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Public Document No. 12 



Ct)e Commontoealtt) of Q^asgacbuieietts; 



REPORT 



OF THB 



ATTORNEY GENERAL 



FOB THE 



Year ending June 30, 1952 




Public Document Nq. 12 



Cfte Commontoealtf) of 9^a00aci)U0ett0 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1952 



PUHLICATIOX OF THIS DOCUMENT APPROVED liY GeORGE J. CrONI.V. StATE PlRCHASING AgBNT. 

900-12-53-908281. 

L -J 



MAR 26 1954 

SfVWTE House. BOSTON 
M)K,S,^ OFFICIALS 



V 



A 



Cf)e Commontoealtl) of 0^as0acl)U0ett0 



Department of the Attorney General, 
Boston, December 2, 1952. 

To the Honorable Senate and House of Representatives. 

1 have the honor to transmit herewith the report of the Department 
for the year ending June 30, 1952. 

Respectfully submitted, 

FRANCIS E. KELLY, 

Attorney General. 



b 



C{)e Commontoeaiti) of ^a00aci)U0ett0 



DEPARTMENT OF THE ATTORNEY GENERAL 
State House 



Attorney General 
FRANCIS E. KELLY 



Assistant Attorneys General. 



TiMOTiiT J. Murphy 
Francis J. Roche 
Frank L. Simpson^ 
Henry P. Fielding 
Charles Alpert 
William S. Kinney 
Edward P. Healy 
H. AViLLiAiM Radovsky 
James J. Bacigalupo 
Bernard J. Killion^ 
David Miller^ 
David H. Stuart 



S.iMUEL H. Green 

Lenahan O'Connell 

William J. O'Neill 

Michael H. Selzo 

Joseph S. Vahey 

Charles H. AValters 

James G. Wolff 

Frank Ramacorti 

Lawrence E. Ryan^ 

John J. Cronin, Jr. ^ 

Eva G. Silva 

Jeannette Chisholm Sullivan 



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

M. Elizabeth Foley ^ 

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

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

Eli Y. Krovitsky ' Joseph A. Cieri » 

Secretary to the Attorney General 
James T. Burke 

Chief Clerk to the Attorney General 
Harold J. Welch 

Administrative Legal Consultant to the Attorney General 
James J. Kelleher^" 

Director of Division of Collections 
George E. Ahern^^ 



' Appointed Feb. 25, 1952. 
' On leave of absence. 
' Resigned Oct. 31, 1951. 
« Resigned Dec. 8, 1951. 
' Appointed Feb. 1, 1952. 
• Appointed Jan. 18, 1952. 



' .A-ppointed May 9, 1952. 

' On military leave of absence. 

' Appointed Jan. 18, 1952. 
' " On leave of absence. 
" Appointed Jan. 1, 1952. 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Period from July 1, 1951, to June 30, 1952. 

A ppropriations. 

Attorney General's Salary $12,000 00 

Administration, Personal Services and Expenses .... 249,753 00 

Claims, Damages by State Owned Cars ...... 17,000 00 

SmaU Claims 8,000 00 

Certain Superior Court Judgments ....... 16,300 00 

New York, New Haven and Hartford Railroad Investigation (Old 

Colony Division) 6,000 00 

Veterans' Legal Assistance ........ 19,020 00 



Total $328,073 00 

Expenditures. 

Attorney General's Salary $12,000 00 

Administration, Personal Services and Expenses .... 249,752 81 

Claims, Damages by State Owned Cars ...... 17,000 00 

Small Claims 8,000 00 

Certain Superior Court Judgments ....... 16,294 44 

New York, New Haven and Plartford Railroad Investigation (Old 

Colony Division) ......... 5,906 68 

Veterans' Legal Assistance ........ 18,998 56 



Total $327,952 49 

Financial statement verified (under requirements of c. 7, § 19, of the General Laws), 
December 1, 1952. 

By EDWIN J. TURNER, 

For the Comptruller. 

Approved for publishing. 

FRED A. MONCEWICZ, 

Comptroller. 



Cfte Commontoealt!) of qia0$ac|)U0ett0 



Department of the Attorney General, 
Boston, December 2, 1952. 

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, 1952, totaUng 12,936, are tabulated as follows: 



Extradition and interstate rendition ...... 

Land Court petitions ........ 

Land damage cases arising from the taking of land : 

Department of Public Works ....... 

Metropolitan District Commission ...... 

Department of Mental Health ...... 

Armory Commission ........ 

Misce]lane<ius cases, including suits for the collection of money due the Com- 
monwealth ......... 

Estates involving application of funds given to public charities 
Settlement cases for support of persons in state hospitals 
Pardons : 

Investigations and recommendations in accordance with G. L. (Ter. Ed.) 
c. 127, § 152, as amended ....... 

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

Cases in behalf of Division of Employment Security 

Cases in behalf of Veterans' Division ...... 



Ill 
128 

831 

87 
2 
1 

4,691 

916 

46 



111 
2,111 

891 
3,010 



Administration of the Criminal Laws. 

In my earher reports, as Attorney General, to the Legislature I have 
called attention to the administration of the criminal laws of the Common- 
wealth, stressing the fact that for the purposes of such administration the 
Commonwealth has been divided into nine districts. These districts are 
as follows: The Suffolk District comprises Suffolk county; the Northern 
District, Middlesex county; the Eastern District, Essex county; the 
Norfolk District, Norfolk county; the Plymouth District, Plymouth 
county; the Southern District, Bristol, Barnstable, Nantucket and Dukes 
counties; the Middle District, Worcester county; the Western District, 
Berkshire and Hampden counties; the Northwestern District, Franklin 
and Hampshire counties. 

Each of these districts is under a district attorney who is elected by the 
voters in his respective district. 

The performance of the important and numerous duties of these several 
district attorneys is aided and implemented by suitable staffs of assist- 
ant district attorneys in each of the several districts. 



8 P.D. 12. 

The criminal business of the Commonwealth is and should be handled 
in the main by and under the direction and supervision of the several dis- 
trict attorneys, each in his respective district. That is clearly the legisla- 
tive intent from which may be derived an intelligent, all-comprehensive 
policy undoubtedly intended by statutory mandate. 

It is not to be understood, however, that legislative policy has been 
created by the General Court which deprives and takes away any of the 
long-established powers, common law and statutory, possessed by the 
Attorney General as the chief law enforcement officer of the Common- 
wealth. As I have heretofore indicated in an earlier report: "Occasions 
may arise where the ramifications of criminal litigation might extend into 
more than one district. That situation might require a closer active partic- 
ipation and co-operation between the Attorney General as the chief law 
enforcement officer of the Commonwealth and the several district attor- 
neys whose districts might be concerned. . . . But in the ordinary and 
usual conduct of the criminal business of the State, it is my purpose to 
leave that responsibility in the hands of the several district attorneys. . . . 
It is to be observed, however, that whenever occasion necessarily requires 
the co-ordination of law enforcement agencies of the State, as chief law 
enforcement officer of the Commonwealth on such solemn occasions I 
shall not hesitate to act in the public interest by advice, exchange of views, 
or by such other action in court or otherwise as may be deemed neces- 
sary." 

Meetings of the several district attorneys and their assistants have been 
called and held from time to time at the office of the Attorney General. 
These meetings have been well attended and have undoubtedly resulted 
in increasing the efficiency of law enforcement in the Commonwealth. 
The willingness of the several district attorneys and their assistants to 
co-operate to this desirable end has been impressive. 

The office of the Attorney General has appeared in co-operation with 
district attorneys in proceedings in capital and other cases where proceed- 
ings have been brought by defendants in Federal courts seeking to have 
reviewed decisions rendered by the courts of the Commonwealth. Such 
cases have been brought in the District Court of the United States for the 
First District, the Court of Appeals for the First Circuit and the Supreme 
Court of the United States. 



Obscene Literature. 

The Advisory Committee on Juvenile Reading, made up of a number of 
civic-minded men and women, has followed a consistent course of con- 
structive activity during the past year. This committee came into exist- 
ence soon after I took office as Attorney General in 1949. As a result of 
the work of the committee much good has been accomplished. Publishers 
in many instances have shown a commendable spirit of co-operation by 
withdrawing from circulation in the Commonwealth publications harmful 
to children, which publications in all decency never should have been 
printed or published for any purpose. Much work in the proper direction 



P.D. 12. 9 

has been accomplished by the committee in effective courses of procedure 
in conjunction with the office of the Attorney General without unduly 
advertising the pornograpliic publications. There is much yet to be done 
to check the evils in this field. Appropriate efforts in the right direction 
must inevitably involve constant alertness and attention. A main object 
of procedure is to impress upon publishers the necessity in the public 
interest of cleaning their own houses. There must, for the sake of the 
children at least, be no slackening of effort in this respect. Common 
decency and the welfare of growing children require that the work should 
continue with unabated alertness and persistent action. 



Co-operation with State Agencies. 

There has been constant daily co-operation during the year by the office 
of the Attorney General with representatives and heads of departments, 
boards, commissions and other agencies of the Commonwealth by means 
of legal advice and other aids in solving problems confronting them in the 
performance of their official duties. Formal and informal opinions inter- 
preting the laws, both Federal and State, have been rendered, where called 
for, to the various State governmental agencies. 



Veterans. 

A full-time veterans' division has been continued to be actively main- 
tained in the department of the Attorney General during the past year. 
It has been staffed by two assistant attorneys general, each of whom is a 
veteran with war service and familiar with the rights of veterans under 
the law, both Federal and State. These assistants are of stature and ex- 
perience, possessing a complete understanding of the problems of the 
veterans and their dependents. One of the chief functions of the veterans' 
division is to give to the veteran not only legal advice, with reference to 
his problems, but also to channel him, where necessary, to other boards 
or agencies where he may find the information and aid he seeks. 



Staff Meetings. 

From time to time there have been called by me staff meetings of the 
assistant attorneys general and others in the department of the Attorney 
General. These meetings have resulted in the promotion of co-operation 
and efficiency in the official business of the department. 



Conclusion. 

I desire to express my deep appreciation of the services of the assistant 
attorneys general, my confidential secretary, and others of my legal assist- 
ants who have given prompt and efficient service. The civil service staff 
have performed their duties faithfully, intelligently and efficiently. 



10 P.D. 12. 

I further express my highest appreciation of the helpful co-operation 
and understanding of the Legislature and His Excellency the Governor. 

With a deep sense of gratitude and devotion I am sensible of the oppor- 
tunity and privilege of serving the people of this Commonwealth, 

Respectfully submitted, 

FRANCIS E. KELLY, 

Attorney General. 



OPINIONS. 



New Bedford, Woods Hole, Martha's Vineyard and Nantucket Steamship 
Authority ■ — Proposed Rates — Public Utilities. 

July 5, 1951. 
Hon. Thomas A. Flaherty, Chairman, Department of Public Utilities. 

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

You state that the New Bedford, Woods Hole, Martha's Vineyard and 
Nantucket Steamship Authority, established by St. 1948, c. 544 (herein- 
after called the Authority), in accordance with section 5 (c) of said act, 
filed with your department on June 7, 1951, a schedule of proposed rates 
to become effective within thirty days; that on June 14, 1951, in accord- 
ance A\'ith said section 5 (c), a petition was filed wdth the department pro- 
testing the proposed rate changes and requesting a public hearing; and 
that pending said hearing the department has been requested to suspend 
the taking effect of said rate changes. 

You \^ash to know whether G. L. (Ter. Ed.) c. 159, § 20, empowers the 
Department of Public Utilities to order that said proposed changes in 
rates shall not take effect until the department concludes its hearings and 
determines the propriety of said changes. 

Said chapter 159 relates to common carriers, and section 12 thereof pro- 
vides that the Department of Pubhc Utilities shall have jurisdiction and 
control over certain services rendered the public by "all persons, firms, 
corporations, associations and joint stock associations or companies fur- 
nishing or rendering any such service or services." 

Section 20 provides: "Whenever the department receives notice of any 
changes proposed to be made in any schedule filed under this chapter, it 
may . . . hold a public hearing and make investigation as to the propriety 
of such proposed changes. Pending any such investigation and the deci- 
sion thereon, the department may, by order served upon the common 
carrier affected, suspend, from time to time, the taking effect of such 
changes, ..." 

Statute 1948, c. 544, creates said Authority and in section 5 (c) empowers 
it "to fix, from time to time, such rates of fare and charges for service 
. . . as in the judgment of its members are best adapted . . . Rates so 
fixed shall be and remain in effect until changed by the Authority unless 
the department of public utilities shall upon petition and after a public 
hearing disapprove them. Such disapproval, if any, shall not be retroac- 
tive in effect." 

To ascertain the intention of the Legislature in connection with the 
above statutes we must consider the words used, giving them their ordin- 
ary meaning (unless otherwise indicated), the pre-existing state of the 



12 P.D. 12. 

common and statutory law, and the main object sought to be accom- 
pUshed by the enactments. Meunier's Case, 319 Mass. 421. 

Although, if reasonably practicable, one statute has to be explained in 
conjunction with other statutes so as to achieve a consistent and harmoni- 
ous body of law {School Committee v. Gloucester, 324 Mass. 209), and if 
statutes appear to be inconsistent with each other, in whole or in part, 
they must be construed so as to give reasonable effect to both, unless there 
is some positive repugnancy between them (Smith v. Director of Civil 
Service, 324 Mass. 455), nevertheless, a special statute enacted with refer- 
ence to the needs of a particular community prevails over a previous in- 
consistent general law. McKenna v. White, 287 Mass. 495, 499. Clancy 
v. Wallace, 288 Mass. 557, 564. 

Applying the above principles of statutory construction, it would appear 
that the general broad powers granted the Department of Public Utilities 
are restricted in their application to the Authority by the language of said 
section 5 (c). Statute 1948, c. 544, was enacted to solve a more or less 
local problem, and any language therein contained which is seemingly in- 
consistent with the provisions of said G. L. (Ter. Ed.) c. 159 will prevail. 

The Authority is thus empowered to fix rates from time to time and, 
when fixed, they shall continue until changed. Consequently, the rates 
prevailing prior to June 7, 1951, remained in effect until they were changed 
on June 7. The changes made on June 7, however, are subject to the dis- 
approval of the Department of Public Utilities, after a hearing. If the 
department disapproves said changes they shall become nullified, but the 
statute specifically declares, "such disapproval . . . shall not be retro- 
active in effect." This of necessity precludes the power to "suspend the 
taking effect of said rates" until after the hearing. 

This conclusion makes it unnecessary to consider whether a political 
entity or body corporate created to render the kind of service furnished 
by railroads, railways, steamships and the like is subject to said chanter 
159. 

I therefore answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Vagrancy — State Farm — Commitment. 

July 9, 1951. 
Hon, Maxwell B. Grossman, Commissioner of Correction. 

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

It appears from the copies of the mittimi attached to your request that 
on Apiil 23, 1951, the District Court of Leominster on Complaint No. 25334 
found one Mullaney guilty of vagrancy and sentenced him to the State 
Farm; that the execution of said sentence was suspended until July 23, 
1951 ; that on June 11, 1951, Mullaney was ag?in convicted of vagrancy on 
Complaint No. 25469 in the same court and sentenced to the State Farm ; 
that on said June 11,1951, the court revoked the suspension of execution 
of the sentence imposed on April 23, 1951, affirmed the original sentence 



P.D. 12. 13 

and ordered Mullaney committed to said State Farm; and also ordered 
that both sentences run concurrently. 
You propound two questions: 

"1. In view of St. 1951, c. 119, was Mullaney properly committed to 
the State Farm? 

" 2. If he was, how long may he be held there? " 

Prior to St. 1951, c. 119, G. L. (Ter. Ed.) c. 272, § 66, provided that 
vagrants should be punished by imprisonment in the House of Correction 
for not more than six months, or sentenced to the Massachusetts Reforma- 
tory or State Farm. 

G. L. (Ter. Ed.) c. 279, § 36, provides that in imposing a sentence of 
imprisonment at the State Farm the court shall not fix or limit the dura- 
tion thereof ; and whoever is sentenced to the State Farm for any offense 
other than drunkenness may be there held in custody for not more than 
two years. 

Indeterminate sentences to the State Farm, Massachusetts Reformatory 
or Reformatory for Women were established in order to permit greater 
opportunity for the rehabilitation of the inmates under the corrective in- 
fluences of those in charge. 

