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

Public Document No. 12 



Ctie Commontaieaiti) o( s^nssatbusttts 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1954 







I 



Public Document No. 12 



Cbe Commontoealti) o( 9@assaci)usetts 



REPORT 



ATTORNEY GENERAL 



Year ending June 30, 1954 



POBUCATION OF THIS DOCUMENT APPROVED BY GeOROE J. CrON'IN, StATE PURCHASING AOENT. 

1100-12-55-916453. 



Cl)e Commontoealtl) of ^a00aci)U0etts; 



Boston, December 1, 1954. 
To the Honorable Senate and House of Representatives. 

I have the honor to transmit herewith the report of the Department of 
the Attorney General for the year ending June 30, 1954. 

Respectfully submitted, 

GEORGE FINGOLD, 

Attorney General. 



Cfte Commontoealtf) of ^as0ac|)U0etti8; 



DEPARTMENT OF THE ATTORNEY GENERAL 



Attorney General 
GEORGE FINGOLD 



First Assistant Attorney General 
Fred Winslow Fisher 



Assistant Attorneys General 
Jason A. Aisner^ James F. Mahan 

Harris J. Booras- Charles F. Marsland, Jr.* 

Samuel H. Cohen* Lowell S. Nicholson^ 

Malcolm M. Donahue John V. Phelan 

Joseph H. Elcock, Jr. Harris A. Reynolds 

Daniel J. Finn ^ William J. Robinson 

DoRicE S. Grace Arnold H. Salisbury 

Saul Gurvitz Barnet Smola 

Matthew S. Heaphy Norris M. Suprenant 

Andrew T. Trodden 

Assistant Attorneys General assigned to Department of Public Works 
Vincent J. Celia Floyd H. Gilbert 

James C. Gahan, Jr. Max Rosenblatt 

David L. Winer 

Special Assistant Attorney General assigned to Department of Public Works 
Frank Ramacorti 

Assistant Attorneys General assigned to Division of Employment Security 
Lazarus Aaronson^ Stephen F. LoPiano, Jr. 

Assistant Attorney General assigned to Office of State Rent Co-ordinator 
Hugh Morton 

Assistant Attorneys General assigned to State Housing Board 
Milton Abelson Keesler H. Montgomery 

Joseph H. Sharrillo^ 

Assistant Attorney General assigned to Veterans' Division 
Fred L. True, Jr. 

Chief Clerk to the Attorney General 
Harold J. Welch 

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

1 Appointed July 20, 1953. * Appointed Jan. 1, 1954. 

- Resigned Dec. 4, 1953. « Appointed Apr. 9, 1954. 

3 Appointed Nov. 17, 1953. 



$12,000 00 

249,355 00 

35,000 00 

15,000 00 


1,470 77 
19,000 00 



STATEMENT OF APPROPRIATIONS AND EXPENDITURES 
For the Fiscal Year, July 1, 1953, to June 30, 1954 

A ppropriations. 

Attorney General's Salary ........ 

Administration, Personal Services and Expenses .... 

Claims, Damages by State Owned Cars ...... 

Small Claims .......... 

New York, New Haven and Hartford Railroad Investigation (Old 
Colony Division) ......... 

Veterans' Legal Assistance ........ 

Total $331,825 77 

Expenditures. 

Attorney General's Salary ........ 

Administration, Personal Services and Expenses .... 

Claims, Damages by State Owned Cars ...... 

Small Claims .......... 

New York, New Haven and Hartford Railroad Investigation (Old 
Colony Division) ......... 

Veterans' Legal Assistance ........ 



Total 

Financial statement verified (under requirements of c. 7, § 19, of the General Laws), 
November 16, 1954. 

Approved for publishing. 

FRED A. MONCEWICZ, 

Comptroller. 



$12,000 00 


248,628 96 


35,000 00 


15,000 00 


1,466 37 


18,627 17 


$330,722 50 



^be Commontoealtl) of Q^as0ac|)U0ett0 



Department of the Attokney General, 
Boston, December 1, 19.^4. 

To the Honorable Senate and House of Representatives. 

Pursuant to the provisions of section 11 of chapter 12 of the General 
Laws, as amended, I herewith submit my report. 

The cases requiring the attention of this department during the fiscal 
year ending June 30, 1954, totaUng 16,175, are tabulated as follows: 



Extradition and interstate rendition 

Land Court petitions ..... 

Land damage cases arising from the taking of land 

Department of Public Works 

Metropolitan District Commission 

Department of Mental Health 

Department of Education 

Armory Commission 

Department of Conservation 

Department of Public Utilities 

New Bedford Textile Institute 
Miscellaneous cases, including suits for the collection of money due the 
monwealth ......... 

Estates involving application of funds given to public charities 
Settlement cases for support of persons in State institutions 

Pardons : 

Investigations and recommendations in accordance with G 
§ 152, as amended ....... 

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

Cases in behalf of Division of Employment Security 

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



Com 



127, 



90 
126 

972 
173 
3 
2 
1 
1 
1 
1 

5,453 

1,032 

32 



37 

4,612 

605 

3,034 

16,175 



In the Attorney General's last annual report, filed with the Secretary 
of State one year ago, attention was called to the fact that the depart- 
ment is the legal counsel for a multi-billion dollar business — the Com- 
monwealth of Massachusetts. 

It was also pointed out that as such, the department's duties are mani- 
fold and varied and that the already grave and heavy responsibilities of 
the office of Attorney General are ever increasing. 

Events of the 12 months of the fiscal year July 1, 1953, to June 30, 
1954, more than justify those statements. 



8 P.D. 12. 

The office of the Attorney General has sponsored new legislation, cre- 
ated new divisions within the department, rendered legal opinions to the 
proper authorities, represented the Commonwealth and the various State 
departments, officers and commissions in all judicial proceedings, examined 
and approved town by-laws, conducted investigations into the conduct of 
various agencies and certain public officials of the Commonwealth, co- 
operated with the district attorneys, conscientiously administered the 
law and vigorously prosecuted all violators. 

And yet, as time-consuming as these many activities have been, the 
office of Attorney General has also been able to give assistance to the 
needy, such as the unfortunate victims of the disastrous Worcester tor- 
nado and the hurricane on Cape Cod, continue economical land-taking 
reforms, initiate a campaign to clean up comic books and continue aid to 
veterans. 

Staffed by a corps of Assistant Attorneys General and law clerks whose 
character, ability, experience and training are above question, the office 
of the Attorney General also continued its drives against Communism, 
crime and corruption, took action against fake charities, established a 
Division of Charitable Trusts within the department and carried out a 
successful campaign of ridding the State of obscene literature. 

In August of 1953, the Attorney General of the Commonwealth was 
elected Vice-President and one of six members of the Executive Board of 
the National Association of Attorneys General, and was also named 
Chairman of the Eastern States Conference of Attorneys General, a terri- 
tory'' which includes Maine, New Hampshire, Vermont, Rhode Island, 
Connecticut, Massachusetts, New York, New Jersey, Pennsylvania, Dela- 
ware, West Virginia, the Virgin Islands and Puerto Rico. 

In October, 1953, he was appointed a member of the Committee on 
Narcotic Drug Control of the National Association of Attorneys General, 
which prepared a bill for introduction into the next session of Congress 
providing for the reception of narcotic drug addicts in appropriate Federal 
hospitals upon commitment thereto by the courts. 

Altogether, more than 150 separate divisions were established in the 
office of the Attorney General and all were integrated as a whole. Follow- 
ing is a more detailed account of a few of the department's activities in 
solving the numerous and intricate problems which arise daily during its 
conduct of the Commonwealth's legal business. No attempt has been 
made to list the many hundreds of individual matters handled at all the 
desks in the department and day after day in all the courts of the Com- 
monwealth and in the Federal courts. 

Land Damage Division. 

The organization and procedure installed for the trial and disposition 
of land damage cases continued to prove both highly efficient and economi- 
cal ; it greatly accelerated payment of damages to landowners and resulted 
in prompt termination of interest charges running against the Com- 
monwealth. 



P.D. 12. 9 

Briefly, after conferences were held with members of the judiciary and 
of the legal profession, the procedure consisted in establishing a separate 
Land Damage Division in the Department of the Attorney General, and 
staffing this division with six Assistant Attorneys General whose activities 
are exclusively devoted to the disposition of land damage litigation. 
Every land damage claim was reviewed, conferences were held with at- 
torneys for the landowners in efforts to effect settlements, and numerous 
pre-trial conferences were held Avith justices of the Superior Court in many 
counties, resulting in disposition of many cases by settlement. Every dol- 
lar of each settlement reached has been recorded in the public records of 
the Superior Court for each count3^ 

The number of cases disposed of during the above period totaled 447. 
The petitioners in these cases sought damages in the amount of $7,618,- 
935.76. The Attorney General's office disposed of these cases either through 
compromise or trial in the amount of $3,925,529.61, saving the Common- 
wealth $3,693,406.15. 

In recapitulation, for the period beginning with January 22, 1953, and 
ending June 30, 1954, this division disposed of 734 cases. The total amount 
of damages sought by the petitioners amounted to $14,696,701.76. These 
cases were disposed of by the Attorney General's office through trial or 
adjustment in the amount of $6,962,930.61, or a difference between the 
amount requested and the amount paid out of $7,733,771.15. The inter- 
est charges involved affecting these cases which were saved by the Com- 
monwealth amounted to $1,138,383.29. 



Criminal Division. 

The Criminal Division Avhich was established early in 1953, continued 
to work effectively and rapidly. I wish to reiterate that I have complete 
confidence in the overwhelming majority of our local law enforcement 
officers, but this division moved quickly whenever complaints and re- 
quests for assistance were received from interested citizens all over the 
Commonwealth and there appeared no disposition on the part of any 
officials to enforce the laws. 

With the co-operation of State troopers from the Department of Public 
Safety, raids were conducted on establishments where it had been reported 
that bookmaking operations were being conducted in the cities of Law- 
rence and Chelsea. In the former city the office of the Attorney General 
prosecuted 82 cases of persons charged with conspiracy on gaming charges, 
and in the latter city 40 were prosecuted. 

After careful investigation by this division, a .12 calibre pistol which a 
California manufacturer was selling here through the mails was banned 
in Massachusetts. A single-shot weapon called a "Kruger 98," this gun 
was an exact duplicate on a slightly smaller scale of a German Luger pistol; 
made of plastic, with a four-inch steel barrel, it shot a small pellet with 
sufficient force to drive it through cardboard. Most of the sales had, of 
course, been made to minors. 



10 P.D. 12. 

The Criminal Division also investigated and exposed two vicious "sym- 
pathy schemes" under which blind persons in Massachusetts were being 
callously exploited. The investigations were ordered after the department 
was informed that a Pennsylvania and a Chicago rug company were sell- 
ing machine-made rugs here under the misrepresentation they were made 
by blind persons and sold for the benefit of the blind here. Actually, 80 
per cent of the rugs were made on machines by sighted persons, and only 
20 per cent of the rugs were tied or finished off by blind persons. During 
the investigation it was discovered that the Chicago company alone had 
sold more than S 1,000,000 worth of such rugs in Massachusetts since 1931, 
and had been doing so illegally since 1937, when the Legislature passed a 
law against such operations. 

Both companies stopped doing business in Massachusetts after the 
department threatened criminal action if they continued. 

The Criminal Division also handled the cases of 377 defective delin- 
quents seeking their release from State institutions. Of the total, 246 such 
persons were granted their release, 69 were recommitted, 15 were adjudged 
to have been properly committed and their petitions were denied, 21 are 
presently undergoing observation periods, and 23 cases are in the Probate 
Courts. These matters were all handled under legislation sponsored by 
me in 1953, the so-called "Fingold Law," St. 1953, c. 645. The consti- 
tutionality of this new statute was established by the case of Dubois, 
Petitioner, 331 Mass. 575. 

This division also appeared for the Commonwealth in 12 habeas corpus 
proceedings brought by persons committed as criminally insane, and in a 
number of proceedings instituted by petitions for wi'its of mandamus and 
writs of error. It handled some 90 extradition cases, including requests 
from other States and requests by the Commonwealth of Massachusetts 
to other States, and, after investigation, made recommendations upon 37 
pardon petitions. 

Attorney General v. Basil W. Flynn. 

Following several months of intensive investigation, the Attorney Gen- 
eral ordered the institution of proceedings for the removal from office of 
District Attorney Basil Winslow Flynn, of the Plymouth District. This 
proceeding being of so serious a nature, I felt personally obligated to under- 
take the presentation to the Supreme Judicial Court of the charges and 
evidence against the district attorney. The basis of the charges related to 
certain defalcations by Mr. Flynn, and my authority for instituting the 
proceedings stemmed from the statutory obligation placed upon me of 
enforcing the proper application of charitable funds. 

Certain preliminary motions consisting of a motion to dismiss, motion 
to decline jurisdiction and a demurrer were filed by the district attorney 
in answer to the charges. The Supreme Judicial Court overruled the two 
motions and the demurrer, and on April 12, 1954, the matter was brought 
to a hearing before the full bench of the Supreme Judicial Court. 

The district attorney was charged with violating his fiduciary obliga- 
tions to a charitable trust of which he was trustee by having purchased 



P.D. 12. 11 

various properties of the trust through straws, whereby he amassed con- 
siderable personal profit, without the knowledge of his co-trustees. In 
addition, he was charged with keeping for his own use certain monies paid 
by the trust for secretarial purposes, with having allowed a company 
operated by the trust to pay certain health insurance covering himself 
and his family, and with impeding the investigation of the Attorney Gen- 
eral and faiUng to make full and frank disclosure of his administration of 
the trust. 

The court found the above charges estabhshed by the evidence pre- 
sented, and in an opinion handed down on May 28, 1954, stated that sufl&- 
cient cause was shown for the removal of the respondent from the office 
of district attorney for the Plymouth District. See Attorney General v. 
Flynn, 331 Mass. -113. This case is the latest in the series of removal 
proceedings under G. L. c. 211, § 4, but is to be distinguished from 
the two best-known petitions under that statute. Attorney General 
V. Tufts, 239 Mass. 458, and Attorney General v. FeUetier, 240 Mass. 264, 
in that none of the charges against Flynn had to do with his administration 
of the office of district attorney. The decision will stand as a landmark 
in the law, holding as it does, for the first time in Massachusetts if not in 
the entire United States, that the public good may, in a proper case, re- 
quire the removal of a public officer by reason of purely private acts. 

Charitable Trusts. 

For the first time in 105 years there has been an amendment to the 
law with reference to public charities. The duties of the Attorney General 
with reference thereto are stated in G. L. c. 12, § 8, to be: 

"He shall enforce the due application of funds given or appropriated to public 
charities within the commonwealth, and prevent breaches of trust in the adminis- 
tration thereof." 

The department investigated the public charity situation in Massachu- 
setts and found a great need for stricter supervision of some trustees who 
had large sums of money to handle for the purpose they were given. Tt 
was concluded that a separate division should be set up for the purpose of 
further investigation and supervision of the public charities under the 
jurisdiction of the Attorney General. Therefore, I filed a bill in the Legis- 
lature to establish a Division of Public Charities in the Department of 
the Attorney General. This bill was enacted and became law on June 1, 
1954. It is chapter 529 of the Acts of 1954. 

Immediately upon passage of the act, steps were taken to estabhsh this 
Division of Public Charities, thus fulfilling a need expressed by many former 
Attorneys General. The public charities within the concern of the Attor- 
ney General may be "more fully defined as a gift to be applied for the 
benefit of an indefinite number of persons." Jackson v. Phillips, 14 Allen 
539. 

The new law requires the trustee or trustees or governing board of every 
pubUc charity to file a written report annuaUy on or before June first. 



12 P.D. 12. 

^'Such report shall state: the names and addresses of the trustees, or if 
the public charity is an organization, the name and address of the organiza- 
tion and the names and addresses of the members of its principal govern- 
ing board and of its principal officers, and if the organization is a corpora- 
tion, the statute under which it was incorporated; the aggregate value of 
endowment and other funds, the aggregate value of real estate, and the 
aggregate value of tangible personal property held and administered by 
the public charity for charitable, educational, benevolent, humane or phil- 
anthropic purposes or for other purposes of public charity, all as shown by 
the books of the public charity at the end of said fiscal year, and the 
aggregate income and the aggregate expenditures of the public charity for 
such fiscal year." The filing of reports "shall not apply to any property 
held for any religious purpose by any public charity, incorporated or 
unincorporated." There is a filing fee of three dollars for each report. 
The division may upon application to the courts examine books and rec- 
ords and investigate the administration of any public charity. 

Heretofore, only copies of accounts filed in the Probate Court were re- 
quired to be presented to the Department of the Attorney General. Now, 
all public charities, incorporated or unincorporated, are required to file 
reports. 

A total of 1,032 matters involving public charities has been considered 
by the department during the past year. These matters included (1) peti- 
tions for allowance of wills containing public charitable bequests or cre- 
ating public charitable trusts; (2) petitions for instructions and for con- 
struction of wills; (3) petitions for the sale of real estate; (4) petitions 
for amalgamation; (5) petitions for allowance of accounts of executors 
and trustees; (6) petitions for approval of settlements and compromises; 
(7) petitions for application of the doctrine of cy pres; (8) petitions for 
the appointment and removal of trustees; (9) miscellaneous petitions. 
Many of these petitions required appearances in the Supreme Judicial 
Court and in the Probate Court. 

A greater number of matters involving public charities has been handled 
in the period covered by this report than ever before. Trustees who had 
not filed accounts in far too many years are rushing to file them now. As 
a result, millions of dollars in dormant funds will now be put to the use 
intended by the testators. 

Horror Comic Books. 

One of the most important problems confronting the department was 
that of the crime and horror comic books which were flooding the Common- 
wealth and doing incalculable harm to the youth of our State. The most 
difficult part of the problem was how to get rid of such so-called literature 
without establishing any form of censorship. 

First, the district attorneys were called in for a conference, out of which 
a committee was appointed consisting of three district attorneys — 
George E. Thompson of Middlesex County, Stephen A. Moynahan of 
Hampden and Berkshire Counties, and Garrett H. Byrne of Suffolk County 



P.D. 12. 13 

— and the Attorney General. This group then met with the distributors 
and dealers in Greater Boston, who promised their utmost co-operation in 
ridding their newstands of such books. It should be pointed out that it 
was necessary to work with the dealers and distributors instead of the 
pubUshers, since most of such comic books are published outside the 
Commonwealth. All of the distributors and dealers at the meeting agreed 
forthwith that upon notification from any law officer, they would within 
24 hours remove any objectionable book from their newsstands. 

Following this agreement, it was necessary to confer with a group rep- 
resenting the chiefs of police of the Commonwealth, who also promised 
their co-operation with the plan and issued a notice to that effect to all 
members of the Massachusetts Police Chiefs Association. In aid of this 
program, the department compiled a summary of the laws pertaining to 
obscene literature in G. L. c. 272, §§28 through 28H, for distribution to 
all police chiefs in the Commonwealth. 

This whole plan was put into effect immediately, with every prospect 
for success through co-operation rather than censorship. More than that 
the plan was given national attention when representatives of the comic 
book industry (except for three publishers) met in New York and ap- 
pointed Judge Charles F. Murphy to administer a stiff new code of ethics 
to be drawn up by the industry to offset the deserved criticism that horror 
"comic" books lead to youthful crime. With the comic book industry 
agreeing voluntarily to police its own publications, again there was no 
taint of censorship. 

Telephone Rate Case. 

The New England Telephone & Telegraph Company petitioned for in- 
crease of rates of $10,225,000 to the Department of Public Utilities. The 
department allowed it $7,446,800. The telephone company appealed to 
the Supreme Judicial Court claiming the decision of the department was 
confiscatory and unconstitutional. It raised three major points: (1) The 
Rate Base. (2) Rate of Return. (3) Debt Ratio. 

As to the rate base, the company raised for the first time in this Com- 
monwealth the issue as to whether or not the Department of Public Utili- 
ties was required to use the original cost (prudent investment) theory or 
fair value or reproduction cost theory in arriving at a rate base. The 
department u.sed the original cost theory and refused to use the fair value 
theory which was 52.9% higher than the original cost. The department, 
through the Attorney General, contended it had a right to use the original 
cost theory and was not required by our Constitution to use the fair value 
theory in arriving at a rate base. If the contention of the Telephone 
Company prevails it would mean an increase of about $11,000,000 to the 
ratepayers. 

As to the rate of return, the company asked for 7.33% but in its brief 
changed it to 6.7%. The Department of Public Utilities allowed 6.313% 
which the company claims in its appeal is confiscatory and unconstitu- 
tional. If the Supreme Judicial Court upholds the department's percentage 
it will result in a substantial saving to the ratepayer. 



14 P.D. 12. 

As to debt ratio, the company asked for a 35%-debt 65%-equity ratio, 
but the department would only approve a 45%-debt 55%-equity ratio. 
If the Supreme Judicial Court decides that the department was correct, 
then this would mean a saving of about $3,000,000 to the ratepayers. 

The company contended that it could not earn the rate of return allowed 
by the Department of Pubhc Utilities during the foreseeable effective 
period. This is not a legal question but a question of arithmetic to be 
determined at a later date. 

In this case the Attorney General represented the public at all the hear- 
ings before the Department of Public Utilities and represented the depart- 
ment on the appeal of the company to the Supreme Judicial Court. I am 
confident that the Supreme Judi<^al Court will decide the aforesaid ques- 
tions of law in our favor. 

Commission against Discrimination. 

As the result of a complaint filed with the Massachusetts Commission 
Against Discrimination against the Pullman Company of Chicago, many 
informal hearings and conferences were held at which an Assistant Attor- 
ney General represented the commission. As a result of these conferences 
and hearings, an agreement was reached which may change the 90-year- 
old employment policies of the company. 

Three major points agreed to by the companj'- under the terms of con- 
ciliation were: 

1. The complainant, a Negro, shall be promoted to the position of 
"carman helper apprentice," a position which was filled only by white 
employees previously. (The complainant was appointed a carman appren- 
tice helper January 8, 1954.) 

2. The company shall not discriminate against anyone seeking a posi- 
tion as porter or conductor solely because of his race, color, religious creed, 
national origin or ancestry. 

3. All employing officers of the company in IMassachusetts shall be noti- 
fied to comply with the State's fair employment practice statutes. 

Negotiations before the Massachusetts Commission Against Discrimina- 
tion have been watched by other States throughout the nation which have 
their own fair employment practice laws and in which the Pullman Com- 
pany hires men for its nationwide sleeping-car service. 

Veterans' Services. 

During the past fiscal year, the Department of the Attorney General 
handled 3,034 cases for veterans and their families, in addition to advising 
and assisting countless others who visited the office. It has also continued 
to give assistance and aid to various veterans' organizations as well as to 
State, county, city and town officials concerned with such problems. 

At this time, I should like to express my appreciation to the American 
Legion and the Veterans of Foreign Wars and their Auxiliaries who joined 
in the drive to alert the Commonwealth to the possibility of subversive 
acts by the Communist Party. At our request, headquarters of those 



M 



P.D. 12. 15 

organizations mailed to all their department commanders and auxiliary 
presidents summaries of all Massachusetts laws relating to Communism 
which had been prepared by Assistants in the department. I particularly 
wish to express appreciation to Coleman L. Nee, American Legion State 
Department Commander; Mrs. Alfred C. Hendrickson, State President 
of the American Legion Auxiliary; Irving L. Stackpole, Veterans of For- 
eign Wars State Department Commander; and Miss Blanche Williston, 
State President of the Veterans of Foreign Wars Auxiliary. 

Rent Control. 

In July, 1953, an Assistant Attorney General was appointed as counsel 
to the State Housing Rent Co-ordinator, Mr. Paul Goddard, and he as- 
sisted in the preparation of forms and regulations to be used by communi- 
ties adopting the provisions of rent control under chapter 43-4 of the Acts 
of 1953, and assisted in the preparation and presentation of a clarifying 
amendment to the act in tne 1954 session of the General Court. See 
St. 1954, c. 49G. 

On February 2, 1954, a taxpayers' bill of complaint was filed in the 
Supreme Judicial Court contesting the constitutionality of the Rent Con- 
trol Law, and seeking to enjoin all payments of public monies under it. The 
case was argued before a single justice and later before the full court. On 
June 16, 1954, the court denied the petition, finding the act to be constitu- 
tional. Russell V. Treasurer and Receiver General, 331 Mass. 501. 

State Contracts. 

Eleven contract claims were brought against the Commonwealth under 
G. L. c. 258. Altogether, the claims advanced by the suits amounted to 
$229,841.77 and they were disposed of by trial, settlement, or after an 
auditor's report, for S56, 139.87. 

The department also represented the Commonwealth in a claim against 
the Fall River Line Pier, Inc., for rent under a lease dated May 17, 1948. 
Suit was brought in the Superior Court of Bristol County for unpaid rent 
in the sum of S97,500, from May 17, 1950, through May 17, 1953. Pay- 
ment of the rent was withheld because of the failure of the Commonwealth 
to complete pier renovations under a collateral agreement which materially 
reduced the lessee's earning capacity at the pier. After protracted nego- 
tiations, the case was settled by payment of $57,500 on account of rent 
arrearages through May 17, 1954, the balance being incorporated into 
future payments under a revised schedule of rents over the balance of the 
term, the total payments for the entire term remaining unchanged. Rent 
payments due under the new schedule have been made when due. 

Lien petitions by sub-contractors are brought under G. L. c. 30, § 39, 
at the rate of about three per month. They are disposed of from time to 
time by final decrees entered by consent, either specifying payments as 
agreed, or dismissing the petitions. 

