Public Document No. 12
Ci)e Commontoealti) o( ^assatbuettts
REPORT
ATTORNEY GENERAL
Year ending June 30, 1950
Public Document No. 12
Cl)e CommonUiealtt) oC ^a00aci)U0ett0
REPORT
ATTORNEY GENERAL
Year ending June 30, 1950
Publication- of this Document Approved by George G. Cronix, State Pcrchasinq Agext
900-8-'51-905270. Ll! *i 3^ 'j
STA1E IBIMr IF IMSSNMnS
OCT 25 1951
STATE HOUK. eOSTOH
C!)e Commontuealtf) of Qia00ac|bu0ett0
Department of the Attorney General,
Boston, January 2, 1951.
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, 1950.
Respectfully submitted,
FRANCIS E. KELLY,
Attorneij General.
Cf)c Commontoealtt) of 09a00acl)U0ett0
DEPARTMENT OF THE ATTORNEY GENERAL
State House
Attorney General
FRANCIS E. KELLY
Assistants
Timothy J. Murphy
Fraxcis J. Roche -
Henry P. Fielding
Garrett J. Barry
Charles Alpef.t-
BeRNAF.D J. KlLLIOX ^
William S. Kixxey
H. William Radovsky^
Edward P. Healy
David Miller
81DXEY R. Neustadt ■*
David H. Stuart -
JoHX J. Bresxahax
James J. Bacigalupo
Charles R. Desmarais^
James G. Wolff
Lexahax O'Conxell
Joseph S. Vahey
Michael H. Selzo*
Charles H. Walters^
William J. O'Neill «
Eva G. Silva
Jeaxxette C. Sullivax
Lawrexce E. Ryax^
Assistant Attorneys General assigiied to State Housing Board
Thomas C. Dolan Maurice M. Goldmax
Assistaiit Attorneys General assigned to Division of Employment Security
Albert M. Cicchetti Edward J. Naxtoski
Assistant Attorneys General assigned to Veterans' Division
David N. Roach Erxest Brbxner
Secretary to the Attorney General
James T. Burke
Chifif Clerk to the Attorney General
Harold J. Welch
List Clerk to the Attorney General
James J. Kelleher
Director of Division of Collections
W. Forbes Robertson
' Specially assigned to N. Y., N. H. & H. R.R. case.
^ Specially assigned to New England Tel. & Tel. Co. case.
' On leave of absence.
* Resigned May 15, 1950.
' Resigned June 15, 1950.
• Appointed Apr. 21, 1950.
' Appointed Feb. 16, 19.50.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Period from July 1, 1949, to June 30, 1950
A ppropriations.
Attorney General's Salary ......
Administration, Personal Services and Expenses
Claims, Damages by State Owned Cars ....
Small Claims ........
National Association of Attorneys General
Recovery of Unclaimed Bank Deposits ....
New York, New Haven and Hartford Railroad Investigation
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
Recovery of Unclaimed Bank Deposits ....
New York, New Haven and Hartford Railroad Investigation
Veterans' Legal Assistance ......
Total
$12,000 00
237,250 00
15,000 00
10,500 00
1,000 00
14,562 14
15,000 00
20,000 00
$325,312 14
$12,000 00
229,884 61
14,996 34
10,500 00
1,000 00
6,151 22
10,869 44
14,973 73
$300,375 34
Financial statement verified (under requirements of c. 7, § 19, of the General Laws),
November 8, 1950.
Approved for publishing.
By JOSEPH A. PRENNEY,
For the Comptroller.
FRED A. MONCEWICZ,
Comptroller.
Cf)e Commontoealti) of Q^a$$aci)U0ctt0
Department of the Attorney General,
Boston, January 2, 1951.
To the Honorable Senate and House of Representatives.
Pursuant to the provisions of section 11 of chapter 12 of the General
Laws (Tercentenary Edition), as amended, I herewith submit my report.
The cases requiring the attention of this Department during the fiscal
year ending June 30, 1950. totahng 10,813, are tabulated as follows:
Extradition and interstate rendition ........ 120
Land Court petitions ........... 132
Land damage cases arising from the taking of land :
Department of Public Works ........ 224
Metropolitan District Commission ....... 33
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 5,267
Estates involving application of funds given to public charities . . . 926
Settlement cases for support of persons in state hospitals .... 40
Pardons :
Investigations and recommendations in accordance with G. L. (Ter. Ed.)
c. 127, § 1.52, as amended 79
Workmen's compensation cases, first reports ....... 1,839
Cases in behalf of Division of Employment Security ..... 1,321
Cases in behalf of Veterans' Division . . . . . . . .831
Criminal Prosecutions.
For the administration of the criminal laws of the Commonwealth,
including prosecutions in court, the State has been divided into several
districts. In each district there is a district attorney elected by the people
of his respective district. To be eligible for office a district attorney must
be a resident of the district in which he is elected. Each district attorney
possesses the appointing power of the assistant district attorneys who
serve under him, with their tenure of office at his pleasure.
As Attorney General I have adopted a carefully thought-out policy of
noninterference with the work of the several district attorneys. This I
firmly believe to be a policy grounded in wisdom. It is my purpose as
chief law enforcement officer of the Commonwealth to follow that policy
unless extraordinary occasions present themselves. The good feeling
and the co-operation that have been established by the office of the Attor-
ney General and the offices of the several district attorneys, since I became
Attorney General, have worked satisfactorily and promise much good
for the future. I have found the district attorneys cordially co-operative
8 P.D. 12.
in all my contacts with them, and firmly believe that the policies which I
have established with respect to criminal prosecutions will enure to the
benefit of the Commonwealth. However, occasions may arise where the
ramifications of criminal litigation might extend into m.ore than one dis-
trict. That situation might require a closer active participation and
co-operation between the Attorney General as the chief law enforcement
officer of the Commonwealth and the several district attorneys whose
districts might be concerned. Under such circumstances it would be
necessarily the plain duty of the Attorney General to act with the district
attorneys with all the forces at his command. But in the ordinary and
usual conduct of the criminal business of the State, it is my purpose to
leave that responsibility in the hands of the several district attorneys.
Since taking over the office of Attorney General I have met with the
district attorneys at my office in the State House and mutual cordial
understanding and confidence have been established between our respective
offices.
It is to be observed, however, that whenever occasion necessarily re-
quires the co-ordination of law enforcement agencies of the State, as chief
law enforcement officer of the Commonwealth on such solemn occasions
I shall not hesitate to act in the public interest by advice, exchange of
views, or by such other action in court or other^^'ise as may be deemed
necessary.
Obscene Literature.
Early in my service as Attorney General I caused to be formed an ad-
visory committee on juvenile reading composed of twenty-nine civic-
minded men and women connected with various religious, educational,
veterans' and youth service organizations of the Commonwealth. This
committee undertakes the task of screening new publications being offered
for sale and distribution to juveniles throughout the Commonwealth.
Publications which are considered offensive to the morals and tending to
corrupt the minds of youth are reported by this volunteer committee to
the Attorney General who requests that such publications be withdi-awn
from circulation. It is not my purpose as Attorney General to embark
upon a book-burning crusade or to set myself up as a censor, but to seek
the co-operation of publishers and booksellei'S by calling upon them to
clean their own houses. In one case which I brought into the courts the
Supreme Judicial Court of the Commonwealth sustained my view that a
book placed before it for adjudication exceeded the bounds of decency
and came within the restrictions of the law. The tragedy is that such
books, especially in low priced editions, fall into the hands of children in
the schools and are passed from hand to hand among school children and
discussed by them imknown to their parents. Following the decision of
the Supreme Judicial Court in the instance to which I have referred, a
religious journal of high standing in this Commonwealth, referring to the
efforts of the Attorney General, said editorially in part: "The ideal situ-
ation in regard to the printed word would be the arrangement whereby
each publisher took the responsibility for printing only decent publica-
P.D. 12. 9
tions. In point of fact most publishers are faithful to this public trust and
there is no problem. Occasionally someone for the sake of gain, or even
less worthy motives, overrides common decency and traffics in obscenity.
The ones most affected by it are the idle, the curious, the perverse and the
young; the mature mind is usually strong enough to remain unmoved by
it. At this point to protect society itself some force must step in to de-
clare in a specific case where literature ends, even 'earthy' literature, and
pornography begins. Such activity seems to be a necessary function of
government. ... If the matter were allowed to pass without correction
we would find that it would require government attention, especially police
attention, on a different level quite promptly. Most problems in social
disorder come out of the groups among whom indecent literature finds its
greatest influence. Common sense indicates that restricting the traffic in
obscene literature is striking delinquency at its roots."
Communism.
On September 29, 1949, I rendered a formal opinion to the Secretary of
the Commonwealth relative to chapter 619 of the Acts of 1949, which
statute in its effect bars from the public service members of the Com-
munist party or those who are members of or support any organization
which advocates the overthrow by force, violence or other illegal or un-
constitutional methods of the Government of the United States or of the
Commonwealth. In that formal opinion I stated in part:
"It is my opinion that no person who by reason of his or her own vol-
untary acts and conduct, explicitly or implicitly, by clear and reasonable
inference, comes within the prohibitions of the foregoing statute 'shall be
employed in any capacity by the commonwealth or any political subdi-
vision thereof.' The prohibitions of the statute have reference to, and
embrace within their sphere, employment in the service of the Common-
wealth and in the service of every political subdivision thereof, including
counties, cities, to^\Tis and districts." I further stated in my opinion that
"any person employed as above stated in this paragraph after the effective
date of the statute who has then by reason of his or her own acts and con-
duct, or who thereafter by reason of his or her own acts or conduct, brings
himself or herself within the prohibitions of the statute, would be subject
to removal from the public service."
Town By-Laws.
One of the many functions of the Attorn sy General is the approval of
town by-laws. Under the provisions of G. L: (Ter. Ed.) c. 40, §§27 and
32, no town by-law may become effective until it has received the approval
of the Attorney General of the Commonwealth. Shortly after I assumed
office in 1949 there came to my attention a by-law which had been adopted
by the towTi of Dover. This by-law, in its express terms and clearly in-
tended implications, would ha,ve the effect of excluding from the town of
Dover all religious educational institutions. This by-law had been ap-
proved by one of my predecessors in office. Upon studying the by-law I
10 P.D. 12.
fully realized that I had an imperative public duty to perform with refer-
ence to it. Without delay I called the attention of the town authorities
to the by-law, stressing to them its discriminatory and unconstitutional
character. My official efforts were met by the town authorities with flat
refusal. I thereupon directed to be made by members of my office staff a
further careful study of the legal aspects of this unpleasant situation and
finally came to the conclusion that it was necessary to have a more prompt
and sound remedy of procedure provided for by legislative sanction.
Recognizing as I did the evil of the situation and the unjust and undemo-
cratic implications which were involved, not only for the present but for
the future, I caused to be prepared a draft of legislation to implement
possible coiu't procedures in the matter. The draft of this implementing
legislation was presented to the Legislature. The gratifying result was
that both houses of the General Court adopted the legislation and enacted
it by chapter 325 of the Acts of 1950. This chapter was approved by His
Excellency Governor Dever on April 11, 1950, and thereupon became the
law of the Commonwealth. Upon this statute becoming effective, in my
own name as Attorney General I brought proceedings in the Superior
Court under the new statute by petition in equity for a declaratory decree.
This proceeding is now pending in the Supreme Judicial Court.
Veterans.
The Veterans' Division in the Department of the Attorney General has
during the past year continued to function daily concerning the many
problems and interests of veterans. Two Assistant Attorneys General
have been assigned to this important and humane work with excellent and
satisfying results. One of these assistants also represents the Attorney
General by sitting frequently on the Veterans' Bonus Appeal Board, which
board reviews appeals taken from decisions denying bonus payments.
Federal and State laws are carefully followed and interpreted by the Vet-
erans' Division. The present case load in this division is at a new high, due
to changes in laws pertaining to veterans. Questions are constantly pre-
sented concerning family problems, business ventures, civil service matters,
pension claims, participation in the Korean conflict and other factors grow-
ing out of present world conditions. The continuance of this division is
most earnestly recommended.
In October, 1949, my opinion was requested by the Commissioner of
Veterans' Services of the Commonwealth as to whether or not a veteran
who is participating in a strike growing out of a labor dispute, and conse-
quently being unemployed, is entitled to veterans' benefits under chapter
115 of the General Laws of the Commonwealth. A former Attorney Gen-
eral had rendered an opinion that a veteran so on strike and engaged in
picket duty was not entitled to such benefits. In my opinion I ruled other-
wise and stated in part: "Employees have a legal right to participate in a
lawful strike growing out of a labor dispute and have a right, within lawful
bounds, to participate, if necessary, on the picket lines in the exercise of
the right of peaceful persuasion. . . . When an employee who is a veteran,
P.D. 12. 11
within the meaning of the statutory provisions, is called out on strike by'his
union, he is not required to turn his back on his fellow striking employees
and abandon his legal right to strike or abandon the legal duties delegated
to him by his union of peaceful persuasion on the picket line in order to
preserve his rights to veterans' benefits if he and his dependents by virtue
of their circumstances are otherwise lawfully entitled to veterans' benefits
under the laws of the Commonwealth. It is my considered opinion that
veterans and their families should not be penalized for exercising their
legal rights when engaged in a lawful strike to better their working con-
ditions."
Early in 1949 my opinion was requested as to the legality of transporting
in funerals the bodies of deceased soldiers and veterans in other than
closed vehicles under a rule adopted by the Board of Registration in
Embalming. In my opinion to that board I stated in part as follows:
"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 Legis-
lature the intent, in granting a limited measure of rule-making power to
the board, to authorize the board by rule to abolish 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. ... In the interpretation
of the iTile consideration must be given to the intention of the lawmakers,
including the Legislature and the rule-making body authorized to make
rules within limited spheres by the Legislature. . . . My opinion is that
the rule here under consideration does not give your board 'the right to
prohibit the custom in military funerals of transporting the remains on a
caisson or jeep.'"
In October, 1949, I rendered an opinion to the Director of Civil Service
as to procedures by his office relative to the legal soundness of a rule,
approved by the Governor and Council, providing that veterans were
entitled to a two-point preference in competitive examinations for promo-
tion in positions in the classified civil service. Under the provisions of this
rule two additional points are added to the general average mark of veterans
in such examinations. My opinion was sustained by the Supreme Judicial
Court in the case of McCue v. Director of Civil Service, 325 Mass. 605.
During the year I have also ruled by formal opinion that a "paraplegic
veteran" temporarily residing outside the Commonwealth retains his
Massachusetts domicile and is still entitled to receive the special annuities
granted to this class of veterans; that a woman veteran is entitled to
veterans' benefits, although her veteran husband had become ineligible
to receive such benefits; that a veteran is entitled to receive veterans'
benefits, such funds being applied in part toward the care of a child in a
State institution; and that salary ratings and seniority rights of veterans
be protected in cases where promotions had been delayed because of service
in the military or naval forces.
12 P.D. 12.
Charitable Tri'sts.
As representative of the rights of the piibhc in public charitable trusts,
the Attorney General successfuly resisted efforts to have a trust created
under the will of the late Frank Wood of Dorchester terminated and its
assets distributed. The Supreme Judicial Court on January 3, 1950, sus-
tained the position taken by the Attorney General and, as a result, a trust
fund totaling in excess of three million dollars will be devoted to the con-
struction and maintenance of a convalescents' home and a home 'for
incurables.
This litigation, because of the huge sum involved, highlights the activities
of the Attorney Genei-al's Department with respect to charitable trusts.
Much additional work was done by this division of the department, how-
ever, which, though it must be classified as routine, is nevertheless highly
important in the safeguarding of funds left by public-spirited citizens to
be de^'oted to charitable purposes.
Recommendations,
The care and education of blind and deaf persons at certain schools is
provided for under G. L. (Ter. Ed.) c. 69, § 26. It is further provided under
that statute that ths Department of Education, with the approval of the
Governor, may, at the expense of the Commonwealth, make such provision
for the care and education of children who are both deaf and blind as it
may deem expedient. The provisions of law, however, should be amended
and broadened in scope so as to include children who are blind only but
v.'ho are also suffering from some crippling disability other than deafness.
Perfecting legislation is recommended relative to the commitment of
defective delinquents. G. L. (Ter. Ed.) c. 123, §§ 113, 114 and 123, should
be amended to expressly require actual notice to the defendant and, in
the case of minors, actual notice to the parent or guardian. Notice and
hearing are fundamentals of due process.
Conclusion.
In my last annual report 1 set out in more or less detail the principal
duties of the Attorney General. The changing conditions of the times have
substantially increased the activities which must necessarily occupy the
attention of the Department of the Attorney General and every effort has
been made by the Attorney General and his staff to meet constantly arising
new problems.
In closing this present report I desire to express my sincere appreciation
of the faithful services and commendable co-operation of my staff of As-
sistant Attorneys General, my confidential secretary, and others of my
legal assistants who have performed their public duties ably and well and
always with a high sense of justice. The civil service staff in the Depart-
ment of the Attorney General have without exception performed their
duties faithfully, intelligently and efficiently, which has been of great
assistance to me in the performance of my duties as Attornej^ General.
P.D. 12. 13
I cannot close this annual report without expressing my deep apprecia-
tion for the helpful co-operation and understanding of the Legislature, as
well as of His Excellency the Governor, concerning the many needs and
intricate problems of the office of the Attorney General.
To serve the people of this Gommonweolth as Attorney General is not
only a great privilege but a great honor. That privilege and that honor I
respect with a deep sense of gratitude and devotion.
Respectfully submitted,
FRANCIS E. KELLY,
Atlorneij General.
OPINIONS.
Division of Marine Fisheries — Use of Boat.
Aug. 8, 1949.
Hon. Arthur T. Lyman, Commissioner of Conservation.
Dear Sir: — In a recent communication you submitted to me the
three following questions for my determination :
"1. Under G. L. (Ter. Ed.) c. 21 do the fish inspectors remain in the
Division of Marine Fisheries or should they be in the Division of Law
Enforcement?
"2. Are the boat captain and his crew members of the Division of Law
Enforcement or should they remain in the Division of Marine Fisheries,
and finally,
"3. The boat itself, does it belong in the Division of Law Enforcement
or in the Division of Marine Fisheries?"
I answer your first question as follows: The fish inspectors are enforce-
ment officers w^ho formerly under G. L. (Ter. Ed.) c. 21, § 80, as it existed
prior to the enactment of St. 1948, c. 651, were in the bureau of law enforce-
ment, within the division of marine fisheries. This bureau was the law
enforcement agency of the division of marine fisheries. Under the new
chapter 21 of the General Laws, inserted by St. 1948, c. 651, the director
of the division of law enforcement, a new officer in the Department of
Conservation, is given charge of the division of law enforcement under
the control of the commissioner. The fish inspectors, although not speci-
fically mentioned in the new chapter 21, are, nevertheless, under the provi-
sions of section 5 thereof, to continue to serve in the department and
perform the same duties as were formerly assigned to them.
I answer your second question as follows: You describe the captain
and crew of a boat used in your department as persons who perform police
duties and have been made deputy coastal wardens. They are, therefore,
persons who under G. L. (Ter. Ed.) c. 21, § 8C, were members of the bureau
of law enforcement. They now come under the jurisdiction of the director
of law enforcement, subject to the control of the commissioner.
I answer your third question as follows: There is no specific mention
of the boat in the new chapter 21. It is, therefore, in the control of the
commissioner. When the commissioner assigns the boat for use by law
enforcement officers, it shall at such times be in charge of the director of
law enforcement. The commissioner may, however, assign the boat to
the use of other personnel in the division of marine fisheries at such times
as he may deem necessary or expedient.
Very truly yours,
Francis E. Kelly, Attorney General.
P.D. 12. 15
Public Works — Expenditures — Highway Program — Appropriations.
Aug. 9, 1949.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir: — You have requested my opinion as to whether the pro-
visions of G. L. (Ter. Ed.) c. 29, § 9B, are appHcable to funds to be ex-
pended by the Department of Pubhc Works (hereinafter called the de-
partment) in accordance with St. 1949, c. 306.
General Laws (Ter. Ed.) c. 29, § 9B, as inserted by St. 1941, c. 564, is
as follows:
"Sums made available on and after December first, nineteen hundred
and forty-one, by appropriation or otherwise, to executive and adminis-
trative offices, departments and undertakings, including offices under the
governor and council, but not including the office of the governor or the
office of the lieutenant governor, shall be expended only in such amounts
as may be allotted as provided in this section. The governor shall from
time to time divide each fiscal year into allotment periods of not less
than one month nor more than foiu' months. He shall, after requesting a
written recommendation from the commission on administration and fi-
nance, allot to each such office, department and undertaking the amount
which it may expend for each such period out of the sums made available
to it by appropriation or otherwise. The officer in charge of each such
office, department or undertaking shall submit in advance to the budget
commissioner, in such form and at such times as he shall prescribe, a
detailed estimate of anticipated expenditures for each such allotment
period."
The apparent object of the foregoing provisions, as pointed out in the
annual message of Governor Saltonstall to the General Court, Senate
Document No. 1 (1941) p. 29 et seq., upon which the legislation was based,
is the control of the ordinary appropriations of the various State depart-
ments throughout the fiscal year.
Chapter 306 of the Acts of 1949, however, does not relate to the ordi-
nary, annual expenditures of the public agencies referred to therein. As
appears from the emergency preamble, the funds provided are to be ex-
pended to implement an accelerated highway program, and section 13 of
the act estabhshes a time limit within which all contracts for the projects
authorized by the act must be entered into. This time limit expires on
June 30, 1951, more than two years from the date of enactment of the
statute. In view of this latter provision, it would be necessary to read
into G. L. (Ter. Ed.) c. 29, § 9B, authority for the allocation of funds hy
years, as well as by periods within a fiscal year, in order to make it appli-
cable to expenditures under chapter 306. Such authority is obviously be-
yond the scope of section 9B, and since the effect of finding such authority
would be to slow down the rate of expenditure in the face of the legislative
mandate to inaugurate an accelerated rate of expenditure of the funds made
available by chapter 306, it could not have been the intention of the
Legislature that such funds were to be subject to allotment by periods
under section 9B.
Moreover, it is questionable whether the provisions of section 9B, for
16 P.D. 12.
setting up allotment periods and the allotment of funds were ever in-
tended by the Legislature to apply to appropriations made by it for
particular construction projects, which by statute as well as by practical
necessity must be contracted for on the basis of a total bid price and not
on the basis of how much work can be constructed in an allotment period.
Here, again, the purpose of section 9B, of slowing down the rate of ex-
penditure is not in accord with the object of public works construction,
the interest of the public being better served by the speedy completion of
the projects.
In addition to the foregoing considerations, it is clear from the pattern
of the act itself that the intention of the Legislature in enacting chapter
306 was to establish a special, self-contained procedui'e for safeguarding
and regulating the extraordinary expenditure of funds therein provided.