"There have been superimposed by the Legislature, upon its statutes 
requiring sentences for specifically defined terms of incarceration . . . the 
newer statutes relative to the indeterminate sentence. These several pro- 
visions are not contradictory and incompatible, but constitute a consistent 
frame of law." Plait v. Commonwealth, 256 Mass. 539, 543. 

Consequently, prior to St. 1951, c. 119, the court could sentence a vagrant 
to the House of Correction for not more than six months or to the State 
Farm or ^Massachusetts Reformatory for an indeterminate period. Under 
said c. 279, § 36, however, he could not be detained at the State Farm for 
more than two years. Statute 1951, c. 119, was enacted on March 9, 
1951, and became effective June 7, 1951. Section 2 of this act amended 
G. L. (Ter. Ed.) c. 272, § 66, by changing the penalty for the crime of 
vagrancy. The Legislature determined in its wisdom that on and after 
June 7, 1951, vagrants should not be punished by imprisonment in the 
State Farm or Massachusetts Reformatory but only by imprisonment in 
the House of Correction for not more than six months. 

In the case of Commonwealth v. Gardner, 11 Gray, 438, 445, the court 
said: "When the punishment is mitigated by a new act between the com- 
mission of the offence and the trial and sentence, the party may have the 
benefit of the mitigating law." 

But a diminution of the punishment, after the act done and before con- 
viction, does not prevent a judgment for the milder punishment. Com- 
monwealth V. McKenney, 14 Gray, 1, 3. 

In my opinion to you dated April 20, 1950, I stated that the language 
of the cases indicated that if sentence is imposed before the enactment 
providing a milder punishment, the sentence cannot be altered except by 
executive clemency. 

It thus results that the sentence to the State Farm imposed June 11, 
1951, on Complaint No. 25469, was clearly without warrant. On that date 
the only penalty which could be imposed was imprisonment for not more 
than six months in the House of Correction. 

The sentence on Complaint No. 25334 presents greater difficulty for 



14 P.D. 12. 

decision. It could be argued that the original sentence imposed on April 
23, 1951, was always in effect; that it was only the execution of the sen- 
tence that was held in abeyance ; and that when the suspension was lifted 
the sentence operated as of the time it was originally imposed. 

On the other hand, the cases hold that a "suspended sentence" is not a 
final judgment. 

In Mariano v. Judge of District Court, 243 Mass. 90, 92, the court said 
that sentences are to be executed forthwith unless suspended or stayed 
for reasons permitted by law. 

In Commomoealth v. Dascalakis, 246 Mass. 12, 19, the court said that 
a sentence is a final judgment except as to suspended sentences. 

In Cherry v. Cherry, 253 Mass. 172, 176, the court said that a sentence 
temporarily suspended is not a final judgment until it becomes operative. 

In Gabis, Petitioner, 240 Mass. 465, 466, the court said that a suspension 
of a sentence is not a final but a temporary disposition. 

In Commonwealth v. Weymouth, 2 Allen, 144, 147, the court said that 
until a sentence went into operation it was in effect the same as if never 
passed, and that so long as it remained unexecuted it was, in contemplation 
of law, in the breast of the court and subject to revision and alteration. 

In Commonwealth v. Hayes, 170 Mass. 16, 17, the court said: An ordinary 
sentence imports that it be carried into execution at once. The statute 
requires that the clerk, as soon as may be, make out and deliver to the 
proper officer the transcript of the conviction and sentence which author- 
izes the officer to execute the sentence. The term of imprisonment under 
a sentence begins on the day of the sentence. 

It would seem from the above cases that since Mullaney's term of im- 
prisonment could not begin until June 11, 1951, his sentence would begin 
on that day, and the order of the court affirming the April sentence was in 
effect the imposition of a new sentence. His sentence could not be exe- 
cuted until it was final, and the sentence could not be final until said June 
11, 1951. The sentences on both complaints must therefore be treated 
alike. 

I therefore answer your first question in the negative; and, in view 
thereof, no answer is required to your second question. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



State Farm ^— Commitment for being a Tramp — Indeterminate, Sentence. 

July 9, 1951. 
Hon. Maxwell B. Grossman, Commissioner of Correction. 

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

You state that on June 22, 1951, the Attleborough District Court found 
one Blake guilty of being a tramp and sentenced him to the State Farm; 
that the mittimus indicates the sentence was indeterminate; that G. L. 
(Ter. Ed.) c. 279, § 36, requires that a sentence to the State Farm shall be 
indeterminate and that any one committed there for any offense other 
than drunkenness may be held therein for not more than two years; that 
prior to St. 1951, c. 119, G. L. (Ter. Ed.) c. 272, § 64, punished a tramp by 



P.D. 12. 15 

imprisonment in the House of Correction for not less than six months nor 
more than two years, or imprisonment at the State Farm; and that said 
St. 1951, c. 119,' § 1, effective June 7, 1951, amended said c. 272, § 64, by 
changing the punishment to "imprisonment in the house of correction or 
at the state farm for not more than thirty daj'^s." 

You wish to know whether, in view of Piatt v. Commonwealth, 256 Mass. 
539, Blake may be held at the State F'arm for a period up to two years or 
must he be released after thirty days? 

As indicated above, prior to June 7, 1951, the court had the alternative 
of punishing a tramp by committing him to the House of Correction for a 
definite term (between six months and two years) or to the State Farm for 
an indefinite term. If sentenced to the latter institution he could be held 
there at the discretion of the authorities for a period up to two j^ears. By 
St. 1951, c. 119, however, the Legislature determined that tramps should 
not be held in custody for either punitive or corrective measures any longer 
than thirty days (whether in the House of Correction or the State Farm). 
The Legislature thus superimposes upon the aforesaid chapter 279, sec- 
tion 36 (which provides that sentences to State Farm shall be indetermin- 
ate), a requirement that when a tramp is committed to the State Farm 
his sentence shall be for a definite term of thirty days. 

If reasonabl}^ practicable a statute is to be explained in conjunction 
with other statutes to the end that there may be a consistent and harmoni- 
ous body of law. School Committee v. Gloucester, 324 Mass. 209. 

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. Smith v. Director 
of Civil Service, 324 Mass. 455. 

To the same effect is the language of Piatt v. Commonwealth, 256 Mass. 
539, at 543. 

Nothing said in Piatt v. Commonwealth, supra, however, is inconsistent 
mth the conclusion here reached. In that case a woman was found guilty 
of fornication. General Laws (Ter. Ed.) c. 272, § 18, penalized such an 
offense by imprisonment for not more than three months or by a fine. 
Said section makes no mention of the place of imprisonment, so G. L. 
(Ter. Ed.) c. 279, § 5, would apply. The latter section provides that a 
person convicted of a misdemeanor punishable by imprisonment may, 
unless otherwise expressly provided, be sentenced to a jail or the House of 
Correction. The prisoner could, therefore, have been sent to the House of 
Correction for not more than three months. 

Section 16 of said chapter 279 provides that a woman who could be 
punished by imprisonment in the House of Correction could also be sent 
to the Reformatory for Women; section 17 provides that in sentencing a 
woman to the Reformatory the court shall not prescribe the limit unless 
it is for more than five years; and section 18 provides that a woman sen- 
tenced to the Reformatory for a misdemeanor may be held therein for not 
more than two years. 

The court held that although the penalty for fornication was not more 
than three months' imprisonment, yet this was subject to the statute per- 
mitting imprisonment in the Reformatory. The statutes read together 
thus provided that a female convicted of fornication could be sent to the 
House of Correction for not more than three months or to the Reformatory, 
where she could be detained up to two years. 

The reasoning in that case does not affect the situation you describe. 



16 P.D. 12. 

I am therefore of the opinion that Blake's sentence was erroneously 
imposed because it was not in accord with St. 1951, c. 119, § 1; and that 
even if the sentence could be corrected, Blake legally cannot be detained 
longer than thirty days. 

Very truly 3'^ours, 

Francis E. Kelly, Attorney General. 



Division of Employ7nent Security — Employee - — Reinstatement — Seniority. 

Aug. 20, 1951. 
Mr. Antonio England, Director, Division of Employment Security. 

Dear Sir: — You have recently asked me for an opinion interpreting 
the effect of St. 1943, c. 535, under the circumstances hereinafter described. 

You state that a former employee of your division has requested rein- 
statement to employment therein; that he began his permanent service 
with the Commonwealth on June 15, 1933; that on January 22, 1937, he 
was first employed by your division as a permanent Junior Unemployment 
Compensation Analyst; that on January 1, 1942, when he was Employ- 
ment Service District Superintendent, he and others were transferred to 
the United States Employment Service in accordance with the terms of an 
Executive Order of the President of the United States; that on September 
15, 1944, he was transferred to the Veterans Administration under War 
Service Regulation IX, section 2a, with re-employment rights; that on 
November 16, 1946, when others were returned from the United States 
Employment Service to duty with your division, he did not return but 
remained with the Veterans Administration as Readjustment Allowance 
Agent. 

I am orally informed by the Division of Personnel and Standardization 
that said employee's transfer in September, 1944, to the Veterans Adminis- 
tration was in the nature of a polite demand; that he was considered by 
the Federal authorities as best suited for that position; and that said 
Veterans Administration was a "successor" agency within the meaning 
of St. 1943, c. 535, § 1, par. {d), because it took over some of the important 
functions of the United States Employment Service. 

You pose three questions : 

"1. Does this former employee have a right to reinstatement to employ- 
ment by this Division as Employment Service District Superintendent for 
the reasons advanced by him? 

"2. May the Director of this Division reinstate him as Employment 
Service District Superintendent by reason of his employment by this 
Division prior to January 1, 1942? 

"3. If he is so reinstated, is his service with the United States Employ- 
ment Service and the Veterans Administration to be included in deter- 
mining his seniority for purposes such as Civil Service status, salary in- 
crements, and retirement?" 

The pertinent provisions of St. 1943, c. 535, follow: 
The preamble declares that in part the purpose of the act is to protect 
the rights of certain persons in the classified civil service of the United 



P.D. 12. 17 

States and the Commonwealth of Massachusetts during the existing state 
of war, whose employment in the service of the Division of Employment 
Security was terminated by reason of the aforesaid Executive Order of 
the President of the United States, and to facilitate their reinstatement in 
their former positions in the official service of the Commonwealth. 

Section 1 (a) provides that all permanent employees (except as otherwise 
provided in said section) in the Division of Employment Security whose 
employment was terminated bj^ reason of the aforesaid Presidential Execu- 
tive Order and who were inducted into the United States Employment 
Service shall be reinstated in the Division of Employment Security, and 
said reinstatement shall be in accordance with civil service and shall confer 
upon said employees the full promotional privileges and seniority rights 
which would have accrued to them under civil ser\ace if they had remained 
in the employ of said Division of Employment Security. 

Paragraph (d) of said section provides that paragraph (a) shall apply to 
employees (1) who have served in the United States Employment Service 
or its successor continuously since their induction under the aforesaid 
Presidential Order; or (2) whose services have been terminated without 
fault or delinquency on their part; or (3) who have terminated their serv- 
ices with the United States Employment Service or its successor for the 
express purpose of accepting an offer of reinstatement or re-employment 
in the Division of Employment Security; or (4) who were ordered or 
transferred without their consent to some other position in the United 
States civil service from the United States Employment Service or its 
successor. 

Paragraph (c) of said section provides that all persons referred to in 
paragraphs (a) and (d) shall be entitled to all rights and privileges provided 
by St. 1941, c. 708, which preserves to employees of the Commonwealth 
who enter the military service all their civil service rights and privileges 
during their absence. 

It is obvious that St. 1943, c. 535, is remedial in its nature and purpose 
and should therefore be construed liberally. See Ring v. Wobu7'7i, 311 
Mass. 679, 682. Duff v. Zojiis et als., Mass.* Adv. Sh. (1951) 571, 575. 

Literally speaking, the Veterans Administration was not a successor to 
the United States Employment Service; but if we view the matter broadly 
and liberally, said Veterans Administration could be conceived as a suc- 
cessor to the agency which it relieved of certain important functions. The 
employee in question would then come within the category described in 
paragraph (d) (1) above. 

Furthermore, said employee falls within the category described in para- 
graph (d) (2) above, because when he was transferred from the United 
States Employment Service to the Veterans Administration his services 
were then being terminated "without fault or delinquency" on his part. 

It could also be said that he falls within the category described in para- 
graph (d) (4) above. When the Federal, authorities requested his transfer 
to the Veterans Administration because of his capabilities, such a request 
during a state of war is in the nature of a demand. 

Consequently, for any one of the aforesaid three reasons said employee 
is entitled to be reinstated under the provisions of section 1, paragraph 
(a). This conclusion is fortified by paragraph (e) of section 1 which pro- 
tects those inducted from the Division of Employment Security by the 
Presidential Order in the same manner as those employees of the Common- 
wealth who entered the miUtary service of the Nation. (See opinion of the 



18 P.D. 12. 

Attorney General to the Commissioner of Admin'stration dated April 27, 
1950, wherein St. 1941, c. 708, § 24, is discussed as restoring to a returning 
veteran all his seniority rights interrupted by his military or naval service 
and also salary increments which would have accrued if he had not been 
absent.) 

I therefore answer each of your three questions in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Maritime Academy — Gratit of Right of Way to Municipality. 

Aug. 24, 1951. 
Hon. Thomas H. Buckley, Commissioner of Administration. 

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

You state that St. 1950, c. 635, authorized the Commissioners of the 
Massachusetts Maritime Academy to transfer certain land owned by the 
Commonwealth and occupied by the Academy to the town of Barnstable 
for municipal purposes; that this tract adjoined a public parking lot; that 
the town utilized the tract conveyed to it to enlarge the parking area and 
for the construction thereon of a comfort station; that because there is 
no room to build a separate walkway, users of the comfort station are 
obliged to traverse the same path as motor vehicles in order to reach Main 
Street to the north, and their safety is thus endangered; and that this 
hazard could be eliminated by building a walkway from the comfort station 
to South Street, but to reach South Street the walkway would have to 
cross part of the remaining land occupied by the Academy. 

You wish to know whether the Commissioners of the Massachusetts 
Maritime Academy may grant the town of Barnstable permission to con- 
struct a walkway on said land for said purpose. 

The pertinent statutory provisions follow: 

General Laws (Ter. Fd.) c. 15, § 22, provides for the creation of a Board 
of Commissioners of the Massachusetts Maritime Academy serving in the 
Department of Education. 

General Laws (Ter. Ed.) c. 74, § 49, provides that said board shall pro- 
vide and maintain a nautical school on board a proper vessel or at such 
other location as the commissioners shall designate and to make all regu- 
lations necessary for its management. 

General Laws (Ter. Ed.) c. Ill, § 33, provides that in any municipality 
of over ten thousand population, if in the opinion of the board of health 
public necessity requires it, there shall be established and maintained 
therein one or more sanitary stations. 

General Laws CTer. Ed.) c. 30, § 44A, provides: 

"A commissioner or head of a state department having control of any 
land of the commonwealth may, in the name of the commonwealth and 
subject to the approval of the governor and council, sell and convey to 
any county, city or town, or transfer to the control of another state de- 
partment, so much of such land as may be necessarj'^ for the laying out or 
relocation of any highway." 



P.D. 12. 19 

The Commonwealth had the power to authorize the aforesaid transfer 
to the town of Barnstable for a public purpose; and it is manifest the town 
has used said land for such purpose. See Wright v. Walcott, 238 Mass. 
432, 435. Iligginson v. Treasurer, etc. of Boston, 212 Mass. 583, 585. 

The creation of the requested right of way across other land occupied 
by the Academy would also be for a public purpose in that it would elimi- 
nate a traffic hazard; but the grant of an easement stands on the same 
footing as the grant of a fee. Semhle Wright v. Walcott, 238 Mass. 432, at 
438. 

If legislative authority was required (St. 1950, c. 635) to give in fee 
Academy land to the town for a public purpose, it is also required to give 
the townspeople the right to use Academy land as a walkway. 

General authority under some circumstances has already been given 
by the Legislature to a commissioner or head of a State department to 
convej'' land in his control (see G. L. [Ter. Ed.] c. 30, § 44A), but not in the 
circumstances described by you. It would therefore appear that specific 
legislative authority would be required for the purpose. . 

Consequently, I answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Firemen — Annuities to Dependents — Foreign Divorce Decree. 

Aug. 24, 1951. 
Department of Mental Health. 

