of said section 1. 

I am of the opinion that, by the use of the word "served" in said phrase 
in connection with the other words therein employed, it was the intent of 
tlie Legislature to describe those persons who had been inducted into or 
sworn into the armed forces of the United States without regard to the 
particular duties to which they were thereafter assigned or as to the active 
or inactive character of the service which was required of them thereafter 
by the armed forces prior to discharge. 

Accordingly, I advise you that in each of the four instances which you 
have set forth, the respective applicants for the "bonus" would be entitled 
to the same by virtue of having "served" in the armed forces if, as you 
state, they possess "the other requirements " called for by said chapter 731. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Civil Service — City Employee — Probationary Period. 

May 7, 1946. 

Hon. James E. O'Brien, Chairman, Civil Service Commission. 

Dear Sir : — Your commission through you has in a recent letter re- 
quested my opinion in relation to a former employee of the city of Law- 
rence. Your letter reads : 

"Request was made for the reinstatement of Mr. Libby by the Director 
of Engineering, who is the appointing authority in the Lawrence Street 
Department, but this request was denied by the Director of Civil Service, 



112 P.D. 12. 

inasmuch as it was ruled that Mr. Libby was not entitled to the benefits 
of the Civil Service Law as he was dropped from employment during his 
probationary period. 

The facts in the case are as follows : 

1-4-38: Mr. Libby appointed as laborer in the Lawrence Street Depart- 
ment. 
3-15^0: Labor service of Lawrence classified under Civil Service. 
9-12-40: Mr. Libby was discharged. 

Mr. Libby was subsequently employed from time to time beginning in 
1943, on an emergency and provisional basis. 

Mr. Libby appealed the Director's decision denying his reinstatement 
and at a hearing before the Commission on April 9, 1946, stated that his 
reasons for his dismissal was his refusal to buy the position. 

We hereby request your opinion as to whether or not you believe, in 
view of the reason for Mr. Libby's discharge, he is entitled to reinstate- 
ment because of his services from January 1938 to September 1940." 

You do not state whether or not the commission has found that the facts 
alleged by the employee with relation to his discharge are as he has stated 
them. The Attorney General does not pass upon questions of fact. 

Irrespective, however, of the truth or falsity of the statements which 
you inform me were made by the employee concerning his discharge, your 
commission, in my opinion, has no authority to reinstate him in the posi- 
tion which you advise me he held on September 9, 1940. 

When the labor service of the city of Lawrence was classified inider 
civil service on March 15, 1940, according to your letter, the employee en- 
tered upon a six months' probationary period under the provisions of Civil 
Service Rule 18. During that period he could be discharged at the pleasure 
of the appointing officer. He was not during that period to be regarded 
"as holding employment in the classified public service" and was not 
therefore "an . . . employee ... of a city . . . who has become sepa- 
rated from the classified civil service," as the last quoted words are used in 
G. L. (Ter. Ed.) c. 31, § 46C, as amended by St. 1939, c. 236, or as most 
recently amended by St. 1945, c. 704, which gave to the director a power of 
reinstatement under designated conditions over "an employee ... of a 
city . . . who has become separated from the classified civil service." 
Crimrnins v. Highway Commission oj Brockton, 304 Mass. 161, 171. See 
Attorney General's Report, 1940, pp. 94, 95. 

The terms of G. L. (Ter. Ed.) c. 31, § 47A, which specifically exempt 
from the necessity of serving a probationary period, when a city accepts 
the provisions of said chapter 31 placing its employees in the classified 
public service, such employees as have previously worked for such city 
for at least two years, were not enacted until 1941 by chapter 195 of that 
year. As is the case with most statutes, chapter 195 is to be construed as 
prospective, and its provisions have no retroactive effect to exempt this 
particular employee in relation to his status in the emplojonent of the city 
of Lawrence during 1940. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 113 

Medical Examiner — Associate — Qualifications for Appointment. 

May 14, 1946. 
His Excellency the Governor and the Honorable Council. 

Dear Sirs: — You have through your Executive Secretary sent me the 
following communication : 

"I have been directed by the Governor and Council to request an 
opinion from you on the following: 

Question: May a resident of Suffolk County be appointed an Associate 
Medical Examiner for Norfolk County?" 

I answer your question in the negative. 

Since the Legislature in 1877 purported to abolish the office of coroner 
and transferred many of its duties to medical examiners created by chapter 
200 of the acts of that year, and later to associate medical examiners, the 
word "in" has been continually employed by the Legislature in a line of 
statutes relative to the appointment of such officers, as in the phrase used 
in St. 1877, c. 200: "The governor . . . shall appoint, in the county of 
Suffolk not exceeding two, and in each other county not exceeding the 
)iumber to be designated by the county commissioners . . . able and dis- 
creet men ... to be medical examiners" and in R. L. c. 24, § 1: 

"shall appoint . . . able and discreet men ... to be medical examiners 
and associate medical examiners in each county." 

