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

Public Document No. 12 



Ci)e Commontueaiti) o( a@agsac{)usnt$ 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1951 




Public Document i No. 12 



Ciie Commontaiealtt) of d^ansatbusetts 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1951 



I 




Publication of this Docitment Appboved bt Geobqe J. Cbonin, State Pubchasimq Aobnt 
»00-12-'52-908281 



STAJE LiRARY OF MASSACtiOl^llT^ 

APR 30 1953 
aVlfl HOUSE. lOSTON 
MASS GFfnahLS 






Cbe Commontoealtb of e@a$saciiu$ett!3! 



Department of the Attornet Genbral, 
Boston, December 28, 1961. 

To the Honorable Senate and House of Represeydatives. 

1 have the honor to transmit herewith the report of the Department 
for the year ending Jime 30, 1951. 

Respectfully submitted, 

FRANCIS E. KELLY, 

Attorney General. 



€:bt Commontoealtf) of 0^a00ac!)U0ett!8! 



DEPARTMENT OF THE ATTORNEY GENERAL 
State House 



Attorney General 
FRANCIS E. KELLY 



Assistant Attornexjs General 

Timothy J. Murphy David H. Stuart^ 

Francis J. Roche ^ Samuel H. Green* 

Henry P. Fielding Lenahan O'Connell 

Charles Alpert^ William J. O'Neill 

Garrett J. Barry ^ Michael H. Selzo 

William S. Kinney Joseph S. Vahey 

Edward P, Healy Charles H. Walters 

H. William Radovsky^ James G. Wolff 

James J. Bacigalupo Fr^nk Ramacorti * 

John J. Bresnahan Lawrence E. Ryan 

Bernard J. Killion * Eva G. Silva 

David Miller Jeannette Chisholm Sullivan 

Assistant Attorneys General assigned to State Housing Board 
Thomas C. Dolan Maurice M. Goldman 

Assistant Attorneys General assigned to Division oj Employment Security 
Albert M. Cicchetti Edward J. Nantoski 

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

Secretary to the Attorney Gen.eral 
James T. Bur^e 

Chief Clerk to the Attorney General 
Harold J. Welch 

Administrative Legal Consultant to the Attorney General 
James J. Kelleher 

Director of Division of Collections 
W. Forbes Robertson^ 

> Si>ecially assigned to N. Y., N. H. & H. R.R. case. « Appointed Dec. 1, 1950. 

» Specially assigned to New England Tel. & Tel. Ck). case. • Appointed Oct. 11, 1950. 

» Deceased May 28, 1951. ' Deceased, June 6, 1951. 
* On leave of absence. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1950, to June 30, 1951 



A ppropriations. 

Attorney General's Salary ...... 

Administration, Personal Services and Expenses 

Claims, Damages by State Owned Cars .... 

Small Claims ....... 

Unclaimed Bank Deposits Recovery .... 

New York, New Haven and Hartford Railroad Investigation 
Veterans' Legal Assistance ...... 

Total 



$12,000 00 

240,590 00 

1.5,782 00 

8,000 00 

8,410 92 

15,000 00 

20,000 00 

$319,782 92 



Expenditures. 

Attorney General's Salary ...... 

Administration, Personal Services and Expenses 

Claims, Damages by Stale Owned Cars .... 

Small Claims ...... 

Unclaimed Bank Deposits Recovery .... 

New York, New Haven and Hartford Railroad Investigation 
Veterans' Legal Assistance ...... 

Total 



$12,000 00 

235,668 08 

15,780 74 

7,997 98 

341 12 

14,907 61 

15,161 08 

J30 1,856 61 



Financial statement verified (under requirements of c. 7, § 19, of the General Laws), 
November 29, 1951. 



Approved for publishing. 



By JOSEPH A. PRENNEY, 

For the Comptroller. 



FRED A. MONCEWICZ, 

Comptroller. 



Ci)e Commontuealtl) of ^a$0ac|)U0ett0 



Department of the Attorney Gen^baIi, 
Boston, December 28, 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, 1951, totaling 16,159, are tabulated as follows: 

Extradition and interstate rendition ....... 90 

Land Court petitions . . .110 

Land damage cases arising from tlie taking of land: 

Department of Pul)lic Works ........ 52,5 

Metropolitan District Commission ....... 52 

Department of Mental Health ........ 2 

Armory Commission .......... 1 

Miscellaneous cases, including suits to require the filing of returns by corpora- 
tions and individuals and the collection of money due the Commonwealth 5,189 
Estates involving application of funds given to public charities 815 
Settlement cases for su]iport of persons in state hospitals .... 65 

Pardons: 

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

c. 127, § 152, as amended ......... 123 

Workmen's compensation cases, first rejwrts ....... 4,761 

Cases in behalf of Division of Employment Security ..... 1,406 

Cases in behalf of Veterans' Di\'ision ........ 3,020 

During the year the Attornej^ CJeneral and his staff of assistant attorneys 
general, in compliance with the provisions of G. I;. (Ter. Ed.) c. 12 as well 
as other provisions of law, have appeared in the courts of the Common- 
wealth for State departments, boards, commissions and officers in the 
prosecution or defense of suits and other civil proceedings in which the 
Commonwealth is a party or in which it has an interest. In many of these 
civil proceedings the acts and doings of such departments, boards, com- 
missions and officers are called in question, especially where extraordinary 
remedies are resorted to by parties petitioner. 

An important duty of the Attorney General is the renderuig of formal 
official opinions to the Governor, to the twenty State departments of the 
Commonwealth and to the various divisions thereof, as well as to com- 
missions, boards and other pubHc officers of the State. In addition to the 
formal opinions of the Attorney General, a great number of informal 
written opinions have also been rendered by assistant attorneys general 
for the purpose of aiding such officials in the sound performance of their 



8 P. D. 12. 

duties. Constant conferences on questions of law and procedure have 
taken place between the Attorney General or assistant attorneys general 
and officers of these various State agencies. There have also been many 
contacts during the year by the office of the Attorney General with legis- 
lative committees in the matter of legal opinions and advice relating to 
existing as well as prospective laws. 

The increase in administrative boards during recent years has materially 
created burdens with which the office of the Attorney General must con- 
cern itself. This additional work for reasons of efficiency requires the 
assignment on full time of a number of assistant attorneys general. 

As part of their duties several of the assistant attorneys general are 
called upon, by virtue of statutory provisions, to sit as members of certain 
administrative boards. On frequent occasions they are also called upon to 
appear before, and conduct hearings before, State commissions and boards 
and to give advice on the law with reference to such hearings. 

Public Utilities. 

Due to greatly increased costs for material and labor, many of the 
public utilities have sought increases in rates from the Department of 
Public Utilities. In cases where that department has seen fit to grant 
increases which were somewhat less than requested, utility companies 
have in some instances sought rehef from the Supreme Judicial Court 
under G. L. (Ter. Ed.) c. 25, § 5, relative to the claims set up by them of 
confiscatory rates. At all times I have emphasized that the public interest 
should be the determining factor in the court proceedings — that is to say, 
that the rates must be ultimately determined on the basis of the value 
of the service to the consumer. As a matter of law, although a utility is 
entitled to a fair return on its investment in property devoted to the public 
use, no service is worth more than its value to the user or the people as a 
whole. The record indicates that my efforts as Attorney General have 
resulted in substantial savings to the general public and at the same time 
have assured the public utilities sufficient returns to enable them to per- 
form their duty of rendering efficient and satisfactory service to the citizens 
of the Commonwealth. 



Obscene Literature. 

The endeavor to stem the tide and growth of obscene literature, especially 
that type of cheap books which falls, unfortunately, into the hands of 
school children, has proceeded by reasonable and sensible means quietly 
and effectively during the year. The main efforts of the office of the Attor- 
ney General have been made with reference particularly to juvenile reading 
of a corrupt character which is considered to be of a nature likely to lower 
the morals of youth. This movement, established when I first assumed 
office, is carried on in such a way as not to advertise the objectionable 
publications called into question. Under this system, pubhshers and 
book sellers have had placed upon them the obligation and duty of volun- 



p. D. 12. 9 

tarily cleaning their own houses. In this effort they have given com- 
mendable co-operation to the committee of civic-minded men and women 
called into existence by me as Attorney General several years ago. While 
a great advance has been made in the last three years in the practical 
prevention of undesirable and corrupt cheap-priced books falling into the 
hands of the young, much work yet remains to be done to eradicate the 
evil. Watchful care and constant and sustained effort will continue to be 
necessary to attain and maintain the desired result. That result I shall 
constantly seek to reach and maintain while I am the Attorney General 
of this Commonwealth. Constant and vigorous alertness and sound 
watchfulness must be ever ready to deal with cases where literature ends 
and pornography begins. 

Town By-Laws. 

An assistant attorney general has been assigned to devote a considerable 
portion of his time to examine carefully all proposed town by-laws which, 
under the laws of the Commonwealth, can not become effective until 
they have received the approval of the Attorney General. By-laws which 
infringe upon the freedom of speech, the freedom of the printing press, 
or the freedom of religion will be, as heretofore under my administration, 
promptly disapproved by me as Attorney General. 

Veterans. 

During the past year the veterans' division in the Department of the 
Attorney General has functioned daily with commendable devotion to 
the purposes for which it was instituted. In dealing with special problems 
and various interests of veterans, over three thousand matters pertaining 
to veterans have been handled during the year. This important work 
has been of great advantage to many of those who have served their 
country in the armed forces of the Nation in time of war. Results em- 
phatically warrant that this work be carried on. 

Communism. 

llie world-wide evils of Communism and the dangers thereof to the 
institutions and concepts of the form of government under which we enjoy 
manifold blessings, freedom and liberty, perhaps to a greater degree than 
in any country in the world, must have the undivided attention not only 
of public officials but of all good citizens throughout the days to come. 
The office of the Attorney General stands ready to combat the evils of 
Communism, under whatever name or disguise, when facts warranting 
active procedures present themselves. 

Conclusion. 

To His Excellency the Governor of the Commonwealth, to the Legis- 
lature, and to all the other constitutional officers of our State government 
I wish to express my appreciation of their helpful co-operation during the 



10 p. D. 12. 

past year. To the assistant attorneys general who have served ably and 
faithfully in the performance of their piibhc duties during the year I 
commend their work with appreciation. I have also noted and express 
my appreciation of the faithful and efficient work of the civil service em- 
ployees and others in the Department of the Attorney General, including 
the chief clerk and the confidential secretary of the Attorney General. 

As I have heretofore said in my annual reports, to serve the people 
of the Conmionwealth 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, 

Attorney General. 



OPINIONS. 



Public Works — Charles River Bridge — • Right to lay Cas Main — Con- 
stitutional Law. 

July 13, 1950. 
Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir: — You have asked me for an opinion interpreting the effect 
of the law under the circumstances hereinafter describ(>d. 

You state that the Massachusetts Pipe Line Gas Company was created 
by St. 1896, c. 537, and that section 4 of said act declared: 

"The company may . . . subject to the conditions hereinafter set 
forth, lay, construct, . . . and operate its pipe lines ... in, along, 
through, under, across or over any public ways, water courses . . . canals, 
bridges or subways; . . . But nothing herein shall be construed as au- 
thorizing the location . . . in, over, through, under or upon any subway, 
navigable water course, cemetery or public park . . . until said company 
has first obtained the consent of the . . . authorities having control of 
such subways, cemf^teries, navigable water courses, parks ..." 

and that section 5 of said act, as amended by St. 1903, c. 417, § 9, provided 
that if the company desired to operate its pipe lines through the public 
ways of a city or town it might petition the aldermen or selectmen for 
permission to do so and may appeal an adverse decision to the Board of 
Gas and Electric Light Commissioners, which could in turn gi'ant such 
locations as it deemed proper. 

You further state that the Boston Consolidated Gas Company (which, 
in its consolidation by St. 1903, c. 417, succeeded to all the rights of the 
Massachusetts Pipe Line Gas Company) wishes to lay a thirty-six inch 
gas pipe on the Charles River bridge (and its approaches), which is a part 
of the proposed Central Artery project in Boston; and that to permit 
this would require the redesign of a heavier and stronger structure, thereby 
increasing the cost of the bridge and approaches. 

You wish to know whether section 4 of St. 1896, c. 537, would give this 
right without the permission required by G. L. (Ter. Ed.) c. 81, § 21, 
which provides that "no state highway shall be dug up ... or obstruc- 
tion or structure placed thereon . . . without the written permit of the 
department" of public works. 

All statutes must be construed according to the legislative intent ap- 
pearing from the language thereof in connection with the subject matter 
and object to be accomplished. Commonwealth v. Welosky, 276 Mass. 
398, 401, 402. National Fire Insurance Co. v. Goggin, 267 Mass. 430, 436. 
Furthermore, statutes should be interpreted in conjunction with other 
applicable statutes to the end that there may be an harmonious and con- 



12 P. D. 12. 

sistent body of law. Morse v. Boston, 253 Mass. 247, 252. Kelley v. 
Jordan Marsh Co., 278 Mass. 101, 111. 

Statutes apparently inconsistent with each other, in whole or in part, 
must be construed so as to give reasonable effect to both, unless there be 
some positive repugnancy between them. Brooks v. Fitchhurg li: Leomin- 
ster St. Ry., 200 Mass. 8, 17. 

Following these principles are opinions of former Attorneys General. 
In I Op. Atty. Gen. 317, there was a seeming conflict between St. 1893, 
c. 476, § 14 (the forerunner of the aforesaid G. L. [Ter. Ed.J c. 81, § 21), 
which required consent of the Massachusetts Highway Commission for 
digging State highways for the purpose of laying or placing pipes, sewers, 
posts, wires, rails, or for other purposes, and Pub. Sts. c. 113, § 7, which 
gave selectmen and aldermen the right to grant franchises for street rail- 
ways. That opinion declared that aldermen and selectmen could deter- 
mine the wisdom of granting such franchises for the operation of railways 
over the public highways within their respective municipalities even if 
said ways were State highways, but the consent of the Massachusetts 
Highway Commission would still have to be procured for construction on 
such State highways. 

In III Op. Atty. Gen. 242 the town of Plainville was authorized by St. 
1908, c. 404, to construct for its water supply, aqueducts, conduits, pipes, 
and other works over any land, water courses, and public or other ways; 
and for said purpose to dig up or raise and embank any such lands, high- 
ways, or other ways. R. L. c. 47, § 11, provided that no structure shall 
be placed on a highway except in accordance with a permit from the 
Massachusetts Highway Commission. That opinion declared that St. 
1908, c. 404, did not give authority to dig open a State highway without 
the permission required by R. L. c. 47, § 11. 

You also state that permits under said G. L. (Ter. Ed.) c. 81, § 21, 
have heretofore been required by your department before structm-es could 
be placed upon bridges which were part of State highways. This is sig- 
nificant where the language of a statute is ambiguous. In such event, 
the contemporaneous construction placed thereon by an officer charged 
with the perform.ance of public duties is strong evidence of its meaning. 
Burrage v. County of Bristol, 210 Mass. 299, 301. Bolster v. ComW of 
Corp'ns it Tax'n, 319 Mass. 81, 86. 

It is contended, however, that in section 4 of St. 1896, c. 537, consent 
of certain authorities to construct pipe lines is specifically required as to 
water courses, railways and subways but no such consent is mentioned 
as to public ways, canals, or bridges; and therefore the absence of such 
specific reference means consent was not required. 

Such a construction would lead to the absurd result, however, that 
under chapter 81, section 21, the Department of Public Works could 
withhold consent to lay pipe lines under a State highway leading to a 
bridge which was part of said highway (action I understand the gas com- 
pany concedes is proper), but could not interfere with the construction of 
massive and unsightly pipes on the bridge itseK. If it were contended 
that in accordance with the literal construction of section 4 of St. 1896, 
c. 537, the consent of the Department of Public "Works was not necessary 
even as to laying pipes under a State highway, then again the result would 
be incongruous. If the gas company had to use the ways of a city or town 
for its pipes, it would need permission under section 5, but when local 
ways joined or intersected a main artery of travel (controlled by the 



p. D. 12. 13 

Department of Public Works) located within said town, no permission 
would be required to dig into the State highway. An intention to ac- 
complish 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. 

A strictly literal construction of a statute should not be adopted if the 
result will be to thwart or hamper the obvious purpose of the statute, 
and if another interpretation is possible which will not have that effect. 
Frye v. School Committee of Leicester, 300 Mass. 537. Cullen v. Mayor of 
Newton, 308 Mass. 578. Furthermore, it is questionable whether the 
Legislature could constitutionally give to one private person the un- 
trammeled and unrestricted right to perform acts which may very well 
inflict a burdensome use upon a public highway. 

I therefore answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Administration and Finance — Emergency Employee — Overtime Com- 
pensation. 

Aug. 11, 1950. 
Hon. Thomas H. Buckley, Commissioner of Administration. 

Dear Sir: — You have asked my opinion interpreting the law under 
the circumstances hereinafter described. 

You state that an emergency employee is one who is appointed for 
only thirty working days under G. L. (Ter. Ed.) c. 31; that the Civil 
Service Commission has ruled that said thirty-day period is thirty w^ork- 
ing days and not thirty calendar days; that if said employee does not 
work on any of said days he is not paid; and that the appointing authority 
may thus keep him employed until he has worked thirty such days. 

