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

Public Document No. 12 

Cbe Commontoealtl) ot ^asmttunetts 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1948 




Publication of this Document Approved by Geobge J. Cronin, State Purchasino Agent 
900. 7-'49. 26708. 



Public Document No. 12 



CJ)e Commontuealtl) of q^asgacljuisetw ; Attl? r r^ 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1948 




Publication of this Document Approved bt Georoe J. Cronin, State Purchasino Aoent. 
900. 7-'49. 26708. 



STAII UBRMH Of MSteiS:! 

XT 19 194^ 

STATE House, BOSTON 






Clje Commontoealtf) of ^aggacfjusetw 



Department of the Attornft Gene;bal, 
Boston, January 12, 1949. 

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, 1948. 

Very respectfully, 

CLARENCE A. BARNES, 

Attorney General. 



Cf)e CommonUiealt!) of C^a0$acf)U0ett0 



DEPARTMENT OF THE ATTORNEY GENERAL 
State House 



Attorney General 
CLARENCE A. BARNES 



First Assistant Attorney General 
George B. Rowell 



Assistants 



Roger Clapp Alfred E. LoPresti 

William S. Kinney Roger AV. Cutler, Jr. 

Nathan B. Bidwell^ Wm. Gardner Perrin^ 

Charles Shulman Herbert D. Robinson * 

John R. Wheatley Norris M. Suprenant 

George P. Drury- Roland H. Parker 

George Fingold William H. Sullivan 

Michael A. Fredo Beatrice Hancock Mullaney' 

David H. Stuart Ernest Brenner 

David J. Coddaire ^ Thomas F. McLaughlin 

Sumner W. Elton Conde J. Brodbine^ 

Fred W. Fisher Floyd H. Gilbert 

Brinley M. Hall Richard J. Cotter, Jr.'' 

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

Assistant Attorneys General assigned to Division of Employnient Security 
Saul Gurvitz - Joseph S. Mitchell 

Chief Clerk to the Attorney General 
Harold J. Welch 

List Clerk to the A ttorney General 
James J. Kelleher 

Director of Division of Collections 
W. Forbes Robertson 

1 Resigned Nov. 30, 1947. ' Resigned Oct. 7, 1947. 

2 Speeiilly assigned to N. Y., N. H. & H. R.R. case. • Died Nov. 14, 1947. 

» ResiKiied Mar. 9, 1948. ' Resigned Dec. 31, 1947. 

* Resigned Jan. 6, 1948. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1947, to June 30, 1948 



Appropriations. 

Attorney General's salary ...... 

Assistants and others ...... 

Expenses ......... 

Settlement of damages by state-owned cars (G. L. (Ter. Ed. ) c 
Settlement of small claims (G. L. (Ter. Ed.) c. 12, § 3 A) . 
Veterans' Legal Assistance ..... 

Convention of National Association of Attorneys General 



12, § 3B) 



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

For convention of National Association of Attorneys General . 



Total 



$10,000 00 

175,730 00 

12,308 00 

8,000 00 

4,000 00 

20,000 00 

5,000 00 

$235,038 00 



$10,000 00 

156,730 00 

12,308 00 

7,989 22 

3,999 45 

16,761 01 

2,364 47 

$210,152 15 



Financial statement verified (under requirements of c. 7, § 19, of the General Laws), 
December 27, 1948. 

By JOSEPH A. PRENNEY, 

For the Comptroller. 



Approved for publishing. 
December 23, 1948. 



F. A. MONCEWICZ, 

Comptroller. 



Ci)c Commontoealtf) of Qia$$ac!)usett$ 



Department of the Attorney General, 
Boston, January 12, 1949. 

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, 1948, totaling 14,851, are tabulated as follows: 

Corporate franchise tax cases ......... 1 

Extradition and interstate rendition ........ Ill 

Land Court petitions ........••• 121 

Land damage cases arising from the taking of land: 

Department of Pubhc Works ........ 103 

Metropohtan District Commission . . . . . ■ .11 

Miscellaneous cases, including suits to require the filing of returns by corpora- 
tions and individuals and the collection of money due the Commonwealth 4,826 
Petitions for instructions under inheritance tax laws ..... 5 

Estates involving application of funds given to public charities . . .. 905 

Settlement cases for support of persons in state hospitals .... 73 

Pardons: 

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

c. 127, § 152, as amended 103 

Workmen's compensation cases, first reports .....-• 2,104 

Cases in behalf of Division of Employment Security ..... 1,068 

Cases in behalf of Veterans' Division ........ 5,420 

Since January 17, 1945, it has been my honor and privilege to serve the 
people of the Commonwealth of Massachusetts as their Attorney General. 
During that period of time many important cases of first impression have 
arisen in the Commonwealth of Massachusetts, some of which have been 
dealt with in my prior reports. 

Since my last report, and in accordance with the authority conferred 
upon me by the Legislature, I have followed the custom developed in the 
earlier years of my term in office of conferring with District Attorneys and 
their assistants. At each of these conferences which have been attended 
by the District Attorneys and a substantial number of their assistants 
many important problems in connection with the uniform enforcement of 
law throughout the Commonwealth have been considered, as well as pro- 
posed legislation to be presented for enactment to the General Court. As 
a result of these meetings held during the years 1947-1948 a substantial 
contribution has been made by this group to more effective methods of 
dealing with sex crimes and juvenile delinquency. Certain administra- 



8 P.D. 12. 

tive difficulties which have developed in connection with some of the legis- 
lation which has been passed have been called to the attention of the Gen- 
eral Court through specific legislation and through proposed legislation 
submitted to the legislative commissions dealing with these matters. I 
have had the complete co-operation of the several District Attorneys and 
their assistants in connection with these important tasks. 

The litigation between the Lowell Gas Light Company and the Depart- 
ment of Public Utilities, referred to in my previous report, has been heard 
by a Master and the questions of law involved argued before the Supreme 
Judicial Court. It is probable that these matters will be decided during 
the year 1949. 

In my previous report the litigation arising out of the act passed by the 
1946 Legislature in connection with the dissolution of the Boston Holding 
Company was referred to. This matter has now been heard by the Su- 
preme Judicial Court and the constitutionality of this act finally deter- 
mined in favor of the Commonwealth. 

Since the beginning of my administration 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 could be protected, has been es- 
tablished and maintained. Two Assistant Attorneys General have devoted 
their entire time to this division. More than ten thousand veterans, their 
parents, wives, widows and dependents, have been given legal advice by 
this Veterans' Division smce its establishment. The division has followed 
closely all legislation passed by the 1948 legislative session, and monthly 
bulletins have been issued setting forth these new laws as they have been 
enacted. Current veterans' news of national importance was also pub- 
lished in the bulletin. 

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 the problems concerning 
veterans which have come to the attention of the division have involved 
real estate transactions, tax exemptions on real estate, used car deals, 
evictions, licenses, reinstatement, civil service, retirement, education and 
employment. Inquiries made of this division are not only State-wide but 
also from veterans in other States who consider Massachusetts their home. 
Many fraudulent practices have been brought to the attention of the 
division and every effort has been made to check such reports carefully 
and to see to it that the veteran was protected. I feel that there has been 
established a legal service of real value to the veterans and sincerely hope 
that if they are in need of legal advice they will commun'cate with this 
division. I recommend the continuance of this Veterans' Division. 

The continuance of the development of the Logan International Airport 
at Boston and the Port of Boston have brought many involved legal 
problems. Either in person, or through my Assistants, appearances have 
been made on behalf of the citizens of the Commonwealth before the Civil 
Aeronautics Board at Washington seeking to secure additional rights for 
the Boston Airport, and before the Interstate Commerce Commission 
and other Federal tribunals in connection with the Port of Boston. 



P.D. 12. 9 

During my term of office many intricate problems have arisen in connec- 
tion with contracts proposed by Federal bureaus in connection with 
Federal grants-in-aid. There seems to be a growing and dangerous tend- 
ency, so far as the States are concerned, in the insistence by Federal author- 
ities that State officials should execute contracts containing terms which 
substantially give to the Federal authorities the right to control the means 
and methods to be used in connection with the expenditure of such funds. 
So long as these Federal requirements do not conflict with the Constitu- 
tion or laws of the Commonwealth of Massachusetts, it is my feeling that 
they do harm only to the extent that they require a standardization of 
procedure where in many instances better results would be obtained if 
local authorities were permitted to establish their own procedure. In so 
far as the requirements conflict with States' rights, with the Constitution 
of the Commonwealth of Massachusetts or with its laws, I have refused 
to certify such contracts as being in proper form. It is my belief that to 
do otherwise would not be in the best interests of the Commonwealth of 
Massachusetts. The practice of the Federal Government taking through 
taxation from the States more than is needed for the proper functioning 
of the Federal Government is, I believe, improper. It seems to me that 
if the States were allowed to raise such funds as are needed for their own 
use and the Federal Government were allowed to raise such funds as are 
needed for its use, better results would be obtained. At least, we would 
have home rule in tax and other matters, and the people of the Common- 
wealth would not be burdened with administrative costs and Federal rules 
and regulations in connection with the expenditure of moneys which funda- 
mentally belong to the people of Massachusetts. 

As Attorney General I have continuously advised elected officers, de- 
partment heads and committees of the Legislature, either through formal 
opinions or more frequently through informal advice. I have sought at 
all times to conduct this department with high eflSciency and high stand- 
ards in fairness to all the people. 

I have not attempted in this report to set forth in detail many of the 
activities 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 deeply grateful to the Assistant Attorneys 
General and to the members of the department who have, throughout my 
term of service, carried out their duties with dignity, capacity and ability 
on behalf of myseK and the Commonwealth of Massachusetts. 

Respectfully submitted, 

CLARENCE A. BARNES, 

Attorney General. 



OPINIONS. 



Claim against Commonwealth — Form of Release — Lien of Attorney. 

July 14, 1947. 

Hon. Fred A. Moncewicz, Comptroller. 

Dear Sir: — Replying to your recent letter in which you have asked 
my opinion relative to a release and agreement of the releasee, which are 
in accordance with the provisions of Res. 1947, c. 33, I hereby approve 
the form of said release and agreement. 

Pajmient appears to be in order, notwithstanding a letter claiming a 
lien for attorney's fees on money so payable by one Lenzi. 

I am of the opinion that participation in any of the proceedings which 
may have effected the passage by the Legislature of said chapter 33 is not 
of such a character as to entitle an attorney to a lien upon money granted 
to one who is his client, under the provisions of G. L. (Ter. Ed.) c. 221, 
§§ 50-50B. 

I am also of the opinion that said chapter 33 is a constitutional exercise 
of the power of the Legislature, although the release is required as a con- 
dition of receiving the grant to agree that no more than ten per cent thereof 
has or will be paid to his attorney. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Motor Vehicles — Operator under Sixteen Years of Age — Comity. 

July 14, 1947. 

Hon. Rudolph F. King, Registrar of Motor Vehicles. 

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

"... whether a non-resident less than sixteen years of age, and prop- 
erly licensed in the state of his residence to operate motor vehicles, may 
legally operate in Massachusetts a motor vehicle registered^ in his home 

state?" 

By the provisions of G. L. (Ter. Ed.) c. 90, § 8, as amended, a license to 
operate motor vehicles may not be issued by you to a person under sixteen 
years of age, nor under G. L. (Ter. Ed.) c. 90, § 10, may a resident person 
of that age operate. Under the terms of our reciprocal statute, G. L. (Ter. 
Ed.) c. 90, § 10, as amended, the applicable portion of which you have set 
forth in your letter, if you determine that any particular foreign State by 



P.D. 12. 11 

reason of laws permits the operation of motor vehicles by persons less than 
sixteen years of age, it may be said that such State does not by reason 
thereof "prescribe and enforce a standard of fitness for operators of motor 
vehicles substantially as high as those prescribed and enforced in this 
commonwealth," and consequently that a resident of such State less than 
sixteen years of age, though properly licensed in his home State to operate 
motor vehicles, may not legally operate a motor vehicle in Massachusetts 
irrespective of the ownership of the vehicle. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Port of Boston Authority — Right of Re-entry into Service of Present Au- 
thority of One who left the Service of the Predecessor of the Authority 
to Enter the Armed Forces of the United States. 

July 15, 1947. 

Port of Boston Authority. 

Gentlemen: — You have asked my opinion with regard to the right 
of an employee of your predecessor, the Boston Eort Authority, who has 
been serving in the military forces of the United States, to return to his 
position within two years after leaving such forces. 

The right of re-entry into the public service of the present Authority 
by those who left the service of its predecessor to enter the military forces 
of the United States has been preserved by St. 1945, c. 619, § 9, subject 
only to a qualifying civil service examination. 

With relation to the said employee of the predecessor of your board 
seeking to re-enter his position, which is now under the jurisdiction of 
your board, the sole question appears to be as to whether such employee 
left the service of the said predecessor board for "the purpose of serving 
in the military forces of the United States." If so, he is entitled to assume 
his former position. 

It is provided by St. 1941, c. 708, as amended, that a person leaving 
the service of the Commonwe'alth to enter the military forces of the United 
States, during the period applicable to the employee under consideration, 
shall be deemed to be on leave of absence until the expiration of two years 
from the termination of his military service. If such employee files a 
resignation in writing, that "shall b^ considered a final determination of 
the reason for leaving the service of the commonwealth, or a political 
subdivision thereof." 

It appears from the facts which you have stated in your letter that the 
employee in question left the Commonwealth's sei'vice without any resig- 
nation on April 15, 1941, to enter the militaiy service of the United States 
and that he did so enter the latter and has remained therein until June 26, 
1947 .♦ He was specifically granted a leave of absence from April 15, 1941, 
until March 23, 1942. 

On or about April 15, 1942, as his military sei-vice was likely to con- 
tinue for a long time, he asked for and received another specific leave of 
absence, from April 15, 1942, for an indefinite period. 

On November 9, 1942, the employee sent the following letter of resigna- 



12 P.D. 12. 

tion'to'the Boston Port Authority, more than a year and a half after he 
had left the Commonwealth's employ. It reads: 

"War Department 

Army Air Forces, Air Service Command 

United Nations Depot No. 8 

Newark Airport 

Newark, New Jersey. 

November 9, 1942. 

Mr. Richard Parkhurst, Chairman, Boston Port Authority, 1600 Customhouse, Boston, 

Mass. 

Sir: — I tender herewith my resignation as Commerce Assistant, Boston Port Author- 
ity, to take effect immediately. 

Yours very truly, 

s/ Walter McCoubrey, 

Major, Air Corps. " 

At the same time he wrote the following communication to the executive 
officer of the Boston Retirement Board referring to this letter of resigna- 
tion and requesting to withdraw his accumulated deductions from the 
retirement fund: 

"United Nations Depot #8 

Newark Airport 

Newark, N. J. 

November 9, 1942. 

Mr. W. D. Ivenney, Executive Officer, Boston Retirement Board, Room 65, City Hall, 

Boston, Mass. 

Dear Sir: — I am attaching herewith a copy of letter addressed to the Chairman 
of the Boston Port Authority, dated November 9th, 1942, from which you will note 
that I have resigned as of that date. 

It would be appreciated if check to cover the value of my accumulated deductions, 
with interest, be mailed to me, care of Mr. Richard Parkhurst, Chairman, Boston Port 
Authority, 1600 Customhouse, Boston, Mass. 

In view of the fact that I expect orders for overseas duty, it would be very helpful 
,to me if you would do all possible to expedite dehvery of this check to Mr. Parkhurst. 

Yours very truly, 

(signed) Walter McCoubrey, 

Major, Air Corps. " 

A check covering his accumulated deductions with interest was sent, 
you state, to the employee by the retirement board; also a letter accept- 
ing his resignation of November 9, 1942, was sent him by the chairman of 
the Authority. 

The letter of resignation does not state the employee's "reason for, such 
resignation." The statute, St. 1941, c. 708, § 1, as amended by St. 1943, 
c. 548, § 1, states that: 

"When a person holding an office . . . enters the military or naval 
service of the United States and files a resignation in writing stating his 
reason for such resignation, the resignation shall be considered a final 
determination of the reason for leaving the service of the commonwealth, 
or a political subdivision thereof." 



P.D. 12. 13 

The resignation filed by this oinployoe stated no reason for his leaving the 
Commonwealth's service. His doings before the date of such resignation 
apparently show beyond doubt that he left for the purpose of entering the 
military service. It cannot be said that his resignation a year and a half 
after he entered the army, stating no reason for such resignation, can be 
considered as rebutting the statutory presumption that he left for the 
purpose of entering such service. 

The fact that it may be inferred that the letter of resignation was 
written for the purpose of obtaining repayment of his contributions to the 
retirement fund, such repayment not being permitted to one leaving the 
Commonwealth's service for the purpose of entering the army until one 
year after the termination of his military service (St. 1941, c. 708, § 8), 
does not supply a substitute for the absence of a specific reason for the 
resignation stated therein. Accordingly, the letter of resignation does not 
overcome the presumption that by virtue of the employee's entry into the 
military service of the United States he was on a leave of absence, which 
leave is still in force and therefore, in my opinion, he is entitled to his former 
position. 

It is true that no payment of accumulated deductions should have been 
paid to the employee, but the Legislature apparently contemplated that 
such a mistake might be made and provided that if such accumulated de- 
ductions were in fact withdrawn when not due, they might be repaid by 
the employee in returning to the Commonwealth's service (St. 1941, c. 708, 
§9). 

The letter of resignation couched in the phraseologj^ employed therein 
and its acceptance did not deprive the employee of his statutory right to 
return to his place within the prescribed time after the termination of his 
military service, nor was such right affected by any action of the Authority 
based upon such resignation or acceptance. The employee had an absolute 
right upon the termination of his military service to re-enter the position in 
the Commonwealth's employ which he left, no contrary reason for such 
leaving ever having been given. It does not appear that he was appointed 
for a definite term of years which has expired. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



General Court — Definition. 

July 15, 1947. 

Mrs, Irene K. Richards, Director of Registration. 

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

"The Board of Registration of Professional Engineers and of Land 
Surveyors respectfully request your interpretation as to the meaning of 
the words 'general court' as contained in Section 81G — 1 (a) Chap. 643, 
Chap. 13, g. 1. 

"The contention has been made that these words apply to the Congress 
of the United States rather than to the Massachusetts Legislature. 

"There is no question in the mind of the Board as to the meaning of this 
wording, but there seems to be in the mind of a certain applicant and we 
would like your opinion to support their belief." 



14 P.D. 12. 

The words "general court" whenever used in the statutes of the Com- 
monwealth refer to the Legislature of Massachusetts and not to^the 
Congress of the United States or to any other body, and they are employed 
in the specific enactments to which you call my attention as meaning the 
legislative body which is more fully styled the General Court of Massa- 
chusetts in the Constitution of this Commonwealth, pt. 2d, c. 1, § 1, The 
General Court, art. I. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Conservation — Authority over Certain Clam Flats Ceded to the United States. 

July 15, 1947. 
Hon. A. K. Sloper, Commissioner of Conservation. 

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

"The clam flats adjacent to the United States Aviation Station at 
Squantum lie within the boundary of the reservation. Title to the land, 
including the flats, was obtained by the United States from various owners 
dating back prior to 1930. 

"By St. 1930, c. 333, § 1, Tract 2, the Legislature ceded jurisdiction 
over said land to the United States of America. The clam flats in ques- 
tion are within an area determined by the State Department of Public 
Health to be contaminated and the said department has prohibited the 
taking of shellfish for food purposes from this area. 

"I respectfully request your opinion as to what authority, if any, the 
coastal wardens of the Division of Marine Fisheries have to enforce the 
provisions of G. L., c. 130, § 75, in that area." 

Inasmuch as jurisdiction over the flats of which you write was ceded 
to the United States by the Legislature, St. 1930, c. 333, if the tract in 
question has not reverted to the Commonwealth under sections 2 and 3 
of said chapter 333 by reason of non-user for purposes of military defense 
by the United States or by reason of failure to file a plan with the State 
Secretary, the coastal wardens have no authority to enforce the provisions 
of G. L. (Ter. Ed.) c. 130, § 75, within that area. 

All laws, however, relative to transportation, use, possession or sale of 
contaminated clams may be enforced against those having possession of 
contaminated clams dug upon the ceded flats when such clams are brought 
outside such area. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Tax Exemption — Woman who Served in the Armed Forces of the United 
States — G. L. {Ter. Ed.) c. 59, § 5, as amended. 

July 22, 1947. 

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

Dear Sir : — You have asked my opinion as to whether a woman 
who you state "served in the armed forces of the United States in the 
recent war" is entitled to a tax exemption under the twenty-second clause 



P.D. 12. 15 

of section 5 of G. L. (Ter. Ed.) c. 59, as most recently amended by St. 
1947, c. 612. 

You have as Commissioner of Veterans' Services no particular duties 
to pcrfomi in connection with the statute in question, which relates to 
certain exemptions from taxation. 

For your guidance, however, let me state that the section of the statute 
to which you refer, as amended by said St. 1947, c. 612, provides an ex- 
emption of two thousand dollars to "soldiers and sailors who served in 
the military or naval service of the United States" in various eimmerated 
wars, including World War II, who were honorably discharged therefrom 
and who suffer from certain described disabilities. The statute also in- 
cludes an exemption to the wives and widows of soldiers or sailors who 
would be entitled to exemption. 

Although the words "soldiers and sailors" are used in the instant 
statute as they were in the earlier statutes, which have been amended 
from time to time, nevertheless, I am of the opinion that the words "sol- 
diers and sailors" are capable of embracing women who actually served 
in the military or naval forces, and that a narrow meaning of the words, 
which may have been their practical scope when originally used in earlier 
forms of the present enactment, is reasonably capable of a broader sweep 
within the legislative intention and now includes both males and females 
who were members of the military or naval forces of the United States. 

In a well-considered case. United States v. Williams, 59 F. Supp. 300, 
it is said that the words "soldier in the military service" as used in a 
United States statute are sufficiently broad in their meaning, without 
any additional phrase, to include a member of the WAC. I am of the 
opinion that the word "soldiers" as employed in the statute under con- 
sideration should be given a similar construction in this Commonwealth. 

It is to be noted that the particular woman to whom you refer, who 
"served in the armed forces of the United States in the recent war," 
received an adverse decision from a local board of assessors. In order to 
protect her rights and to have the matter properly determined by the 
courts she must carefully perfect her appeal to the Appellate Tax Board 
and from there go on to the Supreme Judicial Court, if necessary. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Massachusetts Aeronautics Commission — Appropriation — Construction. 

July 24, 1947. 

Hon. Lester Watson, Chairman, Massachusetts Aeronautics Commission. 

Dear Sir: — You have asked my opinion as to whether the reference 
to chapter 501 in St. 1947, c. 670, in the appropriation item which reads: 

"For the Service of the Massachusetts Aeronautics Commission. 

"For the reimbursement to cities and towns for the state 
share of airport construction as provided in chapter five 
hundred and one of the acts of the current year, to be avail- 
able for matching federal funds for the 1947 fiscal year and 
succeeding years, including the commonwealth's share of 
projects at the state-owned airport at Bedford , . $750,000 00 ' ' 

should be construed as reading chapter "five hundred and ninety-three" 
instead of "five hundred and one," as it is set forth in the above item. 