The suit commenced against John Bowen Co., Inc., on May 21, 1953, 
to recover for the Commonwealth a total of $789,712.20 paid under a con- 



16 P.D. 12. 

struction contract which the Supreme Judicial Court held to be void be- 
cause not awarded in compliance with the competitive bid statute, G. L. 
c. 149, §§ 44A-44D, inclusive, and the cross suit brought by John Bowen 
Co., Inc., seeking to recover a balance of $633,247.33 alleged to be due 
over and above the $789,712.20 referred to above for the fair value of the 
work done, have progressed through preliminary stages involving plead- 
ings and interlocutory motions relating thereto. Actual trial of the cases 
is now in order and is anticipated before the end of 1954. 

Public Administration. 

Estates of persons who die, without will or heirs, are administered by 
public administrators, and, after the payment of debts, escheat to the 
Commonwealth. G. L. c. 190, § 3 (7). The relationship of the Attorney 
General to such administrators derives from the statute requiring him to 
represent officials of the Commonwealth and from c. 194, § 4, which pro- 
vides that ''The state treasurer shall be made a party to a petition for 
administration by a public administrator, and shall be given due notice of 
all subsequent proceedings ..." The Attorney General appears on be- 
half of the State Treasurer on the sale of real and personal property, 
approval of accounts and on the question of the genuineness of alleged 
heirs. 

The 59 pubhc administrators have paid the sum of $73,945.16 into the 
treasury of the Commonwealth during the period covered by this report. 

Insurance and Motor Vehicles Appeal Boards. 

An Assistant Attorney General was assigned to attend hearings of the 
Insurance Appeal Board and the Motor Vehicles Appeal Board and during 
the past fiscal year he attended a total of 2,252 such hearings. 

Workmen's Compensation. 

The following is a list of the monies expended by the Commonwealth 
during the last fiscal year in payment of workmen's compensation benefits 
to injured State employees under the provisions of G. L. c. 152, and also 
payments made to doctors and hospitals in the treatment of said employees : 

Compensation payments, including dependency payments . . $348,344 36 

Doctors' bills 65,936 26 

Hospital bills 55,979 70 

During the period in question, there were processed in the office of the 
Attorney General the following: 

Employer's first report of injury ...... 4,612 

Medical bills 2,500 . 

Agreements for compensation, including agreements for dependency 

compensation ......... 500 

Resumption of compensation agreements ..... 25 



P.D. 12. 17 

The latter three figures are approximate since there is no exact count 
made because of the considerable volume of these documents and the need 
for handling them expeditiously. 

Further, the office of the Attorne}'' General appeared before the Indus- 
trial Accident Board in approximately 250 cases. These cases include not 
only claims by injured employees of the Commonwealth, but also those 
cases arising under sections 65, 65N, 37 and 37A of said chapter 152. 

Motor Tort Cases. 

Under G. L. c. 12, § 3B, the office of the Attorney General handles all 
claims arising out of the operation of State-owned motor vehicles by State 
employees within the scope of their employment. In the last fiscal year, 
179 such cases were disposed of either bj' settlement or trial. There were 
many cases with serious personal injuries wherein plaintiff's claims for 
damages exceeded the sums for which this department may settle cases 
without trial ($5,000 per person for injuries or death, and $1,000 for prop- 
erty damage). Such claims, of course, had to be fully tried before a court; 
in a number of them, the resulting finding was in favor of the Common- 
wealth 

COMMTJNISM. 

On April 1, 1954, an apphcation was made before Chief Justice Adlow 
of the Boston Municipal Court for a search and seizure warrant for any 
evidence obtained at the Communist Party Headquarters, 2 Park Square, 
Boston, following which, on the same date, a raid, led by an Assistant 
Attorney General, was effected on the said premises. A quantity of sub- 
versive and inflammatory literature was seized by virtue of said warrant. 

On April 2, 1954, application for complaints against one Otis Archer 
Hood was made at the Boston Municipal Court before Chief Justice Adlow 
who, upon hearing the evidence, issued complaints against Hood alleging 
that he was a member of a subversive organization, to wit, the Communist 
Party, kno\\ ing the said organization to be subversive in violation of G. L, 
c. 264, § 19, and further alleging that Hood did contribute money to the 
Communist Party on two different occasions in violation of G. L. c. 264, 
§ 23. He was arrested on said complaints and admitted to bail in the 
amount of $5,000. On the same day. Hood, without prior notice to the 
Attorney General, filed a bill in equity in the Suffolk Superior Court in 
Equity, No. 68111, for a declaratory judgment seeking to have the Anti- 
Communist Law declared unconstitutional and further seeking to enjoin 
the Attorney General from criminally prosecuting Hood for violations of 
chapter 264. (This matter, never heard upon its merits, was discontinued 
by the petitioner after the close of the fiscal year.) 

The complaints issued by the Boston Municipal Court were continued 
and during the interim the Attorney General presented evidence before 
the Suffolk County Grand Jury, which returned two indictments against 
Otis Archer Hood on April 8, 1954, both based upon said chapter 264. 

On April 9, 1954, the defendant was brought into court on a warrant 
and, after being allowed two weeks for filing special pleas, pleaded "not 



18 P.D. 12. 

guilty" to the said indictments. He was released on bail in the sum of 
$5,000 on each indictment for his appearance before the court when needed. 
On April 23, 1954, Hood filed motions to quash the indictments, which 
were argued on May 20, 1954, before Murray, J., of the Superior Court. 
On June 24, 1954, Justice Murray reserved the case for report before 
trial to the Supreme Judicial Court, under an act passed by the Legisla- 
ture in 1954 permitting such action in criminal cases. The full court has 
yet to pass upon this matter. 

Guarantee Fire & Marine Insurance Company. 

The Guarantee Fire & Marine Insurance Company, duly organized 
under the laws of the State of South Carolina, was never admitted to do 
business in Massachusetts by the Commissioner of Insurance as a foreign 
insurance company under the provisions of G. L. c. 175. For some time 
prior to November, 1953, however, it had done business through various 
agents in Massachusetts and issued policies on colHsion, property damage 
and extraterritorial risks. 

On information received, the Insurance Department of the Common- 
wealth concluded that the company was about to \vithdraw from Massa- 
chusetts banks and depositories assets totaling $167,000, which sum rep- 
resented the total premium collection from Massachusetts policyholders. 
Had this taken place there would have been no funds available for attach- 
ment by any claimant against the company. In the event of litigation, 
there was no authorized agent upon whom service of processes could be 
made. 

Upon official receipt of a complaint from the Commissioner of Insurance, 
this department immediately filed a bill in equity seeking injunctions pre- 
venting this company from effecting such withdrawals. 

The court granted all the injunctions requested. 

Following numerous conferences with attorneys for the company and 
other respondents, a stipulation of settlement was entered into, providing, 
among other things, that any and all withdrawals by check, draft, or other- 
wise, of funds in the possession of the depository banks should require and 
bear the signature of the Commissioner of Insurance, and that no monies 
should be paid to the company until a determination had been made by 
the Commissioner that a surplus existed over and above the total of any 
and all outstanding claims. 

This case marked a precedent in that it was the first time such a result 
was accomplished without receivership proceedings. 

Mental Health. 

The Department of the Attorney General handles cases involving collec- 
tions for the Commonwealth of claims for maintenance and support of 
patients in the several State mental health institutions. During the period 
from July 1, 1953, to June 30, 1954, 30 cases were settled and the sum of 
$47,624.20 collected. 



P.D. 12. 19 



State Housing Board. 

Three Assistant Attorneys General are assigned on a full-time basis to 
the service of the State Housing Board. During the past fiscal year, they 
have been called upon to give advice and legal assistance to said board 
upon a multitude of problems, including reviews of title abstracts, the 
organization of local housing authorities, the drafting of legislation de- 
signed to clarify and improve existing legal procedures, and the review 
and approval of note issues, and they have attended several hundreds of 
hearings concerning contract disputes and other associated controversies. 

Town By-Laws. 

l^y virtue of the provisions of G. L. c. 40, § 32, before a town by-law 
takes effect it must be approved by the Attorney General. In this con- 
nection, 209 town by-laws were processed by an Assistant Attorney Gen- 
eral assigned to this work. Realizing the uncertainty and inconvenience 
entailed by any delay in this department in acting upon by-laws sent here 
for approval, it has been the department's policy to see that each by-law 
sent in is studied, acted upon and returned with all possible speed. 

Worcester Disaster. 

Immediately following the disastrous tornado which struck the Worces- 
ter area on June 9, 1953, a special branch of the Department of the Attorney 
General 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 victims. This office was kept open seven 
days a week and all advice and help given was free. Help in establishing 
this branch office was swiftly given by the Worcester County Commis- 
sioners, who co-operated fully up to the closing of the office on July 3, 
1953. Altogether, more than 1,000 distressed persons were given free legal 
advice, were shown how to fill out various necessary forms, and were given 
assistance in locating agencies to help them with temporary relief. Per- 
sons who had some basis for litigation in court were referred to their own 
lawyer or to the Legal Aid Society. 

This branch office also assisted many tornado victims in replacing lost 
U. S. Savings Bonds, by filling out forms for securing the numbers of the 
lost bonds from the Treasury Department. The Assistant Attorneys Gen- 
eral assigned to this office also advised heads of State departments handling 
disaster relief. In many cases the Assistants prevented the tornado suf- 
ferers from being victimized by unscrupulous contractors. 

Conclusion. 

Again I wish to express my appreciation to His Excellency the Governor 
of the Commonwealth, to the Legislature, and to all the other constitu- 
tional officers of the State government for their helpful co-operation during 
my administration. 



20 P.D. 12. 

I also wish to express appreciation to the Assistant Attorneys General, 
to all others associated in the department, to the district attorneys and to 
the members of the police, State and municipal, upon whose fidelity, 
ability and co-operation depends the careful, efficient and just administra- 
tion of the Department of the Attorney General. 

Respectfully submitted, 

GEORGE FTNGOLD, 

Attorney General. 



OPINIONS. 



Reitirement, Effective Date — Immediate Appointment to New State Office. 

July 8, 1953. 
His Excellency Christian A. Herter, Governor of the Commonwealth. 

Sir : — You have informed me that you have received a request for 
retirement under the provisions of G. L. c. 32, § 58, as most recently 
amended by St. 1950, c. 688, § 3, from an official of the Commonwealth 
who is a veteran within the meaning of that term as defined in section 1 
of said chapter 32, and who has been in the service of the Commonwealth 
continuously for more than thirty years. You have advised me that 
on March 30. 1943, this official submitted a request for retirement under 
the provisions of G. L. c. 32, § 58, as then in force, and that on March 31, 
1943, the then Governor, as retiring authority, approved the said request 
for retirement. You have also advised me that following approval of said 
request for retirement and on the same day, the official in question was 
appointed commissioner of the department in which he had been serving 
and that he continued in that position until July 20, 1950, when he re- 
signed and again on the same day was appointed head of a division in the 
executive department, which position he still holds; that since the ap- 
proval of his application for retirement there has been no interruption of 
the official's active service or salary and that there has been no payment 
to him of a retirement allowance or pension. 

You have asked my opinion whether, in the light of these facts, you 
may approve said official's present request for retirement from the active 
service of the Commonwealth under the provisions of G. L. c. 32, § 58, 
as now in force. 

G. L. c. 32, § 3 (7) {g), as now in force, provides: 

"Any person retired under the provisions of this chapter, or under cor- 
responding provisions of earlier laws or of any other general or special law, 
shall receive only such benefits as are allowed or granted by the particular 
provisions of the law under which he is retired." 

I infer from the above-quoted statutory provisions, for the purposes of 
this opinion only, that if the official in question was retired in 1943 under 
G. L. c. 32, § 58, as then in force, he may not now be retired under the 
provisions of that section as now in force, even if otherwise eligible. 

Therefore, the basic question raised by this official's present application 
for retirement is whether he was retired in 1943. This question may be 
otherwise stated as follows: Was a person, in the active service of the 
Commonwealth, who was eligible for retirement under G. L. c. 32, § 58, 
and who applied for retirement and received the approval of the retiring 
authority, thereby retired from active service within the meaning of that 
statute notwithstanding that said person was immediately appointed to 



22 P.D. 12. 

another position in the service of the Commonwealth without interruption 
of his active service or salary then or to date? 

At the outset I wish to observe that the files of this office indicate that 
certain aspects of the "retirement" status of this official were the subject 
of an opinion rendered by one of my predecessors on April 27, 1943. How- 
ever, the request for said opinion, from the Comptroller, posited that the 
official had then in fact retired, so that the present question was not pre- 
sented and, therefore, not considered in said opinion. 

In March of 1943, when this official applied for retirement thereunder, 
G. L. c. 32, § 58, read as follows: 

"A veteran who has been in the service of the commonwealth, or of 
any county, city, town or district, for a total period of thirty years, shall, 
at his own request, with the approval of the retiring authority, be retired 
from active service at one-half the regular rate of compensation paid to 
him at the time of retirement, and payable from the same source." 

It will be noted that the wording of the statute clearly distinguishes the 
approval of the retiring authority and the retirement itself. It is my 
opinion, therefore, that the approval of the retiring authority does not 
itself retire the applicant. 

G. L. c. 32, as amended, has never contained a definition of the term 
"retirement." There is, however, language in decisions of our Supreme 
Judicial Court which is at least explanatory of the term. "In the case at 
bar the petitioner became separated from the classified service by reason 
of his retirement," Horrigan v. Mayor of Pittsfield, 298 Mass. 492, 496-497. 
"Retirement is commonly a separation from the classified service," 
McKenney v. Dohhruiz, 315 Mass. 39, 41. 

See also Feeney v. Metropolitan Life Insurance Co., 262 Mass. 238, 
wherein it is stated that retirement means the act of retirement or the 
state of being retired, and Lyon v. Commr. of Corporations, 258 Mass. 450, 
452, where it is pointed out that a retirement allowance is an allowance 
paid by the Commonwealth (or other employer) to one who has ceased to 
render active service. 

It will be noted that G. L. c. 32, § 58, both in its present form and as it 
read in 1943, employs the phrase "retired from active service." The 
Supreme Judicial Court in Kennedy v. Holyoke, 312 Mass. 248, construed 
this phrase, as used in the similar context of G. L. c. 32, § 57, to mean 
that an employee must be in active service at the time of retirement. In 
my opinion, this phrase means also that an employee must leave active 
service in order to be retired. It is a truism to say that in order to be 
retired from active service a person must be retired from active service, 
i.e., must be separated or withdraw from active service. 

I conclude from the foregoing, as well as from the common understand- 
ing of retirement, that the substance of retirement is separation from 
active service and that a person who has not been separated from active 
service following approval of his application for retirement has not been 
retired. 

I wish to point out that I am not here deciding that the right to retire 
under a statute can accrue only when the person claiming such right has 
actually left the active service. This is not a case where the issue is one 
of a right to retire. This is a case where the issue is whether a person who 
was and is entitled to retire under a given statute has retired, i.e., whether 
he has done all the statute requires for establishment of retirement status. 



P.D. 12. 23 

I find support for the conclusion heretofore stated in a decision dealing 
with what is, in my opinion, the converse of the subject situation. In 
Caswell V. Somerville Retirement System, 306 IMass. 373, the basic issue 
before the court was whether certain police officers who had been appointed, 
confirmed and sworn in as such before December 27, 1930, but whose daily 
routine service and pay began on January 11, 1931, were in active service 
on January 1, 1931, within the meaning of an applicable pension law 
(G. L. c. 32, § 83), which provided for the retirement "from active serv- 
ice" of certain police officers disabled for duty. It was held that they 
were not. In my opinion, it follows that if a person appointed, confirmed 
and qualified is not in active service for retirement purposes until he begins 
to perform his duties, a person who has received approval of his applica- 
tion for retirement has not been retired from active service until he ceases 
performance of his duties. 

Since this official has never been retired, it remains only to consider 
whether he is now barred from retirement on some other ground because 
of the submission and approval of his retirement application in 1943. 
Otherwise stated, must this official be denied retirement under the present 
law because he applied for and erroneously thought he had achieved re- 
tirement status under an earlier law? Tn brief, is he estopped now to 
claim retirement? In my opinion there is no estoppel here. 

" In order to work an estoppel it must appear that one has been induced 
by the conduct of another to do something different from what otherwise 
would have been done and which has resulted to his harm and that the other 
knew or had reasonable cause to know that such consequence might 
follow." Delaware and Hudson Co. v. Boston Railroad Holding Co., 328 
Mass. 63, 80. 

On the facts stated, it is apparent that the Commonwealth has not been 
misled to its harm. No payment of a retirement allowance or pension has 
ever been made. Both the Commonwealth's agents and this official may 
have been mistaken as to his status, but otherwise their relative positions 
have remained unchanged, with the Commonwealth continuing to receive 
the benefit of his services. 

It is, therefore, my opinion that you may approve said official's present 
request for retirement from the service of the Commonwealth under the 
provisions of G. L. c. 32, § 58, as now in force. 

Very truly yours, 

George Fingold, Attorney General. 



State Plan for Vocational Rehabilitation — Administration of Such Plan. 

July 8, 1953. 

Hon. John J. Desmoxd, Jr., Executive Officer, State Board for Vocational 

Education. 

Dear Sir : — You have recently asked this department for an inter- 
pretation of certain provisions of St. 1952, cc. 585 and 630, discussed below. 

Since the provisions in question have to do with your official duties, 
and those of the board of which you are the executive officer, I am happy 
to comply with your requests. 



24 P.D. 12. 

1. You inquire whether the Massachusetts Rehabilitation Commission, 
established by section 1 of said chapter 630 (hereinafter called the com- 
mission), or the State Board for Vocational Education (hereinafter called 
the board) is the sole agency for the administration of the State plan for 
vocational rehabilitation; you point out that the provisions of PubUc 
Law 113, 78th Congress (29 U. S. C. §§ 31 ff) require that the board rather 
than the commission be such agency if said State plan is to be approvable 
thereunder. 

While chapter 630 provides that the commission "shall administer the 
provisions of . . . PubUc Law 113 . . ." as to certain types of rehabili- 
tation, it also creates the commission as a sub-committee of the board, which 
is charged by said chapter with the duty of co-operating with the Federal 
Security Agency, or its successors, in the administration of Public Law 
113, "and to secure for the commonwealth the benefits thereof." It could 
not have been the legislative intent to nullify its directive to the board 
by having the commission's authority as to certain aspects of the program 
superior to that of the board; nor could the commission, which is a sub- 
committee of the board, assume to possess any powers which the board itself 
does not have. Accordingly, in my opinion, the functions of the commis- 
sion are in every respect subordinate to the overall powers of the board, 
which remains as the sole agency authorized to administer, supervise and 
control said State plan. Both the board and the commission have assumed 
this to be true since the effective date of chapter 630. 

2. You inquire, also, whether the primary responsibility for the direction 
of the administration of the State vocational rehabilitation program rests, 
under our laws, upon a full-time program director, as required by the gov- 
erning Federal regulation. My answer to this question, after a careful 
analysis of G. L. c. 15, as amended by said chapters 585 and 630, is in the 
afhrmative. I have discussed this problem at length with the Director of 
the Division of Vocational Rehabilitation, and am informed that, subject 
to the supervision and control of the board, he performs the duties of full- 
time administrator of said program. The commission assumes no admin- 
istrative functions, acts only as an advisory group, and in no way inter- 
feres with the director's management of the State program. The director, 
the commission and the board have all heretofore interpreted the provi- 
sions of said chapter 15, as amended, as requiring the director to assume 
primary responsibility for the direction of the administration of said pro- 
gram ; in my opinion, this interpretation of the several provisions of chap- 
ter 15, as so amended, is correct. 

3. You also inquire whether the provisions of chapter 630 relative to 
the functions of the board are "voided" by those provisions of chapter 585 
which refer to the "divisions" of vocational rehabilitation and of voca- 
tional education. I answer your question in the negative. Both chapters 
were enacted on the same day, and amend different sections of chapter 15. 
They are, under common principles of legislative interpretation, to be read 
so that no provision of one will conHict or be inconsistent with any pro- 
vision of the other. It is clear that there was no legislative intent, in the 
enactment of chapter 585, to detract from the force of those provisions of 
section 6 A of chapter 15 which existed prior to the enactment of chapter 
630, and which were repeated therein, that the board should be the body 
to co-operate with the appropriate Federal agency (or department) to 
secure for the Commonwealth the benefits of Public Law 113. The amend- 
ments effected by said chapters are, in my opinion, to be interpreted as 



J 



P.D. 12. 25 

providing that the board shall retain control over the activities of the 
divisions above referred to, and over those of their directors, insofar as 
such activities relate to the State program of vocational rehabilitation. 
While section 4 of chapter 15, as amended by chapter 585, provides that 
each of the several divisions therein listed shall be under the general 
supervision of the Commissioner of Education, it is my opinion that the 
board, under the provisions of section 6A of chapter 15, as amended by 
chapter 030, has the specific supervisory powers of the State programs 
which the Legislature must have intended it to assume in order to cjualify 
the State plan for vocational rehabilitation for approval under said Public 
Law 113. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Massachusetts Business Development Corporation — No Filing Fee for 

Organization Certificate. 

July 21, 1953. 
Hon. Edward J. Cronin, Secretanj of the Commonwealth. 

Dear Sir: — You have asked the opinion of this office as to the follow- 
ing question: 

"Should the Massachusetts Business Development Corporation, estab- 
lished under St. 1953, c. 671, pay a filing fee upon filing a certificate under 
G. L. c. 155, § 13, as provided in G. L. c. 156, § 53 or in G. L. c. 156, § 55?" 

In ni}^ opinion no filing fee is required. 

Chapter 671 of the Acts of 1953 sets forth no specific requirement for a 
filing fee. Section 2 of said chapter provides that the corporation "shall 
be subject to, and have the powers and privileges conferred by, the provi- 
sions of chapter one hundred and fifty-five and sections eighteen, twenty- 
six, twenty-seven, thirty-one, thirty-three, and thirty-four of chapter one 
hundred and fifty-six of the General Laws as presently enacted or here- 
after amended, except so far as said provisions are inconsistent with or 
otherwise restricted or limited by the provisions of this act." 

Chapter 155 of the General Laws makes no provision for payment of a 
fee. Likewise, none of sections 18, 26, 27, 31, 33 or 34 of chapter 156 of 
the General Laws makes provision for a filing fee. It cannot be assumed 
that the Legislature overlooked sections 53 and 55 of chapter 156 in pro- 
viding that only sections 18, 26, 27, 31, 33 and 34 of said chapter should 
apply to the new corporation. 

We thus find no statutory requirement for a filing fee, and none can be 
required without statutory authorization. 

Furthermore, section 15 of chapter 671 of the Acts of 1953 provides in 
part as follows: 

"Whenever the certificate required by section thirteen of chapter one 
hundred and fifty-five of the General Laws has been filed in the office of 
the secretary of the commonwealth, said secretary shall issue and deliver 



26 P.D. 12. 

to the incorporators a certified copy of this act under the seal of the 
commonwealth, and said corporation shall then be authorized to com- 
mence business, and stock thereof to the extent herein or hereafter duly 
authorized may from time to time be issued." 

If a filing fee were required, one would expect at least to find provision 
therefor in this section. 

Very truly yours, 

George Fingold, Attorney General, 

By Harris A. Reynolds, 

Assistant Attorney General. 



Department of Public Works — Division of Waterways — Use of Capital 
Outlay Funds for Repairs. 

July 22, 1953. 

Mr. RoDOLPHE G. Bessette, Director, Division of Waterways, Department 

of Public Works. 

Dear Sir : — You have recently asked this department whether Capital 
Outlay Funds authorized for use by St. 1952, c. 604, Item 7622-01 may be 
used for the purpose of making a preliminary investigation in connection 
with repairs at the State Pier in New Bedford, Massachusetts. The in- 
vestigation would consist of an examination by a diver of a portion of a 
sea wall around the pier from low water line to the bottom of the wall 
and of observations to determine the condition of the first floor framing 
and the fill under the Immigration Building located at the pier. 

From the information submitted by you, it appears that the contem- 
plated work is for repairs and is not for capital improvements. For this 
reason the cost of such repairs may not be charged to Capital Outlay Funds. 

Chapter 604 of the Acts of 1952 is entitled "An Act to provide for a 
special Capital Outlay program for the Commonwealth." The provisions 
here pertinent are as follows: 

"Section 1. To provide for a special program of construction, recon- 
struction, alteration and improvement of various state institutions and 
properties, and for the purchase of certain property, the sums set forth in 
section two of this act, for the several purposes and subject to the condi- 
tions specified in said section two, are hereby made available, .... 

"Section 2. 

7622-01 For the improvement, development, maintenance and protec- 
tion of rivers, harbors, tidewaters and shores within the com- 
monwealth, as authorized by section eleven of chapter ninetj'^- 
one of the General Laws, ..." 

The language contained in the title of the chapter and in section 1 makes 
it clear that the funds available thereunder are for capital improvements. 
The word "maintenance" as it appears in section 2 must be interpreted 
in the light of the whole enactment. "Maintenance" as used herein 
cannot be construed as referring to the ordinary and necessary recurring 
repairs that must be made to the pier but refers instead to maintenance 
problems involving capital outlays. » 



P.D. 12. 27 

In summary, it is my opinion that the repairs contemplated at the 
State Pier in New Bedford may not be charged to Capital Outlay Funds 
authorized by St. 1952, c. 604, Item 7622-01. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 

Retirement Benefits under St. 1952, c. 624 — Not Available to Veteran 
Retired under G. L. c. 32, §§ 56-60. 

