Public Document No. 12'
Ciie Commontoealtl) of i&assatftmttts
REPORT
ATTORNEY GENERAL
Year ending June 30, 1953
Public Document No. 12
Cbe Comniontnealtb of S@as0acbusetts
REPORT
ATTORNEY GENERAL'^^^fti^
Year ending June 30, 1953
Ptjblicatio.v ok this Document Approvbd nr GtORr.K J. Citoxty, State Pirchasing Aoe.vt.
900-10-54-913462.
siAK mm OF MJissiiRtttsim
JAN 3 1555
&ME HOUSE, SC^ON
MASS OPnciALS
/9S3
A
Cte Commontoealti) of 0^as$acj)U0ett$
Department of the Attorney Gener.vl,
Boston, December 2. 1953.
To the Honorable Senate and House of Representatives.
I have the honor to transmit herewith the report of the Department
for the year ending June 30, 1953.
Respectfully submitted,
GEORGE FINGOLD,
Attorney General.
Cbe Commontoealti) of ^a$$acf)usett0
DEPARTMENT OF THE ATTORNEY GENERAL
State House
Attorney General
CJEORCip: FIXGOLD
Assistant Attorneys General
SlDNKY A. AlSNKU JaMES F. MaHAX
Harris J. Booras Johx V. Phelan -
Malcolm M. Doxahue Harris J. Reynolds
Casi'er T. Doriman William J. Robinson
Joseph H. Elcock, Jr. Arnold H. Salisbury^
Fred Winslow Fisher Louis Scerra^
DoRicE S. Grace Barnet Smola
Saul Gurvitz Norris M. Suprenant
Alfred E. LoPresti ^ Andrew T. Trodden
Assistant Attorneys General assigned to Department of Public Works
Vincent J. Celia^ Floyd H. Gilbep.t
James C. Gahan, Jr. David L. Winer
Special Assistant Attorneys General assigned to Department of Public Works
Frank Ramacorti^ Max Rosenblatt^
Assistant Attorneys General cssigned to Division of Employment Security
Stephen F. LoPiano, Jr. Sydney Zuker
Assistajit Attorneys General assigned to State Housing Board
Milton Abelson Keesler H. Montgomei{y*
Ray W. Guild ^ Hugh Morton*
Assistant Attorney General assigned to Veterans' Division
Fred I,. True. Jr.
Assistant Attorney General Assigiied to X. Y., X. II. S: If. R.R. Investigation
!Matthev.' S. He.\phv
Secretaries to the Attorney General
XoRALVN E. Moore
Eleanor A. Burns
Chief Clerk to the Attorney General
Harold J. Welch
Adniinistrative Legal Consultant to the Attorney General
Ja.mes J. Kelleher*
1 Rcsisrned, Feb. 13, 1953. » Appointed, Apr. I, 1953.
-' .Appointed, Feb. 16, 1953. « .\ppointed, .Ian. 22, 1953.
3 Appointed, Feb. 1, 195.3. ' Resitrned, .March 31, 1953.
♦ On leave of absence. » .\ppointed, Apr. 6. 1953.
STATEMENT OF APPROPRIATIONS AND EXPENDITURES
For the Period from July 1, 1952, to June 30, 1953.
A pprojyriations.
Attorney General's Salary
Administration, Personal Services and Expenses
Claims, Damages by State Owned Cars
Small Claims .....
Investigation of Old Colony Division of New
Hartford Railroad ....
Veterans' Legal Assistance
Total
Expenditures
Attorney General's Salary ...
Administration, Personal Services and Expenses
Claims, Damages by State Owned Cars
Small Claims .....
Investigation of Old Colony Division of New-
Hartford Railroad ....
Veterans' Legal Assistance
York, New Haven and
York, New Haven and
Total
$12,000 00
268,313 00
35,000 00
15,000 00
15.000 00
20.000 00
$365,313 00
$12,000 00
249,896 41
35,000 00
15,000 00
13,529 23
19,652 73
$345,078 37
Financial statement verified (under requirements of c. 7, § 19, of the General Laws),
December 1, 1953.
By JOSEPH \. PRENNEY.
/'or the Comptroller.
Approved for puV)lishing.
R.ALPH E. HOUGHTON.
Acting Comptroller.
Cf)e Commontoealt!) oC a^a0$ac|)U0etti9!
Department of the Attorney General,
Boston, December 2, 1953.
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 recjuiring the attention of this Department during the fiscal
year ending June 30, 1953, totaUng 16,855, are tabulated as follows:
Extradition and interstate rendition
I^and Court petitions .....
Land damage cases arising from the taking of land
Department of Public Works
Metropolitan District Commission .
Department of Education
Department of Mental Health
.Armory Commission
Department of Conservation .
New Bedford Textile Institute
Miscellaneous cases, including suits to requir
tions and individuals and the collection of money due the Commonwealth
Estates involving application of funds given to public charities
Settlement rases for support of persons in state hospitals . . . .
Pardons :
Investigations and recommendatif>ns in accordance with G. T.. (Ter. Fd.)
c. 127 § 152, as amended ....
Workmen's compensation cases, first reports .
Cases in behalf of Division of Pmployment Security
Cases in behalf of Veterans' Division
e the filing of returns by corpora-
105
115
977
127
2
2
1
1
1
5.593
966
63
143
4,928
652
3,179
The Department of the Attorney General is the legal counsel for a
multi-billion dollar business ■ — ■ the Commonwealth of Massachusetts. As
such, its duties are manifold and varied, and the already grave and heavy
responsibilities of the office of Attorney General are ever increasing.
The duties of the Attorney General fall into the following general cate-
gories :
To render legal opinions to the Go^^ernor, the Executive Council, the
Legislature and the various State departments, officers and commissions.
To represent the Commonwealth and the various State departments,
officers and commissions in all judicial proceedings.
To consult with and advise, as chief law enforcement officer of the
Commonwealth, all of the District Attorneys.
8 P.D. 12.
To examine and approve town by-laws.
To supervise the handling of charitable trusts.
To supervise the rendition or extradition of fugitives from justice.
To bring information to the proper courts when necessary in the public
interest.
To make investigations into the conduct of various agencies of the
Commonwealth.
To administer the law^ and vigorously prosecute all violators.
After I assumed office on January 21, 1953, I assembled a group of
Assistant Attorneys General and law clerks on whose character, ability,
experience and training I could rely, to assist me in the solution of the
numerous and intiicate legal problems which arise daily during the con-
duct of the State's business. The work of these Assistants has been
divided into no less than 146 different categories • — alphabetically, from
abatements to the Youth Service Board. Many separate divisions have
been formed within the Attorney General's office, although all are inte-
grated as a whole.
Eminent Domain Division.
One of the most vital problems confronting me at the start of my ad-
ministration was the highly publicized and controversial issue of disposi-
tion of land damage claims. My department was confronted with such
an enormous backlog of dormant claims awaiting disposition by trial or
otherwise that it was self-evident that an effective and immediate solu-
tion had to be found. The solution to this pressing problem was directed
toward the following objectives:
(a) The restoration of the confidence of the judiciary, the public and
the legal profession in the fair, efficient and equitable disposition of land
damage claims.
(h) The acceleration of payment of damages to the landowner and the
prompt termination of interest charges running against the Common-
wealth.
To find such a solution and attain the foregoing results, I inaugurated
a series of conferences with members of the judiciary and of the legal pro-
fession and the following organization and procedure was adopted:
1. The establishment of a separate "Land Damage Division" within
the Department of the Attorney General and the staffing of this division
with six Assistant Attorneys General whose activities are exclusively de-
voted to the disposition of land damage litigation.
2. The review of every current land damage claim and the preparation
of complete and accurate records of all cases in this division.
3. The creation of a new standardized procedure for the investigation,
processing, settlement or trial of these claims, including the filing of 56
carefully prepared interrogatories and conferences with employees and
officials of the Department of Public Works and with real estate experts
employed by said department.
P^4. The determination of a settlement figure by a panel of Assistant
Attorneys General.
P.D. 12. 9
5. The holding of conferences with attorneys for the landowners in an
effort to effect settlements.
6. The attendance b}^ members of the division at numerous pre-trial
conferences held by judges of the Superior Court in many counties of the
Commonwealth, resulting in the disposition of many cases by settlement.
7. The recording in the public records of the Superior Court for each
county of the dollar amount of the settlement reached in each case.
8. The recommendation to the Commissioner of the Department of
Public Works that his department adopt the procedure authorized by
G. L. (Ter. Ed.) c. 79, § 39, in order to accelerate payment of damages to
the landowner and to reduce the amount of interest running against the
Commonwealth. This section, which had not been previously utilized,
provides that Department of Public Works may make a written offer to
the landowner before trial, wliich offer the latter may accept in partial
or full satisfaction of his claim or reject. The running of interest on the
amount of the offer stops on the date of the offer regardless of the response
of the landowner, but the landowner can take the amount offered in order
to find a new home or business location and litigate the difference between
the amount of the offer and the amount of his claim.
The effectiveness of my entire program is well demonstrated by the
fact that the number of land damage cases disposed of during my first five
months in office exceeds the total number of cases disposed of in the last
two fiscal years of the previous administration. The cases disposed of
through June 30, 1953, represent claims by the petitioners in excess of
seven million dollars. The land damage division disposed of these cases
by trial and settlement at a cost of $3,037,401.00. In addition to this
difference of more than four milUon dollars, the disposition of these cases
produced a saving of approximately $465,000 in interest charges.
Another substantial saving has been effected by the elimination of jury
trials and expenses by the settlement of cases at the office or judicial pre-
trial conferences, and this figure is in excess of one milfion dollars.
The new approach to the problem of land damage htigation has broken
the deadlock on all civil litigation in the Superior Courts of the Common-
wealth. By statute, land damage cases may be advanced for speedy trial
and thereby take priority over other civil matters. With the large number
of unfinished land damage claims clogging the court dockets, many Utigants
involved in other civil controversies were being unduly delaj^ed in obtain-
ing a judicial determination of their legal rights and obfigations. Such a
situation gave rise to much criticism of our judicial system. The accel-
erated program of the Land Damage Division in my office has served to
break the deadlock and thus reduce the time lag for all civil litigation.
The foregoing statistics, the expression of confidence on the part of the
public and the members of the legal profession, the advice and co-operation
of the judiciary, the acceleration of payments to the landowners and the
reduction of interest charges against the Commonwealth are the most
striking evidence of the progress made in solving the problem of land
damage htigation.
10 P.D. 12.
Defective Delinquents.
.\.n important function of the Attorney General's Department concerns
the continued detention, the release, or the return to confinement of de-
fective dehnquents in State institutions. Recentl}'-, and in growing num-
bers, such inmates have been obtaining their freedom on writs of habeas
corpus on the ground that they had originally been illegally committed.
Some of these petitioners were committed as many as thirty or more years
ago, and it has been impossible in many instances to ascertain the true
circumstances of their original commitments. Possible witnesses had died.
Relatives were non-existent in some cases. And in others, court officials,
because of the press of their duties, could not remember the details of any
individual case.
As a result, many persons were being released by the courts, upon
procedural grounds, whose ability to roam at large constituted such a
menace to the people of the Commonwealth — and to their children —
that I became greatlj^ disturbed. A change in the law regarding defective
delinquents was imperative and, accordingly, after thorough research b}'
my Assistants, I filed three bills with the General Court to remedy this
intolerable situation.
The first of these was an emergency law entitled, "An Act relative to
the recommitment to a defective delinquent department of certain per-
sons so committed," the first section of which provides that any person
held as a defective delinquent whose original commitment shall be found
to have been procedurally improper, may be recommitted, at the discre-
tion of the court, for thirty-five days' observation at the State Farm.
The second section of this measure provides that the Attorney General or
any District Attorney may file an application in the Superior Court for
the commitment to a department for defective delinquents of any person
heretofore released because of a judicial determination that his original
commitment was procedurally improper. This measure was enacted by
the Legislature just prior to its prorogation.
The second proposed measure was for a resolve authorizing and dii'ect-
ing the Department of Correction to investigate and study the commit-
ment of all persons held as defective delinquents to determine if they were
committed illegally and, if so, do they show a tendency to become
dangerous to the welfare of the Commonwealth.
The third proposed measure was for a resolve establishing a special com-
mission to investigate and study the laws relating to the commitment,
detention, care and discharge of insane and feeble-minded persons, defec-
tive delinquents, and other persons who may be confined in institutions
for the treatment of mental disorders.
These three measures represented the combined thinking of the Attor-
ney General, his Assistants, the Commissioner of Corrections, the chair-
man of the Youth Service Board, penal institution chaplains of all faiths,
heads of institutions and District Attorneys.
When I took office, there were 379 male and 94 female defective delin-
({uents committed to the State Farm at Bridgewater and other institu-
P.D. 12. 11
tions throughout the Commonwealth. Of them, 27 males and one female
obtained their releases before the new law went into effect. No petitions
for habeas corpus brought by inmates of defective delinquent departments
were heard by the courts under its provisions before the end of the past
fiscal year, but its value to the people of the Commonwealth has since
become apparent.
Criminal Division.
Shortly after I took office, it was found necessary to establish a criminal
division within the department because of the complaints and many re-
quests for assistance received from interested citizens all over the Com-
monwealth. I promptly did so, notwithstanding the fact that I have
confidence in the overwhelming majority of our local law enforcement
officers, so that this department would be prepared to move and move
rapidly in case there might appear to be any disposition on the part of any
officials not to enforce the laws.
After consultation with the Assistants assigned by me to this division,
I sponsored a bill in the Legislature to outlaw the game known as "skilo",
which actually is another form of beano. I recommended that the law be
made effective immediately because during the ninety days before it w^ould
otherwise become operative under normal procedure, millions of dollars
could have passed into the hands of the operators of skilo, who naturally
would have stepped up the tempo of their operations. The General Court
adopted my suggestion, and the Governor approved the measure as an
emergency enactment.
Another matter which concerned this division early in my administra-
tion arose out of a petition for habeas corpus which had been filed in the
United States District Court by a prisoner in the State Prison, who al-
leged that the circumstances of his trial, some four years ago, were such
that he had been convicted and imprisoned without due process of law.
Prior to the filing of his petition in the Federal Court, he had filed a peti-
tion for a writ of error in the Supreme Judicial Court, seeking a reversal
of his conviction upon the same grounds. A single justice of that court
had denied this petition, and another single justice had denied the indi-
gent prisoner's motion that he be allowed to bring the matter before the
full court upon the original papers on file, rather than to be required to
pay the cost of printing the appellate record. The prisoner had thereupon
filed his petition in the Federal court, a hearing was had there, and the
Federal judge had ordered his release. These events had all taken place
prior to mj'- assuming office as Attorney General, and what confronted the
criminal division in January, 1953, was an appeal which had been taken
from the Federal judge's decision.
I felt the matter to be of prime importance, for never before had an
inferior Federal court ordered the release of a prisoner who had been com-
mitted by the criminal law processes of the Commonwealth, and it was
my strong conviction that, if any injustice had been done to the petitioner,
the full court of the Supreme Judicial Court of the Commonwealth should
be the tribunal so to rule. Accordingly, I directed the criminal division
12 P. D. 12.
to prosecute the appeal before the United States Court of Appeals with
all possible vigor.
As a result, that court, agreeing with my contention, held the matter
in abeyance upon its docket, pending a further attempt by the prisoner to
obtain a definitive ruling from the full court of the Supreme Judicial Court.
See O'Brien v. Lindsey, 204 F. 2d 359. As suggested by me, that court
itself then established a precedent by granting the motion previously de-
nied by the single justice, and the matter is presently under consideration
by the full coiu't.
Crime Commissiox.
The Department of the Attorney General sponsored a bill for the es-
tablishment of a Crime Commission, to consist of five members appointed
by the Governor, to investigate the relationship between organized crime
and any unit of government anywhere in the Commonwealth. The com-
mission, under my bill, was to examine the relationship between the gov-
ernment of the Commonwealth and local criminal law enforcement, and I
advocated an appropriation of $100,000 to enable the commission to carry
out its work in the most thorough manner possible.
