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

Public Document No. 12 



Cbe Commonkoealtb o( ^as0ac()U0etts 



REPOBT 



ATTORNEY GENERAL 



Year ending June 30. 1947 




Publication of this Document Approved bt the State Porchasing Agent. 
7-'48. 24162. 



Public Docuraent No. 12 

Oe CommonUiealtJ) ofj^assacbusett^.A^tfcytMxi 
REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1946 



Publication of this Document Approved by the Commission on Administration and Finance. 

900. 7-'47. 21567. ,^ a ^ 

1947 



.: S^Mit Houoii. BOSTON 






Cbe Commonkuealtj) o( 9^assacbu8ttts 



Department of the Attorney General, 
Boston, January 14, 1948. 

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, 1947. 

Very respectfully, 

CLARENCE A. BARNES, 

Attorney General. 



C&e Commontoealt!) of ^a$0acl)U0ett0 



DEPARTMENT OF THE ATTORNEY GENERAL 
State House 



Attorney General 
CLARENCE A. BARNES 



First Assistant Attorney General 
George B. Rowell 



Assistarits 



Roger Clapp 
Nathan B. Bid well 
William S. Kinney 
Charles Shulman 
George P. Drury' 
George F. Fingold 
Michael A. Fredo 
David J. Coddaire 
Wm. Gardner Perrin 
Alfred E. LoPresti 



Herbert D. Robinson 
Norris M. Suprenant 
Sumner W. Elton 
William H. Sullivan 
Ernest Brenner 
Thomas F. McLaughlin 
Conde J. Brodbine 
Beatrice H. Mullaney 
Richard J. Cotter, Jr. 



Assistant Attorneys General assigned to Vetera7is' Division 
Nicholas DeLeo Joel L. Miller 

Assistant Attorneys General assigned t& Division of Employment Security 
Saul Gurvitz Joseph S. Mitchell 

Chief Clerk to the Attorney General 
Harold J. Welch 

List Clerk to the Attorney General 
James J. Kelleher 

Director of Division of Collections 
W. Forbes Robertson 

^ Specially assigned to N. Y., N. H. & H. R.R. and Boston Elevated Railway cases. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1946, to June 30, 1947 



Appropriations. 

Attorney General's Salary ......•• 

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

Expenses .....-••••• 

Settlement of damages by state-owned cars (G. L. (Ter. Ed.) c. 12, § 3B) 
Settlement of small claims (G. L. (Ter. Ed.) c. 12, § 3A) . 
Settlement of certain claims (Stat. 1946, Resolve 92) . 
Veterans' legal assistance .....••• 

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



Total 



Expenditures. 

For salary of the Attorney General ...... 

For salaries of assistants and others ...... 

For office expenses ....■••■■ 

For settlement of damages by state-owned cars (G. L. (Ter. Ed.) c. 12 

§3B) 

For settlement of small claims (G. L. (Ter. Ed.) c. 12, § 3A) 

For settlement of certain claims (Stat. 1946, Resolve 92) 

For veterans' legal assistance ....... 

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

Total 



$9,150 56 

169,572 58 

16,812 95 

8,000 00 

4,000 00 

5,000 00 

20,329 68 

553 46 



. $233,419 23 


$9,150 


54 


. 169,572 


58 


16,788 


75 


7,999 44 


3.998 


56 


5,000 


00 


20,291 


78 


303 


79 



$233,105 44 



The principal financial items of this report are in agreement with the Comptroller's 
books. 

Checked by JOSEPH A. PRENNEY. 

FRED A. MONCEWICZ, 

Comptroller. 



January 12, 1948. 



CI)e Commontoealtf) of 0^a0$ac|)U0ett0 



Department of the Attorney General, 
Boston, January 14, 1948. 

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, 1947, totahng 11,854, are tabulated as follows: 

Corporate franchise tax cases ......... 2 

Extradition and interstate rendition . . . . . . . .118 

Land Court petitions ........... 123 

Land damage cases arising from the taking of land : 

Department of Public Works ........ 58 

MetropoHtan District Commission ........ 2 

Metropolitan District Water Supply Commission . . . . .10 

Miscellaneous cases, including suits to require the filing of returns by corpora- 
tions and individuals and the collection of money due the Commonwealth 2,591 
Petitions for instructions under inheritance tax laws ..... 1 

Estates involving applications of funds given to public charities . . . 247 

Settlement cases for support of persons in state hospitals .... 78 

Pardons : 

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

c. 127, § 152, as amended ......... 151 

Workmen's compensation cases, first reports ....... 2,057 

Cases in behalf of Division of Employment Security ..... 1,005 

Cases in behalf of Veterans' Division ........ 5,411 

It has been my privilege to serve the people of the Commonwealth of 
Massachusetts as their Attorney General since January 17, 1945. During 
that period of time many new and important questions of law have arisen 
in the Commonwealth, some of which have been dealt with in my prior 
reports. 

Since my last report I have followed the custom developed in my prior 
years in office of conferring with the District Attorneys and their assist- 
ants. Many important problems have been considered by these law en- 
forcement officers of the Commonwealth at these conferences. As a result, 
certain suggestions have been made to the Legislature in the form of 
specific bills, most of which have been acted upon favorably by the Gen- 
eral Court except those which are pending before the present Legislature. 
As a result of the meetings held during the year 1946, commissions were 
set up to investigate matters involving sex crimes and juvenile delinquency. 



8 P.D. 12. 

Both of these commissions have reported to the Legislature, either in final 
or preliminary form. The matter of their reports has been discussed 
further with the District Attorneys and certain additional recommenda- 
tions have been or are to be made. It has seemed to me that the solution 
of these two problems will add greatly to the well-being of the Common- 
wealth, and no effort in these matters has been spared so far as the District 
Attorneys, their staffs, my assistants and myself are concerned. 

During the past year I have caused an audit of the depreciation allow- 
ances of the Boston Elevated Railway Company to be made by Price, 
Waterhouse & Company, and an engineering audit to be made by Cover- 
dale & Colpitts. I have previously submitted to every member of the 
Legislature a full and complete report concerning their findings in so far as 
they had reference to the declaratory judgment proceedings which were 
pending between the Commonwealth and the Boston Elevated with respect 
to these matters. In addition to this, I have conferred with the legislative 
Committees on Transportation and Metropolitan Affairs with respect to 
the legislation, which has now become law, through which the public 
eventually acquired complete ownership of the stock of the Boston Ele- 
vated Railway Company. In accordance with the instructions of the Legis- 
lature in the act establishing the Metropolitan Transit Authority, all 
actions between the Commonwealth and the Boston Elevated Railway 
Company have been discontinued. There is presently pending an action 
brought by the Boston Elevated Railway Company against the Metro- 
politan Transit Authority involving the question as to who should pay the 
capital gains tax, if any, on the transfer of the property of the Elevated. 
This action, I beheve, may be heard in the early part of the coming year. 

There is pending certain litigation between the Lowell Gas Light Com- 
pany and the Department of Public Utilities concerning the rates of the 
Lowell Gas Light Company. This important piece of litigation has been 
heard before a master appointed by the Supreme Judicial Court, and prob- 
ably the questions involved will be decided during the coming year. 

The 1946 Legislature passed an act to dissolve the Boston Holding 
Company, The constitutionality of this act has been challenged and the 
facts have been heard by a single justice of the Supreme Judicial Court. 
After the facts have been found in this case it will be reported to the 
Supreme Judicial Court, and the question of the constitutionality of this 
act will be finally determined at that time. 

In accordance with the pledge which I made to the people when I first 
assumed the office of Attorney General, I established a Veterans' Division, 
where the veteran, his widow, orphan or other dependent could receive free 
legal advice to the end that all of their rights might be protected. Two 
Assistant Attorneys General have devoted their entire time to this division. 

Over five thousand veterans and their parents, wives, widows and de- 
pendents, have been given legal advice by the Veterans' Division during 
the period of July 1, 1946, to June 30, 1947. 

This division followed veterans' legislation very closely during the 1947 
legislative session. In order to keep the veteran posted, monthly bulletins 
were issued setting forth laws which had been enacted. Current veterans' 



P.D. 12. 9 

news items of national importance were also printed in the bulletin. These 
bulletins were sent to veterans' services and veterans' organizations 
throughout Massachusetts, and also to radio, press and any other mediums 
which could reach the veteran. The newspapers and radio, through fea- 
ture stories, veterans' columns and their programs, have been most co- 
operative in calling this legal service to the attention of veterans. 

The problems confronting veterans change as time goes on and what 
might have been a serious situation to them two years ago is no longer an 
urgent problem. During the past year most of these involved bonus, real 
estate transactions, tax exemption on real estate, used car deals, evictions, 
licenses, reinstatement, civil service, claims, education and employment. 

Questions relating to bonus and discharges have decreased, and those 
concernijig contracts, real estate and taxation have increased during the 
last six months of the fiscal year. At the present time cases show a tend- 
ency toward difficulties which confront the veteran in his status as a 
civilian. 

Most of the cases of this division are handled by personal interviews in 
the office by Assistant Attorneys General Joel L. Miller and Nicholas 
DeLeo, but many telephone calls and letters are received each day from 
veterans or members of their families, veterans' services, veterans' or- 
ganizations or State, city and town departments seeking information or 
advice on matters affecting veterans. Inquiries are not only State-wide 
but also are from veterans in other States who consider Massachusetts 
their home. 

Many fraudulent practices have been brought to the attention of the 
division by veterans and every effort has been made to check such reports 
carefully. This division has constantly watched advertisements which 
would tend to mislead the veterans. 

The division has brought about the closing of one pharmacy school and 
has kept a watchful eye on institutions which fail to measure up to the 
standards to which the G. I. is entitled. 

A real estate agent with an "apartment finding service" was stopped 
from continuing this service because he was taking fees from veterans 
without making any effort to find apartments and with the full knowledge 
that no apartments were available. 

An "On the Job Training" program was made a success by this division, 
co-operating with one of the State departments, thereby enabling hun- 
dreds of veterans to profit by such training. 

Veterans have been helped in their dealings with used car dealers who 
have attempted to defraud them, and many such dealers have been pre- 
vented from continuing to sell defective autos to veterans and from other 
practices of a similar nature. 

A great many veterans are now seeking legal counsel of this division 
before they sign contracts or agreements of any nature to find out just 
what their legal rights would be. This is very gratifying, because it has 
been the hope and purpose of this division to become so well known among 
the veterans that they will call upon it for legal advice before they are 
confronted with legal entanglements. 



10 P.D. 12. 

I feel that there has been estabHshed a legal service of real value to the 
veteran and his family, and I earnestly hope that if they are in need of 
legal advice they will continue to communicate with this division. I 
recommend the continuance of this Veterans' Division, 

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 through informal advice. I have sought at 
all times, by the help of my able assistants, to conduct this department 
with efficiency and high standards in fairness to all people. 

The development of the airport at Boston and the Port of Boston has 
brought many involved legal problems. On many 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 In- 
ternational Airport. Many of the problems of the development of the 
Port of Boston have required substantial attention from myself or my 
assistants. 

I have not attempted in this report to set forth in detail many of the ac- 
tivities of the department. It is sufficient to say that I have personally, 
and with the help of my assistants, acted as the people's attorney through- 
out my administration. I am convinced 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. 



OPINIONS. 



Department of Public Works — Registrar of Motor Vehicles — Authority of 

Each — Appeals. 

July 15, 1946. 

Hon. Joseph F. Cairnes, Commissioner of Public Works. 

Dear Sir: — You have asked my opinion on four questions with 
regard to the relation of the Department of Public Works to the Registry 
of Motor Vehicles, in view of the provisions of St. 1946, c. 234. 

1. Your first question is: 

"Should the Commissioners continue to give hearings to persons ag- 
grieved by decisions of the Registrar? 

If the answer is in the affirmative, by what authority may the Commis- 
sioners direct the Registrar to restore an automobile driver's license or 
registration when they annul his decision?" 

I answer this question in the affirmative. 

St. 1946, c. 234, amended G. L. (Ter. Ed.) c. 16, as previously amended, 
by striking out section 5 and inserting in its place the following new sec- 
tion 5 which reads: 

"There shall be in the department, but in no manner subject to its con- 
trol, a division of motor vehicles, to be known as the registry of motor 
vehicles. With the approval of the council, the governor shall appoint 
for a term of five years, and may remove for cause, an officer to be known 
as the registrar of motor vehicles who shall be the executive and adminis- 
trative head of the division. In addition to the deputy registrar, assistant 
to the registrar, hearings officers, supervising inspectors, investigators and 
examiners authorized to be appointed by the registrar under section 
twenty-nine of chapter ninety, he may appoint such other officers and 
employees as may be necessary to carry out the work of the division. 
In the event of a vacancy in the office of registrar, his powers and duties 
shall be exercised and performed by the deputy registrar until a registrar 
is duly qualified. A license to operate motor vehicles issued by a registrar 
shall become valid upon the effective date thereof, notwithstanding the 
fact that the registrar who issued the same ceased to hold said office prior 
to said effective date." 

The word "control," as used in the first sentence of the above section 5, 
does not include within its meaning the quasi-judicial power vested in the 
Department of PubUc Works by G. L. (Ter. Ed.) c. 90, § 28, to review 
decisions of the Registrar upon appeals and to make orders affirming, 
modifying or annulling such decisions, and the Registrar is required to 
effectuate such orders. The provisions of said section 28 relative to ap- 
peals to the department have not been specifically repealed by the terms of 
the new section 5 and it cannot well be said that there is a repeal by im- 
plication. The phrase "in no manner subject to its control," as used in 
the new section 5, appears from the context of said section to relate to 



12 P.D. 12. 

such administrative and executive control as is commonly exercised by- 
departments over their divisions and not to such authority as is exercised 
by this department acting in a quasi-judicial capacity upon appeals of 
motor vehicle owners from rulings or decisions of the Registrar. 

2. Your second question is: 

"Should the Registrar file a separate annual report or should the report 
of the Registry be continued as part of the annual report of the Depart- 
ment? 

"^'If the report of the Registrar is to be a part of the Department's report, 
do the Commissioners, as signatories, have authority to edit the report 
of the Registry?" 

Inasmuch as the provisions of said new section 5 make the Registrar of 
Motor Vehicles "the executive and administrative head" of the division, 
and the division is not in such respects under the "control" of the De- 
partment of Public Works, he should file a separate annual report which it 
is not within the authority of the Commissioners of Public Works to edit. 
Whether or not the Registrar's report, over his signature, is as a matter 
of form to be set forth in the report of the Department of Public Works, 
which latter report is signed by the Commissioners, would appear to be a 
matter of practice to be determined by mutual agreement rather than one 
of law. 

3. Your third question is: 

"Should a separate budget be prepared by the Registry? 
"If so, do the Commissioners have authority to revise the budget pre- 
pared by the Registrar?" 

In \iew of the considerations to which I have already referred, I am of 
the opinion that the Registrar should prepare a separate budget, which 
the Commissioners of the Department of Public Works have no authority 
to revise. 

4. Your fourth question is: 

"Does the Commissioner of Public Works still retain the authority 
granted under G. L. c. 26, § 8A, to designate a representative to act in 
place of the Registrar of Motor Vehicles on the Board of Appeal?" 

I answer this question in the affirmative. 

Said new section 5 does not specifically repeal the provision of G. L. 
(Ter. Ed.) c. 26, § 8A, as amended, under which the Commissioner of 
Public Works may appoint a representative of the Registrar of Motor 
Vehicles to act in place of the Registrar as a member of the Board of 
Appeal on Motor Vehicle Liability Policies and Bonds, which board serves 
in the Division of Insurance of the Department of Banking and Insur- 
ance. Such provision is not repealed by implication from the terms of 
said new section 5, for the authority to appoint a representative of the 
Registrar as a member of the said Board of Appeal, which board is not in 
the Division of Motor Vehicles, is not the exercise of "control" over the 
Division of Motor Vehicles such as is prohibited by the first sentence of 
said new section 5. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 13 

Massachusetts Aeronautics Commission — Quorum — Authority to Act. 

July 22, 1946. 
Massachusetts Aero7iautics Commission. 

Gentlemen: — I am in receipt from you, through the Director, of the 
following request for my opinion: 

"At a meeting of the Aeronautics Commission held on Monday, July 15, 
I was directed to request an opinion from you as to the application of the 
provisions of G. L. c. 4, § 6, par. 5, on acts of the Commission. 

"The specific question at issue is this: Does this, or any other provision 
of law, require that official acts of the Commission shall be based upon a 
majority vote of the full Commission or may its statutory authority be 
exercised by the vote of a majority of a quorum which would be less than 
a majority of the entire Commission of five members." 

I answer your question to the effect that ofiicial acts of the commission 
are required to be based upon a majority vote of the full commission. 
Although a majority of the commission constitutes a quorum which may- 
transact necessary business, a vote by a majority of such quorum, wheli 
it is less than a majority of the entire commission, does not constitui \ 
action by the commission as such. 

G. L. (Ter. Ed.) c. 4, § 6, cl. 5, with reference to construing statutes, '. 
which you refer, reads : 

"Fifth, Words purporting to give a joint authority to, or to direct any 
act by, three or more public officers or other persons shall be construed as 
giving such authority to, or directing such act by, a majority of such 
officers or persons." 

When the Legislature desired to provide that a statute should be so 
construed as to effectuate action by a majority of a quorum of certain 
public officers less than a majority of the whole body, it has specifically 
so stated, as in clause 7 of said section 6. The rule for construing statutes 
set forth in said clause 5 makes no such provision for construing statutes 
relative to boards or commissions of public officers generally. 

The rules for construing statutes set forth in the various clauses of said 
section 6 are, by the terms of such section, to be "observed, unless their 
observance would involve a construction" of a statute "inconsistent with 
the manifest intent of the law-making body or repugnant to the context 
of the same statute." 

The rule laid down in said clause 5 is not inconsistent with what appears 
to have been the manifest intent of the Legislature in enacting G. L. (Ter. 
Ed.) c. 6, §§ 57, 58 and 59, inserted by St. 1946, c. 583, § 1, creating the 
Massachusetts Aeronautics Commission, and in enacting sections 2 to 5 
of said chapter 583. Indeed, the rule appears to be in harmony with such 
intent and not to be repugnant to the context of such statutes, for in gen- 
eral the duties laid upon the commission in such measures are of such a 
character as may well be deemed to require the considered agreement of a 
majority of the whole commission, while the carrying out of the orders of 
the commission and the performance of the bulk of the detail of its woik 
are to be done by a director who is its executive officer. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



14 P.D. 12. 

Department of Public Works — Bridges — Public Hearings — State 

Highways. 

July 22, 1946. 

Hon. Joseph F, Cairnes, Commissioner of Public Works. 

Dear Sir : — In a recent letter you have written : 

"Chapter 690 of the Acts of 1945 provides, subject to certain conditions, 
for the transfer on January 1, 1946, to the Department of Pubhc Works 
of the care, control and maintenance of certain highway bridges, after 
which date each bridge 'shall be a state highway.' 

"In view of the fact that the bridges referred to are made state highways 
under chapter 690, will you please advise as to whether this legislation 
eliminates the necessity for holding public hearings as required under 
section 5 of chapter 81?" 

I answer your question to the effect that since the inclusion in the State 
highway of the existing bridges referred to in St. 1945, c. 690, is mandatory 
and occurs not by reason of any determination of the Department of Pub- 
lic Works but by virtue of the legislative command, the provisions of 
G. L. (Ter. Ed.) c. 81, § 5, as amended, requiring a hearing before your 
department determines that a way should be laid out or taken charge of 
by the Commonwealth, are not applicable to those bridges which are the 
subject matter of said chapter 690. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Structures in Tidewaters — Grants — Licenses — Compensation. 

July 22, 1946. 

Hon. Joseph F. Cairnes, Commissioner of Public Works. 

Dear Sir: — You have advised me that one Norton filed a petition 
for a license to build a wharf and elevator railway in the tidewaters of 
Edgartown Harbor under the provisions of G. L. (Ter. Ed.) c. 91, § 14, 
that a license was granted, and that under the terms of G. L. (Ter. Ed.) 
c. 91, § 22, compensation to be paid for the right granted was determined 
by tile Governor and Council to be the sum of four hundred dollars. 

You have also advised me that the structures in question are of the same 
character and no greater in extent than those authorized to be erected 
and maintained at the same place by one John O. Morse by virtue of St. 
1835, c. 59, the remains of structures previously erected having been 
destroyed in 1944. 

With relation to the foregoing facts which you have set forth you have 
asked my opinion as follows: 

"Your opinion is requested as to whether or not the statute of 1835 
constituted a grant of the interests of the Commonwealth in this location, 
which the engineers of this department agree is the same location in part 



P.D. 12. 15 

as is covered by the license, to such an extent that no charge should be 
made by the Governor and Council, acting under the provisions of G. L. 
c. 91, § 22." 

If the said Norton is the owner of the land formerly owned by said 
Morse above low water mark adjoining the place which would be occupied 
by said structure, I am of the opinion that no charge for the license may 
be made. If he is not such owner, the charge may properly be imposed. 

Said St. 1835, c. 59, reads: 

"Be it enacted by the Senate and House of Representatives, in General 
Court assembled, and by the authority of the same. That John O. Morse be, 
and he hereby is authorized and allowed to build, erect, continue and 
maintain a marine railway and wharf, in the harbor of Edgartown, in 
Dukes County, below low water mark, adjoining his land, and to extend 
the same into the channel of said harbor, to where there may be a depth 
of water equal to that at the other wharves erected in said harbor, and 
that he be allowed all the privileges heretofore granted to proprietors of 
wharves, or that may hereafter be granted to proprietors of wharves, or 
marine railways in said harbor, for the use, occupation, and accommoda- 
tion of said wharf and railway: provided, that this grant shall in nowise 
interfere with the legal rights of any other person or persons whatever." 

Legislative enactments similar to said chapter 59, conferring authority 
to erect and maintain structures over tidewater prior to the passage of 
St. 1869, c. 432, constituted irrevocable grants rather than licenses in the 
absence of provisions in them showing a contrary intent. 

Fitchburg R.R. Co. v. B. & M. R.R., 3 Cush. 58, 87. 
Bradford v. McQuestion, 182 Mass. 80, 81, 82. 
Treasurer & Receiver General v. Revere Sugar Refinery, 247 Mass. 483. 
Commissioner of Public Works v. Cities Service Oil Co., 308 Mass. 
349, 353. 

St. 1869, c. 432, provided that such authority when granted thereafter 
should be revocable. 

The said St. 1835, c. 59, contains nothing to indicate that the authority 
therein granted was to be revocable. 

The grant by the terms of the chapter was attached to the "adjoining 
land" referred to therein and inures to the benefit of the owner. 

Treasurer & Receiver General v. Revere Sugar Refinery, 247 Mass. 

483, 489. 
Fitchburg R.R. Co. v. B. & M. R.R., 3 Cush. 58, 86, 87. 

Application by the present owner for a license and its acceptance do 
not affect his rights under the grant. 

Treasurer & Receiver General v. Revere Sugar Refinery, 247 Mass. 
483, 491. 

Nor would mere non-exercise of the rights granted destroy the express 
grant. 

Atlanta Mills v. Mason, 120 Mass. 244, 251. 

It follows from these considerations upon the facts of which you have 
advised me that Norton, if he is the present owner of the said adjoining 



16 P.D. 12. 

land, was entitled to erect the structures in question by virtue of the 
legislative grant of 1835 and that he did not require a license at the present 
time for that purpose. It would seem, then, that he should not be re- 
quired to pay compensation under said chapter 91, section 22, since he had 
already, by act of the Legislature, been granted the authority to exercise 
the rights for which compensation is now called for. Doubtless all the 
circumstances of this matter had not been called to the attention of the 
Governor and Council before they made their determination. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veteran — Retirement under G. L. {Ter. Ed.) c. 32, §§ 56, 57 — Boston 

Police Officers. 

July 24, 1946. 

Mr. Thomas F. Sullivan, Police Commissioner of Boston. 

Dear Sir : — You have asked my opinion upon two questions relative 
to the application of G. L. (Ter. Ed*) c, 32, § 57, as amended. 

This is a matter upon which, under the long-established practice and 
procedure of this department, the Attorney General may with propriety 
advise you (see VII Op. Atty. Gen. 735; V Op. Atty. Gen. 394; IV Op. 
Atty. Gen. 451). 

Your first question reads: 

"Does the word 'veteran' as used in section 57, mean any veteran or 
is the meaning of this word confined to the definition of a veteran as set 
forth in section 56?" 

I answer this question to the effect that the word "veteran" as used in 
G. L. (Ter. Ed.) c. 32, § 57, as amended, is limited by force of the specific 
description of a veteran set forth in section 56 of said chapter 32 and 
does not include a veteran of World War II. (See phraseology of St. 
1920, c. 574, §§ 1, 2 and 4, the original source of said sections 56 and 57.) 
The Legislature has not seen fit to amend said sections 56 and 57 so as to 
include veterans of World War II within their provisions. 

The provisions of the new retirement act, G. L. (Ter. Ed.) c. 32, as 
amended by St. 1945, c. 658, have employed a broader definition of the 
word "veteran" suSicient to include veterans of World War II (section 1), 
and in sections 6, 25 and 57A thereof provision has been specifically made 
with reference to the retirement of all veterans who are members of the 
system. Such provisions will be applicable to police officers of Boston 
when the new retirement act becomes effective therein. 

Your second question reads: 

"Is the age limit of 'fifty years' as set forth in section 56 to be con- 
sidered in connection with the provisions of section 57, or is petition filed 
under the provisions of section 57 to be considered without regard for 
the age of the petitioner?" 

With relation to the class of veterans described in said section 56, to 
which alone the provisions of said section 57 apply, no requirement that 
a veteran to be retired under section 57 shall have attained fifty years of 
age has been made by the Legislature. A provision relative to the attain- 



P.D. 12. 17 

ment of fifty years of service has been made with regard to those veterans 
who are to be retired under the provisions of section 56, but this has not 
been made apphcable to those who may be retired under said section 57 
upon petition. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Constitutional Law — State Agency to Administer Federal Program — School 

Luncheons. 

July 24, 1946. 

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

Sir : — You have requested my opinion in a recent communication upon 
two questions relative to State agencies co-operating with the United 
States Department of Agriculture under the provisions of the "National 
School Lunch Act." 

Your questions are as follows : 

"1. Do I, as Governor, have authority to designate an agency for the 
purposes outlined above? If so, must this agency be the Department of 
Education? Have I authority to designate the Department of Education 
and the Department of Public Welfare acting jointly through a State 
Director of School Food Programs as the State agency designated to carry 
out the provisions of this legislation? 

"2. Would any of the agencies referred to in Question 1 have authority 
to enter into an agreement in behalf of the Commonwealth with the U. S. 
Department of Agriculture to administer this program for the benefit of 
private schools not operated for profit as well as public schools?" 

1. I answer your first question to the effect that by virtue of the pro- 
visions of St. 1942 (Sp. Sess.) c. 13, §§ 2 (13) and 3, you have authority 
to designate an agency to administer the provisions of the said Act of 
Congress within the Commonwealth. I know of no reason why your choice 
of such an agency should be limited to the Department of Education and 
I am of the opinion that you may, if you deem best, designate the Depart- 
ments of Education and Public Welfare to act jointly as such agency, and 
such joint agency may function through an official to be called a State 
Director of School Food Programs. 

2. In relation to your second question, I am of the opinion that the 
agency appointed by you would have authority to enter into an agreement 
on behalf of the Commonwealth with the United States Department of 
Agriculture to effectuate the provisions of said National School Lunch 
Act (U. S. Pub. Law 396 — 79th Congress, approved June 4, 1946), ex- 
cept that it may not agree to pay money of the Commonwealth to non- 
profit private schools as matching Federal funds expended for such pur- 
pose or otherwise. 

Such a payment by the State agency is prohibited by the provisions of 
the Constitution of Massachusetts. Amendments, Art. XLVI, sec. 2. 

In so far as the State agency might agree under the program established 
with relation to school lunches to implement the Congressional Act by 
distributing moneys of the United States, not of the Commonwealth, to 



18 P.D. 12. 

private as well as public schools on behalf of the United States, such action 
would not be prohibited by the provisions of the Constitution of Massa- 
chusetts (see Attorney General's Report, 1942-1944, p. 74). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Application of Veterans^ '^ Bonus" under St. 1945, c. 731. 

July 31, 1946. 

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

Dear Sir: — In a recent letter relative to certain applications for the 
"bonus" under St. 1945, c. 731, by members of the regular armed forces 
of the United States who had enhsted and were serving therein at and for 
a considerable period before September 16, 1940, you have called attention 
to the cases of such members who had actually established residences in 
Massachusetts for more than six months prior to September 16, 1940, but 
who did not have such residences in the Commonwealth at the time of 
their original entry into such forces. 

You have asked me whether the six months of residence required by the 
statute as one of the prerequisites to the receipt of a bonus is to be regarded, 
with reference to such members, as the six months immediately prior to 
September 16, 1940, or as the six months prior to their original entry into 
the service of the armed forces. 

Said St. 1945, c. 731, § 1, reads: 

"Upon application, as hereinafter provided, there shall be allowed and 
paid out of the treasury of the commonwealth, without appropriation and 
without a warrant from the governor and council, 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 termina- 
tion of the present war, as declared by presidential proclamation or con- 
current resolution of the congress, and shall have received a discharge or 
release, other than a dishonorable one, from such service, the sum of one 
hundred dollars; 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 and his enlistment, induction or commission in said 
armed forces was credited to the quota of Massachusetts under the federal 
selective service act." 

I am of the opinion that the period of six months' residence is to be 
calculated as from September 16, 1940, the words "entry into service" 
read in conjunction with the words "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," being intended 
by the Legislature to refer, in my opinion, to the beginning of service with 
the armed forces during World War II rather than to the original time of 
joining such forces. 

Such an interpretation is in harmony with the general intent of the 
Legislature as shown by the context of the statute read in the light of its 
title and its emergency preamble. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 19 

Amplication of Veterans^ "Bonus" under St. 1946, c. 581. 

July 31, 1946. 

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

Dear Sir: — You have asked my opinion relative to the meaning of 
the term "continental limits of the United States," as it appears in St. 
1946, c. 581, § 1, par. 2, with relation to applicants for the "bonus." 

The Attorney General, following a long line of practice and procedure 
of this department, does not give general interpretations of statutes nor 
attempt to enunciate rules concerning the applicability of statutory terms 
to hypothetical situations. 

All questions of fact with relation to applications for the "bonus" are 
peculiarly for your determination, and each application should be con- 
sidered by you in the light of the particular facts and circumstances con- 
nected with the applicant's service in World War II. 

For your guidance in passing on such applications, let me say that the 
portion of said section 1 where the term occurs reads: 

"Payments under this act which are in addition to the said sum of one 
hundred dollars shall be 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." 

You have advised me that — 

"The records of some applicants who served in the Navy indicate that 
they were ' shore-based ' and their tour of duty took them beyond the three- 
mile limit but at no time did they enter into any theatre of war. The 
question in this type of case is whether it was the intent of the Legislature 
to make such applicants eligible for the additional two hundred dollar 
payment." 

Irrespective of whether applicants entered into any theatre of war, if 
their duties required them to go beyond the thi'ee-mile limit from our 
coasts not as merely incidental to shore-based duty but in the course of 
active service for a considerable period or periods, they may fairly be said 
to have performed "active service outside the continental limits of the 
United States" within the meaning of the statute. 

Service in the Canal Zone may fairly be treated as outside the continental 
limits of the United States under the instant statute. You have advised 
me that Canal Zone service is regarded, by virtue of an opinion of the 
United States Judge Advocate General, as entitling the one so serving to 
"foreign service pay" under the provisions of the United States statutes. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



20 P.D. 12. 

Labor Relations Commission — Rules and Regulations — Scope of 
Commission ' s Authority. 

Aug. 6, 1946. 
Massachusetts Labor Relations Commission. 

Gentlemen: — In a recent communication you have called my atten- 
tion to article II, section 3, of the rules and regulations of your commis- 
sion, with particular reference to the last two sentences thereof, and you 
have asked my opinion upon the "status" of such rules. 