It would appear that the preposition "in" as so employed hidicated an 
intent on the part of the Legislature that the appointees sliould be men 
who were themselves within the counties which they were to serve, as 
inhabitants or residents. The preposition "m," though of a broader mean- 
ing than the preposition "for," may embrace the sense of the latter. If 
the preposition "for" alone had been used in the early statutes, with its 
narrower connotation, applying, as it would have done, to the county 
only rather than with any reference to the appointee, it might have been 
thought that an appointment "for" a county could be made of a person 
not living wathin the county. This latter use was not adopted by the 
Legislature, and in the compilation of the statutes in the General Laws of 
1921 the compilers added the word "for" to the word "in," thereby em- 
phasizing the intent of the Legislature that the person "in" the county, 
who was appointed, should after such appointment act "for" the county. 

As appearing in the Tercentenary Edition of the General Laws, c. 38, 
§ 1, the applicable provisions read: 

"The governor, with the advice and consent of the council, shall ap- 
point . . . able and discreet men ... as medical examiners in and for 
their respective counties, and as associate medical examiners in and for 
their respective districts in counties divided into districts, otiierwise in 
and for their respective counties. . . ." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



tl4 P.D. 12. 

Residence — Determination for Certain Purposes. 

May 16, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam: — You have transmitted to me the following communi- 
cation from Dr. Gallupe: 

"Will you be kind enough to request an opinion from the Attorney Gen- 
eral's office as to 'how residence in this Commonwealth on a certain date 
is determined.' 

This information is requested with reference to a biU which has recently 
been passed permitting certain graduates of Middlesex University Medical 
School to take the examinations for registration as physicians in Massa- 
chusetts." 

Residence is a question of fact and is to be determined with regard to 
any particular case in view of all the circumstances affecting the person 
whose "residence in the Commonwealth" is being considered. 

As a matter of law, a person is usually held to be a resident of that 
place where he is making his home with no immediate intention of re- 
moving therefrom. As of a given date a person's residence is to be de- 
termined by considering all the factors which then existed and throw light 
on his place of abode and his intentions with regard to it. Disposition of 
a family, registration as a voter, membership in local organizations, and 
place of permanent employment are some of the determining factors. 

A person away from his home at an institution, living at such institu- 
tion or nearby, solely for the purpose of obtaining an education, having 
no present intention of making his place of living a permanent abode, 
would not ordinarily be held to be a resident of such place. Granhy v. 
Amherst, 7 Mass. 1, 5. Opinion of the Justices, 5 Met. 587, 589. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Civil Service — Chief Engineer in Town — Term of Office. 

May 18, 1946. 
Hon. Thomas J. Greehan, Director, Division of Civil Service. 

Dear Sir: — In a recent letter you have advised me that one Har- 
greaves was formerly chief engineer of the Board of Fire Engineers of 
North Andover; that his term of office expired on April 30, 1946; that a 
new board took office on May 1, 1946, and that he was not reappointed. 

With relation to these facts you have asked me the following question : 

"I hereby request your opinion as to whether James Hargreaves, the 
incumbent of the position of Chief Engineer of the Board of Fire En- 
gineers at the time of the passage of St. 1945, c. 425, and the acceptance 
by the voters of that town, may now be subjected to a non-competitive 
qualifying examination and given a civil service status if he passes such 
an examination, by reason of the amendment to St. 1946, c. 266." 

St. 1945, c. 425, provided that upon its effective date — 

"The office of chief of the fire department of the town of North Andover 
shall . . . become subject to the civil service laws and rules and regula- 



P.D. 12. 115 

tions relating to permanent members of fire departments in towns, and 
the tenure of office of any incumbent thereof shall be unlimited, subject, 
however, to said laws, but the person holding said office on said effective 
date shall continue to serve therein only until the expiration of his term 
of office unless prior thereto he passes a non-competitive qualifying ex- 
amination to which he shall be subjected by the division of civil service." 

The act was to take effect upon its adoption by the voters of tlie town. 
You inform me that it was accepted by the voters on March 4, 1946. 

You also inform me that there was no such office as "chief of the fire 
department in the town of North Andover" and that corrective legislation 
was enacted by the General Court in the form of the following statute, 
St. 1946, c. 266, which became efi"ective May 2, 1946: 

"An Act relative to placing under the civil service laws the 

office of the chief encilneer of the board of fire engineers of 

the town of north andover. 

Be it enacted by the Senate and House of Representatives in General Court 
assembled, and by the authority of the same, as follows: 

Section 1. The reference to the office of chief of the fire department 
of the town of North Andover in chapter four hundred and twenty-five of 
the acts of nineteen hundred and forty-five shall be held to refer to the 
office of chief engineer of the board of fire engineers of said town to the 
same extent as if said last mentioned office were specifically referred to 
therein. 

Section 2. This act shall take effect upon its passage." 