Thus, section 1 specifies in elaborate detail the types of projects to be un-
dertaken. Section 2 provides, with an exception not here material, that
the department shall have "full authority to select the projects to be
undertaken" (emphasis supplied). Section 3 authorizes and directs the
department to make a survey and to report its conclusions to the clerk of
the House of Representatives not later than June 1, 1949, on the feasibility
and practicability of a proposed expressway and connections. Section 4
authorizes and directs the Metro pohtan District Commission (hereinafter
called the commission) to expend a sum, not to exceed $8,000,000, for
projects to be constructed in the area set forth in the "Master Highway
Plan for the Boston Metropolitan Area," established and defined in Ex-
hibit B of House Document No. 1767 (1948). Section 5 authorizes and
directs the department to expend a sum, not to exceed $37,000,000, for
projects to be constructed in the area set forth in the "Master Highway
Plan for the Boston Metropolitan Area." Section 6 authorizes and directs
the department to expend a sum, not to exceed $53,000,000, for projects
to be constructed in the area set forth in "The Report on Massachusetts
State Highway Needs, exclusive of Metropolitan Boston," established and
defined in Exhibit A of House Document No. 1767 (1948) and for traffic
studies in urban areas and for studies to determine the desirability and
feasibility of revenue producing facilities. Not less than $5,000,000 of
this sum is to be expended in each of the following four districts: in the
area west of the Connecticut River; in the area lying between the Con-
necticut River and the easterly boundary line of Worcester County; in
Essex, Middlesex and Norfolk Counties, including Route 128 therein; and
in Bristol, Plymouth, Barnstable, Dukes and Nantucket Counties. Sec-
tion 7 authorizes and directs the department to expend $2,000,000 for
traffic safety devices on specified highways. Section 10 provides that to
meet the expenditures necessary in carrying out the foregoing provisions
the State Treasurer shall, upon reciuest of the Governor and Council, issue
bonds of the Commonwealth to an amount to be specified by the Governor
and Council from time to time but not exceeding in the aggregate $100,-
000,000. Section 11 enumerates the elements to be included in the cost
of the work authorized and provides that the department and the commis-
sion may engage additional engineering and other personnel, but may not
increase the number of permanent positions in their engineering forces.
Section 12 requires the department and the commission to file detailed
progress reports with the Governor and the clerk of the House of Repre-
sentatives on December 31, 1949, June 30, 1950, and December 31, 1950,
and a final report on or before July 31, 1951, relative to all projects under-
P.D. 12. 17
taken. S(»ction 13 specifies that all contracts for projects authorized l)y
the act shall be entered into not later than June 30, 1951.
Thus, it appears that the Legislatun; has itself, by clear and unambigu-
ous language, made allotment of the funds provided by St. 1949, c. 306.
Such allotments have been spelled out in elaborate detail as to the terri-
tory in which funds are to be expended (see sections 4, 5 and 6) ; as to type
of project to be undertaken (see sections 1, 3, 5 and 7); and a« to time in
which funds are to be expended (see section 13). In addition, the Legis-
lature has, in section 12, laid down explicit requirements for detailed
progress reports to be made at specified intervals and a final report. These
reports are to b{> submitted to the Governor and the clerk of the House of
R(^presentatives. Such provisions are inconsistent with the provisions of
G. L. (Ter. Ed.) c. 29, ^ 9B.
It is a well established principle of statutory construction, however,
that where a special statute is inconsistent with the provisions of a general
law, the former is controlling. Clancy v. Wallace, 288 Mass. 557, 564.
McKenna v. White, 287 Mass. 495, 499. See Copeland v. Springfield, 166
]\Iass. 498, 504 and cases cited.
As has been manifested herein, the application of G. L. (Ter. Ed.) c. 29,
§ 9B, to the expenditure of funds under St. 1949, c. 306, would be incon-
sistent not only with the legislative intention expressed in the preamble
and section 13 of the act, but with the operation of the legislative plan
contained therein. I am, therefore, of opinion that the provisions of sec-
tion 9B, are not applicable to the expenditure of funds authorized by
chapter 306.
Very truly yours,
Francis E. Kelly, Attorney General.
Employment Security Counsel, paid out of Federal Grants of Funds, rein-
stated after Retirement.
Aug. 17, 1949.
Hon. John E. Hurley, Treasurer and Receiver General.
Dear Sir: — In j^our capacity as chairman ex officio of the State Board
of Retirement and in your capacity as Treasurer and Receiver General of
the Commonwealth you request my opinion relative to the matter of the
designation and appointment of a certain employee in the service of the
Division of Emploj^ment Security.
On June 24, 1949, under the provisions of G. L. (Ter. Ed.) c. 151A,
§ 42A, as Attorney General I designated the employee in question as em-
ployment security counsel.
This employee is a war veteran. He was retired for superannuation on
July 1, 1948, upon his own motion and request. The situation at that time
was this: He had two choices of selection as to the method of retirement
from the public service, (1) superannuation; and (2) disability. He elected
to retire for superannuation. Having in mind the length of his service in
the division, if he had postponed his retirement for approximately six
months more he could have retired for disabilit3^ At the time of his retire-
ment from the Division of Employment Security he had been employed
therein for a period of over nine years.
18 P.D. 12.
This employee is a member of the Massachusetts bar and has been so
for a number of years. During his period of service in the Division of
Employment Security he held a position as employment security counsel,
which required professional skill and a knowledge of the many legal aspects
of the work of the division. It was my opinion at the time I designated
him as employment security counsel that the division would be benefited
by his return to his former work, to which he would naturally bring the
advantages of his accumulated experience and knowledge accjuired during
his long years of previous service.
He successfully passed the necessary civil service examination for em-
ployment security counsel and was certified for appointment by the di-
rector of civil service on July 8, 1949. He had a lawful right to take this
civil service examination and the director of civil service had a lawful right
to certify him for appointment in the capacity above stated to the Division
of Employment Security. As heretofore stated, on June 24, 1949, I desig-
nated him, as I had a lawful right to do, to the position concerned in the
division. The director of the division appointed him, as he had a lawful
right to do under all the circumstances.
The employee in question is about fifty-eight years of age. The com-
pulsory retirement age in Massachusetts is seventy years in the class of
employment to which he has been appointed and designated.
There ar^ found no express provisions in G. L. (Ter. Ed.) c. 32, or else-
where, prohibiting the re-employment of one of the age of this employee
under the circumstances disclosed in this opinion, who has been retired for
superannuation. And this is especially true where the head of the depart-
ment seeks to re-employ him, and the Attorney General seeks to designate
him, because of his experience, specialized learning and special skills in the
line of work of the division in which it has been the purpose to employ him.
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 con-
trol of its director. G. L. (Ter. Ed.) c. 23, § 91 (a). The division is placed
in the Department of Labor and Industries solely to meet the requirements
of the Constitution and for no other purpose. Mass. Const. Amend.
LXVI.
The division is operated exclusively on Federal grants of funds. 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.
As Treasurer and Receiver General of the Commonwealth you have a
measure of implied powers as well as powers expressly conferred upon you
by statute. Likewise, as chairman of the State Retirement Board, virtute
officii, you have a measure of implied powers as well as powers expressly
conferred upon you by statute, which also applies, in so far as it is appli-
cable, to the other members of your board. If this were not so, in ad-
ministrative work by public officers it would often be difficult indeed to
function as public officers in carr3''ing out public purposes in accordance
with the legislative intention. In statutory interpretation it is always
important to consider the principal objective sought to be accomplished
by the Legislature, and this is especially true where the Legislature has
passed into law a long and complex statute. It is a cardinal rule of statu-
tory construction that rights of citizens are not to be taken away by
merely reading implications into any of the provisions of a statute. To
take away such rights clear and explicit language in the statute is neces-
P.D. 12. 19
sary. It is further to be noted that statutes are to be construed always in
the Hght of sound reason and common sense.
On all of the foregoing it is my opinion that the State Retirement Board
has full authority to reinstate the designated appointee herein concerned
in the public service upon such terms and conditions as the State Retire-
ment Board may lawfully impose. It is furthermore my opinion that you
have, as State Treasurer and Receiver General, full authority to carry out
all necessary purposes within your province to perfect that reinstatement,
following the action of the said board.
Very truly yours,
Francis E. Kelly, Attorney General.
Education — Eligibility of Teacher for Sabbatical Leave,
Sept. 8, 1949.
Hon. John J. Desmond, Jr., Commissioner of Education.
Dear Sir:^ — You have requested my opinion as to whether or not a
certain teacher, an assistant professor in the State Teachers College at
Bridgewater, is eligible for leave of absence for study and research under
G. L. (Ter. Ed.) c. 73, § 4A, for a period of one year at half pay or for a
period of a half year at full pay. You inform me that the teacher in ques-
tion entered the State Teachers College at Bridgewater as a training school
teacher in September, 1934, with compensation divided between the Com-
monwealth and the town of Bridgewater; that in 1943 the teacher in
question became a principal of the training school at Bridgewater and her
title became that of senior instructor, that this teacher has been con-
tinuously in service since her first employment in 1934; and that in
September, 1946, the Commonwealth took over the complete operation,
maintenance and expense of the training school at Bridgewater, including
the payment of the full amount of salaries.
In my opinion, the teacher in question, who seeks a sabbatical leave of
absence for studj^ and research, may be granted such leave under the
terms and conditions set forth in G. L. (Ter. Ed.) c. 73, § 4A, including
that of entering into the written agreement provided for in that statute
of making a refund to the Commonwealth if she does not return to the
service.
Very truly yours,
Francis E. Kelly, Attorney General.
Authority of Board of Registration in Optometry to make Rules and Regu-
lations — Legality thereof.
Sept. 8, 1949.
Mr. William H. J. Rowan, Director of Registration.
Dear Sir: — I have your letter of August 25, 1949, in which you in-
quire as to the legality of a proposed rule which the Board of Registration
in Optometry wishes to adopt. The proposed rule reads as follows:
"The Board shall issue a certified statement of registration for use and
display in an approved branch office of an optometrist, said statement to
20 P.D. 12.
be in such form as may be prescribed by the Board. Said statement
shall contain information additional to the regular certified statement of
r(>gistration and the fee therefor shall be two dollars."
Each optometrist at the present time is required to display his certifi-
cate of registration in a conspicuous place in the principal office wherein
he practices optometry. G. L. (Ter. Ed.) c. 112, ^^ 70, as amended.
The Board of Registration in Optometry is empowered to make rules
and regulations governing the practice of optometry. G. Iv. (Ter. Ed.)
c. 112, § 67.
The present rules adopted by the board permit the establishment of an
office other than a principal office upon approval by the board. See rules
and regulations governing the practice of optometry, rule 2.
It is provided by G. L. (Ter. Ed.) c. 112, § 88, as amended, as follows:
"Except as otherwise provided in section thirty-three of chapter ninety,
every board of registration or examination established by the common-
wealth shall —
" (1) Establish rules and regulations stipulating what information is
to be furnished in a certified statement of registration for the fee of one
dollar, and stipulating that, in case any additional information is fur-
nished, the fee shall be two dollars.
"(2) Furnish to any applicant the certified statement of registration
applied for, provided that the application therefor is accompanied by
the fee prescribed by its rules and regulations established as provided
above.
" (3) Issue a duplicate certificate of registration upon satisfactor}'
evidence that the original certificate has been lost or destroyed, and the
fee therefor shall be five dollars, except that the fee for duplicates of certifi-
cates of registration issued under sections eighty-seven T to eighty-
seven JJ, inclusive, shall be one dollar."
Under G. L. (Ter. Ed.) c. 112, § 88, as amended, there may be issued
a certified statement of registration, the fee for which is one dollar. For
additional information furnished the fee shall be two dollars. The present
established form of certified statement of registration, fee for which is one
dollar, does not meet requirements for use in a branch office. It would
appear, therefore, to be clear that, —
(1) An optometrist must display his certificate of registration in his
principal office.
(2) The board may authorize the establishment of a branch office.
(3) The law already provides for the issuance of a certified statement of
registration.
(4) The board has authority to make rules and regulations governing
the practice of optometry consistent with law.
As I interpret your request, the certified statement of registration re-
ferred to in the rule which it is proposed to adopt will bo used only in a
branch office approved by the board and will contain additional infor-
mation at least to this extent: "This certified statement of registration
is for use and display in the branch office of the optometrist."
In my opinion, the proposed charge^ of two dollars for a certified state-
ment with this additional information is proper and is in compliance with
the law.
P.D. 12. 21
It is also my opinion that the proposed riil(> is a reasonable exercise of
the nile-making power of the board.
It would be necessary, of course, that ther<> be ccnipliance by the board
with G. L. (Ter. Ed.) c. 30, § 37, as amended, requiring the fihng of at-
tested copies of rules and regidations, together with a citation of law under
which they are issu(>d, \\ith the Secretary of the Commom\-ealth.
^'ery truly yours,
Francis E. Kelly, Attorney Ceneral.
Agriculture — Furnishing of Surety Ihnds by Licensed Poultry Dealers.
Sept. 13, 1949.
Hon. John Chandler, Commissioner of Agriculture.
Dear Sir: — You have asked my opinion as to whether or not certain
licensed dealers regularly engaged throughout the Commonwealth in the
business of buying and selling poultry for food purposes are required to
furnish a bond, under the provisions of St. 1949, c. 446, for the balance of
the 3'ear ending December 31, 1949. On the information you furnish me
it appears that there are in excess of five hundred such poultry dealers who
are now licensed; and that it will occasion great hardship and more or less
confusion, with seme disruption in the trade, if these dealers are required
to furnish a bond for the short period between the effective date of the
statute and the end of the year, and that it will also create administrative
difficulties in your department.
The new statute, St. 1949, c. 446, requires that poultry dealers of the
class referred to in your request for my opinion shall file a surety bond
with the Commissioner of Agriculture and such information as may be
required by the commissioner, as provided by the statute, on forms to be
furnished b}' the commissioner. The surety bond is to be conditioned as
provided by the express terms of the statute.
All licenses issued to these poultry dealers expire coterminously with
the calendar year.
Having in mind all of the foregoing it is my opinion that St. 1949, c. 446,
was intended by the Legislature to operate prospectively and not n^tro-
spectively. The statute was approved by the Governor on June 16, 1949,
and becomes effective ninety days thereafter. It is my opinion that any
new licenses issued on and after the effective date of the statute would
require the filing of a bond as contemplated by the statute, and that all
dealers whose existing licenses do not expire until the end of the calendar
year would not be required to file a bond until the renewal of their licenses
at the commencement of the forthcoming calendar year. In the case of
the revocation or surrender of a license, however, and the issuance of a
new license before the end of the present calendar year, a bond would have
to be filed under the terms of the statute.
Very tridy yours,
Francis E. Kelly, Attorney Ceneral.
22 P.D. 12.
Oath Requirement upon entering Service of Commonwealth and Barring
Certain Persons Therefrom.
Sept. 29, 1949.
Hon. Edward J. Cronin, Secretary of the Commonwealth.
Dear Sir: — You have requested my opinion relative to certain features
of the oath or affirmation required by St. 1949, c. 619, a legislative act
entitled "An Act barring certain people from the public service."
This statute is in amendment of G. L. (Ter. Ed.) c. 264, which chapter is
entitled "Crimes against Governments," and adds three new sections
thereto. It was approved by the Governor on July 30, 1949, and becomes
effective as the law of the Commonwealth ninety days thereafter. It is a
penal statute and must therefore receive a strict construction. Mass.
Const., pt. 1st, art. XXIV. Commonwealth v. Worcester and Nashua Rail-
road Co. 124 Mass. 561, 563. Cleaveland v. Norton, 6 Cush. 380, 383.
Monson v. Chester, 22 Pick. 385, 387. "In putting a construction upon
any statute, every part shall be regarded, and it shall be expounded, if
practicable, as to give effect to every part of it." Commonwealth v. Alger,
7 Cush. 53, 89. Furthermore, being a penal statute it must not be con-
strued as operating retrospectively; nor must the statute for any other
reason be so construed as to defeat the clear legislative intent.
It is my opinion that no person who by reason of his or her own volun-
tary acts and conduct, explicitly or implicitly, by clear and reasonable
inference, comes within the prohibitions of the foregoing statute "shall be
employed in any capacity by the commonwealth or any political sub-
division thereof." The prohibitions of the statute have reference to, and
embrace within their sphere, employment in the service of the Common-
wealth and in the service of every political subdivision thereof, including
counties, cities, towns and districts.
It is my opinion that every person upon entering the employment of the
Commonwealth or of any political sub-division thereof, including counties,
cities, towns and districts, is required under the express terms of the
statute, before entering upon the discharge of his or her duties, to take the
prescribed oath or affirmation in the form set out in the statute and sub-
scribe his or her name to it on a blank form prepared for the purpose, under
the penalties of perjury. Under the terms of St. 1949, c. 619, it will not
be necessary for anyone to take the oath or affirmation before a justice of
the peace or other officer qualified to administer oaths. See G. L. (Ter.
Ed.) c. 268, § lA, as amended, and G. L. (Ter. Ed.) c. 4, § 6, cl. 6. The
oath provided for in the statute is as follows:
"I do solemnly swear (or affirm) that I will uphold and defend the Con-
stitution of the United States of America and the Constitution of the Com-
monwealth of Massachusetts and that I will oppose the overthrow of the
government of the United States of America or of this Commonwealth
by force, violence or by any illegal or unconstitutional method."
Having in mind the express terms of the statute, it is clear that those now
in the employ of the Commonwealth, or of any political subdivision thereof,
in any capacity, are not required to take the prescribed oath or affirmation
when the statute becomes effective, as a condition precedent to remaining
I
P.D. 12. 23
in the public service. But it is to be observ^ed that any person employed as
above stated in this paragraph, after the effective date of the statute, who
has then by reason of his or her own acts and conduct, or who thereafter
by reason of his or her own acts or conduct, brings himself or herself within
the prohibitions of the statute, would be subject to removal from the public
service.
Very truly yours,
Fr.\xcis E. Kelly, Attorney General.
Boston Police Department — Increase in Annuities to Dependents of De-
ceased Policemen.
Oct. 5, 1949.
Hon. Thomas F. Sullivan, Police Commissioner of the City of Boston.
Dear Sir : — I have your recent request for my opinion interpreting
section 1 of St. 1949, c. 681.
The act in question is as follows:
"The Boston retirement board or other appropriate retiring authority,
as the case may be, may increase by twenty per centum, effective March
first, nineteen hundred and forty-nine, the present annual pension or
retirement allowance of all former employees and of all beneficiaries of
deceased employees of the city of Boston and of the county of Suffolk,
who were retired prior to October first, nineteen hundred and forty-six;
provided, that such increases shall apply only to those who are now re-
ceiving less than fifteen hundred dollars per year; and provided, further,
that no pension or retirement allowance shall be increased hereunder by
an amount which will make the same exceed fifteen hundred dollars per
year."
You state that the pension rolls of the Boston police department con-
tain the names of forty-one annuitants who are receiving annuities which
were granted under the provisions of G. L. (Ter. Ed.) c. 32, § 89, as
amended, where the deceased police officers were not retired but died in
the service of the police department from injuries received in the actual
performance of police duty.
Your question is: Are these beneficiaries entitled to the increase pro-
vided by St. 1949, c. 681 § 1? I answer your question in the affirmative.
There is a long-established rule that statutes shall be construed ac-
cording to the manifest intent of the Lsgislature, though apt words to
express that intent may not be used, or though such construction may
not accord with the letter of the statute. See Commonwealth v. Dracut,
8 Gray 455, 457.
"We must look beyond the letter of a statute where a literal construc-
tion would be inconsistent with the legislative intent." Price v. Railway
Express Agency, 322 Mass. 476, 484.
"A statute as a whole ought, if possible, to be so construed as to make
it an effectual piece of legislation in harmony with common sense and
sound reason." Morrison v. Selectmen of Weymouth, 279 Mass. 486, 492.
See also Knapp v. Amero, 298 Mass. 517, 522.
24 P.D. 12.
A statute should be interpreted in the hght of the "pre-existing state
of the . . . law . . . and the main object to be accomplished." Kneeland
V. Emerton, 280 Mass. 371, 376.
In the case of Acford v. Cambridge, 300 Mass. 391, 394, the court said
that the history of G. L. (Ter. Ed.) c. 32, § 80 (relating to retirement of
firemen disabled from service), showed an increasing recognition of the
duty of society to those who serve it in hazardous public occupations. It
would seem to follow that section 85 of chapter 32, relating to the retire-
ment of policemen for the same causes, must be construed as evincing the
same recognition. The same case went on to say, at page 394, that the
evolution of G. L. (Ter. Ed.) c. 32, § 89, as amended (relating to annuities
to dependents of policemen or firemen dying from injuries due to their
employment) evidences "an increasing recognition of the obligation of the
public toward those who enter its service in occupations involving risk
of injury and death."
If in section 1 of St. 1949, c. 681, there had been added after the word
"retired" the words "or died," so as to read "all beneficiaries of deceased
employees of the city of Boston and of the county of Suffolk, who were
retired or died prior to October first, nineteen hundred and forty-six,"
the beneficiaries on your pension rolls would clearly be included. To
interpret this statute as benefiting only the beneficiaries of deceased em-
ployees who were retired before death, and not those who died instantly
from their injuries, would be defeating the clear purpose of the statute.
The Legislature intended to increase the allowances given to the living
employees who were retired, and to the beneficiaries of those employees
who died in line of duty, whether they died immediately after the injuries
or were retired before the injuries resulted in death. See Acford v. Cam-
bridge, 300 Mass. 391, 395.
Very truly yours,
Francis E. Kelly, Attorney General.
Assistants in Medicijie — Limited Registration — Practicing Medicine in
Homes under G. L. {Ter. Ed.) c. 112, % 9 A.
Oct. 5, 1949.
Mr. William H. J. Rowan, Director oj Registration.
Dear Sir: — Through you the Board of Registration in Medicine has
requested my opinion on the following question:
"Does the assignment of assistants in medicine, holding limited regis-
tration in the Commonwealth of Massachusetts, to the care and observa-
tion of persons requiring medical service by an instructor in a legally
chartered medical school as specified in G. L. (Ter. Ed.) c. 112, § 9A,
apply to medical service in the home separate and apart from medical
service at a hospital?"
My answer is in the affirmative. G. L. (Ter. Ed.) c. 112, § 9A, provides:
"An applicant for limited registration under this section as an assistant
in medicine, who ... is enrolled in and has creditably completed not
less than two years of study in a legally chartered medical school . . .
P.D. 12. 25
and . . . has boon assigned to tho cai'o and obsorvation of porsons requir-
ing medical service by an instructor in said medical school, which instruc-
tor shall 1)0 a registered physician, may . . . be registered ])y the board
as an assistant in medicine. . . . Such registered assistant in mr'dicine
may practice medicine as authorized by this section, but only under the
supervision of such instructor; he ma}^, however, be assigned by such
instructor to a hospital . . . and may practice medicine as aforesaid in
said hospital, but only under the supervision of a ri'gistered . . . staff
physician in said hospital. ..."
This statute must l)e interpreted according to the legislative intent
appearing from the language thereof in connection with the subject matter
and the object to be accomplished. National Fire Insurance Co. v. Goggin,
267 Mass. 430, 436. Meu7iier's Case, 319 Mass. 421.
For some time prior to 1922 some medical schools in this Common-
wealth as part of their teaching program had sent students out to attend
the sick, but under medical supervision. Then in 1922 the above statute
wa.s passed to give legal sanction to this growing and desirable practice.
The statute expressly provides that assistants in medicine may practice
medicine under the supervision of an instmctor who is a registered physi-
cian and who has assigned these assistants to the care and observation of
persons requiring medical service. This language is clearly broad enough
to include sick persons in their own homes. The instructor may also
assign the assistants to certain hospitals, where they may practice medi-
cine under the supervision of a staff physician at the hospital. When the
medical assistant practices medicine in homes he is under the supervision
of the medical school instructor, and when he practices in the hospital
he is under the supervision of the staff physician.
The statute thus provides for two independent types of activity by
such assistants in medicine.
Very truly yours,
Francis E. Kelly, Attorney General.
Veterans' Benefits — Eligibility to when Veteran engaged in Lawful Strike.
Oct. 8, 1949.
Hon. Henry V. O'Day, Coynmissioner of Veterans' Services.
Dear Sir : — You have asked my opinion as to whether or not a vet-
eran who is participating in a strike growing out of a labor dispute, and
consequently is unemployed, is entitled to veterans' benefits under G. L.
(Tor. Ed.) c. 115.