In my opinion the rule or regulation embodied in the last two sentences 
of said section 3 is one which your commission had no authority to make 
under the provisions of G. L. (Ter. Ed.) c. 23, § 9R, and is void. 

Said chapter 23, section 9R, reads : 

"The commission shall have authority from time to time to make, 
amend and rescind such rules and regulations as may be necessary to carry 
out the provisions of sections nine to nine Q, inclusive, and chapter one 
hundred and fifty A. Such rules and regulations shall be effective upon 
publication in the manner in which the commission shall prescribe." 

By said chapter 150 A, section 5 (c), you are authorized to investigate 
questions affecting industry and trade which arise concerning the repre- 
sentation of employees for the purpose of collective bargaining. 

Said section 5 (c) reads: 

" (c) Whenever a question affecting industry and trade arises concern- 
ing the representation of employees, the commission may investigate such 
controversy and certify to the parties, in writing, the name or names of 
the representatives who have been designated or selected. In any such 
investigation, the commission shall provide for an appropriate hearing 
upon due notice either in conjunction with a proceeding under section six 
or otherwise, and may take a secret ballot of employees, or utilize any 
other suitable method to ascertain such representatives." 

The rule or regulation in question as appearing in Article II of your 
rules reads: 

"Article II. 

"Procedure under Section 5 of the Law Relative to Certification. 

^^ Section 1. In initiating action under section 5, a petition requesting 
the Commission to investigate and certify the name or names of the 
representatives designated or selected for the purposes of collective bar- 
gaining shall be filed with the Commission. Said petition must be signed 
by the petitioner. 

'^Section 3. If it appears to the Commission that an investigation should 
be instituted, it shall so direct and shall provide for an appropriate hearing 
upon due notice. The Commission or its agents shall proceed with such 
investigation and in connection therewith shall prepare and cause to be 
served upon the petitioner, upon the employer involved, and upon any 
known individuals or labor organizations purporting to act as representa- 
tives of any employees directly affected by such investigation, whether 
named in the petition or not, a notice of hearing upon the question of 
representation before the Commission, at a time and place fixed therein. 
A copy of the petition shall be served with such notice of hearing. For 



P.D. 12. 21 

the purpose of informing the employees affected by the certification proceedings, 
the posting of notice or orders of the Commission at the place of business of 
the employer where readily accessible to the employees, shall constitute due 
notice to such employees. Copies of the petition and the notice of hearing to 
be held thereon shall be so posted J' 

While it is true that in regard to a controversy or question concerning 
"the representatives of any employees" notice to the employees affected 
of the statutory hearing may be considered as part of the "due notice" 
called for by said section 5 (c), it does not follow that the requirement for 
notice by posting at the place of business of the employer is one which your 
commission is authorized to require. 

Although it may be that the Legislature itself might under certain 
circumstances authorize an entry upon an individual's property for the 
performance of an act of brief duration, involving no considerable damage 
to the realty and incident to the performance of a required official duty, 
such as posting a notice, without violating constitutional provisions 
against appropriating property to public uses without compensation (see 
Mass. Const., Pt. I, Art. X; Winslow v. Gijford, 6 Cush. 327), the Legis- 
lature has not empowered your commission to make such an authoriza- 
tion nor will a person entering upon the property of an employer under 
the provisions of the said rule be exempt from an action for trespass. 

Furthermore, although the manner of giving "due notice" of a hearing 
is not set forth in said section 5 (c), nevertheless the Legislature appears 
to have dealt fully with the mode in which notice of a hearing, which 
notice may be fairly said to be a part of "process and papers of the com- 
mission" referred to in section 7 (4) of said chapter 150A, shall be given. 
The subject appears to be covered by the provisions embodied in the first 
two sentences of section 7 (4). This section in its applicable parts reads: 

"Section 7. For the purpose of all hearings and investigations which, 
in the opinion of the commission, are necessary and proper for the exercise 
of the powers vested in it by sections five, six . . . 

"(4) Complaints, orders and other process and papers of the commis- 
sion, its member, agent or agency may be served either personally or by 
registered mail or by telegraph or by leaving a copy thereof at the principal 
office or place of business of the person required to be served. The verified 
return by the individual so serving the same setting forth the manner of 
such service shall be proof of service of the same, and the return post office 
receipt or telegraph receipt therefor when registered and mailed or tele- 
graphed as aforesaid shall be proof of service of the same. ..." 

The subject having been thus fully covered by the Legislature and no 
authorization for the giving of notice by posting on the premises of an 
employer being included therein or otherwise vested in your commission, 
it follows that your commission has no power under the terms of said 
chapter 150A or chapter 23, section 9R, to make provision for notice by 
such posting. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



22 P.D. 12. 

Civil Service — Military Leave of Absence — Promotional Examinations. 

Aug. 12, 1946. 
Hon. Thomas J. Greehan, Director of Civil Service. 

Dear Sir: — In a recent letter you have asked my opinion as to whether 
under the provisions of St. 1945, c. 610, as amended by the inserting 
therein by St. 1946, c. 271, of new sections 3D and 3E, an apphcant for 
promotion given a quahfying examination in 1946 "because" by reason 
of mihtary service he "was unable to compete in a competitive promotional 
examination" in 1943, and passing the same, is to be placed on an eligible 
list established as the result of the said promotional examination in 1943, 
or whether he should be placed on an eligible list established in 1941 as 
the result of a promotional examination held on April 16, 1941, at which 
last-mentioned date he was not eligible to take the said examination of 
April 16, 1941. 

The pertinent provisions of said sections 3D and 3E read as follows: 

"Section 3D. Whenever any civil service employee is or was unable 
to compete in a competitive promotional examination because of his 
absence in said military or naval service, he shall, if he so request in writing 
not later than six months after September fii'st, nineteen hundred and 
forty-six or the date of termination of his said military or naval service 
in case it is terminated after said September first, be given a qualifying 
promotional examination. . . . 

"Section 3E. If there is an eligible list in existence, the name of any 
person passing an examination provided in section three D shall be placed 
thereon in the order of percentage, and if there is more than one eligible 
list he shall be placed on the first list established unless prior to placement 
thereon he notifies the director otherwise. ..." 

You have informed me that the practice of your department, based 
upon its construction of the applicable statutes prior to 1946, had been 
to place such an applicant upon the first list established as a result of the 
examination in the later year and not upon the list earlier established as a 
result of the examination held in the earlier year which an applicant was 
not eligible to take. 

Said section 3E provides that an applicant such as you have described, 
passing such a promotional examination, shall be placed "if there is more 
than one eligible list . . . 07i the first list established. . . ." 

The quoted words prior to the amendment of 1946 appeared in sec- 
tion 3D. By the said amendment they have been placed in section 3E, 
but the Legislature has not made plain what it intended to mean by the 
words "first list established." 

I am of the opinion, however, that by the words "first list established" 
the Legislature did not intend, in enacting said chapter 271, your de- 
partmental interpretation of the said words being presumably known to 
them, that they should embrace within their scope a list established as a 
result of an earlier examination which an applicant was not eligible to 
take, even if such list were older than one or more lists established as a 
result of an examination which he would have been able to take except 
for his absence due to service with the United States forces. It was in- 
tended that such an applicant should be placed upon the first Hst es- 



P.D. 12. 23 

tablished as a result of the examination which he would have been eligible 
to take, and that the construction which j'ou have put upon said words is 
correct. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Soil Conservation — Committee — Districts — Scope of Authority — 

Supervisors. 

Aug. 12, 1946. 

Hon. Frederick E. Cole, Commissioner of Agriculture. 

Dear Sir : — In a recent letter you have asked my opinion upon a 
number of questions involving the construction of G. L. (Ter. Ed.) c. 128B, 
inserted by St. 1945, c. 531. The Attorney General, following a long line 
of practice and procedure, does not attempt to make general interpreta- 
tions of statutes not necessary to the correct performance of any specific 
duty immediately required of the head of a department. 

For your guidance, however, in relation to the carrying out of the pro- 
visions of said statute under which you are the chairman ex officio of the 
newly established "State Soil Conservation Committee," let me say that 
the "Soil Conservation Districts" established under the statute are, as 
the words are ordinarily used, "political subdivisions of the Common- 
wealth" and like "improvement" and other districts provided for by the 
Legislature are quasi corporations to which certain powers are granted 
(Costello V. North Easton Village District, 205 Mass. 54)1 

"District supervisors" appointed by the said committee or elected by 
the voters of the district under the terms of said statutes do not, from the 
context of the measure, appear to be officers of the Commonwealth. No 
particular provision is made for their taking an oath of office, and it would 
not seem, therefore, that they are required so to do. 

It is provided in section 7 that the supervisors of a district shall have a 
common seal, and it would seem as a necessary implication from such 
authorization that the supervisors of each district should have a common 
seal and use it upon all documents given by them on which a seal is re- 
quired. 

As to the personal liability of the district supervisors, as to which you 
have asked, inasmuch as they are public officers they will not be liable as 
such for wrongs for which the district as a quasi corporation may be liable, 
but like all public officers may be liable in actions of tort under certain 
circumstances for wrongs committed by them individually outside the 
scope of their authority. 

The activities of the several "districts" thereunder do not from the 
context of the measure appear to be activities of the Commonwealth, 
and, consequently, no duty lies upon the State Auditor to audit their 
several accounts (G. L. (Ter. EdO c. 11, § 12). The duty to audit such 
accounts is not by any provision of the said statute placed upon any other 
official, nor are the accounts of such districts included in any other statutes 
of which I am aware among those required to be audited by any other 
designated official or officials, including the State Soil Conservation Com- 
mittee. Moreover, in section 6 of said statute, the Legislature has pro- 
vided that the "supervisors shall provide ... for an annual audit of the 
accounts of receipts and disbursements." It would seem, therefore, that 



24 RD. 12. 

the supervisors in each district should themselves provide for an annual 
audit by recognized and experienced officers. 

By section 7, paragraph 7, of said statute the district supervisors are 
authorized to accept contributions both from the Commonwealth and 
from various other sources, public and private. Authority to accept con- 
tributions from sources other than the Commonwealth does not appear 
to have been given to the State committee, and its authority to allot 
money appears to be limited to that appropriated by the General Court 
(said c. 128B, § 3). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — - Transfers — Change in Employment from Park to Sewerage 
Division of Metropolitan District Commission. 

Aug. 26, 1946. 

Hon. W. T. Morrissey, Commissioner, Metropolitan District Commission. 

Dear Sir : — You have asked my opinion as to whether a change in 
employment of an engineer in your department from the Park Division 
to the Sewerage Division or vice versa would constitute a transfer within 
the provisions of the Civil Service Law so as to require notice to the em- 
ployee and consideration as to seniority. 

I am of the opinion that such a change in employment would constitute 
a transfer subject to the provisions of the Civil Service Law. 

The Park Division and the Sewerage Division are separate divisions 
within the Metropolitan District Commission, established by law under 
authority of G. L. (Ter. Ed.) c. 28, § 3, each having its own director. 

While the Metropolitan District Commissioners are given authority to 
transfer or remove employees, including engineers, by section 4 of said 
chapter 28, nevertheless, the context of said section 4 shows plainly that 
transfers and removals are to be made subject to the provisions of G. L. 
(Ter. Ed.) c. 31, the Civil Service Law, since exemption from the terms of 
said chapter 31 is given in said section 4 specifically to a single employee 
only, the secretary. 

Transfers are referred to in the Civil Service Law (said c. 31, § 16A, as 
amended by St. 1945, c. 703) with relation to transfers assented to by the 
employee, and the phrase "and the approval and consent of the appointing 
authority in the department or departments involved" thus indicates a 
legislative intent that a "transfer" may be made within a single depart- 
ment as well as between two departments. 

There is nothing in the phraseology of section 43 of said chapter 31, as 
amended by St. 1945, c. 667, wherein transfers are also referred to, to 
indicate that the word "transfer" is used in any different sense than in 
said section 16 A, both sections having been reenacted by amendment in 
their present form in the same year, 1945. 

Said section 43 of chapter 31, as thus amended, in its applicable parts 
provides : 

"Every person holding office or employment . . . shall not be dis- 
charged, removed . . . transferred from such office or employment with- 
out his consent, . . . except for just cause and for reasons specifically 
given him in writing. . . ." 



P.D. 12. 25 

Rule 27 of the Civil Service Rules and Regulations has been rendered 
ineffective by the passage of the said amending act of 1945. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — Promotions — Seniority. 

Aug. 26, 1946. 

Hon. William T. Morrissey, Commissioner, Metropolitan District 

Commission. 

Dear Sir: — You have asked me to "clarify . . . the meaning of 
chapter 103 of the Acts of 1946 as it applies to provisional and permanent 
promotions." You have further asked me to give you "a ruling on the 
meaning of paragraph A of chapter 103 as it pertains to the number of 
eligible employees in the engineering department; that I may select from, 
in making three permanent promotions from one grade to the next higher 
grade. All the employees under consideration are now in the same grade 
and have been permanently employed in this grade for more than three 
3'ears." 

The Attorney General, following a long line of practice and procedure of 
his predecessors in office, does not give opinions as to the general inter- 
pretation or meaning of statutes. 

For your guidance, however, let me say that there is no provision of the 
Civil Service Law which authorizes you to promote provisionally any 
permanent employee to the next higher grade than that in which he is now 
working. The provisions of St. 1946, c. 103, provide for provisional ap- 
pointment but not for provisional promotion. 

In making selection of an employee to be promoted under G. L. (Ter. 
Ed.) c. 31, § 15, paragraph A, as inserted by said chapter 103, from those 
in the next lower grade, the number of those who may be ehgible is not of 
consequence. They are to be selected according to seniority in "length of 
service." The quoted phrase as now employed in said section 15, para- 
graph A, as amended, means length of service with the Commonwealth or 
a political subdivision thereof as defined in G. L. (Ter. Ed.) c. 31, § 15, 
paragraph D, as amended, not merely in the grade where presently at 
work. This is made plain by the fact that said section 15, before its 
recent amendments, provided that seniority for the purpose of such 
selection from a lower grade was to be based on "length of service therein, " 
"therein" obviously referring to the lower grade itself. The omission of 
the word "therein" from the statute as it now reads indicates a plain 
legislative intent that such seniority is to be seniority in the Common- 
wealth's service or that of its political subdivisions, and not in that of the 
particular lower grade from which promotion is contemplated. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



26 P.D. 12. 

Public Welfare Employee — Retention after Seventy under St. 1941, c. 634- 

Aug. 27, 1946. 
Hon. Patrick A. Tompkins, Commissioner of Public Welfare. 

Dear Sir: — You have asked my opinion as to whether you have the 
right to continue in employment a person engaged in carrying out the 
provisions of St. 1941, c. 634, who is now over the age of seventy and 
who by reason of his age at the time of appointment to his original posi- 
tion in your department, has never been a member of the State Retire- 
ment System. 

St. 1941, c. 634, § 1, the applicable portion of which you have quoted 
in your letter, specifically provides that the laws governing the employ- 
ment, discharge and retirement of employees of the Commonwealth, in- 
cluding those of civil service, shall not apply to any person engaged in 
carrying out any provision of said chapter which relates to the distribu- 
tion of surplus agricultural commodities donated by the Federal authori- 
ties. This chapter appears to be still in force and by virtue of the fore- 
going provisions the said employee may be retained in service despite his 
age. His right to be employed, in view of the specific provisions of said 
chapter 634, to which I have referred, has not been affected by St. 1942, 
c. 16, or St. 1945, c. 55, regarding the employment of retired employees. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Retirement — Teacher — St. 1946, cc. 418, 425. 

Sept. 3, 1946. 
Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — In a recent letter with relation to the retirement of a 
certain teacher you have written me as follows: 

"Under the provisions of St. 1946, c. 425,jthe retirement of Miss M. 
Marion Watts by the School Committee of Northbridge is permitted, her 
retirement to be subject to the approval of the Teachers' Retirement 
Board. If retirement is approved, she is to receive from the date of 
approval by the Teachers' Retirement Board the retirement allowance 
established under G. L. c. 32, § 10, pars. 9 and 10, as in effect immedi- 
ately prior to January 1, 1946. 

"In accordance with the law as stated above, the pension would be the 
minimum pension which added to the annuity to which she will be en- 
titled under Option (a) will provide a total retirement allowance of $400 
a year. 

St. 1946, c. 418, increases the minimum pension for certain public 
school teachers who retired on or before December 31, 1945. The Retire- 
ment Board is of the opinion that Miss Watts is not entitled to the in- 
crease provided by Chapter 418 as her retirement will not take effect 
until approved by the Teachers' Retirement Board in 1946. The Board, 
however, feels that it would like your opinion regarding this matter in 
order that no injustice may be done Miss Watts when her retirement 
allowance is established." 



P.D. 12. 27 

You have also informed me that this teacher was a member of the 
Teachers' Retirement Association. 

I am of the opinion that the teacher is entitled to receive the retirement 
allowance established under G. L. (Ter. Ed.) c. 32, § 10, as in effect imme- 
diately prior to January 1, 1946, and not the larger retirement allowance 
payable under St. 1946, c. 418. 

Said chapter 418 is a general law, which contained an emergency pre- 
amble, approved on June 5, 1946. It reads: 

"From June first, nineteen hundred and forty-six, members of the 
Teachers' Retirement Association retired under section ten of chapter 
thirty-two of the General Laws, as in effect on December thirty-first, 
nineteen hundred and forty-five, or corresponding provisions of earlier 
law, shall receive a retirement allowance at the annual rate which they 
would have received if, at the time of their retirement, the minimum 
pension under paragraphs (4), (5) and (10) of said section, or correspond- 
ing provisions of earlier law, had been the annual amount of pension 
which, when added to the annual amount which would have been paid 
from the annuity fund if the member had chosen an annuity under para- 
graph (3) (a) of said section, or corresponding provisions of earlier law, 
would have provided a retirement allowance of six hundred dollars." 

St. 1946, c. 425, is a special law, approved on the same day as said 
chapter 418, which specifically authorizes the retirement of the teacher 
in question under certain conditions "in accordance with the provisions 
of paragraphs (8) and (13) of section ten of chapter thirty-two of the 
General Laws, as in effect immediately prior to January first, nineteen 
hundred and forty-six." 

Said chapter 425, section 2, further prescribes that the particular teacher 
to whom the act applies, and whose retirement is authorized as aforesaid 
by its first section, shall, upon such retirement, receive "the retirement 
allowance which she would have received under paragraphs (9) and (10) 
of said section 10 of said chapter thirty-two, as in effect immediately 
prior to January first, nineteen hundred and forty-six." 

Since the teacher to whom said chapter 425 is applicable is to be retired 
by its terms "in accordance with the provisions of . . . section ten of 
chapter thirty-two of the General Laws, as in effect immediately prior to 
January first, nineteen hundred and forty-six," she would appear to be 
in the same class as the teachers referred to in said chapter 418, and the 
special provisions for the amount of her allowance in said chapter 425 
would appear to be inconsistent with those set up for teachers of that 
class in said chapter 425. 

Statutes should be construed when possible so as not to conflict and to 
form an harmonious whole. These two statutes at first sight appear to 
be irreconcilable. 

It has been suggested that the title of said chapter 418 indicates that 
it is limited in application to teachers who retired on or before December 
31, 1945, and so could not have application to the teacher to be retired 
under said St. 1946, c. 425. This title reads: 

"An Act to increase to six hundred dollars the minimum pension pro- 
vided for certain public school teachers who retired on or before December 
thirty-first, nineteen hundred and forty-five." 



28 P.D. 12. 

The title of an act may be used as a guide in determining the intention 
of lawmakers and may be considered in construing an act. Wheelwright 
V. Trefry, 235 Mass. 584. Brown v. Robinson, 275 Mass. 55. 

But the use of words in the title of a statute cannot be held to control, 
enlarge or limit the words or the scope of the statute unless such words 
are of doubtful or ambiguous meaning. Lorain Steel Co. v. Norfolk & 
B. St. By., 187 Mass. 500, 505. Charles I. Hosmer, Inc., v. Commonwealth, 
302 Mass. 495, 501. Opinion of the Justices, 309 Mass. 631, 640. 

The words employed in the text of said chapter 418 are not of doubtful 
or ambiguous meaning. The provisions of said chapter 418 apply to all 
members of the Teachers' Retirement Association who are retired under 
said G. L. c. 32, § 10, as such statute was in effect before 1946, irrespective 
of the time of retirement. To this class of teachers the teacher in question 
belonged and she would appear to be entitled on retirement to the allow- 
ance established by said chapter 418 were it not for the explicit provisions 
of said chapter 425 setting forth another form of allowance which she was 
to receive. 

However, said chapter 425 is a special law and in so far as its terms are 
inconsistent with those of said chapter 418, which is a general law, it is 
to be regarded as setting forth an exception from the provisions of the 
general law, made by the Legislature with relation to the particular sub- 
ject matter of the special act, and as such it is effective with regard to 
such particular subject matter irrespective of the provisions of the general 
law. In so far as it may be regarded as inconsistent with provisions of 
the general law, the special act is operative notwithstanding. Townsend 
V. Little, 109 U. S. 504; Stoneberg v. Morgan, 246 Fed. 98; Jackson v. 
Cravens, 238 Fed. 117; and see Clancy v. Wallace, 288 Mass. 557, 564; 
McKenna v. White, 287 Mass. 495, 499. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Teachers' Pensions — Reimbursement of City of Boston under 
G. L. (Ter. Ed.) c. 32, § 20 (2) (c). 

Sept. 3, 1946. 

Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — In a recent letter you have asked my opinion as to whether 
the obligation of the Commonwealth under G. L. (Ter. Ed.) c. 32, § 20 
(2) (c), as amended, to reimburse the city of Boston for certain pensions 
paid to teachers upon retirement, is affected, as to increased pensions paid 
by the city under the provisions of St. 1908, c. 589, § 7, as most recently 
amended by St. 1945, c. 685, § 2, by section 3 of said chapter 685. 

I am of the opinion that such obligation to reimburse for pensions so 
paid is not affected by the provisions of said section 3. 

Said section 3 reads: 

"Until the expiration of one year from the effective date of this act, 
but not thereafter, the entire amount of the increases in pensions author- 
ized by the amendments to sections six and seven of chapter five hundred 
and eighty-nine of the acts of nineteen hundred and eight, as amended, 
made by sections one and two of this act shall be paid from the permanent 



P.D. 12. 29 

school pension fund established and existing under authority of section 
one of said chapter five hundred and eighty-nine, as amended, and no part 
of any such increase shall be paid from any other source whatsoever." 

The permanent school pension fund consists of money of the city of 
Boston earmarked for the payment of teachers' pensions by authority of 
earlier statutes. The duty of the Commonwealth to reimburse for pen- 
sions is laid down in said G. L. (Ter. Ed.) c. 32, § 20, (2) (c), as amended. 

Section 3 of said chapter 685, quoted above, requires that the increases 
in pensions authorized by said section 7 as amended "shall be paid from 
the permanent school pension fund . . . and no part of any such increase 
shall be paid from any other source whatsoever." 

The pensions are paid by the city of Boston and the requirement of the 
statute that they shall be paid from the fund and from no other source is 
a mandate applicable only to the city and does not purport to apply to 
the Commonwealth nor to the latter's duty to reimburse the city. Pay- 
ment and reimbursement are two distinct and different things, and said 
section 3 contains in its phraseology no provision apphcable to reimburse- 
ment. 

If, as has been suggested, it was meant by the Legislature to relieve the 
Commonwealth, at least for a time, from the obligation to reimburse the 
city for the whole or any part of the increased pensions authorized under 
said section 7 as amended, it doubtless would have so indicated its intent 
by the use of some phrase such as: "No reimbursement by the Common- 
wealth shall be made for the increased amoimt of such pensions for the 
first year." 

The Legislature, however, has not included any such provision in said 
section 3 or in any other part of the applicable statute, either explicitly or 
by reasonable implication. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Aeronautics Commission — Regulations — Certificates of Convenience — 
Necessity of Intrastate Scheduled Air Carriers. 

Sept. 4, 1946. 

Mr. Edward J. Lynch, Chairnia?!, Massachusetts Aeronautics Commission. 

Dear Sir: — You have requested my opinion upon the following ques- 
tions relating to intrastate transportation of persons or property by air- 
craft : 

"L Does St. 1946, c. 583, § 3, which amends G. L. c. 90, § 39, authorize 
or empower this Commission to establish by order or regulation provisions 
for the issuance of certificates of convenience or necessity covering the 
establishment or operation of intrastate scheduled air carriers? 

"2. If not, to what extent do the provisions of this act authorize regu- 
lations or control of such enterprises?" 

I answer your first question in the negative. 

The new section 39 of G. L. c. 90, as inserted b}^ St. 1946, c. 583, is as 
follows : 

"The commission shall have general supervision and control over aero- 
nautics and shall have general supervision of the construction, mainte- 



30 P.D. 12. 

nance and operation of all air navigation facilities and airports, including 
airport buildings owned by the commonwealth, except as otherwise pro- 
vided by law. Subject to the approval of the governor, the commission 
may represent the commonwealth in matters relative to aeronautics be- 
fore boards, commissions, departments or other agencies of the federal 
government and other states and international conferences, and before 
committees of the Congress of the United States. For the purpose of car- 
rying out the provisions of sections thirty-five to fifty-two, inclusive, and 
for the purpose of protecting and insuring the general public interests and 
safety, and the safety of persons receiving instructions concerning, or op- 
erating or using, aircraft and of persons and property being transported in 
aircraft, and for the purpose of developing and promoting aeronautics 
within the commonwealth, the commission may perform such acts, may 
issue and amend such orders and may with the approval of the governor 
and council, make and amend such reasonable general or special rules and 
regulations as it deems necessary; provided, however, that such rules and 
regulations shall not be inconsistent with, or contrary to, any act of the 
Congress of the United States relating to aeronautics or any regulations 
promulgated or standards established pursuant thereto. No rule or regu- 
lation of the commission shall apply to airports, restricted landing areas, 
or air navigation facilities owned or operated by the United States within 
the commonwealth." 

There is in that section no specific reference to any power of your com- 
mission to establish by orders or regulations provisions for the issuance of 
certificates of convenience and necessity for the establishment or operation 
of intrastate airlines, nor can there be found any sufficiently specific or 
clear warrant by inference for such regulations when that section is read 
together with sections 35 to 52, inclusive, of chapter 90, as amended. 

The intent of the Legislature would need to be more clearly established 
to justify the institution of such economic control of intrastate airlines 
than can be pieced together from the broad and general language of the 
third sentence of section 39 which grants your commission rule-making 
power for the purpose of "protecting and insuring the general public 
interests and safety, and the safety of persons receiving instructions con- 
cerning, or operating or using, aircraft and of persons and property being 
transported in aircraft, and for the purpose of developing and promoting 
aeronautics within the commonwealth. ..." The emphasis is upon 
safety: safety for the general public, safety for persons operating aircraft 
and safety for persons and property being transported in aircraft. 

That the Legislature is familiar with the apt terminology which clearly 
expresses its intent to create powers for granting certificates of convenience 
and necessity in other forms of transportation is distinctly shown in G. L. 
(Ter. Ed.) c. 159B, § 3, as most recently amended by St. 1945, c. 400, 
§§ 1, 2. That section empowers the Department of Public Utilities to 
issue certificates of convenience and necessity to persons engaged in the 
business of a common carrier by motor vehicle only upon application to 
the department and after a public hearing to determine whether the ap- 
plicant is "fit, wiUing and able" to perform, and that the service applied 
for is necessary and convenient. It also contains further detailed pro- 
visions as to routes, limitations, conditions, etc. 

Likewise, the Legislature used definite words expressing its intent that 
the Department of Public Utilities has power to issue certificates of con- 
venience and necessity for common carriers of passengers by motor vehicle, 



P.D. 12. 31 

G. L. (Ter. Ed.) c. 159A, § 7, for railroads, G. L. (Ter. Ed.) c. 160, § 17, 
and for street railways, G. L. (Ter. Ed.) c. 161, § 7. 

Furthermore, the Legislature had before it in 1945 House Bill 176, 
entitled, "An Act regulating common carriers by aircraft," accompanying 
the seventeenth recommendation of the Department of Public Utilities, 
House Bill 159, which bill the Legislature saw fit to reject. That bill was 
elaborate in detail as to the authority proposed to be given to your com- 
mission to issue certificates of convenience and necessity to such operators 
who applied and, upon public hearing, appeared "fit, willing and able" 
to perform carriage by aircraft of persons or property for hire in intrastate 
commerce in this State. It was, in effect, the model bill drafted and pro- 
posed by the National Association of Railroad and Utility Commissioners 
in 1944 and which was adopted in 1945 by Alabama, ^ Arkansas, ^ and 
Vermont,^ with only slight variations. That bill also bears a notable 
resemblance to the economic regulations of the Federal Civil Aeronautics 
Act of 1938." 

In view of the foregoing facts, it would therefore appear that the Legis- 
lature could not have intended that section 39 would create in your com- 
mission the power of such economic control of intrastate airlines as to issue 
or withhold certificates of convenience and necessity for their mainte- 
nance, operation or establishment. 

Your second question is so broad in scope that it is impossible to give a 
specific answer to it. In general terms, however, section 39 can be said 
to give your commission general power to supervise by regulation, rules 
and orders the operation of aircraft and air navigation facilities, other 
than those owned or operated by the Federal Government, in this Com- 
monwealth with regard to the general public interests and safety (which 
includes all persons and property interests aground or airborne) and the 
safety of those persons either operating, being transported, or having their 
property transported in aircraft, subject always to the restriction "that 
such rules and regulations shall not be inconsistent with, or contrary to, 
any act of the congress of the United States relating to aeronautics or 
any regulations promulgated or standards established pursuant thereto." 

The only existing provision in our )aws for economic regulation of in- 
trastate airlines in this Commonwealth is found in G. L. (Ter. Ed.) 
c. 159, § 14A (inserted by St. 1941, c. 713), which requires every common 
carrier by aircraft maintaining an established service over regular sched- 
uled routes for general public service to publish and file with the Depart- 
ment of Public Utilities tariffs of its rates and charges for transportation, 
and services in connection therewith, between points within the Com- 
monwealth. 

You have called my attention to the jurisdiction of the Federal Civil 
Aeronautics Board over interstate airlines with the statement that "it 
does not presently e.xercise direct jurisdiction over intrastate airlines." 
Lest there be any misunderstanding in regard to the authority of the Fed- 
eral Board, it should be pointed out that the Civil Aeronautics Act of 
1938 (52 St. 977, 49 U. S. C. A., §§ 401-681), from which the board takes 
its being, was passed under the authority of the commerce clause of the 
United States Constitution, Art. I, Sect. 8, cl. 3. The act has two defi- 

' Governor's Act No. 269, Alabama Acts, 1945, H.B. 302. 

2 Arkansas Laws, 1945, Act No. 252. 

3 Vermont Laws, 1945, H. B. 189. 

< Act of June 28, 1938, 52 St. 977, 49 U. S. C. A. § 401. 



32 P.D. 12. 

nite aspects, safety regulation and economic regulation. The jurisdiction 
of the board covering safety regulation applies to "air commerce," which 
is defined in the act to mean "interstate, overseas or foreign air com- 
merce, or the transportation of mail by aircraft, or any operation or 
navigation by aircraft within the limits of any civil airway, or any opera- 
tion or navigation of aircraft which directly affects, or which may en- 
danger safety in interstate, overseas or foreign air commerce." On the 
other hand, the jurisdiction of the board covering economic regulations 
applies to "air transportation," which is defined in the act to mean "in- 
terstate, overseas or foreign air transportation, or the transportation of 
mail by aircraft." 

It can be seen that the field of safety regulation, which includes such 
items as flight rules and licensing of all airmen and aircraft, is much 
broader than the field of economic regulation. As a matter of fact, the 
Federal courts in two recent cases have sustained the claim of the Civil 
Aeronautics Board to the application of the safety provisions of the act 
to purely intrastate operations, Rosenhan v. United States, 131 F. (2d) 
932, (C. C. A. 10th 1942) cert, denied 318 U. S. 790, United States v. 
Drumm, 55 F. Supp. (D. Nov., 1944) 151. 