A Crime Commission was established by the General Court to consist
of seven members, three members from the House of Representatives, two
from the Senate, and two appointed by the Governor. The amount ap-
propriated for their study was $10,000.
WoRCESTEK Disaster.
Immediately following the disastrous tornado which struck the Worces-
ter area on June 9, 1953, a special branch of this department was opened
in the Worcester County Courthouse Annex, and four Assistant Attorneys
General were sent there to assist in the solution of the various problems
of the disaster ^'ictims.
The need for such an office became apparent after hundreds of persons
telephoned or wrote this office asking for advice and assistance of various
kinds, and help in establishing it was swiftly given by the Worcester
County Commissioners. The office was -Jcept open seven days a week,
and all advice and help given was free. It was still operating at the close
of the fiscal year.
Veterans' Services.
As required by law, a veterans' division has been established in this
office to aid veterans with their problems, and more than three thousand
have benefited by its work. In addition, the veterans' division has given
advice and assistance to various veterans' organizations as well as to
State, county, city and town officials concerned with such problems.
I served as a member of the three-member commission which directed
the distribution of the boinis payments 1o 162,000 Massachusetts \'eterans
of the recent action in Korea.
An appointee of the Attorney General sits with the Veterans' Bonus
Appeals Board.
P.L). 12. 13
Charitable Trusts.
Under G. L. (Ter. Ed.) c. 13, § 8, the Attorney General is given the
duty and responsibility of enforcing the due application of funds given or
appropriated to public charities and of preventing breaches of trust in
the administration thereof. Approximately one thousand matters were
handled during the last ten months. These involved the examination and
approval of accounts by executors and trustees and appearances upon
petitions for allowance of wills, for instructions, for the appUcation of the
cy prcs doctrine, for the remo^'al of trustees, and for the rendering of ac-
counts.
A preliminary research and sur\ey of charitable trusts and of various
pending cases was also commenced during the period, and it was revealed
that thousands of matters involving charitable trusts requii'e further care-
ful investigation and enforcement. The establishment of a division of
charitable trusts in the office of the Attorney General will be recommended
by this department to the General Court.
Metropolitan District Commission.
In March I was asked by His Excellency the Governor to make an in-
vestigation of certain charges of payroll padding in the Metropolitan Dis-
trict Commission during the years 1949-1952, inclusive. I reported that
my investigation fully supported the charges, and 1 closed my report
with the following statement:
"I have tried to give you a factual report with reference to the charges
of payroll padding at the Metropolitan District Commission. I believe
these facts do not require me to draw any conclusions since, in my opinion,
they speak for themselves. I therefore conclude this report not with any
recommendations for further legislation — we need no further legislation
— but rather with the simple observation that all we need is a permanent
return and adherence to the basic principles of morality, decency and in-
tegrity in public life."
Department of Public Utilities.
The New England Telephone & Telegraph Company filed on December
10, 1952, new schedules of rates and charges for telephone service in
Massachusetts to become effective January 10, 1953. The company asked
for an increase amounting to $10,225,000. Hearings were held beginning
February 17, 1953, and were still being continued on June 30, 1953, the
end of the fiscal year. The Attorney General's office contended that the
increase in rates and charges should not be more than $4,519,540.
The trial of the case was conducted by this office without any outside
legal aid and without the expenditure of any funds for such legal services
from the $75,000 appropriated by the General Court for the purpose of
conducting the case.
The Attorney General's office was instrumental in having enacted a bill
which changed the procedure of appealing from the decisions, orders or
ruUngs of the Department of Public Utilities to the Supreme Judicial
14 P.D. 12.
Court. Prior to this act, chapter 575 of the Acts of 1953, which amended
G. L. (Ter. Ed.) c. 25, § 5, an appeal on a constitutional matter could be
tried de novo, and the case referred to a master for findings of facts on
evidence already introduced before the Department of Public Utilities,
and in addition evidence which was not presented to that department.
This procedure entailed the expenditure of many thousands of dollars,
clogged the docket of the Supreme Judicial Court, and caused delays some-
times as long as two years in the final determination of the issues. Also,
said section, prior to the amendment, was indefinite and vague as to the
manner of the appeal and put no Umit on the time therefor. As amended,
the statute now provides that the petition for appeal must be filed with
the secretary of the commission within twenty days after the date of the
decision, and that within ten days after such filing, the appealing party
must enter said appeal in the Supreme Judicial Court. No evidence be-
yond that contained in the record may be introduced before the court,
except that when a constitutional matter is involved the court may order
any additional evidence it deems necessary to be taken before the com-
mission, which will conduct hearings and report its findings to the court.
Fire Protection for Sick and Aged confined in Homes and
Institutions.
Late in March, 1953, a disastrous fire in Florida took the fives of thirty-
three persons confined to a nursing home in that State. The possibihty
that such a catastrophe might happen in this Commonwealth was one that
at once came to mind. Accordingly, I immediately called a conference
with responsible State officials to discuss the situation. A few days later
a meeting was held in my office attended by some fifty-five fire chiefs from
all over the State, and shortly thereafter the matter was further reviewed
with those principally charged w^ith the responsibifity for safeguarding the
sick and aged confined to hospitals, homes and other institutions from the
dangers of fire. All of these officials, as well as representatives of the
Massachusetts Federation of Nursing Homes, accorded this office their
fullest co-operation. In addition, a state-wide survej^ of conditions in
such institutions was made by means of a questiomiaire circulated to the
chiefs of the fire departments of each city or town.
As a result, and as a first step towards reaching a solution to this prob-
lem, I caused to be filed a bill and a resolve for a studj^ These were heard
by the Committee on Public Safety on May seventh, and a special com-
mission was created to carry forward the study. In its investigation, the
commission requested the assistance of this office, and I have endeavored
to co-operate with them in every respect to the end that our sick and aged,
confined to institutions of various sorts, may have the utmost in protec-
tion against the terrible dangers inherent in fire in such places.
John Bowen Co., Inc.
As a result of a decision of the Supreme Judicial Court on April 8, 1952,
suit has been commenced against John Bowen Co., Inc., to recover for the
P.U. 12. 15
CommoM wealth a total of $789,712.20 paid to this company under the
contract which the Supreme Judicial Court held to be illegal because not
awarded in accordance with the bid statute, G. L. (Ter. Ed.) c. 149,
§§ 44A-44D, inclusive.
John Bowen Co., Inc., has filed a cross suit seeking to recover a balance
of $633,247.23 alleged to be due over and above the $789,712.20 referred
to abo\e for the fair value of work.
State Housing Board.
The functions of the Attorney General's office with this board, to which
three Assistant Attorneys General were assigned, fall into the following
general categories:
1. Rendering written opinions on general legal problems confronting
the board.
2. Review for approval of title abstracts and other problems involving
purchase or sale of land.
3. Administration of Organization Transcripts of approximately 88 ac-
tive local authorities.
4. Review for approval of original and refunding note and bond issue.
5. Attendance at hearings involving contract disputes, making findings
and writing decisions.
6. Litigation and trial w^ork.
Reviews of approval of note and bond issues were made amounting to
$50,993,000. The only bond issues approved this year were those which
bore the previous year's date and could not be approved earlier because of
defects in the organization of the local authorities which this office cor-
rected. Xo projects were permanently financed during the first half of
1953 because of the high interest rates prevailing on long-term obligations.
Divisiox OF Employment Security.
Two Assistant Attorneys General were assigned to assist this important
agency, and they have successfully handled cases against employers who
were found to have failed to pay their just tax. In these cases a total of
$45,912.42 was collected up to the close of the fiscal year.
In addition, the two Assistants have appeared before the Supreme Ju-
dicial Court and the United States Court of Appeals to represent this
dixnsion.
Insurance and Motor Vehicles Appeal Boards.
An Assistant Attorney General was assigned to attend the hearmgs of
the Insurance Appeal Board and the Motor Vehicles Appeal Board and
from January 21 through June 30, 1953, he attended a total of 1,733 such
hearings. Normally, however, the number of such hearings increases to
a great degree in the final six months of the year.
In the past. Assistant Attorneys General have been assigned to this
work for only a few days of each week. This year the load became so
heavy that an Assistant was assigned full-time to the job, which also en-r
tails considerable traveling throughout the State.
16 P.D. 12.
Public Administration.
There are 61 public administrators in the Commonwealth, whose doings
and accounts Avere supervised and passed upon by this department. In
addition, accounts of prior public administrators, who had failed to close
estates in their hands, were examined. About one thousand matters in-
volving accounts and various petitions have been handled by this depart-
ment. Numerous consultations, conferences and court appearances were
involved.
Town By-Laws.
By virtue of the provisions of G. L. (Ter. Ed.) c. 40, § 32, before a town
by-law takes effect it must be approved by the Attorney General. The
purpose of this provision is to provide a friendly oversight of local legisla-
tion to the end that the inhabitants affected may have some assurance of
the validity and propriety of local enactments without waiting for litiga-
tion to produce an adjudication. Realizing the uncertainty and em-
barrassment entailed by any delay in this department in acting upon by-
laws sent here for approval, it has been my policy to see that each by-law
sent in is studied, acted upon and returned wdth all possible speed.
Contributory Retirement Appeal Board.
General Laws (Ter. Ed.) c. 32, § 16, provides for an unpaid Contributory
Retirement Appeal Board consisting of three members, one of whom is
designated by the Attorney General. This board hears appeals from de-
cisions of the various city, town, county and State retirement boards, and
its work seems to be increasing steadily. Many pubUc employees, claim-
ing to have been totally and permanently incapacitated bj^ reason of ac-
cidents happening in the course of their employment, claim appeals from
the decisions of the local boards denying them relief. Much time is con-
sumed in a painstaking hearing and study of each of these appeals.
Conclusion.
In conclusion, I wish to express my appreciation to His Excellenc}'^ the
Governor of the Commonwealth, to the Legislature and to all the other
constitutional officers of the State government for their helpful co-opera-
tion during the first quarter of my administration.
I also wish to express my appreciation to the District Attorneys and
State and local police for their co-operation in continuing the fight against
crime and corruption.
I further would like to commend my Assistants who have served faith-
fully and well and in many instances above and beyond the call of duty.
I am grateful for the support and aid rendered me b}'^ the civil service
employees and others in the Department of the Attorney General, includ-
ing the chief clerk and my chief and confidential secretaries.
I am highly conscious of the honor and privilege accorded me in serving
the Commonwealth of Massachusetts in the high office of Attorney' Gen-
eral, and I submit this annual report with a deep sense of humifity and
gratitude. GEORGE FINGOLD,
Attorney General.
OPINIONS.
Property Exeni'pt Jroni Taxation — Meaning of ''Household Furniture and
Effects."
Aug. 1, 1952.
To the Ilonorahle the House of Representatives of the Commonwealth of
Massachusetts.
The Attorney General respectfully submits the following answers to
the questions set forth in an order adopted by the House of Representa-
tives on July 3, 1952. The questions are as follows:
"1. Under the terms of St. 1951, c. 640, what classes of personal prop-
erty are included in the increase in the amount of exemption provided for
in said act?
"2. Under the terms of said act, what exceptions to such classes, if
any, are provided in said act?
"3. What classes of household luxuries and necessities, and what
classes of other types of personal property, such as trade or occupational
goods or tools, or items of luxury or necessity other than household goods,
are included in or excluded or excepted from the provisions of said act?
"4. Do television sets come within the exceptions to the provisions of
said act?"
Statute 1951, c. 640, provides as follows:
"Section 1. Section 5 of chapter 59 of the General Laws is hereby
amended by striking out clause I'wentieth, as most recently amended by
chapter 310 of the acts of 1947, and inserting in place thereof the follow-
ing:—
"Twentieth, The wearing apparel, farming utensils and cash on hand
of every person and the tools of his trade if a mechanic, to any amount;
and to an amount not exceeding a total value of five thousand dollars hi
respect to all the articles hereinafter specified in this (dause, his household
furniture and effects, including jewelry, plate, works of art, musical in-
struments, radios and garage or stable accessories, in storage in a public
warehouse kept and maintained under chapter one hundred and five or
used or commonly kept in or about the dwelling of which he is the owner
of record or for the use of which he is obligated to pay rent, and which is
the place of his domicile, and boats, fishing gear and nets owned and ac-
tually used by him in the prosecution of his business if engaged exclusively
in commercial fishing; provided, that in the case of household furniture
and effects the combined exemption of husband and wife shall not exceed
five thousand dollars; provided, that failure to compty with the provisions
of sections twenty-nine and sixty-one relative to the filing of a list of his
personal estate with the assessors shall not be a bar to an abatement of
the tax, if anj', imposed upon such personal estate."
18 P.D. 12.
Let 118 examine the pertinent legislative history of this statute.
Prior to 1931 the exemption covered "the wearing apparel and farming
utensils of every person ; his household furniture not exceeding one thou-
sand dollars in valuation; and the necessary tools, not exceeding three
hundred dollars in value, of a mechanic."
Statute 1931, c. 75, changed the exemption to read:
"The wearing apparel, farming utensils and cash on hand of everj' per-
son and the tools of his trade if a mechanic, to any amount; and to an
amount not exceeding a total value of one thousand dollars in respect to
all the articles hereinafter specified in this clause, his household furniture
and effects, including jewelry, plate, works of art, musical instruments,
radios and garage or stable accessories, used or commonly kept in or about
the dwelling which is the place of his domicile, and boats, fishing gear and
nets owned and actually used by him in the prosecution of his business if
engaged exclusively in commercial fishing."
General Laws (Ter. Ed.) c. 59, § 5, employs the same language appear-
ing in St. 1931, c. 75.
Statute 1937, c. 132, amended said Clause Twentieth by inserting after
the words "stable accessories" the following words: "used or commonly
kept in or about the dwelling of which he is the owner of record or for the
use of which he is obligated to pay rent."
Statute 1941, c. 482, added after the words "stable accessories" the
following words: "in storage in a public warehouse kept and maintained
under chapter 105, or."
Statute 1947, c. 310, amended said Clause Twentieth by adding at the
end thereof the following words: "provided that in the case of household
furniture and effects the combined exemption of husband and wife shall
not exceed one thousand dollars."
Statute 1951, c. 640 (about which you inquire), amends said Clause
Twentieth by increasing the exemption from one thousand dollars to five
thousand dollars; and providing that failure to file a list of one's personal
estate in compliance with sections 29 and 61 (of chapter 59) shall not be
a bar to an abatement.
It results from an examination of the above statutory provisions that
the words which are to be construed and which are pertinent to your
questions have remained the same ever since their appearance in St. 1931,
c. 75.
Said words are "the wearing apparel, farming utensils and cash on hand
of every person and the tools of his trade if a mechanic"- "his household
furniture and effects, including jewelry, plate, works of art, musical in-
struments, radios and garage or stable accessories"; and "boats, fishing
gear and nets owned and actually used by him in the prosecution of his
business if engaged exclusively in commercial fishing."
In Day v. Lawrence, 167 Mass. 371, the court discussed the statutory
exemption existing in 1896. The statute then provided "The following
property . . . shall be exempted from taxation .... The wearing ap-
parel and farming utensils of every person; his household furniture, not
exceeding one thousand dollars in value; and the necessary tools, not ex-
ceeding three hundred dollars in value, of a mechanic."
On page 373 the court said;
"The words 'household furniture' have been long in use in our tax acts,
in statutes concerning attachments and executions, in testamentary ^^Tit-
P.D. 12. 19
ings, and in common speech. The only room for construction in arriving
at the meaning of the statute is in ascertaining the sense to be given to these
words. That as there used thoy do not mean necessary furniture only, is
shown by the provisions of the Public Statutes relating to the collection of
taxes by distress, or seizure and sale of goods, and to property exempt
from execution ... In common speech, the words include all the furni-
ture, furnishings, and utensils of the dwelling, and in the construction of a
will they have been held to include bronzes, statuary, and pictures used
to adorn a home, if in accord with the means and style of living of the
householder."