You further mform me that said Hargreaves now asks that he be given 
a non-competitive qualifying examination for the position of chief engineer 
of the Board of Fire Engineers. 

Since Hargreaves was the chief engineer of the fire department on the 
effective date of said St. 1945, c. 425, he was, by force of the provisions of 
said chapter 425, entitled to serve therein with unlimited tenure but only 
if he passed a non-competitive qualifying examination before the expiration 
of his then term of office. These provisions were not extended with relation 
to such tenure by St. 1946, c. 266. 

Inasnmch as Hargreaves' term expired, as you inform me, without his 
having passed such an examination, he is not now entitled to take one 
and to be given "a civil service status." 

It is true that Hargreaves, by reason of the manner in which the two 
statutes were drawn and the effective date of the latter one, never had an 
opportunity during his term of office to take an examination. Since this 
is so, further corrective legislation might be sought from the General Court. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

State Retirement System — Retirement at Seventy — Not Applicable to a 
Certain Employee Entering Service in 1901. 

May 27, 1946. 

Dr. Vlado a. Getting, Commissioner of Public Health. 

Dear Sir: — You have in a recent letter advised me that a certain 
employee in your department entered the service of the Commonwealth in 
1901, that is, before the establishment of the State Retirement System, 



116 P.D. 12. 

which was set up in 1912; that such employee exercised the privilege af- 
forded him by St. 1911, c. 532, § 3 (1), and duly signified his desire not to 
become a member of the system. You state that said employee has passed 
the age of seventy and you ask if he may still continue in the service of 
the Commonwealth. 

I advise you that, in view of the facts which you have set forth in your 
letter, the employee may continue in such service and is not required to 
leave by reason of the age which he has attained. 

The provisions of law which require retirement of one in the service of 
the Commonwealth at the age of seventy are contained in the Contributory 
Retirement Law (G. L. (Ter. Ed.) c. 32, as amended by St. 1945, c. 658). 

By the provisions of this law: 

(1) A member of the retirement system, with certain exceptions not here 
material, must retire at the maximum age permitted for employees of the 
group in which his position has been established by the Legislature in said 
chapter 32, which age for an employee such as the one in question would 
be seventy. This employee, however, is not a member of the retirement 
system. 

(2) A non-elective employee not a State official as defined in section 1 
of said chapter 32, as amended, who was over fifty-five when he originally 
entered the service of the Commonwealth, may not be a member of the 
system but must retire at the same age as those holding positions in "the 
group in which he would have been classified if he had become a member" 
of the retirement system. This employee obviously was not over fifty-five 
in 1901 when, as you state, he originally entered the service (see G. L. 
(Ter. Ed.) c. 32, ^^ 3 (2) (e) (/), as amended). 

Similar provisions requiring the retirement for superannuation of the 
holders of positions in the groups set up in a like manner in G. L. (Ter. 
Ed.) c. 32, before its amendment in 1945, were contained in said chapter 32 
prior to 1945 (see 1932 Op. Atty. Gen. 42, 43). 

There is no other provision of law which could be thought applicable to 
the compulsory retirement of this employee at the age of seventy or at 
any other age. He belongs to a small class of employees whose compulsory 
retirement at seventy is not required by the statutes. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Bonus — Authority of Treasurer to Pass upon Claims may not be delegated. 

May 28, 1946. 

Hon. John E, Hurley, Treasurer and Receiver General. 

Dear Sir : — You have asked my opinion by a recent letter in the fol- 
lowing terms : 

"Your opinion is respectfully requested as to the right of the State 
Treasurer to establish a board of appeal on bonus claims, under the pro- 
visions of St. 1945, c. 731." 

I know of no authority which has been given you either by St. 1945, 
c. 731, or by any other statute, to establish a board of appeal on "bonus 
claims." 

The duty of acting either favorably or unfavorably upon all applications 
for the "bonus" which may be made under said chapter 731 has been 



r.D. 12. 117 

placed upon you as Treasurer by section 8 of said chapter 731, and it is 
for you alone, in the exercise of sound judgment, to pass upon such claims 
or applications. This is not a duty which can be delegated by you nor is 
it a duty which the Attorney General is empowered to perform for you, 
nor does any "appeal" lie from your decision upon an application or claim 
for a "bonus" to the Attorney General or to any other administrative 
or executive officer. 

There is no provision of the statutes which directly or by implication 
indicates that your decision shall not be final, except as it might under 
certain contingencies be subject to judicial review in the courts. 

Most of the questions which arise in connection with applications under 
said chapter 731 will be questions of fact. Questions of fact are never 
passed upon by the Attorney General but are, in connection with such 
applications, exclusively for your own determination. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

State Board of Retirement — Emploijees of certain Institutions — Classi- 
fication. 

June 6, 1946. 

Hon, John E. Hurley, Chairman, State Board of Retirement. 