The first case involved the intrastate flight of an aircraft within a 
Federally-designated airway without a Federal certificate of airworthi- 
ness. The second case involved an operator without a Federal license, 
who made two unscheduled flights wholly outside of any civil airway, 
one of which flights was entirely intrastate. The court in the Rosenhan 
case determined that Congress did not limit the question of safety to a 
manifestation of actual danger, but rather that it could and did exert 
its power to eliminate all potential elements of danger to interstate and 
foreign operations. 

The economic regulation of "air transportation" under the Federal 
act. Title IV, is not as broad in jurisdictional scope. These sections of 
the act require certificates of convenience and necessity for those appli- 
cants found fit, willing and able to perform, authorize establishment or 
modification of routes, rates and charges, require annual accounts, rec- 
ords and reports of each carrier, provide charges for carriage of mail, 
prohibit interrelated ownership and control of carriers, and other similar 
provisions bearing on economic supervision. They apply now only to 
interstate, foreign and mail transportation by aircraft. 

Despite this limitation, however, the Federal Civil Aeronautics Board 
has proceeded to enforce the economic provisions of the act in the case 
of a carrier operating wholly within the State of New York between New 
York City and Niagara Falls, on the theory that the carrier was being 
used by passengers as a leg of an interstate journey. Civil Aeronautics 
Board v. Canadian Colonial Airways, 41 F. Supp. 1006 (U. S. D. C, 
S. D. N. Y., 1940). The reported case goes no further than sustaining 
the board's motion for a court order to allow the board to examine the 
books of the airline and to interrogate its passengers in support of its 
burden of proving that interstate commerce was engaged in. 

In summary, it is my opinion that G. L. (Ter. Ed.) c. 90, § 39, as most 
recently amended by St. 1946, c. 583, § 3, does not empower your com- 
mission to issue certificates of convenience and necessity to scheduled 
intrastate airlines, but that the act does empower your commission to 
supervise the operation of aircraft and air navigation facilities, other than 
those owned or operated by the Federal Government, in this Common- 



P.D. 12. 33 

wealth with regard to the general public interests and safety and the 
safety of persons and property in aircraft, provided that such supervi- 
sion shall not be inconsistent nor contrary to the Federal act or regula- 
tions thereunder. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Salary of Justice of Newbury port District Court. 

Sept. 12, 1946. 

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

Dear Sir." — You have asked my opinion as to the amount of salary 
payable to the justice of the Newburyport District Court under the pro- 
visions of St. 1946, c. 348, and St. 1946, c. 498. 

Said chapter 348 was approved May 21, 1946, and as it bore an emer- 
gency preamble it became effective at once, but the increases in salary 
provided for by section 4 of said chapter 348 were not "to be effective" 
until July 1, 1946. 

You state that on July 1, 1946, the salary of the said justice was $2300. 
Under the provisions of said chapter 348 that was increased, as of such 
date, by twenty per cent of the amount not to exceed $420 plus $150, 
making a total salary payable from July 1, 1946, under the terms of said 
chapter 348, of $2870, if the salary of the justice was not increased by 
the General Court. 

The provisions of said section 4 of chapter 348 are not limited to grant- 
ing an increase of twenty per cent on salaries as they stood on May 21, 
1946, nor as they stood on July 1, 1946. The terms of said section 4 pro- 
vide for the twenty per cent increase and the $150 additional as an in- 
crease in "the salary of a justice ... of a district court." The sentence 
contained in said section 4 which provides, "Such salary as so increased 
shall be deemed to be the regular compensation of any such officer or 
employee now or hereafter in the service of the county," has no effect to 
cut off the twenty per cent increase plus the $150 additional from any 
salary mentioned in said section 4 which may at a later date be increased 
by the Legislature. The terms of said section 4 cannot prevent the Legis- 
lature from exercising its authority to increase a salary, and it would 
appear to be the plain intent of the section that "the salary" of a justice, 
whatever it might be at any time, should be increased by twenty per 
cent up to $420 plus $150, after July 1, 1946. 

By St. 1946, c. 498, the salary of the said justice was increased from 
said $2300 to $3000. After July 10, 1946, the provisions of the earlier 
statute, said chapter 348, would apply to this new salary and it would 
thereby be increased by twenty per cent up to $420 plus $150, or a total 
of $3570. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



34 P.D. 12. 

Tuition of Resident and Non-resident 'pupils — Veterans — Servicemen^ s 
Readjustment Act of 1944- 

Sept. 12, 1946. 

Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — Replying to your letter of September 4, 1946, let me say 
that where the Legislature has permitted the establishment of tuition for 
resident and "non-resident" pupils, respectively, and tuition for each 
group has been established by those in authority over an institution on 
such basis in different amounts, I do not perceive how a certificate can 
properly be given which states: 

"That such charge (i.e., a non-resident charge for a veteran who may 
be a resident of the Commonwealth) is not in conflict with existing laws or 
other legal requirements of the Commonwealth." 

You state that such a certificate is required by the Federal authorities 
as a prerequisite to paying the non-resident charge for veterans as pupils, 
irrespective of whether the veterans are residents or non-residents of the 
Commonwealth. 

It would seem that the Federal Administrator under the Servicemen's 
Readjustment Act of 1944 (78th Congress, Public Law 346) might, if 
the "resident" charge be inadequate, pay for resident veterans a sum 
equal to the "non-resident" charge under the provisions of section 5 of 
said Pubhc Law 346, Title II, chap. IV, Part VIII, which reads in part: 

"... that if any such instruction has no established tuition fee, or if 
its established tuition fee shall be found by the Administrator to be in- 
adequate compensation to such institution for furnishing such education 
or training, he is authorized to provide for the payment, with respect 
to any such person, of such fair and reasonable compensation as will not 
exceed $500 for an ordinary school year." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Offices of Registei's of Probate — Saturday Closing — Departments of the 

State Government. 

Sept. 27, 1946. 

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

Finance. 

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

"The question has arisen as to the application to the offices of registers 
of probate of St. 1946, c. 408, an act relative to the closing of offices of 
state departments on Saturdays. 

"Will you kindly advise us whether or not, in your opinion, the act 
applies to registers of probate as 'offices under the jurisdiction of any 
department of the state government.'" 

I must advise you that G. L. (Ter. Ed.) c. 30, § 24, as amended by 
St. 1946, c. 408, does not apply to the offices of registers of probate. 

Said section 24 as so amended is by its terms made applicable only to 
"all offices under the jurisdiction of any department of the state govern- 
ment." 



P.D. 12. 35 

The words "an?/ department of the state government^' as employed by 
the Legislature in said chapter 408, which amends G. L. (Ter. 1*M.) c. 30, 
by striking out section 24 therefrom and inserting a new section 24, were 
plainl}^ intended to refer not to one of the three principal divisions of 
governmental power, the executive, legislative or judicial, but to one of 
the subdivisions into which the executive and administrative functions 
of the state government are divided (Const. Amend. LXVI). See Y'ont 
V. Secretary of the Commonwealth, 275 Mass. 365, 367. 

That such was the intention of the Legislature is made plain by the 
employment in said section 24, as amended, of the phraseology "the de- 
partment head" and "any department head." There is no head of the 
judicial department of the Commonwealth, using the word "department" 
in its broadest sense. 

Moreover, the intent with which the words under consideration were 
used by the Legislature is manifest from the definition of "departments" 
in section 1 of said chapter 30, in which the new section 24 is inserted. 
Said section 1 reads as follows: 

"The word 'departments,' as used in this chapter, except in section 
two, shall, unless the context otherwise requires, mean all the depart- 
ments of the commonwealth, except the departments of banking and in- 
surance and of civil service and registration but including in lieu thereof 
the divisions of banks and loan agencies, of insurance, of savings bank 
life insurance and of civil service and the several boards serving in the 
division of registration of the department of civil service and registration, 
and also including the metropolitan district commission and the com- 
mission on administration and finance." 

There is nothing in the context of said section 24 'as inserted by said 
chapter 408 which requires that a difi"erent meaning shall be given to the 
word "department" than that set forth in said section 1; rather, it would 
appear from such context itself that the word was intended to have the 
meaning set forth in said section L 

Specific provision has been made by the Legislature under the authority 
of the Constitution, Pt. 2d, c. Ill, art. IV, for the times when the pro- 
bate courts shall and shall not be open, and no court may be held unless 
a register or an assistant or temporary register is present (G. L. (Ter. 
Ed.) c. 215, §§ 58-62). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



State Examiners of Electricians — Applications — Credits to Veterans — 

St. 1946, c. 408. 

Sept. 27, 1946. 
State Examiners of Electricians. 

Gentlemen: In a recent letter you have directed my attention to St. 
1946, c. 480, § 2, which inserts a new section 2A in G. L. (Ter. Ed.) c. 141. 
In its applicable part this new section provides: 

"... They (the Board of Examiners of Electricians) shall grant a 
credit of five per cent to the examination standing of each applicant who 
has served in the army or navy of the United States in time of war and 
has been honorably discharged or released from active duty; provided, 



36 P.D. 12. 

that such appHcants make appHcation withui one year of their discharge 
or release as aforesaid or within one year of the effective date of this 
section, whichever is the latest. Said examinations shall be sufficiently 
frequent to give ample opportunity for all applicants to be thoroughly 
and carefully examined, may be written or in practical work, and may be 
supervised by one or more of the examiners, but no license shall be granted 
without the sanction of the examiners." 

In relation to said section 2A you have asked my opinion upon four 
questions. 

1. Your first question reads: 

"Does the word 'application' as used in the phrase 'provided, that 
such applicants make application within one year of their discharge or 
release . . .' refer to the written application required by chapter 141, 
section 3, paragraph 3, to be made by all persons desiring an examination, 
or does it require that those eligible for the 5% credit must make applica- 
tion for such credit?" 

G. L. (Ter. Ed.) c. 141, § 3, par. 3, to which you refer, provides in its 
applicable part: 

"Persons desiring an examination shall make written application there- 
for, accompanied by the proper fee . . ." 

I am of the opinion that the word "application", as used in the phrase 
quoted in your question, refers to the application mentioned in said 
chapter 141, section 3, paragraph 3, which is an application to take an 
examination. It would appear from the phraseology of said section 2A 
that it was the intent of the measure that veterans taking the examination 
should be entitled to a five per cent credit and that the receipt of such 
credit did not depend upon a request for it made by a veteran but was 
available to all alike who made application to take the examination 
within the stated time. 

2. Your second question reads: 

"Shall the five per cent credit be granted to the examination standing 
of applicants who apply during the one year specified in the act but who 
fail the examination and who apply for re-examination after the expiration 
of said year as provided in chapter 141, section 3, paragraph 3?" 

Chapter 141, section 3, paragraph 3, to which you refer in your ques- 
tion, provides in its applicable part: 

"... An applicant failing in his examination shall not have his fee 
returned to him, but shall be entitled to one free re-examination ..." 

Inasmuch as a re-examination follows as a result of an "application" 
and as the provisions of said section 2A grant the five per cent credit to 
those who make the application within the stated time, I am of the opinion 
that such credit is to be given to such applicants who make their applica- 
tions within the stated time upon re-examination as well as upon the 
original examination, irrespective of the date of the re-examination. 

3. Your third question reads: 

"Shall the five per cent credit be granted to the examination standing 
of a person who applies for examination for a 'Certificate A' in behalf of 



P.D. 12. 37 

a firm of which such person is a member or in behalf of a corporation of 
which such person is an officer as provided in chapter 141, section 3, 
paragraph 1?" 

Said section 2A makes no distinction between applicants applying for 
examination for Certificate A and those applying for examination for 
Certificate B, the only other certificate mentioned in said chapter 141, 
section 3, paragraph 3. I therefore answer your third question in the 
affirmative. 

4. Your fourth question reads: 

"Shall the five per cent credit be granted to the examination standing 
of a person who was examined prior to the effective date of the act, i.e., 
June?, 1946?" 

It is a general principle of law that in the absence of an expression of a 
legislative intent that a statute shall have a retroactive application, it is 
to be construed as having a prospective operation only. Martin L. Hall 
Co. V. Commonwealth, 215 Mass. 326; Wynn v. Board of Assessors, 281 
Mass. 245; Smith v. Freedman, 268 Mass. 38; City of Haverhill v. Marl- 
borough, 187 Mass. 150. 

I therefore answer this question to the effect that the five per cent 
credit is to be granted to veterans who are eligible therefor upon examina- 
tions held after and not before the effective date of said St. 1946, c. 408. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

United States Naval Reserve Officer on Inactive Duty — Payment of Renewal 
Fee for Engineer's License. 

Sept. 27, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam : — I am in receipt from you of the following request : 

"The Board of Registration of Professional Engineers and of Land 
Surveyors respectfully request your opinion on the following : 

"One of our registered engineers who is a reserve officer in the Navy 
and who was placed on inactive duty Sept. 1, 1945, has protested paying 
his renewal fee of $2.00. He claims that he is in the service until peace has 
been declared and that he is entitled to a suspension of his renewal fee 
until six months after peace has been declared. 

"Chapter 708 of the Acts of 1941, Section 23: He bases his claim on the 
following excerpt from this citation: ' . . . may be renewed within six 
months after the termination by such holder of such service.' 

"The Board would like to know if the placing on inactive duty may not 
mean the termination of such service." 

I am informed that a United States Naval Reserve Officer, although on 
inactive duty, is not, under the rules and practice of the Navy Depart- 
ment, regarded as having terminated his service but is treated as still in 
the naval service and liable to be activated until he has received a dis- 
charge and a certificate of service. 

This being so, the engineer to whom you refer is entitled to a renewal 
of his registration without the payment of a two-dollar fee. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



38 P.D. 12. 

Registration of Engineers — Civil Service Classification. 

Sept. 27, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam : — The Board of Registration of Professional Engineers 
and of Land Surveyors has through you in a recent letter asked my opinion 
as to whether they should register a certain State employee as an engineer 
under the provisions of St. 1941, c. 643, § 4. 

Said section 4 in its pertinent part provides: 

"... Engineers in state or municipal service qualified as civil, me- 
chanical, designing, electrical, or sanitary engineers under the civil service 
laws of the commonwealth upon the effective date of this act shall be 
eligible to register as a professional engineer. ..." 

A classification of an employee by the Civil Service Division in Class 27, 
which class under the rules and regulations of the division is composed of 
"civil, designing, electrical, mechanical and sanitary engineers," suffi- 
ciently indicates that such employee is "qualified" as an engineer, so that 
it is the duty of your board upon his application made within the time 
allowed by the said act to register him, as you have been previously advised. 

You inform me that the employee whose case is now under considera- 
tion has heretofore been classified by the Civil Service Division in Class 11 
but that the division has recently reclassified him, placing him in said 
Class 27, and has made such new classification retroactive to 1936. 

The effect of the order of said division making the reclassification retro- 
active is to indicate that the employee at all times since 1936 has been 
properly entitled to classification in said Class 27 as an engineer. The 
reclassification as made rectifies an error of the division and indicates that 
the employee was "qualified" as an engineer in the State's service in 1942, 
as well as at the present time. 

I am of the opinion, therefore, that this employee, upon an application 
made within the time limited by said chapter 643, is entitled to be regis- 
tered now. 

No responsibility such as you mention in your letter will attach to the 
board by reason of some lack of specific attainments or requirements of 
the board on the part of the employee, since the Legislature in said section 
4 has required the registration of "engineers in state . . . service qualified 
as . . . engineers . . . under the civil service laws ..." 

The Legislature has shown an intention to accept the qualification under 
civil service laws of engineers in the State service as the equivalent of any 
other attainments or requirements. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Land Ceded to Federal Government — School Children. 

Sept. 27, 1946. 

Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — Replying to your letter of September 13, 1946, let me say 
that the information which I have as to the dealings between the Massa- 



P.D. 12. 39 

chusetts State College and the Federal Government Indicates that at the 
present time the status of Fort Devens as land ceded to the United States 
has not been altered, except that a right of entry has been given to the 
college for certain non-housing purposes. I am also informed that it is 
not proposed by the Federal Government to give more than such a right 
of entry in the near future for housing purposes. 

The Attorney General does not pass upon questions of fact. If, however, 
my information in this respect is correct, children residing at Fort Devens 
will be living on territory ceded to the United States by the Common- 
wealth. This being so, the town of Aver, under the provisions of G. L. 
(Ter. Ed.) c. 71, § 68, can not be required to furnish school facilities free 
to such children and might make an established non-resident charge to 
them. 1931 Op. Atty. Gen. 35; VI Op. Atty. Gen. 593; Opinion of the 
Justices, 1 Met. 580; Newcomb v. Rockport, 183 Mass. 74. 

Very ti*uly yours, 

Clarence A. Barnes, Attorney General. 



Retirement Law — Appointment of Person over Seventy — State Official. 

Oct. 3, 1946. 
His Excellency the Governor and the Honorable Council. 

Sirs: — In a recent letter you have asked my opinion upon the following 
question : 

"May a person, seventy-one years of age, be legally appointed as di- 
rector of the di\ision of local taxes, in the Department of Corporations 
and Taxation?" 

I answer your question in the negative. The provisions of G. L. (Ter. 
Ed.) c. 32 (the Contributory Retirement Law), as amended by St. 1945, 
c. 658, do not differ materially with respect to retirement at seventy years 
from those of said chapter 32 as it existed before such amendment. 

By force of the provisions of G. L. (Ter. Ed.) c. 32, § 2 (14), (15), (16) 
and § 4 (6), prior to the said amendment of 1945, the retirement of an 
employee in the State service at age seventy was required. 1944 Op. 
Atty. Gen. 104. See Goodale v. County Commissioners, 277 Mass. 144, 
150-152. 

With regard to the appointment of persons over seventy under said 
chapter 32 as it stood before said amendment, it was said by one of my 
predecessors in office in 1941: 

"The provisions of G. L. (Ter. Ed.) c. 32 as amended, by requiring em- 
ployees reaching the age of seventy to withdraw from the public ser\ice 
of the Commonwealth ... by implication prohibit the appointment to 
positions in such service of those who have attained the age of seventy." 

The legislative intent, as expressed in the retirement law, with regard 
to retirement of employees at age seventy was not changed by the said 
amendment of 1945, chapter 658. 

Under the present provisions of said chapter 32, as amended by said 
St. 1945, c. 658, retirement at seventy for a State employee occupying a 
position such as that indicated in your letter is required. 



40 P.D. 12. 

Said chapter 658, section 3 (2) (/), provides in its applicable parts, with 
certain exceptions not here relevant : 

"No person who originally enters the service of any governmental unit 
as an employee after attaining age fifty-five . . . shall become a member 
(of the retirement system) . . . No such employee other than an elected 
official or a state official as defined in section one shall remain in the serv- 
ice of such governmental unit after attaining the maximum age for the 
group in which he would have been classified if he had become a mem- 
ber . . ." 

Subsection (g) provides that "officials and general employees" are to be 
classified in "Group A." The phrase "maximum age" as applied to the 
classification of "Group A" is defined in section 1 of said chapter 658 as 
"age seventy." 

The particular official under consideration is appointed by the Commis- 
sioner of Corporations and Taxation (G. L. (Ter. Ed.) c. 14, § 4) and is 
not a "state official" as those words are used in said subsection (/) and so 
is not included within the exceptions noted therein. "State official" is 
defined in said section 1 as "any person appointed by the governor . . ." 

It follows that any person seventy-one years of age appointed to the 
position mentioned in your letter would by force of the terms of said sub- 
section (/) be compelled to immediately cease to remain therein. Such an 
appointment would therefore be futile, and it may fairly be said by im- 
plication from those provisions of said chapter 658 which I have pointed 
out that such an appointment could not as a matter of law be effective. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — City Messenger of Chicopee — Officer — City Council. 

Oct. 3, 1946. 
The Commissioners of Civil Service and the Director. 

Gentlemen : — You have, through the Director, asked my opinion as to 
whether the appointment of the city messenger of Chicopee is subject to 
the civil service law and rules. 

I answer this question in the negative. 

The tenure of the city messenger of Chicopee was established by St. 1924, 
c. 355. By the terms of such chapter the person elected to the position — 

"shall hold office during good behavior and until removed by the board 
of aldermen in accordance with the provisions of chapter thirty-one of the 
General Laws and the rules and regulations made thereunder relative to 
removals from the classified public service." 

It was also provided: 

"This act shall take effect upon its acceptance by vote of the city council 
of said city ..." 

It is to be noted that the statute in several places refers to the position 
as an "office." It is also to be noted that the statute did not provide a 
new mode of appointment, merely referring to the election of a messenger, 
a method of choice previously provided for, and made civil service pro- 



P.D. 12. 41 

cedure applicable only to removal. It is further to be noted that the act 
calls for its acceptance by the "city council" of Chicopee. 

It had previously been provided by St. 1897, c. 239, § 16, as amended, 
that the messenger should be elected by the board of aldermen. 

By the terms of its charter the legislative function is carried out in the 
city of Chicopee by a board of aldermen, there being no city council. 

The duties of the city messenger of Chicopee were established by Re- 
vised Ordinances of the city, chapter 17, and include such duties in con- 
nection with the board of aldermen and with the care of public buildings 
and polling places that his position may fairly be held to be an "office" 
rather than an employment. That it is an "office" seems to have been 
the subject of legislative determination in the provisions of said St. 1924, 
c. 355, already alluded to. 

When a board of aldermen is the sole legislative body of a city, it falls 
within the scope of the words "city council" in statutes authorizing acts 
to be performed by a "council" (G. L. (Ter. Ed.) c. 4, § 7, First), and the 
board of aldermen of Chicopee was so treated by the Supreme Judicial 
Court in Kaehle v. Mayor of Chicopee, 311 Mass. 260. 

From these considerations it follows that the city messenger of Chicopee 
is an officer elected by a "city council," as the quoted words are used in 
G. L. (Ter. Ed.) c. 31, § 5, as amended, and since it is not otherwise pro- 
vided with regard to such officer in said chapter 31, he is by force of the 
terms of section 5 of said chapter 31 not subject to the civil service law in 
regard to appointment. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — Business Manager in Public Schools of Boston — St. 1946, 

c. 497, 

Oct. 3, 1946. 

The Commissioners of Civil Service and the Director. 

Gentlemen : — You have asked my opinion as to whether or not the busi- 
ness manager in the public schools of the city of Boston is classified under 
civil service. 

I answer this question to the effect that the business manager in office 
on the effective date of St. 1946, c. 497, who at the time of his appoint- 
ment was subject to the provisions of the civil service law, still retains his 
civil service classification, and his rights arising from such classification are 
specifically prescribed by the provisions of section 3 of said chapter 497. 
As to any business manager who may be chosen after said date, the Legis- 
lature in said chapter 497, section 2, amending earlier statutes, has indi- 
cated an intent that he shall not be subject to the civil service law. 

Under the provisions of St. 1906, c. 318, as amended by St. 1932, c, 231, 
the position of business manager was, like all similar positions where no 
contrary intent has been expressed by the Legislature, subject to the 
civil service law. 

St. 1946, c. 497, § 2, struck out the provisions of. the older statutes ap- 
plicable to the business manager, above referred to, and inserted new pro- 
visions relative to appointment to the position differing materially from 
those in the older statutes. 



42 P.D. 12. 

These new provisions provide : 

"Said committee shall choose, upon the nomination of the superintendent 
df schools, a business manager, who shall hold office until removed by the 
committee for cause." 

The phrase "until removed by the committee for cause" would not of 
itself be sufficient to indicate a legislative intent to take the position in 
question out of the sweep of the civil service law (1944 Op. Atty. Gen. 144, 
145"), but the use of the words "said conmiittee shall choose, upon the 
nomination of the superintendent of schools, '^ requires such a departure 
from the mode of appointment provided by the civil service law and rules 
Eis to indicate an intention upon the part of the Legislature that persons 
appointed to the position after the enactment of the said chapter 497 
should not be within the sweep of the civil service law (see VIII Op. 
Atty. Gen. 643; 1944 Op. Atty. Gen. 144, 145). 

That such was the intention of the Legislature is made plain by the fact 
that in section 4 of said chapter 231, as amended by said chapter 497, 
section 2, the civil service rights of the incumbent of the position at the 
effective date of the amendment are preserved to him by the employment 
of the phrase: 

"Nothing in this act shall, except as specifically provided, be deemed 
to affect in any manner the powers, duties, privileges, including civil 
service rights, and obligations of said business manager . . ," 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Secretary of the Commonwealth — Registering Label — Radio Advertising 

Program. 

Oct. 7, 1946. 

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

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

"This office has been asked to accept for registration the form of ad- 
vertising 'Your Morning Courier' for use on radio broadcasting a news 
program. It has not been the policy of this office to accept for registration 
under G. L. c. 110, § 8, any trade mark, label, stamp or form of advertise- 
ment except it be something capable of being impressed upon paper, cloth 
or like materials, that is to say, visual representation rather than oral. 

"It is requested that you furnish this office with an opinion as to our 
right to accept for registration as a form of advertisement any words 
which would be used either exclusively in radio programs or appearing 
in newspaper advertising of the program in conjunction with the use over 
the air." 

I am of the opinion that you should accept for registration the form of 
label set forth in your letter which is to be used as you have described. 

G. L. (Ter. Ed.) c. 110, § 8, which relates to the filing of labels in your 
office, in its applicable parts provides: 

"A person may adopt a label, . . . and file such label for record, . . . 
in the office of the state secretary . . . The applicant shall file with the 
label a certificate specifying the name of the person filing it, his residence 



P.D. 12. 43 

or place of business, the kind of merchandise to which such label has been 
or is intended to be appropriated, . . . If such label has not been and is 
not intended to be used in connection with merchandise, the particular 
purpose or use for which it has been or is intended shall be stated in the 
certificate. . . . The secretary shall file the certificate in his office and 
issue to the party depositing it a certificate of record under the seal of 
the commonwealth. ..." 

Such a label as 3^011 have referred to is capable of visible representation 
as well as oral, as would be the case with any label capable of being placed 
on file by the deposit of copies or facsimiles, as required by said section 8. 

The Secretary is not called upon by the terms of the statute to consider 
or to determine the effect of the filing, or whether any protection will as 
a matter of law flow to the depositor from such filing or from the receipt 
of the Secretary's certificate of record thereof. It is the duty of the Secre- 
tary to receive for filing labels and certificates of depositors in apparent 
conformity to the statute, and to deliver to such depositors his certificates 
of record. / Op. Atty. Gen. 601. 

An exhibition or fair as such is no more a concrete thing than a radio 
advertising program. A label to be used in connection with an exhibition 
or fair at the Mechanics Building reading "Boston Food Fair" was filed 
and certified as recorded by the Secretary, and such action was alluded 
to with apparent approval by the Supreme Judicial Court in Globe Ticket 
Co. v: Boston Retail Grocers' Assn., 290 Mass. 235, 236. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — Authority to Promote in Water town Fire Department. 

Oct. 7, 1946. 
The Commissioners of Civil Service and the Director. 

Gentlemen: — In a recent letter the Director has asked my opinion, 
in connection with the receipt of a requisition for the promotion of a fire- 
man to be a permanent captain of the Watertown fire department, as to 
whether the selectmen of Watertown or the "Chief of the Fire Depart- 
ment " has the authority to make promotions. 

I am of the opinion that the authority to make such a promotion in the 
said fire department is vested in the selectmen. 

Whatever may have been the situation with relation to the government 
of the Watertown fire department prior to 1912 and to the powers vested 
in a board of fire engineers and their appointees under the terms of St. 
1839, c. 138 (now substantially embodied in G. L. (Ter. Ed.) c. 48, §§ 45- 
54), and St. 1855, c. 47, the enactment of St. 1912, c. 526, a special act 
relating to Watertown and entitled "An Act relative to the fire depart- 
ment of the town of Watertown," vested the power of appointment to, 
and removal from, the fire department in the selectmen. This statute 
of 1912 is still in force and reads: 

"Section 1. The selectmen of the town of Watertown shall appoint 
aimually in the month of April a chief engineer of the fire department who 
shall exercise the powers and perform the duties now provided by law for 
the board of fire engineers, excepting the power of appointment to mem- 



44 P.D. 12. 

bership in and removal from the permanent and call fire force of said 
town, which said power of appointment and removal shall be vested in 
the board of selectmen. The provisions of law providing for the appoint- 
ment of fire engineers in towns shall not apply to the town of Watertown. 
"Section 2. This act shall take effect upon its passage." 

This statute, while granting to the ''chief engineer of the fire depart- 
ment" the authority formerly exercised by the board of fire engineers, 
excepted from such authority the power of appointment and removal as 
to both the permanent and call forces. 

This power of ''appointment," as the quoted word was employed by 
the Legislature in the said statute of 1912, includes within its scope the 
power of promotion. 

The Supreme Judicial Court in the recent case of MacCarthy v. Director 
of Civil Service, 1946 Mass. Adv. Sh. 155, 157, has considered the proper 
meanings to be given to the word "appointment" and has said: 

"In the ordinary use of language a promotion is one kind of appoint- 
ment and 'appointment' covers a promotion." 

This rule of construction would also apparently apply to the word 
"appointment" as ordinarily used by the Legislature in statutes. Ford 
V. Retirement Board, 315 Mass. 492, 494. 

The only exception to this rule of construction would seem from the 
opinion of the court in said MacCarthy v. Director, 1946 Mass. Adv. Sh. 
155, 157, to be the construction to be given to the word "appointment" 
when used in statutes relating to the civil service as such. When used in 
such statutes the court held that the word "appointment" does not 
include promotion. 

The said St. 1912, c. 526, is not a civil service statute. The civil service 
statute relative to the powers and duties of chiefs of fire departments, 
G. L. (Ter. Ed.) c. 48, §§ 42, 43, 44, and similar earlier enactments, have 
never, I am informed, been accepted by the town of Watertown. It is 
to be noted that Sp. St. 1915, c. 100, extending the provisions of civil 
service to the "chief of the fire department of Watertown," if applicable 
to the "chief engineer," the only chief which the department appears to 
have had under the controlhng terms of said St. 1912, c. 526, does not pur- 
port to change the provisions of said chapter 526, nor is it material to the 
subject under discussion, for by its terms it has no application to the 
"appointment" of any other fireman than the "chief." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Constitutional Law — Group Life Insurance for Municipal Employees. 

Oct. 10, 1946. 
Joint Committee on Municipal Finance. 

Gentlemen: — I am in receipt from you of the following request for 
my opinion: 

"The Joint Committee on Municipal Finance, sitting as a Recess 
Committee under authority of Res. 1946, c. 40, are considering, in accord- 
ance with the said Resolve, House Bill 464. At a meeting held on Octo- 



P.D. 12. 45 

ber 1, 1946 it was voted to request your opinion as to the constitutionality 
of this bill if enacted into law." 

The Attorney General does not pass upon questions of fact. 

If there exists a sufficient factual background from which the Legisla- 
ture might reasonably determine that the security afforded municipal 
employees through being covered by group life insurance was such as to 
provide for their improved efficiency as workers in the public service (see 
Goodale v. County Commissioners, 277 Mass. 144, 151; Opinion of the 
Justices, 1946 Mass. Adv. Sh. 799, 806), the courts would not, in my 
opinion, declare the measure unconstitutional if it were enacted into law 
by the General Court. 

Such a payment as is permitted by the measure to be made by munici- 
palities partakes of the nature either of increased compensation or of 
pensions like those given under the retirement systems. In either aspect, 
if a legislative determination similar to that which I have suggested can 
reasonably be made, the indicated disbursements would appear to be for 
a public purpose. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Commissioner of Conservation — Scope of Authority — Powers of Removal. 

Oct. 17, 1946. 
Hon. A. K. Sloper, Commissioner of Conservation. 

Dear Sir: — I am in receipt of your letter of October 7, 1946, request- 
ing my opinion in regard to the interpretation of certain portions of G. L. 
(Ter. Ed.) cc. 21 and 94. 

The Attorney General, following a long line of practice and procedure 
of his predecessors in office, does not ordinarily give interpretations or 
constructions of statutes as such by way of formal opinions but limits 
such opinions to those bearing upon questions of law relating directly to 
some duty which an officer of the Commonwealth is presently called upon 
to perform. 