You have also stated in your request that my predecessor in office
rendered you a written opinion stating "that to strike and to remain on
strike without seeking employment with a new employer 'is to engage in
voluntary idleness'" within the meaning of the third paragraph of sec-
tion 5 of G. L. (Ter. Ed.) c. 115, to which you expressly call my attention
and which reads as follows:
"No veterans' benefits shall be paid to or for any appUcant if the ne-
cessity therefor is caused by his voluntary idleness or continuous vicious
or intemperate habits. . . ."
26 P.D. 12.
I do not concur in the opinion of the former Attorney General that to
strike and to remain on strike without seeking employment Avith a new
employer is to engage in "voluntary idleness" within the meaning of the
provisions of chapter 115 of the General Laws; and that consequently
under the terms of the statute veterans' benefits may not be paid to
veterans so on strike.
What constitutes a veteran and what constitutes the dependents of a
veteran with reference to veterans' benefits and what constitutes veterans'
benefits are defined in G. L. (Ter. Ed.) c. 115, § 1.
Payments of veterans' benefits to veterans and their dependents, under
appropriate circumstances, are provided for in explicit language in G. L.
(Ter. Ed.) c. 115, § 5. The particular language in that chapter to which
you call my attention is to be read not only in conjunction with the entire
context of the section from which the language quoted above has been
extracted but also in conjunction with the context of the entire chapter
in so far as the chapter relates to veterans' benefits. All this is necessary
in order to arrive at a fair, reasonable and rational conclusion in deter-
mining the legislative intention.
Employees have a legal right to participate in a lawful strike growing
out of a labor dispute and have a right, within lawful bounds, to partici-
pate, if necessary, on the picket lines in the exercise of the right of peaceful
persuasion. G. L. (Ter. Ed.) c. 149, § 24. When an employee who is a
veteran, within the meaning of the statutory provisions, is called out on
strike by his union, he is not required to turn his back on his fellow .strik-
ing employees and abandon his legal right to strike or abandon the legal
duties delegated to him by his union of "peaceful persuasion" on the
picket line in order to preserve his rights to veterans' benefits if he and his
dependents by virtue of their circumstances are otherwise lawfully entitled
to veterans' benefits under the laws of the Commonwealth.
It is my considered opinion that veterans and their families should not
be penalized for exercising their legal rights when engaged in a lawful
strike to better their working conaitions.
Very truly yours,
Francis E. Kelly, Attorney General.
Public Works — Deduction of Value of Unconsumed Small Tools and
Certain Materials under ^'Cost Plus^' Contracts.
Oct. 11, 1949.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir: — In a recent communication you have requested my opin-
ion as to whether the procedure adopted by the department for the treat-
ment by it of small tools and materials not consumed in the performance
of the work under "cost plus" contracts entered into by the department
under authority of St. 1949, c. 3, is correct.
The procedure followed is to take an adjusted credit for such small
tools and materials which remain of value at the termination of the work,
retained by the contractor, in an amount based on a valuation by the
district engineer.
P.D. 12. 27
Your request further refers to schedule 673, voucher #3164, and the
item of credit for small tools attached thereto and you request my opinion
as to whether the voucher with the credit attached should be paid.
I answer both your questions in the affirmative.
The contracts you refer to were entered into under authority of section
4 of St. 1949, c. 3, which states that the department may "make cost
plus contracts ^\^thout complying with the provisions of section eight A
of chapter twenty-nine of the General Laws, and any provision of general
or special law to the contrary notwithstanding ..." (emphasis supplied).
The only restriction upon the making of such "cost plus" contracts was
a limitation upon the total amount of the appropriation to be so expended.
The obvious purpose of granting the department such authority was to
enable it to repair the damage done by, and to protect against, floods in
western Massachusetts in accordance with the legislative purpose ex-
pressed in the emergency preamble of the act that it is "necessary that
the work authorized by this act be carried out without delay."
The statute in authorizing the making of "cost plus" contracts without
further description of that term must be taken to authorize the making
of such contracts as are customary in the ordinary course of the business
of the construction, reconstruction and repair of projects of the class re-
ferred to in the statute.
You state that it is the well-established custom in "cost plus" con-
tracts to consider the salvage value of small tools and materials on com-
pletion of the contract as a deduction from the cost, and you further
state that at all times it was understood with the contractor that such
would be the procedure to be followed in the contract entered into under
St. 1949, c. 3, § 4.
It is indicated by the brevity of the provisions contained in the "cost
plus" contract, executed under authority of the statute, governing the
method of, and items to be considered in, determining the contractor's
compensation, that it was intended that items were to be determined ac-
cording to methods in common use in business and within the understand-
ing of the parties. It is evident that this situation was occasioned by
the desire for compliance with the legislative mandate of necessary haste
in the performance of the work.
The statement in your request that it is the custom in "cost plus"
contracts to deduct from the cost the value of small tools and materials
not consumed in the work, is confirmed by an examination of the "Stand-
ard Form of Cost Plus Agreement between Contractor and 0\^^ler," Fourth
Edition 1920-1925, issued by the American Institute of Architects, Wash-
ington, D. C, and of other material of the Institute. See 2 Nichols,
"Encyclopedia of Legal Forms Annotated," (1936) 287, et seq. Because
it was the understanding of the parties to the contract that such trade
customs and uses should be applicable, it follows that it is one of the
terms of the contract that the value, as determined by the division engi-
neer, of small tools and materials not consumed in the performance of
the work which are retained by the contractor, shall be credited against
the cost of the work.
Since the making of "cost plus" contracts authorized by St. 1949,
c. 3, § 4, includes authority to make them according to trade custom and
since the statute expressly provides that the department is authorized to
make such "cost plus" contracts, '^any provision of general or special law
to the contrary notwithstanding," it follows that the provisions of G. L.
28 P.D. 12.
(Ter. Ed.) c. 7, § 22, even if they could be considered to be applicable to
the disposition of small tools, etc. — which is open to question — are en-
tirely inapplicable in the circumstances here stated.
Very truly yours,
Francis E. Kelly, Attorney General.
Boxing — Age of Contestants.
Oct. 19, 1949.
Hon. John F. Stokes, Chairman, Ex-Officio, State Boxing Commission.
Dear Sir: — You have requested an opinion concerning the authority
of the State Boxing Commission to issue a license under G. L. (Ter. Ed.)
c. 147, § 35, as amended, to Joseph Louis Barrow, otherwise known and
hereinafter referred to as Joe Louis, for the purpose of engaging in a boxing
or sparring match or exhibition.
It appears from information submitted that Joe Louis was born May 13,
1914, and hence that he is beyond his thirtv-fifth birthday.
As originally enacted (see St. 1920, c. 619, § 10), G. L. (Ter. Ed.) c. 147,
§ 39, provided:
''No contestant under eighteen j^'ears of age shall be permitted to engage
in any boxing or sparring match or exhibition . . ."
By St. 1948, c. 371, the words "or over thirty-five" were inserted so as
to read:
"No contestant under eighteen or over thirty-five shall be permitted to
engage in any boxing or sparring match or exhibition, except that an
amateur boxer shall be allowed to compete as such at the age of seventeen.
No person under sixteen shall be admitted to or be present at any boxing
or sparring match or exhibition."
The interpretation to be placed upon the phrase "or over thirty-five"
is one of first impression in this Commonwealth. The principle to be fol-
lowed in determining the intent of the Legislature when it employed those
words, however, is not new. It is a well established rule of statutory con-
struction that words in a statute must be given their plain and ordinary
meaning. Madden' s Case, 222 Mass. 487; Dascalakis v. Commonwealth,
244 Mass. 568, 570; Sai/les v. Commissioner of Corporations and Taxation,
286 Mass. 102; Gallagher v. Wheeler, 292 Mass. 547; Commissioner of
Corporations and Taxation v. Chilton Club, 318 Mass. 285; Johnson's
Case, 318 Mass. 741; Commonwealth v. Slome, 321 Mass. 713.
But in Watson v. Loyal Union Life Association, 143 Okla. 4, at page 5,
the court stated:
"A person is ordinarily not considered over 55 years of age until he
arrives at the age of 56. It may safely be said that it is universally so
understood, and it occurs to us that this must have been the sense in
which the language was used by the Legislature."
In view of the foregoing, it is my opinion that a contestant is not to be
deemed "over thirty-five" within the meaning of G. L. (Ter. Ed.) c. 147,
P.D. 12. 29
§ 39, as air.pnded, until he arrives at the age of thirty-six. This conclusion
is in accord with the in4(Mj)retation placed upon similar j)hi-ascs in other
juiisdictions. Neio York Life Ins. Co. v. Federal National Bank of Shawnee,
143 F. (2) 69, (CCA, 10); Allen v. Baird, 208 Ai-k. 975; James v. Colonial
Mutual Life Association, 7 Cal. App. (2) 748; Wilson v. Mid-Continental
Life Insurance Company of Oklahoma City, 159 Okla. 191.
The interpretation here placed upon G. L. (Ter. Ed.) c. 147, ?. 39, as
amended, is not intended to be applicable to other statutes which may be
affected l)y different rules of statutory consti'uction.
^'ery truly yours,
Francis E. Kelly, Attorney General.
Refirendani Petition — Constitution — Excluded Matters — Old Age As-
sistance — ^^ Leisure Time Activities.'^
Oct. 26, 1949.
Hon. Edw.\rd J. Cronin, Secretary of the Commonwealth.
Dear Sir: — You have presented to me a referendum petition, filed
at your office by its original signers, seeking the repeal of section 2 of
St. 1949, c. 796, and you request my opinion as to whether or not the
subject matter of said petition is a proper matter for inclusion on the
ballot at the State election in 1950.
Chapter 796 of the Acts of 1949 amends section 1 of G. L. (Ter. Ed.)
c. 118A. Chapter 118A is entitled "Adequate assistance to certain aged
citizens." Chapter 796 provides in section 1 that "each local board of
public welfare shall include in the budget of each recipient an item, to be
known as 'Leisure Time Activities,' under which there shall be paid to
each recipient" the sum of four dollars monthly in addition to other
payments authorized by chapter 118A, section 1. The 1949 act in its
section 1 further provides that cities and towns making payments of four
dollars per month to recipients under its terms "shall be reimbursed by
the commonwealth to the full amount thereof, notwithstanding any other
provision of law."
Chapter 796 in section 2, the section which is sought to be repealed by
the proposed referendum, provides as follows;
"The provisions of chapter sixty-four C of the General Laws, imposing
an excise on cigarettes shall, so far as apt, apply to cigars, and to tobacco
sold otherwise than in the form of cigarettes or cigars, except that the
excise on cigars and such tobacco shall equal ten per cent of the retail
price thereof. All revenue received under this section shall be credited
to the old age assistance fund."
It is my opinion that the proposed petition does not ask for a referendum
to the people upon a law enacted by the General Court which is not ex-
pressly excluded under Mass. Const. Amend. XLVIII, The Referendum,
Pt. Ill, § 2. The subject matter of the said referendum petition, there-
fore, is not proper for inclusion on the ballot at the State election in 1950.
Very truly 3^ours,
Francis E. Kelly, Attorney General.
30 P.D. 12.
Special Justices — Number allowed Central District Court of Worcester.
Oct. 26, 1949.
His Excellency Paul A. Dever, Governor of the Commonwealth.
Sir : — You have requested my opinion on the question of the determi-
nation of "the number of special justices to which the central district
court of Worcester may be entitled, if any."
In my opinion, by virtue of St. 1947, c. 588, § 2, provision is made for
abolishing both the special justiceships in the central district court of
Worcester, the then existence of which is recognized by section 1 thereof,
upon the occurrence of vacancies therein after the effective date of St. 1947,
c. 588. It is also my opinion that the enactment of St. 1949, c. 731, does
not affect the operation of section 2 of St. 1947, c. 588.
St. 1941, c. 611, amending G. L. (Ter. Ed.) c. 218, § 6, provided that
each district court, except the municipal court of the city of Boston,
should consist of one justice and one special justice. Section 2 of the act
provided, however, that the enactment thereof should not affect the tenure
of office of any special justice in office upon its passage, and provided
that no vacancy in said office in any district subject to the act should be
filled at any time when there was one special justice of such court in office.
St. 1947, c. 588, amended G. L. (Ter. Ed.) c. 218, § 6, to provide that the
central district court of Worcester should be excepted from the provision
as to district courts generally and that it should consist of two justices and
two special justices. Section 2 of said statute provided, however, that
notwithstanding the provisions of section 1, no vacancy in the office of
special justice in the central district court of Worcester occurring after the
effective date of the act should be filled.
The effect the Legislature intended these statutes to have is clear from
an examination and consideration of them in their entirety. St. 1941,
c. 611, was intended to have and had the effect of abolishing all special
justiceships in district courts in excess of one for each court, the excess
offices to be abolished in the order of vacancies occurring therein. St.
1947, c. 588, was intended to have and had the effect of providing for an
additional permanent justice in the central district court of Worcester and
of abolishing both the then existing special justiceships therein as vacancies
should occur.
The first statute contains a section purporting to abolish certain special
justiceships, which is followed by a section providing for a limited con-
tinuance of existence of all the special justiceships then filled and a plan
for their future abolishment when vacancies occur. In the second statute
the reverse of that procedure is followed: section 1 recognizes the then
existence of two special justiceships in the central district court of Worces-
ter, and section 2, by forbidding future appointments to such offices as
vacancies occur, provides for their eventual abolishment.
St. 1949, c. 731, to which your letter refers, is "An Act establishing the
number of justices and special justices of the district court of Springfield."
It contains no indication of any legislative intention to effect a change in
the situation regarding special justices in the central district court of
Worcester by impliedly repealing section 2 of St. 1947, c. 588. Repeals by
implication are not favored in the law and a statute is not construed to
repeal a prior statute unless the intent to do so is clear. Inspector of Build-
P.D. 12. 31
ings of Falmouth v. General Outdoor Advertising Co., 264 Mass. 85. It is a
well-established rule of statutory construction that "a statute is not to be
deemed to repeal or supersede a prior statute in whole or in part in the
absence of express words to that effect or of clear implication." Hinckley
V. Retirement Board of Gloucester, 316 Mass. 496, at page 500. It was stated
in Walsh v. Commissioners of Civil Service, 300 Mass. 244, at page 246:
"A statute is to be interpreted with reference to the pi-e-e.\isting law.
Brown v. Robinson, 275 Mass. 55, 57. Lowell Co-operative Bank v. Dafis,
276 Mass. 3, 7. If reasonably practicable, it is to be explained in conjunc-
tion with other statutes to the end that there may be an harmonious and
consistent body of law. Morse v. Boston, 253 Mass. 247, 252. Kelley v.
Jordan Marsh Co., 278 Mass. 101, 111. Statutes 'alleged to be inconsistent
with each other, in whole or in part, must be so construed as to give reason-
able effect to both, unless there be some positive repugnancj^ between
them.' Brooks v. Fitchhurg ct- Leominster Street Railway, 200 Mass. 8, 17."
It is apparent that the provisions of section 2 of St. 1947, c. 588, which
are not expressly repealed by St. 1949, c. 731, and which so far as would
appear from that latter statute the Legislature had no intention to repeal
thereby, are no more inconsistent with the re-enactment of G. L. (Ter.
Ed.) c. 218, § 6, by said St. 1949, c. 731, than they were inconsistent with
the provisions of said section 6, as it was re-enacted by section 1 of St.
1947, c. 588; and the provisions of section 2 of St. 1947, c. 588, can stand
with section 6 as re-enacted as well now after the enactment of St. 1949,
c. 731, as the}^ could after the enactment of St. 1947, c. 588.
Very truly yours,
Francis E. Kelly, Attorney General.
Civil Service Rules — Veterans' Preference in Competitive Promotional
Examinations.
Oct. 27, 1949.
Mr. Thomas J. Greehan, Director of Civil Service.
Dear Sir: — You have requested my opinion relative to a civil service
rule recently adopted by the Civil Service Commission granting a two-
point preference to veterans in competitive promotional examinations in
the classified official service. The rule in question, after publication and
hearings, was approved by the Governor and Council as required by law
on August 30, 1949. The rule is an addition to existing Rule 21 of the Civil
Service Commission. Rule 21, to which the new provisions are added,
reads as follows:
"1. Promotions in the Classified Official Service shall be on the basis
of merit ascertained by examination and seniority of service."
K The addition to Rule 21 reads as follows:
"2. In competitive examinations for promotion to any position in the
Classified Official Service the Director shall add two points to the general
average mark obtained by any veteran, as defined in General Laws,
Chapter 31, Section 21, providing such veteran has first obtained a pass-
ing mark in said examination."
32 P.D. 12.
General Laws (Ter. Ed.) c. 31, § 3, as amended, authorizes the Civil
Service Commission to make rules of general or limited application, con-
sistent with law. Paragraph (g) of section 3 authorizes the commission to
make rules governing "preference to veterans in appointment and pro-
motions."
The mle in question, granting a two-point preference, relates only to
veterans who come within G. L. (Ter. Ed.) c. 31, § 21, as most recently-
amended, and who have taken and passed a competitive promotional ex-
amination as distinguished from veterans who have taken and passed an
open competitive examination for appointment covered by G. L. (Ter.
Ed.) c. 31, § 23.
The addition to the rule, having been approved by the Governor and
Council on August 30, 1949, does not become effective until November 10,
1949, under the provisions of G. L. (Ter. Ed.) c. 31, § 7.
You submit for my consideration three questions as follows:
1. Shall the two-point preference given in the rule be granted only to
veterans who take examinations on and after the effective date of the rule?
2. Shall the two-point preference given in the rule be granted only to
veterans whose names are placed on eligible lists on or after the effective
date of the rule?
3. Shall the two-point preference given in the rule be granted to all
veterans on eligible lists in existence on the effective date of the rule as
well as to veterans placed on eligible lists after the effective date of the
rule?
My answer to your first question is in the negative.
My answer to your second question is in the affirmative.
My answer to you third question is in the negative.
Very truly yours,
Francis E. Kelly, Attorney General.
Veterans' Benefits — Reimbursement to Cities and Towns.
Nov. 16, 1949.
Hon. Henry V. O'Day, Commissioner of Veterans' Services.
Dear Sir: — I have your recent letter in which you state that you
have received for approval an application for veterans' benefits from the
city of Cambridge by a veteran of World War II for the care of his mongo-
loid child at a State institution.
You also state that a similar case arose during the administration of my
immediate predecessor and that you were advised informally by four of
his assistants that you should reject the application on the ground that
where the Commonwealth was maintaining a State institution on a definite
yearly budget, State funds could not be paid for the charge of an inmate
of the institution even though he would otherwise be eligible for veterans'
benefits.
You have asked for my opinion as to what action you should take on the
application of the veteran from Cambridge. I am of the opinion that you
should accept this application for veterans' benefits.
The law with respect to "veterans' benefits" is different from that with
P.D. 12. 33
respect to ordinary ''public welfare." The former puts the veteran on a
higher plane, and justly so, because of his service to the Commonwealth
and the Nation. The veteran and/or his dependents are entitled to
"sufficient support" which, as a matter of practice, has developed into
something more than "welfare aid." We should interpret the law relating
to "veterans' benefits" liberally and in accordance with the real intent of
the Legislature to reward veterans for their sacrifices.
If a veteran has a feeble-minded child and the town of settlement con-
cludes that thirty dollars per week is needed to support both of them and
the veteran has sent his child to a private institution, the town pays thirty
dollars out of its treasury- to or for the veteran even though th(^ cost of
the child's care is sent directly by the town to the private institution. The
same result would occur if the veteran sent his child to a State institution.
If your department refuses to authorize the town to pay for the care of the
child at the State institution, you would be forcing the veteran to accept
aid for his child from the town's public welfare department. This would
be contrary to the intent of the Legislature, which was to reward the
veteran with a dignified "veterans' benefit" and to bolster his morale as
well as his finances.
It is significant that prior to the enactment of St. 1946, c. 584, the
method of granting aid was on the basis of "relief."
Section 5 of chapter 584 provides that no veteran shall be compelled to
receive benefits without his consent. There is greater reason, therefore,
for concluding that the Legislature does not want to force a veteran to
accept "public welfare" against his will.
Section 6 of chapter 584 specificall}^ provides that the Commonwealth
shall reimburse cities and towns for amounts expended for "veterans'
benefits." In the case mentioned above, the town is asking your approval
to expend a certain amount for a veteran's dependent child. The institu-
tion caring for the child will receive compensation for such care for the
account of the veteran. The kind of budget on which the State institution
is maintained has no relationship whatever to the statutory obligation of
the Commonwealth to reimburse cities and towns for furnishing "veterans'
benefits."
Very truly yours,
Francis E. Kelly, Attorney General.
Civil Service — Temyoranj Positions — Procuring of Oath from Employees
— Overtime,
Nov. 16, 1949.
Hon. Thomas H. Buckley, Commissioner of Administration.
Dear Sir: — I am in receipt of a communication from j^ou asking
for my opinion on five questions relating to the hiring by the Department
of Public Works, under St. 1949, c. 397, of laborers and chauffeurs for the
purposes and subject to the restrictions stated therein.
Your first question is:
"Does chapter 397 of the Acts of 1949 permit the hiring of temporary
laborers, chauffeurs and workmen without consideration being given to
34 P.D. 12.
the provisions of G. L. c. 30, § 46, as amended by St. 1948, c. 311, and
St. 1949, c. 406, whereby the salary of persons in the labor service as well
as the classified service shall be based upon the provisions of said section 46
giving credit to such person for years of service, step rate increases etc.?"
In my opinion, the provisions of St. 1949, c. 406, § 1, amending HU. L.
(Ter. Ed.) c. 30, § 46, as previously amended by St. 1948, c. 311, do not
apply to persons employed under the provisions of St. 1949, c. 397.
Statute 1949, c. 406, provides that in fixing the salary rate within a
salary grade, which persons reinstated or re-employed by the Common-
wealth shall be entitled to receive, such persons shall, or may, dependent
upon the time of such return, be credited with the period of their previous
service in the same salary grade.
Statute 1949, c. 397, exempts from the provisions of G. L. (Ter. Ed.)
c. 31, which regulate appointments to positions and offices in the State
service, the employment of laborers and chauffeurs by the State Depart-
ment of Public Works on a temporary basis, such employment not to
exceed a total of ninety days, "between November fifteenth and April
fifteenth to be used in connection with the removal of snow and the sanding
of slippery surfaces with the incidental work thereto on the highways of the
commonwealth ..." and "during and following a disaster or period of
extreme danger when and as authorized by the governor."
The employment of laborers and chauffeurs in the circumstances stated
can properly be described as employment in emergency; in the .situation
first described because of the frequent suddenness and unexpectedness
of severe winter storms and the unpredictability of the extent of inter-
ference with the use of highways from the combined operation of even
light precipitation and low temperatures, and the consequent requirement
for taking immediate action to protect the public safety; and in the latter
case from the nature of the events described, i.e. "disaster or period of
extreme danger."
The obvious legislative intention was to free the State Department
of Public Works from any hindrances or delays in the employment of
laborers and chauffeurs, in the event of such emergencies, which would
prevent the department from taking swift action to keep State highways
open and passable in the one case, or any action indicated in the case of a
disaster or period of extreme danger.
The Legislature in so exempting such positions has, in effect, declared
that the application of complicated procedures relative to public employ-
ment should not be permitted to interfere with and delay State officials
in such emergencies.
Positions which, because of the need for swift action to meet emergency
conditions are exempted from compliance with the requirements of the
civil service law, should not, if it is possible to do so, be held to be subject
to the provisions of statutes providing for salary graduated to period of
service, compliance with which similarly hinders prompt and effective
action.
