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

Public Document No. 12 



Cbe Commonttiealti) of s@assac{)usetts 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1949 




Public Document No. 12 



Cfje Commontoealtf) of ^a00ac|)U0ett0 



REPORT^* 



ATTORNEY GENERAL 



Year ending June 30, 1949 




Publication of this Document Approved bt George J. Cronin, State Purchasing Agent. 
900. 10-'50. 26708. 



State Ihmry •{ Massochuserts 
State House, Boston 






Ciie Commonttieaiti) of s^aemthuittte 



Department of the Attorney General, 
Boston, January 11, 1950. 

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, 1949. 



Very respectfully, 



FRANCIS E. KELLY, 

Attorney General. 



Cfje Commontoealt!) of 0ias0ac!)U0ett0 



DEPARTMENT OF THE ATTORNEY GENERAL 
State House 



Attorney General 
FRANCIS E. KELLY 



Assistants 



Timothy J. Murphy 
Francis J. Roche ^ 
Henry P. Fielding 
Garrett J. Barry 
Charles Alpert- 
Bernard J. Killion ^ 
William S. Kinney 
H. William R-adovsky^ 
Edward P. Healy 
David Miller 

Je ANNETTE C. 



Sidney R. Neustadt 
David H. Stuart ^ 
James J. Bacigalupo 
John J. Bresnahan 
Charles R. Desmarais 
Lenahan O'Connell 
Joseph S. Vahey 
James G. Wolff 
Eva G. Silva 
Emma Fall Schofield * 
Sullivan 



Assistant Attorneys General assigned to State Housing Board 
Walter H. Foster * Thomas C. Dolan 

Maurice M. Goldman 

Assistant Attorneys General assigned to Division of Employmetit Security 
Albert M. Cicchetti Edward J. Nantoski 

Assistant Attorneys General assigned to Veterans' Division 
David N. Roach Ernest Brenner 

Secretary to the Attorney General 
James T. Burke 

Chief Clerk to the Attorney General 
Harold J. Welch 



List Clerk to the Attorney General 
James J. Kelleher 

Director of Division of Collection's 
W. Forbes Robertson 



1 Specially assigned to N. Y., N. H. & H. R.R. case. 

^ Specially assigned to New England Tel. & Tel. Co. case. 

' On leave of absence. 



* Resigned Apr. 21, 1949. 
s Resigned June 30, 1949. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1948, to June 30, 1949 



A ppropriations 

Attorney General's salary .... 
Administration, personal services and expenses 
Claims, damages by state-owned cars . 
Small claims . . . . . 

National Association of Attorneys General . 
Unclaimed bank deposits recovery 
"Veterans' legal assistance . . 



Total 



Expenditures. 

Attorney General's salary .... 

Administration, personal services and expenses 
Claims, damages by state-owned cars . 
Small claims ...... 

National Association of Attorneys General . 
Unclaimed bank deposits recovery 
Veterans' legal assistance .... 

Total 



$10,000 00 
209,100 00 
12,000 00 
10,500 00 
1,000 00 
20,000 00 
20,000 00 

$282,600 00 



$10,000 00 

206,256 32 

12,000 00 

10,500 00 

1,000 00 

5,437 86 

16,657 61 

$261,851 79 



Financial statement verified (under requirements of c. 7, § 19, of the General Laws) 
December 14, 1949. 



By JOSEPH A. PRENNEY, 

For the Comptroller. 



Approved for publishing. 



FRED A. MONCEWICZ, 



Comptroller 



C!)e Commontoealtft of ^ai9f0ac|)U0ett0 



Department of the Attorney Gener.-vl, 
Boston, January 11, 1950. 

To the Honorable Senate and Hous? 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, 1949, totaling 13,009, are tabulated as follows: 

Extradition and interstate rendition ........ 109 

Land Court petitions . . . . . . . . .116 

Land damage cases arising from the taking of land: 

Department of Public Works . . . . . . . .134- 

Metropolitan District Commission . . . . . . . .10 

Department of Conservation ......... 1 

Miscellaneous cases, including suits to require the filing of returns by corpora- 
tions and individuals and the collection of money due the Commonwealth 5,319 
Estates involving applications of funds given to pubUc charities , . . 895 

Settlement cases for support of persons in state hospitals .... 164 

Pardons : 

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

c. 127, § 152, as amended 143 

Workmen's compensation cases, first reports ....... 2,386 

Cases in behalf of Division of Employment Security . . . . .1,186 

Cases in behalf of Veterans' Division ........ 2,546 

The official duties and responsibilities of the Attorney General cover a 
wide and ever increasing field. In a general way it may be stated that 
these duties are principally in part as follows: To appear for the Com-, 
monwealth and for State departments, officers, boards and commissions 
in all suits and other civil proceedings in the State and Federal courts in 
which the Commonwealth is a party or is otherwise interested. It is 
within his duties and province when called upon by the Governor and 
Council or by either branch of the General Court to give his opinion on 
questions of law submitted to him; to advise with the heads of the various 
State departments and to give his written formal opinion on questions of 
law to those oSicials upon their written request relative to matters arising 
in the course of their official duties; to consult and advise with the sev- 
eral district attorneys throughout the Commonwealth on matters relating 
to their duties; to enforce the due application of charitable funds; the 
examination and approval of town by-laws; the handling of matters per- 
taining to interstate rendition and international extradition of fugitives 
from justice, including appearances in court whenever occasion arises, and 



8 P.D, 12. 

reporting to and advising the Governor of the Commonwealth in this 
field upon his express or implied request; the prosecution and defense of 
extraordinary remedies; the bringing of informations in various fields 
where in his sound discretion he deems that course necessary in the public 
interest; and the representing of justices of the courts, upon request, in 
proceedings growing out of the exercise of their judicial functions where 
the justices are made parties to the proceedings. 

When I became Attorney General in January, 1949, fully realizing the 
importance of the high constitutional office to which the people of the 
Commonwealth had elected me, I carefully gathered about me a staff of 
assistant attorneys general selected by me on the basis of character, learn- 
ing, training and experience, and of favorable reputation in their com- 
munities as practicing members of the legal profession. Several of my 
assistants so chosen have had not only long-established and successful ex- 
perience as lawyers in private practice but have previously held important 
posts in official pubhc life. The assistant attorneys general and other 
assistants appointed by me have served the Commonwealth with com- 
mendable abihty, faithfulness and devotion to the multitude of duties 
assigned them by me as Attorney General. 

The civil service employees in the Department of the Attorney General 
who were holding their positions when I took over the office have all been 
retained. These include the Chief Clerk to the Attorney General, the 
List Clerk to the Attorney General, the Director of the Division of Collec- 
tions, the telephone operator, the stenographic staff, and other clerical 
assistants. All of these have rendered faithful, intelligent and efficient 
service which has been of great assistance to me in directing and actively 
participating in the official business of the department. 

Staff meetings of the assistant attorneys general and of other assistants 
in the Department of the Attorney General have been held with me as 
Attorney General from time to time, which meetings have resulted in 
efficiency in the conduct of the official legal business of the Commonwealth. 

There has been established and successfully carried on in the Depart- 
ment of the Attorney General a division devoted to the interests and con- 
stantly arising problems of veterans. Matters concerning veterans have 
been referred to this division with daily frequency by veterans' organiza- 
tions as well as by State, county, city and town officials. In this division 
for the period covered by the present report the case load has numbered 
in excess of six thousand matters of all kinds. There have been considered, 
among other case incidents, questions involving bonuses, civil service, 
contracts, discharges, domestic problems, education, employment, evic- 
tions, housing, pension problems and taxation. Since the termination of 
hostilities the problems of the veterans have remained and have become 
in numerous instances complex and varied and will, for some time to come, 
require combined and sustained understanding and consideration. I am 
deeply interested in the progress of the Veterans' Division in the Depart- 
ment of the Attorney General and recognize the benefits it has contributed 
to veterans who have so honorably served their country in time of war. 

At common law and by statute the duty is incumbent upon the Attor- 



P.D. 12. 9 

ney General to enforce the due application of funds given or appropriated 
to public charities within the Commonwealth. I delegated for this im- 
portant work capable assistants who were qualified by long experience- 
and training in this highly specialized professional work. Their duties 
have been diligently and successfully performed in all instances with grati- 
fying and substantial results. 

When I assumed the office of Attorney General on January 19, 1949, 
there was pending in the office removal proceedings brought by the Com- 
missioner of Correction against Dr. Miriam Van Waters, who had been 
for many years and is now the Superintendent of the Reformatory for 
Women at Framingham. Hearings on these proceedings had begun before 
the Commissioner of Correction prior to my assuming office and were 
conducted before him under the provisions of G. L. (Ter. Ed.) c. 30, § 9B. 
After the conclusion of the hearings before the Commissioner of Correc- 
tion and after adverse findings had been made by the Commissioner, 
Dr. Van Waters requested a hearing before an impartial commission of 
three members to be appointed under the enabhng statute by the Gov- 
ernor. Governor Dever thereupon appointed an impartial commission of 
three members, consisting of Erwin N. Griswold, Dean of Harvard Law 
School, as chairman of the commission, and Caroline J. Putnam and 
Robert G. Clark, Jr., as the other two members. Under the statute the 
members so appointed by the Governor were clothed with full authority 
to affirm or reverse the decision of the appointing authority, the Commis- 
sioner of Correction. 

To conduct the hearings before the Governor's impartial commission I 
selected and designated two experienced and seasoned assistant attorneys 
general on my staff to handle the matter for the Department of the 
Attorney General. These two assistants, under my instructions, made a 
careful and thorough study of the situation and approached the important 
duty assigned to them with open minds and with the sole desire and pur- 
pose to see to it that justice to all concerned was fairly and impartially 
done. Public hearings were held before the Governor's commission be- 
ginning on February 21, 1949, and concluding on xVlarch 4, 1949. The 
impartial commission rendered its decision to His Excellency the Gover- 
nor on March 11, 1949, reversing the action of the Commissioner of 
Correction in removing Dr. Van Waters. Thereupon Dr. Van Waters 
was reinstated in her office as Superintendent of the Women's Reforma- 
tory at Framingham and forthwith assumed her duties. 

Following the reinstatement of Dr. Van Waters I was asked for an 
opinion by the Department of Correction concerning, in particular, the 
statute providing for the indenturing of women inmates of the Reforma- 
tory at Framingham. In that opinion, rendered by me in June, last, I 
stated in part: "The principal statute (G. L. (Ter. Ed.) c. 127, § 85) herp 
concerned was passed by the Legislature seventy years ago and at the time 
of its passage was an epochal advance along constructive humanitarian 
lines. However, since its original enactment in 1879 the statute has re- 
mained unchanged in its essential terms and expressed purposes. It is 
common knowledge that in the meantime great advances and progress 



10 P.D. 12. 

have been made iti the development and growt.h of penological science and 
practice. Legislation has not kept pace with that development and growth. 
■ The rehabilitation of women inmates in institutions such as the Reforma- 
tory for Women at Framingham is a worthy and humanitarian public 
purpose." In that opinion I further stated: ''I intend to recommend to 
the Legislature in my annual report that it consider amending and liberal- 
izing changes in the existing law, to the end that it may be made more 
completely adaptable to modern enlightened views in the matter of the 
rehabilitation of women inmates in reformatory institutions." This is a 
highly important public purpose and I now in this report, in keeping with 
my promise, again call attention to the matter and most earnestly recom- 
mend to the General Court the adoption of appropriate legislation such 
as will place Massachusetts clearly and definitely to the front, in line with 
sound, modern penological science and practice. 

Under the provisions of G. L. (Ter. Ed.) c. 40, §§ 27 and 32, a duty is 
placed upon the Attorney General of examining town by-laws, which must 
under the law be submitted to him for his official approval before they 
may become effective. Recognizing the importance of this particular 
function of the Attorney General, I determined immediately after assum- 
ing office that this, as well as other work in the Department of the Attorney 
General, should not be performed in a merely perfunctory or pro forma 
manner. I assigned an assistant attorney general whose training and legal 
experience admirably fitted him to efficiently handle this important branch 
of work with results that have been most satisfactory. There was early 
called to my attention a by-law adopted in 1946 by one of the towns in 
the Commonwealth, within 20 miles of the State House, which contained 
highly objectionable and discriminatory provisions. This by-law, which in 
its efi'ect excluded from the town all religious educational institutions, 
whether such institutions were Catholic, Protestant or Jewish, was ap- 
proved by one of my predecessors in office. It is expected that the fair- 
ness and good sense of the voters of the town in question will see to it at 
their annual town meeting in 1950 that this objectionable town by-law is 
abolished, in keeping with the best traditions of our freedom-loving Com- 
monwealth. In view of the foregoing I urge and recommend that legisla- 
tion be adopted embodjdng more effective and prompt remedial provisions 
to the end that such a by-law as that in question may never again be placed 
on the books of any community in Massachusetts. 

It has been called to my attention that certain provisions of chapter 119 
of the General Laws should be amended with reference to the exercise of 
the right of appeal of wayward or delinquent children from juvenile and 
district courts to the superior court. The law now requires that if a child 
is summoned to appear or is brought before such court upon a warrant at 
least one of the parents must be summoned, if either is known to reside 
within the Commonwealth, and if there is no such parent then its lawful 
guardian must be summoned. 

The child itself is entitled to be notified of its right of appeal to the 
superior court both from the finding and from the disposition of the case 
in the lower court, but under the law as it now stands this right is exclusive 



P.D. 12. 11 

with the child. The law should be amended so as to permit the parent or 
guardian of the child to exercise the same rights of appeal in behalf of 
the child, if such parent or guardian deems that course a proper one under 
all the circumstances, if the child itself neglects or refuses to exercise its 
right to appeal to a higher court for a jury trial. 

We are fortunate in Massachusetts that the juvenile and district courts 
have been manifestly fair and zealous in seeing to it that the rights of 
children brought into the court are at all times fully protected. However, 
I am calhng the attention of the Legislature to an obvious defect in the 
law itself that it would be well to rectify as a matter of good sense and 
caution by appropriate amendment. 

Under the terms of G. L. (Ter. Ed.) c. 123, §§ 89A and 89B, probate 
judges have authority, upon application, to consider the discharge of in- 
mates from institutions having custody of defective delinquents. Cases 
arise where inmates are considered eligible for release, provided strict 
supervision may be exercised over them, but who are in reasonable proba- 
bility unfit for outright release without supervision. Provision is afforded 
for parole to these inmates once every three years. An inmate rejected in 
one year by the parole board may apply thereafter to the probate courts 
and the probate judge sitting on his case has the alternative of remanding 
him back to the institution for a period of further long waiting until he is 
once again efigible for consideration for parole or releasing him outright. 
Some probate judges, being mindful of the dangers attendant upon out- 
right release in many cases, remand the petitioning inmate back to the 
institution. Qualified psychiatrists and penologists are of the belief that 
the incarceration of an inmate in an institution for defective delinquents 
may be, in many instances, mentally and morally deteriorating. The 
potential serious consequences of keeping an inmate in an institution who 
is qualified for supervised release is apparent. Probate judges in several 
counties have suggested affording them some power to arrange for a super- 
vised release, being mindful of the dire need of an improvement in the 
present state of the law. After due consideration it is my suggestion that 
legislation be enacted whereby the probate court may, in addition to its 
power to discharge or remand, be empowered to release an inmate of an 
institution for defective delinquents with some method of supervisory care 
provided to make more likely the former inmate's lawful behavior and to 
thereby afford him better opportunities for rehabilitation. 

Respectfully submitted, 

FRANCIS E. KELLY, 

Attorney General. 



OPINIONS. 

State Housing Board — Civil Service Status of Employees. 

July 6, 1948. 
Hon. Thomas J. Greehan, Director of Civil Service. 

Dear Sir: — In a recent letter you have asked my opinion as to whether 
persons employed by the newly created State Housing Board as experts, 
counsel, clerks and assistants, under the terms of G. L. (Ter. Ed.) c. 6, 
§ 64, inserted by St. 1948, c. 260, are within the sweep of the civil service 
law and their appointment and removal to be governed accordingly by 
the provisions of G. L. (Ter. Ed.) c. 31, as amended, and the rules made 
thereunder. 

I am of the opinion that such employees are not within the sweep of 
the civil service law and their employment is not to be governed by said 
chapter 31 and the rules made thereunder. 

It is true that it is ordinarily to be assumed that positions established 
in the service of the Commonwealth are intended by the Legislature to 
be within the civil service system. It is also true that ordinarily a grant 
merely of power "to appoint and remove" employees, without qualifying 
or modifying phrases, does not of itself indicate a legislative intent to 
override such an assumption. Walsh v. Commissioners of Civil Service, 
300 Mass. 244. 

The instant statute in which the unmodified words "appoint and re- 
move" occur must, however, be interpreted in connection with G. L. 
(Ter. Ed.) c. 121, as amended by St. 1946, c. 574, known as the Housing 
Authority Law, which established the predecessor of the present State 
Housing Board and which is to be read with the amending statute, St. 
1948, c. 260, in construing the latter enactment. It is a familiar rule of 
statutory construction that statutes dealing with the same subject matter, 
or dealing with an original and successor commission or board, are to be 
read together as far as may be for the purpose of properly interpreting 
the later measure. 

So read, it is apparent from the text of said St. 1948, c. 260, that the 
present State Housing Board is vested with all the powers and authority 
of its predecessor. One of these powers possessed by the predecessor board 
was that of appointing officers, agents or employees without reference to 
the civil service law, and it was expressly provided by said St. 1946, 
c. 574, § 26R, that such employees so appointed should not be governed 
by the civil service law and rules, G. L. (Ter. Ed.) c. 31, as amended. 

The present board possesses this power by the explicit vesting in it of 
the authority and powers of its predecessor, and the reference thereto as a 
power to "appoint" and "remove" in G. L. (Ter. Ed.) c. 6, § 64, as in- 
serted by St. 1948, c. 260, § 3, does not under the circumstances indicate a 
legislative intent to qualify or diminish the extent of such power nor to 
Kmit it to a power of appointment and removal subject to the provisions 
of the civil service law. 



P.D. 12. 13 

The sentence in said St. 1948, c. 260, § 6, which reads: 

"All employees of the state board of housing on the effective date of 
this act, shall be transferred to and shall serve under the state housing 
board established by tliis act, without impairment of any of their rights 
or of their civil service status, if any," 

has no tendency to show a legislative intent at variance with that to 
which I have already referred. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Board of Dental Examiners — Proceedings as Public Records. 

July 7, 1948. 
Mrs. Irene K. Richards, Director of Registration. 

Dear Madam: — You have asked my opinion as to whether or not there 
is any obligation on the part of the Board of Dental Examiners to furnish 
a transcript of the testimony of a witness who has testified before the 
Board of Dental Examiners to a person requesting the same. 

It is my opinion that such a request does not relate to a public record 
and consequently there is no obligation on the part of the Board of Dental 
Examiners to furnish a transcript of the testimony of a witness to any 
person requesting it, even though the testimony had some reference to 
the person making the request. 

General Laws (Ter. Ed.) c. 4, § 7, par. 26, defines public records as 
follows : 

'"Public records' shall mean any written or printed book or paper, 
any map or plan of the commonwealth, or of any county, city or town 
which is the property thereof, and in or on which any entry has been made 
or is required to be made by law, or which any officer or employee of the 
commonwealth or of a county, city or town has received or is required to 
receive for filing, and any book, paper, record or copy mentioned in sec- 
tions five to eight, inclusive, and sixteen of chapter sixty-six, including 
public records made by photographic process as provided in section three 
of said chapter." 

General Laws (Ter. Ed.) c. 66, § 6, provides: 

"Every department, board, commission or office of the commonwealth 
or of a county, city or town, for which no clerk is otherwise provided by 
law, shall designate some person as clerk, who shall enter all its votes, 
orders and proceedings in books and shall have the custody of such books, 
and the department, board, commission or office shall designate an em- 
ployee or employees to have the custody of its other public records. Every 
sole officer in charge of a department or office of the commonwealth or 
of a county, city or town having public records in such department or 
office shall have the custody thereof." 

General Laws (Ter. Ed.) c. 66, § 10, provides: 

"Every person having custody of any public records shall, at reasonable 
times, permit them to be inspected and examined by any person, under 



14 P.D. 12. 

his supervision, and shall furnish copies thereof on payment of a reasonable 
fee. In towns such inspection and furnishing of copies may be regulated 
by ordinance or by-law." 

A transcript of the testimony of a witness is not "any written or printed 
book or paper . . . in or on which any entry has been made or is required 
to be made by law, or which . . . [the Board of Dental Examiners] has 
received or is required to receive for filing . . ." by G. L. (Ter. Ed.) 
c. 4, § 7, par. 26, nor does it come within the language of G. L. (Ter. Ed.) 
c. 66, § 6, providing that the board "shall enter all its votes, orders and 
proceedings in books ..." 

Since the transcript of the testimony of a witness does not come within 
the provisions of G. L. (Ter. Ed.) c. 4, § 7, par. 26, nor of G. L. (Ter. Ed.) 
c. 66, § 6, in my opinion, it is not a public record copy of which the Board 
of Dental Examiners is required to furnish under the provisions of G. L. 
(Ter. Ed.) c. 66, § 10. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Insurance — Acquisition of Capital Stock by Life Insurance Company. 

July 13, 1948. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — In a recent letter you have directed my attention to a 
sentence in G. L. (Ter. Ed.) c. 175, § 66, which reads as follows: 

"No such life company shall invest in, acquire or hold directly or in- 
directly more than ten per cent of the capital stock of any corporation, 
nor shall more than ten per cent of its capital and surplus be invested in 
the stock of any one corporation," 

and have, in a series of questions, asked my opinion in effect as to the 
meaning of the words "capital stock" as used in the first clause of such 
sentence. 

The words "capital stock" have no fixed and unchanging meaning, but 
when employed in statutes their connotation will depend upon the con- 
text in which they occur and the subject matter to which they are applied. 
Hood Rubber Co. v. Conimonwealth, 238 Mass. 369-371. 

The sentence in its present form appears in St. 1907, c. 576, § 36. This 
statute was a codification and enlargement of the general insurance law 
of the Commonwealth and was based largely upon a Report of the Joint 
Special Legislative Committee on Insurance (1907 House Doc. 1085). 
That report appears to have been influenced to a great extent by the 
report of the Armstrong Committee, so called, of the New York Legisla- 
ture. The Armstrong Committee report was the result of various in- 
vestigations of the manner in which certain great life insurance companies 
had been carrying on their business. 

It is plain that the second clause of the said sentence was enacted as a 
check upon unwise investment of the funds of life insurance companies 
through lack of proper diversification. 

It is my opinion that the first clause of said sentence, in which the 



P.D. 12. 15 

words "capital stock" occur, was intended by the Legislature to prevent 
the absorption of business corporations by life insurance companies. 

My opinion in this respect is confirmed by the statement of the special 
committee in its said report with relation to the provisions here under 
consideration, which statement was as follows: 

"An insurance company should not ... by a large stock ownership, 
acquire the control of other enterprises." 

Control of other corporate enterprises could be attained by an insur- 
ance company by the acquisition of a majority of the shares of what you 
have termed in your letter the "voting stock" of corporations, ordinarily 
the common stock. 

The intent of the Legislature expressed in said first clause of the quoted 
sentence would obviously be carried out by a prohibition against the 
acquisition of more than ten per cent of the voting stock of any corporation. 

Such a prohibition is a recognized method of protecting corporations 
from the control of holding companies. Sleekier v. Pennroad Corp., 44 
Fed. Sup. 800-803. See Flynn v. Dept. of Public Utilities, 302 Mass. 
131, 133. 

The first three specific questions upon which you have asked my opinion 
in relation to the subject matter of your letter read: 

"1. Does the term 'capital stock' refer to shares of voting stock? 

"2. Does the term 'capital stock' refer to the total number of shares 
of voting stock authorized or does it refer to the total number of shares 
of voting stock which have been issued? 

"3. If the answer to No. 1 is in the affirmative, does the ten per cent 
limitation apply to 

(o) The total amount of money originally invested in the common 
stock, 

(6) The total book value of the common stock, or 

(c) The total market value of the common stock? " 

In view of the considerations which I have already set forth, I answer 
your first question in the affirmative. 

I answer your second question to the effect that the words "capital 
stock" as used in said section 66 refer to the total number of shares of 
voting stock which have been issued. 

I answer your third question as to all its subdivisions, (a), (b) and (c), 
in the negative. The ten per cent limitation appHes to the number of 
shares of stock issued. 

My aflfirmative answer to your first question makes unnecessary any 
answer to your fourth question in any of its subdivisions. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Police and Firemen — Vacations. 

July 13, 1948. 

Hon. Thomas J. Greehan, Director of Civil Service. 

Dear Sir: — You have asked my opinion as to whether vacations of 
policemen and firemen of Springfield are governed by G. L. (Ter. Ed.) 



16 P.D. 12. 

c. 41, § 111 A, or whether they are now controlled by G. L. (Ter. Ed.) 
c. 41, § 111, as amended by St. 1948, c. 330. 

I am of the opinion that the vacations of the regular and permanent 
police and fire forces of Springfield are governed by the terms of section 
111 A and are not affected by the provisions of section 111, as amended. 

Section 111, prior to 1941, was by its phraseology applicable only to 
the vacations of laborers. 

In 1929, by chapter 260 of that year, special provision was made for 
vacations for the regular and permanent police and fire forces of towns. 
In 1934, by chapter 107 of such year, these special provisions were made 
applicable to police and fire forces in cities as weU as in towns. 

In 1941, by chapter 368 of that year, the Legislature by amendment of 
said section 111 extended the application of the provisions of section 111 
for vacations to "all permanent civil service employees" regularly em- 
ployed in a city or town. The provisions for vacations differ in certain 
respects from those set forth for police and firemen in said section 111 A. 

The enactment of section lllA in its original form in 1929 and in its 
amended form in 1934 indicated a legislative intent to establish a separate 
law to regulate the vacations of members of regular and permanent police 
and fire forces. It was to become effective in any municipality which 
accepted it, irrespective of whether the municipality had accepted certain 
earlier enactments whose prior acceptance was then a prerequisite to the 
acceptance of section 111. 

A statute is not to be regarded as repealed by implication in the absence 
of such a conflict between an old and a new measure as to indicate a plain 
legislative intent to wipe out the older law by reason of manifest incon- 
sistency with the newer. No such manifest inconsistency exists between 
the amended form of section 111 and section lllA. Section lllA embodies 
a separate and independent law governing pohce and firemen as such. 
The inclusion of "all permanent civil service employees" within the sweep 
of section 111 by the amendment was not, in my opinion, intended by the 
Legislature to render the two sections inconsistent, and the quoted phrase 
as so used was intended to be read as not including within its meaning the 
regular and permanent police and fire forces for whom special provision 
had already been made in the separate enactments embodied in section 
lllA. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



State Examiners of Plumbers — Duties — Rules. 