In your request for my opinion you propound two questions : 

"1. If such emergency employee works on a holiday, is he entitled 
to a day's pay? 

"2. If such emergency employee works more than eight hours on 
one day and more than forty hours in one week is he entitled to overtime 
pay?" 

General Laws (Ter. Ed.) c. 30, § 24A, provides that if any person em- 
ployed by the Com.monwealth is required to work on a statewide holiday 
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. 

General Laws (Ter. Ed.) c. 149, § 30, restricts the service of laborers, 
workmen, mechanics, foremen and inspectors employed by the Common- 
w^ealth to eight hours a day, forty-eight hours in any one week and six 
days in any one week except in cases of emergency. 

Section 30A of said chapter provides that the service of all persons 
employed by the Commonwealth, with certain exceptions, is restricted to 
five days in any one week and no more than forty hours, and that all 



14 P. D. 12. 

service in excess of forty hours in any one week rendered by an employee 
subject to this section shall be compensated for as overtime. 

On March 10, 1950, I gave you an opinion with reference to other 
aspects of the subject matter involved in your present request. The 
following quotation from that opinion is here pertinent: 

"In ascertaining the legislative intent we must read the statutes in 
question 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. 
Applying the above principles it would appear that the Legislature, moti- 
vated by changing social and economic conditions, wished to establish a 
general labor policy; namely, that certain State employees shall labor 
only five days and no more than forty hours in a week (c. 149, § 30A) and 
certain other employees no more than eight hom-s in a day (c. 149, § 30). 

"As to those employees subject to said section 30A there is no limit 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 employee would be working more than eight hours on some daysf 

"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 nmnber of hours one has to 
work on this holiday or during the remaining week in order to qualify." 

It would appear from the foregoing intendment of the Legislature that 
an emergency employee would come within the description of those en- 
titled to an extra day's pay under said chapter 30, section 24A, and to 
overtime pay under said chapter 149, section 30A. There does not, how- 
ever, appear to be any provision of law granting overtime pay for work 
in excess of eight hours on any one day. 

I therefore answer your first question in the affirmative and your second 
question in the affirmative only as to work of more than forty hours in 
any one week. 

Yory truly yours, 

Francis E. Kelly, Attorney (ieiwral. 



Administration and Finance — State Employees — Military Reserves — 

Payments by State. 

Aug. 21, 1950. 
Hon. Thomas H. Buckley, Commissioner of Administration. 

Dear Sir: — ^ You have asked my opinion interpreting the effect of 
G. L. (Ter. Ed.) c. 33, §§ 11, 54 and 105, and St. 1941, c. 708, under the 
circumstances hereinafter described. 

You state that a number of employees of the Commonwealth are mem- 
bers of the National Guard, organized reserve of the Army of the United 
States, Naval Reserve forces, or Officers' Reserve Corps; and that many 
of them may soon, if not already ordered to do so, be required to leave 



p. D. 12. 16 

their employment and render active service with their respective organiza- 
tions for periods ranging from five to ninety days. 

You also state that on January 26, 1940, the then Attorney General 
rendered an opinion to the then Commissioner of Public Works to the 
effect that an employee of the Commonwealth who was ordered to Fort 
Bonning, Georgia, as a student for the National Guard and Reserve 
Officer's com-se for a three months' period would be (entitled to his pay 
from the Commonwealth during his period of service with the organized 
militia. 

You wish to know: 

1. Whether St. 1941, c. 708, has limited the (effect of said opinion of 
January 26, 1940. 

2. What are the rights of members of the organized reserve of the Army 
of the United States and the Naval Reserve forces? 

3. "\^^lat arc the rights of members of the Officers' Reserve Corps of 
the United States Ai-my or Navj--? 

4. How are the rights of the foregoing personnel affected by the face 
that they are serving the Commonwealth on a temporary or emergency 
basis or as public officials? 

General Laws (Ter. Ed.) c. 33, § 54, provides: 

"Any person in the service of the commonwealth . . . shall be entitled 
during the time of his service in the organized militia, mider sections 
eleven, sevent(HMi, eighteen, nineteen, one hundred and five or one hun- 
dred and fifty-four, or during his annual tour of duty of not exceeding 
fifteen days as a member of the organized reserve of the army of the 
United States or of the United States naval reserve forces, to receive pay 
therefor, without loss of his ordinary remuneration as an employee or 
official of the commonwealth ..." 

Section 6 of chapter 33 provides that the organized militia shall be 
composed of . . . the land forces as defined in section 66 and the naval 
forces; and section 66 provides that the land forces shall consist, among 
others, of the active and inactive National Guard. 

Section 11 of chapter 33 provides that the Commander-in Chief "may 
order out any part of the organized militia for escort and other duties." 

Sections 17. 18 and 19 provide that the Commander-in-Chief may call 
out the organized militia to deal with invasions, insurrections, tumults, 
riots or public catastrophes. 

Section 105 provides: "The land forces shall perform during each year 
not less than fifteen days' training under service conditions at times and 
places designated by the commander-in-chief." 

Section 154 provides that the Commander-in-Chief may prescribe the 
terms and conditions under w'hich, and the types of duty for which, officers 
and enlisted men of the naval forces shall be entitled to receive compensa- 
tion and transportation. 

Provisions are made hi St. 1941, c. 708, for the protection of those 
employees of the Commonwealth who, after January 1, 1940, terminated 
their services with the Commonwealth to serve in the armed forces of the 
United States. 

The opinion of the Attorney General of Jaimary 26, 1940, rightly de- 
clared that a person in the service of the Commonwealth who was a mem- 



16 P. D. 12. 

ber of the organized militia and was ordered by the Commander-in-Chief 
of the Commonwealth to perform duties under chapter 33, section 11, or 
to submit to a tour of training under section 105, was entitled to his State 
pay for the period of his ordered duty, even though it exceeded fifteen 
days. 

It seems clear from the language of section 54 that the Legislature 
wished to preserve to the full the State pay of its servitors who were part 
of its own military forces as distinct from the military or naval branches 
of the Federal Government. As to the latter, the Legislature wished to 
preserve only fiiteen days of such State pay. Section 54 specifically 
states: "Any person in the service of the commonwealth . . . shall be 
entitled, dui'ing the time of his service in the organized militia ... to 
receive pay therefor, without loss of his ordinary remuneration as an 
employee or official of the commonwealth. . . ." Section 54 also states: 
"Any person in the service of the commonwealth . . . shall be entitled 
. . . during his annual tour of duty of not exceeding fifteen days as a 
member of the organized reserve of the army of the United States or of 
the United States naval reserve forces, to receive pay therefor, without 
loss of his ordinary remuneration as an employee or official of the com- 
monwealth . . ." 

When, however, the members of the organized militia or of the Army 
or Naval Reserves are inducted into the Federal military or naval service 
section 54 is no longer operative as to them; and St. 1941, c. 708, would 
not be applicable. 

I therefore answer your questions as follows : 

1. Statute 1941, c. 708, does not apply and does not limit the effect of 
the Attorney General's opinion dated January 26, 1940. 

2. Members of the organized reserve of the United States Army and 
Naval Reserve forces are entitled to their State pay during their annual 
tour of duty but not exceeding fifteen days. 

3. The m.embers of the Officers' Reserve Corps of the United States 
Army or Navy are a part of the organized reserve of the United States 
Army or Navy and therefore entitled to the same rights as those described 
in the preceding answer. 

4. The State pay should run for that period of time during which the 
employee or public official would have been serving the Commonwealth 
but for the interruption of his service by the performance of the duties 
described alcove. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Metropolitan District Commission — Police Officers — Overtime Service — 

Appropriations — War. 

Oct. 24, 1950. 

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

Dear Sir : — You ask my opinion whether you have the right to pay 
the police officers of your department for overtime service rendered by 
them, especially since money has been appropriated for this purpose. 



p. D. 12. 

17 

We must ascertain the intention of the Legislature in this regard bv 
giving the words used in statutes their ordinary meaning, having fn mind 

fcTg t£ T2T''w '' ^rrfYJ^y h enactments Iwr' 
uase, 6i\) Masb. 421. We must aJso look beyond the letter of tHp «+o+„+^ 

where a strictly literal construction would be inconsisten \^th\lf tgfs 
lative intent. Pncev. Railway Express Agency, 322 mLs 476 IT 
Cullenv. Mayor of Newton, 308 Mass 578 ' 

It IS generally conceded that department heads have the right to de 
termine the "established hours of service" of the employeefin th^; 
respective departments. Prior to any statutory provSons JSitiL the 
number of hours of the work week of certain employees and providi?. for 
overtime, no employee (with certain exceptions) could be 0X0^^0 work 
beyond said established hours without his consent. In order however to 
promote efficiency and to achieve the purposes for which the demrtri'ent 
was created it could very well be argued with some force that thrdepart 
ment head should have implied or ancillary authority in emergencies to 
secure and compensate overtime labor, provided the department had 
received an appropriation for that purpose uepariment had 

Pohce officers also have "estabhshed hours of service" even though 
they are subject to call when not on actual duty. The onrdiffeience 
rhirr \\T ^^^^«^her employees with respect'^to overtime sefv ice is 
that the latter must give their consent to perform said overtime service 
The question of compensation, however, should be dealt with in the same 
iruTof strv?c7'Tnv ""^'^ ' 'T ^.^^-'^^ ^" establish\Vnunrr"o 
Ws stuTb:" om1>7nsSTor."''"'^' " ^"^^^^^"^^ ^^^^^ ^^-^ 
This principle v:as recognized in 1943 when the Commission on Ad 
ministration and Finance, with the approval of the CoSZm Skated 
rules and regulations requiring the payment of overtin^to Lw 3ovee 
or the duration of the war and one year thereafter; and i thfempte 
total sein^ice exceeded forty-eight hours he was to i-eceive time a^d a half 
h^^regular basic rate for such services in excess of fort^-eigh't horn' per 

From a technically legal point of view World War II has not vet been 
declared at an end and the aforesaid rule is operative ^ 

beclnse r'T'^^rT"^' ^ M^'^'n'o ^«^? *^^ Legislature intended otherwise 
because G^L. (Ter. Ed.) c. 92, § 62, gives the pohce in your deDartmont 
one day off m six; and because G. L. (Ter Ed ) c 149 S "^oa ,? j ^ 
for overtime in excess of forty hours in he week excises iheAle^'o^ 
pohtan District Commission police. That is a nonseguitur '''"" 

l^etore the enactment of the statutes giving police so manv d«^« nfl- 

without loss of pay and giving other employees^-eight Td forty W 

^ork weeks, we have seen that the heads of departments had the do we r 

to establish reasonable schedules of working hiurs. lie only effect of 

sched'X ''"'"'"'^ ^""^""^ ^^ '' ™P«^^ ^'-^^^*-- on "a^Tstabhled 

Furthermore, the fact that the Legislature appropriated money for such 

It also appears that at the request of the Metropolitan District Com 

T^Z^'^T'''' "^ ^.^•^•^"^"^^' ^''^ StandardizatiS; n hrDepart^^^^^^ 
o Administration and Finance has since 1945 approved ravrntrn \ 
overtm^e service rendered by the police in your depa tmPnt. ''The^^n 



18 P- ^- 12- 

held that the construction of a statute by an officer thereby charged w^th 
the performance of pubhc duties is strong evidence of its meanmg. bee 
Burrage v. County of Bristol, 210 Mass. 299, 301. 
I therefore answer your question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Veterm^s' Services — Military Settlements — War — Veterans' Benefits. 

Nov. 1, 1950. 
Hon. Henry V. O'Day, Commissioner of Veterans' Services. 

Dear Sir: — You ask my opinion as to whether G. L. (Ter. Ed.) c. 116, 
relating to military settlements, is applicable to those serving m the Korean 
War The answer will depend upon the intention of the General Court as 
gleaned from G. L. (Ter. Ed.) c. 116, § 1, cl. 5, and St. 1950, c. 797. It 
will be helpful to examine the ancestral legislation culminating m the 
present law. . „„ 

The first statutory provision m this connection was bt. 1865, c. Z6U, 
S 1 which was intended to assist those who served m the Civil War Ihis 
statute provided that a settlement would hv acquned if the soldier or 
sailor had been duly enlisted and mustered into the military service ot 
the United States as part of the quota of the city or town in which the 
settlement was claimed, and provided he was an inhabitant of such city 
or town and had resided therein for six months prior thereto, and had 
continued in such service for at least one year. 

In Bridgewater v. Plymouth, 97 Mass. 382, at 390, the court, in inter- 
preting the statute, said : 

"The legislature intended the act to embrace every man who at any 
period served and went to make up the quota . . . Every soldier who 
was eventually credited to any municipality as a part of its quota, rendered 
to it the public service in return for which the privileges of a legal settle- 
ment therein have been conferred by the act under consideration, ihe 
same benefit has been received by the town, and the same rights were 
given by the statute, whatever may have been the date of the enlistment 
and mustering into the army." 

Statute 1866, c. 288, amended the 1865 statute by declaring that it 
should not be construed to require a continuous service of one year. 

Statute 1868, c. 328, elhninated from the 1865 statute the requirement 
of six months' residence in the city or town prior to enlistment and muster- 
ing into the service. , r t x , + ^f 

Statute 1870, c. 392, retained the requirement of enlistment as part ot 
the quota of a city or town and service for at least one year during the 

Civil War. „ , , ^^ j j j 

In 1902 the law was codified in R. L. c. 80, § 1, cl. 10, and provided: 

"A person who was enlisted and mustered into the military or naval 
service of the United States, as a part of the quota of a city ?/ town in 
this commonwealth, under any call of the President of the United States 



p. D. 12. 19 

during the war of the rebellion or who was assigned as a part of the quota 
thereof after having b(^en enlisted and mustered into said service, and 
who served for not less than one year . . .; and any person . . .' who 
was not a part of the quota of any city or town, shall, if he served as a 
part of the quota of the commonwealth, be deemed to have acquired a 
settlement m the place where he actually resided at the time of his en- 
listment. ..." 

Statute 1911, c. 669, n^pealed chapter 80 of the Revised Laws and 
rewi-ote the law relating to the acquirement of legal settlements. It re- 
enacted, however, th(^ same provisions which appeared in the aforesaid 
R. L. c. 80, § 1, cl. 10. 

General Statute 1918, c. 257, § 299, amended St. 1911, c. 669, § 1 
cl. 5, by msertmg after the words "war of the rebellion" the word's "or 
any war between the United States and any foreign power." 

General Statute 1919, c. 333, § 5, added to the aforesaid Drovisions the 
following : 

^ "Any person who was inducted into the military or naval forces of the 
United States under the federal selective service act, or who enlisted in 
said forces in time of war between the United States and any foreign 
powei-, whether as a part of the quota of this commonwealth or not, shall, 
subject to the same proviso, be deemed to have acquired a settlement in 
the place where he actually resided in this commonwealth at the time of 
his induction or enlistment." 

Note that no reference is here made to "serving" as a part of any quota. 

In the consolidation of the General Laws in 1921 the Legislature by 
chapter 116, re-enacted the law as it stood after Gen. St. 1919, c. 333, 
§ 5, but m^the paragraph relating to selective service it added the words 
"or served" so that the pertinent clause read: "or who enlisted in said 
forces . . . whether h(^ served as a part of the quota of the commonwealth 
or not." 

Statute 1922, c. 177, amended said chapter 116 of the General Laws of 
1921 by msertnig the clause "or who enlisted and served in said forces 
durmg the Philippine insurrection" but struck out the requirement of 
one year's service, so as to read as the statute now appears in chapter 
116, section 1, clause 5, of the Tercentenary Edition of the General 
Laws, namely: 

"A person who enlisted and was mustered into the military or naval 
service of the United States, as a part of the quota of a town in the com- 
monwealth under any call of the president of the Unites States dm-ing the 
war of the rebellion or any war between the United States and any foreign 
power or who was assigned as a part of the quota thereof after havii;g 
enlisted and been mustered into said service, . . . shall be deemed thereby 
to have acquired a settlement in such town; and any person . . . who 
was not a part of the quota of any town, shall, if he served as a part of 
the quota of the commonwealth, be deemed to have acquired a settle- 
ment ... in the place where he actually resided at the time of his en- 
listment. Any person who was inducted into the military or naval forces 
of the United States under any federal selective service act, or who enlisted 
111 said forces in time of war between the United States and any foreign 



20 P- D- 12. 

power whether he served as a part of the quota of the commonwealth or 
not or who enUsted and served in said forces during the Phihppme in- 
surrection . . . shall be deemed to have acquired a settlement m the 
place where he actually resided in the commonwealth at the time of his 
induction or enlistment ..." 

The pertinent provisions of St. 1950, c. 797, are as follows: 

" Whereas, The deferred operation of this act would tend to defeat its 
purpose which is to provide immediate financial assistance to certain 
persons 'in the armed forces of the United States and to their dependent 
relatives, therefore it is hereby declared to be an emergency law, neces- 
sary for the immediate preservation of the public convenience. 