I am of the opinion, however, that the requests in your present letter 
form an exception to the general rule in this respect, as they have a prac- 
tical bearing upon the discharge of your duties as Commissioner at this 
time. 

1. Your first question reads: 

"Under G. L. c. 21, § 1, the next to the last sentence states that 'the 
department shall be under the supervision and control of a commissioner 
of conservation.' Will you kindly interpret the extent of the words 'super- 
vision' and 'control.'" 

G. L, (Ter. Ed.) c. 21, § 1, as amended, reads: 

"There shall be a department of conservation, consisting of a division 
of forestry, a division of fisheries and game, a division of wild life research 
and management, a division of marine fisheries and a division of parks 
and recreation, each under the charge of a director. The department 
shall be under the supervision and control of a commissioner of conserva- 
tion. The directors shall act as an advisory council to the commissioner." 



46 P.D. 12. 

The words "supervision" and "control" have been carried forward 
into said chapter 21, section 1, as most recently amended, from earlier 
statutes and indicate that the Commissioner, as head of the department, 
shall in a general way supervise and control its workings. They do not 
give to him the right to exercise special powers which may be specifically 
delegated to other officers in his department by the provisions of the 
statutes. 

2. Your second question reads : 

"Under chapter 21, section 3, the second sentence 'he shall supervise 
the work of all divisions and shall have charge of the administration and 
enforcement of all laws which it is the duty of the department to admin- 
ister and enforce, and shall direct all inspections and investigations.' 
Will you please give me your interpretation of the words 'administra- 
tion' and 'enforcement' in this sentence?" 

G. L. (Ter. Ed.) c. 21, § 3, as amended, reads: 

"The commissioner shall be the executive and administrative head of 
the department. He shall supervise the work of all the divisions, and 
shall have charge of the administration and enforcement of all laws which 
it is the duty of the department to administer and enforce, and shall 
direct all inspections and investigations. He may, unless otherwise pro- 
vided, appoint such clerks and other employees as the work of the de- 
partment may require, and may assign them to divisions, transfer and 
remove them. He may also, with the approval of the governor and coun- 
cil, designate employees of the department qualified by training and 
experience to act in the capacity of director of any of said divisions." 

The words "administration" and "enforcement," as used in said sec- 
tion 3 in the phrase "he shall have charge of the administration and 
enforcement of all laws ..." give to the Commissioner as the head of 
the department in a general way the administrative authority naturally 
pertaining to the chief executive officer of a department having "super- 
vision" and "control" over it, as those words are used in said section 1. 

3. Your third question reads: 

"Under chapter 21, section 8B, a new section inserted under St. 1941, 
c. 598, § 6, 'the director may, subject to the approval of the commis- 
sioner, appoint and remove such experts, coastal wardens, fish inspectors, 
clerical and other assistants as the work of the division may require, and 
their compensation shall be paid by the commonwealth.' Kindly give 
me your interpretation of the word 'may' and if that privilege is not 
used, what is the authority of the commissioner in making an appoint- 
ment without the director's signature?" 

Said section SB, the pertinent part of which you have set forth in your 
question, authorizes the Director of Marine Fisheries to appoint and 
remove the officials mentioned therein. By the use of the word "may" 
the Legislature has vested in the Director discretion as to when he shall 
make appointments or removals and as to the number and kind of officials 
whom the interests of the Commonwealth require to be appointed within 
the limits of appropriations provided. This authority is vested in the 
Director alone. The Commissioner's power of appointment and removal, 
given him by said section 3, is limited to situations as to which it is not 



P.D. 12. 47 

"otherwise provided." It is ''otherwise provided" with relation to 
officials and employees in the Division of Marine Fisheries. 

The Director, however, can make such appointments and removals 
under said section 8B only with the "approval of the Commissioner," so 
as to such appointments and removals the Commissioner possesses what 
is equivalent to the power of veto, but the Commissioner, even in the 
absence of action by the Director, has no power to appoint or remove 
the officials and employees referred to in said section 8B. 

4. Your fourth question reads: 

"Under chapter 21, section 8C, the first sentence 'the director shall 
have charge of the enforcement of chapter 130, and all other provisions 
of law relative to marine fish and fisheries, including shellfish, and the 
provisions of sections 74 to 88B, inclusive of chapter 94.' How does this 
fit into chapter 21, section 3, titled 'Duties of commissioner'?" 

The quoted sentence in your question, which you state to be the first 
sentence of said chapter 21, section 8C, is taken from the amendment of 
G. L. (Ter. Ed.) c. 21, made by St. 1939, c. 49. Section 8C was further 
amended in 1941 by chapter 598 of that year, section 6, so that it now 
reads as follows: 

"There shall be in the division a bureau of law enforcement, under the 
charge of a chief coastal warden. All coastal wardens, deputy coastal 
wardens and fish inspectors appointed under section eight B shall be 
assigned to duty in said bureau. The director shall, subject to the pro- 
visions of section three, enforce chapter one hundred and thirty and all 
other provisions of law relative to marine fish and fisheries and in the 
enforcement of such laws may act through said bureau. The director, 
subject to the provisions of section three, shall have general supervision 
of all such inspectors and wardens." 

The power vested in the director by said section 8C, as thus amended, 
is subject to the general supervisory and administrative authority of the 
Commissioner, but the immediate charge of the enforcement of the statutes 
specifically set forth in section 8C devolves on the Director. The Com- 
missioner has authority under said section 3 to direct "inspections and 
investigations" but, with this exception, the power of initiating action in 
respect to the enforcement of the laws relating to marine fish and fisheries 
mentioned in said section 8C is in the Director. 

The general administrative, supervisory and enforcing powers given to 
the Commissioner in said sections 1 and 3 which stem from former statutes 
and were set forth in their present form by amendment of said chapter 21 
in St. 1939, c. 491, were, to the extent already indicated, curtailed by the 
sweep of new powers vested in the Director of Marine Fisheries by the 
amendment of said chapter 21 by St. 1941, c. 598, § 6. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



48 P.D. 12. 

Department of Public Works — Rate of Wages for Employees on Federal- 
Aided Projects. 

Nov. 12, 1946. 

Hon. Joseph F. Cairnes, Commissioner of Public Works. 

Dear Sir : — In a recent letter you have asked my opinion as to 
whether regular employees in your department in the labor service of 
the Commonwealth working on a particular type of work included within 
Federal-aided projects, the appropriation for which appears in the gen- 
eral appropriation bill (St. 1946, c. 309), are to be paid the regular wage 
rate established for their respective positions by the Division of Person- 
nel and Standardization, or whether they should be paid not less than 
the rates of wages determined by the Commissioner of Labor and Indus- 
tries for such positions on such a project under G. L. (Ter. Ed.) c. 149, 
§§ 26 and 27. 

The particular rates of wages to be paid to mechanics, teamsters, 
chauffeurs and laborers under said section 26 as established by said Com- 
missioner under section 27 are to apply to the regular employees of the 
Commonwealth only, according to the terms of said section 26, when: 

"such employees are employed in the construction, addition to or altera- 
tion of said works (i.e., public works) for which special appropriations are 
provided." 

It becomes necessary, therefore, in order to give an answer to your 
question, to determine whether the appropriation for Federal-aided proj- 
ects on which the work in question is performed is a special appropria- 
tion within the meaning of "special appropriations" as used in the above- 
quoted portion of section 26. This appropriation, you inform me, is item 
2900-10 and appears in the general appropriation bill, said St. 1946, 
c. 309. It reads: 

"2900-10 For projects for the construction and reconstruction of 
highways and bridges, including the elimination of 
grade crossings, which have been approved by the 
proper federal authorities to be included in federal aid 
programs, and for land damages in connection with 
such projects; to be in addition to amounts heretofore 
authorized for these purposes $10,000,000 00" 

This item appears with others under the headings: 

"The Following Appropriations are made from the Highway Fund: 

Service of the Department of Public Works 

Public Works Building" 

Special appropriations may be and are included in general appropria- 
tion bills (St. 1946, c. 309, § 3). Certain items in said chapter 309 are 
printed with the word "special" preceding them, but not the item under 
consideration. The Highwa}^ Fund, which is stated to be the source of 
the $10,000,000 appropriated under this item, is a part of the general 
fund or revenue of the Commonwealth in the treasury. Opinio7i of the 
Justices, 300 Mass. 630, 638-9. 

In whatever manner the words "special appropriation" may be con- 
strued in the context of other statutes, I am of the opinion that as em- 
ployed in the phrase "works for which special appropriations are pro- 



P.D. 12. 49 

vided" in said chapter 149, section 26, they were intended by the Legis- 
lature to mean an appropriation of pubUc moneys to a specific, narrow 
and particular purpose. 

Accordingly, I am of the opinion that as employed in said section 26 
the words "special appropriation" do not apply to the appropriation of 
$10,000,000 under said item 2900-10, which is for general construction 
and maintenance purposes in a wide field without reference to specific 
or particular purposes therein. 

Consequently, from the foregoing considerations I am of the opinion 
that the regular employees to whom you refer are not to be paid accord- 
ing to or with reference to the wage scale prepared by the Commissioner 
of Labor and Industries for the work under consideration but are to be 
paid the regular wage rate established for their respective positions by 
the Division of Personnel and Standardization. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Counties — Lease of Court Houses to Veterans Administration. 

Nov. 12, 1946. 

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

Sir : — Your Excellency in a recent letter has asked my opinion as to 
whether county commissioners are authorized to lease parts of county 
court houses to the Veterans Administration. 

No specific provision of any statute authorizes county commissioners 
to lease parts of court houses, nor does such authority arise by implication 
from any general statutory provision. 

No such authority is vested in the county commissioners of Middlesex 
with reference to the Waltham Court House, to which you refer in your 
letter, by St. 1938, c. 156, which specifically empowered such commis- 
sioners to take land by eminent domain or purchase to erect a building 
for the use of a district court and to furnish and equip the same, borrow- 
ing by bonds or notes the money necessary for such purpose. 

Authority to lease portions of a court house cannot reasonably be said 
to have been granted county commissioners by the provisions of G. L. 
(Ter. Ed.) c. 34, §14: 

"... They shall have authority to. represent their county, and to have 
the care of its property and the management of its business and affairs in 
cases where not otherwise expressly provided ; to sell and convey any real 
estate of the county by deed, . . ," 

The power vested in county commissioners to "provide for erecting and 
repairing court houses" (said section 14) is not a grant of power to lease 
portions of such buildings. 

It is a general principle of law that realty acquired for a particular public 
use cannot be diverted to another use without express legislative authority. 

If it be deemed necessary that leases such as are described in your 
letter should be made, specific authorization of county commissioners to 
make the same should be sought from the Legislature. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



50 P.D. 12. 

Registration in Medicine — "New Student" — St. 1946, c. 364. 

Nov. 12, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam : — I am in receipt from you of a request for an opinion 
upon the question of law contained in the following letter sent you by the 
Secretary of the Board of Registration in Medicine: 

"Will you kindly request an opinion from the office of the Attorney 
General in regard to the meaning of 'new students' in St. 1946, c. 364, § 4. 

"Does this mean that a person who attended another medical school 
prior to January 1, 1941 (St. 1938, c. 259), would be considered a 'new 
student' at the College of Physicians and Surgeons, Boston, or would he 
be eligible to write our examination if he matriculated at the College of 
Physicians and Surgeons after August 22, 1946, to finish his medical 
education?" 

St. 1946, c. 364, provides for the dissolution of the College of Physicians 
and Surgeons, a Massachusetts corporation. Sections 4 and 5 provide: 

"Section 4. Said corporation shall not register any new students. 

"Section 5. Section four of this act shall take effect when this act 
has the force of a law and the balance of this act shall take effect on June 
thirtieth, nineteen hundred and forty-nine." 

I am of the opinion that the words "new students," as used by the 
Legislature in said section 4, mean students who are new to the College of 
Physicians and Surgeons, so that it was the legislative intent that students 
who have previously matriculated at other institutions are not to be regis- 
tered at said college after June 22, 1946. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Industrial Accident Board — Compensation of a Guardian — Payment by 

Insurer. 



Industrial Accident Board. 



Nov. 14, 1946. 



Gentlemen: — I am in receipt of your letter of November 8, 1946, 
relative to your authority to make a payment to a guardian of a dependent 
under the applicable provisions of G. L. (Ter. Ed.) c. 152, § 39, which you 
quote in your communication. 

The duty to pay reasonable compensation to a guardian whose appoint- 
ment is required to comply with chapter 152 is placed upon the insurer, 
and the duty of approving a sum demanded as "reasonable compensation" 
is placed upon your board. Payment is not to be made to the guardian 
from the estate of the ward, and approval of the sum demanded for the 
services designated by section 39 would not appear to be a proper function 
of a probate court. (See Silva's Case, 305 Mass. 380.) The authority of 
the board in this respect is not abrogated by the provisions of sections 
69A or 69B of said chapter 152, to which you refer. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 51 

Department of Public Works — Approval of Parking Meters in 1946. 

Nov. 15, 1946. 

Hon. Joseph F. Cairnes, Commissioner of Public Works. 

Dear Sir: — You inform me that your commission has been asked by 
Mr. Murray of Milford to approve an amendment of traffic rules and 
orders, which amendment provides a system of parking to be used in con- 
nection with parking meters. 

With relation to this request you have asked me the following questions : 

"1. Whether or not this Department is correct in withholding approval 
of the erection of parking meters until such time as the Legislature has dealt 
with the matter. 

"2. If the Department's position is tenable, would it be proper to refuse 
to approve the proposed parking revision because of its definite connection 
with parking meters." 

I answer both your questions in the affirmative. 

In 1937 the Justices of the Supreme Judicial Court rendered an opinion 
to the Legislature which stated "The conclusion is that within the limits 
of public travel the General Court may regulate parking and may do so 
by a fee system intended to hasten the departure of parked vehicles and to 
help defray the cost of installation and of supervision" (297 Mass. 559- 
566). 

Since that opinion was rendered, the Legislature has not passed any 
measure authorizing cities or towns to regulate parking in the highway 
by a parking meter system, nor has it given specific authority to munici- 
palities to make contracts for the installation and maintenance of parking 
systems. 

Specific authority has been granted to towns by G. L. (Ter. Ed.) c. 40, 
§ 4, among other things, to make contracts, "for the installation and main- 
tenance ... of mechanical traffic signal light systems for the control and 
regulation of traffic on ways within its control, including poles, wires and 
other necessary apparatus upon, over or under such ways ..." I am of 
the opinion that the authority to make contracts for the purchase and 
installation of parking systems is not comprehended within the quoted 
phrase. 

It is by no means clear that approval of a parking system as such by the 
Department of Public Works would be within the general provisions of 
G. L. (Ter. Ed.) c. 85, § 2, in the absence of further legislation, nor is it 
plain that the regulatory authority over vehicles given to selectmen by 
G. L. (Ter. Ed.) c. 40, § 22, embraces a power to make rules creating a 
parking system with all the requirements, regulations and penalties which 
such a system that includes the use of meters necessitates. 

Although the matter is not without some doubt, I am of the opinion 
that in the absence of specific legislation or judicial pronouncement upon 
the subject, your department is correct in withholding approval of a pro- 
posed erection of parking meters and of so much of the amendment of 
traffic rules by the Selectmen of Milford, which you have exhibited to 
me, as deals with the erection of parking meters and the creation of a 
system for parking to be maintained and enforced in connection with such 
meters. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



52 P.D. 12. 

Department of Public Works — Transfer of Bridge Employees from 
Municipal Service to that of the Commonwealth. 

Nov. 26, 1946. 

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

Dear Sir : — You have asked my opinion as to the method which must 
be adopted by your board in relation to certain bridge employees trans- 
ferred to the Commonwealth's service by St. 1946, c. 521. 

The Attorney General does not attempt to lay down methods which 
must be followed by State boards in the discharge of their functions. 

For the guidance of your board, however, in dealing with the cases of 
bridge employees who were transferred from various political subdivisions 
into the service of the Commonwealth on July 1, 1946, by the provisions 
of St. 1946, c. 521, I call your attention to certain statutory provisions and 
to the law applicable to such employees arising from the construction of 
such provisions. 

Said chapter 521 provided that certain bridge employees should on 
July 1, 1946, be transferred to the employment of the Department of 
Public Works "without impairment of their civil service rights, if any, or 
I'liPir TPt7,TS')ns7tt TxoJits 

G. L. (Ter. Ed.) c. 32, as amended by St. 1945, c. 658, in section 3 (8) 
(a) provides: 

"Any member of any contributory retirement system established under 
the provisions of sections one to twenty-eight inclusive, or under corre- 
sponding provisions of earlier laws or of any special law, who, while still 
a member and before the date any retirement allowance becomes effective 
for him, becomes employed in a position in any other governmental unit 
in which such a system is operative, shall thereupon have his membership 
transferred to the second system, or if a teacher as defined in section one 
shall retain his membership in the teachers' retirement system, and shall 
be entitled to all creditable service resulting from his previous employ- 
ment; provided, that such position is subject to the provisions of the law 
pertaining to the second system or to the teachers' retirement system, as 
the case may be, and that he is under the maximum age for his group on 
the date of such new employment. Such transfer of membership, if re- 
quired, shall be effectuated by transferring within ninety days after the 
date of commencement of his new employment the amount of the ac- 
cumulated total deductions credited to his account in the annuity savings 
fund of the system from which he is being separated to the annuity savings 
fund of the second system." 

Section 4 (1) (d) of said chapter 32 reads: 

"Any person who became or becomes an employee by reason of the 
taking over by the commonwealth, or by the metropolitan district com- 
mission or by any district, of any institution, or of any public or quasi- 
public enterprise, controlled and operated by a political subdivision of the 
commonwealth or by a corporation, except such a person employed by 
the metropolitan district water supply commission who has not elected 
or does not elect to become a member of the state employees' retirement 
system, shall be credited with such service as would have been creditable 
service had it been rendered by him under the provisions of sections one to 
twenty-eight inclusive, or under corresponding provisions of earlier laws." 



P.D. 12. 53 

Section 3 (2) (a) (m) of said chapter 32 reads: 

"(a) Membership in a system . . . shall comprise the following 
persons : — 

" (in) Any person who hereafter resigns, transfers or is promoted from a 
position in the service under which he had inchoate rights to a non-con- 
tributory pension under this chapter or under corresponding provisions 
of earlier laws or of any other general or special law, to accept a position 
subject to the provisions of sections one to twenty-eight inclusive, if at 
the time of such resignation, transfer or promotion he is under the maxi- 
mum age for the group in which he would be classified." 

In my opinion it follows from the foregoing statutory provisions, read 
together so as to form an harmonious whole, that : 

(1) A bridge employee taken into the Commonwealth's service on 
July 1, 1946, by force of St. 1946, c. 521, must, if he has previously been a 
member of a contributory retirement system, be taken into the State 
Retirement System by virtue of said section 3 (8) (a) with full creditable 
service. When such employee comes to retire, his pension will be payable 
as to creditable service prior to July 1, 1946, the date of transfer, by the 
system to which he formerly belonged and the balance by the State Re- 
tirement System. Said chapter 521 does not specifically or by implication 
make any special provision as to the mode in which the pension is to be 
paid on retirement; consequently such payment is, as I have indicated, 
to be governed by the provisions relative to transfers from system to 
system, which I have outlined, set forth in section 3 (8) (c). 

(2) A bridge employee taken into the Commonwealth's service on 
July 1, 1946, by force of St. 1946, c. 521, who had inchoate rights to a 
non-contributory pension only and who is under the maximum age for 
membership in the State Retirement System, must become a member of 
such system by force of said section 3 (2) (a) {Hi) and is to be given full 
prior service credit under section 4 (1) (d), and if he has any other inchoate 
rights they are preserved. Upon his retirement, his retirement allowance 
is to be paid by the State Retirement System. If such an employee is 
over such maximum age for membership in the State Retirement System, 
he is unaffected by any provisions of the State contributory retirement 
law and your board has no jurisdiction with relation to him, but he still 
retains any inchoate rights which he may have had to any pension under 
other laws. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement System — Payments for Employee on Military Leave of Absence 

— Step-rate Increments. 

Nov. 26, 1946. 
State Board of Retirement. 

Gentlemen: — I am in receipt of your letter of November 7, 1946. 

When an employee of the Commonwealth who has been on leave of 
absence in the military or naval forces of the United States returns to the 
service of the Commonwealth he is entitled to a salary rate which includes 
accrued step-rate increments to which he would have been eligible except 



54 P.D. 12. 

for his absence in such forces, although the increased salary is not payable 
until his return. (St. 1941, c. 708, § 24.) 

Such increments would have been paid to him as they arose had his 
service for the Commonwealth not been interrupted, and he would have 
been paying a contribution to the retirement fund based on his salary as 
so increased if he had been here. 

Unless the Commonwealth at the time of the employee's reinstatement 
pays into the annuity savings fund of the retirement system the amount 
which the employee would have paid had he been here, based upon his 
salary plus such step-rate increases as he would have received if he had 
not been absent, the employee, as compared with the employee who 
stayed at home and paid contributions on the said basis, will be prejudiced 
by his service with the military or naval forces of the United States. It is 
apparent from the whole context of said chapter 708 that it was not the 
intent of the Legislature that its provisions should be so construed as to 
create such a prejudice. 

Consequently, under the terms of section 9 of said chapter 708 to which, 
as well as to those of section 24, you refer in your letter, there should be 
paid for such an employee into the annuity savings fund the amount 
which such employee would have paid upon his salary as increased by 
step-rate increments if his service with the Commonwealth had not been 
interrupted. 

It is true that such an employee does not receive such salary increases 
until his return. Nevertheless, his rights with relation to contributions 
to the retirement system under said section 9 are not based upon his 
actual receipt of salary, original or increased. His contributions are to 
be paid for him into the system in such an amount as he would have paid 
if his service to the Commonwealth had not been interrupted by his 
military or naval service, and, as I have indicated, these are to be com- 
puted on the basis of original salary plus apphcable step-rate increments. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Registration in Medicine — Use of Degrees of Practitioners in Medicine and 

Osteopathy. 

Dec. 6, 1946. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam : — I am in receipt through you of the following letter 
requesting my opinion by the Board of Registration in Medicine : 

"A graduate of an osteopathic school registered by this Board as such 
and holding oaly the D.O. degree at the time of registration, obtains an 
M.D. degree afterwards. 

"May he then drop the letters 'D.O.' following his name and use only 
the letters 'M.D.' or must he use both 'D.O.' and 'M.D.' because he was 
registered by this Board as a D.O.?" 

It would appear from the language employed by the Supreme Judicial 
Court in its opinion in Sachs v. Board of Registration in Medicine, 300 
Mass. 426, 430, 432, that the words "practice of medicine" as employed 
in G. L. (Ter. Ed.) c. 112 include the practice of osteopathy. This is in 
contradistinction to the practice of optometry, which is not embraced 



P.D. 12. 55 

within the phrase "practice of medicine" as used in said chapter 112, a 
difference pointed out in the said opinion (see G. L. (Ter. Ed.) c. 112, § 10). 
I am of the opinion that a doctor of medicine entitled to the degree, even 
if registered with the said board as an osteopathic practitioner, may use 
the letters "M.D." either with or without the letters "D.O." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Approval by Board of Collegiate Authority — Procedure. 

Dec. 9, 1946. 

Hon. John J. Desmond, Jr., Chairman, Board of Collegiate Authority. 

Dear Sir: — You have laid before me an advertisement of a hearing 
held by you upon the question of your approval or disapproval of articles 
of organization of the College of St. Joseph, transmitted to you by the Com- 
missioner of Corporations and Taxation under the provisions of G. L. 
(Ter. Ed.) c. 69, § 30, as amended, and have asked my opinion upon the 
following questions: 

"1. Whether or not the form which has been used to advertise a petition 
is correct, or does it have to include the hour and the signature of the 
Board? 

"2. If the form which has been used since the establishment of the 
Board is incorrect, does it invalidate the action of the Board in all previous 
cases if the petition was advertised as directed by the Board, a public 
hearing held at which there were no protests, and the petition approved or 
disapproved and returned to the Commissioner of Corporations and 
Taxation? 

"3. If a petition is filed through the usual channels and the Board, 
after the public hearing and investigation, feels that the petition should 
be restricted or expanded, does the Board have the authority to so indicate 
to the Commissioner of Corporations and Taxation, or does the institu- 
tion have to file another petition and readvertise according to the provi- 
sions of the law?" 

In your letter you repeatedly refer to a "petition" which is before you. 
I assume that by the word "petition" you refer to "articles of organiza- 
tion," as the statute makes no provision for any "petition" addressed to 
your board or to any other officials. 

1. In answer to your first question, let me say that the form of notice 
which you have shown me as that which was published with relation to 
the hearing concerning the said College of St. Joseph should properly 
have contained a reference to the hour at which the hearing was to be held 
and should have been signed at least by the chairman or secretary of the 
board. Moreover, it may be doubted if the notice correctly states the 
purpose of the hearing. It should state: "The hearing is for the purpose 
of determining whether the board will approve under the provisions of 
G. L. (Ter. Ed.) c. 69, § 30, as amended, the following articles of organi- 
zation of The College of St. Joseph, to wit:" 

2. In relation to your second question, it does not appear that action 
of the board in the past has been questioned and nothing is now before 
you requiring any action on your part. Even if some inaccuracies or 



56 P.D. 12. 

omissions have occurred in previous notices, it would not follow that 
the action of the board based thereon, under various circumstances sur- 
rounding different hearings, was necessarily void. 

3. I answer your third question to the effect that the board's authority 
with respect to articles of organization or proposed amendments of char- 
ters submitted to them by the Commissioner of Corporations and Taxa- 
tion is limited by the terms of said section 30 to approving or disapproving 
such articles or amendments. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Department of Public Utilities — Certificates to Steamships or Other Vessels 
for Carriage of Passengers or Property over Navigable Waters — Scope 
of Authority. 

Dec. 12, 1946. 

Commissioners of the Department of Public Utilities. 

Gentlemen: — You have through your chairman asked my opinion 
upon the following question: 

"Does the Department of Public Utilities have jurisdiction to grant 
or deny certificates of public convenience and necessity to steamships or 
other vessels for the carriage of persons or property for hire over Massa- 
chusetts navigable waters?" 

I answer your question in the negative. 

While it is true that under the provisions of G. L. (Ter. Ed.) c. 159, 
§ 12, as amended by St. 1945, c. 175, "ships or vessels in excess of one 
hundred gross tons using steam or Diesel engine as means of propulsion 
..." have been classified by the Legislature as common carriers when 
used for transportation of persons or property and made subject to the 
jurisdiction and control of the Department of Public Utilities, the Legis- 
lature has not, as you have yourself pointed out in your letter, made 
provision for "certificates of public convenience and necessity" to be 
issued by your commission and to be essential to operation of such ships 
or vessels. 

When the Legislature has deemed it wise to require such certificates 
as prerequisites to the carrying on of the functions of common carriers, it 
has set forth such requirement specifically and plainly with relation to 
some particular type of common carrier. (See with relation to: railroads, 
G. L. (Ter. Ed.) c. 160, § 17; street railways, G. L. (Ter. Ed.) c. 161, 
§§ 39, 40; electric railroads, G. L. (Ter. Ed.) c. 162, § 7; motor vehicle 
carriers, G. L. (Ter. Ed.) c. 159A, § 7.) 

No such authorization for the issue of or requirement for the possession 
of such certificates arises from the provisions of said chapter 159 by im- 
plication from the inclusion of the designated type of ships or vessels 
within the category of common carriers subject to the jurisdiction and 
control of your department. 

General provisions of said chapter 159 such as are contained in sections 
14 and 16, concerning control of common carriers generally and appli- 
cable in their nature to such ships or vessels, govern those furnishing 
service by means of such ships or vessels. (Opinion of Attorney General 
to the Department of Public Utilities, February 16, 1939; 1939 Op. Atty. 
Gen. 37.) 



P.D. 12. 57 

If it is desired that the operation of such ships or vessels be prohibited 
except upon the issuance of "certificates of pubhc convenience and neces- 
sity" to their respective owners, resort should bo had to the Legislature 
for the enactment of appropriate provisions to that effect. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veterans' Benefits — Duty of Children to Support Parents — Veterans' 

Dependents. 

Dec. 13, 1946. 

Hon. Francis X. Cotter, Commissioner of Veterans Services. 

Dear Sir: — In reply to your letter of December 12, 1946, let me say 
that it was held in an opinion of one of my predecessors in office (IV Op. 
Atty. Gen. 613, 615), in which I concur, that it was clearly evident from 
the context of St. 1915, c. 163, § 1, from which the present statute G. L. 
(Ter. Ed.) c. 273, § 20, derives, read in connection with the provisions of 
R. L. c. 79, §§ 18 and 19, relative to benefits for parents of veterans, 
similar in purpose to those of G. L. (Ter. Ed.) c. 115, as amended by St. 
1946, c. 584, that "this Commonwealth did not intend that its veteran 
soldiers or their dependents should be compelled to resort to its courts 
before becoming eligible to secure the aid which the Commonwealth is 
in duty bound to furnish," so that the soldier or his dependents have an 
independent status or right to receive relief irrespective of the perform- 
ance of the statutory duty of children to support them. 

I am of the opinion that the parents of a veteran are entitled under 
the terms of the present statute (G. L. (Ter. Ed.) c. 115, as amended by 
St. 1946, c. 584) to the benefits designed by its terms irrespective of the 
provisions of G. L. (Ter. Ed.) c. 273, § 20. 

It is to be noted, however, that a single exception to the general prin- 
ciple of law which I have pointed out is set forth in the present Veterans' 
Benefits statute (said chapter 115, as amended) itself, for in section 5 of 
said chapter 115, as amended by St. 1946, c. 584, it is provided: 

"No veterans' benefits shall be paid to or for any . . . dependent of a 
Hving veteran whom said veteran wilfully refuses and neglects to sup- 
port . . ." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



State Racing Commission — Rules — Misapplication of Regulations — 

Payment by Licensees. 

Dec. 18, 1946. 
State Racing Commission. 

Gentlemen : — By a recent letter you have in effect asked my opinion 
as to the authority of your commission to enforce the provisions of Rule 162 
of its Dog Racing Rules in relation to a race where the payment of certain 
sums, which your commission has deemed "under payments," to the 
public resulted not from any "errors or mechanical mishaps of totalizator 
machines" but from what were, upon the facts as you have stated them to 



58 P.D. 12. 

me in a brief submitted by you with your letter, errors of the presiding 
judge at the race in misinterpreting and misapplying Rules 13 or 33 of 
said rules. 

Said Rule 162 in the book of Dog Racing Rules of your commission 
which you have laid before me, reads : 

"Each licensee shall pay to the Commission on the day following each 
day of a dog racing meeting all monies accruing from under payments to 
the public in the mutuels, by reason of errors or mechanical mishaps of 
totalizator machines." 

Under the recognized principles of law for the construction of statutes 
and rules the word "errors" as appearing in Rule 162 refers, as do the 
words "mechanical mishaps," to the incorrect or inaccurate functioning 
"of totalizator machines" and not to errors of persons in the performance 
of their duties. The meaning of a word used in a statute or rule is or- 
dinarily to be construed in connection with the other words with which it 
is associated in a particular phrase. The context and phraseology of the 
rule as a whole do not indicate an intent that the character of the word 
"errors" should not be submerged by association with the words that 
follow it or that the word "or" as employed therein should have a dis- 
junctive meaning. Central Trust Co. v. Howard, 275 Mass. 153, 158. 

In view of the foregoing, irrespective of any other considerations, I 
answer the first specific question in your letter in the negative. This 
question reads: 

" Does the Commission have the legal right to collect the sum of $7,839.13 
from the Revere Racing Association, Inc. for violation of the Rules of 
Dog Racing adopted by the Commission." 

In view of my answer to your first question, no answer is required to the 
second. 