Aug. 3, 1953. 
Mr. Carl A. Sheridan, Commissioner of Administratiori. 

Dear S r: — You have recently requested this department for an 
opinion under the circumstances set forth. You ask three questions as 
follows : 

"1. Does St. 1952, c. 624, § 2, apply to veterans? 

"2. Can the physician's statement be considered sufficient proof that 
the veteran was incapacitated in line of duty? 

"3. What proof should be required that disability of a veteran was 
caused by accident or hazard undergone while in the performance of his 
duties?" 

I interpret your first question to relate to veterans retiring under sec- 
tions 56 to 60 of chapter 32 of the General Laws, and as interpreted its 
answer is in the negative, in my opinion. Since cjuestions 2 and 3 are 
predicated upon an affirmative answer to 1, nothing further need be said 
about them. 

The employee you refer to was retired in 1940 under the provisions of 
sections 56 to 60, inclusive, of chapter 32 of the General Laws, providing 
for noncontributory pensions for certain veterans under stated circum- 
stances. 

You will observe that the said sections dealing with veterans' pensions 
are all conditioned upon designated years of creditable service. Section 56 
does not become operative, as you will see, until the veteran "has been 
in the said service at least ten years." Section 57 requires as a prerequi- 
site to the veteran's pension "a total period of ten years in the aggregate." 
The veteran's benefits under section 58 are conditioned upon service "for 
a total period of thirty years in the aggregate." You wuU have noted, 
therefore, that the veteran's benefits under the sections I have referred 
to are all conditioned upon specified years of creditable service. Section 
2 of chapter 624 of the Acts of 1952, upon which the veteran relies in the 
matter you refer to, should be read carefully. The benefits provided for 
in section 2 are not payable to all retired employees, but only, as stated 
in the title of the act, "to certain former -public employees.'^ The benefits 
under section 2 are not payable to retired employees receiving retirement 
allowances for superannuation, nor to retired employees who are receiving 
ordinary disability (non-service connected) retirement allowances, but 
only to retired employees described in section 2 who are receiving benefits 
"for disability caused by accident or hazard undergone while in the per- 
formance of his duties, regardless of years of creditable service." You under- 



28 P.D. 12. 

stand, of course, that accidental disability (service connected) retirement 
benefits under section 7 of chapter 32 are payable regardless of years of 
creditable service. In my opinion, it is to such and similar allowances 
that section 2 applies. You will note also that the same distinction appears 
in subsection (a) of section 85E of chapter 32, relative to certain non- 
contributory pensions to employees of certain police and fire departments. 
Since the General Cdurt in its wisdom has limited the benefits of section 
2 to retired employees for accidental disability "regardless of years of 
creditable service," it is clear to me that those benefits do not accrue to 
veterans receiving pensions under the provisions of sections 56 to 60, in- 
clusive, all of which are conditioned upon years of creditable service. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Prisoner — Date of Eligibility for Parole of Prisoner Serving Concurrent 

Sentences. 

Aug. 6, 1953. 

Reuben L. Lurie, Comynissioner of Correction. 

Dear Sir : — You have recently asked this department for an opinion 
as to the date of eligibility for parole of a prisoner jiow serving the follow- 
ing sentences in the state prison: 

5-12-52 Middlesex Sup. 2>^-3 yrs. Larc. in bldg. 

8- 6-52 Suffolk " 3-4 " Cone. Forg. & Uttering 

It u (I "^—A " " " " " 

II It i( o_j_ a " II << It 

It tt tt ^—4 " " " " " 

It tt It 3—4 " " *' " " 

You call attention to G. L. c. 127, § 133, which provides as follows: 

"Parole permits may be granted by the parole board to prisoners subject 
to its jurisdiction at such time as the board in each case may determine; 
provided, that no prisoner held under sentence to the state prison shall 
receive a parole permit until he shall have served two thirds of his mini- 
mum sentence, or, if he has two or more sentences to he served otherwise than 
concurrently, two thirds of the aggregate of the minimum terms of such sev- 
eral sentences." (Italics added.) 

In view of the express condition therein contained, the underlined clause 
of this statute should be completely disregarded except in cases where the 
prisoner is serving two or more sentences "otherwise than concurrently." 
It is my opinion that the reference to sentences "otherwise than concur- 
rently" is to so-called "from and after" sentences. Since, in the example 
given, no "from and after" sentence was imposed, the answer to your 
question must be drawn from the provisions of said section 133 exclusive of 
said underlined clause. 

The prisoner to whom you refer, under the provisions of said section 133 
which are now presently pertinent, may not receive a parole permit 
"until he shall have served two thirds of his minimum sentence." Since 
he is now serving two sentences, and since, as we must read the statute as 



P.D. 12. 29 

though the underiined clause did not exist, there is no provision for aggre- 
gating them, it must be determined which of the two sentences should be 
used as the measure. Certainly one of them must be, since otherwise the 
prisoner's eligibility for parole could never be ascertained. 

Nothing in the statute would seem to justify any general rule, in cases 
such as this, that the sentence first in point of time should be the one to 
consider, any more than it should be read as requiring that the sentence 
last imposed should govern. Similarly, it is difficult to see how the statute 
can be interpreted as establishing any general rule that one sentence or 
another shall be used as a measure depending upon its length. 

The only practical solution to the problem appears to me to be to com- 
pute the eligibility date as to each of the sentences now being served, and 
to consider the prisoner as eligible for parole on the latest of the dates so 
established. This method of approach to the problem would not seem 
to be unfair to any prisoner, and would clearly satisfy the proviso of the 
statute, the sense of which appears to me to require that parole eligibility 
be deferred until the prisoner has served at least two thirds of that mini- 
mum sentence which would, if served in full, keep him longest in custody. 

It appears that the parole board has for many years adopted this method 
of computation as a matter of policy, and for this reason alone it would 
seem to be the course to follow, since that board has the discretionary 
power to grant or to withhold parole permits as it may determine. 

Very truly yours, 

George Fingold, Attorney General, 

By Daniel J. Finn, 

Assistant Attorney General. 



Motor Vehicles — Suspension of Registration for Non-Payment of Excise 

Tax on Motor Vehicles. 

Aug. 10, 1953. 

Mr. Rudolph F. King, Registrar of Motor Vehicles. 

Dear Sir : — You have asked this department whether, under the pro- 
visions of G. L. c. 60 A, § 2 A, as most recently amended by St. 1953, c. 339, 
you are "required to suspend . . . certificates of registration, and . . . 
prohibited from renewing or issuing any certificates of registration to 
... an owner: 

" (a) who furnishes evidence that his estate is in bankruptcy proceedings 
in the Federal Court; that said excise tax is included in his schedule of 
liabilities; and that he has not yet been discharged in bankruptcy; 

" (b) that said excise taxes were included in this schedule of liabihties 
and that he has been discharged in the bankruptcy proceedings." 

Said section 2A relates to the suspension of certificates of registration of 
motor vehicles owned by a person who has failed to pay an excise assessed 
under chapter 60A, and provides that such suspension shall be effected, 
and that there shall be no renewal or issuance of such certificates to such 
person, unless he files with you evidence "that the excise, and all interest 
thereon and costs relative thereto, have been paid or legally abated" (italics 
added). 



30 P.D. 12. 

I assume that your inquiry results from your belief that a discharge in 
bankrupty releases the bankrupt from his liability for such an excise, so 
that the same is, in a loose sense, "abated" thereby. This is not the law: 
a discharge in bankruptcy does not affect debts which "are due as a tax 
levied by the United States, or any State, county, district or munici- 
pality." 11 U. S. C. A. § 35. Accordingly, in each of the examples given 
in your letter, it is clear that the evidence referred to does not indicate 
that the excise has either been paid or "legally abated," and the answer 
to each of your questions is, therefore, in the affirmative. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Criminal Procedure — Effect of "Filing" a Criminal Case. 

Aug. 11, 1953. 

Mr. Albert B. Carter, Commissioner, Board of Probation. 

Dear Sir : — You have recently asked this department for an opinion 
relative to a "filing" of a criminal case. You ask: 
"When a case is 'filed' in this Commonwealth — 

"1. Is this sentence equivalent to a suspended sentence? 
"2. Does such a disposition make the individual liable to further court 
action for a period of time equal to the maximum authorized sentence? 
"3. Does such a disposition entail further court restraint?" 

The answer to question one, in my opinion, is in the negative. In the 
first place, it becomes necessary to analyze your phrase "suspended sen- 
tence." The suspension of sentence and the suspension of execution of 
sentence are two different things. Boston v. Santosuosso, 307 IMass. 302, 
331. The final judgment in a criminal case is the sentence. Boston v. 
Santosuosso, supra. Commonwealth v. Hersey, 324 Alass. 196, 205. For- 
cier V. Hopkins, 329 Mass. 668, 671. The suspension of execution of sen- 
tence ordinarily is for a fixed time and upon different terms and conditions. 
See sections 1 and lA of chapter 279 of the General Laws. An order of the 
court placing a case on file may be an entirely different disposition of a 
case, although it may be a part of a process reaching toward the same result. 
In some cases the disposition of a case by placing it on file is in substance 
intended to be a final disposition of the case. When, for instance, upon 
stipulation that the accused pay costs, it amounts in effect to an arrange- 
ment with the accused approved by the court that it shall be a final dis- 
position. Commonwealth v. Moloney, 145 Mass. 205, 210. VII Op. Atty. 
Gen. 513, 516. 

Generally speaking, however, it has long been a common practice in 
this Commonwealth, after a verdict of guilty in a criminal case when the 
court is satisfied that by reason of extenuating circumstances public jus- 
tice does not require an immediate sentence, to order with the consent of 
the defendant and upon such terms as the court in its discretion may im- 
pose that the indictment or complaint be laid on file. Such an order is 



P.D. 12. 31 

not equivalent to a final judgment by which the case is put out of court, 
but is a mere suspending of active proceedings in the case, and leaves it 
within the power of the court at any time, upon motion of either party 
to bring the case forward and pass any lawful order or judgment therein. 
Commonwealth v. Dowdican's Bail, 115 Mass. 33, 136. Marks v. Went- 
worth, 199 Mass. 44. Coiyimonwealth v. Carver, 224 Mass. 42, 43. 

A reading of the applicable statutes and the decisions leads me to the 
conclusion that, speaking accurately and technically apart from the prac- 
tical aspects of the situation, the filing of a case leaves it open to be re- 
moved from the files by the court at any time for appropriate court action, 
whatever appropriate action consists of in a given state of circumstances. 
If no sentence has been imposed, it may be imposed. If sentence has been 
imposed and executed, the court is without power to again impose punish- 
ment, in my opinion. 

In light of the foregoing, and subject to what I have already said, my 
answer to question one is in the negative. As modified by what I have 
already written, my answer to question two is in the affirmative. Subject 
to the above, my answer to your question three is also in the affirmative. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



Compensation to State Employee — Overtime Work on Holiday. 

Aug. 31, 1953. 
Hon. Carl A. Sheridan, Commissioner of Administration. 

Dear Sir: — You request an opinion from this office on the following 
question: 

An employee worked a scheduled work week from ^Monday to Friday, 
inclusive, and in addition, was required to perform a full tour of duty on 
Saturday, July 4, 1953. Is the employee entitled to an additional day ofT 
or a day's pay in lieu thereof under G. L. c. 30, § 24A, in addition to a day 
of overtime pay? 

You call the attention of the Attorney General to four opinions pre- 
viously received by your office from this department relative to "certain 
aspects of said section 24A," dated March 10, 1950, August 11, 1950, 
June 19, 1951 and January 16, 1952. As you point out, however, none of 
those opinions specifically answered the question presently raised. 

The employee to whom you refer has already been "compensated for 
overtime work" for his services on the Saturday in question, under the 
provisions of G. L. c. 149, § 30A, as most recently amended by St. 1952, 
c. 626. That statute provides that employees subject thereto shall receive 
such compensation for "all service in excess of . . . forty hours in any 
one week," regardless of when such service is performed, so that he was 
clearly entitled thereto. 

Section 24A of chapter 30 of the General Laws specifically provides that 
any State employee required to work on certain holidays (including July 
fourth) "shall be given an additional day off ... or ... an additional 



32 P.D. 12. 

day's pay." This right accrues to such an employee regardless of the 
number of hours he may have been required to work during the week in 
which such holiday falls; the measure of the right is totally different from 
that of his right to overtime pay. In the case put by you, the employee 
has been required to work on a holiday, and has therefore been brought 
within the provisions of said section 24A. It is immaterial that he may 
also quaUfy for benefits created by another statute. 

Had the fourth of July fallen on Wednesday, and if the employee had 
been required to work on the holiday as well as overtime on Saturday, it 
is clear that he would have been entitled not only to his overtime compen- 
sation but also to the benefits provided for by section 2-4A. The result 
should not be different merely because the holiday actually fell on the 
overtime day. In each instance, he has worked overtime and has also 
worked on a holiday in a single week. 

Accordingly, I answer your question in the affirmative. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 

Department of Public Works — ■ Compensation for Services on Project Later 

Abandoned. 

Sept. 29, 1953. 

Mr. RoDOLPHE G. Bessette, Director, Division of Waterways, Department 

of Public Works. 

Dear Sir : — You have requested an opinion as to the propriety of 
making payment under a certain contract of an amount equal to five per 
cent of the estimated cost of a project, for services preparing design, plans 
and specifications when the project was subsequently abandoned by the 
Commissioners because the bids received thereon were excessive. 

There is no doubt that the language of Item 1 of Art. XII of the con- 
tract contemplates ultimate completion of the project for which the plans 
were prepared and does not expressly provide for compensation in the 
event of abandonment of the project after bids were received, as happened 
in this case. 

However, it should be noted that Art. VIII contains the following 
provision : 

". . . or, if it shall become necessary for the Department, for reasons 
beyond its control, to abandon or involuntarily to defer the work under 
this contract, or any part thereof, before completion of the services to be 
rendered hereunder, the Consultant shall be entitled to just and equitable 
compensation for any uncompensated work satisfactorily performed prior 
to such time." 

In addition to the design services specified in Art. II, the consultants 
also contract to perform supervisory services under Art. IX for which 
compensation is to be paid at two per cent under Item 4 of Art. XII. 
Since the project was abandoned after completion of the plans, but before 
performance of the supervisory services contemplated by the contract, for 
reasons beyond the control of the department, it would appear that the 



P.D. 12. 33 

provisions of Art. VIII would become applicable, and that the consultant 
would be entitled to "just and equitable compensation for any uncompen- 
sated work satisfactorily performed." 

Whether the proposed payment in an amount equal to five per cent of 
the estimated cost of the project is "just and equitable compensation" is 
a question of fact beyond the province of this office. Should you certify 
to the Comptroller that in the opinion of your office the proposed payment 
was "just and equitable" under all the circumstances, I am of the opinion 
that payment of that amount would then be warranted as a payment 
under the express provisions of said ^rt. VIII. 

As the proposed payment is made luider Art. VIII and not under Art. 
XII, the provisions of Art. XII relative to the time of payment are not 
applicable. No time for payment being specified in Art. VIII, payment 
within a reasonable time is presumed. 

Very truly yours, 

Geokoe Fingold, Attorney General. 



Eminent Domain — ■ Damages for Interference with Rights of Navigation — • 
.4 s Element of Damage when Land Taken. 

Sept. 30, 1953. 
Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — You have requested an opinion concerning the liability 
of the Commonwealth for damages caused by the construction of a fixed 
bridge over a navigable stream. You state that a lumber company is 
located upstream from the location of a proposed bridge across the Nepon- 
set River and that ships which customarily proceed upstream to the wharf 
of the lumber company will be unable to proceed beyond the bridge after 
it is constructed. The proposed bridge is to be constructed without a draw. 

In the foregoing circumstances the lumber company is not entitled by 
Massachusetts law to be compensated by the Commonwealth for damage 
occasioned by a bridge which cuts off its access to the sea. The injury to 
navigation is not an injury to a private property right of the lumber com- 
pany but is instead an injury to a public right for which a private individual 
may not recover damages. The case of Blackwell v. Old Colony R. Co., 
122 Mass. 1, cited by you, maintains this proposition and is still good law. 
See IV Op. Atty. Gen. 232. 

You refer also to the case of Butchers Slaughtering dc. Assoc, v. Boston, 
214 Mass. 254. In that case recovery was allowed to the owner of a wharf 
located on the Charles River who was cut off from access to the sea by 
construction of a bridge without a draw, but such recovery was based 
upon a special statutory enactment embodied in St. 1902, c. 464. 

Your attention is called to the fact that said statute was passed in order 
to comply with a condition imposed by the Federal government which 
required the Commonwealth to compensate the owners of wharf property 
located above the bridge. 

The rights of the Commonwealth to control navigable rivers are subject 
to the powers of the Federal government arising out of such matters as 
defense and interstate commerce. For this reason the appropriate Federal 
officials should be contacted concerning erection of the proposed bridge in 



34 P.D. 12. 

order to avoid possible admiralty claims in the Federal courts where pri- 
vate individuals may sue for interference with rights of navigation. See 
New York, N. H. A H. R. Co. v. Piscataqua Nav. Co., 108 Fed. 92. 

You ask, secondly, concerning liability of the Commonwealth to riparian 
owners from whom land is actually taken. It is assumed that you make 
reference to the Commonwealth's liability for interference with the right 
of navigation and the right of access to the river enjoyed by such riparian 
owners. In assessing the value of the land taken, it may be shown that 
the land had a pecuhar value because of its proximity to the navigable 
river. To this extent, the right of navigation and the right of access to 
the river may be an element of damage. Drury v. Midland R. Co., 127 
Mass. 571, 583. 

Where land of a riparian owner is not taken, the Commonwealth need 
not compensate the riparian owner either for cutting off his land from 
access to a navigable river {Home for Aged Women v. Commonwealth, 202 
Mass. 422, 428) or for depriving him of his right to navigate in the river 
(Blackwell v. Old Colony R. Co., 122 Mass. 1). 

\^ery truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 

State Highways — Obstruction — ■ Overhanging Canopies. 

Oct. 5, 1953. 
Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — You have requested an opinion concerning the authority 
of your department to issue permits for the erection of canopies which 
will overhang State highways. 

General Laws, c. 81, § 21, quoted in part in your letter, prohibits the 
placing of an "obstruction or structure" on a State highway without the 
written permit of the department. It is the opinion of this office that a 
canopy overhanging a State highway could constitute an "obstruction or 
structure" within the meaning of said section 21 and may be erected only 
if a permit is issued by the department. 

Very truly yours, 

George Fingold, Attorney General, 

By Harris A. Reynolds, 

Assistant Attorney General. 

Payroll Certification for Assistant Register of Probate. 

Nov. 16, 1953. 
Hon. C'arl a. Sheridan, Commissioner of Administration. 

Dear Sir: — In your recent letter to me you state that "a question 
has arisen regarding a certification of a payroll for the assistant registers 
of probate in the County of Essex . . . because of (a) . . . payroll de- 



P.D. 12. 35 

duction made by the register of probate which was in direct contradiction 
to the decision of the judges of the court." You inquire whether "the 
payroll for the assistant registers and clerks can be certified by the judges 
of the court or whether such certification can only be made by the register 
of probate?" 

Assistant registers of probate in Essex County are appointed, and can 
be removed, only by the judges of probate; they must give bonds for the 
faithful performance of their duties in sums to be fixed by the judges. 
G. L. c. 217, §§ 23, 24, 25A. While they are subject to the direction of the 
register in the matter of the performance of their duties (§ 27 of c. 217), 
I find nothing in the law giving the register control of any sort over the 
amount or the payment of their salaries, which are specifically set by 
section 35B of said chapter 217. Indeed, because section 24 expressly 
makes their tenure of office subject only to the pleasure of the judges who 
appoint them, it seems abundantly clear that their compensation is to be 
denied them only by the judges' action or failure to act. Cf. section 33 
of chapter 217, which relates to employees of the register, and section 45 
of chapter 30 of the General Laws, which provides for the classification of 
"clerical" assistants of the register. As to such personnel, the register 
has extensive control; as to the assistant registers, whose appointments 
and removals arc the business only of the judges, his control is far less 
extensive. 

The payroll including the names of assistant registers should be signed 
"by the person authorized to incur such obUgation." G. L. c. 7, § 13. 
Since the provisions of c. 217, § 24, are permissive, and the judges of pro- 
bate need not have appointed the assistant registers unless they saw fit to 
do so, they are the persons authorized to incur the expenditures repre- 
sented by the salaries of such assistants; the amount of those expenditures 
having been fixed definitively V)y c. 217, § 35B, the "approval" of the 
payment of such salaries would seem to be almost perfunctory, and in my 
opinion the register has no right or power to delay such payment over the 
objections of the judges. 

Accordingly, I advise you that the judges of probate may properly cer- 
tify the payroll for the assistant registers of probate in Essex County. 

Without further information as to the appointment and duties of the 
"clerks" mentioned in your question, I do not see that your inquiry as to 
them can be presently answered except as it has already been discussed in 
the foregoing. 

Very truly yours, 

George Finciold, Attorney General. 



llnwersiti/ nf Massachusetts — Teaching Assignments. 

Nov. 23, 1953. 
Mr. J. Pail Mathek, Prouost, University of Massachusetts. 

Dear Sir: — You have recently asked the following question: 

"Can the Universit}' or its Board of Trustees employ persons whose 
duties would consist of a combination of teaching and other activities such 



36 PD. 12. 

as research work or extension work on a 12 month's basis without violation 
of G. L. c. 29, § 31?" 

and the further question : 

"Can the University or its Trustees require members of the professional 
staff in research or extension to do part-time classroom teaching on the 
campus without thereby entitling them to a claim on a shorter or academic 
year?" 

Your letter does not contain any information indicating any tenure 
rights of your teachers except as provided by the "Terms of Employment" 
appearing on the back of your appointments. In view of the provision of 
section 9 of chapter 75 of the General Laws to the effect that "the trustees 
shall, on behalf of the commonwealth, manage and administer the univer- 
sity," I assume that none exist except so far as appear in your appoint- 
ments and the terms of employment above referred to. I notice also that 
by virtue of the provisions of section 10 of chapter 75 "the trustees shall 
make reasonable rules and by-laws consistent with law, with reasonable 
penalties, for the government of the university and for the regulation of 
their own body." 

The provision in section 31 of chapter 29 to which you refer and which, 
of course, forms part of any arrangement covered by section 31 is limited 
to "the annual salary of each teacher and each supervisor employed in 
any school or college within any department of the commonwealth, whose 
regular service is rendered from September first to June thirtieth ..." 
It does not interfere with nor control, in my opinion, the salary of any 
teacher or supervisor whose regular service is not limited to the period 
mentioned. If a person is employed whose duties include in part those of 
a teacher and in part otherwise, whose regular service in these capacities 
covers the entire year, the said statutory limitation contained in this sec- 
tion does not control. By the same token the person employed for the 
twelve-month period, whose activities include some teaching as well as 
other duties during that period, is not controlled by the portion of section 
31 above referred to. 

Without attempting to control the phraseology of your appointments, 
it should be made clear that all such appointments as are intended to cover 
a twelve-month period and include teaching as well as other duties should 
so state. 

Subject to the foregoing, in my opinion, the answers to your questions 
are both in the affirmative. 

I am writing on the assumption that the University in this situation will 
take no steps to infringe upon the rights of its employees under existing 
arrangements not acceptable to them but will apply only to future rela- 
tions mutually satisfactory. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



P.D. 12. 37 

Boston Arena Authority — • Tort Liability — • Liability Insurance. 

Dec. 2, 1953. 
Mr. Daniel McFadden, Boston Arena Authority. 

Dear Sir: — You have asked this department for an opinion as to 
several questions, which are quoted below. 

The answers to the questions you pose depend upon the construction of 
the provisions of chapter 669 of the Acts of 1953 and the status of the 
Boston Arena Authority created thereby. The act creates the Boston 
Arena Authority, which is described as "a public instrumentality"; and 
further states that "the exercise by the authority of the powers conferred 
by this act shall be deemed and held to be the performance of essential 
governmental functions and the authority shall not be liable for any injury, 
loss or damage suffered b}'' any person or property by reason of any ordi- 
nary or gross negligence of the authority or any of its officers, employees 
or agents." 

By virtue of the provisions of section 3 the Authority is empowered — 

" (c) To sue and be sued, and to plead and be impleaded, in its own 
name; 

" {d) To acquire, hold and dispose of real and personal property in the 
exercise of its powers and the performance of its duties under this act; 

" {e) To insure, maintain, repair and improve said arena and operate 
the same as an indoor hockey and skating rink . . . or, if there is no sub- 
stantial demand for such use of said arena or part thereof, to permit the 
use of said arena or part thereof for commercial purposes; 

" (Ji) To fix from time to time and charge and collect fees for admission 
to, or the use or occupancy of, said arena or any part thereof, . . . 

" (i) To make all contracts and agreements necessary or incidental to 
the performance of its duties and the execution of its powers under this 
act, . . . and to do all acts and things necessary or convenient to carry 
out the powers expressly granted in this act. 

"The authority shall fix such fees under clause {h) as in its judgment 
are best adapted to insure sufficient income to meet the expenses of the 
authority." 

Section 5 provides that expenses incurred in carrying out the provisions 
of this act shall not constitute a debt of the Commonwealth or of any 
political subdivision thereof, but shall be payable solely from funds pro- 
vided under authority of this act; and no expense, liability or obligation 
shall be incurred by the Authority under this act beyond the extent to 
which moneys shall have been provided under the provisions of this act. 
The Authority and its property are exempted from taxation. 