"Section 1. Any city or town, acting by its veterans agent, may 
provide a war allowance for the dependent relatives of any person m the 
armed forces of the United States while the United States is engaged m 
hostilities under the flag of the United Nations, or m a state of war arising 
out of and as the result of such hostilities, which hostilities, for the purpose 
of this act, shall be deemed to have begun on June twenty-fifth, nineteen 
hundred and fifty, provided that said person, at the time of his entry 
into said service, or his recall thereto or his continuance therein at the 
expiration of a prior enlistment to the credit of the commonwealth was a 
resident of this commonwealth and had been a resident thereof lor not 

less than one year. ... ^ ^i tt v ^ a+ + 

"Section 2 Any person in the armed forces ot the United btates, 
whose dependents are entitled to a war allowance under section one and 
who is discharged other than dishonorably from said service, shall be 
eligible to receive veterans' benefits under the provisions of chapter one 
hundred and fifteen ot the General Laws, relating to world war service, 
so far as applicable. ..." 

As a general proposition, statutes relating to settlements are prospective 
in operation, but the Legislature has clearly indicated a contrary intention 
in the foregoing enactments and they are therefore retrospective. J\ew- 
huryport v. Worthington, 132 Mass. 510, 511; Boston v. Warwick, 132 
Mass. 519, 520; Dedham v. Newton, 320 Mass. 391 395 r , ,. , 

In the last cited case the court said on page 395, 'The mere fact that 
Hale's enlistment was in time of peace and preceded the declaration ot 
war on April 6, 1917, did not prevent his gaining a settlement m C^umcy ; 
and on page 396, "The settlement contemplated by the statute .^ . . was 
in Ouincy the city where he resided at the tim.e of his enlistment. 

In approaching the question whether service in the Korean war comes 
within the purview of said chapter 116, section 1, clause 5, we must in- 
terpret most liberally all such legislation relating to those brave men and 
women who give their energy, their blood and even their lives to preserve 
our State and Nation. If reasonably possible, the above statute must be 
so construed that immediate veterans' benefits will be gi-anted under 
G L (Ter Ed ) c 115 to the dependents of those serving m Korea. Ihe 
crucial words of the statute are the following: "Any pei-son who was 
inducted into the military or naval forces of the United States under any 
federal selective service act, or who enlisted in said forces m time ot war 
between the United States and any foreign power . . . shall be deenied to 
have acquired a settlement in the place where he actually resided in the 
commonwealth at the time of his induction or enlistment. 



p. D. 12. . 21 

Strictly speaking, the United States is not engaged in any "declared" 
war against North Korea, and our forces are actually serving under the 
United Nations' flag. But whatever banners fly as our troops go into 
battle, we are at war with a foreign power; and it would be splitting hairs 
to say otherwise. 

Furthermore, the language of the quoted provisions of St. 1950, c. 797, 
indicates a desire to remove all doubt as to which municipality shall 
provide the veteran or his dependents with benefits under said chapter 
115. In order that those entitled to benefits shall not be prejudiced by 
delays due to controversies between municipalities as to which shall 
furnish the benefits, the Legislature definitely fixes the place of actual 
residence at the time of enlistment or induction as the municipality obli- 
gated to furnish said benefits. 

I therefore answer your question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Conservation — Appropriations — Constitutional Law. 

Nov. 3, 1950. 
Hon. Matthew T. Coyne, Department of Conservation. 

Gentlemen: — In a recent communication my opinion has been re- 
quested as to the legality of Item 2220-21 in the 1950 Supplementary 
Budget Appropriation Bill. In reply I advise that this attempted appro- 
priation is ineffectual. By St. 1938, c. 392, the Legislature assented to 
Public Act No. 415, 75th Congress and stipulated that no funds accruing 
to the Commonwealth from license fees paid by hunters shall be diverted 
for any other purpose than the administration of the Division of Fisheries 
and Game of the Department of Conservation. This assenting statute 
formed a compact between the United States Government and the Com- 
monwealth of Massachusetts, and pursuant to its terms there is an annual 
renewal of the agreement that said funds shall not be diverted. 

The disposition of the Inland Fisheries and Game Fund is further 
regulated by G. L. (Ter. Ed.) c. 131, § 3A, which specifies the purposes 
for which the fund may be used. 

It is my opinion that this appropriation divertmg ten thousand dollars 
to the use of the Department of Public Works is violative of the impair- 
ment to contract clause of the United States Constitution and therefore 
invalid. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Public Works — Expenditures — Appropriations. 

Nov. 27, 1950. 

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

Dear Sir : — You have requested my opinion as to whether expendi- 
tures by your department under the authority of St. 1950, c. 685, are 



22 P. D. 12. 

subject to the provisions of G. L. (Ter. Ed.) c. 29, § 9B. Your letter 
refers to my opinion to you under date of August 9, 1949, holding that 
the provisions of said section 9B were not applicable to expenditures 
under St. 1949, c. 306, and you point out that the provisions contained 
in the 1950 act are practically the same as those contained in the 1949 
act previously considered. 

A comparison of the two statutes shows that their provisions are sub- 
stantially identical. Each act is entitled "An Act providing for an acceler- 
ated highway program," and each contains an emergency preamble re- 
citing the need for avoiding unnecessary delay in putting the program 
into effect. The amount authorized to be expended is the same in each 
act, namely, one hundred million dollars, and each act contains provisions 
fixing the amounts to be expended by each governmental bodj'' involved, 
as well as the amounts to be expended according to territory and type of 
project. 

Contracts under the 1950 act are required to be entered into prior to 
June 30, 1952, almost two years after the date of the enactment of the 
statute. In each act it is provided that detailed progress reports and a 
final report be filed. 

As stated in my opinion of August 9, 1949, the application of the statu- 
tory provisions for allotments of appropriations to other than ordinary 
appropriations for the State offices is doubtful, and such application is 
particularly questionable as to appropriations for specific construction 
projects. However, as I stated with reference to the 1949 act, it is clear 
from the pattern of St. 1950, c. 685, that it was the intention of the Legis- 
lature in enacting the law to establish a special, self-contained procedure 
for safeguarding and rog"ulating the extraordinary expenditure of fimds 
therein provided, and the application of G. L. (Ter. Ed.) c. 29, § 9B, to 
the expenditure of funds thereunder would be inconsistent not only with 
the legislative intention expressed in the preamble but with the operation 
of the legislative plan contained therein. 

In accord with the well-established principle of statutory construction 
that the provisions of a later special statute will control over inconsistent 
provisions of an earlier general statute {Clancy v. Wallace, 288 Mass. 557, 
564; McKenna v. White, 287 Mass. 495, 499; see Copeland v. Springfield, 
166 Mass. 498, 504, and cases cited), I am of the opinion that the pro- 
visions of G. L. (Ter. Ed.) c. 29, § 9B, are not applicable to the expendi- 
ture of funds imder St. 1950, c. 685. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Metropolitan District Commission — Conduits and Gas Lilies — Permits — 
Eminent Domain — Damages. 

Dec. 7, 1950. 

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

Dear Sir: — You have asked my opinion interpreting the effect of the 
law under the circumstances hereinafter described. 

You state that in pursuance of the plan of the Metropolitan District 



p. I). 12. 23 

Commission to construct the Hyde Park-Milton pifx^ Iii)e (a pipe line from 
Morton and Washington Streets to Adams and Medway Sti-eets) the 
commission made a taking and during the process of construction tele- 
phone conduits, lulison conduits and gas lines were found in the location. 

You wish to know whetlun- the cost of removal and ndocation of said 
conduits and gas lines must be borne by the Commonwealth. 

General Laws (Ter. Ed.) c. 166, § 22, and corresponding pio visions of 
prior and contemporary statutes, grant to municipalities the power to 
issue permits to utilities to lay conduits in the public ways. United Electric 
Light Co. v. Deliso Construction Co., 315 Mass. 313. 

The effect of these permits is to authorize the location of structures 
which would otherwise constitute a nuisance. CommoniceaUh v. Boston, 
97 Mass. 555. Lynch v. Lowell Electric Light Corporation, 263 Mass. 81. 

These permits do not give a utility any title or proprietary interest in 
that part of the way occupied by these structures, and if a miuiicipality, 
acting under the power of eminent domain, changed the grade of the way 
or even discontinued it, the utility would have no claim for damages even 
if it sustained a loss of these structures, ^^■hich could not be removed with- 
out destroying them. United Electric Light Co. v. Deliso Construction Co., 
315 INIass. 313, 316. Boston, Worcester, etc., Railway v. CommoniveaUh, 301 
Mass. 283. Boston Electric Light Co. v. Boston Terminal Co., 184 Mass. 566. 

A good analysis of the right of utilities in such a situation is found in 
Natick (las Light Co. v. Natick, 175 INlass. 246. In that case, by reason 
of the abolition of certain grade crossings in Natick, the petitioner was 
put to expense in altering some of its mains legally existing in the public 
streets. On page? 248 the court said : 

"It becomes necessary to inquire into the nature (jf the loss sustained 
by the company. The pipe was personal property and the title to it did 
not change. . . . The petitioner, as against the land owner, had in itseK 
no easement. ... It is permitted to share in the general use for which the 
public have paid. But whether this right ... be a valuable one . . . 
it must, nevertheless, be regarded as subordinate to the general purpose 
for which the land was originally taken, to wit, public travel, and must 
yield to the necessities of that purpose. 

"The permission to lay down pipes in the public ways, whether or not 
... it be revocable, must be held to have been granted originally upon 
the condition that the pipes, neither at the time of the laying nor there- 
after, shall interfere with the public travel upon the way as then existing 
or as it may thereafter be changed to meet the reasonable exigencies of 
such travel." 

Furthermore, it appears from the Revised Ordinances of 1947 of the 
City of Boston that permits for laying pipes and conduits may be revoked 
at any time by the authority issuing them. See chapter 3, section 21, and 
chapter 27, sections 9, 14 and 20 of these ordinances. 

I therefore answer your question in the negative. > 

Very truly yours, 

Francis E. Kelly, Attorney General. 



24 P. D. 12. 

Agriculture — Appointment — Inspector of Animals — Tenure. 

Dec. 11, 1950. 
Hon. John Chandler, Commissioner of Agriculture. 

Dear Sir : — In a recent communication you requested me to deter- 
mine whether inspectors of animals whose appointments are provided for 
in G. L. (Ter. Ed.) c. 129, as most recently amended by St. 1941, c. 162, 
shall be appointed annually as provided therein. I answer this question 
in the affirmative. 

In reaching this conclusion I have taken into consideration the provisions 
of G. L. (Ter. Ed.) c. 31, § 43, as most recently amended by St. 1949, 
c. 429. This statute provides that "every person holding office or em- 
ployment under permanent appointment" shall have unlimited tenure of 
office or employment. The appointment of an inspector of animals made 
under G. L. (Ter. Ed.) c. 129 is an annual and not a permanent appoint- 
ment and therefore the appointee does not acquire the tenure provided in 
G. L. (Ter. Ed.) c. 31, § 43. 

This opinion in no way qualifies the opinion of the Attorney General re- 
ported in III Op. Atty. Gen. 575, to the effect that the appointee must be 
selected from a civil service list. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Veterans' Services — Duty of Commissioner in Controversies. 

Dec. 11, 1950. 
Hon. Henry V. O'Day, Commissioner of Veterans' Services. 

Dear Sir : — You have asked my opinion interpreting the effect of 
G. L. (Ter. Ed.) c. 115, § 2, under the circum,stances hereinafter described. 
Section 2 provides in part as follows: 

"He [the Commissioner of Veterans' Services] shall decide all con- 
troversies between towns relative to the settlement of applicants for vet- 
erans' benefits, and, subject to the approval of the attorney general, his 
decisions shall be final. He shall further decide all controversies between 
such an applicant and a veterans' agent relative to the validity or amount 
of a claim for such benefits, and upon the complaint . . . that the city or 
town ... is granting such benefits contrary to the provisions of this 
chapter, shall forthwith m.ake an investigation of such complaint, and a 
determination of the amount of such benefits, if any, to be granted; a 
final appeal from such decision or determination may be taken ... to 
the governor and council." 

You wish to know whether your authority to decide controversies be- 
tween an applicant and a veterans' agent as to the amount of veterans' 
benefits is limited to applications of veterans whose settlement is in dis- 
pute. 



p. D. 12. 25 

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. Commonwealth v. Welosky, 276 Mass. 398, 
401, 402; Kneeland v. Emerton, 280 Mass. 371, 376. 

Furthermore, 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 purpose of the statute, and if another interpretation is pos- 
sible which will not have that effect. Frye v. School Committee, 300 Mass. 
537; Cullen v. Mayor of Newton, 308 Mass. 578. 

An intention to accomplish an absui'd result is not to be attributed to 
the Legislature unless clearly required by the language of the statute. 
Petition of Curran, 314 Mass. 91. 

A very narrow interpretation of the second sentence of the above- 
quoted part of section 2 of said chapter 115 would require an affirmative 
answer to your question; nevertheless, it seems inescapable from an ex- 
amination of the whole of the aforesaid section 2 that the Commissioner 
of Veterans' Services is given plenary powers pertaining to veterans' 
benefits. 

Furthermore, if the Commissioner's decision as to the amount of bene- 
fits were limited to cases where a settlement was in dispute, then appeals 
to the Governor and Council would be limited to such situations. This 
clearly was not the intention of the Legislature. Such appeals were in- 
tended to include all controversies between the veterans' agent and appli- 
cants for veterans' benefits. 

Consequently the commissioner is obligated to resolve all such disputes, 
and I must answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Veterans' Services — Veterans' Benefits — Settlement. 

Dec. U, 1950. 
Hon. Henry V. O'Day, Commissioner of Veterans' Services. 

Dear Sir: — You ask my opinion interpreting the effect of G. L. (Ter. 
Ed.) c. 115, as amended, under the circumstances hereinafter described. 

You state that on November 12, 1949, a baby girl died at the Boston 
City Hospital; that the father of the child was a veteran who had been a 
resident of Boston since some time after May 9, 1947, but had not yet 
acquired a settlement in the Commonwealth, nor had he resided in the 
Commonwealth for three years next preceding the application for the 
benefits in question. You also state that said veteran was in needy cir- 
cumstances. 

You wish to know whether the commissioner may grant burial expenses 
for a dependent who while alive would not be entitled to veterans' benefits. 

The pertinent provisions of said chapter 115 are as follows. Section 5 
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 



26 . P. D. 12, 

resides; provided, that no benefits shall be paid to a dependent unless he 
has resided within the commonwealth continuously for three years next 
preceding the date of his application for such fbenefits, nor unless the 
veteran of whom he is a dependent has a settlement in the commonwealth 
or has actually resided in the commonwealth for three years next pre- 
ceding the dat(^ of dependent's application for benefits. ..." 

Section 6 provides, subject to certain conditions: 

"... one half of the amounts of veterans' benefits paid to applicants 
having settlements in the cities or towns making such payments, and all 
of the amounts of veterans' benefits paid to other applicants . . . shall be 
paid by the commonwealth to the several cities and towns on or before 
November tenth in the year after such expenditures." 

Section 7 provides: 

"He [a burial agent] shall, under regulations established by the com- 
missioner, cause properly to be interred the body of any veteran or adult 
dependent who dies without sufficient means to defray funeral expenses, 
and the body of any dependent child of a veteran if such veteran and his 
wife, or his widow, be without sufficient means to defray funeral ex- 
penses. ..." 

Section 8 provides: 

"... One half the amounts so paid [by the burial agent] and allowed 
[by the commissionei] for burial expenses of veterans or dependents having 
settlements in the cities or towns making such payments, and all of the 
amounts so paid and allowed for burial expenses of others, shall be paid 
by the commonwealth to the several cities and towns on or before No- 
vember tenth in the year after the expenditures have been made." 

The above statutory provisions should be read as a whole in order to 
determine the main object sought to be accomplished by their enactment. 
Meunier's Case, 319 Mass. 421; Johnson's Case, 318 Mass. 741. 

It thus appears from an examination of the aforesaid statutory [>rovi- 
sions that a veteran is entitled to benefits (§ 5) so long as he rc^sides in the 
Commonwealth, whether or not he has acquired a settlement, whereas 
the award of veteran.s' benefits to o dependent of a veteran is conditioned 
upon settlement or length of residence ; that the burial agent of a city or 
town (§ 7) shall provide for the burial of a deceased veteran or deceased 
dependent child of a veteran if the family is without sufficient means to 
defray th(i funeral expenses; that whatever veterans' benefits are fur- 
nished by a city or town will be reimbursed by the Commonwealth (§6) 
to the extent of fifty per cent if the applicant has a settlement in said 
city or town, and to the extent of one hundred per cent in the case of 
veterans' benefits paid to others; and as to burial expenses (§ 8) the 
Commonwealth will reimburse cities or towns making such pajmients, to 
the extent of fifty per cent if the deceased veteran or dependent had a 
.settlement in said city or town, and to the extend of one hundred per 
cent in the case of burial expenses of others. 

Consequently, since the father of the deceased child was a veteran, the 
burial agent of Boston was obligated to provide proper interment, and 



p. D. 12. 27 

since the veteran had no settlement in the Commonwealth the latter 
must reimburse^ the city of Boston for the full amount allowed by the 
Commissioner of Veterans' S(;rvices and paid by the city of Boston. 

