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

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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