This is particularly so when, as is the case here, with regard to such
emergency and temporary employment the purpose of the statutes regu-
lating salary by length of service can in no way, because of the nature of
the employment and the restrictions placed upon it by the Legislature, be
advanced or served by the application of the provision of such statutes to
such employment.
P.D. 12. 35
Statute 1949, c. 406, in so far as it has reference to the credit to be given
to persons reinstated or re-employed for previous service in the same
salary grade, while not expressly limited to persons reinstated or re-
employed on permanent appointments to permanent positions, for the
reasons stated, must be construed to be restricted by implication, to be of
application only to such appointments or to appointments whether on a
temporary or provisional basis to positions which either have permanent
status or at least are not, as arc the positions for which provision is made
in St. 1949, c. 397, positions employment in which is authorized only
imder emergency conditions and is limited to a stated number of days.
Your second question is :
"Does the employing unit employing such persons under authority of
St. 1949, c. 397, have to comply with the provisions of St. 1949, c. 619,
on which later law you have already given an opinion to the Secretary of
the Commonwealth on September 29, 1949 and, if so, when must such
oath be procured from prospective employee?"
In answer to your second question, my opinion is that the Department
of Public Works, in emploj-ing persons under the provisions of St. 1949,
c. 397, must comply Anth the provisions of St. 1949, c. 619, and the oath
required thereby must be taken by the person so employed before he enters
upon the discharge of his duties.
To a great extent the considerations adverted to with relation to your
first question, as indicating the non-applicability of the salary statute
there considered with reference to employment under St. 1949, c. 397,
would also indicate the non-applicability to such employment of St. 1949,
c. 619. However, it is to be noted that one section of the act would forbid
the emploj'ment of the persons described "in any capacity by the com-
monwealth," and the inclusion of this specific provision, in my opinion,
requires the conclusion that the provisions of St. 1949, c. 619, are appli-
cable to employment under St. 1949, c. 397, and it is expressly required
that the oath referred to therein shall be taken by a person entering the
employ of the Commonwealth, "before entering upon the discharge of
his duties."
Your third question is:
" Does chapter 397 of the Acts of 1949 mean 90 days of 8 or 24 hours'
duration?"
The answer to your third question is that the days referred to are cal-
endar days of twenty-four hours' duration.
Your fourth question is:
"What effect sections 30 and 30A of G. L. (Ter. Ed.) c. 149 have on
the employment of any persons employed under St. 1949, c. 397?"
In my opinion, the effect of section 30A is not to prohibit the employ-
ment of persons included therein for periods exceeding the limits stated
even in non-emergency situations, if such employment is otherwise neces-
sary, provided they are not, if no emergency exists, employed in violation
of section 30, and such employees are entitled to be compensated for their
overtime work. The effect of section 30 is to prohibit the employment
of persons in the service of the Commonwealth for periods beyond those
stated therein "except in case of emergency."
36 P.D. 12.
As stated above, the nature of the work under St. 1949, c. 397, can prop-
erly be described as emergency work. It is conceivable that as to some
persons employed under the provisions of chapter 397, at some time dur-
ing their employment, it could be said that their service while still within
the statute was not under conditions of emergency, or perhaps even such
as not to make overtime work necessary. If and when such situations
occur will be dependent almost wholly upon the determination of the
Commissioner of Public Works and will involve questions of fact and not
of law. The Attorney General does not pass upon questions of fact.
Your fifth question is:
''Does employing unit have to clear through the Civil Service Depart-
ment and the Division of Personnel and Standardization to satisfy the
provisions of G. L. c. 30, § 46, as amended, and G. L. c. 149, §§30 and
30 A, as amended?"
So far as this question is not already answered, I am of the opinion
that, the provisions of the civil service law being inapplicable to the em-
ployment, there is no occasion for reference of any appointments there-
under to the Civil Service Department. As regards the Division of Per-
sonnel and Standardization, to the extent that the provisions of G. L.
(Ter. Ed.) c. 30, § 46, as amended, are applicable, and they are clearly
applicable so far as concerns the allocation of positions under St. 1949,
c. 397, to proper classifications and salary grades, action to that end must
be sought by the department from the division. Under G. L. (Ter. Ed.)
c. 149, § 30A, as amended, the rules thereby authorized to be promulgated
by the Commission on Administration and Finance will govern in so far
as compensation for overtime work is concerned.
Very truly yours,
Fr.\ncis E. Kelly, Attorney General.
Veterans^ Services — Paraplegic Veteran — Domicile.
Dec. 7, 1949.
Hon. Henry V. O'Day, Commissioner of Veterans' Services.
Dear Sir: — You have recently requested my opinion regarding the
appHcation of St. 1949, c. 660, to a veteran who enlisted in the United
States Army from Massachusetts and during World War II received in-
juries to his spine resulting in total disability, and is so rated bj^ the Vet-
erans' Administration. You also state that the veteran concerned intends
to take a temporary residence in Florida from November first until the
April first following because of the warm and healthful climate there.
Statute 1949, c. 660, relates to annuities to certain paraplegic veterans,
and defines a veteran as "any person who served in the military or naval
forces of the United States during any war in which the United States
was engaged, who was a resident of this commonwealth at the time he was
inducted into such forces and whose discharge or release therefrom was
other than dishonorable, and who has continued to be a resident of this
commonwealth."
You wish to know whether the above described veteran will still be a
P.D. 12. 37
resident so a.s to entitle him to continue receiving the benefits provided by
law. My answer is in the affirmative.
"Residence" is a word of varied meanings, ranging from domicile down
to personal presence with some slight degree of permanence. Rummel v.
Peters, 314 Mass. 504, 511. Its meaning will depend upon the connection
in which it occurs and the result to be accomplished by its use. In com-
mon speech "reside" expresses the same idea as to live, dwell, abide, in-
habit, have one's home, or possess a domicile. Marlborough v. Lynn, 275
Mass. 394.
In Commonwealth v. Sican, 1 Pick. (18 jMass.) 194, a statute provided
that the commanding officer of a company shall enroll for militia duty
citizens "who shall come to reside within his bounds." The court held
that the Legislature intended to enroll only those who were domiciled at a
place. To the same effect are Sleeper v. Paige, 15 Gray (81 Mass.) 349;
Cloflin V. Peach, 4 ISIetc. (45 Mass.) 392; Plymouth v. Kingston, 289 .Mass.
57.
Leaving the Commonwealth and taking a temporary residence in another
State for several months for one's health is not acquiring a new domicile.
Absence from an established domicile for a particular purpose does not
change the domicile if the residence in the new location is not accompanied
with a fixed purpose to remain indefinitely and with an intention not to
return to the former home. Plymouth v. Kingston, 289 Mass. 57.
It is therefore clear that the veteran above described retains his domicile
in this Commonwealth and is entitled to the benefits under the statute.
Very truly yours,
Francis E. Kelly, Attorney General.
Slate Secretary — Contracts with National Office of Vital Statistics.
Dec. 8, 1949.
Hon. Edward J. Cronjn, Secretary of the Commonwealth.
Dear Sir : — You have asked my opinion whether it is proper for the
Secretary of the Commonwealth, as an individual, or for some person
designated by the Secretar}'-, as he is head of the department, as an individ-
luil, to enter into a contract with the National Office of Vital Statistics to
furnish transcripts of the records of deaths, births and stillbirths which
occur within the Commonwealth. You further ask whether it is proper
for persons doing the clerical work under such a contract to perform their
duties at the State House in quarters assigned to the Secretary of the Com-
monwealth.
You inform me that the Federal Government, through the National
Office of Vital Statistics, United States Public Health Service, Federal
Security Agency, for many years has been compiling vital statistics from
transcripts of the records made in the several States. This is accomplished
by a contract between the United States and a department, a department
head, or a person designated by such department head in each State. The
Federal agency requires complete information on all births, deaths and
stillbirths; sample death reports monthly on ten per cent of the death
certificates; and special reports on deaths in which motor vehicle accidents
38 P.D. 12.
are involved. The source of this information in Massachusetts is the Divi-
sion of Vital Statistics, and access to the records of that division is an
essential feature of the undertaking. The contract price paid by the
United States is fixed by law at four cents per death transcript and three
cents for each birth or stillbirth certificate. All forms are supplied by the
Federal Government, and all office supplies and postage are paid for by the
contracting party.
That the Secretary of the Commonwealth "as an individual" does not
possess any greater rights than those of the ordinary private citizen is
fundamental in our system of government. Mass. Const., pt. 1st, art. VI.
Attorney General v. Tufts, 239 Mass. 458, 500. The same may be affirmed
of a person designated by the Secretary, as he is head of the department,
"as an individual." It is evident that a person so designated is afforded
no official standing by reason of the designation. The question presented,
therefore, is resolved into whether a person without official standing can
enter into and perform such a contract with the Federal agency.
The answer to this question depends upon the nature of the records to be
copied for the National Office of Vital Statistics. General Laws (Ter. Ed.)
c. 46, §^1 and 17, require that a record of births, deaths and marriages in
Massachusetts be kept by the State Secretary. Whether or not such record
is public is not expressly provided. General Laws (Ter. Ed.) c. 4, § 7, cl. 26,
provides that :
"'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 emploj^ee of the com-
monwealth 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 pub-
lic records made by photographic process as provided in section three of
said chapter."
Furthermore, G. L. (Ter. Ed.) c. 66, § 10, provides that:
"Every person having custody of any public records shall, at reasonable
times, permit them to be inspected and examined by any person, vmder his
supervision . . . ."
As a general rule, this right to inspect records cannot be confined to
certain selected entries but extends to the inspection in proper time and
manner of all the records, if that is desired. The right to inspect commonly
carries with it a co-extensive right to make copies. Direct-Mail Service v.
Registrar of Motor Vehicles, 296 Mass. 353, 356, 357.
But it is clear that no such general right to inspect or correlative right
to make copies exists as to the records of births, marriages and deatlis kept
by the State Secretary. Inspection of such records is expressly limited by
the following provision of G. L. (Ter. Ed.) c. 46, § 2A:
"Examination of records and returns of illegitimate births, or abnormal
sex births, or of the notices of intention of marriage and marriage records
in cases where a physician's certificate has been filed under the provisions
of section twenty A of chapter two hundred and seven, or of copies of such
records in the office of the state secretary, shall not be permitted except
P.D. 12. 39
upon proper judicial order, or upon request of a person seeking his own
birth record, or his attorney, parent, guardian, or conservator, or a person
whose official duties, in the opinion of the town clerk or state secretary, as
the case rasiy be, entitle him to the information contained therein, nor shall
certified copies thei-eof be furnished except upon such order, or the request
of such person."
Similar intent to confine the examination of such records to parties
immediately concerned and to persons performing official duties is to be
found in sections 12, 1.3 and 24 of the same chapter.
It follows, therefore, that to permit a private contractor to examine the
records of all births in the Commonwealth, which are under the supervision
of the State Secretary, would involve a violation of G. L. (Ter. Ed.) c. 46,
§ 2A. Hence, the answer to the first question proposed is in the negative
as to your entering into the contract in yom- individual capacity, and in
the affirmative as to entering into the contract in your official capacity.
This would seem to eliminate the necessity of answering the second
question.
As to your third question, it is my opinion that all moneys received from
the Federal Government, through the National Office of Vital Statistics,
for the work performed in your department under the contract made by
you in your official capacity as State Secretary should be deposited as a
whole with the Treasurer and Receiver General of the Commonwealth, and
payments made therefrom only in the ordinary and usual course of trans-
acting public business.
The effect of this opinion, however, is not to deprive the National Office
of Vital Statistics of valuable statistical and public health reports. It
would appear that ample authority is conferred by G. L. (Ter. Ed.) c. 262,
§§ 36 and 37, upon the State Secretary acting in his official capacity to
furnish the required information at the rate paid by the Federal Govern-
ment.
Very truly yours,
Fr.\ncis E. Kelly, Attorney General.
Registration in Medicine — Qualifications — Certificates of — Standards for
Examination.
Dec. 9, 1949.
Mr. William H. J. Rowan, Director of Registration.
Dear Sir : — You have recently asked my opinion as to whether the
Board of Registration in Medicine could legally enter into a reciprocal
written agreement with the board of medical examiners of another State
under St. 1946, c. 365.
General Laws (Ter. Ed.) c. 112, § 2, provides for the examination and
registration of physicians. To be entitled to be examined the applicant
must (1) be over twenty-one years of age, (2) be of good moral character,
(3) possess the educational qualifications for graduation from a public high
school, (4) have completed two years premedical collegiate work at an
approved college or university, and (5) have attended for four years, and
received a medical degree from, an approved medical school.
40 P.D. 12.
Statute 1946, c. 365, amends section 2 by adding a paragraph which
provides that the Board of Registration in Medicine may without examina-
tion grant certificates of registration as quaUfied physicians to those who
offer satisfactory proof that they have the quahfications required by this
Commonwealth to entitle them to be examined, and also proof that they
have been licensed or registered on a written examination in another State
whose standards are equivalent to those of Massachusetts.
Our Legislature has determined who may be registered to practice
medicine by establishing certain standards and requiring certain qualifi-
cations. The Legislature has delegated to a certain board discretion to
determine whether applicants have met these standards and possess the
required qualifications. The board is by law required to exercise its dis-
cretion and no contract would be needed for this purpose. The board
cannot go beyond or exceed its discretion, and therefore it cannot by con-
tract bind itself to do so.
My answer to your question is, therefore, in the negative.
Very truly yours,
Francis E. Kelly, Attorney General.
Public Welfare — Domicile — Illegitimate Child.
Dec. 13, 1949.
Hon. Patrick A. Tompkins, Commissioner of Public Welfare.
Dear Sir: — You have recently requested my opinion as to the inter-
pretation of G. L. (Ter. Ed.) c. 210, § 1, as amended, under the circum-
stances hereinafter described. Said statute provides:
"A person of full age may petition the probate court in the county
where he resides for leave to adopt as his child ... If a person not an
inhabitant of this commonwealth desires to adopt a child residing here,
the petition may be made to the probate court in the county where the
child resides."
Your question relates more particularly to the final sentence of the
statute. You wish to know whether adoption could be granted in the
following situations :
(1) An unwed mother domiciled in Massachusetts takes her child to
another State to live and there delivers the child to a couple, who keep the
child at their home in that State for over six months, but because of
difficulties in securing adoption at their domicile the couple bring the
child to this Commonwealth and seek adoption here in the county where
the child was born.
(2) An unwed mother domiciled in Massachusetts remains here but
delivers her child to a non-resident couple, who take the child to their
domicile where the child lives at their home for over six months. Because
of difficulties in securing adoption at their domicile the couple bring the
child to this Commonwealth and seek adoption here in the county where
the child was born.
(3) A legitimate child is taken by its locally domiciled parents to
another State to live and there delivered to a couple, who proceed as in
(1) above.
P.D. 12. 41
(4) A legitimate child is delivered by its locally domiciled parents, who
remain in the Commonwealth, to a non-resident couple, who take the
child to their home and proceed as in (2) above.
Our first problem is to ascertain what the Legislature meant by "resi-
dence" in this particular statute. "Residence" is a word of varied mean-
ings, ranging from domicile to personal presence with some slight degree
of permanence. Rummel v. Peters, 314 Mass. 504, 511. Its meaning will
depend upon the connection in which it occurs and the result to be accom-
plished by its use. In common speech "reside" expresses the same idea
as to live, dwell, abide, inhabit, have one's home, or possess a domicile.
But one may have a residence in a place for business, pleasure, or health;
and yet have a domicile or home elsewhere. Yet it means something
more than a mere visit or fleeting stay. It imports something of expected
permanence in the way of personal presence. Marlborough v. Lynn, 275
Mass. 394.
The following cases illustrate the different shades of meaning.
In Commonwealth v. Swan, 1 Pick. (18 Mass.) 194, a statute provided
that the commanding officer of a company shall enroll for militia duty
citizens "who shall come to reside within his bounds." The court held
that the Legislature intended to enroll only those who were domiciled at
a place and not those who have only a temporary residence.
In Claflin v. Beach, 4 Mete. (45 Mass.) 392, a statute provided that in-
solvent debtors may apply for relief "to the judge of probate for the
county within which he resides." The court held that "resides" means
"domiciled."
In Sleeper v. Paige, 15 Gray (81 Mass.) 349, a statute provided that if,
after a cause of action accrued, the debtor shall be absent from and reside
out of the State, the time of his absence shall not be included in the run-
ning of the statute of limitations. The court held that "reside" was the
equivalent of "domicile."
In Plymouth v. Kingston, 289 Mass. 57, a statute relating to settlements
used the words "failure ... to reside." The court held that in laws
relating to taxation, voting and settlements, the word "residence," in the
absence of a contrary legislative intent, has always been interpreted as the
equivalent of the word "domicile."
In Jenkins v. North Shore Dye House, Inc., 277 Mass. 440, a statute pro-
vided that a non-resident was any resident of another State. The court
held that "residence" in general meant personal presence in some place
of abode with no present intention of definite and early removal, not in-
frequently but not necessaiily combined with a desire to stay perma-
nently. The court here construed "residence" as something less than
"domicile."
In Doyle v. Goldberg, 294 Mass. 105, a statute provided that an applica-
tion for the registration of a motor vehicle shall contain "a statement of
the name, place of residence and address of the apphcant." The court
held that one of the purposes of this statute was to provide an easy means
of identification of the automobile and its owner. "Residence," there-
fore, did not mean "domicile." Although a person could have only one
domicile, yet he might have more than one residence for the purposes of
this statute. To the same effect is Russell v. Holland, 309 Mass. 187.
In Martin v. Gardiner, 240 Mass. 350, a statute provided that the pro-
bate court may appoint guardians of minors who are inhabitants of or
residents in the county. In this case the petitioners sought guardianship
42 P.D. 12.
of a child born in New Hampshire of parents domiciled there. The par-
ents left the child at an orphanage, from which it was taken when ill to a
hospital in New Hampshire. By mistake the child was recorded at the
hospital as of unknown parentage. The petitioners took the child from
the hospital to this Commonwealth, where the child lived with them for
nine months prior to the petition for guardianship. The court held that
the present statute had for years been construed to authorize the appoint-
ment of guardians of minors residing within the ( 'ommonwealth though
not domiciled here, and that although the child's domicile was New
Hampshire, that of its father, the child could be found to have been a
resident of Massachusetts.
In Wachusett National Bank v. Fairhrother, 148 Mass. 181, a statute
provided that the holder of a note must give notice of dishonor to the
endorser at his place of business or residence. The court held that in the
law of negotiable instruments the word "residence" is not used as im-
plying a permanent, exclusive or actual abode in a place, but may be
satisfied by a temporary, partial or even constructive residence.
A statute, however, which gives our courts the right to change the status
of residents contemplates domiciliary jurisdiction. It is a general principle
that the status or condition of a person, the relation in which he stands to
another person, is fixed by the law of the domicile. Ross v. Ross, 129 Mass.
243, 246.
Although the case of Martin v. Cardiner, 240 Mass. 350, above referred
to, involved a change of status, yet that case was decided on historical
and other grounds mentioned in the decision. Furthermore, the law of
the domicile of the parties is generally the rule which governs the creation
of the status of a child by adoption. Foster v. Waterman, 124 Mass. 592.
The Legislature is therefore presumed to have intended the word "resi-
dence" in the adoption statute to be synonymous with "domicile";
because a statute is to be interpreted with reference to the pre-existing
law. Lowell Co-operative Bank v. Dafis, 276 Mass. 3, 7.
The court may change the status of resident petitioners toward a child
that is brought within the physical jurisdiction of the court; as well as
the status of a resident child to non-resident petitioners who bring them-
selves within the jurisdiction of the court by filing their petition. Stearns
V. AUe7i, 183 Mass. 404, 407.
In the Stearns case the petitioners were domiciled in this Common-
wealth and the child had lived here with her mother, though her father
was domiciled in Scotland. The court said that if the child is actually
dwelling here the State may as well provide for her adoption as to give her
protection in other ways. This case, however, should not be considered
as an authority for the proposition that non-resident petitioners may
adopt a child who is not domiciled here.
In the light of the above cases let us examine situation (1). An illegiti-
mate child is nullius filius, yet it must have a domicile. Its domicile of
origin would remain until changed. A domicile once established cannot
be lost until a new one is in fact acquired. Plymouth v. Kingston, 289
Mass. 57.
To provide for the support and education of an illegitimate child, its
mother has the right to custody and control as its natural guardian.
Wright v. Wright, 2 Mass. 109.
The mother has dou})tless all the rights of other parents, Purinton v.
Jamrock, 195 Mass. 187, 199.
P.D. 12. 43
An illegitimate child cannot gain a settlement independent of its mother,
who has custody and control. Somerset v. Dighlon, 12 Mass. 383, 386.
The conclusion is therefore inescapable that if the mother left the Com-
monwealth with the child and acquired a new domicile elsewhere, the child
was not a resident of this Commonwealth within the intent of G. L. (Ter.
Ed.) c. 210, § 1. The child could not become such a resident merely by
being brought here for the purpose of adoption.
If, however, the mother did not forsake the Commonwealth but merely
went to another State to seek a good home for h(U' child and deliverc^d the
child to a couple "on approval," the child's domicile could be found to be
here and adoption granted. Whether a new domicile has been acquired
becomes a question of fact. Absence from an established domicile for a
particular purpose does not change the domicile if the residence in a new
location is not accompanied with a fixed purpose to remain there indef-
initely and with an intention not to return to the former home. Plymouth
V. Kingston, 289 Mass. 57.
General Laws (Ter. Ed.) c. 210, § 5A, would not be an obstacle because
that section only requires that the child shall have resided in the home
of the petitioners for six months. This section does not require that the
home shall have been in any particular State. The word "resided" here
merely means "live with."
In situations (2), (3) and (4) we would have the same result. If a minor
leaves his domicile of origin with the consent of his guardian and takes a
new home permanently with one who assumes the minor's care, the minor
has acquired a new domicile. Kirkland v. Whatelij, 4 Allen (86 Mass.)
462; Cummings v. Hodgdon, 147 Mass. 21. 22.
Very truly yours,
Francis E. Kelly, Attorney General.
Private Trade Schools — License — Electric Current in Hair Removal.
Dec. 19, 1949.
Hon. John J, Desmond, Jr., Commissioner of Education.
Dear Sir : — You have recently asked my opinion interpreting the
effect of St. 1941, c. 583, under the circumstances hereinafter described.
You state that a school proposing to teach the practice of electrolysis
(defined by you as hair removal by means of an electric current) has ap-
pUed to the State Department of Education for a license to operate as a
private trade school under chapter 583. You also state that a committee
appointed by the Massachusetts Medical Society recommended that
schools of electrolysis should not be licensed. You wish to know whether
such a school may be licensed as a trade school.
General Laws (Ter. Ed.) c. 93, as amended by St. 1941, c. 583, provides
that no person shall operate a private trade school unless licensed to do
so by the Commissioner of Education, who shall not issue a license until
he shall approve the proposed standards adopted, the methods of instruc-
tion to be followed, the equipment and housing, the training and experi-
ence of teachers, and the form of enrollment agreement with students.
The reasonableness of the refusal to grant a license is reviewable by the
Superior Court. The statute defines a private trade school (with certain
44 P.D. 12.
exceptions not here material) as one maintained or conducted for the pur-
pose of teaching any trade or industrial occupation for profit or for a
tuition charge.
"Trade" means an occupation or pursuit requiring some manual or
mechanical dexterity. "Electrolysis" means chemical decomposition by
the action of an electric current. This activity is referred to in G. L.
(Ter. Ed.) c. 112, as most recently amended by St. 1943, c. 565, which
defines hairdressing as treating the hair of a female in a certain manner
but not including the removal of superfluous hair or skin blemishes by
direct application of an electric current.