In Richardson v. Hall, 124 Mass. 228, at page 238, the court cited with
approval an old English case which held that household furniture com-
prised everything that contributed to the use or convenience of the house-
holder or to the ornament of the house.
In Trull V. Lowell, 245 Mass. 45, at page 46, the court quotes with
approval the language in an early case as follows:
"It is not to be supposed, that it was designed to comprehend within
the terms tools (which are properly small articles used by the hand) compli-
cated machinery or expensive utensils, which may, of themselves, be of
great value."
Since 1931 the exemption as to household furniture and effects is more
comprehensive in its application than the exemption caUing for only house-
hold furniture.
In Winbimi's Will, 247 N. Y. Supp. 584, the court said: "Household
effects are universally understood to mean all the furnishings of one's
residence."
The case of In re Mitchell's Estate, 38 N. Y. Supp. (2d) 673, interpreting
the words "household effects," held that the test was whether the articles
are or are not used in or by the household or for the benefit or comfort of
the famity; that it is the use to which a thing is put that is the determin-
ing factor.
To the same effect are the cases of Commonwealth v. Glover, 132 Ky.
588, 116 S. W. 769, and Foxall v. McKenney, 9 Fed. Cas. 645.
In view of the above I answer your questions as follows :
1 . I'he classes of personal property included in the five thousand dollar
exemption are:
(a) Household furniture and effects including, but not limited to, jewelry,
plate, works of art, musical instruments, radios and garage or stable
accessories (greater detail will be found in answer to your third question) ;
and
(6) Boats, fishing gear and nets used by one exclusively engaged in
commercial fishing.
"Household furniture and effects" includes any personal property
which can reasonably be said to be part of a household, whether said
household is of low or liigh estate, whether impoverished or affluent.
2. There are no specific exceptions declared in the act. Those classes
of personal property which do not fall within (a) and (6) referred to in
my answer to your first question are not exempted.
3. The classes of personal property which are totally exempt are
(a) wearing apparel, (6) farming utensils, (c) cash on hand and (d) tools
of trade of a mechanic.
20 P.D. 12.
Any personal property, whether luxuries or necessities, will fall within
the exemption of "household furniture and effects" if it can reasonably
be said to be part of a household. If the occupational goods or tools re-
ferred to in your third question are distinctly tools of trade of the tax-
payer as a mechanic, then they are totally exempt, but if the taxpayer is
not a mechanic by trade but possesses as part of his household certain
tools (elaborate or otherwise) and employed by him for experiment, per-
sonal pleasure or household use, said tools are "household . . . effects,"
and fall wdthin the five thousand dollar exemption.
4. lelevision sets are clearly "household . . . effects."
Respectfully yours,
Francis E. Kellv, Attorney (kneral.
Massachusetts Public Building Cotnmission — Dejinition of ^'Project" —
Furnishings, Equipment, etc.
Aug. 21, 1952.
Mr. Joseph P. Gentile, Second Assistant Commissioner, Department of
Mental Health.
Dear Sir: — You request an interpretation of chapter 92A of the General
Laws as inserted by St. 1947, c. 466, and seek a formal opinion on the
following C}uestions :
(1) Does the term "project" as defined by G. L. c. 92A, § 1, as most
recently amended, include furnishings, equipment and other items of per-
sonal property of a moveable nature, which furnishings, equipment, etc.,
are to be purchased and placed within a newly constructed or altered
building or appurtenant structure?
(2) Does the term "project" as defined in question (1) include fur-
nishings, equipment and other items of personal property of a moveable
nature which are to be affixed to newly constructed or altered buildings or
appurtenant structures?
(3) Is a department, office, board or commission of the Commonwealth,
which proposes to furnish or equip a newly constructed or altered build-
ing or appurtenant structure, obliged to obtain the approval of the Massa-
chusetts Public Building Commission for the following:
(a) Any list of furnishings, equipment or other items of a moveable
nature to be placed and used in new buildings or appurtenant structures
before requisitions for the same can be submitted to the Purchasing Bureau?
(6) Any list of such equipment or furnishings which are to be affixed to
as well as placed in such structures?
(c) Any bids received by the Purchasing Bureau and relating to 3 (a)
or (6) prior to placing an order for such equipment or furnishings?
(d) Processing for payment of invoices covering equipment or furnish-
ings procured in connection with 3 (a) or (6)?
In its general tenor the Massachusetts Public Building Commission was
created in 1947 pursuant to the recommendation to the General Court by
the then Governor. He noted that the Emergency Public Works Com-
mission created in 1933 by chapter 365 did not adequately undertake or
continue the replacements of new buildings and capital needs for the pre-
vious several years, with the result that in excess of 75 million dollars of
institutional building had accumulated, and the need for standards of
I'D. 12. 21
procedure in long-range planning was essential in meeting the problem.
Based upon that recommendation the Massachusetts Public Building
Commiission was formed by chapter 466.
in view of the recommendation of the Go\ernor and a careful reading
of the provisions of chapter 461) in connection with the history leading to
the passage of this act, the conclusi(jn is inescapable that the Massachusetts
Public building Commission was charged with the responsibility of pre-
paring and maintaining a long-range program of projects intended to solve
the long accumulated needs for capital constructions. In fact, section 1 of
chapter 92A specifically refers to the "construction of buildings and ap-
purtenant structures, facilities and utilities," including the alteration and
addition to such buildings, etc.
Further on in said section, the commission is retjuired to submit on or
before Septeml)er hfteen of each 3'ear a list of all such projects and its
recommended long-range program of construction thereof and, for the
purpose of enabling an estimated cost to be prepared, to cause preliminary
plans and descriptive specifications to be prepared by architects, engineers,
contractors and consultants as may be necessary.
In the common understanding of these terms as used and the basic
duties of this Commission, it is perfectly clear that the Commission was
not to interest itself in such things as furnishings, equipment, machinery,
etc., to be purchased and placed within the newly constructed or altered
buildings whether the same be hxed or moveable. In view of that, there-
fore, the Commission is not recjuired to give its approval to the personal
property as set forth in your f}uestions or to the processing of payment for
.such items.
Kef erring specifically to St. 11)51, c. 756, which was "An Act to provide
for a special capital outlay program for the Commonwealth," it is set
forth in section 1 thereof that said act was to "provide for a special pro-
gram of construction, reconstruction, alteration and improvement of vari-
ous state institutions and properties, and for the purchase of certain prop-
erty . . ."; and in section 3 thereof it is provided that "no payment shall
be made or obligation incurred in carrying out any of the aforesaid projects
until plans, specifications and contracts therefor, and alterations thereto
subsequently proposed, have been approved by the Massachusetts public
building commission ..." The provisions of sections 1 and 3 of said
chapter 756 are consistent with the basic responsibilities of the Commis-
sion as set forth in chapter 92A in the sense that section 1 provides spe-
cifically for the program of construction, reconstruction, alterations and
improvement of various State institutions and properties and for the pur-
chase of certain property which in a general way covers not only the capi-
tal structures but the moveable or immoveable property of a personal
nature required to outfit said properties and consistent with the stated
responsibilities of the Commission. Specific reference is made in section 3
of the requirement of approval by the Massachusetts Public Building
Commission to the plans, specifications and contracts for the completion
of the buildings covered by such plans and specifications without mention
of the property for which appropriation was made in section 2 and specif-
ically provided for in section 1.
1 answer all your inquiries contained in questions numbered 1, 2, 3 (a),
(b), (c) and (d) in the negative.
Very truly yours,
Francis E. Kelly, Attorney General.
22 P.D. 12.
Veterans' Benefits — Settlement of a Veteran — Prospective Effect cf
Statute.
Aug. 22, 1952.
Mr. Richard F. Tobin, Commissioner oj Veterans' 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 one Roberts, a veteran of World War II, was settled in
Brockton on January 7, 1946, at which time he went to Taunton to live;
that his minor daughter was admitted to the Belchertown State School
November 28, 1947, where she is still confined; that Roberts was steadily
employed and not in need of assistance until May, 1948; that thereafter,
in 1948, 1949 and 1950, he received veterans' benefits; that Brockton
alleges Roberts acquired a settlement in Taunton five years after Janu-
ary 7, 1946, on the ground that St. 1950, c. 493, amending G. L. (Ter.
Ed.) c. 116, § 4 (effective August, 1950), applied retroactively so that
public aid received by Roberts would not prevent him from acquiring a
settlement in Taunton; that you have determined said chapter 493 has
no retrospective effect; and that under the law existing in November,
1947, when Roberts received aid he was not "eligible" to receive benefits
under G. L. (Ter. Ed.) c. 115, and he was therefore still settled in Brockton
at the end of January, 1951.
You wish to know whether your opinion is correct.
Prior to August, 1950, G. L. (Ter. Ed.) c. 116, § 4, read: "If a veteran
or a dependent of a veteran eligible to receive veterans' benefits under
chapter one hundred and fifteen receives benefits or treatment in any
hospital or other institution, such benefits or treatment shall not have the
effect of preventing or defeating the acquisition of a legal settlement."
It is manifest that if St. 1950, c. 493, has no retroactive effect Roberts'
process of acquiring a settlement in Taunton would be interrupted be-
cause the aid received by his child in the State school would be aid to him
and during the receipt of said aid he was not "eligible" to receive bene-
fits under chapter 115 since he was then steadity employed. G. L. (Ter.
Ed.) c. 116, § 2. Treasurer and Receiver General v. Natick, 320 Mass. 715.
Said St. 1950, c. 493, amends G. L. (Ter. Ed.) c. 116, § 4, to read as
follows: "If a veteran or a dependent of a veteran whose service qualified
him to receive veterans' benefits under chapter one hundred and fifteen
receives benefits or treatment in any hospital or other institution, such
benefits or treatment shall not have the effect of preventing or defeating
the acquisition of a legal settlement."
Under that statute the veteran would not have to be in need in order
to counteract the effect of section 2 of chapter 116 relating to public aid.
It was only necessary for his service to qualify him.
On the question of whether statutes relating to settlements are prospec-
tive or retrospective the cases are quite definite. In Lexington v. Common-
wealth, 279 Mass. 571, at 574, the court said: "In the recent decision of
Brockton v. Conway, 278 Mass. 219, 223 we said: 'Statutes relating to the
settlement and support of paupers are prospective and not retroactive in
operation unless a contrary intent is made plain by unequivocal words or
necessary implication.'"
IM). 12. 23
The statute in the Lexington, case as ciuoted l)y tlie court on page 573
provided: "The settk>ment existing on August twelfth, nineteen hundred
and sixteen, or any settlement subse(iuently ac(|uired, of a person whose
sei'vice . . . (jualiftes him to receive aid or relief under the provisions of
chapter one liundred and fifteen . . . shall not be defeated, except by
failure to reside in the commonwealth for five consecutive years or by the
accjuisition of a new settlement." The court then said these words do not
apply to settlements which had come to an end before the statute took
effect and was therefore not retroactiv(\
In Peppei-ell v. So)nerville, 321 Mass. 413, in the note at the bottom of
pages 414 and 415, the court said this statute was not retrospective in
effect.
It is to be noted, however, that the statute reads "a person whose serv-
ice .. . qualifies him to receive aid ..." (emphasis supplied). The use
of the tense "c|ualifies" negates the past and looks in futuro.
Statute 1950, c. 493, might, however, be distinguished. The words are
"a veteran . . . whose service qualified him to receive veterans' bene-
fits" (emphasis supplied). The tense of the verb "qualified" looks to the
past. P'urthermore, there is no question here (as in the Lexington case) of
the revi\'al of a settlement which had already come to an end. The ciues-
tion here is whether the 1950 statute could apply to the process of ac-
quiring a settlement although the process began several years before.
I think a strong argument could be offered for either position taken b}'
the cities involved. Since, however, it is my duty to approve your de-
cision unless it is manifestly in error, I answer your question in the af-
firmative.
\'ery truly yours,
Francis E. Kelly, Aitornetj Heneral.
Public Records — Pensions of Former Members of the Legislature.
Sept. 2, 1952.
Hon. Foster Furcolo, Treasurer and Receiver (ieneral.
Dear Sir: — You have requested my opinion as to whether or not the
names and amounts of pensions of former members of the Legislature
are a matter of public record.
I answer your inquiry as follows:
It is provided by G. L. (Ter. Ed.) c. 4, § 7, cl. Twenty-sixth, as follows:
"Twenty-sixth, 'Public records' shall mean any written or printed
book or paper, any map or plan of the commonwealth, or of any county,
city or town which is the property thereof, and in or on which any entry
has been made or is required to be made by law, or which any officer or
employee of the commonwealth or of a county, city or town has received
or is required to receive for filing, and any book, paper, record or copy
mentioned in sections five to eight, inclusive, and sixteen of chapter sixty-
six, including public records made by photographic process as provided in
section three of said chapter."
24 P.D. 12.
In your request for my opinion you call my attention to the procedures
involved in making monthly pension payments under the retirement laws
of the Commonwealth. These procedures are —
1. The State Retirement Board makes out a monthly retirement war-
rant which bears the name of the pensioners and the respective amount
to be paid to each.
2. This warrant is then sent by the State Retirement Board to the
Treasurer of the Commonwealth.
3. The Treasurer approves and signs the warrant.
4. The Treasurer then forwards the warrant to the Comptroller's office.
5. The Comptroller then, after his approval, forwards the warrant to
the Governor and Council for approval.
6. Following approval by the Governor and Council the warrant is
then forwarded to the Treasurer of the Commonwealth, who then causes
checks to be mailed to the pensioners for their respective monthly retire-
ment payment.
It is my opinion that when the Treasurer of the Commonwealth makes
payment to pensioners under the retirement laws, after the procedures
outlined above have been carried out, the pensioners on the warrant and
the amount appearing thereon paid to each pensioner constitute public
records to which the public have a right of reasonable access.
Therefore, it is clearly within your official province, upon request by a
taxpayer or newspaper, to make this information public.
Very truly yours,
Francis E. Kelly, Attorney General.
Weather Amendment Board — Bond of Licensee — Personal Liability of
Public Officer.
Nov. 10, 1952.
Mr. Henry T. Broderick, Chairman, Massachusetts Weather Amendment
Board.
Dear Sir: — I have before me your request that I advise you (1) with
respect to your "individual and official liabilities in the event authority is
granted and losses result by reason of the granting" of a license "to stimu-
late rainfall"; (2) "whether the imposing of a condition requiring the h-
censee to provide adequate bond against losses resulting from stimulated
rainfall would be a reasonable condition to impose upon the granting of a
certificate."
By the provisions of St. 1951, c. 511, —
"... It shall be the function and duty of the board to authorize and
control the alteration or attempted alteration of natural weather phe-
nomena by human or artificial means as hereinafter provided, and such
alteration or attempted alteration is hereby declared to be a public func-
tion. No person shall use chemical, mechanical or other artificial measures
designed to increase or decrease rainfall or snowfall in the commonwealth
or over any part thereof without first obtaining from the board a certifi-
cate of authority for the purpose. Such a certificate of authority shall be
granted only after a public hearing by the board, notice of which shall
have been given by newspaper pubfication not less than forty-eight hours
P.D. 12. 25
ill advance and on at least two different days in the area in or over which
such artificial measures are planned to be used. Such certificate shall be
limited as to time, duration and location, and shall contain such other
conditions and safeguards of the public interest as the board shall spec-
ify. . . ."
It seems apparent that the AVeather Amendment Board, hereinafter re-
ferred to as the board, acts as public offic(>rs in the performance of duties
imposed upon it by the Legislature.
It is well settled that public off'cers, acting in the performance of
official duties, are not personally liable for harmful conseciuences arising
out of their acts in thus performing their duties. See Moynihan v. Todd,
188 ]Mass. 301; Bami v. Smith, 191 iMass. 78: Fidgoni v. Johnston, 302
Mass. 421, 423.