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

You state that the late Frederick H. Marston died on September 1, 
1950, in the performance of his duty as a fireman in the employ of the city 
of Gloucester, Massachusetts; that Marston was employed as such fire- 
man for many years; that in 1928 Marston's wife, Viola, was committed 
to the Danvers State Hospital as an insane person and in 1940 transferred 
to the Grafton State Hospital, where she has since been confined; that in 

1945, while Marston was in the service, he met one Thelma (whose last 
name you do not know) who lived in the South; that on or about May 25, 

1946, he secured a six months' leave of absence from the Gloucester fire 
department and went to Reno, Nevada, where he secured employment and 
on August 3, 1946, he there filed a petition for divorce against his wife, 
Viola, on the ground of insanity (not a cause for divorce in this Common- 
wealth); that Mola's sister. Bertha Mack, was Viola's legal guardian; 
that service of the divorce citation was made upon the libellee but neither 
she nor her legal guardian submitted to the jurisdiction of the Nevada 
court, although said court appointed an attorney in Nevada as a guardian 
ad litem; that Marston was granted a divorce in said Reno on October 
24, 1946; that on December 1, 1946, he returned to Gloucester and was 
reinstated in his position as fireman; that in said December, 1946, he went 
to the home of said Thelma in the South and there married her; that under 
the provisions of G. L. (Ter. Ed.) c. 32, § 89, Marston's legal widow is 
entitled to an annuity not exceeding one thousand dollars per year; and 



20 P.D. 12. 

that there is due the Commonwealth for the care of said Viola Marston 
a sum in excess of eight thousand dollars. 
You wish to know: 

1. Must Marston's Nevada divorce be recognized in this Common- 
wealth? 

2. Is Viola Marston the legal widow entitled to said annuity? 
U. S. Const., art. IV, § 1, provides: 

"Full faith and credit shall be given in each state to the public acts, 
records, and judicial proceedings of every other state. And the congress 
may by general laws prescribe the manner in which such acts, records and 
proceedings shall be proved, and the effect thereof." 

The Act of May 26, 1790, 1 Stat. 122, as amended, R. S. § 905, 28 
U. S. C. § 687, provides in part: 

"... And the said records and judicial proceedings . . . shall have 
such faith and credit given to them in every other court within the United 
States as they have by law or usage in the courts of the state from which 
they are taken." 

Although said "full faith and credit clause" has had a stormy and un- 
certain evolution ^vith respect to divorce decrees of sister States, it reached 
the zenith of definitiveness in the cases of Sherrer v. Sherrer, 334 U. S. 
343, and Coe v. Coe, 334 U. S. 378. Those cases decided that the require- 
ments of full faith and credit bar a defendant from attacking collaterally 
a divorce on jurisdictional grounds in the courts of a sister State where 
there has been participation by the defendant in the divorce proceedings, 
where the defendant has been accorded full opportunity to contest the 
jurisdictional issues, and where the decree is not susceptible to such col- 
lateral attack in the courts of the State which rendered the decree. 

It is obvious that the appointment b}^ the Nevada court of a guardian 
ad litem for a party cannot be the equivalent of that party's submission to 
the jurisdiction of said Nevada court. A court cannot give itself jurisdic- 
tion over a person beyond its boundaries merely by appointing a guardian 
ad litem for him. 

The court in the aforesaid cases specifically stated, however, that the 
jurisdiction of a court to enter a valid decree of divorce was dependent 
upon the libellant's domicil in that State. Sherrer v. Sherrer, 334 U. S. 
343, at 349. See also Williams v. North Carolina, 325 U. S. 226, at 229. 

The domicil of one spouse within a State, though not necessarily the 
matrimonial domicil, gives power to that State to dissolve a marriage 
wheresoever contracted. Williams v. North Carolina, 317 U. S. 287. 
Davis V. Davis, 305 U. S. 32, 41. 

Consequently, a divorce granted by Nevada on a finding that one spouse 
was domiciled in Nevada must be respected in another State in which 
Nevada's finding of domicil is not disputed, although the other spouse had 
neither appeared nor been served with process in Nevada. Williams v. 
North Carolina, 317 U. S. 287. Williams v. North Carolina, 325 U. S. 
226, 227. 

And a judgment or decree in one State is conclusive upon the merits in 
every other State only if the court of the first State had power to pass on 
the merits, that is, had jurisdiction to render a judgment or decree. Ger~ 



P.D. 12. 21 

man Savings and Loan Soc. v. Dormitzer, 192 U. S. 125, 128. Williams v. 
North Carolina, 325 U. S. 226, 229. 

"But simply because the Nevada court found that it had power to 
award a divorce decree cannot . . . foreclose re-examination by another 
State" (unless, of course, the libellee appeared personally or by counsel). 
Williams v. North Carolina, 325 U. S. 226, 234. 

The court also said in the later Williams case, on page 236 (325 U. S.) — 

"If the . . . petitioners had domicils in North Carolina and went to 
Nevada 'simply and solely for the purpose of obtaining' divorces, intending 
to return to North Carolina . . . they never lost their North Carolina 
domicils nor acquired new domicils in Nevada." 

And on page 239 — 

"North Carolina was entitled to find, as she did, that they did not 
acquire domicils in Nevada and that the Nevada court was therefore with- 
out power to liberate the petitioners from amenabihty to the laws of 
North Carolina governing domestic relations." 

The question whether Reno had jurisdiction to grant Marston a decree 
of divorce can therefore be determined in this Commonwealth. This 
right is also implicit in G. L. (Ter. Ed.) c. 208, § 39, which provides: 

"A divorce decreed in another jurisdiction according to the laws thereof 
by a court having jurisdiction of the cause and of both the parties shall 
be valid and effectual in this commonwealth; but if an inhabitant of this 
commonwealth goes into another jurisdiction to obtain a divorce for a 
cause occurring here while the parties resided here, or for a cause which 
would not authorize a divorce by the laws of this commonwealth, a divorce 
so obtained shall be of no force or effect in this commonwealth." 

In ascertaining whether Marston gave Reno jurisdiction, we must 
determine whether on the undisputed facts Marston did abandon his 
domicil in INIassachusetts and acquire one in Reno. If he did, his divorce 
is valid. If he did not, his divorce is a nulUty. 

The ascertainment of domicil is mainly a question of fact. Levanosky 
v. Levanosky , 311 Mass. 638, 642. Hopkins v. Commissioner of Corpora- 
tions and Taxation, 320 Mass. 168, 173. 

It is a general rule that the burden of shoAving a change of domicil is 
upon the party asserting the change. Commonwealth v. Bogigian, 265 
Mass. 531, 538. Commonwealth v. Davis, 284 Mass. 41, 49. Texas v. 
Florida, 306 U. S. 398, 427. 

Here the burden would be on Thelma Marston, who seeks to establish 
domicil in Nevada as the basis for jurisdiction to grant a divorce. 

A domicil once estabhshed is presumed to continue until a new one is 
acquired. Commonwealth v. Bogigian, 265 Mass. 531, 538. 

To effect a change there must be "compelling evidence." Common- 
wealth V. Davis, 284 Mass. 41, 49. 

A new domicil "is acquired onlj^ by a clear and honest purpose to change, 
which is carried into actual execution." Thayer v. Boston, 124 Mass. 132, 
147. 

TVTien one leaves a spouse and goes into another State and there applies 
for a divorce soon after he is able to do so, the inference is warranted that 



I 



22 P.D. 12. 

he goes there for that purpose. Lyon v. Lyon, 2 Gray, 367. Chase v. Chase, 
6 Gray, 157, 162. 

In the case of Dickinson v. Dickinson, 167 Mass. 474, 477, the court 
said: 

"In Smith v. Smith, 13 Gray, 209, the presumption arising from such 
a fact is said by Chief Justice Shaw to be 'violent, if not conclusive.'" 

The fact that insanity is not a cause for divorce in this Commonwealth, 
but is in Nevada, is strongly indicative of the reason why Marston went 
to Nevada. 

The most telling fact fatal to Marston's honest intention to abandon his 
domicil in Massachusetts and acquire a new one in Reno or anywhere else 
is his request for a leave of absence. This is irrefutable evidence of an 
intention, not to uproot his home here, but to return to it after he accom- 
plished the purpose for which the trip to Nevada was made. 

It is of course a pity that Thelma Marston may have in good faith be- 
lieved she was lawfully married to Marston during the four years she lived 
with him from December, 1946, till September, 1950, when he died. 

I am constrained, however, to answer your first question in the negative 
and your second question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Eminent Domain — Taking of Land of Fire District. 

Aug. 24, 1951. 
Hon. William F. Callahan, Commissioner of Public Works. 

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

You state that in accordance with the proAasions of St. 1950, c. 685, 
the Commonwealth took by eminent domain 840 square feet of land belong- 
ing to Dartmouth Fire District No. 3. You wish to know whether under 
the provisions of section 7 of said act the Commonwealth is obliged to pay 
damages for said taking. 

St. 1950, c. 685, provides for an accelerated highway program and ac- 
cording to section 7 — 

"The department and the commission may, on behalf of the common- 
wealth, take by eminent domain under chapter seventy-nine of the Gen- 
eral Laws, or acquire by purchase or otherwise, such public or private 
lands, cemeteries, public parks or reservations, or parts thereof or rights 
therein, and public ways as it may deem necessary for carrying out the 
provisions of this act, . . . provided, that no damages shall be paid for 
public lands or parks, parkways or reservations so taken." 

Presumably the land taken was not part of a park, parkway or reserva- 
tion. If, however, lands owned by a fire district can be classified as public 
land, then the Commonwealth is not obligated to pay damages for the 
taking thereof. 



P.D. 12. 23 

The term "public land" usually signifies such government or State land 
as is open to public sale or disposition under General Laws, although the 
term is used in varying senses depending largely upon the special circum- 
stances or the legislation in which, or in respect to which, it is used. Lar- 
kin V. Paugh, 276 U. S. 431, 438. Kindred v. Union Pacific R. R. Co., 
225 U. S. 582, 596. Payne v. Central Pacific P. P. Co., 255 U. S. 228, 
237, 238. 

In the aforesaid section 7 the Legislature undoubtedly referred to land 
owned by the Commonwealth or any of its governmental creatures. Does 
a fire district fall within this category? 

In Prout V. Pittsfield Fire District, 154 Mass. 450, the court said: 

"The defendant is a fire district, duly organized and established under 
the general laws of the Commonwealth. . . . By express provision of 
statute, fire districts may raise money for the purchase of engines and 
other articles necessary for the extinguishment of fires, for the purchase 
of land, for the erection and repairs of necessary buildings, for the erection 
and maintenance of street lamps within their limits, and for other incidental 
expenses of the fire department. . . . 

"The defendant as a fire district is a quasi corporation, with certain 
limited corporate powers, which are to be measured by its other powers, 
its privileges and duties. Among its inherent corporate powers is the power 
to sue and be sued." 

In President and Trustees of Williams College v. Williamstown, 219 Mass. 
46, certain charitable institutions were exempt from taxation as to real 
estate owned and occupied by them for the purposes for which they were 
incorporated. The question to be decided was whether said real estate is 
exempt from the kind of taxation imposed for a fire district. The court 
said that such exemption applies only to taxes imposed for the usual public 
purposes and not to special assessments for particular benefits. 

"A fire district is a territorial subdivision of the State, bounded and 
organized under the authority of the Legislature for the governmental 
purpose of providing protection against fire within its limits, maintaining 
street lights and other subsidiary matters. Although composed of a part 
of one or more towns, it is in substance a quasi municipal corporation of 
definitely restricted powers ... It may 'raise money by taxation' for 
its legitimate uses . . . 

"The kind of taxation which a fire district is authorized to levy belongs 
in its essential characteristics to the general burden for the support of 
government rather than to a special assessment for peculiar benefits." 

From these cases we must conclude that a fire district is an integral part 
of the governmental structure of the State, and land owned by it is public 
land. 
I therefore answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



24 P.D. 12. 

Civil Service — Leave of Absence — Resignation. 

Aug. 28, 1951. 
Department of Conservation. 

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

You state that a junior clerk and stenographer in your department on 
October 13, 1950, was granted a leave of absence for three months for 
reasons of health ; that you wrote her several times (the last time by regis- 
tered mail on March 28, 1951) requesting her resignation or a reply; that 
she has not rephed; and that you are handicapped in being compelled to 
employ temporary clerks in her place. 

You wish to know whether said position of junior clerk and stenographer 
is now vacant so that it may be filled by a permanent appointment. 

The peitinent statutory provisions follow: 

General Laws (Ter. Ed.) c. 31, § 1, defines "resignation" as a permanent 
voluntary separation from the service; and "discharge" as the permanent 
involuntary separation from the service because of (among other things) 
neglect or refusal to act. 

Section 33 of said act provides that at the request of any appointing 
power, the commission or director shall (and may at any time without 
such request) inquire into the conduct of any employee and may recom- 
mend his removal. 

Section 43 provides that an employee shall not be discharged except for 
just cause and shall be given a hearing thereon in the manner provided 
by said section 43. 

Section 46E provides that an appointing authority may grant a leave 
of absence for a period not to exceed three months (but for a longer period 
with the director's permission or in case of illness). 

Section 461 provides that whenever a person is separated from the 
service for any reason other than discharge or resignation, his name shall 
be placed on the re-employment list, provided that if a person is separated 
because of resignation on account of illness he must request his name to 
be placed on said list. 

Civil Service Rule No. 29, paragraph 4, provides that in case any of 
the persons certified for employment withdraw from the service without 
good cause, the names and registry numbers of such persons shall be re- 
turned to the director with a statement of the facts ; and their names shall 
be taken from the register unless a satisfactory explanation of the failure 
or refusal to work is given. 

If there is no vacancy now, one could be created by a "discharge" (be- 
cause of neglect or refusal to act) in pursuance of the provisions of sections 
33 and 43. 

I do not, however, think that such procedure is necessary. Said employee 
has virtually resigned within the meaning of the statute. One who over- 
stays his leave of absence for seven months and ignores his employer's 
written inquiries as to the employee's intentions, has created a "voluntary 
permanent separation from the service." The resignation does not have 
to be in writing. A separation from the service may be determined by an 
oral or written declaration or by no declaration at all. It may be evidenced 



I 



P.D. 12. 25 

by a failure to return to work after the leave of absence has expired. This 
is implicit in sections 46E and 461 and Civil Service Rule No. 29, para- 
graph 4. 

This conclusion is confirmed by an examination of several decided cases. 

In Dunn v. Commissioner of Civil Service, 279 Mass. 504, at page 509, 
the court said: 

"It has been held that absence from duty due to sickness may constitute 
the separation from the public service of one protected by the civil service 
law. . . . The factors present in the case at bar disclose sickness . . . 
rendering impossible the performance of the duties of a patrolman. It is 
certain that the petitioner was in truth and fact doing nothing as patrol- 
man during the period of his absence. . . . For every practical purpose, 
so far as concerned preservation of order and protection of public safety, 
he was out of the department. There was a complete withdrawal and 
cessation from pubhc work . . . We are of opinion that the facts here 
disclosed constituted separation of the petitioner from the service, ..." 

In Ferrante v. Higgiston, 296 Mass. 208, the respondent had for several 
years held the office of plumbing inspector. On April 1, 1935, he was 
given "an indefinite leave of absence not to exceed the limitation of the 
law governing the same." On February 1, 1936, he undertook to perform 
the duties of said office. The question was whether a vacancy had been 
created. If so, the petitioner was entitled to the office. The court held 
that if the leave of absence granted was taken to limit the leave to a period 
of six months (the period then permitted), Higgiston did not resume work 
within that time and therefore became separated from the service. 

Consequently, I answer your question in the affirmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Foreign Insurance Company — Doing Business in Massachusetts — Licenses. 

Sept. 7, 1951. 

Hon. Dennis E. Sullivan, Commissioner of Insurance. 

Dear Sir: — The Amalgamated Life Insurance Company, Inc., a 
New York non-profit corporation, hereinafter called the Company, has 
submitted to you a description of a proposed method of operation, and 
has requested that you rule on the question whether such operation would 
require the Company to be licensed by the Commonwealth as a foreign 
insurance company admitted and authorized to do business in Massachu- 
setts. You have requested my opinion. 

I. Summary of the Proposed Operation. 

In order fairl}^ to present the problem, the proposed operation can be 
briefly summarized as to its essentials as follows: 

The Amalgamated Clothing Workers of America, hereinafter called the 
Union, is an international union, with headquarters in New York. It 
covers various branches of the clothing industry. 