Under section 8 an appropriation is made from the general fund or rev- 
enue of the Commonwealth to provide for the expenses of acquiring the 
Arena and for a capital fund to facilitate the insurance, maintenance and 
operation of the same, in the sum of $350,000. The act further provides 
that any surplus shall be distributed among the cities and towns consti- 
tuting the INIetropolitan Parks District. 

Your first question is as follows: 



38 P.D. 12. 

"In view of section 2, relating to ordinary or gross negligence, are we 
authorized to provide public liability if it is the opinion of the Authority 
that this insurance would provide not only adequate protection, but also 
would allow the attorneys for our insurance firm to defend against any and 
all suits of this kind in court?" 

In my opinion, the answer to this question is in the affirmative. While 
there might be serious doubts as to the constitutionality of a statute at- 
tempting to exempt a commercial corporation, association or individual 
from liability for its torts (see Opinion of the Justices, 211 Mass. 618), I 
am not inclined to the view that the same rule would be apphed to a non- 
profit public body created by the General Court for the benefit of the 
general public. 

It has long been established in this Commonwealth that governmental 
units, such as municipalities, are not responsible for torts arising out of the 
performance by them of public functions for the public benefit and from 
which no profit is derived. Hill v. Boston, 122 Mass. 344. Beakey v. 
Billerica, 324 Mass. 290. 

While the status of the Arena Authority has not yet been adjudicated 
and may depend somewhat upon the extent of the revenue which it re- 
ceives, Baumgardner v. Boston, 304 Mass. 100, in view of the fact that any 
surplus revenue goes back to the general public, it is my opinion that the 
provisions of section 2 exempting the Authority from liability for its torts 
are not unconstitutional. 

It will be noted, however, that the exculpatory clause protects the 
Authority alone, no one else. The officers, employees and agents of the 
Authority will be liable for their torts, nevertheless. There is no provi- 
sion exempting them. However, your Authority should make very cer- 
tain that your public liability policies should protect and indemnify not 
only the Authority itself but its officers, agents and employees. 

Your next question reads: 

"Could the members of the Authority be held responsible for deliberate 
malfeasance on the part of any of its employees?" 

I answer this question in the affirmative. As I have stated, there is no 
provision exempting anybody but the Authority itself from liability. Its 
members, in my opinion, can be held responsible if they would otherwise 
be responsible for the misdoings of its employees. 

Your next question reads: 

"If we cannot protect ourselves with public liability insurance within 
the scope of the act, there is the problem of legal counsel in defense of suits 
in court. Could such legal assistance be rendered by your office in such 
cases?" 

In view of the foregoing, no reply to this question is necessary. 
Your last question reads: 

"Finally, is it your opinion that there would be danger of section 2 of 
the act pertaining to ordinary and gross negligence being declared uncon- 
stitutional?" 

It is my opinion that the exculpatory clause referred to in section 2 is 
not unconstitutional, but the possibility of a successful challenge cannot, 
of course, be denied. 



P.D. 12. 39 

Finally, of course, the Authority has no power to create liabilities which 
at any time exceed the funds available. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistcud Attorney General. 



Payroll Payment for Assistant Register of Probate. 

Dec. 7, 1953. 
Mr. Fred A. Mo.vcewicz, Comptroller. 

Dear Sir: — In your recent letter to me you refer to an opinion which, 
at the request of the Commissioner of Administration, I gave to him on 
November 16, 1953. That opinion was, in effect, that in the event of a 
disagreement between the judges of probate and the register of probate in 
Essex County as to the propriety of a payroll item with relation to one of 
the assistant registers, your office should recognize the "certification" of 
the judges, notwithstanding your usual practice of requiring all probate 
payrolls to be signed by the register. 

You now inquire : 

1. May payments for the salaries of assistant registers of probate in a 
particular county be warranted for payment only after approval by the 
judge of the probate court concerned? 

2. Does payment made from the appropriation for the salary of the 
register require the signature of the judge of the probate court concerned 
or the signature of the register? 

3. Is the approval of the judge of the probate court or the register of the 
probate court necessary for payments to be made from the appropriation 
for clerical assistance to the register "i* 

You call my attention, particularly, to the provisions of section 20 of 
chapter 29 of the General Laws, which are as follows: 

"No account or demand requiring the certificate of the comptroller or 
warrant of the governor shall be paid from an appropriation unless it has 
been authorized and approved by the head of the department, office, com- 
mission or institution for which it was contracted; ..." 

From your letter, it is apparent that you interpret the provisions of said 
section to require the signature of "the head of the department, office, 
commission or institution" upon accounts or demands to be certified by 
you. While the authorization and approval of such a person might best 
be so evidenced, section 20 does not in terms make the requirement which 
you read into it. 

The affidavit, upon probate court payrolls, of the "person authorized 
to incur such obligation" may be demanded by you under G. L. c. 7, § 13, 
but the statute which you cite does not, of itself, raise the questions which 
your letter poses. I take it that your practice has been to accept the sig- 
nature of the register upon all probate court payrolls as evidence that the 
authorization and approval thereof required by said chapter 29, section 
20, exists, and T see no reason why this practice should not be continued. 



40 P.D. 12. 

But it should be understood that the register's signature appears upon such 
payrolls solely as such evidence and not because he is "the head of the 
department, office, commission or institution" under section 20. If a 
probate court can be considered to be an "office" under said statute, as 
to which question I do not see that any present position need be taken, it 
seems clear that its head would be the judge rather than the register of 
probate, since the latter is, in large measures, subject to the direction, in 
the performance of his duties, of the former. G. L. c. 217, § 15. 

With reference to your questions, then, and in accordance, also, with 
my said opinion of November 16, 1953, I advise you as follows: 

Upon the assumption that chapter 29, section 20, has application to 
probate court payrolls, it would be proper for you, as long as the judges 
of probate and the register find themselves in accord as to all items thereon, 
to continue to assume that the signature or "certification" of the latter 
upon such payrolls is evidence that they have been authorized and ap- 
proved as required by said section. When a disagreement exists between 
the judge or judges and the register as to a payroll item concerning an 
assistant register, I refer you to my opinion of November 16, 1953 for 
your answer. I am not aware that any actual problem now exists which 
calls for any ruling from me as to the effect of a controversy between a 
judge and a register as to the propriety of a payroll item concerning any 
other probate employee. 

Very truly yours, 

George Fixgold, Attorney General. 



Department of Public Works — Highway Fund — Use of Bond Issue 
Proceeds for Maintenance Shop. 

Dec. 9, 1953. 
Hon. JoHiX A. VoLPE, Commissioner of Public Works. 

Dear Sir: — In your recent letter, you rer^uested my opinion as to 
whether the provisions of the 1952 Bond Issue Act, chapter 556, authorize 
the construction of a maintenance shop with funds provided under said 
act in connection with the maintenance and operation of the John F. 
Fitzgerald Expressway, or the Boston Central Artery, so called. 

This highwaj^, as set forth in your letter, is now being constructed with 
funds obtained under the 1952 Bond Issue Act and the two prior Bond 
Issue Acts. 

In the formulation of the opinion herein expressed the following legisla- 
tive and constitutional provisions were analyzed and reviewed: 

Chapter 556 of the Acts of 1952 entitled "An Act providing for an 
accelerated highway program," sometimes known as the Third Bond Issue 
Act. 

Section 4 of Mass. Const. Amend. LXII. 

Chapter 92A of the General Laws authorizing the establishment of the 
Massachusetts Public Building Commission. 

A careful examination of chapter 556 of the Acts of 1952 and the prior 
Bond Issue Acts discloses that the sections pertinent to the opinion sought 
by your letter are sections 1 and 9 of the 1952 act. Section 9 of chapter 
550 reads as follows: 



P.D. 12. 41 

"The cost of the work authorized in section one shall include all project 
payments, property damages, expenses for consultants and engineering 
services, including traffic studies, and for all legal and other technical and 
expert services, and incidental expenses in connection with the projects 
herein authorized. ..." 

Thus does section 9 refer to and incorporate therein the description of 
projects set forth in section 1. 

Section 1 lists the projects as follows: 

"... for the laying out, construction, reconstruction, resurfacing and 
relocation of highways, parkways, bridges, grade crossing eliminations and 
alterations of crossings ..." 

The language of section 1 defines the projects, and in so doing limits the 
incidental expenses authorized in section 9, since those incidental expenses 
must arise "in connection with the projects authorized" in section 1. A 
careful examination and analysis of sections 1 and 9 of chapter 556 lends 
no support to the contention that maintenance, repair and the construc- 
tion of maintenance and repair shops are incidental expenses in connection 
with the projects authorized in section 1. The absence of the words "main- 
tain" or "repair" in the legislation under discussion is a vital omission 
and renders illegal any expenditure of the funds obtained from the sale of 
bonds pursuant to this legislation for such purpose as the construction of 
maintenance and repair shops. Therefore, in line with well-established 
principles of statutory interpretation, the absence of the words "maintain" 
or "repair," the specific definition of authorized projects in section 1 and 
the limitation of incidental expenses by the language of section 9 of chap- 
ter 556 justify no other conclusion but that the language of chapter 556 
does not authorize the expenditure of funds provided under that chapter 
for construction of a maintenance shop to house equipment and supplies 
and to furnish working space for the maintenance and operation of the 
John F. Fitzgerald Expressway or Boston Central Artery. 

Further support for this conclusion is to be found in the constitutional 
prohibition that money borrowed by the Commonwealth shall not be ex- 
pended for any other purpose than that for which it was borrowed. This 
restriction is set forth in section 4 of Mass. Const. Amend. LXII as follows: 

"Borrowed money shall not be expended for any other purpose than 
that for which it was borrowed or for the reduction or discharge of the 
principal of the loan." 

Your attention is further directed to the various sections of chapter 92A. 
A review of this statute demonstrates that the project of constructing such 
a shop as that referred to in your letter is one which requires the approval 
of the Massachusetts Public Building Commission. 

In accord with the foregoing, T am of the opinion that the answer to 
your question as to whether chapter 556 authorizes the construction of 
the project referred to in your letter must be in the negative. 

Very truly yours, 

George Fingold, Attorney General. 



42 P.D. 12 



Public Contracts — Error in Borings — Reliance thereon by Contractor. 

Dec. 14, 1953. 

Hon. Charles W. Greenough, Commissioner, Metropolitan District 

Commission. 

Dear Sir: — You have written to this office asking whether the Metro- 
politan District Commission or the Cabot Construction Corporation is 
responsible for certain additional expenses to be incurred in conne'^tion 
with the construction of the Framingham Trunk Interceptor sewer under 
Contract No. 135. 

The pertinent facts appear to be as follows: The Cabot Construction 
Company has entered into a contract with the Commission for the con- 
struction of approximately 8,000 feet of sewer in Framingham. During 
the course of construction, the contractor has encountered a section of 
approximately 1,800 feet where the sewer must be tunnelled through sandy 
soil highly inundated with water, requiring compressed air operations at 
an increased cost of about $275,000. The total contract price without this 
additional item is about $1,000,000. 

The contractor asserts that it relied on test borings made at the site 
before award of the contract, which borings indicated that the tunnel 
would pass through rock at the area in question. From this information, 
the contractor concluded that the use of compressed air would not be 
necessary. The borings were made by a firm employed by the Common- 
wealth and were examined by the contractor before it submitted a bid on 
the contract. Subsequent borings made after the award of the contract 
indicate that the original borings were in error. Neither the Commission 
nor the contractor knew of the error at the time the contract was executed. 

The contract incorporates within it the terms of a document entitled 
"Information for Bidders" which contains the following express language: 

"Bidders are required to submit their proposals upon the following ex- 
press conditions, which shall apply to and become part of every bid re- 
ceived, viz.: 

" 'Bidders must satisfy themselves by personal examination of the loca- 
tion of the proposed work and by such other means as they may desire, 
as to actual conditions and requirements of the work, and the accuracy of 
the quantities assumed by the Engineer.' 

"AH information given on the drawings, or in the contract documents, 
relating to borings and materials encountered, groundwater, subsurface 
conditions, and existing pipes and other structures is from the best sources 
at present available to the Commission. All such information and the 
drawings of existing construction are furnished only for the information 
and convenience of bidders. 

"It is understood and agreed that the Commission does not warrant or 
guarantee that the materials, conditions, and pipes or other structures 
encoimtered during construction will be the same as those indicated by the 
boring samples or by the information given on the drawings. The bidder 
must satisfy himself regarding the character, quantitities, and conditions 
of the various materials and the work to be done. 

"It is further understood and agreed that the bidder or the Contractor 



P.D. 12. 43 

will not use any of the information made available to him, or obtained in 
any examination made by him, in any manner as a basis or ground of 
claim or demand of any nature against the Commission or the Engineer, 
arising from or by reason of any variance which may exist between the 
information offered and the actual materials or structures encountered 
during the construction work." 

Article XVII (page 30) of the contract states in part as follows: 

"The Contractor agrees that he has entered into this agreement upon 
his own examination of the location of the proposed work and the character 
of the work recjuired, and not upon any statements made or plans furnished 
by the Commission or any officer, employee or agent thereof." 

Subsequent to the receipt of your original letter, there have been several 
conferences concerning the foregoing problem which have brought out the 
additional fact that the contractor initially attempted to construct the 
tunnel through the sandy soil without using compressed air. The opera- 
tion caused an excessive loss of earth and material in the vicinity of the 
tunnelling, resulting in settlement of the ground above the tunnelling and 
damage to homes and buildings standing on such ground. 

As a result of these conferences, you have asked, first, whether the Com- 
mission has authority to issue a change order to cover the increased cost 
of compressed air operation and, second, whether the Commission may 
reduce the scope of the work so as to eliminate from the contract the 
1,800-foot section in question in accordance with Article XVII of the 
contract which provides as follows: 

"The Commission reserves the right to increase or decrease the amount 
of any class or portion of the work as may be deemed necessary or expedient 
by the Commission, and an increase or decrease in the quantity for any 
item shall not be regarded as a sufficient ground for an increase or decrease 
in the prices nor in the time allowed for the completion of the work except 
as provided in the contract." 

It is the opinion of this office that the Commission does not have au- 
thority under the contract to issue a change order to cover the increased 
cost of compressed air operations. Such change, increasing the obligation 
of the Commonwealth from $1,000,000 to $1,275,000, would be a substan- 
tial change requiring the award of a new contract under the terms of 
G. L. c. 29, § 8A, providing for competitive bidding on State contracts. 
See Morse v. Boston, 253 Mass. 247; Morse v. Boston, 260 Mass. 255. 

The express terms in the contract to the effect that the contractor relied 
upon its own examination of the site prevent the contractor, in the absence 
of bad faith, from avoiding the contract on the ground that he relied on 
inaccurate borings made available by the Commission. Kennedy v. Boston, 
286 Mass. 148; Cavanagh v. Tijscn, Weare & Marshall Co., 227 Mass. 437. 

The Commission, on the other hand, does have authority under Article 
XVII quoted above to decrease the quantity of work to be performed 
where it becomes "necessary or expedient." The facts indicate that tun- 
nelling in the sandy soil inundated with water causes an excessive loss of 
material with an ensuing risk to hfe and property caused by settlement or 
cave-in. 

Under these circumstances, the Commission would be justified in deter- 
mining that it was "necessary or expedient" to decrease the quantity of 



44 P.D. 12. 

work to be performed and could thereby eliminate from the present con- 
tract the 1,800 feet in question. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Civil Defense Act — Re-employment of Teachers. 

Dec. 18, 1953. 
Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir : — In your recent letter you ask two questions as follows : 

"(1) Is a retired public school teacher or superintendent who was not 
employed under the provisions of G. L. c. 31 eligible to be re-employed 
under the provisions of St. 1950, c. 639, § 9 and 

"(2) If such persons ^public school teachers and superintendents) are 
eligible to re-employment, must their re-employment be by the same school 
committee, board, etc., or are they eligible to re-employment by any other 
school committee or board in the Commonwealth?" 

In construing chapter 639 of the Acts of 1950 it must be borne in mind 
that its primary purpose is to provide flexibility in meeting a statewide 
emergency. The title to the act indicates as much when it is described 
as "An Act to provide for the safety of the Commonwealth during the 
existence of an emergency resulting from disaster or from hostile action." 
Section 9, which you ask me to construe, provides: 

"Notwithstanding the provisions of chapter thirty-one of the General 
Laws, or any other provision of law affecting civil service, and the rules 
made thereunder on and after the declaration of a state of emergency, the 
director of civil service, supported by a majority vote of the civil service 
commission may : — 

" (h) Shall approve in writing the temporary re-employment of any 
former officer or employee of the commonwealth or of any political sub- 
division thereof who has been retired under any retirement or pension law, 
or who has been separated from the public service by reason of super- 
annuation or disability without a retirement allowance or pension to any 
position or employment subject to chapter thirty-one of the General Laws. 
Any person so employed shall receive full compensation for such services 
less any retirement allowance or pension received by him. The written 
approval of the appointing officer, board or committee shall be required in 
the re-employment of such former officers or employees to any office or 
employment not subject to said chapter thirty-one. 

"Any appointment or transfer made under this section shall be effective 
only for the period during which this section is to be operative." 

Subdivision ih) of section 9 should, of course, be read and interpreted 
in the light of the over-all purpose of chapter 639. This is to provide for 
a marshaling of the manpower of the Commonwealth to cope with the 
overwhelming disaster. It should be unnecessary to deny that a portion 



P.D. 12. 45 

only of the available manpower should be made use of. Unlimited disaster 
should not be met with limited or partial resources. There seems to be no 
sensible reason why retired civil service employees should be utilized as 
distinguished from retired non-civil service employees. 

With this in mind it will be noted that under subdivision (h) "any" 
former officer or employee of the Commonwealth or of "amj" political 
subdivision thereof who has been retired may be re-employed in any posi- 
tion or employment subject to chapter 31 of the General Laws, under the 
conditions set forth in section 9, with the approval in writing of the Di- 
rector of Civil Service supported by a majority vote of the Civil Service 
Commission. The word "any" in this act should, in my opinion, be con- 
strued as meaning "each." 

The Legislature having provided for re-employment in civil service posi- 
tions, with the approval of the Director, in the last sentence of subdivision 
(h) turns it'-' attention to the re-employment of retired employees in non- 
civil service positions. Obviously, no reason exists why the Civil Service 
Commission or the Director should be brought into the subject of re- 
employment in non-civil service positions. Accordingly, the General 
Court provided that the re-employment in non-civil service positions 
should require the written approval of the appointing officer, board or 
committee. 

Such an interpretation of subdivision (/i) is in conformity with, and 
would tend to effectuate, the purpose of chapter 039. It can hardly be 
said that the General Court intended in section 9 to deal with an emer- 
gency piecemeal. Every reason which would justify the re-employment of 
former civil service employees would apply to the re- employment of former 
non-civil service personnel. It does not seem reasonable to assume that 
the General Court intended that a portion only of the public service should 
be alerted and made available in the emergency which the legislation at- 
tempts to deal with. 

Accordingly, I answer your question No. 1 in the affirmative. This, I 
think, deals with the specific situation referred to in your communication. 

As to your question No. 2, I am constrained to advise 3^ou that the long- 
continued practice of this department and the precedents set by the pre- 
vious Attorneys General indicate what is undoubtedly the correct rule of 
law, that it is not within the province of the Attorney General to deter- 
mine hypothetical questions which ma}'^ arise, as distinguished from ques- 
tions relative to actual states of fact set before the Attorney General, 
upon which states of fact public officials are presently required to act; 
nor is it the duty of the Attornej^ General to attempt to make general 
interpretations of statutes or of the duties of the officials thereunder ex- 
cept as such interpretations may be necessary to guide them in the per- 
formance of some immediate duty. See I Op. Atty. Gen. 275; II ibid. 100; 
III ibid. 425. 

The members of this department are always at j'our service for consulta- 
tion and assistance with reference to your work, but for the foregoing 
reasons I may not properly answer your question No. 2. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 



46 P.D. 12. 

State Personnel Appeal Board — Appeal on Salary Question. 

Jan. 6, 1954. 

Mr. George W. Marquis, Permanent Chairman oj Personnel Appeal Board. 
Dear Sir: — In your recent letter you ask the following questions: 

1. Assuming that an employee has exhausted all his other remedies, has 
he any appeal to the Personnel Appeal Board set up under G. L. c. 30, 
§§ 53 to 57, inclusive, on matters relating to salary? 

2. If the Permanent Chairman of the Personnel Appeal Board has re- 
fused to entertain such an appeal on grounds of lack of jurisdiction, can 
such employee insist that said chairman convene the entire board to pass 
upon the board's jurisdiction? 

Section 53 of chapter 30 of the General Laws provides for the "disposi- 
tion of any grievance of any employee of the commonwealth . . . relating 
to classification, hours of employment, vacations, sick leave or other forms 
of leaves of absence and overtime, by appeal to a personnel appeal 
board . . . ." No provision is made thereby for any such appeal for the 
purpose of reviewing the establishment of a salary fixed under the provi- 
sions of section 46 of said chapter, and therefore, in my opinion, your first 
question must be answered in the negative. 

Section 56 of said chapter 30 provides that if "the permanent chairman 
is of opinion that an appeal shall not be considered by such an appeal 
board . . . for any . . . reason, he shall state his opinion with the rea- 
sons therefor to the petitioner, and, if the petitioner still insists on his 
appeal ... (a personnel appeal) board shall be constituted . . . and the 
question of whether such appeal should be considered shall be submitted 
to said board and it shall render a written decision on said question." 
Your second question is definitively answered by this provision. Of 
course, no decision by such a board could have the effect of enlarging its 
own statutory jurisdiction. 

Very truly yours, 

George Fingold, Attorney General, 

By Arnold H. Salisbury, 

Assistant Attorney General. 



Workmen'' s Compensation — Waiver by Veteran — Non-Service Connected 

Disability. 

Jan. 20, 1954. 

Mr. Edward P. Doyle, Secretary, Division of Industrial Accidents. 

Dear Sir : — You have recently asked this department for an opinion 
regarding a waiver by a veteran of certain rights under G. L. c. 152. 

You state that the employee in question applied to the Division of In- 
dustrial Accidents, under G. L. c. 152, § 46, for approval of her waiver of 
certain rights to compensation. Since she is a disabled veteran you dis- 



P.D. 12. 47 

approved her application for a waiver. It appears from your letter that 
her service connected disability is thrombophlebitis of the left leg, which 
gives her a rating of twenty per cent disability, but that she is also suffer- 
ing from arachnoiditis, and she desires to give a waiver as to this latter 
condition, which is not service connected. 
You ask two questions as follows: 

(1) Does G. L. c. 152, § 46, as amended by St. 1945, c. 623, involve only 
an application for a waiver on account of a service connected disability 
for which the applicant is certified by the Veterans Administration? 

(2) Do3S the exception referred to in this statute apply to an applica- 
tion by any veteran certi.ied by the Veterans Administration as disabled, 
irrespective of whether his condition is service connected or non-service 
connected? 

The provision in G. L c. 152, § 46, forbidding a waiver by an employee 
of his rights to workmen's compensation, with an addition made in 1927 
that an employee could agree to such a waiver if the waiver were approved 
by the Division of Industrial Accidents, was again amended by St. 1945, 
c. 623, which provided that "a person who is a war veteran and disabled as 
a result of his military or naval service and has been certified as such by 
the United States Veterans Administration" could not make such a waiver 
of future rights nor have such a waiver approved by your division. 

This exception, added in 1945, is applicable to persons who fulfill all of 
the several requirements of this added provision. In the present case, if 
the employee technically comes within all of the descriptions and condi- 
tions of this 1945 amendment, your division would have no right to approve 
any waiver by her. Furthermore, this exception is not conditioned as to 
whether the waiver of future compensation relates to a "peculiar suscepti- 
bihty to injury" which exists because of a previous injury received in mil- 
itary service or whether such "susceptibility" exists because of a non- 
service connected ailment. Your division has no right to read such a con- 
dition into this legislative act. 

The 1945 amendment was included in a chapter which was designed "to 
encourage the rehabilitation and employment of injured war veterans." 
This particular amendment, very clearly, was designed to prevent a vet- 
eran from waiving compensation rights to which he might become entitled. 
It was this protection to veterans which the Legislature had in mind. Y^ou 
suggest that the inability of your division to approve a waiver for a vet- 
eran who comes within this amendment, so far as the waiver relates to 
non-service connected conditions, may be harmful to veterans rather than 
beneficial to veterans. It must be presumed that the Legislature consid- 
ered all of these matters and intentionally adopted the method of protec- 
tion which is specifically set forth in the 194:5 amendment. 

For the above reasons your first question must be answered in the neg- 
ative, and your second question, so far as it relates to a veteran who is 
technically within the description of this amendment, must be answered 
in the affirmative. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



48 P.D. 12. 



Metrcpolitan State Hospital — Authority to Use Facsimile Signature — 
Indemnity Agreement for Misuse of Such Signature. 

Jan. 27, 1954. 

Mr. Claud J. N. Weber, Chairman, Board of Trustees, Metropolitan State 

Hospital. 

Dear Sir: — In your recent letter you inquire as to the use of a fac- 
simile signature by the treasurer of the Metropolitan State Hospital, and 
a requested vote of the board of trustees authorizing such signature. Such 
a signature would be valid. A facsimile signature, if authorized, is as 
much a binding and a legal signature as any other kind of a signature. 
There is no doubt as to the legality of such a facsimile signature. The 
matter has been covered in decisions by our courts and in previous deci- 
sions by the Attorney General. 