I therefore answer in the negative your first cjuestion — ■ whether you
would be liable in the event authority was granted by your board and losses
resulted therefrom.
Touching your second question — whether it would be a reasonable con-
dition to the granting of a license to require a bond from the li'^-ensee, con-
ditioned to indemnify against losses suffered through the exercise by the
licensee of his license, if such a bond were required it would necessarily be
(1) for the protection of the Commonwealth; or (2) for the protection of
the members of the board; or (3) for the protection of any other person,
against such losses.
(1) No bond would be needed, nor should one be required, for the bene-
fit of the Commonwealth, since the Commonwealth would not be legally
responsible to anj- one for losses, and no action could be maintahied against
it. since there is no statutory provision provided therein. It is a long and
thoroughly established rule that the State may not be impleaded in its
own courts without its express consent. See McArthur Bros. Co. v. Co77i-
mon wealth, 197 Mass. 137; Burroughs v. Commonwealth, 224 Mass. 28;
Benjamin Foster Co. v. Commonwealth, 318 Mass. 190; Putnam Furniture
Hldg. Inc. v. Commonwealth, 323 Mass. 179.
(2) Nor would a bond be needed or required for the protection of the
members of the board, who are under no legal responsibility for the con-
sequences of the acts of a licensee who has been licensed in accordance
with the provisions of St. 1951, c. 511.
(3) The person who might need or be benefited by a bond would, there-
fore, necessarily be some third person who had suffered a loss or damage
through the exercise of his license by the licensee. But under the law of
the Commonwealth, a bond would not afford such a person any protec-
tion. The bond could not be entered into, as a matter of contract, be-
tween the licensee and any such possible victim of the exercise of the
license, not only because such possible victim is not ascertained, and is
wholly contingent, but because neither the Commonwealth nor the board
has any authority to act for such person. The bond, therefore, must be
entered into between the licensee and the Commonwealth or between the
licensee and the members of the board, and in either case for the benefit
of any person who might suffer loss or damage through the exercise of the
license. It is the rule, however, in this Commonwealth, subject to cer-
tain seeming or real exceptions not here material, that a person for whose
benefit a contract is made has no right of action on such contract. See
Mellen v. Whipple, 1 Gray 317: Hampson v. Larkin, 318 Mass. 716.
26 P.D. 12.
It thus appears that a bond conditioned to indemnify possible victims
of the exercise of a license would afford such victims no protection in the
absence of a statute giving them a right of action thereon.
Whether it would be advisable or appropriate to suggest the possibility
of such legislation to the Governor and Council, under whose supervision
the board acts (see c. 511, § 1), is not a matter concerning which my opin-
ion is requested, and 1 express none thereon.
Very truly yours,
Fran'Cis E. Kelly, Attorney (ieneral.
Electrical Contractor to hold Master's License.
Nov. 10, 1952.
Mr. Michael H. Condron, Director of Registration.
Dear Sir: — The State Examiners of Electricians, through you, have
recently asked my opinion interpreting the effect of the law under the
circumstances hereinafter described.
They wish to know whether G. L. (Ter. Ed.) c. 141, § 8, as inserted by
St. 1948, c. 629, authorizes a contractor who is not the holder of a master
electrician's license to employ journeymen to perform electrical work on
premises or property belonging to the person engaging said contractor.
The legislative intent with respect to this statute must be ascertained
by giving the words used their ordinary meaning (unless there is some-
thing in the statute indicating otherwise) and by considering the pre-
existing state of the common and statutory law, contemporary legislation,
and the main object sought to be accomplished by the enactment. McBey
V. Hartford Accident li- Indemnity Co., 292 JVIass. 105. Meunier's Case,
319 Mass. 421.
To this end let us examine some pertinent statutory provisions.
Section 1 of said chapter 141 provides that no person shall work at the
business of installing electrical wires or appliances without a license issued
in accordance with the provisions of the chapter. The section then defines
a master electrician as a person who has a regular place of business for
the performance of electrical work by the employment of journeymen,
and defines journej''men as persons who perform electrical work for hire.
Section 3 of chapter 141 declares that the master electrician's license
shall be known as "Certificate A" and the journeyman's license as "Cer-
tificate B."
Subdivision (1) of section 3 provides that "Certificate A" shall be issued
to any person engaging in the business of instaUing electrical wires or
appliances; but the possession of a "Certificate A" shall not entitle the
holder individuallj^ to perform said work, but shall entitle him to conduct
business as a master electrician.
Subdivision (2) of section 3 provides that "Certificate B" shall be
granted to any person passing the examination before the State lOxaminers
of Electricians.
Section 8 (third paragraph) of chapter 141 declares that electricians
regularly employed by persons who do not hold a "Certificate A" may
install electrical wires or appliances "only on the premises and property
of such persons"; provided such electricians hold journeymen's licenses.
P.I). 12. 27
All the aforesaid statutory provisions should he read together so as to
produce a consistent and harmonious body of law. Assessors of Boston v.
Lamson, 316 Mass. 166, 171. School Commitlee of Gloucester v. Gloucester,
324 Mass. 209.
Applying the above principles, it would appear that the General Court
wished to preserve the public safety and welfare by requiring (through
examination) a master's license of one engaging in the electrical business
and hiring others to do the work; and a journeyman's license of those
hired to do said work.
The exception found in section 8 was undoubtedly intended to apply to
owners of property requiring frequent electrical installations or repairs; and
who maintained or regularly employed a crew of journeymen for this purpose.
A contractor, however, who undertakes to provide electrical work for
another must hold a ''Certificate A." When a contractor hires men to
do electrical work "on the premises and property of" another, said work
is not being done on the contractor's premises or property. Such a con-
tractor does not fall within the exception mentioned in section 8.
I therefore answer the question in the negative.
Very truly yours,
Francis E. Kellv, Attorney General.
Veteran's Rights — Holding Non-Civil Service Position for Three Years.
Dec. 2, 1952.
Hon. JoHX J. Desmond, Jr., Commissioner of Education.
Dear Sir: — -You have asked me to interpret the effect of the law
under the circumstances hereinafter described.
From the facts recited in j^our request and from the documents attached
thereto it appears that in your department there is a position titled "Super-
visor in Elducation"; that this position has been classified by the Division
of Personnel and Standardization under G. L. (Ter. Ed.) c. 30, §§ 45 and
46, as follows:
"Supervisor in Education
Titles of Typical Classes in Group :
Supervisor in Agricultural Education
Supervisor in Industrial Education
Supervisor in Agriculture Teacher-Training
Supervisor in Teacher-Training for Women and Girls
Supervisor in ^'ocationaI Education for Women and Girls
Supervisor in Vocational Rehabilitation
Definition of Class: Duties: Under general direction to exercise
advisory super\asion over the work of industrial, agricultural, or
household arts education in State-aided vocational and continuation
schools, or over the training of teachers for these schools; or to have
charge of the State program of vocational training or of rehabilitation
of persons industrially handicapped.
Salary Grade No. 51
Service Group No. 47
Approved in Council
JuN 16 1948"
28 P.D. 12.
that your department employs at least thirty-one supervisors, who are
assigned to special or different branches of education; that under yearly
contracts with the United States Veterans' Administration your depart-
ment received grants for the salaries of those supervisors who were assigned
to job-training programs for veterans; that the contract running from
July 1, 1951, to June 30, 1952, provided for a reduction in personnel every
three months so that five supervisors were assigned to the program for the
first quarter, four for the second tiuarter, three for the third quarter, and
two for the fourth quarter; that William J. Butler, Garrett T. Barry and
Francis J. McCrehan (all three of whom are veterans) received their
original appointments as "Supervisor in Education" on June 18, 1946,
January 20, 1947, and January 20, 1947, respectively; that all three were
assigned to the job-training program for the first, second and third quarters
under the aforesaid contract; that only Butler and Barry were assigned
for the fourth quarter; that McCrehan's services as supervisor were de-
clared terminated on the ground of lack of work or funds; and that of
the thirty-one supervisors in education seventeen are not veterans, and
of those who are veterans seven have less seniority than said McCrehan.
You ask four questions :
"1. Did Mr. McCrehan's employment legally terminate with the end
of the employment period for which he was specifically emploj^ed, Januarv
1, 1952, to March 31, 1952?
"2. Did the Department of Education comply with the terms of the
contract No. V100n'-375 in employing two Supervisors for the final
period specified in the agreement, April 1, 1952, to June 30, 1952?
"3. Did the Department of Education legally employ Mr. William J.
Butler and Mr. Garrett T. Barry as Supervisors for this final period of
the contract?
"4. Have the rights of Mr. Francis J. McCrehan under G. L. c. 30,
§ 9A, as amended by St. 1947, c. 242, been respected?"
General Laws CTer. Ed.) c. 30, § 9A, inserted by St. 1947. c. 242, pro-
vides :
"A veteran . . . who holds an office or position in the 8er\ice of the
commonwealth not classified under said chapter thirty one, . . . and has
held such office or position for not less than three j''ears, shall not be in-
voluntarily separated from such off.ce or position except subject to and in
accordance with the provisions of sections forty-three and forty-five of
said chapter thirty-one to the same extent as if said office or position were
classified under said chapter. If the separation in the case of such un-
classified offices or positions results from lack of work or lack of money,
such a veteran shall not be separated from his office or position while
similar offices or positions in the same group or grade, as defined in section
forty-five of this chapter, exist unless all .such offices or positions are held
by such veterans, in which case such separation shall occur in the inverse
order of their respective original appointments."
This statute is specific and contains a definite legislative mandate that
if a veteran has held a non-ciAnl service position for at least three years he
cannot be separated from the service without the notice and hearing
required by G. L. (Ter. Ed.) c. 31, §§ 43 and 45. Furthermore, e\'en if
there is lack of work or funds, such a veteran cannot be dismissed if there
are other positions similar to his in the department not held b}' veterans
or held by veterans who ha\'e less seniority.
P.D. 12. 29
Since you have .supervisors in the same group or grade with non-veteran
status or with less seniority, McCrehan must be retained.
I therefore answer j'our first and fourth (|uestions in the negative.
This eonehision, however, has no effect upon the status of Butler and
Barry and I answer j'^oin* second and third cjuestions in the affirmative.
\'ery truly yours,
Fran'cis K. Jvkllv, Attorney (kneraL
Veteran^ s Retirement — Member of the Generol Court Effect of St. 1952,
c. 634, § «'?•
Jan. o, 1953.
Hon. Thomas H. Buckley, Commissioner of Adtnittistratioii.
Dear Sir: — • You have recently requested my opinion interpreting the
effect of St. 1952, c. 634, under the circumstances hereinafter described.
You state that an employee of the Commonwealth (who entered the
service prior to Jul}^ 1, 1939) has applied to 3'ou for retirement under the
provisions of G. L. (Ter. Ed.) c. 32, § 56, as amended; that he claims as
creditable service four 3^ears as a member of the Massachusetts House of
Representatives; that in pursuance of an opinion rendered by my pred-
ecessor you have allowed as creditable service for a veteran retiring under
sections 56, 57 or 58 of said chapter 32 all service performed as an elected
official including service as a member of the General Court; that St. 1947,
c. 660, amends section 1 of chapter 32 and includes in the definition of
"employee" members of the General Court; that section 3 of chapter 660
provides that "he shall be credited with a year of creditable service for
each calendar year during which he served as an elected official"; that
section 4 of chapter 660 provides the method for depositing the proper
amount in the aniuiity sa\dngs fund to establish creditable years of service
for any person who on the effective date of that act was a member of a
retirement system; and that the employee in (luestion was on said effec-
tive date an employee in good standing in a retirement system and has
made the required contributions thereto.
You wish to know whether section 8 of St. 1952, c. 634, excludes from
the computation of creditable service the time spent in the General Court.
In the case of WilL'^iyis v. Contrihntory Retirement Appeal Board, 304
Mass. 601, the court de\,lared that said chapter 32 ought, if possible, be
construed as a whole so as to make it an effectual piece of legislation in
harmony with common sense and sound reason. With this in mind let us
examine some of its pertinent sections.
In section 1 "employee" is defined (among other things) as any person
who is regularly and permanently employed by the Commonwealth.
A "member" is defined as any empk\yee included in the State em-
ployee's retirement system, the teachers' retirement system or any county,
city or town contributorv retirement sj^stem established under sections 1
to 28.
"System" is defined as the State emploj^ees' retirement system, the
teachers' retirement system or any county, city or town contributory re-
tirement system established under sections 1 to 28.
Section 2 describes three sj'stems, namely: the State employees' re-
tirement system, the teachers' retirement system, and county, city or
30 P.D. 12.
town contributory retirement systems established under the provisions of
chapter 32. It further provides that, subject to sections 1 to 28, an em-
ployee of the Commonwealth shall be included in the State employees'
retirement system.
Section 3 relates to membership in a system. Subparagraph (1) (a)
provides that a member in service is any member who is regularly em-
ployed in the performance of his duty. Subparagraph (2) (a) (x) provides
that any employee as defined in section 1 is eligible for membership.
Section 25 (3) (a) provides:
"Any member in service classified as a veteran referred to in sections
fifty-six to sixty A inclusive, who entered employ of any governmental
unit prior to July first, nineteen hundred and thirty-nine, shall have full
and complete rights either under the system of which he is a member or
under the provisions of sections fifty-six to sixty A inclusive. . . . Such
rights shall be in the alternative and shall be exercised only at the time of
his retirement. If a member is retired under the provisions of sections
fifty-sLx to sixty A inclusive, he shall, upon his written application . . .
in which he waives all his rights under sections one to twenty-eight in-
clusive, be paid the amount of the accumulated total deductions credited
to his account in the annuity savings fund of the system on the date of
his retirement. Nothing contained in this subdivision shall permit the
withdrawal of any such veteran from membership in such system except
upon termination of his service. ..."
Sections 56 and 57 provide that veterans who have served the Common-
wealth for at least ten years and are incapacitated may be retired by the
retiring authority.
Section 58 provides that a veteran who has been in the service of the
Commonwealth for a total of thirty years in the aggregate shall at his own
request, with the approval of the retiring authority, be retired from active
service.
Section 59 declares that in the case of the Commonwealth the Governor
shall be the retiring authority.
Section 60 provides that sections 56 to 59 shall not apply to veterans
whose employment first began after June 30, 1939.
Section 28D provides that a member of the General Court and certain
other elected officials may be retired after having served at least six years
in such office. ,. ^^
Section 28E provides that a member of a retirement system who was
later elected to the General Court could receive creditable service for his
term in the Legislature, subject to certain different computations if said
term was less than six years.
Section 28H provides that an employee of the Commonwealth who has
completed twenty years of creditable service may be retired and may re-
ceive as credit toward said twenty years the period served in the General
Court.
Statute 1952, c. 634, repealed said sections 28D, 28E and 28H, and fur-
ther provides in section 8:
"No member or former member of the general court or present or
former elected constitutional officer shall receive any pension or retire-
ment allowance for his services performed as a member of the general
court or for services performed in discharging the duties of the office to
P.D. 12. 31
which he was elected: nor shall the term or terms served by such person
in the general court or in such state office be computed as creditable serv-
ice in any retirement system in which such person may be a member."
In construing section 8 one of the primary considerations is to ascertain
the main object sought to be accomplished by the enactment. See McBey
V. Hartford Accident cV Indemniiij Co., 292 j\lass. 105. Meunier's Case,
319 Mass. 421.
It appears from the first half of section 8 that the Legislature was aim-
ing at pensions granted under sections 28D, 28E and 28H of chapter 32.
In the second half of said section 8 the Legislature was thinking of the
creditable ser^dce of a member of a retirement S3^stem. Statute 1952,
c. 634, deals only with rights acquired under sections 1 to 28 of chapter 32.
It has nothing to do with pensions granted under sections 56, 57 or 58.