The removal of such hair and blemishes is a needful service and activity
and should be permitted to function under strict supervision. If we con-
sider the practice of electrolysis as closely allied to the medical field, there
is greater reason to permit the functioning of schools which teach the art
and thus develop persons competent to practice it. We can see from the
provisions of St. 1941, c. 583, that a school licensed thereunder would be
subject to the most rigid rules before it could operate.
At present there are people engaged in the practice of electrolysis with-
out any supervision being required by law, and if no license were granted
to a school to teach this art the health and safety of the public would be
less protected.
Very truly yours,
Francis E. Kelly, Attorney General.
Wife of Veteran, also Veteran in Own Right, entitled to Veterans' Benefits
apart from Husband's Right.
Feb. 28, 19.50.
His Excellency the Governor and the Honorable Council.
Sirs : — You have recently asked my opinion interpreting the effect of
G. L. (Ter. Ed.) c. 115, as amended, under the circumstances hereinafter
described.
Section 4 of chapter 115 provides: "Every application for veterans'
benefits shall be in WTiting, signed by the applicant . . . and shall contain
a statement of . . . his relationship to the veteran upon whose wartime
service his application is based ..."
Section 5 of chapter 115 provides: "Veterans' benefits shall be paid to a
veteran or dependent by the city or town in which he has a settlement, or,
if he has no settlement in any city or town within the commonwealth, by
the city or town wherein he resides ..."
"Veteran" is defined in section 1 of chapter 115 as any person, male or
female, who served in the military forces of the United States during cer-
tain wars in which the United States has been engaged.
"Dependent" is defined in section 1 as the wife, widow, child, mother or
father of a veteran.
Under certain circumstances described in section 5 benefits are denied as
appears in the following clause: "No veterans' benefits shall be paid . . .
to or for any veteran who wilfully refuses and neglects to support his de-
pendents nor to or for anj^ dependents of such veteran."
In substance the facts as gathered from the documents attached to your
P.D. 12. 45
request are as follows: A woman served as a Wave in World War II. Her
husband, also a veteran, deserted her and their two children, leaving them
destitute. She thereafter filed an application for v^eterans' benefits in her
own right. Pier application was rejected by the local veterans' agent, but
on appeal to the Commissioner of N'^eterans' Services her application w^as
granted. In accordance with the provisions of section 2 of chapter llo the
veterans' agent has appealed the commissioner's decision to the Governor
and Council.
You therefore ask me two questions:
(1) Whether or not the wife of a veteran, who is also a veteran in her
own right, is entitled to veterans' benefits, where the husband is not so
entitled.
(2) Whether or not the wife of a veteran, w^ho is also a veteran in her
own right, is to be classified as a dependent and thereby be made ineligible
to be paid such benefits.
A statute must be interpreted according to the legislative intent appear-
ing from the language thereof in connection with the subject matter and
the object to be accomplished. National Fire Insurance Co. v. Goggin, 267
Mass. 430, 436; Kneeland v. Emerton, 280 Mass. 371, 376.
A strictly literal construction of a statute should not be adopted if the
result will be to thwart or hamper the accomplishment of the obvious pur-
pose of the statute, and if another interpretation is possible which will not
have that effect. Frye v. School Committee, 300 Mass. 537; Cullen v.
Mayor of Newton, 308' Mass. 578.
In enacting the statute in question the Legislature undeniably intended
to reward in suitable measure those men and w^omen w^ho answered their
country's call for military service in time of war. Clearly, the Legislature
contemplated that female veterans might either be married to veterans
during their service or become married to veterans after the conflict was
over. It is also obvious the Legislature did not intend to deny benefits to a
female veteran otherwise qualified merely because of the accident of being
married to an unworthy person who is also a veteran. To do so would lead
to the absurd result that a female veteran married to a slacker could receive
benefits, but if married to a war hero who later deserted her she could not
receive benefits. An intention to accomplish an absurd result is not to be
attributed to the Legislature unless clearly required by the language of the
statute. Petition of Curran, 314 Mass. 91.
The statutor}^ provision denying benefits to a veteran or his dependents
in case the veteran wilfully refuses or neglects to support his dependents
does not alter the situation. It is true that a husband has the primary
duty to support his wife and children. They are his dependents and if he
fulfills this obligation he may select the home and domicile of his family.
Somerville v. Commonwealth, 313 Mass. 482, 485. Whenever, however,
he deserts his family, his wife has the right to establish her own domicile
and that of the children left in her care. Rolfe v. Walsh, 318 Mass. 733,
735. She is on her own. A woman w^ho keeps her family together and
supports them has much the same responsibility for their education and
maintenance as is imposed upon a father. See Horgan v. Pacific Mills,
158 Mass. 402, 404. The Legislature also recognizes the duty of a mother
to support her children. Sec G. L. (Ter. Ed.) c. 273, § 1, as to children
under si.xteen.
In a sense they are still the deserter's dependents and he can be forced
to support them if they can locate him and prove he has the means to do so.
46 P.D. 12.
Smith's Case, 322 Mass. 186, 188. This dependency, however, has now
become more remote than the immediate dependency of the deserted wife
and children upon their own efforts. Our General Court never intended to
desert a female veteran under such circumstances.
Furthermore, under the definition of "dependent" in section 1, children
of the woman veteran would clearly be her dependents. An application
for benefits based upon her wartime service would be lawfully appropriate.
It would then be absurd to conclude that the Legislature intended to
give benefits to the children derivatively through their mother, but none
to her.
I therefore answer your first question in the affirmative and your second
question in the negative.
Very truly yours,
Francis E. Kelly, Attorney General.
Public Health Regulations — Local Boards may set Standards Higher than
Required Minimum.
Feb. 28, 1950.
Vlado a. Getting, M.D., Commissioner of Public Health.
Dear Sir : — You have recently asked my opinion regarding the effect
of St. 1947, c. 631, § 2, amending G. L. (Ter. Ed.) c. Ill, § 128, as previously
amended, in its relation to section 31 of chapter 111.
The 1947 amendment directs the Department of Public Health to make
regulations to establish minimum standards of fitness for human habitation.
These regulations become effective upon acceptance by a city or town.
Section 31 of chapter 111 provides that "boards of health may make
reasonable health regulations."
You seek to know whether the 1947 amendment (if accepted) prevents
local boards of health from making regulations which set higher standards.
If reasonably practicable, a statute is to be explained in conjunction
with other statutes to the end that there may be an harmonious and con-
sistent body of law. Morse v. Boston, 253 Mass. 247, 252; Kelley v. Jordan
Marsh Co., 278 Mass. 101, 111. Statutes alleged to be inconsistent with
each other, in whole or in part, must be so construed as to give reasonable
effect to both unless there be some positive repugnancy between them.
Brooks V. Fitchburg, etc., Ry., 200 Mass. 8, 17.
The different sections of chapter 111 should be construed as portions
of an harmonious and practical system of legislation designed to protect
the pubhc health. Maiden v. Flynn, 318 Mass. 276, 278.
The power to make reasonable health regulations is a broad power.
Brielman v. Commissioner of Public Health, 301 Mass. 407, 409. The
establishment of minimum standards by the 1947 amendment does not
infringe upon this broad power. Different localities and different cir-
cumstances might very well require the setting of higher standards under
section 31.
Very truly yours,
Francis E. Kelly, Attorney General,
\
P.D. 12. 47
Alcoholic Beverages Control Commission ■ — License — Revocation — Hearing
Mandatory.
Mar. 2, 1950.
Mr. Edward L. Baker, Chairman, Alcoholic Beverages Control Commission.
Dear Sir: — You have asked my opinion upon the following question:
Was the vote of the Alcoholic Beverages Control Commission taken under
date of December 19, 1949, whereby it rescinded its action of December 13,
1949, approving an application foi- a license of a package goods store for
the sale of wines and malt bcvei-ages, a legal and lawful -action under the
provisions of 0. L. (Ter. Ed.) c. 138, as amended, so as to invahdate such
a license gi anted by the City of Somerville?
I answer your question in the negative.
General Laws (Ter. Ed.) c. 138, § 67, provides in part as follows: —
"... upon its own initiative, the commission may investigate the
granting of such a license or the conduct of the business being done there-
under and may, after a hearing, modify, suspend, revoke or cancel such
license if, in its opinion, circumstances warrant."
Your attention is called to the fact that no such hearing was held be-
fore the commission took this action. I find nothing in chapter 138 au-
thorizing this action by the commission but, on the contrary, the perti-
nent provisions of section 67 are unambiguous and quite clear and specific
on this point.
Accordingly, I advise you, as I have already indicated, that your action
of December 19, 1949, is a nullity.
Very truly yours,
Francis E. Kelly, Attorney General.
Emergency Commission — Powers and Authority — Solid Fuels — Seizure
— Ration and Allocation — Regulation of Sales — Penalties.
Mar. 3, 1950.
Hon. AViLLiAM H. Harrison, Adjutant General of the Commonwealth,
Hon. John F. Stokes, Commissioner of Public Safety, and
Hon. John J. DelMonte, Commissioner of Labor and Industries,
Emergency Commission under G. L. (Ter. Ed.) c. 23, § 9H.
Gentleman : — I am in receipt of a communication from you requesting
my opinion on certain questions .stated by you for the purpose of obtaining
a clarification of your powers as the emergency commission designated by
the Governor with the approval of the Council under G. L. (Ter. Ed.)
c. 23, § 9H, as amended b}^ St. 1939, c. 261, § 4, upon his determination,
as provided therein, that an emergency exists in respect to solid fuels,
because of the shortness of supply resulting from the failure of the coal
mine operators to reach an agreement with the coal miners' union repre-
sentatives.
The statute under which j^ou were designated was not, and indeed no
48 P.D. 12.
statute of Massachusetts could be, drawn to deal effectively with an
emergency resulting, as the existing emergency in solid fuels does, from a
failure of production in the bituminous coal fields in other States conse-
quent upon a labor dispute, in which due to the mine operators' refusal to
meet the demands of the miners for what they believe to be a fair wage,
the miners have refused to work.
It can be said generally that the Massachusetts statute contemplates
only those situations wherein, due to some temporary cause, there are
scarcities in some areas but relative surpluses in others. The only methods
provided by the statute for meeting such emergencies are by ascertaining
and publishing the facts with regard to the available supplies and author-
izing the Governor or his designee with the approval of the Council, if
fair distribution does not result, to take possession of all available stocks
with compensation to the owners, and to distribute the stocks taken at
reasonable rates.
Under the provisions of section 9H of chapter 23, as contained in St.
1939, c. 261, § 4, upon its designation the emergency commission "shall
have, with respect to necessarj^ or necessaries of life as to which the emer-
gency exists, all the powers and authority granted by the Commonwealth
Defense Act of nineteen hundred and seventeen, being chapter three hun-
dred and forty-two of the General Acts of nineteen hundred and seventeen,
to persons designated or appointed by the governor under section twelve
of said chapter"; and in the last sentence of the section it is provided
that "the provisions of said chapter three hundred and forty-two are
hereby made operative to such an extent as the provisions of this section
may from time to time require."
The powers and authority which a person designated by the Governor
were granted under Gen. St. 1917, c. 342, § 12, were "to do in his [the
governor's] name whatever may be necessary to carry the said powers
[any or all powers conferred on the governor by the act] into effect."
In an opinion of the Attorney General to the Governor, dated August
21, 1922, and published in VI Op. Atty. Gen. 582, it was stated, at page
587, that the designee of the Governor, under Gen. St. 1917, c. 342, § 12,
would have the powers conferred upon the Governor under the act. Thus
it would appear that your commission has the powers conferred upon the
Governor by the said chapter. The powers conferred upon the Governor
by the act include "with the approval of the council [taking] . . . pos-
session: . . . (c) Of . . . any fuel . . . which may be necessary or con-
venient for the use of the military or naval forces of the commonwealth or
of the United States, or for the better protection or welfare of the common-
wealth or its inhabitants." With respect to the property so taken pos-
session of, it is provided that "he [the governor] may use and employ all
property so taken possession of for the service of the commonwealth or of
the United States, for such times and in such manner as he shall deem for
the interests of the commonwealth or its inhabitants, and may in particu-
lar, when in his opinion the public exigency so requires, sell or distribute
gratuitously to or among any or all of the inhabitants of the commonwealth
anything taken under clause (c) of this section and may fix minimum and
maximum prices therefor. ..."
The statute also makes provision for an award of compensation by the
Governor for property so taken and for a petition for the assessment of
damages sustained by an owner dissatisfied with the award made or to
whom no award is made; but, as will be discussed hereinafter, a question
P.D. 12. 49
arises in this connection as to the availabiHty of funds to pay compensation
awarded or found to be due.
A further power conferred upon the Governor by the act is that con-
tained in section twenty-three which provides that :
"Whenever the governor, with the advice and consent of the council,
shall determine that an emergency has arisen in regard to the cost, supply,
production, or distribution of food or other necessaries of life in this com-
monwealth, he may ascertain the amount of food, or other necessaries of
life within the commonwealth; the amount of land and labor available
for the production of food ; the means of producing within or of obtaining
without the commonwealth food or other necessaries of life as the situation
demands; and the facilities for the distribution of the same, and may pub-
lish any data obtained relating to the cost or supply of such food or other
necessaries, and the means of producing or of obtaining or distributing the
same. In making the said investigation he may compel the attendance of
witnesses and the production of documents and may examine the books
and papers of individuals, firms, associations and corporations producing
or dealing in food or other necessaries of life, and he may compel the co-
operation of all officers, boards, commissions and departments of the com-
monwealth having information that may assist him in making the said
investigation."
In the light of this preliminary statement of the general problem and the
statutory provisions relating to your appointment and powers I now pro-
ceed to deal with the specific questions upon which you desire my opinion.
You state that j^ou would like to be advised whether or not you have
any of the following powers:
(a) To establish a sj^stem of preferences in the use of solid fuels.
(6) To ration and allocate supplies of solid fuels in the possession or
subject to the control of a dealer or any other person and assign priorities
with respect thereto.
(c) To limit, regulate or prohibit the sale, transportation, delivery or
transfer of solid fuels in the possession or subject to the control of a dealer
or any other person.
(d) To restrict the use of solid fuels by ordering the full time, part time
or intermittent closing of any building, facility or plant in connection with
w^hich solid fuel is used for any purpose and to restrict the use of electric
power, gas, steam and other products requiring solid fuels in their manu-
facture.
(e) With the approval of the Governor and Council to adopt, promulgate
and make effective plans, regulations, rules and orders to implement and
carry out the purposes of the law and the executive designation.
(/) To make such investigations and surveys as may be necessary or
appropriate to carry out the purposes of existing legislation and the Gover-
nor's order of designation.
(g) To take possession of existing and available stocks of solid fuels
wherever they may be found and wherever, in the judgment of the emer-
gency commission, it is deemed necessary to reallocate the same with due
provision for making just compensation.
(h) To provide for penalties and sanctions to make enforceable such
rules and regulations as may be promulgated.
50 P.D. 12.
Subject to the observations made with regard to the commission's right
to take supphes of coal which are stated in my answer to your question (g)
hereinafter, with respect to your question (a) it is my opinion that your
commission has the power to estabhsh a system of preferences in the use of
sohd fuels which have properly been taken in the exercise of the power and
authority conferred by section 9H. Section 6 of the Commonwealth De-
fense Act of 1917 provides for the emplo3'ment by the Governor of "all
property so taken possession of for the service of the commonwealth or of
the United States, fo7^ such times and in such mamier as he shall deem for
the interests of the commonwealth or its inhabitants^' (emphasis supplied).
That this power includes the right to establish a system of preferences is
confirmed by a fui'ther piovision of the same section authorizing the sale
or gratuitous distribution "to or among any or all of the inhabitants of
the commonwealth" of the property, including fuel, so taken.
With respect to question {h), I assume from the manner in which the
question is phrased that you are inquiring as to your powers in this regard
in the absence of a seizure. It is my opinion that in the absence of a taking
as provided under section 9H, your commission has no power to ration
and allocate supplies of solid fuels in the possession or subject to the
control of a dealer or any other person or to assign priorities with respect
thereto. This is made abundantly plain by the justices of the Supreme
Judicial Court in their opinion to the Governor and Council, 321 Mass.
772, 776, where it is stated unequivocally that the Commonwealth Defense
Act of 1917 "did not purport to confer any powers of regulation over
property not seized."
Question (c) is adequately covered by what was said with respect to
the preceding question.
With respect to question (rf), it is my opinion that no such power is
conferred upon the Governor or your commission by section 9H or by the
Commonwealth Defense Act of 1917.
With respect to questions (e) and {h) , it is my opinion that no authority
is conferred upon your commission to make rules, regulations and orders
to implement and carry out the purposes of the law and the executive
designation. Nor does your commission have authorit}^ to provide for
penalties and sanctions to make enforceable such rules and regulations.
It is expressly provided in section 9H that "during such an emergency,
the governor, with the approval of the council, may make and promulgate
rules and regulations, effective forthwith, for the carrying out of the
purposes of this section and for the performance by the commonwealth
and the cities and towns thereof of any function affecting food or fuel or
any other common necessary of life, including the providing of shelter,
authorized under Article XL VII of the amendments to the constitution."
And it is further provided by the same section that "violation of any such
rule or regulation shall be punished by a fine of not more than five hundred
dollars or by imprisonment for not more than six months, or by both."
In view of these express enactments, w'hich apparently adequately cover
the subject matter of the two questions, I am clearly of opinion that no
further power in this same regard can or should be implied from the
language of the statute.
With respect to question (/), it is my opinion that your commission
does have authority to make such investigations and surveys as may be
necessary or appropriate to carry out the purposes of existing legislation
and the Governor's order of designation.
P.D. 12. 51
I am of opinion that the powers conferred upon the Governor by sec-
tion 23 of the Commonwealth Defense Act of 1917, set out above, may
be exercised by the commission under the provision of section 9H. Thus
the commission may ascertain the amount of soHd fuel within the Com-
monwealth; the means of obtaining fuel without the Commonwealth as
the situation demands; the facilities for the distribution of the same;
and may publish any data obtained relating to the cost or supply of such
fuel, and the means of producing or of obtaining or distributing the same.
In making such investigations and surveys the commission has the power
to compel the attendance of witnesses and the production of documents
and to examine the books and papers of individuals, firms, associations
and corporations producing or dealing in solid fuels and to compel the co-
operation of all officers, boards, commissions and departments of the
Commonwealth having information that may assist them in making the
investigation.
With respect to your question (g), while the provisions of Gen. St. 1917,
c. 342 incorporated by reference into G. L. (Ter. Ed.) c. 23, § 9H, as con-
tained in St. 1939, c. 261, clearly and definitely authorize the taking of
fuel supplies from private owners and establish definite and certain methods
for the award of compensation and the judicial determination of the
amount of damages to which an owner is entitled, in the event of a dispute,
there is an underlying question as to your right to make takings because
of the constitutional principle that a statute which authorizes takings of
property must also provide means for the payment of the compensation
found to be due. Connecticut River R.R. v. County Commissioners, 127
Mass. 50.
The Commonwealth Defense Act of 1917 contains a provision authorizing
the expenditure of certain appropriations which were then in effect to
carry out the purposes of the act. Obviously that provision is of no as-
sistance here because the appropriations referred to have long since ex-
pired. Section 9H itself contains no provisions relative to the source of
funds for the payment of compensation which would become due to an
owner of coal from whom it was taken. As to smy coal taken for State
use, there would be available appropriations made by the Legislature for
the purchase of coal as needed in the ordinary course and such appro-
priations could be drawn upon for the payment of compensation to the
owner from whom coal was taken for such State use.
It may also be true that there are available funds in special appropri-
ations for emergencies or which can be made available by transfer in ac-
cordance with law from existing appropriations and, to the extent of such
appropriations, taking of coal could be made. Aside from such cases,
however, it would ^appear that the statute under which the commission is
empowered to act is not implemented by the making available of funds to
pay compensation for property which is authorized to be taken.
In the case of Talbot v. Hudson, 16 Gray, 417, 431, Chief Justice Bigelow
held that it is sufficient that the statute which authorizes the taking of
property should provide for the assessment of damages in the ordinary
manner, and directs that the damages so assessed be paid out of the treas-
ury of the Commonwealth, and authorizes the Governor to draw his war-
rant therefor because: "This is clearly an appropriation of so much money
as may be necessary to pay the damages which may be assessed under the
act. ... It is a pledge of the faith and credit of the Commonwealth,
made in the most solemn and authentic manner, for the payment of the
52 P.D. 12.
damages as soon as the}^ are ascertained and liquidated by due process of
law."
Section 9H, as has been pointed out, while it provides for the assessment
of damages in the ordinary way, does not direct that the damages assessed
be paid out of the treasury of the Commonwealth or authorize the Governor
to draw his warrant therefor. Statutes similarly deficient have been uni-
formly held to be unconstitutional. Bent v. Emery, 173 Mass. 495. VI
Op. Atty Gen. 539.
The fact that Gen. St. 1917, c. 342, provides that petitions for the assess-
ment of damages thereunder shall be governed by the provisions of R. L.
c. 201, now G. L. (Ter. Ed.) c. 258, merely adds to the doubt as to whether
adequate means have been made for the payment of compensation, for
section 3 of chapter 258, while it authorizes the Governor to draw his war-
rant on the State Treasurer for the amount of the damages found due,
expressl}'^ provides that the latter "shall pay the same from any appropri-
ations made for the purjpose by the general court" (emphasis supplied).
Although the decisions referred to concern statutes which did not refer
to takings occasioned by emergency conditions and it has been indicated
that the requirement that adequate provision be made for the payment
of compensation for property taken is not applicable in case of a taking in
a time of public emergency for a public use, People v. Hayden, 6 Hill
(N. Y.) 359, 361, it would appear that such an exception could not be
said to cover the present situation in which the property taken will not,
in most cases, be put to use by the State but will be distributed to private
persons for private uses which will not commonly be of compelling neces-
sity for the general public safety or welfare.
In accordance with the foregoing, I inform you that, except as it may
appear that there are appropriations presently available which can be
drawn upon for the payment of compensation to the owners of coal which
might be taken, and then only to the extent of such appropriations, your
right to take possession of coal is dependent upon provision being made
by the Legislature for funds for the payment of compensation to the own-
ers of coal which you might desire to take.
Very truly yours,
Francis E. Kelly, Attorney General.
Employees of Commonwealth — Work Week — Holidays — Payment for
Work on Holiday.
Mar. 10, 1950.
Hon. Thomas H. Buckley, Commissioner of Administration.
Dear Sir: — You have recently asked my opinion interpreting the
effect of G. L. (Ter. Ed.) c. 149, § 30A, inserted by St. 1947, c. 677, and
G. L. (Ter. Ed.) c. 30, § 24A, as amended, under the circumstances herein-
after described.
Section 30A provides that the service of all persons employed by the
Commonwealth, with certain exceptions, is restricted to five days in any
one week and to such hours in any one week not less than thirty-seven and
one-half, except in case of part-time employment, nor more than forty
hours; and that all service in excess of forty hours in any one week ren-
dered by an employee subject to this section shall be compensated for as
P.D. 12. 53
overtime. In this connection it will be well to refer to section 30 of chap-
ter 149, which restricts the service of laborers, workmen, mechanics, fore-
men and inspectors employed by the Commonwealth to (nght hours a day,
forty-eight hours in any one we{>k and six days in any one week, except in
cases of emergency.
Chapter 30, section 24A, providers that if any person employed by the
Commonwealth is required to work on state-wide legal holidays, he shall
be given an additional day off, or if such day off cannot be given by reason
of a personnel shortage or other cause, an additional day's pay; and if
an employee works five or more days a week and his regular day off falls
on any of said holidays (except when such holiday occurs on Saturday), he
shall be allowed an additional day off or a day's pay in lieu thereof.