You also inquire as to the legal right of your board of trustees to bind 
the Commonwealth by an indemnity agreement against misuse of this 
facsimile signature. You refer to the form of agreement submitted to you 
under which the Metropolitan State Hospital would indemnify and hold 
harmless the Harvard Trust Company against loss of any kind "arising 
out of the misuse or unlawful or unauthorized use by any person of such 
facsimile signature." I do not believe that your board has authority to 
make such an indemnity agreement. Certainly you have no specific au- 
thority under any statute or regulation. I do not see how such authority 
can be implied. All officers and agents of the Commonwealth have re- 
stricted authority, not general authority. It may be that the Harvard 
Trust Company would not consent to your use of a facsimile signature 
without this indemnity, but that situation would not, in my opinion, give 
you any implied authority to sign this indemnity contract. It is conceiv- 
able that such an agreement could result in substantial harm to the Metro- 
politan State Hospital or to the Commonwealth. Under the circum- 
stances, it is my opinion that your board has no authority to sign the 
indemnity agreement set forth in the copy attached to your letter. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Cotnmercial Use Shellfish Permit — Regulation Limiting Permit to Local 
Inhabitants — Poicer of Director of Division of Marine Fisheries. 

Feb. 19, 1954. 

Hon. Arthur T, Lyman, Commissioner of Natural Resources. 

Dear Sir: — You have recently asked this department for an opinion 
regarding the matter of approval of an ordinance of the city of Boston 
relating to "Commercial Use Shellfish Permits." I note that your inquiry 
is made in connection with the last paragraph of G. L. c. 130, § 52; and 



P.D. 12. 49 

I understand from our recent conference that the ordinance in question 
relates to "areas declared ... to be contaminated." This answer is 
limited to such a situation. 

Your first question is as follows: 

"What is the scope of the authority of the Director of the Division of 
Marine Fisheries under the last paragraph of section 52 of G. L. c. 130, as 
amended by St. 1941, c. 598, in relation to approval or disapproval of 
regulations?" 

The authority of the Director under the last paragraph of G. L. c. 130, 
§ 52, as amended, is restricted to instances in which the officers of a city 
or town seek to exercise authority under this section 52 "in areas declared 
. . . to be contaminated." Under said circumstances the Director has the 
right and duty to approve or to refuse to approve such exercise of authority 
by such officers. This paragraph relates solely to contaminated areas. 
The power given to the Director is not limited by express provisions con- 
tained in the statute itself. However, this authority must be exercised in 
a reasonable way, and in a manner which will carry out the purposes of 
the Legislature in setting up the Department of Natural Resources and 
the Division of Marine Fisheries and in enacting this chapter and section 
and amendments thereto. Consideration must be given to the provisions 
of St. 1953, c. 631, which set forth the most recent legislative purposes in 
this field. 

In approving or refusing to approve regulations adopted by local au- 
thorities in areas declared to be contaminated consideration should also 
be given, among other matters, to the following items: 

1. The purpose of the Legislature that precautions should be taken 
against the use of shellfish from a contaminated area which may be "unfit 
for food and dangerous to public health." (G. L. c. 130, § 74.) 

2. The purpose of the Legislature to give control of shellfisheries to the 
local authorities. (G. L. c. 130, title to sees. 52-56.) 

3. Is the ordinance within the scope of the statutory authorizations, 
and not contrary to any specific statutes? (For an example of matters of 
this kind see Attorney General's Report, 1944-45, pp. 43-46.) 

4. Furthermore, considerations such as are mentioned above should be 
weighed against the background of the purpose of the Legislature to pro- 
tect shellfish as a food for private consumption and as a valuable economic 
resource of the Commonwealth {Covmwnicealth v. J^ragg, 328 Mass. 327, 
331); and the fact that the department has been set up for the "protec- 
tion, conservation, control, use, increase and development" of natural 
resources (G. L. c. 21, § 1, as amended by St. 1953, c. 631); and that the 
division has been set up to further the "biological development of marine 
fish and fisheries" {id., § 5). 

Your first question is so broad that no inclusive answer can be given. 
I have mentioned some considerations which should be kept in mind in 
approving or in refusing to approve an ordinance presented to you. But 
this general answer cannot be applied to any specific set of facts which 
may be presented to you without further study and consideration on your 
part. 

Your second question is as follows : 

"Would the Director of the Division of Marine Fisheries be justified in 
approving a local regulation concerning commercial use shellfish permits 



50 P.D. 12. 

which expressly provide in substance that such a permit shall not be issued 
to any person not an inhabitant of the city or town for at least one year 
next preceding making application?" 

Justification for approval of such a local regulation would be conditioned 
on many matters not included in this question. See answer above to your 
first question. However, refusal to approve such a regulation solely on 
the ground that "such a permit shall not be issued to any person not an 
inhabitant of the city or town for at least one year next preceding making 
application" would not be justified. Such a restriction as to commercial 
shellfish permits, considered by itself, is neither unreasonable nor uncon- 
stitutional. In Commonwealth v. Hilton, 174 Mass. 29, 32, under an earlier 
version of the present section 52, a restriction of permits to residents of 
the town of Salisbury was held not to be "unconstitutional or otherwise 
invalid." Nor does the specific requirement that an inhabitant must be 
such "for at least one year next preceding making application", justify 
refusal to approve. Such a matter would be a consideration within the 
control of the local authorities. There are many precedents for such a 
delay in granting privileges to residents. For two examples, see sections 
38 and 57 of this same chapter 130. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Department of Public Works — Highway Funds — Bond Issue Proceeds — 
Use of for Parking Facilities. 

March 3, 1954. 
Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — Your letter of December 9th asks whether your depart- 
ment may spend highway or bond issue funds to provide parking facilities 
in the downtown area of Provincetown in order to accommodate the in- 
creased traffic anticipated on completion of the Mid-Cape Highway. 

On December 9th, the same day on which your letter is dated, the At- 
torney General forwarded to you an opinion stating that your department 
did not have authority to use bond issue funds for the construction of a 
highway maintenance shop. It is the opinion of this office that the prin- 
ciples involved in that opinion are controlling in the present case. For 
the reasons there stated, bond issue funds may not be used to provide 
such parking spaces. 

It is our conclusion also that the highway fund may not be used to con- 
struct ofT-street parking facilities of the kind described. 

General Laws, c. 90, § 34 lists the purposes for which the fund may be 
used. The pertinent provisions of that section are as follows: 

" (2) The balance then remaining shall be used — 

" (a) For expenditure, under the direction of said department, for main- 
taining, repairing, improving and constructing town and county highways 
together with any money which any town or county may appropriate for 



P.D. 12. 51 

said purpose to be used on the same highways. The said ways shall re- 
main town or county ways. In this subdivision the word 'town' shall 
include city; 

" (6) For expenditure, under the direction of said department, for main- 
taining, repairing and improving state highways and bridges; 

" (c) For expenditure, under the direction of said department, in addi- 
tion to federal aid payments received under section thirty of chapter 
eighty-one, for construction of state highways; 

" (d) For expenditure, under the direction of said department, for engi- 
neering services and expenses, for care, repair, storage, replacement and 
purchase of road building machinery and tools, for snow removal, for the 
erection and maintenance of direction signs and warning signs and for the 
care of shrubs and trees on state highways, and for expenses incidental to 
the foregoing or incidental to the purposes specified in subdivisions (a), (6) 
or (c) of this clause;" 

The foregoing enactment by the General Court, ^vith the limitations 
thereon, has been passed in the light of Mass. Const. Amend. LXXVIII, 
which limits the purposes for which such revenues may be expended. 

Construction of off-street parking areas appears to involve facilities 
which are in addition to, rather than a part of, a highway. An expenditure 
for such parking areas, therefore, w^ould not appear to be justified by the 
language of subdivisions (a), (b) or (c) as "maintaining, repairing, im- 
proving or constructing" highways. Likewise such an expenditure would 
not be authorized by subdivision (d) as "incidental to the purposes speci- 
fied in subdivisions (a), (b) or (c) . . ." 

In conclusion, it is our opinion that neither highway nor bond issue 
funds may be spent for construction of the proposed parking areas. 

Very truly yours, 

George Fingold, Attwney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



Eminent Domain — Damages — Tax Apportionment on Land Taken. 

March 11, 1954. 
Mr. H, Gordon Gray, Acting Commissioner of Public Works. 

Dear Sir : — You have recently asked this department for an opinion 
interpreting the effect of chapter 634 of the Acts of 1953 entitled "An Act 
relative to the apportionment of real estate taxes on land taken by emi- 
nent domain." 

The act, approved July 2, 1953, reads as follows: 

''Section 1. Section 12 of chapter 79 of the General Laws, as appearing 
in the Tercentenary Edition, is hereby amended by adding at the end the 
following sentence: — Whenever the title or interest taken is such that 
the property will be exempt from taxation so long as it is held and used 
for the purposes for which it is taken, the damages for the taking shall 
include an amount separately determined and stated which shall be esti- 
mated to be equal to that portion of the tax assessed upon the property 
in the year it is taken which, if the tax were apportioned pro rata accord- 



52 P.D. 12, 

ing to the number of days in such year, would be allocable to the days 
ensuing after the taking. 

"Section 2. This act shall apply to all cases coming within its terms 
where damages are fixed after the effective date of this act notwithstand- 
ing that the taking may have been made prior to said date." 

Section 12 of chapter 79 of the General Laws relates to "Measure of 
Damages" for property taken under this chapter. 

It was obviously the Legislature's intention to add a new element of 
damage to be taken into consideration in the disposition of land damage 
claims arising under this chapter. "That portion of the tax . . . appor- 
tioned pro rata . . . allocable to the days ensuing" in the year of the 
taking, is to be separately determined and stated. 

Your specific questions as to the procedure which should be followed 
in carrying out the provisions of this act and my answers thereto are as 
follows : 

1. In cases of partial takings, is the tax to he figured solely on the land 
which is taken and the structures which are located on the part taken? 

In my opinion, the specific language of the enactment requires an affirma- 
tive ansAver to this question. 

The act applies to property exempt from taxation so long as it is held 
and used for the purposes for which it is taken. After a taking, the legal 
title to the property taken is in the Commonwealth, and is exempted from 
taxation. (See G. L. c. 59, § 5.) The remaining property is not so ex- 
empted and does not come within the provisions of the act. See Lancy v. 
Boston, 18G Mass. 128, 132. 

2. Are the taxes to he apportioned on all takings in which the Board of 
Commissioners accepted offers of settlement since Octoher 1, 1953? 

Section 39 of chapter 79 provides in part that "the body poUtic . . . 
liable for such damages may after the right to such damages has become 
vested effect such settlement of the damages with the person entitled thereto 
as it may deem to be for its best interests," and provision is made enabhng 
the "body politic . . . after the right to such damages has become 
vested'- to "offer in writing to pay . . . the amount which it is willing to 
pay in settlement thereof, with interest thereon, together with taxable 
costs if a petition for the assessment of such damages is pending. . . . 
Acceptance thereof may be either in full satisfaction of all damages so 
sustained, or as a payment pro tanto without prejudice to any right to 
have the remainder thereof assessed by the appropriate tribunal." 

Section 3, chapter 79, states: 

"... the right to damages shall not vest until such way, drain or ditch 
has been entered upon or possession thereof has been taken . . . and if 
such entry is not made or possession taken within two j^ears of the date 
of the order, the taking shall be void." 

Section 12 of chapter 79, which chapter 634 of the Acts of 1953 amends, 
relates to "Measure of Damages." And by that amendment tax alloca- 
tion or apportionment is made a new element of damage to be "separately 
determined and stated." 

The act is applicable to all takings under chapter 79 though the taking 
was made prior to the effective date of chapter 634. The taxes to be 



P.D. 12. 53 

allocated are to be apportioned from the date the order of taking is re- 
corded not the date of entry. 

I presume that all offers made by the Board of Commissioners acting 
under the authority of section 39, chapter 79, contemplated every rightful 
element of damage and that the same was true as to offers to settle made 
by landowners and accepted by the Board of Commissioners. 

The offers, after acceptance, express the willingness on the part of one 
to pay and the other to accept, in settlement of all damages, the amount 
agreed upon. 

The sense of your inquiry, as I understand it, is whether you are to add 
the amount of taxes apportioned to offers of settlement accepted since 
October 1, 1953, and already paid or in the process of payment. 

When the Legislature gave to your department power to take land by 
eminent domain "under chapter seventy-nine" it intended to give to the 
department full and complete power to carry the necessary proceedings 
through to a Jinal terynination, with all the incidents and alternatives set 
forth in chapter 79. Willar v. Commonwealth, 297 Mass. 527, 529. 

A payment of an offer duly made and accepted under section 39, chap- 
ter 79, is a binding termination of the proceedings. 

There ought not to be any review of cases so disposed of before October 
1, 1953. It is important, however, for the department to separately deter- 
mine and state the amount of the taxes apportioned within the meaning 
of chapter 634 in all offers of settlement made under section 39. 

Therefore, as to actions terminated, the answer must be in the negative, 
and as to pending offers of settlement the same should be reviewed so as 
to contain a determination and statement of the amount included in ac- 
cordance with chapter 634. 

3. Does the act include 'payment of taxes for land takings to furnish material 
for the construction of public ways; land takings for providing abutting serv- 
ice facilities for gas stations, etc., and land takings for maintenance sites? 

The act applies to all takings made under chapter 79 of the General 
Laws and the answer so qualified is in the affirmative. 

4. Does the act apply in easement takings in behalf of owners whose rights 
of access have been taken? 

I answer this question in the affirmative. 

The statute applies whenever the title or interest taken is such that the 
property will })e exempt from taxation so long as it is held and used for 
the purposes for which it was taken. 

Though not specifically exempted by statute (c. 59, § 5), property de- 
voted to the public use is not taxed because it is believed by the courts 
that the Legislature did not intend to subject it to taxation. 

When the easement taken is substantially exclusive and leaves the 
owner of the fee no rights of any real value, the land itself is exempt from 
taxation. Lancy v. Boston, 186 Mass. 128. Nichols, Taxation in Massa- 
chusetts, 3rd ed., p. 260. Cf., Hunt v. Boston, 183 Mass. 303. 

5. Is the apportionment of taxes to be paid in all cases where a jury verdict 
has been rendered and the date of judgment is subsequent to October 1, 1953? 

You are to assume that every element of damage, including the tax 
apportionment, was duly presented during the trial of the case. The prac- 
tice in dealing \Wth this phase of damages may vary considerably. The 



54 P.D. 12. 

burden of proof still remains with the petitioner. Tax apportionment is 
solely another element of damage. The jury's verdict is to be presumed 
to include all damages to which the petitioner is entitled even though in a 
given case the tax allocation is not separately stated. A negative answer 
to the question is required. 

Very truly yours, 

George Fingold, Attorney General, 

By Vincent J. Celia, 

Assistant Attorney General. 



Public Building Construction — Form of Bid Security — Bank Treasurer's 

Check not Acceptable. 

March 19, 1954. 

Mr. Hall Nichols, Director oj Building Construction. 

Dear Sir: — You have recently asked my opinion as to whether a 
treasurer's check issued by a responsible bank or trust company payable 
to the Commonwealth of Massachusetts accompanying the low bid on a 
public works project for construction of a Control Tower at Logan Inter- 
national Airport may be accepted by the Division of Building Construc- 
tion as a proper form of bid security in view of G. L. c. 149, §§ 44A-44D, 
and in view of the terms of the bidding documents issued to bidders on the 
project. 

The appUcable statutory provisions are contained in G. L. c. 149, 
§ 44B, which provides in part as follows : 

"Every proposal for any work referred to in section forty-four A shall 
be accompanied by cash or a certified check on, or a certificate of deposit 
issued by, a responsible bank or trust company, payable to the common- 
wealth . . . The awarding authority concerned may, at its option, pre- 
scribe and receive a bid bond in lieu of cash, certified check or certificate 
of deposit. . ." 

The bidding documents issued to bidders and labelled "Notice to Con- 
tractors" contain the following language on page 1: 

"The bid must be accompanied (Attached to inside of front cover of 
this form) by cash or a certified check on, or a certificate of deposit issued 
by, a responsible bank or trust company, payable to the Commonwealth 
of Massachusetts in the amount of at least five per cent (5%) of the total 
bid price but in no event less than $100 nor more than $50,000. No other 
form of bid security will be accepted." 

The terms of the "Notice to Contractors" appear to be in conformity 
with the statute. It is noted that the awarding authority has not taken 
advantage of the option to accept a bid bond. 

It is my opinion that a treasurer's check is not an acceptable form of 
bid security within the meaning of the statute and the bidding documents 
referred to above. The statute involved provides that only two forms of 
bid security are acceptable in lieu of cash. The first is a certified check 
and the second is a certificate of deposit. A treasurer's check does not fall 
within either of these categories. 



P.D. 12. 55 

The Supreme Court has determined that the statutes regulating the 
bidding procedure on public works contracts cannot be waived. It is 
irrelevant that a benefit to the Commonwealth might result from such a 
waiver. See Oijford v. Covnnissioner of Public Health, 328 Mass. 608, 
616-617; FmsI Side Construction Co. Inc. v. Adams, 329 Mass. 347. 

It would appear, therefore, that the present contract must be awarded 
to the lowest responsible bidder who has complied with the statute or, in 
the alternative, all bids must be rejected. Page 8 of the "Notice to Con- 
tractors" contains the following language concerning rejection of bids: 

"The right is reserved to reject any and all proposals and to waive 
informalities. Any unit price bid that contains a unit price which is unduly 
high or low may be rejected as unbalanced. If a contract for the work 
is awarded, it will be awarded to the lowest responsible and eligible bidder 
determined in accordance with the provisions of Gen. LaA\s (Ter. Ed.) 
Chap. 149 as amended by Chap. 480, Acts of 1939, and Chap. 699, Acts 
of 1941." 

In the Oifford case, at page 616, the court stated that such a "right to 
reject " did not of itself authorize the awarding authority to make an award 
in violation of the statute. If action is taken under this clause, a contract 
can be awarded only after new bids are submitted. 

Very truly yours, 

Georgb Fingold, Attorney General. 



Group Life Insurance Policies for Purchasers of Security — Validity of 
Contract — - Illusory Contract. 

April 8, 1954. 
Hon. Joseph A. Humphreys, Commissioner of Insurance. 

Dear Sir : — You have recently asked this department for an opinion 
relating to group life insurance. From your letter, and from more recent 
conferences with members of your department, I understand that the facts 
relating to the group life insurance poHcy which has been submitted to 
you for approval are as follows: 

"A domestic life insurance company has been requested to issue, under 
the authority of section 133 (c), a group hfe insurance policy insuring the 
lives of purchasers of accumulative investment programs who enter into 
agreements with the vendor of the program to pay the purchase price 
thereof in instalments. The investment program purchase agreement pro- 
vides that the purchaser of the program will pay therefor an agreed 
amount (not exceeding ten thousand dollars), in equal periodic instalments, 
over a period of not more than ten years. The vendor of the investment 
program agrees, through a bank acting as an agent of the vendor and cus- 
todian of the funds, that it will apply the net amount of all instalment 
payments to the purchase for the investment program purchaser of shares 
of an investment trust fund. 

"The investment program purchase agreement provides that it may be 
terminated by the purchaser at any time during his life upon five calendar 
days' prior written notice delivered to the vendor's agent. If the power 
to terminate the agreement is exercised by the purchaser, his insurance 



56 P.D. 12. 

coverage under the group insurance policy terminates at the end of the 
period for which a premium has been paid on his account. Should the 
purchaser, without terminating the agreement in the manner provided, 
breach the agreement by defaulting in his obligation to make any instal- 
ment payments of the purchase price, the insurance upon his life will, 
under the provisions of the policy which the Life Insurance Company will 
issue in this case, automatically cease upon the date any instalment pay- 
ment becomes thirty-one days overdue. The effect of these provisions is 
that the insurance coverage will continue in force upon the life of any 
program purchaser only during the period that he continues to be under 
obligation to complete payment of the purchase price of the program and 
has not defaulted in his obligation. 

"The investment program agreement further stipulates that in the event 
of the death of the program purchaser prior to completion of his purchase 
agreement, that agreement shall be binding upon his estate and the amount 
of all instalment payments then remaining unpaid shall become immedi- 
ately due and payable by his estate, the proceeds of the group insurance 
being applied to complete such payments. 

"The power to terminate the investment program which is reserved to 
the program purchaser during his life is his personal privilege and does 
not pass to his representatives. If the purchaser dies while the purchase 
agreement is outstanding, the obligation of his estate is final and binding. 
The insurance to be issued covers this obligation of the estate." 

In addition to the above statement of facts I have examined the pro- 
posed agreement between the vendor and the purchaser of the investments 
and also the form of policy to be issued by the life insurance company. 

Your first question is as follows : 

"May a domestic life insurance company under the authority contained 
in subdivision (c) of section 133 of chapter 175 of the General Laws issue 
a group life insurance policy insuring a group of purchasers of securities 
specified above if the policy complies ^^'ith the insurance laws in all other 
respects?" 

The answer to your first question is in the affirmative. Section 133 of 
chapter 175 specifies the purpose for which group life insurance may be 
issued. Subdivision (c) specifically includes " a group of persons who . . . 
are debtors ... of the vendor of any property for its purchase price, 
under an agreement to pay any such indebtedness ..." The agreement 
of the purchaser who signs the "application for accumulative investment 
program" which you have submitted to me is a debtor of a vendor within 
the meaning of this subdivision (c). In such application the applicant 
makes a specific agreement to continue regular instalment payments until 
a total amount has been paid. This constitutes a valid contract. The fact 
that the applicant can terminate his future obligations, and forfeit a cer- 
tain amount which he has paid and which is to be applied toward insurance 
and administrative costs, does not make the contract to purchase illusory. 

The agreement and policy which you have shown to me indicate facts 
slightly different, in minor technicalities, from some of the facts set forth 
in your letter. In the letter you indicate that the insurance coverage will 
terminate "at the end of the period for which a premium has been paid." 
The policy, however, indicates that the coverage will terminate at the 
moment the purchaser of the investment program ceased to be a debtor. 



P.D. 12. 57 

This latter interpretation of the facts makes the agreement and poHcy 
consistent with section 133. You suggest in your letter that the insurance 
to be issued covers the obligation of the estate. This is accurate. However, 
under our section 133, the insurance proceeds must be paid to the vendor 
or creditor, not to the estate. This is in fact the pro\'ision of the agree- 
ment and the policy which you have submitted to me. 
Your second question is as follows: 

"Do the provisions of section 121 of chapter 175 of the General Laws 
prohibit the issuance of a group life insurance policy under the authority 
of subdivision (c) of section 133 of said chapter, if said policy proposes to 
insure a group of purchasers of accumulative investment programs such 
as are referred to above?" 

The answer to your second question is in the negative. On the facts 
set forth in your letter, and also on the agreements set forth in the printed 
matter you have submitted to me, there is no inducement passing from 
the life insurance company in connection with the placing of such group 
life insurance. Therefore, the arrangement you have submitted to me is 
not a violation of section 121 of chapter 175. There would, however, be 
a violation of this section if the life insurance company were identical with 
the vendor under the investment program, or if the insurance company 
benefited by or had any connection, direct or indirect, or any officer, agent 
or broker of the insurance company had any such connection, direct or 
indirect, with the sale under this investment program. In the facts which 
you have submitted to me, and in the printed material, there is no indica- 
tion that there is any such connection or benefit. I have also received 
your verbal information that there is no such benefit or connection. There- 
fore, the answer to your second question must be in the negative. 

^^ery truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

Hospitalization Rates for Prematurely Born Infants — Interpretation of 

Inconsistent Statutes. 

April 8, 1954. 

Samuel B. Kirkavood, M.D., Commissioner of Public Health. 

Dear Sir: — You have recently asked this department for an opinion 
with regard to two apparently inconsistent statutes on the subject of hos- 
pitalization rates for caring for prematurely born infants. 

The question you present is as follows : 

"Which department, the Commission on Administration and Finance 
as directed under G. L. c. 7, § 30K, or the Department of Public Health 
as directed under G. L. c. Ill, § 67C, is authorized to establish ceiling rates 
in regard to hospitalization expenses for the prematurely born infant?" 

It is my opinion that the provision of G. L. c. Ill, § 67C, that the De- 
partment of Public Health shall establish ceiling rates for the care and 
hospitalization of infants weighing four and one-half pounds or less at 
birth, is effective and operative notwithstanding the later provision, con- 
tained in G. L. c. 7, § 30K, as added by St. 1953, c. 636, § 2. 



58 P.D. 12 

There is little or possibly no inconsistency between these two provisions. 
Section 67C relates primarily to the payments to be made to a hospital 
by the board of health of a city or town, whereas section 33K relates pri- 
marily to payments by departments, boards or commissions of the Com- 
monwealth. In addition, section 33K relates to "rates" for genera! classes 
of patients; whereas section 67C relates to "callings" on expeises for pre- 
mature babies. The inconsistency between the statutes could arise only 
if, under section 67C, the infant hai no legal settlement in the Common- 
wealth and the hospitalization expense mast therefore "be paid by the 
commonwealth upon the approval of bills t'lerefor." 

Under accepted rules for the construction of statutes, where there is the 
possibility of some inconsistency between two provisions, preference should 
be given to the statute which covers a particular or minute situation (such 
as section 67C covers the single and specific matter of premature babies) 
rather than to a statute which covers a general or broad subject matter 
(such as section 30K which covers all rates in all hospitals, sanatoria or 
infirmaries licensed by the Department of Public Health). 

Furthermore, accepted rules for the interpretation of statutes prevent 
an interpretation which will act as an implied repeal of earlier provisions 
of the law. An express repeal will, of course, be given effect; but a con- 
struction should be adopted, if reasonable, which would prevent an implied 
repeal of existing statutes. 