Section 25 (3) (o) specificalh' pro^'ides that a veteran whose public em-
ployment began prior to July 1, 1939, may elect to retire under sections 1
to 28 as a member of a retirement system, or as a veteran under sections
56, 57 or 58; and if he chooses the latter alternati^■e there will be refunded
to him all the accumulated deductions (if any) credited to his account in
the annuity savings fund.
It is manifest from the foregoing that a A'eteran who seeks retirement
under sections 56, 57 or 58 is not doing so as a member of any system. On
the contrary, he has specifically waived all rights under sections 1 to 28
which relate to a "system." Statute 1952, c. 634, affects only the mem-
bers of a retirement system who seek retirement by Anrtue of such mem-
bership.
The conclusion is therefore inescapable that the service of said veteran
in the General Court is not affected by said statute and it should be com-
puted as creditable service.
^'ery truly yours,
Francis E. Kelly, Attorney (ieneral.
Salary to Officer performing Official Services at Home.
Jan. 20, 1953.
Me. 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 a former assistant director of the Division of Employ-
ment Security became ill and by January 5, 1951, he had used up all his
sick and vacation leave credits; that said illness was due to the nature of
his duties; that early in 1951 he applied for retirement; that although he
has not reported for duty since Januarj' 5, 1951, he was frequently con-
sulted on official business at his home; that his salary was paid until
June 30, 1951; and that he was kept on the payroll until July 31, 1951,
when he was retired.
You ask two questions:
"1. In its exercise of departmental administrative discretion, did this
Division have the right to make the payments in question?
I
32 P.D. 12.
"2. Did St. 1947, c. 677, absolve this Assistant Director from report-
ing for duty during the period involved, even though his salary Avas paid
during that time?".
The statutory provisions pertinent to your inquiry are the following:
General Laws (Ter. Ed.) c. 23, § 91, as inserted by St. 1939, c. 20, § 1,
and amended by St. 1941, c. 709, § 4, provided for the creation of a Divi-
sion of Elmployment Security within the Department of Labor and Indus-
tries, under the supervision and control of a director, who shall be ap-
pointed by the Governor and who shall administer the provisions of
chapter 151 A; and that said director shall not be subject to chapter 31.
The 1939 act also provided that the director could appoint deputies or
assistants, not exceeding five, as maj^ be determined by the Governor;
and that they could be removed for cause but they were not subject to
chapter 31.
Since 1941, G. L. (Ter. Ed.) c. 23, § 9K, provided that the director may
appoint assistant directors and other officers, and employ such employees
as are necessary for the proper administration of chapter 151 A; that all
persons so appointed or employed by him shall be selected subject to
chapter 31' and that the director shall fix the duties of all persons ap-
pointed and emploj^ed by him and may authorize such person to perform
such duties, functions and powers of the director as may be necessary
or suitable for the proper administration and enforcement of chapter
151A.
General Laws (Ter. Ed.) c. 149, § 30A, uiserted by St. 1947, c. 677,
restricts the W'Ork hours of all persons in the service of the Commonwealth
to no more than fi^'e days nor more than forty hours in any one week, but
excludes from the operation of the act "heads of departments and diAa-
sions and their deputies and assistants."
General Laws (Ter. Ed.) c. 30, § 45, provides that the Division of Per-
sonnel and Standardization in the Department of Administration and
Finance shall classify and specify the duties and responsibilities of all
appointive offices and positions, with certain exceptions. In accordance
with said section 45 the duties of the Assistant Director of Employment
Security were specified as follows: "Under administrative supervision, to
assist the Director in supervising the activities and operations of an as-
signed phase of the work of the Division of Employment Security; and
to perform related work as required."
The legislative intent with respect to the foregoing must be gathered
from the words in which the statutes are couched, giving them their ordi-
nary 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 enactments. McBey
v. Hartford Accident \- Indemnity Co., 292 Mass. 105. Meunier's Case,
319 Mass. 421.
It appears manifest from the statutory provisions that the Director of
the Division of Employment Security is appointed under said chapter 23,
section 91, to administer the provisions of chapter 151A, which relates to
employment security.
It is also manifest that the assistant director is an officer appointed by
the director. The fact that under G. L. (Ter. I^]d.) c. 23, § 9K, the as-
sistant directors are subject to chapter 31, whereas prior to 1941 they were
not, does not change their status as officers instead of mere employees.
P.D. 12. 33
Because an assistant director is such an officer and because he is an
assistant to the head of a division, section 30A of chapter 149 does not
apply. He is not obhged to work any special number of hours or perform
his work in any particular building which houses the offices of the division,
or at his home, excepting in so far as he may be ordered by the director.
Under said section 9K the director fixes the duties of the assistant director
and authorizes the performance thereof in such manner as he may deem
suitable for the proper administration and enforcement of chapter 151A.
According to the facts related by you, that is exactly what the Director
of Employment Security did. He had the power to impose light or bur-
densome duties upon his assistants. He could permit his assistant director
to do his consulting, thinking and advising at home or elsewhere. The
director had plenary powers to determine what was suitable or necessary
for the proper administration and enforcement of chapter 151A.
I therefore answer your first question in the affirmative.
In view of my answer to your first question there is no need to answer
your second question.
Very truly yours,
Francis E. Kelly, Attorney General.
Department of Public Health — Addition of Fluorides to Public Water.
Jan. 20, 1953.
Hon. Vlado a. Getting, Commissioner of Public Health.
Dear Sir: — You have recently asked me for an opinion interpreting
the law under the circumstances hereinafter described. You ask two
questions :
(1) Do the laws of the Commonwealth relating to public water supplies
permit the addition of fluorides as a dental caries prophylactic to the
water supplied?
(2) Does the Department of Public Health have authority to approve
the application of fluorides to public water supplies if so requested?
The answer to question (1) depends upon the particular enabling statute
authorizing any particular city or town to supply water to its inhabitants.
The usual form of statute contains the following clauses: "acquire by
lease, purchase, gift, devise or otherwise, and hold all lands, rights of way
and other easements necessary for collecting, storing, holding, purifying
and treating such water and protecting and preserving the purity thereof
and for conveying the same to any part of said town" and "said town may
construct and maintain on the lands acquired and held under this act
proper dams, wells, reservoirs, pumping and filtration plants, buildings,
standpipes, tanks, fixtures and other structures, including also purifica-
tion and treatment works, the construction and maintenance of which
shall be subject to the approval of said department of public health, and
may make excavations, procure and operate machinery, and provide such
other means and appliances and do such other things as may be necessary
for the establishment and maintenance of complete and effective water
works." Apart from the use of the words "purifying and treating such
water" and "including also purification and treatment works" and "do
34 P.D. 12.
such other things as may be necessary for the establishment and main-
tenance of complete and effective water works," a city or town would have
the implied right to introduce into its water supply such chemicals or
drugs which would remove all deleterious substances and thus purify the
water supply. There might be some doubt, however, about the implied
authority to introduce chemicals or drugs for the purpose of making the
water supply salubrious. It would seem, however, that by using the words
"purifying and treating such water" and "including also purification and
treatment works" and "maintenance of complete and effective water
works," the Legislature had in mind something more than just removing
harmful substances. The Legislature contemplates that the water supply
shall not only be pure but if possible shall preserve and protect the health
of the users thereof. My answer to question (1) is therefore "yes."
As to question (2), G. L. (Ter. Ed.) c. Ill, § 5, provides:
"The department . . . shall have oversight of inland waters, sources
of water supply and vaccine institutions ..."
Section 17 of said chapter also provides:
"... All petitions to the general court for authority to introduce a
system of water supply, drainage or sewerage shall be accompanied by a
copy of the recommendation, advice and approval of said department
thereon. The department may after a public hearing require a city or
town or water company to make such improvements relative to any exist-
ing treatment works as in its judgment may be necessary for the pro-
tection of the pubHc health. . . ."
It would appear from said provisions that the Department of Public
Health would have the right in the exercise of its sound judgment to per-
mit the treatment of public water supplies by the application of fluorides.
Very truly yours,
Francis E. Kelly, Attorney General.
Public Works — Corporation and Partnership Bidding as Joint Venturers.
Feb. 10, 1953.
Hon. William F. Callahan, Commissioner of Public Wo7-ks.
Dear Sir : — This office has received from your department a letter in
which you refer to a situation created by the receipt of bids for a highway
and bridge construction project in the city of Gardner submitted by the
Hill Construction Company and the Holden Engineering Company, Inc.
The aforementioned letter describes the Hill Construction Company as
a partnership and the Holden Engineering Company, Inc. as a corpora-
tion. You also forwarded to this office a copy of the proposal page in
which the proposal was signed by the officers of the corporation and bj"^
individuals comprising the company known as the Hill Construction
Company.
You also refer to an opinion of former Attorney General ('larence A.
Barnes dated February 26, 1948, which dealt with a similar problem.
Apparently the problem raised by you in connection with the bids of
the Hill Construction Company and the Holden Engineering Company^
Inc. may be stated as follows: If a corporation and a partnership sign the
P.D. 12. 35
proposal form without specifi(;ally describing the fact that they are bidding
as joint venturers, does such a situation result in an improper bid which
can be rejected by your department?
This office is of the opinion that the mere absence of the words "bidding
as joint venturers" is not a fatal defect in the bid, particularly where the
specifications and the general requirements listed in your volume on
standard specifications do not re(}uire the insertion of such language. It
has long been recognized that a corporation and a partnership are not
authorized under the laws of this Commonwealth to become partners in a
common enterprise. (Whittenton Mills v. I'pton, 10 Gray, 582, 596.)
It is a well-estabHshed principle of contract construction that no infer-
ence can be drawai, in the absence of specific language, that the parties
thereto have engaged in an agreement which is illegal. There is some
authority which holds that although a corporation may not enter a co-
partnership with a partnership firm in a common enterprise, it may,
nevertheless, enter into a joint venture with that partnership. Thus it
becomes apparent that the validity of the bid referred to in your letter
depends upon whether the corporation and the partnership have entered
into a co-partnership or a joint venture.
We are in receipt of information that a vote of the corporation has been
passed which indicates that the corporation was not engaging in a co-
partnership enterprise but rather was relying on the fact that it had
undertaken a joint venture with the Hill Construction Company. We
are also given to understand that a copy of this vote will be forwarded to
your department at the time of the awarding of the contract. This vote,
coupled with the principle of interpretation which discounts an attempt
to participate in an illegal agreement, is the best evidence for determining
the question as to whether the corporation and the partnership have en-
gaged in a partnership enterprise or a joint venture. If the vote and the
language of the bid satisfy your department that the corporation and the
partnership have engaged in a joint venture, then the mere absence of
the words "bidding as joint venturers" on the proposal form by itself
would not render the bid invalid and provide any basis for an inference
that the Hill Construction Company and the Holden Engineering Com-
pany, Inc. were engaged in a co-partnership enterprise.
Very truly yours,
George Fingold, Attorney General.
Rent Control — Delegation of Authority to Cities and Towns.
Feb. 13, 1953.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir: — In your recent letter, you refer to the probability that the
Federal rent control law, except in defense areas, will expire April 30 and
that the question of rent control will then be left to the States. In this
connection you have requested mj^ opinion on two questions, namely:
1. Can the cities and towns of their own authority establish rent con-
trol regulations?
2. May the Commonwealth delegate to the cities and towns the au-
thority to establish rent control?
36 P.D. 12.
I answer your first question in the negative, and your second question
in the affirmative subject to the hmitations hereinafter discussed.
Cities and towns, being creatures of the Commonwealth, have such
powers as are delegated to them by the Legislature; G. L. (Ter. Ed.)
c. 40. Section 21 of said chapter authorizes cities and towns, for certain
stated purposes, to "make such orders and by-laws, not repugnant to law, as
they may judge most conducive to their welfare." The purpose specified
in paragraph (1) is "for directing and managing their prudential affairs,
preserving peace and good order, and maintaining their internal police."
It was held in Commonwealth v. Wolbarst, 319 Mass. 291, at 293:
"This section does not transfer to a city or town all the police power of
the Commonwealth or such portions of it as a municipality might de«ire
to exercise, but the grant is limited to the regulation and prohibition of
such matters as are of an inherently local nature, peculiarly affecting the
public welfare of the particular community and so closely connected with
the administration of local government as to become properly a part of it."
Many examples of those matters, the control and supervision of which
have been given to cities and towns by section 21 (1), are set forth in
Commonwealth v. Kimball, 299 Mass. 353, at 356-358. The majorit}'- of
these instances concern the regulation of the use of the public ways. In
the Kimball case, at page 357, the court stated that said section 21 (1),
did "not enable a city to establish a local policy in important matters of
general concern, hke the prohibition or regulation of the sale of hquor."
Furthermore, it is my opinion that the above statute was not intended
to and does not apply to matters of an emergency nature, such as the
regulation and control of rents.
Article XLVII of the Amendments to the Constitution of Massachu-
setts provides as follows :
"The maintenance and distribution at reasonable rates, during time of
war, public exigency, emergency or distress, of a sufficient supply of food
and other common necessaries of life and the providing of shelter, are
public functions, and the commonwealth and the cities and towns therein
may take and may provide the same for their inhabitants in such manner
as the general court shall determine."
Assuming the applicability of this amendment to the question of rent
control, it clearly gives no power to cities and towns "to exercise the
public functions declared in the first part of the amendment except as is
provided in the last part of the amendment; that is, in such manner as
the General Court shall determine." V Op. Atty. Gen. 195. At page 198
it is further stated :
"The mere fact that an undertaking can be sustained as a public func-
tion does not warrant a city or town in carrying on the undertaking.
There are now many public functions that they cannot perform without
authority from the General Court. If the General Court fails to prescribe
the manner in which the public functions declared in the amendment are
to be performed, the cities and towns have no authority to perform them."
Although the city of New York has adopted local rent control laws, it
should be noted that the Constitution for the State of New York grants
P.D. 12. 37
some police powers directly to cities and towns; see New York Constitu-
tion, Home Rule Amendment, art. IX. § 12; and, in addition, there was
specific legislation validating the loca laws; see, for example. Laws of
New York, 1948, c. 699.
The second ciuestion deals with the power of the Commonwealth to
delegate to the cities and towns the authority to ostal)lish rent control.
This question is general in nature anc? can be answered only on the broad
general principles involved. Whether a particular bill drafted to accom-
plish the delegation of authority to cities and towns to establish rent
controls would be constitutional wcxild depend on the specific terms and
provisions of such bill.
It must now be considered settled that authority to establish rent
control legislation lies within the domain of the police power of the Com-
monwealth, and that such legislation will be upheld where it is of an
emergency nature, hmited in duration and justified by a proper legislative
finding and declaration of emergency conditions and where adequate
provision is made for judicial re.dew. Bowles v. Willingharn, 321 U. S.
503; see also Vakus v. United States, 321 U. S. 414.
The Constitution of Massachusetts grants "full power and authority"
to the General Court "to make, ordain, and establish, all manner of
wholesome and reasonable orders, laws, statutes, and ordinances, ... as
they shall judge to be for the good and welfare of fthis Commonwealth,
and for the goA'ernment and ordering thereof, and of the subjects of the
same. . . ." Mass. Const., pi 2d, c. I, § I, art. IV.
Rent control legislation hts been enacted in New York, and several
other States, and its constitutionality has been upheld where it was found
to be fair and reasonable and contained adecjuate provisions for procedural
due process. In the case of Twentieth Century Associates v. Waldman,
294 N. Y. 571, the New York Court of Appeals upheld a New York law-
passed in 1945 to control commercial rents. See also Levy Leasing Co. v.
Siegel, 258 U. S. 242, where.'n the court stated at page 245:
"The warrant for this legislative resort to the police power was the
conviction on the part of the state legislators that there existed in the
larger cities of the State a social emergency, caused by an insufficient
supply of dwelling houses and apartments, so grave that it constituted a
serious menace to the health, morality, comfort, and even to the peace of
a large part of the people of the State."