July 19, 1948. 

Mrs. Irene K. Richards, Director of Registration. 

Dear Madam : — This acknowledges your letter relative to the authority 
and duties of the State Examiners of Plumbers. 
1. Your first query reads as follows: 

"If they embodied in their duties such activities as checking infringe- 
ment of the license law or evasion of codes adopted by cities or towns in 
accordance with chapter 143 or otherwise, by either licensed or unlicensed 
plumbers; complaints of which are received in this office, filed by private 



P.D. 12. 17 

citizens, master and journeyman plumbers' organizations, inspectors of 
plumbing, or others, does the above constitute a legal duty of the State 
Examiners of Plumbers and their investigators?" 

It is the long standing practice of this office not to render opinions of 
law upon general abstract questions such as this one. However, for your 
guidance let me sa}^ that the duties of the Examiners of Plumbers are, in 
a general way, to provide for the examination of applicants for licenses 
for master and journeyman plumbers and to grant licenses in proper 
instances. The examiners also have the power to suspend or i-evoke 
licenses or certificates issued by them "upon the violation by the holder 
thereof of any statute, ordinance, by-law, rule or regulation relative to 
plumbing, upon failure or refusal of the holder thereof to comply with the 
rules and requirements of the examiners, or for other sufficient cause." 
(G. L. [Ter. Ed.] c. 142, § 6). 

The Board of State Examiners of Plumbers is not primarily a detective 
agency. Section 7 of said chapter 142 recognizes that fact in providing 
that: 

"If in the opinion of such inspector of buildings, if any, otherwise of 
the board of health, of a town, the holder of a license or certificate violates 
any statute, ordinance, bjMaw, rule or regulation relative to plumbing, 
the said inspector or board of health of the town where such violation is 
committed shall give notice thereof to the examiners." 

On the other hand, it is clear from a reading of said chapter 142 that one 
of the chief means relied upon by the Legislature to prevent defective and 
dangerous plumbing is the right of suspension and revocation of licenses. 
As stated above, the Board of State Examiners of Plumbers has the right 
and power to revoke or suspend licenses for infractions by the holders of 
municipal enactments relative to plumbing. It is my opinion that the 
Board of State Examiners of Plumbers is under a duty to investigate 
infractions of law referred to it under the provisions of sections 6 and 7 of 
said chapter 142 and also to investigate alleged infractions of the plumbing 
laws by persons upon whose applications for licenses it is required to act. 
Service to be given in drawing municipal plumbing codes under section 8 
of said chapter 142 is also within the scope of the board's duties. 

2. You also ask my opinion as to the validitj^ of eleven proposed 
rules to which I shall have to refer separately. 

Prior to the enactment of St. 1947, c. 382, section 4 of said chapter 142 
read as follows: 

"The examiners may make such rules as they deem necessary for the 
proper performance of their duties, which shall take effect when approved 
by the department of public health. . . ." 

Said chapter 382 amended the above-quoted sentence of section 4 so as 
to read as follows: 

"The examiners may make such rules as they deem proper for the 
performance of their duties and rules governing the qualifications of 
applicants for examination, which shall take effect when approved by the 
general court and by the department of public health." 

It is clear, therefore, at the outset that the answer to your query relative 
to the vahdity of the eleven proposed rules "if approved by the Depart- 



18 P.D. 12. 

ment of Public Health" must be that they will not be valid, for rules such 
as you propose must now have the approval of the General Court, which 
has not been given. 

Moreover, 1 have the following observations to make relative to each 
of these proposed rules: 

(1) The fees for examinations are covered by section 5 of said G. L. 
c. 142. The provisions of existing statutes should not be incorporated 
into rules; such provisions speak for themselves and derive no force from 
the rule-making body. The nature of the examination is covered by the 
second sentence of section 4 of said chapter 142. The proposed rules 1 
and 2 are therefore unnecessary and improper. 

(2) I see no objection to proposed rules 3, 4 and 5, provided they are 
properly approved by the Department of Public Health and the General 
Court. 

(3) Proposed rule 6 appears to be a repetition of the substance of St. 
1946, c. 502, and is therefore improper in the form of a rule. 

(4) I see no objection to proposed rule 7. 

(5) Proposed rule 8 (pertaining to notice of examinations) appears to 
be covered by G. L. (Ter. Ed.) c. 142, § 4; further regulation of that 
subject as in proposed rule 8, inconsistent with the terms of said section 4, 
is improper. 

(6) Your proposed rule 9 reads as follows : 

"Three years of practical service in the installation and repairs of the 
various lines covered by the plumbing business will be required before 
applicants are eligible for examination; this service to be obtained working 
under and with a plumber." 

In my opinion, such a rule would be invalid. In the case of Common- 
wealth V. McCarthy, 225 Mass. 192, 196, our Supreme Judicial Court 
said: 

"It is a grave interference with personal liberty to prohibit one from 
doing work with his hands in a lawful and necessary occupation, which 
he is fitted to do, until he has been examined. The Legislature has never 
conferred power upon a board to prescribe a period of preparatory study 
before an examination could be taken even for professions requiring a 
high degree of skill without explicit words to that effect. . . . Since the 
statute neither makes any provision as to the time for preparation for an 
examination, nor undertakes to authorize any subordinate board to make 
a rule governing that subject, it is unnecessary to consider the delicate 
and serious constitutional question whether a statute or rule, to the effect 
that no one could be licensed as a master plumber until he had been 
licensed as a journeyman plumber for three years, would be valid." 

(7) Proposed rules 10 and 11, in my opinion, fall within the objections 
noted to proposed rule 9. 

Very truly yours. 

Clarence A. Barnes, Attorney General. 



P.D. 12. 19 

Taxation — Abatement of Meals Tax Excise. 

July 19, 1948. 
Hon. Henry F. Long, Commissioner of Corporations and Taxation. 

Dear Sir : — I am in receipt of a letter from you requesting my opinion 
with reference to certain matters which have arisen as a result of the 
enactment of St. 1948, c. 658. 

In effect, chapter 658 adds at the end of section 6 of G. L. (Ter. Ed.) 
c. 64B a provision requiring the Commissioner of Corporations and Taxa- 
tion to make, with respect to taxpayers making returns and payments 
as required by chapter 64B, an abatement "equal to the actual cost of 
tabulating and computing" the meals tax excise, but not exceeding one 
per cent of the excise so paid. 

Your first question concerns the fact that there is no limitation period 
contained in the new legislation; the statute simply states that the Com- 
missioner of Corporations and Taxation shall make the abatement. There 
is a provision that : 

". . . no taxpayer shall be entitled to receive any such abatement 
except in accordance with such classification and regulations as the com- 
missioner may prescribe, and unless such taxpayer shall, in addition to 
the return hereinabove referred to, have furnished to the commissioner 
any further information required by him respecting such return, to be 
set forth in such form and with such verification as he may require and 
approve." 

In view of the language just quoted, and taking into consideration 
G. L. (Ter. Ed.) c. 14, § 3 and G. L. (Ter. Ed.) c. 58, § 31, I am of the 
opinion that you may prescribe a reasonable limitation period within 
which the abatement in question must be sought. Sixty days would not, 
in my opinion, be unreasonably short. 

I am furthermore of the opinion that you may prescribe that applica- 
tions for this abatement are to be in writing and upon forms approved by 
you. As for your suggestion of prescribing that no such abatement shall 
be granted to any taxpayer not acting in compliance with chapter 64B, 
I believe that the form which you prescribe might well contain specific 
information enabling the taxpayer to comply with the statute in every 
respect. This form should also, I believe, clearly distinguish the abate- 
ment in question from that provided for by G. L. (Ter. Ed.) c. 58, § 27. 

You have next asked me whether the only item of cost to be allowed 
to a taxpayer seeking abatement must be "the actual cost of tabulating 
and computing such excise by the taxpayer. " That is, of course, the word 
for word language of the statute, but the taxpayer will undoubtedly have 
several items which he will wish to enter in his computation. For example, 
the actual cost of tabulating and computing the excise might well include 
sums expended by the taxpayer in keeping up the records of taxable 
charges which are required by section 4 of chapter 64B. I am, therefore, 
of the opinion that the answer you seek in this respect is more a practical 
matter than one on which I can give any legal opinion. 

You finally ask me whether abatements under the new provision of the 
statute are to be deducted from "all sums received under this chapter" 



20 P.D. 12. 

before you make distribution to the treasury of the Commonwealth as 
provided for in section 10 of chapter 64B. In my opinion, the abatements 
required by St. 1948, c. 658, should be deducted by you before you make 
disposition of receipts in accordance with section 10 of chapter 64B. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Recess Committee — Appointment by only one House of the Legislature. 

July 27, 1948. 
Hon. Fred A. Monciewicz, Comptroller. 

Dear Sir: — You have laid before me the following order voted by 
the House of Representatives on June 18, 1948: 

"Ordered, that a special committee, consisting of seven members of the 
House of Representatives to be designated by the Speaker thereof, is 
hereby established for the purpose of making an investigation and study 
of the subject matter of current Senate Document numbered 569, relative 
to the regulation of midget auto racing, with a view to suggesting such 
legislation as it may deem necessary or advisable in relation to said subject 
matter. Said committee may expend for services and expenses such 
sums not exceeding $1,500 as may be appropriated therefor." 

You have called my attention to item 0102-51 of the appropriation act, 
St. 1948, c. 669, which appropriates S2,500 "to provide for a study of 
midget auto racing as authorized by an order of the House of Representa- 
tives." 

With relation to the foregoing you have asked my opinion upon two 
questions of law which read as follows : 

"(1) Is the appropriation under item 0102-51 of St. 1948, c. 669, an 
appropriation for a 'committee of the General Court' authorized to act 
after the close of a session and to incur expenses chargeable thereto with 
particular reference to expenses incurred after the close of the last session 
and before the opening of the next session? 

"(2) Is the appropriation under item 0102-51 of St. 1948, c. 669, 
available to pay expenses of a committee duly appointed under the re- 
cited order at the last session but incurred by said committee subsequent 
to the opening of the next session of the legislature?" 

I answer both your questions in the negative. 

It is a generally accepted principle of law that one of the two houses of 
a legislature may not appoint a committee to serve during a recess of the 
legislature and that an appropriation made for the expenses of such a 
committee, though voted by both houses, does not validate the original 
appointment of the committee as a recess committee nor authorize the 
expenditure of such appropriation for the expenses of the committee 
during a recess of the legislature. Only a committee created by the joint 
authority of the two houses can have validity to act as a recess committee 
or to expend funds for its expenses and activities during a recess of the 
legislature. Ex parte Caldwell, 61 W. Va. 49, 10 LRANS 172 and cases 
there cited. 



P.D. 12. 21 

That such principle of law prevails in Massachusetts is made evident 
by the existence in the Joint Rules of the Senate and House of Repre- 
sentatives of Rule 28, which rule reads: 

"No standing or special committee of the Senate or House of Repre- 
sentatives and no joint committee shall sit during the recess of the General 
Court unless authorized so to do by concurrent votes of the two branches." 

Such a special committee of the House of Representatives as the one 
under consideration, established by order of one branch of the Legislature 
only, has no authority to incur expenses during the interval between the 
sittings of the General Court, nor is the said appropriation available for 
the payment of expenses so incurred. Such a committee obviously is 
not a "joint committee of the General Court" nor a "committee of the 
General Court" as the quoted words are used in G. L. (Ter. Ed.) c. 3, 
§§31 and 32, respectively, which sections are referred to in your letter. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Bristol County Tuberculosis Hospital — Power of Trustees to Sell Property. 

July 27, 1948. 
Bristol County Hospital Trustees. 

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

"We, the trustees of the Bristol County Tuberculosis Hospital, Attle- 
boro, Mass., respectfully request an opinion from your office as to the 
powers and duties of said trustees as provided in St. 1948, c. 522. Have 
we the power to sell property belonging to the Bristol County Tuberculosis 
Hospital? Have the County Commissioners any authority over the 
Bristol County Tuberculosis Hospital?" 

Authority to sell real property has not been vested specifically in the 
trustees by St. 1948, c. 522, nor was such authority formerly vested in 
the county commissioners, whose powers are transferred to the trustees 
by chapter 522. If the property which you have in mind is that of garden 
truck raised on the premises, the trustees would have authority to sell 
that for the purposes of the institution under the general powers of man- 
agement of the affairs of the hospital given them by chapter 522. 

Such authority as the county commissioners formerly exercised over 
the hospital appears to have been taken from them and vested in the 
trustees under St. 1948, c. 522. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Dog Racing — Suspension hy Affidavit — Competition with State or County 

Fair. 

July 27, 1948. 
State Racing Commission. 

Gentlemen: — I am in receipt of your recent letter relative to affidavits 
of the officers of the Rehoboth Agricultural Society of Bristol County, 
Inc. made under the provisions of G. L. (Ter. Ed.) c. 128A, § 3 (e), and 



22 P.D. 12. 

filed with you on April 13, 1948. You have also laid before me a com- 
munication which you have received, in which the writer states that such 
affidavits should be treated as null and void. 

The affidavits upon their faces do not appear to be invalid. 

Said section 3 (e) reads as follows : 

"Such dog racing meetings may be held only between the eighteenth 
day of April and the thirty-first day of October, both dates inclusive, in 
any year; provided, that the commission shall order the suspension of a 
dog racing meeting, except one held in connection with a state or county 
fair, during any week, between the fifteenth day of August and the thirtieth 
day of September, both dates inclusive, in which a state or county fair is 
to be conducted by an incorporated agricultural or horticultural society 
within fifty miles of such racing meeting if on or before the fifteenth day 
of April preceding such meeting an affidavit is filed with the commission 
by the officers of such society stating that in their belief such dog racing 
meeting will be in competition with said fair." 

The affidavits of which you have shown me copies state that the said 
Agricultural Society is conducting "the Rehoboth Fair" on August 21 
to 26, 1948, in Seekonk, Bristol County. 

The affidavits do not state specifically that the said society is conducting 
"a state or county fair" at such time and place. 

The Attorney General does not pass upon questions of fact. If, in view 
of the phraseology of said section 3 (e), you should find as a matter of 
fact that the fair in question was not of such a character that it could 
reasonably be said to constitute "a. state or county fair," you would be 
justified in refusing to order the suspension of a dog racing meeting during 
the period of said "fair." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Television Installation — Licensing of Persons so Engaged Unnecessary. 

July 30, 1948. 
State Examiners of Electricians. 

Gentlemen: — I have before me your recent letter asking my opinion 
as to whether the provisions of G. L. (Ter. Ed.) c. 141 require that a 
license be obtained by a person who engages in the business of installing 
in and upon buildings certain apparatus or wires, the use of which you 
have described, in connection with the use of television screens. 

General Laws (Ter. Ed.) c. 141, § 1, provides: 

"No person, firm or corporation shall enter into, engage in, or work at 
the business of installing wires, conduits, apparatus, fixtures or other 
appliances for carrying or using electricity for light, heat or power pur- 
poses, unless such person, firm or corporation shall have received a license 
and a certificate therefor, issued by the state examiners of electricians 
and in accordance with the provisions hereinafter set forth." 

A similar phrase, "electric light, heat or power current," is used in 
G. L. (Ter. Ed.) c. 166, §§ 30-32, to which you direct my attention. 



P.D. 12. 23 

I am of the opinion that the wires and apparatus used in connection 
with television, upon the facts relative to them which you have set forth 
in your letter, are not installed or used for carrying or using "electricity 
for light, heat or power purposes" as the quoted words are employed in 
said section 1, nor are such wires designed to carry "an electric light, 
heat or power current" as the last quoted words are used in said chapter 
166, sections 30-32. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Commissioners on Recodification — Salary. 

July 30, 1948. 
His Excellency Robert F. Bradford, Governor of the Commonwealth. 
Sir: — I am in receipt from Your Excellency of the following letter: 

"Chapter 94 of the Resolves of 1948 entitled 'Resolve providing for a 
Revision, Recodification, Consolidation and Arrangement of the General 
Laws of the Commonwealth' contains the following provision: 'Said 
commissioners shall each receive as compensation such sums as may 
hereafter be appropriated therefor, and may expend such sums for clerical 
assistance and otherwise as may hereafter be appropriated therefor.' 

"I am informed that the only appropriation made in reference thereto 
is contained in Item 0401-90 of the Supplemental Budget, Chapter 669 
of the Acts of 1948, which reads: 'For personal services and expenses for 
a revision, recodification, consolidation and arrangement of the General 
Laws of the commonwealth, as authorized by chapter ninety-four of the 
resolves of the current year, $50,000.00.' 

"I request your opinion upon the following questions: 

"1. Is the aforesaid appropriation to be interpreted as including the 
compensation to be paid to the commissioners? 

"2. If it is to be so interpreted, who has the authority to fix the amount 
of compensation to be paid each commissioner?" 

I am informed that under a schedule approved by the Joint Committee 
on Ways and Means, as shown by the files of said committee. Item 0401-90 
of the Supplemental Budget has been broken down so as to show that of 
the $50,000 appropriated thereby $36,000 has been allocated for salaries 
of the three commissioners to be appointed under said Resolve 94. 

This is an appropriation in gross for salaries of designated officers and 
is in effect an appropriation and indicates a legislative intent to establish 
a salary of one-third of said amount of $36,000 for each of the three com- 
missioners. 

In the light of the foregoing information, I answer your first question 
in the affirmative and your second question to the effect that the Legisla- 
ture has indicated an intent to fix the amount of compensation to be paid 
each commissioner at $12,000. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



24 • P.D. 12. 



Department of Public Works — Reimbursement of Boston Transit 

Department. 

Aug. 3, 1948. 
Hon. William H. Bueacker, Commissioner of Public Works. 

Dear Sir: — In a recent communication you requested my opinion 
upon the following questions: 

"1. Does a contract or obligation exist between the Department of 
Public Works and the Boston Transit Department within the meaning 
of G. L. c. 29, § 14, as amended, based on the mandatory provisions of 
St. 1946, c. 567, and Commissioner Cairnes' letter of July 31, 1946? 

"2. If the answer to Question 1 is affirmative, may the Commonwealth 
reimburse the City of Boston for payments made or to be made under the 
contract with Ole Singstad and Associates, dated July 2, 1946, as well as 
the other expenses incurred or to be incurred by the Boston Transit 
Department after July 1, 1948? 

"3. If the answer to Question 1 is negative, after what date is the 
appropriation no longer available?" 

I answer your first and second questions in the affirmative. 

As to your third question, it is my opinion that the appropriation is 
available until the duties to be performed by the Boston Transit Depart- 
ment are completed, or the appropriation is exhausted. 

These answers are based upon the construction of the letter from the 
Department of Public Works to the Boston Transit Department dated 
July 31, 1946, which is referred to hereinafter, in the light of the applicable 
statutes. 

Chapter 567 of the Acts of 1946 authorized and directed the Department 
of Public Works to provide for the preparation of plans for an additional 
vehicular tunnel between Boston proper and East Boston. 

Section 1 of the act contains the following sentence : 

"For the purpose of carrying out the provisions of this act, the depart- 
ment shall arrange to have the Boston transit department, hereinafter 
called the transit department, acting under the supervision of and in 
behalf of the department, perform the work hereinafter authorized." 

The Department of Public Works by a letter dated July 31, 1946, ad- 
dressed to the Boston Transit Department directed such department as 
follows : 

"Under the circumstances, therefore, the preparation of the plans as 
required under the provisions of this act may be started at once, and this 
communication may be considered as a formal request for your depart- 
ment to take such action." 

This letter established the liability of the Commonwealth to the Boston 
Transit Department. 

By St. 1946, c. 617, Item 2900-34, the Legislature appropriated the 
sum of $250,0,00, from which the Department of Public Works is to reim- 
burse the city of Boston for the cost of certain tunnel plans as authorized 
by St. 1946, c. 567. 



P.D. 12. 25 

General Laws (Ter. Ed.) c. 29, § 14, as most recently amended, reads 
as follows: 

"An appropriation for any purpose other than ordinary maintenance 
shall not be available for more than two years after the effective date of 
the appropriation, except that payments to fulfill contracts and other 
obligations entered into within the said two years may be made thereafter." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Public Works — Authority to lay Tracks on Airport Property. 

Aug. 9, 1948. 
Hon. Edward N. Gadsby, Chairman, Department of Public^ Utilities. 

Dear Sir: — In a recent communication you requested my opinion 
upon the following question: 

"Is the permission of the department necessary in order to authorize 
the construction of the proposed spur track across State-owned private 
ways, and also across the public way referred to in the attached corre- 
spondence?" 

I answer your question in the affirmative. 

The Department of Public Works is authorized by St. 1943, c. 528, to 
lay tracks upon the airport property and, therefore, needs no permission 
of the Department of Public Utihties so to do. 

The construction of a railroad by a person or a corporation for private 
use (and this includes the Commonwealth, see Commissioner of Banks vs. 
Highland Trust Co., 283 Mass. 71) is authorized by G. L. (Ter. Ed.) c. 160, 
§ 245, which provides that when the motor power is steam and said rail- 
road crosses a public way, the provisions of G. L. (Ter. Ed.) c. 159, § 58, 
shall apply, thus preserving the control of the Department of Public 
Utilities over railroad crossings of a public way at grade. V Op. Atty. 
Gen. 419. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



School Building Assistance Commission — Extent of Authority. 

Aug. 20, 1948. 
Mr. Wayne E. Clark, Chairman, School Building Assistance Commission. 

Dear Sir: — In a recent letter your commission has asked my opinion 
in effect as to whether it has authority to act under St. 1948, c. 645, with 
relation to all municipal public school buildings of whatever type. 

St. 1948, c. 645, read as a whole, indicates an intent upon the part of 
theJLegislature to clothe your commission with authority to take action 
in the ways described in said chapter with relation to "regional schools" 
and "consolidated schools," as the quoted words are defined in section 5 
of said chapter, and not with relation to other types of schools, nor as to 



26 P.D. 12. 

schoolhouses not intended to be used for "regional schools" or "con- 
solidated schools." 

When read in connection with all the other provisions of said chapter 
645, it is apparent that the words "school" and "schoolhouse," as em- 
ployed in the definition of "approved school project" in section 5 of said 
chapter 645, refer respectively to a regional or consolidated school and to 
a schoolhouse intended for the use of either of these two types of schools 
and to no others. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Drug Manufacturers and Suppliers — Licenses — St. 1948, c. 539. 

Aug. 24, 1948. 
Mrs. Irene K. Richards, Director of Registration. 

Dear Madam: — I am in receipt, through you, of the following letter 
from the Board of Registration in Pharmacy: 

"The Board of Registration in Pharmacy respectfully requests your 
opinion on the following points in question arising from interpretation of 
Chapter 539, Acts of 1948 — An Act regulating the Sale, Distribution and 
Delivery of Certain Drugs and Medicines at Wholesale, and the Manu- 
facture of Certain Drugs and Chemicals: 

"1. Is a large concern, like McKesson and Robbins, that may have 
four or five branches, required to have a license for each branch or for 
the main branch, only? 

"2. Also, is an out-of-state firm which ships suppHes into Massachu- 
setts required to have a license?" 

1. I answer your first question to the effect that one license is all that 
is required under the circumstances you set forth. 

2. I answer your second question to the effect that an "out-of-state 
firm" which merely ships supplies to others in Massachusetts and does 
not itself engage "within the commonwealth" in the "sale, distribution 
or deUvery, at wholesale, of drugs or medicines" is not required to be 
licensed. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Fees — Junk Collectors — Secondhand Dealers — Payment to Police Com- 
missioner's Clerk. 

Aug. 31, 1948. 

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

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

"Acts of 1948, c. 550, § 1, par. (38), provides as follows: 
'For issuing and recording licenses to dealers in junk, old metals, second- 
hand articles and junk collectors, two dollars, and such other fee as may be 
established by ordinance or by-law.' 



P.D. 12. 27 

"On January 1, 1948, fees for licenses mentioned were revised by City 
Ordinance of Boston as follows: 

Junk collector • . . . $10 00 

Junk shopkeeper 50 00 

Dealer in secondhand articles 20 00 

"The questions on which I respectfully request your opinion are as 
follows: 

"1. Does the wording of this statute require the changing of the fees 
in question to two dollars in each instance? 

"2. Should the underscored words, 'and such other fee as may be estab- 
lished by ordinance or by-law ' be interpreted to mean ' or such other fee as 
may be established by ordinance or by-law?'" 

General Laws (Ter. Ed.) c. 262, § 34, as most recently amended by 
St. 1948, c. 550, § 1 (38), establishes a fee, payable to town clerks, for 
issuing and recording the types of licenses referred to in your letter of 
"two dollars and such other fee as may be established by ordinance or 
by-law." 

Such types of licenses in Boston are not issued and recorded by a town 
clerk but by the police commissioner's clerk (G. L. [Ter. Ed.] c. 140, 
§ 202, as amended by St. 1948, c. 550, § 25) after the police commissioner 
has signed them. Accordingly, the two-dollar fee provided by said section 
34 for the town clerk is, in Boston, payable to the commissioner's clerk, 
for under the provisions of G. L. (Ter. Ed.) c. 262, § 43, "fees of public 
officers for any official duty or service shall ... be at the rate prescribed 
in this chapter for like services." 

Under the provisions of G. L. (Ter. Ed.) c. 140, § 54, cities have au- 
thority to provide by ordinance, under the rule-making power given them 
in said section 54, for reasonable fees for licenses of the types referred to. 
This you advise me the city of Boston has done. That such provisions 
may properly be made would appear to be recognized by the Legislature 
in the use of the phrase employed in setting up the two-dollar fee, namely: 
"and such other fee as may be established by law." 

I am of the opinion that there is nothing in the context of the statute 
which would require the word "and" in the above-quoted phrase to be 
construed as meaning "or" and that, therefore, the effect of paragraph 
(38) of section 1 of said chapter 550, quoted in your letter, is to provide 
for total fees to be paid by the licensees to whom you have referred : 

Junk collector $12 00 

Junk shopkeeper 52 00 

Dealer in secondhand articles 22 00 

The foregoing opinion furnishes the answers to both your questions. 
Very truly yours, 

Clarence A. Barxes, Attorney General. 



Bridge Repairs — Municipal Loans — Public Buildings. 

Sept. 14, 1948. 
Emergency Finance Board. 

Gentlemen: — In reply to your letter of recent date, let me say that 
St. 1948, c. 275, §§1 and 2, do not contemplate the making of municipal 
loans with the approval of your board for repairs to bridges. It cannot 



28 P.D. 12. 

reasonably be said that the words ''pubhc buildings," as employed in 
the general context of said sections, were intended to include bridges. 
What particular public works fall within the meaning of the quoted words 
depends upon factual characteristics, which must be considered in each 
instance. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Boston Police Departme7it — Sick Leave — Vacations — Civil Service. 