A reasonable interpretation of the two statutes mentioned above re- 
quires that specific effect be given to the detailed provisions of section 67C 
and that section 30K be construed as not applying to the specific instance 
of prematurely born infants which is referred to in section 67C. This 
interpretation will give a reasonable and broad meaning to both statutes, 
and it will give effect to the common rules of statutory interpretation set 
forth above. 

For these reasons your question is answered with the opinion that the 
Department of Public Health is authorized, under the provisions of G.^jL. 
c. Ill, § 67C, to establish ceiling rates as to expenses for the care and hos- 
pitalization of an infant weighing four and one-half pounds or less at birth. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney d'c/ieral. 



Pitblic Building Construction — Bid Statute — Extra Work Order — 
Substantial Change in Original Contract. 

April 8, 1954. 
Mr. Hall Nichols, Director of Building Construction. 

Dear Sir : — You have asked this department for an opinion concern- 
ing a proposed extra work order in relation to the fireproofing contract at 
the Phillips Building;, Worcester State Hospital. 

By contract dated August 17, 1953, the Peabody Construction Co., Inc. 
agreed to perform certain fireproofing and plumbing renovation work at 
the Phillips Building for the sum of $243,516. Among other work, the 
contract called for the installation of concrete slabs in place of wood floor- 



P.D. 12. 59 

ing. After completion of the first of four floors, it became apparent that the 
walls of the building were not of sufficient strength to support the pro- 
posed concrete slabs. The plans of the building submitted to the con- 
tractor indicated the presence of solid walls at least eight inches thick. 
In fact, the walls were not solid, were entirely inadequate to support the 
proposed new concrete floor slabs and were not even considered safe to 
support the weight currently placed upon them. 

As a result of the foregoing disclosures, an extra work order has been 
proposed as outlined in a letter from the Director of Building Construction 
and from the Department of Mental Health directed to the Chairman of 
the Commission on Administration and Finance. Page 5 of said letter 
states that the proposed extra work order contemplates "a structural sys- 
tem consisting of columns and beams to support the new reinforced con- 
crete floor slabs entirely independently of the existing brick wall system, 
including new foundations in the basement for the columns, and structural 
steel supports for the concrete slabs already poured for the first floor." 

The cost of the proposed extra work order is $131,796.35 as compared 
with the original contract price of $243,516. It is noted that a substantial 
part of the contract price is made up of items for plumbing, heating, paint- 
ing and the like which do not relate to the cost of the floor installation. 

It is the opinion of this ofiice that the magnitude and nature of the work 
involved go beyond the scope of work which might be authorized under 
an "extra work order." A substantial change in the original contract is 
contemplated calling for the award of a contract only after compliance 
with the bidding procedure as embodied in G. L. c. 149, §§ 44A-44D. See 
Morse v. Boston, 260 Mass. 255; Morse v. Boston, 253 Mass. 247. 

The recommendation for the extra work order states that time and 
money will be saved if the present contractor can be required to proceed 
under an extra work order. Benefit to the Commonwealth, however, is 
not a ground for ignoring the bid statute. See Gifford v. Commissioner of 
Public Health, 328 Mass. 608, 616-617; East Side Construction Co., Inc. v. 
Adams, 829 Mass. 347. 

It should be made clear that the foregoing discussion relates to work 
which is not required to be done under the terms of the original contract. 
The mere fact that the plans were in error will not justify the contractor 
in avoiding his obligation to install the concrete floor slabs in a safe and 
workmanlike manner. By express terms in the contract, the contractor 
has stated that his bid is based upon his own examination of the site and 
that he has not relied on plans, measurements, dimensions, calculations, 
etc., of the Commonwealth (page 16 of contract). It is further stated that 
no allowance will be made for errors found in the plans, surveys, etc. (page 
17 of contract). It is our opinion that the proposed extra work order 
probably requires work which could not be insisted on under the original 
contract. 

In summary, it is our opinion that the proposed extra work order should 
not be approved for the reason that, in magnitude and nature of the work 
involved, it goes beyond the scope of the original contract and cannot be 
considered incidental thereto. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 



60 P.D. 12. 



Department of Public Works — Province Lands — Authority of Commis- 
sioner to transfer Province Lands from Division of Waterways to Divi- 
sion of Public Beaches. 

April 13, 1954. 

Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — This is in reply to your two letters raising the question of 
your administrative authority to transfer the Province Lands from the 
Division of Waterways to the Division of Public Beaches, both of which 
divisions are within your department. 

The answer to your question is that you do, as Commissioner of the 
Department of Public Works, have authority to transfer the Province 
Lands from the Division of Waterways to the Division of Public Beaches. 

The Province Lands have been subject to the control of several adminis- 
trative agencies. In 1893 the general care and supervision of these lands 
were given to the "Board of Harbor and Land Commissioners." (St. 1893, 
c. 470.) In 1916 such board was aboUshed and its rights and duties were 
transferred to the "Commission on Waterways and Public Lands," which 
commission was created at that same time. (St. 1916, c. 288.) In 1919 
this latter commission, in turn, was abohshed and its rights and duties 
were transferred to the Department of Public Works established by the 
same act. (St. 1919, c. 350, § 111.) By section 113 of this act a new 
"Division of Waterways and Public Lands" was organized in the Depart- 
ment of Public W' orks, and such division was given the rights and duties 
of the former "Commission on Waterways and Public Lands." This situa- 
tion continued for several years, and is indicated in statutory form in the 
1921 General Laws of Massachusetts. (G. L. c. 16, § 2; c. 91, § 25.) In 
1927 the "Division of Waterways and Public Lands" was consolidated 
into the Department of Public Works itself, and the word "division" was 
removed from the statutes and the word "department" was inserted in 
place thereof. (St. 1927, c. 297.) From that time on the powers and 
duties most recently conferred upon the Division of Waterways and Public 
Lands were exercised and performed only by the Department of Public 
Works. 

From 1927 on there was no "Division of Waterwaj^s and Public Lands," 
and the only successor of the original "Board of Harbor and Land Commis- 
sioners," to which had originally been given the care and supervision of 
the Province Lands, was the Department of Public Works. This state of 
the law required the elimination of the word "division" and the insertion 
of the word "department" in our General Laws in order to make them 
conform with existing substantive laAV. This was done in 1931. (St. 1931, 
c. 394: — see title and § 71.) Accordingly, the General Laws of Massa- 
chusetts in the Tercentenary Edition of 1932 refer to the Department of 
Public Works as having the supervision of the Province Lands, with no 
mention at all of any Division of Waterways and Public Lands. (G. L. 
c. 91, § 25.) 

In 1938 an entirely new "Division of Waterways" was established in 
the Department of Public Works. (St. 1938, c. 407). This division has no 
connection with any of the original commissions or boards or divisions, and 
is not a successor to any of them. Another division, the "Division of 



P.D. 12. 61 

Public Beaches," was also established in the Department of Public Works 
in 1953. (St. 1953, c. GG6.) 

There is nothing in any of our existing Massachusetts statutes which 
indicates that the Province Lands are or have been within the jurisdiction 
of the existing Division of Waterways. If that be a fact, it was accom- 
plished by a direction of you or your predecessor under your general ad- 
ministrative authority under chapter 16 of the General Laws, and the 
paramount authority to deal with the Province Lands still remains in the 
Department of Public Works and in you as the executive and administra- 
tive head of that department. Therefore, you have authoritj^ at the pres- 
ent time to transfer the Province Lands out of the Division of Waterways 
and into the Division of Public Beaches. 

It may be that under the 1953 statute creating the Division of Public 
Beaches, particularly under section 2 which adds a new section 61 to chap- 
ter 91 of the General Laws, the Province Lands have already been trans- 
ferred to the Division of Public Beaches. This would be so if the entire 
area of the Province Lands comes within the description "any ocean 
beach" in said section 61. In view of the large area and varied character 
of the Province Lands it is possible that this new section 61 does not oper- 
ate as an automatic transfer of all the Province Lands to the Division of 
Public Beaches. 

The opinion set forth above, indicating your authority to transfer the 
Province Lands from the Division of Waterways to the Division of Public 
Beaches, is based upon the statutory history set forth above, and is not 
based in any way upon the 1953 act relating to the Division of Public 
Beaches. 

Very truly yours, 

George Fingold, Attorney Ceneral, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

State Employee — Re-em'ployment of Disabled Veteran — Voluntary 
Resignation of Veteran. 

April 14, 1954. 

Alton S. Pope, M.D., Deputy Commissioner, Department of Public Health. 

Dear Sir : — You have recently made inquiry concerning the re-employ- 
ment of a disabled veteran. Your question concerns — 

"... the obligation of the Westfield State Sanatorium to re-employ a 
disabled veteran who had voluntarily resigned from his position as Insti- 
tution Porter at Westfield after slightly less than three years of service, 
with a written resignation. This man claims that as a disabled veteran 
he is entitled to reinstatement regardless of whether the appointing au- 
thority considers his reappointment for the best interest of the service." 

Under the facts set forth in your question, the present statutes of 
Massachusetts do not place you under any legal obligation to re-employ 
the disabled veteran who voluntarily resigned from his position. 

Our laws contain many provisions which protect and prefer veterans 
and especially disabled veterans in and to State service. There are also 
numerous statutes protecting veterans in State service from being invol- 



62 P.D. 12. 

imtarily separated from such employment. There are also statutes which 
protect any State employee who resigns his employment in order to enter 
the military or naval forces of the United States. I have made particular 
examination of G. L. c. 30, § 9A, and of St. 1941, c. 708, § 1. However, 
neither of these statutes gives any protection to a veteran who leaves the 
State service under a voluntary written resignation. In our civil service 
statute a resignation is defined as "a permanent voluntary separation 
from the service." G. L. c. 30, § 1. 

Because the veteran in your case " voluntarily resigned from his position " 
his employment relation with the Commonwealth came to a permanent 
and complete end. Because of such resignation, the statutes as they now 
exist do not give such veteran a right to his former employment. But he 
is, of course, entitled to preference in making application for new employ- 
ment and such preference will be given to him upon an application in the 
usual form. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

Zoning Enabling Law (G. L. c. 40 A) — Effect on Existing Zoning Ordinances 

and By-laws. 

April 30, 1954. 

His Excellency Christian A. Herter, Governor of the Commonwealth. 

Sir: — You have submitted to me for examination and report enacted 
bill numbered Senate 376, entitled "An Act to amend the Zoning Enabling 
Law."i 

This bill amends chapter 40 of the General Laws by striking out the 
eight sections numbered 25 to SOB, inclusive, conferring upon the cities 
and towns in the Commonwealth the power to regulate the use of the land 
and buildings within their corporate limits, to establish boards of appeal 
created for the purpose of cushioning and adjusting individual hardship 
cases and providing for the protection of the rights of those injured by the 
improper enforcement of the zoning laws and the rules and regulations 
issued thereunder, and inserting a new chapter 40A in the General Laws, 
entitled "The Zoning Enabling Act" containing twenty-two sections cov- 
ering in a general way the same subject matters. 

The legislation apparently proceeds upon the premise that the subject 
of zoning is of such importance that it should be treated in a separate 
chapter in the General Laws, and the new act carries forward most of the 
provisions of the present sections 25 to SOB, inclusive. There are numer- 
ous minor perfecting changes in the existing law but very few, if any, 
which alter the substantial structure of the present provisions. 

I note that section 1 of this legislation strikes out sections 25 to SOB, 
inclusive, of chapter 40 which provide the authority for the cities and towns 
to enact zoning ordinances and by-laws. However, I also observe that by 
the terms of section 3 of this legislation the provisions of the new chapter 

'Approved by the Governor on May 3, 1954, to become chapter 368 of the Acts of 1954. 



P.D. 12. 63 

". . . so far as they are the same as those of sections twenty-five to 
thirty B, inclusive, of chapter forty of the General Laws, shall be con- 
strued as continuations of said provisions, and the enactment of this 
statute shall not affect the validity of any action lawfully taken under said 
provisions prior to the effective date of this act." Since the new act re- 
instates in substance and in many cases the precise verbiage of the present 
legislation and is obviously intended to continue the present zoning laws 
in a perfected form, I am unable to say that the vitality of the existing 
zoning ordinances and by-laws of the various cities and towns is impaired. 
The Supreme Court said in the case of Brett v. Building Commissioner of 
Brookline, 250 Mass. 73, 80, "All property is held subject to the police 
power." Of course, reasonable zoning laws are an exercise of the police 
power. Moreover, the court has many times said that "Every presump- 
tion is indulged in favor of the validity of a statute." Talbot v. Hudson, 
16 Gray 417, 424. Lowell Co-operative Bank v. Co-operative Central Bank, 
287 Mass. 338, 343. Howes Brothers Co. v. Unemployment Compensation 
Commission, 296 Mass. 275, 284. 

The bill appears to be in proper form, and if enacted into law would, in 
my opinion, be constitutional. 

Very truly yours, 

George Fingold, Attorney General. 

State Purchasing Agent — Effect of "Purchase Order" as a Contract — 
Right to Cancel — Interest of State Officer in Public Contract. 

May 6, 1954. 
Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — Your recent letters, referring to the highway resurfacing 
work performed by the William A. Jones Co., request an opinion as to 
whether or not, upon the basis of the facts set forth therein, payment to 
said company would be legal and proper. 

The facts submitted to us are as follows : 

On October 2, 1953, the Department of Public Works sent to the State 
Purchasing Agent a requisition for the surfacing of a public highway in 
Barnstable. Thereafter, the State Purchasing Agent sent out information 
as to this work, bids were received, the Department of Public Works 
approved the lowest bid, and on October 19 the Comptroller encumbered 
the appropriation for the estimated cost of the job. Notification, by means 
of a "Purchase Order" dated October 15, was mailed on October 19 to 
the William A. Jones Co., whose bid was the lowest. The Jones Company 
received the "Purchase Order" on October 22. This "Purchase Order" 
carried an instruction that work was to proceed "upon receipt of instruc- 
tions." It also was accompanied by a mimeographed "Special Provisions 
for Resurfacing Projects" which provided, in addition to certain detailed 
specifications as to resurfacing, that the successful bidder "must furnish 
list of sources of material," and also "must list all outstanding orders for 
bituminous concrete on State Highways." Said "Purchase Order" was 
also subject, until performance by the Jones Company, to change or can- 
cellation at the option of the Commonwealth. Sometime after October 22 
a representative of the Department of Public Works inspected the site of 
the proposed resurfacing, determined that more material was necessary 



64 P.D. 12. 

than was specified in the original "Purchase Order," and as a result of 
such representative's report, a second " Purchase Order" dated November 6 
was sent to the Jones Company for the additional quantity of material 
which Avas necessary for this resurfacing job. Immediately upon receipt 
of the second "Purchase Order" the Jones Company started the work, and 
completed the job on November 20. On November 20 the Jones Com- 
pany billed the Commonwealth under both "Purchase Orders." Payment 
was duly made under the second "Purchase Order," but no payment has 
yet been made under the first "Purchase Order." The reason for the failure 
of payment under the first "Purchase Order" was because of the provisions 
of G. L. c. 268, § 10, in that, until the date of October 20, the treasurer of 
the Jones Company was a member of the Massachusetts House of Repre- 
sentatives. On October 20 the Representative resigned his office as treas- 
urer and from that date on he has had no interest, direct or indirect, in the 
Jones Company. 

General Laws, c. 268, § 10, provides as follows: 

"A member of the general court, or of the executive council, or of a 
state department or commission, who is personally interested, directly or 
indirectly, in a contract made by the general court or by either branch 
thereof or by such department or commission or by its authority, in which 
the commonwealth is an interested party; . . . shall be punished by a 
fine of not less than fifty nor more than one thousand dollars or by such 
fine and imprisonment for not more than one year." 

The above statute is applicable to a "contract." If, in the present case, 
there is no "contract," then the statute is not applicable. 

In my opinion, upon the facts in this case, there was no contract until 
after the time the member of the General Court had resigned his position 
as treasurer. The facts indicate that from that time on "he has had no 
interest, direct or indirect, in the Jones Company." 

In order to have a legal bilateral contract there must be a binding obli- 
gation on both parties. In the present case the "Purchase Order" sent 
by the Commonwealth to the Jones Company was "subject, until perform- 
ance by the Jones Company, to change or cancellation at the option of 
the Commonwealth." The Commonwealth was under no binding obliga- 
tion, and therefore there was no contract in existence. The right of can- 
cellation prevented the formation of a binding contract. Bernstein v. 
W. B. Alanufacturing Co., 238 Mass. 589. Williston on Contracts, § 43 
n. 21, § 104 n. 12. The transaction was merely a "Purchase Order," as 
the document sets forth, and it was not a contract. 

In some instances the submission of a bid to and its acceptance by the 
Commonwealth would result in a completed contract upon such accept- 
ance. Williston on Contracts, § 31. But there would be no contract upon 
acceptance of a bid if something further were contemplated. Franklin A. 
Snow Co. V. Commonwealth, 303 Mass. 511, at 516. Op. Atty. Gen., 1940, 
pp. 77, 78. Williston on Contracts, § 31 nn. 5, 6. In the present case 
after the "Purchase Order" was sent to the Jones Company on October 19, 
there still remained the matters of (1) the instruction to proceed with the 
work, (2) the list of "sources of material," (3) the list of "outstanding 
orders" and (4) the possibility of cancellation before the work started. 
In fact, the instruction to proceed with the work was delayed, because of 
the need for additional material, until such further material had been or- 



P.D. 12. 65 

dered by a later purchase order. In the present case it is clear that there 
is no bid which was accepted by the Commonwealth in such a way as to 
create a contract; but that on the contrary all we have is a "Purchase 
Order" as the document itself sets forth. 

The contract in the present case came into existence only upon the per- 
formance by the Jones Company of the work called for by the "Purchase 
Order" and by the acceptance of that work by the Commonwealth. This 
took place about a month after the member of the General Court had 
ceased to have any interest in the work or in the contract involved in Pur- 
chase Order No. 304113. 

In conclusion, upon the facts set forth in your letters, you are advised 
that payment to the Jones Company of the amount called for by Purchase 
Order No. 304:113 is legal and proper. 

Very truly yours, 

George Fingold, Attorney General. 



Group Insurance — Retired State Employee — Proceeds after Retirement 

May 12, 1954. 
Mr. Herman B. Dine, Director of Accounts. 

Dear Sir: — Your recent letter poses the following question: 

"I shall appreciate it if you will advise me if employees, originally cov- 
ered by group insurance under G. L. c. 40, § 5, cl. (44), and later retired, 
may continue to receive the benefits of the above statute." 

In my opinion they may, provided they bring themselves within the 
provisions of sections 133 to 138A, inclusive, of chapter 175 of the General 
Laws, and subject to the limitations hereinafter referred to. 

Said sections make provisions for group life insurance of certain em- 
ployees including "the members of any association of state, county or 
municipal employees, who are regularly and permanently employed by the 
commonwealth, a county or a municipality ..." Section 134 of chap- 
ter 175 provides "Any policy issued under section one hundred and thirty- 
three may provide that the term 'employee' shall include retired em- 
ployees . . . ." It should be here noted that the words "ma?/ provide" 
are used by the General Court rather than the phrase ''shall provide." 

Clause (44) section 5 of chapter 40 obviously is intended to provide for 
municipal financing of group life insurance covered by sections 133 to 138A ' 
inclusive, of chapter 175. It will be seen that the group life insuranc® 
provisions, so far as they relate to municipal employees, were intended to 
apply to "employees" and no one else. A retired employee would not 
ordinarily come within the definition of the word "employee." He does 
not receive any "gross compensation" nor indeed "compensation" but 
receives a retirement allowance — quite a different thing. It was for this 
reason, I believe, that section 134 was amended to provide "Any policy 
issued under section one hundred and thirty-three may provide that the 
term 'employee' shall include retired employees . . . ." It will be noted, 
as before stated, that this provision does not require that the policy include 
retired employees but leaves it optional. 



66 P.D. 12. 

Accordingly, as I have said before, it is my opinion that if the policy in 
question is written so as to define "employee" as including "retired em- 
ployees" the answer to your question is in the affirmative, otherwise in 
the negative. 

Very truly yours, 

George Fingold, Attorney General, 

By Fred W. Fisher, 

Assistant Attorney General. 

Income Tax Return — Service of Notice of Delinquency on Prisoner. 

May 12, 1954. 
Hon. William A. Schan, Commissioner of Corporations and Taxation. 

Dear Sir : — You have recently made inquiry regarding the failure of 
a prisoner to file an income tax return. 
Your first question is as follows : 

"If the taxpayer's wife signs for receiving the registered mail notice 
while the taxpayer is incarcerated, has he been duly notified?" 

In my opinion this question must be answered in the negative. The 
statute (G. L. c. 62, § 56) provides for a punishment if a person "without 
reasonable excuse fails to file a return within twenty days after receiving 
notice from the commissioner of his delinquency ..." I think that re- 
ceipt by the taxpayer's wife while the taxpayer is incarcerated does not 
comply with the requirement for the taxpayer himself "receiving notice 
from the commissioner." 

Your second question is as follows : 

"If a taxpayer is given the twenty-day notice while he is incarcerated 
does the twenty-day period start to run while he was so distrained?" 

In my opinion the answer to this question is in the affirmative. Our 
statute which relates to the tolling of a limitation for commencing an action 
makes reference to a prisoner only when he is in the position of the plain- 
tiff. G. L. c. 260, § 7. Under the provisions of G. L. c. 127, § 6, it is pos- 
sible to serve legal process upon a prisoner. In a case dealing with the 
six-year period of the statute of limitations, in an ordinary action of con- 
tract, it was held that the defendant's incarceration in prison did not toll 
the statute. Turner v. Shearer, 6 Gray (72 Mass.) 427. See also the recent 
annotation on this subject in 24 A. L. R. 2d at pages 618 and 626. 

But there remains a question of doubt even as to this second question 
because of the requirement that your notice must have been "received" 
by the taxpayer. If service is made under the provisions of G. L. c. 127, 
§ 6, you must be sure that the process is actually received by the ta.xpayer. 

Your third question is as follows : 

"If the twenty-day period does not start to run while the taxpayer is 
incarcerated, does it begin to run when he is freed or should another 
notice be served on him to start the twenty-day period running?" 

In view of my answer to your second question, indicating that there is 
no tolling of this period of twenty days because the taxpayer is incarcer- 
ated, there is no occasion to answer this third question. However, in view 



P.D. 12. 67 

of the negative answer to your first question, and of the possible doubt 
occasioned by the necessity that the prisoner must actually "receive" 
your notice, it seems to me that as a practical matter you should have a 
new notice served upon the taxpayer after he is freed. I see no great 
difficulty in this procedure, subject, of course, to the applicable statute of 
limitations, and such suggested procedure would cover all of your doubtful 
matters. 

Very truly yours, 

George Fixgold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



Workmen^s Compensation — Self Insurance hy Separate Division of 
Corporation otherwise Covered by Insurance. 

May 17, 1954. 

Mr. Edward P. Doyle, Secretary, Division of Industrial Accidents. 

Dear Sir: — You have recently written this department with reference 
to the application of the American Bridge Division to act as a self-insurer. 
I note from your letter that — 

"the American Bridge Division, a part of the United States Steel Cor- 
poration, which is operated as a somewhat independent unit of said cor- 
poration with large scope of autonomy in such operation, has applied to 
the Division of Industrial Accidents, as provided in G. L. c. 152, § 25A, 
for license as a self-insurer in this Commonwealth. The United States 
Steel Corporation is insured in this Commonwealth under workmen's 
compensation with the Liberty Mutual Insurance Company." 

Upon this state of facts you ask the following question : 

"Question has arisen as to whether or not the Division of Industrial 
Accidents may approve the application of said American Bridge Division 
for license as a self -insurer aforesaid as having the status of an 'employer' 
as the latter term is defined in the Workmen's Compensation Law?" 

Subject to the technical correction in the last paragraph of this letter, 
your question must be answered in the affirmative, that is, that you have 
authority to approve the application of the American Bridge Division as 
a self-insurer. 

Under G. L. c. 152, § 1, "employer" is defined as "an individual, part- 
nership, association, corporation or other legal entity . . . employing em- 
ployees subject to this chapter." The provisions applicable to self -insur- 
ance are contained in section 25A of such chapter. 

Under Pallotta's Case, 251 Mass. 153, it is possible for an employer to 
be insured for workmen's compensation purposes as to some of his em- 
ployees and not insured for other employees in a portion of the employer's 
enterprises which has "no natural connection, with the portion which is 
covered by insurance." I believe this principle applies to the American 
Bridge Division. In its application for the provision of being a self-insurer 
the following statement of fact is set forth : 



68 P.D. 12. 

"Although American Bridge Division is an operating division of United 
States Steel Corporation, its operations (in Massachusetts and elsewhere) 
are carried on wholly apart from those of other divisions of the Corpora- 
tion. The Division has its own administrative staff, including accounting 
department, contracting, erecting and operating departments, as well as 
a casualty department for the administration of workmen's compensation 
for Division employees. Payrolls are of course separate from those of 
other divisions and pay checks are drawn on American Bridge Division 
accounts. Its work in Massachusetts, other than a small sales office, is 
confined exclusively to the erection of structural steel and American Bridge 
is the only division of United States Steel Corporation engaged in such 
work." 