16 P.D. 12. 

I answer your question in the affirmative. An examination of both 
measures shows clearly that the substitution of "five hundred and one" 
for "five hundred and ninety-three" in the item in question was a clerical 
error and that the number was intended to read "five hundred and ninety- 
three." 

It appears to be a general rule of statutory construction that a mistaken 
reference to a title, chapter or section number of a statute in another statute 
will be disregarded and the reference will be read as if made to the proper 
title, chapter or section number if enough appears in the statute to indicate 
properly the legislative intent. (5 A. L. R. 997, and cases there cited; 
Tatloio V. Bacon, 101 Kan. 26; 14 A. L. R. 269; 50 Am. Jur., Sec. 233.) 

There is enough appearing in the statute itself to show that it referred to 
chapter 593 and not 501, as erroneously indicated, for chapter 501 does not 
in any way provide specifically for the State Treasurer's expenditure of 
matching funds to Federal funds. Fundamentally, chapter 501 provides 
for the establishment and operation of joint airports by two or more munic- 
ipalities. One of the six basic requirements of an agreement between the 
municipalities as set forth therein is the establishment of a joint airport 
fund into which shall be deposited the proportionate share (of each munic- 
ipality) of the cost and expenses incident to establishing, maintaining and 
operating the joint airport, all revenues and "all federal, state and other 
contributions or loans." 

On the other hand, it is obvious that the Legislature by chapter 593 
created the vehicle for carrying the appropriated funds to the municipalities 
which, in accordance with the State Airport Plan, secure grants from the 
Federal Government to be matched. 

Section 2 of chapter 593, inserting a new section 511 in G. L. (Ter. Ed.) 
c. 90, authorizes the expenditure of funds entirely under Federal laws where 
the program is financed in whole or in part by Federal moneys. 

Section 3 of chapter 593, inserting a new section 51K in G. L. (Ter. Ed.) 
c. 90, provides that the local airport commission of a municipality seeking 
Federal funds shall designate the Massachusetts Aeronautics Commission 
as its agent to receive and receipt for them. It puts the approval of the 
site in the discretion of the Massachusetts Aeronautics Commission and 
then proceeds to authorize the expenditure of funds " available therefor, 
including the appropriation voted and the amount of any gift or bequest, 
together with the amount or amounts stated in any existing agreements 
for the allotment or grant of funds by the federal government or common- 
wealth, or both." Section 3 concludes with the provision for the munic- 
ipality's borrowing on a short-term loan in anticipation of funds covering 
that portion of the expense being provided by the Federal Government 
and the State. 

Section 4 of chapter 593, inserting a new section 39F in G. L. (Ter. Ed.) 
c 90, completes the legislative picture on matching Federal funds by pro- 
viding the means of conveying the funds from the appropriation in chapter 
670 through the Massachusetts Aeronautics Commission to the munic- 
ipalities participating in the Federally-aided projects. It establishes the 
proportion to be contributed by the State as being not more than twenty- 
five per cent, which, together with the appropriation of the municipality, 
shall equal fifty per cent of the total cost. The amount of the State's con- 
tribution, up to that twenty-five per cent, is determined by the Massa- 
chusetts Aeronautics Commission and at their request is paid over to the 
city or town by the State Treasurer from "funds available under this sec- 



P.D. 12. 17 

tion." There are no other funds available than those provided by chapter 
670. 

In conclusion, it should be noted that a joint airport created and operat- 
ing under chapter 501 can participate in the Federal aid program and in 
the State's matching funds to the same extent as any independently mu- 
nicipally owned airport. 

In the face of such facts, it would be a clear perversion of the legislative 
intent to hold otherwise than that chapter 593 was the intended reference 
in place of chapter 501 in the second item of section 2 of chapter 670. 
YerY truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Medical Panel — Finality of Finding. 

Aug. 4, 1947. 
Donald E. Currier, M.D., State Surgeon. 

Dear Sir: — In answer to your recent latter let me advise you that 
the decision of a medical panel appointed and acting under G. L. (Ter. Ed.) 
c. 32, § 6 (1) and (3) (a) (6) (c), as amended by St. 1945, c. 658, is final. 
There is nothing in the phraseology of the appHcable statutes which indi- 
cates a legislative intent that an applicant for retirement dissatisfied with 
the finding of such a medical panel shall be entitled to a re-examination. 

I am informed that a construction of the statute similar to that which I 
^ave given above has long been applied by the State Contributory Retire- 
ment Appeal Board in cases coming before it. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Plumhing — Inspector of Plumbing in Towns — Appointment. 

Aug. 28, 1947. 
Mrs. Irene K. Richards, Director of Registration. 

Dear Madam: — I acknowledge your letter of recent date in which you 
ask my opinion on the following question : 

"Does an inspector of plumbing or his assistants, who are not under an 
annual salary in towns having the requirement of a stated fee per inspec- 
tion, have to be reappointed every three years?" 

G. L. (Ter. Ed.) c. 142, §§ 9 and 11, contain the provisions of ^law rela- 
tive to the appointment of inspectors of plumbing. Section 9 states, in 
substance, that within thirty days after rules have taken effect as provided 
in the preceding section, the local board of health shall appoint an inspector 
to hold office for three years, and he shall receive from the town compensa- 
tion to be fixed by the appointing board. The preceding section referred 
to has to do with pluml)ing rules formulated by the State Examiners of 
Plumbers upon petition by a local board of health of a town. 

These two sections must be construed together in determining the dura- 
tion of the term of the plumbing inspector appointed pursuant to section 9. 
It follows, therefore, that a plumbing inspector appointed by a town board 
of health under rules formulated by the State Examiners in consequence 



18 P.D. 12. 

of a petition under section 8 holds office for three years, and a new or 
reappointment must be made every three years. 

Section 11, as amended by St. 1945, c. 703, § 11, states, in substance, 
that the inspector of buildings, if any, otherwise the board of health, of 
each city and town, shall, within three months after it becomes subject to 
sections 1 to 16, inclusive (of chapter 142), appoint from the classified civil 
service list one or more inspectors of plumbing. Such inspector of build- 
ings or board may remove them (inspectors of plumbing) subject to chap- 
ter 31, and shall, subject to the approval of the city council or selectmen, 
fix the compensation of such plumbing inspectors, which compensation 
shall be paid by the city or town. Plumbing inspectors appointed pursuant 
to said section 11 hold office indefinitely and may be removed only pur- 
suant to civil service regulations. 

You further ask if chapter 49 of the Acts of 1941 abolishes that part of 
section 9 of chapter 142 relative to the appointment of plumbing inspectors 
for a period of three years. It is my opinion from what I have stated 
herein that chapter 49 of the Acts of 1941 does not abolish any portion of 
said section 9 of chapter 142, 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Outdoor AdvertisinQ Authority — Comvensation of Members — Meetings. 

Sept. 2, 1947. 
Outdoor Advertising Authority. 

Gentlemen: — You have called my attention in a recent letter to the 
provisions of St. 1946, c. 612, with regard to the compensation of the mem- 
bers of the Outdoor Advertising Authority. You have informed me that 
the members, sometimes singly and sometimes together, make investiga- 
tions and perform certain other designated acts in connection with out- 
door advertising. 

1. With relation to the foregoing you have asked me three questions as 
follows : 

"Does the performance of such necessary duties entitle the members of 
the Authority to compensation for such services on a per diem basis within 
the limitations prescribed by the act? 

"Can 'board meetings' as set forth within the section be construed to 
refer to any functions performed by the commissioners that are incumbent 
upon them as a board to do and perform in the proper performance of their 
duties prescribed under the act? 

"Can 'board meetings' as set forth within the section be construed to 
refer to any functions performed by the commissioners that are incumbent 
upon them as a board to do and perform in the proper performance of their 
duties prescribed under the act, when such functions are a continuing and 
necessary part of every regular full board meeting, and necessary to carry 
out the purpose of such full board meetings? " 

I answer your first question in the negative. 

St. 1946, c. 612, § 2, which you quote in your letter, has set forth ex- 
plicitly how the members of the Authority shall be compensated. The 
Legislature has seen fit to provide compensation for them only for "at- 



P.D. 12. 19 

tendance at board meetings." No provision is made for further com- 
pensation on a per diem or any other basis for activities carried on outside 
of such meetings. 

I answer your second question in the negative^ with this quaUfication : 
that a view taken by the board as such, as an integral part of a meeting, 
may fairly be considered as a part of a board meeting for which com- 
pensation is paid. 

With regard to 3'our third question, the import of it is not sufficiently 
clear so that it can be answered categorically. Speaking generally, the 
words "board meetings" cannot be construed to embrace activities car- 
ried on outside of meetings of the board, as the word "meetings" is ordi- 
narily used to denote a formal gathering of a majority of a board for 
required action upon matters coming before them. 

2. You have also asked several questions with respect to the authority 
of the chairman of the board. The statute is silent as to the extent of 
his powers or duties. The primary duty of a chairman is to preside at 
meetings. It may also be said to be within his authority to call meetings 
for designated times not inconsistent with the times set for regular meet- 
ings by vote of the board itself. The chairman is without authority to 
cancel meetings, either those scheduled by the board or called by himself, 
irrespective of whether or not he can be present at such meetings. 

Two members of this board of three may meet without having been 
called together by the chairman and transact business without him, 
provided that he has been duly notified of the meeting by the majority 
calling the same. Unless the chairman has been duly notified of such a 
meeting, the presence of the other two members will not constitute a 
valid board meeting. 

The foregoing considerations dispose of your first four queries with 
relation to the chairman of the board. 

Your fifth and sixth queries I answer in the affirmative. 

Your seventh query reads : 

"In the matter of viewing controversial locations, is it the chairman's 
prerogative to assign such duties to the board members as he sees fit?" 

I am of the opinion that the chairman has not been vested with power 
to assign duties to the members of the board. Such duties may be as- 
signed by vote of the board itself, or the board might by appropriate 
action delegate to the chairman the privilege of making assignments. 

Your eighth query reads : 

"In the matter of viewing controversial locations as voted by the board 
at a regular meeting, is it necessary that all three commissioners view as 
a group, or is one or two members suflScient?" 

I answer this to the effect that it is sufficient if two members are present 
at a view, such as you refer to, if only two are present at the meeting 
and are to pass upon the subject matter involved, but if all three are 
present at the meeting and arc to pass upon the subject matter involved, 
all should go on the view. 

Your ninth query reads : 

"It having been voted at a regular meeting to view certain locations, 
can any one member or two members take it upon themselves to view 
the same and claim compensation for such services, or must such an 
assignment be made by the chairman?" 



20 P.D. 12. 

I answer this query to the effect that neither one nor two members 
may take it upon themselves to take a view voted at a regular meeting 
as a part thereof except under the conditions outlined in my answer to 
your eighth query, where the meeting is held by only two members. An 
assignment of members less than all the board to go on such a view may 
not be made by the chairman. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Soil Conservation Districts ■ — Liability for Debts. 

Sept. 2, 1947. 

Mr. Lester T. Tompkins, Acting Cormnissioner of Agriculture. 

Dear Sir : — You have asked my opinion relative to the legality of 
a contract form used by soil conservation districts, which j-ou have laid 
before me. 

The provisions of this contract form appear to be legal. 

With relation to the other questions in your letter, let me say that 
under the provisions of the Soil Conservation Law, St. 1945, c. 531, a 
soil conservation district is liable for debts contracted on its behalf, and 
the supervisors of such districts are not personally liable for such debts 
when contracted for by them when acting within the scope of their au- 
thority, nor is the Commonwealth liable for such debts of a district. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Conservation — Leases to Municipalities for Clamming. 

Sept. 3, 1947. 

Hon. Archibald K. Sloper, Commissioner of Conservation. 

Dear Sir: — You have asked my opinion on the following question: 

"Whether the Director of the Division of Marine Fisheries has the 
authority to grant leases from the Commonwealth to cities and towns 
in Essex County for the control and regulation of the taking of clams 
from all flats within any city or town?" 

I answer your question in the negative. 

St. 1912, c. 710, in its applicable parts, provides that the Commissioners 
on Fisheries and Game, whose powers and duties have since been trans- 
ferred in this regard to the Director of the Division of Marine Fisheries, 
shall, upon the application of any city or town in the County of Essex, 
issue a lease to said city or town. 

St. 1941, c. 598, inserted a new chapter, to wit, G. L. (Ter. Ed.) c. 130. 
Section 104 of said chapter 130 reads : 

"This chapter shall not be deemed to affect any provisions or penalties 
contained, or any privileges granted, in any special statute relating to 
fisheries in any particular place, except such provisions thereof as relate 
to shellfish and shellfisheries and to the ale wife fisheries." 



P.D. 12. 21 

Since the provisions of said St. 1912, c. 710, relate to shellfish and 
shellfisheries and are affected by G. L. (Ter. Ed.) c. 130, the power of the 
Director of the Division of ^ilarine Fisheries to execute leases is thereby- 
abrogated. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Emergency Housing Commission — Authority — Variances from (7. L. {Ter. 

Ed.) cc. 144 and I45. 

Sept. 15, 1947. 

Hon. A. S. BiGELOw, Chairman, Emergency Housing Commission. 

Dear Sir : — By your letter of August 21, 1947, you have asked whether 
your commission has jurisdiction and authority under St. 1946, c. 592, as 
amended by St. 1947, c. 609, to grant a variance from the provisions of 
chapters 144 and 145 of the General Laws, which arc building codes. 

I answer your question in the negative. 

The amending act of 1947 struck from section 4 of the original act of 
1946 the following language: "provided, that said commission shall not 
have the power to alter, amend or repeal any law of the commonwealth 
relative to the construction or alteration of buildings or other structures, 
except building codes, so called." This language conceivably was subject 
to the construction of granting jurisdiction and authority to alter, amend 
and repeal said chapters 144 and 145, being building codes in the form of 
laws of the Commonwealth. It is apparent that in striking out this 
language the Legislature intended not to grant jurisdiction and authority 
to your commission to so deal with said chapters 144 and 145. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Public Warehousemen — Bonds of Licensed Warehousemen. 

Sept. 22, 1947. 

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

Sir : — You have in a recent communication directed my attention to 
section 2C of G. L. (Ter. Ed.) c. 105, which was inserted in said chapter 
by St. 1947, c. 499, and reads as follows: 

"Notwithstanding the foregoing provisions of this chapter, persons, or 
corporations established under the laws of, and having their places of 
business within, the commonwealth, maj^ keep and maintain a public 
warehouse on the premises of any other person or corporation for the 
storage therein, under contract, of goods, wares and merchandise of such 
other person or corporation, without being licensed under this chapter." 

In relation to those maintaining the type of public warehouse referred 
to in said section 2C, you have asked my opinion on the following questions 
of law: 

"1. Is a person or corporation keeping and maintaining a public ware- 
house under section 2C of chapter 105 required to give a bond to the state 



22 P.D. 12. 

treasurer as provided in section 1 of chapter 105, or any other provision 
of law pertinent thereto? 

"2. Do sections 4, 5 and 6 of chapter 105 apply to a person or corpora- 
tion keeping and maintaining a public warehouse under section 2C of 
chapter 105?" 

I answer both your questions in the negative. 

The provisions of sections 1, 2 and 3 of said chapter 105, which relate to 
bonds of warehousemen, refer only to bonds of those who are licensed 
warehousemen. Inasmuch as those public warehousemen who operate 
under said section 2C are not licensed warehousemen, the provisions of the 
statute with regard to bonds have no application to them. 

In like manner the provisions of sections 4, 5 and 6 of said chapter 105 
by their terms apply to licensed warehousemen and are not applicable ta 
the unlicensed warehousemen referred to in said section 2C. 
Very truly yours, 

Clarence A. Baenes, Attorney General. 



Civil Service — Reallocation of State Police Detectives — Promotional 

Examination. 

Sept. 29, 1947. 

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

Gentlemen: — You have directed my attention to the reallocation of 
certain state police detectives and have asked my opinion relative to your 
duty to give a promotional examination when a reallocation has been made. 

There is no matter before you at the present time requiring your con- 
sideration relative to reallocation except that of the state police detectives, 
and I confine my opinion as to the proper performance of your duty ex- 
pressly to the explicit subject of the state police detectives upon the par- 
ticular facts relative thereto. 

The classes of state police detectives and of state police detective in- 
spectors appear to have been telescoped and to have emerged under the 
single title of state police detective inspectors, the duties of the new 
position being virtually the same as of the old position of police detectives^ 
the salary ranges established having the same maximum for the new posi- 
tion as for the old, and allocations of individual salaries being provided 
under section 6 of the general appropriation bill (St. 1947, c. 219). The 
number of those now to be called detective inspectors is precisely equal to 
those formerly termed detectives. 

Furthermore, it is to be noted that in the civil service classification, 
Civil Service Rule 4, the whole detective force of the Department of Public 
Safety, including detectives and those on detective inspection work, is in- 
cluded in a single grade, namely. Class 13 (a). 

In view of the foregoing considerations there has not been a promotion 
in the case of former detectives, by reason of the foregoing reallocation of 
positions, which requires you to give a promotional examination to those 
persons formerly called state police detectives. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 23 

Public Welfare — Anticipation of Federal Grants — Legislative Authority 

a Necessity. 

Sept. 29, 1947. 

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

Dear Sir: — In reply to your letter of September 24, 1947, let me say 
that I am not aware of any statute of the Commonwealth which authorizes 
you to pay to municipalities from the appropriations which have been made 
to your department sums in anticipation of allotments which may be paid 
to them from future Federal grants. 

Only by a particular authorization from the Legislature accompanying 
a special appropriation for the indicated purpose would your department 
have authority to make such advancements. 

In the absence of such legislative authorization the Comptroller is cor- 
rect in informing you, as you state he has done, ''that chapter 29 of the 
General Laws as amended would not permit the Department of Public 
Welfare to execute such a plan for advance payments ..." There is 
nothing in the provisions of G. L. (Ter. Ed.) c. 118A, § 7, to which you 
refer, which specifically or by implication would authorize your department 
to make the advance payments cited by you. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Massachusetts Aeronautics Commission — Authority to Accept Certain 
Realty from United States. 

Sept. 30, 1947. 

Mr. Crocker Snow, Director, Massachusetts Aeronautics Commission. 

Dear Sir: — I have your request for an opinion on the extent of stat- 
utory authority in your commission to accept, on behalf of the Common- 
wealth from the War Assets Administrator, title to certain United States 
Government lands, buildings and equipment thereon which now form a 
part of the Bedford Army Airfield. 

St. 1946, c. 442, approved June Q, 1946, establishes in the Massachusetts 
Aeronautics Commission authority to maintain and optM-ate Bedford Air- 
port upon its return to the Commonwealtji from the Federal Government. 
Section 6 of that act specifies that prior to the return of tlu; field the Massa- 
chusetts Aeronautics Commission on behalf of the Commonwealth may 
carry on such negotiations with Federal Government officials as may be 
necessary to effect such return. 

Eight days after the passage of the aforesaid act there were passed by the 
Legislature on June 14, 1946, as emergency laws, revisions of G. L. (Ter. 
EdO c. 90, §§ 39 and 40, by St. 1946, c. 583, § 3, and c. 582, § 1, respectively. 
As thus revised, section 39 sets forth the general supervisor}^ jjower of the 
Massachusetts Aeronautics Commission over aeronautics and in particular 
the "gen(;ral supervision of the construction, maintenance and operation 
of all air navigation facilities and airports, including airport buildings, 
owned by the common W(!alth, except as otherwise provided by law." 
(The exception relates only to Logan Airport, which is under the control 
of the Massachusetts Department of Public Works by virtue of St. 1941, 



24 P.D. 12. 

c. 695.) Section 40, among other general powers and duties, delegates to 
the Massachusetts Aeronautics Commission authority to : 

"(1) Co-operate with the federal government and with any agency or 
department thereof, in the acquisition, establishment, construction, en- 
largement, improvement, protection, equipment, maintenance and opera- 
tion of airports and other air navigation facilities within the common- 
wealth, and comply with the provisions of federal law, and any rules and 
regulations made thereunder, for the expenditure of federal funds for or in 
connection with such airports or other navigation facilities; (2) accept, 
receive and receipt for federal funds, and also other funds, public or private, 
for and in behalf of the commonwealth or as agent for any subdivision 
thereof, for the acquisition, establishment, construction, enlargement, 
improvement, protection, equipment, maintenance and operation of air- 
ports and other air navigation facilities within the commonwealth or such 
subdivisions, or jointly; provided that, if federal funds are received for- 
such work, such funds shall be accepted upon such terms and conditions 
as may be prescribed by federal law and any rules and regulations made 
thereunder; (3) advise and co-operate with any political subdivision of 
this state or of any other state in all or any matters relating to aeronautics. 
For such purpose the commission may confer with, or hold joint hearings 
with, any federal or state aeronautical agency in connection with any pro- 
vision of sections thirty-five to fifty- two, inclusive." 

The section continues with the following sentence: "The commission 
shall enforce sections thirty-five to fifty-two, inclusive, and all orders, rules 
and regulations made pursuant thereto and other laws of the common- 
wealth relating to aeronautics, and shall have and may exercise for any or 
all of such purposes such powers and authority as may be reasonably 
necessary therefor." 

In view of all the foregoing statutes, it would appear that their full in- 
tendment, by implication if not by express words, would authorize the 
Massachusetts Aeronautics Commission to accept the property on behalf 
of the Commonwealth from the United States Government upon reason- 
able terms and conditions where such terms and conditions relate to the 
"maintenance and operation" of the premises as an airport, or are inci- 
dental thereto. It is within the commission's sole sphere to maintain and 
operate Bedford Airport under the CJeneral Laws, and the Common- 
wealth has committed itself to the operation of the premises as an airport. 

It is my opinion,- therefore, that the Massachusetts Aeronautics Com- 
mission has authority (1) to execute the "Application by Lessor" to the 
War Assets Administrator and to bind the Commonwealth to the terms 
and conditions thereof, and (2) to accept delivery of the instrument of 
transfer of the premises at Bedford Airport, thereby binding the Com- 
monwealth to its terms, reservations, restrictions and conditions. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. ' 25 

Examiners of Electricians — Only One Master Electrician's License under 

Certain Circumstances. 

Oct. 1, 1947. 
State Examiners of Electricians. 

Gentlemen: — You have asked my opinion as follows: 

"Have the State Examiners of Electricians, constituted under the pro- 
visions of section 32 of Chapter 13, of the General Laws, the right under 
Chapter 141 of said General Laws, to issue a 'Certificate A,' known as a 
master electrician's license, to a person who has qualified by examination, 
under said chapter and to subsequently issue another ' Certificate A' to a 
firm of which such person is one of its members or to a corporation of which 
such person is one of its officers, and upon the basis of the examination of 
such person, both licenses to be in force concurrently?" 