Very truly yours, 

Francis E. Kellv. Attorney General. 



Public L'tilities — Permit — Contract Carrier — Ashes and Waste. 

Dec. 22, 1950. 
Hon. Thomas A. Flaherty, Chairman, Department of Public Utilities. 

Dear Sir: — You have ask(>d my opinion interpreting the effect of 
G. L. (Tcr. Ed.) c. 159B, § 4, under the circumstances hereinafter de- 
scribed. 

You state that an application has been made to the Division of Com- 
mercial Motor Vehicles of your department for a permit under chapter 
159B "as a contract carrier of property for hire by an individual who in- 
tends to haul ashes, rubbish, garbage and snow under contract with the 
city of Boston"; that the city of Boston is very anxious to let this con- 
tract as soon as possible; and that on October 6, 1948, former Attorney 
General Clarence A. Barnes rendered an opinion to the eff(>ct that the 
transportation of waste material from a cesspool does not require a permit 
from your department because "transporting property" implies the 
transport of property belonging to some person other than the carrier, and 
that in the ordinary case of waste material the owner either abandons 
title to it or transfers it to the carrier. 

You wish to know whether transporting ashes, rubbish, garbage and 
snow under a contract with the city of Boston is distinguishable from 
transporting waste material from a cesspool. 

General Laws (Ter. Ed.) c. 159B, § 1, declares that it is the policy of 
the Commonwealth to regulate transportation of property by motor 
carriers upon its ways to "(1) promote adequate, economical and efficient 
service by motor carriers ... (3) develop and preserve a highway trans- 
portation system properly adapted to the needs of the commerce of the 
commonwealth, and (4) promote safety upon its ways in the interests of 
its citizens." 

Section 4 of the same chapter provides in part: "No person shall en- 
gage in the business of a contract carrier by motor vehicle upon any way 
unless there is in effect with respect to said carrier a permit issued by the 
department, authorizing him to transport property for the concerns speci- 
fied, and within the limits set forth, in such permit." This section 4 also 
declares the policy of the Conmionwealth to be "that the business of con- 
tract carriage is affected with the public interest and that the safety and 
welfare of the public upon the ways within the commonwealth, the preserva- 
tion and maintenance of said ways and the proper regulation of common 
carriers using the same require the regulation of contract carriers to the 
extent provided in this chapter." 

Section 2 of the same chapter defines a contract carrier by motor vehicle 
as "any person, not included in the term 'common carrier by motor 
vehicle' . . . who, under special and individual contracts or agreements 
. . . transports property by motor vehicle for compensation upon ways." 



28 P. D. 12. 

Last year, however, the Legislature by St. 1949, c. 346, § 1, mcluded a 
definition of the word "property" as being "any physical matter whatso- 
ever, regardless of value, over which the right of ownership or control may 
be exercised, including cui-rency, dociunents and papers of all kinds." 
But for the 1949 statutory definition of "property", the aforesaid opinion 
of October 6, 1948, relating to cesspool waste matter, would be just as 
applicable to ashes, rubbish, garbage and snow. The statutory definition 
of property, however, obviously includes the material above described. 
Such material is undoubtedly physical matter over which the right of 
control may be exercised. Ifc is capable of being controlled, either before 
or after it gets into the possession of the carrier. Logically, it makes no 
difference Avhether the carrier acquires title to said material or not. Re- 
gardless of the title or ownership, it is material which may be controlled; 
and if it is being transported for compensation under a contract, section 
4 of chapter 159B is applicable. 

The 1949 statute is plain and unequivocal in its language. Coupled 
with the declared policy of the Commonwealth, as stated in sections 1 
and 4, the statute clearly makes it necessary for the contract carrier in 
question to secure a permit. If chapter 159B, as amended, unduly affects 
the public welfare in certain situations, the remedy must be sought with 
the Legislature. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Civil Service and Registration — License Renewal — Armed Forces. 

Jan. 2, 1951. 
Mr. William H. J. Rowan, Director of Registration. 

Dear Sir: — You have asked my opinion interpreting the effect of 
St. 1943, c. 421, under the circumstances hereinafter described. 

You state that until 1948 all persons in the armed forces who were li- 
censed by your department were permitted to renew their current year's 
license within a period of six m.onths from the date of their discharge from 
the service and were not charged for the years during which they actually 
served. You wish to know whether this same courtesy is to be extended 
to the men and women who are now serving in the armed forces. 

Said St. 1943, c. 421, provides: 

"Any license, permit or certificate of registration issued by any de- 
partment, division, board, commission or officer of the commonwealth that 
expires while the holder thereof is serving in the military or naval service 
of the United States may be renewed within six months after the termina- 
tion by such holder of such service, to the same extent as though the 
application for such renewal were made upon the expiration of such li- 
cense, permit or certificate of registration; provided, . . . that no fee 
shall be charged or collected for the period between such expiration and 
such renewal." 

The words "serving in the military or naval service of the United 
States" do not refer to any particular kind of service or during any par- 



p. D. 12. 29 

ticular conflict. The holder (male or female) of such license, permit or 
certificate is entitled to the right specified by the statute during the time 
of such service, whenever and whatever it may be. 
I therefore answer j'^our question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Education — Children of Veterans — Veterans' Benefits. 

Jan. 25, 1951. 
Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — You have requested my opinion on certain phases of a 
recent enactment by the Legislature as it may affect the administration 
of your department. 

Statute 1950, c. 758, approved August 10, 1950, amends G. L. (Ter. 
Ed.) c. 69 by striking out st^ction 7B as amended and inserting in place 
thereof a new section reading as follows: 

"Section 7B. The commonwealth, acting through the department, 
may contribute toward the expenses of the higher education of any child, 
resident in the commonwealth, between the ages of sixteen and twenty-two, 
whose father or mother entered the armed forces of the United States in 
time of war, or between September sixteenth, nineteen hundred and forty 
and Decem,ber eighth, nineteen hundred and forty-one and whose service 
was credited to Massachusetts, and who was killed in action or died from 
other cause as a result of such service. 

"Any child who is eligible under this section shall, upon becoming a 
student in any state or county educational institution or other educational 
institution approved in writing by the commissioner of education, be en- 
titled to reimbursement by the commonwealth, in an amount not to ex- 
ceed seven hundred and fifty dollars in any year, for expenses for tuition, 
board and room rent, transportation, and books and supplies necessary or 
incidental to his pursuit of study at such educational institution. Such 
reimbursem,cnt shall be made to such child, or his guardian, if any, on the 
presentation of vouchers therefor approved by the said commissioner. 
Such payments shall continue for the benefit of a child only during such 
time as he remains a student in good standing in the institution in which 
he is enrolled, and in no event shall any student receive the benefits pro- 
vided by this section for m.ore than four years. 

"The said commissioner shall determine the eligibility of children for 
the benefits provided for in this section." 

The problems you have indicated in your letter center around the effect 
of the provisions of the act of 1950 which limit eligibility for contribution 
toward expenses to those incurred by a child "... between the ages of 
sixteen and twenty-two, whose father or mother entered the armed forces 
of the United States . . . and whose service was credited to Massachu- 
setts ..." 

Your questions arise principally from the fact that under the prior law, 
for which the act of 1950 is substituted as of its effective date, November 8, 



30 P. D. 12. 

1950, it was provided that contribution might be made toward expenses 
incurred by a child "not under sixteen years of age" whose deceased vet- 
eran parent had "entered the armed forces of the United States" within a 
certain period, without reference to whether his service was credited to 
Massachusetts. Thus both the age factor and the requirement that the 
war service of the deceased veteran parent be credited to Massachusetts 
represent new statutory provisions. 

You have cited instances which raise certain problems. These problems 
may be fairly posed by the following questions, paraphrasing your letter: 

1. What is the age requirement for eligibility for contribution under the act 
of 1950 toward expenses incurred by a child otherwise qualified set up by the 
phrase therein "between the ages of sixteen and twenty-two"? 

The word "between," as used in the act, obviously means a period of 
age between two extremes or termini, a minimum and a maximum. It is, 
however, unfortunately susceptible of three entirely different and opposed 
constructions. Thus, does the phrase mean to compensate expenses in- 
curred by a child — 

(a) Who has reached the age of seventeen and has not yefc reached 
twenty-two, or 

(6) Who has reached the age of sixteen and has not yet reached twenty- 
two, or 

(c) Who has reached the age of sixteen and has not yet reached twenty- 
three? 

The question is an important one, for on the answer to it depends whether 
a child is eligible for the benefits of the act within the limits of a span of 

(a) Five years, 

(6) Six years, or 

(c) Seven years. 

Construction of the language used by the Legislature is not as easy as 
may appear at first sight. 

Examination of the cases relevant to the point leads to the conclusion 
that the authorities are of little or no assistance. All the cases found are 
either distinguishable or contradicted by others adopting an opposing in- 
terpretation. There is no advantage to be achieved by a citation and dis- 
cussion of the authorities. 

General Laws (Ter. Ed.) c. 4, § 6, provides as follows: 

"In construing statutes the following rules shall be observed, unless 
their observance would involve a construction inconsistent with the mani- 
fest intent of the law-making body or repugnant to the context of the same 
statute. 

"Third, Words and phrases shall be construed according to the common 
and approved usage of the language ; but technical words and phrases and 
such others as may have acquired a peculiar and appropriate meaning in 
law shall be construed and understood according to such meaning." 

The words here in question are not technical, and have not "acquired 
a peculiar and appropriate meaning in law" in so far as n^search has dis- 
closed. Therefore they are to be construed according to the "common 
and approved usage of the language." 

The word "between" is commonly used in a number of different senses, 
some of which, of course, have no bearing on this question. It is commonly 



p. D. 12. 31 

used, however, as here, to indicate the space, distance, or time between 
two termini. There is a general nde of construction to the effc-ct that 
when so used it excludes, and does not include, the termini. S(H' Atkins 
V. Boylston Fire and Marine Insurance Company, 46 Mass. (5. Mete.) 439; 
Kendall v. Kingsley, 120 Mass. 94. 

The general rule, however, presuppt^ses definite termini. Where the 
termini are exactly and clearly stated, so that there is no doubt as to what 
is intended, no difficulty arises, and the rule amounts to no more than a 
statement of an obvious result. This is particularly clear when the termini, 
in so many words, are stated as points or divisions of time, w^ithout length. 

Thus, for example, a limitation of time to "between noon and midnight" 
includes a span of twelve hours. Similarly, a limitation of a period out of 
the life of a person to "between the moment he becomes sixteen and the 
moment he becomes twenty-three" includes a span of seven years. The 
exclusion of the termini, which are mere points or divisions of time, gives 
no difficulty. 

The language used by the Legislature in the act of 1950, however, does 
not indicate the points or divisions of time which are the termini of the 
period of eligibility clearly and without ambiguity. 

The age of sixteen continues for a full year, as does the age of twenty- 
two. Nevertheless, the termini must be fixed as mere points of time. At 
any given moment in the life of a child otherwise qualified, it must be 
possible to state with definiteness that he is either qualified so far as age is 
concerned, or is too young or too old to qualify. 

What, then, are the points of time established as termini by the Legis- 
latm-e? Returning to the alternatives previously given as possible mean- 
ings of the language of the act of 1950, we find that we must accept as the 
minimum and maximum age termini which are the limits of eligibility — 

(a) The moment the child reaches seventeen as the minimum, and the 
last moment he is twenty-one as the maximum, or 

(6) The moment the child reaches sixteen as the minimum, and the last 
moment he is twenty-one as the maximum, or 

(c) The moment the child reaches sixteen as the minimum and the last 
moment he is twenty-two as the maximmn. 

On these alternative constructions, the following comments appear to 
be warranted: 

On alternative (a): 

It does not appear to be reasonably consistent with the "common and 
approved usage of the language" to use the words "between the ages of 
sixteen and twenty-two" to indicate persons who are neither sixteen nor 
twenty-two. This construction would mean that the Legislature had, 
without any apparent reason therefor, used, to describe the termini, words 
which describe two distinct one-year periods in the life of a person, and 
then used those two periods, each covering a whole year, by exclusion, to 
fix the moments of time when eligibility commences and terminates. 

In other words, by this construction, all persons while sixteen years of 
age and twenty-two years of age are excluded from eligibility. Had the 
Legislature intended this construction, it would have so indicated by 
employing language to the effect that eligibility was to be restricted to 
persons who were "at least seventeen years of age and not yet twenty- 
two." That the language actually used by the I^egislature is the equivalent 
of the above-quoted language I cannot accept. 



32 P. D. 12. 

On alternative (b): 

For similar reasons it does not appear to be proper to construe the 
language as excluding all persons who are twenty-two years of age and 
not those sixteen. A proper construction would give the result that all 
persons aged sixteen and all persons aged twenty-two were alike either 
eligible or ineligible under the act. There appears to be no sufficient reason 
for holding that the language which refers to the minimum and maximum 
termini without distinction means to include as eligible persons who are 
of the one age and to exclude persons who are of the other age. There- 
fore, if the minimum is set at those who have attained the first moment of 
their sixteenth year, it would appear to be reasonable to construe the 
maximum as including those who have not yet passed the last moment of 
their twenty-second year. See Atkins v. Boylston Fire and Marine Insur- 
ance Company, 46 Mass. (5 Mete.) 439, 440, 441. 

Therefore, it appears that the alternative construction (6) above set 
forth is also unacceptable. 

On alternative (c): 

This, by a process of elimination, appears to be the proper alternative 
construction. It avoids all the criticism that may fairly be levelled at 
the other alternative constructions. 

Thus, it includes, and does not exclude from eligibility, all persons in 
the two one-year periods set as the termini of age eligibility. It treats 
persons in both age groups alike, as did the legislative language. 

Further, on the affirmative side, it appears clear that according to "the 
common and approved usage of the language" a person is between the 
ages of sixteen and twenty-two while he is already sixteen (having reached 
the minimum set thereby) and not yet twenty-three (having not yet passed 
the maximum set thereby). 

This appears clear beyond question on the minimum side. That it 
is true also on the maximum side appears clear from the fact that the 
Legislature does not distinguish between persons who have just become 
twenty-two and those who are near their twenty-third birthday, but still 
twenty-two. A person is "twenty-two years of age" for a whole year, 
not for a single instant, according to com^mon use of the English language. 

It is, of course, not overlooked that a person might well be said to be 
"over twenty-two years of age" when he was one day or indeed one 
instant past that precise point of time in which he became twenty-two years 
of age. The Legislature, however, stated the measure of eligibility in 
terms of periods of a whole year. This is also the common usage of lan- 
guage; i.e., unless further breakdown is asked for, a person states his age 
in terms of the whole years completed. There is no reason for this con- 
struction, breaking down the periods to lesser terms, to be gratuitously 
inserted into its meaning. 

Therefore, on final analysis, the first question posed, as to the meaning 
of the phrase "between the ages of sixteen and twenty-two," as used by 
the Legislature in defining ehgibility under the act of 1950, is answered as 
follows : 

Children of deceased veterans otherwise eligible under the act of 1950 
are qualified as to age to receive benefits toward expenses incurred from 
the moment they become sixteen years of age until the moment they cease 
to be twenty-two years of age. 



p. D. 12. 33 

2. At what moment do persons become sixteen years of age and at what mo- 
ment do they cease to he twenty-two years of age? 

Under the W{>ll-known and established common-law method of compu- 
tation, a jx^rson achieves a specified age {e.g., sixteen) at the earliest mo- 
ment after midnight of the day before, and not the day of, the particular 
birth anniversary. Under the same rule, a person ceases to be twenty-two, 
and becomes twenty-three, at the first moment of the day before his 
twenty-third birthday. 

There is nothing to indicate that the Legislature here intended a mean- 
ing other than that ascribed to — specification of age by common-law 
usage, which has "acquired a peculiar meaning in law," and therefore such 
terms "shall be construed and understood according to such meaning." 
(G. L. [Ter. Ed.] c. 4, § 6, Third, suvra.) In re Shurey, 1 C:h. 263. See 
Bardwell v. Furrington, 107 Mass. 419. 

3. Is a child who is currently eligible under the provisions of the presently 
effective law cut off from further benefit under the legislation as of the effective 
date of the act of 1950, namely, November 8, 1950, for expenses incurred on 
and after that date, though he has not completed a course of study in an ap- 
proved institution in which he is then enrolled and a student in good standing, 
and has not at that time received the benefits provided by the legislation for four 
years, if, on said effective date, November 8, 1950, though he is otherwise 
eligible — ■ 

(a) He has already become twenty-three years of age, or 

(b) His deceased war veteran parent upon whom his eligibility has rested 
up to that time was not one "whose war service was credited to Massachusetts^^? 

Until November 8, 1950, eligibility for benefit was governed by the pro- 
visions of G. L. (Ter. Ed.) c. 69, § 7B, as last amended by St. 1948, c. 381. 
Under this legislation, a child otherwise eligible may receive contribution 
toward certain expenses incurred by him prior to November 8, 1950, while 
he is "not under sixteen years of age," if his deceased veteran parent 
"entered the armed forces of the United States" within a certain period, 
without reference to whether his war service was credited to Massachu- 
setts. That legislation constitutes proper authorization for expenditure of 
funds of the Commonwealth to eligible persons. 