Dear Sir : — You have recently written me as follows : 

"As directed by a vote of the State Board of Retirement, I respectfully 
request your opinion as to the rights of certain employees in the following 
institutions to be classified in Group B within the provisions of section 3, 
paragraph (ix) (g), chapter 658, Acts of 1945: Belchertown State School; 
Walter E. Fernald School for Feeble-Minded; Wrentham State School; 
State Hospital at Monson for Epileptics. 

This particular paragraph reads as follows : 

Employees of the commonwealth and of any county, regardless of any 
official classification, whose regular and major duties require them to have 
the care and custody of prisoners or insane persons or of defective delin- 
quents at the state farm. 

With further reference to this matter, section 7 (15), chapter 4 of the 
General Laws sets up the following definition of an insane person : 

'Insane person' and 'lunatic' shall include every idiot, non-compos, 
lunatic and insane and distracted person." 

With relation to such employees at the schools above mentioned whose 
principal duties relate to the care and custody of feeble-minded persons, I 
am of the opinion that they do not come within the terms of the paragraph 
quoted by you above from St. 1945, c. 658, and so do not fall within the 
class of employees therein mentioned who are to be classified in Group B 
(St. 1945, c. 658, ^ 3 (ix) (g)) and whose maximum age of retirement is 
sixty-five as against seventy for those in Group A (St. 1945, c. 658, § 1). 

The context of G. L. (Ter. Ed.) c. 123, dealing with the commitment 
and care of the insane, indicates that the Legislature has made a plain 
distinction between feeble-minded persons and those who are insane, and 
that, accordingly, the definition of "insane person" in G. L. (Ter. Ed.) 
c. 4, § 7, quoted by you above, does not, with relation to the words "in- 
sane persons" as used in St. 1945, c. 658, § 3, include within its sweep 



118 P.D. 12. 

feeble-minded persons, since said statutory definition by its terms is not 
to apply when "a contrary intention clearly appears." Chapin v. Lovell^ 
194 Mass. 486. In so far as these views may be in opposition to any 
statement in an opinion of one of my predecessors in office in 1939 Op. 
Atty. Gen. 64, I am not in accord with such statement, though I do not 
differ upon the point actually decided in such opinion. 

With regard to employees in the "State Hospital at Monson for Epilep- 
tics," I am of the opinion that such employees whose duties are the care 
and custody of epileptics are not to be classified in said Group B, except 
such as have the care and custody of insane epileptics referred to in G. L. 
(Ter. Ed.) c. 123, § 69, as amended. A reasonable interpretation of the 
quoted definition of "insane person" in said G. L. (Ter. Ed.) c. 4, § 7, 
cannot include epileptics as such within its meaning. Morever, the Legis- 
lature in said G. L. (Ter. Ed.) c. 123, has clearly indicated an intent to 
distinguish epileptics as such from those in the category of insane persons. 

Veiy truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — Assistant Insurance Attorney — Classification. 

June 7, 1946. 

Hon. Thomas J. Greehan, Director, Division of Civil Service. 

Dear Sir: — You have asked my opinion as to whether the newly 
created place of "assistant insurance attorney" in the Division of Insur- 
ance of the Department of Banking and Insurance is within the classified 
civil service under the provisions of G. L. (Ter. Ed.) c. 31. 

I am of the opinion that such place is within the classified civil service. 

By the provisions of G. L. (Ter. Ed.) c. 26, § 7, as amended, the Commis- 
sioner of Insurance is authorized to appoint certain designated officers 
with the approval of the Governor and Council. Such officers by reason 
of the method of appointment subject to such approval are not within the 
classified civil service (G. L. (Ter. Ed.) c. 31, § 5, as amended). Neither 
the office of insurance attorney nor that of assistant insurance attorney is 
among such designated offices which are, by the provisions of said section 
7, hmited to 

"a first deputy, an actuary and a chief examiner, and such additional 
deputies, examiners, assistant actuaries and inspectors as the service may 
require." 

Other employees of the division are by the terms of said section 7 to be 
appointed by the commissioner and their appointment does not require 
the approval of the Governor and Council: — these employees are described 
in said section 7 as "such clerical and other assistants as the work of the 
department may require." 

Since the officers, insurance attorney and "assistant insurance attorney," 
are not included explicitly or by implication among those who are specif- 
ically named as requiring approval of appointment by the Governor and 
Council, it is manifest that the only mode by which they can be appointed 
is by action of the Commissioner of Insurance alone, as "clerical" or "other 
a.ssistants." As the holders of such places of the latter type, they fall 
within the sweep of the classified civil service. 



WD. 12. 119 

You have informed nie that the duties of the assistant insurance attorney 
have been set up by the Division of Personnel and Standardization as 
follows : 

" Title of Class: Assistant Insurance Attorney. 

Definition of Class: Duties: Under general direction, to assist the 
Insurance Attorney for the Division of Insurance of the Department of 
Bankmg and Insurance in investigating complaints, holding hearings, ad- 
vising the public and the department staff on legal ciuestions relating to 
insurance, drafting legislative bills, and assisting state officers hi prosecu- 
tion for violation; and to perform related work as required." 