The applicable provisions of G. L. (Ter. Ed.) c. 141, as amended, do not 
contemplate that more than one "Certificate A" or master electrician's 
license shall be issued upon the passing of an examination by an applicant. 
The appHcation to be made, under section 3 (1) of said chapter 141, for a 
"Certificate A" should state whether it is an application by a person, a 
firm or a corporation, and the certificate when ultimately granted as a 
result of an individual's successful passing of an examination is required 
to "specify the name of the person, firm or corporation" which was the 
applicant. It is also required by said section 3 (1) that the certificate shall 
specify the name of the person passing the examination. 

It is plain from the foregoing considerations that the Legislature in- 
tended that as a result of the efforts of an individual in an examination only 
one certificate should issue. To whom it should issue will, in view of the 
provisions of said section 3 (1), depend upon whether the individual ap- 
plied for the certificate for himself, or for a firm of which he was one of the 
members, or for a corporation of which he was one of the officers. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Minimum Fair Wage Rates — Employees of Profit and Mon-Profit Hospitals. 

Oct. 2, 1947. 

Hon. Daniel J. Boyle, Commissioner of Labor and Industries. 

Dear Sir: — You state that a minimum wage board is now studying 
the matter of recommending minimum fair wage rates under G. L. (Ter. 
Ed.) c. 151, ^Hto8. 

In connection with such study you have asked my opinion upon two 
questions, which are as foUow.s: 

" 1. Are the employees of a hospital which is estabhshed and conducted 
on a non-profit basis, included in the description of 'occupation' contained 
in G. L. c. 151, $ 2, and therefore entitled to the benefits of a decree estab- 
lished under the provisions of said chapter? 

"2. Are the employees of a hospital which is established and conducted 
for profit included in the same description of 'occupation' referred to iiv 
questional?" 



26 • P.D. 12. 

While the purpose for which my opinion is asked is such that a formal 
opinion from the Attorney General is not required to be given, nevertheless, 
for the guidance of the said board in pursuing its studies, I answer your 
first question in the negative, in view of the opinion of the Supreme Judicial 
Court in the case of St. Luke's Hospital v. Labor Relations Commission, 
320 Mass. 467. 

As to your second question, the Supreme Judicial Court did not pass 
specifically upon the status of the employees of hospitals run for profit in 
connection with said chapter 151, nor can its view regarding such status 
be determined with certainty by any implication from the text of the 
opinion. In the light of what was said in opinions of Federal courts in 
other connections in Anierican Medical Assn. v. United States, 1942, 76 
U. S. App. (D. C.) 70, 317 U. S. 519, and in Jordan v. Tashiro, 278 U. S. 
123, and in National Labor Relations Board v. Central Dispensary & Emer- 
gency Hospital, 145 F. (2d) 852, referred to in St. Luke's Hospital v. Labor 
Relations Commission, 320 Mass. 467, 474, where the activities of those 
conducting hospitals for profit are considered as trade or business activities, 
it may well be that this class of hospital is included within the description 
of "occupation" referred to in question 1. In the absence of further 
judicial decisions in the Commonwealth relative to hospitals in the indi- 
cated connection, your second question cannot be answered categorically. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Summary Process — Power of the Governor. 

Oct. 2, 1947. 

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

Sir : — In a recent letter Your Excellency has directed my attention to 
St. 1947, c. 78, in which the Legislature has specifically authorized a stay 
of judgment and execution by the courts in actions of summary process to 
recover possession of premises occupied for dwelling purposes "for a period 
not exceeding four months." 

You have asked my opinion as to whether you have the power 

"under the Constitution, under G. L. c. 23, § 9H, or under any other law 
of the Commonwealth to issue regulations authorizing the courts, in their 
discretion, to grant tenants more time before evictions shall become 
effective." 

Article XLVII of the Amendments to the Constitution of Massachu- 
setts vests in the General Court the power to determine the manner and 
mode of pfoviding shelter in time of emergency and the officers to provide 
it. 

G. L. (Ter. Ed.) c. 23, § 9H, to which you have referred, provides in its 
first sentence : 

"Whenever the governor shall determine that an emergency exists in 
respect to food or fuel, or any other common necessary of life, including 
the providing of shelter, ... he may, with the approval of the council" 
designate certain named public officials "to act as an emergency commis- 
sion, and thereupon the commission shall have, with respect to the neces- 



P.D. 12. 27 

sary or nocessarios of life as to which the emergency exists, all the powers 
and authofity granted by the Commonwealth Defense Act of nineteen 
hundred and seventeen, being chapter three hundred and forty-two of the 
General Acts of nineteen hundred and seventeen, to persons designated or 
appointed by the governor under section twelve of said chapter three 
hundred and forty-two ..." 

However, an examination of the provisions of said St. 1917, c. 342, 
discloses that no power or authority to deal with judgments and executions 
in summary process with relation to dwellings was vested in the Governor 
by said chapter 342, either explicitly or by implication. 

Nor, in my opinion, does the power vested in the Governor and Council 
by said section 9H to make, during an emergency, rules and regulations 
for the carrying out of the purposes of the section authorize the Governor 
to extend the time of taking effect of said judgments and executions, for 
it is plain from the context that such rules are to be exercised only to 
implement such powers as may be employed by the said emergency com- 
mission, such powers flowing, as has been pointed out, from said St. 1917, 
c. 342. It would seem that" rules and regulations were not intended by the 
Legislature to be such as are to be directed to the courts, since their viola- 
tion is made punishable by fine or imprisonment, or both, further indicat- 
ing that they are to be rules for implementing the powers or authority of 
said emergency commission rather than regulations controlling judicial 
procedure. 

If the power to make rules and regulations were to be construed as 
general and indefinite in character, unconnected with or limited by the 
scope of the powers vested in the emergency commission derived from 
said St. 1917, c. 342, it could only be upon the theory that said section 9H 
delegates to the Governor a general power to change standing laws, in- 
cluding St. 1947, c. 78, without specifying with necessary particularity 
the nature of such changes and the objects for which they can be made. 
Such construction would, in my opinion, render said section 9H invalid 
(see Opinion of the Justices, 315 Mass. 761, 771). 

I am not aware of any provision of our Constitution or laws which gives 
the Governor authority to make such regulations as you refer to. 
Very tiTily yours, 

Clarence A. Barnes, Attorney General. 



Civil Service — Chief and Deputy Chief of Police of Barnstable — 
Military Substitute. 

Oct. 7, 1947. 

Commissioners of Civil Service. 

Gentlemen: — In a recent letter you have informed me of various 
facts relative to the positions of chief of police and of deputy chief of police 
of Barnstable. 

With relation to such facts you have asked my opinion as to whether 
the incumbents of these positions are properly holding office or whether 
competitive examinations should now be held to fill the positions. 

I am of the opinion that th(^ present incumbent of the office of chief of 
police is properly holding such office but that the present incumbent of 
the office of deputy chief of police is not properly holding the latter office. 



28 P.D. 12. 

The present incumbent of the office of chief of pohce was appointed chief 
as a mihtary substitute for the former chief upon, and retained the office 
through, a series of temporary transfers, authorized by your division under 
G. L. (Ter. Ed.) c. 31, § 16A, from his previous position as deputy chief. 

The previous chief returned from his leave of absence for miHtary serv- 
ice on January 22, 1943 (see report of your investigator of January 21, 
1947). Without having been reinstated he filed a resignation January 5, 
1944. Irrespective of the effect, if any, of the resignation, a year had 
elapsed on January 23, 1944, from the termination of the former chief's 
military service on January 23, 1943, the period allowed for his reinstate- 
ment at that time by St. 1941, c. 708, § 2. 

The applicable statute in force on January 23, 1944 (St. 1941, c. 708, 
§ 2), provided in part: 

"All appointments, transfers and promotions made on account of such 
leaves of absence shall be temporary only and the person so appointed, 
transferred or promoted shall be known as a military substitute; provided, 
that, notwithstanding aiiy provision of said chapter thirty-one to the con- 
trary, he may continue to serve in such office or position until the incum- 
bent is reinstated therein . . . and if the incumbent has not been reinstated 
as provided herein said military substitute shall continue in the position as 
though regularly appointed and his seniority rights shall date from his appoint- 
ment as such military substitute. ..." 

The language of the quoted portion of section 2 is definite and explicit 
as to the right of the military substitute to hold the office to which he has 
been elevated, irrespective of the civil service laws, if the former incumbent 
was not reinstated therein within one year from his discharge from military 
service. 

I cannot read into the quoted language a qualification with regard to 
the conformity of the military substitute's appointment to certain pro- 
visions of the civil service laws. The legislative intent as expressed in 
said section 2, as that section stood on January 23, 1944, does not warrant 
such a course. 

In the enactment on July 16, 1945, of chapter 610 of that year, amend- 
ing said section 2, the Legislature did manifest such an intent to limit the 
tenure of military substitutes and provided with relation to the succession 
of the substitute to the office or position of the earlier incumbent as follows : 

". . . if his appointment as such military substitute was made in ac- 
cordance with the civil service law and rules governing examination, cer- 
tification and appointment," (he shall) "continue in the position and his 
seniority rights shall date from his appointment as such military sub- 
stitute." 

These quoted provisions of said section 2, as contained in its amendment 
by St. 1945, c. 610, § 1, were not, however, in existence when the present 
chief of police assumed the office in his own right in 1944 under the au- 
thority of said section 2 as it then stood. His title to the office so assumed 
cannot now, in my opinion, be properly assailed. 

The position of the present incumbent of the office of deputy chief of 
police stands, on the facts which you have laid before me, upon an entirely 
different footing and he is not, in my opinion, entitled to hold the office 
in the absence of passing a competitive promotional examination (see 
G. L. (Ter. Ed.) c. 31, § 20, as amended). 



P.D. 12. 29 

The prosent incumbent of the office of deputy chief was not, upon the 
facts of which you have advised me, a mihtary substitute for one who had 
entered the service of the I'nited States. The deputy chief had not en- 
tered the mihtary or naval service on a leave of absence. His former 
position was merely temporarily without an incumbent and the present 
deputy was placed in it only bj^ means of temporary transfers of six months 
each, authorized by your division, from the position of a patrolman. He 
was not eligible for an appointment or promotion to the higher position 
except from an eligible list established for promotion by your division 
(G. L. (Ter. Ed.) c. 31, §§ 15, 20, as amended). If your authorization of 
temporary six months' transfers under said section 16A has ceased, the 
present incumbent is not now entitled to hold the office of deputy chief of 
police. 

Very truly yours, 

Clarence A. Barnes; Attorney General. 

Conservation — Gypsij Moths — Beimburseynent of Municipalities. 

Oct. 16, 1947. 
Hon. A. K. Sloper, Commissioner of Conservation. 

Dear Sir : — In a recent letter you have called my attention to certain 
provisions of the statutes relative to gypsy moth suppression as follows: 

"I respectfully request your opinion on the proper interpretation of 
the law relative to reimbursing cities and tow^ns for gypsy moth work. 
The law is found in G. L., c. 132, § 14, as amended by St. 1937, c. 415. 

"In the third paragraph of the law reference is made to towns having 
a valuation of less than six million dollars and sets their required spend- 
ing for moth work at one twenty-fifth of one per cent. The section goes 
on to say 'The commonwealth shall expend within the limits thereof for 
the suppression of said moths and tent caterpillars such an amount in 
addition as the forester, with the advice and consent of the governor, shall 
determine.'" 

With relation to the foregoing you have asked my opinion upon four 
questions. 

1. Your first question, which like all the others relates to the provisions 
of G. L. (Ter. Ed.) c. 132, § 14, as amended, reads: 

"Does this law eliminate towns under six million dollars in valuation 
from reimbursement by the Commonwealth?" 

I answer this question in the affirmative. 

2. Your second question reads : 

"Is it correct to assume that in such towns such assistance as they 
may need in moth suppression work is to be given in the nature of direct 
aid which is supervised by and paid for by the Commonwealth direct?" 

I answer this question in the affirmative. 

3. Your third question reads: 

"If the answer to the foregoing questions is in the affirmative, what is 
the significance of the last line in said third paragraph of section 14 which 
reads: 'The commonwealth shall reimburse cities and towns every sixty 
days'?" 



30 P.D. 12. 

The phrase to which you refer is apphcable to those cities and towns 
mentioned in paragraphs one and two of said section 14 as to which pro- 
vision is specifically made for reimbursement in such paragraphs. 

4. Your fourth question reads: 

"If said towns having a valuation under six million are not entitled to 
reimbursement, does the state forester have supervision of local moth 
expenditures, as referred to in paragraph four (last line) of said section 
14?" 

I answer this question to the effect that the provisions in the last line 
of paragraph 4 of said section 14, to which you refer in your question, 
relate to the approval by the Forester of sums for which the Common- 
wealth is to reimburse municipalities. They have no application to the 
expenditures of sums for which there is to be no reimbursement, such as 
those in towns of which the valuation is less than six million dollars. 

As to sums to be expended by the Commonwealth in' such towns, in 
addition to the municipalities' own expenditures, as provided in the 
phrase of paragraph 3 which reads ". . . the commonwealth shall expend 
within the limits thereof for the suppression of said moths . . . such an 
amount ... as the forester, with the advice and consent of the gov- 
ernor, shall determine," the initial determination of the amount of this 
latter class of sums rests with the Forester. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Labor — Overtime — G. L. {Ter. Ed.) c. 149, § 33A, as amended. 

Oct. 29, 1947. 

Hon. Daniel J. Boyle, Commissioner of Labor and Industries. 

Dear Sir : — I am in receipt of your letter asking several questions as 
to the interpretation of words and phrases in G. L. (Ter. Ed.) c. 149, 
§ 33A, as inserted by St. 1947, c. 649. 

The Attorney General, following a long line of practice and procedure 
established by his predecessors in office, does not give formal" opinions 
construing statutes or defining words therein when such construction or 
definition is not related to the performance of some duty presently re- 
quired of an officer of the Commonwealth. 

For your guidance, however, let me say that the employees referred to 
in said section 33A are not required by its terms to work forty hours in 
any one week, but their employment is restricted to not more than forty 
hours in any one week. 

The phrase "such additional service shall be compensated for as over- 
time" does not by the use of the word "compensated" indicate a legis- 
lative intent that "time off" may be employed in lieu of overtime pay. 

The last sentence of said section 33A indicates a legislative intent that 
an employee shall receive at least the same amount of pay per week after 
the acceptance of the said section 33A as he was receiving before such 
acceptance for a week's work of more hours. 

The phrase "unusual emergency" employed in said section 33 A appears 
to refer to an emergency which by its nature could occur but seldom. By 



P.D. 12. 31 

reason of its redundancy, the application of the phrase to any particular 
event would be somewhat difficult but not impossible upon a considera- 
tion of all factual elements involved. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Old Age Assistance — Budget — Standards Invalid — Support by Children. 

Oct. 31, 1947. 

Hon. Patrick A. Tompkins, Commissioner of Public Welfai-e. 

Dear Sir: — I am in receipt from you of a request for my opinion which 
reads as follows: 

"Your opinion is requested as to whether, as a matter of law, this de- 
partment has authority under G. L. (Ter. Ed.) c. 118A, as amended, to 
set up as part of the approved budgetary standard for the use of local 
boards of public welfare, the following provisions relative to the needs of 
an Old Age Assistance applicant or recipient who resides in the same house- 
hold with employed single children : 

"'Budgetary needs include food, household supplies and replacements, 
clothing, personal care, insurnnce if incurred, verified medical expenses, 
and special needs. ... In addition, a prorated share of the common 
household expenses of rent or carrying charges, fuel and light, is allowed. 

^" Basis of Prorating: When a recipient lives in the same home with an 
employable single child (ren), the recipient is allowed a share of the rent as 
paid up to $50 (monthly) and a share of the fuel and light figure as deter- 
mined by the State Standard Budget figures; e.g., OAA recipient, one 
employed child — Recipient's budget includes half of rent and half of 
State Standard Budget figure for fuel. In case of two employed children, 
recipient's budget includes >^ of these items. When there are two OAA 
recipients (husband and wife) and one employed child, the recipients are 
each allowed }^ o^ common household expenses.'" 

I am of the opinion that the Department of Public Welfare has no author- 
ity to set up the foregoing as part of the approvcnl budgetary standard to 
which you refer. 

In view of the legislative mandate contained in CJ. I^. (Ter. VA.) c. 118A, 
§ 1, as amended, that assistance to aged persons "shall be on the basis of 
need," and the provisions relative to determining the resources of aged 
persons set forth by the Legislature in G. L. (Ter. Ed.) c. 118A, § 2A, as 
amended, the foregoing part of the budgetary standard is directly con- 
trary to the legislative intent expressed in said sections. In said section 2A 
the Legislature has dealt compreluMisively with the matter of the resources 
of aged persons in connection with support by children, and the statutory 
provisions may not be enlarged or supplemented by an administrative 
department. 

Budgetary standards not in accord with statutory provisions are of no 
validity and may not be set up nor approved by the Department of Public 
Welfare. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



32 P.D. 12. 

Treasurer — Pay roll Procedure — Weekly Salary Payments. 

Nov. 13, 1947. . 

Hon. Laurence Curtis, Treasurer and Receiver General. 

Dear Sir: — I am in receipt of your letter of November 6, 1947, rela- 
tive to a proposed change in payroll procedure under St. 1946, c. 580, as 
amended, which calls for certain weekly salary payments. 

There is no provision of the statutes nor of your bond which requires 
that the payroll checks to which you refer must be prepared in your office. 

Nevertheless, the fact that such checks are prepared by a department 
other than your own or that certification as to correctness is made by some 
other department does not change or modify the duty and the responsibility 
now resting upon you to disburse only the proper amount of money to each 
State employee. 

The procedure which you outline as followed with regard to certain 
State institutions which draw their own checks against funds furnished by 
you pursuant to a warrant (G. L. (Ter. Ed.) c. 29, § 23), and with regard 
to the Employment Security Division which draws its own checks against 
funds deposited by you, appears to be proper in view of the provisions of 
said G. L. (Ter. Ed.) c. 29, § 23, with relation to State institutions, and of 
St. 1941, c. 685, §§ 52-55, with relation to the Employment Security Di- 
vision. 

Whether such new procedure as you have indicated makes the per- 
formance of your duty with respect to signing checks too hazardous, so 
that the adoption of such procedure would not be proper, is a question of 
fact peculiarly for your determination, and therefore question A in your 
letter cannot be answered by me. The whole problem involved would 
appear to be an administrative one. 

I answer your questions B (1) and (2) in the affirmative. 

As to your questions C and D, inasmuch as I do not perceive anything 
illegal in what you have set forth as to the proposed change with relation 
to payroll checks, though such change has no tendency to relieve you of 
any liability, nor as to the legality of the prevailing practices which you 
have outlined with relation to State institutions and the Employment 
Security Division, I cannot state to you that further legislation is pres- 
ently necessary or desirable. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Pharmacy — Examinations — Veterans. 

Nov. 19, 1947. 
Mrs. Irene K. Richards, Director of Registration. 

Dear Madam : — I am in receipt from you of a request for my opinion 
upon two questions propounded by the Board of Registration in Pharmacy. 
Your letter reads : 

"The Board of Registration in Pharmacy respectfully requests your 
opinion relative to St. 1945, c. 502, and St. 1947, c. 511, on the following: 

"1. Can the Board give examinations after January 1, 1948 for Assist- 
ant Registered Pharmacist? 



P.D. 12. 33 

"2. Does a veteran of World War II have to have his appHcation for 
examination into this Board on or before January 1, 1948 in order to 
take advantage of extension given to veterans, and must the veteran 
applying be a resident of Massachusetts in order to take our examination?" 

I answer the first qu(\stion in the affirmative and both the queries in 
the second question in the negative. 

G. L. (Ter. Ed.) c. 112, § 24, as it previously stood, was amended in 
1941 by chapter 52 of that year and as originally amended was to take 
effect on January 1, 1945. In 1943, by chapter 165 of that year, said 
chapter 52 was amended so as to take effect on January 1, 1948. By 
St. 1945, c. 502, said section 24 was again amended in certain vuiimportant 
particulars. These last amendments took effect in June, 1945, and it 
was further provided that the amendments made by said chapter 52 of 
1941 and chapter 165 of 1943 should take effect on January 1, 1948. 

1. In spite of the various amendments that have been made; in G. L. 
(Ter. Ed.) c. 112, §§ 24 and 24 A, ending with St. 1947, c. 511, the phrase- 
ology of said section 24 as so amended still provides that "the board may 
grant certificates of registration as assistants after examination ..." 

2. No provisions of the said section 24 as amended nor any provisions 
of said St. 1947, c. 511, or of St. 1946, c. 272, or other applicable statute, 
require specifically or by implication that a veteran, to be entitled to 
the advantages of an extension of time for applying for examination, 
must be a resident of Massachusetts or require that he must make appli- 
cation on or before January 1, 1948. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Labor Union — Definition. 

Nov. 21, 1947. 

Hon. Daniel J. Boyle, Commissioner of Labor and Industries. 

Dear Sir : — In accordance with your recent request for my opinion 
as to whether the Massachusetts Teachers Federation and its affiliated 
associations, the Citizens Union and the Tool Owners Union, or any one 
of them, is a "labor union" as the quoted words are used in the law en- 
titled "An Act to provide that labor unions shall file certain statements 
and reports with the Commissioner of Labor and Industries," which was 
enacted in 1946 under the initiative process of the Forty-eighth and 
Seventy-fourth Amendments to the Constitution, I advise you that an 
examination of the articles of organization, the constitutions and other 
documents relating to the purposes, obj(^cts and affiliations of the above- 
named organizations indicates that none of them come within the mean- 
ing of the words "labor union" as those words are employed in said law. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



34 P.D. 12. 

Retirement — Membership of Assistant District Attorneys in State Retire- 
ment System. 
tv Dec. 1, 1947. 

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

Dear Sir: — You have asked my opinion as to whether assistant dis- 
trict attorneys are ehgible for membership in the State Retirement System. 

I advise you that assistant district attorneys are ehgible for such mem- 
bership. 

Although assistant district attorneys serve under district attorneys, the' 
salaries of the assistants are paid by the Commonwealth. Such an assist-' 
ant falls within the second definition of "employee" set forth in G. L.^ 
(Ter. Ed.) c. 32, § 1, as amended, and as such an "employee" is entitled' 
to membership in the State Retirement System under the provisions of 
G. L. (Ter. Ed.)c. 32, §3(2) (ii). 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Eligibility of Certain Employees of University of Massachu- 
Qj setts to Membership in State Retirement System. 

Dec. 1, 1947. 

Hon. Laurence Curtis, Chairman, State Retirement Board. 

Dear Sir: — You have asked my opinion as to the eligibihty of certain 
employees of the University of Massachusetts, whose salaries are paid 
wholly from Federal grants to the University, to membership in the State 
Retirement Association. 

You have advised me relative to these employees that they are members 
of the staff of the University, appointed to positions authorized by the 
General Court and approved by the Division of Personnel and Standardi- 
zation, which fixes salary ranges. All members of the staff so appointed 
are employees of the Commonwealth, irrespective of whether they are 
paid from Federal grants made to the Treasurer of the University, as is the 
case with the "Purnell, Adams and Hatch grants," or from Federal grants 
made directly to the Treasurer of the Commonwealth and transmitted 
from there to the University (see VHI Op. Atty. Gen. 191, 194, 195, 
referred to in your letter). 