However, as of November 8, 1950, chapter 758 of the Acts of 1950 
amended chapter 69 of the General Laws by "striking out" section 7B, 
as amended, and "inserting in place thereof" the new section 7B, the 
provisions of which have been heretofore set forth. 

From that date on, the new section 7B is the only legislative authority 
for disbursement of public funds, and such disbursement must be in ac- 
cord with the provisions thereof. 

Therefore, questions 2 (a) and 2 (6) as above propounded must be an- 
swered in the affirmative. 

However, it may not be amiss to point out that if a person currently 
eligible but who becomes ineligible on November 8, 1950, has incurred a 
current necessary expense prior to November 8, 1950, he may be reimbursed 
therefor (up to the amount of five hundred dollars in accordance with the 
present form of the statute) even though the period covered thereby ex- 
tends beyond said date. For example, if tuition for the first semester is 
not divisible, and was due and payable from such a person on a date prior 
to November 8, 1950, and payment thereof was necessary to enable the 
student otherwise currently qualified to attend the institution up to 



34 P. D. 12. 

November 8, 1950, he may be reimbursed therefor even though in fact the 
period for which the tuition is paid extends beyond November 8, 1950. 

A hke ruling would be proper on the similar facts presented by the case 
of the person who becomes twenty-three years of age after the effective 
date of the act of 1950. As of the date on which he becomes twenty-three 
years of age, though his eligibility for contribution toward his expenses 
incurred thereafter automatically ceases, this will not prevent reimburse- 
ment for expenses incurred before that date as illustrated above, even 
though the benefit procured thereby is an indivisible one which extends 
beyond that date. 

Very truly yours, 

Francis E. Kellv, Attorney General. 



Public Health — Disability — Retirement — Medical Panel. 

Jan. 25, 1951. 
Vlado a. GETTiN(i, M.D., Commissioner of Public Health. 

Dear Sir: — You have recently asked me for an opinion as to whether 
St. 1950, c. 551, affects the obligation imposed upon your depailment to 
appoint a member of a medical panel or board under G. L. (Ter. Ed.) c. 32, 
§§ 6, 7 and 89, as amended. 

Said chapter 32, section 6, provides in part that certain public em- 
ployees may be retir(^d because of total and permanent incapacity upon 
making application therefor to the retirement board; that satisfactory 
proof of such disability must be presented to the board together with a 
certification by a majority of the physicians on the medical panel (here- 
inafter described) that such applicant is incapacitated and that such in- 
capacity is likely to be permanent; that in cases involving a retirement 
under section 7 (accidental disability retirement) said panel shall further 
state whether the disability is the proximate result of the accident or hazard 
undergone on account of which retirement is claimed under said section; 
and that the medical pane) whose duty it is to examine said applicants shall 
consist of thre'e physicians one of whom shall be appointed by the Commis- 
sioner of Public Health . 

Section 7 provides in part that certain public employees who have be- 
come totally and permanently disabled by reason of a personal injury 
sustained as a result of, and while in the performance of, their duties may 
make application for retirement for accidental disability; and that satis- 
factory proof thereof shall be furnished the retirement board together with 
a certification of such incapacity by a majority of the medical panel. 

Section 89 provides in part that if certain public employees die from 
injuries received or die as the proximate result of undergoing a hazard 
peculiar to their emplojonent, and while in the performance of their duty, 
and a majority of the members of a medical board of three physicians (one 
of whom is appointed by the Commissioner of Public Health) certify that 
the death was the proximate result of said injuries or hazard, then certain 
annuities shall be paid the dependents of said deceased; and that said 
medical board shall be appointed within thirty days after the application 
for annuities is filed. 



p. D. 12. 35 

It is provided by St. 1950, c. 551, that, notwithstanding the provisions 
of any general or special law to the contrary, any impairment of health 
caused by hypertension or heart disease resulting in total or partial dis- 
ability to a uniformed mc^mber of a paid fire department shall be pre- 
sumed to have been suffered in line of duty unless the contrary be shown 
by competent evidence. 

If reasonably practi(;able a statute is to be (explained in conjunction with 
other statutes to the end that there may be an harmonious and consistent 
body of law. Kelley v. Jordan Marsh Co., 278 Mass. 101, 111. Assessors 
of Boston V. Lamson, 316 Mass. 166, 171. Furthermore, statutes alleged 
to be inconsistent with each other, in whole or in part, must be so con- 
strued as to give reasonable effect to both, unless there be some positive 
repugnancy between them. Brooks v. Fitchburg Railway, 200 Mass. 8, 17. 

We have seen that said chapter 32, section 6, requires the medical panel 
to determine whc^ther th(^ applicant for rc^tirement is incapacitated and 
whether such incapacity is likely to be permanent; that section 7 requires 
said medical panel to determine whether any claimed disability resulting 
from accident or hazard of employment is the proximate result of the appli- 
cant's employment; and that section 89 requires a different medical 
board to determine whether certain public employees died in the per- 
formance of duty. 

The presumption created by St. 1950, c. 551, does not eliminate the 
need of the medical panel under sections 6 and 7 or the medical board under 
section 89. Section 6 relates only to ordinary disability that is not service 
connected, so St. 1950, c. 551, would have no relation to it at all. Said act, 
however, could apply to a disability resulting under section 7. Neverthe- 
less, the medical panel must still determine whether the applicant was 
permanently incapacitated. Statute 1950, c. 551, merely creates a pre- 
sumption of service-connected incapacity if it resulted from hypertension 
or heart disease. 

Furthermore, the latter act deals only with firemen, and the medical 
panel deals with many other classes of employees; and the panel would 
also have to determine first whether the disability resulted from hyper- 
tension or heart disease; and the presumption may be rebutted by com- 
petent evidence, which said panel would be obliged to hear and consider. 

Whatever has been said with respect to the effect on a medical panel 
operating under section 7 is just as applicable to the medical board es- 
tablished under section 89. 

I therefore answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Public Welfare — Old Age Assistance — Settlement. 

Jan. 25, 1951. 

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

Dear Sir: — You have asked my opinion interpreting the effect of 
G. L. (Ter. Ed.) c. 116, § 2, as amended, and G. L. (Ter. Ed.) c. 118A, § 1, 
under the circumstances hereinafter described. 



36 P. D, 12. 

You state that "A," a recipient of old age assistance, had a legal settle- 
ment in Chelsea on November 1, 1944; that on said date she entered the 
Holy Ghost Hospital in Cambridge; that she has been a patient there 
until the present time; and that this hospital was incorporated in 1893 
as a hospital for incurables. 

You wish to know : 

1. Does "A" have a settlement in this Conmion wealth? 

2. If she does, is her settlement in Chelsea or Cambridge? 

Chapter 116, section 2, provides in part: "No person residing in an in- 
corporated charitable institution the personal property of which is exempt 
from taxation, . . . shall gain or lose a settlement nor be in the process 
of gaining or losing a settlement while residing therein." 

Said chapter 118A, section 1, relates to old age assistance and provides 
in part: 

"... Such assistance shall, wherever practicable, be given to the aged 
person in his own home or in lodgings or in a boarding home, wliich for 
the purposes hereof shall include any institution providing shelter, care 
and treatment for aged persons which is not supported in whole or in part 
by public funds; provided, that no inmate of such a boarding home or in- 
stitution shall be eligible for assistance under tliis chapter while being 
cared for under a contract . . . ; and provided, further, that for the pur- 
poses of this chapter any person who, while such an inmate, has lost his 
settlement or who shall lose his settlement at the time of admission to such 
home or institution shall be deemed to have no settlement in the common- 
wealth. ..." 

Other pertinent statutory provisions are sections 1 and 5 of chapter 116 
and section 8 of chapter 118A. Section 1 provides in part that one who 
resides in a town for five consecutive years shall acquire a settlement 
therein. Section 5 provides in part that the failure for five consecutive 
years to reside in the town where one has a settlement shall defeat a settle- 
ment acquired under section 1. Section 8 provides that a town rendering 
such assistance shall be reimbursed by the Commonwealth to the extent of 
the Federal contribution allotted therefor plus two-thirds of the remainder 
of such disbursement if the recipient had a settlement in the Common- 
wealth, and for all of such remainder if the recipient had no settlement 
in the Commonwealth. 

Consequently, if "A" had a settlement in either Chelsea or Cambridge, 
the town of settlement would bear one-tliird expense. If she had no 
settlement in the Commonwealth, the latter would be obliged to reimburse 
the town rendering assistance to the extent of all in excess of the Federal 
contribution. 

In determining settlement we must, if reasonably practicable, explain 
the aforesaid statutory provisions in conjunction with one another to the 
end that there may be an harmonious and consistent body of law. Kelley 
V. Jordari Marsh Co. 278 Mass. 101, 111. Assessors of Boston v. Lamson, 
316 Mass. 166, 171. 

Furthermore, 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. 
Fitchhurg Railway, 200 Mass. 8, 17. 

"A" presumably acquired a settlement in Chelsea under section 1 of 



p. D. 12. 37 

chapter 116, or derivatively through her husband. If, therefore, when she 
entered the hospital in Cambridge she intended to abandon Chelsea as her 
home, she would normally be in the process of losing her Chelsea settlement 
and gaining a settlement in Cambridge under the provisions of section 5 
of chapter 116. (The word ''reside" in this section means "have his 
domicil," Lakeville v. Cambridge, 305 Mass. 256.) 

Assuming the Holy Ghost Hospital is an incorporated charitable insti- 
tution the personal property of which is exempt from taxation, section 2 of 
chapter 116 would arre.st the process of a change in settlement. Chelsea 
would therefore still be her settlement during her residence in that hospital. 

Chapter 118 A, section 1, does not change the result. That statute 
merel}' declares that if assistance is rendered to one in an institution not 
supported in whole or in part by public funds, and if said recipient has, 
while such an inmate, lost his settlement, then the recipient shall be 
deemed to have no settlement in the Commonwealth. Since we have 
seen that "A" did not lose her settlement while she was an inmate of the 
Holy Ghost Hospital, chapter 118A, section 1, has no application. 

I therefore answer your first question in the affirmative and your second 
question as follows : Her settlement is in Chelsea. 

Very truly yours, 

Francis E. Kellv, Attorney General. 



Public Works — Budget — Credits. 

Feb. 9, 1951. 
Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir : — In a recent communication you requested my opinion as 
to whether monies contributed by the town of Scituate and the county of 
Plymouth can properly be credited to budget item 2202-09 of St. 1950, 
c. 825. I answer this question in the affirmative. 

In determining this proposition the intent of the Legislature is the con- 
trolling principle. In G. L. (Ter. Ed.) c. 91, § 11, it is pro\'ided that in 
selecting the places to do work for the improvement, development, main- 
tena-nce and protection of rivers, harbors, tidewaters and foreshores, the 
Department of Public Works shall consider, among other things, the local 
interest therein as manifested by municipal or other contributions therefor. 
It is a general principle of statutory construction that all the legislation 
germane to a particular subject shall be considered together and, if pos- 
sible, given an harmonious construction. 

It is therefore my opinion that although under the budget item in 
question contributions may not be required by the department, never- 
theless, if the same are voluntaril}^ made, they may be applied and credited 
to the budget item mentioned above. 

Very trulj' yours, 

Francis E. Kellv, Attorney General. 



38 P. D. 12. 

Public Works — Contract — Notice. 

Feb. 19, 1951. 
Hon. William F. Callahan, Commissioner of Public Works. 

Dear Sir : — In a recent communication you requested my opinion as 
to whether the procedure adopted by the Department of Public Worlcs in 
awarding a contract to Raymond E. Cavanaugh Foundation Company 
under budget item 2202-09 of St. 1950, c. 825, was in accordance with the 
provisions of G. L. (Ter. Ed.) c. 29, § 8A, as most recently amended. 

I answer your question in the affirmative. 

The object of all statutory construction is to ascertain the true intent 
of the Legislature from the words used. 

General Laws (Ter. Ed.) c. 29, § 8A, provides that before a contract 
for one thousand dollars or over is awarded, a notice shall be posted near 
the premises of the department for at least one week, and that when the 
amount involved is five thousand dollars or more, there shall be an addi- 
tional notice printed in such newspapers as the Commission on Adminis- 
tration and Finance may approve. There is a further provision that in 
case of public emergency, publication may be dispensed with, upon the 
written approval of the Commission on Administration and Finance. 

The word "publication" in this connection, in my opinion, covers the 
notice to be posted and the newspaper notices and, therefore, when the 
Legislature provided that this publication may be dispensed with in 
case of emergency, the word "publication" used in said connection is 
comprehensive and includes both forms of publication. 

My opinion in this respect is confirmed by the fact that when G. L. 
(Ter. Ed.) c. 29, § 8A, was originally inserted by St. 1939, c. 427, it pro- 
vided that in emergency cases the newspaper publication might be omitted. 
This was amended by St. 1941, c. 547, by striking out the word "news- 
paper" and leaving only the word "publication." In my opinion the 
word "publication" in the statute as it now reads, in that portion thereof 
providing that publication may be omitted in emergency situations, 
means that both the posting of the notice and the newspaper publication 
may be dispensed with upon the conditions stated. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Education — School Lunches — Constitutional Lair. 

Mah. 26, 1951. 
Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — You have requested my opinion as to whether the Forty- 
sixth Article of Amendment of the Constitution of Massachusetts pro- 
hibits the Board of lOducation of the Commonwealth from entering into 
an agreement with the Secretary of Agriculture of the United States gov- 
erning the operations of the National School Lunch Program in Massa- 
chusetts. 



p. D. 12. 39 

You have asked two specific questions which are phrased as follows: 

1. "Does the Board of Education have the authorit}' to agree to sec- 
tion 5 of tile proposed Federal-State Aj^reeiuent for the benefit of children 
attendinji; non-profit private schools as well as public schools in the Com- 
monwealth? 

2. "Would it be permissible for the Commonwealth to expend monies 
appropriated or authorized to be appropriated by the Commonwealth in 
providing lunches for children attending non-profit private schools as well 
as public schools in accordance \nth the proposed Federal-State Agree- 
ment, governing the operation of a school lunch program in Massachusetts 
under the provisions of the National School Lunch Act?" 

In answer to 3'our first question, it may be pointed out that section 5 of 
the proposed agreement follows the provisions of section 7 of the National 
School Lunch Act relating to the apportionment and payment of funds to 
the various States. 

The authority of tlie Board of Education to represent the Common- 
wealth in carrving out the provisions of the act was delegated by Lhe 
Legislature by St. 1948, c. 548, § 1, which reads as follows: 

"The boartl of education is hereby designated as the 'State Educational 
Agency' to represent the commonwealth in dealing with the secretary of 
agriculture of the United States in carrying out the provisions of the 
National School Lunch Act as enacted into law on June fourth, nineteen 
hundred and forty-six." 

The National School Lunch Act clearly contemplates that the State 
educational agencies designated in the several States shall in general enter 
into such agreements not only for the benefit of children attending public 
schools, but also for the benefit of children attending non-profit private 
schools within the States as well. 

The question has previousl}' been raised, however, whether the educa- 
tional agency so designated in the Commonwealth of Massachusetts could 
in conformit}- with Amendment XL VI of the Constitution of Massachu- 
setts disburse Federal funds apportioned to the Commonwealth under the 
National School Lunch Act to non-profit private schools as well as public 
schools within the Commonwealth. 

Ti'js question was answered in the affirmative in Attorney General's 
Report, 1947, p. 17. See also Attorney General's Report, 1943-1944, p. 74. 

It would appear that no novel constitutional issue is raised in question 
number 1. AI}^ answer to that question is in the affirmative. 

In answer to \^our second question, I submit the following. 

The Forty-sixth Article of Amendment of the Constitution of Massa- 
chusetts, section 2, reads as follows: 

"All moneys raised by taxation in the towns and cities for the support 
of public schools, and all moneys which maj- be appropriated by the com- 
monwealth for the support of common schools shall be applied to, and ex- 
pended in, no other schools than those wLich arc conducted according to 
law, under the order and superintendence of the authorities of the town or 
city in which the money is expended; and no grant, appropriation or use 
of public money or property or loan of public credit shall be made or au- 



40 P. D. 12. 

thorized by the commonwealth or any pohtical division thereof for the 
purpose of founding, maintaining or aiding any school or institution of 
learning, whether under public control or otherwise, wherein any denomina- 
tional doctrine is inculcated, or any other school, or any college, infirmary, 
hospital, institution, or educational, charitable or religious undertaking, 
which is not publicly owned and under the exclusive control, order and 
superintendence of pubhc officers or public agents authorized by the com- 
monwealth or federal authority or both, except thjit appropriations may 
be made for the maintenance and support of the Soldiers' Home in xMassa- 
chusetts and for free public libraries in any city or town, and to carry out 
legal obligations, if any, already entered into; and no such grant, appro- 
priation or use of public money or property or loan of public credit shall 
be made or authorized for the purpose of founding, maintaining or aiding 
any church, rehgious denomination or society." 