As to your third question, it appears from the papers which you have 
submitted to me that there is no dispute as to your right to collect S759.87 
for commission plus $12.86 for breakage (see stenographic record of hear- 
ing returned herewith, page 4). I am not aware of any right which you 
have to collect any other sums. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Governor — Scope of Authority with Regard to Fares on the Boston Elevated 

Railway. 

Dec. 26, 1946. 

His Excellency Maurice J. Tobin, Governor of the Commonwealth. 
Sir: — I am in receipt from you of the following letter: 

"The Public Trustees of the Boston Elevated Railway have decided to 
discontinue the five-cent charge for local rides on surface lines. This 
change became effective on Saturday, December 14, 1946. 

"I request your opinion as to whether I have the power under any pro- 
vision of law to overrule this decision of the Public Trustees and restore 
the five-cent charge which the Trustees have elected to discontinue." 

I am not aware of any provision of law which empowers you to overrule 
the decision of the Public Trustees of the Boston Elevated Railway to dis- 
continue the five-cent charge for local rides on surface lines. 



P.D. 12. 59 

It has been held in a long line of opinions by my predecessors in office 
that the right of the Trustees alone to regulate and fix fares and the charac- 
ter of the services and facilities of the railway has been fixed and estab- 
lished by virtue of Sp. St. 1918, c. 159. (1935 Op. Atty. Gen. 62, and 
opinions collected therein.) 

In my opinion the extraordinary authority vested in the Governor by 
St. 1942 (Sp. Sess.) c. 13, and St. 1941, c. 719, does not specifically or by 
implication authorize him to exercise such powers as you refer to with 
relation to said fares, inasmuch as the authority granted to the Governor 
under the said statutes of 1941 and 1942 is predicated as to its exercise 
upon its being necessary or expedient for meeting the supreme emergency 
of war and the said regulation of fares cannot be said to be necessary for 
such purpose. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Correction Officer — Power to Retire — Power to Approve by 

Governor and Council. 

Dec. 26, 1946. 
His Excellency the Governor and the Honorable Council. 

Sirs : — I have received through your secretary the following communi- 
cation requesting my opinion on certain questions of law connected with 
the proposed retirement of a correction officer of the Commonwealth. The 
communication reads: 

"The Commissioner of Correction has requested the approval of the 
Governor and Council of his action in retiring from active service and 
placing upon the Pension Roll a Correction Officer who was born May 20, 
1881 and is now over 65 years of age. He was first employed in the service 
of the Commonwealth at the State Prison at Charlestown as an Officer 
on December 1, 1908 and served in that capacity until October 10, 1931 
at which time he resigned. He was reinstated as a permanent Correction 
Officer at the State Prison on March 1, 1946 and has been employed con- 
tinuously up to the present date. He has had a total of 23 years and 7 
months service as an Officer at the State Prison at Charlestown. 

"It is requested that such retirement be effective at the close of business 
on January 4, 1947. 

"1. May the Governor and Council legally approve the action of the 
Commissioner based upon the above facts? 

"2. Does the present Council have the power to approve a retirement 
effective on January 4, 1947?" 

The applicable provisions of G. L. (Ter. Ed.) c. 32, § 46, under which I 
assume the retirement is made, presumably for superannuation, read: 

"The commissioner of correction may, with the appioval of the governor 
and council, retire from active service and place upon a pension roll any 
officer of the state prison, the state prison colony, the Massachusetts re- 
formatory, the state farm, the reformatory for women or any jail or house 
of correction, or any person employed to instruct the prisoners in any 
prison or reformatory, as provided in .section fifty-two of chapter one hun- 
dred and twenty-seven, or any other employee of the state prison or the 
Massachusetts reformatory, who has attained the age of sixty-five and 



60 P.D. 12. 

who has been employed in prison service in the commonwealth, with a good 
record, for not less than twenty years; . . ." 

1. The precise status of the correction officer to whom you refer is not 
made plain in your communication. 

If the officer, who originally entered the service in 1908, elected after the 
passage of St. 1911, c. 532, not to become a member of the retirement 
system established by that statute, his retirement rights and limitations 
are those now set forth in G. L. (Ter. Ed.) c. 32, § 46, and these do not re- 
quire that he leave the service on attaining a particular age. Accordingly, 
although already past the age of sixty-five, he would be still in the active 
service of the Commonwealth. Opinion of Attorney General to Commis- 
sioner of Public Health, May 27, 1946. 

If, however, the officer became a member of the retirement system under 
St. 1911, c. 532, he would now, after his re-entry into the service as a 
member, be governed by St. 1945, c. 658, § 3 (6), with relation to re-entry 
of members into active service, and by the provisions of said section 
3 (2) (e) and (/) would be required to leave the service at the maximum 
age for employees of his group, which would be at sixty-five, in which case 
he would have ceased to be in the active service on May 11, 1946, and 
could not now be retired, being no longer an employee in service. 

From the facts as you have stated them it would appear that the service 
of this officer with the Commonwealth had not been continuous. Said 
G. L. (Ter. Ed.) c. 32, § 46, under which retirement is sought, does not 
expressly mention "continuous service." Although the Supreme Judicial 
Court has said that under the terms of G. L. (Ter. Ed.) c. 32, § 53, with 
relation to the retirement of certain veterans, the requirement of "con- 
tinuous service" is to be implied from the phraseology of said section 53, 
there has been no judicial pronouncement requiring a similar implication 
from the words employed in said section 46. In the absence of such a pro- 
nouncement, I am of the opinion that the "active service" referred to in 
said section 46 is not solely that of continuous service. 

2. I answer your second question in the negative. The power to retire 
the official in question is vested by said section 46 in the Commissioner of 
Correction. It cannot, however, be exercised without the approval of the 
Governor and Council. 

Under the terms of the request, which you state was made by the Com- 
missioner, the actual act of retirement of the officer in question by virtue 
of the authority vested in the Commissioner will be effectuated on Jan- 
uary 4, 1947. Such act of retirement requires the approval of the Governor 
and Council having authority at the time when the act is effective, Jan- 
uary 4, 1947. The present incumbents of the offices of Governor and 
members of the Council will not be in office on January 4, 1947. It follows 
that the present Governor and Councillors cannot give a valid approval of 
such retirement which is to be effectuated after their respective terms of 
office have terminated. 

It has been said in an opinion of one of my predecessors in office, in 
which I concur, that an executive council had no power to revise the action 
of a former council in giving approval to an appointment (IV Op. Atty. 
Gen. 381, 383). It would follow from the reasoning of such an opinion 
that an executive council has no power to give its approval to a retirement 
which is to take place after it has gone out of office. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 61 

Armory — Non-military Use — Local Committee of a Political or Municipal 

Party. 

Dec. 27, 1946. 

Brig. Gen. Vincent H. Jacobs, Adjutant General's Office. 

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

"1. Your opinion is respectfully requested as to whether or not the 
inclosed request of the Democratic Club of Massachusetts for rental of 
an armory, as per paragraph 2, their letter of December 18, 1946, may 
be authorized under the provisions of G. L. c. 33, § 41 (c), as amended 
by St. 1939, c. 425, which permits the temporary use of armories for 
certain specified 'public purposes' for this particular application, as 
follows : 

"a. 'A meeting or rally of a particular party or a municipal party, as 
defined by section one of chapter fifty, conducted by the duly constituted 
local committee of such party; provided that no party shall be permitted 
the use of the same armory more than twice in the same year,' i.e., whether 
this organization is a 'political party or a municipal party' as set forth 
in said section 41." 

The request of the Democratic Club of Massachusetts, to which you 
refer and which you have annexed to your letter, reads: 

"Adj. Gen. William H. Harrison, Jr., State House, Boston, Mass. 

" Dear Sir : — Application is hereby made for the use of the East Armory 
on East Newton St., Boston for the evenings of Tuesday, December 31, 
1946 and Monday, March 17, 1947, by the Democratic Club 3f Massa- 
chusetts a duly organized political group under the statutes of Massachu- 
setts. 

"The purpose is to use the armory on these nights for political meetings 
with a banquet, speeches and the usual entertainment that goes with 
political gatherings. 

"Application is made for this permission under the provisions of Chap- 
ter 33, Section 41, subsection C of our General Laws. 

Respectfully submitted. 
Democratic Club of Massachusetts. 

By (Signed) Charles H. McGlue, 

President. 
11 Beacon Street, Boston, Mass., 
Room 304." 

G. L. (Ter. Ed.) c. 33, § 41 (c), par. 8, which you have set forth in your 
letter, limits the use of armories for the public purpose of "a meeting or 
rally of a political party or a municipal party, as defined by section one 
of chapter fifty" to those which are "conducted by the duly constituted local 
committee of such party." 

It does not appear from any information which you have laid before 
me that the "Democratic Club of Massachusetts" is the didy constituted 
local committee of the Democratic party or of a municipal party. Indeed 
such club is described in its request merely as "a duly organized political 
group under the statutes of Massachusetts." 

The words "duly organized local committee" as used in said section 41 
are, in my opinion, employed by the Legislature as meaning a "ward," 



62 P.D. 12. 

"town" or "city" committee, respectively, described in and organized 
under G. L. (Ter. Ed.) c. 52, as amended. 

This being so, it follows that the request to which you refer may not 
lawfully be granted under the provisions of the applicable statutes. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

State Racing Commission — Fair Employment Practices Commission Rules 
— Conflict of Authorities — G. L. (Ter. Ed.) c. 128A, § 10. 

Dec. 30, 1946. 
State Racing Commission. 

Gentlemen : — In a recent letter you have asked my opinion whether 
a rule of your commission made to render effective section 10 of chapter 
128A of the General Laws, as amended, and a form prescribed by your 
commission under such rule are in conflict with the rules of the Fair Em- 
ployment Practices Commission. 

Said section 10 in its applicable part reads: 

" . . . At least eighty-five per cent of the persons employed by a licensee 
at a racing meeting held or conducted by him shall be citizens of the 
commonwealth and shall have been such citizens for at least two years 
immediately prior to such employment." 

The rule which you have made with relation thereto reads: 

"The Commission shall require each Association to obtain from every 
person employed by them a sworn statement, on a form prescribed by the 
Commission, setting forth information regarding citizenship, place or 
places of residence during the past two years and answers to any other 
questions the Commission may prescribe." 

The form prescribed by the rule, which is to be filled in by employees 
of licensees, contains, among others, a statement as to the employee's 
place of birth, of his status as a citizen of the United States, and, if he is 
a citizen by naturalization, a statement of such fact with the date thereof, 
the number of his certificate and the place of its issue, and also a statement 
as to length of residence in the Commonwealth and the place or places of 
such residence. 

The appUcable statute in said section 10 requires that eighty- five per 
cent of the employees of a licensee shall be citizens of the Commonwealth 
for at least two years before employment. 

A person who is a citizen of the United States by birth or naturalization 
and a resident of a particular State is necessarily a citizen of that State 
(U. S. Const., 14th Amend.; Boyd v. Thayer, 143 U. S. 135, 161). An 
inquiry as to the naturalization or place of birth of an employee may, 
therefore, be material to a determination as to his citizenship in the Com- 
monwealth and as to the length of such citizenship prior to employment. 
Accordingly, it would appear that the requirement of statements from a 
prospective employee as to naturalization, such as appear under the said 
rule upon the prescribed form, is impliedly authorized by the provisions 
of said section 10. 

Since the requiring of such statements is so authorized by statute, it 
cannot be abrogated or prohibited by any rule of the Fair Employment 



P.D. 12. 63 

Practices Commission nor can it be properlj^ deemed to be evidence of 
discrimination against an employee on the part of an employing licensee 
subject to the provisions of said chapter 128A by force of any ruling or 
statement of policy made by such commission. 

In my opinion no changes in the said rule are required to be made by 
your commission. 

I have communicated the views which I have expressed herein to the 
Fair Emplo>inent Practices Commission and I am advised by them that 
they will not treat the inquiries as to naturalization or place of birth on 
the said form prescribed by you as evidence of unlawful discrimination 
on the part of a licensee. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Constitutional Law — Lowell Textile Institute — • Building Association — 

St. 1946, c. 428. 

Jan. 8, 1947. 
Board of Trustees of Lowell Textile Institute. 

Gentlemen: — I am in receipt from you of a letter asking my opinion 
on four questions relating to St. 1946, c. 428, entitled, "An Act incorporat- 
ing the Lowell Textile Institute Building Association for the purpose of 
providing additional dormitory and other facilities for said Institute." 

Chapter 428 creates a non-profit making corporation for the purpose of 
"constructing, equipping and maintaining buildings for dormitories, com- 
mons and other uses connected with the Lowell Textile Institute." 

It empowers such corporation : 

1. To hold for such purposes real and personal estate not exceeding 
$500,000. 

2. To fill vacancies in the membership of the corporation as originally 
specified in the act in a prescribed mode. 

3. To appoint oflEicers in a prescribed mode and to fix their duties and to 
make by-laws. 

4. To lease from the trustees of Lowell Textile Institute, they acting on 
behalf of the Commonwealth, subject to the approval of the Governor and 
Council, land for the erection and maintenance of dormitories and other 
buildings for the use of the Institute or its students. 

5. To lease to the said trustees, they acting on behalf of the Common- 
wealth, any real estate or buildings owned by the corporation for any use 
of the Institute. 

6. To borrow money and issue bonds. 

7. To pledge as security for the payment of such bonds rentals receivable 
under any lease made by the corporation to the trustees of Lowell Textile 
Institute. 

The act further authorizes the trustees of the Institute to tnake leases to 
the corporation of land for the erection of buildings for the use of the In- 
stitute or its students. 

The act further authorizes the trustees on behalf of the Commonwealth 
to take leases of any real estate or buildings which are owned by the cor- 
poration, and provides that any building so leased to the trustees by the 
corporation shall become the property of the Commonwealth upon pay- 



64 P.D. 12. 

ment in full of all obligations which the corporation may have incurred 
with relation to a building so leased to the trustees. 

The act designates the members of the corporation and names the in- 
corporators, who also constitute the board of directors, and authorizes 
remaining members and directors to fill vacancies in their number. But 
the act does not make any public officer as such an incorporator, nor does 
it provide that successor members shall be such officers. 

Although the corporation is by the terms of the statute a non-profit 
making organization and although the activities which it is authorized to 
carry on are for the promotion of a public purpose, namely, education, the 
corporation itself is plainly not under public management nor by any rea- 
sonable interpretation of the statute can it be said to be anything other 
than a private corporation. 

Your four questions are: 

1. Would the aforesaid lease from the corporation to the Common- 
wealth be a binding obligation on the Commonwealth whether or not the 
General Court appropriated sufficient funds to pay the rent? 

2. Does the act violate section 11 of Article LXII of the Amendments 
to the Constitution of Massachusetts by authorizing any transaction 
which constitutes a giving or lending of the Commonwealth's credit to or 
in aid of a private association or a corporation privately owned and man- 
aged? 

3. Does the act violate section 3 of said Article LXII in that the bonds 
issued by the corporation constitute a borrowing of money by the Com- 
monwealth not authorized by the General Court in accordance with the 
procedure specified in said section 3? 

4. Provided the bonds issued by the corporation are secured by a 
pledge of rentals suflBcient to make them legal investments for savings 
banks under the terms of the act, can any one savings bank in this Com- 
monwealth legally acquire the entire issue of the bonds? 

1. I answer your first question in the affirmative. The lease of a building 
by the corporation to the trustees under the fifth power described above 
will create a binding obligation upon the Commonwealth to pay through 
the trustees, or directly, the amount of rent agreed upon for the rental of 
such a building. The failure of the Legislature in any given year to appro- 
priate money for such payment, while causing some temporary embarrass- 
ment to the lessor, would not discharge the said obligation nor nullify the 
lease. The rental due might be recovered by the lessor through the courts 
under the provisions of G. L. (Ter. Ed.) c. 258. 

2. I answer your second question in the negative. Article LXII of the 
Amendments to the Constitution is, in part, as follows: 

"Section 1. The credit of the commonwealth shall not in any manner 
be given or loaned to or in aid of any individual, or of any private associa- 
tion, or of any corporation which is privately owned and managed. . . ." 

It is plain that this corporation is privately owned and managed. The 
incorporators named by the Legislature are not public officers nor is there 
provision that their successors shall be such. No power of management is 
vested in any public officer. 

Authority is granted by said chapter 428 to the corporation to borrow 
money and to issue bonds therefor, and specific authority is given to the 
corporation to pledge as security for the payment of the bonds the rentals 



P.D. 12. 65 

due the corporation from the Commonwealth referred to in my answer to 
your first question. 

The onl}^ obligations which the statute authorizes the Commonwealth to 
incur are obligations to pay rent for property it rents for the use of the 
Lowell Textile Institute or its students. Rentals are by their nature assign- 
able. The statute merely provides that they shall be assignable for a 
particular purpose. No contract of suretyship or guarantee of the cor- 
poration's obligations is contemplated. The Commonwealth's obligation 
under no circumstances goes beyond its obligation to pay rent. In my 
opinion this does not constitute giving or loaning the credit of the Com- 
monwealth in aid of the corporation. Certainly there is nothing in the 
Debates in the Constitutional Convention upon this amendment which 
indicates that sponsors of the amendment intended to prohibit such a 
transaction. (See Debates in the Constitutional Convention 1917-1918, 
Vol. Ill, pp. 1217-1234.) 

In other States similar plans have been held not to come within the 
inhibition of similar constitutional provisions. Baker v. Carter, 165 Okla. 
116, 25 P. (2d) 747; Loomis v. Callahan, 196 Wis. 518, 220 N.W. 816; 
McLain v. Regents of the University, 124 Ore. 629, 265 Pac. 412. 

3. I answer your third question in the negative. The bonds to be 
issued under said chapter 428 by the corporation are clearly not them- 
selves in any sense bonds or obligations of the Commonwealth. Obliga- 
tions of the maker of a bond are not pledged as security for the payment 
of further obligations of its own. The issue and sale of such bonds are not 
a borrowing of money by the Commonwealth but b}^ the corporation 

The principles of law which I have hereinbefore set forth were expressed 
by one of my predecessors in office in an opinion, with which I concur, 
dated January 12, 1940, to the Trustees of the Massachusetts State 
College with relation to a statute similar to said St. 1946, c. 428, namely, 
St. 1939, c. 388. 

4. I answer your fourth question in the affirmative. Said chapter 428 
provides that said bonds, when secured by a pledge of rentals sufficient in 
amount to meet the principal and interest of the said bonds, shall be legal 
investments for savings banks and domestic life insurance companies. 
Before the enactment of this statute such bonds, under existing laws, were 
not legal investments for savings banks or domestic life insurance com- 
panies (G. L. (Ter. Ed.) cc. 168-175). 

I am of the opinion that the intent and effect of chapter 428 are to make 
such bonds so secured legal investments for savings banks in the Common- 
wealth without limitation as to the amount of such bonds which can be 
purchased by any one savings bank or the proportion which the amount 
of such bonds held by a savings bank bears to its other investments. 

For the reasons given in my answers to your second and third ques- 
tions, I am of the opinion that said chapter 428 is constitutional. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



66 P.D. 12. 

Constitutional Law — Federal Funds in Grant. 

Jan. 9, 1947. 

Vlado a. Getting, M.D., Commissioner of Public Health. 

Dear Sir: — In a recent letter you have written me as follows: 

"The Department of Public Health receives grants-in-aid from the 
Children's Bureau and the U. S. Public Health Service of the Federal 
Security Agency. In the administration of these funds, which are not 
subject to appropriation bj^ the State Legislature, the Department acts 
as an agent of the Federal Government since both the Children's Bureau 
and the U. S. Public Health Service require that none of these funds be 
expended except in accordance with their regulations and with budgets 
and plans presented to them in advance for their approval. 

"The Department of Public Health is now about to receive, after ap- 
proval from the Commission on Administration and Finance and in ac- 
cordance with the Acts of the General Court, additional funds from the 
Children's Bureau which will be expended for the purchase of services to 
be rendered by a university in the development and teaching of courses in 
public health. From time to time such courses will be given in different 
universities and paid for entirely from federal grants derived from either 
the Children's Bureau or the U. S. Public Health Service." 

You have also informed me that no money of the Commonwealth itself 
is at any time to be used in making the payments referred to but that the 
Commonwealth, through you, will disburse sums which have been received 
from the agencies of the Federal Government which you have mentioned. 

You have asked my opinion as to whether "the purchase" from uni- 
versities of the services which you have referred to is in opposition to the 
laws or Constitution of the Commonwealth. 

The expenditures to which you refer are not forbidden by any law of the 
Commonwealth. 

They are not prohibited by Article XL VI of the Amendments to the 
Constitution of Massachusetts, commonly called the Anti-aid Amend- 
ment, nor by any other provision of the Constitution. 

The principles of law leading to the foregoing conclusions were laid 
down in an opinion by one of my predecessors in office, with which I con- 
cur (1942-1944 Op. Atty. Gen. 74). 

It was said in that opinion with respect to the prohibition of Article 
XLVI upon the use of "pubhc money" for the purpose of "founding, 
maintaining or aiding . . . any college, infirmary, hospital, institution, 
or educational, charitable or religious undertaking" that the words "pub- 
he money," as well as the words "moneys" and "money," as employed 
in the amendment, mean money belonging to the Commonwealth or one 
of its political subdivisions and do not comprehend money or funds which 
are those of the United States, and that under a plan similar to the one 
you have described in your letter the money received by the Common- 
wealth is at all times the money of the United States and not of the Com- 
monwealth. It was further said that under such a plan a State depart- 
ment in expending money so received from the Federal Government 
acts merely as an agent of the United States in expending on behalf of 



P.D. 12. 67 

the Federal Government for the purposes designated by the latter "money 
which at all times, when represented by checks or when received by nego- 
tiation of the checks, is that of the United States and not that of the 
Commonwealth." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Teachers' Retirement Association — Public Schools — Persons Employed in 
Care of Children of Preschool Age. 

Jan. 9, 1947. 

Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — You have asked my opinion upon two questions of law 
which are as follows : 

"(1) Shall persons employed under the provisions of St. 1946, c. 165 
be eligible to membership in the Teachers' Retirement Association; and 

"(2) Shall such persons be considered as 'teachers' entitled to all the 
rights and privileges of public day school teachers in the employ of the 
same school system?" 

I answer both your questions in the negative. 

St. 1946, c. 165, amended G. L. (Ter. Ed.) c. 71, by inserting therein 
sections 26A to 26F. The act was entitled: "An Act providing for ex- 
tended school services for certain children of certain employed mothers." 
Sections 26A and 26B read: 

"Section 26A. If the school committee of a town determines that 
sufficient need exists therein for extended school services for children, 
between three and fourteen years of age, of mothers who are employed, 
and whose employment is determined by said committee to be necessary 
for the welfare of their families, said school committee, subject to section 
twenty-six B, and with the approval of the city council or selectmen may 
establish and maintain such services. 

"Section 26B. If said school committee, upon determination by it of 
sufficient need, votes that said services should be established by it in such 
town upon approval of the city council or selectmen, it shall submit in 
writing a plan of said services to the commissioner of education for his 
written approval; provided, that said extended school services proposed 
in said plan shall consist of such care as shall be determined by standards 
established by said commissioner in consultation with the state depart- 
ment of public health and shall be operated by said school committee under 
the general supervision of said commissioner; and, provided further, that 
said school committee shall establish as one of the rules of admission of 
any such child to the benefits of said extended school services that the 
parents of such child shall pay toward the cost of said services such sum, 
not exceeding four dollars per week for such child, as said school committee 
shall determine, except that such payments in the case of children of pre- 
school age shall be at a weekly rate of not less than three dollars. For 
the purposes of clause (2) of section five of chapter forty, the establish- 



68 P.D. 12. 

ment and maintenance of said extended school services shall be deemed 
to be included within the term 'support of public schools.'" 

The other sections provide for the acceptance of funds from the Federal 
Government and of contributions from private sources for the purposes of 
such "extended school services," for the exceeding of a town's debt limit 
in anticipation of such Federal funds and for reimbursement by the Com- 
monwealth of a portion of the funds expended by a town for such "ex- 
tended school services." 

The word "teacher" is defined in the Contributory Retirement Law, 
G. L. (Ter. Ed.) c. 32, § 1, as amended by St. 1945, c. 658, § 1, as 

"any person who is employed by one or more school committees ... as 
a teacher ... in any public school as defined in this section ..." 

The words "public school" are defined in said section 1 as 

"any day school conducted in the commonwealth under the superintend- 
ence of a duly elected school committee and also any day school conducted 
under the provisions of sections one to thirty-seven inclusive of chapter 
seventy-four." 

The schools provided for by said G. L. (Ter. Ed.) c. 71, §§ 26A and 26B, 
inserted by said St. 1946, c. 165, cannot be said to be conducted "under the 
superintendence of a duly elected school committee," for by the provisions 
of said section 26B such schools "shall be operated by said school com- 
mittee under the general supervisio7i of said commissioner" (the Commis- 
sioner of Education) . 

The first clause of the quoted definition of "public schools" is in har- 
mony with the general principles of law relative to public schools set forth 
in various opinions of the Supreme Judicial Court. For example, in 
Leonard v. School Committee of Springfield, 241 Mass. 325, 329, the court 
said: 

"The policy of the Commonwealth from early times has been to estab- 
lish a board elected directly by the people separate from other governing 
boards of the several municipalities and to place the control of the public 
schools within the jurisdiction of that body unhampered as to details of 
administration and not subject to review by any other board or tribunal 
as to acts performed in good faith. ..." 

Day schools established as a part of the "extended school services" under 
said sections 26A and 26B do not appear to be a part of the general public 
school system of day schools provided for in G. L. (Ter. Ed.) c. 71, § 1, at 
which attendance is compulsory (G. L. (Ter. Ed.) c. 76, §§ 1, 2). They 
differ from the latter day schools in many material respects. By the pro- 
visions of said section 26B parents are required to pay stated sums for 
admission of children to these "extended school services." Such "serv- 
ices" are not described in said sections as schools and are required to give 
not tuition but "such care as shall be determined by standards established 
by the said commissioner." Some of the children who may be admitted 
are described in said section 26B as "children of preschool age." 

It would, therefore, appear that a "person employed" under the pro- 
visions of said sections 26A and 26B cannot be said to be "employed . . . 
as a teacher" in a public school either within the terms of the quoted defini- 
tion in said chapter 32 or within the meaning of the word "teacher" as 
employed in G. L. (Ter. Ed.) c. 70, § lA, with relation to reimbursement 



P.D. 12. 69 

for school salaries. Reimbursement for salaries of persons employed by a 
town in said "extended school services" is specifically provided for in 
section 26E of chapter 32 upon a basis different from that for reimbursement 
under said chapter 70 with relation to "teachers ... in the public day 
schools." 

\'^ery truly yours, 

Clarence A. Barnes, Attorney General. 



County — Treasurer — Commissioners — Payments for Tuberculosis Hos- 
pital. 

Jan. 13, 1947. 

Hon. Hexry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir: — You have asked my opinion as follows: 

". . . as to whether or no the county treasurer of Bristol County may 
make payments on account of salaries and expenses of the maintenance 
of said hospital on the order of the trustees of said hospital, without the 
signatures of the county commissioners as required in section 11 of said 
chapter 35." 

I answer your inquiry in the negative. 
G. L. (Ter. Ed.) c. 35, § 11, provides: 

"No payments, except payments of expenses in criminal prosecutions, 
of expenses of the courts, of the compensation or salaries of elected county 
officers, of outstanding notes or bonds and of interest thereon, shall be 
made by a treasurer except upon orders drawn and signed by a majority 
of the county commissioners, certified by their clerk and accompanied, 
except in Suffolk county, by the original bills, vouchers or evidences of 
county indebtedness for which payinent is ordered, stating in detail the 
items and confirming the account. Said clerk shall not certify such orders 
until he has recorded them in the records of the commissioners." 

St. 1945, c. 398, § 1, amended G. L. (Ter. Ed.) c. Ill, § 87, so that the 
county commissioners of Bristol are no longer trustees of the tuberculosis 
hospital of Bristol County and section 2, by further amendment of said 
chapter HI, established a new board of trustees with authority to manage 
such hospital and provided that "all pertinent provisions of law relative 
to county commissioners as trustees of such (county) hospitals shall, in 
the case of the hospital within the county of Bristol, applv to the trustees 
thereof." 

It was doubtless due to a misinterpretation of the above-quoted pro- 
vision of the statute that the county commissioners of Bristol have, as 
you inform me, signified their intention of refusing to make the necessary 
orders for payments in connection with the operation of said hospital. 

The duty of county commissioners to make orders for the payments of 
county expenses, which signify their approval thereof, exists by necessary 
implication from the terms of said G. L. (Ter. Ed.) c. 35, § 11, which 
prohibit a county treasurer from making such payments without such 
action by the county commissioners. 

This duty rests upon the county commissioners entirely, irrespective 
of whether they are or are not the trustees of a tuberculosis hospital. 



70 P.D. 12. 

The provisions of law imposing this duty are not "pertinent provisions 
of law relative to county commissioners as trustees of such (county) 
hospitals/' as the quoted words are used in said chapter 398, section 2, 
and not being such ''pertinent provisions," they are not made inapplicable 
to them nor applicable to the present trustees of the tuberculosis hospital 
of Bristol County with regard to the approval of payments to be made by 
the county treasurer for such hospital. 

It follows that the county treasurer may not make payments in con- 
nection with the operation of Bristol County Tuberculosis Hospital without 
orders of the county commissioners for the same, and that it is the duty 
of the county commissioners to make such orders for proper payments 
on account of salaries and expenses of the maintenance of said hospital. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veterans' Bonus — Service in the Armed Forces of the United States. 

Jan. 13, 1947. 

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

Dear Sir: — In a letter of January 8, 1947, with relation to those 
entitled to receive the so-called "bonus," you have requested my opinion 
"relative to the interpretation of the word 'served' as it appears in the 
fifth line in section 1 of chapter 731 of the Acts of 1945, to wit: 'To each 
person who shall have served in the armed forces of the United States.'" 

This precise request was made by you in a communication to me dated 
May 1, 1946, and was answered by me in an opinion to you rendered on 
May 3, 1946. 

In said opinion you were informed that by the use of the word "served" 
in said section 1 the Legislature intended to include within the sweep of 
the said section "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 to the active or inactive 
character of the service which was required of them thereafter by the 
armed forces prior to their discharge." 

An application of the foregoing principle, of which you were advised, 
to the specific cases of six applicants which you have set forth, respec- 
tively, in your letter of January 8, 1947, shows plainly that in each instance 
the applicant "served in the armed forces of the United States" as the 
quoted words are used in said section 1 of St. 1945, c. 731. 

When the Legislature has intended to indicate active duty with the 
armed forces as a prerequisite to obtaining a "bonus," it has done so in 
explicit phraseology by the use of the words "performed active service" 
(see St. 1946, c. 581, § 1 (1), (2)). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 71 

Armory — Non-military use — Lease. 

Jan. 17, 1947. 

His Excellency Robert F. Bradford, Governor of the Commonwealth. 

Sir : — I am in receipt from Your Excellency of the following letter, 
accompanied by a communication from the Adjutant General to you: 

"Enclosed herewith please find copy of a letter dated January 13th 
from the Adjutant General of Massachusetts relating to the National 
Guard Armory at Logan International Airport. 

"I should like to have an opinion from you as to the legal rights, if any, 
of Northeast Airlines as to the occupation of said Armory and as to the 
proper steps to be taken to compel the vacation of the Armory by said 
Airlines. 

"At the present time I do not request you to take action in accordance 
with the last sentence of the enclosed letter." 

You have not advised me of any facts which would give to the North- 
east Airlines even a color of right to occupy a State armory. No provi- 
sion of law exists in the statutes which authorizes the use of an armory 
for private business purposes. 

G. L. (Ter. Ed.) c. 33, § 38 (b), as amended, places the control of all 
armories in the Governor as Commander-in-Chief of the State Militia. 
Section 40 of said chapter 33 authorizes "every officer whose command 
occupies, or assembles or drills, in any armory, drill hall or building used 
according to law for that purpose" to have "control of such premises 
during the period of occupation, subject to orders of his superior officers," 
and it is provided that "any person intruding contrary to his orders or 
to the orders of his superior officers, or who interrupts, molests, obstructs, 
. . . the troops ... so occupying such premises, may be ejected, forci- 
bly, if necessary ..." 