According to the facts which you have set before me, these staff em- 
ployees are not paid directly by the Federal Government but their regular 
compensation established by the Commonwealth is paid to them respec- 
tively by officers of the Commonwealth. 

Each of them comes within the second definition of "employee" set 
forth in G. L. (Ter. Ed.) c. 32, § 1, as amended: 

"Persons whose regular compensation is paid by the commonwealth 

}) 

"Regular compensation" is declared by the Legislature in said G. L. 
(Ter. Ed.) c. 32, § 1, cl. 32, to include: 

"Any part of such salary, wages or other compensation derived from 
federal grants." 



P.D. 12. 35 

In my opinion, it follows from the phraseology employed by the Legis- 
lature in said section 1 that an employee paid, as is a member of the said 
staff, directly by the Commonwealth, though from funds derived from a 
source created by Federal grants, is an "employee in active service" such 
as is eligible for membership in the State Retirement System under the 
provisions of G. L. (Ter. Ed.) c. 32, § 3 (2) (ii). 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Metropolitan District Commission — Traffic Regulating Signs. 

Dec. 1, 1947. 

Hon. William T. Morrissey, Commissioner, Metropolitan District Com- 
mission. 

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

"Your opinion is respectfully requested as to whether the Metropolitan 
District Commission is subject to the provisions of G. L. c. 89, §§ 8 
and 9, recjuiring traffic regulating signs, devices or signals to be approved 
by the Department of Public Works." 

The matter is not without some doubt, owing to the nature of the phrase- 
ology involved in the applicable statutes, and its ultimate determination 
may be for the judiciary in a case where a motorist is prosecuted for operat- 
ing in disregard of a traffic regulatory sign, device or signal erected by the 
Metropolitan District Commission on ways under its control. 

The commission has authority to make rules and regulations governing 
the movement of vehicular traffic on the ways under its jurisdiction (G. L. 
(Ter. Ed.) c. 92, §§ 35-38). These include boulevards which are public 
ways though not State highways (Medford v. Metropolitan District Com- 
mission, 303 Mass. 537, 538), parkways in reservations and connecting 
roadways or boulevards. None of them are highways, and section 9 of 
chapter 89, to which you refer, has no application to traffic signs of the 
Metropolitan District Commission. 

As to the traffic regulatory devices or signs erected by the commission 
on the ways under its control, I am of the opinion that disregard of their 
signals or directions may become an offense by virtue of some rule or regu- 
lation of the commission with relation to obedience to the directions or 
signals of such devices, irrespective of the approval of such devices by the 
Department of Public Works under G. L. (Ter. Ed.) c. 89, § 8. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Eligibility for Membership in State Retirement System of 
Certain Officers and Employees. 

Dec. 1, 1947. 

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

Dear Sir: — You have asked my opinion as to eligibility in the State 
Retirement System of "certain personnel under the jurisdiction of the 



36 P.D. 12. 

Adjutant General" who are paid directly by "the Finance Officer, U. S. 
Army, First Service Command" from Federal funds allotted to Massa- 
chusetts by the National Guard Bureau, a Federal agency. 

The positions in question appear from a document dated July 28. 1947, 
which you have submitted to me, to be those of State Maintenance Officer, 
Caretakers of Massachusetts National Guard and United States Property 
Officer for Massachusetts. This latter officer, you inform me, is paid $4,000 
from funds allotted to this State by the said National Guard Bureau, a 
Federal agency, and $1,000. from an appropriation made by our Legis- 
lature. You further inform me that the United States War Department 
and the Federal General Accounting Office have rules that the incumbents 
of the foregoing positions are not Federal employees. 

The holders of the foregoing positions who are paid directly by the 
Federal Government are not eligible for membership in the Retirement 
System, irrespective of the fact that they may be in the employ of the Com- 
monwealth. Their regular compensation is not paid to them by the Com- 
monwealth, nor is its source derived from a Federal grant. They do not 
fall, as do the staff officers of the Massachusetts University, within the 
definitions of employees eligible for membership in the State Retirement 
System. 

An exception to the foregoing exists in the case of the United States 
Property Officer for Massachusetts. Upon the facts which you have laid 
before me, he is an officer of the National Guard and receives regular com- 
pensation upon an appropriation by the Legislature directly from the 
Commonwealth in the amount of $1,000. Irrespective of the fact that he 
is also paid a further sum by the United States, he is eligible to member- 
ship in the State Retirement System, his deductions for contributions 
thereto to be based upon the said sum of $1,000. 
Very truly yours, 

Clarence A; Barnes, Attorney General. 



Auditor — Authority — Accounts of Mystic River Bridge Authority. 

Dec. 2, 1947. 

Hon. Thomas J. Buckley, Auditor of the Commonwealth. 

Dear Sir: — You have asked my opinion as to the authority of the 
Department of the State Auditor to audit the accounts of the Mystic 
River Bridge Authority, which was created under the provisions of St. 
1946, c. 562. 

I am of the opinion that you do not possess such authority. 

Although G. L. (Ter. Ed.) c. 11, § 12, in general terms gives to the Au- 
ditor authority to audit "the accounts of all departments, offices, commis- 
sions, institutions and activities of the commonwealth," the Legislature 
in said chapter 562 relative to said Mystic River Bridge Authority has by 
necessary implication excepted such Authority, even if it be considered an 
activity of the Commonwealth, from the scope of the authority given the 
Auditor by the general statute relating to his powers and duties above 
referred to. 

The Legislature in section 14 of said chapter 562 has specifically provided 
that: 

"... The authority shall cause an audit of its books and accounts to 
be made at least once in each year by certified public accountants and the 



P.D. 12. ■ 37 

cost thereof may bo treated as a part of the cost of constriu'tioii or of opera- 
tion of the hrido-e. Such audits shall he deemed to be public records within 
the meaning of chapter sixty-six of the General Laws. ..." 

In section 19 of said chapter 562, the Legislature has further provided: 

"All other general or special laws, or parts thereof, inconsistent here- 
with are hereby declared to be inapplicable to the provisions of this act." 

It is not reasonable to suppose that the Legislature would require the 
Authority to incur the expense of the audit specifically designated in said 
section 14 if an audit by the State Auditor were also to be mad(>. Reading 
the quoted provisions of said sections 14 and 19 together with the whole 
statute, their context indicates a legislative intent to provide for the audit 
mentioned in said section 14 in place of an audit by the State Auditor. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Maintenance — Director of Personnel and Standardization — Veterans. 

Dec. 15, 1947. 

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

and Finance. 

Dear Sir: — I am in receipt from you of a letter asking my opinion on 
the following questions: 

"1. Did St. 1945, c. 677, authorize the Director of Personnel and Stand- 
ardization to establish on its effective date the value of maintenance for 
those veterans who had been retired, under the provisions of G. L. c. 32, §§56, 
57 or 58, prior to the effective date of St. 194-5, c. 677. 

"2. If the answer to the first question is yes, did St. 1945, c. 677, require 
the Director of Personnel and Standardization to establish such values for 
such veterans who had retired prior to its effective date." (Italics ours.) 

I answer your first question in the negative. 

Accordingly, your second question, as worded, does not require a cate- 
gorical answer. Prior to 1943, G. L. (Ter. Ed.) c. 32, §§ 56, 57 and 58, 
provided for the retirement of certain veterans and established as the rate 
of retirement compensation "one half the regular rate of compensation 
paid to them at the time of retirement." 

By St. 1943, c. 514, an allowance for maintenance as previously received 
was for the first time added to the amount of the retirement allowance. It 
was specifically provided by section 4 of said chapter 514 that the chapter 
should apply to the retirement allowances of veterans subject to said sec- 
tions 56, 57 and 58 who had been "retired since December thirty-first, 
nineteen hundred and twenty, and prior to the effective date of this act, 
as well as to tho.se retired on or after said effective date." 

It was held in an opinion of a former Attorney General, with which I 
concur (1942-4 Op. Atty. Gen. 73, 74), that such change in the amount of 
retirement compensation as that made by said chapter 514 required by its 
phraseology a recomputation of the retirement allowances of veterans 
retired after 1920 so as to increase their compen.sation after the effective 
date of said St. 1943, c. 514, but did not have such retroactive force as to 
require a payment to such veterans of the difference between allowances 



38 , P.D. 12. 

figured upon the new basis and those figured on the old for years prior to 
1943. 

In 1945 the Legislature, by an amendment to said G. L. (Ter. Ed.) c. 32, 
§ 56, as previously amended in 1943, decreed the mode by which an allow- 
ance for maintenance was to be figured and added to said section 56 as it 
stood the following paragraph (St. 1945, c. 677) : 

"Any allowance for maintenance referred to in this section or in section 
fifty-seven or fifty-eight, if received otherwise than as a cash payment, shall 
be in an amount equal to the value thereof as fixed by the director of per- 
sonnel and standardization if the veteran is in the employ of the common- 
wealth, by the county personnel board if the veteran is in the employ of a 
county, and by the retiring authority if the veteran is in the employ of a 
city, town or district." 

This amendment did not, like that of St. 1943, c. 514, specify veterans 
previously retired to whom its terms should apply in any respect. It is 
most significant that the Legislature employed the verb "is" throughout 
the quoted amendment, as in the phrases "if the veteran is in the employ 
of the commonwealth"; "if the veteran is in the employ of a county"; 
"if the veteran is in the employ of a city ..." 

A statute is not to be interpreted as operating retroactively in the ab- 
sence of express provisions indicating a legislative intent to that effect. 
Hanscom v. Maiden, etc., Gas Light Co., 220 Mass. 1, 2, 3. O^Donnell v. 
Registrar of Motor Vehicles, 283 Mass. 375, 379. 

In my opinion, the phraseology of the last paragraph of said G. L. (Ter. 
Ed.) c. 32, § 56, added by said St. 1945, c. 677, does not authorize or require 
the Director of Personnel and Standardization to establish on the effective 
date of said St. 1945, c. 677, the value of maintenance for those veterans 
who had been previously retired, the valuation already set up as to their 
maintenance remaining without fluctuation, but the sajd director was 
authorized and required, after the effective date of said chapter 677, to 
establish such values for maintenance to be paid as part of the compensa- 
tion of veterans thereafter retired. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Insurance - — Data for Rate-making Purposes — Rate-making. 

Dec. 15, 1947. 

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

Dear Sir: — With relation to St. 1947, cc. 614 and 641, you have asked 
my opinion upon several questions in regard to the phrase 

"Every insurer shall file with the commissioner or his designated repre- 
sentative ..." 

certain specified data used for rate-making purposes. 

1. Your first question reads: 

"I respectfully request your opinion as to whether the phrase, 'or his 
designated representative' refers back to the word, 'commissioner'." 



P.D; 12. 39 

I answer this question in the affirmative. 
2. Your second question reads : 

"If the answer to the above question is in the affirmative and the 
Commissioner desij^nates a rating orjianization as his representative, may 
he require the information that is filed with th(» rating organization by 
insurance companies to b(> available to the public during business hours?" 

I am not aware of any provisions of the applicable^ statutes which au- 
thorize the Commissioner to make such a requirement of his "designated 
representative." The statute itself, in section 6 (a), covers the subject of 
the public's right to inspection and does not appear to require any imple- 
mentation by th(^ Commissioner. 
'\ .3. Your third question reads: 

"If the Commissioner designates a rating organization as his n^pre- 
sentative, may he install a representative of the Insin-ance Department at 
the office of the rating organization in order that such representative may 
answer questions, furnish information and otherwise serve the public?" 

There does not appear to be any authority vested in thc^ Commissioner 
to install a representative of the Division of Insurance in the office of his 
"designated representative" for the purposes described in your question. 
Whoever the Commissioner elects to designate as his repi'csentative 
should discharge as part of. the functions as such representative the tasks 
mentioned in your question. His principal should not, through some 
other representative or agent, duplicate the work incidental thereto or 
perform said work for the "designated representative" which is properly 
within the scope of the delegated authority which he possesses b}- virtue 
of said designation. 

With relation to section 7, subdivisions (a) and {h), of both chapters 614 
and 641, which are in the same phraseology and are set forth in your 
letter, you have asked. my opinion on the following questions: 

4., Your fourth question reads: 

■ "In order that I may properly administer the provisions of chapt(>rs 614 
and 641 I respectfully request your opinion as to whether or not the C'om- 
missioner is required to take any action on a rate or a rating plan immedi- 
ately upon its being filed." 

I answer this question in the negative. There is nothing in the pro- 
visions of said subdivisions which requires the Commissioner to take any 
action on a rate or a rating plan immediately upon its being filed. 

■ The words used by the Legislature in this connection — "If at oxix time 
the commissioner finds that a filing does not meet the requirements of this 
chapter, he shall, after a hearing . . . issue an order . . . " do not indicate 
a legislative intent to require of the Commissioner the duty to review every 
filing immediately upon its receipt or to review upon his omti motion at 
any particular time, or indeed to review it at all imless he has reason to 
believe that it does not meet the statutory re(iuirements, or unless an 
application for a hearing with respect to such filing is made to him under 
the terms of said section 7, subdivision ih). 

. -5. Your fifth question reads: 

"How long a period of time may elapse after a filing has been made 
before the Commissioner is obligated to review the filing?" 



40 P.D. 12. 

In view of the opinion which I have expressed in connection with the 
fourth question, this question cannot be answered categorically. If the 
Commissioner has no reason to believe that a filing does not meet the 
statutory requirements, it would not appear to be mandatory that he 
should review it. If he has reason so to believe, he should act expeditiously. 

6. Your sixth question reads: 

"May the Commissioner permit a filing to be effective without review 
unless and until a complaint is made with him in the manner outlined in 
section 7 (b) by any person aggrieved?" 

It follows from the considerations which I have expressed that unless 
the Commissioner has reason to believe that a filing does not meet the 
statutory requirements, he may, as you phrase it, permit a filing to be 
effective without review unless and until a complaint is made with him in 
the manner outlined in section 7 (6) . 

I am confirmed in my opinion with relation to your last five questions 
by the fact that the Legislature, prior to the passage of the statutes in 
question, rejected proposed amendments to them which required exami- 
nations of filings by the Commissioner within a specific period or as soon 
as reasonably possible after filing. In the form in which said section 7 was 
finally enacted by the General Court, it would appear to have been the 
legislative intent to leave the matter of review of filings to the sound dis- 
cretion and judgment of the Commissioner except when action was in- 
stituted under subdivision (h) of said section 7. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Motor Vehicles — Registration Plates — Fire Engines — Apparatus. 

Dec. 19, 1947. 
Hon. Rudolph F. King, Registrar of Motor Vehicles. 

Dear Sir: — You have asked my opinion as to whether you maj^ 
assign to the Boston Fire & Police Notification Company a special "M" 
registration plate for a motor vehicle owned and operated by them. 

You inform me that the "M" plates are assigned under the provisions 
of G. L. (Ter. Ed.) c. 90, § 2, which in its apphcable part reads: 

"The registrar shall furnish ... to every person whose motor vehicle 
is registered . . . two number plates . . . provided, that number plates 
assigned to ambulances, fire engines and apparatus, police patrol wagons 
and other vehicles used by the police department of any city or town or 
park board solely for the official business of such department or board may 
be of a distinctive type or types." 

It is not provided in the above-quoted part of said section 2 that "fire 
engines and apparatus" therein referred to are those used by fire depart- 
ments, as it is provided with relation to "police patrol wagons and other 
vehicles" that such vehicles are those "used by the police department of 
any city or town or park board solely for official business." It would 
appear, therefore, that the Legislature did not intend to exclude from the 
privilege of special registration "fire engines and apparatus" privately 
owned if, in the judgment of the Registrar, their use for the benefit of the 
general public warranted the granting to them of the privilege of a dis- 
tinctive type of plate. 



P.D. 12. 41 

Whether in any given instance a particular motor vehicle is of such a 
character as to come within the meaning of the words "fire engines and 
apparatus" is a question of fact peculiarly for your determination in the 
exercise of your best judgment. The Attorney General does not pass upon 
questions of fact. 

If the facts are, as set forth in a communication to you which you iiave 
sent me with your letter, that the particular motor vehicle referred to in 
your letter is "equipped with fire fighting apparatus" a.s well as short 
wave radio and in the usual course of its employment n^sponds to fire 
alarms and at fires gives a protective service to property, it would not be 
unreasonable to regard such vehicle as falling within the sweep of the words 
"fire engines and apparatus" as used in said section 2. However, as I 
have stated, a decision as to just what are the facts relative to the motor 
vehicle in question and its use is for your determination. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Old Age Assistance — Exemptions — Authority of Department of Public 

Welfare. 

Dec. 29, 1947. 

Hon. Patrick A. Tompkins, Commissioner of Public Welfare. 
Dear Sir: — I am in receipt from you of the following letter: 

"Your opinion is requested as to whether the Department of Public 
Welfare can give written approval, as required in section 4 A of Chapter 
118A,. to a local board of public welfare to bring action under that section 
against the executor of the estate of an Old Age Assistance client in ac- 
cordance with the following set of facts: 

Recipient received Old Age Assistance from the town of Plympton from 
1940 until her death in 1947. Since May, 1942, when section 4A became 
effective, the client has received $2,900 in Old Age Assistance payments. 
Under the will, the client bequeathes her real estate, which is assessed for 
slightly less than $3,000, to a cousin. 

The town of Plympton has requested permission to bring action under 
section 4A. This Department is not clear as to what disposition should 
be made of the request in view of the language in section 4A: 

' ... If such person or his estate is in possession of funds not otherwise 
exempted thereunder.' " 

Prior to the effective date (April 30, 1942) of St. 1941, c. 729, § 5, which 
added section 4A.to G. L. (Ter. Ed.) c. 118A, there could be no recovery 
by a town from the estate of a deceased aged person of sums paid such 
person for old age assistance in the absence of fraud. (See Worcester v. 
Quinn, 304 Mass. 276; Hinckley v. Barnstable, 311 Mass. 600.) 

Said section 4 A, as so added, reads: 

"A person, his executor or administrator shall be liable in contract to 
any town for expenses incurred by it for assistance rendered to such person 
under this chapter if such person or his estate is in possession of funds not 
otherwise exempted thereunder. No action shall be brought under this 
section in behalf of a town except with the written approval of the de- 
partment." 



42 P.DV 12. 

From the facts as you have stated them, I assume that the deceased 
had real estate which, corhputed on the basis of assessed valuation, did 
not exceed an average of three thousand dollars during the five years 
preceding his application for old age assistance. 

Whether the deceased held this real estate in fee or whether he had only 
an equitable interest therein, you do not state in your letter. 

No provision of said chapter 118A specifically or by implication exempts 
ownership in fee of land from the possibility of disqualifying an aged 
person from receiving assistance. 

Ownership of an equity in vacant land from which no income is derived 
and ownership of an equity in real estate upon which an applicant resides 
or is prevented from residing thereon by physical or mental incapacity 
when such equity "exceeds an average of three thousand dollars in value 
on the basis of assessed valuation over a period of five years" does not 
preclude the aged owners of such equities from receiving assistance, if 
they give a bond (G. L. (Ter..Ed.) c. 118A, § 4, as amended). 

Although the precise meaning of the phrase "funds not otherwise ex- 
empted thereunder" as used in said section 4A is by no means plain in 
view of the phraseology of said section 4, I am inclined to the opinion that 
a parcel of real estate o^\^led in fee by one receiving old age assistance 
cannot be said upon his death to be outside the sweep of the phrase "funds 
not otherwise exempted thereunder" as used in said section 4A. (See 
opinion of Attorney General to Commissioner of Public Welfare^ June 24, 
1947.) 

It follows that if the real estate in question was owned in fee, you are 
not prohibited as a matter of law from giving your approval under said 
section 4A to the bringing of an action by a toAvn to recover for expenses 
incurred by it for assistance rendered to the said aged person while living. 

Inasmuch, moreover, as the intent of the Legislature in employing the 
above-quoted phrase in section 4 A, as I have stated, is not plain, and an 
authoritative construction may well be made by the courts in litigation 
presented to them, any doubt concerning such construction should be re- 
solved by you in favor of the town so that a suit may be instituted by 
which the meaning of said section 4 A may finally be determined by judicial 
decision. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Commissioner of Probation — Salary — Step-rate Increases — Rules and 
Regulations of Commission on Administration and Finance not Ap- 
plicable. 

Dec. 29, 1947. 

Board of Probation. 

Gentlemen : ^ In a recent letter you have asked me with relation to 
the Commissioner of Probation, two questions as follows: 

"1. When the board of probation has voted to increase the salary of 
the commissioner of probation, pursuant to the provisions of G. L. (Ter. 
Ed.) c. 276, § 98, are the governor and council without power to approve 
such salary at such increased rate in the absence of an appropriation by 
the General Court providing for the payment of such increase? 



P.D. 12. 43 

"2. Is the office of commissioner of probation subject to classification 
under the provisions of G. L. (Ter. Ed.) c. 30, § 45, and is the incumbent 
entitled to the step-rate salary increases provided for by St. 1947, c. 613? " 

In answer to .your first question, I advise you that the salary of the said 
Commissioner may be approved when increased by the Governor and 
Council under G. L. (Ter. Ed.) c. 276, § 98, as amended, but that in the 
absence of an appropriation covering such increase by the General Court 
no money will be availabl(> for paying the same. Pi-ovisions such as are 
found in St. 1947, c. 261, § 6, have been incorporated by the Legislature in 
general appropriation bills and perhaps will be in the future, and make 
plain the non-availability of appropriations for changes in salary ranges 
not provided for by the Legislature in such bills. 

In answer to your second question, I advise 3^ou that the position of 
Commissioner of Probation b(>ing one the salary of which is "required by 
law to be fixed subject to the approval of the governor. and council" (see 
G. L. (Ter. Ed.) c. 276, § 98; c. 30, § 46, as amended), it is not subject to 
the rules and regulations of the Commission on Administration and Finance 
as to salary (V Op. Atty. Gen. 287; Opinion of Attorney General to the 
Governor and Council, Oct. 24, 1927). 

The provisions of St. 1947, c. 613, § 2, referring to a step-rate increase 
in salary for "emplo.yees in offices and positions classified under sections 
forty-five to fifty, inclusive, of chapter thirty of the General Laws, who 
on the effective date of this act shall have been receiving the maximum 
salary for the grade they hold. . . . ," have no relation to the Commis- 
sioner of Probation since, as I have stated, he holds a position not subject 
to classification for salary regulation by the Commission on Admiriistra- 
tion and Finance and hence can not come within the statutory description 
of one "receiving the maximum salary for the grade" held. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

■ Motor Vehicle — Transportation of School Children — School Bus — 
Authority of Department of Public Utilities. 

Dec. 31, 1947. 

Hon. Edward N. Gadsby, Chairman, Department of Public Utilities. 

Dear Sir: — I am in receipt of your letter asking my opinion upon the 
question of — 

"whether a motor vehicle engaged in the transporting of school children 
can be held to operate under a certificate of convenience and necessity or 
be engaged in charter service or special service." •'/"',' 

I assume that the motor vehicle to which you refer is a school bus 
operated under a contract with a municipality or a municipal board, as is 
the usual mode of operating transportation for school children. 