An analagous question arose heretofore in 1936 in M assachu.se tts under 
two proposed acts entitled, respectively, "An Act providing that pupils in 
parochial schools shall be entitled to transportation to and from said schools 
in the same manner as pupils in public schools," and ''An Act pro\'iding 
for the transportation of parochial and private school pupils to and from 
school." In an opinion given by the Attorney General at that time it was 
said : 

"The intended benefit sought by the proposed legislation, upon which 
you seek my opinion, is a benefit intended for children attending parochial 
and other private schools, as distinguished from a benefit intended for the 
schools themselves . . . The end sought by the legislation has no rela- 
tion whatever to the founding, maintaining or supporting of private 
schools ... 

"I am therefore of opinion that there is no constitutional objection to 
either ..." (Attorney General's Report, 1936, p. 40.) 

With this opinion I agree. 

Similar reasoning decided the almost identical problem when it was pre- 
sented in Ever son v. Board of Education, 330 U. S. 1, decided February 10, 
1947. That case dealt with a situation where a New Jersey statute author- 
ized its local school districts to make rules and contracts for the transporta- 
tion of children to and from schools by bus. The town acted pursuant to 
this statute, reimbursing certain parents for bus transportation of their 
children to parochial schools. It was contended that this violated both 
the State and Federal Constitutions. The Nev/ Jersey Court of Errors 
and Appeals held that the statute violated neither the State nor Federal 
Constitution. On further appeal the United States Supreme Court, affiirm- 
ing, said of the practice of furnishing transportation to children attending 
religious schools, at page 17: 

"Moreover, state-paid policemen, detailed to protect children going to 
and from church schools from the very real hazards of traffic, would serve 
much the same purpose and accomplish nuich the same result as state pro- 
visions intended to guarantee free transportation of a kind which the 
state deems to be best for the school children's welfare. And parents might 
refuse to risk their children to the serious danger of traffic accidents going 
to and from parochial schools, the approaches to which were not protected 
by policemen. Similarly, parents might be reluctant to permit their 



p. D. 12. 41 

children to attend schools which the state had cut off from such general 
jj;overnment services as ordinary police and fire protection, connections 
for sewage disposal, public highways and sidewalks. Of course, cutting 
off church schools from these services, so separate and so indisputably 
marked off from the religious function, would make it far more difficult for 
the schools to operate. But such is obviously not the purpose of the 
First Amendment. That Amendment requires the state to be a neutral in 
its relations wth groups of religious believers and non-believers; it does 
not require the state to be their adversary. State power is no more to be 
used so as to handicap religious than it is to favor them." 

And further, the court said at page 18: 

"The State contributes no money to the schools. It does not support 
them.. Its legislation, as applied, does no more than provide a general 
program to help parents get their children, regardless of their religion, 
safely and expeditiously to and from accredited schools." 

A similar matter arose in Louisiana where the issue was whether an act 
of tlie State of Louisiana which authorized the State to purchase books 
for school children, including private school students as well as those 
attending the public schools, was constitutional. In upholding the act 
the Louisiana court said: 

"The appropriations were made for the specific purpose of purchasing 
school books for the use of the school cliildren of the state, free of cost to 
them. It was for their benefit and the resulting benefit to the state that 
the appropriations were made. True, these children attend some school, 
public or private, the latter, sectarian or non-sectarian, and that the books 
are to be furnished them for their use, free of cost, whichever they attend. 
The schools, however, are not the beneficiaries of these appropriations. 
They obtain nothing from them, nor are thej^ relieved of a single obligation, 
because of them. The school children and the state alone are the bene- 
ficiaries." 

These words of the Louisiana court were set forth verbatim in the 
opinion of the United States Supreme Court in Cochran v. Board of Edu- 
cation, 281 U. S. 370, which affirmed the Louisiana opinion that the pur- 
chase of school books for private school children out of State funds was 
not unconstitutional. 

The cases above cited constitute a class of cases generally recognized 
today as matters incidental to the private school education of children, 
with reference to which the State may exercise the appropriation power 
without violation of any constitutional mandate. Appropriations to in- 
sure the safety of school children in journeying to and from private as well 
as public schools are held to fall within the domain of the public safety; 
appropriations for the furnishing of adequate school books to school 
children in private schools as well as pubUc schools are recognized as part 
and parcel of the public program of education. Inescapably it follows that 
the National School Lunch Program, embracing private as well as public 
school children, is a vital part of the nation's public health program. 
Private school children, equally with public school children, are entitled to 
share in the benefits of such programs designed to advance the public wel- 
fare. 



42 ]\ D. 12. 

The benefit is a benefit obtained by the children a.s distinguished from a 
benefit to the schools. The schools do not recei\^e any aid or support. The 
fact that the money is paid to the school as reimbursement, aft^^r the 
school submits its vouchers and necessary papers for its expenditures, is 
of no consequence. The vital point is that the school is only a conduit of 
funds benefiting the pupil. Mere reimbursement of the school for funds 
expended in furnisliing lunches to its pupils is not aid to the school itself 
as distinguished from the pupils. The school treasury is not benefited or 
increased in any way, nor is this in anj^ manner support or maintenance of 
private educational institutions out of public moneys as prohibited by 
Mass. Const. Amend. LXVI. 

I therefore answer your second question in the affirmative. 

Ver}' truly yours, 

Francis E. Kellv, Attorney General. 



Powers of Governor — Civil Defense — Pooling money of Commonwealth 
with United States for Defense. 

Apr. 2, 1951. 
His Excellency' Pal'L A. Dever, Governor of the Connnonwealth. 

Sir: — You have asked me for an opinion interpreting the effect of the 
law under the circumstances hereinafter described. 

You state that consideration of priorities, scarcity of materials, problems 
of uniform specifications, knowledge of sources of supply, etc., may re- 
quire that the purchase of defense equipment and supplies be pooled for 
the States and effected by the Federal Government. 

The Federal Civil Defense Administration wishes to know : 

1. Can the Commonwealth pay into the United States treasury, in 
trust, advance sums to be applied in payment of the Conmionwealth's 
share of defense equipment and supplies? 

2. Can the Commonwealth reimburse the Federal Government for the 
Commonwealth's share in any instance where the initial outlaj' is wholly 
paid from the United States treasurj-^? 

The statutory pro\asions pertinent to the question are as follows : 

General Laws (Ter. Ed.) c. 29, § 20: 

"No account or demand requiring the certificate of the comptroller or 
warrant of the governor shall be paid from an appropriation unless it has 
been authorized and approved by the head of the department, office, com- 
mission or institution for which it was contracted; nor shall any appro- 
priation be used for expenses, except gratuities and special allowances by 
the general court, unless properly approved vouchers therefor have been 
filed with the comptroller." 

General Laws (Ter. Ed.) c. 29, § 22: 

"Except as otherwise expressly provided, no greater sum from an appro- 
priation shall be drawn from the treasury at any one time than is necessary 
to meet expenses then incurred." 



p. D. 12. 43 

Statute 1950, c. 639, creates a civil defense agency and, among other 
things, specifically grants to the Governor the right to make any expendi- 
tures v^ithin the appropriation therefor or from other funds made available 
to him for the purposes of civil defense as may be necessary to carry out 
the purposes of this act. It also provides th:it he may co-operate with the 
Federal Government. 

The language of chapter 29, sections 20 and 22, implies that no monies 
can be paid from an appropriation until the specific material, labor or 
services have been purchased or contracted for; and therefore forbids 
payment in advance of a purchase or contract. Statute 1950, c. 639, how- 
ever, seems broad enough to permit the Governor to co-operate with the 
Federal Government for the purpose of pooling the purchase of defense 
equipment and supplies, particularly when tlie public safety is in danger. 

Under those circumstances I answer both your questions in the affirma- 
tive. 

Nevertheless, some doubt might arise as to the conflicting authority 
granted by the aforesaid stufutory provisions nnd, since the Legislature is 
now in session, it would be advisable to amend the aforesaid chapter 29 
to permit the action desired. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Public Utilities — Common Carrier — Statute. 

Apr. 3, 1951. 
Hon. Thomas A. Flaherty, Chairman, Department of Public Utilities. 

Dear Sir: — You have asked me for an opinion interpreting the effect 
of G. L. (Ter. Ed.) c. 159B, § 2, under the circumstances hereinafter de- 
scribed. 

You state that a wholesale grocery company sells merchandise to retail 
stores out of its warehouses in Bo.ston and New Bedford ; that its business 
is substantial, amounting in gross to about six or seven million dollars a 
year out of Boston ; that it quotes a price to its customers for these goods 
f.o.b. at its Boston or New Bedford warehouses; that if the customer 
wishes the goods delivered at his place of business the company quotes 
an additional charge which is stated on its invoice; that said charge on 
the average covers the actual cost of transporting the goods; that title 
to the goods does not pass until they are delivered to the customer; that 
the drivers of the trucks are all in the employ of the company; and that 
said grocer}' company does not carry goods for anyone else and does not 
advertise or otherwise hold itself out to carry merchandise generally. 

You wish to know whether said grocery company is a common or con- 
tract carrier within the meaning of chapter 159B, section 2. 

In said section a "common carrier by motor vehicle" is defined as "any 
person who directl}', or by his agent or under a lease or any other arrange- 
ment, or by arrangement wth any other common carrier or with any 
contract carrier, transports property, or any class or classes of property, 
for the general public by motor vehicle, for compensation, upon ways, 
over regular or irregular routes. ..." A "contract carrier by motor 



44 P. D. 12. 

vehicle" is defined as "any person, not included in the term 'common 
carrier by motor vehicle ' . . . who, under special and indi^^dual contracts 
or agreements, directly or by his agent or under a lease or any other ar- 
rangements, transports property by motor vehicle for compensation upon 
ways." 

The intent of the Legislature in this respect must be gathered from the 
words in which the statute is couched, giving them tlieir ordinary mean- 
ing unless there is something in the statute indicating that there should 
be a different signification, and from the main object sought to be accom- 
plished by the enactment. Aleunier's Case, 319 Mass. 421. 

Furthermore, we must look beyond the letter of the statute where a 
literal construction would be inconsistent ^^ith the legislative intent. Price 
V. Railway Express Agency, 322 Mass. 476, 484. 

Section 1 of said chapter 159B declares the policy of the Legislature to 
be substantially as follows : 

To regulate transportation of property b}^ motor veliicle in order to 
promote efficient ser^-ice, reasonable charges therefor, and mthout unjust 
discrimination or destructive competitive practices, to co-ordinate the 
transportation by motor carriers or other carriers, to develop a highway 
transportation system properly adapted to the needs of the coimnerce of 
the Commonwealth and to promote safety upon its ways in the interest 
of its citizens. 

In First National Stores Inc. v. //. P. Welch Co., 318 Mass. 147, at 149, 
the Court said : 

"A common carrier is one who holds himself out to the public as one 
mlling to furnish his facilities for the transportation of goods or persons 
indiscriminately to all who apply to him for the rendition of such services, 
up to the extent of his facilities, upon the payment of reasonable com- 
pensation . . . while a private carrier is one who holds himself out as 
ready to furnish transportation for hire only to those with whom he 
chooses to deal in accordance with such contracts as he makes with them." 

The grocery company cannot be a common carrier within the purview 
of this language because the company holds itself out onl}^ to transport 
merchandise for those people who purchase from it. 

As to contract carriers, the purpose of the Legislature appears to be the 
regulation of those who generally, or only occasionalh*, make special con- 
tracts to carry for hire. The Legislature did not, however, intend by this 
statute to regulate the veliicles of those engaged primaril,y in selling mer- 
chandise and maldng delivery thereof to the purchaser. The fact that 
included in the sale price of the merchandise is an item for carriage is 
purel}^ incidental to the lousiness of selling. It is common knowledge that 
in determining the sale price of an article of conmierce the seller first com- 
putes his own cost ; and one of the items of cost is the cost of delivery (if 
the seller is to make delivery). 

If the grocery company's practice was to charge for its merchandise 
f.o.b. the buyers' door, no one would think of calling it a contract carrier 
because included in the price was the expense the grocery company in- 
curred in maldng the delivery. It does not become a contract carrier by 
declaring to its customers "if you will pick up your purchase at our ware- 
house the price will be so much less." This practice is no different from 
fixing a price for dehvery at the warehouse and then adding the cost of 



p. D. 12. 45 

carriiige if delivery i.s made to the buyers' door. The fact that the title 
to the merchandise does not pass until delivered to the buyer is also sig- 
nificant. 

I therefore answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Mental Health — Employees — Military Leave. 

Apr. 6, 1951. 
Department of Mental Health. 

Gentlemen : — You have requested m.y opinion interpreting the effect 
of the law under the circumstances hereinafter described. 

You state that certain employees of the Commonwealth are doctors 
and have entered on active duty with the United States Public Health 
Service, of the Federal Security Agency, as physicians and as commis- 
sioned officers. You wish to know whether said employees are entitled to 
military lea^'e. 

According to DCO Circular No. 3-50 (attached to your request) pub- 
lished by the Federal Security Agency, Public Health Service, in Februarj^, 
1950, the President of the United States by Executive Order 9575 de- 
clared the entire commissioned corps of the Public Health Service to be a 
military service and branch of the land and naval forces of the United 
States during the period of World War II; that this order became effective 
on July 29, 1945, and that said order is still in effect. 

Such medical officers are therefore to be treated like all other employees 
of the Commonwealth who have served or are now serving in the land 
and naval forces of the nation. They are entitled to all the rights and 
privileges granted by St. 1941, c. 708, and the various amendments thereto. 

I refer you to two opinions, dated April 27, 1950, which I rendered to 
the Commissioner of Administration on the nature of said rights and 
privileges. 

I therefore answer \'our question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Civil Service and Registration — Plumbing — Inspection — Permit. 

Apr. 6, 1951. 
Hon. Michael H. Condron, Director of Registration. 

Dear Sir: — You have requested my opinion interpreting the effect 
of G. L. (Ter. Ed.) c. 142, as amended, under the circumstances herein- 
after described. 

Chapter 142 is entitled "Supervision of Plumbing," and the pertinent 
sections referred to in your question are 8, 13, 17, 18, 19, 21, and 22. 

Section 8 provides that if any town has not prescribed plumbing regu- 



46 P. D. 12. 

lations under section 13, the board of health of the town may apply to the 
Board of State Examiners of Plumbers for the formulation of such regu- 
lations, and the board shall formulate rules relative to the construction, 
alteration, repair and inspection of all plumbing in said town. 

Section 13 provides that each city, except Boston, and each town of five 
thousand or more inhabitants shall prescribe regulations for the material, 
construction, alteration and inspection of all pipes and fixtures by or 
through which waste water or sewage is used and carried; "and shall 
further provide that no plumbing shall be done . . . without a permit 
first being issued therefor, upon such terms and conditions as such cities 
or towns shall prescribe." 

Sections 17, 18, and 19 require that certain water supply pipes, tanks, 
safety valves and heating appliances shall meet certain specifications be- 
fore they can be installed. 

Section 21 pro\'ides that the board of examiners shall formulate rules 
relating to plumbing work in buildings owned and used by the Common- 
wealth. 

Section 22 provides that inspectors of plumbing shall enforce the pro- 
visions of sections 17, 18 and 19. 

You state that in pursuance of sections 8 and 21 the board of examiners 
has defined "plumbing" as including the installation of pipes, fixtures or 
apparatus for bringing in the water supply as well as removing liquid 
and water-borne wastes. 

You pose four questions : 

(1) In a city or town wliich is subject to section 13 of said chapter 142 
and has adopted a plumbing code in pursuance thereof, and is therefore 
not subject to section 8, are the water supply pipes, tanks, valves and 
heating appliances specified in sections 17, 18 and 19 "plumbing"? 

(2) If the answer to (1) is in the affirmative, is said plumbing subject to 
inspection by plumbing inspectors under the provisions of section 22? 

(3) If the answer to (1) is in the affirmative, is a permit necessary to 
install, repair or relocate said materials? 

(4) If the answer to (1) is in the affirmative, can a permit to do plumb- 
ing in such a city or town be issued to a non-licensed person? 

The title of chapter 142 is "Supervision of Plumbing." It should be 
interpreted according to the legislative intent appearing from the language 
thereof in connection with the subject matter and the object to be accom- 
plished. Kneeland v. Emerton, 280 Mass. 371, 376. Its purpose is the 
conservation of the public health from the deleterious effects which may 
arise from unsanitary and insufficient plumbing work due to the lack of 
technical knowledge and skill of those who perform it. Barriere v. 
Depatis, 219 Mass. 33, 36. Attorney General v. Union Plumbing Co., 301 
Mass. 86. 

Although the act gives a list of definitions in section 1, the word " plumb- 
ing" is not defined. We must therefore look to tlie lexicographers. Web- 
ster's dictionary defines "plumbing" as a plumber's occupation, a plumber's 
work; and defines "plumber" as one who fits and repairs water and gas 
pipes, cisterns, water closets, etc. Consequently, "plumbing" is the fit- 
ting and repairing of water and gas pipes, etc., and also the finished product. 

It is therefore unnecessary to determine whether the definition adopted 
by the board of examiners in pursuance of sections 8 and 21 can be here 
applied. 