The possibility that a single employer could be covered by workmen's 
compensation as to one part of its business but not covered as to a "wholly 
different and distinct" kind of business "quite disconnected ... in place, 
nature and management" with the business covered is clearly recognized 
in Cox's Case, 225 Mass. 220, at 223. A direct holding to this effect was 
made in Pallotta's Case, supra. The present law in Massachusetts is 
clearh^ stated in Anderson's Case, 276 Mass. 51, at 52, as follows: 

"It was decided in Cox's Case, 225 Mass. 220, that the workmen's com- 
pensation act does not permit an employer to insure his employees in one 
part of his business and remain a nonsubscriber as to the rest of the busi- 
ness which, in substance and effect, is conducted as one business. It was 
expressly stated in that case that two wholly different and distinct kinds 
of business disconnected from each other in place, nature and management 
were not included within the scope of the decision. ... In Pallotta's Case, 
251 Mass. 153, it was decided that an employer who conducted two sepa- 
rate and distinct kinds of business could become a subscriber as to one part 
of the business without insuring his employees in the different and distinct 
business." 

A situation in which only a portion of the employees of an employer are 
covered is set forth in the case of Maryland Casualty Co. v. Taunton, 294 
Mass. 69. Stoltz's Case, 325 Mass. 692, is not inconsistent because in that 
case it is stated (page 695) that: 

"The city, as a single political entity, accepted the act by vote of 
its electorate and not by the individual departments into which it is 
organized." 

There are several cases in Massachusetts in which the principle that a 
single employer may be covered as to a portion of his employees and not 
as to all of them is clearly recognized. In several cases the court, in hold- 
ing that all employees of a single employer are covered, distinguishes the 
situation before them from Pallotta's Case by saying that the work of the 
separate groups of employees was not "two wholly different and distinct 
kinds of business quite disconnected with each other in place, nature and 
management." These cases are as follows: Phalen's Case, 271 Mass. 371, 
373. Shannon's Case, 274 Mass. 92, 94. Wright's Case, 291 Mass. 334, 
335-6. Fidelity & Casualty Co. of New York v. Cook, 301 Mass. 305, 307. 
Employers Mutual Liability Insurance Co. v. Merrimac Mills Co., 325 
Mass. 676, 680-1. 

The statement of facts regarding the American Bridge Division of the 
United States Steel Corporation apparently brings it within this principle 



P.D. 12. 69 

of law. Accordingly, it is permisaible for you to approve self-insurance for 
this portion of the United States Steel Corporation's business even though 
other portions are covered in different ways. 

There is one technical correction which should be made if the appHca- 
tion of the American Bridge Division is to be approved. The employer in 
this case, legally, is the United States Steel Corporation, not the American 
Bridge Division. The American Bridge Division has no separate legal 
existence apart from the United Steel Corporation. The Division could 
not be sued as such, but rather any court action would have to be against 
the corporate entity which is the United States Steel Corporation. Accord- 
ingly, if you give approval to this application for such self-insurance it 
should be in the name of the United States Steel Corporation covering the 
business and employees of the American Bridge Division of such employer. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

Change of Name of Educational Institution — Springfield College — - Referral 
to Board of Collegiate Authority — Interpretation of Statute. 

May 17, 1954. 
Hon. John J. Desmond, Jr., Commissioner of Education. 

Dear Sir: — You have recently asked this department for an opinion 
with reference to change of name of "International Young Men's Christian 
Association College, Springfield, Massachusetts," to "Springfield College." 

Your question is as follows : 

"I shall appreciate it if you will advise me if it is necessary for the 
Certificate of the Trustees for Change of Name of International Young 
Men's Christian Association College to Springfield College to be referred 
to the Board of Collegiate Authority in accordance with G, L. c. 69, 
§ 30." 

The answer to your question is in the affirmative, that is, that the articles 
of amendment providing for the change of name to the new name of 
"Springfield College," must be referred by the Commissioner of Corpora- 
tions and Taxation to the Board of Collegiate Authority in accordance 
with the provisions of G. L. c. 69, § 30. 

The provisions of said chapter 69, section 30, relate to certificates of 
organization of a corporation and articles of amendment providing for 
the power to grant degrees, and also to — 

"articles of amendment to the charter of an existing educational institu- 
tion . . . changing its name to a name which will include the term 'col- 
lege,' 'junior college' or 'university' ..." 

If the articles of amendment provide for such a change in name the 
articles must then be referred to the Board of Collegiate Authority for 
investigation, publication and hearing. It is clear that the new name, 
"Springfield College," to which the name of this educational institution 
has beer changed, is a "name which will include the term 'college.' " 



70 P.D. 12. 

Accordingly, the provisions of this statute must be complied with in con- 
nection with the change of name set forth above. 

An argument to the contrary could be made with apparent validity 
upon the basis that this kind of a change, from one name including the 
term "college" to a different name but which also includes the term "col- 
lege," was not within the intention of the Legislature. A plausible argu- 
ment discussing the legislative intention in cases like the present could 
be made, but the interpretation of this section 30 should be based upon 
the words of the statute itself and not upon an assumed intention of the 
Legislature which is contrary to the plain meaning of the statute. In 
order to construe the statute as not applying to a change from one name 
which includes the word "college" to a different name which also includes 
the word "college," the statute must be read as though it provided for 
reference to the Board of Collegiate Authority only when the amendment 
was one "changing its name to . . . include the term 'college.' " But 
this construction eliminates words which have been inserted in the statute 
by the Legislature. Recognized canons of statutory interpretation require 
that all words be given some meaning and value, and that it cannot be 
presumed that the Legislature inserted certain words without intending 
that they should have meaning. To construe section 30 as not applying 
to a change of the character before us would \dolate these canons of statu- 
tory construction and would ignore the plain meaning of the statute as 
adopted by the Legislature. The legislative history of this particular pro- 
vision confirms my opinion that the statute includes the kind of change 
now being considered. When this proposed statute was first presented to 
the Legislature in the session of 1943 (see Senate bills No. 485 and No. 520 
of 1943) the wording called for a referral of a change of name to the Board 
of Collegiate Authority when such change provided "for authority to use 
the designation of 'college,' 'junior college' or 'university' . . ." This 
phrasing could very clearly be interpreted to cover a new name which for 
the first time included the word "college" but to exclude the situation in 
which the word "college" was present in both the original name and in 
the new name. This particular phrasing, howe\'er, was abandoned by the 
Legislature in order to provide (see House, No. 1860 of 1943) for the 
phrasing which is now included in section 30 of chapter 69 of the General 
Laws. Because of this deliberate, and presumably intended, change of 
the wording of this part of the statute, it could not be said that the statute 
in its present clear form should be given a meaning contrary to the literal 
words and in accordance with an earlier phraseology which had been aban- 
doned by the Legislature. 

As indicated above, the answer to your question is that the article of 
amendment covering the change of name in the present case must be re- 
ferred to the Board of Collegiate Authority for proceedings under G. L. 
c. 69, § 30. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



P.D. 12. 71 



General Court, and Its Committees and Commissions — Penalty for Failure 
to appear as Witness after Summons — G. L. c. 3, § 38 A. 

May 18, 1954. 
His Excellency, Christi.vn A. Hehter, Governor of the Commonwealth. 

Sir: — You have submitted to me for examination and report enacted 
bill numbered Senate 716, entitled "An Act providing a Penalty for the 
Refusal by a Witness to appear, testify or produce Papers before the 
General Court or Either Branch Thereof or before Committees or Com- 
missions acting under Authority Thereof."' 

This bill adds a new section to chapter 3 of the General Laws which 
chapter deals with the General Court. The new section, 28A, makes it 
a misdemeanor for any person who has been summoned as a witness to 
appear before the General Court or any committee or commission thereof 
to fail to appear or to refuse to testify after appearance. This bill which 
has been submitted to you for signature properly provides that the failure 
to appear must be a "wilful" default, and that the failure to answer ques- 
tions must be a refusal "without constitutional right." Commission of 
either of these offenses is made a misdemeanor punishable by a fine of 
one hundred dollars to one thousand dollars, or imprisonment for thirty 
days to one year, or both. Prosecution under this new statute must be 
preceded by an order therefor adopted by the General Court or bj^ either 
branch thereof. Upon certification of such order the prosecution of the 
matter will be in charge of the Attorney General or the appropriate dis- 
trict attorney. This proposed new statute preserves the usual and exist- 
ing constitutional powers of the General Court to punish for contempt. 

A substantially similar statute has existed for almost one hundred years 
under our Federal laws. U. S. C. Title 2, § 192. The fact that the Massa- 
chusetts Constitution gives to the General Court express power to punish 
for contempt does not bar the enactment of a criminal statute covering 
the matter. Whitcomb's Case, 120 Mass. 118, 124. Jiirney v. AlacCracken, 
294 U. S. 125, 151. The fact that misconduct by a person may be punish- 
able as contempt of the Legislature and also be a misdemeanor under the 
criminal law does not constitute double jeopardy. Dolan v. Common- 
wealth, 304 Mass. 325, 344. In re Chapman, 166 V. S. 661, 672. Statutes 
making it a crime not to respond to a proper summons are common in 
our existing Massachusetts laws. G. L. e. 178, § 27; c. 233, §§ 5, 13, 13A. 
The recent Advisory Opinion of the Supreme Judicial Court (House No. 
2758), 331 Mass. 764, relates to legislative contempts and does not affect 
the provisions of this bill for criminal penalties which has been submitted 
to you. 

The bill appears to be in proper form, and if enacted into law would, in 
my opinion, be constitutional. 

Very truly yours, 

George Fingold, Attorney General. 

> Approved by the Governor on May 20, 1054, to become chapter 454 of the Acts of 1054. 



72 P.D. 12. 



Public Contract — Acceptance of Written Bid — Signed Check Constituting 

Signature. 

May 18, 1954. 

Ernest W, Dullea, Esq., General Counsel, State Airport Management 

Board. 

Dear Sir: — You have recently written this department concerning 
the bid submitted by William Gens & Sons, Inc. and have asked the follow- 
ing question: 

"Can the State Airport Management Board award a contract for work 
at Logan Airport to the lowest bidder, whose proposal to perform such 
work was not signed, but which was accompanied by a certified check, 
payable to the Commonwealth, as a proposal guaranty?" 

The facts indicate that William Gens & Sons, Inc. submitted a bid on 
the form prescribed by the board but, through inadvertence, neglected to 
sign the bid on the line reserved for that purpose. The business address 
of the corporation and the name of the president and treasurer were listed 
in the bid. In addition, the bid was accompanied by a certified check in 
the amount of $500 payable to the State Airport Management Board and 
signed by Wm H. Gens on behalf of Wm Gens & Son, Inc. The check 
bore the printed inscription ''Wm Gens & Son Inc Electrical Service 
Boston, Mass." In the upper left hand corner of the check appeared the 
words "Plan Deposit Generator." 

In the light of the foregoing facts, your question is answered in the afl[irm- 
ative. The bid relates to the furnishing and connecting of a portable gen- 
erator. It is governed by the provisions of G. L. c. 29, § 8A, which pro- 
vides in part : 

"Proposals for any contract subject to this section shall be in writ- 
ing . . ." 

The term "in writing" is defined by G. L. c. 4, § 7, cl. 38, which provides: 

" 'Written' and 'in writing' shall include printing, engraving, litho- 
graphing and any other mode of representing words and letters; but if 
the written signature of a person is required by law, it shall always be his 
own handwriting or, if he is unable to write, his mark." 

Chapter 29 requiring that the proposal be "in writing" does not require 
a "written signature" as described in chapter 4, section 7, although gen- 
eral principles of law may require that a written offer for a contract be 
"signed." The distinction between "signing" and a "written signature" 
has often been recognized. Cf. Irving v. Goodimate Co., 320 Mass. 454, 
459. 

In the present case, although the written signature was omitted from 
the bid, the bid may still be considered as "signed," when it is read to- 
gether with the signed check which accompanied it. Both documents are 
part of the same transaction and it appears from an examination of both 
documents that the check was signed in connection with the bid. Re- 
statement of Contracts, Sec. 208. Cf. Nicker son v. Weld, 204 Mass. 346, 
355. 



P.D. 12. ^ 73 

It is clear that the contractor has not complied with Article 5B of 
Standard Specifications for Airport Work which requires a written signa- 
ture. But the board has reserv^ed the right to waive any informality (see 
"Notice to Contractors") and may, if it desires, waive this informality in 
respect to the manner of signing the bid. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph H. Elcock, Jr., 

Assistant Attorney General. 

Neglect of Minor Children — Persons Subject to Penalty — Conduct which 
is Subject to Penalty — G. L. c. 273, § 1. 

May 28, 1954. 

His Excellency Christian A. Herter, Governor of the Commonwealth. 

Sir: — You have submitted to me for examination and report enacted 
bill numbered House 2636, entitled "An Act relative to offences and 
punishment for neglect of minor children.'" 

This bill amends section 1 of chapter 273 of our General Laws, which 
section deals with the offences of desertion and nonsupport and improper 
care of a minor child and provides punishment of a fine of not more than 
two hundred dollars or imprisonment for not more than one year, or 
both. The bill which has been submitted to you for signature makes an 
important amendment in the part of this section which relates to the care 
of minor children. Two changes are proposed by this new amendment. 
The first change specifies that the persons subject to punishment shall not 
be limited to "any parent," which is the provision in the existing law, but 
that the statute shall apply to "any parent of a minor cliild, or any guard- 
ian with care and custody of a minor child, or any custodian of a minor 
child." The general inclusion of "any custodian" is very broad, but 
nevertheless it seems to me that this change to include the guardian or 
custodian is a proper change. 

The second change, which is of more doubtful character, relates to the 
conduct which is prescribed. The present statute penalizes the conduct 
of any parent 

"... whose minor child b}"" reason of the neglect, cruelty, drunkenness, 
habits of crime or other vice of such parent is growing up without educa- 
tion, or without salutary control, or without proper physical care, or in 
circumstances exposing such child to lead an idle and dissolute life, ..." 

The new proposal penalizes conduct of a parent or a guardian or a 
custodian 

"... who wilfully fails to provide necessary and proper physical, edu- 
cational or moral care and guidance, or who permits said child to grow up 
under conditions or circumstances damaging to the child's sound character 
development, or who fails to provide proper attention for said child, ..." 

The exact extent and nature of the changes accomplished by the pro- 
posed amendment are difficult to predict. The restriction in the existing 

' Approved by the Governor on June 1, 1954, to become chapter 539 of the Acts of 1954. 



74 / P.D. 12. 

law, which Hmits the statute to undesirable conditions affecting the child 
which are caused "by reason of" certain specific vices of the parent, has 
been abandoned in the proposed amendment. The proposed new law re- 
fers to certain general undesirable conditions affecting the child and pro- 
vides that the parent or guardian or custodian who "fails" or "wilfully 
fails" to provide desirable conditions or who "permits" the undesirable 
conditions to exist shall be guilty of a crime and shall be subject to the 
penalties provided. 

The proposed amendment, as is obvious, broadens to a very consider- 
able extent the prohibitions of the statute. Two possible objections, which 
I call to your attention, grow out of this wider provision. The first is 
that the statute is now so broad, and in certain particulars is so vague, 
that it may be more extensive in its application than is actually intended 
by the Legislature. It is possible to see that almost any normal parent, 
whose child does not develop with a sound moral character, may be held 
to be in violation of some portion of the proposed wording. The other 
risk is that the very broadness and vagueness of the statute may become 
the basis of an argument that it is unconstitutional. As you are aware, 
a criminal statute, in order to be constitutional, must be sufficiently specific 
so that a person can determine whether his conduct will be in violation of 
the statute. 

In spite of the two possible criticisms which I have mentioned, in the 
above paragraph, I feel that you would be warranted in signing the bill. 
We can assume that the courts will give the statute a reasonable inter- 
pretation and will not extend its provisions to situations which could not 
have been wdthin the intention of the Legislature. As to the argument of 
unconstitutionality, I think you would be entitled to rely upon the very 
strong presumption of the constitutionality of any duly enacted statute. 
While I can see arguments against constitutionality, I cannot say that 
such arguments overcome this presumption of constitutionality. 

In view of the great need for more effective legislation in this field of 
parental care of minor children, and in view of the careful attention which 
has been given to this statute by the Legislature as well as by the Special 
Commission on Public Welfare Laws, I believe you are warranted in ap- 
proving this proposed statute. 

Very truly yours, 

George Fingold, Attorney General. 



Department of Public Works — Division of Waterways — Use of Capital 
Outlay Funds for Construction of Fences. 

June 2, 1954. 

Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — You have requested an opinion as to the validity of the 
proposed expenditure of funds appropriated under Item 7622-01 (Capital 
Outlay, St. 1952, c. 604) "for the improvement, development, maintenance 
and protection of rivers, harbors, tidewaters, . . , ," for the erection of 
fences in the area to be improved or developed. 

In my opinion, the expenditure for fences would be entirely valid as a 
reasonable and proper incident to the "improvement, development, main- 



P.D. 12. 75 

tenance and protection of rivers, harbors, tidewaters," etc. The construc- 
tion of a fence as a precautionary measure in hazardous areas could well 
be construed as an "improvement" in itself. 

It should be kept in mind, however, that expenditures under St. 1952, 
c. 604, Item 7622-01, are therein made expressly subject to the provisions 
of G, L., c. 91, § 11, with which you are doubtless already familiar. 

Very truly yours, 

George Fingold, Attorney General, 

By John V, Phelan, 

Assista7it Attorney General. 



Wire Tapping or Use of Dictaphone — Proposal to Restrict Power of Attorney 
General and District Attorneys — Veto by Governor. 

June 9, 1954. 

His Excellency Christian A. Herter, Governor of the Commomoealth. 

Sir : — You have submitted to me for examination and report enacted 
bill numbered Senate 144, entitled "An Act restricting the authority of 
the attorney general and district attorneys to authorize wire tapping." 

This bill amends our "eavesdropping" statute found in G. L. c. 272, 
§ 99. The present law has been on our books without change since 1920. 
It provides that, with one exception, the use of an instrument such as a 
"dictagraph or dictaphone," or the act of "tapping any wire," with intent 
secretly to overhear conversations of others, is a crime, and that the guilty 
party shall be punished by not more than two years in jail or a fine of not 
more than one thousand dollars, or both. The present statute was held 
constitutional in Commonivealth v. Puhlicover, 327 Mass. 303. The excep- 
tion specified in the statute is that w ire tapping or the use of an instrument 
such as a dictaphone is legal "when authorized by written permission of 
the attorney general of the commonwealth, or of the district attorney for 
the district." 

The proposed amendment which has been submitted to you for signature 
restricts the authority of the Attorney General and of the district attor- 
neys by requiring them first to obtain an order from a justice of the Su- 
preme Judicial Court or Superior Court permitting wire tapping. Section 
2 of the proposed bill adds new section 99A to chapter 272, which new 
section spells out in detail the procedure for obtaining a court order relat- 
ing to wire tapping. Section 1 of the proposed bill amends the present 

I section 99 by restricting authorization by the Attorney General or a dis- 

II trict attorney to cases in which the court order under new section 99A 
[i has been issued. 

!l I believe the proposed change would be against public interest. The 
' first and most important reason is that the proposed restriction is un- 
realistic and impracticable. The situation is clearly stated by the Judicial 
Council in its recommendation against the change. The members of the 
Judicial Council state as follows: 

"This bill would 'hamstring' the pubhc law enforcement officers in in- 
vestigating crime at a time w^hen organized criminals, throughout the 



76 P.D. 12. 

country, are violating every law of God and man, by murder, robbery, 
rape, kidnapping, treason, etc. ... It would give offenders a still better 
chance for every form of criminal activity against law-abiding citizens with 
less fear of detection, thus leaving the people still more unprotected by 
their laws." 

This proposed amendment was under consideration by the Legislature 
in 1953 and was referred to the Judicial Council at that time. The report 
which the Judicial Council made to you under date of December, 1953 
(1954 Public Document No. 144, pages 39-42), recites that the members 
of the Judicial Council believe that this proposal "should be opposed in 
the public interest." 

The situation is not changed by the new provision added by the present 
Legislature giving authority to the Attorney General and to the district 
attorneys to act "in case of emergency and when no such justice is avail- 
able," but providing that "on the next day" the law enforcement officer 
must apply for and obtain the required court order under the detailed pro- 
cedural provisions of proposed section 99A. The arguments that last 
year's bill is impracticable apply with equal force to the prohibition in the 
present bill against the continuance of legal wire tapping without the 
issuance of the required court order. The added complication caused by 
the suggested "emergency" provision makes the bill even less work- 
able. 

I know of no instance, during the entire 34 years that the present law 
has been on our statute books, where this law has been abused. It is my 
opinion that the present is no time to restrict the prosecuting officers of 
the Commonwealth in their use of this potent weapon against crime. The 
enforcement of law and order in our community would be hampered were 
this measure to be passed. Last year the district attorneys of the Com- 
monwealth were recorded as being against this measure. I understand 
that they feel the same about the present bill. 

A second objection to the proposed amendment is that it is unreasonably 
broad in its present form. You will note that the present section 99 covers 
both wire tapping and also the use of a dictaphone or similar instrument. 
Section 1 of the proposed amendment forbids both of these acts except 
when an order is issued under section 99A. But section 99A, as added by 
section 2 of the proposed amendment, permits issuance of a "wire tapping" 
order only. There is no provision for a court order relating to dictaphone 
use. This is the only interpretation that can be given to the clear word- 
ing of the proposed amendment. Under this interpretation the effective 
use of wire tapping by enforcement officials would be seriously hampered, 
but the use of the "device commonly known as a dictagraph or dictaphone, 
or however otherwise described, or any similar device or arrangement" 
would be absolutely prohibited without exception. 

In the third place, I suggest to you that the present time, when the 
Federal law enforcement officials are seeking to obtain the legal right to 
use wire tapping in their battle against increasing crime, is not the proper 
time to restrict our own law which has been in successful use, without 
abuse, for some 34 years. Many voices are being raised currently in favor 
of giving this right to the proper Federal law enforcement officials. Some 
of these statements are quoted in the latest report of the Judicial Council 
(pages 41, 42). As an example, I call your attention to the dissenting 
opinion of Mr. Justice Sutherland in Nardone v. United States, 302 U. S. 
379, at pp. 385-387, which he closes with the following statement: 



P.D. 12. 11 

"In the light of the deadly conflict constantly being waged between the 
forces of law and order and the desperate criminals who infest the land, 
we well may pause to consider whether the application of the rule which 
forbids an invasion of the privacy of telephone communications is not 
being carried ... to a point where the necessity of public protection 
against crime is being submerged by an overflow of sentimentality." 

I respectfully submit that the amendment provided for in the bill is 
unnecessary and unwise, and that the law should be allowed to remain in 
its present form. ' 

Very truly yours, 

George Fingold, Attorney General. 



Rule Against Perpetuities — Rule Modified and Clarified — G. L. c. 18Ji.A. 

June 10, 1954. 

His Excellency Christian A. Herter, Governor of the Commonwealth. 

Sir : — You have submitted to me for examination and report enacted 
bill numbered Senate 823, entitled "An Act modifying and clarifying the 
rule against perpetuities."^ 

The purpose of the "Rule Against Perpetuities" is to prevent property 
from being tied up so that it is perpetually removed from commerce. Ex- 
pressed in technical language, the rule is as follows: "No interest is good 
unless it must vest, if at all, not later than twenty-one years after some 
life in being at the creation of the interest." The purpose of the rule is 
sensible, but after three centuries of existence the rule has become a 
technicality-ridden legal nightmare, dealing with problems of past cen- 
turies, and most frequently being apphed at the present time to defeat 
reasonable dispositions of property. 

The bill which has now been submitted to you for signature seeks to 
cure the three most common and most undesirable applications of the rule. 
The proposed bill adds new "Chapter 184 A. The Rule against Perpetui- 
ties" to our General Laws. Section 1 of the new chapter provides that the 
validity of a future interest in property shall be determined on the basis 
of facts actually existing at the termination of the previous Ufe estate, and 
not upon facts which might have happened but did not. Section 2 provides 
for automatic reduction of an age contingency in excess of twenty-one 
years down to twenty-one years if that excess is a violation of the rule. 
Section 3 will clear titles, frequently in churches, where the interest is 
encumbered by a possibiUty of future right of entry or of reverter if these 
possibilities do not occur within thirty years. The remaining sections of 
the new chapter are nontechnical and aim to carry out the provisions of 
the first three sections. The act is to become effective on January 1, 1955, 
and operates prospectively only. 

The present bill has probably had as careful consideration as has been 
given to any bill in many years. Originally sponsored by experts in con- 

1 The proposed amendment was vetoed by the Governor and his veto was sustained. 1954 Acts and 
Resolves, page 813. 

• Approved by the Governor on June 10, 1954, to become chapter 641 of the Acts of 1954. 



78 P.D. 12. 

veyancing and testamentary law, it has been studied and revised by many 
members of the bench and bar and the teaching profession, as well as by 
the specialized legal associations in Massachusetts dealing with these tech- 
nical matters. A detailed article is contained in the June, 1954, issue of 
the Harvard Law Review (Vol. 67, pp. 1349-1366) under the title "Per- 
petuities Legislation, Massachusetts Style." 

The bill appears to be in proper form, and if enacted into law would, in 
my opinion, be constitutional. 

Very truly yours, 

George Fingold, Attorney General. 



Public Construction Contract — Selection of General Contractor — Error in 

Listing Sub-hid Amount. 

June 15, 1954. 

William H. Harrison, Jr., Major General, AGC, Mass. NG Chairman, 

Armory Commission. 

Dear Sir: — You have requested advice concerning the selection of a 
general contractor for the construction of an armory in Melrose. 