Sept. 14, 1948. 
Hon. Thomas F. Sullivan, Police Commissioner of the City of Boston. 

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

"Do the provisions of St. 1947, c. 426, apply to members of the Force 
of the Boston Police Department in relation to 'vacations, sick leave and 
accrued sick leave' in view of the provisions of St. 1947, c. 146?" 

I answer your question in the negative. 

St. 1947, c. 426, which amended the civil service law by inserting a 
new paragraph 2 in section 15D in G. L. (Ter. Ed.) c. 31, is entitled ''An 
Act providing for the computation of seniority of officers and employees 
in the official or labor service in certain cases." Said section 151) deals 
with the basis for seniority in the application of the civil service law. The 
provisions of said section 15D are by the terms thereof expressly limited 
in their application to the civil service law through the phrase employed 
at the beginning of the section: "For the purposes of this chapter, seniority 
. , . shall mean . . . ranking based on length of service, computed as 
provided in this section:" 

St. 1947, c. 146, which is entitled "An Act relative to annual vacations 
and sick leave allowances for police officers in the City of Boston," is no 
part of the civil service law and the provisions of said G. L. (Ter. Ed.) 
c. 31, § 15D, as amended by St. 1947, c. 426, have no application to it. 
The word "service" as used in said St. 1947, c. 146, with regard to the 
Boston police department, as read in the context of the whole chapter, 
means service in said police department, and length of service is not to 
be computed in the manner in which it is computed with relation to 
seniority for the purposes of the civil service law under said section 15D. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Public Works — Authority to Take Land for Logan Inter- 
national Airport. 

Sept. 21, 1948. 

Hon. Philip H. Theopold, Commissioner of Airport Management. 

Dear Sir: — In a recent letter you have asked whether the Depart- 
ment of Public Works is an agency authorized to effect a proposed taking 
of land adjacent to Logan Airport. This land is to be used for the con- 



P.D. 12. 29 

struction of a spur track serving the airport, and the project accordingly 
falls within the limits of the general term, "construction at the airport." 
Inasmuch as the Department of Public Works has been specifically 
authorized and directed by St. 1948, c. 637, to "continue to exercise its 
authority over the construction of the Logan Airport" until January 3, 
1949, and in view of the fact that the statutes originally granting such 
authority to the Department of Public Works include an enactment 
enabling the department to effect takings of land by eminent domain, it 
is my opinion that the Department of Public Works is authorized to 
effect the proposed taking. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Department of Public Works — Restriction by Local By-laws. 

Sept. 29, 1948. 
Hon. William H. Buracker, Commissioner of Public Works. 

Dear Sir : — In reply to your letter of recent date with relation to 
your proposal to erect a building for the storage of road machinery on 
land in the towTi of Westwood which by a municipal zoning ordinance is 
set up as a single residence area, let me say that it is a general principle of 
law that the Commonwealth, in the exercise of its sovereign power, is 
not restricted by municipal by-laws and ordinances. The exercise of 
such power in relation to the Commonwealth's O'^n lands and buildings 
has been said not to be limited or curtailed by municipal by-laws, ordi- 
nances or rules concerning building regulations, licenses or permits and 
like restrictive requirements. Teasdale v. Newell & Snowling Construc- 
tion Co., 192 Mass. 440. I Op. Atty. Gen. 290, 296; II Op. Atty. Gen. 56, 
399; IV Op. Atty. Gen. 537, 539; Attorney General's Report, 1932, p. 86; 
Attorney General's Report, 1935, p. 39; Attorney General's Report, 
1933, p. 47. The same principle applies to a municipal zoning by-law. 

Accordingly, I am of the opinion that the existence of the zoning by-law 
to which you refer does not preclude the erection, by those having the 
authority, of a building such as you have described upon the Common- 
wealth's own land, irrespective of an existing zoning by-law w^hich does 
not by its own. terms exclude the Commonwealth's buildings from its 
sweep. 

Whether the erection of a storage building by the Commonwealth in an 
area established by a town for single residences is so necessary as to justify 
the exercise of the Commonwealth's right in this respect is a matter pe- 
culiarly for your determination. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



30 P.D. 12. 

Common Carrier — Defined — Not One who Carries Waste Material from a 

Cesspool. 

Oct. 6, 1948. 

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

Dear Sir: — In a recent letter with relation to an application for a 
certiiScate of public convenience and necessity, required by those engaged 
in the business of a common carrier by motor vehicle upon any way under 
G. L. (Ter. Ed.) c. 159B, § 3, made by one engaged in the business of 
cleaning cesspools in which transportation of the waste material is a 
necessary part, you have asked my opinion upon the two following ques- 
tions: 

"1. Where no specific charge is made for transportation, although 
transportation is a necessary and integral part of the contract, is the 
transporting contractor a carrier under chapter 159B? 

"2. Where the principal purpose of the contract is to perform a specific 
service, is the contracting party a carrier under chapter 159B if it is neces- 
sary for him to transport materials over the roads although no specific 
charge is made for the transportation?" 

I confine my answer to your letter to the particular instance mentioned 
in your letter, namely, that of transportation by motor vehicle of waste 
matter by one who engages in the business of cleaning cesspools for others. 

The words "common carrier by motor vehicle" are defined in section 2 
of said chapter 159B as follows: 

"'Common carrier by motor vehicle,' any person who . . . transports 
property, or any class ... of property, for the general public by motor 
vehicle, for compensation, upon ways, over regular or irregular routes. ..." 

It is implicit in the above statutory definition that the property which 
the specified carrier transports is the property of some actual person other 
than himself. In the ordinary case of the transportation of waste material 
from a cesspool, the owner either abandons title to the same altogether 
upon its being dug up or transfers it to the carrier. 

This being so, the transporting carrier in such a case does not fall within 
the said statutory definition of "common carrier by motor vehicle." 

I refrain from attempting to answer the particular questions in your 
letter by reason of their general and hypothetical character other than to 
say that where the facts with relation to any particular transaction are 
such, as in the instance of the cesspool, that it can be said as a matter of 
law that the carrier is transporting either abandoned property or property 
the title to which has become vested in him, the carrier does not fall 
within the said statutory definition of "common carrier by motor vehicle." 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 31 

Justice of the Peace — Fees — Process. 

Oct. 6, 1948. 
Mr. Francis X. Lang, Director of Accounts. 

Dear Sir: — With relation to the fees of a justice of the peace under 
G. L. (Ter. Ed.) c. 262, § 1, as amended by St. 1948, c. 295, you have 
asked me certain questions. 

G. L. (Ter. Ed.) c. 262, § 1, before amendment, in its material parts 
read: 

"The fees of justices of the peace shall be . . . 

"For issuing a summons, process or warrant under section thirty-six 
of chapter two hundred and eighteen, two dollars." 

Said section 36 of chapter 218 reads in its material part: 

"The governor . . . may designate ... a justice of the peace [in 
certain towns] ... to exercise the powers given to certain justices of 
the peace by the preceding section. ..." 

The said preceding section, section 35, reads : 

"A justice ... or a justice of the peace who is also a clerk of ... a 
court, may . . . receive complaints and issue warrants and summonses. 

In 1948 by chapter 295 the above-quoted portion of said chapter 262, 
section 1, was amended so as to read: 

"For issuing a summons, process or warrant under section thirty-six of 
chapter two hundred and eighteen, two dollars, except that when more 
than one summons, process or warrant shall be simultaneously issued 
against a single defendant, no fee shall be paid except for the first such 
summons, process or warrant." 

A complaint is not "issued" but is "received" by a justice. (See said 
section 35; Commonwealth v. Taher, 155 Mass. 5.) 

Nor is a complaint a means of acquiring jurisdiction or compelling the 
appearance of a defendant. That is the function of a summons or a 
warrant. 

The term "process" is often employed in statutes as denoting an instru- 
ment which is used to compel a defendant to appear in court. Less fre- 
quently the word "process" is used as meaning any part of a judicial 
proceeding. 

The words "summons" and "warrant" denote instruments which are 
used to compel defendants to appear in court. The use of the word "proc- 
ess" in the same phrase with "summons" and "warrant" in said section 1 
as amended indicates, by a familiar principle of statutory construction, 
that as so employed the word "process" has the same connotation as 
"summons" and "warrant" and does not, as employed in said section 1, 
mean all the proceedings in a judicial matter. 

1. Your first question reads: 

"Does the phrase 'summons, process or warrant' include a 'complaint' 
within the sweep of its w^ords?" 

In view of the foregoing considerations I answer your first question in 
the negative. 



32 P.D. 12. 

2. Your second question reads: 

"What is embraced in the term 'process' as so used?" 

Whatever other instruments besides summonses and warrants there 
may be which a justice of the peace might issue to compel the appearance 
of a defendant, the word "process" as used in said section 1 as amended 
does not, in my opinion, include a complaint for the reasons which I have 
aheady stated. 

3. You have asked me with relation to a specific set of facts what fee 
a justice should receive under the provisions of said chapter 262, section 1, 
as amended by St. 1948, c. 295. This set of facts is set forth in your letter 
as follows: 

"More particularly am I concerned with determining the amount 
which a justice of the peace should receive in a case where a wife swears 
out a complaint against her husband for non-support and for assault, 
and papers are made out by the justice of the peace for the complaint, 
a summons for non-support, and a summons for assault. Up to August 5, 
1948 the justice received fees amounting to six dollars. Applying the 
provisions of St. 1948, c. 295, what should he receive now?" 

In view of the considerations applicable to the construction of the 
statute under consideration, I advise you that under the facts as you have 
stated them the justice should receive a fee of only two dollars. 

No provision of the statute authorizes a fee for the receipt of the com- 
plaint, which as I have said is not the issuing of a "process" as the quoted 
word is used in the applicable statute, although a custom of charging 
such a fee may have grown up in certain places. Only one fee of two 
dollars is permitted under the amending statute for the issuance of the 
two summonses, and that is the total amount which may be taken as a 
fee for the various acts described in your statement of facts. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Pawnbrokers — License Fees. 

Oct. 7, 1948. 

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

Dear Sir: — In a recent letter you have asked my opinion with rela- 
tion to St. 1948, c. 550, § 1, par. (39), concerning fees for issuing and 
recording licenses to pawnbrokers. 

"Should the provision of section 1, paragraph (39), of St. 1948, c. 550, 
be interpreted as changing the present fees relating to pawnbrokers to 
twenty-five dollars per annum?" 

I answer your question in the negative. 

St. 1948, c. 550, § 1, which amends G. L. (Ter. Ed.) c. 262, § 34, does 
not purport to change the license fees properly established by law for 
pawnbrokers' licenses. It merely sets forth the fees payable to city and 
town clerks for "issuing and recording licenses to pawnbrokers," which it 
establishes at twenty-five dollars. Such licenses in Boston are not issued 
and recorded by a city clerk but by the police commissioner's clerk (G. L. 



P.D. 12. 33 

[Ter. Ed.] c. 140, § 202, as amended by St. 1948, c. 550, § 25) after the 
police commissioner has signed them. Accordingly, the said fee of twenty- 
five dollars provided by said paragraph (39) for the city clerk is in Boston 
payable to the commissioner's clerk under the provisions of G. L. (Ter. 
Ed.) c. 262, § 43. The establishment of this fee of twenty-five dollars for 
"issuing and recording" the licenses in question does not abrogate or 
change the amount of the fee for a pawnbroker's license as such, set up 
under the authority of other provisions of law. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



State Airport Management Board — Massachusetts Aeronautics Commis- 
sion — Division of Duties. 

Oct. 8, 1948. 
Massachusetts Aeronautics Commission. 

Gentlemen: — In a recent letter you have called into question certain 
aspects of St. 1948, c. 637, aspects which apparently indicate to you 
possible conflicts both in the administration of aeronautics generally as 
well as in the development and operation of State-owned airports within 
the Commonwealth. 

To answer your varied and numerous queries, I have found it necessary 
to examine all major legislation concerning aeronautics from 1935 to date. 
I feel obliged to state at the outset, and as a means of establishing the 
background for this opinion, that St. 1948, c. 637 is today the most im- 
portant and — in many phases — the controlling legislative enactment 
among all those raised for consideration by your letter. 

This is so for two reasons: in the first place, chapter 637 deals with the 
subject of aeronautics as a whole in sweeping, although not entirely com- 
prehensive fashion. It is a well-recognized principle of our jurisprudence 
that when the General Court deals in a comprehensive way with an entire 
subject previous conflicting provisions of law are not designed to be con- 
tinued. Doyle V. Kirby, 184 Mass. 409. Godfrey v. Bldg. Com'r of Boston, 
263 Mass. 589. Walsh v. Cotn'rs of Civil Service, 300 Mass. 244. 

In the second place, section 11 of chapter 637 is specifically designed to 
effectuate and fortify this legal principle. That section reads as follows: 

"Sections 39D, 51 A, 51B and 51C of said chapter 90 [General Laws] 
and any special law or part thereof inconsistent with the provisions of 
this act are hereby repealed." 

Some further elaboration upon the unmistakable legislative intent mani- 
fested by the General Court in enacting chapter 637 will, I think, prove 
helpful. Unquestionably, a clear intention has been demonstrated to 
establish a definite division of duties between the Massachusetts Aero- 
nautics Commission on the one hand and the new State Airport Manage- 
ment Board on the other. It is my opinion that, in general, this division 
was intended to and does separate the operation and administration of 
State-owned airports from the development and regulation of all other 
aeronautical activities within the Commonwealth. The first-named class 
of responsibilities now comprises the sphere of duty and activity within 
which the new State Airport Management Board will function. As a 



34 P.D. 12. 

result, the Massachusetts Aeronautics Commission has in effect been 
directed by the General Court to continue the activities already prescribed 
for it by previous legislation, but with the new proviso of being now re- 
stricted to aeronautical activities other than those connected with State- 
owned airports. This view is substantiated by a consideration of House 
No. 2308 which the General Court repudiated when enacting chapter 637 
during the 1948 session. 

Proceeding to the specific questions you have asked, your first is as 
follows : 

"To what extent does the law now impose on the Massachusetts Aero- 
nautics Commission responsibility for general supervision and control 
over any aspects of the Logan and Bedford airports?" 

G. L. (Ter. Ed.) c. 90, § 39 was originally inserted by St. 1939, c. 393, 
and provided for a substantial measure of supervision and control over 
State-owned airports on the part of the Massachusetts Aeronautics Com- 
mission. However, that authority was greatly diminished and made merely 
advisory by the enactment of St. 1941, c. 695, which transferred responsi- 
bilit}^ for the operation and maintenance of State-owned airports to the 
Department of Public Works. The department's authority was increased 
and confirmed by St. 1943, c. 528, and by St. 1945, c. 383. Then the 
Massachusetts Aeronautics Commission re-entered the State-owned airport 
field with the passage of St. 1946, c. 442; this legislation placed Bedford 
Airport under control of the commission. 

Chapters 582 and 583 of the Acts of 1946 (particularly the former) are 
important not only for marking the re-establishment of the Massachusetts 
Aeronautics Comjnission but also as an illustration of the duties which 
the General Court at that time had in mind for the commission. In my 
opinion, the new section 40 of G. L. (Ter. Ed.) c. 90, inserted by said 
chapter 582, is of particular importance in considering this legislative 
history; it reveals an unmistakable trend towards establishing the com- 
mission as a State-wide regulatory rather than an airport management 
body. Logan Airport had already been removed from the commission's 
control, and although jurisdiction over Bedford Airport was given to the 
commission in 1946, the trend has continued and control over that airport 
has also been removed by St. 1948, c. 637. 

The first paragraph of G. L. (Ter. Ed.) c. 90, § 39, above referred to, 
was amended in 1941 (by St. 1941, c. 695), again in 1946 (by St. 1946, 
c. 583), and has now been further amended by St. 1948, c. 637, § 10. 
Each amendment has seen this paragraph dwindle in importance until it 
is now readily apparent that the Massachusetts Aeronautics Commission 
must look to the second and third paragraphs of said section 39 and to 
G. L. (Ter. Ed.) c. 90, § 40, for the primary definition of its duties rather 
than to the first paragraph of G. L. (Ter. Ed.) c. 90, § 39. As most re- 
cently amended, said first paragraph now reads as follows: 

"The commission shall have general supervision and control over 
aeronautics." 

As you point out, "aeronautics" is defined in G. L. (Ter. Ed.) c. 90, 
§ 35, as including, among other things, "the design, establishment, con- 
struction, extension, operation, improvement, repair or maintenance of 
airports, restricted landing areas or other air navigation facilities." But 
it is to be noted that said section 35 also contains the following language : 



P.D. 12. 35 

"The following words and phrases . . . shall have the following mean- 
ings, unless a different meaning is clearly apparent from the language or 
context, or unless such construction is inconsistent with the manifest 
intention of the general court." 

I furthermore call to your attention St. 1948, c. 637, § 4, which section 
transfers to the new State Airport Management Board all the rights, 
powers, duties and obligations of the Massachusetts Aeronautics Com- 
mission pertaining to the acquisition, construction, maintenance and 
operation of Bedford Airport. 

In the light of the legislative history above set forth, and taking into 
consideration the background against which the latest enactment of the 
General Court must be viewed, I am of the opinion that the Massachu- 
setts Aeronautics Commission, after the effective date of St. 1948, c. 637, 
will no longer be responsible for general supervision or control of Bedford 
Airport but will be responsible for certain matters of co-operation as 
below described. 

Inasmuch as the responsibilities of the commission with respect to 
Logan Airport have been largely of an advisory nature since 1941, there 
is even less question as far as that airfield is concerned. Moreover, certain 
of those responsibilities (established by St. 1941, c. 695) have already by 
implication been lessened by St. 1946, c. 583, and it should also be re- 
membered that the duties and obligations of the Department of Public 
Works with respect to Logan Airport have been transferred to the new 
State Airport Management Board by St. 1948, c. 637. I am accordingly 
of the opinion that the Massachusetts Aeronautics Commission, after 
the effective date of St. 1948, c. 637, will no longer be responsible for any 
matters of control at Logan Airport, and will be responsible for matters of 
supervision and co-operation only as hereinafter described. 

The Massachusetts Aeronautics Commission is no longer charged with 
responsibility for operation or control of either of the tw^o presently existing 
State-owned airports in the Commonwealth. Those are matters speci- 
fically allocated to the responsibility of the new Commissioner of Airport 
Management. See G. L. (Ter. Ed.) c. 6, § 59B, inserted by St. 1948, 
c. 637, § 2; and G. L. (Ter. Ed.) c. 90, § 50C, inserted by St. 1948, c. 637, 
§ 3. But the Massachusetts Aeronautics Commission is still charged with 
responsibility for fostering air commerce and enforcing regulations for 
air safety within the Commonwealth. The question arises: where does 
general aeronautical regulation end and airport operation begin? That 
dividing line is, in my opinion, the line of division between the new State 
Airport Management Board and the Massachusetts Aeronautics Com- 
mission. 

As a practical matter, it would be impossible to supervise, control and 
operate a modern airport without having regulatory jurisdiction over the 
flight activities of aircraft making use of the airfield and its navigational 
facilities. I am therefore of the opinion that the phrase ''operation and 
control of Bedford and Logan Airports" indicates not only control of 
business management, installations and equipment on the ground at the 
two fields, but also control of the airspace above the fields utilized by 
actual or proposed traffic patterns prescribed for aircraft making use of 
either airport. 

Taking this view of the extent of the duties of the new State Airport 
Management Board, it may readily be seen that it is incumbent upon the 
Massachusetts Aeronautics Commission to co-operate with the new board 



36 P.D. 12. 

to the end that safety and other flight regulations, which inevitably will 
comprise part of the operation and control of the State-owned airports, 
become completely co-ordinated with the aeronautical and safety regula- 
tions prescribed elsewhere in the Commonwealth by the Massachusetts 
Aeronautics Commission. This is, of course, a responsibility shared 
equally by the new State Airport Management Board. 

In addition to this duty of co-operation involving both Logan and 
Bedford Airports, the Massachusetts Aeronautics Commission has a 
somewhat similar responsibility with respect to zoning regulations at 
Logan. This will be further developed in answer to your fifth question. 

I have elaborated fully upon the background and legislative history of 
the present aeronautical situation, legally speaking, within the Common- 
wealth, and have gone perhaps further than your letter required in answer- 
ing 3^our first question, but I have done so because I believe it to be most 
important that all phases of this subject be made as clear as possible to 
those who must deal with it, because there is little precedent to aid those 
confronted with problems such as you have raised, and because the answers 
to your remaining questions will now, I think, be more readily apparent 
and more easily understood. I must emphasize, however, that every 
answer given in this opinion is to be viewed in the light of all that I have 
thus far written. What has gone before colors the entire picture. 

Your second question reads as follows : 

"Is there any obhgation on the part of the Massachusetts Aeronautics 
Commission to regulate flying activities at, on or about Logan, Bedford, 
or any other State-owned airports?" 

It is my opinion that, except for the duty of co-operation above de- 
scribed, the Massachusetts Aeronautics Commission, after the effective 
date of St. 1948, c. 637, will have no obligation to regulate flying activities 
at either Bedford or Logan Airport. There is at this time no other State- 
owned airport in existence. 

You have called to my attention the language of G. L. (Ter. Ed.) c. 90, 
§ 39, third paragraph, which gives the Massachusetts Aeronautics Com- 
mission permission to make certain rules and regulations. But the manda- 
tory duties prescribed for the new Commissioner of Airport Management 
by G. L. (Ter. Ed.) c. 90, § 50D, as inserted by St. 1948, c. 637, § 3, must, 
in my opinion, be regarded as excluding the Massachusetts Aeronautics 
Commission from the making of rules and regulations concerning the 
State-owned airports; such rules and regulations with respect to flight 
activities in the direct vicinity of Logan Airport and of Bedford Airport 
have become the exclusive province of the Commissioner of Airport Man- 
agement, subject only to the approval of the State Airport Management 
Board. The various provisions of G. L. (Ter. Ed.) c. 90 which have to 
do with the regulatory powers of the Massachusetts Aeronautics Com- 
mission must now be regarded as applicable only to aeronautical activities 
other than those connected with State-owned airports. 

Your third question asks w^hether it is necessary that plans and specifi- 
cations of Logan and Bedford Airports be approved by the Massachusetts 
Aeronautics Commission, and whether either airport must have a certifi- 
cate of approval as prescribed in G. L. (Ter. Ed.) c. 90, § 39B, second 
paragraph. 

With respect to approval of plans and specifications at Bedford Airport, 
the powers and authority of the Massachusetts Aeronautics Commission 



P.D. 12. 37 

as granted by St. 1946, c. 442, have, in my opinion, been transferred wholly 
and entirely to the new State Airport Management Board by St. 1948, 
c. 637, § 4. 

With respect to approval of plans and specifications at Logan Airport, 
the powers of the Massachusetts Aeronautics Commission were in part 
advisory (St. 1941, c. 695, ?j 7) and in part of a nature calling for approval 
or non-approval of contracts, leases, schedules and charges (St. 1943, 
c. 528, § 1; St. 1947, c. 676, § 2). Section 3 of chapter 637 of the Acts of 
1948 inserts new sections 50A through 50L in G. L. (Ter. Ed.) c. 90; 
these new sections largely concern the duties of the new State Airport 
Management Board and the new Commissioner of Airport Management. 
It must be noted that the specific approval of the Massachusetts Aero- 
nautics Commission is required with respect to only one such duty (loca- 
tion of a new State-o^\^led airport, new section 50G). The Massachusetts 
Aeronautics Commission is to be consulted if and when a new State-owned 
airport is to be established, but there is no mention of approval by the 
commission with respect to the enlargement, extension or other improve- 
ment of an existing State-owned airport. 

It is also significant that House No. 2429, passed at the 1948 session to 
make certain amendments to previously enacted St. 1948, c. 637, although 
it calls for approval by the Governor and Council in certain instances, 
omits any reference to any approval by the Massachusetts Aeronautics 
Commission. 

I am accordingly of the opinion that after the effective date of St. 1948, 
c. 637, there will no longer be any obligation incumbent upon the Massa- 
chusetts Aeronautics Commission to approve plans or specifications of 
Bedford Airport or to approve plans or specifications of Logan Airport 
after January 3, 1949, with the single exception (at Logan) of zoning 
matters, which are dealt with later in this opinion. 

In a secondary letter you have asked whether the responsibility of the 
Massachusetts Aeronautics Commission with respect to reviewing Logan 
construction plans will expire on the effective date of St. 1948, c. 637, or 
will continue until January 3, 1949, the date, under the new statute, when 
the Department of Public Works terminates all activities concerning 
construction at Logan Airport. 

Section 4 of said chapter 637 contains a provision that "the department 
of public works shall continue to exercise its authority over the construc- 
tion of the Logan Airport in accordance with the provisions of chapter 
six hundred and seventy-six of the acts of nineteen hundred and forty- 
seven until the third day of January, nineteen hundred and forty-nine, 
but not thereafter." 

Section 1 of said chapter 676 cites all the previous statutes conferring 
power and authorit}^ upon the Department of Public Works concerning 
Logan Airport, i.e.:"' St. 1941, c. 695; St. 1943, c. 528; St. 1945, c. 383; 
St. 1946, c. 595. Inasmuch as St. 1943, c. 528, as your letter remarks, 
confirms the approving powers of the Massachusetts Aeronautics Com- 
mission here under discussion and originally estabhshed by St. 1941, c. 695, 
it is my opinion that procedures concerning approval of Logan plans will 
remain the same as they have been in the recent past until January 3, 
1949. 

As far as certificates of approval for either State-owned airport are 
concerned, I call to your attention the fact that the provision requiring 
such certificates (G. L. [Ter. Ed.] c. 90, § 39B, second paragraph) was 



38 P.D. 12. 

originally inserted by St. 1946, c. 607, a measure entitled ''An Act Relative 
to a State Airport Plan." The specific language dealing with this subject 
reads as follows : 

^'Section SOB. Each city or town before acquiring any property within 
the commonwealth for the purpose of establishing, constructing, enlarging 
or improving thereon on airport or restricted landing area, shall apply to 
the commission for a certificate of approval of the site . . . 

"All airports, restricted landing areas, and air navigation facilities shall 
conform to plans and specifications approved by the commission and 
shall not be in conflict with the state airport plan and no such airport, 
restricted landing area or air navigation facility shall be maintained or 
operated unless a certificate of approval of the maintenance and operation 
thereof is granted and is continued in force by the commission; ..." 