26 P.D. 12. 

The Union negotiates collective bargaining agreements for its members 
with their employers. Such agreements have in the past provided, and 
will in the future provide, that the employers will pay certain amounts of 
money, computed basically as specific percentages of paj'rolls, to the 
trustees of a certain trust fund or trust funds, depending on the branch or 
branches of the clothing industry represented among the employees in 
each instance. 

The trusts are New York trusts, the funds are held in New York, and 
the trustees thereof have their offices in New York. The common purpose 
of these trusts, though each is maintained as a separate fund, is to purchase 
various forms of group insurance on, and annuities for the benefit of, 
eligible classes of employees of the contributing employers. By a limita- 
tion contained in its charter, eighty-five per cent or more of the income of 
the Company shall consist of premiums paid to it by said trusts. 

So far as possible, both the Company and the trusts have confined and 
will confine all their actions to the State of New York. It is not necessary 
here to enumerate in detail the acts of each performed in New York and 
nowhere else. 

The Company has not heretofore issued such contracts of group insur- 
ance on, or annuities for the benefit of, eligible members of the Union 
resident in Massachusetts. The proposed operation is the issuance of 
such contracts and annuities. 

II. Actions in Massachusetts Prior to the Insurance Contracts. 

While it may be true that the Union negotiates on industry-wide basis 
master collective bargaining agreements with associations of employers, 
it may be that certain individual agreements with Massachusetts em- 
ployers will be made within the Commonwealth of Massachusetts. How- 
ever, even if the entire negotiation and agreement process takes place in 
Massachusetts, it is clear that the parties thereto, the employers and the 
Union, are acting for their own benefit, and not for the Company. 

The employer certainly is in no way acting as an agent of the Company 
in the negotiation of the contract. Even after the agreement is made, the 
employer's contributions are sent, not to the Company, but to the trustees 
of a particular trust fund or trust funds in New York. Though such re- 
mittances are intended to become, and in fact later are traceable into, 
insurance premiums, it is clear that in transit from employers in Massa- 
chusetts to trustees in New York they are not yet such. The employer 
is merely performing his part of a collective bargaining agi'eement by for- 
warding, as a debtor, his own money or, better, its credit equivalent, to 
the trustees. See United States v. Johfiston, 268 U. S. 220. 

Nor is the Union in any sense the agent of the Companj'. It is obvious 
that the Union is the agent of the employees and not of the Company. 

A collateral point, though one necessarily involved in any realistic dis- 
cussion of the problem, may be taken up here. It might be thought, upon 
first reading thereof, that the follo^\^ng statute would apply to the acts 
of the employer or the Union, or both, done in Massachusetts. 

General Laws (Ter. Ed.) c. 175, § 160, provides: — 

"Whoever, for a person other than himself, acts or aids in any manner 
in the negotiation, continuation, or renewal of a policy of insurance or an 
annuity or pure endowment contract with a foreign company not lawfully 



P.D. 12. 27 

admitted to issue such policies or contracts in this commonwealth shall 
... be punished by a fine ..." 

The act forbidden is acting or aiding in the negotiation, continuation 
or renewal of certain types of contracts with a foreign company. A con- 
tract of insurance is defined by the Legislature in chapter 175, section 2, 
as follows : — 

"A contract of insurance is an agreement by which one party for a con- 
sideration promises to pay money or its equivalent, or to do an act valu- 
able to the insured, upon the destruction, loss or injury of something in 
which the other party has an interest." 

The acts of the employer are clearly in no way construable as perform- 
ing any function whatever involved in "negotiation, continuation or re- 
newal" of any contract of insurance, or of any annuity or endowment 
contract. As will be seen, such negotiation, continuation or renewal of 
such contracts is done wholly independently of the employer. His act is 
merely to discharge a debt which he contractually assumed for the mutual 
economic benefit of himself and his employees. 

With respect to the action of the Union the Legislature has further 
expressly provided that: 

"... Trade unions and other associations of wage workers whose 
principal objects are to deal with the relations between employers and 
employees relative to wages, hours of labor and other conditions of em- 
plovment, . . . shall not be subject to this chapter, except as hereinafter 
provided ..." G. L. (Ter. Ed.) c. 175, § 29. 

(No further provisions of the chapter have any effect here material.) 

These facts are essentially different from those necessarily associated 
with the usual operation of a foreign insurance company seeking to write 
insurance on lives or interests in Massachusetts. Such companies operate 
to secure insurance business in Massachusetts by activity within the Com- 
monwealth prior to the making of the contract. The proposed procedure 
distinguishes this case from the usual situation as exemplified in the facts 
of Commonwealth v. Nutting, 175 Mass. 154, and Nutting v. Massachusetts, 
183 U. S. 553. 

IIL Acts of the Trustees. 

Even when the remittance is received in New York by the trustees, 
it is not legally or equitablj^ the property of the Company, nor are the 
trustees agents of the Company for the receiving, holding or paying over 
of such funds. 

Under the various declarations of trust, the trustees are, of course, inde- 
pendent of any control by the Company. Well-established and fundamen- 
tal principles of law applicable to fiduciaries guarantee their faithful per- 
formance of the trust purposes. With respect to certain of the funds, 
there are the additional guarantees of the independence of the trustees 
found in applicable provisions of the so-called Taft-Hartley Amendments 
to the National Labor Relations Act, which require equal employer and 
union representation among the trustees. Large segments, if not practi- 



28 P.D. 12. 

cally all, of the clothing industry are engaged in business affecting inter- 
state commerce, and the funds established after the Taft-Hartley Amend- 
ment deadline, to be of any general benefit, would have to conform thereto. 
Unless there is such compliance, payments by the employers to, and re- 
ceipt of the same by, the trustees would be criminal acts. 

The amendments here material are found in the Act of June 23, 1947, 
c. 120, Title III, § 302, 61 Stat. 157; U. S. C. Title 29, § 186 (a), (6) and 
(c) (5). 

The importance of the foregoing Ues in the fact that there is insured a 
free and untrammeled choice on the part of the trustees as to the specific 
use to which the insurance and annuity funds contributed by employers 
shall be put. There is no compulsion on the trustees to deal with the Com- 
pany. There thus intervenes between the prior acts of negotiation and 
agreement in, and remittance from, Massachusetts and the payment of 
premiums to an insurance company (not necessarily the Company) an 
independent judgment of the trustees exercised in the making of the in- 
surance contract. 

This intervening free act of the trustees necessarily breaks any chain of 
causation, direct or indirect, or other form of agency sought to be charted 
between the Company and the prior Massachusetts transactions. 

It may be well to note that some of the trust funds which may be in- 
volved in the proposed operation were established before the Taft-Hartley 
Amendment deadline. 

Even with respect to such previously existing trust funds the same point 
of the independent intervention of the trustees is made, however. In the 
detailed prospectus of the operation it is indicated that the trustees of 
such funds operate under written declarations of trust which assert fidu- 
ciary obligations to the ehgible employees, and may enter into or change 
substantially the terms of insurance policies only with the consent of a 
committee called the "Advisory Committee" whose members are repre- 
sentatives of the contributing employers. It is, therefore, a fair conclusion 
that such funds also operate so as to interpose an independent judgment 
in the choice of an insurance company. 

IV. The Contracts of Insurance. 

By assumption, the trustees will elect to place appropriate insurance or 
annuity contracts for the benefit of eligible Massachusetts employees with 
the Company. The negotiation of these contracts takes place in New 
York and is subject to its laws. 

All policies to be issued by the Company under such contracts will be 
issued in New York to the trustees of the various funds. Such policies 
will be in the form of a master policy, covering such employees as are 
eligible under the standards set forth therein. The trustees are the " poHcy- 
holders." 

Such form of policy is in no manner in conflict with the public policy 
of the Commonwealth, which expressly recognizes similar types of policies 
issued to trustees as policyholders for the benefit of employees who are 
members of unions, to be paid for out of funds contributed by employers. 
Group life insurance policies of this type are expressly provided for under 
G. L. (Ter. Ed.) c. 175, § 133. Similar provisions cover group accident, 
health, medical and hospital insurance, G. L. (Ter. Ed.) c. 175, § 110, and 
group annuities, G. L. (Ter. Ed.) c. 175, § 132A. 



P.D. 12. 29 

V. Acts of the Company subsequent to the Insurance Contracts. 

In the analysis thus far made of the proposed procedure, it can be said 
that up to this point there is no activity of the Company in Massachusetts 
prior to the insurance contract, and that the insurance contract itself does 
not offend the pubhc policy of the Commonwealth. Some further actions 
contemplated in the procedure subsequent to the insuring remain to be 
discussed. 

In addition to the master policy, the Company will furnish to the trus- 
tees, for delivery to each employee who is qualified and therefore insured 
under the master policy, an individual certificate setting forth a statement 
as to the insurance protection to which he is entitled. The trustees will 
distribute these certificates by mailing from New York either to the individ- 
ual employees or to their local Union representatives for distribution to 
them. The insurance contract, however, is effected by the issuance of the 
master policy to the trustees and not by these certificates. The individual 
certificates merely evidence to the individual employee the placing of the 
insurance. 

The Massachusetts statute requiring foreign companies to act only 
through resident agents in insuring Massachusetts lives and interests, 
properly read, is applicable only to contracts of insurance made in the 
Commonwealth and acts done in connection therewith, and thus does not 
apply in the case of contracts made outside the Commonwealth, even 
though they are evidenced by certificates caused or permitted to be de- 
livered in Massachusetts. This statute, G. L. (Ter. Ed.) c. 175, § 157, 
provides expresslj' that it shall apply only to acts done and contracts made 
within the Commonwealth. 

Claims for benefits by individuals insured will necessarily originate in 
]\Iassachusetts. The procedure provides that the Company will furnish 
by mail from New York forms for proof of claim to be filled out in Massa- 
chusetts and returned to New York for processing there. In certain cases, 
principally those of disability claims, the Company will investigate claims 
by engaging investigators on a per case basis as independent contractors. 
The independently contracting investigators will, of course, be acting for, 
but will not be the agents of, the Company in Massachusetts. The Com- 
pany will mail benefit checks from New York to employees entitled thereto. 
These acts, of course, necessarily and inseparably flow from the very fact 
that the insurance has been written. 

VI. The Question. 

The w^hole problem can now be resolved into a single simple proposition. 
Since the procedure of the Company, as has been seen, involves an irre- 
ducible minimum of acts done outside New York, such acts only as are 
absolutely essential to the basic fact that a New York company writes 
insurance on lives and interests in Massachusetts, the entire problem is 
presented adequately in a single question, namely, — does the Company 
become subject to Massachusetts licensing simply because it writes in- 
surance in New York on lives and interests in ]\Iassachusetts? 

VII. Opinion. 

General Laws (Ter. Ed.) c. 175, § 3, provides: 

"No company shall make a contract of insurance upon or relative to 
any property or interests or lives in the commonwealth, or with any resi- 



30 P.D. 12. 

dent thereof, and no person shall negotiate, solicit, or in any manner aid 
in the transaction of such insurance or of its continuance or renewal, 
except as authorized by this chapter ..." 

Chapter 175 further provides in section 150 that foreign companies upon 
complying with certain conditions, may be admitted to transact insurance 
business in the Commonwealth of Massachusetts, and section 151 provides 
that no foreign company shall be admitted and authorized to do business 
until the conditions therein set forth are met and it has obtained a license 
from the Commissioner of Insurance. The prohibiting language contained 
in the statute quoted above is certainly broad enough to include the Com- 
pany, if construed to apply in a broad, unqualified interpretation. Whether 
the Commonwealth has the power, under the due process clause of the 
Fourteenth Amendment of the Federal Constitution, to require the Com- 
pany to be licensed presents a question not yet expressly decided by the 
Supreme Court. 

Earlier cases, represented by Allgeyer v. Louisiana, 165 U. S. 578, and 
Minnesota Commercial Men's Assoc, v. Benn, 261 U. S. 140, among others, 
would indicate that the State had no such power. (Some twentj^-one 
States have already ruled that the Company need not be licensed therein, 
perhaps relying largely upon such earlier cases.) 

However, later cases, represented by Hoopeston Canning Co. v. Cullen, 
318 U. S. 313, and International Shoe Co. v. Washington, 326 U. S. 310, 
may indicate that the power exists. The most recent of the cases, Travelers 
Health Assoc, v. Virginia, 339 U. S. 643, follov/s the modern trend. 

It is perhaps significant, however, that the Supreme Court has never 
taken the obvious expedient, particularly in the last cited case, of ruling 
categorically that the limitations of due process do not prevent a State 
from licensing a foreign corporation whenever the foreign corporation 
insures lives or interests in the State. On the other hand, it might well be 
thought that the Supreme Court has merely refrained from deciding a 
constitutional question in advance of the necessity for its decision. See 
Federation of Labor v. McAdory, 325 U. S. 450, 461. 

However, if in fact the Commonwealth does not require that the Com- 
pany submit to a licensing requirement, then the question whether it has 
the power to do so is academic. Do the laws of Massachusetts, properly 
construed, require licensing of the Company? Authoritative statements 
on the point are few, but, it appears, sufficient for an answer to this 
question. 

General Laws (Ter. Ed.) c. 175, § 3, the general prohibiting statute here 
involved, is set out above at the beginning of this topic. An earlier form 
of that statute was even more inclusive than the statute in its present 
form. Statute 1894, c. 522, § 3, from which this section derives, after 
language similar to that of the present statute, concluded: 

"All contracts of insurance on property, lives or interests in this Com- 
monwealth shall be deemed to be made therein." 

The Supreme Judicial Court had occasion to refer directly to that 
earlier form of the statute in two cases, in both of which the court limited 
its application. 

In Johnson v. Mutual Life Insurance Company of New York, 180 Mass. 
407, Chief Justice Holmes said (p. 409): 



P.D. 12. 31 

"The most natural interpretation of the seeming attempt in § 3 to 
extend the operation of the statute in certain cases beyond the hraits of 
the State would be to take that attempt as confined to Massachusetts 
corporations." 

In Stone v. Old Colony St. R. Co., 212 Mass. 459, the court in a case 
involving a foreign corporation, citing the Johnson case, said (p. 464) : 

"... the concluding sentence in § 3 of c. 522 of the St. of 1894, that 
'all contracts of insurance on property, lives or interests in this Common- 
wealth shall be deemed to be made therein,' should not be construed by 
implication as intended to regulate or prohibit contracts of insurance 
made in other jurisdictions." 

The comment of Chief Justice Holmes in Attorney General v. Netherlands 
Fire his. Co., 181 Mass. 522, is interesting: 

"In the recent case of Johnson v. Mutual Ins. Co. of New York, 180 
Mass. 407, it is intimated that it is beyond the power of the Legislature 
to invahdate contracts made in another jurisdiction by a foreign corpora- 
tion, even though that corporation has submitted itself to our laws so far 
as is necessary in order to enable it to do business here. The doubt as to 
the power ivas regarded as an argument for construmg the statute as not 
making the attempt." (Underhning added.) 

In addition to the pronouncements of the Supreme Judicial Court 
quoted above, there are two further sources of material for a judgment 
on the question. 

First, chronologically, as well as logically, is an opinion of the Attorney 
General, II Op. Atty. Gen. 471, on a stated set of facts very close to those 
of the problem here under discussion. That opinion Avas rendered to the 
Insurance Commissioner in 1903. The opinion rests on the categorical 
statement that a foreign fire insurance company, not admitted to do busi- 
ness in Massachusetts, which made outside of Massachusetts an insurance 
contract on property in Massachusetts, without prior solicitation or nego- 
tiation in the Commonwealth, was not subject to prosecution for violation 
of Massachusetts insurance laws in that the policy differed from the stand- 
ard form therein prescribed. Referring to the then effective concluding 
sentence of section 3, quoted previously, the opinion flatly states (p. 472): 

"If this statute means more than that the legality and construction of 
such contract shall be governed by the IMassachusetts law, and attempts 
to take away a man's right to contract outside the State, it is unconstitu- 
tional. AUgeyer v. Louisiana, 165 U. S. 578. 

"The Legislature has no power to decide for the courts of Massachu- 
setts that the contract of insurance in question was made in Massachu- 
setts, when, under the law of the land, it was made in another State. If 
by a fiction it seeks to transfer the place of making the contract to Massa- 
chusetts, for the purpose of imposing a penalty for making it, it is a viola- 
tion of the Massachusetts Declaration of Rights and of the 14th Amend- 
ment of the Ignited States Constitution." 