Plainly these duties are not such as would appertain to any of those 
offices Avhich are mentioned in said section 7 as requiring that appointments 
thereto should be with the approval of the Governor and Council and 
indicate that the place is that of an "assistant" such as is referred to in 
said section 7, to be appomted by act of the commissioner alone. 

You have not advised me as to the duties of the position of insurance 
attorney, but I assume that they are not dissimilar to those established 
for the "assistant insurance attorney." You inform me that your division 
has ruled over a period of years that the said position of insurance at- 
torney is subject to the civil service laws, and it would seem that your 
ruling in this respect is correct. The Supreme Judicial Court had occasion 
to consider the office of insurance attorney with relation to the present 
incumbent in the case of Hayes v. Hurley, 292 Mass. 109, and treated its 
status, as the basis of its opinion, as being within the classified civil service. 

It would seem clear that if the insurance attorney is within the classified 
civil service, the "assistant insurance attorney" is likewise within it, since 
appointment to the place of the latter rests upon no different statutory 
authority than appointment to the former, both being governed by the 
terms of said chapter 26, section 7. 

There is nothing in earlier statutes relative to the matter now compre- 
hended in the codification of laws in G. L. (Ter. Ed.) c. 26, § 7, as amended, 
which could lead to any other interpretation of the provisions of said sec- 
tion 7 than that which I have set forth (St. 1907, c. 576; R. L. c. 118, § 5; 
St. 1920, c. 181; St. 1924, c. 261; St. 1931, c. 301). 

It is not necessary for the purposes of this opinion to determine whether 
or not the places of insurance attorney and assistant insurance attorney 
are offices or positions. If they are positions only, the approval of the 
Governor and Council would in no event have a tendency to remove them 
from the coverage of the civil service. If they are ojlices, there is no pro- 
vision of law, explicit or implied, as I have indicated, by which the ap- 
proval of the Governor and Council is required to be given to appointments 
thereto. In neither case would an appointee to eitlier place fall withm that 
class which is exempted from inclusion in the civil service by that provision 
of G. L. (Ter. Ed.) c. 31, § 5, as amended, which reads: 

"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 the approval of the gov- 
ernor and council. ..." 

nor would he come within any other of the excepted classes mentioned in 
said section 5. 

Appropriate classes for employees who may properly be called "clerical 
and other assistants" have been established by the rules of the Civil Serv- 



120 P.D. 12. 

ice Commission, in some one of which the insurance attorney has been 
placed, I am infomied, under the Civil Service Rules and Regulations, and 
the assistant insurance attorney should likewise be so placed. 

Moreover, as there is no provision of law authorizing, specifically or by 
implication, the appointment of any "attorney," in the full sense of the 
quoted word, in or for the Division of Insurance, I assume that the title of 
the place under consideration is something of a misnomer and that the 
phraseology which has been adopted to describe its duties, as above set 
forth, is to be construed so as to mean only duties of a clerical nature, or 
such as might be performed by an assistant who is not a member of the 
bar, and not as purporting to authorize the performance by the incumbent 
of any such legal work or the creation of any such duties as are the sole 
prerogatives of the Attorney General and his assistants. 

Very truly yours, 

Clarence A. Barnes, Attorney GeneraL 



Board of Registration in Pharmacy — Approval of Schools and Colleges^ 

June 18, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam : — I am in receipt from you of a request from the Board 
of Registration in Pharmacy for my opinion upon the two following 
questions : 

"1. Are the Board of Registration in Pharmacy and the U. S. Veterans' 
Administration required to, or may they, in their discretion, approve 
schools for each veteran of World War II, who is an applicant for exami- 
nation for registration as a pharmacist? 

2. Are the Board of Registration in Pharmacy and the U. S. Veterans' 
Administration required to set up standards for schools or colleges of 
pharmacy so that they may be approved by the Board and the U. S. 
Veterans' Administration; and may they require all veterans applying 
for registration as pharmacists to be graduated from such schools or 
colleges?" 

St. 1946, c. 272, substitutes the Board of Registration in Pharmacy and 
the U. S. Veterans' Administration for the said board and the Commis- 
sioner of Education (see G. L. (Ter. Ed.) c. 112, § 24, as amended by St. 
1945, c. 502) as the approving authority for schools and colleges of phar- 
macy in so far as veterans of World War II are concerned. 

The applicable statutes do not prescribe the mode by which such schools 
and colleges are to be brought to the attention of the approving authority 
for the purpose of securing its sanction. 

With relation to your first question, I am of the opinion that the approv- 
ing authority should pass upon the qualifications of any of such schools 
or colleges as may be brought to their attention for the purpose of being 
approved either by such an institution itself or by a graduate, who is an 
applicant for examination. 