It is quite apparent that the certificates of approval mentioned in this 
statute refer to the various airports throughout the Commonwealth em- 
braced within the "State Airport Plan." Logan Airport had been speci- 
fically removed from this group, in my opinion, by St. 1941, c. 695, and 
St. 1946, c. 583, and the special characteristics and administration of 
Logan Airport were re-emphasized by St. 1947, c. 676; these matters are 
further re-emphasized and confirmed by the entire tenor of St. 1948, 
c. 637, and particularly by section 2 of said chapter in so far as it inserts 
a new section 59C in G. L. (Ter. Ed.) c. 6, as well as by section 3 of said 
chapter 637 in so far as it inserts new sections 50B and 50C in G. L. (Ter. 
Ed.) c. 90. Similar considerations apply to Bedford Airport in view of 
the transfer of authority from the Massachusetts Aeronautics Commis- 
sion to the new State Airport Management Board effected by St. 1948, 
c. 637, § 4. 

It is therefore my opinion that it will not be necessary for either Bed- 
ford or Logan Airport to obtain from the Massachusetts Aeronautics 
Commission a certificate of approval of maintenance and operation. 

Your fourth question is concerned with the enforcement powers and 
duties previously given to the Massachusetts Aeronautics Commission by 
G. L. (Ter. Ed.) c. 90, § 40, third paragraph, as inserted by St. 1946, 
c. 582. Inasmuch as St. 1948, c. 637, has inserted numerous new provi- 
sions within chapter 90 (§§ 50A through SOL), you ask whether the Massa- 
chusetts Aeronautics Commission has the responsibility of enforcing these 
new provisions. Since these new provisions apply almost wholly and 
entirely to the duties of the State Airport Management Board and the 
Commissioner of Airport Management, and inasmuch as the new legisla- 
tion has created a definite division of duties between the new board and 
the Massachusetts Aeronautics Commission, it is readily apparent that 
the Massachusetts Aeronautics Commission has no responsibility for 
enforcing the provisions of G. L. (Ter. Ed.) c. 90, §§ 50A through 50L, as 
inserted by St. 1948, c. 637, § 3. 

Your fifth question concerns zoning regulations at Logan Airport. 
Under St. 1939, c. 412, the zoning (height of structure) regulations at 
Boston Airport were made the responsibility of the Commissioner of 
Public Works. Section 8 of chapter 637 of the Acts of 1948 transfers all 
rights, powers, duties and obligations in these respects to the Massachu- 
setts Aeronautics Commission. As you point out, the Boston Airport of 
1939 now comprises a small portion of the Logan Airport of 1948 and it is 
accordingly to be expected that, in the enforcement of zoning regulations, 



P.D. 12. 39 

the newly prescribed duties of the Massachusetts Aeronautics Commission 
must harmonize with the operational, construction and maintenance 
duties imposed by St. 1948, c. 637, solely and exclusively upon the new 
State Airport Management Board and the new Commissioner of Airport 
Management. 

It therefore becomes incumbent upon all concerned to co-operate in the 
promotion of reasonable and satisfactory procedures. As to an exact 
division of responsibilities in this sphere, it is the duty of the new board 
and the new commissioner to operate, control, develop and improve 
Logan Airport. And although the Massachusetts Aeronautics Commission 
has been relieved of any responsibility concerning the plans and improve- 
ments designed for Logan Airport, the specific language of St. 1948, 
c. 637, § 8, makes it, nevertheless, in my opinion, the duty of both the 
State Airport Management Board and the Massachusetts Aeronautics 
Commission to consult together with respect to any buildings or structures 
involving the zoning regulations established by St. 1939, c. 412. 

As previously pointed out, it is primarily in this sphere of zoning regula- 
tions at Logan Airport and in the even more important area of co-ordi- 
nating flight and safety regulations that the new State Airport Manage- 
ment Board and the Massachusetts Aeronautics Commission are legally 
required by existing legislation to co-operate and work together. In other 
matters raised for discussion in your letter, the line of division between 
the two administrative bodies is clear and distinct. 

Your sixth question, divided into two parts, has to do with financial 
matters. Here again, let me state initially my opinion that the dividing 
line gives responsibility to the new State Airport Management Board with 
respect to funds connected with State-owned airports, while leaving with 
the Massachusetts Aeronautics Commission responsibility with respect to 
funds concerning other aeronautical activities within the Commonwealth. 

Your letter quotes G. L. (Ter. Ed.) c. 90, § 39C, as inserted by St. 1946, 
c. 607. Pertinent language therefrom reads as follows: 

''There is hereby created a fund to be loiown as the 'State Aeronautics 
Fund.' All moneys received on behalf of the commonwealth under seo- 
tions thirty-five to fifty-two, inclusive, and from the operation, lease or 
sale of airports or other aeronautical facilities owned by the common- 
wealth, other than moneys so received on account of the General Edward 
Lawrence Logan Airport, and all moneys appropriated for the purposes of 
such fund, shall be paid into the state treasury and credited to said fund. 
After appropriation, the moneys in said fund, and moneys received from 
the federal government for airport purposes, may be expended by the 
commission or by the state treasurer at the request of the commission 
under section thirty-nine F, for any of the purposes authorized by said 
sections." 

With respect to said section 39C, you ask whether income derived from 
the operation of Bedford Airport will still, after the effective date of 
St. 1948, c. 637, become part of the State Aeronautics Fund. It is my 
opinion that such income Avill continue to become part of the State Aero- 
nautics Fund. Although the new Commissioner of Airport Management 
is charged by said chapter 637 with the responsibility for operating Bed- 
ford Airport, nothing contained in this recent legislation relieves him of 
the duty of turning over to the State Aeronautics Fund all moneys re- 
ceived from such operations. Expending the State Aeronautics Fund 



40 P.D. 12. 

remains a matter under the control of the Massachusetts Aeronautics 
Commission, but you will notice that the moneys in said fund may be 
expended only after appropriation by the General Court. Since the State 
Aeronautics Fund is apparently designed primarily to bolster aeronautical 
activities other than those connected with the two State-owned airports, 
my opinion on the question remains in keeping with the general back- 
ground hereinbefore developed. 

You finally ask whether such Federal funds as may be appropriated by 
the Congress of the United States, if they are accepted by the Commis- 
sioner of Airport Management as provided for in G. L. (Ter. Ed.) c. 90, 
§ 50J (inserted by St. 1948, c. 637), are to be regarded as within the pur- 
view of G. L. (Ter. Ed.) c. 90, § 39C, above quoted. If I understand your 
question correctly, you wish to know whether all moneys appropriated by 
the Federal Government for airport purposes within the Commonwealth 
are to be regarded as moneys to be expended by the Massachusetts Aero- 
nautics Commission, regardless of whether the Commission accepts and 
receives such Federal funds or whether the new Commissioner of Airport 
Management accepts and receives such Federal funds. 

G. L. (Ter. Ed.) c. 90, § 40, as most recently amended by St. 1946, 
c. 582, contains a provision in the second paragraph which states that the 
Massachusetts Aeronautics Commission may: — 

"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 sub- 
division thereof, for the acquisition, establishment, construction, enlarge- 
ment, improvement, protection, equipment, maintenance and operation 
of airports and other air navigation facilities within the commonwealth 
or such subdivisions, or jointly; ..." 

G. L. (Ter. Ed.) c. 90, § 50J, as inserted by St. 1948, c. 637, is one section 
of a group dealing with State-owned airports under the new heading 
within said chapter 90 entitled "Management of State-owned Airports." 
Said section 50J reads in part as follows : 

"The commissioner shall, subject to the approval of the board, accept, 
receive and receipt for federal funds, and also other funds, public or 
private, for and in behalf of the commonwealth for the acquisition, estab- 
lishment, construction, . . . equipment, maintenance and operation of 
any state-owned airports. ..." 

The answer to your last question is in my opinion dependent upon the 
nature of any specific appropriation: if it is an appropriation for State- 
owned airports, it must be accepted by the new Commissioner of Airport 
Management, subject to the approval of the new State Airport Manage- 
ment Board, and the Federal funds thus appropriated will not be regarded 
as within the purview of G. L. (Ter. Ed.) c. 90, § 39C. On the other hand, 
Federal funds appropriated for non-State-owned airports within the 
Commonwealth will continue to fall within the provisions of said section 
39C. 

You have called to my attention St. 1948, c. 599, the "Capital Outlay 
Program" enacted during the recent session of the General Court. Item 
No. 8004-42 thereof appropriates $470,000 to "Service of the Massachu- 
setts Aeronautics Commission" for the reimbursement to cities and towns 
of the State's share of airport construction (under G. L. [Ter. Ed.] c. 90, 
§ 5 IK, as amended by St. 1947, c. 593), to be available for matching 



P.D. 12. 41 

Federal funds for the fiscal year 1948 and succeeding years "including 
the commonwealth's share of projects at the state-owned airport of Bed- 
ford." Should Federal funds be forthcoming, I am of the opinion that 
appropriate adjustment of financial arrangements would be required in 
view of the fact that chapter 599 is postdated by the enactment of St. 
1948, c. 637. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Allotment of Funds — Temporary Certificates. 

Oct. 15, 1948. 
Hon. Thomas H. Buckley, Commissioner of Administration. 
Dear Sir : — I am in receipt from you of the following letter : 

"The Commission on Administration and Finance, in what it believes 
to be in the interest of good administration of the fiscal affairs of the 
Commonwealth, is considering the recommendation to the Governor that 
he should permit the Budget Commissioner to issue a temporary certificate 
of the sufficiency of funds in an appropriation account to cover paj^ments 
from funds appropriated under that account, where the allotment, which 
is made by the Budget Commissioner, approved by the Commission on 
Administration and Finance, with final approval by the Governor, may 
be delayed through the absence of certifying officials and fails to provide 
funds, though appropriated but unallotted, for the payment of obligations 
incurred by the Commonwealth. 

"As cited in the enclosed letter, we have found oftentimes a very small 
amount needed in order to clear a complete total expenditure, but which 
has not been allotted through the proper authority, though the unex- 
pended balance in the appropriation is available for allotment and ex- 
penditure. 

"We would ask you whether, in the exercise of the administrative 
authority of the Governor, and with the application of G. L. c. 29, §§ 26 
and 29, as amended, such temporary certificates can be authorized by 
His Excellency the Governor, to be issued by the Budget Commissioner, 
pending confirmation and approval of that temporary certificate by later 
authorization and action by the Commission and the Governor." 

I am not aware of any provision of law which explicitly or by implica- 
tion empowers the Governor to authorize the Budget Commissioner, or 
an}^ other official, to issue such "temporary certificates" as are mentioned 
in your letter. 

The duty and power of making the allotments referred to in G. L. 
(Ter. Ed.) c. 29, §§ 26-29, as amended, have been vested in the Governor 
and are not such as may be delegated. Permitting the issuance by the 
Budget Commissioner of the "temporary certificates" referred to in your 
letter would, if such certificates were to serve as an authorization to the 
official acting under them and protected by them, either compel the 
Governor to make or give his approval to an "allotment" later without 
the exercise of his own judgment, or else might leave the official who had 
made or contracted for expenditures in reliance upon a "temporary cer- 
tificate" at fault, and obligations which he had incurred when so relying 



42 P.D. 12. 

would be invalid under the terms of the last sentence of said section 26, 
as amended. 

If it is desired to arrange for the making of certificates of small sums as 
belated or additional "allotments" in the absence of the Governor or 
other officer now necessarily concerned in presenting allotments in final 
form to the Governor for his approval, resort should be had to the Legis- 
lature for the enactment of specific statutory provisions establishing the 
desired arrangement and specifying the size of such additional allotments 
which might thus be dealt with. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Chiefs of Fire Departments — Authority to Issue Fire Permits — Forest 

Wardens. 

Oct. 22, 1948. 

Hon. Arthur T. Lyman, Commissioner of Conservation. 

Dear Sir: — I am in receipt from you of a letter in which you write me: 

"I respectfully request your opinion on the interpretation of the law 
relative to the issuance of permits for open-air fires. This is found in 
G. L. c. 48, § 13, as more recently amended by St. 1945, c. 269. 

"Under this law forest wardens of towns are authorized to issue permits 
for open-air fires, but in towns where the office of forest warden and chief 
of the fire department are held by different persons there is often a conflict 
of authority as happened during the recent fire emergencies." 

In relation to the foregoing you have asked my opinion upon the follow- 
ing questions: 

"1. Does the chief of the fire department in a town have authority to 
issue fire pei'mits?" 

The chief of the fire department in a town has authority to issue fire 
permits (G. L. [Ter. Ed.] c. 48, § 13, as amended). 

"2. If the answer is in the affirmative, does this apply where there is a 
duly appointed forest warden?" 

In towns having a chief of the fire department, he is to act as forest 
warden (G. L. [Ter. Ed.] c. 48, § 43). In towns where there is a chief of 
the fire department, no forest warden is to be appointed, as G. L. (Ter. 
Ed.) c. 48, § 8, provides for the appointment of forest wardens only in 
towns not having a chief of a fire department, in the following phraseology: 

"The mayor in cities and, except as provided in section forty-three, the 
selectmen in towns shall . . . appoint a forest warden. ..." 

"3. If the answer to question 1 is in the affirmative, does this apply 
to the chief of the fire department in a fire district? 

"In relation to the last question, I would state that there are towns 
where there is a duly appointed forest warden and the town is divided 
into 2 or 3 fire districts, each district having a chief of its fire department." 

The chief of the fire department of a fire district formed under G. L. 
. (Ter. Ed.) c. 48, §§ 60 ana 61, does not have authority to issue fire permits. 
The phrase in said section 13, as amended, "chief of the fire department in 



P.D. 12. 43 

cities and towns," refers to the chief of a city or town fire department 
formed under G. L. (Ter. Ed.) c. 43, § 42, or under a special act, not to 
the chief of a district fire department, which is not such a fire department 
of a city or town even though the district be within the territorial bound- 
aries of a city or town. 

In the instance that you give in your letter, in which there are chiefs of 
district fire departments in a town, if there is no chief of a town fire depart- 
ment a forest warden may issue fire permits. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 

Veterans* Benefits — Repayment hy the Commonwealth to Cities and Towns 
for Hospital Care — Public or Private. 

Oct. 25, 1948. 
His Excellency the Governor and the Honorable Council. 

Gentlemen: — I am in receipt from the Executive Secretary of the 
following letter, which in its material parts reads : 

"I have been directed by the Governor and Council to request your 
opinion on the following matter: 

"Whether under St. 1946, c. 584, the Commonwealth is allowed to 
reimburse cities and towns for services rendered to veterans and depend- 
ents of veterans in hospitals supported by taxes in the respective cities 
and towns?" 

A veteran or his dependents who have the necessary qualifications for 
the receipt of "veterans' benefits" as set forth in St. 1946, c. 584, as 
amended, and have fulfilled the requirements for obtaining such benefits 
as set forth in said chapter, are entitled to have paid to or for them as 
part of such benefits the expenses of necessary hospitalization, irrespective 
of whether the hospital where treatment is received is a private hospital 
or a public hospital supported by taxes in a municipality. 

The Commonwealth may repay to a municipality making such pay- 
ments as "veterans' benefits" for hospitalization, irrespective of the 
public or private character of the hospital, in such manner, under such 
conditions, and in such amounts as are set forth in sections 5 and 6, as 
amended, of said chapter 584. 

It was not the intent of the Legislature, as appears from the whole 
context of said chapter 584, as amended, that veterans or their dependents 
should be required to receive hospitalization as indigent persons through 
the medium of "public welfare" instead of by means of the "veterans^ 
benefits" provided in recognition of the service rendered by the veterans 
in wartime. 

In relation to the enclosed communication which was sent me with 
your letter, it would seem that if the necessary qualifications existed and 
the conditions and requirements which I have referred to were fulfilled in 
relation to the veteran's dependent mentioned therein, one-half the bill 
for her hospitalization should be paid by the Commonwealth through the 
Commissioner of Veterans' Services, irrespective of whether the hospital 
involved was a municipal hospital or a private hospital. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



44 P.D. 12. 

Commissioner oj Correction — Limitation of Power of Removal. 

Nov. 16, 1948. 
Hon. Elliott E. McDowell, Commissioner of Correction. 

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

"I respectfully request your opinion as to whether the provisions of 
St. 1946, c. 524, affect or limit in any manner the authority of the com- 
missioner of correction under G. L. (Ter. Ed.) c. 125, § 2, as amended by 
St. 1941, c. 344. 

"If, in your opinion, the authority of the commissioner under the said 
section 2 of chapter 125 is affected or limited by the said chapter 524, 
your further opinion is respectfully requested as to the manner and extent 
of such limitation of authority." 

St. 1946, c. 524, was intended, as its title implies, to prevent the arbi- 
trary removal of certain officers and employees. It added a new section, 
9B, to G. L. (Ter. Ed.) c. 30. 

It provides in substance that "no person" not under civil service em- 
ployed in any institution under the various departments, including the 
Department of Correction, except an employee rendering professional 
service other than a nurse, shall after six months of service be removed 
except for just cause and for reasons given him in writing. It provides 
for a hearing at the request of the employee and for an appeal by him. 

The words "no person employed" as used in section 9B include those 
holding offices as well as those having positions or employment. They 
would appear to include the officers mentioned in G. L. (Ter. Ed.) c. 125, 
§2. 

. Section 2 provides that those officers "shall hold their offices during 
his [the commissioner's] pleasure." 

The commissioner's power of removal as so given in said section 2 is 
limited by the provisions of G. L. (Ter. Ed.) c. 30, § 9B, to the extent 
that he must indicate that it is no longer his "pleasure" that an officer 
mentioned in G. L. (Ter. Ed.) c. 125, § 2, shall hold his office in the manner 
described in said section 9B, and the removal of such officer must be 
accomplished in the precise manner set forth in section 9B. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Police Annuitants — G. L. {Ter. Ed.) c. 82, § 89 — Benefits. 

Nov. 17, 1948. 
Hon. Thomas F. Sullivan, Police Commissioner. 

Dear Sir : — With relation to seventeen annuitants receiving annuities 
by reason of the death of Boston police officers prior to the enactment of 
St. 1948, c. 552, you have asked me the following question : 

"Should limitation date. January 1, 1930, be interpreted as barring 
annuitants whose husbands died prior to January 1, 1930, from receiving 
the increase of $200 provided for in this act?" 



P.D. 12. 45 

I answer your question in the negative. 

Section 89A of G. L. (Ter. Ed.) c. 32, inserted by St. 1948, c. 552, while 
making pro\dsion for the application of its benefits to annuitants deriving 
their rights by reason of the death of a police officer on or after January 1, 
1930, nevertheless extended its benefits to those who were already being 
paid annuities by reason of the death of a police officer under the provisions 
of section 89 or of any special law. 

The last two sentences of said section 89A are to be read together so 
as to form an harmonious whole. When so read they indicate an intention 
on the part of the Legislature to extend the benefits of the section to the 
annuities already being paid, irrespective of the date of death of the poUce 
officers to which they related. 

Such next to the last sentence of said section 89A reads : 

''Any annuities being paid under the provisions of section eighty-nine, 
or any similar annuities being paid under the provisions of any special law, 
shall, from and after the acceptance of this section as aforesaid, be paid 
under and subject to the provisions of this section; provided, that annui- 
ties paid by the commonwealth under this section shall be so paid from 
and after September first, nineteen hundred and forty-eight." 

It follows that the seventeen annuitants to whom you refer in your 
letter are entitled to have the amount of their annuities calculated in 
accordance with the provisions of said section 89A. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Bostoyi Police Department — Jurisdiction over State-controlled Property — 
Jurisdiction over Metropolitan Transit Authority Property. 

Nov. 18, 1948. 
Hon. Thomas F. Sullivan, Police Commissioner. 

Dear Sir: — You have asked me seven questions as to the authority of 
the Boston Police Department to police various properties within the 
limits of the city. 

The principles of law set before you in the Attorney General's letter to 
you of April 15, 1947, with relation to the Logan International Airport 
(Attorney General's Report, 1947, p. 91) are applicable to your present 
questions. These questions read: 

"1. Has the Boston Police Department concurrent jurisdiction with 
the State Police regarding Commonwealth Pier, South Boston, Massa- 
chusetts? 

"2. Has the Boston Police Department concurrent jurisdiction with 
the State Police regarding the Boston State Hospital, Mattapan, Massa- 
chusetts? 

"3. Has the Boston Police Department concurrent jurisdiction with the 
State Police in armories owned by the Commonwealth located in the City 
of Boston? 

"4. Has the Boston Police Department concurrent jurisdiction with 
the State Police regarding the Public Works Building, 100 Nashua Street, 
Boston, Massachusetts? 



46 P.D. 12. 

"5. Has the Boston Police Department concurrent jurisdiction with 
the State Pohce regarding State-controlled property known as the Castle 
Island Terminal located in South Boston, Massachusetts? 

"6. Is the jurisdiction of the Boston Police Department in each of the 
foregoing instances confined to 'the pursuit and apprehension of persons 
who have committed a breach of any statute, ordinance or regulation 
within the City of Boston, and have taken refuge in the above-mentioned 
State-owned or controlled property? ' 

"7. Has the Boston Police Department police jurisdiction regarding 
property of the Metropolitan Transit Authority located in Boston, which 
is now owned and/or controlled by the Commonwealth?" 

I answer the first five questions in the negative and the sixth in the 
affirmative. 

With relation to the seventh question, I advise you that the Metro- 
politan Transit Authority (see St. 1947, c. 544), although a political 
subdivision of the Commonwealth, is a body politic and corporate unlike 
the departments and divisions of the Commonwealth's government re- 
ferred to in your first six questions, and its property is not the property of 
the Commonwealth in the sense in which the properties referred to in 
your first six questions are. So as to the property of the Metropolitan 
Transit Authority, you have authority to police such of it as is within the 
city of Boston. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



State Officers — Defined — Public Administrators and Medical Examiners. 

Nov. 29, 1948. 

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

Sir: — I am in receipt from Your Excellency of the following letter: 

"Your opinion is requested on the following questions: 

"1. Are public administrators, medical examiners and associate medical 

examiners, or any of them, state officers as that term is used in St. 1939, 

c. 304, so that they come within the provisions of that legislation? 

"2. If any of the above mentioned officials are state officials, as used in 

said chapter, then do they fall within any of the exceptions set forth in 

said legislation?" 

No authoritative opinion has been rendered by the courts of the Com- 
monwealth upon the subject matter of your question. 

I am of the opinion that of the officers mentioned in the first question 
in your letter a public administrator is not a "state officer" as the quoted 
words are used in St. 1939, c. 304, but that a medical examiner and an 
associate medical examiner are such "state officers." 

A pubhc administrator is Hmited in the scope of his functions to ad- 
ministration upon the estates of persons who die intestate under certain 
circumstances "within his county or elsewhere, leaving ^property in his 
county to be administered." 

Such an administrator acts in any specific instance, except with relation 
to estates of less than one hundred dollars, under administration granted 



P.D. 12. 47 

by the probate court of his county, and his compensation is paid not out 
of the pubhc treasury but from estates subject to such administration. 
He would appear to be a county officer rather than a "state officer" as 
the quoted words are employed in the instant statute. 

A medical examiner and an associate medical examiner, though pos- 
sessing many of the attributes of county officers, nevertheless are not 
entirely limited to performing their duties within the county "in and for 
which" they were appointed but may, under certain circumstances, exer- 
cise their functions outside such county (G. L. [Ter. Ed.] c. 38, § 2, amended 
by St. 1945, c. 632). This being so. and as they are appointed by the 
Governor, I am of the opinion that each of them comes within the sweep 
of the words "state officer" as used in said St. 1939, c. 304, and do not 
appear to fall within the exceptions set forth in said chapter 304 to which 
you refer in your second question. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Civil Service Law — St. 194-8, c. 311 — Specific Appropriations for Salary 

Increases. 

Nov. 29, 1948. 

Hon. Thomas H. Buckley, Commissioner of Administration and Finance. 

Dear Sir: — In reply to your letter of recent date relative to St. 1948, 
c. 311, § 2, paragraphs (6), (7) and (9), in my opinion there is no real 
conflict between the provisions of said paragraphs (6) and (7) and para- 
graph (9). 

Paragraphs (6) and (7) deal with transfers, reinstatements and promo- 
tions of employees and advancements in salary grades and rates of com- 
pensation. 

Paragraph (9) reads as follows : 

"No increase in salary shall be effective for any position before the 
effective date of the appropriation act which includes an appropriation 
made for the purpose of, and sufficient to cover, the cost of such increase." 

The phraseology of said paragraph (9) does not indicate a legislative 
intent that specific appropriations must be made in every instance to 
cover the cost of increases in compensation accruing to employees under 
said paragraphs (6) and (7). Appropriations are not ordinarily made in 
such a detailed manner. 

The rule applicable to such legislation was stated in an opinion of one 
of my predecessors in office (Attorney General's Report, 1939, p. 17) as 
follows : 

"It cannot be said to be a necessary conclusion as a matter of law that 
'an appropriation sufficient to cover' increases in certain salaries has not 
'been granted by the General Court in accordance with estimates for the 
budget filed as required by law' merely because such increases have not 
been specified with particular detail in the budget estimates." 

Appljdng this same principle to the instant matter, if there is an avail- 
able over-all appropriation in a particular department or division sufiicient 
to cover salary increases such as you have written about, this will constitute 
the "appropriation" mentioned in said paragraph (9), and an increase 



48 P.D. 12. 

in salary arising from action under paragraphs (6) and (7) will not be 
prohibited. 

Such increases, however, must fall within the minimum and maximum 
salary ranges established for the position to which an employee is entitled 
to be transferred or promoted. If so, no change in the established salary 
range for a position is entailed but, provision being made only for payment 
of amounts within such range according to the scheme of salary ranges of 
uniform application prescribed by said chapter 311, such increases so 
made are not in violation of the provisions of section 6 of the general and 
supplementary appropriation acts. 

There does not appear to be any conflict between said chapter 311 and 
the Civil Service Law, to the possibility of which you allude. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Bond Retirement Date — Computation of Time. 

Nov. 29, 1948. 
Hon. Laurence Curtis, Treasurer and Receiver General. 

Dear Sir: — In a letter dated November 16, 1948, you have raised 
a question concerning the interpretation of the following sentence con- 
tained in St. 1943, c. 538. 

"Any such bonds may be called, retired and cancelled by the common- 
wealth on any date upon which interest is payable thereon, after five 
years from their respective dates of issue, by payment by the common- 
wealth of the amount of the face of said bonds with any accumulated 
unpaid interest, if notice of the call is given to the holders thereof at 
least ninety days before the call date, and the bonds shall contain a state- 
ment to that effect." 

You inform me that the Commonwealth proposes to issue bonds under 
the authority contained in said chapter 538, the date of issue of which 
bonds will be December 1, 1948, with interest payable semi-annually 
June 1 and December 1, and you have asked my opinion as to the first 
date upon which, after notice as provided in the act, said bonds may be 
called, retired and cancelled. 