You state that in accordance with an opinion rendered by a previous
Attorney General, department heads have been fixing the working hours
of employees in their respective departments subject to the maximum for
such hours established by the Legislature. You present six different situa-
tions which may arise and pose a question as to each as follows:
1. An employing unit has on its payroll an employee who works only
when required, so that such individual will report for duty only when
notified. He is paid on a monthly basis. If such employee is required to
work on a holiday described above is he entitled to a day off or a day's
pay in lieu thereof?
2. An employing unit employs a person for four days of ten hours each
in a week in place of the usual eight hours for each of five days, for the
accommodation of the employing unit. This means that there are three
days of the week when svich employee is not at work. If a holiday occurs
during the scheduled four days is such employee entitled to a day off or a
day's pay in lieu thereof?
3. The facts are the same as in (2) except that the holiday falls on one
of the three days the employee is not scheduled to work. Is said employee
entitled to a day off or a day's pay in lieu thereof?
4. An employee works a few hours a day in each of five days in a week,
said hours totaling less than forty. If a holiday falls on one of the five
days is the employee entitled to time off (and how much) or pay (and how
much) in lieu thereof?
5. The facts are the same as in (4) except that the holiday falls on one
of the two remaining days the employee is not scheduled to work. Is
the employee entitled to time off (and how much) or pay (and how much)
in lieu thereof?
6. An employee is scheduled to work more than eight hours some days
but no more than forty hours in a total of five days. Is such employee
entitled to overtime pay for any hours over the eight worked on any one
day, even though the total hours worked do not exceed forty?
In ascertaining the legislative intent we must read the statutes in ques-
tion together, give the words used their ordinary meaning, consider the
pre-existing state of the common and statutory law, determine the evil or
mischief toward which the statute was apparently directed, and the main
object to be accomplished. See Meunier's Case, 319 Mass. 421. Apply-
ing the above principles it would appear that the Legislature, motivated
by changing social and economic conditions, wished to establish a general
labor poUcy, namely: that certain State employees shall labor onh^ five
days and no more than forty hours in a week (c. 149, § 30A), and certain
other employees no more than eight hours in a day (c. 149, § 30).
54 P.D. 12.
As to those employees subject to section 30A there is no hmit to the
number of hours per day. To be entitled to overtime the employee would
have to work over forty hours during the week. This contemplates such
ernployee would be working more than eight hours on some one day.
The Legislature also determined that those who worked on legal holidays
should be rewarded either by a day off or pay in lieu thereof. Nothing is
specified in the statute as to the number of hours one has to work on this
holiday or during the remaining week in order to qualify. A practical
interpretation of the statute would be to define "day off" or "day's
pay" according to the status of the employee in question; that is, if the
employee is engaged to work on a four, eight, twelve (or any other time
unit) hour day, that will be the yardstick by which to measure the "day's
pay." It would not be practical or fair to give standard eight hours' pay
to an employee whose workday on a particular holiday is four, six, ten
or twelve hours. If the holiday falls on a day an employee is scheduled
to work four hours and he did not work because of the holiday, he would
have a four-hour respite from labor and his pay for those four hours would
go on just as if he had worked. Now if he had to work that holiday, he
would be entitled to be relieved from working some day he was scheduled
to work that number of hours. If because of personnel shortage he could
not get this day off, then he would be entitled to the pay for that da.y of
four hours, which in effect would be double pay for the holiday he works.
The same would hold true in case of a six-hour day, eight-hour day, ten-
hour day, or twelve-hour day, etc.
I therefore answer your questions as follows:
1. Yes.
2. Yes.
3. No.
4. The employee is entitled to such time off as is equivalent to the
scheduled workday on which the holiday falls. If because of personnel
shortage he cannot get this time off, he should receive the pay which that
particular scheduled workday would bring him. He will thus receive
double pay for the holiday he works.
5. Yes, as measured by his average scheduled workday.
6. No.
Very truly yours,
Francis E. Kelly, Attorney General.
Department of Mental Health — Student Nurses — Oath.
Mar. 31, 1950.
Hon. Thomas H. Buckley, Commissioner of Administration.
Dear Sir: — You have recently asked me for an opinion interpreting
the effect of St. 1949, c. 619, under the circumstances hereinafter described.
Chapter 619 adds the three following sections to G. L. c. 264:
"Section 13. No person who is a member of the communist party,
or is a member of or supports any organization which advocates the over-
throw by force, violence or other illegal or unconstitutional methods, the
government of the United States or of this commonwealth shall be em-
I
P.D. 12. 5.-,
ployed in any capacity by the commonwealth or any political subdivision
thereof.
"Section 14. Every person entering the employ of the commonwealth
or any political subdivision thereof, before entering upon the discharge of
his duties, shall take and subscribe to, under the pains and penalty of
perjury, the following oath or affirmation: —
'I do solemnly swear (or affirm) that I will uphold and defend the Con-
stitution of the United States of America and the Constitution of the
Commonwealth of Massachusetts and that I will oppose the overthrow
of the government of the United States of America or of this Common-
wealth by force, violence or by any illegal or unconstitutional method.'
"Section 15. \'iolation of section thirteen or fourteen shall be pun-
ished by a fine of not more than ten thousand dollars or by imprisonment
for not more than one year, or both."
You state that in the Department of Mental Health there are student
nurses who are affiliated with various private hospitals and who, while
gaining psychiatric experience, render service as nurses at some institution
in the department and in return for said service receive maintenance,
but the grant of this maintenance is on the express condition that said
affiliate student nurses shall not be considered State employees.
You wish to know whether said student nurses are employees of the
Commonwealth during their period of training so as to require them to
take the oath of loyalty described in the above statute.
On September 29, 1949, I rendered to the Honorable Edward J. Cronin,
Secretary of the Commonwealth, an opinion relating to certain aspects of
this statute. That opinion in part stated:
"No person who by reason of his or her own voluntary acts and conduct,
explicitly or implicitly, by clear and reasonable inference, comes within
the prohibitions of the foregoing statute 'shall be employed in any capac-
ity by the commonwealth or any political subdivision thereof.' The
prohibitions of the statute have reference to, and embrace within their
sphere, employment in the service of the Commonwealth and in the service
of every political subdivision thereof, including counties, cities, towns and
districts.
"Every person upon entering the employment of the Commonwealth
or of any political subdivision thereof, including counties, cities, towns
and districts, is required under the express terms of the statute, before
entering ujion the discharge of his or her duties, to take the prescribed
oath. . . .
"Those now in the employ of the Commonwealth, or of any political
subdivision thereof, in any capacity, are not required to take the prescribed
oath or affirmation when the statute becomes effective, as a condition
precedent to remaining in the pubUc service. But it is to be observed that
any person employed as above stated in this paragraph after the effective
date of the statute who has then by reason of his or her own acts and
conduct, or who thereafter by reason of his or her own acts or conduct,
brings himself or herself within the prohibitions of the statute, would be
subject to removal from the public service."
The only issue presented by your question is whether such a student
nurse is "employed in any capacity by the commonwealth." Inasmuch
56 P.D. 12.
as the statute does not define the word "employee" or "employ" we
must give these words their usual and ordinary meaning. Mengel v.
Justices, Superior Court, 313 Mass. 238, 242. Although these words may
have a flexible meaning, their definition will depend upon the context and
the object to be accomplished by the statute in question. Muise v. Cen-
tury Indemnity Company, 319 Mass. 172, 174.
In the case of Oris wold v. Director, Division of Unemployment Security,
315 Mass. 371, 372, the court said that if one is performing service for
another and is under the control and supervision of the latter, and is bound
to obey his instructions, then he is the latter's employee.
In using the words "employed in any capacity by the commonwealth"
the Legislature appears to use the word "employ" in a rather broad sense.
The purpose of the Legislature was to screen and exclude from its service
any persons who advocate the overthrow of the government by violence.
The Legislature wished to guard against "fifth columnists" securing any
kind of foothold in the government's service. In view of the above I
think the student nurses described by you must be classed as being em-
ployed by the Commonwealth. They render a service and are under the
control and supervision of the hospital authorities and receive some com-
pensation for said service by way of maintenance.
If a person is actually in the service of the Commonwealth or a political
subdivision thereof, an agreement that the former shall not be considered
an employee cannot exclude said person from the operation of the above-
mentioned statute even though said agreement may be effective to exclude
the operation of other statutory provisions. To decide otherwise would
defeat the whole purpose of the statute in question.
Very truly yours,
Francis E. Kelly, Attorney General.
Hospital Medical Officer — Limited Registration in Massachusetts, if
Otherwise qualified.
Apr. 6, 1950.
Mr. William H. J. Rowan, Director of Registration.
Dear Sir: — You have recently asked my opinion interpreting the
effect of G. L. (Ter. Ed.) c. 112, § 9, under the circumstances hereinafter
described.
Section 9 provides that an applicant for limited registration who,
among other things, furnishes proof that he has been appointed an in-
terne, fellow, or medical officer in some hospital, may be registered as a
hospital medical officer; and he may practice medicine in that hospital or
outside such hospital for the treatment, under the supervision of one of
its medical officers who is a duly registered physician, of persons accepted
by it as patients.
You state that at the head of the pathological department of a certain
hospital is a man who had practiced medicine in another State for a num-
ber of years but has not been registered here. You wish to know whether
such a person, having under his jurisdiction doctors and technicians in
training, falls within the definition of interne, fellow or medical officer,
so as to qualify for limited registration.
P.D. 12. 57
Unless these words have acquired a significant meaning in the medical
profession, we must give them their ordinary meaning, having in mind the
main object sought to be accomplished by the enactment. Meunier's Case,
319 Mass. 421. The general purpose of limited n^gistration was to enable
persons not yet qualified to register as full-fledged physicians to finish
their training in some hospital and practice under the supervision of a dvily
registered physician attached to said hospital. Nevertheless, if an appli-
cant has medical knowledge and training superior to that of a neophyte,
he should not thereby be disqualified from registering under section 9.
Webster's Dictionary defines an "interne" as a resident physician, sur-
geon or officer in a hospital, especially one serving in preparation for in-
dependent practice. It defines "fellow" as one who is pursuing some
special line of study, usually residing at the place of study. It defines
"medical officer" as one holding a position of tmst, ministration, or
authority in matters relating to the healing art or the science of medicine.
The department head whom you describe would seem to fall within the
definition of "medical officer" and therefore entitled to limited registra-
tion, if otherwise qualified.
Very tiidy yours,
Francis E. Kelly, Attorney General.
Certain Legal Holidays in Suffolk County — Compensation for Work Per-
formed on.
Apr. 10, 1950.
Hon. Thomas H. Buckley, Commissioner of Administration.
Dear Sir: — You have recently asked me for an opinion interpreting
the effect of G. L. (Ter. Ed.) c. 4, § 7, cl. 18, as amended, and G. L. (Ter.
Ed.) c. 30, § 24 A, as amended, under the circumstances hereinafter de-
scribed.
Chapter 4, § 7, cl. 18, designates certain state-wide legal holidays and
requires the closing of all public offices on said days; and also provides
that with respect to Suffolk County only, March seventeenth and June
seventeenth shall be legal holidays, and that the public offices of certain
municipalities and the county shall be closed on March seventeenth, and
the public offices of the Commonwealth within the county shall close at
twelve noon on March seventeenth but on June seventeenth all public
offices in the county shall be closed.
Chapter 30, § 24A, provides that if any person employed by the Com-
monwealth is required to work on a state-^\'ide legal holiday he shall be
given an additional day off or an additional day's pay if the day olT can-
not be given by reason of personnel shortage or other cause.
You state that many of the State departments located in Suffolk County
find it necessary to work their employees in Suffolk County on March
seventeenth and June seventeenth. I understand further that unusual
emergencies may arise on such holidays, such as damage to airport run-
ways, bridges or highways, which require immediate repair for the public
safety. I am informed that prior to the original enactment of G. L. (Ter.
Ed.) c. 30, § 24A, in the year 1945 the practice was for the department
heads to give compensator}^ time off to those who were required to work on
58 P.D. 12.
legal holidays. This was probably done to promote loyalty and efficiency
of operation.
You wish to know whether a State department with offices in Suffolk
County may give compensatory time off or an extra day's pay to its em-
ployees assigned for work in said county on March seventeenth or June
seventeenth.
It is apparent that chapter 30, section 24A, provides for said day off or
an equivalent day's pay only for work performed on state-wide holidays.
I see nothing in the statute, however, which would prevent a department
head from invoking the practice prevailing prior to 1945 whenever emer-
gencies require the service of employees on March seventeenth or June
seventeenth for the public health or safety. To do so would be quite com-
mendable. Furthermore, if a department head can give compensatory time
off, he can also give the alternative of an equivalent day's pay.
Very truly yours,
Francis E. Kelly, Attorney General..
Definite Sentence of Woman to Reformatory for Women — Effect of Indefi-
nite Sentence to he served On and After.
Apr. 20, 1950.
Hon. Elliott E. McDowell, Commissioner of Coirection.
Dear Sir: — You have recently asked my opinion interpreting the
effect of G. L. (Ter. Ed.) c. 279, § 18, as amended, under the circumstances
hereinafter described. You state that on November 27, 1946, a woman
was sentenced to five years and one day in the Reformatory for Women for
robbery, and on the same date was sentenced for an indeterminate term
at the same institution for the crime of adultery, the last named sentence
to begin on and after the expiration of the sentence for robberv.
Prior to September, 1947, under G. L. (Ter. Ed.) c. 279, § 18, a woman
sentenced to said Reformatory for adultery could be held therein for not
more than five years unless sentenced for a longer term; but in Septem-
ber, 1947, section 18 was amended to provide that if a woman was sentenced
to the Reformatory for adultery "she may be held therein for not more than
two years."
You also state that this woman has been paroled by the Parole Board
to start serving her sentence for adultery on Januar}^ 19, 1950. You wish
to know whether she is subject to the law which existed at the time of her
sentence for adultery or to the present law.
If section 18, as amended, were an ex post facto law in its application to
this woman, it would be inoperative. In Commonwealth v. Phelps, 210
Mass. 78, at 79 and 80, the court said:
" 'It may be said, generally speaking, that an ex post facto law is one
which imposes a punishment for an act which was not punishable at the
time it was committed; or an additional punishment to that then pre-
scribed; or changes the rules of evidence by which less or different testi-
mony is sufficient to convict than was then required; or, in short, in rela-
tion to the offense or its consequences, alters the situation of a party to his
disadvantage; Cummings v. Missouri, 4 Wall. 277; Kring v. Missouri,.
P.D. 12. 59
107 U. S. 221; but the prescribing of different modes of procedure and the
abohtion of courts and creation of new ones, leaving untouched all the
substantial protections with which the existing law surrounds the person
accused of crime, are not considered within the constitutional inhibition.
Cooley, Const. Lim. (5th ed.) 329.' "
But a law mitigating the punishment of an offence is not ex post facto;
it is an act of clemency. Commonicealth v. Wyman, 66 Mass. 237. Murphy
V. Commomvealih, 172 Mass. 264, 269. The same is generally tme as to
statutes which relate to procedure or penal administration or prLson dis-
cipline, even though the effect may be to enhance the severity of the con-
finement. Duncan v. Missouri, 152 U. S. 377.
In the case of Conwionicealth v. Gardner, 11 Gray, 438, 445, the court
said: "When the punishment is mitigated by a new act between the com-
mission of the offence and the trial and sentence, the party may have the
I:)enefit of the mitigating law."
In the case of Commonwealth v. McKenncy, 14 Gray, 1, 3, the court said:
"A diminution of the punishment, after the act done and before conviction,
does not prevent a judgment for the milder punishment."
In Cojmnomvealth v. Marshall, 11 Pick. 350, 351, Shaw, C.J., said: "It
is clear, that there can be no legal conviction for an offence, unless the
act be contrary to law at the time it is committed; nor can there be a
judgment, unless the law is in force at the time of the indictment and
judgment. If the law ceases to operate by its own limitation or by a
repeal, at any time before judgment, no judgment can be given."
The above language indicates that if sentence is imposed before the
enactment providing a milder punishment, the sentence cannot be altered
except by executive clemency. The same would be true if the sentence,
although imposed, had not yet taken effect because it was to begin on and
after another sentence.
Under the present section 18, however, by its explicit phraseology, the
woman in question if sentenced for adultery "may be held therein for not
more than two years." A statute will be construed as having a prospective
operation only, unless it indicates an intent that it shall operate retro-
spectively. Greenaway' s Case, 319 Mass. 121. Section 18 seems to indi-
cate this intent. I am therefore of the opinion that the Legislature in-
tended that a woman already sentenced to your institution for adultery
should not be held therein for more than two years.
Very tnily yours,
Francis E. Kelly, Attorney General.
Civil Service — Seniority Rights of Veterans — Appointment — Promotion,
Apr. 27, 1950.
Hon. Thomas H. Buckley, Com,m,issioner of Administration.
Dear Sir: — You have recently asked me for an opinion interpreting
the effect of St. 1949, c. 600, under the circumstances hereinafter described.
This statute amends St. 1941, c. 708, by adding a section 24B as follows:
"Any permanent employee of the commonwealth or any political sub-
division thereof, who was eligible to be transferred or promoted to a higher
60 P.D. 12.
rating, either on a temporary or pei-manent basis, but his transfer or pro-
motion was delayed because of service in the mihtary or naval forces of
the United States and the position actually was filled by an employee with
less seniority on a temporary basis during said permanent employee's
absence, and who passes a competitive promotional examination and re-
ceives a subsequent permanent appointment, shall thereafter have the
same salary rating and seniority rights that he would have if his transfer
or promotion had occurred at the time said position actually was filled by
an emploj^ee with less seniority as aforesaid."
Recently an opinion was given to you analyzing St. 1941, c. 708, and
its amendments, which I incorporate herein by reference.
You give the following facts: B, a permanent employee, enters the
armed forces and is replaced by a military substitute, A, who has no
seniority. Another employee, C, with seniority, would have been eligible
for promotion to B's position if C were at home and not with the armed
forces. B returns from the wars to his old position and A is dismissed.
Four months later B is promoted and C is temporarily appointed to B's
old position and subsequently qualifies permanently therefor. You ask
four questions:
(1) May C, by virtue of St. 1949, c. 600, be placed on that salary schedule
which A would be on if A had subsequently qualified for B's old position
instead of C?
(2) Does St. 1949, c. 600, benefit a subsequently promoted incumbent
where the previously appointed incumbent has no seniority, on the theory
that one with no seniority has "less seniority" than one with some sen-
iority?
(3) In using the phrase "less seniority" did the Legislature contem-
plate only a comparison between two or more employees, each with some
seniority, in order to prevent one permanent employee from benefiting
by the absence of another permanent employee with the armed forces?
(4) Does St. 1949, c. 600, modify G. L. (Ter. Ed.) c. 30, §§ 45 and 46
(which require salary ratings of employees according to years of service
in the particular grades), so as to place employees returned from the wars
in a salary schedule which would credit them with a longer period than
actually served by them in such grade?
Your first question should be answered in the affirmative. I think C
falls within the literal words of the statute. A literal construction of a
statute should not be ignored unless it will thwart the purpose of the
Legislature. Cullen v. Mayor of Newton, 308 Mass. 578; Fnje v. School
Committee, 300 Mass. 537. We should construe liberally all legislation
intended to benefit those brave men and women who toiled, sweated, bled
and risked their all in the service of their country.
If B and C returned from the wars together (the military substitute A
being dismissed) and B was immediately promoted and C appointed to
B's old position provisionally and then permanently after qualifying, the
statute would undoubtedly give him the salary rating and seniority rights
he would have acquired as of the date of A's appointment. The fact that
B did not resign his old position till four months after his return did not
take C out of the exact category described in the statute. C was a per-
manent employee and he was eligible for promotion to B's position on a
temporary basis (as a military substitute) and, because C was with the
armed forces. A, with less seniority, actually filled the position on a tem-
P.D. 12. 61
porary basis (as a military substitute) and C later actuallj^ passed a com-
petitive promotional examination and received a permanent appointment
to B's old position. He therefore comes within the exact words of the
statute and would be entitled to the same salary rating and seniority
rights he would have if he had been promoted at the time A was ap-
pointed.
Your second and third questions can be treated together. Let us
assume X has five years' service, Y two years' service, and Z none. Clearly
Y has "less seniority" than X and if Y received an appointment to which
X was eligible, but which X had to forego because he was with the armed
forces, the statute in (luestion was intended to benefit X on his return, if
he (lualified for another permanent better position. The Legislature
clearly did not intend to deprive him of these benefits if Z, with no sen-
iority, instead of Y had received the appointment.
Your fourth (|uestion should not be difficult to answer. Although
St. 1941, c. 708, as amended, uses the word "seniority" as referring to
preferential treatment in relation to permanency of position, promotions,
hiyoffs, and the like under civil service and not to monetary benefits as
such, nevertheless, St. 1949, c. 600, specifically includes "salary rating."
Under this statute the veteran's salary grade will not depend on his actual
length of service.
To recapitulate, I answer your four questions as folloAvs:
(1) Yes.
(2) Yes.
(3) No.
(4) Yes.
Very truly yours,
Francis E. Kelly, Attorney General.
Civil Service — Seniority Rights as to Salary, Vacation and Sick Leave.
Apr. 27, 1950.
Hon. Thomas H. Buckley, Commissioner of Administration.
Dear Sir: — You have asked me for an opinion interpreting the effect
of St. 1947, c. 11, and St. 1948, c. 447, under the circumstances hereinafter
described.
You wish to know whether the word "seniority," as it appears in the
two statutes, affects the rights of employees of the Commonwealth with
respect to salary rates, vacation rights or sick leaves (which you state
have always been decided on the basis of actual service) or only their rights
as to permanency of employment, transfer, promotion, layoff or reinstate-
ment.
The statutes in question are amendments to St. 1941, c. 708, as amended.
It would therefore be helpful to abstract the pertinent sections of the latter
enactment. The declared purpose of that act was to protect the rights of
certain persons in the armed services of the United States.
Section 1 provides that any person who, after January 1, 1940, shall have
terminated his service with the Commonwealth, or any political subdivision
thereof, in order to serve in the armed forces of the United States, shall be
62 P.D. 12.
deemed to be on leave of absence until two years from the termination of
his military service.
Section 2 provides that any person described in section 1 who is classi-
fied under civil service shall be reinstated without examination or loss of
seniority rights if he makes a written request therefor within two years
after the termination of his military service and files a medical certificate
that he is not disabled; and all appointments, transfers and promotions
made on account of such leave of absence shall be temporary, and the
person so appointed, transferred or promoted shall be called a military
substitute.
Section 3 provides that any person permanently appointed under civil
service, after certification from an eligible list, who enters the armed forces
before he begins his employment, shall be permanently employed on the
termination of his military service, subject to a probationary period of six
months, and provided he makes a request therefor in WTiting and files a
medical certificate that he is not disabled.
Section 4 provides that any person whose name is on an eligible list at
the time of his entry into the armed forces shall, on request within two
years after the termination of his military service, be restored to the list
for a period equal to the remainder of his term of eligibility; and, if a
person is otherwise entitled to have his name on a list because of an ex-
amination before he enters the armed forces, he shall have the same right
to be placed on the eligible list for the full period of eligibility provided he
files a medical certificate that he is not disabled.
Section 8 provides that no person referred to in section 1 who has been
separated from the service of the Commonwealth while a member of a
retirement sj^stem shall be considered as terminating his membership in
said system until one year after the termination of his military service.
Section 9 provides that any person referred to in section 1 who is rein-
stated to his former position or a similar position, as provided by this act,
shall have credited to him as creditable service under any retirement or
pension system or law under which he has actual or inchoate rights the
period of his military service.