It is plain that such a school bus is not now included within the terms 
"charter service" or "special service." The terms of St. 1947, c. 483, 
which you quote in your letter, expressly forbid such inclusion. It follows 
that the jurisdiction which the department has over motor vehicles op- 
erated in "charter service" or "special service" (G. L. (Ter. Ed.) c. 159A, 
§ 11 A, as amended) does not now exist with regard to such school buses. 



44 P.D. 12. 

The operation of such a school bus does not appear to be described by 
any of the terms of G. L. (Ter. Ed.) c. 159A, § 1. That being so, it does not 
require any of the Hcenses provided for in chapter 159A, sections 1 to 6, and, 
accordingly, no certificate of public convenience and necessity issued under 
G. L. (Ter. Ed.) c. 159A, § 7, is required for the operation of the motor 
vehicle as a school bus. 

You have informed me that a certain bus in Greenfield is operated part of 
the time as a motor vehicle carrying passengers, otherwise than as a school 
bus, in such a manner as to fall within the terms of said section 1 and so 
has been licensed and given by your department a certificate of convenience 
and necessity, but that part of the time the said vehicle is operated as a 
school bus. I am of the opinion that when operated as a school bus, your 
department has no authority to deal with the vehicle by virtue of sections 
7 and 8 of said chapter 159A. 

If it is desired to bring school buses within the jurisdiction of your de- 
partment, resort should be had to the Legislature. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Board of Collegiate Authority — Powers — School of Pharmacy — St. 1947, 

c. 652. 

Jan. 14, 1948. 

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

Dear Sir: — You have asked my opinion as to the authority of the 
Board of Collegiate Authority formed under the provisions of St. 1947, 
c. 652, to pass the following vote with relation to an application filed in 
May, 1947, under the terms of St. 1943, c. 571: 

^^ Voted: That the Boston School of Pharmacy complies with the re- 
quirements of the Board of Collegiate Authority and is, therefore, author- 
ized to confer the degree of Bachelor of Science in Pharmacy as provided 
by Chapter 571 of the Acts of 1943." 

I am of the opinion that the board did not have authority to act upon 
the said application or to pass the vote in question. 

A Board of Collegiate Authority was established by St. 1943, c. 549, 
§ 1, which inserted a new section 3 A in chapter 15 of the General Laws. 
Under section 3 of said chapter 549, which amended G. L. (Ter. Ed.) c. 69, 
by inserting a new section 30, a mode was provided by which action 
through the board upon proposed charters or amendments thereto might 
be instituted and authority to grant degrees might be obtained by an 
educational institution after investigation and hearings. 

By St. 1943, c. 571, a statute special in its nature was enacted whereby 
the Boston School of Pharmacy was authorized to obtain authority to 
grant a degree in science by another and shorter method. Said chapter 
571 reads: 

"An Act authorizing the Trustees of the Bo.ston School of Pharmacy to grant 

THE Degree of Bachelor of Science in Pharmacy. 
Be it enacted, etc., as follows: 

"The trustees of the Boston School of Pharmacy, a corporation organized under 
-chapter one hundred and eighty of the General Laws, are hereby authorized to confer 



P.D. 12. 45 

the degree of Bachelor of Science in I'liarmacy, if and when said .school complie.s with 
the requirements of the board of collegiate authority establi.shed by chapter five hun- 
dred and forty-nine of the acts of nineteen hundred and forty-three." 

No action was taken by the Collegiate Authority established by St. 
1943, c. 549, upon an application filed with it by said School of Pharmacy 
indicating that said school had complied with said Authority's require- 
ments. 

In 1947, by chapter 652 of that year, effective in September, 1947, the 
Legislature amended said G. L. (Ter. Ed.) c. 15, by striking out section 
3A, which had established a Board of Collegiate Authority, and inserting 
a new section 3A in its place, which likewise estal)lishod a Board of Col- 
legiate Authority. The membership of the new Authority so established 
was not the same as that of the old Authority in that its membership was 
enlarged, and although its powers are the same as those of the old board 
it does not appear to have been the legislative intent that it should be a 
continuation of the old Authority. 

The new Authorit}^ cannot be said to be the "board of collegiate au- 
thority established by chapter five hundred and forty-nine of the acts of 
nineteen hundred and forty-three" as the quoted words are employed in 
said St. 1943, c. 571. 

Since the Board of Collegiate Authority established b}^ the Acts of 1943 
has passed out of existence without action upon the application of said 
School of Pharmacy under said chapter 571, the present board was without 
authority to act upon the said application or to pass the said vote. 

The said School of Pharmacy having failed to establish its compliance 
with the requirements of the old Authority before such Authority passed 
out of existence, it can now obtain the right to grant degrees only by 
following the method prescribed for all educational institutions under 
said St. 1947, c. 652. ' 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veteran — Dependent — Wife — Mother. 

Jan. 21, 1948. 

Hon. Otis M. Whitney, Chairman, Military Affairs Committee of the 

Executive Council. 

Dear Sir : — You have asked my opinion as to whether one Catherine 
Marselis is as a matter of law a "dependent" of her son Oliver who is, I 
am advised, a veteran of World War II, so that she is entitled as such 
dependent of her son to veterans' benefits derived from his status under 
the provisions of G. L. (Ter. Ed.) c. 115, as amended by St. 1946, c. 584. 

You have not informed me of any facts which are before you relative 
to the matter. 

I am informed by the office of the Commissioner of Veterans' Services 
that the said Catherine is the wife of a veteran of World War I ; that her 
husband wilfully neglects and refuses to support her; that her said son 
OHver made over to her in 1943 for her support as a "dependent" his 
allotment from his pay while in the service of the United States Army, 
which service ended in 1946. 

The Attorney General does not pass upon questions of fact. The facts 



46 P.D. 12. 

relative to the present matter are peculiarly for the determination of your 
committee. 

Assuming, however, for the purposes of this communication that the 
facts are as set forth above and that you further find that the said Cathe- 
rine is now destitute and without means of support except such as might 
be derived from her son, I am of the opinion that upon such facts the said 
Catherine is a "dependent" of her said son and as such is entitled to the 
benefits flowing from his status as a veteran of World War II under said 
chapter 115, as amended. 

It is true that said Catherine is not entitled to the benefits derived from 
the status of her husband as a veteran of World War I, since her husband 
"wilfully refuses and neglects to support her" (G. L. (Ter. Ed.) c. 115, as 
amended, § 5, par. 3). 

Nevertheless, her husband's failure to support her has, I assume, left 
her destitute of means of sustenance and unable to support herself. If 
this be the fact, the duty to provide for her support would appear to fall 
upon her said son Oliver (see G. L. (Ter. Ed.) c. 273, § 20). This being 
so and it also appearing that her dependency has been recognized by her 
son, through his providing his said allotment for her as a dependent, I am 
of the opinion that she is, as a matter of law, to be regarded as the said 
son's "dependent" and to be entitled as such to veterans' benefits derived 
from his status as a veteran of World War II, irrespective of the existence 
of her husband or the nature of the latter's conduct. 

A mother is within the definition of "dependent" given in section 1 of 
said chapter 115 and when destitute, even if such destitution is caused by 
acts of a veteran husband, is entitled to the benefits provided by said 
chapter 115 which are occasioned by reason of the status of her son as a 
veteran. 

One of the purposes of said chapter 115, as amended, would appear to 
be the prevention of the stigma of being upon relief attaching to certain 
relatives of well-behaved veterans, and it should be construed when pos- 
sible to effect such purpose. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Acting Commissioner of Conservation — Authority. 

Jan. 21, 1948. 

Hon. Edgar L. Gillett, Acting Commissioner of Conservation. 

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

"Will you kindly advise me whether or not the writer, as Acting Com- 
missioner for the Department of Conservation due to the resignation of 
former Commissioner Archibald K. Sloper, whose resignation has been 
accepted by the Governor, has the authority under the law as Acting Com- 
missioner to make either temporary or permanent appointments, or to 
approve temporary or permanent appointments made by the various 
Directors within the Department under their statutory powers." 

You have informed me that you were the person designated by the 
former Commissioner of Conservation to act in his stead during absence 
or disability and that no new commissioner has been appointed since the 
resignation of the commissioner. 



P.D., 12. 47 

Under the provisions of G. L. (Ter. Ed.) c. 30, § 6, by virtue of which 
you Avere so designated, you have "no authority to make permanent 
appointments or removals." The making of a. temporary appointment 
would be within your power (see 1943 Op. Atty. Gen. 41, 42). 

The commissioner is given under G. L. (Ter. Ed.) c. 21, as amended, 
power to approve or disapprove certain appointments authorized to be 
made by the directors of various divisions in the Department of Conser- 
vation. The giving or withholding of such an approval is not the act of 
making an appointment or r(>m()val and so does not come within the limi- 
tation upon the po\\(M' of an acting commissioner above set forth as de- 
scrilied in said G. L. (Ter. Ed.) c. 30, § 6. Consequently, approval or dis- 
approvalof such appointments may be given by you. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Correction — Defective Delinquent — Parole. 

Jan. 29, 1948. 
Mr. James E. Warren, Superintendent, State Farm: 

Dear Sir: — The Commissioner of Correction has just asked me to 
reply to your letter to him of January 8, 1947. 

Let me say that, irrespective of the decision of the probate court refus- 
ing to discharge a defective delinquent, if, in the opinion of tw^o psychi- 
atrists appointed by you, such a delinquent is a fit person for parole, you 
may present him "to the parole board for consideration for parole by said 
board" under the provisions of G. L. (Ter. Ed.) c. 123, § 118A, inserted 
by St. 1947, c. 684. 

Said section 1 18A provides a method of removing defective delinquents 
from your custody even if a discharge is refusedby a probate coiu't. 

Very trul}^ yours, • - ^ . • 

Clarence A. Barnes, Attorney General. 



Veteran — Settlement — Second Enlistment. 

" ' -Jan. 30, 1948. 

Dr. Alton L. Pope, Deputy Commissioner of Public Health. 

- Dear Sir: — In reply to your letter of recent date relative to the 
settlement of one Arthur M. Kelly, I advise you that if said Kelly actually 
resided in Maiden when he was received into the office of an assistant 
surgeon in the Navy, upon such facts as you have stated, he would, in 
my opinion, have acquired a settlement in Maiden under the 'provisions 
of G. L. (Ter. Ed.) c. 116, § 1, cl. 5. 

I am informed that one enlisted in the United States Naval Reserve, 
who is to receive an appointment as an officer, first receives a "Notice of 
Separation from U. S. Naval Service," which notice is on- what is called 
in the Navy Form 533 and which by its terms purports to be a discharge 
from the service ; that thereafter, upon entering the duties of the office 
to which he has been appointed, he is sworn into the service afresh. 
• Although the matter is not entirely plain, since there is no judicial 
decision in Massachusetts upon the exact question involved, I am of the 



48 P.D. 12. 

opinion that by the re-entry into the service under the appointment as 
assistant surgeon the sailor may be held to have "enlisted" in the United 
States service and such return to service to be an "enlistment" as the 
quoted words are used in G. L. (Ter. Ed.) c. 116, § 1, cl. 5, referred to in 
your letter. Further, it would appear to be an established principle of 
law in this Commonwealth that, under a statute such as the one applicable 
here, a second enlistment from a place of actual residence different from 
that held at the time of a first enlistment establishes a settlement at the 
place of actual residence where the second enlistment took place. Gran- 
ville V, Southampton, 138 Mass. 256. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Constitutional Law — Governor and Council — Meetings. 

Feb. 6, 1948. 
The Legislative Committee on State Administration. 

Gentlemen : — I am in receipt from you, through the clerk of your 
committee, of the following letter: 

"There is now pending before the Committee on State Administration 
the following bills: House No. 1367 and House No. 1551, copies of which 
are enclosed and both of which have to do with open meetings of the Execu- 
tive Council. It has been suggested to this Committee that possibly these 
bills would be unconstitutional and acting on that suggestion, the Com- 
mittee has voted to request an opinion from the Attorney General as to 
the constitutionality thereof in writing. 

"We will appreciate your consideration of these matters and your report 
to us as soon as convenient to you." 

The two House bills which you have laid before me are identical in their 
phraseology and read as follows: 

"An Act providing that all Meetings of the Executive Council be open to the 

Public. 

"Be it enacted by the Senate and House of Representatives in General Court assembled 
and. by the authority of the same, as follows. ■ 

"Chapter 6 of the General Laws is hereb}' amended by inserting after section 4, as 
appearing in the Tercentenary Edition, the following new section: — 

"Section I^A. The general pubHc shall not be excluded from the room or from any 
place in which the governor shall hold or keep a council as provided by Article I of 
section eleven of chapter eleven of the constitution." 

I am of the opinion that either of these bills if enacted into law would be 
unconstitutional as an infringement of the powers of the executive branch 
of the government by the legislative. 

The Constitution of Massachusetts, Part the First (called the Declara- 
tion of Rights), art. XXX, provides: 

"In the government of this commonwealth, the legislative department 
shall never exercise the executive and judicial powers, or either of them: 
the executive shall never exercise the legislative and judicial powers, or 
either of them: the judicial shall never exercise the legislative and execu- 



P.D. 12. 49 

tive powers, or cither of them : to the end it may be a government of laws 
and not of men." 

Our Supreme Judicial Court has said with respect to this article: 

"In our Constitution the division of the government into three depart- 
ments, each independent of the other, is provided for in language pictur- 
esque and emphatic, ' to the end that it may be a government of laws and 
not of men.' Declaration of Rights, art. 30." 

Rice V. The Governor, 207 Mass. 577, 578. 

Mass. Const., pt. 2d, c. II, § I, describes the Governor as the "supreme 
executive magistrate." 

"The Court is ever solicitous to maintain the sharp division between the 
three departments of government as declared by art. 30 of the Declara- 
tion of Rights." 

Attorney General v. Brissenden, 271 Mass. 172, 183. 

Mass. Const., pt. 2d, c. II, § I, art. IV, provides: 

" The governor shall have authoritj^, from time to time, at his discretion, 
to assemble and call together the councillors of this commonwealth for 
the time being; and the governor with the said councillors, or five of them 
at least, shall, and may, from time to time, hold and keep a council, for 
the ordering and directing the affairs of the commonwealth, agreeably to 
the constitution and the laws of the land." 

Mass. Const., pt. 2d, c. II, § III, art. I, provides: 

"There shall be a council for advising the governor in the executive part 
of the government, to consist of (nine) persons besides the lieutenant- 
governor, whom the governor, for the time being, shall have full power 
and authority, from time to time, at his discretion, to assemble and call 
together; and the governor, with the said councillors, or five of them at 
least, shall and may, from time to time, hold and keep a council, for the 
ordering and directing the affairs of the commonwealth, according to the 
laws of the land." 

(The number of councillors was reduced to eight by Article XVI of the 
Amendments to the Constitution.) 

It is apparent from the phraseology of said chapter II that the Governor 
and the Council are both parts of the executive department of the govern- 
ment and that in holding and keeping a council under the provisions of 
said chapter II, section I, article IV, and said chapter II, section III, 
article I, both the Governor and the Council are exercising executive 
powers. 

Except for the provisions of article V of said chapter II, section III, 
which reads as follows: 

"The resolutions and advice of the council shall be recorded in a regis- 
ter, and signed by the members present ; and this record may be called for 
at any time by either house of the legislature; and any member of the 
council may insert his opinion, contrary to the resolution of the majority." 

the Constitution does not prescril)o the manner in which the meetings of 
a council so held and kept shall be conducted or carried on, nor the nature 



50 P.D. 12. 

of the place where the Governor "shall assemble and call together the 
councillors," nor does it grant any power to the Legislature to so presenile. 
It appears by necessary implication from the foregoing provisions of the 
Constitution that the authority to choose and select the place in which a 
council is to be held and kept and the manner in which its meetings are to 
be conducted is reposed by the Constitution respectively in the Governor 
and Council, the executive branch of the government. 

To limit such authority by requiring that such meetings of a council 
must be held and kept only in a place to which the public have access would 
not appear to be within the power of the legislative branch of the govern- 
ment, since the power to assemble and hold and keep meetings, which car- 
ries with it the power to decide upon the place and manner of holding and 
keeping such meetings, flows to the executive branch of the government 
from the Constitution itself and not from legislative authority. 

The power of the Legislature with relation to authority vested by the 
Constitution in the executive branch of the government has been considered 
by the Supreme Judicial Court in relation to the pardoning power. Prior 
to the adoption of article LXXIII of the Amendments to the Constitution, 
by which specific authority was granted to the Legislature to prescribe 
terms and conditions upon which certain pardons might be granted by the 
Governor, it was said by the Supreme Judicial Court that the only right of 
the Legislature to enact laws relative to the exercise of the constitutional 
power then vested in the chief executive alone was to enact laws to render 
the exercise of such constitutional power efficient and convenient. (Opinion 
of the Justices, 210 Mass. 609, 612.) 

It was said by the Supreme Judicial Court in Kennedy's Case, 135 Mass. 
48, 51, with respect to the pardoning power of the chief executive, the 
governor : 

"This power is not derived from legislation, and it is quite clear that, 
under any pretence of regulating its exercise, the executive authority could 
not be deprived of its constitutional rights in relation thereto, but provision 
may be made by legislation, which shall render the exercise of such a power 
convenient and efficient." 

To deprive the Governor of authority to assemble the Council at a place 
of his choice in the Commonwealth, or to deprive the Council of authority 
to regulate its own meetings which it holds and keeps by constitutional 
authority, as the instant measures in effect would do by prohibiting the 
holding of any such meeting other than in a place open to the public, is not 
to make provision for rendering the exercise of the powers vested in the 
Governor and in the Council "convenient and efficient," but is to limit the 
exercise of such powers and so to deprive both of authority- flowing to them 
from the Constitution. 

I am at a loss to understand the reference to "Article I of section eleven 
of chapter eleven of the constitution," which appears in both the bills which 
you have laid before me. 

Very truly yours. 

Clarence A. Barnes, Attorney General. 



P.D. 12. 51 

Registrar of Motor Vehicles — Department of Public Works — Regulations 

requiring A pproval. 

Feb. 10, 1948. 
Mr. Rudolph F. King, Registrar of Motor Vehicles. 

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

"In view of the fact that the Registry of Motor Vehicles is now in effect 
entirely separate from the Department of Public Works, I respectfully 
request your opinion whethcM- amended regulations made under authority 
of said section 7C of G. L. (Ter. Ed.) c. 90, and which are now ready to be 
promulgated, must be approved by the commissioner and associate com- 
missioners of public works as specified in said section." 

I am of the opinion that the proposed rules to which you refer should be 
approved by the Commission(^rs of Public Works. 

Although G. L. (Ter. Ed.) c. 16, § 5, as amended by St. 1946, c. 234, 
which you have set forth in your letter, establishes a division of motor 
vehicles in the Department of Public Works," in no manner subject to its 
control," no power is given to the registrar by said section 5 or by any other 
statutory provision except by G. L. (Ter. Ed.) c. 90, § 70, inserted by St. 
1945, c. 241, to make or alter rules and regulations establishing "minimum 
standards for construction and equipment of school buses." The authority 
to make rules and regulations is vested in the registrar by force of said 
section 7C alone and is therein made subject to the approval of the Com- 
missioners of Public Works. Said section 7C is set forth in your letter. 

This particular grant of rule-making power in the particular respect 
noted, to be exercised with the approval of the said Commissioners, has not 
been specifically repealed or altered so as to vest it in the registrar without 
said approval by the said amendment of G. L. (Ter. Ed.) c. 16, § 5. It 
cannot properly be said to have been so repealed or altered by implication 
from the terms of said chapter 16, section 5. The approval of the rules in 
question by the Commissioners of Public Works can scarcely be said to be 
"control" exercised over the division of motor vehicles as the word "con- 
trol " is used in said section 5. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Taxation — Veterans' Services Fund. 

Feb. 10, 1948. 

His Excellency Robert F. Bradford, Governor of the Commomvealth. 
Sir: — I am in receipt from Your Excellency of the following letter: 

"Additional ta.xes, totalling 13 per cent, are assessed on the taxes levied 
for the Veterans' Services funds. 

"Your opinion is requested as to whether or not the additional taxes 
should be credited to that fund." 

I am of the opinion that the additional taxes should be credited to the 
said Veterans' Services Fund except so much thereof as may be necessary 
to meet the payments provided for by St. 1945, c. 731. 



52 P.D. 12. 

St. 1946, c. 608, § 1, which estabhshes the Veterans' Services Fund, says 
that the fund is to consist "of so much of the proceeds of the taxes assessed 
under chapter seven hundred and thirty-one of the acts of nineteen hundred 
and forty-five, as amended, as may not be needed to meet the payments 
authorized thereby." It then goes on to provide : 

"... said fund may be used to meet the payments authorized by chapter 
seven hundred and thirty-one of the acts of nineteen hundred and forty- 
five, as amended, insofar as the proceeds of the taxes assessed thereunder 
may be insufficient to meet said payments." 

But the use of the fund for the various purposes indicated in the section 
is regulated by appropriation, since the phrase "subject to appropriation" 
is used in said section 1. 

Very trulj^ yours, 

Clarence A. Barnes, Attorney General. 



Plumbers — Plumbing Ordinances under G. L. (Ter. Ed.) c. 1^2, § 13 — 
Board of Health — Regidations. 

Feb. 16, 1948. 
Mrs. Irene K. Richards, Director of Registration. 

Dear Madam : — The Board of Examiners of Plumbers has, through 
you, asked my opinion upon the following questions: 

"1. Is it mandatory that the City Council of Newburyport pass a 
plumbing ordinance in accordance with the provisions of G. L. c. 142, 
§ 13, if it has no such ordinance? 

"2. Does the last sentence of G. L. c. 142, § 13, authorize the Board 
of Health of said city to prescribe regulations for the materials, construc- 
tion, alteration and inspection of all pipes, tanks, faucets, valves and other 
fixtures by and through which waste water is used and carried, etc., — 
in lieu of the city council ordinance required by the first sentence of said 
section." 

1. I answer your first question in the affirmative. 

The phraseology of the first sentence of G. L. (Ter. Ed.) c. 142, § 13, 
applicable to Newburyport is, in my opinion, mandatory and by the use 
of the word "shall" in the context requires the said city to prescribe by 
ordinance or by-law "regulations," which may fairly be called plumbing 
regulations from the subject matter to which they must relate described 
in said section. 

2. I answer your second question in the negative. 

In my opinion, it was the intent of the Legislature to provide that 
regulations of the boards of health were to supplement city ordinances 
and by-laws and were not to stand in place thereof or to constitute a 
substitute for such ordinances and by-laws which the cities are required 
to make. That this was the legislative intent appears from the terms of 
the last sentence of said section 13, which in effect provide that regulations 
by boards of health relative to plumbing in cities "not inconsistent with 
any ordinance or by-law made under authority of this section" are not 
forbidden by the provisions of the section. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. .53 

Workmen's Compensation — Self-Insurer — Deposit and Bond. 

Feb. 17, 1948. 
Department of Industrial Accidents. 