Let us examine the ancestral legislation of section 13. In 1888 the in- 



p. D. 12. 47 

stallation of the tanks and appliances here in question could be regulated 
because St. 1888, c. 105, provided that any city, except Boston, may bj^ 
ordinance prescribe rules for the construction, alteration and inspection of 
all pipes, tanks and fixtures "by or through which water or sewage is car- 
ried." Then St. 1893, c. 477, § 6, substituted the word "shall" for the 
word "may" and also substituted the words "by and through which waste 
water or sewage is used and carried." But this statute added "and shall 
further provide that no plumbing work shall be done except in the case of 
repair of leaks, without a permit being first issued therefor upon such 
terms and conditions as such city and town shall prescribe." The Legis- 
lature thus specifically required the regulation of all plumbing. Statute 
1894, c. 455, § 7, merely added a provision that the board of health could 
also make rules and regulations in regard to plumbing not inconsistent 
with those e.'^tablished by the legislative body of the city or town. 

The Legislature in its codification of 1902, R. L., c. 103, § 7, incorporated 
the law as it stood in 1894. 

We have seen that section 13 of the present law provides that cities or 
towns subject to chapter 142 shall pro\dde that no plumbing (with excep- 
tions not here pertinent) shall be done without a permit. The installation 
of the appliances described in sections 17, 18 and 19 is clearly "plumbing" 
and therefore requires a permit under section 13. Under section 22 the 
inspector of plumbing cannot possibly enforce the provisions of said sec- 
tions 17, 18 and 19 unless he sees or inspects the work. According to a 
recent opinion I gave to you, plumbing subject to inspection can be per- 
formed only by a licensed person. 

I therefore answer your first three questions in the affirmative and 
your fourth question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



State Airport Management Board— Judgments — Bond Issue. 

Apr. U, 1951. 
State Airport Management Board. 

Gentlemen: — You have asked my opinion for an interpretation of the 
law under the circumstances hereinafter described. 

You state that judgments amounting to $41,158.11 have been obtained 
against the Commonwealth for the taking of land by the Department of 
Public Works in 1947 while it was operating the Logan Airport; that the 
bond issue which provided the money for the Department of Public Works 
in that particular year was authorized by St. 1946, c. 595, § 2, which pro- 
vided: 

"To meet the expenditures necessary in carrying out the provisions of 
this act, the state treasurer shall . . . issue and sell . . . bonds of the 
commonwealth . . . not exceeding . . . the sum of six milHon dollars"; 

that of the proceeds of this bond issue there is on hand only 1541.55; that 
St. 1947, c. 676, § 1, provided: 



48 P. D. 12. 

"The state department of public works ... is hereby authorized and 
directed further to enlarge, extend, improve and develop . . . Logan 
Airport . . ."; 

that section 4 of said act provided : 

"To meet the expenditures necessary in carrying out the provisions of 
this act the state treasurer shall . . . issue and sell . . . bonds of the 
commonwealth . . ."; 

and that St. 1949, c. 745, and St. 1950, c. 760, give the same authority to 
the Commissioner of Airport Management and the same authority with 
respect to bond issue as is found in St. 1947, c. 676. 

You wish to know whether you have authoritj^ to pay the aforesaid 
judgments out of the proceeds of the bond issues that were authorized after 
the land takings were made. 

The answer to your question will depend upon a reasonable interpreta- 
tion of the different statutes involved in order to determine the legislative 
intent. Said intent should be gathered from the words in which the statute 
is couched, giving them their ordinary meaning unless there is something 
in the statute indicating that they should have a different signification; 
from the pre-existing state of the common and statutory law; and from 
the main object sought to be accomplished by the enactment. Meunier's 
Case, 319 Mass. 421. Furthermore, 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. 

It would seem clear that when these statutes were enacted in 1947, 1949 
and 1950 the Legislature had actual if not constructive notice of land 
takings for the further development of the airport; that the courts might 
award damages in excess of any appropriation which was originally made; 
and that persons whose property was taken by eminent domain should be 
compensated therefor without undue delay. 

It would therefore seem reasonable to attribute to the Legislature an 
intention (when authorizing or directing a further development of the air- 
port) that any available funds derived at any time from a bond issue 
should be used to pay for such judgments. 

I therefore answer your question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Education — Private Trade School — Profession — Physiotherapy. 

Apr. 13, 1951. 

Department of Education. 

Gentlemen: — You have asked me for an opinion interpreting the 
effect of the law under the circumstances hereinafter described. 

According to the documents attached to your request it appears that 
on June 23, 1933, the Boston Evening Clinic and Hospital was incorporated 
as a charitable institution; that the corporation established a training 
school of physiotherapy and massage; that all the activities of the corpora- 



p. D. 12. 49 

tion are conducted on its premises at 452 Beacon Street, Boston; that 
ailing members of the public are treated on said premises by a staff of 
competent and voluntary members of the medical profession; that this 
trei^iment is furnished gratis or at a greatly reduced rate for those who 
are able to paj-; that the receipts from patients do not cover the expenses 
of operation, and charitable contributions are needed and received for 
this purpose; that the corporation does not undertake to operate for 
profit, but it charges a tuition fee to students; that treatment is also given 
in the phj'siotherap}^ department or school; that students in this depart- 
ment thus acquire clinical experience; that the students attend lectures 
and courses in various branches of medicine and roentgenology; and that 
a hospital diploma is issued to the students on graduation. 

You seek to know whether the corporation is conducting a private trade 
school within the meaning of St. 1941, c. 583. 

Section 21A of the act defines a private trade school as follows: ''. . . 
a school maintained, or classes conducted, for the purpose of teaching an)' 
trade or industrial occupation for profit or for a tuition charge." 

What the Legislature intended by this definition must be gathered from 
the words in which the statute is couched, giving them their ordinary mean- 
ing unless there is something in the statute indicating that they should 
have a different signification, and from the main object sought to be ac- 
complished by the enactment. Meunier's Case, 319 Mass. 421. 

It appears the Legislature used the words "trade or industrial occupa- 
tion" almost synon^niiously. The Legislature manifesth^ did not intend 
to include in the definition every vocation, and it certainlj^ did not intend 
to include those embraced in the professions, but only those that related 
to trade or industry. Persons trained to administer to the sick do not 
engage in a trade or industrial occupation; but on the contrary are prac- 
tising a profession. Compare McAfurdo v. Getter, 298 Mass. 363, where 
the court said that although the statute speaks of an optometric practice 
or business, optometrists are in effect placed on a professional plane. 

The practice of physiotherapy^ is no less a profession than optometry. 
Consequently, I answer your question in the negative. 

Ver}- truly yours, 

Francis E. Kelly, Attorney General. 



Administration and Finance — Appropriations — Extending Time Limi- 
tation. 

May 14, 1951. 
Hon. Thomas H. Bvckley, Commissioner of Administration. 

Dear Sir: — You have sought my opinion as to the effect of time limi- 
tations on appropriations made by the General Court under the provisions 
of St. 1949, c. 309, and St. 1949, c. 790. In 3^our request you state that a 
large amount of authorized financing under the provisions of the two 
statutes in question has not been encumbered up to this time due to 
various substantial reasons for reserving the monies appropriated for fu- 
ture expenditures for purposes included mthin the scope of the legislation. 

There was incorporated by the Legislature, by express reference in each 



50 P. D. 12. 

of the statutes under consideration, the following provision making each 
statute subject to G. L. (Ter. Ed.) c. 29, § 14: 

"... all projects authorized by this act shall be considered as special 
appropriations, so called, as provided in section fourteen of chapter twenty- 
nine of the General Laws, as amended." 

Each of the statutes bore an emergency preamble. Statute 1949, c. 309, 
was signed by the Governor on May 20, 1949, and St. 1949, c. 790, was so 
signed on August 29, 1949, each statute thus becoming law at once. At 
the time of such approval G. L. (Ter. Ed.) c. 29, § 14, read as follows: 

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

In 1950 the Legislature enacted St. 1950, c. 43, by which statute the 
two-year limitation was raised to a five-year limitation under which the 
unencumbered balances of special appropriations "shall revert to the 
commonwealth at the close of such fifth or other designated year." This 
.statute of 1950, mo.'^t recently amending G. L. (Ter. Ed.) c. 29, § 14, reads 
as follows: 

"Appropriations for other than ordinary maintenance, unless otherwise 
specifically provided therein, shall be available for expenditure in the two 
fiscal years following June thirtieth of the calendar year in which the appro- 
priation is made and any portion of such appropriation representing en- 
cumbrances outstanding on the records of the comptroller's bureau at the 
close of such second fiscal year may be applied to the payment thereof any 
time thereafter. The unencumbered balance of such appropriation shall 
revert to the commonwealth at the close of such second, or other desig- 
nated, fiscal year; pro\dded, however, that appropriations for other than 
ordinary maintenance financed by the sale of bonds and notes, unless other- 
wise specifically provided therein, shall be available for expenditure in the 
five fiscal years following June thirtieth of the calendar year in which the 
appropriation is made and any portion of such appropriation representing 
encumbrances outstanding on the records of the comptroller's bureau at 
the close of such fifth fiscal year may be apphed to the payment thereof 
any time thereafter. The unencumbered balance shall revert to the com- 
monwealth at the close of such fifth or other designated fiscal year." 

You are informed that to extend the life of the appropriations made 
under the two 1949 statutes, namely, chapter 309 and chapter 790, legis- 
lative action will be necessary to bring both statutes within the provisions 
of G. L. (Ter. Ed.) c. 29, § 14, as most recently amended in 1950, in order 
to obtain the five-year instead of the two-year limitation. This legislation 
which you propose would be a valid exercise of the legislative power and 
would not affect the validity of bond issues heretofore or hereafter made 
under the provisions of these statutes. 

Very truly yours, 

Francis E. Kellv, Attorney General. 



1 



p. D. 12. 51 

Civil Defense — Loyalty Oath. 

May 15, 1951. 
Hon. John F. Stokes, Director, Civil Defense Agency. 

Dear Sir : — You have recently asked me for an opinion interpreting 
the effect of St. 1950, c. 639, § 18, under the circumstances hereinafter 
described. 

You state that by Executive Order certain departments, divisions or 
other agencies of the Conmionwealth vcvixy be assigned (as a sponsoring or 
supporting State agency) to assist in the performance of civil defense 
functions; and that section 18 of chapter 639 requires a certain oath to 
be taken by "each person who is appointed to serve in an organization for 
civil defense ..." 

You wish to know whether the emploj'ees of departments, divisions or 
other agencies of the C'onnnonwealth must take the oath, even though 
they are not specifically appointed to serve in an organization for civil 
defense. 

Statute 1950, c. 639, creates the "Civil Defense Agency." In order 
effectively to interpret section 18 of that chapter we must examine the 
main features of the whole act. 

The act contains an emergency preamble which declares its purpose to 
be "in part to unify the sovereign powers of the commonwealth for the 
purpose of meeting the public need." 

Section 1 of the act defines "civil defense" to be "the preparation for 
and the carrying out of all emergenc}" functions, other than functions for 
which military forces other than the national guard are primarily re- 
sponsible, for the purpose of minimizing and repairing injury and damage 
resulting from disasters caused by attack, sabotage or other hostile action 
or by fire, flood, earthquake or other natural causes; said functions shall 
include specifically, but \nthout limiting the generalit}' of the foregoing, 
fire-fighting and police ser\ices, medical and health ser\dces, rescue, en- 
gineering and air-raid warning services, evacuation of persons from 
stricken areas, emergency welfare services, communications, radiological, 
chemical and other special weapons of defense, emergency transportation, 
existing or properl}^ assigned functions of plant protection, temporary 
restoration of public uti'itv' services and other functions." 

A "local organization for civil defense" is defined as "an organization 
created in accordance \x\i\\ the pro\'isions of this act by state or local 
authority to perform local civil defense functions." 

Section 2 provides in part that the Director of Civil Defense "shall 
co-ordinate the activities of all organizations for civil defense within the 
cormnonwealth, and shall co-operate and maintain liaison vvith civil de- 
fense agencies of other states and the federal government ..." 

Sections 10 and 11 relate to the authorit}' of state and local police and 
fire forces for the protection of life and property; and the appointment of 
auxiliary fire, police or other public protection units as may be approved 
b}^ the civil defense agency. 

Section 12 relates to the liabilit}^ of the Commonwealth, its political 
subdivisions, or other agencies, or "any person engaged in any civil de- 



52 . P. D. 12. 

fense activities" while in good faith complying with the provisions of the 
act or rules or regulations promulgated in pursuance thereof. 

Section 13 provides for the establishment of local organizations for 
civil defense in accordance with the state civil defense plan and program. 

Section 16 provides that the Governor or others in carrjdng out the pro- 
visions of the act shall utilize the services, facilities, officers and personnel 
of existing departments, offices and agencies of the Commonwealth, and of 
political subdivisions thereof, to the maximum extent practicable. 

Section 18 provides that "no person shall be employed ... in any 
capacity in any civil defense organization . . . who advocates, or has ad- 
vocated, . . . the overthrow of any government in the United States by 
force or \-iolence . . . Each person who is appointed to serve in an or- 
ganization for civil defense shall, before entering upon his duties, take an 
oath, in writing, before a person authorized to administer oaths in this 
commonwealth, which oath shall be substantially as follows: . . . 'And I 
do further swear (or affirm) that I do not advocate, nor am I a member of 
any political party or organization that advocates, the overthrow of the 
government of the United States or of this commonwealth by force or 
violence . . .'" 

In the construction of an}- act, the legislative intent is to be gathered 
from the words in which the statute is couched, giving them their ordinary 
meaning (unless a different signification is indicated in the context) ; from 
the pre-existing state of the common and statutory law; from the evil or 
mischief toward which the statute was apparently directed; and the main 
object sought to be accomplished bj' the enactment. Meunier's Case, 
319 Mass. 421. 

Furthermore, we must look beyond the letter of the statute where a 
literal construction would be inconsistent with the legislative intent. 
Price V. Railway Express Agency, 322 Mass. 476, 484. 

Thrusting aside the brambles of technical verbiage, we discover the 
basic intent of the Legislature to be the preservation and protection of 
the public against disastrous results of attack, sabotage or other hostile 
action or catastrophes of nature. To meet this emergency a civil defense 
agency is created, under the direction of the Governor, with broad powers. 
Specific provision is made for the utilization of the officers and personnel 
of all governmental agencies. State and local; but no person shall be 
"associated in any capacity in any civil defense organization" who ad- 
vocates, or has advocated, the use of force or violence to change or over- 
throw the Federal or State Government; and an oath in writing not to 
advocate such force or violence is required of "each person who is ap- 
pointed to serve in an organization for civil defense." 

Whether existing governmental agencies are assigned to assist in the 
performance of civil defense functions or new public protection units are 
created, all the personnel thereof must be loyal and patriotic adherents 
of our present constitutional form of government. A chain of authority 
is no stronger than the weakest link exercising said authority. One person 
"associated in any capacity in any civil defense organization" could sabo- 
tage the whole program. It is true that some of the personnel of a govern- 
mental agency assigned to civil defense may have no palpable associa- 
tion with civil defense activities; and literally they are not at the time the 
agency is assigned "appointed to serve in an organization for civil defense." 

We must, however, look beyond the literal words of the statute. The 



p. D. 12. 63 

Legislature clearly intended to screen and abort all potential saboteurs by 
requirinji' the oath of all who are dissociated, even remotel>', with the civil 
defense program. 

I therefore answer your question in the affirmative. 

Very truly yours, 

Francis E. Kellv, Attorney General. 



Administration and Finance — Overtime Compensation — Rules. 

May 18, 1951. 

Hon. Tuo.MAS H. Bl'Cklj:v, Commissioner of Administration. 

Dear Sir: — You htive asked my opinion interpreting the effect of the 
law under the circumstances hereinafter described. 

You state that on April 27, 1948, in a formal opinion, the then Attorney 
General declared tliat the Metropolitan District Commission had authority 
"to continue the employment of Construction Division personnel with- 
out the approval of the Division of Personnel and Standa.rdiziition " ; that 
on April 14, 1943, the Governor's Council approved a ruling of the Com- 
mission on Administration and Finance as follows: ''No compensation 
shall be paid under this rule without prior approved of the Division of 
Personnel and Standardization"; that St. 1949, c. 448, and St. 1950, 
c. 512, amended G. L. (Ter. Ed.) c. 7, § 7, so as to read in part as follows: 
"The commissioner [of adininistration] shall, subject to the approval of 
the commission on administration and finance and the governor and 
council, from time to time, make rules and regulations which shall regulate 
travel, maintenance charges or payments in lieu thereof, vaca,tion leave, 
sick leave and other leave with pay, including compensation for overtime 
service, for permanent and temporaiy employees"; and that in pursuance 
thereof the Commissioner of Administration promulgated certa,in rules 
(approved by the Go\'ernor and Council, effective March 1, 1951) among 
which was the following: "OE 2- Subject to prior approval b}^ the Divi- 
sion of Personnel and Standardization, overtime compensa,tion will be 
paid ... to persons employed by the Commonwealth . . '. [with ex- 
ceptions not here pertinent]." 

You wish to know whether payment for overtime to certain emploj^ees 
of the Construction Division is subject to the aforesaid rule approved on 
April 14, 1943, or whether it falls witiiin tlie sweep of the aforesaid opinion 
of the Attorney General. 