Section 13 provides that if a holder of a municipal office enters the armed
forces and returns to office within two years after the termination of his
military service, the period of his absence shall be included in computing
the period of five years of continuous service required under G. L. (Ter.
Ed.) c. 31, § 49A.
Section 24 provides that any person who is restored to the service of the
Commonwealth, or any political subdivision thereof, within two years
after his return from the wars shall be entitled to all seniority rights to
which he would have been entitled if his employment had not been inter-
rupted by his military service; and any such person whose salary is fixed
under a classified compensation plan shall be eligible to a salary rate which
shall include accrued step-rate increments to which he would have been
eligible except for his absence in the military service.
Statute 1947, c. 11, adds a section 2B to St. 1941, c. 708, w^hich provides
that if a person whose name was on an eligible list at the time he entered
the armed forces receives a permanent appointment and is given a seniority
date later than that of another person who received a permanent appoint-
ment from such list bvit stood lower thereon, the director, on application
for such change, may establish as the veteran's seniority date the seniority
date of such other person.
P.D. 12. 63
Statute 1948, c. 447, is entitled "An Act relative to the compensation
to be paid to certain veterans of World War II who received delayed
promotions, and providing for the computation of seniority dates in con-
nection with certain public officers and employees whose rights were
prejudiced by their military or naval service." This act adds a section 24 A
and a section 2C to St. 1941, c. 708. Section 24A provides that any perma-
nent employee of the Commonwealth, or any of its subdivisions, who was
unable to compete in a competitive promotional examination or whose
competitive promotional examination was delayed or postponed because
of military or naval service and who aftc^r his retm-n from the wars takes a
qualifying promotional or competitive promotional examination as pro-
vided by law and is subsequently permanently promoted, shall upon such
promotion receive the rate of compensation which he would have received
had his promotion not been delayed by such service.
Section 2C provides that if a person at the time of his entrance in the
arm(>d forces has his name on an eligible list and receives a permanent
appointment and is given a seniority date later than that of another person
who received a permanent appointment from a list established from a
subsequent examination which the former was unable to take becau.se
of his absence in the armed forces, the director, on application for such
change, may establish as the seniority date of the veteran the seniority
date of such other person.
Thus the protection given to persons who were in th(> public service at
the time of their entry into the armed forces includes not onlj^ their tenure
and civil service rights but also certain rights and privileges with regard
to retirement contributions and salary. Persons who were not in the
public service at the time of their entry into the armed forces but who
were on civil service eligible lists for original appointment and who could
not because of their military or naval service accept such appointment,
or if appointed were prevented from commencing emploj^ment, were given
certain more restricted rights, including, among others, extensions of
eligibility for appointment or for the time of commencement of employ-
ment, after the termination of their military or naval service.
The provisions of St. 1947, c. 11, and St. 1948, c. 447, relate to this
latter class; that is, to persons on civil service eligible lists for original
appointment to positions in the public service and who were granted by
other provisions of said St. 1941, c. 708, extended eligibility for such
appointments.
The service to be counted in the fixing of the civil service, salary, retire-
ment or other rights of an employee in the public service would ordinarily
be actual service. That rule, however, has been changed, as stated, in
certain respects with regard to persons who at the time of their entry
into the armed forces were permanent public emploj^ees. However, as to
persons who at the time of such entry were not actually appointed to
positions in the civil .service but were only eligible for original appoint-
ment thereto, the only changes effected by St. 1947, c. 11, and St. 1948,
c. 447, were to provide for adjusting the civil service .seniority rights of
such persons who received original appointments after the termination
of their military or naval service with relation to persons who were ap-
pointed from the same list but stood lower thereon (St. 1947, c. 11), or
were appointed from a list established from a subsequent examination
which the person in the military or naval service could not take (St. 1948,
c. 447). The manner of adju.sting those rights is to provide that an ap-
64 P.D. 12.
pointee covered by either statute who was given a seniority date later
than that of a person who either stood lower on the same list or was ap-
pointed from such a subsequent list shall have the same seniority date as
said other appointee.
"Seniority" is defined in G. L. (Ter. Ed.) c. 31, § 15D (inserted by
St. 1945, c. 704), as amended, as follows: "For the purposes of this chapter,
seniority of officers and employees in the official or labor service shall
mean their ranking based on length of service, computed as provided in
this section." The statute then provides that length of service of a perma-
nent officer or employee shall be computed from the date of the original
permanent appointment; and in the event of a change of service, whether
by appointment, promotion or transfer from one department of the Com-
monwealth or a municipality to another, or from a municipality to the
Commonwealth, or vice versa, the length of service shall be computed
from the date of said change until the completion of one year's service
in the position to which he is changed, at which time the length of service
shall be computed from the same date from which computed immediately
prior to said change.
To interpret these statutes we must follow the usual rules of statutory
construction. We must seek the legislative intent from the words in
which the statute is couched, giving them their ordinary meaning unless
there is something in the statute indicating a different signification, from
the pre-existing state of the common or statutory law, and the main
object sought to be accomplished by the enactment. Meunier's Case^
319 Mass. 421 ; Kneeland v. Emerton, 280 Mass. 371, 376.
Furthermore, if reasonably practicable, a statute is to be explained in
conjunction with other statutes to the end that there may be an har-
monious and consistent body of law. Morse v. Boston, 253 Mass. 247,
252; KelUy v. Jordan Marsh Co., 278 Mass. 101, 111.
It would seem that wdierever in the above-mentioned statutes the
word "seniority" appears, it relates to "length of service" in its effect
upon civil service benefits and privileges. It is generally understood in
speaking of an employee's seniority that reference is made to his preference
over other employees under the provisions of the civil service law, in
eligibility for promotion or for retention in service in the event of a reduc-
tion in force. Under G. L. (Ter. Ed.) c. 31, § 15D, as amended, and also
under the prior law, the seniority of a person who at the time of his entry
into the armed forces was on an eligible list and whose eligibility was
extended by St. 1941, c. 708, as amended, would, if it were not for St. 1947,
c. 11, and St. 1948, c. 447, be measured from the date of his actual ap-
pointment.
It was to adjust the computation of the seniority of veterans under
chapter 31, section 15D, that the Legislature adopted St. 1947, c. 11, and
St. 1948, c. 447. This conclusion is fortified by an examination of some
of the provisions of St. 1941, c. 708. We noted above that section 9 spe-
cifically declares that an employee who went to war and was reinstated on
his return shall have credited to him as creditable service under any retire-
ment or pension laws the period of his military or naval service. Section
24 provided that any returning veteran who is restored to State or munic-
ipal service shall be entitled to all seniority rights interrupted by his
military or naval service and also salary increments which would have
accrued if he had not been absent. If "seniority" was intended to relate
to compensation, vacation allowances and sick leave, there would have
P.D. 12. 65
been no need to spell out the monetary benefits in sections 9 and 24. It
is also significant that St. 1949, c. 600, amends St. 1941, c. 708, by adding
a section 24B, which provides that a permanent employee who was eligible
for promotion to a higher rating but said promotion was delayed because
of his military or naval service would, on his i-eturn, under certain condi-
tions have "the same salary rating and seniority rights" which he would
have had under certain conditions prior thereto. It seems obvious the
Legislature did not intend the words "seniority rights" to include "salary
rating."
In an opinion of the Attornev General to the Police Commissioner of
the City of Boston dated June 29, 1948, it was held that St. 1947, c. 11,
related "to the workings of the civil service law, and the seniority dates
referred to in said section, established by the Director of Civil Service, are
established for the purpose of fixing seniority under the civil service laws
only and have no application to the estimate of compensation or vacation
allowances under St. 1947, cc. 146 and 342."
As stated in that opinion, St. 1947, c. 11 (and it follows also St. 1948,
c. 447), deals with the basis for seniority in the application of the civil
service law; and it has no application, since there is no reference thereto,
to statutes under which salaries or other rights of an employee affected
thereby are determined.
I am therefore of the opinion that the only change effected by St. 1947,
c. 11, and St. 1948, c. 447, is to adjust for the purpose above described the
rights of a returning veteran under the civil service laws to the same level
as those of a person who was appointed from the same eligible list but
stood lower thereon (St. 1947, c. 11), or who was appointed from an
eligible list established from a subsequent examination which the return-
ing veteran was unable to take because of his absence in the military or
naval service (St. 1948, c. 447).
Very trul}'^ yours,
Francis E. Kelly, Attorney General.
Mystic River Bridge Authority — Construction Expense of Water Main —
Question for Legislature.
May 16, 1950.
Hon. William T. Morrissey, Commissioner, Metropolitan District Com-
mission.
• Dear Sir: — You have requested my opinion "as to whether or not the
Mystic River Bridge Authority should be required to pay all or part of
the expense of constructing" a tunnel beneath the Mystic River in which
to relay a 30-inch water main owned by the city of Boston and the com-
mission, which by the demolition of the old Chelsea Street Bridge will be
exposed to danger from navigation in the river. This main is not attached
to the old Chelsea Street Bridge, which is to be demolished, but is carried
on piles paralleling the bridge and passes under the main channel of the
Mystic River in a tunnel beneath the draw of the old bridge.
Of course, it is not the function of the Attorney General to determine a
question of policy such as the phraseology of your request presents, i.e.
"whether or not the Mystic River Bridge Authority should be required to
66 P.D. 12.
pay all or a part of the expense of the construction" referred to. The
determination of such questions of policy is for the Legislature. I have,
however, examined the legislation, St. 1946, c. 562, under which the Mystic
River Bridge Authority was authorized to construct a toll bridge to replace
the existing Chelsea Street Bridge to determine what, if any, policy the
Legislature may have established therein with respect to imposing upon
the Bridge Authority the cost of any construction with relation to the
30-inch main.
A careful perusal of this statute convinces me that in enacting St. 1946,
c. 562, the Legislature did not establish any policy with regard to an
obligation on the part of the Authority to contribute toward the cost
of constructing new structures for the carrying of this main. Indeed, it
would appear from the wording of the chapter that the condition in which
this main and its supporting structure would be left upon the demolition
of the old Chelsea Street Bridge was not in the contemplation of the
Legislature at the time St. 1946, c. 562, was under consideration. In any
event, there is nothing in the provisions of that statute, as enacted, upon
which to predicate any liability on the part of the Mystic River Bridge
Authority to pay any part of the cost of the construction of the proposed
tunnel.
Whether the Legislature should now determine, as a matter of policy,
that the whole or any part of the cost of the construction of the tunnel
should be borne by the Authority, i.e. should be financed from the pay-
ment of tolls, is a matter exclusively within the domain of the General
Court. In dealing with this problem, however, the Legislature must have
in mind the fact that since the Mystic River Bridge Authority has issued
bonds to obtain the funds required by it, the resulting contract of the
bondholders with the Authority cannot constitutionally be impaired and
any provision made with regard to the cost of construction of the tunnel
must be subordinate to the liability of the Authority and its tolls on the
bonds already issued.
Very truly yours,
Francis E. Kelly, Attorney General.
Metropolitan District Commission — Collateral Contract.
May 16, 1950.
Mr. Fred A. Moncewicz, Comptroller.
Dear Sir: — You seek my opinion in reference to a schedule received
by your office from the Metropolitan District Commission requesting a
payment to the Heggie Corporation in the amount of $4,810.29.
From the facts submitted to me it appears that under the terms of a
contract dated November 16, 1948, the commission was to pay to the
corporation the sum of $2,736 for furnishing and installing a walkway
support and trolley beam; the corporation was to paj^ the commission
$930 for the privilege of dismantling and removing certain designated
old tube boilers and salvaging for its oAvn profit the metal obtained from
the boilers, leaving an amount of $1,806 to be paid by the commission
to the corporation.
P.D. 12. 67
I am further informed by the Metropohtan District Commission that
the Heggie Corporation has fully performed and completed the original
contract.
The Heggie Corporation instituted legal proceedings in the Superior
Court for Suffolk County to recover damages suffered by it as a result of a
collateral contract and agreement with the Metropolitan District Com-
mission. Judgment in the amount of $3,004.29 was entered on May 3,
1950.
The matters contained in the collateral contract and agreement had
to do with a subject matter entirely apart from the terms of the original
contract.
On all of the foregoing I am therefore of the opinion that the amount
to be paid to the Heggie Corporation is the combined total of the amount
of the judgment, which is $3,004.29, and the full amount of payment
called for in the original contract, namely $1,806, or a total amount of
$4,810.29.
Very truly yours,
Francis E. Kelly, Attorney General.
Public Works — Public Hearing on Highwaij Layout.
May 17, 1950.
Hon. William F. Callahan, Commissioner of Public Works.
Dear Sir: — In a recent communication you requested my opinion as
to whether certain changes in the proposed layout of a highway in the
city of Boston adopted after a public hearing are such as to make it neces-
sary for the Department of Public Works to hold another public hearing
prior to making the layout.
In reply I advise that this matter is governed by G. L. (Ter. Ed.) r. 81,
§ 5, as most recently amended. Under this section the Department of
Public Works is commanded to hold a public hearing of all parties in-
terested in a proposed State highway in order that it may be determined
that public necessity and convenience require that such way be laid out or
taken charge of by the Commonwealth. In the instant case, a public
hearing was held at which certain changes in the proposed layout were
suggested and after due consideration were adopted. The department
has now determined to construct the highway in accordance with the
original layout as thus modified.
The facts set forth herein do not, in my opinion, necessitate another
public hearing before the layout is recorded.
Very truly yours,
Francis E. Kelly, Attorney General.
68 P.D. 12.
Civil Service — Promotional Examinations in Fire Forces — Terms of
Statute Imperative.
May 18, 1950.
Mr. Thomas J. Greehan, Director of Civil Service.
Dear Sir : — You have asked my opinion as to whether or not a civil
service examination for promotion to the grade of heutenant in the fire
forces of a city having a population under fifty thousand inhabitants may
be limited by you, in the exercise of your discretion as Director of Civil
Service, to those applicants who have served at least three years in the
next lower grade.
The applicable statute relative to applicants who seek to take com-
petitive promotional examinations in police and fire forces of cities and
towns within the official service and in the detective force of the State
Department of Public Safety and in the police force of the Metropolitan
District Commission, which governs the answer to your inquiry, is G. L.
(Ter. Ed.) c. 31, § 20, as most recently amended. This statute reads in
part, with reference to promotional examinations, as follows:
"... In cities and towns with a population of fifty thousand or under,
such applicants shall not be eligible to take any such examination unless
they have been employed in the lower grade or grades admitted to the
examination for at least one year. ..."
The statute cited further provides that in cities and towns with a
population in excess of fifty thousand inhabitants, applicants shall not be
eligible to take such promotional examinations for the first grade above
the lowest grade unless they have been employed in the lower grade for
at least three years.
In my opinion, the express terms of the statute are to be construed as
imperative and may not be varied, as a matter of discretion, by you in the
performance of your duties as Director of Civil Service, but must be fol-
lowed by you as set forth in the express language of the statute.
My answer, therefore, to your inquiry must be in the negative.
Very truly yours,
Francis E. Kelly, Attorney General.
Public Health — Licensing of Convalescent or Nursing Homes — Private or
Charitable.
May 18, 1950.
Vlado a. Getting, M.D., Commissioner of Public Health.
Dear Sir: — You have requested my opinion as to whether or not con-
valescent or nursing homes and boarding homes for the aged, whether
charitable or otherwise, must be licensed under the provisions of the
statutory law of the Commonwealth.
Under St. 1948, c. 618, the Legislature repealed G. L. (Ter. Ed.) c. 121,
§ 22A, relating to the licensing of homes for the aged by the Department
of Public Welfare. In the 1948 statute the Legislature amended G. L.
P.D. 12. 69
(Ter. Ed.) c. Ill, relating to public health, by striking out sections 71 to
73, inclusive, and substituting therefor in that chapter two new sections.
The statute defines a convalescent or nursing home as follows:
"A convalescent or nursing home is defined as any institution, however
named, whether conducted for charity or profit, which is advertised, an-
nounced or maintained for the expn>ss or implied purpose of caring for
three or more persons admitted thereto for the purpose of nursing or con-
valescent care."
The statute defines a boarding home for the aged as follows :
"A boarding home for the aged is defined as any institution, however
named, which is advertised, announced or maintained for the express or
implic^d purpose of providing care incident to old age to three or more per-
sons over sixty years of age who are not acutely ill or in need of medical
or nursing care."
The penal section of G. L. (Ter. Ed.) c. Ill, as amended by St. 1948,
c. 618, reads as follows:
"Section 73. Whoever establishes or maintains, or is concerned in
establishing or maintaining, a hospital, sanatorium, convalescent or nurs-
ing home or boarding home for the aged or is engaged in any such business,
without a license granted under section seventy-one, or whoever being
licensed under said section violates any provision of sections seventy-one
to seventy-three, inclusive, or any rule or regulation made under section
seventy-two, shall for a first offence be punished by a fine of not more than
five hundred dollars, and for a subsequent offence by a fine of not more than
one thousand dollars or by imprisonment for not more than two years.
Duplicate licenses shall be posted conspicuously for institutions maintained
at separate premises, even though they are under the same management."
Wholesome and reasonable laws may be passed by the Legislature under
the police power of the State, which power has to do with public health,
safety, morals and welfare.
"It is too well settled to require extended discussion that whatever
rationally tends to the promotion and preservation of the public health
is within the police power of the State. . . . The public thus are pro-
tected from being imposed upon by the ignorant or misled by the specious
but unqualified." Commonwealth v. Houtenhrink, 235 Mass. 320, 323.
The statutory provisions, relative to the application of which you have
sought my opinion, are wholesome and reasonable legislation in objectives
and purpose, and clearly have to do with the public health and safety.
They are to be construed in the light of common sense and sound reason.
Duggan v. Bay State Street Railway Co., 230 Mass. 370. They apply to
homes conducted under charitable auspices as well as those conducted for
private profit. They apply to homes existing at the time of the passage of
the legislation as well as to those which came into being after the passage
of the legislation. Their enforcement raises no sound question under con-
stitutional ex post facto grounds.
Very truly yours,
Francis E. Kelly, Attorney General.
70 P.D. 12.
Self -I usurers — Retrospective Operation of Statute — Reinsurance.
May 19, 1950.
Department of Industrial Accidents.
Gentlemen: — You have recently asked me for an opinion interpreting
the effect of St. 1950, e. 351, in so far as it amends G. L. (Ter. Ed.) c. 152,
§ 25A, par (2) (c), inserted by St. 1943, c. 529, as later amended by St.
1949, c. 441.
As amended, the pertinent provisions of paragraph (2) (c) follow:
"As a further guarantee of a self-insurer's ability to pay the benefits
provided for by this chapter to injured employees, every self-insurer shall
make arrangements satisfactory to the department, by reinsurance, to
protect it from extraordinary losses or losses caused by one disaster.
"Such reinsurance shall be in such amounts and form as the department
may approve and shall be effected with a company as provided in section
twenty of chapter one hundred and seventy-five, provided, the minimum
amount shall be not less than five hundred thousand dollars. . . ."
You wish to know whether :
1. On the effective date of the amendment a licensed self-insurer whose
reinsurance is less than $500,000 is required forthwith to furnish rein-
surance up to said minimum of $500,000.
2. If the answer to the first question is in the negative, is a self-insurer
required to meet the minimum as a condition to the renewal of his license
after the effective date of the amendment?
Ordinarily a statute will be considered as having a prospective operation
only, but if it appears that the Legislature intended the statute to operate
retrospectively, it will have that effect. Ring v. Woburn, 311 Mass. 679;
Greenaway's Case, 319 Mass. 121.
Before the amendment in question became effective the Department of
Industrial Accidents could in its discretion require any self-insurer to pro-
vide security in such amount as it deemed necessary but no less than a
specified minimum. The industrial hazards of different self-insurers un-
doubtedly vary in intensity and severity and would call for varying
amounts of security.
Section 25 A, paragraph (2) (a), provides, among other things, as follows:
"... The department shall require an additional deposit or further
security when the sum of the self-insurer's liability both incurred or to be
incurred exceeds the deposit or any required reinsurance, or permit a de-
crease of said deposit provided the value of said deposit in no case shall
be less than twenty thousand dollars. ..."
A similar provision with respect to bonds is found in section 25A, para-
graph (2) (6).
It seems clear that the Legislature contemplated that the industrial
hazards of any particular employer may increase before his annual license
as a self-insurer expires and thus require greater reinsurance protection.
The import of said section 25A is to permit the department at any time to
require a self-insurer to provide increased reinsurance.
In view of the above I conclude that St. 1950, c. 351, is retrospective in
P.D. 12. 71
its operation and obliges the department to require a self-insurer immedi-
ately to furnish the minimum amount of security.
I therefore answer your first question in the affirmative ; and your second
question will thus need no answer.
Very truly yours,
Francis E. Kelly, Attorney General.
University of Massachusetts — Dismissal of Non-Civil Service Employee —
Veteran.
May 25, 1950.
Mr. James W. Burke, Secretary, University of Massachusetts.
Dear Sir: — You have recently asked me for an opinion interpreting
the effect of G. L. (Ter. Ed.) c. 30, § 9A, as inserted by St. 1946, c. 269,
and amended by St. 1947, c. 242, under the circumstances hereinafter
described.
Statute 1946, c. 269, took effect August 3, 1946, and provided that a
non-civil service employee of the Commonwealth who is a veteran and
who has held his position for not less than ten years shall not be dismissed
except in accordance with the provisions of G. L. (Ter. Ed.) c. 31 (civil
service law) to the same extent as if his position were classified under said
chapter. St. 1947, c. 242, took effect July 9, 1947, and changed the ten-
year period to three years.
You state that a veteran of World War II employed as a teacher by the
University of Massachusetts since October 8, 1946, has been given notice
that his services will be discontinued at the end of the college year. You
wish to know whether his dismissal must be made in accordance with the
provisions of G. L. (Ter. Ed.) c. 31, relating to notice, cause of dismissal
and an opportunity to be heard.
The answer depends on whether or not the Legislature intended the
three-year period in St. 1947, c. 242, to begin running after July 9, 1947,
the effective date of the statute.
Ordinarily a statute will be construed as having a prospective operation
only unless it appears from the main object sought to be accomplished by
the enactment that the Legislature intended otherwise. Ring v. Woburn,
311 Mass. 679; Greenaway's Case, 319 Mass. 121.
Although we should be wary of attributing paternalistic motives to the
Legislature, nevertheless, a most liberal construction should be given to
legislation giving benefits or protection to those brave men and women
who toiled, wept, bled and risked their lives for their Commonwealth and
Nation. I therefore think the obvious purpose of the General Court was
to protect from involuntary dismissal, except for cause, veterans who after
the effective date of the statute shall have been in the service of the
Commonwealth for at least three years, even though part of the three-year
period ran before the effective date of the enactment. Your question must
therefore be answered in the affirmative.
Very truly yours,
Francis E. Kelly, Attorney General.
72 P.D. 12.
Constitutional Law — Com-pulsory School Attendance — Transportation of
Children — Referendum Petition — Excluded Matters.
June 8, 1950.
Hon. Edward J. Cronin, Secretary of the Commonwealth.
Dear Sir: — You have requested my opinion relative to a referendum
petition which was filed in your office as State Secretary by its proponents.
This referendum petition seeks the repeal of St. 1950, c. 400, a legislative
act recently passed by the Legislature.
You ask, in substance, whether or not the statute is one that may be
lawfully placed on the ballot by you in your official capacity, under the
referendum provisions in the Constitution, for submission to the voters at
the biennial State election in November.
Chapter 400 bore an emergency preamble put upon it by the Legisla-
ture, and for that reason immediately became the law of the Commonwealth
when His Excellency the Governor placed his official signature upon it
May 4, 1950.