It is my opinion that the General Court may, by appropriate legislation,
delegate to cities and towns the authority to establish rent control. Al-
though the Legislature may not delegate its legislative function com-
pletely, it is settled that "where the legislative branch of government has
determined the policy to be pursued, it has power to delegate . . . the
working out of the cfetails by which that policy is applied to the subject
matter." Schaffer v. Leimberg, 318 Mass. 396, 400, delegation to an ad-
ministrative officer o.- board; Burnham v. Mayor and Alderman of Beverly,
309 Mass. 388, 389, delegation to cities and towns. The grant to the
General Court by Article LX of the Amendments to the Constitution of
the "power to limii buildings according to their use or construction to
specified districts of cities and towns" has been delegated by the General
Court to the cities and towns, G. L. (Ter. Ed.) c. 40, §§ 25-30, and such
delegation has been held to be within its authority. Opinion of the Justices,
■38 P.D. 12.
234 Mass. 597, 603; Inspector of Buildings of Lowell v. Stoklosa, 250
Mass. 52; Spedor v. Building Insfedor of Milton, 250 Mass. 63.
Reference has already been made to the local rent control laws of the
city of New York. In Connecticut, the rent control law provided for a
state fair rent commission and a coordinator and for the appointment of
local fair rent boards by selectmen of towns and common councils of cities
to make adjustments consistent Avith general state regulations. Connec-
ticut Public Acts of 1947, c. 394. 5n Maryland, the law^ authorized the
mayor and city council of every city' and the county commissioners of
every county, by ordinance, to provide for the regulation and control of
rent for housing accommodations wothin their respective jurisdictions.
Maryland Acts of 1947, c. 507. No reported decision has been found test-
ing the validity of either the Connecticut or the Maryland law.
Although apparently not designed for this purpose, Article XL VII of
the Amendments to the Massachusetts Constitution, already referred to,
strengthens the power of the Commonwealth and the cities and towns to
impose rent controls "in such manner as the general court shall deter-
mine." This amendment must certainly be construed as a direct consti-
tutional declaration of the propriety of asing the police power to assure
the availability at reasonable prices of necessary food and shelter. If the
General Court can authorize the taking of property to provide shelter, it
can certainly provide for regulation of such property through rent control.
This opinion is directed solely to the legal questions involved, and no
view is expressed as to the wisdom or practicability of the particular man-
ner in which the program of rent control should be put into effect in this
Commonwealth.
Very truly yours,
George Fingold, Attorney General.
Department of Public Works — Repair of Town Wharf.
' Feb. 26, 1953.
Hon. William C. Tuttle, Acting Commission^- of Public Works.
Dear Sir: — You have informed me that under date of August 14,
1952, your department requested advice from former Attorney General
Francis E. Kelly as to whether it might properly entertain a request from
the town of Mattapoisett to reconstruct and repair the town wharf.
Under the provisions of G. L. (Ter. Ed.) c. 91, § 11, as most recently
amended by St. 1950, c. 516, your department is given the power, outside
of Boston Harbor, to "undertake such work for the anprovement, develop-
ment, maintenance and protection of tidal and nontidal rivers and .
harbors ... as it deems reasonable and proper . . . ." Further, under
section 31 of chapter 91, to which specific reference is made by said section
11, it is empowered to "make surveys and improvenents for the preserva-
tion of harbors and may repair damages occasioned by storms or other
destructive agencies along the coast line or river banks of the common-
wealth . . . ."
It is clear that your department may, under these sections, entertain the
request referred to in said letters, and may proceed with the work re-
quired if in its judgment "the general public advantage of the proposed
P.D. 12. 39
work, the local interest therein . . . , the importance of the . . . inter-
ests to be especially served thereby, and any other material considerations
affecting the feasibility, necessity or adA'antage of thv. proposed work
. . ." warrant the completion of the project.
It appears that current appropriations for work under said section 1 1
have been specifically made by the General Court. See St. 1952, c. 310,
Item 2202-05, and c. (104, Item 7622-01.
Your attention is called to the requirement of section 11 that no work
shall be begun thereunder until after a public hearing, survey and esti-
mate of cost, and to the provisions of section 31, that no contract made
thereunder shall be \-alid without the written approval of the Governor
and Council.
\'ery truly yours,
GEORCiE FiNooLD, Attorney General.
Metropolitan Transit Authority — Eligibility for Appoint>nent as Trustee.
Mah. 10, 1953.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir: — You have asked my opinion as to whether an officer of a com-
mercial bank is eligible for appointment as a trustee of the Metropolitan
Transit Authority in view of the prohibition contained in St. 1947, c. 544,
§ 3, which provides in part as follows:
"... They (the trustees) shall not be in the employ of, or own any
stock in, or be in any way, directly or indirectly, pecuniarily interested in,
any gas or electric company, railroad corporation, bus or street railway
company, nor shall they be connected with or in the employ of any person
financing any such company. While serving as such trustees thay shall
not personally or through a partner or agent render any professional
service or make or perform any business contract with or for any such
company, nor shall they, directly or indirectly, receive a commission,
bonus, discount, present or reward from any such company. As used in
this section, 'company' shall include any person or combination of persons,
whether or not incorporated."
In the absence of an analysis of the holdings and investments of the
individual in question and of the bank in which he is an officer, it is im-
possible to determine whether the prohibition of section 3, quoted above,
is applicable. It is quite possible, for example, that the bank in question
may be engaged in financing a gas or electric company, a railroad corpora-
tion, or a street raihvay company, in which event the officer of such bank
would not be eligible for appointment as a trustee of the Metropolitan
Transit Authority.
Very truly yours,
George Fingold, Attorney General.
40 ; P.D. 12.
Department of Mental Health — ■ Sale of Gravel.
Mar. 24, 1953.
Jack R. Ewalt, M.D., Commissioner of Mental Health.
Dear Sir: — You have recently asked my opinion as to whether the
Department of Mental Health, in the absence of express legislation au-
thorizing the sale of land, may —
"1. Invite bids for the removal and sale of gravel, sand or a knoll or
mound of earth, on property of institutions under its jurisdiction.
"2. Invite bids for the removal and sale of earth that has been piled
up on property of institutions under its jurisdiction, the pile of earth
being the result of excavation necessary for construction activities."
My answer to both questions is in the affirmative.
The removal and sale of gravel or earth as contemplated above will
involve the sale of personal property rather than a sale of real estate,
provided it is agreed before the sale or under the contract of sale that such
sand or gravel be severed promptly.
The definition of "goods" as contained in G. L. (Ter. Ed.) c. 106, § 65,
which relates to sales of personal property, is as follows:
"'Goods' include . . . things attached to or forming part of the land
which are agreed to be severed before sale or under the contract of sale."
As long as the property involved is under the jurisdiction of the depart-
ment, steps may be taken as outlined above for the purpose of disposing
of such property as personalty. Express legislative authority for the sale
is not required, as w^ould be the case if the department were attempting
to sell real estate.
It should be noted that in the absence of a proper provision concerning
severance, the sale of gravel in a pit may well involve a sale of real estate.
Very truly yours,
George Fingold, Attorney General.
Lease of Land by a State Commission — • Approvals Required.
Mar. 25, 1953.
Mr. Carl A. Sheridan, Commissioner of Administration.
Dear Sir: — 'You have requested my opinion upon the two following
questions :
(1) Would a lease of private premises for the use of a commission of the
Commonwealth, executed by the owner of the leased property and by the
members of the commission, but not approved bj^ any other State agency,
be binding on the Commonwealth?
(2) If a department or commission desired to hire private property for
its use on a tenancy-at-will basis, would the provisions of G. L. (Ter. Ed.)
c. 8, § lOA, have any apphcation to the proposed agreement?
P.D. 12. 41
In my opinion, the answer to your first question is in the negative.
General Laws (Ter. ICd.) c. 8, § lOA, as most recently amended by St.
1952, c. 391, provides that "The commonwealth, acting through ... a
state . . . commission, and with the approval of the superintendent (of
buildings) and of the governor and council and of the commission on admin-
istration and finance, may lease for the use of such . . . commission . . .
for a term not exceeding five years, premises outside of the state house or
other building owned by the commonwealth . . . ." It is only under and
by virtue of this statute that the Commonwealth can become a party to
a lease of such property, and hence its liability upon such an agreement
exists or does not exist according to whether or not the approvals required
by the statute have been given. While the statute as it now appears does
not specifically provide for the invalidity of leases made without such
approvals, this result would follow as matter of law. It is to be noted
that in its original form, as appearing in St. 1924, c. 356, said section lOA
expressly provided that "no such lease shall be valid until approved by
the superintendent of buildings and the governor and council," and while
certain of the statutes amendatory of section lOA since its original enact-
ment have rephrased its provisions, it does not appear that there was any
legislative intent, in any instance, to change the rule of invalidity.
In answer to your second question, I would say that if a specific de-
partment or commission had authority, under a special statute or other-
wise, to bind the Commonwealth to an oral agreement establishing a
tenancy-at-will, the provisions of said section lOA would, of course, have
no application, since that section has to do only with the execution of
leases for definite terms.
Very truly yours,
George Fingold, Attorney Ceneral.
State Airport Management Board — State Auditor as Agent of Board to
Audit Accounts of Concessionaires.
Mar. 25, 1953.
Mr. Edward H. McGrath, Commissioner of Airport Management.
Dear Sir : — You have recently requested my opinion upon the follow-
ing questions:
(1) Whether the State Airport Management Board (hereinafter called
the board) has the right, under the agreements which it has with con-
cessionaires doing business at State-owned airports, to designate the
State Auditor as its agent for the purpose of examining the books of ac-
count of such concessionaires.
(2) Whether the State Auditor, in the normal course of his duties, has
the authority to examine such books of account in the absence of such a
designation by the board.
My answer to your first question is in the affirmative, subject to what
is said below.
Under G. L. (Ter. Ed.) c. 90, f 50F, originally enacted by St. 1948,
c. 637, § 3, you have the authority, subject to the approval of the board,
to "lease for a period not exceeding twenty years, under such covenants,
42 P.D. 12.
terms and conditions as . . . (you may prescribe) land areas at any state-
owned airport . . . (for certain purposes) and shall also lease and award
contracts for . . . concessions . . . ." You state in your letter that the
contracts into which you have entered with the several concessionaires at
such airports contain the provision that, "the board, or its agents, shall
have the right to inspect their books of account . . . ." Such a condi-
tion is clearly proper for you to have made, under your wide powers to
prescribe terms and conditions of such agreements, and is, of course, bind-
ing upon the concessionaires.
1 assume from your letter that the condition in question is essentially
the same in each contract in which it appears, and that no such contract
imposes any restriction upon the board as to the identity of the agents
which it may designate to examine the records of the concessionaires.
Upon these assumptions, it would follow that if, for one reason or another,
the board saw fit to designate the State Auditor to make such an exam-
ination, it might properly do so.
The State Auditor, upon his receipt from you of a copy of your said
letter to me, sent me a copy of his letter to you dated January 27, 1953,
in which he requested that the board designate him, or his department,
as its representative to audit a specific concessionaire. I judge from this
communication that he has not as yet asserted that he has any inherent
authority to make such an audit in the absence of such a designation, and
that he will make such an assertion, if at all, only after his said request
has been denied. Your second question, therefore, needs no present an-
swer; if and when it becomes of importance, it should be propounded by
the State Auditor, since it has to do with his powers and duties rather than
with those of the board. I Op. Atty. Gen. 562, 563; II Op. Atty. Gen.
100.
Very truly yours,
Geor(iE Fixgold, Atfornei/ (,'e/ural.
Urban Redevelopment Corporation under G. L. c. 121 A — Properly irhichi
can be Acquired.
State Housing Board.
Mar. 25, 1953.
Gentlemen: — You request my formal opinion "on certain questions
concerning the operation of chapter 121 A of the General Laws."
You have specified that the questions "relate to a development con-
structed upon vacant land by the city of Ljiwrence, and completed in 1949,
under the provisions of St. 1946, c. 372, § 6, as amended. The develop-
ment contains 100 single-family houses now occupied by veteran-tenants, J
all of whom have been given options to purchase." ^
Your questions are as follows:
"1. Section 10 of chapter 121A reads in part as follows: provided thati
such excise shall not in any year be less than an amount equal to that-
which the city or town would receive for taxes, at the rate for such year,
upon the average of the assessed values of the real estate held by suchi
corporation for the three years last preceding the acquisition thereof. In
the case of the Lawrence development, would the amount of this excise!
P.D. 12. 43
be based upon the assessed value of the houses which were tax exempt,
or on the assessed value of the vacant land upon which they were built?
"2. Section 10 of chapter 121A reads in part as follows: 'The real
estate and personal property of any such corporation shall for a period of
forty years after its organization be exempt from taxation under chapter
fifty-nine.' Does the forty-year provision in this section, and also in
section 16, prohibit the establishment of a corporation which requires
these special privileges, for only a period of twenty-five years?
"3. Can the Lawrence chapter 372 development be sold to an Urban
Redevelopment Corporation, established under the provisions of chapter
121A, prior to five years from the date of the completion of the develop-
ment?"
Question number three is the key to the entire problem and controls
the same. It is therefore considered first.
Section 3 of chapter 121 A includes a description of the type of property
subject to acquisition by an urban redevelopment corporation, and this
constitutes the legislative grant of the charter powers to such a corpora-
tion. The pertinent provision is as follows :
"... Such project shall consist of (a) the acquisition of one or more
areas wherein dwellings predominate which by reason of dilapidation,
overcrowding, faulty arrangement or design, lack of ventilation, light or
sanitation facilities, or any combination of these factors, are detrimental
to safety, health or morals, or one or more areas which are decadent to
such an extent as to have become a social or economic liability to the
community; or one or more areas which by reason of inappropriate sub-
division, the removal of means of transportation or a change in business
and economic practices or other like cause have become incapable of
beneficial use or development by private enterprise under existing law;
or one or more areas in which a large number of the buildings have been
destroyed b}'^ fire, flood, explosion or other calamity: ..."
Further information, elicited by this department, shows that the houses
in question cost about ten thousand dollars to build, are in reasonably
good condition and presently have a fair market value of about nine
thousand dollars; that said property in no way can be said to fall within
the provisions of section 3 (a) of chapter 121 A or any other section of
chapter 121 A.
While it is true that St. 1946, c. 372, § 6, cl. (3), requires the eventual
sale to private persons of dwelling units constructed under said chapter,
it is not true that the sale of such units to an urban redevelopment corpora-
tion is necessarily authorized thereby. The propriety of such a sale is to
be tested, rather, by the provisions of chapter 121 A, defining the power of
such corporations to acquire propert5^
The clear legislative intent leading to the enactment of chapter 121A
was to provide for the redevelopment of areas which are unfit for human
habitation, detrimental to the pubhc safety, liabilities to the community,
or which for other reasons should be reclaimed, restored or rehabilitated.
G. L. (Ter. Ed.) c. 121A, § 2. It is clear that the property in the city of
Lawrence to which j^our letter has reference is not such an area, and its
acquisition by an "urban redevelopment corporation" would not be in
furtherance of any project authorized by section 3 of said chapter.
It is my opinion, therefore, that the property which is the subject of
your inquiry is not such property that it could be sold to an urban re-
44 P.D. 12.
development corporation. In the light of this opinion the five-year period
is of no importance.
The opinion expressed herein makes it unnecessary to deal with ques-
tions one and two, the same now being of no force or effect.
Very truly yours,
George Fingold, Attorney General .
Construction of Public Works — • Substitution of Sub-bidders.
Mar. 30, 1953.
Dejyartmeni of Public Works.
Gentlemen: — • In your recent letter you requested that I make a re-
view of the authority of your department to substitute sub-bidders in the
awarding of contracts for the construction of public works.