It is a well-settled principle that words are generally to be construed 
according to their legal sense or ordinary import; and, if this be doubtful, 
the intention of the Legislature is to govern when the question relates to 
the construction of a statute. It is the general rule in this Commonwealth 
that the computation of time from a date, event or act excludes the day 
from which the time begins to run. Bigelow v. Willson, 1 Pick. 485; 
Opinion of the Justices, 291 Mass. 572, 574; Boston Penny Savings Bank v. 
Assessors of Boston, 314 Mass. 599, 600. 

It is also a general rule in this Commonwealth that where a time is to 
be computed after a certain date, it is meant that such date should be 
excluded in the computation. Bigelow v. Willson, supra. 

There is no ambiguity in the language used in St. 1943, c. 538, nor is 
there any indication that the Legislature intended that the words therein 
used should be construed otherwise than according to their legal sense or 
ordinary import. It follows, therefore, that the date of issue, December 1, 



P.D. 12. 49 

1948, should be excluded in computing the period of five years. The last 
day of the five-year period will therefore be December 1, 1953. As the 
act provides that the bonds may be called only on a date upon which 
interest is payable thereon, after the five-year period, it is my opinion that 
the first date upon which, after notice as provided in the act, these bonds 
may be called is June 1, 1954. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Director of Division of Law Enforcement — Authority to Employ Deputy 
Conservatio7i Officers to Serve Without Compensation. 

Nov. 29, 1948. 
Hon. Arthur T. Lyman, Commissioner of Conservation. 

Dear Sir: — You have asked my opinion on two questions which are 
as follows : 

"I respectfully request your opinion as to whether under the new 
chapter 21 the Director of the Division of Law Enforcement, with the 
approval of the commissioner, may employ deputy conservation officers 
who shall serve without compensation. 

"It would appear that the authority to appoint fish and game wardens 
who receive compensation from the municipalities would continue as 
authorized by St. 1937, c. 413, and would not be affected by the change 
in G. L. c. 21, but I would also respectfully request your opinion on this 
matter." 

1. In relation to your first question, I am of the opinion that the Director 
of the Division of Law Enforcement may not employ deputy conservation 
officers to serve without compensation. 

Former G. L. (Ter. Ed.) c. 21, before its repeal by St. 1948, c. 651, and 
the enactment thereby of a new chapter 21, provided explicitly in section 7 
for the appointment by the Director of Fish and Game of deputy con- 
servation officers, "who shall serve without compensation." 

No such provision is to be found in the new chapter 21 and no authority 
is therein given to anyone to appoint such officers to serve without com- 
pensation. 

If officers or employees are to serve without compensation and not in 
the ordinary manner as contemplated by the provisions of the General 
Laws, the intent of the Legislature in this respect will be plainly and 
specifically stated. It is not so stated in the new chapter 21 and the fact 
that such a provision for service without pay, which had been in the 
earlier law, was entirely omitted from the present enactment is significant 
as showing that the Legislature did not intend in the new chapter 21 to 
authorize the appointment of officers or employees who were to Avork for 
nothing. 

2. With regard to your second question, I am of the opinion that inas- 
much as section 3 of St. 1937, c. 413, does not appear to have been repealed, 
it would not be affected by the change in G. L. (Ter. Ed.) c. 21, except 
that the reappointments referred to in said section 3 are now to be made 
by the board estabUshed under sections 1 and 2 of said chapter 21. (See 



50 P.D. 12. 

Foley V, Director of Civil Service, 316 Mass. 550, 552.) It is to be noted 
that no new appointments may be made under authority of said chapter 
413, only reappointments of certain employees designated therein. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Metropolitan District Water Supply Commission Employees — Eligibility 
to Join Retirement System. 

Dec. 2, 1948. 

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

Dear Sir : — In reply to your recent letter, let me say that I am of 
the opinion that St. 1947, c. 651, to which you refer, irrespective of earlier 
statutes deahng with the same subject which have been repealed exphcitly 
or by implication, indicates a legislative intent that those who were em- 
ployees of the Metropolitan District Water Supply Commission should be 
ehgible to join the Retirement System, regardless of whether they started 
work for the said Metropolitan District Water Supply Commission at an 
age over fifty-five. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Teachers — Retroactive Retirement Benefits. 

Dec. 7, 1948. 

Hon. John J. Desmond, Jr., Commissioner of Education, Teachers' Retire- 
ment Board. 

Dear Sir: — In reply to your recent letter, I am of the opinion that 
the intent of the Legislature as expressed in St. 1946, c. 476, was to extend 
the benefits conferred by the last sentence of St. 1945, c. 707, referred to 
in your letter, to teachers retired before the effective date of said chapter 
707 from such effective date. 

In this sense said chapter 476 was retroactive in effect and the action 
of the town of Wellesley in increasing the pensions of teachers retired prior 
to the effective date of said St. 1945, c. 707, would not have been erroneous 
if such increase had been made retroactive to such effective date, which 
was October 23, 1945. Increases from September 1, 1945, were not pro- 
vided for by said chapter 476. 

Reimbursement on account of the increases should be allowed from 
said October 23, 1945. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 51 

Masters in Chancery — as State Officers. 

Dec. 13, 1948. 
His Excellency Robert F. Bradford, Governor of the Commonwealth. 
Sir: — I am in receipt from Your Excellency of the following letter: 

"1. Are masters in chancery State officers as that term is used in St. 
1939, c. 304, so that they come within the provisions of that legislation? 

"2. If the above mentioned officials are State officials, as used in said 
chapter, then do they fall within any of the exceptions set forth in said 
legislation?" 

1. I answer your first question in the affirmative. 

Prior to 1906 masters in chancery were probably county officers, as w^as 
intimated in A'eiimwrket National Bank v. Cram, 131 Mass. 204, but by 
the passage of St. 1906, c. 187, the pertinent provisions of which are em- 
bodied in G. L. (Ter. Ed.) c. 221, § 53, such masters were specifically 
given "jurisdiction and the right to act in any and every county." 

2. I answer your second question in the affirmative. 

In an opinion of a former Attorney General (IV Op. Atty. Gen. 457) 
it was held that such a master was not a "judge" within the meaning of 
"judge of any court," as used in Article VIII of the Amendments to the 
Constitution, but it was pointed out that such a master exercises some 
"judicial functions," as he undoubtedly does. This being so, he would 
appear to be a "judicial officer" as those quoted words are employed in 
St. 1939. c. 304. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Retirement — Maintenance Considered as Compensation for Veterans' 

Retirement. 

Dec. 13, 1948. 

Hon. Thomas H. Buckley, Commissioner of Administration. 

Dear Sir: — In a recent communication you have asked my advice as 
to what should be the effect of St. 1948, c. 311, which sets up a schedule 
of salary grades wdth the rates therefor, on the determination by the 
Director of Personnel and Standardization as to the amount which is to 
be added to the cash payment of an employee receiving maintenance from 
the Commonwealth under G. L. (Ter. Ed.) c. 32, § 22 (1) (c), for the 
purpose of fixing the amount upon which deductions for retirement pur- 
poses are to be based, and under G. L. (Ter. Ed.) c. 32, § 56, for the pur- 
pose of fixing the amount to be allowed a veteran upon retirement at one- 
half his compensation. 

You state that prior to the enactment of St. 1948, c. 311, the compensa- 
tion for offices and positions in the groups which carried maintenance was 
fixed at a certain amount in cash plus maintenance, and provision was 
made in those cases in which for any reason maintenance which would 
otherwise be provided could not be provided for the payment to the 
employee of an additional amount in cash in lieu of the maintenance, the 



52 P.D. 12. 

amount so to be paid being fixed by the evaluation by the Director of 
Personnel and Standardization of the maintenance. 

As a result of the enactment of St. 1948, c. 311, all salaries are now 
treated as being on a cash basis, and in those cases in which maintenance 
is furnished by the Commonwealth the officer or employee is required to 
pay the Commonwealth for the maintenance furnished, payment being 
accomphshed by deductions from the cash salary fixed for his position. 
The amount now being deducted for full maintenance is exactly the same 
regardless of whether the maintenance is merely quarters, board and 
laundry or so-called family maintenance, and is $360. 

I understand that in only a very few out of the total number of positions 
in which maintenance is furnished does the maintenance consist of more 
than quarters, board and laundry. Further, I understand that in every 
case in which maintenance other than quarters, board and laundry is 
furnished, that is, in cases of so-called family maintenance, the position 
in connection with which the maintenance is given is of a kind in which 
the presence of the officer or employee in the institution is required more 
or less continuously, and that as to the incumbents of those positions the 
Commonwealth would, if necessary, rent nearby quarters for the em- 
ployee or reimburse him for rent paid, rather than pay the employee cash 
in lieu of his quarters, and in every such case would furnish the food 
allowance which goes with such maintenance. 

The said figure of $360 as the charge to be made for maintenance fur- 
nished to an employee was the amount used by the Legislature in deter- 
mining the salary schedules contained in St. 1948, c. 311, and by the 
Committee on Ways and Means in fixing the grades to which permanent 
positions were to be allocated. The action of the committee in the latter 
respect was impliedly approved by the Legislature by the enactment of 
section 6 of the general appropriation bill, St. 1948, c. 198, incorporating 
by reference the committee's approval of the allocations of positions to 
the new salary grades. The use of said figure for such determination is 
apparent from an examination and comparison of the old salary scale's for 
positions with maintenance and the new salary rates therefor, making an 
allowance for the general increase in salary rates effected by the said 
chapter. While the said figure for salary grade purposes has legislative 
authority to support it, it does not necessarily follow that it must be used 
in determining the value of maintenance in every case under G. L. (Ter. 
Ed.) c. 32, § 22 (1) (r) and § 56. 

You ask specifically whether the amount determined by the Director of 
Personnel and Standardization under G. L. (Ter. Ed.) c. 32, § 22 (1) (c), 
as an employee's compensation for the purpose of determining an em- 
ployee's salary for retirement deductions, and under section 56 of said 
chapter for determining the salary of a veteran for retirement purposes 
can ever exceed the amount of salary fixed by the grade in the salary 
schedule applicable to the employee's position under St. 1948, c. 311. I 
advise you that the amount so determined by the Director of Personnel 
and Standardization can, in my opinion, exceed the amount of salary to 
which the employee would be entitled under St. 1948, c. 311, but only in 
those cases where the employee holds a position entitling him to receive 
family maintenance. 

It is a matter of common knowledge that the Commonwealth does not, 
particularly since the enactment of the statute providing for a forty-hour 
work week, have the accommodations necessary to furnish all its institu- 



P.D. 12. 53 

tional employees with quarters. The Legislature must be presumed to 
have b(H>n acquainted with this fact. Thus, to say that the Legislature 
intended that any greater figure than 1?360 could be taken for fixing the 
value of maintenance consisting of quarters, board and laimdry only 
would be to say that the Legislature intended that persons in the same 
grade and doing the same work, some of whom were receiving maintenance 
and some receiving a cash payment in lieu of maintenance, should be 
treated differently for retirement purposes. It cannot be that the Legis- 
lature intended officers or employees in positions the incumbents of which 
were furnished with maintenance consisting merely of quarters, board and 
laundry should have the question of their retirement rights determined 
by the accident of whether the Commonwealth could or could not furnish 
them with quarters. The Legislature must be taken to have considered 
the question of the relation of the figure of $360 to the true value of such 
maintenance and to have considered what advantage, if any, it was in the 
interest of the Commonwealth to extend to those employees to whom 
such maintenance is provided, whose presence in the institutions at times 
other than actual working hours was thereby to a great extent secured, 
over those employees receiving a cash payment in heu of such maintenance. 
It is clear that the figure of $360 as the value of maintenance was con- 
sidered by the Legislature as the figure to be taken for the value of main- 
tenance consisting merely of quarters, board and laundry, and that figure, 
or a commutation thereof, was the figure to be used to be added to the 
cash payment being received by an employee on full or partial mainte- 
nance consisting merely of quarters, board and laundry by the Director 
of Personnel and Standardization under G. L. (Ter. Ed.) c. 32, § 22 (1) (c) 
and § 56. 

It cannot be said, however, that the Legislature intended that such 
figure should represent the value of maintenance consisting of more than 
the furnishing of mere quarters, board and laundry and to represent the 
value for retirement purposes of so-called family maintenance. 

As I have already pointed out, the fact that in such cases there would 
never be any question of determining the amount to be allowed a person 
in lieu of such maintenance, because the few positions in this group re- 
quired that the officer or employee actually be furnished with the main- 
tenance by the Commonwealth, makes the determination of the value of 
such maintenance for salary purposes by the Legislature or by the officers 
of the Commonwealth of minor importance, for if the value is fixed at an 
arbitrarily low figure the result is that the position is put in a salary grade 
with a lower total cash salary than would be the case if a larger amount 
were to be deducted for the value of the maintenance furnished. In either 
case the next cost to the Commonwealth and the net return to the oflficer 
or employee would be the same. 

That would not be the case, however, with regard to the employee's 
retirement position. An officer or employee receiving full family mainte- 
nance, the total value of whose compensation in cash and maintenance 
exceeded the salary fixed in the salary schedule for his grade, would suffer 
greatly from a retirement standpoint in comparison with other officers 
and employees, whose salaries were equal to that total value and whose 
positions were in the proper salary grade to entitle them to a cash salary 
equal to such total value. The Legislature made provision for that situa- 
tion in leaving the provisions of G. L. (Ter. Ed.) c. 32, § 22 (1) (c), and 
§ 56 unamended in 1948, despite its enactment of said chapter 311, and, 



54 P.D. 12. 

therefore, the Director of Personnel and Standardization under said sec- 
tions has the authority to determine the regular compensation of officers 
or employees in receipt of family maintenance to be an amount greater 
than the amount of salary fixed by reference to St. 1948, c. 311. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Dentists — Use of the Prefix "Dr." not Forbidden. 

Dec. 15, 1948. 
Mrs. Irene K. Richards, Director of Registration. 

Dear Madam : — Replying to the query of the Secretary of the Board 
of Dental Examiners transmitted to me by you, I am of the opinion that 
the use of the prefix "Dr." by a dentist possessing a doctorate in dentistry 
is not specifically forbidden. If, however, the dentist uses such a prefix 
for the purpose of leading others to think that he is a registered physician 
and endeavors to practice as such, he would be acting in violation of G. L. 
(Ter. Ed.) c. 112, § 6. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Licenses — ■ Hunting, Trapping and Fishing — Issuance. 

Dec. 22, 1948. 
His Excellency Robert F. Bradford, Governor of the Commonwealth. 

Sir: — With relation to the provisions of St. 1948, c. 651, concerning 
the Department of Conservation, you have asked me the following ques- 
tions : 

"1. Has the Director of the Division of Law Enforcement, as created 
by St. 1948, c. 651, the authority to issue licenses for hunting, trapping 
and fishing as required by the various sections of G. L. c. 131? 

"2. Has the Director of the Division of Law Enforcement the authority 
to issue special permits provided by said chapter 131 which extends special 
privileges to holders thereof which are otherwise prohibited by said chapter 
131? 

"3. Has the Director of the Division of Law Enforcement the authority 
to issue such licenses pertaining to marine fisheries as are required by 
G. L. c. 130? 

"4. Has the Director of the Division of Law Enforcement the authority 
to issue special permits provided by said chapter 130 which extends special 
privileges to holders thereof which are otherwise prohibited by said chap- 
ter 130? 

"5. If the answer to any of the foregoing questions be in the negative, 
what board or officer in the Department of Conservation has the authority 
to issue such licenses and permits as are referred to in such question?" 

I answer the first four questions in the negative. 

Said chapter 651 does not contain specific provisions vesting the power 
of issuing licenses and permits in any particular officers. 



P.D. 12. 55 

I am of the opinion that the issuing of Uccmses and permits is not such 
an act as can reasonably be said to be an act of "enforcement" of laws. 
Apprehension and punishment for failure to observe the terms of licenses 
or for unlicensed acts is properly within the meaning of "enforcement." 

Cons(H|uently I am of the opinion that the Director of the Division of 
Law Enforcement created by section 1 of the new chapter 21 of the Gen- 
eral Laws, enacted by section 1 of said chapter 651, derives no authority 
to issue licenses from the provisions of said section 5 of said new chapter 
21, which provide: 

"The director of the division of law enforcement shall . . . have 
charge of, except as otherwise provided by law, the enforcement of all 
laws relative to the department, including all laws relative to fish and 
game. ..." 

Nor does he, in my opinion, derive any authority to issue licenses from 
the further phrase in said section 5 of said new chapter 21 which provides: 

"The director of the division of law enforcement . . . except as other- 
wise provided by law, shall . . . have charge of the administration and 
enforcement of laws which it is the duty of the department to administer 
and enforce, . . ." 

With relation to all licenses and permits which are to be issued under 
G. L. (Ter. Ed.) c. 131, it is specifically provided in connection with each 
license or permit authorized thereby that the Director of the Division of 
Fisheries and Game shall be the State officer to issue such license or permit. 

Even if the phrase "administration and enforcement" be sufficiently 
broad so as to include a power to issue licenses and permits, the words 
"except as otherwise provided by law" remove the power to license from 
the Director of Law Enforcement, since the duty to issue licenses and 
permits vmder said chapter 131 is otherwise provided for by law and is 
vested in the Director of Fisheries and Game. (See c. 131, §§ 2, 6, 9, 10, 
61, 66, 78, 87, 93, 104, 106, 110, 111, 112.) 

Inasmuch as in my opinion the issuance of licenses and permits under 
the provisions of said chapter 131 does not pertain "to the enforcement" 
of law or laws, the terms of the last paragraph of section 6 of said chapter 
651 do not serve to take from the Director of Fisheries and Game the 
power to issue the licenses and permits referred to in said chapter 131. 
Such powers remain in him and do not vest in the Commissioner of Con- 
servation. Said paragraph reads: 

"Wherever in the General Laws reference is made to the commissioner 
of conservation or the director of the division of fisheries and game per- 
taining to the enforcement of the laws of tJie division of fisheries and 
game, it shall, for the purpose of this act, mean the commissioner." 

Such a construction would seem to be in harmony with the intent of 
the Legislature in enacting the new chapter 21 which appears to have 
been, at least in part, to separate the powers and duties of the Commis- 
sioner of Conservation from those of the Division of Fisheries and Game. 

As concerns the power to issue licenses and permits under G. L. (Ter. 
Ed.) c. 130, much the same considerations apply. 

The Director of the Division of Law Enforcement has no duties to 
perform with relation to the issuance of such licenses and permits, nor 
have the coastal wardens appointed by him who are enforcement officers 



56 P.D. 12. 

particularly for the purposes of said chapter 130, nor have the conservation 
officers who are likewise enforcement officers with special relation to said 
chapter 131. 

The duty of issuing licenses and permits under said chapter 130 appears 
to be vested in the Director of Marine Fisheries, and since such issuances 
are not, in my opinion, duties of "enforcement" and their performance is 
expressly provided for "otherwise" than by the Director of the Division 
of Law Enforcement, they do not rest upon the latter official. (See chap- 
ter 130, §§ 2, 4, 19, 38, 46, 70, 75, 80.) 

The foregoing considerations answer your fifth question. The practice 
of the Department of Conservation in regard to the issuing of licenses 
and permits prior to the enactment of said chapter 651, to which you 
refer, is not controlling in relation to the question of law as to which you 
now inquire. 

If the provisions of said chapter 651 and new chapter 21 of the General 
Laws are considered undesirable, resort should be had to the incoming 
Legislature for desired changes framed in plain and unambiguous terms. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Pension — Length of Service Construed. 

Dec. 28, 1948. 
Hon. William H. Buracker, Commissioner of Public Works. 

Dear Sir: — In reply to your recent letter, I advise you that the first 
group of employees referred to therein are entitled to the pension pro- 
vided by St. 1948, c. 403, and that the second and third groups likewise 
referred to therein are not, upon the facts as you have set them forth, 
entitled to such pension. 

The phraseology of said chapter 403, "who has been in the employ of 
the commonwealth or the department of public works for not less than 
fifteen years," does not apply upon any proper principle of statutory con- 
struction to those who have served only a major portion of a year in fif- 
teen different years with a total service of less than fifteen years, nor to 
those who have given any less service. 

"Year" as used in a statute ordinarily has the meaning of calendar 
year (G. L. [Ter. Ed.] c. 4, § 7, as amended). When the Legislature desires 
to indicate that a certain number of weeks less than fifty-two shall be the 
equivalent for vacation or other purposes of a calendar year, it so states 
in unmistakable terms (see G. L. [Ter. Ed.] c. 41, § 111, as amended). 

If it is desired to pay the pension in question to employees who have 
less service than that mentioned in the first group referred to in your 
letter, resort should be had to the Legislature to amend said chapter 403 
so as to make provision for such payment. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



P.D. 12. 57 

Deputy Conservation Officers — Authority. 

Dec. 28, 1948. 
Hon. Arthur T. Lyman, Commissioner of Conservation. 

Dear Sir: — You have in a recent letter asked my opinion "as to what 
authority, if any, a deputy conservation officer now has whose commis- 
sion as such was issued under the provisions of G. L. (Ter. Ed.) c. 21, as 
it existed prior to its repeal by St. 1948, c. 651." 

St. 1948, c. 651, § 5, provides that employees of the department on the 
effective date of the act shall continue to serve therein. I therefore answer 
your question that such deputy conservation officers, who serve without 
pay (G. L. [Ter. Ed.] c. 21, § 7, prior to amendment of 1948) continue to 
exercise the authority previously vested in them. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



Veteran's Retirement — Computation of Time, Including Service as a City 
Councillor — G. L. (Ter. Ed.) c. 32, § 56. 

Jan. 4, 1949. 

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

Sir: — I am in receipt from Your Excellency of the following letter: 

"Your opinion is requested as to whether membership on the City 
Council of the City of Peabody as a Councillor-at-Large during the years 
1935, 1936, 1937 and 1938 is to be included as time in the service of a city 
in computing the time of service necessary for retirement under G. L. 
c. 32, § 56, as amended." 

Under G. L. (Ter. Ed.) c. 32, § 56, as amended, for the purposes of re- 
tirement, time spent in municipal service may be tacked onto that spent 
in the service of the Commonwealth to make up the necessary period 
(see Attorney General's Report, 1931, p. 97). 

There is no statutory requirement that such service shall be full-time 
service. I see nothing in the act to incorporate the city of Peabody (Sp. 
St. 1916, c. 300) with relation to the councillors-at-large provided for the 
city council therein which would prevent the counting of the time spent 
in such office toward the time necessary for a veteran's retirement. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



National Guard — Expenditure of Unit Funds for Automobile Liability 

Insurance. 

Jan. 10, 1949. 

Maj. Gen. William H. Harrison, Jr., Adjutant General. 

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

"1. Due to the greatly increased number of motor vehicles issued to 
the National Guard, the number of accidents is increasing and involving 



58 P.D. 12. 

a greater amount than is annually appropriated by the Legislature, despite 
all administrative action to decrease them. 

''2. In view of the above situation, it is felt that it would be more 
economical and efficient to require each unit of the National Guard to 
take out insurance, payable from the unit funds. To that end, arrange- 
ments have been tentatively made to provide group insurance, explana- 
tion of which is contained in Inclosure No. 1." 

and have requested my opinion ''as to the legality of the foregoing pro- 
cedure." 

In my opinion it is not legal to require units of the National Guard to 
take out liability insurance payable from the unit funds. 

The Legislature has made provision for dealing with claims arising from 
accidents caused by National Guard motor vehicles under G. L. (Ter. Ed.) 
c. 12, § 3B, as amended by St. 1943, c. 409, § 3, and with relation to prop- 
erty damage caused by such vehicles by G. L. (Ter. Ed.) c. 33, §§115 and 
116, and appropriations are made for such purposes. 

The unit funds described in G. L. (Ter. Ed.) c. 33, § 52, do not appear 
to have been intended by the Legislature to be such funds as might be 
used for the purchase of insurance. Although it is provided that such 
funds "shall be maintained and conducted as the commander-in-chief 
may prescribe in regulations," this does not vest in the commander-in- 
chief unlimited discretion nor permit him to prescribe that they shall be 
maintained and conducted for purposes outside of those intended by the 
Legislature. There is nothing in the phraseology of appropriation items 
for this so-called unit fund, which read "for allowances to companies and 
other administrative units, to be expended under the direction of the 
adjutant general" (St. 1948, cc. 198 and 336, item 0403-01), to indicate a 
legislative intent that such appropriations shall be spent for the purchase 
of liability insurance in view of the provisions for dealing with claims 
growing out of accidents already referred to. 

Specific authority should be sought from the Legislature if it is con- 
sidered desirable to depart from what appears to be the general policy of 
the Commonwealth and insure against liability for injury and damage 
caused by motor vehicles. 

Very truly 3''0urs, 

Clarence A. Barnes, Attorney General. 



Life Insurance Policies — Cash Surrender Value — Modification — Reserve. 

Jan. 17, 1949. 
Hon. Charles F. J. Harrington, Commissioner of Insurance. 

Dear Sir: — In a recent communication you have asked me four 
questions relative to life policies issued prior to January 1, 1948, on which 
the net value of policies was computed at their date of issue on the basis 
of the American Experience Table of mortality, as provided by the appli- 
cable statute, with interest at three and one-half per cent and on which 
now the company elects under the statute to compute such net value at 
three per cent to assure the accumulation of a sufficient fund to liquidate 
the policies at maturity. 

These policies contain provisions to the effect that the cash surrender 



P.D, 12. 59 

value will be the reserve on the policy at the date of default in the payment 
of premium and that the reserve is compiled upon the American Experi- 
ence Table of mortality with interest at three and one-half per cent per 
annum. The policies also contain, as required by statute, a table speci- 
fying the loan, cash surrender and other values payable thereunder. 

Such provisions and tables fix the amounts payable as cash surrender 
and other values by way of contract between the insured and the insurer 
and are binding on both. These terms may be modified only by reason of 
some provision of the contract of insurance or by some statutory provision. 
There is no provision in the contract providing for such modification and 
I am of the opinion that the provisions of G. L. (Ter. Ed.) c. 175, § 144, 
as in force prior to the effective date of St. 1943, c. 227, do not authorize 
such a modification of the contract terms by authorizing a change on the 
part of the insurer in interest assumption. It follows that a company by 
reducing its assured rate of interest, otherwise than by agreement with 
the insured, does not increase as between it and the insured the cash 
surrender and other values as set forth in the policy. 

The matter is not altogether without doubt. There has been no judi- 
cial construction of the pertinent pro\isions of section 144 but in the 
absence of such construction, which might properly be obtained by a 
petition for a declaratory judgment, I answer your first question in the 
affirmative. This question reads: 

"Does the provision in G. L. c. 175, § 144, that the cash value shall be 
the reserve 'computed on the mortality and interest assumption upon 
which the company elects to reserve as prescribed by section nine,' refer 
to the reserve computed on the mortality and interest assumption upon 
which the insurer had elected to reserve prior to the issue of the policy, 
and specified therein, and upon which the reserve was then being com- 
puted?" 