With regard to your second question, the approving authority is not 
required by the apphcable statutes to set up standards for the said schools 
and colleges, attainment of which is to be a condition of approval. For 
the guidance of such institutions, the approving authority might indicate 
the minimum standards which the authority expects an institution to 



P.D. 12. 121 

maintain if it is to have the authority's api)ioval, but sucli indication 
would not in a sense be a rule binding upon the authority nor limit the 
exercise of the board's discretion in passing upon ain'' individual case 
coming before it. 

\'ery truly yours, 

Clarence A. Barnes, Attorney deneral. 



Corporation — Fee for Filing a Certain Certificate of Increase of Capital 

Stock. 

June 21, 1946. 

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

Dear Sir: — Your recent letter has received my attention relative to 
the fee to be charged for fihng a certificate of an increase of capital stock 
by adding 350,000 additional shares of common stock without par value, 
when at the same time the capital stock is being decreased by 150,000 
shares of preferred stock with a par value of $10 per share, which has 
been retired. 

Your specific question is whether or not, in determining the fee, there 
should be credited, against the sum of .13,500, which is one cent per share 
upon the proposed increase, the sum of $750, which is one twentieth of 
one i^er cent of $1,500,000, the amount of the preferred stock by which 
the capital is decreased by the same vote. 

This cjuestion arises under G. L. (Ter. Ed.) c. 156, ^J 54, as most recently 
amended by St. 1932, c. 180, § 30, which reads. as follows: 

"Section 54. The fees for filing the following certificates shall be as 
follows : 

For filing a certificate providing for an increase of capital stock with 
par value, one twentieth of one per cent of the amount by which the 
capital is increased; but not in any case less than twenty-five dollars. 

For filing a certificate providing for a change of shares with par value 
to shares without par value, whether or not the capital is changed thereby, 
one cent for each share without par value resulting from such change, 
less an amount equal to one twentieth of one per cent of the total par 
value of the shares so changed; but not in any case less than twenty-five 
dollars. 

For filing a certificate providing for an increase in the number of shares 
without par value, whether or not the capital is changed thereby, one 
cent for each additional share; but not in any case less than twenty-five 
dollars." 

If the transaction to which you refer were a change of shares with par 
value to shares without par value, the case would come within the third 
paragraph of the foregoing section and the deduction should be made. 
Accordingly, I have asked you for a copy of the votes of the corporation 
relative to the transaction. A copy of the principal vote, with footnote 
No. 1 thereto, on file in your office, follows: 

" Voted, That the authorized capital stock of this Company now fixed 
at 1,550,000 shares of Common Stock without par value and 150,000 
shares of 6% Preferred Stock with a par value of $10 each is hereby in- 
creased by adding thereto 350,000 additional shares of Common Stock 
without par value and is at the same time decreased by 150,000 shares 



122 P.D. 12. 

of 6% Preferred Stock, said Q%, Preferred Stock having been either never 
issued or if issued having been either converted into Common Stock or 
redeemed, so that henceforth such authorized capital stock shall consist 
of 1,900,000 shares of Common Stock without par value and no Preferred 
shares, and that the Agreement of Association and Articles of Organiza- 
tion of this Company be and they are hereby amended accordingly." 

"Note 1. — The 150,000 shares of Preferred Stock with par value 
already authorized are shares of 6% Preferred Stock of the par value of 
$10 each. Of these 115,000 shares were authorized to be issued as a 
stock dividend on the Common Stock as stated in the Certificate of Issue 
filed December 18, 1937, but only 109,126 of such shares were in fact so 
issued. Subsequently 47,214 of these shares were retired by being con- 
verted share for share into Common Stock leaving only 61,912 shares 
outstanding at the time of the expiration of the conversion privilege. 
These 61,912 shares were called and redeemed on April 1, 1946. There 
are therefore no longer any shares of Preferred Stock outstanding. The 
foregoing vote eliminates the whole issue of said 150,000 shares from the 
capitalization of the Company." 

From the foregoing, it appears that the preferred stock is not being 
exchanged for the new common stock without par value, but has hereto- 
fore been retired. No change is being made from preferred stock with 
par value to common stock without par value. It follows that the trans- 
action comes Avithin the last paragraph of section 54, as amended, which 
expressly taxes at one cent per share an increase in the number of shares 
without par value, "whether or not the capital is changed thereby." 
Therefore, no deduction can be made in computing the fee. $3,500 must 
be paid. 