Gentlemen: — I am in receipt of a letter from you setting forth cer- 
tain facts with relation to a former self-insured corporation. 
In this connection you have asked me the following question : 

"Is the bond furnished bj' the Supreme IMarkets, Inc., for the year 
ending November 15, 1947 at 12:01 a.m. sufficient security to protect 
the interests of any of its employees entitled to any of the benefits pro- 
vided in chapter 152 of the General Laws for injuiies incvu-red during the 
time Supreme ^Markets was a self-insurer?" 

1. The Attorney General does not pass upon questions of fact. 
Inasmuch as your department fixed the amount of the bond and did 

not require an additional one, it is to be assumed that the bond is sufficient 
in amount. If so, it would appear to be as a matter of law "sufficient 
security to protect the interests of . . . its" (the corporation's) "em- 
ployees" as the quoted words are used in your question. 

2. Your second question reads: 

"Must the Supreme Markets, Inc., make a deposit of securities equal 
to the sum of the bond or furnish a single premium non-cancellable policy 
or furnish a surety bond guaranteeing the payment of any liability on its 
part as provided in the condition of its bond furnished for one year be- 
ginning at 12:01 A.M. November 15, 1946?" 

It cannot be said as a matter of law that the corporation in question 
must presently make the deposit referred to or do the other acts men- 
tioned in your question. It may be required by your department to do 
so and if it does, the condition of the bond will be fulfilled. 

3. Your third question reads: 

"If yovu- answer to the first question is in the affirmative is there any 
time in the future when the liability of the surety or the principal on the 
above bond will cease? " 

As the surety bond in question is an instrument under seal, the statute 
of limitations would not bar a suit thereon for twenty years (G. L. (Ter. 
Ed.) c. 260, § 1) from the date thereof. The surety should be notified of 
liability arising from the acts of the principal. 

4. As the answer to your first question is not in the negative, no answer 
to this question is required. 

5. Your fifth question reads: 

"Should the bond effective for a period of one year beginning Novenil)er 
15, 1947 at 12:01 a.m. be returned to the Supreme Markets, Inc.?" 

Inasmuch as the corporation in question insured itself, as you state, 
as of November 15, 1947, so that it never was a self-insurer during the 
period apparently stated in the bond to which you refer in this question, 
there would not seem to be any reason as a matter of law for not returning 
such bond. 

Ver}^ trulj^ yours, 

Clarence A. Barnes, Attorney General. 



54 P.D. 12. 

Police Officer — Boston — Sick Leave — Injuries. 

Feb. 20, 1948. 

Hon. Thomas F. Sullivan, Police Commissioner of the City of Boston. 

Dear Sir : — You have asked my opinion upon two questions relative 
to sick leave for police officers. Inasmuch as the authority to grant sick 
leave with pay is derived directly from acts of the Legislature, the Attor- 
ney General may appropriately advise you with relation to such questions 
(Opinion of Attorney General to Police Commissioner, January 27, 1944). 

1. Your first question, which contains more than one query, reads: 

"Is time lost by an officer injured in the performance of police duty, or 
time lost by an officer suffering from contagious disease incurred in the 
performance of police duty, to be charged against accrued Sick Leave under 
this law in the same manner as injury and sickness not duty connected? " 

St. 1947, c. 146, § 4, which you have set forth in your letter, makes pro- 
vision for sick leave with pay for members of the Boston Police Depart- 
ment who have served more than six continuous months, not to exceed 
fifteen working days. It is provided that such sick leave with pay shall 
be granted only when such members are incapacitated by "sickness, in- 
jury, exposure to contagious diseases or by serious illness or death of mem- 
bers of their immediate family." 

The statute appears to have been enacted to supplement and make more 
comprehensive, but not to alter or make substitution for, the provisions of 
St. 1933, c. 324, and is to be construed in connection therewith. 

It is a well-settled rule of statutorj^ construction that an act should be 
interpreted in the light of an existing statute relating to the same general 
subject so that the two may, as far as possible, form an harmonious whole. 
St. 1947, c. 146, does not specifically nor by implication repeal St. 1933, 
c. 324, nor, as I have said, alter its terms, and consequently should be read 
in connection w^th the provisions thereof. 

St. 1933, c. 324, provides specifically for compensation by way of in- 
demnification for damages, including loss of pay, for injuries received by a 
member of the Boston Police Department incurred in the performance of 
his duty. St. 1947, c. 146, does not specifically nor. by implication provide 
that the "sickness" or the "exposure to contagious diseases" referred to 
therein is to be limited either to service-incurred disabilities or to non- 
service-incurred disabilities. 

I am of the opinion that it was the intent of the Legislature that "sick- 
ness" or "exposure to contagious diseases" resulting in lost time should 
be charged against accrued sick leave, whether contracted in the perform- 
ance of duty or contracted outside the performance of duty. 

I am of the opinion, however, that the Legislature in using the word 
"injury" in the ciuoted phrase in St. 1947, c. 146, did not intend to refer 
to a service-contracted disability, which was specifically provided for by 
said St. 1933, c. 324, but intended it, supplementing the provisions made 
by said chapter 324, to refer to non-service contracted injury. 

I therefore answer your question categorically to the effect that "an 
officer injured in the performance of police duty" is not to have his "time 
lost" "charged against accrued sick leave" but that he is to be compen- 
sated under said St. 1933, c. 324. An officer receiving an injury not in the 



P.D. 12. 55 

performance of police duty will he governed in respect thereto by said St. 
1933, c. 324, and his time lost charged against accrued sick leave. 

An officer "suffering from contagious disease," about whom you also 
inquire, should have his time lost charged against accrued sick leave, 
whether such disease be contracted by exposin-e to it during the perform- 
ance of police duty or while outside such performance. 

2. Your second question reads : 

"What is the status regarding pay under said section 4, of officer who 
has not completed six months' continuous service, and, w^ho is absent 
because of injury received while performing police duty?" 

The phraseology of St. 1947, c. 146, § 4, specifically excludes from its 
provisions members of the Boston Police Department who have not com- 
pleted six months of continuous service. Irrespective of that, any police 
officer of the city of Boston, whether or not he has had six months of actual 
service, is entitled to the benefits of compensation by wa}'' of indemnifica- 
tion provided by said .chapter 324 for injunj, including loss of pay. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Police Officer — Boston — Sick Leave ■ — Members of Immediate Family. 

Feb. 24, 1948. 

Hon. Thomas F. Sullivan, Police Cojnmissioner of the City of Boston. 

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

"I am again requesting your opinion regarding interpretation of pro- 
visions of St. 1947, c. 146, § 4, pertaining to 'Annual A'acation and Sick 
Leave Allowances for Police Officers in the City of Boston.' 

"The question on which I respectfully request your opinion is as follows: 
"1. What relatives should ])e considered wdthin the meaning of the fol- 
lowing words as used in third sentence of said Section 4: 'Members of 
their immediate family.' " 

The words "family" and "immediate family" as used in statutes have 
been construed in different ways by courts, depending on the purpose of 
the statute and the particular facts involved in cases presented to them. 

The phrase contained in St. 1947, c. 146, § 4, about w'hich you inquire, 

reads : 

* 

"Sick leave with pay shall be granted to said members" (of the Boston 
Police Department) "only when they are incapacitated for the perform- 
ance of duties by sickness, injury, exposure to contagious diseases or by 
serious illness or death of members of their immediate family .'^ 

The Attorney General does not pass upon questions of fact. I am of 
the opinion that the quoted phrase of said .section 4 should be interpreted 
broadly .so as to effect its beneficent purpose. In the abs(>nce of peculiar 
facts existing in the specific circumstances of any particular police officer's 
life, I am of the opinion that the words "immediate family" should be 
construed so as to include at least his wife and all I'clatives who an^ uK^m- 
bers of his household, as well as such close relatives as pur(>nts, children 
and brothers and sisters who may live outside his household. 



56 P.D. 12. 

There may be circumstances in regard to any particular police officer's 
way of living or situation with respect to individuals in his own household 
or with his relatives which might exclude some person from being con- 
sidered within his "immediate family" or might require that some special 
one of his kin should be considered as being in his "immediate family," as 
exceptions to the general rule which I have set forth above for your 
guidance. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Taxation — Veterans^ Services Fund. 

Feb. 27, 1948. 
Hon. Fred A. Moncew^icz, Comptroller. 

Dear Sir: — In a recent letter you have asked me if certain receipts 
which were allocated during the fiscal years of 1946 and 1947 to the Vet- 
erans' Services Fund should be transferred to the Old Age Assistance Fund 
and the General Fund. 

I am of the opinion that the receipts in question, which you inform me 
represent surtaxes imposed upon corporations under various statutes in 
accordance with St. 1945, c. 731, i^ 10, as amended, were properly allocated 
to the Veterans' Services Fund established by St. 1946, c. 608, § 1, and 
should not now be credited to other funds. 

A consideration of the applical^le statutes, construed so as to form an 
harmonious whole, indicates a legislative intent that receipts such as those 
in question should be credited, as you state they have been, to the Vet- 
erans' Services Fund. (See opinion of the Attorney General to the Gov- 
ernor, February 10, 1948.) 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Insurance — Endorsement on Accident and Health Policy — Form. 

March 2, 1948. 

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

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

"Your opinion is respectfully requested as to whether or not a rider or 
endorsement form which is to be attached to an accident and health in- 
surance policy and when so attached to constitute a part of the contract 
is required to have printed thereon the name of the insurance company 
which proposes to issue the same." 

G. L. (Ter. Ed.) c. 175, § 18, to which you have referred in your letter, 
provides : 

"Every company shall conduct its business in the commonwealth in its 
corporate name, and all policies and contracts . . . shall ... be headed 
. . . only by such name." 

This section indicates an intent on the part of the Legislature that poli- 
cies shall be headed by the name of the insuring company, as well as that 



P.D. 12. 57 

such name alono shall so appc^ar in the hoadinp; of a policy. That it was 
intendod that a policy should hr so headed with the name of the insuring 
company is further shown by the standard form of fire insurance policy as 
set forth by the Legislature in G. L. (Ter. Ed.) c. 175, ^ 99, as amended. 
G. L. (Ter. Ed.) c. 175, § 108, cl. 1, provides that a policy of accident and 
health insurance, with such papers as shall be attached thereto, shall con- 
stitute the whole contract of insurance, and by section 108 (c) it is pro- 
vided that every part of such a policy shall be printed in type of a desig- 
nated size. 

All these provisions may be said to be "provisions of law relative to the 
filing of policy forms with, and the approval of such forms by, the com- 
missioner," and as such, by the terms of section 192 of said chapter 175, 
as amended, they "apply to riders and endorsements designed to be at- 
tached to policy forms." 

I am informed that it has long been the interpretation by your depart- 
ment of the statutes under consideration that they required that a rider or 
endorsement attached to an accident and health insurance polic}' should 
have the name of the insuring com.pany printed thereon. 

I am of the opinion that your interpretation is correct, inasmuch as it 
appears from a consideration of the applicable statutes that the legislative 
intention was to require such printing of the name of the insuring com- 
pany at the head of riders and endorsements to be attached to policies of 
accident and health insurance. 

There is nothing in section 33 of said chapter 175, as amended by St. 
1946, c. 186, which indicates that there should be any different conclusion 
as to the interpretation of the applicable statutes than the one which I 
have set forth above. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Board of Collegiate Authority — Power to Act under St. 1943, c. 571, and 

St. 1946, cc. 340 and 552. 

March 9, 1948. 
Hon. John J. Desmond, Commissioner of Education. 

Dear Sir: — In reply to your recent letter, I advise you that the 
Board of Collegiate Authority has power to act under St. 1946, c. 340, 
and approve the course of instruction given by the Massachusetts JNIari- 
time Academy leading to the degree of Bacheloi- of Science. 

Likewise, the Authority has the power to act under the provisions of 
St. 1946, c. 552. 

In neither of said chapters is authority specifically given by the Legis- 
lature only to "the board of collegiate authority established bj' chapter 
five hundred and forty-nine of the acts of nineteen hundred and forty- 
three," as was the case in St. 1943, c. 571, with relation to certain powers 
of such last-named Authority connected with the Boston School of Phar- 
macy, referred to in my opinion to you of January 14, 1948. It was mth 
regard to the phraseology and intent of that particular statute alone, 
wherein the "collegiate authority established by chapter five hundred 
and forty-nine of the acts of nineteen hundred and forty-three" was 
specifically referred to, that the new Authority was referred to as not 
being intended to be a continuation of the older one. 



58 P.D. 12. 

The powers of the new Authority were stated in said opinion to be the 
same as those of the old board. This being so, the present Authority 
may exercise the powers given unrestrictedly to the Board of Collegiate 
Authority by said St. 1946, c. 340, and St. 1946, c. 552. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Public Health — Rules under G. L. (Ter. Ed.) c. 94, § 19:2. 

March 9, 1948. 

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

Dear Sir: — You have asked my opinion upon certain questions as to 
the construction of G. L. (Ter. Ed.) c. 94, § 192 "with reference to the 
adoption by the Department of Public Health of certain rules for the 
enforcement of sections 186 to 195" of said chapter 94. 

The Attorney General does not ordinarily interpret or construe statutes 
as such unless there be a present duty resting upon an officer to act upon 
some matter involving an application of the statutes. Nevertheless, in 
the present instance it would seem appropriate to answer the questions 
you have put to me relative to the rule-making power of your department 
as affected by said section 192. 

Your questions are as follows: 

"1. Is the department empowered to adopt rules and regulations in 
connection with subject matters upon which no federal regulation has 
been adopted for the enforcement of federal law? 

"2. Is the department empowered to adopt a standard upon a food 
for which no federal standard has been established? 

"3. Is the intent of this section to the effect that all rules and regula- 
tions adopted by the department under its provisions are for the purpose 
of implementation of federal law?" 

Although the phraseology of said section 192 is by no means plain, I 
am of the opinion that it indicates a legislative intent that the rules and 
regulations made under said section 192 shall be, while not inconsistent 
with the provisions of our own statutes, for the purpose of implementing 
the Federal law specifically referred to in said section 192. 

This being so, I answer your first and second questions in the negative 
and your third in the affirmative. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Judiciary — Department — Definitions — G. L. (Ter. Ed.) c. 30, § 52. 

March 10, 1948. 
Mr. Fred A. Moncewicz, Comptroller. 

Dear Sir: — In reply to your letter of March 4, 1948, let me advise 
you that the "judiciary" is not a "department, office or commission" of 
the Commonwealth, as the quoted words are used in that portion of G. L. 
(Ter. Ed.) c. 30, § 52, which is set forth in your letter. I assume that the 
word "judiciary," as employed by you in your letter, refers to the judicial 



P.D. 12. 59 

branch of the government as distinguished from the executive and legisla- 
tive branches. The judicial, as one of the three main branches or divi- 
sions of the government of the Commonwealth, is not comprehended by 
the words "executive and administrative departments and other activities 
of the commonwealth," as those quoted words are used in section 51 of 
said chapter 30, nor by any other words employed by the Legislature in 
said sections 51 and 52. 

Verj^ trul}^ yours, 

Clarence A. Barnes, Attorney General. 



Department of Puhlic Works — Rules relative to Motor Traffic in the Logan 

Airport. 

March 15, 1948. 

Hon. AVilliam H. Buracker, Commissioner of Public Works. 

Dear Sir: — In a recent letter you have asked me the following ques- 
tion: 

'•'Your opinion is requested as to whether G. L. c. 90, § 20A, as amended 
by Acts of 1938, is or is not applicable to regulations of this Department 
regulating the parking of motor vehicles at Logan Airport." 

The particular portion of said G. L. (Ter. Ed.) c. 90, § 20A, appHcable 
to your question reads : 

"It shall be the duty of any police officer who takes cognizance of a 
violation of any provision of any rule, regulation, order, ordinance or by- 
law regulating the parking of motor vehicles established by any city or town 
or by any commission or body empowered by law to make such rules or 
regulations therein, forthwith to give to the offender a notice to appear 
before the clerk of the district court having jurisdiction ..." 

Your commission is empowered by St. 1943, c. 528, § 6 to make rules 
and regulations for the "use of the airport or part thereof." 

This power is broad enough, in my opinion, to authorize you to make 
rules relative to motor vehicle traffic within the airport, and since the ways 
in the airport are not highways dedicated to the use of the public, regula- 
tion of such traffic by the use of parking meters governed by such regula- 
tions with relation thereto as you have laid before me would appear to be 
a reasonable exercise of the power vested in you by said section 6. 

Although you are not authorized to establish penalties for violations 
of your rules, I am of the opinion that such violations come within the 
terms of the portion of G. L. (Ter. Ed.) c. 90, § 20A, quoted above and 
may be dealt with by police officers in accordance with the terms of said 
section 20A. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



60 P.D. 12. 

Constitutional Law — Mystic River Bridge Authority — Legislation im- 
pairing the Obligation of a Contract. 

March 22, 1948. 

Joint Committee on Highways and ]\[otor Vehicles, House of Representatives. 

Gentlemen : — You have asked my opinion as to the constitutionahty, 
if enacted into law, of Senate Documents 10, 11, 183 and 184 and House 
Documents 713, 1237 and 1721, all of which relate to the Mystic River 
Bridge Authority created by St. 1946, c. 562, as amended, whose bonds 
have already been issued under the provisions of the said chapter. 

I am of the opinion that all the foregoing measures, if enacted into law, 
would be held to be unconstitutional. 

Each of the foregoing would be a law impairing the obligation of con- 
tract and hence contrary to section 10 of Article I of the Constitution of 
the United States. 

A contract exists between the Authority and the bondholders made 
under the sanction of the Legislature as expressed in the terms of said 
chapter 562. 

''The obligation of a contract, in the constitutional sense, is the means 
provided by law by which it can be enforced, — by which the parties can 
be obliged to perform it. Whatever legislation lessens the efficacy of these 
means impairs the obligation. If it tend to postpone or retard the enforce- 
ment of the contract, the obligation of the latter is to that extent 
weakened." 

Louisiana v. Neiv Orleans, 102 U. S. 203, 206. Opinion of the Justices, 297 
Mass. 582, 586. 

"It is commonly not a question of the degree of impairment of the con- 
tract. If there is any substantial impairment of the obligation it en- 
counters the prohibition." 

Thompson v. Auditor General, 261 Mich. 624, 640. Opinion of the Justices, 
297 Mass. 582, 586. 

The statute was in effect at the date of the making of the contract with 
the bondholders and it is well settled that it cannot thereafter be annulled 
or changed so as to alter the contractual rights of the parties to the detri- 
ment of either. Worthen Co. v. Kavanaugh, 295 U. S. 56. Clark v. Phila- 
delphia, 196 Atl. Rep. 384. 

These proposed measures, by repealing or rendering inoperative said 
chapter 562, as amended, or by lessening the effectiveness of the Authority 
to take by eminent domain or by increasing the cost of takings of parks or 
playgrounds, in contravention of the powers granted under said chapter 
562, as amended, or by providing for the construction of a tunnel instead 
of a bridge, so impair the obligation of the contract with the bondholders 
as to render such measures unconstitutional, if enacted into law. 

The same considerations apply to Senate Document 182, which you 
have also sent me under separate cover. This measure, like House Docu- 
ment 1237, provides for additional expense in the taking of "public lands, 
parks, parkways or reservations" which, in my opinion, works an impair- 
ment in the said contract which would render the measure unconstitutional. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



F.D. 12. 61 

Greylock Reservation Commission — Authority — Television. 

March 30, 1948. 

Mr. James E. Wall, Chairman, Greylock Reservation Commission. 

Dear Sir: — On behalf of the Greylock Reservation Commission you 
have asked me whether the commission has "the authority to grant per- 
mission to a private corporation to place a television antenna on the Reser- 
vation and to place a cubicle in the basement of the Lodge." 

The Greylock reservation was established and the commission was vested 
with power "to care for, protect and maintain the same on behalf of the 
commonwealth" by St. 1898, c. 543. The commission was continued in its 
existence and its power of maintenance confirmed and enlarged so as to 
embrace the Alount Grevlock War Memorial by St. 1933, c. 336, now G. L. 
(Ter. Ed.) c. 6, §§ 46, 47. 

In my opinion the words "to care for, protect and maintain the same on 
behalf of the commonwealth" confer no authority upon your commission 
to grant permission to a private corporation to place a television antenna 
and cubicle on the reservation. The powers conferred upon your commis- 
sion appear to have been limited by the Legislature to those necessary to 
maintain, protect and care for the reservation as a "reservation", with all 
that the quoted word denotes, for the general benefit and enjoyment of the 
public therein and, accordingly, you are without authority to grant special 
privileges of location and user which are not incidental to the use of the 
reservation by the public. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Labor and Industries — Authority — Firearms — Tools. 

March 31, 1948. 

Hon. Daniel J. Boyle, Commissioner, Department of Labor and Industries. 

Dear Sir: — You have requested my opinion on the following questions 
relating to new tools known as "Drive-it" and "Tempotool": 

"1. Does the authority of the^ Department of Labor and Industries, 
contained in G. L. c. 149, § 6, extend to this type of equipment, whether or 
not the same is construed to be 'firearms'? 

"2. Are these tools included in the definition of 'firearms,' contained in 
G. L. c. 140, § 121?" 

I answer your first question in the affirmative insofar as it relates to the 
authority of the Department of Labor and Industries containetl in G. L. 
(Ter. Ed.) c. 149, § 6, over the two new tools known by the names of 
"Drive-it" and "Tempotool". The latter part of j'our first question is 
inapplicable to these tools, as they arc not firearms. 

I answer your second question in the negative. In regard to your second 
question, you call my attention to G. L. (Ter. Ed.) c. 140, § 121. The 
definition of a firearm contained in this section is for the purpose of de- 
termining the weapons for which a license to sell, purchase or cany must be 



62 P.D. 12. 

obtained. In my opinion these tools are neither pistols, revolvers, nor 
weapons from which a bullet or shot may be discharged and are therefore 
not firearms within the statutory definition. 

Yours very truly, 

Clarence A. Barnes, Attorney General. 



Department of Public Safety — Authority — Air Pistol or Rifle — 
Firearms — Permit. 

March 31, 1948. 

Hon. John F. Stokes, Commissioner of Public Safety. 

Dear Sir : — You have submitted two questions to me and requested 
my opinion thereon : 

"1. Does an air pistol or air rifle with a barrel less than 18 inches in 
length, not including any revolving, detachable, or magazine breech, ca- 
pable of discharging a lead pellet or BB shot, come within the provisions of 
G. L. c. 140, § 121?" 

G. L. (Ter. Ed.) c. 140, § 121, provides that in sections 122 to 129, 
inclusive, — 

" . . . 'firearms' includes a pistol, revolver or other weapon of any de- 
scription loaded or unloaded, from which a shot or bullet can be discharged 
and of which the length of barrel, not including any revolving, detachable 
or magazine breech, is less than eighteen inches ..." 

The definition includes an air pistol or an air rifle from which a shot or 
bullet may be discharged, the barrel of which is less than eighteen inches 
in length. 

"2. If so, is a license to carry necessary as provided by section 131 of 
G. L. c. 140, and also a permit to purchase, as provided in section 131 A of 
the same chapter?" 