It follows logically from my answer to your first question that my 
answers to your third and fourth questions are in the negative. These 
questions, as you have framed them, are too long to be set forth herein. 

Your second question reads: 

"Is the 'reserve' referred to in section 144 wherein is defined the mathe- 
matical basis of calculating cash surrender values on individual policies 
at the time of issuance synonymous with the term 'net value' used in 
section 9 wherein is defined the method of computing the aggregate amount 
to be held by a company for carrying out its contracts? (The term 'net 
value of policies' is defined in section 1.) " 

I answer this question to the effect that the word "reserve" in section 
144 refers to the same things as the "net value" calculated pursuant to 
section 9, subdivision 1, Second, of G. L. (Ter. Ed.) c. 175, but calculated 
on the mortality and interest assumption in use by the insurer at the time 
a particular policy was written. The term "net value of policies" defined 
in section 1 of chapter 175 is not employed in .sections 9 or 144, and the 
definition has no application to the words employed in said sections 9 
and 144. 

Very truly yours, 

Clarence A. Barnes, Attorney General. 



60 P.D. 12. 



First Deputy State Secretary — Appointment — "Fails of Reappointment." 

Jan. 31, 1949. 

Hon. Edward J. Cronin, Secretary of the Commonwealth. 

Dear Sir: — I am in receipt of word today from your office that you 
have appointed Leo M. Harlow as your First Deputy and that he has 
already qualified. I therefore am of the opinion that under the law per- 
taining to your office, G. L. (Ter. Ed.) c. 9, § 2, you are within your rights 
in making this appointment, since a deputy in your office has no status 
beyond the term of the Secretary appointing him to that position. 

I find support in this contention in Opinion of the Justices, 275 Mass. 
575, at 579. A deputy secretary of the Commonwealth holds his office 
during the time the official appointing him remains Secretary of the 
Commonwealth, and such a deputy may continue to exercise the duties 
of his office after the expiration of the term of the Secretary who ap- 
pointed him until his successor is appointed and qualified. The court 
states that this is simply a holding over for convenience and confers no 
right for any defined period. It is not a part of the necessary tenure of 
his office. The result is that upon the appointment and qualification of 
Mr. Harlow as First Deputy Secretary of State, the holding over of the 
previous incumbent of the office terminated. The termination of his 
office is not by way of removal or discharge but by expiration of his right 
to hold the office. Since the termination of his office is not by way of 
removal or discharge, there is no necessity for complying with the provi- 
sions of G. L. (Ter. Ed.) c. 32, § 16 (2), as contained in St. 1945, c. 658, 
§ 1, which relates to the removal or discharge of a member of the retire- 
ment system. That the provisions of said section 16 (2) are not intended 
to apply to such a termination of service is clear from a comparison of 
the provisions of said section with those of section 10, as contained in 
St. 1945, c. 658, § 1, which relate to the retirement rights of a member 
who has certain qualifications and who "fails of reappointment," which 
is aptly descriptive of the situation with regard to the person who held 
the office of First Deputy Secretary of the Commonwealth under ap- 
pointment of your predecessor in office. 

My opinion that the Legislature did not intend by the enactment of 
said section 16 (2) to regulate in any way your power to appoint a person 
of your own choosing First Deputy Secretary of the Commonwealth, if, 
in fact, it had the power to do so, is confirmed by that provision of the 
Constitution of Massachusetts which is contained in Part The Second, 
chapter H, section IV, article II, which states: "The records of the 
Commonwealth shall be kept in the office of the secretary, who may ap- 
point his deputies, for ichose conduct he shall he accountable. . . ." (under- 
lining mine). 

In view of this provision of the Constitution I am of the opinion that 
there is no doubt that the Legislature cannot interfere in any way with 
the appointment of his deputies by the duly elected Secretary of the 
Commonwealth. Any question which might have been in doubt l)efore 
the appointment and qualification of Mr. Harlow is now "moot" and 
there is no necessity for a hearing by the State Board of Retirement. 



P.D. 12. 61 

The rights of the person whom Mr. Harlow succeeds as First Deputy- 
Secretary of the Commonwealth are fixed by section 10 for a person who 
"fails of reappointment." 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Massachusetts Public Building Commission — Approval of "Projects" — 

a. L. (Ter. Ed.) c. 92 A. 

Feb. 2, 1949. 

Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir : — In a recent communication you asked my opinion upon 
the following question: 

"as to whether or not it is necessary to file the plans and specifications 
for the improvement provided for by St. 1945, c. 665, for approval by the 
Massachusetts Public Building Commission which was established under 
St. 1947, c. 466." 

I answer this question in the negative. 

In arriving at this opinion I have considered St. 1947, c. 466, § 3, in- 
serting chapter 92 A in the General Laws, which defines the powers and 
duties of the Massachusetts Public Building Commission. By section 1 
of said chapter 92A, each department, office, board, and commission of 
the Commonwealth which proposes to undertake any "project" as de- 
fined in said act shall prepare and submit to the commission, at such times 
and in such form as the commission may require, its requests for such 
projects. The commission shall study the requests thus submitted and 
may develop projects of its own, and the commission shall submit to the 
Budget Commissioner annually on or before the fifteenth day of Septem- 
ber, a report containing a list of all such projects so requested and its 
recommended long-range program for the construction thereof. 

This provision supersedes and by implication repeals G. L. (Ter. Ed.) 
c. 29, § 4, which required that department heads, who in their annual 
reports or otherwise recommend or petition for the expenditure of money 
by the Commonwealth, shall submit details thereof to the Budget Com- 
missioner annually on or before September fifteenth. 

From a consideration of the foregoing, it appears that the Massachu- 
setts Public Building Commission is only concerned with "projects," 
said projects to be formulated of its own initiative or upon proposals sub- 
mitted by the department heads above enumerated. 

The improvement concerning which a^ou requested my opinion was not 
submitted by any department head nor by any recommendation of the 
Massachusetts Public Building Commission but was originated by a peti- 
tion by various citizens of Fall River and resulted in the enactment of 
St. 1945, c. 665. By the terms of this act the Department of Public Works 
was "authorized and directed" to construct a pier and storage terminal 
facilities in said city of Fall River and other work enumerated in section 1 
of said act. By the following sections of the said act the Department of 
Public Works is authorized to take all necessary steps to proceed with the 
various things required to be done and to report its progress annually to 
the Governor and General Court. The only restrictions upon the activi- 



62 P.D. 12. 

ties of the Department of Public Works in carrying out this improvement 
are contained in G. L. (Ter. Ed.) c. 91, §§ 11 and 31, which in terms require 
all contracts entered into by the department to be approved by the Gov- 
ernor and Council and that a public hearing be held before the authorized 
work shall be begun. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Fuel Oil Measurement — Fraction of a Gallon — G. L. {Ter. Ed.) c. 94, § 177. 

Feb. 28, 1949. 
Hon. John J. DelMonte, Commissioner of Labor and Industries. 

Dear Sir : — I have your letter requesting an opinion as to the applica- 
tion of section 177 of chapter 94 of the General Laws. This section, 
among other things, states that whoever demands or accepts pajnnent in 
excess of the regularly quoted selling price of a commodity sold or de- 
livered by weight or measure shall be punished. 

It is my opinion that the proposal of certain vendors of fuel oil to insert 
into consumer-customer contracts a proviso to the effect that a fraction 
of a gallon will be billed at the price of the full gallon nearest to that 
fraction would be in violation of the statute. 

The statute as to weights and measures is designed to protect the public 
against fraud or cheating in the sale of articles covered by the statute. 
See Comjnonwealth v. Gussman, 215 Mass. 349, 351. 

G. L. (Ter. Ed.) c. 94, § 176, provides: 

"'Weight' in a sale of commodities by weight shall mean the net weight 
of all commodities so sold; and contracts concerning such sales shall be 
so construed; provided, that in respect to commodities not intended for 
food or fuel reasonable tolerances or variations shall be permitted in 
accordance with established trade customs. " 

It would appear from the above that the Legislature intended no varia- 
tions or tolerances with respect to food or fuel; and in order to protect 
the public the weight in question must be exact. 

If the proposed practice were permitted, what would prevent a vendor 
from designedly delivering to the consumer just over the half fraction of 
a gallon and receiving therefor the price of a full gallon? The door to actual 
fraud would thus be open. 

Furthermore, if the statute could be construed to permit this practice, 
then it could also be construed to permit charging for a full multiple of 
ten gallons whenever the meter measured over five gallons. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 63 

Veteran — Defined under G. L. (Ter. Ed.) c. 32, § oS — Retirement. 

March 11, 1949. 
Hon. Thomas H. Buckley, Commissioner of Administration and Finance. 

Dear Sir : — You seek my opinion on the question of whether or not 
Walter C. Bell, Executive Secretary of the Youth Service Board, an 
applicant for retirement from the active service of the Commonwealth, is 
entitled to status as a veteran under the provisions of G. L. (Ter. Ed.) 
c. 32, § 58, as amended, which statute makes certain retirement provisions 
for veterans who have been employed in the service of the Commonwealth 
or of any county, city, town or district for thirty years. 

From the facts which you submit to me in your communication and 
otherwise, it appears that the applicant for retirement claims veteran 
service based solely upon service at the officers' training camp at Platts- 
burg, New York, from May 12, 1917, to August 10, 1917, on which latter 
date he was honorably discharged from the provisional regiment in which 
he was serving, by reason of physical disability; and that after his service 
at the training camp at Plattsburg the applicant did not thereafter serve 
in the armed forces, in time of war, meaning thereby in the army, navy, 
coast guard or marine corps of the United States. 

The oath taken by trainees at the training camp at Plattsburg, which 
was the oath taken by the applicant under consideration, was one of 
limited responsibility for the duration of a voluntary three months' train- 
ing period. At any time during this training period the student-trainee 
could have withdrawn, upon his own determination and election and 
upon his own request, from the training camp. 

Manifestly, a clear distinction is to be drawn between those serving in 
the armed forces of the United States by enlistment or commission and 
those who are merely seeking to enter the military service. "It is the 
actual and not the potential status that must govern." Grimley, Peti- 
tioner, 137 U. S. 147. United States v. Union Pacific R.R., 249 U. S. 354, 
360. G. L. (Ter. Ed.) c. 32, § 1. Obviously, the mere fact that a man 
may be called into the army does not make him a soldier of the United 
States so as to constitute him a veteran. By taking the required oath 
when entering the armed forces of the United States the citizen becomes a 
soldier and acquires a new status, a status which he cannot abandon 
merely upon his own request or at his own exclusive will. The taking of 
such oath of allegiance when administered by military authority consti- 
tutes the pivotal fact which changes the status from that of civilian to 
that of soldier in the armed forces of the United States. See Attorney 
General's Report, 1936, p. 30. 

I am of opinion that the word "veteran" as used in the statute under 
consideration (G. L. [Ter. Ed.] c. 32, § 58) means a person who has served 
in the armed forces of the United States in time of war and has been 
honorably discharged therefrom. Scott v. Commissioner of Civil Service, 
272 Mass. 237, 239; Tyler v. Pomeroy et al., 8 Allen 480. Ser\dce at the 
training camp at Plattsburg does not constitute such service. Op. Judge 
Advocate General of the Army, October 10, 1919 (326.6). See G. L. 
(Ter. Ed.) c. 32, § 1, as amended. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



64 P.D. 12. 

Veteran — Defined — Betirement. 

March 15, 1949. 

Hon. John J. Desmond, Jr., Commissioner of Education, Teachers' Retire- 
ment Board. 

Dear Sir: — You ask my opinion on the question of whether or not 
Walton Shepard Hall, a member of the retirement system of the Com- 
monwealth, is entitled to veteran status for purposes of retirement. 

It appears from the facts submitted with your communication that 
Mr. Hall "was inducted into the service from the jurisdiction of the Local 
Board for Division No. 2, Maiden, Massachusetts, on the twenty-first 
day of July, 1918, and was discharged at Camp Devens, Massachusetts, 
by military authority on the twenty-ninth day of July, 1918, by reason 
of physical incapacity." 

The "Discharge from Draft" of Mr. Hall in its terms provides that the 
prescribed form for such discharge "will not be used in cases of men who 
have been accepted for military service and are subsequently discharged." 

It does not appear from the facts submitted that Mr. Hall was ever 
accepted by the military authorities, after requisite physical examination, 
nor that he was ever given the prescribed oath for those actually entering 
the military service of the United States. 

Our governing statutes for retirement from the public service with 
veteran status contemplate military service in the armed forces of the 
United States in time of war. In my opinion, on the facts stated, Mr. 
Hall is not entitled to such veteran status. See Opinion of the Attorney 
General to Commissioner of Administration and Finance, March 11, 1949. 

Very truly yours, 

Francis E. Kelly, Attorney General. 

Port of Boston Authority — Employee's Term of Service for Retirement to 
Include Service under Boston Port Authority. 

March 28, 1949. 
Hon. Thomas H. Buckley, Commissioner of Administration and Finance. 

Dear Sir: — You have requested my opinion as to the amount of service 
credit to be given an employee of the present Port of Boston Authority 
in connection with the classification of such employee under the provisions 
of G. L. (Ter. Ed.) c. 30, § 46, as amended by St. 1948, c. 311. Specifically, 
the question at issue is whether such employee shall be credited with the 
number of years of service since the date of creation of the present Port 
of Boston Authority under the Commonwealth, or whether he should be 
credited, in addition thereto, with the number of years of service since his 
original employment by the Boston Port Authority under the City of 
Boston. 

The Port of Boston Authority was created by St. 1945, c 619, to take 
over certain of the powers and duties of the Department of Public Works 
relating to the port of Boston and also to take over the powers and duties 
of the then existent Boston Port Authority. Section 9 of said chapter 619 
of the Acts of 1945 provides in part that: "Each of the employees of the 



P.D. 12. 65 

Boston Port Authority, as existing immediately prior to the efifcctive date 
of this act, shall continue to hold the office or position then held by him." 

In my opinion, the above-quoted language of section 9 discloses a 
legislative intent that all employees of the Boston Port Authority shall be 
considered as having a continuity of service in connection with their con- 
tinued employment by the newly created Port of Boston Authority. It is 
particularly to be noted that the Legislature did not provide that such em- 
ployees should be employed by the newly created Authority in positions 
comparable to those filled by them, but that each such employee should 
continue to hold his same position. 

In my opinion, therefore, an employee of the Port of Boston Authority 
should be given full credit for all service since his original employment by 
the Boston Port Authority in connection with the classification of such 
employee by the Division of Personnel and Standardization. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Commissioner of Public Safety — "Commissioner'' Defined — *S^ 1947, 

c. 668. 

April 4, 1949. 

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

Dear Sir: — In a recent communication you requested an interpreta- 
tion of the use of the word "commissioner" in St. 1947, c. 668. In reply I 
advise that the word "commissioner" as used in that act refers to the 
Commissioner of Public Safety. 

The whole tenor of this act is to make provision for supplying State and 
local police to the commandants of the various Federal reservations upon 
their request and to preserve the rights of such officers while on duty in 
such reservations. The act, as drawn, includes not only Fort Devens but 
all the Federal reservations in the Commonwealth of Massachusetts. 
The only person who has control over and who could supply a detail of 
State police at the request of such a Federal commandant is the Com- 
missioner of Public Safety. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



State Housing Board — Approval of Notes to be Issued by the Springfield 

Housing Authority. 

April 4, 1949. 

Frederick W. Roche, Esq.. Chairynan, State Housing Board. 

Dear Sir: — In response to a request for approval of a temporary issue 
of $1,100,000 notes of the Springfield Housing Authority, Walter H. 
Foster, Assistant Attorney General, on November 24, 1948, advised Mr. 
Bigelow, then chairman of the State Housing Board, that it would be 
unsafe and improper to sign a guarantee on behalf of the Commonwealth. 
The position of the department was based upon the following facts : First, 
the pendency of two suits of a similar nature attacking the validity of an 
amendment of the zoning ordinance of the city of Springfield permitting 
the construction of the project, one by Alden et al. and one by Hill et al. 



66 P.D. 12. 

The Alden suit sought to prevent the issue of building permits, and the 
Hill petition prayed for a writ of mandamus commanding the respondent 
building commissioner to revoke the building permits. Secondly, the 
fact that the Springfield Housing Authority filed a plea in abatement in 
each case and, while the suits were pending on defendants' appeal from a 
decision in the Superior Court, proceeded with the construction, the opinion 
stating that the suits may result in a finding that the construction is 
illegal, and that there was a strong possibility of an injunction restrain- 
ing further construction. I understand that the prior State Housing 
Board directed the continuance of the construction in the face of these 
pending suits and the adverse opinion of the Assistant Attorney General. 

I now understand that the available funds for continuing the construc- 
tion are exhausted, the project is incomplete, and the Authority is con- 
fronted with an immediate work stoppage unless new funds are made 
available. 

I have, at your request, further considered the matter at this time and 
I desire to make it clear that the State Housing Board, in directing the 
Springfield Housing Authority to continue the construction in spite of the 
adverse opinion of the Assistant Attorney General and the pending htiga- 
tion, is solely responsible for the present regrettable emergency. How- 
ever, in view of the fact that the court has not previously granted an in- 
junction, either because not asked for by the petitioners or denied by the 
court, coupled with the lapse of time and progress of construction since 
the suits were instituted, I feel that the danger of the court granting in- 
junctive relief or ordering the demolition of the construction has been 
greatly lessened and is now unlikely. This view of the probable outcome 
of the litigation, coupled with the unfikelihood of a court exercising its 
discretion in this case adversely to the acutely needed veterans' housing 
project and this administration's desire to prevent delay in providing homes 
for veterans, leads me to the conclusion that, while the possibiUty of loss 
by the Commonwealth will remain a factor pending the determination of 
the litigation and entail remote risk which will call for an exercise of dis- 
cretion on your part as chairman of the State Housing Board, this depart- 
ment will approve the issue of temporary notes when duly authorized and 
issued by the Authority. 

Very truly yours, 

Francis E. Kelly, Attorney General. 

Labor Unions — as Bargaining Agents — ''International Unions^' and 
Local Labor Organizations under St. 1946, c. 618, and G. L. {Ter. Ed.) 
c. 150A, § 5 (c). 

April 4, 1949. 

Hon. Francis M. Curran, Chairman, Labor Relations Commission. 

Dear Sir: — In your communication of recent date you request my 
opinion on the following: 

" (1) Do the provisions of St 1946, c. 618, §§ 1 and 2, apply to so-called 
'international unions' such as the Teamsters International, the Carpen- 
ters International and so forth, or to national organizations of affiliated 
unions such as the American Federation of Labor, the Congress of Indus- 
trial Organizations, District 50 of the United Mine Workers and so forth, 
these organizations having their headquarters outside the Commonwealth 



P.D. 12. 67 

and having no funds in Massachusetts, or do said sections apply only to 
local labor organizations having offices and operating as bargaining agents 
in Massachusetts and which may or may not be affiliated with some inter- 
national organization of the types above listed? 

" (2) If an international labor organization of the types listed in Ques- 
tion (1) files with the Labor Relations Commission a petition under G. L. 
c. 150A, § 5 (c), the State Labor Relations Law, for certification as bar- 
gaining agent, or a charge of unfair labor practices under section 4 of said 
chapter 150A, does the filing of such a petition or charge constitute 'oper- 
ating a labor union' within the meaning of St. 1946, c. 618, § 1? 

"(3) Do the provisions of St. 1946, c. 618, §§ 1 and 2, bar any labor 
organization, either local or international in character, which has not 
complied with said sections, from acting as bargaining agent or from fifing 
petitions or charges under the provisions of said chapter 150A?" 

It is to be noted at the outset that St. 1946, c. 618, by the force and 
effect of its section 5, is a penal statute and therefore must receive a strict 
construction. A statute is penal in character when its controlling purpose 
is to impose a punishment for violation of its provisions. Commonwealth 
V. Worcester & Nashua Railroad Companj/, 124 Mass. 561, 563. Cleave- 
land V. Norton, 6 Cush. 380, 383. "In putting a construction upon any 
statute, eVery part shall be regarded, and it shall be so expounded, if 
practicable, as to give some effect to every part of it." Commonwealth v. 
Alger, 7 Cush. 53, 89. Unless it would involve a construction "incon- 
sistent with the manifest intent of the law-making body or repugnant to 
the context of the same statute," the words and phrases used in a statute 
must be read and construed "according to the common and approved 
usage of the language." G. L. (Ter. Ed.) c. 4, § 6. While it is true that 
the objectives of a statute Hke that under consideration must be gathered 
from its express terms, by virtue, however, of G. L. (Ter. Ed.) c. 4, § 7, 
the words "person" and "whoever" must be construed to mean and 
include "corporations, societies, associations and partnerships." 

The operation of St. 1946, c. 618, is strictly local and is definitely cir- 
cumscribed by the territorial jurisdiction of the legislature which created 
it. Woodworth v. Spring, 4 Allen 321, 324; Commonwealth v. Green, 17 
Mass. 515. 

As to question (1) my opinion is that the provisions of St. 1946, c. 618, 
§§1 and 2, apply only to local labor organizations having local offices and 
operating as local bargaining agents within the Commonwealth and within 
the jurisdiction of its courts, and do not apply to international or national 
labor organizations having their headquarters outside the Commonwealth 
and having no funds within the Commonwealth. 

As to question (2) my opinion is in the negative for the reason that the 
express provisions of St. 1946, c. 618, §§1 and 2, which is a penal statute 
requiring strict construction, do not include within the sweep of their 
terms the matters relative to which you make inquiry in your question. 

As to question (3) my opinion is that the express terms of St. 1946, 
c. 618, §§ 1 and 2, do not provide for the barring of any labor organiza- 
tion, whatever its character, which has not complied with the terms of 
these sections from acting as bargaining agent or from filing petitions or 
charges under the provisions of G. L. (Ter. Ed.) c. 150A, as amended. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



68 P.D. 12. 

Department of Public Utilities — Poiver to Issue a Commission to take 
Depositions of Persons Residing without the Commonwealth. 

April 8, 1949. 
Hon. Thomas A. Flaherty, Chairman, Department of Public Utilities. 

Dear Sir : — You have requested my opinion as to whether the Com- 
mission of the Department of Public UtiHties has the authority to issue a 
commission to take depositions of persons or witnesses residing without 
the Commonwealth under G. L. (Ter. Ed.) c. 233, §§ 24 and 41. 

Section 24 of said chapter deals only with depositions within the Com- 
monwealth, and said section 41 authorizes the courts to issue a commission 
for depositions to be taken in another State or county by the court in which 
the cause is pending. 

By G. L. (Ter. Ed.) c. 25, § 5A, any commissioner of the department is 
authorized to summon witnesses, administer oaths and take testimony. 

It is an elementary principle of law that "the right of a party to have 
the evidence of witnesses taken upon commission and the power of the 
court to award a commission depends solely upon the statute." Frye v. 
Barker, 2 Pick. 65. 

It was decided in the case of In re Martinelli, 219 Mass. 58, that the 
Superior Court could not issue letters rogatory to obtain testimony to be 
used before the Industrial Accident Board. That decision was, of course, 
made before the enactment of St. 1915, c. 275, now found in G. L. (Ter. 
Ed.) c. 152, § 5, and is applicable only to workmen's compensation cases. 

However, as the powers conferred upon your commission do not au- 
thorize it to issue such commissions, I am of the opinion that it is not 
within the power of a court, even of general jurisdiction, to authorize the 
taking of depositions to obtain testimony to be used before your com- 
mission, as G. L. (Ter. Ed.) c. 233, § 41, requires that the cause be pending 
in the court. The Supreme Judicial Court cannot be said to have any 
authority over the proceedings of your department unless and until the 
particular case is brought before it for review under G. L. (Ter. Ed.) 
c. 25, § 5. 

Accordingly, I answer your inquiry in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 

Massachusetts Reformatory at Concord, — Boys as Inmates Prohibited. 

April 20, 1949. 
Mr. William A. MacCormick, Chairman, Youth Service Board. 

Dear Sir: — You have requested my opinion as to whether or not the 
Youth Service Board has authority, under the provisions of St. 1948, 
c. 310, (1) to place a boy committed to its care in the Massachusetts 
Reformatory at Concord or (2) to place a girl committed to its care in the 
Reformatory for Women at Framingham, such placement being for a 
particular purpose, either for rehabilitation, correction, custody or other 
care, provided that the board does not actually "transfer legal custody," 
but is "prepared to resume the care or supervision of the person so placed 
when the purpose of his or her placement has been accomplished." 



P.D. 12. 69 

It appears from factual information furnished me that on or about 
January 10, 1949, five boys were placed by the Youth Service Board in 
custody for safe keeping at the Massachusetts Reformatory for the reason 
that these boys were considered by the Youth Service Board as seriously 
refractory and in need of rehabilitation, correction and custody or other 
care. It further appears that these boys had been committed to the 
Trustees of the Massachusetts Training Schools, three of them to the 
Lyman School for Boys at Westborough and two of them to the Industrial 
School for Boys at Shirley. The three boys at the Lyman School were 
transferred to the Industrial School for Boys at Shirley. All of these boys 
were at the Industrial School for Boys at Shirley at the time St. 1948^ 
c. 310, the act creating the Youth Service Board, became fully effective 
on January 1, 1949. 

St. 1948, c. 310, an act relating to wayward and delinquent children 
and juvenile offenders, became effective as of May 13, 1948, under emer- 
gency preamble, for the purpose of the appointment of an advisory com- 
mittee on the service of youth. The statute became effective as of Septem- 
ber 1, 1948, for the purpose of the appointment of the Youth Service 
Board, created under its provisions, and the remainder of the statute 
became effective as of January 1, 1949. The statute in its terms as passed 
is an amendment of G. L. (Ter. Ed.) c. 120 and of a number of other 
statutes existing at the time of its passage. One important governing 
change in the statutory law by this legislation was the elimination of the 
Trustees of the Massachusetts Training Schools and the substituting in 
place thereof of the Youth Service Board. 

^ By G. L. (Ter. Ed.) c. 6, § 67 (2), as added by St. 1948, c. 310, § 2, the 
Youth Service Board succeeds to the rights, powers, duties and facilities 
of all other institutions, except the Massachusetts Reformatory, supported 
by the Commonwealth for the custody, care and training of delinquent or 
wayward children or juvenile offenders and of all children committed 
thereto. 

St. 1948, c. 310, § 4, amending G. L. (Ter. Ed.) c. 119, § 58, as amended, 
provides that if a child committed to the care of the Youth Service Board 
becomes unmanageable, the board may "transfer such child to that 
facility which in the opinion of said board, after study, will best serve the 
needs of the child but not for a longer period than until such child becomes 
twenty-one." Section 4 also provides that a court may commit a de- 
linquent child to the Youth Service Board, but it shall not commit such 
child to a jail or house of correction nor to any other institution. 