The other and more important consideration is the following. The 
Legislature of the Commonwealth finally, by St. 1924, c. 406, § 1, removed 



32 P.D. 12. 

the concluding sentence from section 3. Thereby, it appears that the 
Legislature acquiesced in the then prevaihng concepts of the limitations 
on its powers, and removed from the laws of the Commonwealth the pro- 
vision which appeared to attempt what was then considered the impossible 
task of asserting jurisdiction over foreign insurance companies because 
they insured Massachusetts lives or interests in a contract made outside 
the Commonwealth. 

I therefore conclude that the Legislature of the Commonwealth has, 
at least since 1924, forborne to attempt to exercise jurisdiction over foreign 
insurance companies merely because they write, outside the State, insur- 
ance on lives and interests within the Commonwealth and thereafter do 
only such acts therein as are necessarily and inseparably connected with 
the very fact of such insurance itself. 

The intent of the Legislature has been to limit the section to Massachu- 
setts corporations or to insurance contracts made in Massachusetts by 
foreign corporations. Later amendments to the section under discussion 
have in no way enlarged the intent of the Legislature as thus determined 
to have been expressed in said section 3. (St. 1929, c. 24, § 52; St. 1931, 
c. 426, § 272.) 

Confirmation of this evaluation of the attitude of the Legislature may 
also be found in the fact that as late as 1939 the Legislature amended in a 
similarly restrictive manner chapter 175, section 157, previously referred 
to (p. 8), which requires foreign companies to act through resident agents, 
by adding to it the sentence: 

"This section shall apply only to acts done and contracts made within 
the commonwealth." (St. 1939, c. 315.) 

It is therefore my opinion that the present laws of the Commonwealth 
do not require licensing of the Company under its proposed operation for 
the reasons stated above. 

This opinion is in no way to be taken to express, inferentially or other- 
wise, any opinion that the proposed procedure would not subject the Com- 
pany to the provisions of St. 1950, c. 781 (Unauthorized Insurer's Process 
Act), or of G. L. (Ter. Ed.) c. 63, §§ 21 and 23 (Taxation of Insurance 
Companies), or of any other applicable law of the Commonwealth not 
considered herein expressly or by necessary implication. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Pardoning Power — Conviction for Contempt. 

Oct. 9, 1951. 

His Excellency Paul A. Dever, Governor of the Commonwealth, 

Sir: — The grant of power to pardon offences, with the advice and 
consent of the Executive Council, is derived from the Constitution itself 
and not from legislative sanction. Excluded from the pardoning power, 
however, by express constitutional provision, is the conviction by the 
Senate upon an impeachment by the House. A further limitation is placed 



P.D. 12. 33 

upon the pardoning power by a constitutional amendment adopted by 
the people in 1944 which gives the Legislature, in felonies, the power by 
statutory enactment "to prescribe the terms and conditions upon which 
a pardon may be granted." 

The power to pardon ''offences" is vested in the Governor. That power 
is not absolute for the reason that if the Governor undertakes to pardon 
he must meet the requirements of the constitutional sanction by submit- 
ting the matter to the Council for its advice and its action in concurrence 
with that of the initial action of the Governor. See Juggins v. Executive 
Council, 257 Mass. 386. 

The constitutional provision granting the pardoning power to the Gov- 
ernor is ]\Iass. Const., pt. 2d, c. II, § I, art. VIII, as amended by Art. 
LXXIII of the Amendments, which article of amendment was ratified by 
the people on November 7, 1944. Chapter II, § I, art. VIIl as so amended 
reads as follows : 

"The power of pardoning offences, except such as persons may be con- 
victed of before the senate by an impeachment of the house, shall be in the 
governor, by and with the advice of council, provided, that if the offence 
is a felony the general court shall have power to prescribe the terms and condi- 
tions upon which a pardon may he granted; but no charter of pardon, 
granted by the governor, with advice of the council before conviction, 
shall avail the party pleading the same, notwithstanding any general or 
particular expressions contained therein, descriptive of the offence or 
offences intended to be pardoned." 

The words underscored above contain the words of the amendment 
adopted by the people in 1944. 

It is to be noted that the constitutional provision set out above ex- 
cludes in its express terms the pardoning of offences before conviction. 
At common law the king was powerless to pardon before conviction. That 
common law was in force at the time of the adoption of our State consti- 
tution. 

In Massachusetts it was held in the case of Commonwealth v. Lockwood, 
109 Mass. 323, that after a verdict of guilty by a jury, upon waiving his 
exceptions and pleading executive pardon, the defendant must be dis- 
charged. The court was then pow^erless to impose sentence. The opinion 
in the Lockwood case is an exhaustive one and deals with numerous cases 
of executive clemency from the time of the adoption of the Massachusetts 
Constitution to the time of that decision in 1872. The meaning of the 
word "offences" as used in the opening sentence of the constitutional 
provision (c. II, § I, art. VIII) is to be given a construction consonant 
with sound reason and common sense, having in mind the manifest objec- 
tives and purposes of the constitutional provisions. It includes ^^-ithin its 
meaning not only common law and statutory crimes but criminal contempts 
as well. 

On December 8, 1938, His Excellency the Governor and the Executive 
Council propounded two questions to the Justices of the Supreme Judicial 
Court for their opinion on important questions of law. The two questions 
submitted to the court were : 

"1. Has the Governor by and with the advice of the Executive Council 
power to pardon for criminal contempt of court? 



34 P.D. 12. 

"2. If the opinion of the Justices is in the affirmative upon the foregoing 
question, have the Governor and the Executive Council power to consider 
and act upon said matter in view of the pendency before the Supreme 
Judicial Court of the petitions for writs of error aforesaid?" 

To both of these questions the Supreme Judicial Court on December 14, 
1938, answered "yes." 

At the time the matter was submitted to the Supreme Judicial Court by 
the Governor and the Executive Council there were pending before that 
court two petitions for writs of error which had been argued and taken 
under advisement by the court. 

In the Federal jurisdiction the Constitution of the United States, art. 
II, § 2, cl. 1, provides that the President "shall have power to grant re- 
prieves and pardons for offences against the United States, except in cases 
of impeachment" [itahcs supplied]. 

In the leading case of Ex parte Grossman, 267 U. S. 87, Chief Justice 
Taft, speaking for the court, said (at page 115) : "Nothing in the ordinary 
meaning of the words ' offences against the United States ' excludes criminal 
contempts" [italics supplied]. 

In its opinion in 301 Mass. at page 615, the Supreme Judicial Court 
adopted the decision in Ex parte Grossman, cited above, to the extent that 
the decision is "entitled to great respect, and the reasoning of the opinion 
is highly persuasive with reference to the meaning and effect of the per- 
tinent provision of the State Constitution," and that "the decision in the 
Grossman case should be followed in interpreting the pardon clause of the 
Constitution of the Commonwealth." 

The Supreme Judicial Court further said, adopting the language from 
the case of Hurley v. Commonwealth, 188 Mass. 443, 445, that: 

". . . it is universally recognized that an offence, committed directly 
against the authority and dignity of the court, as distinguished from mere 
disobedience of an order made for the benefit of a party, is therefore called 
a criminal contempt. The punishment of such an offence is solely for the 
vindication of public authority and the majesty of the law" [italics sup- 
plied]. 

And again, in its opinion answering the two questions of the Governor 
and Council, the Supreme Judicial Court said: 

"It follows from what has been said that the contempts in question are, 
in substance and effect, 'offences' against the Commonwealth. . . . The 
controlling constitutional provision, moreover, does not use the word 
' offences ' in a narrow sense, as is indicated by the fact that it was thought 
necessary to exclude expressly from the pardoning power persons convicted 
by impeachment, a form of conviction which does not preclude a further con- 
viction for crime upon indictment" [italics supplied]. 

It was stated in Ex parte Grossman, 267 U. S. 87, at pages 120 and 121: 

"Executive clemency exists to afford relief from undue harshness or 
evident mistake in the operation or enforcement of the criminal law. 
The administration of justice by the courts is not necessarily always aWsc 
or certainly considerate of circumstances which may properly mitigate 



P.D. 12. 35 

guilt. To afford a remedy, it has always been thought essential in popular 
governments, as well as in monarchies, to vest in some other authority 
than the courts power to ameliorate or avoid particular criminal judgments. 
It is a check entrusted to the executive for special cases." 

While the Supreme Judicial Court in its opinion in 301 Massachusetts 
adopts in the main the doctrine laid down in the case of Ex parte Gross- 
man, it nevertheless states at page 621 of its opinion the following lan- 
guage: "Whether there are criminal contempts of such kinds or committed 
in such circumstances that they so far tend to destroy the independence 
of the judiciary that the pardon clause is not to be construed as including 
them, we need not inquire. Cj. Ex parte Grosstnan, 267 U. S. 87, 120, 
121." 

A leading case in Massachusetts, decided in 1859, is that of Burnhavi v. 
Morrissey, reported in 14 Gray, 226. This was a habeas corpus petition 
brought against "the sergeant at arms of the Commonwealth," one IVIor- 
rissey. In this case Morrissey defended on the groiuid that as such ser- 
geant at arms he was "authorized to execute all la^\'ful processes directed 
to him by the general court or either branch thereof; and that by virtue 
of a warrant from the speaker of the house of representatives ... he 
committed Burnham to the Suffolk jail . . ." Burnham had refused to 
testify before "the house or one of its committees," and had refused to 
produce books and papers on the ground that they were private. In this 
case the Supreme Judicial Court said: "We think that the commitment 
to the jail was authorized by law, and that the petitioner was la^\^ully 
held by the sergeant at arms therein, in the custody of the sheriff or his 
deputy jailer, by virtue of the warrant of the house of representatives." 
Upon this decision the "petitioner was remanded." See also Attorney 
General v. Brissenden, 271 Mass. 172; Whitcomh's Case, 120 IVIass. 118; 
Emery's Case, 107 Mass. 172. See also the cases of United States v. Bryan, 
339 U. S. 323 and United States v. Fleisckman, 339 U. S. 349. 

Mass. Const., pt. 2d, c. I, § III, art. X, provides in part as follows: 

"The house of representatives shall . . . have authority to punish by 
imprisonment, every person, not a member, who shall be guilty of dis- 
respect to the house, by any disorderly, or contemptuous behavior in its 
presence; or who, in the town where the general court is sitting, and dur- 
ing the time of its sitting, shall threaten harm to the body or estate of any 
of its members, for any thing said or done in the house; or who shall 
assault any of them therefor; or who shall assault, or arrest, any witness, 
or other person, ordered to attend the house, in his way in going or return- 
ing; or who shall rescue any person arrested by the order of the house. 



Mass. Const., pt. 2d, c. I, § III, art. XI, provides as follows: 

"The senate shall have the same powers in the like cases; and the gover- 
nor and council shall have the same authority to punish in like cases. 
Provided that no imprisonment on the warrant or order of the governor, 
council, senate, or house of representatives, for either of the above de- 
scribed offences, be for a term exceeding thirty days. 

"And the senate and house of representatives may try and determine 
all cases where their rights and privileges are concerned, and which, by 



36 P.D. 12. 

the constitution, they have authority to try and determine, by committees 
of their own members, or in such other way as they may respectively think 
best." 

G. L. (Ter. Ed.) c. 3, § 28, reads as follows: 

"A person shall not be excused from attending and testifying before 
either branch of the general court or before a committee thereof upon a 
subject referred to such committee on the ground that his testimony or 
evidence, documentary or otherwise, may tend to criminate him or subject 
him to a penalty or forfeiture; but he shall not be prosecuted or subjected 
to a penalty or forfeiture for or on account of any action, matter or thing 
concerning which he may be required to so testify or produce evidence, 
except for perjury committed in such testimony." 

In conclusion, if it is assumed that facts are found against the State 
officer concerned, resulting in a conviction for contempt under authority 
of c. I, § III, art. XI, of the Constitution, such contempt would come within 
the scope of the pardoning power of the Chief Executive of the Common- 
wealth, with the advice and consent of the Council. 

Very truly yours, 
Timothy J. Muephy, Acting Attorney General. 



Department of Public Works — Speed Regulations — Publication and 

Hearing. 

Dec. 3, 1951. 
Hon, William F. Callahan, Commissioner of Public Works. 

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

You state that in accordance with G. L. (Ter. Ed.) c. 90, § 18, as amended 
by St. 1948, c. 564, § 2, your department has made special speed regula- 
tions and approved similar regulations made by municipal authorities; 
that said regulations have been certified (as required by said statute) as 
consistent with the public interests, after a public hearing; that your 
practice has been to publish a single notice of said hearing a week or so in 
advance; and that St. 1951, c. 576, provides that any department or com- 
mission having the power to make rules and regulations general in scope, a 
violation of which is penalized, shall hold a public hearing in regard thereto 
and publish a notice of said hearing once each week for three successive 
weeks. 

You wish to know whether special speed regulations for particular sec- 
tions of State highway are so "general in scope" as to require the pubU- 
cation called for by St. 1951, c. 576. 

The aforesaid section 18 of chapter 90, as amended, gives the depart- 
ment the right to "make special regulations as to the speed of motor ve- 
hicles and as to the use of such vehicles upon particular ways." 

Said St. 1951, c. 576, relates to the rules and regulations (general in 
scope) referred to in G. L. (Ter. Ed.) c. 30, § 37. The latter statute pro- 
vides that the department or commission which makes such rules and 



P.D. 12. 37 

regulations (general in scope and whose violation is penalized) shall file 
attested copies thereof with the State Secretary and they shall not take 
effect until such copies are so filed. Section 37 also provides that it shall not 
apply to orders or decrees made in specific cases within the jurisdiction of 
a department. 

Statute 1951, c. 576, merely declares that the attested copies required 
by c. 30, § 37, shall not be filed wdth the Secretary of State until at least 
twenty-one days after a public hearing, the notice of which was published 
once each week for three successive weeks. 

It could not be contended that the speed limits estabUshed for certain 
parts of highways are regulations general in scope which could not take 
effect until attested copies are filed with the Secretary of State. Statute 
1948, c. 564, § 2, amending said c. 90, § 18, merely declares that special 
speed limits for special areas may be established, and does not say that 
they shall be effective only when attested copies are filed with the State 
Secretary. 

Furthermore, it would appear manifest that special speed limits for 
particular areas of highway are not "regulations general in scope." 

Statutes should be read together and should be given such effect as to 
achieve a consistent and harmonious body of law. Assessors of Boston v. 
Lamson, 316 Mass. 166, 171. School Committee v. Gloucester, 324 Mass. 
209. 

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. Smith v. Director, 324 Mass. 
455. 

Chapter 30, section 37, relates only to the usual rules and regulations 
promulgated by a State agency for the overall governance of activities 
within the jurisdiction of said agency; and declares that if a violation 
thereof is penalized, the public must be informed of these rules and regu- 
lations by holding a public hearing, and further that they shall not take 
effect until attested copies thereof have been filed with the Secretary of 
State. Chapter 90, section 18, does not go this far. If the speed limit 
regulations established under c. 90, § 18, are not affected by c. 30, § 37, 
then they are not affected by St. 1951, c. 576. 

I therefore answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Commissioner of Administration — Rules and Regulatimis affecting Va- 
cations — Employees of the General Court. 

Dec. 20, 1951. 
Hon. Thomas H. Buckley, Commissioner of Administration. 

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

You state that pursuant to St. 1951, c. 806 (Supplementary Appropria- 
tion Bill), Item 0101-30, the Legislature presented to the Comptroller a 
schedule of payments covering certain employees of the General Court and 
providing for compensation in lieu of vacation; that G. L. (Ter. Ed.) 



38 P.D. 12. 

c, 7, § 7, as amended, provides that the Commissioner of Administration 
shall make rules and regulations affecting vacation leave for permanent 
and temporary employees; that such rules and regulations have been 
promulgated; and that the Comptroller refuses to pay the amounts con- 
tained in said schedule on the ground that the employees referred to therein 
are employees of the Commonwealth, and the amounts contained in the 
schedule are in violation of the general rules relating to vacations for 
employees. 

You wish to know whether such employees of the General Court are 
subject to said rules promulgated in pursuance of chapter 7, section 7, as 
amended. 

The intention of the General Court with respect to this legislation must 
be gathered from the words in which the statute is couched, giving them 
their ordinary meaning (unless there is something in the statute indicating 
otherwise), 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. MacBey v. Hartford Accident & Indemnity 
Company, 292 Mass. 105. 

Furthermore, statutes are to be explained in conjunction with other 
statutes to the end that there may be an harmonious and consistent body 
of law. School Committee v. Gloucester, 324 Mass. 209. Assessors of Bos- 
ton V. Lamson, 31G Mass. 166, 171. 