The power to take order to oust the Northeast Airlines from their 
occupancy of an armory would appear to be vested in Your Excellency 
as Commander-in-Chief, through the Adjutant General, by ejecting the 
Airlines and would not require action on the part of the Attorney Gen- 
eral, especially as the Adjutant General states in his communication to 
you that: " It will be imperative that the portion of the building occupied 
by them [the Northeast Airlines] be used for military purposes." 

Whether the structure in question is technically an "armory" is not 
without doubt. The hangar for the use of the National Guard appears 
to have been constructed, as I am informed, in 1932 under an author- 
ization for a sale of notes by the State Treasurer, St. 1931, c. 268, §§ 1-5, 
to provide for the construction of public buildings and for permanent 
improvements. An appropriation from the proceeds of such sale was 
made as follows: 

'' Service of the Armory Commission. 

Item 

153b For the construction of aviation hangars and building for ad- 
ministrative purposes, a sum not exceeding two hundred fifty 
thousand dollars $250,000 00" 

It is not necessary to decide whether the structure in question is tech- 
nically an "armory," for even if such structure be not considered an 



72 P.D. 12. 

"armory," it is a public building devoted to the purposes of the military 
and there is no official who has authority to lease it or to permit occupancy 
for the purposes of a private commercial corporation. 

From such investigation as I have made of the situation it does not 
appear that the Northeast Airlines have ever received any lease of the 
building or any written permit to occupy it. The officials of the Northeast 
Airlines claim only that former Adjutant General Keville gave them an 
oral permission to occupy the hangar for an unspecified period, and that 
they received no reply to a letter written by them to him asking for a lease 
or permit. 

The former Adjutant General had no authority to give any permission 
to this private commercial corporation to occupy or make use of this public 
structure, and the Northeast Airlines derive no right to occupy from any 
such permission if ever given. It follows that if the structure is to be 
regarded not as an armory but as a public building, the Northeast Airlines 
are, nevertheless, a trespasser on the premises and their ejectment there- 
from may be made under your direction by the State Police. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — Reasons of Appointing Authority for not Selecting the First 
Person on an Eligible List — G. L. {Ter. Ed.) c. 31, § 15, Par. C. 

Jan. 21, 1947. 

Mr. Thomas J. Greehan, Director, and the Civil Service Commission. 

Gentlemen: — I am in receipt from the director of a letter asking my 
opinion relative to the action of the city marshal of Salem in giving a reason 
for not appointing one whose name appears highest on a certified list of 
persons submitted to him for promotion to the position of sergeant of 
police. 

The director informs me that the city marshal is the ''appointing officer" 
under the terms of the city charter, subject to the approval of the mayor; 
that the mayor has refused to approve a promotion proposed by the city 
marshal of the first person named in the certified list, and in promoting the 
second on such list the marshal has stated in effect that his "reason" for 
not promoting the one higher on the list is that the mayor refuses to ap- 
prove the promotion of the latter person. 

The letter asks whether, in my opinion, the "reason" given by the city 
marshal is a "reason" within the meaning of G. L. (Ter. Ed.) c. 31, § 15, 
par. C. 

I am of the opinion that said "reason" so given is one covered by the 
word "reason" in said paragraph C of section 15, which in its applicable 
parts reads: 

"In each instance when the appointing authority appoints or promotes, 
as the case may be, any person other than the person whose name appears 
highest on a list certified to him or it by the director for a position, the 
appointing authority shall forthwith deliver to the director a written state- 
ment of his or its reason for not appointing or promoting the person or 
persons whose name or names appear on such list with higher rating than 
the name of the person so appointed or promoted, and no appointment or 



P.D. 12. 73 

promotion of any person other than the person whose name appears high- 
est on such list shall become effective until such statement has been 
received by the director. ..." 

The fact that the mayor, whose approval is necessary to the promotion 
of a person, refuses to give it to number one on the certified list is a reason 
for the promotion by the marshal of number two. To rest only upon a 
promotion by the marshal, of which the mayor refuses to approve, under 
the circumstances described, would appear to leave vacant the place to be 
filled. In such a case, a promotion by the marshal of the next person upon 
the list who is acceptable to the mayor would seem to be the only way in 
which the vacancy could be filled, and the mayor's non-approval of the first 
person furnishes a reason for the marshal's promotion of the second. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Registration in Medicine — Interne — Limited Registration. 

Jan. 21, 1947. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam : — The Board of Registration in Medicine has through 
you asked my opinion upon the following question: 

"In order to meet the requirements of St. 1946, c. 293, must an appli- 
cant for examination, who is a non-resident, have been granted Limited 
Registration by this Board to cover an appointment as an interne, or is a 
statement from the hospital regarding his duties acceptable." 

I am of the opinion that such an applicant must have been registered 
as an interne under the provisions of G. L. (Ter. Ed.) c. 112, § 9, as amended 
by St. 1945, c. 186, in order to avail himself of the privileges granted 
under St. 1946, c. 293, with relation to being examined for registration as 
a physician by the said board under G. L. (Ter. Ed.) c. 112, § 2, as amended. 

The applicable portion of said St. 1946, c. 293, reads: 

" Notwithstanding any contrary provision . . . all persons not residents 
of this commonwealth who received the degree of doctor of medicine 
from Middlesex University school of medicine prior to January first, 
nineteen hundred and forty-six and who shall have interned in a charita- 
ble or municipal hospital within the commonwealth said interneship 
having commenced prior to said January first, nineteen hundred and 
forty-six shall be eligible to be applicants for registration as qualified 
physicians, shall be examined for such registration by the board of regis- 
tration in medicine ..." 

With relation to interneship, G. L. (Ter. Ed.) c. 112, § 9, as amended, 
is as follows: 

"An applicant for limited registration under this section who shall 
furnish the board with satisfactory proof that he is twenty-one or over 
and of good moral character, that he has creditably completed not less 
than three and one half years of study in a legally chartered medical 
school having the power to grant degrees in medicine, and that he has 
been appointed an interne, fellow or medical officer in a hospital or other 



74 P.D. 12. 

institution maintained by the commonwealth, or by a county or mu- 
nicipality thereof, or in a hospital or clinic which is incorporated under 
the laws of the commonwealth or in a clinic which is affiliated with a 
hospital licensed by the department of public health under authority of 
section seventy-one of chapter one hundred and eleven, may, upon the 
payment of five dollars, be registered by the board as a hospital medical 
officer for such time as it may prescribe; but such limited registration 
shall entitle the said applicant to practice medicine only in the hospital 
or other institution designated on his certificate of limited registration, 
or outside such hospital or other institution for the treatment, under the 
supervision of one of its medical officers who is a duly registered physician, 
of persons accepted by it as patients, and in either case under regulations 
established by such hospital or other institution. Limited registration 
under this section may be revoked at any time by the board." 

It is obvious from the phraseology of said section 9 that an interne is 
regarded by the Legislature as one practicing medicine, though carrying 
on such practice in a restricted area. In order to be entitled to practice 
in such manner he is required to be registered by the said board. This 
form of registration is called "limited registration" by the phraseology 
of said section 9, but it appears to be a registration to practice medicine 
of the same kind if not of the same extent as that provided for physicians 
generally by section 2 of said chapter 112 and equally necessary for lawful 
authorized practice of medicine within its scope. 

Stection 6 of said chapter 112 prohibits the practice of medicine, except 
as lawfully authorized, with penal provisions. 

Reading said St. 1946, c. 293, and said G. L. (Ter. Ed.) c. 112, §§ 2, 6 
and 9, together so as to form an harmonious whole, it seems apparent 
that when the Legislature referred in said chapter 293 to those "who have 
interned in a charitable or municipal hospital," it intended to designate 
those who had practiced medicine as internes in accordance with the 
lawful authorization provided for by said section 9 of chapter 112, and 
that by the word " interneship " in said chapter 293 it intended to refer 
to a lawfully authorized period of work as an interne practicing medicine 
in connection with the designated classes of hospital. 

A mere statement from a director of a hospital that a doctor had acted 
in the capacity of an interne cannot supply the lack of lawful authoriza- 
tion through registration under said section 9. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Creditable Service — Transfer of Certain Employees to Federal 
Employment — Veterans. 

Jan. 27, 1947. 
State Board of Retirement. 

Gentlemen : — I am in receipt of a communication from you asking 
my opinion as to whether you may allow creditable service to those present 
employees of the Commonwealth in the service of the Division of Em- 
ployment Security who were transferred to the employ of the Federal 
Government by executive order and who, while in the employ of the 
Federal Government, entered on leaves of absence the armed forces of the 
United States. You also inquire as to whether the Commonwealth should 



P.D. 12. 75 

pay such of the contributions of said employees to the retirement system 
as became due while they were on such military leave from the service of 
the Federal Government. 

St. 1943, c. 535, § 1, provided for the reinstatement in the Common- 
wealth's service in the Division of Employment Security of those em- 
ployees who had been transferred to the United States Employment 
Service, with such promotional and seniority privileges and rights as they 
would have had if they had never left the Commonwealth's service. 

Section 3 of said chapter 535 provides that any such employee when 
reinstated in the Commonwealth's employment service shall "be re- 
stored to full status under the contributory retirement system" and 

"shall receive credit for his full service while he was a member of the 
federal and state retirement systems if his accumulated deductions in 
the state retirement system have not been withdrawn, or if he pays into 
the annuity savings fund . . . the full amount withdrawn by him upon 
the termination of his employment in the service of said division of employ- 
ment security, and in either case an additional amount equal to the payments, 
with regular interest, which he would have contributed if he had remained 
a member of said state retirement system." 

It follows that such an employee when reinstated in the Common- 
wealth's service and in the retirement system is entitled to have credited 
to him by the retirement system the full time that he was a member of 
both the State and Federal retirement systems. 

There is no provision in said chapter 535, however, which provides 
that the Commonwealth, through the retirement system, shall pay into the 
system for the benefit of such an employee the amount of the contribu- 
tions which he would have made to the State retirement system allocable 
to the period when he was in the Federal Employment Service. No other 
statute provides for such a payment on behalf of such an employee nor 
for the payment of withdrawals which he may have made. 

As to the amount of the contributions which would have been due from 
such an employee had he remained in the Commonwealth's service and 
which are allocable to the period when the employee was on leave from the 
Federal Employment Service and in the military or naval service of the 
United States, provision appears to have been made for payment by the 
State system on behalf of the employee. 

With relation to the type of employee under consideration, St. 1943, 
c. 535, § 1 (e), provides that he 

"shall be entitled to all rights and privileges provided by chapter seven 
hundred and eight of the acts of nineteen hundred and forty-one, as 
amended; provided, that they would have been subject to the provisions 
of said chapter seven hundred and eight, as amended, had they remained 
in the service of the division of employment security or its successor; and 
provided, further, that the same or similar positions are re-established 
in the division of employment security or its successor or exist in some other 
department, board or commission of the commonwealth." 

St. 1941, c. 708, as amended, in section 9 pro\ides that a person who 
leaves the service of the Commonwealth to enter the military or naval 
forces of the United States after January 1, 1940, and serves therein shall, 
when reinstated or reemployed in the service of the Commonwealth, have 
credited to him as creditable service under any contributory system the 



76 P.D. 12. 

period of said military or naval service, and the Commonwealth shall pay 
into the retirement system the amount which said person would have paid 
had his employment with the Commonwealth not been interrupted by his 
military or naval service. 

Reading the provisions of said St. 1941, c. 708, § 9, and of St. 1943, 
c. 535, § 3, together so that they will be harmonious, it appears that the 
Commonwealth is to pay the contributions of the employees under con- 
sideration for the period of their military or naval service, even if they 
entered such service from the Federal Employment Service under the 
circumstances which you have described. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Municipality — Investment of Trust Funds. 

Feb. 21, 1947. 
House Committee on Municipal Finance. 

Gentlemen : — Your committee has asked my opinion on the following 
question : 

"Do the provisions of G. L. c. 44, § 54, as amended by St. 1946, c. 358, 
§ 24, authorize the investment of trust funds held by a city or town, when 
not otherwise provided by the donor, in real estate mortgages?" 

I answer your question in the negative. 

G. L. (Ter. Ed.) c. 44, § 54, as amended by St. 1946, c. 358, § 24, reads: 

"Trust funds, including cemetery perpetual care funds, unless otherwise 
provided or directed by the donor thereof, shall be placed at interest in 
savings banks, trust companies incorporated under the laws of the com- 
monwealth, or national banks, or invested by cities and towns in paid-up 
shares of co-operative banks, or in bonds or notes which are legal invest- 
ments for savings banks. This section shall not apply to Boston." 

The phrase "bonds or notes which are legal investments for savings 
banks" cannot reasonably be said to indicate a legislative intent to author- 
ize investment of trust funds in "real estate mortgages," and it is obvious 
that the other forms of investment mentioned in said section 54 do not 
include such mortgages. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Treasurer — Deposits by Fire Insurance Companies — Merger. 

Feb. 21, 1947. 

Hon. Laurence Curtis, Treasurer and Receiver General. 

Dear Sir : — You have written me as follows : 

"St. 1941, c. 654, § 2, provides that the State Treasurer may release 
deposits of domestic insurance companies ' if he is satisfied that the deposit 
or portion thereof requested to be returned is subject to no liability and is 
no longer required to be held by any provision of law of this commonwealth 



P.D. 12. 77 

or of any such other state or country or for the purpose of the original 
deposit.' 

"I have been requested to release two deposits, each of $100,000.00, 
originally deposited by the Worcester Manufacturers Mutual Insurance 
Company and the Fall River Manufacturers Mutual Insurance Company, 
as a result of their merger with the Boston Manufacturers Mutual Fire 
Insurance Company. 

"My understanding is that under the above-cited section the State 
Treasurer holds these deposits 'in trust.' The general nature of the trust 
is for protection of the policy holders. It appears to me that there are 
quite a few questions of law involved in the decision as to whether these 
deposits might be needed any longer to protect the policy holders, and 
that before I release these deposits I should seek advice of my counsel, 
which I take it you are. 

"I am therefore transmitting herewith the various papers supporting 
this request and I should appreciate it very much if you would advise me 
as to whether in your opinion the legal requirements outlined in the statutes 
for the release of such deposits have been complied with." 

I am advised by the Department of Insurance that the deposits in ques- 
tion were made with you by two domestic mutual fire insurance companies, 
respectively, under the provisions of G. L. (Ter. Ed.) c. 175, § 185, as 
amended, to comply with the laws of the States of Alabama and Rhode 
Island. Said section 185 in its applicable parts reads: 

"The state treasurer in his official capacity shall take and hold in trust 
deposits made by any domestic company for the purpose of complying 
with the laws of this commonwealth or of any other state or country to 
enable such company to do business in such state or country ... 

"The state treasurer may, upon written request of any domestic com- 
pany, return to it the whole or any portion of any deposit held by him on 
behalf of such company, if he is satisfied that the deposit or the portion 
thereof requested to be returned is subject to no liability and is no longer 
required to be held by any provision of law of this commonwealth or of 
any such other state or country or for the purpose of the original de- 
posit. . . ." 

You have informed me and it appears from documents furnished by the 
Secretary of the Commonwealth that a merger has been effected by these 
companies with the Boston Manufacturers Mutual Fire Insurance Com- 
pany, under the provisions of G. L. (Ter. Ed.) c. 175, § 19A, as amended. 
By the terms of this merger the Boston Manufacturers Mutual Fire In- 
surance Company receives all the assets of the other two companies and 
assumes all their liabilities. By the terms of the merger all the policies of 
the two first-named companies are reinsured and assumed b}^ the Boston 
Manufacturers Mutual Fire Insurance Company. I am advised that the 
last-named company has a deposit with you under the provisions of said 
section 185 for the same purposes as those previously made by the other 
two companies. 

You have shown me communications from the Insurance Commissioner 
of Rhode Island and from the Bureau of Insurance of Alabama stating that 
as a result of the merger the withdrawal of the respective deposits of the 
two merged companies has their approval. You have also shown me a 
communication from the Department of Insurance of this Commonwealth 



78 P.D. 12. 

stating that it has no objection to the release of the said deposits to the 
two now merged companies which originally placed them with you. 

Although such deposits may be held in trust for all creditors and policy- 
holders of the said merged companies, "the purpose" of such deposits was 
that said companies might comply with the laws of Alabama and Rhode 
Island so as to enable them to do business in those States. I assume that 
this is so from the facts stated in a letter to you from the Department of 
Insurance of February 5, 1947, which you have laid before me. 

No provision of law of this Commonwealth required or now requires that 
such deposits be maintained with you by the two now merged domestic 
fire companies. 

In view of the existence of the said merger, the fact that no law of the 
Commonwealth requires a deposit from these companies, and the assur- 
ance from the Insurance Departments of Alabama and Rhode Island that 
they do not object to the release of the deposits, as well as the acquiescence 
therein by the Department of Insurance of this Commonwealth, I am of 
the opinion that it would not be unreasonable for you to be "satisfied that 
the deposit . . . requested to be returned is subject to no liability and is 
no longer required to be held by any provision of law of this commonwealth 
or of any such other state or country or for the purpose of the original 
deposit," as the quoted words are used in said section 185. Accordingly, 
if you are so satisfied of the conditions set forth in the above-quoted pro- 
visions of said section 185 it would be proper for you to return the two 
deposits in question. 

There is nothing in the considerations which I have set forth in opposi- 
tion to the decision of the Supreme Judicial Court in McMurray v. Com- 
monwealth, 249 Mass. 574. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Armories — Non-military use — Rules — Permit — Inspection. 

Feb. 21, 1947. 
Gen. William H. Harrison, Jr., Adjutant General. 

Dear Sir: — I have received from you the following communication: 

"In view of the increased use of State-owned armories by outside parties, 
an early opinion is requested as to the responsibility of this department 
that the lessee comply with the permit issued by the Department of Public 
Safety. 

"The permits issued by this department are issued subject to compli- 
ance with local, State, and Department of Public Safety regulations. 
(Copy of permit attached.)" 

The permit issued by your department to which you refer is granted for 
the use of an armory under the provisions of G. L. (Ter. Ed.) c. 33, § 41, 
upon the following conditions which are printed thereon, among others: 

"4. This permit is granted subject to: 

"a. Rules and regulations governing the use of state-owned armories as 
published by this Division under the authority of Section 41, (a), of said 
Chapter 33 relative to the safeguarding of public property and cleaning 
the armory after its use. 



P.D. 12. 79 

"6. Statutory regulations relative to inspection and approval as a place 
of assembly for the purpose in question by local and/or state authorities 
under the provisions of Chapter 143 of the General Laws as amended. 

"c. Issuance of, and compliance with, certificate of inspection by the 
State Dept. of Public Safety. 

"d. Compliance with Local, State and Federal law and regulations 
where apphcable." 

I am informed that the Department of Public Safety makes an initial 
examination of an armory as a "public hall" and forwards the result of 
the same to you and issues a certificate of inspection in respect thereto 
and a permit for use. 

Prior to the amendment of G. L. (Ter. Ed.) c. 143, § 1, by St. 1946, 
c. 363, by definition a "public hall" by specific exception did not include 
an armory. B}^ the said amendment an armory was not specifically ex- 
cluded from the definition of a "public hall." Nevertheless, by the ex- 
press terms of said G. L. (Ter. Ed.) c. 143, as amended, buildings owned 
by the Commonwealth are excepted from the provisions of the chapter 
relative to inspections under the ordinances of municipalities (G. L. (Ter. 
Ed.) c. 143, § 3, as amended) and from the scope of inspections by the 
Department of Public Safety under section 33 of said chapter 143, as 
amended. There is no provision requiring the inspection of armories by 
the Department of Public Safety. The mere change in definition of a 
"public hall" cannot supply the place of a statutory provision requiring 
the said department to inspect armories, which are buildings owned by 
the Commonwealth. 

Irrespective of whether or not the Department of Public Safety is 
required to issue a certificate of inspection and a permit to use an armory 
for indicated purposes, no duty to inspect the armory for violations of 
laws or permits rests upon the Department of Public Safety, since an 
armory is a building owned by the Commonwealth which, as I have 
pointed out, is excluded by the terms of said chapter 143, as amended, 
from the requirement of such inspection. 

This being so, the duty of inspection of the use of an armory to see that 
the so-called lessee thereof is observing the conditions of the permit that 
you issue to him, which conditions include compliance with the appli- 
cable statutory laws and the certificate and permit given by the Depart- 
ment of Public Safety, particularly as they relate to fire hazard, rests 
upon your department as the governmental agency in charge of the use 
of armories and the one which issues permits for their use and occupancy. 

Very truly yours, 

Clarence A. Barnes, Attorney General, 

Examiners of Plumbers — Town Regulations by By-law — Plumbing In- 
spector. 

Feb. 25, 1947. 
Mrs. Mae Manning, Director of Registration. 

Dear Madam: — I acknowledge your letter of February 12, 1947, in 
which you ask my opinion for the Board of Examiners of Plumbers as 
follows : 

"(a) Is it mandatory that the Town of Shrewsbury adopt plumbing 
regulations under the authority of either Sections 8 and 9 or Section 13, 
Chapter 142, General Laws? 



80 P.D. 12. 

"(b) If the answer to the preceding question is 'no,' can the Town of 
Shrewsbury legally appoint a plumbing inspector who is not qualified 
under Sections 11 and 12, Chapter 142, General Laws? 

"(c) If the answer is 'yes,' what procedure can the Board of Examin- 
ers of Plumbers use to compel the Town of Shrewsbury to comply with 
the applicable provisions of Chapter 142, General Laws?" 

It appears that the town of Shrewsbury adopted its own plumbing 
by-law by vote of its inhabitants on December 20, 1921. Approval was 
given to this by-law by the Attorney General on April 28, 1922, and this 
by-law is still in force. No evidence appears that the town has ever spe- 
cifically adopted any of the sections of chapter 142 in their present form 
or corresponding provisions of earlier laws, nor does it appear that the 
town has ever requested rules formulated by the Examiners under sec- 
tions 8 and 9 of said chapter 142. 

The application of chapter 142 is governed by section 2, the pertinent 
portion of which is as follows: 

"... Sections one, three, six and seven and sections eleven to sixteen, 
inclusive, shall apply to all towns which by vote of their inhabitants 
accept said sections or have accepted corresponding provisions of earlier 
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." 

It is my opinion that under this section the provisions of chapter 142 
do not apply to Shrewsbury. It is also my opinion that the requirements 
of section 13 have been satisfied by the by-law of the town which is above 
referred to and which is now in force. 

Therefore, I answer the three questions propounded by your letter as 
follows : 

(a) In my opinion it is not mandatory that the town of Shrewsbury 
adopt plumbing regulations under sections 8, 9 or 13 of chapter 142. 

(b) The town of Shrewsbury may appoint a plumbing inspector pur- 
suant to its own town by-law, which plumbing inspector may not be 
qualified under sections 11 and 12 of chapter 142. 

(c) The town of Shrewsbury not being subject to the provisions of 
chapter 142, the Examiners of Plumbers cannot compel the town to com- 
ply with any of its provisions. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement System — Eligibility of Certain Member of Organized Militia. 

Mar. 10, 1947. 

Hon. Laurence Curtis, Chairman, State Board of Retirement. 

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

"The State Board of Retirement had before it at its last meeting the 
enclosed letter of February 10, 1947 from the Adjutant General's office 
requesting information as to eligibility to join the State Retirement System 
of certain persons of the Massachusetts Organized Militia. 



P.D. 12. 81 

"It appeared to the Board that the answer was not entirely clear under 
the governing statutes, and it was voted that an opinion be requested 
from the Attorney General. 

"The Board will very much appreciate such opinion." 

The letter enclosed with your communication is from the Adjutant 
General and reads: 

"1. Information is desired as to whether an officer or enlisted man of 
the Massachusetts Organized Militia who is detailed to duty by proper 
orders to the Military Division of the State, to which duty he devotes his 
entire time, and who is paid from State funds, is eligible to become a mem- 
ber of the State Retirement System. 

"2. We have two officers on duty now who have been detailed to this 
Division for periods of 10 to 25 years, paid entirely from State funds, 
and whose sole employment is by the State." 

I know of no reason why the officers referred to in the Adjutant Gen- 
eral's letter, who have been detailed to his department for duty for periods 
of from ten to twenty-five years, who are paid by State funds and devote 
all their time to the duties of their respective positions in said department, 
are not eligible, if other qualifications, such as age, called for by G. L. 
(Ter. Ed.) c. 32, as amended, are possessed by them, to be members of 
the State Retirement System. 

From the above facts, which the said letter and communication set 
forth, these officers would appear to fall within the definition of "em- 
ployee" as used in the second sentence of the eighteenth paragraph of 
section 1 of chapter 32 of the General Laws, as amended. 

The provisions as to what employees shall be eligible for membership 
in a retirement system, to be found in said chapter 32, section 3, appear to 
include such an "employee" as the two officers. to whom you refer. There 
appears to be no provision of said chapter 32 specifically or by implication 
denying the privilege of membership to officers or enlisted men of the 
organized militia engaged in full time duty in a department under condi- 
tions such as are described in the said letter and communication. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Public Utilities — Hearings — Appearance of Persons not 

A ttorneys-at-Law . 

Mar. 13, 1947. 

Hon. Carroll L. Meins, Chairman, Department of Public Utilities. 

Dear Sir : — In your recent letter you state that the appearance before 
your department in behalf of several competing motor vehicle carriers, in 
opposition to an application for a regular route common carrier certificate, 
of a former employee of your department, who is not a lawyer, and was 
retired last year on pension, is objected to on the following grounds: 

1. That, as a retii'ed employee, he is subject to recall to duty in the 
department under the emergency war powers of the Chief Executive; and 

2. That, not being an attorney-at-law quaUfied to practice in the Com- 
monwealth, he is not authorized under G. L. (Ter. Ed.) c. 159B, § 2 to 
represent parties at such hearing. 



82 P.D. 12. 

As to the first ground above stated, you have not asked my opinion. 
However, it apparently has not come to the attention of counsel making 
this objection that the power of the department to recall to service em- 
ployees who have been retired was given by St. 1942, c. 15, § 1, as amended 
by St. 1943, c. 502, § 1. This power terminated on June 26, 1946, by 
virtue of St. 1946, c. 55. The amendment contained in St. 1946, c. 306, 
does not affect such termination in the case of a retired employee of your 
department, and I am not aware of any exercise of any emergency war 
power which authorizes the re-employment of any such retired employee. 

While it m_ay be within the power of your department to exclude former 
employees from appearing before the department, I am not aware that 
any such exclusion order has ever been made and assume that you have 
no intention of excluding the former employee in question on that ground. 

With regard to the other ground of objection, you have asked me the 
following specific question: 

"Do the provisions of G. L.,c. 159B, § 2, defining the term 'Hearings,' 
forbid the appearance at a hearing held under such chapter as represent- 
ing a party to the proceedings of any person other than a qualified attorney 
at law?" 

The foregoing question refers to the following definition contained in 
G. L., c. 159B, § 2, as amended: 

" 'Hearings' provided for by this chapter shall be public, upon written 
notice to the material parties thereto, with the right to such parties to 
appear in person and to be represented by counsel, and with each witness 
testifying on oath." 

There are no decisions of the Supreme Judicial Court of this Common- 
wealth upon the question whether the word "counsel," in the foregoing 
definition, is restricted to an attorney-at-law. The following decisions 
relative to that word, in statutes of other states, construe it as meaning 
an attorney-at-law: 

Baker v. State (Okla.) 130 P. 820. 

Ingraham v. Leland, 19 Vt. 304, 307. 

State V. Russell, 83 Wis. 330. 

Ludlam v. Broderick, 15 N. J. L. 269, 271. 

Harkins v. Murphy & Bolanz (Tex.), 112 S. W. 136. 

See also, as to the word "counsel" in the Federal Constitution, Sixth 
Amendment, and in the Constitution of Alabama, respectively: 

United States v. Ragen, 52 F. Supp. 265, 270. 
Ex parte Lamberth, 242 Ala. 165, 167. 

The foregoing cases seem to be decisive and I therefore advise you that 
the statute above cited forbids a person other than an attorney-at-law to 
represent a party to a proceeding under G. L., c. 159B, as amended. 
However, the contention might be made that the word "counsel" in the 
statute includes any person whom your department permits to appear 
before it as counsel, even though not an attorney-at-law. In view of this 
possible contention, it seems desirable to consider the effect upon the case 
before your department of G. L., c. 221, § 46A, as appearing in St. 1935, 
c. 346, § 2, which reads as follows: 

"Section 46A. No individual, other than a member, in good standing, 
of the bar of this commonwealth shall practice law, or, by word, sign, 



P.D. 12. 83 

letter, advertisement or otherwise, hold himself out as authorized, en- 
titled, competent, qualified or able to practice law; provided, that a mem- 
ber of the bar, in good standing, of any other state may appear, by 
permission of the court, as attorney or counselor, in any case pending 
therein, if such other state grants like privileges to members of the bar, 
in good standing, of this commonwealth." 

Under the foregoing provision of law, if the conduct of a hearing before 
a quasi-judicial tribunal, such as your department, in behalf of several 
parties, is the practice of law, then it is forbidden by the foregoing section. 
If this is so, the failure of objecting counsel to cite or mention G. L., c. 221, 
§ 46A, does not prevent you and your associates from performing your 
plain duty. You should refuse to permit a person, who is not a member 
of the bar, and who is objected to as not being a member of the bar, to 
practice law before you, if that is what he is doing, irrespective of the 
form of langTiage in which the objection is put. Our Supreme Judicial 
Court has repeatedly gone behind the form to the substance of the trans- 
action, where the practice of law is concerned. 

Graustein v. Barry, 315 Mass. 518, 520, 521. 

Gill V. Richmond Co-operative Assoc. Inc., 309 Mass. 73, 76. 

Sherwin-Williams Co. v. /. Mannos & Sons, Inc. 287Mass. 304, 311. 

The question whether taking part in contested hearings before a quasi- 
judicial body, such as your department, is the practice of law, has not been 
clearly determined by our Supreme Judicial Court. This question was 
the subject of comment, but not decision, in Lowell Bar Assn. v. Loeh, 315 
Mass. 176, at pages 184 and 185. However, I can conceive of no activity 
before an administrative tribunal which more clearly requires the services 
of an attorney-at-law of learning and ability than taking part in a con- 
tested trial before your department. If that is not the practice of law, no 
activity before an administrative tribunal in this Commonwealth is the 
practice of law. The art of advocacy is there developed in one of its high- 
est forms. Learned counsel of eminent ability frequently appear before 
your body. The proceedings are sharply contested and often protracted. 

Procedure before the commission of your department is regulated by 
several statutes, among which is G. L., c. 25, § 5, requiring the commission 
to rule upon questions of substantive law, and to act upon written requests 
for rulings. The proceedings are taken down stenographically, and hearings 
are conducted much like trials in court. The statute last cited provides 
for appeals to the Supreme Judicial. Court. Such appeals are not infre- 
quent. The statute gives them precedence over ordinary civil proceedings, 
and the questions presented are among the most difficult coming before 
that tribunal. 

In view of the foregoing facts and statutes, it is my opinion that the 
conduct of contested hearings before your department is the practice of 
law. 

A recent decision in point is State v. Childs, (Neb.) 23 N. W. (2d), 720, 
in which, in one case, it was charged that the defendant before the Nebraska 
State Railway Commission "acting as an attorney at law in behalf of his 
clients, prepared and filed pleadings and other documents therein, examined 
and cross-examined witnesses . . . objected to the introduction of testi- 
mony . . . and made arguments before said commission in support of 
the petition and those for whom he appeared." It also appeared that the 
case involved difficult questions of law and fact. The trial procedure 



84 P.D. 12. 

before the Nebraska Commission was described, which is similar to that 
before your commission. The opinion also stated that the respondent 
took part in the making of a record in contemplation of a judicial review. 