This statute provides:
"The first paragraph of section 1 of chapter 76 of the General Laws is
hereby amended by striking out the last sentence and inserting in place
thereof the following: — For the purposes of this section, school commit-
tees shall approve a private school only when the instruction in all the
studies required by law is in English, and when satisfied that such instruc-
tion equals in thoroughness and efficiency, and in the progress made
therein, that in the public schools in the same town; but shall not with-
hold such approval on account of religious teaching, and, in oi'der to pro-
tect children from the hazards of traffic and promote their safety, cities
and towns may appropriate money for conveying pupils to and from any
schools approved under this section.
"Pupils who, in the fulfillment of the compulsory attendance require-
ments of this section, attend private schools of elementary and high school
grades so approved shall be entitled to the same rights and privileges as to
transportation to and from school as are provided by law for pupils of
public schools and shall not be denied such transportation because their
attendance is in a school which is conducted under religious auspices or
includes rehgious instruction in its curriculum."
A careful reading of the statute and study of chapter 400 leaves no
doubt as to legislative purpose and intent in the final drafting and adoption
of the statute as the law of the Commonwealth. The intention of this
statute, inter alia, is to make attendance at private schools a sufficient
compliance with the compulsory school attendance provisions of G. L.
(Ter. Ed.) c. 76. It is a matter of common knowledge that chief among
the private schools of this Commonwealth which, under the provisions of
chapter 400, school committees shall approve if certain conditions therein
specified are satisfied are so-called parochial schools, conducted under the
religious aegis, providing certain religious services for their pupils and
including instruction in religion in their daily curricula.
The words in the first paragraph of the statute under consideration
providing that school committees, whose statutory function it is to approve
P.D. 12. 73
schools, shall not withhold their approval of any schools "on account of
religious teaching" therein are impressive; evidence of this legislative
intention.
Article XLVIII of the Amendments to the Constitution of Massa-
chusetts, The Referendum, III, section 2, Excluded Matters, provides:
"No law that reflates to religion, religious practices or religious insti-
tutions . . . shall be the subjc^ct of a referendum petition."
No definition of "religion," "religious practices," or "religious insti-
tutions " is to be found in the Constitution of the Commonwealth. "These
words in the Amendment are to be interpreted in the light of their context
and of the Constitution and its Amendments as a whole. See Raymer v.
Tax Commissioner, 239 Mass. 410, 412. They 'are to be given their
natural and obvious sense according to common and approvea usage.'
General Outdoor Advertising Co. Inc. v. Department of Public Works, 289
Mass. 149, 158. Opinion of the Justices, 243 IMass. 605, 607; 308 Mass.
619, 626." Opinion of the Justices, 309 Mass. 555, 557. See Debates in the
Massachusetts Constitutional Convention of 1917-1 91 S, Volume II, pages
982, 983.
There can be no doubt that parochial schools, to which chapter 400 has
reference, are "religious institutions" within the meaning of that expres-
sion in Article XLVIII, The Referendum, III, section 2, of the Amend-
ments to the Massachusetts Constitution. It is also apparent that such
schools are concerned with "religion" and with "religious practices" as
those terms are commonly understood.
I am therefore impelled to the conclusion that the provision of chap-
ter 400 which makes attendance at parochial schools sufficient compliance
with the compulsory school attendance statute does come within the
excluded matters specified in Article XLVIII. Hence, I must advise
you that a referendum petition may not properly ask for a referendum
to the people upon chapter 400 of the Acts of 1950, and I must therefore
decline, in keeping with the Constitution, to prepare and furnish a summary
of the statute in question to be placed upon the ballot at the biennial
State election in November.
Upon the view here taken, it is not necessary for me to consider whether
other provisions of chapter 400 come within the excluded matters of
Article XLVIII.
Very truly yours,
Francis E. Kelly, Attorney General.
Constitutional Law — Motor Vehicle Tax and Excise Revenues —
Appropriations.
June 13, 1950.
Committee on Ways and Means, House of Representatives.
Gentlemen : — You recently submitted to me a draft of a proposed
act entitled: "An Act authorizing the Department of Public Works to do
certain work to alleviate the traffic congestion on streets near the State
House."
You request my opinion as to whether the cost of the projects outlined
in said act may be paid out of the highway fund. Expenditures from the
74 * P.D. 12.
highway fund are Hmited by Article LXXVIII of the Amendments to the
Massachusetts Constitution, approved by the voters on November 2,
1948, which reads as follows:
"No revenue from fees, duties, excises or license taxes relating to regis-
tration, operation or use of vehicles on public highways, or to fuels used
for propelling such vehicles, shall be expended for other than cost of
administration of laws providing for such revenue, making of refunds and
adjustments in relation thereto, payment of highway obligations, or cost
of construction, reconstruction, maintenance and repair of public highways
and bridges and of the enforcement of state traffic laws ; and such revenue
shall be expended by the commonwealth or its counties, cities and towns
for said highway purposes only and in such manner as the general court
may direct; provided, that this amendment shall not apply to revenue
from any excise tax imposed in lieu of local property taxes for the privilege
of registering such vehicles."
This provision of our Constitution was interpreted by the Supreme
Judicial Court in an advisory opinion submitted to the Senate on March
30, 1949. So far as pertinent to the present question, the purposes for
which the Legislature may expend the highway fund are "cost of construc-
tion, reconstruction, maintenance and repair of public highways and
bridges."
In accordance with the provisions of the constitutional amendment
and of the advisory opinion of the Supreme Judicial Court, I advise that
the projects enumerated in the proposed act, with the exception of that
contained in paragraph 2 thereof, are such as may be paid for out of the
highway fund, but that the project contained in paragraph 2, to wit, to
rebuild the entire parking area adjacent to the State House to adapt it
for the parking of motor vehicles, is not a purpose so incidental to high-
ways that its cost may be defrayed from the highway fvmd.
Very truly yours,
Francis E. Kelly, Attorney General.
Public Utilities — Prosecution — Commercial Motor Vehicle Violations —
De'partment Examiners and Investigators.
June 14, 1950.
Hon. Thomas A. Flaherty, Chairman, Depaiiment of Public Utilities.
Dear Sir: — You have requested my opinion whether, under the provi-
sions of G. L. (Ter. Ed.) c. 25, § 12F, as inserted by St. 1935, c. 405, § 1,
and acts in amendment thereof, examiners of the Department of Public
Utilities have a duty to enforce and to prosecute all violations c^f all laws
relative to the operation of commercial motor vehicles, or whether the
department is justified in directing them to enforce the provisions of, and
to prosecute only violations of, G. L. (Ter. Ed.) c. 159B and of the rules
and orders of the department passed pursuant thereto.
If examiners are under a duty to enforce and prosecute violations of all
these laws, you further would like to be advised whether this applies to all
commercial motor vehicles or only to commercial motor vehicles with
I
P.D. 12. 75
reference to which the department has granted a certificate under chapter
159B.
It is provided by section 12F:
"There shall be in the department, and under the general supervision
and control of the commission, a commercial motor vehicle division which
shall be under the charge of a director, who shall be subject to chapter
thirty-one and the rules and regulations made under authority thereof.
The commission shall appoint said director. Said division, subject to such
supervision and control, shall perform such functions in relation to the
administration and enforcement of chapter one hundred and fifty-nine B
imposed upon the department by said chapter as the commission may
from time to time determine by order duly recorded in the office of the
commission and open to public inspection. Such an order may also provide
for appeals to the commission from rulings and decisions of said director.
The commission may employ such assistants and employees to serve in
said division as it may deem necessary, and may assign for service in said
division such number, not exceeding twenty-five, of investigators and ex-
aminers as it may deem necessary. Said investigators and examiners, with
respect to the enforcement of the laws relating to commercial motor vehicles,
shall have and exercise throughout the commonwealth all the powers of
constables except the service of civil processes, and of police officers, and
they may serve all processes issued by the courts, or the depai-tment or
the director under chapter one hundred and fifty-nine B."
The commercial motor vehicle division established by this statute, like
other administrative agencies, is purely a creature of the Legislature with-
out inherent or common law powers. Employees of this division, therefore,
can exercise only such authority as is conferred upon them by statute. In
determining the scope of that authority it is necessary to observe the well-
founded rule of statutory construction that only those powers are granted
to administrative agencies which are expresslv or by necessary implication
conferred. East St. Louis, C & W By. v. East St. Louis & C. R. Co., 361
111. 606. State v. New Hampshire Gas d- Electric Co., 86 N. H. 16. Boone-
ville V. Maltbie, 272 N. Y. 40. Northern Pac. Ry. Co. v. Public Service Com-
mission, 47 F. (2d) 778, (D. C. Ore. 1930).
It is my opinion that the extent of the powers of investigators and ex-
aminers of the commercial motor vehicle division is limited by the statute
creating such positions to the enforcement and prosecution of violations
of G. L. (Ter. Ed.) c. 159B, as inserted by St. 1938, c. 483, and of acts in
addition thereto and amendment thereof, and of the rules and regulations
established by the Department of Public Utilities pursuant thereto (see
c. 159B, § 16). Thus, it is expressly provided in G. L. (Ter. Ed.) c. 25,
§ 12F, that the commercial motor vehicle division "shall perform such
functions in relation to the administration and enforcement of chapter one
hundred and fifty-nine B imposed upon the department by said chap-
ter ..." True it is that investigators and examiners of the division are
given, with certain exceptions not material here, the powers of constables
(see G. L. [Ter. Ed.] c. 41, § 94) and of police officers (see G. L. [Ter. Ed.]
c. 41, § 98). But these powers are expressly limited by the statute to "the
enforcement of the laws relating to commercial motor vehicles," which in
the context must be taken to mean the provisions of chapter 159B.
I am not unmindful of Rule 13 of the " Rules and Regulations Established
by the Massachusetts Department of Public Utilities under Authority of
76 P.D. 12.
Chapter 159B of the General Laws, as amended, Relating to Motor Car-
riers and Brokers as Defined in said Act" (see D. P. U. 6705). This rule,
as most recently amended, provides:
"Holders of certificates, permits and licenses shall comply with all laws,
ordinances, by-laws, and regulations relating to the operation of motor
vehicles upon public ways and to the transportation of property."
Assuming that the adoption of such a rule is within the authority con-
ferred upon the Department of Public Utilities by c. 159B, § 16, I am
nevertheless of opinion that this rule does not empower investigators and
examiners of the commercial motor vehicle division to enforce and prose-
cute violations, for example, of the provisions of G. L. (Ter. Ed.) c. 90,
as such. Under Rule 13, supra, a violation of chapter 90, by a person
subject to chapter 159B may be a violation of the latter statute also. The
same act may constitute offenses against several statutes and the violation
of each may be punished. Commonwealth v. Ilarrison, 11 Gray, 308.
Commonwealth v. Shea, 14 Gray, 386. Commonwealth v. Trickey, 13 Allen,
559. Commonwealth v. iMcCabe, 163 Mass. 98. But the powers and
responsibilities of investigators and examiners of the commercial motor
vehicle division in such a case do not extend beyond the enforcement and
prosecution of violations of Rule 13 of the department under c. 159B,
§ 21, which provides penalties for those who "knowingly or willfully"
violate any provision of that chapter or any rule of the department adopted
thereunder.
In view of the foregoing, it is not necessary to elaborate upon your
further question.
Very truly yours,
Francis E. Kelly, Attorney General.
District Court Judge — Pension — Proration of Expense Appellate Service.
June 20, 1950.
Hon. Henry F. Long, Commissioner of Corporatioris and Taxation.
Dear Sir: — You have requested my opinion relative to the proper
method to be adopted in the matter of prorating among several counties
of the Commonwealth the expense of the additional pension payment
to be allowed a district court judge because of his district court appellate
division service over a period of years. In your request you inform me
that this opinion is necessary to assist the Division of Accounts in your
department in the performance of its duties in auditing the accounts of
county treasurers. You further inform me that the judge in question,
who has resigned, has presided for a period of over, ten years in a district
court in the county of Bristol and has attained the age of seventy years.
You also inform me that he has sat as a justice in the appellate division
in his section of the Commonwealth for a period of over ten years. This
appellate division of district courts comprises the counties of Norfolk,
Plymouth, Barnstable, Bristol, Dukes and Nantucket, and that part, of
the county of Suffolk included in the jurisdiction of the Municipal Court
of the West Roxbury District. G. L. (Ter. Ed.) c. 231, § 108, as most
recently amended.
P.D. 12. 77
Under the provisions of G. L. (Tcr. Ed.) c. 82, § 65 A, as most recently
amended, a district court judge who has attained the Ago of seventy years
and who has served as a district court judge for at least ten years may
retire upon pension for life at an annual rate equal to three-fourths of the
annual rate of salary payable to him at the time of such retirement.
It is further provided in the statute under an amendment made by
St. 1946, c. 525, that a district court judge who retires or resigns and who
has served continuous!}^ for ten years prior to such retirement or r(\«ignation
in the appellate division of a district court shall, in addition to all other
amounts received imder the statute, be entitled to receive a p(>nsion for
life equal to three-fourths of the average annual compensation paid him
for such appellate division service during the ten years next preceding
such retirement or resignation.
The district court judge who has resigned is entitled to be paid the
normal pension which is based upon his service in the district court to
which he was appointed, and this pension is to be paid by the county
where that court is located and which paid him his salary. The part of
the pension of the judge, in addition to his normal pension, for judicial
services on the appellate division should be prorated on the basis of the
actual judicial services rendered to each of the several counties, within
the appellate division to which he was assigned, and on the basis of the
respective amounts paid him for such services by each of the several
counties concerned.
Very truly yours,
Francis E. Kelly, Atiorneij General.
Racing — License — Essex Agricultural Society.
June 30, 1950.
State Racing Commission.
Gentlemen : — Reference is made to your recent letter wherein you
request an opinion concerning the following matter:
On April 13, 1950, your commission voted to grant a license to conduct
a dog racing meeting, in connection with an exhibition for the extension
and encouragement of agriculture, to the Essex Agricultural Society at
the Topsfield Fair Grounds, from September 4 to 9, 1950, both dates
inclusive.
You have asked the following three questions:
"1. In view of the zoning by-laws of the town of Topsfield is the vote
of the commission at the meeting held on April 13, 1950 a legal action —
and if so may the commission issue the certificate of license to the Essex
Agricultural Society?
"2. Does the action of the commission by vote of April 13, 1950 con-
flict with the provisions of G. L. c. 128A, § 3 (o)?
"3. Is it proper for the commission to issue the certificate of licen.se to
the Essex Agricultural Society and allow this society to conduct a dog
racing meeting in connection with the Topsfield Fair, September 4 to 9,
1950, both dates inclusive?"
General Laws (Ter. Ed.) c. 128A, § 3 (o), reads as follows:
"No licenses shall be issued to permit dog racing meetings to be held
or conducted in any location where the .surrounding property is substan-
78 P.D. 12.
tially of a residential character, as determined by or defined by a zoning
ordinance or by-law, if any, controlling such location."
The prohibition set forth in the law is effective when the property sur-
rounding the location where the dog racing meeting is to be held is sub-
stantially of a residential character and, as the law indicates, this deter-
mination is made by the zoning by-law itself. In referring to the town
of Topsfield zoning by-laws, I find that in addition to the classification of
a business district there is a classification for central residential district
and a separate classification for outlying residential and agricultural dis-
trict. Bearing in mind these classifications, it appears that the surround-
ing property where the meeting is to be held is not substantially of a resi-
dential character as determined by the zoning by-laws and consequently
the prohibition set forth in G. L. (Ter. Ed.) c. 128A, § 3 (o), is not
applicable.
The zoning by-laws of Topsfield, Section V, relating to non-conforming
uses, and Section VI, relating to prohibited uses, are referred to. Sec-
tion V, paragraph 2, reads:
"In no event shall a non-conforming use of a building structure or use
of land or premises be changed, altered, enlarged, extended, or be held
to include racing with pari-mutuel betting except to the extent already
in use for a period not to exceed six (6) days at the Essex Agricultural
Fair, but to no greater extent."
Section VI reads:
"No property shall be used for racing with pari-mutuel betting except
to the extent already in use for a period not to exceed six (6) days at the
Essex Agricultural Fair, but to no greater extent."
Harness horse racing has been condvicted on the premises for several
years. Under licenses issued to the Essex Agricultural Society, harness
or running horse racing meetings, including night racing, have been held
in 1946, 1947, 1948 and 1949 at the location in question.
The language of these by-laws does not distinguish or separate horse
racing from dog racing but refers to "racing with pari-mutuel betting."
The language does not indicate a prohibition against dog racing and from
all the facts and circumstances submitted by you there does not appear
to be a legal objection to the vote of your commission on April 13, 1950,
and I therefore answer your questions as follows:
1. The vote of the commission on April 13, 1950, is a legal action and
the commission may issue a certificate of license to the Essex Agricultural
Society.
2. The action of the commission by vote of April 13, 1950, does not
conflict with the provisions of G. L. (Ter. Ed.) c. 128A, § 3 (o).
3. It is proper for the commission to issue the certificate of license to
the Essex Agricultural Society and allow this society to conduct a dog
racing meeting in connection with the Topsfield Fair, September 4 to 9,
1950, both dates inclusive.
Very truly yours,
Francis E. Kelly, Attorney General.
P.D. 12. 79
INDEX TO OPINIONS
PAGE
Agriculture; furnishing of surety bonds by licensed poultry dealers . 21
Alcoholic Beverages Control Commission; license; revocation; hearing
mandatory 47
Annuities, increase in to dependents of deceased policemen .... 23
Appropriations; public works; highway program 15
Boat, use of; Division of Marine Fisheries 14
Boston Police Department; increase in annuities to dependents of deceased
policemen 23
Boxing: age of contestants 28
Child, illegitimate; domicile; pubhc welfare 40
Children, transportation of; compulsory school attendance; referendum
petition; excluded matters 72
Civil service :
Promotional examinations in fire forces; terms of statute imperative . . 68
Rules; veterans' preference in competitive promotional examinations . 31
Seniority rights as to salary, vacation and sick leave 61
Seniority rights of veterans ; appointment, promotion 59
Temporary positions ; procuring of oath from employees; overtime . . 33
Commercial motor vehicle \'iolations ; public utilities ; department examiners
and investigators 74
Compulsory school attendance; transportation of children; referendum pe-
tition ; excluded matters 72
Constitutional law :
Compulsory school attendance; transportation of children; referendum
petition ; excluded matters 72
Motor vehicle tax and excise revenues ; appropriations 73
Contract, collateral; Metropolitan District Commission 66
Contracts, "cost plus"; deduction of value of unconsumed small tools and
certain materials under ■. 26
District court judge; pension; proration of expense appellate service . . 76
Domicile:
Illegitimate child; public welfare 40
Paraplegic veteran 36
Education; eUgibihty of teacher for sabbatical leave 19
Electrolysis; private trade schools; hcense 43
Emergency Commission; powers and authority; solid fuels; seizure; ration
and allocation ; regulation of sales ; penalties 47
Employees of Commonvv-ealth; workweek; holidays; payment for work on
hohday 52
Employment Security Counsel, paid out of Federal grants of funds, rein-
stated after retirement ' ... 17
Essex Agricultural Society; racing; hcense 77
Examinations, competitive promotional; veterans' preference in; civil .serv-
ice rules 31
Fire forces, promotional examinations in; terms of statute imperative . . 68
Highwaj^ laj^out. public hearing on 67
Highway program; appropriations 15
HoUdays, payment for work on ; employees of Commonwealth ... 52
Hospital medical officer; limited registration in Massachusetts, if otherwise
qualified 56
80 P.D. 12.
PAGE
Legal holidays in Suffolk County ; compensation for work performed on 57
" Leisure time activities " ; Old Age Assistance 29
License :
Racing; Essex Agricultural Society 77
Revocation; Alcoholic Beverages Control Commission ; hearing mandatory 47
'56
14
Limited registration in Massachusetts of hospital medical officer
Marine Fisheries, Division of; use of boat
Massachusetts, University of; dismissal of non-civil service employee; vet-
eran 71
Medicine, assistants in; limited registration; practicing medicine in homes
under G. L. (Ter. Ed.) c. 112, §9A 24
Medicine, registration in; qualifications; certificates of; standards for ex-
amination .39
Mental Health, Department of; student nurses; oath 54
Metropohtan District Commission; collateral contract 66
Motor vehicle tax and excise revenues; appropriations; constitutional law . 73
Mystic River Bridge Authority; construction expense of water main . 65
National Office of Vital Statistics, contracts with; State Secretary . . . 37
Nurses, student; oath; Department of Mental Health 54
Nursing homes, licensing of ; private or charitable .68
Oath:
Procuring of from employees; temporary positions; overtime . . 33
Requirement upon entering service of Commonwealth and barring certain
persons therefrom 22
Student nurses; Department of Mental Health 54
Old Age Assistance; "leisure time activities"; referendum petition; Con-
stitution; excluded matters 29
Optometry, Board of Registration in; authority to make rules and regula-
tions; legality thereof 19
Paraplegic veteran; domicile 36
Pension; district court judge; proration of expense appellate service . . 76
Policemen, increase in annuities to dependents of 23
Poultry dealers ; furnishing of .surety bonds by 21
Promotional examinations in fire forces; terms of statute imperative . . 68
Public health :
Licensing of convalescent or nursing homes; private or charitable . 68
Regulations ; local boards may set standards higher than required minimum 46
Public utilities; prosecution; commercial motor vehicle violations; depart-
ment examiners and Investigators 74
PubHc welfare; domicile; illegitimate child ... ^ ... 40
Public works :
Deduction of value of unconsumed small tools and certain materials under
" cost plus " contracts 26
Expenditures; highway program; appropriations 15
Public hearing on highway layout 67
Racing; license; Essex Agricultural Society 77
Referendum petition:
Compulsory school attendance ; transportation of children .... 72
Constitution; excluded matters; Old Age Assistance; "leisure time ac-
tivities" 29
Reformatory for Women, definite sentence of woman to; effect of indefinite
sentence to be served on and after 58
Reinsurance; retrospective operation of statute; self-insurers ... 70
Retirement; Employment Security Counsel 17
Rules and regulations; legality thereof ; Board of Registration in Optometry 19
Sabbatical leave; teacher eligible for 19
Secretary of the Commonwealth; contracts with National Office of Vital
Statistics 37
P.D. 12. 81
Self-insurers; retrospective operation of statute; reinsurance .
Seniority rights as to salary, vacation and sick leave; civil service .
Seniority rights of veterans; appointment; promotion; civil service
Sentence of Woman to Reformatory for Women ; effect of indefinite sentence
to be served on and after definite sentence
Solid fuels; seizure; ration and allocation; regulation of sales; penaltie?
Emergency Commission; powers and authority ....
Special justices; number allowed Central District Court of Worcester .
Strike; eligibility of veteran to veterans' benefits when engaged in lawful
strike
Suffolk County, legal holidays in; compensation for work performed on
Surety bonds; furnishing of by Ucensed poultry dealers ....
Teacher eligible for sabbatical leave . . . "
Tools; deduction of value of unconsumed small tools and certain material
under "cost plus" contracts
Trade schools, private; license; electric current in hair removal
Veteran :
Dismissal of non-civil service employee; University of Massachusetts
Paraplegic; domicile
Senioritj' rights of ; appointment; promotion; civil service .
Wife of; also veteran in own right; entitled to veterans' benefits apart
from husband's right
^'eterans' benefits:
Eligibility to when veteran engaged in lawful strike ....
Reimbursement to cities and towns
Veterans' preference in competitive promotional examinations; civil service
rules
Veterans' Services; paraplegic veteran; domicile
Water main, construction expense of; Mystic River Bridge Authority
Worcester, Central District Court of; number of special justices allowed
PAGE
70
61
59
58
47
30
25
57
21
19
20
43
71
36
59
44
25
32
31
36
65
30
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