In the matter outUned by you, concerning the Fall River State Pier, it
appears that the following pertinent bids were submitted :
Carlson ConHt. Corp. Hiilloran Const. Co.
(lowest bitUler) (7th lowest bidder)
Item 1 (Work of Gen. Contractor) . . $218,849.25 $208,521.50
Item 2 (Work of Subcontractor) . 356,844.00 401,093.00
$575,693.25 $609,614.50
Subsecjuent to the opening of the bids, the Halloran Construction Co.
offered to reduce its Item 2 bid involving subcontractors from $401,093.00
to $356,844.00, thus using the lowest sub-bids on file. Carlson Construc-
tion Corp. had already submitted this figure in its original bid. Such a
substitution of sub-bidders would reduce the total Halloran bid from
$609,614.50 to $565,365.50, a figure $10,327.75 lower than the Carlson bid.
It is my opinion that your department is not authorized to allow the
substitution of sub-bidders by the Halloran Construction Co. under the
foregoing circumstances.
General Laws (Ter. Ed.) c. 149, § 44C, provides:
"Bids from general contractors shall be for the complete project as
specified and shall include the names of all principal and such minor sub-
contractors as are designated in the proposal form, and the general con-
tractor shall be selected on the basis of such bid."
Authority to substitute sub-bids is found in part (D) of said section 44C
which provides:
"If after the selection of the general contractor, it be decided to consider
sub-contractors other than the ones named by the general contractor in
his proposal, the awarding authority, architect and engineer, or anj'- one
or more of them, and the selected general contractor shall jointi}'- consider
the names of all proposed sub-bidders and their amounts, as given in the
general contractor's proposal. ... If after the substitution of sub-
contractors under this section or subsection E, the selected general con-
tractor is no longer the lowest responsible and eligible bidder, then a new
selection shall be made and the sub-bidders of said newly selected general
contractor similarly considered."
p. I). 12. 45
The statute contemplates that a general contractor shall first be selected
on the basis of his total bid. The bid of the Carlson Construction Corp.
appears to justify its selection as such general contractor. Thereafter the
sub-bidders of such general contractor may be substituted under the
statute. The C'arlson Construction Corp. has already used the bids of
the lowest responsible sub-bidders so that there is no occasion for the
.substitution of sub-bidders.
In order to accept the bid of the Halloran Construction Co. it would be
necessarj^ for the department to make substitutions of sub-bidders prior
to the selection of the general contractor. Such a procedure is not author-
ized by the statute. lh(^ fact that in this particular case it would appear
that the Commonwealth might benefit by an award to the Halloran Con-
struction Co. does not of itself justify a departure from the requirements
of the statute. Cf. Gijford v. Commissioner of Public Health, 328 Mass.
t508.
A'ery truly j-'ours,
Geor(;e FiX(iOLD, Attorney General.
Ilaickers and Pedlers — • Installment Sales — ■ Sales on Approval.
Apr. 2, 1953.
Hon. Ernest A. Johnson, Commissioner of Labor and Industries.
Dear Sir: — You have requested my opinion as to the applicability of
G. L. (Ter. Ed.) c. 101, §§ 13, et seq., to salesmen for installment vendors
who go from house to house selling merchandise "on approval." You
state that as the result of such '\sales," "the purchaser keeps the mer-
chandise for a period . . . and if not satisfied therewith, he has the op-
tion of returning . . . [it] .... The vendor may have the opportunity
also of withdrawing the merchandise from the customer if it is found that
he has not a good credit rating."
Chapter 101, section 13, defines a "hawker" or "pedler" who is required
to be licensed under said chapter as "any person . . . who goes . . . from
place to place . . . selling or . . . carrying for sale . . . any goods,
wares or merchandise . . . ." Section 15 of chapter 101 exempts certain
persons, who might otherwise be deemed to fall within its purview, from
the provisions of said chapter, but none of the exempted classes include
such salesmen as you describe unless they can be said to be "persons sell-
ing by sample ... or othevwise for future delivery." Since you state that
the practice of these salesmen is to leave the merchandise with the pro-
spective buyer "on appro\'al," it is obvious that the transactions in ques-
tion are not for the "future delivery" of any merchandise, and hence that
the salesmen to whom you have reference are not exempted from the ap-
plication of said chapter 101 by the provisions of section 15.
A sale "on approval" has long been an estabhshed method for the
(n'entual transference of title to property from one person to another; see,
for example, G. L. (Ter. Ed.) c. 106, § 21, Rule 3(2), which has to do with
the presumed intent of the parties as to when title to merchandise shall
pass to the prospective buyer in such cases.
In the transactions which you describe, it is apparent that both the
salesman and the person with whom he leaves the merchandise enter into
46 P.D. 12.
their agreement with the expectation that the sale will probably be con-
summated by the passage of title at some future time ; it may well be that
the original arrangement between them immediately constitutes a "sale"
as that word is used in section 13.
But, in any event, it is my opinion that a salesman w'ho can actually
deliver goods to a prospective purchaser subject to such an agreement is
clearly carrying such goods for sale, and that he is therefore subject to
the pertinent provisions of chapter 101.
Very truly yours,
George Fingold, Attorney General.
Forest Products — Cutting Plan under G. L. c. 132, § 4^.
Apr. 2, 1953.
Hon. Arthur T. Lyman, Commissioner of Conservation.
Dear Sir: — You have requested my opinion as to whether or not your
department "is justified in seeking to penalize any timber operator who
proceeds with cutting operations where the landowner has failed to give
notice of his intention (to cut forest products on land devoted to forest
purposes) and to secure a cutting plan" under G. L. (Ter. Ed.) c. 132,
§§ 42-44, as amended. You state that it is the contention of certain such
operators "that while they are required by law to follow a cutting plan
proposed by the Division of Forestry, yet they are free to proceed as they
see fit if the owner has failed to secure the cutting plans."
Sections 40 to 45, inclusive, of chapter 132, were first enacted by St.
1943, c. 539, "An Act providing for the establishment of forest cutting
practices." The only amendments to said sections have been by St. 1952,
c. 427, which effected the amendments hereinafter described.
Said section 42, as originally enacted, required "every owner or operator
who proposes to cut (forest products) on land devoted to forest purposes,"
with certain exceptions apparently not here material, to notify the director
of the Division of Forestry of his intention, so that a cutting plan might
be prepared; section 43, as unamended, imposed a penalty upon any
person failing to comply with this requirement.
It should be noted that said sections did not specifically provide any
penalty for failure of either the owner or the operator to follow the cutting
plan prepared pursuant to such notice.
Section 42 was amended by the 1952 statute so as to provide that the
owner only should be the person to notify the director of his intention to
cut; it is presumably because the amendment failed to mention the op-
erator, as the original section did, that the contention of the operators
described in your letter is now made.
But the 1952 amendment to section 43 specificallj'^ provides for a pen-
alty not only upon the owner who fails to give notice under section 42, as
amended, but also against "whoever, . . . either as land or stumpage
owner or independent contractor fails to follow the plan of operations pre-
pared by said director." It was the obvious intent of the General Court,
in its enactment of the 1952 amendments to sections 42 and 43, to penalize
a failure to follow cutting plans as well as a failure to give a notice of in-
tentions, thus making these sections a more effective means of furthering
P.D. 12. 47
"the rehabilitation and protection of forest lands," the policy of the
Commonwealth as declared by section 40 of said chapter.
In my opinion, the new sections, fairly construed, require the owner of
lands to procure cutting plans, and the operator to follow them when pro-
cured; it is further my opinion that no operator can, without being sub-
ject to the penalty provided by section 43, as amended, proceed with a
cutting otherwise subject to the provisions of section 42, as amended, un-
less such cutting plan has been prepared, following the notice prescribed
by said section.
Very truly yours,
George Fingold, Attorney General.
Land Takiyigs by Massachusetts Turn-pike Authority — Authority of Gov-
ernor and Department of Public Works.
Apr. 13, 1953.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir : — You have requested my opinion on the following matter : —
"What authority does (a) the Governor and (6) the Commissioner of
Public Works have over the proposed land takings of the Massachusetts
Turnpike Authority?"
The Massachusetts Turnpike Authority (hereinafter called the Au-
thority) was established, and its powers and duties defined, by St. 1952,
c. 354, and the answers to your questions are to be found only in said
chapter.
Section 3 of said act contains the only provisions having to do with
your relationship with the Authority. They require the Governor, by
and with the consent of the Council, to make the original appointments
of the three members of the Authority, to designate which of them shall
serve as chairman, to fill vacancies in the membership of the Authority,
and to administer oaths of office to the members. He has no other func-
tions with relation to the Authority which, by section 3, is constituted as
a separate and distinct public instrumentahty. My answer to part (a)
of your question is, therefore: None.
Nowhere in said chapter 354 is mention made of the Commissioner of
Public Works, but I interpret part (6) of your question to relate to the
department headed by him, hereinafter referred to as the department.
Said section 3 specifically provides that the Authority shall not be
subject to the supervision and regulation of the department except as
otherwise provided by the act. Only in the following instances does
chapter 354 refer to the relationship between the Authority and the
department:
Section 1. The toll express highway to be constructed, maintained,
repaired and operated by the Authority shall be "at such location as may
be approved by the . . . department." Under this provision, it would
seem that the department, by withholding its approval of locations pro-
posed by the Authority, might have wide powers of control over the
legality of land takings.
48 P.D. 12.
Section 4. The department, with the approval of the Authority, may
incur obHgations and expenses for traffic surveys, borings, preparation of
plans and specifications, and other engineering services in connection with
the construction of the turnpike.
Section 5 (k). The department shall determine the amount and form
of the security to be given to the State Treasurer by the Authority for
the payment of such damages as may be awarded for land takings.
Section 6. The department's approval must be obtained for the
incorporation in the turnpike of any existing State highway, or part
thereof, or any partially completed State highway or any bridge w^hich
the Authority may deem necessary for a proper aUgnment of the turnpike.
Section 7. The department's approval must be obtained for the
relocation of any portion of any public highway.
Very truly yours,
George Fingold, Attorney General.
Piiblic Administrator — Service in County in trhich he does not Reside.
Apr. 21, 1953.
The Honorable Governor's Council.
Gentlemen : — I am in receipt of a letter requesting mj^ opinion on the
following :
"Whether a resident of one county may be appointed and serve as a
public administrator in and for another county in which he does not re-
side."
General Laws (Ter. Ed.) c. 194 covers the appointment, powers and
duties of a public administrator and limits the scope of his functions to
the administration upon the estates of persons "who die intestate in his
county or elsewhere, leaving property in his county to be administered."
Upon the death, resignation or removal of a public administrator the
probate court "shall issue a warrant to some other public administrator
in the same county . . ."
It would seem that the statute contemplated that the estates of per-
sons who die intestate should be administered by persons from the same
county and be subject to the jurisdiction of the probate court of that
county. Moreover, compensation is paid to a public administrator, not
out of the public treasury, but from estates subject to such administration.
In certain instances the district attorney of the county may also take
appropriate action in connection with matters relating to any estate under
the charge of a public administrator. It would seem cjuite inefficient and
impractical, if not totally unsound, to have a public administrator resident
in Barnstable County, for instance, administer estates in Essex County.
The statute relating to the appointment of public; administrators "as
a whole ought, if possible, to be so construed as to make it an effectual
piece of legislation in harmony with common sense and sound reason."
Schenck v. Buckley, 307 Mass. 186.
I am of the opinion, therefore, that a public administrator may not be
appointed in and for another county in which he does not reside.
Very truly yours,
George Fingold, Attorney General.
P.O. 12. 49
Department of l^ublic Utilities — Jurisdiction over Termini in Transporta-
tion by Vessel.
Apr. 24, 1953.
Department of Public Utilities.
Gkxtlemp:x: — In your recent request for an opinion you ask —
(1) Whether the Department of PubHc Utihties has jurisdiction to
order the Wilson Line of Massachusetts, Inc. to give service to Pember-
ton, and
(2) Whether the schedule of rates filed in 1952 has expired as the result
of a statement on said schedule that said rates expire on September 30,
1952.
(1) Aly answer to your first (luestion is that your department does not
have jurisdiction to order the Wilson Line to give service to Pemberton.
It is stated in G. L. (Ter. Ed.) c. 159, § 10, that the Department of
Public LUilities has authority to enforce provisions pertaining to the
general supervision and regulation of, and jurisdiction and control over,
the transportation or carriage of persons or property, or both, between
points within the Commonwealth by ships and vessels in excess of one
hundred gross tons using steam or Diesel engine as means of propulsion
Section 13 of chapter 159, authorizes the department to inquire into the
"rates, charges, regulations, practices, equipment and services" of such a
carrier in this Commonwealth.
There is no specific provision in the General Laws, however, giving the
department jurisdiction over the location of termini for such a carrier, as
there is with railroads (G. L. [Ter. Ed.] c. 159, § 16A; c. 160, §§ 85, 128),
street railways (G. L. [Ter. Ed.] c. 161, § 71), and carriers of property bv
motor vehicle (G. L. [Ter. Ed.] c. 159B, § 3).
In the abo\-e-stated statutes said carriers were retiuired to obtain from
the department a certificate of public convenience and necessity, which
certificate specifies the route or routes o\'er which the carrier may operate.
Xo such provision is required as to ships and vessels.
Thus by comparison and analysis we conclude that it was not the in-
tention of the Legislature to give your department jurisdiction over the
regulation of routes or termini. Tilton v. City of Haverhill, 311 Mass. 572.
In re Bergeron, 220 Mass. 472. MacBey v. Hartford Accident cV Indemnity
Co., 292 Mass. 105.
(2) My answer to your second question is that the schedules of rates
filed in 1952 do not expire on September 30, 1952.
Very truly yours,
Geor(jE Fix(;old, Attorney Ceneral.
Public Construction — Authority to build as based upon Appi'opriation of
Money.
Apr. 30, 1953.
His Excellency Christian" A. Herter, Governor of the Commonwealth.
Sir: — ■ You ask for my opinion "as to whether the mere appropriation
of the money by the Legislature is sufficient authority for the Common-
wealth to proceed with the construction of the proposed buildings for the
50 P.D. 12.
Westfield State Teachers' College upon the property in question without
further authorization." It appears that the only statutory reference to
the construction of the proposed new college buildings is in Item 7613-05
of section 2 of chapter 604 of the Acts of 1952, the act providing for the
special capital outlay program, in these words: ''Service of the Department
of Education . . . State I'eachers' College at Westfield : For the construc-
tion of a new college building, a dormitory with kitchen and dining facih-
ties, and a heating plant, including the cost of furnishings and ecjuipment,
to be in addition to the amount appropriated in item 7713-13 of section
two of chapter seven hundred and fifty-six of the acts of nineteen hundred
and fifty-one . . . $3,025,000.00."
In my opinion, said item is sufficiently specific to constitute an adequate
authorization to the Department of Education to proceed with the con-
struction of the proposed new college, subject to section 3 of chapter 604,
which requires the approval of plans, specifications and contracts therefor
by the Massachusetts Public Building Commission as a condition precedent
to any payment of money or the incurring of any obligation with relation
to said item, and "to the provisions of law regulating the disbursement of
public funds and the approval thereof," all as provided in section 1 of
said chapter.
You ask, further, whether you are correct in assuming "that the sepa-
rate appropriation for the drawings of the final plans is sufficient authoriza-
tion to proceed with" such plans. Your reference is, presumably, to
Item 7713-13 of section 2 of chapter 756 of the Acts of 1951, which pro-
vides: ''Service of the Department of Education . . . State Teachers' Col-
lege at Westfield: For the preparation of plans and specifications for a
new college building, a dormitory with kitchen and dining facilities, and a
heating plant . . . $125,000.00." My answer to you is in the affirmative ;
your attention, however, is called to section 3 of chapter 756, which would
seem to require the prior approval of the Pubhc Building Commission,
and to section 1 of said chapter, which makes said appropriation expressly
subject to general provisions of law regulating public expenditures.