In that case and another in which he acted as counsel and submitted a 
brief, the court held that the defendant performed services which required 
legal training, experience and skill, and that he was guilty in those two 
cases of the illegal practice of law. The court also said, at page 723: "It 
is the character of the act and not the place where the act is performed 
that constitutes the controlling factor." 

At an earlier stage of the same case, the court said, referring to the 
defendant's alleged skill as a rate expert, 295 N. W. 381, 383, 384: 

"We do not doubt that respondent possesses high qualifications in the 
transportation rate field. But the fact that he can qualify as an expert in 
a particular field will not permit his engaging lawfully in the profession 
of law without a license to do so." 

See also, People v. Goodman, 366 111. 346. 

Clark V. Austin, 340 Mo. 467, esp. p. 481. 
Shortz V. Farrell, 327 Penn. St. 81. 
State V. Wells, 191 S. C. 468. 

In Lowell Bar Assn. v. Loeh, 315 Mass. 176, the court said, at page 184, 
speaking of practice before the Appellate Tax Board : 

"If such practice by one not a member of the bar is the practice of law, 
no rule of such a tribunal can legahze it." 

Before that board, cases may arise that lie solely within the realm of 
accounting, and it is barely possible that the Supreme Judicial Court 
might sustain the rule permitting accountants to practice before that board 
in such cases. Your department has no such rule. Cases before it some- 
times involve questions of accounting, engineering, or rate-making; but 
the usual activity of the engineer, accountant or rate expert is that of a 
witness or adviser, rather than of a counsel conducting the hearing. It 
may be that "practitioners" who are not lawyers have occasionally con- 
ducted hearings before your department, especially its commercial motor 
vehicle division, but I am aware of no rule or custom of your department 
attempting to authorize such action. Even if there were such a rule or 
custom, the language of the Supreme Judicial Court last quoted seems to 
imply that it would be invalid. 

Nor do the practices of various Federal tribunals, in permitting laymen 
to act as counsel before them, alter my opinion that the services rendered 
in this Commonwealth before your department in contested hearings are 
not authorized to be rendered by laymen. The opinion of our Supreme 
Judicial Court in Lowell Bar Assn. v. Loeh, supra, at the bottom of page 
184 and the top of page 185, in 315 Massachusetts, throws doubt upon the 
effect of those practices in matters not legally before such a tribunal, 
though of a class that might come before it. A fortiori they should not 
affect the practices of your tribunal in matters not arising under Federal 
laws, but under the laws of this Commonwealth. 

For all the foregoing reasons, I advise your department not to permit the 
person mentioned in your letter to appear before it as counsel. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 85 

Public Welfare — Schooling for Children in Boarding Homes. 

Mar. 17, 1947. 

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

Dear Sir: — In connection with children of school age who have been 
placed in boarding homes in various towns for the purpose of providing 
such children "with care, food and lodging," as the quoted words are used 
in G. L. (Ter. Ed.) c. 119, § 1, either by the Commonwealth or by their 
parents, you have asked my opinion as to the right of such children to 
attend the public schools of the town in which such a home may be and 
as to who may be liable to pay such a town for tuition. 

Although the Attorney General, following a long line of practice and 
procedure of this department, does not ordinarily render opinions involv- 
ing merely the interpretation of statutes, nevertheless, as the subject 
matter of your request may be directly connected with the duties of your 
department in regard to children placed in boarding homes, I advise you 
in the premises as follows: 

By the provisions of G. L. (Ter. Ed.) c. 76, § 5, it is provided that: 

"Every child shall have a right to attend the public schools of the town 
where he actually resides, subject to the following section ..." 

The following section 6, in its applicable portion reads: 

"If a child resides temporarily in a town other than the legal residence 
of his parent or guardian for the special purpose of there attending school, 
the said town may recover tuition from the parent or guardian . . ." 

It follows that if a child has been brought to reside in a town for the 
special purpose of attending school therein, whether he is in a boarding 
home or not, his parents or his guardian, if he has one in lieu of parents, is 
liable to such town for his tuition. 

If schooling therein was not the special purpose for which he was brought 
to the town, he is entitled to tuition therein, for which his parents are not 
liable. The town where he actually resides in a boarding home may not 
lawfully refuse him tuition in its public schools. 

There is a distinction between the words "actually resides" as used in 
said section 5 and the words "where he has his domicile." 

The person in charge of the boarding home where the child has been 
placed is not liable for his tuition. 

For the tuition of such a child placed in a boarding home in a town other 
than his home town, which would ordinarily be that of his parents' domicile, 
not by his parents but by the Department of Public Welfare, the Com- 
monwealth, by the provisions of section 7 of said chapter 76, is to pay for 
tuition in the town of actual residence at a rate therein set forth. 

I trust that the foregoing expression of my opinion as to the plain mean- 
ing of the relevant statutes will sufficiently assist you in dealing with 
problems relative to tuition of children in boarding homes which may 
come before you or which it may be necessary for you to discuss with 
town authorities. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



86 P.D. 12. 

Department of Conservation — State Ornithologist. 

Mar. 19, 1947. 
Hon. A. K. Sloper, Commissioner of Conservation. 

Dear Sir: — Replying to your letter of March 17, 1947, prior to the 
amendment of G. L. (Ter. Ed.) c. 21, § 7A, by St. 1939, c. 491, § 5, the 
State Ornithologist was appointed and removed by the Director of the 
Division of Fisheries and Game, with the approval of the Commissioner, 
and performed "such duties as the director may from time to time pre- 
scribe." 

By the said amendment of 1939 the provisions of St. 1934, c. 173, 
which carried the quoted phrase in its insertion of section 7A of chapter 21 
in the General Laws, were repealed and a new section 7A adopted which 
still stands in the General Laws and reads : 

"The commissioner may appoint and remove a state ornithologist who 
shall be qualified by training and experience to perform the duties of his 
office. He shall perform such duties as the commissioner may from time 
to time prescribe." 

By this section the State Ornithologist serves under the direction of the 
Commissioner of Conservation and section 7C of said chapter 21, to which 
you refer, does not subject him to the direction of the Director of Wild- 
life Research. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Examiners of Plumbers — Master Plumbers — State Institutions — 
Employment by Corporations. 

Mar. 21, 1947. 
Mrs. Irene K. Richards, Director of Registration. 

Dear Madam : — I acknowledge your recent letter in which you ask 
my opinion on several questions propounded by the Board of Examiners 
of Plumbers. 

Your letter calls attention to the decision of the Supreme Judicial 
Court in the case of Power v. Board of Examiners of Plumbers, 281 Mass. 1. 
That case concerned the employment by the city of Worcester of a master 
plumber at a salary to supervise the installation of plumbing in connec- 
tion with its municipal functions, and one of the questions decided was 
with relation to the place of business of the master plumber, as defined 
by G. L. (Ter. Ed.) c. 142, § 1. It was contended that the City Hall in 
Worcester was not a regular place of business within the meaning of this 
statute. The court said: 

"The requirement that a master plumber shall have a 'regular place of 
business' is satisfied if the applicant for a master plumber's license has a 
place to do the business which he may be called upon to do as a master 
plumber, and that it must not necessarily be available to the public but 
must at all times be certain and not itinerant; that the words 'in his 
employ,' G. L. (Ter. Ed.) c. 142, § 1, are broad enough to cover journey- 
men plumbers who are not employed by him, but under their contracts 
with others are, nevertheless, to be subject to his orders and supervision." 



P.D. 12. 87 

You state that as a result of this opinion the Examiners have appHed 
this opinion "to all manufacturing corporations and concerns" and you 
ask the following questions: 

First: "Is the State Board of Examiners of Plumbers correct in its 
ruling? 

Second: "Can the aforesaid master plumber in the employ of any cor- 
poration conduct and operate a private personal plumbing business legally, 
outside the precincts of the corporation? 

Third: "If the answer to the second question is 'yes' is the State Board 
of Examiners of Plumbers obliged to issue duplicate licenses in order for 
the aforesaid master plumber to conform to G. L. c. 142, § 3." 

In answer to your first question, any corporation which employs a 
master plumber for a salary to maintain, install or superintend its own 
plumbing system cannot be said to be in the plumbing business and would 
be in the same position as the city of Worcester in the Power case above 
cited, and the ruling of the State Board of Examiners in this respect as to 
these corporations, in my opinion, is correct. 

In answer to your second question, a master plumber in the employ of a 
corporation for a salary on a basis similar to that in the Power case above 
cited may legally operate a private personal plumbing business outside 
of his employment by the corporation. There is nothing in G. L. (Ter. Ed.) 
c. 142 to limit the time of a licensed master plumber to his employment for 
a salary by such a corporation. Such a master plumber may, in my opinion, 
conduct a private plumbing business on his own time outside of such 
employment. 

In answer to your third question, if the master plumber employed by 
such a corporation has a private plumbing business of his own outside of 
his employment by the corporation, it is my opinion that the display of 
his master plumber's license at either place conforms with section 3 of 
chapter 142. I see no reason for the issuance of duplicate licenses to be 
posted both at his place of employment by the corporation and at his 
private place of business. 

You cite G. L. (Ter. Ed.) c. 142, § 21, with relation to the formulation 
of rules by the Examiners relative to the construction, alteration, repair 
and inspection of all plumbing work in buildings owned and used by the 
Commonwealth, subject to the approval of the Department of Public 
Health. You state that one of the requirements in these rules is that "per- 
mits shall be issued to licensed or registered master plumbers or such 
licensed or registered journeymen plumbers as are temporarily approved 
by the Board of Examiners." 

You inform me that at a recent meeting of the Examiners of Plumbers 
it was voted to issue permits only to master plumbers in State institutions 
and you ask the following question: 

"Was it necessary to receive the approval of the Department of Public 
Health on this action?" 

Said section 21 has nothing to do with those licensed by the Examiners 
under section 3 of chapter 142 to do the actual plumbing work performed 
in accordance with such rules. The licensing of master and journeymen 
plumbers is the function of the Examiners of Plumbers, and their action 
in carrying out this duty is not subject to the approval of the Department 
of Public Health. It is, therefore, my opinion that it was not necessary 



88 P.D. 12. 

to obtain the approval of the Department of Public Health to the vote of 
the State Examiners of Plumbers to issue permits only to master plumbers 
in State institutions. What this vote really amounted to was that the 
above rule relative to the issuance of permits to do work in State-owned 
buildings was modified so that licensed or registered journeymen plumbers 
would no longer be temporarily approved as proper persons to be issued 
permits. Perhaps a better way of accomplishing this same result would 
have been for the Board of Examiners of Plumbers to vote not to tempo- 
rarily approve licensed or journeymen plumbers to do work in State-owned 
or used buildings. This would be an exact compliance with the very rule 
which was formulated and approved by the Department of Public Health. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Registrar of Motor Vehicles — International Automotive Traffic — Treaty. 

Mar. 25, 1947. 
Mr. Rudolph F. King, Registrar of Motor Vehicles. 

Dear Sir: — You have laid before me the text of the Convention on 
the Regulation of Inter- American Automotive Traffic, which is a treaty 
entered into by the United States with fourteen other American republics 
ratified by the Senate as set forth in a proclamation of the President 
November 1, 1946. 

This treaty by its terms, among other things, permits the use in the 
United States of motor vehicles registered in the American republics of 
origin according to the laws of such countries. The operators of such 
motor vehicles are "subject to the traffic laws and regulations" in force 
in the country in which such vehicles are operating, but operators are to 
be permitted to operate if licensed by their country of origin. Like privi- 
leges are extended to owners of motor vehicles registered in the United 
States and operators licensed therein. Provisions are ma^e for an emblem 
and a certificate to indicate registration in state of origin and for an oper- 
ator's license for the same purpose. 

Treaties of the United States, like the Constitution, are the supreme 
law of the land and where State laws are in conflict with a treaty, the 
treaty must prevail. In re Wyman, 191 Mass. 276. Treaties are not 
infrequently called conventions, as is the present one. Vergnani v. Gui- 
detti, 308 Mass. 450, 457. 

In relation to the effect of the said treaty, you have requested my 
opinion as follows: 

"Your opinion is requested whether, under section 3 of chapter 90, I 
should make such a determination as described above, and whether or 
not the privileges granted by the Convention render inoperative the non- 
resident insurance provisions of said section." 

By virtue of the said treaty you may determine under the provisions 
of G. L. (Ter. Ed.) c. 90, § 3, to which you refer, that the other repubfics 
signatory to the treaty grant privileges of operation unlimited as to length 
of time in the case of motor vehicles duly registered under the laws and 
owned by residents of the Commonwealth. 

Inasmuch as the treaty makes no special provision for the existence of 



P.D. 12. 89 

a policy of liability insurance as necessary to registration or use of a 
motor vehicle, the privileges granted by the treaty render inoperative 
the non-resident insurance provisions set forth in said chapter 90, sec- 
tion 3, with relation to those motor vehicles to which the treaty relates. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Fire Commissioner — Fires in the Open Air — Bonfire — Domestic 

Incinerators. 

Mar. 27, 1947. 
Hon. A. K. Sloper, Commissioner of Conservation. 

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

"Will you kindly pass upon whether the forest fire warden, the chief 
or fire commissioner has the authority in regulating the time when fires 
can be had in outside domestic incinerators? 

"You will note by the attached copy of chapter 269 and underscored 
in red, that part which pertains to the issuing of permits of burning in 
the open. 

"Whether the town officials can construe a fire in an incinerator as an 
open air fire, we are very desirous of knowing." 

Chapter 269 of the Acts of 1945 amended G. L. (Ter. Ed.) c. 48 by 
inserting a new section 13. 

Chapter 269 was an em.ergency act entitled "An Act relative to the 
issuance of permits for open air fires" and in its preamble recited that the 
act related "to certain restrictions on the setting of fires in the open 
air" during April and May. 

It pro\ddes, among other things, that "no person shall set, maintain 
or increase a fire in the open air at any time except by permission, cover- 
ing a period not exceeding five days," granted by certain designated 
officials. It provides penalties for the violation of its provisions. 

Prior to the enactment of St. 1897, c. 254, § 10, from which said sec- 
tion 13 stems, a long series of legislative enactments making it an offense 
to set fires in various designated dangerous places out of doors had always 
referred to such fires as "bonfires." The term "fire in the open air" 
first appears in said statute of 1897, which was entitled "An Act to pro- 
vide for the further protection of trees and the preventing of fires in 
woodlands." 

The word "bonfire" as used in the context of the earlier statutes would 
appear to connote a fire for burning brush, grass or similar objects not 
confined in a small container. 

I am of the opinion that the Legislature employed the words "fire in 
the open air" as used in said statute of 1897 and amendments or substi- 
tutes therefor, including G. L. (Ter. Ed.) c. 48, § 13, in view of their 
context, in the same manner as they had previously used the word "bon- 
fire," having particularly in mind the danger from the spreading of un- 
confined fires. 

I am of the opinion that the words "fire in the open air" as used in said 
section 13 were not intended by the Legislature and consequently do not 
include what is ordinarily meant by "outside domestic incinerators." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



90 P.D. 12. 

State Prison Colony — Chief Medical Officer — Autopsy — Medical 

Examiner. 

Apr. 9, 1947. 
Hon. J. Paul Doyle, Commissioner of Correction. 

Dear Sir: — You have asked my opinion in the following phraseology: 

"I respectfully request your opinion as to whether or not, and how 
soon after death, the chief medical officer of the State Prison Colony 
hospital, if the cause of death cannot be determined, may cause an autopsy 
to be made upon the unclaimed body of a prisoner where consent of the 
next of kin has not been obtained or the provisions of the aforesaid G. L. 
c. 38, § 6, has not been ordered." 

The only authority given to the chief medical officer of the State Prison 
Colony, which colony as a "public institution supported in whole or in 
part at the public expense" is an institution impliedly named in G. L. 
(Ter. Ed.) c. 113, § 1, is that set forth in section 5 of said chapter 113. 
Said section 5 reads: 

"Before surrendering the body of any such person as provided in the 
four preceding sections, the chief medical officer of any institution named 
in section one may, if the cause of the death cannot otherwise be deter- 
mined and if such body is unclaimed by relatives or friends, cause an 
autopsy to be made upon it." 

The four preceding sections provide for surrendering the bodies of 
persons dying in designated public institutions, which bodies are required 
to be buried at public expense, to medical schools upon their request for 
the promotion of anatomical science. The bodies of certain of such per- 
sons are specifically excepted from the foregoing provisions by section 2 
of said chapter 113. It is provided that such medical schools are to take 
the bodies within three days after death and shall not use them for ana- 
tomical purposes until fourteen days after death and then only if such 
bodies still remain unclaimed by kindred or friend. 

Reading these sections together it is apparent that only in cases where 
the provisions of G. L. (Ter. Ed.) c. 38 do not require action by the medi- 
cal examiner of the district and only ivhen the cause of death cannot other- 
wise be determined and the body is unclaimed by relatives or friends and 
is not that of a person mentioned in said section 2, may the chief medical 
officer of the State Prison Colony cause an autopsy to be made upon it. 
Moreover, he must do this within three days after the death, for at the 
close of such period the body must be delivered to a medical school if 
request is made, the requirement of section 1 for delivery to such a school 
upon request being mandatory (II Op. Atty. Gen. 1; see 1937 Op. Atty. 
Gen. 87, 88; Opinion of Attorney General to State Board of Insanity, 
Feb. 1, 1916). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 91 

Logan Airport — Authority of Police. 

Apr. 15, 1947. 
Hon. Thomas F. Sullivan, Police Commissioner. 

Dear Sir: — I am in receipt from you of a request for an opinion upon 
certain questions relative to the authority of the pohce department of 
the city of Boston to pohce the Logan International Airport. 

As has been said in a long line of opinions of my predecessors in office, 
it is not the duty of the Attorney General to render opinions to the Police 
Commissioner upon all questions of law which may arise in the course of 
the latter 's performance of his duties, but the subject matter of your 
present inquiries is of such a nature, relating as it does to land of the 
Commonwealth, that I deem it proper to advise you upon the questions 
which you have asked, which read as follows: 

"1. Does the primary responsibility for policing the Logan Interna- 
tional Airport rest upon the Commonwealth of Massachusetts? 

"2. Has the Boston Police Department concurrent jurisdiction in the 
policing of this State-owned property? 

"3. The Logan International Airport, including what was formerly 
Governor's Island and Apple Island, being part of the City of Boston, 
may the Boston Police Department properly include this area within the 
boundaries of Police Division Seven, or the East Boston Police District? " 

I answer your first question in the affirmative and the last two in the 
negative. 

The Logan International Airport is built upon land owned by the 
Commonwealth and is exclusively within its control (1942-4 Op. Atty. 
Gen. 47). 

Land acquired by the Commonwealth is not generally subject to control 
by municipal police departments. When such control is deemed desirable, 
specific legislative authority to exercise it is granted by the General Court 
(see G. L. (Ter. Ed.) c. 81, §§ 11, 19). Lands such as reservations, parks 
and boulevards of the Commonwealth placed by the Legislature under 
the control of a State agency or authority are not subject to entry or con- 
trol by municipal police except for such purposes as may have been specif- 
ically granted to such police by statutory provisions. II Op. Atty. Gen. 
363, 454. 

Such a State agency or authority has been created by the Legislature 
for the Logan International Airport and empowered by it to maintain and 
operate the airport, which is owned by the Commonwealth itself. This 
agency or authority is the "bureau for the maintenance and operation 
of said airport" established by the Commissioner of Public Works (St. 
1941, c. 695, § 14, as amended by St. 1946, c. 583, § 5). As regards the said 
airport, such agency or authority alone has jurisdiction to police it, even 
if the airport is within the limits of the city of Boston, and the police 
department of Boston does not have concurrent jurisdiction in this respect 
and the department may not properly for any purposes of police super- 
vision or control include said airport in Police Division Seven or the East 
Boston Police District. 

The police of the city of Boston are confined in their authority as regards 
the said airport to the pursuit and apprehension of persons who have 
committed a breach of any statute, ordinance or regulation within the 
city of Boston outside the airport and have taken refuge in the said air- 



92 P.D. 12. 

port, and they have no authority to enter said airport for the purpose of 
maintaining peace and order therein except at the request of said bureau 
established for the maintenance and operation of the airport as aforesaid 
(see II Op. Atty. Gen. 454; 1942-4 Op. Atty. Gen. 47, 48; Teasdale v. 
Newell, etc., Co., 192 Mass. 440). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Use of Arms or Great Seal of the Commonwealth. 

Apr. 16, 1947. 
Port of Boston Authority. 

Gentlemen : — You have submitted to me various designs for an 
"insignia for the Port" and have asked my opinion as to whether their 
use by the said Authority would be unlawful. 

I am of the opinion that the use of any of the designs which you have 
submitted would not be unlawful if used by the said Authority. 

Each contains what purports to be a representation of the arms or the 
great seal of the Commonwealth. The use of any representation of the 
arms or the great seal of the Commonwealth "for any advertising or 
commercial purpose" is made a penal offense by G. L. (Ter. Ed.) c. 264, 
§ 5, as amended. 

A use of the arms or great seal by a board established as an agency 
of the Commonwealth, as was your board by G. L. (Ter. Ed.) c. 6, as 
amended by St. 1945, c. 619 and by G. L. (Ter. Ed.) c. 91A, for its own 
purposes is not a use for "advertising or commercial purposes" as those 
words are employed in said chapter 264, section 5. Such use is rather for 
a governmental purpose. 

In your letter you speak of your intention to use this insignia "in ad- 
vertising." I assume that by the use of the quoted words you mean only 
a use in connection with promoting the Port of Boston as such and not in 
aid of any private interests. This being so, I see no objection as a matter 
of law to your use of any of the designs showing a representation of the 
arms or great seal which you have exhibited to me. 

A somewhat similar use of the seal to that which I gather from your 
letter you propose to make was held to be lawful when employed by the 
Division of Savings Bank Life Insurance. (See Opinion of Attorney Gen- 
eral to the Governor, November 2, 1925.) 

I see no objection as a matter of law to your describing the Port Au- 
thority on the said insignia as "An Agency of the Commonwealth," nor 
to your employing such insignia as you refer to in your communication as 
a device upon your letter paper. 

Although it is not a duty of the Attorney General to pass upon the 
"propriety" of the designs for the insignia, yet since you have asked me, 
let me say that the largest of the four designs laid before me, having what 
purports to be a representation of the arms or seal of the Commonwealth 
in the center, appears to me the most appropriate and suitable for the 
purposes for which it is intended. 

I return herewith the various designs which you sent me. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 93 

Public Utilities — Guided Trips in Boston for School Children — Sight- 
seeing Automobiles — Busses. 

Apr. 21, 1947. 
Commissioners of Public Utilities. 

Gentlemen : — In a recent letter you have asked my opinion as to whether 
the execution of a plan called "Education on Wheels," involving the fur- 
nishing for school children of guided trips in Boston by motor bus for the 
purpose of seeing and visiting places presumably of historical and civic 
interest, for a consideration paid b}^ each child for each trip, is such as to 
require that the motor vehicle so used be licensed by the Police Commis- 
sioner of Boston and that there be obtained from you a certificate of 
public necessity and convenience under the provisions of St. 1931, c. 399, 
as amended by St. 1933, c. 93. 

The pertinent provisions of the said statute provide : 

"Section 1. The term 'sight-seeing automobile,' as used in this act, 
shall mean an automobile, as defined in section one of chapter ninety of 
the General Laws, used for the carrying for a consideration of persons for 
sight-seeing purposes in or from the city of Boston and in or on which 
automobile guide service by the driver or other person is offered or fur- 
nished. 

"Section 2. It shall be unlawful for a person or a corporation to offer 
or furnish service by a sight-seeing automobile in or from the city of Boston 
unless said automobile is first licensed hereunder and unless thereafter a 
certificate of public convenience and necessity is obtained as hereinafter 
provided, and it shall be unlawful for a person to operate such an auto- 
mobile as driver in or from said city unless he is licensed so to do as herein- 
after provided." 

Sections 3 and 4 provide that the Police Commissioner of Boston shall 
have exclusive authority to issue licenses to sight-seeing automobiles and 
persons driving them and to designate stands for them on the public ways, 
and section 5 requires that one offering or furnishing such sight-seeing serv- 
ice by automobiles must obtain from the Department of Public Utilities 
a certificate of public convenience and necessity. Furnishing such service 
in Boston without a license and a certificate is a penal offense. 

Just what the plan in question consists of and just what its mode of 
operation is proposed to be are questions of fact. The Attorney General 
does not pass upon questions of fact. " 

You have submitted to me, however, certain letters and copies of docu- 
ments relating to such plan and its proposed operation, from which it 
would appear that the plan in question is to be operated as follows: 

Superintendents of school are to make contracts with a certain person 
doing business under the name of "Education on Wheels," by which such 
person agrees to act as the agent of a contracting superintendent and as 
such to charter motor busses for carrying school children on trips, to pro- 
vide instruction en route by an instructor or leader, to provide meals, to 
arrange an itinerary, to pay all expenses of any trip and to collect a desig- 
nated sum from each student on a trip, the total of such sums to reimburse 
for expenses paid and the balance to be the agent's compensation. 

Assuming that the facts are substantially as I have set them forth, the 
arrangement made with "Education on Wheels" will result in the furnish- 
ing of "sight-seeing" automobiles and accordingly such automobiles when 



94 P.D. 12. 

operated in Boston must, as the Police Commissioner has previously ruled, 
be licensed by him and the driver likewise be licensed, and a certificate of 
convenience and necessity must be procured from your department. 

The facts as they are to be gathered from the data which you have 
submitted to me indicate that the automobiles are to be furnished under 
the said plan for "sight-seeing" purposes. The fact that their use is limited 
to school children and that the trips have educational value does not de- 
tract from the essential "sight-seeing" which is a dominant characteristic 
of such use and does not differ materially in this respect from the charac- 
teristic use of automobiles ordinarily termed "sight-seeing." 

There are uses of busses for the transportation of children between places 
which do not fall within the meaning of a "trip" or "trips" as I have 
employed those words in the foregoing paragraphs and which do not 
bring the vehicles so used within the category of "sight-seeing automo- 
biles"; such as the transportation of children to or from school or church, 
or over the route of licensed common carriers of passengers or in a special 
or chartered bus operated under the provisions of G. L. (Ter. Ed.) c. 159A, 
§ llA. That the Legislature regarded "sight-seeing automobiles" as in a 
distinct and different class from special or chartered busses as such is 
made plain by the phraseology of said section 11 A. My opinion is confined 
to a consideration of the mode and purpose of the class of transportation 
which, upon such facts as I have before me, appears to be offered by 
"Education on Wheels." 

If it is desired that service such as is offered by "Education on Wheels" 
be excepted from the provisions of said St. 1931, c. 399, as amended, 
resort should be had to the Legislature. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Settlement of Veteran's Dependents. 

Apr. 22, 1947. 

Hon. Francis X. Cotter, Commissioner of Veterans' Services. 

Dear Sir : — You have asked my opinion with regard to the payment 
of veterans' benefits under G. L. (Ter. Ed.) c. 115, § 5, as amended. 

The Attorney General does not pass upon questions of fact. From such 
circumstances as you have set forth it would appear that the veteran about 
whom you inquire established a residence in Quincy on or about January 
23, 1943. You state that he had no settlement in the Commonwealth. 
It would seem from what you have stated that absences from Quincy since 
January 23, 1943 by the veteran were not of such a character as to indicate 
that he ceased to maintain a residence in that city, where you state he is 
now living. If this is so, he had had a residence in Quincy continuously 
for three years last past and would now be entitled to veterans' benefits, 
other matters being such as to warrant their payment under G. L. (Ter. Ed.) 
c. 115. 

By virtue of his three years of residence, his dependents are likewise 
entitled to such benefits. 

You do not so state but I assume from other facts set forth in your letter 
that the veteran's wife has a settlement in Quincy which she has retained, 
since from what you have stated it would appear that the husband has 
never acquired a settlement in Massachusetts. Under such circumstances 



P.D. 12. 95 

the veteran's dependents, who appear to be a wife and child, have a settle- 
ment in Quincy and under the provisions of G. L. (Ter. Ed.) e. 115, § 6, 
as amended, one-half the amount of veterans' benefits paid to the depend- 
ents should be reimbursed to Quincy by the Commonwealth and the full 
amount paid to the veteran, as an unsettled person, should be so reim- 
bursed. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Fireman — Death — Medical Panel. 

Apr. 28, 1947. 

Joint Legislative Committee on Pensions and Old Age Assistance. 

Gentlemen : — I am in receipt from you, in connection with a certain 
bill which is before your committee, of the following request for my opinion : 

"Whether or not under G. L. c. 32, § 89, a medical panel having reported 
that the death of a former member of the Springfield Fire Department 
was not an approximate result of a certain accident, it is legally possible 
for the city government to reopen the case and request an opinion by 
another medical panel." 

I am of the opinion that the intent of the Legislature as it appears from 
the context of said G. L. (Ter. Ed.) c. 32, § 89, as amended, was not to 
authorize the filing of applications for annuities under said section 89 if 
an original application had been received, a board appointed under the 
provisions of said section 89 to pass upon the question of whether the death 
of the employee to whom the application referred was the natural and 
proximate result of an accident or hazard sustained during employment, 
and said board had found that such death was 7iot the natural and proxi- 
mate result of such an accident or hazard. 

If the Legislature had intended that more than one application might 
be filed and new determinations of different boards be obtained upon the 
same subject matter, it would undoubtedly have so stated. 

In the absence of such a plain statement the said section 89 cannot by 
implication be construed as permitting repeated applications and repeated 
determinations, a process which might go on indefinitely until the appli- 
cant finally succeeded in obtaining a favorable decision from some board. 

Very truly yours, 

Clarence A, Barnes, Attorney General. 



Constitutional Law — Interference vnth Federal Operations by the Exercise 
of the State's Police Power. 

Apr. 30, 1947. 
House Committee on Bills in the Third Reading. 

Gentlemen : — You have asked my opinion as to whether Senate Bill 
256, entitled "An Act further regulating the powers of the Department of 
Public Health relative to the protection of the public health," if enacted 
into law would be constitutional. 

I am of the opinion that it would not be constitutional. 



96 P.D. 12. 

The proposed bill reads: 

"Section 17 of chapter 111 of the General Laws, as most recently amended 
by chapter 340 of the acts of 1937, is hereby further amended by adding 
at the end the following paragraph : — 

"The construction, arrangement and operation of dams, dikes, ditches, 
flumes, spillways and other like works within the commonwealth by the 
United States affecting the drainage of territory within the commonwealth 
shall be subject to the approval of the department and the department 
may require such changes therein as in its judgment are necessary for the 
protection of the public health." 

The provisions of the bill are of general application in relation to all 
actions of the United States in constructing or operating the indicated 
types of work within the Commonwealth. 

It applies to works undertaken by the United States in fields as to which 
the United States has paramount authority, such as its jurisdiction over 
navigable waters or flood control, as well as many others, and as to all 
these it seeks to limit the exercise of the power of the Federal Government 
by limiting its operation in matters which may well be essential to the 
proper exercise of such power by requirements of a State department. A 
practical veto power by the Department of Public Health over operations 
of the United States purports to be given. 

The exercise of this power by the said State department would obviously 
contravene or materially affect the essential purpose expressed by many 
Congressional acts and limit the effective operation of the Federal Gov- 
ernment in matters as to which it has paramount and complete jurisdic- 
tion. Sturges v. Crowninshield, 4 Wheat. (U. S.) 122, 193. 

In matters as to which the United States has no jurisdiction the bill, 
of course, can serve no useful purpose, for as to those the United States 
may not engage in the operations mentioned in the bill with or without 
the approval of the State department. 

It has been held that the United States may perform its functions with- 
out conforming to the police regulations of a State, and that if Congress 
has power to authorize the construction of a dam its agents are under no 
obligation to submit the plans to the State engineer for approval, as re- 
quired by the State statute. Arizona v. California, 283 U. S. 423, 451, 452. 

"The activities of the Federal Government are free from regulation by 
any state." Mayo v. United States, 319 U. S. 441. 

The bill does not purport to exercise the police power of the State in 
regard to matters merely incidental to the exercise of activities within 
Federal jurisdiction or to such as are not included within the scope of such 
jurisdiction. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Public Safety — Keeping or Storing of Compressed Air — Certificate. 