By G. L. (Ter. Ed.) c. 120, as amended by St. 1948, c. 310, § 22, the 
Youth Service Board is given the 

"... management, government and care of the Lyman school for 
boys at Westborough, the industrial school for girls at Lancaster, the" 
industrial school for boys at Shirley, and of all other institutions, except 
the Massachusetts Reformatory , supported by the commonwealth for the 
custody, diagnosis, care and training of delinquent or way^^ard children 
or habitual truants or habitual absentees or habitual school offenders or 
juvenile offenders, and of all children committed thereto. ..." 

G. L. (Ter. Ed.) c. 120, § 10 (a), as inserted by St. 1948, c. 310, § 22,. 
provides: 

"For the purpose of carrying out its duties, the board [youth service 
board] is authorized to make use of law enforcement, detention, super- 



70 P.D. 12. 

visory, penal, medical, educational, correctional, segregative, and other 
facilities, institutions and agencies, whether public or private, within the 
commonwealth, provided that the board shall not transfer custody of 
any person who was committed to it by a juvenile court and who is under 
{wenty-one to a -penal institution The board may enter into agreements 
with the appropriate private or public officials for separate care and spe- 
cial treatment in existing institutions of persons subject to the control of 
the board." 

', G. L. (Ter. Ed.) c. 125, § 23, provides: 

"The Massachusetts reformatory at Concord shall be the reformatory 
prison for the commonwealth in which all male persons under the age of 
thirty convicted of crime in the courts of the commonwealth or of the 
United States, and duly sentenced or removed thereto, shall be imprisoned 
and detained in accordance with the sentences or orders of said courts 
and the rules and regulations of said reformatory." 

G. L. (Ter. Ed.) c. 125, § 30, provides: 

"The reformatory for women at Framingham shall be the prison of the 
commonwealth where all females convicted of crime in the courts of the 
commonwealth or of the United States, and duly sentenced or removed 
thereto, shall be imprisoned and detained in accordance with the sen- 
tences or orders of said courts and the rules and regulations of said insti- 
tution. ..." 

"The word 'prison' ... is not limited to the state prison but includes 
all places of imprisonment for crime." Sturtevant v. Commonwealth, 158 
Mass. 598, 600. See G. L. (Ter. Ed.) c. 125, § 2. The discipline and 
management of the Reformatory for Women at Framingham "... are 
not only distinctive but entirely independent of other penal institutions. 
..." Moulton V. Comm.onwealth, 215 Mass. 525, 527. 

"It is a principle of general scope that a statute must be interpreted 
according to the intent of the makers, to be ascertained from its several 
parts and all its words construed by the ordinary and approved usage of 
the language, unless they have acquired a peculiar meaning in the law, 
considered in connection with the cause of its enactment, the subject 
matter to which it apphes, the pre-existing state of the common and 
statutory law, the mischief or imperfection to be remedied, and the main 
object to be accomplished, to the end that it be given an effect in harmony 
with common sense and sound reason." Duggan v. Bay State Street Rail- 
way, 230 Mass. 370, 374. 

The Massachusetts Reformatory at Concord is a penal institution. It 
is a prison. I am of opinion, therefore, that in the absence of express 
legislative sanction your board is not authorized to place or transfer boys 
committed to your care or otherwise under your control to the Massa- 
chusetts Reformatory at Concord for any purpose. The Massachusetts 
Reformatory for Women at Framingham is a penal institution. It is a 
prison. I am hkewise of the opinion that in the absence of express legisla- 
tive sanction your board is not authorized to place or transfer girls com- 
tnitted to your care or otherwise under your control to the Reformatory 
for Women at Framingham. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 71 



Commissioner of Correction — Tjack of Power to Transfer Recalcitrant Boys 
to Massachusetts Reformatory — St. 1948, c. 310. 

April 21, 1949. 
Hon. Elliott E. McDowell, Commissioner of Correction. 

Dear Sir: — You have requested my opinion as to whether or not- 
under the provisions of G. L. (Ter. Ed.) c. 120, as amended by St. 1948, 
c. 310, § 22, you are lawfully authorized to accept from the Industrial 
School for Boys at Shirley, upon the request of the Youth Service Board, 
five boys whom that board considered recalcitrant, for transfer to the' 
Massachusetts Reformatory until such time as the Department of Cor- 
rection considers them sufficiently corrected to be returned to Shirley 
School. 

It is my opinion, after a careful study of St. 1948, c. 310, that such 
transfer would not be within the legal sanctions of that legislative act. 

In further answer to your inquiry I call your attention to an opinion 
given by this office on April 20, 1949, to the Youth Service Board relating 
to the subject matter of your request for an opinion. 

Very truly yours, 

Francis E. Kelly, Attorney General. * 



Transportation of Dead Human Bodies in a Caisson or Jeep. 

April 26, 1949. 
Mr. William H. Rowan, Director of Registration. 

Dear Sir: — The Board of Registration in Embalming and Funeral 
Directing, through you, has asked my opinion as to whether or not a 
caisson, or in lieu thereof a jeep, may be used in military funerals, and 
you submit the following: 

"In the past the board has permitted the transportation of dead human, 
bodies only in a closed vehicle, and now the question arises as to whether 
or not the board has the right to prohibit the custom, in military funerals, 
of transporting the remains on a caisson or jeep." 

Under the provisions of G. L. (Ter. Ed.) c. 112, § 85, the board is au- 
thorized to adopt rules and regulations "consistent with law governing 
the care and disposition of dead human bodies and governing embalming 
and funeral directing." 

Rule numbered 48 of the rules adopted by the board, captioned "Cus- 
tody of Bodies," in its clause (d) reads as follows: 

"Transportation on or through a public street or highway shall be in 
a closed hearse or other vehicle used exclusively for the purpose of trans- 
porting dead human bodies or funeral equipment. Such vehicle shall be 
in charge of a duly registered funeral director, embalmer, or registered 
apprentice." 

Where it is reasonably clear that more than one interpretation may be 
drawn from the phraseology of a rule adopted by a public board possessing 
a limited measure of rule-making power delegated by the Legislature, that 



72 P.D. 12. 

interpretation should be adopted which in the hght of sound reason and 
common sense will produce the most beneficial results and which less inter- 
feres with long-established rights. A construction of a rule should not be 
adopted that would lead to an absurd consequence. See Commonwealth 
V. Kimball, 24 Pick. 366, 370. 

The rule in question does not in express terms prohibit the use of the 
caisson or the use of the jeep for the bearing of soldiers' bodies in military 
funerals. It would be difficult, if not unsound, to impute to the Legisla- 
ture the intent, in granting a limited measure of rule-making power to the 
board, to authorize the board by rule to aboHsh the time-honored custom 
of the use of the caisson in military funerals as a means of bearing the 
bodies of the soldier dead in flag-draped caskets to their final burial places. 
This use of the caisson has become deeply embedded in our traditions. 
Similar reasoning applies to the use of the jeep in military funerals for 
the same time-honored purpose. See Read v. Stewart, 129 Mass. 407, 410. 
In the interpretation of the rule consideration must be given to the inten- 
tion of the lawmakers, including the Legislature and the rule-making body 
authorized to make rules within limited spheres by the Legislature. How- 
ard V. Harris, 8 Allen 297, 298. Commonwealth v. Dracut, 8 Gray 455, 457. 

It is to be noted that in exceptional cases, because of epidemic or other- 
wise where there would be danger to pubfic health, the law of the Com- 
monwealth adequately deals with the subject matter of the transportation 
of "the body of any person who has died from any disease dangerous to 
the public health, except in accordance with such rules and regulations as 
may be made from time to time by the" Department of Public Health. 
G. L. (Ter. Ed.) c. Ill, § 107. 

It is obvious, of course, that where a jeep is used in a military funeral, 
in Heu of a caisson, the jeep should be one not used commercially or other- 
wise for the transportation of food stuffs nor for any purpose not in keeping 
with the dignity of the funeral occasion. 

. My opinion is that the rule here under consideration does not give your 
board "the right to prohibit the custom in military funerals of transport- 
ing the remains on a caisson or jeep." 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Chiropody — Physical Inspection of Schools outside the Commojiwealth. 

May 4, 1949. 
Mr. William H. J. Rowan, Director of Registration. 

Dear Sir: — The Board of Registration in Chiropody, through you, 
has asked my opinion on the following: Whether or not under the provi- 
sions of G. L. (Ter. Ed.) c. 112, § 16, as amended by St. 1948, c. 557, the 
Board of Registration in Chiropody must physically inspect chiropody 
universities, colleges and schools outside the Commonwealth of JNIassa- 
chusetts in order to comply with the statutes, and whether or not the 
board may utilize a national accrediting agency, such as the Council of 
Education of the National Association of Chiropodists, in the inspection 
of such institutions outside the Commonwealth. From further informa- 
tion which you furnish me it appears that from your investigation the 
Council of Education of the National Association of Chiropodists is recog- 



P.D. 12. 73 

nized throughout the country as an organization which can roHably inform 
the board as to the standards of institutions outside the Commonwealtk 
whose students present themselves in Massachusetts for examination by 
your board. 

In my opinion, the law does not require your board to physically inspect 
educational institutions in your field outside the Commonwealth, but the 
board may as a ministerial function, within reasonable bounds, utilize 
reliable sources of information to ascertain whether or not universities, 
colleges or schools located outside the Commonwealth comply in their ^ 
courses and standards with the minimum standards of the Board of Reg- 
istration in Chiropody in the Commonwealth of Massachusetts. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Bids — Suhstitution of Sub-Bidders under G. L. {Ter. Ed.) c. HO, §§ 44^ 

and J^I^C 

May 6, 1949. ■ 

Frederick W. Roche, Chairman, State Housing Board. 

Dear Sir: — At our recent conference you orally requested my opia-r 
ion regarding the meaning of G. L. (Ter. Ed.) c. 149, §§ 44 A and 44C, as 
amended, as applicable to the general construction contract "Dedham 
200-1." 

The statute specifically sets forth that every contract for the construOr 
tion of such buildings as are contemplated in "Dedham 200-1" shall bg 
awarded on the basis of competitive bids to the lowest responsible and 
ehgible bidder. 

The term "lowest responsible and ehgible bidder" as used in the stat- 
ute means "the bidder whose bid is the lowest of those bidders possessing 
the skill, ability and integrity necessary to the faithful performance of 
the work in case no substitution of sub-contractors is made in accordance 
with section forty-four C, or whose original or adjusted bid is the lowest 
of such bidders in the event of such substitution or substitutions." 

The statute reserves the right to the awarding authority, in this case 
the Dedham Housing Authority, to reject any or all bids, if it be in the 
public interest so to do. 

It is my opinion that it was the intention of the Legislature that con- 
tracts be awarded on the basis of the lowest net cost to the Commonwealth 
or any of its subdivisions. The statute establishes the method whereby; 
this result may be reached by providing that the awarding authority may 
substitute bids of sub-contractors. It further provides that after substir 
tution of sub-contractors the original contract price shall be adjusted at- 
the net difference. 

Using this formula, the awarding authority will, in each case, arrive q,fc 
the low net cost of construction. 

In the case of "Dedham 200-1", F. C. Dolan & Sons was properly 
selected by the Dedham Housing Authority as general contractor, as that 
company was the lowest bidder for the general contract and its total 
figures will mean a saving of more than seven thousand dollars to the 
veterans and taxpayers of Massachusetts. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



74 P.D. 12. 

Meals Tax — Recovery of Taxes Illegally Assessed — (7. L. {Ter. Ed.) c. 258. 

May 9, 1949. 

Committee on Ways and Means, House of Representatives. 

Gentlemen: — • I construe your recent communication as a request for 
an opinion as to the effect of House Bill No. 259 in the light of the existing 
law. 

This bill proposes to amend chapter 258 of the General Laws by adding 
the following new section : 

"Section 6. This chapter shall not apply to claims for the recovery 
of taxes paid to the commonwealth, whether illegally levied and collected 
or not." 

Between February, 1942, and May 2, 1945, private clubs were taxed 
by the Commissioner of Corporations and Taxation on meals served on 
their premises. On May 15, 1945, in the case of Comtnissioner v. Chilton 
Club, 318 Mass. 285, it was held that these clubs were private and not 
subject to the meals tax. (Subsequently the meals tax law was amended 
60 as to include private as well as other clubs.) 

These private clubs, therefore, brought suit against the Commonwealth 
for a refund of the taxes illegally assessed. This suit was brought under 
said chapter 258, which provides that, except as otherwise expressly pro- 
■eided, claims at law or in equity against the Commonwealth may be 
enforced by petition in the Superior Court and must be brought within 
three years after the cause of action accrues. 

In Chilton Club v. Commonwealth, 323 Mass. 543, the court held that 
because no definite or express method was granted by the meals taxing 
statute for relief or for an appeal from the Commissioner's action, rehef 
would be granted under chapter 258. The court said on page 546: 

"... nearly all, if not all, taxing statutes whereby the Commonwealth 
collects revenue have contained within themselves express provisions for 
the recovery back of taxes unlawfully exacted, so that in all those instances 
it is 'otherwise expressly provided.' The existence of these provisions is 
the strongest evidence that this Commonwealth recognizes the justice of 
claims against it of this character and is willing to satisfy them." 

The conclusion is, therefore, inescapable that if a taxing statute ex- 
pressly provides for an appeal or a recovery back of taxes unlawfully 
exacted, then no suit can be brought under said chapter 258. In such 
event the proposed amendment would be unnecessary. However, if a 
taxing statute is passed which neglects to provide relief in case of an 
illegal assessment, the proposed amendment would deprive the taxpayer 
of the one remedy which the Supreme Judicial Court held the sovereign 
government intended its citizens to have. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 75 



Compensation for Damage done hij Deer — Posting of Land as affecting — 
G. L. {Ter. Ed.) c. 131, § 83. 

May 9, 1949. 

Committee on Ways and Means, House of Representatives. 

Gentlemen : — I construe your recent communication as a request for 
an opinion as to the effect of Senate Bill No. 33 in the light of the existing 
law. 

This bill proposes to amend G. L. c. 131, § 83, as appearing in St. 1941, 
c. 599, § 2, by adding at the end thereof the following paragraph: 

"No such compensation or damage shall be paid to any owner or lessee 
of land if such owner or lessee has posted said land, other than an orchard 
or that portion immediately surrounding his house, barn or other out- 
buildings, to prevent the hunting of deer during the preceding year." 

Section 83 of chapter 131 provides for appraisal of, and payment for, 
any damage caused by the eating, browsing or trampling of a property 
owner's fruit or ornamental trees, vegetables, produce or crops by deer 
or moose. The proposed amendment purports to deny payment to any 
property owner or lessee who has posted his land during the preceding 
year to prevent deer hunting. This would penaHze those who post their 
land against trespassers and might very well amount to an unreasonable 
discrimination against such property owners. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Division of Employment Security — Right of Director to Employ a Co7P- 

fidential Secretary. 

May 10, 1949. 

Hon. Antonio England, Director, Division of Employment Security. 

Dear Sir : — You ask my opinion as to whether or not you may law- 
fully appoint in the Division of Employment Security an employee to 
serve directly under you as your confidential secretary in the performance 
of your official duties as Director of tlie Division of Employment Security, 
which confidential employee would not be subject to the provisions of 
G. L. (Ter. Ed.) c. 31 relating to civil service. In connection with your 
request for my opinion you submit the following facts in relation to the 
Division of Employment Security, hereinafter in this opinion referred to 
as the division: 

"The Division is one of the largest agencies of government in the Com-- 
monwealth. The Director of the Division has the duty of collecting 
contributions under the employment security law from nearly one hundred 
thousand employers throughout the State and has the further duty im- 
posed upon him of maintaining records of approximately one million, 
five hundred thousand employees having potential rights to benefits- 
under the system. To carry on the work of the Division requires at the • 
present time a staff of about two thousand, two hundred employees. ; 



76 P.D. 12. 

"In the performance of official duties required of him the Director of 
the Division is the agent of the Commonwealth to co-operate with the 
Federal Social Security Administration, the United States Department of 
Labor (Employment Service), the Veterans Administration (Servicemen's 
Readjustment Allowances), and the administrators of all the other States 
which have unemployment compensation laws similar to those admin- 
istered by the Director of the Division in this State. The Director has 
control and supervision of forty permanent offices and thirty-three itiner- 
ant points located in cities and towns throughout the Commonwealth." 

The Di\'ision of Employment Security is operated exclusively on Fed- 
eral grants of funds. No moneys are appropriated out of State revenues 
by the Legislature of the Commonwealth for the maintenance or for the 
carrying on of the work and functions of the division. The salary of the 
director of the division and the salaries of all the employees of the division 
are paid out of Federal grants of money. 

The division is the State agency for co-operation with the United States 
emplojTuent service, as provided for by an act of Congress, namely, 
chapter 49 of the Seventy-third Congress known as the Wagner-Peyser 
Act. The division may exercise powers as such agency as provided in 
this Federal act. See G. L. (Ter. Ed.)'c. 23, § 9L. 

There exists a strong interrelation between the activities of the division 
and the Federal employment security and other activities. The tie-up in 
this respect between Federal and State functions is a close one. Because 
of this, Massachusetts, as well as all the other States, is required to meet 
a code of "standards for a merit system of personnel administration" as 
a condition precedent to obtaining Federal grants of funds in order to 
carry on the work of the division. These standards of personnel adminis- 
tration are for the most part met in Massachusetts by the estabUshment 
of its State-wide civil service system as reflected in chapter 31 of its Gen- 
eral Laws. This complies in an impressive measure with the sound Federal 
purpose of insuring a uniform method of efficient administration in the 
employment security field in the forty-eight States and in the Territories. 

While the Federal requirements of standards for a merit system of per- 
sonnel administration are exphcitly and implicitly strict, it is provided, 
however, in the Federal concept, that certain positions are expressly ex- 
empted from the application of the standards of the civil service merit 
system, including the head of the State agency (the director) and one 
confidential secretary on the staff of the director to function closely with 
him in the performance of his duties of administration and his required 
co-operation with the entire Fedc^ral setup. 

This contemplated freedom of choice of a confidential secretary by the 
director is based upon the expectation and upon the sound and reasonable 
presumption that the director in selecting a confidential secretary will 
select one who in his judgment can best aid him in the performance of the 
manifold duties of his public trust. 

It is to be noted that while the division is a State agency, created by 
the Legislature as an administrative division in the Department of Labor 
and Industries, the division is exclusively under the official direction and 
control of its director. G. L. (Ter. Ed.) c. 23, § 91 (a). The division is 
placed by the Legislature in the Department of Labor and Industries 
solely to meet the requirements of the Constitution and for no other 
purpose. Mass. Const. Amend. LXVL 



P.D. 12. 77 

The material parts of G. L. (Ter. Ed.) c. 30, § 7, as amended, provide 
as follows: 

"Each officer, board and commission having supervision and control of 
an executive or administrative department . . . may appoint and remove 
a person to serve as a confidential secretary. Such appointment shall be 
in accordance with the provisions of sections forty-five to fifty, inclusive, 
of this chapter and shall be exempt from the provisions of chapter thirty- 
ons." 

In interpreting the foregoing statute as authorizing you to employ a 
confidential secretary who shall be exempt from the provisions of G. L. 
(Ter. Ed.) c. 31, I find no conflict with that result in the terms of G. L. 
(Ter. Ed.) c. 30, § 1. The words in the last-named section '^unless the 
context otherwise requires" are decisive as to the conclusion herein reached. 

From all of the foregoing it is my opinion that you may lawfully appoint 
a confidential secretary to serve under you, as you are director, in the 
Division of Employment Security. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Motor Vehicle Liability Insurance — Necessity of Certificate under G. L. 
{Ter. Ed.) c. 90, § lA, for Vehicles Used in Interstate Commerce. 

May 17, 1949. 
Mr. Rudolph F. King, Registrar of Motor Vehicles. 

Dear Sir: — I have your recent request for an opinion on the follow- 
ing question: 

"Shall the Registrar of Motor Vehicles require the certificates as pro- 
vided in G. h., c. 90, § lA, as amended, precedent to registration of ve- 
hicles for which the Interstate Commerce Commission has issued permits 
for interstate transportation of passengers and which are used solely in 
such interstate transportation?" 

This raises the question when and under what circumstances a State 
may legislate or regulate matters involving interstate commerce. The 
Constitution of the United States has reserved to the several States a 
pohce power to regulate and legislate for the public welfare, safety and 
morals. Adams Express Co. v. New York, 232 U. S. 14, at 31. Thus it 
has been uniformly held that "a State, in the interest of pubUc safety and 
for conserving its public ways, had the power to regulate the operation of 
motor vehicles thereon including those engaged in interstate commerce 
. . . provided that the regulations applied indiscriminately to both inter- 
state and intrastate commerce and that no unreasonable or unnecessary 
burden was thereby directly imposed upon interstate commerce." Apger 
V. New York Central Railroad, 310 Mass. 495, at 499. 

Where, however. Congress has taken over the complete regulation of 
such activities as are within its power to do, the authority of the State is 
superseded; but if Congress has not covered the whole field, then the State 
may regulate such activities or aspects as were not covered by Congress, 
so long as the State's action is not inconsistent with what Congress has 
done. If Congress has not legislated at all as to these matters, then the 



78 P.D. 12. 

State may take over unless the subject matter is one requiring uniformity 
of regulation throughout the nation. Adams Express Co. v. New York, 
232 U. S. 14; Michigan Commission v. Duke, 266 U. S. 570; Kelly v. 
Washington, 302 U. S. 1; California v. Thompson, 313 U. S. 109. 

Thus, in reference to interstate vehicles, a State could require the regis- 
tration of such vehicles and the licensing of their operators, Morris v. 
Duby, 274 U. S. 135; the securing of a certificate of public convenience 
and necessity, Bradley v. Public Utilities Commission of Ohio, 289 U. S. 
92; the payment of a tax for the maintenance of the public ways and for 
expenses in policing the ways, Eichholz v. Public Service Coynmission of 
Missouri, 306 U. S. 268; the payment of a reasonable charge for the use 
of the ways, Clark v. Paul Cray, Inc., 306 U. S. 583; the obtaining of ade- 
quate insurance for the payment of judgments recovered by persons other 
than passengers who were injured by the operation of the vehicles, Hicklin 
v. Coney, 290 U. S. 169; that the weight and size of the vehicle should not 
exceed certain limits, South Carolina State Highway Department v. Barnwell 
Brothers, Inc., 303 U. S. 177; and the regulation of the hours of employ- 
ment for operators of motor vehicles, H. P. Welch Co. v. New Hampshire, 
306 U. S. 79. 

But "regulations requiring the carrier to obtain liability insurance in 
certain amounts and in companies authorized to transact business in the 
States in which the carrier conducts his business have been prescribed by 
the commission (interstate commerce commission), and the Common- 
wealth cannot now require an interstate carrier who has been licensed by 
the interstate commerce commission to procure additional or different 
liability insurance from that prescribed by the commission." Apger v. 
New York Central Railroad, 310 Mass. 495, at 501. 

General Laws (Ter. Ed.) c. 90, § lA, provides that no motor vehicle 
shall be registered under sections 2 to 5, inclusive, unless the application 
for registration is accompanied by a certificate as defined in section 34A. 
The latter section defines "certificate" as the certificate of an insurance 
company stating that it has issued to the applicant for registration a 
motor vehicle liability policy. The same section defines "motor vehicle 
liability policy" as one which provides indemnity for or protection to the 
insured and any person responsible for the operation of the insured's 
motor vehicle, with his express or implied consent, against loss by reason 
of the liability to pay damages to others for bodily injuries, etc., arising 
out of the ownership, operation, maintenance, control or use upon the 
ways of the Commonwealth of such motor vehicle. 

If these requirements conflict with the type of coverage which the 
Interstate Commerce Commission requires, then your question must be 
answered in the negative. If, however, the insurance coverage required 
by the Interstate Commerce Commission is similar to that required by 
chapter 90, the applicant for registration would then be able to give you 
the certificate in question. But here again, if the securing of such cer- 
tificate would impose an extra substantial burden upon the interstate 
carrier, chapter 90 would have to yield. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 79 

Witness Fees — Increase in Amount. 

May 31, 1949. 
Hon. Anthony R. Doyle, Chairman, House Ways and Means Committee. 

Dear Sir: — I have your request regarding House Bill No. 1375, 
which proposes to amend section 29 of G. L. (Ter. Ed.) c. 262, by increas- 
ing witness fees for appearance before certain tribunals from one dollar 
and fifty cents to three dollars. 

For over fifty years such witness fees have remained at one dollar and 
fifty cents. Because of the vast economic changes which have taken place 
during that period of time, it would certainly be wise to make the increase. 
A person who is employed today usually earns much more than one dollar 
and fifty cents per day, yet he is compelled to obey a summons to appear 
before some tribunal and receives only one dollar and fifty cents plus his 
travel, which is only five cents a mile. 

Whatever fees are thus paid are included in the bill of costs, which in 
a civil proceeding is taxed against the unsuccessful party. In criminal 
proceedings, if the witness is summoned by the government, the latter has 
to pay these charges. 

Regardless, however, of who bears the burden of paying witness fees, 
it is greatly unfair to a person to be summoned before a tribunal and yet 
receive only one dollar and fifty cents per day for his attendance. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Department of Public Works — Engineering Expenses charged to Engineer- 
ing and Administration Appropriation. 

June 3, 1949. 
Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir: — You have asked my opinion as to whether or not engi- 
neering expenses incurred on projects under St. 1949, c. 306, may be 
charged to your administration and engineering appropriation as con- 
tained in St. 1949, c. 307, § 2, item 2900-02. 

In my opinion, engineering expenses so incurred are comprehended 
within the scope of the phrase: 

"The state department of pubhc works, hereinafter called the depart- 
ment, and the metropolitan district commission, hereinafter called the 
commission, are hereby authorized and directed to expend a sum not to 
exceed one hundred million dollars, in addition to any other appropriations 
for like purposes as may have heretofore or may hereafter be made, for projects 
for the laying out, construction, reconstruction and relocation of high- 
ways. . . ." (Italics ours.) 

which appears in St. 1949, c. 306, § 1, and, therefore, may lawfully be 
paid from such account. 

Authority is also found in section 7 of said chapter 307 which reads : 

"In addition to the payment of regular salaries, sums appropriated 
for personal services in the fiscal year nineteen hundred and forty-nine 



80 P.D. 12. 

shall be available for the payment of such other forms of compensation 
as may be due under existing statutes, or under the provisions of rules 
and regulations made in accordance with said statutes." 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Canned Dairy Cream — Subject to Laws Regulating milk under G. L. 
{Ter. Ed.) c. HA, § 5. 

June 9, 1949. 

Hon. George L. Barrus, Chairman, Milk Control Board. 