Very truly yours,
George Fingold, Attorney General.
Department of Public Welfare — Responsibility for Neglected Children.
June 4, 1953.
His Excellency Christian A. Herter, Governor of the Commonwealth.
Sir: — • You have requested my opinion as to whether, under the provi-
sions of G. L. (Ter. Ed.) c. 119, "it is mandatory . . . that the Common-
wealth should take over the responsibility" for neglected children resident
in the city of Boston. You have enclosed with your letter a copy of a
letter dated April 30, 1953, from the Child Welfare Division of said city
to the Commissioner of Public Welfare, stating that "If it meets with
your approval, the Child Welfare Division . . . on a date set by you, will
no longer accept neglected children." You state in your letter that "It
is estimated that for the Commonwealth to take on this added responsi-
bility as apparently contemplated under chapter 119 .. . would add to
the cost to the Commonwealth approximately $750,000.00 per annum."
P.I). 12. 51
Your question coiicorn.s a matter of great public interest, and, I assume,
relates in one way or another to some official action which you contemplate;
for these reasons, 1 am happy to answer it, notwithstanding the fact that
it has to do primarily with the duties of the Department of Public Welfare
rather than with those of your office.
Prior to the enactment of St. 1900, c. 397, the law provided that the
city or town in which a neglected child had a settlement should make all
needful arrangements for his care and maintenance, and that only in a
case where such child had no known settlement in the Commonwealth
(or where the place of settlement had no facilities for his care) should he
be committed to the State Board of Lunacy and Charity. St. 1898, c. 496,
§ 35 (amended by St. 1898, c. 580, § 2). However, St. 1900, c. 397, § 2
provided explicitly that "Whenever it is made to appear . . . that . . .
any child ... by reason ... of neglect ... is dependent upon public
charity, the court . . . shall . . . commit the child, whether he has or has
not a settlement, to the custody of {the state board of charity) . . . and said
board shall provide for the care and maintenance of the child without expense
to the city or town of his settlement ..." (emphasis supplied). Said chap-
ter 397 further provided that the custody of such a child might, at their
request, be originally given by the court to the overseers of the poor of the
place of his settlement, and that the State Board of Charity should, upon
their recjuest, transfer its custody of any such child to such overseers,
"and such transfer shall thereafter relieve the Commonwealth from fur-
ther liability . . ."
This enactment became section 37 of chapter 83 of the Revised Laws
(1902), by which, however, it was provided that "the court . . . may
coynniit the child ... to the custody of said board" (emphasis suppUed).
In 1903, the Legislature amended the law to provide that commitments
of neglected children might be made as well to "some suitable person or
charitable corporation" as to the State Board of Charity or to the local
overseers of the poor; however, the provisions of the law relative to com-
mitment to such public agencies remained unchanged.
The law is essentially the same today, with the Department of Public
Welfare performing the functions of the former State Board of Charity
(see St. 1919, c. 350, pt. Ill, § 87). Thus, it is provided by G. L. (Ter.
Ed.) c. 119, § 44, that the court, after an adjudication that a child is
neglected, may either allow him "to be placed in the care of some suitable
person or charitable corporation" or "commit the child to the depart-
ment" (of pubhc welfare); and section 45 of said chapter provides for the
original commitment of such child to the local board of public welfare of
the place of its settlement, if such board so requests, and for the transference
by the department to su(;h board, upon the latter's request, of the custody
of a neglected child previously committed to the department, w^hich such
transfer "shall thereafter relieve the commonwealth from further liability
for his maintenance."
In answer to your question, then, it is my opinion that, if a neglected
child has been duly committed to the custody of the Department of
Public Welfare under chapter 119, it is the responsibility of that depart-
ment to maintain him until the object of his commitment has been accom-
plished (§ 44) or until its custody of him has, at the request of the local
board of public welfare of the place of his settlement, been transferred to
such board (§ 45). ,, ,
V ery truly yours,
George Fixgold, Attorney General.
52 P.D. 12.
Approval by Governor and Council — ■ Right of Department to act outside of
Approval.
Juke 29, 1953.
His Excellency the Governor and the Honorable Council.
Sirs: — ■ You have asked the following question:
"Assuming that a matter requires the consent of the Governor and
Council, what authority does a department, commission, board or simi-
larly constituted body have to revoke, amend, or modify the particular
act after the Council has so acted?"
The question is general in terms and does not refer to any particular
matter which is to be acted upon by the Governor and Council. Under
such circumstances my answer is directed only to the general principles
involved and should not be interpreted as applying to any particular
factual situation.
Matters which come before the Council may be broken down into two
general categories:
First, there are situations in which an act of the Governor is to be per-
formed by and with the advice and consent of the Council. For example,
IVIass. Const., pt. 2nd, c. II, § I, art. VIII, provides: ''The power of
pardoning offences . . . shall be in the governor, by and with the advice
of the council ..." Article IX of said section provides: "All judicial
officers . . . shall be nominated and appointed by the governor, by and
with the advice and consent of the council ..."
In situations which fall within the foregoing category, the responsibility
for the act is that of the Governor. The function of the Council is purely
advisory. The Governor must decide in the first instance whether or not
it is his duty to act at all. If he decides against taking any action, he need
siibmit nothing to the Council. If, on the other hand, he submits an
application for a pardon to the Council for its advice and the Council
should unanimously advise him to pardon, it would not be his duty to
act unless he himself should think that he ought to exercise his power.
Opinion of the Justices, 190 Mass. 616.
If the Council fails to give its consent, the act of the Governor will be
incomplete and ineffective. Murphy v. Casey, 300 Mass. 232, 236 (re-
moval of a commissioner of agriculture by the Governor will be ineffective
unless accompanied by the consent of the Council).
The second general type of situation to be considered involves matters
where the Governor and Council are to act together as an executive board.
For example, the Governor and Council shall examine the returned copies
of the record of votes for senators and issue summonses to such persons as
shall appear to be chosen by the voters. Mass. Const., pt. 2nd, c. I, § II,
art. III. Similarly, ". . . . the governor with the said councillors, or
five of them at least, shall, and may, from time to time, hold and keep a
council, for the ordering and directing the affairs of the Commonwealth,
agreeably to the constitution and the laws of the land." iNIass. Const,
pt. 2nd, c. II, § I, art. IV.
In these cases, the Governor and Council are to act together as an execu-
tive body and neither of them can lawfully act alone. Opinion of the Jus-
tices, 190 Mass. 616, 618.
P.I). 12. 53
Their joint act may be in relation to a matter which is to be performed
solely by the Governor and Council, such as their duty to examine returns
of the votes for senator referred to above. Secondly, their joint act may
relate to the supervision of boards and commissions acting under the
Governor and Council. Lastly, their joint act may relate to giving ap-
proval or consent to matters, acts or documents for which other State
officials or departments may be initially responsible.
The question you have presented relates to matters in the two latter
categories, and only such problems will here be discussed.
The powers of the Governor and Council over boards, commissions and
authorities serving directly under the Governor and Council are extensive.
G. L. (Ter. Ed.) c. 6, § 17, provides as follows:
"The armory commission, the art commission, the commission on ad-
ministration and finance, the commissioner of veterans' services, the com-
missioners on uniform state laws, the public becjuest commission, the state
ballot law commission, the board of trustees of the Soldiers' Home in
Massachusetts, the board of trustees of the Soldiers' Home in Holyoke,
the milk regulation board, the alcoholic beverages control commission,
the state planning board, the state housing board, the trustees of the state
library, the state racing commission, the Greylock reservation commis-
sion, the Port, of Boston Authority, the Massachusetts public building
commission, the Massachusetts commission against discrimination, the
outdoor advertising authority, the commission on alcoholism, the state
airport management board, the youth service board, weather amendment
board and the Massachusetts aeronautics commission shall serve under the
governor and council, and shall he subject to such supervision as the governor
and council deem necessary and proper'^ (emphasis supplied).
By exercising the supervisory powers given them by this statute, the
Governor and Council probably could, if they deemed it necessary and
proper, prevent the later rescission by such a commission or board of any
action once taken or proposed by it. In so far as your question relates to
such a commission or board, then its answer is fully within your own con-
trol.
The powers of the Governor and Council over departments and over
boards and commissions incorporated in the various departments are more
limited. As an executive board, the Governor and Council order and direct
the affairs of the Commonwealth as set out in Mass. Const., pt. 2nd,
c. II, § I, art. IV, quoted above. The departments, however, are subject
to the supervision and regulation of the General Court. See Mass. Const.,
Amend. LXVI, which provides as follows:
"On or before January first, nineteen hundred twenty-one, the execu-
tive and administrative work of the commonwealth shall be organized in
not more than twenty departments, in one of which every executive and
administrative office, board and commission, except those officers serving
directl}' under the governor or the council, shall be placed. Such depart-
ments shall be under such supervision and regulation as the general court
may from time to time prescribe by law."
The General Court has enacted numerous statutes conferring powers on
various departments, which powers are to be exercised only with the ap-
proval of the Governor and Council. For example, rules and regulations
54 P.D. 12.
adopted by the departments are ordinarily made subject to the approval
of the Governor and Council. G. L. (Ter. Ed.) c. 25, § 4 (Department of
Public Utilities). G. L. (Ter. FA.) c. 13, § 9A (Department of Civil
/ervice).
Departments may lease premises outside the State House or other pub-
He building only "with the approval of the superintendent (of buildings)
and of the governor and council and of the commission on administration
and finance . . ." G. L. c. 8, § lOA. Contracts for the construction of
State highways by the Department of Public Works are to be made with
the approval of the Governor and Council. G. L. (Ter. Ed.) c. 81, § 8.
In all these instances, the initial act is that of the department. The
functions of the Governor and Council are merely those of approval. If
the department fails to act, there is nothing for the Governor and Council
to approve.
But where the department has decided to act, its act is not complete
until first approved. Scullin v. Cities Service Oil Co., 304 Mass. 75 (where
a contract of the Department of Public Works for the sale of land was not
approved by the Governor and Council as required by law, the purchaser
acquired no rights under such contract). After approval has been given,
the department maj^ act only in accordance with the approval. Any
attempt to alter or amend the act will be improper unless the alteration or
amendment is itself approved by the Governor and Council.
Of course, if a contract approved by the Governor and Council contains
in it a specific clause allowing the contract to be altered or amended, then
an amendment made within the terms of such clause would not neces-
sarily require a subsequent assent by the Governor and Council.
It should be noted that the department may, in effect, nullify an approval
of the Governor and Council by failing to act after it has obtained the
necessary approval. For example, G. L. (Ter. Ed.) c. 81, § 8, provides
that "not more than ten miles of state highway shall be constructed . . .
in any one county in any one year, without the previous written approval
of the governor and council." An aproval to construct more than ten
miles of State highway in one county in one year would not necessarily
obligate the Department of Public Works to proceed with such con-
struction.
In some instances, the approval of the Governor and Council constitutes
the final act which may create a contract or may otherwise create rights
in third parties. Under such circumstances, the department would not be
in a position to nullify the approval of the Governor and Council by fail-
ing to act. In such cases, a binding contract or other right would have
come into being which could be enforced against the department involved.
The facts of any particular case would have to be examined to determine
whether such a right had been so created. For example, a simple contract
may come into being when both parties to the contract express their
mutual assent. It may well be that the assent of the Commonwealth is
finally indicated by approval of such contract by the Governor and Coun-
cil. On the other hand, if the contract is a sealed instrument, appro\al by
the Governor and Council may not be the final act which brings the con-
tract into being because a sealed instrument ordinarily must be deli\'ered
in order to be effective. Chandler v. Temple, 4 Cush. 285; see Williston
on Contracts, Rev. Ed. Vol. I, sec. 206.
In summary, where acts of departments, commissions, boards or simi-
larly constituted bodies require the consent of the Governor and Council,
P.D. 12. 55
such bodies may act only in accordaiu'c with the consent granted. If it
is desired to alter or amend the act approved, consent of the Governor
and Council must be obtained for such amendment.
If the particular body fails to act after consent of the Governor and
Council has been granted, ordinarily it cannot be forced to act unless (1)
it is a body serving directly under the supervision of the Governor and
Council, and the act is of such a nature that whether to perform it or not
would be a proper matter for direction by the Governor and Council under
its supervisory authority, or unless (2) the approval of the Governor and
Council creates a contract or other obligation which may be enforced by
a third party against the body involved.
It is hoped that the foregoing information will be helpful to you in the
performance of your official duties. I realize that it is general in its nature,
but you must appreciate that I can answer your question only on broad
principles of law, since no specific question is asked with reference to any
particular set of facts or circumstances. The answer to any particular
question would depend upon the particular facts and circumstances which
give rise to that question.
Very truly yours,
George Fingold, Attorney General.
INDEX TO OPINIONS
Approval by Governor and Council; right of department to act outside of
approval
Concessionaires, accounts of; State Airport Management Roard; kState
Auditor as agent of board
Electrical contractor to hold master's license
Fluorides, addition of, to public water
Forest products; cutting plan under G. L. c. 132, § 42 .
General Court, member of; veteran's retirement; effect of St. 1952, c. 634, § 8
Governor and Council, approval by; right of department to act outside of
approval
Gravel, sale of; Department of Mental Health
Hawkers and pedlers; installment sales; sales on approval
"Household furniture and effects," meaning of; property exempt from taxa-
tion
Instalbnent sales; hawkers and pedlers ; sales on approval
Joint venturers, corporation and partnership bidding as; public works .
Land, lease of, by a State coimnission; approvals required
Land takings by Massachusetts Turnpike Authority; authority of Governor
and Department of Public Works
Legislature, pensions of former members of; public records
Licensee, bond of; personal liability of public officer; Weather Amendment
Board
Massachusetts Public Building Commission; definition of "project"; fur-
nishings, equipment, etc
Massachusetts Turnjjike Authority, land takings bj^; authoiity of Governor
and Department of Public Works
Master's license ; electrical contractor
Mental Health, Department of; sale of gravel
Metropolitan Transit Authority ; eligibility for appointment as trustee .
Neglected children, responsibility for; Department of Public \\'elfare .
Non-civil service position; veteran's rights
Officer performing official services at home, salary paid to . . .
Pedlers and hawkers ; installment sales; sales on approval
Pensions of former members of the Legislature; public records
"Project," definition of; Massachusetts Public Building Commission
Property exempt from taxation; meaning of "household furniture and
effects"
Public administrator; service in county in which he does not reside
F*ublic construction; authority to build as based upon appropriation of money
Public Health, Department of; addition of fluorides to public water
Public officer, personal liability of; bond of licensee; Weather Amendment
Board 24
58 P.D. 12.
Public records; pensions of former members of the Legislature ... 23
Public Utilities, Department of; jurisdiction over termini in transportation
by vessel 49
Public Welfare, Department of; responsibility for neglected children . . 50
Public works, construction of; substitution of sub-bidders .... 44
Public works; corporation and partnership bidding as joint venturers . . 34
Public Works, Department of; repair of town wharf 38
Rent control ; delegation of authority to cities and towns .... 35
Salary paid to officer performing official services at home . . .31
State Airport Management Board; State Auditor as agent of board to audit
accounts of concessionaires 41
Statute, prospective effect of; settlement of a veteran 22
Sub-bidders, substitution of ; construction of public works .... 44
Taxation, property exempt from; meaning of "household furniture and
effects" 17
Termini, jurisdiction over, in transportation by vessel; Department of
Public Utihties 49
Trustee, eligibility for appointment as ; Metropolitan Transit Authoritj' 39
Urban redevelopment corporation under G. L. c. 121A; property which can
be acquired 42
Veterans' benefits; settlement of a veteran; prospective effect of statute 22
Veteran's retirement; member of the General Court; effect of vSt. 1952,
c. 634, § 8 29
Veteran's rights; holding non-civil service position for three years . . 27
Weather Amendment Board; bond of licensee; personal liability of public
officer 24
Wharf, town, repair of; Department of Public Works 38
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