An examination of the opinion discloses that the Metropolitan District 
Commission by virtue of St. 1947, c. 583, succeeded to all the powers and 
obligations of the .Metropolitan District Water Supph' Coiinuission; that 
by St. 1926, c 375, § 2, the Metropolitan District Water Supply Commis- 
sion had authority to engage employees and to fix their compensation ac- 
cording to its own rules; that such employment was not subject to classi- 
fication under G. L. (Ter. Ed.) c. 30, §§ 45-50; and that under section 2 
of St. 1947, c. 583, none of the provisions of the civil service law sliould 
apply to such employees. 

Prior to St. 1949, c. 448, and St. 1950, c. 512, the Division of Personnel 
and Standardization (the authority of which is primarily derived from 



54 P. D. 12. 

chapter 30, sections 45-50) had no jurisdiction over the employees of the 
Construction Division of the Metropohtan District Commission; the 
Commission on Administration and Finance could not give the division 
any jurisdiction not authorized b}^ statute; and overtime compensation 
could not be treated differently from base pa}-. 

The aforesaid amendments to G. L. (Ter. Ed.) c. 7, § 7, however, specifi- 
cally give the Commissioner of Administration authority to make rules 
governing overtime pay of all employees of the Commonwealth; and 
Rule OE 2 requires the approval of the Division of Personnel and Stand- 
ardization with respect to overtime compensation. 

I therefore answer your question in the negative; but add that in ac- 
cordance with G. L. (Ter. Ed.) c. 7, § 7, as amended in 1949 and 1950, 
and the rules promulgated in pursuance thereof, the approval of the Divi- 
sion of Personnel and Standardization is required with respect to overtime 
compensation. 

Verj'- truly 3'^ours, 

Francis E. Kelly, Attorney General. 



Administration and Finance — Civil Service — Temporary Employees — 
Credit for Military Service — Reinstatement. 

June 26, 1951. 
Hon. Thomas H. Btcklev, Commissioner of Administration. 

Dear Sir : ~ You have asked my opinion interpreting the effect of 
St. 1941, c. 708, under the circumstances hereinafter described. 

You state that on January 6, 1942, "A" (certified under civil service) 
was employed as a junior clerk in the Department of the Secretary of 
State on a temporary basis but in a position in the classified service (classi- 
fied under G. L. [Ter. Ed.] c. 30, §§ 45 and 46, as well as G. L. [Ter. Ed.] 
c. 31, the civil service law); that on May 31, 1942, he was drafted into the 
armed forces and on December 7, 1945, received an honorable discharge; 
that within n few days there.u''ter he applied for his old position with the 
Department of the Secretary of State; that instead of being reinstated to 
that position, his name was placed (by ci\dl service) on the active list for 
appointment; and that on July 1, 1946, he was appointed on a permanent 
basis to the position of junior clerk in the Adjutant's General Department. 

You wish to know: 

1. Does St. 1941, c. 708, apply to temporary employees in the same 
manner as permanent employees? 

2. Should "A" be given credit not only for the period January 6, 1942, 
through Aiay 31, 1942, but also from June 1, 1942, to July 1. 1946? 

On April 27, 1950, I rendered to you an opinion analyzing the different 
features of chapter 708. Those provisions pertinent to your present in- 
quiry follow. 

Section 1 provides that any person who, after Januar}' 1, 1940, shall 
have terminated his service with the Commonwealth, or any political sub- 
division thereof, in order to serve in the armed forces of the United States, 
shall be deemed to be on leave of absence until two years from the termi- 
nation of his military service. 

Section 2 provides that any person described in section 1 who holds a 



p. D. 12. 56 

position which is classified under civil service shall be reinstated without 
examination or loss of seniority rights if he makes a written recjuest there- 
for witiiin two years after the termination of his military service and files 
a m.edical certificate that he is not disabled: and all appointments, trans- 
fers and promotions made on account of such, leave of absence shall be 
temporary, and the person so appointed, transferi'Cfl or promoted shall be 
called a military substitute. 

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 in- 
terrupted 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. 

It thus appears that the Legislature intended to treat those subject 
thereto who were on military leave of absence as if they were physically 
working at their jobs. These sections of the statute make no distinction 
a« to the character of one's service, whether it is permanent or temporary. 

Since St. 1945, c. 703, § 1, became effective a temporary appointment is 
made for a specified time after certification from an eligible list, but 
prior thereto a temporary employee could be dismissed at any time. Con- 
sequently, upon his reinstatement under section 2 of chapter 708, "A" 
was subject to immediate dismissal by the appointing authority; but we 
are not to assume this would have happened. We must, therefore, treat 
"A" as having those rights or benefits he would have had if he had been 
reinstated. 

Although a temporary employee acquires no seniority (length of serv- 
ice) under G. L. (Ter. Ed.) c. 31, § 15D, he nevertheless acquires other 
benefits accruing from the date he first enters the service of the Common- 
wealth. (See opinion to you dated February 17, 1950.) 

I therefore answer both your questions in the affirmative. 

Very trul.y 3^ours, 

Francis E. Kelly, Attorney General. 



Labor and Industries — Motion Picture Operators — Commercial Occupa- 
tion . 

June 26, 1951. 
Hon. John J. DelMonte, Commissioner of Labor and Industries. 

Dear Sir: — You have requested my opinion as to whether motion 
picture operators, so called, come within the protection of the laws of the 
Commonwealth which pro\ide that employees in private employment, 
with certain exceptions, shall have one day's rest in each seven days of 
the week. 

The basic statute concerning the subject matter of youi- inquiry is G. L. 
(Ter. Ed.) c. 149, § 47, as most recently amended. This statute reads as 
follows : 

"Whoever, except at the request of the employee, requires an employee 
engaged in any commercial occupation or in the work of any industrial 



56 P. D. 12. 

process not subject to the following section or in the work of transportation 
or communication to do on Sunday the usual work of his occupation, un- 
less he is allowed during the six days next ensuing twenty-four consecutive 
hours without labor, shall be punished by a fine of not more than fifty 
dollars ; but this and the following section shall not be construed as allow- 
ing any work on Sunday not otherwise authorized by law." 

The question arises immediately under this statutor}^ provision as to 
whether or not motion-picture operators are included within the scope 
of the word "commercial" as used in the statute. 

The key ^vord in the statute is manifestly the word "commercial." 
The words of a statute are the main source for the ascertainment of the 
legislative purpose. The word "commercial" in varying contexts may in 
the light of sound interpretation have a narrower or a broader meaning, 
depending upon the particular context in which it is used. In interpreting 
the meaning of this word as used in the statute in question, the nature of 
the statute, its self-evident purposes and its objectives, among other per- 
tinent concepts, must be taken into account in order to assist in arriving 
at the legislative intention. 

The words and phrases used in a statute are an important, if not con- 
trolling, source from which the legislativ^e purpose is to be determined. 
Unless words or phrases have acquired technical meaning in the law they 
are to be construed "according to the common and approved usage of the 
language." G. L. (Ter. Ed.) c. 4, § 6, cl. 3. Commonwealth v. Griffith, 
204 Mass. 18. In the GriffUh case, a child labor case, in interpreting the 
word "work," the Supreme Judicial Court said: "The object of the 
statute forbids restriction of the word to a narrow meaning." It is to be 
here observed and noted that this decision related to the contruction of 
a penal statute. 

"The legislative intent in enacting a statute is to be gathered from a 
consideration of tlie words in which it is couched, giving to them their 
ordinary meaning unless there is something in the statute indicating that 
they should have a different significance ..." Meunier-'s Case, 319 
Mass. 421, 423; Duggan v. Bay State Street Railway, 230 Mass. 370, 374. 

The development of legislation, its progress through the legislative body, 
the liistory of the times, the trend of legislative purposes along social and 
humanitarian lines for the betterment of those who labor, the conserva- 
tion of human health and the insuring of the public safety are all matters 
which may be properly taken into consideration in reaching a rational con- 
clusion as to what was within the legislative intent in enacting the statute 
hereinbefore set forth. Comjnonweaith v. Welosky, 276 Mass. 398, 401. 

In G. L. (Ter. Ed.) c. 149, §§49 and 50, as amended, there are expressly 
set forth limitations and exceptions under which certain occupations are 
excluded from the benefit of the provisions of G. L. (Ter. Ed.) c. 149, § 47, 
the basic statute under consideration in this opinion. But these limitations 
and exceptions do not relate to nor include motion-picture operators. 

In my opinion the word "commercial" as adopted by the Legislature in 
drafting the stcitute was not used in a narrow and restricted sense. It was 
obviousl}^ intended to embrace many occupations in business, commerce 
and industry. The objectives of the statute alone are sufficient to sup- 
port this view. 

I therefore, on all the foregoing, answer your inquiry in the affirmative. 



p. D. 12. 67 

Motion-picture operators come uithin the provisions of G. L. (Ter. Ed.) 
c. 149, § 47, and are entitled to one day's rest in each week. In the light 
of sound reason and common sense, health and efficiency require this; 
public safety demands i(. 

Yours very truly, 

Francis E. Kelly, Attorney General. 



Mental Health — Board of Appeal — Power to Discharge Patients — 

Records. 

June 26, 1951. 

Department of Mental Health. 

Gentlemen: You have recentlv asked me for an opinion interpreting 
the effect of St. 1950, c. 764. 
You pose two questions: 

(1) Does the Board of Appeal have the power to discharge patients 
from our mental institutions? 

(2) Is the Board of Appeal entitled to the records of patients at mental 
institutions? 

Statute 1950, c. 764, amends G. L. (Ter. Ed.) c. 19 by adding a section 7 
which provides that there shall be in the Department of Mental Health, 
not subject to the control or supervision of the commissioner, a board of 
appeal consisting of three members (two to be appointed bj' the Governor 
with tlie advice of the Council and the third an Assistant Attorney General 
appointed by the Attorney General) who shall hear and determine appeals 
taken from decisions of the commissioner relative to the discharge of per- 
sons under either complete or limited supervision of the department. 

Decisions of the commissioner stem from G. L. (Ter. Ed.) c. 123. 

Section 1 of chapter 123 defines the word "department" to be the De- 
partment of Mental Health acting by and through the Commissioner of 
Mental Health. 

Section 5 of that chapter provides that the department shall have the 
power to investigate the question of insanity of an inmate of any institu- 
tion for the insane, public or private, and shall discharge such person if in 
its opinion he is not insane or can be cared for after discharge without 
danger to others and with benefit to himself. 

Section 90 of the same chapter requires the approval of the department 
before an unrecovered insane person may be discharged. 

The decisions of the commissioner in such cases arising under sections 5 
or 90 are the subject of the appeals referred to in said St. 1950, c. 764. 

When a general power is given, or a duty imposed, b}' statute, every 
particular power necessary for the exercise of the former or the performance 
of the latter is given by implication. Fluet v. McCahe, 299 Mass. 173. 

The general power to hear and determine appeals implies the right to 
revise or reverse the decisions appealed from. It therefore follows that if 
the commissioner renders a decision adverse to a patient seeking a dis- 
charge, a reversal by the Board of Appeal is tantamount to a discharge. 
It also follows that in order effectively to hear such appeals the board 



58 P. D. 12. 

should have before it all pertinent evidence, including the complete hospi- 
tal record of the mental patient seeking discharge. 

I therefore answer both your questions in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General.. 



Treasurer and Receiver General — Commonwealth as Party to an Action — 

Federal Law. 

June 26, 1951. 
Hon. John E. Hurley, Treasurer and Receiver General. 

Dear Sir : — You have requested mj' opinion interpreting the effect of 
the law under the circumstances hereinafter described. 

You state that the United States Collector of Internal Revenue has 
placed with the Department of Public Works a tax lien and also a levy in 
the sum of $13,605.68 against a certain contractor who is under a con- 
tract to perform work for the Department of Public Works. 

You wish to know whether the Commonwealth can be made a party 
to an action in the United States courts brought by the United States 
against the contractor. 

Article HI, section 2, of the Constitution of the United States provides 
that "the judicial power [of the United States] shall extend to all cases, 
in law and equity, arising under . . . the laws of the United States, . . . 
to controversies to which the United States shall be made a party. ..." 

In the case of William J. McCarthy Co. v. Rendle, 222 Mass. 405, the 
court held that the Conunonwealth could not be named as trustee in an 
action because the Commonwealth cannot be made a party in its own 
courts without its consent. But whether the Commonwealth can be made 
a party in the Federal courts depends upon the Federal law and not upon 
the law of the Commonwealth. 

I therefore answer your question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



p. D. 12. 



INDEX TO OPINIONS 



PAGE 

Administration and Finance : 

Appropriations ; extending time limitation 49 

Civil service; temporary employees; credit for military service ; reinstate- 
ment 54 



Emergency employee ; overtime compensation 

Overtime compensation; rules 

State emploj^ees ; military reserves; payments by State 

Agriculture; appointment; inspector of animals; tenure . 

Animals, inspector of ; api)ointment; tenure 

Appeal, Board of; power to discharge patients; records . 

Appropriations : 

Department of Conservation ; constitutional law 

Expenditures; public works 

Extending time limitation ; Administration and Finance 



13 
53 
14 
24 
24 
57 

21 
21 
49 



Armed forces, persons in; license renewal; Civil Service and Registration 28 

Bond issue; State Airport Management Board ; judgments .... 47 

Budget; credits; public works 37 

Charles River bridge; right to lay gas main 11 

Civil defense : 

Loyalty oath 51 

Powers of Governor; pooling money of Commonwealth with United States 

for defense 42 

Civil .service; tempoiary employees; credit for military service; reinstate- 
ment 54 

Civil Service and Registration : 

License renewal; persons in armed forces 28 

Plumbing; inspection; permit 45 

Common carrier; statute; public utilities 43 

Commonwealth : 

Money of, pooling with United States for defense; civil defense; powers 

of Governor 42 

Party to an action; Federal law; Treasurer and Receiver General 58 

Conduits and gas hnes; Metropolitan District Commission; permits; emi- 
nent domain; damages 22 

Conservation, Department of; appropriations; constitutional law ... 21 

Constitutional law: 

Appropriations; Department of Conservation 21 

Charles River bridge; right to lay gas main 11 

School lunches 38 

Contract; notice; public works 38 

Contract carrier; ashes and waste permit; Department of Public Utilities 27 

Education : 

Children of veterans ; veterans' benefits 29 

Private trade school ; profession ; physiotherapy 48 

School lunches; constitutional law 38 

Eminent domain; conduits and gas lines; Metropolitan District Conunis- 

sion; permits; damages 22 

Employees : 

Emergency; overtime compensation 13 

State; military reserves; payments by Stat^ 14 

Temporary; credit for military service; civil service ; reinstatement. 54 



60 P. D. 12. 

PAGE 

Expenditures; public works; appropriations 21 

Federal law; Commonwealth as party to an action; Treasurer and Receiver 

General 58 

Gas lines and conduits; Metropolitan District Commission; peimits; emi- 
nent domain ; damages 22 

Gas main, right to lay; Charles River bridge 11 

Governor, powers of; civil defense; pooling money of Commonwealth with 

United States for defense 42 

Labor and Industries, Department of; motion-picture operators; commer- 
cial occupation 55 

License renewal; persons in armed forces; Civil Service and Registration 28 

Loyalty oath; civil defense 51 

Medical panel; retirement; disability 34 

Mental Health, Department of: 

Board of Appeal; power to discharge patients; records .... 57 

Employees ; military leave 45 

Metropolitan District Commission: 

Conduits and gas hnes ; permits; eminent domain; damages ... 22 

Police officers ; overtime service; appropriations; war 16 

Military leave ; Department of Mental Health ; employees .... 45 
MiHtary reserves; State employees; payments by State .... 14 
Military service, credit for; temporary' employees; civil service; reinstate- 
ment 54 

Military settlements; veterans' benefits 18 

Motion-picture operators ; commercial occupation 55 

Old Age Assistance; settlement; public welfare 35 

Overtime compensation : 

Emergency employee 13 

Rules; Administration and Finance 53 

Overtime service; police officers; MetropoUtan District Commission . 16 

Patients, power to discharge; Board of Appeal ; records 57 

Physiotherapy; private trade school; profession 48 

Plumbing; inspection; permit 45 

Police officers; Metropolitan District Commission; overtime service 16 

Public health ; disabilitj^; retirement; medical panel 34 

Public utilities : 

Common carrier; statute 43 

Permit; contract carrier; ashes and waste 27 

Public welfare; Old Age Assistance; settlement 35 

Public works : 

Budget; credits 37 

Charles River bridge; right to lay gas main ; constitutional law 11 

Contract; notice 38 

Expenditures; appropriations 21 

Retirement; disability; medical panel 34 

School lunches ; education; constitutional law 38 

Settlement : 

Public welfare ; Old Age Assistance 35 

Veterans' benefits 25 

State Airport Management Board ; judgments; bond issue ... 47 
Treasurer and Receiver General; Commonwealth as party to an action; 

Federal law 58 

United States, pooling money of Commonwealth with, for defense; civil 

defense ; powers of Governor 42 

^'eterans' benefits: 

Children of veterans; education 29 

Military settlements 18 

Settlement 25 



p. D. 12. 61 

PAGE 

Vetenms, children of; education; veterans' benefits 29 

Veterans' Services: 

Duty of Commissioner in controversies 24 

Military settlements; war; veterans' benefits • • . ! . 18 

Veterans' benefits; settlement 25 



v^