This result follows the opinion of Attorney General Warner dated June 
11, 1929. It is not inconsistent with my opinion of August 3, 1945, nor 
with Attorney General Warner's opinion of August 3, 1932, nor with the 
decision of the Supreme Judicial Court in Commonwealth v. U. S. Worsted 
Company, 220 Mass. 183. Neither said last-mentioned opinions nor said 
decision related to the issue of stock without par value. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 12;^ 



INDEX TO OPINIONS 



47 

83 
47 

60 

39 

107 
29 



Absence; leave of; veteran; step-rate increments; accumulated ^-acation 

time 

Military leave of : return to service; time 

Administration and Finance; rules; interj^retations 

Agency for raising money for betterment of social and economic conditions 

duty of Commissioner of Public Welfare 

Agriculture, Commissioner of; chairman of Milk Control Board; incompati 

bility of ollices 

Alcoholic beverages, requirements for license to sell; rules and regulations 

Chelsea Excise Board 

Appropriation; contract; ordinary maintenance 

Approving Authority of Schools for Nurses and Attendants; examinations 102 

Armory; non-military use; Adjutant General 78 

Barbers, Btjard of Registration of; qualifications of members .... 91 

Bonus; authority of Treasurer to pass upon claims may not be delegated . 116 

Construction of the word "served" in 8t. 1945, c. 731, § 1 . . .Ill 

Dependent of deceased serviceman 108 

Members of United States Coast Guard Temporary Reserve on full time 

duty -with pay 107 

Temporary member of United States Coast Guard Reserve .... 82 

Veteran; honorable and dishonoratjle discharge 58 

Resident; domicile 31 

Ei-idence 34 

United States Coast Guard Reserve 35 

Boston, port of ; construction; lease; St. 1945, c. 619, § 10 . 85 

Boxing exhilntions, simultaneous; authority to regulate 94 

Bridges; duty of Metropolitan District Commission to maintain Neponset 

bridge 102 

Through routes; constructi(ui of St. 1945, c. 690 31 

Transfer of control ; Department of Public Works; St. 1945, c. 690 . 68 

Transfer of duty to maintain to Department of Public Works . . . 109 
Buildings o\\nied by the Commonwealth; lioard of Examiners of Plumbers; 

rules; town regulations of plumbing .98 

Cai)ital stock; fee for filing a certain certificate of nicrease of; corporation 30, 121 
Chelsea Excise Board; rules and regulations: requirements for license to sell 

alcoholic beverages 107 

89 
111 
118 
114 
111 

42 
74 

71 

93 

85 

110 



Chircjpody; approval of school 

City employee ; probationary period; civil service . . 
Civil service ; assistant insurance attorney ; classification 

Chief engineer in town ; term of office 

City employee ; probationary jjeriod 

Employees of Metropolitan District Water Supply Commission doing work 

under St. 1945, c. 705 • • 

Civil Service Commission; director; appeals; classification plans . 
Conserv-ation, Department of; authority of inspectors to stoj) motor vehicles 
in suppressing gypsy moths 

Removal of slash 

Conservation officers in the Division of Fisheries and Game 
Constitutional law; payment of public money for private purix)ses 



124 P.D. 12. 

Contracts ; appropriation ; ordinary maintenance 

Bids; authority to reject 

Contributor}^ pension system; employees of insurance company 

Corporation ; fee for increase of capital stock 30 

Dairj^ farms, registered; milk 

Dependent of deceased serviceman ; bonus 

Discharge, honorable and dishonorable; veteran; bonus .... 

Domicile; bonus; veteran; resident 

Embalming and Funeral Directing, Board of Registration in ; rules ; registra- 
tration; maintenance of an establishment by applicant for license 

Emploj^ees, State ; establishment of woi-king hours 

Engineer, chief, in town; term of office; civil service . . 
Federal Government, agreements ^^'ith ; unemployment compensation 
Fisheries and Game, Division of; conservation officers in ... 
Foster homes for infants; Commissioner of \'eterans' Services 
Governor and Council; discretion as to disapproval of certain items in war- 
rants; legislative declarations 

Group life policy; insurance; foreign company; licensed resident agent 

Foreign contract 

Gypsy moths, authority of inspectors to stop motor vehicles in suppressing 

Department of Conservation 

Infants, foster homes for; Commissioner of \'eterans' Services 

Insurance ; employees of insurance company ; contributory pension system 

Group life policy; foreign contract 

Foreign company; licensed resident agent 

Life policy; waiver of premiums 

Labor and Industries, Department of; qualifications of members appointed 

by Governor 

Legislator; qualifying oath ; salary 

Logan Airport ; Department of Public Works ; motor vehicles; rules; busses 

hackney carriages 

Marine Fisheries, Director of ; city ordinance ; shellfish .... 
Medical examiner; associate; qualifications for appointment . 
Merchant Marine; military or naval service; State employee 

Merrimack Valley Joint Sewerage Board 

Metropolitan District Commission; charge to towns for water in 1946 . 

City of Ne\^'ton ; Metropolitan Water System 

Lease of lands acquired 

Permit to owner of land abutting on a way for a driveway; roads; park 

ways; boulevards 

Metropolitan District Water Supply Commission, authority to use surplus 
money 

Employees of, doing work under St. 1945, c. 705; civil service . 

LTse of lands acquired 

Military leave of absence, police; termination of leave .... 