Dear Sir : — By letter dated June 6, 1949 you requested a formal 
opinion from me on the questions submitted by letter dated April 5, 1949. 
In reply to your letter of April 5, an informal opinion was rendered by 
H. William Radovsky, Assistant Attorney General, based on the facts set 
forth therein. Since the informal opinion was written, a hearing was held 
regarding this matter on June 1, 1949 and additional facts were in evi- 
dence. You requested in your communications an opinion as to whether 
or not a certain canned product sold as dairy cream is "milk" as defined 
in section 1; whether persons engaged in the business of selhng such 
product are "milk dealers" as defined in said section; and whether or not 
the persons so engaged in the business of selling the product are subject 
to the licensing provisions of G. L. (Ter. Ed.) c. 94A, § 5, and to the pay- 
ment of license fees and other payments required to be made by milk 
dealers under section 9. I answer these questions in the negative. 

The Dairy Dream Farm which produces this product, known as the 
"Dairy Dream Light Cream," is a New York corporation. The product 
is made and manufactured in the State of Wisconsin with the approval 
and supervision of the United States Department of Agriculture. It is 
not only homogenized and pasteurized but is sterilized under a special 
process and then is hermetically sealed in cans in the State of Wisconsin. 
The canning process is identical to that of condensed milk and evaporated 
milk, although the process of preparation of the contents is different. 
The canning process is under the supervision and inspection of the United 
States Department of Agriculture, and inspection is maintained because 
of the movement of this product in interstate commerce. 

The purpose and intent of the statute is to govern the inspection of 
local milk plants and the regulation of price fixing and rates. The sections 
of the statute referred to in your letter do not pertain to canned products 
such as those under consideration in the instant case. It is my opinion, 
therefore, that the regulation of this product as to purity and other neces- 
sary requirements is a function of the Department of Public Health, 
Division of Food and Drugs, and is not within the provisions of the statute 
referred to in your communications. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 81 

Term of Assista7it Commissioner of Mental Health. 

June 9, 1949. 
Clifton T. Perkins, M.D., Commissioner of Mental Health. 

Dear Sir: — You have requested an opinion concerning the term of 
appointment of an assistant commissioner. 

G. L. (Ter. Ed.) c. 19, § 2, as amended by St. 1946, c. 591, § 23, pro- 
vides in part: 

"... Upon the expiration of the term of office of an assistant commis- 
sioner, his successor shall be appointed for four years by the commissioner, 
with the approval of the governor and council. ..." 

Since Dr. Sleeper's original term expired on April 16, 1949, a new term 
may now be created for four years. I am, therefore, of the opinion that 
this new appointment will be for a four-year term commencing on what- 
ever date you make the appointment. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Bourne Highway — Designation — Traffic Markers — G. L. {Ter. Ed.) 

c. 85, § 2. 

June 9, 1949. 

Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir : — You have requested my opinion as to the legality of the 
designation of the newly constructed additional State road in the town of 
Bourne for one way traffic going west and the designation of the previously 
existing State highway in Bourne as a road for one way traffic going east. 

Because of the prior acquaintance of this office with the problems 
connected with the laying out of this way, I know that the reason for its 
undertaking was not only to promote the pubhc safety and convenience 
but to reheve the traffic situation on the State highway in Bourne, which 
was laid out many years ago and in the course of time became inadequate 
to handle the volume of traffic to and from Cape Cod particularly during 
the summer months. It is well known that the purpose of this new way 
was to supplement the existing way; that the layout, construction and 
reconstruction which was undertaken in the area had for its purpose the 
integration into one unit of the new and the old roads. 

With this background, in my opinion, it is very clear that the depart- 
ment has the legal right to make each road one way and to erect traffic 
direction markers carrjang out the plan. The erection of such traffic 
direction markers is entirely proper under G, L. (Ter. Ed.) c. 85, § 2, and 
vehicles operated on such ways are obhged to keep to the direction indi- 
cated under section 19 of the department's rules and regulations for driving 
on State highways, approved by the Governor and Council October 11, 
1933. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



82 P.D. 12. 

Librarians — Form, of Application — Method of Appeal. 

June 20, 1949. 
Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — In a recent communication you seek my opinion relative 
to certain provisions of G. L. (Ter. Ed.) c. 78, as amended by St. 1948, 
c. 320, providing for the certification of librarians by the Board of Free 
Public Library Commissioners, which board administers the Division of 
Public Libraries, a division in the Department of Education. 

With reference to your request you submit in substance the following 
questions : 

(a) Whether St. 1948, c. 320, § 31, refers to the holding of a position in 
a library in Massachusetts only, or a position in a library anywhere out- 
side of Massachusetts; 

(h) Whether the application form may legally request information 
concerning the place and date of birth of an applicant; 

(0) Whether the application form may legally request information 
concerning the following: 

(1) Of one who applies for a certification under St. 1948, c. 320, § 31, 
information as to the education of the applicant, both general education 
and library education ; 

(2) Of one who applies for a certification under St. 1948, c. 320, § 31, 
information as to past library employment with dates and positions held ; 

(3) Of one who applies for a certification under St. 1948, c. 320, § 31, 
information as to library position on the date of application, the duties 
and responsibilities attendant upon said position, verified by the signature 
of the chief librarian; 

(d) What are the prescribed methods of notice of the appeal provided 
for in section 25 of the Certification Law, as well as under the General 
Laws of the Commonwealth? 

As to your first question (a), relative to St. 1948, c. 320, § 31, my answer 
is that it was clearly the legislative intent that any person, regardless of 
origin or place of employment and who was employed in a position as 
defined in St. 1948, c. 320, § 31, on August 14, 1948, may be certified. It 
was not the legislative intent to confine the benefits of this section to 
librarians practicing in this Commonwealth on August 14, 1948. 

I answer your second question (b) in the affirmative. 

My answer to each part of your third question (c) is in the affirmative. 

As to your fourth question (d) my answer is that there are no prescribed 
methods of notice of appeal provided for in St. 1948, c. 320, § 25, or in 
any other statute. The board is authorized under section 25 to make 
rules and regulations and to adopt methods for notices of appeal; to 
provide hearings for applicants to whom certification has been denied, 
and for those whose certification has been suspended or revoked. A 
reasonable and sufficient time should be allowed following notice denying 
certification so that the apphcant may have reasonable opportunity to give 
notice of his appeal. It is also important that the rules regarding appeal 
shall be consistent with law and uniform for all applicants, and that a fair 
and impartial board hear appeals by any applicant requesting a hearing. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 83 

Reformatory for Women — Day Work — ^^ Domestic Service." 

June 20, 1949. 
Hon. Elliott E. McDowell, Commissioner of Correction. 

Dear Sir: — You have requested my opinion as to whether or not the 
emplojTnont of inmates of the Reformatory for Women at Framingham 
"in domestic service in homes near the Reformatory" is lawful under the 
following circumstances. As stated in your communication, "the prisoner 
is permitted on one or two days a week to be brought to the employer's 
home and returned the same day to the Reformatory for Women by the 
employer, upon completion of the work. . . . This type of employment 
has been known as 'day work.'" 

The statute permitting the employment of inmates of the Reformatory 
for Women in domestic service in homes outside the institution is G. L. 
(Ter. Ed.) c. 127, § 85. So much of this statute as is material to the 
question you present reads as follows: 

"The commissioner may, with the consent of a woman serving a sen- 
tence in the reformatory for women . . . contract to have her employed 
in domestic service for such term, not exceeaing her term of imprisonment, 
and upon such conditions, as he considers proper with reference to her 
welfare and reformation. If in his opinion her conduct at any time during 
the term of the contract is not good, he may order her to return to the 
prison from which she was taken." 

If an inmate of the Reformatory for Women who has been plafeed 
under contract for domestic service, with her consent, outside the institu- 
tion, voluntarily leaves the household where she has been placed and 
refuses to obey the order of the Commissioner to return to prison, that 
situation is governed by G. L. (Ter. Ed.) c. 127, § 86, and she may be 
prosecuted as for an escape. 

The Reformatory for Women at Framingham is a penal institution, 
although the discipline and management to be carried out there "are 
not only distinctive but entirely independent of other penal institutions. 
. . ." Moulton V. Commonwealth, 215 Mass. 525, 527. Under the pro- 
visions of G. L. (Ter. Ed.) c. 127, §§ 85 and 86, the authority given to 
the Commissioner as to the employment of an inmate of the Reformatory 
for Women outside the institution is confined to contracting, with the 
consent of the inmate, to employment in domestic service. No other 
character of employment outside the institution, however desirable it 
may be for the purposes of rehabilitation, is permitted by the statutes 
under consideration. 

The word "domestic" as used in the statute is not a technical word of 
art in the law and it must be construed according to the common and 
approved usage of the language. G. L. (Ter. Ed.) c. 4, § 6 (3). "In 
ordinary speech, sanctioned as well by the dictionaries, the word ' domestic ' 
means belonging to the home or household." Commonwealth v. Flynn, 
285 Mass. 136, 139. 

The word "service" used in the context of section 85 in conjunction 
with the word "domestic" must be construed also in the ordinary usage 
of the language. While it is a word of broad scope, in the present instance 
it must be construed with relation to the context in which it appears in 



84 P.D. 12. 

the statute and in the hght of the modifying and Hmiting word "domestic." 
"Domestic service," therefore, means, as it is used in the statute, employ- 
ment in the home or household. It means no other kind or character of 
employment. 

The principal statutory provision under consideration in this opinion, 
G. L. (Ter. Ed.) c. 127, § 85, was passed in its original form by St. 1879, 
c. 229, § 3. No essential legislative change has taken place in the rehabili- 
tation purposes of the statute or in the authority or discretion of public 
officers charged with the duty of acting under it since its original passage 
seventy years ago. The original statute, cited above, provided for the 
placing of the woman inmate contracted for, with her consent in domestic 
service for "a term of time, not exceeding the term of imprisonment" as 
the then prison commissioners approved. The present statute provides, — 
"to have her employed in domestic service for such term not exceeding 
her time of imprisonment." Both the earHer and the present statute 
clearly have as their purpose the welfare and reformation of the woman 
inmate. I am of opinion that since the first legislative enactment on the 
indenturing of inmates for domestic service, the legislative intent has 
always been and is now as the statute stands to authorize contracts only 
for substantial periods of time during good behavior. By this means the 
inmate would be given the opportunity to enjoy for uninterrupted periods 
of time the wholesome surroundings and good influences of normal home 
Ufe as a most important link in the process of her rehabilitation. The 
statutes have never authorized, and the present statute does not authorize, 
the so-called system of day-work indenturing where the inmate placed in 
a home is obliged to return to the institution after each day's work in 
domestic service. 

The principal statute here concerned was passed by the Legislature 
seventy years ago and at the time of its passage was an epochal advance 
along constructive humanitarian lines. However, since its original enact- 
ment in 1879 the statute has remained unchanged in its essential terms 
and expressed purposes. It is common knowledge that in the meantime 
great advances and progress have been made in the development and 
growth of penological science and practice. Legislation has not kept pace 
with that development and growth. The rehabilitation of women inmates 
in institutions such as the Reformatory for Women at Framingham is a 
worthy and humanitarian public purpose. 

In my opinion, there is nothing by implication or otherwise to be found 
in the statute, G. L. (Ter. Ed.) c. 127, § 85, authorizing the so-called 
day-work system. It is not permitted by the present statute. 

I intend to recommend to the Legislature in my annual report that it 
consider amending and liberalizing changes in the existing law, to the 
end that it may be made more completely adaptable to modern enlight- 
ened views in the matter of the rehabilitation of women inmates in re- 
formatory institutions. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 85 

Certificate of Condition of Foreign Corporation as a Public Record. 

June 27, 1949. 
Hon. Edward J. Cronin, Secretary of the Commonwealth. 

Dear Sir: — You ask my opinion as to whether or not certificates of 
condition filed by corporations other than domestic corporations are pubhc 
records open to the inspection and use of the pubhc. You further inform 
me that the corporation concerned is and has been for a long time doing 
business within the Commonwealth with a place of business therein. 

Under the provisions of G. L. (Ter. Ed.) c. 181, § 12, it is provided, in 
substance, that every foreign corporation shall annually file in the office 
of the State Secretary, upon payment of the statutory fee provided for 
such filing, a certificate signed and sworn to by certain of its officers 
showing the amount of its authorized capital stock and its assets and 
liabilities as of a date not more than ninety days prior to its annual meet- 
ing. The statute further provides that such certificate of condition shall 
be in such form as is required by law of domestic business corporations. 

The provisions of G. L. (Ter. Ed.) c. 156, § 47, so far as material and 
necessary to this opinion, are as follows: 

"Every corporation shall annually, within thirty days after the date 
fixed in its by-laws for its annual meeting, or within thirty days after the 
final adjournment of said meeting, but not more than three months after 
the date so fixed for said meeting, prepare and submit to the commissioner 
[of corporations] a report of condition which shall be signed and sworn to 
by its president, treasurer and a majority of its directors stating — 

"A statement of the assets and liabilities of the corporation as of the 
date of the end of its last fiscal year, to be made in such form as the com- 
missioner shall prescribe." 

It is provided by G. L. (Ter. Ed.) c. 156, § 48, as follows: 

"The commissioner shall examine such report, and if he finds that it 
conforms to the requirements of this chapter, he shall endorce his approval 
thereon; and upon the payment of the fee required by section fifty-five, 
it shall be filed in the office of the state secretary, who shall receive and 
preserve it in book form convenient for reference and open to public 
inspection." 

The Supreme Court of the Commonwealth has said in the case of Etnpire 
Laboratories Inc. v. Golden Distributing Corporation et al., 266 Mass. 418, 
422, that the purpose of the statute (G. L. c. 156, § 47) "requiring an 
annual return or statement of the condition of the corporation is to give 
the public information of the character and condition of the corporation, 
so that those dealing with it may know the facts and its financial condi- 
tion." See also H. B. Humphrey Company v. Pollack Poller Runner Sled 
Co. Inc. et al., 278 Mass. 350: Thayer v. New England Lithographic Steam 
Printing Co., 108 Mass. 523, 528. 

The original act requiring foreign corporations to file annually a certifi- 
cate of condition as is required of domestic corporations is St. 1891, c. 341, 
which was entitled "An Act concerning foreign corporations having a 



86 P.D. 12. 

usual place of business in this Commonwealth." Since the passage of 
this statute it has been the uninterrupted practice for the Commissioner 
of Corporations, after he has endorsed his approval on a certificate of 
condition filed by a foreign corporation doing business in this Common- 
wealth, to forward it to the office of the State Secretary, who thereupon 
preserves it "in book form convenient for reference and open to public 
inspection." G. L. (Ter. Ed.) c. 156, § 48. This has been the unbroken 
practice since the statute became effective in 1891. 

It is my opinion that the several statutory provisions relative to the 
subject matter should be read together; that the certificate of condition 
filed by a foreign corporation doing business in Massachusetts stands on 
the same footing as a domestic corporation; that it was the legislative 
purpose to treat it so; and that its annual certificate of condition, filed as 
aforesaid, is a public record open to public inspection. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Department of Public Works — Use of Funds for Unforeseen Contingencies 

under St. 1949, c. 3. 

June 30, 1949. 

Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir: — You have asked my opinion as to the availability of 
balances of funds appropriated by St. 1949, c. 3, to provide for unforeseen 
contingencies which may arise after June 30, 1949 on contracts executed 
prior to that date. 

Chapter 3 of the Acts of 1949, which became effective February 14, 
1949, provides in section 1 that the Department of Public Works is au- 
thorized and directed "to maintain, construct, reconstruct and repair 
state highways and town and county ways and bridges thereon in Berk- 
shire, Franklin, Hampshire and Hampden counties." By section 2, the 
department is authorized and directed "to remove fallen trees, debris and 
other obstructions in rivers and streams and to restore or repair dams or 
other structures in rivers or streams, the destruction or injury to which 
may have increased the danger of floods therein, and for the purpose of 
protection against floods, to alter the course or deepen or widen the channel 
of any river or stream, to conduct any surface or ground water into the 
same, to place riprap and build retaining walls to support any part of the 
banks thereof." 

To finance the cost of the work provided for in section 1, the sum of 
SI, 100,000 was appropriated from the Highway Fund by section 3, item A, 
of the act; and the sum of $900,000 was appropriated from the General 
Fund by item B of the same section to finance the cost of the work pro- 
vided for in section 2. 

By section 7, the authority of the department to enter into contracts 
with cities and towns and to make "cost plus" contracts for the purpose 
of carrying out the provisions of the act expired on April 30, 1949, and the 
authority to enter into other contracts, to hire equipment and to perform 
work with its own forces expires on June 30, 1949. 

I am informed that, after receiving competitive bids, the department 
has already entered into thirteen separate contracts for the repair and 
reconstruction of bridges. You state that "allotments" have been set 



P.D. 12. 87 

up for these contracts and "encumbrances" made, presumably your refer- 
ence to "allotments" being to the provisions of G. L. (Ter. Ed.) c. 29, 
§ 9B and § 27, as amended, although it would appear that the allotments 
therein referred to are specifically required to be made for stated periods 
and not for particular contracts. However, you state that no allowance 
has been made to take care of unforeseen emergencies or additional work 
which might be found necessary in connection with these contracts, al- 
though there is a small balance in the funds made available by St. 1949, 
c. 3. 

In my opinion, this balance, under G. L. (Ter. Ed.) c. 29, § 14, as 
amended, is available for payment for additional work performed in 
accordance with the aforementioned contracts. 

The appropriation made in St. 1949, c. 3, as appears from the language 
of the act itself, was for emergency work on highways, rivers and streams 
to repair extensive damage caused by floods in western Massachusetts. 
The extraordinary character of the work to be done under this appropria- 
tion is emphasized by the provisions of the act which, in section 4, au- 
thorizes the department to make "cost plus contracts" without complying 
with G. L. (Ter. Ed.) c. 29, § 8A, "any provision of general or special law 
to the contrary notwithstanding"; in section 5, authorizes the depart- 
ment to employ persons without compliance with G. L. (Ter. Ed.) c. 31, 
§ 15; and, in section 6, authorizes the governor to suspend the forty- 
eight hour law (G. L. [Ter. Ed.] c. 149, § 30, as amended by St. 1947, 
c. 680, § 1) for contracts under this act. 

It is clear, therefore, that the appropriation made in St. 1949, c. 3, was, 
in the language of G. L. (Ter. Ed.) c. 29, § 14, "an appropriation for" a 
"purpose other than ordinary maintenance." Section 14 further provides 
that such an appropriation "shall not be available for more than two 
years after the effective date of the appropriation, except that payments 
to fulfill contracts and other obligations entered into within the said two 
years may be made thereafter." 

Very truly yours, 

Francis E. Kelly, Attorney General. 



88 P.D. 12. 



INDEX TO OPINIONS 



PAGE 

Airport property, authority of Department of Public Works to lay tracks on . 25 

Annuitants, police; G. L. (Ter. Ed.) c. 32, § 89; benefits 44 

Bids; substitution of sub-bidders under G. L. (Ter. Ed.) c. 149, §§ 44A and 

44C 73 

Bond retirement date ; computation of time 48 

Boston Police Department: 

Jurisdiction over State-controlled property; jurisdiction over Metropolitan 

Transit Authority property 45 

Sick leave; vacations; civil service 28 

Boston Transit Department, reimbursement of; Department of Public Works 24 

Bourne Highway; designation; traffic markers; G. L. (Ter. Ed.) c. 85, § 2 . 81 

Bridge repairs ; municipal loans; public buildings 27 

Bristol County Tuberculosis Hospital; power of trustees to sell property . 21 

By-laws; do not restrict the Commonwealth 29 

Caisson or jeep, transportation of dead human bodies in 71 

Capital stock; defined under G. L. (Ter. Ed.) c. 175, § 66 . . . .14 

Certificate of condition of foreign corporation as a public record ... 85 

Cesspool ; common carrier not one who carries waste material from . . 30 

Chiropody; physical inspection of schools outside the Commonwealth . . 72 
Civil service: 

State Housing Board employees 12 

Vacations of police and firemen 15 

Civil Service Law: 

Affecting Boston Police Department 28 

St. 1948, c. 311; specific appropriations for salary increases . ... 47 

Common carrier ; defined; not one who carries waste material from a cesspool 30 
Compensation for damage done by deer; posting of land as affecting; G. L, 

(Ter. Ed.) c. 131, § S3 75 

Conservation officers, deputy: 

Authority 57 

Serving without compensation 49 

Correction, Commissioner of: 

Lack of power to transfer recalcitrant boys to Massachusetts Reformatory; 

St. 1948, c. 310 71 

Limitation of power of removal 44 

Cream, canned dairy; subject to laws regulating milk under G. L. (Ter. Ed.) 

c. 94A, § 5 . . . . . SO 

Dead human bodies, transportation of, in a caisson or jeep . . .71 

Deer, compensation for damage done by; posting of land as aft'ecting . . 75 
Dental Examiners, Board of; proceeding'' as public records . . . .13 

Dentists; use of the prefix "Dr." not forbidden 54 

Depositions; power of Department of Public Utilities to issue a commission 

to take depositions of persons residing without the Commonwealth . 6S 

Dog racing; suspension by affidavit; competition with state or county fair . 21 

"Domestic service"; defined 83 

Drug manufacturers and suppliers; licenses; St. 1948, c. 539 .... 26 
Embalming and Funeral Directing, Board of Kegistration in; control over 

military funerals 71 

Employment Security, Division of; right of director to employ a confidential 

secretary 75 



P.D. 12. 89 

PAGE 

Engineering expenses charged to engineering and administration appropria- 
tion of Department of Public Works 79 

Fees; junk collectors; secondhand dealers; payment to Police Commis- 
sioner's clerk 26 

Fire departments, chiefs of; authority to issue fire permits; forest wardens . 42 

Firemen and police; vacations 15 

Fisheries and Game, Director of the Division of; power to issue licenses . 54 

Foreign corporation ; certificate of condition as a public record ... 85 

Forest wardens ; authority to issue fire permits 42 

Fuel oil measurement; fraction of a gallon; G. L. (Ter. Ed.) c. 94, § 177 . 62 

Funds, allotment of; temporary certificates 41 

Insurance : acquisition of capital stock by life insurance company ... 14 
Interstate commerce; relation to local motor vehicle insurance laws . . 77 
Junk collectors; secondhand dealers; fees; payment to Police Commis- 
sioner's clerk 26 

Justice of the peace; fees; process 31 

Labor unions; as bargaining agents; "international unions" and local labor 
organizations under St. 1946, c. 618, and G. L, (Ter. Ed.) c. 150A, 

§ 5 (c) ...._. ^ 66 

Law Enforcement, Director of Division of: 
Authority to employ deputy conservation officers to serve without com- 
pensation 49 

Lack of power to issue licenses 54 

Librarians; form of application; method of appeal 82 

Licenses; hunting, trapping and fishing; issuance 54 

Life insurance policies ; cash surrender value; modification; reserve . . 58 
Logan International Airport; authority of Department of Public Works to 

take land 28 

Massachusetts Aeronautics Commission; State Airport Management Board; 

division of duties 33 

Massachusetts Public Building Commission; approval of "projects"; G. L. 

(Ter. Ed.) c. 92A 61 

Massachusetts Reformatory at Concord; boys as iimiates prohibited . . 68 

Masters in chancery; as State officers 51 

Meals tax: 

Abatement 19 

Recovery of taxes illegally assessed; G. L. (Ter. Ed.) c. 258 ... 74 

Medical examiners; as State officers 46 

Mental Health, Assistant Commissioner of; term of 81 

Metropohtau District Water Supply Commission employees; eligibility to 

join retirement system 50 

Metropolitan Transit Authority property; jurisdiction of Boston Police 

Department over 45 

Motor vehicle liability insurance; necessity of certificate under G. L. (Ter. 

Ed.) c. 90, § lA, for vehicles used in interstate commerce ... 77 

Municipal loans; bridge repairs 27 

National Guard; expenditure of unit funds for automobile liability insurance 57 

Pawnbrokers ; hcense fees 32 

Pension; length of service construed 56 

Plumbers, State Examiners of; duties; rules 16 

Police and firemen; vacations 15 

Port of Boston Authority; employee's term of service for retirement to in- 
clude service under Boston Port Authority 64 

Process; issuance by justice of the peace 31 

Public administrators; as State officers 46 

Pubhc Safety, Commissioner of; "commissioner" defined; St. 1947, c. 668 . 65 
Public UtiUties, Department of; power to issue a commission to take deposi- 
tions of persons residing without the Commonwealth .... 68 



90 P.D. 12. 

PAGE 

Public Works, Department of: 

Authority to lay tracks on airport property 25 

Authority to take land for Logan International Airport .... 28 
Engineering expenses charged to engineering and administration appro- 
priation 79 

Reimbursement of Boston Transit Department 24 

Restriction by local by-laws 29 

Use of funds for unforeseen contingencies under St. 1949, c. 3 . 86 

Recess committee; appointment by only one house of the Legislature . 20 

Recodification, commissioners on; salary 23 

Reformatory for Women at Framingham: 

Day work; " domestic service " 83 

Girls as inmates prohibited 68 

Retirement : 

Maintenance considered as compensation for veteran's retirement . . 51 

Veteran; defined 64 

Defined under G. L. (Ter. Ed.) c. 32, § 58 63 

Retirement system; eligibility of MetropoUtan District Water Supply Com- 
mission employees to join 50 

Salary increases; lack of specific appropriations .47 

Secondhand dealers; junk collectors; fees; payment to Police Commis- 
sioner's clerk ....'. 26 

School; defined under St. 1948 c. 645 ......... 25 

School Building Assistance Commission; extent of authority .... 25 

Sick leave; vacations; Boston PoHce Department 28 

Springfield Housing Authority; approval of issuance of notes .... 65 
State Airport Management Board; Massachusetts Aeronautics Conmaission; 

division of duties 33 

State Housing Board : 

Approval of notes to be issued by the Springfield Housing Authority . . 65 

Civil service status of employees 12 

State officers: 

Defined; pubhc administrators and medical examiners 46 

Masters in chancery 51 

State Secretary, First Deputy; appointment; "fails of reappointment" 60 

Taxation; abatement of meals tax excise 19 

Teachers; retroactive retirement benefits 50 

Television installation; licensing of persons so engaged unnecessary . . 22 

Vacations; sick leave; Boston Police Department 28 

Veteran : 

Defined; retirement 64 

Defined under G. L. (Ter. Ed.) c. 32, § 58; retirement 63 

Retirement; maintenance considered as compensation 51 

Veterans' benefits; repayment by the Commonwealth to cities and towns for 

hospital care, pubhc or private . . .43 

Veteran's retirement; computation of time, including service as a city coun- 

ciUor; G. L. (Ter. Ed.) c. 32, § 56 57 

Witness fees; increase in amount 79 



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