And the same is true with respect to the various provisions of a single 
statute. Real Properties, Inc. v. Board of Appeal, 311 Mass. 430, 436. 

Applying the aforesaid principles of statutory construction, let us ex- 
amine the pertinent legislation. 

Prior to 1949 said c. 7, § 7, provided that the Commissioner of Adminis- 
tration shall inquire into the business affairs of the Commonwealth for the 
purpose of promoting economy and efficiency, and shall "with respect to 
all state departments, divisions, commissions, boards, and other state 
agencies" conduct studies of their operation; report on all proposed legis- 
lation affecting the existing departmental organization, structure, pro- 
cedures and administrative practices; and recommend changes in the 
laws relating to departmental operation, organization, administration and 
procedures. It is manifest that this section as of that time was not in- 
tended to apply to the structure, procedure or administration of the Gen- 
eral Court. 

The Legislature further demonstrated its intention to retain complete 
control over all matters relating to its employees by G. L. (Ter. Ed.) 
c. 30, §§ 45 and 46. 

Section 45 provides "all appointive offices and positions in the govern- 
ment of the commonwealth, except those in the judicial branch and those 
in the legislative branch" shall be classified by the Division of Personnel 
and Standardization. 

Section 46 provides that the salaries of employees holding positions 
required to be classified under section 45 shall be fixed in accordance with 
said classification. 

With this background St. 1949, c. 448, amended c. 7, § 7, by adding a 
paragraph at the end thereof providing that the Commissioner of Adminis- 
tration shall make rules and regulations covering vacation leave, sick leave 
and other leave with pay for permanent and temporary employees. Taken 
literally the words "permanent and temporary employees" could be con- 
strued as including all employees of the Commonwealth. A strictly literal 



P.D. 12. 39 

construction, however, should not be adopted if the result will be to thwart 
the accomplishment of the obvious purpose of the statute, and if another 
interpretation is possible which will not have that effect. Frije v. School 
Committee, 300 Mass. 537. Cullen v. Mayor of Newton, 308 Mass. 578. 

Additional evidence of the intent of the Legislature to make provision 
for its own personnel may be gathered from St. 1951, c. 806, Item 0101-30, 
which appropiiates a certain sum "for the payment of certain salaries in 
heu of vacations, with the approval of the committees on rules of the two 
branches, acting concurrently." 

1 am therefore of the opinion that St. 1949, c. 448, was intended to 
apply only to those persons emploj'^ed in "state departments, divisions, 
commissions, boards and other state agencies," and I answer your ques- 
tion in the negative. 

Very truly yours, 

Fr.^ncis E. Kelly, Attorney General. 



Civil Service Commissioners — Petitions under G. L. (Ter Ed.) c. 31, § S. 

Dec. 28, 1951. 
Civil Service Commissioners. 

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

You state that in accordance w^th the provisions of G. L. (Ter. Ed.) 
c, 31, § 2, ten registered voters have petitioned the Commissioners of Civil 
Service to conduct an investigation into the matter specified in the peti- 
tion, and that several requests have been filed with the commission seeking 
copies of the petition. You pose three questions: 

"1. Is such petition a public record? 

"2. Is the Civil Service Commission required to disclose the names of 
persons who signed such petition? 

"3. Is the Civil Service Commission required to allow copies of such 
petitions to be made?" 

Said chapter 31, section 2, as amended, provides: 

"In addition to other duties imposed by this chapter and chapter thirteen 
the commission shall — 

"(a) Make investigations at its own discretion, or whenever requested 
in writing by the governor, the council, the general court or either branch 
thereof, the director, an aggrieved person, or by ten registered voters. 

"(d) Keep full and complete minutes of its proceedings." 

General Laws (Ter. Ed.) c. 4, § 7, cl. Twenty-sixth, provides: 

"'Public records' shall mean any written or printed book or paper . . . 
which any officer or employee of the common^^■ealth . . . has received or 
is required to receive for filing, and any book, paper, record or copy men- 
tioned in sections five to eight ... of chapter sixty-six ..." 



40 P.D. 12- 

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

"Every department, board, commission or office of the commonwealth 
. . . for which no clerk is otherwise provided by law, shall designate some 
person as clerk, who shall enter all its votes, orders and proceedings in 
books and shall have the custody of such books ..." 

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

" Every person having custody of any public records shall, at reasonable 
times, permit them to be inspected and examined b}-- any person, under his 
supervision, and shall furnish copies thereof on payment of a reasonable 
fee. ..." 

In the case of Nev) England Box Co. v. C & R Construction Co., 313 Mass. 
696, at 703, the court said: 

"There is no specific requirement in said § 6 [of c. 66] that the commis- 
sion, itself, shall keep records, but when the provisions of § 7, Twenty- 
sixth, of said c. 4 are read in connection with the provisions of said § 6 
. . . , we are of opinion that the requirement of said § 6 that all votes, 
orders, and proceedings of the commission shall be entered by the clerk, 
brings the records of the commission within the definition contained in 
§ 7, Twenty-sixth, of said c. 4. This last section does not go into the 
question of who is to make the record. But if an entry has been made or 
is required to be made by law, then, in construing statutes, unless a con- 
trary intention clearly appears, the words ' public records ' therein include 
any written or printed book in which such an entry, so required, has been 
made. 

"The provision of § 6 of said c. 66 ... is sweeping. It is not confined 
merely to votes of a pubhc board, but includes also its orders and pro- 
ceedings. The obvious purport of the section is to require that a public 
record of the proceedings shall be kept and it must have been intended 
that a record so kept should constitute a public record." 

To the same effect is Hardman v. Collector of Taxes of North Adams, 317 
Mass. 439, at 444. 

A receipt by the commission of a petition under the aforesaid c. 31, 
§ 2 (a), would fall within the category of documents described in c. 4, § 7, 
cl. Twenty-sixth, and c. 66, § 6. The petition upon receipt would have to 
be deposited among the other papers in the custody of the commission. 
And when the commission began its investigation its "proceedings" would 
necessarily be the offshoot of the petition, thus making the petition an 
integral part of the "proceedings." 

According to c. 66, § 10, copies of public records shall be furnished. 

I therefore answer your first and third questions in the affirmative. 
Your second question requires no answer because if a copy of the petition 
is furnished, the signers thereof will be disclosed. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 41 

Division of Employment Security — Employees — Liability for Alleged 

Overpayment. 

Jan. 17, 1952. 
Mr. Antonio England, Director, Division of Employment Security. 

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

You state that four employees of the Commonwealth received torn pc r:\ry 
appointments to your division in 1947 and 1948; that because of their 
capabilities they were respectively appointed or promoted to temporary 
senior positions as follows: 

A and B to senior machine operators, C to senior clerk interviewer and 
D to head janitor; that D's position was unclassified and did not require 
renewal, but the others did require renewal and their temporary appoii-lr- 
ments were renewed from time to time and approved by the Division of 
Personnel and Standardization and the Division of Civil Service; that all 
four took civil ser\dce examinations in 1949 and became eligible for ap- 
pointment in junior grades; that as a result thereof, D was appointed a 
permanent janitor on December 2, 1949, and A, B and C were appointed 
permanent junior clerks on January 3, 1950; that on January 1, 1950, 
approvals had been received for the employment of A, B and C in their 
aforesaid senior positions for the period January 1, 1950, to March 31, 
1950, and they performed the services in those positions through March 
31, 1950, despite their permanent appointment as junior clerks; that D's 
employment as head janitor not requiring renewal, D continued to work 
as head janitor through March 31, 1950, despite his permanent employ- 
ment as janitor; that Civil Service contended these employees could not 
serve their probationary periods in permanent positions while serving 
temporarily in higher grades, and said appointments to junior grades 
superseded the prior approvals to senior grades: and that as a result thereof, 
overpayments of salary for the period January 1, 1950, through IVIarch 
31, 1950, were made to A, B, C and D. 

You wish to know: 

1. Does St. 1951, c. 157, apply? 

2. Do said four employees owe the Commonwealth for such alleged 
overpayments? 

Statute 1951, c. 157 (effective June 15, 1951), amends chapter 31 of the 
General Laws by adding section 15F as follows: 

"Any person who is appointed to a permanent position after certifica- 
tion may ... be provisionally promoted prior to the completion of the 
probationary period to a position in the next higher grade in the same 
department. . . . Such provisional promotion shall not . . . interrupt 
the serving of the probationary period ... in the oflSce or position of the 
lower grade." 

Unless otherwise indicated, statutes have a prospective operation only. 
Greenaway's Case, 319 Mass. 121. Ring v. Woburn, 311 Mass. 679. 
It therefore follows that said chapter 157, effective June 15, 1951, could 



42 P.D. 12. 

not apply. Furthermore the situations described by you do not fall within 
the categories covered by said chapter 157. The statute was intended to 
cover a situation like the following : 

X receives a permanent appointment to position A. While serving his 
probationary period in position A, X is needed in position B of higher 
grade and is appointed thereto on a temporary basis. While performing 
the service required of position B, X is deemed to be serving his probation- 
ary period in position A. 

In the cases cited, however, A, B, C and D were already holding on a 
temporary basis the position of higher grade when appointed to the per- 
m.anent position of lower grade, and did not assume or perform the service 
required of said position of lower grade; but on the contrary continued to 
perform the service required of the temporary position of higher grade 
during the period January 1, 1950, through March 31, 1950. 

Civil service cannot wave a magic wand and say to these employees 
"Although you have been appointed to higher grade positions and you 
have continued to render the service required of these positions, neverthe- 
less because you were during that period of service appointed to a per- 
manent position, your service in said higher positions has become ipso 
facto nullified and you should not have been paid for said service." 

Such an interpretation of the law may be technically correct, but it 
would make a travesty of common sense. An mtention to accomplish an 
absurd result is not to be attributed to the Legislature unless clearly re- 
quired by the language of the statute. Petition of Curran, 314 Mass. 91. 

A strictly literal construction of a statute should not be adopted if it 
would be contrary to common sense and sound reasoning. Cullen v. 
Mayor of Newton, 308 Mass. 578. Commonwealth v. Slome, 321 Mass. 713. 

I therefore answer both your questions in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 

University of Massachusetts — Investment of Funds and Securities. 

Jan. 23, 1952. 

Joseph W. Bartlett, Esq., Chairman, Board of Trustees, University of 
Massachusetts. 

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

You state that in an equity proceeduig in the superior court of the Com- 
monwealth a decree was entered declaring, in substance, that it has become 
impracticable and inexpedient longer to carry on the corporate activities 
of a certain charitable corporation; that the latter's charitable purposes 
would fail unless its remaining assets were applied under the cy pres doc- 
trine; and, applying said doctrine, the remaining assets were ordered 
assigned and transferred to the Trustees of the University of Massachu- 
setts to hold, invest and reinvest said assets and use the income thereof for 
the education and training in agriculture of boys resident in western 
Massachusetts. 

You also state that such assets consisted of (1) certain bonds, (2) cer- 



P.D. 12. 43 

tain preferred stock, (3) certain common stock, (4) certain British securi- 
ties, and (5) certain miscellaneous items, including approximately five 
thousand dollars in cash; and that cl)out thirty-eight per cent of the total 
fund has been disposed of by sale ai d rehivested partly in a real estate 
mortgage and partly in certain United States securities. 
You pose three questions as follows : 

"1. Are the funds and securities turned over to the University trustees 
by the Ascension Farm School trustees pursuant to the Superior Court 
decree above referred to 'held in accordance with special trusts' or 'gifts — 
of personal property made to the Commonwealth for the use of the College,' 
so that the investment of such funds and securities is governed by G. L. 
c. 75, § 7? 

"2. If the answer to question 1 is affirmative, have the University 
trustees, nevertheless, discretionary authority to retain stocks and securi- 
ties delivered by the Ascension trustees in the form m which they are 
received, even though they would not have authority to invest other 
funds in such securities? 

"3. More generally as to the interpretation of G. L. c. 75, § 7: 

" (a) Is this section the exclusive source of authority of the University 
trustees to invest special funds, gifts and legacies, or do they have in any 
degree the authority of private trustees to exercise the judgment of 'a 
prudent man,' or anv powers which may be granted by the will containing 
the gift? 

"(b) Does the last phrase of § 7 mean 'in notes or bonds secured by 
sufficient (1) mortgages or (2) other securities,' or mean 'in (1) notes or 
bonds secured by sufficient mortgages or [in] (2) other securities'? If the 
first interpretation is the correct one, may the Uni\'ersity trustees, for 
example, invest hi United States, state or municipal bonds (none of v.'hich 
are 'secured' by mortgages or other securities)?" 

General Laws (Ter. Ed.) c. 75, § 7, contains the authority and duty of 
the tmstees with respect to the management of special trusts and invest- 
ment of funds. Said statute provides : 

"The trustees shall administer property held in accordance with special 
trusts, and shall also administer grants or devises of land and gifts or be- 
quests of personal property made to the commonwealth for the use of the 
university, and execute said trusts, investing the proceeds thereof in notes 
or bonds secured by sufficient mortgages or other securities." 

In construing this statute we must gather the legislative intent from the 
words in which the statute is couched (giving them their ordinary meaning 
unless there is something in the statute indicating otherwise), from the 
pre-existing state of the common and statutory law, and from the main 
object sought to be accomplished by the enactment. Meuniers Case, 319 
Mass. 421. MacBey v. Hartford Accident & Indemnity Co., 292 JMass. 105. 

When the substance of said c. 75, § 7, was first enacted, the authority 
and duties of trustees had already been enunciated ui this Commonwealth 
in the case of Harvard College v. Amory, 9 Pick. 446, 461. This case has 
been followed by later cases and more recently in Mclnnes v. Whitman, 
313 ISlass. 19, 30, where the court said the duty of a trustee is "to conduct 
himself faithfully and to exercise a sound discretion, and to be enlightened 



44 P.D. 12. 

by observance as to how men of prudence, discretion and intelligence 
manage their own affairs, not in regard to speculation but in regard to the 
permanent disposition of their funds, considering the probable income as 
well as the probable safety of the capital" to be invested. 

The Harvard College case also indicates what the prudent man may 
invest m. See also in this connection New England Trust Co. v. Paine, 317 
Mass. 542, 554. 

The same principles are applicable to matters of trust administration 
as well as to matters of investment. Kjiowlton v. Fourth- Atlantic National 
Bank, 271 T^Iass. 343. 

It would result from the foregoing that a trustee has a duty to make the 
trust property productive and to use due care in maintaining a proper 
trust portfolio. He should convert unproductive or improper investments 
into something suitable for the portfolio. Mclnnes v. Whitman, 313 Mass. 
19, 28. 

The aforesaid c. 75, § 7, must, therefore, be read in the light of the com- 
mon law outlined above. With this in mind let us examine each of your 
questions. 

1. In legal intendment, a gift is defined as a voluntary transfer of prop- 
erty without consideration. As recipients, the trustees clearly received a 
traP-sfer of property without consideration. If, technically speakmg, 
however, the transfer was not a gift because it was ordered by the court 
and therefore not voluntary, nevertheless, the trustees received the prop- 
erty as a special trust, namely: "to be held, invested and reinvested and 
the income used for the education and training in agriculture of boys resi- 
dent in western Massachusetts." 

2. Interpretmg the statute in the light of the Harvard College case, it 
would seem that if the trustees found their portfolio included securities 
they had no authority to purchase for investment, then it would be their 
duty to sell and convert them into other suitable securities. 

3. (a) It would seem that c. 75, § 7, coupled with the pre-existing com- 
mon law as to the powers and duties of trustees, furnishes your authority. 
The specific directions of a testator or settlor, however, should be obeyed, 
even if contrary to the general principles outlined above. Restatement 
Trusts, s. 227; senible, Davis, Appellant, 183 Mass. 499, 502. 

(6) The Harvard College case clearly indicated that the field of invest- 
ment is not limited to notes and bonds that are secured. Furthermore, 
some of the best grades of securities for hivestment purposes are Federal, 
State or municipal obligations, which are not secured by mortgage or 
other securities. Consequently, legislation which would limit the trustees 
of the University of Massachusetts to investment in secured bonds and 
notes would be short-sighted; and we should not attribute to the Legisla- 
ture an intention to accomplish an absurd result unless clearly required 
by the language of the statute. Petition of Curran, 314 Mass. 91. 