May 19, 1947. 
Hon. John F. Stokes, Commissioner of Public Safety. 

Dear Sir: — You have asked me the following question: 
Does a tank or receptacle which is intermittently filled with oil and 
compressed air come within the provisions of G. L. c. 146, § 34, so that it 



P.D. 12. 97 

should be classified as a tank or other receptacle for the storing of com- 
pressed air and therefore require a certificate of inspection issued by the 
Division of Inspection of the Department of Public Safety? 

The answer to this question depends upon the construction to be given 
to the word "storing" as used in this statute. 

St. 1913, c. 399, §§ 1, 7, and St. 1914, c. 649, § 1, from which the present 
statute stems, prohibited the installation or use of a tank or other receptacle 
for the "keeping or storing" of compressed air at any pressure exceeding 
fifty pounds per square inch unless a certificate of inspection was issued, 
etc. 

The phrase ''keeping or storing" was shortened by the compilers of the 
General Laws of 1932 by omitting the words "keeping or." Such a change 
made in the compilation of the existing statutes does not indicate a legis- 
lative intention to employ the word "storing" as if it did not include the 
meaning of the word "keeping" and to so work a change in the intent of 
the statute. 

"It is a familiar principle of statutory construction that mere verbal 
changes in the revision of a statute do not alter its meaning and are con- 
strued as a continuation of the previous law." 

Arthur A. Johnson Corp. v. Commonwealth, 306 Mass. 347, 353. 

So construed in the light of the earlier acts, the present statute (G. L, 
(Ter. Ed.) c. 146, § 34) would seem to include a tank of the description 
mentioned in your letter, and I accordingly advise that such a tank or 
receptacle requires a certificate of inspection issued by the Division of 
Inspection of the Department of Public Safety. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Commissioner of Conservation — Power to Lease Land — Permits. 

May 26, 1947. 
Hon. A, K. Sloper, Commissioner of Conservation. 

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

"Is it permissible for me as Commissioner of Conservation to grant a 
lease for a concession to run for a term of more than one year? If so, 
what is the maximum term for which a lease can be given? 

"The matter has come up of a boat livery concession at Salisbury 
Beach and it will require considerable capital investment on the part of 
the lessee and he feels that the amount necessary to make the proposition 
operative, a term of years must be had to bear the capital investment." 

I am not aware of any authority vested in the Commissioner of Con- 
servation to lease land of the Commonwealth in a State park or reserva- 
tion for a "concession," so called. 

I have been informed that "permits" were issued for boat leasing con- 
cessions at Salisbury Beach reservation, and this may be done by you 
under G. L. (Ter. Ed.) c. 132A, § 7. 

If the rules and regulations which you have made under said section 7 
do not limit the term for which such a permit may be issued, it may be 



98 P.D. 12. 

issued for such term of years as in your judgment appears to be reason- 
able in view of the nature of the concession and what the concessionaire 
must do to make it operative. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Public Works — Lease of Province Lands. 

June 9, 1947. 

Hon. William H. Buracker, Commissioner of Public Works. 

Dear Sir : — I am in receipt of your request for my opinion as to 
whether the Department of Public Works can lease approximately 375 
acres of the Province Lands at Provincetown to that town for twenty 
years for use as an airport. 

G. L. (Ter. Ed.) c. 91, section 2, provides in part as follows: 

"The department" (of public works) "shall, except as otherwise pro- 
vided, have charge of the lands, rights in lands, flats, shores and rights 
in tide waters belonging to the commonwealth, and shall, as far as practi- 
cable, ascertain the location, extent and description of such lands; in- 
vestigate the title of the commonwealth thereto; ascertain what parts 
thereof have been granted by the commonwealth; the conditions, if any, 
on which such grants were made, and whether said conditions have been 
complied with; what portions have been encroached or trespassed on, 
and the rights and remedies of the commonwealth relative thereto; pre- 
vent further encroachments and trespasses; ascertain what portions of 
such lands may be leased, sold or improved with benefit to the common- 
wealth, and without injury to navigation or to the rights of riparian own- 
ers; and may lease the same ... all leases for more than five years 
. . . shall be subject to the approval of the governor and council." 

By section 25 of the said chapter 91, general supervision of so much of 
the Province Lands at Provincetown as lies north and west of a certain 
line described in said section 25 is given to the Department of Pubhc 
Works; and by section 26 of the said chapter 91 all of the Province Lands 
lying east and south of that certain line described in section 25 are with- 
drawn from the sweep of said section 2 of said chapter 91, and from that 
of other enumerated provisions of law nor here pertinent. 

It is plain from section 2 and from the provision of section 26 that sec- 
tion 2 does not apply to that portion of the Province Lands lying east and 
south of the demarcation line established by section 25, but that the 
authority given to the Department of Public Works by section 2 extends 
to the Province Lands committed to its general supervision, namely: 
those north and west of said certain line. (See Opinion of the Attorney 
General to the Board of Harbor and Land Commissioners, Nov. 15, 1915.) 

The specific authority to lease is found in the last five words of the first 
sentence of section 2, "and may lease the same." No limit of time or pur- 
pose of such leasing is established, though it is interesting to note that 
R. L. c. 96, 3, the earlier statute from which G. L. c. 91, § 2, is derived, 
provided a time hmit "not exceeding five years" for any lease. This five- 
year limitation on the term of a lease was dropped in G. L. c. 91, § 2, and 
the former provision of R. L. c. 96, § 3, requiring all leases to be submitted 



P.D. 12. 99 

for the approval of the Governor and Council has been changed by said 
section 2 so as to require that only those leases for more than five years 
shall be submitted for such approval. 

From the letters you enclosed with your request, I note that the Mas- 
sachusetts Aeronautics Commission has approved the site requested, thus 
satisfying the requirements of G. L. (Ter. Ed.) c. 90, § 39B. Furthermore, 
it is perfectly clear from G. L. (Ter. Ed.) c. 90, § 5 ID, that a city or town 
may establish, maintain and operate an airport. 

Accordingly, I advise you that if the proposed area to be leased lies in 
the Province Lands north and west of the line established by said chapter 
91, section 25, the Department of Public Works has the authority to lease 
the same to the town of Provincetown for a term of twenty years for use 
as an airport, subject to the approval of the Governor and Council. 

The papers which accompanied your letter are herewith returned as 
requested. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Commissioner of Conservation — Power to Take Land under St. 1946, c. 510. 

June 11, 1947. 
Hon. A. K. Sloper, Commissioner of Conservation. 

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

"Reference is made to St. 1946, c. 510. 

"Information from some of the owners having property within the 
areas described in the act is sufficient to determine that all of the property 
the act describes cannot be purchased for the appropriation stated. 

"Will you please advise me whether or not a portion of the property 
can be acquired if, in my opinion, the acquisitions are desirable to make in 
the public interest." 

St. 1946, c. 510, authorizes the Commissioner of Conservation on behalf 
of the Commonwealth to take by eminent domain or to acquire by pur- 
chase at a total cost of not more than $38,000 approximately one hundred 
acres of land in Oak Bluffs and Edgartown specifically described by metes 
and bounds. 

The extent to which property shall be taken or purchased for public 
use rests wholly in the legislative discretion. The Legislature may deter- 
mine the amount of land to be taken or purchased and its location. If- 
may delegate the authority to take or purchase to public officers, and when 
the Legislature specifically determines and describes the location to be 
taken or purchased such public officers are not vested with discretion to 
acquire any property but that specifically described by the Legislature. 

I am advised that the one hundred acres authorized by the Legislature 
to be taken under St. 1946, c. 510, are a continuous strip of land on the 
waterfront comprising contiguous or nearly contiguous parcels of different 
ownership. 

The acquisition of the entire strip on the waterfront appears to be an 
integral part of a plan incident to a public purpose for which the acquisition 
by taking or purchase for a specified sum was authorized, which plan might 
be defeated by the purchase of separated parcels or of insufficient parcels 



100 P.D. 12. 

to make up the entire strip when, as you state, the entire strip cannot be 
acquired for the Hmited compensation authorized by the statute. 

This being so, it would appear that no imphed intent on the part of the 
Legislature to authorize the acquisition only of some individual parcels 
within the designated strip, without the acquisition of the entire strip, 
can be gathered from the context of said St. 1946, c. 510. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Outdoor Advertising — Permits — Renewal — Inspection Fees. 

June 18, 1947. 
Outdoor Advertising Authority. 

Gentlemen : — In a recent letter you have informed me that renewal 
applications for licenses or permits for billboards or signs for the period 
from June 30, 1946, to June 30, 1947, were filed with the Department of 
Public Works by various persons engaged in the business of outdoor ad- 
vertising thirty days prior to June 30, 1946, and were accompanied by the 
fee of two dollars, called the renewal fee, all as required by the rules of the 
said department then in force. The rules of said department for the con- 
trol of billboards, etc., at that time contained a regulation that upon the 
actual issuance of a license or permit for a billboard or sign an additional 
fee of one dollar should be paid. This latter fee was called a "renewal 
inspection fee." These rules were made under authority of G. L. (Ter. 
Ed.) c. 93, § 29. 

No action was taken upon these applications by the Department of 
Public Works. 

On September 13, 1946, your board, which was created under the terms 
of St. 1946, c. 612, took over the powers and duties of the Department of 
Public Works with relation to outdoor advertising signs as set forth in 
G. L. (Ter. Ed.), c. 93, §§ 29, 30, by virtue of the provisions of said St. 1946, 
c. 612. 

Section 6 of said chapter 612 provided that the rules for the control of 
billboards and signs previously adopted by the Department of Public 
Works should remain in force until superseded by others made by your 
board. 

On March 4, 1947, your board promulgated new rules which repealed 
and superseded the old rules made by the said department. The new rules 
so made by you increased the additional fee previously called "the renewal 
inspection fee" from one to two dollars with relation to each sign of a cer- 
tain size. 

Prior to March 4, 1947, no action had been taken on the pending applica- 
tions for permits or licenses for billboards and signs. After the making of 
the new rules on that date such permits or licenses were issued and you 
now ask me whether the permittees or licensees can be required to pay the 
increased smn of two dollars for the "additional" or "inspection fee" 
upon those signs of a size to which it relates. 

I am of the opinion that they can be required to pay such increased fee, 
which is a dollar larger than the fee called for by the old rules. 

Rules and regulations, like statutes, are not necessarily invalid because 
they have a retrospective aspect unless some vested right is impaired by 



P.D. 12. 101 

their force. No one acquires a vested right to obtain a permit or license 
for a particular fee by making application for such permit or license. It 
follows that the fee for a license may be increased after application, if 
before issuance. 

Very truly yours, 

Clarexce a. Barnes, Attorney General. 



Armories — Non-military Use — Public Parking. 

June 19, 1947. 

Brig. Gen. William H. Harrison, Jr., Adjutant General. 
Dear Sir: — I am in receipt from you of the following letter: 

"1. Information is requested as to whether this department has au- 
thority to permit the use of land, owned by the Commonwealth of Massa- 
chusetts, as a public parking lot, and as to the responsibilities and liabilities 
of the department in connection therewith. 

"2, This request is occasioned by letters from the Police Commissioner 
of the City of Boston, and the Chairman, Board of Selectmen, Town of 
Brookline (copies of letters attached), requesting that land at the Com- 
monwealth Armory, Allston, be opened for public parking during ball 
games at Braves Field." 

In view of the provisions of G. L. (Ter. Ed.) c. 33, as amended, with 
relation to the use of armories, which by necessary implication includes 
land devoted to armory purposes, and the absence from the statutes of 
specific provisions giving your department power to employ lands which 
the Commonwealth holds for armory or other military purposes as public 
parking lots, I must advise you that you have no authority to permit the 
use of such land for public parking. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — Tree Warden and Moth Superintendent in Haverhill — ■ 

"Principal Department." 

June 23, 1947. 

Mr. Thomas J. Greehan, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether the position 
of tree warden and moth superintendent of the city of Haverhill is subject 
to the Civil Service Law and Rules. 

You inform me that it has been the view of your division that such 
position was mthin the sweep of the Civil Service Law and it has been 
treated as being subject thereto since 1922. 

I am of the opinion that the view taken by your division is correct 
and that the position in question is subject to the provisions of G. L. 
(Ter. Ed.) c. 31, as amended, and the rule made thereunder. 

From the facts of which I am advised it would appear that the only 
ground upon which it is suggested that such position is not subject to 



102 P.D. 12. 

civil service is that the incumbent is the head "of a principal depart- 
ment ... of a city" and so specifically excluded from subjection to the 
Civil Service Law by the provisions of G. L. (Ter. Ed.) c. 31, § 5, as 
amended. 

While it is by no means plain that the position in question is that of a 
head of any city department, it is clear that it is not that of a head "of a 
^principal department" of the city of Haverhill. 

The departments of the city of Haverhill are created by its ordinances. 
There are five separate departments created by Ordinance 97 of the said 
ordinances, to wit : 

(a) Department of Finances and Accounts. 

(6) Department of Highways. 

(c) Department of Public Safety. 

{d) Department of Public Property. 

(e) Department of Health and Charities. 

These five departments are referred to in Ordinance 98 as "the several 
main departments," and I am of the opinion that as a matter of law these 
five and no others are the "principal" departments of the said city as 
the word "principal" is used in said chapter 31, section 5. Under said 
Ordinance 98 "sub-departments of administration" are created and as- 
signed to the service of the "main departments." Under the heading 
"Department of Public Property" five such sub-departments are assigned 
by said Ordinance 98, among which is "(d) Shade Trees and Moth Ex- 
termination." It is in this last-named sub-department that the position 
in question exists. 

By Ordinance 95 it is provided that one member of the municipal 
council at a time shall act in rotation, subject to a general power of over- 
sight in the council," as head of the department assigned to his charge 
and be known as the Commissioner of such department." 

The duties of the position in question are set forth in chapter 19 of the 
said ordinances. It is by no means plain from an examination of them 
as set forth in said chapter 19 that the position in question could fairly 
be said to be the "head" of even the "sub-department" of "Shade Trees 
and Moth Extermination" in the main or principal Department of Public 
Property. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Public Welfare — Old Age Assistance — Ownership of Real Estate — Bond 

and Mortgage. 

June 24, 1947. 

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

Dear Sir: — In a recent letter you have asked my opinion upon two 
questions relative to old age assistance. 

1. With relation to your first question you have informed me of the 
following facts: 

"Applicant applied for Old Age Assistance on October 25, 1943. Assist- 
ance has been granted continuously since that time. At the time of 
application, applicant had no ownership in real estate. In 1946, as de- 



P.D. 12. 103 

visee under the will of her late sister, this applicant became the owner of 
property on which she has resided continuously since first applying for 
Old Age Assistance. The property was bequeathed to this recipient free 
of encumbrances and is now assessed, and has been assessed for more 
than five vears prior to the date of acquisition bv this recipient, in the 
amount of S4200." 

Upon these facts j-ou have asked my opinion : 

"as to whether or not the Board of Public Welfare in Fall River may 
require a bond and mortgage, as provided in section 4 of chapter 118A, 
as a condition of continuing assistance under this law." 

As the person to whom you refer is, from the facts which you have 
stated, the owner in fee of a parcel of real estate, the provisions of G. L. 
(Ter. Ed.) c. 118A, § 4, have no relation to her. The provisions of said 
section 4 relate only to the ownership of ^' an equity in vacant land or in 
real estate upon which an applicant lives." 

"Ownership of an equity in land" describes the rights in land of a 
mortgagor whose title may be termed an equitable one. It has no appli- 
cation to ownership in fee without encumbrance. 

2. As to those persons who seek old age assistance and have come into 
ownership of an equitable title to land through the death of a joint tenant 
therein or the conclusion of a tenancy by the entirety, a grant of assistance 
to them comes within the provisions of said G. L. (Ter. Ed.) c. 118A, § 4, 
and a bond and mortgage may be required under the terms of said section 
as a condition of receiving old age assistance. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Schools — Superintendency Union — ■ " Valuatio7i" of a Town as Used in 
G. L. (Ter. Ed.) c.71,^61. 

June 26, 1947. 

Hon. John J. Desmond, Jr., Commissioner oj Education. 

Dear Sir: — In connection with your duties relative to the union of 
towns for employment of a superintendent, you have asked my opinion 
as follows: 

"Does the word 'valuation' used in G. L., c. 71, § 61, refer to 'local 
valuation' or the so-called 'apportioned valuation'?" 

G. L. (Ter. Ed.) c. 71, § 61, reads: 

"The school committees of two or more towns, each having a valuation 
less than two million five hundred thousand dollars, and having an aggre- 
gate maximum of seventy-five, and an aggregate minimum of twenty- 
five, schools and committees of four or more such towns, having said 
maximum but irrespective of said minimum, shall form a union for em- 
ploying a superintendent of schools. A town whose valuation exceeds said 
amount, may participate in such a union but otherwise subject to this 
section. Such a union shall not be dissolved except by vote of the school 
conmiittees representing a majority of the participating towns with the 



104 , P.D. 12. 

consent of the department, nor by reason of any change in valuation or 
the number of schools." 

The word "valuation" is defined in G. L. (Ter. Ed.) c. 4, § 7 (35), as 
follows : 

"In construing statutes the following words shall have the meanings 
herein given, unless a contrary intention clearly appears. 

" ' Valuation.' 'Valuation,' as applied to a town, shall mean the valua- 
tion of such town as determined by the last preceding apportionment 
made for the purposes of the state tax." 

Provisions for valuation of towns by a State officer in connection with 
the apportionment of the State tax were enacted in 1881 by chapter 163 
of that year. Said chapter 71, section 61, in which the word "valuation" 
is used, stems from St. 1888, c. 432; it is to be assumed that the Legisla- 
ture acted with full knowledge of the mode of establishing valuations of 
towns by the State under earlier acts. St. 1888, c. 432, contains no specific 
reference to a valuation made by local assessors, nor do any of the amend- 
ments subsequently passed. 

Said chapter 71, section 61, has been amended since the definition of 
"valuation" in said chapter 4, section 7, was enacted (see St. 1926, c. 313) 
and no language was employed by the Legislature in the amendments in- 
dicating an intent that the word "valuation" should have a meaning con- 
trary to that set forth in said chapter 4, section 7 (35). 

There is nothing in the specific phraseology or in the content of said 
chapter 71, section 61, which indicates a legislative intent that local valua- 
tion instead of the valuation described in the definition should be indicated 
by the word "valuation" therein. Indeed, it would seem that the use of 
the word "valuation" with the statutory definition creates an unvarying 
and uniform standard for determining the valuation of towns for school 
union purposes and reflects the worth of all the town's property, not 
merely the property subject to local assessment and taxation, as to which 
methods of assessment often vary as between local boards of assessors. 

It is apparent from the foregoing considerations that an intention to 
give to the word "valuation" in said chapter 71, section 61, a meaning 
contrary to that set forth in the statutory definition cannot be said to 
have been in the mind of the Legislature. 

Accordingly, I answer your question to the effect that the word "valua- 
tion" in G. L. (Ter. Ed.) c. 71, § 61, refers to the so-called "apportioned 
valuation." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 105 



INDEX TO OPINIONS 



PAGE 

Absence, militant leave of, payments for employee on; step-rate increments; 

retirement system 53 

Agriculture, Department of; soil conservation; committee; districts; scope 

of authority; supervisors 23 

Air carriers; regulations; certificates of convenience 29 

Appeals; Department of Public Works; Registrar of Motor Vehicles; au- 
thority of each 11 

Armory; non-militar>' use; lease 71 

Local committee of a political or municipal party 61 

Public parking 101 

Rules; permit; inspection 78 

Arms or Great Seal of the Commonwealth, use of 92 

Attorneys-at-law; hearings; Department of Public Utihties . .81 

Autopsy; medical examiner; chief medical officer; State Prison Colony . 90 

Billboards ; permits ; renewal ; inspection fees 100 

Boarding homes, schooling for children in; public welfare .... 85 

Bonfire; fires in the open air; domestic incinerators; fire commissioner . 89 
"Bonus", veterans': 

Application of under St. 1945, c. 731 18 

AppUcation of under St. 1946, c. 581 19 

Boston, business manager in public schools of; civil service . .41 
Reimbursement of city of, under G. L. (Ter. Ed.) c. 32, § 20 (2) (c); re- 
tirement; teachers' pensions 28 

Boston Elevated Railway, scope of authority with regard to fares on; Gov- 
ernor 58 

Boston police officers; veteran; retirement under G. L. (Ter. Ed.) c. 32, 

§§ 56, 57 16 

Bridge employees, transfer of from municipal service to that of the Common- 
wealth; Department of PubUc Works 52 

Bridges; Department of Public Works; public hearings; State highways 14 

Chicopee, city messenger of; civU service; officer; city council ... 40 
Civil service : 

Authority to promote in Watertown Fire Department 43 

Business manager in public schools of Boston; St. 1946, c. 497 ... 41 

City Messenger of Chicopee; officer; city council 40 

MiUtary leave of absence; promotional examinations 22 

Promotions; seniority 25 

Reasons of appointing authority for not selecting the first person on an 

ehgible list; G. L. (Ter. Ed.) c. 31, § 15, par. C . . . . .72 
Transfers; change in employment from Park to Sewerage Division of 

Metropolitan District Commission 24 

Tree warden and moth superintendent in Haverhill; "principal depart- 
ment" 101 

Collegiate Authority, Board of, approval by ; procedure 55 

Compressed air; keeping or storing of ; public safety; certificate ... 96 
Conservation, Commissioner of: 

Power to lease land ; permits 97 

Power to take land under St. 1946, o. 510 99 

Scope of authority ; powers of removal 45 

State Ornithologist 86 



106 P.D. 12. 

PAGE 

Constitutional law : 

Federal funds in grant 

Group life insurance for municipal employees 

Interference with Federal operations by the exercise of the State's police 

power 

Lowell Textile Institute ; Building Association ; St. 1946, c. 428 . 
State agency to administer Federal program ; school luncheons 

Corporations, employment of master plumbers by; State institutions; Ex- 
aminers of Plumbers 

Correction officer; retirement; power to approve by Governor and Council 

Counties ; lease of court houses to Veterans Administration 

County; treasurer; commissioners; payments for tuberculosis hospital . 

Court houses, lease of to Veterans Administration 

District court, salary of justice of 

"Education on Wheels"; guided trips in Boston for school children; sight- 
seeing automobiles; iDusses 

Electricians, State Examiners of ; applications; credits to veterans ; St. 1946, 
c. 408 

Eligible list, reasons of appointing authority for not selecting the first person 
on; civil service; G. L. (Ter. Ed.) c. 31, § 15, par. C . . . 

Employee; retention after seventy under St. 1941, c. 634 

Engineer's license, payment of renewal fee for; United States Naval Reserve 
Officer on inactive duty 

Engineers, registration of ; civil service classification 

Fair Employment Practices Commission rules; vState Racing Commission; 
conflict of authorities; G. L. (Ter. Ed.) c. 128A, § 10 . 

Federal-aided projects, rate of wages for employees on; Department of 
Public Works 

Federal funds in grant ; constitutional law 

Federal Government, land ceded to; schoolchildren . . . 

Federal program. State agency to administer; constitutional law; school 
luncheons . • . ■ 

Fire Commissioner; fires in the open air; bonfire; domestic incinerators 

Fire insurance companies, deposits by; merger 

Fireman ; death ; medical panel 

Governor; scope of authority with regard to fares on the Boston Elevated 
Railway 

Great Seal or Arms of the Commonwealth, use of . . 

Group life insurance for municipal employees; constitutional law . 

Guardian, compensation of; payment by insurer; Industrial Accident Board 

Haverhill, tree warden and moth superintendent in; civil service; "princi- 
pal department " 

Hearings; appearance of persons not attorneys-at-law ; Department of 
Public Utilities ... 

Incinerators, domestic; bonfire; fires in the open air; fire commissioner 

Industrial Accident Board; compensation of a guardian; payment by in- 
surer . . . . 

International automotive traffic; treaty; Registrar of Motor Vehicles . 

Interne; Board of Registration in Medicine; limited registration . 

Justice of Newburyport District Court, salary of . . 

Labor Relations Commission; rules and regulations; scope of Commission's 
authority ... . . 

Land, power to lease; permits; Commissioner of Conservation 

Land, power to take under St. 1946, c. 510; Commissioner of Conservation 

Logan Airport; authority of police . . 

LoweU Textile Institute; Building Association ; constitutional law; St. 1946, 

C.428 63 



P.D. 12. 107 

PAGE 

Massachusetts Aeronautics Commission: 

Quorum; authority to act 13 

Regulations; certificates of convenience; necessity of intrastate scheduled 

air carriers 29 

Medical examiner; chief medical officer; autopsy; State Prison Colony . 90 

Medical panel; fireman; death 95 

Medicine, Board of Registration in: 

Interne; limited registration 73 

"New student"; St. 1946, c. 364 50 

Use of degrees of practitioners in medicine and osteopathy .... 54 
Metropolitan District Commission, change in employment from Park to 

Sewerage Division of; transfers; civil service 24 

^MilitarA' leave of absence: 

Civil se^^•ice ; promotional examinations 22 

Pa^^nents for employee on ; step-rate increments; retirement system . 53 

Militia, eligibility of certain member of; retirement system .... 80 
Motor Vehicles, Registrar of: 

International automotive traffic ; treaty 88 

Department of Public Works ; authority of each ; appeals . . .11 

Municipal employees, group life insurance for; constitutional law ... 44 

Municipality ; investment of trust funds .... ... 76 

Navigable waters, certificates to steamships or other vessels for carriage of 
passengers or property over; Department of Public Utilities; scope 

of authority 56 

"New student"; Board of Registration in Medicine; St. 1946, c. 364 . . 50 

Newburv'port District Court, salary of justice of 33 

Non-military use; armories: 

Lease 71 

Local committee of a political or municipal party 61 

Public parking 101 

Rules; permit; inspection 78 

Old Age Assistance; pubhc welfare; oAvnership of real estate; bond and 

mortgage 102 

Osteopathy, use of degrees of practitioners in 54 

Outdoor advertising; permits; renewal; inspection fees 100 

Parents, duty of children to support; veterans' dependents .... 57 

Parking meters, approval of; Department of Public Works .... 51 
Plumbers, Examiners of: 

Master plumbers ; State institutions ; employment bj' corporations . . 86 

Town regulations by by-law; plumbing inspector 79 

Plumbing inspector; town regulations by by-law; Examiners of Plumbers . 79 

Police, authority of ; Logan Airport 91 

Police power, interference with Federal operations by the exercise of; con- 
stitutional law 95 

"Principal department"; civil service; tree warden and moth superintendent 

in Haverhill 101 

Promotional examinations; civil service; military leave of absence 22 

Promotions; civil service ; seniority 25 

Province lands, lease of; Department of Pubhc Works 98 

Public safety ; keeping or storing of compressed air; certificate ... 96 
Public Utilities, Department of: 
Certificates to steamships or other vessels for carriage of passengers or 

property over navigable waters ; scope of authority .... 56 

Guided trips in Boston for school children ; sight-seeing automobiles ; busses 93 

Hearings; appearance of persons not attorneys-at-law 81 

Pubhc Welfare, Department of; employee, retention after seventy under 

St. 1941, c. 634 26 



108 P.D. 12. 

PAGE 

Public welfare: 

Old Age Assistance; ownership of real estate; bond and nciortgage . . 102 

Schooling for children in boarding homes 85 

Public Works, Department of : 

Approval of parking meters in 1946 51 

Bridges; public hearings; State highways .14 

Lease of province lands 98 

Rate of wages for employees on Federal-aided projects 48 

Registrar of Motor Vehicles; authority of each; appeals .11 
Transfer of bridge employees from municipal service to that of the Com- 
monwealth ... 52 

Pupils, resident and non-resident, tuition of; veterans; Servicemen's Re- 
adjustment Act of 1944 34 

Quorum; Massachusetts Aeronautics Commission; authority to act . . 13 
Radio advertising program; registering label; Secretary of the Common- 
wealth 42 

Registers of probate, offices of; Saturday closing; departments of the State 

government . 34 

Reserve officer on inactive duty; payment of renewal fee for engineer's 

license 37 

Retirement : 
Correction officer; power to retire; power to approve by Governor and 

Council 59 

Creditable service; transfer of certain employees to Federal employment; 

veterans 74 

Teacher; St. 1946, cc. 418, 425 . 26 

Teachers' pensions; reimbursement of city of Boston under G. L. (Ter. 

Ed.) c. 32, § 20 (2) (c) 28 

Under G. L. (Ter. Ed.) c. 32, §§ 56, 57; veteran; Boston police officers . 16 

Retirement law; appointment of person over seventy; State official . . 39 
Retirement system : 
EUgibility of certain member of organized militia . . . . . .80 

Payments for employee on military leave of absence; step-rate increments 53 

Saturday closing; offices of registers of probate 34 

School children : 
Guided trips in Boston for; "Education on Wheels"; sight-seeing auto- 
mobiles; busses 93 

Land ceded to Federal Government 38 

Schools : 
Luncheons; State agency to administer Federal program; constitutional 

law 17 

PubUc; persons employed in care of children of pre-school age; Teachers' 

Retirement Association 67 

Superintendency union; "valuation" of a town as used in G. L. (Ter. Ed.) 

c. 71, § 61 _ . . 103 

Secretary of the Comonwealth; registering label; radio advertising program 42 

Seniority; civil service ; promotions . 25 

Servicemen's Readjustment Act of 1944; tuition of resident and non-resident 

pupils; veterans 34 

Settlement of veterans' dependents 94 

Seventy, appointment of person over; retirement law; State official . 39 

Retention of employee after reaching age of ; St. 1941, c. 634 . . .26 

Soil conservation; committee; districts; scope of authority; supervisors . 23 

State highways; bridges; Department of Public Works 14 

State Ornithologist; Department of Conservation ...... 86 

State Prison Colony; chief medical officer; autopsy; medical examiner . 90 



P.D. 12. 109 

PAGE 

State Racing Commission : 
Fair Emplojniient Practices Commission rules; conflict of authorities; 

G. L. (Ter. Ed.) c. r28A, § 10 62 

Rules; misapplication of regulations; pajTuent by licensees ... 57 
Step-rate increments; retirement system; payments for employee on mili- 
tary- leave of absence 53 

Superin tendency union; schools; "valuation" of a tovni as used in G. L. 

(Ter. Ed.) c. 71, § 61 103 

Teacher; retirement; St. 1946, cc. 418, 425 26 

Teachers' pensions; retirement; reimbursement of city of Boston under 

G. L. (Ter. Ed.) c. 32, § 20 (2) (c) 28 

Teachers' Retirement Association; pubhc schools; persons employed in care 

of children of pre-school age 67 

Tidewaters, structures in; grants; licenses; compensation .... 14 
Transfers; civil service; change in employment from Park to Sewerage Divi- 
sion of Metropolitan District Commission 24 

Treasurer; deposits by fire insurance companies; merger 76 

Trust funds, investment of; municipality .76 

Tuberculosis hospital, payments for; county; treasurer; commissioners . 69 
Tuition of resident and non-resident pupils; veterans; Servicemen's Read- 
justment Act of 1944 34 

United States Naval Reserv-e Officer on inactive duty; payment of renewal 

fee for engineer's hcense 37 

United States, service in the armed forces of; veterans' bonus ... 70 

Veterans' benefits; duty of children to support parents; veterans' dependents 57 
Veterans' bonus: 

AppUcation of under St. 1945, c. 731 18 

Application of under St. 1946, c. 581 19 

Service in the armed forces of the United States .70 

Veterans, credits to; State Examiners of Electricians; applications . . 35 

Veterans' dependents, settlement of . . 94 

Veterans : 
Retirement; creditable service; transfer of certain employees to Federal 

employment 74 

Under G. L. (Ter. Ed.) c. 32, §§ 56, 57; Boston poUce officers . 16 
Tuition of resident and non-resident pupils; Servicemen's Readjustment 

Act of 1944 .•.-.•.• • -34 

Watertown Fire Department, authority to promote in; civil service . . 43