The information supplied by you indicates that Grande & Son, Inc. 
filed the lowest bid in the amount of $369,958. Walter L. Ritchie filed the 
fifth lowest bid in the amount of $379,768. The Ritchie bid listed Warren 
Bros, as a subcontractor and carried the bid at $38,088.10. Subsequently, 
after the selection of Grande & Son as the general contractor, the filed 
sub-bids were opened. It then appeared that the Warren Bros, bid as 
filed was in the amount of $26,875. Ritchie asserts that his bid should be 
reduced by inserting the correct figure for Warren Bros., thus making him 
the lowest bidder. 

You have asked whether the bid of Ritchie may or must be modified in 
accordance with this claim. 

It is our opinion that the bid of Ritchie should not be so modified. In 
the case of Gifford v. Commissioner of Public Health, 328 Mass. 608, the 
court said, at page 615: 

"... after the time for filing has expired, a general contractor is bound 
by his bid as filed, and no form of testimony, written or oral, can be re- 
ceived to prove that the bid had some meaning not ascertainable on its 
face." 

The bid filed by Ritchie is clear and unambiguous on its face. Its mean- 
ing cannot be changed by reference to other written or oral evidence. 
It is noted that the provisions of G. L. c. 149, § 44C, state in part that 

"No recorded sub-bids shall be opened by the awarding authorities 
until after the selection of the general contractor." 

In accordance with this provision Grande & Son would already be se- 
lected as general contractor before the sub-bid of Warren Bros, was 
opened. Under the statute, the sub-bids would then be compared A\ith 
the figures used by Grande & Son as the selected general contractor, but 
no occasion would arise to compare the sub-bids with the bid of Ritchie 
except in accordance with the provisions of section 44C (D) relating to 



i\D. 12. 79 

the substitution of subcontractors. No problem of substitution arises in 
the present case. 

In summary, the awarding authority lacks power under Massachusetts 
statutory provisions to modify the bid of Hitchie under the circumstances 
stated. Federal funds are involved and Federal approval is necessary on 
this project. We express no opinion concerning the applicability of Fed- 
eral laws or regulations concerning this problem. 

Very truly yours, 

George Fingold, Attorney General, 

By Joseph Elcock, Jr., 

Assistant Attorney General. 

Epileptic — Emergency Commitment to State Hospital — Procedure after 
Termination of Emergency. 

June 24, 1954. 
Jack R. Ewalt, M.D., Commissioner of Mental Health. 

Dear Sir: — You have recently asked this department for an opinion 
relative to the emergency commitment of an epileptic to the Monson State 
Hospital. 

You state the following facts: The patient in question, who was suffer- 
mg from epilepsy, but was not insane, was committed to the Monson State 
Hospital by the district court of Springfield. This commitment was made 
under the provisions of G. L. c. 123, § 69, which section adopts the pro- 
cedural provisions of section 62 of that chapter. The examining physicians 
certified that the case was "one of emergency." The court thereupon 
ordered the commitment without a summons or hearing. This procedure 
is permitted by section 62. The patient is now being held at the Monson 
State Hospital by virtue of this emergency commitment order. 

Under this set of facts you request an opinion as to the following ques- 
tion : 

"As no other provision is made by the statutes for the emergency ad- 
mission of persons with epilepsy to the Monson State Hospital except by 
the certification as such by the examining physicians under G. L. c. 123, 
§ 62, and as the word 'emergency' generally denotes a situation for a brief 
period only, should such a committed case be returned to the court when 
physically and mentally able to do so to demand or waive the rights of a 
hearing as the case may be and subsequently become committed in due 
'orm?" 

Your question is answered in the affirmative unless you are entitled to 
■elease the patient under the provisions of G. L. c. 123, § 89. Under the 
'acts which you have submitted to me you have two alternatives: first to 
release the patient under section 89; or, second, to return the patient to 
the court for further proceedings and for possible commitment in due form. 
Jnce the emergency has terminated it becomes your duty to take actiori 
mder one or the other of these two alternati\'es. To continue to hold the 
jatient after the emergency has ended would be a restraint without due 
process of law and would be a basis for a release on habeas corpus. 

The grounds for release under section 89 are spelled out clearly in that 
itatute. If these grounds exist, then action should be taken under such 
ection. But before there is a release under section 89 you should give 



80 P.D. 12. 

notice of intention to release to the judge who signed the emergency com- 
mitment order, and also to the guardian of the patient and to other per- 
sons interested. 

If there are no grounds for release under section 89, you or the superin- 
tendent of the State hospital should take steps to have the commitment 
confirmed or a new commitment made in due manner. There is no special 
procedure spelled out in chapter 123 for further proceedings after an emer- 
gency commitment under sections 62 and 69. A reasonable and safe pro- 
cedure for you to follow in this case when the emergency is ended, is for 
you or the superintendent of the Monson State Hospital to present a 
formal request to the judge who signed the emergency commitment order, 
reciting the facts, stating that in your opinion the emergency is ended, 
and asking for the issuance of a summons to the patient and also for a 
hearing on the matter, and requesting a court order as to whether or not 
the patient shall be released or shall be committed under said sections 62 
and 69. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 



School Building Assistance Commission — School Construction Grant — 
Ejject of Similar Federal Grant — Formula for Amount of State Aid. 

June 25, 1954. 

Mr. John E. Marshall, Administrator, School Building Assistance Com- 
mission. 

Dear Sir: — ■ Your recent letter to the Attorney General makes inquiry 
as to the amount of school construction grant which can be made to the 
town of Bedford under the provisions of St. 1948, c. 645. 

I understand from your letter that the town of Bedford has applied to. 
your commission for a school construction grant under the provisions of 
St. 1948, c. 645, § 7, and that you are now called upon to determine the 
cost to which the formula in section 9 is to be applied. You state that the 
building is estimated to cost about $600,000. \ ou also state that the sum 
of $170,000 has been granted to the town of Bedford by the United States 
under the provisions of U. S. C. Title 20, cc. 13 and 14, §§231-311. The 
purpose of this Federal grant is to provide assistance for the construction 
of urgently needed school facihties in school districts which have had sub- 
stantial increases in school membership as a result of new or increased 
Federal activities. 

Upon the basis of these facts you request an opinion as to the following 
question : 

" In the determination of the amount of the State school construction 
grant to be made to the town of Bedford, should the School Building 
Assistance Commission deduct the amount of the Federal grant from the 
cost of the school?" 

The answer to your question is in the negative. The formula which the 
Legislature has adopted to govern the amount of a school construction 



P.D. 12. 81 

giant is fixed by St. 1948, c. 645, § 9, as amended by St. 1954, c. 329. 
I'nder subdivision (o) of this section it is provided that "the total con- 
struction grant" shall be computed upon the basis of "the final approved 
cost of the project." There is no provision in this formula, nor in any 
other portion of the laws relating to the School Building Assistance Com- 
mission, "which permits or authorizes the deduction from the "final ap- 
proved cost" by reason of a contribution from the Federal Government or 
by reason of a gift of any kind. A statute of this kind calling for a contribu- 
tion by the State toward the cost or expense of some approved project, 
in which the word "shall" is used, is a mandatory provision; always sub- 
ject, of course, to money being appropriated therefor by the Legislature. 
Milton V. Auditor of Coninwturealth, 244 Mass. 93. The duty of your com- 
mission is to certify to the Comptroller the amount due under the formula 
as actually adopted by the Legislature. 

This interpretation is fully confirmed by the two cases, each entitled 
Boston V. Conrmoyurealth, reported at 322 Mass. 177, and 322 j\Iass. 181. 
Such cases related to the obligation of the Commonw^ealth to reimburse a 
city or town "for one third of the amount of the aid given" under the Aid 
to Dependent Children Act. In those cases the Commonwealth con- 
tended that the amount of Federal funds received by the city for this 
purpose should be deducted before the one-third obligation of the Com- 
monwealth was computed. This contention w^as overruled. The court 
stated : 

"Nowhere does the statute base the Commonwealth's contribution on 
one third of the net expense incurred by the city, but on the contrary it 
fixes the extent of the contribution as ' one third of the amount of the aid 
given.' . . . The measure of the Commonwealth's liability is one third 
of the amount of aid given. We cannot read into the statute a reduction 
of that liability by giving the Commonwealth a credit by reason of the 
allocation of Federal funds. We are supported in this construction of the 
statute by the failure of the Legislature to change this proportion even 
after Federal grants were made . . . The share of the Commonwealth's 
contribution remained the same as it always had been. Federal grants 
were not to be included in a computation of the obligation to contribute 
to the town furnishing the aid, for the extent of that obligation continued 
as 'one third of the total amount disbursed.' The reimbursement of the 
city to the extent provided by the statute was mandatory and does not 
permit the deduction sought by the Commonwealth." 

If the Legislature had intended another kind of formula it could have 
stated such intention in clear language. For example, there is a different 
formula stated in G. L. c. 74, § 1, with regard to reimbursement by the 
Commonwealth in connection with vocational education. In such section 
the obligation of the Commonwealth is based upon "the total sum raised 
by taxation" for such project. 

In vieW' of the definite formula stated in the statute relating to your 
commission, and the fact that in at least one other statute a formula 
which would have permitted deductions has been stated by the Legislature, 
and particularly in view of the constant scrutiny of the provisions of law 
relating to your commission and of the many amendments made to that 
law wdthout there being any reference to deductions for Federal grants 
which presumably are familiar to the Legislature, the only answer which 



82 P.D. 12. 

can be given to your question is that in the determination of the amount 
of the State school construction grant to be made to the town of Bedford 
your commission cannot deduct the amount of the Federal grant from the 
cost of the school. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorney General. 

State Employees — Compensation for Overtime — Who are "Heads of De- 
partments and Divisions and Their Deputies and Assistants" under 
G. L. c. 149, § 30 A. 

June 29, 1954. 

Hon. John A. Volpe, Commissioner of Public Works. 

Dear Sir: — You have recently requested my opinion as to the validity 
of payments of compensation for overtime work heretofore made to the 
Chief Engineer and to the Director of WaterA^ays of the Department of 
Public Works during the fiscal years 1952 and 1953. 

Compensation for overtime work can validly be paid to certain em- 
ployees of the Commom^ ealth under the provisions of G. L. c. 149, § 30A. 
But the two employees you mention would not have been entitled to 
overtime compensation unless they came "\\ ithin the provisions of said sec- 
tion BOA. That section excludes from its provisions "heads of departments 
and divisions and their deputies and assistants." The question you pro- 
pound, therefore, turns upon Vvhether or not the persons mentioned in 
your letter held positions "which are excluded from section 30A by the 
above provision. 

The duties of the Chief Engineer of the Department of Public Works 
have been specified and established, bj^ the Division of Personnel and 
Standardization in the Commission on Administration and Finance in 
accordance with G. L. c. 30, § 45, as follows: 

"Chief Engineer, Public Works Department 

"Definition of Class; Duties: Subject to administrative approval, to 
direct the engineering activities of the Department of Public Works; to 
assist the Commissioner of Public Works in his administrative duties, to 
perform related work as required. Approved in Council, June 16, 1948." 

In addition to the above formal specification, your inquiry and the ma- 
terial which you have sent to me state specifically that, during the fiscal 
years 1952 and 1953, the Chief Engineer of the Department of Public 
Works was the employee "assigned in the absence of the Commissioner to 
be in complete charge of the Department." 

The position of Director of Waterways is provided for in G. L. c. 16, 
§ 5A. That section creates a Division of Waterways in the Department 
of Public Works. The section then provides: 

"The commissioner shall with the approval of the governor, appoint a 
director to have charge of the work of the di^'ision . . . The director 
shall . . . devote his entire time to the work of the division." 



P.D. 12. 83 

It is clear, from the respective duties assigned to these two men by the 
statutes and by the specifications provided for by statute, that these men 
held positions of "heads of departments and divisions and their deputies 
and assistants" which are excluded from section 30A. Neither of these 
men, therefore, was entitled to compensation for overtime work performed. 

Very truly yours, 

George Fingold, Attorney General. 



Board of Registration of Hairdressers — Refund of Fee if Examination is 

not Taken. 

June 29, 1954. 
Mrs. Hazel G. Oliver, Director of Registration, 

Dear Madam: — You have recently asked this department for an 
opinion regarding the refund of money paid by an applicant as a fee for 
taking an examination. 

Your question involves the interpretation of the provisions in chapter 
112 of the General Laws relating to the registration of hairdressers. In 
sections 87V, 87W, 87X and 87BB, dealing with operators, hairdressers, 
demonstrators, manicurists and instructors, there are procedural require- 
ments for an application for registration, "accompanied by an examination 
fee," for examinations, and for registration. Section 87II of this chapter 
provides for a penalty in case a person not duly registered by the Board 
of Registration of Hairdressers engages in any of the occupations covered 
by these sections. 

You call my attention to section 87KK, added by St. 1951, c. 509, which 
provides that every applicant shall receive notice prior to an examination, 
and then provides that: 

"If the applicant does not appear for any one of three examinations of 
which he is notified, the examination fee, as pro\dded in section eighty- 
seven CC, shall be retained by the board, and thereafter such applicant 
shall register anew as provided in sections eighty-seven T to eighty- 
seven JJ, inclusive. . . ." 

I understand from your letter that an applicant has received a notice 
of an examination but has failed to appear for the examination, and such 
applicant has made a request for refund of the money paid as an examina- 
tion fee. Upon the basis of these facts you ask the following question: 

"If the applicant applies for a refund any time before taking the exami- 
nation, but after having received any one of his notices, is the department 
obliged to refund the money?" 

The answer to the above question is in the negative. There is nothing 
in any of the sections relating to registration of hairdressers, sections 87T 
to 87KK inclusive, which either expressly or impliedly requires the board 
to refund an examination fee paid by an applicant. The reference in the 
new section 87KK that under certain circumstances the examination fee 
"shall be retained by the board" doesnotmean that in other circumstances 
the examination fee is to be refunded. This provision in section 87KK 
merely provides that, at a certain time and under certain circumstances, 



84 P.D. 12. 

that examination fee paid by the applicant is to be retained by the board 
and that thereafter the appUcant in question must pay a new fee in order 
to be entitled to take an examination. 

The payment of a fee to the Board of Registration of Hairdressers covers 
many services of the board of a clerical and administrative nature. Many 
of these duties are performed even in connection with an applicant who 
fails to appear for an examination. Under the circumstances which you 
have set forth in your letter there is no obligation upon the board to refund 
the examination fee paid. 

Very truly yours, 

George Fingold, Attorney General, 

By Lowell S. Nicholson, 

Assistant Attorneij General. 



INDEX TO OPINTONS 



PAGE 

Abandoned project; compensation for services 32 

Assistant register of probate: 

Payroll certification for 34 

Payroll payment for 39 

Borings, error in; reliance thereon by contractor; public contracts . . 42 
Boston Arena Authority; tort liability; liability insurance .... 37 
Capital Outlay Funds: 

Use of for construction of fences; Division of Waterways; Department 

of Public Works 74 

Use of for repairs; Division of Waterways; Department of Public Works 26 

Civil Defense Act; re-emplojrment of teachers 44 

Compensation for services on project later abandoned; Department of 

Public Works 32 

Compensation to State employee; overtime work on holiday .... 31 

Concurrent sentences; date of eligibility for parole of prisoner serving . . 28 

Contract: 

Substantial change in; extra work order; pubUc building construction . 58 

Validity of; group hfe insurance policies for purchasers of security . . 55 

Criminal procedure; effect of "filing" a criminal case 30 

Dictaphone, use of; wire tapping; proposal to restrict power of Attorney 

General and district attorneys 75 

DisabiUty, non-service connected; waiver by veteran; workmen's compen- 
sation 46 

Emergency commitment to State hospital; procedure after termination of 

emergency; epileptic 79 

Eminent domain : 

Damages; tax apportionment on land taken 51 

Damages for interference with right of navigation; as element of damage 

when land taken 33 

Employees, State: 

Compensation for overtime; who are "heads of departments and divisions 

and their deputies and assistants" under G. L. c. 149, § 30A . . 82 

Compensation to; overtime work on holiday 31 

Re-employment of disabled veteran; voluntary resignation of veteran . 61 

Retired; proceeds after retirement; group insurance 65 

Epileptic; emergency commitment to State hospital; procedure after termi- 
nation of emergency 79 

Examination ; refund of fee if examination not taken ; Board of Registration 

of Hairdressers 83 

Excise tax on motor vehicles, suspension of registration for non-pajTnent of 29 
Extra work order; substantial change in original contract; public building 

construction 58 



86 P.D. 12. 

PAGE 

Facsimile signature, authority to use; indemnity agreement for misuse of 

such signature; MetropoUtan State Hospital 48 

Federal grant; formula for amount of State aid; school construction grant 80 

" Filing " a criminal case, effect of 30 

General Court, and its committees and commissions; penalty for failure to 

appear as witness after summons; G. L. c. 3, § 28A . . . .71 
Hairdressers, Board of Registration of; refund of fee if examination is not 

taken 83 

"Heads of departments and divisions and their deputies and assistants" 
under G. L. c 149, § 30A; State employees; compensation for over- 
time 82 

Highway fund; bond issue proceeds: 

Use of for maintenance shop 40 

Use of for parking facilities 50 

Holiday, overtime work on; compensation to State employee . . . .31 
Hospitalization rates for prematurely born infants; interpretation of incon- 
sistent statutes 57 

Income tax return; service of notice of delinquency on prisoner ... 66 
Infants, prematurely born; hospitalization rates for; interpretation of in- 
consistent statutes 57 

Insurance: 

Group; retired State employee; proceeds after retirement .... 65 

Liability; tort liability; Boston Arena Authority 37 

Policies (group hfe) for purchasers of security; vahdity of contract; Ulusory 

contract 55 

Maintenance shop, use of bond issue proceeds for; highway fund ... 40 
Massachusetts Business Development Corporation; no filing fee for organ- 
ization certificate 25 

Massachusetts, University of; teaching assignments 35 

Metropolitan State Hospital; authority to use facsimile signature; indemnity 

agreement for misuse of such signature 48 

Minor children, neglect of; persons subject to penalty; conduct which is 

subject to penalty; G. L. c. 273, § 1 73 

Motor vehicles; suspension of registration for non-payroent of excise tax on 

motor vehicles 29 

Name, change of; educational institution; Springfield College; referral to 

Board of Collegiate Authority; interpretation of statute ... 69 

Navigation, damages for interference with right of 33 

Organization certificate, no filing fee for; Massachusetts Business Develop- 
ment Corporation 25 

Overhanging canopies; State highways; obstruction 34 

Overtime, compensation for; State employees; who are "heads of depart- 
ments and divisions and their deputies and assistants" under G. L. 

c. 149, § 30A 82 

Overtime work on holiday; compensation to State employee . . . .31 
Parking fac'lities; use of bond issue proceeds; highway funds ... 50 
Parole, date of eligibility for, of prisoner serving concurrent sentences . . 28 



P.D. 12. 87 

PAGE 

Payroll certification for assistant register of probate 34 

Payroll payment for assistant register of probate 39 

Perpetuities, rule against; rule modified and clarified; G. L. c. 184A 77 

Prisoner : 
Date of eligibility for parole of prisoner serving concurrent sentences 28 

Service of notice of delinquency on ; income tax return .... 66 
Province lands; authority of Commissioner of Public Works to transfer 
province lands from Division of Waterways to Division of Public 

Beaches 60 

Public building construction: 

Bid statute; extra work order; substantial change in original contract 
Form of bid security; bank trea.surer's check not acceptable 
Pubhc contract: 

Acceptance of written bid; signed check constituting signature . 
Effect of "purchase order" as a contract; right to cancel 

Error in borings; reliance thereon by contractor 

Selection of general contractor; error in listing sub-bid amount . 
Public Works, Department of: 

Compensation for services on project later abandoned .... 
Division of Waterways; use of Capital Outlay Funds for 

Construction of fences 

Repairs 

Highway funds; bond issue proceeds; use of for 

Maintenance shop 

Parking facilities 

Province lands; authority of Commissioner to transfer province lands 
from Division of Waterways to Division of Public Beaches . 
"Purchase order," effect of as a contract; right to cancel; interest of State 

officer in public contract 

Resignation, voluntary, of veteran; re-employment of disabled veteran; 

State employee 

Retirement benefits under St. 1952, c. 624; not available to veteran retired 

under G. L. c. 32, §§ 56-60 

Retirement. 

Effective date; immediate appointment to new State office . 

Retired State emploj^ee; group insurance 

Salary question, appeal on; State Personnel Appeal Board 

School Building Assistance Commission; school construction grant; effect of 

similar Federal grant; formula for amount of State aid 
Security for bid, form of; bank treasurer's check not acceptable; pubhc 

building construction 

Self insurance by separate division of corporation otherwise covered by 

insurance; workmen's compensation 

Shellfish permit, commercial use ; regulation limiting permit to local inhabit- 
ants; power of Director of Division of Marine Fisheries 
Signature, signed check constituting; public contract; acceptance of written 
bid 



88. P.D. 12. 

PAGE 

Springfield College; change of name; referral to Board of Collegiate 

Authority 69 

State highways; obstruction; overhanging canopies 34 

State hospital, emergency commitment to; procedure after termination of 

emergency; epileptic 79 

State Personnel Appeal Board; appeal on salary question .... 46 
State Purchasing Agent; effect of "purchase order" as a contract; right to 

cancel ; interest of State officer in public contract 63 

Sub-bid amount, error in listing ; pubUc construction contract ... 78 

Tax apportionment on land taken; damages 51 

Teachers, re-employment of; Civil Defense Act 44 

Teaching assignments; University of Massachusetts 35 

Tort liability; liability insurance; Boston Arena Authority .... 37 
Veteran : 
Disabled, re-employment of; voluntary resignation of veteran; State 

employee 61 

Retired under G. L. c. 32, §§ 56-60; retirement benefits under St. 1952, 

c. 624 not available to 27 

Waiver by; non-service connected disability; workmen's compensation . 46 
Vocational rehabilitation. State plan for; administration of such plan . 23 

Wire tapping or use of dictaphone; proposal to restrict power of Attorney 

General and district attorneys; veto by Governor 75 

Witness, penalty for failure to appear as, after summons; General Court, 

and its committees and commissions 71 

Workmen's compensation: 
Self insurance by separate division of corporation otherwise covered by 

insurance 67 

Waiver by veteran; non-service connected disability 46 

Zoning enabling law (G. L. c. 40A) ; effect on existing zoning ordinances and 

by-laws 62 



MASSACHUSETTS STATUTES CITED. 



PAGE 

Constitution. 

Amend. 62 40, 41 

78 51 

Statutes. 

1893, c. 470 60 

1902, c. 464 33 

1916,0.288 60 

1919, c. 350, § 111 60 

§ 113 60 

1927, c. 297 60 

1931, c. 394, § 71 60 

1938, c. 407 60 

1939, c. 480 55 

1941, c. 598 49 

c. 699 55 

c. 708, § 1 62 

1945,0.623 47 

1948, c. 645 80 

1950, c. 639, § 9 44, 45 

c. 688, § 3 21 

1951, c. 509 83 

1952, c. 556 40, 41 

0. 585 23, 24, 25 

0. 604 26, 27, 74, 75 

■ 0. 624, § 2 27, 28 

0. 626 31 

c. 630 23, 24 

1953,0.631 49 

c. 634 51, 52, 53 

0. 636, § 2 57 

C.666 61 

c. 669 37 

c. 671 25 

1954,0.329 81 

0. 368 62 

c. 454 71 

0. 539 73 

0. 641 77 

Genebal Laws. 

c. 3, § 28A 71 

0. 4, § 7, cl. 38 72 

c. 7, § 13 35, 39 

§ 30K 57, 58 

c. 15 24 



page 

§4 25 

0. 16 61 

§2 60 

§5A 82 

c. 21, § 1 49 

§5 49 

c. 29, § 8A 43, 72 

§20 39,40 

§31 36 

c. 30, § 1 62 

§9A 62 

§ 24A 31, 32 

§45 35,82 

§§53-57 46 

0. 31 44 

c. 32, § 3 (7) ((7) 21 

§7 28 

§§56-60 27 

§57 22 

§ 58 21, 22, 23 

§83 23 

§ 85E (a) 28 

c. 40, § 5 (44) 65 

§ 25-30B 62 

c. 40A 62 

0. 59, § 5 52, 53 

0. 60A, § 2A 29 

0. 62, § 56 66 

c. 69, § 30 69, 70 

0. 74, § 1 81 

c. 75, §§ 9, 10 36 

0. 79, § 3 52 

§ 12 52 

§ 39 52, 53 

0. 81, § 21 34 

c. 90, § 34 50 

c. 91, § 25 60 

§61 61 

c. 92A 41 

0. Ill, §67C 57,58 

0. 112, §§87T-87KK 83 

0. 123, § 62 79 

§69 79 

§89 79 

c. 127, § 6 66 

§ 133 28 



90 



P.D. 12. 



PAGE 

c. 130, § 38 60 

§ 52 48, 49, 50 

§ 57 50 

§74 49 

c. 149, §30A 31,82 

§§ 44A-44D . . . . 54, 59 

§44C 78 

c. 152, § 1 67 

§25A 67 

§ 46 46, 47 

c. 155, § 13 25 

c. 156, § 53 25 

§55 25 

c. 175, § 121 57 



PAGE 

§§ 133-138A 65 

§ 133 (c) .... 55, 56, 57 

c. 178, § 27 71 

c. 184A 77 

c. 217, § 15 40 

§§ 23, 24, 25A, 27, 33, 35B . 35 

c. 233, §§ 5, 13, 13A 71 

c. 260, § 7 66 

c. 268, § 10 64 

c. 272, § 99 75 

c. 272, "§99A" 75 

c. 273, § 1 73 

c. 279, §§ 1, lA 30 



^f 



r