It is therefore more in accord with reason and common sense to hold 
that in the clause "investing the proceeds thereof in notes or bonds se- 
cured by sufficient mortgages or other securities" the preposition "by" 
does not take as its object the words "other securities." 

I therefore answer your first question in the affirmative, your second 
question in the negative, and your third question as outlmed in my dis- 
cussion under 3 (a) and 3 (6). 

Very truly yours, 

Francis E. Kelly, Attorney General. 



P.D. 12. 45 

Commissioner of Public Safety — Rules and Regulations for State Police 
— Effect of G. L. (Ter. Ed.) c. 7, § 7. 

Jan. 28, 1952. 
Hon. Thomas H. BucKhKY, Commissioner of Administration. 

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

You state that G. L. (Ter. Ed.) c. 22, § 9A, authorizes the Commissioner 
of Pubhc Safety, subject to the approval of the Governor, to make rules 
and regulations for the additional members of the State Police appointed 
with the Governor's approval, includii\g matters pertaining to compensa- 
tion and equipment; that St. 1949, c. 307, § 8, in effect eliminated main- 
tenance allowances for State employees; that prior thereto, in 1948, the 
uniformed members of the State Police were granted larger increases in 
compensation in order to equalize the charges made against said members 
for their maintenance during barracks assignment ; that, as a consequence, 
payroll deduction agreements were signed by the uniformed patrolmen 
to deduct a fixed amount per month to cover their ration and quarters 
allowance: that St. 1949, c. 448, amended G. L. (Ter. Ed.) c. 7, § 7, by 
adding at the end thereof a provision authorizing the Commissioner of 
Administration to make rules regulating maintenance charges for perma- 
nent and temporary employees; and that in March, 1951, the Commis- 
sioner of Public Safety amended his department's rules covering main- 
tenance of the uniformed branch of the State Police by eliminating any 
charge for quarters but continued the charge for rations during barracks 
assignment. 

You wish to know whether G. L. (Ter. Ed.) c. 7, § 7, as amended, has 
superseded G. L. (Ter. Ed.) c. 22, § 9A, as to mles relatmg to maintenance 
charges. 

Several statutory provisions are pertinent to your inquiry. Said sec- 
tion 9 A provides hi substance that the Governor may authorize the Com- 
missioner of Public Safety to make additional appointme)its to the Divi- 
sion of State Police; that said appointments shall be by enlistment for 
terms not exceeding three years and the appointees shall be exempt from 
civil service laws and mles; that the commissioner may, subject to the 
approval of the Governor, make mles and regulations for such additional 
force, including matters pertahiing to their discipline, organization and 
government, compensation and equipment, and means of swift transporta- 
tion; that said force shall not be called ui any industrial dispute uidcss 
actual violence has occurred, and then only by order of the Governor; 
and that the commissioner may expend for administration, organization, 
government, training, compensation, equipment and maintenance such 
amount as the General Court may appropriate. 

Section 9 provides in substance that whenever the Go^'ernor shall deem 
it necessary for the maintenance of law and order he may authorize the 
Commissioner of Public Safety to make additional appointments not 
exceeding one hundred in number to the Division of State Police; and 
that the commissioner may, subject to the approval of the Governor, make 
rules and regulations for the said additional force, including matters per- 
taining to their discipline, organization and government, compensation 
and equipment, and means of swift transportation. 



46 P.D. 12. 

General Laws (Ter. Ed.) c. 147, § 1, provides as follows: 

"The commissioner of public safety, in this chapter called the commis- 
sioner, shall have charge of the administration and enforcement of all 
laws, rules and regulations which it is the duty of the department of public 
safety, in this chapter called the department, to administer and enforce, 
and shall, except as is otherwise provided, direct all inspections and investi- 
gations. He shall, subject to the approval of the governor, make all neces- 
sary rules for the government of his department, for reports to be made by 
offices under him and for the performance of their duties. He shall make 
an annual report." 

Prior to 1949 G. L. (Ter. Ed.) c. 7, § 7, provided in substance that the 
Commissioner of Administration shall inquire into the business affairs of 
the Commonwealth for the purpose of promoting economy and efficiency, 
and shall with respect to all State departments, divisions, commissions, 
boards and other State agencies conduct studies of their operation; report 
on all proposed legislation affecting the existing departmental organiza- 
tion, structure, procedures and administrative practices; and recommend 
changes in the laws relating to departmental operation, organization, 
administration and procedures. 

Statute 1949, c. 448, amends the aforesaid c. 7, § 7, by adding at the 
end thereof the following paragraph : , 

"The commissioner [of administration] 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 
maintenance charges or payments in lieu thereof, vacation leave, sick 
leave and other leave with pay, including compensation for overtime 
serv'ice, for permanent and temporary employees." 

When statutes appear to be inconsistent with each other, in whole or 
in part, they must be so construed as to give reasonable effect to both 
unless there be some positive repugnancy between them. School Committee 
V. Gloucester, 324 Mass. 209. 

It seems, however, that among the various subject matters concerning 
which the Commissioner of Public Safety and the Commissioner of Ad- 
ministration have the right to make rules, there is one common item, 
namely, maintenance charges; and as to this one item c. 22, § 9A, and 
c. 7, § 7, appear to be in conflict. Did the Legislature in 1949 intend to 
eliminate from the rule-making power of the Commissioner of Public 
Safety the one item of maintenance charges? 

Statutes should, if possible, be explained in such a manner as to achieve 
a consistent and harmonious body of law. Assessors of Boston v. Lamson, 
316 Mass. 166, 171. It is true, of course, that when a statute deals in a 
comprehensive way with an entire subject, previous conflicting provisions 
of the law are not designed to be continued. Godfreij v. Building Commis- 
sioner, 263 Mass. 589, 592. Norcross v. Board of Appeal, 255 Mass. 177, 
182. 

But in this instance it is apparent the Legislature did not intend in St. 
1949, c. 448, to give to the Commissioner of Administration authority to 
make rules concerning all matters within the ambit of the authority given 
the Commissioner of Public Safety . 



P.D. 12. 47 

It would appear from the broad rule-making power granted the latter 
commissioner by c. 22, §§9 and 9A, and c. 147, § 1, that the Legislature 
intended to repose in him complete centralized and special control which 
is really essential for the most efficient governance of the State Police. 
It is also significant that the Governor is given such broad supervisory 
control. 

A legislative intent to abrogate or diminish such complete control should 
require a specific reference thereto, which is lacking in St. 1949, c. 448. 

I am therefore of the ophiion that the rule-making power of the Com- 
missioner of Public Safety is not affected by c. 7, § 7, as amended, and I 
answer your question in the negative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



Soldiers and Sailors — Purple Heart — Benefits under G. L. (Ter. Ed.) 

c. 59, § 5. 

Feb. 25, 1952. 

The Honorable the House of Representatives of the Commonwealth of Massa- 
chusetts: 

The Attorney General respectfully submits the following answer to the 
question set forth in an order adopted by the House of Representatives on 
February 19, 1952. The question is as follows: 

"Are soldiers and sailors to whom have been awarded the decoration 
of the Purple Heart, entitled to the benefits provided for by section 5 of 
chapter 59 of the General Laws, as amended by chapter 675 of the Acts of 
1951?" 

Said St. 1951, c. 675, amends clause 22 of section 5 of G. L. (Ter. Ed.) 
c. 59. Prior to 1951 clause 22 granted to certain soldiers and sailors and 
others an exemption from local taxation on real estate to the extent of two 
thousand dollars in valuation. 

To ascertain the intention of the General Court in enacting St. 1951, 
c. 675, it w'ould be well to examine the pertinent legislative history of 
clause 22. 

As of the year 1945 said clause granted an exemption to (a) those serv- 
ing in the military or naval service of the United States during the Civil 
War, Spanish War, Philippine Insurrection, or World War I who, from 
injuries received or disease contracted in line of duty, lost the sight of both 
eyes or the sight of one eye if the sight of the other had been previously 
lost, or who lost one or both feet or one or both hands; and (6) those serv- 
ing as aforesaid who, as the result of disability contracted in line of duty, 
became permanently incapacitated to an extent equivalent in the judgment 
of the assessors to the loss of a hand or foot. 

Statute 1945, c. 627, amended paragraph (a) by substituting the words 
"World War I or World War H" for the words "World War I." 

Statute 1946, c. 579, substituted a new clause 22, made no change in 
paragraph (a) but changed paragraph (6) by requiring a disability rating 
of twenty per cent as determined by the Veterans' Administration. 



48 P.D. 12. 

Statute 1947, c. 612, substituted a new clause 22; made no change in 
paragraph (a) but changed the twenty per cent rating in paragraph (6) 
to ten per cent; and added a paragraph (c) exempting those not exempt 
under paragraphs (a) or (6) but who served as aforesaid and who in hne 
of duty contracted a disabihty which permanently incapacitated them to 
an extent equivalent, in the judgment of the assessors, to the disability 
of the soldiers and sailors having a disability rating of ten per cent as 
determined by the Veterans' Administration. 

Statute 1949, c. 534, substituted a new clause 22; changed paragraph 
(a) by dropping those who served in the Civil War, Spanish War, Philip- 
pine Insurrection or in the China Relief Expedition; made no change in 
paragraphs (6) or (c) ; added a new paragraph {d) naming those who served 
in the Civil, Spanish or Philippine Wars or in the Chinese ReUef Expedi- 
tion; and added a new paragraph (e) naming those who had been awarded 
the decoration of the Purple Heart. No reference to disability was made 
in paragraphs (d) or (e). 

Statute 1951, c. 675, entitled "An Act further exempting from taxation 
certain property of certain disabled veterans," substituted a new clause 
22; and made no change in paragraph (a), excepting to increase the exemp- 
tion from two thousand dollars to three thousand dollars, but required 
that the loss of both eyes or both arms or both legs be in the line of duty. 
The act made no changes in paragraphs (b), (c), (d) or (e). 

To interpret the aforesaid statutes we must give the words used their 
ordinary meaning, unless otherwise indicated, consider the pre-existing 
state of the common and statutory law, and also the main object sought 
to be accomplished by the enactments. Meunier's Case, 319 Mass. 421. 
MacBey v. Hartford Accident d' Indemnity Co., 292 Mass. 105. 

We must also construe a statute as a whole so as to make it an effectual 
piece of legislation in harmony with common sense and sound reason. 
Commonwealth v. Slome, 321 Mass. 713. Johnson's Case, 318 Mass. 741. 

Furthermore, verbal changes made in a revision of a statute do not 
change its meaning unless an intent to change the meaning plainly appears 
either from the words themselves or from the legislative history. Scaccia 
V. Boston Elevated Railway, 317 Mass. 245, 251. 

Applying the above principles of statutory constmction it is manifest 
from the aforesaid legislative history that the General Court, up until 
1949, required the serviceman to have contracted a disability in line of 
duty before being entitled to an exemption. Then in 1949, by chapter 
534, the Legislature determhied to reward veterans of the Civil War, 
Spanish War, Phillippine Insurrection or Chinese Relief Expedition, or 
holders of the Purple Heart, whether said veterans or holders were dis- 
abled or not. 

When the 1949 amendment was enacted it was generally accepted by 
the taxing authorities that the holders of the Purple Heart became en- 
titled to the exemption whether disabled or not. It is now contended by 
the same taxing authorities that the title of the 1951 amendment shows 
an intention on the part of the Legislature to require holders of the Purple 
Heart to have a disability hi order to qualify for the exemption. There 
is no merit to this contention. 

First, although the title of an act is part of the act in a legal sense and 
may be resorted to as an aid in interpreting the act (Commissioner v. Chil- 
ton Club, 318 Mass. 285, 292), yet it cannot control or enlarge the words 
of the statute unless they are doubtful or ambiguous. Lorain Steel Co. v. 



P.D. 12. 49 

Norfolk Street Railway, 187 Mass. 500, 505. Charles I. Hosmer, Inc. v. 
Commonwealth, 302 iMass. 495, 501. 

Secondly, the title actually demonstrates the desire of the General 
Court for "further exempting from taxation" certain disabled veterans. 
The Legislature expressed this desire by increasing the exemption to three 
thousand dollars to those disabled veterans described in paragraph (a). 
The Legislature did not increase its bounty to those disabled veterans 
described in paragraphs (b) or (c), nor to those serv'icemen described in 
paragraphs (d) or (e). There is no sound reason, however, for concluding 
that the General Court intended thereby to withdraw its bounty (given 
in 1949) from those described in said paragraphs {d) or (e) who had no 
disability. The language of said paragraphs (d) and (e) is specific and is 
not ambiguous, and its application cannot be restricted unless in the act 
as a whole there is a clear and unmistakable legislative intent to do so. 
Such intent cannot be found. 

A short answer to the contention of the aforesaid taxing authorities is 
that if the Legislature desired the holder of the Purple Heart to have a 
disability before being entitled to the exemption, there would have been 
no need of paragraph (e). To be awarded the Purple Heart the serviceman 
had to be injured in combat, and if he contracted a disability therefrom 
he would fall within the class of those described m paragraphs (6) or (c). 

I therefore answer your question in the affirmative. 

Respectfully yours, 
Francis E. Kelly, Attorney General. 



Presidential Preference of Voters at Presidential Primaries — Use of Nick- 
names. 

Apr. 23, 1952. 

To the Honorable the Senate of the Commonwealth of Massachusetts: 

The Attorney General respectfully submits the following answers to 
the questions set forth in an order adopted by the Senate on April 15, 
1952. The questions relate to G. L. (Ter. Ed.) c. 53, § 70E, as appearing 
in St. 1951, c. 764, and are as follows: 

"1. In counting and tabulating the votes showing the voter's preference 
for president shall the nicknames by which the presidential candidates are 
popularly kno\\ai, if written on the ballot, be construed to be the name of 
the candidate for whom the voter intended to cast his vote? 

"2. Shall the name 'Ike' if written on the ballot mean that the voter 
intended to vote for D wight D. Eisenhower? 

"3. Shall the name 'Bob' if written on the ballot mean that the voter 
intended to vote for Robert A. Taft?" 

Said chapter 764 amends G. L. (Ter. Ed.) c. 53, § 70E (as amended), 
by adding at the end thereof the following: 

"The state secretary shall cause to be placed on the official ballot for 
use in presidential primaries, the following: — 



50 P.D. 12. 



PRESIDENTIAL PREFERENCE. 

"To express your individual preference for the person to be nominated 
as the (name of poHtical party) candidate for president of the United States, 
insert the name of such person in the blank space below. 

"My preference for (name of political party) candidate for president of 
the United States is 

"Election officers in the presidential primaries, in counting and tabulat- 
ing the votes showing the voters' preference for president, shall disregard 
the omission or inaccuracy of initials, the omission, inaccuracy or misspell- 
ing of Christian names, and the misspelling of surnames, if the intent of 
the voter to express a preference for any particular individual can be ascer- 
taiiied. Such statements of voters of presidential preference shall be 
counted, tabulated and entered in the records of election officers of votes 
cast." 

The attitude of our Supreme Judicial Court with reference to the identi- 
fication of persons by means of a sobriquet is found in many cases. It will 
be helpful to analyze some of them. 

In Commonwealth v. Gale, 11 Gray 320, the defendant was indicted by 
the name of Alfred E. Gale. His true name was Alfred Atwood Ezra 
Gale. The Commonwealth was permitted to show that the defendant 
had usually been known and called by the name of Alfred E. Gale when 
not present, and frequently called in his presence A. E. Gale, Alf. Gale, 
or Barber Gale. The court said : 

" The question whether a person is as well known by one name as another 
is a question of reputation, of custom and usage, and not to be determined 
by records, nor limited to names used in his presence." 

In Young v. Jewell, 201 Mass. 385, at 386 [cited with approval in Bridges 
V. Hart, 302 Mass. 239, at 245], the court said: 

"Where a person is in fact known by two names, either one can be used. 
This principle has been applied in about every connection. . . . 

"It is said in many of the earlier cases that the person in question must 
be known by one name as well as by the other. That means that he must 
be known by both names, not that he must be equally well known by 
both names." 

In Fine v. Kahn, 270 Mass. 557, the tme name of the plaintiff was 
Morris R. Fine, but at times he used and was loiown by the name of ]\Iur- 
ray R. Fine, in which name his motor vehicle was registered. The court 
held that to comply with the statute as to registration it was necessary 
that the registrant be commonly known by the name he used in his appli- 
cation so that he could be readily identified and found in the community. 