G. L. (Ter. Ed.) c. 140 §§ 131 and 131A, require that a license to carry 
or to purchase a pistol or revolver may be issued, etc. Whoever purchases 
or carries either a pistol or revolver without such a permit violates G. L. 
(Ter. Ed.) c. 269, § 10. It is to be noted that the only tj^pes of firearms for 
which a license to purchase or to carry is required are pistols and revolvers. 
An air rifle is neither a pistol nor a revolver and is therefore not within the 
terms of said sections. A pistol, however, is a short weapon, designed a.nd 
intended to be fired by one hand and capable of being concealed on the 
person. Under this definition, an air pistol intended to be discharged by 
one hand and capable of being concealed on the person is a pistol within the 
definition of G. L. (Ter. Ed.) c. 140, §§ 131 and 131A, and it is necessary 
to secure a license to purchase or to carry the same. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 03 

Constitutional Lau — Proposed Act with Relation to Cemetery Associations 
— Police Power — Fourteenth Amendment — Declaration of Rights. 

April 6, 1948. 

Mr. Newland H. Holmes, Chairman, Committee on Bills in th^ Third 

Reading. 

Dear Sir: — You have requested my opinion as to the constitutionality 
of Senate Bill 462, entitled "An Act providing that certain persons shall 
not sell or engage in the business of selling monuments for cemetery lots," 
which provides as follows: "No cemetery association or other agency 
owning, maintaining, or operating a cemetery, or any officer, agent, or 
employee thereof shall sell or engage in the business of selling monuments 
for cemetery lots." It is my opinion that this bill, if enacted into law, 
would violate the Fourteenth Article of Amendment (part of section 1) 
of the Constitution of the United States, and Articles I, VII and X of the 
Declaration of Rights of the Constitution of Massachusetts. 

It may well be said that the business sought to be regulated is not that 
of operating a cemetery, but of selling monuments for cemetery lots. 
That business is not one clothed with a public interest. It is not an occu- 
pation which any persons can be prohibited from carrying on absolutely 
or upon terms. Opinion of the Justices, 247 Mass. 589. 593. Wyeth v. 
Cambridge Board of Health, 200 Mass. 474, 478. 

The proposed statute is clearly not a regulation of cemeteries, since it 
extends to officers, agents and employees of cemeteries or other agencies 
operating cemeteries. 

Even if the bill were regarded as a regulation of cemeteries, it would 
be invalid. 

While cemeteries are, of course, subject to regulation under the police 
power, it does not follow that any and all regulations of every sort and 
description with respect to cemeteries can be upheld under this police 
power. Gamage v. Masonic Cemetery Ass'n, 31 F. (2d) 308, 309 (reversed 
on other grounds, 38 F. (2d) 950). Hume v. Ijaurel Hill Cemetery, 142 
Fed. 552, 562. Opinion of the Justices, 247 Mass. 589, 593, 595. 

Police power primarily is based upon the necessity of regulation by the 
sovereign for reasons of public health, safety, morals, comfort and good 
order. McMurdo v. Getter, 298 Mass. 363. There is no r(>ason to suppose 
that the sale of monuments by persons operating cemeteries affects any 
of these five. There i§ no reason to deprive such pcM'sons of the right to 
engage in an otherwise lawful business. "Freedom of contract is the 
general rule and restraint the exception. The legislative authority to 
abridge can be justified only by exceptional circumstances." Wolff 
Packing Co. v. Kansas Court of Industrial Relations, 262 U. S. 522, 534. 
Commonwealth v. Boston Transcript Co., 249 Mass. 477, 483. 

Nothing is more clearly settled than that it is beyond the power of a 
State, under the guise of protecting the public, arbitrarily to interfere 
with private business or prohibit lawful occupations or impose unreason- 
able and unnecessary restrictions upon them. New State Ice Co. v. Lieb- 
mann, 285 U. S. 262, 278. 

In order to be a valid regulation for the protection of the public health, 
safety, morals, comfort and good order there must be a reasonable rela- 
tionship between the protection of "the pubUc against the evil threatened" 



64 P.D. 12. 

and the restriction imposed. In addition to this, the imposed restriction 
must really tend to accomplish the purpose for which it was enacted. 
Burns Baking Co. v. Bnjan, 264 U. S. 504, 513. 

There seems to be no legitimate connection between the proposed re- 
striction and an}'- reason of public health, safety, morals, comfort and 
good order. The fact that the cemetery corporation is affected with the 
public interest does not justify a different or other standard. Wyeth v. 
Cambridge Board of Health, 200 Mass. 474. Lochner v. Neiv York, 198 U. S. 
45, 57. Opinion of the Justices, 247 Mass. 589. Commonwealth v. Ferris, 
305 Mass. 233, 235. 

It is to be noted that not only is a cemetery association or other agency 
owning, maintaining or operating a cemetery prohibited from selling 
monuments for cemetery lots but so is "any agent, officer or employee 
thereof. " This particular clause is not limited to an officer, agent or 
employee acting on the business of such a cemetery association or agency 
but is general in its terms. This seems to be an additional violation of 
the principles heretofore set forth in this opinion. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Metropolitan District Commission- — Authority to Levy Compensation 
Assessments — St. 1945, c. 705, § 12. 

April 9, 1948. 

Hon. William T. Morrissey, Commissioner, Metropolitan District Com- 
mission. 

Dear Sir: — You have asked my opinion as to whether or not St. 
1945, c. 705, § 12, empowers your commission to make compensatory 
assessments upon cities and to^^^ls which violate the rules and regulations 
formulated by your commission under the terms of said act, in addition 
to the amounts assessed upon said cities and towns for apportioning costs 
as outhned in G. L. (Ter. Ed.) c. 92. 

I answer your question in the affirmative. 

Chapter 92 provides for ascertaining the proportions which each of the 
to'\^Tis belonging in whole or in pai't to the North Metropolitan and South 
Metropolitan Sewerage Districts, respectively, shall annually pay to the 
Commonwealth to meet interest and sinking fund requirements for each 
year, as estimated by the State Treasurer, and to meet any deficiency in 
the amount previously paid in as found by him. 

St. 1945, c. 705, § 12, provides that the failure on the part of any munic- 
ipality within either of said districts to comply with any rule or regulation 
formulated by the Metropolitan District Commission under the authority 
of said act, lawfully affecting such municipality, shall be sufficient cause 
for the levying and collecting by said Metropolitan District Commission 
from such municipality of such additional assessment or assessments as 
the Metropolitan District Commission may deem necessary to compensate 
it for the disposal of sewage, drainage, substances or wastes from such 
municipality. 

In my opinion, this assessment is distinct from, and in addition to, the 
basis of cost to be determined by the State Treasurer. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. G5 

Police Officer — Boston — Days Off. 

April 16, 1948. 

Hon. Thomas F. Sullivan, Police Commissioner for the City of Boston. 

Dear Sir: — You have written me quoting St. 1948, c. 135, which pro- 
vides that any poHce officer of the city of Boston who is required to work 
on certain holidays shall be given an additional day off, or, if such addi- 
tional day off cannot be given by reason of a personnel shortage or other 
cause, he shall be entitled to an additional day's paj^, and have asked me 
two questions with relation thereto. 

Your first question is : 

" 1. Does this statute grant all police officers of the city of Boston a day 
off on each of the ten holidays mentioned?" 

Under the provisions of the statute referred to, a police officer who is 
required to work on any one of the holidays stated must be given an addi- 
tional day off or, under the conditions stated, an additional day's pay. 
The evident purpose of the statute is to put the police officers of the city 
of Boston upon the same basis as regards holiday leave as were State 
officers and employees under G. L. (Ter. Ed.) c. 30, § 24A, as inserted by 
St. 1945, c. 565. The statute contemplates that while the services of some 
police officers can be dispensed with on the day of the holiday itself, or on 
the day of its celebration if it falls on a Sunday, it will not be possible to 
dispense with the services of others on such days, and it is to be assumed 
by far the larger number of police officers will be included in the latter 
group. Such police officers are to be given an additional day off to com- 
pensate them for the loss of the holiday leave which some of their fellow 
officers were able to enjo}^ or, if because of personnel shortages such addi- 
tional day off cannot be given to them, they are entitled to receive in lieu 
thereof an additional day's pay. 

Your second question is: 

"2. In the event an officer's regular day off falls on one of the ten holi- 
days mentioned, is the officer under this statute entitled to an additional 
day off?" 

By the express words of the statute, the only police officers who are to 
receive additional days off or additional day's pay are those who are ''re- 
quired to work" on the holidays or the days upon which they are cele- 
brated. Plainly, one whose regular day off falls upon a holiday or its day 
of celebration is not "required to work" thereon, and consequently I 
must advise you that, in my opinion, an officer whose regular day off falls 
on one of the ten holidaj's mentioned is not entitled to an additional day 
off. Confirmation of the opinion stated is to be found in the fact that St. 
1945, c. 565, the original statute providing for an additional day off duty 
or an additional day's pay for State officers and employees who were re- 
quired to work on certain holidays, is worded substantially the same as 
the statute about which you inquire, and that by St. 1946, c. 411, the 
Legislature considered it necessary to add to the provisions of St. 1945, 
c. 565, an express provision that a State employee whose regular day off 
falls on a holiday shall be given an additional day off or an additional 
day's pay. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



66 P.D. 12. 

Insurance — Refund of Fee for Broker's License under G. L. (Ter. Ed.) 

c. 175, § H. 

April 20, 1948. 

Mr. Edmund S. Cogswell, First Deputy and Acting Commissioner of 

Insurance. 

Dear Sir: — In a recent letter you have asked my opinion as to whether 
or not your department has authority to make a refund of the Hcense fee 
of twenty-five dollars received by it for the issuance of an insurance 
broker's license pursuant to the provisions of G. L. (Ter. Ed.) c. 175, § 14, 
to the estate of a deceased licensee who died on the same day as the effec- 
tive date of the license issued, assuming that said licensee had never 
performed any act as insurance broker under the authority of said license. 

I answer your question in the negative. 

G. L. (Ter. Ed.) c. 175, § 14, provides that the Insurance Commissioner 
"shall collect from the applicant and pay to the commonwealth charges 
and fees as follows: . . . for each license or renewal thereof to an insur- 
ance broker under section one hundred and sixty-six, twenty-five dol- 
lars . . ." 

The statute makes no provision for refunds to be made by the Com- 
missioner of Insurance, his authority in this respect being limited to col- 
lecting the fee and transmitting it to the Commonwealth. No authority 
to refund because of lack of actual use of the license arises by implication 
from the establishment of the license fee. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Termination of World War II with Relation to St. 1945, c. 405. 

April 22, 1948. 
Mr. Rudolph F. King, Registrar of Motor Vehicles. 

Dear Sir: — You have asked my opinion as to whether in the present 
state of World War II St. 1945, c. 405 is to be considered still in effect 
with reference to the three following instances : 

''1. For those individuals who were in the armed services previous to 
V-E Day, so called, and who have not as yet been honorably discharged. 

"2. For those who were in the armed services previous to V-E Day, 
so called, and who received an honorable discharge and re-enlisted. 

"3. For those who since V-E Day have entered the armed services, 
for the first time, by voluntary enlistment." 

I answer your question with reference to each of the three above in- 
stances in the affirmative. 

It is apparent from the provisions of the amendment of St. 1941, c. 708, 
made by said chapter 405 that any one of the licenses in each of the three 
instances referred to in your letter is to be continued in force until sixty 
days after the President or Congress declares that World War II has 
terminated, or until the expiration of sixty days after the termination of 
military service of a licensee by honorable discharge therefrom. Since 



P.D. 12. ■ 67 

World War II has not officially, boon doclarod torminatod by the President 
or Congress, such a license remains effective and in force until the occur- 
rence of one of the designated evc^nts. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veteran — Settlement — St. 1946, c. 584, § 6. 

April 23, 1948. 
Hon. Francis X. Cotter, Commissioner of Yeterans' Services. 

Dear Sir : — In a recent communication you state the following case : 

"On June 19, 1942, a parent of the veteran left town A and on that date 
she had a settlement in that to\vn. Since that date she has not lived in 
any city or town in the Commonwealth for five consecutive j^ears. 

"Application was made for Veterans' Benefits on July 29, 1947 because 
of need of the parent." 

and request my opinion as to the effect on the determination of the pai-ent's 
place of settlement of the amendment to G. L. (Ter. Ed.) c. 116, § 5, con- 
tained in St. 1946, c. 584, § 6. 

Prior to the amendment of 1946, G. L. (Ter. Ed.) c. 116, § 5, provided 
in the portion which is material here, as follows: 

"The settlement existing on August twelfth, nineteen hundred and 
sixteen, or any settlement subsequently acquired, of a person whose service 
in or with the army, navy or marine corps of the United States qualifies 
him to receive aid or relief under the provisions of chapter one hundred 
and fifteen, and the settlement of his wife, widow until she remarries, 
father or mother, qualified by his service to receive relief imder said chap- 
ter one hundred and fifteen, shall not be defeated, except by failure to 
reside in the commonwealth for five consecutive years or by the acquisition 
of a new settlement." 

By the amendment contained in St. 1946, c. 584, § 6, that part of G. L. 
(Ter. Ed.) c. 116, § 5, was amended to read as follows: 

"The settlement existing on August twelfth, nineteen hundred and six- 
teen, or any settlement subsequently acquired, of a veteran eligible to 
receive veterans' benefits under the provisions of chapter one hundred and 
fifteen, and the settlement of his wife, widow until she remarries, minor 
children, father or mother, qualified by his service to receive such benefits, 
shall not be defeated, except by failure to reside in the commonwealth 
for five consecutive years or by the acquisition of a new settlement." 

After the enactment of the amendment of 1946, the Supreme Judicial 
Court for the Commonwealth rendered its decision in the case of Pepperell 
V. Somerville, Mass. Adv. Sh. (1947) 709, 73 N. E. 2d 850. In that case 
the court considered the construction of the language contained in G. L. 
c. 116, § 5, prior to its amendment by St. 1926, c. 292. The latter statute 
changed the form of said section to that first quoted above. The earlier 
form of said section 5 extended its benefits only to "soldiers and their de- 
pendents eligible to receive military aid or soldiers' relief." The court ruled 



6S • P.D. 12. 

in substance that in order to be entitled to the benefits of that provision 
with regard to settlements of soldiers and their dependents, the soldier 
must, at the time of the enactment of the statute, have been unable to 
provide maintenance for himself and his dependents. Only those who were 
then actually dependent and not those who might thereafter become de- 
pendent, it was held, were given settlement by the statute. See also the 
decision in the case of Treasurer and Receiver General v. Natick, 320 Mass. 
715. The close similarity of the language contained in St. 1946, c. 584, § 6, 
as to the veterans whose settlements were to be controlled by that section, 
to wit, "a veteran eligible to receive veterans' benefits," to the language 
contained in G. L. c. 116, § 5, prior to its amendment by St. 1926, c. 292, 
is such as to compel me to rule that the provision contained in the 1946 
statute must be given the same construction as to the veteran himself as 
the court in the PeppereU case gave to the language of G. L. c. 116, § 5, 
prior to the amendment of 1926. It thus appears that in making the 
changes in G. L. (Ter. Ed.) c. 116, § 5, set forth in St. 1946, c. 584, § 6, 
which it seems clear were intended only as changes in phraseology to bring 
that section into conformity with the statutes relative to veterans' benefits, 
those drafting the section inadvertently made a change which is one of sub- 
stance and which is a retrogression to an earlier and restricted provision 
with regard to settlements of veterans. Although, as I will have occasion 
to state hereinafter, the amendment does not operate to deprive the de- 
pendents of the veteran of the more liberal provisions with regard to 
settlements inserted in G, L. c. 116, § 5, by St. 1926, c. 292, you should 
immediately recommend to the Legislature that the mistake as to veterans 
themselves be rectified and that the clarifying legislation be made retro- 
active to January 1, 1941. 

As I have indicated above, the harmful consequences of the change in 
G. L. (Ter. Ed.) c. 116, § 5, resulting from the enactment of St. 1946, c. 584, 
§ 6, is restricted to the veteran himself and not to his stated dependents. 
This is because of the fact that while the language of the amendment as 
to the veteran himself is that he be "eligible to receive veterans' benefits," 
the phrase used with regard to the settlement of his specified relatives is 
"qualified by his service to receive such benefits." Thus the more liberal 
provisions of G. L. c. 116, § 5, inserted therein by St. 1926, c. 292, are re- 
tained so far as concerns the settlements of the stated relatives of the 
veteran, but the settlement of the veteran himself is controlled by the much 
more restricted provision contained in G. L. c. 116, § 5, prior to its amend- 
ment by St. 1926, c. 292. In consequence of this difference in language, 
the situation is that the provisions of G. L. (Ter. Ed.) c, 116, § 5, as amended 
by St. 1946, c. 584, § 6, will apply to prevent the loss of the settlement in 
town A of the parent of the veteran referred to by you, because she has not 
failed "to reside in the commonwealth for five consecutive years", nor has 
she acquired a new settlement. 

Not only did the change in G. L. (Ter. Ed.) c. 116, § 5, effected by St. 
1946, c. 584, § 6, result in no change in substance in the provision with re- 
gard to the determination of the settlements of the stated relatives of the 
veteran, but the amendment of 1946 would not have a retrospective effect. 
See Town of Lexington v. Commonwealth, 279 Mass. 571, in which it was 
held that St. 1926, c. 292, was not retrospective in effect. The result is 
that even under the statute as amended, veterans who had acquired settle- 
ments prior to January 1, 1947, under the provisions of G. L. (Ter. Ed.) 



P.D. 12. 69 

c. 116, § 5, as it read prior to the amendment of 1946, could lose such settle- 
ments only upon the expiration of the periods of time stated in the section 
computed from the effective date of the 1946 amendment. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Logan Airport — Lack of Authority in Police Commissioner of Boston to 
License Sight-seeing Automobiles at the Airport. 

April 23, 1948. 

Hon. Thomas F. Sullran, Police Commissioner for the City of Boston. 

Dear Sir: — In a re(;ent letter you ask whether the operation of a sight- 
seeing bus tour exclusively on Logan Airport property would be embraced 
within the provisions of St. 1931, c. 399, which give the police commissioner 
for the city of Boston exclusive authority to license in said cit}^ sight- 
seeing automobiles and the persons operating them as drivers. 

Inasmuch as Logan Airport is owned and operated by the Common- 
wealth, it is my opinion that your exclusive licensing authority as above 
described would not extend to a sight-seeing bus operated exclusively on 
Logan Airport property. 

Very truly yoiu's, 

Clarence A. Barnes, Attorney General, 



Metropolitan District Commission — Division of Personnel and Stajidardi- 
zation — Employees of Construction Division. 

April 27, 1948. 
Metropolitan L)istrict Commission. 

Gentlemen: — You have asked my opinion in a recent letter as to 
whether your commission has authority ''to continue employment of Con- 
struction Division personnel without the approval of th(^ Division of Per- 
sonnel and Standardization." 

I answer your question to the effect that you hav(> such authority and 
that the Division of Personnel and Standardization is not authorized to 
deal with such employees or their classifications or salaries under G. L. 
(Ter. Ed.)c. 30, sS' 45-50. 

St. 1947, c. 583, abolished the Metropolitan District Water Supply Com- 
mission and transferred all its "functions, I'ights, powers, duties, obliga- 
tions and properties to" your commission as its lawful successor. Among 
the rights and powers V(\sted in the Metropolitan District Water Supply 
Commis.sion by St. 1926, c. 375, § 2, was the authority to appoint and to 
remove such assistants as it deemed necessary to carry on its work and to 
fix their compensation in accordance with its own rules, approved by the 
Gov^einor and Council, and such appointments were specifically stated 
not to be subject to classification under G. L. (Ter. Ed.) c. 30, i^§ 45-50. 
It was also stated that the civil service law should not apply to removals. 

This authority to make such appointm(>nts and to fix compensation, 
regardless of the Division of Personnel and Standardization whose powers 
in this respect are derived from G. L. (Ter. Ed.) c. 30, §v^ 45-50, was trans- 



70 P.D. 12. 

ferred to and became vested in your commission and is to be exercised by 
it in regard to the employees concerning whom you inquire. 

With regard to these employees, section 2 of said chapter 583 provided 
specifically for their transfer as temporary non-civil service employees, 
without loss of rights, to a Division of Construction within the jurisdiction 
of your commission. It was specifically provided by this section that none 
of the provisions of the civil service law should apply to'such employees. 
No new provision concerning the compensation of employees, which might 
have been taken to have worked a repeal of the power to fix the compen- 
sation of the employees vested in the old commission and transferred to 
your commission, was set forth in said chapter 583. 

There is nothing in said chapter 583 to indicate any intent on the part 
of the Legislature to destroy this particular authority granted to the old 
commission and transferred to your commission and to place such author- 
ity in the hands of the Division of Personnel and Standardization, either 
by way of original action on the part of such division or by way of approval 
on its part. In other words, the Legislature has seen fit to place the em- 
ployees in question outside the sweep of both the civil service law and the 
provisions of G. L. (Ter. Ed.) c. 30, §§ 45-50. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veterans — Retirement Alloioances — Federal Grant. 

May 4, 1948. 
Hon. Fred A. Moncewicz, Comptroller. 

Dear Sir : — Replying to your recent letter relative to retired veterans 
who, at the time of their retirement, were employed by the Department of 
Labor and Industries, Division of Employment Security, inasmuch as the 
applicable statutes, G. L. (Ter. Ed.) c. 32, §§56 and 57, provide that the 
retirement allowance shall be ''payable from the same source" as that 
which paid the veteran's compensation in the grade which he held at the 
time of his retirement, and as it appears from the facts, set forth in your 
letter that at the time of retirement the veterans as to whom you inquire 
had their compensation paid to them in full from a grant from the Federal 
Government, I am of the opinion that the retirement allowances should be 
paid likewise from the Federal grant made for the purpose of taking care 
of the administration of the said Division of Employment Security. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 

Constitutional Law — Delegation of Power to an Administrative Body 
Equivalent to Authority to Legislate. 

May 13, 1948. 

House Committee on Bills in the Third Reading. 

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

"The House Committee on Bills in the Third Reading respectfully 
requests your opinion in writing as to whether or not House, No. 1973, 
entitled 'An Act relative to adulteration, misbranding and dangerous 



P.D. 12. 