Return to service; time 

IMilitary or naval service ; Merchant Marine; State employee 

Milk Control Board, authority of State Auditor to examine various account 

Authority to make orders of curtailment of deliveries .... 

Chairman of; Commissioner of Agriculture; incf)mpatibility of offices 

Deductions of assessments paid by milk dealers from amounts due from 
producers 

Director ; term of office 

Milk ; registered dairy farms . 

Minimum fair wage law; females; minors; discrimination 
Minors; minimum fair wage law; females; discrimination 
Money, public, pajnnent of for private purposes; constitutional law 
Motor vehicles; Ix)gan Airport ; Department of Public Works; rules; busses 

hackney carriages 73 



64 

42 

89 

103 

S3 
101 
^ 95 
43, 4S 
39 



P.D. 12. 125 



102 
27 

102 
72 

120 



Neponset bridge ; dutj^ of IVIetropolitan District Commission to maintain 

Neu'ton, city of; ]Metropolitan Water System 

Nurses and Attendants, Approving Authority of Schools for; examinations 

Oath, quahfying; legislator; salarj'^ 

Pharmacy, Board of Registration in; approval of schools and colleges . 
Plumbers, State Examiners of: buildings o^vned by the Commonwealth 

rules ; toAMi regulations of plumbing 98 

Department of Public Safety; regulations and rules of both bodies 103 

Police; military leave of absence ; termination of leave 103 

Port of Boston Authoritj^; plans; contracts; costs 62, 66 

Public Safety, Department of; State Examiners of Plumbers; regulations 

and rules of both bodies 103 

Public Welfare, Commissioner of, duty of; agency for raising money for 

betterment of social and economic conditions 60 

Public Works, Department of; bridges; transfer of control; St. 1945, c. 690 68 

Logan Airport ; motor vehicles ; rules ; busses ; hackney carriages . . 73 

Reformatory for Women ; release on indenture ; domestic service ... 46 

Residence ; determmation for certain purposes .114 

Resident; veteran; bonus 31, Si- 
Retirement ; teachers ; annual salaries 26 

Credit for out-of-State service 59 

Veterans; payments for military service credit ...... 53 

Veteran ; amount of pension 54 

Contribution by Commonwealth 67 

Retirement allowances for State Police officers 76 

Retirement at seventj^; state retirement system; not applicable to certain 115 

employee entering servace in 1901 117 

Retirement, State Board of; employees of certain institutions; classification . 
Retirement system ; employees in Department of Mental Health ; employees 

at State Farm . .80 

Superintendent of schools; retirement for superannuation; elective office 77 

Routes, through; bridges; construction of St. 1945, c. 690 .... 31 
Schools, superintendent of; retirement for superannuation; elective office; 

retirement sj'stem 77 

Schools and colleges, approval of; Board of Registration in Pharmacy . . 120 

Settlement; veteran; resident 41 

Shellfish ; city ordinance ; Director of Marine Fisheries 75 

Slash, removal of ; Department of Conserv^ation .93 

State Boxing Commission ; authority to regulate simultaneous boxing exhibi- 
tions 94 

State employees; days off duty; additional pay 105 

Establishment of working hours 69 

Military' or naval service ; Merchant Marine 101 

State Farm, emplovees at; retirement system; employees in Department of 

Mental Health 80 

State police officers, retirement allowances for . . . . . . . 76 

State retirement system; retirement at seventy; not applicable to certain 

employee entering serv'ice in 1901 115 

Statute; termination; conclusion of existing state of war .... 36 

Teachers; retirement; annual salaries 26 

Credit for out-of-State service 59 

Veterans ; payments for military service credit 53 

Tuition; veterans; residents 40 

rnemployment compensation ; agreements with Federal Government 38 

United States Coast Guard Reserve; bonus; veteran 35 

Temporarj^ member of; bonus ■ ''^~ 

United States Coast Guard Temporary Reserve, members of; on full time 

duty with pay; bonus 107 

Vacation, accumulated; veteran; leave of absence ; step-rate increments 47 



126 



P.D. 12. 



Vacation pay; veteran; return to service of Commonwealth . 
Yeteran; bonus; honorable and dishonorable discharge 

United States Coast Guard Reserve 

" Existing state of war " ; allowances for dependent relatives 
Leave of absence; step-rate increments; accumulated vacation time 
PaATnenfc for military service credit; retirement; teacher 
Resident: bonus; evidence . 
DomicUe; bonus 
Settlement .... 
Tuition .... 
Retirement; amount of pension 

Contributions by Commonwealth 
Return to service of Commonwealth ; vacation pay 
War, conclusion of existing state of; statute; termination 

Existing state of : veteran , allowances for dependent relatives 
Warrants, discretion as to disapproval of certain items in; Governor and 

Council; legislative declarations 

Water, charge to towns for in 1946; Metropolitan District Commission 



O.0 

58 
35 
37 
47 
53 
34 
31 
41 
40 
54 
67 
55 
36 
37 

37 
97