Very pertinent to our question is the most recent case of Kane v. Regis- 
trars of Voters of Fall River et al., Mass. Adv. Sh. (1952) 347, where the 
court considered the counting of ballots in behalf of candidates for the 
office of mayor. In that case the court said on pages 352 and 353 : 

"In the construction of the election laws the principle running through 
our decisions is that the will of the voters, if it can be determined with 



P.D. 12. 51 

reasonable certainty, must be given effect. If the ballot, considered in the 
light of the character and location of the mark and conditions attendant 
upon the election, fairly indicates the voter's intent, the vote should be 
counted in accordance with that intent, provided the voter has substanti- 
ally complied with the requisites of the election law. The voter is not to 
be disfranchised because of mhior irregularities. Where, however, the 
ballot is marked in such a way as to leave the intent of the voter in the 
realm of conjecture, the vote should not be counted." 

Statute 1951, c. 764, is confirmatory of the common law. Furthermore, 
it permits a greater latitude in ascertaining the voter's intent. If the 
voter's preference can be determined, omissions, uiaccuracies or misspell- 
ings of Christian names or the misspelling of surnames shall be disregarded. 

Dwight D. Eisenhower is the legal name of one of the Republican candi- 
dates. He is promhiently known as "Ike," which may be a contraction of 
either his first or last name. This contraction is a part of his campaign 
slogan. None of the other kno^^^^ candidates is thus referred to. It would 
appear that writing "my preference for the Republican candidate for 
president of the United States is 'Ike'" is intended to refer to Dwight D. 
Eisenhower, and said chapter 764 would permit counting such a vote. 
The statute declares that omissions, inaccuracies or misspelling of the 
Christian name shall be disregarded. 

Answering your specific question I would say the voter intended to vote 
for Dwight D. Eisenhower when he wrote "Ike," and the vote should be 
counted. 

The name "Bob" is undoubtedly a contraction of the Christian name 
"Robert." None of the kno\\Ti candidates for the Republican nomination 
for President is named "Robert" other than Robert A. Taft. The said 
chapter 764 by implication permits accepting such a word as designating 
the candidate referred to by the voter. 

This type of preferential primary is not determinative of the rights of 
any candidate nor does it do more than permit an expression of public 
opinion. Wide latitude should be permitted in ascertaining the voter's 
preference under these circumstances. 

I therefore answer your questions in the affirmative. 

Respectfully yours, 

Francis E. Kelly, Attorney General. 



Presidential Primaries — Expression of Preference by Nickname. 

Apr. 23, 1952. 
Hon. Edward J. Cronin, Secretary of the Commonwealth. 

Dear Sir: — You ask my opmion as to the effect of the law under the 
circumstances hereinafter described. 

You state that St. 1951, c. 764, provides that in presidential primaries 
voters may express their preference for a person to be nominated as Presi- 
dent of the United States; and that one of the Republican candidates is 
Dwight D. Eisenhower, who is commonly referred to as "Ike." You wish 
to know whether election officers in said primary shall count and tabulate 
for said Dwight D. Eisenhower a ballot marked merely "Ike." 



52 P.D. 12. 

Said chapter 764 amends G. L. (Ter. Ed.) c. 53, § TOE (as amended), 
by adding at the end thereof the following : 

"The state secretary shall cause to be placed on the official ballot for 
use in presidential primaries, the following: 

PRESIDENTIAL PREFERENCE. 

"To express your individual preference for the person to be nommated 
as the (name of political party) candidate for president of the United 
States, insert the name of such person in the blank space below. 

"My preference for (name of political party) candidate for president 
of the United States is 

"Election officers in the presidential primaries, in counting and tabu- 
lating the votes showing the voters' preference for president, shall disre- 
gard the omission or inaccuracy of initials, the omission, inaccuracy or 
misspelling of Christian names, and the misspelling of surnames, if the 
intent of the voter to express a preference for any particular individual 
can be ascertained. Such statements of voters of presidential preference 
shall be counted, tabulated and entered in the records of election officers 
of votes cast." 

The attitude of our Supreme Judicial Court with reference to the identi- 
fication of persons by means of a sobriquet is found in many cases. It will 
be helpful to analyze some of them. 

In Commonwealth v. Gale, 11 Gray 320, the defendant was indicted by 
the name of Alfred E. Gale. His true name was Alfred Atwood Ezra Gale. 
The Commonwealth was permitted to show that the defendant had usually 
been known and called by the name of Alfred E. Gale when not present, 
and frequently called in his presence A. E. Gale, Alf. Gale, or Barber Gale. 
The court said: 

"The question whether a person is as well known by one name as another 
is a question of reputation, of custom and usage, and not to be deter- 
mined by records, nor limited to names used in his presence." 

In Young v. Jewell, 201 Mass. 385, at 386 [cited with approval in Bridges 
V. Hart, 302 Mass. 239, at 245], the court said: 

"Where a person is in fact known by two names, either one can be used. 
This principle has been applied in about every connection. . . . 

" It is said in many of the earlier cases that the person in question must 
be known by one name as well as by the other. That means that he must 
be known by both names, not that he must be equally well known by both 
names." 

In Fine v. Kahn, 270 Mass. 557, the true name of the plaintiff was 
Morris R. Fine, but at times he used and was known by the name of Mur- 
ray R. Fine, in which name his motor vehicle was registered. The court 
held that to comply with the statute as to registration it was necessary 
that the registrant be commonly Icnown by the name he used in his appli- 
cation so that he could be readily identified and found in the community. 

Very pertinent to our question is the most recent case of Kane v. Regis- 
trars of Voters of Fall River et al, Mass. Adv. Sh. (1952) 347, where the 



P.D. 12. 53 

court considered the counting of ballots in behalf of candidates for the 
ofl&ce of mayor. In that case the court said on pages 352 and 353: 

"In the construction of the election laws the principle running through 
our decisions is that the will of the voters, if it can be determined with 
reasonable certainty, must be given effect. If the ballot, considered in the 
light of the character and location of the mark and conditions attendant 
upon the election, fairly indicates the voter's iritent, the vote should be 
counted in accordance with that intent, provided the voter has substanti- 
ally complied with the requisites of the election law. The voter is not 
to be disfrancised because of muior irregularities. Where, however, the 
ballot is marked in such a way as to leave the intent of the voter in the 
realm of conjecture, the vote should not be counted." 

Statute 1951, c. 764, is confirmatory of the common law. Furthermore, 
it permits a greater latitude in ascertaming the voter's intent. If the 
voter's preference can be determined, omissions, inaccuracies or misspell- 
ings of Christian names or the misspelling of surnames shall be disregarded. 

D wight D. Eisenhower is the legal name of one of the Republican candi- 
dates. He is prominently kno\^^l as "Ike," which may be a contraction 
of either his first or last name. This contraction is a part of his campaign 
slogan. None of the other knowTi candidates is thus referred to. It would 
appear that writing "my preference for the Republican candidate for 
president of the United States is 'Ike'" is intended to refer to Dwight D. 
Eisenhower, and said chapter 764 w^ould permit counting such a vote. 
The statute declares that omissions, maccuracies or misspelling of the 
Christian name shall be disregarded. 

I therefore answer j^our question in the affirmative. 

Very tRily yours, 

Francis E. Kelly, Attorney General. 



Veterans' Organizations — Eligibility for Quarters under G. L. (Ter. Ed.) 

c. 40, § 9. 

May 16, 1952. 

Mr. Richard F. Tobin, Commissioner of Veteraiis' Services. 

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

You state that the Italian-American World War Veterans of the United 
States, Inc., and the Jewish War Veterans of the United States are incor- 
porated veterans' organizations but not incorporated or chartered by the 
Congress of the United States; and that the American Veterans of World 
War II, AMVETS, was chartered by an Act of Congress on July 23, 
1947. 

You ask three questions : 

"1. Is the local post of the Italian-American World War Veterans of 
the United States, Inc., in the City of Beverly, which post has not been 
in existence for three years and which post was not organized on or prior 
to the effective date of chapter 343 of the Acts of 1949, eligible for quarters 
under either section 9 of chapter 40 of the General Laws, as most recently 



54 P.D. 12. 

amended by chapter 303 of the Acts of 1950, or section 9 of chapter 40 of 
the General Laws, as existing immediately prior to the effective date of 
said chapter 343 of the Acts of 1949? 

"2. Is the local post of the Jewish War Veterans of the United States, 
in the City of Beverly, which post has been in existence for three years and 
which post was organized on or prior to the effective date of chapter 343 
of the Acts of 1949, eligible for quarters under either section 9 of chapter 
40 of the General Laws, as most recently amended by chapter 303 of the 
Acts of 1950, or section 9 of chapter 40 of the General Laws, as existing 
immediately prior to the effective date of said chapter 343 of the Acts of 
1949? 

"3. Is the local post of the American Veterans of World War II, 
AMVETS, Department of Massachusetts, in the To^^^l of Danvers, which 
post has not been in existence for three years and which post was 7iot or- 
ganized on or prior to the effective date of chapter 343 of the Acts of 1949, 
ehgible for quarters under either section 9 of chapter 40 of the General 
Laws, as most recently amended by chapter 303 of the Acts of 1950, or 
section 9 of chapter 40 of the General Laws, as existing immediately prior 
to the effective date of said chapter 343 of the Acts of 1949?" 

As of the year 1937 the first paragraph of G. L. (Ter. Ed.) c. 40, § 9, as 
amended, provided that a city or town may, for the purpose of furnishing 
suitable headquarters for a post or posts of the American Legion and of the 
Veterans of Foreign Wars of the United States, and for chapters of the 
Disabled American Veterans of the World War, and for posts of the Jewish 
War Veterans of the United States and La Legion Franco-Americaine des 
Etats-Unis d'Amerique, lease for a period not exceeding five years premises 
to be under the direction of the posts or chapters, subject to regulations 
made in said cities or to^vns. Another portion of said section 9 provided 
that a city or town may also appropriate money to furnish suitable head- 
quarters for posts of any incorporated organization of veterans who served 
in the military or naval service of the United States in time of war or in- 
surrection in addition to those above specified, if a petition requesting such 
an appropriation and signed by not less than five per cent of the voters is 
filed with the city or town clerk. 

In 1946 and 1947 the Legislature added to the posts mentioned in said 
first paragraph of section 9 the following: "chapters of the Military Order 
of the Purple Heart," "posts of the American Veterans of World War II, 
AMVETS," "posts of the Italian- American War Veterans of the United 
States" and "posts of the American-Portuguese War Veterans' Associa- 
tion." 

In early 1949 the Legislature substituted " Franco- American War 
Veterans, Inc." for "La Legion Franco-Americaine des Etats-Unis d'- 
Amerique." 

A substantial change was made hi 1949 when St. 1949, c. 343, efi^ective 
August 23, 1949, substituted a new first paragraph for section 9, which 
provided that a city or town, for the purpose of furnishing suitable head- 
quarters for such post or posts of "any veterans' organization incorporated 
or chartered by the congress of the United States, as have been in opera- 
tion for at least three years," may lease for a period not exceeding five 
years premises which shall be under the direction of such posts, subject 
to regulations made in said cities or toA\nis. Section 2 of said chapter 343 
provided that "the provisions of section nine . . . as existing immediately 



P.D. 12. 55 

prior to the effective date of this act, sliall continue to apply in a city or 
town with respect to the veterans' organizations specified in said provi- 
sions as so existing." 

By this saving clause posts of all those organizations named above con- 
tinued to be eligi]:)le if the organization was in existence prior to August 
23, 1949. It was not necessary that the post itself he hi existence before 
said date. The savhig clause specifically refers to the veterans' organi- 
zation as such. The Legislature undoubtedly contemplated that new 
posts of the parent organization would be established in different cities or 
towns. 

Statute 1949, c. 563, instead of striking out and substituting for the first 
paragraph of section 9, as the prior amendments do, actually strikes out 
all of said section 9, so that while it still provides for furnishing for a period 
not exceeding five years headquarters for posts of any veterans' organiza- 
tion incorporated or chartered by the Congress of the United States as 
ha^'e been in operation for at least three years, it nevertheless makes no 
provision for furnishing headquarters to posts of incorporated orgajiiza- 
tions of veterans (other than, those incorporated by Congress) who ser\-ed 
in time of war or insurrection and which secured approval of five per 
cent of the voters. By reason of chapter 563, if a particular veterans' 
organization was not named in the aforesaid section 9 of chapter 40 as 
effective prior to August 23, 1949, any post thereof seeking quarters under 
sectioji 9 would be obliged to establish that the veterans' organization was 
hicorporated or chartered by Congress and that the post had been in 
operation for at least three years. 

Chapter 563, however, did not destroy the saving clause enacted by 
section 2 of St. 1949, c. 343. Consequently, any post of any organization 
named hi section 9 as of August 23, 1949, would be eligible for quarters, 
even though the post was established after said date. 

I therefore answer your three questions in the aflftrmative. 

Very truly yours, 

Francis E. Kelly, Attorney General. 



INDEX TO OPINIONS 



licenses 



PAGE 

Absence, leave of; resignation; civil service 24 

Administration, Commissioner of; rules and regulations affecting vacations 

employees of the General Court 

Civil service; leave of absence; resignation 

Civil Service Commissioners; petitions under G. L. (Ter. Ed.) c. 31, § 2 

Commitment; vagrancy; State Farm 

Contempt, conviction for; pardoning power 
Dependents, annuities to; firemen; foreign divorce decree 
Divorce decree, foreign ; firemen; annuities to dependents 
Eminent domain ; taking of land of fire district . 
Employee : 

Liability for alleged overpayment; Division of Employment Security 

Reinstatement; seniority; Division of Employment Security 
Employment Security, Division of; employee: 

Liability for alleged overpayment 

Reinstatement; seniority 

Fire district, taking land of; eminent domain 

Firemen; annuities to dependents; foreign divorce decree 

Foreign insurance company ; doing business in Massachusetts ; 

General Court, employees of; rules and regulations affecting vacations . 

Indeterminate sentence; commitment for being a tramp; State Farm . 

Licenses; foreign insurance company; doing business in Massachusetts 

Maritime Academy; grant of right of way to municipality 

Massachusetts, University of; investment of funds and securities . 

Municipality, grant of right of way to ; Maritime Academy . 

New Bedford, Woods Hole, Martha's Vineyard and Nantucket Steamship 

Authority; proposed rates; public utilities 11 

Nicknames, use of; presidential preference of voters at presidential primaries 49, 51 
Overpayment, liability for alleged; employees; Division of Employment 

Security 41 

Pardoning power; conviction for contempt 32 

Petitions under G. L. (Ter. Ed.) c. 31, § 2; Civil Service Commissioners . 39 
Presidential preference of voters at presidential primaries; use of nicknames 49, 51 
Primaries, presidential; expression of preference by nickname . . 49,51 
Public Safety, Commissioner of; rules and regulations for State Police; 

effect of G. L. (Ter. Ed.) c. 7, § 7 45 

Public Works, Department of; speed regulations; publication and hearing . 36 
Purple heart; soldiers and sailors; benefits under G. L. (Ter. Ed.) c. 59, § 5 47 
Quarters for veterans' organizations; eligibility for under G. L. (Ter. Ed.) 

c. 40, § 9 53 

Rates proposed by New Bedford, Woods Hole, Martha's Vineyard and Nan- 
tucket Steamship Authority 11 



37 
24 
39 
12 
32 
19 
19 
22 

41 
16 

41 
16 
22 
19 
25 
37 
14 
25 
18 
42 
18 



58 P.D. 12. 

PAGE 

Right of way, grant of to municipality; Maritime Academy . 18 

Sailors and soldiers; purple heart; benefits under G. L. (Ter. Ed.) c. 59, § 5 47 

Securities, investment of; University of Massachusetts 42 

Seniority; reinstatement; employee; Division of Employment Security 16 

Soldiers and sailors; purple heart; benefits under G. L. (Ter. Ed.) c. 59, § 5 47 

Speed regulations; publication and hearing; Department of Public Works 36 
State Farm; 

Commitment for being a tramp ; indeterminate sentence .... 14 

Commitment; vagrancy 12 

State Police, rules and regulations for ; Commissioner of Public Safety ; effect 

of G. L. (Ter. Ed.) c. 7, § 7 45 

Tramp, commitment for being; State Farm; indeterminate sentence 14 

Vacations, rules and regulations affecting; employees of the General Court 37 

Vagrancy; State Farm; commitment 12 

Veterans' organizations; eligibility for quaiters under G. I.. (Ter. Ed.) c. 40, 

§ 9 53 



':■ "^ 



e^