71 

CoSoZlll/h^ ^T.l' 1?^l^^^S''^ provision of the Constitution of the 
Commonwealth or of the United States, with particular reference to the 
provisions cc^ntained in ines 38 to 44 of section 3 and reading JsTolbN^- 
any other drug deemed by the department of public health .^aer a public 
hearing and a ter consultation with the board of registration in phaimacv 
to be a harmful drug. The said department shallS/y ride o' SaS 
make public any such additional drug deemed to be a harmful chug ''' 

18?^^ inTl'^^T "^ fTI'^^o? °^ ?'."'^' ?^" 1^^'^' i^^^'-t'^^g ^ "«^v section 
18/ A m G. L. (Ter. Ed ) c. 94, prohibit the sale or dispensing of "harmfid" 
drugs to any person other than a physician, dentist or vetefinaria except 
upon written prescription by a physician, dentist or veterinaHan Viola- 
both ■"'' """''"'' ^^'^^ '' punishable by fine, imprisonment or 

The phraseology of the section purports to define the words "harmful 
drug as meaning and including certain specifically named drugs and 
"any other drug deemed by the department of public health, after a public 
hearing and after consultation with the board of registratioA in nharmacN^ 
to be a harmful drug. The said department shalf bv ru"e or regSon 
make public any such additional drug deemed to be a'harmful drug," 
as set forth in your above letter. 
certSytlV' ^ '^^^"*^ ^''^'''"^'^ ^'^^ P^""^^ provisions, the standards of 

!!.pnf '''tk'''' '"^ ^^T depending primarily upon civil sanction for enforce- 
ment. The crime 'must be defined with appropriate definitene.ss.' . 
Iheie must be ascertainable standards of guilt. Alen of common intelli- 
gence cannot be required to guess at the meaning of the enactment," 

KoWr333'u'^S^^507 "^''"''' ^""'"'^ ""^ ^^"^ ^""'^^"^ ^^""^^^ ''' ^^'''^'''' ''■ ^'"^ 
The word "harmful" is susceptible of a wide variety of interpretations 
Its employment in the quoted phrase of said section 3 does not, even when 
read in the whole context of the statute, furnish anv proper klnX -d to 
^wl *^ P^T^'^r^,^ ''^ P"^^^^ H^^'th in determining what Is a drug 

latuie to be so "harmful" or injurious to man or beast as to warrant 
limitation of their sale. "Harmful" is not a word of definil and p edse 
f^'^th^ "tTi'^ 'T' ^^'d^ly ^-ariant degrees of hurtfulness, ranging 
hom that which barely escapes being innocuous to that which is mortally 

injurious. >^i^LKJn,aii.y 

The Legislature may delegate to executive or administrative bodies 
arge discretion to be exercised within defined fields to carrv out a specific 

Sn}^7%^''^''^^,J'J''K'\^^^^ -^^^ ^^- 396, 400; Co^unoZ 

weath V. Town of Hudson, 315 Ala.ss. 335. But it may not delegate to such 
bodies without the establishment of fixed standards", to which thev must 
conform, the power to create prohibitions of conduct punishable by penal 
provisions. Jhegenei'al power to legislate cannot be delegated wi hout 
^2^.1 ^QK^nn'V/^' Declaration of Rights. BrodLe v. Hev're, 
182 Mass. 598, 600; Boston v. Chelsea, 212 :\rass. 127- Ovi7iio7i of thp 

MasHvf ' '"''"• '''' '''' ^^^'^^ " ^""^"'"^^ ^'^^'•^^ ofTaiaUm 

The matter is not without some doubt but, in mv opinion, the portion 

of said section 3 to which you have directed my attention, by reason of a 



72 P.D. 12. 

lack of sufficiently defined legislative standards in the premises, delegates 
to the Department of Public Health not merely the power to carrj^ out the 
details of an expressed and fixed legislative policy but the power to legis- 
late. Hence there would be a violation of Article XXX of the Bill of 
Rights and a probable violation of the Fourteenth Amendment of the 
Constitution of the United States with relation to the general provisions 
of the said section, if the said section were enacted into law as it now stands. 
The provisions of said section 3 would appear to be so far independent 
of and severable from the other sections of the proposed bill that their 
unconstitutionality would not invalidate the rest of the measure. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



Probation Officer — County — Salary. 

May 13, 1948. 

Mr. Albert B. Carter, Commissioner of Probation. 

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

"May County Commissioners refuse to approve in toto, despite approval 
by the Administrative Committee of District Courts, salaries for full-time 
probation officers, male or female, appointed to act exclusively in juvenile 
cases pursuant to the provisions of St. 1947, c. 655?" 

St. 1947, c. 655, § 1, amending G. L. (Ter. Ed.) c. 276, § 83A, provides 
in its applicable part that : , 

"... The justices of the courts for which probation officers are 
appointed under this section shall fix the compensation of such officers 
in such amounts, not exceeding four thousand dollars per annum each, as 
may be approved by said administrative committee and the county com- 
missioners. ..." 

Before a salary for a probation officer becomes established, it must have 
the approval of both the administrative committee and the county com- 
missioners. The county commissioners, in the reasonable exercise of their 
judgment, may withhold approval of an amount fixed by the justices. 
The county commissioners may not properly act in an arbitrary fashion 
or refuse to give approval to any reasonable sum whatsoever. Every effort 
should be made by the justices and the administrative committee and the 
county commissioners to agree upon a fair sum for compensation which 
may be deemed appropriate by all three sets of officials. 
Very truly yours, 

Clarence A. Barnes, Attorney General. 



r.D. 12. 73 

Gypsy .'Ifotlis — Superintendent in Towns — Term of Office. 

May 27, 1948. 

Hon. Arthur T. L^ man, Commissioner of Conservation. 

Dear Sir: — With rolation to the position of moth .superintendent in 
municipalities, you have asked my opinion upon the following questions: 

" 1. Does St. 1946, c. 69, relieve the town of Manchester from complying 
annually with the requirements of G. L. c. 132, v^ 13, with regard to the 
appointment of a local moth superintendent? 

"2. Is the citv of Boston relieved from complying with the provisions 
of said G. L. c. 132, § 13? 

"3. If the moth superintendent of a particular town is placed under 
civil service laws, is the town relieved from making an annual appoint- 
ment, and is this Department relieved from approving or di.sapproving 
such an official?" 

1. I answer your first question in the affirmative. 

2. No legislation has been called to my attention which relieves the 
city of Boston from complying with the provisions of G. L. (Tor. Ed.) 
c. 132, >j 13, but inasmuch as you state in effect that the city has not ap- 
pointed a moth superintendent but pcn-mits the work of such a superin- 
tendent to be performed by another official in conjunction with the latter 's 
regular duties, no occasion for approval of anyone by the "forester" in 
your department arises at present. 

3. I answer both the inquiries contained in your third question in the 
negative, assuming that the law to which you have reference, by which the 
position of moth superintendent is placed under civil .service, does not 
contain specific provisions which change the term prescribed by G. L. 
(Ter. Ed.) c. 132, § 13, as amended, for such a superintendent. 

\'ery truly yours, 

Clarence A. Barnes, Attorney General. 



Metropolitan District Commission — Authority to License Motor Vehicles 
for the Carriage of Passengers in a Parkway. 

May 27, 1948. 
Metropolitan District Commission. 

Gentlemen: — In a recent letter you advise me that the Department 
of Public Utilities, by Order DPU 7890L, granted a license to the Metro- 
politan Transit Authorit}^ to operate motor vehicles for the carriage of 
passengers, authorizing operation on a route including a section of parkwaj^ 
under the jurisdiction of the Metropolitan District Commission. 

It appears from j^our letter that such license was granted after a public 
hearing, of which your commission was not directly notified, and you ask 
if such license so granted is valid. 

I assume that adequate notice of a general nature by publication or 
otherwise of the public hearing was given and that particular notice was 
given to "the mayors of the cities and the chairman of the selectmen of the 
towns . . . within which the authority may operate under" the "li- 
cense," in accordance with the provisions of St. 1947, c. 544, § 10. A par- 



74 P.D. 12. 

ticular notice to the Metropolitan District Commission is not required by 
said section 10. 

Authority to grant such a Hcense to the Metropohtan Transit Authority 
within specified hmitations for "the operation on . . . parkways and 
boulevards" is vested in the Department of Public Utilities by said St, 
1947, c. 544, § 10. It appears to have been the intent of the Legislature 
that such a license when granted should be paramount, and it follows that 
provisions of earlier statutes requiring permits for the type of transportation 
covered by the license from the Metropolitan District Commission are 
impliedly repealed. 

In my opinion the license in question is valid. 

Similar considerations also apply to possible future grants of licenses 
and permits to the Metropolitan Transit Authority by the Department of 
Public Utilities, as to which you inquire, for (a) locations on parkways 
and boulevards for tracks, poles and wires, (b) for operation on parkways 
and boulevards of motor vehicles for the carriage of passengers for hire, 
and (c) for the operation on parkways and boulevards of trackless trolleys 
with poles and wires, all of which are governed by the explicit terms of 
said St. 1947, c. 544, § 10. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Secretary of the Commonwealth — Charitable Corporation — Refusal to 
Issue Certificate of Incorporation. 

June 1, 1948. 

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

Dear Sir : — In a recent letter you have asked my opinion as to whether 
you have the authority to refuse to issue a certificate of incorporation to a 
certain proposed charitable corporation whose articles of organization 
provide for the issuance of one thousand dollars of capital stock, in spite 
of the approval of such articles by the Commissioner of Corporations and 
Taxation. 

With relation to the particular proposed charitable corporation under 
consideration, the facts of which you have informed me and the documents 
which you have laid before me show that the corporation was to be or- 
ganized by virtue of a final decree of a probate court of September 8, 1947, 
to carry out the charitable intent of a certain testator; that articles of 
organization, which were adopted September 15, 1947, were received in 
your office, transmitted to the Commissioner of Corporations and Tax- 
ation, approved by him and filed with the required fee in your office, all 
after September 18, 1947. 

St. 1947, c. 559, which by section 1 amends section 3 of G. L. (Ter. Ed.) 
c. 180, became effective on September 18, 1947. 

Said section 3 as thus amended, which you quote in your letter, reads: 

"The corporation shall be formed in the manner prescribed in and sub- 
ject to section thirty of chapter sixty-nine, section nine of chapter one 
hundred and fifty-five and sections six and eight to twelve, inclusive, of 
chapter one hundred and fifty-six, except as follows: 

"The corporation shall have no capital stock and the agreement of associa- 
tion shall omit the statement of the amount of the capital stock and the 



P.D. 12. • 

charitable corporation with capital stock was prohibked by the o^m-^^W 

of articles of organization by the said Commissioner (Sel^eVTc.m 
nnsswner of Insurance, 304 Mass. 194), nevertheless you are not repSrSi 

ment o??.rTt ? Tif^'f ""'' ''^''^ ^^'i" "^^^e certain the accompl sh" 
mei t of a result forbidden by positi^•e law and treated by the Ledskture 
as detrimental to the public welfare. ^ i^ogisiature 

nmr■f^ ^^^V"'!^""*^^^' principle of law that compulsory action by a public 
official e^ffectuatmg a result detrimental to the public welfare is not to be 

S/d- Po!.' 'rf I'?; '"!' ^^??\^'"•^ T'^'y '^y implication." llu^bal 
281 Masf 2n, 276 "' ""^ ^^^''- ^^^- *^^'^^^ ''■ ^'distrars of Voters, 

of Vhl^'lT' "i ™y «f ""«»' J'-om the foregoing considerations that, in yiew 
of the facts of which you haye apprised me relative to the dates of th^ 
presentation, appro^^al and filing of the articles of organization you have 
t ^^^^r^.^:::;^^ - ^-^ ^ --^^--^ incorpi^t-o^n^^ 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Veterans — Benefits — Need Resulting from Strike. 

July 19, 1948. 
Hon. Henry V. O'Day, Commissioner of Veterans' Services. 

be^efits^'undJ^rC WT^^'?/f^'?i-"'''^ opinion as to whether veterans' 
neiietits under G. L (Ter. Ed.) c. llo, as amended, may be paid to a veteran 
whose need for such benefits arises from the fact that lu is engagi^^ig in a 
strike against his employer with consequent cessation of wages 
thJt^^ ^^"'^^^"^'^ ^^' provided in G. L. (Ter. Ed.) c. 115; §5, 3rd par., 

"No veterans' benefits shall be paid to or for any applicant if the neces- 



76 



P.D. 12. 



It would seem that to strike and to remain on strike without seeking 
employment with a new employer is to engage in "voluntary idleness," 
as the quoted words are used in said chapter 115, and if the necessity for 
veterans' benefits "is caused by" such "voluntary idleness," under the 
terms of the statute they may not be paid. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 77 



INDEX TO OPINIONS 



22 
10 
14 
20 



PAGE 

Accident and health policy, endorsement on ; insurance; form ... 56 

Appropriation; Massachusetts Aeronautics Commission; construction . 15 

Armed forces of the United States; right of re-entry into service of present 
Port of Boston Authority of one who left the service of Authority's 

l)redecessor to enter armed forces U 

Armed forces of the United States, woman who served in; tax exemption 14 

Assistant district attorneys, membership of, in State Retirement System . 34 
Auditor; authority; accounts of Mystic River Bridge Authority 30 

Barnstable, chief and deputy chief of police of; military substitute; civil 

service 27 

Broker's license, refund of fee for; insurance 66 

Cemetery associations; proposed act with relation to; constitutional law; 

police power; Fourteenth Amendment; Declaration of Rights 63 

Charitable coriwration ; Secretary of the Commonwealth; refusal to issue 

certificate of incorporation 74 

Children, support by; Old Age Assistance; budget; standards invalid . 31 

Civil service: 
Chief and deputy chief of police of Barnstable ; military substitute 
Reallocation of state police detectives; promotional examination 
Claim against Commonwealth ; form of release ; lien of attorney 
Clam flats ceded to the United States; authority over .... 

Clamming, leases to municipalities for; conservation 

Collegiate Authoritv, Board of: 

Power to act under St. 1943, c. 571, and St. 1946, cc. 340 and 552 . . 57 

School of Pharmacy; St. 1947, c. 652 44 

Compensation of members of Outdoor AdA'ertising Authority; meetings 18 

Conservation, Actmg Commissioner of; authority 46 

Conservation : 
Authority over certam clam flats ceded to the United States . . . . 14 

Gypsy moths ; reimbursement of municipalities 29 

Leases to mmiicipalities for clamming 20 

Constitutional Law: 

Delegation of power to an administrative body equivalent to authority 

to legislate 70 

Governor and Council; meetings . ' 48 

Mj^stic River Bridge Authority; legislation impairing the obligation of a 

contract .60 

Proposed act with relation to cemetery associations; police power; Four- 
teenth Amendment; Declaration of Rights (53 

Construction Division, employees of; Metropolitan District Commission; 

Division of Personnel and Standardization 69 

Contract, legislation impairing the obligation of; constitutional law; Mystic 

River Bridge Authority 60 

Correction, Department of; defective delinquent; parole .... 47 

County; probation officer; salary 72 

Debts, liability for; soil conservation districts . 20 

DefectiA-e delhuiuent: parole; Department of Correction .... 47 
Drugs, "harmful"; constitutional law; delegation of power to an adminis- 
trative body equivalent to authority to legislate 70 

Electricians, Examiners of; only one master electrician's license under certain 

circumstances 25 



78 P.D, 12. 

PAGE 

Emergency Housing Commission; authority; variances from G. L. (Ter. 

Ed.) cc. 144 and 145 . . . .* 21 

Federal grant: 

Anticipation of; legislative authority a necessity; public welfare . . 23 

Veterans; retirement allowances 70 

Firearms : 

Department of Labor and Industries ; authority; tools .... 61 

Department of Public Safety; authority; air pistol or rifle ; permit . . 62 

Fire engines ; registration plates ; motor vehicles 40 

General Court; definition 13 

Governor, power of; summary process 26 

Governor and Council ; meetings ; constitutional law 48 

Grey lock Reservation Commission; authority; television . . . .61 
Gypsy moths : 

Reimbursement of municipalities ; conservation 29 

Superintendent in to\Mis; term of office 73 

Health, board of; regidations; plumbers; plumbing ordinances under G. L. 

(Ter. Ed.) c. 142, § 13 . . . . . . . . . .52 

Hospitals, profit and non-profit, employees of; minimum fair wage rates . 25 

Injuries; sick leave; police officer; Boston 54 

Inspector of plumbing in towns ; appointment .17 

Insurance : 

Data for rate-making purposes 38 

Endorsement on accident and health policy; form 56 

Refund of fee for broker's Ucense under G. L. (Ter. Ed.) c. 175, § 14 . . 66 

Judiciary; department; definitions; G. L. (Ter. Ed.) c. 30, § 52 . . . 58 

Labor and Industries, Department of; authority, firearms, tools ... 61 

Labor; overtime; G. L. (Ter. Ed.) c. 149, § 33A, as amended ... 30 

Labor union ; definition 33 

Lien of attorney ; claim against Commonwealth ; form of release ... 10 
Logan Airport: 

Lack of authority in Pohce Commissioner of Boston to license sight-seeing 

automobiles at the Airport 69 

Rules relative to motor traffic' in ; Department of Public Works ... 59 

Maintenance; Director of Personnel and Standardization; veterans . . 37 
Massachusetts Aeronautics Commission : 

Appropriation; construction . . 15 

Authority to accept certain realty from United States 23 

Medical panfl ; finality of finding; retirement 17 

Metropolitan District Commission: 

Authority to levy compensation assessments; St. 1945, c. 705, § 12 . . 64 
Authority to license motor vehicles for the carriage of passengers in a 

parkway .73 

Division of Personnel and Standardization; employees of Construction 

Division 69 

Traffic regulating signs .35 

Military substitute; chief and deputy chief of police of Barnstable; civil 

service 27 

Minimum fair wage rates; employees of profit and non-profit hospitals . . 25 
Motor vehicles : 
Authority to license for the carriage of passengers in a parkway; Metro- 
politan District Commission . 73 

Operator under sixteen years of age ; comity 10 

Registration plates; fire engines; apparatus 40 

Transportation of school children; school bus; authority of Department 

of Public Utilities 43 

Motor Vehicles, Registrar of; Department of Public Works; regulations 

requiring approval 51 



P.D. 12. 79 

PAGE 

Municipalities : 

Leases to, for clamming; conservation 20 

Metropolitan District Commission; authority to levy compensation 

assessments 64 

Reimliursemcnt of ; ^psy moths; conservation 20 

Mystic Hivcr Rritlgo Authority, accoimts of; Auditor; authority . 36 
Old Age Assistance: 

Budget; standards hivalid; support by children 31 

Exemptions; authority of Department of Public Welfare .... 41 

Operator of motor vehicle under sixteen years of age; comity ... 10 

Outdoor Advertising Authority ; compensation of members; meetings . . IS 

Overtime; labor; G. L. (Ter. Ed.) c. 149, § 33A, as amended ... 30 
Parkway, authority to license n^otor vehicles for the carriage of passengers 

in ; Metropolitan District Commission 73 

Payroll procedure; weekly salary payments 32 

Personnel and Standardization, Director of; maintenance, veterans . 37 
Pharmacy, Boston School of; Board of Collegiate Authority; powers; St. 

1947, c. 652 44 

pharmacy; e.xaminations ; veterans 32 

Plumbing, inspector of in towns; appointment 17 

Plumbing ordinances under G. L. (Ter. Ed.) c. 142, § 13, board of health; 

regulations 52 

Police Commissioner of Boston; lack of authority to license sight-seeing 

automobiles at Logan Airport 69 

Police Officer; Boston: 

Daj^s off 65 

Sick leave; injuries 54 

Members of immediate family 55 

Police power; constitutional law; proposed act with relation to cemetery 

associations; Fourteenth Amendment; Declaration of rights . 63 
Port of Boston Authority ; right of re-entry into service of present Authority 
of one who left the service of Authority's predecessor to enter the 

armed forces of the United States 11 

Probation, Commissioner of; salary; step-rate increases; rules and regula- 
tions of Commission on Administration and Finance not applicable . 42 

Probation officer; countj^; salary 72 

Promotional examination; civil service; reallocation of state police detectives 22 

Public Health, Department of; rules under G. L. (Ter. Ed.) c. 94, § 192 58 
Public Safety, Department of; authority, air pistol or rifle; firearms; j^er- 

mit 62 

Public warehousemen ; bonds of licensed warehousemen 21 

Public welfare; anticipation of P'ederal grants; legislative authority a neces- 
sity .23 

Public Welfare, Department of ; authority; Old Age Assistance; exemptions 41 
Public Works, Department of; rules relative to motor traffic in the Logan 

Airport 59 

Rate-making, data for; insurance 38 

Registration i)lates; fire engines; motor vehicles 40 

Regulations requiring approval of Department of Public Works; Registrar 

of Motor Vehicles 51 

Release, form of; claim against Commonwealth ; hen of attorney ... 10 

Retirement allowances; veterans; Federal grant 70 

Retirement : 
Eligibility of certain employees of University of Massachusetts to mem- 

bershi]) in State Retirement System . . . . ' . . . .34 
Eligibility for membershij) in State Retirement System of certain officers 

and employees 35- 

Medical panel ; finality of findhig 17 

Membership of assistant district attorneys in State Retirement System 34 



80 P.D. 12. 

PAGE 

School children, transportation of; motor vehicle; school bus; authority of 

Department of Public Utilities 43 

Secretary of the Commonwealth; charitable corporation; refusal to issue 

certificate of hicorporation 74 

Self -insurer; deposit and bond; workmen's compensation .... 53 
Settlement; veteran: 

Second enlistment 47 

St. 1946, c. 584, § 6 .67 

Sick leave : 

Injuries; police officer; Boston 54 

Police officer; Boston; members of immediftte family 55 

Sight-seeing automobiles at Logan Airport; lack of authority in Police 

Commissioner of Boston to license 69 

Soil conservation districts; liability for debts 20 

State police detectives, reallocation of; promotional examination; civil 

service 22 

State Retirement System: 

Eligibility for membership in of certam officers and emploj^ees . . . 35 
Eligibility of certain employees of University of Massachusetts to mem- 
bership hi 34 

Membership of assistant district attorneys in 34 

vStep-rate increases; Commissioner of Probation; salary; rules and regula- 
tions of Commission on Administration and Finance not applicable . 42 

Strike, need resulting from; veterans; benefits .75 

Summary process; power of the Governor 26 

Taxation; Veterans' Services Fund 51,56 

Tax exemption; woman who served in the anned forces of the United States; 

G. L. (Ter. Ed.) c. 59, § 5, as amended . 14 

Television; Greylock Reservation Commission; authority .... 61 

"Tempotool"; firearms; Department of Labor and Industries; authority 61 

Termination of World War II with relation to St. 1945, c. 405 ... 66 

ToAviis, moth superintendent in; term of office 73 

Traffic regulating signs; Metropolitan District Commission .... 35 

Treasurer and Receiver General ; pajToll procedure ; weekly salary payment? 32 
United States, authority to accept realty from; Massachusetts Aeronautics 

Commission 23 

University of Massachusetts, eligibility of certahi employees of to member^ 

ship hi State Retirement System 34 

Veterans : 

Benefits; need resulting from strike 75 

Dependent; wife; mother 45 

Maintenance; Director of Personnel and Standardization .... 37 

Phartaacy; exammations 32 

Retirement allowances; Federal grant 70 

Settlement; second enlistment 47 

St. 1946, c. 584, § 6 . . " 67 

Veterans' Services Fund; taxation 51,56 

Warehousemen, public; bonds of licensed warehousemen 21 

Weekly salary payments; payroll procedure .32 

Woman who served in armed forces of the United States ; tax exemption . 14 

Workmen's compensation; self -insurer; deposit and bond .... 53 

World War II, termination of, with relation to St. 1945, c. 405 ... 66